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: (Rule 111.) Where instruments or applications are delivered at the Relation back registry with the proper Inland Revenue and Land Registry fee of registration stamps affixed thereto or impressed thereon (y), accompanied when to the time of necessary by the land certificate or certificate of charge (z), they shall the applicadelivery of be examined by an officer of the registry, and if certified by him as tion therefor. capable of registration, they shall be entered in a book (a) in the order in which they are delivered. The registration shall then be completed as of the day on which, and, in the absence of direction or inference to the contrary in or from the instruments or applications themselves, of the priority in which the instruments or applications were delivered. (Rule 118.) On the delivery for registration of an instrument or Notice of application, notice of the fact shall be sent to the person by whom it application purports to be executed, and, where the instrument purports to be a for registration to be conveyance or transfer in exercise of a power of sale contained either in a mortgage prior to the registration of the land or in a registered charge, notice of the fact shall also be sent to the proprietor of the land and to the proprietors of all subsequent charges. The notice shall state that the person to whom it is addressed will have three clear days from the posting of the notice within which to lodge objections. In the absence of any objection the registration may be completed at the expiration of the limited period. sent to certain persons. (Rule 117.) The registered proprietor of land or of a charge or his Priority solicitor, or with his consent in writing any other person or his notice. (x) Above, pp. 373, 509, 645, 646, 648. (y) See stat. 38 & 39 Vict. c. 87, s. 83 (7); Land Transfer Rules (1903), 123-125. (z) See above, p. 1062, n. (u). Provisional registration. solicitor, may lodge at the registry a notice (to be called a priority notice) in Form 19 in the First Schedule hereto reserving priority for a specified instrument or for a specified application intended to be subsequently made. The notice shall be accompanied by the land certificate or certificate of charge and shall be entered on the register and the certificate shall be endorsed accordingly. If within fourteen days from the lodging of the notice or such further time as the registrar shall think fit, the specified instrument or application is delivered for registration, it shall be registered with priority to any other instrument or application affecting the same land or charge which may have been delivered in the meantime. On the expiration of the period fixed, as aforesaid, for the operation of the notice, it may be cancelled. (Rule 157.) (1) Upon the joint application in writing of the registered proprietor and of an intended purchaser of part of the land comprised in a title, accompanied by an instrument of transfer (executed as or as in the nature of an escrow by all necessary parties), the intended transferee may be provisionally registered as proprietor; and in such case a land certificate may be issued to the transferor showing the intended transferee as registered proprietor of the land mentioned in the instrument of transfer; but nevertheless during a period to be specified in the application (but not exceeding twenty-one days from the date thereof) such registration shall, subject as here inafter provided, be deemed to be provisional only, and liable to cancellation under this rule; and unless completed as hereinafter provided such registration shall not be deemed to be registration within the meaning of sections 29 and 34 of the Act of 1875. (2) At any time before the registration has been completed, the provisional registration may be cancelled and the instrument of transfer returned to the transferor upon (i) the delivery of the land certificate to the registrar to be cancelled, and (ii) the production of a statutory declaration by the transferor to the effect that any consideration expressed to be paid or given for the transfer has not been paid or given, and (iii) the service of such notices as the registrar shall think fit. (3) If such registration shall not have been cancelled then on the expiration of the period specified in the application (or sooner on the production of the land certificate accompanied by the written application of the transferee or any person claiming under him for the registration to be immediately completed) the registration shall be completed and take effect as of the day on which and of the priority in which the application for provisional registration was delivered to the registry, and the instrument of transfer shall be deemed to have taken effect accordingly. (4) Pending the completion of the registration the registrar shall make such provisional entries in the books kept in the registry as he shall deem necessary. entitled to the execution Now it is thought that, under an open contract for Vendor not the sale of registered land, the vendor can have no right demand payto require the purchaser to pay the price at the office of ment against the vendor's solicitors on receipt of an instrument of of a registered transfer executed by the vendor (b). Such an instru- transfer. ment, unless it contain words sufficiently evidencing an intention to grant the estate, as well as