An Essay on a Registry, for Titles of Lands. By John Asgill, of Lincolns-Inn, Esq
AN ESSAY ON A Registry, FOR Titles of Lands. By JOHN ASGILL, of Lincolns-Inn, Esq
LONDON, Printed by John Astwood, at his Printing-House behind St. Christophers-Church in Threadneedle-street, the back-side of the Royal Exchange. 1698.
MY Name stands already Printed to a late Essay, Entituled, Several Assertions proved, in order to Create another Species of Money than Gold and Silver, of which I am not ashamed; and I have added my Name to this, that (whatever usage it meets with) I may stand bound to recognize it.
I hope I have such a Warrant to search for Truth, that will justifie me in breaking through all Crafts and Sciences to find it; as Hunger justified David and his Men, for entering the Priest's House, and eating the Shew-bread.
And because I find that I shall scarce be able to begin, much less to get through my Argument, without unfolding some Mysteries of Iniquity between Priests and Lawyers, relating to the Titles and Settlements of Lands, I hope that the Modern Professors [Page] of either of these Sciences will not be offended with me for speaking the whole Truth; but if they should, They will thereby be Witnesses against themselves, that they justifie the Deeds of their Fathers.
And if I should be charg'd with ProÂphaneness, for mingling sacred things with secular, I will shelter my self under the Lord of the Sabboth, who was accused for doing Business on that day; and Haud timeo si jam nequeam defendere Crimen, Cum tanto Commune€” [Page 1] SEVERAL ASSERTIONS PROVED, In Order to Introduce a BILL, FOR Establishing a REGISTRY FOR Titles of Lands. First Assertion. That as the Law now stands, the Free-hold Lands in England may be incumbered in diverse Manners, and at diverse Places. PROVED.
Free-hold Lands may be incumbered these several ways:
1. By Feofment, which must be executed in the Place where the Lands lye.
<=Page 2=/> 2. By Grant with Attornment, of which the Tenants must have Notice.
3. By Fine and Recovery (with a Deed leading the Use) which are Matters of Record.
4. By Bargain and Sale, inrolled in either of the Four Courts at Westminster, or with the Custos Rotulorum of the County where the Lands lye.
5. By Judgments in Three Courts at Westminster.
6. By Recognizances entered in the Courts where they are acknowledged.
7. By Statutes Merchant and Staple transmitted into Chancery.
8. By Lease and Release, which may be Executed any where.
9. By Leases granted out of the Lands, which may be Executed any where.
10. By Rent-charges granted out of the same, which may be Executed any where.
11. By Will in Writing.
12. By Bonds to the King, which are in the Nature of Statutes-staple.
All these are Incumbrances made by the Act of the Party: Besides which, there are others that happen by Default, as Acts of Bankrupcy, Eschaets and Attainders.
Now I am not a going to Calumniate [Page 3] the Law, for allowing of so many sorts of Incumbrances on Lands, but for permitting them to be done in diverse places, Which doth render the Titles to Lands incertain, and therefore is a Deficiency in the Law: And tho' the Law hath directed several of them to be recorded, yet this doth not remedy the Incertainty.
First, Because these Records do lye in several Places, which makes the Search thereof chargeable, and the Finding difficult.
Secondly, Because those that are upon Record, have no Preference above those that be not; so that should a Purchaser discover all that are Recorded, he may be defeated by those that are not; which can never be discovered, but by the Confession of them that made them, because they may be executed any where.
Therefore the drift of this Essay, is to give a Sanction to one Place above all the rest, by annexing a Priviledge to it, and leaving it to every Man's pleasure whether he will purchase that Priviledge or not.
To shew the Necessities and Conveniencies whereof, I offer the following Arguments. [Page 4] Second Assertion. That the Advantage taken (by the Conveyancers in the Law) of the Statute of Ues, 27 H. 8. in making Clandestine Conveyances, contrary to the true intent and meaning of that Parliament, and all the avowed Laws and Customs of England, doth occasion a Necessity of a Registry to prevent them. PROVED.
In tracing out the Occasions of making this Statute, I was drawn through all the Statutes against Mortmain, as far back as Magna Charta, which doth prohibit the giving Lands to Religious Houses; by which it did seem to me, that Lands had been so given before that time, or else it had not been prohibited: For humane Prohibitions generally come after the Fact committed, whereas the Laws divine prohibit by way of Prevention: Adam was forbidden the Tree, before ever he had tasted of it.
The first Statute against Mortmain was made by God himself, before the Fact committed; [Page 5] for by the Mosaical Law, which instituted the first Society of Priesthood, the Levites are forbidden to have any Inheritance but the Tithes, that they might not dote upon their Possessions; but Avarice increasing upon them, by an Acquisition of Wealth, which they did not know how to dispose of, they agreed to set up a Publick Treasury, by way of a Joint-Stock, for the use of the Church, which was not within the Words of the Prohibition; and out of this Joint-Stock they paid Judas the thirty pieces of Silver, which being returned by him, they were loth to part with it, and yet puzzled what to do with it; because being the Price of Blood, it was against their own Canons, to put it again into their Treasury; Therefore they took Counsel, and bought the Potters Field, to bury Strangers in. As my Lord Coke commends the Wisdom of our Ancient Clergy, for always choosing the most Learned in the Law to be of their Counsel, so it seems these Priests of old were endued with the like Wisdom: For the Children of this World are wiser in their Generation than the Children of the Light.
