Australia.

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

. (page 59 of 83)
Online LibraryAustraliaThe land transfer laws of Australasia: being the full text with side notes ... → online text (page 59 of 83)
Font size
QR-code for this ebook


may at all reasonable times until such mortgage be redeemed enter into and
upon such land with or without surveyors or others to view and inspect tlie
state of repair of such buildings or improvements. (jChcmley v. Jhr^r^ee,
21 ; Bume v. Stewart, 28 ; Barker v. Weld, 31 ; reg. Y^Tideman, 99 ; Bmr.
McNeil, 118; Mannings. Croseman, 127. N. 64 ; Z. 95 j Q. 61-69 ; S. W; T.
62-62.)
wMSmunt ®J- ^ mortgagee of or annuitant upon land leased under this Adiod

ofie8«ehoid his transferees after entering into possession of the land or the receipt ol
poMwSfonto *^® rents and profits thereof shall during such possession or receipt and to
become the oxteut of auy benefit rents and profits which may be received become
iMsor ^ and be subject and liable to the lessor of the said land or his transferees or
the person for the time being entitled to the reversion and inheritance
expectant on the term of the lease for the payment of the rent reserved bj
the lease and for the performance and observance of the covenants therm
contained or by this Act declared to be implied therein on the part of Ihe
lessee or his transferees. (N. 59 ; Z. 97 ; Q. 61-62 ; S. 139 ; T. 62-52.)

Short form 92. Whenever in any mortgage made under this Act the mortgagor

bjmoit."*' shall employ the form of words contained in column one of the Fourteenth

gagor to Schedule hereto such mortgage shall be taken to have the same effect and

"**°" be construed as if he had inserted therein in the form of words contained

£hUd^"^ in column two of the same Schedule and every such form shall be deemed

a covenant with the mortgagee and his transferees by the mortgagor binding

the latter and his heirs executors administrators and transferees There may

be introduced into or annexed to the said form in the first column any

express exception from or express qualification thereof and the like exception

or qualification shall be taken to be made from or in the form in the second

column. (N. 68; Q. 61-73.)

^^221^ ^f 93. In addition to and concurrently with the rights and powers conferred

^ legal ^ on a first mortgagee and on a transferee of a first mortgage by this Act

rane^ed to s ^^^U Present and future first mortgagee for the time being of land under

tint mort. this Act and every transferee of a first mortgage for the time being upon



Digitized by VjOOQIC



VICTOEIAN LAND TEANSFER ACT— No. 1. 337

any such land shall until a discharge from the whole of the money secured
or until a transfer upon a sale or an order for foreclosure (as the case may
be) shall have heen registered have the same rights and remedies at law and
in equity (including proceedings hefore justices of the peace) as he would
have had or been entitled to if the legal estate in the land or term mortgaged
had been actually vested in him with a right in the mortgagor of quiet
enjoyment of the mortgaged land until default in payment of the principal
and interest money secured or some part thereof respectively or until a
breach in the performance or observance of some covenant expressed in the
mortgage or to be implied therein by the provisions of this Act Nothing
contained in this section shall affect or prejudice the rights or liabilities of
any such mortgagee or tranferee after an order for foreclosure shall have
been entered in the Eegister Book or shall until the entry of such an order
render a first mortgagee of land leased under this Act or the transferee of
his mortgage liable to or for the payment of the rent reserved by the lease
or for the performance or observance of the covenants expressed or to be
implied therein. {Orey v. WaUon^ 152.)

94. A mortgagor or his transferee shall not either before or after such Mortgagor
default or breach as aforesaid commence in his own name any action at law fai (J/Se**
for or in respect of any cause of action for which a first mortgagee or his »»m« pauBo
transferee may sue under the last preceding section without obtaining the ^thoat»
previous consent in writing of such mortgagee or transferee or his agent to J^J**" ^""
the commencement of such action after giving which consent such mortgagee

or transferee shall not be entitled to bring in his name any action at law in
respect of the cause <5f action specified in such consent Provided however
that if a mortgagor or his transferee shall bring any such action in his own
name and the defendant shall prove the existence of a mortgage the plaintiff
shall not be nonsuited nor shall there be a verdict against him if he prove in
reply that the action was brought with the written consent of the mortgagee
or of the transferee of his mortgage or his agent.

