Priority Flashcards
Hill v Tupper (1863) 2 H & C 121, 127-128, 159 ER 51 Pollock CB
The case concerns easements.
The owner of land cannot, at his pleasure, create new rights or incidents of property and annex them to land, or render it subject to a new species of burden so as to bind it in the hands of an assignee/stranger.
Facts
The Basingstoke Canal Co gave Mr Hill an exclusive contractual licence to hire boats out. Mr Tupper also hired boats out on the canal. Mr Hill wished to stop Mr Tupper from operating.
Held
Pollock CB – held that the contract did not create any legal property right, and so there was no duty on Mr Tupper. If Mr Hill wanted to stop Mr Tupper, it would have to force the Canal Company to assert its property right against Mr Tupper. An easement would not be recognised.
‘A new species of incorporeal hereditament cannot be created at the will and pleasure of the owner of property…’
The case is significant because it is a good example of the key difference between a legal property right in land and a personal right. The Exchequer Chamber found that the canal company’s contractual promise to Mr Hill gave him only a personal right against the company
Actions to take with property rights: • Contract • Tort • Unjustified enrichment Case demonstrates that there is no direct action in TORT and the person had no property right.
Keppell v Bailey (1834) 2 M & K 517 Brougham LC
Landowners and owners of iron works, among others the lessees of the B works, formed a joint stocks company and constructed a railroad connecting the quarry with the iron works and with the railroad of a canal company. In the partnership deed of the railroad company the lessees of the B works made a covenant for themselves, their heirs, executors, administrators, and assigns with the other shareholders.
Held: The covenant did not run with the land so as to bind assignees at law, and equity holding the conscience of the purchaser would not give the covenant a more extensive operation that the law would allow it.
National Provincial Bank v Ainsworth [1965] AC 1175, HL
The case concerns the quality of a person’s interest in a home when people live together as well as licenses in land.
Mr Ainsworth was a second hand car dealer and sole registered proprietor of the matrimonial home. He left the matrimonial home and moved with his mother. His wife obtained a judicial separation.
As part of the separation agreement, his wife was to live in the house rent free and would pay reduced maintenance to take account of this.
Mr Ainsworth later transferred the house to his company, and charged it to secure the debts of the company. He defaulted on payments and the National Provincial Bank sought possession of the property.
Mrs Ainsworth sought to defeat the claim based on an overriding interest of her right in the property coupled with her actual occupation.
Held:
The HL held that someone living in a home, who was deserted, did not by that fact alone have an interest in equity.
Lord Wilberforce offered a definition of property rights, however, this decision was compromised, and may not be counted as stable law, as the concept of constructive trusts was developed further.
‘Before a right or an interest can be admitted into the category of property, or of a right affecting property, it must be definable, identifiable by third parties, capable in its nature of assumption by third parties, and have some degree of performance or stability. The wife’s right has none of these qualities, it is characterised by the reverse of them.’
• The HL illustrates that ‘equity has passed the time of childbearing’.
• Equitable licence – not proprietary
o Licence by estoppel – these are the only licences that are proprietary.
Mrs Ainsworth proprietary right was not capable of amounting to an overriding interest. Her right in the house was merely personal. It did not confer on her any equitable estate or interest in the house.
CA
Lord Denning MR in the CA of appeal had the opposite view:
One of his reasons being that prior to the war it was recognised that the husband owns the matrimonial home and that he could not turn his wife out. Then he compares this to deserting the wife, a different action with the same effect –
‘it is the husband’s duty to provide the wife with a roof over her head; and by providing the matrimonial home, he gives her an authority to be there. It is an authority which he cannot revoke, so long as it remains the matrimonial home. He certainly cannot revoke it on his desertion.’
The problem with this judgment is that creating justice would create property rights and affect other titles.
• You cannot create new property rights
• Be careful
• Hence the Matrimonial Homes Act came up – wrong because you have to register the property (this has to be done at the beginning of the relationship implying that the relationship won’t last)
Ainsworth transferred the property indirectly as if it was business property.
Peter Sparkes, ‘Certainty of Property: Numerus Clausus or the Rule with No Name?’ (2012) 20 European Review of Private Law 769–804
The journal is an extended comment on ‘numerus clausus’ idea that property rights are limited and can be enumerated.
‘what is meant by umerous clausus…the basic idea… is that the categories of property rights should be fixed…whereas contracts can be bespoke and tailored to the needs of individual contracting parties.’
