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cannot he consolidated — A Mortgage under ^
Transfer of Land Statute cannot maintain a nB
for foreclosure — Status of Mortgcyor and Mori-
gagee—Costs,']—JL L. T., vol. 3, p. 13.



133.



Figured Dimensions.
Carpenter, No. Ill, ante.



See Kirkham v.



IBl. Findings of Jury ^Jones v. Sill—
Seal Property Issues — Verdict for Defendant
set aside.'] — The plaintiff applied to bring 17
acres 2 roods of land at Botany under the Real
Property Act. Defendant entered a caveat as to



Forfeiture — Ettershank v. Tht

Queen—Land ^c*, 1862 {No. 145), *cc». 21,22,
36.126; 1865 {No. 237), *ecv. 7, 13, 14; 1869
{No. 360), sec. lOl— Leases— Belief— Waiver-
Transfer of Land Statute — Specific Petform^et
of Obligation to issue Orant-in-fee.] — Under the
joint operation of the Land Acts (No. 145 sad
No. 237), selectors obtained leases from tie
Crown, registered under the Transfer of Land
Statute, containing covenants for payment of rtitti
and for effecting the prescribed improvemail*,
with the right of re-entry in defatdt. They cW
not effect the improvements, and let the rent isll
in arrear, but rent had been received on behalf of
the Crown after the report of an Inspector thsi
the improvements had not been effected witliin
the prescribed time. £. and G., the petitionef!
in two suits for specific perfoimanoe of the f^-
gation to issue a grant-in-fee, obtained assign-
ments of the leases. In E.'s case the assignment
was from an attorney under power of the sdectcff;
a declaration of forfeiture had been gaaettcd,
before the issue of the lease, before the Land hf^
1869, and before the assignment ; but £. b>d
taken the assignment after taking a promise of
the Minister of Lands that the lease should isne
on payment of arrears of rent, and the lfl8«
issued* accordingly in tJie name of the selector,
and was ante-dated. E. registered the assign-



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ment, and obtained a oertiflcaie of title under the
Transfer of Land Statute. In G-.'s case the lease
issued to the selector, and was assi^pied bj him to
Q-., who also obtained a certificate of title. The
declaration of forfeiture in his case was gazetted
between the passing and the date assigned for the
coming into operation of Land Act, 1869 (No.
360) -.—Held, per Molesworth, J., that the Court
might relieve from forfeiture for non-payment of
rent, but could not do so for the breach of cove-
nant to improve ; that the Crown could forfeit
such leases without actual re-entry, and that the
election to forfeit could be shown sufficiently by
bringing ejectment or by a declaration in the
Oovemment Gazette ; that leaving the land un-
improved after the time prescribed for improving
had elapsed, did not constitute a continuing
breach of covenant ; that the subsequent receipt
of rent by the Crown waived the forfeiture, and
that it was not necessary to show that the officer
who received the rent was personally aware of the
previous forfeiture, provided the forfeiture was
known to the Crown s agents in the matter ; that
the declaration which appeared, subsequently to
the forfeiture, in the Government Gazette did
not revive that forfeiture, but might be referred
to the non-payment of rent, from which, there-
fore, the Court could relieve ; that sec. 101 of the
Land Act, 1869 (No. 360), as to evidence of for-
feiture, did not apply to a lease which was not
issued till after the coming into operation of that
Act, but was ante- dated to a period prior to the
Act (quere, whether it applied to a forfeiture
gazetted between the passing and coming into
operation of the Act) ; that the actual issue of
the lease completely waived all previous breaches
of its conditions ; that promises of a Minister do
not bind the Crown, and the issue of a grant-in-
fee directed to be made to 0-., on payment of
arrears of rent, with interest at 8 per cent., E.'s
title from his assignor being doubtful on the
ground that he had proved no conveyance from,
or dealing with him, and bad not proved that he
was alive at the time of the conveyance from his
attorney under power, his petition was dismissed.
Upon appeal : — Held, that E. was entitled to a
grant, as under sec. 37 of the Transfer of Land
Statute (No. 301), the memorial of transfer upon
the duplicate lease was conclusive evidence that
he was entitled thereto ; and that the decree in
both cases should be for the issue of a grant in
fee-simple upon payment of arrears of rent, with
interest at 8 per cent., and the amount of the
penalty for not improving : — Held, also, that the
obligation to make improvements within the time
prescribed by the Act was a personal one, and did
not run with the land ; that the forfeiture was
incurred by the terms of the lease, and not by the
Act No. 145 (Land Act, 1862), otherwise relief
couH not have been granted ; that sec. 101 of the
Land Act, 1869 (No. 360), does not apply to
leases in the name of the Crown under Land Act,
1862, and that the obligation to issue a grant in
fee-simple sufficiently arose out of a contract



