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Kings Bench, is appointed a register for Middlesex, instead of the chief clerk.
By these statutes, deeds, conveyances, and devises by will shall be void against subsequent purchasers and mortgagees, unless registered before the conveyances under which they claim; also no judgment, statute, or recognizance, shall bind any lands in those counties, but from the time a memorial thereof shall be entered at the Registeroffice. But the acts do not extend to copyhold estates, leases at rack-rent, or to any leases, not exceeding twenty-one years, where the possession goes with the lease; nor to any chamber in the inns of court.
The intention of the register act plainly is to secure subsequent purchasers and mortgagees against secret conveyances and fraudulent incumbrances (a).
Where a person had no notice of a prior conveyance, there the registering of his subsequent conveyance shall prevail against the prior; but if he had notice of a prior conveyance, then that was not a secret conveyance by which he could be prejudiced. The enacting clause which says "that every such deed shall be void against any subsequent purchaser or mortgagee, unless the memorial thereof be registered for gives them the legal estate, but does not say that such subsequent purchaser is not left open to any equity which a prior purchaser or incumbrancer may have; for he can be in no danger where he knows of another incumbrance, because he might then have stopped his hand from proceeding.—The operation of the register act 7 Ann. c. 20. and that for the enrollment of bargains and sales 27 H. 8. and the construction of them, are the same; and it would be a most mischievous thing, if a person taking advantage of the legal form appointed by an act of parliament, might under that protect himself against a person who had a prior equity, of which he had notice (a).
The register act is notice to every body, and the meaning of it was to prevent parol proofs of notice (b). It is only in cases of fraud that the Court of Chancery have broke in upon the act, although one incumbrance was registered before another: and though clear notice is a proper ground of relief, suspicion of notice will not suffice.
A registered conveyance therefore, of premises in Middlesex for a valuable consideration, was established against a prior devise not registered; the evidence of notice, which ought to amount to actual fraud, not being found (c).
But notwithstanding that it was said that the register act is notice to every body, registration in Middlesex of an equitable mortgage was held not presumptive notice of itself to a subsequent legal mortgagee, so as to take from him his legal advantage (d).
So, after an assignment of a mortgage, payments to the mortgagee without notice, must be allowed by the assignee; the registry (the premises being in Middlesex), not being notice for this purpose (a).
Registering an assignment is not registering the lease. Therefore, where the defendant claimed under a lease made in 1730, which was soon after mortgaged, and in 1731, sold out and out to the defendant; the original lease was not registered, but the first mortgage of it, and the defendant's purchase, were: and it not being a lease ;.t rack-rent, the question was, whether this was a registry within the meaning of 7 Ann, c. 20? and the Chief Justice (Holt) held it not to be sufficient; for the act says the deed under which the party claims, with the witnesses names, shall be registered; and of this a subsequent purchaser can have no notice by the bare registry of the assignment, and it is also required that the original be produced to the officer (b).
On a proviso in a lease of lands of the Duchy of Lancaster, according to stat. 27 H.S.e. II. that it should be enrolled with the auditor; the certificate of the auditor on the margin was held to be sufficient evidence of the enrollment (c)..
If a memorial is executed by any party to a deed, resident in the metropolis, whether it be grantor or grantee, and it is convenient to the witness to attend at the registering office, the oath of such execution is administered verbally, in the following terms: "You swear that you saw this memorial signed and sealed, and the deed to which it refers duly executed by the party (or parties) thereto, whose execution you have attested (d):" and it is not necessary, in such case, to affix an affidavit stamp, or any other, to the parchment on which such memorial is written. But if the memorial is necessarily executed by all parties in the country, and there sworn, the affidavit must be engrossed on the proper stamp, and may be either written under, or annexed to, the memorial. It must be on parchment, and its form will be found among the precedents in the Appendix.
It being often found more convenient to obtain the registry of an instrument by a representative of a deceased party, under some one of the designations of heir, executor, administrator, guardian, or trustee, than by any of the survivors, who, if grantors, may perhaps hesitate to do justice; and as the direction of the act does not convey a very distinct idea of the manner in which the registry by such representative is to be effected, it may be useful to premise, that the instrument to be registered, notwithstanding it is already sufficiently executed for general legal purposes, must, in addition, be sealed and delivered by the person requiring the registry, as if he was a party in his own right (d); and such person must also sign and seal a memorial, which
(a) Williams v. Sorrell. 4 Ves. 389. (*) Honeycomb d. Halpen v. Waldron i Str. 1064
(c) Kinnersley v. Orpe. 1 Dougl- 56. (J) Rigge on registering Deeds. 74.
will be varied from the usual form where it refers to witnesses. [See Appendix.] An alteration in this case is to be written under, or indorsed on the instrument in the following terms: "Sealed and delivered by C. D. one of the executors (or otherwise) of the withinnamed A. B. (for the purpose of registering), in the presence of ." In respect to the parties to the deed residing out of town, if such deed appears properly executed and attested, the proof of its execution, and that of the memorial by any one of the parties (consonant to the form of oath contained in the preceding paragraph) will render any affidavit from the country useless: neither is it material that the witness should see the same party execute the deed who signs and seals the memorial; for instance, if the deed be made from A. to B. and the witness attests the execution of the deed by the former, his seeing the memorial executed by B. will suffice. It will be requisite, however, in such memorial to state the other attestation (or attestations, if more than one,) to the deed, with the descriptions of all the witnesses. [For more particulars respecting these acts, the reader is referred to Mr. Riggfs Observations on the Statutes for registering Deeds.]
