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The land transfer laws of Australasia: being the full text with side notes ... online

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may distraiQ upon the occupier or tenant of the said land under the power rorecioaare



to distrain hereinafter contained for the rent then due or may bring an action
of ejectment to recover the said land either b^ore or after entering into the
reeeii)t of the rents and profits thereof or making any distress as aforesaid
and either before or after any sale of such land snail be effected under the
power of sale given or implied in his memorandum of mortgage or of ,
encumbrance in the same manner in which he mi|;ht have made such entry A
or distress or brought such action if the principal sum or annuity were '
secured to him b y a conve yance of thelegal estate in the land so mortgaged
or encumbered and any sucFregistereJmbrtgagee shall be entitled to fore-
close the right of the mortgagor to redeem the said mortgaged or encumbered
lands in manner hereinafter provided. (Slack v. Dovonton, 11 ; Pannan v.
Pannan, 16 ; Burne v. Stewart, 28 ; re Sellars, 82 ; Jellicoe v. Wellington
Loan Cdmpany, 50; Jonet v. Sellick,7S; Sanders y, Wadham, 88; B.N.S.W.
V. Palmer, 108 ; Kirkham v. Julien, 109 ; Bosb v. WNeil, 118 ; Rart v.
Stratton, 119; Colonial Bank v. Babbage, 126; Tranter v. Lord, 25,
119; Wilkinson v. Brown, 121 ; Kearton v. Biohardson, 125 ; Dyke v.
Blliott, 133 ; Mnnoran v. Weir, 186 ; Grey v. Watson, 152 ; Ibrtnby v.
Adelaide Corporation, 179 ; Colonial Bank v. Boache, 187 ; Buckett v.
Enohbe, 167. Z. 97 ; Q. 61-60, 61 ; S. 187, 188 ; T. 62-52, 57 ; V. 67-2.)



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18 NEW SOUTH WALBS SEAL PEOPEETT ACT— No. 1.

Nottoebj 59* Wheneyer a mortgagee or encumbrancee sball giye notice of his

S'toSSTto demanding to enter into receipt of the rents and profits of the mortgaged or
Parent to encumbeiid land to the tenant or occupier or other person liable to p«y or
pend mOTtI account f or the rents and profits thereo f all the power s and remedies of the
^2ndi^*** i^ortgagor or encumbrancer in regard to receipt ana recovery of and giving
Mortga^'i disclmrges for such rents and profits shall be suspended and jbransferred to
bS^^ute *^® ^^^ mortgagee or encumbrancee until such notice be withdrawn or the
difloharges mortgage or encumbrance shall be satisfied and a discharge thereof duly
registered and in every such case the receipt in writing of the mortgagee or
encumbrancee shall be a sufficient discharge for any rents and profits therein
expressed to be received and no person paying the same shall be bound to
enquire concerning any default or other circumstance affecting the right of
the person giving such notice beyond the fact of his being duly registered as
mortgagee or encumbrancee of the land. Provided that nothmg herein
contioned shall interfere with the effect of any rule order or judgment of the
Supreme Court in regard to the payment of rent under the special circum-
stances of any case nor shall prejudice any remedy of the mortgagor or
, * encumbrancer against the mortgagee or encumbrancee for wrongful entry or
' for an account. (Grey v. Watwn, 152; Kinff v. Siuart, 164. Z. 100,
118 ; Q. 61-62, 57 ; S. 134, 139 ; T. 62-58 ; V. 66-91.)

of*2KSSid 60. Any mortgagee or encumbrancee of leasehold land under the pro-

entering into visions of this Act or any person claiming the said land as a purchaser or
fiablTto*'* otherwise from or under such mortgagee or encumbrancee after entering into
lessor possession of the said land or the rents and profits thereof shall during such

possession and to the extent of any rents and profits which may be received
oy him become and be subject and liable to the lessor of the said land or the
person for the time being entitled to the said lessor's estate or interest in the
said land to the same extent aa the lessee or tenant was subject to and liable
for prior to such mortgagee encumbrancee or other person entering into
possession of the said land or the rents and profits thereof. (^King v. Stuart,
164 ; Bo99 v. Victorian Fermanent Building Society, 180. T. 62-116).

