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applicant's possession.

Percuriam : — This matter-is of no importance ;
this is not like an action for ejectment. The
applicant will be plaintiff, and the caveator
defendant : — Order accordingly, the issues having
been agreed to by the parties. N.9. W. " We^y
Notes," vol. 1, 77.



Applicant Proprietor .

Han Ion f Ifo. 4, ante.



See FeatAerstome v.



33. Applicant's Title — ^g Dotut — Se^
Property Act, (26 Vict., No, 9), sees. 21, 23 —
Further Amendment Act, 41 Vict, No. 18, See.
4 — Issues — Onus of proof— AppUcanV* TVIfe
Challenged — Caveator's THU by Possession—
Caveators in possession made defendants.]— 1
caveator may ^ut in issue any document in the
applicant's claim of title.

Quaere : — Whether, when the caveator is io
possession, the Further Amendment Act, sec 4*
throws the onus of proof on the applicant.
Caveators in possession made defendants — (1) 28
Vict., No. 9, sec. 23 :— " After the expiration <rf
three months . . every such caveat shall be
deemed to have lapsed unless the (caveator) . .
shall within that time have taken proceedings in
any court of competent jurisdiction to estabKsli
his title." 2 Ol. Stat. 1948. (2) 41, Tict, Ka
18, sec. 4: — "Where any caveat shall . . have
been lodged . . it shall not be necessary for
such caveator to take proceedings . . but the
applicant may state a case for the opinion and
direction of the Supreme Court upon the matter.
And the Court may in its discretion direct the
caveator to lodge a case on his own behalf, stating



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whether he claims in liis own right or under
another person, together with such other par-
ticulars (if anj) as the Court shall think fit to
order ; and the Court shall thereupon direct an
issue or issues to be tried by a jury as to any
fact or facts ; or should no fact be in contest,
may decide the matter upon the case stated, and
for the purposes aforesaid may make all such
orders as the Court shall think fit ; and the
decision of the Court finally upon the matter shall
be conclusiTe on the parties, and on the Registrar-
G-eneral and Commissioners ; and the costs of
every proceeding out of this section shall be borne
by the party finally unsuccessful." 2 01., Stat.
1990, N S. W. L. R., vol. 2, p. 299.



Ba CyBrien—Real Pro^perty Act, (26,
Vict.^ No. 9), St. 21, 23 — Further Amendment
Act, (41, Vict.t No. ISy*.^) — Itsues — Applicant* s
Title — Dedication to Public — Appurtenant to
Caveator's Land — Statute of Limitations —
Witness de bene esse,'] — The applicant sought to
register a semi-circular segment of land lying
between the circular road of W. crescent and the
main road. The caveators were owners of allot-
ments on the other side of the circular road.
The following issues were ordered : — (1) Whether
the applicant's title was good from a certain date.
(2) Whether the segment had been dedicated to
the pubUc. (3) "V^ether the portions of the
segment opposite the allotments were re-
spectively appurtenant thereto. (4) Whether
the applicant's title had been destroyed by the
Statute of Limitations. Applicant made plaintiff.
Qufisre : — ^Whether an order from the full
Court is necessary for the examination of a
witness de bene esse in an B. P. issue. N. S. W. L.B.
vol. 2, 301.

3S. Application — .JZg jr b. Slack— In re
the caveat of J. B, Slack and the application of
W, H, Winder, and the Transfer of Land
Statute—The Transfer oj Land Statute {No,
801), sec, 116 — Service at place named in careat.']
— A rule nisi to remove a caveat is not properly
served upon the caveator by leaving it at the
address named in the caveat at the time when no
person is present at such address to receive it.
If the affidavit of service disclose such mode of
service, instead of stating, in the usual form, that
the service was effected, it is unnecessary for the
caveator, in moving to rescind such rule, to make
a counter-affidavit that the rule nisi never reached
him or came to his knowledge : — Held, also,
(Barry, J., dissenting) that an admission by the
caveator that the rule nisi did reach him two days
before it was made absolute, would not cure the
defective affidavit of service, or prevent the Court
from rescinding the rule. V. L. R., vol. 1, 319.

38. Be Nelson Bros,, Reretaunga Block —
Application to bring land under the Act — Title —
Butif of Registrar— Caveat,']^1he District Land
Hegistrar will be supported by the Court in sus-



pending the issue of a certificate until a disputed
portion of title can be tried, notwithstanding that
no caveat has been lodged, if the result of the
action might be to endanger the assurance fund.

