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Monday 24 November 2014
 
 
 

Deeds

What is a deed?

A deed is a legal agreement, obligation or other document registered with a court. This is sometimes done for safekeeping but is more usually done to establish the basis of a legal right before proceeding to a related legal action. In registering the deed, the person presenting it paid a fee to a court clerk who copied the document into the register and then kept the original document. This original document was called the warrant. While for most historical purposes the recorded version is satisfactory, the warrant will show the signatures of the parties to the deed. In some cases, the record volume has been destroyed or lost over the years and if the warrants survive, they can function as a substitute. In copying the document, many clerks also made a brief note of the entry in a quite separate minute book. These were kept to prove that they had done their work but they were also used as an index if records had to be retrieved. Modern searchers can use them in the same way. Once registered, the parties received certified extracts of the document.

Types of deed

Bonds
There are many types of bonds recorded, but in essence a bond is an undertaking by the granter to pay a certain sum to the grantee (usually in repayment of a debt), or to perform a certain action for him. The grantee could transmit his right to a third party, which was done by means of an assignation. Assignations (or 'deeds of assignment') are also commonly found in registers of deeds. The parties to the assignation were the original grantee and the third party. Once the sum had been paid or the action performed, the original granter required evidence that this was so. This was provided by means of a discharge (or 'acquittance') given by the person in whom the right last resided. This could be the original grantee or an assignee. Discharges could also be used to release individuals from their duties as trustees.

Contracts
Whereas a bond is a unilateral deed, (i.e. only the granter incurred an obligation), a contract is a bilateral deed by which both parties incurred obligations. Contracts could relate to moveable or heritable rights.

Until the 20th century, it was common practice for a contract of marriage to be drawn up for members of families who owned land or other extensive property. Such contracts were made to ensure the financial security of the family, particularly the wife and children and could be drawn up before or after the marriage ceremony. In a marriage contract you can expect to find the names of the couple and their fathers and sometimes the names of other relatives. Marriage contracts were private documents and so did not have to be registered. Please note that marriage contracts are commonly registered after one spouse has died and not, as one might expect, at the time when the contract is drawn up. This means that when looking for a marriage contract one can expect to be looking for a deed registered sometime (perhaps a very long time) after the marriage is known to have taken place.

Another common contract is the contract of co-partnery. If your ancestor is known to have been part of a business it is possible that he entered into a contract of co-partnery with another individual. Such a contract might be found in a register of deeds. Again, the contract, if registered at all, might be recorded long after it was agreed.

Tacks
A tack is a similar deed to the modern lease, and is a contract between a proprietor and a tenant (or 'tacksman') in which the tacksman could enjoy possession of the proprietor's land for a certain time on payment of a set rent. Indeed there are also leases to be found in the register of deeds. Only a tiny proportion of the many thousands of tacks that once existed were ever registered, however, and usually only if there was a dispute about the terms. In practice, if you are looking for a particular tack or lease, there is more likelihood of finding it among the estate papers of the landowner concerned.

Wills and codicils
Occasionally, wills and codicils (additions to wills) that cannot be found in the commissary or sheriff courts can be found in the registers of deeds. Families could also convey property from one member to another by means of a trust disposition, although dispositions could also be made between unrelated individuals. Trust dispositions are quite common deeds but they do tend to relate primarily to people with land or other extensive property.

Factories
A factory is where one party empowers another party to act on his or her behalf. It is common for an individual travelling overseas to engage someone to act on his behalf by means of a factory.

Protests and deeds of submission
Deeds could also be created when an agreement had not been fulfilled. Protests or bills of protest are where an individual seeks payment from another individual in completion of an earlier agreement such as the delivery of goods or payment for services. Many sheriff courts have a separate register of protests. A deed of submission, sometimes called a compromise, would be created in order to refer a dispute to the arbitration of an agreed person or persons so that the parties involved might avoid litigation. The arbiter's decision was usually given on the back of the deed of submission and is known as a decreet arbitral.

Where might a deed be registered?

Deeds could be registered in a number of places: in the Register of Deeds at the Court of Session, in sheriff courts, in royal burghs, in commissary courts or in the courts of the heritable jurisdictions (the private courts of major landowners). The heritable jurisdictions were abolished in 1748 and the registers of deeds in commissary courts were abolished in 1809. If you do not know where a deed was recorded, searching can be a bit of a guessing game. The more important the deed, the more likely it is to be registered in the Register of Deeds of the Court of Session. Otherwise a deed about a relatively minor matter of local interest could involve you in a trawl of the deeds registers maintained by various other courts.

