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This section reproduces twenty-one sections of the Irish statutes for the registration of deeds (1869). The article begins with a description of the requirements for registering deeds when the relevant statutes were first enacted by the 6th Anne c.2 s.3 in 1708. It continues by reciting amendments made up till the date of writing, during Queen Victoria’s reign.
Source: Furlong, John Smith, and Edmund R. Digues Latouche. “Registration of Deeds.” Chapter II in, The Law of Landlord and Tenant as Administered in Ireland. Vol. I. Dublin: Edward Ponsonby, 1869. (pp. 456–71.)
Transcriber’s note: — The original text contains numerous footnotes containing references to suits settled in the courts. The footnotes were ordered alphabetically, i.e., (a), (b), (c), &c. While these reference letters have been retained in the transcripts, most of the footnotes have not been reproduced here—for which, interested readers may refer to the original text. Where footnotes have been included, these are shown at the end of the relevant segment.
1. Irish statutes for Registration of Deeds:
By the 6 Anne, c. 2, s. 3, Irish(a), it is enacted, that a memorial of all deeds and conveyances, executed after March, 1708, whereby any lands in Ireland may be anywise affected, shall be registered; and by section 4, that every such deed(b), whereof a memorial shall be registered pursuant to the act, shall be deemed good and effectual both in law and equity, according to the priority of time of registering such memorial, for the lands mentioned or contained in such deed, according to the right and title of the person conveying such lands, against every other deed, or disposition thereof; and by section 5(c), that every deed or conveyance, not registered, of any lands comprised in such deed or conveyance, whereof a memorial shall be registered in pursuance of this act, shall be deemed fraudulent and void, not only against such registered deed or conveyance, but likewise against every creditor by judgment or recognizance, as for and concerning the lands contained in such registered memorial; but it is provided, section 14(d), that nothing in this act shall extend to any lease not exceeding 21 years, where the actual possession goeth along with such lease. The sixth section(e) requires, that every memorial of a deed, or conveyance, shall be under the hand and seal of some or one of the grantors, or some or one of the grantees, his, her, or their guardians or trustees, attested by two witnesses, one whereof to be one of the witnesses to the execution of such deed or conveyance; which witness shall, by affidavit to be made before the registrar, or his deputy, prove the signing and sealing of such memorial, and the execution of the deed or conveyance mentioned in such memorial, and the day and time of delivery of such memorial to the registrar or his deputy. The 8 Geo. 1, c. 15, s. 1, Irish(f), authorizes the heirs, executors, administrators, or assigns of any grantee, in any deed, who shall die without executing any memorial for its registry, to execute a memorial thereof, which is declared as valid, from the time of the registry, as if executed by the immediate grantee. By the 2 & 3 Will. 4, c. 87, s. 29, Irish(g), it is enacted, that in every memorial brought into the office for registry there shall be specified the county and barony, or the town, or county of a city and parish, or the town and parish in which the lands to be affected by such registry, are by the deed stated to be situated, and that every such memorial brought into the office for registry shall be there compared with the deed of which it purports to be a memorial, and shall only be registered if the several particulars required to be inserted in the memorial shall be found to be truly stated from the instrument; and by section 32(h), it is enacted, that in all proceedings before any court of justice, for all purposes whatsoever, an office copy of any registered memorial shall upon such office copy being proved in like manner as an office copy of any other record, be received as evidence of the contents of the memorial, of which it purports to be an office copy, without the production of the original memorial; provided always, that the party producing such office copy shall, if out of Dublin 10 days, and if in Dublin 8 days before producing the same, give notice in writing to the adverse party thereof; and provided, also, that the adverse party shall not, within 4 days after receiving such notice, demand by a counter-notice that the original memorial shall be produced. By the 13 & 14 Vict. c. 72, a new system of registering instruments in Ireland was devised, by making the ordnance maps the basis of such registration(i); and causing land indexes to be made out having relation to such maps(j), and it was provided, that after such