Scottish land and property records for family history
See below for a list of Scottish land and property records in the Genhound database.
Although a part of the United Kingdom since 1707, Scotland had (and still has) a completely separate and independent legal system, including the laws relating to land ownership. Scottish land and property records were kept systematically from a very early period and can provide a wealth of information to those family historians lucky enough to have ancestors that owned property.
Until the system was reformed in 2004, land in Scotland was held through the feudal system. All land theoretically belonged to the Crown, and the Crown passed ownership to its immediate "vassals" ("subject superiors" or "Crown tenants"), who in turn could pass on ownership to their vassals. Originally the vassals paid for the land granted with military support though this has long been replaced by a monetary payment. Scottish law divided property into two categories: buildings, anything to do with land and mineral rights, known as heritable property, and usually went to the eldest son. The rest, called movable property consisted of goods, money, and other items. Until 1868, hertitable property had a seperate legal process for inheritance explained in the section on Retours below. Inheritance of moveable property was adminstered through a testament confirmed the Commisary Courts.
There are a number of types of documents specific to Scotland that were used to record transactions involving land and property that may be useful for genealogy research.
Retours or Services of Heirs
Whenever a vassal died, his heir had to prove his right to inherit. In the case of a Crown tenant, a jury of local landowners heard the evidence and decided if an individual was the rightful heir. Their findings were written up as a return or retour to the Royal Chancery. The Chancery would then recognise the individual as the proper heir ('serve him as heir'), giving him full title to his lands. The retours were kept in the Chancery records and are now in the Scottish National Archives. In dealing with their own tenants who they probably knew personally, however, crown tenants would usually confirm a person's right to inherit in an informal way and then issue a precept of clare constat, ordering their officials to grant the heir his title. There is no central register of these precepts. If however the Crown tenant did not know the heir or for some other reason was refusing to grant title to the property, the vassals (subtenants) would use the Chancery system to obtain a jury's opinion on their claim. In such cases the retours were recorded in the records of the Chancery.
Inheriting land by means of trust disposition and settlements
The trust disposition was a form of deed that enabled an individual to ensure the transfer of landed property to his chosen heirs. A deed was drawn up transferring ownership of the land to a group of named trustees. However, the person making the deed (the granter) retained complete power over the property. The deed was normally recorded only after the death of the granter, and frequently included a settlement of the succession to the granter's moveable property. Known as a trust disposition and settlement or 'TD&S, it could be registered in one of the registers of deeds or the local commissary court (up to 1809). From 1868 individuals were able to pass on their heritable property using a conventional will and the services of heirs procedure was gradually abandoned.
Sasines
Specific to Scotland, the instrument of sasine (pronouned "sayzin") is a document that records the transfer of ownership of a piece of land or of a building, similar to a deed. However, a sasine may also be used record the use of land as security for a debt whether in the form of a mortgage or other bond or commercial transaction. As well as the ownership of the land itself, a sasine may record the transfer of rights associated with a piece of land such as mining or fishing rights. There were local registers of sasines kept by burghs as well as a general register of deeds, many of which have been indexes. There is a dedicated page on sasines in this section with more information on the indexes and another page containing a glossary of terms.
Commissary court records
As well as having the usual local jurisdiction the principal commissary court at Edinburgh had general jurisdiction over the whole of Scotland. The court had exclusive jurisdiction over cases involving marriage, divorce, separation and legitimacy and in the confirmation of testaments of all persons dying outside Scotland who had moveable property in Scotland.
The primary business of the local commissary courts was the confirmation of testaments, the registration of inventories and settlements and other executry matters. They also had jurisdiction in actions of slander, maintenance of a wife, children or relative and actions for debt up to £40. Both the Edinburgh Commissary and local Commissary Courts kept Registers of Deeds until 1809. Local commissary courts were abolished 1823 and the Edinburgh commissary court 1836, their duties being transferred to the sheriff courts.
Freeholders' records
Before reform of the voting system in 1832 details of freeholders, men who owned sufficient land or other heritable property to were entitle them to vote were kept by the sheriff courts and for some courts survive from the 17th century. Freeholders were men who owned land or other heritable property with a value of forty shillings or more. This law had originally been established in 1432, and unlike the rest of the UK, in Scotland, the "forty shillings" was taken to mean equivalent to its value in medieval times, thus restricting voting rights to only the wealthiest.
