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TTnre?intered Bill of Sale, effect of:
In case of
Transmission by operation of Law.
sale for the same shares executed hy A. to B., although on the 27th of March, cannot then be placed on the register; for the prior registration being valid, the title and disposing power are no longer in A. but in C.1
By this illustration we are again introduced to a variety of aspects of the same question already glanced at; * namely, the effect of an unregistered bill of sale, duly executed and valid; the equitable doctrine of notice as bearing on such transactions; and the compatibility of an equitable title with the purposes of the register. The previous statute enacted, that no bill of sale should be valid and effectual to pass the property, or for any other purpose, until registered.* A similar enactment, in the negative form, is made as to one class of disqualified transferees under the present statute.4 But, as to qualified transferees, the object is gained by an affirmative provision, which leaves the disposing power in the person on the register, until he is displaced by registration of his own bill of sale to another. Whether this be or be not equivalent to the nullifying clause referred to in the previous Act, another question would still supervene, and no decision upon it is yet given—whether the existence of an equitable title, in derogation of that upon the register, is compatible with the purposes of the register itself.5
No doubt, if the registration itself can be impugned on the ground of fraud or invalidity, the claimant gets rid of the adve rse title without appeal to equitable rights alleged in his own favour.5
If the vendor becomes bankrupt between the execution and the registration of the bill of sale, the shares pass to the assignees, because they were at the time in the order and disposition of the bankrupt;s and registration of the bill of sale after that, although effected, would seem to be a nullity.7
The transmission of ship-property by operation of law, on the death," bankruptcy, or insolvency of the registered owner,
or on the marriage of a female registered owner, is not affected by the statute,1 except in so far as the registration of his acquired title is a condition precedent to his disposing power;' and if the person to whom such right is transmitted is disqualified to be the owner of a British ship, he may apply within a limited time to have such property sold, and transferred by a nominee of the Court appointed for that purpose.3
If, after the execution of a bill of sale, and before its regis- Executor to tration, a transmission of the same property take place, and of Transferee!'6 the transferee, by operation of law, get upon the register with a title in no way adverse to, or inconsistent with, the claim of the transferee by bill of sale, a court of equity would seem to have no more difficulty in decreeing the registered transferee to do all things necessary to perfect the title intended to be conveyed by his testator, than it has in compelling an executor to indorse a bill of exchange previously delivered by the testator without indorsement.4
As between the transferee of a bankrupt and his assignees, Transferee of the law relating to fraudulent preferences, and fraudulent ^ntrupt!
in the names of several joint-owners, that the property shall pass to the joint survivors, and not to the personal representatives of the person deceased,'except upon the d«ith of the last surviving joint-owner, and then his personal representatives will be the parties to appear on the register, and give title to the purchaser, Co. Litt. 181 a, 181 b, 182 a, 185 a. By express enactment l|5 37, no. 4) such joint-owners are disabled to dispose in severalty of any interest held jointly in the ship. This, however, is for the purposes of the register, and without prejudice to the rights of the beneficial owner, or his representatives (§ 37, no. 2). Under the 8 4 9 Vict. c. 89, § 35, partners as such were allowed to be registered jointly, and the property so registered was declared to be partnership property, and subject to the rules of law and equity respecting goods and chattels hrld in partnership; and as the jus ac
crescendi docs not hold among partners,
1 So it always has been, Ex parte
2 17 & 18 Vict. c. 104, §58,59,60,43.
* Watkins v. Maule, 2 Jac. & W.
dealings of the bankrupt with his other property, will operate also with regard to ship-property, even to the vacating of the register, should the title still he in the immediate transferee of the bankrupt.1 And if a bond fide transferee, through his own negligence, allow the vendor to appear still on the register as the owner, the consequences of leaving the property in the order and disposition of the bankrupt must follow.'
How Msalt We come now to consider those rights and obligations in
respect of ships, and shares therein, that may be created otherwise than by legal bill of sale and registry.
