the purchaser; the vendor having a statutory authority, as registered proprietor of a registered charge, to transfer the land sold under his power of sale in the same manner as if he were the registered proprietor of the land (k). The purchase money may be paid on taking the precautions explained above (1); and production is required of the certificate of charge alone, and not of the land certificate (m). It is thought that the vendor could be required to give the usual mortgagee's covenant against incumbrances (); although, where an absolute title had been registered, the purchaser under an open contract would not be entitled to any covenants for title (o). This being so, it would appear more convenient to take the covenant against incumbrances by a separate deed, which the purchaser could retain in his own possession (p); and in this deed an assurance to the purchaser of all the vendor's estate and interest () in the land sold may also be inserted. Particular difficulties arise where a sale of registered Sale and land is to be followed by an immediate mortgage there- mortgage of registered of, the mortgagee advancing part of the purchase land. money() but to explain these it is necessary to say a few words about the form of a mortgage of registered land. registered The statutory charges on registered land, which were in- Remedies troduced by the Land Transfer Acts (s), appear to confer conferred by on the chargee fairly adequate remedies for the recovery charges on of the mortgage debt and interest by suing the mort (k) Stat. 38 & 39 Vict. c. 87, s. 27; see above, p. 1123, n. (x). (7) Above, pp. 1074-1081. (m) Stat. 60 & 61 Vict. c. 65, 8. 8 (4); above, p. 1065, n. (o). (n) Above, pp. 578, 1123. (0) Above, p. 1062. (p) See above, p. 1095. (9) See above, p. 1092. (r) Above, p. 552. (s) Stats. 38 & 39 Vict. c. 87, 88. 22-28; 60 & 61 Vict. c. 65, s. 9. registered land. gagor persons, by exercise of the power of sale (u) and by foraire but they are deficient in respect of the me's remedy by entry into possession. Where the cured proprietor of the land, who created the rat charge, had himself the legal estate, the real proprietor of the registered charge appears to have a ciri nterest in the land charged in the nature of on thereon for the principal money and interest chard and a legal right of entry into possession or receipt of the rents and profits of the land charged () : but he obtains no estate in the land, and the Land Transfer Acts do not expressly give to a registered charge the same or the like effect as they give to a registered transfer of the land (a). The result is that, although the chargee's rights of lien and entry appear to be clearly paramount to all subsequent registered or unregistered dispositions of the legal estate in the land (), it is not absolutely certain whether they take (t) Stat. 38 & 39 Vict. c. 87, 8. 23. As an office copy of the instrument of charge is now contained in the certificate of charge, and when so contained is made prima facie evidence of the instrument (above, p. 1095, n. (s) ), the chargee has in his own possession sufficient evidence for enforcing the covenant to pay implied in the charge. (u) Above, p. 1124 & n. (g). (x) Stat. 38 & 39 Vict. c. 87, 8. 26, enabling the chargee to enforce a foreclosure or sale of the land charged in the same manner in which he might enforce the same if the land had been transferred to him by way of mortgage. By the Land Transfer Rules (1903), 164, the chargee, on obtaining an order for foreclosure absolute, is entitled to be registered as proprietor of the land, subject to prior charges, if any. And it appears that he will thus obtain the like estate as if the land had been transferred to him for value by the person re gistered as proprietor thereof at the time of registration of the charge. 8. 22. (y) Stat. 38 & 39 Vict. c. 87, It is immaterial that no such interest was previously known to the English law of land; the authority of Parliament is supreme; and all Courts, of law as well as of equity, are bound to give effect to the charge; see Lord Advocate v. Moray, 1905, A. C. 531, 539. (z) Stat. 38 & 39 Vict. c. 87, 8. 25. (a) Above, pp. 1058, n. (c), 1061, nn. (p, q, r), 1073. (b) The opinion has been expressed that a registered charge "does not convey any legal estate so as to enable the mortgagee to maintain an action for the recovery of the land"; Wolstenholme's Forms and Precedents, 249, n. (a), 6th ed., citing Allen v. Woods, 68 L. T. 143. That case however merely decides that, on ejectment by one claiming priority over previous unregistered dispositions of the legal estate, or if they do, whether the right of entry can be asserted without making the person entitled to the legal estate a party to the action (c). The question is this: Since the Acts do not expressly attribute any extinguishing effect to a registered charge, can the registered proprietor of registered land, after he has parted with the legal estate therein by unregistered disposition (d), confer by a registered charge a legal lien and a legal right of entry, taking priority over the outstanding legal estate in the land? It is thought that the provision of the Land Transfer Act, 1875 (e), which permits of the disposition of registered land by unregistered assurance, subject to the maintenance of the estate and right of the registered proprietor, points to the preservation to the registered proprietor of his statutory power to create registered charges, notwithstanding that he has parted with the legal estate in the land; and that, on an exercise in such circumstances of the statutory power of charging, the chargee would still obtain a legal lien and a legal right of entry taking precedence of the outstanding unregistered legal estate in the land. This appears to be the opinion of Lord Jus under an equitable title, the person entitled to the legal estate must be a party to the action. But, as above maintained (n. (y)), the chargee has a legal right of