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

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mortgagor of any land subject to mortgage to bring such land under the
provisions of this Act unless the mortgagee shall consent in such application
nor from the mortgagee of any land except in the exercise of a power of sale
contained in the mortgage deed nor from tne proprietor of any land in respect
to which any judgment may have been entered up unless the judgment
creditor shall consent to such application.

17, Every such applicant shall in his application state the nature of his Applicant to
estate or interest in such land and of every estate or interest held therein by ^Xuments
any other person whether at law or in equity in possession or in futurity or oftiUesnd
expectancy and whether the land be subject to dower and whether it be reqtdred'
occupied or unoccupied and if occupied the name and description of the
occupant and the nature of his occupancy and whether such occupancy be
adverse or otherwise and shall state the names and addresses of the occu-
pants and proprietors of all lands contiguous to the land in respect to which



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112 QUEENSLAND REAL PEOPEETT ACT— No. 1.

application is made so far as known to him and shall make and subscribe a
declaration of the truth of such statement and shall deposit with the
Begistrar-G-eneral all instruments in his possession or under his control
constituting or in any way afFecting his title to such land and also if required
a map or diagram of all lands included in such application and an abstract of
title m which he shall set forth and describe OTorj instrument constituting
or in any way affecting his title to such land together with the names and
so far as shall be within his knowledge the addresses of all persons if any
seised or possessed of anj estate or interest in such land at law or in equity
in possession or in futurity or expectancy and shall make and subscribe a
declaration of the truth of such abstract and that he has deposited with the
Eegistrar-Greneral all deeds or other instruments in his possession or under
his control constituting or in any way affecting his title to such land or if
such applicant be the sole and only person haying estate or interest in such
land then he shall make and subscribe a declaration to that effect. (Rather-
stone y, Hanlon,^\ re Sellars, 82 ; re O'Brien^ 34 ; Patchell v. Maunsell, 113 ;
re Wm. Wadham, 114 ; CuthberUon y. Swann, 144. N. 14 ; Z. 19 ; 8. 29,
162; T. 62-16.)

When »ppu. Ig, TJpon the receipt of any such application the Registrar-General
^et^Hs Bhall refer the same to the Master of Titles for his consideration and if it
°"*^wid ^^^^ appear to him that the applicant is the original grantee from the Crown
^nouo. of the land in respect to which application is made and that no sale mort-
tll^ pSaoe S^® ^^ other encumbrance or transaction affecting the title to such land
oertiflcftt«to has at any time been registered then and in such case it shall be lawful for
Sk S(M**** the Eegistrar-Q-eneral to bring such land under the provisions of this Act
forthwith by issuing to the applicant or to such person as he may by writing
under his hand direct or appoint a certificate of title for the same as herein-
after described. (Ifall v. Loder, 168. N. 15.)

AppUoatioBt ' 19. If it shall appear to the satisfaction of the said Master of Titles

tisSfwhln' that the land in respect to which application is made is held by the appli-

there we cant for the estate or interest described therein free from mortgage encum-

^rtgages brance or other beneficial interest affecting the title thereto or if any such

No''i8i ^0 ' mortgage encumbrance or interest remains unsatisfied that the parties

interested therein are also parties to such application then and in any such

case the Registrar-General shall cause notice of such application to be

adrertised once in the Queensland Oovemment Gazette and three times in

at least one newspaper published in the colony and shall further limit and

appoint a time not less than one month nor more than twelve months from

the date of such advertisement in the Government Gazette upon or after

the expiration of which the Registrar- General shall unless he shall in the

interval have received a caveat forbidding him so to do proceed to bring such

land under the provisions of this Act.

Appiiofttioiui 20. If it shall appear to the satisfaction of the said Master of Titles

tto^whe^ that any parties interested in any unsatisfied mortgage or encumbrance

title not affecting the title to such land or beneficially interested therein otherwise

complete ^\^^j^ as lessees are not parties to such application or that the evidence of

title set forth by such applicant is imperfect or incomplete it shall be lawful

for the Master of Titles to reject such application altogether or to direct

the Registrar- General to cause notice of such application to be published in

the Queensland Government Gazette and in the London Gazette and in the

official Gazettes of each of the colonies of New South Wales Tasmania New



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QTJEENSLAND BEAL PEOPEETT ACT— No. 1. 113

Zealand Victoria South Australia and Western Australia or in any one or
more of such QazetteB and the said Ee^strar-General shall specify the
number of times and at what intervals such adyertisement shall be published
in each or any of such Gazettes and shall also limit and appoint a time not
less than two months nor more than three years from the date of the first of
such adyertisements in the Queensland Government Gazette upon or after
the expiration of which it shall be lawful for the Eegistrar- General to bring
such land under the provisions of this Act unless he shall in the interval have
received a caveat forbidding him so to do.

