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to land is established, such as the Court would
compel a purchaser to take, a certificate of title
ouglit to issue. Q. L. B., 1879, p. 9. See also
Jones T. Sill, No. 151, ante.

Real Property Act. Scope of. See
Jfleatherstone v. Manlon, No. 4, ante.

Real Property Act of South Australia .
See Feathersione v. Manlon, No. 4, ante.



Recalling Certificate. See ex parU the
Mutual Trust Co., No. 117, ante.



Re-Entry. Right of. See BucknaUr.Reid,
No. 145, ante.



Re-Entry, Tender Rent Before, See
Kickham y.The Queen, No. 47, ante.



Reference re Purchase. See Colcmal
Bank v. Pye, No. 107, ante.



Refusal Evidence, Title, Easement.



See Jones v. Park, No. 81, ante.



Refusal to Register. See ex parte Bowman,
No. 2, ante.



Refusal to State Orounds . Bee ex parts
the Mutual Trust Co., No. 117, ante.

Beglstered Holder. * Aee re Ferguson, No.
127, ante.



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BEG]



DIGEST OP CASES.



[BBS



Registered Proprietor. See Fannan v.
Fannan, 16, ante,' Jones v, Jones, 184, ante;
Finnoran v. Weir^ 136, ante; Hall v. Loder,
158, aiito.

Registered Proprietor, Estate Para-



mount. See Massett y. Colomal Bank, Ifo.
188, ante.

Registered Proprietor's Liability. See
MaddisoH v. McCarthy, No, 88, ante.



Registered Proprietor's Necessary
Title. See Miller y. Morrissey, No, 181, ante,

log. Registered Proprietor's Interest.
Sheriffs Sale of— Eohertson y. Keith — Trans-



fer of Land Statute— Certiiicats of Title
Adverse Possession."] — The defendant bought, at
a Sheriff's sale, the estate and interest of W.,
registered proprietor of iand under the Transfer
of Land Statute. Part of the land had been
preyiously sold hy W. to the plaintiff, who was in
possession, and before, and at the sale, gaye the
defendant express notice of his interest. The
defendant became registered proprietor of the
allotment under a transfer by tne Sheriff, and
brought an action of ejectment against the plain-
tiff. On the bill to restrain proceedings in eject-
ment, and to constitute the plaintiff registered
proprietor of the land in his possession : — Held,
that his interest was that of a tenant within the
meaning of sec. 49 of the Statute, and decree
made as prayed. Obsenrations made upon the
terms " aidyerse possession " and '* fraud " in that
** section." 1 W. I. A'B. & W. Eq., 11 ; 1 A. J.
B., 14.



Registrar as Receiver.

y. jyAlbiydhill, No. 82, ante.



See lyAlbrydhiU



Registrar-Genera l. See Biyys and another
y. Waterhouse, 68, ante; re John Eaton, 194,
ante.

Registrar's Duty. Applications. See ex
parte Bond^ No, 90, ante. See also " Applica-
tions."

Registrar's Duty. Validity . See Umpher-
stone Y, Wadham, No. 149, ante.

Registration. See Mudgway y. Davy and
Buick, 1, ante; Barker y. Weld, 31, ante; re
Beatlie, 58, ante ; Bailey y. Chrisp, 64, ante ;
re Woods, 95, ante; Buckett y. Knobbe,16S,
ante.

Registration, Restraint of. See re
Battray, No, 78, ante.

Registration, Transfer. See Kickham y.
The Queen, 47, ante ;' Mc&lone y. Registrar of
Tiiles,141, ante.



Regulations. See ex parte Bond, No. 89,



ante.



Relief. See Ettershank y. The Queen, No.



158, ante.

Remainderman . See MUler y. StewaH,
No, 172, ante.

Removal, Caveat. See re Dams Jones,
No, 68, ante.

Rent. Demand of. See re (TConnell, No.



169, ante.

