Augustus Moore v. Josiah Collins & William D. Rascoe, 4 Dev. 384

Daniei, Judge. This was an action of Trover, brought by the plaintiff to recover certain slaves and other property, mentioned in an instrument of writing, purporting to be a deed of trust, made by Creecy to the- plaintiff. The defendants pleaded the general issue, and on the trial took five objections to the recovery of the plaintiff.

I shall take notice of the charge of the Judge of the Superior Court only on two of the objections.— First: whether the instrument which the plaintiff calls a deed of trust, ever was delivered, so as to constitute it a deed, or if it was, whether it was delivered at a time subsequent p the lien created on the property, by the test of the defendant’s execution. Secondly: whether the deed of trust under which the plaintiff claims, was registered in six months, as is required by the act of Assembly passed in the year 1820.

The Judge who tried the cause, in his charge to the jury, told them that the words made use of by Creecy, at the time he signed and sealed the paper, would in law, amount to a delivery of the deed. I cannot agree with him in this opinion. The delivery of every deed must be proved as well as the sealing of it, — being an essential requisite to its validity. The deed, if delivered, is good from the time of the delivery, and not from . the date expressed on the face of the instrument.

A deed may be delivered by words, without any act of delivery by the grantor, as if the writing sealed lieth upon the table, and the feoffor or obligor, saith to the feoffee or obligee, go and take up the said writing, it is sufficient for yon, or it will serve the turn, or take it as my deed, ■or the like words, it is a sufficient delivery. (2 Thos. Coke, 235.) But the words must be addressed to the feoffee or obligee, or some person for them.

The words must amount to an authority or license, in the person addressed, to take possession of the deed, and a reception of the instrument by the person spoken unto, must follow the speaking of the words. Whenever the words evidence an assent in the feoffor or obligor to part with the writing as a deed, and at the same time evidence a willingness that the person spoken unto should take the writing as a deed, and a reception of the writing by the person addressed follows the speaking, then the words amount in law, to a delivery.

In the present case, the words spoken by Creecy before the witnesses attested the instrument, were addressed to the witnesses, and not to JVorcum, the plaintiff’s agent. If the words spoken by Creecy had been addrsssed to Nor cum, the subsequent words and acts of Greecij, in refusing to let Norcum have the paper, destroyed the efficacy of the antecedent words. It does not appear that the paper* purporting to be a deed of trust, was ever in Norcum’s possession or power, or that it was intended be should receive it.

It seems to me that there was not any delivery of the deed of trust, on the day it bears date, viz: on the 15th September 1829. But say the counsel for the plain- . tiff, if there was not a delivery on the day the deed bears date, there was sufficient evidence iii the cause for the jury to infer a delivery of the deed to the plaintiff, before the. teste of the defendants execution, which was on Monday, the 21st of September, 1829.

The declarations of Creeey, that he intended to deliver the deed to the plaintiff as soon as he came to town, and that he was expected that evening or the next morning, and the evidence of Smith, that the plaintiff did come to town, the latter part of the week next before the week of the County Court, taken in connexion with the fact that -the plaintiff had possession of thepaper on Tuesday, in thesucceeding week— all this evidence, say the counsel for the plaintiff, was sufficient to authorise the jury to find, that the deed liad been delivered before Monday, the date of the defendant’s execution.

It is further contended on behalf of the plaintiff that as the jury have found the fact that the deed was delivered before the date of the execution, this' court cannot interfere with the verdict, and grant a new-trial, nor disturb thejudgment given thereupon, although the jury may have found contrary to, the weight of the evidence, that belonged exciusivsly to the Superior Court that tried the^ cause. It seems to me that there was evidence sufficient for the jury to have inferred, and so found, that the deed had been delivered.

But I think there was no evidence that could authorise them to do more than barely to guess that it was delivered before the date of the defendant’s execution. It appears to me that there was no evidence to establish the isolated fact that the time of the delivery of the deed, was prior to the time of the issuing of the execution.

