Jolland v. Stainbridge, 3 Ves. Jun. 478.' Ante, § 26. Utility of the to a positive act of Parliament made to prevent any temptation to perjury from contrariety of evidence. But what weighed principally with him was the great danger of overturning an act of Parliament, and making it mere waste paper. To be sure, apparent fraud, or clear and undoubted notice, would be a proper ground of relief; but suspicion of notice, though a strong suspicion, was not sufficient to justify the Court in breaking in upon an act of Parliament. The Court therefore decreed, so far as the plaintiff's bill sought relief, by postponing the defendant's mortgage to the plaintiff's judgment, that it should be dismissed with costs. 27. In a modern case, a registered conveyance of premises in Middlesex, for valuable consideration, was established against a prior devise not registered; the evidence of notice, which ought to amount to actual notice, not being sufficient. And the Master of the Rolls, (Sir R. P. Arden) said he regretted that the statute had been broken in upon by parol evidence; and was very glad to find that Lord Hardwicke, in Hine v. Dodd, had said that nothing short of fraud would do. 28. The utility of the Register Acts is proved to a demonstration by two facts; namely, that lands in register counties bear a higher price, and money is lent on the security of those lands, at a lower rate of interest, than on estates situated in counties where there is no register. It is therefore surprising that the legislature, with such proof before them, does not extend the register acts to all the counties in the kingdom. The reason usually given is, that the landed proprietors object to disclose the situation of their estates to the public; but, in point of fact, there is very little disclosure in a memorial drawn according to the rules prescribed by the register acts, as the consideration and uses of the deed need not be mentioned therein; nor does there appear to be any necessity for inserting more circumstances in a memorial, than those 29. The Register Acts would have a much more powerful effect, if it were established that the registering a memorial of a deed should in all cases operate as notice, both at law and in equity, of such deed. The adoption of the opposite doctrine by Lord King, in the case of Bedford v. Backhouse, has been productive of infinite mischief, and appears to have been disapproved of by Lord Camden; but is now so fully Ante, $19. Wyatt v. Barestablished, that it can only be altered by an act of well, 19 Ves. the legislature. 435. n. 1. § 11. 30. It would also be a very great amendment of the law, if it was enacted by the legislature, that no averment should be admitted, either at law or in equity, that a person claiming under a deed that was registered, had notice of a prior unregistered deed. We might in this case borrow some wisdom from ancient France, where several points respecting substitutions 1 Inst. 290. b. being unsettled, and the laws on this head being different, in different parts of that kingdom, they were all reduced into one by the ordinance of 1747, which was framed by the Chancellor D'Aguesseau, after taking the sentiments of every parliament in the kingdom upon forty-five different questions proposed to them upon the subject. The 39th question is, "Whether a creditor or purchaser, having notice of the substitution, before his contract or purchase, is to be admitted to plead the want of registration." All the parliaments, except that of Flanders, agreed that he Register of annuities. See also 3 Geo. 4. c. 92. Holbrook v. 19 Ves. 131. Tucker v. Thurstan. 17 Ves. 131. was. That to admit the contrary doctrine would make it always open to argument, whether he had or had not notice of the substitution. That this would lead to endless uncertainty, confusion, and perjury; and that it was much better that the rights of the subject should depend upon certain and fixed principles of law, than upon rules and constructions of equity, which must be arbitrary, and consequently uncertain. The ordonnance was framed accordingly; and those who have commented upon it, lay it down as a fixed and undeniable principle, that nothing, not even the most actual and direct notice, countervails the want of registration. So that if a person is a witness, or even a party, to the deed of substitution, still if it is not registered, he may safely purchase the property substituted, or lend money upon a mortgage of it. 31. By the statute 53 Geo. III. it is enacted, that within thirty days after the execution of every deed, bond, instrument, or other assurance, whereby any annuity or rent charge shall be granted for lives, or for years determinable upon lives, a memorial of the date of every such deed, &c. of the names of all the parties, and of all the witnesses thereto, and of the persons for whose lives they shall be granted, and of the persons by whom the same are to be received, the pecuniary consideration, and the annual sum to be paid, shall be enrolled in Chancery, in the form therein mentioned. 32. This act does not however extend to Scotland or Ireland; nor to annuities given by will or marriage settlement; nor to annuities secured upon freehold or copyhold lands of equal or greater annual value than the said annuity, over and above the said annuity and the interest of any sum charged thereon, whereof the grantor is seised in fee, or the fee simple whereof in possession the grantor is enabled to charge at the time of the grant, or secured by the actual transfer of stock; nor to any voluntary annuity, nor to annuities granted by bodies corporate, or trust created by act of Parliament. Bedford Level. Sharp, 10 East, 33. By the statute 15 Cha. II. c. 17. § 8. for set- Register of the tling the draining of Bedford Level, it it enacted, that all conveyances by indenture of the 95,000 acres contained within the said Level, or any part thereof, entered with the register of the corporation in a book to Hodson v. be kept for that purpose, shall be of equal force to 350. convey the freehold and inheritance thereof, as if the same conveyances by indenture were, for valuable considerations of money, enrolled within six months in one of the King's Courts of Record at Westminster; and no lease, grant, or conveyance of, or charge upon the same, except leases for seven years, or under, in possession, shall be of force, but from the time it shall be entered with the register. deeds. 34. It is a common practice to enrol deeds for safe Enrolment of custody, that is, to get them transcribed upon the records of one of the King's Courts at Westminster, or at a court of quarter sessions. But every deed, before it is enrolled, must be acknowledged to be the deed of the party before a Judge of the Court in which it is to be enrolled; or before a Master in Chancery, if intended to be enrolled in the Court of Chancery. This acknowledgment is signed by the Judge or Master in Chancery, before whom it is acknowledged; and such signature is the officer's warrant for enrolling the deed. 35. The enrolment of a deed does not make it a 2 Lilly's Pr. record, but it thereby becomes a deed recorded. Reg. 69. For there is a difference between a matter of record, and a thing recorded to be kept in memory. A record is the entry in parchment of judicial matters controverted in a court of record, and whereof the Court takes notice; but an enrolment of a deed is a private act of the parties concerned, of which the Court takes no cognizance at the time when it is done. 2 Freem, 259. Bro. Ab. Tit. pl. 11. 36. Where deeds are enrolled for safe custody, the enrolment is evidence only against the party who sealed the deed, and all claiming under him; but the party enrolling can never afterwards aver that it was not his deed, or that he was within age, or under duresse. END OF THE FOURTH VOLUME. B. Bensley, Bolt Court, Fleet Street. |