21. It shall be lawful for the Eegistrar-G-eneral of his own accord or Notice of
at the request of the applicant to direct that notice of any application to ^^"^^^
bring land under the provisions of this Act shall at the expense of the appli- by ^wonai
cant be given by personal service to any person named in such direction and throagh^the
the Eegistrar-General shall preserve in his office the affidavit or other JJ'*^Jg^
evidence of such personal service and the proof of such personal service or ment.
that any person had received notice of suca application through the post or

by advertisement as herein directed or was cognizant of such application
having been made shall operate to bar any action of ejectment or for the
recovery of compensation from the person benefited by the bringing of such
land under the provisions of this Act or from the assurance fund at the suit
of any person so personally served with notice or receiving notice through
the post or otherwise cognizant of such application or at the suit of any
person claiming through under or from him unless it shall be shown to the
saiisfaction of the court before whom such action shall be tried that such
notice was not received or such cognizance acquired in time to enable such
person to lodge a caveat forbidding the bringing of such land under the
provisions of this Act as hereinafter provided. (Featherstone v. Hanlon, 4i ;
ex parte Rowan ^ 14 ; Satmders v. Cabot, 15 ; Chomley v. Mrebrace, 21; re J'.
B. Slack, 35 ; re Nelson Brothers, 36 ; Warner v. Dove, 37 ; Coleman and
Clark V. Biria, 46 ; Summers ex parte Aylwin, 62 ; Van Damme v. Bloaham,
105 ; Kirkham v. Julien, 109 ; Franklin v. Ind, 156 ; Otago Harbour Board
V. Spedding, 165a. ; Shackell v. Lindsay^ 174 ; Boss v. Victorian Fermanent
Building Society, 180. N. 18 ; Z. 24 ; S. 35, 38 ; T. 62, 19, 69, 31, 81-19 ;
V. 85-12, 66-130.)

22. The Eegistrar-General shall under such direction as aforesaid or Notice of
under any order of the Supreme Court cause notice to be published in such JJ'Sb pu£^
manner as by such direction or order may be prescribed that application has iiah«d
been made for bringing the land therein referred to under the provisions of Lands
this Act and shall also cause a copy of such notice and of the map or $JJ^^*^
diagram included in such application to be posted in a conspicuous place in

his office and in such other places as he may deem necessary and shall
forward through the post office copies of such notice and of such map or
diagram addressed to all persons if any declared by the applicant to be in
occupation of such land or to be occupants or proprietors of land contiguous
thereto and also to such persons as may upon investigation of the title
appear to have previously held estate or interest in the fee of such land so
far as his knowledge of the addresses of such persons may enable him or
shall cause the like notice to be served personally upoli any person that he
may think fit or that the applicant may request and unless within the time
limited in such direction or order he shall have received a caveat as herein-
after described forbidding him so to do he shall bring such land under the
provisions of this Act by issuing to the applicant or to such person as he



16



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114 QUEENSLAND EEAL PBOPBETT ACT— No. 1.

may by any writing under bis band request or direct a certificate of title for
tbe same as bereinafter described. (8ee note to See, 21, ante. N. 19 ; Z.
17 ; S. 26, 27 ; T. 62-20 ; V. 66, 34.)

^t^lted 23, It sball be lawful for any person baying or claiming an interest in

iMj enter any land so advertised or for tbe attorney of any sucb person witbin tbe
**^*^ time tbat may be limited by sucb direction or order as aforesaid to lodge
witb tbe Segistrar-General a caveat in form B of tbe schedule bereto for-
bidding tbe brinfi^g of sucb land under tbe provisions of tbis Act and every
sucb caveat sball particularise tbe estate interest lien or cbarge claimed by
tbe ^rson lodging tbe same and tbe person lodging sucb caveat sball if
required by tbe Itegistrar- General deliver a full and complete abstract of
bis title wnicb sball contain the same matters and be subject to tbe same
regulations as are hereinbefore prescribed for tbe case of an* abstract
deposited by a person applying to have land brought under the provisions
of this Act. (N. 21 ; S. 89 ; T. 62-22 j V. 118.)

