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Lorsque le document est trop grand pour etre reproduit en un seul cliche, il est film6 d partir de Tangle sup6rieur gauche, de gauche d droite, et de haut en bas, en prenant le nombre d'images n^cessaire. Les diagrammes suivants illustrent la m^thode. srrata to pelure, )n ck n 32X 1 2 3 1 2 3 4 5 6 te OP WvansUt nf lanJr. /Jf THE ^TORRENS SYSTEM" 7 A PRACTICAL TREATISE ON THE "LAND TITLES ACT OF 1885," ONTARIO, "THE RKAL PROPHKll ACT OF 1885," MANITOBA. EMBRACING THE LATEST DECISIONS BOTH IN ENGLAND, AUSTRALIA AND CANADA ; TOGETHKR WITH A BRIEF HISTORY OF THE ORIGIN AND PRINCIPLES OF THE SYSTEM; THE FORMS, METHODS OF ADMINISTRATION, AND COPIOUS INDEX. BY HERBERT C. JONES, ESQ., OF TRINITY COLLEGE, TORONTO, M.A. ; OF THE UNIVERSITY OF TORONTO, B.A. ; OF OSOOODK HALL, barrister; ADVOCATE IN THE PROVINCE OF QUEBEC; THE AUTHOR OF "jONES ON PRESCRIPTION;" AND "THE m'cARTHY BILL " OK 1883, ENTITLED "AN ACT FOR THE DECLARATION OF TITLES TO LAND AND TO FACILITATE ITS TRANSFER IN THE NORTH-WEST TERRITORIES." TORONTO: CARSWELL & CO., 26 .fe 28 ADELAIDE STREET EAST, 188(5. w iMMMPBOTlWWUiiaLi Entered aocordinp; to tlie Act of the Parliament of Canada in the year of our Ijord one tliou»ai\d oiKlit liundred and oi?lity-Hix, by Heiiuert Chilion Jones, Barrister, Toronto, in the office of the Minister of Agriculture. PRINTED BY MoORE & Co., Law rRINTEBS, 20 ADELAIDE ST. EAST, TORONTO. TO BEVERLEY JONES, ESQ., M.A., liarrUter-at-Law : Honorary Secretary of the CANADA LAND LAW AMENDMENT ASSOCIATION. year of ou»« LION Jones, AND oniQlNATOH OF THK *' "^IToiTcniS %)stcm"in the IDominiort of OTanaba, THIS WORK —18- ItESPECTFtTLLY DEDICATED AS A RECOGNITION OF UIS SERVICES IN THE CAU8K 01-' LAND LAW BEFOBM. i! m TOrTtwj^,i5 "I have never hv.c able to perceive the ()l)staclc to applying to laml, the system of transfer which answers so well when applietl to shipping; but, as my learned brethren, one and all, have declared that to be impossible, I had become impressed with the belief that there must be something wrong in my intellect, as I failed to perceive the impossibility. The remarkably clear and logical paper which has been read by Sir Robt. Torrens, relieves me from that painful impression, and the statistics of the successful working of his system in Ausir.dia amount to demonstration; 80 that the man who denies the practicability of applying it might as well deny that two and two make four." Extr^ict from a s/>ji\lt ihllvcrcd by Lord Culcridgc, (now Lord Chief jfiistiie of Ennlaiid), prciidiiijr at the Congress of the Law Amendment Society of Cheltenham, En/rland, in 187^, " My object in writing this essay has been to demonstrate that (here is no exaggeration in the estimate of the Royal Commission of 1858, backed by that of John Stuart Mill and others of experience and authority on such subjects ; that the application to land in this country of a safe, cheap, simple and expeditious method of transfer, such as that adopted for pro- perty in shipping, would have the effect of adding five years' purchase to all the land in the country." Extract from essay of Sir R. Torrens, pub- lished by the Cobacn Club. PREFACE. ATliKATlSE on the Torrens System and its application to Canada will doubllcbs he appreciated at tin; present time, when the minds of men, hoth in I'lngland and America, are turned to the transfer of land. The success of the Torrens System in Australia has been remarkable ; and if this hook contributes to a better understanding of this system, the labour in writing will not have been thrown away. Hardly anything requires more perseverance, accu- racy and industry than writing a law book, and the labour is much greater when the subject is entirely new, and when the object is to explain the meaning of Acts tending to revolutionize the whole system of the transfer of land. In the introduction to the Land Titles Act of 1885 ( Ontario), and the Ileal Property Act of 1885 (Manitoba), 1 have set forth the origin of the Torrens System, and the causes of iia introduction into the Provinces of Ontario and Manitoba. Both Provinces may well take credit for being the first States among the Anglo-Saxon communities of North America to introduce a system so beneficent in theory, and of such practical utility. While the people of the United States are only beginning to talk about moving the immense incubus placed on land by their and our old system of transfer, the Colonies of Australia have proved the adapta- bility of the Torrens System by a practical experience of a quarter of a century, and the Provinces of Ontario and Manitoba have followed their footsteps. British Columbia, vi rui:i'"A("i'.. to ho Huro, hftH hoiuc ftiiturcK of the TonciiH HyHtcni. So ffir ns thoy have Rono, they arc entitled to the credit of heiriR the firnt on thin continent, altlioiij^'h tht'ir Act can hardly he called the introduction of the Torrens SyHtein. Shortly hcfore tluH hook was conmu'nced, the author of th(! syHteiu, Sir U. U. Torrens, died, and I can lind nothing,' l»etter to Hay on this Huhject than to copy an ohituary notice which apiieared in 77/«' K'cc/,, from tl»o gifted pen of Professor (told win Smith. " The death of Sir U. li. Torrens has closed the career of a man who in an unohtrusive way was no Hniall hene- fa^ttu' of society, and whose work it may he confidcsntly said will live. It was the sight of a friend drawn in to what lu! (ialls the nuielestrora of chancery that led him, as ho says, to turn his attention to the reform of the law con- corninf,' the title to and the transfer of real property. Tlie law of personal property is the rational otVspring of civi- lized times ; hut that of real property is or was, when Sir It. 11. Torrens commenced his heneticial efforts, the dark l)rot?eny of the feudal ages. In the Saxon period tho tenure of land was simple, and the mode of transfer hy open sale in the local assemhly hefore neighhours whose memory served as tho register, was reasonahle and convenient for an unlettered age. But the conquest hrouglit the system of feudal tenures ; and further complications witliout limits were superadded in consequence of the Statute of Mortmain, and tho Statute of Uses hy tho rival ingennity of convey- ancers, ecclesiastical and lay, till, what with tines, recoveries, leases and releases, and other tortuous inven- tions of secret conveyancing, tho system which even l»y tho time of James I. had hecome ' manifold, chargeahlo, tedious and uncertain ;' was hy Blackstono desorihed as a wonderful tissue of " metaphysical suhtleties serving no other purpose than to show tho vast powers of the human intellect, however vainly and preposterously applied.' Cromwell attempted law reform in regard to the transfer of rUKKAt'K. til liiml, iiH Well as in icpiird to cliiinci'rv itiocodurct and otluT (k'partiui'MtH ; l)nt ' tlie houh ot" Zrruiuli wtrt' too stroijj^ for him,' and all that ho could do was to uho Ireland ' an a white paper ' for tlu' trial of hoiui; of hiH roforniH. Sir It. 11. Torrcnfi would have found th«i houh of Zcruiah too Htronj^ had ho hron conii-fllod to adopt I'^uf^land aw tho hcouc of luH ctTortH. Hut coloni/.ation iH an oxodus fioni the trnditionH and pr('judic»!ri of the Old (y'ountry. In the AuHtralian colonies tho ' Torrens ' system luis thoroughly taken root, and in ('aH(! of small lots especially, a Torrons title is an ebsential part of an advertisement for this market. In Canada the improvement is still stru^'^linIU'IU of tilt! A(;t, 1111(1 fiH tiiiio ^oi'H on, otlioiH will no doubt he found to follow their t'Xiiniplo. Other portioiiH of thu Province Hhould not h«) dnharriul froJii thoHo hciHtitH ; hut purlieu- lii,rly in thiw runuirk iii>plicuhlt! to tlui l)iHtrift of Al^^onui, iind that largd isxtent of country which Iuih heen awardod to th(( Province hy the dociHion of the Privy Council on the Houndary Award. TruHtiuK that this book will bo of bentilit not only to the I'rofoHHion of which I am a hunihlo menibor, but al8o to the people of my native land, and with great hopcH for the HuccesH of the Torrenn SyHtom, I HubHcribe niyuelf 11KHPEI5T C. JONES. Osgoodo Hall, Toronto, March Hh, IBHd. TABLK OF C:ONTI'NTS. LAND TITLKS ACT. Introduction Iii(l«Tfnl Acts rolntinK to . . rrt'liminary .. Entry of land on register of titlu Loasehold land ivexistration how effcctwl Registered dealings with rt;gisfen J land UnrcRistered dealings with registered land rrovisioiis siip|iieiiifntal to foregoing pans of Act Adrninist ration of law and miscellaneous Schedule uf rules of Land Titles Act Schedule of forms .. PAOK t ii aj 3« 4C 54 70 lou 112 150 166 194 REAL PKOI'EKTV ACT, Manitoba , , .. 219 Intioduction , • • . 221 Short Title 225 Land Titles Office . . 2JO Amendments of law of descent of lands • 235 Register, duties ot Registrar . 242 Manner of bringing land under Act . 2.j8 Transfers • 275 Leases . 280 Mortgages and Incumbrances . 284 Powers of Attorney • 297 TAHIiK OK CONTENTS. PAdK RcRistration Abstract ^orf Transmissions Caveats .}"« 309 Attestation of Instruments 3M Jurisdiction of the ('onrt 3'5 Ejectment. Assurance l-und, etc 3-!2 Miscellaneous jirovisions I'enalties Officers 33-2 343 •• 344 Schedule of forms • 345 Appendix I'orms (additional) Cases 357 357-401 402 TABLE OF CASES. I'ACilC Alma Consols G. M. Co. v. Alma Extended Co 272 Alma Consols (i. M. Co. v. Alma Kxtonded Co 27^ Arnold V. Chapman 230 Ashby V. Ashby yg Attorney-General v. Ilarley. . . . 239 " " V. Weyinouth 239 " " V. Graves 239 " " V. Tom kins, . 239 " " V. Meyrick . . 239 V. Caldwell.. 239 Australian Deposit and Mort- Rage Bank v. Lord 73 Bank of Montreal v. Munro ... 99 Beath and otliers v. Anderson . . 90 Biggs V. Waterhouse 320 Boulton V. Ferguson (Doe dem) "98 Bonvin v. Andrews 45 Bonnin v. Andrews 149 Bonny v. Hopkins 329 Brady v. Brady 150 Bradish V. Cleames 116 Bucknall v. Reid 74, 324 V. •■ 324 PAGE Cahill V. Hcnty ^47 Calvert v. Pate (xj Caniemn v. Todd 287 Campbell v. Janet 320 Chisholni V. Capper 68 Colonial Bank v. Roach (>g " " V. Babbage .... 69 " V. ■■ 286 Cook V, I'owler 73 (?ollinson v. I'nter 239 Cottrell V. VVatkins 267 Cunningham v. Gundry 69 Cullen V. Thompson Gq Cuthbertson v, Swan 247 V. ■' 324 Delaney v. S:indhurst Building Society 285 Duchess of Kingston's Case ... 99 lix pane Bond 2f,o " " '■ 95 " " Brown jo xu TABLE OF CASES. PACE Ex parte Bowman 261 " Hurnell and another. . 316 " " I'.fissel bi ^i " " Cunningham <)2 " {'3 1' " " 64 " " " 40^ " Doughaity 260 " Folk 261 " Hassall 290 " Johnson 106 63 64 " " Lyons 3>2 " Morgan 257 " " Patterson 94 95 " " Paterrion 261 " " " 260 " Pennington and others 318 " Smart 260 " " " 316 " Wise 107 " Willis and another ... 317 Eccles V. Lowry 99 Ettershank v. The Queen 272 Freed v. Orr 98 " V. " 307 Frothingham v. Archer 149 V. " 329 Fitzgerald v. Archer 261 Gardiner v. Juson 98 Giles V. Lesser 96 Gordileo v. Wegmelion 73 Grave v. Wharton 68 " V. " 69 PAGE Greig v. Watson 75 " V. " 77 " V. " 78 " V. " 286 " V. " 290 Gold V, Strode 99 Gunn V. Hervey 274 " V. " 3'0 Hassett v. Colonial Bank of Australasia 95 Hagerman v. Strong (Doe dem) 99 Hervey v. Inglis 288 V. " 289 Hickham v. The Queen 291 Hodgson v. Hunter 319 Hossett V. Colonial Bank of Australia 149 Hossett V. Colonial Bank of Australia 329 Hyde v. Dallamay 333 In re Bannerman 413 " Barnes 313 " Belmore Silver and Lead Mining Company 107 " Clark 106 " Caveat of Fearnley 107 ' ' 1 ransfer 260 " Transfer of Land Statute. 2C1 " Nathan 128 " Rattray 257 " Ray 304 " Riggs 320 " Caveat of Slack 106 113 " Transfei- of Land 95 " Salter 147 " 249 ' Winter 75 " Irish 416 TABLE OP CASES. Xlll PAGE Jamieson V. Lynch 411 Jay V, Richarason 135 Jesson V. Wright 317 Jones V. F'ark fJ2 V. " 63 " V. " 64 Jones V. Todd 287 Johnson v. Swan 239 Kickham V. The Queen 95 Laing v. Avery 69 Lange v Rudwolt 247 Liverpool Bank V. Tuinur .... 275 Low V. Morrison 121 London Chartered 13k. v. Hayes 128 Lount V, Ball 28') London Chartered Hank of Aus- tralasia V, Hayes 291 Low V. Morrison 2fj7 Malone V. Harris 13.^ Martindale (et al.) v. Clarkson. 104 Mandevclle v. Nichols gq Macnamara on Nullities 99 Martin v. Gall gg McCahill v. Henty 272 McDonald v. Rowe 288 " V. " 290 PAGE Meade v. Adams 95 Miller /. Moresey 273 Moss V, Williamson 91 " V. ■• ,31 V. " 320 " V. •' 407 Murphy v. Mitchell 40 V. ■• 267 V, " f,8 Munroe v. Sutherland 69 V. " 61, ;; ^- " 273 " V. " 2p: Munday V. Prowso 324 National Bank of Australasia v. United Hand-in-tland, etc. Co. 78 National Bank v. United Hand- in-Hand, etc. Co 247 National Bank of Australasia v. Hand-in-Hand, etc. Co N.ational Bank of Australasia v, United Hand-in-Hand, etc. Co National Bank of Australasia v. United Hand-in-Hand, etc. Co. 289 National Bank of Australasia v. United lLand-in-Hand,etc.Co National Bank of Australasia v. United Hand-in-Hand, etc. Co. 291 Nepean v. Doe 67 286 287 2 0\ Oakden and others v. Gibbs 329 Patchell V. Maunsell gO v. " 106 V. " 1 28 V. " 303 V. " 3r,5 Powell v. Graham gg Price V. The Bolt and Iron Co.. 70 Price V. The Great West-^rn Ry. Company 73 XIV TABLE OF 0ABE8. PAGB Queen v. Si. Catharine's L. Co. 50 I'AGB Re Bell 59 " Ballantyne 3i9 " Chamberlaine 59 " Caverhill 59 " Drew's Estate i35 " Higgins 59 •' Irish 319 " Roberts 73 " Richardson 75 " Slack V. Winder 257 Ransom v. Williams 99 Richards v. Jones 128 Rowe V. Jarvis 99 Roberts v. Croft 127 Robertson v. Keith 68 V. " 69 Registrar of Titles v. Paterson.. 95 V. " .. y6 Reg. V. Tavlor 275 Ross V. The Victoria Permanent ' Building Society 289 Ross V. The Victoria Pe-manent Building Society 290 Samis V. Ireland 99 Sanders v. Nadham 324 Scott V. Nixon 333 Shamrock & Co. v. Farnsworth. 273 Small V. Glen 273 Staughton v. brown 68 V. " 69 Tail V. Harrison 09 United Hand-in-Hand, etc. Co. V. National Bank 96 United Hand-in-Hand, etc. C;o. V. National Bk. of Australasia. 286 W White V. Evans 239 Wilkinson v. Brown 272 Westerdell v. Dale 287 Williams v, Bosanquet 287 ERRATUM AND ADDENDA. ERRATUM. For " section 9," page 59, second line, read •' Rule 9," ADDENDA. The following amendments to the Land Titles Act have passed the Committee of the Legislature and will likely become law. In the " Act for further Improving the Law," the Land Titles Act, 1885, isamended as follows : — " Section 35. "Lessees who may apply. " (i) Section 15 is amended by inserting after the word 'unexpired,' in the seventh line, the following words: 'or in respect of which the lessee or his assignors is or are en'' '■^d to a renewal term or succession of terms amounting with the portion unexpired of the current term to twenty-one years or over, or to a renewal for a life or lives.' " (2) Section 55 is amended by substituting 3 for 21, in the fifth line of the said section, " Absent parties. " (3) Section 78 is amended by substituting for the words ' beyond seas,' the words ' from Canada.' " (4) The said Act is further amended by inserting the following:— " Lien same as Mechanics' Liens Act. "6ja. In the case of land registered under the Land Titles Act, 1885, if a person entitled to a lien on such land, under the Acts relating to mechanic's liens, shall lodge a caution, supported by an affidavit to the same effect, as required for registration under the said last mentioned Acts, such caution shall have the same effect as registration has under the said Mechanics' Liens Acts, and be enforced within the same time, and discharged in like manner. (R. S. O. c. 120 ; 45 Vict. q. 15 ; 47 Vict. c. 18.)" ii INTKODUCTION. rpiIIS Act is tho outcome of sevcrftl Acts foundod on the -*- Tonu'iis Hystc'in. Sir IJobort Torreus, Hart., formerly a Custom I louse clerk at Adelaide. South Australia, con- ceived the i(le;i, in or uhout the year IrtoO or IHal, that a new, simpler, and more certain system of transfer of land niifrht he invented than the old English practice of convey- anciuj; then in vo;,'uo. Although he was not a member of the Profession of the Law, with untiring energy and perseverance, and in the face of many difliculties, he organized a system, and succeeded in passing an Act ft mded on the system, which came into operation in 1856. ll'! was appointed liegistrar-General, superintended the working of it, and nnxde the system a success. The chief heuelit of the system was the indefensible nature of the Title obtfiined, together with the speed and certainty of transfer and the abrogation of the necessity of Abstracts of Title. The system was found to be a great benefit to the people in South Australia. The other colonies of Victoria and New South Wales adopted it, to be followed by Queensland, Tasmania and New Zealand, till at last the whole of Australasia have seen fit to adopt the Torrens System. In 1879, the Hon. Edward Blake made an eloquent orafi' :;; Newmarket, County of York, Ontario, in which ih'-^ . .'Ylfs of the system were highly extolled. His re-ja,,i Were received with applause by his hearers, and as it Hcis at the time of an election contest, many thought that the Government of Ontario were pledged by their spokesman to bring in a Bill, founded on the Torrens 2 INTUODICTION. 