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

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and sixty-four have died intestate as to such land or without leaving a will
thereof of which probate or letters of administration with the will annexed
shall be granted by the said court within twelve months after the death of
such proprietor such court may on the application supported by affidavit of
any person interested in the estate or of any creditor of the deceased grant
a rule in the Form in the Eighth Schedule hereto that such land shall be dealt
with as if it had been held for a term of years and shall commit the adminis-
tration thereof to any person the said court shall think proper to appoint as
administrator In the event of such rule being granted all the estate of the
deceased proprietor in such land or if a married woman all the estate which
she woula have had therein had she been 2k feme sole shall vest in the adminis-
trator thereof and shall be assets in his hands and be administered without
any distinction between debts by specialty and debts by simple contract
whether the heirs be or be not bound by the specialty debts and otherwise
shall be subject to the same laws and go and be applied and distributed in
the same manner in all respects unless hereby otherwise provided as if such
land had been held for a term of years by the deceased and he or she had
died actually intestate as to the same anything in Part X. of the *' fieai
Property Statute 1864 ** to the contrary notwithstanding Provided always
that if a married woman whether registered solely or jointly with her
husband in her right shall be the proprietor of such land and she shall die
leaving her husband surviving the aistribution thereof shall be in accordance
with the distribution of his personal estate had he died intestate leaving a widow
anything in the Acts mentioned in the Ninth Schedule hereto to the contrary
notwithstanding the intention being that a widower shall stand in the same
position with respect to the distribution of such land as aforesaid of his
deceased wife as she would have stood in with respect to the distribution of
his personal estate had he died intestate leaving her surviving Provided
also that such land shall not be deemed of a wasting nature so as to require
its conversion into money on that ground alone.

68. The Supreme Court sitting as aforesaid may upon any such appli-
cation as aforesaid or upon the application of the Curator of the estates of
deceased persons supported by affidavit of a like nature (so far as may be)
to that required in the case of a £:rant of letters of administration of the
goods of a deceased person appoint such Curator by a rule in the form in the
Eighth Schedule hereto to be the administrator of such land as aforesaid
and every rule when made appointing the Curator to be such administrator
shall vest in and give to and impose on that officer the same estates rights
powers commission duties and liabilities so far as not hereby otherwise
provided as if letters of administration had been granted to him and as if
such land had been held for a term of years by the deceased and every such
rule shall be deemed to be legal process within the meaning of any Act now
or hereafter to be in force relating to the collection and audit of the public
moneys and accounts Provided always that the administration and distribu-
tion of such land shall be in accordance with the last preceding section.



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VICTOUIAN LAND TRANSFEE ACT— No. 1. 331

69» The title of any administrator appointed under either of the last The title of
two preceding sections to the land to be administered and to the rents and SirSMto"'
profits thereof shall upon such entry being made in the Eegister Book as hare relation
hereinafter mentioned relate back to and be deemed to have arisen upon the de»?h^f the
death of the proprietor of such land as if there had been no interval of proprietor
time between such death and entry and if the same person shall be adminis-
trator of freehold land as is administrator of the goods of the deceased
or executor of a will made by him disposing of property other than the
land to be administered or administrator with such a will annexed causes of
action of whatever kind may be joined in the same proceediag by or against
such person but this shall not extend to replevin or ejectment. (Pannan v.
Pannan, 18 ; re McCartJiy, 19 ; Droop v. Colonial Bank, 122. Q. 78-14 ; T.
74-14.)

70. The practice and proceedings so far as may be upon granting Proceeding
letters of administration of the goods of a person dying intestate shall be SSTuon
applicable to administration rules applied for under this Act by any person JjJ*J*P5ji*^
other than the Curator. {Saunders v. Cabot, 15 ; Pannan v. Pannan, 16, 18 ; rate persona
McArtney v. Kesterson, 17 ; re McCarthy, 19. N. 11-3 ; Q. 78-26; 8. 220-2 ;

T. 62-11-3.)

71. Every succeeding Curator shall immediately on his appointment proceedings
and by virtue thereof become administrator of all such freehold land as t!LS^
aforesaid as shall have been left unadministered by any predecessor and the tion luies
laws which now are or shall hereafter be in force concerning the matters curato?s ^
and things to be done bv and the proceedings by or against the Curator and °*°»»

his rights duties and liabilities under rules to administer personal estates
or orders thereupon shall extend and apply so far as may be to rules
appointing him an administrator under this Act.

