[COURT OF APPEAL]

MORELLE LD. v. WAKELING AND ANOTHER.

[Plaint No. K. 1224.]

Mortmain - Lease - Foreign company - Transfer of registered land - Company registered as proprietors of leasehold interest in land in United Kingdom - No licence in mortmain obtained from Crown - No compliance with Companies Acts requirements for holding land - Forfeiture to Crown from date of registration of transfer - Land registration - Practice - Leasehold possessory title - Validity of registration - Effect of non-compliance with statutory forms - Discretion of registrar - Magna Carta, 1225 (9 Hen. 3, c. 36) - Statute De Religiosis Viris, 1279 (7 Edw. 1) - Charitable Uses Act, 1735 (9 Geo. 2, c. 36) - Mortmain and Charitable Uses Act, 1888 (51 & 52 Vict. c. 42), ss. 1 (1) (2), 10 - Mortmain and Charitable Uses Act, 1891 (54 & 55 Vict. c. 73), s. 3 - Land Registration Act, 1925 (15 Geo. 5, c. 21), ss. 23 (1), 80, 144 (1) - Land Registration Rules, 1925 (S.R. & O., 1925, No. 1093/L.28), rr. 74, 121, 123, 322 - Form 35.

Judicial Precedent - Court of Appeal decision - Per incuriam - Mortmain - Inadequate argument - Interested party not represented. Statute - Construction - Consolidating Act - To be construed against background of previous law - Mortmain. Practice and Procedure - Parties - Joinder - Crown - Amicus curiae - R.S.C., Ord. 16, r. 11.

In Morelle Ld. v. Waterworth [1955] 1 Q.B. 1; [1954] 2 All E.R. 673 the Court of Appeal (Singleton, Denning and Morris L.JJ.) decided that a company registered in Eire, neither incorporated nor registered under the Companies Acts and having no place of business in this country, were not entitled to recover rent on premises the residue of a lease of which had been assigned to them, since, the company not having obtained a licence in mortmain, section 1 of the Mortmain and Charitable Uses Act, 1888, applied. The Crown was not before the court.

Rodnall Ld. v. Ludbrook, a similar case but in which the lease had been registered, was decided in the same sense at the same time on counsel's concession that it was indistinguishable.

The present case was likewise similar to Morelle Ld. v. Waterworth, save that the company was registered in H.M. Land Registry as the proprietor of a possessory title to the leasehold interest in the land in question. The registration was effected pursuant to a transfer by the previous registered proprietor of that interest. The transfer was not, however, made in the prescribed statutory form.^*

It was contended that the first Morelle case was decided per incuriam since the subject-matter was of a specialized and highly technical character which infrequently came before the courts; the arguments were brief, counsel for the company having only been instructed the previous afternoon; there was consequently an absence of sufficient emphasis on the feudal origin of mortmain and on the fact that the Act of 1888 was a consolidating statute; and the Crown was not represented:-

Held, (1) that the decision in Morelle Ld. v. Waterworth was not given per incuriam. The general rule was that a decision should be held to have been given per incuriam only where it was given in ignorance or forgetfulness of some inconsistent statutory provision or of some authority binding on the court, so that in such cases some part of the decision or some step in the reasoning on which it was based was on that account demonstrably wrong. That was not so in Morelle Ld. v. Waterworth., and while the general rule was not necessarily exhaustive, cases not within it, which could properly be held to have been decided per incuriam, must be of the rarest occurrence. A decision was not to be treated as having been given per incuriam simply because of a deficiency of parties, or because it might be made to appear that on an earlier occasion the court had not had the benefit of the best argument.

Young v. Bristol Aeroplane Co. Ld. [1944] K.B. 718; 60 T.L.R. 536; [1944] 2 All E.R. 293 applied.

Police Authority for Huddersfield v. Watson [1947] K.B. 842; 63 T.L.R. 415; [1947] 2 All E.R. 193; Garvin v. Police Authority for City of London [1944] K.B. 358; 60 T.L.R. 207; [1944] 1 All E.R. 378; Nicholas v. Penny [1950] 2 K.B. 466; 66 T.L.R. (Pt. 1) 1122; sub nom. Penny v. Nicholas [1950] 2 All E.R. 89; A. & J. Mucklow Ld. (in liquidation) v. Inland Revenue Commissioners [1954] Ch. 615; [1954] 2 All E.R. 508 considered.

(2) That Morelle Ld. v. Waterworth was not distinguishable on the ground that that case did not concern registered land. Nothing in section 23 of the Land Registration Act, 1925, ousted the saving of the Crown's right to forfeiture preserved by section 80, and by virtue of that provision the forfeiture took immediate and automatic effect on the registration of the transfer, just as it would have done on the execution and delivery of an assignment of unregistered leaseholds. Forfeiture was not suspended pending an order for rectification of the register or contingent on such an order being

* Form 35: see rule 121 (1) of the Land Registration Rules, 1925.

obtained. But it would have made no effective difference if the forfeiture had occurred at ally step of the transaction earlier than the actual completion of the sale by registration of the plaintiff company as proprietor.

Per curiam. If Morelle Ld. v. Waterworth [1955] 1 Q.B. 1 had been distinguishable on this ground; the decision in Rodnall Ld. v. Ludbrook [1955] 1 Q.B. 1 would have been given per incuriam.

(3) That, although the transfer to the company was not in the prescribed statutory form, it was not for that reason invalidated, having regard to the wide discretion given to the registrar by rules 74 and 123 (1) of the Land Registration Rules, 1925, as to the forms to be used, and by rule 322 (1) enabling him to authorize a departure from the general rules if he was satisfied that he could properly do so. The acceptance for registration of the form actually used must be taken as conclusive of its sufficiency in point of form.

Note to Brickdale and Stewart-Wallace on the Land Registration Act, 1925 (4th ed., 1939, p. 380) disapproved.

APPEAL from Judge Wilfrid Clothier, sitting at Lambeth County Court.

On December 20, 1952, one Desmond Dixon, of 87, Eric Street, Bow, London, E.3, transferred to the plaintiff company, Morelle Ld., the residue of a term of 99 years from December 25, 1865, granted by a lease dated February 6, 1868, by the Ecclesiastical Commissioners for England relating to premises known as 158, Coldharbour Lane, London, S.E.5, part of which was at the date of the transfer let to the defendants, Frederick Wakeling and Louise Isabella Wakeling his wife, as weekly tenants at a rent of 45s. 5d. per week, inclusive of general and water rates. The land was registered in H.M. Land Registry with a leasehold possessory title, the date of first registration being July 19, 1904. The transferor, Dixon, was registered as proprietor on November 26, 1951. In the instrument of transfer to the plaintiff company the registered office of the company was stated to be 8, Upper O'Connell Street, Dublin, Eire.

The plaintiff company applied to H.M. Land Registry to have the transfer registered, and on January 27, 1953, the company was registered as the present proprietor of the leasehold possessory title in the property, the address of the company on that occasion being given as "care of Yamild Ld., 128, Albany Street, N.W.1," and the price paid was said to be £85.

On July 9, 1954, the plaintiff company commenced proceedings against the tenants claiming arrears of rent from January 27, 1953, to July 5, 1954, less rates, totalling £105 9s. 6d. By their

defence the defendants challenged the title of the plaintiff company to sue on the ground that, as the company had not obtained a licence from the Crown in mortmain to acquire or to hold the land, the same was forfeit by virtue of the provisions of section 1 of the Mortmain and Charitable Uses Act, 1888.¹ They further claimed, inter alia, that they were not the tenants of the plaintiff company.

At the hearing in the county court the plaintiff company contended that, notwithstanding the effect of the Mortmain Acts, registration had given to the company a good title to the land and the right to sue in respect of it, unless and until the Crown or some other person entitled to make application obtained rectification of the register. The county court judge dismissed the claim and the company appealed.

On December 9, 10, 1954, the Court of Appeal, consisting of Evershed M.R., Birkett and Romer L.JJ., adjourned the hearing of the appeal to give the Attorney-General an opportunity to attend as amicus curiae, and it came on before a full court of five judges. At the opening of the appeal, application was made under R.S.C., Ord. 16, r. 11,² that the Crown should be joined as a defendant, but the court postponed deciding this matter until the conclusion of the appeal, the Crown appearing as amicus curiae. At the conclusion of the appeal, and after judgment had been delivered, application was made again, but leave to join the Crown was refused.

1 Mortmain and Charitable Uses Act, 1888, s. 1: "(1) Land shall not be assured to or for the benefit of, or acquired by or on behalf of, any corporation in mortmain, otherwise than under the authority of a licence from Her Majesty the Queen, or of a statute for the time being in force, and if any land is so assured otherwise than as aforesaid the land shall be forfeited to Her Majesty from the date of the assurance, and Her Majesty may enter on and hold the land accordingly: (2) ... (iv) If the right of entry under this Act is exercised by or on behalf of a mesne lord, the land shall be forfeited to that lord from the date of the assurance instead of to Her Majesty."

S. 10: "... (iii) 'Land' includes tenements and hereditaments corporeal and incorporeal of whatsoever tenure, and any estate and interest in land. ..."

2 R.S.C., Ord. 16, r. 11: "... The court ... may, at any stage of the proceedings, either upon or without the application of either party ... order that the names of any parties improperly joined, whether as plaintiffs or defendants, be struck out, and that the names of any parties, whether plaintiffs or defendants, who ought to have been joined, or whose presence before the court may be necessary in order to enable the court effectually and completely to adjudicate upon and settle all the questions involved in the cause or matter, be added:..."

Sir Reginald Manningham-Buller Q.C., A.-G., Geoffrey Cross Q.C. and Denys Buckley for Her Majesty's Treasury as amici curiae. The decision in Morelle Ld. v. Waterworth³ that the assignment to the company was an assurance of land in mortmain and resulted in the term being automatically forfeited to the Crown does not bind the court in the present case, because, first, in this case, and not in Morelle Ld. v. Waterworth,³ the title to the interest was registered at the Land Registry and the assurance in mortmain was a transfer of that registered interest completed by registration of the company as proprietors in succession to the transferor. Secondly, the decision in Morelle Ld. v. Waterworth³ was given per incuriam.

