as Sir Courtenay Ilbert says, 'at this hour, the spokesman, the acknowledged and honoured spokesman, of all those who, in any quarter of the globe, speak the English language and have inherited and developed English traditions. He is more than that. He is the greatest international man in the world. He is, for men of every race, creed, and tongue, the foremost champion of freedom against military despotism. And for this reason we all unite in paying him a grateful meed of honour.'

Viscount Erleigh, the only son of the Lord Chief Justice, who has been at the Front for the past two years, has now won the Military Cross for 'services in Viscount Erleigh was called to the Bar in

the field."

1912.

W. E. WILKINSON.

REGISTERED JUDGMENTS AND REGISTERED OWNERS.

Many questions arise in law where even Courts of Appeal differ, and an interesting point came under my experience last year in connection with our system of registration under the Torrens Title system. The question in that case was a serious one, insofar as a matter of some $8,000 was at issue, and it was sought to compel a purchaser to pay a second time on the authority of Robinson v. Moffatt, infra, but the judgment creditor failed owing to a lapse of the lien by reason of his renewing the judgment some two or three days beyond the two-year period. The question upon which there may be a difference of opinion may be expressed as follows:

Does a certificate of judgment under the laws of the Province of Manitoba, registered in a Land Titles Office bind the interest of an unpaid vendor, who is the registered owner of lands, under a contract for the sale of land where there are certain instalments of the purchase price still unpaid?

A number of years ago the Western provinces experienced a great variety of decisions on the effect of the forfeiture clauses in agreements of sale of land, and perhaps this is one of the many interpretations of the effect of such a contract.

It is interesting to note the elementary nature of an agreement of sale. The agreement provides that the vendor agrees to sell and the purchaser agrees to purchase certain lands, at a price payable by instalments at certain specified periods, and then says: ' in consideration whereof and on payment of all sums due the vendor agrees to convey the said lands to the purchaser by a transfer under the Real Property Act,' etc. Does it seem on the face of these provisions that the vendor, after executing such contract, has divested himself of all interest in the land?

To work out the problem it is necessary to look at the provisions of the Judgments Act, being R. S. M. 1913, ch. 107, sec. 3 of which Act provides: That a certificate of judgment shall bind and form a lien and charge on all the lands of the judgment debtor in the several districts in the Registry Offices and Land Titles Offices in which such certificate is recorded, the same as though charged in writing by the judgment debtor under his hand and seal." Lands are defined by sec. 2, sub-sec. "F," to include all real property and every estate, right, title and interest in land or real property, both legal and equitable, and of whatsoever nature and kind,' etc.

It may not be out of place to say that the Land Titles Offices in the province of Manitoba have, following the decisions in certain cases, been treating this matter as if the certificate of judgment did not attach any of the unpaid purchase price. Recently in the province of Ontario, a decision has been given in the case of Robinson v. Moffatt, which is in direct variance with certain Manitoba decisions, and the decision of that Court is a decision of a Court of Appeal, and says in effect that the registered judgment does attach.

The case of Park

First, let us consider the Manitoba decisions. The chief authority in Manitoba is the case of Bank of Montreal v. Condon,2 where Chief Justice Taylor gave a judgment, and said that "a vendor's lien is not an interest in land," and, on p. 369, quotes certain decisions in support of that. v. Riley was cited in support. On close examination of that case the quotations are not accurate. In that case the vendor assigned all his interest in the land by parol before execution was placed in the sheriff's hands and, consequently, at the time of placing execution in the sheriff's hands, the vendor had parted with

137 D. L. R. 52. 211 Man. 368. 33 E. & A. 215.

VOL. XXXVIII. C.L.T.-30

all his interest in the land. There is also a statement in the judgment that the interest is personal estate and not real estate, and a quotation from Dart on Vendor and Purchaser, 6th edition, p. 293, which says: "Upon the death of a vendor unpaid purchase money forms part of his personal estate." This quotation is quite true to the extent that if the representatives of the deceased were to claim the money as a mere debt it would to that extent be personal estate; but if the representatives wish to enforce their lien against the land they could do so and sell the land to realize the lien, and to that extent the interest would be an interest in real property. There should have been cited to Chief Justice Taylor the quotation in the same edition of Dart, p. 289, where it says, 'the vendor has a lien upon the estate for the unpaid purchase money,' and prior to 27-28 Vict. c. 112, 'a judgment entered up against the vendor and subsequently to the contract and registered was a lien upon the unpaid purchase money, and consequently to that extent upon the land itself,' and 'an extent upon Crown process at any time before conveyance binds the purchaser although he has paid the purchase money.' Also see p. 540, where it says, 'a judgment entered up against the vendor after a contract for sale as formerly may be enforced against the unpaid purchase money although execution may not be levied upon it.' The above statute, 27-28 Vict. c. 112, was passed expressly to annul the operation of the law as it existed then so as to prevent a registered judgment binding the unpaid purchase money.

It is interesting to note the effect of 1-2 Vict. (Eng.) c. 110, s. 13, which is similar somewhat in effect to the Manitoba statute, and said that a judgment operates as a charge on all lands of the judgment debtor at the time of entering up the judgment, and binds all his estate or interest whatsoever at law or in equity. It seems then that the English statute of 1864 was passed expressly to annul the effect of the law following 1-2

Vict. ch. 110. Compare the last mentioned statute with the present Manitoba statute. Dart, also, at p. 293, says it has been held that where the vendor of an equitable estate died before completion his heirs were necessary parties to the conveyance. If the interest of the unpaid vendor was merely an interest in personal property, why should it be necessary to make the heirs a party to the conveyance? The Condon Case also, on p. 369, gives another quotation referring to Perry on Trusts, p. 238, and says that a vendor's lien is not an estate in land nor is it a charge on the land. The latter clause in this sentence does not seem to be a correct statement, for it is an undoubted fact that the lien of the vendor in land is such that any action. may be brought asking the Court to sell the land to enforce such lien, and such lien takes effect in priority over any mortgage or other charge that may be created by the purchaser after the date of the contract for sale. Following Bank of Montreal v. Condon, Chief Justice Mathers in the case of Bain v. Pitfield, gave a decision, reported 26 Man. 89, but he merely determines that case on the authority of the Condon Case.

To continue the argument then, note the case of Robinson v. Moffatt, where it is said that a writ of execution against the goods and lands of the defendant placed in the hands of the sheriff for execution after the contract was made, but at a time when the greater part of the purchase money remained unpaid, bound the unpaid purchase money, and it is interesting to read the judgment of Meredith, C.J., on p. 55, where he says:

"Both at law and in equity the vendor is the owner of the land in the sense of having the lawful title to it; the purchaser has only an equitable right to it; but to that extent, if the agreement be carried out, is treated in equity as substantially the owner, the real owner, or formal owner, if you choose to call him such, though that would not be strictly accurate; the vendor is a trustee for the purchaser, but bound to convey to him only on fulfilment by the purchaser of all things agreed to be done on his part before getting the conveyance. An agreement may never be carried into