be the subject of mortgage, the gift and acceptance, as well as the notice of the acceptance, which shall have taken place by a separate act, should be made at the offices for mortgages in the district in which the property situated. (a)

is

The transcription must be made at the instance of the husband, where the property has been given to his wife, and if he omits to make it, the wife may proceed thereto without authority.

If the gift be made to minors, interdicted persons, or to public establishments, the transcription must be made at the instance of the guardians, curators, or administrators. (b)

Default of transcription may be set up by all persons interested therein, except those who are charged with the duty of causing the transcription to be made, or their assigns, and the donor. (c)

Minors, interdicted persons, and married women, are not relieved against default in making the transcription of gifts; but they are left to their remedy against their guardians or husbands. (d)

Non-registration cannot be set up by the donor, nor his heirs, nor by those claiming as donees or legatees, to defeat the prior gift, but it may be set up by the creditors or tiers acquéreurs of the donor. (e) This decision is in conformity with the opinion of Grenier, but it is questioned by Toullier. (ƒ)

The transcription of contracts of sale by purchasers, in order to free the property from previous incumbrances, may in some respects be considered as registration. It is optional with the purchaser to resort to it.

(b) Art. 940.

(a) Art. 939.

(c) Art. 941.

(d) Art. 942.

(e) Arrêt, April 10th, 1815, Sirey, tom. 15.

(f) Grenier, Tr. des Don. part 1, c. 5, Tom. 1, 3rd ed. Toullier, liv. 3, tit. 2, c. 4, p. 240 et seq.

Other proceedings must also be taken by him to render it effectual. The nature of this transcription has already been stated.

SECTION II.

REGISTRATION IN ENGLAND, IRELAND, AND SCOTLAND.

I. Registration required only in certain parts of England.-How made. -Registration is not notice.-Effect of non-registration. It cannot be set up by a person taking with notice of the unregistered deed.— Decisions on the registry acts.

II. The registry act of Ireland.-In what respect it differs from or agrees with the registry acts of England. Decisions on it.

III. Registration in Scotland.-Earlier statutes respecting.-Manner in which made. Within what time to be made.-Effect of non-registration. By whom it may be set up.

REGISTRATION has been adopted only in some parts of England.

By the statutes of 2 and 3 Ann, c. 4, 6 Ann, c. 35, 8 Geo. II., c. 6, a memorial of all deeds and conveyances of or concerning, and whereby any honours, manors, lands, tenements, or hereditaments in the West and East Ridings of the county of York, or the town and county of Kingston-upon-Hull and West Riding of York, may be affected in law or equity, may, at the election of the party or parties concerned, be registered; and every such deed or conveyance, that shall at any time be made and executed and not registered, shall be adjudged fraudulent and void against any subsequent purchaser or mortgagee for valuable consideration, unless such a memorial thereof shall be registered, as by

these acts is directed, before the registering of the memorial of the deed or conveyance under which such subsequent purchaser or mortgagee claims.

The memorial must be under the hand and seal of some or one of the grantors, or some or one of the grantees, his or their guardians or trustees, attested by two witnesses, one whereof to be one of the witnesses to the execution of the deed or conveyance mentioned in such memorial. (a)

It must contain the day of the month and the year when such deed or conveyance bears date, and the names and additions of all parties to such deed or conveyance, and of all the witnesses to the same, and the places of their abode, and express the honours, manors, lands, tenements, or hereditaments contained in such deed or conveyance, and the names of all the parishes, townships, hamlets, precincts, or extra-parochial places within the riding, wherein such honours, &c., are lying or being, that are given, granted, conveyed, or any way affected or charged by any such deed or conveyance, in such manner as the same are expressed in such deed or conveyance, or to the same effect. (b)

Every such deed or conveyance, of which such memorial is to be registered, must be produced to the register or his deputy at the time of entering such memorial, who is required to indorse a certificate on every such deed or conveyance, and therein mention the certain day, hour, and time on which such memorial is entered and registered, expressing also in what book, page, and number the same is entered. (b)

The register or his deputy is required to sign the certificate when thus indorsed. (b)

By the 18th section of the subsequent statute, (c)

(a) 2 and 3 Ann, c. 4, § 7.

