Titles to Land Consolidation (Scotland) Act 1868

This Act may be cited for all purposes as “The Titles to Land Consolidation (Scotland) Act 1868.”

This Act shall take effect from and after the thirty-first day of December one thousand eight hundred and sixty-eight, unless in so far as it is herein appointed to take effect at an earlier date.

The following words and expressions in this Act, and in the schedules annexed to this Act, shall have the several meanings hereby assigned to them, unless there be something in the subject or context repugnant to such construction; that is to say,

• F112The words “grantor”, “grantee,” “disponer,” “disponee,” “legatee,” “adjudger,” and “purchaser” shall extend to and include the heirs, successors, and representatives of F112such grantor, grantee, disponer, disponee, legatee, adjudger, or purchaser respectively; and the word “successors” shall extend to and include heirs, disponees, assignees legal as well as voluntary, executors, and representatives:

• F1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• The words “Sheriff of Chancery” shall extend to and include the Sheriff of Chancery and his substitute under this Act, or under the Act of the tenth and eleventh Victoria, chapter forty-seven; and the word “Sheriff” shall extend to and include F2the Sheriff Principal F3... of any sheriffdom F3... and the Sheriff and the Sheriff of Chancery and his substitute:

• The words “Sheriff Clerk of Chancery” shall extend to and include the Sheriff Clerk of Chancery acting under this Act, or who acted under the M1Act of the tenth and eleventh Victoria, chapter forty-seven, and the depute of such Sheriff Clerk; and the words “Sheriff Clerk” shall extend to and include the Sheriff Clerk of Chancery and F4the Sheriff Clerk F3... of the sheriff court district concernedF3... and their respective deputes:

• F113... the word “Prince” shall extend to and include the Prince and Steward of Scotland and his successors:

• F113...

• The word “deed” and the word “conveyance” shall each extend to and include all F113... writs, dispositions, F113... whether inter vivos or mortis causa, and whether absolute or in trust, F113... heritable securities, reversions, assignations, instruments, decrees of constitution relating to land to be afterwards adjudged, decrees of adjudication for debt, and of adjudication in implement, and of constitution and adjudication combined, whether for debt or implement, decrees of declarator and adjudication, decrees of sale, and decrees of general and of special service F113... and the summonses, petitions, or warrants on which any such decrees proceed, warrants to judicial factors, trustees, or beneficiaries of a lapsed trust, to make up titles to lands, and the petitions on which such warrants proceed, writs of acknowledgment, contracts of excambion, deeds of entail F113... and all deeds, decrees, and writings by which lands, or rights in lands, are constituted or completed or conveyed, or discharged, whether dated, granted, or obtained before or after the passing of this Act, and official extracts of all deeds and conveyances; and all codicils, deeds of nomination, and other writings annexed to or endorsed on deeds or conveyances or bearing reference to deeds or conveyances separately granted, and decrees of declarator naming or appointing persons to exercise or enjoy the rights or powers conferred by such deeds or conveyances, shall be deemed and taken for the purposes of this Act to be parts of the deeds or conveyances to which they severally relate, and shall have the same effect in all respects as to the persons so named and appointed as if they had been named and appointed in the deeds or conveyances themselves:

• F113...

• The word “instrument” shall extend to and include all notarial instruments F113... and also all instruments of sasine, instruments of resignation ad remanentiam, instruments of resignation and sasine, and instruments of cognition and sasine, and instruments of cognition:

• The words “heritable security” and “security” shall each extend to and include all heritable bonds, bonds and dispositions in security, bonds of annual rent, bonds of annuity, and all securities authorized to be granted by the seventh section of the M2Debts Securities (Scotland) Act 1856, and all deeds and conveyances whatsoever, legal as well as voluntary, which are or may be used for the purpose of constituting or completing or transmitting a security over lands or over the rents and profits thereof, as well as such lands themselves and the rents and profits thereof, and the sums, principal, interest, and penalties secured by such securities, but shall not include securities by way of ground annual, whether redeemable or irredeemable, or absolute dispositions qualified by back bonds or letters:

• The word “creditor” shall extend to and include the party in whose favour an heritable security is granted, and his successors in right thereof:

• The word “debtor” shall include the debtor and his successors:

• The word “lands” shall extend to and include all heritable subjects, securities, and rights:

• The words “notary public” shall be held to mean a notary public duly admitted to practise in Scotland:

• The word “petitioner” shall extend to and include any person who may have presented or may present a petition within the meaning of this Act, or of any Act hereby repealed:

• The words “judicial factor” shall extend to and include judicial factors F5... to persons under incapacity, F6 ..., factors loco absentis, and all judicial managers:

• F113...