There is no hard-and-fast rule for determining whether a decision has been given per incuriam, but applying the principle in Young v. Bristol Aeroplane Co. Ld.⁴ in the light of the later cases of Police Authority for Huddersfield v. Watson⁵; Nicholas v. penny⁶; Rex v. Northumberland Compensation Appeal Tribunal, Ex parte Shaw,⁷ and A. & J. Mucklow Ld. (in liquidation) v. Inland Revenue Commissioners,⁸ if the argument before the court was not the best that could have been put, so that relevant authorities, judicial or statutory, were not brought to the attention of the court, or if the argument was not fully developed, the decision may be open to question on the ground that it was given per incuriam. [Reference was also made to Willcock v. Muckle.⁹] If the matter not brought to the attention of the court was a decision which was not binding on that court, but one which might have influenced it to come to a conclusion different from that actually reached, it may be a question of degree whether the decision was given per incuriam, but that is not the present case, for here vital matters were not brought to the attention of the court.

In Morelle Ld. v. Waterworth¹⁰ the court was being asked to deal with an unfamiliar branch of law which had fallen into disuse until that case was brought. The submissions on the question of mortmain had to be presented at short notice and

3 [1955] 1 Q.B. 1; [1954] 2 All E.R. 673.

4 [1944] K.B. 718; 60 T.L.R. 536; [1944] 2 All E.R. 293.

5 [1947] K.B. 842; 63 T.L.R. 415; [1947] 2 All E.R. 193.

6 [1950] 2 K.B. 466; 66 T.L.R. (Pt. 1) 1122; sub nom. Penny v. Nicholas [1950] 2 All E.R. 89.

7 [1951] 1 K.B. 711; [1951] 1 T.L.R. 270; [1951] 1 All E.R. 268; ([1952] 1 K.B. 338; [1952] 1 T.L.R. 161; [1952] 1 All E.R. 122, C.A.).

8 [1954] Ch. 615; [1954] 2 All E.R. 508.

9 [1951] 2 K.B. 844; [1951] 2 T.L.R. 373; [1951] 2 All E.R. 367.

10 [1955] 1 Q.B. 1.

were not fully developed. The judgment was not a reserved judgment. In those circumstances it is not surprising that several important points were not sufficiently stressed or were given no eight at all.

The construction of the Mortmain and Charitable Uses Act, 1888, was allowed to proceed on a wrong footing because it was not drawn to the attention of the court that that Act (as amended in 1891) was a consolidating statute, which would not, prima facie, effect a radical alteration in the law. If the language of such a statute makes a clear and unambiguous extension of the pre-existing law, effect must, of course, be given to it: Murugiah v. Jainudeen and MacConnell v. E. Prill & Co. Ld.¹²; but if there is any ambiguity there is a strong presumption against a construction of such a statute which would result in amending the pre-existing law: In re Budgett¹³ and Aristoc Ld.. v. Rysta Ld.¹⁴ That it was not the intention of the Act of 1888 to alter the pre-existing law is indicated by the title. In construing the Act of 1888, as amended in 1891, regard should have been had to the background of the law of mortmain as it previously stood - that is, with particular reference to the terms of the confirmation of Magna Carta, 9 Hen. 3, c. 36, and the Statute De Religiosis Viris, 1279, 7 Edw. 1. These statutes may have been mentioned in Morelle Ld. v. Waterworth,¹⁵ but the significance of the feudal origin of the law of mortmain was not mentioned. It was not pointed out that those statutes were directed to the holding of land in feudal tenure and struck at dispositions of the fee. Leaseholds were not within the scope of the law of mortmain, except where the term granted was of such duration that it was practically equivalent to a freehold so that the grant was a colourable transaction masking an alienation of the fee. Under the old law, if a long lease had been granted at a nominal rent to a religious house the fee would have been liable to go back to the feudal lord, or in default to the Crown, but if on the granting of the lease a proper rent had been reserved, a subsequent disposition to a religious house would be innocuous. A term of 99 years, such as that granted by the Ecclesiastical Commissioners here, would not have been regarded as tantamount to an alienation of the fee. Still less would a term of the length assigned to the company have been so regarded. If the term originally granted was not

11 [1955] A.C. 145.

12 [1916] 2 Ch. 57; 32 T.L.R. 509.

13 [1894] 2 Ch. 557, 561.

14 [1945] A.C. 68, 93.

15 [1955] 1 Q.B. 1.

within the scope of the law of mortmain, an assignment of part of the term obviously would not have been affected.

The point was not taken in Morelle Ld. v. Waterworth¹⁵ that under the old law if in the present circumstances there had been an assurance into mortmain the effect would have been that the reversion of the Ecclesiastical Commnissioners would have been liable to forfeiture, for under the old law the subject-matter forfeited was in all cases the fee itself.

Under the old law forfeiture was not automatic: see Shelford, The Law of Mortmain (1836), p. 9; Co.Lit. 2b; and Tudor on Charities, 5th ed., p. 414. An assurance into mortmain rendered the interest liable to be forfeited, but forfeiture was not immediate. A distinct and well-established procedure had to be followed before it became effective. A corporation had capacity to take the land but not to hold it, and if the Crown put in a claim the corporation had to give up the land. But the right of forfeiture was subject to the prior like rights, in gradation, of the mesne lords, if any. It was quite clear under the Statute De Religiosis Viris that the fee did not go directly to the Crown.

The result in Morelle Ld. v. Waterworth,¹⁵ therefore, involves holding that the Act of 1888, as amended in 1891, made two radical alterations in the pre-existing law, but the relevant provisions do not justify such a construction. First, so far as the inclusion of leaseholds is concerned, it is significant that the Act of 1888 related both to the law of mortmain and of charitable uses which had previously been the subject of the Georgian Mortmain Act, the Statute 9 Geo. 2. The inclusion in the definition of land in section 10 (iii) of the Act of 1888¹⁶ of the phrase "any estate and interest in land," which in Attorney-General v. Graves¹⁷ was held to include leaseholds (and which was excluded by section 3 of the Act of 1891¹⁸, was attributable to the application of the Act of 1888 to charitable uses. The note in Tudor on Charities, 5th ed., p. 434, goes too far. All the cases cited in support are on the Georgian Mortmain Act and the note is inconsistent with what is said at p. 415.

Secondly, the Act of 1888 does not clearly provide that forfeiture is to be automatic. "Forfeiture" is an ambiguous word

15 [1955] 1 Q.B. 1.

16 See note 1 on p. 382.

17 (1752) Amb. 155.

18 Mortmain and Charitable Uses Act, 1891, s. 3, as amended by the Statute Law Revision Act, 1908: "'Land' in the Mortmain and Charitable Uses Act, 1888, and in this Act, shall include tenements and hereditaments, corporeal or incorporeal, of any tenure, but not money secured on land or other personal estate arising from or connected with land."

and is used in two distinct senses throughout the statutes. It can mean either (a) shall be forfeited, or (b) "shall be liable to be forfeited." In In re Levy's Trusts¹⁹ the two meanings are made clear. It appears to have been used in both senses in section 1 of the Act of 1888. In section 1 (2) (iv) the sense is clearly "confiscated," but that is after the right of re-entry has been exercised. In section 1 (1), if "forfeited" is not given the other meaning, the further provision "may enter and hold" becomes mere surplusage, for the fee, if forfeited, must necessarily go at once to someone - there cannot be a gap during which it is not vested at all. It would be wrong to give effect to this ambiguous word so as to alter the pre-existing law. [Reference was also made to Roberts's Civil Proceedings by and against the Crown (1908), pp. 420, 423.]

C. N. Shawcross Q.C. and J. P. Widgery, for the plaintiff company, adopted the above argument, and added: As this matter concerns property it is necessary in accordance with R.S.C., Ord. 16, r. 11, that every necessary party should be before the court. The Crown, who was an essential party in Morelle Ld. v. Waterworth,²⁰ was not before the court, and, therefore, the decision must have been given per incuriam. Secondly, it is plain that the passage in Halsbury's Laws of England, 3rd ed., vol. 4, at p. 246, note (h), was not cited in Morelle Ld. v. Waterworth,²⁰ though Morris L.J. drew attention²¹ to the passage at p. 83 of vol. 8 of the 2nd ed.: see the 3rd ed., vol. 9, at p. 73, where the decision in Morelle Ld. v. Waterworth²² has been noted but the text has not been altered.

[MORRIS and DENNING L.JJ. The passage in vol. 4 at p. 246 was not cited in Morelle Ld. v. Waterworth,²² nor was Doe d. Evans, Evans v. Evans,²³ which supports the proposition at p. 73 of the 3rd ed., vol. 9, that the Crown may not enter before office found, referred to.]

In Mayor, Aldermen and Citizens of Canterbury v. Wyburn²⁴ the Judicial Committee of the Privy Council made it plain that the Act of 1888 was only a consolidating statute.

Gerald Gardiner Q.C. and Greville Janner for the defendant tenants. The argument that Morelle Ld. v. Waterworth²⁵ was decided per incuriam is not open in this court; but even if it could be taken, no new or convincing authority has been cited

19 (1885) 30 Ch.D, 119.

20 [1955] 1 Q.B. 1.

21 Ibid. 4.

22 [1955] 1 Q.B. 1.

23 (1826) 5 B. & C. 584, 587.

24 [1895] A.C. 89.

25 [1955] 1 Q.B. 1.

which was not then before the court; it is merely submitted that the argument might have been more fully developed. Both the vital submissions, that is, that the law of mortmain does not apply to short leases, and that forfeiture on an assurance into mortmain is not automatic, were made and rejected on the earlier occasion. It cannot be right that the decision of the court was given per incuriam merely because the Crown was not a party to the proceedings; the Crown is not a party now, and if that submission were to be accepted it could be raised in this case at a later stage. The submissions made are not within the principle of Young v. Bristol Aeroplane Co. Ld.²⁶ In that case the fourth and last class of cases which would be regarded as having been decided per incuriam was something of a very limited character, that is, that the decision must have been different if the court had been referred to a particular statute or statutory rule decisive of the issue, and that is not so here. [Reference was also made to Williams v. Glasbrook Bros. Ld.²⁷]

Sir Reginald Manningham-Buller Q.C., A.-G. replied.

On February 15, the court having indicated that the decision in Morelle Ld. v. Waterworth²⁸ was not given per incuriam, and stated that its reasons for so holding would be put into writing, submissions were made on the question whether that case was distinguishable because the title in the present case was registered at the Land Registry.

Sir Reginald Manningham-Buller Q.C., A.-G., said that the Crown was not concerned with this aspect of the case.

