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

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person named in such certificate as the proprietor of or having any estate or
interest in or power to appoint or dispose of the land therein described is
seized or possessed of such estate or interest or has such power. (Fothering-
ham V. Archer, 10 ; re Thompson and Chipps, 27 ; George v. AustraliM
Mutual Provident Society, 56 ; Van Damme v. Bloxam, 105 ; Ashley v. Cook^
137 ; Ettershank v. The Queen, 153 ; Butler v. Saddle Hill Mining Co., 163;
Colechin V. Walker, 203. N. 33 ; Z. 65, 36 ; Q. 61-122, 7 ; S. 52, 80 ; T.
62, 8, 33. See also Act 1878, Sec. 2.)

Certificate 48, In any suit for specific performance or action at law for damages

cioriTeeri- brought by a proprietor of any land under the operation of " The Keal
for r "iflo^* Property Act or of this Act against a person who may have contracted to
iN»rf£muioe purchase such land not having notice of any fraud or other circumstances
or«*tionfor ^jjjch accordiog to the provisions of the said Act or of this Act would affect
the right of the vendor the certificate of title of such proprietor shall be
held to be conclusive evidence that such proprietor has a good and valid title
to the land for the estate or interest therein mentioned or described and
shall in any such suit entitle such proprietor to a decree for the spedfc
performance of such contract. (N. 112 ; Q. 61 96 ; T. 62-115.)

49. Notwithstanding the existence in any other person of any estate
or interest whether derived by grant from Her Majesty or otherwise v^ch
but for this Act might be held to be paramount or to have priority the
proprietor of land or of any estate or interest in land under the operation
uf this Act shall except in case of fraud hold the same su^ect to such
encumbrances as may be notified on the folium of the Register ]Book consti-
tuted by the grant or certificate of title but absolutely free from all
other encumbrances whatsoever except the estate or interest of a proprietor
claiming the same land under a prior registered grant or certificate of title
and except as regards any portion of land that may by wrong description of
parcels or boundaries be included in the grant certificate of title or instru-
ment evidencing the title of such proprietor not being a purchaser for
valuable consideration or deriving from or through such a purchaser
Provided always that the land which shall be included in any certificate of
title or registered instrument shall be deemed to be subject to the reserva-
tions exceptions conditions and powers (if any) contained in the grant
thereof and to any rights subsisting under any adverse possesbion of such
land and to any pubHc rights of way and to any easements acquired by
enjoyment or user or subsisting over or upon or affecting such land and to
any unpaid rates and to any licence granted by the Board of Land and
Works under the " Mining Statute 1865 " and also where the possession
is not adverse to the interest of any tenant of the land notwithstanding the
same respectively may not be specially notified as encumbrances on such
certificate or instrument. (Mudytoay v. Davy and Buick, 1 ; Sharps v.
Radley, 8 ; Featherstone v. Hanlon, 4 ; Ghomley v. Firehrace, 21 ; Oallash v.
Sohutz, 22 \ Coleman and Clark v. Eiria, 46; Fullen v. Thomson, 74;


rights and
need not be


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Franklin v. Ind,, 156 ; ex parte Broion, 185 ; Bicknall y. Heymaneon, 188 ;
Soherteon v. Keitli, 195 ; McOeary v. Brodziah, 213 ; Hassett v. Colonial
Bank, 188. N. 40 ; Z. 55 ; Q. 61-44 ; T. 62-40. See Sec, 41 of 1885 ^c^)

50. Except in the case of fraud no person contracting or dealing with Purchaser
or taking or proposing to take a transfer from the proprietor of any JjJS'pro!'
registered land lease mortgage or charge shall be required or in any manner p"^*^°°JL
concerned to enquire or ascertain the circumstances under or the considera- by notiw
tion for which such proprietor or any previous proprietor thereof was
registered or to see to the application or any purchase or consideration
money or shall be affected by notice actual or constructive of any trust or
unregistered interest any rule of law or equity to the contrary notwith-
standing and the knowledge that any such trust or unregisi'tered interest is

in existence shall not of itself be imputed as fraud. {Colonial Bank v. Pie^
107 ; Kickham v. The Queen, 159. See also Sec, 59 o/1885 Act.)

