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

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Proyided always that the Begistrar-G-eneral before making such endorse-
ment as aforesaid shall give at least fourteen days notice of his intention so
to do in the Oo I ernment Gazette and in at least one newspaper published in
the colony. {See note to See, 46, ante.)

96. In any suit for specific p^ormance brought by the registered
proprietor of any land against a person who may have contracted to
purchase such land the certificate of title of such registered proprietor shall
be held in every court of law or equity to be conclusive evidence that such
registered proprietor has a good and valid title to the land therein mentioned
or described and shall entitle such registered proprietor to a decree for the
specific performance of such contract. (Be Thompson v. Ohipps, 27 ; Qeorge
V. Australian Mutual Pro. Society, 66 ; Van Damme v. Blosam, 106 j Ashtey
V. Cook, 137 ; JSttershank v. The Queen, 158 ; Butler v. Saddle Hill Mininy
Company, 168 ; Coleman v. Wade, 203. N. 112 ; T. 62-115 ; V. 66-48.)

97- No vendor of any land under the provisions of this Act shall have
any equitable Uen thereon by reason of the non-payment of the purchase
money or any part of the purchase money for the same.

98* Any person claiming an estate or interest in any land may by a
caveat in the form K of the schedule hereto or as near thereto as circum-
stances will permit forbid the registration of any instrument affecting such
land estate or interest either absolutely or until after notice of intention to
register such instrument shall have been served as hereinafter described.
{Be Thompson and Chipps, 26 ; re J. B. Slack, 86 ; re Nelson Bros, 36 ; re
2>. Le Compte, 89 ; Biygs v. Waterhouse, 68 ; re Wm, Biggs, 69 ; re M.
Lyons, 69a j ex parte Power 69b ; ex parte Peck, 69c ; re Dayis, 59i) ; re
Field 69e ; ex parte Peck, 69f ; re Clark and Rarvey, 69o ; re Hayton, 67 ;
D'albrdyhill v. D'alhrdyhill, 82 ; re Wm. Wadham, 114 ; Kissling v. Mitchelson,
128 ; Wildash v. Hutcheson, 182 ; Butler v. Saddle Rill Mining Company,
168 ; Friehe v. Cullen, 178 ; ex parte Brown 186 ; re A. Bosquet, 202 ; re
Davis V. Inman, 208 ; re Pennington, 212.) N. 81 ; S. 191-11.)

99- Upon receipt of any caveat the Eegistrar-General shall notify the
same to the person against whose right to deal with land under the pro-
visions of this Act or against whose application to bring land under the pro-
visions of this Act such caveat may be lodged and such person may if he think
fit summon the person signing such caveat to attend before the Supreme
Court of the colony or any judge thereof to show cause why such caveat
should not be withdrawn and it shall be lawful for the said court or any
such judge upon proof that such last-mentioned person has been summoned
to make such order in the premises either ea parte or otherwise as to the
said court or judge shall seem fit. (N. 82 ; Z. 143 ; T. 62-83 ; V. 66, 117.)

100. Every caveat left under the provisions of this Act with the
Hegistrar- General shall state the name and address of the person by whom
or on whose behalf such caveat shall be lodged and shall contain a sufficient
description to identify the land which is intended to be affected and the
estate or interest (if any) claimed therein and every such caveat shall be



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QUEENSLAND EEAL PROPEETY . ACT— No. 1. 137

rigned b^ the person by whom or on whose behalf the same is lodged or by identify the
hia solicitor known agent or attorney and all notices relating to such caveat cS^^torto
or any proceedings in respect thereof shall be served either at the place of i^t^e an
address mentioned in such caveat or at the office of the solicitor known jS^otfoe
agent or attorney who shall have signed such caveat and such service shall "^^J^*
be deemed sufficient service of the notice as against all persons who may ju* 41 mo,
claim under the said caveat. ^^' ^^ •• ^

