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

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V. N.Z. Timber Co., No. 100, ante.



Title from Public Trustee. See in re
James, No. 193, ante.



gl.4;. Title of Plaintiff— JfiZ^gr v.



Morrissey— Certificate of Title — Transfer of
Land Statute, sec. 159.]— The title of a plaintiff
in ejectment, which is based on a certificate of
title to a lease under the Amending Land Act,
1865, is not affected as to its concludye character ^



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as evidence for the plaintiff, by sec. 159 of the
Transfer of Land Statute, and a plaintiff relying
on such certificate alone, without going into evi*
dence prior to the title, cannot be nonsuited.
2 V. R. (L.), 193 ; 2 A. J. R., 115.



Murphy V. Mitchell — Certificate of

Title under Act No. 140.]— An owner of land,
out of possession, who receiTes a certificate of
title under the Act No. 140, subject to rights sub-
sisting under any adverse possession, receives evi-
dence of a good title until those rights are proved.
4 W. W. & A'B. (L.), 13. See also Munro v.
Sutherland, No, 204, ante,

aiS (A). Title, Proof of —Wilkineon v.
J?rafo».]— A duplicate copy of a certificate of title
under the Transfer of Land Statute (No. 801), is
admissible as prima facie evidence of title in eject-
ment. 1 V. E. (L.), 86 ; 1 A. J. R., 88.

Title to Land. See Regina v. Price^ 162,
ante ; re John Eaton, 194, ante.

Torti ous Sale. See St, George v. Burnett,
No. 67, ante.

Transfer. See ex parte Baynes, 82, ante;
Kelly V. Fuller, 139, ante ; Formby v. Adelaide
Corporation, 199, ante.

Transfer by Forged Instrument. See
Bailey v. Chrisp, No. 54, ante.

Transfer by Sale under Fl. Fa. See ex

parte Ellison, No, 48, ante.

Transfer by Sheriff. See FaUner v.
Andrews, No, 147, ante.

Transfer, Father to Children. See ex



parte Finlay, No. 55, ante.
Transfer from Sheriff.



Effect of.



See Sassett y. Colonial Bank, No, 138, ante.
Transfer of Land Statute Defined.



See Matthews v. James, No, 184, ante.

Transfer of Wrong Land. See Ashley v.
Cook, No, 137, ante.

Transfer. Unauthorised. See re Strong,
No. 218, post.

Transfer, Unregistered. See re William
Wadham, No. 114, ante.

Transferee, Unregistered. See re ex
parte Davies and Inman, No, 208, ante,

aie. Transferee. Title. Validity—
Fhilltps V. MoLachlan — Real Froperty Acts —
26 Vict,, No, 9, seo9. 83, 84, 40, 47—36 Vict^



No. 7, sec. 1 — From holder of certificate, as
against transferee of conditional purchase maiU
prior to grant — Ejectment.^ — On 4th March,
1869, Gr. conditionally purchased the land in
question. On 11th March, 1872, O. transferred
to defendant by notification to the land agent of
the district. On 6th September, 1872, a Crown
grant was issued to Q-. ; and in 1880, the Sheriff
sold under a fi. fa., all G-.'s right, title and
interest to P. ; and subsequently, in the same
year, P. obtained a certificate of title. In 1881,
P. sold to W., to whom a fresh certificate of title
was issued. Later in the same year, W. sold to
the plaintiff by memorandum of transfer endorsed
on W.'s certificate. No fresh certificate of title
was issued to the plaintiff : — Held, that the
plaintiff was entitled to maintain the action
against the defendant. Soc. 33 of the Real
Property Act (26 Vict., No. 9) applies to oases
where a grant from the Crown has been issued
subsequent to the passing of the Act, and makes
a certificate of title conclusive evidence of th'^
things stated in it. The plaintiff^ by virtue of
sec. 1 of 36 Vict., No. 7, has the same rights as if
a fresh certificate of title had been issued to him.
And the endorsement of the memorandum of
transfer on the certificate to W. is, by virtue of
sec. 34 of the Eeal Property Act, evidence of the
registration of the transfer from W. to the plain-
tiff.