There being no evidence to establish that point, the judge should have directed the jury to have found for the defendant, and not have left it discretionary with them to give a verdict any way they might think proper. .The onus of establishing the fact, viz: of delivery of the deed before the test of the execution lay on the plaintiff. (Dickson v Evans, 6 Term. 60.) The other point in this cas.e on which I deemed it necessary to give my opinion, is, on the question, whether the deed having been left with the register in time for it to have been registered, is to be considered in law as registered.

The act of Assembly, passed in the year 1820, requires a deed of trust.to be both proved and registered, in six months; or to be considered utterly null and void as against creditors and purchasers for a valuable consideration. The acts of Assembly usually passed every two years, giving further time to prove and register deeds and mesne .conveyances, contain a proviso to the following effect, “ nothing herein contained, shall be construed to extendió mortgages, or to deeds or conveyances in trust.’!

The Legistature has refused to give any further time to. prove and register deeds of trust, than that contained in the act of 1820. if a deed of trust was offered-to be read in a court of law, containing only a probate without a certificate of registration, could it be received? Could the person offering’ it, excuse himself for not having the register’s certificate of registration endorsed on the deed, by alleging the fact that the register would not perform his duty, .although the deed was left at his office a sufficient length of time to have enabled him to have registered it?

This is the question now, for us to decide. For I take it the actual registration of the deed by the now register after the six months had expired,' was without authority of law and is a nullity. The register is certainly liable on his bond, to make good the damages that any person may sustain by his negligence and omissions. But is t[ic cjeed in Jatv registered, by leaving it at the register’s office a sufficient length of time to enable him to enroll it, before the six months had expired ?

The plaintiff contends that it is, and many cases have.beeh cited from the English law books, of decisions upon the navigation acts, the annuity acts, the mortmain act, and the act for the enrollment of deeds of. bargain, and sale of freehold estates in ‘land. Ridley v McGehee, (ante 2 vol. p. 40,) and the decision of this Court on this case , at-a former period, (ante 3 vol. p. 127,) have been cited. First, as to the ship registry act.

A vendee of a ship in England must, under the statute of 34 Gr. 3. support his title by a bill of sale, or some written contract, but if is not necessary for the completion of his title that the bill of sale should be registered.

When the ship is in port'at the time of the sale, the law requires that the contract of transfer should be endorsed upon the certifícate of registry, and a copy of the endorsement left with the'officer* of the customs, at the port where the'ship belongs, in a reasonable tape after the transfer: and if the ship is at sea at the time the bill of sale is executed, that the vendee should within ten days after the vessel arrived in port, have the endorsement of the contract entered on the certificateof her registry, ■and a copy thereof delivered to the officer of the customs.

Whenever the vendee of a vessel was able to shew that he-had taken a written transfer, and had complied with these •provisionsof^the statute?his title was completeby the meaning of the Legislature, as is to be collected from the very phraseology of the 15th and 16th sections of the 34. G-. 3. without his shewing that the officers had made entries of the transfer, and memoranda or registration of the transaction in the books of his office, and sent a copy thereof, in the time prescribed to the commissioners of customs at London.

The object of this statute was not to give notice of the transfer, or to prevent frauds upon creditors and purchasers, but to prevent foreigners participating in the tonnage and navigation of British vessels. The duties of the officer of the customs at the port,, as well as the duties of the commissioners of the customs at London, as prescribed by the 34 G. 3, are only directory. Their entries were not intended to constitute any part of the title of the vendee. (Hubbard v Johnstone, 3 Taunt. 176.

Heath v Hubbard, 4 East. 310.) I do not think that the cases cited, which have arisen under this Statute, have any bearing on the case now before the court. Secondly: 4s to the decisions upon the Statute, 17 G. 3, c. 26, concerning the registration of the memorials of annuity deeds. This statute requires that the memorial shall be enrolled within twenty days from the date of the deed, and if it is not done in that time, the securities are avoided.

