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L^£.<- it^' iftrf/Vvt'; >^^«^uj' 4' C^'^CpC ^ ^' ^ ' .'I • ■ ' ,^ ^ ^**



1888- PL^J/^^£^

THE — -

"LAND TEANSFER" LAWS ^'

OF AUSTRALASIA:

BEING THE FULL TEXT WITH SIDE NOTES OF THE LAND TRANSFER

(TORRENS) ACTS OF



NEW SOUTH WALES
NEW ZEALAND
QUEENSLAND



SOUTH AUSTRALIA
TASMANIA

AND VICTORIA



WITH A

DIGEST OF 221 SUPREME COURT AND APPEAL
CASES OF THE ABOVE SIX COLONIES.

ALSO,

GENERAL INDEX TO EACH COLONY'S ACTS AND FORMS,
INDEX TO CASES, ABBREVIATIONS, &c., &c.



WILFRED BADGER,

Solicitor of the Supreme Court of Judicature in England.

Barrister and Solicitor of the Supreme Court of New Zealand.

Compiler " N. Z. Statutes 1842-1884," " N. Z. Local Government Guide,"

''Licensing Laws and Cases" of Victoria, New South Wales,

Queensland, South Australia, Tasmania, and New Zealand.



pBorran by »hi '•Ltttkwoh Times" OoicPAirr Ldcitbd, Gtouoi8Tii.8».



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CONTEOTS.






^^



Inscription
Preface

" ToRRKNS* " Land Transfer System
GsNERAi. Index and Forms —
New South Wales
New Zealand ...
Queensland
South Australia
Tasmania
Victoria
Land Transfer Acts —

New South Wales— 1862— No. i
Do. 1862— No. 2

Do. 1878— No. 3

New Zealand— 1885
Queensland 1 861— No. i
Do. 1877— No. 2

Do. 1884— (Registrar of Titles)

Do. 1885 — (Undue Subdivision Land Prevention)

South Australia 1886

1862— No. I

1863 — No. 2

1867 — No. 3

1874 — (Deceased Persons' Estates)

1878— No. 4

1886— No. 5

1866— No. I

1867 — No. 2

1869 — No. 3 (Claims to Dower) ...

1 87 1— No. 4 (Friendly Societies) ...

1878— No. 5

1880 — No. 6 (Dower Abolition) ...

1885— No. 7

1887— No. 8




DIGEST OF CASES,



page.
iv.
v., vi.
.. vii. to xxvi.

,. XX vii. to XXX.

xxxi. to xxxvi.

xxxvii. to xlii.
..xliii. to xlviii.
.. xlix. to liii.
.. liv. to Iviii.

I to 48

49

50 to 53

54 to 105

106 to 157

158 to 172

172 to 174

174 to 176

.. 177 to 244

245 to 290

291 to 294

295, 296

.. 297 to 303

304
.. 304 to 313
.. 314 to 368

369

.. 370 to 372

372

372, 373

.. 373 to 374

.. 375 to 395

.. 395 to 402

405, 406

407

408



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I |nsmk tp$ Wioxk

TO

HENRY JUBB, Esq., J.P.,

OF

MOORGATE HOUSE, ROTHERHAM, YORKSHIRE,

WHOSE CONSISTENT FRIENDSHIP FOR THE WRITER,
ADDED TO A DEEP PERSONAL INTEREST IN THE SUBJECT OF LAND AND
ITS ALIENATION, BOTH PROFESSIONALLY AND PRIVATELY,
AT LEAST WARRANT THIS INSCRIPTION.



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PREFACE.



In this Volume will be found copies of all Acts relating to the
" Torrens' " system of Conveyancing in force in the Colonies of
Victoria, New South Wales, Queensland, South Australia, Tas-
mania, and New Zealand, together with full Inter-colonial sectional
references and cross references, the same being indicated by
various distinctive letters and figures at the end of all sections
where such references are deemed of value.

At the end of this Work will also be found a Digest of 221
*' Land Transfer " Cases decided in the Supreme and Appeal
Courts of the above Colonies ; and having visited Brisbane, Sydney,
Melbourne, Adelaide, and Hobart for the express purpose of their
collection in May, 1887, I have been enabled to make the Digest
as complete as possible. I intend half-yearly (or oftener possibly)
k> publish reports of all future Land Transfer decisions in the six
Colonies, and I purpose to bring out the first number at the close
of this year, which will contain every available report to December
31st, 1888. I shall be glad if all interested in the subject matter
of the work will put themselves into communication with me, and
by giving early notice of cases, enable future reports to be as
complete as possible.

