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Beav.; 447 ; Lindley, pp. 681, 711 j Ifaherskon
V. Blurton, 1 Deg. and Sm., 121. His Hodw
remarked that there was no colour for the greater
part of the relief sought, as the administratrix
was not shown to be a partner of Samuel ; that
there was no evidence to show how William'i
share in the Stratford land passed to his brothers :
that there was no room for further enquiry as to



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the Baimsdale land being partnership property,
and proceeded as follows : — ^Take these properties
to hare been partnership properties, Samuel
would, as surriving, have had a right to half the
partnership assets, but not specificallj to these.
If he got his share of the partnership assets
otherwise, the representatives of John Adams
would hare been entitled to these properties, and
Samuel could not have given to his creditors or
assignees more than his own rights. The bill
does not at all meet this view. It says nothing
of the value of the partnership property at John
Adams' death, or of what Samuel got of it. It
is consistent with his having got more than his
ehare. Viewing the conveyance of the tannery
land to John Samuel in another light as a con-
veyance procured by a father to an infant son, it
would, I apprehend, be at first sight an advance-
ment. But that would be voluntary, and, in case
of land not under the Act 301, might be defeated
by the donor conveying to a purchaser for value.
The bill is not pointed to this, and John Adams
keeping the conveyance and depositing it with
the National Bank would, I think, give it security
as against his son. But that would apply only
to the debt due to the National Bank at his death,
as to the amount of which the bill sajs nothing.
Samuel could not increase that debt. As regards
John Samuel's rights, the transfer to the plaintiflf
was not, I thmk, a transfer of the rights of the
National Bank to it. Samuel paid one debt by
contracting another, he gave a document which
one had held to another creditor, conferring, I
think, only his own rights. But the conveyance
of March, 1874, was of land under Act 301, which
(sections 47 to 50) gives the proprietor, by certi-
ficate in some respects, conclusive title. This is
to be regarded as evidence of the intention of the
parties in the subjects I have dealt with, and also
as to the liability of such conveyances being sub-
ject to trusts for persons paying purchase money,
and also as to the power of a father, by manual
delivery of a document conclusive as to his son's
title, defeating that title, supposing he could
defeat it, as without consideration (see Colechin
V. Wade, 3 V. L. K.., Eq., 266). I am not decid-
ing these points, and it way not be necessary to
decide some of them. But the plaintiff claims
rights under the deed, December 2, 1878. It
split an entire debt of Samuel's as to £1000 of
that debt in one aspect, and as to the entire debt
in another. It claims a lien on the certificate as
to the balance owed being a bad debt by Samuel.
It devoted £658 Is. 8d. of it to purchasing a
moiety of Samuel's rights in the partnership
assets. He was entitled to an adjustment with
John Adams' representatives, had not sought for
it, but sold his rights to the plaintiff, which first
seeks it by this bill — I think, a legal proceeding,
but entitled to little favour. The two defendants
are not each interested in the entire matter; yet
their interests are so far blended that I do not
think the objection as to multifariousness appli-
cable. The bill seeks under this deed much more



than I think the plaintifP entitled to. *' Befer to
the master to take an account of the dealings of
the partnership between John Adams Eawlings
in bill named, and the defendant, Samuel
Bawlings, up to the decease of the said John
Adams Bawlings, as far as is necessary to ascer-
tain the rights of the said Samuel Bawlings as
against the ropresentatives of the said John
Adams Bawlings. Direct the said master to en-
quire and report whether the land comprised in
the certificate of title of March 6th, 1874, was or
was not partnership property at the time of the
decease of the said John Adams Bawlings, but to
report the above rights in the alternative of the
said land being and not being partnership pro-
perty. Direct the master to report as to the
assets of the said partnership now outstanding,
and debts, if any, remaining unpaid, and as to
the debts thereof, paid by the said Samuel
Bawlings since the death of the said John Adams
Bawlings. Direct the said master to continue the
said accounts as between the said Samuel Bawlings
and the defendant, Margaret Bawlings, as ad-
ministratrix of the said John Adams Bawling^, to
the date of his report, giving the said Samuel
Bawlings credit for all sums paid to the said
Margaret Bawlings, or expended for the main-
tenance, clothing, and support of her and the
infant defendant, John Samuel Bawlings, and
direct the said master to take the said account in
the same alternative as to the said land being or not
being partnei-ship property ; in case of it being
partnership property, charging the said Samuel
Bawlings for the occupation of the land comprised
in the said certificate as a receipt of partnership
property j in the case of it not being partnership
property, charging the said Samuel Bawlings for
the occupation thereof as of so much property of
the representatives of John Adams Bawlings, and
generally to enquire and report the rights and
liabilities of the said Samuel as to assets of the
said partnership at the dat« of the said deed of
December 2nd* 1878, the bill mentioned. Befer
it also to the said master to enquire and report the
state of the banking account of the said partner-
ship at the decease of the said John Adams
Bawlings with the National Bank of Australasia
and since, the state of the banking account of the
said Samuel Bawlings with the said Bank and the
plaintiff*, from time to time, especially at the date
of said decease, and of the transfer of the sai i
account. Declare that the directing of the said
account is without prejudice to the right of all
parties, and saving all accounts as between the
said defendants. Order the plaintiff*, the Bank of
Victoria, to pay to the said defendants, Margaret
Bawlings and John Samuel, respectively, their
costs of this suit, up to and including this decree
when taxed and ascertained. Befer to master to
tax said costs. Beserve further directions and
future costs. Liberty to apply." In tliese
directions, I perhaps should more distinguish the
rights of the defendants, Margaret and John
Samuel, between themselves; and should dis-