37. Warner and others v. Dove — Injunction
— Application — Certificate — Possessortf Title —
Illegitimacy.'} — This was a bill filed by Henry
Joseph Warner, William Henry Whitboum,
Mary Cantwell and Samuel Cantwell, against
Samuel Dove, to obtain an injunction to prevent
the defendant from proceeding with an applica-
tion for a certificate of title to a piece of land in
Wellington-street, Hobart. The defendant, Dove,
had purchased the right, title, and interest of one
Charles Cantwell in the land in question under a
Sheriff's sale, and sets up a possessory title as
having been vested in Charles Cantwell at the
time of the Sherifi''s sale by virtue of upwards of
twenty years possession by him as owner. It
appeared, however, from the evidence of Charles
Cantwell that he had not occupied as owner, but
as tenant to his mother, the plaintiff*, Mary C/ant-
well, at the rental of ten shillbgs per week, and
that he bad for more than twenty years prior to
the Sheriff's sale paid this rent. Mary Cantwell
also confirmed this statement as to the whole
period of the alleged tenancy, and a daughter,
Mrs. Warner, also gave evidence as to the pay-
ment of rent by Charles to his mother for the
land now claimed by Dove. It further appeared
that Charles Cantwell, who for many years
believed himself to be the eldest son and heir-at-
law of John Cantwell (the prior owner of the
land claimed), was in fact illegitimate, and that
the true heir was the plaintifB, Samuel Cantwell.
Samuel was ignorant of his rights until the year
1883, but on discovering them he took no steps to
disturb the tenancy created between Mary and
Charles Cantwell — and it is not necessary for our
decision of this case vo discuss how far he could
have been bound by any such arrangements. The
introduction of the names of Henry Joseph
Warner and William Henry Wilkinson as plain-
tiffs in this smt, in which they have no scintilla
of interest, originated in mistake, and so far as
they are applicants for relief, the bill must be
dismissed with costs, if the defendant has been
put to any additional expense by reason of their
having been improperly joined as plaintiffs. As
far as Mary Cantwell and Samuel Cantwell are
concerned, it is clear that the posseesory title of
the one and the claim of heirship of the other
would be both frustrated if an indefeasible title
were to be issued to Samuel Dove in respect to
the land claimed, and as the defendant has not
established any right to such a title, we shall be
best conserving the rights of all parties by grant-
ing an injunction to restrain the defendant. Dove,
from proceeding further with hb application for
a certificate. We are not enabled in this form of
procedure to make such a decree as would settle
the rights of the various claimants, but as the
plaintiffs, Mary and Samuel Cantwell, have suc-



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oeeded in establishing their rights to the edict
claim, yiz., an injunction, the costs of those plain-
tiffs must be borne by the defendant, Samuel
DoTe. His Honor, Sir Henry Wrenfordsley, con-
curred. See also ex parte Mahoney^ No. 73,
post.

Note. — Co-ypilod and courteously supplied by
James Whyte, Esq., Recorder of Titles, Tasmania,
for purposes of this publication, and in the absence
of regular reports.

33 Application— Erroneous Descrip-
tion Xn—Wiggins^ app. v. Mammill, resp. —
Transfer of Land Statute (No. 301), sec. 163—
Fraud.'] — A mis-description in an application to
bring land under the Transfer of Land Statute,
as that the land was unoccupied, will not, under
section 153, invalidate a certificate of title ; there
must be fraud with a guilty intention.

Semble : That such a matter could not be
decided collaterally, and the certificate could not
be treated as void, in a civil suit; the person
charged with such fraud should first be convicted
by a jury, and then proceedings might be taken
to cancel the certificate of title. Y. L. B., vol. 4,
L.63.

33. Application, ex parte — Jg David Le
Compie — Land Trasfar Act^ 1870, sec. 89 — Caveat
— Practice.] — An order under section 89 of the
Land Transfer Act, 1870, to prevent the lapsing
of a caveat cannot be made ex parte. N. Z. L.
R., Sup. Ct., vol. 4, p. 340.



Se the Seal Property Act, 1861, and
the application of the Sight Rev. Dr. O, Quinn —
Public Road—Dedication^2h Vict., No. 14.]—
The owner of oertain land having subdivided it for
the purpose of selling it in allotments, deposited
with the Registrar-General a map showing the
subdivision and streets as required by section 119
of the Real Property Act, 1861. The map
showed a street running through the street called
Gotha-street. Subsequently to the deposit of the
map, the land having been assessed for rating
purposes in one block, the owner procured the
assessment in the subdivisions shown on the
map, and from that time he paid no assessment
upon Gotha-street. The land soon after its sub-
division was advertised for sale by auction, and
described as having been subdivided into twenty
allotments, Gotha-street intersecting them. To
the majority of the allotments there would have
been no access but through Gotha-street : — Held,
that there was sufficient evidence of the dedica-
tion of Gtrtha-street as a public road or highway.
Q. L. R., 1879, p. 7. See also No. 37, ante.