(c) 6 Ann, c. 35. 8 Geo. 2, c. 6, § 22.

(b) Sect. 8.

every enrolment of a deed of bargain and sale in the register office is to be deemed and adjudged to be the entering of a memorial thereof, pursuant to the act, and has the same force and effect upon the estate therein mentioned in relation to all subsequent deeds, as if a memorial of such enrolled deed had been entered in the register office.

By the statute of 7 Ann, c. 20, similar regulations are made for registering all deeds and conveyances that may affect any honours, manors, &c., in the county of Middlesex.

The effect of these acts is merely to render a prior unregistered deed fraudulent and void as to all subsequent deeds, whereof memorials have been duly registered, so that a purchaser or mortgagee can only be affected by a deed duly registered, of which he may have notice by examining the register, and not by any other deed whatever.

The register acts have, however, been so far construed strictly, that every deed under which the party claims must be registered, otherwise a purchaser cannot have notice of it. Upon this principle it has been determined that the registering an assignment of a lease was not a register of the lease itself. (a)

An appointment under a power must also be registered. (b)

If it were the intention of those who framed the register acts that the registering a memorial of a deed, pursuant to these acts, should operate as a notice of such deed to all persons whatsoever, that intention has been disappointed in the construction which the courts of equity have given to them. It has been determined that the registering a memorial of a second mortgage

(a) Honeycomb v. Waldron, 2 Stra. 1064.
(b) Scrafton v. Quincey, 2 Ves. 413.

was not constructive notice to the first mortgagee, who might therefore advance more money on the first mortgage. (a)

On the other hand, these decisions have been considered to have impaired the effect of those acts in establishing, that where a subsequent purchaser, whose deed is registered, has notice of a prior incumbrance at the time of his purchase, although the deed by which such prior incumbrance was created be not registered, such incumbrance shall, notwithstanding, take place of the deed so registered.

As it was the object of these acts to give notice to subsequent purchasers, if a subsequent purchaser has notice at the time of his purchase of a prior conveyance, it is not a secret conveyance by which he can be prejudiced, for his notice of the prior conveyance is as strong as if it had been registered, and it is his own folly if he proceeds in his purchase. (b) But notice of a prior unregistered instrument is unimportant at law. The first registered instrument must prevail at law. (c)

II. In Ireland, by 6 Ann, c. 2, a memorial of all deeds, whereby any lands, &c., may be in any way affected, may, at the election of the parties, be registered in the office in Dublin appointed for that purpose. The deed must be under the hand and seal of some or one of the grantors or grantees, or their guardians or trustees, attested by two witnesses, one whereof to be one of the witnesses to the deed, which witness shall, by affidavit before the register or his deputy, prove the signing and

Wrightson v.

Beatniff v. Smith, 358, pl. 12. Sheldon v.

(a) Bedford v. Bacchus, Amb. 680. Rigge on Regist. Hudson, Rigge, 6. Morecock v. Dickins, Amb. 678. (b) Cowp. R. 712. Cheval v. Nichols, 1 Str. 664. 1 Eq. Cas. Abr. 357, pl. 11. Blades v. Blades, 1 Eq. Cas. Abr. Hine v. Dodd, 2 Atk. 276. Le Neve v. Le Neve, 3 Atk. 646. Cox, Ambl. 624. Jolland v. Stainbridge, 3 Ves. jun. 478. Tunstall v. Trappes, 3 Sim. 301. 3 Sugd. Vend. and Pur. 222. (c) Doe v. Allsop, 5 Barn. and Ald. 142.

2 Sugd. ib. 223.

1 Burr. 474