£ort**^**' 61. TJpon the production of any memorandum of mortgage or of
uid £?am. encumbrance having thereon an indorsement signed by the mortgagee or
bmnces encumbraucoe and attested by a witness discharging the land estate or
interest from the whole or part of the principal sum or annuity secured or
discharging any part of the land comprised in such instrument from the
whole of such principal sum or annuity the Eegistrar- General shall make an
entry in the Beffister Book noting that such mortgage or encumbrance is
discharged whoUy or partially or that part of the land is discharged as
aforesaid as the case may re<^uire and upon such entry being so made the
estate or interest or the portion of land mentioned or referred to in such
endorsement as aforesaid shall cease to be subject to or liable for such
principal sum or annuity or as the case may be for the part thereof noted in
such entry as discharged. {McCartney v. Kesterton, 17. Z. 108 ; Q. 61, 63 ;
S. 143, 147 ; T. 62-59, 61 ; Z. 108.)

Mt^Lotion ®^* ^P^^ proof of the death of the annuitant or of the occurrence of

of wmuity the event or circumstance upon which in accordance with the provisions of
any memorandum of encumbrance the annuity or sum of money thereby secured
shall cease to be payable and upon proof that all arrears of the said annuity
and interest or money have been paid satisfied or discharged the Begistrar-
G^neral shall make an entry in the Begister Book noting that such annuity
or sum of money is satisfiea and discharged and shall cancel such instrument



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NEW SOUTH WALES EEAL PEOPBETY ACT— No. 1. 19

and upon such entry being made tbe land estate or interest shall cease to be
subject to or liable for such annuity or sum of money and the Eegistrar-
General shall in any or either such case as aforesaid indorse on the grant
certificate of title or other instrument eridencing the title of the mortgagor
or encumbrancer to the land estate or interest mortgaged or encumbered a
memorandum of the date on which such entry as aforesaid was made by him
m the Eegister Book wheneyer such grant certificate of title or other instru-
ment shall be presented to him for that purpose. (T. 60. 62.)

63. In case the registered mortgagee shall be absent from the Colony ^^^j^^j
and there be no person authorised to give a receipt to the mortgagor for bep?dto
the mortgage money at or after the date appointea for the redemption of TraMomrif
any mortgage it shtdl be lawful for the Colonial Treasurer to receive such F^'^j^
mortgage money with all arrears of interest then due thereon in trust for tnm tiM^
the mortgagee or other person entitled thereto and thereupon the interest ^^J^^JJ^
upon such mortgage shall cease to run or accrue and the Eegistrar-General di^^Srg^.
snail upon the receipt of the said Treasurer for the amount of the said
mortgage money and interest make an entry in the Eegister Book
discharging such mortgage stating the day and hour on which such entry is

made and such entry shall be a valid discharge for such mortgage and shall
have the same force and efiect as is hereinbefore given to a like entry when
made upon production of the memorandum of mortgage with the receipt of
the mortgagee and the Eegistrar-G-eneral shall indorse on the grant
certificate of title or other instrument as aforesaid and also on the
memorandum of mortgage whenever those instruments shall be brought to
him for that purpose the several particulars hereinbefore directed to be
indorsed upon each of such instruments respectively. (MoArtney v.
Keiterton, 17. Z. 108, 109 j Q. 66-100, 61-64; S. 102, 146; T. 62-61,
74-28, 29.)

64. In every memorandum of mortgage there shall be implied a^inst ^J^f^^^
the mortgajgor a covenant that he will repair and keep in repair all buildings ere^ memo-
or other improvements erected and made upon the land and that thejJJJ^^'
mortgagee may at all convenient times until such mortgage be redeemed be

at libeiHty with or without surveyors or others to enter into and upon such
land to view and inspect the state of repair of such buildings or improve-
ments. {Buehnall v. Beid, 146. Z. 96; Q. 61-69; S. 180; T. 62-62; V.
66-90.)

65. Such of the covenants hereinafter set forth as shall be expressed Abbramted
in any memorandum of lease or mortgage as to be implied shall if expressed i^^for
in the form of words hereinafter appointed and prescribed for the case of ©oTeMnta
each such covenant respectively be so implied as fully and effectually as if

such covenants were set forth fully and in words at length in such
instrument that is to say the words " will insure " shall imply as follows —
that the lessee or mortgagor will insure and so long as the principal money
and interest secured by mortgage shall remain unpaid or the term expressed
in the said mortgage or lease shall not have expired will keep insured in the nune
name of such mortgagee or lessor in some public insurance office to be
approved by such mortgagee or lessor against loss or damage by fire to the
full amounts specified in such instrument or if no amount be specified then
to their full value all buildings tenements or premises erected on such land
which shall be of a nature or kind capable of being insured against loss or
damage by fire and that the mortgagor or lessee will at the re<]uest of the
mortgagee or lessor hand over to and deposit with him the policy of every



