by admitting such a discretion, the whole policy of the law is defeated: on the other hand, if it is unreasonable and unjust, that the intent should be overruled and defeated by the application of technical rules, why should not a court of law, as well as of equity, dispense with their observance? Is their observance in such a case, less unreasonable and unjust in the one court, than in the other? Or is it that relief is to be denied in the one, merely that the party, at great expense, may be compelled to seek it in the other? For, in many cases, this is the necessary result of the present system.

"That this discrepancy in the rules of interpretation is a serious defect in our jurisprudence, has been admitted by many eminent writers, and there are obviously only two modes by which it can be remedied. We must either extend to every instrument concerning the title to lands, the same strict rules of construction, that now obtain in regard to conveyances, and enforce their observance in every court; or we must declare that in conveyances also, the construction shall follow the intent. By adopting the first mode, we shall undoubtedly prevent some litigation, and attain a greater certainty in the construction of written instruments; but to attain that certainty, we shall sacrifice the intention of parties, check alienation, defeat estates, favor injustice, and give impunity to fraud.

“CHAPTER II.”

"OF TITLE TO REAL PROPERTY BY DESCENT."

IS 1. Same as enacted, except that sub. 3 was inserted by the legislature.]

Original note. "The term 'real estate,' is defined in the 21st section of this Chapter; and the above section, as thus interpreted, effects an important, and, it is believed, salutary change in the present law. Descents, under the present statute, are confined to cases where the ancestor died seised of the estate: so that where there is an adverse possession at the time of his death, or where the right of the ancestor is contingent or executory, the inheritance, instead of descending, according to the principles of the statute, to all the heirs equally, would pass, by the rules of the common law, to the eldest male heir. Thus, if the ancestor, although his title was certain, had lost the possession by force or fraud, or was entitled to the fee under a contingent remainder or executory devise, and died before the determination of the preceding estate, his whole property might pass to his eldest son, or the eldest male descendant of such son, in exclusion of all his other children. It is difficult to believe that such was the intent of the legislature by whom the statute was originally passed; but such is the construction which the courts are compelled to adopt, in consequence of the use of the technical term, seised.' The object of the Revisers, is to substitute, throughout, the principles of the statute, for the rules of the common law; so that wherever, at common law, the eldest descendant or brother would take, all the children or brothers, &c. shall take, under the provisions of this chapter: and they are satisfied, that by making this alteration, the law will be conformed to the general sense of the community. The Revisers feel it their duty

to state, that the change now proposed, (as well as some other valuable improvements,) was suggested to them by the late Mr. Emmet, in a written communication to the Revisers."

[S 2, 3, 4. Same as enacted.] Original note to § 4. "Residue of the 2d rule of the existing statute. It seems unnecessary to provide specially for the case of a descent to grand children and children of grand children, in unequal degrees, as is done in the existing statute. The general terms here adopted, are sufficient to reach all the cases that can occur, and to the remotest degree."

[S 5. Same as enacted, and published in the first edition, except that in addition to the words in the statute, the following words were also contained in the reported §, "in which case it shall descend as if such intestate had survived his father." But by amendatory act of 1830, chap. 320, § 13, a new section was substituted on recommendation of Revisers.] Original note to § as first proposed. "If in addition to those incorporated in the text, any further alteration in the law of descents be admissible, it would seem that none could be more just than to allow the mother of the intestate to take the estate for her life, where there is no father. Under the present statute there is no case in which the mother would be entitled to take, an omission which is supplied in the statutes of most of the other states in the union. Should the suggestion of this note be approved, the following words may be added to the above section: If the intestate leave no father, the inheritance shall descend to his mother during her life, and after her death, to the persons who would have been entitled as heirs, at the time of the death of the intestate, had there been no mother.' If this clause should be adopted, some modification of the other sections will be necessary." Original note to new section proposed in 1830. "Under the sixth section of this chapter, which was introduced during its passage through the legislature, an inheritance on the part of the father may descend to the mother in fee, in exclusion of the collateral relatives of the father, and under the twelfth section, an inheritance on the part of the mother in default of collateral relatives on her side, would go to the collateral relatives of the father, although he himself might then be living. It seems unreasonable that the mother should possess greater privileges than the father, and still more so, that a brother or sister of the father, should be entitled to take in preference to him. The amendment proposed, removes these incongruities, and renders the provisions of the statute reasonable and consistent."

