Экзамен зачет учебный год 2023 / Sparkes, A New Land Law

Conversely a substitute compelled to make payments under a relevant lease (new or old) can insist on taking an overriding lease326 which sits between the lease guaranteed and the landlord.

K. REIMBURSEMENT AND INDEMNITY

[27.61] If a substitute is targeted by the landlord, he is entitled to reimbursement from the person with ultimate liability,327 that is the current tenant.

Figure 27-2 A claim to reimbursement

1.Restitutionary claims for reimbursement

[27.62] Where there is no direct contractual relationship between plaintiff and defendant328 there is a “quasi-contractual” indemnity, better described today as a freestanding obligation in restitution. The current tenant is unjustly enriched at the expense of the surety and is obliged to reimburse him. The factor which makes the enrichment unjust is legal compulsion.329 As Cockburn CJ stated in Moule v. Garrett:

“where one person is compelled to pay damages to the legal default of another, he is entitled to recover from the person by whose default the damage was occasioned for the sum so paid.”330

So an original tenant required to pay damages for disrepair was entitled to obtain an indemnity direct from the current tenant, despite intermediate assignments.

The payment must discharge a common liability331 for example an original tenant caught by privity of contract,332 between tenants of parts,333 against an intermediate

326LT (Covenants) A 1995 ss 19–20; SI 1995/3154.

327P Sparkes “Reimbursement of Tenant Substitutes” ch 16 in Jackson and Wilde; Re Downer Enterprises [1974] 1 WLR 1460, 1470D, Pennycuick V-C; Kumar v. Dunning [1989] QB 193, 201, BrowneWilkinson V-C; Becton Dickinson UK v. Zwebner [1989] QB 208, McNeill J.

328So exclusion of a contractual indemnity is irrelevant: Re Healing Research Trustee Co [1992] 2 All ER 481, Harman J.

329The plaintiff must not officiously expose himself to liability, but this is scarcely likely of a surety.

330(1872) LR 7 Exch 101, affirming (1870) LR 5 Exch 132; Exall v. Partridge (1799) 8 Term Rep 308, 101 ER 1405; Bonner v. Tottenham & Edmonton PIBS [1899] 1 QB 161, 172–173, Vaughan Williams LJ.

331Duncan Fox & Co v. N & S Wales Bank (1860) 6 App Cas 1, 10, Selborne LC; Re Downer Enterprises

[1974] 1 WLR 1460, 1468, Pennycuick J; Civil Liability (Contribution) Act 1978; Royal Brompton Hospital NHS Trust v. Hammond (No 3) [2002] UKHL 14, [2002] 1 WLR 1397 (requirement for shared or common liability).

332Moule v. Garrett (1872) LR 7 Ex 101; Humble v. Langston (1841) 7 M & W 517, 151 ER 871.

333Whitham v. Bullock [1939] 2 KB 81, CA.

tenant for a breach occurring while he was tenant,334 and against an equitable assignee.335 A sub-tenant is not normally liable on the same obligation as the headtenant.336 In Selous Street Properties v. Oronel Fabrics337 action was also allowed (by both T0 and S0) against an intermediate assignee (T2), and against the surety of the current tenant (SC). These actions where the defendant does not have the ultimate liability are more contentious.

2.Contractual indemnity

[27.63] This is redundant for new leases since liability of a previous tenant cannot survive sale of a post-1995 lease and indemnity covenants are never required.338 Under pre-1996 leases, statute implied an indemnity covenant into every assignment for valuable consideration.339 Express indemnity covenants are essential in gifts of old leases and following transmissions on death.340

Contractual indemnity relies on a chain of indemnity. A whole sequence of actions is required, or rather one mammoth cause of action into which all parties are drawn by third party notices.341 The chain may break down because of insolvency or death. It is justice of a sort to require the tenant who sells to the one who becomes insolvent to carry the largest burden.342

A great improvement is made by the transitional provisions of the new legislation343 where the transfer of a pre-1996 lease occurs after the 2002 Act commencement: covenants are implied for indemnity if the whole is transferred and to pay apportioned parts after a division, and they are now implied whether or not the transfer is for value. This is a major improvement.344

334Burnett v. Lynch (1826) 5 B & C 589, 108 ER 220; Walker v. Bartlee (1856) 18 CB 845, 139 ER 1004.

335Close v. Wilberforce (1838) 1 Beav 112, 48 ER 881; query whether this is logical.