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F7... the clause of assignation of writs and evidents in F118form No. 1 of schedule (B.) hereto annexed shall, unless specially qualified, be held to import an absolute and unconditional assignation to such writs and evidents F119... therein contained, and to all unrecorded conveyances to which the disponer has right; and the clause of assignation of F118rents shall, unless specially qualified, be held to import an assignation to the rents to become due for the possession following the term of entry, according to the legal and not the conventional terms, unless in the case of forehand rents, in which case it shall be held to import an assignation to the rents payable at the conventional terms subsequent to the date of entry; and the clause of F118warrandice shall, unless specially qualified, be held to imply absolute warrandice as regards the lands and writs and evidents, and warrandice from fact and deed as regards the rents; and the clause of obligation to free and relieve from F118public burdens shall, unless specially qualified, be held to import an obligation to relieve of all F118public and local burdens due from or on account of the lands conveyed prior to the date of entry F119... and the clause of consent to registration F118shall, unless specially qualified, have the meaning and effect assigned in the one hundred and thirty-eighth section of this Act.

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Immediately before the testing clause of any conveyance of lands, it shall be competent to insert a clause of direction, in or as nearly as may be in the form No. 1 of schedule (F.) hereto annexed, specifying the part or parts of the conveyance which the grantor thereof desires to be recorded in the register of sasines; and when such clause is so inserted in any conveyance, whether dated before or after the commencement of this Act, and F123... is presented to the keeper of the appropriate register of sasines for registration, F122the keeper may record such part or parts only, together with the clause of direction and the testing clause F123...: Provided that, notwithstanding such clause of direction, it shall be competent for the person entitled to present the conveyance for registration to record the whole conveyance, F123....

Where several lands are comprehended in one conveyance in favour of the same person or persons, it shall be competent to insert a clause in the conveyance, declaring that the whole lands conveyed and 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, whether dated before or after the commencement of this Act, or on an instrument following thereon, whether dated before or after the commencement of this Act, and containing such particular description and clause, being duly recorded in the appropriate register of sasines, it shall be competent in all subsequent conveyances and deeds and discharges, of or relating to such several lands, 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; and such subsequent conveyances and deeds and discharges of or relating to such several lands under the general name so specified shall be as effectual in all respects as if the same contained a particular description of each of such several lands, exactly as the same is set forth in such recorded conveyance or instrument: Provided always, that reference be made in such subsequent conveyances and deeds and discharges to a prior conveyance or instrument recorded as aforesaid, in which such particular description and clause are contained: Provided also, that it shall not be necessary in such clause to comprehend under one general name the whole lands contained in the conveyance in which such clause is inserted, but that it shall be competent to comprehend certain lands under one general name and certain other lands under another general name, it being clearly specified what lands are comprehended under each general name; and such reference shall be in or as nearly as may be in the terms set forth in schedule (G.) hereunto annexed.

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From and after the commencement of this Act it shall be competent to any owner of lands to settle the succession to the same in the event of his death, not only by conveyances de praesenti, according to the existing law and practice, but likewise by testamentary or mortis causa deeds or writings, and no testamentary or mortis causa deed or writing purporting to convey or bequeath lands which shall have been granted by any person alive at the commencement of this Act, or which shall be granted by any person after the commencement of this Act, shall be held to be invalid as a settlement of the lands to which such deed or writing applies on the ground that the grantor has not used with reference to such lands the word “dispone,” or other word or words importing a conveyance de praesenti; and where such deed or writing shall not be expressed in the terms required by the existing law or practice for the conveyance of lands, but shall contain with reference to such lands any word or words which would, if used in a will or testament with reference to moveables, be sufficient to confer upon the executor of the grantor, or upon the grantee or legatee of such moveables, a right to claim and receive the same, such deed or writing, if duly executed in the manner required or permitted in the case of any testamentary writing by the law of Scotland, shall be deemed and taken to be F10valid as a settlement on a grantee or legatee of the lands to which it applies; and the executor of the grantor may complete title to such lands by expeding and recording a notarial instrument as aforesaid: Provided always, that nothing herein contained shall be held to confer any right to such lands on the successors of any such grantee or legatee who shall predecease the grantor, unless the deed or writing shall be so expressed as to give them such right in the event of the predecease of such grantee or legatee.

