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

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occupier or tenant for such arrears to an amount not exceeding the rent Jy^ndi^"*
then due from such occupier or tenant to the mortgagor or encumbrancer, tenant or
and to dispose of the goods and chattels so distrained upon in like manner ***^°p*®'

as landlords may do in ordinary distresses for rent, and out of the proceeds ^^ ^^^^
to retain the moneys distrained for, and all costs and expenses occasioned by habiefor
such distress and sale ; and any amount paid by the occupier or tenant to £JJ^e'""
the mortgagee or encumbrancee, or realised by distress as aforesaid, shall be amoniit of
deemed pro tanto a satisfaction of the said rent. {JelUcoe v. Wellington 5?ril,JbyWm
Loan Company, 50 ; Boss v. M'Neil, 118 ; Hart v. Stratton, 119. N. 58 ; Z.
97; Q. 61-60, 61 ; T. 62-57, 57; V. 67-2.)

139* Any mortgagee or encumbrancee of leasehold land, or any person Mortgagee
claiming any such land as a purchaser or otherwise, from or under such gJ^®„*J^f
mortgagee or encumbrancee, shall, after entering into possession of the land, leasehold
or receiving the rents and profits thereof, during such possession or receipt, JSiJSSf<i°iJ
and to the extent of any rents and profits which may be received by him, rent and
become and be subject and liable to the lessor of the land, or the person for SJmw'uaWe
the time being entitled to the lessor's estate or interest therein, or entitled ^ •ocount
to receive the rent reserved to such lessor to the same extent as the lessee
was subject and liable prior to such mortgagee, encumbrancee, or other
person entering into the possession of the land, or the rents or profits
thereof. {Jones v. Sellick, 78 ; Hart v. Stratton, 119 ; Coker v. Spence, 5.
N. 13, 59 ; Z. 113 ; Q. 61-62 ; T. 62-58 ; V. 85-23, 86-91.) Mortgagee

140. When default has been made for six months in the payment of S?e1?SSir-
the principal or interest secured by any mortgage, the mortgagee may make ^^^^J^J/^J^
application^ in writing, to the Begistrar- General for an order for foreclosure, foi^ioaore

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Such application shall state that such default has been made as aforesaid,

and that the land mortgaged has been o:ffered for sale at public auction by a

licensed auctioneer, after notice given to the mortgagor, as in this Act or by

the mortgage provided ; that the amount of the highest bid at such sale wslb

not sufficient to satisfy the money secured by such mortgage, together v^rith

the expenses occasioned by the attempted sale; and that notice in writing of

the intention of the mortgagee to make such application has been served on

the mortgagor, by being given to him or by being left on the mortgaged land,

or by the same being sent through the post office by a registered letter

directed to him at his address appearing in the Eegister Book ; and also that

a like notice of such intention has been served on every person appearing

by the Kegister Book to have any estate or interest in the mortgaged land,

subsequently to such mortgage, by being given to him or sent through the

AppUoation post offico by a registered letter directed to him at his address appearing in

pi^edby ™" *^® Eegister Book ; and such application shall be accompanied by a certificate

certiflcato of the Ucenscd auctioneer by whom such land was put up for sale, and such

ofaucuoneer ^^.^^^j, p^QQf of the matters stated by the applicant as the Eegistrar- General

may require ; and the statements made in such application shall be verified

by declaration. (N. 114 ; Q. 61-60 ; V. 66-98.)

KegiBtrar- 141, The Eegistrar- General shall cause notice to be published for four

offOThuidfor consecutive weeks in the Oovemment Qazeite, o:ffering the land for sale; and

^® shall in such case limit and appoint a time, not less than one month from the

date of the first publication m such Oazette, upon or after which the Eegis-

orSrfor* trar-Q^uoral may issue to the applicant an order for foreclosure, unless in

foreclosure the interval a su&cient amount has been realised by the sale of the land to

satisfy the principal and interest moneys due, and all expenses occasioned

by the attempted sale and by the proceedings for foreclosure. (Z. 103.)

Effect of 142. Every such order for foreclosure shall be under the hand of the

fJi^oirare Eegistrar-Goueral, and be entered in the Eegister Book, and shall when so
entered have the efiect of vesting in the mortgagee all the estate and interest
of the mortgagor in the land mentioned in such order, free from all right
and equity of redemption on the part of the mortgagor, or of any person
claiming through or under him subsequently to the mortgage so foreclosed,
and upon such entry the mortgagee shall be deemed the registered proprietor
of the said estate and interest. (T. 62-121.)

