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WHILE the last of the foregoing sheets was at press, a case
was decided by the court of Exchequer, materially affecta ing the doctrine in Lord Dunsany v. Latouche, (Vide, ante, 137, 160) respecting the effect of the registry act as to judgment creditors: We think it will be acceptable to the profession to be apprised of the decision of the court on that point.
June 23d, 1806. 12..
D'ARCY, EXECUTOR OF MARSHALL, V. HEIR
AND TER-TENANTS OF CHAMBERS.
EDWARD CHAMBERS was seized for life, with remainder to his eldest son John in tail; and in Michaelmas term, 1741, Edward and John suffered a recovery. On the 18th December, 1747, a deed was executed, declaring the uses to Edward for life, remainder to John for life, with remainder to the first and other sons of John: This was not registered until 1786.
Edward, the tenant for life died, and in 1780, John Chambers confessed a judgment to plaintiff's testator: John having died, a scire facias to revive the judgment was sued forth against the heir and ter-tenants, to which the defendants pleaded non-seizen; and upon the trial offered in evidence, the deed of 18th December, 1747; which deed, the learned judge was of opinion, should be considered as fraudulent and void against plaintiff's demand; he being a creditor by judgment entered previous to the registry of said deed.
1. To this opinion an exception was taken, which came on to be argued in the court of Exchequer.(a)?
O’GRADY, chief baron, pronounced the judgment of the court, which as to this point, was in substance as follows:
The question is whether the judgment of 1780 shall, by virtue of the 6th Ann. chap. 2, commonly called the registry act, prevail against the deed of 18th December 1747, which was not registered till 1786; long subsequent to the judgment under which the plaintiff derives.
The argument in this case, in support of the exception, has been very ingenious, but has been in substance taken, as: most probably was the exception, from the argument in Lord Dunsany v. Latouche, and the observations of the court in that case. I do not suppose there is a judge on the bench who would feel greater difficulty in dissenting from lord REDESDALE than I should: but even were the case referred to a decision of his lordship upon that point, I should be somewhat relieved by reflecting that the statute was new to him; and that it was his construction of a clause not to be found in any of the registry acts in England. But when I consider that the question there was not such as occurs at present, but merely, whether the defendant had a right to avail himself of the doctrine of tacking; while I subscribe most fully to what Lord REDESDALE decided on the question before him, I cannot subscribe to his observation on this part of the registry act; which I can consider only as a dictum not necessary in the case, and merely an assent to anargument of counsel, and which perhaps was more readily
(a) By statute 28th Geo. 3, c. 31. -Bills of exception may be examined and determined on by the court out of which the record issued.
adopted, because the proposition intended to be established by it, namely, that there could be no tacking, was unquestionably true. In that case there were several deeds, registered, and unregistered; therefore on the point now before us there was no necessity to decide: so far as it was necessary for his lordship in that case to decide upon the registry act, his decision was accurate and just.
According to the argument in that case, a judgment creditor has no protection under the registry act, unless his judgment intervenes between two conflicting deeds : and it is said that he is then protected, not from any favour shewn to himself, but for the sake of the registered deed, and to avoid a confusion and absurdity, which the new system, established by the registry act, might otherwise produce. This construction is adopted by the court in these words :(a) « The act is not intended to apply to judgments generally, " but to the difficulty which would arise from the preceding “ clause, that clause having postponed the subsequently regis“tered deed, and the law not postponing judgments in the
same way. The legislature has in that particular case given
a preference to judgments, which it would not otherwise “have done, in order to put them in their proper situation " with respect to the subsequent deed. The effect of the “ clause so construed is to give such judgment creditors not “only the priority whichthey would before have had against “the registered deed, but a priority against the unregistered “ deed, which they had not before, and that for the sake of the “ registered deed." I confess this construction, which it was not necessary for the court in that case critically to examine or decide upon, at first sight seems favoured by the words of the statute, taken in the order in which they stand. But can there be any sound reason, in point of substantial justice,
(a) Ante, 160.
to say that the legislature meant to give precedence to a registered deed, and yet not to judgments, which are prior to it, on the ground of their own priority, but as deriving efficacy from an instrument to which they are paramount and with which they are wholly unconnected? This makes the validity of a judgment depend on matter ex post facto, and not on the state of things when the judgment was entered; as for example: If there be an unregistered deed and then a judgment, the judgment will in the first in stance be postponed to the deed; yet, if the grantor exeeutes another deed, and that deed be registered, the judgment shall prevail against the unregistered deed, not by its own force, but by deriving strength from that which it is confessed is weaker than itself. Again; it may put it in the power of a man to decide upon the rights of those who claim under him for valuable consideration, and from a fraudulent motive to prefer one to the other at his election : for instance, if there be a settlement which is not registered, and the settler confesses judgments to the amount in value of the estate ; according to the construction contended for, the settlement would prevail against these judgments; but let him execute a mortgage which is registered, 'to the youngest of these judgment creditors, and then the unregistered settlement is put out of the way as to all the judgments. I do not therefore feel that we are called upon to adopt the distinction which has been taken, upon any abstract principles of reason or justice, or from any thing to be collected from the spirit or object of the act. And let us now examine whether in every case the words of it will be sufficient to maintain this distinction. It must be recollected that it is founded on the precise situation of a judge ment standing mesne between a registered and unregistered deed; but in the statute there is no such distinction. The words of the act are," shall be deemed and adjudged as
" fraudulent and void, not only against such registered deed,
I will put two cases of contending deeds zin one the unregistered deed shall be defeated; in the other it shall ap. parently prevail; and yet see whether the consequences of the principle contended for will follow. Supposé an unde gistered deed, then judgments, and then a registered deed: it is admitted that by virtue of this deed the judgments gain a priority to the unregistered deed; now, suppose the person deriving under the registered deed had previous notice of the unregistered deed; by this, inasmuch as the conscience of the party is affected, the subsequent registered deed is postponed, and the unregistered deed prevails against it. This has been the uniform rule of courts of equity, and has been frequently adopted even at law. I shall not now intimate any opinion which I may at present entertain as