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

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intended to be vested in such trustees and shall refer to the description

p;iven 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.



TniBtomay
be deoUred
either by
schedule to
initmment
of nominft-
tion or by
sepuftte
deed or
iostnunent



InBfcmment

decUring

troBtatobe

deposited

bat not

registered

No entry of
trusts to be
msde in reg<
ister book



Tmsteesto
receive oer-
tiflcsteof
titieand
deal with
same M if
beneficial
owners



Beoeiptof
trustees a
discharge to
purchasers
or mort*
gagees



78. The trusts which are intended to be declared of any land estate or
interest vested in trustees as hereinbefore mentioned may be declared by a
separate instrument or deed Whenever the said trusts are declared by a
separate instrument or deed the same may include as well land under the
provisions of this Act as land which is not under the provisions of this Act
Provided that in every such instrument or deed the description of the several
parcels of land therein contained shall sufficiently distinguish the land which
IS under the provisions of this Act from the land which is not under the
provisions of this Act and a duplicate or attested copy of such instrument
shall be deposited with the Begistrar-G^eneral for the purpose of safe custody
and reference but such duplicate or attested copy shall not be registered.
(N. 66; 1.62-66.)

79, Whenever any land or any estate or interest in land under the
provisions of this Act shall be settled or shall become vested in trustees
upon any trust whether expressed implied or constructive the Begistrar*
General shall not make any entry of the said trusts in the register book and
the trustees after the entry in the register book of the nomination of trustees
in manner hereinbefore provided shall notwithstanding any trust affecting
the said land estate or interest be entitled to sell transfer mortgage or other-
wise deal with the same in the like manner as if the said trustees had been
the beneficial owners thereof and if the fee-simple of any such land shall be
so settled or vested in trustees thej shall be entitled to receive a certificate
of title for the same at their desire and the receipt of such trustees or
(except in the case where " no survivorship " is stipulated as hereinafter
provided) the receipt of the surviving trustees or trustee of the legal personal
representative of the last surviving trustee shall be a sufficient discharge to
any purchaser or mortgagee of such land estate or interest whether such
purchaser or mortgagee shall or shall not have had notice of such trusts and
such purchaser or mortgagee shall not be bound to see to the appropriation of
any purchase money or mortgage money by him paid. (Be Beattie, 53 ;
D'AibrdyUU v. D'Albrdyhill, 82. See note to Sec. 57, ante.)



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QUEENSLAND EEAL PROPEETT ACT— No. I. 131

80. Whenever the registered proprietor of any land under the provi- Tb« word*
rions of this Act or of any estate or interest in such land shall insert the ^JJiS^'iii
words " no survivorship " in any instrument intended by such registered «»y instru-
proprietop to operate as a nomination of trustees it shall not be lawful for ^^tmenf"
any less number of trustees than the number named in such instrument to jJ*^^JJnf*2
sell transfer mortgage or otherwise deal with the said land estate or interest i«8«^"Saber
without obtaining the sanction of the Supreme Court or of a judge thereof ^^Jj^
by order which may be granted in a summary way on motion or petition by nwned in
or on behalf of any person beneficially interested in such land estate orj^tjjjjjj'"
mterest and it shall be lawful for the said court or judge by any order so with the land
obtained to give such direction for the investment or application of the m saoh omo
purchase money or mortgage money as the said court or juage may think fit cJJJ^*
or by the like order to direct the appointment of any new trustee or trustees give direo-
in the place of any former trustee or trustees and the Eegistrar-Q-eneral p^fj^Jf Jo
shall enter a memorial of every such order in the register book and upon ^7 vacancy
the receipt of any memorandum of transfer or other instrument executed Sfg moneys'
in accordance with such order he shall register such instrument in manner
hereinbefore directed Provided that nothing herein contained shall prevent Continoing
any less number of trustees than the number which may be named in any JSSJ|J^^
instrument operating as a nomination of trustees from filling up any vacancy trustees in
which may arise by nominating any other person to be co-trustee with the rmnoj
acting OP continuing trustees and such new trustee may be nominated by
any instrument in form I of the schedule hereto and upon the registration
of Bucb instrument or upon entpy in the pegistep book of the memorial of
any ordep appointing new tpustees as afopesaid any such new tpustee shall
hare the like estate interest power and authority as if he had beeu originally m55?!3f'new
nominated a trustee by the registeped proprietor of such land estate or {^"^^ ^
interest. (National Bank v. National Mortgage and Agency Co,^ 12 ; Outhbert- regSster* *°
son V. Sioann, 144 ; Miller v. Stewart^ 172 ; St. George v. Burnett, 57, 176 ; took
ex parte Pennington, 217. N. 66 ; Z. 122, 128, 125 ; 8. 163, 16*, 71-5, 161,
162 ; T. 62, 66, 68 ; V.' 66^16, 38.)

