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

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the application, or the title or evidence of title set forth by the applicant is
imperfect, or the applicant has required notice of his application to be
served personally upon any person: If it shall appear to the Begistrar-
G^neral that the title of the applicant belongs to the first class he shall
bring such land under the provisions of this Act forthwith. (Z. 22.)

33. If it shall appear to the satisfaction of the Eegistrar- General that
the title of the applicant belongs to the second class, he shall cause notice
of the application to be published four times in the Oovernment Gazette ;
and shall further limit and appoint a time, not less than one month nor
more than twelve months from the date of the first publication in the
Oovernment Gazette^ upon or after the expiration of which he shall, unless
he shall in the interval have received a caveat forbidding him so to do, bring
the land under the provisions of this Act.

34. If it shall appear to the satisfaction of the Begistrar-Gheneral that
the title of the applicant belongs to the third class, it shall be lav^ul for
him to reject such application altogether or in his discretion to cause notice
of the application to be served upon all persons other than the applicant,
who shall appear to have any interest in the land which is the suDject of
the application and to be published in the Ghvernment Gfazette^ and in such
manner as he may direct ; and to limit and appoint a time, in his discretion,
or as the Court may prescribe, not less than two months nor more than
twelve months from the date of the first of such publications in the
Oovernment Oazette, upon or after the expiration of which it shall be lawful
for the Registrar-General to bring the land under the provisions of this
Act, unless he shall in the interval have received a caveat lorbidding him so
to do.

35. The Begistrar- General shall cause notice to be published in such
manner as aforesaid, or in such other manner as may be prescribed by any
order of the Court, that application has been made for bringing the land
therein referred to under the provisions of this Act, and shaJl also cause a
copy of such notice to be posted in a conspicuous place in his office, and in
such other places as he may deem necessary, and shall forward, by registered
letter marked outside " Lands Titles Office,'* through the Post Office, a
copy of such notice addressed to each of the persons, if any, stated in the
application to be in occupation of the land or to be occupiers or proprietors
of land contiguous thereto, so far as his knowledge of the addresses of such
persons shall enable him, and to such other persons as he may think fit, and
m case the applicant shall have required any notice to be personally served
upon any person named in his application, then and in such case the
Begistrar-General shall cause a copy of such notice to be so served upon
such person. (N. 18 ,• Z. 24 ; Q. 61-21 ; T. 62-19 ; V. 18.)

36. If within the time limited and appointed as aforesaid by the
Begistrar-G-eneral, or under any order of the Court, any notice forwarded by
registered letter as aforesaid, shall not be returned to him by the Postmaster-
General, and if within the time so limited he shall not have received a caveat,
as hereinafter described, forbidding him so to do — and in any case in which



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SOUTH AUSTRALIAN REAL PEOPEETY ACT. 186

personal notice may be required as aforesaid, if he shall have received proof
to his satisfaction that such notice has been served, the Eegistrar-General
shall bring the land described in the application under the provisions of
this Act.

37. The Eegistrar-Gheneral shall bring land under the prov^'sions of this How Umd to
Act by issuing a certificate for the same to the applicant, or to such person n^de^lot^
as he or the person applying in his name or on his behalf may by any
writing under his hand direct. {Featherstone v. Hanlon, 4 ; Saunders v.

Oabot, 16 ; Chomley v. Firebrace, 21 ; Ooleman and Glarh v. Biria, 46.)

38. The Eegistrar-G-eneral whenever he shall be made aware that any o^ » rotnm
notice required by anv applicant to be served personally has failed to be, or faiiwS o? **'
cannot be so served, shall notify the same to such applicant, who, if he thinks pe^onai
fit, may by writing under his hand, withdraw such requirement, and the Begis&r-
Eegistrar- General thereupon or in case any notice shall be returned to him ^5fyfo*Sie
by the Postmaster- G-eneral, may reject the application altogether, or bring appboant
the land therein described under the provisions of this Act forthwith, or or maj
after such further interval, notification or advertisemeut as he may deem fit. ^*!J®y ^
(^Van Damme v. Bloxam, 105 ; Kirhham v. Julien, 109 ; Franklin v. Ind, 156 ; *^^ °
Shackell v. Lindsay y 174 ; Boss v. Victoria Permanent Building Society, 180.

