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

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85. Any person lodging any caveat with the Becorder of Titles without comoenaa-
reasonable cause, shall be liable to make to any person who may have sus- {i^^^j]^"
tained damage thereby such compensation as may be just, and such compen- without rea-
sation shall be recoverable in an action at law, by the person who has ^"^^^^
sustained damage from the person who lodged the caveat. (Bonnin v.
Andrew, 85. N. 84 ; Z. 182 ; Q. 61-108 ; Y. 66, 120, 144.)

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Proprietor 86. The registered proprietor of any land, or of any estate or interest

SStliSintiy ^^ ^^^^ under the provisions of this Act, whether of the nature of real or

in himself personal property, may, by any of the forms of the instruments of transfer

JdfhSS*" provided by this Act, modified as may be necessary, transfer such land,

limiting any estate, or interest, or any part thereof, to his wife, or if such registered

on^ wiy proprietor be a married woman, it shall be lawful for her to make such

assignment transfer to her husband, or it shall be lawful for such registered proprietor

to make such transfer to himself jointly with any other person or persons,

or to create or execute any powers of appointment, or to limit any estates

whether by remainder or otherwise, without limiting any use, or executing

any re-assignment ; but upon the registration of such transfer, the said land,

estate, or interest, shall vest in such registered proprietor jointly with any

other person or persons, or in the person taking under such limitation, or in

whose favour any power may have been executed, or otherwise, according to

the intent and meaning appearing in such instrument, and thereby expressed.

(N. 85, 109; Q. 61-82 ; S. 111.)

Persons re- _, ii»i.. •*

^steredas 87. Two or more persons who may be registered as joint proprietors of

prietOTs'to A^ estate or interest in land under the provisions of this Act shall De deemed
be joint to bo entitled to the same as joint tenants, and in all cases where two or
*°^ more persons are entitled as tenants in common to undivided shares of or in
common to ^^^ land, such persoEs shall be bound to receive separate and distinct
reoei^e°eaoh certificates of title or other instrument evidencing title to such undivided
Je^flSte of sliares. (See Sec, 37, o/Eeal Property Act, 1886.)


Begistration 88. When any person is registered as joint proprietor with his wife of
of BorriTor an ostato iu fee-simple in right of his wife, if such person die in the lifetime
priitors^'^ of his wife, and before any transfer of such estate, or if such wife die in the
lifetime of her husband, and the said husband is entitled as tenant by the
courtesy, or upon the death of any person registered together with any other
person as joint proprietor of the same estate or interest in any land, or when
the life estate, in respect to which any certificate of title has been issued,
has determined and the estate next registered in remainder or reversion has
become vested in possession, or the person to whom such certificate of title
has been issued, has become entitled to the said land for an estate in fee-
simple in possession, the Eecorder of Titles may, upon the application of the
person entitled, and proof to his satisfaction of any such occurrence as
aforesaid, register such person as proprietor of such estate or interest, in
manner hereinbefore prescribed for the registration of a like estate or
interest upon a transfer or transmission. {JSx parte Locke, 43. N. 86 ; Z.
64; Q. 61-40; S.74; V. 66-44.)

Bemainder-] 89- Whenever a certificate of title has been issued in respect of a li/e

wSrefoner estate in any land, any person entitled, in reversion or remainder, to such
mar appi/ land may apply to be registered as so entitled ; and the Recorder of Titles
terodUSJoh ^^^ causo tne title of such applicant to be investigated by the solicitors,
?|^« and shall thereafter submit the same for consideration by the Lands Titles
tiUe of^e**^ Commissioners, who may either reject such application altogether, or direct
tenant for j^\^q applicant to bo registered in accordance therewith either immediately,
or, unless caveat be lodged, after such notice or advertisement, and within
to?i*re^°° such period as they may appoint ; and the Eecorder of Titles shall obey such
ferred to direction or any order of the Supreme Court in the premises. {MilUr v.
^i™*" Stewart, 172. N. 88 ; Z. 18 ; Q, 61-47, 36 ; V. 66-54 ; S. 188. See note to

sionen g^c^ Sl^ cmte.)