Now these Lawyers advised their Clients, that notwithstanding this Canon, they might purchase Lands with this Money, and annex them to their Church: But this being [Page 6] against the Law divine, prohibiting their purchasing of Lands, the Lawyers found this Stratagem, to purchase these Lands for a Burying-place only, in the Nature of a Church yard; which being a thing of Necessity, and made Sacred, would exempt, or at least excuse it from this Statute against Mortmain; and the Priests computing that this might turn to as much Profit as any thing else, (having double Duties for Lodging of Men, and Meat for Horses) they consented to lay out their Money in it, (any thing to get a Penny in an honest way.)
And this Field of Blood was the first spot of Glebe in the World, to which the Priests will be intituled, (in right of the Church) if ever they gain the possesÂsion of the Holy Land.
But having laid this Nest Egg, they went on to join Field to Field, and had they been let alone, had converted whole Kingdoms into Holy Ground before now.
And why Houses of Religion are said to be more haunted with Ghosts than Lay-Tenements, I can't tell, unless some of their subsequent Augmentations were the Price of Blood, as well as their Original Purchase.
But now to begin at our Laws: It is strange to observe, how the Parliaments of England did hunt the Priests and Lawyers with Statutes against Mortmain, from [Page 7] the making of Magna Charta, 9. H. 3. to this Statute in 27. Hen. 8. and yet could never catch them.
The Statute of Magna Charta (as has been observed) prohibited the giving of Lands to any Religious House: To evade this, the Lawyers advised the Clergy two things: First, That whereas several great Estates were held of them, under small Rents, that they might purchase in these Estates to their Church, because they were before held of them. Secondly, The Prohibition of the Statute being to Religious Persons only, that the Secular Clergy were exempted.
To hunt them out of these Holds, the Statute of 7 E. 1. called Statutum de Religiosis, doth prohibit any Religious Persons, or others, (which includes the Secular Clergy) by any manner of Craft or Engine to take Lands in Mortmain, and so they could not purchase in the Estates held of them.
To evade this Statute, the Lawyers advised the Clergy, That if they had any silly Confessants who had a mind to be cheated of their Estates, they might suffer a feigned Action to be brought against them, and therein lose their Lands by default, which Recoveries were adjudged by the Justices not to be within any of the words of this Statute, and therefore they were allowed; For that Recoveries being prosecuted [Page 8] in course of Law, were by Law presumed to be [...] just and lawful, tho' they were done in Fraudem Legis.
To drive them out of this Hold, the Statute of Westminster 2. makes all Lands so recovered to be forfeited to the Lords of the Fee, and for want of their Entry to the King.
To evade this Statute, the Lawyers advised the Clergy two things. First, That for all Lands lying found the Church, they might enter into them by assent of the Tenants, and make them Church-yards by Bulls of the Pope, (whether they had this by precedent from the Original Purchase, or according to the Proverb, That good Wits jump, is not material.) Secondly, They advised them, that they might purchase Lands in the Names of other Persons to their Use.
To hunt them out of these Holds, the Statute of 15 R. 2. prohibits both these.
To evade this, the Lawyers advised the Clergy, that they might purchase in the Names of other Persons, in Trust for themselves; which Trust was not within the precise words of Æ²se.
And thus the Priests continued to Cheat the People of their Estates, and the Lawyers the King of his Eschaets, for above three hundred years together, in spight of all Laws made to the contrary.
[Page 9] In which time they had taught the Layety this Craft, to convey away their legal Estates to Persons in Trust, whereby to prevent the Descent to the Heir, and consequently the Wardship to the King and other Lords, and yet to keep the use and pernancy of the Profits to themselves and Families: Of which King H. 8. complaining to his Judges, they advised an Act for Transferring all Uses and Trusts into Possessions; for which purpose a Bill was drawn by the King's Counsel, and presented to the House of Commons, in the 24th. year of his Reign, when it was rejected, but passed in the 27th. which is this Statute of Uses.
And four years after a Statute passed (worth all the former) for Dissolution of Monasteries; by which the Priests lost their Lands, and the Lawyers their Clients, (tho' not their Cunning) as will appear by the Sequel.
Now this Statute of Uses, 27 H. 8. hath introduced a new Conveyance in the Law, (which was not before) by way of Bargain and Sale, for tho' a Bargain and Sale did raise a Use at the Common Law, yet it was not a compleat Conveyance to transfer the Possession, without an actual delivery of it in the Country: but now this StaÂtute doing that Office by transferring the [Page 10] Use into a Possession, a Bargain and Sale became a compleat Conveyance without any other Ceremony: And the same ParliÂament forseeing that this Bargain and Sale so perfected might become a Clandestine Conveyance, to be executed any where, did intend to provide against it, by makÂing a Short Statute the same Sessions for that purpose, called The Statute for Enrollments, by which all Conveyances of Inheritance of Freehold, which pass by Bargain and Sale only, are to be Enroll'd within six Months after the Date, that Purchasers may have Notice thereof from the Record.
