Экзамен зачет учебный год 2023 / Reid, Land Registration in Scotland

Abstract

The origins of land registration in Scotland lie in a series of statutes of the sixteenth century. A later Act of 1617, still in force today, set up a national system of deeds registration. There was a choice between registration in a local register or in a central register in Edinburgh (the General Register of Sasines); and registration was constitutive of the real rights which the deeds sought to create. From the beginning the registers were open to the public. These early developments were a source of national pride. Towards the end of the seventeenth century, for example, Sir George Mackenzie commented that ‘Scotland hath above all other Nations, by a serious and long experience, obviated most happily all frauds, by their publick Registers’. By the end of the nineteenth century, however, the pioneer country seemed in danger of being left behind. Beginning in South Australia in 1858, the ‘Torrens’ system of registration of title spread throughout the Australian colonies and then to many other parts of the British Empire. And in England, too, which had no national land register until the nineteenth century, the first hesitant steps were being taken for the introduction of registration of title. In the light of these developments, a Royal Commission was appointed in Scotland in 1906 to consider a switch from registration of deeds to registration of title but its members were unable to reach agreement. It was left to a second government committee, chaired by Lord Reid and reporting in 1963, to recommend the introduction of registration of title. The clinching argument was an expected reduction in transaction costs, and hence the prospect of cheaper conveyancing. Legislation to implement the Reid Committee’s recommendations was eventually passed in 1979. This paper explores the evolution of land registration in Scotland, analyses the key legal developments, and offers an evaluation of the move from registration of deeds to registration of title.

Keywords

Land registration, law, legal history, registration of deeds, registration of title, Scotland.

Electronic copy available at: http://ssrn.com/abstract=2655598

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More ambitious provision for registration made at the end of the century was scarcely more successful. A register under the control of the Secretary of State was established by an Act of 1599,8 and all instruments of sasine, reversions, and various other deeds were enjoined to be registered there on pain of absolute nullity. The measure seems to have attracted the opposition of notaries public, perhaps because it threatened the traditional (if indifferently executed)9 practice of recording deeds in their protocol books.10 Inefficiency or even corruption on the part of local registrars may also have contributed to the failure of the ‘Secretary’s Register’, 11 as did the fact that neither the 1599 Act nor a confirming Act of 160012 was printed.13 At any rate, after a brief few years of operation, the Register was abolished by an Act of the Convention of Estates. The preamble to this Act, passed in 1609,14 was vigorous in its condemnation of an ‘unnecessair register’ which occasioned ‘neidles extraordinaire and most unnecessair trouble tormoyle fascherie and expenss’ to the lieges and whose only purpose was ‘to acquire gayne and commoditie to the clerksis keiparis thairof’. The history of land registration in the sixteenth century, therefore, was largely a history of failure.

Registration Act 1617

This, then, was the unpromising background to the Act of 1617,15 which is still in force16 and which established a register, the Register of Sasines, that has endured to the present day. Why a new register should be set up so soon after the failure of the old is unclear. In his account of the Act, Ockrent mentions only general factors, such as the need for reliable records following the upheaval in land rights produced by the Reformation of 1560,17 as well as the overall suitability of the Scottish system of transfer, with its insistence on writs, not than mere possession, for the introduction of registration.18 But if the timing is hard to explain, the policy motivations are manifest from the Act itself. Two aims predominated: publicity and the protection of acquirers.19 Conversely, the need to make land available for secured lending,

8APS iv 184. This was an Act of the Convention of the Estates of July 1599, later converted into an Act of Parliament in November 1600 (APS iv 237 c 36, RPS 1600/11/49).

9For the many deficiencies in notarial practice, see Ockrent (n 6) 56-65. Erskine II.3.39 thought that the protocol books were of little assistance, partly because they were not lodged in any public office until an Act of 1587 and partly because ‘notaries at this day, even when they keep protocols, seldom insert in them any instruments which are not thought of more than ordinary importance’.

10For the failure of the Act, see Ockrent (n 6) 69-72.

11This despite the firm injunction in the Act of 1600 that the ‘deputtis’ be ‘of gude fame, literature and conversatioun’, a formula that (see below) was to be repeated in the Registration Act 1617.

12RPS 1600/11/49.

13Ross (n 2) 205: ‘These acts were not printed, and consequently little attended to’.

14APS iv 407.

