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

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after such further interval, notification, or advertisement as they may deem
fit. (Q. 61-21 ; S. 38.)

22. Any person having or claiming any interest in any land so advertised Pwtiee
as aforesaid, or the attorney of any such person, may, within the time by iSi^^ier
any direction of the Lands Titles Commissioners for that purpose limited, <»▼«»*
lodge a caveat with the Recorder of Titles in the Form B of the Schedule
hereto, forbidding the bringing of such land under the provisions of this

Act, and every such caveat shall particularise the estate, interest, lien, or
charge claimed by the person lodging the same. (N. 21 ; Q. 61-23 ; S. 39 ;
V. 118.)

23. The Recorder of Titles, upon receipt of such caveat within the if oaTMt be
time limited as aforesaid, shall notify the same to such applicant proprietor, {^n^^e
and shall suspend further action in the matter, and the lands in respect of '^^* p"^
which such caveat may have been lodged, shall not be brought under the »t»ye3**
provisions of this Act, until such caveat shall have been withdrawn, or shall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
shall have been obtained from the court having jurisdiction in the matter.
(N. 22; S. 40; V. 85.3L)

24. After the expiration of three calendar months from the receipt Caveate
thereof, such caveat shall be deemed to have lapsed, unless the person by pr^^edinS
whom, or on whose behalf the same was lodged, shall within that time have ^^ ^w^
taken proceedings in any court of competent jurisdiction, to establish his months
title to the estate, interest, lien or charge therein specified, and thereof shall

have given written notice to the Etecorder of Titles, or shall have obtained
from the Supreme Court an order or injunction restraining the Recorder of
Titles firom bringing the land therein referred to under the provisions of
this Act. (Summers ex parte Ayhoin, 62. N. 23-82 : Z. 145, 146 ; Q. 61-
21, 77-39; S. 45; V. 66-117, 24.)

25. Any applicant proprietor may withdraw his application at any time AppHcant
prior to the issuing of the certificate of title, and the Recorder of Titles Jfay ISJiSf'
shall, in such case, upon request in writing, signed by such applicant pro- ^^ •ppu-
prietor, return to him the abstract and all instruments of title aeposited by **"
such proprietor for the purpose of supporting his application. (N. 24-14 ;

Z. 27 ; Q. 61-29, 77-9 ; S. 41 ; V. 85-64.)



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252 TASMANIAN EEAL PEOPEETT ACT— No. 1.

instraments 26. Upon iBsaing a Certificate of title bringing land under the provisions

^y^^mchide of this Act, the Eecorder of Titles shall stamp as cancelled every instrument

other pro- of title Surrendered by the proprietor when making his application. Provided

Jetori^to that if any such instrument sl^ relate to, or include any property whether

appu«»nt personal or real, other than the land included in such certificate of title, then

propn« or ^j^^ Kecordcr of Titles shall endorse thereon a memorandum cancelling the

same in so far only as relates to the land included in such certificate of title

and shall return such instrument to such proprietor, otherwise he shall retain

the same in his office, and no person shall be entitled to the production of

such instrument so stamped, except upon the written order of the applicant

proprietor, or of some prrson claiming through or under him, or upon the

order of the Supreme Court or of a Judge thereof. (S. 42.)

Certificate 27- I^ case of an applicant proprietor, or the person to whom an

Ssoe^*** applicant proprietor may have directed certificate oi title to be issued,
name of BDall die in the interval between the date of his application and the date
■ppuSmt appointed for the certificate of title to issue, in accordance with the pro-
proprietor Yisions hereinbefore contained, the certificate of title shall be issued in
the name of such applicant proprietor, or in the name of the person to
whom he may have directed it to be issued, as the case may require, and
such land shall devolve in like manner as if the certificate o£ title had been
issued prior to the death of such applicant proprietor or person so named by
him. (Be Doust, 33 ; re O'Brien, 34. See Sec. 10, 1866 Act S. 43).
Per centage 28- TJpon the first bringing of land under the provisions of this Act,

