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Title.'] — A certificate of title issued under clause
79 of the Real Property Act^ 1861, is not in-
validated by reason that the particulars of trans-
mission through which the applicant claims are
not entered on the register. But it is
sufficient if such certificate purports to be issued
pursuant to the direction of the Lands TiUes
Commissioner, the decision of such Com-
missioner being final and without appeal. An
administrator entitled to real estate of an intestate
by virtue of the Inheritance Act of 1867 is not a
person authorised by clause 79 of the Keal Pro-
perty Act of 1861 to apply to be registered as
proprietor of the lands of an intestate, and the
Real Property Commissioners have no juris-
diction to register transmission to him, but he is
entitled to maintain ejectment by virtue of his
letters of administration, irrespective of the Real
Property Act, and his title of possession dat^s
back to the death of the intestate the moment
such letters are granted. The lands, therefore,
of an intestate of which at the time of his death
he is registered as proprietor, are by virtue of the
Inheritance Act of 1867 removed from the pro-
visions of the Real Property Act of 1861. The
provisions of the Intestates Estates Act, 1867,
making the production ofletters of administration
conclusive evidence that the deceased died in-
testate, do not dispense with the proof of the
death, but the production of such letters of
administration only estabhshes conclusively the
intestacy, when the intestate is, in fact, proved
to be dead. S. A. R., vol. 7, p. 64.

18. Be MacCarthy—Real Property Act, 1861
— Intestate Real Estates Distribution Act, 1867
— Devisee — Trust Estates — Purchaser J^— A. de-
visee under a devise of trust estates of which the
testator was seized in fee-simple as administrator
of an intestate who has died after the Intestate
Real Estates Distribution Act, 1867, came into
operation, is not entitled to sell such land without
the consent of the persons beneficially interested
in the same, nor will the Registrar- General be
compelled to register as proprietor of such land,
under the provisions of the Real Property Act,
1861, a purchaser from such devisee without such
consent. S. A. R., vol. 11, p. 39. See aUo
" Duties* Nonjoinder."

go. Admission Evidence Improperly-

Small and another v. Glen — Inconsistency in
description and delineation of land in a muniment
of title — Where the figures purporting to give tie



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area and lineal measurements on a plan in a Cer-
tijicate of Title under the Transfer of Lands
Statute do not correspond with the land as de-
lineatedy they may he rejected as Falsa demons-
tratio — Disseising] — This was an action of tres-
pass relating to land at Prahran. At the trial
the juiy gave a Terdict for the plaintiffs. A rule
nisi was obtained for a nonsuit or a new trial,
which was argued last term. The material facts
are stated in the judgment. Mr. Walker
appeared for plaintiffs, and Mr. Higinbotham
and Mr. Williams for defendant. The Chief
JiiBtice now delivered the judgment of the Court:
Action for injury to the reversion in a portion of
land delineated on a plan on the record as ex-
tending from Chapel-street to Cato-street,
Prahran, 198ft. in length and 54ft. lOjin. in
width. Pleas not guilty, and reversion not in the
plaintiffs as alleged. Verdict for the plaintiffs.
The present rule was obtained for a nonsuit on
points reserved, and also for a new trial on the
grounds of mis-direction and improper, reception
of evidence. The plaintiffs proved their having
let this land to a tenant on lOtb December, 1875,
for four years, and the payment to them of rent.
They also proved a certificate of title under the
Transfer of Land Statute, dated 30th November,
1870, duly issued to them for the same portion
of land, described in the certificate as the land
delineated and coloured red on the map on the
margin containing 3D 9-19ths perches or there-
abouts, this map on the certificate corresponding
in all particulars with that on the record. The
land formed part of portion No. 41, Prahran, the
Crown grant for which had been issued on 10th
December, 1850. It was subdivided and sold.
In the year 1878, the frontage to Cato-street was
newly- fenced by the plaintiflS, and this fence was
soon after out down and removed by the defen-
dant. A renewal by the plaintiffs and removal
by the defendant were both repeated, and for
these I respasses the present action was brought.
The defendant relied on a conveyance to him
from a Mr. John Hawkins, dated 13th July, 1876,
of a strip of land of about 2ft. in width, fronting
Cato-street on the east, and extending on either
side of the plaintiff's frontage. He also con-
tended that by the evidence adduced it was shown
that Hawkins and the others from whom the
plaintiffs derived title, as well as the plaintiffs
themselves, had been out of possession for more
than 15 years, and the present action could not
therefore be maintained. During the conduct of
the defendant's case, the plaintiffs, the cross-
examination of a witness for the defendant,
C)ved the execution of three deeds relating to
d than that the subject of the action. These
deeds, tlie defendant alleged, were improperly
received in evidence. He also contended that,
although the plaintiffs had given evidence of a
possessory title by establishing a tenancy and
payment of rent ' o them, yet they had nonsuited
themselves by proving the certificate of title under
the Transfer ot Land Statute, as it showed only a



