Darbyshire v Darbyshire [1905] HCA 28

ate, and asked that this declaration might be varied so as to

le her to apply that sum in payment of the costs ordered to

Per curiam. The judgment will be also varied by excepting e sum of £269 from the declaration.

Appeal allowed with costs. Judgment of Beckett J. restored with certain variations.

icitors, for appellants, Crawford, Ussher & Thompson, ourne.

Solicitors, for respondent Kate Black, Lamrock, Brown & Hall,

Solicitor, for infant respondents, Hales, Melbourne.

(HIGH COURT OF AUSTRALIA.] ORGE ALEXANDER DARBYSHIRE anp ERS .

BETH WHITE DARBYSHIRE AnD | RESPONDENTS, ; J Cor A. DEFENDANTS, 1905. es ON APPEAL FROM THE SUPREME COURT OF 'MeLnourse, VICTORIA. August 18,21,

istration of Deeds - 6 Geo. IV. No. 22(N.S.W.), secs. 1,4 (Real Property Act

1890 (Victoria) (No. 1136), sec. 4] - Memorial - Signature by party before all Cele Od,

lars vmserted in memorial - Validity of registration - Sufficiency of O'Connor JJ.

particulars - Verification of memorial - ' Competent person," who is registration - Priority of equitable over legal title. ia

At the time when a memorial of a deed intended to be registered pi to 6 Geo. IV. No, 22 (N.S.W.), was signed, as required by that Aet, b of the parties to the deed, the day and the month of the execution deed and the name of the attesting witness had not been written upon parchment, but were inserted after the signature was affixed and registration.

Held, that the memorial was signed by a party to the deed withi meaning of sec. 4 of that Statute, and that to that extent the registrati valid.

Decision of the Supreme Court of Victoria (Hood J.) (Darbyshire v. shire, [1905] V.L.R., 239 ; 26 A.L.T., 128), reversed.

By Grifith C.J. - It is sufficient that the memorial, when delivered Registrar, contains the particulars required by see, 4 of 6 Geo. IV. Ne and bears the signature of one of the parties to the deed.

By Barton J. - If the memorial when signed by a party to the deed such particulars as would identify the memorial with the deed, and the particulars required by sec. 4 of 6 Geo. IV. No. 22 were inserted aft and before the memorial was delivered to the Registrar, the memorial is good one.

By O'Connor J. - If the memorial was signed by a party to the deed it was substantially a memorial of that deed, the other particulars being wards inserted, the memorial is a good one.

The description of an instrument as an "agreement for a marriage ment" is a sufficient statement of the nature of the instrument within 4 of 6 Geo. IV. No. 22, and it is not necessary to set, out the the intended trusts.

'The " competent person" by whom the memorial is, by see. 4 of 6 Geo No. 22, required to be verified, is a person who is able to swear that the

of which it is a memorial, and not necessarily a person able to swear truth of those particulars.

The priority given by sec. 1 of 6 Geo. LV. No. 22 to instruments under that Act, applies to equitable as well as to legal titles.

Held, therefore, that the registration of an instrument conferring an equi able estate in land gave priority to the person entitled to that estate o subsequent purchaser of the legal estate for value without notice.

Wharton v. Greville, 1 V.L.T., 76; and Mill v. Hill, 3 WLC, followed.

Alexander Darbyshire and the eleven other children of Darbyshire, deceased, and of his wife, Elizabeth White hire, against the said Elizabeth White Darbyshire, 'The I Trustees, Executors and Agency Co. of Australasia, , executor of John George Dougharty, deceased, and Byrne, the Registrar of Titles. By the statement of claim lowing allegations were made : - That on 10th March, 1862, 'byshire, who was then the owner in fee simple of certain by indenture between himself and the defendant Elizabeth e Darbyshire (then Irwin), in consideration of the intended ge between them, agreed to settle certain lands, including nd in question, upon Elizabeth White Darbyshire for life, ter her death, on the children of the then intended marriage, their heirs, in equal shares as tenants incommon: That such

istered in the office of the Registrar of the Supreme Court e Colony of Victoria: That John Darbyshire on 29th y, 1870, without the knowledge or consent of his wife, ed the land in question to Alfred Evans: That John shire died on 19th June, 1880: That Alfred Evans, on 2nd , 1883, under the powers contained in the mortgage, sold and in question to John George Dougharty, who died on 14th ember, 1889, and of whose estate the defendant company me representatives. The plaintiffs claimed (inter alia) performance of the agreement for a marriage settlement,

'@ declaration that the plaintiffs were entitled to an estate in simple reversionary on the death of Elizabeth White Darby-

eof the defences of the defendant company was a denial e indenture of 10th March, 1862, was duly registered.

it the trial before Hood J., evidence was given by Alfred ,anotary, who was in 1862 a law clerk and who had verified oath the memorial of the indenture, that, when he received emorial, it was signed by John Darbyshire, but that the day month of the execution of the indenture and the name of thereto were then omitted, and that he (Ford) himself

action was brought in the Supreme Court of Victoria by H.C. or A.

inserted those particulars in the memorial, and, having verif memorial, delivered it for registration to the Acting-Registr the Supreme Court. In this memorial the indenture w cribed in the column headed "nature of instrument," as "agreement for a marriage settlement."

Counsel for the plaintiffs then tendered the memo evidence, but counsel for the defendant company contended tl the memorial was not admissible in evidence, or, if adm that the registration was invalid.

Hood J. held that there was no proper registration of | indenture, and, as the plaintiff was unable to proceed f

From this judgment the plaintiffs now appealed to the Court.

Isaacs A.G. (with him Sanderson), for the appellants. requirement of 6 Geo. IV. No. 22, sec. 4, that one of the partie the instrument to be registered shall sign the memorial, is satis if everything substantial was in the memorial when the sig ture of one of the parties is placed upon it. Here everythit material was in the memorial when it was signed, viz., the nati of the deed, the names of the parties to it, and the land cone The date of the deed and the names of the witnesses were material. The section, when it says that one of the parties s sign the memorial, means that he shall put his signature upon it. The inference is that he authorized the insertion of those which were omitted from the memorial when he signed it. / deed is good although it is not in a complete form when i signed. When the memorial was delivered to the R was absolutely perfect, and, if the Act is read literally, it was plied with. :

(GriveitH C.J. - Unless this is a good registration the would be a mere trap. Priority of registration would aly open to be impeached by extrinsic evidence. Does not the m omnia presumuntur rite esse acta apply 7] -

As to the validity of the registration, see Blackwood v. Chartered Bank of Australia (2).

(1) (1905) V.L.R., 239; 26 A.L.T., 128. (2) 9N.S.W.R. (Eq.), 101.

he Act 5 Vict. No. 21, provides for an agent signing in place e of the parties. That shows that all that was wanted was signature of a responsible person.

'he party who signs, having seen that all the material things inserted, can authorize another person to put in the rest. As 05 Vict. No. 17, see In re Close, ex parte The New Zealand & Mercantile Agency Co. Ltd. (1). Tt has been the general ctice of solicitors to carry out registrations as this was done, nd the Court will regard that practice: Hardcastle on Statutes, fed. p. 95. An interpretation reversing that long practice uld be unreasonable.

