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2. A recognizance is an obligation of record, which a man en- 2. Recogniters into before some court of record or magistrate duly authorized,y with condition to do some particular act; as, to appear at the Assizes, to keep the peace, to pay a debt, or the like. It is in most respects like another bond; the difference being chiefly this, that the bond is the creation of a fresh debt or obligation de novo, the recognizance is an acknowledgment of a former debt upon record, the form whereof is, "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 [342 ] ́ point of payment, and binding the lands of the cognizor from the time of enrollment on record.z* 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 shown to be a charge upon real property.

87

ance.

3. A defeasauce on a bond or recognizance, or judgment re- 3. Defeaz covered, is a condition, which, when performed, defeats or undoes it, in the same manner as a defeasance of an estate before mentioned. It differs only from the common 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. This, like the condition of a bond, when performed, discharges and disencumbers the estate of the obligor.

These are the principal species of deeds or matter in pais, General ob by which estates may be either conveyed or, at least, affected. servations. Bro. Abr., tit. Recognizance, 8-14,

24.

Stat. 29 Car. II., c. 3. See p. 161.

a See page 160.

b Co. Litt., 237: 2 Sand., 47.

214. And by the statute 8 & 9 Will. alty and a stipulation for liquidated dam-
III., c. 11, the remedy on a bond or ages, see 3 Moo. & P., 425; 7 Scott,
penalty to secure the performance of 364; 3 Mee. & W., 545.
any covenant or agreement is limited at
law (as it always was in equity) to the
actual amount of the damages to be as-
sessed by a jury. (See 6 East, 550; 5
B. & Ad., 40; 4 Moo. & P., 21.)

As to the difference between a pen

(87) See the different recognizances fully treated of, 2 Saund., 68, and Id., Index, tits. Recovery and Statute Mer chant and Staple.

* In New York, a recognizance does not bind lands.-(2 R. S., 362, § 21.)

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 purchasers or creditors can not 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 ancient feodal method of conveyance (by giving corporeal seizin of the lands) this notoriety was in some measure answered; but all the ad vantages 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 encumbrances, 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 of ledger-book of some adjacent monastery, and the failure of the general register established by King Richard the First, for the [343] starrs or mortgages made to Jews, in the capitula de Judæis, of which Hoveden has preserved a copy. How far the estab lishment 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 regu larly entered on record. And some of our own provincial divisions, particularly the extended county of York and the populous county of Middlesex, have prevailed with the legislaturee to erect such registers in their several districts. But, however plausible these provisions may appear in theory, it hath been doubted by very competent judges whether more disputes have not arisen in those counties by the inattention and omissions of parties, than prevented by the use of registers."

Registry.

c Hickes, Dissertat. Epistolar., 9.

&c.

e Stat. 2 & 3 Ann., c. 4. 6 Ann., c d Dalrymple on Feodal Property, 262, 35. 7 Ann., c. 20. 8 Geo. II., c. 6.

(88) By these statutes deeds and con- court of equity would relieve in such veyances are void against subsequent case, it having been decreed by Lord purchasers or mortgagees, unless register- Hardwicke that, if the subsequent pur ed before the conveyances under which chaser by the registered deed had presuch purchasers or mortgagees claim; vious notice of the unregistered one, he and no judgment, statute, or recogni- shall not avail himself of his deed, but zance shall bind any lands in those coun- the first purchaser shall be preferred. ties, but from the time a memorial there- But the registry itself of a deed is not of is entered at the office. Thus, where held to be a notice of it to all the world. there were two assignments of a lease, (1 Ves., 64; 3 Ves., 478; 1 Fonb. Eq., and the one last executed was registered first, it was held that the one first executed must be considered, in a court of law, as being fraudulent under the 7 Ann., c. 20, for default in registering, although the second assignee knew of the first assignment at the time his was executed. (5 B. & A, 142.) But a

25. n.; 3 Mad., 132; 1 You. & J., 117; 1 Sch. & Lef., 103; 2 Sim. & St., 221; 3 Sim., 301.) These acts do not extend to copyhold estates, leases at rack-rent, or to any leases not exceeding twentyone years, where the possession accompanies the lease, nor to the chambers in the inns of court.*-[CHITTY.]

In New York, every conveyance of real estate, including a mortgage, must

be recorded in the office of the clerk of the county in which the real estate is situate, or it is deemed void against a subsequent purchaser in good faith and for a valuable consideration, whose conveyance is first duly recorded.-(1 R. S., 756, § 1, 36, 37, 38.) Notice, however, of the prior unregistered deed deprives the subsequent purchaser or mortgagee whose deed is registered of the benefit of the prior registry. Such, no doubt, is the settled rule on the subject, although its soundness has been questioned, and, it is conceived, with much reason, as in a great measure defeating the object of the Registry Act, and opening a door to the perpetration of the grossest frauds.-(4 Kent's Comm., 168, et seq.) A still more questionable principle in reference to the priority of securities has been adopted in New York and South Carolina, viz., that an unregistered mortgage is entitled to preference over a subsequent docketed judgment. The reverse of this rule is held in Pennsylvania and in North Carolina, where the preference is given to the docketed judgment over the unregistered mortgage; and not unreasonably (says Chancellor Kent), for there is much good sense, as well as simplicity and certainty, in the proposition, that every encumbrance, whether it be a registered deed or docketed judgment, should, in cases free from fraud, be satisfied according to the priority of the lien upon the record, which is open for public inspection. (4 Kent's Comm., 173.) The plaintiff in a docketed judgment is clearly within the equity of the statute.

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405

344

Of assuranees by matter of record.

1. Private

acts of Parliament.

CHAPTER XXI.

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 its establishment, when already transferred. Of this nature are, 1. Private acts of Parliament. 2. The king's grants. 3. Fines. 4. Common re

coveries.

I. Private acts of Parliament are, especially of late years, 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, making a jointure for a wife, or the like), which power can not 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 judg ments or decrees of the ordinary courts of justice. In these, or [345] other cases of the like kind, the transcendent power of Parlia ment 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 purchaser, 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

(1) Tenants for life sometimes obtain is the judge whether the proposed reprivate acts of Parliament to enable pairs and improvements are adequatethem to charge the inheritance for the ly beneficial to the amount to be charg amount of necessary repairs and im- ed upon the estate. As to the forms to provements, which must enure to the be observed in the passing of private benefit of the remainder-man and re- statutes, see ante, vok. i., p. 181, et seq. versioner. But Parliament, of course, [CHITTY.]

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 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,b 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 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 fact 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 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 but the parties.c

A law thus made, though it binds all parties to the bill, is yet [346] 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 ;d it hath been holden to be void, if contrary to law and reason; 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 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.

a Lord Clar., Contin., 162. Ibid., 163.

c Co. Litt., 138. Godb., 171.

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Richardson v. Hamilton, Canc., 8 grants.
Jan., 1733. M'Kenzie v. Stuart, Dom.
Proc., 13 Mar., 1754.

• 4 Rep., 12.

(2) With respect to the restrictions statutes 1 Ann., st. 1, c. 7; 34 Geo. III., upon grants of lands by the crown, see c. 75; 38 Geo. III., c. 60; 42 Geo. III.,

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