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ally determined by the conduct of the parties,
and if he had now to give a decision as to the
costs, he should have arrived at a different opinion
to that of the learned judge, Mr. Justice Moles-
worth. The plaintiff had originally made the
mistake which led to the whole of this unfortunate
dispute, and he subsequently improperly refused
an offer by the defendant, which, so far as it was
reasonable, he ought to have accepted. The
plaintiff afterwards brought this suit, on which
he claimed more than he was entitled to ask for.
He, therefore, made repeated mistakes. The
defendant had, however, acted in a way which
could hardly be termed mistakes. He had proved,
or endeavoured to prove, and must be ti^en to
have succeeded in proving that he bought the
land, believing it to be the homestead-paddock.
It was necessary for him to endeavour to prove
that, in order to relieve himself from the charge
of having attempted to commit a fraud on the
plaintiff. But assuming that he believed he had
bought the homestead-paddock, he subsequently
acted in a manner wholly inconsi tent with that
belief. He asserted a right to the other land, he
removed fencing, and he obtained compensation
for part of the land taken by the G-ovemment.
He allowed the plaintiff to continue to improve
the homestead-paddock without making any ob-
jection. It was not till after several mouths that
he made any olain to the homestead-paddock. It
was difficult to reconcile that vnth plain and
honest dealing as between himself and the plain-
tiff, and if he (Mr. Justice Higinbotham) were at
liberty to deal with that conduct by awarding
costs against him, he should be disposed to do so.
But the rule appeared to be that where the Court
of Appeal decided against an appellant on every
question except that of costs, the Court would not
interfere with the discretion of the Court below
on the question of costs. The learned judge had
decided that the defendant was entitled to the
costs of the suit, and with that conclusion he could
not interfere, but he certainly thought that the
plaintiff should not have to pay the costs of the
appeal. Appeal dismissed without costs. A. L.
T., 1880, p. 60. See also Ashley v. Cooky No.
137, antes re Wm. Field, No, 69(b), cwte.

Intestate Real Estate. See re McCarthy,
No. 1», ante.

intestates. See Pannan v. Patman, No. 18,
ante.

Intrusion, Information of. See Mudgway
T. Davy and Buick, No, 1, anie.



X31> Issues. Divisibility of ~jr<Mtniw v.
Brycm.^ — Rules as to the divisibility of issues,
and distribution of costs, accordmg to the
finding of the jury, discussed (per Stephen,
C.J., in Chambers). The plaintiff, in an action
under the Real Property Act, complained
that defendant wrongfully sought to obtaui
a certificate of title to a piece of land of
which plaintiff averred that he was seized in fee,
or otherwise legally possessed. The defendant in
hib first and second pleas denied those allegations.
The jury found that plaintiff was entitled to only
a small portion of the laud, and the defendant to
the residue : — ^Held, that the issues thus raised
and found were divisible, and that judgment must
be entered according to the finding, and that on
those parts which were found for defendant he
waa entitled to costs, to be deducted from those
taxable to the plaintiff. Queere, as to the appli-
cability of the principle of tliis decision to pleas of
"not guilty " and *' not possessed '* in squatting
actions. The defendant, in a third and fourth
plea, set up title to the land in himself by sundry
conveyances derived from a Crown grant. In
this he failed ; but he succeeded in showing
possession, for twenty years and upwards, in the
grantee and others in whom he claimed, of that
portion of the land which the jury excluded from
plaintiff's claim : — Held, that as defendant had
failed to prove the title by conveyance which lie
set up, the third and fourth issues must be found
for the plaintiff ; but leave reserved to defen-
dant, on the question whether he had a title by
possession, to move to enter the verdict distribu-
tirely, according to the facts found. N. S. W. S.
C. R., vol. 10, p. 167. See also re Douit, No. 38,
ante ; re O'Brien, No. 84, ante.



__ Joint Tenancy. See ex parte Lock, No.
44, ante.



Judgment Creditor. See re H. C. Palmer,
No. 71, ante, aee also *' Rights."