rl3^*^ . ^^ "^^^ Eegistrar- General upon receipt of any such caveat within tbe

within time time limited as aforesaid shall notify the same to tbe applicant and sball

^J^JJJL^ suspend further action in tbe matter and the lands in respect of which such

■tftjed caveat may have been lodged shall not be brought under the provisions of

this Act until such caveat shall have been witndrawn or shall have lapsed

from any of the causes hereinafter provided or until a decision shall have

been obtained from the court having jurisdiction in the matter. (S. 44),

^▼«i^ 25. After the expiration of three calendar months from tbe receipt

pro^edi^ thereof every such caveat shall be deemed to have lapsed unless the person

^^^^^5t£in hy whom or on whose behalE the same was lodged shall within that time

montiis have taken proceedings in any court of competent jurisdiction to establish

bis title to the estate interest lien or cbarge therein specified and shall have

given written notice thereof to tbe Be^strar- General or shall have obtained

from the Supreme Court an order prohibiting the Begistrar-G^neral from

bringing tbe land therein referred to under the provisions of this Act.

^^Jj* ^ 26. The Eegistrar-General sball not notice any caveat prohibiting tbe

not to bar^ bringing of land under tbe provisions of this Act if the person lodging the

^li^d^f same chums only an estate or interest to take effect after the determination

der this Aot. or in defeasance of an estate tail or prohibits tbe bringing of sucb land

under tbe provisions of tbis Act on the plea only of the absence of legal

evidence that a former proprietor was in being and capable at the time when

any power of attorney executed by such proprietor was exercised by bis

attorney in the selling or purchasing or releasing of such land.

mt^wlS? 27. If upon the application of any proprietor to have land of which he

SS^TS^ is seised brou^bt under the provisions of tnis Act the Segistrar-G^neral sball

tcTlIho?**^ refuse so to do or if sucb applicant shall be dissatisfied with the decision

oMiMif upon bis application given by the master of titles it shall be lawful for him

*■"*****•* to require tne Begistrar-General to set forth in writing under his hand the

grounds of his refusal or tbe grounds upon which such decision was given

and sucb applicant may if be think fit at bis own costs summon the

Begistrar-General to appear before the Supreme Court to substantiate and

uphold tbe grounds of nis refusal or of such decision as aforesaid and tbe

summons in every such case shall be issued under the hand of a judge of the

said court at the request of such applicant or bis solicitor and shall be

served upon the Begistrar-G^neral six clear days at least before tbe day

appointed for tbe bearing and every such case shall be beard by tbe said



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QTJEEN8LAND EEAL PEOPERTT ACT— No. 1. 115

court upon motion and if any question of fact shall arise upon the hearing
the said court shall direct an issue to be tried to decide such fact and it
shall thereupon be lawful for the said court to prohibit the bringing of such
land under the provisions of this Act or to order that such land may be
brought under the same after the expiration of such period of time as the
said court shall think fit not exceeding the period limited by any law for the
time being in force in the said colony as the period within which actions of
ejectment may be brought and the Begistrar-General shall obey such order.
{Ex parte Bowman^ 2.)

28. Upon any such motion as aforesaid it shall be lawful for the^^JJf^^
Begistrar-Gheneral or for any person interested in any land touching or oouLei ^
concerning the title to which such motion shall be made by himself or his Expense to
counsel to argue the same before the said court and all expenses attendant ^ ^on® by
upon any of the matters or proceedings aforesaid shall be borne and paid 'pp**°"^
by the person requiring such land to be brought under the provisions of

this Act.

29. It shall be lawful for any applicant to withdraw his application at AppKojmt
any time prior to the issuing of a certificate of title and the Eegistrar- ISJ^ '
General shall in such case upon request in writing signed by such applicant ^^f^'^xTw
return to him the abstract and all instruments of title deposited by nim for Ko.'ia •. 9°'
the purpose of supporting his application. (Z. 27 ; S. 41 ; T. 62, 28 ; Y.

85, 64.)

