1806.

to the priority of courts of law exercising a concurrent jurisdiction with courts of equity in this particular: but has this doctrine been ever carried to the extent of affecting the conscience of a person who has gained a legal priority without fraud? Can a bona fide judgment creditor be deprived of a legal advantage which he has gained under the registry act, by reason of the ill conscience of a subsequent purchaser? Can a person be so deprived, who becomes assignee of such judgment, after the deed of such subsequent purchaser is registered, without notice of the fraud, when even according to the construction here contended for he must have been led to imagine that the registered deed had set up this judgment against all prior unregistered conveyances which may have existed? This would be to visit the sins of the guilty upon the innocent, and to punish one man for the crime of another: and therefore I conclude in this case, that the judgment creditor would prevail against the prior unregistered deed, and that he would not obtain this advantage for the sake of the registered deed, which would be postponed to both.

I will now put the other case, in which the registered deed shall prevail against the unregistered deed, and yet in which, according to the construction contended for, it shall be in substance defeated. Suppose a man being seized of the manor of Dale, and the manor of Sale worth 10,000/. each, conveys them by a deed which is not registered, and then confesses judgments to the amount in value of one of those estates: he then sells Dale, for valuable consideration, and the purchaser registers his deed. By this registry the judgments are set up as to Dale, and as to this manor they will prevail against the unregistered deed; but there being no registry as to Sale, the judgment creditors as to this manor will be postponed to the unregistered deed; they must therefore come on Dale only, which will be exhausted by their de

mands; and thus, though according to the primary object of the act, the registry ought to protect the purchaser, by this construction the unregistered deed, in effect, collaterally and indirectly defeats him.

The words of the act themselves, if transposed, reddendo singula singulis, without adding to, or omitting one of them will avoid this consequence. I read the fifth section thus: "And be it further enacted that every deed or conveyance "not registered, which shall be made and executed, from "and after the 25th day of March, 1708, of all or any of "the honors, manors, &c. contained in such deed or con66 veyance, a memorial, whereof shall be registered, shall be "deemed and adjudged as fraudulent and void, not only "against such deed or conveyance registered as aforesaid, 66 as for and concerning all or any of the honors, manors, "&c. contained in such memorial, &c. but likewise against "all and every creditors by judgment, recognizance," &c. This reading transposes the words "as for and concerning "all or any of the honors, manors, &c. contained in such "memoral:" but by reading them as they stand in the act after" all and every creditor and creditors by judgment, &c. we fall into the difficulty which I put in the last case. That was an extreme case, and put only by way of illustration and example: but in various ways the same inconvenience will be found to result, though in different degrees, from confining the priority which a judgment creditor has got over an unregistered deed, merely to the lands comprized in the memorial of a deed which is registered.

99

It may be worth observing here, that the deed of 1747 is registered, and that the lands which are sought to be affected by this proceeding, are mentioned in the memorial of it; and perhaps it may be inferred from the defendant's argument, without pushing it too far, that the judgment

1806

creditor will prevail against this deed, when any prior unregistered deed shall be found to contend with it; and that in the mean time the right of the judgment creditor may rest in abeyance.

Abstracted, however, from any reasoning upon the act itself, I think the uniform construction of courts of law and equity in this country for so long a period, so far as we have been able to collect it, ought to be sufficient to influence this court to the opinion which it is about to pronounce more especially when we reflect that upon the faith of that construction, judgments have become, for near a century, common securities to those who lend money; and that mortgages, comparatively speaking, have been seldom resorted to. A judgment it is true, strictly speaking, is no lien upon the land; but it is an incumbrance hovering over it; and we have always considered that an unregistered deed, executed by the conusor of the judgment, cannot intervene and prevent it from settling on his real

to vero to We therefore concur in opinion that the exception should

right to compel were not mutual, 11. Bill praying execution of an agree-

18, 19.

3. A. by public advertisement offers
lands to be let for three lives or thirty-
one years; and proposals having been
made by B. and accepted, an agree-
ment is executed between B. and the
agent of A. authorized to contract for
him for a lease of the lands, in which
agreement the term for which the
- lease is to be made is not mentioned.
A is not bound to perform this con-
tract, there being no evidence in wri-
ting of the term to be demised. Cli
nan v. Cooke,

23

street,

ment for a lease of lives, ought to
name the lives to be inserted. O'Her-
lihy v. Hedges,
- 123, 128.
12. Agreement for an abatement of rent
of lands ought to be signed pursuant to
the statute of frauds,

See INFANT, 1.

SPECIFIC EXECUTION, 1.

ÁNNUITY.

306

An appeal lies at the suit of tenant in
tail in remainder, against a decree
affecting his rights, had against a prior
tenant in tail. And in case of abate-
ment such remainder-man may file a
supplemental bill to make himself
party to the former suit, for the pur-
pose of appealing. Giffard v. Hort,
386, 412.
52 See DECREE, 3, 4.

APPORTIONMENT.

64 See ANNUITY, 1.

ARREST.

7. In such case, there is a privity bc-
tween tenant for life and remainder-
·many arising from the subject matter
of the contract.
9. Contracts for jointures, though made
only in pursuance of a jointuring pow-
3er, shall bind the remainder-man; so,
→ contracts for valuable consideration to See BANKRUPT, 5, 6.
• execute a power, or to make a charge
of any description under a power: 50,
where there has been an imperfect
«^execution, but upon a meritorious con-
sgeration,
60

91 Tenant for life with leasing power,
enters into a parol agreement to make
to please pursuant to his power, which
kis in part performed: whether this
shall bind the remainder-man, Qu? 72
10. If an executory contract contains all
that leads to future certainty, it is
-sufficient: therefore an agreement for
renty at a certain sum per acre, the
Te number of acres not being expressed,
is good,

73

ARTICLES.

1. Articles are considered as heads cr
minutes of an agreement; and in con-
struing them, the court is to consider
what is the contract which the parties
intended to enter into.
Taggart v. Taggart,
Campbell v. Sundys,

2.

87

292

By articles, relating to leases pur
auter vie and for years, and to money,
it was agreed that said leases for lives
and for years should be conveyed to
trustees in trust (after successive life
estates to D. C. and J. C.)" after the

a