51. The person named in any certificate of title as the proprietor of an Astoreror-
estate of freehold in possession in the land therein described shall be held in fint'o?^*^'
every court of law and equity to be seized of the reversion and inheritance !••»«»

in the land immediately expectant upon the term of any lease that may be
mentioned as an encumbrance in such certificate and to have all powers
rights and remedies to which such a reversioner is by law entitled and shall
be subject to all the covenants and conditions in such lease to be performed
and observed by or on the part of the lessor. (Z. 29 ; S. 46.)

52. A devisee or other person claiming any estate of freehold in Derisee maj
possession or a power to appoint transfer or dispose of the same on a trans- JJ^lJi^dM
mission may make application in writing to the CommiBsioner to be registered proprietor
as proprietor thereof and shall produce the will or an office copy or probate

of the will of the deceased proprietor or letters of administration with his
will annexed or the settlement under which such applicant claims and shall
afterwards furnish such other evidence as may be deemed necessary. Such
application shall state the nature of every interest held by any other person
at law or equity in the land within the applicant's knowledge and that he
verily believes himself to be entitled to the estate in or power over such land
in respect to which he applies to be registered and shall also state the value
of the property. The devisee or other person making such application shall
deliver up the duplicate grant or certificate of title prior to his being
entered in the Register Book as the proprietor

53. Such application shall be referred to an Examiner of Titles for his AppUoationi
examination and report who shall afterwards submit the papers to the Com- iSfe^to
missioner who may either reject such application altogether or direct notice gj*^"**'®^
thereof to be published once at leaet in one newspsper published in the City ^

of Melbourne or circulating in the neighbourhood of the land and such pubiSied ^
further publicity to be given to such application as he may deem fit and the
Commissioner shall appoint a time not less than fourteen days from the
advertisement or the first of such advertisements if more than one upon or
after which the Eegistrar shall unless a caveat shall be lodged f orbiddmg the
same register such applicant as the proprietor of such land or estate by
entering in the Eegister Book the particulars of the transmission through
which such applicant claims and by registering a certificate of title to the
land or estate so transmitted Upon such entry being made the applicant
shall become the transferee of such land or estate and be deemed to be the
proprietor thereof Provided always that the person registered consequent
on such direction shall hold such land or estate for the purposes for which

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it may be applicable by law but for the purpose of any dealings therewith
under the provisions of this Act he snail be deemed to be the absolute
proprietor tnereof The Commissioner may direct a caveat to be entered
by the Registrar for the protection of the interests of any other persons
interested in such land or estate.

Bemftinder- 54. Any porsou entitled in remainder reversion or otherwise on a

J^ioneiT transmission may apply to be registered as so entitled in like manner and
m»7*ppi7 supported by the hke evidence as near as may be as is herein provided
tSpedM*'** with respect to a devisee or other person claiming an estate of freehold
•nch in possession. Such application shall be dealt with in the like manner

AppUostion as is mentioned in the last preceding section and any entry made thereupon
wforred ^^^^ hsLYe the same effect and the person registered shall hold the land for
the same purposes and shall have the same powers as is and are mentioned
in such section. If there shall be any doubt dispute or litigation under this
or under either of the last two preceding sections as to the true construc-
tion or legal validity or effect of any will or settlement relating to any
freehold land or estate or if the person entitled under any of the provisions
of this Act to any land or estate under any will settlement or instrument
cannot be ascertained the Supreme Court sitting in the exercise of its
equitable jurisdiction may appoint a person to be registered as the represen-
tative of such land or estate and such person when registered shall become
the transferee and be deemed to be the proprietor thereof for the purposes
of this Act subject however to any directions which shall from time to time
be given by the court sitting as aforesaid touching the disposition thereof or
the dealing therewith. (N. 88 ; Z. 18 ; Q. 61-36 ; S. 47, 188 T. 62-89 86-16.;

Upon BUT- 55^ On the application of any proprietor or of any person entitled to

eating become a proprietor of land under separate grants or certificates of title or
Krtiflcatesa ^"^®^ botli of such documcnts and on his delivering up the duplicates
gingie c«r- thereof the Registrar may issue to him a single certificate of title for the
^b^aS whole of such land or several certificates as to portions thereof in accordance
with such application so far as the same may be done consistently with any
regulations for the time being in force respecting the parcels of land that
may be included in one certificate of title and upon registering any certificate
under this section the Registrar shall cancel the grant or previous certificate
and shall endorse thereupon a memorandum setting forth the occasion of
such cancellation and referring to the new certificate. (N. 97 ; Z. 139 ;
Q. 61-94 ; S. 78 ; T. 62-99.)