(GrirritH C.J. - The principle that the Act should be inter- utres magis valeat quam pereat seems applicable here.]

mand Lewis, for the respondent company. The principles ing to unreasonableness have no application, for the Statute r, and the Court should carry it into effect regardless of the etice and of the consequences. The terms of the Proclamation 7 show the necessity of identifying the party causing the ument to be registered. Under the Proclamation he had to ehimself to be identified. That was because the legislature ought it important that the matters connected with registration ould not be done by agents. When they wish to provide for y they do so specifically. See sec. 12 of 5 Vict. No. 21. In ion tothe presence of one of the parties, one of the attesting messes was required to verify the memorial. These provisions Proclamation having become very burdensome, the Statute TY. No. 22 was passed, by which, instead of the presence of the parties being required, one of the parties was quired to sign a memorial of the instrument containing certain lars. Those particulars cannot be divided into those which opinion of the Court are important, and those which are portant. All are placed in one group by the legislature. If

and filled in after signature. The date of the deed, which of those particulars, may be a very important matter. memorial is not the piece of paper, but it is the particulars (1) [1901] 1 S.R. (N.S.W.) (B. & P.), 7, at p. 10.

set out on the piece of paper. A person does not memorial by signing one portion of it. It is a necessary co quence of the argument for the appellants that none of the 4 ticulars need be inserted at the time one of the parties signs, ; that the whole document may be written after that signatu The practice has not been to fill in some of the particulars signature, and there is no evidence of such a practice. (Grirrirx C.J. - Why should the memorial of a deed stand o different footing from the deed itself? The deed would n invalidated by the omission or subsequent insertion of the da The Act of Parliament puts the memorial on a higher footi By see. 12 of 5 Viet. No. 21, an agent cannot fill in the m i without getting the permission of a Judge. Could it be eonte that one of the parties could sign his name on a blank pi paper and send it to a friend asking him to write the m on it? That is a necessary consequence of the contention for th appellants. The late Sir Robert Molesworth in his work on 7 Registration Law of Ireland, at p. 6, refers with approval to case of Lessee of Sullivan vy. Walsh (1), where it was held registration was avoided by the omission of the day of the di from the memorial. If the signature is not to be put to tl completed document, there is no reason why the party should required to sign at all. His signature would be useless. As the necessity of personal signature, see Hyde v. Johnson (2 Williams v. Mason (3); R. v. Justices of Kent (4). A signatn before all the particulars are filled in is equivalent to a by an agent. See also Swift v. Jewsbury (5); Toms v. C1 (6). The signature is to authenticate the particulars set out | the memorial: Sutton v. Wade (7). Under the Wills Act, ifa alteration is made after signature, there must be a new sign The contention for the respondents is that the memorial containix the particulars must be signed by one of the parties, while t for the appellants is that a memorial containing the signature one of the parties and the particulars is to be registered. y first view does no violence to the language of the Statute, (4) LR. 8 Q.B., 305. (5) LR. 9 Q.B., 301.

view does violence to that language. The legislature requires the parties to authenticate the facts by his signature, and not authenticate the facts by putting his signature on a of paper. [saaes referred to Ex parte Lancaster (1).] it case illustrates the difference between the two views. s memorial does not set out "the nature of the instrument," as tired by 6 Geo. IV. No. 22, sec. 4. According to the statement m the instrument was an agreement in consideration of to settle certain land on the intended wife for life, and r her death for her children. Such an instrument is not ently described by the words "agreement for a marriage ent." Those words give no indication of the extent to the land is affected. The legislature intended that the ions should be set out. An abstract of the operative words d be sufficient. See Stephen v. Roberts (2); Healy v. Thames 4 Railway Co. (3). By the recital to see. 13 of 7 Vict. No. is stated that "the limitations contained in deeds and convey- s" were set out imperfectly, and it was therefore provided ta copy of the instrument should be filed. This shows that lature thought that, under 6 Geo. IV. No. 22, the limitations truments should be set out. Ford, who verified the memorial, not a "competent person" within the meaning of sec. 4 of IV. No. 22. He must be a person able to swear to the truth the several particulars required to be set out in the memorial. 'not sufficient that he should merely be able to extract those lars from the instrument to be registered. The priority d by 6 Geo. IV. No. 22, is in respect of a similar estate or The indenture in question here conferred only an equit- tate, and it has no priority in respect of the legal estate ch the defendant Company has. The English Registration Act Anne c. 4), does not give priority to equitable estates, but sh Act (6 Anne ¢. 2) (Ireland) does. The Act 6 Geo. IV. No. smore like the Irish Act than the English Act, but the rtant words "both in law and equity " which occur in sec. 4 Trish Act are omitted from 6 Geo. IV. No, 22. As to the

)5Ch. D., 911. (2) 11 N.S.W. LR. (Eq.), 127, at p. 131.

Darevsuree Law of Ireland, p. 73; Robbins on Mortgages, vol. t1., p. |

construction of the Irish Act see Bushell v. Bushell (1); Lord Norbury (2); Mill v. Hill (3); Molesworth's Regi

Coote on Mortgages, 7th ed., pp. 1264, 1271. [Isaacs referred to Wharton v. Greville (4).] 4 That case appears not to be distinguishable on this point,

was wrongly decided. The Proclamation recites that it is d

able to introduce the English provisions as to registration. 5 [They also referred to. Broom's Legal Maxims, 7th ed., p. 42!

Goddard's Case (5); Sharpe v. Birch(6); Real Property Act

Isaacs in reply. The statement of the "nature of the i ment" is sufficient. The object is to put persons on inquit the legislature had, when passing 7 Vict. No. 16, see. 13, that previous registrations had been invalid they would validated those registrations. Wharton v. Greviile (4) is a cor decision, and this Court is bound to follow it.

[GrirrirH C.J. - Doe d. Peacocl v. King (7), and Te: Osborne (8), ave to a like effect.]

He also referred to Battison v. Hobson (9); Sumpter v. Coop (10); The Encyclopedia of the laws of England, vol. X1,, p. 50

Grirriti C.J. This is an action for specifie performance fa agreement for a marriage settlement made on 10th Mareh, and registered in the following year. The plaintiffs are claiming to be entitled under that settlement, and the defe are the owners in fee of the land alleged to be affected by settlement. The defendants claim under a conveyance which subsequent in date to, and was registered subsequently to, # deed under which the plaintiffs claim. The plaintiffs' title, if ar is equitable, that of the defendants is legal. In order to e: I

(1) 1 Sch.. & Lef., 90, at p. 101. (6) 8Q.B.D., 111. (2) $ Ir Eq. Rep., 171. (7) 2 Legge, 829. (3) 3 H.L.C., 828, at p. 853. (8) 1 Legge, 806. (4) LV.LT., 76. (9) (1896) 2Ch., 403.

Statute 6 Geo. IV. No. 22, and called the cae by whom evified. It appeared in the course of his evidence that memorial, when signed by one of the parties to the instrument grantor - had not upon it the date of the deed or the name he attesting witness. It was objected that the memorial was in conformity with the Statute, and that therefore the regis- ration was bad. Hood J. was of that opinion. Of course that s fatal to the plaintiffs' case, and judgment was entered for the endants. In the reasons for the learned Judge's decision fur- dto us he says: - "I decide that the memorial does not mply with the Statute, and as the plaintiffs in the face of that cision cannot establish priority, I enter judgment for the endant the National Trustees Co., with costs." It is necessary fore to refer to the Statute under which the question arises, hich is, as I have said, 6 Geo. IV. No. 22, passed in 1825.

