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

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General shall in every such case enter in the register book and on the """p^
certificate of title when delivered up the particulars by this Act prescribed
to be entered in the case of cancelling a certificate of title consequent on a
transfer or transmission Provided also that previous to issuing any such
new certificate of title the Eegistrar-General may require the title of the



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118 QUEENSLAND EEAL PEOPEETT ACT— No. 1.

person claiming to be entitled in remainder to be inyestigated and may cause
advertisements to be published as hereinbefore directed in the case of
applications for bringing land under the provisions of this Act and shall
receive the same fees and payments including the sum payable to the
assurance fund as are required to be paid by persons applying to bring land
under the provisions of tnis Act. {Bailey v. Chrisp, 64.)

Jj^JJJ^f 39. Whenever the life estate in any land in respect to which a certifi-

derman not cato of title has been issued shall have determined it shall not be lawful for
bmdmTta' the reversioner or remainderman entitled to the next estate of freehold in
brought possession to transfer or otherwise deal with such land until he shall have
proAsioM brought his estate therein under the provisions of this Act and the death of
oi thifl Act a tenant for life shall not operate to defeat or in any way prejudice any

lease mortgage or other dealing lawfully made by such tenant for life and

duly registered under the provisions of this Act.

TO^teredM ^0. Two or morc persons who may be registered as joint proprietors of
jomtpro. an estate or interest in land under the provisions of this Act shall be
E^joint ^ deemed to be entitled to the same as joint tenants and in all cases where
tenants two Or moro persons are entitled as tenants in common to undivided shares
Tenants in of or lu any land such persons shall be bound to receive separate and
M^dJe^ftSi ^i8*i°ct certificates of title or other instruments evidencing title to such
a^distinct undivided shares. (Ex parte Locke, 43. N. 86 ; Z. 54 ; S. 74 ; T. 62-88 ;

^^oateofy^ 66-44.)

Peroontago 41. Upon the first bringing of land under the provisions of this Act

u> be*ieSed whether by the alienation thereof in fee from the Crown or consequent upon
•noe^futie ^^® application of the proprietor of an estate of freehold as hereinbefore
*"*** ^ * provided and also upon the registration of the title to any land under the
provisions of this Act derived through the will or intestacy of a previous
proprietor there shall be paid to the Eegistrar-General the sum specified in
the list marked E in the schedule hereto and in the case of land brought
under the provisions of this Act by alienation of the fee from the Crown the
price paid for such land shall be deemed and taken to be the value thereof
for the purpose of levying such sum and in all other cases as aforesaid such
value shall be ascertained by the oath or solemn affirmation of the applicant
or person deriving such land by transmission Provided always that if the
Eegistrar- General shall not be satisfied as to the correctness of the value so
declared or sworn to it shall be lawful for him to require such applicant or
person deriving such land by transmission to produce a certificate of the
value under the hand of a sworn appraiser which certificate shall be received
as conclusive evidence of the value for the purpose aforesaid. {Moyh v.
Qihls, 49. N. 27 ; T. 62-28 ; V. 66-30.)

AsBontnoe 42. All Bums of mouey 60 received as aforesaid shall be paid to the

Stm^^Sb Treasurer of the colony who shall from time to time invest the same in
<*overmnent Queensland Government securities together with all interests and profits
socnn es ^^^ ^^^ hdkVQ accrucd thereon to constitute an assurance fund out of which
shall be made good the full amount awarded by any verdict judgment or
decree of court to any person deprived of any land or of any estate or
interest therein by bringing such land under the provisions of this Act
or by the issue of any certificate of title or by the registration of any trans-
mission transfer or other dealing with land under the provisions of this Act
failing recovery from the person who derived benefit ^therebyj* Provided
always that in case of the insufficiency of such assurance fund the full



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QUEENSLAND BBAL PROPERTY AOT—No. 1. 119

amount so awarded shall be made good to the person entitled thereto out of
the general revenues of the said colony Provided also that no person shall
be entitled to be indemnified out oi the said assurance fund or general
revenue of the colony for anj loss occasioned by any breach of trust or
default committed by any trustee guardian committee of a lunatic or of a
person of unsound mind executor administrator or other person standing in
the relation of trustee to any other person. (T. 62-29 ; V. 66, 143.)

