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

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been subject and liable if named in such instrument originally as mortgagee
or lessee of such land, estate, or interest ; and by virtue of every sucb
transfer as is hereinbefore mentioned the right to sue upon any memorandum
of mortgage or other instrument, and to recover any aebt, sum of money,
annuity, or damages thereunder (notwithstanding the same may be deemed
or held to constitute a chose in action) , and all interest in any such debt,
sum of money, annuity, or damages, shall be transferred so as to vest tbe
same at law as well as in equity in the transferee thereof. Provided always
that nothing herein contained shaU prevent a court of competent jurisdic-
tion from giving effect to any trusts affecting the said debt, sum of money,
annuity, or damages in case the transferee shaU hold the same as a trustee

• for any other person. (Q. 61-65,66 / S. 152 ; T. 62, 63, 64 ; N. 48).

Implied , 84. In every transfer of a lease as aforesaid there shall be implied a

toSi^ of "* covenant by and on the part of the transferee with the transferor that the
transferee will thenceforth pay the rent by the said lease reserved, and per-
form and observe all the covenants in the said lease expressed or impliea on
the part of the lessee to be observed and performed ; and will indemnify &nd

Transfer of
lease or

Bights of

nowers of
giTe effeotto

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keep burmless the transferor and his representatives from and against all
actions, suits, claims, and expenses in respect of the non-payment of such
rent, or the breach or non-obsenrance of such covenants or any of them.

85. Whenever any order shall be made by any Court of competent Memonm-
jorisdiction vesting any estate or interest under this Act in any person, the ofco^'^^'
fiegistrar, upon bemg served with an office copv of such order, shall enter a ▼•^ing .
memorandum thereof in the Eegister, and on the outstanding instrument of tereat to'be'
title, and until such entrv shall be made the said order shall have no effect in ^^**°
Testing or transferring the said estate or interest. ^^


86. When any land under this Act is intended to be leased or demised l«um^
for a life or lives, or for any term not less than three years, the proprietor ^'^^

^ ahall execute a memorandum of lease in the Form D in the Second Schedulo,
and such instrument shall, for description of the land intended to be dealt with,
refer to the grant or certificate of title, or shall give such other description
as may be necessary. (Ex parte Bond^ 89 ; Smith v. Bavy^ 135 ; Ettershank
T. The Queen, 153 ; Wilton v. King, 166 ; Buckettv, Ehohbe, 167-168. S. 116 ;
V.66, 76.)

87. A right for or covenant by the lessee to purchase the land may be ^.**J^*''^'
stipulated in a memorandum of lease ; and in case the leasee shall pay the ^^ ^^*
purchase-money, and otherwise observe his covenants expressed and implied,

m snch instrument, the lessor shall be bound to execute a memorandum of

transfer, and to perform all other necessary acts for the purpose of trans-

I f erring to the lessee the said lands and the fee-simple thereoi. (Be Olarh

and Eanley, 69-9 Q. 61-53.) L««M»not

1 88. No lease of mortgaged or incumbered land shall be binding upon binding on
tbe mortgagee except so far as such mortgagee shall have consented thereto. ^^^^

89. The surrender of a lease by aereemeiit between the parties may be ^^'^'^^
effected by indorsing thereon the word " surrendered," and such indorse- ofSaro *'•
ment, if signed by aU necessary parties and attested, shall be noted on the
Register and on the outstanding certificate of title, and shall thereupon
operate to vest aU the estate and interest of the lessee in the person entitled

to the reversion. But no lease subject to mortgage or underlease shall be
mrrendered without the consent of the mortgagee or sub-lessee. (Kearton v.
Biehardion, 125. N. 50 ; Q. 54, 61 ; S. 92, 120 ; T. 48, 62 ; V. 66-82.) •

90. In every memorandum of lease there shall be implied the following impUed
corenants against the lessee, that is to say, — (1) That he will pay the rent ooTenmtaon
thereby reserved at the times therein mentioned, and all rates and taxes ^*^° ^*"**
wliich may be payable in respect of the demised property during the con-
tinuance of the lease ; (2) That he will keep and yield up the demised
property in good and tenantable repair. (N. 51 ; Q. 61-70 ; S. 124 j T. 62-
49; V. 66-77.)

