Chap. VI. does away with the rule that the amount of a mortgage debt is a matter of account between the parties.

Transmission on death.

Transmission on bankruptcy.

Nature of title of

registered fiduciary proprietor.

Evidence of

Though not expressly stated, it would seem that the transferee when registered will have the rights of a "registered proprietor" under sects. 23 to 28 of the Act of 1875, and of sect. 9 (2) of the Act of 1897.

The Act of 1897, s. 8 (1), and Rule 259, contemplate the existing certificate being endorsed with a note of the transfer, instead of a fresh certificate being issued as here provided.

The words in square brackets were added by the Act of 1897, which also provides, sect. 7 (4), that any person suffering loss by rectification of the register shall be indemnified.

S. 42. "On the death of the sole registered proprietor, or of the survivor of several joint registered proprietors of any charge, the executor or administrator of such sole deceased proprietor, or of the survivor of such joint proprietors, shall be entitled to be registered in his place."

S. 43. "On the bankruptcy of any registered proprietor of any charge, or on the liquidation of his affairs by arrangement, his trustee shall be entitled to be registered as proprietor in his place. [This section shall not apply until it is certified in the prescribed manner by the Court having jurisdiction in bankruptcy that the charge is part of the property of the bankrupt divisible among his creditors. The official receiver shall be entitled to be registered pending the appointment of a trustee.]"

The words in square brackets were added by the Act of 1897.

Rules 193 to 199 prescribe the procedure on bankruptcy, and contain various provisions supplemental to this section.

S. 46. "Any person registered in the place of a deceased or bankrupt proprietor shall hold the charge in respect of which he is registered upon the trusts and for the purposes to which the same is applicable by law, and subject to any unregistered estates, rights, interests, or equities, subject to which the deceased or bankrupt proprietor held the same; but, save as aforesaid, he shall, in all respects, and, in particular, as respects any registered dealings with such land or charge, be in the same position as if he had taken such land or charge under a transfer for a valuable consideration."

See Rules 183 to 199.

S. 47. "The fact of any person having become entitled to any transmission land or charge in consequence of the death or bankruptcy of any of registered registered proprietor, or of the marriage of any female proprietor, proprietor- shall be proved in the prescribed manner."

ship.

See Rules 183 to 186, 192 as to death, and Rules 193 to 199 Chap. VI. as to bankruptcy. The sects. 44, 45 relating to the marriage of female proprietors can hardly have any application now, and no provision is made for them in the rules.

S. 49. "The registered proprietor alone shall be entitled to Effect of transfer or charge registered land by a registered disposition; but, unregistered subject to the maintenance of the estate and right of such pro- dispositions. prietor, any person, whether the registered proprietor or not of any registered land, having a sufficient estate or interest in such land, may create estates, rights, interests, and equities in the same manner as he might do if the land were not registered; and any person entitled to or interested in any unregistered estates, rights, interests, or equities in registered land may protect the same from being impaired by any act of the registered proprietor by entering on the register such notices, cautions, inhibitions, or other restrictions as are in this Act in that behalf mentioned.

"The registered proprietor alone shall be entitled to transfer a registered charge by a registered disposition; but, subject to the maintenance of the right of such proprietor, unregistered interests in a registered charge may be created in the same manner and with the same incidents, so far as the difference of the subject-matter admits, in and with which unregistered estates and interests may be created in registered land."

The first schedule to the Act of 1897 provides that "this section includes power to sever the mines and minerals from the surface."

A mortgage or charge under this section may entail upon the mortgagee or his successors in title the liability imposed by sect. 16 (2) of the Act of 1897.

By sects. 78 and 79, if any certificate of charge is lost, mislaid, or destroyed, the registrar, upon being satisfied of the fact, may grant a new certificate of charge in the place of the former one, and, upon the delivery up to him of a certificate of charge, may grant a new one in its place.

Sect. 78 is repealed by the Act of 1897, and is replaced by sect. 8 (3) of that Act.

Loss and certificate.

renewal of

By sect. 80, any certificate of charge shall be primâ facie evi- Certificate to dence of the several matters therein contained.

be evidence.

S. 83. "The following enactments shall be made with respect to Enactments registration of title :

Neither the registrar nor any person dealing with registered land or a charge shall be affected with notice of a trust, express,

VOL. I.-C.

E

as to registration.

Chap. VI.

Fraudulent dispositions.

Incumbent of benefice.

implied, or constructive; and references to trusts shall as far as possible be excluded from the register (☛).

(3.) Upon the occasion of the registry of two or more persons as proprietors of the same land or of the same charge, an entry may be made on the register, to the effect that, when the number of such proprietors is reduced below a certain specified number, no registered disposition of such charge shall be made, except under the order of the Court, or of the registrar after enquiry into title, subject to an appeal to the Court. Subject to general rules, wherever registered land or a charge is to be entered in the names of two or more joint proprietors, the registrar shall make such entry under this sub-section as may be prescribed, unless it is shown to his satisfaction that the joint proprietors are entitled for their own benefit."

The latter part of this section, which was added by the Act of 1897, is considerably modified by Rules 224, 225.

The registration of charges created by companies is provided for by Rule 161.

