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

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^-simple either at law or in equity. (Be Benn and Ghice, 200.) (2) Ict^'
Persons who collectively claim to be the owners of the fee-simple either at second
law or in equity. (3) Persons who have the power of appointing or dis- Schedule
posing of the fee-simple. (Ex parte Locke, 4&,) (4) The person claiming



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818 VICTORIAN LAND TEANSFEB ACT— No. 1.

to be the owner of the first estate of freehold if the owner of the first
vested estate of inheritance shall consent to the application. (5) Trustee?
for sale of the fee simple but it any previous consent to their selling be
requisite the persons required to give such consent to consent to the
application. (6) The guardian of any infant or the committee of the
estate of any lunatic or person of unsound mind unable to govern his
estate so however that the application be made on behalf of such infant
lunatic or person and the certificate of title be directed to issue in his name.
(St, George v. Burnett, 57 ; :Bullen v. Thompson, 74 ; Hall v. Loder, 158 ; ex
parte Folk, 170; re PyJcet*, 171. N. 3; Z. 18; Q. 78-17, 61-3, 62-3;
S. 245, 3-244.) Provided always that a mortgagor shall not be entitled to
make such application unless the mortgagee shall consent thereto nor &
mortgagee unless in the exercise of his power of sale and unless the certifi-
cate of title shall be directed to issue in the purchaser's name nor a married
woman unless her husband shall consent thereto and the application shall
be acknowledged by her in the manner hereinafter mentioned as to the
acknowledgment of instruments (except she shall be entitled to the land
for her separate use or has a power to appoint the same) Provided also
that the attorney of any corporation howsoever and wheresoever incor-
porated whether already constituted or hereafter to be constituted by a
power of attorney under a seal purporting to be the common seal of the
corporation giving the power may make such application for or on behalf of
the corporation of which he is the attorney and may make the xeQuiaite
declaration to the best of his knowledge information and belief ana maj
subscribe the application in his own name.

Su^n to bi 18. The Eegistrar of Titles shall refer such application to an ExafflHJff

dealt with of Titles who shall report on the title and submit the same and the f^
reVi^t^Md to the Commissioner for his direction and if it shall appear to the Cooffiw-
dealing siouor that no transaction affecting the land has been registered under »y
general Registration Act concerning the registration of instruments relating
to or affecting land he shall direct tbe Eegistrar to bring the land under tbe
operation of this Act forthwith by registering a certificate of title. (^^
parte Bowan, 14 ; re J, B. Slack, 35 ; re kelson Bros., 36 ; Warner v. Bo^
37 ; Wiggins app., Hammill, resp., 38 ; re David Le Compte, 39 ; re Dr. 0,
QwiViw, 40; re Knapman, 41; ex parte Hamilton, 42; ex parte Locke, ^\
Msher v. Stewart, 44 ; ex parte Bumell, 4Al ; ex parte Olissold, 45. N. 13;
Z. 17, 18. See Sec. 14 of 1SS5 Act.)

ro"^8t5Sd* 1®* ^^ it shall appear to the Commissioner that any such transaction

deSing* as aforesaid has been registered and that all encumbrances affecting the lana
(excepting such as are hereinafter mentioned as not requiring special notifi-
cation) have been released or that the owners thereof have consented to
the application or that any encumbrance (not being a mortgage the owner
whereof shall not have consented to the application) may be specified in tbe
certificate of title and continue outstanding the Commissioner shall direct
notice of the application to be advertised once at least in one newspaper pno-
lishedin the City of Melbourne or circulating in the neighbourhood of the land
and to be served on any persons named by him and shall appoint a time
not less than fourteen days nor more than twelve months from such notice
or from the advertisement or the first of such advertisements if more than
one on or after the expiration of which the Eegistrar shall unless a caveat
shall be lodged forbidding the same bring the land under the operation of
this Act. {See Sec. 80 of 1SS7 Act.)



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VICTOEIAN LAND TRANSFER ACT— No. 1. 319

20. [Repealed by Sec. 11 of Transfer of Land Statute, 1869.]

