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sidering the case, what appears to us to be an
omission in the Legislation on this subject, has
forced itself on our attention, and we deem it
desirable to direct attention to the omission in
order that opportunity may be taken lor remedy-
ing it. The Real Property Act, 25 Vict., (No.
16), did not empower " The Lauds Titles Com-
missioners" to bring un gran ted lands of the
Crown under the operation of that Act. As to
all other lands (so tar as it is necessary to refer to
the Act) the Recorder was directed to pnblish
notice of all applications to bring them under ite



provisions, and any person opposing an applies
tion was empowered within a specked time to
enter a careat against it. The caveator was then
required within three months to take proceedings
in a^ Court of competent jurisdiction to establish
his interest in the land on which he based the
caveat, and in case he failed to take such pro-
ceedings, or did not establish his interest, the
caveat lapsed, and the applicant succeeded in his
claim. Subsequently, by 26 Vict. (No. 1), that
Act was amended by a power being given to the
Commissioners to entertain applications to bring
ungranted lands of the Crown under ite operation.
The applicant was required to satisfy the Com-
missioner that he was " in equity and good con-
science '* entitled to a grant, and thereupon the
Recorder was to publish notice of the application,
and unless a caveat was entered within a specified
time the grant is directed to be issued to the
applicant, and the land to be brought under the
Act. The Amending Act does not expressly say
how such a caveat is to be decided, and it has
been assumed that this Court can decide it. Now,
the only jurisdiction in which this Court can
directly entertain questiond relating to ungranted
lands of the Crown is in its ** Claims for grante
to land jurisdiction," but, even in that juris-
diction, this Court is not competent to decide the
questions arising under oaveate Xo applications
under the Real Property Acte relating to un-
granted lands. The court is invested with the
powers formerly exercised by the Caveat Board,
except that this Court's report in favour of the
issue of a grant is mandatory, whilst the Caveat
Board comd do no more in ite report than
recommend ite i^sue. The only original form of
procedure which can be enterteined by the
Court in this jurisdiction is an application for a
grant. If the caveator against ungranted lands
being brought under the Real Property Act, as
the fee-simple of the applicant has for instence a
mortgage on such lands, he has unanswerabU
ground for opposing the grant of them in fee to
the applicant. But he cannot come to this Court
and ask it to declare that he has a valid mortgage
which would render it contrary to equity and
good conscience for a grant in fee to issue to the
applicant. The caveator can only come to this
Court and become himself an applicant for a grant
of the land, for this is the only way, as already
steted, in which he can take proceedings before
us, and upon such an application he being merely a
mortgagee must fail. The Court may express an
opinion that he has a good mortgnge, but it is
extra judicial. As, however, the grant could be
set aside even after it was issued, in case the
applicant had been eruilty of misrepresentation
or concealement of material facte, so if any such
is discovered before it« issue we have no doubt
that the application may be rejected. The omis-
sion in the Legislation, which hss been pointed
out, is one open to the simple remedy of directing
the application lodged with the Commissioners,
and the caveat or counter claim against it to be
d



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decided by this Court in its " Claims for grants of
land jurisdiction."

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

_ Compan y. _ See National Bank t. National
Mortgage Company y No. 12, ante.

OP. Compensation — Jo«m» and another
T. Andrewt — Seal Property Act^ 1861 — Depriva-
tion of Land — Time toithin tchich action to
be brovyht.'] — The deprivation contemplated
by sec. 126 of the Real Property Act,
1861, occurs immediately on the bringing of
the land under the proyisions of the Act,
and a person deprived of land b^ the
same being so brought under the provisions of
the Act, must bring his action within six years
from the date of such bringing under, though he
may not have had notice or knowledge within
that period that the land has been so brought
under. S. A. B., vol. 12, p. 153.



Condition — Sanders v. JFadham^

Ejectment^Eeal Property Act, 1861~^«^.]—
A memorandum of lease under the Real Property
Act, 1861, provided that the lessee should hold
for a certain term "subject however to the
following covenants, conditions, and restrictioiia,
in addition to those implied by the Act" : — The
covenants, etc., set out where to pay rates, to re-
pair, and not to sub-let without consent. On
ejectment brought for under-letting ; — Held, (1)
that the stipulation as to sub-letting was a
covenant, and not a condition. (2) That eject-
ment would not lie under sec. 50 of the Beal
Property Act of 1861, it not being in the nature
of things a covenant, in respect of which delault
could be continued for six months.