336Bonner v. Tottenham & Edmonton PIBS [1899] 1 QB 161, CA. Contrast Electricity Supply Nominees

v.Thorn EMI Retail [1991] 2 EGLR 46, CA.

337[1984] 1 EGLR 50, 61–62, Hutchison J; C Whippman & C Green [1984] JBL 419; P McLoughlin [1984] Conv 443; Cale v. Assuidoman KPS (Harrow) [1996] BPIR 245; P Sparkes, “Reimbursement of Tenant Substitutes” ch 16 in Jackson and Wilde.

338LT (Covenants) A 1995 s 14; SI 1995/3153.

339LPA 1925 s 77(1)(c) (unregistered); LRA 1925 s 24(1)(b) (registered). This is true whether or not the covenant touches and concerns the land.

340Johnsey Estates v. Lewis & Manley (Engineering) (1987) 284 EG 1240, CA (consideration of £1 is value); Re Lawley [1911] 2 Ch 530.

341Baker v. Merckel [1960] 1 QB 656, CA (L sued T0, who brought in T1, who brought in T2).

342Warnford Investments v. Duckworth [1979] 1 Ch 127, 140–141, Megarry V-C; RPH v. Mirror Group Newspapers (1992) 65 P & CR 252, Nicholls V-C; A Belcher [1995] Conv 199.

343LRA 2002 sch 12 para 20; Law Com 271 (2001), EN [819–820].

344Despite Current Law Statutes 2002, 9–111.

28

MORTGAGES AND MONEY CHARGES

Mortgages of registered land: legal; equitable. Mortgages of unregistered land: legal, equitable; protection by deposit of title deeds; land charges. Company charges. Statutory charges. Charging orders. Bankruptcy.

[28.01] No student requires any introduction to the concept of debt. What is borrowed has to be repaid with interest. A mortgage1 adds an extra refinement to this instrument of torture since what is owed is charged2 on the borrower’s land as security for repayment. Everybody knows that:

“a mortgage . . . is a personal contract for a debt secured by an estate”.3

The lender is protected on the borrower’s bankruptcy or the liquidation of a corporate borrower. A borrower who creates the mortgage of the land is, in old-fashioned technical language, the mortgagor, whereas the lender to whom the grant of the land is made as security is called the mortgagee.4

Land is immovable, a quality which enables a lender to leave the borrower in possession until repayment.5 If a borrower makes any default in repayment, a legal lender has the right to take possession and a statutory power of sale.6 Sale ensures that the first lender is able to vindicate his first claim to the value of the land out of the proceeds of sale, with successive lenders standing in a queue behind. What is left after all lenders are satisfied is called the equity, that is more properly the borrower’s equity of redemption.

Example. B’s house is worth £100,000. He borrowers £90,000 from L secured by a first mortgage. The residual value after repayment of the loan secured on the house is currently £10,000, but this “equity” will vary as interest accrues and repayments are made. If the house increases in value to £200,000 his equity is worth £110,000. Conversely if prices fall, he may owe more than the house is worth, the trap called negative equity.

1Chapelle’s LL (5th ed) ch 11; Cheshire & Burn (16th ed) ch 22; Dixon’s Principles (3rd ed) ch 10; Goo’s Sourcebook (3rd ed) ch 17; Gravells, LL – Text (2nd ed) ch 9; Grays’ Elements (3rd ed) ch 12, 539–554, 598–604; Maudsley & Burn LL – Cases (7th ed) ch 11; Megarry & Wade (6th ed) ch 19; L Smith, “Security” ch 5 in Birks’ Private Law; Smith’s Property Law (4th ed) ch 22; Thompson’s Modern LL ch 12.

2A charge is any mortgage, charge or lien which secures the payment of money on land: LRA 2002 s 132.

3Quarrell v. Beckford (1816) 1 Madd 269, 278, 56 ER 100, Plumer V-C.

4Parties: (1) borrower mortgagor, chargor (charge) or debtor (existing debt); (2) lender mortgagee, chargee (charge) or creditor (existing debt). According to Tristram Shandy it should be Jester and Jestee since “one raises a sum and other a laugh at your expense”.

5Personal chattels have to be pledged, that is handed over to the lender.

6See below [28].

Mortgages are redeemable: the borrower must be able to recover his land free of the mortgage by repaying what is owing.

“In equity, the estate is no more than a pledge or security for the debt.”7

There is the English mortgage in a nutshell. What more can there possibly be to say?

