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o cognizance to Turner, whose executris brought a feire
And non refert when the deed « indented is acknowledged, so it be enrolled within the « six months. And all this was afterwards affirmed for “good law by the court of common pleas, Trin. 3. Iac. “ upon a special verdict given in an Ejectione firme be« tween Lellingham and Alfop; and further it was there “ resolved, that if the bargainee of land, after the bar“ gain and sale, and before the enrollment, doth bargain “ and sell the same, by deed indented and enrolled, to 6 another; and after the first deed is enrolled, within " the six months, the bargain and sale, by the bargainée,
« is good.”
In 18 Viner 289 Tit. Relation, it is said, “ When two * times, or twa acts are requisite to the perfection of an
« act it shall be said, upon their consummation, to receive “ its perfection from the first.”
If A. makes a deed to B. on the 30th of May; and another for the same land to C. on the ist June, and acknowledges it the same day; afterwards, on the 14th of June, he acknowledges the deed to B. this over-reaches the deed to C. and the acknowledgment of the deed to B. is not a fraudulent act.
Suppose A. makes a bona fide deed to B. for valuable confideration, on the 30th of May. On the first of June A. commits an act of treason. On the 14th of June he acknowledges the deed to B. The land is not forfeited by the treason of A.
If an indictment had been found for forging this deed, and to support the indictment, evidence had been given of the forgery of the acknowledgment only, would that have supported the indictment ?
If a declaration upon this deed, ftating it to have been made on the 14th of June, had been drawn, would it have been supported by producing in evidence, this deed figned, fealed and delivered on the 30th of May ?
This deed intends to convey chofes in action, and perfonal effects, as well as lands. As to the former the deed is goud without acknowledgment; for as to the choses in action, the deed without acknowledgment is an equitable assignment, and if acknowledged it would have amounted to nothing more.
But if the assignees are entitled, they must take the bankrupt's estate, subject to all the equity of others. 2 Veazy, senr. 585, 633. Cooke's bankrupt law, 203. Tayler v. Wheeler, 2 Vern. 564.
Courts of law will protect equitable rights; as in the cafe of Winch and Keeley, 1 Term rep. 619, where the plaintiff having assigned his right of action to Searle, and having become bankrupt, was still held able to fupport the action for the benefit of Searle, notwithstanding the aflignment of his effects under the bankrupt laws.
WOOD And by the authority of ex parte Byas, i Atk. 124, if
the assignees had received the money due to Robb, the Owings. bankrupt, they would have been obliged to pay it over to
Wood, the plaintiff in error, instead of receiving it from him.
The deed is not fraudulent in se; and would not now be questioned if the bankrupt law had not been passed. Although it is a deed of all his effects, yet it is not an absolute deed, nor was it made on any secret trust, or for his own benefit. The only thing which can be alleged against it is, that it gives a priority to some of his creditors, and this he had a clear right to do, both in law and equity. It was not made in secret; it holds up no false colours, it enables him to receive no false credit. He might have fold the property for ready money, and paid any one of his creditors in full. But making a deed of trust, he has prevented a sacrifice of his property, whereby it is.competent to satisfy a greater number of his creditors, and he is himself rendered more able to pay the residue of his debts by his future industry.
The committing an act of bankruptcy is, in law, considered as criminal. The bankrupt law is, therefore, in this respect, to be construed strictly. It ought not to be extended beyond the letter of the law. Cooke B. L. 67. Cowp. 409, 427, 428. 5 Term rep. 575. 7 Term rep. 509. Fowler v. Padget.
But however fraudulent the deed might have been, yet it was no act of bankruptcy, under the act of congress; because not executed after the ist of June; unless the acknowledgment can be considered as the making of the deed. And if it was not an act of bankruptcy, the title of the defendants in error fails.
The act of bankruptcy charged, is the making a fraudulent deed after the ist June, 1800. The counsel for the plaintiff in error having abandoned the second point which was made, and strongly contended for, in the court below, the only qu. stion now to be considered is, whether the deed was made before or after the it of June.
A deed, at common law, is an instrument in writing Wood figned, fealed and delivered. If it be signed and sealed, but not delivered, it is no deed; and the reason is, that Owings. until the last act of volition is performed, there is still a power of recalling it.
The cases from the English books respecting the statute of enrollments, are not applicable to the law of Maryland respecting acknowledgment. The English laws only protect creditors and purchasers without notice. But the law of Maryland is intended to protect the maker of the deed himself, to prevent forgeries and fraud, and to give a further solemnity, that the grantor may have more time to reflect, and to secure himself from being suddenly entrapped. The law therefore fuperadds to ligning, sealing and delivery, a further act of volition.
It is said that a court of equity will set up such a deed; true, it would, in certain cases; but not because it is a paper signed and sealed; but because it is a contract for a valuable consideration. But this deed would never have been supported in a court of equity, if it had not been completely valid at law. Suppose Robb had refused to acknowledge it; and application had been made to chancery to carry the deed into effect; it would have been refused.
Can a deed be said to be made when it is not complete? It was not complete on the 30th of May; something was still to be done, of which it would have been neceffary to apply to a court of chancery to compel the performance.
If acknowledgment is necessary by statute law, it is the fame as if necessary by common law. The one is as binding as the other. They are both derived from the fame source, but evidenced in different modes. Signing, sealing and delivery only are necessary by the common law, but acknowledgment also is necessary by the statute.
The deed of land was an act of bankruptcy, and prevented the operation of the deed as a deed of personal estate. The deed for the land and for the shattels was oxecuted eodem inftanti.
Chase, Juftice. The effect of an acknowledgment is to prevent the grantor from pleading
from pleading non eft factum. Harper. By the law of England acknowledgment is not necessary. But by the law of Maryland it is a necessary part of the conveyance, and can no more be dispensed with, than the signing, fealing and delivery. Having figned and sealed, the grantor may refuse to deliver ; so, having ligned, sealed and delivered, he may refuse to acknowledge, and in either case it is no deed. The deed, therefore, was not made till the 14th of June.
Martin, in reply.
Acknowledgment is absolutely necessary in England, before enrollinent. Viner, Tit. Enrollment, p. 443"no “ deed, &c. can be enrolled, unless duly and lawfully “ acknowledged, cites Co. Lit. 225 (6.)” The acknowledgment is the warrant for the enrollment. An acknowledgment in Maryland has no greater effect than in England.
There was an enrollment at common law, for safe custody, it makes an estoppel, and the party cannot plead non eft factum. Per Holt ch. j. Comb. 248, Smart v. Williams, cited in Viner, tit. enrollment, p. 444. And in p. 445, it is said, “ Enrollment of a deed is to no other purpose
, « but that the party shall not deny it afterwards,” and cites Br. Faits enrol. pl. 4. And in Sav.
Holland v. Downes cited in Viner tit. enrollment p. 446, 447, it is said “ the sealing and delivery is the force of such deeds, « as deeds of bargain and sale, &c. and not the enroll“ ment.” And again, in the same case, “ Bonds, indentures 6 and deeds take their force by the delivery; so there is a “ perfect act before the conusance is taken, and before “ any enrollment.” The enrollment could not be made upon proof by witnesses. The acknowledgment was the only authority.
The enrollment is the act of the grantee. The acknowledgment is the last act of volition of the grantor. It is wholly voluntary; he may refuse ; and if he does, the deed has no effect. In England, the acknowledgment is