95. Any sum of money which shall become payable to the mortgagor AjppiioaUon
or his transferee under any decree or order in any suit by him in the J^tSn^'
Supreme Court in equity for or on account of any waste or damage of or to from suits
the land mortgaged shall be paid to the first mortgagee or his transferee in ^ot®™°'*'
reduction or satisfaction of the moneys secured and if he shall not be willing

to receive the same or shall thereby be fully paid off" the same or the balance
shall be paid to any subsequent mortgagee or his transferee according to
priority m like reduction or satisfaction and if no mortgagee or his trans-
leree shall be willing or be entitled to receive the same then to the mortgagor
or his transferee for his own benefit.

96. Any mortgagee or his transferee may either before or after judg- Application
ment or execution obtained in any action at law brought by the mortgagor obuSSSy'
or his transferee apply to a Judge for a summons in such action calling on t^SemOTt!
the plaintiff and defendant or their attorneys or agents to attend before a gi!gor ™°
Judge and show cause why any sum beyond twenty-five pounds which shall

have been or shall be recovered for damages in such action or which shall
become payable on the settlement thereof should not be paid to such persons
and for such purposes as are hereinbefore mentioned with respect to money
payable under any decree or order in any suit in equity by tne mortgagor
or his transferee and the Judge hearing the summons shall determine the
matter thereof in a summary manner and shall make such order therein as
to costs and all other matters as may appear to be just and reasonable and



Digitized by VjOOQIC



338 VICTOEIAK LAN^D TRANSFEE ACT— No. 1.

the decision of such Judge shall be final and conclusive against all parties
Provided always that every order made in pursuance of this section shall be
liable to be rescinded or altered by the Court in like manner as other orders
made by a single Judge The Sheriff or other officer who shall have the
execution of any writ of fieri facias issued in such action shall on being
served with a copy of such order obey the same.

t?^onfy% ^^* ^^7 ^^^^J received by a first mortgagee or his transferee under

obtaine/in auy proceeding commenced in his name at law or in equity shall after
Eyamort?^ payment thereout of his costs be applied in reduction or satisfaction of the
g»gee moneys secured and subject thereto shall be disposed of according to the

equities of the parties interested.

^^^^f® 98. Whenever default has been made in payment of the prind^ or

for aS^oJer interest moneys secured by a mortgage and such default shall be continued
i^i**'*^^*^ for six months after the time for payment mentioned in the mortgage the
mortgagee or his transferee may make application in writing to the Com-
missioner for an order for foreclosure and such application shall state that
such default has been made and has continued for the period aforesaid and
that the land mortgaged has been offered for sale at public auction by a
licensed auctioneer after notice of sale served as hereinbefore provided and
that tbe amount of the highest bidding at such sale was not sufficient to
satisfy the moneys secured by such mortgage together with the expenses
occasioned by such sale and that notice in writing of the intention of the
mortgagee or his transferee to make an application for foreclosure has been
served on the mortgagor or his transferees by being given to him or them or
by being left on the mortgaged land or by the same being sent through the
post office by a roistered letter directed to him or them at his or their
address appearing m the Eegister Book and also that a like notice of such
intention has been served on every person appearing by the Register Book
to have any right estate or interest to or in the mortgaged land subsequently
to such mortgage by being given to him or sent through the post office by a
registered letter directed to him at his address appearing m the B^gister
Book Such application shall be accompanied by a certificate of the
auctioneer by whom such land was put up for sale and such other proof of
the matters stated by the applicant as the Commissioner may require and the
statements made in such application shall be verified by statutory declara-
tion. (Orey v. Watson, 152. Q. 61-60; S. 140.)

Appiia^ion 99. Upon such application the Commissioner may direct the Begistrar

Used ^"' to cause notice to be published once in each of three successive weeks in at
least one newspaper published in the City of Melbourne offering such land
for private sale and shall appoint a time not less than one month from the
date of the first of such advertisements upon or after which the Eegiatrar
shall issue to such applicant an order for foreclosure unless in the interval a
sufficient amount has been obtained by the sale of such land to satisfy the
principal and interest moneys secured and all expenses occasioned by such
sale and proceedings and every such order for foreclosure under the hand of
the Registrar when entered in the Eegister Book shall have the effect of
vesting in the mortgagee or his transferee the land mentioned in such order
free from all right and equity of redemption on the part of the mortgagor
or of any person claiming through or under him subsequently to the mort-
gage and such mortgagee or his transferee shall upon such entry being made
be deemed a transferee of the mortgaged land and become the proprietor
thereof and be entitled to receive a certificate of title to the same.



