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1806.

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 an argument of counsel, and which perhaps was more readily

(a) By statute 28th Geo. 3, c. 31.-Bills of exception may be ex. amined and determined on by the court out of which the record issued.

1806.

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 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.” 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.

LIBRARY

LAW

Cniversity of

470

APPENDIX.

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to say that the legislature meant to give precedence to a regis-
tered 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 en-
tered; 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 exe-
cutes another deed, and that deed be registered, the judg-
ment shall prevail against the unregistered deed, not by its
own force, but hy 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 unre-
gistered settlement is put out of the way as to all the judge
ments. I do not therefore feel that we are called
adopt the distinction which has been taken, upon any ab-'
stract 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 recol-
lected that it is founded on the precise situation of a judg-
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

upon to

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1806.

" fraudulent and void, not only against such registered deed, “ but likewise against all and every creditor and creditors “ by judgment, as for and concerning any of the lands con“ tained or expressed in the registered memorial.” Now, if I am to yield to the opinion which gives to these words a construction, that they may appear to bear in the order in which they stand, what is there, in the event of a contest between a registered deed and a prior unregistered deed, to oust the legal advantage given to a judgment creditor, whose judgment is entered subsequent to the registry of the registered deed? for there, by the very words of the act, the unregistered deed is declared fraudulent and void, not only against the registered deed, but against all and every judgment entered subsequent to the 25th of March, 1708. Then the words of the act are applicable to a case which is not consistent with the ground on which the distinction taken in Lord Dunsany v. Latouche proceeds; for they appear to me sufficient to embrace subsequent judgment cre. ditors to whom it is not necessary to give any priority for the sake of the registered deed.

I will put two cases of contending deeds; in one the unregistered deed shall be defeated; in the other it shall apparently prevail; and yet see whether the consequences of the principle contended for will follow. Suppose an unregistered 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

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 subse, quent 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 10,000l. 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 pur, chaser 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

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