72. Any rule which shall hereafter be made under the Act of the K«io» fo
Parliament of Victoria number CCXXX. appointing a person or the Curator freThoiSb*'
to be the administrator of freehold land not under the operation of this Act ^^^J^^j^
shall have the same force and effect to all intents and purposes whatsoever toinciude'^
as a rule made under this Act appointing him an administrator of freehold ^®d« this
land and the word owner in the first-mentioned rule shall be deemed to Act
include as well an owner of freehold land not under as a proprietor of provisions
freehold land under the "Eeal Property Act" or under this Act The ^f ^^to"'
Curator herein mentioned shall be deemed to mean the Curator for the time »ppiioabfeto
being under the said Act number CCXXX. and the provisions of such Act J^der^*'^
and the matters and things to be done by and the proceedings by or against

the Curator and his rights duties and liabilities under rules made thereunder
shall extend and apply so far as may be to rules to administer freehold
land made under this Act. {Pannan v. Pannan, 18; re McCarthy, 19. Q.
78,20; T. 74-8, 18, 19.)

73. Upon the receipt of an oflBce copy of the rule appointing an Entry to be
administrator of freehold land and upon the notification in the Government ^^J^^^
Gazette of the appointment of any succeeding Curator the Registrar shall Book of the
on an application in writing of such administrator to be registered as Sg^iSfSd^'*
proprietor in respect to any land therein described enter in the Eegister =^^J»*<>'
Book upon the leaf constituted by the grant or certificate of title of such JSch**entry°
land a memorandum notifying such appointment and the day of the death

of the proprietor when the same can oe ascertained and upon such entry
being made such administrator shall become the transferee and be deemed to
be the proprietor of the estate or interest of the deceased proprietor in such



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332 VICTOEIAl^r LAND TEANSFEE ACT— No. 1.

land or of such part thereof as shall then remam unadministered and shall
hold the same subject to the equities upon which the deceased held the same
but for the purpose of any dealings with such land every such administrator
shall be deemed to be the absolute proprietor thereof. If in any case more
than one such administrator shall be appointed all of them for the time
being shall join and concur in every instrument relating to the land.
(Pannan y. Fannan, 18 ; re MeCktrthyy 19 ; Droop y. Oolonial Bank, 122.
See note to See, 69, ante.)

Byerj sd. 74^ Every administrator appointed under this Act shall be deemed a

under this' trustec within the meaning of any statute now or hereafter to be in force

dMmeda relating to trusts and trustees so far as such statute concerns the applica-

tnistee tiou for or towards the maintenance or education of an infant of income

>ta^ of ^^^ ^^® accumulation and investment of the residue and the application of

trntto the accumulations. (Saunders v. Cabot , 15. Q. 78-16 ; T. 74-16.)



I of 75. The proprietor of any freehold land under the operation of this

Act may lease the same for any term exceeding three years by sifi^ning a
sSeSuio 1®**® thereof in the form in the Tenth Schedule hereto but no lease subject to a
mortgage or charge shall be valid or binding against the mortgagee or annuitant
unless he shall have consented in writing to such lease prior to the same
being registered. (Smith v. Davy, 89, 135 ; Ettershank v. The Queen, 153 ;
Wilson V. Kiny, 166 ; Buckett v. Knobbe, 167, 168. N. 49 ; Q. 61-52 ; S. 93 ;
T. 62-47.)

Ooreiuuitsto 76. In ovory lease made under the provisions of this Act there ah&U

in ewy*^ be implied the following covenants with the lessor and his transferees by
iMaea^inst the lessce binding the latter and his heirs executors administrators and
transferees (that is to say) : — (1) That he or they will pay the rent reserved
by the lease at the times therein mentioned and all rates and taxes which
may be payable in respect of the leased property during the continuance of
the lease unless the same are or shall be payable exclusively by the owner
of the property under any Act or Statute now or hereafter to be in force
relating to municipal institutions or relating to road districts and shires and
the administration of local affairs without the limits of boroughs. (Bucknall
V. Beid, 145.) (2) That he or they will keep and yield up the leased
property in good and tenantable repair accidents and damage from storm and
tempest reasonable wear and tear excepted. (N. 51 ; Z. 156 ; Q. 61-75 ; 8.
124, 130, 152 ; T. 62-49, 62-62. See Sec. 28, 1885 Act,)