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90. Every Covenant and power to be implied in any instrument by implied
virtue of this Act, may be negatived op modified by express declaration in J^Ty b?"
the instrument, or endorsed thereon ; and in any declaration in an action modified or
for a supposed breach of any such covenant, the covenant alleged to be °®8»tiTod
broken may be set forth ; and ifc shall be lawful to allege that the party
against whom such action is brought did so covenant precisely in the same
manner as if such covenant had been expressed in words in such memorandum J^^^t,
of transfer or other instrument, any law or practice to the contrary to be several
notwithstanding ; and every such implied covenant shall have the same force "^*^®^^<^*
and effect to be enforceid in the same manner as if it had been set
out at length in such instrument, and where any memorandum of
transfer or other instrument in accordance with the provisions of this Act,
is executed by more parties than one, such covenants as are by this Act
declared to be implied in instruments of the like nature, shall be construed
to be several and not to bind the parties jointly. {Bucknall v. Beid, 146.)

91* The Eecorder of Titles shall have and use a seal of office bearing seai of office
the impression of the Eoyal Arms of England, and having inscribed in the J^cdvedin
margin thereof the words " Eecorder of Titles, Tasmania ;" and every ayidenoe
instrument bearing the imprint of such seal, and purporting to be signed or
issued by the Eecorder of Titles, or by one of his deputies, shall be received
in evidence, and shall be deemed to be signed or issued by or under the
direction of the Eecorder of Titles without further proof, unless the contrary
be shown. (Z. 9 ; Q. 61-8 ; S. 21 ; V. 85-52.)

92. The Eecorder of Titles may, with the consent of the Governor of Beoorder
the said Colony from time to time, make such alterations in the several forms ^^^^j.
of instruments prescribed in the Schedule hereto as he may deem requisite ; tion of
and shall cause every such form to be stamped with his seal, and to be ^®^^**''
supplied at the General Eegistry Office free or charge, or at such moderate forms of
prices as he may from time to time fix, or may license any person to print J[JJ*>^^«o*»»
and sell the same ; and every such form, if made in a form purporting to be

a proper form, and to be sealed as aforesaid, shall be taken to be made in
the legally authorised form, unless the contrary is proved. {Barher v. Weld^
81. N. 90 ; S. 220-7 ; V. 66-127.)

93. The Eecorder of Titles, with the consent of the other Lands Titles Beoorder of
Commissioners, in case they shall see reasonable cause for so doing, may dif!^Q^^^
dispense with the production of any grant, certificate of title, lease, or other with dupH-
instrument, for the purpose of entering the memorial by this Act required SSJufl^tei
to be entered upon the transfer or other dealing with land under the pro- 2tiS*^L*Si
visions of this Act ; and upon the registration of such transfer or other mento^in
dealing the Eecorder of Titles shall notify in the memorial in the Eegister ««'^**^» <»^
Book, that no entry of such memorial has been made on the duplicate grant,

or other instrument ; and such transfer or other dealing shall thereupon be
as valid and effectual as if such memorial had been so entered : Provided
alw^s, that, before registering such transfer or other dealing, the Eecorder
of Gatles shall, in such case, require the transferor or other dealing, to
make an affidavit that such grant or instrument has not been deposited as
security for any loan, and shall give at least fourteen days' notice of his g^j ^^^^
intention to register such dealing in the Hohart Tovm Gazette, and in at ^ be given.
leaflt one newspaper published in the City of Hobart Town and Town of terk^aSy"'
Launceston. (N. 78-7, 91 ; Z. 30; Q. 61-21 ; S. 220-9, 112 ; V. 66-180, ^e^Hng

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BftiMby 94. Whenever any estate or interest in land, under the proyisions of

Sdwrorfer ^^^ ^^^f ^^^ ^^ 8old by the Sheriff under any writ or shall be sold under any
of Bapreme direction, decree, or order of the Supreme Court, or whenerer any order of
^^^ such court shall be made, authorising the Curator of Intestate Estates to
take the charge of the real estate of a deceased proprietor, the Becorder of
Titles, on being served with an office copy of the writ, direction, decree, or
order, as the case may be, shall enter in the Begister Book and also upon
the instrument evidencing title to the said estate or interest, if produced for
that purpose, the date of the said writ, direction, decree, or order, and the
date and hour of the production thereof ; and after such entry as aforesaid
the Sheriff or person authorised by the Supreme Court shall do such acts
and execute such instruments as under the provisions of this Act may be
necessary to transfer or otherwise to deal with the said estate or interest :
Provided always, that unless and until such entry has been made as aforesaid
no such writ shall bind or affect any land under the provisions of this Act
or any estate or interest therein, nor shall any sale or transfer by the Sheriff
be valid as against a purchaser or mortgagee, notwithstanding such writ
may have been actually in the hands of the Sheriff at the time of any

