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notice. However, under the Torrens system, the gift to C would probably
prevail. C had no notice of the gift to B, and would be entitled to the protection
of s. 29 of the LTA.3 A gave the first Form A to B. He did not give it to
B’s lawyer, nor did A have A’s lawyer register the Form A. It was up to B to
have the Form A registered to fully protect the gift as against the world.
Whether B waited one day or ten years to register, B’s gift was in jeopardy
until B’s Form A was registered, when B’s equitable interest in Terra would
become a legal, registered fee simple, good as against the world.4
DUPLICATE INDEFEASIBLE TITLE
What if A delivered a fully executed paper Form A to B, the donee, who gave
it to B’s lawyer for registration but A retained possession of the duplicate
indefeasible title, thus preventing registration of the Form A?5 In MacLeod
v. Montgomery,6 Hattie Montgomery was the registered owner of a parcel of
land near Nanton, Alberta. Alberta is a Torrens province, with legislation
similar, but not identical, to the LTA. Hattie executed a transfer in favour of
her granddaughter, Donna MacLeod, and immediately delivered it to
Donna. She promised to have the duplicate title turned over to Donna, but
this promise was never kept. The court put the issue as follows: “Does the
execution of the transfer with its delivery to the respondent in the circumstances
of the present case but without delivery of the duplicate title,
although delivery was promised, constitute a complete or an incomplete
gift?”7 The court concluded that:
to complete a gift effectively, the donor is obligated to do what can be
done. In Alberta, in order for a transfer to be registered, that transfer has
to be accompanied by a duplicate certificate of title, unless the title is
already lodged at the Land Titles Office … the delivery of the transfer, as
well as the duplicate certificate of title, was required to complete the gift
in this case. The duplicate certificate of title was not delivered. It lay in
the would-be donor’s power, by instructions to her solicitor, to complete
the gift. There is no evidence that she gave such instructions. Equity will
not force a volunteer to complete that which is incomplete.8
That seems straightforward. However, Hattie’s counsel relied on s. 56 of
Alberta’s The Land Titles Act,9 which provides: “no instrument is effectual to
pass any estate or interest in that land … unless the instrument is … duly
registered … upon the registration of any such instrument … the estate or
interest passes”. In British Columbia, s. 20 of the LTA opens with the words
“except as against the person making it”, and then provides that no estate
or interest passes unless the instrument is registered. Those opening words
have been used creatively in a number of cases to make an unregistered
instrument operative.10 Could s. 20 be used in British Columbia to give a dif-