17 For present purposes I shall treat as established on a prima facie basis and subject of course to the resolution of the matters earlier referred to in a final hearing, that the relevant Defendants are grantors of unregistered mortgages by way of a second mortgage ranking after a first mortgage in each case.
18 Turning now to the grounds of attack upon the caveat, these are essentially that the description of the estate or interest claimed repeated in the reference to the relevant instrument is such as to describe an interest not known to the law in respect of what is Torrens System land. This is because it is said that the Torrens System makes no provision for the mortgage of the fee simple.
19 It is contended that under the Torrens System all that is left after the granting of a registered first mortgage is an interest in the equity of redemption. Alternatively, it is contended that even if, as registered proprietor, such a mortgagor retains a statutory interest equivalent to a fee simple, the granting of an unregistered equitable mortgage could not be "of" the fee simple. It is conceded that the grantee of an unregistered mortgage Torrens System land can properly be described as "equitable mortgagee" when it comes to describing the estate or interest claimed. This is because the mortgagee in those circumstances has, whilst unregistered, no statutory interest but an interest properly described as equitable, recognised nonetheless by the Torrens system; see, for example, Frazer v Walker [1967] 1 AC 569, 580 and 585 and numerous authorities since. It is equitable insofar as it touches the conscience of the mortgagor and insofar as equity will enforce the mortgagee's rights including to be registered.
20 Thus the problem lies solely in the concluding words "of the fee simple in the said land".
21 While it is undoubtedly correct that the Torrens system creates by statute interests which become upon their registration legal interests, it is well settled that the Torrens system does not preclude equitable interests such as that presently before me. The fundamental difference between Old System title and Torrens Title is this. Under old System, the grant of a registered first mortgage is a conveyance of the title by way of mortgage, leaving only the equity of redemption. Under the Torrens system the grant of a first mortgage carves out an interest by way of mortgage which becomes a legal interest upon its registration and which does not merely leave the equity of redemption; the Torrens title mortgagor remains the owner not only in equity but also at law. Prior to registration, such a mortgage operates in equity upon the conscience of the mortgagor. Thus, as is said in Butt "Land Law" LBC 1996 at 536:
"It is common to describe the Torrens title mortgagor's interest as an "equity of redemption". This is acceptable in so far as it recognises the mortgagor's right to seek equity's aid in enforcing rights analogous to those enjoyed by a mortgagor of old system title land,87 including the right to redeem after the contractual date for payment has passed. But in fact the Torrens title mortgagor has more than a mere equity of redemption: the Torrens title mortgagor remains the registered proprietor of the land - the owner, not only in equity but also at law.88 This means that not all of the principles applicable to the equity of redemption in its classical, old system, form can be carried over into the Torrens system.89 For example, a Torrens title mortgagor can pass the "legal" title to the land to a purchaser, and a second or subsequent mortgage of Torrens title land is not a mortgage of a mere equitable interest."