to a register whole parishes en bloc, without any previous investigation of title or inquiring into prima facie title, necessarily implies that the registers shall be of a type somewhat different from that now in operation in London. It is the form of the register, and the manner of effecting registration of transactions, that constitute the principal difference between the registration now in vogue in London and the system I propose.

2. The method of keeping the registers to be set up by the Bill will differ from the method now in use in London in two main features. In the first place, the present system of according a State guarantee of title with respect to all land on the register (even land registered with possessory title being now the subject of a qualified guarantee as from the date of first registration) should be abrogated; in the next place, every registry should contain two registers, on one of which will be placed all land whose title is guaranteed by the State, and on the other all land whose title is not guaranteed. The two registers proposed will be called, respectively, the Provisional register and the Permanent register. When all the registrable land in a registration district comes automatically on to the register, it will be the Provisional register on which the land is thus placed. Land on the Provisional register will not be the subject of any State guarantee of title whatever. Land to which a guaranteed title is required must be transferred from the Provisional to the Permanent register, and the title conferred in respect of land placed on the Permanent register will be in the nature of the absolute title under the existing Acts. The title to any land proposed to be placed on the Permanent register will have to be approved by the registrar, and of course investigated, if necessary, in the usual way. After land has been for some prescribed time (such as six or ten years) on the Provisional register, the registrar will have power to transfer it to the Permanent register of his own motion and without any formal request from the owner. Thus the Permanent register will be as nearly as possible the same thing as the present London register would be if only absolute titles were registered. The Provisional registers will differ very considerably from the present London register and from the new Permanent registers.

The Provisional registers are intended merely to facilitate the ultimate placing of all land on the Permanent registers, and in the meantime to secure such of the advantages of registration as can be secured without State guarantee of title. In form, the foliums, pages, or constituent parts of a Provisional register may be made up as a Permanent register is made up; but it will be essential that no official certificates or copies of the entries in a Provisional register

be issued. The registers, in fact, will only be kept in the same way as the Permanent register is kept for the sake of conveniently summarizing the state of a title, and not in order to accord to the statements made any official sanction. The 'register' itself, indeed, will not be the most valuable part of the Provisional register machinery. The most important difference between Provisional and Permanent registers will consist in this: whilst the statements made in a Permanent register of title are the vital part of the system, and the documents filed (but not directly forming part of the register) are merely of subsidiary importance, in the case of a Provisional register it will be the filed documents themselves that form the really valuable part of the whole registering apparatus, the statements in the register of title having no special efficacy imparted to them by statute. No State guarantee of title being accorded to landowners whose land is on a Provisional register only, the strength of their title will necessarily depend on the validity of the actual documents that constitute steps in the title, just as at present in the case of unregistered land. Investigation of title will have to be undertaken with respect to land on a Provisional register precisely as it is undertaken in the case of unregistered land. Hence the actual file of executed documents is all-important, and the register of title a secondary matter, in the case of a Provisional register. The file of documents will, in fact, become a sort of Deeds registry, and it will be necessary that the registered documents should be treated as in a Deeds registry, and be open to the public for search and investigation. Of course, as in the case of other Deeds registries, only copies or duplicates of the actual conveyances, mortgages, &c., need be filed. The necessity for registering a document (conveyance, mortgage, &c.) will, however, do a great deal towards clearing titles and simplifying their investigation. Registration, in the case of land on a Provisional register, will be just as essential to the validity and complete operation of a document as in the case of land on a Permanent register. In the one case the document will have operation by virtue of its own intrinsic efficacy plus registration; in the other case the statement in the register only will have any efficacy in conferring title. It seems probable that landowners will, after their land has been for some time on a Provisional register, voluntarily take steps to have it transferred to the Permanent register, in view of the additional advantages afforded by the State guarantee of title.

3. One evil of Deeds registries is the enormous accumulation of records that have to be searched through, when investigation of prior title is not abrogated. Settlements, in particular, are respon

sible for a considerable increase in the number of documents of title brought into existence. By inducing settlors to adopt the personalty, rather than the strict, form of settlement, and thus vest the entire legal ownership of the settled property in trustees, a good deal can be done towards reducing the number of documents that need appear on a title and that need be registered.

