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

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1880," or any Act or Acts amending the same, or any other Act, shall have fof non-
made an order for the sale of any land under the provisions of this Act, the ?atei ^"* ^^
Registrar- General shall, upon being served with a copy of the order, mark
thereon the time of such service, and shall enter a memorial thereof in the
Register Book, which shall operate as a caveat against alienation other than

in pursuance of such order while the same remains in force. (Ex parte
Folk, 170 ; re James, 193.)

103. Upon the production to him of a transfer of the land, duly exe- Hegi«tr»«on
cuted in pursuance oi any such order, the Registrar- General shall (without uiereunder
requiring the production of the duplicate certificate) register such transfer,

and enter on the original certificate a memorandum cancelling the same,
either wholly or partially, as the case may require, and shall issue to the
transferee a certificate of the land comprised in such transfer, free from all
encumbrances, charges, exceptions, qualifications, and conditions whatsoever
other than those mentioned in the transfer.

104* In any such case, if only a portion of the land comprised in any Discharge of
certificate has been sold, and the whole of the arrears of rates, interest, and n»«mori»i
costs appear to be satisfied by the sale of the land tiansferred, a statement
to that effect shall be appended to the transfer, signed by the Master or
other officer of the Court acting in that behalf ; and thereupon the Registrar-
General shall make an entry on the paitiallv cancelled certificate in the
Register Book, discharging the memorial of the order entered thereon.

105* No execution issued prior to or after the passing of this Act shall Saie under
bind, charge, or affect any land, but the Registrar- Genersd shall, oa beinft ^dwreef"*
served with a copy of any writ of ^eri facias or other writ or warrant or wMmnt, or
execution against land, or of any decree or order (other than an order for conrt**
sale for non-payment of rates) affecting land issued out of or made by the
Court, or any Court of Insolvencv or other Court of competent jurisdiction,
accompanied by a statement signed by any party interested, or by his attorney,
solicitor, or agent, specifying the land sought to be affected thereby, mark
upon such copy the time of such service, and shall enter a memorial of
such writ, warrant, decree, or order on the original certificate, which shall
operate as a caveat against alienation other than in pursuance of such writ,
warrant, decree, or order, while the same remains in force. (Jones v. Park,
87; re Wm, Wadham, 114; Palmer y. Andrews, 146, 147; PatcheUY.Maun-
sell, 148; Umpher stone y, Wadham, 149; Giles v. Less&r, 150. N. 97; T.
62-94; V. 66-106.

106. Until such service and entry no sale or transfer under any such Transfer
decree, order, writ, or warrant shall be valid as against a purchaser for valuable J^*.^ ^lis^et
consideration, notwithstanding the purchaser had actual or constructive purchaser
notice of such decree, order, writ, or warrant. ^^^t^

107. After any land so specified as aforesaid shall have been sold under Transfer on
any writ, warrant, decree, or order, the Registrar- General, on receiving a J^^^jJ^J
transfer thereof in such one of the forms of the Seventh Schedule hereto rant) decree,
as shall be applicable, shall, subject to the provisions hereinafter contained, °^ °^^
register such transfer by making an entry thereof in the Register Book, and ^^\
on such entry being made the purchaser shall be deemed the transferee and *
registered proprietor of the land so sold ; and every sale under any such

writ, warrant, decree, or order shall take priority over and be effectual as



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198 SOUTH ATTSTEALIAN EEAL PEOPEETT ACT.

affainst any other dealing affecting sucli land, entered into or transacted
after the serrice of the writ, warrant, decree, or order, and the entry thereof
Produotion on the original certificate.

Lstnunent* 108* The Eogistrar- General may register a transfer under any decree

ontnSSer^ or order, or under any writ or warrant of execution of a Court, as herein-
ander decree before mentioned, without requiring the production of the duplicate certifi-
Srii1>?Wr. cat«» or other instrument of title. (Finnoran v. Weir, 186. Z. 88 ; T. 86-
«nt 88 ; V. 86, 61.)

