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A25993
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The reply to Some reflections on Mr. Asgill's Essay on a registry, for titles of lands by way of a letter to the author of the Reflections.
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Asgill, John, 1659-1738.
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1699
(1699)
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Wing A3931; ESTC R13686
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11,774
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41
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THE REPLY TO Some Reflections ON Mr. Asgill's ESSAY ON A Registry FOR Titles of Lands By Way of a Letter to the Author of the Reflections LONDON Printed for Iohn Astwood at his Printing-House behind St. Christopher's Church in Thread-needle-street the backside of the Royal Exchange 1699. THE REPLY TO Some Reflections c. SIR IF I may be intrusted to make an Abstract of my own Essay it is To Assert and Prove 1. That Free-hold Lands in England may be incumbered in divers manners and in divers places which renders the Titles thereunto incertain and therefore is a Deficiency in the Law 2. That the Conveyances by Lease and Release lately invented upon the Statute of Uses being Clandestine Conveyances and now become the common Conveyances of the Kingdom doth occasion a Necessity of a Registry to prevent them And Page 11. I have Challenged the Inns of Court to shew That either the Common Law or Parliaments of England ever directed any Incumbrances to affect Lands but by solemn Livery and Seisin or Matter of Record and that therefore these Clandestine Conveyances are crept in contrary to the true Intent and Meaning of Parliaments and all the avowed Laws and Customs of the Kingdom And this I know it was that gave you Confidence to single your self out as the Goliah of the Law to answer me In which Bully like you Lugg out with a Threat in your Mouth Promising 1. To shew that my Arguments are advanced on Suppositions and Opinions in the Law which are in themselves either false or mistaken or at least very broken and imperfect 2. However they may be just in themselves they conclude nothing to the purpose viz. The Necessity of a Registry And to Charge me with Falshood in the Matter of my Challenge you say Page 22. That Lands were otherwise to be incumbered than by Livery and Seisin or matter on Record And for this you instance 1. By a Lease for Years 2. A Devise by Will 3. A Grant of a Rent Charge 4. A Release to a Disseizor 5. A Surrender For Reply to which in affirmance of my Essay I say 1. That to a Lease for Years at Common Law the Transferr of the Possession by Entry was Necessary to perfect the Conveyance so as to make the Lessee capable of taking a Release which is directly contrary to a Bargain and Sale for Years by the Statute of which I have Complained as being perfectly executed to this intent without any Entry 2. That to a Grant of a Rent there must be an Attornment which is the Seisin of the Rent and all the Possession that a Rent is capable of and by this the Tenant hath the same Notice to know to whom to pay his Rent as he hath by a Feofment of the Land Tho' I Confess that in both these Cases of a Lease for Years and Grant of a Rent the Deeds themselves without any Entry are the initiating of a Title so as to give the Grantees a Right to have their Title perfected for the Lessee by Virtue of his Lease may enter and the Grantee of the Rent may Compel an Attornment and so may a Man by Articles and a Suit in Chancery compel the making of a Deed But 'till these things be done the Title is not perfect But indeed in your Discourse of the Nature of a Bargain and Sale before the Statute you seem to value a Title to a Suit in Chancery as much as a Title to an Estate 3. As to a Release to a Disseizor There is an actual Transfer of the Possession by Entry before the Release can operate and the Entry is as an Essential Part of the Conveyance as the Release for they both make but one Conveyance And because I Observe that whereas I have in my Essay used these Words Livery and Seisin and some other Words as Records Titles Notices c. in their large sense according to common intent you wou'd take Advantage of me by Commenting upon them according to their strict Signification in Terms of Law I 'le endeavour to explain this Controversie about Livery and Seisin When a Deed is made first and the Possession is taken afterwards this the Lawyers call a Feofment And when the Possession is taken first and the Deed made afterwards this they call a Release Now because I won't contradict the Lawyers in their Terms of Art I neither did nor do say that both these are Feofments or that both of them are Releases But I did and do say that according to common Sense they are both the same sort of Conveyances and are both executed by Livery and Seisin because there is an actual and visible Transfer of the Possession in the one as well as the other without which neither of them can be executed But as in the first the Deed being already made there needs nothing more but Possession so in the latter the Possession being already had there needs nothing but the Deed For the Law hates to do any thing twice by Circuity of Action When a Man is in Custody of the Sheriff by any one Writ executed upon him he is in his Custody upon all other Writs then delivered or otherwise the Sheriff must let him go as fast as he takes him in order to take him again And as Littleton Sect. 460. saith It is in vain to make an Estate by Livery and Seisin to another where he hath the possession of the same Land by the Lease of the same Man before And therefore did not you and your Admirers value your selves more upon Knowledge of Terms of Art than the Reason of doing Business you would not vaunt so much of your Victory over me in this Point 4. As to a Surrender I say that a Surrender is not an Incumbrance on Land but a Discharge of an Incumbrance and what I have said in my Essay is of the Manner of creating Incumbrances and not of discharging them For a Judgment which is an Incumbrance upon Record may be discharged by a Release which is not recorded and so several other Rights may be released without Livery oâ— Record and therefore you might as well have instanced in any of them as in a Surrender 5. As to a Devise by Will I say That tho' the Makers of the Law 32 H. 8. by which Lands are deviseable did not thereby particularly direct such Devises to be registred yet they knew that long before the making that Statute Wills were usually registred whereby all the Devises therein might appear And as to what you say That Lands being by the Custom of several Boroughs deviseable before the making this Statute is a sufficient Answer to what I have said of the Custom of the Kingdom to the contrary is by your leave taking a Point of Law without asking For the Custom of the Kingdom is the Common Law of England but the Custom of an Hundred particular Boroughs is not and therefore nothing that you say of them can be an Answer to
