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

. (page 74 of 83)
Online LibraryAustraliaThe land transfer laws of Australasia: being the full text with side notes ... → online text (page 74 of 83)
Font size
QR-code for this ebook

nant for the payment of money, but bearing no
stamp under section 61 of the Stamp Puties Act,
1879 (No. 646) : — Held, a valid mortgage on the
grounds, per Molesworth and Higinbotham, J. J.,
that a mortgage, as a charge on land, is distinct
from the covenant to pay which it contains, which,
per Higinbotham, J. (Molesworth, J., dubitante),
is unavailable unless stamped as a promissory
note ; and, per Williams and Holroyd, J. J., that
the covenant to pav is not distinct from the
mortgage containing it, and is not a *' promissory
note " withm the section. A dictum to the con-
rary of Lindley, L. J., in British India S. N. Co.
V. Commissioners of Inland Revenue (7 Q. B. D.,
165), dissented from per Holroyd, J. Per
Williams, J. an Act imposing duties is to receive
a strict, and not a lii>erai interpretation, so far as
the imposition of duty is concerned, and, per
Higinbothwn, J., care should be taken that the
public revenue shall not suffer loss by the un-
certain construction, or the lax application, of a
revenue law. Under section 116 of the Transfer
of Land Statute (No. 301), an owner of land, sub-
ject to a mortgage, is a person entitled to lodge a
caveat against a dealing by the registered mort-
gagee. V. L. R., vol. 11, p. 886.

Caveat, Operation of. See re Carroll^ No,
61, ante.

Caveat, Removal of — Ex parte Pen-
nington and others — JReal Property Act, sec. 31 —
Noting Incumbrances on Certificate,'] — The
trustees appointed under the Underwood Estates
Act having applied to the Registrar-General to
bring certain lands comprised in those Acts under
the provisions of the Real Property Act, the
Registrar-Gkneral refused to issue a certificate of
title unless certain incumbrances created by the
devisees, under the will of James Underwood,
were noted on the certificate, and imless two
caveats lodged against the application were re-
moved : — Held, that the trustees took the estate
freed and discharged from all the trusts or deriva-
tive interests arising under the will, and that
such interests should not be noted as incum-
brances on the certificate : — Held, also, that where
a caveator has issued a writ, and judgment of
non pros, has been signed, the caveat is at an
end: — Held, also that where a writ has been
issued and renewed, but there has been no sentce
on the applicant, and the renewal has been in

each case without any prssoipe, and no further
proceedings have been taken, the caveat must be
removed by an application under the 82nd section
of the Real Property Act. V. L. R., vol. 13, p.

In the matter of Charles Williamson.'] —
A Judge in Chambers has no jurisdiction to en-
tertain a summons by a person seeking to bring
property under the Real Property Art, calling
upon a caveator to show cause why his caveat for- .
bidding the bringing of such property under the
Act, should not be removed. Section 81 of the
Act (No. 140) authorises such a summons only in
the case of caveats against dealing with property
already under the Act. W. W. & A. B. Rep.,
vol. 2, L., p. 110.

Re the Caveat of Turner—Transfer of
Land Statute, 1866 (No. 301) sec. 17— Costs,]—
A judge has no power under section 117 of Act
No. 801 to grant the costs of and occasioned by
the removii of a caveat. A. L. T., voL 7,
p. 76.

