1886. Re ELLIOT. Innes J. these words, the claimants under a prior mortgage, whether legal or equitable, if not registered, must prevail against a title acquired under a sale by the sheriff. Section 111 manifestly marks a distinction between a transfer taken or title derived from the registered proprietor and a transfer from other persons. Section 75 gives the official assignee of a registered proprietor the right to be registered as the proprietor. In both of these cases the maxim expressio unius exclusio alterius applies. When we find that the sheriff, selling under a writ of fi. fa., is not mentioned in these sections, but other persons are mentioned, it seems that it was not intended that the sheriff should have a larger estate than the debtor. The case has been fully, and, I may be permitted to say, ably argued. While concurring with his Honour, I desire to express my entire concurrence with what his Honour, Mr. Justice Faucett, says in Coleman v. De Lissa in page 111-"The interest which the sheriff can sell is still, or it was before, the beneficial interest that was in the registered owner at the time of the entry or of the sheriff's sale." It comes back to what is stated in Wickham V. New Brunswick and Canada Railway Company (3) in the headnote (p. 64):"That as the judgment creditors under an execution take precisely that which and no more than the debtor possesses in the property seized, the sale being a sale by the law, and not by the Company, such judgment creditors took the land, subject to any incumbrances, legal or equitable, that they were subject to in the hands of the Company." Land sold by the sheriff is bound by all the equities attaching to it at the time of the sale. A clear distinction is drawn between the estate of a judgment creditor and the estate which the registered proprietor or anyone taking from him has. This distinction is clearly pointed out in the case which I have just referred to. There is still this infirmity attaching to titles acquired by purchase at a sheriff's sale, and the infirmity is not got rid of by the Real Property Act. Perhaps it may have been intended that by the Act registration was the one important thing which in all cases was to regulate priorities; but the framers of that measure have not gone so far as to express such an intention. For these reasons I concur in thinking that the application must be dismissed. Application dismissed with costs. 1886. Re ELLIOT. Innes J. Attorney for the applicant: Newell. Attorneys for the caveators: Macnamara & Norton. REGINA v. THE REDHEAD COAL MINING COMPANY. Scire facias to repeal grant—Jurisdiction-Section 137 of Crown Lands Act of 1884 (48 Vic. No. 18) retrospective-Corporation cannot make a mineral con ditional purchase. Section 137 of Crown Lands Act of 1884 (48 Vic. No. 18), which enacts to every grant" issued under this Act or any Act hereby repealed shall be deemed to be a record of the Supreme Court," is retrospective, and applies to grants issued before the passing of that Act. And, therefore, scire facias will lie to repeal any such grant. A corporation cannot make a valid conditional purchase, under section 19 of Crown Lands Alienation Act of 1861 (25 Vic. No. 1), of land for the purpose of mining. The word "person " in section 13 of that Act does not include a corporation. SCIRE FACIAS. Motion to make absolute a rule nisi to quash a writ of scire facias. On 19th May, 1886, the following writ of scire facias, directed to the sheriff or his deputy, was issued :-"Whereas, we lately, with the advice of our Executive Council of our said colony-by our deed of grant under our seal of the said colony, bearing date at Sydney, the 24th January, in the forty-fourth year of our reign, and recorded and enrolled in the register book, volume 528, folio 120, in the office of our RegistrarGeneral for the said colony, at Sydney in the said colony, the 7th of April, 1881, reciting that whereas the said Redhead Coal Mining Company, Limited, had in conformity with the provisions of the Crown Lands Alienation Act of 1861, condition Aug. 16, 17. Martin C.J. 1886. REGINA v. THE COAL ally selected, for the purpose of mining other than gold mining, the lands thereinafter described, and had duly performed and fulfilled all and every the conditions upon the performance and REDHEAD fulfilment of which they were entitled to become the purchasers MINING Co. of the fee simple of the said lands, and to have a grant thereof made to them without reservation of minerals other than gold upon payment for the said lands at and after the rate of 21. per acre-Did thereby, in consideration of the premises in our said deed of grant mentioned, and of the sum of 640l. well and truly paid into our Colonial Treasury of our said colony, before these presents issued, grant unto the said Redhead Coal Mining Company, Limited, their successors and assignees, subject to several and respective reservations thereinafter mentioned All that piece or parcel of land in our said colony, containing by admeasurement 320 acres, be the same more or less, situated in the county of Northumberland and parish of Kahibah, portion 140, and thereinafter more fully described as by our said deed of grant recorded and enrolled as aforesaid, amongst other things, more fully appears And whereas we are given to understand that the said Redhead Coal Mining Company, Limited, was a corporation and not a person within the meaning of the Crown Lands Alienation Act of 1861, at or before the time when the said Redhead Coal Mining Company, Limited, purported to conditionally