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Preamble.
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WHEREAS by the different and secret ways of transferring, conveying and incumbering Lands, Tenements and Hereditaments, such as are ill-disposed have it in their power to commit frauds, whereby persons who purchase Lands, or lend Monies on Land security, are liable to be injured in their purchases and Mortgages, and to be utterly ruined by prior and secret conveyances and fraudulent incumbrances; for preventing whereof,
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Deeds, Convey-ances and Wills, may be registered.
Adjudged fraudulent and void against subsequent purchaser, unless registered.
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I. Be it enacted by the Governor, Council, and Assembly, That all Deeds and Conveyances which shall hereafter be made and executed, and all Wills and Devises in writing, made or to be made and published, where the Devisor or Testatrix shall hereafter die of or concerning, and whereby any Lands, Tenements or Hereditaments in this Province, may be any way affected in Law or Equity, may be registered at full length in such manner as is herein after directed; and that every such Deed and Conveyance, that shall any time hereafter be made and executed, shall be adjudged fraudulent and void, against any subsequent Purchaser or Mortgagee for valuable consideration, unless such Deed and Conveyances be registered as by this Act is directed, before the registering of the Deeds or Conveyances under which such subsequent Purchaser or Mortgagee shall claim; and that every such Devise by Will shall be adjudged fraudulent and void against any subsequent Purchaser or Mortgagee for valuable consideration, unless such Will be registered at such times and in such manner as is herein after directed.
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Registry Office erected in each County.
Registers to be appointed by the Governor or Commander in Chief.
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II. And for the better settling and establishing a certain method, with proper rules and directions for registering such Deeds, Conveyances and Wills as aforesaid, Be it further enacted, That in each and every County in this Province, there shall be erected and established one Public office for registering such Deeds, Conveyances and Wills, of and concerning any Lands, Tenements, and Hereditaments, that are situate, lying and being within such County and Counties respectively; to be managed and executed by such fit and able person and persons as shall thereto be nominated and appointed by the Governor or the Commander in Chief of this Province.
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III. And be it further enacted, That all and every such Register and Registers, shall before he or they enter upon the execution of the said office, be sworn before two of His Majesty's Justices of the Peace quorum unus, in the County where such Registers are respectively appointed, or before one of His Majesty's Justices of the Supreme Court of Judicature, well, truly and faithfully to execute the same office, which oath such Justices are severally empowered and required to administer.
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Guilty of neglect &c. to pay treble damages, & costs.
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IV. And be it further enacted, That if any such person or persons so appointed Register or Registers as aforesaid, shall be guilty of any neglect, misdemeanor, or fraudulent practice in the execution of the said office and offices respectively, such Register or Registers so guilty as aforesaid, and being lawfully convicted thereof, shall be liable to pay treble damages with full costs of suit, to every person that shall be injured thereby, to be recovered by action of debt, bill, plaint or information, in any of His Majesty's Courts of Record in this Province.
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Deeds, &c. produced to the Register, shall indorse a Certificate,
which shall be allowed as evidence.
Every page of the Register books to be numbered and time of receiving and entering to be mentioned.
Deeds, &c. to be entered in the order of time as received.
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V. And be it further enacted, That every such Deed, Conveyance and Will, or Probate of the same, which is so to be registered as aforesaid, shall be produced to the said Register and Registers at the time of entering and registering the same, who shall indorse a Certificate on every such Deed, Conveyance and Will or Probate thereof, and therein mention the certain day on which such Deed, Conveyance or Will is so entered or registered, expressing also, in what book, page and number, the same is entered and registered, and shall sign the said Certificate when so indorsed; which Certificate shall be taken and allowed as evidence of such respective Registers in all Courts of Record whatsoever; and every page of such Register books, and every Deed, Conveyance and Will, which shall be entered and transcribed therein, shall be numbered, and the year and day of the month when every such Deed, Conveyance and Will are received, entered and registered, shall be entered in the said Register books; and every Register shall duly enter and register all Deeds, Conveyances and Wills, or Probates of the same, in the same order that they shall respectively come to his hands.
