It is provided in the Manitoba, Alberta and Northwest Territories that no instrument shall be effectual to pass any interest in land or to render the land liable as security for the payment of money "as against any bona fide transferee" of the land until (unless) the instrument is registered in accordance with the statute (i), the Northwest Territories statute adding "except a leasehold estate not exceeding three years" (j). The principle that an unregistered instrument is inoperative (except to pass a leasehold interest for three years or for a less period) is also expressed in Saskatchewan, and Alberta without the limitation "as against any bona fide transferee," but the Saskatchewan statute adds "except as against the person making the same" (k).

(f) Independent Lumber Co. v. Bocz, 1911, 4 S.L.R. 103.

(g Man. s. 78.

(h) See chapter 8, The Registry Act, Sec. 79.

(i) Man. s. 91; Alta. s. 46. The references are to the statutes mentioned in Sec. 93. As to the general priority of the registered title, see Sec. 94.

(j) N.W.T. s. 70. Under Man. s. 78, Sask. s. 60, Alta. s. 43, and N.W.T. s. 73, a certificate of title is subject to any subsisting lease or agreement for a lease for a period not exceeding three years where there is actual occupation under the same.

It is also provided that no memorandum or entry shall be made upon a certificate of title or upon the duplicate thereof of any notice of trusts whether expressed, implied or constructive"; that the registrar shall treat any such notice as if there were no trust and the trustees therein named shall be deemed to be the absolute and beneficial owners of the land for the purposes of the statute (I).

It is further provided in Manitoba (m) as follows:

99. Except in the case of fraud on the part of such person, no person contracting or dealing with, or taking or proposing to take an instrument from, a registered owner shall be required or in any manner concerned to inquire into or ascertain the circumstances under, or the consideration for, which such owner or any previous owner is or was registered, or to see to the application of the purchase money or of any part thereof; nor shall any person be affected by notice, direct, implied or constructive, of any trust or unregistered interest, any rule of law or equity to the contrary notwithstanding; and the knowledge that any trust or unregistered interest is in exist-ence shall not of itself be imputed as a fraud.

Similar provisions are contained in the Saskatchewan, Alberta and Northwest Territories statutes (n).

The exception in the case of fraud made in the provisions just mentioned is supplemented by the provisions regarding the effect of a certificate of title, namely that the certificate is conclusive evidence of the title of the person named therein, subject to certain exceptions, "free from all other encumbrances, liens, estates or interests whatsoever except in case of fraud wherein he has participated or colluded" (o).

(k) Sask. s. 58; Alta. s. 41.

(I) Sask. s. 62; Alta. s. 47; N.W.T. s. 75; cf. Ont. s. 95. The corresponding Manitoba provision (s. 100) contains some exceptions, notably in the case of an executor, administrator or trustee under a will, the will in such case being deemed to be embodied in and to form part of the certificate of title (s. 76). See chapter 13, Persons entitled on Death of the Mortgagee, Sec. 125.

(m) Man. s. 99.

(n) Sask. s. 194; Alta. s. 135; N.W.T. s. 167.

The Ontario statute has no provision resembling s. 99 of the Manitoba statute, but it contains the following provision with regard to fraud (p):

121. Subject to the provisions of this Act, with respect to registered dispositions for valuable consideration (pp), any disposition of land or of a charge on land which, if unregistered, would be fraudulent and void shall, notwithstanding registration, be fraudulent and void in like manner.

Prima facie s. 99 of the Manitoba statute and the parallel provisions of the other statutes above mentioned are intended, except in the case of fraud, to exclude the application of the equitable doctrine that a person taking with notice, either actual or constructive, of an earlier equitable claim takes subject to it. Similar provisions are generally to be found in Torrens Title statutes and their meaning has frequently been the subject of judicial construction. They have indeed been the occasion of a struggle between legislatures and courts, the courts showing a marked tendency to attempt to escape from the letter of the statutes and to read into them the equitable doctrine as to the effect of actual notice.

The application of the doctrine of constructive notice is clearly excluded by the statutes (q), but, except as to mere constructive notice, J. E. Hogg submits that the legislative efforts to insist on the validity of registration in the face of notice should be considered as having failed (r). In coming to this conclusion the learned commentator on the Australian Torrens system relies upon the decision of the Privy Council in the case of Loke Yew v. Port Swettenham Rubber Co. (s), which he thinks has the effect of overruling a number of earlier Australian cases.

(o) Man. s. 79; Sask. s. 59; Alta. s. 42; N.W.T. s. 72. See Sec. 94, supra.

(p) Ont. s. 121.

(pp) As to the distnction drawn in the Ontario statute between a transferee for value and a voluntary transferee, see s. 45 of the statute quoted below.

(q) Assets Co. v. Mere Roihi, [1905] A.C. 176.

It is not, however, altogether certain that it was decided by the Privy Council in the case mentioned that taking with actual notice necessarily constitutes fraud. W. S. Scott (t) submits that the question whether taking with acual notice amounts to fraud or not is always a question of fact, a principle which involves the possible existence of a state of facts in which actual notice would not involve fraud, and that however difficult it may be to draw the line between "fraud importing grave moral blame" (u) and a disregard of notice not amounting to fraud, the distinction is a real one.