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

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person in whom, having regard to intervening circumstances (if any), the
said land would have vested if no such lease had ever been executed ; and
production of such lease or counterpart bearing such endorsement and
memorandum shall be sufficient evidence that such lease had been so
surrendered : Provided that no lease subject to mortgage or encumbrance
shall be so surrendered with the consent of the mortgagee or encumbrancee.
(N. 60 ; Z. 89 ; Q. 61-54 ; S. 120 ; V. 66-82.)

49. In every memorandum of lease there shall be implied the following OoTonantsto
covenants against the lessee, unless otherwise provided in such memorandum ; Jf ^^^
that is to say : — (1) That he will pay the rent thereby reserved, at the times leMeegwnrt
therein mentioned, and all rates and taxes which may be payable in respect *^* ^®**®®
of the demised property during the continuance of the lease. (2) That he

will keep and yield up the demised property in good and tenantable repair,
damage by fire, storm, tempest, act of the Queen's enemies, and reasonable
wear and tear excepted. (Runfer v. Flayer, 24 ; D'Alhrdghill v. JfAlhrdy-
hill, 82 ; Buchnall v. Beid, 145 ; Otago Harbour Board v. Spedding, 165 ;
Wihon V. King, 166. N. 51, 90 ; Z. 156 ; Q. 61-70, 75 ; S. 124, 130, 132,
152 ; V. 66-76, 77, 85-28.)

50. In every memorandum of lease there shall also be implied the Fowen to
following powers in the lessor, unless otherwise provided in such memo- ^^Mor*^
randum ; that is to say : — (1) 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 this colony, or upon the demised property, a notice in
writing of any defect, requiring him, within a reasonable time to be therein
prescnbed, to repair the same. (2) That in case the rent, or any part



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268 TASMAISIAN EEAL PROPEBTT ACT— No. 1.

thereof, Bhall be in arrear for the space of six calendar months, 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 six calendar months, or in case the repairs required by such
notice as aforesaid shall not have been completed within the time therein
specified, it shall be lawful for such lessor to re-enter upon and take pos-
session of such demised premises. (Ktckham v. The Queen, 47 ; BucknaU
V. Beid, 14^. N. 61, 62 ; Z. 92 ; Q. 61-71 ; 3.125-2.)

^SmtoloL ^^' ^^ *°y ^^^^ ^*'® *^® Recorder of Titles, upon proof to his satis-
particuto f actiou of ro-ontry and recorery of possession by a lessor, by any proceeding
^KSrtSr. ^^ ^*^> '^^^^ °^^ *^® """^^ ^y entry in the Register Book ; and the estate
Book 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 Recorder of Titles shall cancel such lease if
delivered up to him for that purpose.
Sis Act how ^^* Whenever any land or estate, or interest in land under the pro-
mortgaged visions of this Act is intended to be charged or made security in favour of
berod*^"' ^^7 mortgagee, the mortgagor shall execute a memorandum of mortgage in
Form F. of the Schedule hereto ; and whenever any such land, estate or
interest as aforesaid is intended to be charged with or made security for the
payment of an annuity, rent charge, or sum of money, in favour of any
encumbrancee, the encumbrancer shall execute a memorandum of encum-
brance, in Form G-. of the Schedule hereto ; and every such instrument
shall contain an accurate statement of the estate or interest intended to be
mortgaged or encumbered, and shall, for description of the land intended to
be dealt with, refer to the grant or certificate of title of the land in which
sndh estate or interest is held, or shall give such other description as may be
necessary to identify such land, together with a statement of all mortgages
and other encumbrances affecting the same (if any). {Chomley v. Firehrace,
21 ; Burne v. Stewart, 2S ; Barker v. Weld, 31 ; Jellicoe v. Wellington Loan
Company, 60 ; Rose v. McNeil, 118 ; Hart v. Stratton, 119. N. 64, 68, 113 ;
Z. 97 ; Q. 61-60, 66, 61 ; S. 137, 138 ; V. 67-2.)

Soum?^** 53. Mortgage and encumbrance under this Act shall have effect as

bnnoe not socurity, but shall not operate as a transfer of the land thereby charged ; and

toSafw**" ^^ case default be made m payment of the principal sum, interest, annuity, or

Prooud ^^^^ charge, or any part thereof thereby secured, or in the observance of any

inoMeof covcuant expressed in any memorandum of mortgage or of encumbrance

default registered under this Act, or that is hereinafter declared to be implied in

such instrument, and such default be continued for the space of one calendar

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 memorandum of mortgage, or of encumbrance, or to observe the

covenants 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 Tasmania of the mortgagor or encumbrancer, or other person

claiming to be then entitled to the said land. (Ux parte Rassell, 177.)

