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

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Act to be are disclosed in the application, or can otherwise be ascertained, be notified
^I^Jj^"' on the Eegister in such manner as to preserve their priority, and shall there-
after, notwithstanding variation in form, be dealt with as if the same or cor-
responding interests had been originally created under this Act, and every
dealing therewith shall imply all powers, conditions, and covenants incident
to dealings in the like form with land under this Act.

re ^^^Sed ^^* Estates and interests existing by virtue of instruments registered under

mSer Deeda " The Deeds Begistration Act, 1868," affecting land over which the Native title
icfto tec^° has been extinguished since the constitution of the district within which
reoognised such land is sltuatc, sha]l be deemed *' outstanding interests " within the
in certain meaning of this Act, and shall be noted accordingly. But no such estates
or interests shall be so recognised if created prior to the antevesting date in
the grant or subsequent to the thirty-first day of August, one thousand
eight hundred and seventy -four.

Leases nnder 52. Lcascs confirmed by the Govemor-in-Council under the provisions
sISemeSte of " The Wost Coast Settlement Eeserves Act, 1881,*' or any Act amending
^^jjjj^to the same, may be registered under this Act notwithstanding that such leases
registered ^^ dated prior to the date of the Crown grant, and such leases when re-
gistered shall be deemed to have been duly made and executed under the
provisions of this Act.

Assurance 53. No person claiming any estate or interest by virtue of any deed

SbiefoHoss ^^ instrument which might have been registered against the land under any
sustained Act for the time being in force for the registra-tion of deeds within the
n^°ect*of Colony of New Zealand shall have any claim or action against the Begistrar-
ciaunantto General or upon the Assurance Fund by reason of deprivation of such
'®*^*^' interest consequent on bringing the land under this Act, unless such deed
or instrument shall have been so registered, or unless the Begistrar shall
have been served personally with notice in writing of such claim, or shall
have had actual personal knowledge thereof, and shall have omitted to re-
cognise the same. {Moyle v. CHbhs, 49 ; Maddison v. McCarthy^ 83 ; Massett
V. Col Bank, 138. N. 116-124 ; Q. 77-47, 61-44 ; S. 206 ; T. 62-133 ; V. 66-

Eegibtered Pbopbietobs.

Persons 54. Subjcct to any Act of the Qeneral Assembly for the time being in

t^^fi*" ^^^^ relating to the tenure of land by persons of the Native race, any two

joint tenants or moro porsous named in any Crown grant, or in any instrument executed

under this Act as transferees, mortgagees, or proprietors of any estate or

interest, shall, unless the contrary be expressed, be deemed to be entitled as

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joint tenants with right of saryiyorship, and such instrument, when registered,
shall take effect accordingly. (Pannan y. Fannan^ 16 ; Jones y. Jones, 184 ;
Fhnoran y. Weir, 136 ; Rail y. Loder, 168. N. 86 ; Q. 61-4iO ; S. 71 ; T.
62-88 ; V. 66^.)

55. Notwithstanding the existence in any other person of any estate Bsute of
or interest, whether derived by grant from the Crown or otherwise, which JJS^rf^r
but for this Act might be held to be paramount or to have priority, the re- p»"«nount
gistered proprietor of land or of any estate or interest in land under the
provisions oi this Act shall, except in case of fraud, hold the same subject

to Buch incumbrances, liens, estates, or interests as may be notified on the
folium of the Begister, constituted by the grant or certificate of title of
Buch land, but absolutely free from all other incumbrances, liens, estates, or
interests whatsoever except the estate or interest of a proprietor claiming
the same land under a prior certificate of title or under a prior grant re-
gistered under the provisions of this Act, and except so far as regards the
omission or misdescription of any right-of-way or other easement created in
or existing upon any land, and except so far as regards any portion of land
that may be erroneously included in the grant, certificate oi title, lease, or
other instrument evidencing the title of such registered proprietor by wrong
description of parcels or of boundaries. (N. 40 j Q. 61-44 ; T. 62-40 ; V.

