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

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hmd shall concur in such application : By any person claiming a life estate
in possession, not bein^ a lease for a life or lives : Provided that all persons
claiming to be beneficially entitled in reversion or remainder shall concur
in such application : Bv any person having power legally or equitably to
di^se of the fee-simple in possession, but if subject to the consent of
any other person, then with such consent : {^Qr\ffin v. Dwm, 8 ; Warner v.

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Dove, 37 ; re David Le Compte, 39 ; re Dr. O, Quinn, 40 ; Bmith y. Davy, 135 ;
Finnoran v. Weir, 136 ; re Fykete, 171 ; Miller v. Stewart, 172 ; (N. 13 ; V.
66-18, 54 ; Q. 83, 88, 61-36 ; T, 62-89, 86-16.) By any person or body
corporate holding any land as a public reserre, but in such case subject
to the trusts affecting such reserve : Bj the guardian of any infant, or
the Committee or guardian of any lunatic or person of unsound mind,
making such application in the name of such infant, lunatic, or ^rson of
unsound mind : By any agent holding a power of attorney authorising the
sale of a freehold estate in any land of an absent proprietor, and making
such application in the name of such proprietor, unless such power shall
expressly prohibit his so doing. (National Bank y. National Mortgage and
Agency Oompany, 12 ; ex parte Bowan, 14.) But no application shall be
received — From any person claiming to be entitled to an undivided share of
any land, unless the persons who shall appear to be entitled to the other
undivided shares of the said la^d shall join in such application with a view
to bringing the entirety under this Act ; nor {ex parte Bowman, 2) Prom the
mortgagor of any land, unless the mortagee shall consent to such application ;
nor Prom the mortgagee of any land, except in exercise of a power of sale
contained in the mortgage ; nor (St. George v. Burnett, 57 ; ex parte Beck, 59 ;
Jonei V. Sellick, 78 ; Beg. v. Tideman, 199 ; Van Damme, v. Bloxam, 105 ;
Mall V. Loder, 158a ; re O'Gonnell, 179. N. 88 ; S. 244, 245 ; V. 66-17-6 ;
Q. 61-3,47 ; T. 62-3, 89 ; V. 17, 66-54, 6.)

^^PP^JJJ ^ 19. Every applicant shall, when making his application, surrender to
titie^eeds the Eegistrar all instruments in his possession or under his control con-
stituting or in any wav affecting his title, and shall furnish a Rchedule of
such instruments, and also, if required, an abstract of his title, and shall
make and subscribe a declaration of the truth of the statements in such
application, and shall append to such application a plan of the land
applied for, showing the boundaries and relative position thereof. (Sharps
V. Hadley, 3 ; Eagles v. Blain, 80 ; Kirkham v. Carpenter, 111 ; Davidson
V. Brown, 183 ; Stevens v. Williams, 186. N. 14 ; Q. 61, 17 ; S. 29 ; T. 62,
15 ; V. 66, 55.)

o^s^uSJ. ^^* ^P^^ *^® receipt of such application the Eegistrar shall cause the

on »pp Oft. ^^^ ^£ ^^^ applicant to be examined and reported upon by the Examiner of

Titles, and shall thereafter take into consideration such application, with the

report of the Examiner, and shall confer with such Examiner thereon. (N.

5; V. 66-7.)

ifanneoM. 21. If it shall appear to the satisfaction of the Eegistrar and

oopiSI^ Examiner that the land m respect of which such application is made is held

Se «Sett^ by the applicant for the estate or interest specified in such application, and

'^'^^ that all persons interested other than as lessees under a lease for yean

are parties to the application, the Eegistrar shall cause notice of such

application to be advertised in the Gazette and in one or more newspapers

published in the district, and shall in such advertisement limit and appoint

a time, not less than one month from the publication thereof in the Gastetie,

within which caveat may be lodged foroidding the bringing of such land

under this Act. (N. 11, 5, 78, 9, 12 ; Q. 61, 11, 5 ; S. 191, 10, 220-5 ; T.

62, 11, 5 ; V. 66, 21, 22, 23, 24, 116.)

Vai>piioant 22. If it shall appear that the applicant is the original grantee from

^Mto^p. ^^ Crown, and that no instrument, matter, or thing affecting the title to

pliMtion to the land other than the Crown grant has been registered, the Eegistrar and

^^^^with Examiner may dispense with such advertisement, and in such case the

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Be^trar may proceed forthwith to bring the land onder this Act hj
issuing to the applicant, or to such person as he shall hj writing under his
hand direct, a certificate of title in the form B in the Second Schedule. (Be
Ekapman, 41. S. 32, 88.)