Pfljirerto g^.^ After such default in payment, or in observance of covenants

continuing for the further space of one calendar month from the date of

such notice, or for such other period as may in such instrument be for that

purpose limited, such mortgagee or encumbrancee is hereby authorised and



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TASMANIA^ EEAL PEOPEETT ACT— No. 1. 269

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
both such modes of sale, and subject to such conditions as he may think fit,
and to buy in and re-sell the same without beins^ liable for any loss
occasioned thereby, and to make and execute all such instruments as shall
be necessary for effecting the sale thereof, all which sales, contracts,
matters, and things hereby authorised shall be as yalid and effectual as if
the mortgagor or encumbrancer 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 such land, estate, or interest, or of
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 purcnase money by him paid, nor shall he be concerned to inquire as
to the fact of any default or notice haying been made or given as aforesaid ;
and the purchase money to arise from the sale of any such land, estate, or
interest shall be applied — First, in payment of the expenses occasioned by AppropriA-
Buch sale — Secondly, in payment of tbe moneys secured on such land, p^,Je^
estate, or interest which may then be due or owing to the mortgagee or
encumbrancee ; and the surplus (if any) shall be paid to the mortgagor or /
encumbrancer as the case may be. (Bur^e v. Stewart, 28 ; Buckett y.
Knohbe, 167; St, George y. Burnett, 175; Boss y. Victoria Fermanent
Building Society, 180; re John Eaton, 194. N. 66 ; Z. 98, 99, 77-20 ; Q.
61-69,67; S. 133,136; V. 66-85; 85-44.)

55. Upon the registration of any memorandum or instrument of g»orderof
transfer executed by a mortgagee or encumbrancee for the purpose of such gi^JflJot
sale as aforesaid, the estate or interest of the mortgagor or encumbrancer ^ *^^J^
therein described as to be conveyed shaU pass to and vest in the purchaser, "**otIo™!
freed and discharged from all liability on account of such mortgage or ^'»«><^
encumbrance or of any mortgage or encumbrance registered subsequent
thereto ; and if such memorandum of transfer purports to pass an estate of
freehold in possession, the purchaser shall be entitled to receive a certificate

of title for the same. {Be Ihompson and Chipps, 27 ; Miller y. Morrissey,
181.)

56. The mortgagee or encumbrancee, upon default in payment of the J^JJJf °^
principal sum or any part thereof, or of any interest, annuity, or rent mortgaf^ee
charge, secured by any mortgage or encumbrance, may enter into possession JJi^j^^w
of the mortgaged or encumbered land by receiving the rents and profits enter and
thereof, or may distrain upon the occupier or tenant of the said land under Ijjn, o?mIy
the power to distrain hereinafter contained ; or may pursue the remedy dirtndn
hereinafter provided to obtain possession of the said land either before or Mmr bring
after entering into the receipt of the rents and profits thereof, or making . ^^J
any distress as aforesaid, and either before or after any sale of such land ?r^7^M.
shall be effected under the power of sale given or implied in his memorandum Jid™fion'
of mortgage or of encumbrance, and any such registered mortgagee shall be
entitled to foreclose the right of the mortgagor to redeem the said mortgaged

or encumbered lands in manner hereinafter provided.

57. Besides his remedy against the mortgagor or encumbrancer every Mortgagee
mortgagee or encumbrancee, shall be entitled, after the principal sum, or enoam.
interest, annuity, or rent charge shall have become in arrear for twenty-one SJSSJot^
days, and after seven days have elapsed from the date of application for the tenvitor



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260 TASMANIAN EEAL PEOPESTT ACT— No. 1.

ooonpier for payment thereof to the occupier or tenant to enter upon the mortgaged or
SSSSS^ encumbered land, and diatrain and sell the goods and chattels of such
the amoont occupier or tenant, and to retain thereout the moneys which shall be so in
by'iJSA^'** arrear and all costs and expenses occasioned by such distress and sale:
tenant or Provided that no occupier or tenant occupying such land shall be liable to
******°^"' pay to any mortgagee or encumbrancee, a greater sum tlian the amount of
u»bie?OT ^^* which at the time of making such distress may be then due from such
fnreaterram occupior or tenant to the mortgagor or encumbrancer, or to the person
amon^of claiming the said land under the mortgagor or encumbrancer, and any
rent a<^aaity amouut 80 paid shall be held to be pro tanto in satisfaction of such rent.
hSf** ^ {Jellicoe v. Wellington Loan Company, 60 ; Boss v. McNeily 118 ; Rart v.