The act requires that a particular roll shall be provided and kept, on which such memorials shall be entered, and proceeds to enact that every such memorial shall be duly enrolled, in order of time as the same shall be brought to the officer, and that the clerks of the enrollments shall specify on the roll, the certain day, hour and time, in which the memorial is brought to the officer, and shall grant a certificate thereof when required.

If a memorial of any annuity is carried into the office within the twenty days, and the clerk specifies on the roll the time that it is brought to the office, let the residue of the enrollment be completed when it may, the memorial enrolled shall be conclusive, and no averment or evidenee, shall be received, to shew that the date is incorrect, Garrick v Williams, (3 Taunt. 540.) The construction which the courts have put on this statute, proceeds altogether upon the circumstance that the law requires the clerk of the enrollment to enter on the roll the day and hour the memorial is delivered into the office, and likewise from a disposition in the courts to give to the act that operation intended by the Legislature.

It was said by Chief-Justice Mansfield, that it might be impossible for the officers to put the entire enrollment of all the memorials on the roll every day, or even every month.. Our act of 1820, has no clause directing the register to note in the books of registry, the day of the delivery of a deed of trust to the officer. A subsequent act passed in the year 1829, has required it to be done, but this case is governed by the act of 1820. Tiie Lc-gislature in allowing the deed of trust to be proved and registered in six months, has given ample time.

There is no danger to be apprehended of such a press of business in the office, as to deprive a party of the benefit of the act, if he uses ordinary diligence. Thirdly: the statute of 27, H. 8, C. 16, requires all deeds of bargain and sale for the conveyance of freehold estates in lands, to be enrolled in six months after their date, or they shall have no effect. MansfieM, C.J. in delivering his opinion in the case of fíamele v Williams, remarked that since the 16th of Elizabeth, the date of enrollment had been entered, and the courts look to the roll only, and no further.

He cites Hynde’s case, (4 Rep. 71.) and Gilbert on uses. The same rule has been followed I suppose, as is laid down by the courts, in the case, of the enrollment of the memorials of annuities. This explains the reason why we are unable to find any case in the books upon this subject.' No case can be found decided under the mortmain acts which throws any light on the subject. I think I may say there is nothing in the British authorities that can aid us in deciding this cause. We will advert to the decisions in this country.

The case decided in Connecticut, and reported by Kirby (page 72,) is in unison with the decisions of the British Courts under the annuity act. The law of that State requires' the day when the deed is delivered to the Registers, to be entered on the roll, and the court would not permit parol evidence to be let in, to shew a registration at a different day. In this State, there is the case of Ridley v. McGee. The. principle decided by the court in that case is very near being in point for the plaintiff in this.

A majority of the judges of the Supreme Court, when this case was beiorc them at a former period, were of the opinion that the plaintiff had done all that the law required him to do. The judge who delivered the opinion of the court, rests the opinion on the ground that the Legislature had failed to provide an officer. The want ot registration, he says, is not to be imputed to the grantee, nor ought the defendant to derive any benefit from the failure, because the Legislature enacted the provision of registra-tration for his benefit; and if through its omission, there was no register, he cannot complain.

It appears to me that the judge mistook the facts. The deed was proved on the 22d of September, 1829, and the register lived until some time in the month of December, in the same year. The deed was placed in his hands five or six weeks after the day it was proved in court.— The first point insisted upon by the plaintiff was that his deed had not been registered in six months, not because there was no register, but because it had been prevented by the negligence'] of the Register without the default of plaintiff, Ridley v McGee, is a case as it appears to me, that stands on its own bottom.

I know of no authority either in the English or American adjudications to support it. What was heretofore done in this case, I consider rather as a breaking of the cause than as having a binding effect on the court in this its ultimate determination. After giving the case all the attention and research I am able, I am forced to say, sitting in a court of law, that the Superior Court should not have permitted the deed of trust to have been read as evidence to the jury without registration, and that leaving it at the Register’s office, under the circumstances stated, was not in law, a registration.

