themselves, yet eminently useful in their effects. A fine was considered as only barring the issue of a tenant in tail, and not the remainderman, whilst a recovery barred every estate in remainder or reversion. The latter, therefore, was generally used, though the former (being less expensive) was resorted to when possible: it was the invariable mode used for a conveyance by a married woman. It will be seen that, as the action must be against the tenant of the freehold in possession (subject only to terms of years (k) ), a tenant in tail could not suffer a recovery whilst there was a preceding life estate, not, in fact, until his estate was in possession.

All this method of dealing with these interests has been abolished by the legislature (1). We can here only shortly notice the provisions of this most useful act which accomplished this. The substance of them may be stated as follows:

assurances.

Every actual tenant in tail (including every person who has only [* 543 ] a right to be such) may now (m) dispose of the lands (n) entailed, for Disentailing an estate in fee-simple, or any less estate, or for any limited purpose (0), or against all persons claiming the lands by virtue of the entail, and also as against all persons (including the crown) whose estates are to take effect after the determination, or in defeasance of the estate tail (p). The deed by which the disposition is made must be inrolled in chancery within six calendar months after its execution (q). The power is not to be exercised by any woman tenant in tail of lands within the provisions of 11 Hen. 7, c. 20 (i. e., tenants in tail ex provisione viri), except with such assent as would under that statute have been necessary to a fine or recovery (r); but as no settlement was to be made in future under the Act of Hen. 7, this exception has now scarcely any meaning except in reference to a few old settlements.

Another restriction extends to tenants in tail who, under the "act to embar feigned recovering of land wherein the king has the reversion (s)," are restrained from barring their estates tail; that is, persons on whom lands have been conferred by the crown in tail, as a reward for public services (t), also tenants in tail after possibility of issue extinct are restrained from converting their estate into a fee-simple (u). The act specially provides (x) that issue in tail, having therefrom merely an expectant interest, are to have no power to dispose of the lands in respect of that interest.

*We may remember that a tenant in tail in remainder could not, [* 544] at least without the concurrence of the tenant of the freehold in possession, suffer a recovery, though he could levy a fine. An incapacity of a similar character has been created by the act, which constitutes, with this view, a protector of the settlement, as he is termed. The owner of the first estate for years, determinable on lives, or any greater estate prior to the estate tail, is made the protector (y); or the person (if any) who

Protector of a settlement.

is appointed by the settlor for the purpose. The protector must, in order that the disposition by the tenant in tail may be valid to bar remainders and reversions, give his consent to the disposition, either by the deed itself, or by a distinct deed to be executed on or before the day on which the assurance is made. And the protector's consent must also be enrolled either at or before the time when the assurance is enrolled.

The protector is to be absolutely free to determine whether he gives his consent or not, and is not to be looked upon in any manner as a trustee in respect of his power of consenting (z).

Tenant in tail may create a base fee without

If no consent by the protector be given, then the tenant in tail can only create a base fee, but he may enlarge this after the estate has fallen into possession, or sooner, if he can at any time obtain the protector's consent (a). The disposition by a tenant in tail must be by consent of pro- deed, and not will, and must be a conveyance and not a mere contract; and no contract by a tenant in tail is to have any effect either at law or in equity, even if by deed; and if the tenant in tail be a married woman, her husband must concur (b).

tector.

The act provides for the disposition of the property of a bankrupt tenant [* 545] in tail for the benefit of his creditors (c). It also enacts that the previous provisions shall apply to copyhold lands, except that if the estates be legal the assurance shall be by surrender instead of deed, and the deed of consent of the protector is to be entered upon the court rolls, or evidence of the consent, if given by joining in the surrender, is to be preserved on the court rolls (d). The deed, if any, by which an equitable tenant in tail disposes of his lands is to be entered on the court rolls within six months after its execution (e), but enrolment in chancery is not necessary (f).