A lessee of land in the Bedford Level cannot object to an action by his landlord for a breach of covenant in not repairing, that the lease was void by the stat. of 15 Car. a. c. 17. for want of being registered, such act, enacting that "no lease, &c. should be of force, but from the time it should be registered," not avoiding it as between the parties themselves, but only postponing its priority with respect to subsequent incumbrances registering their titles before (a).
(0) Hudson v. Sharpc 10 East, Mo.
Section I. Of Agreements for Leases, and the Remedies
Section II. Of Stamps required to Leases and Agreements.
Section I. Of Agreements for Leases, and the Remedies
TT7 E have already seen that where an agreement for a lease con* * tains words of present demise, and there are circumstances from which it may be collected that the tenant was meant to have an immediate legal interest in the term, such an agreement will amount to an actual lease; and also, on the other hand, that, although words of present demise are used, yet if it appears on the whole, that no legal interest was intended to pass, and that the agreement was only preparatory to a future lease to be made, the construction will be governed by the intention of the parties, and the contract will be held not to amount to more than merely an agreement for a lease, which equity will enforce.
An agreement to lease at a certain rent, and that the lessor should not turn out the tenant so long as he paid the rent, and did not sell, &c. any article injurious to the lessor's business, creates only a tenancy from year to year, determinable by either party giving a regular notice to quit, for it must otherwise operate as a lease for life, which cannot be created except by deed (a).
It was formerly held that an agreement for a lease formed as valid a defence to an action of ejectment as a lease itself would do; but it is now clear that an agreement for a lease cannot in any case avail at law after a regular notice to quit (b).
An agreement to make a lease is a good lease in equity, and a confirmation of such lease by him in remainder is a good lease. Hamilton v. Lady Cardress, H, Brown's Cas. in Pari, by Tomlim.
An agreement for a lease from a dean and chapter, executed by the dean for himself and chapter, though signed by him only, shall bind the chapter notwithstanding (c).
If an agreement be by A. B. and C. to make a lease, and it is executed by A. it shall be decreed that B. and C. who were the sons of A. shall execute it, though the agreement was by parol; for it was out of the statute (d).
With respect to parol agreements, it is an established rule (e), that a parol agreement, part performed, is not within the provisions of the statute of Frauds, but will be decreed to be executed by a Court of Equity; for where a part of the agreement is performed on one side, it is but common justice that it be carried into execution (f). Plea, therefore, of the statute of Frauds to a bill for discovery of a parol agreement, part performed, will not be allowed. So a parol agreement, confessed or in part executed, is binding (g).
As to what acts amount to a part performance, the general rule is, (A) that the acts must be such as could be done with no other view or design than to perform the agreement, and not such as are merely introductory or ancillary to it. A tender of conveyances, therefore, is not part performance of an agreement; it must be something in actual execution of the contract, not merely towards the execution: thus, in a letter, "I will give 16,500/." answer, "I will not take less than 17,000/." answer returned, "I will give 17,000/." this is not an agreement executed in writing within the Statute of Frauds (a).
(a) Doe d. Warner v. Brown. 8 East, 165.
(i) Weakly d. Yea v. Bucknell. Cowp. 473- Goodtitle d. Estwick v. Way. 1. T. R. 735- Doe d. Hodson v. Staple. *.T. R.684. Roe d. Read v. Read. 8 T. R. 118-123.
(O Com. Dig. tit. Agreement. Dean and Chapter of Ely v. Sir Simeon Steward, z Atk.
(d) Heighter v. Sturman. 1 Vcrn.
(r) Whitchurch v. Bevis. % Bro. 566. Walker v. Walker, 2 Atk. Earl of Aylesford's Case. % Str. 783.
(/) Sewell v. Bridge. I Ves. 497.
(g) Potter v. Potter. Ibid. 437-41.
(i) Gunter v. Halsey. Ambl. j86.
a 10. Rep. 100.
Delivery of possession, however, or payment of money, is a part performance of an agreement not reduced into writing (b) : for delivery of possession by a person having possession to the person claiming under the agreement is a strong and marked circumstance (c).
Thus, upon an agreement for the surrender of a term where the lessor accepts the key, he shall be bound to accept of the surrender (d). —But though taking possession, or such other act in pursuance of an agreement, is sufficient evidence to have the agreement decreed, yet the circumstance of vendees ordering conveyances to be drawn in pursuance of a parol agreement, and going several times to see the premises, and a letter from the vendor, mentioning the agreement, but not the price, will not induce the Court to decree a performance; nor will sending an appraiser to value the thing agreed for (e).
So in another case, it is said that where a man, on promise of a lease to be made to him, lays out money in improvements, he shall oblige the lessor afterwards to execute a lease, because it was executed on the part of the lessee (J).
Therefore (g), where a lessor made a verbal promise to his lessee to secure him in the possession of the premises during the lessee's life, in consequence of which promise the lessee made considerable alterations and'improvements, and after the lessor's death, a memorandum of this promise was found among his papers, wherein he expressed a hope that the same would be observed. Lord Tburlow held that the memorandum took the case out of the Statute of Frauds, and directed a lease to be made for ninety-nine years, determinable on his life.
But the bare entry of a steward in his lord's contract book with his tenants is not an evidence of itself that there is an agreement for a lease between the lord and one of the tenants, but must be sup ported by other proo/ (h).
Plaintiff, pursuant to a parol agreement for a building lease of Wildhouse, had proceeded to pull down part and build part. Before any lease executed, the owner of the soil died. The defendants, his representatives, knew nothing of the matter, and insisted on the Statute of Frauds. The Lord Keeper dismissed the bill, but on appeal