Purchase from an incumbrancer, prior to first

(k) Above, pp. 511 sq., 1066, 1086, 1093, 1094.

(l) Above, pp. 1118, 1119.

(m) Above, pp. 369, 370.

(n) Above, pp. 372, 373, 1119

& n. (r)

(o) Above, p. 1120 & n. (a), (p) Above, pp. 1093 - 1096. (q) Above, pp. 1074 - 1081. (r) Above, p. 1067. registration, registered as proprietor of the incumbrance.

(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 sale conferred by the Conveyancing Act of 1881; see above, p. 341 & n. (s).

(y) Above, pp. 338 sq.

(z) Above, pp. 1086 - 1088.

(a) Above, pp. 1095, 1096.

(b) Above, pp. 1074 - 1081.

(c) Stat. 60 & 61 Vict. c. 65, s. 8 (4); above, p. 1065, n. (o).

The sale of land under the power of sale conferred by a registered charge which has been created subsequently 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 (h). 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 (i). 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 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 he paid on taking the precautions explained above (l); 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 (n); 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 (q) in the land sold may also be inserted.

Purchase from a chargee subsequent to registration.

(d) Above,pp. 1066, 1086, 1093.

{e) Above, pp. 1059, 1060, 1073.

(f) Above, pp. 1086 - 1088.

(g) The Land Transfer Act, 1897, s. 9 (2), applied to registered charges the power of sale and other powers given by the Conveyancing Act of 1881 (stat. 44 & 45 Vict. c. 41, ss. 19 - 24, except sect. 21 (1, 4)), to mortgagees by deed; so that, as the instrument of charge is a deed, the chargee will have all these powers in the absence of stipulation to the contrary. See stats. 38 & 39 Vict. c. 87, ss. 22 sq., 27; 60 & 61 Vict. c. 65, s. 9; Land Transfer Rules (1903), 159; above, pp.1094, 1123, n. {x).

(h) Above, pp. 338 sq.

(i) Above, p. 1095, n. (s).

Particular difficulties arise where a sale of registered land is to be followed by an immediate mortgage thereof, the mortgagee advancing part of the purchase money (r): but to explain these it is necessary to say a few words about the form of a mortgage of registered land.

Sale and mortgage of registered land.

The statutory charges on registered land, which were introduced by the Land Transfer Acts (s), appear to confer on the chargee fairly adequate remedies for the recovery of the mortgage debt and interest by suing the mortgagor personally (t), by exereise of the power of sale (u) and by foreclosure (x): but they are deficient in respect of the mortgagee's remedy by entry into possession. Where the registered proprietor of the land, who created the registered charge, had himself the Legal estate, the registered proprietor of the registered charge appears to have a legal interest in the Land charged in the nature of a lien thereon for the principal money and interest charged (y) and a legal right of entry into possesion or receipt of the rents and profits of the Land charged(z): 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 (b), it is not absolutely certain whether they take priority over previous unregistered dispositions of the legal estate, or if they do, whether the right of entry can he 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 Justice Cozens-Hardy (f). 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 (h), 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 (k). Besides this, when a registered chargee enforces his right of entry (i),