Digitized by VjOOQIC



VICTOEIAN LAND TEANSFER ACT— No. 1. 339

100. Upon production of a memorandum signed bj the mortgagee or DisohsTge
annuitant or nis transferees and attested by a witness discharging the land »n™ Mnm!**
from the whole or part of the moneys or annuity secured or discharging^ any ties
part of the land from the whole of such moneys or annuity the Registrar

shall make an entry in the Register Book stating the time at which it was
made that such mortgage or charge is discharged wholly or partially or that
part of the land is discharged as aforesaid (as the case may be) and upon
such entry being made the land or the portion of land described in such
memorandum shall cease to be subject to or liable for such moneys or
annuity or for the part thereof mentioned in such entry as discharged and
the Registrar shall make a corresponding entry on the duplicate grant or
certificate of title when produced to him for that purpose. (N. 61 ; Z. 108,
160 ; S. 143, 145, 147 ; T. 62-50, 61 ; Q. 51-57, 63, 61-64.)

101. Upon proof to the satisfaction of the Commissioner of the death Entry of
of the annuitant or of the occurrence of the erent or circumstance upon JJ^iSmSty"
which in accordance with the provisions of any charge the annuity thereby
secured shall cease to be payable and upon proof to the like satisfaction

that all arrears of the annuity and all costs occasioned by non-payment
thereof have been paid or satisfied he shall direct the Registrar to make an
entry in the Register Book that such annuity is satisfied and upon such
entry being made the land shall cease to be subject to or liable for such
annuity and the Registrar shall make the like entry on the duplicate as is
mentioned in the last preceding section. (S. 145.)

102. In case a mortgagee or his transferee shall be absent from Mortgage
Victoria and there be no person authorised to give a receipt for the mortgage "e°p2dtS^
money at or after the date appointed for payment thereor it shall be lawful TreMurerif
for the Treasurer of Victoria to receive such mortgage money with all be'I^eST
arrears of interest due thereon in trust for the mortgagee or other person ^om the
entitled thereto and thereupon the interest upon such mortgage shall cease mortgage
to run or accrue and the Registrar shall upon production of the receipt of di8ci»»«e<i
the Treasurer for the amount of the mortgage money and interest make an

entry in the Register Book discharging the land from such mortgage stating
the time at which such entry was made and such entry shall be a valid
discharge from such mortgage and the Registrar shall make a corresponding
entry on the duplicate grant or certificate of title when produced to him for
that purpose. The Treasurer shall from time to time invest all mortgage Moneys
moneys and interest which shall be received by him under this section J^derthis
together with all dividends and interest which shall accrue thereon in ?«''»°°}o ^
Victorian Government securities for the benefit of the persons who shall for *°^®*
the time being be entitled thereto but nothing herein contained shall render
any Treasurer in any manner liable for not investing the same respectively.
The Registrar shall address to the Treasurer requisitions countersigned by
the Commissioner to pay to such persons the moneys to which they may be
entitled hereunder and such moneys shall be issued in like manner as
moneys are now issued from the Trust Fund.

103. A corporation for the purpose of transferring or otherwise deal- Seal of cor.
ing with any land under the operation of this Act or any lease mortgage or fubrt/tuted
charge may in lieu of signing the instrument for such purpose required affix fo^signature
thereto its common seal. The seal of the attorney of any corporation whose Seal of
chief or head office of business shall be out of the colony whether such TOi^",Sira
attorney shall have been already constituted or shall hereafter be constituted tobedeemed
by a power of attorney under a seal purporting to be the common seal of ponuon^''



Digitized by VjOOQIC



34K) VICTOEIAN LAND TEANSFEE ACT— No. 1.

the corporation giving tbe power shall be deemed to be the common seal of
snch corporation within the meaning and for the purposes of this section.
(N. 93 ; Z. 166 ; Q. 61-114 : S. 252, 270.)

o^enanto 104. Every covenant and power to be implied in any instrument by

and powers virtuo of this Act may be negatived or modified by express declaration in the

^^^ifi^or instrument or endorsed thereon and in the declaration in any action for a

negatired breach of any such covenant it shall be lawful to allege that the party

impUed against whom or against whose real or personal representatives such action

bTMrma^ is brought did so covenant precisely in the same manner as if such covenant