Semble : That clause 124 of the Beal Property
Act of 1861, sec. 3, would not prevent ejectment
for a oommon law forfeiture of thie term.
S. A. B., vol. 4, p. 78.



Condition against Assignment-



Completion Purchase.

Madleyy No, 8, ante.



Compulsion to take Land.

Cooh^ No. 160, pott.



^See Sharpe v.



, See Aehley v.



Concealment of a Material Fact

— Chisholm V. Capper — Evidence to Impeach
Certificate.'] — In an action of ejectment the de-
fendant proposed to call the Commissioner of
Titles to show that the certificate had been
granted in ignorance of a material fact. That
notice of the application for a certificate had not
been served on tne owners of the adjoining pro-
perty. The Act, sec. 46, directed that the
certificate should be conclusive evidence of title,
unless in eases of fraud, and this concealment, it
was contended, was a fraud. The evidence was
rejected: — Held, that the Judge was right in
rejecting the evidence. If the certificate was to
be impeached in any way, it could not be in the
way proposed. The whole object in the Act was
to give ttie greatest confidence in these certificates,
and the Court could not allow the supposition to
be entertained that it had any doubt on the point.
N. C.60



Ex parte Bond — In re the Transfer of Land
Statute (No, 301), eee. 106— !ZVaiw/(Pr# under
several torits of fi, fa, — Ihniy of Registrar to
decide on validity — The Land Act, 1869, sees. 20,
llO^Lease^Beyulations-^ Ultra Ft>«f.] - The
judicial duty of examining into the validity of
instruments presented to t£e Begistrar of ^tles
for registration, is imposed upon him by the
Transfer of Land Statute. Under sec. 106 of the
Transfer of Land Statute, it is the duty of ths
Begistrar of Titles to register the first tTansfer
under a sale from the Sherifi', which is lodged
with him, if it be valid ; if it appear not to
comply with a condition in the instrument of
title, he must decide for himself whether such
condition is valid. Under the Land Act, 1869,
sec. 110, no power is given to make a regulation
for the insertion, in leases under sec., 20 of a
condition prohibiting assignment of the lease;
such condition, if inserted, is ineffectual. V. L, B-,
vol. 6, L., 468.



ST. Conclusiveness of Certificate of
Title - Jones v. Park— Transfer of Land Statute
(No. 301), sec, e4r—Act No. 610, sees. 2, 3—
Right-of-way,'] — ^Where a right-of-way is specified
in a certificate of title of the servient tenement,
the correctness of the certificate cannot be im-
pugned in an action of trespass.

Semble : If the parcels of the servient tene
ment have been erroneously described, the error
should be corrected by another certificate.
V. L. B.,vol.6, p. 167.



Ex parte Bond — Re Transfer of Land
Statute (No. 301), sec,106—DutyoflheRe^'strar
on application to register a transfer — Land Aet^
1869 (No. 360) — A condition against assignment
in a lease from the Crown is void.] — ^This was a
summons under section 135 of the Transfer of
Land Statute, calling on the Begistrar of Titles
to uphold his reasons for refusing to register a
transfer of certain land to Bond under a writ of
fi. fa. in a suit of Bond v. Godfrey, The state-
ment by the Begistrar was that a person named
Godfrey was the holder of a lease dated ISUi
December, 1879, from the Crown to him, his
executors, administrators, and approved assigns,
for seven years, which lease contained the follow-
ing clause : — " Provided further, and these presenti
are upon this express condition, that no assign-
ment or transfer — ^whether by operation of law or
otherwise — of these presents, or other instromenti
affecting the premises hereby demised, sliall have