tobe*ie^ed whether by the alienation thereof in fee from the Crown, or consequent
Mr«J?f*^e ^P^^ *^® application of the proprietor as hereinbefore provided ; and also
upon the registration of the title to an estate of freehold in possession in
land, under the provisions of this Act, derived through the will or intestacy
of a previous proprietor, or under any settlement, there shall be paid to the
Eecorder of Titles the sum specified in the Schedule hereto marked F ; and
in the case of land brought under the provisions of this Act bv the aliena-
ation in fee from the Crown, the price paid for such land shall be deemed
and taken to be the value thereof, for the purpose of levying such sum, and
in all other cases as aforesaid, such value snail be ascertained by the oath or
solemn affirmation of the applicant proprietor or person, deriving such land
by transmission : Provided always, that if the Eecorder of Titles shall not
be satisfied as to the correctness of the value so declared or sworn to, it
shall be lawful for him to require such applicant proprietor, or persoti
deriving such land by transmission, to produce a certificate of such value,
under the hand of a sworn valuator, which certificate shall be received as
conclusive evidence of such value, for the purpose aforesaid. (N. 27 ; Q.
61-41 ; V. 66-30.)
Anarance 29. AH Bums of money BO received as aforesaid shall be paid to the

{nrested ^ Treasurer of the said Colony, who shall, from time to time, invest such sums,
GoTeroment together with all interest and profits which may have accrued thereon, in the
***"*" »«• Tasmanian Government securities, to constitute an Assurance Fund for the
purposes hereinafter provided. (Q. 61-42 ; V. 66-143.)

wf^wunfon ^^' ^^® reversion expectant upon any lease shall not be deemed to

ie^no° to° have been extinguished in consequence of the laud whereof such lease has

gttiJSid' ^®®^ granted having been brought under the provisions of this Act, or under

the provisions of the hereinbefore recited Acts, or any of them, and the

Serson named in any certificate of title as seized of the land therein
escribed shall be held in every Court of law and equity to be entitled to



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TASMANlAN REAL PBOPEETT ACT— No. 1. 253

the reTersion expectant from any lease that may be noted by memorial
thereon and to have all powers, rights, and remedies to which a reversioner
is by law entitled, and shall be subject to all covenants and conditions
therein expressed, to be performed on the part of the lessor. (Z. 29 ; S.
40 ; V. 66-51.)

31. The Eecorder of Titles shall keep a book to be called the " Register Recorder of
Book," and shall bind up therein the duplicates of all grants and of all JJSiTi^is-
certificates of title ; and each grant and certificate of title shall constitute terBook

a separate folium of such book ; and the Eecorder of Titles shall record
thereon the particulars of all instruments, dealings, and other matters by
this Act required to be registered or entered on the Register Book affecting
the land included under each such grant or certificate of title distinct and
apart. (KissUng v. MitcheUon, 123. Z. 104 ; Q. 84-2 ; S. 16.)

32. The registered proprietor of an estate of freehold in possession in CMjUflc^pf
land under the provisions of this Act, not being a lease for a life or lives, dnoiicate, "*
shall be entitlea to receive a certificate of title for the same, which certifi- JJ^^J ^ j^
cate of title shall be in duplicate, in the form C of the Schedule hereto, Register
and shall set forth the nature of the estate of freehold in respect to which

it is issued, and of any powers vested in the proprietor thereof ; and the
Recorder of Titles shall note thereon, in such manner as to preserve their
priority, the particulars of all unsatisfied mortgages or other encumbrances,
and of any dower, lease, or rent-charge to which the land may be subject,
and if such certificate of title be issued to a minor or to a person otherwise ifiBsnedto
under disabilities, he shall state the age of such minor, or tne nature of the 5®"®°<ii^
disability, so far as known to him, and shall cause one original of each ability each
certificate of title to be bound up in the Register Book, and deliver the ^^^^
other to the proprietor entitled to the land described therein. (N. 81 ; Q.
61-33 ; S. 48, 69-2.)

33. Every certificate of title duly authenticated under the hand and JjJ^^^J^
seal of the Recorder of Titles shall be received in all Courts of law and e^deno^of *
equity as evidence of the particulars therein set forth, and of their being {hSt*tSe*uSd
entered in the Register Book, and shall, except in any of the cases herein- hu been
after otherwise provided, be conclusive evidence that the person named in Snir Owf *
such certificate of title or in any entry thereon, as seized of or as taking ^«*
estate or interest in the land therein described, is seized or possessed of such

land for the estate or interest therein specified and that the property com-
prised in such certificate of title has been duly brought under the provisions
of this Act ; and no certificate of title shall be impeached or defeasible on
the ground of want of notice or of insufficient notice of the application to
bring the la»d therein described under the provisions of this Act, or on
account of any error, omission, or informality in such application or in the
proceedings pursuant thereto, by the Lands Titles Commissioners or by the
Recorder of Titles. {Jones v. Fork, 87. See Sec. 26 of 1886 Act, N. 33 ; Grants and
Z. 65 ; Q. 61-122 ; S. 80 ; V. 66-47, 78-2.) ~ tiu^