N. 20 ; Z. 22 ; Q. 61-21 ; T. 62-21.)

39. Any person having or claiming an estate or interest in any land .^•*^®*
sought to be brought under the provisions of this Act, or the attorney or Say enter
agent of any such person, may, within the time by the Registrar- General or «»^o*t
under any order of the Court for that purpose limited, lodge a caveat with

the Eegistrar-Q^neral, in the form of the Third Schedule hereto, forbidding Third
the bringing of such land under the provisions of this Aot. Every such ^*^®^°^®
caveat shall state the nature of the estate or interest claimed by the person Careat to
lodging the same, and the grounds on which such claim is founded, and no of^tateroBT'
caveat shall be received unless some address within the city of Adelaide
shall be given therein at which notices and proceedings relating to the
caveat may be served. {Be Thompson and Ohipps, 26 ; re J. B, Slack, 85 ; re
Nelson Bros, 86 ; re David Le Oompt^, 89 ; Biyys v. Waterhouse, 58 ; reJPm,
Biggs, 69 ; ex parte M, Lyons, 59a ; ex parte Power, 59b ; ex parte Peck,
69c ; re Davis, 69d j re Wm. Field, 59e ; re Olarke and Rarvey, 59o ; re
BLayton,ex parte Dibbs, 67 ; D'Albrdyhill v. D'Albrdykill,S2 ; re Wm, Wadham,
114 ; Kissling v. Mitchelson, 123 ; Neill v. Adams, 130 ; Wildash v. Hutchison,
132 ; Butler v. Saddle Rill Mining Company, 163 ; Friebe v. Oullen and
another, 178 ; ex parte Brown, 185 ; re A, Bosquet, 202 ; ex parte Davis, 2* '8 ;
re Pennington, 212. N. 21 ; Q. 20-23 ; T. 62-22 ; V. 118.)

40. The Eegistrar- General shall, upon receipt of any such caveat within if oaTeatbe
the time limited as aforesaid, give notice thereof to the applicant proprietor, JShi^^ime
and shall suspend further action in the matter, and the land in respect of limited.
which such caveat shall have been lodged shall not be brought under the SSyS ^
provisions of this Act until such caveat shall have been withdrawn, or shall

have lapsed from any of the causes hereinafter provided, or until a decision
therein shall have been obtained from the Court having jurisdiction in the
matter. (N. 22 ; T. 62-23 ; V. 85-31.)

41. Any applicant may withdraw his application at any time prior to ^pp^^JJ^
the issuing of the certificate, and the Eegistrar- General shall in such case, SSrUa '
upon request in writing signed by the applicant, return to him, or to the »ppiio»*»o»»



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186 SOUTH AUSTEALIAN REAL FEOPEErT ACT.



DooomantB
of title, if
th«7 inolnde
other pro-
perty, to be
returned to
applicant



Certifloate
to issue in
name of
deceased
applicant
proprietor
or His
nominee



Careat

against



person if any, notified in the application as having a lien thereon, all doca-
ments of title deposited in support of the application. (N. 14, 24, 62-25 ;
Z. 27 ; Q. 61-29, 77-9; T. 62-19 ; V. 66-26, 85-64.)

42. Upon issuing a certificate bringing land under the provisions of this
Act, the Eegistrar- General shall indorse a memorandum on every document
of title deposited by the applicant in support of his application, stating that
the lands described in such certificate have been brought under the Eeal
Property Act If any such document of title shall relate to or include any
property, whether personal or real, other than the land included in the
certificate, the Eegistrar-G^eneral shall return such document to the applicant
but otherwise shall retain the same in his office ; and no person shall be
entitled to the production of any document so retained except upon the
written order oi the applicant or of some person claiming through or under
him, or upon the order of the Court. (T. 62-26.)

