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

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166


Pbktohell y. Maunsell


113,148


Woods, re


96



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Alphabetical Index to Defendants' Names.



90.
Adams ... ... 180

Adelaide Corporation ... 199
A. M. P. Society ... 66

Anderson ... ... 192

Andrews ... 85, 146, 147

Archer ... 10, 101

Aylwin ... ... 62



Ball

Blain

Bloxam

Bolton

Brady

Brightling ...

Bnxiziak

Brown

Bryan

Buick

Bvdler

Burnett

Butler

Buttle

Cabot

Capper

Carpenter ...

Chipps

Chrisp

Cleland

Clements ...

Coleman

Colonial Bank

Cook

Cox

Crossman ...

Oullen

DaTey
Davy
J>ibbs

Downton ...
DoTe

Dunn

Elliott

Firebrace ...

FuUer

Ckfcfifney

Gibbs

Glenn



9
... 30
... 105
110, 125a
... 75
... 166
... 21S
121, 183, 215a
... 161

1
... 185
... 175
... 135
... 155

... 15

... 86

... Ill

26, 27, 70

... 34

1

... 115

... 207

122, 138, 173

137, 160

... 221

... 127

... 178

... 135
1
... 67
... 11
... 37
8

... 133

... 21
... 189
... 102
7, 49, 120
... 20



Hackett

Hadley

Hall

Hamilton

Hammill

Hanlon

Harcourt

Harvey

Herb^

Heymanson..

Hill

Hunter

Hutchison ..



NO.

... 112

3

98

106,154

... 38

4

... 104

... 59a

... 63

... 188

... 161

... 112

... 132



Ind

Inglis

Inman, ew parte


... 156
... 28a
208,219


James
Jarrett
Jones
Julien


184, 196
96,142
... 134
... 109


Keith

Kesterson ...
King
Knobbe


... 195
... 17
... 166
167, 168


Lesser
Lindsay
Loder
Lord


... 150
96,174
... 158
... 25


McCarthy ...
MoLachlan ...
McNeU

Maori Hill Borough
MaunseU ...
Michel

Mitchelson ...
Morrissey ...


83
... 216
... 118
103,124
113, 148
21a, 216
... 123
181, 214


National Mortgage and

Agency Company ... 12
N.Z. Timber Company ... 100



O'FarreU

Page
Palmer



61

107
108



Park

Pate

Pegus

Perry

Player

Powles

Prendergast. .

Price



Queen

Babbage

Bawlings

Registrar Titles

Reid

Richardson ...

Riria Puwhanga

Roache

Robertson ...

Ross

Rowe

Rudwolt



KO.

81,87
. 218a
84
. 182
. 24
. 129



47, 163, 159



.. 126
.. 152
.. 141
.. 145
.. 125
.. 46
.. 187
.. 191
.. 140
.. 165a
29,143



Saddle Hill Mining Co. ... 163
Sandhurst Building Society 179
Scbutz ... ... 22



Scott


... 79


Seldon


... 32


Sellick


... 78


Spedding ...


... 165


Stewart


28, 44, 172


Stratton


... 119


Stuart


... 164


Sutherland ...


... 204


Thomson


74, 157


Tideman ...


... 99


Victoria Building Society 180


Wade


... 203


Wadham ...


88,149


Waterhouse...


... 68


Watson


91, 93, 176


Weir


,„ 136


Weld


... 31



Wellington Loan Go.
Williams ...



60
186



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Explanation of Abbreviated References.



A. J. B. — Australian Jurist Reports
A. L. T. — Australian Law Times

N. 8. W. L. R.— New South Wales Law Reports
N. 8. W. 8. 0. R.— New South Wales Supreme

Court Reports
N. 8. W. W. N.— New South Wales Weeklj

Notes
N. Z. App. — New Zealand Appeal Cases
N. Z. J. — New Zealand Jurist
N. Z. L. R.— New Zealand Law Reports

N. Z. L. R. S. C. 1 New Zealand Law Reports
N. Z. L. R. Sup. Ct. ) (Supreme Court)



Q. L. J. R. — Queensland Law Journal Reports
Q. L. R — Queensland Law Reports

S. A. R. — South Australian Reports

Tas., Ta.— Tasmania

V. L. R. — Victorian Law Reports
V. R. — Victorian Reports

W. & W.— Wyatt and Wehb ReporU (Victoria)
W. W. k I'B.— Wyatt, Webb and A'Beckett't
Reports (Victoria)



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ABA]



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DIGEST OF CASES.



N,B, — In a few cases where ike records are scarce or difficult to get at^ a full report is
inserted instead of a digest only.