Having had for the past twelve months an almost daily
acquaintance with the Land Transfer Acts of the various Colonies,
I have been impressed with the similarity and oneness of their
main provisions. At this lime, when so much is said — so little
done — as to Federation, I think that in the Torrens' system, as
set out by " Statute," something very near to uniformity could
be obtained in the wording of the Statute Law prevailing in all
the Colonies on this subject.

Some Colonies differ from others geographically and in other
respects, but such differences could be provided for by the Act of



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yU ' PBS7ACX.

each Colony being in two parts, the first to contain special provi-
sions to apply to the particular Colony, the second to contain
general provisions applicable to such Colony, in common with
the other five. The value of cases decided in the Courts would
not then depend on the construction put upon the wording of a
Section in a particular Act, but would affect all Colonies alike,
attaching to all judicial decisions a wider influence. An immense
lever would thus be given to the System, a greater value to the
Reports, and the Colonies would be drawn into still closer union
than now.

Should this suggestion commend itself to any of my readers, I
shall be glad to take such steps as future correspondence or
expression of opinion shall warrant.

Lastly, I cannot close this preface without thanking, in the
warmest terms, Richard Gibbs, Registrar of Titles, Melbourne ;
E. Grant Ward, Registrar-General, Sydney ; Thomas Mylne,
Registrar of Titles, and Wm. Henry Osborne, solicitor, Brisbane ;
Walter Boyd Tate Andrews, Registrar-General, and Harry Bf.
Taylor, Judge's Associate, Adelaide ; James W. Whyte, Recorder
of Titles, Tasmania, for much valuable assistance, advice, and
for copies of Acts and " Reports," the latter in many cases
following me after my journey to each city, thus enabling me to do
the work of collecting materials in a comparatively short time and
at less expense than anticipated at the onset ; thanks being also
accorded to Martin James Kilgour, of Christchurch, for valuable
departmental information. At the same time, and with an equal
sense of gratefulness, I must acknowledge similar help from James
Meacham Batham, District Land Registrar of this city, who has
also been good enough to read over the introductory matter to this
work, to the great advantage of both compiler and subscriber.

W. B.

ChrUtehmrcht New Zealand^ June 30, 1888.



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THE "TORRENS



^^



OB



LAND TRANSFER " SYSTEM



OP



CONVEYANCING & LAND ALIENATION.



The " Land Transfer," OP " Torrens' " system of land alienation, takes its
rise in South Australia, geographically speaking, the " Centralia " of " The
Australias." Mr. Eohert B. Torrens (afterwards Sir E. E. Torrens),
its acknoTvledged originator, taking for his guide " The Merchant
Shipping Act," a formulary statute of proved capacity for dealing with Hittorr of
ships and shares in ships, to an almost infinitesimal extent, and this, rena " ^i
notwithstanding that no specific right to any particular part of a ship is
nsoally secured to a shareholder, and hy a skilful adaptation of the law
gOTeming matters of so distinctly a mohile character as ships, and applying
them to land, usually deemed immobile, he so far succeeded that his pebble
cast on the placid waters of Conveyancing in 1856, has caused its circle
to widen out again and again, to embrace within its simple and clearly AnatraUan
defined lines first one and then another, till not only most of the " titles " who hm
in the Colonies of New South Wales, New Zealand, Queensland, South lyatem
Australia, Tasmania, and Victoria have been brought within its area and
influence, and ambitiously, perhaps, but for their real good, threatens to
secure a foothold in Conservative England and Eepublican France.

To Sir Eobert E. Torrens, therefore, must be conceded this, at least,
tliafc in introducing to the world a method of getting rid of that network of
" symbolism and needless intricacy," with its tons of parchment, known as the
English Conveyancing system, in favour of one at once so efficacious and
nmple as the '' Torrens " system, he not only deserves well of his countrymen^
bit as a layman has succeeded well in a direction where none but a legally
trained mind could have been expected to excel, and this probably in a
Oeature never anticipated at the onset even by himself «



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tern



Till. H^HIE TOttBEKS OE LAJfTD I'BAKSt'EB 8Y6TE1C.

