SPROULE J.

This is a case of great hardship to Lan Heong and the Sze Hai Tong Bank, but I must not set too much store by that.

A receiving order was made against Chop Tong Tuck Tai on 18th February 1916. The act of bankruptcy was committed upon 25th January 1916. In March, Wong Chiu Pan sold certain premises and land, which on 16th February had been reconveyed to him by a mortgagee, to Hoong Lan Heong. In April, Hoong Lan Heong mortgaged for value to the Sze Hai Tong Bank. In August, Wong Chiu Pan was declared to be a partner in the chop and was adjudged bankrupt.

Thereby, and in virtue of section 20(3) of the Bankruptcy Ordinance, all his property vested in the Official Assignee. Under section 41, the Official Assignee's title related back to 25th January 1916, when the act of bankruptcy was committed. The receiving order put an end to the bankrupt's power of disposition, and was notice thereof to all the world.

The receiving order was never registered in the Registry of Deeds. It never is in practice, it being so seldom the case that the Official Assignee can ever have information upon which to base registration at that stage of the bankruptcy. The adjudication order was duly registered on 18th August against the land and premises referred to. Prior to that date Hoong Lan Heong's conveyance and the mortgage to the bank had been duly registered.

The Official Assignee now claims the land and premises, freed from the claims of Hoong Lan Heong and the bank. The bank and Hoong Lan Heong set up no case upon the foundation of section 47 of the Ordinance. They rely upon section 16 of the Registration of Deeds Ordinance and their priority of registration. The bank, in addition, relies upon Hart v. Green [1912] 3 KB 6.

As for the Registration of Deeds Ordinance, the Court of Appeal on 1st December passed judgment by a majority affirming my own decision in a matter in which Khow Joo Choe and others were claimants and Ng Soo Bee execution creditor. My judgment in the present issue was reserved until the result of that appeal should be known. I promised Mr. Koek (for Hoong Lan Heong) that I should hear further argument touching the Appeal Court's judgment before deciding this matter. But upon consideration, I do not think any useful purpose would be served by any further discussion, and I intend to avoid the further delay involved in obtaining from Penang copies of the judgments of the learned Judges of the Court of Appeal.

The Penang case seems to me to be exactly in point. There Boo Bee had a judgment against A issued a writ of seizure and sale and registered an order under it against certain land. A had parted with the land to the claimants, had signed a conveyance to them and handed over possession to them. He had no beneficial interest in the land and no right of disposition. But the claimants' conveyance was not registered until after Boo Bee's order. Boo Bee sought, by priority of registration alone, to override the claimants' legal and beneficial estate. As I understand it, the Court of Appeal has held that registration of deeds is not title by registration and does not confer title where none exists, and they upheld the claim as against the execution creditor.

In our case, Wong Chiu Pan and Hoong Lan Heong after him, it is true, had apparent possession. But Chiu Pan had no beneficial interest and no power of disposition in March 1916. They were by operation of law vested in the Official Assignee in trust for the creditors. Nemo dare potest quod non habet. Chiu Pan had nothing more to give than a paper title (and apparent possession). Mere priority of registration, therefore, cannot confer a better title on Hoong Lan Heong than the Official Assignee's title, now in evidence because now registered.

The bank however sets up Hart v. Green [1912] 3 KB 6. I think the distinction between that case and ours is, that there the purchaser for value had no notice. Here the bank was affected with constructive notice by the