Powentobe 77* III evory lease made under this Act there shall also be implied in

^or^ ^ *^® lessor and his transferees the following powers (that is to say) : — (1)
That he or they may with or without surveyors workmen or others once in
every year during the term at a reasonable time of the day enter upon the
leased property and view the state of repair thereof. (2) That in case the
rent or any part thereof shall be in arrear for the space of one month
althouffh no legal or formal demand shall have been made for payment
thereof or in case of any breach or non-observance of any of the covenants
expressed in the lease or by this Act declared to be implied therein on the
part of the lessee or his transferees and such breach or non-observance
continuing for the space of one month it shall bo lawful for the lessor or
his transferees to re-enter upon and take possession of the leased property.
(N. 51 ; Z. 90, 92; Q. 61-70, 71 ; S. 124; T. 62-49, 50.)



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VICTOEIAN LAND TRANSFER ACT— No. 1. 388

78. Whenever in any lease made under tbis Act the lessee shall short forms
employ any of the forms of words contained in column one of the Eleventh Jj kl^**
Schedule hereto and distinguished by any number therein such lease shall

be taken to have the same effect and be construed as if he had inserted sche^
therein the form of words contained in column two of the same schedule
and distinguished by the corresponding number and every such form shall
be deemed a covenant with the lessor and his transferees by the lessee
binding the latter and his heirs executors administrators and transferees but
it shall not be necessary in any such lease to insert any such number.
There may be introduced into or annexed to any of the forms in the first
column any express exceptions from or express qualifications thereof respec-
tively and the like exceptions or qualifications shall be taken to be made
from or in the corresponding forms in the second column.

79. In every transfer of a lease made under the " Eeal Property Act " ^^^J^^
or this Act and in every transfer of a grant for years there shall be implied on ^mafer
a covenant with the transferor by the transferee binding him and his heirs ^^^••^
executors administrators and transferees that he or they will thenceforth

pay the rent by the lease or srant reserved and perform and observe all the
covenants contained in the lease or grant or by the said Act or this Act
declared to be implied in the lease and on the part of the lessee or his
transferees to be performed and observed and will indemnify and keep
harmless the transferor and his representatives against all actions suits
claims and expenses in respect of the non-payment of such rent or the
breach or non-observance of such covenants or any of them. (Z. 84 ; S.
162.)

80. The Commissioner upon proof to his satisfaction of recovery of ^^co^^yo'
possession by a lessor or his transferees by any legal proceeding may direct Ey uSUSrto
the Registrar to make an entry of the same in the Register Book and the ^^rS^jJ^j
term for which the land was leased shall upon such entry being made Book
determine but without prejudice to any action or cause of action which

shall previously have been commenced or have accrued in respect of any
breach or non-observance of any covenant expressed in the lease or by this
Act declared to be implied therein. (Colonial Bank v. Rahbagey 126;
Equitable Building Society v. Bo9S^ 140 ; Wadham v. Buttle^ 155 ; Otago
Harbour Board v. Spedding, 165.)

81. Upon the insolvency of the proprietor of any lease made under Mortgagee
this Act subject to one mortgage only or to several mortgages if owned by fntirMtofaa
the same person the Eegistrar on the application in writing of the mort- insohent
gagee or his transferees accompanied by a statement signed by the assi^ee ip^SYe
of such insolvent refusing to accept such lease shall enter in the Register entered m
Book a note of such refusal and such entry shall operate as a foreclosure thSLSeJnd
and as a transfer of the interest of the insolvent in such lease to the mort- i*°„^of ^*
gagee^^is transferees and if he or they shall neglect or refuse to make appSr ™*^
such application as aforesaid within twenty-one days after notice in writing

in that behalf from the lessor or his transferees shall have been served on
the mortgagee or his transferees by being given to him or them or by being
sent through the post office by a registered letter directed to him or them
at his or their address as stated in the mortgage or transfer thereof the
Begbtrar on the application in writing of the lessor or his transferees to be
registered as surrenderee or surrenderees of the lease accompanied by such
a statement as aforesaid and proof of such neglect or refusal shall enter
in the Begister Book notice of such statement and of such neglect or



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334 VICTOEIAN LAJSTD TEANSFER ACT— No. 1.

refusal and such entry shall operate as a surrender of such lease discharged
from the mortgage or several mortgages aforesaid but without prejudice to
any action or cause of action which shall previously have been commenced
or have accrued in respect of any breach or non-observance of any covenant
expressed in the lease or by this Act declared to be implied therein. {Be
Win. Biggs, 59 ; Bank of New South Wales v. Palmer, 108.)