Object of The " Torrens," or "Land Transfer," as contra-distingmthed from the

the ** Tor-

87^ *' old," or " general conveyancing," system of land alienation, has for its
object the simplification of titles and the facilitating the procuration thereof,
and is a substitution of title by " registration " for title by " deed," as
under the " old " system a " transfer " duly registered (See No. 3 Specimen
Form hereafter), followed by a certificate of title (See No. 4 Specimen Form,
post), guaranteed by " Q-ovemment, being substituted for the old Deed of
Conveyance.

As it will conduce to a better knowledge of what has been stated and
will hereafter follow, " Specimen Forms " of —

(1) A simple and most ordinary English conveyance deed ;

(2) A colonial conveyance (not a dealing under the " Torrens "
system but merely No. 1 " colonialised ") ;

(3) A transfer under the " Torrens " system
"With No. 4. the certificate of title granted thereon

Are here introduced for consideration by students and subscribers, English
as well as colonial.



Note. — In the following form the words oommencing *' Together with all
outbuildings " down to '* John Brock, his heirs and assigns*' (where first
ooourring), are implied in Colonial Conveyancing, but nevertheless ar&
usually made use of in part or in whole notwithstanding such implica-
tion. An estate in fee-simple is presumed against a grantor unless a
contrary intention to grant a less estate appears by express terms in the
Colonial Deed of Conveyance.



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STAMP.
£3 15b.



SPECIMEN FORM No. 2. 1
Colonial Conveyance. )

SUg "D^h ^^^^ ^^' 2^^^ ^^-^ of February, i888. Betfatm ^ZZ>-r4JW'
" *^ STAPYLTON, of the City of Christchurch, in the

Colony of New Zealand, Merchant, of the one part, and ERIC SMITH,
of the same place. Merchant, of the other part, JKltnesMlJf that in considera-
tion of the sum of £^oo paid to the said Aldam Stapylton by the said JSric
Smith, the receipt whereof is hereby acknowledged, the said Aldam Stapylton
doth hereby convey and assure unto the said Eric Smith and his heirs : ^U
that parcel of land situated in the City of Christchurch aforesaid, containing
~ by admeasurement twenty perches or thereabouts, being part of the town
section numbered ^ on the map of the Chief Surveyor of the late Province
of Canterbury, in the said Colony, setting out and describing the town lands
in the said City, and being the lot numbered j on the plan deposited in the
Deeds Registry Office, in the City aforesaid, as No, 6. SRil^ all appur-
tenances belonging, ^rt SRitittss whereof the said Aldam Stapylton hath
hereunto subscribed his name,

ALDAM STAPYLTON.
Signed by the above named Aldam Stapylton ">
in the presence of j

TINSLEY BAREE, Solicitor's Clerk, Christchurch.

N.B. — It will be seen on reference to the above mode of Conveyance
that in consequence of reform in Colonial methods and the use of " Implied
Covenants" (created by Statute) that precisely the same result is here
obtained in i88 words (2 folios 44 words) as in Specimen Form No. i with
its 421 words (5 folios 61 words), the parcels in each being numerically the
same.



:.i



L



SPECIMEN FORM No. 3.
Memo, of Transfer.

"Torrens*" System. J NEW ZEALAND.

FRANCIS HENRY ENGLAND, of Christchurch, gentleman, being
-^ registered as the proprietor of an estate in fee-simple, subject, hov)ever,
to such encumbrances, liens, and interests as are notified by memorandum
under-written or indorsed hereon, in all that piece of land situated in the
District of Christchurch, containing i rood, be the same a little more or less,
being Lot No, 203 on the plan deposited in the Land Registry Office,
Christchurch, as No. ^20.

In consideration of the sum of £joo paid to me by William Brock, of
Christchurch, ironfounder, the receipt of which sum I hereby acknowledge, do
hereby transfer to the said William Brock all my estate and interest in the
said piece of land. In witness whereof I have hereunto subscribed my name
this i8th day of November, 188 1,

FRANCIS HENRY ENGLAND.
Signed on the day above named by ")
the said F. H, England, in the \
presence of ^

THOMA.S BURRELL, J.P., Christchurch,

N.B. — Memos, of Transfer are on paper, usually "draft " size, with convenient blanks,
and ample marginal instructions and directions for filling in same.



