D had a house with a mortgage, which he left his mother, B, and sister, C, living in and later gave his mother power of attorney. C fraudulently got B to sign a document allowing C to buy the house and, having paid off the first mortgage, took out a second, bigger one from P. She fell into arrears and P sued D for possession. It was claimed that B knew nothing of the sale, her power of attorney or the mortgage. D therefore claimed non est factum for D, so that C’s action had been a fraud and he was entitled to rectification of the register against both C and P. CA found for P. (1) There was no non est factum on the facts. (2) C’s failure to pay D/B for the validly sold house merely made the transaction between C and D/B voidable not void, so that it was valid by time she had entered transaction with P. Therefore no rectification would be permitted.
Scott LJ: If the non est factum claim had applied, then rectification would have been granted. The same is true if fraud had been present. However, he defines fraud as meaning “fraud in obtaining the registration” rather than a fraudulent transaction, subsequently registered correctly.