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effect or yalidifcy whatsoeyer unless and until the
Ooremor, acting bj and with tlie advice of
SxecutiTe Council, sanction the same, and further,
xmtil the same be registered in the office of Crown
I^inds ; and all such instruments as aforesaid
shall have and take priority, not according to their
respective dat«s, but according to the priority of
the registration thereof." On the 22nd March,
1880, a copy of a fi. fa. against the lessee by the
Colonial Bank, accompanied by a statement setting
out the land sought to be effected, was served
upon the Registrar of Titles, and was by him
duly entered as required bj the Transfer of Land
Statute, (No. 301), sec. 106. On April 15, 1880, a
copy of a writ of fi. fa. against the lessee at
the suit of John Bond was served upon the
Registrar and entered. On the 6th of May a
transfer from the Sheriff, in pursuance of the
writ of fi. fa. at the suit of the bank, was lodged
with the Begistrar and registered. On the 10th
May a transfer from the Sheriff to Bond, in
pursuance of the writ at his suit, was lodged with
the Begistrar, who refused to register it, and gave
the following as his eroimds of refusal : — First,
that it is the duty of the Begistrar of Titles to
register instruments in the order in which they
are lodged with him for registration ; Secondly,
that the special clause in the lease referred to did
not affect the registration of an instrument under
the Transfer of Land Statute. In addition to
this statement an affidavit was filed on behalf of
Bond to the following effect : — Bond recovered
judgment against Godfrey in 1879 for £600. He
issued execution on November 10 of that year,
pending the issue of the lease to Godfrey. On
April 4, 1880, Bond obtained from the Gtovemor-
in-Council the necessary sanction to the registra-
tion of his fi. fa, and it was registered at the
Lands office, and thi& sanction was endorsed on
the copy of writ lodged by him with the Registrar
of Titles on April 16. On April 6 the Sheriff
sold under Bond's writ, and on the 27th April
Bond obtained the sanction of the Govemor-in
Council to register the transfer of the sale in
pursuance of the writ, and such consent was en-
dorsed on the transfer. The sale under the bank's
writ took place on the 13th April, but the sanc-
tion of the Govemor-in-Council to the transfer
was not obtained till May 25, after the sanction to
the transfer to Bond. Mr Holroyd appeared for
the Registrar of Titles in support of the reasons
for refusing to register ; Mr A'Beckett for Bond
The Court on a subsequent day delivered judg-
znent. It was the duty of the Registrar to decide
to the best of his power the law as regarded the
instruments presented to him for registration.
The intention of the Legislature was plain to take
the registration out of the Supreme Court, save in
certain exceptional cases. The Registrar was con-
stituted the authority, subject to an appeal
against his decision to determine the validity of
the instrument as well as the priority of registra-
tion in point of time— to determine the validity
of the instrument as it appeared on its face,



assisted by any document that nught be lodged
with it. If he decided erroneously, there
was an appeal to this Court, and idti-
mately to the highest appellate tribunal. As
to the condition in the lease it was void. The
Act placed every possible obstruction on the
licensee parting with the licence or the land. It
was equally dear that it was the intention of the
Legislature to grant to the lessee, after he became
lessee, facilities for alienation, which the Act en-
deavoured to withdraw from the licensee. When
the lessee emerged from his chrysalis condition of
licensee, he was empowered by the Act to assign
his lease. The proviso that an assignment by
operation of law should render the whole grant
void was repugnant to the grant, was in opposition
to the obvious intention of the Act, and was
therefore void. The regulations were to be sub-
servient to the Act, not opposed to it. The con-
clusion of the Registrar was sound, and the
sumjnons must be dismissed. A. L. T., 1881,
p. 94.

^Conduct of Defendant. See Ashley v.



Cook, No. 137, post.

Consent, Mortgagee. See Cfriffln v. Dunn,
No, 8, ante.



Consideration, Executed Contract. See
Coker V. iSpence, Ao. 8, ante,

^Ol. Consolidation, Mortgages — Oreiff v.
Watson — Land under Transfer of Land Statute
(No. 301) — Land not under -4c/.]— L., being
registered as proprietor of land imder No. 801,
mortgaged it to the defendant, and by several
mesne transfers the land became vested in the
plaintiff as registered proprietor subject to the
mortgage. The defendants held another mort-
gage from L. over land not under the Statute,
and claimed to consolidate the two mortgages : —
Held, that a mortgage of land under No. 301
cannot be consolidated with a mortgage of land
not under the Act. 7 V. L. R. Qn.), 79 ; 3 A.
L. T., 13.

Construction. See re Knapman, No. 41,
ante; ex varte Lock, No. 43, ante; Davis v.
Herbert, No. 63, ante.



Constructive Notice. See Fatten r,
Thompson, No. 74, ante,

Qg. Constructive Trusts — In re Terry
— Election — Statute of Limitations (3 and 4,
Will IV., c. 27, sees. 7 and 21)'-Eleotion bars
heir."] — J. T., the tenant in taU of Hoxton Park,
devised it to his second son, R. R. T. ; and de-
vised land at Yass, of which he was seized, in
fee, to his eldest son, and heir in tail, S. H. T.
J. T. died in 1842. R. R. T. came of age in
1869. S. H. T. came of age many years bcffore.
Each had been in possession of the land devised



