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capable of being devised, could be secretly conveyed without going upon the land itself. Any single one of these incidents would have been highly esteemed; united, they offered so many attractions, as that nearly all the lands in the kingdom came at length to be conveyed by way of use.1

It has been the singular destiny a statute, containing, as Bacon observes, "the wisest and fittest ordinances, and the most foreseeing and circumspect savings and provisoes of any statute of these times," exactly and immediately to defeat one of its own declared objects. The favourite principle of the common law, as already observed, was that the right of property in land, and every transfer of it, should be open and notorious; and the secrecy with which uses might be declared to bind the land is expressly mentioned in the preamble as one of the mischiefs intended to be thereby guarded against. Yet the effect of the statute was, that not only the beneficial interest in the land as previously, but also the whole legal estate might be entirely transferred by a secret transaction, without any formality of giving or taking possession, and without even the security of any lasting document. The blot was immediately hit by vendors, and as quickly parried by the legislature by the statute of enrolments, which enacted that no estate of freehold should pass by reason only of any bargain or sale thereof, unless such bargain and sale were enrolled within six months in some court of record at Westminster. Had this enactment been practically obeyed as was intended, it would, in fact, have established a General Register. But even Henry the Eighth's acts of parliament, usually so sharp and effectual (especially where they touched the prerogative), were unable to cope with the ingenuity of practitioners, who even in those days delighted to drive a coach and six through that which they dare not tear in pieces. Upon these two statutes of uses and enrolments was founded the conveyance by lease and release, which, first introduced by Mr. Serjeant Moore, has endured for upwards of three hundred years, and which is even now the measure of the force and effect of modern conveyances, which it is declared, 4 & 5 Vict. c. 21, shall be as effectual as a lease and release between the same parties.

After this evasion the legislature no longer attempted to run counter to the indomitable obstinacy with which the owners of land insisted on secrecy. Perhaps, indeed, the policy of the law underwent some change; for the kingdom was then about to enter a middle period of enlightenment, but submission, before entering on the long struggle under the Stuarts, one of the 1 Preamble, 27 Hen. 8, c. 10; Bac. Reading on Uses, 313.

fairest prizes of which was the abolition of the feudal tenure and all its vexatious yet valueless incidents on the Restoration. When this tenure was abolished, the right of testamentary disposition (which the common law denied) having long before been conceded, there no longer remained any objection to requiring that openness and notoriety which the common law desired in all transactions affecting lands, except that propensity to concealment already adverted to. The ceremonious livery of seisin peculiar to feuds was indeed now no longer applicable, since all feuds were swept away; but there still remained that other part of the old Saxon formula-a memorial of the transaction might be required to be registered. But during the long period of years during which secret declarations of uses had been in vogue, so many and so complicated interests, unknown to the common law, had sprung up and been taken into cognizance, chiefly connected with the doctrines of constructive notice and terms for years, that a register of conveyances was no longer the simple matter which it had been in the old Saxon times, when springing and shifting uses and trusts, equities of redemption, statutes and recognizances, were all unknown and undreamt of. Accordingly, we find that nothing came of the various schemes for a General Registry which were brought under the notice of the legislature during the interregnum from 1649 to 1659, though special committees were sitting to inquire into the subject during every year in that time, upon which were included most of the legal authorities of the day, with Sir Matthew Hale at their head. And afterwards, in 1670, when a Bill of Registers was brought before the House of Lords in consequence (by a singular identity of circumstances with those under which the present measure is brought forward) of the recommendation of such a bill as a remedial measure by the Select Committee of that House appointed to inquire "into the decay of rents and the falling off of trade," the difficulties, theoretical or practical, were too great to be overcome. A committee was appointed to consider of a bill, with power to call in any of the judges to assist their deliberations; but no bill was ever brought forward, and the subject was allowed to drop and so down to the present time, with the exception of local acts, which are admitted to be constructed on faulty principles and with imperfect provisions, and are liable also to be now eluded, now overpowered, by the application of the doctrine of notice, actual and constructive, we remain without any endeavour at a substitute for the advantages which, in a period we look down upon as rude, persons dealing with land enjoyed. It is the Smithfield case of the wisdom of our ancestors' fallacy over again. We insist

upon a servile reproduction of what they did, although in circumstances completely the reverse of theirs. Our ancestors uniformly, and very sensibly, adopted the contrivance of secret uses, when lands (not in use) were incapable of devise, were liable to forfeiture and other feudal incidents. But why do we obstinately adhere to the same secrecy now? And further, as the advocates of the City nuisances appeal to the length of time during which the public has endured, and to the vested interests forsooth acquired by nuisance-mongers in the interim, so would those who obstruct the necessary re-establishment of a General Registry cling to all the adventitious difficulties arising from the artificial safeguards which the courts have, in the absence of a General Registry, been compelled, for the prevention of frauds, to throw around all dealings with land.

