TRANSFER OF LAN ACD T 1915. · to be signe bd y the Registra r or by a Assistann t Registrar shal be l admissible as evidence without furthe proofr . 11. Everythin by thigs Act appointed

TRANSFER OF LAND. 4577

TRANSFER OF LAND ACT 1915.

An Act to consolidate the Law relating to the 6 GEORGE v., Simplification of the Title to and the Dealing No^_i0-with Estates in Land.

[6th September, 1915.]

WHEREAS it is expedient to give certainty to the title to estates Transfer of in laud and to facilitate the proof thereof and also to render Land Aci 1890'

dealings with land more simple and less expensive :<"> Be it therefore enacted by the King's Most Excellent Majesty by and with the advice and consent of the Legislative Council and the Legislative Assembly of Victoria in this present Parliament assembled and by the authority of the same as follows (that is to say):—

1. This Act may be cited as the Transfer of Land Act 1915, and short title shall come into operation on the first day of October One thousand I£d$tE£ei,t

nine hundred and fifteen, and is divided into Parts and Divisions as n. s. 1. follows:—

PART I.—Officers ss. 5-15. PART II.—Bringing Land under the Act ss. 16-46. PART III.—Certificates of Title and Registration ss. 47-86. PART IV.—Title by Possession to Land under the Act.

Removal of Abandoned Easements ss. 87-104. PART V.—Roads, Passages &c. ss. J 05-120.

'Division 1.—Transfers ss. 121-130. Division 2.—Leases and Sub-leases ss.

PART VI.—Dealings J 131-144. with Land. ] Division 3.—Mortgages and Annuities

ss. 145-174. Division 4.—Miscellaneous ss. 175-182.

PART VII.—Caveats ss. 183-188.

(a) " The object of the Transfer of Land Act is not to obstruct but to facilitate business, and the Registrar is not justified in refusing to register an instrument merely because it does not literally comply with the precise form prescribed for such instruments, provided that any varia

tion from the form does not affect the substance." —Per Griffith, C.J., Drake v. Templeton, 16 C.L.R., 153, at page 157; and see Perpetual Executors and Trustees Association v. Hosken, 14 C.L.R., 286; and Mahony v. Hosken, 14 C.L.R., 379.

VOL. V . — 2 r

4578 TRANSFER OF LAND ACT 1915. [6 GEO. V.

Transfer of PART YIII.—Powers of Attorney and Attestation of Instrn-LandActmo. rneiits ss. 189-191.

PART IX.—Registration Abstracts, Search Certificates, and Stay Orders ss. 192-200.

PART X.—Surveys, Plans, Parcels, and Boundaries ss. 2 0 1 -214.

PART XI.—Rectification of Certificates ss. 215-224. PART XII.—Special Powers and Duties of the Commissioner

and Registrar ss. 225-238. PART XIII.—Assurance Fund ss. 239 -242. PART XIV.—Actions and other remedies ss. 243-258. PART XV.—Offences ss. 259-263. PART XVI.—Miscellaneous ss. 264-281.

Repeal. 2 . The Acts mentioned in the F i r s t Schedule to this Act to the First schedule, extent to which t he same are thereby expressed to be repealed are

hereby repealed. Provided t h a t such repeal shal l not affect any appointment declaration or any certified s ta tement or list made, or any appl ication pending, or any registrat ion effected, or any notice or certificate given, or any memorial entered, or any caveat lodged, or any seal prepared, or any title estate interest claim r ight of dower or other r igh t or power of attorney existing or duly acquired under the said Acts or any of them before the commencement of this Act.

Laws inconsis- 3 . Except so far as is expressly enacted to the contrary no law tonitandtundae?ply S ta tu te Act or rule, so far as inconsistent with this Act, shall apply or be this Act. deemed to apply to land whether freehold or leasehold which is under the

operation of this Act.*"' This Act shall not be construed as l imiting or abridging any provisions of the Married Women's Property Act 1915.

n>. s. 3.

Interpretation. lb. B. 4.

"Annuitant."

"Annuity."

"Charge."

"Commissioner for taking affidavits."

' Court.'

4. In the construction of this Act, unless inconsistent with the context or subject-matter—

" Addition" means the description as to residence profession trade or occupation of any person:

"Annuitant" means the proprietor of an annuity or charge : " Annuity" means a sum of money payable periodically and

charged on land under the operation of this Act by an instrument hereunder:

"Charge" means the instrument creating and charging an annuity:**

" Commissioner for taking affidavits" means a commissioner of the Supreme Court of Victoria for taking affidavits or a commissioner for taking declarations and affidavits:

" Court " means Supreme Court:

(a) A voluntary settlement of land under this Act is void under 27 Eliz. c. 4, as against a subsequent purchaser with notice from the settlor, notwithstanding that the volunteer holds a certificate of title as registered proprietor; such subsequent purchaser may maintain a suit for specifio performance against the settlor and the registered proprietor.—Colechin v. Wade, 3 V.L.R. (Eq.), 266.

Where a person voluntarily settled lands on his wife, and she died, and he took out adminis

tration, and then mortgaged the land which was under the Act : Held, the mortgages pro tanto defeated the voluntary settlement by virtue of 27 Eliz. c. 4.—Droop v. Colonial Bank, 7 V.L.R. (Eq.), 71 ; see also Moss v. Williamson, 3 V.L.R. (Eq.), 221, and Ex parte Patterson, 3 A.J.R., 92.

But see now Part XVIII. of tho Real Property Act 1915.

(6) See note to section 145.

No. 2740.] TRANSFER OF LAND ACT 1915. 4579

charged with the

' Encumbrances" includes all prior estates interests rights claims and demands which can or may be had made or set up in to upon or in respect of the land:

' Endorsed" includes anything written upon or in the margin or at the foot of any document:

' Examiner of Titles" means one of the examiners appointed under any of the Acts heretofore in force or under this Act and any other person being a barrister and solicitor appointed as such examiner under this Act :

' Grant" means the grant by His Majesty of land whether in fee or for years, and includes a lease for years by the Board of Land and Works granted under the authority of The Amending Land Act 1865:

' Grantor " means the proprietor of land payment of an annuity:

' Instrument" includes a transfer lease sub-lease mortgage charge and creation of an easement:

' J u d g e " means a judge of the Supreme Court of Victoria: ' Land" includes messuages tenements and hereditaments

corporeal or incorporeal; and in every certificate of title transfer and lease issued or made uuder this Act such word also includes all easements and appurtenances appertaining to the land therein described(a) or reputed to be part thereof or appnrtenant thereto:

' Person " includes a corporation whether aggregate or sole: ' Proprietor" means the owner whether in possession re

mainder reversion or otherwise of land or of a lease mortgage or charge whose name appears or is entered as the proprietor thereof in the register book; and such word also includes the donee of a power to appoint or dispose of the same:

; Settlement" means any document under or by virtue of which any land is so limited as to create partial or limited estates or interests:

'Sheriff" includes the sheriff and any deputy sheriff or person appointed to execute any writ of fieri facias:

'• Transmission" means the acquirement of the ownership of freehold land under the will or any writing in the nature of a will of the proprietor or under any settlement.

Transfer of Land Act 1890. "Encumbrances." •

"Endorsed."

" Examiner of Titles."

'Grant.'

'Grantor."

•Instrument."

'Judge."

'Land."

'Person."

'Proprietor.'

'Settlement."

'Sheriff."

'Transmission.'

PAET I.—OFFICERS.

5. The present Commissioner of Titles shall be and he is hereby commissioner appointed the Commissioner of Titles under this Act. The Governor Ib s 6 ' in Council may upon any vacancy occurring in such office by death resignation or removal appoint a person to fill such vacancy.

6. In case of illness or absence the Governor in Council may power to appoint appoint a person to act as the deputy of any officer appointed by or o/ninesso?0"86

under this Act during such illness or absence; and such deputy w hi l e sence. acting under such appointment shall have all the powers and perform all the duties of the officer of whom he is deputy.

(a) This does not include easements in gross.—Ex parte Johnson, 5 W.W. & a'B. (L.), 55.

2 r 2

4580 TRANSFER OF LAND ACT'1915. [6 GEO. V.

7. The present Examiners of Titles shall be Examiners of Titles under this Act; and one of such examiners being the senior examiner shall be called the Chief Examiner; aud the present Registrar of Titles shall be Registrar of Titles under this Act and the present Assistant Registrars shall be Assistant Registrars under this Act.

8 . The Governor in Council may from t ime to t ime appoint one or more Assis tant Regis t rar or Regis t rars of Titles, and any other officers necessary for carrying out the provisions of this Act ; and may remove any Commissioner Examiner Registrar or any other officer, whether by this Act appointed or hereafter to be appointed, and fill any vacancy thereby or otherwise occurring.

certain 9 . Al l courts judges and persons act ing judicially shall t ake jlfdldaiiy8to be judicial notice of the signature of the Commissioner of Titles (herein-noticed. . after called the Commissioner) and of the Registrar of Titles (herein-n. s. a after called the Registrar) and of any Assistant Registrar of Titles

(hereinafter called an Assistant Registrar).

Transfer of Land Act 1890 !. 7. Examiners of Titles and -Registrar.

Appointment of other and removal of all officers. lb. s. 8.

Seal of office. lb. 8.10.

Powers of Assistant Registrar. lb. s. 11.

10. The Registrar shall cause to be kept a seal bearing the impression of the Royal Arms and having inscribed in the margin thereof the words "Office of Titles Victoria;" and all certificates of title and other documents purporting to be sealed with such seal and to be signed by the Registrar or by an Assistant Registrar shall be admissible as evidence without further proof.

1 1 . Every th ing by this Act appointed or authorized or required to be done or signed by the Regis t rar may be done or signed by any Assis tant Regis t rar ; and shal l be as valid and effectual as if done or signed by the Registrar himself.

1 2 . The Commissioner shal l not, nor shal l Examiner of commissioner i y . xiie (jommissiouer shal l not, nor shal l any Titles not to Titles under this Act, directly or indirectly practise as a barrister or IrTf'it solicitor or part icipate in the fees of any other person so pract is ing.

oaths of office. 1 3 . Every Regis t rar and Assis tant Regis t rar shall unless he has ib.s. i3. already taken a similar oath before executing any of the duties of his

office take the following oath before a judge :— 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 Registrar of Titles [or Assistant Registrar of Titles] under the Transfer of Land Act 1915. So help me God>>

Appointment of sworn valuators. lb. s. 14.

14. The Governor in Council may appoint persons to be sworn valuators under this Act and at pleasure annul the appointment oi any such person. Every such person shall within fourteen days from his appointment and before making any valuation under this Act take the following oath before a judge:—

I A.B. do solemnly swear that I will faithfully and honestly and to the best of my skill and ability make any valuation required of me under the provisions of the Transfer of

. Land Act 1915. So help me God>>

(a) For the usual form of oath, see the Evidence Act 1915, section 93.


15 . The Governor in Council may from time to time appoint such Transfer of persons residing within Victoria as he thinks tit to be perpetual f"'Âet 189° commissioners for taking acknowledgments of applications and instru- Power to appoint

. . -, i - i 1 l • persons to take mcnts signed by married women, and may remove any such commis- aoknowiedg-sioner; and where by reason of absence from Victoria or residence at a SrUd women, distance or ill-health or any other sufficient cause any married woman is prevented from making the acknowledgment before the Registrar or an Assistant Registrar or one of the perpetual commissioners or any other authorized person it shall be lawful for the Commissioner by writing under his hand to specially appoint any person to be a commissioner to take the acknowledgment by any married woman to be therein named of any application or instrument; and the certificate of such acknowledgment shall be deemed and received as sufficient evidence of the due acknowledgment by her of the document therein referred to.

PAET II.—BRINGING LAND UNDER THE ACT.

16. The grants in fee or for years or by way of perpetual lease of crown lands all Crown lands remaining unalienated shall be in duplicate and m unalienated to

addition to proper words of description shall refer to a map of the land Sndlrthôt. on the scale at present used or on such other scale as the Governor in n. «.i9. Council from time to time directs ; and after payment of the fee for the grant and of the contribution to the assurance fund (in cases wherein such contribution is payable) shall be delivered to the Registrar, who shall register the same in manner hereinafter directed. Such registration shall be deemed and taken to be an enrolment of record of the grant; and such enrolment shall relate back to the day of the date of the grant, and either part of the grant when registered under this Act shall be sufficient evidence of a duly enrolled grant of the land therein described to the person therein named on the day of the date thereof.

17. At the time of the registration of every grant in fee to two AS to grants for or more persons in joint tenancy for any public purpose, the Registrar J™ lcPurP°ses-shall endorse thereon and on every subsequent certificate of title the words "no survivorship" and shall sign his name thereto.

18 . Land<a> alienated in fee by any predecessor of His Majesty Lands alienated before the second day of October One thousand eight hundred and sixty- commencement6

two may be brought under the operation of this Act on an application ^l^brou^ht in the form in Part I. of the Second Schedule ; which application may under this Act. be made by any of the following persons (that is to say):— second

(i.) The person claiming to be the owner of the fee-simple either |cahrtdiule'

at law or in equity :<6> n.». 21.

(a) Where land is for the first time brought (6) Trustees in fee of land not having power under this Act, the Registrar may, against the of sale are " owners " within the meaning of this will of the proprietor of tho servient tenement, sub-section, and entitled to bring land under include in the certificate as an appurtenant the operation of the Act.—In re Benn, 12 V.L.R., easement a right of way over adjoining land 366. already under the Act. Queen, whether the An application by the owner in fee simple of court has jurisdiction, in the absence of any land to bring it under the operation of the Trans-rules of court upon the matter, to prescribe the fer of Land Act does not lapse on the conveyance, mode of investigating a disputed title to an during the pendency of the application, of the easement sought to be registered under this Act. applicant's estate to a purchaser; and the Regis-—Ex parte The Metropolitan Permanent, <bc, trar is bound, in the absence of a caveat, to pro-Society, 10 V.L.R. (L.), 361. ceed with the application as originally made


Transfer of Land Act 1890.

Transfer of Land Act 1914 s.S.

(n . ) Persons who collectively claim to be the owners of the fee-simple either a t law or in equity:

( in . ) Persons who have the power of appoint ing or disposing of the fee-simple:

(xv.) The person claiming to be the owner of the first estate of freehold if the owner of the first vested estate of inheri tance consents to the applicat ion:

(v.) Trustees for sale of the fee-simple, provided t h a t if any previous consent to their selling is requisite the application is consented to by the persons required to give such consent:

(vi .) The guardian of any infant or the committee of the estate of any lunatic or person of unsound mind unable to govern his estate so however tha t the application is made on behalf of such infant lunatic or person and the certificate of title is directed to issue in his n a m e :

( V I I . ) A tenant for life within the meaning of the Settled Estates and Settled Lands Act 1915. Provided t h a t the application contains a direction t h a t the certificate of t i t le be issued in the names of the trustees of the set t lement within the meaning of t h a t Act and the trustees consent to the application.

Provided always t h a t a mortgagor shall not be entitled to make such application unless the mortgagee consents there to; nor a mortgagee unless in the exercise of his power of sale and unless the certificate of t i t le is directed to issue iu the purchaser 's name ; nor a married woman unless her husband consents thereto and the application is acknowledged by her in the manner hereinafter mentioned as to the acknowledgment of ins t ruments (except she is enti t led to the land for her separate use or has a power to appoint the same). Provided also t h a t the attorney of any corporation, howsoever and wheresoever incorporated, whether already constituted or hereafter to be constituted by a power of at torney under a seal purport ing to be the common seal of the corporation giving the power may make such application for or on behalf of the corporation of which he is the attorney, and may make the requisite declaration to the best of his knowledge information and belief, and may subscribe the application in his own name.

In applications to br ing land under the Act the Commissioner may accept as evidence recitals s ta tements and descriptions of facts mat te r s and parties in deeds ins t ruments Acts of Par l i ament or s tatutory declarations not less than twenty years old and an applicant shall not be required to negative save as to t l ie knowledge information and belief of himself and his agents the existence of any unregistered conveyances or assurances affecting any pa r t of the land the subject of the application.

How application 19- The Regis t rar shall refer such application to an Examiner , whendoadeaiinh w u 0 s n a ^ report on the title and submit the same and the papers has been to the Commissioner for his d i rec t ion; and if i t appears to regis er . ^ j e Q o m m [ s s ; o n e r t}ia£ n 0 transaction affecting- the land has been

Evidence and restric ipns of requisitions. lb. «s. 4 & 5.

or to issue the certificate of title in the name of the purchaser, as the applicant may direct.—

The King v. Registrar of Titles, ex parte Murray, 1913 V.L.R., 546.


registered under any general registration Act concerning the regis- Transfer of tration of instruments relating to or affecting land, he shall direct ,."22.-4c* 189° the Registrar to bring the land under the operation of this Act forthwith by registering a certificate of title.

20 . If it appears to the Commissioner that any such trans-HOW amplication action as aforesaid has been registered and that all encumbrances whenadetitagh

affecting the land (excepting such as are hereinafter mentioned as not has been requiringspecialnotification)havebeenreleased,orthattheownersthereof 76.«. 23. have consented to the application, or that any encumbrance (not being a mortgage the owner whereof has not consented to the application) may be specified in the certificate of title and continue outstanding, the Commissioner shall direct notice of the application to be advertised once at least in one newspaper published in the city of Melbourne or circulating in the neighbourhood of the land, and to be served on any persons named by him; and shall appoint a time not less than fourteen days nor more than twelve months from such notice or from the advertisement or the first of such advertisements (if more than one) on or after the expiration of which the Registrar shall, unless a caveat is lodged forbidding the same, bring the land under the operation of this Act.

2 1 . The Registrar shall, under such direction as aforesaid, cause Notice of notice to be published in such manner as by such direction is pre- hnn' fanTumier scribed that application lias been made for bringing the land under tnis.Aot and

P J I * A T i n n i • ^ rescission of the operation 01 this Act, and shall cause a copy 01 such notice to be previous direc-posted in a conspicuous place in the office, and shall send through the delay.0" un ue

post office a registered letter marked outside "Office of Titles" i*>-«•24-containing a copy of such notice addressed to every person whom the Commissioner has directed to be served with notice and to the persons stated in the application to be occupiers of the land and (unless the land is an entire Crown allotment) to the occupiers and owners of the lands contiguous thereto. Notwithstanding however any direction heretofore given or which hereafter is given by the Commissioner to bring land under the operation of this Act or under the corresponding provisions of any Act heretofore in force he may, after sending through the post office to the applicant or his agent one month's notice in this behalf, rescind such direction and reject the title unless the applicant adduces satisfactory proof that he is proceeding without unnecessary delay in removing or complying with the requisitions made on the title.

22 . Upon any application being made to bring land under this Notices of appli-

Act the Commissioner shall direct the notice thereof mentioned in ^ t lon ' section twenty of this Act to be served on all persons appearing on the register to have a then subsisting estate or interest in the land, by the Registrar sending through the post office a registered letter marked outside " Office of Titles " containing a copy of such notice addressed to such person at the address (if any) appearing upon the r e g i s t e r . Person claiming

title by 2 3 . On any application to bring land under this Act on a title PJJ™^™ t0,

claimed by possession the applicant shall post on the land the subject application on of the application or at such place as the Commissioner directs ônA

a notice in the form in Part I I . of the Second Schedule, either schedule, Part II. lb. «. 26.


Tranter 0/ accurately describing or necessarily including the land claimed by Land Act _i89o. p0 S S e s s i0 I 1 ) a n ( j s h a n k e e p the same so posted for not less than

twenty-one days prior to the granting of such application ; and the Commissioner may refuse to issue the certificate until it has been proved to his satisfaction that the requirements of this section have been complied with.

Land to be 24 . If before the registration of the certificate the Registrar uiricîeS n a s not received a caveat forbidding the same, he shall br ing the land caveat received, under this Act by registering in the name of the applicant or in the ib. s. 27. name of such person as has been directed in tha t behalf a certificate schedule. of ti t le to the land in the form in the Third Schedule.

Land occupied 2 5 . On any application to br ing laud under this Act 111 which under tmÂct' the land actually and bond fide occupied^ by the applicant differs in descnptio'n from boundaries area or position from the land described in his muniments of that in the title ti t le, he may apply to br ing under this Ac t the land so occupied; and in application. &riy such case the applicant shall state in his application in addition ib. s. 28. to the other part iculars required by this Act tha t the land as occupied

by h im and as to which he applies for a certificate is not correctly described in the muniments of title lodged in support of the application, and shall specify to the best of his knowledge and belief the reasons for the discrepancy between the land as occupied and the land as described in the muniments of t i t le .

Applications to 2 6 . On any application to br ing land under this Act by a Ao"5r to'lnien" description different from tha t in the muniments of ti t le or for the issue certificate may 0 f a n amended certificate or for the amendment of a g ran t or certificate land occupied the Commissioner may g ran t the same as to the land in the de8cribedtin°the occupation of the applicant if the discrepancy between the land certificate3 °r a s occupied and as described in the muniments or grant or certificate of ib. s. 29. title appears to be due to the inaccuracy of any survey or plan or

description on the sale of the land by the Crown or on any subsequent dealing therewith, or to any discrepancy between the actual measurements or bearings at any time made or marked on the ground and those represented or mentioned in any plan or description/*)

Title may be 2 7 . I f the land included iu any application to br ing land under onandoccupied this Act or for an amended certificate or for the amendment of a CTanToCvr°r™nd El",in^ o r certificate consists of a Crown section or Crown allotment described in or portion, and it is found by survey or otherwise that by reason of TJ'.'SO""1' erroneous measurements in the original Crown survey the actual

dimensions of such section allotment or portion as marked on the ground exceed or fall short of the dimensions given in the Crown grant of such land, the Commissioner may issue a certificate or amend the grant or certificate in respect of such land as if the dimensions marked on the ground had been the dimensions given in the Crown grant.

(a) Semble, on an application to bring land Trustees, <bc, Go. v. Hassett, 1907 V.L.E., 404. under the Transfer of Land Act, where the land (b) Semble, the provisions of this section limit sought to be brought under the Act is in excess the powers of rectification possessed by the of the land shown by the Crown grant, it is Commissioners under sections 215, 222, and 23. essential under this section that the excess should —National Trustees, &c, Go. v. Hassett, 1907 be in the occupation of the applicant.—National V.L.B., 404.


2 8 . Where a Crown section has been subdivided by the Crown Transfer o/ into allotments or portions of equal area and by reason of erroneous f"£f_ Act 1S90

measurements in the original Crown survey the area of the section as Excess of land marked on the ground exceeds the sum of the areas of all the allotments apportioned or portions as shown by any plan or description used at the Crown sale Jjf^S owners or by any grant or certificate of title of any such allotment or portion, or proprietors, the total excess of area of the section shall be deemed originally distributable amongst the allotments or portions equally; and if the area of the laud included in any application to bring land under this Act or for an amended grant or certificate is in the applicant's possession and

.was in such applicant's possession or those through whom lie claims for over fifteen years previous to the application and does not exceed the area obtained by dividing the area of the section as shown on the ground by the number of original allotments or portions, the Commissioner may without ascertaining the dimensions of the other

0 allotments or portions and without the consent of the owner or owners thereof issue a certificate or amend the grant or certificate in respect of the land included in such application as if the whole of it had been included by metes and bounds in the original grant or certificate of such allotment or portion.

29. Any person claiming any estate or interest in the land*") parties described in the advertisement may, before the registration of the i 7etare"t.By

certificate, lodge a caveat with the Registrar in the form in the Fourth Fourth Schedule forbidding the bringing of such land under this Act. j^gjj6 -

Every such caveat shall be signed by the caveator or by his agent, and shall particularise the estate or interest claimed: and the person lodging such caveat shall if required by the Registrar support the same by a statutory declaration, stating the nature of the title under which the claim is made, and also deliver a perfect abstract of the title to such estate or interest. No such caveat shall be received unless some address or place within the present limits of the city of Melbourne shall be appointed therein as the place at which notices and proceedings relating to such caveat may be served.W

30 . The Registrar upon receipt of such caveat shall notify the »caveat be same to the applicant, and shall suspend proceeding in the matter proceedings until such caveat has been withdrawn or has lapsed as herein- ™sPended-after provided or until an order in the matter has been obtained from the Full Court of the Supreme Court. The applicant may if he thinks fit summon the caveator to attend before the Full Court

(a) Per Stawell, C.J., and Holroyd, J.—" There a caveat.' "—Ex parte The Metropolitan Perma-are no means provided by the Transfer of Land nent, <fcc, Society, 10 V.L.R. (L.), 361. Statute by which the owner of a tenement (6) Under the former practice it was held that alleged to be servient can contest the claim of a rule nisi to romove a caveat was not properly the owner of the tenement alleged to be domi- served upon tho caveator by leaving it at the nant, to have registered an easement over the address namod in the caveat, at a time when no alleged servient tenement." Per Higinbotham, person was there present to receive it. If the affi-J.—" Where the owner of a tenement alleged davit of service disclosed such mode of service into be dominant claims to have registered an stead of stating, in the usual form, that service was easement over a tonement alleged to be servient, effected, it was unnecessary for tho caveator, in mov-the owner of the alleged servient tenement is a ing to rescind such rule, to mako a counter-affidavit person having an ' estate or interest in the land that the rule nisi never reached him or came to his described in the advertisement and may lodge knowledge.—In re Slack, 1 V.L.R. (L.), 319.


Transfer of to show cause why such caveat should not be removed;(a) and such court una Act 1890. m a V j n p 0 n proof that sucli caveator has been summoned, make such

order in the premises either ex parte or otherwise and as to costs as to such court seems fit.

Caveat to lapse 3 1 . After the expiration of one month from the receipt thereof retaken06**1' such caveat shall be deemed to have lapsed/" unless the person by iVitnth°ne whom or on whose behalf the same was lodged within that time lias n.s.34. taken proceedings in a court of competent jurisdiction to establish his

title to the estate or interest specified in the caveat, and has given written notice thereof to the Registrar/") or has obtained and served on him an injunction or order of the Supreme Court or a judge restraining him from bringing the land under this Act.(d) A caveat shall not be renewed by or on behalf of the same person in respect of the same estate or interest.

(a) Under a previous section, 81 of 25 Vict. No. 140, a judge in chambers had no jurisdiction to entertain a summons, by a person seeking to bring property under the Act, calling upon a caveator to show cause why his caveat, forbidding the bringing of such property under the Act, should not be removed. That section authorized such a summons only in the case of caveats against dealing with property already under the Act.—In re Williamson, 2 W.W. & a'B. (L.), 110.

On an application to bring land under the Transfer of Land Act, a caveat was lodged, and the caveatrix commenced an action to establish her title. An order was made that the caveatrix should give security for costs, and, she being unable to comply therewith, the action was dismissed. The applicant then applied under this section for an order that the caveat be removed.

Held ("per. Madden, C.J., and Hodges, J. ; Cussen, J., dissentiente), that although the court, on the dismissal of an action to establish the caveatrix's title, might, in special circumstancos, refuse to order the removal of the caveat, the applicant had a primd facie right to have the caveat removed.

Held (per Cussen, «/.), that primd facie the application should be decided on the titles shown by the parties, and that on the facts the applicant should either be compelled to show a title, or the caveatrix should be given an opportunity to take further proceedings to establish her title.—In re McNaughlon, 1909 V.L.R., 398.

As to compensation where a caveat is lodged without reasonable cause, soe section 186.

(b) The Legislature contemplates the commencement of legal proceedings as being sufficient to prevent the caveat from lapsing. The issue, by the caveator, of a writ of ejectment is sufficient.—In re the caveat of Slack, ex parte Winder, 5 A.J.R., 83.

After the lapse of a caveat forbidding tho bringing of land under the Act, the court or tho judge has no power to make an order under this section restraining the Registrar from bringing land under the Act.—Ex parte Aylwin, 4 V.L.R. (L.), 116.

(c) I t is not necessary to serve notice on the applicant.—Ex parte Beissel, 5 V.L.R. (L.), 53, at page 58.

(d) There is nothing in the Act generally enabling a plaintiff to transfer a legal right to a court of equity, or to compel a defendant to disclose his title. Where a bill was filed by a plaintiff alleging a legal title to certain land, and seeking to restrain the defendant, tho Registrar of Titles, from registering the other defendants as proprietors, and also seeking discovery of their title, but containing no allegation as to who was in possession: Held, that it might bo assumed against the plaintiff that the defendants were in possession, and if so, there was no obstacle to his maintaining ejectment.—Jamison v. Quintan, 3 V.L.R. (Eq.), 230.

I t was held that section 24 of Act No. 301, the corresponding section, did not create a new jurisdiction of courts of equity to protect persons having legal or equitable titles against tho inconveniences resulting from improper registration ; it merely directed such proceedings as would have been right beforo, according to the interest of the caveator being logal or equitable, and made notice of that proceeding upon the Registrar a stop to him.—Hodgson v. Hunter, 3 A.J.R., 1 3 ; and see Geraghty v. Russell, 5 A.J.R., 89; and Archibald v. Archibald, 5 V.L.R. (Eq.), 180.

The court it was said, under the former practice, had jurisdiction under this soction to proceed by rule nisi and absolute to restrain the Registrar from bringing land under the Act, where no other proceedings at law or in equity « ere open to a caveator.—Ex parte Gunn, 3 V.L.R. (L.), 36.

A person who has acquired title by adverse possession has a right to restrain a person having title by deeds from applying for a certificate of title to land under the Transfer of Land Act.

Ex parte Brown (5 V.L.R. (L.), 5) overruled.— Bethune v. Porteous, 19 V.L.R., 161.

I t was held that there was a jurisdiction in equity to entertain an information filed by the Attorney-General for a declaration of tho title of the Crown to an escheat, and for an injunction against any dealing with the land by tho Registrar, although the information showed a lqgal


32 . After an application has been made to have any land brought Transfer of under the operation of this Act, a judge may require all persons having «a35. ct 1890

in their possession or custody any deeds instruments or evidences of title A judge may relating to or affecting the land the subject of such application to pro- production of cluce<a> the same at the Office of Titles to the Commissioner and to any support ?in Examiner of Titles for his inspection, upon such terms and subject to ^ Tan™ toi such conditions and for such charge or fee as the judge making the the Act. order thinks just and fixes. All applications to be made to a judge under this section may be made by summons in chambers by the applicant owner or by the person to whom he has directed a certificate of title to be issued.(il)

3 3 . An applicant may withdraw his application at any time prior Applicant may to the registration of the certificate ; and the Registrar shall in such i hcSion.18

case return to the applicant or to the person appearing by the applica- n.«. ae. tion to be entitled thereto all muniments of title lodged in support of the application; but in such case, if a caveator has been put to expense without sufficient cause by reason of such -application, he shall be entitled to receive from the applicant such compensation as a judge on a summons in chambers deems just and orders.(c)

34 . Upon registering a certificate of title, the Registrar shall Deeds to be endorse upon the last material registered document lodged in support part of land

of the application a memorandum that land included in such document isbrou hfunder has been brought under this Act, without specifying the land or referring the Act and to the certificate in which the land brought under this Act is included, retained when and shall endorse a like memorandum on the memorial of such document underbroUfrht

in the Registrar-General's office and shall sign each such memorandum ; n. s. zi. and if the documents lodged relate to any property other than the

title in the Crown, and alleged no special grounds 6 W.W. & a'B. (L.), 81. of equitablo jurisdiction.—Attorney-General v. The plaintiff, a holder of certain land by adverse Hoggan, 3 V.L.R. (Eq.), 111. possession, brought an action against the defend-

A. died in 1853, and a will dated in 1850, pur- ant, who held the title by deeds, claiming specific porting to be his, was produced and acted upon performance of a contract for sale of the land, and by his widow and children until after her death also an injunction to restrain the defendant from in 1878. By it, property was devised to the proceeding with an application to have himself defendant. No claim was made by A.'s heir-at- registered as proprietor. At the trial the claim law, who died in 1868, leaving plaintiff his heir. for specific performance was abandoned, but an Plaintiff, in 1874, took out administration to A.'s injunction was granted. The plaintiff did not heir, and in 1878 a rule to administer A.'s estate invoke the special jurisdiction of the court under as intestate. The will was registered in 1863 this section, but no objection was raised either by and was traced to the widow's custody, and her the pleadings or at the trial to his proceeding by papers generally came to the plaintiff as her ordinary action to obtain the injunction. Held, executor. The defendant produced a memorial that the court had jurisdiction to grant the in-of it, but gave no evidence of the execution. junction, and that under the circumstances it was Upon bill by plaintiff to restrain defendant, as rightly exercised.—Bethune v. Porteous, 19 V.L.R., dovisee, dealing with the property under the 161. Transfer of Land Statute : Held, that the plaintiff (a) All persons having any claim to the land was entitled to an injunction until further order must have notice of tho summons to produce.— without proj\idice to tho question of title, which Ex parte Morgan. 4 A.J.R., 117. should be tried at law.—Archibald v. Archibald, (b) Per Stawell, C.J.—" Where a solicitor re-5 V.L.R. (Eq.), 180. tained deeds, claiming a lien on them for costs,

I t was formerly held that a judge in chambers and an application was made to compel their had no jurisdiction upon summons to make an production under this section: Held, that such order under the law then in force restraining a matter could be not disposed of in chambers." the Registrar from bringing land under tho Act. —In re Craig, 5 A.L.T., 54. To obtain such an order, the caveator must (c) A sum for such expense was allowed.—In either bring an action or file a bill.—Be Power, re Walker, 19 A.L.T., 32; 3 A.L.R., 133.


Transfer of Lund Act 1S90.

Subsisting lease to be endorsed and returned. lb s. 38

Record book to be kept of documents retained. lb s. 39.

Certificate of title to issue in name of deceased applicant or his nominee. lb. s. 40.

Registration of leaseholds. lb s. 41.

land included in such certificate, the Registrar shall return them to the applicant or to the person appearing by the application to he entitled thereto, otherwise the'Registrar shall stamp each of them as cancelled, and after he has so stamped them shall retain the same in the office ; and no person shall be entitled to an inspection of such documents or to have any copy thereof or extract therefrom without the written order of the applicant or of some person claiming through or under him or upon the order'®' of a judge or of the Commissioner. No action shall be brought upon any covenant or agreement for the production of the documents which are so retained or upon any agreement to give or enter into a covenant for the production thereof; and if any such action is commenced, it shall be a sufficient answer thereto that such documents are retained under this Act. But every person entitled to production under any such covenant or agreement shall be entitled to obtain from the Commissioner the order hereinbefore mentioned.

3 5 . Where any subsisting lease has been lodged, the Registrar shall, after he has endorsed the same as above provided in the case of the last material registered document, return such lease to the person lodging the same upon the applicant lodging with the Registrar a certified copy of such lease.

36 . The Registrar shall keep a book to be called the " Record Book " in which shall be kept a record of all deeds and documents produced and used in support of each application to bring land under this Act which hereafter is granted. Such record shall state briefly the nature and date of and parties to every such deed or document, by whom executed or signed, and whether registered under the general law or not, and if registered the date of such registration; and the record book shall be open for inspection by the public during the hours and days of business on payment of a fee for one hour's search therein of One shilling or such other fee as may hereafter be prescribed.

37 . lu case the applicant or the person in whose name the certificate of title has been directed to issue dies between the application and the registration of the certificate, it shall be registered in the name of such applicant or of such person (as the case may be); and such land shall devolve or pass in like manner as if the certificate had been registered prior to the death of such applicant or person.

38 . Land leased for a term of years of which ten years are unexpired, or leased for years determinable with a life or lives, may be brought under the operation of this Act as near as may be in a similar manner and subject to the same or similar provisions as are hereinbefore contained with respect to freehold land. The application may be made by persons having such estates and interests in the leasehold land as are similar or correspondent to the estates and interests of the persons

(a) An order of a judge to the Regis t rar t o produce the t i t le deeds of land under the Act, which deeds had been lodged in the Regis t rar ' s office, might (under an analogous repealed section) be made.—Slack v. Winder, 4 A.J .R . , 117.

An applicat ion unde r this section m a y bo mado ex parte.—Fisher v. Stuart, 7 A.L.T. , 45 j bu t in Friezer v. Kershaw, 17 A.L.T. , 41 , Hood, J., decided t h a t he would no t exercise tho jurisdiction on an ex parte appl icat ion.


entitled to apply to bring freehold land under this Act. Every certificate Transfer of of title to leasehold land shall always be subject to the rights and powers LandAa 189°-of the lessor or his representative and of any person entitled to the inheritance in the land immediately expectant on the term, as well as to the encumbrances hereinafter mentioned as not requiring special notification. The several provisions of this Act with respect to freehold land shall apply to leasehold land with such variations only as the difference in the nature of such property requires, or as are necessary to render such provisions applicable to leaseholds for years.

39 . Upon first bringing land under the operation of this Act, Percentage in whether by the alienation thereof in fee from His Majesty or consequent pJcPtoi" upon an application as hereinbefore provided, and also upon the utie.ranoe of

registration of the title to an estate of freehold in land under the n. s. a operation of this Act on a transmission, there shall be paid to the Registrar as an assurance fund a sum not exceeding the sum specified in the Twenty-sixth Schedule; and in the case of land brought under Twenty-sixth this Act by alienation in fee from His Majesty, the price paid for such Schedule-land shall be deemed to be the value thereof for the purpose of ascertaining such sum; and in the other cases such value shall be ascertained by the declaration of the applicant or by the statutory declaration of the person deriving such land by transmission. If the Registrar is not satisfied of the correctness of the value so declared, he may require such applicant or person to produce a certificate of such value under the hand of a sworn valuator, which certificate shall be received as conclusive evidence thereof.

4 0 . On an application to bring leasehold property under this Act, on bringing the amount to be paid into the assurance fund under the last preceding Aclt^to'bf" section shall be based on the value of such leasehold, to be ascertained ^„e°J,the

or certified to in manner authorized by the said section. leasehold. lb. s. 43.

4 1 . On any application to bring land under this Act, the Com-Production of missioner may dispense with the production of any lease and may accept dispensed wtth the memorial of the registration thereof as sufficient evidence of its o n i > r i n . s i ? B land

-i • n \ - I T T i - i e -i under Act.

contents; and if the memorial does not disclose any right of renewal or /&. g.u. purchase, no such right shall be assumed to have existed and the lease shall be deemed to have expired at the time at which it would have expired according to the date and term appearing in the memorial.

42 . Whensoever in any memorial received under any Act concerning certain the registration of instruments relating to or affecting land the instru- pre™Ssls under

ment purporting to be registered is stated under the heading "nature toê'sStaSent'8

of instrument" to be a release or a conveyance or a reconveyance, such evidence of memorial may for the purpose of bringing land under this Act be f°e

nveyances m

deemed by the Commissioner sufficient evidence of the instrumentIb-8-45-referred to being a conveyance in fee simple of the lands described in such memorial, unless the contrary can reasonably be inferred from the prior or subsequent title or from something appearing on the face of such memorial. For every memorial which is acted on as the evidence of a conveyance in fee, there shall be paid to the assurance fund in augmentation thereof an additional sum of One pound.


fifteen years.

Additional indemnity fund for imperfect title. lb. *. 47.

Transfer of 4 3 . Where for the purpose of bringing land under this Act a Land Act ism ' m e m o r i a i i s acted on as evidence of a conveyance in fee under No fee payable the provisions of the last preceding section no payment to the memorial in case assurance fund shall be required for acting on such memorial where 2L??.ss?.s.s.i?"for it appears to the Commissioner that the applicant has or the

applicant together with those under whom he claims have been in continuous possession of the land included in such memorial for a period of not less than fifteen years.

44 . Notwithstanding anything hereinbefore contained, the Commissioner may, after the publication of such advertisements as lie deems fit, direct the Registrar to bring any land under the operation of this Act upon the applicant contributing to the assurance fund such an additional sum of money as the Commissioner certifies under his hand to be in his judgment a sufficient indemnity by reason of the non-production of any document affecting the title or of the imperfect nature of the evidence of title, or against any uncertain or doubtful claim or demand arising upon the title.(0)

4 5 . An office copy of any order heretofore made or whieh hereafter is made by the Supreme Court (whether such order hereafter is in the form of an order confirming the report of the Master-in-Equity or the certificate of the Chief Clerk or in any other form) confirming a person as the purchaser of any land sold in fee simple under or in pursuance of any decree or order of such court, together with an office copy of such decree or order and such certificate of payment as is hereinafter mentioned may, for the purpose of bringing land under this Act, be deemed by the Commissioner sufficient evidence of the title of the purchaser to such land, subject to any estate or interest appearing by the decree or order or order of confirmation or subsequently created and registered. Every order of confirmation of a purchase which hereafter is made shall be drawn np so as to refer to a schedule thereto containing the name and addition of the purchaser, and a description of the land purchased by him ; and the Master-in-Equity and Chief Clerk are hereby required, after payment and acceptance of all the money payable in respect of any particular purchase, to give upon any such office copy order of confirmation a written certificate that the purchase money and all interest in respect thereof payable by any purchaser named in such certificate for any land therein referred to has been wholly paid.

Old roads how 4 6 . Whenever the council of any municipality under Part XVIII . AcTfndtrans- °f the Local Government Act 1915 by order directs that any land ferredby taken purchased or acquired by them shall be a public highway and be municipality* .

n. s. 49. deemed to be dedicated to the public accordingly, and that any land

The title to land sold under an order or decree may be deemed sufficient.

lb. 8. 48.

(a) A trustee having power to sell or mortgage executed a mortgage containing a power of sale in case of default of payment, upon one month's notice. Upon an application by the purchaser under the power of sale to bring the land under the Act, the Commissioner refused to register the land. This was held to be a case for an additional indemnity to the assurance fund, and that the title should be registered on such indemnity, as might be required by the Commissioner, being given.—In re Salter, 2 V.R. (L,.), 113.

The Commissioner of Titles is the sole judge of the sufficiency of the indemnity in the cases mentioned under this section, but, on tendering the proper fee, an applicant is entitled to be supplied with such information as will onablo such applicant to ascertain—(1) what document it is alleged has not been produced; (2) in what respect the evidence of title is said to be imperfect; or (3) what doubtful claim or demand is supposed to have arisen upon the title.—In re Swallow and Ariell Limited, 20 V.L.R., 308.


thereby dedicated to the public shall be in lieu of any existing street Transfer of

or road named in such order, and the Governor in Council hasLand Act 1890' confirmed the same, the publication of such order together with the confirmation thereof in the Government Gazette shall have the effect of bringing under the operation of this Act such existing street or road if not already under this Act, and if an instrument of transfer of such existing street or road under the common seal of such municipality is presented to the Registrar accompanied by the Government Gazette containing the notice required by section four hundred and seventy-nine of the Local Government Act 1915 the Registrar shall proceed to register such transfer in like manner as if it had been accompanied by a certificate of title in the name of such municipality to the street or road purporting to be so transferred.<a>

PART III.—CERTIFICATES OF TITLE AND REGISTRATION.

4 7 . Certificates of title shall be in duplicate in the form in the certificates of Third Schedule hereto; and the Registrar shall keep a book to be

duplicate. called the "Register Book," and shall register or enter by binding up n.s.&o. therein one of the grants and one of the certificates of title, and shall Th,rtl schedule, deliver the other original (hereinafter called the duplicate) to the rnTlntries011

proprietor. Each grant and certificate shall constitute a separatetherem-folium of such book; and the Registrar shall endorse thereon in such manner as to preserve their priorities the particulars of all dealings and matters affecting the land by this Act required to be registered or entered.

4 8 . Every duplicate or special certificate of title hereafter to be certificates to be issued shall be on parchment. One certificate of title may be issued onnertuirate for several parcels of land though the same are not contiguous if in the mXndsSnotd

opinion of the Registrar their relative positions can be sufficiently and contiguous,

conveniently shown upon the plan on the certificate; and in any case in Ib-s-61-which it is inconvenient to draw the plan in the margin of a certificate it may be drawn upon the back thereof or upon a sheet annexed thereto.

4 9 . I t shall not be necessary to mention the area of any parcel of Area onand land included in a certificate where the area of such parcel is less than mentioned in one acre, and the omission to refer to the area of the laud comprised in ™" ™e' a certificate shall not in any case invalidate the certificate.

50 . Before the delivery of any duplicate grant or certificate of title, Receipts may be a receipt for it in the handwriting of the proprietor may be required to du icate^knts be signed by him when practicable, so as to prevent as far as may be and certinoates-personation.(6)

5 1 . Every grant and every certificate of title shall be deemed and Grants and J ~ - - - - - - - certificates of taken to be registered under this Act when the Registrar has marked title registered

thereon the volume and folium of the register book in whicli the same regist boo"!1" is entered; and every instrument purporting to affect landW under the

(a) See also section 480 of the Local Govern- the Act.—Fitzgerald v. Archer, 1 W.W. & a'B. ment Act. (L.), 40.

