Australia.

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

. (page 78 of 83)
Online LibraryAustraliaThe land transfer laws of Australasia: being the full text with side notes ... → online text (page 78 of 83)
Font size
QR-code for this ebook


gage was registered. Qusnre, whether the lease
did not merge on the purchase by G. of the fee,
subject to the rights of the mortgagee of the lease.
N. Z. L. E., No. 1, 898.

130. Finnorctn v. Weir-^Land Transfer
Aei — Registered Proprietor — Fraud — Tenancies
for less than three years — Pleading and Practice
— lyectment.'] — ^Where a creditor persuades his
debtor to attempt to coerce a tenant of the latter
to buy the land he occupies, under a threat of
selling to someone else if he does not, and so
deprive him of the benefit of a valuable agree-
ment to lease, and failing in this, buys the land
himself with a full knowledge of the factSy.he is
guil^ of fraud within the meaning of sec. 89 of
the Land Transfer Act, 1885, and the tenant has
a good equitable title binding on the purchaser
and registered proprietor.

Semble : That legal tenancies for terms not ex-
ceeding three years not being registerable can be
created without registration under the Land
Transfer system. An equitable title to land under
the Land Transfer Act can be set up in defence



to an action for ejectment without a croes adioo
or counter-claim. N. Z. L. R., 1887, p. 28a

Equity. See A«7 v. Lindsag, No. 94^ aeU;
KaU V. l^oder, No, Impost.

Erroneous Description. See Wiggias
{app,)i SammiU {resp.)^ No, 38, ante.

Error, Applications . /}.



XOT. Error — AA^gy v. (hok—Misiak-
Transfer of wrong piece of Uand — Srror ofptem-
tiff onlg — Re-transfer decreed on repoj^mtnt fj
purchase money wi& interest and casts — Spee^
performance <^ contract j as in manner in tepid
by plaintiff refused^ there being no part perfamr
ance by defendant — Conduct of defendasA-
Interest — Costs,'] — This was a suit to hare certeii
land re-transferred to the plaintiff, on the gnnai
that it had been transferi^ by the plau^iff to
the defendant in mistake for another piece d
land. The bill also alleged that the defendsat
was fraudulently taking advantage of the mistsb
by seeking to evict the plaintiff. The &eli
appear sufficiently in the judgment. Mr.
A'Beokett, for the plaintiff, cited &arrard t.
Frankel, 30 Beav., 446. Mr. Holroyd, Q.C., sad
Mr. Topp, for the defendant, cited Sarris t.
Pepperellf L. B., 5 Eq., 1 ; Torrance t. RoUe^
L. B., 14 £q., 132; Wright v. Ooff,2tBeKf^
207 J Solomon v. 8,, 4 V. L. E. Kq., 40. B&
Honor gave judgment as follows : — The plaintiff
in this case sought to set aside a transfer to tbe
defendant on the ground of mutual mistake. Htf
plaintiff is a farmer at Daylesford, and ovnei
two allotments of land, 6a, on which his home*
stead was erected, and 1b, which vras a paddod
partly fenced, but uncultivated. The plais^
wishing to sell the paddock, 1b, instructed Mr.
Patterson, an auctioneer at Daylesford, to get tbe
certificate of title from the Bank. The phindff
and Patterson went to the Bank together, and bj
a blunder on their part the wrong certificate wn
chosen, the certificate for 6a instead of t^e oeiti-
ficate for 1b. There is no doubt the {daintiff and
his agent grossly blundered in this. Allotmeot
6a was advertised for sale by Patteraon. Tbe
defendant came to the auction and purchased,
thinking it was the homestead allotment whicb
had been sold. The other purchasers at Uie sile
knew it was the bush paddock which was to be
sold. The defendant had, prior to the sale, sstis*
Bed himself that 6a was the homestead, by
enquiring of Mr. Devlin, the town surveyor st
Daylesford. The matter was immediatelr con-
cluded, the contract signed, the deposit paid, and
the bills given for the balance. The defendiot
could not have got out of this bargain, he wn
fixed with it. The price was cheap ^ he got the
homestead, dear if he got the bush p»jdook.
The defendant soon found out that there bsd
been a mistake. He was then in a state of doubt
as to what ha had got, which waa to a <



Digitized by VjOOQIC



EBB]



DIGEST OF CASES.



