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sale advertised by the Sheriff, a caveat was
entered by W., claiming under an unregistered
transfer, dated March, 1878, and a simultaneous
deposit of the certific ite of title. On summons
under sec. 42 of the Beal Property Amendment
Act, 1878, the Court refused to order removal of



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the caveat, decliniDg to decide the qoestioiiB in-
Tolyed until the careator had had an opportunity
of bringing the matter in some more formal
manner. Queetion of righto of an unregistered
transferee and of the righto conferred by a deposit
of certificate of title discussed. S. A. B., toI. 13,
p. 70.

Deprivation of Land. See Biggt and
another v. Wattrhouie, No. 58, ante.

Descript i on Incon sistent. See Small and
another v. Oleny No. 20, ante.

Deipcrlptlon Insufficient. See Mmdffway
T. Dat)y and Buick, No. 1, ante.

Description of Witness. 8et Anbreif
T. Scott, No. 79, ante.

Xlg. Destruction — Jforrwgt/ r. CUmente
—Transfer of Land Statute^ 1866 f^o. 801^, sec.
42 — Unregistered Lease — Statute of Frauds."] —
Sec. 42 of the Transfer of Land Statute does not
make a lease which is not registered void, but
makes it of no elTect as against a subsequent
registered conyeyance of the land. If a lease be
destroyed so that ito registration be made im-
possible, it would still beyalid between the parties
as a contract. -A. L. T., vol. 6, p. 107. See also
re Strong^ No. 218, post.

Detention. Certificate of Title. See
Schroeder ?. Harcourt, No. 104, ante.

Devisee. See re McCarthy, No. 19, ante.

Diligence . See re Thompson and Chippe.Nos.
26, 70, ante.

Xie. Discretion of Court — Be Jones —
Supreme Court Rules^ c. 8, r. 8.] — Upon an
application for letters of administration, the
Court has a discretion as to letting in a party to
be heard, although tiis caveat may have been
lodged without the time fixed by the rules. 1
W.W.&A'B.. I.E.&M.,67.

U.T. Discretion of Registrar — Ex

parte the Mutual Trust and Investment Society ^
Limited— Transfer of Land Statute (No. 301J,
sees. 132, 1^^— Recalling Certificate-— Refusal
to state grounds.] — Under sec. 132 of the
Transfer of Land Statute (No. 301), the Registrar
has a discretion, with which the Court will not
interfere by compelling him to state his grounds,
in determining whether it has appeared to his
satisfaction that a certificate should be called in
as issued in error. V. L. R., yol. 11, p. 166.

Disseisin. See Small and another, No. 20,
ante.



118. In re Boss and MeNeO—Mor^^e-
Distress— Land Transfer— Land TroMsftr Ad,
1870. sees. 62 and 63— Land Transfer AH, ISfi,
sees. 96 and 228.] — ^A mortgagor in poaaeasisa a

not a tenant or occupier within the meacing of
sec. 62 of the Land Transfer Aet, 1870. When
a mortgage empowers the mortgagee to exerote
" the powers of sale and all other powers conferred
on a mortgagee by the Land Transfer Act, 187^',
or any Act or Acto amending the aame, is
default in payment of the principal or interta
secured by memorandum of mortgage,** the mort-
gagee is clothed with the right of diatrunt conferred
by section 96 of the Land Transfer Act, ISSa
Where the interest of a mortgagor in land isd
his property in the goods thereon have beeo
assigned by oankruptcy or otherwiae, such goods
are not liable to be distrained upon under sectuB
96, unless and until the assignee has become ^
registered transferee of the mortgagor. QnsR.
whether such goods in the possession U tbi
official assignee would be liable to distraint etm
after registration. N. Z. L. R., 1887, p. 822.

XIO. HaH y. Stratton and others— Med
Property Act of 1861, clause 67 — Morigagee-
Tenant or Occupier — Distress.] — A morCg?^
in possession is not a tenant or occupier wixSisi
the meaning of clause 57 of the Real Properfr
Act of 1861. S. A. R., Tol. 7, p. 84. See al^
Moyle T. Qihhs, 120, post.



