But as between two registered deeds for good consideration In England. without notice, this difference exists, viz., that in England, a registered deed conveying the legal estate will have preference over a prior registered equitable conveyance, if such subsequent conveyance was obtained without notice of the prior equitable assurance (u), and a prior legal mortgagee duly registered, advancing a further sum without actual notice of a puisné incumbrance (x), or an equitable mortgagee getting in the legal estate without notice (y), may tack their respective securities, although the mesne incumbrance be duly registered. It is the folly of a purchaser or mortgagee to advance his money without having previously ascertained whether the legal estate be outstanding or not; and if the legal estate is shown to be outstanding, it is his business to get it in, or give proper notice of his incumbrance. If he neglect so to do, he takes the consequences: -Vigilantibus non dormientibus subveniunt leges. But a legal registered mortgagee cannot set up an unregistered charge against a subsequent registered mortgage; the unregistered charge is by the Act fraudulent and void against the latter (≈). In Ireland, however, by force of the peculiar wording of s. 3 In Ireland. of 6 Anne, c. 2 (Ireland) (a), and not because registration amounts to notice under the Irish, any more than it does under the English, Acts (b), a prior registered deed, although only a charge (c), and even registered articles of agreement, will have preference over a subsequent deed, although it be a conveyance of the legal estate without notice (d). In fact, priority is according to the time of registration, and consequently tacking has no application (e). It is, however, only a deed above exception and untainted with fraud which will acquire priority by registration (ƒ). (u) Morecock v. Dickens, Amb. 678, sup. 113 (k). (x) Bedford v. Backhouse, 2 Eq. Ca. Ab. 615. (y) Cator v. Cooley, 1 Cox, 182. (z) Credland v. Potter, 18 Eq. 350, V. C. Bacon; 10 Ch. 8. (a) 1 Sch. & Lef. 98. (b) Bushell v. B. ib. 90; Underwood v. Lord Courtown, 2 ib. 41; Pentland v. Stokes, 2 Ba. & Be. 75. (c) Bushell v. B. sup. ; Eyre v. Dolphin, 2 Ba. & Be. 290-300; Thompson v. Simpson, 1 Dr. & W. 486; McNeill v. (d) Bushell v. B. sup.; Warburton v. (e) Bushell v. B. sup.; Latouche v. Dunsany, sup. See Carlisle v. Whaley, 2 L. R. H. L. 391; Tenison v. Sweeny, 1 Jo. & Lat. 710; Molesworth on registration in Ireland, 32, 66. (f) Underwood v. Lord Courtown, sup. Irish judgments. Registered deed carries Judgments do not require to be registered under the Irish Registry Acts, but have preference according to their date of entry over all subsequent deeds although registered, and even over all unregistered deeds, although prior in date; although there was a difference of opinion between the authorities (g). The principle is familiarly expressed by saying that the reup judgment gistered deed carries up the judgment "on its back" (h). A similar conflict of claims was dealt with in England in the same way (i). on its back. Registration not notice. In Ireland. Lord Redesdale's views. (8.) Registration is not notice. The registration of a deed or judgment is not of itself notice (k), and consequently, if, subsequently to an assignment of a mortgage which is registered, payments are made by the mortgagor to the mortgagee, without notice of the registered assignment, they must be allowed in account by the assignee (1). The same doctrine is applicable in Ireland, notwithstanding the difference between the Registry Acts of England and the Registry Act of Ireland (m); the latter of which declares, that every deed shall be effectual according to the priority of time of registering the memorial. Lord Redesdale remarked: "The registry is considered as notice to a certain extent; no person thinks of purchasing an estate without searching the registry; and, if he searches, he has notice; but I think it cannot be notice to all intents, on account of the mischief that would arise from such a decision. For, if it is to be taken as constructive notice, it must be taken as notice of every thing that is contained in the memorial; if a memorial contains a recital of another instrument, it is notice of that instrument; if of a fact, it is notice of that fact." His lordship ultimately determined that the plaintiffs were entitled to have the benefit of the articles against persons claiming by virtue of a subsequent legal (g) Latouche v. Lord Dunsany, 1 Sch. & Lef. 161, and D'Arcy v. Chambers, ib. 468. (h) Sparrow v. Cooper, 1 Jones, Ir. Exc. 72; Molesworth on Registration, 59, 60; Murtagh v. Tisdall, 1 Flan. & Kel. 20. (i) Sup. p. 114. (k) Bedford v. Backhouse, 2 Eq. Ca. Abr. 615, pl. 12; Wrightson v. Hudson, 2 Eq. Ca. Abr. 609; Williams v. Sorrell, 4 Ves. 389; Wiseman v. Westland, 1 Y. (1) Williams v. Sorrell, sup. Redesdale's settlement, under the peculiar wording of the Act (n). In a subse- Lord quent case (o), in which he decided that the Irish Registry Act views. would not permit tacking, he observed, "That the