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to him since his majoritj. B. B. T. haying
applied to be registered under the Beal Property
Act as owner in fee of Hoxton Park, the Begistrar
General refused a certificate on the grounds : (1)
That upon the election of S. H. T. to take under
the will, he became a trustee for B. B. T., of
Hoxton Park, to the extent of his individual
interest in such land, and that therefore the
possession of B. B. T. was not adverse to S. H. T.,
and the Statute of Limitations did not apply ;
(2) That the election of S. H. T. was not binding
on his heir in tail^~Held» that as 8. H. T.
was not a trustee under an express trust,
but only constructively and by operation of law,
the Statute applied. Also, that as the estate at
law of S. H. T. has ceased to exist, and passed to
B. B. T., his heir in tail, is, by section 21 of the
Statute of Limitations, also barred. Also, that
apart from the Statute of Limitations, where an
ancestor has made his election, the heir cannot
claim against the will. N. S. W. "Weekly
Notes," vol. 2, 83.

Contract, Enforcement of . See Sharpe
V. Badlet/, No. 3, ante.

OQ. Contract, 8ale6f Land — yra<jo» v.
Watson— Vendor and Purchaser — Certificate of
Title — Costs of bringing land under Transfer cf
Land Statute — Nudum Fadum.'] — When a
bargain for the sale of land is made, and the
deposit paid, without any representation that the
land is under the Transfer of Land Statute, or
any understanding on the part of the purchaser
that it is so, a subsequent agreement by the
vendor to pay the costs of bringing the land under
this Act is nudum pactum, though by mistake of
the vendor's agent the formal contract is drawn
up with conditions applying to land under this
Act. V. L. B., 12, p. 433.



b. Conveyance — jy^ZZ v. Lindsay and
others — Meal Property Aotf 1861 — District
Council Act, 1068— Order for Sale— Equity."]-^
On October 20th, 1858, a certificate of title, under
the provisions of the Beal Property Act, 1868,
was issued to L. in respect of allotment 9, which
allotment, with other property, was subsequently
mort|;aged, and continued subject to such mort-
gage until after the institution of the present
suit. On October 17, 1873, an order for sale of
the allotment was obtained by virtue of the pro-
visions of the 186th section of the District Councils
Act, 1858, and the land was accordingly sold,
and on the 20th April, 1874, conveyed by the
master to the plaintiff, N. In October, 1874, L.
wrote to B., his son-in-law, suggesting that he
should purchase the land for £10, which B.
accordingly did, without making any enquiries,
and the same was thereupon transferred by L. to
B. by a memo of transfer duly registered. On
bill filed by N., praying that the certificate of
title should be deliverMl up and cancelled: —
Held (1), ^hat the conveyance made pursuant to



the order for sale was valid and vested the fee-
simple of the land in N., and that by reason of
sucn sale and conveyance the allotment was out
of the provisions of the Beal Property Act, 1861;
(2) that N. was nevertheless entitled to have the
certificate of title delivered, up and cancelled on
the ground that the existence of the same and the
transactions of L. and N. in connection therewith
tended to throw a cloud or suspicion <m the
validity of his title to the property. S. A. B.,
vol. 18, p. 196.

_OS. Conveyance under Power of At-
torney — In re Woods — Transfer of Land
Statute — Uegistration — Instruments and Securi-
ties Statute.^—A conveyance of real estate, pur-
ported to be executed under a power of attorney,
previously registered : — Held, that in order to
show a good title, evidence muft be given that
the principal was alive at the date of the registra-
tion of the power. 6 W. W. & A'B., L., 233;
N.C.36.



Campbell v. Jarrett — Transfer of Land
Statute {No. 301), sec. 132^ Correction of Certi-
fcate of Title issued in error — Costs.'] — In this
case pla&tiff sought an order for correction of
certain certificates of title in conformity with
terms of her father's will, particulars of irhkk
are, as of the case generally, fully set out in
the judgment of Mr. Justice Holroyd, giv^i on the
matter. A. L. T. 3, p. 48. See alao Sharps v.
Hadley^ No. 3, ante.

