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

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Joint Owner's Rights


317


Joint Proprietors


323


Joint Tenants ...


323


Judge Defined...


815, 316


Judge's Power, Caveat


344,345


Judge's Power, Production Deedt


319


Judicial Notice, Signatures...


316


Jurisdiction


356


Land Defined...


315, 316


Land Uuder Act, Provisions as to


321


List, Schedule ...


320


Lease, Endorsement of and Return


382


Leaseholds, Bringing under Act


381


Leaseholds, Registration of...


320


Leases


331


Leases in Triplicate


883,884


Lease, Surrender of


334


Lessees' Covenants


881,332



PAGE.

Lessees' Powers ... ... 356

Lessees Sub-letting ... ... 879

Lessor's Application ... 338. 334

Lessor's, Implied Powers ... ... 331

Letters of Administration, Production ... 340

LiabiUty, Purchasers ... ... 325

Licence, Revocation ... ... 376

Licence, Surveyor's ... 875, 876

Limitation of Actions ... ... 853

Lis Pendens, Effect of ... ... 385

List of Cancelled Certificates ... 386

Lodged Documents ... ... 382

Lodged Map ... ... ... 399

Lost Certificates ... ... 386

Lost Grants ... ... 848,849

Lost Registration Abstracts ... 346

Limatic's Rights ... ... 818

Map, Deposit of ... ... 849

Marriage, Female Proprietor 341, 342
Married Women, Acknowledgments 346, 347

Married Women, Certificate ... 318

Married Women, Status ... ... 328

Memorial, Contents of ... ... 401

Memorial Defined ... ... 322

Memorial, Entry of ... ... 322

Memorial of Easements ... 329, 373

Memorials Under Prior Acts 820, 321

Misdemeanours... ... ... 355

Moneys, Application of ... 337, 338

Mortgage, Demands Unsatisfied ... 383

Mortgage, Discharge of ... ... 339

Mortgaged Land, Title to ... ... 379

Mortgagee, First Duties of ... ... 383

Mortgagee, Powers Distress 336, 369

Mortgagee, Foreclosure by ... ... 369

Mortgagee, Liabilitv of ... ... 336

Mortgage of Lease,' Rights of 883, 334

Mortgigee, Sale by ... 394, 395

Mortgage Implied, Covenants in ... 336

Mortgages in Triplicate ... 383, 884

Mortgage, Operation of ... ... 334

Mortgage Money, Investment of ... 839

Mortgage Money, Payment of ... 339

Mortgages ... ... ... 334

Mortgage, Status of ... 886, 837

Mortgagor, Prohibition on ... ... 337

Mortgagor and Mortgagee ... ... 318

Municipality Powers as to ... ... 397

Nominee's Rights ... ... 320

No Survivorship ., ... 317

No Survivorship, Effect of . . . ... 323

Notice, Application ... ... 402

Notice Before Registering ... ... 348

Notice of Person Claiming ... ... 395

Notice, Effect of ... ... 323

Notice of Action ... ... 353

Notice of Appeal ... ... 374

Notice of Trusts, Entry of ... ... 322

Notice, Posted bv Title Claimant ... 395

Notice, Publication of ... ... 823

Notice, Revocation of Licence ... 876



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TICTOBIA — OENEBAL IJfDEX.



Ivii.



PAGE.

Notices, Service of ... 371, 372

Notice to Iiitereated Proprietors ... 376

Notification of 1880 Act ... ... 374

OatllB Administration ... ... 347

Oaths of Office ... ... ... 317

Occupier's Liabilitj Bent ... 335, 336

Officers Appointment ... ... 316

Officers LiabUitj ... ... 360

Officers Bemoval ... ... 316

Official Assignee, Notice Caveat ... 345
Old Roads. See " Roads "

