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.
The National Archives of Scotland
Crown Copyright 2005
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