n 1817 a Proclamation had been issued by the Governor of South Wales, which I suppose had the force of law; by which m was made for the registration of deeds. It recited the nger of secret conveyances of land and the possibility of frauds, nd that it is desirable that "all conveyances, deeds, mortgages, nd all other instruments with regard to, or touching the transfer id conveyance of freehold property within this territory, should emore formally and properly than heretofore, according to and in course of law, drawn, executed, and registered." It then rovided that all deeds and conveyances might be registered, and at if they were not registered, they should be deemed to be mudulent as against any subsequent purchaser or mortgagee for able consideration under a deed or conveyance which was The Act only applied to deeds and conveyances, and e mode of registration was this: - The deed was to be brought y one of the parties to it to the office of the Judge Advocate in ydney, the party to be identified and verified as such on oath, - ethe Judge Advocate I suppose - and one at least of the wit- sses to the execution of the deed was upon oath to prove before 2 Judge Advocate the execution of the deed. The Judge Advo-

cate himself was then to enter in the register book a memor' respect of the deed, which memorial was to contain the day of month, and the year when the deed or conveyance bore d the names and additions of the parties and of the witnesses, a places of their abode, and a description of the land, &e. granted, or conveyed, or any way affected or charged, and a m randum as to the registration was to be written on the back deed. It will be observed that one of the parties to the deed h produce the deed himself, and had to be identified on oath, a one of the witnesses had to verify on oath the execution of deed, and the Judge Advocate himself made the entry in the reg ter, The Act of 1825 established a different system. It ex the provisions for registration to other instruments besides deed and conveyances. See. 1 provided that from and after the pa of the Act all deeds conveyances and other instruments in (except leases for less than three years) relating to, or inany Y affecting any lands, tenements, or other hereditaments in

and that all such deeds, conveyances and other instruments in ing made and executed bond fide and for valuable considera and registered in conformity with the provisions of the Pro tion of 1817 or of the Act, should have and be allowed priority every other deed, conveyance, or other instrument in writ "That is to s the deed, conveyance, or other inst writing, first registered i in the office of the Judge Advocate (if same shall have been registered under the said Proclamation), first registered in the office of the Supreme Court (if the same be registered in conformity with this Act or ordinance), shall priority in respect of all land, tenements, or other heredita conveyed or affected by such deed, conveyance, or other instrum in writing over every other deed, conveyance, or other instrumer in writing whatsoever and howsoeyer conveying,charging,or affee ing the same lands, tenements, or other hereditaments; and t deed, conveyance, or other instrument in writing, next reg as aforesaid, mutatis mutandis, shall have priority over eve

so on according to the priority of the time of registering such d conveyance, or instrument in writing as aforesaid." Them

tion was provided by see. 4, as follows : - * The registration ll deeds, conveyances, and other instruments in w: riting, of or

shall be made in the following manner; that is to say, a ial shall be written on parchment or paper, setting forth ite of such deed, or other instrument, intended to be registered, e nature thereof ; the names of all the parties, and all the ses thereto: the lands, tenements, or hereditaments intended conveyed; the pecuniary, or other consideration paid, in , or to the effect, mentioned in the schedule hereto , marked A, or with such alterations therein as the nature umstance of any particular case may require; and the memorial shall be signed by some or one of the parties to the nal deed or instrument and shall be delivered into the office Supreme Court of New South Wales, and verified upon the of some competent person, that such memorial contains a jand true account of the several particulars therein set forth,"

es made by this Act were considerable. It was no longer that one of the parties should attend in person before Judge Advocate and be identified. For that attendance was tituted the signature of one of the parties to the memorial, |, instead of the entry of the memorial being made by the Judge ocate himself from the original instrument, the particulars of ment were required to be written and verified by the of some competent person. On that it is contended on behalf he respondents - and the argument seems to have satisfied the Judge below - that all the particulars required by sec. 4 he Act to be set out in the memorial must be written on the iment before the party put his name to it. That depends upon 'Proper construction of the section. The argument is based prin- y upon the words "the said memorial" in the phrase "the said al shall be signed." Having regard to the previous law, pparent object of the change, the construction of the sentence, we know of the form of legislation in those days, I am that the words "the said memorial" mean the memorial

to any lands, tenements or hereditaments in New South,

.. that it contains the particulars required by sec. 4, and

mean that the document which is taken to the Registrar sl bear the signature of one of the parties. I think that, if be predicated of the memorial when it is taken to the Ri

bears the signature of one of the parties, then the memorial good within the provisions of the Act and is complete, and t the fact that the date and the name of the attesting witness not filled in when it was signed by the party is immaterial. Bi it is not necessary to go as far as that, because, if it is nece that the memorial shall contain any of the particulars set sec. 4 before it is signed by the party, the obligation can more imperative than in the case of a deed. The date of a d is not a material part of the deed, and the name of the att witness is of course no part of a deed, for it cannot be # before the deed is executed. In my judgment, if what is w after the signature is attached is no more than what written in or on a deed after it is executed without invalid it, then no objection can be taken to the memorial on | ground, and the registration is, so far, good. I think that a other construction would, as I said during argument, be settin trap for persons trusting to the register. 'The registration of a

which was in the memorial when it was signed, was filled) afterwards. That is I think inconsistent with the object of legislature, which was to keep a record of deeds and other i ments. I am of opinion that this objection cannot prevail. The next objection taken was that the memorial did out the nature of the instrument. The only way in whit instrument is described is as an "agreement for a marriage sett ment." I have pointed out that the Proclamation only made p vision for the registration of deeds and conveyances, wh Act 6 Geo. IV. No. 22 allowed the registration of all sorts of ments. By the Act 5 Vict. No. 21, that provision was made m distinct. This later Act made no change in the mode of prepari memorials, and did not repeal see. 1 of 6 Geo. IV. No. 22,b added another provision in sec. 11, that "all deeds and instruments affecting any lands or hereditaments in New

es, or its dependencies, which shall be executed or made after H. ©. or A.

sing of this Act, and which shall be duly registered under 19%

provisions of this Act, shall have and take priority, not accord- pines

to their respective dates, but according to the priority of

stration thereof only " - which is very much the same as the Act. By section 14 it was expressly provided that "the instrument hereinbefore used, shall, for the several purposes of

Act, be construed to include not only conveyances and other but also all instruments in writing whatsoever, whereby | estate shall be affected, or shall be intended so to be." ace was placed for the respondents upon see. 13 of 7 Vict. 6, which did not extend to the district of Port Phillip, as ntaining an expression of the opinion of the legislature as to , the memorial ought to contain. That section recited at " Whereas, from the imperfect manner in which the limi- s contained in deeds and conveyances, relating to real are generally set forth and described, in the memorials or f the same, as heretofore filed, it is expedient that full should be registered and filed . . . instead e memorials or extracts heretofore required," and then went provide that, in future, in New South Wales such full copies be registered. I do not think that that provision indicates ta memorial registered under the Act of 1825 should set forth limitations contained in the deed. Indeed, setting out such ions seems to be quite inconsistent with the form of the lle to the Act of 1825, which merely required the "nature of instrument" to be stated in the memorial. All kinds of instru- might be registered except leases for less than three years. my opinion, the nature of the instrument was sufficiently | by the words "agreement for a marriage settlement." e next objection taken was that the person who verified the 1 was not a "competent person." It is suggested that he be a person who could verify the execution of the instru- The answer is that the Statute does not say so. It says t the memorial is to be "verified upon the oath of some npetent person that such memorial contains a just and true nt of the several particulars therein set forth." In this case orial was verified by a person who swears in those terms,

