Titles to Land Consolidation (Scotland) Act 1868

[F1 119 Explanation of clauses in Schedule (FF.) No. 1. U.K.

The import of the clauses of the form of No. 1 of the said schedule (FF.) occurring in any bond and disposition in security, whether granted before or after the commencement of this Act, shall be as follows, videlicet, the clause obliging the grantor to pay the amount due under the bond, principal, interest, and penalty to the creditor, his heirs, executors, or assignees, shall, unless where executors are excluded, be held to import an obligation to pay the same to the creditor and his representatives in mobilibus and his assignees, and where there is or shall be such exclusion, to the creditor and his heirs and assignees, the clause disponing the lands to such creditor and his foresaids heritably shall, unless where executors are excluded, be held to import a disposition of such lands to such creditor and his representatives in mobilibus and his assignees, and where there is or shall be such exclusion to such creditor and his heirs and assignees in security, in manner specified in the bond and disposition in security, with all the rights and powers at present competent to a creditor and his heirs under such a security; the clause of assignation of rents shall be held to import an assignation to the creditor and his representatives in mobilibus or his heirs, as the case may be, and to his assignees, to the rents to become due or payable from and after the date from which interest on the sum in the security commences to run, in the fuller form generally in use prior to the thirtieth day of September one thousand eight hundred and forty-seven, including therein a power to the creditor and his foresaids to insure all buildings against loss by fire, and on default in payment to enter into possession of the lands disponed in security, and uplift the rents thereof, or to uplift the rents thereof if the lands are not disponed in security, and to make all necessary repairs on the buildings, subject to accounting to the debtor for any balance of rents actually recovered beyond what is necessary for payment to such creditor and his foresaids of the sums, principal, interest, and penalty, due to him or them under such security, and of all expenses incurred by him or them in reference to such possession, including the expenses of management, insurance, and repairs; and the clause of assignation of writs shall be held to import an assignation to the creditor and his foresaids to writs and evidents to the same effect as in the fuller form generally in use in a bond and disposition in security, with power of sale, prior to the thirtieth day of September one thousand eight hundred and forty-seven; and the clause of warrandice shall be held to import absolute warrandice as regards the lands and the title-deeds thereof, and warrandice from fact and deed as regards the rents; and clause consenting to registration for preservation and execution shall have the meaning and effect assigned to such clause in the one hundred and thirty-eighth section of this Act; the clauses reserving right of redemption and obliging the grantor to pay the expenses of assigning or discharging the security, and, on default in payment, granting power of sale, shall have the same import, and shall be in all respects as valid, effectual, and operative as if it had been in such bond and disposition in security specially provided and declared that the lands and others thereby disponed should be redeemable by the grantor from the grantee, at the term and place of payment, or at any term of Whitsunday or Martinmas thereafter, upon premonition of three months, to be made by the grantor to the grantee personally, or at his dwelling place, if within Scotland, and if furth thereof at the time, then at the office of the keeper of the record of edictal citations within the General Register House, Edinburgh, in presence of a notary public and witnesses; and that by payment to him of the whole principal sum payable under the bond and disposition in security, interest due thereon, and liquidated expenses, and termly failures corresponding thereto, if incurred; and in case of his absence or refusal to receive the same, by consignation thereof in the bank specified in the security, if any bank shall be so specified, and if not, then in one or other of the banks in Scotland incorporated by Act of Parliament or Royal Charter, having an office or branch at the place of payment; to be made furthcoming on the peril of the consigner; the place of redemption to be within the office of such bank or branch thereof; and as if it had been thereby further provided and declared that any discharge and renunciation, disposition and assignation, or other deed necessary to be granted by the grantee upon the grantor making payment and redeeming as aforesaid, and also the recording thereof, should always be at the expense of the grantor; and as if it had been thereby further provided and declared, that if the grantor should fail to make payment of the sums that should be due by the personal obligation contained in the said bond and disposition in security, within three months after a demand of payment intimated to the grantor, F2 . . . although subject to any legal incapacity, personally or at his dwelling place if within Scotland, or if furth thereof at the office of the keeper of the record of edictal citations above mentioned, in presence of a notary public and witnesses, and which demand for payment may be in or as nearly as may be in the form of No. 2 of schedule (FF.) hereto annexed, and a copy thereof certified by such notary public in the form of No. 3 of schedule (FF.) hereto annexed, or where such demand has been intimated to more persons than one, a copy so certified of the demand intimated to one of such persons, with a certificate by such notary public that a similar demand has been intimated to the other persons, and stating the names and designations of such persons and the dates and places of intimation to them, shall be sufficient evidence of such demand, then and in that case it should be lawful to, and in the power of, the grantee, immediately after the expiration of the said three months, and without any other intimation or process at law, to sell and dispose, in whole or in lots, of the said lands and others, by public roup at Edinburgh or Glasgow, or at the head burgh of the county within which the said lands and others, or the chief part thereof, are situated, or at the burgh or town sending or contributing to send a member to Parliament, or at the burgh or town which may have previously adopted the M1 General Police and Improvement (Scotland) Act 1862, or part thereof, which, whether within or without the country, shall be nearest to such lands or the chief part thereof, on previous advertisement, stating the time and place of sale, and published once weekly for at least six weeks subsequent to the expiry of the said three months, in any newspaper published in Edinburgh or in Glasgow, and in every case in a newspaper published in the county in which such lands are situated, or if there by no newspaper published in such county, then in any newspaper published in the next or a neighbouring county, and a certificate by the publishers of such newspapers for the time shall be prima facie evidence of such advertisement, the grantee being always bound, upon payment of the price, to hold count and reckoning with the grantor for the same, after deduction of the principal sum secured, interest due thereon, and liquidated penalties corresponding to both which may be incurred, and all expenses attending the sale; and for that end to enter into articles of roup, to grant dispositions containing all usual and necessary clauses, and in particular a clause binding the grantor of the said bond and disposition in security, in absolute warrandice of such dispositions, and obliging him to corroborate and confirm the same, and to grant all other deeds and securities requisite and necessary by the laws of Scotland for rendering such sale or sales effectual, in the same manner and as amply in every respect as the grantor could do himself; and as if it had been thereby further provided and declared that the said proceedings should all be valid and effectual, whether the debtor in the said bond and disposition in security for the time should be [F3 subject to any legal incapacity or not], and that such sale or sales should be equally good to the purchaser or purchasers as if the grantor himself had made them, and also that in carrying such sale or sales into execution it should be lawful to the grantee to prorogate and adjourn the day of sale from time to time as he should think proper, previous advertisement of such adjourned day of sale being given in the newspapers above mentioned once weekly for at least three weeks; and as if the grantor had bound and obliged himself to ratify, approve of, and confirm any sale or sales that should be made in consequence thereof, and to grant absolute and irredeemable dispositions of the lands and others so to be sold to the purchaser, and to execute and deliver all other deeds and writings necessary for rendering their rights complete.]

