In 1865 (e) was first enacted the provision which is now R.S.O. 1914, c. 124, s. 72, as follows:

72. Priority of registration shall prevail unless before the prior registration there has been actual notice of the prior instrument by the person claiming under the prior registration.

The word "person" has replaced the word "party" as contained in the original statute. It means one who is "party" to the registered instrument under which priority is claimed over a prior unregistered instrument, and does not include any person who merely claims under the instrument through subsequent instruments. Therefore where a third mortgagee registered his mortgage before the registration of the second mortgage, it was held that an assignee of the third mortgage whose assignment was registered subsequent to the registration of the second mortgage, was not "the person claiming under the prior registration" within the meaning of s. 72 (f).

(b) Lawrie v. Rathbun, 1876, 38 U.C.R. 255.

(c) Lawrie v. Rathbun, supra; Green v. Ponton, 1885, 8 O.R. 471; Jost v. McCuish, 1893, 25 N.S.R. 519; cf. Siemens v. Dirks, 1913, 23 M.R. 581, 14 D.L.R. 149, as to registrar's omission to endorse a certificate of registration.

(d) 56 V. c. 21, s. 93.

(e) 29 V. c. 24, s. 65, re-enacted by 31 V. c. 20, s. 67. Prior to 1865 it was only in a court of equity that relief could be given against a person who claimed by virtue of prior registration but who had actual notice of an earlier instrument. Millar v. Smith, 1873, 23 U.C.C.P. 47. Before the creation' of the Court of Chancery in 1837 there was no court at all which could give relief in such a case. Doe dem. Pell v. Mitchener, 1831, Draper 471.

If s. 72 is strictly read, it means perhaps that a party-claiming under an instrument who takes without notice and for value but who before registering his instrument receives notice of an earlier unregistered instrument, takes subject to it. In Millar v. Smith (g) there are some dicta that this is the effect of the section, but in that case the subsequent purchaser had actual notice of a prior unregistered instrument before the execution of the subsequent conveyance, and the decision was merely that the predecessor of s. 72 enabled a court of law to give equitable relief against a person taking with actual notice and that there should be read into the predecessor of s. 71 the words " without actual notice" (h). In Peebles v. Hyslop (i) the same question was discussed as to the effect of notice of an earlier instrument received by a subsequent purchaser after delivery of the subsequent deed but before registration; and the opinion was expressed that relief might be given to a purchaser in such a case notwithstanding the wording of s. 72. It was not, however, necessary to decide the question (j).

(f) Heney v. Kerr, 1914, 30 O.L.R. 506, 19 D.L.R. 597. In fact the third mortgagee had actual notice of the second mortgage, but the decision, it would seem, would have been the same even if the third mortgagee had taken without notice. He would have had priority over the second mortgagee by the reason of the prior registration of his mortgage, and his assignee would have had the same priority if he likewise had taken without notice and the assignment had been registered before the registration of the second mortgage. The assignee was, however, postponed not only because his assignment was registered after the registration of the second mortgage but because actual notice to him was also proved.

(g) 1873, 23 U.C.C.P. 47; cf. Peterkin v. McFarlane, 1881, 9 O.A.R. 429, at p. 465, S.C. sub nom. Rose v. Peterkin, 1885, 13 Can. S.C.R. 677, at p. 710.

(h) As pointed out above these words were inserted by statute in 1873. See Sec. 72, supra.

(i) 1914, 30 O.L.R. 511, 19 D.L.R. 654.

Actual notice in the statute means knowledge, not presumed as in the case of constructive notice, but shown to be actually brought home to the party to be charged with it, either by proof of his own admission or by the evidence of witnesses who are able to establish that the very fact of which notice is to be established, not merely something which would have led to the discovery of the fact if an enquiry had been pursued, had been brought to his knowledge (k). The mere fact that the grantee under a registered instrument was aware that a person other than his grantor was in possession is not actual notice of such person's adverse claim (I).