8yHt(!in, luul npplicnldo to Ontnvio, in cnfio ^fr. Afowat and liiw (lovcrnnicnL should \)v ntmiicd to power. An examination of title, witli a, view of reniovinfr all cloudw, niUHt necessarily precede vej;iHtratioii by the Torrens int'thod, and it was sui)posed that Mr. ^^o^vat (who was the author of the Act for (^uietinj^ Titles) would willini^dy adopt a systeni thi! object of which is to keep from bcin^ a'^ain entau^'led, titles which have been ipiicted. Ucforo his elevation to the Jiench in iHlll, ^[r. Mowat hinl often shown liis inter(;st in the cause of land law rcjform by the advo- cacy, both in and out of I'arliiinunt, of ini[)('riant land measures. Jlis recoi'd on this subject may have made thc! friends of the Torrens system nnduly sanguine of early success. I'ossibly, while they were enlif^hteninj^ the public as to its merits, he was educatinjj; his supporters in the Legislature in the same direction. However, in March, 188r>, under his auspices as Attorney-General, the system was adopted for the important County of York, including the City of Toronto. We trust it will soon be extended to the whole Province. In the Session of 1883, an Act founded on the Torrens System, and entitled "An Act for the Declaration of Titles to Land, and to facilitate its Transfer in the Territories of Canada," compiled by Beverley Jones and Herbert C. J'Mies, was introduced into the House of Commons at Ottawa by ^[r. McCarthy. In the spring of 1888, the C'anada Land Law Amendment Association* was organized, and, by means of pam[)hlet:5, petitions and personal activity and interest, was able to make the benclits of the Torrens System known to the people and the Legislature, and they are entitled to much credit for the present condition of public opinion on the Transfer of Land. ♦ The foHowinR gontlenien wore the first ollicers of the Association :— I'rt'sidont, J. Hcvtiort Mason, Kk(|.; Vico-Vrosidonts, W. B. S<'artli and Daviil Mlaiii, IjIi.I'.; Truasurcr, lion. S. f'.Wtxid; SeiTctary, Uovorlcy ioncs; Corrt'spomlini,' Sooixtary, Giiorno S. Holinstoad ; Diro(:tors, ,Iolm Leys, S. G. Wood. John A. ratcisun, .). J. Foy, James Metcalt, .John Kiskeii, Wni. Uou.i,'las, M.A. ; W. Korstuniiin. .Ir.; .1. H. Clark, and U. H. 'i'oniliuson. INTUODUCTION. 8 Tn IHHI tho panic Act wiih intrndiiced into tli(^ Hotiso of Comnioiirt by Mr. McCarthy, and in iHHf) a similar Act for till' moHt part a traMsc*ri|it of the Drciaratioii of Titles to \jiiud was introduced l»y tlic lion. Sir Alex. Canipbell, and |)aHS('d tlio Senate. No doubt it would have becoino law had not the House of Coniinons boon burdened with too much businoss on account of tho lliul rebellion. Tht! Canada Land I^aw AniL-ndment Association also took 8t(>i)s to hav(^ tho Torrens System introduced into the i'rovinci' of Manitoba, and the Act has boon passed, and is now tho hiw of tho rrovinco. In tho City of Now York also the bonelits of the system are be^^inninjj; to be discussed. A commission has boon formed and an able report published i)y i)wi|];ht Olmstead, Es(p, a })rominent lawyer, iind Chiiirnuin of the Commis- sion. Althouf^h Sir liobert Torrens is dead his good works follow him. The Tjand Titles Act, 1H85, is founded on the Imperial Act 88-Ji!) Vic, cap, H7, which was founded for the most part on the rcconnnendations of the Jioyal Commissioners of IHij-l, who reported in 1857. The evils to which tho Commissioners had to address themselves were two : — First, the length of time which must elapse, and tho expense that must be incurred between the making of a bargain for tho sale of land and the completion of the sale ; and, secondly, that however carefully a title might bo investigated on a purchase, the same jn'ocess had to be gone through again on every sub- sequent pnrchase or mortgage. The history of the Act has been ably summarized by Mr. Holt in the introduction to his " Handy liook on tho Registration of Title and Transfer of Land," and I here insert certain portions which may be interesting to my readers. INTUOlUt TKiN. Tlio nciicral cnVct nf tlif kind ol M'<,'iHtrntion vt'ooininoji- «1((1 liy tilt' l!i'|i(trt is IIiiik Ktiiltd Ity the ('(mimissidiiciH ; — " Tliiit lor tlif purporti'H of tiMiiHt'cr tlif rt'LiiHti'fftl owiicrHliip will lit all tiiiu'S rciircHt'ut tlic IVc Hiinplc of llic itropcrty, iukI MS sucli, it will not Itc capiililc of any Htilt-diviHion or uioditii'ation into partial or liiii'tid cHtHtcrt or inttrcHtH," t'Xci'iit (diarK»'H imd Ichhi's; tliat " xlr-ii tins rcjjiistcrcd owner- nliip inis not licen warrantrd it will lie Huhjcct to Htidi rights and intrrt'slM hh existed in or were caimhle of attindiinj^ npon the property at the time ot the lirst registration, hut it will not he Knhject to any rii^hls or iiiterestH arisiii;^ or created at any period suhsei|nently to the time wiicn the th'ht registry was etVeeted, except (diarj^es and lejists ailniit. ted to the rei^ister, and except interents protected hy caveatM and inhihitiotiH," and that when the re^jistered owner.Hhip in a warranted ownership it "will he suhject only to other rejiistered I'i.uditK, and will he cNcmpt at once from all Intent (daims and interests which may have lu'en created pre- viously to tiu; time when the pi'o]ierty is rej,'isterod." Fnder tlie systoin r.hove descrihed, u ])in-(diaRor or niort- j»ii;^'ee would h:ive, when the title was warranted, simply to deal with tlie re^^istered owner, and u])')n the renioviiifj; any caveats or inhihitions there nii<:;ht he on the re;^ister afU'ect- in;.' the land, to i)ay his money to, and take his conveyance! or m;)rt^;a;^'e from, the rei^istered owner : and thus he would be saved all the delay ami expense of invi'stij^atinj^the title. On the other liatid, when the title was unwarranted, the title anterior only to tirst registration would liave to he :uvesti}j;ated in the usual way ; hut in that case also the delay and expense of proving tlu! title subsequent to iirst re!j;istration would be saved. I'.or these and other reasons the Commissioners considered the i)lan they proposed would afford great facili/ies for the sale and transfer of land, and that the evils complained of would be substantially obviated. In the vear 185S), Lord Cairns, then Solicitor-General, in INTIloDt'fTION. u HjMM'cli wliicli wiiH clmrm'tcriscd l>y the liitn Ijurd Mrniit^- liiini lis " Mil I'Vi'iit ill till' history of Ici^isliitio.i, tiinl iiii ovont in tlx! history of tlic tiiiit'tuliiiciit of tlm liiw," iiltiT ciilliii;^ iitli'iition to the ciiiiil.crsoMU'. (liiii^'tTdiiH, dilatory, mid ('\|K'iisiv(' prix't'sscH tliiit had to lie i^'oiif into wliiii tln'n' Were any dfaliii^^'s wifli land. iiiiroiiii<'i'd two Mills into tlu' lloiisi' of (!oinmons on tlu,' stiltjcct of tlit' n';4iMtralion of title lis alVoi-dinoii wills, settlements, conveyances, and othi-r documents lift for re;^istration, and delincH the estates and interosls taken thereunder, the entry in thu ref^'ister amounts to a declara- tion of title in favour of i)urchaser8, and it is, of course, tho duty of the registrar to put sucli construction, and so to delino the estate and interest in every case where it is pos- sible to do so in order to etTectuuto the objects of tho Act. But the construction which is put on tho various transac- tions, is not always that on the faith of which the (lealinf,'8 have taken place, and, in most cases, when difliculties are found to exist in the oft'ect of the documents left for re<^is- tratiou, the action of the olHce is not only without, but often actually aj^aiust, tho wishes and consent of the parties, and dilUculties arise in completing the registration owing to tho unwillingness of the parties to render tho necessary assis- tance. Experionco has, imlood, shown that tho fact that tho system at present requires all motion for tho comple- tion of the registration of transfers, to come from the regis- trar instead of from the parties themselves, and compels action by the registrar even against the wishes of the INTUODlt TION. parting, nponito»« a« a oonrtidcraliln f)hji'<'tion to thn Hyrttom on tlio part of tliu puldic. (Uuport of Ih7<), Appi'iidix p. Hi.) Tlio tlidory of fjoi'il WtMtliiiry's A(!t, in, in fact, mcolleiit ; ftirl HO lonj^ as tlu'i'n witc only a fow ciiscrt, ami pirsuiiH out* Hitlo tint olVicu, availiii;^ tlicinsclvnH of the I Act, ^'avis their lioarty co-oponitioii in carryiti)^ it into clTrM, it wan found to woi'k uasily and well, and to confor Hnbntantial iMtiitltH on till! owiiiTM of ri'^irtttTiid rstatoH. Tint rcHnltw of abstractrt of titlo of Hovural liiindrod HlnctM, and to Htiveral linndi'iHl acros, woro statitd in " Land CertilicatDH," wliiidi mi;,'lit 1)0 easily written on a Hlit-et of ordinary note paper, the parcels hcjn;^ dtscrihi'd hy refennce to an anntxed inajt, and with these ecrtilicatert in tlnir hamls the r( ^^ds- tered ownerH coiiM riell or niort^^a^^e their land without any dtday, and at a mere nominal ex[)en.se. An oijjection wliiijh ;,'o.'S to the whole prineiplool the Act of IHO'i, and no doiiht, deserves considi'ration, waw, how- ever, noliood hy Mr. Ouvry, of the hrm of Farrer, Ouvry it Co., in the paper which he Bent to the ConimiHsioners of 18(iH. Ho atatod " a curioUH etTect of rej^istration hh alTeet- ing the owner was mentioned to mo. The owner having registered his title, refpiired a loan: his solicitor found it extremely dilUcult to get a loan, hecaiiHe there was no title to investigate, and thend'ore little or no costs to the solici- tor of the person making the loan." The remedy for the imi)ediment suggested so far as it may exist is evidently that of a more littin.^ mode of reiuuneration to solicitors than now prevails, and which Mr. Ouvry considered was a just grouiul of comi)laint, not coniined to the possible ellect of registration in diminishing the prolits of solicitors. The value of the property registered under Lord West- hury's Act is estimated at about I'lJ.OOO.OOO, much of which is frequently dealt with, and it is believed that no error has been made in, or injury done to anyone by the registration proceedings thereunder. T- 8 INTIIODUCTIOK. In the year 1808, Lord Cairns, then Lord Chancellor, after communication with the authorities of the land regis- try, ohttiined a Hoyal Commission, to which relerence lias already heen made, to infjuire into the operation of Lord Westhury's Act, and whether any alteration and improve- ment ought to he made. The late Lord UomiUy was the chairman, and the Inte Lord Westhury, ^Ir. Spencer Wal- pole, Mr. Lowe, the late Lord Justice Giffard, Sir Henry Tliring, the late Mr. Waley, and other eminent legal gen- tlemen, W(!rti memhers of this Commission. The Commissioners made their Beport in 1870, and thcrehy condemned the system of registratioi; r'. title estah- lished by the Act of 1862 on account of the necessity which it imposed of — (1) showing a marketable title, (2) defining boundaries, and (3) registering partial interests ; but they recon^mended its continuance and also the establishment of a new registry, founded in substance on the principles of the Report of 1857. The result of the recommendations of these Commissioners, as gathered from tho Report gener- ally, would seem to be — (1) that any ])erson claiming a fee simple, or a power to dispose of the fee simple, should be enabled to present his title for registration, and tbat the recency of the date of his acquiring title should be no objec- tion, precaution being taken against bringing in tictitious' titles by requiring atBdavits and notices, and also inquiries on the spot ; (2) that the title should be investigated only as from the date to which the owner laid claim to have his title fixed ; (3) that whatever might be the period of inves- tigation, the registrar should have power to accept for regis- tration, as practically indefeasible, titles commonly known as good titles, though not teclinically marketable ; (4) that the boundaries of land to be registered should not be fixed, but that the owner h.' merely required to furnish the best description that he could ; (5) that the purchaser of regis- tered land should be left to ascertain in the usual way the identity of the land registered with the land he had con- INTUOni'CTION. 9 traded to buy ; ((5) that tlio title reRistorod, and to be kept on tlie register, sliould he the ahsohite ownership only; (7) that long beneficial leases should he treated as absolute ownerships, and as such entitled to registration ; (8) that all other partial interests including charges aiul ordinary leases should be kept off the register, and bo protected by caveats; and (!)) that all transfers by registered owners should be on tlie register. The Comniissionjrs were twelve in number. Lord We8tl)ury took no part in tlie proceedings, and with Mr. Spencer Waliiole and Lord Justice Giffard abstained from signing the liejjort. And, it is curious that, though the li^po-'t expressly recommended that the registry established by Loi'd Westbury's Act should be continued, seven out of the twelve Commissioners, including five out of the nine who actually signed the Report, being in either case a majority, signed separate protests against the continuance of that registry ; and also tluit five out of the nine Commis- sioners who signed the Report, for one reason or another signed separate dissents from it, whilst Mr. S. Walpoleand Lord Justice Giffard stated jointly their reasons for not signing at all. The principal points of dissent were the exclusion of charges and leases from the register, and the non-recommendation by the Report of the establishment of a Landed Estates Court for the investigation of title and the general superintendence of registration proceedings as proposed by the Bill of 1859. ^Mr. Wa^' ", the eininent conveyancer, in his dissent, expressed his opinion that no one should be permitted to register even with a qualified title without an independent otiicial investigation of his title, and that that investigation should extend to all the title deeds of the applicant, or (where those deeds go back beyond sixty [now forty"; years) to the full period of sixty (now forty) years, notwithstanding that the application may be for registration of a title commencing at a more recent day. These requirements he considered abso'utely needed 10 INTRODUCTION. as tests of good faith, nnd to prevent the registry from being used for fraudulent and unfair purposes. The elfoct of registration without investigation of title (that is with a possessory title), as proposed in the Report of 1870, is thus stated hy tlie Commissioners : " Suppose, for instance, a man purchase land (in fee simple) in Decem- ber, 1868, we see no reason why ho should not register his purchase in January, 18(59. The effect would be Ihis : he would appear as owner of the f-eo. If he wanted to sell in February, 1801), h's registration would avail him nothing in his dealings with the purchaser. It would only be of use as enabling the purchaser, when satisfied, to become regis- tered owner without further official investigation ; but the purchaser would of course require the same proof of title as though no registration had taken place. But suppose five years elapse before the owner wants to sell, the purchaser would still probably require proof of prior title ; but at least for the last live years the owners may point to the register, and, if clear of notices, escape showing title for that time. If thirty years elapse few purchasers would, according to the evidence before us, require any other title. If sixty years ; now forty years] elapse none could require any other. Thus, lapse of time will confer a title increasing in validity till it becomes marketable, in the technical sense, and prac- tically indefeasible. It is as if a filter were placed athwart a muddy stream ; the water above remains muddy, but below it is clear, and when you get so far down the stream as never to have occasion to ascend above the filter, it is the same thing as though the stream was clear from its source." In the year 1873, Lord Selborne, then on the woolsack, introduced a " Land Titles and Transfer Bill," which was subsequently, on the suggestion of Lord Cairns, referred for resettlement to Mr. Charles Hall, now Vice- Chancellor Sir C. Hall. After resettlement as arranged, the Bill was, in 1874, with some modification reintroduced by Lord INTRODUCTION. 