81« Whenever the words " no survivopship " shall be written upon any The words
instrument intended to opepate as a nomination of tPustees the Eegistrar- yonhlp^'to
General shall during the existence of such trust cause the words " no be written on
survivorship *' to be written on every certificate of title of land issued to tTuei^iS!
soch trustees and also on the duplicate of every such certificate bound up J^ '^JJ^ ^^
in the register book. ^

82* It shall be lawful for the registeped ppoprietor of any land or of Proprietor
any estate or interest in land whether such land estate op intepest shall be ^^jSLtiy
of the nature of real op personal property by any of the forms of instruments j^^^JJJ^j^
of transfer provided by this Act and containing such alterations (if any) as Jrithont*"
may be deemed necessary to transfer such land estate or interest or any part JjJ^OTexS^
thereof to his wife or if such registered proprietor be a married woman it outing any
shall be lawful for her to make such transfer to her husband or it shall be •"'«^™*°*
lawful for such registered proprietor to make such transfer to himself jointly
with any other person or persons and it shall not be necessary for the
purpose of such transfer in any such case to limit any use or execute any
re-assignment but upon the registration of such transfer the said land estate
or interest shall vest in such registered proprietor jointly with any other
person or pepsons or otherwise according to the intent and meaning appear-
mg in such instrument and thereby exppessed. (N. 85, 109 ; T. 62-86 ; S. 111.)



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182 QUEENSLAND BBA.L PEOPEBTT ACT— No. 1.



Dmotion
decree or
order of Sn-
preme Court
to be regis-
tered

Vide 41 Vic
No. 18 8.46



Action maj
be brought
br person
ouuminj;
benefloutry
interest in
name of
trustee



Trustee to b«
indemnified



Transmii-

sionbj

insohencj

Certified

copy of

sopointment

ofofllcial

assignee and

elected

Msisneeto

be deposited

withBegis-

trar-General



Upon entry
ol such ap-
pointment
official
assignee and
elected
assignee
empowered
to deal with
lands

Vide 41 Vic.
No. 18 8. 34



83* Whenever any person interested in land under the provisions of
this Act shall appear to the Supreme Court to be a trustee within the intent
and meaning oi " The iTustee Acts " one thousand eight hundred and
fifby-two, and one thousand eight hundred and fifty-three and any order
shall be thereupon made bv the Supreme Court or judge thereof and
whenever any land under the provisions of this Act or any estate or
interest therein shall be sold under anv direction decree or order of
the Supreme Court the Begistrar-G-eneral on being served with an office
copy of such direction decree or order shall enter in the register book
and also on the instrument evidencing title to the said land estate or
interest in case the same shall be produced to him the date of such direction
decree or order and the day and hour of the production of the same
respectively and unless and until such entry shall have been made no such
order shall have any effect or operation in transferring or otherwise vesting
the said land nor shall any sale or transfer under any such direction decree
or order be valid or effectual but after such entry shall have been made the
person named in any order of the court as the person in whom the land
estate or interest therein referred to is to vest shall be deemed to be the
registered proprietor thereof or as the case may be the person thereto
authorised by any such direction decree or order shall do all such acts and
execute all such instruments as under the provisions of this Act may be
necessary to transfer the said land estate or interest.

84. Whenever any person entitled to or interested in land as a trustee
would be ertitled under the last preceding clause to bring or defend any
action of ejectment in his own name for recovering the possession of /and
under the provisions of this Act every such person shall be bound to allow
his name to be used as a plaintiff or defendant in such action of ejectment
by any beneficiary or person claiming an estate or interest in the said
land Provided nevertheless that every such person shall be entitled to be
indemnified in like manner as a trustee would before the passing of this Act
have been entitled to be indemnified in a similar case of his name being used
in any such action or proceeding by his eestui que trust. (Outhhertson v.
Swanriy 144 ; ea; parte Pennington, 217. N. 110 ; T. 62, 118 ; Z. 128.)