&SS!Ito. 109. The Eegistrar- General shall, upon production to him of suflBcient
nuit, decree, OTidence of the satisfaction of any such decree, order, writ, or warrant as
or order aforesaid, cause an entry of such satisfaction to be made in the Eegister

Book, and on such entry such writ, warrant, decree, or order shall be deemed

to be satisfied.

LapM)of 110« Every decree, order, Brit, or warrant of execution shall cease to

wiiramt^cr ' hind, charge, or affect any land unless a transfer upon a sale under such
erder ' writ, warrant, decree, or order shall be presented for registration within six

months from the day on which the copy was served, or within such extended

time as the Court shall order.

Sr^Jirt*' 111, The registered proprietor of any estate or interest in land may,

MtoJjointif by any of the forms of transfer provided by this Act, modified as may be

Md^ShwM necessary, transfer such estate or interest, or any part thereof, to the wife

without ' or husband of such registered proprietor, or to such registered proprietor,

UmitfagMy j^^ j^y other person or persons, as joint tenants or tenants in common, and

executing may limit any estates by remainder or otherwise, without limiting any use,

mit" or executing any re-assignment; and upon the registration of any such

transfer the estate or interest thereby dealt with or transferred shall vest in

the transferee or transferees, according to the intent and meaning appearing

in and expressed by such instrument. (N. 89-109 ; Q. 61-82 ; T. 62-86.)

2J^^«* 112. Upon the production of the receipt of the Treasurer in full satis-

re^^red factiou of the purchase-moucy of any land alienated in fee from the Crown,
Sane of ***** together with a transfer, mortgage, lease, or other instrument, duly executed
g»nt from by the purchaser from the Crown of such land, the Eegistrar-Gheneral shall
* ^^ indorse upon such receipt and sign and stamp with his seal such memorial
as he is required to enter in the Eegister fiook upon the registration of
any dealing of a like nature with land in respect of which a certificate has
been registered, and so on from time to time with respect to any other
dealing before the registration of the grant of the said land, and every such
instrument shall thereupon be held to be duly registered, and the Eegistrar-
G-eneral sh^ll file such receipt and such instrument in his office ; and, upon
the registration of the grant of such land, the Eegistrar-Oeneral shall enter
thereon a memorial of such dealing, and shall indorse such instrument with
the memorandum of registration as prescribed on the registration of instru-
ments generally. (Z. 80 ; T. 62.98 ; V. 66-67.)

Deed-poUby 113, Every deed-poll by virtue of which any land under the provisions

of^^d^ruk- of this Act or of any of the Keal Property Acts, shall have been, or shall

Lwad?*^*' hereafter be, vested in the promoters of an undertaking as provided by the

Clauses Aotf " Lands Clauses Consolidation Act," or any amendment thereof, shall have

the same effect as a transfer executed by the registered proprietor of the

land comprised in such deed-poll. (Mudgway v. Davy and Buick, 1 ; re

S. a Fafmer, 71.)



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SOUTH ATTSTEALIAN EEAL PEOPEETT ACT. 199

114. The Begistrar-General shall, upon any such deed-poll being Mode of
lodged with him by the promoters of the undertaking, register the same SSJS?'^-
opon the original certificate in like manner as transfers are registered, and poU
shall require the registered proprietor, or any depositee, mortgagee, encum-
brancee, or other person having the custooy or control of the same, to
deliyer up the duplicate certificate for the purpose of having an entry of
the deed-poll made thereon ; and the Eegistrar- General shall, after such
registration, cancel the original certificate, and when produced to him, the
duplicate thereof, and shall issue a certificate of the land comprised in the
deed-poll to the promoters of the undertaking, and a new certificate for the
balance of the land comprised in the certificate to the proprietor thereof :
Provided that all expenses of and incidental to obtaining such certificates PtoyUo
shall be borne by the promoters of the undertaking. {Mudgway v. Davy and
Buick, 1 ; re Oraig, 76. Z. 42.)