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The execution of Deeds to be proved by oath of one or more of the subscribing witnesses,
of by the acknowledgment of Grantor, &c.
Wills to be proved by one or more subscribing witness or by the Probate thereof.
Registers, Courts and Justices, to administer oaths, take acknowledgments & enter the same on the Deeds, &c.
No Deeds, &c. to be entered or registered before proved or acknowledged.
Copies of entries and enrollments where the originals are destroyed to be allowed good and sufficient evidence.
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VI. And be it further enacted, That the due execution of all such Deeds and Conveyances so to be entered and registered, shall be made evident by the attestation of one or more of the subscribing witnesses thereto, who shall upon oath, or being a Quaker, on solemn affirmation, before the Register or before the Supreme Court of Judicature, or before any one of the Justices of the same Court, or before some of the Inferior Courts of Common Pleas in this Province, prove the signing, sealing and delivery of such Deeds and Conveyances; or else the Grantor and Grantors, and persons so signing, sealing, and delivering such Deeds and Conveyances, shall before the said Register or before one of his Majesty's Justices of the Courts aforesaid, or before one of his Majesty's Justices of the Peace, acknowledge his or their signing, sealing and delivering such Deeds and Conveyances; and in case of Wills the same shall be proved by the attestation of one or more of the subscribing witnesses, upon oath, or being a Quaker, upon solemn affirmation, in manner aforesaid, or by due and legal probate of the same: and the said Registers respectively, and the several Courts and Justices aforesaid, are hereby empowered to administer such oaths and affirmations aforesaid, and to take the acknowledgments as aforesaid, and shall enter a memorandum of the administering and taking the same oaths, affirmations, and acknowledgments respectively, signed with their hands respectively, upon the said Deeds, Conveyances and Wills, with the time when the same was so taken or administered. And no Deed or Conveyance, or Will, shall be entered or registered, or Certificate thereof made as aforesaid, by any Register, before such oath, affirmation or acknowledgment, or probate as aforesaid, thereof duly administered and taken as aforesaid, and a memorandum thereof so entered on the same respectively as aforesaid. And all copies of such entries and enrollments of such Deeds, Conveyances and Wills, so registered at full length, and which copies shall be signed by such Register or Registers respectively, shall be allowed in all Courts of Record to be good and sufficient evidence of such Deeds, Conveyances and Wills so registered, in case the same shall be destroyed by fire or other accident.
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Wills registered within the times limited as in this section, valid against subsequent purchasers.
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VII. And be it further enacted, That all Wills that shall be registered in manner as aforesaid, within the space of six months after the death of every respective Devisor or Testatrix, dying within this Province, or within the space of three years after the death of every respective Devisor or Testatrix, dying upon or in parts beyond the Seas, or within the space of one year after the death of every respective Devisor or Testatrix in any other parts out of the limits of this Province, shall be as valid and effectual against subsequent purchasers, as if the same had been registered immediately after the death of such respective Devisor or Testatrix; any thing herein contained to the contrary notwithstanding.
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Proviso where Wills being contested or by other inevitable difficulty not registered within the limited times.
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VIII. Provided always, That in case the Devisee, or person or persons interested in the Lands, Tenements or Hereditaments, devised by any such Will as aforesaid, by reason of the contesting of such Will or other inevitable difficulty, without his, her, or their wilful neglect or default, shall be disabled to exhibit the same, or a Probate thereof, for Registry, within the respective times herein before limited, and that a Memorial shall be entered in the said Register office or offices, of such contest or impediment, within the space of six months after the decease of such Devisor or Testatrix, who shall die within this Province, or within the space of three years next after the decease of such person who shall die upon or beyond the seas, or within the space of one year after the death of every respective Devisor or Testatrix, in any other parts out of the limits of this Province; then and in such case the Registry of such Will within the space of six months next after his, her, or their attainment of such Will, or a Probate thereof, or removal of the impediment, whereby he, she or they were so disabled or hindred as aforesaid, shall be a sufficient Registry, within the meaning of this Act; any thing herein contained to the contrary thereof in anywise notwithstanding.
