1890.

Judgment.

My brother Bain appears to have treated that as made under the 110th section of "The Real Property Act of 1885," or the corresponding 120th section of the Act of KILLAM, J. 1889. I think that he could properly do so. It is true that he formed and expressed an opinion upon the questions raised, and stated his reasons therefor, but he did nothing more except to send to the Registrar-General a formal certificate of that opinion. The latter part of the section provides that," If upon such reference the said court or judge, having regard to the parties appearing before it or him, thinks proper to decide the question, it or he shall have power to do so or to direct any proceedings to be instituted for that purpose, or at the discretion of the said court or judge, and without deciding such question, to direct such particular form of entry to be made on the register or certificate of title as under the circumstances appears to be just." It appears to me that the learned judge did not really decide the question as between the parties. He pronounced no order or judgment which assumed to bind them. simply gave an opinion for the assistance and guidance of the Registrar-General, who had the power to disregard it, leaving the parties to raise the question again just as they are now doing.

He

petition cannot be The 118th section

Then it is also contended that the summarily disposed of upon affidavit. of the Act of 1889, after authorizing the filing of a petition provides that, "the court or judge shall have the jurisdiction to hear the said petition, and shall make such order in the premises as the circumstances of the case may require, and as the court or judge may direct." No provision is made respecting the nature of the evidence to be used in support of or against the petition.

The very authority cited for the respondent, Gilbert v. Endean, 9 Ch. D. 259, appears to me to show that, whatever effect might otherwise be given to the objection, it is too late to raise it now. Instead of insisting upon it in Chambers, the respondent filed affidavits in reply to those used in support of the petition, and others were filed by the peti

tioner in rebuttal. Thus the evidence was adduced by both parties upon affidavits, and the case as thus made out was referred to the court for determination. I cannot agree with the contention that the section is unworkable. There is authority granted to hear and determine a case raised by such a petition, and we must assume the authority to receive evidence of some kind upon it.

The Real Property Act of 1885, s. 61, as amended by the Act 50 Vic. c. 11, s. 20, M. 1887, made the lands described in a certificate of title subject, by implication and without special mention, to executions against or affecting the interests of the registered owner, which might be registered in the Land Titles Office and there maintained in force against such registered owner whilst he continued the registered owner. And the 102nd section of the Act of 1885, as amended by the 33rd section of that of 1887, 50 Vic. c. 11, required that, in order to bind registered lands a copy of the writ of execution certified by the sheriff should be delivered to the Registrar-General for registration, and provided that, from and after the filing of such copy, the same should operate as a caveat against the transfer by the execution debtor of such land or of any interest which he might have therein, and that no transfer should be made by him except subject to the right of the execution creditor under the writ.

By the 44th section of the Act of 1885, sub-sec. 8, the Registrar-General was to endorse upon the certificate of title a memorial of every mortgage, encumbrance or other dealing affecting the land. By the 3rd section, subsec. 7, the expression " encumbrance" included any charge on land created for any purpose. By the 33rd section, registered instruments were to be entitled to priority according to the time of registration. By the 64th section, no instrument was to be effectual until registered, to pass an interest in the land. And by the 70th section, an instrument purporting to pass an estate or interest was, until registered, to confer a right or claim to the registration of such estate or interest, but no such registration was to be

1890.

Judgment.

KILLAM, J.

made if it would interfere with the right of any person Judgment, claiming under an instrument previously registered.

1890.

KILLAM, J.

The contention of the petitioner is that, by the execution of the transfer and payment of the purchase money, Herbert became entitled to the land in equity, so that no execution against Gibson could attach upon it.

