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.
(a) Chevalv. Nichols, (1725) 1 Str. 664 ; Blades v. B., 1 Eq. Ca. Ab. 358 ; Bushell v. B., (1803) 1 Sch. & L. 90, 99, where all the earlier cases are considered.
(b) Johnson v. Holdsworth, (1850) 1 Si. N. S. 106, 108 ; 20 L. J. Ch. 63.
(c) Cooper v. Vesey, (1882) 20 Ch. D. 611; 51 L. J. Ch. 862.
(d) Wyatt v. Barwell, (1815) 19
Ves. 435 ; and see judgment of Sugden, L. C, in Marjoribanks v. Hovenden, (1843) Dru. 11, 22; Ful-lerton v. Provincial Batik of Ireland, 1903, A. C. 309 ; 72 L. J. P. C. 79. A purchaser claiming under a registered voluntary settlement has been held to have priority over persons claiming under an earlier unregistered voluntary settlement of which he had no notice ; Re MiDo-nagWs Est., (1879) 3 L. R. Ir. 408.
(e) See Le Neve v. Le N, (1748) 3 Atk. 646; Sheldon v. Cox, (1764) Amb. 624 ; Nixon v. Hamilton, (1838) 2 D. & Wal. 364 ; Lenehan v. M'Cabe, (1840) 2 Ir. Eq. R. 342.
(f) Marjoribanks v. Hovenden, sup. ; Ratcliffe v. Barnard, (1871) 6 Ch. 652 ; 40 L. J. Ch. 777; Agra Bank v. Barry, (1874) L. R. 7 H. L. 135; and see Oliver v. Hinton, 1899, 2 Ch. 264 ; 68 L. J. Ch. 583.
As respects lands situate in a register county, the priorities of judgments inter se depend on the order of their registration in the local register (i).
Priorities inter se of judgments on local register.
Where two deeds are registered on the same day, and at the same hour, the document denoted by the earlier number will be presumed to have been first registered (k).
Where deeds are registered at the same time.
With regard to lands in Middlesex, the Middlesex Registry Act, 1708, as amended by the Lands Registry (Middlesex Deeds) Act, 1891, is still in force, and the law laid down by the authorities on that and the kindred Yorkshire Acts still applies. The Act, however, does not apply to an instrument made after the passing of the Lands Charges Act, 1900 (/), and capable of registration thereunder or under the Lands Charges Registration and Searches Act, 1888.
Old law and authorities still apply to lands in Middlesex.
Neither the Middlesex nor Yorkshire Registry Acts apply to lands registered under the Land Transfer Acts (m), except estates and interests excepted from the effect of registration under a possessory or qualified title, or, an unregistered reversion on a registered leasehold title, or, dealings with incumbrances created prior to the registration of the land (n).
Effect of L. T. Acts on local registries.
(g) Wormald v. Maitland, (1SG6) 35 L. J. Ch. 69.
(h) Agra Bank v. Barry, sup. ; Ratcliffe v. Barnard, sup.
(i) Neve v. Flood, (1864) 33 Beav. 6GG ; 34 L. J. Ch. 89 ; and see Benham v. Keane, (1861) 3 D. F. & J. 318; 31 L. J. Ch. 129; Westbrook v. Blythe, (18.54) 3 E. & B. 737; 23 L. J. Q. B. 386 ; Hughes v. Lumley, (1854) 4 E. & B. 274 ; 24 L. J. Q. B. 57.
(k) Neve v. Tennell, (1863) 2 H. & M. 170.
(l) I.e., 30th July, 1900; sees. 4.
(m) See s. 127.
With regard to lands in Yorkshire, a great change was made by the Yorkshire Registries Acts, 1884 and 1885, which apply to the whole county. These Acts contain no declaration that all unregistered instruments shall be deemed to be fraudulent and void: but provision is made, and elaborate machinery provided, for the registration of assurances, charges and wills (o). Sect. 14 enacts that all assurances entitled to be registered under the Act shall have priority according to the date of registration thereof, and not according to their date, and that every will so registered shall have priority according to the elate of the testator's death, if the date of registration is, or is to be deemed to be, within six months after the testator's death, or according to the date of registration thereof, if the registration is not, or is not to be deemed to be, within such period of six months; but nothing in the Act is to interfere with the priorities as between themselves of any assurances or wills, the dates of registration of which may be identical. Under the same section all priorities given by the Act are to have full effect in all Courts except in cases of actual fraud, and all persons claiming thereunder any legal or equitable interests are to be entitled to corresponding priorities, and no such person is to lose any such priority merely in consequence of his having been affected with actual or constructive notice, except in cases of actual fraud (p); but nothing in the section is to operate to confer upon any person claiming without valuable consideration under any person any further priority or protection than would belong to the person under whom he claims; and any disposition of land or charge on land which if unregistered would be fraudulent and void will, notwithstanding registration, be fraudulent and void in like manner.
The law under Yorkshire Registries Acts, 1884 and 1885.
(n) L. T. Act, 1897, Sched. 1. See also L. T. Rules, 1903, rr. 175, 176.
(o) York. Reg. Act, 1884, ss. 413 ; and see sup. p. 703 et seq.
(p) See Battison v. Hobson, 1896, 2 Ch. 403 ; 65 L. J. Ch. 695, as to what is " actual fraud."
Sect. 14 of the Act of 1884 makes registration the absolute test of priority, and expressly abolishes the old equitable rule, which prevailed under the former Acts, that registration was no protection against an unregistered assurance, of which the party claiming under the registered assurance had notice at the date of completing his purchase or security (q).
Remarks on s. 14.
Sect. 15 of the Act of 1884 made registration actual notice per se. But this was found to be of great commercial inconvenience, inasmuch as it prevented bankers and other persons in like situations from ever making even the smallest further advance to a customer, or even allowing a fresh overdraft of his account, without searching the register on each occasion for registered charges, intermediate between their last advance and that in contemplation. The section was accordingly repealed by the Amendment Act of 1885, s. 5. The repeal, however, did not extend to s. 16, which was allowed to remain intact, and which provides that in any case in which priority or protection might but for the Act have been given or allowed to any estate or interest in lands by reason or on the ground of such estate or interest being protected by or tacked to any legal or other estate or interest in such lands, no such priority or protection shall after the commencement of the Act be so given or allowed to any estate or interest in lands within the three Hidings, except as against any estate or interest which shall have existed prior to such commencement; and full effect is to be given in every Cornet to this provision, though the party claiming such priority or protection as aforesaid shall claim as purchaser for valuable consideration and without notice.