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.
These Acts are framed for the purpose of enabling a purchaser for value, or mortgagee of freehold, or leasehold land, to carry out his purchase or charge solely on the faith of the entries on the register, and to some extent this object is achieved. To simplify the book-keeping, trusts and equities are not to appear on the register, but the persons interested in such must protect their rights by means of cautions, inhibitions, restrictions, and, in the case of certain leases, notices.
The object of the Acts.
Trusts and equities to be kept off the register.
At present the register cannot be relied on to show who has the power to grant easements or leases, though the title to make the grant may generally be taken up from the last transfer for value on the register. This omission militates greatly against the usefulness of the register, but it is apprehended that the matter will be attended to when the Acts are amended and consolidated.
Register does not show who has power to create easements or grant leases.
The registered proprietor or other person in whom the legal estate is for the time being vested can, under s. 49 of the L. T. Act, 1875, convey it by deed off the register (a). This is most convenient in regard, for instance, to the fixing of priorities of incumbrancers and other persons claiming off the register, and to the creation of legal settlements ; nor does the cannot be adopted, for L. T. Act, 1897, s. 16 (2) provides that the vendor of registered land shall, notwithstanding any stipulation to the contrary, provide for the registration of the purchaser.
Legal estate can be conveyed off the register.
(a) Capital and Counties Bank v. Modes, 1903, 1 Ch. 631; 72 L. J. Ch. 336 ; this decision seems to be correct, but the suggestion (p. 655) that conveyancing may proceed just as if the Acts had not been passed fact that the legal estate can be so disposed of in any way prejudice the working of the register.
For the legal estate so conveyed is always capable of being extinguished by a registered transfer for value, unless the legal estate happens to be paramount to the estate of the first registered proprietor with a possessory title, or in the case of an absolute title, unless there is an entry on the register to protect it.
Legal estate created off the register always defeasible.
Hence, where a legal estate is created under s. 49 of the L. T. Act, 1875, it is necessary to protect it from being defeated by the exercise of the over-riding power of disposition of the registered proprietor (b) of the land or of a registered chargee under his power of sale, for the latter has power to dispose of the land as if he were the registered proprietor thereof (c). A legal estate, conveyed under s. 49, stands on the same footing in regard to the register as if it were a mere equity, and requires the protection of a caution, inhibition, restriction, or, in the case of a legal term, a notice under s. 50 of the L. T. Act, 1875.
Legal estate to be protected against the overriding power of the proprietor.
The most noticeable feature of the Acts is the over-riding power of disposition given to the registered proprietor when he transfers the land for value ; this he can do either by way of sale, exchange, or partition, and the disposition when registered will, in the case of an absolute title, in effect overreach everything except incumbrances entered on the register, and except leases of which notice is given under s. 50 of the L. T. Act, 1875, and certain matters which are by s. 18 of L. T. Act, 1875, as amended by the Act of 1897, declared not to be incumbrances. In fact, the power of disposition may be best described as an over-riding statutory power of appointment applicable to leaseholds as well as freeholds, limited, in regard to its over-reaching effect to certain purposes, and capable of being restricted only by the methods indicated in the Acts. In the case of a possessory title, the rights outstanding at the date of first registration are unaffected.
The overriding powers of the registered proprietor.
(b) L. T. Act, 1875, s. 30.
(c) L. T. Act, 1875, s. 27.
It is not intended here to give a full explanation of the scheme or machinery constituted hy the Acts and Rules, which are very complicated, nor to deal with the different attributes of an absolute, qualified, good leasehold or possessory title ; for such matters the reader is referred to the text-books on the Acts (d).
It is considered that it will be sufficient to deal with some of the difficulties which arise on completion of a sale or of a lease when the land is under the compulsory provisions liable to be registered, and to refer to the main provisions relating to sales of registered land.
Even with this limitation the matters under discussion cannot here be dealt with exhaustively, for as the L. T. Acts, 1875 and 1897, are primarily of the nature of Y. & P. Acts, nearly all the sections may have to be considered by a purchaser.
Complicated scheme and machinery of the Acts not dealt with.