right to a piece of land which, commencing at
Chapel-street, did not extend to Cato-street, that
they were bound by the figures on the plan, and
the actual distance between the streets was more
than those figures represented. No title was,
therefore, shown to the narrow strip fronting
Cato-street, on which the trespasses had been
committed, and to which the defendant had es-
tabhshed a title. The question of parcel or no
parcel is generally one for the jury, but in this
case the whole description, as well as position, are
given by a written instrument — the certificate of
title; and the proper interpretation of such a
document is for the Court. The land is described
generally in the certificate, and particularly by
reference to the plan. The land delineated is
that which is comprised in the certificate. On
the plan three straight lines were drawn at right
angles one to the other, forming three sides of a
parallelogram, and close to each of these lines
were written the names of three streets — '* Com-
mercial-road," ** Chapel-street," and " Cato-
street," the part coloured red being represented
as abutting on Chapel and Cato-streets, having a
frontage to each of them. The out«ide bound-
aries are not in dispute— the acreable contents
are evidently given approximately — the land com-
prised in the certificate was that described — not
any particular quantity of land, and as it extends
from street to street, the distance at which those
streets are apart would only be of importance as
regards the contents. If the plan apart from the
figures is to govern, no difficulty arises ; the land
is bounded by one street on the east, and by the
other on the west, the figures describing the
length are erroneous, and the plaintiffs possess
more than the acreable contents mentioned in the
certificate, the excess being covered by the words,
** or thereabouts " j but if the figures are to
govern, it is impossible, consistently with the plan,
to place the land in any other position thereon
than that which it now occupies. If the centre
of a piece of land of the dimensions represented
by the figures is placed in the centre, between
the streets, instead of having a frontage to each,
it would not have one to either. Abutting one
street, it would have a frontage to that one, but
none to the ©ther. We see no reason to justify
the figures being allowed to control the plain and
obvious meaning of the description on the plan, or
the placing the land in any of the uncertain
positions we have suggested — the old maxim, falsa
demonstratio non nocet, may be applied, and the
length given in figures rejected. We entertain
no doubt as to the correctness of this conclusion ;
and as similar cases may arise in the subdivision
or sale of Crown lands, which it is not questioned,
in several instances contain more than the
acreable quantity described, it seems desirable
that our views of the law on the subject should be
known. It is unnecessary to decide whether the
plaintiffs in this casa havinc proved a possessory
as well as a documentary tiUe by certificate, could
on failure of the latter to sustain their case fall



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back on the former ; for the documentary title
baa not failed. The facts of the case to which we
were referred, Davison and others v. Oeni, 1 H.
& N. 744, do not, however, appear to be analogous
to those of the imaginary case submitted. If the
parcels in the certificate did not correspond with
those in the lease, some difficulty might be ex-
perienced in rejecting the effect of the certificate.
As to the defence of the Statute of Limitations,
the eyidence adduced by the defendant failed to
prove a disseisin of the plaintiffs or of any of
those through whom they derived title. The
whole land had been enclosed with a fence, houses
erected on the one part and inhabited ; the other
part had been cultivated by Adams, evidently as
an adjunct to the dwelling-house ; the plaintiffs
purchased the whole from Adams, and remained
in possession. The circumstance that the en-
closure of the western portion was allowad to
become defective, that the materials composing it
were removed, and that a series of trespasses such
as passing across the land, discharging rubbish,
and other acts of a similar nature were committed
by several persons, does not amount to proof of
occupation. No one person asserted he was
ever in occupation of any part, and no one fact
from which occupation could be legitimately in-
ferred was establislied. A direction in such a
case would not amount to a mis-direction, forbad
the jury found for the defendant, such a finding
would have been against evidence. The objection
on the grounds of the improper reception of evi-
dence applies to three deeds — Hawkins to
Everett, Hawkins to Nunnington, and Hawkins
to Tarry. Hawkirs' execution of these deeds was
somewhat irregularly proved for the plaintiffs on
cross-examination of Benrole, a witness for the
defendant. All these deeds relate exclusively to
land west of Cato- street. No reason was given
why they were received in evidence, and save as
improperly increasing the costs of the trial, their
admission appears to be a matter of no import-
ance. The objection was not pressed during the
argument. A finding for the defendant with
these deeds excluded would have been against
evidence, and we do not, therefore, feel justified
in disturbing a verdict on such grounds. The
rule nisi will be discharged. A. L. T., 1880,
p. 197.