56. No action for possession, or other action for the recovery of any Begistered
land, shall lie or be sustained against the registered proprietor under the JJS^^'
provisions of this Act for the estate or interest in respect to which he is so against
registered, except in any of the following cases, that is to say : — (1) The SSL^I?
case of a mortgagee as against a mortgagor in default : (2) The case of a certain casos
lessor as against a lessee in default : (3) The case of a person deprived of

any land bj fraud, as ag:ain8t the person registered as proprietor of such
land through fraud, or as against a person deriving otherwise than as a
transferee bond fide for value from or through a person so registered
through fiaud : {Brady v. Brady, 75) (4) The case of a person deprived
of or claiming any land included in any grant or certificate of title of
other land by misdescription of such other land, or of its boundaries, as
against the registered proprietor of other land, not being a transferee
or deriving from or through a transferee thereof hona fide for value.
{Rassett v. Colonial Bank, 138, 173.) (5) The case of a registered
proprietor claiming under the instrument of title prior in date of
registration, under the provisions of this Act, in any case in which
two or more grants or two or more certificates of title, or a grant
and a certificate of title, may be registered under the provisions of this Act
in respect to the same land. And in any case other than as aforesaid, the
production of the register or of a certified copy thereof shall be held in
every Court of law or equity to be an absolute oar and estoppel to any such
action against the registered proprietor or lessee of the land the subject of
such action, any rule of law or equity to the contrary notwithstanding.
(8laeh t. Downton, 11 ; Pannan v. Fannan, 16 ; re Sellars, 32 ; Coleman
and Olarh v. Biria, 46 ; Jones v. Sellieh, 78 ; Sanders v. Wadham, 88 ;
JBSrkham t. Jtdien, 109 ; Wilkinson v. Broum, 121 ; Kearton v. Biehardson,
126; Dyke t. Elliott, 183; Finnoran v. Weir, 136; Wadham v. Battle and
oihers, 165 ; Buckett v. Binobhe, 167, 168 ; Delaney v. Sandhurst Building
aoeiety, 179 ; Colonial Bank v. Boaohe, 187. N. 68 ; Q. 61-60, 123 ; S. 192 ;
T. 62-124; V. 66,188.)

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Whfliiiind 57* After land has become subject to this Act, no title thereto or to

to^*55e ft^iy rig^^i Ijrivilege, or easement in, upon, or over the same shall be acquired
p*»nt^^l)y possession or user adversely to or in derogation of the title of the
iwo^etor registered proprietor.

Cebtificate of Title.

^^^siaterad 58. Evorj r^^isterod proprietor of an estate of freehold in possession

ra^d to in land under this Act shall be entitled to a certificate of title for the same

«Mrtifu»te of ij^ 1;^^ Form B in the Second Schedule, or as near thereto as the nature of

the interest will permit. But no certificate of title shall issue for any

undefined interest. {Sharpe v. Hadley^ 3 ; Feaiherstone v. Hanlon^ 4 ; Pannan

V. Pannan, 18 ; Ohomley v. Mrehrace, 21 ; House v. O'Farrell, 51 ; re Hat/ton^

67 ; Waeson v. Watson, 93 ; Hall v. Hall, 98 ; Fitzgerald v. Archer, 101 ;
Kirkham t. Carpenter, \\1\ ex parte The Mutual Trust Company, 117 ; Jones
V. Jones, 134 ; Smith v. Davy, 136 ; Miller v. Morrissey, 181 ; Stevens v.
Williams, 186 ; re John Eaton, 194 ; Robertson v. Keith, 195 ; Formby v.
Adelaide Corp., 199 ; Miller t. Morrissey, 214 ; Wilkinson v. Brown, 215.)

Bxiating in- 59. The Bogistrar shall note upon such certificate, in such manner as

tobJ'S^ to preserye their priority, the memorials of all unsatisfied mortgages, leases,
in oertifloftto and other estates and interests, outstanding or otherwise, to which the land
is subject at the time of issuing such certificate ; and, in case of a certificate
issued to a minor, or person under other legal disability, the Bc^strar shall,
in such certificate, state the particulars of such disability so rar as he has
notice or knowledge thereof.

Oertiiiofttat 60. Every certificate issued pursuant to any dealing under this Act

d^2^^ shall bear even date with the registration of such dealing, unless such

dealing shall have been originally entered on the Provisional Begister, in

which case the certificate shall bear even date with the registration of the

Crown grant, or with the date of reception by the Eegistrar of the

G-ovemor's wairant for issue of a certificate in lieu of grant, as the case

And may be may be. A certificate of title issued in the name of a registered proprietor

'°**'^***^ in lieu of a cancelled certificate may be expressed to take effect as from the

date of the certificate originally issued to such proprietor in respect of the

same estate or interest.

How memo. 61. Whenever any easement or incorporeal right, other than an
mratU) bT" aiJiD^^y ^^ rent-charge in or over any land under this Act, is created for the
reooided purpose of being annexed to, or used and enjoyed together with, other land
under this Act, the Begistrar shall enter a memorial of the instrument
creating such easement or incorporeal right upoki the grant or certificate of
title of such other land, and such memorial shall as from the date of entry
thereof, have the effect of including such easement in such grant or
certificate of title, as appurtenant to the land therein described. (Jones t.
Park, 81 ; Anderson v. Maori Hill Boro\ 103, 124. N. 43 ; Q. 61-51, 85-9,
77, 28; S. 81 ; T. 62-43 ; V. 85-41.)