The reason made use of by the member of this court, who dissented from the opinion delivered when the case was here before, is so strong and cogent as to convince my mind, and forces me to decide for the defendant.-— What a court of Equity would do, if the case were there, we arc not called on to say. I am of the opinion a new trial should be granted. RuppiN, Chief-Justice. I feel that I am called upon to make some observations upon one of the points made in this case; and I propose to .confine myself to that. The judge who tried the cause, held that the deed was duly registered.

In that particular he delivered an opinion Conforming to that of this Court in this case when here in December 1831, and in opposition to tjiat entertained by himself upon the first trial. Had I sat at the last trial, I should certainly have acted as his Hon- . , T or did. Indeed, I must say, that sitting even where I (]0? j iiave entertained the second argument with the greatest reluctance. A question on which the Court is divided must be'admitted to be at least doubtful, and one purpose of a Court of final resort is, to render that certain which was before in doubt.

This is one of the most useful functions of such a court : to establish the rule, and settle the law. None assuredly can he more sensible than myself of the importance of respecting the decisions of this Court, as definitively fixing the precise point decided. It cannot surprise that I should privately entertain the opinion I formerly did, because nothing but a deep conviction could have prevailed on me to dissent publicly from the eminent men under whom I sat in 1831.

Tet upon the motives alluded to, it would become me to yield my own judgment and conform to theirs, and so I should unhesitatingly, if the opinion entertained by the present members of the Court, did not make it necessary for me again to dissent from them, in giving my voice in conformity witli the former decision.

My brethren think, as the question is brought here for review in the very case in which it was decided, as the decision is itself recent, and has not become incorporated inveterately into our jurisprudence, so as to become a rule of property on which counsel and the community Ii§ve acted to a great extent, that it may if wrong, be corrected without introducing an evil in the remedy, greater perhaps than that constituted by the error itself.

Being thus obliged again to express my opinion, and entertaining now, notwithstanding the unfeigned deference which I profession the knowledge and parts, and the profound reverence which I cherish for the memories of those great men, the same sentiments I then did, I must express my real opinion, and act on it as it is. The principle which governed me before was stated to be this.

That the statute in express terms without any proviso,saving, or equity, declares a deed not proved and registered within six months void, Tl¡e same principle governs me yet, I cannot get rid of it.' Nor have Í been able to devise the means of controlling the direct and emphatic words of the statute, upon any reasons of the hardship of a case, supposed or imagined not to have been within the contemplation of the Legislature.

My opinion is, that when a statute prescribes a ceremony as necessary to the legal validity of a contract or instrument, there can, at law, be no substitute for it, nor can it be otherwise dispensed with, on any pretence. The instrument would as a deed of trust be as effectual without a seal, as without registration. So, a parol contract, when one in writing is prescribed, as in the statute of frauds, has never been admitted at law to be binding, under any circumstances, though under many, such contracts are enforced in equity.

Unless the prescribed ceremony exists, a court of law cannot hear the instrument as evidence. Like a stamp when that ceremony is required, registration impresses on the instrument its competency as evidence. The principle is not impaired when its application is to

an act to be done by a public officer, or other third person. It may be possible that it would be, as against the person himself on whom the duty is imposed. It is likewise true, that

an act may be so framed as to make it apparent, that some of the provisions are addressed to a private pex-son, and some exclusively to an officer ; and in many instances the latter may, upon the intention, bo held to be merely directory, and not as avoiding’ private contracts upon the non-observance of those directions by the office]’. But this can never apply to a case, in which the statute is positive, that for the want of those very things, which the officer is to do, and which he alone can do, and for the want of them only, the instrument shall be void.

It would render the statute contradictory and absurd upon its face. I cannot conceive a justification to the judiciary for refusing obedi-. ence to the plain words of a statute, which the Legislature is competent to pass. In the form of adjudication, I should consciously feel it in my own case, to be legislation. I do not think it necessary to enlarge upon the danger of such irresponsible legislation. But to the judiciary itself it would be, attended with interminable and distressing inconveniences.