Old Sub-divisions, ... 398,399

Order, Equity, Land Title ... ... 321

Order ol Court, Production of ... 340

Owners, Apportionment Amongst .. 397

Owners of Vested Estate, Rights of ... 317

Past Operation ... ... 314

Payment of Amount Recovered ... 353

Particulars, Dower Claims ... ... 373

Person Defined... ... 315, 316

Person of Unsound Mind ... ... 318

Plan, Registrar's Duty as to ... 384

Plan, Sub-divisional ... ... 399

Possession for fifteen years ... 881

Powers, Assistant Registrar ... 317

Powers of Attorney ... ... 343

Powers of Registrar ... 347, 348

Power of Sale, When Exercisable ... 383

Power to State a Case ... ... 347

Priority Instruments ... 321, 322, 380, 381

Probate, Production of ... ... 340

Presumption, Abandonment, Easement 397, 398

Procedure ... ... ... 334

Procedure, Registration Abstract ... 346

Production Deeds, Judge's Power as to... 3i9

Production of Documents ... ... 347

Production of Lease, When Dispensed with 381

Production of Will ... ... 340

Proof of Signature ... ... 343

Proprietor Defined . . . 315, 316, 341

Proprietor's Appomtment ... ... 397

Proprietor's Name, User of... ... 342

Proprietor's Notice to ... ... 395

Proprietor's Power, Summons Register... 350

Proprietor's Rights ... 327, 342
Proprietor's Rights, Amendment Certificate 376

Proprietor's Title to Certificate ... 323

Proprietor's Registered Proprietor 350, 361

Public Purposes, Grants ... ... 317

Publication of Notice ... ... 323

Purchase Money, Application of ... 335

Purchaser's Liability ... ... 325

FuTchaeer' 8 Protection ... ... 352

BeoeiptS for Grants ... ... 321

Record of Documents Retained ... 383

Recovery Assurance Fund Moneys ... 354

Recovery of Damages 352,353

Recovery of Possession, Lessor ... 333

Rectification Certificate ... 377, 396

Redemption, Rigbt of ... ... 369



Re-Eiitry Lease

Refusal to Deliver Certificate

Register Book ...

Registered Dealings

Registered Proprietor's Protection



PAGE.

400

349,396

321

318

350, 351



Registered Proprietor's Title Paramount 324, 325
Registrar ... ... ... 316

Registrar- General's Duty, Dower Claims 374
Registrar's Duty, Accounts Rendering ... 351
Registrar's Duty, Lodged Documents . . . 382
Registrar's Duty, Orders ... .. 342

Registrar's Duty, Payment of Money ... 351
Registrar's Duty, Plan ... ... 384

Registrar's Duty, Vesting Trust Estate... 372
Registrar's Power, Correction Errors ... 385
Registrar's Power, Duphcate Certificate. . . 396
Registrar's Powers ... 347,348

Registration Abstract ... ... 340

Registration, Certificate of ... ... 322

Registration, Easements ... ... 329

Registration, Evidence of ... ... 322

R egistration Fi. Fa. ... ... 402

Registration of Dealings ... 326,327

Registration of Subsequent Documents... 383
Registration of Survivor of Proprietors... 342
Registration, When Complete ... 321

Regulations, Power to Make ... 347

Rejection Instruments ... 395, 396

Rent, Liability lor ... 335,336

Removal. Officers ... ... 316

Remainderman ... ... ... 326

Rent, Tenant's Liability for 335, 336

Repeals ... ... 314,315

Repeal, Registration Act ... ... 322

Retained Documents ... ... 382

Rescission, Directions ... 371,372

Reversions ... ... ... 326

Reversioners ... ... ... 326

Rights, Exbting ... ... 317

Rights of, on Certificate ... ... 371

Rights of Appointees ... 317, 318

Rights of Fee Simple Owner ... 317

Rights of Owner of Vested Estate ... 818
Righ ts-of - Way ... ... 397, 398

RighU of Proprietors ... ... 342

Roads, Old ... ... ... 397

Sale, Conditions of ... ... 388

Sale, Power of ... ... 334,335

Sale, under Writ of Fieri-fadas 340, 341

Satisfaction of Annuity ... ... 339

Satisfaction of Judgment, Entry of ... 385

Scheme, Plan, &c., of ... ... 399

Seal of Office ... ... 384, 385

Seal, Official ... ... ... 316

Search Certificate ... ... 380

Seal, Corporation ... 339, 340

Searches ... ... ... 351

Service of notices ... 371,372,374

Setting Down Appeal ... 315, 316

Settlement Defined ... ... 316

Sheriff's Sale ... .. ... 8^6

Sheriff Defined... ... ... 315



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Lriii.