gl. Admission against Interest — Chom-
ley V. Firebrace — Transfer of Land Statute (No.
301), sec. 50 — Solicitor and Client — Mortgage
Notice — Breach of Trust — Fraud — Evidence.'] —
A., a solicitor, vras the survivor of two trustees of
a settlement, under which they had power to
invest and to vary investments with the consent
of the tenant for life, and the tenant for life had
power to appoint new trustees, which was never
exercised. A. was also attorney under power of
the defendants, trustees, to invest moneys. He
invested moneys of the settlement trust in his own
name upon mortgages, one under the Transfer
of Land Statute, and paid the income to the



tenant for life, rendering signed accounts referring
to them. Shortly after, being indebted to the
defendants, he, vnthout consent of the tenant for
life, drew and executed transfers of the mort^agei
to them, untiuly reciting receipt of the oonsidera-*
tion moneys. Two days after, he killed himself,
dying in insolvent circumstances. Upon bill by
new trustees of the settlement against the
defendants, seekingare-transfer of the mortgai^ :
— Held, on appeal (affirming the decision of
Molesworth, J.), that as to the mortgagee under
the old law, the defendants should be deemed to
have had notice of A.'s breach- of trust, and
should re-transfer the mortgagee to the plaintiffs ;
and (reversing the decision of Molesworth, J.)
that tlie same principle applied to the mortgage
under the Transfer of Land Statute. The doctrine of
constructive notice is not affected by the Transfer
of Land Statute (No. 801), sec. 50, as protecting
a purchaser. A trustee having invested trust
moneys upon several mortgages in his own name,
rendered accounts to the cestui que trust, signed
by him, giving credit for sums received for mterest
upon such mortgages : — Held, that these docu-
ments were sufficient evidence of the trust, not-
withstanding the Statute of Frauds, and were
admissible in evidence against persons claiming as
assignees from him, after his death, as being ad-
missions by a deceased person against his interest.
The IVansfer of Land Statute (No. 301), sec. 50,
should be construed strictly, its exceptions,
liberally. Fraud in that section applies equally
to the cases of fraud by a purchaser, and by a
vendor. V. L. B., vol. 5, p. 67.

2X (A) Murphy y. Michel^ Certijicate of Title
— Adverse possession.] — In an action of eject-
ment, begun by a writ issued 13th April, 1866,
the plaintiff launched his case by proving a cer-
tifieatd of title, dated 7th April, 1866, which
certified that the plaintiff " is now the proprietor
of an estate in fee-simple " m the land sued for,
'* subject, nevertheless, to such encumbrances and
interests as are notified by memorandum under-
written." Underwritten was the following memo-
randum : — Any rights subsisting under any
adverse possession of the land. The defendant,
in answer, showed that, from 1849 downwards,
the land was in the successive occupation of per-
sons through whom the plaintiff did not claim, *
and the defendant did claim. The plaintiff, in
reply, showed that the persons through whom the
defendant claimed had not the sole occupation,
that no one person then had exclusive possession :
— Held, on a motion to enter a verdict for defen-
dant: (1) That the certificate was a valid one
under the Acts, No. 140 and No. 180, s. 26, and
the regulations issued under the latter ; (2) That
in an action of ejectment such a certificate is only
pri 1 a facie evidence of plaintiff's title and his
right to the possession, and is met and defeated
by evidence of possession for fifteen years by
others than the plaintiff or those through whom
he claims. 4 W. W. & A. B., L., 13.



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Adverse Possession. See Mudgway v.
Davy and Buick^ 1, ante ; Sbarpe v. Hadl^, 3,
ante ; Featherstone v. Hanlonf 4, ante ; Oallash
et Uxor T. SchutZf 22, poet ; Coleman v. Ririay
4C, post; Pullen v. Thompson^ 74, post; St.
George t. Burnett, 175, ^o*^ ; ca? ^arte Broivn,
ISS, post ; Buchnall t. Segmanson, 188, j7o«^.