maps and indexes should have been completed(k), registration under that act should be commenced. These preliminary steps have never been taken, and this act remains utterly inoperative, and a mere incumbrance to the statute book. The delays, inconveniences, and abuses of the office for the registration of deeds having attracted the attention of the legislature, an inquiry was made into the practical working of the Eegistry of Deeds Office in Ireland by Richard J. Lane, Esq., Q.C.; and his admirable report published in 1861(l), ably and succinctly elucidates the system adopted in that office, and contains many valuable practical suggestions, which it is to be regretted have not been carried into effect. By the 27 & 28 Vict. c. 76, s. 6, no document which under that act ought to have a stamp impressed thereon or affixed thereto, shall be received or filed, or be used in relation to any proceedings in the Registry of Deeds Office, or be of any validity for any purpose whatsoever, unless or until the same shall have the proper stamp impressed thereon, or affixed thereto; provided, that if at any time it shall appear that any such document has through mistake or inadvertence been received, or filed, or used without having, such stamp impressed thereon or affixed thereto, it shall be lawful for the Registrar of Deeds to order in writing that such stamp shall be impressed thereon or affixed thereto; and thereupon, when a stamp shall have been impressed on such document, or affixed thereto, in compliance with any such order in writing, such document and every proceeding in reference thereto, shall be as valid and effectual as if such stamp had been impressed thereon or affixed thereto in the first instance. The 3rd section substitutes(m) certain stamp duties for the fees previously payable, and the act provides the mode in which such stamp duties should be used and applied(n). It likewise provides(o) for the good conduct of the officers, and for the payment of their salaries. By the 28 & 29 Vict. c. 88, provision was made, for the purpose of recording titles to land in Ireland. That act is to take effect from the 2nd of November, 1865; and by the 3rd section there shall be established a record of title to be kept under the control and direction of the Landed Estates Court, to be called “The Record of Title Office;” and by the 4th section, any person, upon obtaining a conveyance from the court of any land or lease, or of any interest therein, shall be entitled to have such conveyance entered in the record, subject to the subsequent provisions of that act. By the 13 & 14 Vict. c. 29, amended by the 21 & 22 Vict. c. 105(p), where any judgment shall be entered up on any order, decree, or rule obtained as therein mentioned, and the creditor under any such judgment, decree, or order, shall make and file an affidavit in conformity with the provisions of those acts, it shall be lawful for such creditor making such affidavit to register the same in the office for registering deeds, conveyances, and wills in Ireland, by depositing in such office, an office copy of such affidavit; and such copy shall be numbered and transcribed, and shall be entered in the books and indexes kept in the said office, in like manner as if the same were a memorial of a deed; and for the purpose of such entries, the creditor under such judgment, decree, order, or rule, shall be deemed the grantee, and the debtor thereunder shall be deemed the grantor, and the amount of the debt, &c., shall be deemed the consideration; and the like fee shall be paid on such registration, as in the case of registering the memorial of a deed. By the 7th section of the earlier act, the registration of such affidavit shall operate to transfer to, and vest in, the creditor registering such affidavit, all the lands, tenements, and hereditaments mentioned therein, for all the estate and interest of which the debtor mentioned in such affidavit should at the time of such registration be seised or possessed at law or in equity, or might at such time create by virtue of any disposing power which he might then without the assent of any other person exercise for his own benefit, but subject to redemption on payment of the money owing on the judgment, decree, order, or rule mentioned in such affidavit; and the creditor and all persons claiming through or under him should, in respect of such lands, tenements, or hereditaments, or such estate or interest therein, have all such rights, powers, and remedies whatsoever, as if an effectual conveyance, assignment, appointment, or other assurance to such creditor, of all such estate or interest, but subject to redemption, had been made, executed, and registered at the time of registering such affidavit.
(a) 7 Anne, c. 20, s. 1, Eng.
(f) 7 Anne, c. 20, Eng.; 25 Geo. 3 c. 47, Ir.
(l) Printed and published at Thom’s, 87 & 88, Abbey-street.
