Australia.

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

. (page 21 of 83)
Online LibraryAustraliaThe land transfer laws of Australasia: being the full text with side notes ... → online text (page 21 of 83)
Font size
QR-code for this ebook


witness attesting the signing thereof.

162. If the attesting witness shall answer in the affirmative each of Attesting
the questions following, that is to say, — Are you the witness who attested ^Spetentte
the signing of this instrument, and is the name [or mark] purporting to be prore
youp name [or mark] as such attesting witness your hand-writing ? Do you
personally know , the person signing this instrument and whose
signature you attested ? Is the name purporting to be his signature his own
hand-writing, is he of sound mind, and did he freely and voluntarily sign

the same ? — then the Kegistrar, Justice, or other person before whom such
witness shall prove such signature as aforesaid shall indorse upon such in-
strument a certificate in form (1) of the Fifth Schedule. The questions
aforesaid may be varied as circumstances may require in case any person
shall sign any such instrument by his mark.

163. If the person executing such instrument be personally known to parties to
the Begistrar, Justice, or other person as aforesaid, he may attend and instrument
appear before such Eegistrar, Justice, or other person and acknowledge that w^^imoilni*



Digitized by VjOOQIC



84 NEW ZEALAND LAND TEANSFER ACT.

be did freely and yoluntarily sign such instrument, and upon such acknow-
ledgment the Eegistrar, Assistant Eegistrar, or any deputy of such oflScer,
Justice, or other person, shall indorse on such instrument a certificate in
the form (2) of the Fifth Schedule.

ment8"by"' 164. Every instrument executed for any of the purposes aforesaid by

aboriginal any aboriginal native of the colony shall be executed according to any. law
exSSed* ^ ^^^ ^^^ *^°^® being in force regulating the dealing by such persons with land
in the colony. {Ee Pykett^ 171.)

Married 165. A married woman shall, for the purpose of any dealing by her

dwm*Si/«iM under this Act, be deemed a feme sole, (N. 77 ; Q. 61-87 ; S. 189, 213-3,
•*»'• 63-13, 78 ; T. 189 ; V. 66-108.)

Corporation 166. A Corporation, in lieu of signing any instrument, may execute the

S3era2?** Bamo by aflSxing thereto the common seal of the corporation, or the ofBcial

seal for use in the colony, or by attorney appointed under such common or

official seal, and such seal affixed to any instrument shall be sufficient proof

to the Eegistrar that the same was affixed under proper authority, and that

such instrument is binding on the corporation whose seal it bears. (N. 93 ;

Q. 61-114; ». 262-270; V. 66-17-6, 66-103.)

fa^TOnenta 167. Every instrument registered under this Act shall, if purporting

ottiTedln to havo becu executed in accordance with the provisions of this Act, be

ConrST**" presumed to have been duly executed, and shall be received in evidence as

such in any Court of law or equity, unless the contrary be proved.

of "^**' 168. No Eegistrar shall receive any application for bringing land under

ment to be this Act, or any instrument purporting to deal with or affect any estate or

°*'*^*^ interest under the provisions hereof, unless there shall be indorsed thereon

a certificate that the same is correct for the purposes of this Act, signed by

the applicant or party claiming undei; or in respect of such instrument, or

by a licensed land broker or solicitor of the Supreme Court employed by

him ; or a corporation may authorise any person to certify on its behalf.

ftSTMrtS- ^^7 person who shall falsely or negligently certify to the correctness of any

cate ^* " such application or other instrument shall be liable therefor to a penalty not

exceeding fifty pounds ; and such penaltjr shall not prevent the person who

may have sustained any damage or loss in consequence of error or mistake

in any such certified instrument, or any duplicate thereof, from recovering

compensation from the person by whom or on whose behalf the same shall

have been certified. (Small v. Qlen, 20.)

