Sivut kuvina
PDF
ePub

“that A. B. doth acknowledge to owe to our lord the king, to “ the plaintiff, to C. D., or the like, the sum of ten pounds;" with condition to be void on performance of the thing stipulated: in which case the king, the plaintiff, C. D., &c., is called the cognizee, " is cui cognoscitur ;” as he that enters into the recognizance is called the cognizor, is qui cognoscit." This, being either certified to, or taken by the officer of some court, is witnessed only by the record of that court, and not by the party's seal: so that it is not in strict

propriety a deed, though the effects of it are greater than a [ *342 ] *common obligation; being allowed a priority in point of pay

ment (53), and binding the lands of the cognizor, from the time of enrolment on record (z) (54). There are also other recognizances, of a private kind, in nature of a statute staple, by virtue of the statute 23 Hen. VIII. c. 6, which have been already explained (a), and shewn to be a charge upon real property.

3. A defeazance, on a bond, or recognizance, or judgment recovered, is a condition, which, when performed, defeats or undoes it, in the same manner as a defeazance of an estate before mentioned. It differs only from the common (2) Stat. 29 Car. II. c. 3. See pag. 161.

(a) See pag. 160.

3. Defeazances.

(53) A recognizance has priority in (54) A recognizance not enrolled point of payment, over a common obli- will be considered as an obligation, or gation; but a judgment, or decree, (not bond, only; but, being sealed and acbeing a mere interlocutory decree), knowledged, must be paid as a debt by takes place of a recognizance. (Little- specialty. (Bothomly v. Lord Fairfax, ton v. Hibbins, Cro. Eliz. 793. Searle 1 P. Wms. 340. S. C. 2 Vern. 751). v. Lane, 2 Freem. 104; S. C. 2 Vern. If enrolment is allowed by special or89. Perry v. Phelips, 10 Ves. 34). der, after the proper time has elapsed, Between decrees and judgments, the this, for most purposes, makes the reright to priority of payment is deter- cognizance effectual from the time of mined by their real priority of date, its date; but, should the cognizor, without regard to the legal fiction of between the date and the enrolment of relation to the first day of Term. (Dar- the recognizance, have borrowed money ston v. Earl of Oxford, 3 P. Wms. on a judgment, the judgment-creditor 401, n. Joseph v. Mott, Prec. in Cha. will be allowed a preference. (Fother79. Morrice v. Bank of England, 3 gill v. Kendrick, 2 Vern. 234). Swanst. 577).

condition of a bond, in that the one is always inserted in the deed or bond itself, the other is made between the same parties by a separate, and frequently a subsequent deed (6)(55). This, like the condition of a bond, when performed, discharges and disincumbers the estate of the obligor.

These are the principal species of deeds or matter in pais, Conclusion. by which estates may be either conveyed, or at least affected. Among which the conveyances to uses are by much the most frequent of any: though, in these, there is certainly one palpable defect, the want of sufficient notoriety; so that purchasors or creditors cannot know with any absolute certainty, what the estate, and the title to it, in reality are, upon which they are to lay out or to lend their money. In the antient feodal method of conveyance (by giving corporal seisin of the lands), this notoriety was in some measure answered; but, all the advantages resulting from thence are now totally defeated by the introduction of death-bed devises and secret conveyances: and there has never been yet any sufficient guard provided against fraudulent charges and incumbrances, since the disuse of the old Saxon custom of transacting all conveyances at the county-court, and entering a memorial of them in the chartulary or leger-book of some adjacent monastry (c), and the failure of the general register established by King Richard the first, for the starrs or mortgages made to *Jews, in the capitula de Judæis, of which Hoveden [ *343 ] has preserved a copy. How far the establishment of a like general register, for deeds, and wills, and other acts affecting real property, would remedy this inconvenience, deserves to be well considered. In Scotland, every act and event regarding the transmission of property, is regularly entered on record (d). And some of our own provincial divisions, particularly the extended county of York, and the populous

(6) Co. Litt. 237. 2 Saund. 47.
(c) Hickes, Dissertat. Epistolar. 9.

(d) Dalrymple on Feodal Property, 262, &c.

(55) See ante, p. 327, and note (35) thereto.

