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

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(Sharpe v. Radleg, 3 ; Campbell v. Jarrett, 96.)

2°^JJo' (rv) Where a right-of-way or other easement not barred or avoided by

^"™*" the provisions of the " Eights-of-way Act, 1881," or of this Act,

has been omitted or misdescribed in any certificate, or other instru-
ment of title : In which case such right-of-way or other easement
shall prevail, but subject to the provisions of the said ** Eights-of-
way Act, 1881," and of this Act. {Anderson v. Maori Rill
Borough, 103 and 124.)

Bewtnx (y) Where two or more certificates shall be registered under any of

fofthSm© the Eeal Property Acts in respect of the same land: In which

1^^ caoe the title originally first in (fstte of registration shall prevail.

cej«fl<»to (vi) Any certificate issued upon the first bringing of land under the

•07 peraon provisions of any of the Beal Property Acts, and every certificate

u in vo^^ issued in respect of the said land, or any part thereof, to any

riSfeSij person claiming or deriving title under or through the first regis-

SviJjiyto tered proprietor, shall be void, as against the title of any person

the first adversely in actual occupation of, and rightfully entitled to, such

p^piietor l^i^dy or any part thereof, at the time when such land was so

brought unaer the provisions of the said Acts, and continuing in

such occupation at the time of any subsequent certificate being

issued in respect of the said land. (Z. 67 ; T. 62-135.)

Wtfystitie (yn) Where a husband shall have been wrongfully registered as co-

toprerui proprietor of land belonging to his wife for her separate use or as

her separate property, in which case the title 01 the wife shall



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SOUTH ATJSTEALIAN EEAL PEOPERTT ACT. 191

preyail except as against a registered proprietor taking sucli land
bona ^e for valuable consideration, or any person bona fide
claiming through or under him. (Z. 121.)
(vm) Where at the time when the proprietor becomes registered aAiesMor
tenant shall be in actual possession of the land under an unregis- nofSiore'
tered lease or an agreement for a lease or for letting for a term than % jt^t
not exceeding one year: In which case the title oi the tenant
under such lease or agreement shall preyail.
(ix) Where the succession duty payable in respect of the land has not Non-pa/-
been paid, and the certificate in sub-section 6 of section 3 of Act ^l^Snt
No. 225 of 1881 has not been obtained : In which case any char^ c^esion a j
by law imposed on the land in respect of such duty shall remain in
force.
70. In all other cases the title of the registered proprietor of land in au other
shall prevail, notwithstanding the existence in Her Majesty, her heirs, orJJ^j^^®'
successors, or in any person of any estate or interest whatever whether proprietor
derived by grant from the Crown or otherwise, which but for this Act p'*'*^
might be held paramount or to have priority ; and notwithstanding any want
of notice or insufficient notice of any application, or any error, omission,
or informality in any application or proceedings.

71* Nothing in the two preceding sections contained shall be construed Saving of
BO as to affect any of the following rights or powers, that is to say — rSStoand

I. The power of Sheriff to sell the land of a judgment debtor under a ^*i^f"*

wnt oi fieri facias or other writ of execution : (Neil v. Adams, 180 ; saiw by
Beath v. Anderson, 192 j Bobertson v. Keith, 196 ; ex parte Botoman, Sheriff
2. N. 92 ; Q. 77, 85.)

II. The power of the Court to order the sale of land : {St. Oeorge v. s^J* anci«f

Burnett, 175 ; Boss v. Victoria BuiUing Society, 180; re John Baton, cSSt''^^
194. N. 98 ; T. 62-94.)
HI. The right of the Official Eeceiver or of any trustee to land Tramnnii-
transmitted on the insolvency or statutory assignment of theSl^y^oy
registered proprietor : (Fannan v. Bannan, 18. N. 75 ; Z. 119 ; or assign-
Q 61-80;*. 62-76.) ' '»«.t