43. In case an applicant, or the person to whom he or the person
applying in his name or on his behalf, may have directed a certificate to be
issued, shall die in the interval between the date of the application
and the date on which the certificate shall be issued, the certificate shall be
issued in the name of the applicant, or in the name of the person to whom
it shall have been so directed to be issued as the case may require, and the
land shall devolve in like manner as if the certificate had been issued prior
to the death of the applicant or of such person. ( Featherstone v. Hanlon^
4 ; re Sellars, 32 ; re O'Brien, 34, T. 62-137 ; V. 66-28.)

44. Whenever a caveat shall have been lodged with the Eegistrar-
Q^neral forbidding land to be brought under the provisions of this Act, the
like proceedings as are hereinafter provided for the removal of caveats, in
the case of land already under the provisions of this Act, shall be open to

Proceedings *^® cavcatoo for removal of the caveat, and for the recovery of costs and
under oareat damages from the caveator, in case the caveat shall have been lodged by the

caveator wrongfully and without reasonable cause. (See note to Sec, 39, ante.

Q. 61-24.)

45. Every such caveat shall be deemed to have lapsed, after the expira-
tion of one month from the receipt thereof by the Eegistrar- General, unless
the person by whom or on whose behalf the same was lodged shall, within
that time, have taken proceedings in the Court to establish his title to the
estate or interest claimed by him, and given written notice thereof to the
Begistrar- General, or shall have obtained from the Court an order or injunc-
tion restraining the Eegistrar- General from bringing the land under the
provisions of this Act. No such lapsed caveat shall, except by leave of the
Court, be renewed by or on behalf of the same person in respect of the
same estate or interest. (Summers ea parte Ai/lmn, 62. N. 23, 82 ; Z. 145-146 ;
Q. 61-21, 77-39; T. 62 83, 24; V. 66-117.)

46. The reversion expectant upon a lease shall not be deemed to have
been extinguished in consequence of the land comprised in such lease having
been brought under the provisions of this Act, and the registered proprietor
of any land which is subject to a lease granted prior to the first certificate
being issued in respect of such land, shall be held in all Courts to be seized
of the reversion expectant upon such lease, and to have all the powers, rights,
and remedies to which a reversioner is by law entitled, and shall be subject
to all covenants and conditions in such lease expressed or implied to be
performed on the part of the lessor. (Z. 29 ; T. 62-80 ; Y. 66-51.)



land nnder
the Aot



Oareats
lapse nnless
proceedings
taken within
one month



Caveat not
to be re-
newed with-
out leave of
Court



Beversion
expectant on
lease not to
beeztm-
giuahed



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SOUTH AUSTEALIAN EEAL PEOPEBTT ACT. 187

PART V.

Thb Eegisteb Book.

47. The Eegistrar- General shall continue to keep the book called the gj^**^-
Register Book, containing the records of the title to all land under this Act. kee^BegS-
(N. 30 ; Z. 39 ; V. 66-34.) <^Boo1c

48> Every certificate shall be in duplicate, and the Begistrar-G-eneral oertifloatea
shall bind up in the Register Book one part of every certificate, hereinafter ^u^^
called the original, and shall deliver the other, hereinafter called the duplicate,
to the registered proprietor of the land.

49. Each original certificate shall constitute a separate folium of the yoUob in
Register Book, and the Registrar- General shall record tnereon distinctly and g«gj««'
separately all memorials afiectiug the land included in each certificate.