This law was intended to establish a clear and certain rule in every case, whereby the rights of general creditors and purchasers, as against deeds of trust might be determined by a single matter of fact, simple in its nature, susceptible of clear and explicit proof of record as it were, and not susceptible of any variations by the shades which surrounding circumstances might cast on it.

But once admit a departure from tire law and we shall let in a thousand questions upon diligence, accident, the fraud of the officers and others, and the acts of God, which it will take ages to settle, and which perhaps never can be settled until another statute should sweep down the cobwebs of the closet. Suppose these cases : that instead of the Register dying, he should be sick, or that he should be contumacious and refuse to register the deed, or that the witness refuse to prove it, or got sick and could not, and the party would not acknowledge it, or that it were mislaid by accident.

In all these cases and the like, the hardship is the same; and in all, the law is alike to be left out of sight. Another case: Suppose the clerk had refused to deliver the deed to Mr. Moore, or to the Register, or had burned it; surely, those cases would be within the reason of this, and proof of the contents of the deed, though unregistered, must be heard. Yet state the case on the other side, and it is obvious to our apprehension, that the principle cannot be carried out, and will itself, work injustice. If the deed had been delivered by Creecy to Mr. Moore on Tuesday, so that Mr.

Collins’ execution, tested of the day preceding, would have a preferable lien when sued out; but yet the clerk, by conspiracy with the plaintiff, had positively refused to make out a fien facias until after the next succeeding term: No body will say, that at law, the lien would remain, or that upon suing out the execution four months afterwards, it could be carried back to the day, as of. which it ought to have been tested. Why shall one of these creditors suffer loss from the malfeasance of the same public officer, and the other not?

How can this he done at law, upon a supposed equity, when in a court of equity the principle is, that creditors have equal equity, and that he to whom accident or dilligence, or Providence, or any other means, except his own fraud, gives advantage, may keep it, it being a plank in' a storm. The plaintiff does not pretend an equity against his antagonist. His complaint is against the law, and the officer of the law. A complaint of the former kind, a court cannot redress ; nor one against the officer in this form.

I need not repeat tiie references to the methods of pleading deeds enrolled, nor to the decrees in Chancery against a purchaser with notice of a prior unregistered deed. I only remark, that they retain their former impression on my mind. But cases have been cited for the plaintiff in the last argument, which do not tend as I understand them, to shake my opinion; but which it is proper I should nevertheless notice. Those upon the British navigation acts do not require particular analysis, because they are less applicable than those on the statute of enrollments, and of annuities.

Indeed a decision in any way, upon those voluminous and complicated navigation statutes, would he deemed but an authority on the construction of the very claims under consideration. But the Statutes of Enrollment (27 Hen. 8,) and the Annuity act, (17 Geo. 3,) come nearer to ours. The former like ours, says that no use in an estate of freehold, shall pass by deed of bargain and sale indented, except it be enrolled within six months.

The act of 1820, says no deed of trust shall be good, as against creditors and purchasers, unless it be pi’oved and registered within six months; and then with an apparent purpose to make all believe the Legislature to be in earnest, it is repeated in the last sentence, that all deeds not so proved and registered, shall be held as utterly null and void. The 17 Geo.

S, requires every mcmori-¡ ai to be. enrolled within twenty days and directs that a particular roll shall bo provided for that purpose, and that each memorial shall be duly enrolled in the order of time it shall be delivered to the officer, and that “ the clerk shall specify on the roll, the certain day, hour or time, on which the memorial is brought to the office, and shall grant a certificate of the enrollment when required?” It is supposed that it has been held under these acts, that a delivery into the office, satisfies the act, and as between the parties, amounts to enrollment.

An authority to that effect, I should admit to be directly in point. Those adduced do not seem to be of that character, but to the contrary. They are Hynde’s case, (4 Rep. 68,) add Garrick v Williams, (3 Taunt. 540.) I will consider the latter at once. The case was, that the memorial of an annuity was in due season, inaccurately enrolled, and some years afterwards, the clerk corrected it in the margin, by the original in the office, and before any attempt to vacate it.

