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as a trustee would before the passing of this Act haye been entitled to be
indemnified in a similar case of his name being used in any such action or
proceeding by his eestuique trust, (National Bank y. National Mortgage and
Agency Company, 12 ; re Beattie, 53, 57; D'Alhrdyhill y. D'AlhrdyhiU^ 82;
Miller y. Stevoart, 172 ; 8i, George y. Burnett, 57, 175. N. 110 ; Q. 61-84,
68, 126 ; 8. 185 ; V. 66-63.)
PurohMer 114^ Except in the case of fraud, no person contracting or dealing

tor^^ro^ with, or taking, or proposing to take a transfer from the registered
g^2fj^ proprietor of any registered estate or interest shall be required, or in any
bjnotioe manner concerned to inquire or ascertain the circumstances in, or the
consideration for which such registered owner or any previous registered
owner of the estate or interest in question is, or was registered, or to see the
application of the purchase money, or of any part thereof, or shall be afEected
by notice direct or constructive of any trust or unregistered interest, any
rule of law or equity to the contrary notwithstanding, and the knowledge
that any such trust or unregistered interest is in existence shall not of
itself be imputed as fraud. (Be MeOarthy, 19 ; Boss v. Victoria Building
Society, 180 ; Miller v. Morrissey, 181 ; Beath v. Anderson, 192. N. 111.)

B«ci8tared 115. In any suit for specific performance brought by a registered

IJ^^roit proprietor of any land under the provisions of this Act, against a person

fOTtpemflo who not having notice of any fraud affecting the title of the vendor may

Fobe^^SSSed have Contracted to purchase such land, the certificate of title of sucn

to decree registered proprietor shall be held in every Court of Law or Equity, to be

conclusive evidence that such registered proprietor has a p;ood and valid title

to the land, and for the estate or interest therein mentioned or described.

(Re Thompson and Chipps, 27; George v. Australian Mutual Provident

Society, 56 ; Van Damme v. Bloxam, 105 ; Ashley v. Chok, 137 ; Ettershank

v. The Queen, 153 ; Butler v. Saddle Rill Mining Company, 163 ; OoleeJUn

V. Walker, 208. N. 115 ; Q. 61-96; V. 66-48.)

Mortgagee, X16. It shall be lawful for a mortgagee, as against a mortgagor, either

bra^. or before or after obtaining an order for foreclosure as hereinafter provided, or

m»7^o^in '^^ ^^ oncumbrancee, as against an encumbrancer, or for a landlord, as

poisesaioniii against a lessee or tenant, whenever the term shall have expired or default

^^'^^ **^ snail have been made in the payment of the interest, or rent, or annual

or principal sum secured by any memorandum of mortgage, encumbrance,

or lease tor the time specified by this Act, in each such case, or that may be

otherwise provided in any such instrument, whatever may be the value of

the land or the amount of the rent payable in respect thereof, or the amount

of any principal or annual sum charged thereon, and without any formal

demand or re-entry to apply to the Supreme Court or a judge thereof for

an order that possession oi the premises in respect of which such default as

aforesaid shall have been made, shall be given up to the applicant, and

thereupon it shall be lawful for the said Supreme Court or a judge thereof

to issue a summons directed to such mortgagor, encumbrancer, or lessee,



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TASMANIAN SEAL PEOPEETT ACT— No. 1. 277