Jurisdiction — Seyina t. Price, in re

Coleman — Resident Magittrates Act, 1867 —
Trespcus — Title to Land- — Seasonable Question
of Title— Title under Land Transfer Act.']-—
In an action of trespass in the Resident Magis-
trates Court, a simple denial of the plaintiff's
title is not sufficient to oust the jurisdiction.
Where a plaintiff sues in the Resident Magis-
trates Court for trespass to land, relying for hia
title upon a certificate of title issued under the
Land Transfer Act, 1870, the production by the
defendant of aoopy of theCrown grant which issued
originally in .her favour, and her denial of having
ever executed any conveyance, are not sufficient
to justify the Magirtrate in deciding that he has
no jurisdiction. N. Z. L. R., No. 1, 864. See
also re Wm. Biggs, 69, ante; re Chas,
Williamson, 66, ante; re Sort v. Pegus, 84,
ante ; Hodgson v. Hunter, 112, ante.



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Xea. Laches — Butler t. Saddle Hill



Mining Company and others — Specific Per
formance— Contract relating to Mining Property
— Land Transfer Act — Caveat.'] — Where a plain-
tiff seeks specific performance of an executory
contract relating to mining property, a brief delay
in asserting his rights will be uttal to his claim.
A caveat lodged under the Land Transfer Act
will not help a plaintiff who has lost his right
through laches. N. Z. L, R., No. 1, 296. 8ee
also Mudgwag y. Bavg and Buick^ No. 1, ante.



j.^yaB. Land Board, Sanction of — King
T. Stuart {District Land Registrar)— Land Act,
1885, sees. 65, 188— Lanrf Transfer Act— Mort-
gage of Leasehold — Necessity for.] — A mortgage
under the Land Transfer Act, 1885, of a lease
under the Land Act, 1885, is not a transfer of the
possession or occupation of the land leased within
the meaning of sec. 65 of the Land Act, 1865,
and does not therefore require the sanction of the
LandSoard.

Semble : That a mortgage under the Land
Transfer Act, 1885, does not of itself confer on
the mortgagee a right to possession of the land
mortgaged. N. Z. L. R., 1887, p. 304.

Landed Estate. See ex parte Finlay^ No.
55, ante,

leS. Landlord and Tenant — r^g Otago
Harbour Board t. Spedding — Lease in excess of
statutory powers — Possession taken under void
lease — Payment of Bent— Tenancy from year to
year — Effect of Unregistered Instrument — Land
Transfer Act, 1870, sec. 4&— Estoppel.]— Where,
by Statute, power is given to grant a lease for
twenty-one years, and a lease is granted for that
term with a right of perpetual renewal, such lease
is wholly void. When the lessee enters into
possession under such a void lease, and pays rent,
he becomes a tenant from year to year. Under
the Land Transfer Act, 1870, by the operation of
sec. 45, the mere execution of regirterable instru
ments transfers no interest in land, it m^^rely gives
a right in personam, and a lease not registered can
only take efftct as an agreement. The tenant is
not estopped from denying his liability under
such an instrument, and,

Semble, he would not be estopped, even if the
lease were registered. N. Z. L. R., Sup. Ct., vol.
4,272.

Land Order. See Mudgtoay v. Davy and
Buick, No. 1, ante.

Land Registrar's Duties. (See Duties.)



XOS (A). McDonald v. Bowe — Liability of
Mortgagee Exercising a Power of Sale in Con-
travention of the Terms of Transfer of Land
Statute as to Notice.] — The mortgagee in sudi a
case is liable to be charged with the value of the
land at the time of Uie sale, or at the time of
decree, at the mortgagor's option. 4 A. J.
R., 134.



Land Revenue Receipt. See Christie
and another v. Powles, No. 129, ante.

Land Trarisf er Morality. See re Thompson
and Chipps, No. 27, ante.