The provisions of the act remaining to be noticed are those by which a married woman may dispose of her lands or any interest in them. For fines, Conveyances by which were previously the method adopted for this purpose being married women. abolished, it became necessary to substitute another process. The act, therefore, declares that a married woman (in every case except that of a tenant in tail, for which provision had already been made), may, with her husband's concurrence, dispose of lands of any tenure, and money, subject to be invested in the purchase of lands, or arising from the sale of land (g), and also dispose of, release, or extinguish any estate which she may possess in lands of such money as aforesaid, as fully as if she were a feme sole, but every deed by which she so deals with her property shall upon her executing the same, or afterwards, be produced and acknowledged by her to be her deed before a judge, or before any two of the commissioners appointed knowledged be for the purpose, of whom there are a large number in various parts of the country (h). This part of the act is not, however, to extend to copyholds in any case in which the husband and wife might previously have dealt with them by surrender; and any powers which a married

Deed to be ac

fore a judge, &c.

(z) Ss. 36, 37.

(e) S. 53. Honywood v. Forster, 30 Beav. 1; (a) Ss. 34, 35, 38. See as to the last section, Gibbons v. Snape, 1 De G. J. & S. 621. Crocker v. Waine, 5 B. & S. 697. (f) S. 54.

(b) Ss. 40, 47.

(g) Franks v. Bollans, L. R. 3 Ch. 717. See

(c) Ss. 56, 57, 58, adopted by 32 & 33 Vict. Crofts v. Middleton, 8 De G. M. & G. 192. c. 71, s. 25.

(d) Ss. 50, 51, 52.

(†) Ss. 57, 58, 59. See as to these, the act 17 & 18 Vict. c. 75.

woman

act (i).

*might otherwise exercise are not interfered with by the

[* 546]

We have given but a bare outline of this statute, but sufficient for our present purpose; we may add that the act having been drawn in a masterly manner, has given rise to fewer difficulties in its application than usually occur when revolutions are effected by parliament. The enrolment in chancery seems to have been adopted as giving an additional selemnity to the deed disentailing the estate, but inasmuch as its only effect is to create an additional expense, it is not very clear why even this might not be dispensed with.

Before we conclude this chapter, we may with propriety add a few remarks on certain deeds which do not, it is true, affect land directly, yet which formerly had much, and still have some effect upon the title of lands when in the hands of devisees or heirs, or in other words, which create, or may create, what the law calls a specialty debt. Their importance, however, is very shortly to These are bonds and covenants, the nature of which is

Bonds and covenants.

cease.

the same, though the form is usually different. An obligation or bond is a deed whereby the obligor declares himself, and usually his heirs, executors, and administrators, bound to pay a certain sum of money. The language in which this is expressed is immaterial, so that the meaning be clear (k).

*

If this be all, the bond is called a single one, simplex obligatio: and the bond is scarcely distinguishable from a covenant; but there is generally a condition added, that, if the obligor does some particular act, the obligation shall be void, or else shall remain in full force: as payment of rent; performance of covenants in a deed; or repayment of a principal sum of money borrowed of the obligee, with interest, which principal sum is usually one-half of the penal sum specified in the bond. In case this condition is not performed, [* 547 ] the bond becomes forfeited, or absolute, at law, and formerly the whole amount of the penalty could be recovered though equity interposed to prevent the creditor getting more than the amount of principal, interest, and costs, and this now is all that a court of law will give (1) where the bond is given. te secure a sum of money and interest; and if it be given for other purposes, then only the amount of damages which a jury will assess can be recovered (m), and this is limited to the amount of the penalty.

The condition or defeazance is usually contained in the deed or bond itself; it may, however, be a separate and subsequent deed (n).

If the condition of a bond be impossible at the time of making it, or be to do a thing contrary to some rule of law that is merely positive, or be uncertain, or insensible, the condition alone is void, and the bond shall Effect of an impossible or stand single, and unconditional: for it is the folly of the obligor illegal condition. to enter into such an obligation, from which he can never be released. If it be to do a thing that is malum in se, the obligation itself is void: for the whole is an unlawful contract, and the obligee shall take no advantage from such a transaction. And if the condition be possible at the time of making it, and afterwards becomes impossible, by the act of God, the act of law, or the act of the obligee himself, there the penalty of the obligation

(i) S. 78.