2. Registration of Certificate that Estate and Effects of Bankrupt or Insolvent have invested in Assignees :
The 20 & 21 Vict. c. 60, s. 269, which has been substituted for the 3 & 4 Vict, c 107, s. 34, and with which it substantially corresponds, enacts(q), that where according to law any conveyance or assignment of any real or personal property of a bankrupt or insolvent would require to be registered, enrolled, or recorded in any registry office, court, or place, in the United Kingdom, or in any of the dominions of Her Majesty, then and in every such case a certificate uuder the seal of the court, and in such form as the court may direct, that the estate and effects of the bankrupt or insolvent, have vested in the assignees, shall be registered in such registry, office, court or place, and shall have the like effect to all intents and purposes as the registry, enrolment, or recording of such conveyance or assignment would have had(r); but the title of any purchaser of any such property for valuable consideration bonâ fide, without notice of the bankruptcy, or before the commencement of the imprisonment of such insolvent, who shall have duly registered, enrolled, or recorded his purchase deed, previous to the registry thereby directed, shall not be invalidated by reason of such appointment of assignees, or of the vesting of such property in them, unless such certificate shall be registered within the times following: that is to say, as regards the United Kingdom, within two months of the date of such appointment; and as regards all other places, within 12 months from the date thereof.
(q) 1 & 2 Vict. c.110, s. 46, Eng.; 33 Geo. 2, c. 14, s. 2, Irish.
3. What Memorial should contain :
In order to avoid unnecessary disclosure of private affairs, the 6 Anne, c. 2, s. 7, only required that the memorial(s) of a deed or conveyance should contain the day of the month or year when such instrument bore date, or was executed, and the names and additions of all the parties, and of all the subscribing witnesses, and of the place of abode of the subscribing witness(t) to such memorial who was not a subscribing witness to the deed or conveyance, and should mention(u) the lands, tenements, and hereditaments contained in such deed or conveyance, and the names of all the counties, baronies, cities, towns corporate, parishes, townships, &c., where any such lands or tenements were lying and being, that were conveyed, or any way affected or charged by any deed or conveyance, in such manner as the same were expressed or mentioned in such deed or conveyance, or to the same effect; and that every such deed or conveyance of which a memorial is to be registered, should be produced to the registrar or to his deputy at the time of entering such memorial, who should indorse a certificate thereon, mentioning the certain day and time on which such memorial was so entered and registered; and the registrar or his deputy should sign the certificate when so indorsed; and in all cases where the lands, tenements, or hereditaments contained in any deed or conveyance(v) were not situate in the county of Dublin, or in the county of the city of Dublin, a memorial of such deed or conveyance should be entered by the registrar or his deputy, in case an affidavit sworn before one of the judges at the assizes, or before the justices at the general quarter sessions of the county where such lands, tenements, or hereditaments lie, or before a person commissioned for taking affidavits in the country, should be brought with the memorial to the registrar or his deputy, wherein one of the witnesses to the execution of the deed or conveyance should swear he saw the same executed, and the memorial signed and sealed as by the act directed. By the 27 & 28 Vict. c. 76, after reciting the 6 Anne, c. 2, and the 2 & 3 Will. 4, c. 87, it is enacted, section 1, that if it shall appear that the registration of any assurance registered prior to the passing of that act is defective by reason of the memorial thereof not being written on vellum or parchment, or not being directed to the registrar, or not being attested by two witnesses, or not stating the day of the month and year when such assurance bears date, or the names and additions of all the witnesses to such assurance, or the abodes of the witnesses to such memorial, or by reason of any formal omission or defect in the affidavit of the witness proving the signing and sealing of such memorial, the execution of the assurance mentioned in such memorial, or not stating the day or time of the delivery of such memorial to the registrar, then and in every such case the registration of any such assurance without any amendment or further registry, shall be as good and valid as the same would have been if there had been no such defect in the registration thereof. By section 2 it was provided, that where the registration of an assurance shall, before the passing of this act, have been pronounced by competent authorities wholly invalid, such registration shall not be rendered valid by this act; and where the registration of any assurance shall before the passing of this act have been pronounced by competent authority invalid as to some only of the parties thereto, or as to some only of the lands therein comprised, such registration shall not be rendered valid by this act so far as the same shall have been pronounced invalid; and where any person who would have been barred by any assurance, if well registered, shall before the passing of this act have had any dealings with the lands comprised in such assurance on the faith of the registration of the same being invalid, such registration shall not be rendered valid by this act; and this act shall not render valid the registration of any assurance as to the lands of which any person shall at the time of the passing of this act be in possession in respect of any estate which such assurance if well registered would have defeated, nor shall this act prejudice or affect any proceedings at law or in equity at the time of the passing of this act, in which the validity of the registration of any assurance shall be in question, between the party claiming under such assurance and the party claiming adversely thereto; and the registration of such assurance, if the result of such proceedings shall be to invalidate the same, shall not be rendered valid by this act; and if such proceedings shall abate or become defective in consequence of the death of the party claiming under or adversely to such assurance, any person who but for this act would have a right of action or suit, by reason of the invalidity of the registration of such assurance, shall retain such right, so that he commence proceedings within six calendar months after the death of such party.
