Scottish Court of Session Decisions

This was a Special Case for the opinion and judgment of the Right Honourable the Lords of the Second Division of the Court of Session, submitted by John Wilson and Others. The following are the facts upon which the parties are agreed:—

“The said John Wilson and Christiana Johnston or Wilson agreed, in contemplation of their marriage, that by their contract of marriage provision should be made for the contingency of their having occasion to sell or burden with debt the heritable subjects intended to be thereby settled and conveyed; and also to divide and apportion the fee

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of the subjects falling under the conveyances and obligations therein contemplated to and among the children of their marriage; or, in the event of there being no children, to dispone and convey the same by deed to take effect upon the death of the survivor of the spouses.

The draft of their antenuptial contract of marriage accordingly, as prepared for execution and submitted to and approved of by the parties, contained a clause in the following terms:—‘And the said John Wilson and Christiana Johnston, intended spouses as aforesaid, reserve to themselves jointly full power and liberty at any time during their joint lives, by a writing under both their hands, but not otherwise, to sell or burden with debt the heritable subjects above mentioned hereby conveyed, and also to divide and apportion the fee of the subjects and others hereby conveyed, or falling under the conveyances and obligations herein contained, to and among the children of the said intended marriage, or, in the event of there being no children thereof, to dispone and convey the same by deed, to take effect upon the death of the survivor of the said spouses, in such way and manner as they may think proper.’

The contract of marriage, after being engrossed, was duly executed by the parties upon the 6th day of August 1866: and, on the 23d day of August 1866, it was recorded in the Register of Sasines. They were married shortly after the date of the contract.

After the deed had been so recorded, the clerk who had engrossed the same was informed by some one of the officials in the Record Office that an error appeared to have been made in engrossing the deed. It was pointed out to him that in the contract as executed the above clause was thus expressed, viz.:—‘Reserve to themselves jointly full power and liberty at any time during their joint leaves, by a writing under both their hands, but not otherwise, to sell,’ &c:—the word ‘ leaves’ having been written in place of the word ‘lives,’—and the deed had been so entered in the Record of Sasines. Upon this being discovered, the clerk to whom it was made known, who was the same person by whom the deed had been engrossed, did, at his own hand, and without instructions from the agent of the spouses who had prepared the contract, erase the letters ‘ lea’ of the said word ‘ leaves,’ and, by writing the letters ‘ li’ upon the erasure, rendered the word ‘ lives,’—thus making the deed disconform to the record. No mention of this erasure was made in the testing clause; and no addition could or can be made to it as it had been entered in. the record.

Neither the spouses, nor Mr Somerville, their agent, were aware until the present question arose of the circumstances before-stated as to the error in the deed, and the mode taken to obviate it.

The said spouses having recently occasion to borrow a sum of £900, entered into an arrangement with Messrs Taylor and Son for a loan of that amount, to be advanced as at the term of Whitsunday 1869, on the security of heritable property, settled and conveyed by the said marriage-contract, and Mr Wilson and his spouse were to grant a bond and disposition in security over certain subjects situated in Oxford Street, Edinburgh, contained in the said antenuptial contract of marriage.

The lenders have taken exception to the title offered by Mr Wilson and his spouse, on the ground, first, that the testing clause does not contain any mention that the said word ‘ lives’ is partly written on an erasure; and secondly, that the deed in this particular is disconform to the record, where the word is ‘leaves,’ and not ‘lives.’ They contend that in these circumstances the clause above quoted does not effectually reserve to the said spouses power to sell and burden and divide, and that any bond and disposition in security, or conveyance or writing, executed by the said spouses jointly would be invalid and inept.

In these circumstances, the parties desire the opinion of the Court upon the following question of law:—

Whether the partial erasure on the said word ‘lives,’ not mentioned in the testing clause of the deed—and the discrepancy thereby created between the deed and the record,—render the clause above quoted inoperative and ineffectual?

Or, Whether the clause is not sufficient without the words ‘during their joint lives,’ and is not effectual though these words were held pro non scriptis.

If the Court shall be of opinion that the erasure in the deed in the particular above explained vitiates the clause, and renders it inoperative, they are requested to pronounce a decree to that effect. If they are of opinion that the clause is effectual notwithstanding of the erasure, they are requested to pronounce judgment to that effect.

And both parties consent that the opinion and judgment to be pronounced by your Lordships shall not be subject to review of the House of Lords.”

Pattison for spouses.

Hall for lenders.

The Court held that the word might either be taken as “leaves,” which would be a mere clerical error not vitiating the deed, or as “lives;” but the erasure could not have the effect of annulling it.