21. If before the registration of the certificate the Registrar shall not brought
haye received a caveat forbidding the same he shall bring the land under Jet u^ni^
this Act by registering in the name of the applicant or in the name of such 0*7^ r»-
person as may have been diiected in that behalf a certificate of title to the rStd
land in the form in the Third Schedule hereto. (See Sec. 48 o/1885 Act) ^^^^^^

22. Any person claiming any estate or interest in the land described in ?JJ^*J^^
the advertisement may before the registration of the certificate lodge a may lodge
caveat with the Registrar in the form in the Fourth Schedule hereto °*'«»^
forbidding the bringing of such land under this Act. Every such caveat Fourth
shall be signed by the caveator or by his agent and shall particularise the ®^**®<^"^«
estate or interest claimed and the person lodging such caveat shall if
required by the Registrar support tne same by a statutory declaration
stating the nature of the title under which the claim is made and also
deliver a perfect abstract of the title to such estate or interest. No such
caveat shall be received unless some address or place within the present
limits of the City of Melbourne shall be appointed therein as the place at
which notices and proceedings relating to such caveat may be served.

23. The Registrar upon receipt of such caveat shall notify the same to ifoaTefttb©
the applicant and shall suspend proceeding in the matter until such caveat J?S5«^m
shall have been withdrawn or shall have lapsed as hereinafter provided or tuspended
until an order in the matter shall have been obtained from tne Supreme

Court or a Judge The applicant may if he think fit summon the caveator
to aliend before the Supreme Court or a Judge in chambers to show cause
why such caveat should not be removed and such Court or Judge may upon
proof that such caveator has been summoned make such order in the
premises either ex parte or otherwise as to such Court or Judge may seem
fit.

24. After the expiration of one month from the receipt thereof such caveat to
caveat shall be deemed to have lapsed unless the person by whom or on ^,^1^^^^
whose behalf the same was lodged shall within that time have taken proceed- taken within
ings in a court of competent jurisdiction to establish his title to the estate ^'"•n*""'**
or interest specified in the caveat and shall have given written notice thereof

to the Registrar or shall have obtained and served on him an injunction or
order of the Supreme Court or a Judge restraining him from bringing the
land under this Act. A caveat shall not be renewed by or on behalf of the
same person in respect of the same estate or interest.

25. After an application has been made to have any land brought under a judge may
the operation of this Act a Judge may require all persons having in their JJJJjJJtton
possession or custody any deeds instruments or evidences of title relating to of title deeds
or affecting the land the subject of such application to produce the same at M^ppuJa-**^
the office of titles to the Commissioner and to any Examiner of Titles for his jl^'J**' j'***^
inspection upon such terms and subject to such conditions and for such the Act ^'
charge or fee as the Judge making the order may think just and shall fix.

All applications to be made to a Judge under this section may be made by
summons in chambers by the applicant owner or by the person to whom he
may have directed a certificate of title to be issued. (Be Craig^ 76.)

26. An applicant may withdraw his application at any time prior to Applicant
the registration of the certificate and the Registrar shall in such case return Siw hu*"
to the applicant or to the person appearing by the application to be entitled application
thereto all evidences of title lodged m support of the apphcation but in such

case if the caveator shall have been put to expense without sufficient cause



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320 VICTOBIAN LAKD TEANSFER ACT— No. 1.

by reason of such application be sball be entitled to receive from tbe appli-
cant such compensation as a Judge on a summons io cbambers shall deem
just and order. (N. 14, 24 ; Z. 27 ; Q. 61-29, 77, 9 ; S. 41 ; T. 62-25, 19.)
27. [Repealed by Sec. 37 Land Transfer Act, 1885.]
tiS^to^S^e^ 28. In case the applicant or the person in whose name the certificate
in name of of title has been directed to issue shall die between the application and the
appUoSftor registration of the certificate it shall be registered in the name of sucb
hiB nominee applicant or of such person as the case may be and such land Bh&ll
deyolve or pass in like manner as if the certificate had been registered prior
to the death of such applicant or person. {Featherstone y. Hanlon^ 4 ;
Pannan v. Pannan^ 18 ; Chomley v. Firehrace, 21 ; House v. O^Farrell, 51;
re Sat/ion ex parte Bibbs, 67 ; Sail v. Hall, 98 ; Fitzgerald v. Archer, 101;
Kirkham v. Carpenter^ HI ; 6X parte The Mutual Trust Co., 117 ; Jonetr.
Jones, 134 ; Stevens v. Williams, 186 ; Robertson v. Keith, 195 ; Miller t.
Morrissey, 214; Murphy v. Mitchell, 215. N. 26; Q. 61-31; S. 43 ; V. 12.)
Bepetration 29, Land leased for a term of years of which ten years are unexpired