entry; so this case has no application. And with great respect to the opinion of the learned author cited, it is not necessary to have the legal estate in land in order to maintain successfully an action to recover possession thereof. We have seen that by the common law a man wrongfully disseised of land was divested of all estate therein, and left with a mere right of entry or even of action; above, p. 773. But he could nevertheless well maintain action to recover possession an against all persons whomsoever for the time being in occupation of the land; see Wms. Real Prop. 17 & n. (n), 64, 19th ed., and authorities there cited. (c) See previous note. If the chargee were to sue the mortgagor to get possession of the land charged, it is thought that the latter would be precluded from asserting that the legal estate was outstanding in some third person; Doe d. Ogle v. Vickers, 4 A. & E. 782; Doe d. Hurst v. Clifton, ib. 809, 813; Doe d. Levy v. Horne, 3 Q. B. 757, 760, 766. (d) Above, p. 1072. (e) Stat. 38 & 39 Vict. c. 87, s. 49; above, p. 1072 & n. (g). tice Cozens-Hardy (ƒ). And this opinion may be further supported by the contention that the owner of the unregistered legal estate, having allowed the registered proprietor to remain on the register as ostensible owner of the land, with all the registered proprietor's powers of disposition, is estopped from asserting his own rights in derogation of any interest or right created by any exercise of those powers (g). There is however a more serious objection to the position of a registered chargee of registered land. Where the mortgaged land is let at the time of registration of the charge, the chargee, not acquiring any estate in the land (), does not become an assignee of the mortgagor's legal estate in reversion on the leases. It follows that, although the chargee may enter into receipt of the rents and profits of the mortgaged land (i), it is at least extremely doubtful whether he can sue the tenants on the lessees' covenants in the leases, or enforce any proviso for re-entry therein contained (). Besides this, when a registered chargee enforces his right of entry (1), (f) Capital and Counties Bank, Ld. v. Rhodes, 1903, 1 Ch. 631, 656. (g) Above, p. 1081, n. (r). (k) It is thought that the chargee, having a mere lien on the reversion, could not be held to be an assignee of part of the reversion and so entitled to enforce the covenants and right of re-entry; see Co. Litt. 215 a; Wright v. Burroughes, 3 C. B. 685. But he might possibly be considered to be "a person entitled, subject to the term, to the income of the land leased," and to be enabled, as such, to enforce the lessee's covenants and the conditions of re-entry by virtue of sect. 10 of the Conveyancing Act of 1881 (stat. 44 & 45 Vict. c. 41), as regards leases made after that year. It has not been decided, however, that that enactment confers the right to enforce the covenants and conditions in a lease on a person, who takes no part of the estate in reversion; and the terms of the whole section seem to be opposed to such a construction. With respect to the chargee's right, on entry into possession, to enforce the lessee's covenants and the conditions in a lease granted by the mortgagor, after the charge, under sect. 18 of the Conveyancing Act of 1881 (stat. 44 & 45 Vict. c. 41), the opinion has been expressed that he can do so; Key & Elph. Prec. Conv. 919, 8th ed., citing Municipal, &c. Building Socy. v. Smith, 22 Q. B. D. 70. That case certainly decided that, when a lease is so granted by the mortgagor after an ordinary mortgage in fee of unregistered land, the mortgagee entering into posses he is not in the position of a mortgagee in fee of unregistered land, who simply takes possession of his own fee simple, subject only to the mortgagor's equity of redemption, which will be altogether extinguished when the mortgagor has held possession for twelve years without acknowledgment of the mortgagor's title or right to redemption (). The registered chargee, who has entered into possession, has still no definite estate in the land; though he seems to have an interest analogous to that of a tenant by elegit. He has no right, on entry into possession, to be registered as proprietor of the land; the mortgagor therefore remains the registered proprietor and can still exercise all the registered proprietor's powers of transfer or charge. And when the chargee has been in possession for twelve years without acknowledgment of the mortgagor's title, he does not obtain ipso facto the full ownership of the land: but he must first apply to the Court for an order for rectification of the register by entry of his name as proprietor of the land. And it does not appear that he can claim such an order as his undoubted right; the granting thereof appears to be in the judicial discretion of the Court, which is to be exercised "subject to any estates or rights acquired by registration for valuable consideration in pursuance of the Land Transfer Acts" (m). It seems, therefore, that persons claiming under registered transfers for value or charges made by the mortgagor sion can enforce the lessee's covenants and the conditions in the lease. But the ground of the decision was that, in such circumstances, the lease took effect under the statutory power out of the mortgagee's legal estate in the land, and the mortgagee had therefore the legal reversion. With great respect to the editors of the treatise above cited, it is submitted that it is far from clear that a registered chargee of registered land, having no estate at all W.-II. in the land and no part of the reversionary estate expectant on such a lease, could successfully maintain an action to enforce the lessee's covenants or the conditions therein contained. (7) Stats. 3 & 4 Will. IV. c. 27, ss. 28, 34; 37 & 38 Vict. c. 57, 88. 7, 9; Kinsman v. Rouse, 17 Ch. D. 104; Forster v. Patterson, ib. 132. (m) See stats. 38 & 39 Vict. c. 87, s. 95; 60 & 61 Vict. c. 65, s. 12. 30 |