Application. Refusal of — In re

Knapman^Land Transfer Act, 1870, sec. 115,
sec. 21, sub'Sec. 3 — Limitation — Estate for Life
— Mule in Sheilas Case — Conveyancing Ordi-
nance, 1842, sec. 36—" Heirs and assigns " — Con-
struction.'] — By an anti-nuptial settlement, land



was conveyed to trustees upon trust for the
separate use of the wife during her life, then to
the use of the husband and his assigns during his
life, and after his death to the use of the children,
in default of issue to the use of the heirs and
assigns of the survivor. The wife having died
without issue of the marriage, the husband applied
to the Land Transfer Office for a certificate of
title as proprietor in fee-simple. The application
was refused on the ground that the applicant had
an estate for life only : — Held) that the words
" and assigns ** following the word " heirs " in the
ultimate limitation, conferred no power of
appointment ; and that the applicant^ estate in
the land was a life estate. N. Z. J., 1878, vol.
3, 111.



Application, Registrar's Duty as to

— Ex parte Hamilton.] — An application to have
lands brought under the operation of the Real
Property Act of 1862 must be entertained by the
Registrar-General, although it appears by the
terms of the application that the lands in questicm
are, as a matter of fact, occupied by some person
who does not claim in any way to be there under
the applicant. N. S. W. S. C. R., voL 3, 311.



Application to bring land under the Act*
See ex parte Rowan, No. 14^ ante,

^3. Application to Register — Mx
parte Locke — Native Orant^'s Act^ 1873, sec. 4
"^Construction — Joint Tenancy and Tenancy in
Common — Land Transfer Act, 1870, sec. 93.]—
By memorandum of lease, under the provisions of
the Land Transfer Act, 1870, dated 13th Septem-
ber, 1873, a block of land was devised by the
grantees, thirty-one aboriginal Natives, to B. and
another, for a term of twenty-one vears. The
lease was executed by twenty-six or the lessors
prior to the Ist of January, 1874, the date of the
coming into operation of the Native Grantees
Act, 1873, and by the remaining five lessors sub-
sequently to that date. The 4th section of the
Natife Grantees Act, 1873, provides (1) that the
grantees in any Crown grant issued to more
Natives than one shall be deemed to be tenants
in common and not joint tenants. A proviso
enacts that this provision shall not apply to cases
in which the grantees, or their survivors, have
alienated their land by lease or otherwise, before
the Act came into operation, or to cases in which
any of the joint tenants had died before the
passing of the Act : — Held, that the effe<^ of the
proviso was that the twenty-six grantees who bad
executed the lease prior to the coming into opera-
tion of the Act, remained joint tenants for all
purposes as in the Crown grant: — Hold, also,
that any application to deal with an undivided
share under the Land Transfer Act must define
the extent of the interest proposed to be dealt
with. " (1) — In any Crown grant to mow
Natives than one, such grantees shall be hnd be
deemed to have been from the date of the grant



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or the ante-yetting date therein (if any), which-
ever is earliest, tenants in common and not joint
tenants; bat the estate or interest of each of
sereral of such grantees shall not be deemed to
be equal, or of an equal value, unless it has been
so stated in their grant. Prorided always that
this proyision shall not apply to cases in which
the grantees, or the surnTorsof them, shall before
the oominx into operation of this Act have alien-
ated by sale, lease or mortgage, or otherwise, the
land comprised in their grant, or to such part of
their land as they may have so alienated ; nor
shall this provision apply in any case where any
of the joint tenants have died before the passing
of the Act." N. Z. J., vol. 4, 15.

Application for Inspection of



Documents— /feAtfr v. iStuart — Transfer of
Land Statute, 1866, {No. 301), sec. 27.— An
application under sec, 27 of Act No, 301 for In-
spection of documents ought to he made ex parte —
Costs,'] — This was an application granted for
inspection of certain deeds and documents lodged
with defendant's application to bring land under
the Act, and which were retained by the Registrar
when certificate issued. The certificate not giving
boundaries, the affidavit of plaintiff stated that
inspection is necessary for the action. A. L. T.,
vol. 7, page 45.



B (A) Application, Scope of. —JSx parte
Bumell and ano^Aer.]— Every application to bring
land under the provisions of the Real Property
Act must be confined to one block, or to a con-
tiguous (tract ?) of land. N. S. W. C. R., vol.
3,148.