(s) 27 & 28 Vict. c. 76, ante, s. 1.
(t) 8 Geo. 1, c. 15, s. 1.
(u) 6 Anne, c. 2, s. 7, Irish.
(v) 25 Geo. 3, c. 47, s. 3.
4. Memorial of Deeds executed in Great Britain affecting lands in Ireland :
Deeds executed in Great Britain affecting lands in Ireland may be registered(w) on a memorial signed, sealed, and attested as in other cases, and verified by the affidavit of one of the witnesses to the deed, made before a Commissioner Extraordinary of the Court of Chancery of Ireland for taking affidavits in Great Britain; and by complying with the forms prescribed by this act, the necessity of producing the original deed intended to be registered at the office in Dublin is dispensed with.
(w) 3 Geo. 4, c. 116, Irish; 8 Anne, c. 10, Irish.
5. Memorial of Deed not naming Lands :
Where a deed conveys in general terms all the lands of which the grantor is seised, for instance, all the grantor’s lands situate in the county of Galway, without specifying any particular denomination, or where a lease demises a farm situated in a specified barony and county as formerly held by a preceding tenant, without any name or other description of the land, it has been ruled(x), that a valid registry of such an instrument may be effected by a memorial framed in terms as general as the deed. Previous to the passing of the 27 & 28 Vict. c. 76, s. 1, the omission in a memorial of the day of the month or year on which the deed was executed was held(y) to be a fatal objection to the validity of the registration; but that section cured any such defect in a memorial registered prior to the passing of that act.
6. Effect of Variance between Deed and Memorial :
It is the registrar’s duty to ascertain by comparison that the memorial offered for registry contains a correct statement of the instrument intended to be registered, and on discovery of any material variance between them, to reject the document; but if the registry be completed, it would not, even prior to the 27 & 28 Vict. c. 76, have been avoided by any variance between the denominations of land in the lease and in the memorial; for even if a chief denomination of land specified in the deed were omitted in the memorial, the grantee or lessee would only have been deprived of the benefit of registry in respect of the land omitted. The object of the Registry Act was to afford the means of inquiring what incumbrances affected the property, and for that purpose a variance(z) between the deed and memorial is not material, as to any statement unnecessarily introduced into the memorial.
7. How Memorial to be witnessed; Execution of Lease by Grantor :
The memorial of a deed for registry may be executed either by the grantor, or by the grantee or lessee; but it was held to be necessary that one of the witnesses to the memorial should be a subscribing witness to the execution of the deed by the grantor or party from whom the estate moved(a); and a lease could not have been effectually registered upon a memorial executed solely by the grantee(b), unless the affidavit verifying such memorial showed that the lease had been not only executed by the lessee, but also by the lessor, in presence of the witness making the affidavit.