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tinguish the occupation of the dwelliDg-house
from the rest of the tannery land. If any party
wishes amendment in this respect, I should be
glad to hear him on Friday. On Friday, July 2,
no amendment haying been suggested, His Honor
directed that the decree should stand in the above
form as of that date. A. L. T., 1880, p. 9.

g3. Beneficial Interest. Want of— Jn re

Beattie — Charging Ordtr — Cancellation under
Mule 814 — Land Tiansfer Act — Regiitration,'] —
A charging order only affects property in which
the defendant is beneficially interested and
registration gives no priority over an unregistered
transfer to a purchaser in good faith made before
the issuing of the order. N. Z. L. B., 1887, p.
342.

B4. Bona fide Purchasers — Bailey t.
Chrixp and others — Real Property Act of 1861,
26 Vict., (No. 14), *.*. 123 and 126— Transfer by
Forged Instrument — Bona fide Purchaser toithout
notice — Registration — Order 39, Rule 2 —
Pra<?/iVc.]— Under the Eeal Property Act of 1861,
a purchaser from a proprietor registered on a
forged transfer for valuable consideration without
notice or registration obtains the legal estate.
Cooper V. Vesey, (20 Ch. D. 611.) Commented on
Q. L. E., 1884, p. 42.

SS Bona Fides — .gg-parftf John Finlay—
The Land Tax Act 1877, (Ao. 575), wc*. 4, 35—
Landed Estate subject to a Mortgage — Transfer
by father to his children — Valuable Con-
sideration — Transfer of Land Statute, {No,
301) sec. 63.] — A father of a family, with a view
to providing for his children, bought for them a
Btation, consisting ol freehold Land under the
Transfer of Land Statute, comprising a " landed
estate *' within the meaning of the Land Tax Act,
1877, and stock thereon ; the land being subject
to a mortgage under the Transfer of Land
Statute. He requested the vendor to transfer
direct to the children, but as some of them were
minors he refused to ilo so, and the father took
the transfer to himself, and gave his promissory
notes for the payment of the purchase money,
extending over a period of ten years, except a
small amount which he paid in cash. He also
gave a second mortgage over the land to secure
the payment of the promissory notes. Forthwith
he transferred the lands, except a small portion
which he retained for himself, to his children, in
such portions as that each was under the taxable
amount, and the children were registered as the
absolute proprietors in fee of those portions.
Thereupon the Jlegistrar placed the father's name
on the Land Tax Register as owner of the whole
of the lands. The stock was not transferred to
the children, but ran over all the lands. There
was an understanding between the father and his
children that a fund was to be raised out of the
produce of the station and stock to meet the bills
given by the father, the intention being that the



station should pay for itself in the ten jean. The
Registrar, though requested to do »o, refosed k»
remove the father's name from the Lai^ In
Register in respect of such transfer. Upon order
nisi to remove his name in respect of all the laadi
except the portion he had retained for himself:—
Held, that the liability under the Tnnsfer
of Land Statute, (No. 301), sec. 63, of the
transferees to pay the mortgage debt did not fofs
a valuable consideration for the l3«Dafert to i^
children ; and that such a dealing by a father d
a family in favour of his children was sot •
transfer bona fide for valuable ooDsideniioe
within the meaning of sec 4 of The Jjmnd Tu
Act, 1877, (No. 575). Price, v. Jenkins, (5 Ql
D, 619), distinguished V. L. R., vol. 10, p. ^