A. LEGAL MORTGAGES OF REGISTERED LAND

[28.02] A mortgage of registered land8 is made using a legal charge and is followed by substantive registration in the charges register of the title forming the security. Legal rights pass when the title is registered, after which the mortgage is described as a registered charge.9

1.Who can mortgage?

[28.03] Owners powers include the power to charge registered land at law with the payment of money. Legal mortgages of registered land can only be created by registered proprietors, or those entitled to be registered under a transfer, or the owner before first registration.10

2.Form of a legal charge

[28.04] A variety of means are available for mortgaging unregistered land,11 but the only permissible means of creating a legal mortgage of registered land is the charge by deed by way of legal mortgage.12 This, the legal charge, was an invention of Lord Birkenhead’s legislation.13 It blends the elegance and simplicity of the charge with the strong protective security of the legal mortgage. Solicitors took decades to warm to it, but it has now gained universal acceptance,14 and for registered land there is no room left for eccentricity since it is the only way to effect a legal mortgage.15 A deed is essential, at least until mortgages have to be created electronically.16 A true mortgage created a security against land by transferring an estate (that is an ownership right) in the land to the lender for the duration of the loan,17 but a legal charge achieves the same

7Quarrell v. Beckford (1816) 1 Madd 269, 278, 56 ER 100, Plumer V-C.

8LRA 2002 ss 48–57; Law Com 271 (2001), [7.28ff]; DLRR 2003 rr 102–115; DLRR CD ch 7. The old law is reviewed at Law Com 271 (2001), [7.2].

9LRA 2002 s 132(1).

10LRA 2002 s 24; rules may extend these categories; see also above at [8].

11The unregistered definition of mortgage is adopted: LRA 2002 s 132.

12LRA 2002 s 23(1).

13LPA 1925 ss 1(2)(c), 87; Law Com 271 (2001), [7.2]. Precursors were (1) registered charges under Land Transfer Act 1875; C Sweet (1912) 28 LQR 6, 15–17; A Underhill (1911) 27 LQR 173, 175–176; (2) statutory mortgages: Conveyancing Act 1881 s 26; LPA 1925 ss 117–120.

14G Battersby (1966) 110 SJ 818; WA Green (1974) 118 SJ 589, 590.

15LRA 2002 s 23; Law Com 271 (2001), [4.1–4.31].

16There will be power to require mortgages to be created electronically: LRA 2002 ss 91–93; Law Com 271 (2001), [7.6]; see above at [8].

17Benefitting rights are also transferred eg the right to make up an access road: Nationwide BS v. James Beauchamp [2001] EWCA Civ 275, [2001] 3 EGLR 6.

result by earmarking the land as a security for a loan without passing any estate. A form is now prescribed18 for the skeleton of the charge, which the parties are free to adapt and flesh out.

Title number XYZ 123 [Property]

LEGAL CHARGE Date: January 1st 2004.

Parties: (1) Borrower and (2) Lender

1.Borrower charges by way of legal mortgage the property with payment to Lender of the money secured by this charge.

2.[Payment covenants].

3.[Provision for interest].

4.[Repayment by the Borrower on a fixed date or by instalments]. Execution as a deed by [Borrower] in the presence of [Witness].

Figure 28-1 A legal charge

This will not impact, therefore, on the practice of institutional lenders to adopt a bald form of charge with financial details set out in a lengthy supplementary document incorporating standard lending conditions. These standard form charges should be lodged at the land registry.19

A legal charge is superior to a mortgage in the clarity of its meaning,20 in the ease with which successive mortgages can be created and in facilitating a single mortgage of freehold and leasehold land. Legal charges of leasehold land may be possible when an old-style mortgage would be a breach of a covenant against assignment.21

Unfortunately the rights of lenders are defined in a backward looking manner, a legal charge giving “the same protection, powers and remedies” as a traditional mortgage by demise.22 A purposive interpretation has held sway,23 so that the charge substitutes in all respects for the traditional mortgage by demise,24 giving the same remedies,25 an identical right to relief from forfeiture of a lease,26 and the same rights against occupiers and recipients of rents.27 Roll on the Law Commission, which pro-

18LRA 2002 s 25; DLRR 2003 r 58, sch 1; DLRR CD ch 7, [24–26]; LR Form CH1.

19No doubt the practice in LRR 1925 r 139 will continue.

20P Butt [1993] Conv 256 (one traditional mortgage had a mammoth sentence of 1299 words).