A history of 5g, Such references shall be noted in the Register Book and on
deaiinSi'"* instruments filed hereunder as will allow the title to be traced either down-
■^©ctinff wards from or upwards to the original certificate or grant but it shall not be
prMeAed necessary in any certified copy of any certificate grant or instrument to

insert such references and every such copy shall be deemed complete

notwithstanding the omission of such references.

DeiUingt 57. I^pou production of a receipt of the Treasurer of the Colony for

regL^wi t^6 f^l purchase money of any land sold by Her Majesty in fee together

prior to with an instrument dealing with such land signed by the purchaser the

Crown Registrar shall endorse upon such receipt such memorial as he is herein

«^*°^ required to enter in the Register 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 herein

required on the registration of a like instrument after a grant baa been

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registered and so on from time to time with respect to any other dealings
helore the registration of the grant and every such instrument shall there-
upon be held to be duly registered under this Act. The Registrar shall file
such receipt and instrument in the office 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). {Mudgway v. Davy and Buick, 1 ; Mangakdhia v. New
Zealand Timber Gompani/, 100 ; Fitzgerald v. Archer, 101 ; Fisher v. Oqffhey,
102. N. 42-99 ; Z. 30,46; S. 112, 62-93 ; T. 86-11.)

58. The proprietor of land or a lease mortgage or charge or of any Transfera
estate right or interest therein respectively may transfer the same by a pifth
transfer m one of the forms in the Ffth Schedule hereto and a woman Schedule
entitled to any right or contingent right to dower in or out of any freehold

land shall be deemed a proprietor within the meaning hereof. Upon the
registration of the transfer the estate and interest of the proprietor as set
forth in such instrument or which he shall be entitled or able to transfer or
dispose of under any power with all rights powers and privileges thereto
belonging or appertaining shall pass to the transferee and such transferee
shall tne re upon become the proprietor thereof and whilst continuing such shall
be subject to and liable for all and every the same requirements and liabilities
to which he would have been subject and liable if he had been the former
proprietor or the original lessee mortgagee or annuitant. (Ex parte Fllison,
48 ; Bailey v. Chrispy 54 ; exparte hinlay^ 55 ; D'Albrdyhillr, D' Albrdyhill,
82 ; Ashley v. Cook, 137 ; Massett v. Colonial Bank, 138 ; Kelly v. Fuller,
139 ; Palmer v. Andrews, 146 and 147 ; Formby v. Adelaide Corporation^ 199.
N. 42 ; Z. 76 ; Q. 61-48 ; S. 96 ; T. 86187, 62-42.)

59. By virtue of every such transfer as is herein mentioned the Transfer to
right to sue upon any mortgage or other instrument and to recover any JS^^iue^flSe?
debt sum of money annuity or damages thereunder (notwithstanding the under
same may be deemed or held to constitute a chose in action) and all interest

in any such debt sum of money annuity or damages shall be transferred so
so as to vest the same at law as well as in equity in the transferee thereof.
Provided always that nothing herein contained shall prevent a Court of equity Saring
from giving effect to any trusts affecting such debt sum of money annuity or ^^^^^
damages in case the transferee shall as between himself and any other e^uitj to
person hold the same as a trustee. (Mudgway and Davy v. Buick, 1 ; STrwu'*
D'Albrdyhill v. D* Albrdyhill, 82 ; Neil v. Lindsay, 94 ; Mangakahia v. New
Zealand Timber Company, 100 ; Fitzgerald v. Archer, 101 ; Fisher v. Oajffhey,
102 ; Kelly v. Fuller, 139 ; Fornhby v. Adelaide Corporation, 199. N. 3 ; Z.
2, 30 ; Q. 61-60 ; S. 214 ; T. 86-9, 62-3.)