VeEIPICATION of Il^STEUMElTTS.

inBtrunwnta 169. Every instrument of any kind whatsoever, which has been or
out of the hereafter may be duly signed, executed, or acknowledged out of the Colony
<»oiony q£ j^g^ Zealand, shall, so far as the signing, execution, or acknowledgment
thereof is concerned, be receivable in evidence in every Court of justice in
the colony, and before any authority or person having by law or consent of
parties authority to hear and receive evidence in the colony, if such signing,
execution, or acknowledgment is verified by the witness thereto if only one,
or by one of the witnesses thereto if more than one, in either of the folio wing
ways, that is to say, — {Mudgway v. Davy Sf Buick^ 1 ; Cuthbertson v. Sicann,
^^ 144.) (1) If such instrument is signed, executed or acknowledged in any
domiuioM part of the British dominions beyond the limits of the Colony, then in ac-
cordance with the provisions in that behalf contained in the Act of the
Imperial Parliament now known by the short title of "The Statutory



Digitized by VjOOQIC



NEW ZEALAND LAND TBAN8EEE ACT. 85

Declarations Act, 1885," or in accordance with the provisions of any enact-
ment in force, in any part of the British dominions where any such verifica-
tion shall take place, respecting the verification of the signing, execution, or
acknowledgment of instruments to he used abroad. And the mention in the
declaration or affidavit referring to such signing, execution, or acknowledg-
ment, or in any certificate written at the foot or in continuation thereof or
attached thereto, signed by a notary public, and under his seal of office, or
signed by the Mayor, Provost or other Chief Magistrate of any corporate
tovm, with the seal of the corporation attached, of the law under which any
such declaration or affidavit is made, shall be sufficient proof of such law.
(2) If any such instrument shall be signed, executed, or acknowledged out in » foreign
of the British dominions, then by an affidavit op solemn declaration as may ^^^^
he lawful in such cases to be made according to the law oE such foreign
country, and certified by the British Consul or "Vice-Consul there under his
seal of office.

SUBVETS.

170. The Survevor- General of the Colony is hereby empowered, with surreyor-
the approval of the Grovemor in Council, to make such regulations as he Generally
may think necessary for insuring the accuracy of plans and surveys required Smw forsurl
under this Act, and to cancel and alter such regulations when and as necee- ^®^"
sary. No person shall be permitted to practice as a surveyor under this Snryeyors to
Act unless specially licensed for that purpose by the Surveyor- General. ^^®®'*"*<*
(N. 100; Q. 61-118 ; S. 243 ; V. 85-5.)

171. The Eegistrar may require any person subdividing land under this Pianaofwib-
Act, or applying to bring land under this Act, to deposit in the Land bedo^ited
Begistry of the district a map or plan of such land or subdivision, or of any
portion thereof, which map or plan shall be in accordance with the regula-
tions for the time being in force in that behalf, and shall be verified by the
statutory declaration of a licensed surveyor in such form as the said
regulations shall prescribe. (Kirkham v. Carpenter, 111 ; Stevens y, Williams,

186.)

172- If and so long as any proprietor shall neglect or refuse to furnish Unta^ian
any plan required as aforesaid, the Kegistrar shall not be bound to proceed dShni^tSh
with the bringing of the land under this Act, or with the registration of the subdivision
dealing in respect of which the same is required. tered"^""

173* The deposit of a plan of subdivision of any land shall not operate Deposit not
as a dedication for public purposes of roads shown on such plan, but a right d^ffiJS"
of way over all such roads shall be appurtenant to every portion of the land roada
in such subdivision, unless expressly excepted ; and every instrument in
which land is described by reference to a deposited plan snail take effect,
according to the intent and meaning thereof, as if such plan were fully set
out thereon. {JRe O'Brien, 34 ; re Dr, O'Quinn, 40 ; Patchell v. Maunsell,
113 ; re Wm. Wadham, 114.)

