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

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any act, matter, or thing whatsoever, whereby or by means whereof any
licence shall or may be forfeited, or become void, or liable to be taken away
suppressed, or suspended in any manner howsoever. (Q. 61-73.)

The words " will apply for renewal of licence '* shall imply as follows. Apply for
viz. : — And also shall and will from time to time, during the continuance of JSence
the said term, at the proper times for that purpose, apply for and endeavour
to obtain, at his own expense, all such licences as are or may be necessary
for carrying on the said trade or business of a licensed victualler or publi-
can in and upon the said hereditaments and premises, and keeping the said
messuage, tenement, or inn open as and for an inn or public-house as afore-
said. (N. 66 ; Q. 61-73.)



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264 TASMANIAN EEAL PEOPBBTT ACT— No. 1.

Fftoiutftta The words "will facilitate the transfer of licence" shall imply as

SuSm»*' follows, viz. : — And also shall and will, at the expiration op other sooner
determination of the said lease, sign and give such notice or notices and
allow such notice or notices of a renewal or transfer of any licence as may
be required by law to be affixed to the said messuage, tenement, or inn, to
be thereto affixed and remain so affixed during such time or times as shall be
necessary or expedient in that behalf, and generally to do and perform all such
further acts, matters, and things as shall be neceesary to enable the said
lessor or any other person authorised by him to obtain the renewal of any
licence, or any new licence, or the transfer of any licence then existing and
in force. (Aatianal Bank v. National Mortgage and Agency Co., 12 ;
Chomley v. Firebrace, 21 ; George v. Australian Mutual Provident Society ^ 66 ;
8t, George v. Burnett, 57, 175 ; Patchell v. Maunsell, 113 ; re William
Wadham, 114 ; Miller v. Stewart, 172. N. 65 ; Q. 61-73 ; T. 65.)

toSsto tTb^' 66, The Recorder of Titles shall not make any entry in the Register

entered in Book of any notico of trusts, whether expressed, implied, or constructive ;

BoSk*^ hut trusts may be declared by any instrument or deed, which instrument or

deed may include, as well lands under the provisions of this Act, as land

which is not under the provisions thereof : Provided that the description of

the several parcels of ?and contained in such instrument or deed shall suffi-

jj^^^j^^^^ ciently distinguish the land which is under the provisions of this Act from

dMiaring the land which is not under the provisions thereof; and a duplicate or an

oSpSiSi^ attested copy of such instrument may be deposited with the Recorder of

but not * Titles for safe custody and reference ; but shall not be registered. (N. 66,

"*"**^ 75 ; Z. 1 19, 122 ; Q. 61-55, 79, 80 ; S. 161, 162.)

J^J2^of 67. Whenever the registered proprietor of any land, or of any estate

be xnlde^a or interest in the said land, which is either wholly or in nart registered
^'^^ under the provisions of this Act or desirous of transferring the same to two
or more persons in trust, it shall be lawful for such proprietor, in the
instriunent or deed declaring such trust, to nominate and appoint the
Recorder of Titles, by the style of his office, to be one of such trustees, and
it shall thereupon be the duty of the Recorder of Titles for the time being
to act as such trustee so far as relates to the transfer of such land, estate,
or interest.

iMertioa of QQ^ Upon the transfer of any land, estate, or interest under the provi-

"noBur-^^ sions of this Act, to two or more persons, as joint proprietors, to be held by

S^SSu-" them as trustees, it shall be lawful for the transferor to insert in the memo-

ment of raudum of transfer, or other instrument, the words " no survivorship," and

oFtrusSeT* the Recorder of Titles shall in such case include such words in the memorial

to opente of such instrument to be entered by him in the Register Book as hereinbefore

leM n'^mber^ directed, and shall also enter the said words upon any certificate of title,

SJmSS! issued to such joint proprietors, pursuant to such memorandum of transfer,

reuirtered and any two or more persons registered as joint proprietors of any land,

djaiinj^witii ^tate, or interest under the provisions of this Act, held by them as trustees^

jiOiout may by writing under their hand, authorise the Recorder oi Titles to enter the

Court words " no survivorship " upon the grant, certificate of title, or other

instrument evidencing their title to such estate or interest, and also upon

the duplicate of such instrument in the Register Book or file in his office,

and after such entry has been made and signed by the Recorder of Titles in

either such case as aforesaid, it shall not be lavrf ul for any less number of

joint proprietors than the number then registered to transfer or otherwise



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TASMANIAN EEAL PEOPEETT ACT— No. 1. 265

deal with the said land, estate, or interest, without obtaining the sanction of
the Supreme Court or a Judge thereof, by an order on motion or petition.
(Z. 123, 126 ; Q. 61-80 ; S. 163, 166 ; V. 66-16, 66-45.) ,