Rents and Profits. See D'Albrydhill y.
D'Albrydhill, No, 82, ante.

lOB. Requisition on the TltXe -^Mattheu^s
y. James — Objection to the Title — What is
Transfer of Land Statute ? ] — A yendor sold
land as being under the Transfer of Land Statute.
The conditions of sale treated the land as being
under the Statute, but contained a clause enabling
the yendor to cancel the date if the purchaser
should make and insist on " any objection to or
requisition on the title or otherwise, which the
yendor shall be unable or unwilling to remoye or
comply with." The land turned out not to be
under the Statute, and on the purchaser demand-
ing production of the certincate of title, in
accordance with the conditions of sale, the yendor
cancelled the sale. On bill by the purchaser for
specific performance: — Held, that inasmuch as
a more secure title was giyen by a certificate than
under the general law, demanding the production
of the certificate of titie was not an objection to
or requisition on the title, so as to enable the
yendor 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 Y. L. B.
(E.), 188 ; 8 A. L. T., 146. See also Sharpe y.
Madley, 8, ante; Matthews y. James, 184,
ante.



Rescission Contract.
EadUy, No. 8, ante.



See Sharpe y.



lOT. Reserve. Sale o^ — /» re Miller^
The Land Transfer Act-Deserve shown on
deposited plan — Right of proprietor to sell
reserve."] — A registered proprietor of land who
lays out a township and deposits a plan thereof
in the District Lands Begistry on which an allot-
ment is shown as a reserye, does not lose his right
to sell the allotment so long as no specific purpose
for the reserve is stated, and it does
that it was held out by way of inducement to the
purchasers of other aUotmenti to buy.



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DIGEST OP CASES.



[SET



Semble : Had tlie allotment been reserred for
lome Bpecific public purpose, the purchaaers of
the other allotments would hate gained rights in
respect of it, and the proprietor could not in such
a case use it except for the purpose for which it
was reserved. N. Z. L. B., 1887, p. 199.

lOB. Restraining Regi8trar ~JZ<? Thomas
H, Power,'] — A Judge in Chambers has no juris-
diction upon summons \o make an order under
the Act No. 301, sec. 24, restraining the Registrar
from bringing the land under the Act. To
obtain su(£ an order the caveator must either
bring an action or file a bill. W. W. & A'B. Bep.,
vol. 6, p. L. 81.

Restraint, Assignee's Title. See Kickham



V. The Queen



:, Asslgr



ante.



Restraint, Forfeiture .
^he Queen, I^o. 47, ante.



SaOO. Right to Bring Land under tta

Act — Jie application of John Benn and MidkSi
Orice— Transfer of Land Statute, see. 17, «J-
secs. 1 and 5 — Trustees of fee'simple wither
power of sale.'] — Trustees in fee of land set
having power of sale, are owners within t^
meaning of sec. 17, sub-sec 1, and entitled b
bring laud under the operation of the Sta^k.
V. L. B., 12, p. 866.

Rights. Judgment Creditors. See £esA
V. Anderson, No. 192, ante.

Road. Public. See re Dr. O. Qminn, JT*

40, ante.



Rule In Shelley's Case. See re Chriiik



Restraint . Registrar. See Summers ex
parte Aylwin, No. 62, ante.

Resulting Trust. See EaU ?. Loder^ No.
158, ante.



and others v. £owles, 129, ante; ex parte JTW/u,
205,i»o*<.

See Kickham t. Rule.Servlce . See re J. B. Slack, 35, ants;
re Knapman, 41, ante.

Sale. See St. George v. Burnett, 176, amU;
re John Baton, 194, ante ; Boss t. Victoria Fer-
manent Building Society, 180, ante.



Re-Transfer.
ante.



See Ashley y. Cook, No. 157,



Right of Entry. See Mangakahia y. N.Z.
Timber Co., No. 100, ante.

lee. Righ ts of Way -~yn^A.i and another
v. the Corporation of Adelaide— Seal Property
Act, X^Ql'-Certiflcate of Title— Transfer.] -
A certificate of title under the provisions of the
Beal Property Act, 1861, is no evidence of title to
rights of way endorsed tiiereon. A person claim-
ing rights of way over land under the provisions
of the above Act, must prove a transfer of such
rights from the registered proprietor of the
servient tenementi and such transfer must be
registered on the certificate of title of the trans-
feror and semble of the transferee also. Plaintiffs,
in an action for obstruction of their right-of-way,
produced as evidence of their title a certificate of
title under the provisions of the above Act, which
certified that they were registered as proprietors
of certain land, together with a right-of-way over
certain other land not comprised in their certifi-
cate : — Held, that the above certificate of title was
not evidence of the plaintiff^s title to the right-of-
way; and, per Gwynne, J. (Way, OJ., and
Boncant, J., dissentientibus), that the certificate
of title, inasmuch as it certified that which was
unwarranted, was wholly invalid, not only as to
the right-of-way, but also as to the whole of the
land comprised in such certificate. S. A. B., vol
14, p. 144. See also re Wm. Field, 59(b), ante ';
Jones y. Park, 87, ante.



