10

An unregistered instrument is not by sec. 71 rendered void for all purposes. It is valid as between the parties to it,1o and is void only as against a person taking for valuable consideration" and without notice under a subsequent registered instrument. The section appears to leave untouched the equitable rule that a person claiming under a voluntary instrument takes subject to earlier changes, even though he has no notice of them.

A grantee for value, who takes without notice of an earlier conveyance from the same grantor, and who registers his conveyance before the registration of the earlier conveyance, may maintain an action to have the conveyance in his favour declared entitled to priority over the earlier conveyance, but he is not entitled to have the earlier conveyance cancelled or to have registration of it vacated.12

3. Effect of Registration as Notice.

The original Registry Act of 1795 did not provide either that priority of registration should prevail or that the registration of an instrument should constitute notice to anyone. It was therefore held that where a mortgagee took a subsequent conveyance of the land as security for a further advance (giving a bond to reconvey on payment of the whole debt), he was entitled, by virtue of the doctrine of tacking, to

10 One Sootheran, having obtained a conveyance of land from one of the defendants and registered it, executed, more than ten years before action, a reconveyance to both defendants endorsing thereon a forged certificate of registration, and later, within ten years before action, mortgaged the land to the plaintiffs, who had no notice of the reconveyance. It was held that the reconveyance was void as against the plaintiffs, and that the defendants were not protected by the Limitations Act, because the reconveyance was valid between the parties thereto, and no action could have been brought against the defendants before the date of the plaintiffs' mortgage. McVity v. Tranouth, [1908] A. C. 60, reversing 36 Can. S. C. R. 455, 9 O. L. R. 105.

11 Miller v. Halifax Power Co. (1915), 48 N. S. R. 370, 24 D. L. R. 29.

12 Weir v. Niagara Grape Co. (1886), 11 O. R. 700.

priority as to the whole debt as against a mere registered encumbrance of which he had no notice.13 The law was changed in 1850 by the enactment of a provision specially directed against the doctrine of tacking, and of a provision that the registration of an instrument should in equity constitute notice thereof to all persons claiming any interest in the land subsequent to such registration."

The Registry Act, R. S. O. 1914, ch. 124, sec. 75, provides as follows:

75. The registration of an instrument, under this or any former Act, shall constitute notice of the instrument, to all persons claiming any interest in the land, subsequent to such registration, notwithstanding any defect in the proof for registration, but nevertheless it shall be the duty of a registrar not to register any instrument, except on such proof as is required by this Act.

Under this section the effect of registration is that even a mere equitable interest, for instance, under a registered assignment of the benefit of an agreement for the purchase of land, will be good as against a subsequent mortgagee or grantee of the legal estate.15

A subsequent purchaser takes subject to an instrument which is in fact upon the registry, notwithstanding that the proof of execution is defective,16 unless, perhaps, in the case of a registration which is a nullity by reason, for instance, of the absence of any affidavit of execution.17

Registration of a mortgage on lands before the issue of the patent from the Crown does not constitute notice to a person who afterwards obtains the patent without actual notice of the mortgage.1

18

13 Street v. Commercial Bank of the Midland District (1844), 1 Gr. 169. The judgment of Robinson, C.J., contains an elaborate discussion of the doctrine of tacking.

14 13 & 14 V. c. 63, ss. 4, 17; C. S. U. C. 1859, c. 89, ss. 56, 47. A provision as to tacking is now contained in s. 73. See heading number 5, infra.

15 Cope v. Crichton (1899), 30 O. R. 603.

18 Rooker v. Hoofstetter (1896), 26 Can. S. C. R. 41, affirming 22 O. A. R. 175.

17 S. C. 26 Can. S. C. R. at p. 46; Murchie v. Theriault (1898),

1 N. B. Eq. 588.

18 Re Reed v. Wilson (1893), 23 O. R. 552.

Prior to 1893, it had been held that entry of an instrument in the registry books at full length was necessary in order to constitute registration, and that the receipt of the instrument by the registrar was not sufficient;19 though the mere omission of the registrar to index an instrument would not deprive it of priority.20 In that year, however, the statute was amended 21 by the addition of the provision which is now contained in R. S. O. 1914, ch. 124, sec. 80, as follows:

80.—(1) An instrument capable of and properly proved for registration, shall be deemed to be registered when and so soon as the same is delivered either personally or by post to and received at his office during office hours by the registrar or some officer or clerk in his office on his behalf, and thereafter no alteration shall be made by any person in such instrument.

4. Notice Received Prior to Registration.

In 1865 22 was first enacted the provision which is now R. S. O. 1914, ch. 124, sec. 72, as follows:

72. Priority of registration shall prevail unless before the prior registration there has been actual notice of the prior instrument by the person claiming under the prior registration.