34. Every land grant and certificate of title shall be deemed and taken SS^'^-
to be registered under the provisions and for the purposes of this Act, so ^*.®J^
soon as the same shall have been marked by the Recorder of Titles with the Book
folium and volume as embodied in the Register Book ; and every memoran- J?!fi^"^**
dum of transfer or other instrument purporting to transfer or in any way when memo-
to affect land under the provisions of this Act shall be deemed to be so "m SSL***' *
registered so soon as a memorial thereof, as hereinafter described, shall have t°'*.'t!_^
been entered in the Register Book upon the folium constituted by the Book



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264 TASMANIAN REAL PBOPEBTT ACT— No. 1.

Definition of existing grant or certificate of title of such land ; and the person named in
propriel^ any grant, certificate of title, or other instrument so registered as seized of
or taking any estate or interest shall be deemed to be the registered proprietor
thereof. (Featherstone v. Hanlotiy 4 ; Pannan r. Fannan, 16, 18 ; Ohomley v.
Firebrace, 21 ; JTouse v. CFarrell, 51 ; re Hayton and Dibbs, 67 ; SaU t.
B^all, 98; Fitzgerald y. Archer, 101 ; Kirkham v. Carpenter, 111; ex parte
the Mutual Trust Company, 117, 136; Jones v. Jones, 134; Rail v. Loder,
168 ; Stevens y. Williams, 186 ; Robertson v Keith, 195 ; Miller v. Morrissey,
214; Jiru/7?Ay v. Mitchell, 216. N. 34, 78-14; Z. 32 ; Q. 61-34, 35 ; S. 50,
53, 58 ; V. 66-42.)

S?b21?*^** 35. Except as is hereinafter otherwise provided, every grant or other
dupUcate instrument presented for registration shall be in duplicate, and shall be
attested by a witness ; and shall be registered in the order of time in which
in«tran»enu the same is produced for that purpose ; and instruments registered in respect
prkfritf ^ to or afiecting the same estate or interest, shall, notwithstanding any express,
according to implied, or constructive notice, be entitled in priority the one over the other
tration[alndi according to the date of registration, and not according to the date of each
tCTed,7ob« instrument itself; and the Becorder of Titles, upon registration thereof,
deem'edtobe shall file oue Original in his office, and shall deliver the other to the person
Rc^^tor* "* entitled thereto ; and so soon as registered every instrument drawn in any
tohJ' "^ of the several forms provided in the Schedule hereto, or in any form which
effect^of a* ioT the Same purpose may be authorised, in conformity with the provisions
<*«^ of this Act shall, for the purposes of this Act, be deemed and taken to be

embodied in the E^gister Book as part and parcel thereof, and such instru-
ment, when so constructively embodied, and stamped with the seal of the
Recorder of Titles, shall have the effect of a deed duly executed by the
parties signing the same. {Mudgway v. Davy and Buick, 1 ; Sharpe v.
Hadley, 3 ; D'Albrydhill y. D'Albri/dhill, 82 ; Wildash v. Hutchison, 132 ;
re Craig, 76 ; Patchell v. Maunsell, 113. N. 35 ; Z. 33 ; S. ^Q, 58 ; V.
66-37.)
S)T^Simt8 to ^®' ^^ ©very instrument charging, creating, or transferring, any estate
be impUed or interest in land under the provisions of this Act« there shall be implied
mottU™" *^® following covenant by the party charging, creating, or transferring such
estate or interest, that is to say : — That he will do such acts and execute
such instruments, as in accordance with the provisions of this Act may be
necessary to give effect to all covenants, conditions, and purposes expressly
set forth in such instruments, or by this Act declared to be implied against
such party in instruments of a like nature. (JSucknaU v. Beid, 145. Q.
61-67.)
Memorial 37* Every memorial entered in the Eegister Book shall state the nature

defined ^£ ^^ie instrument to which it relates, the day and hour of the production of
such instrument for registration and the names of the parties thereto, and
shall refer by number or symbol to such instrument and shall be signed by
the Recorder of Titles. (N. 37 ; Z. 34 ; S. 61 ; V. 66-40.)