Where such testamentary or mortis causa deed or writing shall be conceived in favour of a grantee as trustee or executor of the grantor, and shall not be expressed to be wholly in favour of such trustee or executor for his own benefit, such trustee or executor shall apply such whole lands for the purposes specified in such deed or writing; and where such purposes cannot, in whole or in part, be carried into effect, or where no purposes with reference to such lands have been or shall be specified in such deed or writing, such trustee or executor shall convey such lands, or so much thereof, or shall apply so much of the proceeds thereof, if such lands shall have been sold and realized by him, as may not be required for the purposes of such deed or writing, to or for behoof of the person or the successors of the person who, but for the passing of this Act and the granting of such deed or writing, would have been entitled to succeed to such lands on the death of such grantor.

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Where in a petition to the Court of Session for the appointment of a judicial factor authority has been or shall be asked for the completion of a title by such factor to any lands forming the whole or part of the estate to be managed by such judicial factor, or where a judicial factor has applied or shall apply, by petition or note to the said Court, for authority to complete a title to such lands, either in his own person as judicial factor, or in the person of any F13person under legal disability by reason of nonage, or F14person suffering from mental disorder within the meaning of the Mental Health (Scotland) Act 1960 to whom he may have been appointed judicial factor, and where any petition or note has specified and described or shall specify and describe the lands to which such title is to be completed, or has referred or shall refer to the description of the same, in the form, or as nearly as may be in the form F15... of schedule (G.) hereto annexed, as the case may be, the warrant granted for completing such title shall also so specify and describe the lands to which such title is to be completed, or shall so refer to the description thereof; and such warrant shall be held to be a conveyance in due and common form of the lands therein specified in favour of such judicial factor granted by the person, whether in life or deceased, whose estate is under judicial management, or where the estate is that of a F13person under legal disability by reason of nonage, or F14person suffering from mental disorder within the meaning of the M3Mental Health (Scotland) Act 1960 in whose person a title has not been made up, such warrant shall be held to be such a conveyance in favour of the F13person under legal disability by reason of nonage, or F14person suffering from mental disorder within the meaning of the Mental Health (Scotland) Act 1960 or of the judicial factor appointed to such F13person under legal disability by reason of nonage, or F14person suffering from mental disorder within the meaning of the M4Mental Health (Scotland) Act 1960 as the case may be, granted by a predecessor or author having such title, or where such judicial factor has been or shall be appointed on an estate which shall have been vested in a trustee or former judicial factor, such warrant shall be held to be such a conveyance granted by such trustee or former factor, whether in life or deceased, for the purposes of such estate or trust, or factory F15... and such warrant may F130... be recorded in the appropriate register of sasines as a conveyance in favour of such judicial factor, or F13person under legal disability by reason of nonage, or F14person suffering from F16mental or other incapacity or of the factor on his estate, and being so recorded shall have the same force and effect as if at the date of such recording such conveyance had been granted to the judicial factor, or F13person under legal disability by reason of nonage, or F14person suffering from mental disorder within the meaning of the Mental Health (Scotland) Act 1960 or the judicial factor appointed to such F13person under legal disability by reason of nonage, or F14person suffering from mental disorder within the meaning of the Mental Health (Scotland) Act 1960 as the case may be, and recorded in the appropriate register of sasines: Provided always, that for enabling the person in whom such lands were last vested, or his representatives, or other parties interested, to bring forward competent objections against such warrant being granted, or claims upon the estate, the Court shall order such intimation and service of the petition or note as to them shall seem proper: Declaring always, that the whole enactments and provisions herein contained shall extend and apply to all petitions to and warrants by the Court of Session under F17the M5Trusts (Scotland) Act 1921 unless in so far as such provisions and enactments may be inapplicable to the form or objects of such petitions or warrants.