Sale by Agent, jj.



Sale by Sheriff. See Kickham t. Tit
Queen, 47, ante-, re William JTadkamt, 114,
ante,' Giles v. Lesser, 150, anie: Masseti v.
Colonial Bank, 173, ante.

Sale, Exercise of Powers of BeeMiUer



V. Morrissey, No. 181, ante.
Bale. Notice of. See Bouse v. O^Farrell,



61, ante ; Miller v. Morrissey, 181, ante.
Scire Facias . See Mudgway v. Zksty ami



Buick, No. 1, ante.

Selection In Name of Infant Son.
See Ball v. Loder, No. 158, ante.

g01» Separate Rules —jforrwMt^ ui re
the estate of— Land under Transfer of Land
Statute.] — There is nothing in the Transfer of
Land Statute forbidding a separate motion as to
land imder the Act, and such an application wDl
be granted, although not necessary, at the risk of
the administrator as to costs, for the costs of an
unnecessary motion will not be allowed in passmg
an administrator's accounts. Morrison, 3 W.
W. & A*B. (I. E. & M.), 84.



Settlement.
127, ante.



See Manning y. Grossman, No.



Settling Issues.
ante.



See re Sellars, No. 32,



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SHE]



DIGEST OE CISES.



[STA



SherifTs Sale ~/» the matter of a

caveat by Alfred Bosquet ^ and in the matter of
the Real Propertij Acts, 1861 and 1878— ff^aZ
JPropertif Act, 1861 — Real Property Act Amend'
ment Act, 1878, sees. 41 and 67 — Fieri Facias —
Unregistered Transfer.^ — The transferee under
an uDregistered transfer from the registered pro-
prietor of land under the Real Property Acts is
the equitable owner of the land, besides haring,
under sec. 67 of the Act of 1878, a right or claim
to be registered as proprietor. The Sheriff, under
a writ of venditioni exponas, has only power to
sell the debtor's beneficial interest, and the rights
of other beneficiares antecedent to the registration
of the writ of fi. fa. will be protected on proper
proceedings being taken, at any time before the
registration of the transfer from the Sheriff. On
January 10th, 1883, L. executed a transfer of
land under the Eeal Property Act, 1861, to B.,
but the same was not registered. On February
16th, 1883, a writ of fieri facias, issued on a
judgment against L., was lodged with the
Registrar- Q-eneral and registered. The Sherifi*
afterwards sold to B. T., and executed a transfer
to him :~Held, that B.*s unregistered transfer
took precedence of the unregistered transfer by
the Sherifi*, and that B. was entitled to hare his
transfer registered. S. A. R., vol. 17, p. 173.
See also ^eill v. Adams, 130, ante; Beath v.
Anderson, 192, ante; Robertson v. Keith, 196,
ante.



Specific Relief. See re Thompson and



Chipps, Nos. 26 and 70, ante.



Solicitor,
ante.



See Barker v. Weld, No, 31,



Solicitor and Client .
brace, No. 21, ante.



See Chomley v. JVre-



Sollcltor, Costs of. (See Costs.)



a03. Specific



g04;. Splitting Case — Munro v. Suther^
land— Plaintiff *s Title.^—A plaintiff does not
split his case by relying on his certificate of title,
and afterwards bringing forward evidence to rebut
a case made by the defendant that the certificate
is subject to the defendant's occupation, by virtue
of the provisions of the Transfer of Land Statute
or of the Mining Statute, 1865, since the plain-
tiff does not by his rebutting evidence attempt to
improve the case he had made by the production
of his certificate, but answers the case put forward
by the defendant. 4 A. J. R., 166.

