It is, I believe, usual to search for judgments against a vendor, only from the time he purchased the estate; but this practice is not correct, because judgments bind after purchased lands, and will consequently affect such lands even in the hands of a purchaser (1).

Judgments do not, it seems, bind leasehold estates till writs of execution are taken out upon them, and delivered to the sheriff (m). And yet, upon purchase of a leasehold estate, judgments must be searched for; because the sheriff will not permit his office to be searched for any writ of execution which may have been delivered there, lest the purposes of the writ should be defeated by the party against whom it is issued absconding, or removing his goods. Therefore, although the judgment will not of itself bind the leasehold estate, yet the purchaser cannot safely complete his contract, where he discovers a judgment, because he cannot be satisfied that an execution issued upon it has not been lodged with the sheriff. When we consider how many valuable leasehold estates are daily brought into the market, we shall perhaps think that the legislature would do well to enact, that writs of execution intended to bind leasehold estates shall be docketed in like manner as judgments, and that where the estate lies in a register county, they shall be registered.

Where only an equity of redemption of a term is purchased, the purchaser will not be affected by even an execution lodged, of which he had not notice, for such an interest is not extendable under the statute of frauds, and certainly the mere delivery of the writ to the sheriff would not be implied notice to a purchaser.

(7) See Sir John de Moleyn's case, 30 E. 324, a.; 1 Ro. Abr. 892. pl. 14, 16; 42 E. 3. 11. a. ; 42 Ass. pl. 17; 2 H. 4. 8 b. pl. 42: 14, a. pl. 5; 2 Ro. Abr. 472. (P). pl. 3.; Shep. Prac. Couns.

305; Hickford v. Machin, Winch, 84. per Jones, J; and Brace v. Duchess of Marlborough, in 24 Resol. 2 P. Wms. 492.

(m) Vide post, ch. 16.

These

These observations respecting judgments must not be closed without observing, that if a person purchase part of an estate subject to a judgment, and the residue of the estate remain in the hands of the conusor, or descend to his heir, and execution is sued only against the original debtor or his heir, he shall not have contribution against the purchaser, and the consideration of the purchase is not material in these cases. But if execution be sued against the purchaser only, he shall have contribution against the persons seised of the residue of the estate, whether they acquired it by descent or purchase (n).

Sir Edward Coke observes (o), that when it is said, that if one purchaser be only extended for the whole debt, that he shall have contribution; it is not thereby intended that the others shall give or allow to him any thing by way of contribution; but it ought to be intended, that the party who is only extended for the whole, may, by audita querela, or scire facias, as the case requires, defeat the execution, and compel the conusor to sue execution of the whole land; so, in this manner, every one shall be contributary, hoc est, the land of every ter-tenant shall be equally extended. ·

II. To resume the consideration of the cases in which incumbrances should be searched for :-

If the estate lie in a register county (I), the register's office should be searched, for the purpose of ascertaining not only that the estate is free from incumbrances, but also, that the title deeds are duly registered;-the estate may be lost by neglecting to do so. And if it appear that any

(n) Sir William Herbert's case, 3 Co. 11 b.; see the distinctions taken in Blakeston v. Martyn, 1

Jo. 90.

(c) 3 Co. 14, b.

(I) For some observations on the registry acts, see infra, ch, 16.

2 D 3

decd

deed has not been duly registered, the vendor must procure it to be registered at his own expense, previously to the completion of the contract; although, indeed, it sometimes happens that an instrument not being registered, prevents an objection being made to the title. To give an instance of this, let us suppose a man to have mortgaged his estate, and paid off the money, but to have neglected to take a reconveyance. Now, in this case, if the mortgage was not registered, the purchaser need not insist upon its being registered, and require a reconveyance from the mortgagee, because, as the deed was not registered, the mortgagee did not acquire the legal estate, or, if he did, would cease to have it by the registry of the conveyance to the purchaser; and, being paid off, he has of course no equity. So, where a partial interest in an estate is devised to the heir at law, with a power of leasing, and he grant a lease not authorised by his power, the lease may, in some cases, be sustained both at law and in equity, in case the will was not registered ac cording to the act. This, however, is a mode of making a title to which necessity only should compel us to resort.

