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v.

OWINGS.

"cognizance to Turner, whofe executrix brought a feire "facias, upon the recognizance, bearing date the 9th. "November, 41. Eliz. against Sewfter, and alleged him "to be feized of those lands in dominico fuo ut de feodo, the "day of the feire facias brought; and the truth of the "cafe being disclosed by long pleading, was this; Sewfter, "7th November, before the recognizance acknowledged, "by deed indented, for money, had bargained and fold "the faid land to another, and the deed was enrolled the 20th November following. The queftion was, "whether Sewster was, upon the whole matter, feized in "fee the 9th of November, the deed being not enrolled "until the 20th of the fame November. And it was "adjudged, una voce, that Sewster was not seized in fee "of the land on the 9th day of November. For that "when the deed was enrolled, the bargainee was, in "judgment of law, feized of that land, from the delivery "of the deed. And it was refolved, that neither the "death of the bargainor, nor of the bargainee, before "enrollment, fhall hinder the paffing of the eftate. And "that a release of a stranger to the bargainee, before en"rollment, is good. So that it holds not by relation, be"tween the parties, by fiction of law; but in point of "eftate, as well to them, as to ftrangers also. And that "a recovery fuffered against the bargainee, before enroll"ment, (the deed indented being, afterwards, within the "fix months, enrolled) is good, for that the bargainee was "tenant of the freehold, in judgment of law, at the "time of the recovery. And non refert when the deed "indented is acknowledged, fo it be enrolled within the "fix months. And all this was afterwards affirmed for " good law by the court of common pleas, Trin. 3. Iac. "upon a fpecial verdict given in an Ejectione firma be"tween Lellingham and Alfop; and further it was there "refolved, that if the bargainee of land, after the bar

gain and fale, and before the enrollment, doth bargain "and fell the fame, by deed indented and enrolled, to "another; and after the firft deed is enrolled, within the fix months, the bargain and fale, by the bargainée, " is good."

In 18 Viner 289 Tit. Relation, it is faid, "When two times, or two acts are requifite to the perfection of an

"act it shall be said, upon their confummation, to receive "its perfection from the firft."

If A. makes a deed to B. on the 30th of May; and another for the fame land to C. on the 1ft June, and acknowledges it the fame 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.

Suppofe 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 treafon. On the 14th of June he acknowledges the deed to B. The land is not forfeited by the treafon of A.

If an indictment had been found for forging this deed, and to fupport the indictment, evidence had been given of the forgery of the acknowledgment only, would that have fupported 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 fupported by producing in evidence, this deed figned, fealed and delivered on the 30th of May?

This deed intends to convey choses in action, and perfonal effects, as well as lands. As to the former the deed is good without acknowledgment; for as to the chofes in action, the deed without acknowledgment is an equitable affignment, and if acknowledged it would have amounted to nothing more

But if the affignees are entitled, they must take the bankrupt's eftate, fubject to all the equity of others. 2 Veazy, fenr. 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 affigned his right of action to Searle, and having become bankrupt, was ftill held able to fupport the action for the benefit of Searle, notwithstanding the affignment of his effects under the bankrupt laws.

WOOD

v.

OWINGS.

WOOD

V.

OWINGS.

And by the authority of ex parte Byas, 1 Atk. 124, if the affignees had received the money due to Robb, the 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 fe; and would not now be queftioned if the bankrupt law had not been passed. Although it is a deed of all his effects, yet it is not an abfolute deed, nor was it made on any secret truft, or for his own benefit. The only thing which can be alleged againft it is, that it gives a priority to fome of his creditors, and this he had a clear right to do, both in law and equity. It was not made in fecret; it holds up no false colours, it enables him to receive no falfe credit. He might have fold the property for ready money, and paid any one of his creditors in full. But making a deed of truft, he has prevented a facrifice of his property, whereby it is competent to fatisfy a greater number of his credi tors, and he is himself rendered more able to pay the refidue of his debts by his future industry.

The committing an act of bankruptcy is, in law, confidered as criminal. The bankrupt law is, therefore, in this refpect, to be construed ftrictly. It ought not to be extended beyond the letter of the law. Cooke B. L. 67. Corp. 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 congrefs; because not executed after the ift of June; unless the acknowledgment can be confidered as the making of the deed. And if it was not an act of bankruptcy, the title of the defendants in error fails.

Harper, contra.

The act of bankruptcy charged, is the making a fraudulent deed after the 1ft June, 1800. The counfel for the plaintiff in error having abandoned the fecond point which was made, and ftrongly contended for, in the court below, the only qu.ftion now to be confidered is, whether the deed was made before or after the 1st of June.

A deed, at common law, is an inftrument in writing figned, fealed and delivered. If it be figned and fealed, but not delivered, it is no deed; and the reafon is, that until the last act of volition is performed, there is still a power of recalling it.

The cafes 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 folemnity, that the grantor may have more time to reflect, and to fecure himself from being fuddenly entrapped. The law therefore fuperadds to figning, fealing and delivery, a further act of volition.

It is faid that a court of equity will fet up fuch a deed; true, it would, in certain cafes; but not because it is a paper figned and fealed; but because it is a contract for a valuable confideration. But this deed would never have been supported in a court of equity, if it had not been completely valid at law. Suppofe Robb had refused to acknowledge it; and application had been made to chancery to carry the deed into effect; it would have been re

fufed.

Can a deed be faid to be made when it is not complete? It was not complete on the 30th of May; fomething was ftill to be done, of which it would have been neceffary to apply to a court of chancery to compel the performance.

If acknowledgment is neceffary by ftatute law, it is the fame as if neceffary by common law. The one is as binding as the other. They are both derived from the fame fource, but evidenced in different modes. Signing, fealing and delivery only are neceffary by the common law, but acknowledgment alfo is neceffary by the ftatute.

The deed of land was an act of bankruptcy, and prevented the operation of the deed as a deed of perfonal eftate. The deed for the land and for the chattels was executed eodem inftanti.

WOOD

v.

WOOD

V.

OWINGS

Chafe, Justice. The effect of an acknowledgment is to prevent the grantor from pleading non eft factum.

Harper. By the law of England acknowledgment is not neceffary. But by the law of Maryland it is a neceffary part of the conveyance, and can no more be difpenfed with, than the signing, fealing and delivery. Having figned and fealed, the grantor may refufe to deliver; so, having figned, fealed and delivered, he may refufe 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 abfolutely neceffary in England, before enrollment. Viner, Tit. Enrollment, p. 443 "no "deed, &c. can be enrolled, unlefs duly and lawfully " acknowledged, cites Co. Lit. 225 (b.)" The acknowledgment is the warrant for the enrollment. An acknowledg ment in Maryland has no greater effect than in England.

There was an enrollment at common law, for safe cuftody, it makes an estoppel, and the party cannot plead non eft factum. Per Holt ch. j. Comb. 248, Smart v. Wil liams, cited in Viner, tit. enrollment, p. 444. And in p. 445, it is faid, "Enrollment of a deed is to no other purpose, "but that the party fhall not deny it afterwards," and cites Br. Faits enrol. pl. 4. And in Sav. 91. Holland v. Downes cited in Viner tit. enrollment p. 446, 447, it is faid "the fealing and delivery is the force of fuch deeds, " as deeds of bargain and fale, &c. and not the enroll "ment." And again, in the fame case, " Bonds, indentures "and deeds take their force by the delivery; fo there is a "perfect act before the conufance is taken, and before "any enrollment." The enrollment could not be made upon proof by witneffes. The acknowledgment was the only authority.

Harper.

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 refufe; and if he does, the deed has no effect. In England, the acknowledgment is

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