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OF ALIENATION BY MATTER OF RECORD.
by matter of re
For it may
ASSURANCES by matter of record are such as do not entirely of assurances depend on the act or consent of the parties themselves: but cord. the sanction of a court of record is called in to substantiate, preserve, and be a perpetual testimony of the transfer of property froni one man to another (1); or of its establishment, when already transferred. Of this nature are, 1. Private acts of parliament. 2. The king's grants. 3. Fines. 4. Common recoveries. I. Private acts of parliament are, especially of late years, I. Private acts of
parliament. become a very common mode of assurance. sometimes happen, that, by the ingenuity of some, and the blunders of other practitioners, an estate is most grievously entangled by a multitude of contingent remainders, resulting trusts, springing uses, executory devises, and the like artificial contrivances (a confusion unknown to the simple conveyances of the common law); so that it is out of the power of either the courts of law or equity to relieve the owner. Or it may sometimes happen, that, by the strictness or omissions of family-settlements, the tenant of the estate is abridged of some reasonable power, (as, letting leases, making a jointure for a wife, or the like,) which power cannot be given him by the ordinary judges either in common law or equity. Or, it may be necessary, in settling an estate, to secure it against the claims of infants or other per
(1) As a bargain and sale of an estate of inheritance, or of freehold, and a recognizance, require enrolment, they are, in some sort, accord
ing to our author's definition, assurances by matter of record, requiring the sanction of a court of record to their perfection.
sons under legal disabilities, who are not bound by any
judgments or decrees of the ordinary courts of justice. In [ * 345 ] these, or other cases of *the like kind, the transcendent
power of parliament is called in, to cut the Gordian knot; and by a particular law, enacted for this very purpose, to unfetter an estate ; to give its tenant reasonable powers; or to assure it to a purchasor, against the remote or latent claims of infants or disabled persons, by settling a proper equivalent in proportion to the interest so barred.' This practice was carried to a great length in the year succeeding the restoration ; by setting aside many conveyances alleged to have been made by constraint, or in order to screen the estates from being forfeited during the usurpation. And at last it proceeded so far, that, as the noble historian expresses it(a), every man had raised an equity in his own imagination, that he thought was entitled to prevail against any descent, testament, or act of law, and to find relief in parliament: which occasioned the king, at the close of the session to remark (6), that the good old rules of law are the best security; and to wish, that men might not have too
l; much cause to fear, that the settlements which they make of their estates, shall be too easily unsettled when they are
dead, by the power of parliament. Of the requisites Acts of this kind, are, however, at present carried on, in act of parlia- both houses, with great deliberation and caution; particu
larly in the house of lords, they are usually referred to two judges to examine and report the facts alleged, and to settle all technical forms (2). Nothing, also, is done without the consent, expressly given, of all parties in being, and capable of consent, that have the remotest interest in the matter; unless such consent shall appear to be perversely and without any reason withheld. And, as was before hinted, an equivalent in money or other estate is usually settled upon infants, or persons not in esse, or not of capacity to act for themselves, who are to be concluded by this act. And a general saving is constantly added, at the close of the bill, of the right and interest of all persons whatsoever, except those whose consent is so given or purchased, and who are
for obtaining an
(a) Lord Clar. Contin. 162.
(6) Ibid. 163.
(2) See Vol. IV. p. 4.
therein particularly named: though it hath been holden, - that even if such saving be omitted, the act shall bind none but the parties (c).
*A law, thus made, though it binds all parties to the bill, [ *346 ] is yet looked upon rather as a private conveyance, than as had against prithe solemn act of the legislature. It is not, therefore, al- vate acts when lowed to be a public, but a mere private statute; it is not fraud; and the printed or published among the other laws of the session ; bound to take
notice , it hath been relieved against, when obtained upon fraudu- unlese specially lent suggestions (d); it hath been holden to be void, if contrary to law and reason (e); and no judge or jury is bound to take notice of it, unless the same be specially set forth and pleaded to them. It remains, however, enrolled (3) among the public records of the nation, to be for ever preserved as a perpetual testimony of the conveyance or assurance so made or established.
II. The king's grants are also matter of public record. 11. The king's For, as St. Germyn says (f), the king's excellency is so high patent. in the law, that no freehold may be given to the king, nor derived from him, but by matter of record. And to this end a variety of offices are erected, communicating in a regular subordination one with another, through which all the king's grants must pass, and be transcribed, and enrolled; that the same may be narrowly inspected by his officers, who will inform him if any thing contained therein is improper or unlawful to be granted. These grants, whether of lands, honours, liberties, franchises, or aught besides (4), are contained in charters, or letters patent, that is, open letters, literæ patentes : so called because they are not sealed up, but exposed to open view, with the great seal pendant at the bottom; and are usually directed or
grants, or letters
(c) Co. 138 ; Godb. 171.