_ , Lease — ITtTiQit and King v. BrightUftg
—Land Transfer Act, 1870, sec. Gd— Liability
of Assignee — Practice — Costs.] — The 69th sectioa
of the Land Transfer Act, 1870 (1), does not
make the assignee of a lease liable for rent aocroed
due, nor for breaches of covenant, occurring aAer
his assignment. When, in amotion for judgment,
a smallar sum is asked for than that sought to be
recovered in the statement of claim, and the
plaintiff fails, coste will be allowed as on the
amount sued for. (1) Section 69 is as follows :—
A registered mortgage, a registered lease, or the
interest of a registered encumbrance, may be trans-
ferred to any person by memorandum of transfer
as aforesaid, or by an instrument in the form H
of the schedule hereto, which instrument may be
endorsed upon the memorandimi of mortgage!,
encumbrance or lease, and upon such memo-
randum of transfer or other instrument beio?
registered the estate or interest of the transfiaiff,
as set forth in such instrument, with all rights,
powers and privileges thereto belonging or apper-
taining, shaU pass to the transferee ; and sadi
transferee shall thereupon become subject to a»d
liable for all and every, the same requirements
and liabilities to which he would have been
subject and liable of, named in such instnmient
originally as mortgagee, encumbrancee, or Xeesee
of such land, estate or interest. Ct. App., N. Z.,
1885, p. 4.

107 Buchett v. Knobbe — Beat Property Act
of 1861 — Ejectment — Lease for Two Years.] —
In answer to action of ejectment by registered
proprietor of land under the Real Property Act,
1861, the defendant relied on an outstanding
lease for two years granted by the plaintiff, but
any lease for less than three years being incapable
of registration under the Act, this lease was n(^
notified on the register : — Held, following
Manning v. Crossman, that the plaintiff held the
land free from all encumbrances not notified on
the register, and was entitled to maintcdn eject-
ment. S. A. R., vol. 7, p. 147.

168. Buckett v. Knobbe— Beal Property
Act, 1861 — Ejectment — Lease for Two Years—
Begistration.] — A, the registered proprietor of
certain land under the provisions of the Real
Property Act, 1861, by a document in the fora
prescribed by the Act duly executed, but not
registered, purported to let the same to B. for
two years, with a right of purchase. B, subse-
quently became insolvent, but for some time after
his insolvency continued in poasesaion of the land



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and paid rent to A. In ejectment by A. against
B. : — Held, per Wearing, J., that the provisione
of the Real Property Act, 1S61, regulating the
making and registration of leases, do not apply to
leases for lees than three years, and such leases
can therefore be created as at common law orally
or by writing, and without registration. Per
Q-wynne, J., following Manning y, Cro**fwa«, that
a lease for less than three years of land under the
proTisions of the abore Act cannot be registered,
and cannot therefore be created, registration being
essential to erery dealing with any interest in
land under such Act : — Held, that a written
demise for less than three years of land under
the above Act is invalid unless in the form
prescribed by the Act and registered ; but entry
and payment of rent under such void demise
creates as at common law a tenancy from year to
year. That an oral denuse of land under the
aboTC Act for less than three years is good, but
the term thereby created is not assignable. S.
A. B., ToL 8, p. 86.

Lease and Right of Purchase. See re
Clark and Harvei/, No. 59(g), ante.

Lease by Mortgagor. See Sank of New
South Wales t. Falmer~No. 108, ante.

Lease, Corporation. See Bank of New
South JTales j. Palmer^ No. 108, ante ; Kirkham
T. Julien^ No. 109, ante.

Lease, Crown Lands. See ex parte
Elliott, No. 48, ante.

Lease, Extra. Statute . See Ota^o Harbour
Board v. Spedding^ No. 165, ante.

Leaseholds, Forfeiture. (See For-



Lien, Solicitor's Costs. See re Craig, No,
76, ante.



Limitation. See Featherstone v. Eanlon^ No,
4, ante.



Limitation. Action Assurance Fund.



See Mogle v, Qihbs^ No. 49, ante.