[EST



extent excusable. Some timber was then remoTed
from the bufh paddock, and the defendant
claimed compensation, not actually claiming the
paddock, but saying if he had purchased the
paddock he was entitled to compensation. The
defendant did notpursue a plain course afterwards,
but rather a shuffling course, which was attribut-
able to his doubt on the subject. He apparently
thought that by lying by he might deriTC a
benefit. He alluded laughingly to crops which
the plaintiff had put on the land of 6a. A cou
siderable time elapsed without anything being
done, which is no doubt a demerit in the defen-
dant. The bill seeks relief cs on the ground of
mutual mistake. That is not ' proTed. The
plaintiff did not intend to sell the homestead ;
but there is little doubt the defendant intended
to purchase it. The defendant did not take
possession, or attempt to take possession. The
plaintiff's mistake would only entitle him to get
rid of the bargain to sell 6a ; but the plaintiff has
endeaFoured to stick the defendant for a bad bar-
gain, to take iB. The suit as framed would not
be sustainable without an allegation which is
proved to be false, that the defendant went into
po9seB«ion of 1b. If the defendant had gone into
possession, it would take the case out of the
Statute of Frauds. The plaintiff might say, in
this case, that the defendant's conduct had mis-
led and injured him, and the defendant's lying
by and demanding compensation for the wood re-
moved from iB might be ground for relieving the
plaintiff from the bargain to sell the homestead.
But the demanding back the price of the wood
removed and the inconvenience suffered by the
plaintiff are not put in issue by the bill. It
appeared in evidence that the plaintiff subse-
quently cleared some of the land. This is not in
issue. I shall give the plaintiff the relief of not
losing his homestead. He must, however, pay
back the purchase money. As to interest, the
test whether the defendant should get interest is,
has he got any profit out of 1b, If the defen-
dant ha^ been in possession, he would not have
been entitled to interest. But the defendant has
not been in possession, and has got no profit,
neither has the plaintiff suffered any loss. The
defendant thougnt he was getting productive land,
and according to the plaintiff's contention wat
really getting a waste piece of land. The defen-
dant should, therefore, get interest at 8 per cent.
The term **Bank interest" is objectionable, as
different Banks charge different rates, and their
rates vary at different times. The proper interest
is Court interest at 8 per cent. These are prac-
tically the terms the defendant offered to the
plaintiff. The correspondence showed that this
offer was made. The defendant's solicitor wrote
a letter after the bill and before the answer,
making this offer, and the phdntifTs solicitor
declines to accept it, and refers to a previous offer
of a similar nature made before the suit. The
plaintiff did not seek to modify the defendant's
proposal. The plaintiff never offered anything



from beginning to end in this case. He tried to
make the defendant take a bad bargain. Not
having accepted the defendant's offer, which was
a proper one, the plaintiff ought to pay the costs
of the suit as a condition precedent to his getting
the land. Declare that sale of allotment 6a being
by a mistake of plaintiff's should be set aside, and
that the defendant should re-convey the same to
the plaintiff on being paid the purchase money
actually paid therefor, and interest at 8 per cent,
until paid, and the costs of this suit. And there-
upon order the defendant to execute a transfer to
plaintiff. Kefer to Master to tax costs. If
principal, interest, and costs not paid within
six months, bill to stand dismissed vnth costs.
Liberty to apyly. A. L. T., 1880, p. 2.