OT. Se Mayton ex parte Dibbs — Certificate
of Title— Caveat— Real Property Act, 26 Vic,,
No. 9, sees, 83, 81, 120— Motion to set aside the
order of Mr, Justice Windeyer, ordering the
removal from the file of Miss Sayton^s Caveat,]
—John Campbell and Ann ti. 'Campbell, the
owners of land at North Shore, bounded by high-
water mark, leased a portion to the caveator for a
period of twenty-one years, with a right of
renewal for a further period of twenty-one years.
They sold to Mr. T. A. Dibbs, and in 1866 T.
A. Dibbs obtained a grant from the Crown of the
foreshore. In 1876 he obtained a certificate of
title to the whole of the land which he had pur-
chased from the Campbells. In 1879 T. A.
Dibbs conveyed the land leased to the caveator,
and the foreshore, in front of her land, to his son,
Mr T. B. Dibbs, who took out a certificate of title
for the foreshore and the land leased. In 1882
the caveator gave notice that she required a
renewal of her lease, including the foreshore, and
tendered a lease in those terms. T. B. Dibbs,
however, executed a lease of the land contained
in the original lease to the caveator, and refused
to include the foreshore in the lease. Miss
Hayton thereupon entered a caveat under section
81 of the Real Property Act to prevent T. B.
Dibbs dealing with the foreshore without notice
to her. The renewal of the lease to Miss Hayton
was registered and noted on T. B. Dibbs' certifi-
cate of title. The Court dismissed the application.
Section 83 gave the holder of a certificate an
absolute title. The filing of the caveat under
section 81 was not the right course to take ; and
the caveator not proceeding under section 126,
the order of His Honor was rightly made. Rule
discharged with oosU. N. S. W. *< Weekly Notes,"
ToL 1, p. 17.

Digitized by VjOOQIC




In re David Jonet-PretUm* s Caveat —
Real Froperty Act — Order that Caveat he JRe-
moved from the file set ande — 'Negligence of
Attorneg,'] — Application of Dayid Jones to bring
land under the Keal Propertj Act. The present
motion was to set aside an order of the full Court,
made on March 5th last, whereby the oareator
was ordered to remore his careat on the around
that he had not filed his case within iSie time
prescribed by the Court. The t^reator, although
out of time, knew nothing about the delay, which
he ascribed to the negligence of the attorney who
was then acting for him. The Court (sir J.
Martin, C. J., Fawcett, J., and Windeyer, J.)
then made a rule setting aside the order of March
5th, and giving the caveator leave to file his case
within ten days. Costs of this application to
abide the result of the enquiry into the title.
N. S. W. " Weekly Notes," vol. 2, 84.

Caveat, Stamp Commissioner—

questions of title, and not to enquire whether
or not stamp duty has been paid or probate taken
out. I can't imagine why the Commissioner for
Stamps should expect the officials in the Lands
Titles Office to make this enquiry. Judgment
for defendant. N. S. W. '* Weekly Notes," voL

In re WalUs — Real Property Act, sec, 81 —
Caveat cannot be lodged hy Commissioner for
Stamps."] — C. B. Stephen appeared in support of
a summons calling upon W. Hemming, the Com-
missioner of Stamp Duties, to show cause why the
caveat lodged by the said W. Hemming, as such
Commissioner of Stamp Duties, on February 6th,
against the application of the said William Marcus
Wallis and Nathaniel Wallis, to be registered
under the Real Property Act as proprietors by
transmission should not be withdrawn, and why
the said W, Hemming should not pay the costs
of (andP) incidental to this application. On
January 18 the trustees of the will of the late
William Wallis applied to be registered under
the Beal Property Act as proprietors by trans-
mission of certain land, portion of the estate
of the said William Wallis, deceased. On Feb-
ruary 6th, a caveat was lodged by the Com-
missioner of Stamps claiming stamp duty under
44 Yict. No. 8. Before obtaining probate, the
said executors caused a valuation of the testator's
properties to be made by Messrs. Richardson and
Wrench, for the purpose of the necessary affidavit
under the Stamp Duties Act, according to which
the property included in the transmission, appli-
cation and caveat was valued at £5862. This
included certain land at Port Hackine, valued at
£360. The stamp duty was accordingly paid,
and probate issued on January 14. AfUr making
the stamp affidavit, the land was sold for £405,
being £46 in excess of the valuation, and con-
sequently, for the purpose of the transmission
application, the lands were declared to be of the
value of £6900. It was presumed (hat the caveat
had been lodged on the ground that the higher
value ought to have appeared in the stamp
affidavit. The difference of duty amounted to
less than eight shillings. The object of section
81 of the ^Bal Property Act is to enable any
person claiming any title to the land to make
that claim. The duty of the officials in
the Lands Titles Offices is to enquire into