Eurchase or mortgage, or notwithstanding such purchaser or mortgagee may
ave had actual or constructive notice of the issue of such writ. (Kickham
V. me Queen, 47 ; re Wm, Wadham, 114 ; j^eal v. Adams, ISO ; Gilee v.
Leaser y 150 ; in re James, 193 ; Beath v. Anderson, 192 ; Bobertson v. EeUh,
195 ; re Benn and Oriee, 200; re A. Bosquet, 202. N. 92, 97 ; S. 71-2,
105; V. 66, 106.)
8e«iofOoiw 95, A Corporation, for the purpose of transferring or otherwise

rab!titat«d dealing with land under the provisions of this Act, in lieu of signing the
fwrtgnft. proper instrument for such purpose prescribed, may affix thereto the
common seal of such Corporation, with a certificate that such seal was
affixed by the proper officer, verified by his signature. (Q. 61-1 L4 ; Y .

96 to 08. [Eepealed by Sec. 37, Eeal Property Act, 1886.]

Uponiiir- 99, Upon the application of any registered proprietor of land held

eSstSg** under separate grants or certificates of title, or under one grant or certificate,

sjjgjjj^^ and the delivering up of such grant or grants, certificate or certificates of

of tiUe, title, it shall be lawiul for the Eecorder of Titles to issue to such proprietor

tor £?y "*" * single certificate of title for the whole of such land, or several certificates,

obtoin ft each containing portion of such land in accordance with such application,

fl^^OT^ and as far as the same may be done consistently with any regulations at the

iSdSd*^ time being in force respecting the parcels of land that may be included in

therein one certificate of title ; and upon issuing any such certificate of title, the

Becorder of Titles shall cancel the grant or certificate of title of such land so

delivered up, and shall endorse thereupon a memorandum setting forth the

occasion of such cancellation, and referring to the certificate of title so

issued. (Kearton v. Bichardson, 125. N. 97 ; Z. 135 ; Q. 61-98, 94, 4 ; 8.

78 ; V. 66-55.)

proririon in 100. lu the oveut of the grant or certificate of title of land under the
weeofioit proyigions of this Act, being lost, mislaid, or destroyed, the proprietor of
such land, together with other persons, if any, having knowledge of the
circumstances, may make a declaration before the Becorder of Titles or
before any of the persons hereinbefore appointed, as persons before whom
the execution of instruments may be proved, stating the facts of the case,
the names and description of the registered owners, and the particulars of

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all mortgages, encumbrances, or other matters affecting such land, and the
title thereto, to the best of declarant's knowledge and belief ; and the
Recorder of Titles, if satisfied as to the truth of such declaration, and the
bona Jide$ of the transaction, maj, with the consent of the other Lands
Titles Commissioners, issue to such applicant a proyisional certificate of
title of such land, which proyisional certificate shall contain an exact
copy of the original grant or certificate of title bound up in the
Register Book, and of every memorandum and endorsement thereon,
and shall also contain a statement of the circumstances under which
such provisional certificate is issued; and the Eecorder of Titles shall
at the same time enter in the Begister Book notice of the issuing of
Buch provisional certificate, and the date thereof, and the circumstances
under which it was issued, and such provisional certificate shall be available
for all purposes and uses for which the grant or certificate of title so lost or
mislaid would have been available, and as valid to all intents as such lost
grant or certificate : Provided always, that the Becorder of Titles before
issuuig such provisional certificate, shidl give at least fourteen days* notice
of his intention so to do, in the Hohari Town Ghzette, and at least in one
newspaper published in the City of Hobart Town and Town of Launceston.
(N. 98; Z. 47, 75 ; Q. 61-117 ; 8. 79; V. 66-181, 86-60.)

101 and 102. [Bepealed by Sec. 11, Beal Property Act, 1868.]

103. Any proprietor sub -dividing any land under the provisions of this Proprietor
Act, for the purpose of selling the same in allotments as a township, shall SIp*^****
deposit with the Recorder of Titles a map of such township : Provided that

such map shall exhibit, distinctly delineated, all roads, streets, passages,
thoroughfares, squares, or reserves appropriated or set apart for public use,
and also all allotments into which the said land may be divided, marked with
distinct numbers or symbols ; and every such map shall be certified as
accurate by declaration of a Government Surveyor before the Becorder of
Titles or a Justice of the Peace. (N. 100, 101 ; Q. 61-119 ; S. 100, 220-8 ;
V. 66, 184.)