8. Execution of Memorial after Death of Grantee :
A deed or lease may be registered after the death of the grantee or lessee, on a memorial executed by the heirs, executors, or assigns of such grantee or lessee(c), in the presence of two witnesses, one of whom was a subscribing witness to the execution of the deed or lease by both parties; and it is not requisite that such representative or assign should become an executing party to the deed or lease for that purpose. The owner of lands by deed, in August, 1836, conveyed his interest to his son L.; and the latter, by his will, made in May, 1838, bequeathed a term of 500 years in the premises to trustees, to the use of D. for his life, with remainders over: the testator died in 1839, and his father died in June, 1840. D., who was not the testator’s heir, registered the conveyance of August, 1836, in February, 1840; and this registry was held(d) effectual against a conveyance subsequently executed by the father, of the same lands, in favour of a third person, which was duly registered in May, 1840, as D. was considered to be “an assign” within the meaning of the Registration Act.
9. Prior Unregistered Deed postponed to Registered Deed, though by different Grantors :
It appears from the language of the 4th & 5th sections of the 6 Anne, c. 2(e), that the legislature meant to afford an effectual remedy against the mischief arising to purchasers for valuable consideration from a subsequent discovery of secret or concealed conveyances, whether the person executing the second deed claims under a registered conveyance, or whether he is seised or possessed, proprio jure, or is in under a title which has come to him by act and operation of law. An unmarried woman, being possessed of lands in Ireland for a term of years, upon her marriage, by indenture executed by her and her intended husband, assigned the term to trustees, upon trust to permit her intended husband to receive the rents and profits for life, with remainder to the wife for life, with remainder to the first and every other son of the marriage successively. The marriage was celebrated, and the husband entered into possession, and afterwards made a lease of the premises, for part of the term, rendering rent. The lessees entered, and assigned their interest for valuable consideration; the lease made by the husband was registered, but the marriage settlement was never registered; the wife, who survived her husband, obtained possession, and the assignees of the leasehold interest brought their ejectment. It was held by the House of Lords (f), reversing the decision of the Irish Court of Exechequer [sic], that the title of the assignees of the lease was to be preferred to the title of the widow, and that the neglect to register the assignment of the lease(g) did not invalidate the claim of the assignees, because the unregistered assignment passed the interest in the lease, as between the lessee and the assignee, and there was no conflicting claimant under a registered deed. In the same case, it was laid down(h), that if a person, upon the marriage of his youngest son, settle his property on himself for life, with remainder to his eldest son for life, with remainder to the youngest son, his wife and children, in strict settlement, and the deed is not registered, and if upon the father’s death the eldest son, supposing that he had the fee-simple, conveyed by a registered deed to a purchaser for valuable consideration, the younger son, his widow or children could not defeat the estate limited to the purchaser, although the settlement and the conveyance were made by different grantors. Where a tenant for life under an unregistered settlement granted a lease for a term, provided his title should so long subsist; It was held(i), that the lease when registered, displaced the settlement, and that the lessee became entitled to hold for the term, unaffected by the fact of the lessor having been at the date of the lease only tenant for life(j). A registered conveyance by a person out of possession cannot have a greater effect by force of the Registration Act, than it would if that act had not been passed(i). The statute does not enact that a purchaser by a registered deed shall acquire any title by the conveyance to him(l), but merely avoids, and puts out of his way, an unregistered conveyance which would otherwise interpose against the title conveyed to him, and leaves the title of the purchaser by the registered deed in the same condition in which it would be if the unregistered deed had not been executed. The expressions used in the 4th section, that every deed shall have priority from the time of its registry, “according to the right, title, and interest of the person conveying,” are explained by Lord Redesdale to mean(m), “according to the right, title, and interest which such person had to make a conveyance, which would have been good, if such prior conveyance had not existed.” The principles on which the decision of the House of Lords is founded establish(n), that a person in possession of landed property, of which he is the apparent owner, and which he would have good right and title to sell, only for the execution of an unregistered instrument by a former owner, may convey, assign, or incumber such property by a registered deed to a purchaser for value, and without notice; and the effect of the registry of such subsequent deed is not only to postpone the prior unregistered instrument, but to avoid its operation, so far as it interferes with the registered instrument. An unregistered instrument, though void so far as it interferes with a subsequently registered deed(o), continues binding on the party conveying, and those deriving under him.