Moyle T. Oihhs—Tr€Uirfer of Laei
Statute (No. 301 J, sec. 66— Dover — Alienatiem
by Proprietor-Act No. 353, sec. 9 — T*wte Kftiie
which proceedings must be taken against the
Registrar to recover damages for Ices of dower ?^
— This was an action by Jane Moyle, a widow,
against the Registrar of Titles to recoTer frca
the assurance mnd, under the Transfer of Land
Statute, a sum of about £700 as dower, to whie^
she alleged she was entitled for certain land at
Prahran. For the plaintiff it was contended that
she was entitled to the same remedy against the
assurance fund as she would hsTe bad against tht
land if the Transfer of Land Statute had ne4
been passed, therefore she had fifteen years, net
six years, before she was precluded from* brinf^
the action. The Court held that under the ici
353 the plaintiff* was entitled to recoTer aguB^
the Registrar. Judgment was giren for plaintiS.
A. L. T., vol. 4, p. 149.

Dower, Release of. (See Acknowledg-
ment.)

lai. Duplicate Certificate — JTZahioa
V. Broum — Evidence — Ejectme7it.]—A. duplieale
certificate of title under the Transfer of Land
Stotute is admissible as prima facie eTidenoe of
title in ejectment. 1 W. A'B., & W. L., 86; 1
A. J. R., 88.

SkmtU



Duplicate Mortgage^ See re
No, 177, poet*



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1. Duties of Adm!nl8trator -.2?roop v.

dolonial Bank — Land under Transfer of Land
Staiuie — Relating to.'] — Per Stephen, J. : An
administrator of land under the Act No. 301 can
sell or mortgage, and is only accountable to hit
cestui que trust for what he does. 7 V. L. £.
(E.),71,78.



Duties of District Land Registrar
— 21 KitsUng (iHetrict Land Registrarjy app.y
T. E, Mitchelton, resp. — Land Transfer Act,
1870, tecs. 41, 88, S9—Pnoritg of Regitiration
— Caveat — Caveat against other than settled
lands — Equitable Jurisdiction of the Court.] — It
is not the dutj of the District Land Registrar to
determine cases of equitable prioritj. A careat
does no more than suspend the entry of an instru-
ment presented for registration, it cannot affect
priority of registration.

Semble : That the Land Transfer Act does not
exclude the equitable jurisdiction of the Court to
deprive an applicant for registration of an
advantage unduly gained : — Held, by Prendergast,
CJ., and Richmond, J. (Gillies, J., dissenting),
that the right of caveat conferred by section 88
of the Land Transfer Act, 1870, is not limited to
lands in settlement, but extends to any interest in
registered lands. Ct. of App., vol. 3, 261.

Duties, Imposition , ^ee Summers ex parU
AglufiHf No. 62, ante.

Duty, Registrar. See re Nelson Brothers,
36, ante ; ex parte Bond, 89, ante ; Fatchell r\
Maunsell, 113, ante.



Easement — Anderson y. the Maori

Mill Borough Council — Land Transfer Act,
1870, sec, 46 — Damages.]— When a certificate of
title is granted to a man reserving over other
lands an easement which was granted, by deed
before the land was brought under the Land
Transfer Act, the servient tenement remains sub-
ject to the easement, even if it has subsequently
been brought under the Act, and the certificate
of title therefore contains no mention of the ease-
ment to which the land is subject. The plaintiff
in such case can recover substantial damages,
although he cannot prove the existence of the
easement over other lands, without which that
over the defendant's lands would be useless, so
long as he can prove that he has been able to use
the latter easement heneficially. N. Z. L. R.,
Sup. Ct., vol. 3, 364. See also Anderson v. Maori
Sill Borough, No. 103, ante. See ** Evidence.
Refusal."

