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SJcerrett — Real Propertjif Act, 1861 — Mortgage
— Duplicate Copies.'] — Under the Real Property
Act, 1861, a mortgage cannot be registered which
has not been executed in duplicate. S. A. R.,
vol. 2, p. 21.

173. Mortgage, Unregistered — Friehe



V. Cttllen and another — Real Propertu Acts, 1861,
1878— CatJC/i^.]— In February, 1872, 0. F., the
registered proprietor of certain land, under the
provisions of the Real Property Act, 1861,
deposited his certificate of title of such land with
his son, W. F., as security for a debt of £70 then
due by C. F. to W. F. In May, 1875, C. F.
mortgaged the same land, with other land, to D.
and E., but this mortga^je was never registered.
In February, 1879, C. F. executed a memo-
randum of transfer of the land in question to W.
F. D. and E. lodged a caveat with the Registrar-
General forbidding the registration of any instru-
ment affecting the land. W. F. thereupon took
out a summons calling upon D. and E. to show
cau^e why the caveat should not be removed.
W. F. at the time of taking the tmnsfor had no
notice of the unregistered mortgage : — Ileld, that
the unregistered mortgage was only binding on
C. F., and D. and E , the immediate parties
thereto, and not on W. F., and that the caveat
must be removed.

Semble : That even if W. F. had at the time of
taking the transfer had notice of the registered
mortgage, ho would not have been affected by it,
and would still have been entitled to have the
caveat removed. S. A. R., vol. 13, p. 35.

170. Mortgagee — J)g/anet/ v. Sandhurst
Building Society — In County Court — Title of
Plaintiff,] — A mortgagee having an absolute



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transfer by a certificate of title under the Tranefer
of Land Statute, with a defeasance in a separate
document, the two together constituting a mort-
gage, must, under Order 3, Rules 90 and 96, of
the County Court Bules, in suing for ejectment
in the County Court, state his title in the plaint
summons as mortgagee, and not as holder in fee.
4 V. L. R. (L.), 270. See al*o Harvey v. In£flu,
2S{a) t anU ; re Wm, Bigg»t 69, ante; Jonet
V. SellicJcj 78, ante i Regina t. Tideman, 99,
ante ; Van Damme v. Bloxam, 105, ante.

Mortgagee, Rent Demand. See re

O'Connell, Ho. 169, ante.

XOQ. Mortgagee*8 Rights — Eoss t. the
Victorian Permanent Building Society — Mori'
gagee holding mortgages under the general law
and under the Transfer of Land Statute — Notice
of Sale bg Mortgagee as to land under the Statute
— Exercise of several powers of sale over different
lands in one sale — Vendors and Purchasers — Sale
hy Agent — Open Contract.'] — This was a suit by
Ross againet the Victorian Permanent Building
Society to set aside a sale of cerain land that had
been mortgaged by the plainti:ff to the Society,
and by the Society sold to Mr. Rowan. The
plaintiff also claimed to be allowed to n deem the
mortgage on the land. The relevant facts are set
out at considerable length in the judgment. A.
L. T., vol. 4, p. 17. See also Bume v. Stewart,
No. 28, ante j Grey v. Watson, No. 152, ante.

Mortgagee's Sale See re Thompson and
Chipps, No. 27, ante.

Mortgages, Consolidation , ^ee Orey t.
Watson, No. 152, ante.

Mortgagor. See Jones t. Sellick, No, 78,
ante ; Hart v. Stratton, No. 119, ante.

Mortgagor and Mortgagee . See JPullen
Y, Thomson, No. 74, ante.



Mortgagor's Action. (See Action.)
Mortgagor's Agreement to Lease



(See



Agreement.)

Mortgagor's Legal Estate, ^ee re Ferguson
No. 127, ante.

Motion. See in re Kennedy, No. 23, ante.

Motion, Issues . See re Sellars, No, 82,
ante.

Multifariousness. Bqq Bank of Victoria y.
Rawlings, No, 52, ante.