11 Cairns, who had meanwhile succeeded Lord Selhorne as Lord Chancellor, hut was eventually dropped on reaching the House of Commons through the pressure of other puhlic husiness. As it is on this Bill that the present Act is pro- fessedly founded it seems proper to state its principal features. Lord Selborne's Bill proposed that any person who could satisfy the registrar that he was jnimu facie entitled to land in fee simple, and that there was possession in the same right, might he entered on the register as proprietor of the land. No investigation of title was required unless the application was for a certified title, limited or absolute. If a certified title was required, the title was to be examined by the registrar, and an examiner, and evidence furnished of possession in accordance with it, for five years then last past in the case of a limited title, and for twenty years at least in the case of an absolute title ; it being also neces- sary in the latter case to show a good holding title, i.e., a title which, in the ordiiiary course of business, is accepted as sufiicient by conveyancing counsel. If a title were certi- fied as "limited " it would be guaranteed as good as from a given date, say ten years previously to registration ; whilst if it were certified as "absolute" it would be altogether indefeasible. The registered proprietor for the time being was alone to have power to deal with the land on the regis- ter, and was to be entitled in fee simple, subject only to the anterior title, if any, not covered by certificate, and to charge and transfer the land accordingly in a given form on the register. No notice of any trust or unregistered estate was to have any effect on a transfer for value by the registered proprietor ; but a registered proprietor who was actually a trustee was to be personally bound by the trust. All ordinary dealings, such as settlements, charges, and wills, might be entered into off the register, in like manner as though the land were unregistered ; and the persons interested under such dealings might protect them- 12 INTIWtDUCTION. solves from beiriR prcjudiciiilly iirt'ected by any act of the repfifltcrod projirietor by entering; caveats on the register, and so entitle tlieraselvcs to have notice l)efore any dealing by tlu! registered proprietor was completed by entry on the register. These caveats would, therefore, represent the beneficial title, and the Bill proposed that any cpiestion arising on them should be disposed of by tlie Court of Chancery. But estates, whetlier large or small, are gener- ally subject to some kind of settlement, trust, or charge, and are seldom the al)solute i)roperty of one proi)rietor. The interference of the Court of Chancery would, therefore, constantly be necessary in getting rid of caveats on dealings with registered land ; and expense to the registered proprie- tor, and vexation and delay to both parties would probal)ly ensue from such interference. ]kit the Bill of 1878, also proposed that there sliould be a " Board of Registry " similar to that proposed by Lord Hatherley's Bill, and that the registrar, who was to be a member of the board, should conduct the whole business of registration, his duties being of a highly judicial description. He was to decide if a title were a good holding one and how far it might be declared indefeasible, and also on any objections that might be raised and not referred to the Court of Chancery. He was also to hear and determine questions of boundaries, to determine as to the satisfaction of estates and incumbrances noticed on registration, and in fact daily to exercise judicial super- vision 'Ver the business of registration and the certification of title. It is difficult, therefore, to see why, if the regis- trar were thought capable of exercising these judicial func- tions, it should have been thought improper to entrust to him the power of deciding whether a caveat should be dis- charged or continued, particularly as it would seem clear that the Court of Chancery is not suited to the transaction of registration business which requires constant judicial supervision. Lord Cairns, as had been before stated, in his Bill of 1859, proposed to establish a Landed Estates Court INTRODUCTION. 18 for the detenuiniition of all (luestions arisiuf^ on title or on caveats, statin;;, on bringing? the matter biifore the House of ConiinouH that, in his o[)inion, it Wiis essential to the success of any system of the kind, that it should he founded on a judicial basis with proper powers, and such as would command the respect and confidence of the public. His Lordship accordingly, on the second reading of Lord Sel- borne's J3ill in 18715, said that he had a very strong opinion that any system of registration of titles to be worked suc- cessfully, must follow the precedent which had been adopted in Ireland in the Landed Estates Court — it must be worked by persons of position, dignity, and exj)erience, who would bring to it that amount of authority and weight, jiersonal knowledge and skill, to which the Landed Estates Court in Ireland o\ved so much of its success ; and added that he believed it was utterly impossible to have any system of registration of title unless they had s'>' " ' person, or court of sulHcient authority to decide questions of law which would arise. And again, in introducing the Bill of 1874, in which the scheme of establishing a " Loard of Registry" was altogether dropped, Lord Cairns, then Lord Chancel- lor, said : — " The question will be asked who is to register the title '? I take the office which already exists — the office of the land registry. 1 own, it may be, perhaps, a partial- ity for my own offspring, tliat I should have been better pleased to have established in this country a Landed I'^states Court, after the fashion of the Irish Landed Estates Court ; but there is the difficulty of having an office which has been already created, and which I wish to utilize. In addition to this consideration there is the fact of the pass- ing of the Judicature Act of last year, the piinciple of which is to congregate all the principal courts of the kingdom. It would be somewhat at variance with the provisions of that Act to establish a fresh court outside ; but I am not with- out hope that, if this measure turns out successful, we may have at some future period a conveyancing judge, whose 14 INTIlOnUCTION. court would form a part of the Suprorao Court under the Judicature Act, and bo cliart^'od with the duty of rcgiHtoring titkis. But I take the Laud Ollice aH it fltandH, and the rcf^istrar at the liead of that oflico will be the registrar under tluH new Jiill. He will act under the Supreme Court of Judicature, or under wliatever judj^'o of that court to whom the duty may bo assigned of dealing with any ques- tion which may be referred to the court under the measure which I am about to introduce." Both the I^ills of 187JJ and 1874 contained clauses for making registration compulsory upon the next sale of the fee simple of land after a prescribed period, and also con- tingent provisions for the establishment of local registries. Thotigh the Bill of 1874 was necessarily dropped, the Lord Chancellor succeeded that year in passing two Acts tending greatly to facilitate the proof of title to and the transfer of land. The first Act was the " Ileal Property Limitation Act, 1874." In principle it was the same as the Bill on the like subject introduced by Lord Selborne in 1873, but the periods of twelve years and six years were adopted in the Act, instead of ten years and live years as proposed by Lord Selborne, as the limitations to the bring- ing of actions in respect of real property which were fixed by 3 it 4 Will. 4, c. 27, at twenty and ten years respectively, and the limitation in respect of successive claims or disabi- lities was fixed at thirty years. This Act, however, does not come into operation until the 1st of January, 1879, nor does it in the least affect the provisions of the 25th and 26th sections of 3 & 4 Will. 4, c. 27, under which, subject to the rights of purchasers for value, the periods of limita- tion do not apply at all as between trustee and cestui que trust, and under which in cases of concealed fraud, the time only begins to run from the discovery of the fraud (see also Judicature Act, 187B. soouon 25 (2) and Petre v. Petre, 1 Drewry, 393) ^ ' <}'• Act referred to was the " Vendor and Purchi. : * .., i;-7 ' ' (37 & 38 Vict. c. 78), the scheme USi^i INTIIODUCTION. 16 of which, Lord Selbouriu' oljsorvcd, wiiH (|uito new, and belon(:;;od alto<:;etht'r to the Lord ChancoUor (Lord CiiiruH). This Act subHtitutoH forty yoarn for nixty years as th(3 root of title in ordinary cases in an open contract between vendor and purcliaser, thus ninkin<,' a title dcnhiced for forty years a valid inarketai)le title, or such a title as a Court of E(juity would force upon an unwilliiif; purchaser. It also provides that recitals in deeds or documents twenty years old shall be sulVicient evidence of the nuitters recited therein. Amongst other useful provisions in the Act is one which has already been extensively adopted, and has iifforded great relief in cases of disputes on sales, that of enabling either the vendor or purchaser at any time to apply in a summary way to a Judge in Chambers and obtain his deci- sion on any requisitions or objections arising on title, or on any claims for compensation, or any other question arising out of or connected with, but not impugning, the contract, the costs being left to the discretion of the judge. In introducing the present Act, on the 9th of Febriiary, 1875, the Lord Chancellor stated in elTi'ct that it, to a great extent, proceeded on the same principle as tlio Transfer of Land Bill, 1874, thougli the arrangement of that ]3ill had been considerably modified in that then before the House, which, like the Bill of of 1859, proposed to make fh'st regis- tration altogether voluntary, and did not contain the compulsory provisions of the Bills of 1873 and 1874. As regards the drafting of the Bill, it had been greatly simpli- fied. The new Bill, in fact, had been entirely redrawn and settled by the same skilful hand that drafted the original Bill of 1859, and Sir Henry Thring, had evidently per- formed a congenial office in remodelling the Bill on the lines of the Lord Chancellor's original scheme, to which, on every occasion since its introduction in 1859, his Lord- ship had shown a decided preference. The Bill accord- ingly proposed to establish in eftect, though not in name, a Landed Estates Court, of which the registrar should have \ I 10 INTUODUCTION. powrr to oxamitK; titles, to hoar and dotcrmino olijcctionfl, and to Hinninon and t-xainiiio witnoHSOH ; atid that the pdid on the first certificate, of title ffrnntcd under this Act in respect of anif land, in addition to all other fees, a sum •equal to one-fourth of one per cent of the vtless heen adojjted had our lo^^dslators not i)eon such slavish co|)yists of Mnj^lish lei^'is- lation. A possessory cerlilicate will not obviate the neces- sity for soarchin)^ the title prior to the time of re^'isterini; the certificate ; but it will jjrevent the formation of further links in the (dmin of title, and will f^'radually do away with the evils which are rapidly comin;^ upon us here, but which havo been fully developcnl in the (Jity of New York. A. recent writer on tho subject says : — " Lately the Jumel property was cut up iiito 1,888 pieces or parcels of real estate, and sold at i)artition sale. There appetirs to havo been about three hundred purcliasers at that sale, and no doubt each buyer, befoi'o he paid his UKjiiL'y, carefully employed a <^ood lawyer to examine the title to the lot or plot that he had bou<,dit ; so that tliree hundred lawyers, each of them carefully examined, and went through the same work, viz., the old deeds and niort- fj;ages and records affecting the whole property (for as it had never been cut up before each bad to examine the title of the whole, no matter how small his parcel), and each of them searched the same volumes of long lists of names, and picked out from the OjijOO volumes of deeds and mort- gages in the New York Registrar's ofiice the same big, dusty volumes of writing, and lifted them down and looked them through — in all 300 times, the very same labouv. 18 INTliOUUCTlON. » I •' Evidontly, 200 timoR tliiit labour waH thrown away — (IniKi over and over a^^aitj iiHelcsHly. " And the (.•lii'iitH, tliOH(! hiiytrH, tof^'cthcr, paid MOO fees to tlutsc lawycrH (wlio each eunied his money), hut evi(h'ntly *21>0 of those focH were for repetitions of tlie very Hamo work. " JJy and l)y, twenty yearH from now, instead of only :{00 owners of those Jumel i)h)ts, the wlioit' I ,!{H5J lots will 1)0 Hold and huilt upon, and \,\W,\ new purchaserH will a^Miin ])ay 1,!)H!{ lawyers 1,5)8!} fees for examining,' that same Jumel title, only the fees will be iarj^'er, for there will, by that time (at the present rate of <,'rowth, and unless a remedy is soon applied), be fully 10,000 hi^' folio volumes in the new Hall of lU'eords, whieh the Legislature has just authorized to bo huilt in the city, and the whole 1,38:$ fees will bo for more repetitions of labour, ho far as the wholo Jumel estate title is concerned, and will bo practically wasted. " Not only that, but to-day, in examining that title for a purchaser, his lawyer carefully puts in ofticial searches. He makes a requisition on the Jicf^'istrar for all deeds, con- veyances, nu>rtjj;ages and instruinents in writing on record in luH ofVice atVecting tlu; parcel whose title he is examining;, and, of course, the liegistrar carefully returns on his search all the old deeds, etc., affecting the whole })roperty — because they ail'ect the parcel— and he charges and gets by law live cents for each year for each name searched against for deeds, and live cents per year per mime for mortgages. Altogether, say $20 is paid by each purchaser to the Begistrar for those searches ; but as there were 800 pur- chasers, and they put in 300 searches, the llegistrar gets 300 times $20 for the same work ; and twenty years hence 1,383 purchasers will again pay the then Eegistrar 1,383 times $20, or more, for a search showing those very same facts. INTHODl'CTION. 