This section is from the book "Dart's Treatise On The Law And Practice Relating To Vendors And Purchasers Of Real Estate", by J. Henry Dart . Also available from Amazon: A treatise on the law and practice relating to vendors and purchasers of real estate.
Under s. 2 (1) of the Conv. Act, 1882, a requisition (c) for search may be made in the Central Office of the Supreme Court of Judicature (now in the Land Registry) for entries of judgments, deeds, or other matters or documents, of which entries are required or allowed to be made in that office by any Act described in Part I. of the first schedule to the
Conv. Act, 1881, or any other Act. By s.-s. 3 the certificate of search issued thereunder is to be conclusive in favour of a purchaser - including a lessee or mortgagee - as against persons interested in the matters for which the search is made.
By s.-s. 8, a solicitor who obtains an office copy certificate of result of the search is indemnified against any loss from error in the certificate. By s.-ss. 9,10, a similar indemnity is given to trustees, executors, agents, or other persons in a fiduciary position, whether they employ a solicitor or not.
By s.-s. 11, the provisions of the section are not to apply to deeds enrolled under the Fines and Recoveries Act, or under any other Act, or under any statutory rule. The list of searches to which the provisions of the Act apply, is not exhaustive; searches in county registers, Customary Court
Rolls, or for bankruptcies being excluded. The provisions as to searches contained in s. 2 of the Conv. Act, 1882, are, by s. 17 of the Land Charges Act, 1888, made applicable to searches in the registers kept at the Land Registry under the latter Act. By an order (d) made under the Land Charges
Act, 1900, all business connected with searches for English judgments, Us pendens, Crown debts, executions, and annuities has been transferred from the Central Office to the Land
Conv. Act, 1882.
(x) Grcenhalgh v. Brindley, 1901, 2 Ch. 324 ; 70 L. J. Ch. 740.
(y) Parker v. Whyte, (1863) 1 H. & M. 167 ; 32 L. Ch. 520; Robson v. Flight, (1864) 34 Beav. 10 ; 34 L. J. Ch. 101 ; Clements v. Welles, (1865) 1 Eq. 200 ; 35 L. J. Ch. 265 ; Morland v. Cook, (1868) 6 Eq. 252 ; 37 L. J. Ch. 825 ; Wilson v. Hart, (1866) 1 Ch. 463 ; 35 L. J. Ch. 569 ; and see and consider Carter v. Williams, (1870) 9 Eq. 678 ; 39 L. J. Ch. 560.
(s) Sug. 14th ed. 767, and cases there cited; and see sup. p. 889 et seq.
(a) Morland v. Cook, (1868) 6 Eq. 252 ; 37 L. J. Ch. 825 ; cf. Union Lighterage Co. v. London Gracing Dock Co., 1901, 2 Ch. 300 ; 70 L. J. Ch. 558 ; and see sup. p. 883.
(b) Allen v. Seckham, (1878) 11 Ch. D. 790; 48 L. J. Ch. 611.
(c) As to the form of requisition, see s.-ss 4 and 5.
A certificate of search under the Act of 1882 is conclusive; and no purchaser is entitled to go behind it, though he may make searches to which it relates independently. Such a certificate forms, it is conceived, a part of the title; and a purchaser need only search as from the date of the last certificate appearing on the abstract; unfortunately in practice the certificates are seldom abstracted.
Certificate a part of the title.
A solicitor is said to be liable to his client for any loss occasioned by his omission to make any one of the searches, which may by possibility disclose matter affecting the title (V) ; and he would certainly be held liable for omitting to require the official searches to be made. But, it is conceived, that where the title is laid before counsel, who advises specified searches, the solicitor will be protected if he merely follows the advice, unless aware of some particular reason for not doing so ; but if to his knowledge such reason exists, he is bound to act upon it: e.g., it was said that he was bound to search in the Insolvent Court, if he had reason to suspect that the vendor had been insolvent, or even if there was notice that he was or had been in embarrassed circumstances (/) ; and the fact of the solicitor making inquiry on the point from a party whose known interest it was to deceive him, was held an admission as against himself that an efficient search ought to have been made (g).
Liability of solicitor omitting to search for incumbrances, etc.
(d) (1900) W. N. R. &0. 234.
Sect. 12 of the Land Charges, etc. Act, 1888, renders all land charges created after 1888 void as against a purchaser for value unless registered at the Land Registry. By s. 4 a land charge is defined to mean a rent, annuity, or principal moneys payable by instalments, or otherwise, with or without interest charged, otherwise than by deed, upon land, under the provisions of any Act of Parliament, for securing to any person either the moneys spent by him or the costs, charges, and expenses incurred by him under such Act, or the moneys advanced by him for repaying the moneys spent, or the costs, charges, and expenses incurred by another person under the authority of any Act of Parliament, and a charge under s. 35 of the Land Drainage Act, 1861, or under s. 29 of the Agricultural Holdings (England) Act, 1883, but does not include a rate or scot. By s. 3 of the Tenants' Compensation
Registration of land charges.
"What must be registered.
(e) 1 Jarm. Conv. 3rd ed. by Sweet, 104 ; Walts v. Porter, (1854) 3 El. & Bl. 743 ; 23 L. J. Q. B. 345; see, as to negligence in stating a case for counsel's opinion, Ireson v. Pearman, (1825) 5 Dowl. & R. 687 ; as to negligence in passing a defect in title, Baikie v. Chandless, (1811) 3 Camp. 17 ; and generally as to the liability of a solicitor omitting to make the usual searches, Brooks v.
Day, (1780) 2 Dick. 572 ; Parker v. Rolls, (1853) 14 C. B. 691.
(f) By Erle, J., in Cooper v. Stephenson, (1852) 21 L. J. Q. B. 292; a case of a mortgage.
(g) S. C.
Act, 1890, the term is extended to include charges for compensation for improvements made under s. 31 of the Agricultural Holdings (England) Act, 1883.
It has been held in Reg. v. Vice-Registrar of Office of Land Registry (h) that charges which can be created without an application and irrespective of the wishes of the owner of the land, as for instance under s. 257 of the Public Health Act, 1875, are not land charges within the Land Charges Act, 1888. Inquiries should therefore be made as to the existence of such charges, which take priority of all others, and, if incurred under s. 257 of the Public Health Act, 1875 (i), or under an Act containing a similar provision (/>•), become so from the date of the completion of the works, in respect of which they are incurred, and not from the time of the apportionment between the persons liable thereto. Under L. T. Rules, 1903, r. 1 (1), a land charge for the purposes of the rules is defined as in the Land Charges, etc. Act, 1888, except that it is to include a charge, whether made upon the application of any person or not. Under rule 170 every land charge is to be deemed to be created by the proprietor on the register at the date of the charge, and is capable of registration, which, however, does not entitle the proprietor of the charge to the rights and remedies of a registered chargee under ss. 23 - 27 of the L. T. Act, 1875. Hence, it seems that a charge under s. 257 of the Public Health Act, 1875, is within this definition, and consequently, on a purchase of registered land, such charges may appear on the register, as by registration the chargee will be entitled to the remedies of a mortgagee by deed under the Conv. Acts.