registered Here it may be observed that the above-mentioned Effect of a enactment of the Land Transfer Act, 1897 (1), providing registered disposition that the register shall be rectified where a registered which if undisposition would if unregistered be absolutely void, would be void. appears to be very far-reaching in its effect, and to introduce into dealings with registered land an element of uncertainty against which a purchaser has no protection. Thus a purchaser of land from a vendor registered as proprietor with an absolute title is precluded from inquiring into the earlier title; he must accept the present entries in the register as conclusive evidence (m). If however the vendor had been so registered under a transfer which if unregistered would have been void (as from a corporation in excess of its powers or from trustees prohibited from selling without the Charity Commissioners' consent (n)), it appears that those entitled by virtue of the nullity of such transfer would have the right to have the register rectified; that is to say, they might insist that the vendor was not the lawful registered proprietor of land, and procure the removal of his name from the register. But if it can be so maintained that the vendor is not the registered proprietor of the land, it appears to follow that he cannot validly exercise the powers of disposition given to the registered proprietor, so as to extinguish outstanding interests. The transfer to the purchaser therefore, though duly registered, would appear not to vest in him an indefeasible estate in fee simple (o), but to give him only an estate voidable at the instance of those entitled to the rectification of the register. It is true that the purchaser would be entitled to an indemnity under the Land Transfer Act, 1897 (p); but, as was recognised in founding the jurisdiction to decree specific performance (1), pecuniary damages are not an adequate com (7) Above, p. 1113. (m) Above, p. 1059. (n) Above, pp. 1113, 1114. (0) Above, p. 1073. (p) Above, p. 1113 & n. (q). Protection of persons claiming under a transfer of a charge made by a proprietor entitled pensation for being deprived of land purchased with the expectation of an indefeasible title. Other instances of registered dispositions, which if unregistered would be absolutely void, are forged transfers (r), and transfers void for mistake ($) or for non-compliance with the statute regulating the assurance of land to charitable uses (t). It should be noted that, in the above respects, a person taking or deriving title under a registered transfer of a registered charge made by a registered proprietor, whose title was acquired under a void disposition, appears to stand in a more favourable position; as it is enacted in the Land Transfer Act, 1897 (u), under a void that a registered transferee for value of a charge and his successors in title shall not be affected by any irregularity or invalidity in the original charge itself, of which the transferee was not aware when it was transferred to him. But the like protection is not accorded to the original chargee himself, nor to persons claiming under a void transfer of a valid charge. Thus it has been decided that in the case of a forged transfer of a charge, the name of the person misled by the forgery must be removed from the register, but he is entitled to the indemnity provided by the Act (x). disposition. Undivided share in land; mines apart from surface. The title may be registered to an undivided share in land, or to mines and minerals severed from the surface, or to cellars, flats, or chambers, in the same manner as to the entirety (y). But we have seen (≈) that nothing in the Land Transfer Act, 1897, shall render compulsory the registration of the title to an undivided share in land, or to mines and minerals apart from the surface. This exemption, however, is not extended to cellars, flats, chambers, or similar hereditaments (a). and cus Copyholds cannot be registered as such under the Copyholds Land Transfer Acts; nor customary freeholds in any tomary case in which an admission or any act by the lord of freeholds. the manor is necessary to perfect the title of the tenant (b). But freeholds intermixed with and indistinguishable from copyholds or customary freeholds may be so registered: though in such case notice is to be entered on the register of the facts relating to the tenure of the land, and the tenure of that portion of the land, which is not freehold, will remain unaffected by the registration (c). We have seen that nothing in the Land Transfer Act, 1897, is to render compulsory the registration of the title to freeholds intermixed with and indistinguishable from lands of other tenure, or to corporeal hereditaments parcel of a manor and included in a sale of a manor as such (d). The title to a manor Manor ; or a seignory may be registered (e). seignory. The purchase of registered land from a mortgagee Purchase of registered exercising his power of sale is a matter demanding land from a special