C. N. Shawcrss Q. C. and J. P. Widgery for the plaintiff company. It is a cardinal principle of land registration that the registered interests are alone to be recognized. Prima facie, therefore, the effect of registration is to make an entry on the register incontestable until it has been rectified. That principle operates even where the entry on the register has been obtained by fraud or persuasion, though there is no question of that in the present case, because until the decision in Morelle Ld. v. Waterworth²⁸ it was not thought that the law of mortmain applied to short leases and the practice of the Land Registry embodied that view: see the footnote to rule 121 of the Land Registration Rules, 1925, contained in Brickdale and Stewart-Wallace on the Land

26 [1944] K.B. 718.

27 [1947] 2 All E.R. 884.

28 [1955] 1 Q.B. 1.

Registration Act, 1925, 3rd ed., at p. 434 (4th ed. (1939), at p. 380).

The principle is subject to certain exceptions. Section 80 of the Act of 1925²⁹ preserves the right of the Crown to bona vacantia or forfeiture notwithstanding registration. That saving is, however, made subject to express provision to the contrary. In particular, so far as this case is concerned, it must be read with section 23,²⁹ which provides that a disposition for value of a registered leasehold estate is to be "deemed to vest" in the transferee the estate transferred free from the interests of the Crown.

The county court judge said that section 23 was confined to protecting the interests of third parties and, relying on a dictum of Romer J. in Robert Batcheller & Sons Ld. v. Batcheller,³⁰ he said that the provision that the interest should be "deemed to vest" could not operate to protect the alleged interest of a party who with full knowledge that he had no title succeeded in getting his name on the register erroneously. But that dictum has been overruled by Grundt v. Great Boulder Proprietary Mines Ld.³¹; see now the Companies Act, 1948, Sch. I, Table A, art. 92. It is submitted that "deemed to vest" is equivalent to "shall confer" or "vest." The words "deemed to vest" were considered in Rex v. Norfolk County Council³²; Hill v. East & West India Dock³³; Shepheard v. Broome,³⁴ and Reg. v. Westminster

29 Land Restoration Act, 1925, s. 23: "(1) In the case of a leasehold estate registered with an absolute title, a disposition (including a sub-demise thereof) for valuable consideration shall, when registered, be deemed to vest in the transferee or underlessee the estate transferred or created to the extent of the registered estate, or for the term created by the subdemise, as the case may require, with all implied or expressed rights, privileges, and appurtenances attached to the estate transferred or created ... free from all other estates and interests Whatsoever, including estates and interests of His Majesty ... (4) In the case of a leasehold estate registered with a possessory title, a disposition (including a subdemise thereof) ... shall, when registered, have the same effect as it would have had if the land had been registered with an absolute title. ..."

S. 69: "(1) The proprietor of land ... shall be deemed to have vested in him without any conveyance, where the registered land is freehold, the legal estate in fee simple in possession, and where the registered land is leasehold the legal term created by the registered lease,..."

S. 80: "Subject to the express provisions of this Act relating to the effect of first registration of title and the effect of registration of a disposition for valuable consideration, nothing in this Act affects any right of His Majesty to any bona vacantia or forfeiture."

30 [1945] Ch. 169, 176; [1945] 1 All E.R. 522, 530.

31 [1948] Ch. 145; [1948] 1 All E.R. 21.

32 (1891) 60 L.J.Q.B. 379, 380.

33 (1884) 9 App.Cas. 448, 454.

34 [1904] A.C. 342.

Unions Assessment Committee.³⁵ They do more than establish a prima facie case; they raise an irrebuttable presumption even if everyone knows that what is to be deemed to have vested has not in fact done so, or where it is not known whether it has vested. Section 69^35a of the Act of 1925 assimilates the provisions relating to freeholds and to leaseholds and makes it plain that the effect of registration of leaseholds is to be the same as that of freeholds, although in the case of freeholds the words used are "shall vest" (as in section 5) and in the case of leaseholds are "shall be deemed to vest." It is perhaps significant to note the further difference in language in section 20 where the words used in relation to a disposition of a freehold estate registered with absolute title are "shall confer." If a distinction had been intended between freeholds and leaseholds, one would have expected the same language to have been used throughout when referring to freeholds; it seems, therefore, as though the expressions may have been used loosely.

In re Suarez (No. 2)³⁶ is not in point, for there the first registration was after the escheat had taken place, but this was a disposition of a previously registered interest. Here the liability to forfeiture arose on the execution of the transfer, for that was the assurance into mortmain. An equitable interest can be forfeited under the Act of 1888. When the transferor purported to deal with this company, which had no licence in mortmain, he forfeited his interest. The forfeiture did not operate only from the date of the transfer of the legal estate.

[EVERSHED M.R. But the title remained in the transferor until registration was complete, subject to an equity in the transferee.]

The transferor was trustee for the transferee.

[ROMER L.J. The transferor does not seem to have been a trustee for the transferee. The transfer gave rise to a personal equity against the transferor, but it was not an assurance of an equitable interest within section 10 of the Act of 1888.]

But it was an assurance of land within section 1 of that Act.

[JENKINS L.J. There must have been a contract to convey, but a mere contract does not come within the Act.]

It is close to the mischief; there must be no purported dealing with the land giving the company an interest in land unless the company has a licence to hold land in mortmain. An assurance means any undertaking whereby a person to whom it is given

35 [1917] 1 K.B. 832.

35a See note 29 on p. 388.

36 [1924] 2 Ch. 19.

acquires a right into or over land. Here some right was created immediately the transferor and the transferee purported to deal with this land.

If, however, there is no "assurance" until registration is completed, it is the registration which constitutes the assurance into mortmain and the Mortmain Act operates to vest the interest in the Crown contemporaneously with the registration. On that footing the assurance would be automatically avoided and would be a nullity.

[EVERSHED M.R. The point made by Coke (Co.Lit. 2b) that a licence in mortmain is required not to take but to hold land seems more consistent with the conception that the land has to be got into the corporation's hand before it comes within the mischief of the Act.]

It would no doubt lean to that view. If so, what was registered was something which by the fact of registration became forfeited. That may seem absurd, but not more so than the effect of the decision in In re Suarez (No. 2)³⁷ that the self-constituted heir who registered when he knew that he had no title could nevertheless defeat any claim or right of the Crown.

Accepting that it is the transfer when registered which constitutes the assurance into mortmain, nevertheless until the entry is rectified the registered proprietor has an indisputable title against all the world. The entry on the register stands both as against the Crown and the tenant, who must go on paying rent to the registered proprietor until the register is rectified. This does not mean that the title is rehabilitated or revived by the registration, nor is the Crown precluded from applying for rectification, but until the title of the Crown is perfected by registration the company is entitled to go on dealing with the land. Rectification can be made either by the registrar or by order of the court, but no provision is made for rectification to be retrospective.

[MORRIS L.J. Could the county court judge have ordered rectification although the Crown had not asked for it?]

It is submitted that he could not on his own motion, but he could have given directions to the registrar. [Reference was made to Chowood Ld. v. Lyall (No. 2)³⁸ and to In re Chowood's Registered Land,³⁹ applied in In re 139, Deptford High Street.⁴⁰]

Gardiner Q.C. and Greville Janner for the defendant tenants.

37 [1924] 2 Ch. 19.

38 [1930] 2 Ch. 156.

39 [1933] Ch. 574.

40 [1951] Ch. 884; [1951] 1 All E.R. 950.

If Morelle Ld. v. Waterworth⁴¹ is distinguishable on the ground that the present case is concerned with registered land, then Rodnall Ld. v. Ludbrook,⁴¹ which was also concerned with registered land, was decided per incuriam, for the point was not taken and the court was told that the case was on all fours with Morelle Ld. v. Waterworth.⁴¹

The Act of 1925 should be construed on the footing that the difference in wording between the provisions relating to freeholds ("shall vest") and leaseholds ("shall be deemed to vest") reflects an intentional difference in meaning. Where a court is required to construe a statute on the footing that something which has not happened is to be deemed to have happened, the court is not merely entitled, but bound, to ascertain for what purposes and between what parties the hypothesis is to be applicable, and the burden of proving that the hypothesis applies is on the person who seeks to benefit by it: see Wright v. Arnold⁴²; Hill v. East & West India Dock,⁴³ and Ex parte Walton, In re Levy,⁴⁴ which was followed, for example, in Leitch v. Emmott.⁴⁵ The primary purpose of the Land Registration Act, 1925, is, unlike the continental systems of land registration, to simplify conveyancing, not to create a title which cannot be disputed. The objects of the Act are summarized in Attorney-General v. Odell.⁴⁶ On the true construction of section 23 (1) "deemed to vest" is used in relation to the rights of bona fide third parties. The county court judge was right in saying that this section was never intended to protect a person who knew that he had no title to the interest in question but had somehow got himself on to the register. The purpose of the distinction between the language used in relation to leaseholds and freeholds is admittedly obscure; it may be that the formalities which have to be complied with when registering freeholds are more rigorous than those applicable to leaseholds.

[JENKINS L.J. In the case of leaseholds it is necessary to take possession; that is why the phrase "deemed to vest" was used for leaseholds but not for freeholds: see note (c) to section 9 of the Land Registration Act, 1925, in Brickdale and Stewart-Wallace, 4th ed., p. 90. The words were retained after the abolition of interesse termini.]

That would indicate that the use of the different words was

41 [1955] 1 Q.B. 1.

42 [1947] K.B. 280; 62 T.L.R. 751; [1946] 2 All E.R. 616.

43 9 App.Cas. 448, 455.

44 (1881) 17 Ch.D. 746, 756.

45 [1929] 2 K.B. 236, 248.

46 [1906] 2 Ch. 47, 69.

intentional and was intended to convey a different meaning. Section 69 does not really add anything.

Forfeiture is now automatic and immediate; the requirement of an inquiry as a necessary preliminary to forfeiture was abolished by the Queen's Remembrancer Act, 1859. The forfeiture took effect on the execution of the transfer and the property now is in the Crown; there is no power of disclaimer comparable to that contained in sections 354 and 355 of the Companies Act, 1948; it does not necessarily follow, however, that the Crown is liable on all the incidents of the leasehold interest.

