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unregistered interest, any rule of law or equity to



the contrary notwithstanding," and the knowledge
of any such trust or unregistered interest is not
to be imputed as fraud. To further protect a
registered proprietor, it is provided by section 124
that no action of ejectment shall be sustained
against him, except in certain specified cases, and
in all other cases the production of the certificate
of title " shall be held in every Court of Law or
Equity to be an absolute bar and estoppel to any
such action against the registered proprietor, any
rule of law or equity to the contrary notwith-
standing.'* Section 126 further protects any
bona fide purchaser or mortgagee for valuable
consideration from any action of ejectment, etc,
even where the title of the registered Tcndor or
mortgagor is defective. The 135th section re-
ferring to adverse possession has been already
dealt with. Taking all these sections together, it
is quite obvious that the Legislature intended to
simplify the transfer of land by making the cer-
tificate of title of a registered proprietor sufficient
and absolute proof of the existence in him at the
date of the certificate of the estate or interest
which the instrument certifies that he holds, and
for this purpose the Act disregards other interests
not appearing on the face of the certificate, and
enables the registered proprietor to transfer a
good title to a purchaser unaffected by the existence
of such unregistered interests. It is in conformity
vrith this view that the Supreme Court of South
Australia, dealing with the precisely similar words
of the Real Property Act of 1861 of that pro-
vince, have repeatedly held that the registered
proprietor, under a certificate of title, holds the
land comprised therein absolutely free from all
encumbrances not notified thereon, and is not even
bound by his own demise made prior to the date
of the certificate. See (inter alia) the following
cases in the " South Australian Law Reports " :—
Manning T. Grossman, vol. 6, p. 130; 2Va»^frv.
Lord, vol. 8, p. 81 ; Buckett v. Knohhe, vol. 8, p.
86 ; Hunter Y. Flayei% vol. 9, p. 101. And as to
the power of a Coiut of Equity to interfere to
redress hardships owing to the force given to the
certificate of title, see in the same reports the
cases of Brady v. Brady^ vol. 8, p. 219 ; Cnth-
hertson v. Swann, vol. 11, p. 102 ; and Formhyx.
Adelaide Corporation, vol. 14, p. 114u The case
of Wadham v. Buttle, decided in 1879 (vol. 13,
p. 1), was in some respects similar to the one now
before us, with the distinction that the holder of
the certificate of title, who was the claimant in
ejectment in that case, was an "applicant" pro-
prietor within the meaning of the 135th section
before alluded to, and it was, therefore, held thai
the question of adverse possession under the
Statutes of Limitation had been improperly left
to the jury, and a new trial was granted to enable
the true issue (viz., the alleged fraudulent ob-
taining of the certificate of title by a false declara-
tion as to possession) to be left to the jury. •* If "
(said Judge Gwynne) " the defendants cannot
get rid of the certificate of title in this manner,
they are bound by it, for it is absolute and inde-



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feasible eyidcnc©, and no Court can refuse to
receWe it as such." Concurring generally in the
view which the South Australian Court has taken
of the effect of a clean certificate of title when
produced as evidence on the part of a claimant in
ejectment, we believe wo are giving effect to the
expressed intention of the Legislature of this
Colony bj holding in the present case, which is a
common law action of ejectment, that the claimant
is entitled to recover upon production of his cer-
tificate of title, there being no evidence of any
adverse interest created after the date of such
certificate of which this Court can take notice.
We are of opinion that the Statutes of Limitation
do apply to land held under the Real Property
Act, but that in each case the Statutes commence
to run aeainst the registered proprietor from the
date of his certificate of title. If there is a previous
adverse possession or outstanding unregistered
interest Except in cases falling within the 135th
section), the new certificate, to again adopt the
graphic language of Justice Q-wynne in Hunter v.
Flayer, "acts Uke a wet sponge and wipes the
slate clean," or as Chief Justice Hanson says in
the same case, " it causes all other interests to
cease and determine." In cases which come
within the 135th section of the Act, that is, when
a proprietor has secured his certificate of title by
a false declaration that no one is in adverse
possession of the land applied to be brought under
the Act, in these cases, or in other like cases of
direct fraud, a Coiu't of Common Law can by
vii^ue of the exception contained in the 40th
section of the Act, go behind the certificate of
title and inquire whether it was in fact obtained
by fraud, and, if so, consequently void. The
precise point in this case appears to have arisen in
the Colony of Tictoria in the case of Michel v.
Michel, 4 W. W. and A. B. 18, in which it was
held that in actions of ejectment a certificate of
title is only ]prim& facie evidence of plaintiff's
title, and his right to the possession may be met
and defeated by evidence of possession for fifteen
years by other than the plaintiff or those through
whom he claims. But this decision is based upon
the express language of the Victorian Transfer of
Land Statute. The 49th section of this Statute
(corresponding in other respects to the 40th
section of the Tasmanian Act) makes the land
included in a certificate of title issued to a
registered proprietor subject ** to any iright sub-
sisting under any adverse possession of such land."
In the absence of any such restrictive words in
t^ Tasmanian Act, we are not at liberty to intro-
duce a similar restriction into the section we have
to interpret, but must give effect to the enactment
according to its apparently plain meaning. We,
therefore, decide that the production by the
claimant in ejectment in this case of a clear cer-
tificate of title to himself in respect of the land
sought to be recovered, together with formal
proof of the identity of the laud described in the
certificate with that described in the writ, was
absolute and conclusive evidence of his right to



