Prior to 1865 the registry acts contained a proviso that nothing therein contained should be construed "to affect the rights of equitable mortgages as now recognized in the Court of Chancery in this province" (m), and, generally speaking, equitable charges on land were recognised at all in Upper Canada. The priority of equitable charges under the section in question would be governed by the principles discussed in chapter 7.

(j) Owing to the fact that the prior instrument was not registered at all prior to the judgment in the action, the present s. 71 alone was applicable. If both instruments had been registered it would have been necessary to consider s. 72, whereas under s. 71 the person taking under an instrument without actual notice of an earlier unregistered instrument obtains priority by registration even though he receives notice of the unregistered instrument in the interval between the delivery of his own instrument and its registration. Peebles v. Hyslop, supra.

(k) Harrington v. Spring Creek Cheese Mfg. Co., 1904, 7 O.L.R. 319, at p. 325.

(I) Roe v. Braden, 1877, 24 Gr. 589; Ihde v. Starr, 1909, 19 O.L.R. 471; secus if the purchaser has actual notice of the title of the person in possession: Trinidad Asphalte Co. v. Coryat, [1896] A.C. 587.

(m) 13 & 14 V. c. 63, s. 3; C.S.U.C. 1859, c. 89, s. 53. It was of course only since the creation of the Court of Chancery in 1837 that any equitable interests not expressed in a written instrument were outside of, and not affected by, the Registry Act (n). In that year, however, the statute was amended (o). The proviso in question was omitted, but on the other hand the class of instruments which might be registered was enlarged so as to include practically every kind of instrument affecting land, and in addition to the provisions already mentioned, there was enacted the provision which is now contained in R.S.O. 1914, c. 124, s. 73, as follows:

78. No equitable lien, charge or interest affecting land shall be valid, as against a registered instrument executed by the same person, his heirs or assigns; and tacking shall not be allowed in any case to prevail against the provisions of this Act (p).

Thus the statute of 1865 not only deprived equitable charges of the exemption from the operation of the Registry Act which they had theretofore enjoyed, but, so far as they might be created by a written instrument, it put them on the same basis as conveyances or mortgages of the legal estate as to registration (q). Equitable charges which may arise by operation of equity without any written instrument are governed by s. 73. The section is badly drawn, and it is necessary, in order to give some meaning to the expression "the same party," to supply earlier in the section some words referring to the party against whom the equitable charge may be asserted. No express provision, it will be noted, is made for the case of notice of the prior equitable charge having been received by the person claiming under the registered instrument. It has been held, however, that the section does not confer priority upon a person claiming under a registered instrument over an equitable charge of which he has actual notice (r).

(n) McMaster v. Phipps, 1855, 5 Gr. 253; cf. Oxley v. Culton, 1899, 32 N.S.R. 256. Apparently legal interests not expressed in a written instrument are still outside of, and not affected by the statute. See Israel v. Leith, 1890, 20 O.R. 361, in Sec. 73, supra.

(o) 29 V. c. 24, re-enacted, so far as the present subject is concerned, by 31 V. c. 20.

(p) As to the concluding words of the section, with regard to the doctrine of tacking, see chapter 9, Sec. 87.

(q) See the present statutory provisions quoted in Sec. 71, supra.

After considerable conflict of opinion in the Court of Chancery it was decided that the provision of the statute of 1865 now in question was retrospective and that it was only actual notice, not constructive notice that would postpone a registered instrument as against a prior equitable charge (s). If, however, actual notice is received by an agent in such circumstances that the notice is imputed to his principal, this imputed notice to the principal is regarded as actual notice which is sufficient to postpone the principal's claim under the Registry Act (t).

(r) Forrester v. Campbell, 1870, 17 Gr. 379; Rose v. Peterkln, 1885, 13 Can. S.C.R. 677, especially at pp. 704 ff.; S.C. sub nom. Peterkin v. McFarlane, 9 O.A.R. 429, especially at pp. 459 ff.; City of Toronto v. Jarvis, 1895, 25 Can. S.C.R. 237. When the section was originally passed in 1865, the courts of law and equity respectively were still distinct, and the equities in question could be asserted only in a court of equity, but in that court would be subject to the equitable doctrine of notice. This circumstance affords a possible explanation of the failure to provide for the case of notice in this section. In the case of two claimants of the legal estate on the other hand it was necessary to provide for the case of notice in order to obviate the necessity for the parties to resort to a court of equity for equitable relief. Cf. Strong, J., 13 Can. S.C.R. at p. 709.

(s) See the cases on both points collected in Cooley v. Smith, 1877, 40 U.C.R. 543. As to the statute being retrospective, see also Building and Loan Association v. Poaps, 1896, 27 O.R. 470. As to constructive notice generally, see the next preceding chapter. As to actual notice under the Registry Act, see also Coolidge v. Nelson, 1900, 31 O.R. 646.

(t) Rose v. Peterkin, 1885, 13 Can. S.C.R. 677, at pp. 694 ff.; Green v. Stevenson, 1905, 9 O.L.R. 671; Rolland v. Hart, 1871, L.R. 6

Inasmuch as s. 73 applies to equities arising without any-written instrument, the question arises under it how, if at all, a person claiming an equity of this kind can protect himself under the Registry Act. If a mortgagee by deposit of title deeds, an unpaid vendor or other person claiming an equitable lien upon lands is in a position to bring an action to enforce his lien, he may in that action obtain a certificate of lis pendens and register it so as to give notice to persons subsequently acquiring interests in the lands (u).