TO. Caveat to Protect Leasehold—
In re Thompson and Chipps, ex parte Fmdlay —
Zand Transfer Act, 1885, sees, 144, 146—
Diligence — Summons — Specific Relief J\ — ^Where
a person claims the right to specific performanoe
of any contract involving 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 be
decided on summons under sec 144 of the Land
Transfer Act, 1885. The proper remedy is an
action for specific relief. N. Z. L. R., 18W,
p. 52.

TX. Caveatlng Capaolty ^Jit re oaveai of
H, C, Palmer— Real Property Act of 1861—
Judgment Creditor.] — A creditor on a judgment
of the Supreme Court has no caveating oapaci^
under the Real Property Act, 1861. S. A. E.,
vol. 5, p. 80.

Ta. Caveator, Decision In favour of—

Saddington v. Hackett — Real Property Amend-
ment Act, (41, Vict., No. 18)— Direction to
Registrar- General — Practice.'] — Where the jury,
on an issue directed under the Act 41, Tict., No.
18, found in favour of the caveator that the land
in question was a public recreation groimd, the
Court declared the land so dedicated, and ordered
that the Registrar-Q«neral should make such
entries in his books and on any certificate that
should be issued, and should take such other steps
as should give effect to the judgment of the Court.
N. S. W. L. R. vol. 1, page 155.

T3. Sx parte Mahoney— During vacation^ an
order under sec. 2^ of the Transfer of Land
Statute may he obtained in Chambers, restrain'
ing the registration of an application as pro-
prietor, although the remedy by a hill in equity
is open to the caveator — Supreme Court Con-
stitution Act (15 Vict,, No. 10, sec. 19).]—
Campbell had applied to bring certain land
under the Transfer of Land Statute. A caveat
was lodged by Mahoney, which would have lapeed
on the 19th March. The caveator was in posses-
sion, and, therefore, could not bring ejectment or
trespass with a view to establishing his title under
sec. 24. As the Court was not sitting in banco,
the caveator insisted that he was entitled to pit>-
ceed under "the emergency dause" (16, Vict,
No. 10, sec 19), which provides that eyery Judge

Digitized by VjOOQIC




ot the Court Bh«ll hare power in Taoation, if
under the special circumstances of the case he
shall see fit, to make all such orders as can only
under ordinary circumstances be made by the
Court The caveator claimed to have the title
at law, and asked for an order under sec 24
restraining the Begistrar from bringing the land
under the Act. Mr. A. Beckett appeared for the
caveator ; Mr. Topp for the applicant. Mr. Topp
referred to in re Power, 6, W. W., and A*B (L),
81, where it was held that a Judge in Chambers
had no jurisdiction to make the order asked for ;
and contended that as a bill could be filed by the
cayeator for an injunction, the special procedure
authorised by sec. 24 was inapplicable (ex parte
Ounn, 3, V. L. B. L., 36). The Chief Justice
said that the caveator had his choice of several
remedies, and could proceed in such a case by
rules nisi atad absolute if the Court were sitting
in banco, and, therefore, under the emergency
clauses in vacation by summons. The order was
made as asked. A. L. T., 1883, p. 132.

T3 (A) Caveator, Equity of — Rattray —
Real Property Act Further Amendment Act of
1877, 41, Vict. (No. 18, *. 4.]— Court will direct
an issue to a jury as to a trust or other equitable
question raised by caveators. Caveators on whom
onus of proof lies and who are out of possession
made plaintilEs. N. 8. W. L. B., vol. 2, p. 303.

Caveator Defendants .
33, ante.

See re Douitt No.