within sec. 27 of the Crown Bemediee and Lia-
biUties Statute, 1866, to warrant a decree for
specific performance. On appeal to the Privy
Council : — Held, affirming the decision of the
Supreme Court, that having regard to sec. 22 of
the Land Act, 1862, the forfeiture was capable of
being waived, and was waived by the subsequent
acceptance of rent and issuing of the lease to B.*8
assignor ; that although such lease was, under
sec. 11 of the above Act, dated before the for-
feiture occurred, it operated to affirm the tenancy,
of which it waived the forfeiture, and also affirmed
all interests springing therefrom, including the
right to a grant-in-fee. In any case, even had
there been no waiver, the lessee in possession was
entitled, both under the Act and the terms of the
lease, to relief in equity against the forfeiture for
non-payment of rent, and to a decree for specific
performance, upon proper terms, of the statutory
contract. Ettershank v. The Queen, 4 A. J. R.,
11, 56, 132 ; Glass v. The Queen, 4 A. J. R., 17,
67, 133. On appeal to the Privy Council, L. B.,
6, P. C, 364, 376 :— Held, also, that the clauns
arose o:it of contracts with the Crown within the
meaning of sec. 27 of the Crown Bemedies and
Liabilities Statute, 1865, since the right to the
grant-in-fee, though a creation of the Land Acts,
IS conferred upon the holder of a lease, as a statu-
tory right annexed to the lease, and an implied
term of the contract. Ibid.

Held, also, that the non-fulfilment of the
obligation to improve so far as it depends on the
Land Acts does not avoid the lease, but merely
renders the lessee liable to pay a penalty. And
so far as the obligations to improve and pay rent,
and the liability to forfeiture depend on the lease,
any breach of these obligations would render the
lease voidable only, and not void. L. B. 6, P.
C. 364, 368. See also FUher v. Gaffkey, No. 102,
ante.



Forfeiture Lease. See Kiekham v. The
Queen, No. 47, ante.

Forged Conveyance. See Coleman and
Clark y, Riria, No. 46, ante.



Forgery. See Bailey v. Christie, 54, ante;
Regtna v. Tideman, 99, ante; Saunders t.
Cabot, 16, ante.

Fraud. See Chomley v. Firebrace, 21, ante ;



Wiggins (app.) v. HammiU {resp.), 8^ ante;
George v. Australian Mutual Provident, 56, ante ;
Mall r. Mall, 98, ante ; Colonial Bank v. Pie,
107, ante ; Jones v. Jones, 134, ante ; Finnoran
V. JTeir, 136, ante.



