Australia.

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

. (page 27 of 83)
Online LibraryAustraliaThe land transfer laws of Australasia: being the full text with side notes ... → online text (page 27 of 83)
Font size
QR-code for this ebook


n^r^ee ^^ mortgage or bill of encumbrance or any part thereof to enter into

or enoom- possession of the mor^aged or encumbered land by receiving the rents and

enteraad^^ profits thereof or to distrain upon the occupier or tenant of the said land

SraormS^ under the power to distrain hereinafter contained Provided also that it

distrain shall be lawf ul for any registered mortgagee or encumbrancee whenever any

principal or interest money annuity or rent-charge shall have become in arrear

M^ bring to bring an action of ejectment to obtain possession of the said land either

^60^0^ or before or after entering into the receipt of the rents and profits thereof or

SoL'SSt ™*^^^S ^^J distress as aforesaid and either before or after any sale of such

of redamp. land shall be effected under the power of sale given or implied in such bill

^^^ of mortgage or bill of encumbrance and any such registered mortgagee or

encumbrancee shall be entitled by suit or other proceedings in equity to

foreclose the right of the mortgagor or encumbrancer to redeem the said

mortgaged or encumbered lands. (ChonUevY, Firehraoe^ 21 ; Bume v.

Stewart, 28 ; Barker v. Weld, 81 ; Jellicoe v. VFellington Loan Co., 60 ; Jones

V. Sellick, 78 ; Sandere v. Wadham, 88 ; Beg, v. Tideman, 99 ; Xirkham v.

Julien, 109 ; Boes v. McNeil, 118 ; Hart v. Stratton, 119 ; re Ferguseon, 128 ;

Manning Y. Oroesman, 127 ; Qrey v. Watson, 152. N. 58; Z. 97, 200; S.

137, 138. 140 ; T. 52, 57, 62 ; V. 67-2. See also note to See. 3, ante.)

MortgAffee 61. Besides his personal remedy against the mortgagor or encum-

bJ^^^y brancer as the case may be every mortgagee or encumbrancee for the better

2^1^ on recovery of any principal sum or of any arrears of interest which may be

ooonpiw for <lue uudor any bill of mortgage or of the arrear of any annuity or rent-

^^J^5°<* charge or principal sum or any interest which may be due under any bill of

the Mnoant encumbranco shall be entitled after such principal sum interest annuity or

byTooh^^^ rent-charge shall have become in arrear for twenty-one days and after appli-

t«w&t or cation in writing for the payment thereof shall have been made to the

*****'^**' occupier or tenant to enter upon the mortgaged or encumbered land and

distrain and sell the goods and chattels of such occupier or tenant and to

detain thereout the moneys which shall be so in arrear and all costs and

Ko lenee expenses occasioned by such distress and sale Provided that no lessee or

grestor^ram tenant occupyiuc; such land shall be liable to pay to any mortgagee or

^wt f ^^cumbrancee of such land a greater sum than the amount of rent which at

rentaotuaUy the time of making such distress may be then due from such lessee or tenant

^^^ ^y to the mortgagor or encumbrancer or to the person claiming the said land

under the mortgagor or encumbrancer. (Jellicoe v. Wellington Loan Co.,

50 ; Boss V. McNeil, 118 ; Hart v. Stratton, 119. N. 59 ; 8. 2, 138, 139 ;

T. 62-67, 101 ; V. 66-91 ; Z. 97.)

UcfHg^^ 02, Any mortgagee or encumbrancee of a leasehold interest in land

bn»^of nnder the provisions of this Act or any person claiming through from or

IStT^^^Int ^°^®*^ ^^^^ mortgagee or encumbrancee shall after entering into possession

poMeMionof of the Said land or the rents and profits thereof become and be subject and

profiu be- ^'^l® *^ *^® lessor of the said land or the person for the time being entitled

oomee liable to the said lossor's estate or interest in the said land to the same extent as

to lessor ^^^ lessee or tenant was subject to and liable for prior to such mortgagee

encumbrancee or other person entering into possession of the said land and

the rents and profits thereof. (House v. O'Farrell, 51. N. 59 ; Z. 113 ; S.

139; T. 62, 58; V. 66, 91.)

