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) See Elph. & C. 35, 43.
Judgments Act, 1838.
Judgments Act, 1839.
By s. 1 of the Law of Property Amendment Act, 1860, which was not retrospective (c), before a judgment could affect land (of whatever tenure), as against a purchaser or mortgagee, whether with or without notice, a writ of execution must have been issued, and registered before the conveyance or mortgage; and the execution put in force within three calendar months from the date of the registration of the writ.
Registration of writs of execution under the Act of I860.
Under this Statute a registered judgment, under which the land had not been actually delivered in execution, instead of being a charge of indefinite duration, if kept alive by the process of re-registration, was made a charge upon the land only while a writ of execution was in force, viz., for a period of three calendar months from the date of registration. There was no provision for the re-registration of the writ at the end of the three months, and it was the practice at the office to refuse re-registration, as not being authorised by the Statute (d) ; but there would seem to have been nothing to prevent the registration of a second, or any subsequent, writ on the same judgment.
Could not be registered at the end of the three months;
Lut a fresh writ on the same judgment might be registered, semble.
Under the Judgments Act, 1864, which also was merely prospective, no judgment affected land until actually delivered in execution by virtue of a writ of elegit or other lawful authority. The writ or other process of execution was to be registered in the name of the debtor. But it was held (e) that registration under this Act was only necessary in order to entitle the judgment creditor to obtain an order for sale under s. 4, that a judgment creditor, to whom the land had been actually delivered in execution, obtained an estate by elegit which could not be defeated by a subsequent purchaser for value without notice, and that neither the judgment nor the writ of execution need be registered. This gave rise to great danger to purchasers, because it was almost impossible to discover whether land had been delivered in execution or not.
Registration under the Act of 1864.
(b) Instituted by 4 & 5 W. & M. c. 20, as to which see Elph. & C. 15 et seq.
(c) See Evans v. Williams, (1865) 2 Dr. &S. 324; 34 L. J. Ch. 661.
(d) See Pask on these Acts, p. 9.
This danger is now remedied by the provisions of the Land Charges, etc. Act, 1888, and the Land Charges Act, 1900. By s. 6 of the Act of 1888 any writ or order affecting land issued or made by any Court for the purpose of enforcing a judgment, statute or recognizance, and any order appointing a receiver or sequestrator of land, and every delivery in execution is rendered void as against a purchaser for value of the land unless registered for the time being in the register kept at the Land Registry. Registration must be renewed every five years, and if renewed is to have effect for five years from the date of renewal. Power to vacate the registration of a writ or order affecting land, formerly wanting, lias been given by s. 19 of the S. L. Act, 1890. By the Land Charges Act, 1900, s. 2, after the 1st July, 1901, a judgment, whether obtained before or after that date, and whether entered up on behalf of the Crown or otherwise, will only become a charge on the land when (and not before) a writ or order for the purpose of enforcing it has been registered under s. 5 of the Act of 1888.
Registration of writs and orders, present law as to.
It will be noticed that the Act of 1888 only rendered an unregistered execution void as against purchasers. Hence it is conceived that a purchaser cannot safely complete if he has notice of a delivery in execution, even though the writ has not been registered. Such an execution is valid as against the judgment debtor, and may be held to be so as against a purchaser with notice thereof.
Purchaser, whether affected by-notice of unregistered execution.
(e) Re Pope, (1886) 17 Q. B. D. 743.
The Act of 1900 repealed all the provisions as to registration prior to the Act of 1888, and also the provision in the Judgments Act, 1861, as to the necessity of actual delivery in execution, except where a sale is sought for under s. 4 of the Act of 1861. Registration under s. 2 is only necessary in order to give the judgment creditor the benefit of s. 13 of the Judgments Act, 1838, and s. 4 of the Judgments Act, 1864, and does not affect the rights of a judgment creditor to whom land has been actually delivered in execution.
Land Charges Act, 1900.
Hence the result of the two Acts seems to be this: - (i.) A judgment creditor to whom land has been actually delivered in execution is entitled to hold the land as against the judgment debtor; but under s. 6 of the Act of 1888 will be defeated by a purchaser for value unless the writ of execution is for the time being registered, (ii.) In order for a judgment, at whatever date obtained, to become a charge in Equity under s. 13 of the Judgments Act, 1838, a writ or order for the purpose of enforcing it must have been registered under s. 5 of the Act of 1888; and this is necessary for the judgment to become a charge at all, and not merely to render it valid as against purchasers, (iii.) For a judgment creditor to be entitled to obtain an order for sale under s. 4 of the Judgments Act, 1864, the land must have been actually delivered in execution, and, it is conceived, the writ registered. The Act of 1900, while repealing the words in s. 4 of the Act of 1864, "and whose writ or other process of execution shall be duly registered," has not repealed the words, " while the registry of such writ or other process shall continue in force." The latter words referred to the registration introduced by the now repealed Law of Property Amendment Act, 1860, which required the execution to be put in force within three months from registration, but they may now be held to refer to the registration required by s. 2 of the Land Charges Act, 1900. In any case the order for sale will require registration under the Act of 1888.