_^lgS. Effect of Surrender of Lease—

Kearton v. Richardson — Effect on certifie<Ue of
title to lease — Estoppel hy Judgment— Fur ehas-
ing fi-om assignee of insolvent at undervalue —
Transfer of Land Statute, sees. 49, 77, 80, 82—
Costs.] — This was a suit to restrain the execution
of a judgment in ejectment. The plaintiff in
ejectment olaimed ai pnrchaaer of a lease from



the assignee of the insolvent lessee. The plain-
tiff in equity alleged that the lease had been
surrendered. Mr. Neighbour for the plaintiff;
Mr. A'Beckett for the defendant. For the plain-
tiff reference was made to Fhene v. Fopplewell,
12 C. B. N. S., 334 (as to surrender by operation
of law) ; Doe v. Phillips, 2 Bing., 13 ; Lgon v.
Reid, 13 M. and W., 285 ; Robertson v. Keith, 1
V. R. Eq^ll ; Transfer of Land Statute, sees.
49, 77 ; WoodfaU, pp. 272, 275. For the defen-
dant, Calvert v. Fate, 2 V. L. R. Eq., 201n ;
Flitten v. Alflreg, L. R., 10 C. P. ; Transfer of
Land Statute, sees. 80, 82. His Honor reserved
his decision, and on July 5th gave judgment as
follows : — A Mr. Aitkin had a daughter, the
plaintiff Ellen, and a son, Mr. Edward Aitkin.
He died, and his widow married Mr. Oox. The
plaintiff married Mr. Eearton. In March, 1867,
Eearton acquired title as proprietor under Act
No. 801 of the land in dispute, over 80 acres in
the parish of Eerrie ; on September 9th, 1867,
made a lease of it under the Act to Cox, who was
his wife's step-father, for twenty years, at a rent
of £17 10s., with a right to purchase at £350.
Eearton died July, 1870, having by his will
devised this and other property to his wife, the
plaintiff, during viduity, and appointed her and
others executors. She obtained probate Decem-
ber 1st, 1870. She afterwards became a lunatic,
and was confined in an asylum. In August,
1876,. there was a judgment against Oox, and his
tenant interest was sold imder fieri facias, but in
October, 1876, he re-purchased it for £50. The
plaintiff about that time was let out of the
lunatic asylum temporarily, and was with a friend
at Richmond. The bill alleges that at that time
she appUed to Cox for payment of three years'
rent in arrear and to perform the covenants in
the lease, and threatened to sue him, and that
Cox proposed and she agreed that he should give
up and surrender the land and lease, and in con-
sideration thereof be released from rent and
liabilities under it ; and that in pursuance of it,
Oox delivered the lease to the plaintiff *8 agent,
and gave possession of the land to the plaintiff,
who has continued in possession and released Cox
from his liabilities, and permitted him to reside
on the land and given him occasional employ-
ment ; so that the lease was surrendered by
operation of law. The defendant, Mr. Richard-
son, having a demand against Oox, brought an
action against him, and Cox voluntarily seques-
trated his estate, October, 1877. Mr. Jacomb
was the official assignee, and, after some hesita-
tion, at the defendant's instance made himself
the holder of the lease to Oox under No. 301, and
assigned it under the same Act to the defendant
in consideration of £5 cash and £5 more to be
paid on obtaining possession ; and defendant got
a certificate of title. He then proceeded in the
County Court by ejectment against Cox, and the
plaint^ was let in to defend, but defendant ob-
tained judgment, and this bill was sealed to
restrain execution. The witnesses ibr the plain-