Dieohwrge of g3. Upon the production of any such bill of mortgage or bill of encum-

•adraom- brauco having thereon an endorsement signed by the mortgagee or encum-

bruoet braucoo and attested by a witness discharging the estate or interest thereby

pledged or subjected as security from the whole or part of the principal sum



Digitized by VjOOQIC



QUEENSLAND REAL PBOPEETT ACT— Ko. 1. 12fi

or aimuitj thereby secured or discharging anj part of the land comprised in
such bill of mortgage or bill of encumbrance from the whole of such
principal sum or annuity the Registrar- General shall make an entry in the
register book noting that the said mortgage or encumbrance is discharged
wholly or partially or that part of the laud is discharged as aforesaid as the
case may require and upon such entry being made in the register book the
estate or interest which by such bill of mortgage or bill of encumbrance had
been pledged or subjected as security for any principal sum or annuity or
the portion of land mentioned or referred to in such endorsement as afore-
said as intended to be discharged from such principal sum or annuity shall
cease to be subject to or liable for the same or as the case may be for the
part thereof noted in such entry as discharged and in case any annuity or
sum of money shall be secured by any such bill of encumbrance during the
life of any encumbrancee or other person or contingent upon the occurrence
of any eyent the Begistrar-G^eneral on the production of such bill of encum-
brance together with proof of the death of such annuitant or person or of
the occurrence of the eyent upon which such annuity or sum of money shall
cease to be payable and upon proof that all arrears of such annuity or sum
of money and of all interest thereon haye been paid satisfied or discharged
shall make an entry in the register book noting that such annuity or sum of
money is satisfied and discharged and shall cancel such bill of encumbrance
and upon such entry being made in the register book the land estate or
interest which had been pledged or subjected as security for the payment of
such annuity or sum of money shall cease to be subject to or liable for the
lame or any charges incident thereon and the Eegistrar- General shall in any
or either such case endorse on the grant certificate of title or other instru-
ment eyidencing the title of the mortgagor or encumbrancer to the land
estate or interest mortgaged or encumbranced a memorandum of the date on
which such entry was made by him in the register book wheneyer such grant
certificate of title or other instrument shall be present'Cd to him for that
purpose Provided always that the discharge of part only of the land com-
prised in any bill of mortgage or bill of encumbrance shall only have the
effect of discharging the portion of land described in such endorsement as
intended to be discharged and shall not haye the effect of discharging the
whole of the land so comprised from such principal sum or annuity as afore-
said. (N. 61 ; Z. 108 ; S. 143, 147 ; T. 62, 69, 61 ; V. 66, 100.)

64. In case any mortgagee of property under the provisions of this Act Mortgage
shall be absent from the colony or in case there shall be no person author- £**p2d'to'^
ised to give a receipt to the mortgi^or for the mortgage money at or after S^^jlJ^J:
the date appointed for the redemption of any mortgage it shall be lawful for mortgagee
the Treasurer of the colony to receive such mortgage money with all arrears aJ,^^'
of interest then due thereon in trust for the mortgagee or other person en- coionj and
titled thereto and the Eegistrar- General shall upon the receipt of the said SSchSged
Treasurer for the amount of the said mortgage money and interest make an
entry in the register book discharging such mortgage stating the day and
hour on which such entry is made and such entry shall be a valid discharge
for such mortgage and shall have the same force and efiect as is hereinbefore
given to a like entry when made upon production of a bill of mortgage with
the receipt of the mortgagee and tne Begistrar-G^eneral shall endorse on the
grant certificate of title or other instrument as aforesaid and also on the bill
of mortgage whenever those instruments shall be brought to him for that
purpose the several particulars hereinbefore directed to be endorsed upon
each of such instruments respectively and upon and after the date of such



Digitized by VjOOQIC



126 QtrEENSLANB BEAL PROPBBTT ACT— No. 1.

payment to the said Treasurer the interest npon such mortgage shall cease
to run or accrue. (N. 61, 63 ; Z. 108, 109 ; S. 102, 143, 146 ; T. 02-61 ; V.
66.100.)

Tnnfer of Q5^ A registered mortgage or registered lease or the interest of a regis-

^d^L tered encumbrance may be transferred to any person by memorandum of

*^^n«2e ^^^^^^'^ ^ aforesaid or by an instrument in the form fl of the schedule

^ ° hereto which instrument may be endorsed upon the bill of mortgage lease

or bill of encumbrance and upon such memorandum of transfer or other

instrument being registered the estate or interest of the transferor as set

forth in such instrument with all rights powers and privileges thereto

belonging or appertaining shall pass to the transferee and such transferee

shall thereupon become subject to and liable for all and every the same

requirements and liabilities to which he would have been subject and liable

if named in such instrument originally as mortgagee encumbrancee or lessee

of such land estate or interest. (N. 82 ; S. 152 ; T. 62-63.)