VICTOBIA— GENERAL IKDEX.





PAGE.




PAOB.


Signature, Proof




843


Title by Possession


378, 395


Signatures, Judicial Notice of




316


TiUe Deeds, Return of


381


Signature, Substitution for ...


*389,


340


Title Encroachments


898


Special Notices ...




395


Title, 5m** Certificate."




Specific Performance




324


Title to Excess of Land . . .


378


Specific Performance, Eyidence




324


Title to Land, Decree Equity


321


Statement Dower BighU ...




370


Title to Land, when Sufficient


369


Stay of Registration




380


Transfer Defined


327


Subdirision, Notice of




399


Transfer Indorsed, Efieot of


884


Sub-lease Implied, OoTenants of




380


Transfer, Statements in


883


Sub-lease, Eegistration of ...




379


Transferee's Duties


328, 329


Succession to Personal Estate




340


Transferee's Status


342


Succession, Words of Implied




329


Transfer of Lease, Implied Covenants


333


Sufficiency Title




821


Transferor's Indemnity


328, 329


Sufficient Description




869


Transfer


826, 327


Summons after Error, Certificate




349


Transfers by Trustees


372


Summons, Cost of


860,*'387


388


Transmission Defined


315, 316


Supreme Court Power, Certificate




351


Transmission


386


Supreme Court Power Rules




354


Trust Documents


322


Supreme Court Power Undeyised Free-




Trustee's Rights


317


holds ...


...


330


Trusts


322


Surrender Existing Grants ..


...


326






Surrender of Lease
Survey Boundaries
Survey, Expenses of


"399


334
397

,400


Undeyised Freeholds ...
Unsound Mind Persons


330
318


Survey of Land, Special


...


375






Surveyors' Licence


375,


376


Valuators ...


317


Suspension Proceedings, Caveat




319


Valuators, Sworn

Verification Survey

Vesting Order, Power to Make


317
875


Tenanoies in Tail




387


400


Tenant, Distress on


'335,


336






Tenant in Common


...


323


What Lands may be Brought under


Tenant in Tail, Rights of ...




387


Act


317, 318


Tenant's Liability, Rent ...


"335,


336


Will, Production of


340


Title Administrators


331.


332


Withdrawal Applications ...


319, 320


Title, Assurance of




320


Wrongful Retainer of Certificate


349



Index to Forms.



Acknowledgment

Amendment Certificate
Application for Search Certificate
Application for Stay of Registration
Application to Amend Certificate
Application to Bring Land under Act .
Application to Rectify Register
Appointment Curator as Administrator
Attesting Witness

Caveat Forbidding Land ...

Caveat Forbidding Registration

Certificate Ameudroent, See "Amendment

Certificate of Ackncvledgment

Ceitificate of Registrar

Certificate of Title

Charge, Form of

Coinmipslonor's Approval ...

Conditions of Sale

Creation of Right of Carriage Way

Curator, See " Appointment "



359

388
390
390
388
356



I Lease, Form of

j Lease, Transfer of. See '^Transfer "



369
366

358
366

359
866
337
363
402
391
359



Pees

Insurance, Short Form of



Leases Covenant, Short Form of
Mortgage, Form of
Mortgage, Trans icr of. See "Transfer *'
Notice Application
Notice Dower Abolition
Order For Stay of Registration
Power of Attorney
BeotifLcation Register...
Registration Abstract
Registration Caveat

Registration, Stay of. See " Application '
Search Certificate
Sub-leuse
Summons

Transfer of Land
Transfer of Lease, Mortgage, or Charge
Transfer, Endorsed
367,368,393 Transfer under ^. /a.

Transfer under Supreme Court Decree

363, 364 ! Way, Carriage, See "Creation"



360

360
863

402
874, 375

391
365, 36fi

356
366,367

366

357
389
367

358, 359
358

368,359
364
364



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ises.

NEW SOUTH WALES.



