freehold by construction of law (x); being similar in this respect, to a conveyance under the Statute of Uses(y); but different from a descent, which vests in the heir, no complete estate, until he has made entry on the lands descended (z).

We have now adverted to all the ordinary kinds of assurance. Among which, the conveyances under the Statute of Uses, and devises, [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 leger-book of some adjacent monastery (a), and the failure of the general register established by King Richard the First, for the stars or mortgages made to Jews, in the Capitula de Judaeis, of which Hoveden has 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,] is a subject that has been very fully considered by the eminent persons who were lately appointed, under a commission from the crown, for investigation of the state of the law relative to real property; and they have recom

(r) Co. Litt. 111 a; Doe v. Lawes, 7 Ad. & El. 212. He may however, by an express act of dissent, waive the devise before entry. Ibid.

(y) Vide sup. p. 507.
(*) Ibid.

(a) Hickes, Dissertat. Epistolar. 9.

"

mended for adoption, a plan of registry, the nature and merits of which, it would be foreign to the object of the present work, to discuss. It suffices to say, that the suggestion has not hitherto been carried into effect; and that for the present, no general registry of deeds or conveyances exists in England, with the exception of the counties of York and Middlesex; in each of which a system of that kind has been long established (though it is said not with effect decidedly beneficial (b)) by authority of the legislature.

(b) Vide 2 Bl. Com. 343, where it is remarked, that "however plausible provisions for registration may appear in theory, yet it has been "doubted by very competent judges, "whether more disputes have not "arisen in those counties by the in"attention and omission of parties, "than prevented by the use of regis "ters." It may be observed, however, that the efficacy of the system has been much impaired by the interference of the courts of equity, to pre

vent its unfair application in particular cases; for though, by the register acts, a registered deed shall be preferred to an unregistered one of prior date, yet it was decreed by Lord Hardwicke (and the doctrine has ever since prevailed), that if the subsequent purchaser by the registered deed, had notice of the unregistered one, he shall not avail himself of his deed, but the first purchaser shall be preferred; 1 Ves. sen. 64; vide Christian's Blackstone, 343, (n).

CHAPTER XXI.

OF EXTRAORDINARY CONVEYANCES,

MATTER OF RECORD.

OR THOSE BY

HAVING now completed our view of all conveyances of the ordinary class, whether founded on common or statute law, we proceed next to the examination of conveyances by matter of record, which (as formerly remarked) are in use on particular and comparatively rare occasions, and which may therefore, by way of distinction from the former, be designated as extraordinary conveyances. These are, 1. Private acts of parliament; 2. Royal grants; both of which, as connected but slightly with the main body of the law, will be treated with brevity, and the rather, because our method will lead us to omit, for the present, any examination of the nature of the parliamentary and royal authorities on which they are respectively founded; these subjects having both their appropriate place under the division of the work which relates to public rights.

[I. Private acts of parliament] have been resorted to as a mode of assurance more frequently in modern than in ancient times. [For it may sometimes happen, that by the ingenuity of some, and the blunders of other practititioners, an estate is most grievously entangled by a multitude of resulting trusts, springing uses, executory devises, and the like artificial contrivances (a), (a confusion unknown to the simple conveyances of the common law,) so that it is out of the power of either the courts of

(a) Blackstone also enumerates contingent remainders; but these were known to the common law.

Claw 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, 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. 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 (b), 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 (c), 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 on the facts alleged, and to settle all technical forms. Nothing also is done with(c) Ibid. 163.

(b) Lord Clar. Contin. 162.

Lout 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 (d).

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 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(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, inrolled 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.

II. Royal grants are also matter of public record. For, as St. Germyn says (ƒ), the excellency of the sovereign is so high in the law, that no freehold may be given to, nor derived from, the crown, but by matter of record. And to this end a variety of offices are erected, communicating in

(d) 8 Rep. 138 a; Godb. 171; vide Westby v. Kiernan, Ambl. 697; Provost of Eton v. Bishop of Winchester, 3 Wils. 483; Chapman v. Brown, 3 Burr. 1626.

(e) Richardson v. Hamilton, Canc.

8th January, 1773; M'Kenzie v. Stuart, Dom. Proc. 13th March, 1754; Biddulph v. Biddulph, 4 Cru. Dig. 549.

(f) Doct. and Stud. b. 1, d. 8.