50. Every certificate shall be deemed to be registered so soon as the regiBtered
same shall have been marked by the Registrar- General with its volume and f^^dS
folium in the Register Book ; and every other instrument shall be deemed Hegiater
to be so registered, so soon as a memorial thereof shall have been entered EjSoments
upon the original existing certificate. {Mudgway v. Davy Sf Buick, 1 ; Barker wgiatered
V. Wield, 31 ; re Beattie, 63 ; re Woods, 95 ; Buckett v. Knohhe, 168. N. 34 ; riaf thMlST
Z. 32 ; Q. 61-34, 36 ; T. 62-34 ; V. 66-41, 42.) S^JS'in

51. Every memorial entered in the Register Book shall be signed by the bSST*"
Registrar- General, and shall state the nature of the instrument to which it Memorial
relates, the day and hour of the production of the instrument for registra- defined
tion, and the names of the parties thereto, and shall refer by number or
symbol to such instrument. {Be Beattie, 53 ; Biggs v. Waterkottse, 58 ; re

Wm. Biggs, 59 ; Aubrey v. Scott, 79. N. 37 ; Z. 175; T. 62-37 ; V. 86-87,
66-40.)

52. Whenever a memorial of any instrument has been entered in the Memoran-
Register Book, the Registrar- General shall indorse on the instrument ^jj^^^^
registered a memorandum of the date and hour on which the memorial was to be in- °°
entered in the Register Book, and shall authenticate such memorandum by Jj*^8*ered
signing his name and affixing his seal thereto ; and such memorandum shall initrument
be received in all Courts as conclusive evidence that the instrument has And to be
been duly registered. {Ohisholm v. Oapper, 86. N. 33 ; Z. 36 ; Q. 61-7 ; T. oTidence
62-8 ; V. 66-47, 78-2.)

53. The Registrar- General, on entering any memorial in the Register Memorial to
Book, shall, except in case of a transfer or other dealing indorsed upon a ^^pu^J^
lease, mortgage, or encumbrance, as hereinafter provided, record the like inatrument
memorial on the duplicate certificate, or other instrument evidencing title to

the land intended to be dealt with, or in any way a:Sected, unless he shall,
as hereinafter provided, dispense with the production of the same, or unless
such production is rendered unnecessary by the provisions of this Act.
(Aiibrey v. Scott, 79 ; Mangakahia v. N, Z. Timber Co., 100. N. 38 ; Z. 36 ;
Q. 61-45; T. 62-38; V. 66-41.)

54. The Registrar- General shall not, except as herein otherwise provided, instrumenta
ree^ister any instrument purporting to transfer or otherwise deal with or iS^*5St^'
af^ct any estate or interest in land under the provisions of this Act except

in the manner herein provided, nor unless such instrument be in accordance
with the provisions hereof.

65, Any^instrument presented for registration may be single or in inrtmxiwnta
duplicate, or if a leaae may be in duplicate or triplicate.



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188 SOUTH AUSTEALIAN BEAL PEOPBETT ACT.

inttmineiite 56. EverT instrument presented for registration shall be attested by a

^ori4 M- ^t^©8s, and shall be registered in the order of time in which the same is

^'dinffto produced for that purpose; and instruments registered in respect of or

trfttion'^*^'" affecting the same estate or interest shall, notwithstanding any express,

implied, or constructiye notice, be entitled to priority, the one over the

other, according to the date of registration, and not according to the date

of the instrument itself; and the Registrar- General, upon registration

thereof, shall file such instrument (if single) in his oflBce, and if in duplicate

or triplicate, shall file one original in his office, and shall deliver the other

or others to the person or persons entitled thereto. {Mudgway v. Davy and

BuicJc, 1 ; Sharpe v. JSadley, 3 ; re Oraig, 76 ; D'Alhrdyhill v. £>' Albrdt/hill, 82 ;

Fatchell v. Maunsell, 113 ; Kissling v. Mitchehon, 123; Wildash v. JELutchUon,

Zr^lJX: 1^2. N. 35; Z. 33 ; T. 62-35 ; V. 66-37, 85-32.)

parTof *^*^ 57. Every instrument shall, when registered, be deemed part of the
Begitter Ecgister Book, and shall have the efEect of and be deemed and taken to be
hiSre the^ ^ ^ ^l^^d duly oiecutod by the parties who have signed the same,
deed* ^ * 68« Should two or more instruments executed by the same proprietor,

Where two *^^ purporting to affect the same estate or interest, be at the same time
or more presented to the Eegistrai- General for registration, he shall register and
^^^^at iii^iorse that intrument which shall be presented by the person producing to
same time him the duplicate certificate or other instrument evidencing title to such
estate or interest. (N. 35 ; Z. 33 ; T. 62-35 ; V. 66-87.)

