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 subject of searches is dealt with below in Ch. XIX. s. 2.
Where a conveyance is executed under power of attorney, then (unless the instrument creating the power relates only to one transaction and is to be handed over on completion) the purchaser should see that the instrument or a certified copy thereof has been filed at the Central Office, as required by s. 125 (1) of the L. P. Act, 1925. But if the [power relates to land registered under the L. R. Act, 1925, the registration of the instrument, or of a certified copy, (is required to be made at the Land Registry, and if the power relates both to land registered and to land not registered, the original or a certified copy has to be filed at the Central Office and an office copy at the Land Registry. Notwithstanding any stipulation to the contrary, a purchaser of land (other than registered land) is entitled to have any instrument creating a power of attorney which affects his title, or a copy thereof, delivered to him free of expense (n).
Conveyance under power of attorney - registration of instrument creating power.
If the property is subject to the operation of any of the local Registration Acts, a memorial of the conveyance should be registered as soon as practicable after execution (o).
By s. 10 (6) of the L. C. Act, 1925, as amended by the L. P. (Amend.) Act, 1926, it is provided that in the case of a general equitable charge (p), restrictive covenant, equitable easement or estate contract affecting land within any of the three ridings, and in the case of any other land charge (not being a local land charge) created by a document which shows on the face of it that the charge affects land within any of the three ridings, registration is to be effected in the prescribed manner in the appropriate local deeds registry in place of the registry.
Conveyance should be entered in local register (if any).
(m) See Yates v. Plumbe, (1854) 2 Sm. & G. 174.
(n) S. 125 (2) of the L. P. Act, 1925, as amended by the Act of 1926. See also s. 219 of Jud. Act, 1925.
(o) See the Land Registry (Middlesex Deeds) Rules, 1926, Wolst. & Cherry, vol. ii. pp. 898 - 902. Rules for the Yorkshire ridings remain to be made.
(p) See s. 10 (1), Class C. (iii), of the L. C. Act, 1925; inf. pp. 1031 - 2.
By the L. P. Act, 1925, s. 11, it is provided that it is not necessary to register a memorial of any instrument made after the commencement of the Act in any local deeds registry unless the instrument operates to transfer or create a legal estate, or to create a charge by way of legal mortgage; nor will the registration of any instrument not required to be registered affect any priority. By sub-s. (2) probates and letters of administration are to be treated as instruments capable of transferring a legal estate to personal representatives; and by sub-s. (3) memorials of all instruments capable of transferring or creating a legal estate or charge by way of legal mortgage, may when so operating be registered. By s. 197, the registration in a local deeds registry of a memorial of any instrument transferring or creating a legal estate or charge by way of legal mortgage is to be deemed to constitute actual notice of the transfer or creation of the legal estate or charge by way of legal mortgage, to all persons, so long as the registration continues in force. By sub-s. '(2) the registration of a memorial of an instrument not required to be registered does not operate to give notice of such instrument. By s. 198 (1) the registration under the L. C. Act, 1925, or any enactment which it replaces in any register kept at the land registry or elsewhere, is to be deemed to constitute actual notice to all persons and for all purposes connected with the land affected, so long as the registration continues in force. But (by sub-s. (2)) the section operates without prejudice to the provisions of the Act respecting the making of further advances by a mortgagee (q), and applies only to instruments required or authorised to be registered under the L. C. Act, 1925.
Sect. 94 (2) of the L. P. Act, 1925 (as amended by the Act of 1926), provides that in making further advances after the commencement of the Act, a mortgagee is not to be deemed to have notice of a mortgage merely because it was registered as a land charge or in a local deeds registry, if it was not so registered at the time when the original mortgage was executed, or when the last search on behalf of the mortgagee was made, whichever last happened. But this sub-section only applies where the prior mortgage was made expressly for securing a current account or other further advances.
(q) See s. 94 of the L. P. Act, 1925.
Where two deeds are registered on the same day, and at the same hour, the memorial which is denoted by the earlier number will, in the absence of direct evidence to the contrary, be presumed to have been first registered (r).
As to priority between deeds registered at the same time.
The exceptions to the instruments which require registration in Middlesex are of copyhold estates, leases at a rack-rent, and leases not exceeding twenty-one years where the actual possession and occupation go along with the lease (s). Lord St. Leonards considered it to be the better opinion that the assignment of a lease, held at what was originally a rack-rent, need not be registered in respect of its having become a valuable property: a doctrine which should be cautiously received in practice. A lease which contains any engagement on the part of the lessee to build upon, or otherwise improve, the property, cannot, it is conceived, be considered as a lease at a rack-rent within the meaning of the exception; though the rent may be reserved from the date of the lease, and may exceed what would be the annual value of the property if let for any other purpose.
What interests are excepted from Registration Acts.
Leases at rack-rent, to what the exception of, extends.