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on app. Sugd. Vend. 701); in which case either Evidence registers or court rolls will be notice. In some verify the
Abstract. manors, surrenders of copyholds made out of court may be presented at any time, and a second incumbrancer, who has searched the rolls, does not gain priority over the first by an earlier inrolment of the surrender to himself, or of his own admittance. He is considered to be acquainted with the custom: Horlock v. Priestley, 2 Sim. 75. It may often be advisable to search the rolls of the Central Registry for assurances inrolled under the provisions of the Fines and Recoveries Act, and also the index of the certificates of acknowledgments of married women under the same Act.
Inquiry should also be made in the case of copy - Inquiry as to holds or customary freeholds, as to the customs of
custom of t.ie the manor with regard to permitting entails, the granting of leases, descent, &c., also as to fines, heriots, and quit or other rents.
The duty of searching for incumbrances of course As to searchdevolves upon the purchaser's solicitor, he having cuntrances.
ing for inbeen apprised by his counsel advising upon the title by what incumbrances the estate is liable to be affected. Complete safety is only to be found in searching for every such incumbrance, though the list of them is somewhat formidable, comprising writs of execution registered under 23 & 24 Vict. c. 115, and 27 & 28 Vict. c. 112, judgments, Crown debts, accountantships to the Crown, decrees, orders, lis pendens, registered under 1 & 2 Vict. c. 110, and 2 & 3 Vict. c. 11, and annuities and rent charges registered under 18 & 19 Vict. c. 15, recognizances, annuities, and rent charges registered under earlier acts, and for adjudications in bankruptcy, and deeds of composition; also the county registers and court rolls of the manor, where necessary, and in some cases for drainage and land improvement loans, at the office of the land commissioners(a). Sometimes it may be prudent to ascertain the non-existence of all these. Often, however, the rank and situation in
d. The office of the Land Commissioners is at No. 3, St. James' Square.
Evidence necessary to
life of the parties are such as to render the precauverify the tion with respect to some of the points of inquiry Abstract. superfluous. For instance, no person would think
of searching the bankrupt office, where the vendor was a person of known opulence and respectability; but, unless in very obvious cases of this kind, the searches should be made; or, if they be omitted at the desire of the purchaser himself, his solicitor should obtain his written authority for dispensing with them. The responsibility often incurred by the neglect of this precaution is very serious; the effect is to transfer the risk from the purchaser himself to the solicitor, though the sole object of the latter in avoiding the search may have been to prevent expense to his client. See Brooks v. Day, 2 Dick. 572; Ireson v. Pearman, 5 Dowl. & Ry. 687 (d). Probably, few persons would be disposed to press their claim under such circumstances; but a prudent man will scarcely be satisfied to rest his security on the existence of an honourable feeling of this kind.
In the case of a vendor, who is simply seised in fee, the purchaser's first concern will be to ascertain the non-existence of judgments against him, and of
writs of execution issued thereunder. Judgments. The search for judgments extended formerly
to judgments against all the persons to whom the property has successively devolved for a long series of years (say twenty or thirty), commencing, not from the time at which they severally acquired the estate, but at the remotest period at which judgments might have been entered up against them. At common law only the goods and chattels of a debtor and the growing produce of his lands could be seised by a creditor on a judgment, but by the Statute of Westminster 2 (13 8d. 1, st. 1, c. 18), the creditor was entitled to take in execution one moiety of the debtor's lands (e). For an account of the state of the law with regard to judgments before
(d) See also Whiteman v. Hawkins, 4 C. P. D. 13, which was a case of negligence in not requiring the production and delivery of certain deeds affecting the property.
(e) Estates tail, copyholds and advowsons in gross were not extendible under this statute : 3 Bac. Abr. 382; 3 Co. 9; Ashburnham v. St. John, Cro. Jac. 85.
the year 1838, reference may be made to Prideaux Evidence
necessary to on Judgments, pp. 1–57; Sugd. Vend. pp. 516 et seq., verify the and Dart, V. & P. pp. 457 et seq.
In that year
Abstract. the stat. 1 & 2 Vict. c. 110, was passed, by which it Stat. 1 & 2 was enacted that
Vict. c. 110.
Sect. 11. “It shall be lawful for the sheriff or other officer to Sheriff may shom any writ of elegit, or any precept in pursuance thereof, tion of lands,
deliver exécue shall be directed at the suit of any person, upon any judgment &c., to judg
ment creditor, which at the time appointed for the commencement of this Act shall have been recovered, or shall be thereafter recovered, in any action in any of her Majesty's Superior Courts at Westminster, to make and deliver execution unto the party in that behalf suing of all such lands, tenements, rectories, tithes, rents, and hereditaments, including lands and hereditaments of copyhold or customary tenure, as the person against whom execution is so sued, or any person in trust for him shall have been seised or possessed of at the time of entering up the said judgment, or at any time afterwards, or over which such person shall at the time of entering up such judgment, or at any time afterwards, have any disposing power which he might, without the assent of any other person, exercise for his own benefit.”