REAL PROPERTY ACT,



NO. 1-



Note. — The number following any case quoted at the end of a section will be found to
€orrespend with the same number in the Digest. The letters V. (Victoria) ;
S. CSouth Australia^ ; Q. (QueenslandJ ; Z. (New Zealand) ; T. (Tasmania),
followed by a number or numbers, refer to the respective Land Transfer Acts of the
Colonies above-named, and to the number of the section of such Act where there is
only one Act, or to the year and section of Acts where the original is followed
by a further Act or Acts, and all notes to sections will be found in italics or
other distinguishing type,



WHEREAS it is expedient to provide for the declaration Pr^mbie
of titles to land and to facilitate the transfer of land.
Be it theiefore enacted by the Queen's Most Excellent
Majesty by and with the advice and consent of the Legisla-
tive Council and Lesrislative Assembly of New South Wales
in Parliament assembled and by the authority of the same
as follows : —

Pbeliminart.

1. All laws statutes Acts ordinances rules regulations and practice Repeal of
whatsoever relating to freehold and other interests in land so far as incon- aSI°°'
siatent with the provisions of this Act are hereby repealed so far as regards

their application to land under the provisions of this Act or the bringing of
land under the operation of this Act.

2. This Act may be cited for all purposes as the "Real Property Short title
Act.'*

3. In the construction and for the purposes of this Act and in all in- interpreu-
struments purporting to be made or executed thereunder (if not inconsistent "**"
with the context and subject matter) the following terms in inverted commas

shall bear the respective meanings set against them :— LAND — Land mes-
suages tenements and hereditaments corporeal and incorporeal of every kind
and description or any estate or interest therein together with all paths
passages ways water-courses liberties privileges easements plantations gardens
mines mineralt* and quarries and all trees and timber thereon or thereunder
lying or being unless any such are specially excepted. (Z. 2 ; Q. 61-3 ; S.
3; T. 62-3; V. 66-4.) GJBANT— Any Crown grant of land. PEOPEIETOR
— Ajiy person seised or possessed of any freehold or other estate or interest
in land at law or in equity in possession in futurity or expectancy. (Z. 2 ;



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2 NEW SOUTH WALES EEAL PEOPERTY ACT—No. 1.

Q. 61-3 ; S. 180 ; T. 62-1 ; V. 66-3 ; 107.) TRANSFER—The passing of
any estate or interest in land under this Act whether for valuable considera-
tion or otherwise. (Q. 61-60 ; T. 62-3, Y. 66-59) TRANSMISSION—
The acquirement of title to or interest in land consequent on the death will
intestacy bankruptcy insolvency or marriage of a proprietor. (Q. 61-3 ; S.
3; V. 66-4.) MORTGAGEE— Any charge on land created merely for secur-
ing a debt. ( Ohomley v. Firebrace, 21 ; Burne v. Stewart, 28 ; Barker v. Weld,
31 ; Beg. v. Tideman, 99 ; Boss v. McNeil, 118 ; JBe Fergusson, 128. Q. 61-
107 ; T. 6-32-74.) MORTOAGOR— The proprietor of land or of any
estates or interest in land pledged as security for a debt. (Jones v. Sellick,
78 ; fJart v. Stratton, 119 ; Burne v. Stewart, 28. Q. 61-3 ; S. 3 ; T. 62 3.)
MORTGAGEE— The proprietor of a mortgage. ENCUMBRAN CE— Any
charge on land created for the purpose of securing the payment of an
annuity or sum of money other than a debt. ENCUMBRANCER— The
proprietor of any laud or of any estate or interest in land charged with any
annuity or sum of money other than a debt. ENCUMBRANCEE— The
proprietor of an encumbrance. (S. 3; Q. 61-3; T. 62-3; V. 66-4.)
LUNATIC— Any person who shall have been found to be a lunatic upon
inquiry by the Supreme Court or by any Judge thereof or upon a com-
mission of inquiry issuing out of the Supreme Court in the nature of a writ
de lunatico inquirendo. (S. 3 ; T. 62-3.) PERSON OF UNSOUND MIND
— Any person not an infant who not having been found to be a lunatic shall
be found upon like inquiry to be incapable from infirmity of mind to man-
age his own affairs. (Z. 18 ; T. 62-3 ; V. (56-176.) CONSULAR FFICER—
Consul- General Consul and Vice-Consul and any person for the time discharg-
ing the duties of Consul-General Consul or Vice-Consul. INSTRUMENT—
Any grant certificate of title conveyance assurance deed map plan will pro-
bate or exemplification of will or any other document in writing relating to
the transfer or other dealing with land or evidencing title thereto. SWORN
VALUATOR — Any person appointed by the Governor with the advice of
the Executive Council to value land under this Act. The describing any
person as a proprietor transferor transferee mortgagor mortgagee encum-
brancer encumbrancee lessor lessee or as a trustee or as seised or having
or taking any estate or interest in any land shall be deemed to include the
heirs executors administrators and assigns of such person. And generally
unless the contrary shall appear from the context whenever a form in any
Schedule hereto is directed to be used such direction shall apply equally to
any form to the like effect signed by the Registrar- General or stamped with
his seal or which for the same purpose may be authorised in conformity with
the provisions of this Act and any variation from any such form not being
in matter of substance shall not affect its validity or regularity but it may
be used with such alterations as the character of the parties or the circum-
stances of the case may render necessary. (Z. 32 ; Q. 61-3, 85-1 ; S. 3-98;
T. 62-3, 74-3 ; V. 66-34.)