The suggested Bill should contain two sets of provisions upon this subject. It should be provided that no one can, by registering any document, have vested in himself any legal estate less than a fee simple or term of years varying from twenty-one to ninetynine, and the creation of long terms of years (say more than 100 years) should also be forbidden. Other interests, for life, &c., should be of the nature of charges, and not estates in the nature of ownership of the land. In particular, it would be a great advantage to abrogate estates tail for the future. Subsidiary interests in land, as the interests of beneficiaries under a settlement, would then not require registration any more than in the case of a stock settlement, unless for the protection of persons dealing with the owners of the subsidiary interests.

For the protection of persons dealing with owners of interests in land less than the fee simple or a whole term of years, the following plan might be adopted, having the collateral advantage of relieving the public registers of much unnecessary weight. Let all interests in land less than the fee simple or a term of years be regarded as in the nature of personalty and subject to the rule in Dearle v. Hall, so that priority between conflicting assurances as incumbrances would go according to the time of giving notice to the trustees of the fee simple, &c., and not according to the time of the instrument being executed. Notice of an assurance or incumbrance would then have to be given to the trustees as a matter of course. Let it further be made part of the duty of every set of trustees to keep a record of all notices of this kind received by them. This record could be kept in the form of a few additional sheets of paper at the end of the settlement, and a proper receipt for the notice could be obtained by the incumbrancer. When the settlement came to an end, the record of course would be closed with it, and much unnecessary ephemeral matter would thus be kept off the public registers.

I have shortly indicated what appears to be a workable scheme for amending the Land Transfer Acts. Although it seemed best to describe the outline of the scheme in general terms rather than enumerate clause by clause of a formal Bill, I have nevertheless worked the scheme out in detail to some extent by drafting a Bill in proper form and with necessary machinery clauses. This draft

Bill comprises only twenty-two clauses and two schedules, so that the scheme cannot be called inordinately long or complex. Moreover in this draft are included, besides purely machinery clauses, provisions for improving the existing Acts on the subject of the legal estate, mortgages, &c., the necessity for which is generally admitted, and need not be enlarged upon here.

JAMES EDWARD HOGG.

297

THE RIGHTS OF SECOND MORTGAGEES REGARDING

THE

POSSESSION.

HE generally recognized disadvantages of a second mortgage are, chiefly, (1) the risk, consequent upon the legal estate being outstanding in the first mortgagee, of a subsequent incumbrancer acquiring the first mortgage and tacking his security; (2) the existence of an undisclosed equity prior in date to the second mortgage; and, of course, (3) the possibility of the first mortgagee realizing his security at a sum only sufficient to satisfy his own needs.

Of these the latter is not the least, but a second mortgagee is apt commonly to consider that, should the risk of such a sale become imminent, he may be able to avert it as he frequently does-by taking possession of the property and paying the first mortgagee his interest regularly, keeping down the outgoings, and out of the remaining rents and profits of the land executing the necessary repairs and making good the depreciation the security may have suffered. This course of action, more often than not, perhaps, is likely to satisfy the needs of the situation, and it is probably more resorted to in practice than the alternative of appointing a receiver under the Conveyancing Act, 1881, s. 19, because the powers of a statutory receiver are very limited, and because he has no power of leasing, and for other reasons. To take possession being, then, usually the first and best resort of a 'puisne' mortgagee threatened with disaster, it is a matter for some surprise that an incumbrancer not having the legal estate cannot as such recover possession of the land at all by any process short of foreclosure or redemption (except possibly in the case of a registered charge under the Land Transfer Acts).

So entirely is this the case that even a first charge gives no right to the holder who happens to be without the legal estate to enter into possession either against the mortgagor or against a stranger wrongfully in possession, and such an incumbrancer is, equally with a second or subsequent mortgagee, unable to maintain an action for the recovery of land.

This does not mean that if an incumbrancer having no legal estate actually takes possession he cannot maintain it once acquired. He can, of course, in fact do so-as any other usurper can-against all the world save the owner of the legal estate, and, for instance, he can bring an action to restrain trespass or entry (which is not an 'action for the recovery of land'), Spear's, &c., Ltd. v. Spear,