Disobarge of 143. TTpon the production of any duplicate mortgage or encumbrance,
SlinSfttm- together with a receipt or memorandum, signed by the mortgagee or encum-
brancee brauceo, or by one or more of the mortgagees or encumbrancees where the
mortgage or encumbrance shall be held on a joint account, and attested by
a witness, discharging the land, or any part thereof, from the whole or part
of the moneys or annuity secured, the Eegistrar-General shall make an
entry in the Eegister Book, and on the mortgage or encumbrance, noting
that such mortgage or encumbrance is discharged wholly or partially, or
that part of the land is wholly or partiaUy discharged as aforesaid, as the
case may require, and upon such entry being so made in the Eegister Book,
the land, or the said part thereof, shall cease to be subiect to or liable for
the said moneys, or annuity, or the part thereof noted in such entry as
discharged, as the case may be ; and the Eegistrar-General shall make a
similar entry on the duplicate certificate, or other instrument of title when
produced to him for that purpose. (N. 61, 63 ; Z. 108 ; Q. 61, 63, 64; T.
62,69-61; V. 66, 100.)

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144. After a mortgage or encumbrance shall Lave been partially Disobarge
discbarged pursuant to a receipt or memorandum indorsed thereon, any JJ p^H^SSf*'
subsequent partial discharge shall be by a separate instrument. diacharge

145. Upon the proof of the death of the annuitant or of the occurrence Entr^ of
of the event or circumstance ui)on which in accordance with the provisions JJ^jJlJSiJJ^
of any encumbrance, the annuity or sum of money thereby secured shall

cease to be payable ; and that all arrears of the said annuity or money have
been paid, satisfied, or discharged, the Eegistrar-General shall make an entry
in the Eegister Book, and on the encumbrance, noting that such annuity or
sum of money is satisfied and discharged, and shall cancel the encumbrance ;
and upon such entry being made in the Eegister Book, the land comprised
in the encumbrance shall cease to be subject to or liable for such annuity or
sum of money ; and the Eegistrar-G-eneral shall make a similar entry on the
duplicate certificate, or other instrument of title of the encumbered land,
and also on the duplicate encumbrance, when respectively produced to him
for that purpose. (Z. 110 ; T. 62-60 ; Y. 66-100, 101.)

146. In case any mortgagee shall be absent from the province, and Mortgage
there be no person in the province authorised to give a receipt to the S^pSd"?©^
mortgagor for the mortgage money at or after the date appointed for the ''^•JJ^"' ^
redemption of the mortgage, it shall be lawful for the Treasurer to receive b« abSSr
such mortgage money, vrith all arrears of interest then due thereon, in trust J^^^*
for the mortgagee or other person entitled thereto, and thereupon the
interest upon such mortgage shall cease to run or accrue. (JEx parte UToisell,

177. N. 63 ; Z. 189; Q. 61-6i ; T. 62-61, 74-28, 29.)

147* The Eegistrar- General shall, upon production of the receipt of And the
the Treasurer for the amount of the said mortgage money and interest, SSm^mich
make an entry in the Eegister Book, and on the mortgage in his office, ^ *^^**"
discharging the mortgage, and stating the day and hour on which such entry ** ^
is made, and such entry shall be a valid discharge of such mortgage, and
shaD have the same effect as the registration of a discharge signed by the
mortgagee ; and the Eegistrar-General shall make a similar indorsement on
the duplicate certificate, or other instrument of title, and also on the dupli-
cate mortgage whenever the same shall be respectively produced to him for
that purpose.

148* Where any mortgagor shall deliver to the Eegistrar-General the Begiatrar-
duplicate of his mortgage, and shall prove to the satisfaction of the Eegistrar- SSJ^^^
General that all principal money and interest due in respect of the mortgage ohmrge of
has been paid to the person entitled to receive the same, and that such ^irta!ao«Ma
person is dead, or absent from the piovince, the Eegistrar-General may,
notwithstanding the duplicate mortgage shall not contain any discharge of
the mortgage debt, make an entry in the Eegister Book and on the duplicate
mortgage, discharging the mortgage, which entry shall have the same effect
as the registration of a discharge of the mortgage signed by the mortgagee.

149. An equitable mortgage of land may be created by deposit of the Equitable
certificate or other instrument of title, aud such deposit shall have the same SafS^*
effect as a deposit by way of equitable mortgage of the title deeds of land created
not under the provisions of this Act. (Pate tell v. Maunsell, 113 ; Christie
and another v. Powles, 129; Ifeil v. Adams, 130; re Nathan, 131 ; Wildash
T. Butohison, 182. Q. 77-30.)