XS4b. Fraud, Asserting Title Falsely—
Stoekdale v. Mamilton and another.^ — The
declaration framed under the 23rd section of the
Beal Property Act, by a person who had entered
a caveat, complained that the defendants put him
unjustifiably to expense, by fiEdsely asserting title



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to certain land, and endeaToaring to procure a
certificate of title thereto, notwithstanding the
fact that he was seized and entitled as they well
knew. Then, after stating the lodgment of his
caveat, and that notice of this suit had heen duly
giren, the declaration alleged that the plaintiff
had instituted it in order to establish his title,
and to obtain an order restraining the Begistrar-
Gbneral from proceeding further in the matter :
— Held, on demurrer, that the action is maintain-
able, and in its present form. The defendants
pleaded, first, that the plaintiff never was, nor is
he now, seized in fee-simple in the land in ques-
tion ; secondlj, that he was not now in possession
of the said land : — Held, good on demurrer. A
third plea alleged that the defendants were the
persons in whom the fee-simple of tlie land was
vested in possession at law or in equity, and were
jointly seized of the fee-simple in the land,
wherefore they made application to the Registrar-
General, and did declare that the fee-simple was
so vested, and that they were jointly so seized,
and did carry on proceedings for bringing the
land imder the provisions of the Eeal Property
Act, and to obtain a grant of a certificate of title
under the Act : — Held, bad on demurrer, for not
stating whether their title was legal or equitable.
A fourth plea, traversing the defendantV know-
ledge of the plamtifi^'s title also held bad. N. S.
W. S. C. R., vol. 5, p. 80.

XSS. Wadham v. Buttle and others— Real
Property Act, 1861 — Certificate of Title^Fraud
— Possession — Ejectment.'] — In ejectment the
plaintiff relied on a certificate of title under the
provisions of the Real Property Act, 1861. The
defendants set up that they had been in possession
of the land comprised in the certificate of title for
more than twenty years. The issue put to the
jury was whether the defendants had established
the fact of such possession: — Held, that there
must be a new trial, on the ground that the real
question at issue was not whether the defendants
had been in possession for more than twenty
vears, but whether the certificate of title had not
been obtained by fraud, the defendants having
been in possession of the land at the time of the
granting of the certificate of title, and the declara-
tion on which that certificate was granted having
falsely alleged that there was no person in
adverse possession of the land . 8. A. R., vol . 13,

p. 11.

XSO. Franklin v. Ind and others—Real
Property Act, 1861 {sec. IM)— Adverse Posses-
sion — Unregistered Instrument — Fraud — JHotice.']
— F. T. and E. T., being proprietors in fee-simple
of land not under the provisions of the Real Pro-
perty Act, on March 20th, 1882, by an agreement
in vrriting, let the land to F. for five years from
March 25th, 1882. At the time of the agreemen t
F. was in occupation under a lease prior in date
to the agreement, and after the agreement still
remained in such occupation. On May 12th,



1882, F. and E. T., sold the land by auction toC.
M. and A. In the advertisement in the newt-
papers announcing the sale, and of which slips
were handed about at the auction, and in the oo&-
ditions of sale signed by M. as one of the pur-
chasers, it ¥ras stated that the land waa «M
subject to an agreement for lease for five yean
from March 25th, 1882, at a rental of £130 %
year. C. M. and A. paid the purcliase mooej,
and requested the vendors to apply to bring ti
land under tho Real Property Act, and to bare
the certificate of title issued to the purchaseri.
This was accordingly done. The application wi»
prepared and certiiBed correct by L., a licenwi
land broker, who was acting as agent in tk
matter for the vendors. The application w»s
signed by E. T., and by L., as attorney for E. T.
It made no mention of F.*s agreement, and coc-
tained a declaration by the applicants that thej
were not aware of any mortgage, encumbrance or
claim affecting the land, or that any person \&i
any cl»im, estate or interest therein, and that
there was no person in possession or occnpatios
of the land adversely to their estate or interetf
therein, and that the land was then occupied br
F., and that there were no deeds or instrumenti
of title affecting tlie land in their poese^on ff
under their control other than those enumerated
in the schedule to the application. F.'a agree-
ment was not mentioned in the schedule. L. «»
aware of the agreement to lease to F., and bad a
counterpart of same in his possession when the
declaration was made. A certificate of title wai
issued to C. M. and A. on September 8th* 1882,
containing no reference to F.'s agreement. Chi
July Ist, 1882, F. paid a quarter's rent, due ia
June, to M. On September 14th, 1882, C. M.
and A. transferred the land for value to I^ A.
S. and B., who, on the same day, mortgaged mns
to S. S. acted as agent for I., A. S. and B., m.
puirchasing the land and obtaining the transfiBr.
I. and S. both knew of F.'s agreement before the
purchase. B. N., one of the defendants, knowing
of F.'s agreement, and having been told by L
that be was unable to effect a sisUe on account o£
it, paid off the mortgage to 8. on December 5tk,
1882, and took a mortgage from the other defeQ*
dants, I., A. S. and B. The transfer and mort-
gages respectively contained no reference to F.'s
agreement. F., who had remained in occupatioa
of the land, brought an action against I., A. S.,
B. and B. K. fur an injunction or order restrun-
ing dealings by them with the land unless subject
to his agreement. On the trial before Boucaxtt,
J., His Honor made a decree in favour of the
plaintiff, declaring the original certificate of title
and the second certificate of title fraudulent and
void as against F.,and that B. N.'s mortgage wai
subject to F.'s agreement. On appeal by the
defendant, B. N. :— Held, percuriam (1), that the
words " adversely in actual occupation " in sec
134> of the Real Property Act, 1861, mean
adversely to the certificate of title ; (2) that F. wi»
in actual occupation adversely to the certificate, at



