REI INTER- money in meliorations, though made by the tenant in the bond fide belief that he was entitled to hold for nineteen years, and with the landlord's knowledge, will not authorise any claim upon the landlord.1 On the principle of rei interventus, a verbal promise by a father to pay a tocher with his daughter, followed by the daughter's marriage, was held relevant and admitted to proof. A verbal promise by a superior, to one about to buy lands, to grant him an entry gratis, was found binding after the intended purchase of the lands was completed. The verbal agreement for a nineteen years' lease was also made binding by the payment of a grassum, and considerable expenditure in improvements. Even verbal agreements for the sale of lands have been admitted to proof, and sustained in consequence of rei interventus, the acts upon which that plea was founded being various.5 3 The same principle was recently applied as to a feu-right, verbally granted, in virtue of which the feuar had taken possession, built houses, and paid feu-duty. There was no question as to the extent of the subject, or the rate or amount of feu-duty; and the Court held the feuar entitled to a feu-right of the most simple description, and specially not containing certain clauses desired by the superior for regulating the uses of the ground, and erections thereon. And on the same plea, effect was given to a verbal agreement between two of three co-heiresses, fixing the proportion to be paid to one of them of the price of the joint property, after purchase thereof by the other. But, though a lease for a term of years, or a sale or feu-right of lands may be constituted by verbal agreement, followed by rei interventus, and though the acts establishing the plea of rei interventus, can be proved prout de jure, the verbal agreement itself can be proved only by writing, or oath of party. 8 a Questions of difficulty, and occasioning a great deal of trouble, often arise under irregular missives of lease made binding rei interventu; and it will in general be found a great advantage, both to landlord and tenant, not to delay the preparation of the actual lease till the bargain is completed, but to have the full draft or form of the deed prepared before missives are exchanged. The missives will then refer to this full draft, which should be signed as a relative document; and the two papers together will contain the entire terms and conditions of the lease, to the exclusion of all cavil or question afterwards. I prefer a full draft to mere conditions, because the draft gives the ipsissima verba of the deed which the parties are to sign. 1 Thomson v. Fowler, 8 Feb. 1859, 21 D. 453. 2 Nicholson v. M'Alister, 11 June 1829, 7 Sh. 743. 3 Gordon v. Pitsligo, Dec. 1674, M. 8415. 4 Macrorie's case. 6 Earl of Kinghorn v. Hay, 23 July 1674, M. 8414; Thomson v. Thomson, 5 Dec. 1699, M. 8426. 6 Smith v. Marshall, 8 June 1860, 22 D. 1158. 7 Moodie v. Moodie, 21 June 1745, M. 8439. 8 Gowans' Trustees v. Carstairs, 18 July 1862, 24 D. 1382; Walker v. Flint, 20 Feb. 1863, 1 Macph. 417. a See also Allans v. Gilchrist, 10 March 1875, 2 R. 587, and review of the authori ties in the opinion of Lord Deas. TITLE VIII. THE STAMP LAWS.a THE Stamp Laws, in their relation to Conveyancing, form the subject of this lecture. It is not intended to go into any history of the Stamp Acts, or statement in detail of the particular duties they impose. It is proposed only to point out the general object and scope of the Acts, the principles on which the duties in general are assessed, and the leading rules applicable to cases in which the provisions of the Acts have not from the first been duly observed. It is necessary to keep in view, as bearing on the whole subject, that the Stamp Acts are Revenue Laws, having for their object to raise a tax for the use of the State, but nowise to create new solemnities in connection with the execution of deeds. This object is accomplished by appointing that the paper or other material, on which the deeds or writings liable in duty are written, shall be impressed with a die or stamp, or, in certain cases, shall have an adhesive stamp or label affixed, denoting the amount of the duty. For enforcing the observance of this appointment, it is provided that no instrument executed in any part of the United Kingdom, or relating, wheresoever executed, to property situate, or to any matter or thing done or to be done, in any part of the United Kingdom, shall, except in criminal proceedings, be pleaded or given in ' evidence, or admitted to be good, useful, or available in law or equity, ' unless it is duly stamped in accordance with the law in force at the time ' when it was first executed.'1 It is further provided that the stamp shall be on the face of the instrument, and that every instrument on the same piece of paper shall be separately stamped.2 But every sheet of paper of which the instrument consists does not require to be stamped. The duties are placed under the charge of the Commissioners