21G Battersby (1966) 110 SJ 818; Law Com 271 (2001), [7.2].

22LPA 1925 s 87(1).

23Cumberland Court (Brighton) v. Taylor [1964] Ch 29, 36; Weg Motors v. Hales [1962] Ch 49, 73, Evershed MR.

24Regent Oil Co v. Gregory (Hatch End) [1966] Ch 402, 431, Harman LJ, 435, Salmon LJ (so covenants run); Esso Petroleum v. Harpers (Stourport) Garage [1968] AC 269, 325G, Lord Pearce.

25Eg appointment of a receiver: Rhodes v. Allied Dunbar Pension Services [1989] 1 WLR 800, CA.

26Chelsea Estates Investment Trust Co v. Marche [1955] Ch 328; Church Commissioners for England v. Ve-Ri-Best Manufacturing Co [1957] 1 QB 238, Goddard CJ; Belgravia Insurance Co v. Meah [1964] 1 QB 436, CA; Hammersmith LBC v. Topshop Centres [1990] Ch 237.

27Grand Junction Co v. Bates [1954] 2 QB 160, Upjohn J obiter; LA Sheridan (1955) 18 MLR 301.

poses to remove all thought of nineteenth century law and to produce a uniform legal charge for land and all other forms of property.28

3.The mortgage until registration

[28.05] A mortgage generally comes into effect as soon as the document of charge is executed.29 It will not be uncommon for the mortgage document to be executed at a moment when the borrower is not the owner of the estate being mortgaged (for example because he is buying land the purchase of which is not yet completed). A valid mortgage is created as between the parties to it by a borrower who does not own the land, and this acquires full legal status against the land if he later acquires title. In First National Bank v. Thompson30 the mortgage was held to operate by estoppel on its execution between borrower and lender, and to bind the legal estate when the borrower received it, so as to be registrable. The borrower represented that he had legal capacity to mortgage, an estoppel prevented him from denying this, and that estoppel was fed on acquisition of the estate without any recital of title.31

4.A registration requirement

[28.06] Substantive registration is required when a registered proprietor grants a mortgage and also when a registered charge is transferred or is itself mortgaged. On the creation of a charge the obligation is to secure registration in the name of the lender as proprietor of the charge.32 An equitable mortgage arises. Only on completion of the registration against the estate33 does a mortgage take effect as a legal charge.34 Legal remedies flow from substantive registration so this is essential to confer full legal remedies, such as the power of sale.35 Full powers are given subject only to any restriction on the register.36

Documents which must be lodged are the mortgage, a copy, and the application form, and these must be accompanied by the fee.37 Entry in the charges register38 reveals the existence of the mortgage but not its amount. When the application is completed the lender formerly received a charge certificate, containing the original mortgage deed bound up within the cover of the charge certificate, but these certificates will no longer be issued in the run up to electronic conveyancing.

28 Law Com 204 (1991); at present this is in abeyance because of opposition from the Council of Mortgage Lenders.

29An escrow is possible but unlikely: Allied Irish Bank Group v. Hennelley Properties [2000] CLYB 4665,

CA.

30[1996] Ch 231, CA.

31The borrower acquires land subject to the mortgage and any other interests are deferred in priority to the mortgage: see above [20].

32LRA 2002 s 27(2)(f), sch 2 para 8.

33S 13(2), 59.

34LRA 2002 s 51.

35Grace Rymer Investments v. Waite [1958] Ch 831; ES Schwab & Co v. McCarthy (1975) 31 P & CR 196. Note, however, that a person entitled to be registered has power to exercise the owner’s powers: s 23(2); so the conventional wisdom on the 1925 legislation may no longer hold good.

36LRA 2002 s 52.

37DLRR 2003 rr 13, 20, 51–55, 58.

38DLRR 2003 r 9; Lever Finance v. Needleman’s Trustees [1956] 1 Ch 375, 382, Harman J.

PROPERTY REGISTER Title number XYZ 123.

All that freehold land known as 23 High Street shown on the filed plan.

PROPRIETORSHIP REGISTER January 1st 2003.

[Borrower] of 23 High Street.

CHARGES REGISTER

1.CHARGE dated January 1st 2003 to secure the monies therein mentioned.

2.PROPRIETOR Lender.

Figure 28-2 A register showing a mortgage

Registration guarantees the validity of the charge, and any later disposition by the proprietor will take effect subject to it.39 The borrower is secure against alteration of the register, before default by his occupation40 and afterwards if the lender has taken possession by the provision deeming the lender’s possession to transfer to the borrower.41 It does not appear that a lender has any protection when out of possession, possibly because monetary entitlement can be adequately compensated by a monetary indemnity.