Tenentoin Q2. When two or more persons are entitled as tenants in common to

entitled to Undivided shares in any land, each such person shall be entitled to receive

J^^JJj^^'*^ a separate certificate tor his undivided share: Provided that tenants in

common shall not be bound to take separate certificates unless and until

they shall require to make separate dealings with their respective interesta.

ilks parte Locke, 48. N. 86 ; Q. 51, 92 j T. 62-87, 86.16 ; V. 664i4.)

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63. The Begifltrar shall not bd bound to issne a certificate of title npon issue of oer-
any application in respect of which notice is hereby required to be given by Sf^SSiSS
adrertisement until after the expiration of fourteen days from the time for fourteen
limited in such advertisement. t!Si'<^t^'

64. If any certificate, whether on the first bringing of land under this Certmoate
Act or otherwise, shall be issued in the name of a person who shall have Jow wioogh
previously died, such certificate shall not be void, but the land comprised ^a«d in
therein shall devolve in like manner as if such certificate had been issued Sl^leMMMd
immediately prior to such death. (T. 62-12-7.)

65. Every certificate of title duly authenticated under the hand and Oertmoateto
seal of the Begistrar shall be received in all Courts of law and equity as of pnpri^
evidence of the particulars therein set forth or indorsed thereon, and of torrfiip
their being entered in the Begister, and shall unless the contrary be proved

by production of the Eegister, or a certified copy thereof, be conclusive
eridence that the person named in such certificate of title, or in any entry
thereon, as seized of or as taking estate or interest in the land therein
described, is seized or possessed of such land for the estate or interest
therein specified as from the date of such certificate or as from the date
from which the same is expressed to take effect, and that the properly
comprised in such certificate has been duly brought under this Act. (N.
33; Q. 61-122 ; S. 80 ; T. 62-83 ; V. 78-2.)

66. No certificate of title shall be impeached or defeasible on the ground Certifioftte
of want of notice or of insufficient notice of the application to bring the land ^p^hed
therein described under this Act, or on account of any error, omission, or
informality in such application or in the proceedings pursuant thereto.

67. Any certificate of title issued upon the first bringing of land under cwtifloftte
this Act, and every certificate of title issued in respect of the same land, or J^^gJJ?
any part thereof, to any person claiming or deriving title under or through

the applicant proprietor, shall be void as against the title of any person
adversely in actual occupation of and rightfully entitled to such land, or
any part thereof, at the tune when such land was so brought under this Act,
and continuing in such occupation at the time of any subsequent certificate
of title being issued in respect of the said land ; but every such certificate
shall be as valid and effectual against the title of any other person as if such
adverse occupation did not exist. (S. 69-6 ; T. 62-185.)

68. The Begistrar may, upon such evidence as shall appear to him suffi- Errors in
cient, subject to any regulations under this Act, correct errors and supply ^*^'"?3
omissions in certificates of title or in the Begister, or in any entry therein, ^^^^
and may call in the outstanding instrument of title for that purpose. (8harpe

V. Badfey, 3 ; ex-parte Bighy, 77 ; Campbell v. Jarretty 96 ; Ashley v. Ooohy
137 i RaiseU v. Colonial Bank, 138. N. 11, 4 ; Q. 61, 11, 4 ; S. 220-4 ; T.
62, 11, 4 ; V. 66-129.)

69* In case it shall appear to the satisfaction of the Begistrar that any Holder of
certificate of title or other instrument had been issued in error, or contains JS^ed*
any misdescription of land or of boundaries, or that any entry or indorsement ^^^
has been made in error, or that any grant, certificate, instrument entry or error, or
indorsement has been fraudulently or wrongfully obtained or is fraudulently J^JJ^i"^
or wrongfully retained, he may require the i)erson to whom such grant, m»T be »-
certificate or instrument so issued, or by whom it is retained, to deliver up 2SSS^ it
the same for the purpose of being cancelled or corrected, as the case
may require. (Sharpe v. Radley, 3 ; Patten v. Thomson^ 74 ; Brady v.
Brady, 76 ; CMtholm v. Capper, 96. N. 126 j T. 62, 116, 186.)

