The destination, in the charter, is in favour of the grantee's assignees DESTINATION TO Whilst vassals had no power to dis- ASSIGNEES. whomsoever, as well as his heirs. pone their feus to strangers, or singular successors, these words were held to authorize a disposition in favour of a stranger, at any time before the vassal's right was made real by infeftment. He was entitled, before being infeft, to assign his right to a third party, who thereupon, in virtue of the charter to A. and his assignees, and of A.'s assignation, obtained infeftment, and became the vassal. Now, the right of assignation (if not expressly excluded) is complete without the destination to assignees, as much as with it. I have here to remind you of the rules relative to dispositions to CORPORATIONS. corporations or to companies. The former are, by law, entitled to hold land, their erection or constitution giving them a separate persona to that effect. Joint-stock companies, and banking companies incorporated under the Acts of 1856, 1857, 1858, and 1862, have the same privilege; the extent of the land which they may hold being in certain cases, as already noticed, limited to two acres, unless extended by the Board of Trade. In these cases, the charter will be granted to the corporation in its corporate name, or otherwise, according to the rule laid down in the Act of Parliament, or charter, or letters-patent of incorporation. Thus, in the case of the Bank of Scotland, the titles are made out in favour of 'the Governor and Company of the Bank of Scotland.' Charters to royal burghs will be granted to the provost, bailies, and remanent members of the town council, and their successors in office, for behoof of the whole body and community thereof, and to their assignees. In the Style Book, the style given specifies no names ;3 but I think it would be better, and certainly it can do no harm, to name the existing officebearers. ATED COM- Unincorporated companies, however, are incapable of holding lands; UNINCORPOR as the feudal law-when not bending to contrary provisions, imposed by Act of Parliament, or other competent authority-requires that there shall be one or more individual vassals. In the constitution of a corporation, the power to hold lands is specially given, and the feudal difficulty is thereby got over. But companies formed by private parties have no such privilege. In Morison's case, the disposition was granted to 'Robert Muirhead and Co.,' and the form of title thereby constituted was found ineffectual. But where the disposition of lands, purchased by an unincorporated company, was granted to John Gillies, manager, and one of the partners of the Dalnotter Ironworks, belonging to Messrs. Murdoch, 'Gordon, Gillies, and Co., and to the other partners of the foresaid com'pany, according to their respective rights and interests,' it was held that, if the partners (other than John Gillies) were not immediately invested by the disposition, at least the disponer was divested, and the full right 1 Stair, ii. 4. 32; Erskine ii. 7. 5. 3 Juridical Styles, i. 115. 4 Morison, 18th June 1818, Hume, 720. 2 19 & 20 Vict. c. 47; 20 & 21 Vict. c. 14 & 49; 21 & 22 Vict. c. 60 & 91; and 25 & 26 Vict. c. 89. DESCRIPTION GENERAL transferred to the individual who was named and designed. The usual and correct course, however, where lands are acquired by such companies, is to make the disposition in favour of one or more of the partners, and the survivors or survivor of them, in trust for the company, and existing and future partners, according to their respective rights and interests in the stock of the concern. After the destination to heirs and assignees, we have the expression, ' heritably and irredeemably,' which, though universally employed, is not necessary to make the charter an irredeemable conveyance. It would possess that character, unless perhaps in very special circumstances, if the contrary were not expressed. It is advisable, however, to introduce these words, as well as the destination to heirs and assignees, because it is best in such matters to adhere to universal style. We have next to consider the description of the lands disponed; and what is said on this point is to be understood as referring, not only to the description of lands in an original feu-charter, but also, and even still more, to that in the disposition of an existing fee or feudal estate. The great point is to secure that the description shall embrace everything intended to be disponed; that it shall not contain anything not intended to be disponed; and that the subjects disponed shall be capable of clear and absolute identification. The description may be either general or particular. If general, care is required to make it sufficiently comprehensive without embracing too much; if particular, to see that it omits nothing which ought to be included. Thus far no change has been made by the Titles to Land Acts; but by the Act of 1858, sects. 