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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Grãme v. Grãme's Trustees [1868] ScotLR 6_7 (21 October 1868) URL: http://www.bailii.org/scot/cases/ScotCS/1868/06SLR0007.html Cite as: [1868] SLR 6_7, [1868] ScotLR 6_7 |
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Page: 7↓
Held that a mutual settlement subscribed by two notaries and four witnesses was validly executed.
Robert Græme, heir-at-law of the deceased James Græme and Catherine Græme, sought in this action to reduce a mutual disposition and deed of settlement executed by these parties, and subscribed for them by notaries public, the attestation running thus:—“We, James Hamilton and William M'Lean, notaries-public and co-notaries in the premises, at the special request of the before-named and designed James Græme, who declares he cannot write from being unable to see, in consequence of inflammation of the eyes; and also at the special request of the before-named and designed Catherine Græme, who declares that she cannot write by reason of paralysis in her hands; and the said parties respectively having touched each of our pens, in token of their warrant and authority to us to subscribe for them respectively, in presence of the subscribing witnesses, do subscribe these presents for each of them before and in presence of the subscribing witnesses, these presents having been duly read over to the said parties in presence of us and the subscribing witnesses. (Signed) Fides, Jas. Hamilton, notary-public. Veritas Vincit, William M'Lean, notary-public. Arch. Macdonald, witness; David Gardiner, witness; Hugh Jackson, witness; R. Sinclair, witness.” The ground of reduction now insisted in was that the deed was not legally executed, the same notaries-public having subscribed for each of the parties to the deed.
The Lord Ordinary ( Ormidale) repelled the plea, adding this note:—
“The only point raised before the Lord Ordinary under the pursuer's first two pleas in law now repelled, is that referred to in the second plea, viz., that the same notaries-public subscribed for each of the two parties to the deed in question, which it was maintained for the pursuer was a fatal irregularity, as appears to have been found in the old case of Craig v. Richardson, 27th June 1610, Mor. 16,829. But in that case the deed was a contract, and although no detailed explanation either of the facts of the case or of the opinions of the judges is given, it may, the Lord Ordinary thinks, be assumed that the two parties to the contract had adverse or antagonistic interests. The deed in the present case can scarcely be held to have any such characteristic, or to be of the nature of the contract at all. Although it bears to be a mutual settlement by two persons, a brother and a sister, it partakes as little as possible of the nature of a pactional engagement. It is substantially little more than a mortis causa settlement by two persons respectively, written in one in place of two separate instruments. It could hardly be doubted that the same two notaries might have acted for both the parties in the execution of their respective settlements if engrossed as separate deeds or writings, and accordingly the Lord Ordinary, keeping in view the peculiar nature of the settlement in question, has been unable to see sufficient ground, either on authority or principle, for holding that it was irregularly executed. There is nothing in the words of the statute, relating to the intervention of notaries in the case of persons unable to write, which can be held to require that for every party to a deed there must be different notaries; and there is nothing here in the nature of the deed itself, or in the position of the notaries, who are public functionaries, that can reasonably be held to render that indispensable. The two parties to the deed in question had not opposing or antagonistic interests as in a proper contract, and it is not said that the notaries had any interest whatever in the matter, either as beneficiaries under the deed or from relationship to the parties
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or either of them. In these circumstances, and even supposing that the case of Craig v. Richardson must be considered as conclusive authority so far as it went, although the Lord Ordinary cannot help entertaining some doubt as to that, there does not seem any sufficient ground for holding that the execution of the deed in question is exposed to any fatal irregularity.” The pursuer reclaimed.
Scott and M'Lean for reclaimer.
Clark and Lamond for respondents.
The Court unanimously adhered.
In the case of Craig v. Richardson, 27th June 1610, briefly reported in Morrison 16,829, the decision does not appear to me to involve necessarily the view that the writ was void in respect of statutory nullity. It may rest, and I think does rest, rather on a principle of common law, that in a contract, the parties contracting should be separately represented, and that one notary, or, as in this case, two notaries, shall not subscribe for both parties, since, in a contract their interests are viewed as adverse. The decision so understood is quite intelligible, and in accordance with the practice of the court to protect persons defenceless from their years or their infirmities; and, so viewing the decision, I am not disposed to disturb it, nor do we disturb it by repelling the objection in the present case. We have here a mutual settlement by two aged persons, brother and sister, with a clause reserving power to both and each of them, and to the longest liver of them, to alter and cancel the same in whole or in part. This deed is in my opinion testamentary, ambulatory, revocable, and not a contract. It is not so in words, and there are no counterpart obligation. It is true, however, that a deed may possess to some effects the character of a contract in respect of its mutuality, even though there be no words of contract therein. Such an effect was given to the mutuality of a deed in the case of Campbell v. Campbell's Trustees, 1 Macpherson 647, where a mutual settlement, though testamentary quoad the beneficiaries, was considered pactional quoad the granters. But the contract which may thus arise from the mutuality of the deed is just a contract not to alter or revoke it. That is the only contract implied in its mutuality. The power to revoke a testamentary deed is in such a case excluded by the contract implied from its mutuality. But here that implied exclusion of power to revoke is met by express reservation of the power, reservation not only to each of the parties, but to the survivor, and thus the only contract which can be implied from the mutuality of testamentary writings is shut out by express words. There is no contract here. I take the case put by the Lord Ordinary. Suppose that there had been two other by Catherine Græme, to the same effect as in separate writings, the one by James Græme, and the this mutual deed. It is plain that if each writing was signed by two notaries and four witnesses, the requirements of the statute would be fulfilled, and the fact that the notaries and the witnesses were the same in both writings would have created no statutory nullity. If, however, the writings were relative, and were executed unico contextu as mutual and counterpart settlements, it may well be that the power to revoke, which is incident to testamentary writings would be held excluded by the mutuality. A contract not to revoke would be accordingly implied; and in respect of the character of contract thus given to the mutual settlement, it may even be that the principle of the decision in Craig v. Richardson might apply, and the Court might be of opinion that the same notaries ought not to subscribe for both parties.
Here there is no other contract but that which may be implied from mutuality; the contract implied from mutuality is simply a contract not to alter or revoke; no contract can be implied where the contrary has been expressed; the power to alter or revoke is here expressly reserved to both parties and to the survivor; and the contract not to alter or revoke, which might otherwise have been implied, is excluded. Therefore there is no contract here; and as there is no statutory nullity, the objection stated in the first two pleas for the pursuer has been rightly repelled.
Another part of the case remains for investigation, and it may be that the fact on which this objection is founded may there be of some importance. On that point it would be premature now to offer any opinion.
Agent for Pursuer— A. K. Morison, S.S.C.
Agent for Defenders— James Webster, S.S.C.