(6) .The Registrar-General is not bound to issue (c) Where a power of attorney did not authorize a certificate of title to a purchaser from a Crown the execution by the attorney of a creation of grantee until the Crown grant to the original easement under this Act over land of which the grantee is delivered up to be cancelled under principal was the registered proprietor, but where


Transfer of operation of this Act shall be deemed and taken to be registered when a Land Act 1890 m e m or i a l thereof as hereinafter described has been entered in the register Instruments book upon the folium constituted by the grant or existing certificate of memo™? when title; and the person named in any grant certificate of title or instru-"nterefun3 been m e n t s 0 registered as the grantee or as the proprietor of or having any register book, estate or interest or power shall be deemed and taken to be the duly

registered proprietor thereof.

Registration of mortâg'es Ac. and transfers of mortgages of leases &<., how effected.

Transfer of Land Act 1904 8. 2.

52 . Every transfer of a mortgage or charge and every transfer or mortgage of a lease or sub-lease shall notwithstanding the provisions of the last preceding section be deemed and taken to be duly registered when a memorial thereof as described in section fifty-eight has been endorsed on the mortgage charge lease or sub-lease respectively so transferred or mortgaged, and it shall not be necessary to enter such memorial in the register book upon the folium constituted by the grant or existing certificate of title ; and in every case where before the eighth day of November One thousand nine hundred and four such a memorial as aforesaid lias been endorsed upon any mortgage charge lease or sub-lease but not entered in the register book upon the folium constituted by the grant or certificate of title, such endorsement shall be and shall be held to have been from the time such endorsement was made a valid and effectual registration of the transfer or mortgage specified in such memorial and in all respects and for all purposes shall be of the same effect as if at the time such endorsement was made a memorial of such transfer or mortgage had been entered in the register book upon the folium constituted by the grant or certificate of title.

Instruments may be in duplicate. Instruments entitled to priority according; to date of registration Transfer of Land Act 1890 8 65.

5 3 . Every instrument presented for registration^ may be in dupli-cate(fc) (excepting a transfer whereon a new certificate of title is required) and shall be registered in the order of and as from the time at which the same is produced for that purpose ; and instruments purporting to affect the same estate or interest shall, notwithstanding any actual or constructive notice, be entitled to priority'0) as between themselves according to the date of registration and not according to the date of the instrument. Upon the registration of any instrument in duplicate, the Registrar shall bind up one original in the register book, and shall deliver the other (hereinafter called the duplicate) to the person entitled.

ho had executed such an instrument, inasmuch as it purported to transfer and grant an incorporeal hereditament: Held, it was an " instrument purporting to affect land " within the meaning of this section, and therefore upon registration under tbis section the grantee, in the absence of fraud, became the registered proprietor of the easement of right-of-way mentioned in the instrument, and was entitled to exercise his rights accordingly.— Magor v. Donald, 13 V.L.R., 255. But see Messer v. Oibbs, 1891 A.C., 248.

(a) The Act imposes on the Registrar the judicial duty of examining into the validity of documents presented for registration.—Ex parte Bond, 6 V.L.R. (L.), 458; but see Ex parte Wise-

would, 16 V.L.R., 149, and cases cited in note to Preamble to this Act.

(6) Each part of the duplicate lease registered is an original, and a memorial of transfer endorsed on the " duplicate" is sufficient evidence of the transferee's title.—Ettershank v. The Queen, 4 A.J.R., 132.

A duplicate certificate of title is admissible as primd facie evidence of title in ejectment.— Wilkinson v. Brotvn, 1 V.R. (L.), 86.

(c) As to priorities whore interests are not registered, see Barnes v. James, 27 V.L.R.,, 749; General Finance Co. v. Perpetual Executors, die, Association, 27 V.L.R., 739.


54. Any lease or mortgage presented for registration may be in Transferor triplicate, and upon the registration thereof as provided by the last tfed Act 189° preceding section the parts not retained shall be delivered to the Leases and

person presenting the lease or mortgage for registration ; but in bTnftnpncate. every case of registration in triplicate the word triplicate shall be perforated through each instrument, and the words "lessor's par t" shall be perforated through one lease and the words " lessee's par t" through the other of the two leases returned, and the words " mortgagor's par t" shall be perforated through one mortgage and the words " mortgagee's^ par t" through the other of the two mortgages returned.

5 5 . The Registrar shall not enter in the register book notice of any NO notice of trust'"' whether express implied or constructive; but trusts may be de- eSerwUn6

clared by any document, and a duplicate or an attested copy thereof may register book, be deposited with the Registrar for safe custody and reference ; and the dS-mg trusts Commissioner should it appear to him expedient so to do may protect in "^ t ed but any way he deems advisable the rights of the persons for the time not registered, being beneficially interested thereunder or thereby required to give anyIb- '•57' consent; but the rights incident to any proprietorship or any instrument dealing or matter registered under this Act shall not be in any manner affected by the deposit of such duplicate or copy nor shall the same be registered.

56 . After the passing of this Act any transfer lease mortgage or power to make charge under the provisions of this Act may be executed to the trustees LTue ceTtmcates for the time being of any trust registered under the provisions of Part ^ j ; ' ^ ^ / 1 1 0

I I I . of the Trusts Act 1915, describing them as such trustees as afore- registered tmsts said and stating that the trust is registered under the provisions of the fb

c '_ said Part, and describing such trust so as to identify it with the description of the same in the Register of Successory Trusts, and a certificate of title may be issued to such trustees by the same description, but no such description shall be deemed to affect any person with notice of the trusts or entitle require or concern any person to inquire into or ascertain such trusts; and the persons for the time being registered as trustees of such trust in the Register of Successory Trusts shall be deemed the registered proprietors of the property comprised in such transfer lease mortgage charge or certificate of title.

5 7 . No instrument affecting land of which any person is re-Part xin. of gistered as proprietor under this Act or any memorial of any such fiM5°not to instrument shall be registered under Part XI I I . of the Real Property ^ ^ t ^ A c t . Act 1915; and such Part so far as it relates to any land which is Ib s_69. under the operation of this Act shall be and be deemed to be of no force or effect whatever.'6'

58 . Every memorial entered in the register book shall state the Memorial _ . V _ . . . . . . o - .. ,. .. . . . defined.

Ib. s. 60. nature of the instrument to which it relates, the time of the production deflned

of such instrument for registration, the names of the parties thereto;

(a) See Drake v. Templeton, 16 C.L.R., 153. complied with by registration under this section. (6) The provision in section 235 of the Com- —In re Coronation Syndicate CM. Co., 1911

panies Act 1890, requiring registration of a mort- V.L.R., 78. See now section 341 of the Com-gage by a raining company as a condition pre- panies Act. cedent to validity, was held to have been sufficiently

VOL. V . — 2 Q


Transfer of and shall refer by number or symbol to such instrument; Lani Act 1890 ^ - ^ h j ^ B e g i g t r a r t (a)

and shall be

Memorial to be entered on duplicate instrument. lb. s. 61.

Certificate of registration to be evidence.

Seal of office substituted for signature of Registrar in certain cases. lb. s. 62.

Instruments not effectual until registered. lb. s. 63.

5 9 . Whenever a memorial of any instrument has been entered in the register book, the Registrar shall (except in cases wherein the entire land contained in any grant or certificate is transferred) enter the like memorial on the duplicate grant or certificate and on the duplicate instrument (if any) unless the production of the same is dispensed with as hereinafter provided; and he shall endorse on every instrument registered a certificate of the time at which the memorial was entered in the register book, and shall authenticate such certificate by signing his name thereto; and such certificate shall be received in all courts of law and equity as conclusive evidence that such instrument has been duly registered.®'

60 . Notwithstanding the two last preceding sections, it shall not be necessary for the Registrar to sign any memorial entered in the register book or any certificate endorsed by him on any registered instrument which is to be retained in the Office of Titles, but in lieu of such signature the seal of the Office of Titles shall be attached to every such memorial and certificate together with the initials of the officer attaching the same ; and such certificate and memorial shall be received in all courts as conclusive evidence that such instrument has been duly registered; and all courts judges and persons acting judicially shall take judicial notice of such seal and initials and shall presume that such seal was properly affixed and that such initials were properly attached.

6 1 . No instrument until registered in manner herein provided shall be effectual to pass any estate or interest in any land under the operation of this Act(o) or to render such land liable to any mortgage or charge ;W) but upon such registration the estate or interest comprised in the instrument shall pass or (as the case may be) the land shall become liable in manner and subject to the covenants and conditions set forth

(a) Semble, the provisions of this soction aro directory.—Attorney-General v. Goldsbrough, 15 V.L.R., at page 643.

(6) The endorsement on the duplicate is conclusive evidence of the time of registration.—See Great Central Freehold Mines v. Chapman, 29 V.L.R., 940.

(c) Instruments executed in the form provided by the Transfer of Land Act are not, previous to registration, void of all effect except as to conveying, passing, or conferring estates or interests and rights in land. They may, before registration, have effect as contracts between the parties to them, or operato as securities springing from tho contract from the date of signing ; and acts done by the parties under and in accordance with tho contracts, before registration, may, as between tho parties, be valid and effectual.—Mathieson v. The Mercantile Finance and Agency Company Limited, 17 V.L.R., 271.

Held, by Webb, J., that, even though a lease might be inoperative under the Transfer of Land Act, because not registered, the covenant by the defendant to pay rent contained in such lease was operative, and the plaintiffs should therefore

recover the amount of rent owing.—Munro v. Adams, 17 V.L.R., 703.

This section is to be read with reference to the land only, and an unregistered lease is valid and binding as' between the parties to it.—Morrissy v. Clements, 11 V.L.R., 13.

A lease under section 297 of the Local Government Act 1890 (see now section 332 of tho Local Government Act) was held to be altogether outside the provisions of this Act and, though not registered, binds land held under that Act.— Kirhham v. Julian, 11 V.L.R., 171. See now s. 72.

Inasmuch as by this section no instrument, until registered as by this Act provided, is effectual to pass any estate or interest in any land under the operation of this Act, an assignment of a contract for the purchase of land under this Act, which has not been registered, is not an instrument " whereby any property upon the sale thereof is legally or equitably transferred to or vested in the purchaser" within the meaning of tho Stamps Act so as to be liable to stamp duty under that Act.—Johnson v. McKell, 19 V.L.R., 62.

(d) A certificate of title of land under this Act, and a transfer by the registered proprietor to A.,

No. 2740.] TRANSFER OF LAND ACT 1915. 4595'

and specified in the instrument or by this Act declared to be implied Tra/nsfer of in instruments of a like nature; and if two or more instruments Land Act 189°" signed by the same proprietor and purport ing to affect the same estate or interest are a t the same time presented to the Registrar for registration, he shall register and endorse tha t instrument which is presented by the person producing the duplicate gran t or certificate oftitle.'")

8 2 . The proprietor of land under the operation of this Ac t shal l be Proprietor of entitled to receive a certificate of title to the same; and if any certificate certiflcateofto

is issued to a minor or to a person under any other disability, the Mie-Registrar shall state the age of such minor or the nature of the person under disability so far as known to him.»> debility tite

stated. . . . lb. »• 64 .

6 3 . Two or more persons who are registered as joint proprietors personsregis-of land shall be deemed to be entitled to the same as joint tenants; proprietors"!) be and in all cases where two or more persons are entitled as tenants in J°int tenants. common to undivided shares of or in any land, such persons may receive ^* ' t ^ a n t jn

one certificate for the entirety or separate certificates for the undivided common may alio .at. receive a distinct SUaieS. certificate ot

title. 64 . Upon the transfer of any land and upon the lease of any free- insertion ot the

hold land to two or more persons as joint proprietors with the words su°rWvorsh°ip" " no survivorship" endorsed thereon, the Registrar shall enter such t» operate to

- i - i • l p i n i i i • n P revent other words in the memorial of such transfer or lease and also upon any certm- persons than cate of title issued to such joint proprietors pursuant to such transfer dealing with the and sign his name thereto. Two or more joint proprietors of any land jjj withoutan or of any such lease or of any charge may by writing under their hands n.». ee. direct the Registrar to enter the words " no survivorship " upon the grant certificate of title or instrument relating to the property. In every case after such words have been signed by the Registrar, whether under this or any preceding section, it shall not be lawful for any persons other than the proprietors registered to transfer or otherwise deal with the property without the order of the Supreme Court or a judge thereof obtained on motion or petition or the order of the Commissioner. for a nominal consideration, were lodged by A. the old law ; and, under the new law, until a person with the bank as security for an overdraft without has completed his title by getting his transfer the bank having notice of any claim to the land registered, he is just as amenable to notice, by any person other than A. The transfer was The policy of the Act is that when once registration not registered. Held, that the bank was not is effected, the holder of a certificate of title shall entitled to hold the land as a security as against have a good title, whether he had notice or not of the registered proprietor. Semble, the bank would outstanding equitable interests ; but the whole have been protected if the transfer had been scheme providing for caveats is to prevent him registered.—Plumpton v. Plumpton, 11 V.L.R., from obtaining a clean certificate while any rights 733; see also Mayor of Brunswick v. Dawson, 5 are outstanding in others. Till the transfer is V.L.R. (Eq.), 2 ; and Taylor v. Land Mortgage actually registered, a person having an equitable Bank, 12 V.L.R., 748. interest in the property can stop the issue of such

(a) Per Webb, J.—"The Statute was never a certificate."—Cowell v.Stacey, 13 V.L.R., at page intended to abolish the entire principle of notice, 84. And see notes to section 78. and to provide that a man getting a transfer (6) Semble, the court will order a certificate to when he had notico of another's rights might have issue to the person entitled to bo registered as it registered and defeat those rights. The prin- proprietor, although a certificate in respect of the ciple of notice still exists as it did before the Act. same land has already issued to another, and Notice of an equitable interest in another given cannot be recalled, under section 80.—Ex parte to a purchaser before ho had completed his title Patterson, 5 A.J.R., 128. by procuring a conveyance was sufficient under

2 Q 2


Transfer of Land 6 5 . Before making any such order the court or judge or Com-A<*im».G7. missioner shall cause notice of the intention so to do to be advertised published before once at least in one newspaper published in the city of Melbourne or oMer.IS ffiven *° circulating in the neighbourhood of the land, and shall appoint a time

within which it shall be lawful for any person interested to show cause against such order being made; after the expiration of which time it shall be lawful for the said court or judge or Commissioner to give directions for the transfer of such land or lease or charge to any new proprietor or proprietors solely or jointly with or in the place of any existing proprietor or proprietors or to make such order in the premises as is just for the protection of any persons beneficially interested in such property or in the proceeds thereof; and on such order being deposited with the Registrar he shall make such entries and perform such acts for giving effect thereto as the provisions of this Act render necessary.

Advertisement 66 . The Commissioner in any case within the sixty-fourth dispensed with, section in which members of friendly societies are interested may before

making an order thereunder dispense with the advertisement required by the sixty-fifth section.

67 . No certificate of title issued upon an application to bring land under this Act or upon an application to be registered as proprietor on a transmission shall be impeached or defeasible by reason or on account of any informality or irregularity in the application or in the proceedings previous to the registration of the certificate; a,nd every certificate of title'0' issued under any of the provisions herein contained shall be received in all courts of law and equity as evidence of the particulars therein set forth and of the entry thereof in the register book, and shall be conclusive evidence that the person named in such

lb. s. 68.

Certificate to be conclusive evidence of the title. lb. s. 69.

(a) As regards the parcels, a certificate is under this section incontrovertible, and the " reservations and exceptions " mentioned in section 72 have no reference thereto.—Alma Consols CM. Go. v. Alma Extended Co., 4 A.J.R., 190.

Where the description of land in a certificate, giving the area approximately, is merely by a plan on the margin showing abuttals at each end on a street, the dimensions of the boundary lines being also marked, but falling short of the actual distance between such two streets, the position shown by plan will govern to the exclusion of the figured, dimensions, which will bo considered falsa demon-stratio.—Small v. Glen, 6 V.L.R. (L.), 154.

Plaintiff's certificate of title referred to a plan in its margin, which showed by figured dimensions that the commencing point of his land was 76 feet north from the north-east angle of a certain allotment 2. Defendant's certificate of title also referred to a plan in its margin, which showed by figured dimensions that the commencing point of her land was 59 ft. 6 in. north from the same north-east angle, and that her land extended further north 16ft. 6in., thus making its northern boundary coterminous with plaintiff's southern boundary. There was nothing on the face of either certificate to fix where upon the land the north-east angle of allotment 2 was, but its position ' in fact was proved by evidence aliunde. Defendant was in possession of land lying between points 76 feet and 78 ft. 4J in. north of that angle as so

proved, thus apparently encroaching 2 ft. 4-J in. on plaintiff's land, to recover which the action was brought. Defendant proved that, measuring southwards from an old peg found at the angle of two streets, there was a distance of 531 ft. £ in. between that peg and the north-east angle of allotment 2, which showed an excess of 3 ft. £ in. between theso points according to a plan of subdivision produced, and if the measurement were taken from that peg, there would be no encroachment by the defendant. Held, that the north-east angle of allotment 2, being the point from which the figured dimensions were shown in the certificates of title, that point, and not the old peg, must be taken as the starting point to determine the position of the boundary line between plaintiff's and defendant's land.—Kirkham v. Carpenter, 12 V.L.R., 144.

In an action for recovery of land alleged to be encroached upon by defendant's building, the parcels of the plaintiff's certificate showed his land as part of allotment 2, and the plan thereon showed the same, and also that allotment 1, between it and the corner of the public street, was 66 feet in width; and his evidence 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 wero no figures showing the distance between her land a,nd the corner of the said street; and her evidence


certificate as the proprietor of or having any estate or interest in or Transfer o/ power to appoint or dispose of the land therein described is seised or i a n d Act 1890-possessed of such es ta te or in teres t or lias such power.'"'

68 . Whenever any certificate of title or any duplicate thereof Certificate con-

either already registered or issued or hereafter to he registered or issued as Ttltirfo™06

under any of the provisions or otherwise under the operation of this Act easements, contains any statement to the effect that the person named in the n'"'70' certificate is entitled to any easement therein specified, such statement shall be received in all courts of law and equity as conclusive evidence that he is so entitled.<6>

6 9 . Whenever anv such certificate of title as aforesaid contains the Effect in

words " Together with "a right of carriage-way over " ^ d " ^ ^ [specifying or describing the road or roads over which the easement is <*> easements. created and referring to a map endorsed whereon such road, or roads is n' *'n"

showed that her wall was placed in a line with the original allotment peg between the two allotments, and that there was a surplus in allotment 1. Held, 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.—Stevens v. Williams, 12 V.L.R., 152.

(a) In an action for recovery of land the defendant will not be allowed to call evidence to show that tho certificate had been granted in ignorance of a material fact—that notice of the application for a certificate had not been served on the owners of the adjoining property. The whole object of the Act is to give the greatest confidence in those certificates, and the court cannot allow the supposition to be entertained that it has any doubt on the point.—Ohisholm v. Capper, N.C., 60.

Per Webb, J.—" After full consideration of the whole subject, I am of opinion that the proper construction of the Act is, that a certificate of title when once issued is made conclusive evidence of title, with this exception, that, in case of fraud, it is not conclusive in favour of the person guilty of the fraud, or of a person claiming under him with notice of the fraud ; or to express the same idea in another form, a certificate of title obtained by fraud is voidable only and not void, and may become indefeasible either wholly or pro tanto by matter ex post facto, e.g., where there has been a transfer to a purchaser or mortgagee, as the case may be, for value and without notice. The effect will be that if a person whose land has been fraudulently taken from him can intercept it in the hands of the committer of the fraud, he may recover it back from him."—Messer v. Gibbs, 13 V.L.R., at pages 868 and 869. But in the same case in the Privy Council, 1891 A.C., 248, it was held that even a bond fide purchaser for value must ascertain at his own peril the existence and identity of a registered owner the authority of any agent to act for him and the validity of the instrument under which the purchaser claims.

Per Webb, J.—" A registered proprietor under the Transfer of Land Statute, a purchaser for value

and without notice of the forgery, acquires by virtue of the Act an indefeasible title to the estate or interest of which he is registered, even although such registration may have been effected by means of a forged instrument."—O'Connor v. O'Connor, 9 A.L.T., 117. But see Messer v. Oibbs, supra.

As to this section, see also In re Wise, 2 V.R. (L.), I l l ; and Wilkinson v. Brown, 1 V.R. (L.), 86; Miller v. Moresey, 2 V.R. (L.), 193 ; 2 A.J.R., 115 ; McCahill v. Henly, 4 V.L.R., (E.) 68.

Where, by an error in survey, land under the general law owned and occupied by B. is included in a certificate of title, issued to A., A. does not thereby acquire any estate or interest in such land.

Where a plaintiff alleges that he is seised in-fee of certain lands, and uses a certificate of title t o prove it, it is open to a defendant who has simply denied the allegation in his defence to show tha t the certificate is not conclusive, owing to the land in question being included therein by wrong^ description of boundaries.

Where the same piece of land is included in two certificates of title, ordinarily the prior certificate is conclusive, but this is not so where the land has been included in the prior certificate through a wrong description of boundaries, or where the holder of the subsequent certificate has acquired! rights to it by adverse possession before the issue of tho prior certificate.—National Trustees, dkc, Co. v. Hassett, 1907 V.L.R., 404.

(6) If the owners of the dominant tenement obtain a statement in the certificate under this provision, the certificate is conclusive, but the absence of such statement does not prevent the dominant proprietor from enforcing any easement appurtenant he is entitled to.—Stevenson v. James, 11 A.L.T., 107; 15 V.L.R., 615.

An easement appurtenant may be specified in the certificate of the dominant tenement, even against the will of the proprietor of the servient tenement.—In re Byrne, ex parte The Metropolitan Building Society, 10 V.L.R. (L.), 361 ; and as t o specifying easements, see Jones v. Park, 5 V.L.R. (L.), 167.


Transfer of or are coloured brown] such words shall have the same effect and shall Land Act 1890. ^ e c o n s ^ r u e ( j a g jf there had been inserted in such certificate of title the Fifth schedule, words contained in the Fifth Schedule.

Extension of Third Schedule to easements. lb. s. 12. Certificate to be conclusive evidence in suit for specific performance or action for damages. lb. s. 73.

Estate of registered proprietor paramount. Ih. s. 74.

70. The Third Schedule shall be deemed to extend to the setting forth of the easements mentioned in the two last preceding sections.

7 1 . In any action for specific performance or in any action for damages brought by a proprietor of any land under the operation of the Real Property Act No. 140 or of the Transfer of Land Statute or of the Transfer of Land Act 1890 or of this Act against a person who has contracted to purchase such land not having notice of any fraud or other circumstances which according to the provisions of the said Acts or any of them would affect the right of the vendor, the certificate of title of such proprietor shall be held to be conclusive evidence that such proprietor has a good and valid title to the land for the estate or interest therein mentioned or described, and shall in any such suit entitle such proprietor to a decree for the specific performance of such contract.

72 . Notwithstanding the existence in any other person of any estate or interest, whether derived by grant from His Majesty or otherwise, which but for this Act might be held to be paramonnt or to have priority, the proprietor of land or of any estate or interest in land under the operation of this Act shall, except in case of fraud,1") hold the same subject to such encumbrances as are notified'6' on the folium of the

(a) See notes to section 67. As to what will be considered " fraud " under

this section, see the observations of Molesworth, J.,ia Sobertscmv. Keith,l V.R. (Eq.) 11, at page 14.

•The word "f raud" in this section does not include fraud of the conveying party in acquiring title.—Cullen v. Thompson, 5 V.L.R. (Eq.), 147.

" Fraud " in this section means moral turpitude —actual dishonest dealing—and does not include •what is known as " constructive fraud."—Gregory v. Alger, 19 V.L.R., 565.

A father bought land and procured the certificate of title to be made out in the name of his son. The father's intention was that the son should

• have the land after his death, and that meanwhile ho (the father) should enjoy the estate with the understanding that the son should occupy and work the land, giving the father half the produce, and retaining the other half. In an action by the son to recover the certificate of title from the father: Held, that the presumption of an advancement was destroyed by the reservation by the father of a life estate, that the son was therefore a trustee for his father, and that the father was entitled to retain the certificate, and to have a (transfer of the land to him executed by the son. —McKie v. McKie, 23 V.L.R., 489.

A., the owner of land under the general law, executed a mortgage to one B. to secure a loan of £600. The mortgage was prepared by A., who

,was a personal friend of B., and acted as solicitor .for her.. ,A. told B. it was unnecessary to register the mortgage, as it would cost money, and'B.', although she understood what was meant by regis

tration, left it unregistered, and made no inquiry for and never received the title deeds. A. then executed a mortgage to C. to secure a loan of £2,000. C. himself never in fact executed the mortgage. C. made all reasonable inquiries into title, and took all reasonable precautions, and acted bond fide in ignorance of the mortgage to B. C.'s mortgage was duly registered, and on A.'s application the land was brought under the Transfer of Land Act, and a certificate of title was issued with the mortgage to C. as the only encumbrance notified thereon.

Held, that the mortgage to C. was "made and executed bond fide" and for valuable consideration within this section, and was entitled by virtue of its registration to priority over the mortgage to B.

Held, also, that B.'s conduct in leaving the mortgage unregistered and allowing the title deeds to remain with A., the mortgagor, amounted to such negligence as precluded her from asserting any .priority over the mortgage to C, and that the fact that the mortgagor was also her solicitor did not excuse her.

Held, also, that the issue of the certificate of title in the circumstances did not alter the rights of B. and C. inter se.—Davidson v. O'Halloran, 1913 V.L.R., 367.

(6) Where a certificate was issued to an assignee, subject to the rights of the various parties interested under a post-nuptial settlement: Held, •per Molesworih, J., that the mentioning of encumbrances on a certificate had no further effect under this section than to leave the rights under the settlement unaffected, though it might bo otherwise under section 74.—Shaw v. Scott, 3 A. J.R., 16.

•No. 2740.] TRANSFER OF LAND ACT 1915. 4599

register Look constituted by the grant or certificate of title; but abso- Transfer of luteiy free from all other encumbrances whatsoever, except the estate or ând Act l890

interest of a proprietor claiming the same land under a prior registered grant or certificate of title,'"' and except as regards any portion of land that by wrong description of parcels or boundaries is included in the grant certificate of title or instrument evidencing the title of such proprietor not being a purchaser for valuable consideration or deriving from or through such a purchaser.'6' Provided always that the land certain rights .which is included in any certificate of title or registered instru- need'notbe" ment shall be deemed to be subject to the reservations exceptions Mentioned as conditions and powers (if any) contained in the grant thereof, and to encumbrances, any rights subsisting under any adverse possession'0' of such land, and to any public rights of way and to any easements acquired by enjoyment or user or subsisting over or upon or affecting such land, and to any unpaid rates and other moneys which without reference to registration under this Act are by or under the express provisions of an Act of Parliament declared to be a charge upon land in favour of any responsible Minister or any Government department or officer or any public corporate body and to any leases licences or other authorities granted by the Governor in Council or any responsible Minister or any Government department or officer or any public corporate body and in respect of which no provision for registration is made and also where the possession is not adverse to the interest of any tenant'*' of the land,

(a) This exception does not apply to the case where a proprietor's land has been sold by the sheriff, a transfer under such sale has been registered, and a new certificate issued to the sheriff's vendee.—Hassett v. The Colonial Bank, 7 V.L.R. (L.), 380 and 389.

(b) This means a purchaser of the land described in the certificate.—Pleasance v. Allen, 15 V.L.R., 601.

(c) These words must be understood according to their original legal meaning, and not merely with reference to the Statute of Limitations.— Robertson v. Keith, 1 V.B. (Eq.), 11.

8ed contra.—Murphy v. Michel, 4 W.W. & a'B. (L.), 13 ; Staughton v. Brown, 1 V.L.R. (L.), 150.

Per a'Beckett, J.—" The effect of this provision is, as I have always understood it, and has been held by the court, to give the person in possession the same rights as he would have possessed if he was assailed by a person having good title at common law by deed of the land with reference to which the action was brought."—Lake v. Jones, 15 V.L.R., 728.

The right to bring an action to recover possession of land under this Act where the defence set up is adverse possession, having regard to section 19 of the Real Property Act, first accrues not at the time of the dispossession or discontinuance of possession of the plaintiff, but at the time of the actual possession of the defendant; and that, being necessarily more within the knowledge of the defendant than of the plaintiff, the burden of proof is upon the defendant.—Solomon v. Jarvis, 12 V.L.R., 878.

In an action of ejectment a certificate is only primd facie evidence of plaintiff's title-and his right to the possession, and may be met and defeated by evidence of possession for fifteen years

by others than the plaintiff, or those through whom he claims.—Murphy v. Michel, ubi supra; see also Lake v. Jones, 15 V.L.R., 728.

(d) The word " t enant" must be deemed to include every tenant who is in actual occupation, and holds under some landlord. The words " interest of any t enan t" imply that every interest in the land of such a tenant, which grows out of and is not disseverable from his right to continue in occupation as a tenant, is protected by the terms of this section against the claim of a proprietor under a certificate of title. The defendant was let into or allowed to remain in possession of land under a contract for the sale of the land to him by the vendor. The vendor, at the same time, transferred the land to the plaintiff society. Held, in an action of ejectment, the defendant being in possession of the land as tenant, that this, together with the contract of sale, constituted an " interest" to which the land was subject under this section, and that this claim must prevail against the claim of a proprietor, transferee of the certificate of title of the land, and that such transferee could not succeed in an action of ejectment. I t is not to be recognised as a principle of law that mere negligence can deprive a tenant of his statutory rights under this section.—Sandhurst, &c, Building Society v. Oissing, 15 V.L.R., 329.

The word " t enant" is used in the sense of " lessee."—Calvert v. Pate, A.R., 6th September, 1867. Sed quozre.

The word " tenant " includes tenant for life.— Black v. Poole, 16 A.L.T., 155.

A tenancy at will is " a n interest " within this proviso.—Colonial Bank v. Roache, 1 V.R. (L.), 165 ; 1 A.J.R., 136.

The defendant bought at a sheriff's sale, and became registered proprietor of, tho estate and

4600 TRANSFER OF LAND ACT 1915.' [6 GEO. V.

Tranifer of Land Act 1890.

notwithstanding the same respectively are not specially notified as encumbrances on such certificate or instrument.

Easements existing under deed or writing to be noticed as encumbrances. lb. s. 75.

Also building condition and condition giving power to resume or against alienation.

7 3 . Notwithstanding the reservation in the last preceding section of any easements subsisting over or upon or affecting any land comprised in any grant or certificate of title, the Registrar shall specify upon auy future certificate of such laud aud the duplicate thereof as an encumbrance affecting the same any subsisting easement'"' over or upon or affecting the same which appears to have been created by any deed or writing! And notwithstanding the proviso to the said last preceding section, the Registrar shall endorse as an encumbrance upon all future certificates of title and the duplicates thereof any special building condition or condition giving the Crown power to resume land for railway purposes, or condition against free alienation contained in any grant of the land described in such certificate and duplicate, and such endorsement may be in the words following or to the like effect (that is to say):—

"Special building condition contained in grant to [A. ./?.]" " Special railway condition contained in grant to [A. B.y " Condition against free alienation contained in grant to [ J . 2?.]"

and if in any such case such grant is entered in the register, book there shall be added to such indorsement the words "registered vol. fol. " together with the numbers of such volume and folio.

interest of W., who was the registered proprietor thereof. Part of this land had been previously sold by W. to the plaintiff who was in possession, but had obtained no transfer, of all which the defendant had express notice. Held, that his interest was that of a tenant within the meaning of this section.—Robertson v. Keith, 1 V.R. (Eq.), 11.

The purchaser of land obtained a certificate of title thereto, and agreed with the vendor that the balance of the purchase money should be paid at tho end of a year, and that the vendor should remain in possession of the land until such balance was paid, the vendor paying rent which was to be deducted from the balance of the purchase money when paid. Tho purchaser afterwards mortgaged the land by deposit of the certificates of title. In an action brought by tho mortgagees against the vendor to recover possession of the land: Held,, that until payment of the balance of the purchase monev, the vendor was a " t enan t" of the land within the meaning of this section, and that to his interest that of the mortgagee was subject.— Commercial Bank of Australia Limited v. McCaskill, 23 V.L.R., 10.

The right of the Crown to determine its lessee'*? estate is not affected by this section.—Malt v. Peel, 2 V.R. (M.), 27.

The object of this proviso is to prevent the severance of the relation of landlord and tenant. As regards the parcels of a lease, the certificate is incontrovertible.—Alma Consols Cold Mining Company v. Alma Extended Company, 4 A.J.R., 190. See as to parcels, per Stephen, J., in Small v. Glen, 6 V.L.R. (L.), at p. 157.

Semble, tho protection afforded to the tenant under this section does not extend to protect the

title of the landlord.—Cullen v. Thompson, 5 V.L.R. (Eq.), 147.

S. brought ejectment against D. D. was in under a tenancy from A., a former owner, who was decreed to convey to S. S. relied upon a certificate of title issued to him upon a conveyance pursuant to such decree. Held, that under this section S.'s certificate of title was subject to the rights of D.—Slack v. Downton, 1 A.L.T., 2.

The possession of a tenant of a mortgagor, under a tenancy created prior to the mortgago, is not adverse to the title of tho mortgagee. The tenant is not obliged voluntarily to attorn to the mortgagee, and cannot be ejected by the latter without a previous demand of possession.—The Colonial Bank oj Australasia v. Eabbage, 5 V.L.R. (L.), 462.

As to section 72 generally, see also Brew v. Jones, 2 V.R. (Eq.), 20 ; Cunningham v. Oundry, 2 V.L.R. (Eq.), 197 ; Colechin v. Wade, 3 V.L.R. (Eq.), 200 ; Moss v. Williamson, 3 V.L.R. (Eq.), 221; Ex parte Patterson, 4 A.J.R., 110: Lloyd, v. Mayfield, Argus 7th August, 1885, 7 A.L.T., 48.

Where plaintiffs produced their certificate of title, issued upon a mining lease, to show what tho certificate referred to, it was held that tho titlo might be impeached.—-Munro v. Sutherland, 5 A.J.R., 139.

(a) The omission by the Registrar to enter an easement as an encumbrance on the certificate of title of the servient tenement under this section does not relieve the servient tenement of its liability.—James v. Stevenson, 1893 A.C., 162, affirming Full Court (Higinbolham, C.J., Williams and Kerferd, JJ.), 15 V.L.R., 015.


74. The person named in any certificate of title as the proprietor Transfer of of an estate of freehold in possession in the land therein described shall %"$.Act 189° be held in every court of law and equity to be seised of the reversion AS to reversions and inheritance in the land immediately expectant upon the term of leases.

any lease that is mentioned as an encumbrance in such certificate, and to have all powers rights and remedies to which such a reversioner is by law entitled, and shall be subject to all the covenants and conditions in such lease to be performed and observed by or on the part of the lessor.

7 5 . On the application of any proprietor or of any person entitled Upon surrender

to become a proprietor of land under separate grants or certificates of gfraentfo?ff

title or under botli of such documents and on his delivering up the êTertificate duplicates thereof, the Registrar may issue to him a single certificate may be of title for the whole of such land or several certificates as to portions j6."

n7V

thereof in accordance with such application, so far as the same may be done consistently with any regulations for the time being in force respecting the parcels of land that may be included in one certificate of title; and upon registering any certificate under this section the Registrar shall cancel the grant or previous certificate, and shall endorse thereupon a memorandum setting forth the occasion of such cancellation and referring to the new certificate.

76. Such references shall be noted in the register book and on A history of the instruments filed hereunder as will allow the title to be traced either Meeting iandgto downwards from or upwards to the original certificate or grant ; but be Preserv«i. it shall not be necessary in any certified copy of any certificate grant

• or instrument to insert such references ; and every such copy shall be deemed complete, notwithstanding the omission of such references.

77 . Upon production of a receipt of the Treasurer of Victoria for Dealings may be

the full purchase money of any land sold by His Majesty in fee together tofssuTof crowli with an instrument dealing with such land signed by the purchaser, the »rant-Registrar shall endorse upon such receipt such memorial as he is herein Ib-s-n-required to enter in the register book upon the registration of any dealing of a like nature with land registered, and shall sign such endorsement, and shall endorse such instrument with the certificate of registration herein required on the registration of a like instrument after a grant has been registered, and so on from time to time with respect to any other dealings before the registration of the grant ; and every such instrument shall thereupon be held to be duly registered under this Act>> The Registrar shall file such receipt and instrument in the office, and upon the registration of the grant of the land he shall enter thereon a memorial of every dealing endorsed on such receipt, and issue a certificate of title to the then transferee of the land (if any).

78 . The Registrar with the consent of the Commissioner may Registrar may dispense with the production of any duplicate grant certificate of title duplicate grant

or duplicate instrument (if any) for the purpose of entering thereon the êgncertain

memorial by this Act required. In every such case upon the registra- n.«. so. tion of the dealing, the Registrar shall notify in the memorial in the

(a) See Richards v. Cadman, 17 V.L.R., 203, cited were not observed, see McCahiU v. Henty, 4 as note to section 178; and as to transfers before V.L.R. (E.), at page 68. issue of grant where the provisions of this section



Provision in case of lost grant. lb. s. 81.

register book that no entry of such memorial lias been made on the duplicate and such dealing shall thereupon be as valid and effectual as if such memorial had been entered thereon. The Registrar may with the like consent dispense with the production of the duplicate grant or certificate of title required to be delivered up prior to the registration of a devisee or other person on the transmission of an estate of freehold. Provided always that before registering such dealing or transmission the Registrar shall require proof by statutory declaration that the duplicate is not deposited or held as a security or lien,(a> and shall give at least fourteen days' notice of his intention to register such dealing in at least one newspaper published in the city of Melbourne or circulating in the neighbourhood of the land.

79 . In the event of the duplicate grant or certificate of title being lost or destroyed or becoming so obliterated as to be useless, the persons having knowledge of the circumstances may make a statutory declaration stating the facts and the particulars of all encumbrances affecting the land or the title thereto to the best of declarants' knowledge information and belief; and the Commissioner if satisfied as to the truth of such declaration and the bona fides of the transaction may direct the Registrar to issue to the proprietor a special certificate of title to such land; which special certificate shall contain an exact copy of the grant or certificate in the register book and of every memorandum and endorsement thereon, and shall state why such special certificate is issued; and the Registrar shall at the same time enter in the register book notice of the issuing of such special certificate and the date thereof and why it was issued; and such special certificate shall be available for all purposes and uses for which the duplicate grant or certificate so lost or' destroyed or obliterated would have been available, and shall be equally valid therewith to all intents. Provided always that the Registrar before issuing such special certificate shall give at least fourteen days' notice of his intention so to do in at least one newspaper published in the city of Melbourne or circulating in the neighbourhood of the land.'6'

Person to whom 80 . In case it appears to the satisfaction of the Registrar that instrument of any certificate of title or instrument has been issued in error'"' or cou-is'suedTn rror tains any misdescription of land or of boundaries, or that any entry or

(a) A deposit of a certificate by way of security for advances is valid.—London Chartered Bank v. Hayes, 2 V.R. (Eq.), at page 107, but qucere, whether a mere right of retention can be given. —Swan v. Seal, 10 V.L.R. (Eq.), 57.

A deposit of a certificate of title to land under the Transfer of Land Act as security for the payment of a debt gives to the depositee an interest in land within the meaning of the Act.—Tolley and Co. Limited v. Byrne, 28 V.L.R., 95.

(6) L., the registered proprietor of certain land under the Transfer of Land Act, deposited with the plaintiff in Western Australia a certificate of title to the land as the sole security for the payment of a debt. Subsequently L. made a statutory declaration alleging that she had lost the said certificate of title, and that there had been no dealings whatever by her with her interest in the said land, and the Commissioner, acting upon such declaration, and in accordance with the powers conferred upon him by section 79, and after ad

vertisement in a Melbourne newspaper, directed the Registrar of Titles (the defendant) to issue a special certificate of title to L. L. subsequently transferred the land to one 6., a purchaser in good faith and for valuable consideration, who became the registered proprietor of the land. L. afterwards became insolvent in Western Australia, without having paid to the plaintiff any part of the said dobt, which greatly exceeded the value of the said land.

Held, that the plaintiff had sustained " loss " within the meaning of section 252, and was therefore entitled to recover damages and costs out of the assurance fund.—Tolley and Co. Limited v. Byrne, 28 V.L.R., 95.

(c) Anything improperly done or omitted to be done may be considered an error within this

-section.—Ex parte Paterson, 4 A.J.R., 26. Per Stawell, C.J.—" This section prescribes the

mode by which a certificate of title ' issued in error' may be withdrawn. What is the meaning

No. 2740.] .TRANSFER OF LAND ACT 1915. 4603

endorsement has been made in error on any grant certificate of title or Transfer of instrument, or that any grant certificate instrument entry or endorse- LarÂct 189°-ment has been fraudulently or wrongfully obtained, or that any grant fuiiy retain"5

certificate or instrument is fraudulently or wrongfully retained, he may may beStrument

by writing require the person to whom such document has been so 8ummoned-issued or by whom it has been so obtained or is retained to deliver up the same for the purpose of being cancelled or corrected or given to the proper party as the case requires ;(a) and in case such person Person refusing refuses or neglects to comply with such requisition, the Registrar may certfn'cTte'for apply to a judge to issue a summons for such person to appear before correction™ °r

the Supreme Court or a judge and show cause why such grant certificate be crested and or instrument should not be delivered up for the purpose aforesaid; and junior the°rea

if such person when served with such summons neglects or refuses SuPreme Court-to attend before such court or a judge thereof at the time therein appointed, it shall be lawful for a judge to issue a warrant authorizing and directing the person so summoned to be apprehended and brought before the Supreme Court or a judge for examination.(i,)

8 1 . Upon the appearance before the court or a judge of any person Party appearing summoned or brought up by virtue of a warrant as aforesaid, it shall "iamhiedon be lawful for the court or judge to examine such person upon oath, and oath-(in case the same seems proper) to order such person to deliver up /6 's-8a

such grant certificate of title or instrument as aforesaid; and upon thedeiTvYryo'f" refusal or neglect by such person to deliver up the same pursuant to 'oXltTgfstrar. such order, to commit such person to gaol for any period not exceeding Incaseof six months unless such grant certificate or instrument is sooner negieot or

. . . . o . , J . I J ? I refusal Registrar delivered up; and m such case or in case such person cannot be found may issue a so that a requisition and summons may be served upon him as herein-fresh certincate-before directed, the Registrar shall (if the circumstances of the case require it) issue to the proprietor of the land such certificate of title as is herein provided to be issued in the case of any duplicate grant or certificate of title being lost or destroyed, and shall enter in the register book notice of the issuing of such certificate and the circumstances under which the same was issued.

82 . Every draft certificate of title from which an original certifi- in ease of lost cate is drawn shall be completed so as to accord in all particulars certificate copj with the certificate, and shall be preserved in the office until the can- JXututed tor cellation of the certificate; and at the time at which the certificate is the purpose of

of ' error ' ? Not in my opinion a mistake of fact —Ex parte Rigby, 9 V.L.R. (L.), 417. only, but also an error in law."—Ex parte Bond, The court will not grant a rule to compel the 6 V.L.R. (L.), at page 463. Registrar to call in a certificate of title granted to

Where, by an error in survey, land under the the wrong person, upon an analogy to the pro-goneral law owned and occupied by B. is included ceoding upon this section, especially where the in a certificate of title issued to A., A. does not applicant has not proved his right to a certificate, thereby acquire any estate or interest in such land. —Ex parte Slack, 4 A.J.R., 114. —-National Trustees, die., Co. v. Ilassett, 1907 (b) See as to this section, in the case of an equit-V.L.R., 404. able mortgage of the certificate without notice,

(a) Where an applicant to bring land under the Ex parte Patterson, 4 A.J.R., 110, cited in note to Act obtained a certificate of title by incorrectly section 179. representing that the person in possession was only Under this section the Registrar has a discretion, a trespasser, the court ordered that such certi- with which the court will not interfere by com-cato should be delivered up to be cancelled, it pelling him to state his grounds, in determining being shown that the certificate holder had failed whether it has appeared to his satisfaction that a in an action of ejectment against the person in certificate should be called in as issued in error.— possession, by reason of his setting up a right by Ex parte The Mutual, &c., Society, 11 V.L.R., 166. possession for the statutory period of limitation.


