writings, with tions, do not dates. By the Conveyancing Act, 1874, § 40, every holograph Holograph writing of a testamentary character is, in the absence of two excepevidence to the contrary, deemed to have been executed or prove their made of the date it bears. Holograph acknowledgments of intimations of assignations also prove their own dates, Gray Rob. Ca. 1. But other holograph writings, not attested and not in re mercatoria, are not probative of their dates, Ersk. 3, 2, 22; and see Dickson on Evidence, § 770. mentary How they can for persons write. III. TESTAMENTARY WRITINGS.-A testamentary writing III. Testarelating to moveable estate could, prior to 1st October, writings. 1874, be executed for a person unable to write, by one be executed notary or the minister of the parish before two witnesses. unable to Since 1st October, 1874, a testamentary writing, relating to moveable or to heritable estate, can be executed for a person unable to write, by a notary, or a justice of the peace, or the minister of the parish, before two witnesses, Conveyancing Act, 1874, § 41. a tion of wills made out of or Kingdom by in the United British subject. By 24 and 25 Vict. c. 114, a testamentary writing of Authenticapersonal estate, made out of the United Kingdom by British subject, irrespective of his domicile at the date of the writing or at the time of his death, may be executed according to the forms required-(a) by the law of the place where the same is made; or (b) by the law of the place where the maker is domiciled when the same is made; or (c) by the laws then in force in that part of Her Majesty's dominions where the maker had his domicile of origin; and a testamentary writing of personal estate, made in the United Kingdom by a British subject, wherever his domicile is then or at death, may be executed according to the forms required by the laws for the time being in force in that part of the United Kingdom where the same is made. Since 31st December, 1868, a testamentary writing affecting heritage may be validly executed in the forms allowed by 24 and 25 Vict. c. 114, with respect to testamentary deeds of personal estate, Consolida Adoption of informal writings. IV. Foreign Deeds. tion Act, 1868, § 20, Connell's Trustees, 10 Macph. 627. In a formal testament, a testator can adopt as valid improbative writings already executed by him, or he may declare that writings, although not containing the ordinary solemnities, are to be read as part of his formally-executed settlement. Such writings, if identified in the manner set forth by the testator, are valid. See Gillespie, 10 S. 174, Young's Trustees, 3 Macph. 10; Speirs, 6 R. 1359; Bell's Lectures on Conveyancing, vol. i. 84-87; and Dickson on Evidence, § 758. IV. FOREIGN DEEDS.-Among privileged writings may be included foreign deeds. With regard to such deeds there are two rules-(1) the lex rei sita governs the form of inter vivos conveyances affecting heritable estate; and (2) the lex loci actus governs the form of obligations regarding moveable estate. Deeds, not being inter vivos conveyances of heritage, executed abroad according to the solemnities of the place of execution receive effect in Scotland; and, on the other hand, deeds, deficient in the solemnities required by the lex loci actus, will not be sustained by our courts, although they contain all the essentials of authentication demanded by our law, Dickson on Evidence & 995 et seq. But if a deed, although executed abroad, embodies a Scotch contract, it does not fall under the category of a foreign deed, and it is valid whether it is made—(1) according to the forms prescribed by our own statutes, or (2) according to the forms of the country where it is executed. See Lord President Inglis in Valery, 3 R. 965; Ersk. 3, 2, 39, 40; Purvis, 23 D. 813. Conveyances inter vivos of heritage in Scotland must, to be effectual, be executed according to the requirements of our law, Ersk. 3, 2, 40. An obligation, however, to convey land in this country, if executed according to the lex loci actus, will sustain action against the granter and his heirs in our courts, Weir, 1 S. 192. As above stated, a testamentary deed, relating to moveable or heritable estate, and executed out of the United Kingdom, of a British subject, is valid, whether it is executed according to the lex domicilii, the law of the domicile of origin, or the lex loci actus. registered Companies It may be noted that any deed executed after the com- Form of executing deeds mencement of the Conveyancing (Scotland) Act, 1874, to by companies which any company registered under the Companies Acts under the (for which see p. 206) is a party, is held to be validly Acts. executed in Scotland on behalf of such company if the same is either executed in terms of the provisions of these Acts, or is sealed with the common seal of the company, and subscribed on behalf of the company by two of the ordinary directors and the secretary of the company, and such subscription on behalf of the company is equally binding and effectual whether attested by witnesses or not, Conveyancing (Scotland) Act, 1874, § 56. See as to other special statutory forms of authentication, Bell's Lectures on Conveyancing, vol. i. 97. Delivery of most deeds necessary. of granter presumed never to have or to have been returned to him. obligants when CHAPTER IV. DELIVERY AND ACCEPTANCE OF DEEDS. In addition to being validly executed, most unilateral deeds, whether onerous or gratuitous, require to be delivered to the grantee, or to some one on his behalf, during the Deed in hands lifetime of the granter. For example, bonds and bills found in the custody of the granter are presumed to have been delivered, been either not delivered at all or returned to him for a reason inconsistent with their remaining effectual, Stair, 1,7, 14; Dickson on Evidence, § 932. One of several co-obligants to a bond can resile from it at any time before it is delivered to the grantee or to some one on his behalf, M'Gill, M. 16,991; Cheyn, 2 B. Sup. 242; see M'Alister, 1 R. 166, 958. In the case of the Life Association of Scotland, 13 R. 910, a bond was signed by one of several persons who were to be co-obligants under it. He died before all the other co-obligants signed the bond, and after his death, the bond, in a complete state, was delivered. The Court held that the implied mandate by the coobligant, who had died, to deliver the deed in exchange for the money from the lenders fell by his death, and that, de facto, it was an undelivered deed at the date of his death. Possession of deed by agent. Possession of a deed by the granter's agent is not delivery ; (1.) granter's but a deed in the hands of the grantee or the grantee's agent infers a presumption of delivery, which, however, may be overcome by contrary evidence, M'Aslan, 21 D. 511; Martini & Co., 6 R. 343. If a deed is in the possession of the agent for both granter and grantee, it seems to be a question of (2.) grantee or grantee's agent. (3.) common agent. intention, to be proved as matter of fact, whether there is party. deed taken in A person may take a deed in name of a third party. Undelivered If such deed is not delivered, he may cancel it, or get a name of a third new deed in which he himself or another is named as person. grantee; and, if the deed in name of the third party remains under the control of the person who obtained it, the right of the grantee under it corresponds to a right in his favour under a mortis causâ deed. The deed may be revoked specially or, it may be, by implication; but if not so revoked, the grantee, on the death of the party who secured the deed, will be entitled to it, Hill, M. 11,580; Balvaird, Dec. 5, 1816, F.C.; Walker's Executor, 5 R. 965. Το this rule, however, there is this exception, that if a deed is taken by a person in name of his creditor, it is effectual to the creditor without delivery, Nimmo, M. 7740, and other authors cited in Dickson on Evidence, § 956. These are equivalents to delivery : Equivalents 1 |