Country prac

tice.

Partition.

"allowance and amount of costs. Provided always, "that no such rule or order shall have the effect of alter"ing the principles or rules of decision of the said Court, "or any of them, or of abridging or affecting the right "of any party to such remedy as, before the passing of "this Act, might have been obtained in the said Court, *but may in all respects extend to the manner of obtain

66

ing such remedy by regulating the nature and form of

process and pleadings, and the practice of said Court as "regards the method of taking, receiving, publishing, "using, and hearing of testimony, the examination of "witnesses or parties, or any other matter or thing which

66

may seem expedient for better attaining the ends of "Justice, and advancing the remedies of Suitors in the "said Court."

Under the very ample powers given by this section, the Court has issued the orders of 1850 and 1851, which will be found in their proper order in the following pages.

The conduct of causes in Chancery has been, until recently, necessarily confined to Toronto, where the Court is situated, and the Master's and Registrar's Offices kept. An Act of last Session, 13th and 14th Vic. Ch. 50, dated 10th August, 1850, entitled, " An Act for the more

effectual Administration of Justice in the Court of Chancery in Upper Canada," effects an important change in this respect. It empowers the Judges to appoint Masters and Deputy Registrars "in such localities as the said Judges may consider necessary and expedient for the purpose of promoting as far as possible the local administration of Justice ;" and to make rules and orders for regulating such offices of Master and Deputy Registrar, and specifying what business may be transacted in them.

The Orders made under this Act will be found near the end of this volume.

This Statute also provides for the Partition of Estates held in joint tenancy, tenancy in Common or Coparcenery. 13 and 14 Vic. The same power in this respect is given to the Court as Sec. 4,5,6. is exercised by the Court of Chancery in England, and as

Ch. 50,

is given to the Courts of Queen's Bench and the County Courts in Upper Canada.

to notice to

Among the numerous questions arising in a Court of Change in the Equity was one of frequent occurrence, as to which the law law with regard is materially altered by a recent Act. It was the acknowl- purchasers, of outstanding edged rule in Equity, that a bona fide purchaser of real encumbrances. estate for value, purchasing and paying his money without notice of any previous Conveyance, could defend his title against a prior purchaser. And under the Registry Laws of this Province, as they formerly stood, such a title could be so defended,although the holder of it had not registered his deeds. Nor was the mere fact of registration necessarily notice to a purchaser, unless he searched. But, if he searched the Registry Books, he was bound by notice of their contents. And the same with regard to Judgments. It may here be noticed with regard to this subject of notice, that a purchaser should always make himself acquainted with all circumstances affecting the possession of the land. If a third party, and not the vendor, is in possession, the purchaser should enquire of the third party by what title he holds, for he will be bound by his title if he have one. And it was a rule with respcct to the plea of " bona fide purchaser for valuable consideration without notice," that it must contain an averment that the vendor was at the time of the purchase in possession. And, although pleas are now abolished, if under the present practice such a defence is set up by answer, this averment should still be made.

Ch. 63.

Notice.

13 and 14 Vic.

The Act of 1850 alters the law as to all conveyances 13 and 14 Vic. executed after the 1st of January, 1851. The following Registration sections it has been thought advisable to give in full :— 2. And be it enacted, That a judgment to be entered up against any person in any Court of Record in Upper Canada after the first day of January, one thousand eight hundred and fifty-one, shall operate as a charge, so soon as a certificate of such judgment shall have been duly registered, upon all lands, tenements, and hereditaments situate within the county where such certificate shall have been registered as aforesaid, of or to which such person shall at the time of registering such judg

Ch. 63. How registered judgments shall affect lands, &c.

Remedies of judgment creditor.

Proviso as to notice.

tered.

ment, or at any time afterwards, be seized, possessed or
entitled, for any estate or interest whatever at law or in
equity, whether in possession, reversion, remainder or ex-
pectancy, or over which such person shall at the time of
registering such judgment, or at any time afterwards have
any disposing power, which he might without the assent
of
any other person exercise for his own benefit, and shall
be binding against the person against whom judgment
shall be so entered upon and registered, and against all
persons claiming under him after such judgment and regis-
try, and shall also be binding as against the issue of his
body, and all other persons whom he might without the
assent of any other person cut off and debar from any
remainder, reversion or any other interest, in or out of
the said lands, tenements,or hereditaments; and that every
judgment creditor shall have such and the same remedies
in a Court of Equity against the hereditaments so charged
by virtue of this Act or any other part thereof as he
would be entitled to in case the person against whom such
judgment shall have been so entered up and registered, had
power to charge the said hereditaments, and had by writ-
ing under his hand agreed to charge the same with the
amount of such judgments--debt and interest; and all such
judgments shall be claimed and taken to be valid, and
effectual according to the priority of registering such certif-
icates. Provided nevertheless, that nothing therein
contained shall be deemed or taken to alter or affect any
doctrine of Courts of Equity, whereby protection is
given to purchasers for valuable consideration without
notice.

