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 already been explained, (a) and shown 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 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) 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, 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 purchasers 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 ancient feudal 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 ledger-book of some adjacent monastery; (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 has preserved a copy. [*343] 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 county of Middlesex, have prevailed with the legislature (e) to erect such register 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. (49)

(a) See page 160.

(b) Co. Litt. 237. 2 Saund. 47.

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

(c) Hickes Dissertat. epistolar. 9.

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

fax, 1 P. Wms. 340; S. C. 2 Vern. 751. If enrollment 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 enrollment of the recognizance, have borrowed money on a judgment, the judgment creditor will be allowed a preference. Fothergill v. Kendrick, 2 Vern. 234.]

(49) [By the register-acts, a registered deed shall be preferred to a prior unregistered deed; ret 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. and Lef. 200; Doe v. Allsop, 5 Barn. and Ald. 147. The French courts adhered much more rigidly to he 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 incumbrance, 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 construcions of equity. They decided, consequently, that nothing, not even the most actual and dieet notice. should countervail the want of registration. See Mr. Hargrave's note to Ca

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 recoveries.

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 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, [*345] the transcendent 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 purchaser, against the remote or latent claims of infants or disabled persons, by settling a proper equivalent in proportion to the interest so barred. (1) This practice was

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 r. 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. and 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 mortgagee, whose mortgage has been duly registered, but notice of which registration is not brought home to the equitable mortgagee. Wiseman v. Westland, 1 Younge and 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. Cater v. Cooley, 1 Cox, 182; Jolland v. Stainbridge, 3 Ves. 485; Pentland v. Stokes, 2 Ball and Peat. 75; Bushell v. Bushell, 1 Sch. and Lef. 97, 103; Latouche v. Dunsany, 1 id. 157; Underwood v. Courtown, 2 id. 64; Hodgson v. Dean, 2 Sim. and Stu. 225.]

The system of recording conveyances of lands for the purposes of notice is general throughout the United States; the statutes of each state prescribing what shall be the formalities of execution to entitle the instrument to record, and also what shall be the effect of the record, both as to notice and evidence. In general the record is notice only to those who claim title or liens through or under the grantor, acquired subsequently. Ely v. Wilcox, 20 Wis. 530; George v. Wood, 9 Allen, 80; Bates v. Norcross, 14 Pick. 231; Crockett v. Maguire, 10 Mo. 34. But though the deed be not on record, any one who has actual notice of its existence is bound by that notice to the same extent as if the record had been made. Murphy t. Nathans, 46 Penn. St. 512; Blanchard v. Tyler, 12 Mich. 339; Wells v. Morrow, 38 Ala. 125; Dixon v. Doe, 1 S. and M. 70; Rogers v. Jones, 8 N. H. 264; Irvin e. Smith, 17 Ohio, 226; Lillard v. Rucker, 9 Yerg. 63; Cosgray v. Cove, 2 W. Va. 353. And notice to one of several grantees is notice to all. Stanley r. Green, 12 Cal. 148; Myers v. Ross, 3 Head. 59.

(1) [Tenants for life sometimes obtain private acts of parliament to enable them to charge the inheritance for the amount of necessary repairs and improvements, which must enure to

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 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 estate, 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 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 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 looked [*346 ] 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; (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 among the public records of the nation to be forever preserved as a perpetual testimony of the conveyance or assurance so made or established. (2)

(a) Lord. Clar. Contin. 162. (d) Richardson v. Hamilton. (e) 4 Rep. 12.

(b) Ibid. 163.

(c) Co. 138. Godh. 171.

Canc. 8 Jan. 1773. McKenzie v. Stuart. Dom. Proc. 13 Mar. 1754.

the benefit of the remainderman and reversioner. But parliament of course is the judge whether the proposed repairs and improvements are adequately beneficial to the amount to be charged upon the estate. As to the forms to be observed in the passing of private statutes see ante, book 1. 181, et seq.]

(2) The power in the legislature to transfer the title to private estates is very much restricted in the several states of the American Union, not only by the universal constitutional principle that no man shall be deprived of property except by due process of law, and by express provisions in some of the constitutions inhibiting private acts for such purposes, but also by the recognized maxim that to transfer one man's property to another, except in pursuance of general laws, and in accordance with the recognized principles which protect private rights, is not the exercise of legislative power, and therefore not within the general grant of that power which the state constitutions make to the state legislative bodies. Newland v. Marsh, 19 Ill. 382; Bowman v. Middleton, 1 Bay, 282; Wilkinson v. Leland, 2 Pet. 657, per Story J. But there are many cases where private statutes similar to those, referred to in the text, are allowable, anless prohibited in express terms. In the case of infants, lunatics, and other persons under disability, the legislature possesses general authority to prescribe the mode in which their property shall be disposed of for their benefit; and though this is usually done by general laws which give supervision of the proceedings to some proper court, it is well settled that the legislature, if not expressly prohibited, may interfere în special cases, and, by private act. authorize a transfer to be made by the guardian or trustee, without regard to the general laws. Rice v. Parkman, 16 Mass. 326; Cochran v. Van Surlay, 20 Wend. 373; Holman's Heirs v. Bank of Norfolk, 12 Ala. 369; Florentine v. Barton, 2 Wal. 210. And it is believed to be equally competent for the legislature to authorize a person under legal disability-for example. an infant-to convey his estate, as to authorize it to be conveyed by guardian. McComb. v. Gilkey, 29 Miss. 146. Private statutes of this description are always supposed to be made in the interest of the persons concerned: Merrill v. Sherburne, 1 N. H. 204; and are enacted 561

VOL. I.-71

II. The king's grants are also matter of public record. For as St. Germyn says, (f) 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 him if any thing contained therein is improper, or unlawful to be granted. These grants, whether of lands, honours, liberties, franchises, or aught besides, are contained in charters, or letters patent, that is, open letters, litera 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 of a warrant from the crown; [*347] and is then signed, that is, subscribed 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." (g) 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." (h) (3) But there are some grants which only pass through certain offices, as the admiralty or treasury, in consequence of a sign manual, without the confirmation of either the signet, the great, or the privy seal.