60. the proprietor of land or of any estate or interest in land under Proprietor
the operation of this Act whether of the nature of real or personal property ^JjJintiy
may transfer such land estate or interest to his wife or if such proprietor be inbimeeif

a married woman it shall be lawful for her to make such transfer to her Jnthout^"
husband or it shall be lawful for such proprietor to make such transfer JJjJ*'*^ •"^
directly to himself and another person or jointly with any other person to *
himself alone or to create or execute any power of appointment or dis-
position or to create or limit estates in remainder or otherwise as legal
estates of or concerning land the subject thereof without the intervention of
any precedent or particular estate and also like estates as legal estates
without the employment or intervention of any form of use and upon the
registration of 9uch transfer the land estate or interest shall vest in the

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transferee solely or jointly as the case may be or in the person in whose
favour any such power may have been executed or taking under any such
limitation or otherwise according to the intent and meaning of such instru-
ment and she he or they shall become and be deemed the proprietor or
proprietors thereof.

instrumeB^ 81. Every transfer or other instrument shall be deemed of the same

ZadregS^ oflBcacy as if under seal and when signed by the proprietor and registered

ha^the ®^*^ ^® *® valid and effectual to all intents and purposes for conveying

MineefficMj passing or conferring the estates iotorests or rights expressed to be thereby

acklioJI?* transferred leased or created respectively as a deed duly- executed and

ledged but acknowledged by the same person would have been under any law hereto-

J??S2S^to fore or now in force in Victoria, or as any other form of document would

rJr^^lr^ur ^^^® ^®®° either at law or in equity and every instrument acknowledged

m|n^j* within Victoria by any woman appearing by the Register Book to be

them married (whether a sole proprietor or not) and certified under the hand of

the Registrar or of some assistant Registrar or perpetual Commissioner in the

1^^ Perm in the Sixth Schedule hereto and every instrument acknowledged out

of Victoria by any woman appearing by the Register Book to be married

whether a sole proprietor or not) and certified under the hand of a special

Commissioner in the Form in the said Schedule shall when such instrument

has been registered be as valid and effectual to all intents and purposes as a

deed duly executed and acknowledged or an instrument duly signed and

acknowledged by her would have been under any law heretofore or now in

force in Victoria or as any other form of document would have been either

at law or in equity and such certificate shall be deemed and receired as

suflScient evidence of the due signature and acknowledgment by her of the

instrument therein referred to : Provided always that a married woman

entitled to her separate use and not restrained from anticipation or having

a power of appointment shall for the purposes of this Act be deemed a

feme 8ole. {In re Kerr, 6 ; ex parte Folk, 170; re PyJcett, 171. Q. 6I-4S,

77.14 ; S. 67 ; T. 62-39.)

9ff*i^<^<>' 62. If the transfer purports to transfer the whole or part of the land
deifverod np mentioned in any grant or certificate of title the transferor shall deliver up the
oeUed*8o far ^^P^i^ate grant or certificate and the Registrar shall after registering the trane-
as reganiB fercudorseon the grant or certificate a memorandum cancellingthe same either
on»^T*°° wholly or partially according as the transfer purports to transfer the whole
transferred or part of the land and the duplicate of any wholly cancelled grant or certifi-
JertifiSte to cate shall be retained by him and the duplicate of any partially cancelled
^® ^*uj!f ^^ grant or certificate shall be returned endorsed as aforesaid to the transferor
S^^aoertifl. and the Registrar shall make out to the transferee a certificate of title to
partuntrans- *^® ^^^^ mentioned in such transfer and whenever required by the proprietor
ferred to be of the uutransferred portion shall make out to such proprietor a certificate
proprie\or ^^ ^^^^^ ^ ^^^h portiou. Provided always that if the land be leasehold the
whende- lease and duplicate shall not be cancelled and the latter document instead of
^^^ being retained shall be delivered to the transferee. {Be Beattie, 53 ; ^iggt

V. Waterhouse, 58 ; ex parte Bigly, 17, N. 44; Z. 73, 78 ; Q. 77-28 ;

S. 100-62 ; T. 62-138, 137. See also Sec, 51, of 1885 Act.)

T»Mjeree QQ^ In every transfer of land under the operation of this Act subject

ject*toen- " to a mortgage or charge there shall be implied a covenant with the tranferor
t?kid^Sy ^y ^^® transferee binding the latter and his heirs executors administrators
transferor and transferees that he or they will pay the interest secured by such mortgage
after the rate and at the times and in the manner therein specified and will

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pay the annnitj at the times and in the manner specified in the charge and will
indemnify and keep harmless the transferor and his representatives from and
against the principal snm secured by the mortgage and from and against all
liability in respect of any of the covenants therein contained or by this Act
declared to be implied therein on the part of the transferor. (Ux parte
Bavies If Inman, 208 ; Fhillips v. MeLaehlan, 216. N. 46 ; Q. 61-68 ; S. 97 ;
T. 62-46.)