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20 NEW SOUTH WALES BEAL PEOPBETY ACT— No. 1.

such insuraDce and produce to him the receipt or receipts for the annual or
other premiums payable on account thereoi and also that all moneys to be
received under or by virtue of any such insurance shall in the event of loai
or damage by fire be laid out and expended in making good such loss or
damage Provided also that if defamt shall be made in the observance or
performance of the covenant last above mentioned it shall be lawful for the
mortgagee or lessor without prejudice nevertheless to and concurrently with
the powers granted him by his memorandum of mortgage or lease or by this
Act provided to insure such building and the costs and charges of such
insurance shall until such mortgage be redeemed or such lease shall have
expired be a charge upon the said land recoverable in like manner as rent or
Paint out. interest in arrear The words " paint outside every alternate year " shall
■**^ imply as follows, viz. — and also will in every alternate year during the

currency of such lease paint all the outside woodwork and ironwork
belonging to the hereditaments and premises mentioned in such lease with
two coats of proper oil-colours in a workmanlike manner The words
Pamtand " paint and paper inside every third year '* shall implv as follows, viz. — and
pftperinnde ^j j^ evory third year during the currency of such lease paint the inside
wood iron and other works now or usually painted with two coats of proper
oil-colours in a workmanlike manner and also re-paper with paper or a
quality as at present such parts of the said premises as are now papered and
also wash stop whiten or colour such parts of the said premises as are now
Fenoe whitened or coloured respectively The words " will lence " shall imply
as follows viz. — and also will during the continuance of the said
lease erect and put up on the boundaries of the land therein mentioned
or upon such boundaries upon which no substantial fence now exists a
Cultivate good and substantial fence The word "cultivate" shall imply as
follows, viz. — and will at all times during the said lease cultivate use and
manage all such parts of the land therein mentioned as are or shall be
broken up or converted into tillage in a proper and husbandmanlike manner
and will not impoverish or waste the same The words " that the lessee will
Not use as a not use the said premises as a shop *' shall imply as follows, viz. — and also
^°^ that the said lessee will not convert use or occupy the said hereditaments

and premises mentioned in such lease or any part thereof into or as a shop
warenouse or other place for carrying on any trade or business whatsoever
or permit or suffer the said hereditaments and premises or any part thereof
to De used for any such purpose or otherwise tnan as a ^^ate dwelling-
house without the consent in writing^ of the said lessor The words " wUl
OfltenaiTe not Carry on offensive trades " shall implj as follows — and also that no
^ noxious noisome or offensive art trade business occupation or calling shall
at any time during the said term be used exercised carried on permitted or
suffered in or upon the said hereditaments and premises above mentioned
and that no act matter or thing whatsoever shall at any time during the said
term be done in or upon the said hereditaments and premises or any part
thereof which shall or may be or grow to the annoyance nuisance grievance
damage or disturbance of the occupiers or owners of the adjoining lands
Asrignor and hereditaments The words '* will not without leave assign or sublet"
■*^^* shall imply as follows, viz. — ^and also that the said lessee shall not nor will
during the term of such lease assign transfer demise sublet or set over
or otherwise by any act or deed procure the lands or premises therein
mentioned or any of them or any part thereof to be assigned transferred
demised sublet or set over unto any person whomsoever without the consent
in writing of the said lessor first had and obtained The words " will not



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NEW SOUTH WALES EEAL PEOPEETY ACT— No. 1. 21