TrMirfer of QQ, By virtue of evenr such transfer as is hereinbefore mentioned the

£^^^^ ^'' right to sue upon any bill of mortgage bill of encumbrance or other instrument
f^'*^7ri'S*" *^^ *^ recover any debt sum of money annuity or damages thereunder not-
to^rae tSere- withstanding the same may be deemed or held to constitute a chose in action
^^^ and all interest in any sucn debt sum of money annuit^r or damages shall be
transferred so as to vest the same at law as in equity in the transferee
8»TmR thereof Provided always that nothing herein contained shall prevent a
powt^to court of equity from giving effect to any trusts effecting the said debt sum

E^ itjto of money annuity or damages in case the transferee shall hold the same as a
effect to fcj^atee for any other person. (Neil v. Lindsay, 94; Jones v. Jones, 184;
Sail V. Loder, 158. N. 48 ; Z. 83.)

Oenermi Q^J, In every instrument creating or transferring any estate interest or

b«lmpUedin charge for valuable consideration under the provisions of this Act there shall
inttnunente \^q implied the following: covenants by the person creating or transferring
such estate interest or charge that is to say that he will at the cost of the
person requiring the same do all such acts and execute all such instruments
as in accordance with the provisions of this Act may be necessary to give
effect to all covenants conditions and purposes expressly set forth or by this
Act decliured to be implied in any such instrument. (T. 62-36.)

ivansferee Qg. In every instrument transferring an estate or interest in land

Batject to under the provisions of this Act subject U> a bill of mortgage or bill of
mortgage or eucumbranco there shall be implied the following covenant by the transferee
bra^'to of such estate or interest that is to say that he will pay the interest or
tou^lror wiiiuity securod by such bill of mortgage or bill of encumbrance after the
rate and at the times therein mentioned and will indemnify and keep harm-
less the transferor from and against the principal sum secured by such bill
of mortgage or bill of encumbrance and from and against all liability in
respect of any of the covenants therein contained or by this Act declared to
be implied on the part of the transferor. (N. 46 ; S. 97 ; T. 62-46 ; V. 66-68.)

ooyeiumtsto QQ^ In every bill of mortgage there shall be implied the following
iiTeTwy bm covonauts against the mortgagor tmit is to say —

of mortg»go

(L) That he will pay the principal money and interest thereby secured
after the rate and at the times therein mentioned without any
deduction whatsoever



Digitized by VjOOQIC



QUEENSLAND EEAL PEOPEETY ACT— No. 1. 127

(2) That he will repair and keep in repair all buildings or other
improyements 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 other persons
to enter into and upon such land to view and inspect the state of
repair of such builings or improvements. Burne v. Stewart^ 28 ;
Bt$cknall v. Beid, 145. N. 62-49, 64 ; Z. 95 ; S. 130, 152 ; T. 62-62 ;
V. 66-90.)

70. In every lease there shall be implied the following covenants ^^^^^^^^
against the lessee that is to say — in eTory

* lease agaixiBt

(1) That he will pay the rent thereby reserved at the times therein **^ ^«"®®
mentioned and all rates and taxes which may be payable in respect

of the demised property during the continuance of the lease.

(2) That he will keep and yield up the demised property in good and nds 4i Vio,
tenantable repair. (Hunter v. Flat/er, 24 ; re O'Connell, 169. N. ^°- ^® "* *^
51 ; S. 124, 152 ; T. 62-49; V. 66-77.)

?!• In every case there shall also be implied the following powers in ?**^^^
tbe lessor that is to say — i^^ "

(1) That he may by himself or his agents at all reasonable times enter
upon the demised property and view the state of repair thereof and
may serve upon the lessee or leave at his last or usual place of
abode in this colony or upon the demised property a notice in
writing of any defect requiring him within a reasonable time to be
therein prescribed to repair the same.

(2) That in case the rent or any part thereof shall be in arrear for the
space of six calendar months or in case default shall be made in the
fulfilment of any covenant whether expressed or implied in such
lease on the part of the lessee and shall be continued for the space
of six calendar months or in case the repairs required by such
notice as aforesaid shall not have been completed within the time
therein specified it shall be lawful for such lessor to re-enter upon
and take possession of such demised premises. Bujknall v. lieid,
145. N. 51-52 ; Z. 92 ; S. 125, 2, 130 ; T. 62-50 ; V. 66-77.)

