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under any of the said Acts.



SCHEDULE.
(1)



8eo.20



Date and Number of Aot.


Title of Act.


17 Vic. No. 4

26 Vic. No. 6


An Act for the better Preservation and Management of the
Eetates of deceased Persons in certain oases.

An Act to amend the Aot, intituled ** An Aot for the better
Preservation and Management of the Estates of deceased
Persons in certain cases.*'



(2.)
ACTS TO BE REPEALED.



8m. 88



Date and Number of Act.



Title of Act.



22 Vict. No. 19
83 Vict. No. 12
34 Vict. No. 19



^n Aot to amend the law relating to the Estates of deceased

Persons
An Act to explain the Operation of " An Act to amend the law

relating to the Estates of Deceased Persons.*'
An Act to abolish the Distinction as to Priority of Payment

which now exists between the Specialty and Simple

Oontraot Debts of deceased Persons.



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304, TASMANIAK BEAL PBOPEETT ACT— Nos. 4 A 5.



B'



EEAL PEOPERTT ACT, 1878— No. 4.

► E IT ENACTED by His Excellency the Governor of Tasmania, by and
^ with the advice and consent of the Legislative Council and House
of Assembly, in Parliament assembled, as follows : —

Land under 1, In any caso in which by any will the testator has charged his real

^ropw^ estate or any specific portion thereof with the payment of any legacy or

Act rabjoct other specific sum of money, and has not devised the hereditaments charged

how^dMU' as aforesaid in such terms as that his whole eatate and interest therein

^th becomes vested in any trustee, and has not made any express provision for

the raising of such legacy or sum of money out of such estate, it shall be

lawful for the executor for the time being named in such will, if any, to

apply to the Becorder of Titles to be registered upon the existing certificate

of title or land grant as entitled to execute a transfer or mortgage of the

land therein mentioned ; and the Eec order of Titles shall cause the title of

such applicant to be investi&^ated by the solicitor, and shall thereafter

submit the same for the consiaeration of the Lands Titles Commissioners,

who may either reject such application altogether or direct the applicant to

be registered in accordance therewith, either immediately or, unless caveat

be lodged, after such notice or advertisement and within such period as they

may appoint ; and the Becorder of Titles shall obey such direction or any

order of the Supreme Court in the premises. Upon such registration beinff

eflbcted it shall be lawful for such executor to raise such legacy or sum or

money as aforesaid by a sale and absolute disposition by public auction or

private contract of the said hereditaments or any part thereof, and for that

purpose to execute a transfer or transfers of the same, or to execute a

memorandum of mortgage of the same, or partly in one mode and partly in

the other ; and in any memorandum of mortgage so executed such rate of

interest may be reserved and such period of repayment may be fixed as the

said executor may think proper ; but any sale or mortgage under this Act

shall operate only on the estate and interest of the testator. Subject to any

mortgage which may be created under the provisions of this section, the

person entitled to the equity of redemption in any such land may be

registered as the proprietor thereof, in like manner as any mortgagor under

the Real Property Act is now entitled to be registered.

"Vl^^t *****° 2. The provisions of this Act shall apply onljr to land which has been

or which may hereafter be brought under the operation of the Real Property

Act.

Aoto to be 3^ This Act and the said Act, and every Act altering or amending the

together samo, shall be read and construed together as one Act.

Short title 4. This Act may be cited as " The fieal Property Act, No. 4»."



B'



HEAL PEOPEETT ACT, 1886— No. 5.

►E IT ENACTED by His Excellency the Governor of Tasmania, by and
^ with the advice and consent of the Legislative Council and House
of Assembly, in Parliament assembled, as follows : —

Short title 1. This Act may be cited as " The Eeal Property Act, No. 6."

inteipreu- 2- In this Act, unless the context otherwise determines — THE PEIN-

Soviet. No. OIPAL ACT means the Eeal Property Act, and includes eveiy Act
le * amending the same : UNDEE THE ACT meaus under the Provisions of

the Principal Act.



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TASMANIAN EEAL PROPEBTT ACT— No. 5. 305

Application op " The Settled Jjajstd Act "
To Lakd Held xtndeb the Act.

