Drake v Templeton [1913] HCA 14; (1913) 16 CLR 153 (14 March 1913)

HIGH COURT OF AUSTRALIA

Drake Appellant; and Templeton (Registrar of Titles) Respondent.

H C of A

On appeal from the Supreme Court of Victoria.

14 March 1913

Griffith C.J., Barton, Isaacs and Gavan Duffy JJ.

Schutt, for the appellant.

Davis, for the respondent.

Schutt, in reply.

Griffith C.J.

In my opinion this case is governed by the two cases we have already decided, Perpetual Executors and Trustees Association of Australia Ltd. v. Hosken[1] and Mahony v. Hosken[2]. In those cases it was laid down as plainly as we could lay it down, that the object of the Transfer of Land Act was not to obstruct but to facilitate business, and that the Registrar is not justified in refusing to register an instrument merely because it does not literally comply with the precise form prescribed for such instruments, provided that any variation from the form does not affect the substance. The Act itself says so in the plainest language.

The objection taken in the present case is this:—The document is a mortgage of the kind commonly called a contributory mortgage. The two mortgagees contributed the mortgage money, £700, between them in unequal proportions, and on the face of the mortgage that fact is stated. It is true that it is stated in an inartificial manner. It might have been stated by inserting after the words "in consideration of the sum of £700 this day lent to me by" the two mortgagees, the words "in the respective proportions of £475 and £225." That would have been one way. Instead of that, it is put in as an addendum to the first proviso. There is no possible doubt as to the meaning of the words, and they mean the same thing whether they are put in in one place or the other. The effect of them is that it is a mortgage to two mortgagees as several owners, not as joint owners either at law or in equity.

It is said that that is embarrassing. Whom can it embarrass? It is suggested that the Commissioner of Titles cannot understand the document. It is not complimentary to his intelligence to say that he cannot understand it. I assume that he can, or, at all events, that he can get advice to enable him to understand it. Then, how can dealings with the land be affected? There can be no dealing with the land, so long as both mortgagees are alive, without the signatures of both. If they seek to foreclose, both must join in the application. If they seek to exercise the power of sale, both must join in the sale. If they wish to give a release on payment, both must join in the release. No doubt, therefore, can arise until one of the mortgagees dies. Sec. 229 of the Transfer of Land Act 1890 provides that when there are two or more mortgagees and one of them dies, the survivor or survivors may apply to be registered as sole owner or owners, but only in the event of the mortgage being one "owned on a joint account in equity." The fact that the statement objected to is contained on the face of the mortgage would prevent any such application being made in this case. So that no embarrassment is caused to the Commissioner in that respect. Before any alteration can be made in the register on the death of one of the mortgagees, the representatives of the deceased mortgagee will have to have notice. That is all. How can anybody be embarrassed by any of those things?

Then it is said that the public may be embarrassed if they do not understand the document, and so will fail to obtain information about someone else's business with which they have no concern. The argument answers itself.

In my opinion all the arguments put forward on behalf of the Registrar are quite untenable.

One or two other points were taken to which I do not think it necessary to refer. The learned Judge from whom this appeal is brought did not express an opinion in any way in conflict with anything I have said. He supported the Commissioner on the ground only that the statement as to joint contribution was made in an objectionable form, and thought that it was something extraneous woven into the fabric of the mortgage in a manner which justified the Commissioner in refusing registration. I do not think it is any concern of the Commissioner to watch over the rights of the mortgagor and mortgagees. If it is the effect of the language used that the mortgagor agrees to treat the mortgage as a contributory mortgage, that agreement is quite immaterial. But, as a matter of construction, I do not think that he agrees to anything of the kind. It is, indeed, quite immaterial whether he does or not, since if the question arose his equitable obligation would be the same whether he formally agreed to be bound by it or was bound by having notice of it.

In my opinion the appeal should be allowed.

Barton J.

I am entirely of the same opinion, and I am equally unable to distinguish the case from the other two cases in which, the Registrar having made similar objections, the Court ordered him to register.

Isaacs J.

I also think that the appeal should be allowed. There were some questions raised which it is not necessary now to decide—questions of great interest and some little difficulty which may have to be considered at a future time. One of them is as to the necessary parties, whatever the equities may be, who must join in the release of a mortgage. But on the document before us the matter can be resolved very simply. The learned primary Judge thought, as I understand, that the mortgage, apart from the portion of the first proviso which is objected to, was to be considered as a joint mortgage, and that the portion objected to sought to modify the mortgage so construed and to do so in an objectionable way. He said that he was not considering whether, if at the foot of the mortgage the mortgagees had chosen to say that, as between themselves, they held the mortgage in specific shares, setting out the proportions, the Commissioner could have refused to register the mortgage containing that statement. But he thought that from the position of the portion objected to, as well as from its words, it had been woven into the fabric of the mortgage in a manner which made the whole document substantially not what it would otherwise have been. I think that that mode of approaching the matter has led to error. When the document is looked at as a whole, it does not amount to a joint mortgage in the sense to which I have referred. It is a mistake to construe a document apart from any given portion of it first and then to see what change has been made by that portion. The meaning of each and every part of the document must be ascertained by reference to the whole document. When this particular document is looked at as a whole, it is found that nowhere is it stated expressly that the advance is a joint advance. There are words which are capable of that implication if nothing more appeared, but, when these particular words are put in defining the several interests of the mortgagees, then that implication is impossible because the parties have expressly stated what they mean.

In Keightley v. Watson[3] Parke B. said:—"The rule that covenants are to be construed according to the interest of the parties, is a rule of construction merely, and it cannot be supposed that such a rule was ever laid down as could prevent parties, whatever words they might use, from covenanting in a different manner. It is impossible to say that parties may not, if they please, use joint words, so as to express a joint covenant, and thereby to exclude a several covenant, and that because a covenant may relate to several interests, it is therefore necessarily not to be construed as a joint covenant. If there be words capable of two constructions, we must look to the interest of the parties which they intended to protect, and construe the words according to that interest." That is exactly the position here upon the two provisions I have indicated. If that be so, there is no extraneous provision woven into the fabric of the mortgage with another meaning.

Then comes another question raised by Mr. Davis: Can a mortgage of that character, namely, a mortgage in which there are several interests of mortgagees, be registered? The learned Judge of first instance does not say that such a mortgage is incapable of registration, and I do not know of any authority bearing out that contention. If that had been the opinion of that Judge, who is specially learned in this branch of the law, I think he would have said so. However that may be, I can see nothing in the Transfer of Land Act to prevent the registration of such a mortgage, because the Act does not set out to limit the class of mortgages which may be made and registered, but it prescribes the form which they are to assume, and the land to which they are to refer. The form of this particular mortgage, does not, so far as I can see, depart from the form in the Schedule, and therefore, in my opinion, the Registrar was wrong in not registering the document.

Gavan Duffy J.

Had the matter come before me in the first instance, as it did before àBeckett J., I should probably have taken the same view as he did. On consideration, and after having had the benefit of argument, I think that that view is not correct, and I have come to the same conclusion as the other members of the Court. I adopt the judgment of my brother Isaacs as expressing the reasons for my opinion.

Appeal allowed. Order appealed from discharged. Order to Registrar to register mortgage. Respondent to pay costs of application and of appeal.

Solicitors, for the appellant, Maddock, Jamieson & Lonie.

Solicitor, for the respondent, Guinness, Crown Solicitor for Victoria.