Native Grantees. See ex parte Locke, No.
43, ante.



lai. Necessary Title — JfiZZ<y v. Morissey
— 7o Maintain — Begistered Proprietor under
Transfer of Land Statute, hut without legal
estate.'] — M., an uncertificated insolvent, became
lessee of an allotment under Part II. of the Land
Act, 1865. His official assignee was registered as
proprietor under a Judge's order, made under
sec. 118 of the Transfer of Land Statute, but not
under sec. 22 of the Land Act, 1865. The assignee
sold and transferred to the plaintiff, who obtained a
certificate of title, and had the transfer registered
under the Land Act, 1865. In ejectment by the
plaintiffs against M., phiintiff put in his certificate
of title, and also the Judge's order and lease, with
endorsement of registration of transfer under the
Land Act:— Held, that if plaintiff had rested hit
case merely on the certificate of title, he would
have succeeded, but that since he had chosen to
go further and produce exidence which showed
that he had not the legal estate, but that it was in
somebody else, he must be nonsuited. 2 V. B.
(L.), 193 ; 2 A. J. R., 115.



Negligence of Attorney. See re Davis
and Jones, No, 68, ante.



N.Z. Company. See Mudgway t. Davy ami
Butck, No, I, ante.



New Zealand Land Claims-

AUsworth and wife t. Berry — Statute of Limi'
tations (8^4, Will, 4, cap. 27) —Possession of
Crown — Possession Adverse to Crown — Ordinance^
ISbl—Statutory Title— Land Transfer Act,
1870.]— -Although a purchaser of land from the
New Zealand Land Company acquires, after in-
vestigation of his claim, a statutory right to call
on the Crown for a grant, he does not acquire a
statutory title to the land on which he can main-
tain ejectment. The Statute 3 & 4, WilL 4, cap.
27 (Statute of Limitations), does not apply to land
purchased from the New Zealand Land Company
until the issue of a Crown grant. Johns x.
Rivers (1) foUowed. N. Z. L. K., No. 1, 184.



Nominal Damages. See Christie amd
another v. Bowles, No, 129, ante.



103. Non-Delivery of Abstract of Title
— Davidson v. Brown — Land under Act No,
JOl.] — Upon a contract for the sale of land under
the Transfer of Land Statute (No. 301), a trans-
fer under the Act is all that the purchaser is
entitled to ; he cannot insist upon deliyery of an
abstract of title and copies of deeds and docu-
ments relating to the land in defendant*s poseet-
sion. 5 V. L. R. (L), 221 ; 1 A. L. T., 43.



Non-Joinder of Administrator . See
Saunders y. Cabot, No, 15, ante.

Nonsuit. Rule Nisi for . See Louch t. Ball,
No, d, ante.



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Notice. See Feaiherstone v. Sanlon, 4, ante:
Saunders v. Cabot ^ 16, ante; Chomley t. Fire-
brace 21, ante ; Coleman and another v. Eiria,
46, ante; Van Damme ▼. Bloxam^ 105, antes
Kirkham v, Julien, 109, ante ; Franklin t. Jin2,
156, a»te; O^^o Harbow Board r. Spedding^
165, a»^6 ; Shackell v. Lindsay ^ 174, a»^« ; i2o««
T. Victoria Permanent building Society, 180,

Notice, Breach of Trust. See National
Bank v. National Mortgage and Agency Co,

Nudum Pactum See Watson v. Watson,
No. 93, ante.



Objection to Title — Matthews y.

Jatnes — Requisition on the Title — What is
Transfer of Land Statute.'] — A Tendor eold land
as being under the Transfer of Land Statute.
Tiie conditions of sale treated the land as being
under the Statute, but contained a clause enabling
the Tendor to cancel the sale if the purchaser
should make or insist on "any objection to or
requisition on the title or otherwise which the
Tender shall be unable or unwilling to remoTe or
comply with." The land turned out not to be
under the Statute, and on the purchaser demand-
ing production of the certificate of title, in accord-
ance with the conditions of sale the Tender can-
celled the sale. On bill by the purchaser for
specific performance : —Held, that inasmuch as a
more secure title was giTen by a certificate than
under the general law, demanding the production
of the certificate of title was not an objection to
or requisition on the title so as to enable the
Tendor to rescind the sale. That the whole
system of the objections and requisitions was
based upon the production of a certificate of title,
and the words **or otherwise " in the conditions
did not include the demand for the certificate.
Specific performance decreed, and defendant
ordered to bring the land under the Statute. 8
V. L. R. (E), 188 ; 3 A. L. T., 146.



