The Sun.
London, England, 1830-09-07 00:00:00

value subsequently registered; but to encourage
registration, and to give the volunteer fair means of
notice, we think that the purchaser should be re-
quired register his conveyance before instituting
Proceedings against the volunteer.
We think that voluntary grants should be regis-
tered, to enable the parties to sustein them even as
against the grantor; and that between volunteers
priority should be given according to the date of
registration.
We think that the general assignments in Bank-
• ruptcy and under the Insolvent Debtors' Act, should
not of themielves defeat an unregistered conveyance:
it will besufficient to. put these, with respect to re-
gistration, on the footing of a voluntary, conveyance
from-the bankrupt.. . •
We think. that a registered. conveyance for value
frost a person entitled under a voluntarY grunt' re-
gietered, orfrom assigneets in, case of bankruptcy or
insolvency, should hoe_ the full benefit of, the Re-
gister, and should, prevail, against an unregistered or
,übsequently registered conveyance from the Original
grantor. This ,will be agreeable to the presiot
• • :The protection to be afforded. by, the Register
being, according to our proposal, to 'be made inde-
pendent of 'notice, an important question arises,
whether actual notice of an unregistered deed should
deprive parties of the benefit of the 'Register. It
would be a very simple plan tisevade altogether the
question of notice, or to reduce it within Very nar-
row limits, by making registration, essential to con-
veyance, as sealing is en essential .part of, a dead, or
by making registration within a limited ;peried ne-
cessary, in order that the deed should be finally ef-
fectual, as inrolment within six months is necessary.
With regard to a bargain and sale; but without de-
termining whether such an enactment would I.e con-
sonant to the spirit of our law,- and eipediant on
general principles, we are of opinion that itcould
not be safely made at, the introduction of a system
of general registration. We thipk, thereforealtat
*u• as between, theties instruments executetl frOfs,
!liable consideration should hays full farcewithout
being registered: and that, Shiterule should operate
againsuthose who claim fro* the grantor by the act
of law as in case of descent. or by his voluntary gift.
As between claimants far value, the, lineation with
respect to the proper effect to be attributed to notice
of a prior unregistered deed is one Of great dilliculty,
and upon which the opinions of able and experienced
men are divided.
A majority of your Majesty's Commissioners have
arrived at the conclusion, that it is on the whole ex-
' pedient that actual notice of an unregistered deed
should not affect the priority of a registered deed
for valuable consideration, either at law or in equity.
' We think it proper to state the reasons, which we
' believe may be adduced on each Bide of this ire-
; portant question, in the hope that the right decision
may be ultimately come to.
• The reasons against expressly denying effect to
notice, seem to be in substance as follows ;--One of
the chief ultimate objects of law is to protect against
fraud. Now it is necessary for the guidance of
men in the ordinary conduct of their affairs, that the
rules of law should be clear and strict; but to defeat
contrivances in whatever form they may he devised
for taking unfair advantages of the strict rule, the
jurisdiction to relieve against fraud should not be
strict, but large. The principal object of a Register
i• is to protect fair purchasers against prior secret
deeds ; this protection is not wanted against a deed
which is known. The man who assists a fraudulent
seller or mortgagor in defeating a fair purchaser, is
not himself's' fair purchaser, and a law which should
assist him against a fair purchaser. would be a law its
favour of fraud; the fraud indeed would be of an
aggravated nature, as it would have the character
of conspiracy. Although no person might be in-
duced to pay the full value of an estate under such
circumstances, or actually to advance money upon it
es a security on lawful terms, advantages might he
held out to a purchaser, and especially the property
might be given in discharge of an existing debt or
made a security for it ; in which case the temptation
to the debtor to release himself from immediate
pressure might be irresistible, and the creditor might
take without scruple whatever he could get float
the debtor to satisfy a just demand. Ignorance,
forgetfulness, improvidence, and hurry, frequently
occasion the neglect of forms, though simple and of
the utmost itnportunee, each as inrolmente of bar-
gains
and sales, surrenders and admittances in casts
of eopyholds, presentment* of customary deeds, the
forms of execution awille, of lands and of
.powera,
and many other forms; and such neglect is
liarly liable to happen in small transactions, which
are entitled to the protection of the law no less, and
perhaps require it more, than those of magnitude.
fhe registration of deeds, too, roust be intrusted by
parties to their professional agents, who, it is to be
expected, would be sometimes careless or forgetful,
and sometimes wilfully or corruptly tiegligemt ;
that whatever care were taken to snake known the
stew law and to facilitate compliance with its rrw.
visions, neglect of registration would occasionally
happen, and every instance in which a person with
full notice should by means of the new law defeat a
just purchaser, would be considered as a proof of
the unjust rigour of the law, and tend to render it
e
odious. Again, as dealings on confidence would still
be carried on without registration, a dangerous tempta-
tion to the abuse of such confidence would be created.
Besides, there must be some term, however simple,
essential to the validity of registration, and mistakes
in this respect must be liable to happen, however
rarely. Again, even although reasonable diligence
were used, and especially if delay occurred in regis-
tering a deed, there might be an interval in which
superior activity might gain priority for k arotsuuwlisseit
ths
quest deed. This if done in order to defeat a fast
rightis,
:t tle
Courts would
o bef
Equity n h
fraud. Otitsti,li
ie country, and
also in Ireland, have determined that actual notice
of an unregistered purchase deed shall deprive a
purchaser of the bens-fit of his registry, fraud being
by some of the Judges expressly stated as the
grounds of these decisions, and the same rule pre-
vails generally in the United States of America.
As fraud is the ground on which it is proposed
to give effect to actual notice against registry, it ap-
pears to be generally agreed, that no such effect
ought to be given to notice by construction of law,
which is no proof of kneVeledge, nor even raises a
fair presumption of it; and it is contended by those
whu think that the effect of actual notice should not
be taken away, that sufficient guard would be
provided against effect being given to constructive
notice, if the preference to be given to deeds
according to priority of registration were enacted.
in strong terms, with an express saving of the
jurisdiction of equity in cases of fraud; or if there
were a provision, that notice simply or notice
,by
constructioo of law should not affect the rule of -
priority without actual fraud; and further, that
there are many cases of fraud, of which notice is an
ingredient, which must 'nape the jurisdiction of
equity, Si', in consequence of en express enactment
that notice should not have the proposed effect, it
came to be considered as not an ingredient tOWtik`litt
constituting a case of fraud.
It is contended on the same side, that a state-
ment which has bean brought forward, that the
effect given to notice hue materially impaired the
benefits of the Registers *lewdly established, is
not founded in feet ; that cases in this country and
them, bare
in Ireland, in which an unregistered deed has pre-
her means
11:ieuslitdethethesanhloopene
veiled against a registered deed by nid of ti to
anti iu Ireland.
doctrine of notice, are net so numerous as to have
had much effect in producing neglect of registra-
gofiecotbttissiniiingu
tion, and that very few, if any of
neglect‘t.orkethat
f re g injustice
isteriinigt e
in ytosarkrt.iiciitrilea,raiiideatie‘ille:
protection from notice, have probably occasioned
likely to happen when registering;
shall be univer-
sal, and shall be put on
ins Improved footing, and
its benefits shall be fully understood; that in fact
the hope of ssi (aping from the loss of an estate
through the means of a CI tancery suit, and wily in
case knowledge of the deed shall be brought home
to another party, is not likely to feed to messy eases
ul neglect of registration; and forsher, thin. should