174. Whenever a public road shall be taken or laid out over any land J**"^^®"
under this Act, the Surveyor- General shall cause to be forwarded to the iSdeflnedon
Eegistrar the particulars of such taking and of the date thereof, together fiegist«r
with a sufficient plan of such road, so far as the same affects land under this
Act ; and the Registrar shall thereupon proceed as may be necessary to have
such road defined on the Register, and on any deposited plan in his custody
or under his control, and on the outstanding duplicate of title. This section
shall not apply to the case of land taken for the purpose of roads under the
provisions of any Act of the General Assembly, if the mode of registration
18 by such Act otherwise provided for.



Digitized by VjOOQIC



86 NEW ZEALAND LAND TRANSPEE ACT.

RogiBtrar AdDITIOKAL PoWEBS OF EeGISTBAB.

maj re<}iiire

5f^?taS?° 175, Every Registrar, in addition to the powers hereinbefore vested in

menta him, may exercise all or any of the powers following, that is to say : —

tom^in' (^) ^® ™*7 require the proprietor op any other person making or

concurring in any application under this Act to produce any deed
OP instrument in his possession op contpol pelating to the land the
subject of such application, and, if necessapy, to attend and give
any inf opmation op explanation concepning the same :

mento ^°"*' ^^^^ ^^ ^^^ pequipo any pepson having in his possession op contpol any
gpant, ceptificate, op othep instrument upon which any memorial or
entpy is pequiped to be indopsed fop the pupposes of this Act to
ppoduce such instpument within a peasonable time to be fixed by
such notice, and to deposit the same in the Land Registpy Office
of his district fop such time as may be necessary f op the making of
such indopsement op entpy :

Foroanoeiia- (ill) He may, if in his opinion the numbep op natupe of the entries on
****" • any folium of the Registep pendep it expedient to close the same, op

if any document of title shall have become wopn, defaced, op
mutilated so as to justify his so doing, pequipe the holdep of the
outstanding duplicate 01 title to suppendep the same fop cancel-
lation ; and, upon such cancellation, a new ceptificate shall be issued
to the pepson entitled thepeto upon payment of the ppescribed fee :
Ppovided that the Registpap may at nis discpetion pemit such fee
except in case of wilful defacement op mutilation of any instru-
ment:

May enter (ly) He may eutop caveats f OP the ppotection of any pepson who shall

**^^ be undep the disability of infancy, coveptupe, lunacy, unsoundness

of mind, op absence fpom the colony, op, on behalf of Hep Maiesty ,
hep heips op successors, to ppohibit the transfer op dealing with any
land within his distpict belonging op supposed to belong to any
such pepsons as hepeinbefope mentioned, and also to prohibit the
dealing with any land within his district in any case in which it
shall appear to him that an erpop has been made by misdescription
of sucH land op othepwise in any ceptificate of title op othep instru-
ment, OP fop the ppevention of any fpaud op imppopep dealing. (^EU
Graig, 76. S. 191, 10.)

May admin- (y) He may admiuistop oaths, op may make a statutopy declaration in

«tor oaths j.^^ ^j administeping an oath. (N. 11-8, 176 ; S. 51, 64 ; V. 85-

37 ; Q. 61, 113 ; T. 62-11-3.)

Pcnaij^for 176. If, upou pcquisition in wpiting made by a Registpap fop any pup-

fngmstru^ poso in the last ppeceding section mentioned, any ppoppietop op othep pepson

re*uSed*by without Pcasonable cause pef uses op neglects to ppoduce, suppendep, op deposit

^^rar any instpument, op to allow the same to be inspected, op pefuses op neglects

to give any explanation which he is hepeinbefope pequiped to give, he shall be

liable to a penalty not exceeding five pounds fop each day- during which the

same shall be petained op withheld contrapy to such pequisition, which penalty

may be pecoveped at the suit of the Registrar in any Coupt of competent

jupisdiction, and shall, in addition thepeto, be liable to make compensation to

any pePson who shall have sustained loss op damage by peason of such non-

ppoduction.