SO. Breach of Duty — georgg t. AusfnBm
Mutual Provident Society — Land Transfer Aei^
Specific Performance — Breach of T'rust —
Fraud — Mistake of Law.'] — Where trustees deal
vrith the trust property in a manner not autfaorned
by the trust deed, and afterwards a certificate d
title under the Land Transfer Act, 1870, was im-
properly issued in favour of one of the tra^«ef
under the erroneous impression that he was aso^
trustee, but it appeared that the mistake was boos
fide, and had not resulted in any loss to the trait
estate: — Held, that the certificate holder eodd
make a valid contract of sale which would be en-
forced against a purchaser. It is a gross irregu-
larity for a certificate of title to be issued to
trustees who have no power of sale. A re-
versionary interest in a converted realty ms
vested in trustees upon certain trusts. No pover
was given to invest in land. On the reversioQaiy
interest falling into possession, the trustees wiih
the consent of the tenant for IHe took land instead
of money. The parties to the deed of settlemeot
afterwards purported to revoke the settlemait
and declare new trusts, being erroneously advised
that they had power to do so. One trustee retind,
and the other brought the land under the pro-
visions of the Land Transfer Act, 1870, in he
own name. Afterwards the plaintifi^ who was
husband of the tenant for hfe, was appointed a
trustee, and the land was transferred to him alooe
by the other trustee, who supposed he had redwi
The husband lodged a deed in the Land Registij
office, by which he declared that he held the Und
upon the trusts of the first settlement as modified
by the second. The plaintiff contracted for the
sale of the land to the defendant. The defendant
received notice of all the above transactions, asd
refused to complete : — Held, tliat the def^dsat
would not be guilty of fraud in completing, asd
need not see to the application of the purchs«f
money, and consequently would obtain an ir
defeasible title. N. Z. L. R., Sup. Ct., voL i
p. 165.

ST. Breach of Trust — St. George r. Bv-
nett and aihother — Trustees — Tortious Sale^
Infants— Real Property Act, 1861.]— A testator



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deyisedand bequeathed the whole of his real
and personal estate to trustees upon trust (after
payment of debts, &€.), to pay orer the annual
income, rents, and profits to his wife ** to and for
the maintenance of herself and the support and
education of his children so long as she should
remain his widow during the remaining period of
lier natural life." The testator died on the 14th
October, 1863, leaying his widow and four infant
children. After the death of the testator the
trustees sold for £635, and made application
under the 79th section of the Real Property Act,
1861, to be registered as proprietors of certain
land forming portion of the estate, and the
certificate of title was issued in the name of the
purchaser, £335 of the purchase money being
paid in cash, and the balance secured on mortgage.
Subsequently, and shortly before suit instituted
on behalf of the infant children, the trustees re-
purchased the property for £200, and obtained a
transfer to themselves of and executed a declara-
tion that they held same subject to the trusts of
the will. On bill filed on behalf of the infant
children. Decreed — 1. That the children were
entitled to elect either to take the land or the
proceeds of sale, and that the latter being more
to their advantage the trustees must pay over to
them the amount of such proceeds. 2. That the
land before the sale having been under a system
which recognized and protected the equitable
interests of the infants had not by re-purchase
under the Real Property Act, which ignores
equities, been reinstated to its former position. 3.
That the trustees must pay the infants costs of
the suit as between attorney and client. S. A. R.,
Tol. 10, page 47. See also National Bank v.
National Mortgage Company ^ 12, ant€ ; Chomley
V. Firehrace^ 21, ante j Franklin v. Ind, \^Q,pott.

Bringing Land under the Act . See ex-
pctrte Rowan, No, 14, ante.

Cancellation. S ee Wiggins (app.) Hammill,
(resp.^ No, 38, ante.



I. Biggs and others v. Waterhouse and
others— -Real Property Act, 1%Q\— Certificate
obtained by Fraud — Cancellation — Caveat —
Regristrar- General — Parties.'] — A bill of com-
plaint, filed for the purpose of setting aside a
certificate of title obtained by fraud, set out that
a caveat had been lodged, forbidding the registra-
tion of any transfer of or other dealing with the
land comprised in such certificate, the time for
expiration of which caveat had been extended by
Judge^B order "until 14th August, 1878." That
at noon on the 14th August, 1878, an interim
order had been obtained, restraining all dealing
with such land. That at 1 o'clock on the same
date the Registrar- G-eneral had registered a
transfer of the said land. That a further caveat
had been lodged, which the Registrar-General
threatened and intended to disregard : — Held,
that the oaTeat expired on the first moment of



the 14th August, and that the Registrar- General
had duly exercised his duty in registering the
transfer as above mentioned. That no facts were
stated to support the alleged threat of the
Registrar-General to disregard the caveat, and
that be was not properly mtide a party to the suit.
S. A. R., vol. 12, p. 75.