ie., that the memorial contains a just and true account of several particulars therein set forth. It is in the form in schedule. In my opinion there is nothing to indicate competent person should be a person able to swear to the e of the original instrument. In my judgment, therefore, all objections fail, and the memorial should have been received evidence as sufficient evidence of the registration of the deed, the plaintiffs' case should have gone on, if that was all. But another objection was taken before us, viz., that in event the appellants cannot succeed because their title is eq able only, and that of the respondents is legal. They hay legal estate as appears by the statement of claim, which not allege that they were not purchasers for value wil notice, nor is it suggested that any such case could be mad the appellants. Although it is very inconvenient that a of final appeal should decide a point of law as a Court of fi instance, yet it may be necessary to do so if on the face of they ceedings it appears that one of the parties is entitled to judgm in any event, and the Judicial Committee has always assumed t jurisdiction. If the objection is a good one - that a person has acquired a legal estate for valuable consideration wil notice of a previous equitable title, is not affected by the pre registration of that equitable title, and that the Act does priority to such equitable title - then the appellants cannot if the action goes on. Both parties desire that we should our opinion on this point, and I will now give mine. The questi turns upon the provision I have already read in see. 1 of 6 : IV. No. 22, that; is: - "the deed, conveyance, or other ins in writing first registered . . . . shall have priority over every other deed, conveyance, or other instrument in ¥ whatsoever and howsoever conveying, charging, or afte same lands, tenements, or other hereditaments." The vi suggested by Mr. Cussen is that full effect could be given to words by holding that the date of the registration of a de for the purpose of priority to be taken as the date of the so that in this case there would be an agreement by marriage settlement, which conferred equitable rights, by a conveyance by the same person for valuable

it notice, which would give the legal estate, and that in that H. ©. or A. ethe legal estate would prevail over the equitable. If the 19 were res integra, there would, no doubt, be a good deal to p ee said in favour of that view. But the Act of 1825 was in Dies nce founded upon the Irish Registration Act, (6 Anne ec. 2),

ile the Proclamation was founded upon the English Registra- Act, (2 & 3 Anne ec. 4). The Act of 1825 followed 8 Anne ept for the omission of the words " both in law and equity," the omission of those words cannot, so far as I can see, any difference as to the interpretation of the section. 'The etation of the Irish Act was settled by the decision of Redesdale L.C., in 1803 in the case of Bushell v. Bushell (1):- - n the whole of this case, therefore, I have no sort of doubt of e construction of this Act. The instrument registered must against a subsequently registered instrument, by force of ause in the 4th section, that being an instrument which s lands, it shall be good not only at Law but in Equity, to the priority of registry. his is not at all grounded the next section of the Act, which avoids unregistered convey- that is a provision of a totally different description. The ig of the former clause, I take it, is to give full effect by f the registry even to articles, if registered, against a legal eyance: so that the Act has given to contracts registered a eand effect with respect to lands themselves, which they have in England, there being no such clause in the English registry is I take to be the true meaning of the Act." That case was in Ireland in several cases, and finally the question came ion in the House of Lords in Mill v. Hill (2). Lord St. , who was then Lord Chancellor, had himself as Lord lor of Ireland in Drew v. Lord Norbury (3), followed the of Lord Redesdale, and the House of Lords affirmed the then taken. As I have said, I do not think that the omission he words "both in law and equity " makes any difference, but , I think that the matter is not open for argument in Vic- use in Wharton v. Greville (4), nearly fifty years ago, the e Court of Victoria put a construction upon 6 Geo. IV. No.

h. & Lef., 90, at p. 102. (3) 9 Ir. Eq. Rep., 171. LL.C., 828. 2 (4) 1 VL, 76.

22 exactly in conformity with that put upon the Irish tion Act in Bushell vy. Bushell (1). The Court consisted 5 William «Beckett C.J., and Barry and Williams JJ. is admittedly undistinguishable from the present. It was ceeding, not in the form of a bill in equity, but by a asking for the specific performance of an agreement for the: certain land. The complainants' title was a registered a for the sale of the land to the respondent Greville, and ano the respondents, Lang, was a purchaser without notice o agreement, and the conveyance to him was not registere after the registration of the complainants' agreement. The Ce construed sec. 4 of 6 Geo. IV. ¢. 22, and came to the conelusio the same construction must be put upon it as Lord Redesda put upon the Irish Act. It was a very carefully considered jud, and after quoting the section, Six William d Beckett C.J. said ( "We cannot, in the face of words so comprehensive and so i recognise such a refinement as that suggested, and without lay any stress on notice, or want of notice to Lang, or on the oblig to search the registry, or on the advantages or disadvantages sidering registration as constructive notice, or the different m in which the question has been settled in England, Ireland, America - (vide Story, Equity Jurisprudence, vol. 1, p. 3: we may safely determine that the instrument first registered, tl is the agreement which the complainants seek to enforce, prevail pro tanto against the subsequently registered deed." case settled the construction of that section in Victoria, been the law of Victoria unchallenged now for nearly fifty ye and, even if I thought it was not a good decision - which I very far from thinking - this Court, administering the Victoria, is bound to followit. The Supreme Court of New Wales, two years before, in the case of Doe d. Peacock v. King has decided to the same effect. For these reasons I think that objection taken to the statement of claim fails; and, as objections to the regularity of the registration also fail, the ought to be gone on with and tried to a conclusion. I the think that the appeal should be allowed, and the case remitts I the Supreme Court. : (1) 1 Sch. & Lef., 90. (2) 1V.L.

J. On the 10th March, 1862, John Darbyshire agreed with the defendant Elizabeth White Darbyshire, then ,in Beaeceration: of marriage, to settle on her for life, and

township of Belvoir. The marriage took place the next nd on the 2nd December, 1863, a memorial of the agreement ived and registered in the office of the Registrar of the me Court of Victoria. Both the validity and the legal effect memorial are in dispute. In 1870 Darbyshire mortgaged the ds the subject of the settlement to Alfred Evans. This mortgage duly registered in February, 1870. Darbyshire died in 1880, state, and in 1885 administration of his estate was granted to defendant Whittaker. In 1883 Evans, the mortgagee, sold Jand under his power of sale to John George Dougharty, and nveyance was duly registered in the same year. John George rty died in 1889, having by his will devised the lands in stion on certain trusts. It is admitted that the legal estate the land, the subject of this action, is vested in the defend- -and respondent the National Trustees Executors and Agency ss are now trustees of J. G. Dougharty's estate, and that ted Evans and J. G. Dougharty in turn took for valuable con- ion and without notice of the agreement to settle. The ifs, the children of the marriage between John Darbyshire, , and the defendant Elizabeth White Darbyshire, sue for performance of the agreement for a marriage settlement e by the deed of 10th March, 1862, and for a declaration that

jionary on the estate of John Darbyshire's widow, the first of the defendants, as tenants in common, and that the it company holds the lands in trust for the interest of aintiffs therein. The defences of the company so far as this is concerned are, (1) that the agreement for a settlement of has not been duly registered ; and (2) that even if the reg- ration is valid, that agreement, which gives the plaintiffs no than an equitable interest, does not take priority, even pro 0, of the legal estate vested in the defendant company, so as

are entitled under that agreement to an estate in fee-simple *

H.C. or A. to affect them with a trust in respect of the equitable in

19, the plaintiffs : Darevsurre At the trial before Hood J., the contest was entirely o Darprsume, Validity of the registration, as the success of the defendant

pany on that point relieved them from the necessity of

their contention as to the effect of the registration. That tention, however, they properly raise now as a bar to the g of the appeal, even if the registration is good, inasmuch plaintiffs must fail unless they establish priority of title 1 only evidence at the trial was that of Mr. Ford, a notary, | has been connected with the law in this city for the last years. In 1862 he was a law clerk, and it was he who re; the memorial in respect of the agreement to settle. The m was in the form prescribed in Schedule A to the Registration of New South Wales, 6 Geo. IV. No. 22, which applies in State. The columns in this form are headed respectively "D of Instrument," "Nature of Instrument," "Names of Pa "Names of Witnesses," " Description of the Lands or Pro, conveyed," " Consideration and how paid," " Any other partieul: that the case may require." Ford filled in certain part Before he did so, the memorial stood thus : - John Darbyshire signed it at the foot. The column for the date lacked the