cut timber " shall imply as follows — and also that the said lessee shall not Ont timber
nor will cut down feu injure or destroy any growing or Hying timber or
timber-like trees standing and being upon the said hereditaments and
premises above mentioned without the consent in writing of the said lessor
The words " will carry on the business of a publican and conduct the same Baiineas of
in an orderly manner" shall imply as follows, viz. — ^and also that the said 5°^^^"*
lessee will at all times during the currency of such lease use exercise and manner
carry on in and upon the premises therein mentioned the trade or business
of a licensed victualler or publican and retailer of spirits wines ale beer
and porter and keep open and use the messuage tenement or inn and
buildings standing and bein^ upon the said land as and for an inn or
public-house for the reception accommodation and entertainment of
travellers guests and other persons resorting thereto or frequenting the
same and manage and conduct such trade or business in a quiet and orderly
manner and will not do commit or permit or suffer to be done or committed
any act matter or thing whatsover whereby or by means whereof any licence
shall or may be forfeited or become void or liable to be taken away
suppressed or suspended in any maimer howsoever The words "will
apply for renewal of licence" shall imply as follows, viz.— and also shall Apply for
and will from time to time during the continuance of the said term at the Hecnoe^ ^^
proper times for that purpose apply for and endeavour to obtain at his
own expense all such licences as are or may be necessary for carrying on the
said trade or business of a licensed victualler or publican in and upon the
said hereditaments and premises and keeping the said messuage tenement
or inn open as and for an inn or public-house as aforesaid The words "will
facilitate the transfer of licence *' shall imply as follows, viz. — and also Fadutate
shall and will at the expiration or other sooner determination of the^^^f*
said lease sign and give such notice or notices and allow such notice or
notices of a renewal or transfer of any licence as may be required by law
to be affixed to the said messuage tenement or inn to be thereto affixed and
remain so affixed during such time or times as shall be necessary or
expedient in that behalf and generally to do and perform all such further
acts matters and things' as shall be necessary to enable the said lessor or
any other person authorised by him to obtain the renewal of any licence
or any new licence or the transfer of any licence then existing and in
force. (Bucknall v. Beid, 145. S. 266 ; Q. 61-73, 76 ; T. 62-66 ; V.
66-139, 92: Z. 167,62-65.) No notice of

^ tniBtotobe

66. The Eegistrar-General shall not make any entry in the Eegister ^^^^^
Book of any notice of trusts (a) whether expressed implied or constructive Book
but trusts may be declared by any instrument or deed which instrument or ^) See 4i
deed may include as well lands under the provisions of this Act as land J^;u°' *®'
which is not under the provisions thereof Provided that the description of instniment
the several parcels of lands contained in such instrument or deed shall ^MtJmiy
sufficiently custinguish the land which is under the provisions of this Act be depoeited
from the land which is not under the provisions thereof 'and a duplicate or r^i^ered
an attested copy of such instrument may be deposited with the Eegistrar- r^^^^^
General for saie custody and reference but shall not be registered {h) (T. vfo.,No.i8,
62-66 ; Z. 122 ; Q. 61-80 ; S. 161, 162 ; V. 66-38.) •~- ^*

67. Upon the transfer of any land, estate or interest under the provisions Tirorthip'
of this Act to two or more persons as joint proprietors to be held by them as JJJJ^^
trustees it shall be lawful for the transferor to insert in the memorandum be barred
of transfer or other instrument the words " no survivorship " and the jSS^^

order



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22 NEW SOUTH WALIS EEAL PEOPBBTT ACT— No. 1.

Bedstrar-G^eneral eball in such case include Buch words in the memorial of
such instrument to be entered by bim in tbe Eegister Book as bereinbefore
directed and sball also enter tbe said words upon any certificate of title
issued to sucb joint proprietors pursuant to sucb memorandum of transfer.
And any two or more persons registered as joint proprietors of any land, estate
or interest under tbe provisions of tbis Act beld by tbem a^ trustees may by
writing under tbeir band autborise tbe Begistrar-C^neral to enter tbe words
" no Buryivorsbip " upon tbe grant certificate of title or otber instrument
evidencing tbeir title to sucb estate or interest and also upon tbe duplicate
of sucb instrument in tbe Begister Book or filed in bis office and after sucb
entry bas been made and signed by tbe* Begistrar-General in eitber sucb
case as aforesaid it sball not be lawful for any less number of joint proprie-
tors tban tbe number tben registered to transfer or otberwise deal witb tbe
said land estate or interest witbout obtaining tbe sanction of tbe Supreme
Court or a Judge tbereof . (S. 168.)

p^^id'** ®®* ^®^o^ making any sucb order as aforesaid tbe Court or Judge
before ozder sball if it Seem requisite cause notice of intention so to do to be ad-
yertised once in tbe Gazette and tbree times in at least one newspaper pub-
lisbed in Sydney and sball appoint a period of time witbin wbicb it sball be
lawful for any person interested to sbow cause wby such order should not
be issued and thereupon it sball be lawful for the said Court or Judge in
sucb order to give directions for the transfer of such land estate or interest
to any new proprietor or proprietors solely or jointly witb or in tbe place of
any existing proprietor or to make such order in tbe premises as the Court
thinks just for the protection of the persons beneficially interested in such
land estate or interest or in the proceeds tbereof and upon such order being
deposited with the Begistrar-G^neral be shall make such entries and perform
such acts as in accordance witb tbe provisions of this Act may be necessary
for tbe purpose of giving effect to such order.