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Wills concealed or suppressed, not good against subsequent purchasers, unless registered within three years.
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IX. Provided nevertheless, That in case of any concealment or suppression of any Will or Devise, no purchaser or purchasers, for valuable consideration, shall be defeated or disturbed in his or their purchase, by any title made or devised by any such Will, unless the Will be actually registered within three years after the death of the Devisor or Testatrix.
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Bargains & Sale of Lands, &c. acknowledged & registered as by this Act is provided, shall be good and sufficient to pass the Estate without livery of seisin.
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X. And be it further enacted, That all bargains and sales of any Lands, Tenements, and Hereditaments, by Deed indented, or Deed poll, and all Grants and Conveyances whatsoever, made by writing and duly signed, sealed and delivered, and acknowledged by the Grantor or Grantors, Bargainor or Bargainors, in such Grants, Sales and Conveyances, before one or more Justice or Justices of the Peace, (who are hereby empowered to take and enter on such Deeds, Bargains and Sales, and Conveyances, all such acknowledgments according to the intent of this Act) which shall be entered and registered at full length, by the said Register or Registers, in the Public office in and by this Act erected in the County and Counties where such Lands, Tenements, and Hereditaments are situate, lying and being, shall be good, effectual, and available, to all intents and purposes whatsoever, for the passing and transferring such Lands, Tenements, and Hereditaments, and the Estate and possession thereof, to the Bargainee and Bargainees, Grantee and Grantees therein named, according to the intents and uses, and purposes in such Deeds and Conveyances expressed without livery of seisin, or any other Act, or Deed, or form, or ceremony whatever.
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Deeds so registered, and copies thereof, good and sufficient.
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XI. And be it further enacted, That all Deeds of bargain and sale, and all other Grants and Conveyances whatsoever, so executed, acknowledged, and registered in the said public or Register office and offices as aforesaid, which shall appear to be so acknowledged and registered by Indorsement or Certificate thereon, in form aforesaid, and all copies of the Registries thereof, remaining in the said Register's office or offices, duly attested and certified by the several Registers, shall be allowed in all Courts where such Deeds and Conveyances, or copies, shall be produced, to be as good and sufficient evidence as any bargains and sales inrolled in any of the Courts of Westminster, and the copies of the inrollments thereof are, in any Court of Great-Britain.
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Mode of proof and how registered where the Grantor lives out of the Province or dies before acknowledgment.
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XII. And be it further enacted, That if the Grantor or Grantors, Bargainor or Bargainors, in any Deed or Deeds, and Conveyance of Lands hereafter executed, shall live in parts beyond the Sea, or out of the limits of this Province, or shall happen to die before acknowledgment of such Deed or Deeds in the manner aforesaid, acknowledgment, certificate and proof of the execution thereof may be made as follows, that is to say, if such Grantor or Bargainor live within the Kingdoms of Great-Britain or Ireland, the acknowledgment of such Deed may be had and taken by and before any Judge of any of the Courts of King's Bench, or Common Pleas, or Baron of the Exchequer, or any Master in Chancery, or any Judge or Lord of the Session in Scotland; and if any other part of the British dominions, by and before any Judge of the Supreme or Superior Court of Judicature, in such Colony or part of said dominions wherein such Grantor or Bargainor shall reside, and certified on the said Deed or Conveyance by and under the hand of such Judge or other person so taking the acknowledgment thereof as aforesaid, such Certificate being also authenticated, if in the British Plantations, under the hand and seal of the Governor, Lieutenant Governor or Commander in Chief of the Province where the same shall be made, and if in Great-Britain or Ireland, the Public Seal of some Corporation, there certifying that all faith and credit ought to be given to the attestation of the person so taking the acknowledgment thereof as aforesaid; and if the Grantor or Bargainor shall die before the acknowledgment of such Deed as aforesaid, proof of the execution thereof may be made by the oath of one or more of the subscribing witnesses thereto, before his Majesty's Supreme Court of Judicature, or any inferior Court of Common Pleas in this Province, or before any of the Courts of King's Bench, or Common Pleas, or Exchequer, in England or Ireland, or the Court of Session in Scotland, or before the Supreme or Superior Court of Judicature, in such other British Colony as aforesaid. And all such Deeds and Conveyances, so acknowledged or proved, may be registered, as by this Act is provided, and shall have all the force and effect to pass the Lands and Estate, and possession therein granted or intended to be granted, of Deeds and Conveyances executed and acknowledged according to the provisions of any other and former clauses and parts of this Act, and all such Deeds and Conveyances, and the Registries and copies thereof, certified as in this clause is provided, shall be received to be as good and sufficient evidence as any other Deeds, Conveyances, Registries, or copies in this Act mentioned.
