(m) Stat. 60 & 61 Vict. c. 65, First Schedule.

(n) See "Wms. Real Prop. 632, 633 and n. (n), 21st ed.; 45 Sol. J. 357.

(o) Sug. V. & P. 561: Dart, V. & P. 707, 5th ed.; 708, 6th ed.; 714, 7th ed.

(p) See below. Chap. XII., Sec. 1, 5; Chap. XX. It is submitted that the case is not parallel to that of the conveyance of land in a register county, when the legal estate passes by the deed of conveyance: above, p. 374. In L. Q. R. xx 97, the learned reviewer of the first edition of this book challenged the correctness of the statement in the text, and compared the case to that of a tenant in tail Belling the fee simple, when (he suggested) the duty of enrolling a conveyance made by way of disentailing assurance rests on the purchaser. With great respect for this opinion, the author is constrained to adhere to the view above expressed; and he submits that the case of a Bale by a tenant in tail is different. The effect of stat. 3 & 4 Will. IV. e. 74, ss. 15, 41, appears to be that the grantee of an estate in fee simple under a disentailing deed executed by the tenant in tail obtains the Legal estate in fee simple on the execution of the deed, subject. to a condition subsequent reducing the assurance, in case of non-enrolment within due time, to such a conveyance as the tenant in tail could make at common law; see Whitmore -Searle V. WhitmoreSearle, 1907, 2 Ch. 332. And even at common law the grantee would take a fee simple defeasible by the entry of the issue in tail: Doe d. Neville v. Neville, 7 T. R. 276; Doe d. Gregory v. Whichelo 8 T. R. 211, 214; Wms. Real Prop. 108 and n n , 21st ed. Besides, the fact that the tenant in tail is bound to pay the costs of enrolment (below, Chap. XII. 4), appears to show that the duty of procuring the enrolment (as being an act without which he cannot convey the estate he sold and so a step in the vendor's title) really lies on the vendor. So in the case of the Bale of land in a compulsory registration district it is submitted that the registration of the purchaser is an act without which the vendor cannot convey to the purchaser the estate contracted for, and is equally a step in the vendor's title to convey what he has contracted to sell (see above, p. 94). But the main point is that in this case (unlike that of a purchase from a tenant in tail or of land in a register county) the purchaser can only obtain an equitable estate by the conveyance to him by deed of the land sold, and holds therefore, prior to the completion of his title by registration, subject to all equitable interests (if any) created previously to his own in the property purchased, whether he has notice of such prior interests or not (see below, Sec. 10 of this chapter). It is submitted that he cannot be obliged to part with his purchase money against a conveyance of this kind, unless he be bound by express stipulation to do so.

W

Sale of lease holds in compulsory district.

Priority notice in favour of the purchaser's application for first registration.

(q) See Wms. Real Prop. .511. 512, 21st ed.

(r) Appendix A., below.

Registered transfer or charge by the purchaser before his own registration.

It has been suggested (y) that the provisions of the Land Transfer Act, 1897 (z), as to compulsory registration on sale may be evaded in this way: - Let it be stipulated in the contract for sale that, on payment of the purchase money, the vendor shall execute a deed declaring himself a trustee for the purchaser and his heirs, and giving to the purchaser power to remove him from the trusteeship and appoint a new trustee in his place, and shall put the purchaser into possession of the property sold. Let the purchaser take possession on completion and afterwards execute a deed removing the vendor from the trusteeship, appointing some nominee of his own trustee in the vendor's place, and vesting the land in the new trustee. Then let the purchaser call upon this trustee to convey to him the legal estate in the land, and let the same be conveyed to him accordingly. There certainly seems to be good ground for contending that neither the deed appointing the new trustee nor the deed of conveyance from the new trustee to the purchaser himself is "an instrument executed on sale" within the meaning of the enactment in question (a), for when the price was paid, the first deed executed, and the purchaser put into possession, the contract of sale would have been completely discharged on both sides by performance of all the obligations thereby undertaken (b). But this plan is open to the very serious objection that the purchaser parts with the whole of the purchase money against the conveyance to him of a merely equitable estate. . It is never safe for a purchaser to do this, because in that event he takes subject to all equitable interests (if any) affecting the land and created previously to his own, and this is equally the case whether he has or has not notice of such prior interests (c).

Suggested evasion of the compulsory registration enactment.

(s) Land Transfer Rules (1903) . 95.

(t) Rule 96: see below. Chap. XX.; Wms. Real Prop, 648-656, 662, 673, 21st ed.

(u) Brickdale & Sheldon, Land Transfer Acts, 396, 397, 2nd ed.