The word 66 person " has replaced the word party as contained in the original statute. It means one who is "party "to the registered instrument under which priority is claimed over a prior unregistered instrument, and does not include any person who merely claims under the instrument through subsequent instruments. Therefore where a third

19 Lawrie v. Rathbun (1876), 38 U. C. R. 255.

20 Lawrie v. Rathbun, supra; Green v. Ponton (1885), 8 O. R. 471; Jost v. McCuish (1893), 25 N. S. R. 519; cf. Siemens v. Dirks (1913), 23 M. R. 581, 14 D. L. R. 149, as to registrar's omission to endorse a certificate of registration.

22 29 V. c. 24, s. 65, re-enacted by 31 V. c. 20, s. 67 (Ont.). Prior to 1865 it was only in a court of equity that relief could be given against a person who claimed by virtue of prior registration but who had actual notice of an earlier instrument: Millar v. Smith, 1873, 23 U. C. C. P. 47. Before the creation of the Court of Chancery in 1837, there was no court at all which could give relief in such a case: Doe dem. Pell v. Mitchener, 1831, Draper, 471.

mortgagee registered his mortgage before the registration of the second mortgage, it was held that an assignee of the third mortgage whose assignment was registered subsequent to the registration of the second mortgage, was not "the person claiming under the prior registration " within the meaning of sec. 72.23

24

If sec. 72 is strictly read, it means, perhaps, that a party claiming under an instrument who takes without notice and for value, but who before registering his instrument receives notice of an earlier unregistered instrument, takes subject to it. In Millar v. Smith, there are some dicta that this is the effect of the section, but in that case the subsequent purchaser had actual notice of a prior unregistered instrument before the execution of the subsequent conveyance, and the decision was merely that the predecessor of sec. 72 enabled a court of law to give equitable relief against a person taking with actual notice, and that there should be read into the predecessor of sec. 71 the words" without actual notice." 25 In Peebles v. Hyslop the same question was discussed as to the effect of notice of an earlier instrument received by a subsequent purchaser after delivery of the subsequent deed but before registration; and the opinion was `expressed that relief might be given to a purchaser in such a case notwithstanding the wording of sec. 72.

23 Heney v. Kerr (1914), 30 O. L. R. 506, 19 D. L. R. 597. In fact the third mortgagee had actual notice of the second mortgage, but the decision, it would seem, would have been the same even if the third mortgagee had taken without notice. He would have had priority over the second mortgagee by reason of the prior registration of his mortgage, and his assignee would have had the same priority if he likewise had taken without notice and the assignment had been registered before the registration of the second mortgage. The assignee was, however, postponed not only because his assignment was registered after the registration of the second mortgage but because actual notice to him was also proved.

24 1873, 23 U. C. C. P. 47; cf. Peterkin v. McFarlane (1881), 9 O. A. R. 429, at p. 465; S. C. sub. nom. Rose v. Peterkin (1885), 13 Can. S. C. R. 677, at p. 710.

25 As pointed out above these words were inserted by statute in 1873. See heading number 2, supra.

26 (1914), 30 O. L. R. 511, 19 D. L. R. 654.

It was not, however, necessary to decide the question.27

5. Unregistered Equitable Claims.

Prior to 1865 the Registry Acts contained a proviso that nothing therein contained should be construed to affect the rights of equitable mortgagees as now recognized in the Court of Chancery in this province," and, generally speaking, any equitable interests not expressed in a written instrument were outside of, and not affected by, the Registry Act.20 In that year, however, the statute was amended.30 The provision in question was omitted, but on the other hand the class of instruments which might be registered was enlarged so as to include practically every kind of instrument affecting land, and in addition to the provisions already mentioned, there was enacted the provision which is now contained in R. S. O. 1914, ch. 124, sec. 73, as follows:

73. No equitable lien, charge or interest affecting land shall be valid, as against a registered instrument executed by the same person, his heirs or assigns; and tacking shall not be allowed in any case to prevail against the provisions of this Act.

Thus the statute of 1865 not only deprived equitable charges of the exemption from the operation of the Registry Act which they had theretofore enjoyed, but, so far as they might be created by a written

27 Owing to the fact that the prior instrument was not registered at all prior to the judgment in the action, the present s. 71 alone was applicable. If both instruments had been registered it would have been necessary to consider s. 72, whereas under s. 71 the person taking under the instrument without actual notice of an earlier unregistered instrument obtains priority by registration, even though he receives notice of the unregistered instrument in the interval between the delivery of his own instrument and its registration. Peebles v. Hyslop, supra.

28 13 & 14 V. c. 63, s. 3; C. S. U. C. 1859, c. 89, s. 53. It was of course only since the creation of the Court of Chancery in 1837 that equitable charges on land were recognized at all in Upper Canada. 29 McMaster v. Phipps (1855), 5 Gr. 253; cf. Oxley v. Culton (1899), 32 N. S. R. 256.

30 29 V. c. 24, re-enacted, so far as the present subject is con cerned, by 31 V. c. 20.