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In default. 70. Ih caso such person shall refuse or neglect to comply with such

SJJ^tT"" request, or cannot be found, the Registrar may apply to a Judge of the

Supreme Supreme Court to issue a summons for such person to appear before such

^^^ Court or Judge and show cause why such grant, certificate, or other

instrument should not be delivered up as aforesaid ; and, if such person

when served with such summons shall neglect or refuse to attend oefore

such Judge or Court at the time therein appointed, such Judge may issue a

warrant authorising and directing the person so summoned to be apprehended

and brought before a Judge of toe Supreme Court for examination.

(Campbell y. Jarretty 96 ; Chisholm v. Coppery 86*; Stockdale v. Hamilton^

154 ; De Lissa v. Coleman, 207.)

Person re- 71, TJpou the appoarauce before the Court or Judge of any person

suS-ender summoucd or brought up by virtue of a warrant as aforesaid, the Court or

^ti^l^^' "^^^^^ °^*y examine such person upon oath, and, in case the same shall seem

prison proper, may order such person to deliver up such grant, certificate of title,

or other instrument as aforesaid, and upon refusal or neglect by such person

to comply with such order, may commit such person to any convenient

prison. (S. 61 ; T. 62, 131 ; V. m, 182.)

Court maj 72. In such cas6, or in case such person shall have absconded, so that

certifioSeto summous caunot be served upon him, the Registrar shall, if the circumstances
iuae of the case require it, issue to the proprietor of the said land such certificate

of title or other instrument as is herein provided to be issued in the case
of any grant or certificate of title beinc^ lost, mislaid, or destroy^, and shall
enter in the Seg^ister notice of the issumg of such certificate of title or other
instrument, and the circumstances under which the same was issued, and
such other particulars as he may deem necessary. (Q. 61-31, 60 ; S. 48-60 ;
T. 62-137; V. 66-183.)

SSS?fSSer ''^^^ ^P^^ *^® recovery of any land, estate, or interest by any proceed-
certificate of in g in auv Court from tne person registered as proprietor thereof, the
cMwUed* Court or Judge, in any case in which such proceeding is not expressly
barred, may direct the Registrar to cancel any certificate of title or other
instrument, or any entry or memorial in the Register relating to such land,
and to substitute such certificate of title or entry as the circumstances of
the case may require, and the Registrar shall give effect to such order
accordingly. {Be Wm, Biggs, 69. N. 44 ; Q. 77-28 ; S. 61, 98 ; T.
62, 138; v. 66-62.)

Proprietor 74. Upou the application of the registered proprietor of land held

sL^Jie^ei^ifi. uudor separate grants or certificates of title, or under one grant or certificate,
of Mveraj"* the Registrar may issue to such proprietor a single certificate of title for the
whole of such land, or several certificates, each containing portion of such
land, so far as the same may be done consistently with any regulations for
the time being in force ; and upon issuing any such certificate the Registrar
shall cancel the grant or previous certificate, and shall note thereupon a
reference to the certificate of title issued in lieu thereof. (N. 97; T.

SS^Tm^e 76. In the event of any grant or certificate of title being lost, mislaid,
in ease of or destroyed, the registered proprietor together with other persons, if any,
^^li having any knowledge of the circumstances, may make a statutory declaration
oertifioate stating the facts of the case, the names and descriptions of the registered
owners, and the particulars of all mortgages, incumbrances, or other matters
affecting such land and the title thereto, to tiie best of declarant's knowledge

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and belief. The Begistrar, if satisfied as to the truth of such declaration, ProTisionai
may issue a proyisional certificate of title, which provisional certificate shall JJI^^?**
contain an exact copy of the original grant or certificate and of every iamed
memorandum and indorsement thereon, and shall also contain a statement
of the circumstances under which such provisional certificate is issued ;
and the Eegistrar shall at the same time enter in the Eegister notice of the
issuing of such provisional certificate and the date thereof, and the circum-
stances under which it was issued. The Begistrar before issuing such
provisional certificate shall give at least fourteen days' notice of his intention
80 to do in the OazeiU and in at least one newspaper published in the
Colony. Such provisional certificate shall be available for all purposes and Bffeot of
uses for which the grant or certificate of title so lost or mislaid would S^,lSf
have been available, and as valid to all intents as such lost grant or certifi-
cate. (N.98 ; Q. 61-117 ; S. 79 j T. 62, 100 ; V. 85-60.)