108. Hauett v. Colonial Bank — Trcmsjer of
Land Statute (No, 801), #ec. 4/^— Estate of
reffUtered proprietor paramount — Section 106 —
Effect of TVanefer from Sheriff of Land im-
properly sold under writ offl.fa, — Section 144
— Misrepresentation,'] — Rule nisi for a nonsuit or
new trial. The action was brought by one John
Hassett against the Bank to recover the Talue of
certain land which the Bank had improperly
caused to be sold. The Bank had recoTered
judgment against another John Hassett, an uncle
of the present plaintiff, and had issued execution
against him, the writ of fi. fa being lodged vrith
the Sheriff of the district. The Sheriff sold land
belonging not to the uncle but to the nephew.
The land was purchased at auction on behalf of
the Bank, who lodged the transfer from the
Sheriff at the Titles office, and obtained a C.T.
The Bank then sold it to another person who
claimed it from the nephew, who then for the first
time heard of the mistake. The plaintiff con-
tended the Bank was answerable for the error,
and obtained a verdict. Defendants moved for a
new trial on grounds fuUv set out, when same
discharged. A. L. T., vol. 8, 88. See also ex
parte Righy^ No. 77, ante.

Error, Issue Certificate. See Campbell v.
Jarrett, No. 96, ante.

Error, Transfer Grant. See Sharpe t.
Sadley, No. 3, ante ; Ashley v. Cook, No. 137,
ante.

Estate for Life. See re Knapman, No. 41,



ante,
X30. Estoppel —JTeZA/ t. Fuller— Jfemc



randum of Transfer — Deed— Vendor* s Lien under
Real Property Act.] — A memo, of transfer under
the Real Property Act, 1861, in the form D given
in Schedule, does not, when registered, operate
as an estoppel so as to prevent vendor from show-
ing non-payment of purchase money.

Semble : A vendor of land under the Act has a
lien for unpaid purchase mone^ against the pur-
chaser, although transfer r^gutered. S. A. B.,



Digitized by VjOOQIC



EST]



DIGEST OP CASES.



[EXP



ToL 1| p. 15. See also Sharpe t. Hadley, 8,

ante; Bwme y. Stewart, 28, ante; Jellieoe t.

Wellington Loan Co., 50, ante; Sateett t.
Colonial Sank, 188, aii^.

Estoppel by Judgment. See Kearton t.
Richardeon, No. 125, aii^tf.

140. EquUahle Buildxng and Invettment
Co. T. Roes — Conveyancing — Description of par-
cels in Crown Orant — Survey — Occupation —
Poeeetsion — Evidence — Land Transfer Act."] —
Where paroelB of land are granted bj the Crown
haring no natural boundaries, the original sunrej
marks being gone, and when there is no great
difference in admeasurement, a long occupation
acquiesced in by the adjoining owners will be
taken bj the Court as convincing endence that
the lands occupied are the lands granted, notwith-
standing that they cannot be made to tally with
the plan on the grants. Next to natural bound-
aries, the highest regard is had to lines actually
run and comers actually marked at the time of a
grant, and if the description is doubtful, parol
evidence of the construction given to it by the
parties is admissible, and will bind their suc-
cessors in title.

Semble : That even under the Land Transfer
Act possession should be the best evidence of title.
N. i. L. B., 1887, p. 229. See also ex parte
Rowan, 14, ante ; Chomley t. Firebrace, 21, ante ;
Wilkinson v. Brown, 121, ante.



Evidence, Impeachment Certificate—
See Chisholm v. Capper, No. 86, ante.



Evidence In Mitigation. See Christie
and others v. Powles, No. 129, ante.



Evidence. Title, Easement.



See Jones y.



Fark, No. 81, ante.

Executed Contract (See Coneldera-
Clonl ^

1^1. Execution Creditor — McOlone v.
Registrar of Titles— The Real Property Act of
1861 (^25 Vict., No. 14;, sees. 83, 84, 43, 48 and
139, and the Real Property Act of 1877 (4,1
Vict., No. \HJ, sees. 14, 16 and ^h— Registration
of Memorandum of Transfer.'^ — On the 27th
of August, 1886, N., being the registered pro-
prietor of certain lands, under the Real Property
Acts executed a transfer of the land to M., and
on the 6th September, 1886, the C. Qt. and
transfer were lodged for registration. On the 2nd
September, 1886, two writs of execution against
it nad seen lodged in the Registry, and on the
7th September, 1886, the Registrar entered them
on the deed of grant and m the register book
against the land : — ^Held, that the Registrar has
no authority to determine questions of priority
between the transferee and the execution creditor,
and that he vras justified in refusing to register



the transfer unless the transferee eadorsed on it
the two writs of execution as charged apon the
land. Q. L. J. R., 1887, p. 182. See also
" Purchase."



