It appears from the foregoing (g) that the Registry Act has affected in two ways the equitable. principles governing priorities (h). In the first place, under the statute the priority of claims relating to land depends prima facie upon the order in which the instruments upon which the claims are based were registered, and not upon the order in which such between the mortgagor and the mortgagee setting out the conditions on which and the times at which the advances are to be made and reserving to the mortgagee the right to refuse to make any further advances in his discretion. The registered mortgage in that event may be expressed to be security for the total amount to be advanced.

(f) [1899] 1 Ch. 132, at p. 143. (g) Sec. Sec. 72-76, supra.

(h) These principles are stated in chapter 7.

Priority of registration, however, may not prevail. A mortgage prior as to execution and registration may be postponed to a mortgage made and registered subsequently.

Thus where A mortgages to B. land which he has agreed to purchase from C. but has not yet purchased, and after registration of the mortgage A. receives a deed of the land from C. and gives a mortgage back to C. for the unpaid purchase money, in that case B's. mortgage although prior in execution and registration is postponed to C's. mortgage. B. under his mortgage takes no estate from A. as A. has none to give, or at most takes an estate by estoppel, and the subsequent conveyance to A. feeds the estoppel only to the extent of A's interest in the land which is that of owner of the equity of redemption; and the Registry Act does not apply (i).

If a person takes for value under a registered instrument he is entitled to priority over an earlier unregistered instrument of which he has not actual notice, and whether he takes a legal or an equitable interest his claim will not be postponed under the Registry Act merely because he has been negligent in failing to enquire about the title deeds (j). Nevertheless the failure to make an enquiry about the deeds is negligence, and it has been held that a solicitor who was negligent in this respect was liable to his client who advanced money on a mortgage which it afterwards transpired was forged (k).

(i) Nevitt v. McMurray, 1886, 14 O.A.R. 126; McMillan v. Munro, 1898, 25 O.A.R. 288.

(j) As to the effect of negligence in postponing an equitable charge, see chapter 7.

Registration is not a panacea. The mortgage in the last mentioned case was of course a nullity, and its registration did not give it any validity (I), nor could any subsequent purchaser claiming through a forged instrument get any protection by reason of the registration of the instrument (m).

Again, although the mere fact that a grantee under a registered instrument was aware that a person other than his grantor was in possession does not constitute actual notice of the adverse claim of such person under the Registry Act (o), it does not follow that the grantee may not be affected by such person's adverse possession (p).

It would appear also that legal rights or interests arising by implication and not expressed in a written instrument are not affected by the Registry Act (pp).

English and Irish cases with regard to the effect of registration must, of course, be read with due regard to the statutes under which they were respectively decided. Under the Middlesex Registry Act, 1708, and under the corresponding Irish statute of 1707, as under the Ontario statute, a person who takes with actual notice of an earlier unregistered instrument does not gain priority by registering his instrument before the registration of the earlier instrument (q). Under the Yorkshire Registries Act, 1884, on the other hand, all assurances entitled to be registered have priority according to the dates of registration, and it is provided that no person shall lose his priority merely in consequence of his having been affected with actual or constructive notice, except in cases of actual fraud (r).

(k) Freehold Loan Co. v. McArthur, 1888, 5 M.R. 207. It is true that if the solicitor had enquired about the deeds he might have been put off with a plausible excuse and the money might nevertheless have been advanced. The enquiry in that event would not have benefited the client but it might have relieved the solicitor from liability.

(I) Cf. In re Cooper, Cooper v. Vesey, 1882, 20 Ch.D. 611.

(m) If a forged instrument is registered under the land titles system, the Immediate grantee or mortgagee is in no better position than he would be under the Registry Act, but when his name is entered on the register under the land titles system as the registered owner or mortgagee, a purchaser from him may get a good title. See chapter 10, The Land Titles Acts, Sec. 92.

(o) Roe v. Braden, 1877, 24 Gr. 589; cf. Sec. 74, supra.

(p) Thornton v. France, [1897] 2 Q.B. 143; McVity v. Trenouth, 1905, 9 O.L.R. 105, at p. 110, S.C. 36 Can. S.C.R. 455, reversed (on another point) [1908] A.C. 60. See chapter 26, Limitation of Actions, Sec. 272.

(pp) See Israel v. Leith, 1890, 20 O.R. 361, discussed in Sec. 73, supra.