15 & 16, special modes of abbreviating or of generalizing descriptions, which it is of importance to keep in view, were sanctioned; and a further change, or rather an amendment on the Act of 1858, as regards this point, has been introduced by the Titles Act of 1860. I do not consider either Act, however, to have introduced a novelty in principle, in these particulars, but only to have given practical extension to a principle previously recognised. sary. If the lands disponed have been united, and erected into a barony (which can be done only by the Crown), then, the barony being nomen universitatis, a detailed specification of its constituent parts is not necesThe conveyance of the barony,' generally, will comprehend every component part, whether specified or not. Hitherto, it has not been usual to dispone simply 'the barony. Baronies are created by charters of union and erection from the Crown, which, as well as the subsequent titles, almost invariably contain some specification of the component parts; and the rule of practice, when the whole barony was to be disponed, has been to adhere to the description contained in the existing titles. The proprietor was in possession upon these titles. The disponee was to take his place; and nothing could more clearly indicate that purpose, or more effectively carry it out, than to take from him a 1 Denniston, 16th Feb. 1808, M. App. Tack, No. 15. 2 Argyle, 15th Jan. 1668, M. 9631. The disposition of what was in his titles, and neither more nor less. BY REFERENCE. Another mode of proceeding, which might be competently adopted, DESCRIPTION was to frame the description by reference to the granter's titles, or to a certain deed, specified by its date and the names of parties, and, if necessary, other particulars; or by saying 'all my lands situated to the north,' or otherwise, relatively to a road, or river, or other distinct landmark;1 and the description, though general, might be effectual, without reference to any particular deed.2 The description in the case of Graham's creditors (which, however, was in a heritable bond, where greater latitude was practised in framing descriptions than was usual in a charter) was of All and sundry lands, heritages, and others whatsoever pertaining to me, wherever the same lie in this kingdom.' And the Lords were of opinion, that a precept to give infeftment in lands, 'described, in general, to belong to the granter, is a sufficient warrant to 'give infeftment in every particular tenement, which, by production of 'the granter's infeftment, is vouched to come under the general description.' As the law then stood, it was necessary to go to the ground of the lands in which sasine had to be given, and there to deliver symbolical possession. Charters, therefore, with such descriptions, though perfectly valid as dispositions, did not by themselves form sufficient warrants for giving sasine; because they did not by themselves specify the lands which they embraced. The deed or titles referred to-the granter's infeftments-were required, in addition to the charters, to instruct what was disponed,-to liquidate, as it were, the general description. The same rule held, even after it was rendered unnecessary to go to the ground of the lands, in order to give sasine or infeftment. The charter, with the general description, was a good warrant for the sasine; provided there was shown, by competent proof, what were the lands to which it applied. The simplest mode of doing so was to produce and narrate along with the charter, as warrants of the sasine or infeftment, the infeftments of the granter of the general conveyance. DESCRIPTION LAND ACTS. The Titles to Land Acts have advanced further. As already stated, MODES OF we no longer require to go to the lands in order to give sasine. We no SANCTIONED BY longer require to give sasine, even in words or form. The registration THE TITLES TO of the charter, with warrant of registration annexed, produces the same effect as the completed and recorded instrument of sasine formerly did. And, provided that a particular description of lands can be referred to, as contained in any recorded instrument of sasine or other deed, the Acts supply the means of making the conveyance effectual, and the 1 Belches, 21st Jan. 1815, F. C. 2 Graham's Creditors, 3d August 1753, M. 49. PROVISIONS OF registration thereof equivalent to sasine, without the insertion, in the conveyance, of the particular description of lands. Two modes of proceeding for this purpose were allowed by the Act of 1858. By sect. 15, it was enacted, that where lands had been particularly described in any prior conveyance or other writ, duly recorded in the appropriate register of sasines, it should not be necessary, in any subsequent conveyance or writ, containing or referring to the whole or part of such lands, to repeat the particular description of the lands at length; but it should be sufficient to specify the leading name or names, or other short distinctive description of the lands conveyed, and the name of the county and parish, or supposed parish; and to refer to the particular description contained in the prior conveyance or other writ so recorded, in manner set forth in Schedule L, No. 1, annexed to the Act; which specification and reference are declared equivalent to the full insertion of the particular description contained in the prior recorded writ.1 And by sect. 16, where several lands are comprehended in one conveyance, in favour of the same person, it is made competent to