23. If it shall appear to the Registrar and Examiner that any person itneoew^
interested (other than as a lessee under a lease for years) is not a party to JSJ^^**
such application, or that the evidence adduced by the applicant in support Bagistmr
of his claim or of any matters which he is required to prove is deficient in ^^u"t?Sli.
any essential particular, the Registrar and Examiner may either reject such or may order
application, or at discretion may limit a time, by advertisement as aforesaid, noUces "^
within which caveat may be lodged forbidding the bringing of such land

under this Act, and in such latter case may direct that such notices shall be
served by the applicant upon such persons and in such form and manner as
the Registrar and Examiner shall deem necessary, and that, in addition to
the advertisements prescribed in section twenty- one, notice of such applica-
tion be advertised at the cost of the applicant in any Gazette or newspaper
published in the Colony or elsewhere. (Featherstone v. Hanlon^ 4 ; Oriffin
V. Dwrn^ 8 ; Saunders v. Oahoty 16 ; Chomley v. Mrebaee, 21 ; Coleman and
Cfkark T. Biria, 46 ; Van Damme v. Bhxam^ 105 ; Kirkham v. Julien, 109 ;
t)ranklin v. Ind^ 156 ; Shaekell v. Lindsay^ 174 ; Boa v. Victorian Permanent
BiUlding Society ^ 180. See note to See. 20, ante.)

24. The Registrar shall, in addition to the notices aforesaid, cause Notice ofap.
notice of every such application as last mentioned to be posted in a^ep^t?/^
conspicaouB place in the Land Registry Office of the district, and in such f^l.?^";
other places as he may deem expedient, and shall forward by roistered dStriot ^ ^
letter tiirough the post office a copy of such notice addressed to each of the
persons (if any) stated by the applicant to be in occupation of such land, or

to be occupiers or proprietors of land adjoining. (N. 18 ; Q. 61-21 ; S. 35 ;
T. 62-19.)

26. If, at the expiration of the time limited in respect of any applica- ^^J^^^^
tion as aforesaid, it shall appear to the Registrar and Examiner that all istru mayf
neceflbary notices have been given, and that no caveat has been lodged, and ^'tiJ^f'*"
if no sufficient cause to the contrary shall otherwise appear, the Registrar bring lana
shall proceed to bring the land described in such application under this ™^®' ^®*
Act, by issuing to the applicant, or to such person as he shall by writing
under nis hand direct, a certificate of title in the Form B aforesaid.

26. If 9 however, it shall appear to the Registrar and Examiner, at the in case of
expiration of the time limited as aforesaid, that there has been a failure in l^STtiodoo,
the service of any notice, and that such service is essential, the Registrar time m^ bo
Mid Examiner may either reject the application, or may limit and appoint a ^^^^ ^
fnrther time within which caveat may be lodged as aforesaid, and upon the
expiration of such term, and upon proof of service of such notice, may, if

no caveat had been lodged, bring the land under this Act by issuing a
certificate in manner aforesaid. (Moyle v. CUbhi, 120.)

27. The applicant may, with consent of the person (if any) in whose Application
name the certificate of title has been directed to be issued, withdraw his ^aVn'b^^ '
application at any time prior to the issuing of the certificate, and the consent of
Registrar shall in such case return to him, or to the "person (if any) notified Fntere^ted
in such application as having a lien thereon, all instruments of title deposited

by such applicant in support of his appication. {OrHHn v. Bunn^ 8. N.
14, 24 ; Q. 61-29, 77-9 j S. 41 ; T. 62, 25, 19 ; V. 85-64, 66-26.)

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On iMoa of 28* Upon issuinc a certificate of title bringing land under tliis Act, the

^a^^ ^ Eegifltrar snail caned bj stamp or otherwise the conveyance or other

Tioaititij. instrument through which the applicant derives his title; but, if such

^^^^dL^ instrument relates to or includes any property other than the land included

"^"^Jj in such certificate of title, the Registrar snail, by indorsement thereon, cancel

«ww" ^j^^ same in so far only as relates to the land included in such certificate,

and such instruments shall for all other purposes remain in full force and

effect. {Mudgway and Davy v. Buick, 1.) All instruments of title relating

exclusively to the land shall be retained by the Registrar, and no person

shall be entitled to the production thereof except upon the written order of

the applicant, or of some person claiming through or under him, or upon

the order of the Supreme Court or a Judge thereof. (Be Oraig, 76. N.

78, 5 ; V. 85, 37, 39 ; S. 60.)