(k) Vin. Ab. Obligation, L.; Debt, D.; Cro. 54. El. 268.

(7) 4 & 5 Anne, c. 16, s. 12. See vol. iii. p.

(m) 8 & 9 Will. 3, c. 11.

(n) Co. Litt. 237; 2 Sand. 47.

is saved: for no prudence or foresight of the obligor could guard against such a contingency (0).

We say usually the bond expressly binds the heir as well as the executor and administrator. This was of importance in regard to the remedies which we may remember the law gave to creditors of a deceased debtor against his real property, which he had not by his will charged with, or devised subject to, payment of his debts (p). *For we may remember that the law [* 548] which first rendered such property liable to the payment of all debts preserved the preferential rights of creditors by specialty, in which the heirs are bound (q) over other specialty creditors and simple contract creditors.

This priority still exists as regards creditors of persons who shall have died before the 1st January, 1870. Creditors by contract of persons who shall die on or after that day are, by an act of the present year (32 & 33 Vict. c. 46), to be treated as of equal degree, except so far as they may hold any security. It is therefore sufficient to say here, that a bond creditor whose debtor shall have died before the beginning of the year 1870 ranks as a specialty creditor, and if the heirs are named in the bond, reaps the consequent additional advantage as regards his debtor's real estate, always supposing that the debtor have not provided by his will for payment of his debts.

We may remark that in bankruptcy no such distinction is allowed or ever was thought of. There the maxim, equality is equity, has always been adopted.

A covenant is a direct agreement by a man on behalf of himself, his heirs, executors, and administrators, under seal, to do such a thing or to pay such a sum of money, with or without interest, on such a day. It is, in fact, a direct mode of obliging the covenantor by specialty to perform the same duty as a bond in an indirect way enforces. Upon action on a covenant, exactly the same damages are obtained as on a bond, unless indeed the limit of the penalty be reached in the latter case. All observations which we have made as to bonds apply to covenants, which were considered to rank as specialty debts. Covenants in practice invariably (though not necessarily) bind the heir expressly. We have already referred to certain covenants often contained in conveyances of real property, which in many cases bind not only the heir or *devisee of the covenantor, but also every alienee of the property, by [*549] whatever title he possesses it (r).

Registry of deeds
in Middlesex
and Yorkshire.

It only remains to add to our disquisition upon deeds that the legislature has specially provided for the counties of Middlesex and Yorkshire a registry of deeds and other instruments.

By these acts (s), which in most respects are similar, though not identical, deeds and conveyances are void as against subsequent purchasers or mort gagees, unless they be registered before the conveyances under which such purchasers or mortgagees claim. Wills are to be registered within six months after the death (†).

Some persons have thought that the notoriety of the title which a registry

(0) Co. Litt. 206.

(p) Ante, p. 462.
(9) 3 & 4 Will. 4, c. 104.

(r) Ante, p. 487.

See 8 & 9 Vict. c. 119.

(8) Middlesex, 7 Anne, c. 20; West Riding, 2 & 3 Anne, c. 4; 5 Anne, c. 18; East Riding

and town of Hull, 6 Anne, c. 35; and North Riding, 8 Geo. 2, c. 6.

(t) See Chadwick v. Turner, L. R. 1 Ch. 310. As to the inroad which courts of equity have made upon these acts, see vol. iii. p. 57.

gives is a matter of great moment and value, and therefore a scheme of general registration should be adopted. Other very competent judges have had occasion to doubt whether more disputes have not arisen in these counties by the inattention and omissions of parties than have been prevented by the use of registers. Moreover, the expense of searching the register, which is necessary on every dealing with the land, is no slight disadvantage. The generally prevalent opinion seems to have been against a system of compulsory registraBut the matter is under consideration at the present moment (u). (381) (u) A commission is now sitting to inquire into the question generally. See post, p. 569.

tion.

(381) In this country it is the uniform practice to record deeds and conveyances of lands, except certain chatte! interests. In every State in the Union there are statutory provisions in relation to such recording, and as to the attestation, proofs and acknowledgments which are necessary to authorize the instrument to be recorded, and as to the effect of such recording either as evidence, or as notice to other or third parties.

