in Mrs. Le Neve's answer, wherein she denies notice of the former settlement; but this amounts to no more than a denial of personal notice. And she says that Norton was attorney or agent for her husband, but that she consented he should prepare the marriage articles, she having confidence in him, upon her husband's recommendation. Now, if she confided in Norton, it is not material upon whose recommendation it was; nor is it material whether he was or was not employed by her husband." 609. Lord Hardwicke then cited the cases of Brotherton 2 Vera. 574. v. Hatt, and Jennings v. Moore, and said "those cases proved it not to be material by whom Norton was originally employed, if he was trusted by Mrs. Le Neve. "As to the second question, it was objected for Mrs. Le Neve, that notice being denied by her answer, and proved only by one witness, it was not therefore proved sufficiently within the rules of the Court. But I take the rule of Court, that where a fact is denied by an answer, it must be proved by more than one witness, to hold only where the answer contains an absolute denial of the same fact, which is proved by the witness. But where there is any difference between the facts, the rule does not prevail. In this case the denial is only general; whereas the bill charges notice to Norton and Dandridge, the trustees. This general denial amounts only to a denial of personal notice to herself, and is a kind of negative pregnant, which may be consistent with notice to her agent. Norton, the trustee, being examined for the plaintiffs, proves that a copy of the first articles was delivered to him, to take counsel's opinion upon, which was probably on occasion of the second settlement; and I take this to be a sufficient proof of notice within the rule of this Court. The third and principal question is, whether the second articles and settlement shall be postponed to the first, notwithstanding the legal estate vested by the registry of the act, by reason of the notice; which I shall consider, whether sufficient or not for that purpose; 1. If it had been personal. II. As the case is, where notice was given to the agent. The question is of great extent, and depends on the construction of the statute 7 Ann. 20. By the recital in the preamble of that act, it appears, the intent was to secure purchasers against prior and secret conveyances, and fraudulent incumbrances; so that the mischief intended to be obviated by the act arose only in respect of the secrecy of former incumbrances. But if a person has notice of a prior incumbrance, it cannot be secret as to him. It was said that this act intended to establish a particular kind of notice, viz. by registering the conveyance. But this is only with regard to the legal estate; and the act does not take away the equity of the prior incumbrancer, but leaves the question still as open to him; and the subsequent purchaser, if he had notice, can be in no danger from a secret conveyance. The present case has been properly compared to that of the enrolment of bargains and sales within 27 Hen. VIII., which act, though not in the same words, is to the same effect as that under consideration. Now, upon that act, if there be a prior bargainee whose deed is not enrolled, and a second whose deed is properly enrolled, if this last had notice of the prior deed, the prior shall prevail in equity: and if he has any other conveyance, as a feoffment or a lease and release, the first vendee shall likewise prevail at law. I consider this registry act upon the same footing as the 27 Hen. VIII., and that it shall control only the legal estate. The case put at the bar, that if a man employs an attorney to register his deed, which he neglects to do, and afterwards gets another conveyance of the same estate, which he registers, the first deed shall prevail, is material. . So, if another person, not an attorney, purchases with notice of a prior incumbrance. These cases, though clear, and stronger than the present, show that there may be relief in equity, notwithstanding the registry act. "The case of Lord Forbes v. Deniston in the House Ante, § 21. of Lords, 27th Feb. 1722, which came from Ireland, where there is an act for a general register, is applicable to this question. There the late Earl of Granard had made a lease, which was not registered pursuant to the Irish act. He and his son Lord Forbes afterwards made a subsequent conveyance to the use of Lord Forbes, &c., which last was duly registered, and carried the legal estate; but an agent of Lord Forbes had notice of the lease before this conveyance. This cause was twice heard in Ireland, on the last of which hearings, before Lord Middleton, 17th Feb. 1721, he decreed a perpetual injunction against Lord Forbes, to restrain his proceeding against the lessees under the lease, which was not registered. On hearing the cause in the House of Lords, February 1722, the decree was reversed, because