_ Objecti on toReglster Land.
Kerr, No. 6, ante.



See in re



Occupation . See Equitable Building Society
T. Boss, A'o. 140, ante.



Official Assignee.
150, ante.



See Giles t. Lesser, No.



Omission Registrar. Endorsement



Memo. See Oakden t. (Hbbs, No. 7, ante.

Onus of Proof. See re Doust, No. 38,
ante.



Open Contract.

No. 181, ante.



See Miller t. Morrissey,
Order. See re Feamley, No, 97, ante.



Order for Sale. See Neil t. Lindsay, No.
94, ante.



Order Obtainable In Chambers. See



re Battray, No. 73, ante.



13S. Order to Restrain Registration—

Sx parte \Broton — In re the Transfer of Land
Statute ex parte Bobert Brown — Transfer of
Land Statute (No. 301), sec. Z^— Caveat-
Adverse Possession.] — "Where the title of a
caveator is based upon adverse possession, the
Court will not grant an order under section 24 of
the Transfer of Land Statute (No. 301), restrain-
ing the Registrar of Titles from bringing the land
under the Act. Y. L. B., vol. 5, L. 5.



18Q. Parcels — Stevens t. Williams —
Transfer of Land Statute {No. 301), sections 47,
49 — Certificate of Title — Plan in Margin-^
Variance between plan with figured dimensions
and pegs upon the ground.] — In an action for
reooTery of land alleged to be encroached upon
the defendant's buil(Ung, the parcels of the plain-
tiff's certificate showed his land to be part of
allotment 2, and the plan thereon showed the
same, and also that allotment 1, between it and
the comer of a public street, was 66 feet in width,
and his endence showed that the defendant's wall
was upon 7 inches beyond such 66 feet. The
parcels of the defendant's certificate and plan
(prior in date to the plaintiff's) showed that her
land was part of allotment 1, but there are no
figures showing the distance between her land
and the comer of the said street, and her endence
showed that her wall was placed in a line with
the original allotment peg between the two allot-
ments, and that there nas a surplus in allotment
1 :— -lield, that as between the two certificates,
the position of the defendant's land was to be
ascertained by the original allotment peg, and that
she was entitled to the land in dispute. Y. L.
R., 12, p. 152. See also ex parte Bowdn^ 14,
ante ; Fis/ier t. Qaffney^ 102, ante \ Equitable
Building Society t. Boss, 140, ante.

Parties. See Biggs and another t. Water-
house, No. 62, ante.



Partnership . See Bank
Bawlings, No. 52, ante.



of Victoria t.



Part Performance. See Christie and
another v. Powles, No. 129, ante.



Payment. I nterest . See Burner. Stewart,
No. 28, ante.

Payment, Money. (See Undertaking.)



^Payment, Purchase Money. See Lange



I tT Budwolt^No. 143, ante.



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Payment, Rent. See MutUer t. Flayer,
Ho, 24, cmie ; Otago Harbour Board v. Spedding^
No. 165, ante.

Personalty. Liability of. See McCartney
T. Ketterson, No, 17, ante.

Petition . See re Vm. Biggs, No. 59, ante.

Plan. See Kirkham r. Carpenter, No, 111,
ante ; Stevens v. Williams, No. 186, ante.

PlalntlfTs Verdict. See Kirkham ▼. Car^
penter, No. Ill, ante.

Pleading. See Finnoran t. Weir, No. 136,
ante.

Possession. See Equitable Building Society
Y, Boss, No. 140, ante; Wadham y. Buttle and
others, No. 155, ante.



Possession Adverse to Crown. See

Allsworth T. Berry, No. 182, ante.