IT. The rights of a person with whom the registered proprietor shall Contracts
have made a contract for the sale of land or for any other dealing
theiewith : (Sharpe v, Hadley, 3 ; Watson v. Watson, 93.)
V. The rights of a cestui que trust where the registered proprietor is a Tmrts
trustee, whether the trust shall be express, implied or constructive.
{puthbertson v. Swarm, 144 ; ex parte Bennington, 217. N. 60 ; Z.
122; Q. 61-80, 79; T. 62-66; V. 66-38.)
VT. The right of promoters of an undertaking to vest land in them- ^^•^"^^^
selves by deed-poll pursuant to the *' Lands Clauses Consolidation S^^der-
Act," or any Act amending the same: {Mudgwag v. Davy and^^^^^
Buick, 1 ; re Craig, 76.)
Provided that no unregistered estate, interest, power, right, contract, or^^^
trust shall prevail against the title of a registered proprietor taking bona qnent pnr-
flde for valuable consideration, or of any person bona fide claiming tl^ough ^^^^■•«"
or under him.

72« Knowledge of the existence of any unregistered estate, interest, Knowledge
contract, or trust shall not of itself be evidence of want of bona fide9 so as to ^^M°or
affect the title of any registered proprietor. (JEa parte Binlay, 56.) jj^t of bona



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192 SOUTH ATJSTEALIAN EEAL PEOPEETT ACT.

PART VII.

Cbktificatbs of Title.

Cwrtiflcateof 73, The registered proprietor of an estate of freehold in land, other

than a leasehold for life or Ures, shall be entitled to receive a certificate for
|5J2^ the same, which ceitificate shall be in the form in the Fourth Schedule

hereto, or in a form to the like effect, and shall set forth the nature of the

estate in respect of which it is issued. (Sharpe r, Sdiley^ 3 ; Ffiatherstone v.

Sanlon, 4 ; Slack y. Downton^ 11 ; Pannan ▼. Fannan, 18 ; Chomley y.

Mrebraee, 21 ; Mouse y. O'Farrell, 51 ; re Sayton ex parte Dihhsy 67 ;

WaUon y. Watson, 93 ; Hall v. Hall, 98 ; Fitzgerald y. Archer, 101 ;

Eirhham y. Carpenter, 111 ; Jones y. Jones, 134 ; Wadham y. Buttle, 155 ;

Stevens y. Williams, 186 ; Bohertson y. Keith, 195 ; re John Eaton, 194 ;

Formby y. Adelaide Corporation, 199 ; Miller y. Morrissey, 214 ; Murphy y.

Fenons Mitchell, 215.)
re^steredas

prirt^*to ^^^ -^^ ^^ °*^^® persons registered as joint proprietors of an estate mr

be joint interest in land shall be deemed to be entitled to the same as joint tenants ;

J^^^'jQ and in all cases where two or more persons are entitled as tenants in

oommon to commou to an estate of freehold in any land, such persons may receiye one

rStttecT^ certificate for the entirety, describing them as tenants in common, or each
®«^^°**« o' may receive a separate certificate for his undivided share. {Fa parte Locke,

mtitSy 43. N. 86 ; Z. 54, 62 ; Q. 61-40, 92 ; T. 62-88, 86-15 ; V. 66-44.)

tobelSued ^5. The proprietor of an estate of freehold in remainder or reversion in

for freehold land, f or a hf e estate in which a certificate has already been issued, may
ttkdtol^OT' ^f^Te his estate registered on the certificate issued for the life estate or may
togrtifioate receivo a separate certificate for his estate, which shall refer to the certificate
ticuiM^^' of the particular estate.

Mtate

Mode of 76. Every certificate or other instrument of title issued to or made in

OTiraooS?** favour of a corporation, aggregate or sole, shall be deemed to extend to and
donjSf^be include the successors of such corporation, and every such certificate or
implied instrument of title issued to or made in favour of any person shall bo

deemed to extend to and include the legal representatives of such person.

(Q. 61-32 ; V. 66-65, 105.)

M^o^ 77. The Registrar-General shall record on every certificate issued by

^HittB ' him, and in such manner as to preserve their respective priorities, memorials
of all subsisting mortgages, leases, and encumbrances, and of any dower or
rent charge to which the land may be subject ; and if such certificate be
issued to a minor or to a person otherwise under disability, he shall record
thereon the age of such minor or the nature of the disability, so far as
known to him.