101. So long as any caveat shall remain in force prohibiting the J^o entry to
transfer or other dealing with land the Begistrar-G-eneral shall not enter in registe/ "*
the register book any memorandum of transfer or other instrument purport- -{f ^J^J^ITS
ing to transfer or otherwise deal with or affect the land estate or interest in respect to"*
respect to which such caveat may be lodged. (See note to Sec. 3, ante.) jJSt^uM^

force

102. Any caveat which may be lodged under the provisions herein- Kegistrar-
before contained may be cancelled by the Eegistrar-General upon its being Oenerai may
proved to his satisfaction and that of the Master of Titles that the estate Spon^proo?*
interest or claim of the person by whom or on whose behalf the same is -JfJ g^^f
lodged has ceased been abandoned or withdrawn or that the rights of the partiea hare
persons on whose behalf such caveat may have been lodged are satisfied or l^^or^Sfiit
arranged or in case the Registrar- Q-eneral and the Master of Titles shall be the interoet
satisfied that the nature of the estate interest pr claim of the person by ci[v(»tori8
whom or on whose behalf the caveat is lodged is not such as to entitle him inadequate
to prohibit the sale or mortgage or other dealing with the land estate or th7caT«»f
interest referred to in such caveat Provided always that at least seven days ^^'^^ J^^
before cancelling any caveat in such last-mentioned case the Eegistrar- and 40
General shall cause notice to be served in the manner hereinbefore
provided upon the person by whom the caveat is lodged. (Sx parte
Pennington, 64 ^ re Chas, Williamson, 65 ; re Turner, 66 ; re Hayton v.

Bibhi, 67 ; .Be Davis v. Jones, 68.)



103. Any person lodging a caveat with the Registrar- General without Comnei
reasonable cause shall be liable to pay such damages as may be recovered in ^^^^^'
an action at law by any person aggrieved thereby. {Bonnvn v. Andrews, without
85. N. 84 ; Z. 182 ; T. 62-86 ; V. 66, 120, 144.) SSio

104. The proprietor of any land under the provisions of this Act or Power of
any person registered as having estate or interest therein may by a power of r^^vic
attorney in any form heretofore in use for the like purpose or in form L of No. is s. 13*
the schedule hereto authorise and appoint any person to act for him or on

his behalf in respect to the leasing of such land or the transfer or mortgage
of bis estate or interest therein or otherwise lawfully to deal with such land
estate or interest in accordance with tlie provisions of this Act and upon any
such power being brought to the Eegistrar- General he shall enter a
memorial of the same in the register book and from and after the date of
such entry in the register book all acts lawfully done or performed by the
person so appointed under authority of and within the limits prescribed in
such power shall have the same force and effect and be equally binding on
such proprietor as if the said acts had been done or performed by him and
every such power bearing endorsement that the memorial of the same has
been so entered signed by the Registrar- General shall be received in
evidence as sufficient proof that the person to whom such power has been
granted is duly authorised to make all contracts to sign all instruments and
to perform all other lawful acts in accordance with the powers therein

II



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138 QUEENSLAND REAL PEOPEETT ACT— No. 1.

limited and appointed Provided always that an original or an attested copy
of every such power of attorney shall be deposited with the Eegistrar-
General. {Be Woods, 95. N. 69, 74 ; Z. 150 ; S. 155, 156 ; T. 62-70 ;
V. 66-118, 114.)

Eegistratton 105. The Eegistrar- General u^on the application of any registered

registering' proprietor of land under the provisions of this Act shall grant to such

mthSrt the proP"©^"^ * registration abstract in the form M of the schedule hereto

limitaofthe enabling him to transfer mortgage or otherwise deal with his estate or

colony interest in such land at any place without the limits of the colony and shall

at the same time enter in the register book a memorandum recording the

issue of such registration abstract and shall endorse on the grant certificate

of title or other instrument evidencing or constituting the title of such

proprietor a like memorandum recording the issue of such registration

abstract and from and after the issuing of any such registration abstract no

transfer mortgage lease or other transaction transferring encumberiug or in

any way affecting the estate or interest in respect of which such registration

abstract is issued shall be entered in the register book until such abstract

shall have been surrendered to the Registrar-General to be cancelled or the

loss or destruction of such abstract proven to his satisfaction. (N. 70, 129 ;