Limitation of Redemption. See Manning
y. Croseman, No. 128, ante.



Limitation, Statute of . See Mudgway x.
Davy and Buick, No. 1, ante.



felture )

Leaseholds, Sale of. See Souse t.
O'Farrell, No. 51, ante.

Lease, Purchase of from Sheriff . See
Umpherstone y. Wadham, No. 149, ante.

Lease, Surrender of. See Kearton v.
Richardson^ No.l25,ante,

Legal Estate. See Massett v. Colonial Bank,
No. 179, post.

Legal Estate. Title to. See Christie and
another y. Fowles, No. 129, ante; Miller t.
Stuart, No. 172, post.

Liability, Assignee. See Wilson v. King,
No, 166, ante.

Liability. Mortgagee. See Otago Harbour
Board y. Spedding, No, 166, ante.



Mandamus — Jgg O'Connell and the
Transfer of Land Statute — Transfer of Land
Statute, 1866 (No. 301), sec. \Z2— Circumstances
under which the Court will grant a mandamus
calling on the Registrar of Titles to call in a cer^
tijicate of titles or to give his reason for not doing
so."] — This was a rule nisi for a mandamus calling
on the Registrar of Titles to show cause why ho
should not giye his reasons for refusing to call in
a certificate granted to one 0*Ck>nnell for
land at Footscray, or why he should not call in
the certificate. Registrar was not satisfied, as
proyided by sec. 132 of the Transfer of Land
Statute, that the certificate had been issued m
error. Application refused on the ground that
it had not satisfactorily appeared to the Registrar
that the certificate had been issued in error or
that it contained a misdescription of the land or
had been fraudulently or wrongfully obtained.
A. L. T., yol. 6 p. 85.



Marketable Title. See Sharpe y. FLadley,
No. 3, ante.

170. Marriage with a Christian — Ex
parte Folk — When land is devised to A., with
provision that if she marry a Christian the land
shall go to B., the estate of A. ceases on the
happening of such marriage, although B. is
incapable of taking the gift over."] — This was an
application, under sec. 35 of the Transfer of Land
Statute, No. 301, to compel the Commissioner of
Titles to issue a certificate of title to a Mrs.
Deborah Folk as to certain land which slie
claimed under a will of her late fiither, Blias M.
Ellis. The Commissioner was willing to grant
the certificate, but wished to place a condition on
it that it was issued subject to a proyision in her
father's will that if she married a person who was
not a Jew the land was to fi[o to a grandchild of
the testator. Mrsl Folk had married a person
who was not a Jew, and the grandchild had died
leaying no representatiyes, both eyents occurring
in the lifetime of the testator. The Commissioner
of Titles was of opinion that Mrs. Folk's title to
the land ceased on her marriage, and that as the
grandchild was dead, there was an intestacy as to
the property, and that it went to the heir-at-law
or next of kin. On behalf of Mrs. Folk, it



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was submitted that the intent ion was that on her
marriage she should forfeit the estate for the
benefit of the grandson, but as he was dead and
could not take the property, it remained with her.
The Court were of opinion that the contention of
the Commissioner of Titles was right. It had
been contended during the argument that the will
showed no disposition to punish the daugliter
apart from benefiting the grandchild, but that
could not influence their decision. The estate
devised to the daughter was limited from its very
creation, and was defeated by the marriage of the
daughter, not by the gift over to the grandchild.
[The question had previously been before His
Honor Mr. Justice Molesworth on an application
under sec. 61 of the Statute of Trusts, and he
then decided that there was no intestacy and no
forfeiture, 1 A. L. T., 140.— Ed. A. L. T., 1880,
p. 77.]

171« Married Woman — /ji re PyJceti—
Practice— Land Transfer Act, 1885.]— Under
the Land IVansfer Act, 1885, it is not necessary
to promise the consent of the husband when
land is being transferred by a married woman to
a purchaser. N. Z. L. B., 1887, p. 442.