Stratum, 119 ; WiUon t. King, 166. N. 58 ; Z. 97 ; Q. 61-60, 61 ; S. 137,

138 ; V. 67-2. See note to Sec. 62, ante.)

Mortgagee 68. Any mortgagee or encumbrancee of leasehold land under the

bri^2fof provisions of this Act, or any person claiming the said land as a purchaser

eoto^^^^^lnto ^^ otherwise, from ox^der such mortgagee or encumbrancee, after entering

pouelmoD into possossion of the said land, or the rents and profits thereof, shall,

proSa "^ during such possession and to the extent of any rents and profits which may

becomea be received by him, become and be subject and liable to the lessor of the

£S|^^ said land, or the person for the time being entitled to the said lessor's estate

or interest in the said land, to the same extent as the lessee or tenant was

subject to and liable for prior to such mortgagee, encumbrancee, or other

person entering into possession of the said land, or the rents and profits

thereof. (Jtwiy v. Stuart, 161. N. 69 ; Z. 113 ; Q. 61-62 ; S. 139 ; V.

66-»l.)

iMsoharge 59. Upon the production of any memorandum of mortgage or of

and ot!^S* encumbrance, having thereon an endorsement, signed by the mortgagee or
branoes eucumbrancee, and attested by a witness, discharging the land, estate, or
interest from the whole or part of the principal sum or annuity secured, or
discharging any part of the land comprised in such instrument from the
whole of such principal sum or annuity, the Recorder of Titles shall make
an entiy in the Register Book, noting that such mortgage or encumbrance
is discharged wholly or partially, or that part of the land is discharged as
aforesaid (as the case may require), and, upon such entry being so made,
the estate or interest, or the portion of land mentioned or referred to in
such endorsement as aforesaid, shall cease to be subject to or liable for such
principal sum or annuity, or (as the case may be), for the part thereof
noted in such entry as discharged. (N. 61 ; Z. 108 ; Q. 61-63 ; S. 143, 147 ;
V. 66-100.)

Entnr of 60. Upon proof of the death of the annuitant, or of the occurrence of

oJami^" the event or circumstance upon which, in accordance with the provisions of
any memorandum of encumbrance, the annuity or sum of money thereby
secured shall cease to be payable, and, upon proof that all arrears of the said
annuity and interest or monev have been paid, satisfied or discharged,
the Becorder of Titles shall make an entry in the Register Book, noting
that such annuity or sum of money is satisfied and discharged, and shall
cancel such instrument; and, upon such entry being made, the land,
estate, or interest shall cease to be subject to or liable for such annuity
or sum of money ; and the Becorder of Titles shall, in any or either such
case as aforesaid, endorse on the grant, certificate of title, or other
instrument evidencing the title of the mortgagor or encumbrancer to the
land, estate, or interest, mortgaged or encumbranced, a memorandum



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TASMANIAN EBAL PEOPBETT ACT— No. 1. 261

of the date on which such entry as aforesaid was made by him in the
Eegister Book, whenever such grant, certificate of title, or other
instrument, shall be presented to him for that purpose. (N. 62 ; Z. 110 ;
8. 145 ; V. 66-100.)

61. In case the registered mortgagee shall be absent from the said Mortgage
colony, and there be no person authorised to give a receipt to the SJ^Sd'tJ^
mortgagor for the mortgage money at or after the date appointed for the ^^^^
redemption of any mortgage, it shall be lawful for the Treasurer of the be»biS?**
said colony to receive such mortgage money, with all arrears of interest cXn^y \nd
then due thereon, in trust for the mortgagee or other person entitled mortgage
thereto ; and thereupon the interest upon such mortgage shall cease to run <^'*»*»»'«®d
or accrue ; and the Eecorder of Titles shall, upon the receipt of the said
treasurer for the amount of the said mortgage money and interest, make
an entry in the Eegister Book discharging such mortgage, stating the day
and hour on which such entry is made ; and such entry shall be a valid
discharge for such mortgage, and shall have the same force and effect as is
hereinbefore given to a like entry when made upon production of the
memorandum of mortgage, with the receipt of the mortgagee; and the
Eecorder of Titles shall endorse on the grant, certificate of title, or other
instrument as aforesaid, and also on the memorandum of mortgage,
whenever those instruments shall be brought to him for that purpose, the
several particulars hereinbefore directed to be endorsed upon each of such
instruments, respectively. N. 61, 63 ; Z. 108, 189 ; Q. 61-64 ; 8. 143, 146 ;
V. 66-100.)