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tiff are Cox and Edward Aitkin. They state an
interview between plaintiff and Cox, Januarj,
1877, in Bichmond, but do not state any agree-
ment to forego previous rent, but an agreement
to give up, and that C^x should remain to get the
growing crop off ; that in April plaintiff went to
the place, and has ever since resided there with
her mother and Oox ; that Aitkin went up shortly
after, and it was then arranged that plaintiff
should keep the possession, and Cox remain as a
labourer, and that it was so done. As evidence
of this arrangement, Aitkin got and has kept
Kearton*B certificate of title and the lease to Cox.
They do not state the agreement to release
previous rent, and could not well, for Aitkin
appears to have distrained Cox for rent due to
the plaintiff in the interval between January and
April, 1877, and Cox's schedule described the
rent as a continuing debt. They allege specified
sums paid at times not specified by Aitkin to Cox
for wages, but do not pretend that there was any
account ; they do not show that the plaintiff ever
was handed any proceeds of the land. Cox does
not in his schedule state the lease as his property,
but calls himself a farmer ; states the burning of
crops as a cause of insolvency ; failure of crops,
property injured by fire, February, 1878, and
want of means to cultivate, and as a debt a
labourer's work on the land, 1878. Medical evi-
dence was offered that the plaintiff could not be
examined without the risk of returning insanity.
The reason for it may have been that she could
not conscientiously swear to the facts alleged on
her behalf, or I think more probably that she
would not appear to understand anything about
them. 1 believe the fact to be, what appears to
the world without, that Cox has held this farm
as his from 1867 ; that the plaintiff, his wife's
daughter, has lived with him since April, 1877,
being supported by him, and not virtually having
any money passing through her hands, or being
able to understand this suit. If Cox, in fact,
gave up possession, and plaintiff accepted the sur*
render oy unequivocal acts, it would as to ordi-
nary interests be a surrender. It has been argued
that would not be effectual as against defendant
holding a certificate of transfer, and that the
judgment of the County Court estops plaintiff
from raising the question. On these points 1
express no opinion. Defendant is charged with
having got this title surreptitiously from Jacomb
at great undervalue. He was a creditor, reason-
ably wished to get payment of his debt, had a
right to make the property of Cox avulable ; but
he has bought witnout competition and at under-
value, causing the sacrifice of an interest which
he really had in the lease. An attempt has been
made to argue that the plaintiff is entitled to the
land as for forfeiture by breach of covenants in
the lease. No such case is made by the bill, and
it would be open to answer. From the circum-
stances of de^ndant's purchase from Jacomb, I
do not give costs on the dismissal of the bill. A.
L. T., 1880, p. 11.



lag (A) ESectmenX ^Siewart v. Bolton—
Action Jo^ — Writ — Several FarcelsJ] — Several
parcels of land, held under distinct titles, may be
joined in one writ of ejectment. Sec. 120 of the
Common Law Procedure Statute, 1865, does not
prohibit such a joinder, but the joinder of other
kinds of actions with that of ejectment for two
different pieces of land are not causes of action of
a different kind. 8 Y. L. B. (L.), 306 ; 4 A. L.
T., 79. See also Feathentone v. Eamlon, 4>
ante; Slack v. Downton^ 11, ante; Pannau v.
Pannan, 16, ante ; re Seldon, 82, ante ; Coleman
and Clark y. Siria, 46, ante ; Jone* v. SeUickf
78, ante; Sanders v. Wadham, 88, ante;
KicJchnm v. Julien, 109, ante ; IFilkineon v.
Brown, 121, ante ; Dyke v. Elliott, 133, poH ;
Finnoran v. Weir, 186, poet ; Wadham v. Bmttle,
155, post; Buckett v. Knobbe, 167 168, post;
Delaney v. Sandhurst Building Society^ 17^, post;
Colonial Bank v. Boache, 187, post.



Ejectment by Mortgagee — ColomUi

Bank of Australasia v. Babbage — T^ngfer of
Land Statute (No, 301), sec. ^^—Adrene
Possession — Tenancy previous to Mortgage-^
Demand of Possession.'] — The possession of a
tenant of a mortgagor, under a tenancy created
prior to the mortgage, is not adverse to the title
of the mortgagee. The tenant is not obliged
voluntarily to attorn to the mortgagee, and cazmot
be ejected by the latter widiout a previou
demand of possession. V. L. B., vol. 5, L. 462.

Election. See re Perry, No. 92, ante.



12V. Manning v. Crossman — Beat Property
Act, 1861 — Begistered Holder — Encumbrances.']
— A holder of a certificate of title holds it
absolutely free from all encumbrances not notified
thereon, and is therefore not bound by any
demise not so notified. Per Gwynne, J. : Under
the Real Property Act, a term of less than three
years cannot be registered, and semble cannot
therefore be created. 8. A. B., vol. 5, p. 130.