Numerus clausus attracts inconclusive conclusions:
• All property systems impose limits on the property rights recognised by the system (the Rule with No Name).
• The numerous clausus is a principle limiting real rights in codified systems of the civilian school. The principle is inherent in the nature of a code but is usually expressed in case law. A civilian umerous is intended to prevent fragmentation of ownership and to limit the burdens that can be imposed on land.
• A typical umerous clausus is under pressure from parties seeking to evade through contract, is compromised by the recognition of quasi property and suffers from gaps between property rights caused by inadequate tessellation between codified rights.
• A common law ‘numerus’ can only be applied to the totality of legal and equitable interests in property,
The Numerus Clausus and the Common law – definitions + academics
Wiki
The umerous clausus:
• A concept of property law which limits the number of types of rights that the courts will acknowledge as having the character of ‘property’. Several consequences follow from a right having the nature of property, as opposed to being a personal right like a contract or obligation to pay compensation.
• Historically the law has given remedies to holders of property rights over personal claims. These have included priority in payment from an insolvent debtor, a greater likelihood of being awarded specific performance and security in remaining in possession of land or some other asset against termination of the right to possess.
• In the UK it has been established that individuals cannot freely create new categories of rights themselves Keppell v Bailey + Hill v Tupper. The National Provincial Bank Ltd v Ainsworth with a more open approach, Lord Wilberforce stated that ‘Before a right or an interest can be admitted into the category of property, or of a right affecting property capable in its nature of assumption by third parties, and have some degree of permanence or stability.’
B McFarland in Landmark Cases in Land Law ch 1
Keppell v Bailey (1834); Hill v Tupper (1863 The Numerus Clausus and the Common Law)
The key questions raised by Hill is whether there is a valid distinction between cases such as Keppell, which concerns the position of C (A’s successor of title) and cases such as Hill itself, which instead concern the position of X (a stranger, who acquires no right from A).
It has been suggested that those rights present in Keppell + Hill can bind A’s successor in title but not a stranger, is comprised of equitable property rights; it has further been argued that such rights operate in this way as they arise whenever A is under a duty to B in relation to specific right held by A.
The umerous clausus is a well established feature of many civilian codes, a doctrine difficult to find in common law systems. Neither Keppell nor Hill refer to a umerous clausus principle; neither precedent. Nonetheless, the structure of English law can be deduced not only from legislation but from landmark case principles.
Keppell can thus represent the limits on A and B’s power to impose continuing burdens on successors to A’s property; and
Hill the limits on A and B’s power to impose additional burdens on strangers interfering with that property.
Aston Cantlow v Wallbank [2003] UKHL 37
NB: we are primarily interested in the HL’s obiter comments on the nature of a burden.
Cambridge Year Book of European Legal Studies: The European Union Charter of Fundamental Rights and Freedoms seems suitable but still leaves the question of imposition of legal responsibility mainly with private law making. For instance, in the Wallbank case.
♦ Here the HL had to consider whether private parties were bound by the Human Rights Act. This would be the case if they were performing a public action. Lord Nicholls’ obiter states”
¬ ‘There cannot be [given the test of universal application] given the diverse nature of government functions and the variety of means by which these functions are discharged today. Factors to be taken into account include the extent to which in carrying out the relevant function the body is publicly funded, or is exercising statutory powers, or is taking the place of central government or local authorities, or is providing a public service.’
• Lord Nicholls gave obiter comments, where a body may be classified as a mixed function authority in one case but still be able to avail of its rights under the ECHR in another when it is acting in a private capacity. This comment was obiter, therefore there is not yet definitive authority on the interplay between sections 6 and 7.
• Lord Nicholls suggested that a ‘hybrid’ authority will be embraced by section 6(3)(b) if it fulfils certain criteria such as whether it is publicly funded or is exercising statutory powers or is taking the place of central governmental/local authority or is providing public service. His view is consistent with the broad reading of the Human Rights Act 1998 (Jackson Anderson: Modern Sports Law)
• P 555 para 11.
CA – because it was the established church these things would give it a public status.
The bulk of the judgment addresses the status of the Parochial CC for the purposes of the HRA 1998. See also the CA judgment.
¬ Facts
♣ Lord Nicholls: The case concerns a difficult area of property law: The liability of an impropriator for the repair of the chancel of a church.