PART I.

Appointmbnt Powees anb Functions of Employes.

offioeiS to ^' ^^^ Department of the Eegistrar-General shall be the department

perform authorised to carry into execution the provisions of this Act and the Itegis-
this Aot*^" trar-General and other officers and clerks of the said department at the time
of this Act coming into operation shall perform all the duties of their res-
pective offices under this Act.



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NEW SOXJTH WALES EEAL PEOPERTT ACT— No. 1. 3

5. The Governor with the'adyice of the Executive Council may appoint Appoint-
to the paid department such Deputy Registrars General and other officers BxMjinen
and clerks as may be necessary for carrying out the provisions of this Act of TiU««
and may likewise appoint two or more persons being barristers or solicitors oierks
to be "Examiners oi Titles'* hereinafter styled "Examiners" to advise
and assist in carrving oat the said provisions. (T. 62-6 ; V. 66-5, 8, 711 ; Z.
20-23 ; 8 13 ; Qr61-12.)

6* The Governor with the advice aforesaid may appoint three or more Appoint,
persons of whom the Eegistrar- General shall be one ex officio to be Com- gJJ^
missioners for investigating and dealing with applications for bringing land donon
under the provisions of this Act and for other purposes hereinafter appointed
The style of such Commissioners shall be "The Land Titles Commissioners"
hereinafter styled " Commissioners " The unofficial members shall be re-
munerated by fees specified in the Schedule hereunto marked P and at all
meetings two shaU form a quorum.

7. The Eegistrar- General shall have and use a seal of office bearing the ^'^•l'^*
impression of the Eoyal Arms of England and having inscribed in the mar- "^ ** ** *•
gin thereof the words " Eegiatrar-G^eneral New South Wales " and every
instrument bearing the imprint of such seal and purporting to be signed

or issued by the Eegistrar-General or by any Deputy Eegistrar-G^neral shall
be received in evidence and shall be deemed to be signed or issued by or
under the direction of the Begistrar-General without further proof unless
the contrary be shown.

8. Whenever by any law for the time being in force in the Colony any- Functions of
thing is appointed to be done by the Eegistrar-General the same may be SeSSSmr-
lawfully done by any Deputy Begistrar-General. (S. 18.) Oenermi

9. It shall not be lawful for any person whilst holding the .office of^^^*"
Examiner of Titles or of Land Titles Commissioner under this Act to engage mismonen
in private practice as a barrister or as an attorney or solicitor or be in part- ^^^p*^
nership with or employed by any attorney or solicitor. (S. lt> ; T. 62-93 ;

V. 66-12.)

10. The oath following shall be taken before one of the Judges of the <^^ <>'
Supreme Court by the persons at present holding the offices of Eegistrar- ^ ^
General or Deputy Eegistrar-General respectively and by every Eegistrar-
General and Deputy Eegistrar-General hereafter appointed before entering
upon the execution of his office under this Aot : — I A.B. do solemnly swear

that I will faithfully and to the best of my ability execute and perform the
office and duties of Eegistrar-General or Deputy Eegistrar-General for the
Colony of New South Wales So help me God. (Q. 61-6 ; T. 62-7; V. 66-
13.)

