Page images
PDF
EPUB
[graphic]

1806.

to the priority of courts of law exercising a concurrent vjurisdiction 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 de. prived 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.

[graphic]

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 10,000l, each, convey's 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

1806

-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: 5. 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 con“ 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, " 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 conprized in the memorial of a deed which is registered.

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 Vol. I.

3 P

1806.

creditor will prevail against this deed, when any prior usregistered 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 1709", restates... t's w1 2154 . We therefore concur in opinion that the exception should

[ocr errors]
[ocr errors]

be over-ruled. 90 90s not sidstew208 é: 18" -2919 VE ro gnilsson03 sdt div sob son dgtodi pelin' asiero Isqioning sda 10 D.

sss 202iod? 43M

9713

Tuqoros IVOJ 982 -15ose 03 Juiyin , olway SOUNITWsi

-yi 10 309.071, 90rr.

"384 900 913 km 191to enly not molts!: !

1 bs!! r X 99128 od: 9 7,4o.fi'. 39.9

?!! :xGiŞito T.

ri: lo ali

[ocr errors][merged small]

A

office copy is not sufficient. Thougla

otherwise in case of a civil action.
ABATEMENT.

Semble, Keenan v. Boylan, • 232
See Lis Pendens, 1, 2.

AGENT.
ACCOUNT.

1. Agent to contract for the sale, &c. of

lands under the 2d sect. of the statute
I. The court will not open a settled ac- of frauds, need not be authorized in

count, where it has been signed, or a writing. Secus of agent to create or
security taken on the foot of it, unless pass an estate. Clinan v. Cooke, 22,
for fraud or errors, distinctly speci-

27, 31.
fied in the bill and supported by cvi. 2. Agent authorized to make agreements

dence. Drew v. Power, p. 182, 192. for leases for lives or years, makes an
2. Equity takes cognizance of matters, agreement in which the term of the

which, though cognizable at law, are proposed lease is not mentioned. This
involved in an account too complex to is an agreement not pursuant to his
be accurately taken on a trial at authority, and not binding on his prina
law,
309

33
Sce EQUITY, 3.

3. A principal is answerable for the act

of his agent in concealing or suppres-
ADMINISTRATOR.

sing of deeds, though not done with the

knowledge of the principal Bowler
See EXECUTOR and ADMINISTRATOR. v. Stewart, 209, 222.
ADMINISTRATOR pendente lite.

AGREEMENT.

cipal,

1. The nature of the authority conferred 1. Where nothing has been done in pur.

on an administrator pendente lite is suance of an agreement, the court
merely to collect the effects and to pay ought not to decree a specific per-
debts: he has no authority to pay lega- formance, except where the right to
cies; yet if he does pay them bona compel is mutual. Lawrenson v. But.
fide, he shall have credit for them, ler,

13
254 2. But if there was a concealment or ig.

norance of the facts on the one part,
AFFIDAVIT.

in consequence of which the other

party was led into a situation from
1. The original affidavit ought to be laid whence he could not be extricated, he

before the grand jury, in order to find would have a right to have the agree.
bills of indictment for perjury ; the ment executed cy pires, although the

right to compel were not mutual, 11. Bill praying execution of an agree-
si at DAR 18

18, 19. ment for a lease of lives, ought to
3. A. by public advertisement offers name the lives to be inserted. ÕHer-
> lands to be let for three lives or thirty- lihy v. Hedges,

123, 128.
sone years; and proposals having been 12. Agreement for an abatement of rent
made by B. and accepted, an agree- of lands ought to be signed pursuant to
ment is executed between B. and the the statute of frauds,

306
agent of A. authorized to contract for See INFANT, 1.
9 him for a lease of the lands, in which SPECIFIC EXECUTION, 1.
Sagreement the term for which the
lease is to be made is not mentioned.

ANNUITY.
I A. is not bound to perform this con-
Antract, there being no evidence in wri. 1. Annuity to a feme covert for her sole
orting of the term to be demised. Cli- and separate use, is not apportionable
Jonan v. Cooke,

tute

for the period between the day of her
4. Payment of money, although not death and the gule day preceding

Anderson v. Dwyer,

301
Part-performance to take an agree?
3 ment touching lands out of the sta-

APPEAL.

40
5. Nothing is part-performance in such 1. An appeal lies at the suit of tenant in

case that does not put the party into a tail in remainder, against a decree
1 situation that is a fraud upon him if affecting his rights, had against a prior

the agreement be not performed. 41 tenant in tail. And in case of abate-
6. Tenant for life with leasing power, ment such remainder-man, may, file a
scenters into an agreement by article, supplemental bill to make himself

to make a lease pursuant to the pow- party to the former suit, for the pur-
teers This agreement shall bind the pose of appealing. Giffard v. Hort,
remainder-man. Shannon v. Brad-

386, 412
52 ,

a be-
tween tenant for life and remainder-

APPORTIONMENT.
mangi arising from the subject matter
a of the contractul TD

64 See ANNUITY, 1.
8. Contracts for jointures, though made
s only in pursuance of a jointuring pow-

ARREST.
ater, shall bind the remainder-man ; so,
*2 contracts for valuable consideration to See BANKRUPT, 5, 6.
9 dexecute a power, or to make a charge
- of any description under a power: so,

ARTICLES.
e where there has been an imperfect
a9execution, but upon a meritorious con- 1. Articles are considered as heads or
* sideration, 90 91T PLER

60 minutes of an agreement; and in con-
98 Tenant for life with leasing power, struing them, the court is to consider
edenters into a parol agreement to make what is the contract which the parties
to please pursuant to his power, which intended to enter into.
seiso in part performed : whether this Taggart v. Taggart,

87
noshall bind the remainder-man, Qu ? 72 Campbell v. Sandys, 292
10. If an executory contract contains all 2. By articles, relating to leases pur
mithate leads to future certainty, it is auter vie and for years, and to money,
if ufficient': therefore an agreement for it was agreed that said leases for lives
* renty at a certain sum per acre, the and for years should be conveyed to
tonumber of acres not being expressed, trustees in trust (after successive life
he good, stalno

73 estates to D. C. and I. C.) after the

[graphic]
« PreviousContinue »