19 ••Tins sort of tliiuR is daily ropoatod, year in and year out, in this city, ovor the wliolo of itM Hurfaco. " And tlio Hjunc thin^^ liapiu.'ns in ri'j^ard to loanH on bond and mortj,'aj,M'. Kvrry man who tliUH hndH money niUHt liavc tho title examined, and very properly ho, and the borrower Iuih to pay for it — the sanio old Hcarcdies againHt the eamc! old namcH — and pay the Hame t)ld fees. " Tho tax which the real cHtate of Now York city thus annually pnyH, amountH to more; than one per cent, of tho real valiu' of the property Hold and mort;,'a^ed ; and it in safe to Hay that at leant one-half of this heavy burden is the result of uHeleKs repetition, of the want of a good system in reHpoiiHible hands, and in thrown away." No tariff of feoH has yet been made under the Act, and Holici- tors will have to depend on the provision in section I'ilJ, "all other feen and costn shall be the same as nearly as may be as are payable in case of like proceedini^s in tlie Hi«h Court." As to the workinj,' of the Act it is dilliciilt, if not impos- sible to tell what will be the result. It will i)robably be found that tho process of brin;^Mnj,' the lands under this Act will be slow, and that it will be better for the country in the long run if the plan advocated by Lord Helborne in England were adoi)ted here, viz., compelling pro[)erty owners, when making transfers hereafter, to bring their lands under th^' new system for the future as " llecorded Possessors." This they should be able to d(j at a trilling expense, and thus gradually the whole of tlui lands of the country would be brought under the Act witiiout any trouble- or confusion, or interference with the vested rights of Eegistrars or other otticials. In conclusion, we must refer to tho services of two gentlemen, who have especially been instnnnental in the introduction of the Torrens system into this country, viz., Mr. George S. Holmested, the Referee of Titles of the Court of Chancery, and Mr. John Herbert Mason, the r ' 20 INTIlOIH't'TlON. PrcHiih'nt of tlio ('imiidii Tiiiinl Tiiiw AnuMidnunt Ahmo- ciatiiiu aixl >fiiiiaK< r of tlii> Ciiimdit I'mniuinit riOiin iukI Siiviii^H Coiiipimy. Tlicsf f^'ciitU'tnt'ii cacli in tluir rcMpc'ctivi) pinitioiis, liiivti Imd tlu' evils of ili»' [HN'hi'hI h\h- trill brou^^lit fully before! tlieiu. ^^r. lioliiustiMl firrtt iiitt'odiieod the iiiiittei' to the ptihlie in an ai'tii'K> in the (Jiintididn Mnntlilif maj,'a/iiie of April, lM7(i. He winds up his articlo " hy tho hope tliat the Hcheine whieh In- tiiens atlvocated would receive the iipprohation of tlie lej^'al pro- fcHsion insteud of its opposition. " Indeed," lie continued, " it is to a nieniher of the le^,'al prot'ession, and one wht)HO husiiiess lieH chielly in conveyancing, and who, ho far as [)Ocuniary conHiderations are coiicermMl, is lari^idy inter- ested in niaintainin;^ thin;.;H us they are, that the writov is iiidel)ted for having' his attention forcihly drawn, not only to tliu evil, hut also the remedy whiuh has heun riUfj;(.';eHtod.'* Mr. Miison viewing the inaltor from a layman's stand- point, delivered a K'cLiH'e before the (.'anadian Institute in 1H.S;J, which was i)rinted and iurj^ely circulated and has been the means of makin;^ the system wiilely known ami its ailvauta^'os fully ai)[)reciaLod. TiiL Land Titf.ks Act. 1885 or Till': I'KOX IN'CE OF ONTARIO. ASHKNTKI) TO nOllI MAIUir, iNHf). 48 Vict. C\v. 22. An Act to simplify TitK-s rind to facilit.itc the Tninsfor ()( Land. NoTK — The unilermentioiieil are some of the statutes on thn same sub- ject, and si)me of the bills which have been introiluceil, but have not yet become law. IMPHKIAf-. 25 it 26 Vict. cap. 53 (I^i.rd Wcstbiiry's Act, 1862.) The Land Transfer Act, 1875 (Lord Cairns' Act), j8 & 39 Vict. cap. 87. It is upon Lord Cairn's Act that the present Act is mainly foundetl. CANADIAN. Mr. Mills' proposed Bill, which was to have been entitled. The Terri- tories Real Property Act, J878. Mr. McCarthy's proposed Hill, which was to have been entitled, The Territories Hc'Kistration of Titles Act of 18H3. Mr. McCarthy's proposed Hill, which was to have been entitled, The Registration of Titles Act, 1884. Sir Alex. Campbell's Hill, 1885. T 22 THE PROVINCE OF ONTARIO. ONTARIO. The Quieting Titles Act (1865), 29 Vict. cap. 25 ; R. S. O., cap, no. BRITISH COLUMBIA. The Land Registry Ordinance, 1870, Con. Stat. cap. 102. SOUTH AUSTRAF.IA. The Real Property Act of 1861. The Real Property Act Amendment Act, 1869. The Real Property Act Amendment Act of 1878. WESTERN AUSTRALIA. The Transfer of Land Act, 1874. Amending Acts of 1878, iSycj. i!j8o. VICTORIA. The Transfer of Land Statute, 1866. The Real Property Act, 1862. NEW SOUTH WALES. The Real Property Act, (1862). Amendment Act, 1873. Amendment Act, 1878. QUEENSLAND. The Real Property Act, i86r. The Real Property Act of 1877. TASMANIA. ftatutes of 1863, 18G7 and 1878. NEW ZEALAND. Land Transfer Act, 1870. Amending Acts, 1871, 1874, 1876, 1880. FIJI. Local Ordinance. Most r>f the ab'>ve colonial statutes, other th-m the Canadian, are con- tained in the returns on Registration of Title in Australian and other British Colonies, printed by order of the English House of Commons in 1872 and 1881. THE LAND TITLKS ACT, 1885. 28 HKH ^rAJK8TY, by and with the advioo and cnnsont of tlio Loj^islative Assombly of the Province of Ontario, enacts as follows : — PIlELnEINARY. Short title. I. This Act may be cited aa the "Land Tith's^ Act, 1885." In Manitoba their Act is cited as " The Real Property Act of 1885." In Vctoria, Australia, the Act umlur which the Torrens Systom is administered is cited as the " Transfer of Land Statute, " repealing the Act, and amending Acts formerly cited as " The Real Property Act." It was passed on the ist June, 18O6. No. 301. * " In 15ritish Columbia a system for the Registration of Titles has been in operation since the ist day of June, 1S70, and in that section known as Vancouver Island, its principles have been in force since the ibtli of January, 1S61. If time therefore can be considered as an essential test of the value of principles, however m vel at first, contained in any public enactment, the registration system has undoubtedly had the benefit of that test to an extent seldom exfierienced in the life of a Colonial Law. Its leatliuR principles, as contained in the oiiginal Act of iSfio, remain unaltered, and ikj amendments have been made beyond the alteration of a few of its working details, by tlie amending Act of 187J. With respect to the Island of Vancouver, where land is of greater value than in any other part of the I'rovince, and more particularly with regaril to th.: city and district of Victoria, wiiich contains at least one-fourth of the total population of the Province, and whore, f^mparatively speaking, a con- siderable amount of capital is accumulated and invested, the eflects of the system have been undoubtedly beneficial : — ist. The title to real property has been greatly simplified, without radical changes in the general law. 2nd. Stability of title, with .safety to purchasers and mortgagees has been secured. 3rd. The ownership of property either in town or country, is shown by the register at a glance, and whether incumbered or not. 4th. It increases the saleable value of property. * Official Report of the System of Land Registration in force in the Provineo of British Columbia. H. W. .Vikman, Registrar-Oeneral IJlue Book, Imp. House of Commons. Oraered, May, 1881. if i^-amn 24 'IIIK I'UOVINCK OF ONTAUIO. 5th. It enables both vendors and purcha .ers to accurately ascertain the expenses of carryini; out any sale or transfer. 6th. It jirntccts trusts, estates, and beneficiaries 7th. It prevents frauds, ami piotects purchasers and niortj^aKees from those rnisrepres(Mitati()ns common in all countries among a certain class of legal practitioners and land a>?etits. Sth. It has secured the chief advantages of the old systi-m of registra- tion of deeds, (of which notice is the most important priiicipk'), and has operate 1 so as to almost entirely dispense ivith the imu'stij^nitioii of prior title. Loins on mortgage are effectt'd, and transfers of the fee are inaile with as much ease as the transfer of bank stock is made in Kngland— a search of from five to ten miimtes being all that is necessary t(j disclose the state of any regi.Uered title ; retrospective iuvestig.ition of title is se! iom made, the registra'.s certificate of title, (though it does not preclude retrospective investigation), being generally accepted as sutlicient evidence of a good marketable title." The present Act of the Legislature of Ontario is founded on the Imperial Act of 38 & 39 Vict. cap. 87. It is exceedingly doubtful, whether the .\ct of Victoria or South .\ustralia would not have been a betti:r basis. In the debates on the Land Titles and Transfer Bills of 1873 and 1874, in the House of Lords, speeches were made by the late and present Lord Char -(.'llors, which throw considerable light upon the general principles on whudi the Act of 1875 (in common with those bills) is tounorne may serve to disabuse the mind of the public of the very common notion that the law of real property can and ought to be merReil or swallowed up in the law of jjersonal property. " Distinctions exist in the (very) nature of tile several tilings." On the introduction of tlie Laml Tithes and Transfer liill of 1874, the Lord Chancellor (Lord Cairnsl thus explaiiidi ( / ) the dittert'uce between a registry of title to hind and a registry of dee-is and assurances of land, and its bearin.i,' on the failure of Lord Westbury's Land Registry Act (25 & 26 \'ict. cap. 3j): "The phrase, 'registry of title to land,' is very frequently used without adecjuatc precisio 1 as to (its) meaning, and there- fore I inust ask you to allow me in a few sentences to explain what it really is ; and I can best so do by asking you to note the difference between a r..';.,'istry of the title to land and a registry of deeds and assur- ances of land. The latter may be thus statoil : Every deed connected with property is placed upon the register ; it is either transcribed at length, or described in a succinct and formal manner, and the consefjuencj is that the register becomes an iiistoricnl lutrrntij'c of all the deeds 0/ every kind connected with the property. It is obvious that a register of that kind may add security to the title to land, but it by no means facilitates the transfer of land. On the contrary, it has tjuite the opposite effect, because a mass of deeds is placed on the register, and if a person purchases l.ind, ;!' (e) Each part of the land, in short, has a prctiiim affcctionis of its own. (/) Hansard's Parliamentary Debates, vol. ccxviii. p. 319 (March 26th, 1874). .:0 26 THE PUOVINCK OF ONTAUIO. ho has not only to ask for an abstract of the title, anJ examinci the original deeds, but he has also to ^o to the register, and see that the entries correspond with the deeds themselves. " We now come to the rej^istry of title to land, fn the ra^istry you will have no dicds whatever. You will have on the register a description of the property — where it is -how it is called — and, as far as possible, its boundaries ; but beyond those particulars you will have nothing except the name of tiie proprietor of the land. . . . The late L.ord W'estbury, as Lord Chancellor, introduced a bill on this subject, which was subsequently Carrie 1 through parliament. It was based on the principle of a ' Registry of Title to Land, so far as the term (was coiicernetl), but it was not a measure for the registry of (title to) land in the sense in which I have endeavoured to explain it. It was a registry, which, under the name of a registry of land, was a registry of deeds ; and to my mintl, at least, it was a registry of deeds of the worst kiml, because it was a system under which the person registering had the power to place on the register, not the deeds themselves, but a statement of what he conceived to be the effect of the particular deeds. In the House of (Commons I took the liberty of object- ing to that system on two grounds. The first was on the ground I have just stated ; the second was that the bill provided that in the registration of estate the boundaries of the estate should be settled irrevocabl)' by a judicial decision, the probable consequence of which would be disputes as to boundaries among the adjacent owners. However, the bill passed into law. A number of proprietors brought in their properties for registration under that Act ; but the number was so small as compared with the aggre- gate of proprietors of land in this country, that the Act is generally regarded as a failure. . . . The Royal Comrnissicm appointed to inquire into the working of the Act of iS()2 states what, in the minds of the Com- missioners, had been the causes of its failure. 1 tliink the most conspi- cuous are the causes which I have already stated —its mode of dealing with bountlaries, and its want of simplicity in placing what I may call the title deeds on the register." In the House of Commons the discussion on the bill of 1875 was, by arrangement, taken on going into committee on the 4tli of June. On the irder of the day for going into committee on the bill being read, the Attorney-Cieneral said (fr) that, in moving List year the second reading of a measure of a similar character to the present one, he indicated what appeared to him to be the necessity of legislation on that subject, the object for which such legislation was desirable, and the means by which it was proposed to accomplish that object. He did not suggest that the present bill would effect any very great saving of e.\pense in first estab- lishing the absolute title of a person to property. The real advantage of having a register of titles was th t when a property had once been placed on the register, it could be subsequently dealt with at a trilling cost and ig) Times, Saturday, June 5th, 1875, P'arliamentary Report. THE LAND TITIiES ACT, 1885. 27 trouble (/<). Tins hill was an Inmost attempt to deal with an important qufstion ; and if passed into law it would introduce a hfucficiid chan(;o into the moilu of dealiiiK' with land, and the title under which it was held. The debate on Roin^,' into committee on the bill was suspended by the rules of the House of Comtnons, while Mr. (ioldney was s|ieakinK in favour of the measure. It was resumet pie register of title such as was proposed by this bill froiri being fi.in €■• ir.t *r< a very considerable extent would simplify the transfer of land . >.as proposed by this bill ? It was said to be not worth while to put a title on the register. Hut it would get rid to a great extent of the L:;iicn a of furnishing an abstract of title, and the long ami cumbrous proc-iditi,, con., .^-d thennvith. Great simpliiication of title for the transfer of land wai p.-'ov! led for; and there were great advantages connected with thu: registering even of a qualified or possessory title. The advisers of the landed gentry, so far from hindering the operation of the measure, would be the first to recom- mend It. fie believed much advantage was to be expected from the work- ing of the measure, and that it would prove a most useful stepping-stone to further reforms in relation to the land question as a whole. Commencement of Act. 2. (1) This Act shall come into operation on such day as the Lieutenant-Governor in Council shall, hy proclamation, appoint, and shall apply to the City of Toronto and County of York only, until the Legislature otherwise provides. (2) Any orders or rules, and any appointment to any ofitice, may be made under this Act at any time after the passing thereof, but shall not take effect until the com- mencement of this Act. Imp. 88 & 39 V. c. 87, s. 3. (3) This said day named in the said proclamation, is the day referred to in this Act as the commencement thereof. Tirr; f-and titm-.s aci, IHH,'). •2!) Tho proclamation was issutvl, and ajipointcil UVvlnt'sday, tl'o first ilay of July, A.D. iS.S^, for the coitiini'Hceini:nt ol' the Act. In the Imperial Act 38 & jij Vict. cap. 87, the hrnvfits of tin; Act arc confined to England, bccausti both Scotland and Ireland had systems of their own ; the foimcr workiim nn Ut an .Vet 10 amend tin- law relating to Land Kights and Conveyancing, and to f.ioilitate tin; transfoi of land in Scotland— tho latter under the f.anded Estates Court ol* Ireland, erected by Lonl Westbnry in 185S. The statistical returns show that durin.i; the nine years over v.iiich the commission extendi;d, .(,.(13 petitions \V(;re presented for the sides cf estates, of which number about ono-third were presented by the owners and the other two-thirds by persons haviii,' incnmbiances. These ptUitions resulted in the sale of about ;(,noo estates in nearly q.ooo lots, varying in size from the sin.ill farm to a territ !)■ of icj.:,ooo acres. The ]Hirchase moneys of these i;st..ti's amounted in all to over £2^,QO(),oai) stcrHn;^. The lands sold were vest.xl in their respective purcliasers by means of S.jt).) statutory conveyances, which conferred on the tjrantees named in them an indefeasible parliamiuitary tiUe. Mr. Denny llrlin, in his useful note nn " Land Transfer in Ireland," prefixed to the treatise l)y hi'nsdl and Mr. Key on I-ord Westbury'-; Land Registry Act, thus comments on th.; success 01 tlie Irish Landed l'".stritt;s Court, into which the Irish IneuniluMed b'staler. Commission was con- verted in 183S. " Th'; resnit of the Iri:.li system inuioubtediy is th.at land may be bought and sold with facility anil s;ifety ; and it is an important fact that the owners of the land generally, and their legal advisers, prefer effecting sales and purchases through the instrumentality of the court ; and few estates of any magnitude arc now sold or transferred in any other manner." The reader who wishes to obtain accurate and interesting information respecting the Australian system of State conveyancing, is referred to n valuable return to an Address of the House of Commons, containing replies from the (Jovernors of South Australia, Queonsl.uid, Ni!