(x) Below, Chap. XX. at end.

(y) Brickdale A Sheldon, Land Transfer Acts, 313, 1st ed.; 339. 2nd ed.

(z) Stat. 60 & 61 Vict. c. 65. s. 20; above, pp. 381, 382.

25(2)

It is a question whether registration of the title is necessary to pass the legal estate on the completion of the last of several successive purchases of undivided shares (together making the entirety) of unregistered land situate in a compulsory registration district. The enactment as to compulsory registration applies to every instrument executed on sale whereby a title to apply for first registration is conveyed or completed: but nothing in the Act is to render compulsory the registration of the title to an undivided share in land(d). There seems to be no doubt that the conveyance by deed on purchase of an undivided share in unregistered land situate in a compulsory registration district passes the legal estate, so long as there is not conferred or completed by virtue thereof a title to apply for first registration of something more than an undivided share in land. Thus, if A. be the owner of one-half of Blaekacre, and the other half belong to X., and B. purchase A's moiety, it seems clear that a deed of grant by A. of his moiety to B. in fee simple would pass the legal estate therein to B. Then suppose that after this B. purchase X.'s moiety, and X. convey it to him by deed, is B. obliged to register his title to this moiety in order that he may acquire the legal estate therein? This can only be necessary if the deed can rightly be described as an instrument by virtue whereof there is completed in B. a title to apply for registration in respect of some property, which is not an undivided share in land. But this does not appear to be the case. B.'s title to apply for registration in respect of the moiety purchased from A. was entirely completed when A. conveyed it to him (e); so that the deed of grant from X. to B. could only complete B.'s title, which was conferred by the contract of sale, to be registered as pro-prietor of X.'s moiety. And it seems clear that in any case, non-registration of B.'s title to X.'s moiety could not possibly avoid or impair the legal estate, which B. had already obtained in A.'s moiety. If so, how can it be necessary for B. to register his title to X.'s moiety, as a condition precedent to his obtaining the legal estate therein, when it is expressly enacted that nothing contained in the Land Transfer Act, 1897, shall render compulsory the registration of the title to an undivided share in land (g)? If B. were obliged to register his title to X.'s moiety in order to gain the legal estate, then it certainly would be compulsory to register the title to an undivided share in land. If this reasoning be right, there seems to be no difference between the example given and the case where A. is the owner of the whole of Blackacre and B. buys of him (say) nine-tenths for 900l. and afterwards contracts to purchase the remaining tenth for 100/. And it appears that the deed of grant of the remaining tenth would only complete B.'s title to be registered as proprietor of that tenth, and would not confer on or complete in him any title to be registered as proprietor of the nine-tenths which he bought under a separate and prior contract. In the absence, however, of any judicial decision on these points, it would hardly be safe to accept a title depending on the conveyance by deed alone of the remaining undivided share or shares to one who was already seised of some undivided share in unregistered land situate in a compulsory registration district (h). Thus if in either of the examples given B. omitted to register his title to the share last conveyed to him, it would not be satisfactory for a purchaser from him to accept his title to the entirety of Blackacre without submitting the question of his being seised of the whole legal estate to the decision of the Court; though the purchaser would have to pay the costs of the application if the Court should decide in favour of the title. If in the cases put, the conveyance of the remaining half or tenth share were taken to the use of a trustee in fee simple in trust for B., there would be further ground for contending that the legal estate would pass without registration of the title; for there would then be no merger of the undivided shares acquired by B., his title to registration as beneficial owner of the half or tenth share last acquired would remain separate and distinct from his title as legal owner of the other moiety or nine-tenth shares, and there would not at any time have been completed in him one title of the same kind (such as tenancy of the legal estate in fee simple) to apply for the first registration of the entirety of the land. But in this case also it would scarcely be prudent for a purchaser from B. to accept the title without a judicial decision in its favour. If, however, it should be held that in these instances the conveyance of the undivided share last assured passes the legal estate without registration of the title, it would be difficult to maintain that there is any difference in the case where a contract to buy the whole of Blackacre at one price is by mutual assent completed by the conveyance of one-half on Monday and of the other half on Tuesday. It is true that in this case (unlike the others) a title to apply for registration in respect of the whole of Blackacre is conferred by the contract for sale, so that it may well be argued that this title is completed by the conveyance of the second moiety (i). But it appears that in this case also the conveyance of the moiety first assured would irrevocably pass the legal estate therein to the purchaser (k). If then he should be obliged to register his title to the second moiety in order to acquire the legal estate therein, the Act would (contrary to its own express words) render compulsory the registration of the title to an undivided share in land (l).