S. 98. "Subject to the provisions in this Act contained with respect to registered dispositions for valuable consideration, any disposition of land or of a charge on land, which if unregistered would be fraudulent and void, shall, notwithstanding registration, be fraudulent and void in like manner.

It would seem that the provisions as to charges in sects. 22 to 28, and as to transfers of charges in sect. 40, would, where the disposition is in fact for value, be protected under this section.

Where the incumbent of a benefice and his successors are the registered proprietors of land no disposition of it can be registered unless a certificate in the prescribed form is obtained, and no lien can be created by deposit of the land certificate (y).

The provisions with regard to liens created by deposit, or notice of intended deposit of certificates, will be dealt with later (z).

The provisions of the Land Transfer Act, 1875, never had any great practical effect; and the Act of 1897 is not only as yet limited to a very small area, but is also limited in its operation within that area (a), and consequently the Acts, though dealt with in the present treatise, are not at present of any very great or general importance.

(x) Act of 1897, s. 14, and Sched. I., replacing sub-sects. 1 and 2 of sect. 83 of Act of 1875. As to registration where money is advanced by two or more persons, see r. 163.

(y) Act of 1897, s. 15, rr. 237-239.

(z) Post, p. 72.

(a) There is no compulsion to register except on the first sale after the Act of 1897 has become applicable: Capital and Counties Bank v. Rhodes. (1903) 1 Ch. 631, per Cozens-Hardy, L. J.

CHAPTER VII.

OF EQUITABLE MORTGAGES.

SECTION I.

OF THE DIFFERENT MODES BY WHICH AN EQUITABLE MORTGAGE

MAY BE CREATED.

AN equitable mortgage to secure a past debt or a present advance may be made:

(1.) By a formal mortgage of the equity of redemption in Mortgage of property, when the legal estate is vested in a prior redemption.

mortgagee.

equity of

(2.) By an agreement or any charge or other writing, how- Agreement ever informal, which indicates with sufficient certainty for mortgage. the intention to create a mortgage security, provided that in the case of land such agreement or charge is sufficient to satisfy the requirements of the Statute

of Frauds.

(3.) By a deposit with the creditor of deeds, copies of court Deposit of rolls, or other documents of title, either with or with- deeds. out a memorandum of charge, by way of security for payment of the debt or loan.

An equitable mortgage may be given to secure a present loan Further and future advances (a).

advances.

An equitable mortgagee may, in a proper case, obtain an Legal estate injunction restraining the mortgagor from parting with the outstanding. legal estate, if not already outstanding (b).

(a) Ex parte Heathcoat, 1 Fonbl. N. R. 42.

(b) London and County Bank v. Lewis, 21 Ch. D. 490.

Chap. VII. § 2 (i).

SECTION II.

Nature of equity of redemption.

First mortgagee paid off is trustee

of legal estate quent incum

for subse

brancers.

Action to compel conveyance of

legal estate.

Disadvantages of mortgages of equity of redemption.

OF A MORTGAGE OF AN EQUITY OF REDEMPTION.

i.-Nature and Incidents of Mortgage of Equity of Redemption.-An equity of redemption is, as will be seen hereafter (c), an estate or interest of which the mortgagor, until decree of foreclosure, is possessed of his ancient and original right, and accordingly may be the subject of mortgage toties quoties.

Where successive mortgages are made of an equity of redemption, subject to a prior legal mortgage, the first mortgagee, on being paid off, becomes a trustee of the legal estate for any subsequent incumbrancers according to their priorities, and is accordingly bound to convey the estate to the second mortgagee, who has the best right to call for it: he must not convey the estate to a subsequent mortgagee so as to alter the priorities of successive equitable incumbrancers (d). A mortgagee is not, subject to his security, a trustee of the legal estate for the mortgagor (e).

A second mortgagee may, upon the first mortgagee being paid off by the mortgagor, bring an action to obtain a conveyance or assignment of the legal estate, although an actual tender has been made to him by the mortgagor of the money due on the second mortgage, and even although a decree for redemption has been obtained, until the time fixed by the decree for redemption has arrived, though such a course will probably fix him with costs, if the mortgagee has had his proper notice of six months before tender made (ƒ).

A loan on the security of a mortgage of an equity of redemption is attended with certain serious risks and disadvantages.

As between mere equitable incumbrancers, it is a maxim in equity-qui prior est tempore, potior est jure (g). On this principle each mortgagee of the equity of redemption has preference according to his priority in time (h).

(c) See post, p. 649.

(d) Sharples v. Adams, 32 Beav. 212. (e) Taylor v. Russell, (1892) A. C. 244, per Lord Herschell.

(f) Grugeon v. Gerrard, 4 Y. & C. Ex. 119.

(g) Brace v. Duchess of Marlborough,

2 P. Wms. 491; Wilmott v. Pike, 5 Ha. 14; Jones v. Jones, 8 Sim. 633; and see Wiltshire v. Rabbits, 14 Sim. 76; Rooper v. Harrison, 2 K. & J. 100; Lee v. Howlett, 2 K. & J. 531; Consolidated, &c. Co. v. Riley, 1 Giff. 371.

(h) See post, pp. 1255 et seq.