3. In tbe application of " The Settled Land Act, 1884,'* (herein referred AtmUcttion
to as the said Act), to settled land held under the Act, the following pro- no. m©**
visions shall have effect : — (1) The registered proprietor, or the registered ^»^^ Md
proprietors, if more than one, shall be deemed to oe the trustee or trustees Propertj*
of the settlement; (2) Where under the provisions of the said Act any '^^'^
power or authority is conferred upon a tenant for life, then upon the written
request of the tenant for life, and upon the performance by the tenant for
life of the conditions imposed bv the said Act upon the exercise of such a
power or authority by a tenant for life, the registered proprietor or registered
proprietors shall have and shall and may exercise that power or authority ;
(3) Where under the provisions of the said Act any instrument is to be
executed by a tenant for life in order to the exercise of any such power or
authority, that instrument shall be executed by the registered proprietor or
registered proprietors, and such execution shall have the same operation as
the execution of such an instrument by a tenant for life is declared to
have under the said Act ; (4) A registered proprietor or registered pro-
prietors executing a power or authority in accordance with the provisions of
the said Act upon the written request of the tenant for life, or with the
sanction of the Court if, being the tenant or the tenants for life, he is him-
self or they are themselves the sole trustee or trustees of the settlement,
shall not by reason thereof incur any personal liability to his or their bene-
ficiaries or to any other person, and no such registered proprietor or
registered proprietors shall, for the purpose of executing any such power or
authority or complying with any such request, be bound to enter into any
personal covenant or contract ; (5) Where under the provisions of the said
Act it is provided that land shall be conveyed to any uses or trusts, that
expression shall be taken to mean that the land shall be transferred to
trustees, and shall be held by them as trustees upon such uses or trusts ;
(6) Where under the provisions of the said Act it is provided that a contract
made by a tenant for life shall be binding on the settled land, that
expression shall be taken also to mean that the contract shall be binding on
the registered proprietor, and that he shall be bound to give effect thereto in
the same manner as if he had made it himself, subject, however, to the
provisions of the said Act ; (7) In this section the term " registered pro-
prietor *' includes any person possessed of or entitled to any charge upon
fand ; (8) The term " deed " used in the said Act shall include any instru-
ment executed in pursuance of the provisions of the Principal Act.

4* Nothing hereinbefore contained shall be taken to require any person Fentnn
dealing with a registered proprietor of land held under the Act to inquire tt^Sered*^
whether all or any of the provisions of " The Settled Land Act, 1884," have propnetor
been complied with in respect of the proposed dealing. toqiS?^"^^

Estates Tail.

5, Where any limitation which would heretofore have limited to any Teoftnoies in
person, an estate tail, whether legal or equitable, in any land under the Act, ^^f**^^*"
18 made after the commencement of this Act, such limitation shall be deemed simple'
to give to such person an estate in fee-simple (legal or equitable, as the case
may be,) in such land. (V. 86-67.)



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30G TASMANIAN EEAL PEOPEETr ACT— No. 6.

Where rac 6« Where uoder any will or settlement executed before the commence-

^tetare ^^^^ ^^ ^^^8 Act an estate for life in any such land is given to any person,
giren to followcd by au estate for life in remainder to any child of such person and
KiTd iriu? ultimately or immediately by an estate tail in remainder to any grandchild
*'**dchiid^ of such person, such person and the child of such person may together, when
pwent ancf such child attains the age of twenty-one years, bar the entail and dispose of
bi? the'^ the estate as fully and effectually as if the estate given to the child had been
enuii M if instead of an estate for life an estate tail similar to the estate tail given to
taUwere^ ^ho grandchild ; and this provision shall extend to equitable as well as to
BJTJ^tothe legal estates. (V. 85-68.)

Tenant in 7. Subject to the provisions of the two last preceding sections, an

the Aot^*^ estate tail under the Act shall have the same incidents as a similar estate

d**^^'^h th ^°*^®^ ^^® general law, and the proprietor of such an estate shall have the

eetateaa Same powcr to bar the estate tail and create an estate in fee-simple absolute

astenant m *^ against all pcrsons whose estates are to take effect after the determination

tail under or iu defeasance of the estate tail as is possessed by the owner of a corre-

^e general gpQjKjjng estate tail in land not under the Act by virtue of the Act of
Council of the 17th Victorice, No. 8.

Transferee 8, A transfer or mortgage in the ordinary form by a tenant in tail

Sudi^^y* under the Act having power to create an estate in fee-simple shall create
be registered euch estate in favour of a transferee, mortgagee, or transferee under the
eeut"^hich power of salc in the mortgage, and a transferee from a tenant in tail, or
taifam*° uudor a mortgage from a tenant in tail, or a mortgagee after foreclosure
confer shall be entitled to be registered and receive a certificate for the larger

estate which the tenant in tail is empowered to confer, but a mortgage under

the Act, if discharged, shall not bar the entail.