72. In any such case the Eegistrar- General upon proof to his satis- Begi«tnur-
faction of re-entry and recovery of possession by the lessor by any proceed- noto^pli-^
ing in law shall note the same by entry in the register book and the estate tiouiMs of
of the lessee in such land shall thereupon determine but without releasing i^uy ^
him from his liability in respect of the breach of any covenant in such lease ^^^
expressed or implied and tho Eegistrar-General shall cancel such lease if
delivered up to him for that purpose. {Bucknall v. Beid^ 145. N. 53.)

73, Such of the covenants hereinafter set forth as shall be declared in AbbrejUted
any lease or mortgage to be implied against the lessee or mortgagor shall if wcrSs^for
expressed in the form of words hereinafter appointed and prescribed for the JJJ^Jj^^to
case of each such covenant be implied against such lessee or mortgagor as be m effec
fully and effectually as if such covenants were set forth fully and in words ^di w^e-
at length in such lease or mortgage that is to say the words " that he will nmau were
insure " shall imply as follows that he will insure and so long as the term ^^ds at ^
expressed in the said mortgage or lease shall not have expired will keep ^^s^
insured in some public insurance office to be approved by such mortgagee or inmm



Digitized by VjOOQIC



128 QUEENSLAND EEAL PEOPEETT ACT— No. 1.

lessor against loss or damage by fire to the fall amount specified in sncli
lease or bill of mortgage or if no amount be specified then to their full
yalue all buildings tenements or premises erected on such land which shall
be of a nature or kind capable of being insured against loss or damage bj
fire and that he will at the request of the mortgagee or lessor hand over to
and deposit with him the policy of every such insurance and produce to him
the receipt or receipts for the annual or other premiums payable on account
thereof Provided always that all moneys to be received under or by virtue
of any such insurance shall in the event of loss or damage by fire be laid out
and expended in making good such loss or damage Provided also that if
default shall be made in the observance or performance of the covenant last
above-mentioned it shall be lawful for the mortgagee or lessor without
prejudice to and concurrently with the powers granted him by his bill of
mortgage or lease in manner in and by this Act provided to insure such
building and the costs and charges of such insurance shall until such
mortgage be redeemed or such lease shall have expired be a charge upon the
p^tout- said land the words "and paint outside every alternate year" shall imply
as follows (videlicet) and also will in every alternate year during the
currency of such lease paint all the outside woodwork and ironwork
belonging to the hereditaments and premises mentioned in such lease with
two coats of proper oil colours in a workmanlike manner the words " and
PMntand paint and paper inside every third year" shall imply as follows (videlicet)
SSS &ud will in every third year during the currency of such lease paint the
inside wood iron and other works now or usually painted with two coats of
proper oil colours in a workmanlike manner and also re-paper with paper of a
quality as at present such parts of the said premises as are now papered and
also wash stop whiten or colour such parts of the said premises as are now
Fence whitened or coloured respectively the words " and will f tnce " shall imply
as follows (videlicet) and also will during the continuance of the said lease
erect put up and maintain on the boundaries of the land therein mentioned
or upon such boundaries upon which no substantial fence now exists a good
OiiitiTkte and substantial fence the words " and cultivate *' shall imply as follows
(videlicet) and will at all times during the said lease cultivate use and
manage all such parts of the land therein mentioned as are or shall be
broken up or converted into tillage in a proper and husbandlike manner and
will not impoverish or waste the same the words " that the lessee will not
Not use MA uso the said premises as a shop " shall imply as follows (videlicet) and also
"^^ that the said lessee will not convert use or occupy the said hereditaments

and premises mentioned in such lease or any part thereof into or as a shop
warehouse or other place for carrying on any trade or business whatsoever
or permit or suffer the said hereditaments and premises or any part thereof
to be used for any such purpose or otherwise than as a private dwelling,
house without the consent in writing of the said lessor and the words " and
OffenriAe will uot Carry on offensive trades " shall imply as follows and also that no
*'*^* noxious noisome or offensive art trade business occupation or calling shall
at any time during the said term be used exercised carried on permitted or
suffered in or upon the said hereditaments and premises above-mentioned
and that no act matter or thing whatsoever shall at any time during the said
term be done in or upon the said hereditaments and premises or any part
thereof which shall or may be or grow to the annoyance nuisance grievance
damage or disturbance of the occupiers or owners of the adjoining lands
Aasigiior and hereditaments the words ** and will not without leave assign or sublet '*
"^^^^ shall imply as follows (videlicet) and also that the said lessee shaU not nor



