[340] raising of the uses ts to revoke such as were then declared; BEFORE We conclude, it will not be improper to subjoin a few remarks upon such deeds as are used not to convey, but to charge or incumber lands, and to discharge them again: of which nature are, obligations or bonds, recognizances, and defeazances upon them both. 1. An obligation, or bond, is a deed' whereby the obligor obliges himself, his heirs, executors, and administrators, to pay a certain sum of money to another at a day appointed. If this be all, the bond is called a single one, simplex obligatio: 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, the bond becomes forfeited, or absolute at law, and charges the obligor, while living; and after his death the obligation descends upon his heir, who (on defect of personal assets) is bound to discharge it, provided he has real assets by descent as a recompense. So that it may be called, though not a direct, yet a collateral, charge upon the lands. (27) How it affects the personal property of the obligor will be more properly considered hereafter. See Appendix, N° II. pag. xi. u Co. Litt. 237. ✓ See Appendix, No III. pag. xiii. (27) The obligor does not necessarily bind his heir by his bond; and unless he does so expressly, the law will not imply the obligation, Co. Litt. 209. a. And where the heir is thus expressly bound, his liability extends only to the amount of the assets descended. 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 stand single, and unconditional; for it is the folly of the obligor 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, [ 341] or the act of the obligee himself, there the penalty of the obligation is saved; for no prudence or foresight of the obligor could guard against such a contingency". On the forfeiture of a bond, or it's becoming single, the whole penalty was formerly recoverable at law: but here the courts of equity interposed, and would not permit a man to take more than in conscience he ought; viz. his principal, interest, and expenses, in case the forfeiture accrued by non-payment of money borrowed; the damages sustained, upon non-performance of covenants; and the like. And the like practice having gained some footing in the courts of law, the statute 4 & 5 Ann. c. 16. at length enacted, in the same spirit of equity, that, in case of a bond conditioned for the payment of money, the payment or tender of the principal sum due, with interest and costs, even though the bond be forfeited and a suit commenced thereon, shall be a full satisfaction and discharge. (28) 2. A recognizance is an obligation of record, which a man enters into before some court of record or magistrate duly authorised, with condition to do some particular act; as to appear at the assises, to keep the peace, to pay a debt, or the like. It is in most respects like another bond: the difference being chiefly this: that the bond is the creation of a fresh debt or obligation de novo, the recognizance is an acknow w Co. Litt. 206. 6 Mod. 11. 60.101. Salk. 596, 597. y Bro. Abr. tit. recognizance, 8-14. (28) See post, p. 465. ledgment of a former debt upon record; the form whereof is, "that A. B. doth acknowledge to owe to our lord the king, "to the plaintiff, to C. D. or the like, the sum of ten pounds," with condition to be void on performance of the thing stipulated in which case the king, the plaintiff, C.D., &c. is called the recognizee," is cui cognoscitur;" as he that enters into the recognizance is called the cognizor," is qui cognoscit." This being either certified to or taken by the officer of some court, is witnessed only by the record of that court, and not by the party's seal: so that it is not in strict propriety a deed, though the effects of it are greater than a [342] common obligation: being allowed a priority in point of payment, and binding the lands of the cognizor [even in the hands of a purchasor bona fide and for valuable consideration] from the time of enrolment on record". There are also other recognizances, of a private kind, in nature of a statute staple, by virtue of the statute 23 Hen. VIII. c. 6. which have been already explained a, and shewn to be a charge upon real property. 3. A DEFEAZANCE, on a bond, or recognizance, or judgment recovered, is a condition which, when performed, defeats or undoes it, in the same manner as a defeazance of an estate before mentioned. It differs only from the common condition of a bond, in that the one is always inserted in the deed or bond itself, the other is made between the same parties by a separate, and frequently a subsequent deed. This, like the condition of a bond, when performed, discharges and disincumbers the estate of the obligor. THESE are the principal species of deeds or matter in pais, by which estates may be either conveyed, or at least affected. Among which the conveyances to uses are by much the most frequent of any though in these there is certainly one palpable defect, the want of sufficient notoriety; so that purchasors or creditors cannot know, with any absolute certainty, what the estate, and the title to it, in reality are, upon which they are to lay out or to lend their money. In the antient 2 Stat. 29 Car. II. c. 3. See pag. 161. Co. Litt. 237. 2 Saund. 47. feodal method of conveyance, (by giving corporal seisin of the lands,) this notoriety was in some measure answered; but all the advantages resulting from thence are now totally defeated by the introduction of death-bed devises and secret conveyances: and there has never been yet any sufficient guard provided against fraudulent charges and incumbrances; since the disuse of the old Saxon custom of transacting all conveyances at the county-court, and entering a memorial of them in the chartulary or leger-book of some adjacent monastery; and the failure of the general register established by king Richard the first, for the starrs or mortgages made to Jews, in the capitula de Judaeis, of which Hoveden has [ 343 ] preserved a copy. How far the establishment of a like general register, for deeds, and wills, and other acts affecting real property, would remedy this inconvenience, deserves to be well considered. In Scotland every act and event, regarding the transmission of property, is regularly entered on record ". And some of our own provincial divisions, particularly the extended county of York, and the populous county of Middlesex, have prevailed with the legislaturee to erect such registers in their several districts. But, however plausible these provisions may appear in theory, it hath been doubted by very competent judges, whether more disputes have not arisen in those counties by the inattention and omission of parties, than prevented by the use of registers. d &c. Hickes Dissertat. epistolar. 9. e Stat. 2 & 3 Ann. c. 4. 6 Ann. c.35, Dalrymple on feodal property, 262. 7 Ann, c. 20, 8 Geo. II. c. 6, CHAPTER THE TWENTY-FIRST. : OF ALIENATION BY MATTER OF RECORD. ASSURANCES by matter of record are such as do not entirely depend on the act or consent of the parties themselves but the sanction of a court of record is called in to substantiate, preserve, and be a perpetual testimony of the transfer of property from one man to another; or of it's establishment, when already transferred. Of this nature are, 1. Private acts of parliament. 2. The king's grants. 3. Fines. 4. Common recoveries. I. PRIVATE acts of parliament are, especially of late years, become a very common mode of assurance. For it may sometimes happen, that by the ingenuity of some, and the blunders of other practitioners, an estate is most grievously entangled by a multitude of contingent remainders, resulting trusts, springing uses, executory devises, and the like artificial contrivances; (a confusion unknown to the simple conveyances of the common law;) so that it is out of the power of either the courts of law or equity to relieve the owner. Or it may sometimes happen, that by the strictness or omissions of family-settlements, the tenant of the estate is abridged of some reasonable power, (as letting leases, making a jointure for a wife, or the like,) which power cannot be given him by the ordinary judges either in common law or equity. Or it may be necessary, in settling an estate, to secure it against the claims of infants or others persons under legal disabilities; who are not bound by any judgments or decrees of the ordinary courts of justice. In these, or other cases of the like kind, |