Readers should be careful in the first instance to search under the large type side headings
for any subject on which information is needed.



X» Abandonment — Mudgtoay t. Datjy and
Buick — Statute of Limitations — AdTcrse
possesBion — 3 & 4 Will 4., cap. 27 — Crown
out of Possession — Information of Intrusion
— Scire facias — 21 Jac. 1., cap. 14 — Crown
Suits Act, 1881— Crown Grants Act, 1883,
tections 22, 23 — Supreme Court Bule 471 — New
Zealand Company — Land Order — Crown Grant
—9 <k 10 Vic, cap. 382—10 & 11 Vic, cap. 112—
14 & 15 Vic, cap. 86—31 & 32 Vic, cap. 93~
]^ew Zealand Company's Land Claimants Ordi-
nance, 1851 — New Zedland Company's Land
Claimants Ordinance Amendment Act, 1861 —
liaches — Purchase without notice — Deed —
Insufficient description — Land Transfer Acts
— Ultra Tires — Begistration — Priority —
Deeds Begistration Ordinance, 1842 — Deeds
Registration Act, 1860 — Deeds Begistration
Act, 1868.] — Per Biohmond J., jwacrff : Whether
the report of a commissioner under section 12 of
the New Zealand Company's Land Claimants
Ordinance, 1851, is conclusive.

McManaway t. Cleland (1 N.Z. App. Cas.
343) doubted : — Held, per Johnston & Williams,
J. J. (Prendergast, C. J., dissentiente) : Where
the Crown has been out of possession of land
for more than twenty years, and then makes a
grant of it, the statute 21 Jac 1, cap. 14, giving
the person in occupation a right to the possession
until the Crown lias obtained a judgment against
him or an information of intrusion, ceases to
apply.

Semble: That the proceeding by writ of in-
trusion is abolished by the Crown Suits Act, 1881.
Where title is derived imder a land order of the
New Zealand Company, followed by a Crown
grant, twenty years adverse possession before the
iBSue of the grant will not operate as a bar against
the grantor. See Johns t. Rivers. (2 N.Z. App.
Caa. 344.)

In 1841 A., the holder of land under a New
Zealand Land Company's order, conveyed parts
of his lands to purchasers by de^s which imper-
fectly described the land sold. In 1843 the
purchasers abandoned the land, which was, there-
after, occupied adversely by other persons. In
1851 A. conveyed the land to B., who made a
claim for a grant. In 1859 C. entered into
possession of the land without title. In 1875 the
New Zealand Company's Land Claimantb' Com-
missioner reported tnat B. was entitled to a grant,
but in 1879 the Commissioner purported to with-



draw his report. In 1884 C. took conveyances of
the land from the original purchasers, and applied
to the Commissioner to nave his claim investi-
gated. In 1885 a Crown grant was issued to B.,
ante-vesting to 1851 : — Held, per Johnston and
Williams, J. J., affirming Bichmond, J. (Prender-
gast, C. J., dissentiente) : 1. That by sections 3
and 4 of the New Zealand Company's Land
Claimants Ordinance, 1851, C.'s claim was too lat«
to be entertained, and by the New Zealand Com-
pany's Land Claimants Ordinance Amendment
Act, 1861, it was also too late, as being derived
from conveyances dated after 1861. 2. That B.,
being a purchaser for value without notice, and
having got in the legal estates, had a good title.
3. That any rights which the original purchasers
might have had under 9 & 10 Vict., cap. 382, sec.
51, to have the grantee declared a trustee for them
had been lost by the abandonment of the land for
nearly forty years. 4. That as the land in the
deeds of the original purchasers was insufficiently
described, no equity against the land could be en-
forced.

Semble : That the Statute 31 & 32 Vict., cap.
93, validated section 12 of the New Zealand Com-
pany's Land Claimants Ordinance, 1851. N. Z.
L. K. (App. 1886, vol. 4. p. 192.)

a. Absence — Ground of Refusal — ^j?

parte Bowman — Transfer of Land iStatute (No.
301), sec. 135 — Summons to Registrar of lilies —
Co*^*.] — TheBegistrar of Titles is not justified
in refusing to bring land under the Act, solely on
the grounds of an interpretation by the Com-
missioner of Titles, of a devise in a will, in
opposition to a decision of the Supreme Court on
the same devise ; and that, although his inter-
pretation is supported by a decision of the Supreme
Court of a neighbouring colony upon the same
devise. His course, if an appeal depends, is to
postpone the determination of the application,
until the question has been finally decided on
appeal. But, as he is guardian of the assurance
fund, the Court would be slow to certify "that
there was no probable ground for such refusal,"
so as to deprive him of his costs of a summons
under sec. 185 of the Transfer of Land Statute.
When, in the investigation of title, one objection
appears which thp Commissioner considers fatal,
yet all questions on the title should be considered ;
the applicant ought not to be compelled to take
out several summons on one title. V. L. B., vol.
7, L. 314.