9L In every memorandum of lease there shall also be implied the j^^y^^
following powers in the lessor, that is to say : — (1) That he may, by himself covenants on
or bis agents, at all reasonable times, enter upon the demised property and p*^**^ '<*8^'
^ the state of repair thereof, and may serve upon the lessee, or leave at
iis last or usual place of abode in the colonv or upon the demised property,
» notice in writing of any defect, requiring him, within a reasonable time to
fcefterein prescribed, to repair the same ; (2) That in case the rent or any

a thereof shall be in arrear for the space of six months, although no formal
nd for payment shall have been made, or in case default shall be made in

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the fulfilment or obseryance of any covenant or condition, whether expressed
or implied, in such lease on the part of the lessee, and shall be continued for
the space of six months, or in case the repairs required by such notice as
aforesaid shall not hare been completed within the time therein specified,
such lessor may re-enter upon ana take possession of such demised premises.
(N. 61 ; S. 125-2 ; T. 62-60.)

B<M»ntr7 by 92. In caso of re-entry and recovery of possession of any leasehold
lessor premises, either by process of Jaw or by exercise of any power of re-entry in

the lease contained or implied, the Registrar shall, upon proof to his satis-
faction of such re-entry, and of actual recovery of possession, notify such
re-entry upon the Eegister and upon the outstanding instrument of title, if
produced to him for tnat purpose. And the estate of the lessee, and of
every person claiming through or under him, shall thereupon cease and deter-
mine, but without releasing him or them from liability in respect of the
breach or non-observance of any covenant or condition in such lease con-
tained or implied: Provided that unless such re-entry and recovery of
possession has been by formal process of law, the Eegistrar shall require
notice of application to register the same to be served on all persons, inter-
ested under the lease, or, failing such notice, shall give at least one calendar
month's notice of such application by publication in the Oazefte, and in some
newspaper published in the district, before making any entry upon the
Eegister. {Buehnall v. Beid, 145. N. 51 ; Q. 61, 71; T. 62-50; V. 66-
77 ; 8. 125, 126.)

MortgMM, 93. Whenever any estate or interest under this Act is intended to be

form of charged with or made security for payment of any money the registered
proprietor shall execute a memorandum in the Form E or F in in the Second
Schedule as may be applicable to the case, and every such instrument shall
contain a precise statement of the estate or interest intended to be charged,
and shall, for description of the land, refer to the proper folium of the
Eegister, and shall give such other description as may be necessary.
(Ohomle^Y, Firebrace^ 21 ; Bumev, Stewarty 28 ; Barkery. Weld, 31 ; Jellicoe
.V. Wellington Loan Co., 50 ; Beg, v. Tideman, 99 ; B099 v. McNeil, 118 ;
Manning v. Groisman, 127 ; Shackell v. Lindsay, 174 ; St. George v. Burnett,
175. Q. 61-3, 60 ; S. 128 ; T. 86-17.)

tiSl^SaS ®^' '^ mortgage under this Act shall have effect as security, but shall
seowityon^ uot Operate as a transfer of the estate or interest so charged. In case of a
mortgage bv a mortgagee of his estate or interest in a mortgage, the person
in whose favour such charge is created shall be deemed the transferee
of such estate or interest, and shall have all rights and powers as such, sub-
ject to the provisioes and conditions expressed in such sub-mortgage, or
implied therein by virtue hereof. {See note to See. 92, ante).
impUed 95. In every mortgage of land there shall be implied against the

Pftrtofmort- mortgagor a covenant that he will repair and keep in repair all buildings or
8^**' other improvements erected and made upon such land, and that the mortgagee

may at all convenient times, until such mortgage be redeemed, be at liberty,
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 improvements.
Mortgagee 96. The mortgagee, upon default of payment of the principal gnm,

dSJiSt enter interest, annuity, or rent-cnarge secured by any mortgage, or of any part
into posses- thereof, may enter into possession of the mortgaged land by receiving the
rents and profits thereof, or, in case the mortgagor himself shall be in

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oecapatioii of the mori^aged premises, may distraiii and sell the goods and
chattels of such mortgagor in and upon the said premises, and ma^ retain out
of the proceeds thereof the moneys which shall be so in arrear, with all costs
and expenses of such distress and sale, or may bring an action for possession
of the said land either before or after entering into the receipt of the rents
and profits thereof or making any distress as iSoresaid, and either before or
after any sale of such land shall be effected under the power of sale given or
implied in his mortgage. (Harvey y. Inglis^ 28a ; re Wm, Field, 59e ; Jone9
▼. Selliekf 78 ; Be^. y. Tideman, 99 ; Van Damme y. Bloxam^ 105 ; Delaney y.
SandhuTit Building Society, 179.)