calling upon him on a day and at a place to be named therein, to show
cause why the said Supreme Court or such judge thereof should not order
possession of such premises to be giren up by such mortgagor, encumbrancer
or lessee to the applicant, the service of which shaS, in the case of a
landlord against a lessee or tenant, stand in lieu of a demand and re-entry ;
and in the case of a mortgagee or encumbrancee against a mortgagor or
encumbrancer, shall stand in lieu of the notice by this Act required to be
given in such case ; and if the person entitled to redeem the said land,
or liable to the payment of such rent or annual sum shall, before the return
day of such summons, nay all the rent, interest, or annual sum in arrear or
principal sum due and the costs, the said summons shall be discharged ;
out if he shall not make such payment and shall not at the time
named in such summons show good cause why the premises should
not be recovered, then on proof of the service of the summons, if the
said mortgagor, encumbrancer, or lessee shall not appear thereto, and of
default having been made in payment of the rent, interest, or annual or
principal sum for the time specified by this Act or otherwise provided as
aforesaid before the plaint was entered, and in the case of a landlord
against a lessee or tenant that no sufficient distress was then found to be on
the premises to counteract such arrear, and of the plaintiff's power to enter,
and of the rent, interest, or annual sum being still in arrear, or principal
money due, the court or a judge thereof, may order that possession of the
premises mentioned in such summons be given by the mortgagor, encum-
brancer, or lessee to the applicant on or l^fore such day, not being less
than four weeks from the aay of hearing, as the court or a judge thereof
shall think fit to name, unless within that period all the rent, interest, or
annual sum in arrear, or principal money due, and costs be paid ; and if
such order be not obeyed, and such rent, interest, or annual or principal
sum and costs be not so paid, the court or a judge thereof shall, at the
instance of the applicant, upon proof of the service of such order or that
after diligent searcn made, the partr named therein cannot be found issue
a writ authorising and requiring the sheriff to give possession of the premises
to the applicant, every such warrant to bear date on the day next
after the last day named by the court or a judge thereof in the order
for the delivery of the possession of the premises, and to continue in force
for three months from such date and no longer ; and in the case of a
landlord against a lessee or tenant the applicant shall, from the time of the
execution of such writ, except as hereinafter provided, hold the premises
discharged of the tenancy. {Mudgway v. Davy and Buiek, 1 ; Sharpe v.
Hadleyy 3 ; Featherstone v. Sanlon, 4 ; Chomley v. Mrehrace ; 21 ; Oalloih
et uxor V. Schultz, 22 ; Bume v. Stewart^ 28 ; Coleman and Olarh v. Biria,
46 ; Pullen v. Thomfson ; 74 ; Franklin v. Ind^ 166 ; Otago Marhour Board
T. Speddiny, 165 ; ex parte Brown, 186 ; Bichnall v. Heyman$ony 188 ;
BoherUon v- Keith, 196 ; MoQeary v. Brodziak, 213. N. 60, 126 ; Z. 69.
See note to See, 11, ante,)

117. Nothing herein contained shall extend to bar the rieht of any Bi«ht ot
mortgagee or encumbrancee of any lease, or any part thereof, who snail not hd JSSj^Ju^
in possession, so as such mortgagee or encumbrancee shall and do, within six be bwred
months after the execution of such warrant, pay all rent in arrear and all
costs and damages sustained by such lessor or person entitled to the
remainder or reversion expectant on such lease, and perform all the
covenants and agreements which, on the part and behalf of the first lessee
are and ought to be performed. (^Bume v. Stetoart, 28 ; ex parte Bond, 89 ;



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278 TASMANTAN EEAL PBOPEBTT ACT— No. 1-

Smith V. Davyy 185 ; Orey v. Waisan, 162 ; MUrshankv. The Queen, 153 ;
Wilson y. iTtny, 166; Buckets y. Knahhe, 167, 168; Bou t. Permanent
Building Society, 180. 8. 118.)

oI^SS- 118, If the person haying right to redeem any mortgaged or encum-

dS^uir*' bered land shall, within the time hereinbefore mentioned before the return
pri^pai, day of such summons, pay to such mortgagee or encumbrancee or, in case of
mi^Mt, and j^jg refusal, shall tender in the open Court and shall pay to the Treasurer of
Court, and the said Colony all the principal money and interest due on such mortgage
£2ae£)*the ^r encumbranco, and costs; the moneys so paid to such mortgagee or
^MMurer, eucumbraucee, or to the treasurer as aforesaid, shall be deemed and taken
deemed a to be in full satisfaction and discharge of such mortgage or encumbrance ;
M •atiafiM- and the Recorder of Titles, upon the receipt of the said treasurer, accom-
panied by a certificate of the court, or a judge thereof, that such sum haa
been tendered and refused, shall proceed to discharge such mortgage or
encumbrance in the manner hereinbefore proyided for the case of a registered
mortgagee being absent from the colony.

hI?*S3^iwd) 110« ^h®^ the term and interest of any lessee or tenant shall haye

or been ' expired or shall haye been determined either by the landlord or the tenant by

bj*n^^^ a legal notice to quit, and such tenant or any person holding or claiming by,

^rtmay through, or Under him, shall neglect or refuse to deliver up possession

•ession^to'be accor£ngly, it shall be lawful for the landlord to enter a plaint in the court

^tiT ^^^^' ^^ manner aforesaid, and thereupon a summons shall issue ; and upon the

hearing of such summons the court may order tbat possession of the

premises mentioned in such summons be given by the defendant to tbe

plaintiff forthwith, and to issue a writ accordingly ; and, if the costs shall

not have been sooner paid, the court or a judge thereof shall likewise direct

execution for such costs to issue. {Equitable Building Company, 140 ;

Wadham y. Buttle, 165.)

moMtHe 120, Any such summons as aforesaid may be served by delivering tbe

serred same at the house or place of business of the defendant with some person
there of the apparent age of fourteen years ; and if the defendant cannot be
found, and his place of dwelling shall either not be known, or admission
thereto cannot be obtained for the purpose of serving such summons, a copy
of such summons shall be posted on some conspicuous part of the premises
sought to be recovered ; and such posting shall be deemed to be a good
service on the defendant.