^^^^ had been expressed in words at length in such instrument any law or

^***° practice to the contrary notwithstanding and every such implied covenwit

shall have the same force and effect as if it had been set out at length in

such instrument and where in any instrument there shall be more than one

covenantor such covenants as are by this Act declared to be implied in

instruments of the like nature shall be construed to be several and not to

bind the parties jointly. (N. 89 ; Q. 61-76 ; S. 262.)

to pSSSnl 105. Whenever any leasehold land brought under the operation of this

estate of Act or any lease mortgage or charge shall devolve in consequence of the will

pr^rietor ^r iutcstacy of the proprietor thereof probate of his will or letters of

administration with his will annexed or letters of administration of his goods

or the order of the Supreme Court authorising the Curator to administer the

personal estate of the deceased proprietor (as the case may be) or an office

copy of 8U(!h document accompanied by an application in writing from the

executor administrator or curator claiming to be registered as proprietor in

respect thereof shall be produced to the Registrar who shall thereupon enter

wniorpro- in the Eegister Book and on the duplicate instrument (if any) when prodaeed

letton'of for that purpose the date of such probate or letters or order the time of Uie

^Jj^'™- production of the same to him and the day of the death of such proprietor

of court to when the same can be ascertained and upon such entry being made the

be produced executor or administrator or curator (as the case may be) shall become the

transferee and be deemed to be the proprietor of such land lease mortgage

or charge and shall hold the same for the purposes for which it may be

applicable by law but for the purpose of any dealings therewith under the

provisions of this Act he shall be deemed to be the absolute proprietor

thereof The title of every executor administrator or curator becoming a

transferee under this section shall upon such entry being made relate back

to and be deemed to have arisen upon the death of the proprietor of the

land lease mortgage or charge as if there had been no interval of time between

such death and entry. (Saunders v. Cabot y 16 ; MeArtney v. Kesterson^ 17 ;

reFeamley, 97 ; Campbell y, Jarett^ 142 ; ex parte Brown ^ 185. N. 78 ; Q.

61-88, 32 ; S. 76 ; T. 62-79, 74-10, 77-10.)

Sale under 106. No execution registered prior to or after the commencement of

^lecn/Si t^is Act shall bind charge or affect any land or any lease mortgage or

order of charge but the Eegistrar on being served with a copy of any writ of fieri

Court"* facias issued out of the Supreme Court or of any decree or order of such

Court accompanied by a statement signed by any party interested or hie

attorney solicitor or agent specifying the land lease mottgage or charge

sought to be affected thereby shall after marking upon such copy the time

of such service enter the same in the Eegister Book and after any land lease

mortgage or charge so specified shall have been sold under any such writ decree

or order the Eegistrar shall on receiving a transfer thereof in such one of

Fifteeoth the forms in the Fifteenth Schedule hereto as the case requires Twhich

Schedule ^ ^



Digitized by VjOOQIC



VICTOEIAN LAND TEANSFEE ACT— No. 1. 941

transfer shall have the same effect as if made by the proprietor) enter such
transfer in the Eegister Book and on such entry being made the purchaser
shall become the transferee and be deemed the proprietor of such land lease
mortgage or charge. Prorided always that until such service as aforesaid
no sale or transfer under any such writ shall be valid as against a purchaser
for valuable consideration notwithstanding such writ was actually lodged for
execution at the time of the purchase and notwithstanding the purchaser
had actual or constructive notice of the lodgment of such writ Upon
production to the Commissioner of sufficient evidence of the satisfaction of
any writ a copy whereof shall have been served as aforesaid he shall direct
an entry to be made in the Register Book of a memorandum to that effect
and on such entry such writ shall be deemed to be satisfied Every such
writ shall cease to bind charge or affect any land lease mortgage or
charge specified as aforesaid unless a trEinsfer upon a sale under such writ
shall be left for entry upon the Eegister within three months from the day
on which the copy was served. {Kickham v. The Queeriy 47; ex parte
Ellison, 48 ; re Wm. Wadham, 114 ; Hassett v. Colonial Bank, 138 ; J^eil
V. Adams, 130 ; Giles v. Lesser, 150 ; St, Oeorge v. Burnett, 175 ; Beath v.
Anderson, 192 ; Robertson v. Keith, 195 ; re A, Bosquet, 202. N. 97 ; S. 105 ;
T. 62-94. See Sec. 56 o/1885 Act.)