11. The Eegistrar-General may exercise the following powers that is ?°J*" **'
to say :— (I) He may require the proprietor or other person making appli- Toi"*^
cation to have any land brought under the provisions of this Act or the dooiments
proprietor or mortgagee or other person interested in any land under the
provisions of this Act in respect of which any transfer lease mortgage en-
cumbrance or other dealing or any release from any mortgage or encum-
brance is about to be transacted or in respect of which any transmission is

about tp be registered or registration abstracted granted under this Act to
produce any grant certificate of title conveyance deed mortgage lease will or
other instrument in his possession or within his control affecting such land



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4 NEW SOTITH WALES EEAL PEOPEETT ACT— No. 1.

(a) See see. OF the title tbereto. (a) (Pannan v. Fannan, 16 ] Fisher v. Stewart, 44. S. 220 ;

6^of4j Vic. 2. 205-218; Q. 61-11-1; T. 62-11; V. 85-30, 66-129-130.) (2) He may

summon any such proprietor mortgagee or other person as aforesaid to appear



andezftndiie ^^^ gi^o 8^7 explanation respecting such land or the instruments affecting
wiineeses the title thereto and if upon requisition in writing made by the Eegistrar-
General such proprietor mortgagee or other person refuses or neglects to
produce any such instrument or to allow the same to be inspected or refuses
or neglects to give any explanation which he is hereinbefore required to give
or knowingly misleads or deceives any person hereinbefore authorised to
demand an^ such explanation he shall for each such offence incur a penalty
not exceedmg one hundred pounds and the Eegistrar-Ghenerai if the instru-
ment or information so withheld appears to him material shall not be bound
to proceed with the bringing of such land under the provisions of this Act
or with the registration of such transfer or other dealing or with the issuing
of such regist^tion abstract as the case may be. {Be O'Brien^ 34. Q. 61-
Toadmims- 11-2; T. 62-11-26; V. 66-129.) (3) He may administer oaths or may take
tor oeth« a statutory declaration in lieu of administering an oath. (Z. 175-5 ; Q. 61-
11-8 ; T. 62-11-8 ; V. 66-29-1.) (4) He may upon such evidence as shall
appear to him and the Lands Titles Commissioners sufficient in that behalf
To correct correct errors in certificates of title or in the Segister Book or in entries
errors made therein respectively and may supply entries omitted to be made under
the provisions of this Act Provided always that in the correction of anv
such error he shall not erase or render illegible the original words and shall
affix the date on which such correction was made or entry supplied with his
initials and every certificate of title so corrected and every entry so corrected
or supplied shall have the like validity and effect as if such error had not
been made or such entry omitted except as regards any entry made in the
Register Book prior to the actual time of correcting the error or supplying
the omitted entry. (Chomley v. Mrehrace, 21 ; Bume v. Stewart, 28 ; Barker
V. Weld, 81 ; Be^. v Tideman, 99 ; Bo99 v. McNeil, 118 ; Be Ferguson, 127.
To enter Z. 68 ; Q. 61-11-4 ; S. 220-4 ; T. 62-11-4; V. 66-129.) (6) He maj enter
cftTeata cavoat ou behalf of any person who shall be under the disability of infancy
coverture lunacy unsoundness of mind or absence from the Colony on be-
half of Her Majesty Her Heirs or Successors to prohibit the transfer or
dealing with any land belonging or supposed to belong to anj such persona
as hereinbefore mentioned and also to prohibit the dealing with any land in
any case in which it shall appear to him that an error has been made by mis-
description of such land or otherwise in any certificate of title or other in-
strument or for the prevention of any fraud or improper dealing. {Be
Carroll, 61. See mU to See. 4, B. P. Act, 1878.)

PART 11.

FBOCsnuBE uf BBiiTGiNa Lajstd undeb the Fbovisions of this Act.

Land alien- ^ 12. AH waste lands and all lands set apart for public purposes remain-

fiwmtiie** ^^S unalionated from the Crown on the dav on which this Act shall come

(ht)wn after into operation shall when alienated in tee be subject to the provisions of

be^nbje^to this Act. The grants of such land shall be in duplicate and every suoh

iiijr*^' gra^iti^ addition to proper words of description shall contain a diagram of



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