notice. A mortgagee of registered land may mortgagee exercising his occupy one of four different positions. First, his power of sale. mortgage may be a registered incumbrance, prior to first registration with an absolute title, whereof the proprietorship is not registered (f). Secondly, the mort (a) See stat. 60 & 61 Vict. c. 65, s. 24; above, p. 370. (b) Stat. 38 & 39 Vict. c. 87, s. 2. But if at any time land is found to have been registered with absolute or qualified title contrary to the provisions of this section, the registration shall not be annulled, but shall be deemed an error not capable of rectification under the Principal Act, and any person suffering loss thereby shall be indemnified accordingly; (c) Stat. 38 & 39 Vict. c. 87, (d) Above, p. 370 & n. (»). (e) Stat. 38 & 39 Vict. c. 87, s. 82; Land Transfer Rules (1903), 71; above, p. 1105. (f) Above, p. 1067. Purchase from an incumbrancer, prior to first not registered as proprietor of the incumbrance. gagor may have registered, after the mortgage, with a possessory title, when the mortgage will have been an estate, right or interest then subsisting as adverse to or in derogation of his title (g). Thirdly, the mortgage may be a registered incumbrance, prior to first registration with an absolute title, whereof the proprietorship is registered (h). And fourthly, the mortgage may have been made subsequently to the registration of the land (i). In the first of these cases all that has to be ascertained from the register is that the incumbrance is duly registered, as alleged, so as to remain paramount to the effect of first registration with an absolute title and of registered transfers of the land (). This done, the investigation of the title will be conducted in the same manner exactly as if the land were not registered (1); the same points being particularly attended to as on a purchase of unregistered land from a mortgagee exercising his power of sale (m). But the assurance of the land sold to the purchaser and the completion of the contract present some difficulty, owing to the fact that the land is registered in the proprietorship of the mortgagor, or his successor in estate, who presumably is no party to the contract. We will suppose that the purchaser is buying under an open contract and that the land sold is situated in a district where registration on sale is compulsory (n). As the vendor is selling an estate paramount to the title of the registered proprietor and entirely unaffected by the registration, it is at least questionable whether he is a vendor of registered land within the meaning of sect. 16 of the Land Transfer Act, 1897 (0) but it is submitted that he is, since the land (g) Above, p. 1061, n. (r). (i) Above, pp. 1067, 1069. 1073. (7) Above, pp. 1068, 1069. (0) Above, pp. 1059–1062. sold is in fact already registered, and the vendor cannot, by conveyance under his power of sale, confer a title under which an application can be made for registration as first proprietor of the land (p). If this suggestion be correct, the vendor will be bound, at the purchaser's request and at his own expense, and notwithstanding any stipulation to the contrary, either to procure the registration of himself as proprietor of the land, or of the incumbrance, under which he is selling, or to procure a transfer from the registered proprietor to the purchaser (q). And if the sale be not regulated by the above enactment, it is thought that, under an open contract, the vendor would nevertheless be bound to procure the purchaser's registration as proprietor of the land: otherwise, although it appears that the purchaser would obtain the legal estate (r), there would remain outstanding the registered proprietor's interest with the powers of disposition incident thereto (s). But in this event the purchaser would have to bear the expense of such registration, except that of any acts to be done for this purpose by the vendor himself or any other necessary party, such as the registered proprietor of the land (t). The sale should, it is thought, be completed by an unregistered assurance of the estate sold to the purchaser, in which the vendor should covenant against incumbrances (u), followed by the registration of the purchaser as proprietor of the land: but the purchaser should not pay the price until he has acquired a clear right to be registered as proprietor and is satisfied that (p) See stat. 60 & 61 Vict. c. 65, s. 20 (1, 2); above, pp. 369, 370. (2) Above, pp. 1061, 1062. (r) Because the vendor could not confer a title under which an application for first registration could be made; see above, n. (p); Cozens-Hardy, L. J., Capital and Counties Bank, Ld. v. Rhodes, 1903, 1 Ch. 631, 656, 657. (s) Under the general law of sale, it is the duty of the vendor of an unincumbered estate in fee simple to get in all outstanding interests, whether paramount to his own or not; see above, pp. 34, 130-134, 446, 539, n. (g), 542, 962, 963. (t) Above, pp. 372, 373, 645, 646, 1080, n. (0). (u) Above, pp. 1092, 1095. |