187. Possession, Demand of — Colonial
Bank V. Boacke — Ejectment — Transfer of Land
Statute, sec. 49.1— When R. had entered into
possession of land, under a contract made with a
person from whom those seeking to eject them-
selves derived title : — Held, that before they could
maintain ejectment, B. was entitled to a demand
of possession. A tenancy at will is ** an interest,"
within sec. 49 of the Transfer of Land Statute.
1 W.A'B. &W. L., 165; lA. J. R., 136. See
also Colonial Bank v. Sabbage, No. 126, ante.

X33. Possession. Interruption of—

Vieknall v. Hey manson— Adverse Possession.'] —
B. brought an action of ejectment, relying on a
certificate under Act No. 301. H. set up as a
defence adverse possession for more than fifteen
years. It was proved that S., a tenant of B.'s,
used the land fourteen years before action brought.
B. recovered a verdict. On rule nisi for a new
trial : — Held, that S.'s use might be of right or a
trespass, and it was open for jury to say in what
light they regarded it. Rule refused. 3 A. J.
K.. 22.

Possession of Certificate. See Neill v.
Adams, No. 130, ante.

Possession of Crown. See Allsworth y.
Berry, No. 182, ante.

Possession under Void Lease. See Otago
Harbour Board v. Spedding, No. 165, ante.

130. Possessory Title — Jgg James Valen-
tine Johnstone — In the matter of the claim of
James Valentine Johnstone to a grant of fifteen
perches of land fronting on Liverpool Street, in
the City of Hobart — daims to Grants of Land —



Jurisdiction."]— ^ILt. J, A. Jackson, who appeared
for the caveators, the Crown, and Joseph Clarke,
opened the caveator's case by stating that he wis
in a position to show that the statement made by
Smith as to the origin of his title was absolutdj
false, because in 1861 Mulcahey occupied tlie
property and paid rent to Conliffe, and when
Conliffe went to New Zealand continued to pav
rent to his wife. If the Court disbelieved Smith'!
evidence, there was then no evidence of Smitfa'i
title at all. Puttmg aside all this, when Smi^
was found in possession what was the character
of that possession ? He would be able to procoie
evidence to show that Smith had given a different
version of the matter to that which he had giveo
in his evidence — that Smith had said it ww
Clarke's property, but that Clarke had given it to
him. If Smith had a good property worth
several hundreds of poimds by the best of all
titles, a statutory or possessing title, why should
he sell it for £60, with a promise of £90, if ht
managed to bolster up a title in these pro-
ceedings ? If he could establish the all-important
point that the applicant had paid rent, it would
abolish the title set up, and the case rested upoa
the question whether he had paid rent or not
William Mulcahey deposed that he was a tenant
of the land in dispute in 1861, and paid rent to a
man named Conliffe. In 1862 Conliffe went to
New Zealand, and witness continued to pay reot
to Mrs. Conliffe. He left the property in 186S,
and it was more than a year after that before
Smith took it. Richard J. Rogers deposed Uist
in 1882 he waited upon Smith with regard to the
property, but could not make anything out of him.
On a subsequent occasion, Smith told him he paid
rent to Mr. Livingstone, who was the proper
gentleman. Witness did not know who Living-
stone was. William Brundlc deposed that he
was formerly a collector of the City of Hobart
rates, and always left the notice regarding this
property for Mr. Livingstone. After Livingstone
died. Smith always came and paid the rates per-
sonally. Richard Propsting deposed that he had
visited Smith at the request of Mr. EUislon in
1882. Smith said the property had been given to
him by Mr. Clarke, and he had never paid rent
to anybody. Mr. Dobson, in reply, contended that
there was nothing to disprove the fact that Smith
had remained in undisturbed possession, and
pointed out that there was documentary evidence
from CUrke himself that Smith was in possession
of the land and had paid rent to W. J. IT. Claiie
until January, 1874, but that was over twelve
years ago. The only question was whether they
had shown twelve years possession without paying
rent to this particular caveator, and he submitted
they had done so. If the caveator vested his
claim upon a mortgage, he had no standing in
that Court, as had been laid down ^ His Honor
Sir Wm. Dobson in July, 1883. He, therefore,
contended that the grant should be issued to
Johnstone, and inasmuch as his learned ft-iend
had no right to put them to this ezpensei knowing



