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.
The old Local Registry Acts for the various ridings of Yorkshire (o), now repealed (p), and the existing Middlesex Registry Act, 1708, purport to render any deed affecting either the legal or equitable estate, void as against a purchaser or mortgagee claiming under an instrument of an earlier date of registration. Under these Acts, at Law, not-analogy the want of registration of an annuity deed under the Judgments Act, 1855, s. 12, is no protection to a subsequent purchaser with notice ; Greaves v. Tofield, (1880) 14 Ch. D. 563 ; 50 L. J. Ch. 118 ; and see the same principle applied with reference to stop-orders, Re Holmes, (1885) 29 Ch. D. 786 ; 55 L. J. Ch. 33 ; and cf. Mutual Society v. Langley, (1886) 32 Ch. D. 460; 53 L. J. Ch. 996; Trinidad Asphalte Co. v. Coryat, 1896, A. C. 587 ; 65 L. J. P. C. 100.
As to priority under the
Or against unregistered deeds in register counties.
(k) See s. 12.
(1) See ss. 22 - 6 ; Doe v. FhiUips, (1841) 1 Q. B. 84 ; and see as to sales by rector for redemption of land-tax, Doe v. Woodward, (1847) 1 Ex. 273; Beaden v. King, (1852) 9 Ha. 499; 22 L. J. Ch. 111. As to merger of land-tax, see sup. p. 393, n. (A).
(m) See Post Office Act, 1891, s. 13.
(n) See s. 19 of the Act of 1863.
(o) West Riding, 6 Anne, c. 20 (Ruff. 5 Anne, c. 18); East R., 6 Anne, c. 62 (Ruff. c. 35); North R., 8 Geo. II. c. 6.
(p) Yorkshire Registries Act, 1884, s. 51.
Prior registration conclusive at Law but not in Equity.
(q) Doe v. Allsop, (1821) 5 B. & Ald. 142.
(r) Johnson v. Holdsworth, (1850) 1 Si. N. S. 106 ; 20 L. J. Oh. 63 ; Blades v. B., 1 Eq. Ca. Ab. 358; Wrightson v. Hudson, (1737) 2 ib. 609 ; under the Irish Registration Act (6 Anne (Ir.), c. 2), see Fullerton v. Provincial Bank of Ireland, 1903, A. C. 309 ; 72 L. J. P. C. 79 ; and see Coote on Mortgages, 7th ed. 1266.
(s) Cheval v. Nichols, (1725) 1 Str. 664 ; Le Neve v. Le N., (1748) 3 Atk. 646, 651; Sheldon v. Cox, (1764) Amb. 624 ; Tunstall v. Trappes, Gosling's Case, (1829) 3 Si. 301 ; and see Jolland v. Stainbridge, (1797) 3 Ves. 478 ; Davis v. Earl of Strath-more, (1810) 16 Ves. 418. And by withstanding notice, mere priority of registration absolutely determined the right to the property as between parties claiming under adverse registered instruments purporting to pass the legal estate (q). In Equity, however, a different construction has been put upon the Acts; viz. : that the intention of the Acts was to protect parties against charges of which they would otherwise have no notice, and not on the one hand to vitiate an unregistered instrument, nor on the other hand to give to a registered one any greater force by virtue of its registration (r). Thus, in Equity, registration was no protection against an unregistered assurance of which the party claiming under the registered instrument had notice prior to the completion of his purchase or security (s): and his assignee for value and without notice was in no better position, if the interest assured were merely equitable, and he did not get in the legal estate (t). Registration is not of itself notice to the world (u) : and therefore registration of an equitable incumbrance did not prevent the person who then had, or subsequently acquired, the legal estate from using it for the protection of any equitable interest which he might have acquired in the property without notice of the registered incumbrance (x) : and in like manner it was held that a purchaser advancing his money and taking a conveyance without notice of a prior deed unregistered (y), or only imperfectly registered, might, upon acquiring notice of it, register his own deed, and so gain priority on the same principle which allows a purchaser without notice of a prior incumbrance, upon afterwards getting notice of it, to get in an outstanding-legal estate (z). But a purchaser or mortgagee, who, at the date of the conveyance or mortgage, had notice of a prior unregistered instrument, did not acquire priority by registering his own deed (a) : the policy of the Acts being to protect parties against charges of which they had no notice, and not against those which were known to them (b) : and of course the registration of a forged deed could give it no validity (c).
(t) Ford v. White, (1852) 16 Beav. 120.
(u) Morccoch v. Diclcins, (1768) Amb. 678 ; Williams v. Sorrcll, (1799) 4 Ves. 389 ; Wiseman v. Westland, (1826) 1 Y. & J. 117.
(x) See Morccoch v. Dickins, (1768)
But it was only by actual notice clearly proved that a registered deed would be postponed to a prior unregistered instrument (d) ; and though in many cases notice to the solicitor or agent was held sufficient to bind the client or principal (c), yet even in such cases there must have been direct, as distinguished from merely imputed, notice (/). In one case the omission of a solicitor, when preparing a marriage settlement of land in Middlesex, to examine the earlier title, was treated as constructive notice of a prior unregistered equitable charge; and the settlement, though registered without any actual notice of the charge, was postponed to it (g) : but in a later case under the Irish Act, the House of Lords expressly disapproved of this decision, and held that the mere omission on the part of a solicitor, when preparing a legal mortgage of land in Ireland to require production of the title deeds, for the non-production of which a reasonable excuse was given, did not postpone the legal mortgage, which was duly registered, to a prior unregistered equitable charge (//).
Arab. 678 ; Bedford v. Bacchus, (1730) cited ib. 680 ; Wrightson v. Hudson, (1737) 2 Eq. Ca. Ab. 609 ; contra, in Ireland, Mill v. Hill, (1852) 3 H. L. C. 828 ; and see Be Russell Road Purchase, (1871) 12 Eq. 78 ; 40 L. J. Ch. 673.
(y) Elsey v. Lutyens, (1856) 8 Ha. 159.
(z) Essex v. Bough, (1842) 1 Y. & C. C. C. 620; 11 L. J. N. S. Ch. 374.