If, however, forfeiture did not take effect on the execution of the transfer, section 23 of the Act of 1925 can have no application here because registration will have preceded the forfeiture. There are three conditions precedent to the operation of the "deeming" provisions in section 23: (a) there must have been a disposition within the section; (b) valuable consideration must have been given; and (c) the interest must have been registered. Whether there has been a disposition depends on section 21 (5), which refers back to section 21 (1); a disposition in the prescribed manner, and that refers to section 144. Here the prescribed manner was as laid down by rule 121 of the Land Registration Rules, 1925 (S.R. & O., 1925, No. 1093/L.28), Form 35, note 1.⁴⁷ In the present case, however, that form was not used; if the proper form had been used the absence of a licence in mortmain would at once have been apparent. It is doubtful, therefore, whether this was a disposition within section 23, and the onus of proving that matter is on the company.

It may be that if the registrar, in exercise of the powers conferred by rules 74 and 322 (1), decides to accept an application for registration although it has been made on the wrong form, the registration cannot for that reason alone afterwards be impeached, but the "deeming" provisions in section 23 will not apply unless the proper form has been used. No doubt the registrar took the view that no licence was needed here, but that is not the point. Further, no evidence was called to prove that the transferor ever received valuable consideration for his interest. The receipt clause in the transfer is not in itself evidence.

It has been suggested that the transfer was not within the

47 Land Registration Rules, 1925, r. 121: "A transfer of land to an incorporated company or other corporation, sole or aggregate, shall be made by an instrument in Form 35, and, save as mentioned in this rule, shall refer to the licence in mortmain or statute enabling the corporation to acquire or hold the land."

mischief of the Mortmain Acts until registration because the transferor was until then holding on trust for the transferee, but the Mortmain Acts apply equally to a transfer to A in trust for B where A has no licence, and to A in trust for C where A is entitled to hold but C is not. "Transfer" is not defined in the Mortmain Acts, but this would come within the mischief. If this is not a transfer, then the interest is still vested in the transferor.

C. N. Shawcross Q.C. in reply. The necessary consequence of the submission that section 23 does not apply unless the proper form has been used is that where the wrong form has been used, even if the registrar has accepted it, the registration, whether of absolute or possessory title and whether relating to a freehold or to a leasehold, has no effect. That would be directly opposed to the obvious intention and purpose of section 21 (5), in relation to leaseholds, and to section 18 (5), with regard to freeholds. Even in the case of fraud, registration is not a nullity save to the limited extent specified. The documents tendered by the company to the county court judge included the land certificate, which by section 68 is admissible as evidence of the matters therein contained, and it included sufficient prima facie evidence that valuable consideration was given and also that the registration was effected in due form.

Section 21 (5) should not be given a narrow construction; it applies to a disposition which complies substantially with the rules. If, however, this was an unauthorized disposition and is, therefore, a nullity, then there has not been any forfeiture and the rent is still payable to the transferor. If the forfeiture takes effect on registration, then there was no irregularity. But if the transfer constituted such a dealing with land as to give rise to a forfeiture, then no form applicable could provide for registration of that title. If so, it can be argued that the mere attempt to transfer to a company incapable of holding land is a nullity and the residue of the lease remains in the transferor and has never been forfeited to the Crown.

No distinction was intended between "deemed to vest" in section 23 and "shall vest" in section 5: see Grundt v. Great Boulder Proprietary Mines Ld.⁴⁸ It is said that Parliament intended to continue the use of the terms after the abolition of interesse termini. But in the absence of a clear indication of the purpose for which the different wording was used, the adoption of these two phrases in a consolidating Act must be taken to have

48 [1948] Ch. 145.

been by inadvertence or on the assumption that the meaning and effect was precisely the same. There is no significant difference between the formalities for the registration of freeholds and leaseholds.

Section 105 of the Act of 1875, which saved the right of the Crown to bona vacantia and on a forfeiture, and corresponded to the present section 80, was worded differently and was not subjected to express provisions of the Act to the contrary. Therefore, the position is stronger now than it was when In re Suarez (No. 2)⁴⁹ was decided.

G. Cross Q.C. in reply. A person dealing with a registered proprietor is not concerned to see that the prior registration was properly made. It is essential that third parties should be able to deal safely with the registered proprietor without inquiry as to whether the registration was in the proper form. The difficulty here arose because the registrar wrongly satisfied himself that no licence in mortmain was required. Section 69 has the effect of giving the registered proprietor a valid and indefeasible title even though there has not been a disposition and transfer presented at all. The idea of the Land Registration Act was to equate the holding of land with a share register, so that by obtaining registration, however improperly, the legal estate would vest in the registered proprietor, though of course proceedings could be taken to rectify. The fact that provision is made for rectification contemplates that someone has got on to the register who had no title prior to registration. Chowood Ld. v. Lyall (No. 2)⁵⁰ and In re 139, Deptford High Street⁵¹ were both cases of mistake registration.

March 3. EVERSHED M.R. read the following judgment of the court: The plaintiff company, the appellant in this court, is a company incorporated in Dublin according to the laws of Eire, and it claims in the present proceedings to be the proprietor of a leasehold interest in premises known as 158, Coldharbour Lane, London, S.E.5. The action is one for alleged arrears of rent from tenants occupying a part of the premises. The defences raised in the action included a challenge to the plaintiff company's title to sue on the ground that since the plaintiff company is a foreign corporation having no business or address in England, and since it has neither availed itself of the provisions of section 408 of the

49 [1924] 2 Ch. 19.

50 [1930] 2 Ch. 156.

51 [1951] Ch. 884.

Companies Act, 1948, nor has it a licence in mortmain, so as to entitle it to hold land in this country, the interest which the plaintiff company claims to have in the premises in question had, prior to the initiation of the present proceedings, been forfeited to the Crown. The defendant tenants rely particularly upon the decision of this court in the earlier case in which the plaintiff company was involved, Morelle Ld. v. Waterworth.¹

In the case just mentioned (which I will hereafter refer to as the "first Morelle case"¹ two distinct points were raised. First, was the assurance to the plaintiff company of the unexpired residue of a term of years in house property in London an assurance of land in mortmain within the terms of section 1 of the Mortmain and Charitable Uses Act, 1888? Second, if so, was the term so assured automatically forfeited to the Crown by virtue of the same subsection? Both these questions were answered affirmatively by this court. Both questions turned on the proper interpretation of the relevant terms of the Mortmain and Charitable Uses Acts, 1888 and 1891.

It is not in dispute that the only distinction between the present case and the first Morelle case¹ - though it may be a distinction of substance - is that, in the present case, the land in question (which, like that in the earlier case, is the subject of an unexpired residue of a term of years) is registered land, and that the name of the plaintiff company has been inserted on the Land Register in respect of that land as proprietor thereof with a possessory title. It has been accordingly contended, unsuccessfully in the county court, on behalf of the plaintiff company that such registration has, in any event, given to the plaintiff company a good title to the land and, accordingly, to sue in this action, notwithstanding the effect of the Mortmain Acts, unless and until the Crown or some other person entitled to make application obtains rectification of the register.

It will be convenient to refer now to the relevant provisions of the Acts of 1888 and 1891. [His Lordship read section 1 (1) of the Act of 1888, which is in Part I of the Act entitled "Mortmain," and continued:] Subsection (2) of the section contains a number of provisos of which, having regard to the nature of the argument later discussed, paragraph (iv) is of some significance. [His Lordship read the paragraph and continued:] Section 10 contains certain definitions, and it is to be observed that these definitions relate equally to Part I of the Act relating to mortmain

1 [1955] 1 Q.B. 1; [1954] 2 All E.R. 673.

and to Part II relating to charitable uses. The material definitions are: "(i) 'Assurance' includes a gift, conveyance, appointment, lease, transfer, settlement, mortgage, charge, incumbrance, devise, bequest, and every other assurance by deed, will, or other instrument; and 'assure' and 'assuror' have meanings corresponding with assurance. ... (iii) 'Land' includes tenements and hereditaments corporeal and incorporeal of whatsoever tenure, and any estate and interest in land." The last-mentioned definition was replaced by section 3 of the Mortmain and Charitable Uses Act, 1891 (as later amended by the Statute Law Revision Act, 1908). [His Lordship read the section.] It will be observed that the effect of the amendment by the Act of 1891 has been to exclude from the definition of land, for the purposes of both Acts, the formula "any estate and interest in land."

When this appeal was first called on in December last before Evershed M.R., Birkett and Romer L.JJ., it was suggested, having regard to the importance of the matters involved and since we were informed that a number of properties were similarly affected, that an opportunity should be given to the Attorney-General to attend the appeal and put forward such arguments as he thought fit as amicus curiae. The case was adjourned accordingly, and the Attorney-General has availed himself of the opportunity which we gave. We are greatly indebted to the Attorney-General and to Mr. Cross for their very considerable assistance in a difficult matter. On the appeal again coming on before a full court, the first point raised by the Attorney-General was that the Crown should be added as a party to the proceedings as being (within the terms of R.S.C., Ord. 16, r. 11) a party "who ought to have been joined, or whose presence before the court may be necessary in order to enable the court effectually and completely to adjudicate upon and settle all the questions involved in the cause or matter ..." We decided to postpone our decision upon this application until we had heard the argument upon the whole case, and we shall deal hereafter with it. It may be stated, however, that though the apparent interest of the Crown would be to support the Court of Appeal's conclusion in the first Morelle case,² in reality this is found not to be so: for, if the leasehold terms in question have vested in the Crown, then the Crown would presumably be liable upon the covenants contained in the leases, including the covenants relating to repairs and delivery up. As we have stated, the alleged interests of the plaintiff company in the present case and

2 [1955] 1 Q.B. 1.

in the first Morelle case² are interests in the unexpired residues of terms of years. In the present case the term of years expires in 1964. It is plain that the Crown have not thought it right or in its proper interests to seek to support the decision in the first Morelle case² and of the county court judge in the present appeal.

The next point, accordingly, taken by the Attorney-General, was that the decision of this court in the first Morelle case² was erroneous and, having been arrived at per incuriam, was open now to review and ought not to be followed by this court. Mr. Shawcross, who appeared on behalf of the plaintiff company, felt a difficulty in arguing this point himself - assuming, since this is a county court appeal, that it was sufficiently taken in the court below. The main argument upon this question was accordingly presented to us by the Attorney-General and Mr. Cross as amici curiae.