Standing Over. See re Kennedy, No, 23,



ante.



See Kirkham v.



Starting Point, Survey.
Carpenter, No, 111, ante.



Status of Mortgage rand Mortgagee.



See G-rey v. Watson, No, 152, ante,
gOS. Status of Non-Rule In Shelley's



Case — Fx parte kViUis and others.\ — A testator

nis



Performance — Colechin

V. Wade — Voluntary — 27 Eliz., cap, 4
VolwUeer holding a certificate ftnder Transfer of
Land Statute (No. 301)— JB'y a Purchaser.']'—

A. was owner of land and brought it under No.
301, the certificate of title being issued to his son

B. Nine months afterwards, A. contracted to
sell it to C. 0. filed a bill for specific perform-
ance, and to have issue of certificate to B. declared
void as against him : — Held, that the transaction
was void as against 0. under 27 Eliz., cap. 4, and
that it was not protected under sees. 49 and 50,
the protection afforded under those sections being
intended for real purchasers under the Act, and
persons dealing with them, not to sons taking
presents from their fathers. Specific perform-
ance decreed. 3 V. L. R. (E.), 266. See also
re Thompson and Chipps, 27, ante ; Oeorge v.
Australian Mutual Provident Society, 66, ante ;
Van Damme v. Bloxam, 105, ante ; Ashley v.
Cook, 137, ante ; Fttershank v. The Queen, 158,
ante; Butler t. Saddle Sill Mining Company,
163, ante.



devised and bequeathed to trustees liis real and
personal estate, to hold the same upon trust to
pay his debts j and, in case the personal estate
should be insufficient, he authorised the trustees
and their heirs to sell such part of the real estate
as should be necessary for that purpose ; also,
upon trust, to let for the best rent such parts of
the real estate as should not be sold, until the
testator's son should attain the age of twenty-one
years. The testator directed that the rents of the
real estate, or so much as should be necessary,
was to be applied towards the maintenance of Lis
son until he should have attained twenty-one
years of age, and then the trustees were to hold
the land upon trust, to permit and suffer the son
to enter upon, occupy, and enjoy the said real
estate, and receive and take the rents and profits
thereof, during the term of his natural life, to and
for his own proper use and benefit. Testator
til en declared that the son should have power to
let the real estate for any term not exceeding
twenty-one years, and upon the son's death the
testator devised the real estate as follows: —
" Unto the heirs of the body of him, my said son,
lawfully to be begotten, whether male or female,
share and share alike, as tenants in common (if
more than one) , and to their several and res-
pective heirs and assigns for ever." And the
trustees were directed to convey, assure, transfer,
and pay the same to them, him, or her, accord-
ingly : — Held, that the legal estate was in the
trustees until the son attained the age of twenty-
one years. Upon the son attaining that age, he
took the legal estate in all the land then unsold ;
and, upon the death of the son, the legal estate
passed at once by operation of law to the heirs of
his body ; also :— Held, aa both limitationB were



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DIGEST OP CASES.



[SUM



legal, the rule in Shelley's case applied, and the
estate of the son was one of inheritance : — Held,
also, per Sir James Martin, C.J. (following
Je9»on T. Wright t 2 Bligh, 1), that in a derise
such as this, the words, after the words " hein* of
the hodf," muit be rejected as being repugnant
to the estate, which those words properly and
technically created -.—Held, also, per Hargraye,
J. (following Doe, d, Cowper v. JKcAr», 7 T. R.,
433), that clear words of derise in a will cannot
be cut down by subsequent ambiguous words.
V. L. R., Tol. 12, p. 312.

Statute of Frauds. See Christie and
another y. Fowles, 129, ante; re Strong, 218,
pott.

Statutory Title. See Davidson v. Brown,
No. 182, ante.

Subject to Mortgage. See ex parte



IHnlayt No, 55, ante.