2lw not^ex^ 29. The reversion expectant upon any lease shall not be deemed to have

tinniiihed bccu extinguished in consequence oi the land whereof such lease has been

ilind'mSe? granted having been brought under this Act, and the person appearing upon

Act the Register as seised of the land described in such lease shall be held in

every Court of law and equity to be seised of the reversion expectant upon

any such lease, and to have all powers, rights, and remedies to which a

reversioner is \>j law entitled, and shall be subject to all covenants and

conditions therein expressed to be performed on uie part of the lessor. (S.

46 ;T. 62-30; V. 66,51.)

Be«Mnitioii SQ. It shall uot be necessary for any Registrar of Deeds to register any
gnmttmder Crowu grant that may be transmitted to him for registration under " The
t^^T^ Deeds Registration Act, 1868," pending an application to bring the land
Si n^/ comprised therein under this Act. (S. 112, 214 ; T. 62-93, 86-9 ; V. 66-
SSbioSSxt^^. SeenotetoSec.Si.pct.)

under Act


Begittrw to 31.. Each Registrar shall keep a book to be called the ** Register," and
keep Bcgii- g^^^jj bind up therein duplicates of all grants of land and of all certificates of
title to land within his district, and each grant and certificate of title ehall
constitute a separate folium of such Register, and the Registrar shall record
thereon the particulars of all instruments, dealings and other matters by this
Act required to be registered or entered on the Register affecting the land
included under each such grant or certificate of title distinct and apart.
(Mudgway v. Davy and Buick, 1 ; Barker v. Weld^ 31 ; re Beattie, 53 ; re
Woods, 95 ; Buckett v. Knohhe, 168.)

on^Md 32. Every grant and certificate of title shall be deemed and taken to be

oftitieregifl- registered under the provisions and for the purposes of this Act so soon as

JJJJ^jJj"^ the same shall have oeen marked by the Registrar with the folium and

Register volumc as embodied in the Register, and every memorandum of transfer or

rejSS?^** other instrument purporting to transfer or in any way to affect land under

when memo- the provisious of this Act shall be deemed to be so registered so soon as a

entered^' memorial thereof as hereinafter described shall have been entered in the

B«giiter Register upon the folium constituted by the existing grant or certificate of

Deflnition of tiUo of sucQ land, and the person named in any grant, certificate of title, or

propJStor o*^®' instrument so registered as seised of or taking any estate or interest

shall be deemed to be tne registered proprietor thereof. (Hall v. Loder^ 158.)

(N. 8, 84; Q. 61-3, 34, 43, 77-14; T. 62-3, 34, 39; V. 66, 4,41,61 ; 8. 67,

98. See note to See. 30 ante,)

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33. Except as hereinafter otherwise provided, every grant or other inrtrmnonta
instrument presented for registration shall be in duplicate and shall ^c»t? ^^'
be attested by a witness and shall be registered in the order of time

in which the same is produced for that purpose, and instruments inBtmmaita
registered in respect to or affecting the same estate or interest •^^^'^^
shall, notwithstanding any erpress implied or constructive notice, Mooring to
be entitled in priority the one over the other according to the date JjJi^on^"
of registration and not according to the date of each instrument itself, and
the Registrar upon registration thereof shall file one original in his office and
shall deliver the other to the person entitled thereto, and so soon as regis-
tered eveiy instrument drawn in any of the forms provided in the Schedule
hereto or in any form which for the same purpose may be authorised in con-
formity with the provisions of this Act shall, for the purposes of this Act, be
deemed and taken to be embodied in the Register as part and parcel thereof
and such instrument, when so constructively embodied and stamped with the
seal of the Registrar, shall have the effect of a deed duly executed by the
parties signing the same. Mudgway v. Davy and Buick, 1 ; Sharpe v. Hadley,
3 ; D'Albrdyhill v. D'Albrdyhill, 82 ; Wildash v. Rutcheson, 132. N. 35 ;
S. 56, 58 ; T. 62-35 ; V. 66, 37.)

34. Every memorial entered in the Register shall state the nature of J^^**^
the instrment to which it relates, the day and hour of the production of

such instrument for registration, and the names of the parties thereto, and
shall refer by number or symbol to such instrument, and shall be signed by
the Registrar. {Aulrey v. Scott, 79. N. 37 ; S. 51 ; T. 62-37 ; V. 66-40.)