complete 1862. The column for "Nature of Instrument" ha been filled up with " Agreement for a marriage settlement," a now stands. The " Names of the Parties" were stated as "Jo Darbyshire to Elizabeth White Irwin," and they so remain. were no " Names of Witnesses." The " Description of the or Property conveyed " was as it is now, the alteration of "B worth " to" Belvoir" bearing Darbyshire's initials, and the e for " Any other particulars that the case may require " was now blank. Before verifying the memorial on oath, Ford, the words " Date of Instrument," wrote in the words " "March," and "two" as they now appear there; and under the " Names of the Witnesses" he wrote in and initialled the " W. G. Sturgess, Beechworth." These particulars he took fi the deed itself. He also wrote in the figures "534" and "134," respective numbers of the memorial and book. In the blank fo

verification, before swearing, he filled in his own name and tion and the date, namely "second," "December," and ,' and then signed and swore it before the Commissioner. hese facts the whole objection must rest on this, that the e column and the witness column of the memorial itself were npleted by Ford, Darbyshire (the grantor) having left them F The filling in of the numbers at the top could not impair alidity of the registration, and the completion of the verifi- tion form cannot be contended to have been Darbyshire's , or to have vitiated the memorial when performed by e man who was to swear to it. These facts having been en in evidence, Hood J. decided that the memorial did not nply with the Statute, and rejected the evidence, and, as plaintiffs in the face of that decision could not establish 'ity, he entered judgment for the defendant company with 'The plaintiffs now appeal to us on the ground that the 'ion that there was no proper registration was erroneous. er first to the Proclamation of the Governor of New South es of 18th January, 1817. It applies to "deeds and convey- only, but orders and declares that all deeds and conveyances [or concerning or whereby any houses lands . . . .. may 'any way affected in law or equity, may, at the election of the y or parties concerned, be registered " in the manner therein- x directed ; and that " every such deed or conveyance that shall y time after the said twenty-fifth day of March next be made d executed, shall be adjudged fraudulent and void against any bsequent purchaser or mortgagee for valuable consideration, s such deed shall be registered as by this present Proclamation ' , before the registering of the deed or conveyance, er which such subsequent purchaser or mortgagee shall claim." her orders and declares that every deed and conveyance to ered and registered shall be brought to the Judge Advocate grantor or grantee thereof, "to be identified and verified as th on oath," and at least one of the witnesses to the execution lon his oath before the Judge Advocate prove the signing and and the Judge Advocate is to enter in the register book morial of "every such deed or conveyance so attested as id," which shall contain "the day of the month, and the

year, when such deed or conveyance bears date, and the n and additions of all the parties . . . . andofall the witn to such deed or conveyance, and the places of their ab

shall express or mention the lands . . . . and the names all the counties, or places . . . . where such lands an

are lying or being, that are given, granted, or conveyed or way affected orcharged . . . . ortothe same effect."

which enactment and 5 Vict. No. 21, this registration is n The former Act enacts as to the effect of registration (see. 1) t after its pas: in writing (except leases for less than three years), of and re to, or in any manner affecting" any lands, &., may be and registered in the Supreme Court office as in the Act dire and that "all such deeds, conveyances, and other instrume writing . . . . made and executed bond fide, and valuable consideration" and registered in pursuance of the lamation (which is recited) or in conformity with the Act, "sha have and be allowed priority over every other deed, conveyan or other instrument in writing, that is to say, the deed, conveyan or other instrument in writing, first registered in the office of Judge Advocate" (if under the Proclamation), or in the Suj Court office, (if registered in conformity with the Act), "shall priority in respect of all lands . . . . conveyed or affect by such deed, conveyance, or other instrument in writing every other deed, conveyance, or other instrument in

same lands," &e. I have read this section with some partic in order to draw attention to the signification of the wo "charging or affecting," and also to the breadth of the exp "other instruments in writing." Then sec. 4 provides as manner of registration, that the registration of all deeds, ances and other instruments in writing of or relating toany &c., shall be made in this way : - * A memorial shall be w 2 setting forth the date of such deed, or other instrun intended to be registered, and the nature thereof; the all the parties, and all the witnesses thereto; the lands . intended to be conveyed; the pecuniary or other con

id Court;" and upon the delivery and certification of the emorial, " the proper officer or clerk appointed for such purpose give a receipt for the same, in which shall be specitied the n day, hour, and time on which the same shall have been livered into the said office." 'Then follow in the next section provisions directing the proper officer to perform other in relation to the memorial.

1842, the provisions of 6 Geo. IV. No. 22, having been found convenient by reason of the wide extent of the then area of sw South Wales, provision was made by 5 Vict. No. 21 for the ablishment of a separate registry for the District of Port Phillip, d memorials which were under the old Act required to be veri- d, were by sec. 1 allowed to be verified within the district of rt Phillip before " the Deputy Registrar or other person who y be appointed to discharge the duties of Registrar there, or f any Commissioner of the said Supreme Court appointed in part of the colony under this Act for these purposes." The ginal instrument was however to be produced at the time of ification (sec. 2), and, if it appeared to have been executed by 'ksman, the registering officer had to refuse to complete the morial by his certificate unless the execution by the marksman attested in the manner prescribed. See. 12 of this Act pre- s that where the party on whose behalf any instrument is uired to be registered shall be dead or absent from the colony the registration is required to be made, the lawful repre- ive or attorney of such party, upon application to the sident Judge of the Supreme Court at Port Phillip, and upon of to his satisfaction of the death or absence of such party, he sign the memorial in the name and on behalf of the original

party, such signing to be as valid and effectual to all intent purposes as if it had been by the original party or parties.

The English Act (2 & 3 Anne e. 4), applying only to the W Riding of Yorkshire, provided by sec. 1 that a memorial of deeds and conveyances, and of all wills, of or concerning whereby any lands, &., in the West Riding of Yorkshire may in any way affected in law or in equity, may be registered manner thereinafter directed ; and that every deed or conveyan

"shall be adjudged fraudulent and void against any subseq purchaser or mortgagee for valuable consideration, unless memorial thereof shall be registered as by this Act is before the registering of the memorial of the deed or conveyant under which such subsequent purchaser or mortgagee shall and similarly as to wills. Sec. 7 enacts that all memorials to b registered shall be put into writing and directed to the " Register and, in case of deeds and conveyances, shall be under the hand a1 seal of the grantors or some or one of them, his or their 1 or trustees, attested by two witnesses, one whereof to be one 0 the witnesses to the deed or conveyance; which witness on oath shall prove the signing of the memorial and the executio of the deed or conveyance. By see. 8 it was provided that memorial shall contain the day of the month and year the deed, &c., bears date, and the names and additions of all t parties, and of the witnesses, and the place of their abode, shall express or mention the lands, &c., contained and the: of all the parishes, &., where any such lands, &c., are that a any way affected or charged, &., every such deed, &e., to be produced to the "Register," &¢., who shall endorse a certifie &e.