(f) Dr. & Stud. b. 1, d. 8.

(g) 9 Rep. 18.

(h) Ibid 2. Inst. 555.

ander such circumstances only as would render it reasonable to imply their assent if they were capable of giving it. Cooley Const. Lim. 103. And there is no general principle of constitutional law which would preclude a private act for the purpose of converting real property into personal, or an equitable estate into a legal, where no other change of rights was inade, and the parties in interest, or the proper guardians of their interest, desired the change Upon this point the reader will consult with profit, Carroll v. Lessee of Olmsted, 16 Ohio, 251 Davison v. Johonnot, 7 Met. 383; Leggett v. Hunter. 19 N. Y. 445; Dorsey v. Gilbert, 11 Gill and J. 87; Estep v. Hutchman, 14 S. and R. 435; Shehan's Heirs v. Barnet's Heirs, 6 T. B. Monr. 594; Moore v. Maxwell, 18 Ark. 469, in which the doctrine here stated has been applied in a great variety of circumstances. And see further cases cited in Cooley Const. Lim. 101-103. But the legislature cannot assume to declare that claims which are asserted against the property of individuals are valid, and to order the property sold to satisfy them; for this would Le the exercise not of legislative, but of judicial power. Lane v. Dorman, 3 Scam. 242. And sce for a similar principle, Cash, appellant, 6 Mich. 193; Ervine's Appeal, 16 Penn. St. 263; Stato r. Noyes, 47 Me. 189; Edwards v. Pope, 3 Scam. 465.

Interests which are only in expectancy, like the expectation of succeeding to an estate as heir at law on the death of the owner, or of becoming tenant by the curtesy or in dower in the lands of a wife or husband now living, may be modified or altogether abolished by the legislature at any time before they actually become vested. Tong v. Marvin, 15 Mich. 60; Barbour v. Barbour, 46 Me. 9; Lucas v. Sawyer, 17 Iowa, 517; Noel v. Ewing, 9 Ind. 57, Westervelt v. Gregg, 12 N. Y. 208; Plumb r. Sawyer, 21 Conn. 351; Clark v. McCreary, 12 S. and M. 347. But when this is done, it is by general laws, and it would be difficult to defend ar attempt to do it by special statute operative only in a particular case.

(3) [But now under the statute 14 and 15 Vic. c. 82, which abolished the offices of the clerk of the signet and privy seal, a warrant under the sign manual may be addressed to the lord chancellor, commanding him to cause letters patent to be passed under the great seal. This warrant must be prepared by the attorney or solicitor general, setting forth the proposed let ters patent, and must be countersigned by one of the principal secretaries of state, and sealed with 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: 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. (i) 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: (j) and if a feoffment of land was made by a lord to his villein, this operated as a manumission; (k) 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 *such grant shall not also enure to make him a denizen, that so he [ *348 ] be may capable of taking by grant. (1) 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, misinformation, or misrecital of former grants; or if his own title to the thing granted be different from what he supposes; or if the grant be informal; or if he grants an estate contrary to the rules of law; in any of these cases the grant is absolutely void. (m) For instance; if the king grants lands to one and his heirs male, this is merely void: for it shall not be an estate-tail, because there want words of procreation, to ascertain the body out of which the heirs shall issue: neither is it a fee-simple, as in common grant it would be; because it may reasonably be supposed, that the king meant to give no more than an estate-tail: (n) the grantee is therefore (if any thing) nothing more than tenant at will. (0) And to prevent deceits of the king, with regard to the value of the estate granted, it is particularly provided by the statute 1 Hen. IV, c. 6, that no grant of his shall be good, unless, in the grantee's petition for them, express mention be made of the real value of the lands.

III. We are next to consider a very usual species of assurance, which is also of record; viz.: a fine of lands and tenements. In which it will be necessary to explain, 1. The nature of a fine; 2. Its several kinds; and, 3. Its force and effect. (4)

1. A fine is sometimes said to be a feoffment of record: (p) though it might with more accuracy be called an acknowledgment of a feoffment on record. By which is to be understood, that it has at least the same force and effect with a feoffment, in the conveying and assuring of lands: though it is one of those methods of transferring estates of freehold by the common law, in which livery of seisin is not necessary to be actually given; the supposition and aknowledgment thereof in a court of record, however fictitious, induc- [*349] ing an equal notoriety. But, more particularly, a fine may be described to be an amicable composition or agreement of a suit, either actual or fictitious, by leave of the king or his justices: whereby the lands in question become, or are acknowledged to be, the right of one of the parties. (7) In its original it was founded on an actual suit, commenced at law for recovery of the possession of land or other hereditaments; and the possession thus gained by such composition was found to be so sure and effectual, that fictitious actions were, and continue to be, every day commenced, for the sake of obtaining the same security.

(j) Co. Litt. 56.
(k) Litt. § 206.
(m) Freem. 172.

(n) Finch, 101, 102.

(i) Finch, L. 100. 10 Rep. 112.
(1) Bro. Abr. tit. Patent, 62. Finch, L. 110.

(0) Bro. Abr. tit. Estates, 34 tit. Patents, 101. Dyer, 270. Dav. 45.

(p) Co. i itt. 50.

(q) Ibid. 120.

(4) This species of assurance is now abolished in England by statute 3 and 4 William IV, c. 74. It was never much employed in the United States, and is abolished by express statutes in several of the states.