The principal of these difficulties is that caused by the doctrine of notice, already referred to. Without this doctrine, and without a Registry of deeds, there would positively be no security at all against the most manifest fraud; and yet almost the whole of the expense to which conveyances too frequently run may be clearly traced to this doctrine of notice. To it, for instance, to guard against the possible existence of a concealed deed, may be ascribed the space of time through which our titles must be traced-the minute and extravagantly expensive evidence of every fact recited or alluded to in this unwieldy train-attested copies, and so on-and also the lumber of attendant terms, now happily exterminated. It was necessary to extend the consequences of fraud to cases of constructive notice as well as actual notice, otherwise a door, impossible to be effectually barred, would have been opened to multiplied frauds, collusion, wilful ignorance. This was soon perceived; but it was not so easy to draw the limit, and define what should be deemed constructive notice, or rather what degree of knowledge or opportunity should be deemed to fall short of constructive notice. In the laudable anxiety to defeat fraud (and fraud generally of the most artful description), the courts constantly widened the boundaries; and at length, in the language of the Commissioners, constructive notice has come to include notice of every fact which the judge thinks the party himself, or his attorney, or attorney's town agent, or his attorney's clerk, or attorney's town agent's clerk, knew, or might have known, or ought to have known. Now as facts might be in themselves unimportant which it was extremely difficult to prove to be so, it came to be one of the objects of conveyancers to keep many transactions and all hints concerning them quite separate and clear from the main title, in order that the deeds containing

such arrangements might be suppressed or kept back at pleasure. And deeds might frequently be thus suppressed in perfect innocence, but in many instances they were fraudulently suppressed when their production was of the first necessity. In all transactions then the suppression of title deeds is treated as a risk to be apprehended, and therefore to be guarded against; and as it is impossible to guard against it by the simplest means, in the absence of a General Registry, purchasers are compelled to protect themselves by the most cumbrous expedients,-by lengthy abstracts, by long searches, by covenants for production of deeds, attested copies, and, until lately, by the assignment of any attendant terms. And the only reason still existing for this preference of the cumbrous before the simple is the secrecy of the conveyance; all the other reasons which existed when uses and attendant terms were first invented have long since ceased. We mean the only reason in principle; there is another and a far more important reason which we shall speak of presently, viz. the difficulty of inventing a system of General Registry which will work. If the practical application would only introduce other conveyancing securities as tedious, as expensive, and not more trustworthy, than those now in vogue, the change (since all change is in itself an evil) is to be condemned. We are persuaded, however, that the uniform opinion of all the Commissioners both in 1830 and 1850, and also of the Committee in 1832, in favour of registration, has ample grounds to support it.

The most important preliminary consideration before entering on the discussion of the form, &c. of registration, is how far the rights of parties shall be affected by the priorities appearing on the register alone; and whether any and what effect is to be attributed to notice of unregistered deeds. The present Conveyancing and Registration Commissioners recommend "that the priority given by registration to any person claiming for valuable consideration under a subsequent assurance obtained without fraud, should not be taken away in consequence of such person having been affected with notice at the time of the execution of such subsequent assurance" (1st Rep. 1850, p. 29); and they refer to the 2nd Report of the Real Property Commissioners, 1830 (p. 37, seq.), for the grounds of this recommendation, adopting the conclusion of the majority of those commissioners. And the bill now before the legislature provides against the consequences of notice only to the same extent, viz., only in cases where the first registered proprietor shall claim without fraud. "The priority given by the provisions hereinbefore contained to any person claiming for valuable considera

tion under a registered assurance shall not, as respects any person so claiming without fraud, be taken away by any court of equity in consequence of such person having been affected with notice" (s. 37). And so in s. 36; and so also the Real Property Commissioners reported the opinion of the majority of their number to a similar effect: "where the subsequent deed has been obtained by fraud, and proof of this is altogether independent of notice, registration ought not to give that deed validity." And the Commissioners thought, "that when such proof exists, registration would not prevent equity from giving relief." It would be a hard law to establish; but we think the the words "without fraud" would have been better omitted, and that not even fraud should be allowed to interfere with the priority appearing on the Register.

With all deference for the authorities above quoted, we cannot but suspect their conclusion of inconsistency. Either let private notice of an unregistered deed be sufficient, and, quà the parties affected with such notice, equivalent to actual registration; or let nothing invalidate the registration; not even fraud. For if we consider the purpose of registration, it is simply to give notice. of a certain deed; and a General Registration Act merely provides that registration, according to the provisions of the act, shall operate as notice to all the world. Where full notice already exists, registration, it may be said, is useless, the object of the act and of registration being already answered. Thus no scheme is brought forward requiring registration, as part of the ceremonies necessary for the validity of a deed as against any of the parties executing it. Why not? Because they necessarily have as full notice of the deed as they could possibly have by its registration. The same reason would seem to require the same results in all cases; and wherever full notice of a deed is given by other means to every person, it would seem that, to be consistent, we should not require such a deed to be registered in order to be valid as against that person.

But if we refuse this effect to particular knowledge of a deed, and require it to be registered, notwithstanding any private notice of its purport, it is still more inconsistent to except from the advantage of such registration any case of fraud, and most inconsistent of all, to say that such fraud shall be nevertheless some other fraud than consists only in notice of the prior unregistered conveyance. For, as we have seen, persons having already full notice of a deed, are the only persons in regard to whom registration (which is merely a formal means of giving general notice to all the world) is, as it were, a supererogatory work. They are, therefore, the only persons who ought not to

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