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XIII. And be it further enacted, That every such Register shall be allowed, for the entering and registering of all Deeds, Conveyances, Wills, and Writings as aforesaid, the sum of two shillings and no more, in case the same do not exceed two hundred words, but if such writing shall exceed two hundred words, then after the rate and proportion of six-pence an hundred for all the words contained therein, over and above the first two hundred words: And the same fees of six-pence for every hundred words, in all Certificates, and in all copies given out of the said offices, and no more; and for every search in the said offices one shilling and no more.
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Registers to give due attendance — search for Deeds, &c. — give copies, &c.
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XIV. And be it further enacted, That every such Register shall give due attendance at his office daily, excepting Sundays, and holidays, for the dispatch of all business belonging to his office aforesaid, and shall as often as required, make searches concerning all Deeds, Conveyances, Wills and Writings, so entered and registered as aforesaid, and give copies and Certificates concerning the same under his hand.
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To give security in £300.
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XV. And be it further enacted, That every Register at the time of his being sworn into the said office, shall enter into a recognizance, with two or more sufficient sureties, to be taken and approved of by the Justice or Justices by whom the said oath shall be administered, in the penaly of three hundred pounds to his Majesty, his heirs and successors, conditioned for his true and faithful performance of his duty in the execution of his said office, in all things directed and required by this Act; the same to be transmitted within three months after the date hereof, by the same Court or Justices or Justice, into the office of the Clerk of his Majesty's Supreme Court of Judicature, there to remain amongst the Records of the said Court.
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Penalty for forging entries of acknowledgments, &c. and for the forswearing of witnesses to Deeds, &c.
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XVI. And be it further enacted, That if any person or persons shall at any time forge or counterfeit any entry of the acknowledgment of any Grantor or Bargainor in such Deed, Bargain and Sale, or Conveyance as aforesaid, or any such Memorandum, Certificate or Indorsement, as is herein mentioned or directed, and be thereof lawfully convicted, such person or persons shall incur and be liable to such pains and penalties as in and by an Act made in the fifth year of Queen Elizabeth, intitled, an Act against forgery of false Deeds and Writings, are imposed upon persons for forging and publishing false Deeds, Charter, or Writings sealed, Court rolls or Wills, whereby the Freehold or Inheritance of any person or persons, of, in, or to any Lands, Tenements or Hereditaments, shall or may be molested or charged; and if any person or persons shall at any time forswear himself, or being a Quaker, shall falsely, maliciously and corruptly affirm before any Register to be appointed in manner herein after mentrioned, or before any Court, or Judge, or Justice, in any of the cases herein mentioned, and be thereof lawfully convicted, such person or persons shall incur and be liable to all the pains and penalties of persons committing, and convicted of wilful and corrupt Perjury in any Court of Record.