[S 7, 8. Same as enacted § 8, 9 R. S.] Original note. "It has been decided by the supreme court, (6 Johns. Rep. 322,) and the words of the statute seem plainly to demand that construction, that nephews or nieces, where there are no brothers or sisters, do not take equally, but only the shares of their respective parents, thus changing the rule that obtains as to lineal descendants who, when of the same degree of consanguinity, always take in their own right in equal portions, and not by representation. It seems desirable that the statute should be rendered uniform in its provisions, and no reason is perceived why the rule applicable to lineal descendants, should not be extended to

collaterals. This is one of the alterations effected by the three last sections; another is, that they extend the right to take by descent, to the issue of nephews and nieces. As the law now is, a grand nephew could not take at all under the statute."

[S 10. Same as enacted § 11 R. S. except that after the word "descend" the words "to the mother in fee, if there be no mother then," were stricken out by the legislature, they having, by § 6, R. S. made provision for the mother.] Original note. "The present statute does not regulate descents beyond the children of brothers and sisters, and leaves the common law to govern in all other cases, so that the eldest uncle and his issue take in preference to all others of equal degree. The two last sections are proposed to carry into effect the great principles of the statute throughout the nearest collateral branches, and to secure an equal distribution of the property to kindred of the same degree, and to them and their issue when of unequal degrees. The Revisers, however, doubt the expediency of carrying the rule of equal partibility beyond the limits now proposed, as the division of an estate amongst more remote relatives, on account of the multitude of shares, would render each portion so small that it would cease to be an object of any consideration. Those interested would have no adequate motive to assert their rights, and the whole estate would probably be intercepted by fraud from the heirs of the intestate. If the suggestion before made as to the mother, should be adopted, it would seem to be still more proper to provide for her, where there are no relatives of the father. In this case, therefore, the Revisers propose, by the words in italics, to give her the whole estate."

[S 12, 13. Same as § 15, 16 R. S.] Original note to § 12. "This section adopts the principle of the present law in reference to the kindred of the half blood, and extends that principle to the new cases introduced.

[S 15. Same as § 18 R. S.] Original note. "§ 5 of the present act would seem to be confined to children of the intestate; but it was taken from the English act, 10 & 11 Will. III, ch. 16, which declared the right of posthumous children under a marriage settlement, and ought to receive a construction equally liberal. The terms of this section are conformable to a suggestion made by the Revisers in Chapter VI, of the second part, in regard to the distribution of the estates of intestates, which has been adopted by the legislature."

[S 16. Same as § 28 R. S. as first enacted; but by sub. 25 of § 15 of the act of the 10th Dec. 1828,." Concerning the Revised Statutes," reported by the Revisers, the words, "in the life time of," originally reported and enacted, were directed to be omitted, and the word "before" substituted, and the was so published.] Original note. "To prevent doubt and avoid repetition." [S 17. Same as § 19 R. S.] of the term lawful.”

Original note. "To avoid the repetition

$ 18 same as § 20 R. S. "§ 18. The estate of a husband as tenant by the curtesy, or of a widow as tenant in dower, shall not be affected by any of the provisions of this chapter; nor shall the same affect any limitation of any estate by deed or will." Original note. “4th section of present act. The saving clause in italics is new, but seems proper to

be added. The general terms of the present law direct, that on the failure of descendants, the inheritance shall go to the collateral relatives; but it frequently happens, that where there are no issue of the intestate to take at his death, other persons are entitled under an executory devise, or other limitation. It seems full as necessary to save their rights, as the rights of tenants by the curtesy or in dower."

[S 19. Same as § 21 R. S.] Original note. "So much of the latter part of the 4th section of the act concerning uses, 1 R. L., 74, as relates to this subject."

[S 20. Same as § 22 R. S.] Original note. "This section is intended to change a very harsh rule of the existing law, by which a person not an alien himself, may sometimes be debarred from inheriting."

"CHAPTER III."

“OF THE PROOF AND RECORDING OF CONVEYANCES OF REAL ESTATE, AND THE CANCELLING OF MORTGAGES."

Extract from original note to Chapter.