But of late years the Lawyers have topt their Inventions upon these two Statutes. For, First, They make a Bargain and Sale for a Term only, (now generally called a Lease for a Year) and which is not withÂin the Statute of Enrollments, and by this the Lessee gains a Use at Common-Law, and a Possession by the Statute of Æ²ses; which makes him capable of taking a ReÂlease of the Reversion at Common Law, and then they make a Release to him and his Heirs accordingly. Which two Deeds make him one perfect ConveyÂance, and so by putting the Common-Law at both Ends, and the Statute of Uses in the Middle, the Statute for Enrollments [Page 11] is bilkt, and these Conveyances by Lease and Release, which are Clandestine ConveyÂances, and invented by the Abuse of one Statute, and the Elusion of the other, are become the Common Conveyances of the Kingdom.
I challenge the Inns of Court to shew, that either the Common Law, or any ParliaÂments of England, ever directed any InÂcumbrances to affect Lands, but by Solemn Livery and Seisin, or matter of Record; and therefore these Clandestine Conveyances are crept in, contrary to the Intent and Meanings of Parliaments, and all the aÂvowed Laws and Customs of the KingÂdom.
There are two Common Titles to Lands in England: The one by Descent, which is proved by Marriages, Baptisms and BuÂrials; and the other by Purchase, which is proved by Deeds; and where there is one Dispute of Title by Descent, there are ten by Purchase; because the Titles which shew the Descent are registred, and those by Purchase are not; for were these MarÂriages, Baptisms and Burials, left at large, without notifying of them, as Purchases are, it would soon breed Confusion in all the Descents of the Kingdom. And is it not a Reproach to the Law, that that part of the Titles of Lands, which is the Province [Page 12] of poor Parish Clerks, should have more certainty in it, then that which belongs to the Professors of the Law? Third Assertion. That all Objections made against a ReÂgistry, upon account of Mischiefs which may arise by Discovery of Titles, are not only contrary to all the avowed Laws and Customs of England, but to the very Essence of Title, and the History of Conveyances. PROVED.
Some Notice is essentially necessary to the Title of every thing that is vendible: To make a Title, is to take the Property of a thing from one Man, and put it into another, of which it is necessary that other persons should have Notice, as well as the Parties, or else the Purchaser can have no Title because there is no Witness to give EviÂdence of it, in case the Seller should deny it. And as some Notice is absolutely neÂcessary to all Title, so the more Notice the better is the Title; it were better for every Man who is Owner of an Estateâ–ª that all Men knew his Title, and the [...] [Page 13] whenever he had Occasion to dispose of his Estate, there would be no further EnÂquiry into the Title of his Lands, than to the Title of Money in his Possession.
And as Notice is thus necessary and adÂvantageous to Title, so in the History of Conveyancing, the most perfect Titles are most Notorious, or rather the most NotoÂrious are most perfect.
And because Antiquity of Precedents is the greatest Argument in the Law, I'll quote one out of that Authority, which treats of things done before the FoundatiÂons of the World, and fortells us of seveÂral things that will come to pass after the Dissolution of it. The History of the World is but a Modern Treatise of things of a late Date, which were done in purÂsuance of Counsels and Decrees made beÂfore: Matters of Fact set forth, without the Original Design and Institution of them seem irrational, and to have no Meaning in them: Would any thing seem more riÂdiculous, than that the taking off a Seal, and delivery of a piece of Parchment by one Man, should give another a Title to an Estate, if the Law were not known, which gives the Sanction to this CereÂmony?
The Precedent I am going to quote, is, That great Settlement of Eternal Life, [Page 14] made by God upon Jesus Christ, for the Considerations therein mentioned: The EpiÂtome or Contents whereof, and the ManÂner of the Execution, I find in that History which we call the Gospel; but because the Contents thereof is not a Subject withÂin this Essay, I will not dare to touch upÂon it here: But the manner of the ExecuÂtion being directly within my Argument, (or rather my Argument within that) I dare relate it as I find it. This Settlement was first Enrolled in Heaven, (in the Volume of the Book it is written of me) afterwards was Sealed and Executed in the Blood of Christ, (the Seal of the Covenant) in the presence of all the World, (the Sound thereÂof is gone through the whole Earth) and since that hath or shall be Written and Preached, Printed and Published in all NaÂtions, Kingdoms, Tongues and Countries. (This Gospel must first be preached in all the World, as a Witness to all Nations, and then shall the End be.) By all which God himÂself is bound up from disposing Eternal Life in any other manner, than pursuant to this Settlement, without giving himself the Lye, which he cannot do; and Man hath such Notice of this Title, that he can't accept any other, without becoming an Imposter upon himself.
[Page 15] And this is the highest Precedent for Man to form his Titles by, as far as it is imitable by him; The things on Earth are but the Patterns of things in the Heavens, where the Originals are kept, to try the Truth of all things by. God delivered out the first Forms of all things in the World, of Ships, of Regular Buildings, of Letters written with his own Hand, of Marches and EnÂcampments, taught the first Workers in Brass and Bugle-work, Linnen and Silks, Plowing and Harrowing, Sowing and ReapÂing, Threshing and Winnowing; all which he owns to come originally from himself. A Jove principium.
