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1803.

duced by the registry, but how far notice of an existing incumbrance will affect, notwithstanding a registry.

BUSIELL

V. BUSHELL.

There is a material difference between the registry act in Ireland, and those in England. By the Irish act(a) it is enacted, (sect. 3) " That a memorial of all deeds and

conveyances which shall be made and executed, and of “ all wills and devises in writing, whereby any honors, ma

nors, lands, tenements or hereditaments within this king“ dom may be any ways affected, may, at the election of “ the party or parties concerned, be registered,” in such manner as therein directed. And the 4th section enacts “ That every such deed or conveyance, a memorial whereof “shall be duly registered according to the rules and direcstions in this act prescribed, shall be deemed and taken as “good and effectual both in law and equity according to the priority of time of registering such memorial for and “concerning the honors, &c. in such deed or conveyance men“tioned or contained according to the right title and inte“ rest of the person or persons so conveying such honors, &c, " against all and every other deed conveyance or disposition “ of the honors, &c. or any part thereof, comprised or con“tained in any such memorial as aforesaid:"—Now, this clause is not in the English acts. The fifth section of the Irish act resembles the provisions in the English act,“ That

every deed or conveyance not registered, of any land, &c. "contained in a registered deed, shall be deemed and adjudg“ ed as fraudulent and void as against such registered deed or

conveyance.” This difference in these acts seems to me to have been what has produced the difference in the decisions upon them; and that difference does not consist in the registry here being notice, but in the priority which the statute here gives to the prior registered deed. That part of the

(«) 6 Ann. C. 2.

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act which makes a deed not registered fraudulent and void against a registered deed, has received the same construction in both countries: the question whether a registered deed was to have priority of another registered deed, according to the priority of registry, and how far this priority was to extend, has received a different determination in England and in Ireland, and that difference is founded on the words of the Irish act.

The first case which I have found is a case on the Ițish act, Lord Forbes v. Deniston, 2 Bro. P. C. 425, and which is very much commented upon by Lord HARDWICKE’iņ Le Neve v, Le Neve, 3 Atk. 644, and Ambl. 436. In that case, Lord Granard, father of the appellant, granted a lease for three lives, which was not registered: he afterwards entered into an agreement with his son by the agency of a Mr. Stewart, and conveyed his estates to trustees for the appellant. Stewart had full notice of the lease, and it was unquestionably binding as against Lord Granard. The conveyance to the trustees was registered. The trustees brought an ejectment against the lessee, and on a bill filed by the lessee, the Lord Chancellor awarded a perpetual injunction. Lord Forbes appealed to the House of Lords, founding himself on the construction of the registry act in Ireland, and insisted that he had a priority on account of his registry. The House of Lords thought the decree right as against Lord Granard, and against Lord Forbes so far as he derived under Lord Granard, but wrong as against Lord Forbes so far as it affected his remainder in tail, because the lease was not good under the power.

The House of Lords therefore varied the Lord Chancellor's order by restraining the proceedings to impeach the lease only during the life of Lord Granurd. This appears to have been an extremely well considered case, both by the Chancellor here,

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and by the House of Lords. The House of Lords determined that the words of the act which made an unregistered deed fraudulent and void against a subsequent registered deed, had not that effect, if there was notice of the prior deed. If a man has notice, he cannot say he is defrauded ; it is fraudulent in him to take a conveyance to defeat the charge of another. Lord HardwICKE, I observe, considers this as the leading case on the subject.

This case was followed by that of Chevall v. Nicolls, in the Exchequer in England before Chief Baron GILBERT, in .1725;(2 Eq. Abr.64, 1 Str. 664) that was a case where it was held, in conformity to the case of Lord Forbes and Deniston, that a person having notice of a prior incumbrance, could not impeach it for want of registry. Then came the case of Beatniffe v. Smith, in 1727, (1 Eq. Abr. 357): that case perhaps does not fully decide the question, as it went upon the fraud on the part of the plaintiffs in concealing the articles: this arose on the Middlesex registry. Then came the case of Blades v. Blades in 1 Eq. Abr. 358, on the Yorkshire registry ; and there Lord KinG decreed against the words of the act, on the ground that the party had notice of the first purchase, and that the purchasing the estate and getting his own deed registered first was a fraudulent act: this also is in conformity to Lord Forbes and Deniston, and is a much stronger case.

The next case was one of a different description; a case not warranted by the terms of the registry act in this country though considered as warranted by those in England. Wrightson v. Hudson, 2 Eq, Abr. 609, which was decided by Sir Joseph Jekyll, a man who took great pains, and was very anxious to do right: he determined that the Yorkshire act did not create constructive notice by the registry;

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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

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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 ; itis made in favour of bona 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 :

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