15APS iv 545 c 16, RPS 1617/5/30. For commentary on the 1617 Act, see Sir George Mackenzie, Observations on the Acts of Parliament (1687) 352-4; Lord Kames, Elucidations respecting the Common and Statute Law of Scotland (2nd edn, 1800) 291-7.

16Though naturally it has been amended from time to time.

17In this respect the Registration Act 1617 is closely linked with the Prescription Act of the same year (APS iv

543c 12, RPS 1617/5/26).

18Ockrent (n 6) 45-53.

19Bell, Principles § 772: ‘The laws establishing the record of sasines had two objects in view:- the first was to guard against forgery, by making conveyances known; the next (suggested as an improvement on the system) was to give information to all persons interested in knowing the state of the property.’ Even in modern times, these aims have remained of central importance: see Scottish Home Department, First Report of the Committee

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often a motivation in other countries at least in a later period,20 does not seem to have been a consideration.

‘.. ane publick register ..’

Publicity was a central aim of the 1617 Act, as it had been of some of the earlier statutes. There was to be a fully public register – ‘ane publ ick register’ – which was ‘patent to all oure soverane lordis liegis’, an expression broader than that typically found in the legislation of the previous century where the need for interest was prescribed (‘all utheris haifand interes may haif recours tharto’). 21 Furthermore, in place of the meagre details which was all that the earlier legislation had required,22 the clerks were required ‘to engrose the haill bodie of the write in the register’. As instruments of sasine repeated the terms of the (unregistered) conveyance on which the transfer was founded,23 there was full disclosure of the transfer. The effect was for ownership of land, and the encumbrances and conditions to which it was subject, to become a matter of public knowledge. In that way, George Joseph Bell explained, ‘the credit of landed men in Scotland may be estimated with great correctness’, 24 thus assisting, not only those proposing to lend money, but anyone intending to enter into relations with anyone else. As Sir George Mackenzie pointed out, that might even include those wishing to marry off their daughters:25

When men are to bestow their Daughters, they are by our Registers, informed, and assured of the condition of those with whom they deal, and by their means, men are kept from giving their Daughters and their Fortunes, or a considerable share thereof, to Bankerupts, and Cheats.

The benefits of publicity, it seemed, were limitless.

on Land Registration in Scotland (Cmd 7451, 1948) (‘MacMillan Report’) para 9; Registration of Title to Land in Scotland: Report by a Committee appointed by the Secretary of State for Scotland (Cmnd 2032, 1963) (‘Reid Report’) para 11.

20See eg Ockrent (n 6) 14.

21The phrase is taken from the Act of 1555. Similar wording can be found in the Acts of 1540 and 1587.

22Ross (n 2) 205: ‘Such abbreviations of sasine as were entered in terms of the preceding act, were too short to answer the purpose of information to third parties. The infeftment might be qualified and clogged with burdens and conditions, of which these short notes could give no information.’ The requirement in the 1617 Act to engross the instrument of sasine was anticipated in the Acts of 1599 and 1600 which set up the failed Secretary’s Register.

23That conveyance was either a grant in feu (feu charter, feu contract, or feu disposition) or a grant by ‘substitution’ (disposition). Provision for the reg istration of conveyances had to await the Titles to Land (Scotland) Act 1858 (21 & 22 Vict c 76).

24Bell, Commentaries I, 717. Compare the position in the England of the same period where, from a Scottish perspective, there was ‘an invincible repugnance to a system which allows all a man’s financial and other transactions to become public property’: see J W Brodie-Innes, ‘Some outstanding differences between English and Scots Law’ 1915 JR 28, 43.

25G Mackenzie, ‘An Answer to some Reasons printed in England, against the overture of bringing into that Kingdom, such Registers as are used in Scotland’, in Pleadings in some remarkable Cases before the Supreme Courts of Scotland since the year 1661, To which, the Decisions are subjoyn'd (1673) 221, 225. Mackenzie’s example seems trivial only to modern eyes. Nonetheless, it is the only example known to the authors in which land registration is justified by reference to the marriage market.

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‘.. mak no faithe in judgment .. in prejudice of a third pairtie ..’