registry is to be considered as notice to all intents and purposes, is, I think, what one would not be inclined to hold when one sees the effect of so considering it; if it is to be considered as notice because it is an intimation of the existence of a deed put upon record, it must be notice of every thing in that deed, for a party would be bound to inquire after the contents of that deed; if it be notice, it must be notice whether the deed be duly registered or not; it may be unduly registered; and if it be so, the Act does not give a preference; and thus this construction would avoid all the provisions in the Act for complying with its requisites." And in another case (p), he observed, "that it seemed to him that nothing could be more mischievous than to hold that the putting any thing on the registry is notice, within the meaning of the word notice as applied to Courts of equity in such cases." The docketing of judgments under the old law was not of itself Docketing. notice (9), nor is registration of a judgment under 1 & 2 Vict. c. 110 (r). (9.) Search not absolutely necessary. A purchaser, or mortgagee, is not bound to search the registry (s). Search. But, if he searches, notice will be presumed (t). Where it appears that an incumbrancer searched the register from a certain date only, he will not be considered to have had notice of any of the contents of the registry prior to that date; though secus where a general search is admitted or proved (u); and a purchaser, or mortgagee, is not bound to make inquiries with a view to the discovery of unregistered instruments (x). Searches may be required to be made by the proper officer, and a certificate of the result thereof filed, which shall be conclusive (y), and protect trustees and their solicitors (y). (n) Bushell v. B. 1 Sch. & Lef. 103. (0) Latouche v. Lord Dunsany, sup. (p) Underwood v. Lord Courtown, 2 Sch. & Lef. 64. (q) 2 Eq. Ca. Abr. 682, note. (r) Robinson v. Woodward, 4 De G. & S. 562. (8) Lane v. Jackson, 20 Beav. 535. (t) Procter v. Cooper, 2 Drew. 1. (u) Hodgson v. Dean, 2 S. & S. 222; Ford v. White, 16 Beav. 120; Wrightson v. Hudson, sup; Bushell v. B. sup.; Lane v. Jackson, sup.; Rolland v. Hart, 6 Ch. 684. (x) Agra Bank v. Barry, 7 L. R. H. L. 135, per Lord Selborne. (y) Conveyancing Act, 1882, 45 & 46 Vict. c. 39, s. 2. Decrees and orders. (10.) Notice of decrees and orders. As respects decrees, rules, and orders, for payment of money-as they, prior to 1 & 2 Vict. c. 110, gave merely a personal right against the party liable to pay, it is clear that, until registered in the Common Pleas, they constituted no charge on his land, and would be rendered inoperative by an intermediate alienation of the land even with notice (a). If the holder of the decree, &c., has, at the time of registration of his decree, &c., notice of the intervening alienation, he would of course be bound, but it is submitted that, even if he had not notice, his registration could not have given a charge upon land which the debtor had aliened, and in which therefore he had no interest (b). (11.) Indian Registration Acts. Under the Indian Registration Acts, unregistered deeds have no effect, notwithstanding notice (c), either in India or England (d). (12.) Summary of law of judgments. As to land under the old law :— 1. A judgment duly docketed bound subsequent purchasers and mortgagees (e): 2. Even subsequent purchasers and mortgagees with the legal estate, and without notice (e) : 3. But not subsequent purchasers and mortgagees getting in a prior outstanding legal estate, and without notice (e): 4. A judgment not duly docketed bound purchasers and mortgagees with notice (h). Under the present law : 1. Judgments entered up prior to the 23rd July, 1860, must have been registered, or re-registered, within five years last preceding, to be effectual charges under 1 & 2 Vict. c. 110. (a) Lee v. Green, 6 De G. M. & G. (b) Whitworth v. Gaugain, 1 Ph. 728; (c) Indian Acts, No. XVI. of 1864, No. XX. of 1866; Hicks v. Powell, 5 (d) Hicks v. Powell, sup. (h) Sup. pp. 57, 106. 2. Notice of unregistered judgments is not binding (¿). 3. Judgments entered up after 23rd July, 1860, and before 29th July, 1864, could only become a lien on land by a writ of execution being registered: but such lien ceased if the writ was not executed within three calendar months from registry, under 23 & 24 Vict. c. 38 (k). 4. Judgments entered up after 29th July, 1864, must be enforced by actual delivery of the land under a writ of execution duly registered, and by sale of the land within three calendar months from the registry under 27 & 28 Vict. c. 112 (7). Under the county registries: 1. A judgment registered in the county registries is prior to an unregistered judgment, even with notice (m). 2. A registered mortgagee is postponed to a judgment not registered in the county, of which he had notice, if such judgment is duly registered in the Central Office. 3. But a registered mortgagee is not bound by a judgment registered neither in the Central Office, nor in the county, even though he has notice of it. |