At our invitation the Attorney-General and Mr. Cross put before us the general character of the argument upon which they would rely in support of their main contention, namely, that this court, in the first Morelle case,² had reached an erroneous conclusion upon one or both of the two questions then submitted to it and above formulated. In so putting this main contention counsel for the Crown informed us of the authorities upon which they relied, but they did not refer specifically to more than a few of them: nor did they fully elaborate their argument. But they then submitted their case for saying that this court had decided the first Morelle case² per incuriam; and we heard this part of the argument upon the basis of the correctness of the Attorney-General's main contention.

This main contention was to the following effect: (1) The Mortmain and Charitable Uses Act, 1888, is by its own title an Act to consolidate and amend the law relating to mortmain. (2) This Act and the amending Act of 1891 should, therefore, according to well-established principle and authority (see, for example, In re Budgett³ and Aristoc Ld. v. Rysta Ld.⁴ be construed, so far as their terms fairly admit, in conformity with the law relating to mortmain as it previously stood - particularly as it stood according to the terms of the confirmation of Magna Carta, 9 Hen. 3, c. 36,⁵ and the Statute De Religiosis Viris,

2 [1955] 1 Q.B. 1.

3 [1894] 2 Ch. 557.

4 [1945] A.C. 68, 93; 61 T.L.R. 121; [1945] 1 All E.R. 34.

5 Magna Carta, 1225 (confirmation) (9 Hen. 3, c. 36): "It shall not be lawful from henceforth to any to give his lands to any religious house, and to take the same land again to hold of the same house. Nor shall it be lawful to any house of religion to take the

1279, 7 Edw. 1.⁶ (3) The earlier law relating to mortmain was based essentially on the conception of the feudal tenure of land. (4) Thus (a) the dispositions struck at were dispositions of the fee, and leaseholds were excluded from its scope, except in so far as a leasehold term was in duration such as to be practically equivalent to a freehold; (b) alternatively, an assignment of a relatively short unexpired residue of a term of years, such as those in question in the present and the first Morelle⁷ cases, was never comprehended by the law relating to mortmain; (c) the penalty for infringing the provisions of the law relating to mortmain was liability to forfeiture (following a distinct and established procedure) and not an automatic forfeiture; (d) moreover, the right of forfeiture in the Crown was subject to the prior like rights, in gradation, of the mesne lords, if any; (e) the subject-matter forfeited was in all cases the fee itself. (5) Finally, in construing the relevant terms of the Mortmain and Charitable Uses Act, 1888, it is of the highest significance that the statute related both to the law relating to mortmain and also to that relating to charitable uses (previously the subject of the statute 9 Geo. 2⁸, and the inclusion in the definition of land in section 10 (iii) of the phrase "any estate and interest in land," which was excluded by the amending Act of 1891, was attributable to the application of the Act to charitable uses.

It was clear to us that this argument had involved considerable research and reference to some of the oldest authorities in our law, and would have taken no little time to develop fully. We did not, in the circumstances, hear the answer which Mr. Gardiner was prepared to offer. For, whether or not, if we were free to treat the matter as res integra, we should arrive at a different

lands of any, and to lease the same to him of whom he received it. If any from henceforth give his lands to any religious house, and thereupon be convict, the gift shall be utterly void, and the land shall accrue to the lord of the fee."

6 Statute De Religiosis Viris, 1279 (7 Edw. 1): "... That no person, religious or other ... buy or sell ... lands or tenements, or under the colour of gift or lease, or that will receive by reason of any other title, whatsoever it be, lands or tenements, or by any other craft or engine will presume to appropre to himself, under pain of forfeiture of the same, whereby such lands or tenements may any wise come into mortmain. We have provided also, That if any person, religious or other, do presume either by craft or engine to offend against this statute, it shall be lawful to us and other chief lords of the fee immediate, to enter into the land so aliened, within a year from the time of the alienation, and to hold it in fee as an inheritance."

7 [1955] 1 Q.B. 1.

8 1736 (9 Geo. 2, c. 36). An Act to restrain the disposition of lands, whereby the same become unalienable.

answer to either or both of the material questions from those given by this court in the first Morelle case,⁹ it is clear that we cannot now reopen those questions at all unless we can properly hold that the decision of this court in the first Morelle case⁹ was given per incuriam so as, consistently with the judgment of this court in Young v. Bristol Aeroplane Co. Ld.¹⁰ to leave the matter at large for our independent decision.

We have carefully considered the judgments and the report of the arguments in the first Morelle case¹¹ as they appear in the Law Reports. We have also had available to us the notes made during the hearing of that case by Denning and Morris L.JJ. With this material before us it has been impossible, in our judgment, to fasten upon anything in the judgments in the first Morelle case,¹¹ or upon any step in the reasoning on which those judgments were based, and to say of it: "Here was a manifest slip or error."

It is true that the argument formulated for us by the Attorney-General and Mr. Cross was not (as it clearly appears) so fully or carefully formulated on the former occasion. In particular, it does not appear that the point was made or at all comparably emphasized that the Act of 1888, being an Act only to consolidate and amend the previous relevant law, must be so construed as prima facie not intended to bring about substantial changes in that law. But, as we have already said, and as we venture to emphasize, the question before that court was one of the true interpretation of the language in fact used by Parliament in the Acts of 1888 and 1891. It is, we think, manifest that section 1 of the Act of 1888 is widely different from that of the statute of 7 Edw. 1 - which is, indeed, not surprising, having regard to their respective dates. Thus, as regards forfeiture, the statute of 7 Edw. 1 lays it down [in (2)] that any prohibited transaction should be "under pain of forfeiture" and continues [in (3)] to provide that in the event of any person offending against the statute "it shall be lawful to us and other chief lords of the fee immediate, to enter into the land so aliened, within a year from the time of the alienation ..."

On the other hand, whatever be the true sense in which the words "shall be forfeited" are used at the end of subsection (1) of section 1 of the Act of 1888, it seems clear, as the Attorney-General observed and conceded, that the same words in paragraph

9 [1955] 1 Q.B. 1.

10 [1944] K.B. 718; 60 T.L.R. 536; [1944] 2 All E.R. 293.

11 [1955] 1 Q.B. 1.

(iv) of subsection (2) of the same section refer inevitably as a matter of language to a forfeiture taking effect immediately. And although there have been several decisions of the courts (named by the Attorney-General) upon the scope of the old law relating to assurances in mortmain, there has been none upon the relevant terms of the Act of 1888, except the case before Wills J. of Truro Corporation v. Rowe,¹² which is not binding on this court and which was criticized in the second edition of Halsbury's Laws of England, vol. 8, p. 83, n. (g) (see now 3rd ed., vol. 9, p. 73, n. (1)), on the ground that the attention of the court had not been directed to the terms of the definitions in section 10 of the Act of 1888. Further, there is no doubt, in our judgment, that the old law relating to mortmain, including the effect, as it had been understood, of the statute of 7 Edw. 1, was clearly put to this court in the first Morelle case,¹³ if less fully or elaborately than upon the present occasion; and this court in the first Morelle case¹³ deliberately expressed its conclusion upon the question whether, as a matter of construction of the Acts of 1888 and 1891, the old view as to the non-applicability of the law of mortmain to relatively short terms of years or to an assignment of the unexpired residues of such terms still held good¹⁴; and also upon the question what effect should be given (in the light of the earlier law) to the terms of section 1 (1) of the Act of 1888 as to forfeiture to Her Majesty. It is also clear, from the judgment of Singleton L.J.,¹⁵ that the court had also in mind the effect of section 3 of the Act of 1891, which removed from the definition of "land" in the Act of 1888 the words "any estate and interest in land."

In delivering the judgment of this court in Youny v. Bristol Aeroplane Co. Ld., Lord Greene M.R. thus stated the effect of the rule stare decisis in its application to the Court of Appeal¹⁶: "In considering the question whether or not this court is bound by its previous decisions and those of courts of co-ordinate jurisdiction, it is necessary to distinguish four classes of case. The first is that with which we are now concerned, namely, cases where this court finds itself confronted with one or more decisions of its own or of a court of co-ordinate jurisdiction which cover the question before it and there is no conflicting decision of this court or of a court of co-ordinate jurisdiction. The second

12 [1901] 2 K.B. 870; 17 T.L.R. 773; [1902] 2 K.B. 709; 18 T.L.R. 820.

13 [1955] 1 Q.B. 1, 4.

14 Ibid. 8, 12.

15 Ibid. 6.

16 [1944] K.B. 718, 725.

is where there is such a conflicting decision. The third is where this court comes to the conclusion that a previous decision, although not expressly overruled, cannot stand with a subsequent decision of the House of Lords. The fourth (a special case) is where this court comes to the conclusion that a previous decision was given per incuriam. In the second and third classes of case it is beyond question that the previous decision is open to examination. In the second class, the court is unquestionably entitled to choose between the two conflicting decisions. In the third class of case the court is merely giving effect to what it considers to have been a decision of the House of Lords by which it is bound. The fourth class requires more detailed examination and we will refer to it again later in this judgment."

Lord Greene M.R. returned to the fourth class, which is that now relevant, when he said¹⁷: "It remains to consider the quite recent case of Lancaster Motor Co. (London) Ld. v. Bremith Ld.,¹⁸ in which a court consisting of the present Master of the Rolls, Clauson L.J. and Goddard L.J., declined to follow an earlier decision of a court consisting of Slesser L.J. and Romer L.J.¹⁹ This was clearly a case where the earlier decision was given per incuriam. It depended on the true meaning (which in the later decision was regarded as clear beyond argument) of a rule of the Supreme Court to which the court was apparently not referred and which it obviously had not in mind. The Rules of the Supreme Court have statutory force and the court is bound to give effect to them as to a statute. Where the court has construed a statute or a rule having the force of a statute its decision stands on the same footing as any other decision on a question of law, but where the court is satisfied that an earlier decision was given in ignorance of the terms of a statute or a rule having the force of a statute the position is very different. It cannot, in our opinion, be right to say that in such a case the court is entitled to disregard the statutory provision and is bound to follow a decision of its own given when that provision was not present to its mind. Cases of this description are examples of decisions given per incuriam. We do not think that it would be right to say that there may not be other cases of decisions given per incuriam in which this court might properly consider itself entitled not to follow an

17 [1944] K.B. 718, 728.

18 [1941] 1 K.B. 675; 57 T.L.R. 418; [1941] 2 All E.R. 11.