64. Whenever any transfer or lease of freehold land shall contain the Creation of
words " Together with a right of carriage way over " [specifying or «»•«»"»*•
describing the road or roads over toliich. the easement is created and referrina

to a map endorsed whereon such road or roads is or are coloured hrou)n'\ such
words shall have the same effect and be construed as if there had been
inserted in such transfer or lease the words contained in the Seventh seyenth
Schedule hereto A memorial of any transfer or lease creating any easement schedule
over or upon or affecting any land under the operation of this Act shall be Hemorui
entered upon the folium of the Register Book constituted by the grant or tob^^?*
existing certificate of title of such land in addition to any other entry tered
concerning such instrument required by this Act. {Anderson v. Maori Hill
Borough, 103, 124. N. 43. See also Act 1876, Sec, 3.)

65. Every certificate of any person or corporation sole being the Wordi of
proprietor of an estate in fee simple whether in possession remainder or ^9i^!!^r
reversion and every instrument transferring or creating such an estate to or ^'^"y^^*
in favour of any person or corporation sole shall imply and be deemed to "°^
include the heirs of such person or the successors of such corporation.

(S. 76.)

66. The dower of the widow of any Crown srantee or proprietor of ab to dower
freehold land alienated bv Her Majesty on or after the second day of October ^^^
one thousand eight hundred and sixty-two and the dower of the widow of

any proprietor of freehold land alienated by Her Majesty before that day
(notwithstanding any such widow shall have been married before the first
day of January odo thousand eight hundred and thirty-seven but subject as
to the last-mentioned land to the provisoes hereinafter contained) shall be
barred by the absolute disposition of the land by her husband in his lifetime
or by his will and all partial estates and interests and all mortgages and
charges created under this Act or by will of her husband and all encum-
brancea to which any such land shall under the provisions of this Act be
subject or liable shall be valid and effectual as against the right of his widow
to dower in or out of the same and her right shall also be subject to such
other of the provisions of Part III. of the " Real Property Statute 1864 "
as shall be consistent with this Act Provided always that any right or Subaittinff
contingent right to dower which may subsist in or out of anv land alienated ff^mOTtioned
by Her Majesty before the said second day of October and which shall be in^e ©««»«-
mentioned as an encumbrance in the certificate of title shall not be prejudiced be p«^ **
by this section but no right or contingent right to dower in or out of such J«<^««^
land which shall not have arisen before the land is brought under this Act
or which shall be capable of being defeated by the exercise of any power of
appointment conferred on the applicant owner shall be deemed or mentioned
as such an encumbrance Provided also that no land alienated by Her Baned
Majesty before the said second day of October and the right or contingent noJ^J) Sf^
right to dower in or out of which shall have been actually barred before the IwriTedby
land is brought under this Act shall be liable to a new right to dower in £jjjj"^
favour of the widow of the applicant owner arising under or by virtue of ^'W^
the certificate of title or any entry on the register. {Moyle v. Oihhs, 120.) ^' ^

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ettatM tob«
TMted in tn
tor and to be
dealt with as
for jears of
the intestate



Power to
appoint the
curator to
be the ad-
of undevised


67* In every case in which the Supreme Court sitting in the exercise

of its ecclesiastical jurisdiction shall he satisfied that the proprietor of any
freehold land whether under the " Eeal Property Act " or under this Act
(including an estate pur autre vie whether it would have passed or gone to
heirs or to executors or administrators) having power to dispose of such land
hv will otherwise than solely by appointment by will or by writing in the
nature of a will in exercise of a power or who being a married woman would
have had such power of disposition otherwise than as aforesaid had she been
a ferne sole shall after the second day of June one thousand eight hundred

Online LibraryAustraliaThe land transfer laws of Australasia: being the full text with side notes ... → online text (page 57 of 83)