Z. 129; T. 62-71.)

Mode of 106. Whenever any transfer mortgage lease or other dealing with land

SJSTe^"* is intended to be effected under any such registration abstract a memorandum
registration of transfer bill of mortgage lease or other instrument as the case may require
abstract ^\^fiX\ be prepared in duplicate in form hereinbefore prescribed and shall be
produced to some one of the persons hereinaEter appointed as persons before
whom the execution of instruments without the limits of the colony may be
proven and npon memorial of such instrument being entered upon the
registration abstract and authenticated by the signature of such authorised
person in manner hereinbefore directed for the entry of memorials in the
register book such transfer mortgage lease or other dealing shall be as valid
and binding to all intents and purposes as if the same had been made within
the limits of the colony and recorded in the register book by the Eegistrar-
General and subject to the rules hereinafter for each such case prescribed
every person whose name shall have been recorded upon such registration
abstract as transferee mortgagee lessee or encumbrancee shall be held and
taken to be registered as such and shall have the same rights and powers
and be subject to the same liabilities as he \vould have had and been subject
to if his name had been registered in the register book instead of on such
abstract. (N. 73 j Z. 131 ; T. 62-73 ; V. 66-122. See also note to Sees, 3 and
101, ante.)

General 107. The following rules shall be observed as to powers of attorney

mies and registration abstracts — (1) The power shall be exercised in conformity

powers of with the directions contained therein {JRoss v. Victorian Permanent Building

re*^8?5ti*n^ iSfo<?te^y, 180.) (2) No transfer mortgage lease or encumbrance bona fide

abatnwts*^" made thereunder shall be impeached by reason of the person by whom the

power was given dying before the making of such transfer mortgage lease

or encumbrance (3) No transfer mortgage lease or encumbrance bona Ude

made to a purchaser mortgagee lessee or encumbrancee without notice shall

be impeached by reason of the insolvency of the person by whom the power

was given (4) If a transfer be effected there shall be delivered up to the

Begistrar-G-eneral the memorandum of transfer by which the land or any



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QUEENSLAND REAL PEOPERTT ACT— No. 1. 139

estate or interest therein is contracted to be transferred together with the
registration abstract and the grant certificate of title lease or other instru-
ment of title and he shall thereupon enter in the register book a memorandum
of the particulars of such transfer and of the cancelling of such abstract
and shall endorse on such memorandum of transfer and also on the grant
certificate of title lease or other instrument of title a memorandum of the
day and hour on which such entry was made and if a full estate in fee-simple
in such land or in any part thereof shall have been transferred he shall cancel
the grant or certificate of title so delivered up and shall issue a certificate
of title of such land or of the portion thereoi transferred and if part only
be transferred he shall also issue to the proprietor a certificate of title of
the remainder and shall before issuing them endorse on each of such certifi-
cates of title a memorandum of the particulars of all unsatisfied mortgages
or encumbrances appearing in the register book or on the registration
abstract as affecting the land included in each such certificate of title (5)
Every mortgage or encumbrance which is so endorsed on the registration
abstract shall have priority over all bills of mortgage of the same estate
executed subsequently to the date of the entry in the register book of the
issuing of such abstract and if there be more mortgages than one so endorsed
the respective mortgagees claiming thereunder shall notwithstanding any
express implied or constructive notice be entitled one before the other
according to the date at which a record of each instrument is endorsed on
such abstract and not according to the date of the bill of mortgage (6)
The discharge and also the transfer of any mortgage so endorsed on such
abstract may be endorsed on such abstract by any person hereinbefore
authorised to record a mortgage thereon upon the production of such
evidence and the execution of such instruments as are hereinbefore required
to be executed and produced to the Eegistrar- General on the entry of the
discharge or transfer of a mortgage in me register book and such endorse-
ment so made on such abstract shall have the same effect and be as valid to
all intents and purposes as if such transfer or discharge had been entered in
the register book by the Registrar- General in manner hereinbefore provided
(7) Upon proof at any time to the satisfaction of the Registrar- General
that any power of attorney or registration abstract is lost or is so obliterated
as to be useless and that the nowers thereby given have never been exercised
or if they have been exercisea then upon proof of the several matters and
things that have been done thereunder it shall be lawful for the Registrar-
General as circumstances may require either to issue a new power of attorney
or registration abstract as the case may be or to direct such entries to be
made in the register book or such other matter or thing to be done as might
have been made or done if no such loss or obliteration had taken place (8)
Upon the delivery of any abstract to the Registrar-General he shall cancel
the same after recording in the register book in such manner as to preserve
its priority the particulars of every lease and of every unsatisfied mortgage
registered thereon and shall enter the fact of such cancellation in the register
book and shall also by endorsement on the grant or certificate of title lease
or other instrument evidencing the title to such land note the particulars of
every such unsatisfied mortgage and of every such lease and the cancellation
of such registration abstract and every registration abstract so cancelled
shall be void to all intents and purposes and he shall file in his office the
duplicates of every memorandum of transfer bill of mortgage lease or other
instrument executed thereunder which may for that purpose be delivered to
him. {Davidion v. Brovon, 183. Z. 198 ; T. 62-3, 143, 74-30, 82.)