97* Besides his remedy against the mortgagor, every mortgagee shall be Mortingee
entitled, after the principal sum, interest, annuity, or rent-clwirge, or any S^tenlSSt?
part thereof shall have become in wrrear for twenty-one days, and after the amoimt
seven days have elapsed from the date of the application for payment ^ * '*"
thereof to the occupier or tenant, to enter upon the mortgaged land and
distrain and sell the goods and chattels of such occupier or tenant, and to
retain thereout the moneys which shall be so in arrear, and all costs and
expenses occasioned by such distress and sale : Provided that no occupier or
tenant occupying such land shall be liable to pay to any mortgagee a greater
sum than the amount of rent which, at the time of making such distress,
may be then due from such occupier or tenant to the mortgagor, or to the
person claiming the said land under the mortgagor, and any amount so paid
shall be held to be pro tanto in satisfaction of such rent. (Jellicoe v. TFeh
lingUm Loan Oo,, 60 ; Bon v. McNeil, 118 ; Hart v. Stratton, 119. N. 58,
59 ; Q. 61-60, 61 ; S. 187, 188, 139 ; T. 62-52, 57, 101 ; V. 67-2, 66-91.
See note to See, 96, ante.)

98. In case default be made in payment of the principal sum, interest, ^^^^^l
annuity or rent-charge, or any part thereof secured by any mortgi^e under mortgagor
this Act, or in the observance of any covenant expressed or imphed in any ^^ii^er
sndi mortgage, and such default be continued for the space of one month, or d«f»^t
for such other period of time as may therein for that purpose be expressly
limited, the mortgagee mAj give to the mortgagor notice in writing to pay
the money then due or owing on such mortgage, or to observe the covenants
therein expressed or implied, as the case may be, and that the power of sale
will be exercised if sucn default be continued, or may leave such notice on
the land intended to be sold, or at the usual or last known place of abode in
the colony of the mortgagor. (Buchett v. Knohhe, 1 67 ; Boms v. Victoria
Permanent Bmldi/ng Society, 1^0. N. 56 ; Q. 61-57; S. 133 ; T. 62-54;
V. 85-44.)

99* After such default in payment or in observance of covenants con- Power of
tinning for the further space of one month from the date of service of such Sotted^*""
notice, or for such other period as may in such instrument be for that
purpose limited, such mortgagee is hereby authorised and empowered to sell
the estate or interest so mortgaged, or any part thereof, either altogether or
inlets by public auction, or by private contract, or partly by either of such
modes oi sale, and subject to such conditions as he may think fit, and to buy
in and re-tell the same without bein^ liable for any loss occasioned thereby,
and to make and execute all such instruments as shall be necessary for
effecting the sale thereof ; all which sales, contracts, matters, and things
herel^ authorised shall be as valid and effectual as if the mortgagor had
made, done, or executed the same. {See note to Sec, 98, ante.)


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B«oeiptof 100. The receipt or receipts in writing of the mortgagee shall be a

JJS^^ suflBcient discharge to the purcnaser of such land, estate or interest, or of
diaeiiarge any portion thereof, for so much of his purchase-money as may be thereby
expressed to be received ; and no such purchaser shall be answerable for the
loss, misapplication, or non-application, or be obliged to see to the applica-
tion of the purchase money by him paid, nor shall he be concerned to inouire
as to the fact of any default or notice haying been made or given as atore-
said. (N. 59 ; Q. 61-57; 8. 184.)

AppMeation IQI. The purchase-money to arise from the sale of any such land,

money estate, or interest, shall be applied — Firstly, in payment of the exnenses
occasioned by such sale : Secondly, in payment of the moneys which may
then be due or owing to the mortgagee : Thirdly, in payment of subsequent
registered mortgages or incumbrances (if any) in the order of their priorily :
and the surplus (S any) shall be paid to the mortgagor as the case may be.
(V. 66-86.)

TnoBferby 102- TJpon the registration of any transfer executed by a mortgagee

mortgagee £^^ ^j^^ purpose of such sale, the estate or interest of the mortgagor therein

expressed to be transferred shall pass to and vest in the purchaser, freed

and discharged from all liability on account of such mortgage, or of any

estate, or interest registered subsequent thereto.