10. Whether Unregistered Deed prevails against an Execution :
Where O., who was possessed of a term for years, assigned his interest by an unregistered deed, and under an execution against the goods of O., the sheriff sold and assigned the residue unexpired of the term to A., who registered the assignment; It was decided(p), that the prior unregistered assignment should prevail over the registered conveyance from the sheriff, because the sheriff’s title was incapable of registry; and the assignment from him, though registered, could not avoid the prior unregistered deed. It has been laid down(q) that when the conflict is between two deeds, of which the deed which is alleged to be postponed by reason only of the registry of the other, and which but for such registry must have had priority, is not capable of being registered, registration will not give the other priority.
11. Omission to register Deed not supplied by Registration of Assignment :
The omission to register a lease cannot be supplied by registering(r) an assignment of the interest, containing a recital of the lease. Where H. by an unregistered deed conveyed to his son a fee-farm, and after his son’s death conveyed the same lands to M. by an unregistered deed; M. afterwards conveyed by deed duly registered to A.; It was ruled(s) that the prior conveyance, though unregistered, should prevail against the subsequent grant to A., though registered, because the original grantor, after making the grant to his son, had nothing left in him which he was capable of conveying, except by a registered deed executed by himself.
12. Leases in Possession not exceeding 21 years excepted out of Statute :
Leases not exceeding 21 years, where the actual possession of the lands goes along with the lease, are excepted out of the operation of the statute; and Mr. Furlong thought that the absolute transfer(t) of such leasehold interests came within the meaning of the exception, because, while the visible occupation accompanied the lease, no one could be deceived. It is quite reconcileable(u) with the policy of the act, that the dealings of occupying tenants holding under such short leases should not be subjected to the trouble and expense of registry. It has, however, been said that it was necessary(v) to register the assignment of such a lease; and it has been decided(w), that leases in possession for terms not exceeding 21 years, when registered, were not excluded, as against prior unregistered instruments, from the benefit of registration by the foregoing act. A mortgage or assignment of a leasehold interest held for a term not exceeding 21 years, and unaccompanied by actual possession, must be registered(x), because there must be a visible or ostensible occupation in order to satisfy the object of the act, and a mere possession by receipt of rent is insufficient. By 8 Geo. 1, c. 2, s. 5, Irish, which has been repealed by the 23 & 24 Vict. c. 154, every mortgage of any lease, and every assignment, thereof, should have been registered, in such a manner as was required by the Registry Act within six months after the perfection thereof; and in default of registry of such mortgage or assignment, it was rendered unnecessary that the mortgagee or assignee should be served with an ejectment for nonpayment of rent.
13. Tacking of Mortgage Securities in Ireland :
By the rules of equity observed in England, if a third mortgagee obtain a conveyance of the legal estate by purchasing the first mortgage without notice of any intervening mortgage at the time of lending his money, the third mortgagee by reason of such purchase, though effected pendente lite, must be paid both demands(y), in preference to the intermediate incumbrancer. A similar doctrine of tacking securities applies in Ireland, except where it has been excluded by the operation of the Irish Registry Act(z).
14. Equitable Estates gain Priority by Registration :
A registered instrument which affects lands in Ireland, whether it conveys a legal or only an equitable title, must prevail against an instrument subsequently registered according to the priority of the registry(a), but still according to the rights and interests of the person conveying, and full force and effect is given to equitable articles, if registered, against a legal conveyance; so that the Irish statute has given to registered contracts an operation with respect to lands which they have not in England(b). A mortgage, having been executed for a sum of £2500, and all such further sums of money as the mortgagee should advance upon any bond, note, or receipt, was duly registered, but no notice was taken of the borrowing clause in the memorial of registry. The mortgagor afterwards confessed a judgment to P., and the mortgagee, without notice of the judgment, lent a further sum of £1200, under the borrowing clause: upon a bill filed by the judgment creditor, it was held(c), that the judgment should be postponed to the subsequent loan.