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the time of the iasue of the first and second cer-
tificates respectively, and was rightfully entitled
to the land, and that each certificate was therefore
Toid as against F. under sec. 134. Per Boucant,
J. : (a) That it was fraud on the part of E. T.
and F. T., and of 0. M. and A., to obtain a clean
certificate of title, and on the part of C. M. and
A. to execute a transfer of the land without men-
tioning F.'fi interest; (h) that I. had express
notice of this fraud and participated in it, so far
as the purchase by himself and his co-purchasers
was concerned ; (c) that although G. M. and A.
had not the actual fraudulent design to deprive
F. of his property, I. had such design ; (rf) that
sec. 40 of the Real Property Act of 1861 has no
operation whereror there is fraud ; (e) that I.
was protected by sec. 114 of the Real Property
Act only as against the knowledge that F.'s
interest was in eiistence, and was not protected
against his knowledge ot and participation in the
fraud ; iff) that B. N., knowing that the land was
brought under the Act by a false and f:audul*jut
declaration, and knowing sufficient of I.*s fraud
to make him a participator in it, was not a mort-
gagee bona fide, but a mortgagee mala fide, and
was therefore not protected by sec. 126. S. A.
R., Tol. 17, p. 133.

Fraud, Certificate. (See Certificate.)



1ST. Fraud, Constructive Notice of—



Cullen V. Thomson— Sect. 49 and 60, Tramfer of
Land Statute — Innocent purchaser not affected hy
constructive notice of fraud of conveying party
in acquiring a title.'] — This was a bill filed by
James Cullen against James William Thomson
and John GI-. Johnson for the redemption of some
land. Mr. Webb, Q.C., with Mr. Topp, appeared
for the plaintiff. Mr. A'Beckett for Johnson.
Thomson put in an answer, but did not appear at
the hearing. Cullen was previously the registered
proprietor of a piece of land in King William
street, Fitzroy, and wanting a loan of £30 for
three months, he applied to Thomson, who agreed
to lend him it on the security of the certificate of
title. He induced Cullen to sign a document
which Cullen supposed to be a seciuity for the
£30, but it was really an assignment of his title.
Armed with this, Thomson got himself registered,
and obtained a certificate of title as proprietor.
He then mortgaged the land to Johnson for
£400. Cullen endeavoured to pay off the £30
when it became due, but Thomson put him off* by
various evasive answers until Cullen, on searching
the Registry Office, found that a fraud had been
committed. The premises were in the possession of
a weekly tenant of Cullen, and had since re-
mained so. Johnson pleaded that he was a pur-
chaser for valuable consideration, without notice
of fraud. His Honor, on a subsequent day,
deUvered judgment. Irrespective of the Transfer
of Land Statute, Johnson would have been
deemed to have received notice that the land was
in the possession of a tenant paying rent to the