Transfer of Land Act 1890. dealing's and transmissions. lb. s 84. Transfer of Land .40(1903 B.i.

Registrar may call in duplicate certificate on sale by sheiiff or mortgagee or when required for cancellation rectification or inspection. Transfer of Land Act 1890 s. 85.

Person refusing to bring in duplicate or triplicate may be brought before court or judge. lb. s. 86.

registered a corresponding number to that upon the certificate shall be put upon the draft, and the draft shall be signed by the person signing the certificate; and in the event of any original grant or certificate being lost or destroyed or so obliterated as to become illegible, the Coni-missioner may canse another certificate to be prepared from the draft and to be endorsed with all such entries as were upon the original so far as the same can be ascertained from the records of the office and inspection of the duplicate, and shall make and sign a memorandum upon such document stating that the same is a substituted certificate to be used in place of the original, and what has become of the original so far as known or supposed, and from the date of such copy being so signed the same may be bound up in the register book and used in place of the original for the purpose of dealings and transmissions. If the draft cannot be found, the Commissioner shall be at liberty to prepare the substituted certificate from the duplicate or such other evidence as is available as to the contents of the original. Notwithstanding anything contained in this section it shall not be necessary that there shall appear or be shown on the draft certificate of title from which an original is drawn as provided in this section the map referred to in the certificate as " the map in the margin " thereof.

8 3 . On any transfer by a sheriff or mortgagee to a purchaser or under any decree judgment or order of the Supreme or County Court of any land estate or interest under this Act, or for the purpose of registering any instrument subject to a first mortgage or for the purpose of rectifying or cancelling any certificate under the provisions of this Act or for the purpose of inspection in case of loss destruction or obliteration of any original grant or certificate of title, the Registrar shall by writing under his hand require the judgment debtor mortgagor or mortgagee or proprietor of the land comprised in any duplicate or triplicate grant certificate mortgage lease or other instrument, or the person having the possession custody or* control of any such duplicate or triplicate, to bring the same into the Office of Titles within a period named in such requisition, not less than seven days from the date thereof, to be endorsed cancelled rectified or otherwise dealt with as the case requires.

84 . If any person refuses or neglects to comply with any such requisition as aforesaid, the Registrar or any person interested may apply to a judge to issue a summons for such person to appear before the court or a judge and show cause why the document mentioned in such requisition should not be delivered up or produced for the purpose mentioned in such requisition; and upon appearance before the court or a judge of any person so summoned it shall be lawful for the court or judge to examine such person upon oath and to receive other evidence, or if he does not appear after being duly served with such summons, then to receive evidence in his absence, and (in case the same seems proper) to order such person to deliver up such document upon such terms or conditions as to such court or judge seems fit, and the costs of the summons and proceedings thereon shall be in the discretion of the court or judge.(a)

(a) An order was made against H., directing payment to C. of a certain sum for costs. On the 29th October, 1898, a writ oi fieri facias issued on

this order, directing the sheriff to levy this sum. On the 31st October, 1898, a copy writ was lodged under section 178 against certain land under the


8 5 . Lists of certificates of title called in for cancellation or recti- Transfer of fication and not brought in shall be exhibited in the Office of Titles,«. 87. and shall be advertised in the Government Gazette and in such news- £"*» of certin-papers and at such time or times as the Registrar thinks fit. for cancellation

to be exhibited.

86 . Every certificate of any person or corporation sole being the words of proprietor of an estate in fee simple whether in possession remainder or "uccTss'ion'to'be reversion, and every instrument transferring or creating such an estate imi>lled-to or in favour of any person or corporation sole, shall imply and be '"'88' deemed to include the heirs of such person or the successors of such corporation.

PAET IV.—TITLE BY POSSESSION TO LAND UNDER THE ACT.(°> REMOVAL OF ABANDONED EASEMENTS.

87 . A person who claims that he has acquired a title by possession Application for to land registered under this Act may apply to the Commissioner cwming StiT" for an order vesting the land in him for an estate in fee simple or possession. other the estate claimed. iSfcttm

8 8 . Every such application shall— 19u (*»• 2 ) . . *. (a) be in writing in the form or to the effect of the Sixth Foun of

Schedule and shall include the several particulars therein ^h™ t lon-mentioned or referred to ; sixth schedule.

(b) be signed by the applicant or in the case of a corporation by signature a person authorized in that behalf in writing under SperaSo'no™1

the seal of the corporation ; application. (c) be attested by at least one witness being a person mentioned

in that behalf in the Sixth Schedule; (d) operate and be taken in law as a statutory declaration by

the person signing it that the several statements therein are true ; and

(e) be accompanied by a plan of survey (with field notes) of survey plan to the land certified by a surveyor licensed under the Land appTSon. Surveyors Act 1915.

8 9 . (1) The Registrar shall refer each application to an Examiner dVp^' i^n,how

of Titles who shall report thereon to the Commissioner. >b.,. 6.

Act held under Crown lease by H. On the 7th transfer thereon, and upon their refusal to do so December, 1898, the sheriff's officer sold to G., a judge's summons to the like effect was obtained C.'s solicitor. The consent of the Board of Land under this section. and Works, which was necessary for the transfer, Held, that there was nothing in the said deposit was not obtained until the 4th March, 1899. A which gaVe T. a larger claim to tho land than H. transfer to G. from the sheriff was duly executed himself had, and that such deposit was no answer on the 16th March, 1899, and was tendered for to the summons. registration, which was refused under section 178, An application under this section to have title on tho ground that the transfer had not been left produced to complete transfer cannot be resisted for entry within three months from the day on on the ground of irregularity in the sale by the which the said copy writ had been served. On sheriff, but the parties must be left to their the 13th April, another copy writ was served, and remedies, if any, against tho sheriff in respect of the transfer was relodgcd for registration. Mean- any such irregularity.—In re Hodgson, 25 V.L.R. while, on the 7th February, 1899, the duplicate 355, and sec note to section 166. Crown lease for the said land had been deposited (a) For cases under former Acts see hire Allen, by H. as security for costs with T., his solicitor, who 22 V.L.R., 24; Burns v. The Registrar of Titles, had notice of the sheriff's sale. Subsequently, 1912 V.L.R., 29; Lambourn v. Hoaken, 1912 the Registrar of Titles called upon H. and T. under V.L.R., 394 ; Tovey v. The Equity, etc., Company section 83 to produce the said duplicate Crown Limited, 1913 V.L.R., 265. lease for the purpose of endorsing the sheriff's


Advertisement and service of notice of application. lb. s. 7.

Copy to be posted. 76. «. 7.

Transfer of (2) The Commissioner may thereupon in his discretion reject the A^ndmelt9!^ application altogether or in part or may make such requisitions as to wu(No.2). th e t iy e claimed io have been acquired or as to any other matter

relating to the application as he thinks fit.

90 . If an application is not rejected by the Oonimissioncr as aforesaid he shall direct that notice thereof be advertised (once at least) in a newspaper named by him published in the city of Melbourne or published and circulating in the neighbourhood of the land and be given to any person or persons named by him ; and notice thereof shall be given to every person appearing by the register book to have any estate or interest in the land or in any encumbrance notified on the title thereof.

9 1 . The applicant shall cause a copy of the notice of application to be posted in a conspicuous place on the land or at such place as the Commisioner directs and to be kept so posted for not less than twenty-one days prior to the granting of the application.

92 . The Commissioner shall appoint a term not less than twenty-one days nor more than twelve months from the publication of the advertisement or service of the notice at or after the expiration of which he may unless a caveat is lodged forbidding the same grant the application altogether or in part.

9 3 . (1) The notice shall— (a) specify the volume and folium of the Crown grant or

certificate of title affected by the application and any mortgage charge or lease registered as an encumbrance thereon; and

{b) be dated and be served by being sent in a registered letter marked outside " Office of Titles " posted to each person to be served at his address (if any) stated in the register book or supplied by the applicant.

copy to be Med. (2) The Registrar shall cause a copy of each notice to be filed n. J. 7. -with a memorandum of the same having been sent, and the memor

andum shall be sufficient evidence that the notice was duly sent.

Term to be appointed by Commissioner after which application may be granted.

lb. «. 7.

Contents of notice. lb. «. 7.

Date and mode of service.

Power to reject application. lb. s. 7.

Caveat. lb. «. 8.

Form and effect of caveat.

94 . At any time prior, to granting an application the Commissioner may in his discretion notwithstanding any direction previously given by him as to the application reject the same altogether or in part if the applicant fails to comply to his satisfaction with any requisition made by him within such time as to him seems reasonable.

95 . (1) A person claiming any estate or interest in the land in respect of which any such application is made may before the granting thereof lodge a caveat with the Registrar forbidding the granting of the application.

(2) The caveat shall in all other respects be in the same form be subject to the same provisions and have the same effect with respect to the application against which it is lodged as a caveat against bringing land under the operation of this Act>>

(a) As to compensation where a caveat is lodged without reasonable cause, see section 186.


96. Subject as aforesaid, after the expiration of the time appointed, Transfer of

the Commissioner, if satisfied that the applicant has acquired a title by AmmimeiÂct possession to the land, may make an order vesting the land in the 1914 ( A r ° - 2 ) *•9-applicant (or person entitled thereto) for an estate in fee simple or vStinVorde 6

other the estate acquired by the applicant free from all encumbrances appearing by the register book to affect the existing title "which have been determined or extinguished by such possession and free from any easement notified as an encumbrance which has been proved to the satisfaction of the Commissioner to have been abandoned by evidence of non-user for a period of not less than thirty years.

97. Where a vesting order is made the Commissioner shall direct Consequential

the Registrar— *rections-° lb. ». 10.

(a) to cancel the existing Crown grant or certificate of title and any instrument entry or memorial in the register book altogether or to such extent as is necessary to give effect to such vesting order ; and

(b) to issue to the applicant or person entitled to receive the same a new certificate of title for an estate in fee simple or other the estate acquired in the land comprised in such vesting order free from all such encumbrances as aforesaid and the Registrar shall comply with the directions.

98 . Upon granting the application the Commissioner may grant Contribution to

the same conditioned upon the applicant contributing to the assurance ^8UJra

1n1ce fund'

fund such sum of money as the Commissioner certifies to be in his judgment a sufficient indemnity by reason of the imperfect nature of the evidence of title or as against any uncertain or doubtful claim or demand incident to or which may arise upon the title or any risk to which the assurance fund may be exposed by the granting of the application.

9 9 . Where a vesting order is made by the Commissioner the Entries to be

Registrar shall on such order being lodged with him make the entries Registrar. directed to be made by section two hundred and twenty-seven of this ib.«. 12. Act in the case of the vesting orders therein mentioned and the making or omission to make such entries shall be attended by the same results as declared by the said section in respect of the vesting orders therein mentioned.

100. In cancelling any Crown grant certificate of title instru- rmty of Begis-ment or any memorial or entry in the register book in pursuance of catenation, the direction in that behalf the Registrar shall endorse thereon a n.«. 12. memorandum stating the circumstances and authority under which the cancellation is made.

1 0 1 . (1) Any certificate of title issued by the Registrar in pursu- Effect ot new ance of such order shall be issued and registered in manner pre- tietje1.licate °f

scribed by section forty-seven of this Act and thereupon the person /&. s, 12. named therein shall become the registered proprietor of the said land.

(2) The certificate shall be dated the date of the lodgment with Date of the Registrar of such order. certuvate.


Transfer of Land Act 1890 Amendment Act 1914 (Aro. 2) a. 13. Removal of easement of way noted a3 encumbrance. Application therefor.

Power to order.

Notice of application.

Form and contents of notice.

Service.

Copy to be filed.

102. (1) A proprietor of land may apply to the Commissioner for the removal from the certificate of title of any easement of way notified thereon as an encumbrance.

(2) The application shall be in writing and dated and shall be signed by the applicant.

(3) The Commissioner on being satisfied that the easement has not been used or enjoyed for a period of not less than thirty years may make an order directing the removal of the encumbrance and thereupon the easement shall be deemed to have been abandoned and extinguished.

(4) An order shall not be made until the expiration of twenty-one days after notice of the application has been given by the Registrar to every person appearing by the register book to have any estate or interest in the land to which the easement is appurtenant and also to any other person named by the Commissioner.

(5) The notice shall be in writing and dated and shall include or contain a skeleton plan showing the extent to which such easement is affected.

(6) The notice shall be served by being sent in a registered letter to each person to be served at his address appearing in the register book or iu the case of any person named by the Commissioner at the address supplied by the applicant for that purpose.

(7) The registrar shall cause a copy of each notice to be filed with a memorandum of the same having been sent and the memorandum shall be sufficient evidence t ha t the notice was duly sent.

Easements 1 0 3 . (1) I f a vesting order or an order for the removal of an removedSasln0r encumbrance is made by the Commissioner under this P a r t of this Act bTcanceXT t0 anc^ affects the right estate or interest of the registered proprietor of ib. >. i4. land included in any certificate of t i t le in respect of any registered

easement appear ing thereon the Commissioner shall direct the Regis t rar to cancel such easement to the extent to which it has been determined or extinguished upon the original of such certificate and also upon the duplicate certificate when brought to h im for t h a t purpose, or when the same is lodged in the Office of Titles for the purpose of any dealing with the land comprised therein.

(2) The Registrar may call in such duplicate certificate for the purpose of such cancellation and may detain the duplicate unti l such cancellation is effected, and refuse to register any dealing with the land or any estate or interest therein unt i l the duplicate has been so brought in or lodged.

certificate void 1 0 4 . Any certificate of t i t le entry removal of encumbrance or n s is cancellation in the register book procured or made by fraud shall be

void as against all part ies or privies to such fraud.

P A B T V . — R O A D S PASSAGES ETC.

1 0 5 . Where a block of land not Crown land has been subdivided into allotments by the owner or registered proprietor of the fee-simple and such subdivision includes any private road street or passage created and dedicated solely for and to the use and convenience of the owners or occupiers of the subdivisional a l lotments of such block and subsequently to such subdivision the fee of all the land abut t ing upon such road street or passage has been sold and conveyed or transferred to the purchasers thereof but the fee of such road street or passage remains

The fee of private roadways in subdivided blocks in certain cases to belong to the registered proprietors of the subdivisional allotments abutting thereon.


outstanding in the owner or registered proprietor who made such Real Property

subdivision or in his legal representatives or persons claiming under £c|.1890 <w°"2)

him or them other than such purchasers as aforesaid and is subject to no easements of right of way other than the easements of right of way appurtenant to the land comprised in the said block or to particular portions thereof, the person (if only one) or all the persons (if more than one) solely or collectively entitled as owner or owners registered proprietor or proprietors to the fee-simple of the whole of the land abutting upon such road street or passage, and of every other portion of the said block (if any) to which such easements for the time being are appurtenant, shall for the purpose of making an application under section one hundred and nine be deemed solely or collectively (as the case may be) the owner or owners of the fee-simple in equity of such road street or passage subject to subsisting easements and encumbrances, and the person or persons in whom the fee of such road street or passage remains outstanding be deemed to hold the same in trust for such equitable owner or owners.

106. Where any private road street or passage exists on land not The fee of Crown land and the owner or owners registered proprietor or pro- Sways in prietors of the fee-simple of all the land abutting upon such road JjJj ^bSong street or passage solely (if only one) or collectively (if more than one) te reg

1'|teJed,

is or are the only persou or persons entitled to easements over such Lid abutting road street or passage but the fee of such road street or passage is ê"0

5n-

outstanding in some person or persons other than such owner or owners registered proprietor or proprietors as aforesaid, such owner or owners registered proprietor or proprietors shall for the purpose of making an application under section one hundred and nine be deemed solely or collectively (as the case may be) the owner or owners of the fee-simple in equity of such road street or passage subject to subsisting easements and encumbrances, and the person or persons in whom the fee of such road street or passage is outstanding be deemed to hold the same in trust for such equitable owner or owners.

107. When any private road street or passage on land not Crown The fee of land is a cul-de-sac the person (if only one) or all the persons collectively Endways (if more than one) who is or are the owner or owners registered pro- '^™^^. prietor or proprietors of the fee-simple of all land abutting upon such n.». e. road street or passage and who has or have an easement or easements of right of way thereover shall where the fee of such road street or passage is in some other person or persons be (for the purpose of making an application under section one hundred and nine of this Act) deemed solely or collectively (as the case may be) the owner or owners of the fee-simple in equity of such road street or passage subject to no other easements of right of way than those created or reserved in favour of such last-mentioned owner or owners and the person or persons in whom the fee is legally vested be deemed to hold the same in trust for such equitable owner or owners. And where such fee is already in an owner or owners registered proprietor or proprietors of land so abutting as aforesaid he or they shall in the discretion of the Commissioner be and be deemed entitled thereto subject to no easements of right of way other than the easements created or reserved in favour of such person or persons as is or are

VOL. v .—2 R


Beai Property owner or owners registered proprietor or proprietors of land abutting as Act i89o (Jo. 2). aforesaid a i m to have the certificate of title issued to or already held

by him or them tree or freed from all easements of right of way other than as aforesaid.

In this and the next succeeding section "private road street or passage" includes any land described as a road by the owner in fee thereof in any conveyance in which he granted an easement of way over such land notwithstanding that no such road existed or exists on such land.

Transfer of Land Act 1914 «.7.

Portion of» 108. (1) Where in the case of any private road street or passage itUseUbeaamay which is itself a cul-de-sac and situate on land not Crown land any wftuin'the portion of such road street or passage is in relation to the remainder meaning of this thereof of the nature of a cul-de-sac such portion shall for the purposes K° I°P en °f ^ n ' s •f>ar^ ^ e deemed to be a cul-de-sac within the meaning of the last Act 1907«. 6. preceding section whether or not such road street or passage has been

dealt with under the provisions of this Part or any corresponding provisions previously in force relating to a cul-de-sac.

Registered proprietors of fee of portion of roadway and of abutting land may apply to bring roadway under the Act or for a vesting order. lb. o. 7.

Owners in equity of fee of roadway may apply to bring the same under this Act or for vesting order. Real Property Act 1890 Wo. 2) «. 7.

(2) Where the owner or registered proprietor of the fee-simple of the terminal portion of a cul-de-sac within the meaning and operation of the last preceding section is also the owner or registered proprietor of the fee-simple of all the land abutting on the closed end and sides of that terminal portion subject only to the then subsisting easements of right of way thereover, such portion shall of itself apart from the remainder of the cul-de-sac of which it is a portion be and be deemed a cul-de-sac within the meaning and operation of the last preceding section whether or not the cul-de-sac of which it is a portion has been previously dealt with under the provisions of this Par t or under any corresponding provisions previously in force relating to a cul-de-sac ; and such owner or registered proprietor shall be entitled to apply under section one hundred and nine to bring such portion under the operation of this Act or for a vesting order when such portion is already under the operation of this Ac t ; and in the discretion of the Commissioner shall be and be deemed entitled thereto subject to no easement of right of way and to have the certificate of title issued to or already held by him free or freed from all easements of right of way then subsisting.

109. Where the fee of such road street or passage has not been brought under the operation of this Act the person (if only one) or all the persons (if more than one) by any of the four last preceding sections declared to be for the purpose therein mentioned solely or collectively the owner or owners of the fee-simple in equity of such road street or passage shall be entitled to apply under section eighteen to bring the land constituting such road street or passage under the operation of this Act and for the issue of a certificate of title to him or them or as he or they shall direct either free from or subject to such subsisting easements and where the land constituting such road street or passage is already under the operation of this Act such person or persons as aforesaid shall be entitled to apply to the Commissioner for a vest.ing order vesting the fee in him or them and to be registered in the register book as the proprietor or proprietors of


an estate in fee-simple of the land constituting such road street Or Ileal Property

passage either free from or subject to such subsisting easements. Act ISXHNO 2).

110. Upon every such application as aforesaid whether to bring Notice of such land under the operation of this Act or to procure such vesting H advertised* order as aforesaid the Commissioner shall direct notice of the applica- ?n.dser.v°don

• • , i i - i i i , • T i • i i • , i interested

tion to be advertised once at least in one newspaper published in the persons, city of Melbourne or circulating in the neighbourhood of the land and Ib- '•8>

to be served on any persons named by him, and shall appoint a time not less than fourteen days nor more than twelve months from such notice or from the advertisement or the first of such advertisements (if more than one) on or after the expiration of which the Registrar may unless a caveat is lodged forbidding the same proceed with the bringing of the land under the operation of this Act or with the registration of the applicant or applicants (as the case may be).

1 1 1 . The Registrar shall under such direction as aforesaid cause service of notice to be published in such manner as by such direction may be ;°U

#C™'

prescribed and shall cause a copy of such notice to be posted in a conspicuous place in the Office of Titles and shall send through the post office a registered letter marked outside " Office of Titles," containing a copy of sucli notice addressed to every person whom the Commissioner has directed to be served with notice, and to the persons stated in the application or ascertained to be the owners or occupiers of any and every portion of the land abutting on any road street or passage included in the application and to every person appearing on the register in the office of the Registrar-General or in the register book in the Office of Titles or by the application to have a subsisting estate or interest in the land included in such application or to have any estate or interest as mortgagee or lessee in any land abutting upon or having an appurtenant easement over such road street or passage, also to the council of the municipality in which such road street or passage is situate. Such letter in the case of persons appearing upon any such register as aforesaid shall be addressed to the address (if any) appearing upon such register and every such notice so as aforesaid sent by post shall be accompanied by a skeleton plan showing the position and dimensions of the road street or passage included in or affected by such application.

112. Any application under section one hundred and nine of this Applications

Act where the road street or passage is under the operation of this Act roadway under" shall be made in writing signed by the applicant or applicants and in the Act-addition to the other facts material to the application shall state the lb'""10' names and present addresses of the owners and occupiers of every portion of the said block where the case is within section one hundred and five or of every portion of abutting land where the case is within section one hundred and six or section one hundred and seven also the value of the land comprised in the application. All allegations of fact in such application shall be verified by statutory declaration. The duly authorized attorney of any corporation may make or join in such application for or on behalf of the corporation and may subscribe the application in his own name and make all requisite declarations to th'e best of his knowledge information and belief.

Z R 2

4612 TRANSFER OF LAND ACT 1915. [6 GEO,. V.

Real Property 1 1 3 . Every appl icat ion made under section one hundred and ^n89o (A0.2) n | n e gkaji subject to any express provisions of th is P a r t be made Applications prosecuted and deal t wi th and fees be chargeable and applied in u"dcarP5l!™art manner prescribed by this Ac t for applications of a s imilar na tu re subject to the a n ( i t he persons m a k i n g the same shal l be deemed wi th in and subject provis-ionHOf thia . *- . . t> n • A , rv • i i>

Act to the provisions or this Act affecting such appl icants . person 114 . Any person claiming any estate or interest in or easement application0 o v e r t h e land in respect of which any such application is made nmvlioT'eted a s hereinbefore provided may before the granting tliereof lodge a caveat. caveat with the Registrar forbidding the granting of the application ; ib. i i-2. a n c j every such caveat shall in all other respects be in the same

form subject to the same provisions and shall have the same effect with respect to the application against which it is lodged as an ordinary caveat against bringing land under the operation of this Act, or against registration of any change in proprietorship lodged under the provisions of this Act.

Commissioner of 1 1 5 . The Commissioner in deal ing with any application made un-ortreje™taytheant ^ e r section one hundred and nine may make such requisi t ions as to t i t le application. o r otherwise as he th inks fit and may in his discretion g r a n t such appl i -JL *"13- cation altogether or in part, and in pursuance thereof direct the land

to be brought under the operation of this Act or make such vesting order in the premises as the circumstances of the case require, and the Registrar on being served with such vesting order shall make the entries directed to be made by section two hundred and twenty-seven

May make in the case of the vesting orders therein mentioned and the making vesting order. o r o m i s s i 0 n to make such entries shall be attended by the same results

as declared by the said section in respect of the vesting orders therein mentioned ; or the Commissioner may in his discretion reject any such application altogether or in part.

commissioner to 116. Before granting any application under section one hundred amount™ com- anc* n m e the Commissioner shal l determine wha t amount will in h is pmmtionto j u d g m e n t be an equitable compensat ion to the person or persons in roadway, whom the fee of such road street or passage is outstanding for the ex-16. a. i4. tinguishment of his or their estate and interest therein, and for that

purpose may require the applicant or applicants to produce to him such evidence by statutory declaration or otherwise as he thinks necessary to assist him in determining such amount, and it shall be lawful for any person appearing or claiming to be entitled to such compensation to submit to the Commissioner at any time before the granting of such application evidence as to the then value of such estate and interest.

Applicant to 1 1 7 . W h e n the Commissioner has determined the amoun t of Smounuo compensation he shal l certify to such a m o u n t under his hand and owner in tee or t ,n e g r an t ing of the applicat ion in respect of which such compensation to assurance . <~> o i r , . . ' . , , , , . f

fund. has been determined shal l be condit ional upon the appl ican t paying 76.». is t ] j e a m o u n t thereof to the person or persons enti t led there to or if such

person or persons has or have not been ascertained or cannot be found or refuses or refuse to receive or acknowledge such payment , or it t he Commissioner so directs then conditional upon the appl icant pay ing


such amount into the assurance fund; and no title shall issue or be Real Property registered in pursuance of such application until such payment has been Act 1S90 (l"'2) ' m a d e .

118. When the compensation moneys have been paid into How such the assurance fund under the last preceding section any person there- £ot°out oftne after claiming to be entitled thereto or to any portion thereof ^™™^F a a d

may submit such claim in writing to the Commissioner supporting the entmed. same by statutory declaration, and such other evidence as the Commis- lb- '•16-sioner may require, and if the Commissioner admits the claim altogether or in part and certifies accordingly to the Attorney-General the Governor in Council may thereupon issue a warrant to the Treasurer for payment of the amount so certified out of the assurance fund : Provided nevertheless that no such claim shall lie or be sustained unless made in manner aforesaid within the period of six years from the date of the order granting the application in respect of which such moneys were paid into the assurance fund.

119. Upon granting any application made under section one indemnity may hundred and nine the Commissioner may grant the same conditioned grantfng61* °n

upon the applicant contributing to the assurance fund in addition to the aPPlication-sum to be paid by way of compensation such a sum of money as the lb'"'17' Commissioner certifies under his hand to be in his judgment a sufficient indemnity by reason of the imperfect nature of the evidence of title or as against any uncertain or doubtful claim or demand incident to or which may arise upon the title or any risk to which the assurance fund may be exposed by the granting of the application.

120 . Any person sustaining loss or damage in or by the exercise Persons by the Commissioner of any of the powers in this Part conferred or9damage may on him shall have all the rights and remedies in respect of such loss Jne

0Xssurancenst

or damage as are secured by section two hundred and fifty-two to the fund, persons sustaining loss and damage within the meaning of that section Ib' '•18-subject to the conditions and restrictions therein and herein expressed or implied, and all damages and costs so recovered against the Registrar in any action respecting such loss or damage may be recovered out of the assurance fund.

PART VI.—DEALINGS WITH LAND.

DIVISION 1.—TBANSFEES.

121 . The proprietor of land or of a lease mortgage'"* or charge or of Form of any estate right or interest therein respectively may transfer the same £™J^ o/

by a transfer in one of the forms in the Seventh Schedule, provided Land Act i89o that where the consideration for a transfer does not consist of money seventh the words " the sum of" in the forms of transfer contained in the Schedule-Seventh Schedule shall not be used to describe the consideration, 2i™toTe"tat:ed.

(a) In the case of mortgages under the Transfer original mortgagee subsequently to the transfer of Land Act, tho old doctrine of equity prevails, are to be deemed as payments made to the trans-that payments made by a mortgagor, who has had feree.—Nioa v. Bell, 27 V.L.R., 82. no notice of the transfer of the mortgage, to the


Trantfer of Land Act 1890.

Transfer to include right to sue thereunder. lb. «. 90.

Saving powera of couitsof equity to give effect to trusts.

Proprietor may vest estate jointly in himself and others without limiting any use &c. lb. s. 91.

hnt the true consideration shall he concisely stated ;(a> and a woman entitled to any right or contingent right to dower in or out of any freehold land shall he deemed a proprietor within the meaning hereof. Upon the registration of the transfer the estate and interest of the proprietor as set forth in such instrument or which he is entitled or able to transfer or dispose of under any power, with all rights powers and privileges thereto belonging or appertaining, shall pass to the transferee ;(i>> and such transferee shall thereupon become the proprietor thereof, and whilst continuing such shall be subject to and liable for all and every the same requirements and liabilities to which he would have been subject and liable if he had been the former proprietor or the original lessee mortgagee or annuitant.(c)

122. By virtue of every such transfer as is herein mentioned the right to sue upon any mortgage or other instrument and to recover any debt sum of money annuity or damages thereunder (notwithstanding the same is deemed or held to constitute a chose in action) and all interest in any such debt sum of money annuity or damages shall be transferred so as to vest the same at law as well as in equity in the transferee thereof. Provided always that nothing herein contained shall prevent a court of equity from giving effect to any trusts affecting such debt sum of money annuity or damages, in case the transferee as between himself and any other person holds the same as a trustee.

1 2 3 . The proprietor of land or of any estate or interest in land under the operation of this Act, whether of the nature of real or personal property, may transfer such land estate or interest to his wife; or if such proprietor be a married woman, it shall be lawful for her to make such transfer to her husband; or it shall be lawful for such proprietor to make such transfer directly to himself and another person, or jointly with any other person to himself alone, or to create or execute any power of appointment or disposition or to create or limit estates in remainder or otherwise as legal estates of or concerning land the subject thereof without the intervention of any precedent or particular estate, and also like estates as legal estates without the employment or intervention of auy form of use; and upon the registration of such transfer the land estate or interest shall vest in the transferee solely or jointly (as the case may be) or in the person in whose favour any such power

(a) As to the statement of consideration, see Flanagan v. Bladen, 17 A.L.T., 69 ; 1 A.L.R., 62.

(6) Registration of the transfer of a mortgage undor the Transfer of Land Act is not a substitute for notice of such transfer to the mortgagor.— Nioa v. Bell, 27 V.L.R., 82.

Where a registered proprietor is ordered by the court to transfer to another person, he must apply for a transfer to such person and procure the registration of such person as proprietor.— Vale v. Blair, 9 A.L.T., 90.

In order that the grant to a purchaser of a right in the nature of an easement in respect of land of the vendor may be implied from a conveyance of part of a parcel of land of which the vendor retains the balance, it must appear, having regard to all the circumstances of the case, to have been in the contemplation of the parties that the grantor

should not use the land which he retains in a manner inconsistent with the enjoyment of the alleged easement.

Semble, no grant of right to let water flow through the land transferred is to be implied (so as to bind successors in title) from circumstances not referred to in the transfer.—Nelson v. Walker, 10 C.L.R., 560.

(c) A transfer of land under the Act executed by the transferor, but not by the transferee, and not registered before the death of the transferor, is, nevertheless, valid, and diverts the estato out of the transferror.—Tierney v. Halfpenny, 9 V.L.R. (Eq.), 152.

Quasi easements may pass as the result of a transfer under the Act.—Taylor v. Browning, 11 V.L.R., 158.


has been executed or taking under any such limitation or otherwise Tra-mfer of according to the intent and meaning of such instrument; and she, he, Land Actim

or they shall become and be deemed the proprietor or proprietors thereof.*"'

124 . Every transfer or other instrument shall be deemed of the Instruments

same efficacy as if under seal -W and when signed by the proprietor and rve s

nteJfd'<t'o'ind

registered'0' shall be as valid and effectual to all intents and purposes for have the same ° . . p - i i j . i • j . j . • i i j efficacy as a deed

conveying passing or conferring the estates interests or rights expressed acknowledged, to be thereby transferred leased or created respectively, as a deed duly ™menrtoed

executed and acknowledged by the same person would have been under j^X'lnfs6

any law heretofore or now in force in "Victoria, or as any other form of signed by them, document would have been either at law or in equity; and every instru- lb- >•9"2-ment acknowledged^ within Victoria by any woman appearing by the register book to be married (whether a sole proprietor or not) and certified under the hand of the Registrar or of some Assistant Registrar or perpetual commissioner in the form in the Eighth Schedule, Eighth and every instrument acknowledged out of Victoria by any woman Schedule-appearing by the register book to be married (whether a sole proprietor or not) and certified under the hand of a special commissioner or other authorized person in the form in the said schedule, shall, when such instrument has been registered, be as valid and effectual to all intents and purposes as a deed duly executed and acknowledged or an instrument duly signed aud acknowledged by her would have been under any law heretofore or now in force in Victoria, or as any other form of document would have been either at law or in equity; and such certificate shall be deemed and received as sufficient evidence of the due signature and acknowledgment by her of the instrument therein referred to. Provided always that a married woman entitled to her separate use and not restrained from anticipation or having a power of appointment shall for the purposes of this Act be deemed a feme sole.

125 . If the transfer purports to transfer the whole or part of the Certificate of

land mentioned in any grant or certificate of title, the transferor shall ddiveraiup and deliver up the duplicate grant or certificate; and the Registrar shall ^"°g"^s°n

f"r

after registering the transfer endorse on the grant or certificate a portion of land memorandum cancelling the same, either wholly or partially accord- fresh certificate

ing as the transfer purports to transfer the whole or part of the ^ , ^ " ^ ( 1 land; and the duplicate of any wholly cancelled grant or certificate *h

ceer™t

cate for

shall be retained by him; and the duplicate of any partially cancelled untransferred

grant or certificate shall be returned endorsed as aforesaid to the trans- p^rietorwhen feror ; and the Registrar shall make out to the transferee a certificate demanded, of title to the land mentioned in such transfer, and (whenever required

(a) Per Madden, C.J., and a'Beckett, J. (Hood, J., Supreme Court Act. section 83 (see now Supreme dissentients).—A person registered as proprietor Court Act, section 79).—Robertson v. Fink. 1806 of land under section 232 as executor or adminis- V.L.R., 554. See 4 C.L.R., 864. trator holds the land in a capacity distinct from (c) Held, by Webb, J., that, even though a lease his personal capacity, and may in his capacity might be inoperative under the Transfer of Land as executor or administrator transfer the land to Act, because not registered, the covenant by tho himself personally.—Hosken v. Danaher, 1911 defendant to pay rent contained in such lease was V.L.R., 214. operative, and the plaintiffs should therefore

(6) The covenants in an instrument of mortgage recover tho amount of rent owing.—Munro v. under tho Transfer of Land Act, not expressly Adams, 17 V.L.R., 703. made under seal, are, by the Act, of the same (d) A covenant to pay in a married woman's efficacy as if under seal, and the Statute of Limi- deed not formally acknowledged may be enforced, tations applicable thereto was held to be the —Trewhella v. Willison, 4 V.L.R. (L.), 122.



by the proprietor of the untransferred portion) shall make out to such proprietor a certificate of title to such portion. Provided always that if the land is leasehold, the lease and duplicate shall not be cancelled; and the latter document instead of being retained shall be delivered to the transferee.

On transfer of all the land comprised in a certificate, certificate need not be cancelled but endorsement of transfer shall give it the effect of a new certificate. lb. 8. 94.

1 2 6 . If a transfer purports to transfer the whole of the land mentioned in any g ran t or certificate of ti t le, the Registrar may, except when a tenancy in common is thereby created or cancelled, instead of cancelling such grant or certificate as provided in the last preceding section, enter in the register book and on the duplicate g ran t or certificate a memorandum of such transfer and deliver the duplicate to the transferee; and every g ran t or certificate with such memorandum shall be as effectual for the purpose of evidencing ti t le and for all other purposes of this Act as if the old certificate had been cancelled and a new certificate had been issued to the transferee in his own name, and such process in lieu of cancellation may be repeated upon every transfer of the whole of the land; but when in the opinion of the Registrar any gran t certificate or duplicate cannot for want of space or other cause conveniently bear any further endorsement, he may require cancellation and the issue of a new certificate as provided in the last preceding section.

Transferee of 1 2 7 . In every transfer of land under the operation of this Ac t encumbrance to subject to a mortgage or charge, there shall be implied a covenant with " J '" the transferor by the transferee, binding the latter and his heirs

executors administrators and transferees that he or they will pay the interest secured by such mortgage after the rate and at the times and in the manner therein specified, or will pay the annuity at the times and in the manner specified in the charge, and in the case of land subject to a mortgage will indemnify and keep harmless the transferor and his representatives from and against the principal sum secured by the mortgage and from and against all liability in respect of any of the covenants therein contained or by this Act declared to be implied therein on the part of the transferor.'"'

indemnify transferor. lb. 8. 96.

Creation cf easements. lb. *. 96.

Fifth Schedule.

128. Whenever any transfer or lease of freehold land contains the words " Together with a right of carriage-way over " [specifying or describing the road or roads over which the easement is created and referring to a map endorsed whereon such road or roads is or are coloured brown] such words shall have the same effect and be construed as if there had been inserted in such transfer or lease the words contained in the Fifth Schedule.

(a) The obligation cast on transferees by this section cannot be distinguished from that which would be enforced in equity against the grantee of an equity of redemption.—Ex parte Finlay, 10 V.L.K. (Eq.), at page 83.

Q u cere, whether the mortgagee can sue or enforce oo\renants against the transferee.—Australian Deposit and Mortgage Bank v. Lord, 2 V.L.R. (L.), 31 ; In re Burton, 23 A.L.T., at page 116.

If a trustee of mortgaged land under this Act has, in order to save the estate, paid off tho mortgage out of his moneys, he is entitled to be in

demnified out of the trust property, and to this end may take a transfer of the mortgage in the name of a nominee, and eject his cestui que trustent from possession of the property, not for the purpose of personally enjoying the property, but to get out of tho property the wherewithal to recoup himself the amount he has paid to save tho estate ; and he may do this, although, by the terms of the trust, he is to permit them to occupy and manage the property, and has covenanted so to do.—Daly v. The Union Trustee Coy. of Australia Ltd., 24 V.L.R., 460; and see note to section 162.


129. A memorial of any transfer or lease creating any easement Transfer of over or upon or affecting any land under the operation of this Act shall ^^f0*

890' be entered upon the folium of the register book constituted by the grant easements to he or existing certificate of title of such land in addition to any other entry resi8tered-concerning such instrument required by this Act.

130. A transfer of any land whether freehold or leasehold held by Transfers by registered proprietors being trustees for any society established under Friendly °so-T/ie Friendly Societies Statute 1865 or The Friendly Societies Act ^ômLft 1877 or the Friendly Societies Act 1890 or under the Friendly Societies made by Act 1915 and holding the land as such trustees, signed by the persons proprietor?. for the time being the trustees of the society, shall be as effectual to Ib-s-97-all intents and purposes as if the same transfer had been signed by the registered proprietors for the time being of the land, notwithstanding anything to the contrary hereof contained in this Act.

DIVISION 2.—LEASES AND SUB-LEASES.

131. The proprietor of any freehold land under the operation of Leases of land,

this Act may lease the same for any term exceeding three years by ib.«. 99. signing a lease thereof in the form in the Ninth Schedule ;(a) but no lease Ninth schedule, subject to a mortgage or charge shall be valid or binding against the mortgagee or annuitant, unless he has consented in writing to such lease prior to the same being registered.

132. In every lease made under the provisions of this Act there covenants to be shall be implied the following covenants with the lessor and his iea eagainsYthe transferees by the lessee binding the latter and his executors adminis- ^ssee-trators and transferees (that is to say) :—

(1.) That he or they will pay the rent(6) reserved by the lease at the times therein mentioned and all rates and taxes which may be payable in respect of the leased property during the continuance of the lease, unless the same are or shall be payable exclusively by the owner of the property under any Act or Statute now or hereafter to be in force relating to local government.

(11.) That he or they will koep and yield up the leased property in good and tenantable repair, accidents and damage from storm and tempest and reasonable wear and tear excepted.

(a) A lease which departs in matter of substance the mortgagee as against the mortgagee only from tho form of lease prescribed by the Ninth where such consent has been given bofore the Schedule, and which does not show whether the registration of the lease, and applies only to leases implied covenants under that Act are or are not in registered subsequently to such consent.—Bacchus force, is not registrable; and the fact that the Marsh Brick and Pottery Company Limited v. lease is substantially in the form prescribed by Federal Building Society, 22 V.L.R., 181 ; and see the Second Schedule to the Landlord and Tenant notes to section 61. Act, and that the covenants are to be construed (6) The lessor is entitled to sue the lessee on a according to section 5 of that Act, is not material. covenant to pay rent contained in a lease of land, —In re Crowley and Burns' lease, 1913 V.L.R., even though the lease might be inoperative under 266. Affirmed {sub nomine Crowley v. Templeton), this Act because not registered.—Munro v. Adams, 17 C.L.R., 457. 17 V.L.R., 703. See also Trewhella v. Willison,

This section makes valid a lease of land under 4 V.L.R. (L.), 122. the Act given by a mortgagor and consented to by


Transfer of 133. In every lease made under this Act there shall also be implied s'aioi/ct 1S9° m the lessor and his transferees the following powers (that is to Powers to be S a y J : — implied in lessor.

(i.) That he or they may with or without surveyors workmen or others once in every year during the term at a reasonable time of the day enter upon the leased property and view the state of repair thereof.

(n.) That in case the rent or any part thereof is in arrear for the space of one month, although no legal or formal demand has been made for payment thereof, or in case of any breach or non-observance of any of the covenants expressed in the lease or by this Act declared to be implied therein on the part of the lessee or his transferees and such breach or non-observance continuing for the space of one month, it shall be lawful for the lessor or his transferees to re-enter upon and take possession of the leased property.

Short forms of 134. Whenever in any lease made under this Act the lessee i ssees"'8 by employs any of the forms of words contained in column one of the Tenth Schedule. Tenth Schedule and distinguished by any number therein, such lease ib. s. 102. shall be taken to have the same effect and be, construed as if he

had inserted therein the form of words contained in column two of the same schedule and distinguished by the corresponding number; and every such form shall be deemed a covenant with the lessor and his transferees by the lessee binding the latter and his executors administrators and transferees; but it shall not be necessary in any such lease to insert any such number. There may be introduced into or annexed to any of the forms in the first column any express exceptions from or express qualifications thereof respectively; and the like exceptions or qualifications shall be taken to be made from or in the corresponding forms in the second column.

covenantto be 135. In every transfer of lease made under the Real Property Act S f r of lease. N»- 1 4 0 o r t h e Transfer of Land Statute or the Transfer of Land 76.s. 103. Act 1890 or this Act, and in every transfer of a grant lor years, there

shall be implied a covenant with the transferor by the transferee binding him and his executors administrators and transferees that he or they will thenceforth pay the rent by the lease or grant reserved, and perform and observe all the covenants contained in the lease or grant or by the said Acts or Statute or this Act declared to be implied in the lease and on the part of the lessee or his transferees to be performed and observed, and will indemnify and keep harmless the transferor and his representatives against all actions suits claims and expenses in respect of the non-payment of such rent or the breach or non-observance of such covenants or any of them.

Recovery of 136. The Commissioner, upon proof to his satisfaction of recovery feTsorftob'? 0I> possession by a lessor or his transferees by any legal proceeding, may entered in direct the Registrar to make an entry of the same in the register book ; ib s. 104. a n <i the term for which the land was leased shall upon such entry being

made determine, but without prejudice to any action or cause of action

No. 2740.] TRANSFER 01*' LAND ACT 1915. 4619

which previously has been commenced or has accrued in respect Transfer of of any breach or non-observance of any covenant expressed in the lease Land Ac[1890-or by this Act or by any repealed Act declared to be implied therein.

137. Upon the insolvency of the proprietor of any lease under Mortgagee of the

this Act subject to one mortgage only or to several mortgages if owned SSJioiraitle Le by the same person, the Registrar, on the application in writing of the "^ , ^ p ^ t o b e

mortgagee or his transferees accompanied by a statement signed by transferee of the assignee of such insolvent refusing to accept such lease, shall enter defauiTiessor°" in the register book a note of such refusal; and such entry shall may appIy-operate as a foreclosure and as a transfer of the interest of the insolvent in such lease to the mortgagee or his transferees; and if he or they

•neglect or refuse to make such application as aforesaid within twenty-one days after notice in writing in that behalf from the lessor or his transferees has been served on the mortgagee or his transferees by being given to him or them or by being sent through the post-office by a registered letter directed to him or them at his or their address as stated in the mortgage or transfer thereof, the Registrar, on the application in writing of the lessor or his transferees to be registered as surrenderee or surrenderees of the lease accompanied by such a statement as aforesaid and proof of such neglect or refusal, shall enter in the register book notice of such statement and of such neglect or refusal; and such entry shall operate as a surrender of such lease discharged from the mortgage or several mortgages aforesaid, but without prejudice to any action or cause of action which previously has been commenced or has accrued in respect of any breach or non-observance of any covenant expressed in the lease or by this Act or by any repealed Act declared to be implied therein.