^S- Application. Vendor, and Pu r-
ohaser ^Ex-parte Ctissold and another — To
bring the Title under Act — Contract should
he Stamped as a Conveyance — 26 Viet. (No. 9),
44 Vict. {No. 3), ».*., 2, 8.]— The apphcante
purchased land under a written agreement with
the vendor that the title should be brouglit under
the Real Property Act, and that the certificate of
title should issue to the applicants. The title
was approved by the examiners, and a certificate
drawn out, but the Registrar-General refused to
register it until a stamp duty bad been paid as
for a conveyance of real property. Held :~Tliat
the Registrar- General was not bound to register
the title unless the duty was paid. The agree-
ment for sale was the instrument by which a
complete transfer in equity of the land pur-
chased was effected, and, being a conveyance
within the meaning of Section 2 of the Stamp
Duties Act, ought to have been stamped as such.
N.S.W.L.R.,voL5, 176.

Appointment to Caveator's Land. See
re CyjBrten, No. 34, ante.



Assertion of Title. — Coleman and
CUsrkf. Riria Fuwhanga — Kjectment — Adverse
Possession — Land Transfer Act — Forged Con-



veyance — Notice.'] — An assertion by a person
occupying land, in answer to a claimant, that she
is occupying under another, is not an assertion
that she is only a visitor, but that she is occupying
in common with others, and she is therefore
properly included in an action for ejectment.
An alleged taking possession of land by claimants
without ousting a tenant who holds it from the
owner is merely a trespass, and not an adverse
possession sufficient to invalidate a certificate of
title under the Land Transfer Act. Where a
signature to a deed of conveyance is, unknown to
the purchaser, a forgery, and the land conveyed
thereby is brought under the Land Transfer Act,
the purchaser's title to the land is unimpeachable.
N. Z. L. R., Sup. Ct. Vol. 4, 230.



■AT. Assignees Equitable Title to Re-
strain — Kickham y. the (^ueen — Transfer of
Land Statute, (No, 301), sec. l06Sheriff*s
Sale — Registration of Transfer — Forfeiture of
Lease ^Tenders of Rent before Re-entry — For-
feiture.] — ^The Crown in this Colony stands in the
same relation to its tenant as an ordinary landlord
to his tenant. An assignee, by purchase at a
Sherifi^s sale of a leasehold estate from the Crown,
whose transfer has not been registered, has
sufficient interest to come into a Court of Equity
to protect the land from forfeiture. If sucli an
assignee tender the rent due before a re-entry is
made for default in payment of rent, that is
sufficient to prevent forfeiture.

Semble : — It may be otherwise where the re-
entry has actually taken place. The provisions of
the Transfer of Laud Statute referring to regis-
tration have merely the efiect that until the
transfer to the assignee is registered, the original
lessee may act so as to defeat the title of the
assignee. Y. L. R., vol. 8, 3, p 1.



Assignment— Condition Against —

Ex-parte Ellison — In re The Transfer of Land
Statute— Land Act, 1869, {No. 360), sec. 20,
sub'Sec. 5.] — A condition inserted in a Crown
lease under the Land Act 1869, (No. 360), sec.
20, sub-sec. 5: That no assignment or transfer
should have any validity whatever, until sanc-
tioned by the Qovemor-in-Council, does not apply
to an involuntary assignment, as by a sale under*
a writ of fi. fa. V. L. R., vol. 6, (L. 69.) See
also Bond ex-parte Bond, No. 89, post.



. Assurance Fund. Actions. Llml^
tatlons— 3foy/e v. Oibbs—Act No. 301, sees. 66,
149 — Act 353. sec. 9 — Limitation of Action
Against.] — In an action by a widow to recover
damages out of the Transfer of Land Statute
Assurance Fund lor loss of dower when the cause
of action accrued within 15 years. Held : — That
under sec. 9 of No. 353, she was entitled to the
dumages, and that sec. 66 of Act No. 301 did not
apply to this case where the husband was seized
in fee of Crown land alienated in 1851, but in



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respect of which he had never become the
registered proprietor. 9, V. L. E., (L. 1), 26 ; 4,
A. L. T., 148.

SO- Attornment — Jellicoe v. Wellington
Loan Company — Land Transfer Act, 1885 —
Memorandum of Mortgage — Tenancy — Estoppel
— Distress on goods of third person.'] — A. clause
in a memoraudum of mortgage under the Land
Transfer Act, 1885, wherebj the mortgagor attorns
tenant to the mortgagee creates no tenancy except
by estoppel, and, therefore, as third persons
are not bound by the estoppel, their goods on the
premises are not liable for distress for rent due to
the mortgagee.

