This section is from the book "A Treatise On The Law Of Vendor And Purchaser Of Real Estate And Chattels Real", by T. Cyprian Williams. Also available from Amazon: A treatise on the law of vendor and purchaser of real estate and chattels real.
Production of the land certificate.
Charge by deposit of the land certificate.
(z) See above, pp. 130 - 135, 152.
(y) Above, p. 1062, & n. (u).
(z) Above, p. 1065.
(a) See stat. 60 & 61 Vict. c. 65, s. 8 (4).
(b) See Land Transfer Rules (1903), 243 - 251; above, p. 1070.
(c) See Land Transfer Rules (1903), 250; above, p. 1070.
Besides the estates and interests in registered land which will not be extinguished by a registered transfer, but of which the existence will be disclosed by the register, or should be disclosed by the vendor's declaration as to things declared not to be incumbrances (f), it is important to observe that registered land may be subject to all kinds of estates and interests, legal as well . as equitable, which have been created by unregistered assurances or acts, and of which the existence will not be disclosed by the register. This is owing to the fact that under the Land Transfer Act, 1875 (g), subject to the maintenance of the estate and right of the registered proprietor, any person, whether the registered proprietor or not of any registered land, having a sufficient estate or interest in such land, may create estates, rights, interests and equities in the same manner as he might do if the land were not registered. Such estates, interests, rights or equities, may or may not be guarded by a notice, caution, inhibition or restriction (h) placed on the register by the person entitled thereto. Now it appears that, in the absence of special stipulation, a purchaser of registered land has no right to require an abstract or production of any instrument, by which the registered proprietor of land has created any estates or interests of this kind (i), except only of documents creating interests which are by the Acts declared not to be incumbrances (k). The sole protection of the purchaser against estates or interests so created, whether legal or equitable, lies, therefore, in the effect given by the statute to a registered transfer of the land made for valuable consideration by the registered proprietor thereof (l), coupled with the enactment that neither the registrar nor any person dealing with registered land or a charge shall be affected with notice of a trust, express, implied or constructive (m). Now such a transfer, when registered, of freehold land, confers on the transferee an estate in fee simple in the land free from all estates and interests whatsoever, except (1) registered incumbrances, (2) interests by the Acts declared not to be incumbrances (n), and (3) where the transferor was registered with a qualified or a possessory title only, such rights or interests as are not affected by such registration respectively; and similar registered transfers of leasehold land have a like effect (o). It appears, therefore, that if the registered proprietor of registered land make any unregistered disposition either of the legal or of the equitable estate therein, all estates or interests created by such disposition (except those declared not to be incumbrances) will be extinguished if he subsequently execute a transfer thereof for valuable consideration, and the same be duly registered. It follows that the assurance to be made by a vendor to a purchaser of registered land is not really a conveyance of the vendor's own estate, but is essentially the execution of a statutory power (p), resembling that conferred by the Settled Land Act, 1882 (q), and enabling the vendor to transfer an estate which is not or may not be his own (r). It should, however, be noted that a transfer for valuable consideration does not have this effect until it has been completed by registration of the transferee as proprietor of the land. Prior to that time, the transferor is to be deemed to remain the proprietor of the land (s). This brings us to one of the most troublesome questions raised by the Acts: At what time and against what conveyance is a purchaser of registered land under an open contract bound to pay his purchase money?
Unregistered estates and interests in registered land.
(d) See below, pp. 1081 sq.
(e) The case is parallel to that of an equitable mortgagee by deposit of title deeds allowing the deeds to be handed over to a purchaser or subsequent mortgagee from the mortgagor; see Perry Herrick v. Attwood, 2 De G. & J. 21; Briggs v. Jones, L. R. 10 Eq. 92; Brocklesby v. Temperance, etc.
Bdg. Socy., 1895, A. C. 173; Rimmer v. Webster, 1902, 2 Ch. 1G3.
(f) Above, pp. 1059, 1064.
(g) Stat. 38 & 39 Vict. c. 87, s. 49; see Capital & Counties Bank, Id. v. Rhodes, 1903, 1 Ch. 631; Wms. Real Prop. 628, 648, 19th ed.
Purchaser not entitled to an abstract of documents creating unregistered estates, except as to matters declared not to be incumbrances.
(h) Above, p. 1070.
(i) Above, pp. 1059 sq.
(k) Above, pp. 1059, 1064,1065.
(l) Stat. 38 & 39 Vict. c. 87, ss. 30 - 32, 35; Land Transfer Rules (1903), 110 - 142.
(m) Stat. 60 & 61 Vict. c. 65, First Schedule, amending sect. 83 (1) of the Land Transfer Act, 1875.
(n) Above, p. 1059, n. (o).
(o) Above, p. 1061, nn. (p, q, r).
Extinguishment of unregistered estates by a registered transfer for value.
At what time is a purchaser of registered land bound to pay the price under an open contract?
The time for completion is of course when the vendor has shown such a title as the purchaser is bound to accept (t). When this time has arrived, the parties are bound to perform their respective duties of conveyance and payment (u). But as a purchaser of registered land depends so entirely for his protection on the effect of the statutory power of transfer given to the registered proprietor, it seems obvious that he cannot safely pay his purchase money until that power is completely executed; and by the general law of sale of land he is not bound to part with the price, except against complete conveyance to himself of the whole estate purchased (x). This takes place, as we have seen, when the transfer is completed by his registration as proprietor of the land: but owing to the course of procedure laid down in the Land Transfer Rules, 1903, it is impossible for payment of the price and completion of the registration to be exactly simultaneous. The one must either precede or follow the other. In this respect the most important rules are the following: Time for completion.
 
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