— Executor- .CflqM)&gZZ y. JarreU—

Transfer of Land Statute— Will — Co#/#.}— A
testator devised a portion of a block of land to
his daughter, and the other portion to his aoo,
who was appointed executor. The son induced
the daughter to bring the land under the Act 5a
301. In a suit brought by the daughter to reet^
the certificates of title issued : — Held, that the
son was liable to pay plaintiff's costs, beoaose it
was his duty as executor to see that plaintiff undo-
stood the application for the cerUficate of title.
7 V. L. R. (E.), 137 J 3 A. L. T., 49.

1^3. Executory Contract — Lan^ t.

RudwoU and others — Real Prttperty Act, 1861-
Agreement for Sale—Paymeni of Purchae
Money."] — No instrument or agreement in reopst
of land under the Real Property Act, 1861, is d
any vaHdity or enforceable, either at law or ii
equity, unless the dealing or transaction be oee
contemplated by the Act, and such instrument sr
agreement be in the form provided by the Act;
the Real Property Act contemplating no exeea-
tory agreements and no instruments that caoaot
be immediately registered. 8. A. R., yol. 6;
p. 75.



Executory Contract — gWflAw^M

V. Swann—Real Property Act, 1861 — Trusts^
Instrument.] — 1. An executory contract for the
sale of land, under the provisions of the R«sl
Property Act, 1861, though not in anj form pro-
vide by such Act, and therefore incapable of
registration can, as between the immediate paxlics
thereto, be enforced in equ ty. 2. Trusts aay
exist and be enforced (except after a sale to as
innocent purchaser) against the proprietor of the
estate or interest appearing on the register. 3.
An " instrument " within the meaning of sectioe
86 of the above 'Act is an instsounent in one ot
the forms prescribed by the Act, and capable erf
registration. 4. The words ** or other action for
the recovery of land," following the wof4
" aciion of ejectment " in section 124 of the above
Act, refer to actions at law in the nature of eject-
ment which may by possibility come under the
cognizance of a Court of Bquity ; but do not
indude a suit for specific performanoe. 8. A B.
vol. 11, p. 102. See also Langs v. RudwoU, N9
29, ante.

l^S. Express Covenants and Powers-
Bucknall v. Reid — Real Property Act, 1861, j«i.
4Q,hO and H^— Right of Reentry .]—Se<Akm% ^
and 50 of the Real Property Act, 1861, providf
that certain covenants and powers shall be imphed
in every memorandum of lease of land under thst
Act, and section 89 provider that erery implied
covenant and power may be negatived or mocked



Digitized by VjOOQIC



EXT]



DIGEST OP CASE?.



[FI. FA.



"by express declaration in the instrument. These
provisions do not prevent the introduction into
such memorandum of lease of rerbal corenante
&nd powers of an entirely different character from
and not mere modifications of the implied cove-
nants and powers. S. A. R., toI. 10, p. 188.

Exttngulshm ?nt Title. SeeFeathentoney.
SaiUonj No, 4, ante.

Falsa Demonstratlo . See Small and another
T. Glen^ No. 20, ante.



Fieri Facias — Palmer v. Andrews-
Heal Property Act, 1861— Transfer hy Sheriff."]
— The Sheriff has no power to convey or transfer
to the purchasers land under the Real Property
Act of 1861 sold by him by virtue of a writ of fi.
fa. And per Wearing, J. : Quere, whether he
has power to sell lana under that Act ? S. A. F.,
vol. 7, p. 19.

X^L7. Palmer v. Andretos — Real Property
Act, imi—Tranrfer by Sheriff— Fi. Fa.]— The
Sheriff has no power to convey, or transfer, to the
purchasers land under ihe Real Property Act of
1861 sold by him by virtue of a writ of fi. fSa.
And per Wearing, J. : Quaere, whether he has
power to sell land under that Act ? S. A. R.,
Tol. 8, p. 281. See also re William Wadham,
No. 114, ante.