the possession of the land claimed, in the absence
of any evidence of a recognition by him sub-
sequently to the date of the certificate of any
tenancy by the defendant, or of any subsequently
created adverse interest. The defendant's con-
tention, therefore, fails on both grounds. The
verdict for the claimant will stand, and the rule
to set it aside will be discharged with costs. Sir
Henry Wrenfordsley : Of course I agree with
that judgment.

Note.— Compiled and courteously supplied
by James White, Esq, Recorder of Titles,
Tasmania, for purposes of this publication and in
the absence of regular reports.

S. Account Stated — Coitrgr v, Spenci —
When Maintainable — Cormderaiionfor Executed
Contract.'] — C. Verbally promised S. in considera-
tion of £600 that he would not lodge a caveat
against the bringing of certain land under the
Transfer of Land Statute, that he would assist S.
in obtaining a certificate of title, and would give a
transfer of his interest. C. carried out the con-
tract as far as he could, the land was brought
imder the Act, an increased contribution being
made to the guarantee fund, and it was agreed
that £50 should be deducted from the sum to be
paid to C. : — Hold, that though C. could not
recover on the agreement, since it was not in
writing, he could maintain his action upon an
account stated for the amount of tho considera-
tion. 2 V.L. E. (L.) 278.

O. Acknowledgment — Certificate of —
In re Kerr — Objection to Register Land —
Acknowledgment of Melease of Dower — Certifi-
cate of — Insufficiency of] — It is a good
objection to an application to register land,
under the Transfer of Land Statute, as
free from dower, that the certificate of ac-
knowledgment of the wife releasing her dower
does not contain tho name of the place at which
the acknowledgment was signed, nor state that
the Commissioner before whom it was signed was
not the person employed to prepare the deed.
The Transfer of Land Statute, 1 A. J. R., 163.



Ackno\yledgment, Insufficiency of.
(See Insufficiency.)

Acknowledgment of Dower. See " Re-
lease,*' No. 6, ante.



T. Action against Insurance Fund—
Oakden and others v. Oibbs — Tranrfer of Land
Statute {No, 301), sees. 27, \4Jd— Action against
Assurance Fund — Omission of Registrar to
endorse signed memo, that land had been brought
under the Act — Loss to plaintiff through lending
money on mortgage of land as under general law
aftrr it had been disposed of under the Act.] — Sec.
146 of the Tranfer of Land Statute (No. 301)
applies only to a loss by deprivation of an actual
interest in land, and not to a loss of an ezpectonoy



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of an interest sustained by the plaintiff through
a fraud which the apparent owner of land was
enabled to commit, through the neglect of the
Registrar to endorse (under sec. 27) on the last
material registered document lodged, on an appli-
cation- to bring land under the Act, a memo, that
the land had been brought under the Act ;
whereby the plaintiff advanced money on mort-
gage of the land, as under the general law, with-
out notice that the land had been otherwise trans-
ferred. V. L. B., Yol. 8 (L.), p. 380.

8. Action by Mortgagor — Griffin t. Dunn
— Consfint bff Mortgagee — Transfer of Jtand
Statute^ sec, 94.] — In an action of ejectment by
a mortgagor of land against the representative of
his mortgagor, the objection that no consent of
the plaintiff's mortgagee to the bringing of the
ejectment, as required by sec. 94 of the Transfer
of Land Statute, has been stated or proved, may
be cured by amendment, and cannot, therefore,
be taken on appeal. Such an objection, moreover,
is not one of which the Judge of the County
Court is bound to take notice unless raised by the
parties. 4 V. L. E. (L.), 419.