62. In every memorandum of mortgage there shall be implied against Oorenantsto
the mortgagor a covenant that he will repair and keep in repair alljj^^®^
buildings or other improvements erected ana made upon such land ; and memoran-
that the mortgagee may at all convenient times, until such mortgage be nl^^e
redeemed, be at liberty, with or without surveyors or others, to ^iter into

and upon such land, to view and inspect the state of repair of such
buildings or improvements. (Bucknalt v. Beid, 146 ; N. 64 ; Z. 95 ; Q.
61-69 ; S. 130 ; V. 66-90.)

63. A registered mortgage, a registered lease, or the interest of a Transfer of
registered encumbrance may be transferred to any person by memorandum Sid'ofra'-
of transfer as aforesaid, or by an instrument in the Form H. of the ^^'^JifJJS
schedule hereto, which instrument may be endorsed upon the memorandum "

of mortgage, encumbrance, or lease ; and, upon such memorandum of
transfer or other instrument being registered, the estate or interest of the
transferor, as set forth in such instrument, with all rights, powers, and
privileges thereto belonging or appertaining, shall pass to the transferee,
and such transferee shall thereupon become subject to and liable for all
and every the same requirements and liabilities to which he would have
been subject and liable if named in such instrument originally as mortgagee,
encumbrancee, or lessee of such land, estate, or interest. (N. 47 ; ^. 82 ;
Q. 61-66; 8.162.)

64. By virtue of every such transfer, as is hereinbefore mentioned* ^^"^^ o'
the right to sue upon any memorandum of mortgage, or other instrumenti KSJe^* ^
and to recover any debt, sum of money, annuity, or damages thereunder JiJof'ri^"
(notwithstanding the same may be deemed or held to constitute a chose in to sue there.
action) ; and all interest in any such debt, sum of money, annuity, or ^^^
damages shall be transferred so as to vest the same at law as well as in
equity in the transferee thereof: Provided always, that nothing herein



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262



TASMANIA^ EEAL PEOPEETT ACT— No. I.



SaTing
powers to
Courts of
Bqoity to
give effect to
trosta

AbbreTiated
form of
words
to be as
effeotnal
as if such
were set
forth in
words at
length

Insure



Paint out-
side



Faint and
paper inside



Fenoe



CultiTate



contained shall prevent a Court of Equity from giving effect to any trust
affecting the said debt, sum of money, annuity, or damages, in case the
transferee shall hold the same as a trustee for any other person. (^BeeUh
V. Anderson^ 192.)

65- Such of the covenants hereinafter set forth as shall be expressed
in any memorandum of lease or mortgage as to be implied shall, if
expressed in the form of words hereinafter appointed and prescribed for the
case of each such covenant respectivelv, be so implied as fully and
effectually as if such covenants were set forth fully and in words at length
in such instrument ; that is to say,— (N. 65 ; Z. 157 ; Q. 61-73, 6 ; S. 265.)

The words " will insure '* shall imply as follows : — ^That the lessee or
mortgagor will insure, and, so long as the term expressed in the said
mortgage or lease shall not have expired, will keep insured in some public
insurance office, to be approved by such mortgagee or lessor, against
loss or damage by fire to the full amount specifi^ in such instrument, or
if no amount be specified, then to their full value, all buildings, tenements,
or premises erected on such land, which shall -be of a nature or kind
capable of being insured against loss or damage by fire; and that the
mortgagor or lessee will, at the request of the mortgagee or lessor, hand
over to and deposit with him the policy of every such insurance, and
produce to him the receipt or receipts for the annual or other premiums
payable on account thereof : and also that all moneys to be received under
or by virtue of any such insurance shall, in the event of loss or damage by
fire, be laid out and expended in making good such loss or damage : Provided
also, that if default shall be made in the observance or performance of the
covenant last above mentioned, it shall be lawful for the mortgagee or
lessor, without prejudice nevertheless to and concurrently with the powers
granted him by his memorandum of mortgage or lease, of or by this
Act provided, to insure such building ; and the costs and charges of such
insurance shall, until such mortgage be redeemed or such lease shall have
expired, be a charge upon the said land :