Upon the ground of this error, the grantor moved to set asido a judgment taken under a warrant of attorney given to secure the annuity, and to vacate the the warrant itself. To meet this case, the grantee produced a certified copy of the enrollment as corrected, and purporting to he as of the day of delivery into the office, within the twenty days.

He also road the affidavit of the clerk, explaining the error and its correction, and that it was the course of the office, thus to make corrections, and also upon receiving a memorial, and marking on it the time, thence to consider the enrollment complete, and afterwards to enroll it as of that time. The court though, inclined to sustain the proceeding if possible* in respect to the course in the office, yet admitted the question to be attended with considerable difficulty, and took time to advise on it. The opinion was afterwards delivered by Chief-Justice Mansfield against the application.

He confines himself to the single reason, that the court would look to the enrollment as it then was, and to that only, and as that was correct, would enquire no farther It is plain that the evidence in the affidavits was wholly disregarded, and that no attention was paid to the particular hardship or circumstances.' — ■ How far the ground of decision is consonant to principle, or meets the views of the Legislature it is not for me to judge. But admitting it to be correct, the point decided is essentially different from that in question before us.

Our case is, that it appeal's upon the registration itself, that it was made after the expiration of six months.— Had that been so in Garrick v Williams, the Court of Common Pleas must upon their own principle, have held it void, although the memorial had been deposited within twenty days. The fact was, the enrolment was not within twenty days, but it purported to be so. The Court say they will hear nothing against the statements in the, enrolment. Why? Because, if they did hear it, the whole' would be avoided.

The decision is not that the facts if shewn were insufficient; but that the official certificates ou the original and rolls should not be contradicted. This implies that the case in support of the motion, if sustained by competent evidence, was in itself sufficient. For the reason for excluding the evidence was that it would prove the certificates to be false in respect of the time, and if thus false, the law avoided the whole.

Whether registration in our law by a person not an officer of a Court of record, and not purporting to be of any term of such a court, can to any purpose be regarded as a record, not admitting of contradiction, it would be but a dictum now to mention. If it even be so then both upon the real fact, and upon the fact as appearing on the deed and registration, this case is against the plaintiff. Here the defendants aver nothing against the record, but rely on the fact as therein set forth. The registration was not within six months as stated in the registration.

The evidence therefore comes from the plaintiff himself; not indeed that the certificate is false, but to shew that the deed could, and ought to have been registered sooner. The Court of Common Pleas said that as the c!erks might not be able to enroll all the memorials that were brought in, as they were delivered, the delivery into the office ought to be considered the enrolment. The judges could not deny that this was against the act of Parliament, and could not be carried through, if the real time of the registration appeared.

To avoid that consequence, resort was had to artificial reasoning to establish the enrolment, by a fiction, to be at an earlier day than it really was. This is said to be upon the authority of decisions in the old law upon the statutes of enrolments, that the Court should look to the roll and no further. Hynde’s case is also there referred to, and ‘Gilbert’on uses, and Sir T.

Howard’s case, (Owen 132.) •Gilbert says, “as to averring an enrolment, this must be understood when the time was not entered on the record; but since 16 Elia, the date of the enrollment has been entered.” I have been unable to find the case stated to be reported in Owen, but I have no doubt the point is ruled there, as we find it mentioned in other books of authority.

Chief-Baron Comyns lays it down, (Bargain & Sale, B. 10.) hat before 16 Elia, no day of enrolment used to be entered, and then it might be averred that it was not enrolled within six months, but since that time, it cannot be averred that it was not enrolled at the day endorsed for the enrolment, for that is part of the record. For this he cites with his approbation, 2 Roll. 119, 120. Those reports are not to be had here, but the case referred to, is Worsly v Felisker, and is stated as from Moll, in 14 Vin.