19 In Gerard v. Worth of Paris Ld. [1936] 2 All E.R. 905.

earlier decision of its own. Such cases would obviously be of the rarest occurrence and must be dealt with in accordance with their special facts. Two classes of decisions per incuriam fall outside the scope of our inquiry, namely, those where the court has acted in ignorance of a previous decision of its own or of a court of co-ordinate jurisdiction which covers the case before it - in such a case a subsequent court must decide which of the two decisions it ought to follow; and those where it has acted in ignorance of a decision of the House of Lords which covers the point - in such a case a subsequent court is bound by the decision of the House of Lords.

"On a careful examination of the whole matter we have come to the clear conclusion that this court is bound to follow previous decisions of its own as well as those of courts of co-ordinate jurisdiction. The only exceptions to this rule (two of them apparent only) are those already mentioned which for convenience we here summarize: (1) The court is entitled and bound to decide which of two conflicting decisions of its own it will follow. (2) The court is bound to refuse to follow a decision of its own which, though not expressly overruled, cannot, in its opinion, stand with a decision of the House of Lords. (3) The court is not bound to follow a decision of its own if it is satisfied that the decision was given per incuriam."

Some further light has been thrown upon the meaning and scope of the term "per incuriam" by later decisions. In the first, Police Authority for Huddersfield v. Watson,²⁰ a Divisional Court of the King's Bench Division, consisting of Lord Goddard C.J., Atkinson and Lewis JJ., held that that court was, like the Court of Appeal and upon similar principles, hound by previous decisions of its own. In delivering the judgment of the court the Lord Chief Justice said²¹: "What is meant by giving a decision per incuriam is giving a decision when a case or a statute has not been brought to the attention of the court and it has given its decision in ignorance or forgetfulness of the existence of that case or that statute." Applying that principle the Divisional Court held itself bound by the earlier decision of the same court in Garvin v. Police Authority for City of London.²²

In a later case of Nicholas v. Penny,²³ concerned with the

20 [1947] K.B. 842; 63 T.L.R. 415; [1947] 2 All E.R. 193.

21 [1947] K.B. 842, 847.

22 [1944] K.B. 358; 60 T.L.R. 207; [1944] 1 All E.R. 378.

23 [1950] 2 K.B. 466; 66 T.L.R. (Pt. 1) 1122; sub nom. Penny v. Nicholas [1950] 2 All E.R. 89.

question whether evidence of a speedometer reading was prima facie evidence of the speed recorded, the Divisional Court, consisting of Lord Goddard C.J., Humphreys and Morris JJ., held themselves not bound by a previous decision in Melhuish v. Morris²⁴ on the ground that that case had been decided per incuriam. Lord Goddard C.J. said²⁵: "But, without necessarily saying that we can always differ from a previous decision of the Divisional Court merely because it has not been argued on both sides, the court is not obliged to follow that decision, for it has been laid down by the Court of Appeal in Young v. Bristol Aeroplane Co. Ld.,²⁶ which has been followed quite recently in this court, that where material cases or statutory provisions, which show that a court has decided a case wrongly, were not brought to its attention the court is not bound by that decision in a subsequent case. Two remarkable cases which might have been cited to the court in Melhuish v. Morris²⁷ if the case had been argued on both sides were not cited to it, and those cases, I think, would have had a considerable influence on that decision."

A third case to which we were referred by the Attorney-General was that of A. & J. Mucklow Ld. (in liquidation) v. Inland Revenue Commissioners,²⁸ in this court. The case was concerned with the validity of a direction given under section 21 of the Finance Act, 1922 (as amended by section 31 of the Finance Act, 1927), in respect of the so-called "broken accounting period" up to the commencement of the appellant company's winding up, on the ground that the company had not for such period distributed a reasonable amount of its income to its members. It was in that case contended by the Crown (who were held by this court entitled on other grounds to succeed) that a direction given under the section in respect of a broken period was inescapable; and the Crown relied in support of that contention upon the language of Lord Hanworth M.R. and (more particularly) of Slesser L.J. in an earlier case of H. Collier & Sons Ld. v. Inland Revenue Commissioners.²⁹ This court held that they were not bound by the opinions of the majority of the court in the earlier case on the ground (among others) that those opinions proceeded upon a premise which was admittedly erroneous, such premise being inconsistent with an authority binding on the Court of Appeal

24 [1938] 4 All E.R. 98.

25 [1950] 2 K.B. 466, 472.

26 [1944] K.B. 718.

27 [1938] 4 All E.R. 98.

28 [1954] Ch. 615; [1954] 2 All E.R. 508.

29 [1933] 1 K.B. 488; 49 T.L.R. 46; 18 T.C. 83.

which had not been cited in Collier's case.²⁹ In Mucklow's case Evershed M.R. said³⁰: "It is conceded that Slesser L.J. fell into error in supposing that in cases falling under the original Act the commissioners had a duty to ascertain ally 'reasonable' figure which fixed the limits of tax liability. Colville Estate Ld. v. Inland Revenue Commissioners³¹ was not cited to the Court of Appeal in Collier's case.³² In Colville's case³³ it had been clearly held that if in such a case as I am supposing, that is, one falling under the terms of the original Act of 1922, a company had not distributed a reasonable part of its actual income, then the members were liable to be taxed in respect of the whole of that income and not a reasonable part only of it; and that view of the section was later approved in the House of Lords in Fattorini's case³⁴" [Thomas Fattorini (Lancashire) Ld. v. Inland Revenue Commissioners] "per Lord Atkin,³⁵ per Lord Macmillan,³⁶ and per Lord Wright.³⁷ It was argued that the error into which Slesser L.J. fell was nevertheless not essential to the ratio of his decision of the case. As a matter of strict logic, it may be that the conclusion was independent of the false premise. The question is, however, not whether, as a matter of logic, the conclusion depended on the premise, but whether Slesser L.J. thought that his conclusion followed from the antithesis which he had earlier stated; and I am very far from satisfied that, if it had not been for his view of the effect of the original section and of the contrast which he consequently discerned from the introduction of the formula 'available for distribution, etc.,' he would ever have formed the view which he did of the meaning of that formula. For my part, therefore, I should be prepared to hold that the judgment of Slesser L.J., if it would otherwise be authoritative, can be reviewed in this court (within the principle of Young v. Bristol Aeroplane Co. Ld.³⁸ on the ground that it was delivered, in this essential respect, per incuriam, or that a material part of the reasoning on which the conclusion rests is inconsistent with later pronouncements (in Fattorini's case³⁹ of the House of Lords." Evershed M.R. then referred to the judgment of

29 [1933] 1 K.B. 488.

30 [1954] Ch. 615, 635.

31 [1930] 2 K.B. 393; 15 T.C. 485.

32 [1933] 1 K.B. 488.

33 [1930] 2 K.B. 393.

34 [1942] A.C. 643; [1942] 1 All E.R. 619; 24 T.C. 328.

35 Ibid. 655.

36 Ibid. 660.

37 Ibid. 663.

38 [1944] K.B. 718.

39 [1942] A.C. 643.

Lord Hanworth M.R. and concluded⁴⁰: "I think also that the disabling quality in the judgment of Slesser L.J. must, as a consequence, equally affect that of Lord Hanworth M.R."

Jenkins L.J., in the same case, after saying⁴¹ that he felt considerable difficulty" as to Collier's case,⁴² and after referring⁴³ to Slesser L.J.'s "misapprehension" and to the fact that the views of Lord Hanworth M.R. and Slesser L.J. upon the point raised in Mucklow's case⁴⁴ were not necessary to the decision in Collier's case,⁴⁵ said⁴⁶: "For the reasons I have stated, I cannot regard the circumstances in which the majority judgments in Collier's case⁴⁷ were delivered as wholly satisfactory, and having regard to those circumstances, to the probability that the court was consequently denied the assistance of anything comparable to the very full argument addressed to us in the present case, and to the fact that it was unnecessary for the purpose of deciding the case then before the court to express any opinion on this aspect of the construction of section 31 (4), I think that those are substantial grounds for the view that we would be justified in holding that it should not be considered as a binding authority for the proposition that section 31 (4) is automatic in its effect."

In the light of these authorities it was the contention of the Attorney-General that the question whether a decision had been given per incuriam was not to be determined according to any hard-and-fast rule but was one of degree, depending upon the special circumstances of the case. He referred to the language of Lord Greene M.R., which we have earlier quoted⁴⁸: "We do not think it would be right to say that there may not be other cases of decisions given per incuriam" (i.e., other than decisions given in ignorance or forgetfulness of a statute or a rule having the force of a statute) "in which this court might properly consider itself entitled not to follow an earlier decision of its own. Such cases would obviously be of the rarest occurrence and must be dealt with in accordance with their special facts." In the first Morelle case⁴⁹ (so ran the Attorney-General's argument) the circumstances were of a very special and unusual character; and he referred particularly to the subject-matter, the law relating to mortmain, which is of a specialized and highly

40 [1954] Ch. 615, 637.

41 Ibid. 648.

42 [1933] 1 K.B. 488.

43 [1954] Ch. 615, 650.

44 [1954] Ch. 615.

45 [1933] 1 K.B. 488.

46 [1954] Ch. 615, 650.

47 [1933] 1 K.B. 488.

48 [1944] K.B. 718, 729.

49 [1955] 1 Q.B. 1.

technical character and which very infrequently comes before the courts; to the fact that the arguments were brief, counsel for the plaintiff company having only been instructed in the afternoon before the case came on for hearing; and to the absence of any sufficient emphasis, consequently, upon the connexion of the law relating to mortmain with the feudal conception of land tenure, and upon the fact that the Act of 1888 was a consolidating and amending statute.

