... for the considerations therein mentioned ...

or, What a Memorial of an Indented Deed is, and what it isn't.

149-202-99462 stevenson to craig

During the past few months, while transcribing and indexing memorials of Irish deeds, I've noticed certain legal terms and turns of phrase. Historic newspapers are the same way: after a time, you begin to recognize patterns in language and style, and to understand contemporary expressions or idioms that have since become obsolete. In the case of the memorials, this holds true, but it would seem that, on occasion, a memorial was also a case of what was not being said, or was barely hinted or winked at.

For example, after stating that Party A had transferred or conveyed a parcel of land (or a tenement, park, etc.) to Party B, many memorials contain the phrase, "for the considerations therein mentioned." The reader is left with many unanswered questions, such as, what was given up by Party B in order to obtain the property of interest? Who benefitted by this transaction, and by how much? Alternatively, did Party B convey something to A that A desperately required? Did the property approximate the value of the consideration? What form did the consideration take—was it money, a promise of money, a debt instrument, a partition of property? ... What price had been exacted, and on what terms, exactly??

To illustrate, we might consider the memorial of indented deeds of lease and release executed by William Stevenson of Edinburgh and his son, James Stevenson of Stewartstown, on 24 & 25 April 1751. [1] The essential facts of the transaction were recorded: the names of the contracting parties and their domiciles; a detailed description of what properties were conveyed by the Messrs. Stevenson; the names and domiciles of the witnesses; an indication as to which witnesses signed the memorial; the date, time, and place of registry; and the name and title of the registrar. However, nowhere is it stated what Mr. Craig and Mr. Kirk conveyed in return, and on what conditions.

Instead, the memorial states only that the properties were granted "for the considerations therein mentioned," to Mr. Craig "to the Intent & purpose in the s'd Deed of Release Expressed." It's as if these phrases were used deliberately, to cast a veil over the true nature or the fundamental bargain that was struck. This particular deed, then, provides an excellent example of an important feature of the registry system, that is, a memorial is not necessarily a true copy of a deed or conveyance.

In fact, the statute, or act, which gave rise to the registration of memorials in 1707—the Registration of Deeds Act (6th Anne, chap. 2)—stipulated that only certain data elements had to be included in a memorial. Indeed (pun acknowledged), one 19th century legal writer prefaced his outline of these elements with the phrase, In order to avoid unnecessary disclosure of private affairs. Thus, the new Act decreed that the memorial of a deed or conveyance need contain only the following information:

  1. the day of the month or year when the deed was executed;
  2. the names and additions of all the parties;
  3. the names of all the subscribing witnesses;
  4. the place of abode of any subscribing witness to the memorial who was not a subscribing witness to the deed or conveyance;
  5. the lands, tenements, and hereditaments contained in such deed or conveyance, and where these lands, &c., were situated, including the names of the counties, baronies, cities, towns, parishes, townlands, &c., in the same manner as these lands, etc. were described in the deed or conveyance. [2]

Any information given above and beyond these requirements, then, is a gift to the genealogist and the local historian. Examples of such bonuses include:

  • a statement of relationship between parties (wife, brother, &c.);
  • the domiciles of any of the parties (except no. 4, above);
  • occupations (farmer, weaver, merchant, peruke maker, &c.);
  • titles (Esq., Gent., &c.);
  • birth order of sons or daughters named in terms of lives;
  • whether one of the contracting parties or witnesses had died between the time the deed was executed and the date that the memorial was registered;
  • expression of paternal affection for one's son as the basis, or partial basis, for executing a deed; and of course,
  • the amount of monies or other financial instruments which had, or would, exchange hands.

Likely, the parties, aided no doubt by their legal advisors, added such details to clarify their intents and purposes, and to avoid mistakes in interpretation.

Returning to the transaction whereby William Stevenson and James Stevenson granted most of their lands in the parish of Donaghenry, taken by itself, the Memorial doesn't tell us much. Instead, we have to consider it in the context of other memorials (including their dates of registration) and archival documents. For instance, in his last will and testament, proved four years earlier in 1747, Capt. James Stevenson referred to the considerable indebtedness of his unfortunate son William. From this date, a series of other deeds, together with biographical notes penned by one of his sons, suggest that the deeds of lease and release of 1751 may have involved a mortgage of the property, subject to the usual clause of redemption with interest and costs. If this were the case, then William would have been in a position to repay some or all of his debts and to start anew as a merchant in Edinburgh.