insert a clause in the conveyance, declaring that the whole lands therein particularly described shall be designed and known in future by one general name, to be therein specified; and, on the conveyance containing such clause being duly recorded in the appropriate register of sasines, it is declared competent, in all subsequent conveyances, or other writs, to use the general name specified in such clause, as the name of the several lands declared by such clause to be comprehended under it. A conveyance of such several lands, under the general name so specified, is declared as effectual as if the conveyance contained a particular description of each of such several lands; provided always that reference be made, in such conveyances, to a prior recorded conveyance, or instrument of sasine, or notarial instrument, or other writ, in which such clause and description are contained. The clause of reference may be in the form of Schedule L No. 2, annexed to the Act.2 Neither of these forms was applicable to what may be technically called new descriptions,---that is, descriptions of portions of one or more existing subjects, if such portions are not contained in any prior conveyance or writ. Neither were they applicable, unless there had been a particular description in some prior conveyance or writ duly recorded in the appropriate register of sasines. This requisite must be carefully attended to, but it does not seem to call for special remark; and sect. 16 of the Act of 1858 is applicable only to cases where there are several lands, for example, the lands of A. and B. This section would not be applicable to a conveyance of the lands of A. only. What had to be done, in cases where there was already a particular description contained in a conveyance or writ recorded as above, was,-(1.) To give the leading name or names, or other short distinctive description of the lands; (2.) To name 121 & 22 Vict. c. 76, s. 15, and Schedule L, No. 1. 2 21 & 22 Vict. c. 76, s. 16, and Schedule L, No. 2. the county and parish, or supposed parish, in which the lands lie; and (3.) To refer to the recorded conveyance or writ containing the particular description. From what I have already stated, you will have seen that a conveyance without these statutory specifications is good and valid as a conveyance, and that, even if perfectly general, it will be a good conveyance, and will enable the disponee to obtain a title. The change introduced or sanctioned by the Statute of 1858 was to the effect that conveyances, with descriptions in the forms there pointed out, should be good, not merely as conveyances, enabling the disponee to obtain a title, but as actually conferring the title, and sufficient when recorded to complete the title as a real right; and that of themselves, and without the collateral or explanatory supplement. The distinction is, that, whereas formerly the conveyance with the general description could be supplemented, as the warrant of a special title, by the production of writings instructing what it comprehended, the conveyance, with the abbreviated description, in the statutory form, was of itself, and without supplement, equivalent to a special title. In the former case, the deeds, with the particular descriptions, were produced and narrated along with the conveyance and general description; and their contents were thereby imported into the record; whether they were recorded writs or not. Under the Act of 1858, these, being necessarily recorded writs, were merely referred to as part of the abbreviated description. The use of sect. 15 of the Act was very critical, and must often have PROVISIONS OF been matter of difficulty in practice, at least I found it so; because it was ACT OF 1860. not easy to say what were the leading name or names,' or to find a suitable short distinctive description,' of lands, as contained in existing titles. But the clause was valuable, as affording authoritative sanction to the abbreviation of the descriptions of lands. It is now repealed by the Titles Act of 1860,1 which allows the same effect to a simple general reference to the description contained in a previously recorded deed or instrument, which was formerly allowed to such reference with the leading name or names. It is, moreover, no longer necessary to specify the parish in which the lands lie. In lands held by feudal tenure, the county must be specified. This new enactment wholly relieves the difficulty experienced under the Act of 1858, as regarded the 'leading name or names of lands.' Sect. 16 of the Act of 1858, apart from its relative schedule, to which I shall presently refer, was much more simple than sect. 15 as a practical guide. Read by itself, it is the statutory authority for a clause of union, under which separate subjects, having one general name given them, can be conveyed by such general name, just as if the lands had been united and erected into a barony. The section requires that the general name shall be given in a conveyance describing all the lands by their particular description, and declaring or pointing out the general name by which they are to be known in future. For example, the lands belonging to the Sutherland family may have 123 & 24 Vict. c. 143, s. 34. |