Digitized by VjOOQIC



QUEENSLAND BBAL PE0PBr1?T ACT— No. 1. 129

will dnrio^ the term of such lease assign transfer demise sublet or set over
or otherwise bj any act or deed procure the lands or premises therein
mentioned or any of them or any part thereof to be assigned transferred
demised sub-let or set over unto any person whomsoever without the consent
in writing of the said lessor fir^t had and obtained the words " and will
not cut timber " shall imply as follows and also that the said lessee shall Cat timber
not nor will cut down fell injure or destroy any growing or living timber or
timber-like trees standing and being upon the said hereditaments and
premises above-mentioned without the consent in writing of the said lessor
the words " and will carry on the business of a publican and conduct the same Bonness of
in an orderly manner " snail imply as follows (videlicet) and also that the said 1^^^°^^ ™
lessee will at all times during^ the currency of such lease use exercise and mumer
etrry on in and upon the premises therein mentioned the trade or business
of a licensed victualler or publican and retailer of spirits wines ale beer and
porter and keep open and use the messuage tenement or inn and building
itanding and being upon the said land as and for an inn or public-house for
tiie reception accommodation entertainment of travellers guests and other
persons resorting thereto or frequenting the same and manage and conduct
sQch trade or business in a quiet and orderly manner and will not do commit
or permit or suffer to be done or committed any act matter or thing
wbatsoever whereby or by means whereof any licence shall or may be
forfeited or become void or liable to be taken away suppressed or suspended
in any manner howsoever the words ** and will apply for renewal of licence" ^P^Jjf^'^
shall imply as follows (videlicet) and also shall and will from time to time u^oa
dnnng the continuance of the said term at the proper times for that purpose
* App/y for and endeavour to obtain at his own expense all such licences as
are or ma^ be necessary for carrying on the said trade or business of a
licensed victualler or publican in and upon the said hereditaments and
premises and for keeping the said messuage tenement or inn open as and
for an inn or public-house as aforesaid the words " and will facilitate the ^»°^'*^
tranaf er of licence " shall imply as follows (videlicet) and also shall and will of Uoenco*'
at the expiration or other sooner determination of the said lease sign and
give such notice or notices and allow such notice or notices of a renewal or
transfer of any licence as may be required by law to be affixed to the said
messuage tenement or inn to be thereto affixed and remain so affixed
during such time or times as shall be necessary or expedient in that behalf
and generally to do and perform all such further acts matters and things as
ahaU be necessary to enable the said lessor or any other person authorised
by him to obtain the renewal of any licence or any new licence or the
Inmsfer of any licence then existing and in force. (N. 65, 68 ; T. 62-65 ;
V. 66-92.)

74. "Where any memorandum of transfer or other instrument in accor- suciiooTe.
dance with the provisions of this Act is executed by more parties than one JJJ^forSf m*
such implied covenants shall be construed to be several and not to bind the deciarationB
parties jointly and in any declaration in an action for a supposed breach of bretM^r"' ^'
any such covenants the covenant alleged to be broken may be set forth and
it shall be lawful to allege that the party against whom such action is brought
did 80 covenant precisely in the same manner as if such covenant had been
expressed in words in such memorandum of sale or other instrument
any law or practice to the contrary notwithstanding. (Z. 159; 8. 268;
V. 66, 146.)

17



Digitized by VjOOQIC



130 QUEENSLAND EEAL PEOPEBTT ACT-No. 1.



OoTenanto 75. EveiT Covenant which shall be implied by virtue of this Act shall



S. 124, 130, 152, 265 ;



bT^^edto ^^^® ^^^ Banie force and effect and be enforced in'the same manner as if it
have ^ had been set out at length in the instrument wherein the same shall be
Stfthe^e implied. (Bucknall v. Eeid, 145. N. 61, 65; Z. 157
^1^ T, 62-66, 49, 62-62 ; V. 85-78, 66-76.)

dMJued to 76* Every covenant and power to be implied in any instrument by virtue

^ "°&"*^ ^^ *^^® ^^* ^°^y ^® negatived or modified by express declaration contained
^ntiTed or in the instrument or endorsed thereon. (N. 89 ; Q. 61-76 ; S. 262.)

modified V -v



be TestedLi 77. Whenever any registered proprietor of land under the provisions

troBteee 07 of this Act or of any estate or interest in such land is desirous of vesting

SnSSS? *^® ^*°^® ^° trustees it shall be lawful for him by an instrument in form I

tion of the schedule hereto to nominate any persons to be trustees of the said

land estate or interest and every such instrument shall be attested by a

witness and shall contain an accurate statement of the estate or interest



Online LibraryAustraliaThe land transfer laws of Australasia: being the full text with side notes ... → online text (page 27 of 83)