115* Nothing herein contained shall lessen, or, except as expressly Not to
hereinbefore provided, alter the effect of any deed-poll heretofore or here- S?^.pon
after executed, and no transferee from a registered proprietor under a ^^'J^J^
transfer subsequent in date to such deed-poll shall be entitled to any estate executed ^
or interest in the lands mentioned in such deed-poll, nor to any priority
over the promoters executing the same. {8ee note to Sec. 118, ante,)

PART XI.

Leases and Subbendebs.

116. When any land is intended to be leased for a life or lives, or for T^^ ^®^
any term of years exceeding one year, the registered proprietor shall, or for ***
any less term may, execute a lease in the form of the Eighth Schedule gjjj^^
hereto. {Ex parte Bondy 89; Smith v. Davy, 135; Etterehanh v. The Queen,

163 ; Buekett v. Knobbe, 167, 168. Z. 86 ; Q. 77-11 ; V. 66-76.)

117. Every such lease shall, for description of the land intended to be Oontenta of
dealt with, refer to the certificate of the land, or shidl give such other ^**^
description as may be necessary to identify the land, and a right for or
covenant by the lessee to purchase the land therein described may be stipu-
lated in such lease, and shall be binding. (Smith v. Davy, 136.)

118. No lease of mortgaged or encumbered land shall be valid and ^•J?^'*^
binding against any mortgagee or encumbrancee of the land uoless such oooBenting^'
mortgagee or encumbrancee shall have consented in writing to such lease J^^^^JS!*
prior to the same being registered. (Bank New South Wales v. Balmer, 108 ; bJanceee '
Formby v. Adelaide Corporation, 199. T. 62-117.)

119. Every registered dealing with land shall be subject to any prior ^^•^ ^^
unregistered lease or any agreement for lease or for letting for a term not SeS/nSbe
exceeding one year to a tenant in actual possession thereunder : Provided "k*"*«^«^
that no right or covenant to purchase the freehold contained in any such
unregistered lease or agreement, nor any right or covenant for renewal of

such lease or agreement shall be valid as against any subsequent purchaser
of the reversion, lessee, mortgagee, or encumbrancee unless such lease or
agreement be registered or protected by caveat.

120. Whenever any registered lease is intended to be surrendered, and Jj^ "»y
the surrender thereof is effected otherwise than by operation of law, or as dered by "
hereinafter provided on insolvency or statutory assignment, there shall be meli?^
indorsed upon such lease, or on the duplicate thereof, the word " Surren- !•"»• with
dered/' with the date of such surrender, and such indorsement shall be ^^^ii^r^



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200 SOUTH AUSTBAMAN EBAL PEOPEETT ACT.

signed bj the lessee and bj the lessor, and sball be attested by a witness,
and the Eegistrar-General shall thereupon enter in the Eegister Book a
memorial recording the date of such surrender, and shall likewise indorse
upon the lease a memorandum recording the fact of such entry having been
so made in the Eegister Book. {Kickham v. The Queen, 47 ; Kearton v.
Eichardson, 125. N. 50 ; Z. 89; Q. 61-84. ; T. 62-48 ; V. 66-82.)

OefJlSamay VXL ^ here a lessee shall have delivered to the lessor, or his agent,
entOTiur- the duplicate of the lease, accompanied by some writing signed by the
^^ lessee evidencing his intention to give up possession of the land comprised

in such lease, the Eegistrar-General may, upon application by the lessor,
and production of such evidence as he may require that tne lessee has
abandoned the occupation of the land comprised iii the lease, make an entry
in the Eegister Book of the surrender of such lease, and also endorse on the
lease a memorandum recording the fact of such entry having been so made
in the Eegister Book.

™^Qf 122. Upon every entry made in the Eegister Book, in pursuance of

surrender either of the two preceding sections, the estate or interest of the lessee in

the land shall revest in the lessor, and production of the lease or duplicate

bearing such indorsement or memorandum shall be sufficient evidence that

the lease has been so surrendered.