69. Before making any such order as aforesaid the court or judge shall ^°^?S^
if it seem requisite, cause notice of intention so to do to be advertised l^ore effeot
once in the Government Gazette and three times ill at least one newspaper "«*▼«» *<>
published in the City of Hobart Town and Town of Launceston, and shall ^ ^
appoint a period or time within which it shall be lawful for any person
interested to show cause why such order should not be issued, and thereupon

it shall be lawful for the said court or judge in such order to give directions
for the transfer of such land, estate, or interest to any new proprietor or
proprietors, solely or jointly with or in the place of any oi the existing
proprietor or proprietors, or to make such order in the premises as the court
thinks just for the protection of the persons beneficially interested in such
land, estate, or interest, or in the proceeds thereof, and upon such order
being deposited with the Eecorder oi Titles, he shidl make such entries and
perform such acts as in accordance with the provisions of this Act may be
necessary for the purpose of giving effect to such order.

70. The registered proprietor of any land, estate, or interest, under Powen of
the provisions of this Act, may authorise and appoint any person to act for **^"^
him, or on his behalf, in respect to the transfer or other dealing with such

land, estate or interest, in accordance with the provisions of this Act, by
executing a power in any form heretofore in use for the like purpose, or in
Form I of the Schedule hereto, and a duplicate or an attested copy thereof
shall be deposited with the Becorder of Titles, who, after comparing the
same, shall enter in the Begister Book, a memorandum of the particulars
therein contained, and of the date and hour of its deposit with mm. (Be
Woods, 95. N. 69, 74 ; Z. 150 ; Q. 61-107, 62-104 ; S. 155, 156 ; V. 66, 13, 14.)

7L The Becorder of Titles upon the application of any registered Begi«tr»tioii
proprietor of land under the provisions of this Act, shall &;rant to such ^^l^^^
proprietor a registration abstract in the Form K in the Schedule hereto, J^^^xh^
enaolinghim to transfer, or otherwise deal with his estate or interest in such iLutaof the
land, at any place without the limits of the said colony, and shall, at the ^^^^^°J
same time, enter in the Begister Book a memorandum recording the issue of
such registration abstract, and shall endorse on the grant, certificate of title,
or other instrument evidencing the title of such applicant proprietor, a like
memorandum, and from and after the issuing ot any such registration
abstract no transfer or other dealing in any way affecting the estate or
interest in respect of which such registration abstract is issued shall be
entered in the Kegister Book until such abstract shall have been surrendered
to the Becorder of Titles to be cancelled, or the loss or destruction of such
abstract proved to his satisfaction. (N. 70 ; Z. 129 ; Q. 61-8, 101, 106 ; V.
66-121, 122.)

72. Whenever any transfer, or other dealing, is intended to be transacted Mode of
under any such registration abstract, a memorandum of transfer, or such ^1^^^
other instrument as the case may require, shall be prepared in duplicate in ^^J^^
form hereinbefore appointed, and shall be produced to some one of the *
persons hereinafter appointed as persons before whom the execution of
instruments without the limits of tne said colony may be proved, and upon
memorial of such instrument being entered upon the registration abstract,
and authenticated bv the signature of such authorised person as aforesaid,
in manner hereinbeiore directed for the entry of memorials in the Begister



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266 TASMANIAN EEAL PBOPEBTT ACT— No. 1.

Book, such instrumeDt sliall be held to be registered, and such transfer or
other dealine; shall be as ralid and binding to all intents as if the same had
been entered in the Eegister Book by the Eecorder of Titles, and whenever
a memorial of any instrument which has not been endorsed upon the instru-
ment evidencing title to the estate or interest intended to be dealt with has
been entered upon the registration abstract, such authorised person as
aforesaid, shall record the like memorial on the duplicate grant, certificate
of title, lease, or other instrument, evidencing title as aforesaid, and the
certificate of registration endorsed on the instrument of which the memorial
has been so entered, and signed by such authorised person, and sealed with
his seal, shall be received in all courts of law or equity as conclusive
evidence that such instrument has been duly registered.

