make his decree (in opposition to his own opinion), because much property had been settled, and conveyances had proceeded on the ground of the determination in Bedford v. Backhouse (k). A thousand neglects, he said, had been occasioned by that determination, and therefore he could not take upon himself to alter it. He added, that if it was a new case, he should have had his doubts; but the point was closed by that determination, which had been acquiesced in ever since.

Now, Lord Camden's decision can only be considered an authority, so far as it is authorised by the case upon which he professed to ground his opinion: and it seems clear, that the case of Bedford v. Backhouse, was not an authority in point; and that the case before him was, in every respect, a new question.

In the case of Bedford v. Backhouse, by the known and settled rule of equity, the first mortgagee was entitled to hold against the second mortgagee, unless he had notice; and as the second mortgagee had it in his power to give such notice, and neglected doing so, the decision seems perfectly proper. But in the case before Lord Camden, the prior incumbrancer had no means whatever to acquaint the purchaser with the incumbrance, while he himself had it in his power to ascertain whether the estate was incumbered.— Where the neglect is the purchaser's, who else should bear the loss occasioned by that neglect? Besides, it seems clear that no person, not being seised of the legal estate, could ever have been induced to neglect searching the register on the authority of any of the cases on this subject, much less on that of Bedford v. Backhouse, which could not, one should think, be so misconstrued as to sanction or lead to such a neglect.

Since these observations were published, Lord Redesdale's

decisions in Ireland have appeared. There are two cases in which the point in question was discussed, although it was not necessary to decide it; but Lord Redesdale expressed his opinion to be, that the registry of an equitable incumbrance was not notice to any subsequent purchaser. His Lordship admitted, that if a man searches the register, he will be deemed to have notice, and that no person thinks of purchasing an estate without searching the registry; but he thought it could not be considered as notice to all intents, on account of the mischiefs that would arise from such a decision. For if it is taken as constructive notice, it must be taken as notice of every thing that is contained in the memorial: if the memorial contains a recital of another instrument, it is notice of that instrument; if a fact, it is notice of that fact (l). So, if it be notice, it must be notice whether the deed be duly registered or not; it may be unduly registered, and if it be so, the act does not give it a preference; and thus this construction would avoid all the provisions in the act for complying with its requi sites (m).

Now, although one cannot but feel the weight of any observations of Lord Redesdale's on a point of this nature, yet these do not appear to be conclusive. The distinction endeavoured to be established in the text between the cases where the purchaser has, and where he has not the legal estate at the time of his purchase, was not discussed. Indeed, it was unnecessary to discuss it with reference to the registering act for Ireland. Lord Redesdale's opinion, therefore, was wholly extra-judicial. There can scarcely be any objection to the registry of a deed 'being deemed notice of

(7) Bushell v. Bushell, 1 Scho. and Lef. 103; and see Pentland v. Stokes, 2 Ball and Beatty, 68. (m) Latouche v. Lord Dunsany,

1 Scho, and Lef. 157; and see Underwood v. Lord Courtown, ? Scho, and Lef. 64.

all

all its contents, when a purchaser can require the production of the deed before he completes the contract. Certainly there appears to be great weight in the objection, that if the registry be of itself notice, it must be notice, although the deed be unduly registered. But this objection assumes what has never been decided; and it should seem that the courts might hold, without any violation of principle, that a purchaser should not be deemed to have notice of an equitable incumbrance by the mere registry of it, unless it was duly registered. Why should equity interfere in favour of an incumbrancer, when he has not complied with the salutary requisitions of that very act upon which he lays his foundation for relief? The reader is reminded, that these observations are addressed to the case of a purchaser not having the legal estate at the time of his contract. And it is hardly necessary to say, that whatever private opinion may be entertained on this point, no one can be advised to rely on an equitable charge on an estate in a register county, although it is duly registered, and there is no prior incumbrance on the register.

The third and last question is, whether a person buying an estate with notice of a prior incumbrance not registered, shall in equity be bound by such incumbrance, although he hath at law obtained a priority by registering his deeds? And it hath been holden that he shall (n).

(n)Lord Forbes v.Nelson, 2 Bro. P.C. 425.2 Eq. Ca. Abr. 482,pl. 19; 3 Atk. 653, cited; Chivall v. Nicholls, Str. 664; Beatniff v. Smith, 1 Eq. Ca. Abr. 357, pl. 11; Blades v. Blades, 1 Eq.Ca. Abr. 358, pl. 12; Iline v. Dodd, 2 Atk. 275; Le Neve v. Le Neve, 3 Atk, 6-46;

Sheldon v. Cox, Ambl. 624; and Jolland v. Stainbridge,3 Ves. Jun. 478; and see Cowp. 712; 1 Burr. 474; 1 Schoales and Lefroy's Rep. 102; Biddulph v. St. John, 2 Scho, and Lef. 521; Eyre v. Dolphin, 2 Ball and Beat. 290.

OR 2

This

This decision is perfectly consonant to the general princi ples of equity. The intention of the act was to secure subsequent purchasers and mortgagees against prior secret conveyances and fraudulent incumbrances; and, therefore, where a person has notice of a prior conveyance, it is not a secret conveyance by which he can be prejudiced; for he can be in no danger where he knows of another incumbrance; because he might then have stopped his hand from proceeding, and therefore is not a person whom the statutes meant to relieve (0).

It will occur to the learned reader, that although the prior purchaser would, in a case of this nature, be relieved against the subsequent sale, yet the legal estate will be vested in the subsequent purchaser by force of the statute.

From the foregoing decisions, it is evident that a purchaser may be bound by a deed, although not registered; but it is equally clear, that it must be satisfactorily proved, that the person who registers the subsequent deed must have known exactly the situation of the persons having the prior deed; and knowing that registered, in order to defraud them of that title he knew at the time was in them (p). Apparent fraud, or clear and undoubted notice, would be a proper ground of relief; but suspicion of notice, though a strong suspicion, is not sufficient to justify the court in breaking in upon an act of parliament (2).

I have now brought to a conclusion the observations which I proposed to offer on the registering acts. If I might be allowed to express a general opinion on the provisions in these acts, explained as they are by the decided cases, I should be tempted to observe that they might be improved. I approve rather of the act for Ireland, though not to the extent to which it has been carried by the deci

(0) Le Neve v. Le Neve, 3 Atk. 646.

(p) See 3 Ves. Jun. 485,

(q) See 2 Atk. 276; and Irons v. Kidwel, 1 Ves. 69, cited.

sions of Lord Redesdale. I would by no means give an equitable charge the effect of a legal conveyance by the mere act of registry; at the same time that I would insure the priority of the charge as an equitable charge, by making the registry of an instrument notice to all subsequent purchasers. The rule, that notice of an unregistered incumbrance shall affect the conscience of a subsequent purchaser, I would not disturb, contemplating the present temper of the courts, to confine this doctrine to cases of clear notice.

SECTION VI.

Of Protection from Acts of Papistry.

By the 11 and 12 W. III. c. 4, it was enacted, that papists who should not, within six months after attaining eighteen, take the oaths and subscribe the declaration therein mentioned, should, but as to himself or herself only, be incapable to take by descent, devise, or limitation; and the estate should be enjoyed by the next of kin, being a protestant, during the life, or until the conformity of such papist. And by this act papists were rendered incapable of purchasing lands either in their own names, or in the names of trustees; and all estates made to them were declared to be utterly void and of none effect, to all intents, constructions, and purposes whatsoever.

To remedy the inconveniences arising from this provision, it was by a modern statute (r) enacted, that no sale for a

(r) 3 Geo. I. c. 18; see 29 Geo. III. c. 86, s. 4.