of the price, and submitting to apply the money as the Court should direct.' When a registered ship, or share therein, was mortgaged, Mortgages. under the previous Acts, the instrument of mortgage was in the form of an absolute bill of sale,' indorsed with a conditional defeasance, and took effect inter partes from the time it was registered, but depended, for priority over other incumbrances, upon the order in which it appeared, if at all, on the certificate of registry.* Under the existing statute, a special form of instrument is appropriated to this purpose, the operative word in it being "mortgage." By this, as by the former Acts since that of Geo. 4, it is provided, that the mortgagee shall not, by reason of that character only, be deemed owner, or the mortgagor be deemed to have ceased to be owner, except in so far as may be necessary for making the property mortgaged available as a security for the mortgage debt. This instrument, when duly executed by the registered owner, passes the property to the mortgagee, in the meantime as against the mortgagor, and when registered, as against third parties. The registered mortgagee is therefore protected against the assignees in bankruptcy, or the execution creditor of the mortgagor;' he may entitle himself to the accruing freight by taking possession of the ship before the termination of the voyage; " but until he 10 48 & 9 Vict. c. 89, § 39; Campbell v. Thompson, 2 Hare, 140. 5 17 & 18 Vict. c. 104, §66; Form I; & Form 12, issued by the Commissioners. See Appendix post to the statute. 66 Geo. 4, c. 110, § 45; 8 & 9 7 17 & 18 Vict. c. 104, § 43, 69, 72. 9 Kitchen v. Irvine, 28 L. J. (Q.B.) 46. Interest and Form of. Registration of. Priority, Notice, Mortgagees. does so, he has no right thereto;' and when he has done so, he is not liable for debts incurred before that time for the purposes of the ship.2 The form of the instrument, given in the Act, embodies, for the purpose of identification, a copy of the surveyor's certificate, is executed under seal, and, although the Act is silent about it, in the presence of one or more attesting witnesses, but no stamp is requisite.3 4 Registration thereof appears not to be compulsory, or to be a condition of its validity or operative effect inter partes and their representatives, as was the case under the previous statute,' and is still the case under the English and Irish registry statutes in respect of land." In respect of priority among mortgages, as affected by the Tacking, among doctrine of notice and the consequent right of tacking, many of the refinements of equity have been disposed of by the provisions of the Merchant Shipping Act relative to shipproperty. Mortgages of such property are to be entered on the register, or indorsed on the certificate of mortgage, in the order of their production for that purpose, the registrar indorsing the mortgage itself with the date and hour of registration; and such hour and date determine their priority, one to another, whatever may be the date of the instrument or of its execution, and notwithstanding any express or implied or constructive notice.' There is a remarkable similarity and also contrast, presented in these provisions to those of the Irish Registry Act relating to lands, that may illustrate the intention of the legislature in the Merchant Shipping Act. The 6 Anne, c. 2, § 4, provides 1 Gardner v. Cazenove, 1 H. & N. 423; see Willis v. Palmer, 29 L.J. (C. P.) 194. 2 Jackson v. Vernon, 1 H. Bl. 114. See the very peculiar circumstances of Cato v. Irving, 5 De G. & S. 210, where a court of equity giving the mortgagee priority over a purchaser, ordered him to pay for the outfit of the voyage which had been advanced by the other. 3 17 & 18 Vict. c. 104, § 66, the language is obligatory as to the form; compare § 55 and 18 & 19 Vict. c. 91, § 11. As to the witness, ante, p. 32. As to stamp, 17 & 18 Vict. c. 104, § 9. 4 Ibid. § 66, 67, compared with § 55, 57. For obvious reasons a mortgage made in virtue of a certificate of mortgage, is required to be registered, § 80, no. 2, and 5. 8 & 9 Vict. c. 89, § 37. 6 Underwood v. Ld. Courtown, 2 Sch. & Lef. 64; Biddulph v. St. John, 2 id. 521; Coote on Mortgages, 380. 7 17 & 18 Vict. c. 104, § 67, 69, 80, no. 5. that every deed or conveyance duly registered according to that statute shall be deemed good and effectual, both in law and equity, according to the priority of time of registering such deed in relation to every other deed concerning the same lands, &c.' Lord Redesdale having occasion to consider whether the fact of a deed appearing on the register amounted to notice, said: "It is true, the registry is considered as notice to a certain extent; no person thinks of purchasing an estate without searching the registry; and if he searches he has notice; but I think it cannot be notice to all intents, on account of the mischiefs that would arise from such a decision. For if it is to be taken as constructive notice, it must be taken as notice of everything contained in the memorial; if a memorial contains a recital of another instrument, it is notice of that instrument; if of a fact, it is notice of that fact." Again, when the question before him was, whether a person, who had obtained the assignment of a prior registered mortgage, might not tack to it subsequent mortgages, so as to give them priority over mesne registered mortgages, he says: "The intention (of the 6 Anne, c. 2, § 4) was to make priority of registry the criterion of title to all intents and purposes whatsoever. But this does not exclude anything which affects the conscience of the party himself who claims under the registered deed; it never was the intention of the legislature to give a priority of right to commit a fraud; but its meaning was, that parties dealing fairly, priority should be given to him who had the registered instrument, and that in equity as well as at law; and that must be considered as taking away the right of tacking, because it gives priority against the subsequently registered deed, and declares that as against lands the latter shall not be postponed." The statutes, then, with regard to lands, provide for a registration of deeds: the statute, with regard to Merchant 1 There no such provision in the English Registry Acts relating to lands. Bushell v. Bushell, 1 Sch. & Lef. 90, 103. * Latouche v. Lord Dunsany, 1 Sch. & Lef. 137, 157, 159. He afterwards adda: "I think, therefore, the effect of this Act is to prevent that sort of tack ing which may take place in England Compared with Irish Land Transfer and transmission of Mortgages. Advantages of Shipping, requires a registration of titles. For the purpose of the latter, public policy requires that the register shall be potice to all of everything that appears on the face of it, relating to the property in the ship.' But by the construction put upon the former in the English' and the Irish' Courts, the fact of a deed being on the register is not of itself notice. Under the Merchant Shipping Act, therefore, the possibility of postponing a registered mortgage by any right of tacking is excluded by the function of the register, as being the sole evidence of title, and operating as express notice to all. On the other hand, it is a doctrine of equity, that a mortgagee, whose deed has been registered under the statute relating to lands, may, nevertheless, be postponed for an unregistered mortgage in consequence of notice, no matter how acquired, or whether it were express, implied, or constructive. Lord Redesdale, after stating that the intention of the Irish statute was to make priority of registry the criterion of title to all intents and purposes whatsoever, adds: "but this does not exclude anything which affects the conscience of the party himself who claims under the registered deed." But the Merchant Shipping Act provides, that the mortgagees shall, notwithstanding any express, implied, or constructive notice, be entitled in priority one over the other according to the date of each instrument being recorded in the register-book, and irrespective of the dates of the instruments, or of their execution. So stands the question. Provision is further made for the registration of the transfer of mortgages, and of their transmission in consequence of death, bankruptcy, or insolvency, or the marriage of a female mortgagee.' Every registered mortgagee has by statute a power of sale, 1 17 & 18 Vict. c. 104, § 43, 55, 57, 66, 69, 72, 80. 2 Bedford v. Backhouse, 2 Eq. Ca. Abr. 615. pl. 12; Wrighton v. Hudson, 2 id. 609; Williams v. Sorrell, 4 Ves. 389; Wiseman v. Westland, 1 Y. & J. 117; Coote on Mortg. 378, 380. Bushell v. Bushell, 1 Sch. & Lef. 90. 4 Ld. Forbes v. Deniston, 1 Ves. 67; Le Neve v. Le Neve, 3 Atk. 652; Underwood v. Ld. Courtown, 2 Sch. & Lef. 64; Biddulph v. St. John, 2 id. 521. 5 Latouche v. Ld. Dunsany, 1 Sch. & Lef. 137, 157, supra. 6 17 & 18 Vict. c. 104, § 69. See Parr v. Applebee, 7 De G. M. & G. 585, under the former statute. 7 17 & 18 Vict. c. 104, § 73, 74, 75. gagee. incident to his security,' notwithstanding the absence of express Registered Mortprovision to that effect in the instrument; and if it be exercised and produce a surplus, after discharging the mortgage debt, he is a trustee thereof for subsequent incumbrancers and for the mortgagor, who may proceed in equity against him for an account. But no subsequent mortgagee may exercise this power without the concurrence of every prior mortgagee, except it be under an order of the Court." Upon the discharge of a mortgage being entered on the register, the effect on all parties concerned is as though such mortgage never had existed; the mortgagor's title is less burdened, and a subsequent mortgagee has the advantage of an enhanced security and a claim less remote. In a word, mortgagees are presumed to have notice of all that appears on the register, with regard to the same property, and are bound by it; and, if they register, they are bound by nothing else. Of this, the certificate of mortgage is a remarkable illustration. The certificate of mortgage, which is issued by the registrar Certificate of to an owner who desires to mortgage his property in the ship Mortgage. at a distance, is a novel expedient for placing the register with all its binding contents authentically before the eyes of an intending mortgagee who is too distant to communicate readily with the port of registry; he is thereby enabled to act upon knowledge which is patent to all; and with one exception' he is protected against everything besides. He perceives exactly the rank which his mortgage, if effected, will take; he is secure that no title created after the date of the certificate on the register can obtain priority over his; and yet the law was otherwise under the previous statute." 8 |