"The following chapter contains a revision of the several statutes, general and special, now in force, relative to the acknowledgment, proof, and recording of deeds and mortgages, with such modifications as seemed necessary to give certainty and uniformity to the system.”

[S 1. Same as enacted.]

Original note. "Founded on 1 R. L., 362, 372. Laws of 1819, p. 269; 1821, p. 127; 1822, p. 261, 284; 1823, p. 412.

"The term 'conveyance,' is defined in § 32; and as there defined, includes mortgages; the effect of which will be, to place deeds and mortgages on the same footing.

"The rules of priority as it respects deeds and mortgages, under the present statutes, are different, as has been decided by the supreme court, (19 Johns., 282,) and as the terms of the laws plainly show. A mortgage, not recorded, is absolutely void, as against a subsequent bona fide purchaser, although the mortgage may be subsequently recorded before the recording of the conveyance of the purchaser. But as between two deeds, in all cases, and between two mortgages, the time of recording is the only test of the rights of the parties. No reason can be perceived for a distinction between the cases; and whichever rule is the most just, should be applied equally to all. The recording of an instrument is a public act, which fixes the date of its delivery beyond all question; and by requiring that test in all cases, vigilance will be promoted, and the temptation to fraud by the concealment of deeds, will be removed.

"There is another distinction between deeds and mortgages, which this section will also abolish. The first mortgage, although first recorded, if not given in good faith and for a valuable consideration, is absolutely void as against any subsequent mortgagee or purchaser; so that the right of an assignee of such first mortgage, who had no notice of the fraud, would be postponed. But an innocent purchaser under a fraudulent deed first recorded, is entitled to a preference against any subsequent purchaser or mortgagee. It seems evident that an

innocent assignee of a mortgage, is entitled to the same protection as an innocent purchaser."

[S 2. Same as enacted.] Original note. "This is according to the present practice, but perhaps not positive required by law."

[S 3. Same as enacted.] Original note. "The words and at the same time,' new. The existing law deprives the party for whose benefit the deed shall have been made, of the advantages 'given to mortgages.' The above section deprives him of all advantage from the recording, which seems to be only a just extension of the principle."

[S 4. Same as enacted. In this edition, sub. 3, added from act of 1829, chap. 222.] Original note. "This section embraces every officer now authorized by law to take the proof of deeds within the United States, and some more, viz.: District judges of the United States, the chancellor of the state, and the associate judges of the district of Columbia. The reason of each will be obvious. The words in italics, 'but no county judge, or commissioner of deeds for a county or city, shall take any such proof or acknowledgment out of the city or county for which he was appointed," are inserted to remove an existing doubt; vide 4th Cowen, 218, and in conformity to title 1, chap. 3, § 21, as to commissioners. The qualification to the second subdivision, is new, but seemed necessary. The intervention of officers of the United States and of other states, is also confined by the above section, to cases occurring out of this state."

[S 5, 6, 7. Same as enacted, except that the provisions relative to France and Russia, and to the making acknowledgment before the American Consul at London, were added by the act "concerning the Revised Statutes," reported by Revisers, and passed Dec. 10, 1828.] Original note to section as first proposed. "As to foreign ministers, laws of 1816, ch. 119, p. 118, extended in the above section to South America and to charge des affairs, who are perhaps not technically ministers, although they perform all the functions of the office.

"As to mayor of London, 3d section of act, 1st vol. R. L., p. 370; the other mayors, laws of 1817, p. 58, extended to all persons residing or being abroad."

Original note to amendments of December, 1828. "The three last propositions are recommended by gentlemen who are acquainted with the difficulties at present attending the proving of deeds, &c., in the countries specified. It is believed they will be a great relief to our citizens, as well as to our foreign ministers."

[S 12, as reported; not enacted; § 12 R. S. substituted.

Original note. "Latter part of first section of same act. The first words in italic are in conformity to the decision of the supreme court, in 20 John., 480; where it was held, that the same objection might be made to the proof of a deed by an incompetent witness, as if he had been offered on the trial. A point of such importance should be explicitly declared in the statute. The words described in, and,'

supply a serious omission in the statute."

[S 13, 14. Same as enacted, except a transposition in § 13.] Original note. "Instances have occurred where the want of such a provision has been severely felt; it is taken from 7th section of the act for giving relief in cases of insolvency, 1st vol. laws, p. 463.”