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Clarke could not establish a claim, he should be
made to pay the costs of the case. The Acting
Chief Justice said in this case the applicant was
a purchaser from George Smith, who alleged that
he came into possession of the property in dispute
nearly thirty years ago under a tenancy at nrst,
and afterwiurds converted into a contract of sale,
from one Conliffe. Smith had admittod that the
contract for sale had never been carried out —
that was, that he had never paid the wiiole of the
purchase money he had agreed to pay. But he
said for more than twenty years he had never
paid any rent, and continued in possession of the
land without being called upon to pay any rent.
If this matter had come before the Court for the
first time, as to whether a man coming into
possession under circumstances like those had
acquired a title — there might be some difficulty
in coming to a decision, but by a long series of
decisions it had been held enough for an applicant
to show that he had been in possession for twenty
or twelve years, as the case might be. The Court
was of opinion that the applicant had established
the fact that he had been m possession for more
than twelve years without any payment of rent.
They found that in Mr. Clarke's application,
which was made a little less than two years ago,
it was stated that George Smith had occupied the
land under a mortgage which W. J. Clarke held
on the said land. It was obvious that had not
been proved. There was nothing to support that
statement, and a great deal to contradict it.
Then it was stated tiiat Smith paid rent to Clarke
up to his death in 1874, but that had not been
proved, and there was contradictory evidence that
no such rent had been paid. It had been sug-
gested that Smith paid rent to Livingstone, but
there was no real evidence in support of it. It
had only been proved that Smith had told some
person that he paid rent into the Bank for the
true owner. There was nothing to dispute the
evidence that Smith had been in possession of the
land for more than twelve years without payment
of rent. Therefore, an order would be given for
a grant to be made to the applicant Johnstone.
Begarding costs, the Court was not disposed to
make any order, leaving each party to pay their
own costs. His Honor Sir Henry Wrenfordsley
concurred in the judgment, and added that if,
according to the evidence of Propsting, Clarke
had full knowledge in 1884 tliat Smith held these
premises by adverse possession, it was a great pity
Clarke had not taken action to try and eject
him. See also Wctrner v. Dove^ No 37, ante.

Note. — This report was compiled and cour-
teously supplied by James White, Esq., Becorder
of Titles, Tasmania, for purposes of tnis publica-
tion, and in the absence of regular reports.

lOO. Postponement Decision, Com-
missioner's— JS^x^or^e Bovman— Transfer of
Land Statute (No. 801),««c. 135 — Circumetancee
wnder which the deeution of the Commurioner on
a title should be postponed instead of a certificate



reJ\tsed.']'-'Form of order where one ground of
objection is over-ruled, but the title has not yet
been investigated. *'No probable grounds for
refusal." Begistrar's costs. A. L. T., vol. 3,
p. 40.

Power of Attorney, Conveyance under .



(See Conveyance.)

Power of Sale. See Sume v. Stewart, No,
28, ante.



Power of Sale, Exercise of. See Buckett
V. Knohhe, No. 16^, ante; Ross v. Victoria
Building Society, No. 180, ante.

Powers, Registrar-General . See Pannan
V. Pannan, No, 16, ante.



Practice. See ex parte Bowan, 13, ante;
Saunders v. Cabot, 15, ante ; re David Le Cotnpte,
39, ante ; Bailey v. Chrisp, 64, ante ; ex parte
Feck, 59(c), ante; Saddington v. Rackett, 72,
ante; Finnoran v. Weir, 136, ante; Wilson v.
King, 166, ante.

Principal and Agent. See Barker v. Weld,
No. 31, ante.

Prior Grant. See Panman v. Pannan, No, 18,
ante.



Priority. See Mudgway v. Davy and Buick,
1, ante ; Sharpe v. JSadley, 3, ante ; ex parte
Baynes, 82(a), ante; Wildash v. Hutchison,
132, ante.



Priority. Registration. See Kissling v.
Mitchelson, No. 123, ante.



Priority, Unregistered Incumbrance.



See Patchell v. Maunselt, No, 113, ante.

Production of Deeds. See re Craig^ No.

ie, ante.

Promissory Note. See Davis v. Herbert,
No, 63, ante.