104. The Becorder of Titles may require the proprietor applying to B«oorder of
have any land brought under the provisions of this Act, or desiring to ™5w"^
transfer or otherwise to deal with the same or any portion thereof, to m<^p *obe
deposit at the Begistry Office a map or plan of such land, certified by a •p*^*^
G-ovemment Surveyor in manner aforesaid ; and if the said land, or the
portion thereof proposed to be transferred or dealt with, shall be of less

area than one statute acre, then such map or plan shall be on a scale not
less than one inch to two chains, and if such land or the portion thereof
about to be transferred or dealt with, shall be of greater area than one
statute acre but not exceeding five statute acres, then such map or plan
shall be upon a scale not less than one inch to five chains, and if such land
or the portion thereof, as aforesaid, shall be of greater area than five statute
acres but not exceeding eighty statute acres, then such map or plan shall
be upon a scale of not less than one inch to ten chains, and if such land
or the portion thereof as aforesaid, shall be of greater area than eighty
statute acres, then such map or plan shall be upon a scale of one inch to
twenty chains ; and if such proprietor shall neglect or refuse to comply
with such requirement, it shall not be incumbent on the Becorder of
Titles to proceed with the bringing of such land under the provisions of
this Act, or with the registration of such transfer or lease : Provided

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always, tliat subsequent sub-divisions of tbe same land may be delineated
on tne map or plim of the same so deposited, if such map be upon a
sufficient scale in accordance with tbe proyisions herein contained, and
the correctness of the delineation of each such sub-division shall be
acknowledged in manner prescribed for the case of the deposit of an
original map.

^S^^L^ 105. The Eecorder of Titles, upon payment of the fee specified in Uie

tndMdlSi Schedule P. hereto, shall furnish to any person applying for the same, a

JJ^Jj^'y certified copy of any registered instrument affecting land under the pro-

Recorder of visions of this Act, and every such certified copy signed by him, and sealed

toh!*n^^ with his seal, shall be receiv^ in evidence in any Court of Justice, or before

SSto"* any person having by law, or by consent of parties, authority to receive

evidence as primd facie proof of all the matters contained or recited in or

endorsed on the original instrument. (Chuholm v. Capper, 86. N. 102 ; Z.

89; Q. 61-121; V. 66-141.)

2JJ^ 106. Any person may, u^on payment of a fee specified in Schedule P.

hereto, have access to the Kegister Book, or any registered instrument, for
the purpose of inspection, during the hours and upon the days appointed
for search. (Q. 61-121.)

j^^^ 107. The Eecorder of Titles shall not receive any application for
brining land under the provisions of this Act, or any instrument purport-
ing to deal with or affect any land under the provisions of this Act unless
there shall be endorsed thereon a certificate that the same is correct for the
purposes of this Act, signed by the applicant or party claiming under or in
respect of such instrument, or by his solicitor and any person who shall
falsely or negligently certify to the correctness of any such application or
other instrument, shall incur therefor a penalty not exceeding fifty nounds.
reSrtenng' Provided always, that such penalty shall not prevent the person who may
fart"**«ito ^^^® sustained any damage or loss in conpcquence of error or mistake in any
'^^ such certified instrument, or any duplicate thereof from recovering damages
against the person who shall have certified the same. (N. 104; Q, 61-139;
S. 273, 232. See Sec. 30, 1886 Act)

SS^^ 108, It shall be lawful for the Eecorder of Titles to lecover such fees

as shall be appointed by the Governor of the said Colony, by and with the
consent of the Executive Council, not in any case exceeding the several
fees specified in the Schedule hereto marked P. (Z. 46 ; Q. 61-140 ; S. 22 ;
V. 85-76.)