Semble : That by sec. 47 of the Real Property
Act all the rights of W. were, by the execution of
the memorandum of transfer, conferred on the
plaintiff. N. S. L. E., voL 5, p. 68.

Transmission. See Fannan v. Fannan, No.
18, ante.

Trespass. Qee Sunter r. FUtyer, 24, ante;
Mangakahia y. N.Z, Timber Co., 100, ant^ ;
Reg- V. Frioe, 162, ante.

Trustee. See National Bank v. National
Mortgage and Agency Co., 12, ante ; St. George
V. Burnett and another, 57 and 175, ante ; Miller
V. Stetvart, 172, ante.

Trusts. See Cuthhertson v. Swann, No, 144v
ante. See also " Breach," " Construction."

glT. Trusts, Compllcated - .Er parte
Fennington and others in re the Real Froperty
Act.2 — James Underwood by his will devised his
real estate in certain specified portions to his five
sons and the son of his daughter, for their res-
pective Utcs, witli remainder to their children in
equal shares and proportions as tenants in common
in tail, with cross remainders between them in
tail. Interests numerous and complicated aroM
in the estate by reason of sales, or attempted
sales, transfers, mortgages, insolvencies and deaths,
and the number of persons claiming shares in the
property became so large that the Legislature
passed an Act to authoriBO the sale of the whole



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of the devised lands for the benefit of all parties
interested in it. By the Act, the legal estate was
rested in the tmstees, who were empowered to
;^ell the landsi &o., and to convej the same to the
purchasers in fee ; and it was enacted that the
s'&id lands, &c., should Test absolutely in the pei-
»n8 to whom they were conveyed, their heirs and
i» signs, ''freed and discharged from any trusts
'^eated by the said will.'* By a second Act, the
Primary Judge was authorised to appoint two
a.lditional trustees. The trustees applied to have
\ ' )rtions of the land devised by the will brought
under the provisioifi of the Real Property Act.
J he Commissioners rejected the application, on
~^ie grounds, substantiaily, that it had been
.* certained by search in the Registry office that
t c^ere were various encumbrances affecting the
property which had not been noticed in the appli*
,:.tion, and that the parties interested in such en-
cumbrances were not parties to the application,
r nder the 107th section of the Lands Titles Act.
1 he trustees applied to the Court to make such
nrder in the premises as in its judgment the cir-
iimstances of the case may require : — Held, that
the legal estate was vested in the five trustees,
and that they had a power of selling and convey-
ing a title in fee-simple to purchasers. Also : —
Held (Sir James Martin, C.J., dissenting), that
the trustees had complied with the provisions of
' he Land Titles Act ; and that the application
^liould be sent back to the Begistrar-^neral to
tf&use the investigation of the title to be proceeded
with. The order drawn up (and settled by the
• ourt) was as follows : — It was declared :
" (1) That all the applicants have vested in them
'he legal estate of the lands devised by the will of
} ames Underwood in the said application men-
- 'oned, with full pow^r to sell and convey the
. .\me absolutely to the purchasers, their heirs and
^dsigns, freed and discharged from all the trusts
L.-eated under the said wiU, and from all derivative
interests thereunder; (2) that the applicants
' ave sufficiently complied with the terms of the
Ith section of the Beal Property Act to require
)ie Lands Titles Commissioners to direct the pub-
leation of the notices required by the 17th section
' f the Act, and to proceed in due course^with all
T lie enquiries necessary to enable them to deter-
mine up)on the said application to bring the said
lands within the said Act ; and it is ordered that
the Begistrar-General do cause the said applica-
tion to be further proceeded with accordingly."
V.L.R., vol. 18, p. 305.

Two Years* Lease. See Suckett v. Knobhe,
Xo, 168, atUe.



Ultra Vires. See Mudgway v. Davy
fiuick, 1, ante 5 ea? parte Bond, 89, ante.



and



gl8.' Unauthorised Person Preparing



Vransf er—22tf Strong^ll Vict., No. 38, sec]
13.]— A person preparing a transfer of land for



reward without proper authorisation to do so, is
guilty of a contempt of Court under sec. 13 of
the Act, 11 Vict., No. 38. 4 A. J. R., 150.