And now to begin with the Business of Man: The first Purchase I find since the Beginning of the World, was made by AbraÂham of Ephron, the Hittite, in these Words, And the field of Ephron which was in Machpelah, which was before Mamre, the field and the cave which was therein, and all the Trees that were in the field, that were in all the Borders round about, were made sure to AbraÂham for a Possession, in the presence of the Children of Heth, before all that went in at the Gate of the City.
Another was made by Boaz of Naomi, in these words, And Boaz said unto the Elders, and unto all the People, ye are Witnesses this day, that I have bought all that was Elimelechs, and all [Page 16] that was Chilions and Mahlons, of the hand of Naomi: Moreover, Ruth the Moabitess, the Wife of Mahlon, have I purchased to be my Wife, ye are witnesses this day. And all the People that were in the Gate, and the ElÂders said, we are witnesses. (O Tempora! O Mores!) Purchasesâ–ª and Marriages made without Lawyers or Priests: However, I have mentioned these Conveyances more particularly, because I fancy our MoÂdern Conveyancers, with all their TrumÂpery of Stationers Ware, can't make betÂter, either for Form or Substance; and these were made by Paroll, being before the Delivery of the Form of Letters to Man.
The first that I have observed in WriÂting, was the Purchase of Redemption made by Jeremy of Hananael, in these words, And I subscribed the Evidence, and sealed it, and weighed him the Money in the Ballances, so I took the Evidence of the PurÂchase, both that which was sealed according to the Law and Custom, and that which was open, and gave them to Baruch, in the sight of Hananael, and in the presence of the Witnesses, who subscribed the Book of the PurÂchase before all the Jews that sate in the Court of the Prison; and charged Baruch, saying, take the Evidence, as well that which is sealed, as that which is open, and put them [Page 17] in an Earthen Vessel, that they may continue many dayes.
By this it doth appear, that Registring of Deeds is as antient as the Deeds themÂselves: Here is the Original Sealed, and then Registred in a Book, to which the WitÂnesses subscribe their Names: Now Baruch had the Custody of the Registry, in the Nature of a Publick Notary, for that purÂpose, being elsewhere called Baruch the Scribe: But that the Original was deliÂvered him, was an extraordinary thing, for that belongs to the Purchaser: But it being just before the carrying away CapÂtive into Babylon, (of which Jeremiah had Notice) he delivered them both to Baruch, to hide them till the return of the CapÂtivity.
That which I Cite these Precedents for, is the Notoriety of them, by calling all the People together to bear Witness, and an Inrollment beside to that which was in Writing.
And methinks all the Old Forms in the beginning of Deeds, shew the Intention of making them as publick as they could be; Know all Men by these Presents; and, To all People to whom these Presents shall come, &c.
And as the Law intends Notice of all things done by Deed, so it hath provided [Page 18] Publications for things done without Deed, as Fairs and Markets for Selling of CatÂtel, that the Purchasers may not be cheatÂed; Publications in the Churches before Matrimony, and Registring after it, to preÂvent Bigamy: So the Law marks Felons in the Hand, that none may trust them.
And yet after all this, there is a ProÂvision intended in the Bill for this RegiÂstry, whereby any one may Conceal the Uses declared of his Estate, yet so that there shall be some Notice taken of the Deed, by which the Uses are declared, that the Owner of the Land shall be inÂcapable of Selling or Mortgaging his Estate, 'till he doth produce that Deed, whereby a Purchaser or Lender cannot be defeated. Fourth Assertion. That all Objections made against this Registry, upon Account of Reducing the Practice of the Law, are one good Reason for it. PROVED.
The practice of the Law in Civil Causes is divided into three Sorts: First, The transferring of Titles, which is called ConÂveyancing. Secondly, The shewing forth and [Page 19] defending these Titles in Forms of Law, and this is called Pleading. Thirdly, The arÂguing upon these Conveyances, and Pleadings (when they come in contest) before the Judges, and this is called Practice at the Bar: So that the Practice of the two latter doth arise from the Errors or Incertainties of the former. Were the Titles of Lands once made certain (which they may be by a Registry, and no otherwise) I know what I think of the future Gains of the Law. The profit of the Law arises from the Incertainty of Property, and therefore as Property is more reduced to a certainÂty, the profit of the Law must be reduÂced with it; the Fall of the one must be the Rising of the other. Actions of SlanÂder and Battery, and Causes on the CrownÂside, would scarce find some of the CirÂcuiteers Perriwiggs, and yet (if we obÂserve Evidence) they stand obliged to DisÂputes in Titles for many of these. Theif and Whore, Kick and Cuff, are very ofÂten the Effect of forcible Entryes, TresÂpasses and serving of Process, in which the Title comes frequently in Question. But the reducing this part of the practice of the Law, are things not seen as yet. The Proximus ardet will fall upon the Conveyancers, and that not by altering the Forms of legal Conveyances, or taking them [Page 20] out of their hands, or putting any stop to the Dealing in Lands, (for that will be encreasÂed) but by exposing their manner of praÂctice in this Conveyancing part of the Law.