Apart from publicity, the other main objective of the 1617 Act was to suppress fraud and protect third parties.26 Whether fraud was more prevalent in Scotland than elsewhere in Europe can reasonably be doubted.27 Yet in Mackenzie’s estimation sellers of land were intrinsically untrustworthy,28 for in the limited market of the seventeenth century no honest man had reason to sell his estate but only ‘prodigals, who are too vitious, or distrest persons, who are ordinarly under too many necessities to be believed’. Certainly the opening words of the Act present a dismal picture:

Oure soverane lord, considdering the gryit hurt sustened by his majesties liegis by the fraudulent dealing of pairties who, haveing annaliet thair landis and ressavit gryit soumes of money thairfore, yit, be thair unjust concealing of sum privat right formarlie made by thame, rendereth subsequent alienatioun done for gryit soumes of money altogidder unproffitable, whiche can not be avoyded unles the saidis privat rightis be maid publict and patent to his hienes liegis ..29

No acquirer, it seems, could be sure that the land was free from latent real rights or even that the person selling it was still the owner.30 It was the purpose of registration to end this uncertainty, so that ‘that purchasers and creditors might know with whom they might safely contract’, 31 and that land values might rise accordingly.32 ‘Privat rightis’ would ‘be maid publict’ by registration of the deed by which they were constituted. If this requirement were neglected, the right would ‘mak no faithe in judgment by way off actioun or exceptioun in prejudice of a third pairtie’. Third parties, in other words, took the land free from unregistered deeds. And for those deeds that made it to the Register, the proper informing of third parties was, as a later Act put it, ‘the great use and designe of their registration’. 33

26This is sometimes characterised as ‘security of title’, by which is meant the security of a person seeking to acquire (as opposed to the security of the current owner). See below.

27Ockrent (n 6) 12-13, who points out that contemporary legislation for land registration in France and Denmark also give the elimination of fraud as a motivation.

28Mackenzie (n 25) 224: ‘what frail securities have such as are forced to rest upon the ingenuity of sellers, who of all people are least to be trusted?’

29The RPS translation is: ‘Our sovereign lord, considering the great hurt sustained by his majesty's lieges by the fraudulent dealing of parties who, having alienated their lands and received great sums of money for that, yet, by their unjust concealing of some private right formerly made by them, renders subsequent alienation done for great sums of money altogether unprofitable, which cannot be avoided unless the said private rights be made public and patent to his highness's lieges ..’

30Erskine II.3.39: ‘This latency .. of sasines, rendered all conveyances of heritable rights most insecure; for purchasers could not know by any research, whether the lands for which they were to give their money, had not been formerly sold, or charged with debts.’

31These words come from the preamble to the Act of 1693, APS ix 271 c 23, RPS 1693/4/64.

32Mackenzie (n 25) 225: ‘By these, the price and value of Land is much raised, for by how much more the purchase is certain, by so much more it is worth.’

33Act of 1696 (APS x 60 c 18, RPS 1696/9/136). Equally, the recording of such deeds was a protection against ‘fire, loss and accidents, to which they are exposed whilest they are kept in privat hands: Whereas, after regstration, nothing can destroy them, but what ruines the whole Kingdom’: see Mackenzie (n 25) 226.

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Yet, at least with hindsight, the protection conferred by the Act had obvious limitations.34 As 60 days35 were allowed for registration, there was a significant period during which a deed might be fully effective even though unregistered and undiscoverable.36 Further, as Lord Kames was later to lament, some important deeds were not eligible for registration at all,37 although matters were improved by subsequent legislation, and the original list of registrable deeds – essentially reversions and associated deeds , instruments of sasine, and renunciations of wadsets38 – was gradually augmented, starting in 1669 with i nstruments of resignation ad remanentiam.39 Even so, some real rights would continue to be constituted off-register and acquirers remained vulnerable to what, very much later, the Land Registration (Scotland) Act 1979 was to call ‘overriding interests’. 40 Finally, the protection conferred by the 1617 Act was entirely negative in nature. Acquirers had the assurance that most relevant deeds were on the Register, but there was no positive guarantee that such deeds were valid. Registration did not make a bad deed good, so that whether a deed was bad or good was a matter for the assessment of the acquirer.

Whatever the shortcomings, however, the 1617 Act was a radical step in the direction of protecting acquirers of land. By this ‘excellent statute’, wrote Viscount Stair, ‘purchasers in Scotland, may know better the condition of those with whom they contract about infeftments, and be more secure of lurking rights, than anywhere (so far as I can learn) in the world’. 41 This protection from ‘lurking rights’ was indeed on e of the key achievements of the Act.