or leased for years determinable with a life or lives may be brought under
the operation of this Act as near as may be in a similar manner and subject
to the same or similar provisions as are hereinbefore contained with respect
to freehold land. The application may be made by persons having such
estates and interests in the leasehold land as are similar or correspondent to
the estates and interests of the persons entitled to apply to bring freehold
land under this Act Every certificate of title to leasehold land shall alwap
be subject to the rights and powers of the lessor or his representative and
of any person entitled to the inheritance in the land immediately expectant
on the term as well as to the encumbrances hereinafter mentioned as not
requiring special notification The several provisions of this Act with
respect to freehold land shall apply to leasehold land with such vari&taonB
only as the difEerence in the nature of such property requires or as may be
necessary to render such provisions applicable to leaseholds for years. (N.
11-8 ; Z. 17-5; Q. 61-11-3; T. 62-11-3.)
S*Sr^5Sd 30. Upon first bringing land under the operation of this Act whether

to be paid by the alienation thereof in fee from Her Majesty or consequent upon an
of'tiSe°'*°°* application as hereinbefore provided and also upon the registration of the
title to an estate of freehold in land under the operation of this Act on a
transmission there shall be paid to the Eegistrar as an Assurance Fund a
Last sum not exceeding the sum specified in the last Schedule hereto and in the

Sohedoie ^^^ q£ \%xi^ brought Under tnis Act by alienation in fee from Her Majestj
the price paid for such land shall be deemed to be the value thereof for the
purpose of ascertaining such sum and in the other cases such value shall be
ascertained by the declaration of the applicant or by the statutory declara-
tion of the person deriving such land by transmission If the Registrar shall
not be satisfied of the correctness of the value so declared he may require
such applicant or person to produce a certificate of such value under the
hand of a sworn valuator which certificate shall be received as concluaive
evidence thereof. {MoyU v. Qibbs, 49. N. 27 ; Q. 61-41 ; T. 62-28. See
St^riai. Ssc,^QoJl%S^Act.)

^^mS- 31* Whensoever in any memorial received before the year one thousand

trationActa eight hundred and sixty -two under any Act concerning the registration of
dentew^" instruments relating to or affecting land the instrument purporting to be
denoe of registered shall be stated under the heading " nature of instrument " to be
^nreyancet ^ j^j^^se or a convoyanco or a reconveyance such memorial may for the



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VICTORIAN LAND TRANSFER ACT— No. 1. 321

purpose of bringing land under this Act be deemed by the Commissioner
sufficient evidence of the instrument referred to being a conveyance in fee
simple of the lands described in such memorial unless the contrary can
reasonably be inferred from the prior or subsequent title or from something
appearing on the face of such memorial. For every memorial which shall
be acted on as the evidence of a conveyance in fee there shall be paid to the
Assurance Fund in augmentation thereof an additional sum of one pound.

32. Notwithstanding anything hereinbefore contained the Commissioner fddiHonai
may after the publication of such advertisements as he may deem fit direct Snd™'^
the Registrar to bring any land under the operation of this Act upon the jjff®'^*^
applicant contributing to the Assurance Fund in augmentation thereof such

an additional sum of money as the Commissioner shall certify under his
hand to be in his judgment a sufficient indemnity by reason of the non-
production of any document affecting 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. (T. 86-20.)

33. [Repealed by Sec. 1 of 1867 Act.]

As TO L/lsid undee the Act.

34. Certificates of title shall be in duplicate in the form in the Third o®^^*^^^
Schedule hereto and the Registrar shall keep a book to be called the L dnpUi»te
" Register Book '* and shall register or enter by binding up therein one of ^,j.^

the grants and one of the certificates of title and shall deliver the other Schedaie
original (hereinafter called the duplicate) to the proprietor. Each grant Regiitor
and certificate shall constitute a separate folium of such book and the Book
Registrar shall endorse thereon in such manner as to preserve their priorities JhereSf"^
the particulars of all dealings and matters afi*ecting the land by this Act
required to be registered or entered. (Re Thompson and ChippSf 27. N.
19, 30, 31 ; Z. 17, 39 ; Q. 61-33 ; S. 26, 27, 47, 48 ; T. 62-32, 20. See note
to Sec, 48 of 1885 Act.)

35. Before the delivery of any duplicate grant or certificate oi title Receipts
a receipt for it in the handwriting of the proprietor may be required to be ^^^/^^
signed by him when practicable so as to prevent as far as may be person- duplicate

of inn Rranfra and

*"0"' oertifloates

36< Every grant and every certificate of title shall be deemed and Grants and
taken to be registered under this Act when the Registrar has marked S? m?ereS«-
thereon the volume and folium of the Register Book in which the same is ^^^ ^J>«»
entered and every instrument purporting to affect land under the operation Register'*
of this Act shall be deemed and taken to be registered when a memorial ^^^
thereof as hereinafter described has been entered in the Register Book l^^^^^
upon the folium constituted by the grant or existing certificate of title and when memo,
the person named in any grant certificate of title or instrument so registered ?„ b^e"*^^
as the grantee or as the proprietor of or having any estate or interest or entej^ in
power shall be deemed and taken to be the duly registered proprietor boS^'
thereof.