85. [Eepealed by Sec. 4, Eeal Property Act 1877.]

86. Whenever such transmission shall take place by virtue of the
insolvencv of a registered proprietor an office copy or other duly certified
copy of the appointment of the official assignee of the insolvent estate or of
the appointment of such official assignee and of an elected assignee as the
case may be or such other sufficient evidence of such appointment or
appointments as he may require shall be left with the Eegistrar-GFeneral
and he shall thereupon enter a memorandum of the particulars of such
appointment in the register book and upon such entrv being made it shall
be lawful for such official assignee or ofBcial or elected assignees to transfer
to any purchaser or other person the land estate or interest so transmitted
as aforesaid and every memorandum of transfer or other instrument for that
purpose executed by such official assignee or such official and elected
assignees in accordance with the provisions of this Act shall have the same
validity and effect as a like instrument would have had if executed by the
registered proprietor before his insolvency Provided always that nothing
herein contained shall alter or vary the position of the official assignee or
official and elected assignees of an insolvent trustee of any land as between
such official assignee or official and elected assignee and any person who may



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QUEENSLAND BEIL PROPEETT AOT—No. 1. 183

be beneficially interested in any land of which such insolvent trustee is the insoiTmoj
registered proprietor but the rights of such persons (if any) as between nJt'toi^
them and such official assignee or official and elected assignees in respect of beneflounes
such land shall remain entirely unaffected notwithstanding the insolvency
of the registered proprietor of the said land and the said insolvent shall
transfer the said land to the persons beneficially interested therein and
shall do and execute all acts which may be necessary for nominating a new
trustee or new trustees of the said land and carrying into effect any trusts
affecting the said land at the date of his insolvency. (Kickham v. The
Queen, 47 ; Giles v. Lesser, 150. N. 76 ; Z. 119 ; S. 71-5-171 ; T. 62-76 ;
V. 85, 64.)

87* TTpon the marriage of a female registered proprietor the Registrar- Muriage of
General on production of the register of such marriage or other sufficient piSSi to*be
evidence of the celebration thereof accompanied by a declaration to be made ^»fl«d to
of the identity of the woman named in the register book with the person Qe?en?^
named in such register of marriage shall enter on the register book a ^<«i»*tion
memorandum oi the day and hour of the production to him of the register
or other evidence of such marriage and of the particulars certified to him by
such declaration and shall when required by such female proprietor or other
person claiming through her register any instrument purportmg to transfer PorticaiaM
or otherwise affect her land estate or interest in accordance with the pro-^*^«»^«^
visions of this Act Provided that every such instrument shall in all cases boo?"**'
when the same is by law required to be acknowledged by such married iMtnunenta
woman for the purpose of transferring the said land estate or interest be to be regis-
duly acknowledged by such married woman in the manner hereinafter pro- JSS^ttJ""'
vided previously to the same being registered. (Ux parte Folk, 170; r^de^gsm
Pykett, 171. N. 77 ; Z. 165 ; S. 189, 213, 62-78, 78 ; T. 67, 62, 78, 189 ; iSd wJ^"
V. 66, 108.)

88. Whenever any mortgage encumbrance or lease shall be transmitted Tnmsmis.
in consequence of the death of the registered proprietor thereof probate or mSi^^^
an office copy of the will of the deceased proprietor or letters of administra- lettewofad-
tion in case he shall have died intestate shall be produced and left with the S'S^pJol^**
Begistrar-Q-eneral for the purpose of being recorded in the register book ^°®^
and the Registrar- General shall enter in the register book the date of the PftrtioaUn
will and of the probate or as the case may be the date of the grant of the {2r«d"**'"
letters of administration and the day and hour of the production to him of
such will and probate or letters of administration and the names of the
executors or administrators and whenever the same can be ascertained the
date of the death of such proprietor together with such other particulars as
he shall deem necessary and upon such entry being made such executors or
administrators shall be deemed to be registered proprietors of such mortgage
encumbrance or lease. (Saunders v. Cabot, 15 ; Pannan v. Fannan, 16. N.
78 ; T. 74-10, 62-79, 19 ; V. 66 105.)

