[ 342 ] 3. Defeazance. Defects of conveyances to uses. 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, and binding the lands of the cognizor, from the time of enrolment on record.s 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, 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 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 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 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 monas Stat. 29 Car. II, c. 3. See page t See page 90. 90. u Co. Litt. 237; 2 Sand. 47. tery ; and the failure of the general register established by King Richard the First, for the starrs or mortgages made W to Jews, in the capitula de Judacis, of which Hoveden has [ 343 ] 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, de serves to be well considered. In Scotland every act and event, regarding the transmission of property, is regularly 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 legislature 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. The establishment of a general registry for all deeds relating to real property has however been recommended by the Real Property Commissioners in their second report; and a bill, founded on their recommendation, has been several times introduced into parliament, but never hitherto with success. Hickes Dissertat. epistolar. 9. w Dalrymple on Feodal Property, 262, &c. * Stat. 2 & 3 Ann, c. 4; 6 Ann, c. 35; 7 Ann, c. 20; 8 Geo. 2, c. Assurances by matter of they are. CHAPTER THE NINTH. OF ALIENATION BY MATTER OF RECORD. ASSURANCES by matter of record are such as do not enrecord, what tirely 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 rocoveries. Which last two assurances have been recently abolished. 1. Private acts of Parliament. Objects ed by them. 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 usually effect 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, 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; to enable him to raise money for the [345] payment of necessary repairs, 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 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 intitled 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, 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. b are proceeded in with cau tion. Acts of this kind are however at present carried on, in Private acts 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 [346] Are looked A law, thus made, though it binds all parties to the bill, is yet looked upon rather as a private conveyance, than as the solemn act of the legislature. It is not therefore al- veyances. a Lord Clar. Contin. 162. L Ibid. 163. c Co. 138; Godb. 171. upon as con II. The king's grants. Must first pass by bill. lowed 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 for ever preserved as a perpetual testimony of the conveyance or assurance so made or established. f II. The king's grants are also matter of public record. For, as St. Germyn says, 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 ought besides, are contained in charters, or letters patent, that is, open letters, literae patentes: so called because they are not sealed up, but exposed to open view, with the great seal pendent 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, literae clausae; 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 con[347] sequence of a warrant from the crown; and is then signed, that is, subscribed at the top, with the king's own sign Canc. e 4 Rep. 12. f Dr. & Stud. b. 1, d. 8. d Richardson v. Hamilton. |