to execute the statutory power, vests no estate at all in the purchaser prior to his registration as proprietor of the land (c). And if between the time of payment of the purchase money and that of the delivery of his transfer for registration, application were made at the registry for the registration of some other disposition by the vendor, capable of registration, or of an inhibition or a restriction, it appears that the transfer to the purchaser would be postponed to the result of those prior applications. And this would equally be the case, although the transfer had contained a conveyance of the vendor's legal estate to the purchaser. It is thought that the vendor cannot require the purchaser to run these risks, however improbable it may be that he will incur any actual harm in the short interval between payment and registration. There appear, however, to be four ways (b) It is submitted that the case is not parallel to that of the conveyance of land in a register county; see above, pp. 373, n. (x), 645, 646. (e) It is submitted that the execution of an instrument of transfer is a mere step in the execution of the statutory power; and that, applying the ordinary rules with regard to the construction of instruments, which may operate either as an execution of a power or as a grant of an estate (see above, p. 471, n. (a)), an instrument of transfer in Form No. 20 in the First Schedule to the Land Transfer Rules, 1903, merely exhibits an intention to execute the statutory power, and does not show any intention of hardly be conclusive. Where it Completion at the Office of Land Registry. Priority notice. Provisional registration. in which the risk of adverse entries in the register, made subsequently to payment, may be avoided. First, the purchase may be completed at the Office of Land Registry, the purchaser ascertaining there that no entries or applications adverse to his interest have been made up to the last moment, and paying his purchase money when the draft entries to be made in the register have been approved by the proper officer and the necessary documents are handed over to the clerk in charge of the Application Book (d). If this be done, it appears that his registration as proprietor, when completed, will relate back to the time of handing over the documents, that is, the time of payment (e). Secondly, the vendor may obtain a priority notice in favour of the transfer to the purchaser; in which case it appears that the purchaser may safely pay his purchase money, away from the Land Registry, against delivery to him of an instrument of transfer duly executed by the vendor and all other necessary parties, if any, and of the land certificate endorsed with the priority notice, provided that fourteen days from the lodging of the notice have not expired. In such case it appears that the registration, when completed, will relate back to the time of lodging the notice (ƒ). Thirdly, where the land sold was part only of that comprised in the vendor's title, the vendor and purchaser together may obtain provisional registration of the purchaser as proprietor of the land; when the purchaser may, it seems, safely pay the price on delivery to him of the land certificate made out in his name, provided that twenty-one days from the date thereof have not expired. If he obtain this, he can procure his own registration to be immediately completed, when it will (d) See Brickdale & Sheldon's Land Transfer Acts, 402, 2nd ed. (e) Above, p. 1075. relate back to the time of the application for provi- Complete registration sional registration (g). Fourthly, the transfer may be before registered (not provisionally) and the purchase money payment. not paid over to the vendor until the land certificate. made out in the purchaser's name has been issued. payment. Now the last of these methods of completion is As to requiring comobviously that most favourable to the purchaser; for he plete regiswould not part with his purchase money until after the tration before legal estate had been vested in him by the complete execution of the statutory power, and it had been ascertained that no objection to the registration of his transfer could be lodged by any person to whom notice of his application is required to be sent (h). But such registration would irrevocably vest the purchased estate in the buyer before the land certificate in his name was issued (h); and it appears that, in the ordinary course of procedure, the land certificate would be issued to the purchaser. It is thought that he has no right to require this to be done before payment (k). It seems, therefore, that this method of completion cannot be that contemplated by an open contract (7). Nor can it be implied in such a contract that the purchaser shall, on the execution or on delivery for registration of the instrument of transfer, deposit the purchase money with a stakeholder, to be paid over to the vendor on the issue to the purchaser of the land certificate made out in his name (m). (g) Above, p. 1076. (h) See above, p. 1075. (7) It is thought that the purchaser has no right to claim to complete in this manner, merely because of the notices required to be sent out of his application for registration and of the time given for lodging objections thereunder; above, p. 1075. As to notice to the transferor, that appears to be simply a precaution against for gery; and the risk of forgery is (m) See above, pp. 22, 509. |