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.
Summary of present law, relating to writs and orders under the Acts of 1888 and 1900.
Though, theoretically, a search ought to be made for five years preceding the sale in the names of former owners, with a view to the possibility of prior writs and orders having been made against them, and kept alive by re-registration (f), it is not usual in practice, even on purchases in the Chancery Division, in the absence of special grounds for suspicion, to go back further than the last mortgagee or purchaser for value, it being assumed that proper searches were made on behalf of such mortgagee or purchaser.
When to be made in the names of prior owners.
Wherever there was reason to suspect that the vendor was a debtor or accountant to the Crown, search used to be mado (except in the case of copyholds) (g) for Crown debts and accountantships (h). The lien of the Crown attached as from the time when the owner of the land became an accountant, but now attaches only from the date of registration of the writ (7). All freehold lands may be taken in execution by the Crown; and the lien extends to equitable interests ; nor can it be defeated by the execution of a power of appointment (k), or by the assignment of an attendant term already held in trust for the debtor or accountant (/) ; and the claims of the Crown cannot be defeated, after they have attached, by a conveyance of the land to a purchaser (m) ; and a purchaser, evicted by the Crown, will have no allowance made him for repairs and improvements (n). Though copyholds are not extendible on Crown process, the exemption does not extend to a lease of copyholds granted by licence of the lord (o), or, it is conceived, by special custom of the manor. But Crown debts do not affect the debtor's terms for years in gross, whether his estate be legal or equitable, until the teste of the extent (p) ; so that an intermediate alienation binds the Crown.
(/) Not as against the debtor, in whoso favour the Statute of Limitations runs: Ex p. Tynte, (1880) 15 Ch. D. 125 ; Evans v. 0'Donnell, (1886) 18 L. R. Ir. 170; seo sup. p. 459.
(g) Aldrich v. Cooper, (1803) 8Ves. 394.
(h) As to who are liable as accountants, see 33 H. VIII. 0. 39 ; 13 Eliz. c. 4; C G. IV. c. 105, s. 13; 6 G. IV. c. 104, s. 7 ; Prid. J. 159 et seq.; Carson, R. P. 10th ed. 5.11.
(i) Land Charges Act, 1900, s. 2.
(k) Prid. J. 101; It. v. Ellis, (1819) 4 Ex. 652; (1851) 6 Ex. 921; 19 L. J. Ex. 77; 20 ib. 348.
(I) R. v. Smith, Sug. 14th cd. 543 ; R v. lamb, (1824) 13 Pr. at p. 649 ; It. v. Ellis, sup.
(m) Coxhead case, (1583) Moo. 126. (n) It. v. Bailey, cited Mann. Exch. P. 37, n.
Previously to 1839 a purchaser had no means of ascertaining whether his vendor was a debtor or accountant to the Crown. By s. 8 of the Judgments Act, 1839, no bond given to the Crown is henceforth to affect the debtor's land until it has been registered. Re-registry of Crown debts was at first not required ; but by s. 22 of the Law of Property Amendment Act, 1859, the provisions as to the re-registration of judgments were extended to Crown debts; so that a search for five years became sufficient.
By ss. 48 and 49 of the Crown Suits, etc. Act, 1865, future Crown debts did not affect land as against a purchaser for value in good faith or a mortgagee, even with notice, until a writ of execution had been issued and registered; and a new mode of registration was provided similar to that for judgments. Crown debts became a charge upon the land immediately upon the registration of the writ; it was never necessary (as in the case of judgments before the Land Charges Act, 1900), that in the case of Crown debts the land should have been actually delivered in execution in order to create a charge thereon. The above-mentioned enactments are repealed by the Land Charges Act, 1900, which extends the operation of s. 6 of the Land Charges, etc. Act, 1888 (q), to writs and orders, etc, obtained on behalf of the Crown ; and s. 2 prevents Crown judgments from becoming a charge upon land until registration of the writ or order. This Act applies to judgments, writs, etc, whether obtained before or after the passing of the Act. The result is that the search for writs and orders now covers Crown debts.
Crown Suits, etc. Act, 1865.
Searches now to be made.
(o) Prid. J. 150.
(p) R. v. Lamb, (1824) 13 Pr. at p. 659.
(q) As to which see sup. p. 868.
The Judgments Act, 1839, provided for the registration of a quietus, and for the discharge of part of the debtor's land, in certain cases, without prejudice to the claim of the Crown on the remainder; and now, under the Crown Debts and Judgments Act, 1860, satisfaction of a registered Crown debt will be entered up by the registrar, upon a certificate of the commissioners or principal officer of the public department holding the bond being filed at the office; but, in the case of railway bonds, it appears to be still necessary to obtain a judge's order before satisfaction can be entered up. Since the Judicature (Officers) Act, 1879, satisfaction is entered at the Central Office.
Entry of satisfaction of Crown debt.
A registered lis pendens, though not of itself an incumbrance, apart from the equity on which the litigation is founded, fixes an intending purchaser with notice of any adverse claim or unsatisfied charge, which may be the subject of the action ; and in every case the search ought to be made in the Land Registry (r). If upon inquiry the action is found not to involve any question of title or charge upon the property about to be dealt with, it may be safely disregarded. The mere existence of a registered lis pendens, apart from the question raised in it, is not a sufficient reason for refusing to complete a purchase (s). The doctrine has no application to personal property, other than chattel interests in land (t).