But supposing it to be certain that no concealed charge affects land, it may happen that the undoubted owner of it may be unable to prove his right from want of the title-deeds. N possesses an estate, which may be a small part of a much larger estate, of which the owner, M, retains the title-deeds, giving to N authenticated or attested copies of them, and a covenant that he, M, when required, will pro duce the originals. But M sells the estate, and the title-deeds pass into hands not bound by the covenant to produce ; or he dies, and his representatives are unknown ; or again, N himself sells his portion of the estate, and he cannot transfer the benefit of his covenant [Cove.sszse]; or, by a multitude of accidents, the deeds of some of thorn are lost. Instances have been known where the mere expense of giving attested copies of deeds, which a person who had contracted to sell an estate was bound to furnish, has exceeded the value of the estate.
A large proportion of the land in the country is thus unmarketable, either from the fear of latent incumbrances, or from the inability of the owner to produce his title-deeds. Prior incumbrances are indeed somewhat assisted by the doctrine of courts of equity, that if a sub sequent purchaser or mortgagee has notice of the previous charge before his own transaction with the estate, he shall not by any devico obtain priority over that charge. But notice does not necessarily imply knowledge. [Nonce.] Notice may be an actual direct intima tion of a fact given to the party or his agents, which is called actual notice ; or it may be only something leading a discreet person to au investigation, which would enable him to discover the fact ; thus the existence of a suit (lis pendens) touching the land affects the purchaser or mortgagee with notice. This latter class of notice is called construc tive; it is so vague as to be easy of proof, and difficult to avoid; and one consequence of the admission of it in a court of equity is, that solicitors often think it their duty to avoid investigations which might lead to constructive notice, and so endanger the priority of their client's security.
These remarks may assist the unprofessional reader in understand ing the use of a General Public. Register of all deeds or instruments affecting land, in order to secure titles against the loss or destruction, or the fraudulent suppression, or accidental non-production of instru ments; to simplify titles by rendering in most cases needless the assignment of outstanding terms; to protect them from the con sequences of constructive notice ; and to render conveyances shorter and more simple.
To a certain extent such registers have been already established in England. By the 27 Henry VIII., c. 16, it is enacted that all bargains and sales of land shall be enrolled. plummet Alen SALE.] The 2 & 3 Anne, e. 4 (amended by 5 Anne, c. 18) directs that a memorial of all deeds, conveyances, and wills concerning any lands in the West Riding of Yorkshire may, at the election of the parties, be registered ; and that any conveyance or will affecting the same lands shall be deemed void against. a subsequent conveyance unless a memorial shall be registered. The 6 Anne, c. 35, recites that " lands in the East Riding of York, and in the town and county of the town of Kingston-upon Hull, are generally freehold, which may be so secretly transferred or conveyed from one person to another, that such as are ill disposed have it in their power to commit frauds, and frequently do so, by means whereof several persons (who, through many years' industry in their trades and employments, and by great frugality, have been enabled to purchase lands, or to lend moneys on land security) have been undone in their purchases and mortgages by prior and secret conveyances and fraudulent incumbrances ; and not only themselves, but their whole families thereby utterly ruined ;" and then the Act establishes a register of the memorials of deeds and wills in the East Riding of Yorkshire. The 7 Anne, c. 20, establishes such a register for Middle
sex and the 8 George II., e. 0, establishes one for the North Riding of Yorkshire, and provides that deeds, wills, and judgments affecting land may be registered at length, instead of the registration of mere memorials of them. In the Bedford Level too there is a registration of all deeds affecting land there. These registers, owing to the insuffi ciency of their indexes, and to some other defects, do not answer all the purposes which might be expected from them, and in many respects their arrangements are cumbrous and expensive : nevertheless no one has proposed to abolish them. A registration of wills has long been established, not certainly upon a good plan, since it is not always possible to say beforehand in what court a will has been proved, but nevertheless with great advantage. The Act for Abolishing Fines and Recoveries (11 & 4 Wm. IV., c. 74) substitutes for them a deed which' is enrolled in the Court of Chancery. In Ireland, in the Colonies, in most of the United States, in Sweden, France. and Italy, and in many of the German States, registers are established. Nor is it found that the disclosures which a register makes of the state of landholders' property produce inconvenience, even supposing such disclosures inseparable (whirls they are not) from all systems of registration. it is obviously for the public benefit that the apparent extent of a person*a landed property should not induce men to give him a credit to which the actual amount of that property does not entitle him.
It is clear then thet If • register is established, which must be sooner or later, it ought to be taken as sufficient notice of the docu ments registered ; and that on the other hand default of registration ought not to be remedied by any proof even of actual notice.
The Act 1 & 2 Vict. c. 110 provides that no judgment of the superior courts, or decree of the courts of equity, shall affect lands unless a memo randum tlurcof be registered in the Court of Common Pleas. It also enacts that no pending suit (lis pendens) shall affect the purchaser or mortgagee with notice, tiniest a similar memorandum is registered, this entry also being renewed every five years. The Act also requires crown debtors to be registered in the same office, and provides means for obtaining and recording their discharge from their liabilities to the crown ; but the Act does not require the renewal every five years of the entry in this case.
Persons becoming purchasers and mortgagees since the passing of the Act 23 & 24 Vict. e. 38 (23rd July, 1860), are not even affected by this registration of judgments, however, unless process of execution be also Wined and registered before the date of the conveyance or mortgage, and enforced within three calendar months after such registration.