Digitized by VjOOQIC



NEW ZEALAND LAND TEANSPEE ACT. 87

A8Binuir«x linrD.

177- XTpon the first bringing of land under this Act, upon application ABmnmoe
of the proprietor, and also upon the registration of the title to an estate of ^^^j^
freehold in possession in land derived through the will or intestacy of a percentage
preyious proprietor or under any settlement, there shall be paid to the JSiS**"® °'
Begistrar the sum of one halfpenny in the pound sterling upon the value of
the land brought under the Act or of the estate or interest transmitted.
Such value sh^ be ascertained hj the oath or solemn affirmation of the
applicant, proprietor, or person denving such land by transmission. ( Mot/le v.
Ctbbs, 49.) If the Registrar shall not be satisfied as to the correctness of VaiaAtion
the vaiue so declared or sworn to, he may require a certificate of such value 5iS!to7
under the hand of a sw^om valuator which certificate shall be received as
conclusive evidence for the pur^jose aforesaid. All sums collected under the abbuwumso
forgoing provisions shall be paid to the public account, to the credit of an ^^^ ^
account to be called '* The Land Assurance Fund Account," and shall be S^arato
deemed to be and be treated as part of the irublic Trust Fund within the ^^^^^
meaning of " The Public Eevenues Act, 1878." (See note to See. 49, ante.
N. 28.)

178* Anj persons sustaining loss or damage through any omission^ Compensa.
mistake, or misfeasance of any Eegistrar, or of any of his officers or clerks, SS© o'mls!"
in the execution of their respective duties, and any person deprived of any ^wance of
land, or of any estate or interest in land, through the bringing of the same **"*'*'
under this Act, or by the registration of any other person as proprietor of
such land, or by any error, omission, or misdescription in any certificate of
title, or in any entry or memorial in the Ee&;ister, or who has sustained any
loss or damage by the wrongful inclusion of land in any certificate as afore-
said, and who by this Act is barred from bringing an action for possession
or other action for the recovery of such land, estate, or interest, may bring
an action against the Eegistrar- General, as nominal defendant, for recovery
of damages. {Qeorge v. Australian Mutual Provident Society^ 56 ; Bonner
V. Andrews^ 85 ; Ashley v. Cooky 137.)

179. In case the plaintiff recovers final judgment against such nominal LiabUity of
defendant, then the Court or Judge before whom such action may be tried o<SS'*"''^^'
shall certify to the Colonial Treasurer the fact of such judgment, and the
amount of damages and costs recovered ; and the said Treasurer thereupon,

and upon the receipt of a warrant under the hand of the Governor, shall
pay the amount of such damages and costs to the person recovering the
same, and shall charge the same to the account oi the Assurance Fund.
{Sharpe v. Hadley, 3 ; Coker v. Spence, 6 ; Fisher v. Stewart, 44 / Bank
Victoria v. Bawlings, 52 ; re Turner, 66 ; Campbell v. Jarrett, 96 ; Hall v. Hall,
98 ; Kearton v. Richardson, 125 ; Ashley v. Cook, 137 ; Campbell v. Jarrett,
142 ; Orey v. Watson, 152 ; Wilson v. Kiny, 166 ; Miller v. Stuart, 172 ;
Shaekell v. Lindsay, 174.) Notice of

ft . . action to be

180. Notice in writing of every action against the Eegistrar- General, served on
and of the cause thereof, and of the amount claimed, shall be served upon otSenS^ind
the Attorney-General, and also upon the Begistrar-General, one month at Begiatrar
least before the commencement of such action. If the aforesaid officers colonial
concur that such claim ought to be admitted, as to the whole or any part Zjjf^^ ^
thereof, without suit or action, and shall jointly certify to that effect, the admitted
Governor may issue his warrant to the Colonial Treasurer for payment coeta if ac
accordingly. If, after notice of such admission has been served!^ on the M*"*^";.
claimant, fiis solicitor ar agent, the claimant shall proceed with such aetion, admiarion '



Digitized by VjOOQIC



88



NEW ZEALAND LAND TEANSFER ACT.