select for the purpose of mining other than gold mining in conformity with the provisions of the Crown Lands Alienation Act of 1861, the lands in our said deed of grant mentioned and described; and by reason thereof could not and did not in conformity with the provisions of the said Act conditionally select the said lands for the purpose of mining other than gold mining And, further, that the said Redhead Coal Mining Company, Limited, did on the 18th November, 1875, and in contravention of the said Act of 1875, on one and the same day apply to conditionally purchase for the purpose of mining other than gold mining the land in the said deed of grant mentioned and described, and also to conditionally purchase certain other separate and distinct selections for the purpose of mining other than gold mining of other Crown lands, all of the said lands being then and before that time open and 1886. REGINA v. THE REDHEAD COAL available under the said Acts for selection for the purpose of mining other than gold mining, and by reason thereof could not and did not in conformity with the provisions of the said Act conditionally select for the purpose of mining other than gold mining the lands in our said deed mentioned and described MINING Co. And, further, that the said Redhead Coal Mining Company, Limited, did on the day and year last mentioned, in contravention of the provisions of the said Crown Lands Alienation Act of 1861 and of its amending Act of 1875, at one and the same time apply to conditionally purchase for the purpose of mining other than gold mining the lands in our said deed of grant mentioned and described, being of the area of 320 acres, and also to conditionally purchase certain other separate and distinct selections for the purpose of mining other than gold mining of a further area of land, amounting to 3800 acres of Crown land, making a total area of 4120 acres, being an area greatly in excess of the area allowed by the said Act to be applied for as aforesaid or to be taken up by way of conditional purchase by any one person at any one time, the whole of the said lands being at and before that time open and available under the said Acts for selection for the purpose of mining other than gold mining; and the said company was, in contravention of the said Acts, declared the conditional purchaser of the lands as aforesaid; and the said Redhead Coal Mining Company, Limited, by reason thereof could not and did not in conformity with the provisions of the Crown Lands Alienation Act of 1861 and its amending Act of 1875 conditionally select for the purpose of mining other than gold mining the lands in our said deed of grant mentioned and described By means of which said several premises the said deed of grant so as aforesaid granted to the said Redhead Coal Mining Company, Limited, their successors and assignees, is or ought to be void, and of no force or effect in law. And we, being willing that what is just should be done in the premises, command you that by your lawful officers of our said colony you give notice to the said Redhead Coal Mining Company, Limited, that they be before us in our Supreme Court of the said colony, at King-street, Sydney, on the 27th May, instant, to show if they have or know of anything to say for themselves why the 1886. REGINA v. THE COAL deed so granted to them as aforesaid, and all duplicates of the same registered under the provisions of the Real Property Act of 1862 and its amending Act, and the enrolment of the same as REDHEAD herein before mentioned, and all entries and memorials in the MINING Co. said register book of the said Registrar-General relating to such land, for the reasons aforesaid, ought not to be cancelled, vacated and disallowed; and why the said Registrar-General should not be directed by the Supreme Court to cancel, vacate, and disallow our said deed of grant and all duplicates thereof as aforesaid, and the enrolment of the same as aforesaid, and all entries or memorials in the register book of the said RegistrarGeneral relating to such land; and why this deed of grant and all duplicates thereof as aforesaid should not be restored into the office of the said Registrar-General, these to be cancelled, vacated, and disallowed as aforesaid And further, to do and to receive those things which our said Supreme Court shall consider just in this behalf, and have there the names of those by whom you shall so give them notice of this writ." On 26th July a rule was granted on the application of the defendants calling upon the plaintiff to show cause why the writ of scire facias should not be quashed and set aside on the grounds: 1-That the Court has no jurisdiction to issue a writ of scire facias for annulling the said deed of grant. 2-That there is no record in the Court whereon to ground the writ. 3-That the writ does not set forth sufficient grounds in law for annulling the said deed of grant. Darley, Q.C., and C. B. Stephen (Reid with them) now (Aug. 16) moved to make the rule absolute. We first take the preliminary point that as the grant to the Company has not been recorded in the Supreme Court, that Court has no jurisdiction to entertain a scire facias for the purpose of annulling it. In R. v. Hughes (1), where leases were made of a larger area than was authorised by the Act of Parliament, the judicial committee of the Privy Council held, affirming the decision of Supreme Court of South Australia, that such leases, not being enrolled in any Court of record, could not be revoked by writ of scire facias. (1) L.R. 1 P.C. 81; 35 L.J. P.C. 23. |