We come now to the Irish Act (6 Anne c. 2). Sec. 1 establii a public office for registering memorials of "deeds and con veyances, wills and devises" in Dublin. Sec. 3 provided a memorial might be registered as thereafter directed at election of the party or parties concerned. See. 4 provided every such deed or conveyance of which a memorial shall be d ul registered "according to the rules and directions in this Act pre

1 law and equity according to the priority of time of registering ch memorial for and concerning the . . . lands

e right, title and interest of the person or persons so conveying

Jands . . against all and every other deed con- ee or disposition of the . . . lands . . . or any rt thereof comprised or contained in any such memorial." See: rovided that deeds, &e., not registered, should be fraudulent void as against deeds registered and creditors by judgment, Sec. 6 provided that memorials should be " put into writing " | "directed to the Register," and in ease of deeds or convey- , Should be under the hand and seal of some or one of the 'tors or of the grantees, his, her or their guardians or trustees, ed by two witnesses, one whereof should be one of the wit- to the execution of such deed or conveyance: that such sses should prove by affidavit the signing and sealing of the morial and the execution of the deed or conveyance, and the d the time of the delivery of the memorial for registration. Now, it is contended, as I have said, for the respondent company it the registration does not comply with the necessary require- nts of 6 Geo. IV. No. 22, and comparison is made between the amation and the several Acts with the view of showing that 2 particulars required and essential were not in this memorial he time when Darbyshire signed it, and that it was necessary it should be a complete memorial in all particulars directed by Act before such signature. Admittedly there are particulars those contained in the section of the Act which do not to have been in the memorial when Darbyshire signed it, which were subsequently filled in by Ford. There is a con- ble difference between the requirements of the Proclamation 1817 and those of the Act 6 Geo. IV. No. 22. Before a r norial could be registered under the Proclamation, the deed elf had to be brought by at least one of the grantors or grantees, ho was himself to be identified on oath, to the Judge Advocate,and 1 at least of the witnesses to the execution of the deed had upon before the Judge Advocate to prove the signing and sealing of deed, and it was not until then that the Judge Advocate could

rib ed" is to be "deemed and taken as good and effectual both H.C. or A.

in Paroysume ch a deed or conveyance mentioned or contained, according to Dae

enter in the register book the memorial containing pa similar to those contained in the present memorial, and y became the registration of the deed. So that when one sec. 4 of 6 Geo. IV. No. 22, there is observed a great differ the stringency of the requirements under it. It was no necessary that a grantor or grantee should be identified on o: nor was it necessary, apparently, that the deed itself should produced at the time of registration. It was simply di ec that there should be registered a memorial setting forth the d and the nature of the instrument, the names of the parties witnesses to it, the lands, &c., affected by it, and the considera in the form in Schedule A with any necessary alterations that t! circumstances required. 'That memorial was to be signed by sor or one of the parties, and was to be verified on the oath "of competent person." It is contended that, as there is no distin between the particulars required by the section, to omit them at the time of the signature of the memorial is the same if all were omitted, and that the fact that at the time of re, tion the memorial contains all the particulars is quite immat

• it may contain all the particulars and yet be bad becanse t grantor or grantee had left out part of them when he signed. consequences of upholding such a contention would be serious indeed. It is not expected of those who sit in Court: Justice that they shall lay aside their common knowledge, those who have any experience of the working of a lawyer's offi must know that in a great number of cases memorials are stantly signed in blank by the party, and that the neces particulars are filled in afterwards by the solictor or by his who has charge of the matter. That is a matter of co practice. The lawyer or his clerk knows the facts and fi the particulars, and then takes the oath verifying the content the memorial, and tenders it for registration, I would vi the opinion that only a small proportion of the memorials 0 registered documents here and in New South Wales have filled in as to absolutely all the particulars at the time the have signed them. So that the consequences of such a decisi is invoked by the respondents would be most serious to throughout the country. If by any reasonable consti

Act such consequences can be avoided, I think it is incumbent m this Court to adopt it. It appears to me that, reading this n according to the light of common reason, the intention of amers of the Act, who, as i have pointed out, had departed a very large degree from the particularity required by the mation, is absolutely satisfied if the party signing the morial has signed it when it contained such particulars as to the memorial absolutely identifiable as a memorial flowing a deed of which those are the particulars. If the remaining iculars are afterwards filled in by the registration clerk of the tor who produces the memorial or by some such person, then, on the memorial in its completed form being verified by the th of such person, there is a complete memorial for registration. cases were cited to us as to the maxim qui facit per alium eit per se, but I do not think those cases apply to a case in which fulfilment of these statutory provisions is contested.

was contended in support of the argument directed to the idation of this memorial, that because the words "the said emorial" are used throughout sec. 4, after the words "a memorial ull be written on parchment or paper," it is intended that the ment shall be in the same state at each stage, and therefore when the section says "the said memorial shall be signed," means the memorial then containing all the particulars. I do ot think that is a reasonable construction. An examination of tion seems to me to show that, when the memorial is verified on the vath of a competent person that it contains a just and account of the particulars therein set forth, and that oath is ade before the proper person, then the memorial, if it contains ¢ particulars required by the section, is a complete memorial rregistration, provided only that it shall have been signed by 'of the parties, and that at the time of such signing it shall been in such a state as to be identifiable with the original to the extent of showing that it is a memorial in pursuance deed and of none other. For instance, take the present Surely the particulars set out in the memorial at the time signed, viz. that there was an agreement for a marriage ment between certain named persons and affecting certain d land, are sufficient to identify the memorial with the

instrument to which it referred. I am of opinion that memorial ought to contain particulars of that kind when if signed, and that in the present case, before Ford touched it, t memorial could only be assignable to the agreement fora marria settlement of 10th March, 1862. In that state I consider was sufficient a compliance with the Act for Darbyshire then to si it, and to leave the other particulars to be filled in by the ¢ That has been duly done, the instrument has been verified, can be no mistake that the memorial is now, and was at tl time of signature, sufficient to show anyone who inquired a it what instrument it referred to, and I am of opinion that is al the Act requires. :

There are other contentions, the chief of which is that that w has been written in the column under " Nature of Tnstramemi insufficient. It is contended that "Agreement for a settlement" is not a sufficient description of the nature of instrument, and that some description of the limitations inten to be in the marriage settlement should be set forth in th memorial. Iam unable to agree with that contention. It se to me that sec. 4 was passed for the purpose of enabling a pe who was making a search in respect of the title to land, to s whether there was any instrument registered affecting that so that he might find out whether there had been any dea with that land which would affect the title to it. It wassi therefore that the instrument in this ease should be described 2 an agreement for a marriage settlement, because a person contem- plating later dealing with the land would, from the deseription o the instrument in the memorial, be put uponinquiry. There ar no words in any part of this Act requiring any greater p larity, and, in their absence, the only conclusion I can come to that the intention of the Act was that the description should b sufficient to put a person on inquiry, - to let him know that upor the result of a search he might discover to what extent the in respect of which he was searching was affected by pre dealings. It would be very difficult to draw the line at the description would cease to be sufficient if the arg ¢ Mr. Cussen were adopted. I am of opinion, therefore, that a regards the nature of the instrument the memorial is sufficient.

n, it is said that the memorial is not verified by a competent on, because the law clerk did not answer that description, | it seemed to be, if not contended, at any rate implied, that only person who was competent to verify the memorial was m who was present at the execution of the instrument one of the attesting witnesses. The Act itself requires no narrow construction as that, and although it may be difficult what is the exact meaning of the words "competent person," pe are no parts of the section which show that a competent rson must be one of the witnesses to the instrument. If that been the intention it would have been easy to say so instead g the broader words "competent person." By sec. 11 of No. 21 the lawful representative of a person who was or absent from the colony might sign the memorial, and not y would his signature be sufficient, but the whole registration iid be as valid and effectual as if the memorial had been by the person who was absent or dead. I cannot find vhere in the Act a line or expression to show that a person nt with the instrument itself to be registered, and carry- an occupation which familiarizes him with such a process, jot competent to fill in whatever is necessary and to verify orial so filled in. Consequently I cannot bring myself to that Ford was not a competent witness.