^o^»o?_ 59. In case any person, who either before or after his death shall be

^InmcMe registered as proprietor of any land, shall die after signing any instrument
par^Swm. ^^^cting such land, and before registration thereof the registration of such
ting iDitra. instrument may nevertheless be proceeded with in accordance with this Act,
™"'^* and shall be vs^d notwithstanding such death.

whom^certd- ®^' ^^ ®*®® ^* ®^^ appear to the satisfaction of the Registrar- General

flcate or " that any certificate or other instrument has been issued in error, or contains
m«Dtof uSe ^^y misdescription of land or of boundaries, or that any entry or indorse-
has been mout has been made in error on any certificate or other instrument, or that
^rjo? 8,ny certificate, instrument, entry, or indorsement has been fraudulently or
jgo wrong- wrongfully obtained, or that any certificate or instrument is fraudulently ©r
BuoJSsSS! wrongfully retained, he may summon the person to whom such certificate or
be'JijiIl?*^ instrument has been so issued, or by whom it has been so obtained or is retained
moned" to deliver up the same for the purpose of being cancelled or corrected as the

case may require. (Cuthbertson v. Stoann, 144. N. 26, 126 ; Z. 12, 28, 69 ;

Q. 61-31 ; Y. 66-28, 85-39, 132.)

ftSS^to*" ®^' ^^ ^^^^ ®^^^ person shall refuse or neglect to comply with such

deUTfrnp summous, the Eegistrar- General may apply to the Court to issue a summons

fofS^Sa- ^^^ ^^^^ person to appear before the Court and show cause why such certifi-

tionoroor- cato or other instrument should not be delivered up to be cancelled or

hemSSi corrected ; and if such person, when served with such summons, shall neglect

w»^broMht or refuse to atteud before such Court at the time therein appointed, it shall

Oonrt , be lawful for such Court to issue a warrant authorising and directing the

person so summoned to be apprehended and brought before the Court for

examination. {Be Beattie, 53 ; Biggs v. Waterhouse, 58 ; re Wrx . Biggt^ 69.

N. 44 ; Z. 71-2, 73-78 , Q. 77-28 ; T. 62-136, 138; V. 66-62, 132.)

Court ma^ 62. Upon the appearance before the Court of any person summoned

«ry ofiMtru- or brought up by virtue of a warrant as aforesaid, it shall be lawful for the
Court to examine such person upon oath, and to order him to deliver up



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SOUTH AUSTBALIAN EBAL PEOPBETT AOT. 189

such certiiicate or other instrument, and, upon refusal or neglect by sucli
person to deliver up the same pursuant to such order, to commit him to gaol
tor any period not exceeding six months, unless such certificate or instru-
ment shall be sooner delivered up. (T. 62-137 ; Q. 61-181 ; V. 66-32.)

63. In such case, or in case a summons by the Begistrar-General or a And may
Judge cannot be served upon such person as hereinbefore directed, the Court ^'Si^'
may direct the Eegistrar-Q-eneral to cancel or correct any certificate or other ®*5°S2L
instrument, or any entry or memorial in the Register Book relating to such iateratdonto
land, and to substitute and issue such certificate or other instrument, or ^^^^J^^
make such entry as the circumstances of the case may require, and the Book
Registrar- General shall give elEect to such order.