Effect on property law

A matter of controversy in modern times has been the effect of registration statutes on the ordinary law of property.42 As originally understood, however, the effect of the 1617 Act was

34Bell, Commentaries I, 717. Apart from those mentioned in the text, there was the serious, if temporary, difficulty caused by the Act of 1686 (APS viii 600 c 33, RPS 1686/4/49), by which a deed marked by the clerk as registered was deemed to be registered even if, as appears to have been common, it had not actually been entered on the Register. Such deeds were thus invisible to acquirers. This accommodating rule was removed a decade later by the Act of 1696 (APS x 60 c 18, RPS 1696/9/136).

35‘..thriescore dayes efter the date of the seasing ..’

36Under the Act an unregistered deed was fully effective for its first 60 days, but thereafter could not be pled against third parties. Thus a person acquiring within the 60-day period was initially subject to the unregistered deed, but then ceased to be so subject if the deed was not registered within the period.

37Kames (n 15) 296-7. Characteristically, Kames’ preferred solution was for the Court of Session to extend the list of registrable deeds, on the basis that ‘it was undoubtedly the purpose of the legislature, to facilitate the commerce of land, by securing bona fide purchasers, for a valuable consideration, against such latent rights as are real, and consequently are effectual against purchasers’. It might be observed that the 1617 Act makes no requirement of either good faith or valuable consideration.

38The full list was ‘reversiounes, regresses, bandis and writtis for making of reversiounes or regresses, assignatiounes thairto, dischargis of the same, renunciatiounes of wodsettis and grantis off redemptioun, and siclyik all instrumentis of seasing’. Deeds for land held on burgage tenure were exempt on the basis that many burghs had registers of their own: see below.

39Act of 1669 (APS vii 556 c 4, RPS 1669/10/15). See Stair II.11.4, who speculates as to whether their omission from the 1617 Act was ‘by inadvertency or of purpose’.

40Defined in s 28(1) of the Land Registration (Scotland) Act 1979. By s 3(1)(a), the acquirer’s registration was subject to any overriding interests. The current law remains the same, although the term has been abandoned.

41Stair II.11.4. The accolade of ‘excellent statute’ also appears in Stair II.3.20.

42See below.

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probably rather modest. Prior to 1617, the transfer of land involved three distinct stages.43 First, a conveyance was drawn up and executed by the transferor. Next, legal possession or ‘sasine’ was given to the transferee by delivery of an appropriate symbol such as earth and stone. This ceremony had to take place on the land itself and was in practice conducted by agents (‘baillies’) on behalf of the parties accomp anied by witnesses and overseen by a notary public. Finally, the whole transaction – con veyance followed by sasine – was written up by the notary public in the form of an instrument of sasine. It was this notarial instrument which, under the Act of 1617, was to be registered and which gave the new register its name. In cases where the transaction proceeded by substitution rather than subinfeudation (ie so that the transferee replaced the transferor in the feudal chain, holding of transferor’s superior rather than of the transferor), the further step of entry with the superior was required.

On how registration might fit into this three- (or four-) stage system, the 1617 Act was fatally unclear.44 Registration was needed, and within 60 days, if the instrument of sasine was to affect third parties, for an unregistered deed made ‘no faithe in judgment by way off actioun or exceptioun in prejudice of a third pairtie who hathe acquyred ane perfyit and lauchfull right to the saidis landis and heretages’. But – and in (presumably deliberate) contrast to the statute which had established the Secretary’s Register 45 – this consequence was declared to be without prejudice to a right ‘to use the saidis writtis aganis the pairtye maker thairof, his heiris and successoures’. When, then, was ownership of the land to pass? Did it pass with the drawing up of the instrument of sasine, as before, albeit on the basis that the ownership so conferred was defeasible in a question with third parties? Or had the Act added a new and mandatory step, so that registration was now constitutive of ownership?

Either view produces a workable enough system of land transfer represented, in modern law, by the systems found in France and Germany respectively.46 What was less workable was a failure to choose between them. Yet for more than two centuries after the Act of 1617, the law hesitated to make the choice; 47 and if Kames was firm in his view that an unregistered instrument of sasine was ‘no better than if the solemnity of delivering earth and stone were omitted’, or in other words null, 48 his contemporary, Walter Ross, thought that such a sasine was ‘at least a real right’. 49 That the issue was not seen as pressing is indicated

43The procedure described in the text encompasses the ‘later’ innovation of conveyances a me vel de me. Where this device was not used, the transferor resigned the fee to the superior, and it was the superior who made the grant to the transferee. For further details, see eg Scottish Law Commission, Report No 168 on Abolition of the Feudal System (1999) paras 7.1-7.3; K G C Reid, The Law of Property in Scotland (1996) paras 87-93 (G L Gretton).