Crown Gra.nt8.

Registration 9. The registration of a Crown Grant in the manner prescribed by the

GrantTtobe Principal Act shall be deemed and taken to be an enrolment of record of

enrSmentof ®^^^ grant, and it shall be unnecessary to enrol the same in the Supreme

record Court of Tasmania, and such enrolment by registration shall relate back to

the date of the grant, and either part of such grant when registered under

the Act shall bo a suilicieut evidence of a duly enrolled grant of the land

therein described to the |)erBon therein named on the day of the date thereof.

(Mudgwai/ v. Davy and Buick, 1 ; ex parte Boivany 14 ; Mangakahia v. 2few

Zealand Timber Company^ 100 ; Fitzgerald v. Archer^ 101 ; Fisher v. Qqffney^

102. Z. 2, 30 ; S. 214 ; V. 66-59.)

Crown grant XO- The effect given by section twenty-seven of the Principal Act to a

decwwed** Certificate of title issued in the name of a deceased person shall extend to
person evcry crown grant in the name of a deceased person who would have been
entitled thereto if living.

Dealings H. TJpon production of a receipt of the Treasurer of the Colony for the

Mastered ^"^1 purchase money of anv land sold by Her Majesty in fee together with

Fm *^' *f *° instrument dealing with such land signed by the purchaser, the Recorder

Crown grant of Titles shall endorse upon such receipt such memorial as he is under the

Act required to enter in the Registei Book upon the registration of any

dealing of a like nature with land registered, and shall sign such endorsement,

and shall endorse such instrument with the certificate of registration under

the Act required on the registration of a like instrument after a grant haa

beeji registered, and so on from time to time with respect to any other



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TASMANIAN EEAL PEOPEETT ACT— No. 5. 307

dealings before the registration of the grant, and every such instrument
shall thereupon be held to be duly registered under the Act. The Eecorder
of Titles shall file such receipt and instrument in the olBRce, and upon the
registration of the grant of the land, he shall enter thereon a memorial of
every dealing endorsed on such receipt, and issue a certificate of title to the
then transferee of the land (if any) (N. 99 ; Z,4i6] V. 66-57.)

Title by Eitdoesement.

12« Upon the registration of any memorandum of transfer of an estate On tnmsfer
of freehold in any land in Form D. of the Schedule to the Principal Act, f^nd com.
comprising the whole of the land described in any grant or certificate of p^»^ »»
title, it shall not be necessary for the transferee to take out a certificate of tiS^tl] ^^
title in his own name, but he may receive the grant or certificate of title of ne'S'n^oT
the transferor, or in the case of a sale by a mortgagee the grant or certificate t«ko out new
of title of the mortgagor with a memorial of the transfer in each case buu^S^er
endorsed thereon under the hand and seal of the Kecorder of Titles, and ™»y *>« bj
the Eecorder of Titles shall not, after registering any such transfer, enter a
memorandum cancelling such grant or certificate of title as required by the
Principal Act, and each successive transferee (if any) of the whole of such
land may at his option take out u certificate of title in his own name, or may
receive the same grant or certificate of title upon which the memorial or
memorials of any previous transfer or transfers have been endorsed as
aforesaid, but the Recorder of Titles whenever, in his opinion, any grant or
certificate of title shall be incapable of containing with convenience any
further endorsements, may compel the last transferee to receive a certificate
of title in his own name. (N. 73-1 ; Z. 77 ; V. 85-51.)

13. "When portion only of the land comprised in a grant or certificate Grant, &c.,
of title has been transferred, the transferor may have the grant or certificate ^tJroed if
of title returned to him with the memorial or memorials of such transfer or poy^**" ^^^J
transfers as may have been registered endorsed thereon, and the Eecorder transferred
of Titles may also endorse thereon a memorandum under his hand showing

the portion of the land comprised therein of which the transferor remains
registered proprietor. Provided always that the Eecorder of Titles maj
refuse to re-issue such grant or certificate if he shall be of opinion that it
is inadvisable so to do.

14. Nothing in the last foregoing section contained shall be deemed to Balance cer.
preclude the Eecorder of Titles from issuing a balance certificate of title * ***^'
under section forty-five of the Principal Act whenever required thereto by

the transferor. (Q. 61-50.)

Tenakct in Common.