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lease, and


Effect of

implied in
transfer of

ot mort-
gage!, &o.

Effect and
of extension

of lease not
to bind non-
or enonm-

Extension of
first mort-
gage not to
bind other
without con-

160* A registered mortgage, lease, or encumbrance may be transferred
to any person by a transfer as aforesaid, or by an instrument in the form of
the Eleventh Schedule hereto, which instrument may be indorsed upon the
duplicate mortgage, lease, or encumbrance, but only one such transfer shall
be made by indorsement.

151. Upon such transfer or other instrument being registered, the
estate or interest of the transferor, as set forth in the instrument transferred,
with all rights, powers, and priyileges thereto belonging or appertaining,
including the right to sue upon and recoyer in his own name any debt, sum
of money, annuity, or damages, under such transferred instrument, shall
pass to the transferee, and such transferee shall, while he remains the
registered proprietor of such estate or interest, be subject to and liable for
all and eyery the same requirements and liabilities to which he would have
been subject and liable if named in the transferred instrument originally as
mortgagee, lessee, or encumbrancee.

162' In every transfer of a lease there shall be implied a covenant by
the transferee witn the transferor, thenceforth to pay the rent by the lease
reserved, and to perform and observe all the covenants in the lease con-
tained, or by this Act declared to be implied therein on the part of the
lessee to be performed and observed, and to indemnify and keep harmless
the transferor against all actions, claims, and expenses in respect of the
non-payment of such rent, or the breach or non-observance of such cove-
nants or any of them. (N. 61, 107, 52 ; Z. 82, 84 ; Q. 61-65, 70 ; T. 62-
49, 63,64; V. 66-79.)



153* Any mortgage, encumbrance, or lease may be extended at any
time by endorsing thereon the word " extended," which endorsement shall
be signed by the respective parties to such mortgage, encumbrance, or lease,
or their transferees, and attested. {Chomley v. Firehrace, 21 ; Burne v.
Stewart, 28 ; Barker v. Weld, 81 ; Reg. v. Tideman, 99 ; Boss v. McNeill,
118 ; Manning v. Grossman, 127. T. 86-25.)

154' Such endorsement shall, when registered, have the effect of an
extension for one year of the term limited by the mortgage, encumbrance,
or lease, or by any previous extension, subject to the same terms and con-
ditions, but words may be added extending the term for any other period
and varying or altering the said terms and conditions ; and every such
extension shall have the same effect as if expressed in the original instru-
ment, and the Eegistrar-G^neral shall, upon production thereof to him,
enter a memorial oi such extension on the original certificate and on the
original instrument filed in his office : Provided that no extension of a lease
of land mortgaged or encumbered shall be binding upon the mortgagee or
encumbrancee unless he shall have consented thereto in writing : rrovided
also that no extension of any mortgage of land subject to subsequent
mortgage or mortgages shall be binding upon the other mortgagee or
mortgagees, unless such other mortgagee or mortgagees shall have consented
thereto in writing. (Burne v. Stewart, 28 ; re Wm, Biggs, 69 ; Jones v.
Sellick, 78 ; Beg. v. IHdeman, 99 ; Van JDamme v. Bloxam, 105 ; JDelaney v.
Sandhurst Building Society, 179. N. 118 ; Z. 190 ; T. 86-25.)

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PowKBB OP Attorney.

155. Any person maj before, as well as after, becoming the registered Power of
proprietor of any land under the proyisions of this Act, by power of •**®"»^
attorney, authorise any person to act for him, in making applications to
bring any land under the proyisions of this Act, and to execute all or any
instruments that may be necessary for giving effect to any dealing with any

land, and for that purpose may, if he think fit use the form in the Thirteenth Thirteenth
Schedule hereto. (N. 74, 69 ; Z. 150 ; Q. 61-107, 62-104i ; T. 62-70 ; V. ^^"^
66-13, 114.)

156. A duplicate or an attested copy of such power of attorney shall ]^^2I** **'
be deposited witn the Begistrar- General, who shall compare the same with copy to be
the original, and shall file such duplicate or attested copy in his office, and ^p<>"*^
note thereon the date and hour of its deposit with him, and shall, wheneyer
registering any dealing under such power of attorney, enter on the original
certificate of the land dealt with a note of the deposit of such duplicate or

copy. (See note to See, 155, ante. Z. 153.)