44A later Act, the Real Rights Act 1693 (APS ix 271 c 22, RPS 1693/4/63), provided that real rights on which sasine was taken were to ‘be preferable and preferred according to the date and priority of the registrations of the sasines’, but this was designed less as a statement of general principle than as the bringing to an end what had become an anomalous distinction between the respective priorities of public and base infeftments. For background, see Scottish Law Commission, Discussion Paper No 128 on Land Registration: Registration, Rectification and Indemnity (2005) paras 5.55-5.57. A statement that registered deeds ‘shall in competition be preferable according to the date of registration’ appears in s 142 of the Titles to Land Consolidation (Scotland) Act 1868 (32 & 32 Vict c 101).

45Act of 1600 (APS iv 237 c 36, RPS 1600/11/49). There the sanction for non-registration was simply that the deed was ‘utherwayes to be null and to mak na fayth in judgement nor outwith and the said nullitie to be ressavit be way of exceptioun’.

46And in the countries in the French and German traditions. In French law, an unregistered deed of transfer is not opposable to a good-faith acquirer; in German law, ownership is not acquired until the deed is registered.

47Ockrent (n 6) 89-96; Farran (n 6) 210-12; Kolbert and Mackay (n 6) 284-6.

48Kames (n 15) 295.

49Ross (n 2) 210. Erskine’s views (II.3.40) appear to have been similar: ‘The not registration, therefore, does not avoid the seisin; it is only a ground for postponing it in a question with third parties, who may claim the

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by the failure to deal with it in one of the regular Acts on the subject of registration which were passed during the seventeenth century. In the end, it was left to the Court of Session, in the landmark case of Young v Leith (1847),50 to decide by a majority that registration was constitutive of ownership, and that an unregistered instrument of sasine left the property rights undisturbed.

The tale has an unexpected coda. Right at the end of the twentieth century the argument was renewed that ownership of land might pass without registration, and following the decision in Sharp v Thomson51 it seemed, for a time, as if that view had been accepted by the House of Lords. It was only with the later decision of the House of Lords in Burnett’s Tr v Grainger52 that it was possible to reassert the orthodoxy established by Young v Leith. Today it is beyond dispute that ownership passes only with registration. Indeed the matter is now the subject of express statutory provision.53 But the previous and enduring uncertainty on a point so fundamental to the law of property is hardly to the credit either of the 1617 Act or of the Scottish system of land transfer itself.

Simplification of land transfers

If registration was to confer ownership, and in a public manner, then the way might have seemed open to simplify the rather cumbersome system of land transfer. Yet, for the first two centuries after the creation of the Register of Sasines, the law clung tenaciously to the old forms. Change, however, when it eventually came, came quickly.54 In 1845 the ceremony of symbolical delivery ceased to be necessary,55 and in 1858 instruments of sasine too were abandoned, with conveyances becoming directly registrable in their place.56 Thereafter ownership was transferred merely by registration of the conveyance, a rule which still survives today. Until the feudal system was laid to rest in 2004,57 registration was declared to be the equivalent both of the giving of sasine and of entry with the superior.58

Mechanics of registration

same subject under a title which has no dependence upon that seisin.’ Insofar as Stair II.11.11 is to contrary effect, Erskine thought that he had been misled by Craig, Jus Feudale III.3.25.

50(1847) 9 D 932. The opinions on both sides display great learning and insight. The decision of the Court of Session was upheld by the House of Lords: see (1848) 2 Ross LC 103.

511997 SC (HL) 66 reversing the decision of the First Division reported at 1995 SC 455.

52[2004] UKHL 8, 2004 SC (HL) 19. For a review of the debate, see Scottish Law Commission, Discussion Paper No 114 on Sharp v Thomson (2001) and Report No 208 on Sharp v Thomson (2007). The large amount of periodical literature which was generated is listed on pp 44-7 of the Report.

53Land Registration etc (Scotland) Act 2012 s 50, replacing s 4 of the Abolition of Feudal Tenure etc (Scotland) Act 2000.

54See eg Ockrent (n 6) 112-21.

55Infeftment Act 1845 s 1 (8 & 9 Vict c 35).