15. In all cases where two -or more persons are entitled as tenants in Each tenant
common to undivided shares of or in any land, such persons may, receive ^JJ^®"^
one certificate for the entirety or separate certificates for the undivided distinct cer.
Bharei. (Slack v. Downton, 11. N. 86 ; Z. 62 ; V. 66-44.) ^^^^ ^^

Tenancy in Eemaindee, &c.

16. Subject to the provisions of this Act and of " The Settled Land man, &c..
Act, 1884," the proprietor of an estate of freehold in remainder or reversion JJJai^^®
in land in respect oi which a certificate of title has been issued for a life certificate of
estate therein may have his estate in remainder or reversion, as the case may iheL ^tes



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308 TA8MANIAN BEAL PEOPEETY ACT-No. 6.

be, registered on Buch certificate of title in the manner provided by tbe
eigbty-ninth section of the Principal Act, or may receive a separate certifi-
cate of title for such estate which shall refer to the certificate of title for tbe
particular estate, proyided that where such proprietor has become entitled
pursuant to a memorandum of transfer it shall not be necessary for tbe
Kecorder of Titles to refer the title of such proprietor to the Lands Titles
Commissioners.

TbAITSFSB AKD MOBTaAGE.

Trauferand 17, Whenever it is desired that a mortgage shall be registered by the
mortgage tp^ngferee of land under the Act contemporaneously with registration of
the transfer, it shall be lawful to insert in the transfer words showing that
it is made subject to a mortgage of even date therewith and intended to be
registered contemporaneously with the registration thereof, and the transfer
shall give the particulars of such mortgage. In such mortgage the mort-
gagor shall be described as "registered proprietor, or entitled to be
registered proprietor," and may, for a description of the land intended to be
affected, refer to the transferor's grant or certificate of title, and the
Eecorder of Titles shall thereupon register such transfer and mortgage, and
thereupon the mortgage shall oe as valid and effectual to all intents and
purposes as if the transferee had been actually registered proprietor at the
date of the execution of such mortgage. {(Momlei/ v. Mrehrace^ 21 ;
Bume V. Stewart^ 28 ; Beg, v. Tideman, 99 ; Boss v. McNeill, 118 ; Manning
V. Orossman, 127.)

TBANSMIBBIOUfS.

ApfOications 18. In addition to the persons empowered by the eightieth section of

teredbT* *^® Principal Act to apply to be registered as proprietors by transmission
transmission on the death of a deceased registered proprietor, it shall be lawful for any
person having a power of disposition over an estate of freehold in any land
oelonging to a deceased registered proprietor to make the application. And
every such application shall be proceeded with in the manner indicated by
the said eightieth and the eighty-first sections of the same Act. Provided,
that in any application to be registered proprietor by transmission, whether
under this section or the said eightieth section, the Lands Titles Commis-
sioners may, if so advised by their solicitor, dispense with the publication of
all or any of the notices directed to be published by the said eighty-first
section, and the Eecorder of Titles shall, unless he shall have received a
caveat forbidding him so to do, register the applicant, or such person as he
or the person applying in his behalf may by any writing under his hand
appoint, as proprietor at the expiration ot such time, not being more thaji
one month, as the said Commissioners shall direct ; and the said Commis-
sioners may direct any caveat to be entered by the Eecorder of Titles for
the protection of the interests of such other persons (if any) as may appear
to the Solicitor to the Lands Titles Commissioners to be interested in such
land.

Begistration 19, TJpoD the registration of any person claiming any estate of freehold
Sonbj*^!" ^ the land of a deceased proprietor, it shall not be necessary for such first-
dorsement mentioned person to take out a certificate of title in his own name, where
the transmission is of the whole of the land comprised in the grant or
certificate of title surrendered and for the whole of the estate of the
deceased registered proprietor, but he may receive the grant or certificate
of such registered proprietor with a memorial of the transmission endorsed



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TASMANIAN EEAL PBOPEETY ACT— No, 5.

tbereoD, provided that the Becorder of Titles, whenever in his opinion any
grant or certificate of title shall he incapahle of containing with conveni-
ence any further endorsements, may compel the last proprietor applying for
registration to receive a certificate of title in his own name. {Fannan v.
Pannan, 18. N. 78-8 ; Z. 115 ; Q. 77-31 ; S. 19; V. 86-60.)

Impebfect Title.

