The original Registry Act of 1795 did not provide either that priority of registration should prevail or that the registration of an instrument should constitute notice to anyone. It was therefore held that where a mortgagee took a subsequent conveyance of the land as security for a further advance (giving a bond to reconvey on payment of the whole debt), he was entitled, by virtue of the doctrine of tacking, to priority as to the whole debt as against a mesne registered encumbrance of which he had no notice (x). The law was changed in 1850 by the enactment of a provision specifically directed against the doctrine of tacking and of a provision that the registration of an instrument should in equity constitute notice thereof to all persons claiming any interest in the land subsequent to such registration (y).

(u) Weir v. Niagara Grape Co., 1886, 11 O.R. 700.

(v) Delbridge v. Brantford (Township of), 1917, 40 O.L.R. 443, 38 D.L.R. 677, applying and following Ross v. Hunter, 1882, 7 Can. S.C.R. 289.

(w) See Israel v. Leith, 1890, 20 O.R. 361, in Sec. 73, infra, where the question of rights or interests not expressed in a written instrument but arising by implication is discussed.

The Registry Act, R.S.O. 1914, c. 24, s. 75, provides as follows :

75. The registration of an instrument under this or any former Act shall constitute notice of the instrument to all persons claiming any interest in the land, subsequent to such registration, notwithstanding any defect in the proof for registration, but nevertheless it shall be the duty of a registrar not to register any instrument, except on such proof as is acquired by this Act.

Under this section the effect of registration is that even a mere equitable interest expressed in a registered instrument, for instance, under a registered assignment of the benefit of an agreement for the purchase of land, will be good as against a subsequent mortgagee or grantee of the legal estate (z).

A subsequent purchaser takes subject to an instrument which is in fact upon the registry, notwithstanding that the proof of execution is defective (a) unless perhaps in the case of a registration which is a nullity by reason, for instance, of the absence of any affidavit of execution (b).

Registration of a mortgage on lands before the issue of the patent from the crown does not constitute notice to a person who afterwards obtains the patent without actual notice of the mortgage (c).

(x) Street v. Commercial Bank of the Midland District, 1844," 1 Gr. 169. The judgment of Robinson, C.J. contains an elaborate discussion of the doctrine of tacking.

(y) 13 & 14 V. c. 63, ss. 4, 17; C.S.U.C. 1859, c. 89, ss. 56, 47. A provision as to tacking is now contained in s. 73 (infra, Sec. 75).

(z) Cope v. Crichton, 1899, 30 O.R. 603.

(a) Rooker v. Hoofstetter, 1896, 26 Can. S.C.R. 41, affirming 22 O.A.R. 175; Armstrong v. Lye, 1897, 24 O.A.R. 543, 27 O.R. 511.

(b) Rooker v. Hoofstetter, 26 Can. S.C.R. at p. 46; Murchie v. Theriault, 1898, 1 N.B. Eq. 588.

An equitable lien, charge or interest affecting land which is expressed in a written instrument falls within s. 71 (d). If the instrument is not registered it is void as against a subsequent purchaser or mortgagee for value claiming under a registered instrument without notice of the equitable claim. In the case of an equitable claim arising by implication and not expressed in a written instrument which can be registered, special provision is made by s. 73 of the statute (e). There is, however, no similar provision as to legal interests or rights in land arising by implication and not expressed in a written instrument which can be registered, and there would appear to be nothing in the statute to deprive such legal interests or rights of any priority which they may possess apart from the statute. It will be observed that s. 71 in certain circumstances makes void unregistered instruments, not unregistered rights or interests.

Thus, the owner of two adjoining lots of land conveyed one of them, and thereby impliedly granted all those continuous and apparent easements, including rights of drainage and aqueduct, over the other lot, which were necessary for the reasonable use of the property granted and which were at the time of the grant used by the owner of the entirety for the benefit of the part granted. It was held that the implied grant of easements was not within the Registry Act and was good against a subsequent purchaser, without notice, of the servient tenement (f). In the alternative it was held that if the grant was to be considered an express grant by virtue of the Conveyancing and Law of Property Aet (g), the registration of the conveyance of the dominant tenement was notice to a subsequent purchaser of the servient tenement.

(c) Re Reed v. Wilson, 1893, 23 O.R. 552.

(d) See Sec. 72, supra.

(e) See Sec. 75, infra.

(f) Israel v. Leith, 1890, 20 O.R. 361.

This decision, so far as it relates to an express grant, seems at first sight hardly consistent with what appears to be the general intention of the statute, namely, that a subsequent purchaser shall take subject only to prior claims of which he has actual notice or of which he would receive notice by a search in the registry office, and to that extent the decision is unsatisfactory. A search in the registry office would not, in the case in question, necessarily bring to the actual knowledge of the subsequent purchaser of the servient tenement the existence of the earlier conveyance of the dominant tenement. At most he might learn that his vendor was at one time the owner of both parcels and be put upon enquiry as to the disposition such owner had made of the other parcel. On the other hand, the above mentioned general intention of the statute is perhaps only a deduction from the ordinary operation of the statute, and the decision seems to be in accordance with a strict reading of ss. 71 and 75. The protection which s. 71 confers upon a subsequent purchaser or mortgagee under a registered instrument consists in making void an earlier unregistered instrument, not legal rights or interests arising under an earlier registered instrument, and the provision of s. 75 that registration of an instrument shall constitute notice to a person subsequently acquiring an interest in the land is wide enough to cover rights and interests arising under the registered instrument but not specifically mentioned on its face.

Prior to 1893 it had been held that entry of an instrument in the registry books at full length was necessary in order to constitute registration and that the receipt of the instrument by the registrar was not sufficient (b), though the mere omission of the registrar to index an instrument would not deprive it of priority (c). In that year, however, the statute was amended (d) by the addition of the provision which is now contained in R.S.O. 1914, c. 124, s. 80, as follows:

(f) See s. 15 of the statute, quoted in chapter 1, Introductory. Sec. 5.

80.-(1) An instrument capable of and properly proved for registration shall be deemed to be registered when and so soon as the same is delivered either personally or by post to and received at his office during office hours by the registrar, or some officer or clerk in his office on his behalf, and thereafter no alteration shall be made by any person in such instrument.