CASE Summary Frazer v Walker PDF

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Indefeasibility notes: Frazer v Walker summary...

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Frazer v Walker [1967] 1 All ER 649 Indefeasibility Title of the registered proprietor is conclusive - ‘Indefeasibility makes the interest one that is unable to be defeated by claims of prior defectiveness in the title’ (Gray, 338) Immediate v deferred indefeasibility: - Immediate indefeasibility = RP’s title is indefeasible upon registration, despite any defects that may exist in the title of the transferor (see Gray, 340) - Deferred indefeasibility = ‘if the instrument of the transferor is a nullity, the transferee is unable to defeat a claim by the true owner; indefeasibility is deferred to the next person to be registered as owner of the land’ (Gray, 340) Which position was adopted in Frazer v Walker? Court discussed previous caselaw (Assets Co v Mere Roihi ) , the issue being what was the ratio of the case: ‘the main relevant difference being whether the decision established the indefeasibility of title of a registered proprietor who acquired his interest under a void instrument [immediate indefeasibility], or whether it is only a bona fide purchaser from such a proprietor whose title is indefeasible [deferred indefeasibility].’ (at 654) - In Boyd v Wellington  the NZ CA held the Assets Co case stood for immediate indefeasibility In Frazer v Walker the court held that immediate indefeasibility applied Note that although this was a case in relation to the NZ legislation, immediately indefeasibility is also the position in Australia

Indefeasibility in Frazer v Walker: - Mr F argued mortgage to the Radomskis was a nullity, his interest had not been affected by the mortgage or sale, and he sought the Fs be restored as RPs - Mr F argued: the forged mortgage could not be validly registered, including because the RP (Mr F) had not signed it, as required by the Act, therefore ‘the mortgagee never became entitled to the benefit of registration’ (at 651) - Argument rejected by court as it ‘would be destructive of the whole system of registration’ (at 651) - The court noted that while non-compliance with registration requirements may later possibly lead to cancellation or correction, a registered interest gains the benefits of registration (indefeasibility of title) – registration vests title (at 651) - Indefeasibility of title – ‘The expression, not used in the Act itself, is a convenient description of the immunity from attack by adverse claim to the land or interest in respect of which he is registered, which a registered proprietor enjoys. The conception is central in the system of registration.’ (at 652) → A registered proprietor holds their interest free of unregistered interests, subject to exceptions, such as fraud by the RP or their agent.

CASE SUMMARY: Area of law concerned:

Indefeasibility of title

Judge

Privy Council

Counsel Summary of facts:

The Frazers owned a farm. The farm was subject to a mortgage worth £1732, mortgagees being the Radonskis. In 1961, Mrs Frazer, professing to act on behalf of her and her husband, arranged to borrow £3000 from the second respondents, to be secured by a mortgage over the property. The mortgagee discharged the first mortgage. No payment or principal or interest was made, and the second respondents exercised their power of sale. In 1962, the property was sold to the first respondent for £5000. The second respondents as mortgagees executed a memorandum of transfer to the first respondent which was registered in November 1962. The first respondent acted in good faith without any knowledge of the irregularity. In 1964, the first respondent commenced proceedings against the appellant for possession of property, relying on his title as the registered proprietor. The appellant argued that what purported to be his signature on the mortgage was a forgery and that the mortgage had occurred without his knowledge. He claimed a declaration that interest in the land was not affected by the purported mortgage or by the sale to the first respondent, a declaration that the mortgage was a nullity and an order directing the district land registrar to cancel the entries or memorials in the register whereby the second respondents were registered as mortgagees and the first respondent was registered as proprietor, and to restore the name of himself and his wife as joint owners

Procedural History:

Trial: judgment in favour of the respondents- the second respondts had obtained by registration an indefeasible title (immediate indefeasibility as per Boyd), and that in any event the subsequent transfer gave the first respondent an indefeasible title (deferred indefeasibility anyway). 579 brown Court of Appeal: appeal dismissed on the ground that the first respondent, as a bona fide purchaser, had obtained an indefeasible title. No decision made as to position of second defendants579 green

Defendants arguments

The register is everything, and, except in cases of actual fraud on the part of the person dealing with the registered proprietor, such person, upon registration of the title under which he takes from the registered proprietor, has an indefeasible title against all the world.