138. A lease under this Act mav be surrendered and determined, Lease may be

as well by operation of law or under any Act now or hereafter to IndoTsemlnt'bj be in force relating to insolvents and their estates, as by the word J,e0

s SrrenhCe of

" Surrendered " with the date being endorsed upon such lease or on the lessor. duplicate thereof (if any) and signed by the lessee or his transferee and '*•s-106-by the lessor or his transferee and attested by a witness. The Registrar shall enter in the register book a memorandum recording the date of such surrender, and shall likewise endorse upon the duplicate (if any) a memorandum recording the fact of such entry having been made. Upon such entry in the register book the estate and interest of the lessee or his transferee Shall vest in the lessor or in the proprietor for the time being of the reversion and inheritance in the land immediately expectant on the term; and production of such lease or duplicate (if any) bearing such endorsement and memorandum shall be sufficient evidence that such lease has been legally surrendered. Provided that no lease subject to a mortgage or charge shall be so surrendered without the consent in writing of the proprietor thereof.

139. The proprietor of any lease under this Act may subject to any Lessee under the provisions in his lease affecting his right so to do sub-let for a term not ^ct ma> sub-,et-less than three years by signing a sub-lease in the form in the Eleventh EleVenth Schedule ; but no sub-lease of any land subject to a mortgage or schedule. charge upon the lease of the land comprised in the sub-lease shall be


Transfer of Land Aot 1890.

Mode of registering sublease.

lb. s. 108.

Sub-leases to be kept in a separate register. lb. s. 109.

Pro\isions of Act as to leases to apply with necessary modifications to sub-leases.

lb. e. 110.

valid or binding against the mortgagee or annuitant of the lease unless he has consented in writing to such sub-lease previously to the same being registered.*"*

140. A sub-lease shall be deemed and taken to be registered when a memorial thereof as described in section fifty-eight has been endorsed on the original lease in the register book and the person named in any registered sub-lease as the sub-lessee shall be deemed and taken to be the proprietor thereof. The Registrar shall endorse on the sublease a certificate of the time at which the memorial was endorsed on the original lease, and shall authenticate such certificate by signing his name thereto; and such certificate shall be received in all courts as conclusive evidence that such sub-lease has been duly registered.

141. Notwithstanding the provisions of section fifty-three a sub-lease shall not be bound up in the register book, but upon registration one original shall be lodged and retained in the Office of Titles; and a book to be called the " Sub-lease Register " shall be kept in the office, wherein entry shall be made of the date parties term and distinguishing memorial number or symbol of such sub-lease, and such book shall be open to inspection by the public during the hours and days of business on payment of the fee provided in that behalf.

142. The provisions of this Act affecting leases lessors and lessees shall apply to sub-leases sub-lessors and sub-lessees with such modifications and exceptions as the difference between a lease and sub-lease and in the mode of registration thereof requires ; and the entries of recovery of possession and of surrender provided for by sections one hundred and thirty-six and one hundred and thirty-eight shall in the case of a sub-lease be made on the sub-lease and on the lease and not in the register book ; and the memorandum directed by section one hundred and thirty-eight to be endorsed on the duplicate shall be written across the entry of such sub-lease in the sub-lease register; and in case of a surrender evidenced by a separate document such document shall be annexed to the original sub-lease.

If the lease is determined by forfeiture or operation of law or by surrender under any Act relating to insolvents and their estates, such determination or surrender shall determine the sub-lease.

(a) M., the lessee of certain premises under the operation of the Act, by a sub-lease dated 13th March, 1890, sub-let the same to A. for a term of five years and ten days from 15th March, 1889. Under an agreement with M., on 1st March, 1889, A. had entered and used the premises, and continued to occupy and use them till 9th June, 1890, when M. brought an action to recover rent reserved by a covenant in the sub-lease with a claim in the alternative for use and occupation. The sub-lease provided for the payment of rent at the rate of £1,000 per annum. On 8th February, 1890, A. paid to M. £230, and this was all that A. had paid in respect of the premises at the commencement of the action. In consequence of the refusal of the lessor to consent to the sub-letting

of the premises, M. was not able to procure the registration under the Transfer of Land Act of the sub-lease till after action brought; but the sublease was registered before trial, and was put in evidence by M. Webb, J., having held that M. was entitled to recover on the covenant in the sub-lease, gave judgment accordingly in his favour for £750. Upon appeal to the Full Court: Held, that M. was entitled to hold such judgment on his claim for use and occupation as, at the date of the commencement of the action, his claim for use and occupation was not merged in the sublease, and, if it were afterwards when the sub-lease was registered, such merger was not pleaded as a defence.—Mim.ro v. Adams, 17 V.L.R., 703.

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1 4 3 . In addition to the covenants specified in section one hundred Transfer of and thirty-two to be implied in every lease, there shall be implied in f*ni.'4ct 189C

every sub-lease the following covenant with the sub-lessee and his covenants to be transferees by the sub-lessor binding the latter and his executors sXieSe" administrators and transferees (that is to say):—

That he or they will during the term thereby granted pay the rent reserved by and perform and observe the covenants and agreements contained in the original lease, and on his or their parts to be paid performed and observed.

144. In the case of a lease or sub-lease of land under this Act, if Determination it is proved to the satisfaction of the Commissioner that the lessor 01* lease by re-entiy

sub-lessor or his transferee has re-entered upon the premises in strict re^ster'book."' conformity with the provisions for re-entry contained in the lease or ib.«. 112. sub-lease or under the power of the second sub-section of section one hundred and thirty-three where the lease or sub-lease is under this Act, or that the lessee or sub-lessee has abandoned the leased premises and the lease and that the lessor or sub-lessor or his transferee has thereupon re-entered upon and occupied the said premises by himself or tenants undisturbed by the lessee or sub-lessee, the Commissioner may direct the Registrar to make an entry of such re-entry in the register book or in the sub-lease register (as the case may be), and the term for which the land was leased or sub-leased shall upon such entry being made determine and may be removed as an encumbrance from a certificate, but without prejudice to any action or cause of action which previously has been commenced or has accrued in respect of any breach or non-observance of any covenant expressed in the lease or sublease or by this Act or by any repealed Act declared to be implied

. therein. DIVISION 3.—M0ETGAGES(o) AND ANNUITIES.

145. The proprietor of any land under the operation of this Act Mortgages and may mortgage the same by signing a mortgage thereof in the form in Ib s_ u3 i

the Twelfth Schedule,ib) and may charge'"' the same with the payment Twelfth of an annuity by signing a charge thereof in the form in the Thirteenth schedule. c* -\ - I T Thirteenth b c h e a u l e . Schedule.

(a) Land under the Act may be equitably mort- to " the two mortgagees in unequal specified pro-gaged by deposit of the certificate of title.—The portions. The Registrar of Titles having refused London Chartered Bank v. Hayes, 2 V.R. (Eq.), 104. to register the instrument:

See note to section 78. Held, that the mortgage was a mortgage to the (6) The Registrar of Titles ia not justified in mortgagees as several owners, and not as joint

refusing to register a mortgage, otherwise in the owners, that there was nothing in the Act pro-ordinary statutory form, of land under the Transfer hibiting the registration of such a mortgage, and, of Land Act on the ground that there is added to it therefore, that the Registrar should have regis-a covenant by persons not parties to the mortgage tered it.—Drake v. Templeton, 16 C.L.R., 153. guaranteeing repayment of the mortgage money. (c) By a marriage settlement made in 1887, the —The Perpetual Executors and Trustees Association settlor, the intended husband, gave a term of 99 oj Australia Limited v. Hoslcen, 14 C.L.R., 286. yoars in certain land to his trustees who were

By an instrument of mortgage a mortgagor directed " out of the rents and profits " thereof mortgaged certain land under the Transfer of Land to raise the annual sum of £500, and pay it to thei Act to two mortgagees. The instrument, after intended wife during her life. The settlor sub-setting out the usual covenants, contained a sequently by his will devised the land to certain number of provisos. At the end of the first beneficiaries subject to the charge created by the proviso, which related to the postponement of settlement. After the settlor's death, viz., in the time for payment of the principal in the event 1882, by order of the Supreme Court, an instrument of punctual payment of interest and due perform- of charge under the Transfer of Land Statute to ance of the covejiants, was a clause stating that " it secure the annuity was executed, which had the is hereby agreed " that the principal sum " belongs effect of rendering the corpus as well as the income


Transfer of Land Act 1890 8. 114. Mortgage or charge not to operate as transfer. Procedure in case of default

146. A mortgage or a charge under this Act shall, when registered as hereinbefore provided, have effect as a security, but shall not operate as a transfer of the land thereby mortgaged or charged; and in case default is made in payment of the principal sum interest or annuity secured'"' or any part thereof respectively or in the performance or observance of any covenant expressed in any mortgage or charge or hereby declared to be implied in any mortgage, and such default is continued for one month or for such other period of time as is therein for that purpose expressly fixed, the mortgagee or annuitant or his transferees may serve on the mortgagor or grantor or his transferees (6> notice in writing to pay the money owing on such mortgage or charge or to perform and observe the aforesaid covenants <c) (as the case may be), by giving such notice to him or them or by leaving the same on the mortgaged or charged land or by sending the same through the post office by a registered'^

of the land liable to satisfy the accruing payments of the annuity. The land was subsequently sold pursuant to an order of court, and the proceeds of sale were invested. An order of court was afterwards made directing the trustees of the settlor's will to set aside a certain sum to answer the " rent charge " on tho land, and to pay the residue of the proceeds of sale to the beneficiaries entitled thereto. This order was never carried into effect, as the income from the investments representing the proceeds of sale had become insufficient to pay the annuity, which fell into arrear.

Held, that, whether under the settlement the annuity was or was not a charge upon the corpus as well as the income of the land, it became so by virtue of the instrument of charge under the Transfer of Land Statute ; that it was too late to have that charge corrected, if it had been inadvertently made ; that that charge equally attached to the proceeds of the sale of the land ; that nothing which had subsequently happened diminished the extent of that charge ; and, therefore, that tho annuitant was entitled to an order for payment of arrears of the annuity out of the corpus of the investments representing the proceeds of the sale of the land.—Brown v. Abbott, 5 C.L.R., 487.

By an instrument in writing, A. purported to charge certain land with an annuity of £150 a year for three years, payable by equal monthly instalments in favour of B. The instrument contained a provision whereby it was expressly agreed as to anyinstalment of the annuity that, if throughout the month immediately preceding the due date for payment of such instalment, the whole of the covenants of A. with B. should have been duly observed and performed, B. should give A. a release in respect of that instalment. The instrument then contained several covenants on the part of A., including covenants to use the premises on the land as a hotel only, to keep in force the licenco for the hotel, and perform and observe all the provisions of the Licensing Acts, and to purchase from B. at certain prices all colonial beer, &c, sold in the hotel.

Held, that that which was called an annuity in the instrument was an annuity within the meaning of section 4, and that the instrument was a charge within this section and the Thirteenth Schedule, and, therefore, that the Registrar was not justified

in refusing to register the instrument as a charge. —Mdhony v. Hosken, 14 C.L.R., 379.

(a) The word " secured " refers both to the security created by tho covenant to pay the principal and interest contained in a mortgage deed and in force between the parties before its registration, and also the security with respect to the land itself which comes into existence only when the deed is registered.—Mathieson v. The Mercantile Finance and Agency Co. Ltd., 17 V.L.R., 271.

(b) An instrument of mortgage registered under tho provisions of the Transfer of Land Act contained a covenant for payment on demand in writing given to or sent through the post in a prepaid letter addressed to the mortgagor, his heirs, executors, administrators, or transferees. Subsequently, a transfer of the land subject to the, mortgage was registered. Default on payment occurred, and notice of sale under this section was served on the mortgagor by registered letter, but no demand for payment and no notice under the section were served upon the transferee.

Held, on an application by the mortgagee for a foreclosure order, that this section requires that where the service of the demand is by registered letter, it should be made upon the registered proprietor.—In re Burton, ex parte The Union Bank of Australia Limited, 27 V.L.R., 437.

(c) A mortgagee claiming to exercise a power of sale for non-performance of a particular covenant alleged to have been broken, should specify that particular covenant. I t is not sufficient to call on the mortgagor to perform " all the covenants " or " the covenants " generally.—Stacey v. Hansen, 20 V.L.R., 561.

See section 161, which seems to imply that the notice should contain a statement that in default of payment there may be foreclosure.

(d) Notice by unregistered letter is sufficient. The provision as to registered letters means that this precaution, beyond mere posting, must be shown where the mortgagee is unable to prove actual receipt.—McDonald v. Rowe, 3 A.J.R., 90.

Notice can be served by registered letter addressed to the registered proprietor at the address appearing'in the register-book, although that proprietor is dead.—Ghinn v. Land Mortgage Bank of Victoria, 12 A.L.T., 49.


letter directed to the then proprietor of the land at his address Transfer of appearing in the register book.W ' Land Act im-

147. Where money secured by a mortgage under this Act is made unsatisfied payable on demand a demand in writing pursuant to the mortgage shall Purauant°to be equivalent to the notice in writing to pay the money owing provided j£™s

t°Vr"ate for by the last preceding section of this Act; and no other notice shall ^" l t u pp n

be required to create the default in payment mentioned in the next sale may be succeeding section. exercised.

lb.«. 115.

148. If such default in payment or in performance or observance Power to sen. of covenants continues for one month after the service of such lb- «•116-notice or for such other period as in such mortgage or charge is for that purpose fixed, the mortgagee or annuitant or his transferees may sell<6) the land mortgaged or charged or any part thereof either altogether or in lots by public auction or by private contract, and either at one or at several times, and subject to such terms and conditions as are deemed fit; and may buy in or vary or rescind any contract for sale and resell in manner aforesaid without being liable for any loss occasioned thereby; and may make and sign such transfers and do such acts and things as are necessary for effectuating any such sale; and no purchaser shall be bound to see or inquire whether such default as aforesaid has been made or has happened or has continued, or whether

(a) The giving of a notice by the mortgagee, demanding from the mortgagor payment of the " money owing " o n a mortgage, entitles the mortgagor to pay off within the time limited by the notice both principal and interest of the mortgage, although the period fixed by the mortgage for the payment of the principal may not have arrived. Before the date fixed for the payment of the principal sum under a mortgage, the tender by the mortgagor of the interest fixed within the period limited by a notice under this section will prevent the mortgagee from exercising his power of sale under section 148. Where a mortgage contains a covenant for payment at a future date, which has not arrived, and for payment of interest in the meantime, and where the mortgagor, after default, on notice under this section, pays off principal and interest before such future day, the mortgagee is entitled to payment of interest only up to the date at which the principal money comes into his hands. By giving a notice under this section enabling him to sell and raise the principal at any time, the mortgagee intimates to the mortgagor his readiness to receive his principal at any time.—Euiart v. The Oeneral Finance, dkc, Society oj Australasia, 15 V.L.R., 625.

(6) In a mortgage under this Act, upon default in payment of interest, although the time for payment of the principal has not arrived, the mort-gee can only bo stayed from selling by payment or tender of the whole amount of principal and interest.—Hervey v. Inglis, 5 W.W. & a'B. (E.), 125.

A demand of payment and notice of sale before the registration of the mortgage may under this section be valid and effectual to authorize a sale after registration.—Mathieson v. The Mercantile Finance and Agency Company Limited, 17 V.L.R., 271.

Mortgagees exercising a power of sale are bound to take reasonable means to obtain an adequate price for the land sold; they are not, however, responsible, if, after taking all reasonable means, an inadequate price is obtained.—Gunn v. Land Mortgage Bank of Victoria Limited, 12 A.L.T., 49.

A mortgagee, in exercising the power of sale conferred on him by the mortgage, not being at liberty to disregard the interests of the mortgagor, is bound before selling, either by auction or privately, to ascertain the value of the mortgaged property, and, if the sale is by auction, so far as the circumstances will permit, to give notice of the sale of such a nature, both as to particulars given, and as to the places in which and the modes by which it is given, as is likely to bring the property to the notice of likely buyers, and so to induce such competition as will be likely to secure a fair price.

The omission from such a notice of such statements as are plainly and obviously necessary in order to enable the particular land to be identified by those invited to buy it, renders the mortgagee liable for any loss occasioned by such omission.

Held, on the evidence that the mortgagee, who had sold the mortgaged land by auction, had entirely disregarded the interests of the mortgagor.

Held, further, that ho was responsible to the same extent as a party who is liable for willul default, and that he was therefore liable to account to the plaintiff for the amount which would have been realized on a sale of the property conducted without such wilful default.—Pendlebury v. The Colonial Mutual Lije Assurance Society Limited, 13 C.L.B., 676.


Transfer of such notice as aforesaid has been served or otherwise iiito the propriety Land Actim. o r r e g U i a r i t y of any such sale.<a>

Application of 1 4 9 . The purchase money arising from the sale of the mortgaged purchase money. c h d l a n d g h a l l b e i xppliecl US follows: — lb. S. 117. T- f l i ' i , i i - n

I f the sale is by the mortgagee or his transferees— Firs t , in payment of the expenses of and incidental to such sale

and consequent on such default: secondly, in payment of the moneys which are due or owing on the mortgage: thirdly, in payment of subsequent mortgages and of any moneys which are due or owing in respect of any subsequent charges in the order of their respective priorities: and the surplus (if any) shall be paid to the mortgagor. P r o vided always t ha t if the sale is made by a mortgagee or his transferees and there is a subsequent charge, the purchase moneys after there have been made thereout all proper prior payments shall be deposited by him or them in the manner and names and for purposes corresponding with those after mentioned.

If the sale be by the annui tant or his transferees— Fi rs t in payment of the expenses of and incidental to such sale

and consequent on such default; then in payment of the moneys which are due or owing to the annui tant or his transferees; and the residue shall be deposited by him or them at interest in the Sta te Savings Bank or in some other bank in Melbourne in the joint names of the annui tant or his transferees and of the Registrar , to satisfy the accruing payments of the charge, and subject thereto for the benefit of the parties who are or become entitled to the residue of the deposited money.

Registrar to give 1 5 0 . Upon the registration'6 ' of any transfer signed by a mor t -nfoTtgage or y gagee or annuitant or his transferees for the purpose of such sale as annuitant. aforesaid, the estate and interest of the mortgagor or grantor in the ib. s. us. j a n ( j t n e r e i n described a t the time of the registration of the mortgage

(a) Qucere, whether the protection given to a the remaining mortgagors a notice to pay the purchaser from a mortgagee by this section, ex- moneys due under the mortgage. Payment not empting him from inquiring as to default or notice being made, they sold the property. Held, that of sale, extends to a person having only a contract there had been default within the meaning of this of purchase—McDonald v. Rowe (3 A.J.B., 90) section, and that the power of sale was effectively doubted; and per Holroyd, J.—" A person exercised both for the purpose of giving title to dealing with the proprietor or mortgagee of land purchasers and a3 between co-mortgagors.— under the Transfer of Land Statute is entitled, Stevenson v. Byrne, 19 A.L.T., 47 ; 3 A.L.R., 198 whether he come in as a buyer or as a subse- and 250. quent mortgagee, to look to what he finds on the (6) Where the mortgagor is the registered register alone. When he becomes proprietor he owner of leasehold estate under this Act, and the is entitled to hold his land free from all encum- mortgage is made and registered under the pre-brances except those noted on the register ; and ceding sections, so that the only way in which the when he becomes mortgagee he is entitled to ignore mortgagee can extinguish the rights of the mort-all mortgages outside tho Statute."—Ross v. The gagor is by foreclosure under the next following Victorian, &c, Society, 8 V.L.R. (Eq.), 254, 275. section or sale under sections 146, 148, and this

A registered mortgago under the Transfer of section: then, whether a sale of such leasehold Land Act contained a joint and several covenant estate is made by the mortgagee under the statu-by four mortgagors to repay the amount of the tory power of sale, or as absolute owner, no in-advance. On the amount becoming due, two of terest therein passes to the purchaser until regis-the mortgagors paid off the whole of the balance tration. See section 61 and this section.—National then outstanding received from the mortgagee, Bank of Australasia v. The United Hand in Hand, and registered a transfer of the mortgage, and <fcc, Co., 4 App. Cases, 391. subsequently caused to be sent to themselves and

No. .2740.] TRANSFER OF LAND ACT 1915. 4625

or charge or which he was then entitled or able to transfer or dispose Tramftr o/ of under any power of appointment or disposition or under any power Lani Act 1890,

herein contained shall pass to and vest in the purchaser, freed and discharged from all liability on account of such mortgage or charge and of any mortgage charge or encumbrance registered subsequent thereto, excepting a lease or grant of easement to which lease or grant the mortgagee or annuitant or his transferees has consented in writing; and the purchaser when registered as the proprietor shall be deemed a transferee of such land, and shall be entitled to receive a certificate of title to the same.

151. The mortgagee or annuitant or his transferees, upon default mease of default in payment of the principal sum or interest or annuity or any part anmSTmay thereof respectively at the time mentioned in the mortgage or charge, e,^g^„° or may enter into possession of the mortgaged or charged land by re-distrain or bring ceiving the rents and profits thereof, and may distrain upon the occupier mortgagee may or tenautof the land under the power to distrain hereinafter contained, redmnptiOT'htcf

or may bring an action of ejectment*"' to recover the land cither before or ib.«. 119. after entering into the receipt of the rents and profits thereof or making any distress, and either before or after any sale of such land is effected under the power of sale aforesaid, in the same manner in which he or they might have brought such action if the mortgage money or annuity had been secured to him or them by an assurance of the legal estate in the land mortgaged or charged; and any mortgagee or his transferees shall be entitled to foreclose the right of the mortgagor or his transferees to redeem the mortgaged land in manner hereinafter provided.

152. Besides his other remedies every first mortgagee or annuitant Mortgagee or for the time being, and every transferee of a first mortgage or charge distrain1onmay

for the time being, shall be entitled, as often as it happens that 0c"Upie°rf0r

the interest or annuity or anv part thereof respectively is in arrear arrears.not for twenty-one days and after seven days have elapsed from an amount of rent application to ti:e occupier*' or tenant for the payment thereof, to enter tenCan'tarch

upon the mortgaged or charged land and distrain the goods and chattels °«luP'er-of such occupier or tenant for the arrears of the said interest or annuity, and the distress and distresses then and there found to dispose of in like manner as landlords may do in respect of distresses for rent reserved upon common demises, and out of the sale moneys to retain the moneys which are so in arrear and all costs and expenses occasioned by

(a) A. was, prior to 1878 and up to 1885, the could sue in ejectment unless either a transfer to Crown licensee of land under The Land Act 1869. him of tho first mortgage or a discharge of such In 1878, the defendant entered into adverse pos- mortgage bo shown on the certificate of title.— session of the land, and had remained in possession Bree v. Scott, 29 V.L.R., 692. continuously. In 1885, a Crown grant of the fee (6) A mortgagor in possession is an occupier issued to A. " in pursuance of The Land Act 1869." witliin the meaning of the first part of this section, A. transferred to B., to whom a certificate of title and the mortgagee therefore has power to distrain under the Transfer of Land Statute issued. B. on his chattels for interest in arrear even though the gave a first mortgage of the land to C. C. trans- mortgage contains no express power to that effect, ferred this mortgage to the plaintiff. The instru- and the mortgagor does not attorn tenant to the ment of transfer was registered under the Transjer mortgagee. oj Land Act 1890, but this transfer was not shown Tho word " occupier " in tho proviso to this in any way on tho certificate of title. B. also gave section is limited to an occupier who owes some. a second mortgage over the same land to the plain- thing in the nature of rent to the mortgagor.— tiff. In an action for the recovery of the land: McLeish v. Forrest, 21 V.L.R., 384.

Qucere, per Madden, O.J., whether the plaintiff Seo Hart v. Stratton, 7 S.A.L.R., 84, contra.

VOL. v .—2 S


Transfer of such distress and sale. Provided that no occupier or tenant shall he Land Act 1890 jja(,]e £0 j ) ay ^0 a n y s u c ] 1 mortgagee or annuitant or transferee a greater tenant liable for sum than the amount of rent which at the time of making such appli-fheaamoSuntof'a" cation for payment is due from such occupier or tenant: aud any

amount so paid as well as any amount which is paid by him to any such mortgagee or annuitant or transferee during the time he may be in the receipt of the rents and profits shall be held to he pro tanto satisfaction of the rent.

rent actually owing by him

Covenants to be 153 . In every mortgage made under the provisions of this Act mortgage"e™ry there shall be implied covenants with the mortgagee and his trans-ib. s. 121. ferees by the mortgagor binding*"' the latter and his heirs executors

administrators and transferees that he or they will pay the principal money therein mentioned on the day therein appointed, and will so long-as the principal money or any part thereof remains unpaid pay interest thereon or on so much thereof as for the time being remains unpaid at the rate and on the days and in manner therein specified; also that he or they will repair and keep in repair all buildings or other improvements which have been or are erected or made upon the mortgaged land; and that the mortgagee and his transferees may at all reasonable times until such mortgage is redeemed enter into and upon such land with or without surveyors or others to view and inspect the state of repair of such buildings or improvements.

Mortgagee or annuitant of leasehold entering into

Eossession to ecome liable

lessor. lb. s. 122.

154:. A mortgagee of or annuitant upon land leased under this Act and his transferees after entering into possession of the land or the receipt of the rents and profits thereof shall, during such

to possession or receipt and to the extent of any benefit rents and profits which are received, become and be subject and liable to the lessor of the said land or his transferees or the person for the time being entitled to the reversion and inheritance expectant on the term of the lease for the payment of the rent reserved by the lease and for the performance and observance of the covenants therein contained or by this Act or by any repealed Act declared to be implied therein on the part of the lessee or his transferees.

Short form of covenant by mortgagor to insure. lb. s. 123. Fourteenth Schedule.

1 5 5 . Whenever in any mortgage made under this Act the mortgagor employs the form of words contained in column one of the Fourteenth Schedule, such mortgage shall be taken to have the same effect and be construed as if he had inserted therein the form of words contained in column two of the same schedule; and every such form shall be deemed a covenant with the mortgagee and his transferees by the mortgagor binding the latter and his heirs executors administrators and transferees. There may be introduced into or annexed to the said form in the first column any express exception

(a) Per Fellows, J.—" There is no doubt that section 90 (the corresponding repealed section) uses the word ' binding' but ' binding ' must be read as ' naming. ' Per Stephen, J.—" Tho real meaning of section 90 is plain, as it includes oxecutors and administrators; it means to bind the estate of tho borrower in the

hands of the heirs, executors, administrators, and transferees, and does not make them personally responsible."—Australian Deposit and Mortgage Bank v. Lord, 2 V.L.R. (L.), at pages 34 and 35; but seo In re Burton, ex parte Union Bank, 27 V.L.R., 437 ; and Fink v. Robertson, 4 C.L.R., 864, at page 880.

No. 2740.] TRANSFER OP LAND ACT 1915. • 4627

from or express qualification thereof; and the like exception or qualifi- Transfer of

cation shal l be t aken to be made from or in t he form in t he second La"d Act 18£l°" column.

156. In addition to and concurrently with the rights and powers certain qualities conferred ou a first mortgagee and on a transferee of a first mort- "ItSe Sxeci gage by this Act, every present and future first mortgagee for the time J^^f' being of land under this Act, and every transferee of a first mortgage n.«. 124. for the time being upon any such land, shall, until a discharge from the whole of the money secured or until a transfer upon a sale or an order for foreclosure (as the case may be) has been registered, have the same rights and remedies at law and in equity (including proceedings before justices of the peace) as he would have had or been entitled to if the legal estate in the land or term mortgaged had been actually vested in him with a right in the mortgagor of quiet enjoyment of the mortgaged land until default in payment of the principal and interest money secured or some part thereof respectively,(a) or until a breach in the performance or observance of some covenant expressed in the mortgage or by the provisions of this Act or of any repealed Act to be implied therein. Nothing contained in this section shall affect or prejudice the rights or liabilities of any such mortgagee or transferee after an order for foreclosure has been entered in the register book; or shall, until the entry of such an order, render a first mortgagee of land leased under this Act or the transferee of his mortgage liable to or for the payment of the rent reserved by the lease or for the performance or observance of the covenants expressed or to be implied therein."'

157. A mor tgagor or h is transferee shal l not, ei ther before or Mortgagor not to c i i p - i , i i r» - i • l • sue at law for

a l te r such default or breach as aforesaid, commence in his own n a m e any the same cause action a t law for or in respect of any cause of action for which a first °f

itahoutna

mor tgagee or his t ransferee m a y sue under the las t preceding section, written consent, wi thout ob ta in ing the previous consent in wr i t ing of such mor tgagee or Ib-s-125-

(a) The words from " with a right in the mort- has not entered into possession, a transferee of the gagor of quiet enjoyment," &c, are—when a time mortgagor may, without the consent of the mortis fixed by an instrument of mortgage for payment gagee, maintain an action for use and occupation of the principal—to be construed as a re-demise against a person who had been let into possession to the mortgagor for a period terminating at the under tho mortgagor after the date of the mort-time fixed, subject to the re-entry of the mortgagee gage, if there bo evidenco of a recognition by tho in case of default.—Farrington v. Smith, 20 V.L.R., defendant of the plaintiff's title.—Louch v. Ball, 90. 5 V.L.R. (L.), 157.

When a mortgagor of land under this Act has Per Cur.—" The previous sections commencing covenanted with the mortgagee for payment of the from section 140 confer certain powers and rights principal at a fixed date, and makes default, the on a mortgagee who holds a mortgage in statutory mortgagee can after that date proceed to recover form of land registered under tho Act as if the possession of tho land by means of a specially rights and powers wcie inserted in the instrument endorsed writ although the mortgagor has not itself in the first instance. Then this section comes expressly attorned tenant to the mortgagee.—lb. in as a drag-net, securing to tho mortgagee, in

A first mortgage of land mado under the Transfer addition to his rights and powers under the in-of Land Act creates, by virtuo of this section, the strument, all tho rights and romedies he would relation of landlord and tenant between mortgagee have had as owner of the legal estate under tho and mortgagor, so that in an action for the re- old law, concurrently with the right in the mort-covery of the land by a mortgagee against a mortgagor to enjoy the mortgage land quietly untd gagor, who has mado default in payment of money default."—The Commercial Bank v. Breen, 15 secured by the mortgage, the writ may be specially V.L.R., at page 577. endorsed under Order III. , r. 6. A mortgage over land under the provisions of

Farrington v. Smith (supra) followed.—Equity the Act cannot be consolidated with a mortgago Trustees, Executors, and Agency Co. Ltd. v. Lee, of land not under the Act.—Greig v. Watson, 7 1914 V.L.R., 57. , V.L.R. (Eq.), 79.

(6) Wheie the mortgagee of lands under this Act

2 S 2

4628 TRANSFER OF LAND ACT 1915. [6 GEO,. V.

Ib. s. 126.

Transfer of transferee or Iris agent to the commencement of such action after Land Act 1890. giv jn jr w h i c h consent such mortgagee or transferee shall not be entitled

to bring in his name any action a t law in respect of the cause of action specified in such consent.'"' Provided however t h a t if a mortgagor or his transferee br ings any such action in his own name and the defendant proves the existence of a mortgage, the plaintiff shall not be nonsuited, nor shall there be a verdict agains t liim, if he proves in reply t h a t the action was brought with the writ ten consent of the mortgagee or of the transferee of his mortgage or his agent.

Application of 1 5 8 . Any sura of money which becomes payable to the mort-"romesuits by"ed g a S o r o r his transferee under any decree or order in any action by him the moitsvagor. ^n j .} i e Supreme Court for or on account of any waste or damage

of or to the land mortgaged shall be paid to the first mortgagee or his transferee in reduction or satisfaction of t he money secured; and if lie is not will ing to receive the same or thereby is fully paid off, the same or the balance shall be paid to any subsequent mortgagee or his transferee according to priority in like reduction or satisfaction; and if no mortgagee or his transferee is will ing or is entitled to receive the same, then to the mortgagor or his transferee for his own benefit.

Application of 1 5 9 . Any mortgagee or his transferee may, either before or after "ronfaouons'by judgment or execution obtained in any action a t law brought by the the mortgagor, mortgagor or his transferee, apply to a judge for a summons in such

action call ing on the plaintiff and defendant or their solicitors or agents to a t tend before a judge and show cause why any sum beyond Twenty-five pounds which has been or is recovered for damages in such action or which becomes payable on the set t lement thereof should not be paid to such persons and for such purposes as are hereinbefore mentioned with respect to money payable under any decree or order in any suit in equity by the mortgagor or his transferee ; and the judge hearing the summons shall determine the mat te r thereof in a summary manner, and shall make such order therein as to costs and all o t h e r ' m a t t e r s^ as appears to be jus t and r ea sonab le ; and the decision of such judge shall be final and conclusive against all parties. Provided always t h a t every order made in pursuance of this section shall be liable to be rescinded or altered by the Fu l l Court in like manner as other orders made by a single judge. The sheriff or other officer who has the execution of any wri t of fieri facias issued in such action shall on being served with a copy of such order obey the same.

(a) In an action of ejectment in the County before he can commence an action in his own name Court by a mortgagee of land under the Transfer in respect of which the mortgagee might have sued, of Land Act, an objection that no consent of the as long as the discharge remains unregistered, plaintiff's mortgagee to the bringing of the eject- —Taylor v. Wolfe and Co., 18 V.L.R., 727. ment, as required by this section, has been stated A mortgagor in possession of land granted graz-or proved may bo cured by amendment, and there- ing rights over the land to a licensee. The dofon-fore, if not made at the hearing, cannot be enter- dant trespassed on the land and injured the fences tained on appoal.—Griffin v. Dunn, 4 V.L.R. (L.), on it, the grass, and the soil. Held, that the 419. mortgagor and licensee could bring a joint action

A mortgagor of land under the Transfer of Land for damages for injury to their possessory rights Act who has obtained a discharge, which he has without obtaining the written consent of tho lodged for registration, is bound by this section mortgagee as required by thi3 section.—Burwood to obtain the written consent of the mortgagee Land Company v. Tullle, 21 V.L.R., 381.


160. Any money received by a first mortgagee or his transferee Transferer under any proceeding commenced in his name at law or in equity shall f'lÂot 189° after payment thereout of his costs be applied in reduction or satisfaction Application of of the moneys secured, and subject thereto shall be disposed of according ^proceedings' to the equities of the parties interested. by a mortgage.

161. Whenever default has been made inpayment of the prin- Mortgagee may cipal or interest moneys secured by a mortgage and such defaultSiSerfor™1

is continued for six months after the time for payment mentioned in for60108"1,6-the mortgage, the mortgagee or his transferee may make application in writing to the Commissioner for an order for foreclosure ;(n> and such application shall state that such default has been made and has continued for the period aforesaid, and that the land mortgaged has been offered for sale at public auction by a licensed auctioneer after notice of sale served as hereinbefore provided, and that the amount of the highest bidding at such sale was not sufficient to satisfy the moneys secured by such mortgage together with the expenses occasioned by such sale, and that notice in writing of the intention of the mortgagee or his transferee to make an application for foreclosure has been served on the mortgagor or his transferees by being given to him or them or by being left on the mortgaged land or by the-same being sent through the post office by a registered letter directed to him or them at his or their address appearing in the register book, and also that a like notice of such intention has been served on every person appearing by the register book to have any right estate or interest to or in the mortgaged land subsequently to such mortgage by being given to him or sent through the post office by a registered letter directed to him at his address appearing in the register book. Such application shall be accompanied by a certificate of the auctioneer by whom such land was put up for sale and such other proof of the matters stated by the applicant as the Commissioner may require; and the statements made in such application shall be verified by statutory declaration.*'

162 . Upon such application the Commissioner may direct the Application to Registrar to cause notice to be published once in each of three sure s- j ^ ^ " ™ 6 ' sive weeks in at least one newspaper published in the city of Melbourne offering such land for private sale, and shall appoint a time not Kss than one month from the date of the first of such advertisements upon or after which the Registrar shall issue to such applicant an order for foreclosure, unless in the interval a sufficient amount has been obtained by the sale of such land to satisfy the principal and interest moneys secured and all expenses occasioned by such sale and proceedings; and every such order for foreclosure under the hand of the Registrar when entered in the register book shall have the effect of vesting in the mortgagee or his transferee the land mentioned in such order, free

(a) An executor who is mortgagee of his tes- prescribed by this section must be strictly fol-tator's land cannot foreclose. This applies to a lowed.—Creig v. Watson, 7 V.L.R. (Eq.), 79. trustee company which has not constituted itself An equitable mortgage of land under the proprietor under section 232. Ex parte Campbell Transfer of Land Act may be enforced by an order (9 A.L.T., 183) distinguished.—Ex parte National for foreclosure, and the jurisdiction of the court Trustees, Executors, and Agency Co., 19 A.L.T., to make such an order is not affected by the pro-222. visions of sections 161 and 162.—Charters v. The

(b) There can be no foreclosure suit respecting Cosmopolitan Land Banking Company Limited, land under this Act. The mode of foreclosure 28 V.L.R., 251.



Discharge of mortgages and annuities. lb. s. 181.

Entry of satisfaction of annuity. lb. s. 132.

Mortgage money may be paid to Treasurer if mortgagee be absent from Victoria and mortgage discharged. lb. s. 133.

from all right and equity of redemption on the part of the mortgagor or of any person claiming through or under him subsequently to the mortgage ; and such mortgagee or his transferee shall upon such entry being made be deemed a transferee of the mortgaged land, and become the proprietor thereof, and be entitled to receive a certificate of title to the same.'"1

1 6 3 . Upon production of a memorandum signed by the mortgagee or annuitant or his transferees and attested by a wituess discharging the land from the whole or part of the moneys or annuity secured or discharging any part of the land from the whole of such moneys or annuity, the Registrar shall make an entry upon the original grant or certificate and upon the original mortgage or charge and upon the duplicate thereof (if any) stating the time at which it was made, that such mortgage or charge is discharged wholly or partially or that part of the land is discharged as aforesaid (as the case may be); and upon such entry being made the land or the portion of land described in such memorandum shall cease to be subject to or liable for such moneys or annuity or for the part thereof mentioned in such entry as discharged; and the Registrar shall make a corresponding entry on the duplicate grant or certificate of title when produced to him for that purpose. («

164. Upon proof to the satisfaction of the Commissioner of the death of the annuitant or of the occurrence of the event or circumstance upon which in accordance with the provisions of any charge the annuity thereby secured ceases to be payable, and upon proof to the like satisfaction that all arrears of the annuity and all costs occasioned by non-payment thereof have been paid or satisfied, he shall direct the Registrar to make an entry in the register book that such annuity is satisfied; and upon such entry being made the land shall cease to be subject to or liable for such annuity; and the Registrar shall make the like entry on the duplicate as is mentioned in the last preceding section.

165 . In case a mortgagee or his transferee is absent from Victoria and there is no person authorized to give a receipt for the mortgage money at or after the date appointed for payment thereof, it shall be lawful for the Treasurer of Victoria to receive such mortgage money with all arrears of interest due thereon in trust for the mortgagee

(a) On foreclosure under sections 161 and 162 the title of the mortgagee, when, pursuant to this section, he is registered as proprietor of the mortgaged land, is, in the absence of fraud, absolute and unimpeachable, and by the reason of the provision in this section that the mortgagee shall be deemed a transferee of the mortgaged land, and of the other provisions of the Act as defining the obligations incurred by a transferee of mortgaged land, with respect to the mortgaged debt, the mortgage debt is extinguished, and, therefore, no action will lie subsequently by the mortgagee upon the covenant in the mortgage to repay the mortgage debt.

So held, by Griffith, O.J., and Barton and O'Connor, JJ. (Higgins, J., dissenting as to extinguishment of the mortgage debt).

In re Premier Permanent Building Land and In

vestment Association, ex parte Lyell (25 V.L.R., 77) overruled.—Fink v. Robertson, 4 C.L.R., 864.

(b) A mortgage of land under the Transfer of Land Act in the form prescribed by the Twelfth Schedule to the Act, though discharged as to the land under section 163, remains in effect as a covenant to repay the mortgage moneys; and, consequently, any part of such moneys not paid prior to such discharge may still be sued for and recovered.—Per Madden, G.J., Bell v. Rowe, 26 V.L.R., 511.

Where a first mortgagee purchased the equity of redemption and became registered as proprietor of the land: Queere, whether this extinguished his mortgage, and made the second mortgagee sole mortgagee.—In re The Victorian Farmers' Loan and Agency Company Limited, 22 V.L.R., 629.


or other person entitled thereto; and thereupon the interest upon such Transfer of mortgage shall cease to run or accrue; and the Registrar shall, upon Land Act 189<x

production of the receipt of the Treasurer for the amount of the mortgage money and interest, make an entry in the register book discharging the laud from such mortgage, stating the time at which such entry was made; and such entry shall be a valid discharge from such mortgage; and the Registrar shall make a corresponding entry on the duplicate grant or certificate of title when produced to him for that purpose. The Treasurer shall from time to time invest all mortgage Moneys moneys and interest which are received by him under this section, tEectionto'be together with all dividends and interest which accrue thereon, ininvested-Victorian Government securities for the benefit of the persons who are for the time being entitled thereto; but nothing herein contained shall render airy Treasurer in any manner liable for not investing the same respectively. The Registrar shall address to the Treasurer requisitions countersigned by the Commissioner to pay to such persons the moneys to which they are entitled hereunder; and such moneys shall be issued in like manner as moneys are issued from the Trust Fund.

166. When auy instrument subsequent to a first mortgage is made First mortgagee by the proprietor of any land and such proprietor or the person entitled Keystation to the benefit of such subsequent instrument desires the registration f tramenT1* of such subsequent instrument the first mortgagee if he holds the n.«. 134. duplicate grant or certificate of title which comprises the land in such subsequent instrument shall upon being requested so to do by the proprietor of the land or the person entitled to the benefit of such subsequent instrument but at the cost of the person making such request

• produce such duplicate grant or certificate of title to the Registrar so that such subsequent instrument may be registered.(a>

167. When any land lias been brought under this Act Title to land subject to any mortgage, and the mortgagee or any person claim- tElct sublet ing under him applies for a certificate of title to the land beSTood'in foreclosed or purchased, the mortgage shall be deemed to have favour of conferred upon the mortgagee or the purchaser under the power purchaser from of sale contained in the mortgage the -right to be registered as b'SgVa'nd'under proprietor at law as well as in equity of the same estate in the laud j o ^ ^ " ^ as that for which the mortgagor was registered, and the only inquiry sale. into title shall be as to the validity of the foreclosure or sale and lb- "•136-of any subsequent transfers or transmissions of title to the applicant, and no caveat which might have been or which was lodged against the original application shall be lodged or renewed in respect of the same estate or interest against the application of the mortgagee or any person claiming under him.

(a) A. mortgaged land to B., and the mortgage he was entitled to the custody of that document, deed contained a covenant that the certificate C. thereupon proceeded under section 84 by sum. of title should remain in the custody of B. during mons calling on B. to show cause why the certificate the continuance of the mortgage. Subsequently, of title should not be produced. Held, that the A. transferred the land to C , and C , acting under provisions of this section overrode the covenant this section, then requested B. to produce the cer- in the mortgage deed, and that the mortgagee, tificate of title so that the transfer might be regis- notwithstanding the covenant, was bound to pro • tered. B. refused to produce the certificate of duce the certificate of title.—In re Armitage, ex title, relying on two grounds, one of which was parte Andrews, 17 V.L.R., 77 ; and see note to that, under the covenant in the mortgage deed, section 84.


Transfer of Land Act 1904 s. 3. When a mortgage under the general law is an encumbiance on a ceitificatQ Of title under the Act application for a foreclosure order can he made to the Commissioner of Titles.

