THOMAS MACMILLAN & Ors v CHARLES CAMPBELL (Court of Session)

Mr Ferrier sold part of the estate, with the price of which he accomplished the purposes of the trust, and he reconveyed the remainder to Mr Campbell, by a disposition, dated 24 March 1808, containing procuratory of resignation ad remanentiam. David Campbell expede an instrument of resignation in his own favour, and then he executed a procuratory of resignation and deed of tailzie in favour of himself in liferent, and of the defender and a certain series of heirs in fee. This deed was recorded in the register of tailzies.

The word written upon an erasure is a material word. It is meant to describe the year when the procuratory was granted; and it is essential in a notorial instrument, either of sasine or resignation, that the warrant should be described by its date. A blank in the day, month, or year, would be a fatal nullity.

II. The pretended resignation ad remanentiam being void and ineffectual, the feudal right of property remained with Mr Ferrier, and is still in his hæreditas jacens; and David Campbell not being reinvested with the right by the pretended resignation ad remanentiam, and having never afterwards acquired such right, no deed granted by him could carry the feudal right to the lands, or serve as a competent warrant for expeding charter and infeftment.

I. The objection to the instrument of resignation is not sufficient to destroy the deed. The erasure is of little importance, as no other date could have been written in that place. The word must either have been ‘last’ or ‘next.’ It plainly could not have been ‘next,’ and therefore it must have been ‘last,’ and consequently the objection cannot avail the pursuers; Maxwell v. Houston, decided in the House of Lords, 30 April 1725, Robertson's Appeal Cases , p. 539.

As to the discrepancy in the day of the month, it was not necessary to describe the disposition by the date on which it was executed. All that was necessary was to describe the procuratory of resignation in such a manner as to leave no doubt of the identity of the warrant upon which the instrument of resignation proceeded; and no omission or slight discrepancy, which does not defeat that object, can be fatal to the instrument. The procuratory of resignation was sufficiently described in this case without the date.