43. No instrument shall be effectual to pass any estate or interest in inrtraments
any lands under the provisions of this Act or to render such land liable as SStiTlSi^
security for the payment of money until such instrument shall have been wfnrtry
registered in accordance with the provisions of this Act but upon the ^
registration of any such instrument the estate or interest intended to be
thereby granted or conveyed shall pass or as the case may be the land shall
become liable as security in the manner and subject to the covenants and
conditions set forth in such instrument or by this Act declared to be implied

in instruments of a like nature and if two or more instruments executed by
the same proprietor purporting to transfer or encumber the same estate or
interest should be at the same time presented to the Eegietrar-General for
registration and endorsement he shall register and endorse that instrument
under which the person claims property who shall produce to him the grant
or certificate of title of such land. (N. 36 ; S. 67 ; T. 62-39 ; V. 66-61 ;
Z. 32-36.)

44. Notwithstanding the existence in any other person of any estate Etute of
or interest whether derived by grant from the Crown or otherwise which '^'JfJJ^
but for this Act might be held to be paramount or to have priority the piremoant
registered proprietor of land or of any estate or interest in land shall except Noalsu"*
in the case of fraud hold the same subject to such encumbrances liens estates

or interest as may be notified by entry or memorial on the folium of the
register book constituted by the land grant or certificate of title of such
land but absolutely free from all other encumbrances 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
registered under the provisions of this Act and except as regards the
omission or misdescription of any right-of-way or other easement created in
or existing upon the same land or the wrong description thereof or of its
boundaries. (Hassett v. Colonial Bank, 138. N. 40 ; Z. 55 ; T. 62-40 ;
V, 66-49.)

45. Whenever a memorial of any instrument shall have been entered Memorial to
in the register book the Register- General shall record the like memorial on ^®y*^®^
the duplicate grant of certificate of title lease or other instrument evidencinff ^ror^*
title to the estate or interest intended to be dealt with or in any way oflfected ^J"'*^"
unless he shall in any case dispense with the production of the same and he

shall endorse on every instrument so registered a memorandum of the day
and hour on which the said memorial was entered in the register book and
shall authenticate each such endorsement by signing his name and affixing Eodone.
his seal thereto and every instrument so endorsed and authenticated shall wr^^SSt
be received in all courts of justice as conclusive evidence of the particulars Oenenltto '
therein set forth and of all covenants conditions and matters therein '^•^^•"<»
expressed or by this Act declared to be implied and that such instrument
has been duly registered. {Aubrey v. 8cott, 79. N. 38 ; Z. 35 ; S. 53 j T.
62-38; V.66-41.)



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120 QUEENSLAND BEAL PEOPEBTT ACT— No. 1.

Surrendered 46. So soon as any land shall have been brought under the proyieions
^^^^^ of this Act no transferee or mortgagee shall be entitled to the production
d»ted prior of any deed or other instrument surrendered by the proprietor or any
MrtSSate^^of memorandum of transfer or other instrument dated prior to the existing
*>JJ^j^uobe certificate of title of such land unless such instrument be recorded in the
^°4i Vie register book and upon the existing certificate of title as an encumbrance
No.i8i« lien or interest affecting the said land Provided that nothing herein con-
tained shall interfere with any order that may be made by a judge of the
Supreme Court for the production of any such deed or instrument. (^Be
Craig, 76. N. 78-5 ; S. 220-1 ; V. 66-126.)
Bjv«rioo- 47. The bringing of land under the provisions of this Act shall not be

prea^red h^ld to extinguish the reversion expectant on any lease and tbe nerson
named in any certificate of title as seised of the land therein described shail
be held in every court of law and equity to be seised of the reversion
expectant upon any lease that may be noted by memorial thereon and to
have all powers rights and remedies to which a reversioner is by law
entitled. {Featherstone v. Hanlon, 1 ; ea parte Botoan, 18 ; re Wm Biggs,
59 ; D'AlhrydUll v. D'Albryhdill, 82 ; Kelly v. Fuller, 139 ; Formby v.
Adelaide Chrporation, 199. N. 88 ; Z. 18 ; T. 62-89 V. 66-54.)
^i'nuii<'«r . 48* When land under the provisions of this Act is intended to be

No!^8mT£ transferred the transferor shall execute a memorandum of transfer in form
MS6 861728 J} of the schcdulo hereto and every such memorandum shall be attested by
a witness and shall for description of the land intended to be transferred
refer to the grant or certificate of title of such land or shall give such
description as may be sufficient to identify that particular portion of land
intended to be transferred and shall contain an accurate statement of the
estate or interest intended to be transferred and a memorandum of all
mortgages and other encumbrances affecting the same and if such land be
leased the name and description of the lessee with a memorandum of the
lease. (N. 42 ; Z. 76 ; 8. 96 ; T. 62, 42, 86-137 ; V. 66, 57.)

