[*342] 3. Defeazances. "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 *common obligation; being allowed a priority in point of payment (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 (z) Stat. 29 Car. II. c. 3. See pag. 161. (53) A recognizance has priority in point of payment, over a common obligation; but a judgment, or decree, (not being a mere interlocutory decree), takes place of a recognizance. (Littleton v. Hibbins, Cro. Eliz. 793. Searle v. Lane, 2 Freem. 104; S. C. 2 Vern. 89. Perry v. Phelips, 10 Ves. 34). Between decrees and judgments, the right to priority of payment is determined by their real priority of date, without regard to the legal fiction of relation to the first day of Term. (Darston v. Earl of Oxford, 3 P. Wms. 401, n. Joseph v. Mott, Prec. in Cha. 79. Morrice v. Bank of England, 3 Swanst. 577). (a) See pag. 160. (54) A recognizance not enrolled will be considered as an obligation, or bond, only; but, being sealed and acknowledged, must be paid as a debt by specialty. (Bothomly v. Lord Fairfax, 1 P. Wms. 340. S. C. 2 Vern. 751). If enrolment is allowed by special order, after the proper time has elapsed, this, for most purposes, makes the recognizance effectual from the time of its date; but, should the cognizor, between the date and the enrolment of the recognizance, have borrowed money on a judgment, the judgment-creditor will be allowed a preference. (Fothergill v. Kendrick, 2 Vern. 234). 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 (b) (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 (d) Dalrymple on Feodal Property, (b) Co. Litt. 237. 2 Saund. 47. VOL. II. (55) See ante, p. 327, and note (35) thereto. PP 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 met by very confident opinions in favour of general registration; and, it is believed, the propriety of such a measure has been strongly pressed upon the notice of the commissioners to whom a consideration of the present state of the laws of real property, and of the improvements of which the system is susceptible, has been referred. + Mr. Christian observes, that "by the register-acts, a registered deed shall be preferred to a prior unregistered deed; yet, it has been decreed by Lord Hardwicke, if the subsequent purchaser by the registered deed had previous notice of the unregistered one, he shall not avail himself of his deed, but the first purchaser shall be preferred. (1 Ves. sen. 64)." [The legislature has been understood by our courts, not to have meant, that (the form of registration being unobserved) actual notice of an incumbrance on an estate should not bind a purchaser. (Davis v. Earl of Strathmore, 16 Ves. 430. Le Neve v. Le Neve, 3 Atk. 650. Bushell v. Bushell, 1 Sch. & Lef. 100. Doe v. Allsop, 5 Barn. & Ald. 147). The French courts adhered much more rigidly to the letter of their old code respecting registration, and held, that a creditor or purchaser might plead want of registration, in bar of a prior incumbrance, though such creditor or purchaser had full notice of the prior in cumbrance, before he made his own contract or purchase. They thought, that, to admit a contrary doctrine would leave it always open to argument, whether sufficient notice had, or had not, been received; and that this would lead to endless uncertainty, confusion, and perjury; therefore, that it was much better the right of the subject should depend upon certain and fixed principles of law, than upon rules and constructions of equity. They decided, consequently, that nothing, not even the most actual and direct notice, should countervail the want of registration. (See Mr. Hargrave's note to Co. Litt. 290 b). With us, it has been much doubted, whether our courts ought ever to have suffered the question of notice to be agitated, as against a party who has duly registered his conveyance. (Wyatt v. Barwell, 19 Ves. 439). [Registration of an equitable mortgage, or other incumbrance upon lands situated in a register county, is clearly not, of itself, presumptive notice to a subsequent legal mortgagee, so as to take from him his legal advantage. (Morecock v. Dickens, Ambl. 680. Bedford v. Bacchus, 2 Eq. Ca. Ab. 615. Hodgson v. Dean, 2 Sim. & Stu. 224). Nor will registration of a mortgage of the equity of redemption preclude a third mortgagee from tacking that incumbrance, if he has bought in the first mortgage; provided he had not notice of the second mortgage, when he lent his money. (Cater v. Cooley, 1 Cox, 182). And an equitable mortgagee will not be compelled to deliver up the title deeds deposited with him, but will be entitled to the benefit thereof, as against a prior legal mort gagee, whose mortgage has been duly registered, but notice of which registration is not brought home to the equitable mortgagee; (Wiseman v. Westland, 1 Younge & Jerv. 121); for, it is settled, (though the soundness of the doctrine, as we have seen, is questionable), that the registry of a deed does not, of itself, amount to constructive notice. (Cator v. Cooley, 1 Cox, 182 Jolland v. Stainbridge, 3 Ves. 485. Pentland v. Stokes, 2 Ball & Beat. 75. Bushell v. Bushell, 1 Sch. & Lef. 97, 103. Latouche v. Dunsany, 1 Sch. & Lef. 157. Underwood v. Courtown, 2 Sch. & Lef. 64. Hodgson v. Dean, 2 Sim. & Stu. 225).-ED.] 344 CHAPTER XXI. OF ALIENATION BY MATTER OF RECORD. Of assurances cord. 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 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. I. Private acts I. Private acts of parliament are, especially of late years, of parliament. become a very common mode of assurance. For it 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 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 estate of inheritance, or of freehold, and a recognizance, require enrolment, they are, in some sort, according to our au thor's definition, assurances by matter of record, requiring the sanction of a court of record to their perfection. |