Upwiror- 78. Upon the application of any registered proprietor holding land

eSftSg^oer- Under one or more certificates, and the delivering up of such instruments of

*ro*iSor** title, it shall be lawful for the Registrar- Q-eneral to issue to such proprietor

m»7 obtain a one certificate for the whole of such land, or several certificates each

tmSte°Sr comprising portion of such land, in accordance with such application ; and

au the land upon issuing any such new certificate the Registrar- General snail cancel the

ttSito^ duplicates delivered up, and the originals, and shall endorse thereon a

memorandum, setting forth the occasion of such cancellation, and referring

to the new certificate issued in lieu thereof. (N. 97 ; Z. 135 ; Q, 61-94 ; T.

62-99; V. 66-55.)



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SOUTH AUSTEALIAN EBAL PEOPERTT ACT. 193

79. In the event of any duplicate certificate being lost, mislaid or Prorimon in
destroyed, any person having knowledge of the circumstances, may make a ^^!^l^
declaration before any of the persons before whom the executiofi of instru-
ments under this Act may be proved, stating the facts, and the particulars

of all mortgages, encumbrances, or other matters affecting the land and the
title thereto, to the best of the declarant's knowledge and belief. The Proyisionai
Eegistrar-General if satisfied as to the truth of such declaration, and the S!^?^
hona fides of the transaction, may, upon giving at least fourteen days' notice issued
in the Chvemment Gazette of his intention so to do, issue to the registered
proprietor a certificate to such land, which certificate shall be an exact copy
of the original certificate, and of every memorandum and indorsement
thereon, and shall state why such certificate is issued ; and the Eegistrar-
Oeneral shall at the same time enter in the Eegister Book notice of the
issuing of such certificate, and the date thereof, and the reason why it was
issued, and such certificate shall be available for all purposes and uses for
which the certificate lost, mislaid, or destroyed, would have been available,
and shall be equally valid therewith. (N. 98 ; Z. 47, 75 ; Q. 61-117 ; T.
62-100; V. 66-131.)

80. Every certificate shall be issued under the hand and seal of the Certifioste
Eegistrar- General, and the original or the duplicate thereof shall be received riy^Jidenoe
in all Courts as evidence of the particulars therein set forth and of their ©f title,
being entered in the Hegister Book, and shall (except in any of the cases herem pro.
herein otherwise provided) be conclusive evidence that the person named in ^^^
such certificate, or in anv entry thereon, as seized of or as taking an estate

or interest in the land therein described, is seized of or entitled to such
estate or interest ; and that the land described in such certificate is under
the provisions of this Act. (Jones v. Fark, 81 and 87. N, 33 ; Z. 66-47,
78-2 ; Q. 61-122 ; T. 62-33 ; V. 65.)

PART VIII.

Easements.

81. Any certificate hereafter issued may contain a statement therein or Certificate
entry thereon to the effect that the land therein described has appurtenant JJIteSSi?*of
thereto any easement, or that the person therein named is entitled to any nght-of-wsy
easement in gross, or that the land therein described is subject to any right ^^^ent
or rights-of-way or other easement. (Anderson v. Maori Hill Boroughy 103 ;
Hunter v. Flayer, 24 ; Jones v. Bark, 81. N. 43 ; Z. 61 ; Q. 61-51, 77-28 ;

T. 62-43, 86-27 ; V. 85-41.)

82. Every such statement or entry shall fully set forth a true and Nature of
accurate description of the easement, or, if the instrument creating the same ■****"'®^*
be enrolled or deposited in the General Eegistry Office, or deposited in the
Lands Titles Eegistration Office, shall refer to such instrument : Provided certificate
that, in the case of any easement, the certificate shall also contain a plan of i{^°'*'*"^
the land over which such easement extends, or if a plan showing the extent

of such easement shall have been deposited in the General Eegistry Office,
or the Lands Titles Eegistration Office, shall refer to such plan, {^irhhan^
Y. OarpentcTy 111 ; Stevens v. Williams, 186.)