\v South Wales, Victoria ami Tasmania, to a circular des;'atch of the Secretary of State for the Colonies, calling for repiirts from tliem on the working rui'i progress of the system of conveyancing by registration of title in opera- tion in those colonies. From this return it appe.irs that the land in New South Wales registered under the local Land Transfer Act, at the end of 1S69, reached 1,151,558 acres, tin; estimated value being /j,oj4,goj. In Tasmania, r,go8 certificates of title and i.fj.js grants, including 4,7,50 acres of town allotments and 302,103 acres of country lands, of the aggregate value of ^750,894 ; also 644 mortgages securing /275,6j3 : also 5f)3 trans- fers, conveying 903 acres of town and 41,834 acres of country lands, for the sum of /i34,648 ; also 1C19 releases of mortgages, involving /76,554 ; also 24 assignments of mortgages, involving /■i3,i86 ; and 43 leases of 70 acres of town and 10,319 acres of country land were legistered up to the ;!:ii ,# TT !r 80 THK I'llOVINCK OF ONTAUIO. I9t of July, 1^70. In Soiitli Australia thi; total an:a re^'istured under the local Lanil Transfer Act, (in the .jist of Ucciiniljcr, iHdg, was i, 70.1,887 ncrcH, (ixi:lusive ol 244,962 acres sold in the northern territory, leaving undi.T the old system only i,i')3.o,)0 acres. As to power to make rules, viiii- hv.c. ho, etc.; Master of Titles, vitif sec. 4. (3) Tho first day of July, 18,85, i** 'he day fixed for the conimcnc-ement of the Act. J. Ci. Scott, Ksq., was ;ippointc(l Master of Titles. No tariff of fees has been formulated hy the Judnes. Iiifcri>ri'((iti(>n. it. In this Act, unloH.s thero in Hoiiiotliiii}^ incoiiHiHtcnt in till! context, — "Court" incnns tlio ]l) TITLES ACT, INHfi. 81 I'yVHT I. Kntky oi' liAN'i) ON Hkciistku OF Titm:. Land liniitftrii I\HtithHn}inL 4, A liiiiid Rcf^istry hIiiiU !)(■ cHtabliHlicd, tuid the biiKi- nt'HS tlitrcof shall In; coiiductccl by an olViccr to ho called tho MftHter of Titlos, who hIihII !)(• a l)uiriHt('r of not Ichh than ten yciars' standhi'^ at the Har of Ontario, and shall \)v iii)[)ointc'd hy tho Li(Mit«!nant-(jl()Vornor by commission under tiic j^rcat Hcal of the Province. Imp. HH iV \]\) V. 0. H7, HH. r>, IOC. A F-,uiil Kc|>istry. This is tlut first " [.and Kc^istry " uIuti- tlu; titli; iirisscs by rci;isti;i- lion. Our former syst(;iii was a rucortl of iDStniiii' nts, tlic title passiiiK on oxeciitii)!! of the instrument. I'nrmer Kci{istry of Documents. No svstein nf ret,'is'i, \. i.\ Vict. cap. (13. f,'ave to the rcnistiatiou of ju l^'nient the same v.ilidity as the dock(;tin^' woidd !iave produced. Different other Acts were passed, and at the time of the Consolidation of the Statutes in 1859, all were consolidated by 8<2 THK I'llOVINCK or ONTAKIO. (lispoiisns svilli tht! iKicoHsity ot tho huftliarrl of ;i marriod woman Ijccom- iiik,' a party to a ilisrharn! of iri'iftgasjo and ottKirs by ,|S Vict. cap. jj, (1HH5), which aro as fullowH ; Sec. t i-nacts— iiurti )ii f\\ i>{ " The Ki^istrv Act" (K. S. O,, cap. 1 1 1) in hereby ropcaled, niul the followin^j is substituted : 63. ICvrry v.'ill shall bo ronislcred at full lun^ih by tho iirodui.'ti.iu of thn ori),'inai will aiid tlio doposit of a copy Ihernof, with an allid.ivit sw.'rn to by line ot" tlio witnesses tn the will, proving; llio duo (!.\c-uti'in tlifroof liy thu testator, ur by the urnductinn of probate or It.'ttcrs of adMiini'.ir.itioii with tin: will annexed, or ;in 1 xemplitication thereof under the seal of any court in this Province, or in (Ir-.iat Hritain and Irdan I, or in any British province, e.ilony or possession, or in .any fort!i'.;ii country having jurisdic- tioti tlurin, and by tlin doposit of a copy of such probate, letters of jidininistr.ition or exemplification, with an attulavit verityinj,; such copy. Sec. 2 provides, repealing,' H5 of K. S. ()., cap. iir, and substituiinj,' a:i follows : (i) When any incorporated town or vill.iKc, or village not incorporated, comprise.^ 'iiffi^rcnt parcels of land owned at the ori|.;inal division thereof by (lillcrcnt pcrscjiis. rovl the same were not jointly surveyed, and oni; entire plan of such survey made and filed in accoril.inco with section 82 of this .Act, the .Municipd ("oiincil of the township within which such uniii- corpji.ue 1 vill.i^c is situ.ited, oi- of such incorjioratcd town or village, shall, upon the written lequist u( the inspector, or of any person interested, addressed lo the Clerk of the .Muiiicip.dily, immeiliately cause a pLin of sue!) town or viila^'e to be irade upon the scale pr.)vidcd for un.ler this Act, and to be registered in the rc^^istrar's oftice of the county within which such municipality lies, which map or plan shall have endorsed thereon the certihcatesof the clerk and head of the municip.ality and the survdor, that the same is prepared according to the directions of such municipality, and in accordance with this Act, and to the saitl map or plan the C(uporate soul of the municipality shall be attachetl. (2) The e.'cpense attending the.tjottiu^ up rmd depositing of .^ucli map or plan shall be ji.iid out of the general fund;; of the municipality, except in the cases of unincorpor.itcd villages, where tiii; same shall be paid by :i special rate to be levied by asses.smcnt on all rateable property comprised in the unincorporated village, as descrii)ed by metes and bounds in a by-law to be passed by the municipality for the purpose of levying such rate ; and in case of the refusal of such municipality to comply with all the requirements of this section, within six months next after being required in manner aforesaid so to do, such municipality shall incur the same penalty, ami the same shall be recoverable in the same manner as provitled in sec. 82 of this Act (K. S. O., cap. in.) (3) When land in a township has been, or shall hereafter be sold under surveys or subdivisions made in a manner which so differs from that in Tilt; I, AND Tiri.KH ACT, IHHfi. 88 which iuch land was sut vi^ytvl or Krint'"! I>v tli" ("rowii, that thr pnrcel told cannot 1)0 easily i(l«!titifioil, ami tin; map or plan has not l)ci:n n-Kih- tercil unilor thisur any other Act in that behalf, thi! Coum il of tlui Tswn- ship may, at tHe written roipiest of tlu; inspurtor, or of any person jntori stcd, cause a plan of any such land to bo made and renistirnd in tho saiMi' iiianiitr, and with tin; s.irno ctlei t as in the; case of an unincf)rporated villane ; ami the exjxinses attendin),' the Rcltinn np and filinR of hucIi map or plan shall be; paid by a spfcial rate to be Itjvied by iisscssniciit "ii tlu- lands i.iinprisi;d in said map of (■'an, asdescrilud in .i bydaw to be |>assed by till! Council for the pur|)oso of levying such rate ; and the mnnicipality shall have the like retiiediis for the recovery uf such last mentioned expenses as it has fur comiu^Uin); paymunl of taxt s, (4) Nothing in this section contained shall be dcenu^d or construed as rclievinj^ any person from any liabdity, duty, oblij,';ition, or penalty proviiled or imposeil by or under any of the provisions of section Hi uf this Act, (K. 8. O., cap. 111.) J. Any affidavit made under the authority of the Rei;istry Act may within this I'rovince, bo made before a Notary I'ublic. I ! 1 Appliciit'KDi for )rriinfr(iti()ii irith AhHoliih' or PoHsessoi^ Title. 5. On and iit'tcr the commtnicomont of tin's Act, any person ontitletl for his own hcuoiit ut hiw or in equity to an estate in fee siraplo in land, whether suhject or not to incumbrances, or any person capable of disposing for his own benefit by way of sale of an estate in fee simple in land, whether subject or not to incumiirances, may apply to the Master of Titles to be registered under this Act, or to have rej^istered in his stead any nominee or nominees, as owner or owners of such liuid, with an Absolute title, or with a Possessory title only, as tiie case may l)e. Imp. 38 & 39 V. c. 87, s. 5 ; 11. S. 0., c. 110, s. 2. Application for registration with .ibsolute or possessory title. Same as second and third part of sec. 5, Imp. Statute. " Fee Simple" means beneficial interest in fee. Vide Unlin & Key, p. 3 ; Cough's Manual of Practice of the Office of Land Kegis^try, p. 67. But see Ayrton Practise of Land Act, p. 149. " Person " includes a corporation. Vide sec. 3. 3 r- 84 Tin; I'lioviNi r. 01' oNT.vuio. Mf " M.-iy apply " See jHili Kulis Must lie hiKiu' 1 liy tlu- applu'.uU or hid solicitor. It is iilrr>ni{ly rei nininnmltMl Imili liy Mr llnli and Mr. <'hnrl>>y, ttiat tliu RiTvicu-s of a Noliiitor aci|iiaiiit<:(l uitli tliu \vi;reat trouble, delay and ex|)«nii«), w)iich hai liith' rto attendt'd tlm \sorkinn of tlio fjiiieting of Titlon Act must Iw dono away with if this Act ever attnin* rucccsm. It iH not Rt all nocvimary that " ovory iiliKht offence nhnuid bear its coniiMuiit, " and that iiinuiii<;rabli> stiiiiilihnu blocki Mhmdd Lu tiirovvn in tho way of each appli. ant. .Ml that either Mr. a'Heckctt, or tho Australian Convoyancum require, is such a title an wouKl now bo paHMed by a careful qualili d solicitor — such ns the H»licituri of the Loan Companies in Ontari i, Hy the ist (lencral Rule, "thu application for a first roRistratifin of land under this Act, shall state the nature of the interest of the applicant .and a R(""Tal description in concise terms, of tlie land; it shall also state whe- ther tho r(!«istr,iti(in appliiMl for, is with an Absolute, a (Jualilied, or a Possessory Titl-;. Vide Rules i, 3,4. I'/r/f I-'orm i, i. Same as En^jlish Kulc. As to description, as in luiKlrsh Rules, 2 and j, viilv Rule .\g. As to this section, Mr. Gouxh interprets it to moan, " persons having such a power of appointment of tho fee as they niij;ht le^jally execute for their own beiiofit. Before applying formally, search should be mado on the Register for Cdiitioiis against rcKistratinn. The Kn(;lish Act reads, "or to have registered in his stead any nominee or nominees not excec'ding the priiscnbed inimber, as proprietor or pro- prietors of such freehold lanil with an absolute Title, or with a possessory Title only." As to the "prescribed number," Hee Oeneral Rule 37, where tho prescribed number is four. The Ontario Statute changes the \vordin>,'. Mr. rii.'irlcy's note is as follows :- " Proprietor of Land." " It will be observed that the person applies to be registered, as pro- prietor not of an estate in the land, but of tlio land. An owner or proprie- tor of the fee simple, is not the same as an owner or proprietor of the land. It involves all the difference between alhdiinii and ftudiim." Vide Blackstone's Commentaries.* *I'\ihIiiiii or fee, s,-\vs Sir \Vm. lUackstone. i.s tliat whiidi is liel 1 of sitne superior, on con iilioii of rendering him sc^rvice, in which superior tlie ul- timate property of the land resides. Allodium is a mans own land whicli he possesses merely in his own right, without ouing any rent or service to any superior. This alladiul property no subject in iuigi.ind li is, it being a received and imw undeniable principle in the law, that all tlie laiul.> in England are hidden mediately or immediately of the King. The King only hath absuliitiiin <7 dinchtin doiiiiiiiitiii. THK LAND TITIiKH ACT, iMM.'*. 8ft Tho Ontario Act iiNru the wnrih, /it . vmu i or owfjom oi »iuhlanil.' It iicernii(.'M»l-itiiic< unlv mi'ii h'>| to xivtt to thu " iiotni- nco' no ((renter titU; than thu iiwminor |»> ' I u)>l nil lint nutninor coulU not posiieM nn itlloiliiil titio, thu hlfihcNt woulil Ixi an vMuiv in fee. Mow Til thi- o|i| feiiiial prini'i|ilcsnrt! applnaliliMo < )niiirin, vvoiitd |)c nn intcretttiuK tMKiuiry. It wn* •> loKtcitI m-iiikiui! iini ipli-s that aliens wuro not nlluwetl to hold lanl in feo, it* they cotiUI hnnlly lt« mii|< posi!>l to Im Rubjecli and linblo to Horviie, when c iUm.I u|>oti by th« So\v.>- reJKM. Ill 'trn civilization entiroly iKnorcil logical tto<|iicncfM, for N\e Tind a Stat itnittm^; nlienii to hold land. I'erhapiian alien woulil bo an nltoilialitt nnd hold of no fee. I'rartji dly it would tnako no diflorcnce. In Hansard's I'liliatnent.iry iKbafcs, New Soriei, vol. aiM, p. 323, Lord Cairns when introduiinK his I. an' I Titiefi and TranHfer Hill, 1H74, nptAe ai follows with rtKard to " Absuluto Title, and " rosscwiory Title." ".\b8v>luto title — poHscsMory title.' " Under this bdl I propose," iiaid Lonl L'airns, C, when introilucinn his Land Titles and Transfer Hill, 1874, "that there may be a rcKistry of three kimlit of title- namely, n title absolute or indefeasible; a titlu limited, that is to say, a title cirtitied to be good from a partit iil.ir dati-, but not beyond it ; and a •.imple title of thi! proprietor in p. ssession, and allcsinn himself to be the owner. We slmuid th(Mi have a title certified to bu absolute, a till*! (crtitii^d for a liiiiiird ilate, niicl a title not (iitilied." The title " liiiiile( tli(^ application: v.o concur in the opinion that to make a judicial or quasi-judicial examination of the tillr .111 iiidisiicnsable pr.diminary to admission to the register would greatly nairow the benefits of registration. The expense .'done of the examination wouM exclude nearly all small properties, and tli^- trouble and expense combined would exclude m.any others. Defective titl-'s woiilil iieces.«arily be excludrd, and we do not see why a defect in the title to land anterior to the iiiti'odiiction of registration, need deprive the land of the benefit of an improved mode of transfer subs<'(iuently. W'c think that a rcgislrntion foiimhd un osten- sible ur pusscssury uti-iui'ship should be permitted in the lirst instance ? >il ■'-'> 3(5 THE PnOVINCK OF ONTARIO. In the meantime," added his Lordship, " the titles would he as j^ood at Last as they are at present ; every year would tend to bring nearer the time when the rej^ister alone would be suflicient to prove the title, and every transfer would be at least unattended with a considerable portion of the present expense." As to applications for the entry of restrictions, exceptions and conditions, see Rules 20, 31, 32. The subject matter of separate rej^istrations are : — 1. Freehold l^and (Sec, 5, 6). 2. Leasehold Land (Hec. 15). 3. Special Hereditaments (Sec. 84). 4. Mines, etc., when severed (Sec. 84). Besides those mentioned in Sec. '>, Section 71, provides that, " .Any trustee, mortga^'ee, or other person havinf» a power of .selhng land, may authorise the purchaser to make an application, etc., or may himself apply, etc., with the consent of the persons whose consent is required to tlie exer- ciseof his trust or power of sale." Section 72 provides for registration of part owners. Mr. Holt says : " The trust or power to sell, in order to support an application under section 71, it would seem, must be exercisable imme- diately, thouyh no present sale may be contemplated. A trustee or mortgagee cannot apply under this section to have a nominee registered as proprietor." ■' The consent of incumbrancers is not required to the application, but as section 74 provides that a person shall not be registered until he has satis- fied the registrar that the fact of such registration cannot be concealed from a purchaser or other person dealing with the land, and the easiest mode of doing this will be the production of the title deeds, or (in the ca.se of a Possessory Title), the last conveyance, for stamping or marking under the same section ; in any case where the deeds are in the possession of an incumbrancer, his consent to their production for the purpose of section 74, should be obtained in the first instance, besides which, where the title has to be proved, the deeds must of course be produced for the purpose of veri- fying the abstract. " In the case of an application by a purchaser, no conveyance from the vendor will be necessary to complete the purchase, as the transfer of the land will be completed by the purchaser's name being entered on the register as proprietor." Vide Gen, Rule i. " Where the application is for the registration of a nominee, or is made by a purchaser, the consent in writing of the nominee or his solicitor, or the vendor, or his solicitor, shall be left with the application." No Form of consent is embodied in the Act, but a convenient form would be. Appendix, Form A. I THK LAND TITLES ACT, 1885. 