107. Upon the insolvency of the proprietor of any land lease mortgage Deroiution
or charge his assignee shall be entitled to be registered as proprietor m JJne°'°^'
respect of the same and the'feegistrar upon the receipt of an office copy of ^^^^
the appointment of such assignee accompanied by an application in writing

under his hand to be so registered in respect of any land lease mortgage or
charge of such insolvent therein described or of any estate or interest
which he was entitled or able to transfer or dispose of under any power of
appointment or disposition which he might legally execute for his own
benefit shall enter in the Eegister Book upon the folium constituted by the
grant or certificate of title of such land a memorandum notifying the ^pon entry
appointment of such assignee and upon such entry being made such assignee ^n? wSg"-
shall become the transferee and be deemed to be the proprietor of suehland 3**'^®
lease mortgage or charge estate or interest and shall hold the same subject registered
to the equities upon and subject to which the insolvent held the same but P'^p"®'*^'
for the purpose of any dealing therewith under the provisions of this Act Bat to hold
such assignee shall be deemed to be the absolute proprietor thereof. If the ^uS***
assignee shall omit or neglect to make the application aforesaid or to lodge //

a caveat under the general provision relating to caveats hereinafter contained
within seven days after the Eegistrar shall have notified to him by a letter
delivered or registered that application has been made for the registration
of an instrument concerning property (to be in such notice described)
standing in the Eegister Book in the name of the insolvent such instrument
may be registered and thereupon shall not be affected by the order of v
sequestration either at law or in equity If a caveat shall be lodged
pursuant to such notice the same shall be dealt with and be subject to the
same provisions as other caveats with this variation that the fourteen days
notice required in general cases need not actually be given to the caveator
but shall be deemed to have been given on the day on which the caveat was
lodged. {Wildash v. Hutchison, 132. N. 3, 75; Z. 2 ; Q. 61-86; S. 180;
T. 3, 62-76, 77. See Sec. 64 o/*1885 Act.)

108. The Commissioner upon production of sufficient proof of the Marriage of
marriage of a female proprietor of any land or of any lease mortgage or prfetor^*^**"
charge not appearing by the Begister Book to be held for her separate use



Digitized by VjOOQIC



842 VICTOBIAJ^ LAND TEANSPEB ACT— No. 1.

accompanied by an application in writing signed bj such female proprietor
to register her husband as joint proprietor thereof in her right snail direct
the Begistrar to enter in the Begister Book and also upon the duplicate
grant or certificate of title and duplicate instrument (if any) evidencing the
title of such female proprietor when produced to him for that purpose the
name and addition of her husband the date and place of the mama^e and
the time of making such entry and the husband of such female proprietor
shall on such entry being made in the Begister Book become a joint trans-
feree thereof and be deemed to be joint proprietor thereof in right of his
wife Until such entry shall be made she shall be deemed to be the sole and
absolute proprietor of such land Jease mortgage or charge and may transfer
or otherwise deal with the same at law and in equity. (N. 77 ; Z. 165 ; Q.
61-87; S. 62-73, 78; T. 189.)

J^Jl^^ 109. Upon the death in the lifetime of his wife of any husband
of joint pro- registered as joint proprietor with ber of an estate in fee simple or of a lease
priMort mortgage or charge in her right or upon the death of any female proprietor
whose husband shall be entitled as tenant by the courtesy to any freehold
land a rale to administer which shall not be grantable under the provisions
of this Act or upon the death of any person registered with any other
person as joint proprietor of any land (except in cases within the meaning
of the sixty-seventh section of this Act) or of any lease or charge or as joint;
proprietor of any mortgage owned on a joint account in equity the Com-
missioner on the application of the widow husband or person entitled and
proof to his satisfaction of such events as aforesaid may direct the Begistrsr
to register such applicant as the proprietor thereof and she or he shaJi upon
being registered in the manner herein prescribed for the registration of a
like estate or interest become the transferee of such land lease mortgage or
charge and be deemed the proprietor thereof but as regards any tenancy by
the courtesy for the lifetime only of such husband.



Online LibraryAustraliaThe land transfer laws of Australasia: being the full text with side notes ... → online text (page 59 of 83)