♣ Assuming the Human Rights Act 1998 is applicable, the overall question was whether the plaintiff’s prosecution of proceedings against Mr and Mrs Wallbank is rendered unlawful by section 6 of the act by a public authority which is incompatible with a Convention right, but it had to be considered whether the plaintiff was a public authority.
The creation of a new encumbrance or burden may engage Art 1. In most cases the owner will have created that encumbrance (land without any burdens) and so can hardly complain that his or her rights have been infringed. It is where that encumbrance has arisen, or is deemed to have arise, by operation of external legal rules that Art 1 may be engaged.
♣ Whether parochial church council constituting for purposes of human rights legislation a public authority or a public authority when enforcing liability for chancel repairs.
♣ Whether non-governmental organisation could be regarded as ‘core’ public authority for purposes of human rights legislation.
♣ Held
♣ The PCC was not a ‘core’ public authority for the purposes of s 6 of the 1998 Act and it did not become so when enforcing a lay rector’s liability for chancel repairs. This is because a person regarded as ‘non-governmental organisation within the meaning of the convention ought not to be regarded as a ‘core’ public authority for the purposes of s 6.
♣ Held –
♣ 1/ On appeal by the plaintiffs, allowed
• The a ‘public authority’ for the purposes of s 6 1998 Act could either be a core public authority or a hybrid authority. Although the Church of England had especial links with the government and performed certain public function, it was essentially a governmental religious organisation not a governmental one, the same with the Church which promoted a religious vision. The fact that the public had certain rights in relation to their parish church, was not sufficient to characterised the actions of the parochial church as being of public nature. As the plaintiff could not be regarded as a public authority within s 6 1998, it did not have to comply with convention rights.
♣ 2/ A person’s right to peaceful enjoyment of his possessions did not extent to the fact that they acquired property with full knowledge of the potential liability for chancel repair that in the land; that it was a burden which ran with rectorial land and was similar to any other burden which ran with that land.
♣ Lord Hope – says that chancel repair liability is a burden attached to lands.
Analyse CA and HL separately.
• HR is a shield protecting the state
• UNLIKE THE CA – it was horizontal and not vertical.
• Public body:
o HL CRA 1932
o This is an example of indirect horizontality.
• Possessing against a mortgagee or re-possessor operates HR
• HL – this was a case were the Wallbank was given the property (burdens), they did not buy it – not the same.
•
LRA 2002 sch 3 para 16
A right of repair in respect of a church chancel.
N Jackson ‘Overriding Interests’ (2003) 119 LQR 660
Nichola Jackson states that the Law Commission misidentified the way in which overriding interests threaten the conclusiveness of the land register. Therefore, a ‘reasonable inspection’ a feature of land law will remain until the equitable rights of home-sharers are either made to integrate more successfully within the registered land system or are dealt with effectively outside it.
Her main arguments:
♦ There is currently the possibility that a concealed overriding interest will arise between exchange of contracts, completion and registration of the purchaser’s title.
♦ Lord Wilberforce’s judgment in Boland, confirmed the general irrelevance of notice-based doctrines and observed that purchasers face being bound by interests that they could not reasonably have discovered.
Notes
The underlying principle of a system of land registration is that a person seeking to acquire an interest in land need only check the register to determine if the land is subject to any adverse interests. A person possessing an interest in land needs to take action to protect that interest by entering it on the register. Generally, a purchaser will take free of any interests not on the register, however this is not absolute. Determining priority of competing interests in registered land will vary depending on the type of interest involved.
LRA 2002 ss 28, 29
• S 28 – sets out the rule that priority between interests in registered land are determined by the order of creation. An earlier interest will prima facie be given priority over a later. This rule is subject to s 29 and s 30 and thus comes into play when these do not.
• S 29 – a registered disposition (self explanatory of a charge) for valuable consideration will take priority over unprotected interests. Protected interests include a registered charge* (A charge is a creature of equity (technically there is no such thing as a legal charge although a “legal charge” may be created by statute, and a legal mortgage over land is commonly known as a legal charge. Essentially a charge creates an equitable proprietary interest in the asset being secured), or those subject to a notice on the register, overriding interests or those excepted from the effect of registration. For s 29 to become effective there must be:
♦ 1. Valuable consideration
♦ 2. A registrable disposition
♦ 3. Registration
¬ Valuable consideration: The disposition must be for valuable consideration in order to take priority. With the exclusion of gifts and succession on death s 132(1). Midland Bank v Green it was decided that £500 against £40,000 was more than nominal.