83. The registered proprietor of land brought under the provisions of Begistered
the " Eeai Property Act of 1861 " after the passing of the ;* Eights-of -Way g^^^to iS'
Act 1881 " or of land hereafter brought under the provisions of this Act ■abject to
shall be deemed to hold the land comprised in the certificate of such land motioned
subject to such rights-of-way only as are mentioned and set forth in such "^ «**^<***
certificate.

as



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194 SOUTH AUSTBALIAN REAL PEOPEETT ACT.

Bight^f- 84. No easement hereafter created by express grant or transfer over or

«S»ed^* in respect of any servient land under the provisions of this Act shall be

binding on any registered proprietor subsequently taking the land hona fide

for valuable consideration, unless such easement shall be entered on the

original certificate of such land, and also upon the duplicate certificate. {Be

Wm, Biggs, 59 ; Jones v. Bark, 87 ; Forniby v. Adelaide Corporation ^ 199.)

hS3?fr©eof 85. The registered proprietor of any land shall, as from the eighteenth

righta-of- day of November, one thousand eight hundred and eighty-six, hold the same

^^ freed and discharged from all rights-of-way existing on or before that date,

and not entered upon the original certificate of such land in pursuance of an

application made on or before such date under the " Eights-of-Wav Act,

1881." {Jones v. Bark, 81.)

rightiwrf- 8®* I^g^ts-of wajr or other easements now or hereafter acquired or

w»y, Ao.. enjoyed by the public, in, over, along or across any servient land shall not

Si Act ^ deemed to be rights-of-way or easements within the meaning of this part

of this Act, or in respect of which applications may be made or caveats

entered, and nothing nerein contained snail derogate from any such rights

or easements, or be deemed to confer on the registered proprietor of any

such servient land a right to interfere with or obstruct the public use of any

way or other easement so acquired or enjoyed as aforesaid. {Jones v. Bark^

81.)

gj^jJfoiJr 87. Every certificate issued before the eighteenth day of November,

iMuedoon. oue thousaud eight hundred and eighty-one, containing therein a statement

elidraoe of *^ *^® efEoct that the registered proprietor is seized of the land therein

way therdii described, subject to or together vnth any right-of rway therein described

***^*^®^ or delineated, or together with any easement therein described, shall be

Not to » deemed to operate as a grant or reservation, as the case may be, of such

to*righ*p?/ right-of-way or other easement, and such certificate shall, except in the

toTMndmir ^^^ ^^ fraud, be received in all Courts as conclusive evidence of the

litigation, or existence of such right-of-way or other easement: Provided that this

ww^ hw section shall not apply to any right-of-way or other easement, the title to

ofiJd d^Sd ^^^^ ^^ ^^^ *^® subject of pen^'ng litigation hi any Court of Law, or to

Terady ' &ny right-of-way or other easement, the right to which has been concluded

Bightf^f. ill aiiy Court adversely to such right-of-way or easement. {Jones v. Bark, 81.)

heiSSr to 88- Whenever any right-of-way or other easement appurtenant to land

^^t«red under the provisions of this Act over land also under its provisions shall

o»^ S ' hereafter be granted or created, the Eegistrar- General shall enter the

bo^oii: memorial of the instrument panting or creating such right-of-way or

nantand easement upon the original certificates of the dominant and serviert lands

I^*°* respectively, and also upon the duplicates of such certificates.

Short form 89- The words " together with a free and unrestricted right-of-way "

rL^of-**"** ^^ ^^1 instrument shall be deemed to imply the words set forth in the Fifth

w»T. ' Schedule hereto so far as they shall be applicable as fully and effectually as

I^Qi^ if set out at length in such instrument.