I. Substitution. Names — Be Brodziak
— Real Property Act further Amendment Act of
1877, 41 Vict, 'No. 18, sec. 4— Substituting name
of new caveator for that of his trustee in an
issue.2 — The Court has power to substitute the
name of a new caveator for that of the original
one, but will only do so upon terms, and in this
case on costs of motion being paid, and on giving
security for costs already incurred in Irwin y.
Brodziak before taking out order. N. S. W. L.
R., yol. 2, p. 805.

gOT. "Such" Certificate — JTg parte
Registrar- General in re De Lissa and Coleman —
Real Property Act, sees. 92, 126 — Wrongfully
Retained.} — Summons under the Real Property
Act (26 Vict., No. 9, sec. 126), by the Registrar-
General, calling upon W. T. C. to deliver up a
certificate of title of an equity of redemption,
issued to Anna M. C. (the registered owner) , and
alleged to be wrongfully retained byW. T. C.
The land, which is situated at Narribri, was sold
in November, 1883, by the Sheriff, under a writ
of fi. fa., and bought by Be Lissa, to whom the
Sheriff executed a transfer of the equity of
redemption. The Registrar-General, however,
refused to register the transfer unless the certifi-
cate of title was produced ; but W. T. C. refused
to produce it, on the ground that he had purchased
the property from bis mother, Anna M. 0.,
previous to the sale by the Sheriff, by an un-
registered contract, and had also paid off the
amount which was due to the Bank by his mother
under a mortgage ; and, further, that on payment
af the mortgage money the Bank had given him
the certificate of title. The registered mortgage
declared that the Bank should hold the certificate
while the security continued. The discharge was
not ;pegistered. His Honor said he was of opinion
.t^t the 126th section of the Act did not apply
^to a case of this sort. There was no contention



that this certificate had been issued in error, or
that it contained a misdescription of land or
boundaries, or that it had been fraudulently or
wrongfully obtained or retained ; and, there/ore,
the Registrar-Q^neral could not call upon
Coleman to produce it, so that, to use the words
of the 126th section, it could be ** canodled or
corrected." Here there was nothing to correct
and when they looked at the whole section, it was
perfectly plain that it was intended to meet cases
of certificates or indorsements issued in fraud or
error, in which case there would be a cancellation
or correction. That was not what was asked for
here, and what was asked for could only be
decided by a Court of Equity. The Act did not
make the Registrar judge as to who was entitled
to a certificate that had been properly issued.
As he was at present advised, the proper course
would be for Mr. Be Lissa to file a claim question-
ing this transaction, and asking for such steps to
be taken as would give him a title. Applicatioo
dismissed. N. S. W. " Weekly Notes," 1, p. 132.

Summons. See re Thompsonand Chipps, 70
ante; re Wm. Wadham, 114, ante^

g03» Summons, Caveator — Ex parte
Davies and Inman — Iransfer of Land Statute
{No. SOI), sec. 117— Caveat— Right to summons
caveator — Unregistered Transferee — Supreme
Court Rules, lSS4—0rd. 63, r. 2^— Practice^
Urgency.'] — An unregistered transferee of land
under the Transfer of Liuid Statute (No. 301), is
not a *' proprietor "or " applicant " entitled und»
sec. 1 17 to be notified of a caveat or to summon
the caveator. It is to be assumed till the contrary
is shown, that a single judge dealmg under Ord.
63, r. 2», of the Supreme Court Rules, 1884> with
a matter otherwise required to be determined by
the full Court, considered it a matter of urgency,
and so had jurisdiction. Y. L. R., vol. 2,
p. 780.

aOO. Summons In Chambers — 7« re
Williamson — Real Property Act.] — A judge in
Chambers has no jurisdiction to entertain a sum-
mons by a person seeking to bring property under
the Real Property Act. Calling upon a caveator
to show cause why his caveat, forbidding the
bringing of such property under the Act, should
not be removed. Sec. 81 of the Act (No. 140)
authorises such a summons only in the case of
caveats against dealing with property already
under the Act. 2 W. W. & AB., L., 119.



Summons, C ham bers, Requisites of.

See re Fearnley, No. 97, ante.



Summons to Registrar. See ex parte
Bowman, No. 2, ante.

glO. Summons to Remove Caveat—

Ex parte Vincent — Transfer of Land Statute,
sec. 117.]— On an application under sec 117 of



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DIGEST OP CASES.



