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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.]
OF ALIENATION BY MATTER OF RECORD.
For it may
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,
4. Common recoveries.
sometimes happen, that, by the ingenuity of some, and the
(1) As a bargain and sale of an es- thor's definition, assurances by matter
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 *the like kind, the transcendent [ *315 ) 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 par. liament: 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 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.
Acts of this kind are, however, at present carried on, in of the requisites both houses, with great deliberation and caution; particu- act of parlia
for obtaining an larly in the house of lords, they are usually referred to two ment. 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 with
vate acts when
out 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 therein particularly named: though it hath been holden,
that even if such saving be omitted, the act shall bind none [ * 346 ) but the parties (c). Relief may be *A law, thus made, though it binds all parties to the bill, had against pri
is yet looked upon rather as a private conveyance, than as obtained by the solemn act of the legislature. It is not, therefore, alfraud; and the courts are not lowed to be a public, but a mere private statute; it is not bound take notice of them, printed or published among the other laws of the session; unless specially it hath been relieved against, when obtained upon fraudupleaded.
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 (2) among the public records of the nation, to be for ever preserved as a perpetual testimony of the conveyance or as
surance so made or established. II. The king's II. The king's grants are also matter of public record. grants, or letters 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
(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.
(2) General acts are enrolled by the Commons, and the Royal assent, inclerk of the parliament, and delivered dorsed, and filed and labelled with the to the Chancery, which enrolment in other bills to which the great seal is the Chancery makes the original re- annexed, constitutes the original record. Private bills are not enrolled cord, and remains with the clerk of without special suit; but the original the parliament. (Comyn's Dig. Parliabill, with the assent of the Lords and ment, R. 3).
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 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 Practice as to
the passing of prepared by the attorney and solicitor-general, in conse- grants or letters quence *of a warrant from the crown; and is then signed, patent. that is, superscribed at the top, with the king's own sign ma- [ *347 ] nual, 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 (8).” 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