Abr.443, Inrolment, A. pl. 4. as follows: An indenture of bargain and sale, was enrolled in Chancery, exemplified under seal, and at the end was a memorandum, viz: that it was enrolled, but no time mentioned when it was done, but the plaintiff offered to prove by circumstances that it was within the six months.

Upon which great debate arose, but a Clerk being sent to the enrolment office by the Court, to know their usage as to inserting the time of the enrolment, he certified on his oath, that they informed him that before the 16 Elia, (at which time the en-rolment office was erected,) they did not use to insert the time, but they are used to do otherwise now; which was 17 Jam. 1. — Mr.

Finer says in the margin, that now it is constantly used, and to good purpose in respect to the more easy and readier proof of the enrolment upon any occasion, for credit is given to the endorsement •without any further proof, as being made by a known officer, intrusted for that purpose. From these authors, it thus appeal’s the certificate is evidence as well of the time, as of the fact of registration, and moreover, that being there, to this purpose, considered in the light of a record, no direct averment can be received against it. To a certain extent their rules have been received here.

The certificate of the Register is evidence of the registration of a deed, requiring it, on which it is read without other proof of the registry, and in a case in which the time of registry is material, doubtless the certificate to that fact is, at the least,, prima facie evidence of it. Whether it be conclusive is not so clear, and has never been decided. If both the registry and the certificate on the deed be silent upon that point, it must of necessity be open to proof from any person whom the time affects. (Doe ex dem, Haughton & Slade v. Rascoe & Gray, 3.

Hawks 21.) But whenever it does appear by any of those means, legally competent in any particular case to bring the fact to judicial cognizance, that the registry was at a particular time, all advantage may be taken of the fact, either in giving effect to, or impugning the operation of the deed. Garrick v Williams is itself authority to this point; for the Court to escape from the effect of the fact, would not hear evidence of it, because inconsistent then with what was called the record. To this case the principle was applied, that respects an entry nunc pro tunc, as being the original entry.

But the general proposition just laid down is fully supported from the very authority (Hynd’s case) cited there, and relied on in the argument here. That case was that tenant in fee leased for years, and then made a bargain and sale of the reversion to the plaintiff on the 7th May, (30. Elia.) on which the plaintiff declared in waste against the tenant, as being enrolled (within six months according to the statute) in C. B. T. Pasch. of that year.

The defendant confessed (.lie seisin of her lessor, ami the lease to her, and pleaded' that after the 7th May, and before the bargain and sale W([S enroiied} the bargainor 15 Pasch, in the same year, levied a fine to the plaintiff and his heirs, after which fine levied, the deed was enrolled in C. B., and that the defendant had never'attorned : to which the plaintiff demurred. The whole case turned on the question, whether the actual time of thc enrolment could be shewn to be after the fine, both being stated on the record to be Easter Term.

For, if it was not after the fine, or could not be so shewn to be, the bargainee was in under the statute of uses, without attornment, and so could maintain waste ; but if in by the fine, then attornment was necessary. The Court held that the deed after enrolment hath generally relation back to tbe delivery, so as to avoid mesne estates made to a stranger by the bar-gainor, butnot so as to divest the estate settled in the interim by the fine in the bargainee himself; which made him in, in the per. There arose a question whether the true time could be averred.

It was objected that it could not, because both must be taken to refer to the same time, namely the first day of the terra, and was to be tried by the record, and not put in issue, as a matter in pais to be tried by the jury, and that it-would be dangerous, as it might come after a long time when witnesses were dead.

But the whole Court held that although the presumption was that the enrolment was in Easter Term, and on the first day of it, yet that it was hut a presumption by fiction, of 1 aw, and the precise time might be averred by any who had an interest to do so, and the true time here was agreed by the parties, being confessed by the demurrer. The averment, it was admitted, could not he made against a record, but this was in that case deemed to extend only to the enrolment, and not to the time of it.