35. Whenever a memorial of any instrument has been entered in the J^*^JJ5ed*
fiegister the Registrar shall (except m the case of transfer or other dealing on SfpUcJte
indorsed upon a memorandum of lease, or mortgage, as hereinafter provided) gjfj^ £itru-
record the like memorial on the duplicate grant, certificate of title, lease, or ment
other instrument evidencing title to the estate or interest intended to be

dealt with, or in any way affected, unless the Registrar shall, as hereinafter
provided, dispense with the production of the same, and the Registrar shall
mdorse on every instrument so registered a certificate of the date and hour
on which the said memorial was enteired in the Register, and shall authenti-
eate each such certificate by signing his name and affixing his seal thereto.
{See note to See. 30, ante.) Such certificate shall be received in all Courts as Certifloateto
conclusive evidence that such instrument has been duly registered. (JEa: of regis^
parte Bowanj 34 ; Chomley v. Firebrace, 21 ; Wilkinson v. Broivn, 121 ; Uquit- *^*>°
able Building Society v. Boss, 140. T. 62-38 ; V. 66-41.)

36* No instrument shall be effectual to pass any estate or interest in ^^^'^^^^
any land under the provisions of this Act, or to render such land liable as ^ta entry
security for the payment of money, but, upon the registration of any instru- 5J4^,
ment in manner hereinbefore prescribed, the estate or interest specified in
such instrument shall pass, or, as the case may be, the land shall become
liable as security in manner and subject to the covenants, conditions, and
contingenciee set forth and specified in such instrument, or by this Act de-
clared to be implied in instruments of a like nature ; and should two or
more instruments executed by the same proprietor, and purporting to transfer
or incumber the same estate or interest in any land, be at the same time
presented to the Registrar for registration and indorsement, he shall register
and indorse that instrument under which the person claims property, who
shall present to him the grant or certificate of title of such land for that
purpose. {OhishoUn v. Capper, 86. N. 33-35 ; Q. 61-7, 43 ; S. 52, 67 ; T. 62-
8; 7.66-47,78-2.)

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bforaai 37. No Begistrar shall register anj instrument purporting to transfer

not'tobo"*' or otherwise to deal with or affect any estate or interest in land under the
registered proyisious of this Act, except in the manner herein provided, nor unless
such instrument he in accordance with the provisions hereof.

Begistrar 38. The Eogistrar and Examiner, in case thej shall see reasonable cause

^^du^."* ^^^ 8^ doing, may dispense with the production of any grant, certificate of

oate insiru- title, leaso, or other instrument for the purpose of entering the memorial

Mrti^^asee by this Act required to be entered upon the transfer or other dealing with

land within his district and under the provisions of this Act ; and upon the

registration of such transfer or other dealing, such Registrar shall notify in

the memorial in the Register Book of his district that no entry of such

memorial has been made on the duplicate grant or other instrument, and

such transfer or other dealing shall thereupon be as valid and effectual as if

such memorial had been so entered. Pro Tided always that before registering

such transfer or other dealing the Registrar shall give at least fourteen days'

notice of his intention to register such dealing in the OazetU, and in at least

one newspaper published in the district. {Wilkinsan v. Broum^ 121', re

Skerrett, 177a. S. 108 ; T. 86, 33 ; V. 86-61.)

^^«^®<J 39. The Re^strar, upon payment of the prescribed fee, shall furnish to

^^t^to any person applying for the same a certified copy of any registered instru-
be oTidenoe meut affecting land within his district, and every such certified copy signed
by him, and sealed with his seal, shall be received in evidence for all pur-
poses for which the original instrument might be put in evidence. (N. 102-
30 ; S. 47 ; T. 62-105 ; V. 66, 31-141.)

S^MTfo? ^^* "^y person may, upon payment of the prescribed fee, have access

Beoroh ^ to the Re^ster for the purpose oi inspection during the hours and upon the
days appointed by regulation under this Act.

JSt^bir* ^^« ^^ Registrar shall register any instrument liable to stamp duty

reffisterod uuloss the Same shall purport to have been duly stamped, but no registration
S^^°^y shall be invalidated by reason of any error in this respect (Q. 78-80.)

Pboyisionax Regibtbatiok.
Unw Eegis- 42, Until a folium of the Register has been duly constituted for any
8titnteJ,^d land Under this Act, all dealings, memorials, and entries affecting such land
iSdSiSir" ^^*^^ ^® provisionally registered as hereinafter provided, that is to say, — For
r^tere^ the purposcs of provisional registration, and for the recording of all dealings
and eniiies, the Land Revenue Receiver's receipt, or the order of the Native
Land Court, declaring that such land shall be held in freehold tenure, shall
take the place of a Crown gjent. Every such receipt or order shall be issued
in duplicate, and it shall be the duty of the person issuing the same to for-
ward one duplicate to the Registrar of the district in which the land is
situate. The Registrar shall embody all such duplicates in a book herein-
after called *^ the Provisional Register," and each receipt or order shall form
a separate folium thereof, and shall be numbered accordingly, and when so
numbered shall be deemed duly registered. (S. 114.)