87 AppUcatiun Jnj Purchnser. ii. Any pcTKon who has contriictod to huy for liis own bLiKlit !iu estate in fee siniplt' in hind, whether suhject or not to incumbrances, may also apply as aforesaid, provided tln' vendor consents to the application. Imp. 38 .V 39 V. c. 87, s. 5. Substantially the same as sec. 5 of Imp. Stat. The above class of persons empowered to apply, corresponds to the 6th Class mentioned in section 4 of the Land Registry Act, 1802. I'idc I St General Rule. AppUcntion hy Crown. 7. Iler ^lajesty's Attorney-General for Canada, or Her ^Majesty's Attorney-General for Ontario, may apply in like manner in respect to the title of the Crown to any land ; and the practice and procedure upon the application shall be the same as in ordinary cases. Imp. 38 .^ 39 V. c. 87, s. 65 ; E. S. 0. e. 110, s. 4. This evidently must refer to lands which the Crown are acquiring, or have accjuired, as the title to lands not already patented by the Crown is such that it can hardly refer to them. Ecidence ichcrc dhsolutc title required. S. Where an absolute title is required, the applicant or his nominee shall not be ref^istered as owner of the fee simple until and unless the title is approved by the Master of Titles. Imp. 38 Ot 39 Y. c. 87, s. 0, This section corresponds with section 6 of the Imperial Act, the only difference being that section 10 of this Act forms part of section 6 of that Act. The proceedings to obtain an absolute, that is an indefeasible title under this Act will be much more easy and simple than those that were necessary for quieting of titles prior to the Vendors and Purchasers Act, R. S. O. cap. log. It being there enacted that — ■im 88 THE PROVINCE OF ONTARIO. " I. In the completion of any c. 7, <■>, 17. 18, 19, 20, and forms i, 2, 3, 4, 5, 6, 9. Whether publication will be necessary is for the Master of Titles to decide. Vide Rule g. .Australian Forms of Application will be found in Appendix. Estate of first riy/istered oicner with absolute title. !>. The fir.st registration of any person as owner of land (in this Act referred to as first registered owner) with an absolute title, shall vest in the person so registered an estate in fee simple in such land, together with all rights, privileges, and ai)pnrtenances bt^longing or appurtenant thereto, suliject as follows : (1) To the incumbrances, if any, entered on the register ; (2) To such liabilities, riglits and interests, if any, as are by this Act declared for the purposes of the Act not to be incumbrances, unless, under the provisions of this Act, the contrary is expressed on the register. (3) Where such first registered owner is not entitled for his own benefit to the land registered, then as between him and any persons claiming under him, to any unregistered estates, rights, interests or equities to which such persons r~ 40 THE I'UOVINC'K OF ONTAKIO. nuiy 1)0 entitled ; but froci from all other cstatoB uiul in- tfrests wliatHoever, including estatcH and interests of Her ]\rajesty, her heirs and succesHors, which are within the legislative jurisdiction of this Province. Imp. iW .V- 539 V. c. 87, s. 7. Substantially tlie sniiiL- ns Imperial Act — a portion of wliicli \sas taken from the Land Registry Act of iS(j2, defining under what circumstances an indcfeasibl: title shall arise. " Is not entit!i;d for liis own benefit," includes " nominees, trustees, or mort?4aKees, ref,'istered as first proprietors." Mr. Holt, KeRistration of Titles, 4O, considers the exiiressinn " not entitled for his own benefit" as extending; to every case where the first registered proprietor has by his own act placed himself in the position of a trustee or bound his interest in the land. The owner of land, altiiough out of possession, may bring his land under the Act and obtain a certificate which will enable him to bring ejectment against a person in adverse possession. Miii-phy V. Mltchcl. 4 \V. \V. & a' B. (L.) 13, and the apj^lication will not be stopped by an order under section 24 Victoria Act (similar to section 59 Ontario Act) at the instance of the person in possession. Ex parte Brown, 5 V. L. R. (L.) 5 a'B. 76, 1883. Evidence icherc iwasessory iitle required. 10. Where a Possessory title only is required, the appli- cant or his nominee may be registered as owner of the fee simple on giving such evidence of title, and serving such notices, if any, as may for the time being be prescribed. laip. 38 .^' 89 Y. c. 87, s. 6. Similar to .:nd clause in section 6 of Imperial Act. See Rules 2, 4. " The difference between an absolute title and a possessory title consists mainly in the slender evidence of title required in the case of the latter, as compared with that of the former." All that is required in the case of a possessory title is proof that the alleged ownership in fee simple is bona fide and not fictiticnis. The only formalities are the application (I^orm 4), the affidavit (Form 5), the deposit of the last conveyance and the muniments of title under Rule 4 and schedule. It is to be noticed that Rule 2 says " there shall be left in the office with the application an affidavit made by the applicant asd his solicitor." From this it would appear that the applicant must have a solicitor ; but the latter part of Rule 4 (3) says, " The said affidavit or deposition may, in a THK LAND TITLKH ACT, I880. 11 proper case, be tlispensod with, or in.iy lie made by some other person instead of the person whose title is to be investin.ited, or an .-iflidavit or deposition as to part may bi; made by oik', ;uid as to part by another, at the discretion of the M.ister of Titles ; and in such case the allidavit shall be modified accordingly." II. The rof^'istrution of any povsnn sis first rc^'istcri'd, owner of land with a possessory title only, shall not alVeet or prejiulieo the enforei'nient of any estate, rij^dit, or interest adverse to or in deroojition of the title of siieh lirst rej^is- tcred owner, and sui)sisting or capable of arisinf? at the time of n.'f^istration of such owner ; but, save as aforesaid, shall have the sameefi'eco as rej^istration of a person with an absolute title. Imp. 38 .^- 3t) V. c. 87, h. 8. Same as Imperial Act, except that " owner " is substituted for"p:o- prietor " in Imperial Act. "Owner" (section j) means owiur in fee simple. See Rule 2. Mr. Charley says: " Snch a registratifin will not affect /x-f-cr/'^//;/!,' interests, but for the purpose of future dealings the land will be subject to the operation of the Act in tiu: same way as if registered with an inde- feasi!)le title. This .\(:t very clearly marks the distinction between a possessory and a qualified title, which seem to be confounded to some extent in the 25th section of the Land Registry Act, 1862. The registration of a (lualilied title is t'l have the same effect as the registration of an absolute title, except that it is not to prejudice the enforcement of any estate or interest appi-aiiii!^ by the rcf:^iitcr to be excepted. The rogisfation of a posessory title is to have the same effect as the registration of an absolute title. except that it is not to prejudice the enforcement of any pre-existiii;^ adverse estate or interest. In case of a <]ualilied title the estates and interests cxptessh' excepted uii the ftice uf the register are the only barriers to an indefeasible title. In the case of a possessory title the b.irrier to an indefeasible title is an inikiKucii quantitv. No cNaminatioii of title, except for the pui pose merely of ascertaining that the claim of the apitlicmt is not a fictitious one, having tai\en place in the case; of a possessory title, no record of the estates and interests adverse to ur in derogation of the title of the owner can be kept. In the case of a cpiaiilied title, such estates and interests are all caki£Kili,v MAKKiii). The express reservation of points as Llots on the title will lie, in one sense, an injury to the estate, as putting in a clear and definite form, objections, possibly groundless, which might otherwise have never extended beyond vague rum ur and might have died 42 TIfK I'ROVINCK OK ONTAIIIO. I I out ill a few years. Hlots will, liowuver, seldom bo eiitoreil np aj;,unst an absohiti' title." A possessory titlo biMiit,' an unkiiowu (piautily cannot br certain. Hut subject to the i)re-i;xistin>,' interests it is daily becoming mure certain. For instance, an .-ippliiMUt unlitlud to tlie estate subject to some con- tingency, desiroH to bo re;;istered. He may liave a pnss(!Ssory title, and may be in fact in possession. 'I'liis contin;^ency may be ;i birth or marriage, etc. If tlic contingency -rise, the p Dsi^essory titK; of th(! first rcfjistered owner " shall not aflecf or prejudice tlu; enforcoment of any estate, ri^ht or interest adverse to or in dero|^ation of the title." I'crhaps the contingency will never arisi: — but " save as aforesaid," it will "have the same effect as an absolute titlo." Ml A (iiiiiliji'ul title may Jif rciiintvred in certain cases. la. (1) Wlicre an absolute title is requirod, and on the examination of the title it appears to the ^faHter of Titles that the titlo can be established only for a limited period, or subject to certain reservntions, the Master, on the applica- tion of the party applying to be registered, may, by an entry made in the register, except from the eil'ect of regis- tration any estate, right, or interest arising before a specilied date, or arising under a specified instrument, or otherwise particularly described in the register. (2) A title registered sul)ject to such excepted estate, right, or interest, shall be called a qualilied title. (3) The registration of a person as first registered owner of land with a (puililied title shall have the same effect as the registration of such person with an absolute title, save that registration with a qualified titlo shall not affect or prejudice the enforcement of any estate, right, or interest, appearing by the register to be excepted. Imp. 88 & 39 V. c. 87, s. 9. Same as Imp. Act. The "Registrar" under the Imp. Act, holds the same office, ami is described in the same terms as the " Master of Titles " in Ontario Act. The words, " an absolute title is required and on examination of the title it appears to the," were substituted in committee on the bill in the House of Commons, for "on the examination of any title to freehold land by ;" TirK LAND TITLES ACT, 188/). 48 the wdrtls, "it appears to him" t.einR also omitted after " the roKistrnv," aivl tlio words, "on the application nf the party applying to he reRisttin-d " insjrtcd after tiio won! " in iv " Thtrsij alterations in the lanKuaRO of the clause effected a considerable, and, it is submitted, a beneficial change in the method of K'ettini; at what is technically termed, in this act, a "qual Tic 1 " title. It is n<.t to bo viewed so much in the li^ht of such a title as the registrar chooses to f,'ivt\ as in the li«ht of such a title as the applicant for an absolute title chooses t.j tal.e. The applicant is assumed to bu desirous of oblainin^;, not a mere possessory title, but an absDliite one, and yet elects to take a (pialilied title. No qualified title can bo registered, unless all the documents have be(!n producctl, which must have been produced in the case of an absolute title. "The title can bo ostablishel only for a limited period." A limited perioil "was sptjcilied in the .5th section of the Land Rej^istry Act, 1802." "ten years actual enjoyment, or receipt of the rents and prcjfits of the land, as owner of the fee simple, continuously ami without interruption." It is much better t'l leave the period open, instead of fixing a hard and fast line. The registrar cannot refuse to entertain an application, however recent the period ot the commencement may be. The option of takim; a title for a limited period, instead of Riving up all idea v{ registering, on finding that an absolute title cannot be obtained, was shadowed forth in the eighth recommendation of the Land Transfer Commissioners. It should be remembered that, although title under this section is a (pialitied title, it is nevertheless a certified one, i.e., certified for the limited period, or subject to the reservations specified on the register. .\ possessory title, on the cjther hand, is not a certified title at all. "i! Ldiiil rcrt'ulcntc ijiccn on riuihtrntion. \l\. On the entry of the naino of the first rcj,'istercd owner of frediold land on tlie regi.ster, the ^Master of Titles shall, if required hy the owner, deliver to him a certificate, in this Act called a Land Certiiicate, in the preserlhed form ; the certiticate shall state whether the title of the owner therein mentioned is ahsolute, qualified, or possr.s- sory. Imp. 38 & 39 V. c. 87, s. 10. Same as Imperial Act. See 33 (ient-ral Rule. Forms 3, 41. If the land certificate be lost the Master of Titles may gra.it a new on^ under .section 80. M 44 TIIH rnOVINCR OF ONTARIO. li f )iir .oritlin|^ to sections 78. yj, linjierial Act. Tin; land certilicatc is prima facie evidence of the matters contained in it ; and tho " deposit of a land certificate creates a lien on tlu; land to wliicli it relates, lil<(! an I'tiuitable mortn.'iKt^ ^y deposit of title deeds ' (Charley, ji. 14}.) Sections hj, Hj. No provision is made in the rules for the proditctiuii of the land ceMilicate, As III the proiluction of documents, see section 109, and rule 51. Compare suction 70, Land Kenistry Act, 1862 (Special L.iiid Cirtificate). As to I'ees, nee post, section 12.^. As to the production of land certificate, Mr. Holt says: "The import- ance of the landcertilic.ite is therefore cviilent, and had it been practicable to iiave insisted on its production in every dealing witii land, as was the rule under the Act of 1S62, its value would have been doubtless much eiih.inci'd. Hut it is understood that so much inconvenience am! com- plaint arose in the practice under that Act, throu^jh the necessity of rccjuirinj^ the production of the certificate on the sale of portions of estates ic^;istered n bulk and soKl in lots, and on similar dealin^Js with latul, that the re),'istrar has frecjuently, in the exercise of his discretionary power, to waive the production of the certificate. Besides which, it is not necessary that any land certificate should be actually taken out, oi- if one has been issued that it should reitieseiit the actual state of the title for the time being, as a land certificate is only evidence " of the sev(;ral matters therein contained," that is, of the title at the date of the certificate. And though the Act makes the deposit of the land certificate "equivalent to a deposit of the title deeds of the lantl," as noi^ieposit of the title deeds could confer any hi..jher ri^ht on the depositee than to entitle him to enter a caution or other restriction on the iej,'ister under s'';:tion 54, so the deposit of the land certilicate, for the purpose of creating,' a lien on the laiul, would be ineffectual to prevent rej^istered dealings unless the lien was protected by a caution or other restriction on the register. The Act also expressly provides that the lien shall be ' subject to any registered estates, charges, or rights.' Any deposit as security of a land ceititicate would, therefore, no doubt be protected by a caution ; and the more so as upon a certificate being 'lost, mislaid, or destroyed,' a new certificate might be granted in its place, with the possible result of two certificates of the same laml sub- sisting on deposit at the same time, and consecjuently of questions of priority arising under the Act. " In such a case, a caution would afford better protection tiian the recpiirement ot the registrar that tho certificate should be produced. " I'or thess considerations, doubtless, there is no provision made in general rules for the production of the land certificate on registered dealings." The Victoria .\ct (Australia), section 149, is as follows: — " 149. No action for recovery of damages sustained through deprivation of land or of any estate or interest in land shall lie or be sustained against TIIK r-ANI) TITI.KH ACT, iHHf). 