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By Article 2168 of the Civil Code, it is provided that as soon as the plans and books of reference for a registration division, (or for any ward in a city, Stat, of Quebec 1870) have been deposited with the Registrar, and notice has been given by proclamation of such deposit, the number given to a lot upon the plan and in the book of reference is the true description of such lot, and no other description will be deemed sufficient, and the registration of any deed not containing the necessary description by number does not affect the lot in question.
By Article 2172, within eighteen months after the proclamation, the registration of any real rights upon any lot of land within the division or ward so proclaimed must be renewed by means of the registry at Length, of a notice describing the property affected by the first registration by the number it bears on the official plans. By Article 2173, if such renewal be not affected, the real rights preserved by the first registration have no effect against other creditors and subsequent purchasers whose claims have been regularly registered.
The words "real rights" used in the Code (instead of hypotecs, as in the Statutes) is a general term understood to comprehend all rights, without exception, which can attach to immoveable property; therefore in pursuance of this Article (2173) any person acquiring since the date of the promulgation of the Code, l3t August, 1866, against an immoveable property or real estate a right of possession, usufruct, redemption, conventional or legal hypothec, or any other real right, is bound to re-register the same in the manner above referred to within the delay of eighteen months from the day fixed by the proclamation; otherwise he may lose his priority of claim, or even lose his real right altogether, against a subsequent purchaser or creditor who may have registered. Take the example of a creditor holding a mortgage. A owns a property worth $1,400, he gives a mortgage to B for $700 thereon, which is registered before the proclamation, and afterwards a second mortgage for a like amount to C, which is also registered before the proclamation. B neglects to re-register his mortgage during the eighteen months, while C conforms to the requirements of the law. C, the second mortgagee or creditor, has a right to claim preference, and should he bring the property to sheriff's sale, and the property be sold at less than its value, say $1,000, he will receive his $700, in full, and B will receive the balance after deauction of the costs. In confirmation of this, we refer to the judgment rendered lately in the Court of Appeals (Queen's Bench) in a case of Bourrassa, appellant, and McDonald, respondent (the property is situated in Lapraire where the term limited by proclamation had already expired). In this case Bourrassa who held a hypothec on a certain property renewed its registration before the eighteen months delay expired, and McDonald who held a bailleur defonds claim, did not, for the reason that during the eighteen months the property was in the hands of the Sheriff. His Honour Chief Justice Duval with the majority of the Court ruled that Bourrassa having registered within the time prescribed by law was entitled to rank by preference over McDonald. The fact that the property was under seizure could not deprive Bourrassa of the rights which the law gave him; the judgment of the Court therefore sustained his claim of priority, on the sole ground that he had re-registered while McDonald had not.
Many seem, nevertheless, to be in doubt whether the owner of a property, who was in actual possession before the Code, must register the deed or title conveying to him the ownership, and also whether such purchaser, who has registered his title, must renew such registration made before the Code came into force. It would seem to be necessary for every purchaser, since 1866, (August 1st) if we adhere strictly to the terms of Article 2098, which provides that all acts conveying ownership must be registered, or in default of such registration, the title of conveyance cannot be invoked against a third party who has purchased the same property from the same vendor for a valuable consideration, and whose title is registered, and that so long as the right of the purchaser has not been registered, all conveyances, transfers, hypothecs or real rights granted by him in respect of such immoveable, are without effect; and Article 2173, which provides that if the renewal be not effected, the real rights preserved by the first Registration have no effect against other creditors, and subsequent purchasers whose claims have been regularly registered. Let us suppose the case of a person who sells one and the same property to two separate purchasers at separate times, (or that the vendor's heir sold it to the second purchaser,) will not the latter purchaser, if he has regularly registered his title, and renewed its re-registration during the eighteen months' delay, be in a position to give a good title to any future purchaser?
I am inclined to think that he would, and, in fact, he should
be able to do so, after failing to discover any trace of contrary title upon a search against the particular number of the property on the official plans and books of reference during the period of eighteen months, and after finding the vendor's title duly reregistered; or. in other words, if the purchaser is secure against all mortgages, which are not re-registered, why should he not be secure against a presumed proprietor who has not conformed to the law, which was certainly intended to protect the purchaser, not only against mortgages, but also against claims of ownership as well as real rights of any other nature. With regard to purchasers before the Code, several gentlemen of high standing in the legal profession, with whom I have had occasion to discuss this point, are of opinion that purchasers, before the 1st of August, 1866, who took immediate and open possession of the real estate bought by them, not being then obliged to register their title, are not obliged either to register or re-register now; that purchasers before the above date who did not take open and immediate possession, such as purchasers of wild lands, who were bound to register in order to secure their title, are now bound to renew such'registration; and that all purchasers since 1st August, 1866, are bound to register and renew.
