7

A.—4

The cases of Matai v. Assets Company, 6 N.Z. L.R., S.C, 359; In re Aldridge, 15 N.Z. L.R., 361; and Hami Tikitiki v. Assets Company, 18 N.Z. L.R., 226, k, were decided and, in their Lordships' opinion, rightly decided on this principle. Having regard to the Land Transfer Acts and the Native Land Acts their Lordships are of opinion that it was not the duty of a District Land Registrar to examine into the validity of a Crown grant, nor to inquire how a Governor's warrant had been obtained, nor to inquire into the proceedings in the Native Land Court culminating in an order of freehold title. The Acts show that these documents may be assumed to have been properly obtained and may be.safely acted upon by the District Land Registrars and by other persons acting in good faith. The difference between want of jurisdiction over persons and subject-matter and wrong procedure in a Court having such jurisdiction will be found discussed in Pemberton v. Hughes, L.R., 1899, 1 Ch., 781, where the Court of Appeal in England had to consider the validity of a divorce in Florida alleged to be coram non judice and void by reason of errors in procedure. The Court of Appeal held that such matters ought not to be regarded by a foreign tribunal called upon to recognise the Florida decree. It is said that Gibbs v. Messer, 1891, A.C, 248, shows that registered titles may not be conclusive even in favour of a bond fide registered purchaser from a registered owner. The case no doubt does show that such a case may occur. The case was one of fraud and forgery. A. transfer from a registered owner to a non-existent person had been fraudulently procured and registered, and a fictitious transfer from that fictitious transferee to a bond fide mortgagee was afterwards registered. In a suit by the first registered owner against the Registrar, the registered mortgagee and the perpetrator of the fraud, the name of the first registered owner was ordered to be restored to the register by this Board. The Supreme Court of Victoria had held that the true owner had lost her property but was entitled to damages out of the compensation fund. The appeal was by the Registrar from this decision. This Board held that as there was, in fact, neither any transferee from the first registered owner, nor any transferor to the registered mortgagee, there was nothing to deprive the first registered owner of her property; nothing, in fact, on which the subsequent registrations could operate, and those registrations were accordingly ordered to be cancelled. Lord Watson, in his observations on the protection given to bond fide purchasers, points out that a bond fide purchaser from a registered owner is in a better position than a first registered owner whose title may be impeached for fraud. But there is nothing in his judgment in favour of the view that an original registered owner claiming through a real person does not get a good title against every one except in the cases specially mentioned in the Act, fraud being one of them. Then it is contended that a registered owner may hold as trustee and be compelled to execute the trusts subject to which he holds. This is true, for although trusts are kept off the register a registered owner may not be beneficially entitled to the lands registered in his name. But if the alleged cestui que trust 'is a rival claimant, who can prove no trust apart from his own alleged ownership, it is plain that to treat him as a cestui que trust is to destroy all benefit from registration. Here the plaintiffs set up an adverse title and nothing else; and to hold in their favour that there is any resulting or other trust entitling them to the property is, in their Lordships' opinion, to do the very thing which registration is designed'to prevent. Their Lordships cannot give effect to the ingenious arguments addressed to them on this point. Nor can they adopt the case of the Solicitor-General v. Mere Tim, 17 N.Z. L.R., 773, as an authority which ought to be followed in these appeals. The conclusions thus arrived at really dispose of all three appeals, except so far as they are based on fraud. But before dealing with the charges of fraud their Lordships will shortly allude to the special grounds relied upon in the second and third appeals. In Waingaromia No. 2 the liquidators of the Glasgow Bank, who claimed through Cooper, were registered as owners on the provisional register, and in August, 1882, they obtained a certificate of title from the District Land Registrar By an Imperial statute, "The City of Glasgow Bank (Liquidation) Act, 1882" all the assets of the Glasgow Bank were vested in the Assets Company on their ob- i taming a discharge from the liquidators for the purchase-money and on the .record- ' ing of such discharge as mentioned in the Act. The purchase-money was to be paid i on or before the Ist October, 1882, but it was not in fact all paid before December, 1882, and the statutory vesting did not take effect until then. On 15th August' 1883, the Glasgow Bank Act was produced to the District Land Registrar, and he indorsed on the liquidators' certificate of title a transfer to the Assets Company and registered it. The Act vesting the assets in the company vested them " subject to £ the existing charges, debts, engagements, and liabilities specifically affecting the same in the hands of the bank or the liquidators," and the Court below has held that these words had the effect of overriding or controlling the Land Transfer Acts of the colony. Their Lordships are unable- to concur in this view. There is nothing in the Glasgow Bank Act to show that interference with the colonial Land Acts was ever contemplated, still less that those Acts were to be overridden. The general vesting clause, when applied to lands in the colony, must be read so as to work in harmony with the colonial Acts, and in effect as conferring upon the Assets Company

> See also 17 N.Z. , L.R., p. 593. 3 ) 1 i 1

45 and 46 Vict., o. olii., sections 3 and 4, and Seoond Schedule.

Section 4.