, SO- Cancellation. Certificate — Be the



Petition of WiUiam Biggs — Meal Property Act,
1861, sec, 1^7— Petition — Jurisdiction.}— Tho
Court has no jurisdiction under section 137 of the
Real Property Act, 1861, to cancel a certificate
of title on the petition of a person claiming to be
entitled to such land until the title of such
claimant has been established by proceedings at
law. S. A. R., vol. 11, p. 43.

BO (A) Caveat — J^j? parte Martin Lyons—
Act No. 140, sec. 80 — A caveat lodged under the
80th sec. of the Real Property Act claiming a
lien on land for a sum specified, and forbidding
the registration of any instrument afiecting the
land until after notice to the caveator, will not be
extended to include a claim to the land absolutely
alleged by affidavit ; and the person applying to
be registered as proprietor may, on summons to
the caveator, obtain an order from a Judge in
Chambers for withdrawal of his caveat, upon pay-
ment to him of the sum therein specified. In re
the Real Property Act, 1, W. W. & A. B., p.
119.



(B) In re Power — Caveat — Judge at Cham-
bers— 2Q Vict. 301, sec, 24.] - A Judge in Cham-
bers has no jurisdiction upon summons, to make an
order, under the Act No. 301, sec. 24, restraining
the Registrar from bringing land under the Act.
To obtain such an order, the caveator must either
bring an action or file a bill. 6 W. W. & A'B.,
L. 81.



(C) Be the Transfer of Land Statute ex
parte Peck — Transfer of Land Statute 1866,
(No, 301), sec. Ill-Judicature Act, 1883, {No,
761), sees, 10, 19— Bules of Supreme Court, 1884,
order 43, sec. 2 ] — A Judge in Chambers haa
power to hear applications to delay dealings with
land under the Transfer of Land Statute, 1866,
A. L. T., vol. 6, p. 162.



_ (D) In the matter of the Bsal Property
Act, and of F. C, and A, Davis — Real Property
Act — Mortgagee,'] — Under the 14th section of
the Real Property Act, 1861, a mortgagee of
land under the old system having exercised his
power of sale may apply to bring the land under
I he Act in the name of the purchaser. S. A. R.,
vol. 1, p. 67.

60 (E) In the matter of the application of J.
Schmid, and of the Caveat of WiUiam Field — Beat
PropeHy Acts, 1861, lS7S—Interest^Bights-of
way.] — On caveat being lodged and petition filed



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bj the cayeator, under tlie prorisions of the Beal
Property Act, AmeDcbnent Act, 1878, against the
bringing of land under the proTisions of the Real
Property Act, 1861, the Court has power by Tirtue
of section 48 of the former Act to order the
Begistrar-G-eneral to enter on the certificate of
title to be issued pursuant to such application,
right-of-way over such land to which the caveator
is entitled as appurtenant to other land belonging
to him.

Qusre : Whether the person entitled to a right-
of-way appurtenant has any careating faculty.
8. A. B., vol. 15, p 48.

50 (F) Ex parte Peck.'\ — ^A Judge in Chambers
has power to hear applications to delay dealings
with land under the Transfer of Land Statute,
1866. A. L. T., vol. 6, p. 162.



(G) In re Clark and Harvey — Real Pro-
perty Act, 1861 — Lease with Right of Purchase —
Summons referred to Court — Practice — Costs."] —
A lessee with right of purchase is not entitled
before time for payment of purchase money has
arrived to caveat against his landlord dealing with
his property. "When a summons is referred by a
Judge to the full Court, the Court must deal
with the matter on the basis of the state of facts
at the time when the summons was so referred,
and can take cognizance of nothing which has
been done after that period. The Court has no
power under the Real Property Act 1861 to give
the applicant his costs of a motion to remove a
caveat. S. A. R., vol. 2, p. 91. See also
re Thompson v. Chipps, 26 ante ; re J. B. Slack,
35 ante; re Nelson Bros., 36 ante; re Damd
Le Compte, 39 ante; Jellicoe v. Wellington
Loan Co., 68 ante ; re Hay ton ex parte Dibbs,
67 post ; D'Albrdyhill v. D'Albrdyhill 82 post ;
re Wm. Wadham, 114 post ; Kissling v. Mitchel-
son, 123 post; Ifeill v. Adams, 130 post;
Wildash v. Hutchinson, 132 post; Butler v.
Saddle Hill Mining Co., 163 post; Friebe v.
Cullen and another, 178 post ; ^x parte Brown,
185 post ; re A. Bosquet, 202 post ; Ex parte
Dams and Inman, 208 post ; re Pennington, 212
post,