There are special provisions about how to register a charge of part.42

5.Second and later mortgages

(1) Charge without consent

[28.07] The powers of a registered proprietor are free of any limitation unless reflected by an entry in the register. In fact it is common to impose a requirement when taking a first mortgage that the owner will not remortgage the land without the consent of the first lender, however much this practice is deprecated by second lenders. The Act is neutral, leaving it open to the first lender to impose a requirement that its consent be obtained to a second mortgage,43 but the second lender will only be bound by it if it is protected by a restriction in the register.44

(2) Nature of second mortgage

[28.08] Land registration mechanics facilitate the creation of a string of legal mortgages. A borrower who owns a freehold property subject to a first registered mortgage

39LRA 2002 s 30.

40Sch 4 paras 3(2), 6(2).

41S 131.

42DLRR 2003 r 73.

43Law Com 271 (2001), [7.22–7.28].

44LRA 2002 s 52.

proves title to a second lender by producing official copies of the register entries, which reveal the first mortgage. Lender 2 applies for registration of his mortgage, leading to entry of the second mortgage on the charges register, an entry of which lender 1 will be informed.45 The previous practice of issuing a second charge certificate is now discontinued.

(3) Priority

[28.09] Priority is determined by the order of entries on the Charges Register.46 Lender 1 can sell free of the second mortgage,47 whereas lender 2’s charge is subject to the paramount rights of the first lender. What could be simpler? Registration mechanics are vastly superior to unregistered mechanics, since the registrar sorts the order of mortgages. Priority should be shown in the charges register.48

6.Transfers of mortgages

[28.10] A registered charge is always transferable, after which the new lender takes the priority obtained by the original registration.49 The borrower is bound by the covenants in the mortgage,50 but he should be joined to gain his agreement to the amount of the debt.51 Institutional lenders often transfer an entire portfolio to a new lender,52 though in such cases it is awkward to join all the borrowers affected.

7.Sub-charges

[28.11] A sub-mortgage is a mortgage of the right to receive the loan.53 This must be in the prescribed form54 of a sub-charge and it must be registered in the charges register against the charge which is affected by it,55 after which the registered proprietor of the sub-charge has (by way of extension of the old law) the powers under the charge affected.56

45S 54.

46S 48; Law Com 271 (2001), [7.13]; Mortgage Corp v. Nationwide Credit Corp [1994] Ch 49, 53F, Dillon LJ; Lloyd v. Nationwide Anglia BS [1996] EGCS 80 (entries on same day). For the priority of applications

see above [8.41].

47LRA 2002 s 30; see below at [29.24].

48S 46; DLRR 2003 r 102.

49Registration requirements apply. It must be in the specified form: LRA 2002 s 52; DLRR 2003 r 115; LR Forms TR3, TR4 and AS2; and completed by registration in the name of the new lender: LRA 2002

s 27(3), sch 2 para 10. Registration requirements do not apply to dispositions by operation of law: LRA 2002 s 27(5).

50Regent Oil Co v. JA Gregory (Hatch End) [1966] Ch 402, CA.

51Borrowers beware, since this may capitalise interest. Costs of a transfer should not be charged to a borrower, unless in default: Re Radcliffe (1856) 22 Beav 201, 52 ER 1085.

52LR Form TR4; LR Practice Leaflet 24 (2000)

53LRA 2002 s 23(2)(b), 53, 132(1); Law Com 271 (2001), [7.16]; H Woodhouse (1948) 12 Conv (NS)

54LRA 2002 s 25.

55Ss 27(3), 59(3), sch 2 para 11.

56S 53; Law Com 271 (2001), [7.11].