Proprietor .®0* ^^1 registered proprietor* of any land may deposit with the

may d«pofit Sogistrar- General a plan of subdivision of the said land showing the rights-
riSio™' of -way intended to be created by such proprietor over such land, and eveiy
^»y. 8ubse(^u ent registered proprietor of the said land, or any part thereof, shall

Subsequent be entitled to a right-of-way over all the rights-of-way shown in such plan,
to*i?o"^" unless otherwise declared in his certificate. {Re Win. Biggs, 59 ; Jones v.
titled toaU Bark, 87 ; Kirkham v. Carpenter, 111 ; Stevens v. Williams, 186 ; Formby t.
Buoh^right.. jidelaide Corporation, 199.)



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SOUTH AUSTEALIAN EEAL PROPEETT ACT. 195

PART IX-

Cbown Leases.

91. For tbe purpose of this part of tbis Act, every lease or agreement interpreta.
for sale of Crown lands hereafter granted, or made by or on behiJf of the c^infiease
Crown, shall be deemed a Crown lease. (JSx parte Ellison, 48.)

92. Every person now holding any Crown lands under any lease or Penon now
agreement for sale granted or made by or on behalf of the Crown may, SSd^fewe
subject to the approval of the Commissioner, surrender his lease or <>' »8t©«-
agreement for a Crown lease of the land remaining, subject to such lease ram^r
or agreement upon all the same terms as shall have been applicable to such

land prior to the surrender, but so that every person having any estate or
interest in the surrendered land shall concur m the surrender. (Kearton v.
Bichardson, 125. N. 50 ; Z. 89 ; Q. 61, 64 ; T. 62-15 ; V. 66-82.)

93. Every Crown lease shall be in triplicate, and after being duly LeaM to be
executed shall be forwarded to the Eegistrar- General, who shall bind one *°*"p^**^
copy in a book to be called the Eegister of Crown Leases, and shall return

one copy to the Commissioner of Crown Lands and forward the other .to the
tenant entitled thereto. The Eegistrar- G-eneral, shall mark on each part of
every Crown lease, a copy whereof shall be bound in the Eegister of Crown
Leases, the volume and folio as appearing in the Eegister Book of Crown
Leases, and such Crown lease shall thereupon be deemed to be registered, m»v be
and may be transferred, mortgaged, and dealt with for all the purposes of J ^ granted
this Act in like manner as if it Imd been granted by a registered proprietor ^^^.
and registered in the Eegister Book in the ordinary way, excepting only that pri^or
any entries which ordinarily would require to be made in the Eegister Book
shall be made in the Eegister of Crown Leases, and on the folio constituted
by the Crown lease. (Q. 77-16 ; T. 86-3 ; V. 85-2.)

94. The Eegistrar- General, upon receipt of notice from the Com- g^J*^'-
missioner of Crown Lands that any Crown lease has been lawfully forfeited ©nter forV*
or determined in whole or in part, shall make an entry to that effect in the foita»»
Eegister of Crown Leases, and such forfeiture or determination, shall
thereupon have effect. {Fisher v. Qcffney^ 102; Etter shank v. The
Queeuy 153.;

95. Nothing hereby contained or hereby implied shall be constructed Not to give
to give any greater effect or different construction to any Crown lease SJcrttTw'
registered pursuant to. this part of this Act than would have been given to ^^» Act
it if this Act had not been passed, nor shall any right or remedy, which the beenpasaed
Crown would otherwise have possessed, be in any way prejudiced or altered.
The Commissioner of Crown Lands may, from time to time, make any commis-
regulations which may be considered expedient for givirg effect to this part JJSe'r
of this Act, and all such regulations, when published in the Government lations
Gazette, shall have the force of law. (Ex parte Bond, 89, 90. V. 66-126.)



noner may
regu-



PART X.

Tbaksfebb

96. When any land is intended to be transferred, or any right-of-way Transfers
or other easement is intended to be created or transferred, the registered gj^^
proprietor shall execute a transfer in the form of the Sixth Schedule hereto, schedule
which transfer shall, for the description of the land intended to be dealt
with, refer to the certificate of such land, or shall give such description as



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196 SOUTH AUSTRALIAN REAL PROPERTY ACT.

may lie sufficient to identify tlie same, and shall contain or have indorsed
thereon a memorandum of all leases, mortgages, and encumbrances to which
the land shall be subject, and an accurate statement of the estate or interest,
intended to be transferred or created. {D'AlbrdyUll t. D' Alhrdyhill, 82 ;
Maddison v. McArthy^ 83 ; Kelly v. Fuller^ 139 ; Eormhy v. Adelaide
Corporation, 199. N. 42 ; Z. 76 ; Q. 61-48 ; T. 62-42, 86-137 ; V. 66-57.)