OO. Caveat, Effect of — Ex parte Macin-
tosh — In re Barnes,'] — M. claiming to be entitled
to certain land, but not being in actual occupa-
tion thereof, applied to bring it under the
provisions of the Real Property Act, 26 Vict., No.
9. B. thereupon lodged in the Registrar- General's
office a caveat, under the 21st section of the Act,
in respect of a certain portion of the land, which
he alleged had been in his own quiet and peace-
able possession for the last twenty-five years, and
also commenced an action in the Supreme Court,
as directed by section 24, but took no further
proceedings therein up to the time of this appli-
cation—a period of ten months; nor was the
summons ever served on M. The Court, under
seotion 82 (Hargravo, J., dissentiente), made



absolute a rule for the removal of the caveit,
unless the caveator proceeded with his aetkai
within a reasonable time : — Held (Hargrave, J^
dissentiente), that the 82nd section applies to aU
caveats under the Act ; and that the wocds
'^such caveaf at the commencement of the
section is to be read as if ** any caveat : — ^Heid
(per Hargrave, J.), that the proper conise for
M. to pursue was to bring ejectment against B.,
or apply d^ novo for a certificate of title to the
land, leaving out the portion in B.'s poesesnon.

Semble (per Fawcett, J.) : As the summons ff
issued and not served within six months would be
no longer in force (C. L. P. Act, sec 10), Hba
caveat would lapse as if no action had heea con-
menoed. Section 81 (which is the first unds
Part YI., containing general prorisions) of
the Act, 26 Vict., No. 9, provides that "any
settlor of land under the provisions of tfaii
Act transferring such land, to be held by ths
transferee as trustee, or any beneficiary or oth^
persons claiming estate or interest in toch lani
under any unregistered instrument, or hy derola-
tion in law or otherwise, may, by caveat in t^
form M. of schedule hereto, forbid the regbtn-
tion of any instrument affecting such land^ estnto
or interest, absolutely, or until after notioe, &c.
Section 82 provides that **\jpon the receipt oC
such caveat, the Registrar General shall notiiy
the same to the person against whose appUeatua
to bring land under the provisions of this Act, or
to be registered as proprietor, or, as the case mar
be, to the registered proprietor, against whose
title to deal with the land under the proviwais
of this Act such caveet has been lodged ; and
such applicant, proprietor, or registered jwo-
prietor, may, if he think fit, summon the caveator,
or the person on whose behalf such caveat has
been lodged, to attend before the Supreme Gooit
or a Judge thereof, to show cause why sueb
caveat should not be removed, &c. And, except in
the case of a caveat by a settlor, or by or gb
behalf of a beneficiary claiming under any wiH
or settlement, or by the Registrar Q^neral for the
protection of incapable persons, &c., every sncfe
caveat lodged against a register^ proprietiff
shall, unless an order to the contrary be made by
the Supreme Court or a Judge thereof, be deemed
to have lapsed after the expiration of fomteeB
days after notice given to the caveator, ^c.** H. S.
W. S. C. R., vol. 10, 146.

Ol. Caveat, Filing of — Re Carroll^Opers-
tion of— Caveat.] — Although by the rules d
Court a caveat against application for letters of
administration should be filed within a certain
time, yet, if at an^ time before the order is made,
a caveat is filed, it has operation. In the goods
of Carroll, 1 W. W. & A»B., I. E. & M., 66.

Caveat, Lapse of— Summers «



parte Ay twin — Transfer of Land Statute (N*.
301), sees. 23, 24rSubsequent Order to Restrain
Registrar.] — After the lapse of a caveat, for-



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bidding the bringing of land under the Transfer of
Land Statute, the Court or a Judge has no power
to make an order under section 24, restraining the
Registrar from bringing the land under the Act.
V. L. R., Tol. 4, L. 116.

33. Caveat by Mortgagor — Davies t.
Herbert— The Stamp Duties Act, 1879 (No. 646),
see. 61 — Promissory Note — Mortgage containing
Covenant to Pay — Act Imposing Duties — Con-
struction— Transfer of Land Statute {No, 301),
sec, 116.] — A mortgage of land containing a cove-



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