4f) the HeRistrar r against the Assurance Fund, or against the person upon %vhi)se aii|iliialii •> such 1 uvl was lirou«ht under tlu> operation of this Act, or against the yo.r. mi who applied t') It; rt'Kistcrcd as propnetDr in ri-spect to such land uidess Huch action shall tie commenced within the jieiiod of six years fmtn the date of such deprivation. Provided, nevt.Tilr less, that any person bein; un ler the disability of coverture, infancy, uusuuiuIulss of mind, or absence from Victoria, may brin^ sucli action within six years from the date on which such di i-rdidity shall have ceisod, so, houi-vor, that such action bt; brnu;;ht within thirty years next aflir the u fur ri'iiixtridioii irilli nr itilliniil a ilicliiriitinit nf tith' nf IfHUar It) iirditt li'dSC. I»l. A S('iiiiriiti' register sliiill Itr krpt of Icusohold laiul, iiiul on iiiul al'tir the; coimiicnccMiicnt of this Act iiuy of the followin;' persons ; llmt is to say, (1) Any porson who hiis contracted to hiiy for his own bt'iielit, leascliold land held under a lease for a life or lives, or deterininahle on a life or lives, or for a term of years of which more tlum twenty-one are nnexiiired, whetlier subject ov not to incunihriinees ; and (2) Any person entitleil for his own benefit, 'at hiw or in equity, to leasehold land Injld under any such lease as is descrilx'd in this section, whether subject or not to encum- brances ; and (}}) Any person eapal)le of disi)osinj; for his own benefit by way of sale of leaseliold land held under any sucli lease as is described in this section, whether sulijeet or not to incumbrances ; may apply to the ]\raster of Titles to be registered, or to have rej^'istered in his stead any nominee or Jiominees not exceedini; tlu! prcscril)ed number, as owner or owners of sucli leasehold land, with the a(hlition, where the lease under which tiie land is held is derived immedi- ately out of freehold land, and the apidicant is able to '», riir. I.\NI' TIII,l',^4 ACT, IHHi"). 47 Huhmit for cMiminiitioii tin- title of the It'SHnr, of ii (Icdiini- tioll of tile title of the less )|' to i^nillt the hiise imder which the liiiiil is lield ; ( vemlor coiiHejits to the ait|»lieation ; (h) I'iVei'y applicant for re^,'istratioii of leasehoM land shall di'posit with the Masti r of Titles tin- lease of tho land in respoct of which the application is made, or if such leano is proved to the satisfactioji of the Master of Titles to he lost, a copy of such li-ase or of a counterpart thereof, Verified to the satisfaction of the Master of Titles ; and such lease or attested copy is in this Act n IVrrc d to as the re}.;iHtered lease ; (cl Leasehold land held under a lease containin;^' an aiisohito prohihition a^^ainst alienation, shall nt)t bo re;,'is- tered in pursuance (»f this Act ; ((/) Leasehold land ludd inider a lease containin;^' a pro- hibition a^^ainst alieiuition without the license of hoiuc other person, shall not bo reyistertd under this Act until and indoss provision is nuido in the proscribed nuinner lor preventing aliinuilion without sucdi license, by entry In the rej^ister of a restriction to that ell'ect, or otherwise. Imp. yH \- iM> V. c. H7, s. II. H S.'imo .'IS Imperial Act. Sco GL'iiiir.U Kiil«! I Tlie riciuMal Rule (3) in the Imiifrial Act is omittuil in lliis Act. 'I'lw. sniJ rult;(j) niakt!s jnuvisicni f -r a particular tluscription of tho laud It will lu! seen that the three classes of leasohnKlors eulitU; 1 to bt; re^is- tercel corresponds with the three classes of freelMldeis under sections 5 and C). Tho piescrihe I numhvT. General Rule 37 provides; " No more than four persons shrdl at any time he rc.fi^istered as owners of the Sim ■ land or charge. If the number of persons slu.-wint; title exceed four, such of thorn, not I'xcei'diii^; four, sliall 1) resist' ii d as they may in writing a;;ree upon, or, in casi; th'.y cannot ai^ree, as the Master of liili s may, upt):i application, decide after such notices h.ive bc/n aivrn (i( any), and proceedings taken as the Master of Titles may direct." Ru.e 37, made under Imperial Act 38 & jy Vict. cap. S7. I 48 TiiK i-ruiviNcr': oi* ontaiiio. h( Our (ioni ral l^iilu i, ntnitH thn fnllowirtK Nsonln which nro part of the Knf{liiih Hull* " in thn c-itto of lonHi'lioM land, with nr vviih')iit n ilcclaiaiion of tho titlu of tliu icrttxt to Kr.-uit tli't ItMvt uiiiIlt uiiii Ii tho land in held," Tho I'xproMsions, " indnfiiasiljli! ' litloand "nlnoliito title, " nir muncsvliat miHliMdinu wlmn .ippliitd to thi) lilli! nf the Ichhii.v They Miiiiply fuoan tliat vvhiitiHiT inliiiist aitiially siibHitts in thn li iso is vosiod in llm !« ^sin-. 'I'ljo rexiHtration, i'.xti!|)t \\ln'ri.! tin; titlmif tin- Ii'wni is dr.larod to lit alisoltite, imparts no Kruator validity to tho h-ssii! s tiili' than it li a I iH'forf. On thu other liaiii!, thiTo can lui no pD-HcsJiorv tith^'if luisiiliold land, llv stu iion an of 'his Alt, !i,'aw)s, or aKroiMnt-nts in loam)*, or itMiancicn for any tut in not uxcuodin^ tsvcniy-ono yoam, or for any lusn cHiatu, in c.asos whuru theru is an nccup.itioii under such UMiaiuics, ainimt to bi'dictnid incuiul'raiii us within tho iniMiiiiiK "t tiiis ,\ct, l-ut tl.-; Mnstcr of Titles may, if lu- lliinks Ht, untor noticH nf any hucIi luaHe.s, if proved to oxiiit on tho rcKi-itor. Tho proviso that tin- lease itself shall he depositt^d with iIk; re^isttar is iiev,. Tlu) deposit of tho leaso miKhl lie imonvenient, if it wuro not for tlie suhsfipicnt cnactnietit (sfction jo) that tho lessee and his transferees shall be entitled to deinaii I .1:1 authrntieated nKioe copy, which is by section S.; to be "evidence of lh(! contents of the registered lease." In the prescribed manner, by thu jind (ii-neral Kule, " on tho rc^jis- tration of any leasehold land, httld under a leaso containing a prohibition at^ainst alienation, without liecMisi.', provision shall be male for prevcntinK alienation without sucii license, by an entry on the le^^iMtur of a refuronco to such prohibition. " Kr'uU'itri' of tilli' I'cqinrrif. lU. All appHciint or liis iioniineu hIirII not l)o r(.';^isti'rc(l as owiuT of li'iiHdliold 111 11(1 until uiid inilcss the title to such limd is iippioved by the MiiHtor of Titles ; and t'lirtlur, if he apply to 1)0 rcf^istered as owner of leasehold land with a dei'laration of the title of the lessor to {.^'rant the leaso under wliieli the land is held, until and unless the lessor, after an examination of his title hy the Master of Titles, is declared to have had an Ahsolut(> or (^)ualilu'd title to •, paKo n<) 'i'lu: ,t'lvniit.it{< (if a lati'fiil cxniiiinallun u( llio tiilu of tho leator, an>l ilcctaration of IiIh iilmoluio r\n\n t<> Kr>" lu>^'*<'> it ^'''viuu*. A loans ovlilt'iilly iMim il l»( prii|H!rIy ili-*criliuil as iiii|ifi'.i>iil>!i<, wlii » tho U^^'wa \n ti,tl)Ut to litt ()ti' n litli? p,uaiiir)tiiu (■• tli ti i>f tho loKHur. Atiii it ii« eikprouly proviilinl thai thu re^iiitratiun timtur tl)iH Act i>r thu U'hhih in n'>t |(i atlvct tliti enr>irccmont of any hkIu in i|cro){ati()M of thu titlu i>f thu leftn >r to K> •lilt tho le.i lu, bo survcil on ihr losnor." I'jHtiili' oi liiHt n'liiiilii'i'il oivhi r i>j' li'iiHilnthl liiml n ith i( ili'rdtrtdinn of' ahAnhili' liti' III' li'HHnr to iiniiil lidHi . 17. Tlio iv^Isti'iiticn lunluf tliis Art «)t' iiny pjTKoii ns lir.-'L i'i';;iMtfftal dwiki* of h/iistliold liiiid with ii lUclanitiott that the IcHsof hiid uii Ahsohitu Title t«t }';fiint the h'liso iiii(Kr which thf hind is held, Hhiill he d( iiiicd to vost in siu'h [JcrHoii iht poHHCHsion <>|' tlu' liiiid compristd in the ri'ijistiTid k'liHC rt'hitin;,' to such hiiid t'ur nil tli(; JcfiHcdidld oBtiiti' lIuTiin di'.scribi'd, with nil ini|»lii d or cxprcs.st d rij,'hts, |»rivili"^'c';! and apiJiU'li'mmcirf attiichcd t" ... j, during the dispute with the Province as to the true western boundary of Ontario, and the extinction of title procured by and for the Dominion enured to the benefit of the Province as constitutional proprietor by title paramount, and it is not possible for the Dominion to preserve that title or transfer it in such wise as to oust the vested right of the Province to the land as part of the public domain of Ontario. It appears as a deduction from the legislation relating to the subject that the expressions " Indian Reserves," or "Lands reserved for Indians' had a well recognized conventional and perhaps technical meaning before and at the date of Confederation. "Lands reserved for Indians" is used in the British ;ii TIIK LAND TITLKS ACT, 1H85. 61 '■ \} North American Act as a well understood term, and that it was so is further demonstrated when one lonks at the results of previt)us legislation in the various Confederated F^rovinces other than Upper Canada. So also the legislation of Canada since Confederation reflects very clear light upon what was understood by those Indian Reserves, Before the appro- priation of Reserves the Indians had no claim except upon the bounty and benevolence of the Crown. After the appropriation they became invested with a legally recognizeil tenure of defined lands in which they have a present right as to the exclus' e and absolute usufruct, and a potential right (if becoming individual owners in fee after enfranchisement. It is ■■ lands reserved" in this sense for the Indians which form the subject of legislation in the British North American Act, i.e., lands upon which or by means of the proceeds of which after being surrendered for sale, the tril)es are to be trained for civilization under the auspices of the Dominion, It follows that lands ungranted upon which Indians are living at large in their primitive state within any Province form part of the public lands, and are held as before Confederation by that Province under various sections of the British North American Act. (See sec. 92, item 5; sees. 6, loy, and 117.) Such a class of public lands are appropriately alluded to in section 109 as lands belonging to the Province in which the Indians have an interest, i.e., their possessory interest. When this interest is dealt with by being extingished and by way of compensation in part reserves are allocated, then the jurisdiction of the Dominion attaches to those res>.»ves. But the rest of the land in which "the Indian title" so called has not been extinguished remains with its character unchanged as the public land of the Province. Compare section 9 with present section and see section 35, Estate of first refiistered owner of leasehold land without a declaration of title of lessor to (jrant lease. \H, The registration of any person under this Act as first registered owner of leasehold land without a declara- tion of the title of the lessor, shall not affect or prejudice the enforcement of any estate, right, or interest affecting or in derogation of the title of the lessor to grant the lease under which the land is held ; but, save as aforesaid, shall have the same effect as the registration of any person under this Act as first registered owner of leaseliohl land witli a declaration that the lessor had an absolute title to grant the lease under which the land is held. Imp. 38 & 39 V. c. 87, s. 14. T sa THE PROVINCE OF ONTARIO. f d I Same as Imperial Act. See notes to section 15. The object of tliis section is to make the title of the first rcRistored owner of luaseholci land as perfect as possible, subject to the rif^hts of the lessor. This will have a tendency to make the transfer of leasehold pro- perties more simple. It will however be of little practical use in Canada, as leaseholds are not very frequently met, except in the business parts of large cities. Lessor mmj he declared to hare a qaalijied title to (jrant lense in certain cases. UK Where an A])Solutc- title is required, and on the (!Xtiminiition of the title of any lessor by the Master of Titles, it appears to hiui that the title of such les.sor to jjjrant the lease under which the land is held can be estab- lished only for a limited period, or subject to certain reser- vations, the Master of Titles may, by an entry made in the refj;ister, except from the etfect of re}:;istration, any estate, right, or interest arising; before a specified date, or arising under a spcciiied instrument, or otherwise particularly described in the register ; and a title of a lessor registered suliject to such excepted estate, right, or interest is in this Act referred to as a Qualiiied title ; and the registration of a person as first registered owner of the leasehold land with a declaration that the lessor had a Qualified title to grant the lease under which the land is held, shall have the same effect as the registration of such person with a declaration that the lessor had an Absolute title to grant the lease under which the land is held, save that registra- tion with the declaration of a Qualified title shall not affect or prejudice the enforcement of any right or interest appear- ing by the register to be excepted. Imp. 38 c^ 39 V. c. 87, s. 15. Same as Imperial A.ct. See notes to section 12. This section is almost identical with section 12, and framed to give a Qualified Leasehold Title, as the former section gave a ^"^ualified Freehold Title. I: THE LAND TITLES ACT, 1885. 68 ri 1 ()(JU'e lease given on rcght ration. ao. On the entry of the name of the first registereil owner of leasehold land on the register, the Master of Titles shall, if required hy the owner, deliver to him a copy of the registered lease, in this Act called an ofhce copy, authenti- cated in the prescrihed manner, and there shall he endorsed thereon a statement whether any declaration, Ahsolute or Qualified, as to the title of the lessor has heen made, and any other particulars relating to such lease entered in the register. Imp. 38 & 39 V. c. 87, 8. 16. Same as Imperial Act. An " office copy of a lease" and a "land certificate" are substantially the same in this Act, except that by section 82, " A land certificate or certificTte of charge" shall be prima facie evidence of the several matters therein contained, and an " office copy " shall be evidence of " the contents of a registered lease. ' See Rule 34, which is the same as Rule 34, Imperial Act, except that the Imperial Act reads, " Where a fresh office copy is required," etc., and the Ontario Act, " Where a fresh copy is required," etc. If "office copy " be lost (sec. 80 and sec. 81) or delivered up, the Master of Titles may giant a new one. The deposit of an " office copy" creates a lien on the land to which it relates (sec. 83). See section 39, where the registered transferee of the whole of the land is entitled to demand the office copy, and the registered transferee of part of the land may have a fresh copy. By Rule 34, application for an office copy of a registered lease may be made by the registered owner entitled to have and requiring the same. (See form of application 41). See sees. 123, 124. 7 M 54 THE PIIOVINCK OF ONTARIO. ! ! PART III. Rroistration, how Effected. lii'diildtions (18 to cranti nation of title hif Mastfr. 31. The examination by the Master of Titles of a title under this Act shall be conducted in the prescribed manner, provided as follows : (1) Due notice shall be given where the giving of such notice is prescribed ; and sufficient opportunity shall bo afforded to any persons desirous of objecting, to come in and state their objections to the Master of Titles. (2) The Master of Titles shall have jurisdiction to hear and determine any such objections, subject to an appeal to the Court in the prescribed manner and on the prescribed conditions. (3) If the Master of Titles, upon the examination of any title, is of the opinion that the title is open to objection, but is nevertheless a title the holding under which will not be disturbed, he may approve of such title, or may require the applicant to apply to the Court, upon a statement signed by the Master, for its sanction to the registration. Imp. 38 il- 39 V. c. 87, s. 17. (1) It shall not be necessary to produce any evidence which by the fu'st section of IVie Act to mncnil the law of Vendor and Pnrc)taser and to Sinqdifif Titles, is dispensed with as between vendor and purchaser, nor to produce or account for the originals of any registered deeds, documents or instruments, unless where the Master of Titles otherwise directs. E. S. 0., c. 110, s. 10 (2). (5) The Master of Titles in investigating the title may receive and act upon any evidence which is now received by any of the Courts on a question of title ; or any evidence i: ^ TlIK I-AN'D TITLKrt ACT, 1885. 