76. When land under this Act, or any estate or interest therein, is Traaafer i^y
intended to be transferred, or any right of way or other easement is intended prop^J^,
to be created, the registered proprietor may execute for the purpose of ^o'' ©ff«ot©d
reristration a memorandum of transfer in the Form C in tne Second
Schedule, which memorandum shall, for description of the land intended to
be dealt with, refer to the proper folium of the Eegister, with such further
description as may be necessary, and shall contain a precise statement of
the estate or interest intended to be transferred or created. {Bailey v.
ChrUp, 64 ; ex parte Mnlay, 65 ; UAlbrdyhill v. D'Alhrdyhill 82 ; Massett,
V. Colonial Bank, 139 ; Kelly v. Fuller, 139 ; Formby r. Adelaide Corporation,
199 ; Fakner v. Andrews, 146. V. 42 ; Q. 61-48 ; S. 96 ; T. 62-42, 86-137 ;
V. 66, 67.)

77- If any memorandum of transfer purports to transfer the whole of Now oortm-
the land described in a grant or certificate of title for all the estate and SiJfe^Si?"^
interest therein of any registered proprietor, it shall not be necessary for neoeaawy if
the Eegistrar to cancel such grant or certificate, but the memorial of such tn^enc^
transfer indorsed on such grant or certificate shall be as good evidence that
the transferee named in such memorial is seized of all the estate and interest
in the said land of the person whose interest is expressed to be transferred,
subject as in such grant or certificate mentioned or thereon endorsed as if a
certificate of title had been issued for the same in the name of the transferee.
(T. 86-12.)

78. If the transfer purports to transfer an estate of freehold in pes- Certmcate
session, not being a lease for a life or lives in part of the land described in ^u^*^"
any grant or certificate, the transferor shall surrender such grant or certifi- *^|^2^^/
cate to the Begistrar, and the indorsement thereon by the Eegistrar of a E^d onij
memorial of such transfer shall have the efiect of cancelling such grant or
certificate so far as relates to the land transferred. (Be Wm, Bigga, 69. N.
44; Q. 77-28 ; S. 61-98 ; T. 62-138 ; V. 66-62.)

70. The Eegistrar, upon cancelling any grant or certificate by indorse- Newcertifl-
ment as aforesaid, shall issue to the transferee a certificate of title to the Sioi^or*
land transferred, and shall retain the partially-cancelled grant or certificate, p<*'*^JV,
and when required hj any person entitled thereto shall issue to such person Sdfor
a certificate of titie for the untransf erred balance of the land, or for any b«i«w»
portion thereof. (Neill v. Lindsay ^ 94 ; re Woods, 96.)

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Estates for
life or in
may be

to issue for
estate in

covenant in
transfer of
equity of

80. The registered proprietor of land under this Act — May transfer
such land to his wife, or, If a married woman, may make such transfer to her
husband, or. May make a transfer to himself jointly with any other person
or persons, and Create or execute any powers of appointment, or limit any
estates, whether by remainder or in reversion, and whether contingent or
otherwise, and for that purpose may modify or alter any form of transfer
hereby prescribed. In case of the limitation of successive interests as Afore-
said the Begistrar shall cancel the grant or certificate evidencing the title of
the transferor, and shall issue a certificate in the name of the person entitled
to the freehold estate in possession for such estate as he is entitled to, and
the persons successively entitled in reversion or remainder shall be entitled
to be registered by virtue of the limitations in their favour in such instru-
ment expressed, and each such person upon his estate becoming vested in
possession shall be entitled to a certincate of title for the same. {Be
jKnapman, 41 ; Ota^o Harbour Board v. Bpeddingy 165.)

81. In every transfer of land subject to a mortgage there shall be
implied a covenant on the part of the transferee to and with the transferor
to pay the interest or other payments thereafter to become due by virtue of
such mortgage at the time and in manner therein specified for payment
thereof and to pay the principal sum when and as the same shall become due,
and to keep harmless and indemnified the transferor in respect of such pay-
ments, and in respect of all liability on account of the future observance of
the covenants ana conditions on the part of the transferor in such mortgage
expressed or implied.

82. A registered mortgage or lease may be transferred by memorandum
of transfer as aforesaid, or by an instrument in the Form Q- of the Second
Schedule, which instrument may be endorsed upon the memorandum of
mortgage or lease, and upon sucn memorandum of transfer or other instru-
ment being registered the estate or interest of the transferor as set forth in
such instrument with all rights, powers, and privileges thereto belonging
or appertaining, shall pass to the transferee. (N. 107 ; S. 152 ; T. 62-83-

83. Such transferee shall thereupon become subject to and liable for
all and every the same requirements and liabilities to which he would have

Online LibraryAustraliaThe land transfer laws of Australasia: being the full text with side notes ... → online text (page 18 of 83)