JjJ^J^f 82. A lease made under this Act may be surrendered and determined

dered hj ' as Well by Operation of law or under any statute now or hereafter to be in
by^klwe^* forco relating to insolvents and their estates as by the word " surrendered "
with oonoar- with the date being endorsed upon such lease or on the duplicate thereof
£S^°' (if any) and signea by the lessee or his transferee and by the lessor or his
transferee and attested by a witness. The Begistrar shall enter in the
Register Book a memorandum recording the date of such surrender and
shall likewise endorse upon the duplicate (if any) a memorandum recording
the fact of such entry having been made. Upon such entry in the Register
Book the estate and interest of the lessee or his transferee shall vest in the
lessor or in the proprietor for the time being of the reversion and inheritance
in the land immediately expectant on the term and production of such lease
or duplicate (if any) bearing such endorsement and memorandum shall be
BuflScient evidence that such lease has been legally surrendered Provided
that no lease subject to a mortgage or charge shall be so surrendered with-
out the consent in writing of the proprietor thereof. (Kearton v. Bichardton,
126. N. 50 ; Z. 89 ; Q. 61-54 ; S. 120, 92 ; T. 62-48.)

imd'^** 83. The proprietor of any land under the operation of this Act may

ivemh'^^ mortgage the same by signing a mortgage thereof in the Form in the Tirelfti
Schedule Schedule hereto and may charge the same with the payment of an annuity
Thirteenth by signing a charge thereof in the Form in the Thirteenth Schedule hereto.
^***^"^^ {Queen v. Watton, 91. Q. 61-2, 60 ; S. 128 ; T. 86-17.)
chw^not**' 84. A mortgage and a charge under this Act shall when registered as
MtranSer hereinbefore provided havo effect as a security but shall not operate as a
transfer of the land thereby mortgaged or charged and in case default be
Prwjedurein j^^Ae in payment of the principal sum interest or annuitv secured or any
default part thereof respectively or in the performance or observance of any
covenant expressed in any mortgage or charge or hereby declared to h^
implied in any mortgage and such default be continued for one month or for
such other period of time as may therein for that purpose be expressly fixed
the mortgagee or annuitant or his transferees may serve on the mortgagor
or grantor or his transferees notice in writing to pay the money owing
on such mortgage or charge or to perform and observe the i^oresaid
covenants (as the case may be) by giving such notice to him or them
or by leaving the same on the mortgaged or charged land or by sending
the same through the post office by a registered letter directed to the then
proprietor of the land at his address appearing in the Register Book.
D'Alhrdyhill v. UAlbrdyhill, 82 ; ex parte Bay nee, 82 a.)
Power to sell 85. If such default in payment or in performance or observance of
covenants shall continue for one month after the service of such notice or
for such other period as may in such mortgage or charge be for that purpose
fixed the mortgagee or annuitant or his transferees may sell the land
mortgaged or charged or any part thereof either altogether or in lots by
public auction or by private contract and either at one or at several times
and subject to such terms and conditions as may be deemed fit and may buy
in or vary or rescind any contract for sale and resell in manner aforesaid



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VICTOEtAN LAND TEANSEER ACT— No. 1. 335

without being liable for any loss occasioned thereby and may make and sign
such transfers and do such acfcs and things as shall be necessary for
effectuating any such sale and no purchaser shall be bound to see or enquire
whether such default as aforesaid shall have been made or have happened or
have continued or whether such notice as aforesaid shall have been served or
otherwise into the propriety or regularity of any such sale. {Miller v.
JUarrisey, 181. N. 66 ; Q. 61-88 ; T. 62-54. See See. 4A of 1885 Act,)

