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You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> James Rose Innes, Esq. - Ada - Keay v. James, Earl of Fife [1827] UKHL 2_WS_637 (20 June 1827) URL: http://www.bailii.org/uk/cases/UKHL/1827/2_WS_637.html Cite as: [1827] UKHL 2_WS_637 |
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Page: 637↓
(1827) 2 W&S 637
CASES DECIDED IN THE HOUSE OF LORDS ON APPEAL FROM THE COURTS OF SCOTLAND, 1827.
1 st Division.
No. 56.
Subject_Sasine — Member of Parliament — Freehold Qualification. —
Held, ex parte, (affirming the judgment of the Court of Session,) in a question relative to freehold qualification, that part of the name of one of the parcels of land enumerated in the sasine founded on having been written throughout the instrument on erasures, the sasine was not sufficient to establish the qualification.
By a crown charter of resignation, dated the 2d, and sealed the 6th June 1825, in favour of Mrs Rose Innes, there was conveyed to her, “hæreditarie et irredimabiliter, totas et integras terras dominicales, et maneriei locum de Netherdale, molendinum et terras molendinarias earundem, cum multuris, sequelis, lie sucken et knaveship, ad easdem spectan. villam et terras de Husbandtown de Netherdale, Craignethertie, Chapeltown, Millhill, Windyedge, et Coblecroft, cum cymba vectoria ejusdem, et salmonum piscationibus, &c. omnes jacen. in parochia de Abercharder, nunc vocat. Marnoch, et vicecomitatu de Banff, et sicuti dict. terrænunc sunt divisæ in duas portiones, lie lots consisten. cognitæ et sub nominibus et descriptione sequen. appellatæ, viz. Portio prima de Wester Craignethertie, sicuti in præsenti per Joannem Walker possessa, Oldtown seu Husbandtown de Netherdale, et parte de Coblehouse, per Alexandrum Roberts, Coblehouse, et cymba ejusdem, per Johannem Courage, Harperhill et Broadgate, et parte de Oldtown de Netherdale, per Alexandrum Sim,”&c.; “et portio secunda earundem, de prædio et molendino de Netherdale et Windyedge” &c. By a clause of dispensation, sasine was allowed to be taken, “ad maneriei locum de Netherdale, maneriei locum de Pittendriech, vel super fundo ullius partis vel portionis diet. terrarum de Netherdale aut Pittendriech, vel supra ulla parte terrarum aliorumque in hac antea disposit. per traditionem terræ, et lapidis fundi earundem tantum.”
Mrs Innes, on the 9th June, executed a disposition, in favour
Page: 638↓
Page: 639↓
Founding on these titles, and a certificate of valuation, Mr Innes claimed to be enrolled as a freeholder, at a meeting held on the 29th June 1825, for the election of a representative. Against this claim, Lord Fife objected, “that among other lands on which the claimant demands enrolment, are the town and lands of Oldtown or Husbandtown of Netherdale, and part of Coblehouse, (possessed) by Andrew Roberts, Coblehouse, and boat thereof, by John Courage;” but from essential “vitiations and erasures in the instrument of sasine produced,
Page: 640↓
Mr Innes answered, “that the erasure or vitiation is not in substantialibus. There can be no dispute that sasine was given of all the lands contained in the conveyance. Further, the charter, and the conveyance, and the instrument of sasine, comprehended generally all the lands, contained in lot first of the estate of Netherdale, as ascertained by the decreet of division of the commissioners of supply; and, therefore, any enumeration of particulars was superfluous; while that decreet proves, at the same time, that the valuation of the lands contained in lot first exceeds L.400 Scots. The charter in favour of Mrs Rose Innes refers to a division of the valued rent of the estate of Netherdale, and it describes particularly certain lands as being comprehended under the first lot, and certain other lands as being comprehended in lot second; and the disposition by Mrs Rose Innes, after conveying certain lands by name, gives to the claimant all the lands comprehended in lot first, under whatever other name the same may go; and the sasine is in exact conformity to that general description.”
A majority of the freeholders having sustained the objection, Mr Innes complained to the Court of Session. The Lord Ordinary (to whom the case was remitted for preparation) reported it on Cases; and thereafter the Court submitted this question to the other Judges:—
“It being admitted, that the latter part of the word Coblehouse in the sasine is written on an erasure, does this constitute such an objection as to vitiate the sasine, and render it null and void?”
The Judges (Lords Cringletie and Eldin dissenting) were of opinion “that the erasures in the different passages of the sasine in favour of the complainer as to the latter part of the word Coblehouse, vitiate the sasine, and render it null and void.” Thereon, the
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* It was likewise objected that the claimant's disposition gave him right to the “lands of Craignethertie,” while his sasine applied to the ‘lands of Wester Craignethertie;’ and the plea was also maintained, that the sasine was given at the manor-place of Netherdale, in virtue of a clause of dispensation, which was only thus noticed, “virtute clausulæ dispensationis infra mentionat.” and not afterwards contained in the instrument. But these objections were not considered by the Court to be of weight, and did not enter into the discussion at the bar of the House of Lords.
Page: 641↓
The complainer appealed, but no appearance was made for Lord Fife.
Appellant.—The erasure is such as to exclude all suspicion of fraud. The instrument was recorded on the very day the sasine was given; and the record agrees with the sasine in description. The deeds referred to in the instruments are identified. The erasures occur in three places: in stating the contents of Mrs Innes' charter of resignation,—of her disposition and assignation to the appellant,—and in the enumeration of the lands in which sasine was given. None of these erasures can be considered as vitiations in substantialibus. As to the two first,— the charter and disposition are admitted to be unchallengeable; but the instrument of sasine merely gives the contents of these deeds; and there are no legal grounds for holding that an error in that recapitulation,—an error that can be instantly corrected by reference to the principal,—must be fatal. As to the third erasure :—it occurs in a passage in the instrument, which passage, without injury to the appellant, might have been omitted altogether. Symbolical delivery was given, “Totarum et integrarum illarum partium et portionum de prædictis terris et hæreditate de Netherdale componen. primam portionem lie lot earundem.” If the notary had stopped here, this clause would (the instrument narrating also the dispositive clause of the charter, and the conveyance to the appellant “of all and whole those parts of the aforesaid lands and estate of Netherdale, comprehended under the first lot of the same”) have been sufficient to include all the different parcels of land contained in lot first. But the circumstance of the notary having, ex superabundante, again entered on an enumeration, was not of such moment as to weaken the previous certification, that sasine had, de facto, passed on all; and at all events, it was admitted
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* See 5 Shaw and Dunlop, No. 285.
Page: 642↓
The House of Lords ordered and adjudged, that the appeal be dismissed, and the interlocutor complained of affirmed.
Counsel: Appellant's Authorities.— Boyd, Feb. 23, 1822. (1 Shaw and Ball, No. 395.) Napier, June 25, 1822. (1 Shaw and Ball, No. 571.) Denniston, July 7, 1822. (2 Shaw and Dunlop, No. 164.)