B. EQUITABLE MORTGAGES OF REGISTERED LAND

1.Mortgages other than registered charges

[28.12] A mortgage of registered land can be created off the register. The object of doing this is to save the land registry fees inherent in any substantive registration, but the price that has to be paid is that the mortgage will be equitable and the lender will not have full legal remedies. This price might be accepted for a small loan that leaves a large equity – making the need to sell unlikely – or for borrowing that is expected to be short term. Given that registration requirements attach to a mortgage in the form of a registered charge57 it may be safer to revert to the historical form of equitable mortgage – a contract to create a legal mortgage – in which case it is important to comply with contract formalities; no mortgage is created by deposit of the land certificate.58

If enforcement does become necessary, the mortgage must be registered substantively, when, whatever its form, it will take effect as a legal charge.59

2.Priority

[28.13] Any mortgage off the register is equitable.60 Priority as between equitable interests off the register is determined on the principle of “first in time”. It follows that a risk inherent in any equitable mortgage is that no priority is secured over earlier mortgages:61 A has priority over a later mortgage B, even if B is protected on the register and A is not.62

3.Protection

[28.14] An equitable mortgage needs protection on the register to prevent its priority being destroyed by the substantive registration of a later legal mortgage.63 Protection is by way of a notice on the charges register.64

57LRA 1925 ss 25, 27. S 27 makes clear that the penalty for non-registration is loss of legal status, so an equitable mortgage could arise from keeping a legal mortgage off the register, but s 25 suggests that the transaction “only” has effect when in the legal form.

58See above [22.32], below [28.19].

59LRA 2002 s 51.

60Ss 25–27.

61This risk was much lower in the past if the lender secured possession of the land certificate. It may be too great a risk today.

62LRA 2002 s 28; see above [20.40].

63LRA 2002 s 29.

64See above [20.05].

C. LEGAL MORTGAGES OF UNREGISTERED LAND

1.Legal mortgages of unregistered land

[28.15] Most mortgages of unregistered land take the form of legal charges. There is no prescribed form, but the crucial thing is to use a deed showing an intention to charge the land.65

Protection is required for mortgages, as for any other money charge, either by deposit of the title deeds or by land charges registration.66

An occasional diehard may insist on using a true, traditional, mortgage. In contrast to the legal charge the security of the older form of mortgage consists of a transfer of an estate to the lender to hold until he is repaid. From the seventeenth century onwards67 it was possible to mortgage land leaving the borrower in possession, using the form of a conditional transfer of the legal estate. The lender acquired unwanted ownership of the legal estate during the life of the mortgage, while the borrower was unwontedly stripped of his legal estate. Second mortgages had to be equitable, and there was always the problem of remembering to re-transfer the estate when the first loan was repaid.68 Lord Birkenhead’s legislation solved these problems. It prohibited transfer of a legal estate in land,69 and instead required a mortgage to be by way of long legal lease of the property, traditionally called a “demise”.70 If freehold land was mortgaged after 1925, the length of the term adopted was always 3,000 years, long enough to pass all real value in the land to the lender.71 “Cesser on redemption” ensures that when the loan is repaid the mortgage demise becomes a “satisfied term” and disappears.72 Second mortgages require a reversionary lease.73 Leasehold land was sub-demised for a term traditionally ten days shorter than the lease being mortgaged.74

All this complexity explains why legal charges have triumphed. It is time to implement the Law Commission report75 which proposed complete abolition of true mortgages.76 A free standing definition of the rights of a lender under a legal charge is required, since otherwise it will always remain necessary to refer back to the old law.

65Sopher v. Mercer [1967] CLYB 2543 (document omitting words “by way of legal mortgage”).

66See below [28.21ff], [28.28ff].

67From the time of Glanville (died 1190) until the 17th century the lender had to take possession: JL Barton (1967) 83 LQR 229.

68Which was held on trust for the borrower: Re King decd [1962] 1 WLR 632, Buckley J.

69Old mortgages were converted: LPA 1925 sch 1 parts VII–VIII; conversion to a legal charge could occur by notice: s 87(2)–(3).

70Pre-1926 examples: Aldridge v. Duke (1679) Rep t Finch 439, 23 ER 239; Ex p Knott (1806) 11 Ves 609, 32 ER 1225; Hurst v. Hurst (1852) 16 Beav 372, 51 ER 822; Jones v. Rhind (1869) 17 WR 1091; Re Russell Road Purchase Monies Mortgage (1871) LR 12 Eq 78.

71LPA 1925 s 85 (purported conveyance by transfer).

72LPA 1925 ss 5, 116; this replaced the Satisfied Terms Act 1845.

73Entitling the first lender to possession against the second lender, but giving a better right than the borrower’s freehold estate; Re Moore & Hulm’s C (No 1) [1912] 2 Ch 105, Joyce J.

74LPA 1925 s 86 (attempted mortgage by assignment); Taylor v. London & County Banking Co [1901] 2 Ch 231, CA.

75Law Com 204 (1991), [2.17–2.19].

76As in registered land: LRA 2002 s 4(1)(g), (8), 13.