37. Every instrument presented for registration may be in duplicate instruments
(excepting a transfer whereon a new certificate of title is required) and shall J^^y^^
be registered in the order of and as from the time at which the same is i^^trnmenta
produced for that purpose and instruments purporting to affect the same entitled to
estate or interest shall notwithstanding any actual or constructive notice be JJioniing to
entitled to priority as between themselves according to the date of registra- ^fJJ^SS"



in



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322 VICTORIAN LAND TRANSFER ACT— No. 1.

tion and not according to the date of the instrument. Upon the registration
of any instrument in duplicate the Registrar shall bind up one original in
the Register Book ana shall deliver the other (hereinafter called the
duplicate) to the person entitled. {Mudgway v. Bavif and Buich^ 1 ;
Sharpe v. Hadley, 3; Pannan v. Fannan, 16; B'Albrdyhill v. D* Alhrdykill,
82; Fatchell v. Maunsell, 113; KUsling v. Mitchelson, 123; Wildash t.
Hutchison, 132. N. 35; Z. 33; S. 56, 58; T. 62-65, 35. See See^, 26,
42 0/1885 Act, and Sec. 29 of ISS7 Act.)

No notice of 38. The Registrar shall not enter in the Register Book notice of Miy

eSered^io* trust whether express implied or constructive but trusts may be declared by

Begister any document and a duplicate or an attested copy thereof may be deposit^

with the Registrar for safe custody and reference and the Commissioner

SSaJi^°* should it appear to him expedient so to do may protect in any way he

trusts may may dcom advisable the rights of the persons for the time being beneficiaGj

^„^**^J*"*^ interested thereunder or thereby required to give any consent but li

registered rights incident to any proprietorship or any instrument dealing or matter

registered under this Act shall not be in any manner affected by the

deposit of such duplicate or copy nor shall the same be registered.

(National Bank v. National Mortgage and Agency Company, 12 ; St. Oeorge

V. Bur ett, 67, 175 ; Outhbertson v. Swann, 144 ; Miller v. Stewart 172 ; «

parte Bennington, 217. N. Q6 ; Q. 61-80, 89 ; S. 161, 162 ; T. 62-66.)

Existing 39. No instrument affecting land of which any person shall be registered

ActropJaied ^ proprietor under this Act or any memorial of any such instrument shall
JeiSL'to ^® registered under Part XVII. of the " Real Property Statute 1864 " and
land here- such Part 80 far as it relates to any land which shall be under the operation
under ^f ^]j^g a^q^ g^g^u \yQ ^nd is hereby repealed.

Memorial 40. Every memorial entered in the Register Book shall state the

deiined nature of the instrument to which it relates the time of the production of
such instrument for registration the names of the parties thereto and shail
refer by number or symbol to such instrument and shall be signed by the
Registrar. (Aubrey v. Scoft, 79 ; Mangakahia v. New Zealand Timber Co.,
100. N. 37 ; Z. 34 ; S. 51 ; T. 62-37. See Sec. 52 of 1885 Act.)

Memorial to 41. Whenever a memorial of any instrument has been entered in the

on dupHcftte Register Book the Registrar shall (except in cases wherein the entire land
instrament contained iu any grant or certificate is transferred) enter the like memorial
on the duplicate grant or certificate and on the dujilicate instrument (if
any) unless the production of the same shall be dispensed with as herein-
after provided and he shall endorse on every instrument registered a
certificate of the time at which the memorial was entered in the Register
Book and shall authenticate such certificate by signing his name thereto and
CertiBcate such Certificate shall be received in all courts of law and equity as conclusive
tiort^be*" ©^i^e^ce that such instrument has been duly registered. (Mudgwai/ v. Davy
eridenoe and BuicJc, 1 ; Barker v. Weld, 31 ; r^ Beat tie, 53 ; re Woods, 95 ; Bucket t
V. Knobbe, 168. N. 34, 38 ; Z. 32, 35 ; Q. 61-34. 45 ; S. 53 ; T. 62-38. See
Sec. ^2 of \^S^ Act.)

instramenta 42. No instrument Until registered in manner herein provided shall be

nnta*regii- effectual to pass any estate or interest in any land under the operation of

^^^ this Act or to render such land liable to any mortgage or charge but upon

such registration the estate or interest comprised in the instrument shall

pass or as the case may be the land shall become liable in manner and

subject to the coyenants and conditions set forth and specified in the



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VICTORIAN LAND iRANSFEE ACT— No. 1. 323

instrument or by this Act declared to be implied in instruments of a like
nature and should two or more instruments signed by the same proprietor
and purporting to affect the same estate or interest be at the same time
presented to the Registrar for registration he shall register and endorse that
mstrument which shall be presented by the person producing the duplicate
grant or certificate of title. (N. 34; Z. 82; Q. 61-43, 77-14; S. 50; T.

