REGISTERED CONVEYANCING AND THE LAND LAW—A REPLY
| DOI | http://doi.org/10.1111/j.1468-2230.1949.tb00141.x |
| Published date | 01 October 1949 |
| Author | A. D. Hargreaves |
| Date | 01 October 1949 |
REGISTERED CONVEYANCING AND
THE
LAND LAW-A REPLY
THERE
has
been
so
little discussion of the principles of registration
of title in England that
it
is
worth while pursuing further some
of the points which have emerged from my review
l
of Professor
Potter's
Principles
of
Land Law
under
the
Land Registration Act
and of his article
a
in reply to my criticisms.
I
shall therefore deal,
as briefly as possible, with the five major issues indicated
in
Professor Potter's article, ignoring many of the minor points which
might otherwise distract attention from what is really important.
First, as to the nature of the interest vested in the registered
proprietor. The view which
is,
perhaps, more generally accepted is
that this interest is
an
estate the nature and incidents of which are
governed by the ordinary rules of common law, equity, and statute,
as modified by the Land Registration Act. Professor Potter, as
I
understood his book, contended that the nature and incidents
of
this interest were governed exclusively by the Land Registration Act.
It
now appears, however, that
I
was mistaken in my interpretation
of
his
attitude. We are now told that the destruction
of
the
'
old
common law owner beneficially entitled
'
does not necessarily mean
that the registered proprietor has no common law estate, and that
although the learned author finds
it
'
difficult
to
see what
sort
of
a
ghost of
a
common law estate is left
.
. .
it
may be material for
purposes of enjoyment as distinct from disposition
'
4-a
surprisingly
material ghost.
If
the matter were to remain there,
it
would be sufficient, and
justifiable, to claim that Professor Potter now accepts the first
of the two views propounded
in
the last paragraph. But the
position is not yet
so
simple.
'
The real issue
',
he now writes,
'
is
whether
a
registered proprietor has
a
statutory estate and, if he
has, whether he also has
a
common law estate conferring rights of
disposition independently
of
the Act but affecting the legal estate.
These propositions are, of course, severable.' This passage, though
not free from ambiguity,' seems
to
indicate that Professor Potter
ib
now propounding
a
theory of dualism, whereby the proprietor
has at the same time two separate interests,
a
'
statutory estate
9
and
a
'
common law estate
'.
The phrase
'
statutory estate
'
is not
1
(1949) 19
M0d.L.R.
188.
a
Ibid.,
p.
206.
0
Ibid.,
p.
aOg.
4
Ibid.,
p.
aO7.
6
It is just possible that the two propositions, taken together, are intended to
represent
my
views, and that Profeseor Potter still maintains that the registered
pro rietor has
a
'
statutory eatate
'
only.
But this latter view
is
so
incompatible
wit[ his recent statements (referred
to
above)
that
I
cannot believe that
it
repreaenti his present attitude.
477
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