X'AO.JI.^Fa., Transfers u nde r — Patchell
y^ Mannsell— Transfer of Land Statute (No. 301),
tec. 106 — The Megistrar is bound to register a
ircsnsfer of land sold under a writ of fi. fa.,
although the certificate is not produced to him^
and he has received notice that an encumbrance on
such land existed at the time of the transfer, by
means of a caveat lodged by the encu^^brancer,
and allowed by him to lapse after no f ice of the
intended registration of the transfer under writ.]
— Appeal from a decision of the Judge of the
County Court, Melbourne, dismisriiig a bill in
which the plaintiff claimed to be recognised as
equitable mortgagee over a piece of land. Mr.
Fogarty, registered proprietor o( a parcel of land,
on January 7th, 1879, deposited his Crown grant
with the plaintiff, Mr Patchell, to secure £30
168. then advanced, and further advances. Prior
to 14th February, 1880, by further advances, the
debt amounted to £44 13s. Mr. Brennan, a
creditor of Fogarty, had proceeded by action
against him, obtained judgment, and seeking to
enforce it a&^ainst this parcel, on the 14th Feb-
ruary duly lodged a copy of his writ of fieri &cia8
with the Registrar, under the Act 301, sec. 106.
The plaintiff on February 24th got a mortgage
from Fogarty. On March 5th he lodged a caveat
at the Transfer of Land office, and served notice
of his claim on the Sheriff, who had advertised a
sale intended on the fieri facias, and published
such notice in a local newspaper. The sale took
place March 9th, and the defendant, Maunsell,



attended and purchased for £6 10s. There was
no evidence to fix him with notice of plaintiff's
claim. He procured an assignment from the
Sheriff of Fogart/s interest, and on April 2nd
lodged it at the Transfer office, claiming to be
registered as proprietor. The Registrar refused
such registration, and on April 24th gave the
defendant notice of the claim of the plaintiff, and
subsequently on May 5th, the plaintiff applied to
the Registrar to register his mortgage. On the
20th July, 1880, he commenced a County Court
suit, praying for an account of what was due to
the plaintiff on the securitv,and for an injunction
to restrain the Registrar of Titles from registering
the transfer from the Sheriff to the defendant.
The Judge of the County Court dismissed the
plaint, and the plaintiff appealed. Mr. A'Beckett,
for the appellant, that as, under the Statute, the
production of the certificate of title was essential
to registration of a transfer, unless dispensed with
by the Registrar, and as, under sec. 130, the
Registrar was only authorised to dispense with
production when satisfied by statutory declaration
that the certificate had not been lodged as security,
the defendant's could not lawfully be completed.
That the fact that the plaintiff's caveat had
lapsed before he instituted the suit was therefore
immaterial. The plaintiff need not have entered
any caveat, but might rely upon the protection of
sec. 130. Mr. McDonald and Mr. Quick, for the
respondent, contended that the Registrar was
bound, under sec. 106, to register the Sheriff 's
transfer, unless prevented by caveat or injunction.
That the caveat having lapsed, the Registrar
should have at once registered the defendant as
proprietor, and that since the Court should
regard that as done which ought to have been
done, the defendant was therefore in the position
of a registered proprietor ; the plaintiff had no
equity as against him, and the plaint was rightly
dismissed by the Judge of the County Court.
His Honor delivered judgment. After recapitu-
lating the evidence, he said: The Transfer of
Land Statute, as I have held in the London
Chartered Bank v. Mayes, 2 V. R., 104, and
other cases, recognises the rights of creditors
claiming by deposit of certificate of title as against
their debtors, and those claiming under them,
until the latter have obtained protection under
the Act as registered proprietors, and the Act in
some degree protects such creditors having
possession of certificates of title from being
defeated by the registration of conveyances or
instruments from the owners named in them, by
requiring the Registrar, before registration, to see
and act on the certificate, or satisfy himself that
it has not been deposited as security. But there
is no provision against the efficacy of registrations
effected by him contrary to those directions, and
in regard to title acquired under sales by fieri
facias or orders of the Court, where the purchaser
is not the proper custodian of the cer-
tificate of title. There is no provision that
the Registrar should make inquiry about un.