Liability of
plaintiff for
costs



In case of
fraud com-
pensation
paid and
costs, how
recovered



Jndgment
for such
moneys maj
be signed
against ab-
t>oonders,&c.



Judgment
may be re-
covered at
any time



and shall recover no more than the amount admitted, he shall not be entitled
to recover any costs as against the nominal defendant, and shall be liable to
such defendant for the costs of defending the action in like manner as if
judgment had been given for the defendant in such action. {OaJcden v.
Oibbsy 7 ; Fotheringham v. Archer, 10 , 8mall and another v. Olen, 20 ;
Chomley t. Mrebrace, 21 ; Anderson v, Maori Hill Borough, 103 ; Schroeder v.
Harcourt, 104 ; Van Damme v. Bloxam, 105. {See note to See. 180, ante.
N. 120 ; Q. 61, 128 ; S. 208 ; T. 62, 128 ; V. 66, 157.)

181- If, in any such action, judgment be given in favour of the nominal
defendant, or the plaintiff discontinue or become nonsuited, the plaintiff
shall be liable to pay the full costs of defending such action ; and the same
when taxed, shall be levied in the name of the nominal defendant. by the like
process of execution as in other actions on the case. (8?e note to Sec. 180
ante,)

182. Whenever any sum of money has been lawfully paid out of the
Assurance Fund as compensation for any loss occasioned by fraud, or by
fraudident omission, misdescription, or misrepresentation of any kind on the
part of any proprietor in bringing land under this Act or under the Acts
hereby repealed or by fraud on the pari of any person causing or procuring
himself to be registered as a proprietor under the said Acts, or either of them,
by virtue of anv dealing with or transmission from a registered proprietor, the
amount of sucn compensation, together with all costs incurred in testing or
defending any claim or action in relation thereto, shall be deemed a debt due
to the Crown from the person legally responsible for such fraud, fraudulent
omission, misdescription, or misrepresentation, as the case may be, and may
be recovered from nim, or from his personal representatives, by action at
law, in the name of the Eegistrar-General, or, in case of bankruptcy, may
be proved as a debt due from his estate. A certificate signed by the Colonial
Treasurer, verifying the fact of such payment out of the Assurance Fund,
shall be prima facie proof that such payment was made as aforesaid. All
moneys recovered in any action as aforesaid shall be paid to the credit of the
Assurance Fund. All costs incurred by the Eegistrar- General with the
sanction of the Attornejr-Q-eneral in prosecuting, testing, or defending any
claim or action under this Act shall be paid out of the Assurance Fund.
(N. 84 ; Q. 61, 103 ; T. 62-85 ; V. 66, 120, 144.)

183* Whenever any amount has been paid out of the Assurance Fund
on account of any person who may have absconded, or who cannot be found
within the jurisdiction of the Supreme Court, and may have left any real or
personal estate within New Zealand, the said Court, or a Judge thereof,
upon the application of the Registrar- General, and upon the production of
a certificate signed by the Colonial Treasurer certifving that the amount has
been paid in satisfaction of a judgment against the Registrar- G^eneral as
nominal defendant, may allow the Registrar-General to sign judgment
against such persons forthwith for the amount so paid out of the Assurance
Fund, together with the costs of the application ; and such judgment shall be
final, and signed in like manner as a nnai judgment by confession or default
in an adverse suit, and execution may issue immediately. (Q. 61, 133.)

184. If such person shall not have left real or personal estate within
the Colony sufficient to satisfy the amount for which execution may have
been issued as aforesaid, the Registrar- General may recover such amount,
or the unrecovered balance thereof, by action against such person at any
time thereafter he may be found within the jurisdiction of the Supreme
Court.