Many have already attended to the re-registration of their real rights, but there are, in all probability, a greater number who have hitherto neglected it, for the simple reason that they have not been sufficiently informed.
The notice (by proclamation in the Official Gazette) has been given for the following Counties and Wards, and the time for re-registration will be within the following dates:—
County of Laprairie time expired
County of Chambly time expired
St. Ann's Ward, Montreal, from 3rd January, 1870, to 3rd July, 1871 St. Antoine Ward," "1st Sept., 1870, to 1st March, 1872
St. Lawrence Ward," ■"" ""
West Ward, """ "»
Centre Ward, " "" ""
Eastward, ""31st Jan., 1871, to 31st July, 1872
Jacques Cartier Ward, Quebec,""
N. B.—The proclamation for the remaining wards of the City of Montreal is expected to issue within a short time ; the plans having-, in most cases, been already forwarded to the Crown Lands Department.
The following deeds, acts and real rights, are those of most usual and common occurrence, which are subject to registration, and in most instances to re-registration, if they have been registered before the period fixed by the proclamation. (Of course mortgages which are to be paid before the expiration of the eighteen months, need not be re-registered; to do so would be a useless expense.) Their enumeration may lead the reader to see at a glance what rights and titles he may need to reregister :—
All deeds giving a security on real estate, or encumbering real estate in any way.
All deeds conveying ownership in immoveable property, by sale, exchange, gift, &c, (within thirty days after their execution.)
The transmission of property by succession, and every con veyance by will (six months), (and three years for absentees.)
Judgments cancelling a registered title.
The privilege of a builder, thirty days after the acceptance of the work.
The privilege of copartitioners (thirty days after the deed of partition.)
Creditors claiming separation of property, preserve upon the estate of their deceased debtor against the creditors of the heirs, by registering the rights which they have against the succession, within six months after the death of the debtor.
Fiduciary substitutions, in respect of immoveables in deeds of gift, (thirty days.)
The legal hypothec of the wife on the immoveables of her husband, including the legal customary dower, according to Article 2116 of the Code.
Tutors to minors and curators to interdicted persons are bound to register without delay the hypothecs to which their real property is subject, under pain of punishment for misdemeanor, and of being liable for all damages. Married men who do not without delay register the hypothecs or incumbrances against their estate in favour of their wife, incur the same penalty. (The hypothec of minors and interdicted persons against their tutors and curators affect only such real property as is specified in the act of tutorship or in a notice to the registrar.)
Judgments and judicial acts of Civil Courts, when registered create hypothec from the date only of the registration of a notice specifying and describing the real property of the debtor upon which the creditor intends to exercise his hypothec.
Claims for accrued interest for over 5 years in cases of sale and of life rents, and over 2 years in other cases.
Every transfer of a mortgage or hypothecary claim immediately and specially before the signification of the transfer: (this provides against persons running the risk of being deceived by anterior transfers of which they were ignorant.)
The lease of an immoveable for a period exceeding one year cannot be invoked against a subsequent purchaser unless registered.
With the obligation of re-registration of all real rights and the obligation of specifying the property on which the mortgage, hypothec or real right is to take effect, we are protected against claims which could not be fully ascertained under the old system ;—And the facility of searching against any property which will be hereafter designated by a particular number, under which number all entries are to be made in the registrar's books, will prove to be very advantageous to those transacting in real estate by enabling them to ascertain more promptly and satisfactorily the incumbrances upon any property.
A registration law, however, can scarcely be enacted to provide satisfactorily for such cases as the following: viz., The case of a vendor selling the same property to two different purchasers. (In this case the first registered deed takes preference.)
The case of a creditor who lends to a tutor when the property is affected by the legal hypothec of the minor. He has no means of ascertaining the amount for which the tutor may be indebted for the balance of the tutorship account, reliquat de compte if the account has not yet been rendered, the tutor's administration not being a public matter. (In this case security should be obtained from a vendor whose property is thus affected.)
The present system of re-registration of real rights is remarkable for its simplicity. It is however a matter of regret that the Legislature has not deemed it advisable to compel the registration of real rights such as Customary Dower and other matrimonial right, which were created prior to 1860 and may affect immoveables at the present time.
Registrars are bound to keep an Index for the number of each lot, and under such number is made every entry respecting such lot, A person wishing to ascertain what real rights affect the