The Gazette 1927-30

The Gazette of the Incorporated Law Society of Ireland.

[MAY, 1927

the decree of the Court, it frequently appears that they have not been served with notice of the decree, and are not bound ; and an attempt is made to get over the difficulty by giving details of the various enquiries and accounts made and taken in the suit. The Registrar objects to this duty being imposed on him. It is no part of his duty to investigate or inquire into proceedings in the Chamber of a Court consequential on its decree. Such action on his part, when undertaken, is misunderstood, and is, and ought to be, objected to by the County Registrars. On a sale through the Court it is the dutv of the Solicitor for the purchaser to get a transfer from the necessary parties, and the only duty of the Registrar is to register the purchaser and to cancel those burdens on the Register (a) discharged by the exercise of an over– riding power of sale ; or (6) whose owners concur in their cancella– tion ; or (c) whose owners are parties to the suit either originally or by notice, and are bound by the decree of the Court. The Registrar, therefore, notifies Solicitors that where a purchaser of registered land sold by Order of a Court does not lodge in the Registry a transfer from the owner of a first charge in exercise of his power of sale (if any), or from the registered owner with the express concurrence of the owners of the registered burdens, he will not cancel any burden on the Register unless the owner of it is (a) a party to the transfer ; or (6) a plaintiff or defendant in the suit ; or (c) a person who has been served with notice of the decree in accordance with the Rules of the Court. The only proof of service of notice that the Registrar will accept is i. the evidence of the service produced to and accepted by the Court ; or ii. a Certificate of the County Registrar that service of notice of the decree was made in accordance with the Rules of the Court. In future, therefore, if Solicitors for purchasers omit to procure the concurrence of owners of burdens or the proper evidence that they are bound by the proceedings in which the land was sold, their purchasers will be registered as owners subject to the burdens, which will remain on the 'Register till the Solicitors obtain the concurrence of their owners to their cancellation by such application to the .Court in which the land was sold, or otherwise, as they may be advised. Attention is also drawn to the fact that judgment mortgagees have no power of sale. The majority of Solicitors, of course, know this ; but, from transfers lodged in the Registry, it would appear that some do not. ALL communications connected with THE GAZETTE (other than advertisements) should be addressed to the Secretary of the Society, 45 Kildare Street, Dublin.

Registration of Title.

The Registrar has sent following Memorandum, with a request for its publica– tion in the Society's GAZETTE : Attention is drawn to the difficulties and delays in registration caused by the omission of Solicitors for purchasers to obtain the concurrence of the necessary parties to transfers of registered land sold under Orders of the Circuit Courts in mortgage and other suits. It should be clearly understood that the parties necessary to a conveyance of unregistered land on a sale through the Court are also necessary to a transfer on a sale of registered land. On a sale of unregistered land under an Order, the purchaser, to perfect his title, must obtain a conveyance i. from the owner and all persons appearing on the title to have incumbrances on it; or ii. from the first mortgagee exercising his power of sale and conveying the land free from all incumbrances to which his mortgage has priority. (See Conveyancing Act, 1881, S. 21 (1). In the same way, on a sale of registered land under an Order, the purchaser should obtain i. a transfer from the registered owner and the persons entitled to the incumbrances on the register which are to be cancelled on the registration ; or ii. a transfer from the first mortgagee in exercise of his power of sale, if he has one. In practice Solicitors for purchasers of registered land frequently lodge in the Registry transfers which are not executed by the persons above mentioned. The transfer usually lodged is by the registered owner only, accompanied by the Order for Sale. Apparently it is thought that an Order for Sale authorises the Registrar to cancel all the burdens registered on the land. This is not so. An Order of a Court is only binding on the parties to the proceedings in which it was made. Unless, there– fore, the owner of a burden concurs in the transfer to the purchaser, it is necessary to show that he is bound by the decree of the Court in which the Order was made. The persons bound by a decree or judgment of a Court are (a) the plaintiffs and defendants ; and (6) the persons served with notice of the decree or judgment pursuant to the Chancery (Ir.) Act, 1867, S. 66, Rules 7 and 9, and Order 18, Rule 22, of the County Court Orders of 1890, or the corresponding Rule of the Circuit Court Rules when in force. It is to be specially noted that an advertisement for claims in newspapers, or a letter or notice sent by a Solicitor to incumbrancers, is not notice to them within the meaning of the Rule (Duff v. Devlin (1924), 1 Ir. R. 56). When incumbrancers on the Register do not concur in the transfer, and the purchaser is required by the Registrar to show that they are bound by the