X7g. Material Fact — Jft/^gr t. Stewart-
Trustee — Tenant for Life — Memorandum — WTto
entitled to legal estate in land — Land Transfer
Actf 1885, sec. 145 — Costs.'] — A trustee of land
is not justified in bringing it under the provisions
of the Land Transfer Act in the name of the
tenant for life. A cestui que trust whose interest
in land is in remainder cannot demand to have
the land conveyed to him without the consent of
the tenant for life until his right to possession
arises. A trustee who, under a mistaken idea as
to his rights, attempts to part with the legal
estate in land to a person not entitled to it, will
not be allowed his costs of proceedings to restrain
him, but he will not be compelled to pay costs if
he successfully resists a claim to have it
transferred to the plaintiff. N. Z. L. R., 1887,
p. 830.



See Aubrey v. Scott^ No. 79,



Memorial.

ante.



Memorial of Ownership, See Manyakihia
V. N.Z. Timber Co., No. 100, a»te.

Merger. See Smith v. Davy, No. 135, ante.

Mining Property Contract. See Butler
V. Saddle Sill Mining Co.^ No. 163, ante.

_ 1T3' Ml sdescrj^ptlo n, App li cation ^-

Massett v. Colonial Bank of Australasia —
Transfer of Land Statute (No. 301), sec. 144—
]£rror or Misdescription in Application to be
Registered — Sheriff's Saiifi — Purchase by Exe-
cution Creditor.'] — On the issue of a fi. fa., the
execution creditor caused the Begistrar to be



served with a copy of the writ, specxfring the
land sought to be charged thereby ; by miitake,
a description of the land of another person of the
same name (also under the Act) being gtren.
Such land was sold to the execution creditor^ who
lodged a transfer from the Sheriff, and became
the registered proprietor, and afterwards sold the
land bon4 fide and for value to a third person, U>
whom the real proprietor, on his presenting faii
certificate of title, gave up possession wit hod
resistance : — ^Held, that on the registration of thii
copy-writ, &c., and of the subsequent Sheriff**
transfer, the certificate of the owner waa super-
seded and that he was deprived of his lands
consequence of error or misdescription in the
application, and was entitled to maintain an adka
under sec. 144 of the Transfer of Land Statute
(No. 301), against the execution creditor, not-
withstanding the subsequent sale bj the latter.
V. L. K.. vol. 7, L. 38(J.

Misrepresentation . See Hassett v. Colonial

Bank, No. 138, ante.

Mistake. See 56, and Oreen v. Watstm, 91,
ante; Jones v. Jones, 134, ante; George v,J.
M. P. Soc., 56 and 137, aate ; AsMeg v. Cooh,
160, ante.



Mistake In Area. See ex parte Sowam, Su.
13, ante.



IT-i:. Shackell v. Lindsay ^Transfer e/
Land Statute — Mortgage — Voluntary Conveyamee
— Notice — Costs.] — This was a suit by Mr.
Shackell, as assignee of the estate of BIr. P.
Graham, an insolvent, to set aside certain trans-
fers of land made by Graham as being void m
against the assignee. A. L. T., vol. 6, p. 118.

175. St. George {infants) v. BumeU and
another (trustees) — Trustees — Sale — Mortgage —
Beat Property Act, 1861.] — Where trustees under
a will sell land which they have no power to sell,
and on discovering their disability obtain a re-
conveyance, they cannot be charged with wilfW
default, although the land so improperly sold
and obtained back again has in the meantime been
brought under the Real Property Act. S. A. R.,
voL 5, p. 77. See also Chomley v. ISrebrace, 21,
ante; Burne v. Stewart, 28, ante; Barter r.
Weld, 31, ante ; Regina v. Tideman, 99, ante ;
Ross V. McNeil, 118, ante ; Manning v. Crou*
man, 128, ante.



Mortgage. Alteration after Execution.
(See Alxeraxlon.)