Mortgagee 121. When default has been made in the payment of the interest or

Beco^%/<^ principal sum secured by memorandum of mortgage, for six calendar months,

'^iSmfot "° ^ registered mortgagee may make application, in writing, to the Becorder of

foreoioeure Titles for au order for foreclosure ; and such application shall state that

such default has been made as aforesaid, and that the land, estate, or

interest mortgaged or encumbered has been offered for sale at public auction

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

provided, and that the amount of the highest bid at such sale was not

suflScient to satisfy the money secured by such mortgage or encumbrance,

together with the expenses occasioned by such sale ; and such application

shall be accompanied by a certificate of the licensed auctioneer oy whom

such land was put up for sale, and such other proof of the matters stated by

the applicant as the Eecorder of Titles may require ; and the statements

made in such application shall be verified by the oath or statutory declaration

of the applicant. {Orey v. Watson, 152. S. 142.)



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TASMANIAN EEAL PEOPBETT ACT— No. 1. 279



122. The Eecorder of Titles shall refer such application to the Lands AppUoation
Titles Commissioners, who may direct the Eecorder of Titles to cause notice ^^^Z
to be published once in the Hohart Town Gazette, and once in each of three Lands Titles
successive weeks in at least one newspaper published in the City of Hobart sio™**
Town and Town of Launceston, offering such land for sale ; and shall, in such

case, 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 of Titles
may issue to such applicant an order for foreclosure, unless in the interval
a sufficient amount has been realised by the sale of such land to satisfy the
principal and interest moneys due, and all expenses occasioned by such sale
and proceedings ; and every such order for foreclosure under the hand of
the Eecorder of Titles, and entered in the Eegister Book, shall bave the
effect of vesting in the mortgagee all the estate and interest of the
mortgagor in the land mentioned in such order, free from all right and
equity of redemption on the part of the mortgagor, or of any person
claiming through or under him. (Oolonial Bank v. Pie 107. See note to
Sec, SI, ante.)

123. [Eepealed by Sec. 11, Eeal Property Act, 1862.]

124* No action of ejectment or other action for the recovery of any Begistwed
land shall lie or be sustained against the person registered as proprietor proScted'
thereof under the provisions of this Act, except in the following cases ; that •fwnstqacu
is to say : — (1) The case of a mortgagee as against a mortgagor in default ; S MrtaS*'^*
^2) The case of an encumbrancee as against an encumbrancer in default ; ^'^"^
(3) The case of a lessor as against a lessee in default. (4) The case of a
person deprived of any land by fraud, as against the person registered as
proprietor of such land through fraud, or as against a person deriving,
otherwise than as a transferee bona fide for value, from or through a person
so registered through fraud. (Featkeratone v. Hanlon, 4 ; Slack v. Doumton,
11 ; Pannan v. Pannan, 16 ; re Sellara, 32 ; Coleman and Clark v. Riria, 46 ;
Jones V. Sellick, 78 ; Sanders v. Wadham, 88 ; Kirkham v. Julien, 109 ;
Wilkinson v. Brown, 121 ; Stewart v. Belton, 125 ; Colonial Bank v. Itabhage,
126 ; Dyke v. Elliot, 133 ; Finnoran v. Weir, 136 ; Wadham v. Buttle, 156 ;
Buckett V. Knobbe, 167, 168 ; Delaney v. Sandhurst Building Society, 179 ;
Colonial Bank v. Boache, 187.) (5) The case of a person deprived of or
claimiug any land included in any grant or certificate of title of other land,
by misdescription of such other land, or of its boundaries as against the
registered proprietor, of such other land, not being a transferee of such
other land, or deriving from or through a transferee thereof bond fide for
value ; (6) The case of a registered proprietor claiming under the instrument
of title prior in date of registration under the provisions of this Act, in any
case in which two or more grants or two more certificates of title, or a grant
and a certificate of title may be registered under provisions of this Act in
respect to the same land. And in any case other than as aforesaid, the pro-
duction of the registered grant, certificate of title, or lease shall be held in
every Court of law or equity to be an absolute bar and estoppel to any such
action against the person named in such instrument as seized of or as
registered proprietor, or lessee of the land therein described, any rule of law
or equity to the contrary notwithstanding. (Main v. Bobertson, 191. N.
68, 115, 116; Z. 66; Q. 61-60,61-123 ; S. 192 ; V. 66, 138.)