157* The grantor of anjr such power of attorney may revoke the same ^ooMion
by executing an instrument in the form of the Eourteenth Schedule hereto ; Ltomey ^
and the Begistrar- General shall, except in any case where a registration poQ,teenth
abstract is outstanding, enter a note of such revocation, when produced to Schedule
him, and the day and hour of its production, on the duplicate or copy of the
power of attorney filed in his office ; and from and after the date of such
entry the Registrar-General shall not give effect to any application or other
instrument executed pursuant to such power of attorney. (N. 74 ; Q. 61-
108 ; T. 62-76.)

158. All powers of attorney heretofore given containing powers to Power of
make and execute any of the applications and instruments above enumerated, h«ratof?re
shall be as valid and may be acted upon and revoked in the same manner as si^en

if given under this Act.

159. The Eegistrar-General shall, upon proof to his satisfaction of the J^^ ©J
death of any grantor of a power of attorney, make an entry of such death grantor
upon the duplicate or copy of the power of attorney filed in his office.

160. All instruments executed under any power of attorney before iMtrMenti
the entry of the revocation thereof, or of the death of the grantor as herein- ^^n entxj
before provided, shall be valid notwithstanding such revocation or death. ©r dwJffto"



Tbxtsts and Tbansmissions.

161. Whenever any grant from the Crown shall contain the particulars Tnuts oon-
of any trust for public purposes, every certificate issued in respect of the ^^JfftSm
same land, or any part thereof, while such trusts subsist and affect such land, {heCrown
shall contain the like particulars of trust as were contained in the original ^ned in
grant. (Outhbertson v. Swann, 144 ; ex parte Pennington^ 217. N. 66; Z. oertifi«ite »■
122 ; Q. 61-79, 80 ; T. 62-66, V. 66-88.) ^"t*^

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Nopftrtioa. 162. The Eegistrar- General shall not, except as aforesaid, make any

tobe^roSS entry in the Eegister Book of the particulars of any trust, nor shall any
u ^guter instrument be registered under this Act, which declares or contains trusts



relating to land under the provisions of this Act, but any such instrument,
i^ or a duplicate or attested copy thereof, may be deposited with the Eegistrar-
Oeneral for safe custody and reference, and such instrument may be
deposited in the General Eegistry Office pursuant to Act No. 22 of 1853,
or any other Act relating to the deposit of deeds in the Eegistry Office, and
may include as well land under the provisions of this Act, as land which is
B«ciatered not under the provisions hereof : Provided that nothing herein contained
miyreferto ^^^^ ^TeYQnt the registration of any instrument which would otherwise be
depotited valid in which a reference may be made to the iustrument so deposited
toSwSSJ' as aforesaid ; nor shall such reference operate as notice of the particulars of
enoenotto the trusts declared or contained in the deposited instrument, but in the
nodce of* absence of caveat the registered proprietor shall, for the purpose of sale,
^'^^ mortgage, or contract for valuable consideration be deemed to be the
absolute proprietor of such land freed from the said trusts. {Fatchell v,
MqumcU, 113; re Wm. Wadham, 114. V. 61, 17.)

Sj^rtl **' ^®^' ^P^^ *^® transfer of any estate or interest in land, to two or
"nosorri. moro porsons, as joint proprietors, intended to be held by them as trustees,
l^I^^a^ it shall be lawful for the transferor or transferees to insert in the transfer
the words " no survivorship "; and the Eegistrar-G^eneral shall in such case
include such words in the memorial of such instrument to be entered by him
in the Eegister Book; and shall also enter the same words in some conspicuous
place upon any certificate issued to such joint proprietors, pursuant to such
transfer. (Z. 123, 125 ; Q. 61-80 ; T. 62-68 ; V. 66-16, 45.)

Tnutoet 164* Any two or more. persons registered as joint proprietors of any

S» mwUon" estate, or interest in land held by them as trustees, may, by writing under
ofti^ their hands, authorise the Eegistrar- General to enter tne words " no
^^ survivorship " upon the original certificate, or other instrument of title,

evidencing their title to such estate or interest, in the Eegister Book, or
filed in his office, and also upon the duplicate of such instrument.

BffMt of 165. After any such entry as in the last two sections mentioned has

radiiiuer- \yQQj^ made and signed by the Eegistrar- General in the Eegister Book, it
shall not be lawful for any less number of joint proprietors than the number
then registered to transfer or otherwise deal with tne said estate, or interest,
without obtaining an order of the Court : Provided that, if it be intended
not to apply the said restriction until the trustees registered as such
proprietors be reduced below a certain specified number, words indicative of
such intention may be entered in like manner, and in that case the power of
disposition by survivors shall continue until the number be so reduc^.