168. Where land has been brought under this Act subject to an outstanding legal mortgage under the general law shown as an encumbrance on the certificate of title which brought the land under the Act, if default has been made in payment of the principal or interest moneys secured by such mortgage and such default has continued for six months after the time for payment mentioned in such mortgage it shall be lawful for the mortgagee, where ihere is but one such mortgage, or for the first mortgagee if more than one such mortgage, his executors administrators and assigns or other the person who would be entitled to bring an action for foreclosure under the general law, to make application in writing to the Commissioner for an order for foreclosure (which order he is hereby empowered to make concurrently with the Supreme Court) provided that the right to foreclosure lias not theretofore been determined in any contested proceeding in any court of competent jurisdiction in which such right to foreclose was in question, and the only inquiry into title shall be as to whether the applicant's estate and interest under or in respect of the said mortgage are such as would have entitled him had he elected so to do to bring an action for foreclosure under the general law by reason of such default as aforesaid; and unless the Commissioner so directs such inquiry shall not be extended to time or events prior to the date of the certificate of title which brought the land under the Act and on which such mortgage was first shown as an encumbrance.

Facts to be stated in application. lb. 8. 4.

169. Such application shall state that such default has been made after due notice to pay given and served in manner provided by the said mortgage and has continued for the aforesaid period of six mouths ; that the land comprised in and remaining subject to the mortgage has • been offered for sale at public auction by a licensed auctioneer after notice of intention to sell given and served in manner provided by the mortgage ; that the amount of the highest bidding at such attempted sale was uot sufficient to satisfy the moneys secured by such mortgage together with the expenses occasioned by such attempted sale ; and that after such attempted sale notice in writing of the intention of the applicant to make such application for foreclosure had been served on the mortgagor or his transferees and on every other person appearing by the register book of the Registrar of Titles and on every person appearing by the register book of the Registrar-General repectively to have any right estate or interest to or in the mortgaged land or in the mortgage security registered in such register books respectively subsequent to the date of the certificate of title by which such land was brought under the Act ; and that such notice has been served by being given to such person or sent through the post office by registered letter directed to him at his address appearing in the register book of the Registrar of Titles or the register book of the Registrar-General (as the case may be) ; such application shall be accompanied by a certificate of the auctioneer by whom such laud was put up for sale; and the statements made in such application shall be verified by statutory declaration. If the applicant's title is a derivative title the applicant must state shortly in a schedule to the application the assignments devolutions or transmissions under which he claims ; and if the applicant has entered into possession under the mortgage the application shall state that fact and the date of such entry.


170 . The Registrar shall refer any application made as aforesaid Transfer of

to an Examiner who shall report thereon to the Commissioner who f™d Actmi

in dealing with such application may make such requisitions as to How application title or otherwise as he thinks fit and may in his discretion grant t 0 be clea"'Wl1,h' such application al together or in par t ; or may notwithstanding any direction previously given by him as to such application reject the same al together or in par t if t he applicant fails to comply with any such requisition to the satisfaction of t h e Commissioner within such time as to the Commissioner seems reasonable.

171 . Upon such application the Commissioner may direct the Notice of

Registrar to cause notice to be published once in each of three ^la^d0" successive weeks with an interval of not less than five days between operation order, each publication, in at least one newspaper published in the ci ty7*8 6-of Melbourne offering such land for private sale ; and shall appoint a time not less than oue month from the date of the first of such advertisements upon or after which the Registrar shall issue to such applicant an order for foreclosure ; unless in the interval a

'sufficient amount has been obtained by the sale of such laud to satisfy the principal and interest moneys secured and all expenses occasioned by such sale and proceedings ; and every such order for foreclosure under the hand of the Registrar when entered in the register book shall have the effect of vesting in the applicant or his executors administrators or assigns the land mentioned in such order free from all right and equity of redemption on the part of the mortgagor or of any person claiming through or under him subsequently to the mortgage ; and such applicant executor administrator or assign shall upon such entry being made be deemed a transferee of the mortgaged land and become the proprietor thereof and be entitled to receive a certificate of title to the same.

172 . Any person claiming any estate or interest in the land or in person or under the mortgage security in respect of which any such appli- app cauon0

cation is made as hereinbefore provided may before the granting beinir granted thereof lodge a caveat with the Registrar forbidding the granting of caveat. ge

the application ; and every such caveat shall in all other respects be in lb-s 7-the same form shall be subject to the same provisions and shall have the same effect with respect to the application against which it is lodged as an ordinary caveat against bringing land under the operation of this Act.

173. Upon granting such application the Commissioner may indemnity and grant the same conditioned upon the applicant contributing to the „e

1ersespecIofble

assurance fund such a sum of money as the Commissioner certifies application snd under his hand to be in his judgment a sufficient indemnity by reason 7b.lr.s. of the imperfect nature of the evidence of title adduced in support of the application ; or as against any uncertain or doubtful claim or demand incident to or which may arise upon the title of the applicant; or any risk to which the assurance fund may be exposed by the granting of the application ; and the applicant shall be chargeable with such fees in respect of such application and order as are made chargeable under this Act.

174. Neither the right to make nor the making of such applica- Right to bring

tion shall deprive the applicant of-the right to bring an action for foreclosure0' under the general law


Transfer of Land AH 1904 «. 9.

preserved to the mortgagee.

Seal of coipora-tion subst i tu te for s ignature. Tiansfer of Land Act 1890 6. 136.

Seal of a t torney of corporation to be deemed seal of corporation.

implied covenants and powers may be modified or negatived. lb. s 137.

Implied covenants to be several and not joint .

Succession to personal estate of deceased proprietor. Will or probate or letters of administrat ion or order of cour to be produced lb. s. 13S.

foreclosure under the general law, but he shall not be at liberty to pursue his remedy by such application and his remedy by action for foreclosure concurrently.

DIVISION 4.—MISCELLANEOUS.

175 . A corporation, for the purpose of transferring or otherwise dealing with any land under the operation of this Act or any lease mortgage or charge, may, in lieu of signing the instrument for such purpose required, affix thereto its common seal. The seal of the attorney of any corporation whose chief or head office of business is out of Victoria, whether such attorney has been already constituted or hereafter is constituted by a power of attorney under a seal purporting to lie the common seal of the corporation giving the power, shall be deemed to be the common seal of such corporation within the meaning and for the purposes of this section.-

176 . Every covenant and power to be implied in any instrument by virtue of this Act may be negatived or modified by express declaration in the instrument or endorsed thereon; and in the declaration in _ any action for a breach of any such covenant it shall be lawful to allege that the party against whom or against whose real or personal representatives such action is brought did so covenant, precisely in the same manner as if such covenant had been expressed in words at length in such instrument, any law or practice to the contrary notwithstanding; and every such implied covenant shall have the same force and effect as if it had been set out at length in such instrument; and where in any instrument there shall be more covenantors than one, such covenants as are by this Act declared to be implied in instruments of the like nature shall be construed to lie several, and not to bind the parties jointly.

177.(°) Upon the receipt of an office copy of the probate of any will or of any letters of administration or of a rule to administer granted to the Curator or of any rule or order whereby it appears that any person has been appointed the executor or

t administrator of any deceased person, and upon the notification in the Government Gazette of the appointment of any succeeding Curator the Registrar shall on an application in writing of the executor administrator or Curator (as the case may be) to be registered as proprietor in respect of any leasehold land (therein described) brought under the operation of this Act or of any lease mortgage or charge therein described enter in the register book and on the duplicate instrument (if any) when produced for that purpose a memorandum notifying the appointment of such executor administrator or Curator, and the day of the death of the proprietor when the same can be ascertained, and upon such entry being made such executor administrator or Curator shall become the transferee and be deemed to be the proprietor of such land lease mortgage or charge or of such part thereof as then remains unadministered and shall hold the same subject to the equities upon which the deceased held the same, but for the purpose of any dealings therewith such executor administrator or Curator shall be deemed to be the absolute proprietor thereof. The title of every executor administrator or Curator becoming a transferee under this section shall upon such entry being made relate back to

(a) See notes to section 232.


and be deemed to have arisen upon the death of the proprietor of any Transfer oj land lease mortgage or charge as if there had been no interval of time Land Act 1800' between such death and entry. I f in any case probate or administration is granted 1o more persons than one all of them for the t ime being shall join and concur in every ins t rument surrender or discharge relat ing to the land lease mortgage or charge. No contribution to the assurance fund under this Act shall be payable on the registrat ion of such executor administrator or Curator.

1 7 8 . No execution registered prior to or after the commence- sale under writ ment of this Act shall bind charge or affect any land or any lease deci;e{ao°!Jrder mortgage or charge; but the Regis t rar on being served with a copy ^"J"™16

of any writ (a ) of fieri facias issued out of the Supreme Court or of /&. s.139. any decree or order of the Supreme Court or of a County Court £™™2c(°ioo3 in its equitable jurisdiction accompanied by a s ta tement signed». 3. by any par ty interested or his attorney solicitor or agent specifying the land lease mortgage or charge sought to be affected thereby shall, after mark ing upon such copy the t ime of such service, enter

(a) The words " any wr i t " in this section include an alias or pluries writ. Where an execution creditor has lodged a copy of the fi. ja., together with the statement required by this section, and before the three months have expired, lodges an alias writ with the registrar, and a further statement specifying the lands sought to be affected, as required by the section, the Registrar cannot refuse to register transfers of land from the sheriff, although not left within three months from the date of the entry of the original writ.— Ex parte Paterson, 3 V.R. (L.), 128.

This section does not limit the right therein mentioned to serve the Registrar of Titles with a copy of a writ of fieri facias to one occasion only, and consequently the Registrar may enter a transfer under any such writ at any time within three months from the day of the original or any subsequent service of a copy of such writ.—In re Hodgson, 25 V.L.R., 355.

The service of a copy writ binds the land specified in such writ for three months from the date of such service, unless in the meantime the property specified is sold under the writ.—In re Shears and Alder, 17 V.L.R., 316.

Prior to and during the early part of the year 1890, C. was licensee from the Crown of certain land, and in April of that year a judgment was recovered against him in the Supreme Court by R., and a writ of fi. fa. thereon was issued and lodged with the shoriff for execution on 18th August, 1890. On 22nd August, 1890, C. applied for a lease of the land from the Crown. The application was approved, and the lease executed by the Governor in Council, and on the 2nd December, 1890, it was also executed by C. The lease was dated 1st March, 1890, and was for the term of fourteen years from that date, and the land comprised in the lease had not been previously alienated from the Crown. On 11th March, 1890, C. had executed in favour of D. a memorandum of mortgage over the land purporting to be under the provisions of the Transfer of Land Act. On 11th December, 1890, a copy of the writ of fi. Ja., together with a statement specifying the land and

the leasehold estate therein as the land and estate sought to be affected by the writ of fi. fa., wan lodged at tho Office of Titles for registration at 11.37 a.m., and romained in the office during that day. At 12.30 p.m. on the same day the lease was lodged for registration, and was entered in the register book, and at 1.47 p.m. of the same day the mortgage was lodged for registration by D. Held, that, notwithstanding the provision of section 16 that enrolment shall relate back to the date of the grant, the mortgage should be registered first, as it was the first document lodged for registration after the entry of the lease in the register book.—Ricliards v. Cadman, 17 V.L.R., 203.

On 1st April, 1891, J . was entitled to a lease of certain Crown lands when certain improvements should have been made thereon. On 24th April, 1891, J. received an advance from the plaintiff bank, and at tho same time verbally agreed to lodge his lease, when issued, with the bank as security for the advance. He also signed and left with the plaintiff bank the following order, addressed to the Secretary of the Lands Department :—" Please hand to the C. Bank of Australasia (i.e., the plaintiff), or their order, my Crown lease and Crown grant, when issued, for land situated in the parish of Gruyere, county of Evelyn, containing 260 acres." The improvements having been duly made, the Lands Department, in December, 1891, approved of the issue of the lease. On 16th June, 1892, the lease was executed, and on 20th June, 1892, it was sent by the Lands Department to the Registrar of Titles, by whom it was enrolled and registered on 21st June, at half-past nino a.m., and then returned to the Lands Department. On the morning of the 22nd June, 1892, the lease was handed to tho plaintiff by the Lands Department, on the faith of the order of the 24th April, 1891. Tho Lands Department had received notice of that order on 7th June, 1892. In March, 1892, a judgment was recovered against J., and a writ of fi,. fa. was issued, a copy of which writ, with the necessary statement, was lodged with the Registrar of


Transfer of the same in the register book;'0' and after any land lease mortgage or Land Act 1890. cj i a i .ge s o specified has been sold under any such writ decree

or order, the Registrar shall, on receiving a transfer thereof in such Fifteenth one of the forms in the Fifteenth Schedule as the case requires schedule. (which transfer shall have the same effect as if made by the

proprietor), enter such transfer in the register book:"' and on such entry being made the purchaser shall become the transferee and be deemed the proprietor of such land lease mortgage or charge.(c)

Titles on 21st June, 1892, at half-past ono p.m. On 15th July, 1892, the defendant purchased the land comprised in the lease, and applied to have the transfer to him from the sheriff registered. The plaintiff brought an action to restrain the registration except subject to the equitable mortgage created by the agreement and tho subsequent deposit of the lease : Held, that the verbal agreement coupled with the written order did not constitute an equitable mortgage, and that, as the copy fi. ja. was lodged on 2lst June, tho interest of the defendant as purchaser at tho sheriff's sale had priority over tho interest of the plaintiff arit-ing out of the deposit of tho lease on 22nd June.—The Colonial Bank oj Australasia v. Riddel, 19 V.L.R., 280.

(a) Semble, it is the duty of the Registrar to register a transfer from a sheriff to a purchaser at a sheriff's sale, although the Registrar may havo notice of an unregistered onoumbrance.—Pat-chell v. Maunsell, 7 V.L.R. (E.), 6.

Whore a mortgagor of land registered under this Act transferred to a mortgagee, the contract between them providing that tho mortgagee should becomo registered proprietor in foe free from any encumbrance, a deed of defeasance being executed by the mortgagee to secure the mortgagoi's right of redemption: Held, that the simple delivery by a judgment creditor of the mortgagor of a writ of fi. Ja. to the sheriff, without service upon the Registrar of a copy of the writ with a specifying statement under this section, did not bind the mortgagor's interest so as to invalidate an assignment for value by him aftor such delivery, and after advertisement by the sheriff of his intention to sell at a futuro date all the mortgagor's interest in tho land. Quaere, whether the interest of the mort-gagor was such as could be registered under this Act, and whether it was necessary to serve on the Registrar a copy of the writ of fi. ja., accompanied by a specifying statement under this section.—Sander v. Tivigg, 13 V.L.R., 765.

The creation of a quasi equity of redemption in land mortgaged to a building society by means of the execution by the mortgagor of a transfer absolute in form and a deed of defeasance by the society, though opposed to the policy and intention of the Legislature, is not illegal, and a mortgaior's interest cannot bo affected by any proceeding under this section by a creditor having an execution against him. Quaere, whether the Registrar can enter in tho register book a copy of fi. ja. lodged under this section, when the estate or interest of the execution debtor nowhere appears in that book.—Watson v. The Boyal, &c, Building Society, 14 V.L.R., 283.

(6) I t is the duty of the registrar to register the first transfer undor a sale from tho sheriff, which was lodged with him, if it bo valid ; if it appear not to comply with a condition in the instrument of title, he must decide for himself whether such condition is valid.—Ex parte Bond, 6 V.L.R. (L.), 458.

A judgment against a person in his individual capacity cannot bo registered as against land which such person holds " as executor."—Balding v. Nicholas, 19 V.L.R., 110.

A transfer of property from the judgment debtor, made before the service of the copy writ of fi. ja., but not presented for registration prior to such service, cannot he registered during the period of three months from the date of such service of tho copy writ. To protect his interests, the transferee from the judgment debtor should lodge a caveat.—In re Shears and Alder, 17 V.L.R., 316.

(c) Semble, this section does not annul a sale by an unregistered fi. ja. as against the debtor, but leaves the purchaser exposed to be defeated by the debtor's acts until the execution is by some means brought into registration.—United, &c, Co. v. National Bank, 2 V.L.R. (Eq.), 206.

This section does not avoid a sale by fi. ja. as to the rights of a debtor, but only as betweon a purchaser for value from the debtor, and a purchaser from the sheriff.—Giles v. Lesser, 5 V.L.R. (Eq.), 38.

An equitable mortgagee, by deposit of certificate of title, who lodges a caveat and allows it to lapse without taking any further steps to protect himself, will not have priority over a purchaser at a sheriff's sale, under a fi. ja. which had been duly lodged under this section.— Patchell v. Maunsell, 7 V.L.R. (Eq.), 6.

The purchaser of land at a sheriff's sale under a writ of fi. ja. does not become the transferee, nor can he be deemed the proprietor thereof until 'such transfer is entered by the Registrar in the register book. The sale by tho sheriff under a writ of fi. ja. does not necessarily exclude the rights of an unregistered equitable mortgagee, whose right has accrued before tho service of a copy of the writ of fi. ja. upon the Registrar of Titles.—National Bank v. Morrow, 13 V.L.R., 2.

The policy of the Legislature in framing this section was obviously to prevent titles from being affected by tho operation beyond the limited time of unexecuted writs of execution as charges on the land, and to reconcile the rights of a judgment creditor with those of a purchaser for value, whether with or without notice. Both objects are effected by compelling the creditor to proceed, within a limited time, to enforce an execution by actual sale of


Provided that until such service as aforesaid no sale or transfer under Transfer of any such writ shall be valid as against a purchaser for valu-L a n d A c t l i w-able consideration, notwithstanding such writ was actually lodged for execution at the time of the purchase, and notwithstanding the purchaser had actual or constructive notice of the lodgment of such writ. Upon production to the Commissioner of sufficient evidence of the satisfaction of any writ a copy whereof has been served as aforesaid, he shall direct an entry to he made in the register hook of a memorandum to that effect; and on such entry su.ch writ shall be deemed to be satisfied. Every such writ shall cease to hind charge or affect any land lease mortgage or charge specified as aforesaid, unless a transfer upon a sale under such writ is lodged for entry. upon the register within three months from the day on which the copy was served.

On a transfer from the sheriff being presented for registration copy of ft./a. it shall not be registered nor deemed produced for registration within !™4tereed the meaning of section fifty-three unless previously and within three ^"''shei f617

months preceding the transfer being so presented a copy of the writ of produced for fi. fa. in pursuance of which such transfer purports to have been made ^.s.os. has been duly served upon the Registrar for entry by him in the register book in accordance with the provisions of this section.

179 . Except in the case of fraud'0' no person contracting or dealing Purchaser from 1 r o o registered

the land affected thereby.-—Registrar of Titles v. Paterson, 2 App. Cases, at page 118.

The provisions of this Act referring to registration have merely the effect that until the transfer to the assignee is registered, the original lessee may act so as to defeat the title of the assignee.

Kickham v. The Queen, 8 V.L.R. (Eq.), 1; and see Meade v. Adams, Ar. Rep., 14th September, 1865.

Qucere, whether the sheriff, having in his hands several writs, one of which has not been lodged with the Registrar, can apply the proceeds of land registered under this Act to the satisfaction of such writ.—Beath v. Anderson, 9 VX.R. (L.), 41.

This section does not entitle the purchaser of land at a sale by a sheriff under a fi. ja. to be registered, and thereby to defeat prior unregistered equitable interests in the land. The purchaser from the sheriff only buys a charge upon the judgment debtor's interest in the land. Where land has been conveyed away by a voluntary deed of settlement, a subsequent sale by a sheriff under a fi. fa. does not avoid that voluntary deed. A. sold certain land and received promissory notes for the purchase money; ho subsequently by a voluntary deed of settlement conveyed to a trustee the money represented by the promissory notes, and " the benefit of all securities for the same," and the contract of sale, and also his right, title, and interest in the moneys and contract. The deed further empowered the trustee in the name of A. to demand, sue for, recover, and give receipts for the said money, and for those purposes to execute all necessary instruments. The deed also

appointed the trustee to be A.'s attorney under power to exercise and enforce all the rights, powers, or remedies vested in or exercisable by A. in respect of the contract, to enforce specific performance thereof, to abandon, vary, or rescind the same, to re-sell the land, and for those purposes to execute all instruments and transfers as the trustees should think fit expedient, or as should bo necessary, and generally to execute and do every deed and thing as fully and effectually as A. could. Held, that A. only had left in him the bare legal estate. A deed of settlement contained a trast to pay the income to the settlor during his life, or until he should become insolvent. Held, that the deed was not on this ground alone void under 13 Eliz., chap. 5, as being made with intent to defeat or delay creditors.—Rome v. The Equity Trustees, Executors, and Agency Company Limited, 21 V.L.R., 762.

(a) This section should be construed strictly, its exceptions liberally. " Fraud " in this section applies equally to the cases of fraud by a purchaser and by a vendor.—Chomley v. Firebrace, 5 V.L.R. (E.), 57. See note as to "fraud" in section 72.

The word " fraud " in this section does not include fraud of the conveying party in acquiring title.—Cullen v. TJiompson, 5 V.L.R. (Eq.), 147.

For circumstances under which a registered proprietor and the purchasers from him endeavouring to take advantage of a mistake wore held not to bo guilty of fraud within the meaning of this section, see Lake v. Jones, 15 V.L.R., 728.

A., the administratrix of an intestate's estate, mortgaged certain leasehold property, part of tho estate of which she was the registered proprietor under the Act, to B., to secure the payment


Transfer of with or taking or proposing to take a transfer (a> from the proprietor of LandÂa 18D0 aa^ registered laud lease mortgage or charge shall he required or in any piopiietornot maimer concerned to inquire or ascertain the circumstances under or by'notioepted the consideration for which such proprietor or any previous proprietor

thereof was registered, or to see to the application of any purchase or consideration money, or shall he affected by notice actual or constructive"1 of any trust or unregistered interest, any rule of law or equity to the contrary notwithstanding; and the knowledge that any such trust or unregistered interest is in existence shall not of itself be imputed as fraud.'0'

of £1,000 owing by her to B. in respect of property she had purchased from him after the death of tho intestate. When making tho agreement for this purchase, and when he took the mortgage, B. knew that A. was administratrix, and that the leaso mortgaged to him formed part of the intestate's estate. Held, that actual fraud should not be inferred, and that therefore the mortgago could not bo defeated.—Gregory v. Alger, 19 V.L.R., 565.

(a) This section does not apply to a voluntary transfer of land.—Crow v. Campbell, 10 V.L.E. (E.), 186.

(6) This section protects in the case of constructive but not in the case of actual notice of fraud.—Colonial Bank v Pie, 6 V.L.R. (E.), 186.

A purchaser is not protected where there is constructive notice of fraud. A., a solicitor, was tho survivor of two trustees of a settlement, under which they had power to invest and to vary investments with the consent of the tenant for life, and the tenant for life had power to appoint new trustees, which was never exercised. A. was also attorney under power of the defendants, trustees, to invest moneys. He invested moneys of the settlement trust in his own namo upon mortgages, one under the Transfer of Land Statute, and paid the income to the tenant for life, rendering signed accounts referring to thorn. Shortly after, being indebted to the defendants, he, without the consent of tho tenant for life, drew and executed transfers of the mortgages to them, untruly reciting tho receipt of tho consideration moneys. He died in insolvent circumstances. Upon bill by new trustees of the settlement against the defendants, seeking a re-transfer of the mortgages : Held, that the defendants should be doomed to have had notice of the broach of trust, and should re-transfer the mortgage to the plaintiffs.—Chomley v. Firebrace, 5 V.L.R. (Eq.), 57.

A., a registered proprietor, borrowed money from B., and was induced by him to sign a document which he supposed to be a security, but which was a transfer by him to B. of the land. B. had himself registered as proprietor, and mortgaged the premises to C. The premises were throughout in the occupation of a weekly tenant of A., who paid rent to him. Upon the discovery of B.'s fraud, A. filed a bill against B. and C. for redemption. Held, but for this section, C. would, by tho tenancy, have been affected with constructive notice of A.'s rights, but that that section protected him; and that the mortgage to C. was good as against A . ;

decreo for redemption made upon payment by A., or B., and if by A., then B. ordered to repay him.—Cullen v. Tlwmpson, 5 V.L.R. (Eq.), 147.

The proprietor of land under the Act presented for registration the discharge of a mortgage, of which land trustees wero tho mortgagees. Held, that the Registrar was not entitled to refuse to register such discharge on the ground that it was not shown to his satisfaction that the dealing was authorized by tho trust.—Ex parte Campbell, 9 A.L.T., 183.

Resulting trusts may be enforced against volunteers.—Raleigh v. Clover, 3 W.W. & a'B. (E.), 163, followed in Chomley v. Firebraee, supra.

(c) Tho immense power given by this Act to a proprietor of completely barring clear equities presents a reason for courts of equity readily interfering by injunction.—Davis v. Wehey, 3 V.R. (Eq.), 1.

The court will not order, under section 80, an equitable mortgagee of the certificate to bring it in to be cancelled without payment of his lion.—Ex parte Patterson, 4 A.J.R., 110.

Tho plaintiffs let machinery to B., providing that machinery was to bo paid for by instalments, and not to become the property of B. until all had been paid. Tho machinery was all connected and used together. The brick bed of the engine and the wall of the boiler were firmly imbedded in the ground. There would have been no difficulty in disconnecting either tho boiler or the engine from the brickwork without injuring the brickwork in any way. The machinery was protected by a shed erected only for that purpose. Tho roof of the shed was put on by B. after the machinery had been placed in position. Ill tho courso of the work some bricks were built over tho front of the boiler, and a wall-plate to support the roof rested upon thorn. C , who was the defendant i n an action brought by plaintiffs to recover tho machineiy, advanced money to B. under a mortgage, which provided that tho money advanced thereunder should be applied in the first place to the payment of the balance which might bo due from the mortgagors to any person or persons to whom any sums of money wore then owing in respect of any plant or machinery then upon the ground, and purchased on time payment. C. knew of the existence of tho letting and hiring agreement between tho plaintiffs and B., and knew the nature of such agreement, and the defendant's manager was furnished by B. with a list of all the persons to whom B. was then indebted, including the plaintiffs.


180. A transfer or mortgage in the ordinary form by a tenant i n Transfer of tail under this Act having power to create an estate in fee simple shall fauiAa 189° create such estate in favour of a transferee mortgagee or transferee Transferee of under the power of sale in the mortgage and a transferee from a tenant mavbV"ta'' in tail or under a mortgage from a tenant in tail or a mortgagee after ".fêr estate foreclosure shall be entitled to be registered-and receive a certificate for which a tenant the larger estate which the tenant in tail is empowered to confer, but a confer, mortgage under this Act if discharged shall not bar the entail.

181. Nothing contained in this Act shall enable any lessee of land Powers of lessees

under any grant to transfer or otherwise deal with such land contrary to n"t e tencS the provisions of The Amending Land Act 1865, or any subsequent n.«. i«. Land Act affecting such grant.*1'

182. Where part only of the land comprised in a certificate has been Registrar to dealt with by a registered dealing, but the memorandum of such dealing Showm/ianci endorsed on the certificate does not specify such part, the Registrar £\neinoran-eie

shall furnish to any person applying for the same on payment of the fee <Jum on payable in that behalf a skeleton diagram of the land originally not draedbe06"' comprised in the certificate showing by metes and bounds and a distin-™0'1'™^-gnishing colour the position and dimensions of the part included in such dealing ; and such diagram shall be stamped with the seal of the Office of Titles, and a copy of such diagram shall be endorsed on or annexed to the certificate. Provided that if there are different registered dealings affecting different parts of the land comprised in the certificate, and a plan is required showing such different parts, a separate fee shall be paid in respect of each such part. Provided also that where different parcels of land not contiguous axe included in the certificate, the skeleton diagram hereinbefore mentioned need only be of the parcel or parcels which includes or include the part or parts so dealt with.

PART VII.—CAVEATS.*'

183. Any beneficiary or other person claiming any estate OL' 111- Caveat may be

terest(c' in land under the operation of this Act or in any lease mortgage ^ e ( j -or charge under any unregistered instrument or by devolution in law

Tho money was duly advanced under the mort- issued to the first mortgagee, tho land was sub-gage, B. having full control thereof, and tho ject to the two original mortgages. Some defendant not taking care to see that the plain- years aftorwards, the second mortgagee lodged tiff's debt was paid. Held, that the machinery a caveat, by virtue of his mortgage (desciibing did not become part of B.'s freehold, that this it), forbidding any dealing with the land. On section did not bar the plaintiff's claim to the a summons calling on the caveator to show cause machinery, and that tho machinery was not why the caveat should not be removed: Held, included in the mortgage, as it did not form part that the caveat should bo altered so as to forbid of tho land mortgaged.—The Austral Otis Ele- dealing with the land until notice had been given vator and Engineering Company Limited v. Kerr, to the second mortgagee. Held, fuither, that tho 16 V.L.E., 744. caveat should be further altered so as to state the

(a) See Miller v. Moresey, 2 V.R. (L.), 193. nature of the title under which the second mort-(6) For a general discussion on caveats, see gagee claimed, i.e., whether ho claimed as the

The General Finance Co. v. The Perpetual Trus- only mortgagee, or as second mortgagee. Qumre, tees, &c, Association, 27 V.L.R., 739. whether tho effect of the first mortgagee's pro-

Tho first mortgagee of land, which was also ceodings was to extinguish his mortgage, and subject to a second mortgage, obtained a judg- to make the second mortgagee tho sole mort-mont against the mortgagor for overdue interest. gagee.—In re Victorian Farmers' Loan, &c, Co. Undor this judgment, a sale of tho land was held Ltd., 22 V.L.R., 629. by the sheriff, at which a clerk of the first mort- (c) Tho nature of the interest should be stated gagee bought, and subsequently transferred the as clearly as possible.—Ex parte Lyons, 1 W.W. land to tho first mortgagee. According to tho & a'B. (L.), 119. certificate of title to the land, which was then An owner of land subject to a mortgage is a


Transfer of Laml Act 1S90. Sixteenth Schedule.

Caveat may be withdrawn.

Caveat to have an address in Melboui ne for service of notices. An additional address may be given elsewhere for sending a registered letter.

or otherwise may lodge a caveat(a) with the Registrar in the form in the Sixteenth Schedule or us near thereto as circumstances permit, forbidding the registration of any person as transferee or proprietor of and of any instrument affecting such estate or interest either absolutely or until after notice of the intended registration or dealing is given to the caveator, or unless such instrument is expressed to he subject to the claim of the caveator as is required in such caveat, or unless the caveator consents in writing thereto. Every such caveat shall state the name and addition of the person by whom or on whose behalf the same is lodged, and (except in case of a caveat lodged by order of the Supreme Court or by the Registrar pursuant to the direction of the Commissioner as hereinafter provided) shall he signed by the caveator or by his agent. The person lodging such caveat shall if required support the same by a statutory declaration, stating the nature of the title under which the claim is made, and may withdraw any such caveat. No such caveat shall be received unless some address or place within the present limits of the city of Melbourne is appointed therein as the place at which notices and proceedings relating to such caveat may be served. A caveator may however give an additional address out of the said city at the foot of such caveat, in which case a registered letter shall be sent through the post office to such address on the same day as that ou which any notice relating to such caveat is served in Melbourne. Every notice relating to such caveat, and any proceedings in respect thereof, if served at the address or place appointed as aforesaid, shall be deemed to be duly served.

Notice of caveat 184. Upon the receipt of such caveat the Registrar shall notify /6b«e 145™ the s a m e to the person against whose application'6' to be registered as

proprietor*"' or (as the case may be) to the proprietor against whose title caveator may be to deal with the estate or interest such caveat has been lodged; and shmv cTusl'0 such applicant or proprietor or any person claiming under any transfer or

person entitled to lodge a caveat against a dealing by the registered mortgagee.—Davies v. Herbert, 11 V.L.R., 38G.

An easement in gross cannot bo registered, and is not such an interest.—Ex parte Johnson, In re Whyte, 5 W.W. & a'B. (L.), 55.

The committee of a lunatic resident in England was given power by the English courts to deal with the real property of the lunatic. Persons claiming as tho next-of-kin of the lunatic lodged a caveat to prevent any dealings in respect of certain land of tho lunatic situated in Victoria. On proceedings to compel the removal of tho caveat: Held, that the caveators had no power to lodge such a caveat.—In re Annand, 17 V.L.R., 108. Semble, that tho attorney under power of the committee was entitled to make the application.—lb.

(a) The lodging of a caveat against registration of any transfer of land under the Act only throws a cloud upon the title of the registered proprietor, and does not amount to such evidence of an absolute want of title as to induce the court to refuse a purchaser specific performance of a contract of salo on the ground that the

vendor has no title.—Taylor v. Land Mortgage Bank oj Victoria, 12 V.L.R., 748.

Where a fiist mortgageo purchased the equity of redemption of the land mortgaged, and was registered as proprietor of the land, a caveat lodged by the second mortgagee forbidding absolutely all dealings in tho land is bad in form. Such caveat is only permissible to forbid dealings until notice is given to the second mortgagee. Qucere, whether it should state the natme of the caveator's title.—In re The Victorian Farmers' Loan and Agency Co. Ltd., 22 V.L.R., 629.

(i) On an application by the registered proprietor to have a caveat removed, the court will not order such caveat to be removed upon such application where there 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.—Ex parte Vincent, 12 V.L.R., 566.

(c) An unregistered transferee of land under this Act is not a "proprietor" or "appl icant" entitled under this section to be notified of a caveat or to summon tho caveator.— Ex parte Davies and Inman, 11 V.L.R., 780.


other instrument signed by the proprietor may if he thinks fit summon1"' Transfer of

the caveator to attend before the Full Court of the Supreme Qomt Land Act im-to show cause why such caveat should not be removed ;"' and such court may, upon proof that such caveator has been summoned, make such order in the premises either ex parte or otherwise and as to costs as to such court seems lit. In cases of urgency such summons may be made returnable before a judge of the Supreme Court in chambers and if such judge considers that the summons should be immediately or promptly heard he may, subject to appeal to the Full Court, hear and determine the same and exercise the powers hereinbefore conferred on the Full Court or he may without any application by either party refer such summons to the Full Court and may in any case make such order as to costs as he thinks fit. Except in the case of Except in a caveat lodged by or on behalf of a beneficiary claiming under any cavea"to?apse will or settlement or by the Registrar pursuant to the direction of the Jw'notice611

Commissioner every caveat lodged against a proprietor shall be deemed s>ven to to have lapsed upon the expiration of fourteen days after notice given ca,ea 01" to the caveator that such proprietor lias applied for the registration of a transfer or other dealing or the issue of a registration abstract. A caveat shall not he renewed by or on behalf of the same person in respect of the same estate or interest; but if before the expiration of Power to a judge the said period of fourteen clays or such further period as is specified operation of a in any order made under this section the caveator or his agent appears caveat

before a judge and gives such undertaking or security or lodges such sum in court as such judge considers sufficient to indemnify every person a.gainst any damage that may be sustained by reason of any disposition of the property being delayed,'6) then and in such case such judge may direct the Registrar to delay registering any dealing with the land lease mortgage or charge or issuing a registration abstract

(a) Whero a summons under the former section was dismissed for want of jurisdiction, the judge refused costs, adhering to the old rule, no jurisdiction, no costs.—Ex parte Goldsworthy, 8 A.L.T., 181.

Per Kerjerd, J., in Chambers.—" All that, Ex parte Vincent, and Ex parte Goldsworthy, can be taken to have decided is that the application to remove the caveat should bo made by summons returnable before the Full Court, but when a judge in chambers is satisfied as to the urgent nature of the matter, he may exercise the power vested in him when the Full Court is not sitting." —In re Johnson, 14 V.L.R., 218. The section now makes special provision.

On an application to remove a caveat it is not necessary that the summons should be signed by the judge in chambers; it is sufficient if it is signed by his associate. I t is not necessary that an affidavit in support of such summons should bo filed upon the issue of the summons ; it should be filed within a reasonable time boforo the return of the summons.—In re Wall, ex parte Pearson, 13 V.L.R., 484.

(b) I t is the duty of the vendor to have a caveat removed. Even whore it has lapsed, and the registrar is in error in treating it as in existence, a vendor is bound to take the necessary steps to compel the Registrar to register

a transfer.—Taylor v. Land Mortgage Bank of Victoria, 12 V.L.R., 748.

The court formerly decided that it had power to deal with costs in proceedings to remove a caveat. Re the caveat of Turner (7 A.L.T., 75) overruled.—In re Annand, 17 V.L.R., 108; and see In re Walker, 19 A.L.T., 32; 3 A.L.R., 133. The power to give costs is now specially provided for in the section.

An application by a registered proprietor for the removal of a caveat, on the ground thai; it would interfere with some future intended dealings with the land, will not be entertained by the court when it is admitted or shown that the caveat has been lodged in accordance with the Act, and by a person entitled to lodge it. In such a case, the registered pro • prietor should not seek to remove the caveat, but should leave it to the caveator to take stops to support his claim upon receiving notice that the registered proprietor has applied for tho registration of a transfer or other dealing in. accordance with the provisions of this section. —In re Talbot and Kelly, 13 A.L.T., 270.

(c) I t is better that an application of this character should not be made ex parte, but by motion upon notice as required by Order 52, rule 3.—Ex parte Peck, JO V.L.R., (L.), at page 329.

VOL. V . — 2 T


force. lb. s. 146.

cause. lb. 8. 147.

Transfer 0/ for a further period to be specified in such order, or m a y m a k e such land Act 1890. 0 £ u e r o r ( j e r a n c j [n e i t h e r case such order as to costs as is just.(a>

No entry to be 185. So long as any caveat remains in force prohibiting any bookeafferctfn8ger registration or dealing, the Registrar shall not except in accordance taiwhrchecaveat w i t n s o m e provision of such caveat enter in the register book any continues in ' change in the proprietorship of or any transfer or other instrument

purporting to transfer or otherwise deal with or affect the estate or interest in respect to which such caveat is lodged or issue any registration abstract.

compensation 186 . Any person lodging any caveat with the Registrar either caveat without against bringing land under this Act or otherwise without reasonable reasonable c a n s e shal l be liable to m a k e to any person who may have sustained

damage thereby such compensat ion as a judge on a summons in chambers deems j u s t and orders .

Memos, of 1 8 7 . A m e m o r a n d u m of every caveat lodged under t he provisions omxedSto° e of section one hundred and eighty-three shall be endorsed on the consent t"d g1''"1* or the certificate of the land or on the instrument to which it persons affected, relates, and a copy of the caveat or of so much thereof as the Registrar n. s. 148. deems material to the person notified shall be sent with the notification

required by section one hundred and eighty-four.

188 . Where a caveat has been lodged by or on behalf of a beneficiary claiming under a will or settlement and a change in the proprietorship of or a transfer or other dealing with or affecting the land estate or interest in respect of which the caveat was lodged is presented for registration, the same may notwithstanding section one hundred and eighty-five be registered without the caveat being withdrawn and without determining the operation of the caveat, provided the Commissioner is of opinion that such change of proprietorship or such transfer or other dealing is authorized by the will or settlement and the caveator either consents to the registration or does not lodge a written protest against such registration within fourteen days after being served with notice as such caveator.

A caveat on behalf of a beneficiary under a will or settlement need not be removed to admit registration of a dealing authorized by the will or settlement. 76. «. 149.

Powers of attorney and revocation thereof. lb. s. 150.

PART VIII .—POWERS OF ATTORNEY AND ATTESTATION OF INSTRUMENTS.

189. The proprietor of any land under the operation of this Act or of any lease mortgage or charge may appoint ahy person to act for him in transferring the same or otherwise dealing therewith by signing

(a) Where an order did not show upon the face of it, nor did it appear upon the affidavits upon which the order was drawn up, that the order had been made within fourteen days after notice to the caveator, it was held bad.—In re Wise, 2 V.R. (L.), 111.

Where a caveat had been lodged against the registration of a transfer, and an action in support of it had been dismissed, but an appeal had been lodged in the Full Court from such dismissal, the Kcgistrar proceeded to complete the registration of the transfer, notwithstanding the appeal. The court, on motion by the caveator, restrained the Registrar from registering any transfer or dealing by the transferees,

and restrained the transferees from dealing, pending the determination of the appeal, on security being given to indemnify them against any damage arising from such restraint in case appeal dismissed.—Bismondo v. Rismondo, 12 V.L.B., 1.

I t was held that an order extending the operation of a caveat headed in the matter of the Transfer of Land Statute, showed an intention to exercise the statutory jurisdiction conferred by this section, and might be made without terms as to any undertaking or security by way of indemnity, and it was not necessary that it should show that such undertaking or security had been dispensed with.—In re Fearnley, 2 A.L T., 32.


a power of attorney in the form in the Seventeenth Schedule. Transfer of Every such power shall be filed in accordance with the provisions of and Act 1890' Part XI . of the Instruments Act 1915, and if so filed within four schedule, months after the date thereof shall be deemed to be in force at the time of the filing thereof unless a revocation thereof has been previously registered under the said Act ;<°> but this shall not diminish the force and effect of any such power if filed afterwards. Any such power may be revoked in the cases and manner specified in such Act; and after the registration of any revocation of the power the Registrar shall not give effect to any transfer or other instrument signed pursuant to the power unless signed under any then outstanding registration abstract.

190 . A power of attorney given by a person before as well as Existing and after becoming a proprietor of any land or of any lease mortgage or attomey°wnenC'f

charge shall be deemed to be within the meaning of the last preceding flled available, section ; and every power of attorney heretofore given or whicha- *•161,

hereafter is given when filed shall while continuing in force be valid .and available within the scope and to the extent of the powers and authorities given or to be given by such power concerning the lands tenements and chattels real generally of the principal for similar or corresponding dealings under this Act with any land under the operation hereof or with any lease mortgage or charge.

191 .<*) Instruments and powers of attorney under this Act signed Attestation of by any person and attested by one witness shall be held to be duly JSfwlSs'o" executed and such witness may be— «torn,To

JO* 8. loZt

Within the limits of Victoria— Tranter of The Registrar or an Assistant Registrar or a justice of the peace J"™*Aa im

notary public barrister solicitor of the Supreme Court or Transfer of clerk to a solicitor of the Supreme .Court registrar offaÂciigii

county court clerk of petty sessions or commissioner for taking affidavits or any perpetual commissioner or town clerk shire secretary postmaster postmistress head teacher of State school bank manager or bank accountant secretary of building society minister of religion authorized to celebrate marriages within Victoria or any other person authorized in that behalf by the Governor in Council:

And without the limits of Victoria— Either a notary public or commissioner for taking affidavits or

else the mayor or other chief officer of any city or municipal corporation within the United Kingdom of Great Britain and Ireland or the officer administering the government of or the judge of any court of record in any British possession or the British consular officer (which expression shall include consul-general consul and vice-consul and any person for the time being discharging the duties of consul-general consul or vice-consul) at any foreign place; the Agent-General of the State of Victoria in the United Kingdom ; the mayor or other chief officer of any city or municipal corporation in any of the States of the

(a) In re Woods, 6 W.W. & a'B. (L.), 233, per the power is filed. Sed quaere, whether this state-Stawell, G.J., at page 235.—The Transfer of Land ment accurately represents the effect of the section. Statute .oortainly contemplates that a revocation (b) See the Evidence Act 1915 as to other may be filed at any time within four months before persons before whom attestations may be made.

2 T 2


Transfer 0/ Land Act 1890

Proof of signature.

Eighteenth Schedule.

No fees to be taken by Registrar or justice.

Commonwealth of Australia, New Zealand, or other British Possession ; the police magistrate, resident magistrate, stipendiary magistrate, or special magistrate, in any of the said States, New Zealand, or other British Possession ; the manager or accountant of any branch of any bank incorporated under the law of the Commonwealth of Australia or of any of the States thereof or of the Dominion of New Zealand or of the United Kingdom of Great Britain and Ireland ; the Registrar-General or Recorder of Titles in any of the said States ; a justice of the peace in any of the States of the Commonwealth of Australia ; and any other person whosoever who is authorized in that behalf by the Governor in Council.

Such witness whether within or without the limits of Victoria may also be any other person; but in such case he shall appear before one of the officers or persons aforesaid, who after making due inquiries of such witness shall endorse upon the instrument or power a certificate in the form in the Eighteenth Schedule; and such certificate shall be deemed sufficient proof of the due execution of such instrument or power. Where an instrument or power of attorney purports to be attested or a certificate purports to be signed as aforesaid the Registrar may take official notice of such signature and of the fact that the person attesting or signing possessed the requisite qualification. No fee shall be demanded or taken by any Registrar Assistant Registrar or justice of the peace for attesting within Victoria any instrument or power of attorney under this Act; and any Registrar Assistant Registrar or justice of the peace who demands or takes any such fee shall be liable to a penalty of not less than Five nor more than Twenty pounds.'")

Nothing in this section shall limit or affect the provisions of the Evidence Act 1915 enabling instruments to be attested without the limits of Victoria.

Transfer of Land Act 1903 «. 4.

PART IX.—REGISTRATION ABSTRACTS, SEARCH CERTIFICATES, AND STAF ORDERS.