62-34.) Proprietor

' of land

entitled to

43. The proprietor of land under the operation of this Act shall be certificate of
entitled to receive a certificate of title to the same and if any certificate be if iaaned to
issued to a minor or to a person under aiiy other disability the Registrar p?"onnn'ier
shall state the age of such minor or the nature of the disability so far as such dis^
known to him. (N. 31, 45 ; S. 69-2 ; Q. 61, 94 ; T. 62-32.) J^^^| ^o ^

44. Two or more persons who may be registereu as joint proprietors ^IteJS IT
of land shall be deemed to be entitled to the same as joint tenants and in all joint pro.
cases where two or more persons are entitled as tenants in common to undi- Erjo^*^
vided shares of or in any land such persons may receive one certificate for B23f*Je„^^
the entirety or separate certificates for the undivided shares, {^x parte in common
Locke, 43. (N. 86, 87 ; Z. 54, 62 ; Q. 61, 40 ; S. 74, 188, 1, 92 ; T. 62-88.) Si3S:?t'<S^.

tificate of

45. Upon the transfer of any land and upon the lease of any freehold '»'i®
land to two or more persons as joint proprietors with the i^ords " no j^g^^.^^^ ^^
surnvorship '* endorsed thereon the Registrar shall enter such words in the the words
memorial of such transfer or lease and also upon any certificate of title yoraWp^to
issued to such joint proprietors pursuant to such transfer and sign his name operate to
thereto Two or more joint proprietors of any land or of any such lease or SSirper-
of any charge may by writing under their hands direct the Registrar to JJ°' *^".
enter the words "no survivorship" upon the grant certificate of title or teSSdeau'
instrument relating to the property In every case alter such words shall ^Sd^hJut
have been signed by the Registrar whether under this or any preceding «» order
section it shall not be lawful for any persons other than the proprietors
registered to transfer or otherwise deal with the property without the order

of the Supreme Court or a Judge thereof obtained on motion or petition or
the order of the Commissioner. (Feafherstone v. Ranlon, 4 ; Saunders v.
Cabot, 15 ; Chomley v. Firebrace, 21 ; Coleman and Clark v. Riria, 46 ; Van
Damme v. Bloxam^ 105 ; Kirkham v. Julien, 109 ; Franklin v. Ind, 156 ;
Shackell v. Lindsay, 174 ; Boss v. Victoria Permanent Building Society, 180.
See note to See. 16, ante ; also note to Sec, 2, Land Transfer Act, 1871.)

46. Before making any such order the Court or Judge or Commissioner Notice to be
shall cause notice of the intention so to do to be advertised once at least in g"^^^***^®^: ^
one newspaper published in the City of Melbourne or circulating in the i/riJL*to
neighbourhood of the land and shall appoint a time within which it shall be °^^
lawful for any person interested to show cause against such order being

made after the expiration of which time it shall be lawful for the said Court
or Judge or Commissioner to give directions for the transfer of such land or
lease or charge to any new proprietor or proprietors solely or jointly with or
in the place of any existing proprietor or proprietors or to make such order
in the premises as shall be just for the protection of anv persons beneficially
interested in such property or in the proceeds thereof and on such order
being deposited with the Registrar he shall make such entries and perform
such acts for giving efEect thereto as the provisions of this Act may render
necesBary. (N. 18 ; S. 35.)



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324



VICTOBIAN LAND TBANSPER ACT— No. 1.



Certifloate 47. No Certificate of title issued upon an application to bring land

dJSfT??w- under this Act or upon an application to be registered as proprietor on a
deneeofUie transmission shall be impeached or defeasible by reason or on account of
^ any informality or irregularitj in the application or in the proceedings pre-

vious to the registration of the certificate and every certificate of title issued
under any of the provisions herein contained shall be received in all courts
of law and equity as evidence of the particulars therein set forth and of the
entry thereof in the Register Book and shall be conclusive evidence that the



Online LibraryAustraliaThe land transfer laws of Australasia: being the full text with side notes ... → online text (page 56 of 83)