7'A. Certificate, Acquisition, Fraud—

dullen V. Thompson^ Transfer of Land Statute
(No. 801) S.S, 49, 50— Adverse Possession^
Tenant — Mortgagor and Mortgagee — Construc-
tive Notice.'] — The word "fraud" in sec, 49 and
50 of the Transfer of Land Statute, (No. 301),
does not include fraud of the conveying party in
acquiring title. Chotnley v. Firebrace, No. 21,

Semble : The protection afforded by sec. 49 of
the Transfer of Land Statute (No. 301), to a
tenant, does not extend to protect the title of the
landlord. A, a registered proprietor of Land
under the Transfer of Land Statute, borrowed
money from B, and was induced by him to sign a
docxuuent which he supposed to be a security,
but which was a transfer oy him to B of the land.
B had himself registered as the proprietor, and
mortgaged the premises to C. The premises were
throughout in the occupation of a weekly tenant
of A, who paid rent to him. Upon the discovery
of B's fraud, A filed his bill against B and C for
redemption : — Held, that but for the Transfer of
Land Statute, (No. 301), sec. 50, C would by the
tenancy, have been affected with constructive
notice of A's rights, but that, that section pro-
tected him, and that the mortgage to C was good
as against A ; and decree for redemption made
upon payment by A or B, and if by A, then B
ordered to repay him. Y. L. B. vol. 5, page 147.

7S. Brady v. Brady and others — Seal Pro*
perty Act, 1861 — Cerliflcate issued pursuant to
fraudulent application.] — M, the eldest son of
a deceased registered proprietor, fraudulently
applied in the name of his father to have certain
lands brought under the provisions of the Beal
Property Act, 1861, stating in his declaration in
support amongst other things Ihat he was not
aware of any mortgage other than set forth and
stated as follows : — '* That £ lent to me the sum
of £250 sterling on the security of the said piece
of land, and that I have agreed to execute and
register a mortgage foi the said sum to the said
K, or to whom he may desire." A certificate of
title was accordingly issued in the name of the
deceased proprietor, and on the date when the
same was issued, M executed in the name of the
deceased a memorandum of mortgage to Der
Deutsche Club to secure the sum of £250 and
interest, presumably the same sum expressed in
the application to have been advanced by K.
On Bill filed to set aside the certificate and mort-
gage : — Held, that the Lands Titles Commis-
sioners had no power under the circumstances to
issue the certificate of title in the name of a dead
man. That such certificate was therefore a nullity,
and that the mortgage being based on the certifi-
cate fell with it. That neitSier the heir-at-law of
the testator, the executors of his will, the
Begistrar- Q-eneral, nor the Lands Titles Com-
missioners were necessary parties to the above suit.
That the Court of Equity has concurrent if not
sole jurisdiction in cases of fraud arising out of
the Beal Property Act of 1861. S. A. B., vol.
8, p. 219.

Certificate. Adjustment of. (See Ad-

TO- Certificate -Solicitor's Lien for

Costs— Craig's Application — Tran*fer of Land
Statute (No. 301), sec. 28.]— A Judge in
Chambers will not order the production of
deeds where thev are held by a solicitor who
claims a lien on them for his costs. A. L. T. 54,
voL 5, p. 54.

TT. Certificate, Cancellation — Jga? parte
Rigby — Transfer of Land Statute (No. 301), sec,
132.]—. Where a certificate issued to an applicant
who stated that a caveator claiming title by ad-
verse possession was merely a trespasser, and the
sertificate-holder afterwards brought an action of
ejectment against such caveator, which was
successfully resisted on the ground of adverse
possession,' the Court ordered the certificate to be
delivered up to be cancelled as issued in error.
A. L. T., vol. 6, p. 128.

T8. Certificate, Entries on~-Jones v.

SelUck—Real Property Act, 1861— Ujectment—
Mortgagor— Mortgagee.]— Though a mortgagee
has no legal estate under the Beal Propert;^ Act,
1861, yet where on default a transfer to him has

Digitized by VjOOQIC




been endorsed on the mortgagor's oerfcificate, the
Court will accept such an entrj as conolosiye eri-
denoe of the mortgagee's title to possession, and
will permit him to maintain ejectment. S. A. R.,
Tol. 6, p. 13.