89. It shall be lawful for the heir-at-law or devisee or other person HMr-at-iaw
interested in the land of a deceased proprietor or for the Curator of Sli^JJI^to
Intestate Estates in any case in which by virtue of any law in force in the J«<4«ofthe
said colony he may be authorised to take the charge or management of the ooSrt^
real or personal estate of a deceased person at any time by motion or J'^^*^®
petition in a summary way to apply to the Supreme Court or a judge thereof Gener^
to make an order for the Eegistrar-Q-eneral to register such heir-at-law ^*of ^JiJ'
curator devisee or other person as the proprietor of such land or to register to him
the Curator of Intestate Estates as the proprietor of any mortgage



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184 QUEENSLAND BEAL PBOPERTT ACT— No. 1.

encumbrance or lease in place of such deceased proprietor and the Supreme

No!'«48.^* Court or a judge thereof shall make such order therein as may seem proper

and may thereby direct any caveat to be entered for the protection

of the interests of such other persons if any as may be interested in

such land estate or interest and may direct advertisements to be made

and notices served in such manner as to such court may seem fit and may

also direct the costs of such application to be borne and paid out of the

estate of the said deceased proprietor or by such other person or in such

other manner as the court may think just and such order shall be left with

the Begistrar-General who shall enter the particulars thereof in the register

book and shall forthwith give effect to the said order by complying with the

directions tlierein contained and upon such entry being made the person

named in the said order shall be deemed to be the registered proprietor of

such land estate or interest Provided always that the person registered

consequent upon such order or any executor or administrator when

registered in respect of any mortgag:e encumbrance or lease shall hold such

land estate or interest in trust for the persons and purposes to which it is

applicable by law but for the purposes of any dealings with such land estate

or interest under the provisions oi this Act he shall be deemed to be absolute

proprietor thereof. (Pannan v. Pannan, 19. N. 29, 77.)

Sapremo' 80. ^OT the purposo of registration of an estate or interest in land

Court under under the provisions of this Act or on any application for the issuing by the

Biz^ Queen Bogistrar- cTeneral of a certificate of title under the provisions of this Act it

piioabteto ^^ ^® lawful for the Supreme Court or a judge thereof in its equitable

registntion jurisdiction upou motion or petition to exercise all such powers as are

under this conferred or as may be applicable for any of the purposes hereinbefore

mentioned under a statute passed in the sixth year of the reign of Her

Majesty Queen Anne and intituled " -4n Act far the More EffectiMl BUcovery

of the Death of Persont Pretended to he alive to the Prejudice of those u)ho

claim Estates after their Deaths^

?r**irit*S^* ^^* -^^ judgment already entered up or to be hereinafter entered up

ezeouUon nor any writ of execution issued in pursuance of any such judgment

• memSS? notwithstanding any purchaser mortgagee or creditor mav have had actual

^aUhftve or Constructive notice thereof shall bind or affect or be effectual against any

inSeregis? ^^^^ Under the provisions of this Act or any estate or interest therein as to

*jj^ook^d purchasers mortgagees or creditors unless and until a memorial of the said

ioatra^^t ^ iud£;ment or writ as the case may be shall have been entered in the register

eTidenoing book and also upou the instrument evidencing title to the estate or interest

r<i« 41 Vie. intended to be charged or taken in execution in case such instrument shall

No. 18 a. 36 jj^ producod to the Begistrar-General and upon proof to his satisfaction

that any such judgment or writ of execution has been discharged or

satisfied the Begistrar-General may enter in the register book and on the

certificate of title or other instrument evidencing title to the estate or

interest charged or affected a memorandum to that effect and upon such

entry being made the judgment or writ of execution to which such entry

relates shall be deemed to be discharged or satit^fied Provided always that

no writ of execution although duly entered in the register book as aforesaid

shall affect any land under the provisions of this Act or any estate or

interest therein as to purchasers mortgagees or creditors unless such writ

be executed and put in force within three calendar months from the date of

the entering such writ. {Be R, G. Palmer^ 7 1 ; Jones v. Park, 87 ; re Wm.

Wadhamy 114 ; Palmer v. Andrews, 146 and 147 ; Patchell v. Maunsell, 148 ;

Umpherstone v. Wadham^ 149 ; Giles v. Lesser^ 150.)