foBttaSiibe ^®* ^ *^^ ®^^^ memorandum of transfer purports to transfer an
tntnsferred ostato in foo-simple in the whole or in any part of the land mentioned in
^|^bS*^^any grant or certificate of title the transferor shall deliver up the grant
deUvered up or certificate of title of the said land and the Eegistrar-General shall in
oeUed^ far ^uch caso enter on such grant or certificate of title a memorandum cancelling
SSe'^orti* *^® same either wholly or partially according as the memorandum of transfer



of^ii^d ^ purports to transfer the wnole or part only of the land mentioned in such
teMrferred grant or certificate of title and setting forth the particulars of the transfer

intended to be effected. (N. 44, 135 j T. 62-44.)
tiS^^to"be 50. The Eegistrar-General upon cancelling any grant or certificate of
issaed to title either wholly or partially pursuant to any such transfer shall make out
^^*4i Vic. ^ *^® purchaser or other registered transferee a certificate of title to the
No. 18 •. 17 land mentioned in such memorandum of transfer and every such certificate

of title shall refer to the original grant of such land and to the memorandum
for^tt?^**** or other instrument of transfer to the purchaser or other registered trans-
uunoo if f eree thereof and the Eegistrar-Oeneral shall retain every such cancelled
SS^SlK' ^^ partially cancelled grant or certificate of title and whenever required
issued to thereto by the proprietor of an unsold portion of land included in any such
whwi d«?' partially cancelled grant or certificate of title or by a registered purchaser op
• relrisu^ transferee of such portion or of any part thereof shall make out to such ppo-
traosferee priotor purchaser or transferee a certificate of title for such portion or for
*'*®'*®' the part thereof of which he is the proprietor purchaser or transferee. (See

note to Sec. 81, ante. N. 45, 127 ; T. 62, 45, 86, 14.)



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QUEENSLAND REAL PEOPERTY ACT— No. 1. 121

5L Wheneyep any easement or any incorporeal right other than an :
annuity or rent charge affecting any land under the provisions of this Act rijjff 2J^
is created for the purpose of heing annexed to or used and enjoyed together ^RfJ^,
with other land under the provisions of this Act the Registrar- General shall No. is •.as*
enter a memorial of the instrument creating such easement or incorporeal
right upon the folium of the register hook constituted by the existing grant
or certificate of title of such other land. {Anderson v. Maori Mill Borouffh,
laS, 124. N. 43 ; Z. 61 ; S. 81 ; T. 62-43 ; V. 85-41.)

52. When any land under the provisions of this Act is intended to be Jjf^^^*
leased or demised for a life or lives or for any term of years exceeding three nmu^f thu
years the proprietor shall execute a lease in form E of the schedule hereto {^^^
and every such lease shall refer to the description that is given in the grant fs^ 41 Vic.
of certificate of title of the land or shall give such other description as may ^** ^® '* ^^
be necessary to identify such land and shall be attested by a witness Pro- ^^ ^^^ft^
vided always that no lease of mortgaged or encumbered land executed S^?fXi
subsequently to the registration of any bill of mortgage or bill of encum- JJStSf morti
brance shall be valid and binding against the mortgagee or encumbrancee gagM
unless such mortgagee or encumbrancee shall have consented to such lease
prior to the same being registered. {Oriffin v. Dunn, 8 ; Kirkham v. Julien,
109. N. 49 ; T. 62-47 ; V. 66-76.)

53* In any such lease a right to purchase the fee-simple oi the land ^j^^
thereby demised may be granted to the lessee by a stipulation to that effect maj be
expressed in such lease or a covenant to purchase the fee-simple of the said JJJ^t*'
land may be entered into by the lessee and in such case the true amount of sUpaiated
the purchase money to be paid the period within which such right may be
exercised or such covenant is to be performed and such other particulars as
may be considered necessary for explaining the terms of such right or
covenant shall be stated on such lease and in case the lessee shall pay the
purchase money stipulated and otherwise observe his covenants expressed
and implied in such lease the lessor shall be bound to execute a memorandum
of transfer to such lessee of the said land and the fee-simple thereof and to
perform all necessary acts by this Act directed to be done for the purpose
of transferring to a purchaser any land and the fee-simple thereof. (Z. 87.)

