The Gazette 1927-30

The Gazette of the Incorporated Law Society of Ireland.

[MAY, 1927

Registration of Title.

The Registrar has sent

the

following

Memorandum, with a request for its publica–

tion in the Society's GAZETTE :

Attention is drawn to the difficulties and delays

in registration caused by the omission of Solicitors

for purchasers to obtain the concurrence of the

necessary parties to transfers of registered land sold

under Orders of the Circuit Courts in mortgage and

other suits.

It should be clearly understood that the parties

necessary to a conveyance of unregistered land on a

sale through the Court are also necessary to a

transfer on a sale of registered land.

On a sale of unregistered land under an Order,

the purchaser, to perfect his title, must obtain a

conveyance

from the owner and all persons appearing

on the title to have incumbrances on it; or

ii.

from the first mortgagee exercising his

power of sale and conveying the land free

from all incumbrances to which his mortgage

has priority.

(See Conveyancing Act,

1881, S. 21 (1).

In the same way, on a sale of registered land

under an Order, the purchaser should obtain

i. a transfer from the registered owner and

the persons entitled to the incumbrances on

the register which are to be cancelled on

the registration ; or

ii. a transfer from

the first mortgagee in

exercise of his power of sale, if he has one.

In practice Solicitors for purchasers of registered

land frequently lodge in the Registry transfers which

are not executed by the persons above mentioned.

The transfer usually lodged is by the registered

owner only, accompanied by the Order for Sale.

Apparently it is thought that an Order for Sale

authorises the Registrar to cancel all the burdens

registered on the land. This is not so. An Order

of a Court is only binding on the parties to the

proceedings in which it was made. Unless, there–

fore, the owner of a burden concurs in the transfer

to the purchaser, it is necessary to show that he is

bound by the decree of the Court in which the

Order was made. The persons bound by a decree

or judgment of a Court are

(a)

the plaintiffs and defendants ; and

(6)

the persons served with notice of the

decree or judgment pursuant to the

Chancery (Ir.) Act, 1867, S. 66, Rules

7 and 9, and Order 18, Rule 22, of the

County Court Orders of 1890, or the

corresponding Rule of the Circuit Court

Rules when in force.

It is to be specially noted that an advertisement

for claims in newspapers, or a letter or notice sent

by a Solicitor to incumbrancers, is not notice to

them within the meaning of the Rule

(Duff v. Devlin

(1924), 1 Ir. R. 56).

When incumbrancers on the Register do not

concur in the transfer, and the purchaser is required

by the Registrar to show that they are bound by

the decree of the Court, it frequently appears that

they have not been served with notice of the decree,

and are not bound ;

and an attempt is made to get

over the difficulty by giving details of the various

enquiries and accounts made and taken in the suit.

The Registrar objects to this duty being imposed

on him.

It is no part of his duty to investigate or

inquire into proceedings in the Chamber of a Court

consequential on its decree. Such action on his part,

when undertaken, is misunderstood, and is, and

ought to be, objected to by the County Registrars.

On a sale through the Court it is the dutv of the

Solicitor for the purchaser to get a transfer from

the necessary parties, and the only duty of the

Registrar is to register the purchaser and to cancel

those burdens on the Register

(a)

discharged by the exercise of an over–

riding power of sale ; or

(6)

whose owners concur in their cancella–

tion ; or

(c)

whose owners are parties to the suit either

originally or by notice, and are bound by

the decree of the Court.

The Registrar, therefore, notifies Solicitors that

where a purchaser of registered land sold by Order

of a Court does not lodge in the Registry a transfer

from the owner of a first charge in exercise of his

power of sale (if any), or from the registered owner

with the express concurrence of the owners of the

registered burdens, he will not cancel any burden on

the Register unless the owner of it is

(a)

a party to the transfer ;

(6)

a plaintiff or defendant in the suit ;

(c)

a person who has been served with notice

of the decree in accordance with the Rules

of the Court.

The only proof of service of notice that the

Registrar will accept is

the evidence of the service produced to and

accepted by the Court ; or

ii. a Certificate of the County Registrar that

service of notice of the decree was made in

accordance with the Rules of the Court.

In future, therefore, if Solicitors for purchasers

omit to procure the concurrence of owners of burdens

or the proper evidence that they are bound by the

proceedings in which the land was sold,

their

purchasers will be registered as owners subject to

the burdens, which will remain on the 'Register till

the Solicitors obtain the concurrence of their owners

to their cancellation by such application to the

.Court in which the land was sold, or otherwise, as

they may be advised.

Attention is also drawn to the fact that judgment

mortgagees have no power of sale. The majority of

Solicitors, of course, know this ; but, from transfers

lodged in the Registry, it would appear that some

do not.

ALL communications connected with THE

GAZETTE (other than advertisements) should

be addressed to the Secretary of the Society,

45 Kildare Street, Dublin.