20. Notwithstanding anything to the contrary in the Principal Act Additional
contained, the Lands Titles Commissioners may, after the publication of SS?^ w»-
such advertisements as they may deem fit, direct the Recorder of Titles to p*rf»ct '»*!•
bring anj land under the Act, or may recommend the issue of a grant, upon
the applicant proprietor contributing to the Assurance Fund in augmenta-
tion thereof such an additional sum of money as the Commissioners shall
certify under the hand of their chairman to be in their judgment a sufficient
indemnity by reason of the non-production of any document afEecting the
title, or of the imperfect nature of the evidence of title, or against any
uncertain or doubtful claim or demand arising upon the title. (V. 66-32.)

Caveats.

21* In cases where applications of persons claiming to be entitled to CsTest may
grants from the Crown or any lands in equity and good conscience shall J|JiSjf^
have been received by the Eecorder of Titles, any person having or claiming r^p^rt tut
an J interest in any such land mav, within such time, not being less than eSSued'to
thirty days, by any direction of the Lands Titles Commissioners for that fJStrilndi
purpose limited, lodge a caveat with the Recorder of Titles, in the Form A. gcwdoon-
in tne Schedule hereto forbidding him to report to the Governor that the ^^^
applicant is entitled in equity and good conscience to a grant of the said
land ; and every such caveat shall particularise the estate, interest, lien, or
charge claimed by the person lodging the same, and the provisions of
sections twenty-three, twenty-four, and one hundred and thirty of the
Principal Act relating to caveats forbidding the bringing of land under the
Act shall, mutatis mutandis^ ^Ppl^ ^i^^ respect to a caveat under this section. Supreme
The Supreme Court of Tasmania in its claims to grants of land jurisdiction deddV**
shall be a court of competent jurisdiction to decide between the applicant ^•▼©•t^
and the caveator in all cases where caveats shall have been entered under seviot.
the provisions of The Real Property Act, No. 2, or this Act. {Ex parte ^^' ^
Mcintosh, 6U.)

22. It shall be lawful for the judgment creditor of any person holding P*TJ5*^V
land under the Act to enter a caveat in the manner prescribed by section judmLt ^
eighty-two of the Principal Act, and the practice, procedure, and mode of editor
dealing with such caveat snail in all respects be the same as if such judgment
creditor claimed an estate or interest in such person's land within the mean-
ing of that section ; and the Court or a Judge, in deciding on the validity

or otherwise of such caveat, shall be guided by the ordinary rules of law
and equity as to upholding or setting aside a judgment.

Subbendebs to the Queek.

23. Land held under the Act shall be surrendered to Her Majesty the How lacd
Queen by the form of transfer prescribed by the Principal Act ; and the S^JYu^*
Recorder of Titles shall register the same m the usual way ; and such rend^ to
regiBtration shall be deemed and taken to be an enrolment of record of such ^* ^^*^



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310 TASMANIAN EEAL PEOPERTT ACT— No. 5.

transfer, and the Register Book witb the registration memorial of such
transfer endorsed thereon and signed by the Becorder of Titles shall be
sufficient evidence of a duly enrolled surrender to Her said Majesty of the
land described in the folium whereon such memorial is endorsed.

EXTEITSIO^S.

Extension of 24. Auj mortgage, encumbrance, or lease may be extended at any
mortgaget, ^^^ ^^ endorsing thereon the word " extended," which endorsement shall

be signed by the respective parties to such mortgage, encumbrance, or lease,

or their transferees and attested.

^^^^Sf ^^* ®*^^^ endorsement shall, when registered, have the effect of an

of'extenno^ extension for one year of the term limited by the mortgage, encumbrance

or lease, or by any previous extension, subject to the same terms and

conditions, but words may be added extending the term for any other

period or varying and altering the said terms and conditions; and every

such extension shall have the same effect as if expressed in the original

instrument, and the Becorder of Titles shall, upon production thereof to

fe^not^ him, enter a memorial of such extension on the original certificate and on

bind nan- the ori^ual instrument filed in his office : Provided that no extension of a

JJJJJJ^^ lease of land mortgaged or encumbered shall be binding upon the mortgagee

or •ncom- or eucumbraucee unless he shall have consented thereto in writing : Provided

brmncees ^^ ^^^ j^^ oxteusiou of the first mortgage of land subject to other

Ei^Bonoa mortgage or mortgages where the terms or conditions of such first mortgage

cige noTto^ ftre varied or altered shall be binding upon the other mortgagee or mort-



Online LibraryAustraliaThe land transfer laws of Australasia: being the full text with side notes ... → online text (page 54 of 83)