ing as I do with the learned Chief Justice, I shall not il very fully with the other objection, viz., that the registration agreement for a marriage settlement is ineffectual to give ority over the subsequent conveyance of the legal estate. n dealt with that question with his usual ability. The pon the Irish Registration Act (6 Anne c. 2), are of portance in considering this matter. he first of them is that he case of Bushell v. Bushell (1), where Lord Redesdale L.O., r setting out the differences between 6 Anne c. 2, sees. 3 and 4, e provisions of the English Act, 2 & 3 Anne e. 4, says (2): - his difference in these Acts seems to me to have been what has

nee does not consist in the registry here being notice, but the priority which the Statute here gives to the prior registered

(2) 1 Sch. & Lef., 90, at p. 102. H. C. oF A. 1905. pee

deed. That part of the Act which makes a deed not fraudulent and void against a registered deed, has rece' same construction in both countries: the question whi registered deed was to have priority of another registered d

according to the priority of registry, and how far this prior was to extend, has received a different determination in and in Ireland, and that difference is founded on the words o Irish Act." The Lord Chancellor then deals with the cases; { he says: - *On the whole of this case, therefore, I have no. doubt of the true construction of this Act. The instrument tered must prevail against a subsequently registered inst by force of the clause in the 4th section, that being an insta which affects lands, it shall be good not only at law butin

veyances: that is a provision of a totally different des The meaning of the former clause, I take it, is to give full e by force of the registry even to articles, if registered, a legal conveyance: so that the Act has given to contracts re; a force and effect with respect to lands themselves, which have not in England, there being no such clause in the Registry Act; this I take to be the true meaning of the far as I can collect; and it will answer all the purposes of ey decision on the subject."

Sec. 4 of 6 Anne c. 2 there referred to was confined to deeds a conveyances of which a memorial should be duly registered, provided that they should be "deemed and taken as good effectual both in law and equity, according to the priority of registering such memorial."

There were several other cases following this in wh same construction was given to the Irish Act, and ult the important case of Drew v. Lord Norbury (1) was de by Lord St. Leonards, then Sir Edward Sudgen L.C. The Chancellor having expressed the inclination of his opinion, diree the case to be re-argued before himself, Blackburn C.J. Pennefather B., and they decided that the construction put uy see. 4 of 6 Anne ¢. 2 by Lord Redesdale was the right one, 1

Tn his judgment Lord 7rrwro says (2) : - * But, in Bushell v.

dlge was conspicuous, and he came to the conclusion that upon e construction of this section, differing in its language from section in the English Act, the equity in the grant which was ered would prevail, as an equity, against any subsequent ant, by the same party, inconsistent with it . . . Itisnow ty years since Lord Redesdale came to that decision, and between and seven years since the present Lord Chancellor, then holding is of Ireland, confirmed and adopted it. If the rules of ww applicable to the settlement of property, which have been lemnly decided and acted upon during a period of fifty years, have governed professional men in that country in advising in arranging their clients' interests in respect of property, are e called in question, and if at the end of that time that which sht have been at one time doubtful, but has long since been is to be re-opened and reconsidered, and an alteration place, I confess it appears to me that the Courts would come rather a snare than a protection. The opinion of Lord fale was in itself entitled to great weight as an authority, it is entitled to still greater weight when the length of time sidered during which I must suppose it to have been esced in, and to have been acted upon in regulating the

the solemn revision of the present Lord Chancellor, assisted the two learned Judges I have mentioned, and has been. erately confirmed. I should therefore submit to your Lord- that that should be taken as settled law, not subject to any bt or question, and not now again open to argument ; and that that Act it should be deemed that, according to the true 'uction, an equity which is duly registered is entitled to bind

1. 3 H.L.C., 828. (2) 3 H.L.C., 828, at p. 853. s (3) 1 Sch, & Lef., 90.

me point came before the House of Lords in Mill v. Hill H.C. or A.

(3), Lord Redesdale took time to consider the question, },xnysimee 1 delivered an elaborate judgment upon the subject, marked by Dink

property which may be the subject of grants made at a t subsequent to such registration. My Lords, entertaining th

to acquiesce in, and to confirm the ruling which I have b stated." That therefore is the final construction put upon th Trish Act by the House of Lords.

But the words "at law or in equity" are absent from the South Wales Act, which, in other respects, is extremely similar the Irish Act. On the other hand the former Act deals with the registration of "deeds, conveyances, and other instruments i writing." Looking at the cases collected under the "Instrument" in Stroud's Judicial Dictionary, 2nd ed., p. it appears clear to my mind that those words, especially w used in juxtaposition with the words "deeds and conveyan indicate that instruments in writing might be made otherwis than by deed. If that is so it is strong to show that equita assignments or securities were intended to be included in the Ney

merely to instruments effecting the complete legal transfer of th freehold or other title, but also to instruments charging or aff ing land and giving only an equitable title. Now, to my is not by the mere use of the words "at law or in equity," this matter is to be decided, but by the scheme and scope of tl Act. The use of those words and of the words "instrument it writing," " charging or affecting the same lands," and " whats and howsoever,' if they do not contain an express dit appear at any rate to raise a very strong and almost ii inference that instruments conferring an equitable title intended to be included in the Act. That that is the law in toria, appears clear from the case of Wharton y. Greville heard before Sir William aBeckett O.J.,and Barry and Willi JJ. The Court there considered the whole question in the li of Lord Redesdale's decision, and in delivering the judgment the Court the Chief Justice said (2): - * No authority was cit in support of the distinction between legal and equitable i 0 ments, and the attempt to classify them so that the Act should b read distributively as separately applicable to each. ' Priority () 1 V.LT., 76. (2) 1V.L-T., 76, at p. 78

spect of all lands &e. affected by &e. an instrument in writing every other &c. instrument in writing, whatsoever and wsoever affecting the same,' &e., is the substance of the words d. We cannot in the face of words so comprehensive and so plicit, recognize such a refinement as that suggested, and

we may safely determine that the instrument first regis- that is the agreement which the complainant seeks to enforce, st prevail pro tanto against the subsequently registered deed. Nevertheless, so far as the respondent Greville is con- d, we are of opinion that the registry having established the ity sought to be enforced, he could only sell his estate to ang subject to the equitable interest previously created by the ment for the lease, and liable to its being enforced if desired the person into whose hands the estate might come." The just quoted in a case similar in principle seem to me actly to describe the position which arises here, and I am of m that, so far as the respondents here are concerned, the ition having established the priority sought to be enforced, esettler could only sell his interest subject to the equitable interest viously created by the agreement for a marriage settlement, | liable to its being enforced, if desired, against the person into hands the estate might come. There are obvious reasons y a decision of the Full Court of Victoria given so many years go should not at this late day be over-ruled except on the clearest rounds. I am of opinion with the learned Chief Justice that this ation was valid, and think therefore that the appeal should

jjections raised against the registration but only to the most: portant, that is, that the memorial was not complete when it s signed by one of the parties to the deed, the settlor. The s bearing upon that question may be stated in a very few The original deed was complete in every particular n the memorial was made. The memorial was complete in y particular when it was verified and presented for regis- ation. But it appears that the signature of the party to the