Mortgage Debt, Payment of . See
McCartney v. Kesterson, No. 17, ante,

1TB. Mortgage of Land —grgtg v. Wats<m
— Under Transfer of Land Statute (A^o. 301).
tecs. 84, 85, 98, 99.]— Where land is mortgaged



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under the Act No. 301, foreclosure is to be
sought under the proTisions of sees. 98 and 99,
and not in the old way by a suit in equity.
7 V. L. R. (E), 79, 84 ; 8 A. L. T., 13.

Mortgage of Leasehold. See Kinff t.
Stewart, No, 164, ante.

Mortgage. Memo of. See JelUcoe t.
Wellington Loan Co,, No. 50, ante.

X77. Mortgage Money, Default in Pa y-
ment of — £x parte Hassall and another.'] —
The 55th section of the Real Property Act pro-
vides that in c^se default be made in payment of
the principal or interest on a mortgage registered
under the Act, and such defietult be continued for
one month, the mortgagee may gire the mort-
gagor a written notice to pay the money due.
And section 55 enacts that if such default in
payment continues for the further space of one
month, the mortgagee may sell the land, and by
section 67 it is provided that, ** upon proof to his
satisfaction by statutory declaration that such
default has been made and continues as aforesaid,
the Registrar-General shall register any memo-
randum or instrument of transfer executed by a
mortgagee, &c." : — Held (Stephen, O.J., dis-
sentiente), that under the 57th section the
Registrar-General is entitled to require proof of
the default having continued up to the time
of sale. Before Stephen, G.J., Hargrave, J.,
and Cheeke, J. Section referred to . — Section
55 : ** In case default be made in the payment of
the principal sum, interest, &c., or any part
thereof thereby secured, and such default be con-
tinued for the space of one calendar month, the
mortgagee may give to the mortgagor notice in
writing to pay the money then due or owing on
such memorandum of mortgage, and that sale
will be effected imless such default be remedied."
Section 56 : ** After such default in payment for
tlie further space of one calendar month from the
service of such notice, such mortgagee is hereby
authorised and empowered to sell tlie land so
mortgaged, or nv part thereof, and all the estate
and interest i. leiu of the mortgagor, and either
altogether or in lot?, by public auction or by
private contract, or both such modes of sale, and
subject to such conditions as he may think fit,
and to buy in and re-scll the same, without being
liable for any loss occasioned thereby, and to
make and execute all such instruments as shall
be necessary for effecting the sale thereof; all
which sales, contracts, matters, and things hereby
authorised, shall be as valid and effectual as if the
mortgagor had made, done, or executed the same ;
and the receipt or receipts in writing of the mort-
gagee shall be a sufficient discharge to the pur-
chaser of such land, estate, or interest, or any
portion thereof, for so much of his purchase
money as may be thereby expressed to be received ;
and no such purchaser shall be concerned to en-
quire as to the fact of any default or notice having
been made or given as aforesaid \ and the pur-



chase money to arise from the sale of any such
land, estate or interest, shall be applied, first, in
payment of the expenses occasioned by such sale ;
secondly, in payment of the moneys which may
then be due or owing to the mortgagee ; thirdly,
in payment of subsequent mortgages in order of
priority, and the surplus, if any, shall be paid to
the mortgagor." Section 57 : " Upon proof to
his satisfaction by statutory declaration that such
default has been made and continues as aforesaid,
the Registrar-General shall register any memo-
randum or instrument of transfer executed by a
mortgagee for the purpose of such sale as afore-
said; and upon such registration the estate or
interest of the mortgagor, as therein described to
be conveyed, shall pass to and vest in the pur-
chaser, freed and discharged from all liability on
account of such mortgage, or of any mortgage
registered subsequent thereto ; and if such memo-
randum of transfer purports to pass an estate of
freehold in possession, not being a life leasehold,
the purchaser shall be entitled to receive a cer-
tificate of title for the same." N. S. W. S. C. R.,
vol. 10, p. 292.

X77 (A). Mortgage ReglstratJon —^e



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