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SPECIMEN FORM No. 4.
Certificate of Title.
Lin. 136.



NEW ZEALAND.



Begisteb Book,

Vol. 78, Folio 137.



PURSUANT to Memorandum of Transfer No. 17542 from FRANCIS HENRY
■* ENGLAND, WILLIAM BROCK, of Christchurch, Ironfounder, is now seized of an
estate in feC'Simple, subject nevertheless to such incumbrances, liens, and interests as are
notified by Memorial underwritten or indorsed hereon, in that piece of land situated in
the District of Christchurch, containing i rood or thereabouts, bounded as appears in the
plan hereon and therein coloured green, being the lot marked 203 on the plan depoiited in
the Land Registry Office as Plan 420, which said piece of land is part of the Rural Section
marked 300 delineated in the Public Map of the said District deposited in the Ofice of the
Chief Surveyor, originally conveyed the twenty-eighth day of June, 1852, by the Canterbury
Association to Joseph Brittan.

In SZEltmsS whereof I have hereunto signed my name and affixed my seal this
twentieth day of March, one thousand eight hundred and eighty-two,

J. M. WATERTON,
District Land Registrar of the District of Canterbury*



Signed the 20th day of March, i882yin ")
the presence of J, M. Gorley, )



f BSAL. j



Mortgage 15452 produced gth January, 1883, at 2.35 p,m.
William Brock to Robert Donald.

J. M. WATERTON, D. L. R.
Lease No. 1702 produced nth October, 1883, at 2.55 p.m.
William Brock to Robert Donald.

J. M. WATERTON, D, L. R.

Transfer No. 25024 produced 10th June, 1886,
at 11 .30 a.in. William Brock to Pet«r Parkin,
of ChriBtchurch, gentleman, and John Roberts,
of ChriBtchurch, draper.

J. M. WATEBTON, D. L. B.
Transfer No. 26329 (Grant of Easement) pro-
duced 25th April, 1888, at 2 p.m. P. Parkin
and John Roberts to Arthur Komer, of Ghrist-
churoh, cook.

J. M. WATEETON, D. L. B.
The above named John Roberts died 2nd May,
1888. Transmission No. 256 to Peter Parkin
as surriving joint tenant, produced 20th Maj,
1888, at 2.10 p.m.

J. M. WATEBTON. D. L. B.
Transmission No. 260. Probate of the will of
Peter Parkin above named, who died 21st May,
1888, granted to Abraham Parkin, of Sunnyside,
wool merchant; produced Slst May, 1888, at
10.16 a.m.

J. M. WATEBTON. D. L. B.
Mortgage 227^0 (Encumbrance) produced Slst
May, 1888, at 10.15 a.m. Abraham Parkin to
Edith Mary Brock.

J. M. WATEBTON, D. L. B.
220 (Caveat), produced 2nd June, 1888, at
12.80 p.m.

J. M. WATEBTON, D. L. B.

COMFILBB'S NOTES ON ABOVE.

The flgnres LIII. 185 are " depftrtmenUl referenoes to prior dealings."

The words snd flffnree Tol. 78. Folio 187, to the right, is the nnmber of the '* Title.*' The words *' all the
land in Begister Book, Vol. 78, Foiio 137," being sufficient description of "parcels " to carry all William
Brook's interest on a sale.

Transfer N o. 26024 is a ** settlement," and is so entered on the C.T. Copy can be deposited in office for
reference, bni no note made of same on Begister. Beneficiaries can lodge caveat to protect their interests.

Transfer No. 26829 demonstrates the mode of entering grant of easement.

Nos. 266 and 260 show two kinds of transmissions.

Mortffage 22740 shows manner of secnring payment of an annuity.

No. ao is a oareat to prevent deaUsga. (This would go on Begister onlty, and not on Oertifloate of Title.)




GL0UCE8TEB ST. EAST



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UU THE TOBBSFS OB LAIO) TBANB7EB STBUM.

