1803. LATOUCHE v. Ld. DUNSA NY. V. LATOUCHE. to say, proper memorials upon the registry. The provisions of the act seem intended to enable a person dealing with an estate "all instruments that can have effect against me are brought on the registry, and none which are not there Ld.DUNSANY" can be brought against me." This necessarily excludes tacking; for that is giving effect to an instrument which a person is not enabled by means of the registry to discover; and I think the manner in which the act is framed shews that such was the idea of the legislature. First of all; it is recited in the preamble to be an act for securing purchasers ; it is true, it is also "for preventing forgeries and fraudulent "gifts and conveyances," but the primary purpose is the security of purshasers; and we must therefore suppose that the clauses proposed to be enacted were intended to have the fullest effect which the preamble purports. The act next declares (sect. 3.) what instruments are to be registered-all deeds and all conveyances, whether actual legal conveyances or not, whereby any lands, &c. in this kingdom may be affected, are within the view of the legislature. I think therefore it must be understood from that clause to have been the intention of the legislature that in whatever manner lands could be affected by any instrument, that instrument should be brought on the registry to give it effect against a subsequent deed which has been duly registered. The fourth clause then enacts," that every such deed or conveyance, a memorial whereof shall be duly registered "according to the rules and directions there prescribed "shall from and after the said 25th day of March 1708, 66 (to which day the former clause confined itself) be deemed " and taken as good and effectual both in law and equity "according to the priority of time of registering such me"morial for and concerning the honors manors lands, &c. "in such a deed or conveyance mentioned or contained ac"cording to the right title and interest of the person so con "veying such honors, &c. against all and every other deed conveyance 66 would have 1803. v. Ld.DUNSA. v. words in regis. "of the person "so convey. ing." conveyance or disposition of the honors, &c. comprised or LATOUCHE "contained in any such memorial as aforesaid." Now the act did not mean by the words according to the right title and interest of the person so conveying, only to pass the estate Ld. DUNSÁNY as it might already be affected by an unregistered instru- LATOUCHE. ment as against the person conveying: that would have set Construction of the whole act open: it must be understood to mean, ac "cording to the right title and interest which such person "had to make a conveyance, which "been good if such prior conveyance had not existed." The prior words must be taken therefore as giving priority both at law and in equity to any deed registered by which lands comprised in a deed not registered can be any way affected: the words are large enough to embrace the case of lands affected in equity as well as at law, even if the subsequent words did not shew that to be the intention of the legislature: the intention was to make priority of registry the criterion of title to all intents and purposes whatsoever. But this does not exclude any thing which affects the conscience of the party himself who claims under the registered deed: it never was the intention of the legislature to give a priority of right to commit a fraud; but its meaning was that, parties dealing fairly, priority shall be given to him who had the registered instrument, and that in equity as well as at law; and that must be considered as taking away the right of tacking because it gives priority against the subsequently registered deed, and declares that as against land the latter shall be postponed. A court of equity cannot say that by a medium not affecting the conscience of the party having such prior registered deed, it shall be defeated; and it having been always considered in this court that there could not be such tacking, it must be taken that this was the construction always put upon the act, and a construction 1803. LATOUCHE v. NY. V. LATOUCHE. Difference be. tween the registry acts in England and that in Ireland. which has prevailed here for so many years cannot be deemed an erroneous construction, though no judicial determination precisely on the subject has been mentioned. I think Ld. DUNSA therefore the effect of this act is to prevent that sort of tackLd.DUNSANY ing which may take place in England with respect to deeds of the same description. The two countries have adopted a different policy, and even in the register counties in England the register acts have a limitation in respect of the time within which the deed must be registered, and if not registered within that time, it is as nothing; there are no words giving it priority according to the registry in the manner of the Irish act; but if the deed be registered in due time it has its priority according and by relation to its date. Here, the meaning of the act unquestionably is that a deed shall have effect only from the time of its registry, leaving the operation of the deed as it was before, except as to registered deeds, and so far as the fifth section qualifies it. Upon the fifth section, I think the construction put by The 5th sect.of Mr. Plunket is the true construction; that it is not intended the registry act to apply to judgments generally, but to the difficulty which applies not to judgments would arise from the preceding clause, that clause having generally. postponed the subsequently registered 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. Then every thing will be in the order prescribed by the clause, that is, " every deed not registered, of any lands, &c. “contained in a deed which shall be registered, shall be "deemed and adjudged fraudulent and void, not only against "such registered deed, but against every creditor by judgment, recognizance, statute merchant, or staple, concern"ing any of the lands contained in the memorial of such 66 1803. V. Ld. DUNSA "registered deed." The effect of the clause so construed is to give such judgment creditors not only the priority LATOUCHE which they 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; for the several incumbrances could not otherwise be arranged for the benefit of the registered deed. The only remaining part of the case important to consider is, with respect to Chamley, and I apprehend that I ought to consider him in this situation : he was unquestionably the person confidentially employed as solicitor by Warren; in that situation there were dealings between them, and he was conveyed to Messrs. Latouche incumbrances affecting Warren's estate. The other creditors insist that these incumbrances ought not to be taken as affecting the estate in the hands of Latouche to the extent to which they are made to affect it: as to one of them, Savage's judgment, it is clear that it was a satisfied judgment or nearly so, and was in the hands of Chamley as trustee for Warren, and it was an item charged in the account between Chamley and Warren. But when I look into the dealing between Chamley and Warren, I have great difficulty in saying that I can with propriety make a decree which shall have the effect of making this large charge on the estate to the prejudice of other creditors, without having an account from Chamley. Chamley has, it is true, brought Warren to execute a deed by which these are stated as existing incumbrances; but with respect to one, it is manifestly not so; and with respect to another it is clear that the deed was not a fair deed as to it, for it purports to assign a debt, not as a debt due from Palles but as an original debt due from Warren, and the effect of this was that Warren was made chargeable for the debt due on that judgment, and had no right to call on NY. Ld. DUNSANY Judgment creditors have no priority by the registry act, except where priority between deeds is to be ad justed. 1803. LATOUCHE V. Ld. DUNSA NY Ld. DUNSANY V. LATOUCHE. Palles's estate to indemnify him. It is evident that this was not clearly understood by Warren, for from conversations which Chamley had with him it appears that Warren considered this as a demand in some manner for his benefit, and how that was arranged between Warren and Chamley it is now difficult to discover. It is manifest however, that Chamley during a course of years was in the receipt of large sums of money for Warren, and he now represents himself as having accounted with Warren for sums of money which he so received, and has examined witnesses to the payment of sums of money to the extent of 800%.; his having proved no more affords a strong ground of inference that no more could be proved: but one must see that there are rents of this estate not accounted for by Messrs. Latouche, and which they insist they are not accountable for, and which probably came into the hands of Chamley. Warren is made to sign a receipt for 370l. for an arrear of rent due to him; it is evident that he did not receive that rent; the evidence on behalf of Chamley excludes that supposition. As to Savage's judgment, Messrs. Latouche must be deemed to have notice that it was satisfied or nearly satisfied at the time of the assignment to them. I do not mean to say that Messrs. Latouche were actually privy to its having been held in trust for Warren; but they took from an assignee, and they should have looked at the assignment to him, and then they would have seen this was a satisfied judgment, which therefore could not be set up against subsequent creditors. But Messrs. Latouche are not criminally parties to the fraud, and I shall decree them entitled to be satisfied by Chamley the money advanced on this judgment. |