Semble : — Such an attornment clause creates a
tenancy by estoppel as between the mortgagor and
mortgagee. N. Z. L R., Sup. Ct., toI 4, p. 330.

SI. Bailiff. Special — House v. O' I arr ell-
Certificate of Title — Sale of Leaseholds — Notice
of Sale.'] — In an action for trespass, for breaking
and entering the leasehold close of the plaintiffs at
St. Arnaud the title of the plaintiffs was based
on (1) a certificate of title, under the Transfer
of Lands Statute, that they were lessees of the
Crown for thirty years; and (2) a sale by a
special bailiff, appointed by a Judge of the
Supreme Court, on the application of a judgment
creditor of the prior lessee : — Held (1) that
the plaintiffs could not recorer on the certificate of
title alone ; (2) that the special bailiff was well
appointed, St. Arnaud being more than 100 miles
from Melbourne, although less than that from a
circuit town ; and (3) that the month's notice of
sale required by 19 Vict., No. 19, section 176,
(Consolidated Statutes, toI. 3, p. 678), does not
apply to the sale of a term of years. 6, W.W.
& A'B., p. 98.



Banker's L.\&n ~-Bank of Victoria t.

Rawlings — Voluntary Settlement of under the
Transfer of Land Statute — Partnership business
carried on by Surviving Partner — Bill by Creditor
seeking to make representative of deceased partner
liable for debts incurred by surviving partner —
Multifariousness — Costs.] — This was a suit by
a bank to have an infant child of a deceased
^ partner declared a trustee for the partnership of
certain land comprised in a certificate of title
issued in the infant's name, and for the enforce-
ment of a banker's lien over the certificate
deposited with the bank, and for satibfaction of a
judgment debt. Three brothers — William, John
Adams, and Samuel — were partners, and pur-
chased for the partnership some land at Stratford.
The grant was in the name of John Adams.
William (lied in- 1867, but the business was still
carried on by his brothers. In 1870, land was
purchased in Baimsdale for the purposes of joint
business, and the purchase money was paid by
John Adams from the partnership funds. The
land was transferred in 1874 to the infant child
ot John Adams, and a certificate issued ia the



name of the infant, John Samuel Bawlingt.
Both grant and certificate were deposited by
John Adams with the National Bank to secure an
overdraft allowed to the partnership. John
Adams died in 1875, and Samuel still carried on
the business under the same style (" Bawlings
Brothers"). Margaret, the widow of John
Adams, took out administration in December,
1875. Samuel assisted her in the administration
statement, and treated the Stratford land as a
partnership asset, but not the Baimsdale land.
In consideration of Margaret's forbearing to call
in the moneys due to her as administratrix,
Samuel supplied her with funds for household
and other purposes as required. Samuel trans-
ferred the banking account to the plaintiff bank,
which paid upwards of £400, being the debt
owing to the National Bank, and also — ^buf with-
out the knowledge of the administratrix — de-
posited the grant and certificate as security. In
1878, the plaintiff recovered judgment against
Samuel for £1658, and Samuel executed a deed,
reciting that both the pieces of land were part-
nership assets, and assigning Samuel's shu« in
the same and in all other assets of the partner-
ship with John Adams. The administratrix, when
questioned by the plaintiff, had denied that she
was a partner with Samuel, and refused to join in
a mortgage of the partnership assets. The bill
prayed a declaration that the infant was a trustee
of the Baimsdale land, for the partnership and
the persons beneficially entitled to the assets
therein ; that the plaintiff was entitled to a
banker's lien on the certificate for the moneys
owing on the judgment ; and also prayed for an
account of what is due, that the defendants,
Samuel and Margaret, might be ordered to pay,
or in default that the land comprised in the cer-
tificate might be sold ; and for a declaration that
the plaintiff was entitled to a moiety of the other
lands and assets of the partnership ; that an
account might if necessary be taken of the part-
nership dealings ; and that the administxatrix
might admit assets, or otherwise that the est^
of John Adams might be administered. Mr.
Uolroyd, Q. C, and Mr. A'Beckett for the plain-
tiff ; Mr. Lawes for Margaret Bawlings ; Mr.
Wrixon for John Samuel Bawlings. Samuel
Bawlings left the suit undefended. As to the
land being partnership assets, and the quasi lien
of partners, counsel for plaintiff referred to Bank
of England case, 3 D. F. and J. G46 ; Lindley,
3rd ed., 700 ; (as to resulting trust for partn»-
ship, &c.) ; Dyer v. J>yer, 1 W. and 1., L. C.
Eq., 5th ed., 223 ; Ray v. Steel, 2 V. and B., 388;
Willis V. Willis, 2 Atk., 72 ; Sidmouth t. 5.. 2



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