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3. Abstract of T\t\e^ Shan>e t. HudUy —
Vendor and Purchasers Act — Beat Property Act
-^ Error in Chrant — Requisitions — Title — Certifi-
cate — Marketable Title — Conditions of Sale —
Abstract — Implication — Purchaser — Rescission
— Estoppel — Inaccurate Survey — CostsJ]— These
were proceedings instituted by a yen dor, Mr.
Johnson Sharpe against a purchaser, Mr. John
Claj Hadlej to compel him to complete the pur-
chase of a property in Murray Street, Hobart.
The proceedings were resisted by the purchaser
on the ground that part of the property sought to
be coiiTeyed by Mr. Sharpe (although included in
his grant) was comprised in a prior Certificate of
Title under the Keal Property Act to Mr. Samuel
Dove. The suit was argued on several occasions
before Mr. Justice Dobson in Chambers. Mr. A.
Dobson (instructed by Messrs Dobson and
Mitchell) appeared for the vendor, Mr. John
Mclntyre (instructed by Messrs. Gill and Ball)
for the purchaser. On the 8rd of December, His
Honor dehvered judgment in favour of the pur>
chaser as follows : — This is a summons under the
Vendor and Purchasers Act taken out by the
vendor, asking that the purchaser may be com-
pelled to complete his purchase, and that it may
be declared that the vendor is not bound to com-
ply with certain requisitions made by the pur-
chaser as to the title. The first and substantial
requisition is that the vendor's title consists of a
land grant issued under the Real Property Act of
the land sold, and the purchaser objects that a
portion of the land contained in the vendor's
grant is included in a Certificate of Title issued to
one Samuel Dove, whose property adjoins that
sold. After the sale was made by Sharpe to
Hadley, it was discovered that whilst the land
grant to Sharpe correctly corresponded with the
boundaries of the land he contracted to sell to
Hadley, yet that Dove's Certificate of Title to the
adjoining land overlapped Sharpe's boundary and
even included a portion of his house. Dove's
Certificate of Title was prior in date to Sharpe's
grant, and would, therefore, primd facie, take
priority over it. Section 135 of the Real Property
Act, however, provides that on first bringing land
under the Act, a Certificate of Title shall be void
as against the Title of anjr person adversely in
actual possession of and rightly entitled to such
land at the time it was brought under the Act.
This section seems to have been intended to meet
such a case as the one which has arisen, and
renders Dove's Certificate of Title void as against
Sharpe, so far as Sharpe can establish that he or
those under whom he claims were at the time of
the issue of Dove's Certificate in possession of and
entitled to any portion of the land included in
such Certificate. That Sharpe or those under
whom he claims was in such possession and so
entitled there is evidence before me, and therefore
evidence of Dove's Certificate being void so far as
it overlaps the land that was in Sharpe's possession.
I should, therefore, arrive at the conclusion that
there is a fair holding or even marketable title in