^^•« of 69. The rc^tered proprietor of any land estate or interest under tbe

"*^ provisions of tbis Act may autborise and appoint any person to act for bim
or on his behalf in respect to tbe transfer or other ciealing with such land
estate or interest in accordance with the provisions of this Act by executing
a power in any form heretofore in use for the like purpose or in form I of
tbe Schedule hereto and such power of attorney or a duplicate or certified
copy thereof shall be filed in tne office of the Kegistrar-G^neral who shall
enter in tbe Begbter Book a memorandum of the particulars therein con-
tained and the date and hour when it was so filed.

Begistntion 70. The Registrar- Q-eu end upon tbe application of any redstered pro-

S^tSring' prietor of land under tbe provisions of this Act shall grant to such proprietor
^^J^g^ a registration abstract in the form K of the Schedule hereto enabling him to
ignite of tbe transfer or otherwise deal with his estate or interest in such land at any
ProTinoe place without the limits of the Colony and shall at tbe same time enter in
the Begister Book a memorandum recording tbe issue of such registration
abstract and shall indorse on the grant certificate of title or other instru-
ment evidencing the title of such applicant proprietor a like memorandum
and from and after the issuing of any such registration abstract no transfer
or otber dealing in any waj affecting tbe estate or interest in respect of
which such registration abstract is issued sball be entered in tbe Bi!egister
Book until such abstract sball have been surrendered to the Begistrar-
• General to be cancelled or the loss or destruction of such abstract proved
to his satisfaction. (Z. 129 ; Q. 61-8, 101, 105, 106 ; T. 62-71-78 ; V. 66-122.)



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NEW SOTJTH WALES EEAL PEOPEETT ACT— No. 1. 28

71* WheneTer any transfer or other dealing is intended to be trans- Mod* of
acted under any such registration abstract a memorandum of transfer or SSJJ^"*
such other instrument as the case may require shall be prepared in duplicate regiitration
in form hereinbefore appointed and shall be produced to some one of the * '^"^
persons hereinafter appointed as persons before whom the execution of in-
struments without the limits of the Colony may be proved and upon me-
morial of such instrument being entered upon the registration abstract and
authenticated by the signature of such authorised person as aforesaid in
manner hereinbefore directed for the entry of memorials in the Ee|;ister
Book such instrument shall be held to be registered and such transfer or
other dealing shall be as yalid and binding to all intents as if the same had
been entered in the Eegister Book by the Eegistrar-G-eneral and whenerer a
memorial of any instrument wbich has not been indorsed upon the instru-
ment eridencing title to the estate or interest intended to be dealt with has
been entered upon the registration abstract such authorised person as afore-
said shall record the like memorial on the duplicate grant certificate of title
lease or other instrument eridencing title as aforesaid and the certificate of
registration indorsed on the instrument of which the memorial has been so
entered and signed by .such authorised person and sealed with his seal shall
be received in all Courts of law or equity as conclusive evidence that such
instrument has been duly registered.

72. Upon the delivery of any registration abstract to the Eegistrar- PK>oe«^g
General he shall record in the Eegister Book in such manner as to preserve S^^ry of
their priority the particulars of every transfer or other dealing recorded Jjjjjjjfio"
thereon and shall file in his office the duplicates of every memorandum of the Begts-
transfer or other instrument executed thereunder which may for that pur- *'»-<*<»°«'^
pose be delivered to him and shall cancel such abstract and note the fact of

such cancellation in the Eegister Book and if a freehold estate in such land
or in any part thereof be transferred the grant or certificate of title shall
be delivered up to the Eegistrar-Qeneral who shall thereupon proceed as
hereinbefore directed for the case of the transfer of an estate of freehold*

73. Upon proof at any time to the satisfaction of the Eegistrar-G-eneral ^J^**^^"*
that any registration abstract is lost or so obliterated as to oe useless and ngistration
that the powers thereby given have never been exercised or if they have Jj^*'^* **
been exercised then upon proof of the several matters and things that have

been done thereunder it shall be lawful for the Eegistrar- General as cir-
cumstances may require either to issue a new regis^ation abstract as the
case may be or to make such entries in the Eegister Book or do such acts
as might have been made or done if no such loss or obliteration had taken
place. (Miidgtoay v. Davy and Buick, 1 ; Barker v. Weldy SI; re Beattie,



Online LibraryAustraliaThe land transfer laws of Australasia: being the full text with side notes ... → online text (page 11 of 83)