TO. Certif loate of Registrar-General—

Aubrey and anothsr y, Soott and another — RegU-
tration Act, No, 8, of IS^l— Memorial-— Detcrip-
tion of Witness."] — Under the Registration Act,
No. 8, of 1841, the memorial of every deed is re-
quired to contain certain particulars, amongst
others the description, &o., of the attesting
witness ; but where the certificate of the Registrar-
General of the correctness of any memorial has
been obtained, such certificate is conclusire evi-
dence of the validity of the registration, and will
not be affected by the circumstance that such
memorial did not in fact contain the description
of the attesting witness. A plea denying the
correctness of a memorial of registration of a
deed under the Registration Act 8 of 1841, must
allege that the Registrar-General had given no
certificate of the correctness of such memorial.
S. A. R., vol. 7, p. 76.

Certificate of Title . Bee Sharpev.Hadley,
8, ante ; Featherttone v. Hanlon^ 4, ante ; Fannan
V. Pannan^ 18, ante ; Chomley v. Firehrace, 21,
ante ; Murphy v. Michel, 21 A, ante ; House v.
0*Farrell, 61, 67, ante; Watson v. Watson,
93, post ; Sail v. Sail, 98, post ; Fitzgerald v.
Archer, 101, post ; Kirkham v. Carpenter, 111,
post ; Jones v. Jones, 184, post ; Stephens
V. Williams, 186, post; re John Eaton, 194,
post ; Robertson v. Keith, 195, post ; Formby
V. Adelaide Corporation, 199, post; Miller v.
Morrissey, 214, post; Murphy v. Michell, 216,

Certificate of Title. Effect on Tenant of.

Certif Icate of Title, Endorsement

Of— Ex parte Smart.'] — The Kegistrar-Q-eneral
having, under the Real Property Act, 26 Vic,
No. 9. issued a certificate of title with a clause
endorsed thereon, reserving or purporting to
reserve any lawful rights incident to the align-
ment of streets or roads abutting on the land, the
Court (Stephen, C. J., dissentiente) directed the
Registrar-G-eneral to cancel such certificate, and
to issue a new certificate in the same terms, but
without such a clause. N. S. W. S. C. R., vol. 6,

31. Certificate of Title, Rlght-of-Wav-
Jones V. Park — Act No, 610, sees, 2 and 4 — Evi-
dence to contradict Title to such easement refused."]
— Rule nisi to enter a verdict for the defendant.
The jury gave the plaintiff nominal damages for
trespass to a right-of-way, running from Spencer
street. West Melbourne. The plaintiff* relied on
a certificate of title, dated 16th July, 1878, showing
an allotment, vrith a right-of-way adjoining ten {

feet in vndth* The trespass complained of vsi
that the' defendant's fence encroached upon a
portion of this right-of-way. The defendant pro-
duced his certificate of title, which was graiit«l
anterior to that of the plaintiff. The qnestioa
was whether the defendant could go into evideooe
to show that his fence was in the right line, or to
show that the Registrar of Titles had lasoed s
wrong certificate to the plaintiff? The Act 5a
610, section 2. amending the Transfer of Lasd
Statute, provides that when any certificate of titi«
shall contain any statement to the efiTect that tiie
person named in the certificate of title is entitlAl
to any easement therein specified, such statemeotA
shall be received in all Courts of Law and £qmtj
as conclusive evidence that he is so entitled.
Section 4 provides that where anj certificate
contains the words *' together with the ri^cf
carriage way," Ac, specifying or describing tke
road over which the easement is created, sad
referring to a map endorsed wherein sueh road ii
coloured brown, such words shall hare the mms
effect as if the certificate contained the wordi of
the seventh schedule to the Transfer of Lasd
Statute. In this case the certificate only relerTed
to the right-of-way as marked in the map in the
margin, and it was contended for the defendaot
that there should be a description of the road orw
which the easement was created, and refemng to
the map endorsed. The Court held that the cer-
tificate of title produced by the plaintiff, showing
the easement, was final and conclusiTe under
section 2 of Act 610, and that the defendant could
not be allowed to give evidence to contradict it.
Rule discharged. A. L. T., 1879, p. 10.