For as it was numbered among the Sins of one of the Kings of Israel, that he made Priests of the meanest of the people, so it is the misfortune of the people of EngÂland, that Conveyancers are frequently made out of Old Attornies or Noblemens-Lease-makers, fumpt up in Bar-gowns. Two Qualifications are necessary to a compleat Conveyancer: First, That he be incapable of dispatching Business so fast as he should. Secondly, That he doth not dispatch it so fast as he can. Not to speak of bantering their Clients with their seeming Care and CauÂtion in delaying their Business, shewing great Trunks of old Writings in their Chamber, calling to their Clerks (before them) for one Lord's Settlement, and anoÂther Ladies Jointure, to tell what great Clients they have; and when they come to be paid, they reckon their Fees by lonÂgitude and latitude. I have seen an oriÂginal Mortgage of one Skin, bred up by a Scrivener (in six Year) to one and twenty, by assigning it every Year, and adding one Skin to every assigment, by Recitals and Covenants: As Cows after three Years old, have one wrinkle added to each [Page 21] Horn for every year after, which shows their Age: And I am informed, that one Deed of sixty Skins was heaved out of a Conveyancer's Office the other Day.
At this rate in a little time the Clyents must drive their Deeds out of their LawÂyers Chambers in Wheel-barrows. These Assignments and Re-assignments of SecuÂrities have been a pretty sort of PerquiÂsites; especially if they have but an old Judgment or Statute kept on foot, these are certain annual Incomes. I knew two Serjeants at Law, (Usurers,) made it their common practice every Long Vacation, to swop Securities with one another, to make their Mortgagers pay for the AssignÂments; and (doing this without Advice of Counsel) they once Merged an old Term, and thereby spoiled their Title to secure their Fees; which (as to them) answers the Character given of these Graduates by a Forreign Historian, Est in Regno Angliae genus hominum doctorum indoctissimum communiter vocat, The Learned Serjeants at Law: Now I cann't think but these ConÂveyancers and Assigners would be ashamÂed to produce such things to a Registry; and that therefore they must either abÂbreviate their Conveyances, or loose their Practice.
[Page 22] But whether this Registry will make these Reductions: 1. Of the Length of Conveyances. 2. The Incertainties of TiÂtles: And, 3. By Consequence, the other Practice in the Law, I cannot tell: HowÂever, I hope it, and believe some of them fear it.
But if the Cryes of Monks and Fryers had been regarded, we had never heard of the Dissolution of Monasteries; and if the Clamours of Masters of Request, Clerks and Eschaetors had prevailed, the Court of Wards and Liveries had been standing at this day: And yet perhaps most of these had either purchased their Places, or were bred up to that part of the Law only. Fifth Assertion. That the Assurance of the Title, and Dispatch of Business by this RegiÂstry, will be more than equivalent to all the Charge in Registring the InÂcumbrances. PROVED.
The Certainty of Titles being the main drift of this Essay, it would be too mean an Argument to use for it, to say, That [Page 23] the Charge of Registring of Deeds will be saved by reducing the Charges in maÂking them; (altho' this be true) yet granting it should not, and that this ReÂgistry should be an additional Charge to all others, yet the Priviledge of it will be worth the Price.
It is said, that whenever the Ld. Ch. J. Hales had made a Purchase, he would say, Now I would give a Years purchase more to be sure of my Title: And if we should ask those who have lost their Estates, for want of a discovery of Deeds, they would set a higher Price upon it.
Men generally make their Purchases (with the acquisitions of all their former life) to settle them on their Posterity, for whom they are more sollicitous than for themselves; and therefore they are always more jealous of the Title than the Value, because a deficiency in Title goes to the whole, but a deficiency in Value goes but to part only; and for that Reason they would almost think nothing too much to assure them of their Title.
If a Man one hundred and fifty Miles from London, is to sue his Neighbour but for 10 l. he must employ an Attorney in the Country, who must send to another in London to make out a Writ, and this must beâ–ª Entered in one Office, and Sealed in [Page 24] another, and then sent to the Sheriff, who must make out a Warrant, and deliver it to his Under officers; who must arrest the Defendant, take a Bail bond to the SheÂriff, and after Bail given to the Action, the Plaintiff must declare, to which the Defendant may plead almost what he pleases for Delay; and if he pleads to Issue, (which is the fairest can be expectÂed) there must be Issue joined, a Record sealed, and sent down to the Assizes, a Ven. and Distringas to return the Jury, Notice of Tryal to the Defendant, a Tryal had, the Verdict returned upon the Postea, JudgÂment entered, Execution sued out and deliÂvered to the Sheriff, and a Warrant from him to his Under-officer to levy it.
Now I don't calumniate this Process for recovery of Debts, nor did I ever hear the Lawyers complain of this as a BurÂthen to the People. But why of all troubles the trouble of a Registry should be only grievous, I can't tell, unless because it puts an End to Strife: Is it such a mighty trouÂble for an Attorneys Clerk, when he is to enter up a Judgment, to step into the Registry, and leave an Entry made of it? and is it such a great trouble for a Man, when he has sealed a Deed, to go to the Register to acknowledge it?
[Page 25] There's more trouble than all this in transÂferring Copy-hold Estates, and yet we don't hear much Complaint about them: Men are seldom in such hast about laying out their Money, or at least their LawÂyers are not so violent in dispatch of their Business, but they may dispense with the Ceremony of a Registry, to prevent the loss of their Estates.