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QUEENSLAND BEAL PEOPEETt ACT— No. 1. 135

92. Whenever it is intended that partition shall be made by co- PtftitioDof
parceners joint tenants or tenants in common of any land under the.^^^]^^^*
proTisions of this Act or of any estate or interest therein such co-parceners tenancy in

}oint tenants or tenants in common may execute a memorandum of transfer ^'^'"^^
ease or other such instrument of transfer as in accordance with the
provisions of this Act the nature of the estate or interest may require. (Ex
parte Locke, 43. N. 86 ; Z. 62 ; S. 74 ; T. 86-16 ; V. 66-44.)

93. Where any attorney or accent acting under a power of attorney Agenthoid.
from a person who would himseB be entitled to malie application to Jj^JJJJ^o**
bring land under the provisions of this Act and to receive a certificate of seUordis.
title for the same shall by such power be authorised to sell or absolutely to F^niy****
dispose of such land it shall be lawful for such attorney or agent to W'^^ ,
make a declaration that bis principal is so entitled as aforesaid and to appl^ ondlr Act
on behalf of his principal to bring such land under the provisions of this JJ^^J^^^j^f
Act and to receive a certificate of title for the same in the name of his tiUe in the
principal and every instrument dealing with such land in accordance with ^cipli"'
the provisions of this Act and signed by such attorney or a^ent on behalf of

his principal shall be valid and effectual for the purposes intended by such
instrument and such land shall be considered to have been properly brought
under this Act notwithstanding the absence of any express authority from
the principal to sign such instruments or make such declaration or
application Provided that nothing herein contained shall interfere with any
express direction prohibiting an attorney or agent from bringing any land
under the operation of this Act. (I^ational Bank v. National Mortgage and
Agency Company, 12 ; ex parte Bowan, 14 ; re Woods, 95. N, 104 ; 8. 273 ;
T. 12-107.)

94. Upon the application of any registered proprietor of land held Upon mt.
under separate grants or certificates of title or of land held under one grant ^^^^^
or certificate and upon his delivering up such grant or grants certificate or «»nt8 or
certificates of title it shall be lawful for the Eegistrar-General to issue to him Sf^e tS
a single certificate of title for the whole of such land or several certificates ^'^'^^f^lL
each containing a portion of such land as the case may require and as far STgie oer. *
as the same may be done consistently with any regulations at the time being 2iS?£»d
in force respecting the parcels of land that may be included in one certificate inoinded
of title regard bein? had to the descriptions of such parcels of land and the *^'*"
plans thereof by this Act required to be delineated on such certificate of

title and upon issuing any such certificate of title the Eegistrar-G-eneral
shall cancel the grant or previous certificate of title so deuvered up and
shall endorse thereupon a memorandum setting forth the occasion oi such
cancellation and referring to the certificate of title so issued in which the
land described in such cancelled grant or certificate of title is included.
(N. 45, 97 ; Z. 135; S. 78 ; T. 62-99; V. 43, 55, 66.)

96* It shall be lawful for the Eegistrar-G-eneral in case he shall see Begistrar-
reasonable cause for so doing to dispense with the production of any grant S^Si"**^
certificate of title lease or other instrument for the purpose of making the wi£ pro-
endorsement thereon which by this Act is required to be made upon the dSpuSJt^of
transfer or other dealing with land under the provisions of this Act and the ^"^tJ?**^
Begistrar-G-eneral may in such case if he shall think proper require proof other Inatm.
to be made by affidavit or otherwise of the identity of the person trans- SJJ^^'"
ferring or otherwise dealing with the said land with the person who is
registered as proprietor thereof and upon the registration of such transfer



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136 QUEENSLAND HEAL PEOPBETT ACT— No. 1.



Begistered
proprietor
Dringin^soit
for specific
performance
to be entitled
to decree



Vendor to
bare no
equitable
Uenbj
reason of
balance of
purchase
monej
unpaid

Caveat may
be lodged



Notice of^
caveat to
parties
Vidt 41 Vic.
No. 18 s. 87



Person lodg.
ing caveat
may be sum-
moned to
show cause
Vide 41 Vic.
No. 18 s. 88



Caveat* to
contain the
names and
description
of parties
and a suffi-
cient de-
scription to



or other dealing the Begistrar-G^neral shall notify in the memorial that no
endorsement of such transfer or other dealing has been made on the grant
certificate of title lease or other instrument and such transfer or other
dealing shall thereupon be as valid and effectual as if the endorsement had
been made upon the grant certificate of title lease or other instrument



Online LibraryAustraliaThe land transfer laws of Australasia: being the full text with side notes ... → online text (page 28 of 83)