Registration 192 . The Registrar upon the application of any proprietor of land registering1 under the operation of this Act shall issue to such proprietor a regis-the'Ssof10"' tration abstract in the form in the Nineteenth Schedule, enabling victoria. }nm to transfer or otherwise deal with his estate or interest in such land schedule.'11 at any place without the limits of Victoria, and shall at the same time ib. s 153. enter in the register book a memorandum recording the issue of such

registration abstract, and shall endorse on the duplicate grant or certificate of title a like memorandum; and after the issuing of such registration abstract no transfer or other dealing in any way affecting the estate or interest in respect of which such registration abstract is issued (excepting under the sections hereinbefore contained relating to a sale under a writ of fieri facias or a decree or order of the Supreme Court or of a County Court and to the insolvency of a proprietor) shall be entered in the register book, until such abstract has been surrendered to the Registrar to be cancelled, or the loss destruction or obliteration of such abstract has been proved to the satisfaction of the Commissioner, or the time during which it is to continue in force has expired.

(a) An attestation by a bank manager who was a justice of the peace to a mortgage to the bank was held valid.—Bank of Victoria v. McMichael, 8 V.L.R. (L.), 11.


1 9 3 . Whenever any transfer or other dealing is intended to be Transfer of transacted under any registration abstract, the transfer or such other f.°m.Act 1890

instrument as the case may require shall be attested by some one of the Mode of persons herein authorized to attest the signature to instruments signed re™!!s<trationnd';r

without the limits of Victoria; and upon a memorial of such instrumentab8tract-being entered upon the registration abstract and also upon the duplicate grant or certificate and authenticated by the signature of such authorized person as aforesaid, the instrument to which such memorial refers shall be held to be registered; and such transfer or other dealing shall be as valid and binding to all intents as if the same had been entered in the register book by the Registrar and signed by him; and the certificate of registration endorsed on the instrument of which the memorial has been so entered and signed by such authorized person shall be received in all courts of law or equity as conclusive evidence that such instrument has been duly registered.

194. Upon the delivery of any registration abstract to the Registrar, Proceeding upon he shall enter in the register book in such manner as to preserve their regiStion priorities every transfer or other instrument signed thereunder, and R ^ ^ ' J 0 the

shall cancel such abstract and note the fact of such cancellation in the it.«. IBS. register book; and if the land is transferred, the duplicate grant or certificate of title shall be delivered up to the Registrar, who shall thereupon proceed as is hereinbefore directed in the case of an ordinary transfer.

195. Upon proof at any time to the satisfaction of the Com-procedure when missioner that any registration abstract has been lost or destroyed or is aSS'lost so obliterated as to be useless and that the powers thereby given have n.«. i56. never been exercised or, if they have been exercised, then upon proof of the several matters and things that have been done thereunder, it shall be lawful for him to direct the Registrar as circumstances require either to issue a new registration abstract, or to make such entries in the register book or do such acts as might have been made or done if no such loss destruction or obliteration had taken place.

196. Any person desiring to learn whether a proprietor is Persons desiring able to deal with the land comprised in his certificate free from ["'whether"M

obstruction caused by any caveat or instrument lodged for registration proprietor is free order injunction or other cause known to the Registrar but not appear- obtain such ing upon the certificate, may sign an application for a search certificate °ertlfl^*e-in the form in the Twentieth Schedule ; and on payment of the Twentieth fee in that behalf provided the Registrar shall cause the necessary schedule, searches and inquiries to be made for the purpose of affording the information required; and the result thereof shall be certified in the form in the said schedule contained by affixing the seal of the office with the initials of the officer attaching the same and the day hom- and minute at which the seal is affixed.

197. Such search certificate shall refer to the dealing or encum-person applying brance last noted on the certificate of title for the purpose of showing cer/Se the state of the register at the time of issuing the search certificate but entitled to not of informing the person applying for the search certificate as to certificate of what is upon the certificate of title ; and such person shall be entitled ^lej 15g


Transfer of to inspect the certificate of title and shall be deemed to know all of Land Actum. ^ ^ a n i n S p e c t i 0 n of the certificate of t i t le would have informed

him.

Person 1 9 8 . Any person proposing to deal for value with a proprietor §eaFwSft0 may, with the consent in writing of such proprietor or Ms agent obtSnttay™?7 authorized in writing in that behalf and on stating the particulars of registration for the proposed dealing, lodge with the application for search certificate hoursTtitie be an application for stay of registration in the form in the Twenty-first Twent nrat8'-S Schedule; and if the result of the search shows that the pro-soheduie. prietor is free to deal, the Registrar shall on payment of the fee in that ib. 1.159. behalf provided sign an order in the form in the said schedule staying

registration of any instrument affecting the land to be comprised in the proposed dealing for forty-eight hours from the time mentioned in the search certificate; and the said order shall be affixed to the certificate and a copy thereof given to the applicant.

Instrument 199. If within the said period of forty-eight hours a properly per-propSeddeaiing fected instrument effecting the proposed dealing is duly lodged for - i - ° - j i - registration, such instrument shall have priority over any other in

strument which is lodged for registration after the time mentioned in the search certificate, and the same shall be registered notwithstanding any caveat copy of writ or application by an assignee or trustee in insolvency which has been lodged in the office after the time mentioned in such search certificate.

entitled to

Jiriority if odged within

forty-eight hours. lb. s. 160.

Instrument to be 2 0 0 . Subject to the lodging of such duly perfected instrument hTvTprior'i'ty*0 within such period, any other instrument and any caveat copy writ or according to th* application received in the office during such period shall be dealt with ordinary course . 1 r o . r

if proposed m the same manner shall have the same priority as between themselves lodêd^for and shall be as effectual as if no stay of registration had been obtained. registration. Ib. s. 1«1.

PART X.—SURVEYS PLANS PARCELS AND BOUNDARIES. Commissioner may require special survey of land. Ib. s. 162.

Commissioner may require accuracy of survey to be verified. Ib. 8.163.

201. On any application made to bring land under this Act or to have a certificate of title amended as to the description of land therein as hereinafter authorized, and on any proposed subdivision under section two hundred and eleven of this Act, the Commissioner may require such survey and plans to be made and such particulars of the boundaries abuttals adjacent buildings of stone or brick area and position to be furnished at the cost of the applicant or registered proprietor as the Commissioner thinks fit. All surveys required by the Commissioner in bringing land under this Act shall be made by a licensed surveyor unless the Commissioner otherwise directs.

202. The Commissioner may require any such survey to be tied on to any general or local survey of Victoria or any district city or town at such permanent datum or other points of connexion and the measurement of the boundaries to be commenced from such starting-point on the land and carried round the boundaries in such direction and order as he directs ; and he may require the accuracy of any such survey to be verified by the signature of the surveyor making the same.


2 0 3 . In dealing with any applications involving the amendment Transfer of

of a certificate or adjustment of boundaries the Commissioner may ^"l1'^/,c(139°

disregard any difference in the dimensions of boundaries or any en- commissioner croachment excess or deficit which does not exceed the margin of error "rors ofegard

allowed in the description of boundaries by Part XVI. of the Real^hdHot Property Act 1915. exceedthose

1 u mentioned in this Part.

'204. Where a block of land has been subdivided into allot- Excess of land ments and by reason of erroneous measurements in the original apportioned survey the area of the block as marked on the ground exceeds the d£e

eent owners

sum of the areas of all the allotments and roadways (if any) as or proprietors, shown by any plan or description used at the sale thereof or by the lh'"'165' grants or certificates of title ot such allotments, the total excess of area of the block shall be deemed originally apportionable amongst the allotments and roadways (if any) jjroportionately to their relative dimensions, and if the area of the land included in any application to bring land under this Act or for an amended certificate is in the applicant's possession and was in the possession of the applicant or of him and those through whom he claims for a period of not less than fifteen years previous to the application and does not exceed the area attributable to the allotment or allotments or fraction of an allotment represented by the land included in such application after such apportionment of excess as aforesaid, the Commissioner may without ascertaining the dimensions of the other allotments or fraction of allotment and without the consent of the owner or owners thereof issue a certificate in respect of the land included in such application as if the whole of it had been included .by metes and bounds in the original grant or certificate thereof.

2 0 5 . Where a block of land has been subdivided and the whole or The com. part thereof sold in allotments according to a plan of subdivision but SrnSnV™^ such block is altogether or in part unoccupied, and by reason of errors boundaries of of survey or misdescription in the muniments of title the boundaries old subdivisions, and positions of such subdivisional allotments cannot be ascertained n- '•166-

with certainty or are found to be inconsistent with each other and with the scheme of subdivision indicated by what appears on the ground or in the muniments of title, then if it is upwards of fifteen years since the original subdivision was made and if the original external survey boundaries of such block can be determined and sufficient evidence is available to satisfy1 the Commissioner as to the governing features of the original scheme, the number and relative positions and relative dimensions of the subdivisional allotments roads streets and ways, he may upon an application to bring any such subdivisional allotment or allotments under this Act, or where such land is already under this Act, to have a separate certificate of title issued for such allotment or allotments, or an existing certificate amended, cause a survey to be made and if it is found that such land or any portion thereof has been erroneously described as regards position dimensions or area, or that an excess or deficiency of measurement exists he may, if of opinion that such a course is necessary and expedient for the recognition or issue of titles to land comprised in the said block, prepare a scheme of subdivision of the whole or any portion of such block agreeing as near as may be with


Transfer of Land Act 1S00.

A plan of scheme to be made.

76. «. 167.

Notice to be advertised and given to registered owners and proprietors. lb. s. 168.

the original scheme as indicated by snch evidence as aforesaid, and for that purpose may adjust and determine all or any of the boundary lines aud the position and dimensions of the roads streets and ways, and apportion any excess either in accordance with the last preceding section of this Act or in such other manner as he deems equitable and expedient for the purposes of such subdivision.

206. The scheme of subdivision so prepared shall be embodied in a plan and adopted provisionally for the purposes of the notices hereinafter mentioned.

207. After such plan has been constructed the Commissioner shall in addition to any other notices which he thinks fit direct notice of the proposed subdivision to be advertised once at least iu a newspaper published in Melbourne and in a newspaper (if any) published and circulating in the neighbourhood of the land, and also to be served upon all persons appearing by the register to be owners or proprietors of the fee simple of any piortion of such land by sending the same through the post-office in a registered letter marked on the outside "Office of Titles" to the address appearing upon the register and also to any other address ascertained by the Commissioner to be the address for the time being of the person notified; such notice shall state that such provisionally adopted plan can bo inspected at the Office of Titles, and appoint a time not less than fourteen days nor more than six mouths within which objections or proposals to alter the same and evidence in support of such objections or proposals will be received by the Commissioner. But it shall be in the discretion of the Commissioner whether or not he accedes to any objections or adopts any alteration submitted to him upon such notice; aud if he does adopt any such alteration, whether or not any aud what notice thereof shall be given to all or any of the persons previously notified.

208. After a scheme of subdivision has been finally decided upon, the plan embodying i t shall be verified by the Commissioner aud Chief Draf tsman or officer discharging the duties of Chief Draftsman signing a s ta tement written on the face of the plan in the form in the Twenty-second Schedule, and the plan so verified shall be marked with a dist inguishing symbol and kep t in the Office of Titles as au approved lodged m a p of subdivision, and shall as from the date of such verification govern the titles thereafter issued under this Act to the block so subdivided or any portion thereof. And the remedy of any person having an estate or interest in the land subdivided or in any portion thereof who is injured by any certificate of t i t le issued in pursuance of such subdivision shall lie in damages only, aud the same may be sued for aud recovered iu manner indicated by section two hundred aud fifty-two.

Notice of sub- 2 0 9 Notice of such subdivision and verification of the plan shall to"e puNished" be published in the Government Gazette and in some newspaper circu-^nt Gazettt l a t ing in the neighbourhood of the land.

Expense of 2 1 0 . The expense of any survey which the Commissioner survey how paid. c a n s e s t 0 ije m a ( j e under section two hundred and five shall in the

first instance be defrayed out of the consolidated revenue, but every applicant who after such subdivision applies to bring any portion of

The sub-divisional plan to be signed by the Chief

, Draftsman and Commissioner and become a lodged map of subdivision. Twenty-second Schedule. lb. 8. 169.


the land comprised in such subdivision under this Act or to have a cer- Transfer of tificate issued or amended as to any such land for the first time after Land Act 1890-

such subdivision shall in addition to any other moneys chargeable in such case pay to the Registrar (to he by him paid into the consolidated revenue) such amount as the Commissioner shall under his hand certify to be in his judgment an equitable share of such expense to be contributed in respect of the land comprised in such application.

211. Any proprietor subdividing any land under the operation of Proprietor

this Act for the purpose of selling the same in allotments shall deposit ^^^mipS with the Registrar a map of such land if so required. Such map shall required, exhibit distinctly delineated all roads streets passages thoroughfares 7 ' 's '172 ' squares or reserves appropriated or set apart for the use of the purchasers, and also all allotments into which the said land is divided Land marked with distinct numbers or symbols, and shall also show the areas, fs9Rs^'Act

and shall be declared to be accurate by a statutory declaration of a licensed surveyor.(a>

212. After the subdivision of land and deposit of pla >U Number of

under the last preceding section, the numbers of the allotments p n'ofsubdi-marked upon such plan maybe used as sufficient description of the ™g

l™ s^01f™

t

land for the purpose of dealings with any one or more of such purposes of allotments on the sale thereof according to such plan of subdivision, &Tmmf'erof and on any subsequent dealings comprising the whole of one or more £<*«<* â isw allotment or allotments.

213. On an application to bring land under this Act or for a n Abuttals may be

amended certificate, the land included in the certificate to be issued SrafoTiîlf" shall, at the request of the applicant, and may at the discretion of the certlflcate-Commissioner, notwithstanding sections twenty-four and forty-seven -8,14-and the Third Schedule, be described by its abuttals both in the Third body of the certificate and in the plan thereon or in the plan only. Schedule-Any abuttal so used may be described by the name by which it is commonly known and with or without the name of its reputed owner; aud Manner in which

if the abuttal is upon or consists of land under this Act, the volume Ssed^dSbe and folio of the certificate of the land constituting the abuttal or on boundi»-ies. which the abuttal stands shall be mentioned ; and abuttals shall be used in addition to and not in substitution for dimensions, unless the Commissioner specially authorizes the land or any boundary of the land being described by abuttals only.

214. For the purpose of this Act, any of the objects hereinafter objects which mentioned may be mentioned as an abuttal:—Any building, wall, "bu

yttaS>snstltute

sectional division of party wall, fence, public or private street or road, n.«. 175. lane or passage, land dedicated to or reserved for the public, Government reserve, Crown section allotment or portion, land described in any

(a) In an action for the recovery of land, where it actually appears on the ground, but is, where the plaintiff's certificate of title refers not conclusive. On proof that such plan had to a plan of subdivision as being lodged in the been lost in the Titles Office, a copy of it on which Titles Office, that is evidence as against him that the office have for some years acted was ad-such plan was so lodged. Such plan of submitted as secondary evidence of the plan of division comprising the allotments of the plain- subdivision for the same purpose.—Kelly v. tiff and the defendant is admissible in evidence Girdler, 12 V.L.R., 851. to show that the corner of two streets forming And see note to heading to Part XII., InreTht the commencing point of both plaintiff's and British Bank of Australia, re Evans. defendant's measurements ought not to be



certificate of title, and any bay lake river creek or natural or artificial water-course ; and mention of an abuttal in any certificate of title shall not be deemed to give title to the abuttal or to be evidence of the title of any person who is referred to in the description as owner or occupant of the land upon which any abut ta l stands or of any laud consti tuting an abut ta l .

P A E T X I . — R E C T I F I C A T I O N OF CERTIFICATES.

proprietor may 2 1 5 . A proprietor may apply to have his Crown g ran t or certificate amendment of °^ ^ l e a i Q ended in any case iu which the boundaries area or position certificate to of the land therein described differ from the boundaries area or position coincide with of the land actually and bondjide occupied by him and purporting to be unde certilicite. s 0 occupied under the t i t le in respect of which the certificate issued, or it. s. 176. in any case in which the description in the certificate is erroneous or

imperfect on the face of it.<a>

Proprietor may 2 1 6 . A proprietor may apply for the rectification of the original other certificates and duplicate certificate of any other proprietor or proprietors in any inconsistentere case in which the land described in the applicant's certificate and uo onhe andTn actually and bona fide occupied by him comprises land which by reason hiscertiflcateand 0f a n y error in survey or other misdescription is included in the land occupied by him. n -i j • .i i-n , ,-c J. it. s. 177. described in any other certificate or certificates.

(a) A. and B. were adjoining land-owners, a portion of A.'s southern boundary, which on the Crown grants was shown as a straight line, forming the northern boundary of B.'s land. A boundary fence was erected which was slightly to the north of the straight line between A.'s south-east and south-west corners. A. subdivided the eastern portion of his land, and laid out a road 63 feet wide running close to his southern boundary. He intended to reserve a narrow strip 3 feet wide, running between the southern boundary of the road and B.'s land, but, as a matter of fact, he had only sufficient land to enable him to retain a strip of something under 2 feet. A. then applied to have his land brought under the Transfer of Land Act, and owing to errors in survey and to statements in the application as to the extent of occupation, obtained a certificate of title which showed him to be entitled to portion of the reserve on the south of the boundary fence, which portion B. had occupiod originally under his Crown grant, and had continued to occupy for over thirty years. Subsequently B. applied to have his land brought under the Act, but owing to errors in survey the certificate issued did not accord with his occupation, though it possibly included the land in dispute in this action, which had previously been included in plaintiff's (A.'s successor in title) certificate. A. then subdivided the western portion of his land, intending, as shown by the subdivisional plans lodged in the Titles Office, that at this part the road continuation should be 65 feet wide and the reserved strip 1 foot wide. In fact, the whole of this 1 foot strip was south of the boundary fence, so that the western portion of B.'s land abutted on the road. B. applied to havo his certificate amended so as to accord with

his occupation, and to show that part of his land abutted on the road.

Held, that the land to the south of the boundary fence had been included in A.'s certificate by a wrong description of parcels or boundaries, and that B. was entitled to have his application granted.

Where the same piece of land is included in two certificates of title, ordinarily the prior certificate is conclusive, but this is not so where the land has been included in the prior certificate through a wrong description of boundaries, or where the holder of the subsequent certificate has acquired rights to it by adverse possession before the issue of the prior certificate.

In the absence of the original survey marks, there can be no better indication of the land to which a Crown grant relates than long and unchallenged occupation.

The Commissioner's powers in rectifying certificates are not limited to correcting mistakes entirely due to his officers, but extend to mistakes induced by the acts of applicants.

The Commissioner's powers to rectify certificates under this Part of the Act are not'limited to obvious blunders. He is a judicial officer, and has a wide jurisdiction over boundaries. —National Trustees, <Ssc, Co. v. Hassett, 1907 V.L.R., 404.

Where town land was sold by admeasurement it was found that a boundary wall was beyond admeasurement and also beyond vendor's certificate of title. The court refused to decree specific performance or to order him to get an amended certificate of title under this section.—Perrin v. Reynolds, 12 V.L.R., 440.

See this and the next section discussed in Pleasance v. Allen, 15 V.L.R., 601.


217. Any application to be made as aforesaid shall be in the Transfer of

form set forth in the Twenty-third Schedule, and the attorney of any f"$f. Act 1S90

corporation registered as proprietor may apply on behalf of the corpora- Form of tion in manner provided by section eighteen. T^T'-thM

218. The Registrar shall refer any application made as aforesaid HOW application to an Examiner of Titles who shall report thereon and submit the t obedea l t vvlth-same to the Commissioner for his direction, who shall direct notice of the application to be advertised once at least in one newspaper published in the city of Melbourne or circulating in the neighbourhood of the land, and to be served on any persons named by him, and to be posted in a conspicuous place outside a post office in the neighbourhood of such land, and shall appoint a time not less than fourteen days from such notice or from the advertisement or the first of such advertisemeuts if more than one on or after the expiration of which the application may be granted unless a caveat is lodged forbidding the granting thereof.

219. In any case in which the granting of an application to be Special notice to

made as aforesaid or of an application to bring land under this Act pro^rietora°ther

would affect land comprised in any other certificate or cause a certi- where appiica-. i ' i i l l * * j i ' i ,, . . / , , tion affects land

ficate to issue which would be inconsistent with any other certificate the described in Commissioner shall, in addition to any other notices which he jb't'tso. requires, direct notice of the application to be served upon all persons appearing by the register to be the owners of an estate in fee simple in or lessees or mortgagees of the land which would be affected or the land comprised in the certificate as to which the inconsistency would arise, accompanied by a plan showing accurately the extent to which the certificate thereof would be affected if the application was granted, and a copy of such plan shall until such application has been finally dealt with be kept open for inspection at the Office of Titles.

220. The Registrar shall under such direction as aforesaid cause Notice of notice to be published in such manner as by such direction is pre- p^

p>SdIandbe

scribed that application has been made to amend the certificate of title p°sted in oiBce

in the manner specified, and shall cause a copy of such notice to be ' *'181' posted in a conspicuous place in the Office of Titles together with a plan such as is mentioned in the last preceding section and shall send through the post office a registered letter marked outside " Office of Titles" to every person whom the Commissioner has directed to be served with notice; - and notwithstanding any direction given by the Commissioner as to any such application, he may reject the same if the applicant does not comply to his satisfaction within such time as to him seems reasonable with any requisition which lie has made in regard to such application.

221. Any person claiming any estate or interest in the land in Person objectin respect of which any such application is made as hereinbefore pro- beingPgrailted vided may before the granting thereof lodge a caveat with the Registrar may lodge forbidding the granting of the application; and every such caveat shall iê,a182. in all other respects be in the same form shall be subject to the same provisions and shall have the same effect with respect to the application against which it is lodged as an ordinary caveat against bringing land under the operation of this Act.


Transfer 0/ 222 . On any application under sections two hundred and f."m.Aet 189° fifteen or two hundred and sixteen or to bring land under this Application may Act, the Commissioner may grant the same although the certificate aftho ifother to be issued or the rectification of the register to be made upon such berofleotedmny application may affect land comprised in any other certificate if it thereby. appears that the land so affected lias been included in such other

certificate by reason of some error in survey or other misdescription unless the title to the land so affected has been theretofore determined'") in a contested proceeding under this Act or in any court of competent jurisdiction in which the right, to the possession of such land was in question.

on granting 2 2 3 . Upon granting any such application, the Commissioner shall other°cert"ficate direct the Registrar to rectify the register by malting the requisite may be rectified, alteration in the original of any other certificate, accompanied by a

statement made and signed by him in the register book of the circumstances under which the rectification has been made; and the Registrar shall make the requisite alteration in the duplicate certificate when brought to him for that purpose or when the same is lodged in or brought to the office for the purpose of any dealing with the land comprised therein, and may detain the chrplicate until the rectification thereof is completed; and the Registrar may refuse to register any dealing with the land or any estate or interest therein until the duplicate has been brought in for rectification.

Ib. s. 184.

Proprietor of land as to which certificate is rectified to have notice of rectification and to issue of substituted certificate. lb. s. 185.

2 2 4 . Upon rectifying the original of any certificate as hereinbefore mentioned, the Registrar shall give notice in writing to the proprietor of the laud comprised in the certificate informing him of the rectification, and that on the duplicate certificate being brought in to the Office of Titles a new duplicate certificate with the amended description will be issued to him free of cost; and on the same being brought in the proprietor shall be entitled to receive a new duplicate certificate with an amended description in substitution for the duplicate certificate so brought in; and every new certificate so issued shall bea,r the same numbers as that for which it is substituted with the word " substituted" prefixed to the volume and folio.

PAET XII.—SPECIAL POWERS AND DUTIES OF THE COMMISSIONER'6' AND REGISTRAR.'"'

power to the 2 2 5 . The Commissioner may, by summons under his hand in ri0quSreSSlonertothe form in the Twenty-fourth Schedule, require the proprietor or explanation and mortgagee or other person interested in anv land under the operation of production of . ° ° . r „ . . , „ - . ^

documents. this Act, in respect of which any transfer lease mortgage charge or ib. s.m. other dealing or any discharge from any mortgage or charge is proposed schcduie.our to be transacted or registered, or in respect of which any transmission

(a) Sembh, section 222 should be read as if the words " against the applicant" were inserted after the words " unless the title to the land so affectod has been therefore determined."— National Trustees, &c, Co. v. Hassett, 1907 V.L.R., 404.

(6) The Commissioner has both ministerial and judicial functions to perform. He must be

guided by the rules of equity, so far as this Act permits.—Ex parte National Trustees, Executors, and Agency Co., 19 A.L.T., 222; 4 A.L.R., 76.

An instrument of transfer, purporting to bo a transfer on sale from an administrator to a

(c) See next page.


is proposed to be registered or registration abstract issued, to appear at Transfer of a time and place to be appointed in such summons and give any Land Aci n

explanation concerning such land or any document affecting the title thereto, and to produce any grant certificate of title will mortgage ox other instrument or document in his possession or within his control affecting such land or the title thereto.; and the Commissioner is hereby authorized to examine upon oath (which oath he is hereby empowered to administer) any such proprietor mortgagee or other person as aforesaid; and any such proprietor mortgagee or other person who fails refuses or neglects to attend the Commissioner for the purpose of being examined or to produce any such document or to allow the same to be inspected or refuses or neglects to give any such explanation as aforesaid shall be liable on any such default to be dealt with as in the case of a contempt of the Supreme Court; and if the information or document withheld appears to the Commissioner to be material the Registrar shall not be bound to proceed with the transaction.

purchaser, having been lodged for registration at the Office of Titles, more than twenty-five years after the death of the intestate, the Registrar of Titles made a requisition that the administrator should justify the sale, or produce the consent of the intestate's next-of-kin to such sale, and, on the administrator refusing to comply with this requisition, declined to register the transfer.

Held, that the Registrar of Titles had no authority to require such a requisition to be answered before registering the transfer lodged.

Per a'Beckett, J.—He would have had authority if the consent of next-of-kin had been necessary to sale for the purpose of distribution.

Semble, per Madden, C.J.—The Registrar of Titles is under no duty and has no right to inquire into equities extrinsic of and not appearing ex Jade in the documents submitted to him or lodged in the Office of Titles.—Ex parte. The Equity &c. Co. and O'Halloran, 1911 V.L.R., 197, and see note to section 264.

John Danaher, as administrator of Denis Danaher, was the registered proprietor of an estate in fee simple in a piece of land under the Transfer of Land Act 1890. The next-of-kin of Denis Danaher, in consideration of natural love and affection, assigned their interests in the land to John Danaher. John Danaher executed a transfer of the land expressed to be made by himself as administrator to himself personally and in pursuance of the assignment. The Registrar refused to register the transfer until proof was given that the next-of-kin had independent advice and understood the nature and effect of it.

Held, by the Full Court, affirming the decision of Hodges, J., that—(1) the transfer by John Danaher as administrator to himself personally was a valid transfer; (2) the assignment by the next-of-kin being good on its face, the Registrar was not entitled to insist on the above requisition being answered.—Hoshen v. Danaher, 1911 V.L.R., 214. .

(c) B. and M., the executors and trustees of the

will of Mary MoMurchy, were registered as proprietors of an estate in fee hi a certain piece of land. By her will the testatrix provided that her trustees should pay the income of her residuary estate to M.A.R. during her life, and, after her death, should hold the property upon trust for such of the children of M.A.R. as being sons should attain the age of 21 years, or being daughters should attain that age or bo married. M.A.R. had two children, both of whom were now over the age of 21. By an agreement entered into between the trustees, M.A.R., and her two children, it was agreed that M.A.R. should release the land from all claims ,-by her, and that the trustees should transfer a portion of it to eaoh of the children. In pursuance of this agreement, the trustees executed a transfer transferring a portion of the land to one of the children, and lodged it for registration. The Registrar refused to register the transfer unless it were shown that there was no possibility of M.A.R. having further issue.

Held, that, the transfer not being a maniiest breach of trust, the Registrar was not entitled to call upon the trustees to prove that in no possible circumstances could it be a breach of trust. Registration ordered.—The King v. Registrar of Titles, ex parte Briggs, 1913 V.L.R., 549.

Where, in a plan of subdivision lodged in the Office of Titles under section 211, a portion of the land subdivided was shown as a park, but the plan contained no expression of the intention of the proprietor to set apart the park for the purposes of purchasers of subdivisional allotments, and the transfers of such allotments, though referring to the plan, contained no reference to the park: Held, that the Registrar of Titles was not justified in refusing to register transfers of portion of the park on the ground that it had been appropriated for the benefit of purchasers of adjoining allotments, and, quaere, if such refusal would have been justified if the plan had contained an expression of intention to so appropriate the park. —In re the British Bank of Australia, re Evans, 21 A.L.T., 148; 5 A.L.R., 292.


Transfer of 2 2 6 . The Commissioner may from time to time, with the consent fai87.Actim of the Governor in Council, make regulations respecting the parcels of Power to make land that may be included in one certificate of title, and may with the regulations and like consent repeal or alter such regulations ; and he may also with the to alter forms jike consent from time to time make such alterations in the several

forms in the several schedules hereto as he deems requisite, and may license any person to sell the same forms ; and every form authenticated by the seal of the office shall be taken to be in the legally authorized form unless the contrary is proved.'0)

of ins t ruments &o.

Registrar to 2 2 7 . Whenever any person interested in land under the operation vestuiglmsfer °^ * m s Act o r a n y e s t a t e or interest therein appears to the Supreme estate. lb. s. 188. Transfer of Land Act 1903 8. 5. Trusts Act 1891». 12.

Court(6) or to a County Court in its equitable jurisdiction or to the Commissioner'0) to be a trustee of such land estate or interest within the intent and meaning of any Act now or hereafter to be in force relating to trusts and trustees, and any vesting order is made in the premises by either of the said courts or by the Commissioner (which order he is hereby empowered to make concurrently with the Supreme Court), the Registrar on being served with such order or an office copy thereof, shall enter in the register book and on the duplicate grant or certificate of title and duplicate instrument (if any), the date of the said order, the time of its production to him, and the name and addition of the person in whom the said order purports to vest the said land estate or interest; and upon such entry in the register book such person shall become the transferee and be deemed to be the proprietor thereof. Unless and until such entry is made the said order shall have no effect or operation in transferring or otherwise vesting the said land estate or interest.

Power to Com- 2 2 8 . If it is proved to the satisfaction of the Commissioner tha t makeTvesting land under this Act has been sold by the proprietor and the whole of coni'ie'ted'363 °' t Q e P u r c n a s e money paid and tha t the purchaser or those claiming under purchase. him has entered and taken possession under such purchase and such I»n3<lc/!i89o e n t r y and possession have been acquiesced in by the vendor or Ids '•189- representatives but that no transfer or formal conveyance has ever been

executed by the vendor and cannot be obtained by reason that the vendor is dead or residing out of the jurisdiction or cannot be found, the Commissioner may in his discretion make a vesting order in the premises, and the Registrar on being served with such order shall make the entries directed to be made by the last preceding section of this Act in the case of the vesting orders therein mentioned and the making

(a) The preparation of a transfer by persons other than legal practitioners was held to bo forbidden—In re Strong, 4 A.J.K., 150.

(6) For a case in which the court made a vesting order, see In re Philpott, 4 V.L.R. (E.), 20.

Where an assignee of insolvent estate left the jurisdiction without carrying out an order to convey made in an action, the court did not make a vesting order, but appointed another person to convey.— Gurwen v. Mullery, 9 V.L.R. (E.), 151.

The provisions of section 38 of the Trusts Act empower the court to make a vesting order with respect to land under the operation of the Transfer of Land Act.

The form of ordor considered.—In re Fink, 1910 V.L.R., 336.

(c) This section enables the Commissioner to make an order only in cases in which the Supreme Court would have such power under section 38 of the Trusts Act, and such power can be exercised by him only after compliance with the formalities which would be observed by the Supreme Court; and, inasmuch as the court would not make an order vesting land in new trustees without notice first being given to the old trustees in whose names it stood, the Commissioner cannot do so till such notice is given.—Werner v. Boehm, 16 V.L.R., 73.


or the omission to make such entries shall be attended by the same Transfer of results as declared by the said section in respect of the vesting orders Land Acl 189a

therein mentioned.

229. If it is proved to the satisfaction of the Commissioner certain eneum-that the rights of an official assignee or trustee in insolvency, or „™"Craa!!eTto of an execution creditor notified as an encumbrance on the certificate, ^"o'removed have been fully satisfied extinguished or otherwise determined and no from the register. longer affect the land comprised in the certificate, the Commissioner Ib- '• m

may either direct a statement to that effect signed by the Registrar to be endorsed on the certificate or permit any subsequent certificate dealing with the same land to be issued free from such encumbrance.

230. On proof to the Commissioner that any judgment of which satisfaction of a copy writ of execution has been entered under section one hundred

De entered before and seventy-eight has been satisfied before the period for which such * three'rnt'nths entry is operative has elapsed, the Commissioner may write the word '«n>> t h ^ t

t r y

" Satisfied" with his signature and the date of the signing upon or 0n^ln_

below the entry of copy writ in the register book, and thereupon such writ shall cease to affect the land as to which the entry was made.

231. If at the time when any mortgage conveyance or transfer commissioner or on sale of any real property or any application or consent under this Act null may0

which is liable to duty under Parts II . and III. of the Stamps Act 1915 is ^™st?sXPT

left at the Titles Office there is affixed thereto an adhesive stamp uncan- real property, celled or only partially cancelled it shall be competent for any officer lb' '•192,

authorized by the Commissioner or Registrar to cancel such stamp as if he was the person by whom it was affixed, and upon his so doing such mortgage conveyance transfer application or consent shall be deemed to be duly stamped and as valid in all respects as if the stamp had been duly cancelled by t h e person by whom it was affixed. Provided that in the case of receipts and conveyances or transfers on sale the stamps shall be so cancelled subject to the penalties and within the times provided by section twenty-eight of the Stamps Act 1915.

232. Upon the receipt of an office copy of the probate of any will Entry tobe or of any letters of administration or of a rule to administer granted to register book of

the Curator or of any rule or order whereby it appears that any person J ^ ™ * ° ' has been appointed the executor or administrator of any deceased administrator. person,<°> and upon the notification in the Government Gazette ofIK * • m

the appointment of any succeeding Curator, the Registrar of Titles shall on an application in writing of the executor administrator^) or Curator (as the case may be) to be registered as proprietor

(a) This means the person whose name is in or letters of administration to his estate ; and see the- body of the certificate, and does not include also Hoshen v. Da/nether, 1911 V.L.R., 214, cited in a person registered by memorandum as an note to heading to Part XII. executor.—Ex parte Miller, 1914 V.L.R., 387. Only the representative of a person who was

(6) The administratrix of an administratrix is registered in his own right as proprietor is entitled not entitled to be registered as proprietor of land to be registered under this section, and therefore belonging to the estate of the original intestate.— an executor of a person who was registered as In re O'Connor, 24 V.L.R., 896; and see In re executor must show either that he was a sole Thomas and McKenzie's Contract, 1912 V.L.R., 1, executor or that any other executor or executors where it was held that section 6 of the Administra- have died or did not appear after citation or tion and Probate Act 1890 vested the legal estate renounced probate or have been removed.—R. v. in realty held by an executor in his executor or Registrar of Titles, ex parte Miller, 1914 V.L.R., administrator upon grant of probate to his will 387.


Transfer of land Act 1890.

in respect of any land therein described enter in the register book upon tlie leaf constituted by the grant or certificate of title of such land a memorandum notifying the appointment of such executor administrator or Curator, and tlie day of the death of the proprietor when the same can be ascertained, and upou such eutry being made such executor administrator or Curator shall become the transferee and be deemed to be the proprietor of the estate or interest of the deceased proprietor in such land or of such part thereof as then remains unadmiuistered and shall hold the same subject to the equities upon which the deceased held the same, but for the purpose of any dealings with such land every such executor administrator or Curator shall be deemed to be the absolute proprietor thereof. If in any case probate or administration is granted to more persons than one all of them for the time being shall join and concur in every instrument relatiug to the land. No contribution to the assurance fund under this Act shall be payable on the registration of such executor administrator or Curator.

Powers of Hegistrar.

To administer oaths. lb. s. 194

To correct errors.

To entei caveats.

2 3 3 . The Registrar may exercise and shall perform the following powers and duties (that is to say):—

(i.) He may administer an oath and may take and receive the declaration of any person voluntarily making the same and in this Act the expression '' statutory declaration " shall be deemed to include any declaration so taken and received, and such last-mentioned declaration shall for all purposes be deemed to be a statutory declaration within the meaning of that expression in the Etichnce Act 1915.

(u.) He shall upon the direction of the Commissioner correct errors in the register book or in entries made therein or in duplicate certificates or instruments, and may supply entries omitted to be made under the provisions of this Act; but in the correction of any 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 and initial the same; and every error or 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.

(in.) He shall upon the direction of the Commissioner lodge a caveat on behalf of His Majesty'"' or on behalf of any person who is under the disability of infancy coverture lunacy unsoundness of mind or absence from Victoria, to prohibit the transfer or dealing with any land belonging or supposed to belong to any such person, and also to prohibit the dealing with any land in any case in which it appears that an error has been made by misdescription of

(a) The duty of the Registrar when directed to lodge a caveat on behalf of the Crown appears to me not to be limited by any of the subsequent

words or to the cases mentioned subsequently. —Per Higinbotham, C.J., in Attorney-General v. Ooldsbrough, 15 V.L.R., at page 655.


such land or otherwise in any certificate of title or in any Transfer of instrument or for the prevention of any fraud or improper Lani Mt 1890,

dealing. (a>

334 . The Registrar may without the direction of the Commissioner Registrar may correct any patent error appearing on the face of any instrument errorsinapparent

lodged for registration without such instrument being withdrawn from ^ " X " ' 8

the office. Provided always that such correction be made in compliance direction of with sub-section (n.) of the last preceding section, and such correction ^ " ' " ^ j 0 " " ' shall have the same validity and effect as if made under the direction of the Commissioner under the said section.

235. The Registrar shall keep a correct account of all sums of Registrar to P,vy money which are received by him under the provisions of this Act,

receiver of and shall pay the same to one of the receivers of revenue at such ^XracTounts. times and shall render accounts of the same to such persons and in such a.,. 190. manner as is directed by any Act or regulations for the time being in force relating to the collection and payment of the public moneys and the audit of the public accounts. AH penalties and fees received under the provisions of this Act (except sums received as contributions to the assurance fund or in augmentation thereof) shall be carried to and form part of the consolidated revenue.

236. From the coming into operation of this Act it shall be lawful Fees to be pa-d for the Registrar to demand the fees specified in the Twenty-sixth Schedule ^n^stxth or such other fees as hereafter from time to time are appointed schedule. by the Governor in Council in lieu thereof or in addition thereto. **• *•197-

237. .Whenever any instrument caveat surrender discharge of Defective encumbrance writ of fi-fa. or other document lodged for registration document or in relation to any land title estate or interest or in connexion with amended'oli0'' any application or dealing is erroneous or defective, the Registrar may notice withm

J .-r-t' , . ° . ' , 9 ,, J twenty-one days require the correction and re-execution or correction only (as the case maybe rejected, requires) of such document to be made or procured by the person n.». 198. lodging the same ; and if after notice in writing of such error or defect sent through the post in a registered letter marked outside " Office of Titles" addressed to such person he fails to procure the same to be amended if it is an instrument or an application to bring land under this Act or to amend a certificate of title within a period of three months, or if it is any other document within a period of twenty-one days from the date of notice, the Registrar may if he thinks fit reject such document and notify such rejection to the person lodging the document, and thereupon half the fees paid on the lodging of the document shall be forfeited and dealt with as a penalty under section two hundred and thirty-five, and the other half may be returned to the person lodging the document on his withdrawing the same.

238. It shall be lawful for the Commissioner, whenever anyques- power to state a tion arises with regard to the performance of any duty or the Ss

ueIft°rS"pr8me

exercise of any of the functions by this Act conferred or imposed either ib.». 199. on him or on the Registrar, to state a case for the opinion of the

(a) Where the Registrar may lodge a caveat to his remedy under section 248.—In re a transfer under this sub-section, he is at liberty instead of from the British Bank to Evans, 21 A.L.T., 148 ; doing so to refuse to register a dealing with the 5 A.L.R., 292. land concerned, leaving the applicant if dissatisfied

VOL. V . — 2 U

4fJ58 TRANSFER OF LAND ACT 1915. [6 GEO. V.

Transfer qf Supreme Court; and thereupon it shall be lawful for the said court to Land Act 1890. ^yYQ ^.g ju(jgment;, thereon; and such judgment shall be binding upon

the Commissioner and Registrar respectively.

Assurance fund to be invested in Government securities. 16. a. 200.

Moneys paid out of assurance fund maybe recovered. lb. «. 201.

Assurance fund not liable in certain cases. lb. e. 202.

PART XIII.—ASSUKANCE FUND.

239 . All sums of money which are received by the Registrar as contributions to the assurance fund or in augmentation thereof shall be paid to the Treasurer of Victoria, who shall place such sums to the credit of an account to be kept in the Treasury to be called " the assurance fund," and shall from time to time invest the same together with all dividends and profits accruing thereon in Victorian Government securities, to constitute an assurance fund for the purposes hereinafter mentioned.

2 4 0 . Whenever any amount has been paid out of the assurance fund on account of any person who is dead, such amount may be recovered from the estate of such person by action against his personal representatives in the name of the Registrar; and whenever such amount has been paid on account of a person who has been adjudged insolvent, the amount so paid shall be considered to be a debt due from the estate of such insolvent, and a certificate signed by the Treasurer of Victoria certifying the fact of such payment out of the assurance fund and delivered to the official assignee shall be sufficient proof of such debt; and whenever any amount has been paid out of the assurance fund on account of any person who has absconded or who cannot be found within the jurisdiction of the Supreme Court and has left any real or personal estate within Victoria, it shall be lawful for the said court or a judge thereof, upon the application of the Registrar and upon the production of a certificate signed by the Treasurer of Victoria certifying that the amount has been paid in satisfaction of a judgment against the Registrar as nominal defendant, to allow the Registrar to sign judgment against such person forthwith for the amount so paid out of the assurance fund together with the costs of the application, and such judgment shall be final and signed in like maimer as a final judgment by confession or default in an adverse action, and execution may issue immediately; and if such person has not left real or personal estate within Victoria sufficient to satisfy the amount for which execution has been issued as aforesaid, it shall be lawful for the Registrar to recover such amount or the unrecovered balance thereof by action against such person at any time thereafter.

2 4 1 . The assurance fund shall not under any circumstances be liable for compensation for any loss damage or deprivation occasioned by the breach by a proprietor of any trust, whether express implied or constructive ; nor in any case in which the same land has been included in two or more grants from the Crown; nor shall the assurance fund be liable in any case in which such loss or deprivation has been occasioned by any land being included in the same certificate of title with other land through misdescription of boundaries or parcels of any land, unless in the case last aforesaid it is proved that the person liable for compensation and damages is dead or has absconded or has been adjudged insolvent or the sheriff certifies that such person is unable to pay the full amount awarded in any action for recovery of


such compensation and damages. Provided always that any amount Transfer <./ paid out of the assurance fund on account of any person who has Land Act 189n' absconded may be recovered from such person by action in the name of the Registrar at any time thereafter. Provided also that the said fund shall be liable for such amounts only as the sheriff fails to recover from the person liable as aforesaid.

2 4 2 . Upon granting an application made under this Act for Indemnity amendment of a certificate, or made under this Act for the exercise by cSund'eVtiis the Commissioner of any of the powers conferred on him by sections Act-one hundred and forty-four two hundred and four two hundred and n' * ' m

five two hundred and twenty-eight two hundred and twenty-nine two hundred and seventy-one and two hundred and seventy-two or for the waiver of any requisition made in connexion with a proposed dealing under this Act, the Commissioner may grant such application conditioned upon the applicant contributing to the assurance fund such a sum of money as the Commissioner certifies under his hand to be in his judgment a sufficient indemnity by reason of the non-production of any document affecting the title or of inability to obtain a consent serve a notice or comply with any other requisition made in the case or by reason of the imperfect nature of the evidence of title or as against any uncertain or doubtful claim or demand incident to or which may arise upon the title or any risk to which the assurance fund may be exposed by the granting of the application.

PART XIV.—ACTIONS AND OTHER REMEDIES.