30* Upon issuing a certificate of title bringing land under the pro- instramenta
yisions of this Act the Eegistrar- General shall stamp as cancelled and retain they^ki^ade
in his office every instrument of title deposited by the proprietor when **^5Jb
making his application Provided that if any such instrument shall relate ntimied to
to or include any property whether personal or real other than the land ^^JTvio.
included in such certificate of title then the Eegistrar-General shall endorse No. is a. so!
thereon a memorandum cancelling the same in so far only as relates to the
land included in such certificate of title and shall return such instrument to
the proprietor otherwise he shall retain the same in his office. Provided also
that the powers or authorities of the husband of any married woman or of
the raardian or committee of any minor lunatic or person of unsound mind
shall in no wise be altered or abridged in consequence of the issuing of any
certificate of title in the name of such married woman minor lunatic or
person of unsound mind. (N. 14 ; Z. 27 ; S. 41 ; T. 62-19 ; V. 66, 26.)

31. In case any person applying to have land brought under the pro- 9?^*?^
visions of this Act or any person to whom any such applicant may have fsaue in
directed a certificate of title to be issued shall die in the interval between JJJJJ^
the date of the application and the date appointed for the certificate of title appiioant
to issue the certificate of title shall be issued in the name of such applicant Saooeasion
or in the name of the person to whom he may have directed it to be issued f^eJtHth
as the case may require and the land shall devolve in the same manner as if thereby,
the certificate of title had been issued prior to the death of such applicant
or person so named by him. (Ibatherstone v. Hanlon, 4 ; Fannan v. Fannan^
18 ; Chomley v. Firebrace, 21 ; .House v. O'Farrell, 51 ; re Hayton, 67 ;
WaUon V. Watson, 93 ; Rail v. Hall, 98 ; Fitzgerald v. Archer, 101 ; Kirk-
ham V. Carpenter^ 111 ; ex parte Mutual Trust Co,, 117 ; Jones v. Jones, 134 ;
Stevens v. Williams, 186 ; Mohertson v. Keith, 195 ; Miller v. Morrissey, 214 ;
Murphy v. Mitchell, 215. N. 26 j Z. 12 ; S. 48, 60 ; T. 62, 137 ; V. 66-28,
188, 88.)



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116 QUEENSLAND BEAL PEOPEETT ACT— No. 1.

Begiatrw. 32. Tbo Segistrar- General shall keep a book to be called tbe '' register

bM*rJ^'*tor ^^^^ " *^^ ^^*^^ enter tbereia the duplicates of all grants and of all certifi-
boJL'^^ cates of title and shall record thereon the particmars of all instruments

affecting the land included under each such grant or certificate of title

distinct and apart. (S. 76 ; V. 66-105.)

SSStoTbe 33. Every certificate of title shall be in duplicate and in the form C of
in dnpUoate the Schedule fiereto and the Begistrar- General shall note thereon in such
bou^upin nia^^er as to preserve their priority the particulars of all unsatisfied mort-
registcr gagos or othcr encumbrances and of every lease rent charge or term of
years or outstanding estate or interest whatsoever affecting such land which
may have been registered or of which he may have notice and if such
certificate be issued to a minor or to a person otherwise under disabilities he
shall state the age of such minor or the nature of the disability so far as
known to him and shall cause one of such certificates of title to be bound
up in the register book and shall deliver the other to the person entitled to
the land described in such certificate and every certificate of title duly
authenticated under the hand and seal of the [Registrar- General shall be
received in all courts of justice as evidence of the particulars therein set
forth and of their being entered in the register book and shall be conclusive
evidence that the person named in such certificate of title or in any entry
thereon as seised of or as taking estate or interest in the land therein
described is seised or possessed of such land for the estate or interest
therein specified and that the nroperty comprised in such certificate of title
has been duljr brought under the provisions of this Act and no certificate of
title shall be impeached or defeasible on the ground of want of notice or of
insufficient notice of the application to bring the land therein described
under the provisions of this Act or on account of any error omission or
informality in such application or in the proceedings pursuant thereto
by the Master of Titles or by the Eegistrar- General. (Pannan v. Pannarij
16 ; re Ferguson, 127 ; Jones v. Jones, 134 ; Finnoran v. Weir, 136. N. 81 ;
S. 48 ; T. 62, 32 ; V. 66-34.)