Judges Reasoning

The appellant invoked the following sections in arguing that the forged mortgage could not be received for registration or validly registered. Land Transfer Act s42: prohibition against registration of any instrumentexcept in the manner provided in the Act and unless the instrument is in accordance with the provisions of the Act. S157 requires every instrument, including such as charge any estate, to be signed by the registered proprietor and attested. Section 164 prohibits the registrar from receiving any instrument such asa charge unless there is indorsed thereon a certificate that it is correct forthe purposes of the Act signed by the applicant or party claiming under the instrument, a licenced land-broker or a solicitor employed by the applicant or party. The appellant’s argument: Their Lordships cannot accept this argument, which would be destructive of the whole system of registration. Even if non-compliance with the Act’s requirements as to registration may involve the possibilityof cancellation or correction of the entry, registration once effected must attract the consequences which the Act attaches to registration whether that was regular or otherwise. Sections 62-63 provide protection to the registered proprietor… it may be said that while section 62 secures that a registered proprietor, and consequently anyone who deals with him, shall hold his estate or interestabsolutely free from encumbrances, with three specified exceptions (?), section 63 protects him against any action for possession or recovery of land, with fie specified exceptions (?). s63(2) is particularly strong provision in his favour: it provides that the register is, in every court of law or equity, to be an absolute bar to any such action against the registered proprietor, any rule of law or equity to the contrary notwithstanding.Each of these sections excepts the case of fraud. Ss62-63 protects the registered proprietor. The expression ‘indefeasibility of title,’ not used in the Act is a convenient description of the immunity from attack by adverse claim to the land or interest in respect of which he is registered, which a registered proprietor enjoys. This conception is central in the system of registration. Definition of indefeasibility of title It does not involve that the registered proprietor is protected against any claim whatsoever; there are provision by which the entry on which he relies may be cancelled or corrected, or he may be exposed to claims in

personam.580 orange Section 75: the certificate of title, unless the register shows otherwise, is to be conclusive evidence that the person named in it is seised of or as taking estate or interest in the land therein described as seised or possessed of that land for the estate or interest therein specified and that the property comprised in the certificate has been duly brought under theAct. This section creates another aspect of ‘indefeasibility,’ nonetheless effective, though,as later provisions show, there are means by which the certificate may be cancelled or its owner compelled to hold it upon trust or to deliver it up through an action In personam.what 581 orangeSection 85 gives the court power to direct the registrar to cancel or correct certificates of title or entries in the register. But the power is carefully circumscribed. It arises upon the recovery of any land, estate orinterest by any proceeding in any court from the registered proprietor butonly in any case in which such a proceeding is not expressly barred. Section 85 is limited. Reflects Assets v Mere Roihi581 green (i)Sections 80 and 81 deal with the powers of the registrar. Section 81 applies in cases where it appears to the satisfaction of the registrar that a CoT has been issued in error or contains a misdescription of land or boundaries or that in any grant, certificate, instrument, etc has been fraudulently or wrongfully obtained or retained. Doesn’t apply in this case though581 green (ii)S183Read up on this.Sorry future DanUnder s172, ccompensation may be claimed by any person deprived of land or any estate or interest in land, by the registration of any other person as proprietor that is an error omission or misdescription.582 brow A mortgage creates a charge on the land. It is therefore apparent that the appellant’s counterclaim against the second respondents, in so as as it sought a declaration that the appellant’s interest in land was not affected by the purported mortgage and a declaration that the mortgage was a nullity, was an action for recovery of land within the terms of section 63. In so far as it sought cancellation by the court of the entry of the mortgage on the register, it could only be based on section 85.The proceeding dos not fall within either the exception of fraud or withinany of the other exceptions allowed by section 63. The power of cancellation by the court is also excluded by the express terms of section85, because the proceeding is itself barred…. The conclusion must follow that the appellant’s claim against the secondrespondents was correctly dismissed by Richmond .Conclusion, appeal should be dismissed as per Richmond J at trial.583 orangeObservation 1: under the LTA 1952, registration confers upon a reisteredproprietor a title to the interest in respect of which he is registered which is immune from adverse claims, other than those specifically excepted. In doing so, they wish to make clear that this principle in no way denies the right of a plaintiff to bring against a registered proprietor a claim in

personam, funded in law or in quietly, for such relief as a court acting in personam may grant. Title is title. Appears to support immediate indefeasibility, subject to certain exceptions585The powers of the registrar under s81 are significant and extensive (Assets). They are not coincident with the cases excepted in ss62-63. As well in the case of fraud, where any grant, certificate, instrument, entry or indorsement has been wrongfully obtained/retained, the registrar has power of cancellation and correction. From the argument before their Lordships it appears that there is room for some difference of opinion as to what may be interpreted as ‘wrongfully.’ It is clear that s81 must be read with and subject to s183 with the consequence that the exercise of the registrar’s owers must be limited to the period before a bona fide purchaser, or mortgagee, acquires a title under the latter section. Brown 585 P586 discussion...