until the 15th of May, 1797, and was not recorded in the secretary's office until the 30th of June in that year. It was contended that the indenture of the 2nd of May, 1791, from the lapse of time in proving and recording, it had lost its priority. It was on the other hand insisted, that although the indenture was not proved or recorded until the times above mentioned, yet as this indenture was the identical mortgage mentioned and referred to, and intended by the said indenture of the 11th of October, 1791, and to which the moiety of the plantation was made subject, and of which the said M. G., at the time of making the said last mentioned deed, had full notice, and as it was an existing mortgage at the time of the execution of the indenture of the 11th of October, 1791, the said M. G., under whom the respondent claimed, had express notice of it, and took the said moiety of the said estate, subject to the principal money and interest secured by the said mortgage. By the decree of the Court of Chancery of Jamaica, of the 24th of May, 1803, the mortgage of the 2nd of May, 1791, was postponed to the previously recorded indenture of the 11th of October, 1791, but on appeal to the Privy Council this decision was reversed. (a) Lord Redesdale, in a case which has been already cited, stated it to be the doctrine of the courts in the colonies, that registry of a deed is not notice of that deed. His lordship had been misinformed, it is conceived, on this subject. It has been uniformly considered that a registered deed is notice. The practice of the profession is in conformity with this opinion. The investigation of the title to an estate is made by means of the searches in the register's office. The same opinion prevails in the United States. It has been stated by the learned commentator on the (a) Gallimore v. Scarlett, on appeal. Burton v. Whepler, Chy. Jam. 1811. American Laws, that the registry of the deed is held to be constructive notice of it to subsequent purchasers and mortgagees. (a) But a deed unduly registered, either from want of a valid acknowledgment or otherwise, is not notice. (b) Under the recent act of Prince Edward's Island, it has been seen that no constructive or other notice of any unregistered deed can in any manner defeat or affect any deed which has been duly registered. (c) The act applies only to deeds executed in the island within three months, and to other deeds within twelve months after the passing of the act. In Maryland, the non-registration within the prescribed time would entirely defeat the deed, but the registry act of that state enables the Court of Chancery, on a bill being filed, to authorize the recording it, even at a subsequent period, but it will be postponed to all intervening incumbrances. It is said that according to the law of this state, notice of the title under a prior unrecorded deed, has no legal effect whatever. (d) Frost v. Beckman, 1 Johns. Shaw v. (a) Johnson v. Stagg, 2 Johns. Rep. 510. Ch. Rep. 298. 18 Johns. Rep. 544, S. C. Peters v. Goodrich, 3 Conn. Rep. 146. Hughes v. Edwards, 9 Wheat. Rep. 489. Thayer v. Cramer, 1 M'Cord's Ch. Rep. 395. Evans v. Jones, 1 Yeates's Rep. 174. Poor, 6 Pick. 86. Lassell v. Barnett, 1 Blackford's Ind. Rep. 150. (b) Heister v. Fortner, 2 Binney's Rep. 40. Hodgson v. Butts, 3 Cranch, 300. Morrison v. Trudeau, 140. Frost v. Beekman, 1 Johns. Ch. Rep. 1 Martin's Louis. Rep. N. S. 384. 4 Kent's Comm. 174, 175. (c) 3 Wm. 4, c. 10, § 10. (d) Griffith's Reg. CHAPTER IX. OF THE LAW WHICH GOVERNS IN THE MODIFICATION, TRANSFER, &c. OF IMMOVEABLE PROPERTY. In the modification and creation of estates or interests in immoveable property, if the law of the domicile is opposed to that of the place in which the act of substitution or entail is passed, or to that of the situs, the law of the situs must prevail.-In the transfer of property, distinction between the contract to transfer, and the actual transfer.-The rule to be adopted, when the person is capable by the law of his domicile to contract, but incompetent by the lex loci rei sita to transfer.-The property which may be alienated, and the persons to whom, and the purposes for which the alienation may be made, are exclusively determined by the law of the situs. In what cases the place of the domicile, or that of the locus contractus, may be invoked in questions regarding the transport of immoveable property. Of things which are of the essence, of the nature of, or accidental to the contract.-The construction of its terms when the legal effect, or the meaning, in loco contractus, is not the same as in loco rei site. That which constitutes traditio, or the valid transport, decided by the lex loci rei site. The law which determines on the validity of the instruments, or actes of transfer.-When writing is required to the validity of the contract, or as the mode of proof.-On the necessity of registration, and the consequences of non-registration.-Partitions, judicial sales, exchanges, and donations subject to the same rules as transfers on sale. THE summary given in the preceding chapters exhibits a great diversity amongst the laws which regulate the modification and creation of estates and interests in real property, and the transfer and acquisition of it. The law of the place where the act making the modification or alienation is passed, frequently differs either from that of the place in which the party to the act was domiciled, or from that of the place in which the property is situated. It becomes necessary to inquire which of these con flicting laws is selected, and what are the principles on which the selection is made. There exists a difference of opinion amongst jurists as to the law which ought to govern the decisions of some of the subjects comprehended under the titles which have been just mentioned, when one of the conflicting laws affects persons as well as things, or where it applies to the form and solemnity of the acte, by which the modification or alienation of property is passed, as well as to things. The primary or principal object of the law, or the comparative degree in which, in the one case, it affects persons or things, and in the other, the form of the act or thing, affords the ground on which some jurists consider the law as real or personal, and accordingly adopt the lex loci rei sitæ, or the law of the domicile, or that of the place in which the act is passed. In the opinion of other jurists, if the law of the situs be prohibitive, it must be preferred to the personal law of the domicile, without regard to the object of that law, or its immediate effect on the status of the person. There is, however, no difference of opinion amongst them in adopting the lex loci rei sita in all questions regarding the modification or creation of estates or interests in immoveable property. This subject does not involve any of the considerations which, in other cases, produced that difference of opinion. The law primarily and principally affects things. It is wholly independent of the status of persons, and is strictly a real law. There is the concurrence therefore, not only of those jurists who give the greatest effect to the lex loci rei sitæ; (a) but even of those who are disposed to give such an effect to laws affecting the general status of persons as would greatly control the operation of the lex loci rei sitæ. (a) Molinæus ad Cod. lib. 1, tit. 1, Bouhier, Chassaneus, P. Voet, J. Voet, Pothier. Thus, according to the definition of Rodenburg "in It is comprised in the rule laid down by Burgundus: The doctrine of D'Argentre is to the same effect: "Item de modo rerum donandarum, et quota dona- The doctrine of Du Moulin is, "in his quæ con- Boullenois also concurs in treating those laws as real: (a) De Jure quod oritur, tit. 1, c. 2. (d) Du Moulin, Tit. de Fiefs. § 12, gl. 7, n. 37. (b) Burg. Tr. 1, n. 4. |