Festina Lente is the Conveyancers MotÂto, and therefore they advise their Clients not to hurry them, nor put them out of their own pace; they must think nothing troublesome but the Entering the Deed in a Registry. To come to a Lawyers Chamber twice a Week, to know when they shall come again; then to have a Bill of Directions to send for some Deed which the Lawyer wants, and which perÂhaps is a hundred Miles distant, in they know not whose hands, to employ an Attorney to search for Judgments, StaÂtutes, Recognizances, Deeds Inrolled in four Courts, to send for a Copy of a Will proved in a remote Diocess, and bring an Account of all this to the Lawyer, and give him a New Fee, and then begin aÂgain: and may be two or three such ReÂcipes before the Title be finished; and the Clyents must not think much of all this, but take it as the Nature of Business.
[Page 26] And yet I cann't say but all this may be Necessary, as the Case now stands, which must still grow worse, if let alone: For the Troubles and hazards of Titles must continually increase, until they are reduced to a greater Certainty by a Registry.
But then as a Registry would reduce the Incertainty of Titles, it must thereby take away the Delayes in Conveyancing, and consequently abridge the Charges: For as the Pharisees made long Prayers, as a Pretence or Equivalent for devouring WidÂdows Houses, so Practicers in the Law must make out long Bills, on pretence for demanding large Fees: Like some Tooth-drawers, who dragg their Patients by the Jaws about the room, to shew them how hardly they earn their Money. To cure Deficiency in Titles, would be as fatal to Conveyancers, as the Cure of a lame Legg to a Beggar.
It is pleasant enough to any one (but those who are to pay for it) to read a ConÂveyancers Bill of Fees, made out for CliÂents who don't pay well by the gret.
To Counsel for perusing several long Deeds of the Title, which from the beginning to the end was near six Months, and drawing several long Conveyances, in all thirty Skins of Parchment, 100 Guineas.
[Page 27] To his Clerk for Engrossing the same, and Expedition, 30 Pounds.
So here the Counsel is paid for delay, and the Clerk for Expedition, which puts me in Mind of three Items set down in a Country-Scriveners-Bill, Pro speciali labore, 6 s. 8 d. pro expeditione, 6 s. 8 d. pro disÂpatch, 6 s. 8 d. the first was for keeping the Business a great while, and the other two for doing it presently. Sixth Assertion. That in case this Registry be admitted, it seems more practicable, and less troublesome, to settle it in the MetroÂpolis, than to dispose it into the seveÂral Counties.
Tho' the Soil of Lands lyes in in seveÂral Counties, yet Concourse of Business to the Metropolis, doth generally occasion the transferring of Titles there, (especially of all that are considerable) scarce a Purchase or Mortgage of 500 l. but is transacted in London; and by Posts and other CorreÂspondencies, it is less trouble to transmit any thing thither, than few Miles in the Country.
[Page 28] 'Tis observable, that the Statute for InÂrollment giving Liberty to enter Deeds in either of the four Courts at Westminster, or in the County where the Lands lye, the latter is seldom used.
And many Deeds containing Lands in several Counties, it would be inconveniÂent to enter them in all.
But should it afterwards be found neÂcessary to extend this elsewhere, it will be better done from this as a Precedent, than to settle it altogether.
The Judges of the Kingdom were at first resident in the King's Courts only, and from thence were made Itinerant, as the Occasions of the Country called for them.
There can be no Streams without a FounÂtain, but when that is finished, the WaÂter may be directed to any place.
Nothing can be perfected without a beÂgining, and therefore to resolve to do noÂthing, till we can do every thing, is an absolute Resolution to do nothing, and puts us in the case of the impotent Man at the Pool of Bethesda, who (by ConÂclusion) was under an Impossibility of beÂing healed, for he could not be healed till he stept in, and he could not step in because he was lame.
[Page 29] And having thus argued for Publication of Titles, as a Notice against Frauds, I hope Envy cannot say, but I have fairly published my Thoughts about it: And were all ProÂpositions for New Laws made as publick as this before they passed, perhaps it might save the labour of subsequent Acts to repeal or exÂplain them.
As to what I have said in the Law, I apÂpeal to them that know it, whether I have misÂrecited or misinterpreted it.
And notwithstanding all that I have said of some of the Lawyers, I am so well satisÂfied in my Relation to that Science, that I would not exchange it, to be a higher GraÂduate in any other. And it is more owÂing to the Candor of the Cheifs of the Law (who sit in the Seats of Judgment) in disÂcouraging all fraudulent Practices, and to the Care and Fidelity of the Practicers of the Law, than to the Law it self, that there are no more Frauds committed in the Titles of Lands, under the present Incertainty of them: For we see, if but One or Two in an Age of that Profession (and none of the most LearnÂed neither) do apply themselves to drawing Deeds, and forgeing Evidence, what Work they make in Westminster Hall.