plaintifi*, and through that of the defect of
Thomson's title. But Johnson was protected
against this kind of constructive notice by sec. 50
of Transfer of Land Statute, and the mortgage
was therefore good as regarded him. The whole
po icy of the Act would be frustrated if the words
in sees. 49 and 50, *' except in the case of fraud,"
was held to .mean or include fraud of the convey-
ing party in acquuring a title. He would direct
accounts to be taken of what was due to Johnson
on account of the mortgage of 12th July, 1878,
and that Thomson pay the aoiount thereof ; that
on payment of it and interest within six months
of the Master's certificate by the plaintiff or
Thomson, and of bis costs of suit, Johnson should
execute a memorandum of discharge of the mort«
gage ; that in the event of the plaintiff paying the
debt and 30sts, Thomson shall foHhwith repay
him, deducting the sum of £30 ; and t^at
Thomson shall pay the plaintiff his costs of
the suit. Decree accordingly. A. L. T., 1879,
p. 15.

Frau d , Obtaining Certificate. See Bi^ys
and another v. Waterhouse, No, 58, ante.

Fraud on Execution Creditor. See
Colonial Bank v. Pie, No, 107, ante.

Fraud, Personation. See Fotheringham v.
Archer, Ao. 10, ante.

Fra udulent Application. See Brady v.
Brady, No. 75, ante.

Fraudulent Preference . See WUdash v.
Hutchison, No. 132, ante.

Fraudulent Purchaser. (See Decree.)

Good Title. See Eagles v. Blaine, No, 30,
ante.

Heirs and Assigns. See re Knapman^ No.
41, ante,

Heretaunga Block. See re Nelson Bros,^
^o, 36, ante.

Illegitimacy. See Warner v. Dove, No, 37,

ante.

Impeachment Certificate. (See Evi-



dence.)

Implication. See Sharpe v. Hadley, No. 8,
ante.

Implied Covenant Powers. BeeBucknaU
V. Beid, No. 145, ante.

Improper Admission Evidence. (See
Admission.)



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Improper Sale. Land, FI. Fa. Q^ITassett
T. Colonial Bank, No. 188, ante.

Inaccurate Survey. See Sharpe y. Hadley,
No, 8, ante.



Incumbrances, Noting.
Pennington, No. 64, ante.



See ex parte



Infant — Hall t. Loder — Croum
Land* Alienation Act, 1861 — Selection in name
of Infant Son—Sesulting Trust— Certificate
under Real Property Act (26 Vict., No, 9) not
conclusive in equity where registered proprietor
affected hy a personal equity,] — In 1870, E. H.
oonditionallj purchased 60 acres of land in the
name of bis son, F. H., the plaintiff, then an
infant six yean old. In 1875, this selection, with
seyeral others, was sold to the defendant, the
notification of transfer being signed by the plain-
tiff, then eleven years old. Afterwards, and
before the plaintiff came of age, the defendant
obtained a Crown grant and a certificate of title
under the Beal Property Act. The plaintiff, on
coming of age, repudiated the transfer : — Held,
that the plaintiff had a personal equity against
the defendant, and that he had a right to c^l on
the defendant for a transfer : — Meld, also, that
there was no resulting trust to the &ther.
Obseryations of Manning, J., on Stephen y.
StaUworthy withdrawn :— Held, further, that the
fact of the defendant haying obtained a certificate
under the Beal Property Act was no bar to the
plaintiff's right to establish his equity. Sempell
y. Jarvis (2) foUowed. N. S. W. L. R., vol. 7,
p. 44. See also St, George y. Burnett, No, 67,
ante.