We have been unable to accept this argument. As a general rule the only cases in which decisions should be held to have been given per incuriam are those of decisions given in ignorance or forgetfulness of some inconsistent statutory provision or of some authority binding on the court concerned: so that in such cases some part of the decision or some step in the reasoning on which it is based is found, on that account, to be demonstrably wrong. This definition is not necessarily exhaustive, but cases not strictly within it which can properly be held to have been decided per incuriam must, in our judgment, consistently with the stare decisis rule which is an essential feature of our law, be, in the language of Lord Greene M.R., of the rarest occurrence. In the present case it is not shown that any statutory provision or binding authority was overlooked, and while not excluding the possibility that in rare and exceptional cases a decision may properly be held to have been per incuriam on other grounds, we cannot regard this as such a case. As we have already said, it is, in our judgment, impossible to fasten upon any part of the decision under consideration or upon any step in the reasoning upon which the judgments were based and to say of it: "Here was a manifest slip or error." In our judgment, acceptance of the Attorney-General's argument would necessarily involve the proposition that it is open to this court to disregard an earlier decision of its own or of a court of co-ordinate jurisdiction (at least in any case of significance or complexity) whenever it is made to appear that the court had not upon the earlier occasion had the benefit of the best argument that the researches and industry of counsel could provide. Such a proposition would, as it seems to us, open the way to numerous and costly attempts to re-open questions now held to be authoritatively decided. Although, as was pointed out in Young v. Bristol Aeroplane Co. Ld.,⁵⁰ a "full court" of five judges of the Court of Appeal has no greater jurisdiction or higher authority than a normal division

50 [1944] K.B. 718.

of the court consisting of three judges, we cannot help thinking that, if the Attorney-General's argument were accepted, there would be a strong tendency in cases of public interest and importance, to invite a "full court" in effect to usurp the function of the House of Lords and to reverse a previous decision of the Court of Appeal. Such a result would plainly be inconsistent with the maintenance of the principle of stare decisis in our courts.

In conclusion upon this point we would add that we are unable to accept Mr. Shawcross' suggestion that the decision in the first Morelle case⁵¹ should be regarded as per incuriam on the ground that a necessary party to the proceedings, viz., the Crown, was not before the court. A decision cannot, in our judgment, be treated as given per incuriam simply because of a deficiency of parties.

We, therefore, hold that the decision in the first Morelle case⁵¹ is binding upon us.

It remains to consider the contention that this case is distinguishable from the first Morelle case⁵² on the grounds that the land here in question is registered land, and that the assurance in mortmain was effected by means of a transfer for valuable consideration from the previous registered proprietor, one Desmond Dixon, to the plaintiff company, completed by the registration of the plaintiff company as proprietor in succession to the transferor.

We should note that Rodnall Ld. v. Ludbrook,⁵³ decided by this court at the same time and in the same way as the first Morelle case,⁵⁴ was in fact a case of registered land, but it was decided without separate argument, on the admission of counsel that it was indistinguishable from the first Morelle case.⁵⁴ Accordingly, if and so far as the fact and effect of registration are found on examination to afford valid grounds for distinguishing the first Morelle case⁵⁴ from the present case, we are free to make the distinction. On that assumption there can be no doubt that Rodnall Ld. v. Ludbrook⁵⁴ was decided per incuriam, for it was decided in disregard of the statutory provisions which (on the assumption now made) distinguished it in truth from the first Morelle case.⁵⁴

The facts regarding the registered title to the land now in question, namely, the leasehold interest under a lease for 99 years

51 [1955] 1 Q.B. 1.

52 Ibid.

53 Ibid.

54 Ibid.

from December 25, 1865, in No. 158, Coldharbour Lane, London, S.E.5, are briefly these. The land was first registered with a possessory title on July 19, 1904. The immediate predecessor in title of the plaintiff company, Desmond Dixon, was registered as proprietor on November 26, 1951. The instrument of transfer from Desmond Dixon to the plaintiff company was dated December 20, 1952, and was expressed to be made in consideration of the sum of £85, the receipt whereof was thereby acknowledged by Dixon, the plaintiff company being therein described as having its registered office at 8, Upper O'Connell Street, Dublin, Eire. The plaintiff company was registered as proprietor on January 27, 1953, with the address "care of Yamild Ld., 128, Albany Street, N.W.1." There is no evidence showing in detail the order in which the various stages of the transaction were carried out. It seems likely that there was an antecedent contract for the sale and purchase of the property, but this is not proved. Nor is it shown when the £85 was in fact paid by, and the instrument of transfer delivered to, the plaintiff company. It seems likely again, however, that in accordance with the usual practice the £85 was paid against delivery to the plaintiff company of the executed transfer together with the Land Certificate, that the plaintiff company thereafter applied for registration, producing these documents to the Land Registry, and that registration was granted after the usual notice by the registry to Dixon as the registered transferor. There would thus have been an interval of some five weeks between the payment of the purchase price and the completion of the transfer by registration on January 27, 1953, that is, on the assumption that the price was in fact paid on the date borne by the transfer, namely, December 20, 1952.

It was argued by Mr. Shawcross, for the plaintiff company, that, forfeiture or no forfeiture, the plaintiff company as the registered proprietor of the land (that is to say, the leasehold interest comprised in the registered title) must, under the provisions of the Land Registration Act, 1925, be considered as owner of the land for all purposes, including the right to recover and receive the rent payable by tenants of the land holding immediately under such owner, as the defendant tenants do, at all events until such time as the right of the Crown to the land by forfeiture may be asserted and established in proceedings for rectification of the register. This, in Mr. Shawcross' submission, flows as a necessary consequence from the cardinal principle

of land registration that registered interests alone are to be recognized.

But the cardinal principle upon which Mr. Shawcross relies is subject to certain exceptions. In particular, section 80 of the Land Registration Act, 1925, contains a saving of the rights of the Crown. [His Lordship read section 80 and continued:] This means, as we understand it, that registered land is to be forfeited to the Crown in any case in which it would have been so forfeited if unregistered, save in so far as the sections of the Act concerning the effect of first registration and the registration of dispositions for valuable consideration expressly provide that these operations are to discharge the land from any right of the Crown by way of forfeiture.

The provisions of the Act as to first registration are not directly material here, but we quote them as having some bearing upon the arguments addressed to us. Section 5 of the Act provides, with respect to freeholds, that: "the registration of any person as first proprietor thereof with an absolute title shall vest in the person so registered an estate in fee simple in possession in the land, together with all rights, privileges, and appurtenances belonging or appurtenant thereto," subject as therein mentioned: "but free from all other estates or interests whatsoever, including estates or interests of His Majesty." Sections 6 and 7 apply the provisions of section 5 to the cases of first registration of freeholds with a possessory or qualified title, with modifications as to which it is sufficient for the present purpose to note that, where the first registration is of a possessory title only, estates, rights and interests adverse to the title of the first proprietor and subsisting at the time of first registration are not affected. Section 9 of the Act provides with respect to leaseholds that: "the registration under this Act of any person as first proprietor thereof with an absolute title shall be deemed to vest in such person the possession of the leasehold interest described, with all implied or express rights, privileges, and appurtenances attached to such interest," subject as therein mentioned, "but free from all other estates and interests whatsoever, including estates and interests of His Majesty." Sections 10, 11 and 12 apply the provisions of section 9 to the cases of first registration of leaseholds with a good leasehold, possessory, or qualified title, subject to modifications which, where the title is possessory only, are comparable to those applicable to the first registration of freeholds with a possessory title only.

The effect of these provisions would seem to be that if a

corporation not authorized by statute, charter or special licence to hold land in mortmain were to acquire unregistered land, thereby incurring a forfeiture under the Act of 1888, and thereafter were to obtain registration of itself as first proprietor of the land with absolute title, such registration would vest in such corporation the fee simple estate in the land in the case of freeholds, or be deemed to vest in such corporation the possession of the leasehold interest in the case of leaseholds, free from the estate or interest which had in fact accrued to the Crown by reason of the forfeiture: cf. In re Suarez (No. 2).⁵⁵ But that is not this case.

As to the effect of registration of a disposition for valuable consideration, which is the material operation for the purposes of the present case, section 20 of the Act provides, by subsection (1), with respect to freeholds registered with an absolute title that: a disposition of the registered land ... for valuable consideration shall, when registered, confer on the transferee ... an estate in fee simple ... or other legal estate expressed to be created in the land dealt with ...", subject as therein mentioned: "but free from all other estates and interests whatsoever, including estates and interests of His Majesty, and the disposition shall operate in like manner as if the registered transferor ... were (subject to any entry to the contrary in the register) entitled to the registered land in fee simple in possession for his own benefit." Subsections (2) and (3) of the same section apply the provisions of subsection (1) with modifications to registered dispositions for value of freeholds registered with qualified or possessory title. These modifications include where the title is possessory only a saying of the estates, rights and interests excluded from the effect of first registration.

With respect to leaseholds, section 23 (1) of the Act provides that: "In the case of a leasehold estate registered with an absolute title, a disposition ... for valuable consideration shall, when registered, be deemed to vest in the transferee ... the estate transferred ... to the extent of the registered estate ...", subject as therein mentioned, "but free from all other estates and interests whatsoever, including estates and interests of His Majesty; and the transfer. ... shall operate in like manner as if the registered transferor ... were (subject to any entry to the contrary on the register) absolutely entitled to the registered lease for his own benefit." Subsections (2), (3) and (4) of the same section apply the provisions of subsection

55 [1924] 2 Ch. 19.

(1) with modifications to the case of registered dispositions for value of leaseholds registered with good leasehold, qualified or possessory title, the last-mentioned being the class of title with which we are here concerned. The modifications applicable where the title is possessory only are comparable to those applicable to freeholds registered with possessory title only, and relating as they do to the title of the first registered proprietor are not material in the present case.

The effect of these provisions for the present purpose would appear to be that if registered land had been transferred to a corporation not authorized to hold land, and the transfer had been completed by the registration of such corporation as proprietor of the land transferred, the transferee corporation could thereafter by a registered disposition for valuable consideration vest the land in the purchaser thereof free of the forfeiture which had in fact been incurred by reason of the transfer in mortmain to such corporation. But that is not this case. The forfeiture here in question was brought about by the registered disposition itself, by reason of the incapacity of the transferee, the plaintiff company, to hold land in mortmain, and we cannot construe the provisions of sections 20 and 23 of the Act as extending to any forfeiture so occasioned. Those provisions are designed to protect a purchasing transferee from defects in the transferor's title, such as a forfeiture, subsisting at the date of the transfer against the registered estate in the transferor's hands, and not to relieve such a transferee from a defect in the transferee's own title, such as a forfeiture arising on completion of the transfer by reason of the transferee's own lack of authority to hold land in mortmain. The transfer is, by section 23 (1) (to take the section directly in point here) made to "operate in like manner as if the registered transferor ... were (subject to any entry to the contrary in the register) absolutely entitled to the registered lease for his own benefit," and not as if the registered transferor were so entitled and the registered transferee, if in fact a corporation not authorized to hold land in mortmain, were authorized to do so.