And as my Lord Coke, speaking of the then Court of Wards, said, That tho' the [Page 30] Parliament had rejected several Proposals for taking away those Tenures, yet he did not doubt but God had that Kindness for the People of England, that an Act would once pass for that purpose, by giving the Crown an Equivalent: All which was fulfillÂed since his Death: So I have that foresight of the growing Mischiefs for want of a ReÂgistry, that I am confident the Necessity of it will force its own way: And therefore were I now a dying, I would send this out into the World to take its Fate, with this Motto only. â€”Sine me, Liber, ibis in Orbem. [Page 31] A BILL FOR Establishing a REGISTRY FOR Titles of Lands.
WHereas by the Common-Law of this Realm, Lands, Tenements and HereditaÂments were not to be transÂferred from one to another, but by Solemn Livery and Seisin, or Matter of Record.
And whereas by the Statute made in the 27th. Year of the Reign of King Henry the Eighth, Entituled, An Act concerning Uses and Wills, a BarÂgain [Page 32] and Sale did become a Compleat ConÂveyance in the Law, whereby Lands and Tenements might be transferred from one to another in a clandestine manner, without Livery and Seisin, or Matter of Record. For prevention whereof, by another StaÂtute made in the same 27th. Year of the late King Henry the Eighth, For InrollÂment of Bargains and Sales: It was Enacted that from and after the last Day of July, which should be and since was in the Year of our Lord 1536. No ManÂnors, Lands, Tenements, or other HerediÂtaments should pass, alter or change from one to another, whereby any Estate of InÂheritance of Freehold, should be made or take Effect in any Person or Persons, or any Use thereof to be made, by reason only of any Bargain and Sale thereof, except the same Bargain and Sale were made by Writing, Indented, Sealed and Inrolled in one of the Kings Courtsâ–ª of Record at Westminster, or else within the same County or Counties where the same Mannors, Lands or Tenements so bargained or sold, lye or [Page 33] be, before the Custos Rotulorum, and two Justices of the Peace, and the Clerk of the Peace of the same County or CounÂties; or two of them at the least, whereof the Clerk of the Peace to be one, and the same Inrollment to be had or made within six Months after the Date of the same Writings indented.
And whereas since the making the said Statutes, of late Years, there have been seÂveral inventions for Conveying of Estates of Inheritance of Freehold, by way of Lease and Release, and also for making of BarÂgains and Sales thereof for long Terms of Years, without Inrollment of such ConveyÂances; both which are a manifest Abuse of the said Statute concerning Uses and Wills, and an Evasion of the said Statute for InÂrollments.
And whereas the said Conveyances by Lease and Release, and Bargains and Sales for long Terms of Years, being clandestine Conveyances, to be Executed any where, and invented contrary to the Intent and MeanÂing of the said Statutes, and all the anciÂent [Page 34] and avowed Laws and Customs of this Realm, are now of late Years become the most Usual aud Common Conveyances, for Conveying of Freehold Lands, whereby seÂveral Frauds and Abuses have been commitÂted, and several Suits and Contentions have arisen thereupon, to the manifest hazardÂing the Titles of the Freehold Lands of this Kingdom, and the dishonour of the Laws thereof.
For remedying of the Mischeifs aforesaid, by providing one certain Place, where all the Conveyances and Incumbrances herein after-mentioned, relating to Freehold Lands, may be Entered, in Order to the more easie and ready searching and finding out the same.
Be it Enacted by the Kings most ExcelÂlent Majesty, by and with the Advice and ConÂsent of the Lords Spiritual and Temporal, and the Commons in this present Parliament AssemÂbled, and by the Authority of the same
[Page 35] [...] Note: This Blank is for the Constitution and Qualifications of the Register.
And be it Enacted, that the said ReÂgister so to be appointed as aforesaid, on or before the [...] day of [...] and all other succeeding Registers for ever then after, shall provide and keep within one of the Inns of Court, or some other place, in or near the Citys of London or WestÂminster, [Page 36] an Office of Registry for the purposes herein after mentioned: And shall provide and keep in the said Office several Register-Books, for Registring of Deeds and Writings, in manner herein after-mentioned; and also one or more Stamps, for stamping of the same Deeds and Writings, in manÂner also herein after-mentioned, the CounÂterfeiting of which said stamps shall be and is hereby madeâ€”
And be it Enacted, that all Conveyances, Grants or Assignments of any Mannors, Lands, Tenements or Hereditaments of InÂheritance of Freehold, within the Kingdom of England, or of any Rents issuing out of the same, or of any Leases, or Terms for Lives or Years to be made thereof, which at any time after the [...] day of [...] shall be duly seale [...] and executed for good and lawful ConsideÂration, and shall after such sealing and exÂecuting thereof, be registred in one o [...] the said Register-Books, shall in respec [...] thereof have and be esteemed and taken t [...] [Page 37] have the Priviledges and Preferences hereÂin after-mentioned, that is to say, that such Conveyances, Grants or Assigments, from and after such Registring thereof, shall be good and effectual, according to the Purport and Contents thereof, against all other ConveyÂances, Grants or Assigments whatsoever, which after the said [...] Day of [...] shall be made of the same Mannors, Lands, Tenements or Hereditaments, and not RegiÂstered as aforesaid, Notwithstanding that such Conveyances, Grants or Assignments so omitÂted to be Registred, shall be prior in Date or Execution to the said Conveyances, Grants or Assignments, which shall be so registred.