86. The purchase money arising from the sale of the mortgaged or AopUoation
charged land shall be applied as follows : If the sale be by the mortgagee or mon^'***^
his transferees — First m payment of the expenses of and incidental to such

sale and consequent on such default secondly in payment of the moneys
which may be due or owing on the mortgage thirdly in payment of subse-
quent mortgages and of any money which may be due or owing in respect /
of any subsequent charge in the order of their respective priorities and the ''
surplus (if any) shall be paid to the mortgagor Provided always that if the
sale be made by a mortgagee or his transferees and there is a subsequent
charge the parchase moneys after there shall have been made thereout all
proper prior payments shall be deposited by him or them in the manner and
names and for purposes corresponding with those after mentioned. If the
sale be by the annuitant or his transferees — First in payment of the expenses
of and incidental to such sale and consequent on such default then in
payment of the moneys which may be due or owing to the annuitant or his
transferees and the residue shall be deposited by him or them at interest in
the savings bank or in some other bank in Melbourne in the joint names of
the annuitant or his transferees and of the Eegistrar to satisfy the accruing
payments of the charge and subject thereto for the benefit of the parties
who may be or become entitled to the residue of the deposited money.

87. Upon the registration of any transfer signed by a mortgagee or Registrar
annuitant or his transferees for the purpose of such sale as aforesaid the to mlebj
estate and interest of the mortgagor or grantor in the land therein described "**J[^52unt
at the time of the registration of the mortgage or charge or which he was

then entitled or able to transfer or dispose of under any power of appoint-
ment or disposition or under any power herein contained shall pass to and
vest in the purchaser freed and discharged from all liability on account of
such mortgage or charge and of* any mortgage charge or encumbrance
registered subsequent thereto excepting a lease to which the mortgagee or
annuitant or his transferees shall have consented in writing and the purchaser
when registered as the proprietor shall be deemed a transferee of such land
and shall be entitled to receive a certificate of title to the same.

88. [Elepealed by Sec. 2, of 1867 Act.]

89. Besides his other remedies every first mortgagee or annuitant for 5J**Ji5J?S^t
the time being and every transferee of a first mortgage or charge for the n»y distrain
time being shall be entitled as often as it shall happen that the interest or SccuplerVor
annuity or any part thereof respectively shall be in arrear for twenty-one JJ^^°®^
days and after seven days shall have elapsed from an application to the the Bmoimt
occupier or tenant for the payment thereof to enter upon the mortgaged or Jy^uch^"*
charged land and distrain the goods and chattels of such occupier or tenant tensnt or
for the arrears of the said interest or annuity and the distress and distresses ^^"p*®*"
then and there found to dispose of in like manner as landlords may do in
respect of distresses for rent reserved upon common demises and out of the

sale moneys to retain the moneys whicn shall be so in arrear and all costs
and expenses occasioned by such distress and sale Provided that no occupier



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336 VICTOEIAN LAND TRANSFER ACT-No. 1.

No oooapiar OF tenaut shall be liable to paj to any such mortfi^agee or annuitant or trans-

UAbiDfor (eree a greater sam than the amount of rent which at the time of making

cmtersom Buch application for payment shall be due from such occapier or tenant and

amoant^f any amouut so paid as well as any amount which shall be paid by him to

reot^acfcaaUy j^uy gQch mortgagee or annuitant or transferee during the time he may be in

u^^ ^ the receipt of the rents and profits shall be held to be pro tanto satisfaction

of the rent. {OhomUy v. Firehraoey 21 ; Bume v. Stewart ^ 28 ; Barker t.

Weld, 81 ; s/ellicoe v. Wellington Loan Ck>.. 50 ; D'Albrdyhilly. D'AlbrdyUll,

82; reg, v. Tideman, 99; Bote v. McNeil, 118; Hart v. Stratton, 119;

Manning v. Oroseman, 127 ; re O'Connell, 169 ; Shackell v. Lindsay ^ 174

St, George v. Burnett, 175. N. 113 ; Q. 61-61 ; T. 62-52.)

tobI^!S*^cd ®0. In erery mortgage made under the provisions of this Act there
in erery shall be implied covenants with the mortgagee and his transferees by the
mortgage mortgagor binding the latter and his heirs executors adminstrators and
transferees that he or they will pay the principal money therein mentioned
'on the day therein appointed and will so long as the principal money or anj
part thereof shall remain unpaid pay interest the: eon or on so much thereof
as shall for the time being remain unpaid at the rate and on the days and in
manner therein specified also that he or they will repair and keep in repair
all buildings or other improvements which shall have been or shall be erected
or made upon the mortgaged land and that the mortgagee and his transferees



Online LibraryAustraliaThe land transfer laws of Australasia: being the full text with side notes ... → online text (page 58 of 83)