Sect. 13. “A judgment already entered up or to be hereafter Judgment entered up against any person in any of her Majesty's superior a charge on
to operate as courts at Westminster shall operate as a charge upon all lands, real estate. tenements, rectories, advowsons, tithes, rents, and hereditaments (including lands and hereditaments of copyhold or customary tenure), of or to which such person shall at the time of entering up such judgment, or at any time afterwards, be seised, possessed, or entitled, for any estate or interest whatever, at law or in equity, whether in possession, reversion, remainder, or expectancy, or over which such person shall at the time of entering up such judgment, or at any time afterwards, have any disposing power which he might, without the assent of any
person, exercise for his own benefit, and shall be binding as against the person against whom judgment shall be so entered up, and against all persons claiming under him after such judgment, and shall also be binding as against the issue of his body, and all other persons whom he might without the assent of any other person cut off and debar from any remainder, reversion, or other interest in or out of any of the said lands, tenements, rectories, advowsons, tithes, rents, and hereditaments; and that every judgment creditor shall have such and the same remedies in a court of equity against the hereditaments so charged by virtue of this Act, or any part thereof, as he would be entitled to in case the
Evidence necessary to verify the Abstract.
person against whom such judgment shall have been so entered up had power to charge the same hereditaments, and had by writing under his hand agreed to charge the same with the amount of such judgment debt and interest thereon. Provided that no judgment creditor shall be entitled to proceed in equity to obtain the benefit of such charge until after the expiration of one year from the time of entering up such judgment . . . . nor shall such charge operate to give the judgment creditor any preference in case of the bankruptcy of the person against whom judgment shall have been entered up unless such judgment shall have been entered up one year at least before the bankruptcy .... Provided also, that nothing herein contained shall be deemed or taken to alter or affect any doctrine of courts of equity whereby protection is given to purchasers for valuable consideration without notice."
With regard to the above sections Lord St. Leonards observes: “The enactment that the judgment shall operate as a charge upon the estate means a charge upon the beneficial interest of the debtor. If he has a legal estate, subject to an equity, it will be a charge upon the estate, subject to the same equity; in the case of an equitable interest, it will be a charge upon the equitable interest. Therefore an equitable mortgagee must be preferred to a subsequent judgment creditor, who will be prevented from executing his judgment as against the mortgagee although he had not notice of the mortgage when he obtained his judgment :” Sugd. Vend. p. 527; and see Whitworth v. Gaugain, 1 Phil. 728; 3 Ha. 416; Kinderley v. Jervis, 22 Beav. 1; Benham v. Keane, 1 J. & H. 685.
The effect of the provision as to bankruptcy in sect. 13 of stat. 1 & 2 Vict. c. 110, is to give validity to judgments as equitable charges, notwithstanding the subsequent bankruptcy of the debtor, provided a year intervenes between the entering up of the judgment and the bankruptcy. A purchaser from a trustee in bankruptcy must in all cases search the central registry, commencing at a period of five years next preceding the time of his search, and carrying on the search from that time to the beginning of the
year next preceding the bankruptcy. (See further on this subject, infra, p. 126.)
The question was formerly much discussed Evidence
necessary to whether leaseholds were bound by the judgments verify the equally with freeholds under this Act; and in the
Abstract. last edition of this work a doubt was expressed upon this point. Lord St. Leonards considered that leaseholds were certainly bound, and his view, which was generally adopted by the profession, received judicial confirmation in the cases of Ilarris v. Davi8on, 15 Sim. 128, and Avison v. IIolmes, 1 J. & II.
In order that further protection might be afforded Stat. 2 & 3 to purchasers against judgments, Crown debts and Vict. c. 11. lis penilens, it was enacted by the stat. 2 & 3 Vict. c. 11:
Sect. 4. "That all judgments of any of the superior courts, Judgments decrees or orders in any court of equity, rules of a court of after five coinmon law, and orders in bankruptcy or lunacy, which since the years from
registration passing of the said recited Act of the first and second years of the to be void
against lands, reign of her present Majesty have been registered under the unless a fresh provisions therein contained, or which shall hereafter be so memorandum registered shall after the expiration of five years from the date of the second entry thereof, be null and void against lands, tenements, and other hereditaments as to purchasers, mortgagees, or creditors, unless a like memorandum or minute as was required in the first instance, is again left with the senior master of the said Court of Common Pleas(e) within five years before the execution of the conveyance, settlement, mortgage, lease, or other deed or instrument vesting or transferring of the legal or equitable right, title, estate, or interest in or to any such purchaser or mortgagee for valuable consideration, or, as to creditors, within five years before the right of such creditors accrued, and so toties quoties at the expiration of every succeeding five years; and the senior master shall forth with re-enter the same in like manner as the same was originally entered; and such officer shall be entitled for any such re-entry to the sum of one shilling."
Sect. 5. "That as against purchasers and mortgagees without Judgments notice of any such judgment, decrees or orders, rules or orders duly regisas aforesaid, none of such judgments, decrees or orders, rules or affect purorders, shall bind or effect any lands, tenements, or heredita- chasers, &c.
otherwise than ments, or any interest therein further or otherwise or more exten- judgments of
courts would (d) 3rd edition of this work, vol. i. p. 107, and vol. v. p. 48; see also Sugd. Vend. p.
536. (e) Now at the Central Office.
tered not to