2 4 3 . The Commissioner shall not, nor shall the Registrar or any officers not to be person acting under the authority of either of them, be liable to any Ameboid fide. action suit or proceeding for or in respect of any act or matter bond fide ib.«. 204. done or omitted to be done in the exercise or supposed exercise of the powers of this Act.

2 4 4 . No action of ejectment or other action for the recovery of Registered any land shall lie or be sustained against the person registered as teTed^nst" proprietor thereof under the provisions of this Act, except in any of the ei^Stln' f o l l o w i n g Cases ( t h a t i s tO S a y ) : certain eases.

0 V . . n ~ , , Tb.s. 205. (1.) The case of a mortgagee as against a mortgagor in default:

(11.) The case of an annuitant as against a grantor in default: (111.) The case of a lessor as against a lessee in default: (iv.) The case of a person deprived of any land by fraud as

against the person registered as proprietor of such land through fraud or as against a person deriving otherwise than as a transferee bond fide for value from or through a person so registered through fraud :(a>

(v.) The case of a person deprived of or claiming any land included in any grant or certificate of title of other land

(a) Where the owner of land has been deprived defendant to give up possession of the land, with of it by the defendant having brought it under this mesne profits for the time he had been in occupa-Act, and having obtained a certificate of title in tion; also to deliver up the duplicate certificate of his own name by means of false and fraudulent title, and to execute a transfer to the plaintiff, declarations, the court would not order the Regis- The defendant was not allowed the expense of trar to cancel such certificate, he not having been bringing the land under the Act.—Ogle v. Aedy, made a party to the action; but it ordered the 13 V.L.R., 461.

2 U z

4660 TRANSFER OF LAND ACT 1915. T6 GEO. V.

Transfer of Land Act 1S90.

by misdescription of such other land or of its boundaries as against the registered proprietor of such other land not being a transferee thereof bondf.de for value:

(vi.) The case of a registered proprietor claiming under a grant or certificate of title prior in date of registration under the provisions of this Act in any case in which two or more grants or two or more certificates of title or a grant and a certificate of title may be registered under the provisions of this Act in respect of the same land:

And in any case other than as aforesaid the production of the registered grant certificate of title or lease shall be held in every court of law or equity to be an absolute bar and estoppel to any such action against the person named in such document as the grantee proprietor or lessee of the land therein described, any rule of law or equity to the contrary notwithstanding.

245 . Upon the recovery of any land estate or interest by any proceeding at law or in equity from the person registered as proprietor thereof, it shall be lawful for the court or a judge, in any case in which such proceeding is not herein expressly barred, to direct the Registrar to cancel any certificate of title or instrument or any entry or memorial in the register book relating to such land estate or interest, and to substitute such certificate of title or entry as the circumstances of the case requires ; and the Registrar shall give effect to such order.(o>

Compensation of 246 . Any person deprived of land or of any estate or interest in onanddeprived land in consequence of fraud1*' or through the bringing of such land a. s. 207. under the operation of this Act or by the registration of any other

person as proprietor of such land estate or interest or in consequence of any error or misdescription1"' in any certificate of title or in any entry or memorial in the register book may bring and prosecute an action at law for the recovery of damages against the person upon whose

Powers of court to direct cancellation of certificate or entry in certain cases. lb. s. 200.

(a) Where a subsequent mortgage defeated a voluntary settlement, the court did not order the mortgagee to be registered as proprietor, but directed the trustee of the settlement to execute a mortgage.—Moss v. Williamson, 3 V.L.R. (E.), 221.

The way in which I have relieved from the inequitable effect of certificates is to order the holders of them to transfer.—Per Molesworth, J., in Ounn v. Harvey, 1 V.L.R. (E.), I l l ; and see Campbell v. Jarrett, 7 V.L.R. (E.), 137.—Ogle v. Aedy, 13 V.L.R., 461. But, quaere, whether in the above oases an order could not have been made under this section.

(6) A certificate of title to land under the Act, obtained by fraud, is voidable only, and not void, and may become indefeasible, either wholly or pro tanto, by matter ex post facto, e.g., where there has been a transfer to a purchaser or mortgagee for value, and without notice. In such case the person whose land or whose estate or interest in land has been fraudulently taken from him has his remedy for damages and costs out of the assurance fund, under this seotion, without prosecuting the perpetrator of the fraud, if the latter has escaped out of the jurisdiction before he could be apprehended.

—Messer v. Gibbs, 13 V.L.R., 854. See 1891 A.C., 248.

(c) On the issue of a,fi. fa., the execution creditor caused tho Registrar to be served with a copy of the writ specifying the land sought to be charged thereby, by mistake a description of the land of another person of the same name (also under the Act) being given. Suoh land was sold to the execution creditor, who lodged a transfer from the sheriff, and became the registered proprietor, and afterwards sold the land, bond fide and for value, to a third person, to whom the real proprietor, on his presenting his certificate of title, gave up possession without resistance. Held, that on the registration of this copy, writ, &c, and of the subsequent sheriff's transfer, the certificate of the owner was superseded, and that he was deprived of his land in consequence of error or misdescription in the application, and was entitled to maintain' an action under this section against the execution creditor, notwithstanding the subsequent sale by the latter.—Hassett v. The Colonial Bank of Australasia, 7 V.L.R. (L.), 380. But see per Webb, J., in Messer v. Gibbs, 13 V.L.R., at page 864. and S.C. in 1891 A.C., page 248.

Where land has been sold by metes and bounds

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application'"' such land was brought under the operation of this Act, or Transfer of such erroneous registration was made, or who acquired title to the Land Act 1890-

estate or interest through such fraud error or misdescription. Provided always that, except in the case of fraud or of error occasioned by any omission misrepresentation"'' or misdescription in the application of such person to bring such land under the operation of this Act or to be registered as proprietor of such land estate or interest or in any instrument signed by him, such person shall upon a transfer of such land bond fide for value cease to be liable for the payment of any damage which but for such transfer might have been recovered from him under the provisions herein contained; and in such last-mentioned case, and also in case the person against whom sttch action for damages is directed to be brought as aforesaid is dead or has been adjudged insolvent or cannot be found within the jurisdiction of the Supreme Court, then and in any such case such damages with costs of action may be recovered out of the assurance fund by action against the Registrar as nominal defendant. Provided also that in estimating such damages the value of all buildings and other improvements erected or made subsequently to the deprivation shall be excluded.

247 . Nothing in this Act contained shall be so interpreted as to Purchasers leave subject to an action of ejectment or to an action for recovery of j™4"^' damages as aforesaid or for deprivation of the estate or interest in respect to which he is registered as proprietor any purchaser'''' bona fide for valuable consideration of land under the operation of this Act, on the ground that the proprietor through or under whom he claims was registered as proprietor through fraud or error or has derived from or through a person registered as proprietor through fraud or error; and this whether such fraud or error consists in wrong description of the boundaries or of the parcels of any land or otherwise howsoever.(d'

2 4 8 . If upon the application of any owner or proprietor to have Proprietor may land brought under the operation of this Act or to have any dealing or S£rTo°showgls" transmission registered or recorded or to have any certificate of title ^"^ned registration abstract foreclosure order or other document issued or to n,,. 209. have any act or duty done or performed which by this Act is required to

at so much per acre, the acreage comprised with- (a) I t is immaterial that the person never in fact in such metes and bounds being correctly stated became registered proprietor.—Fotheringham v. in the contract, and the price stated accordingly, Archer, 5 W.W. & a'B. (L.), 95. and a conveyance has been executed accordingly, (6) Per Hiijinbotham, J.—" The word ' miure-the vendor is entitled to be paid for a substantial presentation' does not, I think, necessarily import excess in quantity not arising from error in the fraud."—Hassett v. The Colonial Bank of Austral-measurements given, and lying outside such boun- asia, 7 V.L.K.. (L.), at page 388. daries, though such excess has been occupied by (c) Where plaintiff never intended to purchase the vendor as part of the farm described for sale, a oertain few inches of frontage which by mistake and the purchaser had been let into possession of was included in his certificate: Held, that he was it. The purchaser having brought under the Act not a bond fide purchaser as to this.—PUosance v. such excess, along with the land conveyed, without Allen, 15 V.L.R., 601. notice to or knowledge of the vendor, and having (d) Per Cur.—" The object of this section was obtained the issue of a certificate in his own name: to proteot honest purchasers for value. If they Held, that the vendor was entitled to be paid by did so purchase, the certificate issued to them the purchaser the value of the excess land at the was good even against the proper owner. If the time of purchase, either under the usual condition owner was deprived of his land, he had a remedy of the contraot of sale as to compensation for against the person who committed the fraud, or excess or under this section.—Monaghan v. Oleeson, against the assurance fund."—Main v. Bobertson, 13 V.L.R., 384. 7 A.L.T., at page 128.


Trantler of Land Act 1890.

Expenses to be borne by Applicant.

be done or performed by the Registrar the Registrar refuses so to do, or if such owner or proprietor is dissatisfied with the direction upon his application given by the Commissioner, it shall be lawful for such owner or proprietor to require the Registrar to set forth in writing under his hand the grounds of his refusal or the grounds upon which such direction was given ;ta> and such owner or proprietor may if he thinks fit at his own cost summon the Registrar to appear before the Supreme Court to substantiate and uphold the grounds of his refusal or of such direction as aforesaid, such summons to be issued under the hand of a judge and to be served upon the Registrar six clear days at least before the day appointed for hearing the complaint of such owner or proprietor. Upon such hearing the Registrar or his counsel shall have the right of reply; and the said court may, if any question of fact is involved, direct an issue to be tried to decide such fact; and thereafter the said court shall make such order in the premises as the circumstances of the case require ; and the Registrar shall obey such order, and all expenses attendant upon any such proceedings shall be borne and paid by the applicant or other person preferring such complaint unless the court certifies that there was no probable ground for such refusal or direction as aforesaid.1*'

249 . Upon any summons or proceeding under the last preceding section, the court may, notwithstanding anything in the said section to the contrary, make such order as to the costs expenses of and attendant

Costs of summons and proceedings under last preceding section . - T •, T - • , i n j to be in the upon such summons or proceeding as it deems just; and all costs courtf10" ° ' t h e and expenses to be paid by the Registrar under such order shall be paid ib. s. 210. out of the assurance fund.

(a) Per Stawell, C.J.—"This section provides that if the Registrar refuse to register he may be compelled to assign reasons; that is, reasons in law as well as in fact."—Ex parte Bond, 6 V.L.R. (L.), at page 463 ; see also Ex parte Mutual Trust and Investment Co., 11 V.L.R., 166 ; and Ex parte Rowan, 9 V.L.R. (L.), 286.

An administratrix registered as proprietor of land died before having administered. Held, her administratrix was not entitled to be registered as proprietor. When the Commissioner refuses to register a person claiming as proprietor of land, he must, on request, give his reasons, and the court can entertain a summons calling on him to substantiate them.—In re O'Connor, 24 V.L.R., 896; and see note to section 232.

Where the Registrar improperly refuses to register a mortgage, the mortgagee has a remedy by mandamus to compel registration, notwithstanding that right is specifically given by this section to the owner or the proprietor of the land to summon the Registrar to substantiate the grounds of his refusal before the Supreme Court. —The Perpetual Executors and Trustees Association of Australia Limited v. Hosken, 14 C.L.R., 286.

(6) The decision of the court, upon a summons to the Registrar of Titles, to substantiate his refusal to give a dear certificate, has not the finality of a decision upon a litigation between all parties adversely interested.—Ex parte Folk, 6 V.L.R. (L.), 405.

The Registrar of Titles is not justified in refusing to bring land under the Aot, solely on the grounds

of an interpretation by the Commissioner of Titles, of a devise in a will, in opposition to a decision of the Supreme Court on the same devise ; and that, although his interpretation is supported by a decision of the Supreme Court of a neighbouring colony upon the same devise. His course, if an appeal depends, is to postpone the determination of the application until the question has been finally decided on appeal. But as he is the guardian of the assurance fund, the court would be slow to certify " that there was no probable ground for suoh refusal" so as to deprive him of his costs of a summons under this section.—Ex parte Bowman, 7 V.L.R. (L.), 314.

Where, on a summons to the Registrar to uphold the grounds of his refusal to register a transfer, the court is of opinion that there was probable ground for the refusal, the applicant must pay the costs.—Ex parte Leach, 5 A.J.R., 72.

A transferee of leasehold land applied to the Registrar to have the transfer registered. A caveat which had been lodged had lapsed. The Registrar refused to register the transfer on the ground that he had been made a co-defendant with the transferror of the land in an action brought by a third party in respect of the land. On an application by the transferee for mandamus to compel the Registrar to register the transfer : Held that the ground alleged was not sufficient.—Ex parte Clark, 17 V.L.R., 82.

Whatever may be the duty of the vendor to take the steps necessary to have a transfer registered, the transferee may, nevertheless, help himself if he


250. Any person sustaining loss'"' through any omission mistake Transfer of or misfeasance of the Registrar or any other officer or clerk in the f02u.4ct 189° execution of their respective duties under the provisions of this Act Or Actions for

by any error omission or misdescription in any certificate of title or dlmlges may in any entry or memorial in the register book or by the registration of any Sou^ht^ms't other person as proprietor, and who by the provisions of this Act is the Registrar as barred from bringing an action of ejectment or other action for the defendant, recovery of the land estate or interest, may, in any case in which the remedy by action for recovery of damages as herein provided is inapplicable, bring an action against the Registrar as nominal defendant for recovery of damages; in estimating which damages however the value of all buildings and other improvements erected or made subsequently to the loss or deprivation shall be excluded.

251. Any person sustaining any loss or damage by any rectifica-Persons tion of a certificate under this Act or by the bringing of land under this bySm™cnifracySin Act, if the rectification or the issue of the certificate by which such loss m

r°™™™r7

or damage was occasioned was in consequence of or justified by any damages against ° . i j • !.• £ l j -\ the assurance

inaccuracy in any survey or plan or description ot land used upon any fUnd. sale of land by the Crown, then notwithstanding the provisions of i>>- »• 212. section two hundred and forty-six and section two hundred and fifty, but without prejudice to the rights (if any) of such person thereunder, may in the first instance and without any obligation to pursue the remedies provided by such sections bring an action against the Registrar as nominal defendant for recovery of damages, and may recover the damages awarded together with the costs of the action out of the assurance fund.

252. Any person who has sustained or hereafter sustains any "taming loss loss or damage'*' in or by the exercise by the Commissioner of any of may recover the powers conferred on him by this Act or by the corresponding th^S9™^"8

provisions of any Act heretofore in force and who has not been party Înd'2.3

chooses and may enforce his rights by mandamus ferred upon him by section 79, and after adver-to compel the Registrar of Titles to register the tisement in a Melbourne newspaper, directed the transfer, this being the transferee's only direct Registrar of Titles (the defendant) to issue a remedy.—lb. special certificate of title to L. L. subsequently

(a) This section applies only to a loss by depri- transferred the land to one G., a purchaser in good vation of an actual interest in land, and not to a faith and for valuable consideration, who became loss of an expectancy of an interest sustained by the registered proprietor of the land. . L. after-the plaintiff, through a fraud which the apparent wards became insolvent in Western Australia, owner of land was enabled to commit, through the without having paid to the plaintiff any part of the neglect of the Registrar to endorse (under section said debt, which greatly exceeded the value of the 34), on the last material registered document lodged said land. on an application to bring the land under the Act, Held, that the plaintiff had sustained " loss " a memo, that the land had been brought under the within the meaning of this section, and was there-Act, whereby the plaintiff advanced money on fore entitled to recover damages and costs oat of mortgage of the land, as under the general law, the assurance fund. without notice that the land had been otherwise I t is unnecessary that the " loss or damage sus-transferred.—Oakden v. Gibbs, 8 V.L.R. (L.), 380. tained by any person," within the meaning of this

(6) L., the registered proprietor of certain land section, should be caused by a wrongful exorcise under the Transfer of Land Act, deposited with the by the Commissioner of Titles of any of the powers plaintiff in Western Australia a certificate of title conferred upon him by the Act, in order to enable to the land as the sole security for the payment of a such person to recover damages under this seotion. debt. Subsequently, L. made a statutory de- Quaere, whether " loss or damage " within the claration alleging that she had lost the said certi- meaning of this seotion means loss or damage ficate of title, and that there had been no dealings arising from an injury to or deprivation of an whatever by her with her interest in the said land, interest in land under the Act.—ToUey and Co. and the Commissioner, acting upon such declara- Limited v. Byrne, 28 V.L.R., 95. tion, and in accordance with the powers con-

4(564 TRANSFER OF LAND ACT 1915. [6 GEO. V.

compensation. lb. s. 214.

Transfer o) or privy to the application or dealing in connexion with which such land Act 1800. p 0 w e r w a s exercised, may notwithstanding the provisions of section

two hundred and forty-six and section two hundred and fifty and without prejudice to the r ights (if any) of such person thereunder in the first instance and without any obligation to pursue the remedies provided by such sections br ing an. action against the Registrar as nominal defendant for recovery of damages, and may recover the damages awarded together with the costs of the action out of the assurance fund. And where such person has been party or privy to such application or dealing he shall be a t liberty to join the Registrar as a nominal co-defendant in any action brought by him in respect of such loss or damage against any other person or persons who has or have been pa r ty or privy to such application or dealing, and all damages and costs recovered agains t the Registrar in such action whether by the plaintiff or a co-defendant may be recovered out of the assurance fund.

Person claiming 2 5 3 . Any person sustaining loss or damage in any case in Xn'br'oujrht which he is entitled to br ing an action to recover damages conlmiiionerin a g a i n s t the Registrar as nominal defendant may before commencing writing for proceedings against the Registrar make apiilication in writing: to the

Commissioner tor compensation, and such application shall be supported by affidavit or s ta tutory declaration. I f the Commissioner admits the claim or any pa r t thereof and certifies accordingly to t he Attorney-General, thereupon the Governor may if he th inks fit issue a warran t to the Treasurer for the amount so certified out of the assurance fund.

Notice of action 2 5 4 . In any case in which an action for recovery of damages is *° b e s e " ' e d - permit ted to be brought against the Regis t rar as nominal defendant,

notice in wri t ing of such action and of the cause thereof shall be served upon such nominal defendant one month a t least before the commencement of such action; and if in any such action judgmen t is given in favour of the nominal defendant or the plaintiff discontinues or becomes nonsuit, the plaintiff shall be liable to pay the full costs of defending such action and the same when taxed may be recovered in the name of the nominal defendant by the like process of execution as in other actions.

Payment oi 2 5 5 . I f in any such action t he plaintiff recover final judgment recove'eti. against such nominal defendant, then the judge before whom such action n. s. 216. is tr ied or the Supreme Court or a judge thereof shall certify the fact of

such judgment and the amount of damages and costs recovered ; and the amount of such damages and costs shall be paid to the person recovering the same, and shall be charged to the account of the assurance fund; and in case the balance to the credit of the assurance fund shall be inadequate to defray the amount specified, such sum as is necessary for t h a t purpose shall be paid out of the consolidated revenue; and the amount so advanced shall be repaid from the assurance fund as the same thereafter accrues.

Ib. s. 217.

Limitation of 2 5 6 . No action for recovery of damages sustained through aotions. deprivation of land or of any estate or interest in land shall lie or be

sustained against the Registrar or against the assurance fund or against the person upon whose application such land was brought under the operation of this Act or against the person who applied to be registered as proprietor in respect to such land, unless such action

No. 2740.] TRANSFER OF LAND ACT 1915. 46(55

is commenced within the period of six years from the date of Transfer of snch deprivation. Provided nevertheless that any person being under i o n d Act 1890' the disability of coverture (except in the case of a married woman entitled to bring such action) infancy unsoundness of mind or absence from Victoria may bring such action within six years from the date on which such disability lias ceased, so however that such action is brought within thirty years next after the date of such deprivation. The plaintiff in any such action at whatever time it is brought, and the plaintiff in any action for the recovery ot laud, shall have judgment entered against him in any case in which the deprivation complained of has been occasioned through the bringing of land under the operation of this Act, if it is made to appear to the satisfaction of the judge before whom such action is tried that such plaintiff or the persons Persons having through or under whom he claims title had notice by personal service cognizant or otherwise or was aware that application had been made to bring J J ^ 0 ^ t 0

such land under the operation of this Act, and had wilfully or collusively caveat barred, or negligently omitted to lodge a caveat forbidding the same or had allowed such caveat to lapse.

257. In the conduct of actions under this Act the same rules of Rules of procedure and practice shall apply, and there shall be the same rights of to^pT/and'1' appeal as are in force or exist for the time being in respect of ordinarv samerijfhtof actions in the court m which such action is tried. Provided that ordinary actions, the judges shall have power from time to time to make rules and orders n^makfruies for regulating proceedings in the Supreme Court under this Act, and &=• from time to time to rescind alter or add to such rules and orders. Jb- *•2ia

258. Nothing in this Act contained shall entitle any person to obligation to refuse to make a complete discovery or to answer any question or r?o?excKdry

interrogatory in any civil proceeding in any court of law or equity or a. s. 219. insolvency; but no such discovery or answer shall be admissible in evidence against such person in any criminal proceeding except a proceeding for perjury or for any offence against any Act relating to insolvency.

PART XV.—OFFENCES.

259. If any person wilfully makes any false statement or declara- certain tion<a) in any application to bring land under the operation of this t bedeeined1,8

Act or in any application under Part IV. of this Act or in a n y mMen>e»n0»™-application to be registered as proprietor whether in possession re- 's '220 ' mainder reversion or otherwise on a transmission or in any other application to be registered under this Act as proprietor of any land lease mortgage or charge, or suppresses or conceals or assists or joins in or is privy to the suppressing withholding or concealing from the Commissioner or Registrar any material document fact or matter of information, or wilfully makes any false statutory declaration required under the authority or made in pursuance of this Act, or if any person

(a) The prisonerwaa charged with wilfully making application, and the statutory declarations of a certain false statement in statutory declarations tho prisoner lodged in support of it produced by in relation to an application by him to bring land the proper officer from the Office of Titles, and under the Act, required under the authority and the certificate of title granted thereupon, and made in pursuance of this Act, and he was further the reasonable inference to be drawn therefrom, charged with having unlawfully and fraudulently together with evidence that the material state-procured from the Registrar of Titles a certain ments in such declarations were false. Held, that certificate of title. The only evidence in support the evidence was sufficient to support a convic-of such charges was that appearing upon the tion.—Beg. v. Aedy, 13 V.L.R., 746.

46G6 TRANSFER OF LAND ACT 1915. [6 GEO. V.

Transfer of in the course of his examination before the Commissioner wilfully and Land Act 1890. C 0 l . r U p t i v gives false evidence, or if any person fraudulently procures

assists in fraudulently procuring or is privy to the fraudulent procurement of any certificate of ti t le or instrument or of any entry in the register book or of any erasure or alteration in any entry in the register book, or knowingly misleads or deceives any person hereinbefore authorized to require explanation or information in respect to any land or the title to any land under the operation of this Act or in respect to which any dealing or transmission is proposed to be registered, such person shall be guilty of a misdemeanour; and shall be liable to a penalty of not more than Five hundred pounds or to imprisonment for a term of not more than three years with or without ha rd labour or to botli such penalty and such term of imprisonment ; and any certificate of t i t le entry erasure or alteration so procured or made by fraud shall be void as against all parties or privies to such fraud.*"'

Forgery to baa 2 6 0 . If any person is guilty of the following offences or any of » T i n them (that is to say):—

(i.) Forges or procures to be forged or assists in forging the seal of the Office of Titles or the name signature or handwriting of any officer in cases where such officer is by this Act expressly or impliedly authorized to affixhis signature:

(n.) Stamps or procures to be stamped or assists in stamping any document with any forged seal purporting to be of the Office of Titles:

(in.) Forges or procures to be forged or assists in forging the name signature or handwriting of any person whomsoever to any instrument which is by this Act or in pursuance of any power contained in this Act expressly or impliedly authorized to be signed by such person:

(iv.) Uses with an intention to defraud any person whomsoever any document upon which any impression or part of the impression of the seal of the office has been forged knowing the same to have been forged, or any document the signature to which has been forged knowing the same to have been forged:

such person shall be guilty of felony.

Punishment of 2 6 1 . Any person convicted of felony under this Act shall be liable /6°"y222 to- imprisonment with or without hard labour for a te rm of not more

than four years, and subject to the provisions of the Crimes Act 1915 to solitary confinement for any par t of the period aforesaid.

Conviction not 2 6 2 . No proceeding or conviction for any act hereby declared to remedy! °lvl1 be a misdemeanour or a felony shall affect any remedy which any ib s. 223. person aggrieved or injured by such act is entitled to a t law or in equity

against the person who has committed such act or against his estate.

jurisdiction. 2 6 3 . Unless in any case herein otherwise expressly provided n.«. 224. a i j offences against the provisions of this Act may be prosecuted, and

all penalties or sums of money imposed or declared to be due or owing by or under the provisions of the same may be sued for and recovered

(a) A misdescription in an application to bring ficate of title ; there must be fraud with a guilty land under the Act, as that the land was unoccu- intention.—Wiggins v. Hammill, 4 V.L.E. (L.), pied, will not under this section invalidate a certi- 63.


in the name of the Attorney-General before any court in Victoria Transfer of having jurisdiction for punishment of offences of the like nature or for Lani Act 1890,

the recovery of penalties or sums of money of the like amount.

PART XVI.—MISCELLANEOUS.

2 6 4 . A devisee or other person claiming any estate of freehold i n Devisee may possession or a power to appoint transfer or dispose of the same on a reli'sêdas transmission may make application in writing to the Commissioner to proprietor, be registered as proprietor thereof, and shall produce the will or anIb' *'225" office copy or probate of the will of the deceased proprietor or letters of administration with his will annexed or the settlement under which such applicant claims, and shall afterwards furnish such other evidence as is deemed necessary. Such application shall state the nature of every interest held by any other person at law or equity in the land within the applicant's knowledge, and that he verily believes himself to be entitled to the estate in or power over such land in respect to which he applies to be registered, and shall also state the value of the property. The devisee or other person making such application shall deliver up the duplicate grant or certificate of title prior to his being entered in the register book as the proprietor/")

2 6 5 . Such application shall be referred to an Examiner of Titles Application to for his examination and report, who shall afterwards submit the papers Examiner of to the Commissioner, who may either reject such application altogether ™es-or direct notice thereof to be published once at least in one newspaper NoUoetobe published in the city of Melbourne or circulating in the neighbourhood published of the land, and such further publicity to be given to such application as he deems fit; and the Commissioner shall appoint a time not less than fourteen days from the advertisement or the first of such advertisements if more than one upon or after which the Registrar may, unless a caveat is lodged forbidding such registration, register such applicant as the proprietor of such land or estate by entering in the register book the particulars of the transmission through which such applicant claims, and by registering a certificate of title to the land or estate so transmitted. Upon such entry being made the applicant shall become the transferee of such land or estate, and be deemed to be the proprietor thereof. Provided always that the person registered consequent on such direction shall hold such land or estate for the purposes for which it is applicable by law; but for the purpose of any dealings therewith under the provisions of this Act he shall be deemed to be the absolute proprietor thereof. The Commissioner may direct a caveat to be entered by the Registrar for the protection of the interests of any other persons interested in such land or estate.

2 6 6 . Any person entitled in remainder reversion or otherwise on a Remainde.--man transmission may apply to be registered as so entitled in like manner £L™appiy to'i-e and supported by the like evidence as near as may be as is herein registered as provided with respect to a devisee or other person claiming an estate /&. s. 227. of freehold in possession. Such application shall be dealt with in the Appiicatior to like manner as is mentioned in the last preceding section; and any

(a) The Office of Titles, upon an application to to require evidence that the testator's debts have register a transfer of land under the Act from a been paid.—Ex parte Wisewould, 16 V.L.R., 149, sole executrix to herself as devisee, is not entitled and see the note to Heading of Part XII .


Transfer of entry made thereupon sliall have the same eifect, and the person Land Act 1890. r e gj s t e r e d shall hold the land for the same purposes, and shall have the

same powers as is and are mentioned in such section. If there is any doubt dispute or litigation under this or under either of the two last preceding sections as to the true construction or legal validity or effect of any will or settlement relating to any freehold land or estate, or if the person entitled under any of tlie provisions of this Act to any land or estate under any will settlement or instrument cannot be ascertained, the Supreme Court sitting in the exercise of its equitable jurisdiction may appoint a person to be registered as the representative of such land or estate ; and such person when registered shall become the transferee and be deemed to be the proprietor thereof for the purposes of this Act, subject however to any directions which from time to time are given by the court sitting as aforesaid touching the disposition thereof or the dealing therewith.

Marriage of 2 6 7 . The Commissioner, upon production of sufficient proof of the proprietor. marriage of a female proprietor of any land or of any lease mortgage ib. i. 228. or charge not appearing by the register book to be held for her separate

use accompanied by an application in writing signed by such temale proprietor to register her husband as joint proprietor thereof in her right, shall direct the Registrar to enter in the register book and also upon the duplicate grant or certificate of title and duplicate instrument (if any) evidencing the title of such female proprietor when produced to him for that purpose the name and addition of her husband the date and place of the marriage and the time of making such entry; and the husband of such female proprietor shall on such entry being made in the register book become a joint transferee thereof and be deemed to be joint proprietor thereof in right of his wife. Until such entry is made she shall be deemed to be the sole and absolute proprietor of such land lease mortgage or charge, and may transfer or otherwise deal with the same at law and in equity.

Registration of 2 6 8 . Upon the death in the life-time of his wife of any husband p'ropnetore.'0'"' registered as joint proprietor with her of an estate in fee simple or of a ib. s. 229. lease mortgage or charge in her right, or upon the death of any female

proprietor whose husband is entitled as tenant by the curtesy to any freehold land or upon the death of any person registered with any other person as joint proprietor of any land or of any lease or charge or as joint proprietor of any mortgage owned on a joint account in equity,(a)

the Commissioner, on the application of the widow husband or person entitled and proof to his satisfaction of such events as aforesaid, may direct the Registrar to register such applicant as the proprietor thereof; and she or he shall, upon being registered in the manner herein

(a) By an instrument of mortgage a mortgagor tions. The Registrar of Titles having refused to mortgaged certain land under the Transfer of Land register the instrument: Act to two mortgagees. The instrument, after Held, that the mortgage was a mortgage to the setting out the usual covenants, contained a num- mortgagees as several owners, and not as joint ber of provisos. At the end of the first proviso, owners, that there was nothing in the Act pro-which related to the postponement of the time for hibiting the registration of such a mortgage, and, payment of the principal in the event of punctual therefore, that the Registrar should have regis-payment of interest and due performance of the tered it. covenants, was a clause stating that " it is hereby A mortgage to more mortgagees than one as agreed " that the principal sum " belongs to " several owners and in unequal shares may be regis-the two mortgagees in unequal specified propor- tered.—Drake v. Templeton, 16 C.L.R., 153.


prescribed for the registration of a like estate or interest, become the Transfer of transferee of such land lease mortgage or charge and be deemed the Lami Act 1 S 9 ° " proprietor thereof, but as regards any tenancy by the curtesy for the lifetime only of such husband.

269. Without lessening or prejudicing any of the other rights Proprietors and i T i i * i _ £ • ! • j . i transferees for

powers and remedies hereby given and conferred, every proprietor and the time bemB every transferee when registered of any land lease mortgage or charge P^c

teasn0lfinthB

shall whilst continuing so registered have the same estates rights previous owners, powers and remedies and be subject to the same engagements obli-76 s'230-gations and liabilities and may sue and be sued in his own name at law and in equity in respect thereof or thereupon, in like manner as if he had been the original proprietor of the land by or with whom the engagement obligation or liability sued upon was entered into or incurred, or the original lessee mortgagee or annuitant.(a)

270. The proprietor of any land or of any lease mortgage or charge Proprietor to shall, on the application of any beneficiary or person interested therein, tobe used by6

be bound to allow his name to be used by such beneficiary or person in jnt'gr°en9ted

any action suit or proceeding which it is necessary or proper to ib. s. 231. bring or institute in the name of such proprietor concerning such land lease, mortgage or charge or for the protection or benefit of the title vested in such proprietor or of the interest of any such beneficiary or person; but nevertheless such proprietor shall in any such case be entitled to be indemnified in like manner as if being a trustee he would before the passing of this Act have been entitled to be indemnified in a similar case of his name being used in any such action suit or proceeding by his cestui que trust.

271. Upon an application to bring land under this Act or to Abandonment of amend a certificate if it is proved to the satisfaction of the r hToTwlly Commissioner that any land constituting a private road street or way aXbth'irtyUmed

or a portion thereof respectively or subject to an easement of right of years' adverss way has been exclusively continuously and adversely occupied by the j ^ 8 ^ " ' applicant or by him and those through whom he claims for a period of not less than thirty years, the Commissioner may notwithstanding section seventy-three at his discretion issue a certificate for the fee simple of such land without notifying such road rights or easement of right of way as an encumbrance, and thereafter the same shall not be preserved by section seventy-two.

272. If upon an application to bring land under this Actor to where encroach-amend a certificate it is found that a building of a permanent nature êxisted"' has been erected prior to the passing of the Act No. 945 so as to encroach ^f"^^ upon the width or alignment of a public road street or way within the s-ven. limits of the city of Melbourne or city of Geelong, but it is proved to n- '•233-the satisfaction of the Commissioner that such encroachment has continued for a period of not less than fifteen years, the Commissioner may

(a) Per Fellows, J.—" This section must be taken Mortgage, <fcc, Bank v. Lord, 2 V.L.R. (L.), at to relate to covenants which run with the land ; it pages 32 and 33; but see In re Burton, ex parte does not say so far as the land is concerned, but Union Bank, 27 V.L.R., 437, at page 442; and there must be some limit. I t will carry on an old Fink v. Robertson, 4 C.L.R. 864, at page 880. liability, but not create new ones."—Australian


Tmmter o/ issue a certificate for or including the land covered by such building, Land Act 1890. p r o vided notice of such application and alleged encroachment has

been duly given to the corporation council board or other body in which such road street or way is vested or which has the trust or legal control thereof. In the event of such body sending in objections it shall be heard in support thereof, and the Commissioner shall have power to examine witnesses upon oath on behalf of the applicant and the corporation council board or other body and make such order as to him seems fit. Provided always that no encroachment so allowed by the Commissioner shall exceed three feet. Provided also that the Governor in Council may from time to time upon a petition in that behalf signed by two-thirds of the total number of members of the council of any shire borough town or city sealed with the common seal of the municipality affected, order that the operation of this section be extended to such shire borough town or city or any part thereof, and every order so made shall be published in the Government Gazette and shall take effect as from the day of such publication.

Kegistrartogive 273 . On any documents being lodged with the Registrar for any documents of the purposes of this Act the Registrar shall if required so to do give lodged. t 0 the person lodging the same an acknowledgment of the same having ib. s. 234. been lodged. Provided always that to obtain such acknowledgment

the person lodging such documents shall fill in duplicate lists of the same upon printed forms supplied by the Office of Titles, one of which signed by such person shall be retained by the office and the other with the seal of the Office of Titles attached and bearing the initials of the officer attaching the same shall constitute the acknowledgment so to be given. Provided also that documents so lodged shall be returned only to the person who lodged the same or to some person claiming through or under him or authorized in writing by the person entitled to receive the same.

Lis pendens not 2 7 4 . No lis pendens or registrat ion of lis pendens shal l affect or be witheiandeundl? deemed to have affected t he r i g h t of any person to obtain the regis t rat ion this Act. 0 f a n y d e a i i n g vmder this Act , or shal l deprive or be deemed to have

deprived any person deal ing under this Act of t he benefit of section one hundred and seventy-nine or of any other section.

Ib. s. 235.

Assignee of 2 7 5 . Upon the insolvency of the proprietor of any land lease mor t -entitied1 to be g^ge or charge, or upon any insolvent before obtaining his certificate of dis-lSoTwhioh'0 c m i r g e becoming proprietor of any land lease mor tgage or charge , his ass ig-insoivent is nee or t rus tee shal l be enti t led to be registered as proprietor in respect of afteôrdTrof01 the same; and the Regis t rar , upon the receipt of an office copy of t he J S T ^ T ' 0 " appoin tment of such assignee or t rus tee accompanied by an applicat ion

in wri t ing under his hand to be so registered in respect of any land lease mor tgage or charge of such insolvent therein described or of any estate or interest to which he was before t he sequestrat ion of his estate or after sequestration and before obtaining his certificate of discharge became enti t led or able to transfer or dispose of under any power of appo in tmen t or disposition which he m i g h t legal ly execute for his own benefit, sha l l enter in the register book upon t he folium const i tuted by the Errant or certificate of t i t le of such land or on t he lease mor tgage or charge a memorandum notifying the appoin tment of such assignee


or trustee; and upon such entry being made such assignee or trustee Transfer of shall become the transferee and be deemed to be the proprietor ofLand Act 1890-

such land lease mortgage or charge estate or interest, and shall hold the same subject to the equities upon and subject to which the insolvent held the same, but for the purpose of any dealing therewith under the provisions of this Act such assignee or trustee shall be deemed to be the absolute proprietor thereof.(a)

276. Until such application is made as aforesaid and subject to Until assignee the operation of any caveat which is lodged by such assignee dealings inliiten^y of by an insolvent proprietor with land under the operation of this Act ^êaiin"^0

may be registered, and thereupon shall not by the order of sequestration n.«. 237. be affected either at law or in equity.'6'

277. Subject to any express provisions to the contrary an estate Tenant in ta..l tail under this Act shall have the same incidents as a similar estate entltie to'deti under the general law and the proprietor of such an estate shall have " ' ' J^îf^ the same power to bar the estate tail and create an estate in fee simple tenant m tail absolute as against all persons whose estates are to take effect after the genlrauaw. determination or in defeasance of the estate tail as is possessed by the ib.s.2ss. owner of a corresponding esttxte tail in land not under the Act by virtue of Division I. of Part V. of the Real Property Act 1915 ; but no acknowledgment as therein provided shall be necessary for dealing with an estate tail under this Act.(c)

278. On any sale of land under the operation of this Act by public conditions of auction or private contract, the conditions set out in the table marked mth'sehedi'iT' A in the Twenty-fifth Schedule may be adopted by inserting the D

1Jfê

er^°e

pted

words "The conditions in table A of the Transfer of Land Act 1915 H. «. 239. shall apply to this contract," and when so adopted the said conditions ? r a ^f °/914

shall be construed as part of the contract subject to any express modi- s.e. fication or exclusion of any of them which may be contained in the Twenty-fifth contract.** Schedule-

(a) A sale by a trustee of an insolvent estate, or an amount for use and occupation.—Equity who has himself become insolvent, of the interest Trustees, Executors, and Agency Co. Ltd. v. Ayrey, of the original insolvent in land of which the 26 V.L.R., 625. trustee as such is registered proprietor to a Except so far as expressly provided by this sec-purchaser who has no notice of the insolvency of the tion, nothing in the Act can be considered as con-trustee is valid.—Corbett v. Sullivan, 19 A.L.T., ferring any beneficial interest upon an insolvent 177 ; 4 A.L.R., 38. or as affecting the insolvency law, which gives all

Where the assignee of an insolvent estate, having an insolvent's property to his assignee.—Graham lodged a caveat against any dealing with land v. Jones, 1905 V.L.R., 645. forming part of such estate, makes an application (c) See sections 62 and 63 of the Seal Properly to be registered as proprietor under this section Act 1915, which extend to all land whether during the existence of such caveat, the Registrar under the Real Property Act or under the is bound by virtue of section 276 to ignore all Transfer of Land Act.—Delves v. Wilson, 25 dealings by the insolvent proprietor with land V.L.R., 193. under the operation of the Act, and to register the (d) When land is sold as being under the Act assignee.—In re Palmateer, 16 V.L.R., 793. or under a contract incorporating the provisions

(6) Where the trustee in insolvency of a mort- of Table A. of this Act, the vendor may be required gagor, the registered proprietor under the Transfer to bring the land under the Act.—Matthews v. of Land Act, who is not in default under his mort- James, 8 V.L.R. (E.), 188; distinguished in gage, grants a lease of the mortgaged land, the Watson v. Watson, 12 V.L.R., 433; and followed mortgage operating as a re-demise, this section in Skinner v. The Australian and British Land Co., operates, to entitle the insolvent to recover in his 15 V.L.R., 674. own name either the rent payable under the lease


Transfer of Land Act 1890 s. 240. Forms may be modified.

Searches and certified copies. lb. 8. 241.

Power to make regulations for custody of Crown grants issued under former Acts. Croivn Grants Act 1006 s. 2.

Publication.

279. The forms contained in . the several schedules and the forms for the time being in force under this Act may be modified or altered in expression to suit the circumstances of every case; and auy variation from such forms respectively in any respect not being matter of substance shall not affect their validity or regularity.'"'

280. Any person may, on payment of the fee for the time being payable in that behalf, inspect the register book during the hours ana upon the days of business. The Registrar, on payment of the fee for the time being payable for a certified copy, shall furnish to any person applying for the same a certified copy of any grant certificate of title caveat or registered instrument affecting land under the operation of this Act ; and every such certified copy signed by him or by any Assistant Registrar and authenticated by the seal of the Office of Titles shall be received in evidence in any court of justice or before any person having by law or by consent of parties authority to receive evidence as primCi facie proof of the origmal grant certificate caveat or instrument and of all the matters contained or recited in or endorsed thereon respectively.

281. (1) The Governor in Council may make regulations for all or any of the following purposes so far as such regulations are not inconsistent with the provisions of this Ac t : —

(a) For prescribing the place or places for and the mode duration and responsibility of the custody of all or any undelivered Crown grants issued under the general law prior to the commencement of the Real Property Act Number 140 of 1862 on which the fees to the Crown chargeable on delivery have not been paid ; and

(b) For regulating the payment collection receipt of fees contributions to the Assurance Fund under Act No. 140 being the Real Property Act of 1862 or under Act No. 301 being the Transfer of Land Statute of 1866 and other charges (if any) chargeable in respect ot Crown grants issued before the date of the commencement of the said Real Property Act, or on unregistered Crown grants issued since that date but prior to the first day of March One thousand eight hundred and sixty-seven which have remained in the custody of the Crown unregistered by reason of the said charges not having been paid.

(2) All such regulations when made by the Governor in Council shall be published in the Government Gazette and when so published shall have the force of law and shall be judicially noticed and shall be laid before both Houses of Parliament within fourteen days after the same shall have been made if Parliament be then sitting and if not then within ten days after the next meeting of Parliament, and a copy of any proposed regulations shall be posted to each member of Parliament at least twenty-one days before such regulations are approved by the Governor in Council.

(a) See notes to sections 131 and 145.


SCHEDULES.

FIKST SCHEDULE. Section 2.

Number of Act. Title of Act. Extent of Repeal.

1149 ... Transfer of Land Act 1890 So much as is not already repealed.

1174 ... Real Property Act 1890 (No. 2) So much as is not otherwise r e -pealed.

The whole. 1875 Transfer of Land Act 1903

So much as is not otherwise r e -pealed.

The whole. 1931 Transfer of Land Act 1904 So much as is not

already repealed. 2046 Crown Grants A ct 1906 The whole. 2086 ... Heal Property Act 1907 Sections 6 and 7. 2094 ... Transfer of Land Act 1907 The whole. 2529 ... Transfer of Land Act 1914 The whole. 2552 ... Transfer of Land Act 1890 Amendment Act So much as is not

1914 (No. 2) otherwise r e -pealed.

SECOND SCHEDULE.

PART I. Section 18.

VICTORIA.

Application to bring Land under the operation of the Transfer of Land Act 1915. To the Registrar of Titles.

I [insert name and addition] hereby apply to have the land hereinafter described brought under the operation of the Transfer of Land Act 1915. And I declare—

1. That I am the owner of an estate in fee simple in possession [or of an estate of freehold in possession for my life or otherwise as the case may require] in ALL THAT piece of land being [insert if applicable part of] Crown allotment section [or otherwise according to the Grown grant] parish county [if the land be part only of that granted add which land contains (insert area) or thereabouts and is described in the document numbered in the Schedule hereto or otherwise after the word thereabouts set forth a sufficient description to identify the land],

2. That such land including all buildings and other improvements thereon is of the value of pounds and no more.

3. That there are no documents or evidences of title affecting such land in my possession or under my control other than those included in the Schedule hereto.

4. That I am not aware of any mortgage or encumbrance affecting the said land or that any other person hath any estate or interest therein at law or in equity in possession remainder reversion or expectancy [if there be any add other than as follows and set the same forth].