In the course of the argument there was some discussion as to the point of time at which the forfeiture arose. It was suggested that the contract for the sale of the land by Dixon to the plaintiff company, if indeed there was any antecedent contract (as to which there was no evidence), or at all events the payment of the purchase-money against delivery of the executed transfer, constituted Dixon a trustee of the land for the plaintiff

company, and that this sufficed to work a forfeiture under the Act of 1888.

We find difficulty in accepting this proposition. It is not clear to us that a man who contracts to sell land to a corporation not authorized to hold land in mortmain, even though he receives the purchase-money, incurs or creates a forfeiture at any time before actual conveyance. The contract would not be specifically enforceable and, therefore, could hardly give rise to a constructive trust. If the vendor refused to complete, prima facie, the only remedy of the purchaser corporation would be to recover any purchase-money paid as money had and received to its use. We say nothing as to the effect of an express declaration of trust in favour of such a corporation, and are referring only to a contract of sale and purchase to be carried out by conveyance in the ordinary way. Moreover, in the present case, the transaction was a sale and purchase of registered land intended to be carried out and, in fact, carried out by means of a transfer completed by registration under the Act. We note that by section 22 (1) "A transfer of the registered estate in the land ... shall be completed by the registrar entering on the register the transferee as proprietor of the estate transferred, but until such entry is made the transferor shall be deemed to remain the proprietor of the registered estate ..." Accordingly, we think the better opinion is that there was no forfeiture here until the completion by registration of the transfer from Dixon to the plaintiff company. But if we are wrong in this, and if the contract for sale, or the receipt of the purchase-money, sufficed to work a forfeiture on the ground that Dixon thereby constituted himself a trustee for the plaintiff company, how does the case stand? On this assumption the position was that immediately before the registration of the transfer Dixon was a registered proprietor who had incurred or created a forfeiture, while the plaintiff company had no interest at all; for ex hypothesi the forfeiture worked contemporaneously with the arising of the trust, which in any case had no effect on the registered title. Dixon then effected a disposition for valuable consideration of the registered estate in the land to the plaintiff company, and by force of section 23 of the Act, that disposition when registered operated to vest the registered estate in the plaintiff company free of the forfeiture occasioned by the arising of the trust in its favour. But that same disposition when registered brought about a new forfeiture operating against the registered estate in the hands of the plaintiff company by reason of the plaintiff company's want of authority to hold land in

mortmain, and this forfeiture was not touched by the overreaching effect accorded to registered dispositions for value by section 23.

Accordingly, we are of opinion that the result is the same even if (contrary to our view) a forfeiture was incurred at any stage in the transaction earlier than the actual completion of the sale by registration of the plaintiff company as proprietor, and that the plaintiff company cannot escape the forfeiture consequent upon the registration of the disposition for value in its favour on the ground that there was an earlier forfeiture from which the land was freed under section 23 by the registration of such disposition. If this were not so the strange result would ensue that transfers for value of registered land to corporations not authorized to hold land in mortmain could always be made without giving rise to a forfeiture of the land in the hands of the transferee corporation.

For these reasons the fact that the present case concerns registered land does not in our opinion afford any valid ground for distinguishing the first Morelle case.⁵⁶ The express provisions of the Act relating to the effect of registration of a disposition for valuable consideration, that is to say (so far as leaseholds are concerned) the provisions of section 23, include no provision which can properly be construed as freeing the land from the forfeiture incurred by the registered transfer to the plaintiff company. Accordingly, by virtue of section 80 of the Act, such forfeiture took effect upon the registration of the transfer, just as it would have done on the execution and delivery of an assignment of unregistered leaseholds, and, as we are bound to hold following the first Morelle case,⁵⁶ took immediate and automatic effect without any act or proceeding on the part of the Crown to assert or establish it. This forfeiture being, as we have held, unaffected by the provisions of the Land Registration Act, it follows that it took effect without rectification of the register and was not suspended pending an order for rectification or contingent upon such an order being obtained.

A good deal of the argument was directed to the use of the word "deemed" in section 9, where the registration of a person as first proprietor of a leasehold interest is to be "deemed to vest" in such person possession of the interest described, and in section 23 where the registration of a disposition for valuable consideration of a registered leasehold interest is to be "deemed

56 [1955] 1 Q.B. 1.

to vest" in the transferee the estate transferred, another example being in section 69, where the registered proprietor of land is to be "deemed to have vested in him ... the legal estate ..." It was said on the one hand that the effect of "deeming" a man to have property vested in him is that he is to be treated as having it vested in him, whether in fact he has it vested in him or not. On the other hand, it was said that "deemed" means deemed for the purposes of the Act, and only so far as those purposes require, the relevant purposes here being the protection of third parties dealing with the registered proprietor for value and in good faith. Several authorities bearing upon this point were cited. We find it difficult to attach any great significance to the use of the word "deemed" in sections 9, 23 and 69 of the Act, as section 5 provides with respect to the first registered proprietor of a freehold estate that registration "shall vest in the person so registered an estate in fee simple ..." with no deeming about it; and again, section 20 provides with respect to a registered disposition for value of a freehold estate that the disposition when registered "shall ... confer," not "shall be deemed to confer," on the transferee an estate in fee simple or other legal estate appropriate to the transaction. It can hardly have been intended that the effect of the registration of the first proprietor of a leasehold interest, or the registration of a transfer for value of a leasehold interest, was to differ from the effect of like transactions in regard to freehold estate in any respect other than such as flows from the inherent differences between a freehold and a leasehold estate. There may perhaps have been technical conveyancing reasons for these variations in language. At all events we cannot extract from them anything of assistance in the determination of the present case, which, to our mind, turns simply upon the absence in section 23 of any express provision to oust the saving of the Crown's right of forfeiture contained in section 80.

Before parting with this case we should refer to a point as to the form of the transfer to which Mr. Gardiner called our attention. Rule 121 of the Land Registration Rules, 1925, provides by sub-paragraph (1) as follows: "A transfer of land to an incorporated company or other corporation, sole or aggregate, shall be made by an instrument in form 35, and, save as mentioned in this rule, shall refer to the licence in mortmain or statute enabling the corporation to acquire or hold the land." Form 35 is in the following terms, after the heading: "Pursuant to a licence ...", "I, A.B., of etc. [ the proprietor ] hereby

transfer to (blank) [ fill in the corporate name of the transferee ], all the land [ etc.,...]" as in the earlier form 19 or 20. Then there is a note: "If the licence or statute contains any limit to the extent of land which may be conveyed or held, or any provisions as to the purposes for which it may be used, add at the end of the form: 'And it is hereby declared that the land already held by the transferees under such licence (or Act), together with the land hereby transferred, does not exceed (blank) acres (or that no land other than that hereby transferred is held by the transferees), and that the present transfer is for the purposes of [ fill in the purposes for which the land is to be used ].'"

Rule 121 was not followed in the present case, and the transaction was carried out by the common form of transfer, which was accepted for registration, although it was apparent from the description of the plaintiff company as having its registered office at 8, Upper O'Connell Street, Dublin, Eire, that it was a foreign corporation. If rule 121 had been followed the plaintiff company would never have been registered as proprietors. The reason why rule 121 was not followed appears from the view expressed in this footnote to the rule contained in Brickdale and Stewart-Wallace on the Land Registration Act, 1925, 3rd ed., at p. 434 [4th ed. (1939), at p. 380]. The note is: "Leasehold land is not within the Mortmain Acts unless the lease is virtually perpetual, and leases for twenty, forty, and even ninety-nine years have been expressly held to be exempt (see Tudor's Charitable Trusts, [5th ed. (1929), p. 415; 4th ed. (1906), p. 429], and, ibid., the note to section 1 of the Mortmain Act, 1888)."

That being the view of the law on which the registrar, no doubt on competent legal advice, was accustomed to act, it appeared unnecessary to insist on the use of form 35 on a transfer of short leaseholds to a corporation, as that form only differs from the common one in its references to the licence in mortmain, which would be inappropriate on the view that short leaseholds were not within the Mortmain Acts. That view has now been shown by the first Morelle case⁵⁷ to have been erroneous, and no doubt the practice of the Land Registry will be altered accordingly.

It was suggested that this departure from the rules might have invalidated the transfer in the present case, but the point was not pressed, and we are satisfied that the transfer was not

57 [1955] 1 Q.B. 1.

so invalidated. The rule-making power is conferred by section 141 (1) of the Act, which empowers the Lord Chancellor with the advice and assistance of the Rule Committee therein mentioned to make general rules (inter alia): "(ii) For prescribing the forms to be observed, the precautions to be taken, the instruments to be used, the notices to be given, and the evidence to be adduced in all proceedings before the registrar or in connexion with registration ...", and by subsection (2) any rules made in pursuance of that section are to be of the same force as if enacted in the Act.

Accordingly, if the rules categorically enjoined that a particular form and none other should invariably be used for transactions of a particular kind the use of a different form for a transaction of that kind might be held to invalidate the transaction. But rule 74 provides: "The forms in the schedule hereto shall be used in all matters to which they refer, or are capable of being applied or adapted, with such alterations and additions, if any, as are necessary or desired and the registrar allows." Rule 123, subrule (1) provides: "A transfer of land under the last two rules shall not be registered until the registrar is satisfied that such transfer is in accordance with the law relating to mortmain or charitable uses," and rule 322, subrule (1) provides: "The registrar, if he so thinks fit, may, in any particular case, extend the time limited, or relax the regulations made by general rules, for any purpose; and may at any time adjourn any proceeding, and make any new appointment."

The registrar is thus given a wide discretion as to the forms to be used, and his discretion extends to authorizing a departure from the general rules if satisfied that he can properly do so. It follows that, although the present transaction was completed otherwise than in accordance with rule 121, owing to the adoption in the registry of a view as to the law of mortmain now held to be erroneous, the acceptance for registration of the form of transfer used, such acceptance being in law the act of the registrar, must be taken as conclusive of its sufficiency in point of form. The contrary view would lead to much difficulty and uncertainty in the administration of the Act, as a person dealing with the registered proprietor of land might find it necessary to go behind the facts of his registration and inquire into the sufficiency in point of form of the disposition on the strength of which such registration was

made. For the reasons we have stated we think this appeal should be dismissed.

Solicitors: S. A. Bailey & Co.; Barnett Janner & Davis; Treasury Solicitor.

E. D.