125. Any person deprived of land, or of any estate or interest in land, ^on ST"**
in consequence of fraud or through the bringing of such land under the P*^J2* ^/^
provisions of this Act, or by the registration of any other person as pro- jSd ^



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280 TASMANIAN EEAL PEOPBETT ACT-No. 1.

prietor of such land, estate, or interest, or in consequence of any error,
omission, or misdescription in any certificate of title, or in any entry or
memorial in the Eegister Book, may, in any case in wtich such land has
been included in two or more grants from the Crown, bring and prosecute
an action at law for the recovery of damages against such person as the
Governor may appoint as nominal defendant, and in any other case, against
the person upon whose application such land was brought under the
provisions of this Act, or such erroneous re^stration was made, or who
acquired title to the estate or interest in question through such fraud, error,
omission, or misdescription : Provided always, that except in the case of
fraud, or of error occasioned by any omission, misrepresentation, or misde-
scription in the application of such person to bring such land under the
provisions of this Act, or to be registered as proprietor of such land, estate,
or interest, or in any instrument executed by him, such person shall, upon a
transfer of such land bond fide for value, cease to be liaole for the payment
of any damages which but for such transfer might have been recovered
from him under the provisions hereinbefore contained ; and such damages,
with costs of action, may in such last-mentioned case be recovered out of
the Assurance Fund against the Becorder of Titles as nominal defendant.
{Biggs v. Waterhouse, 68 ; Bannin and another v. Andrews^ 85. N. 117 ; S.
203; ¥.66-114.)

Farohaaen 126. Nothing in this Act contained shall be so interpreted as to leave

^ge^^pro. subject to actiou for recovery of damages as aforesaid, or to action of
ejectment, or to deprivation of the estate or interest in respect to which he
is registered as proprietor any purchaser or mortgagee bona fide for valuable
consideration or land under the provisions of this Act on the plea that his
vendor or mortgagor may have been registered as proprietor through fraud
or error, and this whether such fraud or error shall consist in wrong
description of the boundaries or of the parcels of any land or otherwise
howsoever. (Featherttone v. Ranlon, 4i ; in re James, 193. N. 116, 118 ; Z.
189, 190; S. 167; ¥.66-146.)

^'•g^^^ 127« In case the person against whom such action for dama^ is



VeSU ^ directed to be brought as aforesaid shall be dead, or shall have been adjudged




fendant the amount of the said damages and costs against the Assurance Fund here-
inbefore described; and in any such case, if final judgment be recovered,
and also in any case in which damages may be awarded in any action as
aforesaid, and the SherifE shall make a return of nulla bona, or shall certi^
that the full amount, with costs awarded, cannot be recovered from such
person, the Treasurer of the said Colony, upon receipt of a certificate of
the Court before which such action was tried, and of a warrant under the
hand of the G-overnor, as hereinafter provided, shall pay the aniount of such
damages and costs as may be awarded, or the unrecovered balance thereof,
as the case may be, and charge the same to the account of the Assurance
Fund. (Ihtheringham v. Archer, 10. Z. 64.)

wSo?«7*of 128, Any person sustaining loss or damage, through any omission,

dMmget mistake, or misfeasance of the Becorder of Titles, or any of his officers or
ul^MBesbe clerks in the execution of their respective duties, under the provisions of
broMht this Act, and any person deprived oi any land, or of any estate or interest
SSooHer of in land through the bringing of the same under the provisions of thii Aci^



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TASMANIAN EEAL PBOPBETT ACT— No. 1. 281

OP by the registration of any other person as proprietor of such land, or by TitiMM
any error, omission, or misdescription in any certificate of title, or in any S^JS^t
entry or memorial in the Register Book, and who by the provisions of this
Act is barred from bringing action of ejectment or other action for the
recoyery of such laud, estate, or interest, may in any case in which the
remedy by action for recovery of damages as hereinbefore provided is
barred, bring an action against the Eecorder of Titles, as nominal defendant,
for recovery of damages, and in case the plaintiff recover finid judgment
against such nominsd defendant, then the Court or Judge before whom
such action may be tried shall certify to the Treasurer of the said Colony
the fact of such judgment and the amount of damages and costs recovered ;
and the said Treasurer thereupon, and upon the receipt of a warrant under Ji^l^Si^^'of
the hand of the Governor, countersigned by the Colonial Secretary of the wMrant**
said Colony, shall pay the amount of such damages and costs to the person S^nor
recovering the same, and shall charge the same to the account of the to pay
Assurance Fund : Provided always that notice in writing of every such ISJJJd * ^
action, and of the cause thereof shall be served upon the Attorney- G-eneral j. ^ -
of the said Colony, and also upon the Becorder of Titles, one calendar month motion to be
at least before the commencement of such action. (Oakden v. Oibbs, 7 ; SJJSrfOTof
Fothermgham v. Archer ^ 10 ; Anderson y. Maori Hill Borough^ 103 ; Schroeder TiUee Md
T. HarcouH, 104 ; Van Damme v. Bloxam, 105. N. 120 ; Z. 180 ; Q. 61-128 ; ^^'
V. 66-146.)

