ance of the vendor's estate should be contained in a deed separate from the instrument of transfer, the appropriate covenants for title being included therein. instrument of matters transferee's With respect to the question of inserting in an in- As to instrument of transfer any other provisions than those serting in an necessary to exercise the statutory power of transfer (o), transfer the conveyancer must recollect that as a rule all docu- extraneous ments (including such instruments) on which any entry to the in the register is founded are to be retained in the registration. Land Registry, and are not to be taken away therefrom except under a written order of the registrar or an order of the Court (p). And the principle of the system of registration of title introduced by the Land Transfer Acts appears to be that the entries in the register, when made, supersede the instruments on which the entries are founded (2). Office copies of such documents may be issued (r), but are not made evidence by the Acts or Rules (s). It is thought, therefore, that an instrument of transfer should as a rule be confined to such provisions as will confer on the transferee the right to have the required entry in the register made in his favour (†). If a contract for the sale of registered land contain any other stipulations than those necessary to secure the purchaser's registration as proprietor of the land, effect is annexed to any certificate it (t) A conveyance of the trans- Receipt clause should be inserted should be given to those stipulations by a separate deed which the purchaser can retain in his own custody, ready to be produced whenever necessary in support of his rights, without any application being made to the registrar or the Court. Thus, where the vendor of registered land gives any covenants for title or against incumbrances (u), such covenants should be contained in a separate deed, and not in the instrument of transfer (x). The form of instrument of transfer given in the Land Transfer Rules, 1903 (y), does not show to whom or by in the instru- whom the consideration money is paid, nor does it ment of transfer. Stamps on sale of registered land. contain any receipt for the payment made. Care should be taken in adapting this form to practical use to amend it in these particulars, especially as regards the receipt for payment of the purchase money, in default of which the purchaser would not be justified in paying the money to the vendor's solicitor producing the instrument duly executed, except by virtue of an express authority in that behalf properly conferred (z). The Land Transfer Act, 1875 (a), provides that, previously to registering any disposition of land, it shall be the duty of the registrar to ascertain that all such stamp duties have been satisfied as would be payable if the disposition to be registered had been an unregistered disposition. And by the Land Transfer Rules (1903), No. 123, when an application or instrument capable of registration is made or executed for the sole purpose of carrying out on the register a transaction already effected by a deed or other instrument not on the register, the Inland Revenue stamp on the transaction shall be affixed to or impressed on the last mentioned deed or instrument, and the registered instrument shall (u) Above, pp. 1062, 1093-1095. (x) Above, p. 1095. (y) First Schedule, Form 20. (z) See above, pp. 651-656. (a) Stat. 38 & 39 Vict. c. 87, 8. 83 (7). bear no stamp duty; provided that the stamped instrument shall before the completion of the registration be produced to an officer of the registry, to show that all duty payable in respect of the transaction has been paid. If therefore a sale of registered land is to be completed by an instrument of transfer alone (b) duly registered, such instrument must be stamped according to the law regulating the stamping of conveyances on sale of unregistered land (c). But in those cases where the instrument of transfer is accompanied by an unregistered assurance to the purchaser of the land sold (d), that assurance must be duly stamped as a conveyance on sale, and the instrument of transfer will then require no stamp. Besides the proper Inland Land Revenue stamps, instruments or applications delivered Registry for registration at the Land Registry must bear the proper Land Registry fee stamps (e). fee stamps. of the title It is thought that, on the sale of registered land, the Purchaser of registered purchaser is equally entitled, as in the case of unregis- land entitled tered land (f), to have all documents of title, which to delivery relate solely to the purchased land, delivered over to him deeds. on completion. And this appears to be the case, notwithstanding that the vendor be registered with an absolute title, so that the purchaser could not call for any abstract or for production of these documents (g). So also documents of this kind dealing with registered incumbrances prior to first registration, which are discharged on completion of the sale, should be handed over to the purchaser, whether the proprietorship of such incumbrances were registered or not (h). But the purchaser's right (b) Above, p. 1091. (c) Above, pp. 617-625. (d) Above, pp. 1092-1095. (e) See Land Transfer Rules (1903), 111; Land Transfer Fee Order, 1903, r. 3. (f) Above, p. 602. (9) Above, p. 1059. It may be W.-II. mentioned here that, on the com- 28 Registration or possessory title does not make a good root of title. Sale of registered leaseholds. to require any statutory acknowledgment or undertaking with respect to any document of title, which may lawfully be withheld from him, appears to be limited to such documents as are necessary to make a good title according to the contract, this being the rule applicable on the sale of unregistered land (i). Here it may be observed that, owing to the limited with qualified effect given to the first registration of land with a qualified or possessory title (k), such registration can never form a good root of title (7); so that, as a rule, a purchaser under an open contract of land so registered will always be entitled to call for the title prior to registration. But where registered leasehold land (m) is sold as such under an open contract, it appears that the purchaser has no more right to call for the lessor's title than if the land were not registered (n); so that, if the land be registered with a good leasehold title (0), the purchaser will be precluded from inquiring into any other title than that registered (p). It appears however that any registered leasehold land, which is held by underlease, must be so described in the contract, or by underlease. the purchaser will be entitled to object to the title (q). And it should be particularly noted that a registered transfer of leasehold land vests in the transferee the possession of the land comprised in the registered lease for all the leasehold estate therein described, but subject (amongst other things ()) to all implied and express Where held (i) Above, p. 606. (k) Above, p. 1061, n. (q, r). (m) See above, p. 371, and (n) Above, pp. 80-82, 1059 1061. (0) Above, p. 1061, n. (g). (9) Above, pp. 81, n. (d), 351. trary is expressed on the register, such liabilities, rights and interests as affect the leasehold estate and are by the Acts declared not to be incumbrances in the case of registered freehold land; and (3) estates, rights or interests exempted from the effect of registration with a qualified, good leasehold or possessory title; see above, pp. 1058, n. (c), 1059, 1061, n. (q, r), 1064-1066, 1073, 1074, 1086, and next note. an abstract duction of covenants, obligations and liabilities incident to such leasehold estate (s). And such covenants, obligations and liabilities do not appear on the register, except only that the existence of a prohibition against alienation without licence should be found noted thereon. A Purchaser purchaser of registered leasehold land must therefore must require call for an abstract and production of the lease under and prowhich the land sold is held, in order to ascertain to the lease. what covenants, obligations and liabilities he will become subject. And it is submitted that he is necessarily entitled to demand such abstract and production under an open contract, notwithstanding the terms of sect. 16 of the Land Transfer Act, 1897, above quoted (t); for he does not require the same as evidence of the vendor's title, but as evidence of matters adverse thereto and excluded from the effect of registration; and he would certainly be entitled to such evidence of these matters if the land were not registered. At the same time, a purchaser of registered leasehold land by private contract is advised to place his rights in this respect beyond doubt by special stipulation. If the covenants or con- Unusually ditions in the lease should be unusually onerous or stringent, it is thought that the purchaser would be entitled, under an open contract, to object to the title, as upon a sale of unregistered land (u). And generally, in all other respects, save as to proof of title and assurance by registered transfer, contracts for sale of registered leasehold land are governed by the same rules as are applicable in the case of unregistered leaseholds (x). By the Land Transfer Rules, 1903, No. 62, on the Registered registration of any leasehold land held under a lease subject to a containing a prohibition against alienation without restriction on licence, all estates, rights, interests, powers and remedies without the (t) Above, p. 1059. onerous COVenants. leaseholds alienation lessor's (s) Stat. 38 & 39 Vict. c. 87, 88. 13, 35, 38; Land Transfer Rules (1903), 55-59, 140 142. |