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140 QUEENSLAND EBAL PEOPEETT ACT— No. 1.



Herocstion
of power of
attornej



Transferee
not affected
b J notice



108. The registered owner for the time being of any land in respect of
which a power of attorney has been issued may for the purpose of reyoking
such power execute an instrument in the form N of the schedule hereto and
the Itegistrar-G-eneral shall except in any cas^ where a registration abstract
is outstanding enter the particulars thereof in the register book and shall
record thereon the day and hour in which such entry was made and from
and after the date of such entry the Eegistrar-G-eneral shall not give effect
to any memorandum of transfer or other instrument executed pursuant to
such power of attorney and if the holder of such power shall neglect or
refuse to surrender the same to such owner or his agent exhibiting such
revocation order he shall be guilty of a misdemeanour and on conviction
thereof shall forfeit and pay a sum not exceeding one hundred pounds
unless it shall be made to appear to the satisfaction of the court before whom
the case may be tried that the powers given therein had been exercised prior
to the presentation of such revocation order. (N. 74 ; S. 157 ; T. 62-75.)

109. A transferee whether voluntary or not of land under the provisions
of this Act shall not except in case of fraud be affected by actual or construc-
tive notice of any claims rights titles or interests other than those which
have been notified or protected by entry in the register book according to
the provisions of this Act any rule of law or equity to the contrary notwith-
standing Provided always that nothing herein contained shall be held to
deprive creditors of any rights or remedies given or provided by a statute
passed in the thirteenth year of Her Majesty Queen Elizabeth chapter five.

Consent may HO. If the conseut or direction of any person shall be requisite or
e^^raement ueccssary upou a sale or other disposition of land under the provisions of
n^^is^^q' *^^® ^^* ^^ *^y estate or interest therein such consent or direction may be
endorsed upon the memorandum of transfer or other instrument executed
for the purpose of transferring or otherwise dealing with such land or estate
or interest therein in the words following that is to say " I consent hereto "
which consent or direction when signed by such consenting or directing party
and attested in manner hereinafter prescribed shall have full validity and
effect. {Griffin v. Dunn, 8.)

111. If any person interested in any land or in any estate or interest
in land under the provisions of this Act is by reason of infancy lunacy or
other disability incapable of making any declaration or doing anything
required or permitted by this Act to be made or done by a proprietor then
the guardian or committee if any of such incapable person or if there be
none then any person appointed by any court or judge possessing jurisdiction
in respect of the proper^ of incapable persons upon the petition of any
person on behalf of such incapable person or upon the petition of any other
person interested in the making of such declaration or doing such thing may
make such declaration and do such thing in the name and on behalf of such
incapable person and all acts done by such substitute shall be as effectual aa
if done by the person for whom he is substituted. {8t. George y. Burnett,
57 ; Hall v. Loder, 158.)

ud^^tof ViSi. In all cases where a married woman is interested in land under

married the provisious of this Act it shall be lawful for the Eegistrar- General or a
StS^ted in judge of the Supreme Court or the Master in Equity or any person now or
land under hereafter authorised by law to take such acknowledgments on the transfer
^^tiiwiby^ or other dealing with such land by such married woman and whether the
Beigiitrar- instrument of transfer or other dealing shall embrace or relate solely to