¬ Registrable disposition: Registrable dispositions are set out in s 27. This excludes equitable mortgages. There are special provisions for leases under 29(4). A forged transfer does not qualify as a disposition.
¬ Registration: Priority is only given once the disposition has been registered. The transaction must be complete using the required formality s 25 prior to registration.
TO SEE WHICH TO apply see whether land has been moved to one from another
In 28 there is one single proprietor who creates a transaction to some one else
• You can sell an option (contract – enforceable unilaterally wider category) an option is not as opened.
• Will also be relevant for contracts with equitable mortgages.
• If we have a contest between two people which are on the register, the contest is determined when the first in time prevails
In 29 the registered title is moving.
Boland – a sale of the land on mortgage of the land.
• Will be relevant if we have a legal mortgage.
o The question is whether the person is bound by prior interest of X.
o Boland case
♣ Mr Boland was registered
♣ Mrs Boland had contributed – she had an equitable interest. Because she was in occupation she had an overriding interests (rights which bind without being entered on the register)
o 1.
o 2. Register entries
o 3. Registration – overriding interest/ talk about whether this is an Overriding interests which can be legal or equitable.
o 4. You do not have to worry about rights that you do not know and which are not on the register.
SEE WHETHERE there is a disposition which results in a disposition of the land being sold, in this case some one knew the land was registered. In this principle, the object is to make sure that you get what you paid for, and your conveyancing should have discovered. So check the register, for occupiers, for overriding interests. But you would take free which do not fall within these categories – so get what you paid for.
You value the house taking account from what you looked into.
The rule makes sure that the register is useful in transaction, which things on the register will not be binding.
Draw a distinction between the mortgage you use to buy the property and the one to improve it, this is the problem Boland.
Freeguard v Royal Bank of Scotland (2000) 79 P & CR 81 CA
• Facts
♦ The Freeguards sold some land to developers, they retained two areas of land from which development of the adjacent plot would not be possible. The Freeguards did not want the owners of the adjacent plot to know of their intentions related to the fact that the area was ripe for development. Therefore, they convinced the developer to participate in a plan where the land would be pass to him with the condition that the Freeguards would retain an option to repurchase.
♦ Mrs Freeguard did not protect her interest by any entry against the developer’s registered title.
♦ Moreover, the developer executed a charge over the land to the Royal Bank of Scotland. The bank did not register the charge but relied upon possession of the developer’s land certificate as an equitable charge.
♦ The developer sought a voluntary arrangement under the Insolvency Act 1986.
♦ At first instance the court held that the charge in favour of the bank had priority over Mrs Freeguard’s option to purchase. On appeal:
• Held
♦ Dismissing appeal.
♦ Mrs Freeguard’s failure to register any notice on the register was sufficient for postponing her rights. Additionally, the Freeguards entered into an artificial transaction designed to deceive the developer that he was the (unencumbered – without burdens) owner of the land could deal with it as he pleased.
Clark v Chief Land Registrar [1994] Ch 370 CA
• MAIN POINT FROM CASE:
♦ The Law Commission recommended the abolition of cautions against dealings because they were not an effective method of protecting an interest in land. This became apparent in this case.
♦ This case confirmed that a caution did not provide the cautioner (so the holder of a charging order) with the protection believed by registering a caution. A caution simply secures a right to be notified of any dealing with land affected by a caution.
♦ Notices: A third party who has an interest in a particular piece of land my register a notice against the property’s title register. By registering a notice, a party who has an interest in the land may prevent another individual from purchasing the land free of the interest. The notice does not necessarily confirm that the third party has a valid interest – only that they claim to have one.
♦ Caution against first registration: Used where the interest in an estate that is unregistered and the cautioner’s interest would entitle them to object to any application for first registration until their claim has been considered.
♦ Charge: a creature of equity, creates an equitable proprietary interest in the asset being secured.
♦ Legal charge: created by statute, for example, a legal mortgage is commonly known as a legal charge.
♦ Indemnity: a protection from damage, injury, financial loss or legal liability.
♦ Disposition: The act of transferring property to another’s care or possession usually by deed or will.
