Registration Systems and Priorities - Key Cases

Question 1

Tourville v Naish [1734] (Court of Chancery)

Answer 1

• Talbot LC:
• If the person who has a lien in equity of the premises, gives notice before actual payment of the purchase money, it is sufficient
• Purchaser has no remedy at law but does have equitable remedy

Question 2

Case Note – The Agra Bank Ltd v Barry [1871] (Court of Appeal in Chancery)

Answer 2

• The Lord Justice of Appeal:
• Sir George Turner in Hewitt v Loosemore – Legal mortgage not postponed to a prior equitable one on the grounds of not having got the title deeds unless legal mortgage fraud or gross or wilful negligence; not imputed where made bona fide inquiries for the deeds, only if omits all inquiries; make enquiry and reasonable excuse given, no ground for imputing suspicion and consequential notice

Question 3

AIB v Glynn

Answer 3

Does an equitable estate acquired by a bank, who held a land certificate as a security, prevail over the previously reserved rights in the conveyance of the land to another person?
* Kenny J:
- Facts of case
- National Provincial Bank Ltd. v. Ainsworth – Lord Upjohn emphasised that “an equity” does not create an estate or right in land.
- S29(3) 1891 Act – Registration of a person as owner could be made subject to any rights or equities arising from the interest vested in him being deemed to be a graft upon his previous interest in the land, it meant that estates or interests existing at the time of registration were enforceable against the registered owner, not equities.
- A purchaser or mortgagee of an equitable interest who takes in good faith without notice of a claim or the facts giving rise to it is not bound by it (Lord Westbury in Philipps v Philipps and Fry J in Bainbrigge v Brown)
- Land Certificate – Notice of burden on equitable estate

Question 4

Case Note – O’Connor v Stephens [1862] (Court of the Exchequer)

Answer 4

Unregistrable document v registered document
* Pigott CB:
- Facts of case
- Not the intention of the Legislature/absurd and unjust

Question 5

Forbes v Deniston [1722] (House of Lords)

Answer 5

What happens in the following scenario? A sells land to B. Transaction not registered but could have been. A subsequently sells the land to C. C is aware of the transaction (aware of the fraud).
- Avoid fraud

Question 6

Le Neve v Le Neve [1747] (Court of Chancery)

Answer 6

• Whether there is sufficient equity for the plaintiffs to get the better of the legal estate vested in the defendant’s trustee, who is a purchaser for valuable consideration which will depend on the point of notice, and the consequences of it.
• Lord Chancellor:
• Facts of case
• Question 1 = Whether it sufficiently appears, that one Norton was agent or attorney for the second wife? – Same counsel can be employed by both parties, key thing is that was employed – Brotherton v Hatt
• Question 2 = Whether there is sufficient evidence of notice to him of the first articles; such as will be admitted according to the rules of this court? – Evidence that Norton had knowledge
• Question 3 = Supposing there is sufficient evidence, whether in equity it will affect the defendant’s purchase, and oblige the court to postpone the second articles and settlement to the first; notwithstanding the registry act?
• Sub-issue 1 – Whether any notice would take away the benefit of the act from the defendant, a purchaser for valuable consideration? – The intent of the preamble of the act was to secure subsequent purchasers and mortgagees, against prior secret conveyances, and fraudulent incumbrances; for the last of which there was no occasion to provide; Answer = Yes; Forbes v Denison – Fraud; Blades v Blades – Lord King = BF purchaser gets legal estate; = Taking the real estate after notice of a prior right for valuable consideration was a fraud, and took away the bona fides of the second purchaser, making it mala fides ; which is agreeable to the definition of fraud in the civil law
• Sub-issue 2 – Whether notice to the agent would do so? – Yes as in Forbes

Question 7

Re Fuller: O’Connor v McCarthy [1982] (HC)

Answer 7

• Costello J:
• Facts of case
• Goodyear Tyre & Rubber Co. (Great Britain) Ltd. v. Lancashire Batteries Ltd – Lord Evershed MR = Notice less than full knowledge, brought clearly to person’s attention, sufficient notice matter for courts
• Bank of Ireland v Rockfield Limited
• Actual notice of a prior unregistered deed has priority over a later registered deed (Madden’s Registration of Deeds) and same in Wylie’s Irish Land Law
• Wylie – Rumours not knowledge; Same by Lord Cairns in Lloyd v Banks
• Current case – Information not precise or reasonable source (Plaintiffs reasonable businessmen)
• Agra Bank Ltd v Barry – Deliberately avoid making enquiries – Endorses principle but not applicable in this case
• Mala fide purchasers not taking advantage of the statute but not MF purchasers in this case

Question 8

Reilly v Garnett [1872] (CoA in Chancery Ireland)

Answer 8

• Lord Justice of Appeal:
• Facts of case
• A purchaser for value, without notice of a prior but unregistered equity, may, generally speaking, protect himself with either of two safeguards – The legal estate and the Registry Act
• Present case
• Registry Act – Only actual notice is sufficient
• Current case – Contract of purchase completed before notice from conversations
• Re McKinney’s Estate – Judge Lynch = An unregistered title or right is binding upon the grantor himself, and upon all who claim under him as volunteers. His heir or devisee is bound by everything which bound the ancestor or testator, registered: or unregistered, known or unknown
• Plaintiff entitled to decree

Question 9

Kingsnorth Finance Co Ltd v Tizard [1985] (Chancery Division

Answer 9

• Judge John Finlay QC:
• Facts of case
• Wife’s substantial financial contribution to the property deposit and mortgage payments
• Williams & Glyn’s Bank Ltd v Boland (wife equitable interest due to substantial purchase price contribution)
• Present case
• Halsbury’s Laws of England
• Reference to son or daughter – Clue that married as not widower
• Section 199(1)(b) Law of Property Act 1925
• Caunce v Caunce
• Williams & Glyn’s Bank Ltd v Boland
• “The plaintiffs, would clearly either have learned of her rights by inquiry of her or been fixed with notice of those rights had not inquiry of her been made

Question 10

Case Note – Friends Provident Life Office v Michael Joseph Doherty and
Deirdre Doherty v Michael Joseph Doherty [1991] (HC)

Answer 10

• Blayney J:
• Facts of case
• Mrs Doherty had s72 interest
• Halsbury (4th Edition) para. 1592:
• Conduct made believe no interest
• The Dohertys were being advised by their own solicitor, so there was no reason to think that Mrs Doherty would not have everything fully explained to her
• Barrington J, in H.(A.) v H.(F.), High Court, 20 June 1989