Textual Amendments

F1 S. 119 was substituted by Titles to Land Consolidation (Scotland) Amendment Act 1869 (c. 116), s. 7 and repealed in so far as relating to heritable securities from which executors are excluded be Succession (Scotland) Act 1964 (c. 41), s 37, Sch. 3; amended by Conveyancing (Scotland ) Act 1924 (c. 27), s. 25; excluded by Conveyancing and Feudal Reform (Scotland) Act 1970 (c. 35), s. 32, Sch. 8 para. 8

F2 Words in s. 119 repealed (25.9.1991) by Age of Legal Capacity (Scotland) Act 1991 (c. 50, SIF 49:8), ss. 10(2), 11(2), Sch. 2 (with s. 1(3))

F3 Words in s. 119 substituted (25.9.1991) by Age of Legal Capacity (Scotland) Act 1991 (c. 50, SIF 49:8), ss. 10(1), 11(2), Sch. 1 para. 21 (with s. 1(3))

Modifications etc. (not altering text)

C1 References to office of the Keeper of the Record of Edictal Citations to be construed as references to office of such clerks and officers of the Court of Session as may be appointed from time to time: Reorganisation of Offices (Scotland) Act 1928 (c. 34), s. 8, S.R. &. O. 1929/588 (Rev. XIX, p. 785: 1929, p. 1305) and Public Records (Scotland) Act 1937 (c. 43), s. 13

Marginal Citations

M1 1862 c. 101.