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Upon Certificate and proof that Money due on Mortgage is paid Register shall make an entry thereof in the margin.
Mortgagee may discharge the Mortgage by entering an acknowledgment of payment and satisfaction in the margin.
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XVII. And be it further enacted, That in case of Mortgages, where any Mortgage Deed shall be registered, pursuant to this Act, if at any time afterwards a Certificate shall be brought to the said Register signed by the Mortgagee, in such Mortgage, his Executors, Administrators or Assigns, and attested by two witnesses, whereby it shall appear that all Monies due upon such Mortgage, have been paid or satisfied in discharge thereof (which witnesses shall upon their oath, before one of the Judges of his Majesty's Supreme Court of Judicature, or before the said Register, who are hereby respectively impowered to administer such oath, prove such Monies to be satisfied and paid accordingly, and that they saw such Certificate signed by the said Mortgagee, his Executors, Administrators or Assigns) that then and in every such case, the said Register shall make an entry in the margin of the said registry book, against the registry of the said Mortgage Deed, that the same was satisfied and discharged, according to such Certificate, to which the same entry shall refer, and also to a registry and transcript at full length of the said Certificate, which shall be made in the registry books, and he shall also file such Certificate, to remain in the said Register's office. Or any such Mortgagee, his Executors, Administrators, or Assigns, having received full payment and satisfaction for all Monies due by virtue of such Mortgage, may acknowledge and cause such payment and satisfaction thereof to be entered in the margin of the siad registry book, agsinst the registry of the said Mortgage Deed, and subscribe his proper hand and name thereto, in the presence of the said Register, who shall slso sign his name a witness thereto, which shall for ever after be a full discharge and release of such Mortgage.
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This Act not to extend to Leases not exceeding 3 years, &c.
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XVIII. Provided always, and be it further enacted, That this Act shall not extend to any Lease, not exceeding three years, where the actual possession and occupation goeth along with the Lease.
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Register offices to be erected in Towns appointed by the Governor.
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XIX. And be it further enacted, That the several Register's offices in the several Counties of this Province which by this Act are or hereafter shall be erected and established, shall be held and kept in such convenient Towns and places, in such Counties respectively, as shall be appointed and ordained for that purpose by the Governor.
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In Deeds, &c. duly registered, the words grant, bargain and sell, shall be adjudged tantamount to certain express Covenants.
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XX. And be it further enacted, That in all Deeds of Bargain and Sale, and all other Grants and Conveyances, hereafter registered in pursuance of this Act, whereby an Estate of inheritance in fee simple is limited to the Grantee or Bargainee, and his Heirs, the words grant, bargain and sell, shall amount to, and be construed and adjudged in all Courts of Judicature to be, express Covenants to the Bargainee or Grantee, their Heirs and Assigns respectively, from the Bargainor and Grantor, for him and themselves respectively, their several and respective Heirs, Executors and Administrators, that the Bargainor and Grantor respectively, notwithstanding any act done by him or them, was and respectively were, a the time of the execution of such Deed and Deeds, seized of the Hereditaments and Premises thereby granted, bargained and sold, of an indefeasible Estate of inheritance, in fee simple, free from all incumbrances (rents,duties, conditions, and services due and reserved to the King only excepted) and for quiet enjoyment thereof against the Grantor and Bargainor, his and their Heirs and Assigns respectively, and all claiming under him or them, and also for futher assurance thereof to be made by the Grantor and Bargainor, his and their Heirs and Assigns, and all claiming under him or them unless the same shall be restrained and limited by express particular words contained in such Deed or Deeds; and that the Bargainee and Grantee, their and each of their Heirs, Executors, Administrators and Assigns, respectively, shall and may, in any action or actions to be brought, assign a breach or breaches thereupon, as they might do in case such Covenants were expressly inserted in such bargain and sale, Deed and Conveyance aforesaid.
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26 Geo. III. C. 3.