It is to be remarked in the first place, that this case occurred seventeen years after the erection of tire enrolment office in 16 Eli», and no notice is taken of it. The particular day was either not.generally inserted then in the registry and certificate, or had been omitted in this case ; or if inserted, it did not appear in the pleadings, and had not been relied on by the plaintiff as an es-toppel.

An estoppel may be waived, and is waived when it may be, and is not relied on in the record, by the party entitled to tiie benefit of it; here the plaintiff declared on the deed,as enrolled generally within six months and mad & proferí of it. The defendant confessed such an en-rolment, but said that it did not pass the estate, because before it was in fact made, the bargainee had the estate in himself by a higher species of assurance, so that there was no seisin in the bargainor out of which the use could arise.

True, the defendant could not by plea to the country, deny the enrolment; and it may also ho true, that he would not by such plea, after 16 Elia. have been permitted to aver the time different from that stated in the declaration, and there stated as by the en-rolment appearing. But the plaintiff did not so declare, nor did he supply that defect by a replication, that the enrolment was before, or at the same time with the fine, as by the enrolment and the record of the fine appearing.

On the contrary he demurred, and thereby admitted ilie fact as pleaded, insisting generally that he had made legal and conclusive proof of the true time upon the presumption that it was on the first day of the term. This the Court held otherwise, because his own demurrer admitted that in this case, the presumption was false. The decision seems to be in point hero.

The particular matter ruled in it is, that even when the party can insist upon a particular fact, by relying on the evidence of it as an estoppel, yet if lie will not so rely, but admit upon the record, that the fact is otherwise, the court must proceed upon the truth ; and where the admission is of the fact of enrolment, at a particular day, different from that presumed prima facie, whereby the deed is ineffectual in law, it shall be so held.

The same consequence must follow when the party’s own proof shows the day of the enrolment to be not within the time prescribed, as if that appeared on the enrolment, or if that he silent, upon other evidence. The farthest any case has gone is, that if the enrolment appear to he right,- and in due time, and the party rely upon the record as establishing the facts, by way of es-toppel, and doth not leave it at large, by such pleading as puts the real time in issue, nor confess it on the record, tiie court will not bear evidence against the matter appearing on the enrolment. Such was the case of Garrick v.

Williams; which being a motion in which there could be no pleadings, the grantee had a right to rely on the estoppel, as it arose upon the evidence. But if the enrolment had itself shown, that contrary to the legal presumption, that it was made on the day marked on the memorial, as that on which it was left in the office, it was i n truth, enrolled after the expiration of twenty days, the decision must have been that it was not duly enrolled, and was void. That is the very case we are considering. This registry purports to be made after the six months.

Upon the principle of the last case, and the rule said to have been adopted upon the course of the office after 16 Elia, the plaintiff could not aver the contrary. Upon that I give no opinion. He docs not attempt it, but insists that though not purporting to be made, nor in fact, made within six months, but afterwards, it is nevertheless as good as if it had been thus made. To that there is no authority, and the words of the statute are clear, direct, express and positive against it.

There is no room for construction: nothing in the act from which an intent can be collected, as distinguished from the import of the penal words, which embrace every case without exception. Indeed the very thing which according to the statute, avoids the deed, is the act — registration within a particular period — to which the officer alone is, and the party is not competent.

I have had occasion before to remark and I now repeat, that in my opinion the unreasonableness, hardship, or injustice of a statute cannot, where the words are plain, and denote unequivocally a settled intention, authorize the judicial repeal of it, under the name of

interpretation. Here the terms are not obscure, nor the sense doubtful, but as plain as language can make it, and therefore they admit of no control by way of exposition.— There can be but one possible exception. As against the Register himself, a delivery to him might perhaps, be a registration. But as to third persons, they are not charged with the duty of performing any act touching the registry, and therefore cannot be affected by any omissions on the part of the plaintiff, or the officer. Thus thinking I concur that the judgment of the Superior Court shall be reversed, and a venire de novo awarded. Per Curiam. — Jubgmext reversed.