Surrender 123* No lease mortgaged or encumbered, or of land mortgaged or

Tu^wtt?* encumbered, prior or subsequently to the registration of such lease, shall be
mortgage or bq Surrendered without the consent thereto in writing of the mortgagee or
un er- ease ^ugmnij^ancee, and every surrender of a lease, whether by operation of law,
by act of parties, or pursuant to the provisions hereinafter contained on
insolvency or statutory assignment, shall be subject to any registered under-
lease, or to any unregistered under-lease or agreement for under-lease or
under-letting for a term not exceeding one year to a tenant in actual pos-
session thereunder.

Coyenanta to 124. In every lease there shall be implied the following covenants by
^JJHySeiM^ ^^ lessee with the lessor, that is to say — (1) That he will pay the rent
against the thereby reserved at the times therein mentioned, and all rates and taxes
***** which may be payable in respect of the demised property, during the

continuance of the lease. (Fannan v. Pannan, 18 ; Buchnall v. Beid, 145 ;

re O' Connelly 169.) (2) That he will keep and yield up the demised property

in good and tenan table repair, reasonable wear and tear excepted. (N. 51 ;

Z. 90, 156 ; Q. 61-75, 70 ; T. 62-49 ; V. 66-76, 77, 85-28.)

kolSiin^* 125- In every lease there shall also be implied the following powers in
leMor the lessor, that is to say — (1) Power to distrain according to law : (2) That

he may, by himself or his agents, at all reasonable times, enter upon the
demised property, and view the state of repair thereof, and may serve upon
the lessee, or leave at his last or usual place of abode in the province, or
upon the demised property, a notice in writing of any defect, requiring him
within a reasonable time, to be therein prescribed, to repair the same.
{JelUcoe V. Wellington Loan Company , 50 ; Sanders v. Wadhamy 88 ; Bo89
V McNeily US; Mart v. Stratton, 119. N. 51, 52 ; Z. 91 ; Q. 61-71 ; T. 62-
50.) (3) That in case the rent, or any part thereof, shall be in arrear for
the space of three months, although no demand shall have been made thereof,
or in case default shall be made in the fulfilment of any covenant whether
expressed or implied in such lease, on the part of the lessee, and shall be
continued for the space of three months, or in case the repairs required by



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SOUTH ATJSTBALIAN REAL PEOPEETT ACT. 201

Bach notice at aforesaid shall not have been completed within the time
therein specified, it shall be lawful for the lessor to re-enter upon and take
possession of the leased premises. (Jellicoe v. Wellington Loan Company^
60 ; Boi8Y. McNeil, 118 ; Rart v. Stratton, 119; Bucknall v. Eeid, 145. Z.
92 ; Q. 61-71.)

126* The Begistrar-General, upon proof to his satisfaction of re-entry Begiatrar.
by the lessor, in manner prescribed by the lease, or under the power in the ^ote^pitiou-
third subsection of the last preceding section provided for, or of recovery of U" of ro-
possession by a lessor, by any proceeding in law, shall note the same by R^tor
entry in the Register Book, and the estate of the lessee in such land shall ^^^
thereupon determine, but without releasing him from his liability in respect
of the breach of any covenant in such lease expressed or implied, and the
Begisfcrar-G-eneral shidl cancel such lease if delivered up to him for that
purpose.

127* Notwithstanding sectioD 8, sub-division 2, of Act No. 225 of 1881, Le«8em»j
in cases where the time for payment of the succession duty has not yet ^thSu^^'*^
arrived, it shall be lawful for the Registrar- General to register any lease time for
executed by any executor, administrator, or public trustee, but the payment suocessioa
of such duty shall thereupon become a charge upon the said lease as well as J^^^ °**'
the said land.

PART XII.

MOBTGAGES, EkCUMBBANCSS, AVD DiSCHABGES.