54. Whenever any lease or demise which is required to be registered J**^ "•{
by the provisions of this Act is intended to be surrendered and the surrender der«d by en-
thereof is effected otherwise than through the operation of a surrender in J^^^^J^*
law or than under the provisions of any law at the time being in force in inth oon-
the said colony relating to insolvent estates there shall be endorsed upon ^^^^ ^'
such lease or on the counterpart thereof the word " surrendered *' with the
date of such surrender and such endorsement shall be signed by the lessee
and by the lessor as evidence of the acceptance thereof and shall be attested
by a witness and the Registrar-General thereupon shall enter in the register
book a memorandum recording the date of such surrender and shall likewise
endorse upon the lease a memorandum recording the fact of such entry
having been made in the register book and upon such entry being so made
in the register book the estate or interest of the lessee in such land shall
revest in the lessor or in the person in whom having regard to intervening
circumstances (if any) the said land would have vested if no such lease had
been executed and production of such lease or counterpart bearing such
endorsement and memorandum shall be sufficient evidence that such lease
has been so surrendered. (Kearton v. Bicharthon^ 125. N. 50 ; Z. 89 : 8,
82, 120 ; T. 62-48, 157, 66-82.)

10



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122 QUEENSLAND EEAL PEOPEETT ACT— No. 1.

Prooee^s 55* Whenever any lease sliall be delivered up by an insolvent lessee
toed'^^?** under the provisions of The Insolvent Act to tbe lessor in consequence of the
Official Assignee having declined to accept the same the Eegistrar-G^neral
upon proof to his satisfaction by affidavits or other v^ise that the Official
Assignee has declined to accept such lease shall enter in the register book a
memorandum to that effect and shall also endorse upon such lease a memo-
randum of the fact of such entry having been made. (Wildash v. Sutchiion^
132. N, 76 ; Z. 119 ; S. 173 ; T. 62, 66, 77 ; V. 66-107.)



Si8A<rtW 56. Whenever any land or any estate or interest in land under the provi-
mortgaged sious of this Act is intended to be charged or made security in favour of any
or^oum. mortgagee the mortgagor shall execute a bill of mortgage in form F of the
schedule hereto and whenever any such land estate or interest is intended
to be charged with or made security in favour of any encumbrancee for the
payment of an annuity rent-charge or sum of money the encumbrancer
sball execute a bill of encumbrance in form G of the schedule hereto and
every such bill of mortgage or bill of encumbrance sball contain an accurate
statement of the estate or interest intended to be mortgaged or encumbered
and shall refer to the description given in the grant or certificate of title of
the land in which such estate or interest is held or shall give such other
description as may be necessary to identify such land together with a state-
Priority of ment of all mortgages and other encumbrances affecting the same (if any)
STd^^- and every such bill of mortgage or bill of encumbrance shall be attested by
T^STi Vic * ^^*°®'^8 and shall be registered in the order of time in which the same is
No. 18 b. 12' produced to the Eegistrar- General for that purpose and bills of mortgage
and bills of encumbrance registered in respect to or affecting the same
estate or interest shall notwithstanding any express implied or constructive
notice be entitled to priority one over the other according to the date of
registration and not according to the date of each instrument itself. (Mudg-
way V. Davy if Buicky 1 ; Sharpe v. Eadley, 3 ; D'Albrdyhill v. JD'Albrdykill^
82 ; Kissling v. MitcheUon, 123 ; Wildash v. Hutchison, 132 ; ex parte Pen-
nington, 64. N. 64; T. 62-52.)

^^Sori^ 57« In case default shall be made for the space of one calendar month

^ororen- iu payment of the principal money or interest or any part thereof secured
taS^dJfeiUt ^y *°y registered bill of mortgage or if default shall be made in the obser-
vance of any covenant that may be expressed in such bill of mortgage or
that is therein as against the mortgagor declared to be implied as hereinafter
provided or in case such default for the space aforesaid shall be made in
payment of the annuity rent-charge principal money or interest or any part
thereof secured or charged by any registered bill of encumbrance or if
default shall be made in the observance of any covenant that may be
expressed in such bill of encumbrance or that is therein as against the
encumbrancer hereinafter declared to be implied the mortgagee or encum-
brancee after giving to the mortgagor or encumbrancer noticein writing to
pay the money then due or owing on such bill of mortgage or bill of encum-
brance or to observe the covenants therein expressed or implied as the case
may be or after leaving such notice on the mortgaged or encumbered land
or at the usual or last Known place of abode in Queensland of the mortgagor
or encumbrancer or other person claiming to be then entitled to the said land
and after such default in payment or in observance of covenants continuing
for the further space of one calendar month from the date of such notice
is hereby authorised and empowered to sell the said land so mortgaged or
encumbered or any part thereof and dlX the estate and interest therein of