O. Louch T. Bcdl — Sees. 93 and 94 Transfer of
Land Statute — Action by Mortgagor for use ami
occupation brought without consent of mortgagee
— Rule nisi for a nonsuit.'\ — Mr. Molesworth
moved the ruleabsolute. Mr.Hodges showed cause.
The action was brought to recover an amount due
for use and occupation of premises at Benalla,
and a verdict was given for the plaintiff, damages
£40. The premises had been in the occupation
of a person named Byrnes, who assigned his
estate to trustees. The trustees let the premises
to the defendant Ball, who remained in possession
for several months. The plaintiff was the holder
of a certificate of title to the property, subject to
a mortgage. It was contended for the defendant
that the plaintiff could not sue for use and occu-
pation of the property without having obtained
the consent in vnriting of the mortgagee to the
action being brought. Sections 93 and 94 of the
Transfer of Land Statute were referred to. The
Court held that the consent of the mortgagee was
not necessary to an action of this kind. Inasmuch
as the mortgagee could not bring such an action
as the present, it did not come within the pro-
visions of section 94 of the Statute. A. L. T.,
1879, p. 10.

XO. Action for Damages — Fotheringham
T. Archer — Declaration — Plea — DemurrerJ] —
Where a person fraudulently personates the
owner of land, brings such land under the Real
Property Act, and has the name of a peison to
whom he has sold, registered as the proprietor,
any action for damages must be brought against
such first-mentioned person, though he has never
been the proprietor ; and an action will not lie
against the Registrar of Titles under section 118
of that Act. W. W. and A. B. Rep., vol. 5,
L. 96.



11. Action of Ejectment — Slack y. Dom-
ton— Section 49, Transfer of Land Statist—
Effect of Certificate of Title on rights of existag
tenant.'] — The plaintiff in person appUed for %
rule nisi to enter a verdict for himself. The
action was one of ejectment to eyict the defendant
from a hotel at Emerald Hill. The hotel formed
part of the property that was in litigation in the
suit of Slack v. Atkinson. Plaintiff relied upon a
certificate of title issued to him in pursuance of
the decree of the Court in that suit, as giving
him an indefeasible title to the ground against
the defendant. It appeared, however, that while
Atkinson wns still in occupation of the pn^jerty,
after the decree, but before the certificate of tatJe
was issued to Slack, he had granted a lease of the
premises to Mr. Downton, which was afterwards
assigned to Mrs. Downton, the defendant. Bj
section 49 of the Transfer of Land Statute, a cer=
tificate is issued subject to the right of aoj
'* tenant." Mrs. Dovmton being a tenant of tbie
property at the time the certificate of title ww
issued to Slack, it was contended for the defen-
dant that Slack could not recover. At the trial a
verdict wtlb given for the defendant, but leave
was reserved to the plaintiff to move to enter s
verdict. The Court held that, under section ^
of the Transfer of Land Statute, the plain tifi^t
certificate of title vras subject to the rights of
Mrs. Downton as lessee. What those rights
were, or how they were to be got rid of, was
another question, with which it was not necessary
to deal on this application, but while they existed
the defendant could not be ejected from the
premises by this mode of procedure. Rok
refused. A. L. T., 1879, p. 2.

12. National Bank v. National Mortga^ and
Agency Co. — Land Transfer Act, 1870, sec. 119
— Actual Fraud — Notice of Breach of lV«jf—
Company — Agent — Trustee.] — Where a person
has notice not only of the existence of a trust but
also of the nature of that trust, and takes a mort-
gAfie from the trustees which is a fraud upon the
trust, he is a party to the fraud, and is not pro-
tected by section 119 of the Land Transfer Act,
1870. Where a person accepts from A. a transfer
of property belonging to B., with which A., to tl»
knowledge of the purchaser, has no right to deal,
such a transaction is an actual fraud, and is not
protected. A company cannot retain a benefit
obtained through the fraud of its agent. B. and
M. were trustees under the will of V. whereby
they were directed to mortgage certain land for
certain purposes. They accordingly mortgaged
to the N. M. and A. Co. in pursuance of the trust.
Afterwards A. V. and J. V. (persons faaiing a
residuary interest under the will) being indebted
to the bank, B. and M. guaranteed the payment
of the debt, and aftei'wards gave the bank a seeood
mortgage to secure the overdraft to A. V. and J.
y. The same person was manager of both mort-
gage company and bank, and at the time of the
second mortgage knew of the existence and naturs