The position of trusts and equitable interests under the corresponding statute of the Colony of Victoria, is clearly stated in Mr. A'Beckett's work upon “The Transfer of Land Statute" of that colony. At p. 58 he says, "There is no doubt that, as against the proprietor, trusts and contracts may be enforced as formerly, and although a trustee may be absolute proprietor under the Act, a court of equity will reduce or deprive him of his interest or compel him to apply its proceeds as justice may require." And at p. 56, "There is this marked distinction between the statute and the general law, that the statute will not by registration recognize a trust or permit the separation of legal and beneficial ownership for the purposes of dealing. The trust may be created as between the parties to the instrument in any manner they please, as under the general law, and a copy of the trust deed may be deposited with the Registrar for safe custody and reference. The land may be reached through the trustee, although the trust will not be attached to the land in such a manner as to be enforced against a person acquiring it without fraud on his part." And at p. 57," Most of the provisions of the Act as to express trusts will equally apply to the implied or constructive trusts raised by courts of equity upon contracts, or the creation of relations in which a ground for intervening to secure the performance of a moral obligation is recognized.”

He shows further that, the method by which a vendee of land is to protect himself from a transfer of the vendor's estate to any other than himself, is by entering a caveat against the registration of any transfer or other dealing with it.

After a careful examination of our Real Property Acts and a comparison of the corresponding sections of the

Victoria Act, I am of opinion that these remarks accurately 1890. describe the position with reference to lands registered Judgment. under those Acts in Manitoba. See 48 Vic. c. 28, ss. 64, KILLAM, J.

70, 89, 97, 98, 99, 101, 107, 133, 143, M., 1885; 49 Vic. c. 28, s. 14, M., 1886; 50 Vic. c. 11, s. 37, s-ss. 6, 7, 8, M., 1887; 52 Vic. c. 16, ss. 64, 66, 74, 81, 85, 86, 113, 114, 115, 117, 129, 130, (s-ss. 3, 5,) 145, M., 1889; 53 Vic. c. 5, ss. 28, 30, 115, 117, M., 1890; 29 Vic. c. 31, ss. 37, 38, 42, 47, 48, 49, 50, 52, 59, 107, 111, 112, 116, 151, Victoria, 1866.

Under the provisions to which I have referred, and particularly the sections of the Act of 1885, of which I have given the substance, it appears to me that the RegistrarGeneral could not inquire into the existence of a beneficial interest apart from the registered title in order to ascertain whether the writ of execution bound the lands. The remedy, if any, of Herbert was to be found only in a court of equity.

Instead of seeking that, he took a certificate of title. showing his estate to be one which was subject to a charge, and the District-Registrar must take this as conclusive in registering a transfer from its holder, unless the charge was subsequently by some means extinguished.

Now, although both The Real Property Act of 1885, with its amendments, and The Administration of Justice Act, 1885, were repealed in 1889, provision was made for protecting rights previously acquired. See 52 Vic. c. 16, S. 152, c. 36, ss. 5, 6, 7, 13, 14, M., 1889. Then, notwithstanding these repealing sections and that The Real Property Act of 1889 contained no provision for registering writs of execution, the land would remain subject to the charge shown upon the certificate of title.

The petition makes no case of want of renewal, or of satisfaction or other extinguishment, and it is unnecessary to consider whether registration of a renewal writ was requisite, or to inquire whether the writ was renewed or re-registered.

In my opinion, the petition should be dismissed with

costs.

1890.

Judgment

BAIN, J.

BAIN, J.-I do not think that the objections that were taken to the Court hearing the petition in this matter can be allowed, but, adhering as I do, to the opinion I gave in Re Herbert & Gibson, 6 M. R. 191, I think the petition should be dismissed. The remarks I made in that case had reference specially to the opinion I was giving the RegistrarGeneral for his own guidance in dealing with the title of the land and the execution in question. He, I thought, and still think, could not inquire into or recognize any interest in the land in anyone but the registered owner. did not, however, intend to convey the impression which, perhaps, might be conveyed, if my remarks are taken generally, that I thought there could not be such a thing as an equitable estate or interest in lands that had been registered under the Act. It is quite clear, I think, that equitable estates and interests can be created and will arise by implication in these lands just as in the case of lands that have not been brought under the Act, and that courts of equity acting upon the registered owner in personam will still recognize and give effect to them. On this subject I agree with what has just been said by my brother Killam. The petition should be dismissed with costs.

TAYLOR, C. J., concurred.

Petition dismissed, with costs.