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The Shiloh Yarn Tangle*
Published online by Cambridge University Press: 16 January 2009
Extract
To most lawyers, Shiloh has hitherto signified, according to taste, either sn Old Testament shrine or a battle in the American Civil War, or both. In view of the general Lancastrian sympathy for the Confederate cause in the 1860S, it is presumed that the plaintiff's mill in Shiloh Spinners Ltd. V. Harding, which has given the name a new and daunting association, was named after the second of the two locations. The case, for which leave has been given for an appeal to the house of lords, involved a further consideration of that embattled statute, the Land Charges Act 1925, and of several other points of fundamental importance to land lawyers. This article is mainly concerned with the points concerning the interpretation of the Land Charges Act, which, it will be suggested, contain some unnecessary and alarming novelties. Before considering the complex facts of Shiloh itself, however, a few general observations on the land charge system are needed.
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References
1 [1971] 3 W.L.R. 34.
2 Land Charges Act 1925, s. 10.
3 Law of Property Act 1925, s. 198.
4 Land Charges Act 1925, s. 13 (2), (3).
5 Hollington Brothers Ltd. v. Rhodes [1951] 2 All E.R. 578n.Google Scholar
6 Law of Property Act 1925, s. 2 (1).
7 Law of Property Act 1925, s. 2 (1) (i); Settled Land Act 1925, s. 18 (1) (b). For analogous provisions for trusts for sale see the Law of Property Act, s. 2 (1) (ii) and s. 27 (2) as amended. In a few special cases certain registrable land charges may be overreached despite registration, for example, under the Settled Land Act 1925, s. 72 (3), and s. 2 (3) (v) of the Law of Property Act 1925, but these may be ignored for present purposes.
8 Caunce v. Caunce [1969] 1 W.L.R. 286.Google Scholar
9 Law of Property Act 1925, s. 27 (2) as amended.
10 Some confusion occasionally exists between situations where equitable interests are overreached (i.e., are statutorily transferred to the purchase money) and situations where equitable interests are overridden (because the land has come into the hands of a bona fide purchaser) and sometimes the expressions are used as if they were interchangeable. Occasional instances of this regrettable practice occur in Buckley L.J.'s judgment in Shiloh. Here, however, an attempt will be made to use the words in their distinct meanings. Of course, the word “overriding” is used in a quite distinct sense from that of “overriding interests” in s. 70 of the Land Registration Act 1925.
11 Hall v. Ewin (1887) 37 Ch.D. 74.
12 Land Charges Act 1925, s. 10 (1) (d) (ii).
13 Dartstone Ltd. v. Cleveland Petroleum Co. Ltd. [1969] 1 W.L.R. 1807.Google Scholar
14 In a few special cases some such interests may be overreached by the special machinery of an ad hoc trust for sale, etc.—see n. 7.
15 Supra, n. 5.
16 Class C (iv).
17 Class D (iii).
18 See, e.g., Georgiades v. Edward Wolfe [1965]Google Scholar Ch. 487 (Class C (iii)); Thomas v. Rose [1968] 1 W.L.R. 1797Google Scholar (Class C (iii) ); Dartstone v. Cleveland (supra, n. 13) (Class D (ii) ); Matrimonial Homes Act 1967, passim.
19 Land Charges Act, s. 10 (1) (d) (ii).
20 Law of Property Act 1925, s. 1 (2) (e).
21 Buckley L.J. appears to have regarded the point as open.
22 If, as the court held, the right of entry was equitable, might not the land be settled land within s. 1 (1) (iii) of the Settled Land Act 1925? I am indebted to Mr. R. J. Smith for this ingenious suggestion.
23 s. 10 (1) (c) (iv).
24 [1949] 1 K.B. 285.
25 [1944] Ch. 37.
26 Supra, n. 18.
27 Which, in the opinion of the learned judge, viewed as a conveyancing precedent, “had as little hope of posterity as it had pride of ancestry.”
28 Per Sachs L.J. at p. 48 D.
29 There are no prizes offered for guessing which member of the court this was.
30 At pp. 54 G–55 B.
31 Italics added.
32 At p. 43 F.
33 Class C (iv).
34 Class C (iv).
35 s. 10 (1) (d) (iii).
36 [1967] 2 Q.B. 379.
37 Law of Property Act 1925, s. 52 (1).
38 (1882) 21 Ch.D. 9.
39 (1887) 35 Ch.D. 681.
40 See also May v. Belleville [1905] 2 Ch. 605.Google Scholar
41 At pp. 397, 399.
42 At p. 403.
43 At p. 49 H.
44 At p. 40 G.
45 Supra, p. 265.
46 At p. 50 B.
47 At p. 50 G.
48 At p. 50 G.
49 At pp. 39 G–40 F.
50 Italics added.
51 Subject to minor exceptions: Law of Property Act 1925, s. 2 (3) (v).
52 See supra, p. 259. The doctrine of notice was amended slightly, particularly as regards imputed notice, by the Law of Property Act 1925, s. 199.
53 Law of Property Act 1925, s. 2 (3) (v).
54 Land Charges Act 1925, s. 10 (1) (c) (i).
55 Death duties are another case—registrable under Land Charges Act 1925, s. 10 (1) (d) (i).
56 i.e., but for section 2 (3) (v).
57 (1841) Cr. & Ph. 240.
58 [1970] 3 W.L.R. 956.
59 The case itself concerned registered land, and turned on the interpretation of s. 70 (1) (g) of the Land Registration Act 1925. See also the decision of the Court of Appeal in [1971] 2 W.L.R. 1263.
60 [1967] Conv. 394.
61 [1965] 2 Q.B. 29.
62 n. 60. supra.
63 Even though there is no express statutory provision providing for them all.
64 Supra, n. 5.
65 The Law of Real Property, 3rd ed., p. 1128.
66 Supra, n. 36.
67 Supra, p. 265.
68 Unlike Inwards v. Baker (supra) this right did bear a close resemblance to a registrable interest (Class D (iii) ).
69 Law of Property Act 1925, s. 146; Common Law Procedure Act 1852, ss. 210–212.
70 (1811) 18 Ves. 56.
71 In any event, he was prepared to distinguish them as applying only between landlord and tenant.