(q) Above, p. 1127.

(r) Above, p. 1074.

(s) If, as suggested below, the mortgagee insist on obtaining a covenant for a transfer to himself in case of his entry into possession, coupled with a power of attorney to effect such transfer, it is necessary that he should also insist on a restriction against any registered dealing without his consent; as he must obtain a fresh covenant to make or concur in the transfer to himself and a fresh power of attorney from every person whom he may permit to be registered as proprietor either of the land or of a subsequent charge thereon. If the mortgagee be content to do without such covenant, he need only procure a restriction against registering, without his consent, any transfer of the land made either by the registered proprietor of the land or by the registered proprietor of a subsequent registered charge in exercise of his power of sale.

Searches.

(t) See above, pp. 1062, n. (u), 1065, n. (o).

(u) It is eminently desirable for the mortgagee, if obliged to take possession, to be enabled to procure himself to be registered as proprietor of the land; above, p. 1129. But the covenant and power of attorney here suggested, with the restrictions necessary to maintain their efficacy, place very serious obstacles in the way of the mortgagor's obtaining a loan on the security of a subsequent mortgage of the land. If, however, such covenant and power of attorney be inserted in the mortgage deed, they may as well be made to extend to the case of foreclosure; above, p. 1126 & n. (x).

(x) The restriction prevents the transfer from being registered without the mortgagee's consent.

{y) Above, p. 1074.

The above remarks apply to mortgages of land registered with an absolute title. Where the land proposed to be mortgaged is registered with a qualified or possessory title, the estates or interests paramount to the title registered (b) must be got in and mortgaged by a common assurance outside the register (c): and in addition, that part of the estate in the land, which is the subject of the registered title, must be mortgaged in the same manner as if the title registered were absolute.

Mortgages of land registered with a qualified or possessory-title.

Mortgages of registered land being generally carried out in one of the two modes of assurance above described (d), the problem is how to combine such a mortgage with a conveyance on sale when it is intended to pay part of the price with the mortgage money. There is no difficulty if the mortgage is to be secured by a registered transfer of the land charged to the mortgagee. The transfer is taken direct from the vendor to the mortgagee at the purchaser's request; and if the title has been cleared, all outstanding estates or interests duly got in and a priority notice (e) obtained, the mortgage money can safely he paid on receipt of the instrument of transfer and the mortgage deed, duly executed by all necessary parties, and of the land certificate with the priority notice endorsed (f). But if the mortgage is to be taken by registered charge, coupled with an unregistered mortgage of the purchaser's estate in the land, the transaction is complicated. As regards the proposed registered charge, the Land Transfer Act, 1897 (g), enables a person, on whom the right to be registered as proprietor of land has been conferred by an instrument of transfer in accordance with the Acts, to charge the land before he is himself registered as proprietor; and a charge so made shall have the same effect as if the person making it were registered as proprietor. The purchaser can therefore execute an effectual instrument of charge after the transfer to himself has been executed and before it is registered; and the two instruments (of transfer and charge) can be handed in together for registration. The difficulty of the transaction is how to secure that the mortgagee shall obtain the unregistered legal estate; as if that be conveyed to him before the registration of the transfer to the purchaser it will be extinguished by the effect of such transfer (h). It is therefore necessary that the purchaser, having taken a grant of the vendor's legal estate either in the instrument of transfer or by a separate assurance (i), shall execute an unregistered mortgage of the land to the mortgagee, containing all provisions proper on a mortgage of registered land in the second manner above described (k), and also a covenant by the purchaser that after he has been registered as proprietor of the land, he will grant it to the mortgagor, subject to redemption. The mortgage money is advanced on receiving this deed and the instrument of charge, together with the application for the necessary restriction (l), all duly executed by the purchaser (m): but after the registration (n) of the purchaser as proprietor of the land, he must execute a further deed conveying the legal estate to the mortgagee in pursuance of his covenant (o).

Sale followed by a mortgage of registered land.

(z) Above, p. 1126.

(a) See above, pp. 1131, 1132 & notes (s, u).

(b) Above, pp. 1061, nn. (q, r), 1073

(c) See above, pp. 1064, 1066. 1086, 1093 - 1095.

(d) Above, p. 1130.

{e) Above, p. 1075. (f) Above, pp. 1078, 1081. (g) Stat. 60 & 61 Vict. c. G5, s. 9 (6); Land Transfer Rules (1903), 104, 105

(h) Above, pp. 1073, 1074.

(i) Above, pp. 1077 & n. (c), 1091, 1095.

(k) Above, p. 1131.

(/) Above, p. 1131.

(m) It is thought that this may be safely clone, especially if (as above suggested, p. 1131) the mortgage deed contain a covenant by the purchaser to transfer the land to the mortgagee in case of the mortgagee's entry into possession, and the necessary restriction be entered in the register to prevent the purchaser from registering any transfer or charge without the mortgagee's consent.

(n) It is thought that this deed may be executed at any time after, but not before, the transfer to the purchaser ha9 been delivered for registration at the Office of Land Registry and the necessary entries consequent thereon have been settled; see above, pp. 1075,1078 It is thought that the mortgagee cannot safely accept an undated deed of conveyance executed by the mortgagor, before his registration, as an escrow, and given to the mortgagee's solicitor to be delivered and dated after the registration. In the first place, the mortgagor has not, at the time of the execution of the deed as an escrow, the power and ability to make the necessary conveyance; for he has not then the legal estate, which he desires to assure - viz., that which will be vested in him on execution of the statutory power; see Butler & Baker's case, 3 Rep. 35 b; Shepp. Touch. 59; above, p. 1074 & n. (r). And it is well established that at law a man cannot make a valid conveyance of any property, which he has not, but merely expects to have; see Wms. Real Prop. 68, n. (l), 19th ed.; Wms. Pers. Prop. 91, loth ed., and authorities there cited; Re Ellenborough, 1903, 1 Ch. 697. It is thought that this rule (and, we may add, the rule prohibiting the grant of a freehold estate to commence at a future time; Savill Bros. Ld. v. Bethell, 1902, 2 Ch. 523, 540) cannot be evaded by such a simple contrivance as to execute a deed as an escrow, to be finally delivered when the expected estate shall have vested in the grantor or when the grant is desired to commence. Secondly, it is thought that after final delivery the deed would relate back to the time of its execution as an escrow; Shepp. Touch. 59; Edmunds v. Edmunds, 1904, P. 362, 374. And it is well settled that a deed takes effect from the time of its delivery, and not from its date, and that a party to the deed is not estopped by the date written therein from showing that it was delivered at some other time; Plowd. 491; Goddard's case, 2 Rep. 4; Clayton"s case, 5 Rep. 1; Oshey v. Micks, Cro. Jac. 263; Co. Litt. 46 b; Shepp. Touch. 72; Stone v. Bale, 3 Lev. 348; Doe d. Whatley v. Telling, 2 East, 257; Hall v. Cazenove, 4: East, 477; Steele v. Mart, 4 B. & C. 272; Browne v. Burton, 17 L. J. Q. B. 49; Jayne v. Hughes, 10 Ex. 430. Thirdly, it is thought that, although the insertion of the date of a deed after its execution is in general an immaterial alteration not sufficient to avoid the deed (Crediton v. Exeter, 1905, 2 Ch. 455), in the case under consideration the date is material, and to insert it after execution as an escrow might have the Execution of the deed of confirmation as an escrow.