Gibbs v Messer
| Jurisdiction | UK Non-devolved |
| Judgment Date | 1891 |
| Date | 1891 |
| Year | 1891 |
| Court | Privy Council |
Law of Victoria - Transfer of Land Statute - Forged Transfer - Fictitious Transferee - Forged Mortgage - Effect of Registration.
The victorian “Transfer of Land Statute” protects those who derive a registered title bonâ fide and for value from a registered owner. Accordingly they need not investigate the title of such owner, for they are not affected by its infirmities. But they must ascertain at their own peril his existence and identity, the authority of any agent to act for him, and the validity of the deed under which they claim.
The name of a registered owner having been removed in favour of a fictitious and non-existing transferee as the result of a forged transfer, a mortgage purporting to have been executed by such transferee was subsequently put upon the register by bonâ fide mortgagees.
In a suit by the true owner against the registrar, the mortgagees, and the perpetrator of the fraud:—
Held, (a) that the plaintiff's name must be restored to the register. (b) That the mortgage was invalid, and did not in favour of the mortgagee constitute an incumbrance on the plaintiff's title; though under the Act it would have that effect in favour of a bonâ fide registered assignee thereof.
APPEAL from an order of the Supreme Court (10th of November, 1887), affirming with a variation an order of Webb, J. (18th of August, 1887), which was to the effect that the Registrar of Titles should pay to the respondent, Mary stuart Messer, out of the assurance fund established by the 30th and other sections of the Transfer of Land statute, her costs of her action and all moneys from time to time paid by her for interest in respect of an alleged mortgage for £3000, under which the respondents McIntyre claimed to be mortgagees, and also all moneys necessarily paid by her for principal, interest, and costs to redeem the said mortgage.
The facts of the case are stated in the judgment of their Lordships.
The question in the appeal stated from the appellant's point of view was whether, according to the true construction of the Transfer of Land Statute (Act No. 301), a registered proprietor of land can be said to have been deprived of land within the meaning of sect. 144, and consequently to have become entitled to compensation out of the assurance fund by reason of a transfer from him to a non-existent person under a fictitious name having been forged, and by reason of such fictitious name having been substituted for his on the register as the proprietor, and by reason of a forged mortgage from such fictitious person to a registered mortgagee who had bonâ fide advanced money on the security of such land.
The case was twice argued, on the first occasion before a committee composed as noted below.
Sir H. Davey, Q.C., Finlay, Q.C., and Gurner, for the appellant.
Rigby, Q.C., and Sargant, for Mrs. Messer.
The Attorney-General (Sir R. Webster), and Rashleigh, for the McIntyres.
For the appellant it was contended that there was nothing in the Transfer of Land statute which could be relied on as giving validity to any document which purported to be a transfer either to or from a non-existing person, although it might be in a name that had been placed upon the register. Nor was there anything in the Act which could give validity to a transfer purporting to be by a transferor who had never signed, or to a transferee who had never signed. Even if such a non-existing person could be held to have given under the operation of this Act a title to a bonâ fide transferee without notice, still a document which only purported to create an incumbrance against himself, would not bind the land. The Act protects those who acquire the legal estate, not those who under a statutory mortgage acquire a mere interest in land.
If the Act is examined in detail, its provisions, as well as its general scheme and object, would be defeated if the transactions in this case were upheld and the assurance fund held answerable for them. It would not give certainty to title according to the preamble if the registered proprietor were liable to be deprived of his estate by a forged transfer purporting to be executed by him. The “dealings with land,” which are the subject of the Act, must mean actual dealings by the actual registered proprietor, not dealings by forgers who are strangers to it. Further, it cannot be said that a fictitious person who has under sect. 43 obtained a certificate of title under a forged transfer, is a proprietor of land under the operation of the Act within the meaning of that section. Sect. 47 does not help the other side, for it relates to a certificate in favour of a real proprietor and real applicant, not in favour of a fictitious name. No certificate was issued in this case to Cameron or to the mortgagees in such manner as is contemplated by the provisions of the Act. The transfers effected were not transfers within the meaning of the Act. Fraud in sects. 49 and 50 does not include the fraud of the transferor. Sect. 144 only gives a right of action against the registrar if there be some existing person in whose name registration has been erroneously effected. The whole proceedings upon which the names of the McIntyres were entered on the register were a nullity, and passed no title to the respondents. It was not the intention of the Act to guarantee that a particular name on the register represented a real person. Persons dealing with land on the faith of such name must ascertain for themselves the nature and effect of the particular transaction they make. If a binding transaction is made with a real registered owner, the Act guarantees that owner's title, but nothing more. His existence, the authority to act for him, and...
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