of the a When the lecture on the Stamp Laws, as contained in the first edition of this work, was written and published, the leading Stamp Act in operation was that of 1815 (55 Geo. III. cap. 184). The Act of 1870 (33 and 34 Vict. cap. 97) is now the leading Act. and the changes in the law thereby introduced are so numerous and important that it has been thought desirable to make some alterations in the text of this lecture. The arrangement of the lecture has been followed, and the old matter retained as far as possible; but it would not have been satisfactory, even if it were practicable, in dealing with this subject, to refer to the present leading Act by way of notes on the original lecture, according to the plan adopted in the rest of the work. GENERAL RULE. ADJUDICATION STAMP ACTS. DUTIES. Inland Revenue, by whose orders the proper dies or stamps are impressed, and adhesive stamps or labels are issued. As a general rule, no deed or instrument is liable in stamp duty unless it is fairly embraced within the provisions of the Stamp Acts. It will be found, on examination, that not many of those writings with which we are conversant in Scotland are now free from the operation of the Acts; but it is not a little satisfactory to observe that the more burdensome duties are, in most cases, imposed more uniformly than formerly in the ratio of the amount or value of the subject-matter of the deed; and also that, in various departments, the amount of the duties appears to have reached its maximum, and to be now in the way of diminution. Another material and comparatively recent amendment in the provisions of the Stamp Acts, consists in the opportunity now given to ascertain beyond all doubt whether a deed is duly stamped, or is not liable to stamp-duty, and to be relieved of all risk of question on such points. The Acts, generally, have been framed without sufficient regard to Scotch law terms; and, partly from that cause, difficulties arise from time to time as to the proper stamp-duty payable on a particular deed. Until the year 1850, Scotch practitioners were at great disadvantage on such occasions, as the authorities at the stamp-office said truly they had no power to settle doubts; and, at the same time, parties, however willing to observe the law, were liable to all the consequences of breaking it, if they should happen to misconstrue the Acts. That difficulty was removed by the Acts 13 and 14 Vict. cap. 97, sects. 14, 15; and 16 and 17 Vict. cap. 59, sect. 13; and by the Stamp Act of 18701 the Commissioners may be required to assess the stamp, or to declare that no duty is exigible. Their opinion, if acquiesced in, is conclusive; if it is objected to, an appeal to the Court of Exchequer is competent.2 The first Stamp Act in England was that of 5 and 6 William and Mary, cap. 21; the first embracing Scotland in its application, 8 Anne, cap. 9,3 which imposed duties in Scotland on the somewhat dissimilar articles of indentures of apprenticeship and candles. That Act was followed by one of more extensive application, 10 Anne, cap. 19, the provisions regarding stamps beginning with sect. 100. The leading Act now in operation is that of 1870, before referred to. Most of the former Acts are repealed by the Inland Revenue Repeal Act, 1870, the schedule annexed to which contains a list of Acts thereby in whole or in part repealed, certain sections not repealed being specified in an appendix.5 The duties are of several classes, the principal of which are(1.) Those assessed ad valorem, that is in scales, graduated with reference to the amount or value of the consideration paid for what is 4 33 & 34 Vict. cap. 99. 1 33 & 34 Vict. cap. 97, sect. 18. 2 The Court of Session is constituted the Court of Exchequer in Scotland; 19 & 20 Vict. cap. 56, sect. 1. 38 Anne, cap. 9, see sect. 32 et seq. 5 A list of the Stamp Acts in force in Great Britain in April 1880 will be found in Griffith's Digest of the Stamp Duties (Vacher & Sons, London), 8th ed. p. 312. contained in the deed; or the amount or value of the obligation thereby granted, or of the estate or fund thereby affected. (2.) The duty known as the ordinary deed-stamp of ten shillings, which is very familiar to us. (3.) We have a class which may be called denominational duties, as being applicable to all deeds or instruments of certain particular names or classes. (4.) Uniform duties, one penny, applicable to drafts or orders for money payable on demand, and receipts for money paid; with the great convenience of the stamp being attachable by means of an adhesive label. Some particulars connected either with the operation of the Acts generally, or with the duties of the above classes respectively, will now be noticed. Deeds, especially as regards the duties assessed ad valorem, are liable, not according to their technical characteristics in a conveyancing point of view, but according to the real nature of the transaction, or of the several transactions, which they record, or of which they are the legal