The liquidator in the winding up of a company shall, for the purposes of sections 3 (disposition etc. by person with unrecorded title) and 4 (completion of title) of the Conveyancing (Scotland) Act 1924 (c.27) (including those sections as applied to registered leases by section 24 of that Act), be taken to be a person having right to any land belonging to the company.

Wherever lands have been or may hereafter be acquired by any congregation, society, or body of men associated for religious purposes, or for the promotion of education, including the general assemblies, synods, and presbyteries of the Established Church of Scotland, and of all other Presbyterian churches in Scotland, as a chapel, meeting house, or other place of worship, or as a manse or dwelling house for the minister of such congregation or society or body of men, or offices, garden, or glebe for his use, or as a schoolhouse or schoolmaster’s house, garden, or playground, or as a college, academy, or seminary, or as a hall or rooms for meeting for the transaction of business, or as part of the property belonging to such congregation, society, or body of men, and wherever the conveyance or lease of such lands has been or may be taken in favour of the moderator, minister, kirk session, vestrymen, deacons, managers, or other office bearers or office bearer of such congregation or society or body of men, or any of them, or of trustees appointed or to be from time to time appointed, or of any party or parties named in such conveyance or lease in trust for behoof of the congregation or society or body of men, or of the individuals comprising the same, such conveyance, when recorded F131... in terms of this Act, or such lease, shall not only vest the party or parties named therein in the lands, thereby F131... conveyed, or leased, but shall also, after the death or resignation or removal from office of such party or parties, or any of them, effectually vest their successors in office for the time being chosen and appointed in the manner provided or referred to in such conveyance or lease, or if no mode of appointment be therein set forth or prescribed, then in terms of the rules or regulations of such congregation or society or body of men, in such lands, subject to such and the like trusts and with and under the same powers and provisions as are contained or referred to in the conveyance or lease given and granted to the parties disponees or lessees therein, and that without any transmission or renewal of the investiture whatsoever, anything in such conveyance or lease contained to the contrary notwithstanding: And the provisions of this section shall apply also to all trusts for the maintenance, support, or endowment of ministers of religion, missionaries, or schoolmasters, or for the maintenance of the fabric of churches, chapels, meeting houses, or other places of worship, or of manses or dwelling houses or offices for ministers of the gospel, or of schoolhouses or schoolmasters houses, or other like buildings.

A reference in any enactment or deed to a decree of service of heir (however expressed) shall include a reference to a declarator granted under section 26A or 26B of this Act.

It shall be competent to the F132... Court of Session and they are hereby authorized and required from time to time to pass such acts of sederunt as shall be necessary or proper for regulating in all respects the proceedings under this Act before the Sheriff of Chancery F132....

“Whereas it is inconvenient in practice to libel and conclude for general adjudication of lands as the alternative only of special adjudication, in terms of an Act of the Parliament of Scotland passed in the year one thousand six hundred and seventy-two:” It shall not be necessary to libel or conclude for special adjudication, and it shall be lawful to libel and conclude and decern for general adjudication without such alternative, anything in the said last-recited Act of the Parliament of Scotland, or in any other Act or Acts of the Parliament of Scotland or of Great Britain or of the United Kingdom of Great Britain and Ireland, to the contrary notwithstanding.

In all cases a decree of adjudication, whether for debt or in implement, or a decree of constitution and adjudication, whether for debt or in implement, if duly obtained in the form prescribed by this Act, or obtained, if prior to the commencement of this Act, in the form then in use, or a decree of declarator and adjudication, or a decree of sale, shall, except in the case where the subjects contained in the decree of adjudication, or of constitution and adjudication, or of declarator and adjudication, are heritable securities, be held equivalent to and shall have the legal operation and effect of a conveyance in ordinary form of the lands therein contained granted in favour of the adjudger or purchaser by the ancestor of such apparent heir, or by the owner or proprietor in trust or otherwise, and whether in life or deceased, of the lands adjudged, or by the seller of the lands sold, although F27under legal disability by reason of nonage or F28mental or other incapacity . . . F29 and it shall be lawful and competent to such adjudger or purchaser to complete F133title by recording the decree as a conveyance or by using the decree as a midcouple or link of title.