^Border of 109. The Eccorder of Titles shall keep a correct account of all such

xnoMji^Sto sums of money as shall be received by him in accordance with the provisions
mSiorSiiBt ^^ *^^® ^^^* *°^ shtM pay the same into the Public Treasury of the said
•ocoimto Colony, at such times, and shall render accounts of the same to such per-
sons, and in such manner, as may be directed in any regulations that may
for that purpose be prescribed by the G-ovemor of the said Colony by and
with the advice of the Executive Council thereof ; and the Eecorder of
Titles shall address to the said Treasurer requisitions to pay moneys received
by him, or by the said Treasurer, in trust or otherwise, on account of absent
mortgagees or other persons entitled in accordance with the provisions of
this Act, which requisitions, when proved and audited in manner directed by
any such regulations framed as aforesaid at the time being in force in the
said Colony, and accompanied by warrant for payment of the same under
the_hand oi the G-overnor, countersigned by the Colonial Secretary thereof ,

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the said Treasurer shall be bound to obey, and all fines and fees received Parties
under the provisions of this Act, except fees payable to the Lands Titles S^^by
Commissioner for the brining of land under the operation of this Act, shall Tremsorer
be carried to account by the said Treasurer as general revenue. (Ooker v. SSS^Sr*^
Spence, 5. N. 106,109; Q. 61-141; S. 23 ; V. 66-142.)

110. If) upon the application of any proprietor to have land of which Proprietor
he is seized brought under the provisions of this Act, or to have any dealing SSJ^Jr^
OP transmission registered or recorded, or to have any certificate of title, Titiee to
registration abstract, foreclosure order, or other instrument issued, or to i^I^iSSX^
have any act or duty done or performed which by this Act is prescribed to

be done or performed by the Recorder of Titles, the Eecorder of Titles
shall refuse so to do, or if such proprietor shall be dissatisfied with the
direction upon his application given by the Lands Titles Commissioners, as
hereinbefore providea, it shall be lawful for such proprietor to require the
Eecorder of Titles to set forth in writing under his hand the grounds of his
refusal, or the grounds upon which puch direction was given, and such
proprietor may if he think fit, at his own costs, summon the Eecorder of
Titles to appear before the Supreme Court to substantiate and uphold the

f rounds of his refusal, or of such direction as aforesaid, such summons to
e issued under the hand of a Judge of the said Court, and served upon the
Eecorder of Titles six clear days at least before the day appointed for hear-
ing the plaint o£ such proprietor, such objections shall be heard by the said
Court upon motion, and upon such hearing, the Eecorder of Titles or his
counsel shall have the right of reply, and the said Court shall, if any ques-
tion of fact be involved, direct an issue to be tried to decide such fact, and
the said Court shall thereupon make such order in the premises as in their
judgment the circumstances of the case may require, and the Eecorder of Bzpenae to
Titles shall obey such order ; and all expenses attendant upon any such SjpiSSS^
proceedings shall be borne and paid by the applicant or other person prefer-
ring such plaint, unless the Judge or Court shall certify that there were no
probable grounds for such refusal or direction as aforesaid.

111. It shall be lawful for the Eecorder of Titles, by direction of the Power to
Lands Titles Commissioners, whenever any question shall arise with regard ^SJto' **'
to the performance of any of the duties or the exercise of any of the J^g ~^
functions by this Act conferred or imposed upon him, or them to state a cour?o?™*
case for the opinion of the Supreme Court, and thereupon it shall be tobe\J5JS*
lawful for the said Court to give its judgment thereon, and such judgment

shall be binding on the Eecorder of Titles and Lands Titles Commissioners

112. Whenever any person interested in land under the provisions of ^«cior of
this Act shall appear to the Supreme Court to be a trustee of such land, ^ny oat
within the intent and meaning of the " Trustee Acts," and any order shall g'^er of
be made in the premises by the Supreme Court, or a judge thereof, the ooartrest.
Eecorder of Titles, on being served with an oflSce copy of such order, shall ^^^*
enter in the Eegister Book, and on the grant or other instrument evidenc-

i;ig title to the said land, the date of the said order, the date and hour of
its production to him, and the name, residence, and description of the person
in whom the said order shall purport to vest the said land; and such person
shall thereupon be deemed to be the registered proprietor of such land ; and
unless and until such entry shall be made the said order shall have no effect
or operation in transferring, or otherwise vesting the said land.

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US* Whenever a person entitled to, or interested in land as a trostee
would be entitled under the last precedmg clause, to bring or defend anj
action of ejectment in his own name, for the recoyering the possession of
land under the proYisions of this Act, such person shall he bound to allow
his name to be used as a plaintiff or defendant in such action of ejectment
by any beneficiary or person claiming an estate or interest in the said land :
Provided neyertheless, that the person entitled or interested as such
trustee shall in eyery such case be entitled to be indemnified in like manner

Online LibraryAustraliaThe land transfer laws of Australasia: being the full text with side notes ... → online text (page 49 of 83)