Trusts. Trusts of real and personal property have been found in
this country so convenient for the requirements of modern society, and the purposes of family settlements, that the legislature, after a vain attempt to extinguish them in their rise,5 succeeding only so far as to modify the form in which they are to be created,4 have not once proposed to control the matured system of equitable jurisprudence with, regard to them. But the opposition between these two descriptions of right, — of the cestuique trust, regarded in the light of the ordinary doctrines of equity,—and of the registered owner, as intended by the policy of the former shipping acts, has hitherto appeared to be so contrary, that the only way taken under the previous statutes to quiet conflicting claims was the entire suppression of one class of them.5
By the existing statute, no notice of any trust, express, implied, or constructive, is to be entered in the register-book, or be receivable by the registrar. So far the function of the register is thereby negatively defined.
Positively, that function, as between private parties, is thus stated:—" Subject to any rights and powers appearing by the register-book to be vested in any other party" (i.e., under mortgage or certificate of sale or mortgage), "the registered owner of any ship, or share therein, shall have power absolutely to dispose, in manner hereinafter mentioned, of such ship or share, and to give effectual receipts for any money paid or advanced by way of consideration."1
Subject to this positive view of that function, we must take into account the absence from the existing statute of those negative provisions in former statutes—that no transfer, contract or agreement to transfer (unless in the prescribed form), shall be valid or effectual for any purpose whatever in law or equity—and that no bill of sale or other instrument shall be valid and effectual to pass the property until registered'—in determining whether trusts can be effectually created in derogation of the title on the register. How far the purposes of the register have been modified from what they were, so as to affect the question otherwise than before, is an inquiry on which any conclusive opinion can only be received from the proper tribunals of the country; and any such opinion from whomsoever received, must always override the construction of particular provisions of the statute.
It is true, however, that the statute has occasioned a beneficial ownership, vested in other persons than those on the register;3 it recognises their title and preserves it ;* provides machinery for the protection of their rights;5 and does not ignore them in the imposition of burdens on the owners." It is in consonance with the same views, that further legislation has placed the powers of certain persons appearing as owners on the register, and the substitution of their successors, within the jurisdiction of the Lord Chancellor under the Trustee Act of 1850/ All this, however, is compatible with such a view of the purposes of the register as would require and justify the
1 17 4 18 Vict. c. 104, § 43. * Ibid. § 37, no. 2; § 38, no. 5; § 39,
1 8 t 9 Vict. c. 89, § 34, 37; 3 & 4 no. 5 ; § 100. WE 4, c. 35, § 31; 6 Geo. 4, c. s Ibid. § 65. 110, 5 31; 34 Geo. 3, c. 68, § 14; s Ibid. § 100. 26 Geo. 3, c. 60, § 17. » 18 & 19 Vict c. 91, § 10. Ante,
117 k 18 Vict. c. 104, § 37. p. 23, 24.
nullity of any title asserted in derogation of the title which appears there.
As "to the question, whether the Court (of Chancery) has jurisdiction to interfere with the legal title of the registered owner, says Vice-Chancellor Page Wood, I am not by any means convinced that the argument raised in consequence of the late statute, 18 & 19 Vict. c. 91, enacting that shares in ships shall be deemed within the Trustee Act of 1850, or the recognition, in certain cases, of trusts throughout the Act of 1854, is of great cogency; inasmuch as there are in all the recent acts trusts, for instance, in respect of property which devolves on the next of kin through the medium of administrators—trusts in respect of ships which are allowed to be registered in the names of joint stock companies, and in the names of trustees for those companies. It would be necessary to make provision for those equitable interests, and that perhaps would be sufficient to answer the particular clauses of the Acts of 1854 and 1855, to which I have been referred. There are other clauses too, in those acts, which will require deliberate consideration, whenever the question of jurisdiction
fairly arises The subject is one which must therefore
be considered as yet open, and one which will require a good deal of grave consideration on all the provisions of the statute."1
In the case which gave occasion to these observations, a transferee had got upon the register by means of the improper exercise of a power of sale, and one of the questions raised was, whether there was an equitable title, notwithstanding, still in the donor of the power; but it became unnecessary to determine it, as the bill of sale, by which the donee affected to convey, was invalid, and the registration thereof consequently a nullity."
Such a trust as gave the object of it no right to the ship, but, for instance, only to the proceeds of it when sold, might have been enforced after sale, notwithstanding the previous ShipRegistry Acts, the vendee acknowledging a debt to the extent
1 Per Wood, V. C. in Orr v. Dickin- Mail Steam Packet Co. 5 Jur. N. S. son, 1 Johns. 1. See The European 311.
and Australian Mail Co. v. The Royal 2 Orr v. Dickinson, supra.