Proof of Title. See Delaney y. Sandhurst
Building Society, No, 179, ante.

Protection, Agreement to Lease. See

re Thompson and Chipps, No, 26, ante.

Protection. Leasehold Interest. (See
Caveat.)

lOl. Protection. Purchasers — Main v.
Robertson^Transfer of Land Statute, 1866 (No.
301), sec. 145.]— The object of sec. 145 of Act
No. 301 is to protect honest purchasers for value*
If they do so purchase, the certificate issued to
them is good even against the proper owner. If



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an owner ia depriTod of his land, Ua has a remedy
against the person who committed the iraud or
against the assurance fund. A. L. T., vol. 7, p.
127. See also Feaihersione ▼. Hanhn, No. 4,
ante.



Public Road.
ante.



Qeere Dr. O. Qtdnn, No. 40,



Purchase by Execution Creditor. See
Mastett T. Colonial Bank, No. 173, ante.

Purchase from Voluntary Settler. See
Colonial Sank y. Pye, No. 107, ante.

Purchaser without Notice. HeeMud^way
T. Davy and Buick, No, 1, ante.



Beath t. Anderson — Trantfer of Land
Statute {No. 301), sec. 106— 5ofc by Sheriff of
land under two writ^ — Notice to Registrar of
Titles — Rights of judgment creditors to purchase
money regulated by priority of lodging writ with
Shet-iff, irrespective of compliance with the pro-
visions of this section.'] — This was a special case,
having for its object the ascertainment whether
the plaintifls were entitled in priority te goods of
J. B. under a writ of fi. fa. issued to the Sheriff.
It was contended for plaintiff that haring issued
execution before Mrs. W., they could claim pay
ment of their debt in prioritjr to hfer, notwith
standing that she had first given notice to the
Begistrar of Titles that she had issued a fi. fa.
against J. B. The Court held that the plaintifib
were entitled to be paid their debt in priority to
Mrs. W., and gave judgment for the plaintifls.
A. L. T., vol. 4, p. 161. See also re McCarthy,
19, ante j Miller v. Morrissey, 181, ante.



Purchaser. Application by. (See Appli-
cation.)

Purchaser of Lease, Rights, and Lia-
bilities. See Kickham y. The Queen, No. 159,
ante.



Purchaser, Sheriffs Sale.
T. Maunsell, No. 113, ante.



See Patchell



Purchasing at Under Value. BeeKearton
y. Richardson, No. 125, ante.

Purchasing La^d without Enquiry. See
Saunders y. Cabot, No. 15, ante.



—Ratim



Rates — In re James Alexander Pond



- Rating Act, 1882, sees. 37 to AA^Land Trans-
fer Act, 1885— -iSa/tf of land for non-payment of
rates — Title from Public Trustee."] — Where a
conveyance is made by the Public Trustee of land
sold for non-payment of rates, under the powers
contained in tiie Bating Act, 1882, the pur-
chaser has an unimpeachable Parliamentary title
to the land, and may bring it under the proviaions



of the Land Transfer Act witliout being required
to supply evidence as to the validity of the sale.
N. Z. L. B., 1887, p. 254.

Rates Unpaid, See ex parte Iblk, No,
170, ante.



Real Estate Unad ministered.
Saunders v. Cabot, No. 15, <inte.



See



See



Reasonable Question of Title.
Regina v. Price, No. 162, ante.



ICHfc. Real Property Issues — Retht

ctpplication of John Eaton — Real Troperty—
Registrar- Qeneral— Sale of Land— Title to Land
—Issue of CerHfioate of TitU—2& Ttct., No. 14.]
— The Crown grantee of certain land sold it to •
purchaser, and gave possession of the land and
delivered the Crown grants to him. The veadon
received the purchase money, but no transfer of
the land was executed. Two years afterwards,
the vendors disappeared and were not afterwards
heard of. The purchaser continued in undis-
turbed possession of the land for twenty years
after the purchase, and then applied to the
Registrar-Ckneral to issue a certificate of title to
the land in his name : — Held, that the purchaser
was entitled to have the certificate of title issued :
— Held, also, that when a good prima facie title



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