CHAPTER THE TWENTY-FIRST. OF ALIENATION BY MATTER OF RECORD. *Assurances by matter of record are such as do not entirely depend on the act or consent of the parties themselves: but the sanction of a court of record is called in to substantiate, preserve, and be a perpetual testimony of, the transfer of property from one man to another; or of it's 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, become a very common mode of assurance. [See note 66, page 556.] For fit may 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 omission 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 persons under legal disabilities; who are not bound by any judgments or decrees of the ordinary courts of justice. In these, or other cases of 1345] the like kind, the tran *-* Quoted, 8 How. 538. scendent 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 it's 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 8 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, every man had raised an equity in his own imagination, that he thought was intitled 8 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, that the good old rules of law are the best security; and to wish, that men might not have too 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. I Acts of this kind are however at present carried on, in both houses, with great deliberation and caution; particularly 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. 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 a Lord Clar, Contin. 162, b Ibid. 163. 8 Previously, ought.' +-* Quoted, 15 Wend. 440, 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 therein particularly named.9* [346] A law, thus made, though it binds all parties to the bill, is yet looked upon rather as a private conveyance, than as the solemn act of the legislature. It is not therefore allowed to be a public, but a mere private statute; it is not printed or published among the other laws of the session; it hath been relieved against, when obtained upon fraudulent suggestions; 2 9and 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 among the public records of the nation, to be forever 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. For, as St. Germyn says, the king's excellency is so high 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 c Richardson v. Hamilton, Canc. 8 Jan. 1733. McKenzie v. Stuart, Dom. Proc. 13 Mar. 1754. d Dr. & Stud. b. 1. d. 8. 9 Ninth edition adds, ", though it hath been holden that, even if such saving be omitted, the act shall bind none but the parties.c" [c Co. 138. Codb. 171.] 9 Ninth edition inserts, "it hath been holden to be void, if contrary to law and reason.e" [e 4 Rep. 12.] *Cited, 8 How. 538; 1 N. H. 204; 8 Am. Dec. 57. - Quoted, 8 Johns. 556; 2 Murph. 421. Cited, 2 Johns, 263; 3 Am. Dec. 421; 7 Ga, 515; 10 Ired. 225. 2-2 Quoted, 1 Ohio St. 690. Cited, 2 Bland, 227; 20 Am. Dec. 369; 1 Nott & McC. 400; 7 Serg. & R. 559; 5 Hayw. (Tenn.) 189. - Quoted, 3 Litt. 38. him if anything contained therein is improper, or unlawful to be granted. These grants, whether of lands, honours, liberties, franchises, or ought besides, 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 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 prepared by the attorney and solicitor general, in consequence [347] 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." 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 privato sigillo, by writ of privy seal." But there are some grants, which only pass through certain offices, as the admiralty or treasury, in consequence of a sign d 9 Rep. 18. e Ibid. 2 Inst. 555, 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, 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 [see note 67, page 557]: 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.'† 2. A subject's grant shall be construed to include many things, besides what are expressed, 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: and if a feoffment of land was made by a lord to his villein, this operated as a manumission; 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 [348] such grant shall not also enure to make him a denizen, that so he may be capable of taking by grant.'] 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, f Finch, L, 100, 10 Rep. 112, g Co, Litt. 56, h Litt. 206. i Bro, Abr. tit. patent. 62. Finch. L. 110. *-Quoted, 93 N. Y. 145; 13 Cal. 452. Cited, 4 Wheat. 685; 1 Munf. 142; 4 Am, Dec. 543; 12 111. 386; 1 N. H. 94. Explained, 11 Peters, 589591, +- Quoted, 6 Watts & S. 104; 24 Mass. 461. 2- Quoted, 11 Wheat. 351; 1 Const. S. C. 412; first sentence, 24 Mass, 461; 6 Watts & S, 104; last, 3 Stewt. 79. Cited, 98 U, S, 493, |