By a clause in the Act of Settlement all deeds of Mortgage were required to be entered into the records within six months after their execution, otherwise to be of no effect in the law. With the exception of this clause, which was confined to mortgages, there was, previous to the 14th Dec., 1847, [note 1] no statutory regulation requiring the recording or registration of deeds affecting real estate in the Island. Notwithstanding this, the custom of recording deeds universally prevailed in the Island ever since their introduction in lieu of the ancient symbolical mode of transfer and the entry on the Roll. The almost invariable practice was to record the original deed itself, but in a few cases an enrolment or copy of it, was entered on record, and the original returned to the party, and it was at the option of the party presenting the deed to have it either recorded or enrolled. This registration was effected at the Common Law and Chancery Courts, and the Courts Baron., At these Courts the names of the grantor and grantee were openly published in Court, and the deed ordered to be recorded. As a necessary preliminary to the recording or enrolment of a deed it was requis:te that it should be either acknowledged by a party or attested on oath by a subscribing witness before a Deemster or High-Bailiff, who captioned it accor- [138] dingly. The execution of a deed so captioned and recorded did not require to be proved by witnesses, a certified office copy being, in all the Insular Courts, sufficient evidence (at least prima facie) of its contents and due execution by the party or parties whose execution of it was either attested or acknowledged. [note 2]
Although, as before mentioned, there was no Statute Law before 1847 requiring rcgistration except in the case of mortgages, it was, neverthcless, held by the Courts that as by the custom of the Island all deeds were either recorded or enrolled, the non-registry of a deed might, under certain circumstances, furnish a strong presumption against it, and in fact was held to be such evidence of fraud or negligence that unrecorded deeds, especially voluntary instruments operating in futuro without an immediate transfer of possession were, in many cases, held to be void as against subsequent bona fide purchasers or incumbranccs, or other pcrso:ls who had acquired rights without notice of their existence. In the case of Cannell v. Quark, Lib. Can. 1796, the Court of Chancery held a deed of [139] settlement which had not been attested or recorded to be void as against the dower of a wife who had married the grantor subsequent to its date, the Court expressing in its decree that it should only operate against her as if executed on the date on which it was first made public by attestation before the Deemster, which was subsequent to the marriage. In the case of Kelly v. Kelly the Chancery Court (1863), held a settlement granted prior to the grantor's marriage, but not attested or recorded until afterwards, to be void as against the dower of the grantor's wife, who at the time of her marriage had no notice of its existence. In the recent appeal case of Radc1iffe v. Corlett the Judicial Committee of the Privy Council laid considerable stress on the fact of the non-registry of a Manx Deed of Settlement as affording evidence of intentional concealment. The registration and recording of deeds is now regulated by an Actof Tynwald, passed on the 14th December, 1847, [note 3] and by an amended Act of 31st August, 1848. [note 4] By the former of these Acts a general registry office is created for the whole Island, in which not only deeds but also memorials of wills and judgments affecting real estates are registered, i.e., recorded or enrolled. The clause of the Act of Settlement [note 5] respecting mortgages, before referred to, is repealed, and it is enacted by the Act of 1848 that all deeds or bargains of sale of lands, all conveyances, mortgages, assignments, [140] contracts, alienations of, and all charges and incumbrances on or affecting any lands, tenements and hereditaments (excepting leases at rack rent for terms in possession not exceeding 21 years) which shall not be registered shall be deemed null and void as against subsequent bona fide purchasers or incumbrancers for valuable consideration, whose title or right, charge or incumbrance having first been duly captioned, shall have been duly registered. By the prior Customary Law no deed could be captioned for registration except by a Deemster or High-Bailiff. The 25th clause of this Act of 1847 provides for the attestation of deeds before the Mayor, Provost, or acting magistrate of any corporate town in Great Britain or Ireland, or before the Governor or Lieutenant-Governor of any of Her Majesty's colonies abroad. The writer presumes that it is by an oversight that possessions of the Crown (Jersey for instance) not coming within the description of colonies abroad are not included within this provision. It not being within the object aimed at by these notes to describe minuteiy the whole machinery created by the Act of 1847 for the regulation of the registration of deds and instruments affecting real estate, the writer has referred merely to its leading provisions. Sufficient however, has been said to show the legal reader that the Manx registration law, as embodied in the two Acts, is similar in principle and nearly so in form, to the Registration Acts of Middlesex and York. The leading object of all these Acts is the protection of registered bona fide purchasers and [141] incumbrances for valuable consideration against claims under prior unregistered instruments. [note 6]
One great difference in the mode of registration is that in England a memorial only of the deed is registered, whilst in the Island the original deed itself is delivered into the Registration Office, and there either recorded or enrolled. Since the passing of the Acts referred to, the practice of recording the original has been almost invariably preferred.