PP

VOL. II.

county of Middlesex, have prevailed with the legislature(e) to erect such registers in their several districts. But, however plausible these provisions may appear in theory, it hath been doubted (56) by very competent judges, whether more disputes have not arisen in those counties by the inattention and omission of parties, than prevented by the use of registerst.

(e) Stat. 2 & 3 Ann. c. 4; 6 Ann. c. 35; 7 Ann. c. 20; 8 Geo. II. c. 6.

(56) But, these doubts have been the notice of the commissioners to met by very confident opinions in fa- whom a consideration of the present vour of general registration; and, it is state of the laws of real property, and believed, the propriety of such a mea- of the improvements of which the syssure has been strongly pressed upon tem is susceptible, has been referred.

+ Mr. Christian observes, that "by cumbrance, before he made his own the register-acts, a registered deed shall contract or purchase. They thought, be preferred to a prior unregistered that, to admit a contrary doctrine would deed; yet, it has been decreed by Lord leave it always open to argument, wheHardwicke, if the subsequent purchaser ther sufficient notice had, or had not, by the registered deed had previous been received; and that this would notice of the unregistered one, he shall lead to endless uncertainty, confusion, not avail himself of his deed, but the and perjury; therefore, that it was first purchaser shall be preferred. (1 much better the right of the subject Ves. sen. 64).”

should depend upon certain and fixed [The legislature has been understood principles of law, than upon rules and by our courts, not to have meant, that constructions of equity. They decided, (the form of registration being unob- consequently, that nothing, not even served) actual notice of an incum- the most actual and direct notice, brance on an estate should not bind a should countervail the want of regispurchaser. (Davis v. Earl of Strath- tration. (See Mr. Hargrave's note to more, 16 Ves. 430.

Le Neve v. Le Co. Litt. 290 b). With us, it has been Neve, 3 Atk. 650. Bushell v. Bushell, much doubted, whether our 1 Sch. & Lef. 100. Doe v. Allsop, 5 ought ever to have suffered the quesBarn. & Ald. 147). The French tion of notice to be agitated, as against courts adhered much more rigidly to a party who has duly registered his the letter of their old code respecting conveyance. (Wyatt v. Barwell, 19 registration, and held, that a creditor Ves. 439). or purchaser might plead want of re- [Registration of an equitable mortgistration, in bar of a prior incum- gage, or other incumbrance upon lands brance, though such creditor or pur- situated in a register county, is clearly chaser had full notice of the prior in- not, of itself, presumptive notice to a subsequent legal mortgagee, so as to gagee, whose mortgage has been duly take from him his legal advantage. registered, but notice of which registra(Morecock v. Dickens, Ambl. 680. Bed- tion is not brought home to the equitford v. Bacchus, 2 Eq. Ca. Ab. 615. able mortgagee; (Wiseman v. Westland, Hodgson v. Dean, 2 Sim. & Stu. 224). 1 Younge & Jerv. 121); for, it is setNor will registration of a mortgage of tled, (though the soundness of the the equity of redemption.preclude a doctrine, as we have seen, is questionthird mortgagee from tacking that in- able), that the registry of a deed does cumbrance, if he has bought in the not, of itself, amount to constructive first mortgage; provided he had not notice. (Cator v. Cooley, 1 Cox, 182 notice of the second mortgage, when Jolland v. Stainbridge, 3 Ves. 485. he lent his money. (Cater v. Cooley, Pentland v. Stokes, 2 Ball & Beat. 75. 1 Cox, 182). And an equitable mort- Bushell v. Bushell, 1 Sch. & Lef. 97, gagee will not be compelled to deliver 103. Latouche v. Dunsany, 1 Sch. & up the title deeds deposited with him, Lef. 157. Underwood v. Courtown, 2 but will be entitled to the benefit Sch. & Lef. 64. Hodgson v. Dean, 2 thereof, as against a prior legal mort- Sim. & Stu. 225).-ED.]

courts

344

CHAPTER XXI.

OF ALIENATION BY MATTER OF RECORD.

For it may

Of assurances

ASSURANCES by matter of record are such as do not entirely by matter of re- 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 from 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. 1. Private acts

I. Private acts of parliament are, especially of late years, 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,

(1) As a bargain and sale of an es- thor's definition, assurances by matter tate of inheritance, or of freehold, and of record, requiring the sanction of a a recognizance, require enrolment, they court of record to their perfection. are, in some sort, according to our au

« EdellinenJatka »