56Titles to Land (Scotland) Act 1858 s 1, later re-enacted as s 15 of the Titles to Lands (Consolidation) (Scotland) Act 1868. In partial replacement for the instrument of sasine, a warrant of registration was endorsed on the conveyance requesting the registration of the deed: see below.

57Abolition of Feudal Tenure etc (Scotland) Act 2000 s 1, which came into force on 28 November 2004.

58In addition to the statutes mentioned in the previous footnotes, see Conveyancing (Scotland) Act 1874 (37 &

38Vict c 94) s 4(2).

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Unlike the failed register which it replaced, the Register of Sasines was set up under the direction of the Lord Clerk Register and not the Secretary of State.59 Like that register there were, in addition to a central register in Edinburgh, seventeen local or ‘particular’ registers, with an open choice between the particular or the central register.60 In an expression familiar from earlier legislation,61 the particular registers were to be run by deputes ‘of guid fame, literature and conversatioun’. Their fee was capped at 26 shillings and 8 pence for each leaf used in transcribing the deed; if less than a full leaf were needed, the cost was to be reduced pro rata.

The method of registration was straightforward. Each deed was copied into the Register62 and then returned to the ingiver marked with a certificate showing the date of registration and the page number in the relevant volume. But the time allowed for this, a mere 48 hours, often proved insufficient, meaning either that registration was late or, in a growing abuse, that the deed was certified and returned without ever having been entered in the Register.63 Matters were made easier with the introduction of minute books in the closing decades of the seventeenth century,64 and in practice it seems to have been accepted as sufficient compliance with the Act if the (much briefer) entry there was made within the required 48 hours even if transcription on to the Register came later.65 A further advantage of minute books was to record the date and time on which deeds were presented and so to ensure that deeds were registered in the right order, something which could not previously be taken for granted.66 Indeed it was not long before the date in the minute book came to be regarded as the date of registration itself.67

That keepers of the local registers often fell short of acceptable standards is clear from the constant stream of litigation on matters such as inaccurate transcription of deeds and

59This was provided for by the 1617 Act.

60The 1617 Act listed their locations: Kirkwall, Inverness, Elgin, Aberdeen, Dundee, Perth, Stirling, Cupar, Edinburgh, Lauder, Selkirk, Hamilton, Glasgow, Dunbarton, Ayr, Wigtown, and Dumfries. For later changes, see Ockrent (n 6) 79.

61Act of 1600 (RPS 1600/11/49).

62In the words of the 1617 Act, the deputes were required ‘to engrose the haill bodie of the write in the register under the payne of deprivatioun of the clerk of his place and service and of the office of notarie in all tyme thairefter’.

63The abuse was facilitated by the Act of 1686 (APS viii 600 c 33, RPS 1686/4/49) which provided that certification of a deed ‘shall make the samen sufficient and valide for the security of the pairty, albeit by the omission or negligence of the keeper of the register or his deputs they should not be found booked or insert in the register’. This ill-judged provision was repealed after only a decade by the Act of 1696 (Act APS x 60 c 18, RPS 1696/9/136).

64The first legislative attempt to establish minute books was the Act of 1672 (APS viii 80 c 40, RPS 1672/6/50). The relevant part of this lengthy Act, which is mainly about courts, appears in s 32 of the RPS transcription. This followed on from an Act of Sederunt of 6 June 1663. Its lack of success may be judged by the fresh provision made by the Act of 1693 (APS ix 271 c 23, RPS 1693/4/64).

65For minute books generally, see Ockrent (n 6) 97-108. The requirement that the ingiver (or, when after 1868 postal presentation was allowed, a clerk) sign the entry in the minute book survived until 1948: see Public Registers and Records (Scotland) Act 1948 s 2, implementing a recommendation in para 28 of the Macmillan Report (n 19).

66The mischief which the Act of 1693 (APS ix 271, c 23, RPS 1693/4/64) was designed to solve was stated in the preamble to be that previous Acts ‘have been much frustrated by the keepers of the registers not inserting the same in the registers at the time and in the order they were presented to them, whereby none could know by inspection of the registers what writes appointed to be registrate were in the hands of the keepers of the registers, and thereby could not securely bargain’. Accordingly, the Act directed that in future ‘the writes shall be registrate exactly conform to the order of the said minute book’.

67This, however, was not formalised by legislation until s 19 of the Titles to Land (Scotland) Act 1858.

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