• In the first case, two debtors owned land, subject only to a mortgage in favour of a bank. The plaintiffs who were creditors obtained a charging order on the debtors’ interest in the property which they protected by a caution.
• The second defendant advanced to the debtors a sum of money secured by a legal charge on the property. The Land Registry failed to give notice to the plaintiffs a declaration that they were entitled to an indemnity from the first defendant. The judge held that the plaintiff’s charging order created a charge over the legal estate in the debtors’ land which was held under the statutory trust for sale rather than over the proceeds of sale. Hence, a registration of a caution to protect that interest in the land did not confer priority on that interest over the charge subsequently registered by the second defendant. Therefore, the failure by the Land Registry to give the plaintiffs the notice caused them loss and were entitled to an indemnity.
• 2. In the second case, property developers agreed to grant the defendant a long lease of a flat. A caution to protect the defendant’s contract in respect of the flat was registered in the Land Registry. The developers thereafter negotiated loan facilities from the plaintiffs, agreeing to grant them a charge (a charge creates an equitable proprietary interest in the asset being secured) over the freehold of the premises. The defendant consented to the registration of a legal charge in favour of the plaintiffs which was entered in the land register. The defendant went into occupation of the flat without any lease having been executed and obtained an order against the developers for specific performance of the agreement to grant him a lease. The judge granted the plaintiffs a declaration that they were entitled to deal with the flats free of any rights therein of the defendant.
• On appeal by the Chief Land Registrar in the first case and by the defendant in the second case
• Held
♦ Dismissing both appeals:
♦ 1. The imposition of a caution at the Land Registry to protect the cautioner’s interest in land did not achieve priority for that interest against subsequently registered charges. Accordingly, the second defendant’s charge in the first case and the PLAINTIFF’s charge in the second case had priority over the cautioners’ charging orders (THE DEFENDANTS’); and that in the first case the Land Registry’s error in failing to give the plaintiffs notice had caused them loss they were entitled to an indemnity from him.
Chap – quick points
ϖ The LRA provides a distinct scheme of priority rules for a category of transactions. C has a defence against the enforcement of B’s pre-existing property rights, except those that are entered on the register by a notice (the defence of lack of registration) or binding as an overriding interest. The disposition must also comply with any limitations on A’s owner’s powers recorded on the register by entry of a restriction.
Midland Bank v Green
This is a case of unregistered land and say so because all your questions are about registered land.
ϖ Notes on the case:
¬ Without registration charges would be void, but once registered, those charges would bind everyone. The registration would go against the name of the title holder. If an official search of the register did not reveal any titles, then the purchaser would gain good legal rights.
¬ One apparent injustice is that the HL held the registration rules to be strict. In Midland Bank v Green, Walter Green gave his son an option to buy the property but did not register it. Then Walter changed his mind, and knowing that his son had not registered this estate contract, he transferred the property to his wife for £500 to defeat the agreement. Although the purchaser had actual notice of the son’s equitable interest, it did not matter because it was not registered.
ϖ Facts
¬ Walter Green granted an option to purchase a farm to his son Geoffrey Green. The option was not registered under the Land Charges Act. Upon changing his mind, Walter sold the farm to his wife for £500 (it was worth around £40,000). Geoffrey learnt of the sale and sought to enforce the option.
¬ The question for the court was whether the option was binding on the wife or whether she took the farm free of the option.
¬ The court considered the statutory provision with regard to the contract being void for insufficient consideration in this case for money or money’s worth.
¬ Held
♣ The trial judge found for the wife and held that the option was not binding on her
♣ This was reversed by the CA with Lord Denning MR holding that the sale was not for money or money’s worth (insufficient consideration) and that the Act was not available in cases where there was a deliberate attempt to defeat an interest.
♣ Lord Denning:
• ‘The consideration was totally inadequate;
♣ In the HL – The wife’s appeal was allowed. There was no requirement of good faith for a purchaser under the LCA. Reference to money or money’s worth excluded marriage consideration but did not require the consideration to be adequate.
♣ This is contrary to the doctrine of notice (irrelevant to the outcome of the case), where good faith would have been relevant, and where the outcome of the case would have been up to the discretion of the court.
• Lord Wilberforce:
• ‘Suppose – and this may not be far from the truth – that the purchaser’s motives were in part to take the farm Geoffrey, and in part to distribute it between Geoffrey and his brothers and sisters, but not at all to obtain any benefit for herself, is this acting in ‘good faith’ or not?’
