Date of a deed.

Somewhat similar difficulties arise in the case of a sale of unregistered land situate in a compulsory registration district, when a mortgage is to he made to secure part of the purchase money; as the legal estate does not pass under a conveyance completing such a sale unless or until the purchaser is registered as proprietor of the land (p). Various devices have been suggested to meet these difficulties (q): but it is thought that the plan most favourable for the mortgagee is to take a conveyance of the land sold direct from the vendor, with the concurrence of any other necessary parties, by way of mortgage to secure the proposed loan, the mortgage money being paid to the vendor and the right of redemption reserved to the vendor (r), his heirs and assigns, but effect of avoiding the deed; see Davidson v. Cooper, 13 M. & W. 343, 352; Suffell v. Bank of England, 9 Q. B. D. 555, 559, 571; Ellesmere Brewery Co. v. Cooper, 1896, 1 Q. B. 75; Re Howgate & Osborn's Con-tract, 1902, 1 Ch. 451, 454; and consider Societé Générale de Paris v. Walker, 11 App. Cas. 20. The mortgagor, however, may well give a power of attorney to the mortgagee authorizing him to execute the necessary deed of conveyance, after the mortgagor's registration, in the mortgagor's name; and such a power of attorney is usually inserted in the mortgage deed; see 2 Key & Elph. Prec. Conv. 921, 928, 8th ed.

Sale and mortgage of unregistered, laud situate in compulsory registration district.

(o) It is thought that, when registered land is let on lease subject to covenants by the lessee and the usual condition of reentry, and the freehold reversion is transferred by registered transfer, the transferee will be an assignee of the reversion within the meaning or the equity of stat. 32 Hen. VIII. c. 34, and so enabled to enforce the lessee's covenants and the condition of reentry; for although he appears not to take the transferor's estate but to come in by a new title (above, p. 1074 & n. (r) ), he claims by the act of the transferor; see Co. Litt. 215; Bac.

Abr. Covenant (E. 6); Lincoln College's case, 3 Rep. 58, 62 b; Williamson v. Hancock, 1 Mod. 192, 193; Glover v. Cope, 3 Lev. 326, Skinner, 305, 307; Whitton v. Peacock, 3 My. & K. 325.

(p) Above, pp. 369 sq.

(q) 2 Key & Elph. Prec. Conv. 925 - 930, 8th ed.; Prideaux, Prec. Conv. ii. 803, 19th ed.; Encyclopaedia of Forms, viii. 523, n.

(r) It is thought that, if the right of redemption were reserved to the purchaser, the legal estate would not pass to the mortgagee; see above, pp. 369, 370.

A Proviso being inserted that the vendor shall not he personally liable to repay the money, and the purchaser entering into the usual covenants for payment of the principal money advanced and the interest thereon. It is thought that such a deed will certainly pass the legal estate to the mortgagee (s). The vendor may then convey the equity of redemption to the purchaser. If after this it be desired to register the land, the mortgagee will occupy the position of an incumbrancer prior to first registration (t); and it is thought that his legal estate and interest under his incumbrance will remain paramount to and unaffected by the registration of the purchaser as proprietor of the land (u), and that he will be enabled to register himself as proprietor of the incumbrance without losing these advantages (x). There is no disadvantage in this plan to the purchaser, if he is to be registered with an absolute title as proprietor of the land; for such registration will have the effect of extinguishing any outstanding equitable interests adverse to his own. If however the purchaser is to be registered with a possessory title or is not to be registered, he will, as he has had a conveyance of a mere equitable estate, take subject to any prior equitable interests which may have affected the land sold in the vendor's hands and have not been duly assured to the mortgagee or to himself (y). But it appears that the purchaser must run this risk if the parties propose to evade the necessity for registration. If the above plan cannot be adopted, as where the vendor is selling under a trust for (z) or power of sale or under the power of sale given by the Settled Land Acts, or has stipulated that the purchaser shall be registered, the like procedure must be followed as in the case of a mortgage of land already registered (a); that is to say, after the conveyance of the laud sold to the purchaser, he must execute an unregistered mortgage thereof to the mortgagee, covenanting to execute (after his registration) to the mortgagee a transfer of the land (subject to redemption) or a registered charge thereon coupled with a conveyance of the legal estate, according to the form of security agreed to be adopted. And such transfer, or charge and conveyance, must be executed accordingly (b). But in this case, unless payment of the purchase money can be delayed until the registration of the purchaser's title is ready for completion (c), the mortgagee is exposed to the dangers involved in advancing his money against the conveyance of a mere equitable estate (d). He may be willing to run this risk if he be making the loan on his own account: but he can scarcely be advised to take it where he is a trustee proposing to invest the trust money on the mortgage.

(s) See above, pp. 369 & n. (i), 370.

(t) Above,pp. 1066 sq., 1117 sq.

(u) Above, pp. 1061, nn. (p, q, r), 1068, 1073, 1117 sq.

(x) Above, p. 1067.

(y) Above, p. 419 & n. (r).

(s) It is suggested that, where the vendor holds the legal estate on trust for sale, as also where he is absolute owner, the following course may be taken: -Let the sale be completed by a conveyance to the purchaser in common form. This will leave the legal estate in the vendor on trust for the purchaser. Then let the vendor and purchaser together mortgage the land to the mortgagee, the vendor concurring as a bare trustee of the legal estate at the purchaser's direction, and the right of redemption being reserved to the purchaser, his heirs and assigns. It is submitted that this deed would be a pure mortgage and would not be "a conveyance executed on sale, by virtue whereof there is conferred or completed a title under which an application may be made for registration as first proprietor of land"; see above, pp. 369, n. (i), 370. The previous conveyance to the purchaser would have already conferred on him a complete title to be registered as first proprietor of the land; above, p. 370, n. (m). It is thought that, if after this the purchaser's title should be registered, the mortgagee would be in the position of an incumbrancer prior to first registration; above, p. 1136.