In the construction of these Statutes it has been held (Quine v. Quine per Deemster Drinkwater, 2nd February, 1857), that they do not apply to voluntary settlements so as to confer any priority even at law upon such a settlement, although registered previous to one of the same nature, but prior in date granted by the same person, the party claiming priority by registration not being a bona fide purchaser for valuable consideration. The consideration expressed in both deeds, which were granted by the father of the parties, was natural love and affection, and the nominal pecuniary consideration of five shillings. It has also been held by the Court of Chancery (Crennel v. Kewin, and Sankey v. Cosnahan), in accordance with the doctrine laid down in Le Neve. Le Neve and that class of cases, that notice of a prior unregistered deed [142] (in Crennel v. Kewin it was a voluntary settlement), will, in equity, prevent a party claiming under a subsequent instrument, obtaining a preference by reason of priority of registration. In Crennel v. Kewin the prior deed was not only not registered but had been lost or destroyed. The registration of a deed, whether for valuable consideration or voluntary, has always been held in this Island to be equivalent to notice to every person of its existence, and sufficient to preserve the rights granted thereby from any subsequent acts of the grantor in derogation of it except, indeed, in cases in which the deed can be impeached on grounds existing at the time of its execution. For instance, if the deed is void as to prior creditors of the grantor, the claims of not on1y such prior creditors but of all subsequent creditors whose debt may have been incurred even after the registration are admitted against the deed (Corlett v. Radcliffe per Privy Council.) There is no Insular Law or Statute similar in its provisions to 27 Eliz., c. 4, and, consequently, voluntary deeds are not liable to be affected by subsequent sales for value made by the grantor if the purchaser has actual notice of the prior voluntary deed, or if it has been duly registered. Many objections, which, in theory seem well founded, may be, and in England have been, raised against a general registry of title deeds. Experience shows, 1:owever, that in practice most of these objections vanish. The system of registration has now prevailed on the Island for several centuries, and no practical inconvenience [143] has ever resulted from it, although most of the consequences dreaded in England would probably have been felt in a greater degree in this small community.
That the system, peculiar to the Island, of depositing the original deed on the record works well is evidenced from the preference given to that mode of registration not only since the Registration Act of 1847, but always previously. During the long period through which the system has continued not more than deeds [note 7] have been enrolled, and none before 17 , [note 7] all the other deeds registered numbering many thousands, having been recorded. All the inconvenience which might be suggested as likely to arise from the peculiarity referred to are obviated by the practice of holding the office copy of a deed duly attested on oath, or acknowledged and recorded, to be primary evidence of it without further proof in al1 the Insular Courts.
Note 1: The date of the promulgation of the Registration of Deeds Act, 1847. (Revised Statutes, vol. 2, p. 183).
Note 2: Non-captioned Deeds were received at the Rolls Office and marked as deposited for safe custody. For purposes of justice or priority the deposit had the like effct as registration at a Court, but in case it had to be produced in a Court of Justice it had to be proved in like manner as a non-captioned and unregistered deed. A deed of which an enrolment was recorded, had likewise to be so proved. Provision is made in the Registration of Deeds Act, 1868, sec. 8, (Revised Statutes, vol. 3, p, 449), for the registration of non-captioned deeds, like that which existed prior to 1847, whcn the new system of registration was instituted. By the Registration of Deeds Act, 1895, sec. 12, every recorded original deed in whole or in part uncaptioned, and which has been recorded for at least 20 years, shallhave the like effect as a captioned deed, and any recorded enrolment of an original deed which enrolment has been recorded for at least 30 years shall have effect prima facie as the original deeds of which it purports to bc an enrolment.
Note 3: The Registration of Deeds Act, 1847. (Revised Statutes, vol. 2, p. 183)
Note 4: The Registration of Deeds Act, 1848. (Revised Statutes, vol. 2. p. 211)
Note 5: The Act of Settlement, 1704, sec. 5. (Revised Statutes, vol. I, p. 164).
Note 6: Further amendments as to the Registration of Deeds was made by the Trustees Act, 1865, section 7, (Revised Statutes vol. 3, p. 251), the Registration of Deeds Act, 1868, (Revised Statutes, vol. 3, p. 446), the Registration of Deeds Act, 1873, (Revised Statutes, vol. 4, p. 295), the Isle of Man Judicature Act, 1883, section 45, and the Registration of Deeds Amendment Act, 1896.
Note 7: Mr Sherwood, it is presumed, intended to have counted the enrolled Deed, and to have found out the first enrolled Deed, but the task would be a most tedious one, as the enrolments were not all made in books, and some were enrolled at an early period. But there is no doubt that the enrolled form a very small proportion of the registered deeds.