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of the trusts under which the land was held, and
consequently that giving the mortgage was a
breach of trust on the part of B. and M. : — Held,
that this was a fraud and was not protected by
the 119th section of the Land Transfer Act, 1870,
and was invalid as against the beneficiaries under
the will of V. N. Z. L. R., Supreme Court, vol.
3, 267.

13, Sx parte Bowan — Transfer of Land
Statute — Bringing Land under the Act — Mistake
in area stated in Croum Grant — Adjustment Certi-
ficate — Practice.^ — This was a summons to the
Registrar of Titles requiring him to uphold
objections to the issue of a certificate of title to
half-an-acre of land at Caulfield. The area was
said to be in excess of that comprised in the
Crown grant for allotment 41, Parish of Prahran,
at East Elstemwick. It was stated in giving
judgment that the Commissioner of Titles was at
liberty to obtain any evidence to satisfy himself
as to the validity of the claim of an applicant.
He was to have all the facts before him, and was
then to exercise his discretion. The practice to
require an adjustment certificate had sprung up,
but was not binding in law. In case of doubt the
Commissioner can take the opinion of the Court.
An officer could not exact fees except under
authority of an Act of Parliament. An applicant
might satisfy the Commissioner that he was
entitled to the land vrithout any adjustment cer-
tificate, and doing so, would bo entitled to a
certificate. Summons allowed. A. L. T., vol. 6,
p. 88.

l^fc. Adjustment Certificate — Ex parte
Rowan — In re the Transfer of Land Statute —
Parcels — Original Crown Allotment — Surplus
Area — Application to hring land under the
Transfer of Land Statute — JSvidence.^—Vfhere
application had been made to the Registrar of
Titles to bring under the Transfer of Land
Statute an original Crown allotment, and to have
included in the certificate of title a surplus over
the measurements and area specified in the parcels
of the Crown grant, it is the duty of the Registrar
to accept all relevant evidence tendered to prove
that such surplus pabsed by the grant so as to
entitle the applicant to it. The Registrar has no
right to insist upon production of a certificate
from the Lands Department, as the only evidence
upon which he can act.

Semble : That a regulation of the Crown Lands
Department requiring payment of the value of
such surplus land, before issuing an adjustment
certificate acknowledging the grantee's right to
it, is quite unwarranted by law. Y. L. R. vol. 9,
L. p. 286.

IS. Administration — ^qmiffgrj v. Cabot —
Administration Act^ 1879 — Seal Estate unad-
ministered of person dging before Administration
Aet — Practice — Non-joinder of Administrator —
Will of Lands^Land Transfer Act, 1870, sees.



46 and 119 — Fraud — Notice — Purchasing Land
without enquiry.'] — The right of action with
regard to real estate belonging to a person who
died before the coming into operation of the Ad-
ministration Act, 1879, remains m his heir-at-law
or devisee, and does not pass to his administrator.
Per Prendergast, C. J. : — If in such an action it
is necessary to join the administrator as plaintiff,
as non -joinder, is not groimd for a nonsuit. When
a man agrees to sell land to another and receives
payment of the purchase money, and the purchaser
dies, it is a fraud in the vendor to buy back the
land from the purchaser's widow, without
enquiring whether the purchaser left any children,
or whether the widow had any right to dispose of
his interest. It is a fraud within the meaning of
section 46 of the Land Transfer Act to bring the
land so bought under the provisions of the Land
Transfer Act with the knowledge of these facts.
Fraud, under section 46, includes everything
comprehended under that term in Courts of Equity.
Per Gillies, J. : — No probate need be taken out of
a will relating solely to land, and the devisee can
deal directly with the land. N. Z. L. R., Ct.
App., Sup. Ct., vol. — , p. 19.