129. If in any such action judgment be given in favour of the nominal JJ^®^^
defendant, or the plaintiff discontinue or become nonsuit, the plaintiff shall pLdntiffnon^
be liable to pay the full costs of defending such action, and the same when J^^^®
taxed shall be levied in the name of the nominal defendant by the like defondant
process of execution, as in other actions on the case. (Sharpe v. Hadley^ ''^'^^ ^'
3 ; CoJeer v. Spence, 6 ; Usher v Stewart, 44 ; Bank of Victoria v. Bawlings,
52 ; re Turner, 66 ; re Craig, 76 ; Watson v. Watson, 93 ; Campbell v. Jarrett,
96 ; re Feamley, 97 ; Hall v. Hall, 98 ; Stewart v. Belton, 110 ; Kirkham v.
Oarpenter, 111 ; Kearton v. Richardson^ 125 ; Ashley v. Cook, 137, 160 ;
Campbell v. Jarrett, 142 ; Qrey v. Watson, 152 ; Wtlson v. King, 166 ; Atiller

V. Stewart, 172 ; Shackell v. Lindsay, 174.)

130. No action for recovery of damages sustained through deprivation ^1™^®°
of land, or of any estate or interest in land, as hereinbefore described, shall

lie or be sustained against the Eecorder of Titles, or against the Assurance
Fund, or against the person upon whose application such land was brought
under the provisions of this Act, or against the person who applied to be
registered as proprietor in respect to such land, or against the person
executing any instrument as aforesaid, unless such action shall be commenced
within the period of six years from the date of such deprivation : Provided, J|JIJU?J*
nevertheless, that any person being under the disability of coverture, noHoe, or
infancy, unsoundness of mind, or absence from the Colony, may bring such nefTiSSg
action within six years from the date on which such disability shall have ^ caveat,
ceased; and the plaintifE in any such action, at whatever time it may be "^'^^
brought, or the plaintiff in action for the recovery of land, shall be nonsuited
in any case in which the deprivation complained of may have been occasioned
through the bringing of land under the provisions of this Act, if it shall be
made to appear to the satisfaction of the Court before which such action
shall be tried, that such plaintiff, or the person through or under whom he
claims title, bad notice by personal service or otherwise, or was aware that
application had been made to bring such land under the provisions of this



entitled to
costs



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282 TASMANIAN EEAL PEOPEBTT ACT— No. 1.

Act, and had, wilfully or collosiyely, omitted to lodge caveat forbidding the
same, or had allowed such caveat to lapse. {Mudgway v. Davy and BuieJc. 1 ;
FeathersioneT. Hanlon, 4; re 0*Brien, 34; re jSjnapman, 41. N. 122 ; Z.
187; S. 216; V. 66, 149.)

^J^*^* 13L All costs, charges, and expenses, which the Eecorder may be put

paid ' to by reason of his being made a trustee by nrtue of the provisions of this

Act, shall be reimbursed to him out of the Assurance Fund, unless othemise

directed by the Supreme Court.

otaSRmT** 132, Whenever any amount has been paid out of the Assurance Fund
^mnoe ou account of any person who may be dead, such amount may be recovered
5^»OTOT«d ft'o™ t^6 estate of such person by an action against his personal representa-
tives, in the name of the Eecorder of Titles ; and whenever such amount
has been paid on account of a person who shall have been adjudged insolvent
the amount so paid shall be considered to be a debt due from the estate of
such insolvent, and a certificate signed by the Treasurer of the said colony,
certifying the fact of such payment out of the Assurance Fund, and delivered
to the official assignee, shaJl be sufficient proof of such debt, and whenever
any amount has been paid out of the Assurance Fund on account of any
person who may have absconded, or who cannot be found within the jurisdic-
tion of the Supreme Court, and may have left any real or personal estate
within the said province, it shall be lawful for the said court, or a judge
thereof, upon the application of the Eecorder of Titles, and upon the
production of a certificate, signed by the Treasurer of the said colony,
certifying that the amount has been paid in satisfaction of a judgment



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