Sharpe. The conditions of sale, however, set out
that the vendor will deliver an Abstract deducing
his title from a Crown grant, and the question
arises whether the title that the Tendor has
deduced is from a Crown or land grant within the
meaning of this condition. A title under such a
grant implies one under which in case of a
question of title arising, the production of the
grant is a sufficient protection as the basis of the
title. But, in the present case. Dove's Certificate
of Title primd faeieyestB in him a strip of Sharpe's
land ; and Sharpe's grant being subsequent in date
cannot prevail against it, unless he is prepared to
prove that Dove's Certificate is pro tanto void
under the provisions of section 135. The pur-
chaser's title would, therefore, not depend solely
on this grant to Sharpe, but upon his being able
to adduce evidence to show that Sharp« was in
possession and entitled to the land when Dove
obtained his Certificate. This does not appear to
me to be the title that the vender offered to gire
the purchaser, and consequently the purchaser ij
not bound to accept it. X adjourned the summoni,
and suggested that application should be made to
the Recorder of Titles under section 136 to
summon Dove before him to show cause why the
error in his Certificate should not be corrected.
If Dove objects to go before the Recorder, he
could then have been summoned before the Ck>ait
or a Judge to show cause why his Certificate
should not be corrected. The Recorder did not
see fit to grant a summons, and unless and until
that is done Sharpe has no means of removing
the grounds of objection on which the puivhaser
relies. The vendor, Sharpe, after this gave notice
that he rescinded the contract under conditiGQ
No. 6, which is as follows : — " If any requisition
or objection be made which the vendor is unable
or unwilling to remove or comply with, or if any
difficulty shall arise which may prevent the com-
pletion of the sale (of which difficulty the yendor
shall be sole jud^e), the vendor shall be at liberty
to rescind the sale ; in such case, the purchaser
shall receive back the deposit in full, but be shall
have no claim to interest costs, or compensation."
The summons came on again before me on 29th
November upon the question of who was to pay
the costs. It was contended for Hadley that all
the costs attending the abortive sale should be
borne by Sharpe. On the other hand, it was con-
tended for Sharpe that the sixth condition of sale
empowered the vendor to rescind, and that if he
did so, the purchaser had no claim for costs. To
this, it was answered that it was too late for
Sharpe to exercise the power to rescind after he
had taken stef)s to enforce the contract, and
Tanner v. Smith, 10 Sum. 410, and Ery 455, wcw
cited. The language used in the condition upon
which the case is decided is much more restricted
than that used in condition 6, as it did not contain
the words ** if any difficulty shall arise which may
prevent the completion of the sale, of which diffi-
culty the vendor shall be sole judge." It seems to
me that such a difficulty arose when it was fint



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dUcoTered that Dove's Certificate overlapped
Sharpens land. The difficulty then was not
necessarily insuperable, and the vendor attempted
to remove it by applying to the Recorder to act
under seotion 186, but upon his refusal to do so,
the difficulty became insuperable, and giving
ordinary effect to the words of the condition, I
think the vendor had, therefore, the right to act
upon it and rescind the contract. The costs re-
ferred to in the condition are, I am of opinion,
the ordinary costs attending the purchase of land,
such as perusing abstract, drawing requisitions on
title, but not the costs of litigation commenced oy
the vendor against the purchaser to enforce the
contract. Such costs are payable according to the
discretion of the tribunal before which the pro-
ceedings are taken, and they may even be incurred
and paid before the power to rescind is exercised.
The case is one of hardship on both sides, and
neglect is not attributable to either vendor or
purchaser, but arises, as it appears to me, from
the inaccurate survey of Dove's land. The
vendor, however, took out the summons to compel
the purchaser to complete the purchase, and has
failed in it; instead of this, the vendor might
at once have rescinded under condition 6. Under
these circumstances, I think that the costs of this
summons must be borne by the vendor.

NoTJC. — This report was compiled and cour-
teously supplied by James White, Esq., Becorder
of Titles, Tasmania, for purposes of this publica-
tion and in the absence of regular reports.

^. Absolute and undisturbed posses-
slon — Featherstone v. Manlon — Ejectment —
Certificate of Title — Adverse Possession — Hx-
tinguishment Title — Applicant Proprietor —
Lim itation — Real Property A ct — Pu r chaser^ s Pro -
tection — Notice — Certificate Paramount — Beal
Property Act, South Australia — Transfer Land
Statute, Victoria.'] — The Acting-Chief Justice
gave the reserved judgnient in this cause. He
said : — This was an action of ejectment tried
before His Honor (the Acting Puisne Judge), in
which a verdict was found for the claimant in
respect of the land claimed, which was comprised
in a Certificate of Title issued to him under the
Real Property Act on the 28th July, 1885. At
the trial leave was reserved to the defendant to
move to set aside the verdict and to enter up a
verdict for the defendant, upon the ground that it
had been proved in evidence and found by the jury
as a fact that the defendant had been in absolute
and undisturbed possession of the land claimed
from 1862 until the time of the verdict. A rule
nisi was obtained by the defendant to set aside the
claimant's verdict upon the grounds — 1. That the
certificate of title of the claimant was void under
the 135th section of the Real Property Act (25
Vict., No. 16) because of the adverse possession of
the defendant at the date of such certificate. 2.
That by reason of the adverse possession of the
defendant for more than 12 years before action,
the alleged title of the claimant was by virtae of