XO. Pannan v. Pannan — Real Property Act oj
1861 — Ejectment — Administration — Registered
Proprietor — Prior Grant — Powers of Registrar •
General under Clause 79 of above Act.'] — In eject-
ment by administrator to whom a certificate of
title had been issued, in pursuance of clause 79
of the Real Property Act of 1861, defendant
claimed by virtue of a grant of the land made
prior to the death of the registered proprietor.
Verdict directed for the plamtiff, with liberty
to defendant to move for a nonsuit, on the
ground that the Registrar- General had exceeded
his power in issuing such certificate. S. A. R.,
vol. 6, p. 106.

X7. Administration Suit — Macartney v.
Kesterson—As to primary liability of personalty
to payment of mortgage debt — Real Property
Statute^ 1864, sec. 150 — Administration Suit to
ascertain construction of Will — The will is de-
scribed in the judgment t which was written.] — Mr.
Holroyd, Q.C., and Mr. A*Beokett for plamtifis ;
Mr. Lawes and Mr. Worthington for defendants.
His Honor said : In this case, I have to deal
with the construction of the will and second
codicil of Mr. Wm. £esterson, dated September
13, 1870, and January 29, 1873. The will left
furniture and specific chattels to his wife — Mrs.
Mary Ann Kesterson, a defendant — and left all
the residue of his real and personal property to
her and two ethers, as trustees. It directed the
trustees with all convenient speed to convert his
personal estate into money, and therewith pay
all his just debts, personal and testamentary ex-
penses, if the same were sufficient ; if not, the
deficiency to be supplied out of the other moneys
coming to their hands, and if the same were
more than sufficient, to lay oUt the moneys



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remaining after the several payments aforesaid
in the manner thereinafter directed of iuresting
moneys. It then directed the trustees to pay
rents, issues and profits, interests and dividends,
of real and personal estate, and invest the un-
appropriated surplus, if any, upon Government
and real securities, &c., and improve the same as
an accumulating fund, and then upon trust to
receive rents, issues, profits, interest, dividends of
real and p««rsonal estate, and pay them among
his daughters equally, with various limitations
over. The will contained a trust for sale of real
and personal estate at a period of those limita-
tions, also leasing powers. By the second codicil,
amongst other things he left his dwelling-house
to his wife for life, and authorised a sale of
unoccupied land at the discretion of his trustees,
and he desired that all mortgages should be paid
off out of the rents received from his property
before the rents should be divided amongst his
cliildren. At his death, his real properly was
subject to a mortgage of somewhat greater amount
than the balance of his personal property after
payment of his other debts, funeral and testa-
mentary expenses. The question I have to deal
with is if it is a debt payable out of the personal
property in exoneration of the real. I think that
under the will payment of mortgages was pro-
vided as of other debts. He doubted whether
the personalty would be sufficient or insufficient
for the purpose. If it were more than sufficient
he directed an investment, and that the interest
of the investment should go in the same course
as his real estate; but if the personalty were in-
sufficient, he directed that the deficiency should
be supplied out of the other moneys coming i ■» the
hands of his trustees. The personalty being dis-
posed of, and no immediate provision for sa e of
real estate, the other moneys coming to their
hands would be rents, rente of real estates which
would be diverted from his daughters* estates
imtil all debts, &c., were paid. I have been re-
ferred to Moore v. Moore, 2 De Ot. and S., 602,
much resembling this case, but not so strong as
to the primary responsibility of personalty, not-
withstanding the Act 213, sec. 150 ; also to
Porcher v. Wilson,]l4,W . K , 1001. The codicil
again expresses the same intent, but as it with-
draws part of the real estate from the distribu-
tion among the daughters, the testator may have
thought that it was right to repeat it. Declare
that the trusts of the will of the testator, Wm.
Kesterson, should be carried out under the direc-
tion of this Court. Declare that according to the
said will and codicils, the general personal estate
of the said testator should be applied inpayment
of his general and testamentary expenses, legacies
and debts, including debt« by mortgage, and the
deficiency therefrom made up out of the rents
and profits of his real estate devised to his
daughters and their iseue, postponing their rights
thereto. Declare that a new trustee of the said
will should be appointed instead of Edward
Ashley, who has renounced the said tmst. Befer



it to the master to appoint such tnutee, in case
the defendants, Mary Ann Kesterson and Richard
White Kitchen, do not agree in such appoint*
ment. Direct accounts according to prayer of the
bill. Reserve further directions and costs.
Liberty to apply. A. L. T., 1880, p. 177.



le. Administrator — Paimait y. Fannau—
Seal Property Act, IS61— InieHaU* Meal
Estate, 1867 ^ Transmission — Cerii/ieat^ of



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