Undertaking for Payment of Money.



See Regina v. IHdeman, No. 99, ante.

_Unregl8 tered Instrume nt. See Franklin
V. Indf 156, ante ; Otayo Harbour Board v.
Spedding, 165, ante.

Unregistered Lease. See Morriesey v.
CletnentSt No. 115, ante.

Unregistered Mortgaga. See Friehe v.
Cullen, No. 178, ante.

Unregistered Transfer. See re A.

Bosquet, No. 202, ante.



Unregistered Transferee — DflmV«

V. Inman and others— Transfer of Land Statute,
1866 (No. 301), sec. 17.]— An unregistered trans-
feree is not entitled, imder sec. 117, to be notified
of a caveat by the Registrar, or to summon the
caveator with a view to the removal of the caveat.
A. L. T., vol. 7, p. 99.



Unwritte n Trust. Costs . Bee D'Albrdyhll
V. D'AlbrdyhU, No. 82, ante.



Use and Occupation. Bee Louche, BaU,
No, 9, ante.

Valuable Consideration. See ex parte
Finlay, No. 56, ante.

Variance. Plan and Pegs. Bee Stevens r.
Williams, No. 186, ante.

Vendor and Purchaser. See Boss v.
Victoria Building Society, No. 180, ante.

Vendors. See Boss v. Victoria Building
Society, 180, ante i Miller v. Morrissey, 181,
ante.



Vendor's LIah. gee Kelly v. Fuller, No.
189, anie.



Verdict^ Defendant. See Jones v. Hill,
No. 151, ante.

Victorian Transfer of Land Statute
Quoted. See Featherstone v. Hanlon, No. 4,
ante.

Voluntary Conveyance. See SkacJcell r.
14ndsay, No. 174, ante.



>. Voluntary Settlement — 7?iv;^j/ v.

Prendergast.y^C, in June, 1872, recovered a
judgment against P. P. for £229 148. 6d., in-
cluding costs. On 28rd November, 1871, while



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the action was pending, P. P. settled land in trust
for his wife, W. P., the consideration for the
settlement being stated to be natural lore and
affection. On the 20th May, 1872, P. P. and
W. P. conveyed the property to J. P., brother to
P. P., the consideration being stated as £250, for
which a receipt was professed to be given. P.
P.'s estate was sequestrated on the 1st of August,
1872. The trustee of P. P.'s estate instituted a
suit to have the settlement and conveyance set
aside. There was no evidence that J. P. had
paid the £250 alleged to have been paid : — Held,
that the settlement was void, and the conveyance
fraudulent, and the land ordered to be ^iven up
to the trustee; also, an account of the rents
received by J. P., and of expenses incurred by
him was directed. 4 A. J. B., 12.



.Void Lease — Hill v; Cox — Real

Property Act 0/I86I, wc. ^2— The Seal Property
Act o/lS77i sees. 18 and 31.]— H. leased land
under the Real Property Acts of 1861 and 1877
toC. for upwards 01 three years by means of a
lease not in form of the Schedule to the Act ot
1861 : — Held, that such lease was void under sec.
52 of the Actof 1861, but that 0. havine; entered
and paid rent under the void lease, he became a



tenant irom year to year, and that such i
was a demise within the meaning of tec 31
Act of 1877. Q. L. J. B., 1882, p. 78.

Waiver. See JSttershank v. The Q«a
153, ante.



Way. Right of. (See Certfflcal

Will. See Campbell v. Jarreti, No. 142, <a&

Will, Construction of. See MeCcBrtaeg'
Ketterton, No. 17, ante.

Will of Lands. See Saunders v. Cahol, 5i
15, ante.

Witness. See re O'Brien, No. 34^ <uUe.

Wrongfully Retained. See I>e Lius '

Coleman, No. 207, ante.

Wrong Land Sold. See Sharpev. Ba&t.



No. 3, ante.



Yearly Tenancy. See Tranter v. Lord, /u
25, anU.



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