2jjJ*™J 166. The Court may, before making any such order as aforesaid,

to be pub-** direct notice of the intention to apply for such order to be given, either bv
oM« fa*^**" public advertisement or otherwise, and may appoint a period within which
mftde any person interested may show cause why sucn order should not be made.

(^Featherstmie v. Manlon, 4 ; Saunders v. Cabot, 16 ; Chomley v. Firehrace^

21 ; Coleman and Clark v. Biriay 46 ; Van Damme v. Bloxham^ 105 ;

Xirkham v. Julien, 109 ; Franklin v. Ind, 166 ; Ota^o Harbour Board v.

Speddingy 165; Shackell v. Lindsay, 174; Boss v. Victoria Permanent

Building Society, 180.)

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167. The Court may in such order give directions for the transfer of Court may
such estate, or interest, to any new proprietor or proprietors, solely or SJJJ^g
jointly, with, or in the place of, any existing proprietor or proprietors, or interested
may make such order in the premises as may be just for the protection of

the persons beneficially interested in such estate, or interest, or in the
proceeds thereof ; and upon any such order being deposited with the
Registrar-General, he shall make such entries and perform such acts as in
accordance with the provisions of this Act may be necessary for the purpose
of giving efEdct to such order. (Featherstone v. Hanlon, 4i ; Mann v.
Bohertson, 191. N. 115-1, 118 ; Z. 189, 190 ; T. 62-126 ; V. 66-145.)

168. Nothing hereinbefore contained shall prevent the surviving or surdTors
remaining trustee or trustees from exercising all the powers and duties of^*fg"®p®p.
trust other than in regard to transfers and dealings under this Act, nor form duties
from so transferring the land as to give effect to any valid appointment of a to ^ ^^
new trustee or new trustees. And so far as shall be necessary to ascertain trustees
the sufficiency of any such appointment, it shall be lawful for the Registrar- fEegistrar-
General to refer to the provisions of any instrument relating to the trust, refertotrust
notwithstanding the same be not registered. (N. 67.) instrument)

169. Any person who shall, without his consent, have been registered J^^^j^^^
as proprietor of any estate or interest in land, or to whom any such estate d^w ^
OP interest shall have been transferred, bequeathed, or devised, may execute a otherwise
deed or other instrument of disclaimer of such estate or interest ; and if

Buch person shall have been registered as proprietor, the Eegistrar- General
shall upon production of such deed or other instrument of disclaimer, cancel,
alter, or correct the Begister Book, certificate or other instrument of title,
or make such other entry in the Begister Book, and upon the certificate or
other instrument of title, as shall give effect to such disclaimer : Provided that
no person so disclaiming shall be released from any trust or other liability in
case he shall have acted in the trust, or by his own act incurred such

170. Upon the registered proprietor of any estate or interest in land ^^Jy"'
becoming insolvent or making a statutory assignment, the Official Eeceiver insoWencj
(if no trustee has been appointed) or the trustee of such insolvent or JIsf^eSF
assignor shall be entitled to oe registered as proprietor of such estate or
interest. (Pannan v. Fannan, 18. N. 115 ; Q. 77-31 ; T. 02-3, 86-19 ;

V. 85-60.)

171. The Eegistrar- General shall in any such case, upon being Tnmsmta-
f umished with evidence of the insolvency and the non-appointment of a ^^1^ Si
trustee, or of the appointment of or assignment to the trustee, accompanied |j|j*®'
by an application m writing, under the hand of the Official Eeceiver or
trustee, to be registered as proprietor of the estate or interest to be therein
specified and described, shall enter in the Eegister Book a memorandum
notifying the insolvency or the appointment of or assi^^nment to the trustee,

as the case may require, and upon such entry being made the Official
Eeceiver or trustee shall be the registered proprietor of the estate or
interest of the insolvent or assignor in such land. (Fanncm v. Fannan, 18.
N. 76 ; Q. 61-86 ; T. 62-76. See also note to Sec. 71, ss 3, ante.)

172. If any such statutory assignment shall afterwards be declared ?'JJ^^°^
fraudulent and void by the Court of Insolvency, and the assignor shall, wsl^mcnt
thereupon be adjudged insolvent, the Eegistrar- General shall, upon being J®?]^
furnished with evidence thereof, and of the appointment or non-appointment


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ment of

sabjeot to
mortgage or

or encam-

Online LibraryAustraliaThe land transfer laws of Australasia: being the full text with side notes ... → online text (page 39 of 83)