Injunction, Application. See Warner y.
Dove, No, 87, ante.

Injunction, Registering. See Hodgson y.
Hunter, No, 112, ante.



Insufficiency. Acknowledgment. See



Injunction, Right to ^Kiclkham y.
The Queen — With the provisions of this section."]
-—The purchaser at a Sberifi*s sale of a lease under
the Land Act, 1869, is entitled, on payment of
oyerdue rent before entry by the Crown for non-
payment^ to obtain an injunction restraining the
Crown from proceeding for a forfeiture. A. L.
T., yol. 4, p. 37.



Innocent Purchaser.
Thomson, No. 157, ante.



See Cullen y.



t« re Kerr, No. 6, ante,
IgQ. Interest on Purchase Money-



Insolvency. See Wildash y. Hutchison,
No, 182, ante.

Inspection Documents. (See Applica-
tion.)

Instrument. See Cuihhertson y. Swann, No,
l4A,anU,



Ashley y. Cooke— Unilateral Mistake— l^roug
Land Advertised and Sold — Defendant not com-
pelled to take the other land — Costs.^ — This
was an appeal from Mr. Justice Molesworth.
The plaintiff had owned two allotments of land at
Daylesford, one known as the bush-paddock and
the other as the homestead-paddock. He m-
structed an auctioneer, Mr. Patterson, to seU one
of the allotments. He intended to sell the bush-
paddock, but by some mistake the other allotoient
was adyertised. The defendant purchased at the
sale, and obtained a transfer of the homestesd-
paddock. The plaintiff, howeyer, remained m
poesebsion of the property for about a year, when
the defendant took steps to eject him. Plaintiif
then filed the bill to have the mistake rectified,
and to haye the homestead-paddock re-conyeyed
to him, and to compel the defendant to take tbe
other allotment. Mr. Justice Molesworth decided
that a mistake had been made, but the plaintiff
was chiefly answerable for it, and he therefore
directed him, on obtaining a re-transfer of the
homestead-paddock, to repay the defendant the
amount paid for the purchase money, with
interest, and also to pay the costs of the suit, and
refused to order defendant to take the other allot-
ment. Mr. A*Beckett for plaintiff ; Mr. Holioyd,
Q.C., and Mr. Topp, for respondent. The Clu^
Justice said that the plaintiff owned two pieces of
land — one known as the bush-paddock, the other
as the home-paddock, the latter the moreyaloable
of the two. He desired to sell the bush-paddock,
but by mistake he sold the other one, and the
defendant became the purchaser of it. The mis-
take was afterwards discovered, and the plaintiff
filed the bill to compel the defendant to accept
the inferior allotment, and return the more valu-
able. The defendant alleged that he had really
purchased the other allotment, although at a price
considerably under its yalue. Assuming his
statement to be true, howeyer, the defendant con-
ducted himself in a way that aroused serious
doubts as to whether it was correct. The Court
decreed that the oonyeyance by the plaintiff to
the defendant of the more yaluable piece should
be set aside, that the defendant should receire
back the purchase money, with interest, and also
the costs of the suit. The suit as framed by the
plaintiff had not been sustained, and he asked for
more than he was entitled to in praying that the
defendant should be ordered to take the buah-
paddock. The question, however, remained
whether the defendant should be allowed intereet
on the purchase money he had paid. That
depended on whether the defendant had derived
any benefit from the land. In one sense he did
not derive any benefit from it, as he did not
occupy it. But he had received compensation
from the GK)yemment for a portion of the land
that had been taken, and he hiul removed oextun



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fencing. However, the faots as proved were not
sufficient to justify this Court in mterfering with
the conclusion already arriyed at. The defen-
dant, however, acted in such a way as to justify
the plaintiff in coming to ask the opinion of the
Court on the case, and in dismissing the appeal,
therefore, no costs would be given. Mr. JTustioe
Barry concurred. Mr. Justice Higinbotham said
that the question of the costs of a suit was gener-



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