Gibbs v Messer [1891] AC 248 - 03-12-2018

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Gibbs v Messer [1891] AC 248

http://lawcasesummaries.com/knowledge-base/gibbs-v-messer-1891-ac-248/

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
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 RP, they do not transact on the faith of the
register and cannot acquire title.
The 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, however it is NOT as relevant to
the position in torrens title jurisdictions.

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