(d) Richardson v. Hamilton, Canc. 8 Jan. 1733; M*Kenzie v. Stuart,
Dom. Proc. 13 Mar. 1754.
(e) 4 Rep. 12.
(3) General acts are enrolled by assent, indorsed, and filed and labelthe clerk of the parliament, and deli- led with the other bills to which the vered to the Chancery, which enrol. great seal is annexed, constitutes the ment in the Chancery makes the original record, and remains with the original record. Private bills are not clerk of the parliament. (Comyn's enrolled without special suit; but the Dig. Parliament, R. 3.) original bill, with the assent of the (4) As to patents for new invenLords and Commons, and the Royal tions, see post, p. 407, n.
Practice as to the passing of patent.
addressed by the king to all his subjects at large. And therein they differ from certain other letters of the king, sealed also with his great seal, but directed to particular persons, and for particular purposes : which, therefore, not being proper for public inspection, are closed up and sealed on the outside, and are thereupon called writs close, literæ clause, and are recorded in the close-rolls, in the same manner as the others are in the patent-rolls.
Grants, or letters patent, must first pass by bill: which is grants or letters prepared by the attorney and solicitor-general, in conse[ * 347 ]
quence *of a warrant from the crown ; and is then signed, that is, superscribed at the top, with the king's own sign manual, and sealed with his privy signet, which is always in the custody of the principal secretary of state; and then sometimes it immediately passes under the great seal, in which case the patent is subscribed in these words, "per ipsum regem, by the king himself”(g). Otherwise, the course is to carry an extract of the bill to the keeper of the privy seal, who makes out a writ or warrant thereupon to the Chancery; so that the sign manual is the warrant to the privy seal, and the privy seal is the warrant to the great seal: and in this last case the patent is subscribed," per breve de pri“ vato sigillo, by writ of privy seal” (h). But there are some grants, which only pass through certain offices, as the admiralty or treasury, in consequence of a sign manual, without the confirmation of either the signet, the great, or the privy seal.
The manner of granting by the king does not more differ
from that by a subject, than the construction of his grants, grants by the king.
when made. 1. A grant made by the king, at the suit of the grantee, shall be taken most beneficially for the king, and against the party (5): whereas the grant of a subject is construed most strongly against the grantor. Wherefore, it is usual to insert in the king's grants, that they are made, not at the suit of the grantee, but “ ex speciali gratia, “ certa scientia et mero motu regis;" and then they have a more liberal construction (i). 2. A subject's grant shall be construed to include many things besides what are ex
Mode of construction observed as to
(9) 9 Rep. 18.
(1) Ibid. ; 2 Inst. 555.
(i) Finch, L. 100; 10 Rep, 112.
(5) See ante; pp. 18 & 22, with the notes.
pressed, if necessary for the operation of the grant. Therefore, in a private grant of the profits of land for one year, free ingress, egress, and regress, to cut and carry away those profits, are also inclusively granted (k): and if a feoffment of land was made by a lord to his villein, this operated as a manumission (l); for he was otherwise unable to hold it. But the king's grant shall not enure to any
other intent than that which is precisely expressed in the grant. As, if he grants land to an alien, it operates nothing; for *such grant shall not also enure to make him a denizen, that [ * 348 ] so he may be capable of taking by grant (m). 3. When it appears, from the face of the grant, that the king is mistaken, or deceived, either in matter of fact or matter of law, as in case of false suggestion, misinformation, or misrecital of former grants; or if his own title to the thing granted be different from what he supposes ; or if the grant be informal; or if he grants an estate contrary to the rules of law; in any of these cases the grant is absolutely void (k)(6). For instance, if the king grants lands to one and his heirs male, this is merely void : for it shall not be an estate-tail, because there want words of procreation, to ascertain the body out of which the heirs shall issue: neither is it a fee-simple, as in common grants it would be; because it may reasonably be supposed, that the king meant to give no more than an estate-tail (l): the grantee is therefore (if any thing) nothing more than tenant at will m). And to prevent deceits of the king, with regard to the value of the estate granted, it is particularly provided by the statute 1 Hen. IV.c. 6, that no grant of his shall be good, unless in the grantee's petition for them, express mention be made of the real value of the lands.
III. We are next to consider a very asual species of assur- III. Fines of ance, which is also of record, viz. a fine of lands and tene- ments. ments. In which it will be necessary to explain, 1. The
(k) Co. Litt. 56. (1) Litt. s. 206.
(m) Bro. Abr. tit. Patent, 62 ; Finch, L. 110.
(k) Freem. 172.
(1) Finch, 101, 102.
(m) Bro. Abr. tit. Estates, 34 ; Tit. Patents, 104 ; Dyer, 270 ; Dav. 45.
(6) See Vol. III. p. 47.