Sr^ST* 103. Any mortgagee who shall have become entitled uuder this Act to

^InA exercise a power of sale may apply fco the Registrar or Deputy Etegistrar of

s^Sm ^' the Supreme Court, who shall be empowered to act within the land

Court registration district in which the land inteuded to be sold is ujtuated, to

v«Hd»tioii conduct such sale. Every "Registrar or Deputy Registrar of thB Supreme

^ ** Court by whom any land has been sold under the provisions of " The Land

Transfer Act Amendment Act, 1880," herebv repealed, shall be deemed to

have been the proper Registrar to effect such sale. {8t George v. Burnett^

175 ; Bos9 V. Victoria Per. Btdlding Society^ 180 ; re Jos. Eaton^ 194 ; re

Thompson and Chipps, 27. S. 141. See note to Sec, 96, ante.)

Sf^SJJ^d 104. Such Registrar or Deputy Registrar of the Supreme Court shall

pjjjy^^^^ thereupon fix a convenient time (being within three months and not less
than fourteen days of such application) and a convenient place for such sale,
and shall approve proper conditions of sale and employ an auctionoQr, and
shall do all other necessary acts for effectuating such sale. But no sale
shall be made under this Act until such Registrar or Deputj Registrar of
the Supreme Court shall have been satisfied that all demands and notices
(if any; required bv this Act, or by the terms of such mortgage, have been
given and made. (Pannan v. Pannany 16 ; Kieilvng v. Mitchelson, 123. Q.
84-2; S. 16; T. 62, 81.)

MortngM 105. At any such sale the mortgagee may be a bidc^er, and may become

^iSST® *^® purchaser ot the land or any part thereof, and, in the event of the
mortgagee being declared the purchaser, the Re^strar or Deputy Registrar
of the Supreme Court who shall have conducted such sale, or his successor
in office, shall, on being required so to do, execute a transfer of the land
sold to such mortgagee or to such person as he shall direct, and such
transfer shall be expressed to be made in exercise of such power of sale, and
shall be signed by such Registrar or Deputy Registrar of the Supreme
Court, or his successor in office, in his own proper name, with the addition
of bis official description. (See note to Sec. 96, ante.)

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106. On any sale conducted hj aBegistrar or Deputj Begistrar of FeMtobe
the Supreme Court there shall be paid by the vendor a fee, on completion JjjJ,*^ ^
of the purchase, of a percentage on and to be paid out of the purchase-
money after the rate, where the purchase-money does not exceed two
hundred pounds, of one per centum, and, where the purchase-money exceeds
that sum, one quarter per centum on the remainder of the purchase-money,
bnt in no case to exceed twenty pounds. Such fees shall be paid to the
said Begistrar or Deputy Begistrar, and form part of the Consolidated

107* Every transfer made and executed in favour of the mortgagee or BegiitratioB
by his direction as aforesaid may be registered under this Act ; and upon <>'*»°^«'
ffuch registration the land, or the estate or interest of the mortgagor therein
expressed to be transferred, shall vest in the transferee freed and discharged
from all liability on account of the mortgage under which such power of
sale has been exercised, or of any estate or interest registered subsequent
thereto. {Featherstane v. Hanim, 4; MoGlone v. Begistrar of TitleSy 141.
See note to Sec, 80, ante.)

108. Upon the production of any memorandum by indorsement on ^^^^|^^'
the mortgage or otherwise, signed by the mortgagee and duly attested, h^r^oted
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 mortgage from the whole or any part of such principal

Bum or annuity, the Begistrar shall make an entry m the Bolster and on
the outstanding instrument of title, noting that such mortgage is discharged
wholly or partially. Upon such entry being made, the land, estate, or
interest, mentioned or referred to in such memorandum shall cease to be
subject to or liable for such principal sum or annuity, or for the part thereof
noted in such entry as discharged. The outstanding duplicate of every
mortgage wholly or partially discharged as aforesaid shall be surrendered to
the Begistrar to be cancelled, or part-cancelled, as the case may be, unless
the Begistrar shall see reasonable cause to dispense with such surrender.
(N. 61, 63 ; Q. 61-67, 63 ; S. 143, 1, 147 ; T. 62-59, 61 ; V. 66-10. See note
to Sec, 93, ante.