5. That the said land is occupied [if unoccupied prefix un to occupied, if occupied add by whom and state the name and addition of the occupant and the nature of his occupancy].

6. That the names and addresses so far as known to me of the occupants of all lands contiguous to the said land are as follows:—

7. That the names and addresses so far as known to me of the owners of all lands contiguous to the said land are as follows:—

[If the certificate of title is not to issue to the applicant add] And I direct the certificate of title to be issued in the name of [insert name and addition].

Dated this day of One thousand nine hundred and Made and subscribed at |

in the presence of f [Theapplicant if within Victoria to sign before the Registrar or an Assistant-Registrar

or a notary public justice of the peace commissioner of the Supreme Court for taking affidavits commissioner for taking declarations and affidavits or perpetual commissioner; if without the limits of Victoria, before a notary public or a commissioner for taking affidavits in the Supreme Conrt or in the manner provided by the " Evidence Act 1915 " for taking affidavits out of Victoria.]

SCHEDULE OF DOCUMENTS REFERRED TO.

VOL. V . — 2 X


SECONP SCHEDULE—continued.

Section 23. PART II .

NOTICE.

APPLICATION has been made to bring the land hereunder described under the TRANSFER OF LAND ACT 1915 on a title claimed by POSSESSION (insert, if applicable, " a s to part") .

The number of the application is

Date of lodging in Office of Titles Name address and occupation of applicant

Land applied for.

(Here insert description, the same as in advertisement:)

Dated this day of 19

(Signature of applicant or his agent.)

Sections 24, 47, 70, 213.

THIRD SCHEDULE.

Register Book. Vol. Fol.

VICTORIA.

Certificate of Title under the Transfer of Land Act 1915. [Insert name and addition] is now the proprietor of an estate in fee simple [if not in

fee simple state the nature of the estate and if the property be leasehold say of a leasehold estate for years from the day of One thousand

] subject to the encumbrances notified hereunder in ALL THAT piece of land delineated and coloured on the map in the margin containing [insert area] or thereabouts being [insert if applicable part of] Crown allotment section [or otherwise according to the Orotvn grant] parish county [If the grant was for any public purpose shortly mention it].

Dated the day of One thousand-nine hundred and

(Seal of Office.)

Registrar of Titles. ENCUMBRANCES REFERRED TO.

Section 29. FOURTH SCHEDULE.

VICTORIA.

Caveat forbidding Land to be brought under the Transfer of Land Act 1915.

To the Registrar of Titles. TAKE NOTICE that I [insert name and addition] claim [particularise the

estate or interest claimed] in the land described as [copy description from the advertisement] in the advertisement relating to the application of [state applicant's name and addition] and I forbid the bringing of such land under the operation of the Transfer of Land Act 1915. I appoint as the place at which notices and proceedings relating hereto may be served.

Dated this day of One thousand nine hundred and

Signed in the presence of


FIFTH SCHEDULE. Sections 69 & , 128.

Creation of Eight of Carriage-way in a Transfer of Freehold Land.

Together with full and free right and liberty to and for the transferee hereunder and to and for the registered proprietor or proprietors for the time being of the land hereby transferred or any part thereof and his her and their tenants servants agents workmen and visitors to go pass and repass at all times hereafter and for all purposes and either with or without horses or other animals carts or other carriages into and out of and from the said land or any part thereof through over and along the road or way or several roads or ways delineated and coloured brown on the said map.

Creation of Bight of Carriage-ioay in a Lease of Freehold Land.

Together with full and free right and liberty to and for the said lessee and his transferees proprietors for the time being of the land hereby leased or any part thereof and his her and their tenants servants agents workmen and visitors to go pass and repass at all times hereafter during the continuance of this lease and for all purposes and either with or without horses or other animals carts or other carriages into and out of and from the said land or any part thereof through over and along the road or way or several roads or ways delineated and coloured brown on the said map.

SIXTH SCHEDULE. Section 88.

VICTORIA.

Application for Vesting Order.

To the Commissioner of Titles— I [insert name address and occupation'] hereby apply for a vesting order vesting

in me all that piece of land being [describe land by reference to allotment and section giving volume and folium of existing certificate oj title or Crown grant] which land is delineated and coloured red upon the plan dated by A.B. a surveyor licensed under the Land Surveyors Act 1915 numbered in the Schedule hereto for an estate in fee simple in possession free from encumbrances (other than any special reservation exception or condition in the Crown grant) and I declare—

(1) Set forth particulars of the possession on which the claim is based— (<x) The date on and circumstance in which the possession commenced. (b) The name of the person by whom the possession was commenced. (c) The duration of his possession and the nature thereof; and (d) The subsequent history and nature of the possession up to the lime of

lodging the application. (2) That there are no documents or evidences of title affecting such land in my

possession or under my control other than those included in the Schedule hereto. (3) That there are no mortgages or encumbrances registered on the a-bove-

mentioned title save and except the following:—[Set out short particulars and state whether these mortgages or encumbrances have been extinguished or ceased to affect the land and, if so, how.]

(4) That save as aforesaid I am not aware of any mortgage or encumbrance affecting the said land oi that any person other than myself has any estate or interest therein [if there be any add] save and except [and set out same.]

(5) That the names and addresses so far as known to me of the occupants of all lands contiguous to the said land are as follow:—

(6) 'J hat the names and addresses so far as known to me of the owners of all lands contiguous to the said land aie as follow:—

(7) That the present value of the land including all improvements thereon is £ and no more.

Dated this day of One thousand nine hundred and

Made and signed in the presence of V

[The applicant, if within Victoria, must sign before the Registrar or an Assistant-Registrar or a notary public, a justice of the peace, commissioner of the Supreme Court of Victoria for taking affidavits, commissioner for taking declarations and affidavits, or perpetual commissioner; if without the limits of Victoria, before a notary public or a commissioner of the Supreme Court of Victoria for taking affidavits, or in the manner provided by the "Evidence Act 1915 "for taking affidavits out of Victoria.]

2 X 2


Section 121. SEVENTH SCHEDULE.

VICTORIA.

Transfer of Land.

I [insert name and addition] being registered as the proprietor of an estate in fee simple [if not in fee simple state the nature of the estate and if the property be leasehold say of a leasehold estate for years from the day of One thousand ] in the land hereinafter described [if the transfer be by a mortgagee or annuitant under his power of sale say being the proprietor of a mortgage (or charge as the case may be) from C D . registered the day of One thousand nine hundred and numbered upon the land hereinafter described] subject to the encumbrances notified hereunder in consideration of the sum of paid to me by E. F. [insert addition] Do HEREBY TRANSFER to the said E.F. all my estate and interest in [if the transfer be by a mortgagee or annuitant under his power of sale say all the estate and interest of the said C D . on the said day of One thousand nine hundred and or which he was then entitled or able to transfer or dispose of in] ALL THAT piece of land being [insert if applicable part of] Crown allotment section [or otherwise according to the Crown grant] parish , county [if the transferred land be part only of the land comprised in the grant or existing certificate set forth in links or feet the boundaries and refer to a map].

Dated the day of One thousand nine hundred and

Signed by the said in the presence of

Signed by the said E.F. in the presence of

ENCUMBRANCES REFERRED TO.

VICTORIA.

Transfer of a Lease Mortgage or Charge.

I [insert name and addition] being registered as the proprietor of a lease [or mortgage or charge as the case may be] numbered of (or upon) the land hereinafter described subject to the encumbrances notified hereunder in consideration of the sum of paid to me by C D . [insert addition] Do HEREBY TRANSFER to the said C D . all my estate and interest as such registered proprietor in ALL THAT piece of land being Crown allotment section [or otherwise according to the description in the lease mortgage or charge] parish county [or describe the land in general terms by reference to the registered instrument].


Signed by the said in the presence ot

Signed by the said C D . in the presence of


Transfer of Land or of a Lease Mortgage or Charge by Endorsement. I the within-named [insert name] in consideration of the sum of

paid to me by G.H. [insert addition] hereby transfer to the said G.H. the within-mentioned land [or lease or mortgage or charge as the case may be] subject however to the encumbrances notified or endorsed on the within grant [or certificate or in the register book].


Signed by the said "1 in the presence of J

Signed by the said G.H. in the 1 presence of J


EIGHTH SCHEDULE. Section 124.

I certify that the within-named B.B. came the day of One thousand nine hundred and before me at [state place] and acknowledged apart from any person that the within document (which I did not prepare and under which I am not interested) was understood by her and that she signed it without coercion.

NINTH SCHEDULE. Section 131.

VICTORIA.

Lease.

A.B. [insert addition] (hereinafter called the lessor) and who is registered as the proprietor of an estate [here state nature of the estate] in the land hereinafter described subject to the encumbrances notified hereunder HEREBY LEASES to C D . [insert addition] (hereinafter called the lessee) ALL THAT piece of land being [insert if applicable part of] Crown allotment section [or otherwise according to the Crown grant] parish county [if the land leased be part only of the land comprised in the grant or existing certificate set forth in links or feet the boundaries and refer to a map]

To BE HELD by the lessee for the term of years from the day of One thousand nine hundred and at the clear yearly rent of

payable [here insert terms of payment] subject to the covenants and powers implied under the Transfer of Land Act 1915 (unless hereby negatived or modified) and also to the covenants and conditions hereinafter contained [here set forth any special ones].

The following covenants by the lessee are to be construed according to section one hundred and thirty-four of the Transfer of Land Act 1915 :—

The lessee will not transfer or sublet. The lessee will fence. The lessee will cultivate. The lessee will not cut timber. The lessee will insure against fire in the name of the lessor. The lessee will paint outside every third year. The lessee will paint and paper inside every fourth year. The lessee will not use the premises as a shop. The lessee will not carry on any offensive trade. The lessee will carry on the business of a licensed victualler and conduct the

same in an orderly manner. The lessee will apply for a renewal of licence. The lessee will facilitate the transfer of licence.

Dated the day of One thousand nine hundred and Signed by the said lessor in the I

presence of f Signed by the said lessee in the I

presence of J


TENTH SCHEDULE. Section 134.

Column One. Column Two. 1. The lessee will not 1. The lessee his executors administrators or transferees will

transfer or sublet. not during the said term transfer assign or sublet the premises hereby leased or any part thereof or otherwise by any act or deed procure the said premises or any part thereof to be transferred or sublet without the consent in writing of the lessor or his transferees first had and obtained.

2. The lessee will fence. 2. The lessee his executors administrators or transferees will during the continuance of the said term erect and put up on the boundaries of the said land or on those boundaries upon which no substantial fence now exists a good and substantial fence.

D


Column One.

3. The lessee will cultivate.

4. The lessee will not cut timber.

TENTH SCHEDULE—continued.

Column Two.

3. The lessee his executors administrators or transferees will at all times during the said term cultivate use and manage in a proper and husbandlike manner all such parts of the land as are now or shall hereafter with the consent in writing of the said lesso.r or his transferees be broken up or converted into tillage and will not impoverish or waste the same.

4. The lessee his executors and administrators or transferees will not cut down fell injure or destroy any growing or living timber or timber-like trees standing and being upon the said land without the consent in writing of the said lessor or his transferees.

5. The lessee will insure against fire in the name of the lessor.

6. The lesseewill paint outside every third year.

5. The lessee his executors administrators or transferees will insure and during the said term keep insured against loss or damage by fire in the name of the lessor or his transferees in some public insurance office approved of by him or them to the amount of their full value all buildings which shall for the time being be erected on the said land and which shall be of a nature or kind capable of being insured against damage by fire and will when required deposit with the lessor or his transferees the policy of such insurance and within seven days after each premium shall become payable the receipt for such premium and on any breach or non-oT)servance of this covenant the lessor or his transferees may without prejudice to and concurrently with the powers granted to him and them by this lease and by the Transfer offhand Act 1915 insure such buildings and the costs of effecting such insurance shall during the said term be a charge upon the said land. All moneys which shall be received under or by virtue of any such insurance shall be laid out and expended in making good the loss or damage.

6. The lessee his executors administrators or transferees will in every third year during the continuance of the said term paint all the outside woodwork and ironwork belonging to the leased property with two coats of proper oil colours in a workmanlike manner.

7. Thelesseewillpaint and paper inside every fourth year.

8. The lessee will not use the premises as a shop.

9. The lessee will not carry on any offensive trade.

7. The lessee his executors administrators or transferees will in every fourth year during the continuance of the said term paint the inside wood iron and other work now or usually painted with two coats of proper oil colours in a workmanlike manner and also re-paper with paper of the same quality as at present such parts of the said premises as are now papered and also whiten or colour such parts of the said premises as are now whitened or coloured respectively.

8. The lessee his executors administrators or transferees will not convert use or occupy the said premises or any part thereof into or as a shop warehouse or other place for carrying on any trade or business whatsoever or permit or suffer the said premises or any part thereof to be used for any such purpose or otherwise than as a private dwelling-house without the consent in writing of the said lessor or his transferees.

9. The lessee his executors administrators or transferees will not at any time during the said term use exercise or carry on or permit or suffer to be used exercised or carried on in or upon the said premises or any part thereof any noxious noisome or offensive art trade business occupation or calling and no act matter or thing whatsoever shall at any time during the said term be done in or upon the said premises or any part thereof which shall or may be or grow to the annoyance nuisance grievance damage or disturbance of the occupiers or owners of the adjoining lands and properties.


Column One. 10. The lessee will

carry on the business of licensed victualler and conduct the same in an •orderly manner.

11. The lessee will apply for renewal of licence.

12. The lessee will facilitate the transfer of licence.

TENTH SCHEDULE—continued.

Column Two. 10. The lessee his executors administrators or transferees

will at all times during the continuance of the said term use exercise and carry on in and upon the premises the trade or business of a licensed victualler or publican and seller of fermented and spirituous liquors and keep open and use the house inn and buildings standing and being upon the land as and for an inn or public-house for the reception accommodation and entertainment of travellers guests and other persons resorting thereto or frequenting the same and manage or conduct such trade or business in a quiet and orderly manner and will not do or commit or suffer to be done or committed any act matter or thing whatsoever whereby or by means whereof any licence shall be allowed to expire or to become void or shall or may be liable to be forfeited suspended taken away or refused.

11. The lessee his executors administrators or transferees will from time to time during the continuance of the said term at the proper times for that purpose apply for and endeavour to obtain such licenoe or licences as is or are or may be necessary for carrying on the said trade or business of a licensed victualler or publican in and upon the said premises and keeping the said house or inn open as and for an inn or public-house as aforesaid.

12. The lessee his executors administrators or transferees will at the expiration or other sooner determination of the said term sign and give such notice or notices and allow such notice or notices of a transfer or renewal of any licence as may be lequired by law to be affixed to the said house or inn to be thereto affixed and remain so affixed during such time or times as shall be necessary or expedient in that behalf and generally will do and perform all such acts matters and things as shall be necessary to enable the said lessor or his transferees or any person authorized by him or them to obtain the transfer of any licence then existing and in force or the renewal of any licence or any new licence.

ELEVENTH SCHEDULE.

VICTORIA.

Section 139.

Sub-lease. A.B. [insert addition] (hereinafter called the sub-lessor) and who is registered as

the proprietor of a lease numbered of the land hereinafter described, subject to the encumbrances notified hereunder, hereby sub-leases to CD. [insert addition] (hereinafter called the sub-lessee) all that piece of land being [if the sub-lease is of all the land in the lease, copy here the description of the land given in the lease ; but if only a part, set forth the boundaries by measurements in links or feet and by abuttals, making the description coincide, so far as practicable, with that in the lease, and refer to

• a map] being [insert, if applicable, part of] the land comprised in the said lease, to be held by the sub-lessee for the term of [insert term of sub-lease], at the clear yearly rent of payable [insert terms of payment], subject to the covenants and powers implied under the Transfer of Land Act 1915 (unless hereby negatived or

' modified), and also to the covenants and conditions hereinafter contained [here set forth any special covenants and conditions].

The following covenants by the sub-lessee are to be construed according to section one hundred and thirty four of the Transfer of Land Act 1915 :—[Insert here such of the covenants given in the Tenth Schedule to this Act as may be agreed upon, substituting "sublessee" for "lessee" and " sub-lessor" for "lessor," and using the short forms given in column one of that schedule].

Dated the day of One thousand nine hundred and Signed by the said sub-lessor \

in the presence of J Signed by the said sub-lessee 1

in the presence of / . ENCUMBRANCES REFERRED TO.


Section 145. TWELFTH SCHEDULE.

VICTORIA.

Mortgage.

I A.B. [insert addition] being registered as the proprietor of an estate [here state nature of the estate] in the land hereinafter described subject to the encumbrances notified hereunder in consideration of the sum of this day lent to me by CD. [insert addition] (hereinafter called the mortgagee) do hereby covenant with the said mortgagee

FIRSTLY to pay to the said mortgagee or his transferee the principal sum of pounds on the day of

SECONDLY to pay to the said mortgagee or his transferee so long as the said principal sum or any part thereof shall remain unpaid interest on the said sum or on so much thereof as shall for the time being remain unpaid at the rate of per centum per annum by equal payments on the day of and on the day of in every year.

THIRDLY that I will insure against fire in the name of the mortgagee. FOURTHLY [here .set forth any special covenants].

AND for better securing the payment in manner aforesaid of the said principal sum and interest I HEREBY MORTGAGE to the said mortgagee all my estate and interest and all the estate and interest which I am entitled or able to transfer or dispose of in ALL THAT piece of land being [insert if applicable part of] Crown allotment section [or otherwise according to the Crown grant] parish of county [if the land mortgaged be part only of the land comprised in the grant or existing certificate set forth in links or feet the boundaries and refer to a map].

Dated day of One thousand nine hundred and Signed by the said A.B. in t h e \

presence of J Signed by the said C D . in t h e \

presence of /


Section 145. THIRTEENTH SCHEDULE.

VICTORIA.

Charge. I A.B. [insert addition] being registered as the proprietor of an estate [here state

nature of the estate] in ALL THAT piece of land being [insert if applicable part of] Crown allotment section [or otherwise according to the Croivn grant] parish county [if the land charged be part only of the land comprised in the grant or existing certificate set forth in links or feet the boundaries and refer to a map] subject to the encumbrances notified hereunder and desiring to render the said land available for the purpose of securing to and for the benefit of C D . [insert addition] the annuity hereinafter mentioned Do HEREBY CHARGE the said land for the benefit of the said C D . with an annuity of to be paid at the times and in the manner following that is to say [here state the times appointed for the payment of the annuity and the events on which it shall cease to be payable also any special covenants or powers and any modification of the powers or remedies given to an annuitant by the Act].

And subject as aforesaid the said C D . shall be entitled to all powers and remedies given to an annuitant by the Transfer of Land Act 1915.

Dated the day of One thousand nine hundred and Signed by the said A.B. in t h e \

presence of / Signed by the said C D . in t h e \

presence of /



Column One. That I will insure

against fire in the name of the mortgagee.

FOURTEENTH SCHEDULE.

Column Two. That I my heirs executors administrators or transferees

will insure and so long as any money shall remain secured by this mortgage keep insured against loss or damage by fire in the name of the mortgagee or his transferees in some public insurance office to be approved of by him or them all buildings which shall for the time being be erected on the said land, and which shall be of a nature or kind capable of being so insured to the amount either of the principal money hereby secured or of the full value of such buildings and will when required deposit with the mortgagee or his transferees the policy of such insurance and within seven days after each premium shall become payable the receipt for such premium. And that the moneys which shall be received on account of such insurance shall at his or their option be applied either in or towards satisfaction of the moneys secured by this mortgage or in rebuilding or reinstating under the superintendence of his or their surveyor the buildings destroyed or damaged. And that on any breach or non-observance of this covenant he or they shall be a t liberty to effect such insurance and continue the same for such period as may be deemed fit and the costs and expenses paid on account thereof shall be a charge upon the said land and bear interest at the same rate as if principal money overdue.

Section 155.

FIFTEENTH SCHEDULE. Section 178.

VICTORIA.

Form of Transfer of Land under Writ of Fieri Facias.

I [insert name] as the Sheriff of [or as the person appointed to execute the writ hereinafter mentioned or otherwise as the case may be] in pursuance of a writ of fieri facias tested the day of One thousand nine hundred and and issued out of the Supreme Court in an action wherein is the plaintiff and the defendant which said is registered as the proprietor of an estate [here stale nature of the estate] in the land hereinafter described subject to the encumbrances notified hereunder and to effectuate the sale made under such writ do hereby in consideration of the sum of paid to me by E.F. [insert addition] transfer to the said E.F. all the estate and interest of the said in All that piece of land being [insert if applicable part of] Crown allotment section [or otherwise according to the Crown (/rant] parish county [if the land transferred be part only of the land comprised in the grant or existing certificate set forth in links or feet the boundaries and refer to a map].

Dated the day of One thousand nine hundred and Signed by the said in the )

presence of I Signed by the said E.F. in the I

presence of


VICTORIA.

Form of Transfer of Lease Mortgage or Charge under Writ of Fieri Facias. I [insert name] as the Sheriff of [or as the person

appointed to execute the writ hereinafter mentioned or otherwise at the case may be] in pursuance of a writ of fieri facias tested the day of One thousand nine hundred and and issued out of the Supreme Court in an action wherein is the plaintiff and the defendant which said is registered as the proprietor of a lease [or


FIFTEENTH SCHEDULE—continued.

mortgage or charge as the case may be] numbered of [or upon] the land hereinafter described subject to the encumbrances notified hereunder and to effectuate the sale made under such writ do hereby in consideration of the sum of paid to me by E.F. [insert addition] transfer to the said E.F. all the estate and interest of the said as such registered proprietor in All that piece of land being Crown allotment section [or otherwise according to the description in the lease mortgage or charge] parish county [or describe the land in general terms by reference to the registered instrument].


Signed by the said in I the presence of |

Signed by the said E. F. in the ( presence of )


VICTORIA.

Form of Transfer of Land under Decree Judgment or Order of Supreme Court [or of the County Court as the case may be].

I [insert name] in pursuance of a decree judgment or order of the Supreme Court [or of the County Couit as- the case may be] dated the day of One thousand nine hundred and and entered in the register book vol.

fol. hereby transfer to E.F. [insert addition] subject to the encumbrances notified hereunder all the estate and interest of (who is registered as the proprietor of an estate [here statenatureof the estate]m the land hereinafter described) in All that piece of land being [insert if applicable part of] Crown allotment section [or otherwise according to the Crown grant] parish county [if the land transferred be part only of the land comprised in the grant or existing certificate set forth in links or feet the boundaries and refer to a map].


Signed by the said in I the presence of f

Signed by the said E.F. in the | presence of J


VICTORIA.

Form of Transfer of Lease Mortgage or Charge under Decree Judgment or Order of Supreme Court [or of the County Court as the case may be].

I [insert name] in pursuance of a decree judgment or order of the Supreme Court [or of the County Court as the case may be] dated the day of One thousand nine hundred and and entered in the register book vol. fol. hereby transfer to E. F. [insert addition] subject to the encumbrances notified hereunder all the estate and interest of (who is registered as the proprietor of a lease [or mortgage or charge as the case may be] numbered of [or upon] the land hereinafter described) in All that piece of land being Crown allotment section [or otherwise according to the description in the lease mortgage or charge] parish county [or describe the land in general terms by reference to the registered instrument].


Signed by the said i n \ the presence of /

Signed by the said E.F. in the I presence of j


No.. 2740.] TRANSFER OF LAND ACT 1915. 4683

SIXTEENTH SCHEDULE. Section 183. VICTORIA.

Caveat forbidding Registratibn of any Change in Proprietorship or any dealing with Estate or Interest.

To the Registrar of Titles. Take notice that I [insert name and addition} claim [specify the estate or interest

claimed'] in [describe land] standing in the register book in the name of' And I forbid the registration of any person as transferee or proprietor of and of any instrument affecting the said estate or interest absolutely [or until after notice of any intended registration or registered dealing be given to me at the address hereinafter mentioned or unless such instrument be expressed to be subject to my claim or unless I consent in writing thereto as the case may require] I appoint as the place at which notices and proceedings relating to this caveat may be served.

Dated this day of One thousand nine hundred and Signed in the presence of

SEVENTEENTH SCHEDULE. Section 189. Form of Power of Attorney.

I A.B. [insert addition] do hereby appoint C D . [insert addition] my attorney to sell to any person all or any lands leases mortgages or charges whether now belonging to me or which shall hereafter belong to me under or by virtue of the Transfer of Land Act 1915 or of which I am now or shall hereafter be the proprietor or owner under the said Act ALSO to mortgage all or any such lands or leases for any sum at any rate of interest ALSO to charge the same with any annuity of any amount ALSO to lease all or any such lands as shall be of freehold tenure for any term of years not exceeding twenty-one years in possession at any rent ALSO to surrender or obtain or accept the surrender of any lease in which I am or may -be interested ALSO to exercise and execute all powers which now are or shall hereafter be vested in or conferred on me as a lessor mortgagee or annuitant under the said Act [or otherwise according to the nature and extent of the powers intended to be conferred] - AND for me and in my name to sign all such transfers and other instruments and do all such acts matters and things as may be necessary or expedient for carrying out the powers hereby given and for recovering all sums of money that are now or may become due or owing to me in respect of the premises and for enforcing or varying any contracts covenants or conditions binding upon any lessee tenant or occupier of the said lands or upon any other person in respect of the same and for recovering and maintaining possession of the said lands and for protecting the same from waste damage or trespass.

Dated this day of One thousand nine hundred and Signed by the said A.B. in)

the presence of

EIGHTEENTH SCHEDULE. Section ISI. Certificate of Registrar <bc. taking Declaration of attesting Witness.

Appeared before me at the day of One thousand nine hundred and C D . the attesting witness to this instrument and declared that he personally knew A.B. the person signing the same and whose signature the said CD. attested and that the name purporting to be the signature of the said A. B. is his own handwriting and that he was of sound mind and freely and voluntarily signed such instrument.

E.F. [set out qualification.]

NINETEENTH SCHEDULE. Section 192. VICTORIA.

Registration Abstract. [Copy grant or certificate of title.]

This registration abstract is issued under the provisions of the Transfer of Land Act 1915 for the purpose of enabling the proprietor above named to transfer or otherwise deal with the above-described land at any place without the limits of Victoria and will continue in force from the date hereof until the day of One thousand nioe hundred and or until the same is surrendered to me for cancellation or the loss destruction or obliteration hereof proved to the satisfaction of the Commissioner of Titles.

Dated this day of One thousand nine hundred and Registrar of Titles. (Seal of Office.)


Section 196. TWENTIETH SCHEDULE.

VICTORIA OFFICE OF TITLES.

Application for Search Certificate. I hereby request to be informed whether there is any and if any what obstacle to a

dealing by—[A.B. (five name of proprietor and Volume and Foho of certificate']—with the land comprised in certificate Vol. Fol.

Sir/nature of applicant—

Search Certificate No. The last registered dealing or encumbrance affecting the title of the proprietor to

the land comprised in the above certificate of title is noted upon the certificate as follows: — [Refer to the last entry upon the certificate in such a way as distinctly to identify, or if the title be clear state that there is no dealing or encumbrance mentioned upon the certificate].

At the time of issuing this ceitifieate there is nothing to prevent the registration of a dealing by the registered proprietor except—[If the title be clear and there is nothing to prevent dealing, strike out the word " except"].

[If there be any caveat dealing lodged for registration, application by official assignee notice of fi. fa. or other obstacle to dealing not noted on the certificate of title, rejer to such obstacle in such a way as to give the applicant notice, of it and to enable him to ascertain particulars by inspection. ]

The information above given refers only to the present state of the register and the present right to register a dealing with the interest of the proprietor appearing on the register.

The seal of the Office of Titles was affixed to this search certificate at the hour of o'clock on the day of 19

TWENTY-FIRST SCHEDULE.

VICTORIA OFFICE OF TITLES.

Application for Stay of Registration as to Title of A.B. to Land comprised in Certificate Vol. Fol. as to which Search Certificate No. , has been applied for.

I, C D . , of now dealing bona fide for value with the above-named A.B. as to land comprised in the above certificate, in order to protect such dealing, hereby apply for a stay of registration of any instrument affecting the land proposed to be dealt with for forty-eight hours from the time named in the search certificate. The particulars of the proposed dealing are as follows:—

The transaction is—[State whether sale mortgage exchange lease or other dealing for value].

The consideration is—[State the price to be paid or amount to be lent, rent to be paid, or other consideration].

The land to be comprised in the dealing is all the land comprised in the above certificate—[If not all, strike out the words following " is " and describe the land in such a manner as distinctly to identify if].

Signature of the applicant or his solicitor—

I consent to the above application for stay of registration, and certify that the proposed dealing is as above stated.

Signature oj proprietor or of his authorized agent—

Order for Stay oj Registration.

I hereby direct that for forty-eight hours from o'clock on the day of 19 nothing is to be entered on the register as to the land above described except an instrument giving effect to the above dealing, which if lodged for registration within that time is to have priority over all other instruments which may be lodged for registration during such forty-eight hours.

Registrar of Titles.


TWENTY-SECOND SCHEDULE. Section 208.

This map correctly embodies the scheme of subdivision of the land therein comprised prepared, approved, and adopted by the Commissioner of Titles under the provisions of the Transfer of Land Act 1915.

Verified this day of 19 (Signature)

Commissioner of Titles. (Signature)

Chief Draftsman in the Office of Titles (or Acting Chief Draftsman, as case may be).

TWENTY-THIRD SCHEDULE. Section 217.

VICTORIA.

Application to Amend Certificate. To the Registrar of Titles.

1. I, , hereby apply to have the certificate of title Vol . Fol. amended in the following particulars:—[State the nature of proposed amendment, and, in a case in which the description in the certificate is erroneous or imperfect on the face of it, add the toords on the ground that the certificate is erroneous or imperfect on the face of it].

2. That the land which would be described by the certificate when amended in accordance with this application is now in my occupation, and has been actually and bond fide occupied by me or persons holding under me since—

3. That the nature of such occupation was as follows :—[State generally how and by whom the land has been occupied, as, for instance, by myself as a farm and dwelling; by my tenants, A.B. and C D . , as shops; or partly by me as a dwelling, and partly by my tenant, A. B., as a shop].

4. That the names and addresses so far as known to me of the occupants of all lands contiguous to the land so occupied by me are as follows :—

5. That the names and addresses so far as known to me of the owners of all lands contiguous to the land so occupied by me are as follows:—

6. That to the best of my knowledge and belief the reasons why the description of the land in the said certificate does not accord with the description of the land so occupied by me are the following:—[Set out reasons'].

Dated the day of 19 Made and subscribed at in the presence of

Application to Rectify Register. To the Registrar of Titles.

1. I, , the registered proprietor of the land which is described as follows in the certificate of title Vol. Eol. —[set out full particulars as in certificate] — hereby apply to have the register of titles rectified in the following particulars:—[State the nature of the proposed rectification, and mention the Volume and Folio of every certificate and the name of every registered proprietor whose certificate of title would be affected by the proposed rectification]. <•

2. That to the best of my knowledge and belief the discrepancy between the description in my certificate of title and that m the other certificates above mentioned is due to error in survey or misdescription, and has arisen—[Give the supposed cause of discrepancy, or state that the applicant is unable to assign any specific cause for the discrepancy],

3. That the title to the land affected by the proposed rectification has never been in contest between me or as I believe any one from whom I claim and any other pei son in any proceeding under the Transfer of Land Statute or the Transfer of Land Act 1890 or the Transfer of Land Act 1915 or in any court of law or equity.

4. That the land as described in my certificate has been actually and bona fide occupied by me and persons holding under me since—

5. That the nature of such occupation was as follows:—[Stale generally hoio and by whom the land has been occupied, as, for instance, by myself as a farm and dwelling; by my tenants, A.B. and C D . , as shops; or partly by me as a dwelling, and partly by my tenant, A.B., as a shop].

Dated the "' day of 19 . Made and subscribed at in the presence ot


Section 226 TWENTY-FOURTH SCHEDULE.

Summons. In Che matter of the Transfer of Land Act 1915.

A.B. [insert addition] is hereby summoned to appear before me at the office of Titles [Queen-street, Melbourne] on the day of One thousand nine hundred and at of the clock in the [fore] noon then and there to be examined at the instance of C D . [ insert addition] concerning

and the said A.B. is hereby required to bring with him and produce at the time and place aforesaid [describe documents] and all other writings and documents in his custody or power in anywise relating to the premises.

Given under my hand the day of One thousand nine hundred and

Commissioner of Titles.

Section 278. TWENTY-FIFTH SCHEDULE.

TABLE A.

General Conditions of Sale. ' 1. The purchaser shall complete his purchase upon the day that the last of the

acceptances or notes for purchase money become due; but he shall be entitled to the possession of the lot or lots purchased by him, or to the receipt of the rents and profits thereof, upon his acceptance of the title to such 'lot or lots ; and if, from any cause whatsoever, his purchase shall not be completed at the time above specified, the purchaser shall pay interest on such of his acceptances or notes as shall become overdue at the rate of Eight pounds per cent, per annum to the time of completion, without prejudice however to the vendor's right under the sixth condition.

2. All roads or ways adjoining or leading to or from the land sold or shown on the existing certificate of title to the property the areas of which roads are not included in such certificate shall be deemed by the purchaser either to be appurtenant to such land or to have become public roads.

3. The certificate of title.to the property sold shall be produced, and a copy thereof may be made by the purchaser or his solicitor on application in that behalf to the vendor oi his solicitor^ and the purchaser shall within fourteen days after the day of sale deliver to the vendor or his solicitor a statement in writing of all objections or requisitions (if any) to or on the title, or concerning any matter appearing on the particulars or conditions, and in this respect time shall be of the essence of the contract. All objections or requisitions not included in such statements to be delivered within the time aforesaid shall be deemed absolutely waived by the purchaser, and in default of such objections (if none) and subject only to such (if any) so delivered, the purchaser shall be considered as having accepted the title, and it shall be lawful for the auctioneer to pay over and deliver to the said vendor all sums of money paid and acceptances or notes given by the said purchaser on account of the purchase money without being liable to any action or other proceeding for recovery of the same.(«)

i. In case the purchaser shall within the time aforesaid make any objection to or requisition on the title or otherwise which the vendor shall be unable or unwilling to remove or comply with, and such objection or requisition shall be insisted on, it shall be lawful for the vendor or his solicitor (whether be shall have attempted to remove such objection or to comply with such requisition or not, and notwithstanding any negotiation or litigation in respect of the same) at any time, by notice in writing, to annul the sale, and within one week after giving such notice to repay to the purchaser the amount of his purchase money or so much thereof as shall have been paid in full satisfaction of all claims and demands whatsoever by the purchaser and also to return all unpaid acceptances given by the purchaser, but without any interest costs or damages of any description.

(a) Where, in a contract for the sale of land under the Transfer of Land Act, reference is made to certificates of title for the said land, and the conditions of Schedule 25 of the Act are made applicable to the contract, the vendor makes full compliance with the terms of the contract by producing the certificates of title referred to, although they are not in his own name.

Whero a vendor sells land under the Transfer' of Land Act, he is entitled to a reasonable time

within which to produce a certificate of title in his own name, and the purchaser is not entitled to rescind the contract by reason only that at the time of the sale the certificate of title was not in the vendor's own name.

The case of Stoddart v. Woods (1889), 15 V.L.R., 457, in so far as it purports to lay down the general rule that a vendor is bound to produce a certificate of title in his own name when called upon to do so, overruled.—Forbes v. Butler, 29 V.L.R., 374.


TWENTY-FIFTH SCHEDULE—continued.

0. If any mistake be made in the description or area of the property, or if any other error whatsoever shall appear in the particulars of the property, such mistake or error shall not annul the sale; but a compensation or equivalent, to be settled by two referees mutually appointed in writing, or their umpire, shall be given or taken as the case may require. The party discovering such mistake or error to give notice in writing thereof to the other party within seven days after such discovery, and each party within seven days after such notice shall appoint in writing a referee, and if either party shall refuse to appoint a referee within the term above specified the referee of the other party alone may proceed in the matter and make a final decision. If two referees be appointed they ar? to nominate an umpire in writing before they enter upon the business, and the decision of such referees or umpire (as the case may be) shall be final.

6. If the purchaser shall fail to comply with the above conditions, or shall not pay the whole of the deposit, or shall not give the acceptances or notes provided for by the contract, or shall not duly pay the same or any of them, his deposit money, or so much thereof as shall have been paid, shall be actually forfeited to the vendor, who shall be at liberty without notice to rescind the contract and to re-sell the property bought by the purchaser by public auction or private contract, and the deficiency (if any) in price occasioned by such sale, together with all expenses attending the same, shall immediately be made good by the defaulter at this present sale, and in case of non-payment the amount of such deficiency and expenses shall be recoverable by the vendor as and for liquidated damages, and it shall not be necessary previously to tender a transfer to the purchaser, or the vendor may deduct and retain such deficiency and expenses out of the amount of any of the before-mentioned acceptances or notes which shall then have been paid, re-paying unto such defaulter within seven days after the completion of the sale the residue of such amount, but without any interest, and returning without any unnecessary delay any then unpaid acceptances or notes.

7. That the vendor will upon due payment of the full amount of purchase money sign a transfer of the property to the purchaser, such transfer to be prepared by and at the expense of the purchaser.

8. That the purchaser shall pay or bear the expense of all stamp duties .on or in respect of the acceptances or notes provided for by the contract and of the transfer to him.

9. The vendor shall not at any time be required by any purchaser or purchasers at the present sale to join in erecting any dividing fence upon any part of the land sold or offered for sale, nor shall the vendor be liable at any time to contribute towards the expense of erecting any such dividing fence, whether the land now offered for sale be sold or not; but this condition shall not prejudice or affect the rights Of purchasers as to dividing fences as between themselves and all other parties except the vendor.

10. If the purchaser shall not give any acceptances or notes but shall agree to pay the balance of purchase money by an instalment or instalments the words " instalment or instalments of purchase money" shall be read in these conditions instead of the words " acceptances or notes."

TWENTY-SIXTH SCHEDULE. Sections:» & £ . ?. d. 236.

1. On making application to bring land under the operation of the Act, exclusive of advertisements:—

When the applicant is the original grantee and no transaction affecting the land has been .registered ... ... ... ... ... 0 5 0

When the title is of any other description or when the application is to be registered in respect of an estate of freehold on a transmission and the value does not exceed £150 ...

AVhen the value does not exceed £300 £450 £600 £750

£1,000 And for every additional £1,000 or fractional part of £1,000

2. Contribution to assurance fund upon first bringing land under the Act :—

In the pound sterling ... ... ,.. ... ... ... 0 0 0 | 3. For each certificate rectified under section 223 consequent on grant

ing the application as sought 4. On every application under section 167 ... 5. For order for and inspection of any documents permanently retained

' 6. For copy of or extract from any document deposited in support of an application to bring land under the Act and retained or any caveat, for every folio of seyenty-two words or part of a folio ... 0 0 6

0 10 0 1 0 0 1 10 0 2 0 0 2 10 0 3 0 0 0.10 0

1 0 0 1 0 0 0 2 0


£ s. d. 0 1 0 i 0 0 1 0 0 0 2 0

TWENTY-SIXTH SCHEDULE—continued.

7. For searching record book of deeds produced (per hour) ... 8. On every application under section 109 9. For Commissioner's certificate under sections 117 and 118

10. For each skeleton or overlap plan under sections 102, 111 and 219 ... 11. On every application by the registered proprietor to have a certifi

cate of title amended as to the description of the land or the map thereon . . ... ... ... ... ... ... 1 0 0

12. On every application under section 216 to rectify other certificates— for each certificate as to which rectification is sought ... . . . 1 0 0

13. On every other application to have a certificate of title amended, and on every application to have a memorial on a registered instrument amended ... ... ... ... ... ... 0 10 0

14. On every application under section 87 or section 102 ... ... 1 0 0 15. For each cancellation of a Crown grant or certificate of title, wholly

or in part, or of an instrument, entry, or memorial under section 97, or of an easement under section J 03 ... ... . . . 0 5 0

16. On lodgment for registration of a transfer to or by any society registered under any Act relating to Friendly Societies, or to or by the trustees thereof lodged .. ... . . . . 0 5 0

17. On lodgment for registration of any other transfer or of a lease, mortgage, or charge, or transfer thereof, or discharge of a mortgage or charge wholly or partially, or satisfaction of an annuity or surrender of a lease lodged ... ... ... ... 0 10 0

18. For every certificate of title issuing upon a transfer to or by any society registered under any Act relating to Friendly Societies or to or by the trustees thereof .. ... ... ... ... 0 10 0

19. For every other certificate of title ... ... ... ... 1 0 0 20. For registering a triplicate instrument of lease or mortgage ... 0 2 0 21. On every application for the consolidation in one certificate of lands

included in more than one grant or certificate—for each grant or certificate to be consolidated ... ... ... 0 2 0

22. On every application for entry of an executor or administrator or the curator or the assignee of an insolvent, or for entry of survivors or other persons as proprietors in cases of joint proprietorship

23. On eêry application for entry of husband as joint proprietor 24. On every application for the entering notice of marriage or death ... 25. ()n lodgment of a caveat 26. On lodgment of a withdrawal of caveat ... ... 27. On lodgment for entry of a copy of writ of fi. fa. or of an order of the

Supreme Court or of the Commissioner 28. On every satisfaction of any such writ lodged—for each entry 29. On any instrument or other document lodged which purports to deal

with or affect more than one grant, certificate, mortgage, lease or charge—for each memorial or entry after the first

30. On lodgment of an application for entry of foreclosure of a mortgage 31. On lodgment of an application for a registration abstract—for each

title affected 32. On every application for cancellation of a registration abstract 33. On lodgment of an application for registering recovery of possession

by legal proceedings or for registering the lessor as surrenderee, or for the removal of a lease or sub-lease upon determination otherwise than by effluxion of time ... ... ... ... 0 10 0

34. On lodgment of an application for the vesting of lease in mortgagee on refusal of assignees to accept the same ... ... ... 0 10 0

35. On lodgment of an application for removal of any encumbrance subsisting at time of bringing land under the Act ... ... 0 10 0

36. On lodgment of an application for removal of any encumbrance not hereinbefore specified ... ... ... ... .• 0 5 0

37. On lodgment of an application for the issue of a special certificate of title—for each title affected ... ... ... ... ... 0 10 0

38. On lodgment of an applicationfor order dispensing with production of any duplicate grant certificate or instrument—for each grant certificate or instrument affected

39. On every application for statement of grounds under section 248 ... 40. On depositing document declaratory of trusts 41. On every plan of subdivision deposited ... 42. For each lot on such plan of subdivision 43. On lodgment of an application to cancel or amend a plan of sub

division lodged under section 211 ... ... ... ... 1 0 0

0 10 0 0 10 0 0 10 0 0 10 0 0 5 0

0 10 0 0 1 0

0 2 0 1 0 0

1 0 0 0 5 0

0 10 0 0 10 0 0 10 0 0 5 0 0 1 0


T WENTY-SIXTH SCHEDULE—continued. £ s. d.

44. For furnishing diagrams, fee to be fixed by Registrar 45. For taking an acknowledgment by a married woman ... . . . 0 5 0 46. For taking affidavit or statutory declaration . . ... . . . 0 1 0 47. For every search for first title where volume and folium are sup

plied ... ... ... 0 2 0 48. For every ten or fraction of ten titles after the first in one name or

one set of names where volumes and foliums are supplied - . 0 1 0 49. For every search for first title where volume and folium are not sup

plied .. ... ... ... 0 3 0 50. For every ten or fraction of ten titles after the first in one name or

one set of names where volumes and foliums are not supplied .. 51. For searching and issuing search certificate 52. For every order staying registration 53. For every certified copy, first folio of seventy-two words .. 54. For every folio or part of a folio after the first 55. For every map thereon ... 56. For commission to a perpetual commissioner to take acknowledgments 57. For a special commission ... ... ... ... . . 58. For every summons 59. For examination thereunder 60. For every appointment for the position of sw.orn valuator under

section 14 of this Act ... ... ... ... ... 3 3 0 61. On each and every application dealing transaction or document what

soever sent by post to or left for lodgment at the Office of Titles under cover upon or for which any fee is payable under this Schedule, an additional fee of ... ... .„ .„ 0 1 0

0 2 0 0 5 0 0 r, 0 0 5 0 0 0 8 0 2 0 1 0 0 0 10 0 0 2 0 0 10 0

VOL. V. 2 Y

Documents

TRANSFER OF LAN ACD T 1915. · to be signe bd y the Registra r or by a Assistann t Registrar shal be l admissible as evidence without furthe proofr . 11. Everythin by thigs Act appointed