128. Whenever any land is intended to be charged or made security in i-andi. how
favour of any person the registered proprietor shall execute a mortgage in S^^SSL.
the form of the Ninth Schedule hereto ; and whenever any land is intended ***"®^

to be charged with, or made security for, the payment of an annuity, rent- Ninth and
charge, or sum of money, in favour of any person, the registered proprietor gJhSoie,
shall execute an encumbrance in the form of the Tenth Schedule hereto.
(Be Skerrett, 177a. Z. 93 ; Q. 61-3, 61-60 ; V. 66-83.)

129. Every such instrument shall, for description of the land intended Contento of
to be dealt with, refer to the certificate of the land, or shall give such other ScuS^* ^'
description as may be necessary to identify the same, and shall contain an trance
accurate statement of the estate or interest intended to be mortgaged or
encumbered, and shall also contain or have endorsed thereon a memorandum

of all leases, mortgages and encumbrances (if any) affecting such land.
{Chomleyy, Mrebrace, 21; Bumey. Stewart, 2S ; Barker v. Weld, 31 ; Beg,
V. Tideman, 99 ; Boss v. McNeil, 118 ; re Furgusson, 128 ; Manning v. Cross-
man, 127.)

130. In every mortgage and encumbrance there shall be implied a Covenantto
covenant by the mortgagor or encumbrancer with the mortgagee or encum- ©ve^^^* "*
brancee that he will repair and keep in repair all buildings and other mortgage
improvements erected and made upon the mortgaged or encumbered land,

and that the mortgagee or encumbrancee may, at all convenient times, until
the mortgage or encumbrance be redeemed, be at liberty, with or without
surveyors or others, to enter into and upon such land to view and inspect
the state of repair of such buildings and improvements. {McCartney v.
Eesterson, 17. N. 62-^9, 61 ; Z. 95 ; Q. 61-71 ; 61-69 ; T. 62-62 ; V. 66-90.) Subsequent

mortgagees

131. In case the money secured by any mortgage or encumbrance bJaJSw^'
shall be due, and the mortgagee or encumbrancee shall require payment of n»»y redeem
the same, it shall be lawful for any other mortgagee or encumbrancee of the gJ^,°5to^



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202 SOUTH ATJSTBALIAN EEAL PEOPEETT ACT.

same land to tender and pay to the mortgagee or encombrancee requiring
such payment, the money due upon his security, and the mortgagee or
encumbrancee making such payment shall be entitled to a transfer of the
estate and interest of the mortgagee or encumbrancee requiring such
payment.

Md^eSSmn- 132, Erery mortgage and encumbrance under this Act shall hare

bnno« not effect as a security, but shall not operate as a transfer of the land thereby

tetnafOT ^ charged, and in case default be maae in the payment ef the principal sum,

interest, annuity, or rent charge, or any part thereof thereby secured, or in

Procedure the obser7ance of any coyenant therein expressed or implied, and such

deSSt*'^ default be continued for the space of one month, or for such other period of

time as may therein for that purpose be expressly limited, the mortgagee or

encumbrancee may give to the mortgagor or encumbrancer notice in writing

to pay the money then due or owing on such mortgage or encumbrance, or

to observe the coyenants therein expressed or implied, as the case may be,

and that sale will be effected if such default be continued, or may leave such

notice on the mortgaged or encumbered land, or at the usual or last known

place of abode in South Australia of the mortgagor or encumbrancer.

{UAlbrdyhill v. B'AlhrdyUll, 82 ; Otago Barbour Board t. Spedding, 165.