[TIT



the Tnmtfer of Land Statute by the registered
proprietor of land to hare a caveat removed, the
Ck>urt will not order such caveat to be removed
upon such application where thsre is a conflict of
testimony, but may order that such caveat shall
be removed unless steps are taken to establish
caveator's title within a certain time. Y. L. B.,
12, p. 566.



L. Summons to Restrain Issue of

Certificate — Ex parte the Metropolitan Build-
ing Society^Tranefer of Land Statute, 29 Vict,
(No. 301), eect, 2, 4, 15, 17, 21, 22, 25, 29, 34,
43, 135, 136, 152; 42 Vict, (No, 610), sees. 2, 3,
4; 33 Vict. (^o. 353), sec. 11.]— This was a
summons by the Metropolitan Building Society
to restrain the Registrar of Titles from issuing a
certificate of title to Mr. B Byrne for some land
at Bichmond, with an endorsement of a right-of-
way over some adjoining land owned by the
Building Society. Judgment from December,
1885. The Act No. 610 is declaratory. The
Commissioner of Titles has power to enter upon
a certificate the easement appurtenant to the
dominant tenement, the registration of which is
applied for. A. L. T., vol. 6, p. 17.

Surplus Area. See ex parte Rowan, No.
14, ante.



. Surrender Lease, Effect of. (See
feffect.^ ^ ^—

Survey. See Equitable BuUding Society v.
Boss, No, 140, ante,

gig. Taking Proceedings — Ex parte
Fennington and others re Meredith*s Caveat^
Caveat— Real Property Act, 1862, sees, 21, 82.]
— A caveat under the Keal Property Act, 1862,
was lodged on 21st January, 1876. A writ of
summons was issued on the 28th of April follow-
ing, and was renewed from time to time, but was
never served. Under these circumstances, a rule
nidi to remove the caveat, under sec. 82 of the
Real Property Act, was made absolute, with costs.
V. L. B., vol. 13, p. 317.

gl3. Temporary Purxi09&s ^McOearv v.
Brodziak — Statute of Limitations — Adverse
Possession— Occupation for Temporary Fur-
^o#e#.]— Plaintiff, the caveator, in an issue under
the Beal Property Act, proved that A., in 1840,
used the land as a slaughter yard for twelve years.
He abandoned it for two years, and then allowed
B. to use it for several years as a garden. It was
then used by C, as a garden until 1868, when it
became vacant, and remained vacant until the
plaintiff took possession. The defendant, who
had the documentary title, was never on the land
until 1870. Verdict for the defendant :— Held,
that the jury were justified in coming to the con-
clusion that the occupation by A. was for tem-
porary purposes only, and was not such adverse



possession as to set the Statute running
against the true owner. N. S. W. L. B.,
voL 2, p. 303.

Tenancies under Three Years. See



Finnoran v. Weir, No. 136, ante.

Tenancy . See JeUicoe v. Wellington Loan
Co., No, 60, ante.



Tenancy at Will. See Stewart v. Belton,
No. 110, ante.

Tenancy In Common. See ex parte Locke,



No. 43, ante.



Tenancy previous to Mortgage. See
Colonial Bank v. Rahhage, No. 126, ante.

Tenancy, Yearly. See Otago Harbour
board V. Spedding, No. 165, ante.

Tenant. See Fatten v. Thompson^ No. 74,



ante.

gX3 (A). Tenant or Lessee — Cafogr^ v.
Pate— Sec. 49, No. 301— fTord*.]— Held, that
the word " tenant *' in the last proviso of the sec.
49, Transfer of Land Statute (No. 801), is used
in the sense of " lessee." A. B. 6, September,
1867.

Tenant for Life. See MilUr v. Stewart,



No. 172, anU.
Tenant In Possession. See Hunter v.



Player, No. 24, ante.
Tenant or Occupier. See Hart r.Slratton,



No. 119, ante.
Tenant Rights. See Slack v. Dawnton,



No. 11, ante.
Tender of Rent. See Kickham v. The



Queen, No. 47, ante.

Time. See Moyle v. Oibbs, No. 120, ante.



Title, Assertion of. See Stockdale v.



Hamilton, No, 154, ante.

Title by Native Custom. See Mangakahia



Online LibraryAustraliaThe land transfer laws of Australasia: being the full text with side notes ... → online text (page 82 of 83)