The Register of Deeds of the Court of Session

The formal title for the Register of Deeds is the Books of Council and Session. The series commenced in 1554 and was based at Edinburgh. It is now held in the National Archives of Scotland (NAS ref. RD). The register contains official copies of deeds presented to the Court of Session, the highest civil court in Scotland. The full range of deeds was recorded there. There are contracts or other obligations such as sales of contracts, dispositions of heritable property, marriage settlements, bonds, shipping agreements, building contracts and occasionally some apprenticeship agreements. While the register does contain a very few title deeds, it does not contain a systematic record of landownership. Title deeds are normally to be found in the Register of Sasines. Unlike the Register of Sasines, the Register of Deeds is a voluntary register. By registering a deed at the Court of Session, the undertaking then had the force of a decree of court.

In the register of deeds you can find many sorts of documents that may be of use to family historians.

Deeds will show names and designations of family members, particularly in marriage contracts, they may indicate the sort of business people were involved in (e.g. co-partnery agreements) and may also indicate the movement of heritable property (land, buildings) in some cases. It has been said that almost every Scotsman or woman of any consequence after the mid-16th century will be mentioned somewhere in the Register of Deeds.

There are indexes for the Register of Deeds of the Court of Session for the years 1554-1595, 1661- 1702, 1705-7, 1714-15, 1750-2, 1765, and from 1770 to the present. For the gap periods where there is no index, there are usually minute books that can act as a substitute. While NAS staff can search for single deeds in particular years where there are indexes, they cannot undertake searches in the minute books.

Sheriff Court Registers of Deeds

Not all the sheriff courts kept a register of deeds, but there is at least one for each county. These records are kept in the National Archives of Scotland (NAS ref. SC). The registers of deeds for the sheriff courts vary in their covering dates from court to court and not all survive. The earliest surviving register is for Perth Sheriff Court, from 1570. From 1809, the registers were kept quite consistently. A few of the sheriff courts have indexes for their deeds registers after 1809 but the majority do not. Consequently searching them can be laborious, involving the use of minute books, or sometimes simply leafing through the pages.

Sheriff court Covering dates NAS reference
Ayr 1800-99 SC6
Cromarty 1819-32 SC24
Cupar 1809-1900 SC20
Dingwall 1794-1889 SC25
Dunblane 1809-1902 SC44
Dunoon/Inveraray 1809-88 SC31
Haddington 1809-94 SC40
Hamilton 1810-1897 SC37
Kirkcudbright 1623-1700 SC16
Linlithgow 1809-1894 SC41
Paisley 1809-1899 SC58
Perth 1809-1900 SC49
Stirling 1809-1900 SC67
Tain 1812-1884 SC34

Royal Burgh Registers of Deeds

There are registers of deeds for almost half of the 66 royal burghs. These are held in the National Archives of Scotland (NAS ref. B). The dates for these registers vary considerably (the earliest being that for Edinburgh in 1561) and they extend into the 20th century. Unfortunately, only some of the registers are indexed.

There are very few minute books for the burgh registers of deeds, so that searching them can be time consuming unless you have a very strong lead as to when a document was registered.

Commissary Court Registers of Deeds

Before 1809, the commissary courts could register deeds as well. These records are held in the National Archives of Scotland (NAS ref. CC). Again, the records were kept quite patchily. There may or may not be minute books and gaps occur in the registers although these can often be filled by the warrants. Apart from Peebles, 1755-62 (NAS ref. CC18), the commissary court deeds are not indexed, so that searching them can be time consuming unless you have a very strong lead as to when a document was registered.

Local Court Registers of Deeds

Some local courts also kept registers of deeds, before 1748. Where these survive, they are usually in the National Archives of Scotland (NAS ref. RH11). Some of the gaps in the registers are filled by the information given in other court books. There should be a note within the relevant catalogue to local court records should this be the case. The local court registers of deeds are not indexed, so that searching them can be time consuming unless you have a very strong lead as to when a document was registered.

Enquiries about deeds

As mentioned above searching for deeds can be very time consuming. Staff at the NAS can carry out limited searches on your behalf provided that you have good information about the date of registration. You should note that the date of registration is often much later than the date of the deed.


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