^'^^^^t^ 73. Upon the delivery of any registration abstract to the Eegistrar-

▼07 of rel General, he shall record in the Eegister Book, in such manner as to preserve

fSSiMBtto ^^^^ priority, the particulars of every transfer or other dealing recorded

UieBeoor. thoreou, and shall file in his ofiBce the duplicates of every memorandum of

d«r of Title* tpg^ngf^p qj, other instrument executed thereunder, which may for that

purpose be delivered to him, and shall cancel such abstract, and note the

fact of such cancellation in the Register Book, and if a freehold estate in

such land, or in any part thereof, be transferred, the grant or certificate of

title shall be delivered up to the Becorder of Titles, who shall thereupon

proceed as is hereinbefore directed for the case of the transfer of an estate

of freehold. (Ua: parte Folk, 170 ; re FykeH, 171. N. 73, 77 ; Z. 166,

131 ; Q. 61-87, 106 ; T. 189 ; V. 66-108.)

i^eddin(j 74^ Upon proof at any time, to the satisfaction of the Eecorder of

trati^'*^' Titles, that any registration abstract is lost, or so obliterated as to be useless

iSrt'*^ ^ *^^ ^^^ *^® powers thereby given have never been exercised, or if they

have been exercised, then upon proof of the several matters and things

that have been done thereunder, it shall be lawful for the Eecorder of Titles

as circumstances may require, either to issue a new registration abstract, as

the case may be, or to direct such entries to be made m the Eegister Book,

or such other matter or thing to be done as might have been made or done

if no such loss or obliteration had taken place.

iteToomtton 75. The registered proprietor of any land in respect of which a power

ftttora«7 ^ of attorney has oeen issued may, for the purpose of revoking such power,
execute an instrument in the Form L. of the Schedule hereto, and the
Eecorder of Titles shall, except in any case where a registration abstract is
outstanding, enter the particulars thereof in the Eegister Book, and shall
record thereon the date and hour in which such entry was made, and from
and after the date of such entry the Eecorder of Titles shall not giro effect
to any memorandum of transfer, or other instrument executed pursuant to
such power of attorney, and if the holder of such power shall neglect or
refuse to surrender the same to such proprietor or his agent exhibiting such
revocation order, he shall be guilty of a misdemeanour, and on conviction
thereof shall forfeit and pay a sum not exceeding one hundred pounds,
unless it shall be made to appear to the satisfaction of the court before
whom the case may be tried, that the powers given therein had been exercised
prior to the presentation of such revocation order. (N. 74- ; Q. 61-108 ;
S. 167.)

JSS*^" 76. Upon the bankruptcy or insolvency of the registered proprietor

^^ptoj of any land, estate, or interest under the provisions of this Act, the
Vvaaj * assignees of such bankrupt or insolvent shall be entitled to be registered



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TASMANIAN EEAL PEOPEETT ACT— No. I. 267

as proprietors in respect of the same ; and the Eecorder of Titles, upon
the receipt of an office copy of the appointment of such assignees, accom- ^

panied by an application in writing unaer their hand to be so registered in
respect to any land, estate, or interest of such bankrupt or insolvent therein
specified and described, shall enter in the Eegieter Book, upon the folium
constituted by the grant or certificate of title of such land, a memorandum upon entry
notifying the appointment of such assignees, aad upon such entry being ^?^g.
made such assignees shall be deemed and taken to be registered proprietors nee« to bo
of the estate or interest of such bankrupt or insolvent in such land, and r^tored
shall hold the same subject to the equities upon and subject to which the proprietow
bankrupt or insolvent held the same; but for the purpose of any dealings Bat to hold
with such land, estate, or interest under the provisions of this Act, such JJ^^^*^
assignees shall be deemed to be absolute proprietors thereof. (Pannan v.
Fannan, 18 ; Kickham v The Queen, 47 ; ex parte Bond, 89, 90. N. 75 ; Z.
119 ; Q. 61-86; S. 71-3, 171, 171-8; V. 85-64, 66-107.)

77. Upon the bankruptcy or insolvency of the registered proprietor of Mort^ftgee
any lease subject to mortgage under the provisions of this Act the Eecorder JoidtotSJSt
of Titles, upon the application in writing of the mortgagee, accompanied by ofMimoi.
a statement in writing signed by the assignees of such bankrupt or insolvent ^^ ^^^
certifying their refusal to accept such lease, shall enter in the Register Book tobeentored
the particulars of such refusal, and such entry shall operate as a foreclosure, ferae of the
and the interest of the insolvent in such lease shall tnereupon vest in such ^«*^
mortgagee ; and if such mortgagee shall neglect or decline to make such
application as aforesaid, the Eecorder of Titles, upon application by the

lessor, and proof of such neglect or refusal and oi the matters aforesaid,
shall enter m the Eegister Book notice of the refusal of such assignees to
accept such lease, and such entry shall operate as a surrender of such
lease. {Wildash v. Hutchison, 132. Q. 61-55 ; S. 173 ; V. 66-107.)