deed, the settlor, was placed upon the memorial at a time Ww it was wanting in the date of the deed and the name f witness to the deed. The question is whether the events hay occurred in that order - the signature of the party having b placed on the memorial when it was not absolutely complete. that vitiates the registration. That question turns upon words of sec. 4 of 6 Geo. IV. No. 22: - *The said memorial | be signed by some or one of the parties to the original d instrument." We are of course bound to administer the according to its plain language, and, if there were no ambi; in the language, it would be unnecessary to refer either to history of the Act or to other Statutes dealing with the subject in Ireland and in England. But the word "signed" is free from ambiguity, and therefore it is necessary to look, fi all, at what was the object and intent of the Statute, and, se at what was the law before the Statute was passed, ' Now, the signature to a deed or document of any kind may b required for a variety of purposes. If it is intended to indi the assent of the party to the contents of the deed or docum it is clear that the signature must be placed on the deed or doe ment when it is complete so that the assent may be given | every part of it. Where, however, the signature is required, for the purpose of expressing the assent of the party to tl contents of the document, but for the purpose of verifying as a copy or identifying the transaction, altogether different siderations arise. The two different purposes which I mentioned, either of which may be intended to be effected b; signature to a document according to the meaning to be git to the word "signed," are well illustrated by the Acts which h been referred to. By the Irish Act the memorial is signed by one of the parties, and the words are express - memorial shall be under the hand and seal of one of the pa Similarly, under the English Registration Act, where memorial is to be signed by one of the parties it is enacted the memorial shall be under the hand and seal of one of the parti In both those cases there can be no question that, as the legisl has expressed the intention that the memorial shall b and approved of by one of the parties to the instrament

we have to see whether that was the object of the legislature ing 6 Geo. IV. No. 22,inits present form. For that purpose necessary to look at the scheme of registration which this Act

sfor. The Proclamation of 1817, which was apparently ist means of registration adopted in New South Wales, pro- ded for a system by which the deed was to be brought for

tration by one of the parties who had to be identified on oath, the execution had to be verified by one of the witnesses to the trument. These things had to be done in the presence of the e Advocate who, on the formalities being completed, himself entered the memorial in the register book. In the preamble 6 Geo. IV. No. 22, that Proclamation is referred to, and the Act is to be passed for the following purpose: - "To confirm the aid Proclamation to a certain extent, and to make more effectual ovision for the future registration of deeds, conveyances, and instruments in writing." Under the system established by Proclamation a party to the deed was not required to sign. fe simply brought the deed to the Judge Advocate, was himself d, and the deed also was identified. I think that Mr. S was quite right in the reasons he stated for the alteration by 6 Geo. IV. c 22. At the time of the Proclamation he settlement of New South Wales was within narrow limits, nd it was not a very difficult thing in the majority of land actions for a party to a deed, who wished to register it, to go to Sydney. But, as settlement spread, that attendance became etically impossible, and therefore some new system was able. One important object then in passing sec. 4 of 6 Geo. . ¢, 22 was to dispense with the personal attendance of one of e parties to the deed, and the method was substituted of uiring his identity in connection with the transaction to be lished by his signature upon the memorial. The intention the section therefore being, not that the memorial should be ned by the party in such a way as to signify his assent to the i ms of the deed, nor to verify the contents of the memorial, to identify him with the transaction, it appears to me we are ig full effect to the section if we interpret the words "signed" smeaning this: - that the signature of the party must be upon

ure must be placed upon the memorial when it is completed. H. C. or A.

the memorial, and it must have been put there at a time was substantially a memorial of the deed which it rept the main object being to ensure that when the memorial presented in the complete form at the Supreme Court o should have upon it the signature of one of the parties identified the transaction. For these reasons, assenting as I to what has been said by the other members of the Court, I. of opinion that the memorial was properly registered. The other question raised by Mr. Cussen is very importa In regard to that Iam very clearly of opinion that the int of this Act was to place equitable instruments upon the footing as legal instruments. Whatever priority is given to_ instrument dealing with the legal estate, is given by the Act an instrument which deals with the equitable estate. Ther again it is necessary to refer to the history of the legislation showing the condition of the law before the Act 6 Geo. IV. 22 was passed. First of all I shall deal with the words of Act itself. I can scarcely imagine language that could be tocover every possible kind of document. Sec. 1 provides tha the document when registered, - "shall have and be a we priority over every other deed, conveyance, or other inst in writing, that is to say, the deed, conveyance, or other ii ment in writing, first registered . . . shall have priority respect of all lands, tenements, or other hereditaments, convey or affected by such deed, conveyance, or other instrument writing over every other deed, conveyance or other insti writing whatsoever and howsoever conveying, charging, or ing the same land, tenements, or other hereditaments." I possible to give a full meaning to those words without inel every kind of instrument dealing with land whether the ti le conferred by the instrument was enforcible in a Court o Equity or in a Court of law. In regard to this part of ease we have the authority of Wharton v. Greville (1). If authority did not, as I think it does, rest upon sound and reasoning, which in itself commends it to my approval, I's still hold the opinion that the law laid down there ough be affirmed upon the very well-known principle - which 1 (l) 1 V.LT,, 76.

Courts in dealing with questions as to title to property - wherever a decision must be taken by reason of its age and eral acceptance by business men, property owners, and the wofession, to have become part of the established law of the y, the Courts will not interfere with it, unless it palpably es some principle of law. This decision, however, need not upported upon any such principle. It stands upon its own

As the question is of some importance it may be well to refer nother matter which may throw some light on the construe- n of this Statute. Before I deal with the New South Wales ion I will refer to the condition of the law in England Treland at the time of its publication. There were two s of registration then in force, one in England and the in Ireland, and the difference between those systems appears the decisions which have been referred to. In 1803 the difference

: - It is impossible not to be struck with the difference be- en the Registry Acts here and in England. Although both were ed in the same year, yet the English Act does not affect to go than to protect purchasers, by declaring unregistered to be invalid as against subsequent registered instruments ; the Irish Act does expressly extend to all deeds, whether are for value or not; and as between them, it gives priority of ion according to priority of registration. If there be two ntary conveyances, and the second deed be registered before t which was first executed, it would, under the 6 Anne ec. 2, € priority of operation over the other deed. The intent, there- , of the Acts in the two countries was not altogether the same ; | after the most scrupulous examination of the Acts in both es, I have not been able to find any words in the English ts equivalent to the fourth section of the Irish Act." it being the difference between the two systems, and the law ng been clearly laid down that the Irish Act applied to equit- well as legal titles, the Governor of New South Wales eded to deal with the matter of registration by the proclama-

1. 3 Jo. & Lat., 267. (2) 3Jo. & Lat., 267, at p. 303.

tion, which inaugurated the scheme on the principle of the E Act, that is to say, not giving priority to every registered inst ment, but dealing only with the protection of subsequent chasers. But when the law of registration was altered

adopted the Irish system, and expressly left out the words the Proclamation protecting purchasers, and gave priority instruments according to the date of registration. In those r cumstances it appears to me not open to contention that decisions on the English Act, by which equitable titles were | out from protection, should be applied to the interpretation of Geo. IV. No. 22, rather than the decisions on the Irish Act upo which 6 Geo. IV. No. 22 was undoubtedly modelled. Ido not thi it is necessary to add anything further to what has been alr said. Iam of opinion upon this second ground also that, if deed was properly registered, it stands upon exactly the footing in respect of protection as if it had been a deed conveyit the legal estate, always however having regard to the oj of the instrument according to its terms. For these rea am of opinion that the memorial should have been admit evidence.

Appeal allowed. Action remitted to Supreme Court of Victoria. qi pondent company to pay the c the appeal.

Solicitor for appellant, W. Leslie Park, Melbourne. Solicitors for respondent, Lewis, Hedderwick & Fookes, bourne.