England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
THE COURT OF APPEAL
(CIVIL DIVISION)
(From: Mr. Justice Ungoed-Thomas)

		Royal Courts of Justice
		14th February 1968

LORD JUSTICE HARMAN: The judgment that Lord Justice Russell is about to read is the judgment of the Court.

LORD JUSTICE RUSSELL: An estate agent lived in Southport. His full names were Francis David Blackburn. In the conveyance and mortgage later mentioned he was so described. He carried on business in Southport as Frank D. Blackburn or Frank David Blackburn or Frank Blackburn and he was generally known as "Frank" and not as "Francis". He owned a freehold house, No. 34 Union Street, Southport, Lancs., which was conveyed to him on sale in December, 1957, by a Mrs. Allinson, and which he simultaneously mortgaged to a building society. On 10th January, 1958, he agreed in writing to sell the house to Mrs. Caine (the appellant) for £2,000 payable by instalments consisting of capital and interest payable over a period of 15 years with a deposit of £100. No solicitor acted; and the appellant received no copy of the agreement. The appellant moved into occupation and has lived there ever since, paying the instalments up to April, 1965. She has paid in all £700 and has saved the instalments due since then. No copy of the contract is available. It is not known in what version of his name Blackburn figured in the contract. It was not then registered as a land charge.

In August, 1959, Blackburn executed a puisne second mortgage of the property.

In December, 1959, the appellant for some reason visited a solicitor. He applied to register the contract as a Class C (iv) land charge - an estate contract - against the property 34 Union Street. In this application the name of the estate owner was given as "Surname - Blackburn: Christian names - Frank David". In that name the land charge was registered: nothing was said to Blackburn, who was not asked for a copy of the contract.

In December, 1962, Blackburn mortgaged the property to the Oak Co-operative Building Society (the respondent), paying off the existing first and second mortgages. He only paid two instalments in February and May, 1963, and in June, 1965, the respondent roused itself from torpor and started proceedings claiming payment, possession, foreclosure and sale, including a claim for possession against the appellant . Possession was ordered against her and she appeals.

The question is whether her estate contract is valid against the subsequent legal charge to the respondent as being effectively registered as an estate contract, or whether the use of the name "Frank" rather than "Francis" invalidates it. As a matter of law it has been held that the respondent's attempt to search the register before completing the mortgage was ineffective, and there is no respondent's notice on this point, so that the situation is as if there had been no attempt to search. The facts of the attempt are not however without interest. The application for an official search certificate was against the name "Francis Davis Blackburn". The application and the official certificate were in the following form so far as material. The application is Form L.C.ll: "We hereby apply for an Official Search to be made in the Alphabetical Index to the Registers kept under the above Acts for any subsisting entries therein under the undermentioned names, addresses and descriptions affecting land in the County of Lancs....place or district of Southport, known as 34 Union Street Southport"; and then, in the appropriate spaces, "Surname (in block letters) BLACKBURN. Christian names (in block letters) FRANCIS DAVIS. All addresses, title, trade or profession, to be set out below : 34 UNION STREET SOUTHPORT LANCS" -- which of course was not Blackburn's address. That was signed by the solicitor, Marcus Davis, on the 1st December, 1962.

The official certificate was in the following form: "It is hereby certified that the Official Search applied for has been made up to the closing of the Office on the date given on the official stamp below " -- which was the 3rd December, 1962. "The result is as follows": then a rubber stamp: "No subsisting entries clearly affected but the following entries which may or may not relate thereto appear": and there appears in the form "Name and address Blackburn, Francis David, 26 Crescent Road, Southport Lancs". There follow then details of the second puisne mortgage to which we have already referred, and a note saying "Please note the name is as given in the registration" — that being a reference to the difference between "David" and "Davis".