^"fiiJiaM 34. Every land grant and certificate of title shall be deemed and taken

of tiUe regis- to be registered under the provisions and for the purposes of this Act so
OTobodiJd'in ^oon as the same shall have been marked by the Eegistrar- General with the
registerbook folio and volume appertaining to it in the register book and every memo-
randum of transfer or other instrument purporting to transfer or in any way
to affect land under the provisions of this Act shall be deemed to be so
registered so soon as a memorial thereof shall have been entered in the
register book upon the folium constituted by the existing grant or certificate
of title of such land and every such memorial shall state the day and hour
of the production for the purpose of registration of the instrument to which
I* it relates and shall contain such other particulars as the Eegistrar- General

may direct and shall be signed by the Eegistrar- General and the person
named in any grant certificate of title or other instrument so registered as
seised of or taking any estate or interest shall be deemed to be the registered
proprietor thereof. (Jones v. Farh, 87. N. 32, 34 ; Z. 32 ; 8. 60 ; T. 62-

Upon entry 34; V. 66-41.)
of parti<m-

roentdeSmed 35- So soou as a memorial thereof shall have been entered in the
to be part of register book every instrument drawn in any of the several forms provided
^^^^ in the schedule hereto or in any form which for the same purpose may
Tide 41 vio. be authorised as herein provided shall for the purposes of this Act be
ss^udS^^ deemed and taken to be embodied in the register book as part and parcel



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QUEENSLAND EEAL PEOPBETY ACT— No. 1. 117

thereof and any Buoh instniment when so constractively embodied shall
create and impose the like obligations on the persons signing the same and
for the like period of time as if the same had been sealed and delivered and
ever^ snch instrument presented for registration shall be in duplicate and the
Eegistrar-General upon registration thereof shall file one original in his
office and shall deliyer the other to the person entitled thereto. (N. 84,
282 ; S. 60 ; T. 62-34 ; V. 66-42.)

36. Wheneyer a certificate of title shall have been issued to a proprietor Bamsmder-
in respect of a life estate or any other estate less than an estate in tee-simple ^^<Jd as
the person entitled as remainderman may apply to be entered in the register ""^^
hood as a remainderman and the Eegistrar-G^eneral shall thereupon cause
the title of such applicant to the estate or interest claimed by him to be
investigated and shall take the direction of the Master of Titles thereon and
shall cause advertisements to be published in manner hereinbefore directed
for the case of bringing land under the provisions of this Act and shall pro-
ceed to enter the name of such applicant on the register book as remainder- Name of re.
man of the estate or interest to which he shall appear to be entitled unless a S^be^^S'**"
caveat forbidding such entry shall be received by him within the time for doned on
that purpose limited in such direction or by any order of the Supreme Court ^te*°*** ^^
and the [Registrar- G^eneral shall endorse upon the certificate of title of such
land if produced to him for that purpose a memorandum setting forth that
BQch applicant had been entered in the register book as such remainderman
with the day and hour in which such entry had been made and the Eegistrar-
General shall in every such case receive the same fees and payments
excepting the sum payable to the assurance fund as are required to be paid
hj persons applying to bring land under the provisions of the Act. (N. 88 ;
Z. 18 ; 8. 188 ; T. 62-89, 86-216 ; V. 66-64.)

37* Every remainderman and every person deriving through a Bemunder-
remainderman registered as such in the register books shall thereafter SJ^dSKJch
transfer mortgage encumber or otherwise deal with the estate or interest in F^^^^*^
respect to which he is so registered in manner and by the use of the instru- with estate'
ments and forms by this Act prescribed and not otherwise and the Eegistrar- ®'<^^ ^
General shall enter in the register book the particulars of every memo- iwri^in"'
randum o£ transfer bill of mortgage bill of encumbrance or other instrument ^"^ ^*'
duly executed by a remainderman or person deriving through a remainder- J^J^^lJLjy
man in manner hereinafter directed for the case of transfers mortgages to xuaep»^
encumbrances and other dealings with land under the provisions of this Act. SJ^dSinan
(Miller Y. Stewart, 172.)

38. Upon proof to the satisfaction of the Eegistrar-General that the ^JJJ^J^®^
life estate or other less estate than an estate in fee-simple in respect of issaed to re-
which a certificate of title shall have been issued is determined or has become STioon™*"
vested in the person entitled to the land for the estate next in remainder or hia ertate
that the person to whom such certificate has been issued or a purchaser is t^aJSI^S^



absolutely entitled to the said land for a present estate in fee-simple in inp<»<
possession it shall be lawful for the Eegistrar-General to cancel the exist- Phaser 'c^''
ing certificate of title of such land and in lieu thereof to issue such new ^f^^ *
certificate of title as the nature of the case may require and the Eegistrar- estate in fee-



Online LibraryAustraliaThe land transfer laws of Australasia: being the full text with side notes ... → online text (page 25 of 83)