Co8t8. See Sharpe v. Eddley, 3, ante;
Fisher v. Stewart, 44, ante ; JBank of Victoria v.
Sawlinys, 52, ante ; re Turner, 66, ante ; Camp-
bell V. Jarrett, 96 and 142; Hall v. Hall, 98,
post ; Kearton v. Richardson, 125, post;
Ashley v. Cook, 137, 160, post; Oreiy v.
Watson, 162, post ; Wilson v. King^ 166, post ;
Miller v. Stuart, 177, post ; Shackell v. Lindsay^
174, post,

V7. Costs against Solicito r — In ike

matter of the caveat of Feamley (No, 5983^ —
Summons in Chambers must show on whose hduslf
issued — Order — Extending the operaiion of a
caveat, headed " in the matter of the Transfer of
Land SteUute," show statutory jurisdiction, and
may be made without terms as to indemnity, <f>c. —
Not necessary thai order should show that under-
taking, S^c, is dispensed with — TVansfer of Land
Statute, sec. 117.] — Application to set aside an
order extending the operation of a caveat, tinder
section 117 of the Transfer of Land Statute. The
caveat was lodged by Feamley and others. The
Begistrar had sent notice to the caveators of an
application to him for registration of a tranalier of
the land from Smith and Bugg to Mackay. On
the 17th July, the caveators applied for and
obtained the following order from Mr. Justice
Molesworth*: — " In the matter of the Trans£er d
Land Statute, and of the applioaidon for regislr**



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tdon of SD instrament of transfer, Smith and
another to Mackay, and in the matter of the
careat lodged by Jane Feamlej and others (No.
5988). Upon reading the sereral affidavits of
Jane Fearnlej and Hugh Murray, and the notice
by the Registrar of Titles, dated the 5th day of
July inst., to Jane Feamley, Julia Annie Fowling,
Phcsbe Alice Feamley, and Betsy Jane Feamley;
and upon hearing the agent for the said parties,
I do order that the operation of the caveat, No.
5988, abovementioned, be extended, and I do
direct the Registrar of Titles to delay regbtering
an instrument of transfer from Spencer Smith
and William Bugg to Adam Bruce Mackay, of
Crown portion 85, parish of Tallangatta, County
of Heytesbury, or any dealing with the said land
for one calendar month, to enable the applicants,
or some of them» to have a bill prepared, sealed,
and serred in relation to the matters contained in
the said affidavits : — Dated this 17th day of July,
1880.'* A summons was taken out against the
caveators, to show cause why the above order
should not be set aside, and why they should not
pay the costs of application and the order to be
obtained thereon. The summons came on for
hearing on July 26th. Mr. Neighbour^ in support
of summons. Mr. O'Hea (of Messrs. Bnggs and
O'Hea), for the caveators, objected — (1) That
the summons did not show on whose behalf it was
issued ; (2) that the affidavit did not show who
the applicants were, and, for all the caveators
know to the contrary, they might be strangers ;
and (8) that the order sought to be set aside was
not produced, or any verSed copy of it. His
Honor : There is an old rule, notice of which is
posted up in my Chambers, that aU summonses
must show on whose behalf they are issued. I
must dismiss the application with costs, to be paid
by the solicitor for the applicants. On the 28th
July, a warrant to tax and a notice to bring in
these costs came on before the Master in Equity ;
but the solicitor for the caveators having taken
the objection that the Master had no power to
order the oosts to be brought in, the Master
allowed the objection, and dismissed the warrant,
saying that the application must be made to a
judge. Subsequently £5 was tendered to the
Master by the solicitor for the applicants, but the
Master refused to accept the amount without a
judge's order authorising him to do so. A fresh
summons vras taken out to show cause why the
order of l7th July, 1880, should not be set aside
as against Smith and Rugg, on whose behalf the
sxunmons was issued, and why Jane Feamley and
others should not pay the costs of the application
and order to be obtained. This summons came
on for hearing before Mr. Justice Molesworth on
August drd. The defects in the previous sum-
mons had been cured. Mr. Neighbour for the
applicants, Mr. O'Hea for the caveators. Mr
O'Hea objected that the costs under order of 26th
July, 1880, had not been paid ; but His Honor
said he had not made the payment of .the costs a
oondition precedent. Mr. Neighbour then urged



that the origmal order was bad on its face, because
(1) neither it nor the affidavits upon which it was
bflksed showed that it was made on behalf of the
caveators ; (2) that the order did not show any
intention on the part of the judge to exercise the
statutory jurisdiction conferred by section 117 of
ths Transfer of Land Statute ; (3) that neither
the order nor the affidavit showed it to have been
made before the expiration of fourteen days after
the notice by the Registrar ; (4) that the order
did not sliow any undertaking or security to have
been given or any sum lodged as indemnity ; (5)
that the order did not show such an undertaking
or security or sum to have been dispensed with.
Reference to re Wise, 2 V. R. (L.), 111. Mr.
O'Hea argued that the order was good on its face,
for it purported to be made on reading the affi-
davit and hearing the agents for the parties,
whose names are set out in the heading, as having
lodged the caveat ; and that the heading of the



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