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In the succession of the creditor in a heritable security, the security shall be moveable estate; except that in relation to the legal rights of the spouse, or of the descendants, of the deceased it shall be heritable estate.

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Heritable securities F136... may be registered in the appropriate register of sasines at any time during the lifetime of the grantee, and shall in competition be preferred according to the date of the registration thereof F136....

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In all cases of adjudication, whether for debt or in implement, or of constitution and adjudication whether for debt or in implement, in which the adjudger has obtained a decree of adjudication or of constitution and adjudication in the manner and to the effect provided by this Act, or in cases of declarator and adjudication, where the subjects contained in any such decree are heritable securities, it shall be competent for the adjudger to complete his title to such securities by recording either the abbreviate of adjudication or an extract of such decree in the appropriate register of sasines, in either of which cases he shall be in the same position as if an assignation of such heritable securities had been granted in his favour by the ancestor or person or creditor in trust or otherwise, and whether in life or deceased, whose estate is adjudged, and as if such assignation had been duly recorded in the appropriate register of sasines at the date of so recording such abbreviate or such extract decree.

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The short clauses of consent to registration for preservation, and for preservation and execution, contained in F137form No. 1 of schedule (B.) hereto annexed, when occurring in any deed or conveyance under this Act, or in any deed or writing or document of whatsoever nature, and whether relating to lands or not, shall unless specially qualified import a consent to registration and a procuratory of registration in the books of council and session, or other judges books competent, therein to remain for preservation; and also, if for execution, that F41, upon the issue of an extract containing a warrant for execution, all lawful execution shall pass thereon.

In all cases where writs or deeds of any description are by this or any other Act permitted or directed to be engrossed on any conveyance or deed, it shall be competent, when necessary, to engross such deeds or writs on a sheet or sheets of paper, or of whatever other material the conveyance itself consists, added to such conveyance, provided that the engrossing of the deed or writ shall be commenced on some part of the conveyance or deed itself on which it is permitted or directed to be engrossed; and the first of such additional sheets shall be chargeable with the stamp duty applicable to the writ or deed partly engrossed thereon F138....

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All conveyances and deeds F140... authorized to be recorded in the register of sasines, may F140... be recorded at any time in the life of the person on whose behalf the F143application for registration of such conveyance or deed is made and on such application the conveyance or deed shall be presented for registration F141and when presented for registration shall be forthwith shortly registered in the minute books of the said register in common form, and shall with all due despatch be fully registered in the register books, and thereafter redelivered to the parties with certificates of due registration thereon, which shall specify the date of presentation, and the book and folios in which the engrossment has been made F43... and shall be probative of such registration, and when so registered shall in competition be preferable according to the date of registration, and the date of entry in the minute book shall be held to be the date of registration: Provided, that where two or more F144applications for registration of deeds or conveyances F44... shall be received by the keeper of the register of sasines F45on the same day, the entries F145... in the presentment book and minute book F146for the conveyances or deeds in respect of which such applications are made shall be of the same year, month, F45and day, and such deeds and conveyances shall be deemed and taken to be presented and registered contemporaneously; F46...

Where there is an error or defect in recording a deed or conveyance in the Register of Sasines it shall be competent to record it anew.

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F47. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F48. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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F49. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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F50. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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No inhibition to be recorded from and after the thirty-first day of December one thousand eight hundred and sixty-eight shall have any force or effect as against any lands to be acquired by the person or persons against whom such inhibition is used after the date of recording such inhibition, or of recording the previous notice thereof prescribed by this Act, as the case may be: Provided always, that where such inhibition is used against a person or persons who shall thereafter succeed to any lands which, at the date of recording the inhibition or previous notice thereof, as the case may be, were destined to such person or persons by a deed of entail, or by a similar indefeasible title, then and in that case such inhibition shall affect the said person or persons in so far as regards the lands so destined, and to which he or they shall succeed as aforesaid, but no further.

F51. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F52. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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