T. 62-49.)

Poweroftaie 133. If such default be continued for the further space of one month
from the date of such notice, or from such other period as may in such
instrument be for that purpose limited, the mortgagee or encumbrancee is
hereby authorised and empowered to sell the land so mortgaged or
encumbered, or any part thereof, and all the estate and interest therein of
the mortgagor or encumbrancer, and either altogether or in lots, by public
auction or by private contract, or by both such modes of sale, and subject to
such conditions as he may think fit, and to buy in and resell the same without
being liable for any loss occasioned hereby, and to make and execute all
such instruments as shall be necessary for carrying the sale thereof into
effect. (Bume v. Stewart, 28 ; Buckett v. Knohhe, 167 ; Bos9, v. Victoria
Bermanent Building Society, 180. N. 56 ; Z. 98, 99 ; Q. 61, 57 ; T. 62-54 ;
V. 85-44.)

JJ^rtfwe'i 134, All sales contracts, matters, and things, authorised by the last
dtft?£rge preceding section shall be as valid and effectual as if the mortgagor or
porchaaer eucumbrancor had made done or executed the same, and the receipt or
receipts in writing of the mortgagee or encumbrancee shall be a sufficient
discharge to the purchaser of the land, or any portion thereof, for so much
of his purchase-money as may be thereby expressed to be received ; and no
such purchaser shall be answerable for the loss, misapplication, or non-
application, or be obliged to see to the application of the purchase-money
by him paid, nor shall he be concerned to inquire as to the fact of any
default, or notice having been made or given, as aforesaid. (N. 59 ; Z. 100 ;
Q. 61, 57.)

tiSS'olF'rol i-35' The purchase-money to arise from the sale of any such land shall be

cmSs* ^"*" applied : First — In payment of the expenses occasioned by such sale : Secondly
— In payment of the moneys which may then be due or owing to the
mortgagee or encumbrancee : Thirdly — In payment of subsequent mortgagee
or encumbrances, if any, in the order of their priority ; and the surplus, if
any, shall be paid to the mortgagor or encumbrancer, as the case may be.
{McCartney v. Katerson, 17. N. 56 ; Q. 61-59 j T. 62-54.)



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SOUTH ATJSTEALIAN EEAL PEOPEETT ACT. 208

136. Upon the registration of any transfer executed by a mortgagee or B^giitnr.
encumbrancee, for the purpose of giving effect to any such sale as aroresaid, 2?S*3i^to
the estate or interest of the mortgagor or encumbrancer therein described »!• by mort-
as transferred, shall pass to and vest in the transferee, freed and discharged fXbnnoM*
from all liability on account of such mortgage or encumbrance, or of any
mortgage or encumbrance registered subsequent thereto, and the transferee

shall be deemed the registered proprietor of the said estate or interest. (Se
Thompson and Ghipps, 27.)

137. The mortgagee or encumbrancee, upon default in payment in case of
of the principal sum, interest, annuity, or rent-charge, secured by any JJj^gee
mortgage or encumbrance, or any part thereof, may enter into possession or enoum-
of the mortgaged or encumbered land and receive the rents and ent?rSd^^

Cifits thereof or may distrain upon the occupier or tenant of ^^^ JjJ^n or*m»
d under the power hereinafter contained, or may from time to time S^^idn °^^
let the said land for any term not exceeding one year, or may bring
an action for recovery of the land either before or after entering into Or may let
receipt of the rents and profits, or making any distress as aforesaid, and
either before or after anjr sale of the land shall be effected under the power Pj^^JL,
of sale given or implied in his mortgage or encumbrance. (Burne v. Stewart, tor reooTe^
28; Jellicoe v. Wellington Loan Company, 50; ex parte Smart, 80; Boss v. **'^^
JtPl^eill, 118 ; Hart v. Siratton, 119 ; Grey v. Watson, 162. Q. 61-67.)

138. Besides his remedy against the mortgagor or encumbrancer, Mortgagee
every mortgagee or encumbrancee shall be entitled aiter the principal sum, Srw^Smay
interest, annuity, or rent-charge shall have been in arrear for twenty-one dittrwn on
days, and after seven days shall have elapsed from the date of application for <^apie?for
the payment thereof to the occupier or tenant, to enter upon the mortgaged l^^^g^
or encumbered land, and distrain upon the goods ana chattels of such the amount



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