It is very seldom that wills are registered; but a purchaser from a devisce should not complete his contract till the will is duly registered; for should any person purchase of the heir at law bona fide, and without notice of the will, and register his conveyance before the registry of the will, he would be preferred to the purchaser from the devisee (p)

But if the vendor be both heir at law and devisee, the non-registry of the will is immaterial; for if he sell to any subsequent purchaser, it must be either in the character of heir at law, or in the character of devisee. If he sell in this character, the second purchaser must have notice of the will; if he contract in that, the first purchaser has already procured the legal estate.

So it seems clear, that if the vendor claim a leasehold

(p) See Jolland v. Stainbridge, 3 Ves. Jun. 478.

estate,

estate, either as executor or legatee, the purchaser need not insist upon the testator's will being registered, because no subsequent purchaser can procure a title without notice of the will; and it may be remarked, that letters of administration are never registered, and they seem to stand upon the same principle as wills of leasehold estates.

If a purchaser be already seised of the legal estate, as if he be mortgagee in fee, and has contracted for the equity of redemption, it is not actually necessary to search the register if he be assured that notice cannot be proved either ou himself, or on any one concerned for him; because the mere registration of deeds, as we shall hereafter see, is not notice to a purchaser seised of the legal estate previously to the purchase, and he will, therefore, be entitled to hold against any puisne incumbrance of which he had not notice.

Where the estate lies in the county of Middlesex, judgments need only be searched for at the register's office; as judgments bind estates in that county only from the time they are memorialized; but this is not the case in the county of York; for in the North Riding, any judgment registered within 20 days after the acknowledgment or signing of it, is available in the same manner as if it had been registered on the day it was acknowledged or signed (q); and in the East and West Ridings, and in Kingston upon Hull, 30 days are allowed for the registering of judgments (r). Therefore, where the estate lies in York, or Kingston upon Hull, recent judgments must be searched for in the proper courts.

It has already been observed, that judgments do not bind leasehold estates till delivery of a writ of execution to the sheriff. Writs of execution upon judgments intended to affect leasehold estates in a register county, were formerly never registered (s). From the present practice of regis

(9)8 Geo. II. c. 6. s. 33.

(r) 5 Apn, c. 18. s. 11; 6 Ann,

c. 35. s. 28.

(s) Vide infra, ch. 16.

2 D 4

tering

tering writs of execution, it may perhaps be concluded that they ought to be registered; but the registry of them seems casus omissus out of the statutes for registry; and therefore, upon the purchase of a leasehold estate in a register county, not only the register, but also the proper courts, should be searched.

The register ought to be searched immediately before the exccution of the conveyance, for the same reason that the search for judgments should be delayed till the last moment.

And lastly, since grants of annuities have become so prevalent, and can be searched for, it is the duty of the purchaser's solicitor to search for annuities. In a register county they need only be searched for at the register's office.

It may be useful to observe, that if a purchaser is damnified by his solicitor neglecting to search for incumbrances, it is clear that he may recover at law against the solicitor, for any loss occasioned by his negligence (t). But an attorney's negligence cannot, perhaps, in any case, be set up as a defence to an action by him for the business done, although it should seem that if there is a cross action by the client against the attorney, the court will, upon application, stay the execution in the action by the attorney pending the other (u).

So if the chief clerk, whose duty it is to enter up and docket judgments, neglect to do so, by which a purchaser, who has made the proper searches, sustains any loss, he, the purchaser, has a remedy against the clerk by an action on the case (x). And any person who is damnified by the neglect of the register of either of the registering counties, may bring an action against him, in which he will recover

(t) Brooks v. Day, 2 Dick. 572; Forshall. Coles, 7 Vin, Abr. 54, pl. 6. MS. ; and Appendix, No.19, Green v. Jackson, Peake's Ca. 236; see Baikie v. Chandless, 3

Camp. Ca. 17.

(u) Templer v. M'Lachlan, 2 New Rep. 136.

(x) Douglas Y. Yallop, 2 Burr.

722.

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