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QUEENSLAND EEAL PEOPEBTY ACT— No. 1. 123

the mortgagor or encumbrancer and either altogether or in lots by public
auction or by private contract or by both such modes of sale and subject to Power to leU
such conditions as he may think fit and to buy in and re-sell the same with-
out being 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 hereby authorised shall be as valid and
effectual as if the mortgagor or encumbrancer had made done or executed
the same and the receipt or receipts in writing of the mortgagee or encum-
brancee shall be a sufficient discharge to the purchaser of such land estate fi«oeipt or
or interest or any portion thereof tor so much of his purchase monev as "*enf uST
may be thereby expressed to be received and no such purchaser shall be J^^^
answerable for the loss misapplication or non-application or be obliged to duoh*rKe to
see to the application of the purchase money by him paid nor shall he be »P"«i»^
concerned to enquire as to the fact of any default notice or requisition
having been made or given as aforesaid and the purchase money to arise ApproprU-
from the sale of any such land estate or interest shall be applied first in p^*^,^
payment of the expenses occasioned by such sale secondly in payment of ^^j^g^jj*
the moneys which may then be due to the mortgagee or encumbrancee and
the surplus if any shall be paid to the mortgagor or encumbrancer as the
case may be. (Be MeOartny, 19 ; Bume v. Stewart, 28 ; Bank of N, 8, W,
V. Palmtr^ 108 ; Boas v. Victorian Permanent Building Society, 180 ; Miller
V. Morrieeey, 181 ; Beath v. Anderson, 192. N. 56, 59 ; Z. 100 ; S. 133, 134,
137 ; T. 62-54, 98-99 ; V. 85, 44.)

58. Upon the registration of any memorandum or instrument of transfer Registrar-
executed bv a mortgagee or encumbrancee for the purpose of such sale as 2ve*5i^to
aforesaid the estate or interest of the mortgagor or encumbrancer therein Mie Ij
described as to be conveyed shall pass to and vest in the purchaser freed and ™®enc^
discharged from all liability on account of such mortgage or encumbrance or bnmoee

of any mortgage or encumbrance registered subsequent thereto and if such
memorandum of transfer purports to pass an estate in fee-simple the pur-
chaser shall be entitled to receive a certificate of title for the same. {Miller
V. Morrusey, 181. N. 56, 57 ; T. 62-154 ; V. 66-85.)

59. The payment of any sum of money by weekly instalments or other paymenteby
periodical payments may be secured on any land or on any estate or interest in»i»im©iita
therein by bill of mortgage or bill of encumbrance in the form E or G^ of the
schedule hereto by varying such form so as to express fully the terms and

modes of payment of such sum of money Provided also that the period of Power to
time hereinbefore limited as the period after expiration of which it shall eSiSSg **'
be lawful for a mortgagee or encumbrancee to sell an estate pledged as payment
security in the event of default made in payment of interest or principal or
of any annuity or rent-charge or in consequence of the non-fulfilment of
any covenant may by condition expressed in any such bill of mortgage or
bill of encumbrance be extended or shortened and notwithstanding such
variations in such form the like covenants rights powers and obligations
shall be implied thereunder and thereby both against the mortgagor or
encumbrancer and the mortgagee or encumbrancee as would be implied if
no such variation had been made. (^N. 56 ; S. 135 ; T. 62-54.)

60* Every bill of mortgage and bill of encumbrance shall be construed Bin of mort-
and have effect only as a security for the sum of money annuity or rent- JJ^J^f^
charge intended to be thereby secured and shall not operate or take effect brance not »
as a transfer of land estate or interest intended to be thereby charged with ^^^^^^^
the payment of any money but it shall be lawful for the mortgagee or



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124 QUEENSLAND EEAL PSOPEETY ACT— No. 1.

In oMe of encumbranoee upon default in payment of the moner secured by Buch bill



Online LibraryAustraliaThe land transfer laws of Australasia: being the full text with side notes ... → online text (page 26 of 83)