78. The Recorder of Titles, upon the production of the register or Marriage of
other sufficient proof of the marriage of a female registered proprietor of p^ti* to*be
any land, estate, or interest under the provisions of this Act, accompanied oertiaed to
by an application signed by such female proprietor to that effect, shall enter ornSes
on the Eegister Book, and also upon the certificate of title or other instru- p^j^„j,^„
ment evidencing the title of such female proprietor, when produced to him to be entered
for that purpose, the name and description or h^r husband, the date of the Book ^don
marriage, and where solemnized, the oate and hour of the production to him the instra.
of the register or other sufficient evidence of such marriage. (Be ByJcett, Jioinir tlue
171. N. 77 ; Z. 165 ; Q. 61-87 ; S. 189, 213. See Sec, 36 of 1886 Act,)

79. Whenever any mortgage, encumbrance, or lease affecting land Transmia.
under the provisions of this Act, shall be transmitted in consequence of the "on^**JaJSe
will or intestacy of the registered proprietor thereof, probate, or an office of deceased
copy of the will of the deceased proprietor, or letters of administration, or P'°p"®***'
the order of the Supreme Court authorising the Curator of Intestate Estates

to administer the personal estate of the deceased proprietor of such estate
or interest, as the case may be, accompanied by an application in writing
from the executor, administrator, or Curator, claiming to be registered as
proprietor in respect to such estate or interest, shall be produced to the ^J^ ^^ ^
Eecorder of Titles, who shall thereupon enter in the Eegister Book and on bate, or ^
the lease or other instrument evidencing title to the estate or interest l^^i^
transmitted, the date of the will and of the probate or of the letters of ^ or order
administration or order of the Supreme Court as aforesaid, the date and be p^L^



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268 TASMANIAN EEAL PEOPBETT ACT— No. 1.

hour of the production of the same to him, the date of the death of such
proprietor, when the same can be ascertained, with such other particulars
as he may deem necessary ; and upon such entry being made the executors
or administrators, or the Curator of Intestate Estates, as the case may be,
shall be deemed to be registered proprietors, or proprietor of such mori^g;age,
encumbrance, or lease, and the Itecorder of Titles shall note the fact of
such registration by memorandum under his hand on the letters of adminis-
tration, probate, or other instrument as aforesaid. (Be Oraigy 76. N. 78 ;
Q. 61-88; V. 66-106.)

Heir^kt-Uw 80. The hoir-at-law, devisee, tenant by the courtesy, or other person

^^]^^ claiming any estate of freehold in the land of a deceased proprietor, may
*f TiJS to ™*^® application in writing to the Eecorder of Titles, to be registered as
beregifltored proprietor of such estate ; and shall deposit with him the certificate of the
asprqprietor death, the wiU, or an oflBce copy or probate of the will of the deceased
proprietor, or any settlement under which such applicant claims ; or in the
case of intestacy, such evidence of heirship as he may be enabled to
produce ; and such application shall state the nature of every estate or
interest held by other persons at law or in equity in such land within the
applicant's knowledge, and that he verily believes himself to be entitled to
the estate in such land, in respect to which he applies to be registered ; and
the statements made in such application shall be verified by the oath or
statutory declaration of such applicant : Provided always, that the heir-at-
law, devisee, or other person making such application, shall surrender the
existing grant or certificate of title of the land, in respect to which he
claims to be registered as proprietor, prior to his being entered in the
Begister Book, as hereinafter mentioned. {Be McCarthy^ 19. See Sec, 18
of ISS6 Act)

AppUoation 81. The Bocorder of 'J itles shall refer such application to the solicitors