The whole system of registration of this class of land charge is initially dependent upon an index of names arranged in alphabetical order. The inspecting official might have given a nil certificate having regard to the name submitted: but clearly he noticed this other name in going through the relevant index and thought it appropriate to turn up the register and to refer to the other entry in the manner indicated. It was, of course, as we have said, the puisne second mortgage already referred to of which the respondent we are told was already aware. The official did not read further in the index: had he moved on a bit from "Blackburn, Francis David" - how far we know not - he would have reached "Blackburn, Frank David" and might have turned up the register and noticed that the property in question was subject to a land charge and would have referred to it also in the certificate. That would have blown the proposed transaction sky-high. It is we think clear that the official did not read further and that if the solicitor applying for search had not written "Davis" instead of "David" (his own name, incidentally, was Davis) the official certificate would not have noticed the appellant's estate contract, and the appellant would be out of court by virtue of section 17 (3) of the Land Charges Act, 1925. We say that the transaction would have been blown sky-high because even the respondent would not have ignored the patent defect in Blackburn's title. And we say even the respondent because it was made manifest that his application form was a pack of lies. It stated that he was proposing to buy 34 Union Street with vacant possession (intending to occupy the property) from Mrs. Allinson of that address, for £2,000 of which he was finding €500 from his own resources. But it was from Mrs. Allinson that he took the conveyance five years before: and that fact is stated in the mortgage on which the respondent relies: moreover the puisne mortgage by Blackburn was dated three years before, as appeared from the official search certificate. These discrepancies however the respondent and its then solicitor (also we are told Blackburn's solicitor) took in their stride.

The question therefore is whether there was a valid registration of the estate contract. If it was such, then under section 198 (l) of the Law of Property Act, 1925, the respondent had deemed actual notice of the estate contract and of its registration, whether or not it had on the facts actual or constructive notice of the appellant's rights. If it was not such, then under section 199 sub-section 1 paragraph (i) of the Law of Property Act, 1925, it is provided that the respondent should not be prejudicially affected by notice of the estate contract (even if it had it) and under section 13 (2) of the Land Charges Act, 1925, the estate contract was void as against the respondent.

Section 10 (l) of the Land Charges Act, 1925, provides that the following classes of charges on or obligations affecting land may be registered as land charges in the register, and Class C (iv) is that now relevant. Section 1 (l) requires the registrar to keep a register of land charges, and section 1 (2) requires that an alphabetical index in the prescribed form shall be kept of all entries in the register: this as indicated is an alphabetical index of the names of estate owners, and (see later) contains against the name inter alia a reference to the appropriate place in the register where particulars of land charges are noted. Section 10 (2) requires that "a land charge shall be registered in the name of the estate owner whose estate is intended to be affected": and this really is the crux of the present case. Section 13 (2)we have already mentioned. Section 16 enables anyone to search in any register or index for himself. Section 17 provides for an official search. A proposing purchaser (for example) may lodge a requisition for such search and thereupon the registrar shall "make the search required and shall issue a certificate setting forth the result thereof". Sub-section (3) provides that in favour of the intending purchaser as against the person interested under the instrument (here the estate contract) "the certificate, according to its tenor, shall be conclusive, affirmatively or negatively, as the case may be". Sub-section (4) provides that every such requisition shall be in writing "specifying the name against which he desires search to be made, or in relation to which he requires a certificate of result of search, and other sufficient particulars".

Section 19 authorises the Lord Chancellor to make general rules for carrying the Act into effect, and in particular "as to forms and contents of applications for registration....requisitions for and certificates of official searches and regulating the practice of the registry in connection therewith". The rules require applications for registration and searches to be made on, and to furnish the particulars set forth in, such forms as the registrar may determine. They also require the Register of Land Charges to contain "the name, address, and description of the estate owner whose estate is intended to be affected". As has been noticed, the form of application for registration requires the "Surname and Christian names" of the estate owner to be stated; and the form of requisition for a search requires the same particulars.

It might be convenient to set out the result of enquiry made by us as to the mechanics of the land charges register. The Alphabetical Index is contained in about 10,000 loose-leaf binders covering the whole country, arranged in alphabetical order. Special provision is made in the case of very common names such as Smith, in that this section is broken down by counties: and indeed there is even further such breakdown among for example John Smiths. Each binder contains about 250 names. Each entry in a binder besides the name (and we think address) indicates the class of charge, a reference number to the Register, the date of registration, the county and parish where the land is situate, and a short description of the land. On turning up the reference number in the Register itself the full details of the land charge are revealed. If a person wishes to search individually - without an official search - he attends, fills in the name against which he wishes to search, and a messenger brings him the appropriate binder or binders. We assume in the case of a common name such as is mentioned above he would also have to state the county in question. If a person searches personally, and misses a charge properly registered against the land in question, he does not of course have the benefit that is conferred by a nil official search certificate under section 17 (3).

The real problem is, what is meant by the name or the names of the estate owner in this legislation?