Certificate Paramount.
V. Sanlon, No, 4, ante.

See Featierdmis

Cestulque, Trust Caveat — jyjjir-

dyhill V. D*Albrdyhillr-Land Tran*ferAei, 1870
— Unwritten Trust — Costs — Rents and Profits-
Registrar appointed Receiver.] — A wife, allefin||
that her husband has invested money of beca,
held upon trusts not committed to writing, upos
the purchase of land under the Lai»d Tntnifer
Act, and upon mortgage, has a right to enter s
caveat to protect her interests, and, pending the
trial of an action, the Court will appoint the
Registrar a receiver of the rents and profita. The
Court has power to award costs on an applicaticra
for removal of a caveat. N. Z. L. R., Sup. Ct^
vol. 3, 391.

(A) Charging Orcler —Ja re Mmtwal

Benefit Building Society ex parte Baynes — Land
Transfer Act — Transfer — Priority.] — A
charging order only binds land subject to the
equities subsbting at the time, and will, then-
fore, be removed to enable the registration of s
transfer which was executed prior to th»
making of the charging order. N. Z. L. R^ 1885",
p. 293. See also re Beaitie, 53, ante, msd
ex parte Finlay, 65, ante.

Digitized by VjOOQIC




Clatmj^ Notice of — Madditon y.

Jf • Carthy — Registered Proprietors compellable
to fulfil their Contrttct,'] — By a memorandum in
writinf<, G-. M. agreed to advance D. M. money to
select land under the Land Act, 1862, and D. M.
agreed to select land therewith, to repay G. M. at
the end of five years, with twenty per cent,
interest in the meantime, and to secure such pay-
ments by a legal mortgage of the land selected.
D. M. selected land, and paid for it with the
money advanced by Q-. M. for that purpose, but
subsequently having obtained the Crown grant,
and got himself registered as proprietor, under
the Real Property Act, refused to execute any
mortgage to G-. M., alleging that he had sold the
land to B. Upon bill by G-. M. against D. M.
and B. : — H^eld, that the Beal Property Act, while
it protected persons taking conveyances from
registered proprietors, did not protect registered
proprietors from being compelled in equity to
fulfil their contracts ; and it appearing that
B., before his purchase, had notice of the
plaintiff's claim, decree made for a mortgage
pursuant to the agreement. 2 W. W. & A'B.,
Equ., 151.

k. Claims to Grants for Land — In re

Hart and PegusJ] — Mr Justice Dobson delivered
the following judgment of the Court in this
matter between Frank Hart, applicant, and Elita
S. Pegus, caveator : —

Mr Hart, the applicant, lodged an application
in this Court in its claims for grants to land
jurisdiction for the issue of a grant to him of
31 perches of land, situate in George street,
Launceston, and Mrs Pegus entered a caveat against
its issue. The case came on to be heard before us,
when lengthy evidence was given on both sides,
and after hearing Counseljudgment was reserved.
Upon consideration we are not agreed that the
applicant has established his claim to have a
grant of the land, at the same time we are of
opinion that the evidence does not disclose any
equitable claim to a grant on the part of the
caveator. The applicant in this case, Mr Hart,
has entered a caveat against the application of
Mrs Pegus to the Lands Titles Commissioner for
a grant of tkis land to her, and it was to establish
this caveat that he took these proceedings, and in
them the position of the parties was reversed, he
becoming applicant, and she caveator. In con-

Online LibraryAustraliaThe land transfer laws of Australasia: being the full text with side notes ... → online text (page 74 of 83)