Qallash et uxor v. Schutz — i^a^ Property
Act, 1861, wc. 134.] — Through a mistake made by
a licensed surreyor in a plan, a portion of the
defendant's land was, on the bringing of the land
under the Beal Property Act, included in a cer-
tificate of title issued to t)ie plaintiff, the defen-
dant beine; then in actual occupation of the land :
— Held, on action for trespass by plaintiff, that
the defendant haying been in actual occupation,
and rightfully entitled when the land was brought
under the Act, the plaintifl 's certificate was void
as against the defendant by yirtue of section 134
of the Real Property Act of 1861. S. A. B., vol.
16, p. 129.

2^. Affida vit of~No Caveat— Jn re
Kennedy — Motion Standing Over — No Need
of Fresh Affidavit.']— Whonit on a motion for
administration, an affidavit has been -filed of no
caveat being then entered, and the motion stands
over for the filing of other affidavits — when the
motion is renewed on the other affidavits, no
later affidavit of no caveat need be filed. 1 W.
& W., I. B., & M., 16.

Agent. See National Bank v. National Mort-
gage and Agency Co., No. 12, ante.

Agent bl parte. See ex parte Rowan, No.
14, ante.

g-A. Agreement — ITiin^er v. Player— Real
Property Act, 1861 — Tenant in possession — Tres-
passer — Payment of Rent.] — A tenant in posses-
sion, under an agreement with a person who
subsequently obtains a clean certificate of the
land in respect of which such agreement is made,
becomes a trespasser as against such person until
a f reeh tenancy is created by possession and pay-
ment of rent. S. A. B., vol. 9, p. 100.



Agreement for Lease — Tranter v.

1/ord — Real Property Act, 1861 — Ejectment —
Tenancy from Tear to Year.] — In ejectment by
the registered proprietor of land under the Beal
Property Act, the defendant set up that he had
entered into possession by virtue of a verbal
agreement for a lease for ten years from the
former registered proprietor, and that by virtue
of such agreement he became tenant from year to
year, and was entitled to six months' notice, ex-
piring at the time of year when his tenancy
egan : — Held, following Manning v. Grossman,
that the defendant showed no estate or interest m
the land valid against the unencumbered certifi-
cate of the registered proprietor. S. A. B., vol.
8, p. 81.






. Agreement for Lease Protected—

Re Thompson v. Chipps — Land Transfer Act,
1885, S€cs..\4ti, 14S— Caveat to Protect Interest
under Agreement for Lease — Diligence — Summons
— Specific Relief .]- -Where a person claims the
right to specific performance of any contract in-
volving an interest in land under the provisions
of the Land Transfer Act, and enters a caveat to
protect that interest, he must, with reasonable
diligence, go on to assert the right claimed, or the
Court will order the caveat to be removed. A
claim by a caveator to have a lease executed in
accordance with an agreement made with a former
registered proprietor; will not he decided on
summons imder section 144 of the Land Transfer
Act, 1885. The proper remedy is an action for
specific reUef . IT. Z. L. B., Supreme Court, 1887,
part 2, p. 52.



Agreement for Sale.
wolt. No. im,post.



See Lange y. Bud-



gT. Agreement to Lease by Mortgag or
— Thompson and Chipps v. Finlay — Specifics Per*
formance — Land Transfer System — Sale by mort'
gagee subject to agreement.] — Where a vaUd con-
tract to grant a lease for a term of years has been
created subsequently to a mortgage and without
the mortgagee's consent, but the mortcfagee in
exercise of his power of sale expressly sell subject
to such contract, it is a moral fraud on the pur-
chaser to repudiate the contract, and the Land
Transfer Act vnll not protect him. Facts and
circumstances which imdcr the old system tend to
show the creation of a new tenancy between the
tenant and the mortgagee, unoer the Land
Transfer system tend to show a recognition of an
existing tenancy under the mortgagor. N. Z. L.
B., 1887, p- 203.