All deeds, devi- 3. And be it enacted, That after any Grant from the
ses, &c., exe- Crown of any lands in Upper Canada, and Deed Patent
cuted after 1st thereof issued, every deed, devise, or other conveyance
January, 1851,
to be regis- which shall be executed at any time after the first day of
January, one thousand eight hundred and fifty-one, where-
by any lands, tenements or hereditaments in Upper Can-
ada may be in any wise affected in Law or Equity, shall
be adjudged fraudulent and void, not only against any sub-
sequent purchaser or mortgagee for valuable consideration,
but also against a subsequent judgment creditor, who shall
have registered a certificate of his judgment, unless such
memorial be registered as by the said first recited Act* is
specified before the registering of the memorial of the
deed, devise or conveyance, or the certificate of the
judgment, under which such subsequent purchaser, mort-

This is the Registry Act of 1816, 9 Vic. Ch. 34.

gagee or judgement creditor respectively shall claim, subject nevertheless as to devisees, to the provisions contained in the twelfth section thereof. Provided always, that nothing herein contained shall be construed to affect the rights of equitable mortgagees as now recognised in the Court of Chancery in this Province.

Proviso.

the date of reg

istry.

4. And,whereas the Doctrine of Tacking has been found Deeds, &c., to to be producive of injustice, and requires correction: take priority Be it enacted, That every deed and conveyance executed according to after the first day of January, one thousand eight hundred and fifty one, a memorial whereof shall be duly registered, and every judgement recovered after the date last aforesaid, a certificate whereof shall be duly registered, shall be deemed and taken as good and effectual both in Law and in Equity according to the priority of the time of registering such memorial or certificate; and, when no memorial of such deed or conveyance shall have been duly. registered, then such deeds or conveyances shall be deemed and taken to be valid and effectual, both at Law and in Equity, according to the priority of time of execution.

7. And be it enacted, That the Registry, or Registry Certificate of of any certificate of judgment as hereinbefore mentioned, judgment may shall be deemed and taken to be a registry of such judg- be registered. ment for the purposes of this Act.

8. And be it enacted, That the Registry of any deed, Registry to be conveyance, will or judgment under the first recited Act, deemed notice. or this Act, affecting any lands or tenements, shall in Equity constitute notice of such deed, conveyance, will or judgment, to all persons claiming any interest in such lands or tenements subsequent to such registry.

for registry of judgments.

9. And be it enacted, That the Register of every Separate book County in Upper Canada shall, after the passing of this Act, enter in a separate book to be kept for that purpose the certificates of all judgments brought to him for registration, and prepare an alphabetical index thereto.

As regards judgments which have already been registered under 9 Vic. Ch. 34, they may be rendered of the same effect as if registered under the above Act, by complying with the following provision of the first section, "that whenever any judgment shall have been registered before the passing of this Act, the party in whose favour the same shall have been rendered, may require the Registrar of any County to mark on the margin of such registry, and sign the same " Registered thisA. D. eighteen,

day of

Re-entry of registration of judgments already regis

tered.

and such entry of registry shall have the same effect from such dates as if it had been registered under this section." That is, the same effect as docketted judgments in England before the practice of docketting was there discontinued. And it is submitted, that under the above 7th and 8th sections, taken with the first, such formerly effect of the registered judgments with the new entry made as above prescribed, will stand in precisely the same position from the date of the new entry, as judgments entered up and registered after the 1st January, 1850; and such would seem to have been the intention of the Act.

Intention and

Act.

Judgment creditors parties to Bills.

Proviso as to bona fide purchasers.

Tacking.

All the holders of such registered judgments and conveyances will have the right to redeem as against a prior encumbrancer, and will be proper parties to bills, to redeem and foreclose; and their rights cannot be extinquished without their being so made parties.

The proviso at the close of the above second section, taken in connection with 8th section, can only affect a small class of cases. The old rules will hold in cases where the question lies between two encumbrancers, neither of whom have registered, and the same would have been the result, had the above proviso been omitted, for the other provisions of the Act do not apply to such cases.

The doctrine of Tacking,which is done away with by the above 4th section, had been, though with some remarks as to its inconvenience, held to apply in this country. It is thus defined by Mr. Justice Story in his Equity Jurisprudence, sec. 412, "Uniting Securities given at different times, so as to prevent any intermediate purchasers from claiming a title to redeem, or otherwise to discharge, one lien, which is prior, without redeeming or discharging the other liens also, which are subsequent to his own title, Thus, if a third mortgagee, without notice of a second mortgagee, should purchase in the first mortgage, by which he would acquire the legal title, the second mortgagee would not be permitted to redeem the first mortgagee without redeeming the first mortgage also; for in such a case Equity tacks both mortgages together in his favor.