ment. The puraser ma mnly seam this right in fire vis. Either the registered proprietor of the Landi must at the vendor's request exemte & registered transfer to the panbaser: in vinh use the phaser most of course ascertain that the proprietor's title is m bered or that 1 hembrancers viber in the master y Or the vendor must proere himself to be registered as proprietor of the immbrance, der vilch be is sell ing, when be will wine the state ry power to ransfer and will the land wil in exervise of his power of sale be enabled to exervise the same in the pan haser's favour. Or proceedings must be taken mnder the Land Transfer Rules 1900, No. 151, to procure the purchaser's registration as proprietor of the land. It is thought that the purchaser is entitled, in the way or another, to have the land sold transferred into his own registered proprietorship; and he should insist on obtaining this. If the vendor procure a transfer from the registered proprietor and a other necessary parties, or procure a sale by a mortrarse with a title puramcunt & the title registered and the registered proprietor refuses % execute & transfer, or his execution of a transfer cannot be ebcamed, or can only be obtained after modne delay or expense, the registrar may, after due notice under these rules to each proprietor, and on production of the land certificate, and such evidence as he may deem suficient, make such entry in or correction of the register as under the circumstances he shall deem fit. And by r. 152, on a disposition by a mortgagee or other person under or by virtue of any estate, right, interest or power not affected by the registration, or entered as an incumbrance prior to registration, the registrar may dispense with the production of the land certificate; see above, p. 1062, n. (e). himself to be registered as proprietor of the incumbrance and then transfer to the purchaser, the purchase money may be paid, after a priority notice has been obtained in favour of the transfer to the purchaser, on the execution of the unregistered assurance and the instrument of transfer to the purchaser and on delivery of the land certificate (b), or, where the vendor has been registered as proprietor of the incumbrance, of the certificate of incumbrance (c), with the priority notice endorsed thereon (d). But if application be made under rule 151 to have the purchaser's name entered as proprietor of the land, it is thought that he should not part with the purchase money until the registrar has directed the required entry to be made; for until then the purchaser has no absolute right to be so registered, and he cannot be assured that the application will be granted (e). The Searches. question, what searches should be made, also depends on the manner in which the purchaser's registration is to be effected. If he is to obtain a transfer from the registered proprietor of the land and all other necessary parties (the incumbrance being expunged from the register (ƒ)), or from the vendor when registered as proprietor of the incumbrance under which the sale is made, it appears that the effect of the transfer, when registered, will relieve him from the necessity of making any searches outside the Office of Land Registry, except in Bankruptcy (g). But if application for the purchaser's registration is to be made under rule 151 (h), the same searches should be made as upon the sale of unregistered land (¿); for the purchaser's claim to be so registered must be proved to the registrar's satisfaction (h). (b) And also of the certificate of charge, if any chargee concur in the transfer. (c) Stat. 60 & 61 Vict. c. 65, s. 8 (4); above, p. 1065, n. (o). (d) Above, pp. 1074 sq., 1079 & n. (m), 1081. (e) Consider the terms of r. 151, (f) Above, p. 1067. Purchase from a mort Where the mortgage was made prior to the mortgagee selling gagor's registration as first proprietor with a possessory under a mort- title, the same principles apply, but the circumstances gage prior to registration are different. The title must be investigated and with a posses- searches made in the same manner as if the land sory title. were not registered (k). But it is doubtful whether the vendor is a vendor of registered land within the above mentioned enactment; for, although the land has been already registered with a possessory title, it seems that he can confer a title under which application may be made for first registration with an absolute title (7). It appears, however, that for this reason, if the land sold be situate in a district where registration is compulsory, the purchaser would not obtain the legal estate unless or until he were registered as the proprietor thereof (m). So that he would in any case be entitled to require the vendor to procure, at his expense, his registration as proprietor of the land (n). It appears that this can only be effected either by a transfer from the registered proprietor and his registered incumbrances, if any, or by an application under rule 151 (0). The sale should, it is thought, be completed by an unregistered assurance of the land to the purchaser, in which the vendor should covenant against incumbrances (p), followed by his registration as proprietor of the land to be obtained in either of the above mentioned ways; and the purchase money should be paid according to the mode of completion adopted (9). Purchase from an incumbrancer, prior to first Where the vendor is the registered proprietor of a registered incumbrance prior to first registration with an absolute title (r), it appears to lie in the purchaser's (k) Above, pp. 511 sq., 1066, (1) Above, pp. 1118, 1119. & n. (r). (0) Above, p. 1120 & n. (a). (p) Above, pp. 1093-1096. (9) Above, pp. 1074-1081. Above, p. 1067. proprietor of the incum brance. option whether he will investigate the title off the regis- registration, ter or not (s); but it seems that he must do so, in the registered as same manner as if the land were not registered (t), as he cannot ascertain from the entries in the register whether the power of sale has become exercisable or not (u). The vendor, being registered as the proprietor of the incumbrance under which he is selling, is enabled by the Land Transfer Acts (x) to give effect to his power of sale, when exercisable, by transferring the land, on which he has the registered incumbrance, in the same manner as if he were the registered proprietor thereof. What the purchaser has to ascertain, therefore, by investigation of the title and inspection of the register is that the vendor is the registered proprietor of a registered first charge prior to registration with an absolute title, that he has the power of sale, and that the power of sale has become exercisable (y). The purchaser need make no searches outside the Office of Land Registry, except in Bankruptcy (z). Completion should, it is thought, be effected by a separate assurance of the land, in which the vendor should covenant against incumbrances (a), together with a registered transfer from the vendor in exercise of his statutory power in that behalf; and the purchase money may be paid as above mentioned in discussing the proper mode of completing an open contract to purchase registered land (b). There will be no need to produce the land certificate to procure the purchaser's registration, but production of the certificate of incumbrance will be required (c). (s) Above, p. 1067. (t) Above, pp. 338 sq. (u) See Brickdale & Sheldon's Land Transfer Acts, 634, 2nd ed. (x) Above, p. 1120 & n. (z). By stat. 60 & 61 Vict. c. 65, s. 9 (1), a transfer of land made by the registered proprietor of a registered charge with power of sale shall operate as a conveyance in professed exercise of the power of (y) Above, pp. 338 sq. Stat. 60 & 61 Vict. c. 65, Purchase from a chargee registration. The sale of land under the power of sale conferred by a registered charge which has been created subsesubsequent to quently to the registration of the land, is similar to the last case, except that the circumstances admit of interests paramount to the charge; as where the title registered is absolute, but there are incumbrances prior to registration, or where the title registered is qualified or possessory. If there should be such interests outstanding, the title thereto must of course be proved, and they must be got in or discharged as above mentioned in case of the sale of registered land by the registered proprietor (d). Apart from such interests, as where the title registered is absolute and free from incumbrances prior to registration, it appears that the purchaser, under an open contract, would have no right to investigate the title off the register (e), or need to search outside the Office of Land Registry, except in Bankruptcy (f); but he would have to ascertain from the register that the vendor was the registered proprietor of a registered first charge with power of sale (g), and that at the time of registration of the charge the proprietor of the land was registered with an absolute title; and he would have to satisfy himself that the power of sale had become exercisable (). To make sure of this, he should inspect the instrument of charge, which is filed in the register, but of which a copy would be found in the certificate of charge (). As regards the estate which the vendor had power under the charge to sell, the sale would be completed by a registered transfer of the land sold from the vendor to (d) Above, pp. 1066, 1086, 1093. (g) The Land Transfer Act, instrument of charge is a deed, (h) Above, pp. 338 sq. |