STirnd*JSb- ^^' ^^ 6v®ry instrument purporting to transfer land mortgaged or

jeofctomort. eucumbored there shall be implied the following covenant by the transferee

Scum' ^^^ *^® transferor, and so long as such transferee shall remain the

brance, to registered proprietor, with the mortgagee or encumbrancee, that is to say

SanSSJS — '^^^* *^® transferee will pay the principal, interest, and other moneys

secured by such mortgage or encumbrance, after the rate and at the time or

times specified therein, and will indemnify and keep harmless the transferor

from and against such principal, interest, and other moneys, and from and

against all liability in respect of any of the covenants contained in such

mortgage or encumbrance or by this Act implied on the part of the

traubferor. (N. 46 ; Q. 61-68 ; T. 62-46 ; Y. 66-63.)

Hon"? '^^ 98, When a transfer purporting to transfer any estate of freehold is

transfer presented for registration, the duplicate certificate shall (except as herein
fjjgfl^^t^^ otherwise provided) be delivered to the Registrar - General ; and the
be oanoeUed Registrar- Cfeueral shall, upon registering the transfer, enter on the original
certificate and also on the duplicate certificate (if delivered to him) a memo-
randum cancelling the same, either wholly or partially, according as the
transfer purports to transfer the whole or part only of the land comprised
in such certificate. {Be Beattie, 53; Btyys v. Waterhouse^ 58; re Wm.
Biggs, 69. N. 3, 44 ; Z. 32, 73-78 ; Q. 61-3, 77-28 ; T. 62-3, 138 ; V. 62,
66-3.)

S^and^^^^ 99. In case the whole of the land comprised in any certificate is

transferred transferred, such certificate need not be cancelled, but upon the transfer

being registered and a memorial thereof entered on the duplicate certificate,

the Registrar-General may deliver such duplicate to the transferee or other

person entitled thereto.

Fresh ocrti- 100. The Registrar- General shall, upon cancelling any certificate,

^^*^to^ either wholly or partially, pursuant to any transfer, issue to the transferee a
purchaser certificate of the land mentioned in the transfer, and every such certificate
A certificate shall refer to the transfer ; and the Registrar- General shall retain every
™??r^™ such cancelled or partially cancelled certificate, and shall, whenever required

Mice, u any -r.! . *« •' . i. <»i-i.iti» t

untrane- Dy the proprietor of any portion or balance of land included in any such
Su^'t? ^ partially cancelled certificate, iasue to such proprietor a certificate for the
proprietor portion or balance of which he is proprietor. (Y. 66-62.)

manded \0\. Any registered proprietor subdividing land for the purpose of

Maps, fto., selling the same in allotments shall deposit with the Registrar-General a
to 1MB depo- jjjg^p Qj. pjg^^^ jjj duplicate, of such subdivision. Such map or plan shall
exmbit, distinctly delineated, all roads, streets, passages, thoroughfares,
squares or reserves appropriated or set apart for public use ; and also all
allotments into which the said land may be divided, marked with distinct
numbers or symbols ; and every such map or plan shall be signed by the
registered proprietor, or his attorney, and shall be accompanied by a declara-
tion by a licensed surveyor that he has personally surveyed such land, and
that such map or plan is a correct delineation of the subdivision thereof.
(N. 100, 101; Q. 61-U9; T. 62-103, 104; V. 66-184.)



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SOUTH ATJSTEALIAN EEAL PEOPEETT ACT. 197

102. Whenever the Court or a Judge, under the powers conferred by Memorial of
" The District Councils Act, 1876," or " The Municipal Corporations Act, Sde^nLd



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