, Enlargement. Settlement Powers

— Be Jfergusson — Trust Property Act, 26 Vtet.,
No. 12, sec. 26 — Mortgagor has not the legal
estate — BuU in Shelley* s case — Settlement —
Mortgage — Limitations in Equity ofBedemptiom.]
— The mortgagor of land, by deed of settlement,
conveyed to trustees and their heirs, to such uses
as Sarah F. should from time to time bj deed
appoint, and in default of or until such appoint-
ment, to the use of said trustees, their bars and
assigns, during the life of the said Sarah F.,
upon trust to permit the said hereditaments aod
premises, and the rents, issues and profits tbereoC
to be used and ei^'oyed for the sole and separate
use of said Sarah F. for life ; and from and after
her decease to W. F. for life ; remainder to the
use of the heirs and assigns of said Sarah F. ^-
Held, that the 26 Vict., No. 12, sec 25, does not
fdter the rules of conveyancing so as to caoae the



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mortgagor to retain the legal estate, notwith-
stancUDg the mortgage deed. The rule in
Shelley's case applies to this oonvejance, and
Sarah F. takes the equitable fee. Bj a sub-
sequent indenture of mortgage, reciting the
settlement and a contract for loan to Sarah F.,
W. F. and G. F., the land was conveyed to P.
ProTiso that if said Sarah F., W. F. or Ot, F.
should pay, &o., said P. should, upon request, and
at costs of Sarah F., W. F. and &. F., recoovey
** unto the uses to which the same stood limited
immediately before the execution of these
presents, or otherwise, as the said Sarah F., her
heirs or assigns shall direct.'*

Semble : That the limitations of the equity of
redemption did not enlarge the power given to
Sarah F. by the settlement, and would not, of
itself, authorise her to dispose of the land by will.
N. S. W. L. B., vol. 2, p. 43.

Entry. See Sanders v. Wadham, No. 88,



ante.

Equitable Jurfsdictlon of Court. See

Kittling v. Mitchelsont No. 123, ante.



Equitable Mortgage — Christie and

others v. JPowles — Statute of Frauds^ sec. 4 —
Conveyancing Ordinance, sec. 42 — Land Transfer
Amendment Act, 1871 — Land Revenue Receipt —
Nominal Damages — Evidence in Mitigation —
Part Performance^ — A., being the owner of
land, agreed to sell it to B., and handed him the
Land Bevenue receipt for the purchase money.
B. having borrowed money from Y., handed him
the receipt, and verbally agreed to execute a
mortgage. B. became bankrupt, and A. subse-
quently transferred the land to Y. : — Held, that
these facts could not be pleaded by A. as a
defence to an action by B.'s trustees for the value
of the land, nor could they be given in evidence
in mitigation of damage : — Held, also, that Y.'s
agreement vrith B. was not enforceable, and that
his possession of the receipt and payment was not
a part performance sufficient to take the case out
of the Statute of Frauds. N. Z. L. B., ^o.
1,106.

180. Neal v. Adams — Land Iransfer Act-
Caveat — Possession of Certificate — Sheriff's
Sale."] — Land described in a deed as a suburban
section in the town of Picton is not a fatal mis-
description of the land, and means a section in
the district of Picton. A registered owner of
land under the Land Transfer Act verbally agreed
to give a mortgage to his creditor, and handed
him the Crown grant. The owner died, and the
administratrix executed a mortgage deed not in
the form required by the Act. The land was
sold by the Sheriff under a writ of sale in a suit
against the administratrix. The Sheriff executed
a transfer of the land, which could not be
registered without the Crown grant. The mort
gagee lodged a caveat to protect hia interests : —



Held, that he had an interest to support his
caveat, which therefore would not be removed
on summons. N. Z. L. B., Sup. Ct., vol. 4,
p. 177.

131. In re Nathan, Insolvent.^ — An equitable
mortgage may be created by the deposit of a cer-
tificate of title under the Beal Property Act, 1861.
S. A. B., vol. 1, p. 166.