The object in view in recording deeds or other conveyances is principally to give notice to all persons who may desire to ascertain whether there has been any prior conveyance or incumbrance of the real estate described in such deed or conveyance. When the deed has been duly recorded it operates as a constructive notice, and it is as effectual in law as though each subsequent purchaser or incumbrancer had received personal notice of its existence As a general rule an omission to record a deed will not affect its validity as between the grantor and the grantee, or their heirs or devisees, or those claiming under them.

When a deed of lands has been given, and a third party takes a subsequent deed of the same lands, from the same grantor, with actual notice, at the time, of the existence of the prior deed, he will not get any title, even though such prior deed has not been recorded. Rogers v. Jones, 8 N. H. 264; Ellison v. Wilson, 36 Vt. 67; Jamaica Pond v. Chandler, 9 Allen, 169; Murphy v. Nathans, 46 Penn. St. 512; Blanchard v. Tyler, 12 Mich. 339; Irwin v. Smith, 17 Ohio, 226; Dixon v. Doe, 1 Sm. & Marsh. 70, 107; Wilkins v. May, 3 Head, 176; Lillard v. Rucker, 9 Yerg. 63; Morrison v. Kelly, 22 Ill. 610; Stanley v. Green, 12 Cal. 148.

The authorities all agree that, in legal effect, there is no difference between actual and constructive notice. Ib.

Such registration or recording of a deed does not operate as a notice to any one but a party who claims to have received a subsequent title or lien through, from, or under the grantor in the prior recorded deed. Bates v. Norcross, 14 Pick. 231; George v. Wood, 9 Allen, 80; Losey v. Simpson, 11 N. J. Eq. (3 Stockt.) 246, 249; Raynor v. Wilson, 6 Hill, 469, 473; Tilton v. Hunter, 24 Me. 29; Lightner v. Mooney, 10 Watts, 412; Ely v. Wilcox, 20 Wis. 530; Crockett v. Maguire, 10 Mo. 34; Lieby v. Wolf, 10 Ohio, 83; Holley v. Hawley, 39 Vt. 525, 532.

A subsequent purchaser is not bound to take notice of the record of a deed executed by a prior grantee whose own deed has not been recorded. Ely v. Wilcox, 20 Wis. 530; Losey v. Simpson, 11 N. J. Eq. (3 Stockt.) 246, 249.

Notice to one of several subsequent grantees is notice to all of them. Stanley v. Green, 12 Cal. 148.

So notice to an agent or trustee is notice to the principal. Myers v. Ross, 3 Head, 59. A deed which is not properly and legally put upon record is not such a notice as to bind or affect any one. Stevens v. Hampton, 46 Mo. 404; Brown v. Lunt, 37 Me. 423; Choteau v. Jones, 11 Ill. 300, 321; Short v. Curlee, 28 id. 219; Bishop v. Schneider, 46 Mo. 472, 480; Suter v. Turner, 10 Iowa, 517; Jacoby v. Gault, 20 Ark. 190; Johnston v. Slater, 11 Gratt. 321, 325; Racouillat v. Sansevain, 32 Cal. 376, 389; Stewart v. McSweeney, 14 Wis. 468; Harper v. Tapley, 35 Miss. 506; Isham v. Bennington, 19 Vt. 425; Galpin v. Abbot, 6 Mich. 17; Parret v. Shaubhut, 5 Minn. 323.

All deeds or instruments duly recorded are so far a binding notice to a subsequent purchaser, as to impute to him a knowledge of all facts relating to the same lands, so far as such facts appeared in the prior deeds or instruments so recorded before his purchase. Jackson v. Livingston, 10 Johns. 374; Fitzhugh v. Barnard, 12 Mich. 110; Reeder v. Barr, 4 Ohio, 446; Daughaday v. Paine,6 Minn. 452, 453; Baltimore, etc. v. White, 2 Gill. 444, 457; Brush v. Ware, 15 Peters, 93, 113.

VOL I -97