• ‘This conclusion makes it unnecessary to determine whether £500 is a nominal sum of money or not. But I must say that for my part I should have great difficulty in so holding.’ ‘Nominal consideration’ and a ‘nominal sum’ in the law appear to me, as terms of art, to refer to a sum or consideration which can be mentioned as consideration but it not necessarily paid. To equate ‘nominal’ with ‘inadequate’ or even ‘grossly inadequate’ would embark the law upon enquiries which I cannot think were contemplated by Parliament.’
Some interests in unregistered land are capable of being protected by registration as land charges. The register is a names based system rather than a land based system which has caused difficulties. S 2 LCA sets out the classes of land charges: classes A-F.
Notes
• The question is whether the law would be better if Lord Denning’s interpretation would have been taken on it.
• There is fundamental division between registered and unregistered land
o If the land had been registered and the son was in occupation, then he could have had an overriding interests – opposite effect – so he could have brought an action against fraud on these grounds, but this was not the case.
LCA 1972 s 4
♣ S 4 is when land charges are void against the purchaser if certain criteria is met.
• Where a land charge is not registered, the land charge will be void where the statutory conditions are met. A person meeting the statutory criteria will acquire the land free of the unprotected interest. The statutory conditions are different depending on the class of land charge:
♦ Class A
♦ Class B, C (I) (II) (III)
♦ Class C(IV) D
¬ S 4(6) provides that an estate contract and a land charge of Class D created or entered into on or after 1st January 1926 shall be void as against a purchaser for money or money’s worth of a legal estate in the land charge with it, unless the land charge is registered in the appropriate register.
¬ The meaning of money or money’s worth was considered in Midland Bank v Green –
♣ See the case.
¬ A void land charge may be held to be binding in instances of fraud, express agreement and estoppel
♣ Fraud: A void land charge may be binding due to purchaser’s fraud. Actual knowledge of the existence of the land charge and a deliberate attempt to defeat the land charge will not always indicate fraud
• Midland Bank v Green.
♣ Express agreement
♣ Estoppel
♦ Class F
♣ There is no scope in these provision to impose the doctrine of notice. Where B holds a property right that is registrable as a land charge and has not been registered, the statutory protection by s 4 LCA 1972 provides the purchaser with a complete defence against the enforcement of B’s property right.
Notes
• Overriding interests constitutes a category of property rights that do not appear on the register, but which are immune from the defence of lack of registration.
• The Law Commission’s rationale for keeping these type of overriding interests is that there are circumstances in which it is unreasonable to expect B to register his or her property right to secure its enforcement.
• The 2002 Act provides two distinct list of overriding interests: those overriding at first registration sch1; and those overriding on a disposition of a registered estate, sch3.
Proprietary rights held by people in actual occupation
• Property rights held by persons in actual occupation are given the status of overriding interests in sch3 para 2.
• Note that occupation is the trigger for protection but not the subject of protection.
• A question arises with regard to equitable easements –
o Chaudhary v Yavuz
♣ Mr Chaudhary argued that he was in actual occupation of the land over which he had an equitable easement
♣ Lord Lloyd suggested ‘at first sight it seems pation of other land…over which he asserts an easement’
♣ Mr C could not establish actual occupation. Claim failed.
o Analysis point – McFarlane points out
♣ Suggests that an easement cannot constitute exclusive occupation, however, its exercise could constitute occupation, for example the storage of goods or the parking of a car.
♣ He further suggests that there is no reason in principle why an equitable easement should not be protected under sch3 para 2 (2002 Act) where occupation consistent with the exercise of an easement can be established.
♣ Prior to the 2002 LRA the property rights of occupiers were protected as overriding interests in s70(1)(g) of the LRA 1925.
• The time of disposition is key, as seen in Wallcite: only those property rights held by B at the time of the disposition are protected. As B’s occupation is the trigger for protection it is equally clear that B must be in occupation at the time of disposition.
o Lord Denning MR in Strand Securities Ltd v Caswell
♣ ‘Fundamentally its object is to protect a person in actual occupation of land from having his rights lost in the welter of registration. He can stay there and do nothing. Yet he will be protected. No one can buy the land over his head and thereby take away or diminish his rights. It is up to every purchaser before he buys to make inquiry on the premises. If he fails to do so, it is at his own risk. He must take subject to whatever rights the occupier may have.’