/



Digitized by VjOOQIC



ri.FA.]



DIGEST OF CASES.



[FOB



registered securities or encumbrancee, or forbear
to register sales from the Sheriff, &c.| because he
has notice of their existence. Person* having
security by deposit are protected, but not in
inactiTitj nor by cayeats, or notices to Sberilb as
to intended sales bj fieri iadas. An opposite
Tiew would be conyenient to money-lenders, who
wish their debtors may carry on business as usual,
and contract debts which are to be postponed to
theirs. But unsecured creditors, on the other
hand, may reasonably insist that they may enforce
their demands by action and execution, and pro-
ceeding regularly under the Act and selling are
not to be frustrated by concealed incumbrances,
and purchasers at Sheriff's sales may so insist.
I affree with the conclusion of the learned Judge,
and dismiss the appeal with costs. This subject
deserres pubhc notice as to narrowing the faith of
people advancing money on security by deposit.
Appeal dismissed with costs. A. L. T., 1881,
p. 105.

^ Fi. F a., Writ s of . See Jonet t. Fork, No.
l^fcO. FI. Fa., Purchase Lease under—



Umpherstone t. Wadham.'] — ^A purchaser of a
lease from the Sheriff, who sells by virtue of a
writ of fi. fa., is estopped from setting up any in-
formality in the transfer where he has subse-
quently paid rent to the lessor.

Semble: That since the Real Property Act
recognises no estate which does not appear on the
register, the existing form of transfer from the
Sheriff confers no valid title on the purchaser.
S. A. E., vol. 6, p. 17.

XgO> Fl. Fa., Registration of — 04les v.
Lesser — Transfer of Land Statute {No. 301),
sees. 106, \(yi—Sale hy Sheriff— Official Assignee
not a purchctser for value,'] — Section 106 of the
Transfer of Land Statute (No. 301) does not
avoid a sale by fi. fa. as to the rights of a debtor ;
but only as between a purchaser for value from
the debtor, and a purchaser from the Sheriff.
Therefore, where the official aseignee of a debtor
filed his bill against purchssers for value from the
Sheriff under a fi. fa. to set the sale aside, upon
the groimd that though the ^, fa. had hovn duly
serv^ on the Registrar, the entry of the transfer
had not been made within three mouths there-
after, the bill vras dismissed with costs. The
United Hand-in-Hand Co, v. National Bank (2
V. L. B. Eq., 206) followed. V. L. E., vol. 6,
E.88.



4 acres. It appeared that one Fiaber vras tb
owner of a Crown grant of 68 acres, wldck k
divided into 5 allotments, each of 13 acres 2 roods.
He sold the most southernly, lot 5, to one Perr?,
under whom the plaintiff claims ; and sold kt 4
to persons under whom the defendant dsiBL
In tact, the Crown grant which Fisher owud
contained 72 acres. Lots 1, 2, 3 and 4 bad tbdr
proper quantities, but lot 5 had four acree znoce
than the others, and more than the quantity mee-
tioned in the subdivision. The plaintiff obtsised
a conveyance of the 4 acres from Fisber'i
executors. The caveator's case was that tk
northern boundary of the grant was mispbeti
Issues six, on two only of which the jury fonad;
other four there was no evidence for or agam^

Percuriam : On the finding of the iury it ni
impossible for them to find a verdict for theplaic-
tiff or tor the defendant. The defendant ««
not entitled to the verdict, merely because tk
plaintiff had failed to prove his tiUe. The oc
must be reheard with amended issues. Biir
absolute. Cost to abide the event. N. S. W.
" Weekly Notes," vol. 2, p. 11.

First and Second Mortgagees. See



Bume V. Stewart, No, 28. ante.
Xgg. Foreclosure Suit — Greyr. Watm



Mortgages under the Transfer of Land Siat^



Online LibraryAustraliaThe land transfer laws of Australasia: being the full text with side notes ... → online text (page 78 of 83)