Darbyshire v Darbyshire [1905] HCA 28

Darbyshire v Darbyshire [1905] HCA 28 - HCA 1905 case summary — Zoe

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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.

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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

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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

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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.

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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

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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

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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

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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.

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Judgment (153 paragraphs)

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