evidence. A deed, which we describe correctly by one technical name, is thus frequently chargeable with the same duty as that affecting a deed bearing a different name. Some deeds which, in strictly correct conveyancing, are described by one and the same name, and which contain obligations of the same character, are chargeable differently according to the origin of the transaction which they embody; and some which embrace several distinct obligations, or several purposes not necessarily connected with each other, will be found chargeable under several separate heads, not with double duties, but with duties of two or more denominations.2 A few cases may be pointed out in which the rule or principle here CONVEYANCE stated operates. Thus, the general title 'conveyance on sale' includes ON SALE. not merely deeds which in technical language are called 'conveyances,' but every instrument and every decree or order of any court, or of any commissioners, whereby any property upon the sale thereof is legally or equitably transferred to, or vested in, the purchaser, or any other person ' on his behalf, or by his direction.' This would apply to all grants, dispositions, leases, transfers, and renunciations upon the sale of any lands or other property, real or personal, or of any right or interest therein. The great test of liability to the 'conveyance' duty is that the transaction, in respect of which the deed is executed, is of the nature of a sale of property real or personal, or of some right or interest therein. 3 DUTIES. The ad valorem duties on conveyances were for some time largely Ad valorem evaded, by the omission to specify in the deed the amount of the price or consideration given for the same. To prevent evasion, the Act 48 George III. cap. 149, which came into operation from and after 10th October 1808, appointed the full price or consideration to be stated, with 144 Vict. c. 12, sect. 47. 233 & 34 Vict. cap. 97, sect. 8. 3 Section 70. Ad valorem ANNUITIES. this provision, that so much of the true consideration as should not be expressed should be recoverable by the purchaser from the seller, with double costs of suit; and, if the under statement should affect the amount of the ad valorem duty, the agent knowingly setting forth a false consideration was liable to forfeit £500, to be disabled from practising, and, if he held a public office or employment, to forfeit and be incapable of holding the same.1 By the Stamp Act of 1870, sect. 10, the provision is that all the facts and circumstances affecting the liability of any instrument to ad valorem duty, or the amount of it, shall be fully and truly set forth. If not, there is imposed on the person who executes, and on the person concerned in the preparation of the instrument, a penalty of £10. A bond of annuity granted without the payment of any price, and not redeemable, is liable in the ad valorem duty on bonds of annuity, according to the amount of the annuity payable. But, if the bond is granted on the sale of an irredeemable annuity, it is liable in the ad valorem 'conveyance' duty corresponding to the price paid for the annuity. If, on the other hand, the bond of annuity is redeemable, it will be considered, so far as regards the stamp-duty, as on the same footing with a bond or mortgage for payment of a capital sum equal to the amount of the redemption money. Again, the ad valorem duty on a deed of sale. REAL BURDEN. of property is not affected by the circumstance of part of the price or consideration money being not actually paid, but created or allowed to remain a debt of the purchaser, or affecting the subjects sold. The price undertaken to be paid fixes the amount of the ad valorem duty in such case; and accordingly the amount of any debt, under burden of which the property is conveyed, is to be computed as part of the price. This rule holds although the purchaser undertakes no personal liability for payment, in the same way as if the amount of the debt had been actually paid to the seller; and, moreover, if the debt is made a real burden on the property, the deed then becomes, besides a conveyance, equivalent to a mortgage, and the duty applicable to a mortgage for the amount of the debt so made a real burden is payable, in addition to the full 'conveyance' duty. 3 But, if there be only one transaction, there may be several obligations in one deed, or even, in certain cases, several separate documents, and only a single ad valorem stamp-duty. Thus, when a loan is contracted on the security of a personal bond by a husband, and a disposition by his wife of her property in security thereof, in the same deed, there is only one transaction, and the stamp-duty is the same as that applicable to an ordinary bond and disposition in security. Again, when the real transaction is that of a simple loan, obligations contained in the bond 1 See 48 Geo. II. cap. 149, ss. 22, 23, Revenue v. Liquidators of City of Glasgow Bank, 15 Jan. 1881, 8 R. 389. 4 Brown v. Bedwell, 3 Dec. 1830, 9 Sh. 136. |