Memorial to 33. Whenever a memorial of any instrument has been entered in the
on delicate Register Book, the Recorder of Titles shall, except in the case of a transfer
other initru. ^^ other dealing endorsed on a memorandum of lease or of mortgage or of
ment ' incumbrance as hereinafter provided, record the like memorial on the dupli-
cate grant, certificate of title, lease, or other instrument evidencing title to
the estate or interest intended to be dealt with, or in any way affected,
unless the Recorder of Titles shall, as hereinafter provided, dispense with
the production of the same ; and the Becorder of Titles shall endorse on



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TASMANIAN BEAL PEOPEETT ACT-No. 1. 265

every instrument so registered a certificate of the date and hour on which certificate
the said memorial was entered in the Register Book, and shall authenticate J^'^e'J^i*'"
each such certificate by signing his name and affixing his seal thereto ; and denoe
such certificate shall be received in all courts of law and equity as conclusive
evidence that such instrument has been duly registered. (Aubrey v. Seott,
79. N. 38 ; Z. 85 ; Q. 61-45 ; S. 53 ; V. 66-41.)

39. No instrument shall be effectual to pass any estate or interest in inBtroments
any land under the provisions of this Act, or to render such land liable as °ntiff|JJ^
security for the payment of money; but upon the registration of anyinstru- inBegistry
ment in manner hereinbefore prescribed the estate or interest 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 ; and should two or
more instruments, executed by the same proprietor, and purporting to
transfer or encumber the same estate or interest in any land, be at the same
time presented to the Recorder of Titles for registration and endorsement,
he shall register and endorse that instrument under which the person
claims property, who shall present to him the grant or certificate of title
of such land for that purpose. (N. 35; Z. 36 ; Q. 61-43, 77-14; S. 67 ;
V. 66-61.)

40. Notwithstanding the existence in any other person of any estate Batate of
or interest, whether derived by grant from the Crown or otherwise, which, JJ^jJiSi^
but for this Act, might be held to be paramount, or to have priority, the paramount
registered proprietor of land, or of any estate or interest in land under the
provisions of this Act, shall, except in case of fraud, hold the same subject

to such encumbrances, liens, estates, or interests, as may be notified on the
folium of the Register Book, constituted by the grant or certificate of title
of such land, but absolutely free from all other encumbrances, liens, estates,
or interests whatsoever, except the estate or interest o£ a proprietor claim-
ing the same land under a prior certificate of title, or under a prior grant
registered under the provisions of this Act, and except so far as regards the
omission or misdescription of any right of way or other easement created in
or existing upon any land, and except so far as regards any portion of land
that may be erroneously included in the grant, certificate ot title, lease, or
other instrument evidencing the title of such registered proprietor by a
wrong description of parcels or boundaries. (Hassett v. Colonial Bank, 138.
N. 40 ; Z. 55 ; Q. 61-4 i ; V. 66-49.)

41» The Recorder of Titles shall not register any instrument pur- JjJ^^g*^®"*"
porting to transfer or otherwise to deal with or affect any estate or JListered
interest in land under the provisions of this Act, except in the "^a-nner JJ^JJJ^J^
herein provided, nor unless such instrument be in accordance with the pro- withpreeon-
visions hereof . ^^^''""^

42. When land under the provisions of this Act is intended to be Tramfer
transferred, or any right of way or other easement is intended to be created
or transferred, the registered proprietor shall execute a memorandum of
transfer in Form D. of the Scnedule hereto, which memorandum shall, for
description of the land intended to be dealt with, refer to the grant or
certificate of title of such land, or shall give such description as may be
sufficient to identify the same, and shall contain an accurate statement of
the estate, interest, or easement intended to be transferred or created, and



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266 TASMANIAN EEAL PEOPEETT ACT— No. 1.

a memorandum of all leases, mortgages, and otlier encambrances to which
the same may be subject. {Kelly ▼. Fuller, 139 ; Formby v. Adelaide
Corporation, 199. N. 42 ; Z. 76 ; Q. 61-48 ; S. 96 ; V. 66-57.)
EMementa 43, Whenever an;^ easement, or any incorporeal right other than an

poreii rijhta annuity or rent charge, in or over any land under the provisions of this Act,
tered " ^® created for the purpose of being annexed to or used and enjoyed together
with other land under the provisions of this Act, the Becorder of Titles
shall enter a memorial of the instrument creating such easement or incor-
poreal right upon the folium of the Eegister Book, constituted by the exist-
ing grant or certificate of title of such other land. (Anderson v. Maori
mil Borough, 103, 124. N. 43 ; Z. 61 ; Q. 61-51, 77-28, 85-9 ; S. 81 ; V.
85-41.)
If estate of 44* If the memorandum of transfer purports to transfer an estate of