Provided nevertheless that all such ConÂveyances, Grants or Assignments so omitÂted to be registred as aforesaid, shall notÂwithstanding such omission be good and efÂfectual against the Grantors, or the PerÂsons making the same, and all other PerÂsons whatsoever, except the Persons claimÂing under the said Conveyances, Grants or Assignments, which shall be so Registred as aforesaid, as fully and effectually to all InÂtents [Page 38] and Purposes, as if this Act had neÂver been made.
And for preventing a double charge in Enrolling of Bargains aud Sales of InheriÂtance of Freehold, before the Entry thereÂof in the said Register-Books, Be it EnactÂed, That such an Entry made as aforesaid, of any Bargain and Sale of Inheritance of Freehold, at any time within six Months after the Date thereof, shall be deemed and taken to have, and is hereby made to have the force and effect of an Enrollment, within the said Statute for Enrollment of Bargains and Sales, as fully and effectually to all InÂtents and Purposes as if the same were inÂrolled in either of the said Courts of ReÂcord at Westminster, or with the Custos Rotulorum of the same County.
And whereas several Conveyances or AsÂsignments may be made by indorsements upon former Deeds, Be it Enacted, that when any Conveyance, Grant or Assigment shall be duly Registred as aforesaid, and after such Registring thereof, there shall be any Grant, Conveyance or Assigment, DeclaraÂtion [Page 39] of Trust or other Deed made by EnÂdorsement thereon, that the Registring such Endorsement in one of the said Register-Books, and making a reference therein to the said former Deed on which the same was indorsed, shall be as good and effectuÂal to all Intents and Purposes, as if the said former Deed were again Registred with the said Endorsement.
And whereas it may be Conceived to be sometimes prejudicial or inconvenient, to pubÂlish the Uses and Trusts to be declared of Lands, Be it Enacted, that where any Grants, Conveyances or Assignments shall be made of any such Mannors, Lands, TeÂnements, or Hereditaments as aforesaid, to any Uses, Intents or Purposes to be expresÂsed in the same Deed, or any other Deed to which the same Deed shall refer, that the Registring of so much of such ConveyÂances, Grants or Assignments, by which the Legal Estate of the same Mannors, Lands, Tenements or Hereditaments, conÂtained in the said Deed shall stand transÂferred, and certifying such Registring upÂon [Page 40] the same Deed so in part registred, and also upon the other Deed to which the same so in part registred shall be made to reÂfer, Shall be esteemed a Registring of the said Uses or Trusts within this Act, whereby to entitle the same Uses and Trusts to such preference as aforesaid, as fully and efÂfectually to all intents and purposes, as if the same Uses or Trusts were registred at large, any thing herein contained to the conÂtrary notwithstanding.
And whereas Freehold Lands in EngÂland, are by several Acts of Parliament made liable to Executions on Judgments, Recognizances and Statutes, which being entered in several places, the Searches for the same are chargeable, and the finding of them difficult, to the further hazarding of the Titles of Lands, For remedy thereof Be it Enacted, that no Judgment, RecogÂnizance or Statute, to be had or acknowÂledged at any time after the said [...] day of [...] shall bind or charge any Lands, Tenements or Hereditaments within the Kingdom of England, against any [Page 41] Purchasers or Mortgagees thereof, except such Lands, Tenements or Hereditaments, as the Defendants in such Judgments, or the Cognizors in such Recognizances and Statutes shall have on the day of the ReÂgistring thereof with the said Register in manner herein after-mentioned, That is to say, that for all Judgments, the Names of the Plaintiffs and Defendants therein, the Summs recovered thereby, and the Day of the Signing thereof by the Judge, or other Officer signing the same, Shall be Registred; and for all Recognizances and Statutes, the Names of the Cognizors and Cognizees therein, the Summs thereÂby acknowledged to be due, and the day of the Acknowledgment thereof Shall be ReÂgistred.
And be it Enacted, that no Devise by Will of any Lands or Tenements within the Kingdom of England, shall be allowed as good against any Purchasers or MortÂgagees of the same Lands or Tenements, unless such Will, or so much thereof, whereÂby such Devise shall appear, shall be regiÂstred [Page 42] in one of the said Register-Books, within six Months next after the death of the Testator, provided that after such ReÂgistring of such Will or Devise, the same shall take the Effect from the Death of the Testator.
And be it Enacted, That the said Register for the time being, or his sufficent Deputy in that behalf, shall from time to time, certiÂfie the days of all and every the respective ReÂgistries therein before directed, upon some part of the Deeds or Writings so to be registred as aforesaid, by affixing the Stamp of the said Office thereunto, and signing the same. Which said Certificate shall be taken as Evidence of such Registries in all Courts of Record and elsewhere.
I cannot be so Arrogant, to dictate this Bill to the Legislative Power, but if what I have asserted be true, I hope the more Learned Gentlemen of the Law, who shall oppose this Remedy, [Page 43] will either provide a better, or agree this Motto (for proclaiming the Laws of England) upon every House in the Kingdom, NO ONE KNOWS THE OWNER: In which they will not be more ingenuous to their Profession, than the Athenians were to their ReliÂgion by that Inscription on the Altar, (TO THE UNKNOWN GOD.) FINIS.