Facts

• A woman owned land and gave her solicitor the certificate of title and a power of attorney giving power to her husband.
• The solicitor forged a transfer to a fictitious person and removed the woman’s name from the register.
• The solicitor arranged a mortgage and used the money.
• The mortgagee was unable to register the mortgage as they needed evidence relating to the fictitious person.
• The solicitor forged more documents and it was registered.
• The woman brought an action against everyone and wanted title to be returned.

Issue

• Indefeasibility of title.
• Whether the owner of a property could restore their registered title free of a mortgage?

Held

• The title of the property was returned to the woman free of the mortgage on the basis it was the result of fraud.
• The object of the legislation was to save people from the trouble of investigating the title and so those bona fide purchasers who have registered will receive indefeasibility.
• However, when they deal with a person who is not the registered proprietor, they do not transact on the faith of the register and cannot acquire good title.
• This case is significant because it demonstrates the integrity of the system; it was invalid because the mortgagee should have confirmed the accuracy of the register.

RELEVANCE/OTHER NOTES

• This case outlines the old position – it is useful for background reading, however it is NOT as relevant to the position in Torrens title jurisdictions.

-- Download Gibbs v Messer [1891] AC 248 as PDF --

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