tl^sfirred freehold in possession not being a lease for a life or lives in the whole or in
oertifloate of part of the land mentioned in any grant or certificate of title, the trans-
deifverecTup Toror shall deliver up the grant or certificate oi: title of the said land ; and
ceUeT'Voiar ^^® EecDrdcr of Titles shall, after registering the transfer, enter on such
as regards grant or Certificate of title a memorandum cancelling the same, either
ofl£d^**" whoUv or partially, according as the memorandum of transfer purports to
tpansierred transfer the whole, or part only, of the land mentioned in such grant or
certificate of title, and setting forth the particulars of the transfer. {Ex
parte Bighy, 77. N. 44 ; Q. 61-49.)
Fresh oerti- 45. The Eecordor of Titles upon cancelling any grant or certificate of

issued to * title, either wholly or partially, pursuant to any such transfer, shall make
purchaser q^j^^ ^0 the transferee, a certificate of title to the land mentioned in such
A certificate memorandum of transfer ; and every such certificate of title shall refer to
balance, if the Original grant of such land, and to the memorandum, or other instru-
any, unl mcut of transfer ; and the Recorder of Titles shall retain every such can-
to'SSti^ celled or partially cancelled grant or certificate of title, and whenever
*rietorwhen required thereto by the proprietor of an unsold portion or balance of land
Swnandldr* included in any such partially cancelled grant or certificate of title, or by a
rJJiJtered registered transferee of such portion or of any part thereof, shall make out
transferee to such proprietor, or transferee, a certificate of title for such portion, or
thereof £^j. ^^^ ^^^ thereof, of which he is the proprietor or transferee. (N.

45-127 ; Q. 61-50, 132, 77-117.)

'ftanaferee 4Q, In every instrument transferring an estate or interest in land

ject to mort- under the provisions of this Act, subject to mortgage or encumbrance,

gage or there shall be implied the following covenant by the transferee ; that is to

branceto say : — That such transferee will pay the interest or annuity secured by such

[J^°^ mortgage or encumbrance, after the rate and at the times specified in the

instrument creating the same, and will indemnify and keep harmless the

transferor from and against the principal sum secured by such instrument,

and from and against all liability in respect of any of the covenants therein

contained, or by this Act implied, on the part of the transferor. (N. 46 ;

Q. 61-68 ; V. 66-63.)

Lands under 47, W'hon any land under the provisions of this Act is intended to be

iioM^f^his leased or demised for a life or lives, or for any term of years exceeding three

Act how years, the proprietor shall execute a memorandum of lease in Form E of the

Schedule hereto ; and every such instrument shall, for description of the

land intended to be dealt with refer to the grant or certificate of title of the

land, or shall give such other description as may be necessary to identify

such land ; and a right for or covenant by the lessee to purchase the land



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TASMANIAN EEAL PEOPBETT ACT— No. 1. 267

therein described, may be stipulated in such instrument ; and in case the
lessee shall pay the purchase money stipulated and otherwise observe his
covenants expressed and implied in such instrument, the lessor shall be
bound to execute a memorandum of transfer to such lessee of the said land,
and the fee-simple thereof, and to perform all necessary acts by this Act
prescribed for the purpose of transferring to a purchaser the said land, and
the fee-simple thereor : Provided always, that no lease of mortgaged or
encumbered land, shall be valid and binding against the mortgagee or
encumbrancee, unless such mortgagee or encumbrancee shall have consented
to such lease prior to the same being registered. (JEx parte Bond, 89 ;
Smith V. Davy, 135 ; Ettershmh v. The QueeUy 158 ; Wilson v. King, 166 ;
BucketHY. Knolhe, 167, 168. N. 49 ; Q. 61-52 ; S. 97 ; V. 66-75.)

48. Whenever any lease or demise, which is required to be registered Le«we may
by the provisions of this Act, is intended to be surrendered, and the dewSTEy*"
surrender thereof is effected otherwise than through the operation of a «ndoraement
surrender in law, or than under the provisions of any law at the time being mufo^-
in force in the said colony, relating to insolvent estates, there shall be J^S^"^ **'
endorsed upon such lease, or on the counterpart thereof, the word " sur-
rendered," with the date of such surrender ; and such endorsement shall bo

signed by the lessee, and by the lessor, as evidence of the acceptance thereof,
and f'hall be attested by a witness ; and the Eecorder of Titles thereupon
shall enter in the Eegister Book a memorandum recording the date of such
surrender, and shall likewise endorse upon the lease a memorandum record-
ing the fact of such entry having been made in the Eegister Book ; and
upon such entry being so made in the Eegistry Book, the estate or
interest of the lessee in such land shall revest in the lessor, or in the



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