The words "paint outside every [alternate] year" shall imply as
follows ; viz. : — And also will, in every alternate year, during the currency
of such lease, paint all the outside wood-work and iron-work belonging to
the hereditaments and premises mentioned in such lease, with two coats of
proper oil colours in a workmanlike manner :

The words " paint and paper inside every [third] year " shall imply as
follows, viz. ; — And will in every third vear during the currency of such
lease, paint the inside wood, iron, and other works now or usually painted
with two coats of proper oil colours in a workmanlike manner ; and also re-
paper with paper of a quality as at present such parts of the said premises
as are now papered ; and also wasn, stop, whiten, or colour such parts of
the said premises as are now whitened or coloured respectively. (N. 65 ;
Q. 61-73.)

The words " will fence '* shall imply as follows, viz. : — And also will,
during the continuance of the said lease, erect and put up on the boundaries
of the land therein mentioned, or upon such boundaries upon which no sub-
stantial fence now exists, a good and substantial fence. (Q. 61-73.)

The word " cultivate " shall imply as follows, viz. : — And wQl at all
times during the said lease cultivate, use, and manage all such parts of the
land therein mentioned as are or shall be broken up or converted into
tillage in a proper and husbandlike manner, and will not impoverish or
waste the same.



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TASMANIAN EEAL PROPBETT ACT— No. 1.

The words '' that the lessee will not use the said premises as a shop " Not om as a
shall imply as follows, viz. : — And also that the said lesspe will not convert, '^^^
use, or occupy the said hereditaments and premises mentioned in such lease,
or any part thereof, into or as a shop, warehouse, or other place for carry-
ing on any trade or business whatsoever, or permit or suffer the said here-
ditaments and premises or any part thereof to be used for any such purpose
or otherwise than as a private dwelling-house, without the consent in writing
of the said lessor. (N. 65 ; Q. 61-73.)

The words "will not carry on offensive trades" shall imply as follows: — Offenriye
And also that no noxious, noisome, or offensive art, trade, business, occupa- ^'^^^
tion or calling, shall at any time during the said term be used, exercised,
carried on, permitted or suffered, ia or upon the said heredita uents and
premises above-mentioned, and that no act, matter or thing whatsoever
shall, at any time during the said term, be done in or upon the said heredita-
ments and premises or any part thereof, which shall or may be or grow
to the annoyance, nuisance, grievance, damage, or disturbance of the
occupiers or owners of the adjoining lands and hereditaments. (N. 65 ; Q.
61-73.)

Tbe words " will not without leave assign or sublet " shall imply as Asmgn or
ftjUows, viz. : — And also that the said lessee shall not nor will, during the *"^^®'
term of such lease, assign, transfer, demise, sublet, or set over or otherwise,
by any act or deed, procure the lands or premises therein mentioned, or any
of them, or any part thereof, to be assigned, transferred, demised, sublet, or
set over unto any person whomsoever without the consent in writing of the
said lessor first had and obtained.

The words " will not cut timber " shall imply as follows: — And also Out timber
that the said lessee shall not nor will cut down, fell, injure or destroy any
growing or living timber, or timber-like trees, standing and being upon the
said hereditaments and premises above mentioned, without the consent in
writing of the said lessor.

The words "will carry on the business of a publican, and conduct the Biwinessof
same in an orderly manner " shall imply as follows, viz.: — And also that the Sriorij"
said lessee will at all times, during the currency of such lease, use, exercise, ™*"^»e'
and carry on, in and upon the premises therein mentioned, the trade or
business of a licensed victualler or publican and retailer of spirits, wines,
ale, beer, and porter, and keep open and use the messuage, tenement, or
inn, and buildings standing and being upon the said land, as and for an inn
or public-house for the reception, accommodation, entertainment of travel-
lers, guests, and other persons resorting thereto or frequenting the same,
and manage and conduct such trade or business in a quiet and orderly man-
ner, and will not do, commit, or permit, or suffer to be done or committed,



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