As a matter of theoretical approach it is obvious that it is intended or hoped by the legislation that every registered land charge will be safeguarded by registration because due diligence in search will reveal it: and correspondingly that every duly diligent search will reveal every registered land charge affecting the land to be purchased. It is realised that if an official search certificate is issued there may be a blunder for which some innocent person must suffer, and section 17 (3) provides, for example, that if a nil certificate is given the owner of the land charge suffers, however valid his registration. But it would be supposed that it would be intended to reduce error to a minimum. What then is meant by the requirement that the name - surname and Christian names - of the estate owner be given when requisitioning a search? People use different names at different times and for different purposes. But the matter now under consideration relates to two things: first, the investigation into the soundness of the paper title of a proposed vendor by a proposed purchaser: second, the attempt to prevent by registration the disposal by the owner of that paper title of the legal estate in a manner which will override the interest of the owner of the land charge.

In the case of a request for an official search, which of course takes place before completion after title examined, we can only think that the name or names referred to in the request should be that or those appearing on the title. A nil certificate here as to Francis Davis Blackburn would not have served to override the appellant's land charge had it been registered in the name Francis David Blackburn, though it could have been issued.

In most cases of contracts to purchase land nowadays many of the formalities precede exchange of contracts, and indeed those acting for the vendor would have used in the contract the name of the proposed vendor as appearing on the title. But of course there are other cases, such as the present, where the contract is much less formally arrived at, and the purchaser has no ready means of ascertaining the "title" names of the vendor. It would seem to be a great hardship on a purchaser registering in the name by which the vendor ordinarily passed that his registration should be entirely without operation, which is of course the submission of the respondent in this case. We have said earlier that if in this case the search had been against "Francis David Blackburn" and the certificate had referred to the fact that an estate contract was registered against "Frank David Blackburn" in respect of this property, the proposed mortgage transaction would have been blown sky-high. But if the respondent's contention is correct the registration would be no registration at all, and by force of sections 199 of the Law of Property Act, 1925, and 13 (2) of the Land Charges Act, 1925, the respondent could have carried through the mortgage ignoring the estate contract though in fact aware of its existence. Indeed, if the respondent had contracted to grant a mortgage loan subject to getting good title he would have been in breach of his contract by refusing to grant it.

We have come to the conclusion that the registration on this occasion ought not to be regarded as a nullity simply because the formal name of Blackburn was Francis and not Frank, and notwithstanding that Frank as a name is not merely an abbreviation or version of Francis but also a name in its own right, as are also for example Harry and Willie. We are not led to this conclusion by the fact that initials would seem to suffice for registration of a lis pendens (see Dunn v. Chapman 1920 2 Chancery 474) - at least under the then legislation and rules: for presumably a request for search under a full name having the same initials should throw up all entries under those initials. We take a broader view that so far as possible the system should be made to work in favour of those who seek to make use of it in a sensible and practical way. If a proposing purchaser here had requested a search in the correct full names he would have got a clean certificate and a clear title under section 17 (3) of the Land Charges Act, 1925, and would have suffered no harm from the fact that the registration was not in such names: and a person registering who is not in a position to satisfy himself what are the correct full names runs that risk. But if there be registration in what may be fairly described as a version of the full names of the vendor, albeit not a version which is bound to be discovered on a search in the correct full names, we would not hold it a nullity against someone who does not search at all, or who (as here) searches in the wrong name.

There is one objection to this approach, and that is that provision is made for personal as distinct from official search: a personal searcher in the full correct name in the present case would, it seems, not have encountered the registration in the present case: he would not have had the benefit of an official certificate under section 17 (3) and on the contrary would have been affected by a deemed actual notice of the estate contract under section 198 of the Law of Property Act, 1925. But we think that anyone who nowadays is foolish enough to search personally deserves what he gets: and if the aim of the statute is to arrive at a sensible working system that aim is better furthered by upholding a registration such as this than by protecting a personal searcher from his folly.

We do not feel we need shed any tears for the respondent, who could easily have protected itself by a proper official search but which owing to the error of its solicitor it never made. It could indeed have taken the precaution of investigating the discrepancy between the proposed mortgage and the application which Mr. Blackburn filled in for it, to which we have already drawn attention; or it could without great trouble have caused somebody to visit the property in question, when they would have found the appellant living there. We allow the appeal.

(Appeal allowed with costs here and below. Declaration and order for possession discharged: in lieu thereof, declare registration effective. Leave to appeal to House of Lords refused)