109. In case any mortgagee shall be absent from the colony, and ifmortgagee
there be no person authorised to give a receipt for the mortgage-money at Joiony, ™
or after the date appointed for the redemption of any mortgage, the moitjigor
Colonial Treasurer may receive such mortgage-money, with all arrears of Jhwgemort-
interest then due thereon, intrust for the mortgagee or other person entitled 8»g«Vp»y-
thereto ; and thereupon the interest upon such mortgage shall cease to run olSoniai
or accrue. (Patten v. Thompson, 74. See note to Sec. 96, ante.) Trearowr

Upon presentation of the receipt of the Colonial Treasurer for the
amount of the said mortgage-money and interest, the Begistrar shall make
on entry in the Begister discharging such mortgage, stating the dav and
hour on which such entry is made, and such entry shall be a valid discnarge
for such mortgage, and shall have the same force and effect as is herein-
before given to a like entry when made upon production of the mortgage
with the receipt of the mortgagee ; and 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. (N. 63 ; Q. 61, 64 ; S. 146 ; T.

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On death of HO, XJpon proof of the death of the annuitant, or of the occurrence

dSibS^e of ^^ *^® event or circumstance upon which, in accordance with the proyisionfl

""luity nwy of any instrument executed for the purpose of securing an annuity or

•*^'* continuing payment, such annuity or payment shall cease to be payable ;

and upon proof that all arrears thereof have been paid, satisfied, or

discharged, the Eegistrar shall make an entry in the Segister of such

satisfaction or discharge, and shall indorse the same on the outstanding

duplicate of title, if produced to him for that purpose, and shall, if the same

shall be surrendered to him, cancel the instrument creating the incumbrance.

(8. 145 ; T. 62-50 ; V. 66-100.) .

to ha^*^ 111. Every mortgagee of land under this Act shall, as against the

remedies of mortgagor and those chiiming through or under him, if default shall have

re^orer/of ^^^ made in payment of the interest or annual or principal sum secured

Srf"Sat*' ^^ ^^ ^^^ mortgage or any part thereof for the time specified by this Act or

otherwise provided in such instrimient, have all the like remedies for

obtaining possession of the mortgaged land as are by law given to a

landlord against a lessee or tenant whose term is expired or rent in arrear.

(Burne v. Stewart, 28 ; Orai/ v. Wation, 152 ; £o89 v. Victoria Fermanent

Building Society, 180.)

Kg"?' 112. No right or recovery of possession by any lessor or mortgagee of

M'^^Menot Iftnd under this Act shall extend to bar the right of any mortgagee of any
to be bwred lease or any part thereof who shall not be in possession, so as such mortgagee
pay all rent in arrear, and all costs and damages sustained by the lessor or
person entitled to exercise such right of recoverv, and perform all the
covenants and agreements which, on tne part and behalf of the first lessee,
are and ought to be performed. {See note to Sec, 96, ante.)

Mortgftffee US- Every mortgagee of leasehold land under the provisions of this

Jfi^^^ Act, or any person claiming the said land as a purchaser or otherwise from

Uabie to or Under such mortgagee, after entering into possession of the said land, or

rrat^' ^' the rents and profits thereof, shall, during such possession and to tbe extent

of any rents and profits which may be received by him, become and be subject

and be liable to the lessor of the said land, or toe person for the time being

entitled to the said lessor's estate or interest in the said land, to the same

extent as the lessee or tenant was subject to and liable prior to such

mortgagee or other person entering into possession of the said land or the

rents and profits thereof. (King v. Stuart, 164 ; re 0*Connell 169. See note to

Sec, 96, ante, N. 59 ; Q. 61, 62 ; S. 189 ; T. 62-58 ; V. 66-91.)

toSfS^M- ^^* ^^® mortgagee, or first mortgagee for the time being, of any

tody of ^.'' estate or interest under this Act shall be entitled to the possession of the
fSe°*^*^ outstanding grant, certificate, or other instrument of title, or the same may

by a^eement be deposited with the Eegistrar for safe custody daring the

contmuance of the security.


nnc^&ni- 115- Any person claiming to be entitled to any estate or interest
^jS^**to"**^ under this Act hj virtue of any transmission may make application in
haTe Muoe writing to the Eegistrar to have such transmission registered. (^See note to
"*"**^ Sec, 86, ante, Q. 77-81 ; S. 19 ; T. 62-3, 86-19 ; V. 85-60.)

PartionUn 116. Such application shall accurately define the estate or interest

^ ^pp^to»^ claimed by the applicant, and shall state, so far as is within the knowledge
tion of the applicant, the nature of every estate or interest held by any other

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person at law or in equity affecting tlie same, and that he verily believes
nimself to be entitled to the estate or interest in respect of which he applies
to be registered as proprietor, and the statement in such application shall
be verified by the oath or statutory declaration of the applicant.

117* I^ noon such application and upon the evidence adduced in ProoedoM
support thereoi it shall appear to the Begistrar and Examiner of Titles ^ appiioa-

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