15. Registered Conveyance takes Precedence of Equitable Mortgage by Deposit of Deeds:
An equitable mortgage created by the deposit of title deeds does not come(d) within the meaning of the Middlesex Registry Act, which only refers to the registration of deeds. By the 4th section of the Irish Registry Act, every registered conveyance gains priority(e) against any other disposition of the tenements comprised in the memorial, which, together with the general tenor of the act, appears sufficient to embrace any disposition of the property capable of registration. It would appear that a deposit of title deeds, unaccompanied by any document whatever, could not be made the subject of registration, as there is, in fact, nothing to be registered(f).
16. Effect of Registered Deed upon intervening Judgments against prior unregistered Deed :
The clause of the Registry Act postponing an unregistered deed not only to a registered deed, but to an intervening judgment debt, was not intended to apply to judgments indiscriminately, but to obviate the difficulty which would arise from postponing(g) the deed subsequently registered, as the law had not postponed judgments in the same way. The legislature, in that particular instance, gave a preference to judgments which it would not otherwise have done, in order to put them in their proper position with respect to the subsequent deed. Every thing then came in the order prescribed by the clause; and the effect of the clause was to give judgment creditors not only the priority which they before had against the registered deed, but a priority against the unregistered deed which they had not before, and which was conferred for the sake of the registered deed, as the several incumbrances could not otherwise be arranged for the benefit of the registered deed. A difference of opinion existed between the Court of Exchequer(h) and Lord Redesdale upon this subject, but his opinion that a preference was only intended to be given to judgments intervening between conflicting deeds was fully established(i); and it was settled, that an unregistered instrument retained its priority over a judgment subsequently entered(j), unless a person claiming under a registered deed sought to avail himself of his priority. The importance of this question has been diminished, as judgments recovered after the passing of the 13 & 14 Vict. c. 29 (15th July, 1850), must be registered under the 6th section of that act, in the Office for Registering Deeds(k), before they can affect lands or tenements. By the Registration Act, priority is only conferred on a deed from the time of its registration, and such priority is confined to lands specified in the memorial; for if the deed comprise lands by name which are not mentioned or included in the memorial, no priority is obtained in respect of the lands omitted(l).
17. At Law Claimant by Registered Deed entitled to Priority, though with Notice of Unregistered Deed :
Two conflicting assignments of the same lease having been executed, the assignment which was last made was first registered; and though it appeared that the party deriving under the last assignment was fully aware when it was registered of the prior execution of the earlier assignment, it was held(m), that in a court of law the instrument which was last registered was fraudulent, and void against the instrument which was first registered. A person taking or purchasing lands with notice of a prior unregistered incumbrance will in equity be bound by such incumbrance(n), though he has acquired priority at law by registration of his deed(o).
18. Effect of Notice in Equity upon Claimant by Registered Deed :
A purchaser with notice may be bound by a prior judgment or unregistered deed(p); but it must be satisfactorily proved that the person who registers the subsequent instrument must have known exactly the situation of the parties having the prior deed, and that he registered the subsequent deed in order to defraud them of the title which he knew at the time was in them. It is only by actual notice(q), clearly proved, that a registered conveyance can be postponed, and even a lis pendens is not deemed sufficient notice for that purpose(r).