ProTision
for oases of
infiuDoy
or other
inoapaoity



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QUEENSLAND EEAL PEOPEETT ACT— No. 1. 141

land nnder the provisions of this Act or shall embrace or relate both to General ss
land under the provisions of this Act and also to land not under its provi- y^g^o^^
sions to take the acknowledgment of such married woman touching the nuMter of
instrument executed by her for the purpose of transferring or otherwise oouiT***
dealing with such land in such manner as the deed of any married woman is
now required be acknowledged by her and also to examine her apart from
her husband touching her knowledge of such instrument ,and to ascertain
whether she freely aud voluntarUy consents thereto and the Eegistrar-
G^eneral or judge or master or any other person taking such acknowledgment Hemoran-
and examination shall sign a memorandum to be endorsed on such instrument f^fnowieS^^
in form of the schedule hereto and an entry of the said acknowledgment shall meat to be
be made in the register book and every such instrument so acknowledged ^i^^ent°
and recorded in the register book shall be as effectual to pass all the estate JJjSJS®' a
right title or interest of the married woman by whom the same is executed entered^in^
in the lands to which the same relates as if she had been then unmarried, v^f'^'*'
{Be Kerr, 6 ; re FykeU, 171. N. 96 ; S. 265 ; V. 66, 125.)

113. The benefits and liabilities in respect to any covenants or powers Biehtsand
under the provisions of this Act shall in case of a married woman extend to SSl^g ®*
and be implied against such married woman and her husband conjointly corertore
during coverture. {Be Fykett, 171.)

114. A corporation for the purpose of transferring or otherwise dealing Seal of
with land under the provisions of this Act in lieu of signing the proper JSSsSt^S
instrument for such purpose prescribed may affix thereto the common seal for signature
of such corporation with a certificate that such seal was affixed by the

? roper officer verified by his signature. (N. 93 ; Z. 18, 166 ; S. 262, 270;
\ 62-95 ; V. 66-10.17-6.)

115. All instruments executed pursuant to the provisions of this Act if Attestatioii
attested by one witness shall be held to be duly attested and if the persons m^ts "^*
executing the same be resident within the colony the execution thereof may ^^^^^^
be proved before the Eegistrar-Qeneral or before a notary public justice of

the peace or a commissioner for taking affidavits or if the said persons be StSumOTts'
resident in the United Kingdom o£ Qreat Britain and Ireland then before beforewhom
the mayor or other chief officer of any corporation or before a notary public ^ ^ P«>Ted
or if the said persons be resident in any British possession then before the
Chief Justice judge of any superior court having jurisdiction in such
possession or before the Governor government resident or chief secretary
thereof or before a notary public justice of the peace or commissioner for
taking affidavits or if the said persons be resident at any foreign place then
before the British consular officer resident at such place. (N. 94 ; Z. 160 ;
8. 267 ; T. 86-29 ; V. 66, 115, 86-71.)

116. The execution of any such instrument or of any release transfer Mode of
or surrender may be proved before any such person as aforesaid by the oath SSat^ente
or solemn affirmation of the parties executing the same or of a witness
attesting the signing thereof and if such witness shall answer in the
affirmative each of the questions following that is to say — ^Are you the
witness who attested the signing of this instrument and is the name
purporting to be your name as such attesting witness your own hand-
writing ? Do you personally know the person signing this
instrument and whose signature you attested P Is the name purporting to

be his signature his own handwriting or mark and did he ireely and
voluntarily sign or make the same P Then the Segistrar-Gbneral justice



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142 QTTEENSLAND BEAL PROPERTY ACT— No. 1.

or other person before whom the witness shall prove such signature shall
endorse upon the instrument a certificate in form P of the schedule hereto
Provided always that if any person signing any such instrument transfer
release or surrender as the maEer thereof shall be personally known to the
Registrar- Qeneral justice or other person as aforesaid it shall be lawful for
such person to attend and appear before such Registrar-G-eneral justice
or otner person to whom he is personally known and then and there
acknowledge that he did &eely and yoluntarily sign such instrument
transfer release or surrender and upon such acknowledgment the Registrar-
G-eneral justice or other person as the case may be shall endorse on such
instrument a certificate in the form or to the effect of the form marked Q in
the schedule hereto and it shall not be necessary for such instrument to be
proved by the attesting witness in manner aforesaid Provided also that
such questions as aforesaid may be varied as circumstances shall or may
require in case any person shall sign such instrument by his mark Provided
also that on the signing of any such instrument by any married woman and
the acknowledgment thereof by her in manner mendoned or referred to in
this Act no further or other proof or acknowledgment shall be requisite or
necessary and every such certificate as aforesaid shall be sufficient evidence
that the execution of such instrument has been duly proved. {Mudgvoay v.



Online LibraryAustraliaThe land transfer laws of Australasia: being the full text with side notes ... → online text (page 29 of 83)