Lord Forbes disputed his father the Earl of Granard's power of leasing for any longer term than during his life. The Lords therefore adjudged that all proceedings against the lessees (except for breach of covenants) should be stayed during the Earl of Granard's life, and then Lord Forbes to be at liberty to try his right. So that they gave the lessees full relief as to the registry act; though the other question as to Lord Granard's power of leasing was still left open. In Blades v. Blades, before Ante, § 22. Lord King, 2d May 1727, a mortgage from an heir at law, who had notice of a will whereby the estate was devised to another, was decreed fraudulent and void against the devisee, though the will was not registered; which I the rather cite, because Lord King generally adhered. to the law as much as any person that has sat in this court. There was a case of Chival v. Nichols and Hall in Scacc.; in Lord Chief Baron Ante, § 23. Ante. Gilbert's time, where relief was given against the registry act upon equitable circumstances; which I mention only as a general authority, that equity may prevail against this act, without taking notice of the particular state of that case, where actual fraud was charged. But that of Blades v. Blades went merely on the point of notice; and in that of Lord Forbes there was notice only to the agent. All these authorities prove that the taking a legal conveyance, after notice of a former, is in itself a species of fraud, and takes away the bona fides of the subsequent incumbrancer, and puts him in malá fide; for though he knew the first conveyance was not legal, yet he knew that the grantor's conscience was bound by it; and this is within the definition of dolus malus by the civil law; Dig. lib. 4. tit. 3. de dolo malo, 1. s. s. 2., where Labeo defines it, omnem calliditatem, fallaciam, machinationem, ad circumveniendum, fallendum, decipiendum, alterum, adhibitam. This is the true ground of the determinations in all cases of notice. If this be so as to notice in general, we are next to consider whether notice to the attorney or agent be sufficient. Now, if the ground of the determination be mala fides, it is all one whether it be in the party or in the agent. It is proved by Norton that the first articles were put into his hands, to advise with counsel; and it is objected that this may have been a fraud in Norton, in collusion with the husband, upon the defendant Mrs. Le Neve. This may be the case; but who ought to suffer but the party who trusted Norton, the agent? and not those who did not trust him. In the case of Brotherton v. Hatt, it is probable the subsequent mortgagee was imposed upon; and so probably was the purchaser in Moore v. Jennings. And if I should determine this not to be a good notice, it would overturn all the cases of notice to the agent, who probably, in all those instances, imposed upon his principal. Here Norton was a trustee, and privy to the whole transaction; and I am therefore of opinion, that, both as agent and trustee, notice to him was good notice to the party; and that this is sufficient to take the case out of the registry act." must be fully 25. But unless notice of a prior unregistered deed The notice or incumbrance be fully proved, and there appear proved. to have been some fraud in the transaction, the Court of Chancery will not give any relief. 2 Atk. 273. 26. A bill was brought by a judgment creditor, to Hine v Dodd, be let in upon the estate of one Proof and his wife, in Middlesex, preferably to the defendant, who was mortgagee of the same estate, upon a suggestion that the defendant had notice of the judgment before the mortgage was executed; and likewise to inquire into the consideration of the mortgage. The judgment was entered on the 12th March 1733, but not registered till the 12th of June 1735. The mortgage was made the 24th of May 1735, and registered the 2d June 1735. Deniston, Lord Hardwicke.-"This case depends upon the notice the defendant had of the judgment before his mortgage was registered. The Register Act 27 Ann. c. 20. is notice to the parties, and a notice to every body; and the meaning of this act was to prevent parol proofs of notice or not notice. But, notwithstanding, there are cases where this court has broken in upon this, though one incumbrance was registered before another; but it was in cases of fraud. The Forbes v. first was an Irish case in the House of Lords; the next Blades v was a Yorkshire case before Lord King. There may possibly have been cases upon notice devested of fraud, but then the proof must be extremely clear. But though in the present case there are strong circumstances of notice before the execution of the mortgage, yet, upon mere suspicion only, I will not overturn a positive law." He observed upon the evidence, that there was barely the evidence of a defendant's confession, in contradiction to his answer, and contrary Blades, ante. |