AbstfMts of Under No. 1. — Inasmuch ai deeds with probates and other recognised
channels of title constitute the owner's title, and as each deed leans on its
predecessor for support, each of such deeds form a link only in a chain, the
soundness of which must be tested on each transaction by a re-examination
of each link, the whole chain of title haying to be again tested on each
transaction, as no solicitor (seeing he is liable to his client in damages ii the
title proves to be defective) can rely on the investigation made in any
former transaction, and as a title cannot be derived by investigation merely,
it follows that to such a state of things there can be no finality, while the
chain having a link added with every fresh transaction can only increase the



owing to the Colonial-made members of this profession (who are usually in
the majority,) having had no training in that direction. The Colonial method
being to dispense with (1) indenting ; (2) lengthy recitals ; (8) lengthy
parcels ; (4) sealing and delivery ; (5) livery of seisin ; (6) " lease and
release ; " (7) reference to erections on land ; (8) receipt for consideration
money indorsed ; (9) covenants for title (same being implied by Statute) ;
(10) equitable mortgages by deposit of deeds ; (11) vendor's lien for
unpaid purchase money ; (12) right of tenant for life to commit equitable
waste unless expressly permitted ; (13) merger by operation of law ; (14)
" extinguishment " in the case of a release of part of land charged ; (15) all
bars and restrictions preventing a married woman from dealing with her



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THB T0BBSK8 OB LAND TSAlfS^XS S7BISM. XIU.

knd ipMitaHn the sftme manner as if single ; (16) implied tenancy from year
to year by payment of rent; (17) shifting, springing, and executory uses, a
direct conreyance containing every limitation without the intervention of
uses being substituted ; (18) estates by wrong ; (19) " power to re-enter "
in all cases where created by implication ; (20) division where action for
partition usual, sale by Supreme Court substituted where advisable;
(21) payment of mortgage out of personal assets ; (22) release or re-
conveyance of mortgages, a simple receipt endorsed being suufficient ; (23)
acknowledgment of married women. In addition to the foregoing numbered
1 to 23 inclusive the following matters are made law by Statute, and are in
force in New Zealand and wholly or partially so in most or all of the other
Colonies touched by this work, viz ; (24) implied covenants may be negatived
by express declaration ; (25) usual covenants in mortgages, leases, or
marriage settlements are implied ; (26) foreclosure prohibited ; (27) executor
of mortgagee can " re-convey " ; (28) a person may convey to himself

provided for equitable waste ; (30) dower

B2) claim




jfthe"Tor-

OMlMd



aecqprted and certificate of title granted, and that sum insures your title
onee and for ever and is only again payable when the land is transmitted
by settlement, wiU, or intestacy, and we thereby and thereafter constitute
ourselves your * land guardians ' and * insurer of title, ' and as such, we sweep
away * abstracts of title ' hitherto costing you 10s. per page by abolishing
their necessity, as also the expense of perusing requisitions on title. "We
then assist you to transfer or deal in your land in every way by providing
forms of transfer, mortgage lease, settlement, power of attorney, and other
dealings which are all designed to express your meaning in the plainest
English (See specimen form No. 3), you complying at the same time with
the simplest rudimentary provision of attaching your signature to every



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ny. THE TOBBSl^S OB LAND TKLSBTEM SYSTEM.

dealing, and having that signature properly attested. And, moreoyer, while
under the old system you can register almost anything, the authorities taking
no responsibility, under the Torrens system, we not only see that your
transactions are consecutiye and regular hut that your stamping is correct
and your powers of attorney, and, in fact, all documents are in proper
form, and in the absence of fraud fairly chargeable to you, the registration
of the transaction is in effect a declaration to the world of the right of
yourself and others named therein and thereunder, and as such, is protected
by Qoyernment, who thereupon take all responsibility as concerning title
and ey.erthing else after registration of a dealing, and this, in many cases, at
a cost, including your solicitor's fees, stamp registration, and other out-
pockets not exceeding what would be paid for a short abstract of title alone
under the * old system/ " And for the Torrens system, therefore (shortly
put), and in detail, we claim the following undoubted advantages : —

(1) That every benefit possible under the " old system " is embraced by
it with the added advantage of registration of the title itself.

(2) That abstracts and investigations of prior title are unnecessary.

(8) That titles prospectively are rendered as simple as possible by
reason of there being no prior title, to harass vendor's or purchaser's,
same being guaranteed by Government as unimpeachable and
therefore perfect.

(4)^ That purchasers have therein an assured (and therefore the highest)



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