the Statute of Limitation, 3 and 4 Will. 4, c.
27 (extended to Tasmania by 6 Will. 4, No.
16) and 39 Yict., No. 1, extinguished. The case
presents questions of some difficulty and of con-
siderable importance, and is so far as appears bare
of direct authority upon the precise points involved.
As to the first groimd : We are of opinion that the
135th section of the Real Property Act does not
apply to the certificate of title issued to the
claimant. It applies only to a certificate issued to
an *' applicant proprietor," or to persons claiming
or deriving title under him, and it declares such
certificates to be void " as against the title of any
person adversely in actual occupation of and
rightfully entitled to such land or any part thereof
at the time when such land was so brought under
the provisions of tbe Act, etc." An " applicant "
proprietor must be, we think, one who has applied
to be registered as proprietor, and as every such
applicant in order to be registered is required by
law to make a declaration that " there is no person
in possession or occupation of the said lands
adversely to my estate or interest therein," the
case contemplated bv the 135th section could only
arise when the first bolder of a certificate of title
had procured it by means of a false declaration,
and in that case the Legislature declares the cer-
tificate so fraudulently procured to be void. B ut,
in the present case, the land claimed was origin-
ally granted (partly in the year 1870, and partly
in the year 1874) to one John Hanlon. The
grants were pursuant to an enactment of the
Legislature registered in the Real Property office
without any application by or consent of John
Hanlon, or any declaration as to possession, and
when so registered the land comprised in such
grants became subject to such of the provisions of
the Act as were applicable, of which in our opinion
the 135th section was not one, the word "grant "
being omitted (apparently by design) from that
section, though it is used in the immediately suc-
ceeding section and in others in the Act, in direct
conjunction with the words "certificate of title or
other instrument " (Sec. 34). The correct term
to describe a grantee such as John Hanlon would
be ** registered proprietor," which term is not used
in the 135th section. The second ground — that
the title of the claimant was extinguished by the
Statutes of Limitation — was sought to be met by
the arguments adduced by the claimant's coimsel*
that the Statutes of Limitation did not apply to
any laud held under the Real Property AcU
This sweeping contention was based upon tlie large
and general words of the first section of the Act
that '* all laws, statutes, Acts, ordinances, rules,
regulations, and practice whatsoever relating to
freehold and other interests in land, so far as in-
consistent with the provisions of this Act, are
hereby repealed so far as regards their application
to land under the provisions of this Act." These
appear to be very comprehensive words, but it may
be doubted whether they are more than *' a
rhetorical flourish," to adopt the description of Mr.
Justice Gwynne, of South Australia, when con-



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sidering the similar words used in the South
Australian Act of 1861, from which our Real
Property Act was in 1862 closely copied. The
section is, after all, little more than surplusage, as
CTcry Act of Parliament must by implication, if
not by express words, repeal all preTious legisla-
tion inconsistent with the proTisions contained in
the now enactment. The important question then
arises, are theproTisionsand policy of the Statutes
of Limitation inconsistent with the provisions of
the Real Property Act ? To answer this correctly
it is necessary to examine somewhat closely the
object and provisions of this large and important
enactment, under which so much of the convey-
ancing of tlie Colony is at present carried on, and
which being made compulsorily applicable to all
Crown land which was not in 1862 under contract
for alienation, must, while it remains in force,
every year control a still larger proportion of such
conveyancing. The object of the Real Property
' Act as stated in its full title was " to simplify the
law relating to the transfer and encumbrance of
freehold and other interests in land," and it pro-
posed to do this by providing short and simple
forms for the transfers, mortgages, leases, or other
of the moie ordinary dealings with land, but
above all by giving to each new purchaser of land
an assured or guaranteed title, which should be
complete in itself, which should have no backward
relation, but shoidd disclose upon its face all its
encumbrances and defects as they existed at the
date of the instrument of title — called by the Act
a ** certificate *' — to be issued to each successive
purchaser of land . For the purposes of the present
enquiry, there are only three or four out of the
145. sections of the Real Property Act which need
special notion, viz , those relating to the force
and effect of a certificate of title. By the 83rd
section, every certificate of title is to be received
in all Courts of Law or Equity as evidence of the
particulars therein set forth, and, except in cases
otherwise in the Act provided, is to be conclusive
evidence that the person named therein is seized
or possessed of the land described in it for the
estate or interest therein specified. By the 40th
section, it is enacted that '* notwithstanding the
existence in any other person of any estate or
interest, whether derived by grant from the
Crovm or otherwise, which but for this Act might
be held to be paramount or to have priority, the
registered proprietor of land . . under the
provisions of this Act shall, except in case of
fraud, hold the same subject to such encumbrances
. . as may be noted on the folium of the
Register Book constituted by the grant or certifi-
cate of title of such land, but absolutely free from
all other encumbrances, liens, estates, or interests
whatsoever,'* with certain exceptions, none of
which apply to the case of the claimant in the
present action. By the 3 14th section, a purchase
from a registered proprietor is (except in case of
fraud) protected, notwithstanding he may have
had ** notice direct, or constructive of any trust or



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