^dSi"^! 43, So soon as the Register of any land is finally constituted the Re-
stftatel,°**°' gistrar shall close the Provisional Register as to such land, and shall transfer
I^JjJjJ'J^ to the Register the record of all memorials and entries affecting such land
beoioBodand 80 far as may be necessary to preserve existing interests ; and shall also
SSaforrod rocord the same on the duplicate grant, and such memorials and entries and
to Beguter the dealings to which they relate shall thereafter take effect as if the same

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had been originally entered in the Begister, and ever j dealing the memorial
or entry whereof has been either originally entered on or has been trans-
ferred to the Eegister in manner aforesaid shall be deemed to be finally

44. So long as any land remains on the Proyisional Begister no certi- Memorials
flcate of title other than a certificate in lieu of grant shau be issued in wM^from'"
respect thereof, but eyery entry on the Proyisional Register, if purporting ^Tj^**"**
to be duly made and signed, shall be receiyed in all Courts of law ana equity beseemed
as eyidence of the particulars therein set forth, and shall, as against the J^****^
person named in the originid receipt or order of Court and all persons
claiming through, under, or in trust for him, be conclusiye OTidence tnat the
person named in such entry is seised or possessed of the estate or interest

of which he is expressed to be the registered proprietor.

45. Subject to any special proyisions herein contained, all proyisions PjoWiionsof
of this Act shall, so far as the circumstances of the case will admit, apply to toprol*^^^
land on the Provisional Begister, and to the registration of instruments and JjJJJJJition
other matters affecting the same, saye that the estate or interest of a pro- '
prietor of any estate or interest on the Provisional Begister shall be inde-
feasible only against the person named in the original receipt or order, and

all persons claiming through, under, or in trust for him.

46. After the land has been transferred from the Provisional Begister No dealings
aa aforesaid, no dealing having the effect of creating any new estate or tared nn^'
interest shall be registered until all fees for the issue and registration of the g^™®"* ^^
Crown grant or certificate of title and for contribution to the Assurance

Fund shall haye been paid : — Provided that where a part only of the land
in any grant or certificate shall be dealt with the fees payable in respect
thereof, so far as such fees are capable of apportionment, shall be appor-
tioned upon such evidence as the Begistrar shall deem sufficient for that
purpose, and the payment of the amount assessed shall discharge the land in
respect whereof such assessment is made. (N. 42; Q. 61-40; S. 22; T.
86-11, 62-108, 67-1 ; V. 66-57, 85-75.)

Lost Title Deeds.

47. In case of the loss or destruction before registration thereof of Supreme
any instrument executed by a registered proprietor for the purpose of creat- inTMtiSIte
ing, transferring, or otherwise dealing with any estate or interest in land, or SJIds^ ^°"*
any mortgage or incumbrance affecting land under this Act, the person
claiming to be entitled to be registered as proprietor of any estate or interest

by virtue of such lost instrument may make application to the Supreme
Court to have such claim investigated and declared.

48. Upon proof to the satisfaction of the Court of the fact of such 1^7 make
I088 or destruction as aforesaid, and that such instrument has not been wil- Caiman? to •
fully destroyed by or with the connivance of the applicant, and that the Jj'^J^^®^
applicant is entitled to be registered as aforesaid, and that due notice of to/'**^ *"
such application has been given to the registered proprietor of the land,

estate, or interest intended to be affected, and to all other necessary parties,
the Court may make an order defining and declaring the estate or interest
of the applicant under such instrument, and requiring tho Begistrar to
register mm as proprietor thereof, and the Begistrar shall obey such order.
Such registration shall have the same effect as from the dati thereof as if

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the original instrument had been duly registered ; and such instrument shall
for the purposes of this Act be deemed and taken to hare been in the terms
or to the effect set forth in such order. (S. 246.)

' ^^a^^ ^ ^d* ^^^ Court shall, in hearing and deciding upon any case, under the

rMi jiutioe IftBt two preceding sections, be guided by the real justice of such case, and
shall direct itself by such eyidence as may seem to it most suitable to the
circumstances of such case.

OxrrsTAisfDTsa Loisbssts.

intereata 50. Lcascs, mortgages, incumbrances, or other estates or interests

aTt^^^ affecting the estate of the proprietor at the time of bringing land under this
Jnjg"* Act (hereinafter called " outstanding interests "), shall, so far as the same

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