132. Re Wildash and Kenneth Hutchison^
ex parte Mickin — Insolvency — Equitable
Mortgage — Priorities — Fraudulent Preference
— Caveat — Insolvency Act, 1874, sections
87, 107, 108, lOd—Real Property Act, 1861,
sections 9, 43, 44, 56, 99, 101, 102.]— W.
and K. H., partners, and conditional lessees of
certain lands in Queensland, transferred these
leases to S. H. in the year 1876. G. H. was
ignorant of the transfer, W. acting for him under
a general power of attorney. The balance of the
rent was subsequently paid ; it did not appear by
whom, and Crown grants of the land were issued
to G. H. In April, 1876, the lands were trans-
ferred from G. H. to A. H. without the know-
ledge of either of them, W. acting for G. H., and
the solicitor for all tJie parties acting under a
general power of attorney for A. H. It did not
appear that any consideration passed. In Sep-
tember, 1876, W. and K. H. became insolvent,
and in January, 1877, obtained their certificates
of discharge. On June 5, 1877, the deeds
relating to the lands were deposited by A. H.*s
attorney in the Joint Stock Bank to cover an
advance to W. and K. H. On June 16, 1877,
the official trustee in insolvency entered a caveat
in the Beal Property Office against any dealings
with the land. The advance was not made by
the Bank until June 25th : — Held, that the
transfer to G. H. and subsequent dealings with
the land were fraudulent and void under the
55th, 107th, 108th and 109th sections of the In-
solvency Act, 1874 : — Held, also, that the Be^
Property Act does not invalidate equitable mort-
gages by deposit. That the trustee by lodging
the caveat had protected his claim against all sub-
sequent transactions, and that his claim was
therefore prior to and must prevail over that of
the Bank. Q. L. B., 1887, p. 47. See also
Patchell V. MaunseU, No. 118, ante.

133. Equitable Pleading — Dyke v.



Elliot — FJeciment.'} — Semble : That an equitable
plea cannot be pleaided in an action of ejectment.
S. A. B., vol. 4, p. 128.

13^. Equitable Power of Court—

Jonas and others v. Jones — Land Transfer Actt
1870, sec. 129 ^Fraud— Mistake— Registered
Proprietor — Certificate of Title.'] — A. agreed to
sell to B. and C. separate parcels of land, held
under the provisions of the Land Transfer Act.
By an innocent mistake of all the parties, the
land agreed to be sold to B. was transferred to C,



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and that agreed to be sold to 0. wae transferred
to B., and certificates of title were issued acoord-
inglj. Upon the mistake being discovered, C.
took possession of the land contained in his cer-
tificate, whereupon B. brought an action, claim-
ing that C. might be decreed to execute a transfer
to reotifj the mistake : — Held (1), that this was
an action coming within the enacting portion of
sec. 129 (1) of the Land Transfer Act, 1870, and,
therefore, could not be maintained ; (2) that the
fact that 0. kept possession of the land,
erroneouslj transferred to him, after the discovery
of the mistake, did not amount to fraud within
sub-section 4 of section 129; (3) that as the
action came within section 129, the general equit
able jurisdiction of the Court oould not be
invoked for relief. N. Z. L. R., No. 1, 15.

IPS. Equitable T\t\e —8mUh v. Dacy
and BuUer — Lamd Trantfer Act — Leate —
Merger — Meffutratien.'] — C, the owner of a free-
hold property, the title to which was under the
provisions of the Land Transfer Act, executed
three mortgages over the fee. He was also the
assignee of a leasehold interest in the same land,
over which interest a mortgage also existed. The
third mortgagee, under his power of sale, sold the
fee to S., and executed a transfer to him, which
was not registered for some days. In the mean-
time, S. paid oS the mortgage over the lease, and
registered the release. The day after this regis-
tration, and before the transfer of the fee to S.
was registered, C. signed an agreement to assign
the lease to B., who entered a caveat to protect
his rights : — Held (1), that B. had no title of any
kind which he could set up as against 8. ; (2)
that although at the date of B.'s agreement 8.
had no complete title, he had a complete equit-
able title against B. ; (3) that the lease absolutely
merged in the fee when the release of the mort-



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