I will close this blog article with a list of references that have assisted my lay understanding of the registration of deeds in Ireland:

  • "Registration of Deeds," by John Smith Furlong and Edmund R. Digues Latouche. Chapter II in, The Law of Landlord and Tenant as Administered in Ireland. Vol. I. (Dublin: Edward Ponsonby, 1869.)
    ☛ The authors outline the development of the system with reference to the various statutes, in chronological order. In this way, the reader may know which statutes prevailed on particular dates. Sections 1 and 3 are highly recommended.
  • A summary of the key features of the first statute, giving rise to the Registry of Deeds in Ireland. [3] (Click on the hyperlink to read the note.)
  • A summary of the rules governing the registry of deeds. [4]
  • Additional notes about memorials. [5]
    ☛ Most of the material given in notes [3] – [5] is either recited or paraphrased from Furlong and Latouche, op. cit.
  • A Treatise on the Law of Landlord and Tenant in Ireland, 2nd ed., by John Finlay, LL.D. (Dublin: John Cumming, 1835).
    ☛ This book is available online at books.google.ca.

Needless to say, this list is hardly exhaustive, and there are any number of modern works written on the subject.

❖          ❖          ❖

Sources and notes:

1.

Registry of Deeds, Ireland. Memorial no. 149-202-99462: Stevenson & Son & another to Craig (dated 24 & 25 April 1751; reg'rd 5 July 1751). Copy per FHL film no. 461356. Transcribed by Alison Kilpatrick, and submitted to www.irishdeedsindex.net, 2016-08-18.

2.

Furlong, John Smith, and Edmund R. Digues Latouche. "Registration of Deeds." Chapter II in, The Law of Landlord and Tenant as Administered in Ireland. Vol. I. Dublin: Edward Ponsonby, 1869 (pp. 456–71).

3.

Key features of the statute (6th Anne, chap. 2), enacted in 1707 and effected in March, 1708:

  • a memorial of all deeds and conveyances should (versus must) be registered where any lands in Ireland may be affected;
  • every deed or conveyance not registered, where it should have been, would be deemed fraudulent and void; and,
  • leases with terms of twenty-one years or less, where the lessee was in actual occupation of the affected land, did not have to be registered.

4.

Rules governing the registry of deeds in the 18th century:

  • a memorial of all deeds and conveyances shall be registered where any lands in Ireland may be affected;
  • every such deed, whereof a memorial shall be registered, shall be deemed good and effectual in law and equity, according to:
    • (a) the priority of time of registering such memorial, for the lands mentioned in such deed,
    • (b) the right and title of the person conveying such lands, against every other deed, or dispostion thereof;
  • every deed or conveyance, not registered, of any lands comprised in such deed or conveyance, whereof a memorial shall be registered in pursuance of this act, shall be deemed fraudulent and void, not only against such registered deed or conveyance, but likewise against every creditor by judgment or recognizance, as for and concerning the lands contained in such registered memorial;
  • however, nothing in the act shall extend to any lease not exceeding 21 years, where the actual possession goeth along with such lease.
  • every memorial of a deed or conveyance shall be under the hand and seal of some or one of the grantors, or some or one of the grantees, his, her, or their guardians or trustees, attested by two witnesses, one whereof to be one of the witnesses to the execution of such deed or conveyance;
  • which witness shall, by affidavit before the registrar, or his deputy, prove the signing and sealing of such memorial, and the execution of the deed or conveyance mentioned in such memorial, and the day and time of delivery of such memorial to the registrar or his deputy.

In 1721, 8 Geo. I., c. 15, s. 1 (Irish), authorized the heirs, executors, administrators, or assigns of any grantee, in any deed, who has died without executing any memorial for its registry, to execute a memorial thereof, which would be declared as valid from the time of the registry, as if executed by the immediate grantee.

5.

In addition to the rules cited in the blog article:

  • every deed or conveyance, for which a memorial was to be registered, be produced to the registrar or his deputy at the time of entering the memorial, who would indorse a certificate upon the deed or conveyance, mentioning the certain day and time on which such memorial was registered, with the registrar's or the deputy's signature;
  • whenever the affected lands, tenements, or hereditaments contained in any deed or conveyance were situated outside the city or the county of Dublin, an affidavit could be sworn before one of the judges at the local assizes, or before the justices at the general quarter sessions of the county where the lands, tenements, etc. were situated, or before a person commissioned for taking affidavits in the country—which affidavit would then be presented with the memorial to the registrar or his deputy—at which time, one of the witnesses to the execution of the deed or conveyance swore that he saw the same executed, and the memorial signed and sealed as by the act directed.

❖          ❖          ❖

© Alison Kilpatrick, 2016. All rights reserved.
Copyright notice

"The past is a foreign country; they do things differently there."—Lesley Poles Hartley (1895–1972), The Go-Between (1953).

E-mail   |   Subscribe to RSS feed   |   Subscribe to mailing list   |   Privacy statement   |   Site map

© Alison Kilpatrick 2014–2017. All rights reserved.