that it avoided only prior charges not registered, but did not give subsequent conveyances any further force against prior ones registered than they had before: and that though Wrightson might have searched the registry, he was not bound to do so. The ground on which that case was decided, I take it, was, that Wrightson had the legal estate conveyed to him, to which he might tack a subsequent incumbrance without notice. That raises a question on the distinction between the English and the Irish acts, which I think would make that decision wrong in this country, though it must be taken to be right in England (though Lord CAMDEN seems to have doubted that): but Sir J. JEKYLL's opinion, that the act did not create constructive ' notice by the registry,' appears to be sound; I know of nothing that compels aman to search the registry more than to search the records of a court of any description. The next case was Bedford v. Bacchus, cited in Amb. 680, which is in conformity with Sir J. JEKYLL's decision. The next was Hine v. Dodd, in 1741, 2 Atk. 275; a bill filed by a judgment creditor against a mortgagee, alleging notice of the judgment before the mortgage was executed; and Lord HARDWICKE dismissed the bill on the ground that there was not sufficient evidence of notice. This was followed by Le Neve v. Le Neve, in 1747, 3 Atk. 646; Amb. 436. and 1 Ves. 64: there Lord HARDWICKE went through all the cases, and considered Lord Forbes v. Deniston as the foundation of them all. Then came Sheldon v. Cox, Amb. 624. and Morecock v. Dickins, Amb. 678. The effect of all these decisions is, that the registry cannot be considered as notice, with all the consequences that would attach upon it as notice; and if it were so considered, it would lead to very mischievous consequences. But I think the words of the Irish act explain the difference that has arisen: the third clause provides that a deed which in any way affects lands 1803. BUSHELL υ. BUSHELL. shall be taken as good in law and equity according to the priority of time of registering. Thus it is expressly enacted that whatever be the nature of the instrument priority in the time of registering shall give it priority of operation both at law and equity. This controuls courts of equity: they cannot say that the prior legal deed shall draw to it the subsequent unregistered instrument, to the prejudice of the intermediate registered instrument. But then the act does not warrant any fraud; it is made in favour of bonâ fide purchasers; and therefore if a person purchases the estate of another with notice that he has made a lease which is not registered, he acts fraudulently in enabling himself to set aside a lease which the maker of it could not have set aside. That was the case of Lord Forbes v. Deniston, and the case on the Yorkshire registry before Lord KING. Therefore I' do not think it necessary for the sake of supporting any thing which I have heard of as having been held in this country, to consider the registry as notice. I think it is not notice, but it has the effect of giving priority except in case of fraud (as, where the party has had notice aliunde) and that is a priority which a court of equity or of law cannot take away. On the whole of this case, therefore, I have no sort of doubt of the true construction of this act. The instrument registered must prevail against a subsequently registered instrument, by force of the clause in the 4th sect. that being an instrument which affects lands it shall be good not only at law but in equity according to the priority of registry. This is not at all grounded on the next section of the act, which avoids unregistered conveyances: that is a provision of a totally different description. The meaning of the former clause I take it, is to give full effect by force of the registry even to articles, if registered, against a legal conveyance: so that the act has given to contracts registered a force and effect with respect to lands themselves, which they have not in England, there being no such clause in the English registry act; this I take to be the true meaning of the act, as far as I can collect; and it will answer all the purposes of every decision on the subject. 1803. BUSHELL V. BUSHELL. tice to all in tents. It is true, the registry is considered as notice to a certain extent; no person thinks of purchasing an estate without searching the registry, and if he searches he has notice; but I think it cannot be considered as notice to all intents, on Mischievous to account of the mischiefs that would rise from such a deci- consider the sion. For if it is to be taken as constructive notice, it must registry as nobe 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. It strikes me to be a better and safer way of considering it, to let the words of the act operate by their own force and that the registry shall not be taken as notice more here than it is in England, or in the colonies, where it has been uniformly held that even enrolments are not considered as notice. In consequence, I must hold that the plaintiffs in this case are entitled to have the benefit of these articles, so far as they are not affected by their own acts, and none of these six plaintiffs have done any act which can affect them. It might have been a material question, how far back the account of rents and profits should be directed. The estate was in truth the estate of the children ever since 1778; but it' is stated at the bar to be useless to direct an account prior to the death of Edward, he having died insolvent. 1803. BUSHELL υ. BUSHELL. 66 66 66 Reg. Lib. xlviii. 471. The plaintiffs electing to take against the will of Edward Bushell deceased their late father, and disclaiming all interest under the same, declare "that they are entitled to have a specific performance of the "agreement mentioned in the settlement of the 16th Jan. "1755, in the pleadings mentioned, and to have the lands "of Ballyvaughan in the pleadings mentioned conveyed "to the uses expressed in such settlement, and the other six "children of the said Edward Bushell having elected to take "under his will, declare that one moiety of the said lands 66 ought to be considered as the estate of Edward Bushell the younger deceased, the eldest son of the said Edward Bush"ell, and the other moiety ought to be divided between the "said plaintiffs in equal shares, but that the whole thereof is "subject to the annuity of 30l. a year, provided by the said "settlement, for defendant Elizabeth Bushell their mother, "and to the rent and renewal fines reserved by the original "lease of the day of, in the pleadings men❝tioned. And plaintiffs waiving any account of the 66 rents and profits of said lands prior to the death of their "late brother the said Edward Bushell the elder deceased, "referit to the master to take an account of the rents and pro"fits of said lands from the time of the death of said Edward "Bushell to the time of the receiver being appointed in the 66 cause of Lilly v. Bushell now depending in this court; and "let the master inquire and report by whom such rents and "profits have been from time to time received during said period, and let the master also take an account of the 46 66 sums received by the said receiver since his appointment, "and let the plaintiffs be at liberty to apply to the court in "the cause of Lilly v. Bushell, that the receiver may account "for such rents before the master in this cause, and let the "twelfth part of the clear rents and profits after paying the "said annuity of 30%. the rents reserved by the original "lease, renewal fines and all other reasonable allowances be "carried to the account of each of the plaintiffs, and let the "master take an account of all sums of money which since "the death of their said late brother Edward Bushell have "been received by the respective plaintiffs, or with which they shall respectively appear to be chargeable on account "of their demands against the said estates, and let all such "sums be set against the respective shares of the plaintiffs of "said rents and profits, and let the master state balances; and "let the master also inquire whether any and what sums "have been from time to time advanced by the defendants for the maintenance and education of the respective plain"tiffs: and let there be a partition of said lands, and let a "commission issue in the usual manner, and one twelfth part "be allowed to each of the plaintiffs, and six twelfth parts ་་ or one moiety to the person claiming under the said Ed"ward Bushell the son, subject to the said annuity of 30%. "rents and renewal fines; and let the master inquire and report in whom the legal estate in said lands is now vested, " and let it be referred to the master to approve proper 66 person to be appointed a trustee of the legal estate for the "benefit of all parties interested therein, and let the person "in whom such legal estate shall appear vested, convey the 66 same to such person as the master shall appoint, in trust "for the several parties entitled as aforesaid." of a 1803. BUSHELL v. BUSHELL. |