fy^^u, for examination and report, and thereafter shall submit the same for the
^••j^Titiei consideration of the Lands Titles Commissioners, who may either reject
■ionen Buch application altogether, or direct the Eecorder of Titles to cause notice
Notice thereof to be published once in the Hohort Town Gazette, and three times
thereof to be in at loast ouo newspaper published in the City of Hobart Town and Town
^^0^^$ ^^ Launceston, and to give such further publicity to such application as
they may direct, whether by advertisement or the serving or posting of
e^i^^on notices, and shall limit and appoint a time not less than one month from the
^^^^ date of the advertisement in such Gazette, upon or after which the Eecorder
Oommift- of Titles may, unless he shall in the interval have received a caveat for-
pUoSttobe bidding him so to do, register such applicant as proprietor of such land, by
^red in entering in the Begister Book, the particulars of the transmission through
B^Scl^t to which such applicant claims, and by issuing to such applicant a certificate of
to tte*^SSi *^*^® ^^^ *^® ^^ ®^ transmitted ; and the Lands Titles Commissioners may
to which the direct any caveat to be entered by the Eecorder of Titles for the protection
^Uwr^^^ of the interests of such other persons (if any) as may be interested in such
land: Provided always that the person registered, consequent on such
direction of the Lands Titles Commissioners, or any executor or adminis-
trator, or the Curator of Intestate Estates, when registered in respect of
any mortgage, encumbrance, or lease, shall hold such land, estate, or interest
in trust for the persons and purposes to which it is applicable by law, but
for the purposes of any dealing with such land, estate, or interest under
the provisions of this Act, he shall be deemed to be absolute proprietor
thereof. (Cdlonial Bank v. Fie, 107. N. 80 ; V. 66-53, 64.)



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TASMANIAN EEAL PEOPEETT ACT— No. 1. 269

82. Any settlor of land under the provisions of this Act, transferring CaTMtmay
such land to be held by the transferee as trustee, or any beneficiary, or ^® ^^^^
other person, claiming estate or interest in any such land under any unre-
gistered instrument, or by devolution in law or otherwise may, by caveat, in

the Form M. of the Schedule hereto, or as near thereto as circumstances will
permit, forbid the registration of any instrument affecting such land, estate,
or interest, either absolutely or until after notice of the intended dealing:
given to the caveator as may be required and enjoined in such caveat ; and
every such caveat shall state the name and address of the person by whom
or on whose behalf the same is lodged, and shall contain a sufficient descrip-
tion to identify the land and the estate or interest therein, claimed by the
caveator, or by the person on whose behalf the caveat is lodged ; and, except
in case of caveats lodged by order of the Supreme Court, or by the
Becorder of Titles, as hereinbefore provided, shall be signed by the caveator,
or by his solicitor, known agent, or attorney ; and every notice relating to
such caveat, or to any proceedings in respect thereof, if served at the
address mentioned in such caveat, or at the office of the solicitor, known
agent, or attorney who may have signed the same, shall be deemed to be
duly served ; and every such caveat may be withdrawn by the caveator.

83. Upon the receipt of any caveat, the Becorder of Titles shall notify Notio© of
the same to the person against whose application to bring land under the <^^<^ ^ ^
provisions of this Act, or to be registered as proprietor, or, as the case may ^^^

De, to the registered proprietor against whose title to deal with land under
the provisions of this Act, such caveat has been lodged ; and such applicant
proprietor or registered proprietor may, if he think fit, summon the caveator,
or the person on whose behalf such caveat has been lodged, to attend before OaTeator
the Supreme Court or a judge thereof to show cause why such caveat should J5|2i^oned
not be removed ; and it shall be lawful for such court or judge, upon proof to thow
that such person has been summoned, to make such order in the premises, ^^^
either ea parte or otherwise, as to such court or judge may seem fit ; and Bxoeptin
except in the case of a caveat lodged by a settlor, or by or on behalf of a JJ^JJ^^*
beneficiary claiming under any will or settlement, or by the Becorder of i»pm after
Titles for the protection of incapable persons, or for the prevention of fraud, notioTgiTen
as hereinbefore prescribed, every such caveat lodged against a registered to caveator
proprietor shall, unless an order to the contrary be made by the Supreme
Court, or a judge thereof, be deemed to have lapsed upon the expiration of
fourteen days after notice given to the caveator that such registered pro-
prietor has applied for the registration of any transfer or other dealing with
such land, estate, or interest. {Saddington v. JBLocJcetty 72. N. 82 ; Z. 143 ;
Q. 61-99 ; S. 191-4 ; V. 166-117. See note to See. 24, ante.)

84. So long as any caveat shall remain in force prohibiting the transfer ^TiS^to*
or other dealing with land, the Becorder of Titles shall not enter in the Begtstrr
Eegister Book any memorandum of transfer or other instrument purporting STiJdaiJ;'
to transfer or otherwise deal with or affect the land, estate or interest, in '^Pf'* ^
respect to which such caveat may be lodged. oontin^^



Online LibraryAustraliaThe land transfer laws of Australasia: being the full text with side notes ... → online text (page 48 of 83)