wrote better on this Subject if you had a Mind to it And therefore to give you a further Opportunity of shewing that Faculty I shall add something more to my former Assertions as Matter for your further Reflections I. Assertion That the want of a General Registry hath been the Occasion of multiplying Laws to prevent Frauds in the Titles of Lands Proved THat this was the Occasion of making this Statute of Vses 27 H. 8. the several Statutes against Fraudulent Conveyances several Clauses in the Act 29. Car. 2. to prevent Frauds and Perjuries and all the late Acts against Clandestine Mortgages and to secure Purchasers appears by the Preambles of the several Acts which recite abuses by Secret Deeds Uses c. which might have been prevented by a Registry for all Frauds in Titles came by Concealments and when they are Registred they can't be Concealed II. Assertion That besides other Inconveniencies which may and do arise in the Construction and Use of New Laws when they are known the very Multiplication of them is a Burden to the People by rendring them difficult if not impossible to be known by them Proved I may venture to hint at other Inconveniencies in New Laws when the Author of these Reflections Page 53. saith We are not without Experience of some Laws in force whose Design 't is true was the Prevention of Fraud and yet have furnished out more Business for Westminster Hall than the Mistakes they have prevented would perhaps have occasioned Witness the Statute of Vses and Wills Out of which these Clandestine Conveyances have been formed And how many Debates have arisen in the Courts of Law about Deeds fraudulent or not fraudulent and in the Courts of Equity about Notices of Incumbrances Rights of Redemption c. before they come to be settled and known as Judgments or Rules of Courts by the Lawyers themselves But for the meer Layity they can never come to know 'em by reason of the multitude of the particulars and the distance of time between one Act and another and the comparing them together in order to understand them and so they run into the Breach of them without knowing it and therefore if that Question in Twyne's Case Quaeritur ut crescunt tot magna volumina Legum In promptu Causa est Crescit in orbe dolus had been inverted the Answer might have been inverted too Quaeris ut orbis habet tot multae exempla dolorum In promptu Causa est jura volumen habent The difficulty of the Knowledge of the Law is not so much from the abstruseness of the Matter whereby to puzzle the Judgment but from the number of the Particulars which burdens the Memory for all Cases of Common Use are known as well to the Clients as to the Lawyers There is not a greater Article in the Laws of England than The Descent of Lands to the Eldest Son as Heir and yet this being a common Case every Man is his own Lawyer in it And were a Registry settled the Use of it would become so common that the Knowledge of the Law and Practice of it would become universal Whereas the Law of Titles now lying dispersed in several Volumes which must be compared with one another 't is a Discouragement to the Students of the Law themselves to enquire after them The Multiplication and consequently the Ignorance of Laws is a secret Curse fallen upon Man which insensibly consumes his Estate without his taking any Account of it The first Law delivered to Man was terminated in one single Point and that but a Negative Only of that Tree thou shalt not eat which being so short and plain could neither burden his Memory nor puzzle his Judgment But Man refusing to hold his Life by so easie a Tenure he had for his Punishment delivered him a Law of a Thousand Commandments which neither we nor our Fathers were able to bear not from the difficulty of any one Precept for they were all trivial Performances but from the multitude of the Particulars and this very thing of it self without any more cost the People one 5 th of their Estates for so is the Value of Tithes computed to maintain an Order of Preisthood who should apply themselves to that Science only and thereof upon all Occasions inform the People who were otherwise employed And as this Law of Ceremonies and diverse Commandments was delivered for a Curse so the taking away the former and the Abridgment of the latter was the beginning of the Redemption of the World for the Ceremonies of the Levitical Law being taken away by the Death of Christ and the Commandments of the Moral Law being by him abridged into one Precept Do unto all men as you would they should do unto you for this is the Law and the Prophets Every Man's Conscience became his own Lawyer And thereby the Order of Priesthood became ipso facto dissolved as being useless to the World 'till by degrees they rallyed again and getting into Synods and general Councils with Canons Creeds Articles c. they at length split the Gospel into as many Items as the Law was before and thereby regained a pretence to the Tithes which however they could not get settled 'till the 12 th Century after Christ when the Decree of the Council at Lateran An. 1179. or as my Lord Coke saith a decretal Epistle of Pope Innocent the Third An. 1200. procured Tithes to be first appropriated to the Parish Priests And if the Fees certain now payable by the People for the Knowledge of the Laws Ecclesiastick together with the accidental Fees paid for the Knowledge of the Municipal Laws of the Kingdom as they come to have Occasion for them were annually sumed up together their Total would strike deep in the Revenues of the Kingdom Not that I propose to lower the Fees of the Church or the Law as far as there is Occasion for them But could the Occasions of them be reduced I presume the Honourable Professors of either Science would not expect to be paid for nothing III. Assertion That as the Delay of a General Registry hath hitherto occasioned the Multiplying of Laws to prevent Frauds in Titles so the longer it is delayed the more Laws must be multiplyed for that purpose Proved They say a Registry signifies nothing 'till forty or fifty Years after 't is made and so they said fifty Years ago But if instead of that it had been then settled we had now received the Benefit of it And should that Objection prevail in other Cases we must neither plant Oaks nor Orchards but leave off Generation because our issue arrive not to Manhood 'till One and Twenty It is expected that Frauds in Titles will increase and consequently Laws must be multiplyed to prevent 'em and when all 's done it must come to a Registry at last after some more Cheats have inforced it and therefore in the mean time we are at double Charge in mending an Old House