19. Registration confers Priority, but not does not constitute Notice :
Proof of actual notice consists in tracing direct knowledge of the fact to the party, his agent, or solicitor, in the course of the same transaction. Constructive notice is no more than evidence of notice arising from presumptions(s) so strong that the court will not suffer them to be controverted. If a person agree to purchase under limitations in a deed, which make it necessary(t) for him, upon that transaction, to look into the deed, and that such deed contains recitals of judgments affecting the lands which he has agreed to purchase, he is bound by those judgments; for he had a right to see the whole deed, under which he purchased, and must be taken to have seen the whole, and consequently must be presumed to have had notice of everything affecting his purchase. If a person dealing for property employs an agent who knows of an incumbrance affecting it, the knowledge of the agent is presumed to be communicated to the principal(u), though the latter may be unconscious of the existence of the incumbrance; provided such implied notice be acquired in the course of the same dealing(v). Where, however, a transaction is so recent, or so closely connected with another, that the party must have had the matter in his recollection, such notice may be binding, though derived from a wholly different transaction(w). A person having notice of an unregistered equitable claim, may safely purchase(x) from another who bought bonâ fide, and without notice, for otherwise the original purchaser could not enjoy the benefit of his own unexceptionable title; and though a person has notice of an unregistered(y) equitable claim, a bonâ fide purchaser from him without notice is not liable, as he stands perfectly innocent. No purchase is made of lands in Ireland without searching the registry, but a registry search is not notice to all intents; for, if taken to be constructive notice, it should then be deemed notice of everything(z) contained in, or referred to by the memorial, and should also be notice, even if the instrument were defectively registered. The discovery of an incumbrance by means of a registry search is actual notice of its existence, but does not fix the purchaser with notice of a matter contained in the registered deed which might lead to inquiry(a); and if the purchaser has not notice by means of the registry or otherwise of an incumbrance affecting the lands, the opportunity of discovering its existence by an examination of the register does not bind his conscience either with actual or constructive notice, and such incumbrance is only entitled to the priority conferred by the act.
20. Effect of Execution of Power of Appointment against prior Judgments :
Where an estate was limited to such uses as the owner should appoint, and in default of appointment to himself in fee, and the party so entitled confessed a judgment, and then appointed the lands to a purchaser; It was decided(b), that the appointee took discharged [sic] of the judgment debt, because the estate was vested in him under the power; and though the purchaser was previously aware of the existence of the judgment, he could not even in equity be affected by such notice, as he had only got notice of a lien, which the law enabled the purchaser to displace.
21. When Purchaser affected with Notice of Leases by Occupying Tenants :
A purchaser of an estate in possession of occupying tenants, is chargeable with notice to the extent of their interests as tenants(c), and is bound to inform himself of the leases respectively holden by them. Where a tenant contracted to buy the timber upon the lands from(d) his landlord, a purchaser of the estate was held bound by the contract, though he had no notice of it. Where a purchaser under a registered deed had not express notice of an alleged parol contract, under which the tenant was in possession; It was laid down that the purchaser did not take the land subject to such alleged contract, as he had not that “clear and undoubted notice” which was necessary to affect a party claiming under a registered deed; and it was held(e), that such parol contract was not “an existing lease or letting” within the meaning of the deed, which conveyed the land subject to the existing leases and lettings made to the under-tenants by the vendor. Where premises are unoccupied, the purchaser is not bound to inquire of the last occupier(f) what was the nature of his title, and will not be held bound by implied notice of the information which might have been obtained by the inquiry; and if an occupying tenant, at the time of the purchase, hold under a derivative lease, and has no knowledge of the covenants contained in the original lease, a purchaser cannot be fixed with constructive notice in consequence(g) of not pursuing his inquiries through every derivative lessee, until he arrives at the person entitled to the original lease, which can alone give him information of the covenant. However, there must be actual notice of the existence of a lease, or other incumbrance, in order to avoid the effect of registration; and although the conveyance to a purchaser recite(h) that the lands are in possession of J.S., as tenant, the lease, if it exceed 21 years, and be unregistered, cannot be suffered to prevail against the registered deed. Neither constructive notice, nor gross negligence on the part of the purchaser, will be sufficient to postpone his prior registry.
End notes :
Source citation for this page: Furlong, John Smith, and Edmund R. Digues Latouche. “Registration of Deeds.” Chapter II in, The Law of Landlord and Tenant as Administered in Ireland. Vol. I. Dublin: Edward Ponsonby, 1869. (pp 456–71.). Transcript by Alison Kilpatrick, 2016-08-18. Published to Arborealis, online at arborealis.ca/records/irish-deeds/irish-statutes-1869/, accessed [insert date].
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Published 21st May 2021; updated 26th Nov. 2023; edited 7th Jan. 2024.