64. In any proceeding in the Court respecting any land, or any transac- Powewof
tion, contract, or application relating thereto, or any instrument, caveat, ^"JJJ* J^_
memorial, or other entry affecting any such land, it shall be lawful for the oeUation of
Court to direct the Eegistrar-Q-eneral to cancel, correct, record, substitutiB, JJ'i^JJ*®
issue, or make any certificate, or any memorial or entry in the Eegister Book,

or otherwise to do such acts and make such entries as may be necessary to
^ve effect to any judgment, decree, or order of such Court given or made
in such proceeding, and the Eegistrar- General shall obey every such direction.
(JBtf Beattie, 53 ; Biggs v. Waterhouw, 58 j re Wm. Biggs, 59. Z. 176 ; V.
86-37.)

65. Any person shall, upon payment of the fee for that purpose Search
specified in the First Schedule hereto, have access to the Eegister Book, and •^**^®^
to all instruments filed and deposited in the Lands Titles Office for the g^ ,
purpose of inspection during the hours and upon the days appointed for ^
search. (N. 103 ; Q. 77-50, 78-4 ; V. 66-141.)

66. "Whenever there shall be any conflict, difference, or variation ^conflict
between the contents of or the entries or memorials on any original certifi- tiflwSTanS'"
cate, and the contents of or the entries or memorials on the duplicate of |jgj*^
such certificate, or whenever any entries or memorials shall appear on such latter to
first-mentioned certificate, which shall not appear on such duplicate, the p'*'^^
original certificate shall prevail.

PART VI,

Thk Title of EsaisTEBEn Fbopbiitobs.

67. No instrument shall be effectual to pass any land or to render any inBtnunents
land liable as security for the payment of money, but upon the registration JS^a^J^*^
of any instrument in manner herein prescribed, the estate or interest tratum
specified in such instrument shall pass, or, as the case may be, the land shall
become liable as security in manner and subject to the covenants, conditions,

and contingencies set forth and specified in such instrument or by this Act
declared to be implied in instruments of a like nature. (N. 85 ; Z. 86 ;
Q. 61, 48, 77-14 ; T. 62-39 ; V. 66-61.) Pe«on.

68. The person named in or appearing by any certificate or other oertifloiSa
registered instrument as seized of or taking any estate or interest in land ^^terad
shall be the registered proprietor thereof, (i^. 34 ; T. 62-84.) proprietor

69. The title of every registered proprietor of land shall, subject to '"•^J^^Ld
such encumbrances, liens, estates, or interests as may be notified on the ^prietors
original certificate of such land, be absolute and indefeaaible, subject only JJ^jJf^^^*'
to the following qualifications : — cam of—



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190 SOUTH AU8TBALIAN EBAL PEOPEBTT ACT.

Fnad (i) Iii the case of fraud, in which case any person defrauded shall hare

all rights and remedies that he would have had if the land were not
under the provisions of this Act : Provided that nothing included
in this subjection shall affect the title of a registered proprietor
who has taken bond Jlde for valuable consideration, or of any
person bond fide claiming through or under him. (^National Bank
V. National Mortgage and Agency Ob., 12 ; Ohomley v. Mrebraee, 21 ;
Wiggins app, Hammill resp., 38; Oeorge v. Auitralian Mutual
Prov. Society, 66; Qreen v. Watson, 91; Rail y. Rail, 98; Colonial
Bank y. Bie, 107 ; Jones v. Jones, 334 ; Finnoran v. Weir, 186.)

dSiiS^ (n) In the case of a certificate or other instrument of title obtained bj

forgerj or by means of an insufficient power of attorney or from a
person under some legal disability, in which case the certificate or
other instrument of title shall be void: Provided that the title of a
registered proprietor who has taken bond fide for valuable con-
sideration shall not be affected by reason that a certificate or other
instrument of title was obtained by any person through whom lie
claims title from a person under disability, or by any of the means
aforesaid. (N. 31 ; T. 62-32.)

j^JJ^^J^ (m) Where any portion of land has been erroneously included, by
Umd wrong description of parcels and boundaries, in the certificate or

other instrument evidencing the title of the registered proprietor :
In which case the rights of the person who but for such error
would be entitled to such land shall prevail, except as against a
registered proprietor taking such land bona fi4e for valuable con-
sideration, or any person bma fide claiming through or under him.



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