Digitized by VjOOQIC



NEW ZEALAND LAND IBANSPBE ACT. 89

185. The AMurance Fond shall not under any drcunistanoes be liable
for compensadon — ^For any Iom, damage or deprivation occasioned by the nilllbii^Ur.
breach by a registered proprietor of any trust, or in any case in which the uinoMeB
B&me land may haye been included in two or more grants from the Crown ;

or for any loss by reason of the improper use of the seal of any corporation
or company, or by reason of the registration of any instrument executed by
any person under any legal disability, unless the fact of such disability was
disclosed on the instrument by virtue of which such person was registered as
proprietor, or by reason of the improper exercise of any power of sale or
re-entry, notwithstanding the effect that may have been given to the same
by ent^ on the Eegister. (S. 211, 214.)

186. No person shall, as against the Begistrar- General or thevaiaeof
Assurance Fund, be entitled to recover any greater amount for compensation Jfjeroi^
in respect to loss or deprivation of any land, or of any estate or interest tion to be
therein, than the value of such land, estate, or interest at the time of such £^^1^^'
deprivation, together with the value of the messuages and tenements erected
thereon and improvements made thereto (if any) prior to the time of such
deprivation, with interest at the rate of five per centum per annum to the

date of judgment recovered ; and in case the Assurance Fund for the time
being snail be insufiBcient to satisfy any claim the deficiency shall be
paid out of the consolidated revenue of the Colony, and shall be a first
charge upon the Assurance Fund. (Mudgway v. Davy and Buick, 1.)

187* No action for the recovery of damages as aforesaid shall lie or be Limiutioik
sustained against the Eegistrar-General unless such action shall be ®'*°*^***"
commenced within the period of six years from the date when the right to
bring such action accrued ; but a,nj person being under the disabilty of
coverture, infancy, unsoundness of mind, or absence from the Colony, may
bring such action within three years from the date on which such disability
sbali have ceased. {Be O'Brien, 34; Moyle v. Gibbt, 49. N. 122; T.
62-130; V. 66-149.)

188* The plaintiff in any such action, or the plaintiff in an action for Pkintub to
the recovery of land, shall be nonsuited in any case in which the loss or ^^225^***^
deprivation complained of may have been occasioned through the bringing prored
o£ land under this Act, if it shall be made to appear to the satisfaction of
the Court before which such action shall be tried that such plaintiff or the
person through or under whom he claims title had notice, by personal service
or otherwise, or was aware that application had been made to bring such
land under this Act, and had Wilfully, negligently, or collusively either
omitted to lodge a caveat or allowed such caveat to lapse. (Much way v.
Davy and Buick, 1 ; Lauch v. Ball, 9 ; Featherstone v. Ranlon, 163. S. 216.)

Fboiection or Pubohasebs.

189. Except in the case of fraud, no person contracting or dealing PnrohMer
with or taking or proposing to take a transfer from the registered proprietor ^JS^''
of any registered estate or interest shall be required or in any manner con- pnetomotto
cemed to enquire into or ascertain the circumstances in or the consideration bJ^ti.J?*
for which such registered o^ner or any previous registered owner of the
estate or interest in question is or was registered, or to see to the applica-
tion of the purchase-money or of any pare thereof, or shall be affected by
notice, direct or constructive, of any trust or unregistered interest, any rule



Digitized by VjOOQIC



90 NEW ZEALAND LAND TEANSFEB ACT.

of law or equity to the contrary notwithstanding, and the knowledge that
anj such trast or unregistered interest is in existence shall not of itself be
imputed as fraud. (FeatherHone y, Banian^ 4; Mann v. Bobertson, 191.)

No HabiH^ 190. Nothing in this Act contained shall be so interpreted as to leaye

pQTohaa£or subjoct to actiou f or recoyer^ of damages, or to action for possession, or to
mortgagee depriyatiou of the estate or mterest in respect to which he is registered as



Online LibraryAustraliaThe land transfer laws of Australasia: being the full text with side notes ... → online text (page 21 of 83)