Agreement to Pay Principal—
Burne v. Stewart — Mortgage — First and Second
Mortgagees — Payment of Interest — JEstoppel
— Land Transfer Act — Power of Sale — Right
of Mortgagee to call in principal on default of
payment of interest.] — A. and B. were first and
second mortgagees of a property. The mortgagor
haying become insolvent and made default in
payment of interest, B. paid the interest, saying
m a series of letters that he was making arrange-
ments to take a transfer of the mortgage, that he
would pay the interest, and requesting A. to
insert in the receipt for the interest that he would
execute a transfer of the mortgage when required,
which undertaking A. gave. After paying interest
for three years, B. refused to pay any more or to
take over A.'s mortgage : — Held (1) That no
agreement to pay the principal money on A.'8
mortgage could be implied against B. ; (2) That
B. was not estopped from denying his liability to
pay A.

Semble: That where a mortgage under the
Land Transfer Act contains a clause declaring
that the power of sale contained in the Aot shall



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be exercisable immediatelj after default in paj-
meni of principal or interest money and default is
made in payment of interest before tire principal
becomes due, the mortgagee is not entitled to
insist on the payment of the principal money as a
condition of his abstinence irom the eiercise of
his power of sale, but is bound at any time before
sale to accept his interest in arrear with expenses.
N. Z. L. B., Sup. a., No. 3247.



|(A.) Harvey ▼. /rt/;/*?.]— In a mortgage
under the Transfer of Land Statute, upon default
in payment of interest, although the time for
payment of the principal has not arrived, the
mortgagee can only be stayed from selling by
payment or tender of the whole amount principal
and interest. W. W. & A.B. Rep. vol. 5, p. 125.

Agreement for the Sale of Land-



Lange ▼. Rudwolt — In Appeal — Real Property
Act of 1861^— Executory Contract.^ — An instru-
ment purporting to transfer or affect land under
the Real Property Act 1861, but not in the form
prescribed by such Act, and incapable of registra-
tion under it conveys no estate or interest in the
land at law, or in equity, and cannot be specifically
enforced. It may confer a right to damages for
its non-performance. On the death of a registered
proprietor of land under the Real Property Act
1861, the Lands Titles Commissioners have the
sole and final decision as to the persons to whom
the land is transmitted. A the registered pro-
prietor of the fee-simple of a section of land
entered into an agreement for the sale of portion
of the same to B, upon certain terms as to pay-
ment specified in the said agreement. These
terms were duly complied with, but in the mean-
time, A had died, devising all his real and
personal estate in trust for his wife and
children : — Held, that the agreement not being
in the form prescribed by the Act, and therefore
incapable of registration conferred no estate on
the purchaser, and that specific performance
could not be enforced.

Semble: — That no executory contract for the
sale of land under the above Act is valid.
Qusere : Whether the Supreme Court has any
jurisdiction in cases of transmission by reason of
the death of the registered proprietor of Isnd
under the provisions of the Real Property Act of
1861, and whether the absolute and final decisions
in all such cases is not vested in the Registrar-
General and the Lands Titles Commissioners.
S. A. B., vol. 7, p. 1.

OO. Agreement to Transfer Land—



Eagles v. Blain — Oood Titled — An agreement to
give a good transfer of land implies an agreement
to give a good title. A. S. R., 153.

3X. Alteration In Mortgage after Exe -
cution— jtfarArer V. Weld— Principal and Agent
— Solicitor — Agent for both parties — Land Trans-
fer Act — Mortgage^ Registration,'] — Where, in a



mortgage transaction, one solicitor act« for moK*
gagee and mortgagor, and the mort^fagee pap the
money to him, the acceptance by the mort|ragin- rf
part of the money from the solicitor is eTidenceof
a ratification by the mortgagor of the authoritj of
the solicitor to receive the whole monej from the
mortgagee, and the mortgagor cannot repudiate
the solicitor's authority to receive the moo«y.
The endorsement, after execution, upon a
memorandum of mortgage of land under the
Land Transfer Act of a note stating that tke
document is subject to a prior mortga^, has ae
material effect upon the instnunent or the
registration, and does not vitiate either. 5". Z.
L. R., Sup. Ct., No. 3, p, 104.



3g. Applicant made Plaintiff— Jg^ Seldm
— Settling Issues — Motion to settle Zj^ae*.]—
An applicant to bring certain land at Lane Cove
under the Real Property Act, claimed under s
Crown Grant dated July 1819, and allefred Ibat
he had been in possession for more than 20 yean.
The caveator claimed part of the land, for whitk
the applicaut asked for a certificate of title under
a Crown Grant dated 1840. He denied that the
land claimed by him was included in the gnat
ma le to the applicant in 1819, and he denied the



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