56 which the practu'c* of En<,'lisli convcyanctrH autliorizcs to he roccivi'd on an investigation of a title out of Court ; or any other evidence, whetlier the Hanie is or is not receivable or HulVicient in point of strict law, or accordinj,' to the practice of l-iii^'lish conveyancers, provided the same satis- ties him of the truth of the facts intended to bo made out thereby ; ({')) The said Master of Titles may refer to and act upon not only the evidence adduced before him in the proceeding in which such evidence is adduced, but also any evidence adduced before him in any other proceeding wherein the facts to which such evidence relates were or are in question. K. S. ()., c. 110, 8. 10(1). !> ! In the " prescrilieil nianiior," muler I.oril Wi'stbury's Act, tlic applicant had many tlifliculties to meet. The words "whire the f^ivinn of siiih notici; is prescribed " wert: inserted in the Cointnitlee of the House of Commons, when the Land Transfer Act of 1S75 w,is f'oing thrcjugh, ;ind ,it the same time, many of the restrictive words were sti iick out. " The new system will be endowed with an elasticity which was wholly wantin;; in the old." (C'lirirley, pa^e 151.) Before fi(yin'^ tnore into detail with regard to the "examination of title " by the Master of Titles, let us consider the special provisoes of the present section ; — (i) "Due notice shall be given where the giving of such notice is prescribed." See rne adver- tisement, if the Master of Titles thinks fit, and in such case the expense of 11 T 56 TIIK I'ROVINCK OF ONTAUIO. f the aJvertiscment shall he borne by the several applicants in such propor- tions as the Master of Titles may direct. (5) "The Master of Titles may dispense with the advertisements when; the applicant is thi; ori^jinal grantee from the (!rown, t)r produces rdl the title deeds, by which the title is traced from such grantee, or w here he has obtained a certificate of title under the Act for Qniiliiif; Tillts to Rml Estiitc: Trovided in every tif such cases tliat he is in actual occupation lA the land, or that the land is wild and he is in constructive possession thereof by having paid the taxes tht^reon, and that no instrument or caution aflectinK the title has been registered." This rule is different from the Imperial Kule 10, which expressly refers to absolute titles and ipialilied titles. There seems to be no reason why the Ontario Act should re(|uire any notice in the Ontario (inzitti; for a possessory title. The possessory title is only what the applicant has at present, and all that he expects to get by registration is to (ix that title at the time, so that there will be a definite time from which his title begins to run. All previous title is dependent on the value of the previous conveyances, and he does not ask the Land Titles Act to make them either better or worse. The lCnj;lish le;^islators appear to have understood the scope and bearing of the system. Whether the wide discretion given the Master of Titles by Rule 9 will enable him to dispense with publicition in the case of a possessory title is questionable. "Due notice shall be given" — see form (j — for advertisement. The registration shall not be completed "until after the expiration of at least four weeks." In the Imperi.il Act it was three months. No precise time is fixed for the issuing of advertisement, except that it must be after the application, Under Kule 11, tlie Master of Titles may recpiire from time to time any further publication to take place. See Form 12 as to notice in case of adverse claim, and Rule 10, which prescribes that the Master of Titles shall, in case an adverse claim appears to exist, direct such notice as he deems necessary to be mailed to or served on the adverse claimant, his solicitor, attorney or agent. As to title by "adverse possession," the practice in Australia seems to be as follows (a'Beckett's Transfer of Land Statute, page 77): — " A certificate of title will be issued to an applicant who has been continuously in possession of land for thirty years, or who can show a continuous possession by himself and those through whom he claims for that period. A certificate of title will be issued to an applicant who has been continuously in possession of the land for fifteen years, or who can show a continuous possession by himself and those through whom he claims for that period; provided he can show, in addition, that the owner was under no disability, at the time such possession commenced. The ownership at that time will be determined by search in the office of the Registrar-General. Should the actual dimensions of a Crown allotment exceed the measurements given in the Crown grant, and the owner of a rl Tlir. LAND mr-KH ACT, 18H5. 57 pnrti')n of it be in actual possession of a l.irK<:r area ihaii tl.at ■Icsnilicl in the ( onveyancc to him, he will f)htain a cortifuaff! of titif. to the larner area if ho can show that tin; fences havi; Ix-nn iimlistui Led f )r fifteen year§, and that evjry other owner of any part of the allotnii-nf i*- in possession of as lar^c an area as may havt; been conveyed to him. ICvery plan pur- porting to be made from actual survey, showing boundaries, positions, etc., different from those set out in munin)(nts of title, or produced in sujiport (if ,1 title by possession, must bii m idu and cirtilioil by ,i licensed surveyor or by a borouRh or shire surveyor." " Sufficient opportunity shall be afforded to anv persons desirous of objecting to come in and state their objections to thi; Master of Titles." r^ulo iz prescribes the mode of objectinf?. " iz. ,\ny person having an adverse claim, or a claim not recoRnized in the application, may at any time bofore the registration under this Act is completed, tile and serve on the applicant, his solicitor or aRcnt, a short statement of his claim, which m.iy be acc.irdini; to tht; form sjt fortli in the Schedule of rorms. " (z) This claim shall be verified by an affidavit to be file 1 thcrewi'h, .-ind shall C'intain an address in this province at wiiich service on the objector shall be made." As to the form of objection, see Form lo. " (2) The Master of Titles shall have jurisdiction to hear and deter- mine." etc. See Rule ij. " i i- The applicant or iiis solicitor shall obtain an appointment before the Master of Titles for hearing any objection which shall have been duly left in the office, and shall servo the objector with a notic; in writing? to come in and state his objection to the Ma.ster of Titles at the time men- tioned in such notice, such time not beinjj less than seven clear days after service of such notice. The parties may be heard in person, cjr by counsel or solicitor." Form of notice to objectors — Forms 11-12. " Subject to an appeal to the court in the prescrib.id manner and on the prcscribeil conditions." As to appeals, sec Rule 59, "The right of appeal is, it is presumed, f^ivcn to both the ,-i|>[)licant for, and the objectors to, registraticm. It is only in reference to ' any such objections' — /. f., objections by persons who 'came in' on receiving notice under sub-section i — that an ajipeal is ■,'iveii by sub-section 2. In the event of the registrar himself raising an objection and declining to register, his decision would, it seems, be final." (Charley, page 157.) (3) With regard to this section, Mr. Charley has the following : — ' The powers conferred on the Registrar (Master of Titles) are alike great ili t M T 58 •rm; i-iiovinck of Ontario. and «alii».irv. 'Ihry confer, it has been said * on the Refjistrar (Master of Titles) full jiiilici;»l jiower to hear and determine objections, and extraordi- nurji jiiriKtlirtioH as to iho titles tn Ix- arcpti- 1 for re^istiatjnii. Th(! cfd'ct of stil)-secti(jn {j^} in to j'iv'c to the Krfjistrar (MuHter of 'i'itlus) tht; wiilt'st possible discretion, and to enable him to Hitt)stitut(! a (lood lioldiii'i title for a mrirketaliio one as .ibfuiliite and in,'i itrv Ollicc, or the ciirtificatc of the Kt't^iHtiar i^liowiii;; all iustriiinents afffitinj; the prnperty must bo produced. For the Mister to make these examiintioiis is clearly impracticable, and it is therefore sn);Rcst''d that a ri'Kistrar's abstrjict shnuld in all cases be 1( ft with the applicaii m. This is refpiisite uiiil<;r the (Juieting Titles Act. Re Hill. 2 Chv. Ch. M. ,ri8. It is presuiiii'l that before the .\ct has been long in operation it will be found necessary to authorize the app lintment of examiners in accordance with the Australian pr.ictico. At sonin sta;,'e of th(> iiroceeeliuRs it mu t bo shown that no bonds, or other securities. Riven to the Crown, bind the property under ('. S. II. C cap. 5. As to affect lands such bonds must h.ne been registi re d in the Crown Office before -fj-.^o Vict. cap. 41. or at any rate must have been executed before that statute, the probability oi any such instrument being found is very slight; still, as it exists, the proof that no such bonds are in the Crown Ollice must be furnished. It would be well if i\w l^oniiiiion (lovernment wouM pass an Act similar to the Ontario .\ct <6 \'ict. cap. G, by the fifth sei tion of wdiich all lands an? released, so far as tliis Province is entitled, from the charge created by tiie registr.ition in the Crown Office of obligations to the Crown. I'ossibly the Governments interested would have authority to relea^r. this lien without waiting for an .\(:t of rarliamenf. The Dominion Government may rcleji'-e llu; charge; in any iiidivi), proceedings are available up to the point rc.iched. The Master of Tith's may then decide the ijuc-ition of title on tlio evidence, or may refi r the same to the court. As to the practice under subsections 4-3, Mr. Justice Taylor has the followiii;.; note in his vsork on f,>iiietin« of Titles, pane ifx) :— " As a ^jenrral rule tilt! evidence should include not only what a purchaser's soliutur would satisfy himself of by search .iiid enquiry acconiin); to the rules laid down by conveyancers, but also what is iie.-essary fur a vtMidur to piiwluce to a purch.aser on ,1 strii t investi>,Mtiiin of title. Hi>{her evidence IS necessary than such as would merely prevail in ejectment. There are erroneous judgments upon dtft'itive or unsound evidence which m.iy bo cured by another I'jeclment ; but if the doubt.s upon a title shouM after completion ripen into defects, the purchaser may find it impossible to rcRain th(.' position whii:li he h'dd btfure the contract. Thus a s,,ven years absence without tidinK's, thoUKh it prevails as evidence of death in ejectment, is clearly insutiu lent between vendor and piirch;»s(!r, that tha title is jjood ,a),'ainst all the world, and not merely sufficient to prevail against certain confendiuR parties. ICvery fact which is capable of iiein^ proved bv independent evidence ouf;ht to be proved. A'f Cliamhirl/ rvfi'iHti'ml laud to cunementa ttml certain othrr riijhta. UtJ. All ri.'f^istored liiiid hIiuII, hiiIchh uikUt the provisions of tliia Act thu contrary is i'Xi)rc8He(l on the re^^iHtor, be (k't-nied to bo Kubjcct to such of the following liabiliticH, right.s, and interests as for the time Iteing may bo subsistinR in refereiiee thereto, and Huch liabilitieH, rights and interests eliiill not be deemed incumbrances within tho meaning of this Act ; (that is to say) — (1) Municipal Taxes for the current year. (2) Any municipal charges, rates or assessments there- tofore imposed for local improvements, and not yot due and payable ; (!}) Any public highway, any right of way, water-course, and right of water, and other easements ; (1) Any title or lien which, by possession or improve- ments or other means, tho owner or person interested in any adjoining land has acquired to or in respect of the registered land ; and tho description of the land shall not, as against adjoining owners, be conclusive as to the boun- daries or extent thereof; (5) Any lease or agreement for a lease, for a period yet to run, of not exceeding Dircc years, where there is actual occupation under the same ; (0) Any right of appropriation which may by Statute be vested in any person, or body corporate ; (7) Any right of the wife or husband of the person regis- tered as owner to dower or curtesy (as the case may be) in case of surviving such owner ; I I TIIK LAND TITM S ACT, iHHo. Ui (8) Any rinlit im ntioiud in tlic tliinl Huh-soction of .sec- tion !> uf tliiH Act ; Hut if llio iiiiplii'iint (loHircH tlio cf'rtin<'iiti) to (Ut'liiH' tlic tith' to Ito till' IVoiii tlic Hiiid particulars, or any fif tluiu, liiu application sliali 8u hIuIc, iiiul the invcHti^ulion ^llall proi-ccd accordinj^'ly. 11. H. 0. c. 110, H. 2(5 ; Imp. 88 .'t \i[) V. c. 87, h. 18. The first pan of this scctimi down to " tli'it is to say," is lahon fn>m thf Impcriil Aot; siili .scrti'ii a, p.iit of 4, siili-sftlifm j;, and tho latur part i'( the section, " i)iit if thu applicant di-sircs tlio certilkatus," utc, fniii tliu yuictinj? of TilltB Act, K. S. O. cap, no, sec, 20. Th(Miuust:oii in Ansti. ilia was tliis, II'. sv to j,'ivo tlie man a ^ood title for his own particular land? They divided it into iwo iT.mchos. iBt. The Solicitor's branch should lin>l out tiiat he had a K<mi) will show that " utdess the con- trary is cxpre-sed on the njiister," the title of the osmk r uf the fe«; simple, thou>{h rei;is!ercd as " abschUe," ami that uf the purchaser from him fnr valuable consideratii n, will bo subject to the "liabilities, rifihls and interests" mentioned in the present section. I'.y sections 17 and 40, alsij_ " unlchS ihcconlr.iry is expressed on theref{ii>ler," thu title of the proprietor of ieasuhold land, althou,L;h the lessor shall have been declared to luive had .absolute title to fjrant the lease umier which the land is held, and also the title of a purchaser from the lessee for the valuable consilci.ition, will be subject to such of the liabilities, linhts and interests mentioned in the present section as affect the leasehold estate, " In other words, the " liabilities, rights and interests" mentioneil in the present section are not, " uidessthe cnntraiy be expressed on the rej.'ist(!r, ' legally affected by the registration ; they will continue to attach to tlu; land, even after it has been placed on the register, and although nut noticed upon the register. It will always be incumbent on a purchaser, even of the fee simple with an absolute title, to inquire, as at present, whether the " liabilities, rights and interests " mentioned in this section exist or not. We have no form 31, as in the Imperial .\ct, but as it may be useful, see form in Appendix. Exceptions are to be noted. In the Province of Victoria, Australia, where they have had more I .\ I iV2 I'UnVINi'H Ol' (INTAIIK). rKp«*rienco in tho workinK of thn •viliin ihaii in .uiy ulhur country, Iho Alt mill iititfii of Mr. rt'll«H'bult niav Ihi cunHullttil. (I) " Mimin|i;il i.imh fur mrri'.t )«Mr. ' How far till! N.ili! of I.iikI uiuli'r ihil>'fi it llu- iiitlii tu of arir.irH of laxrn ih a i|iii'Niu>n. Tlin pun liiiMiler the stituto cannot lie shown on tlu'certifuatc of til If to Ihedoiniti.mt iciicmt'tit , • r /•rir/.C'iooioi/,'- litim, J V. 1., K. (I. ) I')') Nor tan an < isetTient Mppiirtcn int ovtr l.md iindci thestniutc, at le.ist where tho owner of the servient tenement objccti; .-r f'^rt. n.isul, 5 V. I.. K. (I..) "is: y>»i,,w. r„rk. 3 V. L. K. (1.) ir.7, where tlie conlraty sit'uis to have been iniplieilly held. It h is been s.iid that an incor|x., was reported to the Commissioner of Titles by Mr. Kxaminer Snowden upon the following view of thi; le^'.d position : "'The 17th section of the Tr.msfer ol Land Statute, assisted by the Interpretation t'lause, provides that the jierson claiming to be the owner in fee simple nf ihe land iiicltiiiniK' an iiu mpoieal heri'dit.iment mav apjily to bring the s.ime under ihe Act. Tiie jist section, assisted by the Inter pretation Clause, directs the re^jistrar to bring the land includinR the incorpoie.il lieredit.iinenl under the Act by registermg a certificate of title in the form in the jril schedule to that Act. The form in the jrd schedule provides for a descriptiim of the lantis only, and not the incor|)or. eal henditiiment, but the amending Act, No. (no, section 4, etdarges the form of the jid schedule by enacting tliit it shall be deemed to extend to the sotting forth of the easements to which the person ii.imed in the certificate of title is stated to be entitled ; and section 2 of that Act pro- vides that whenever any certificate of title shall cont liii any statement to the eflict that the person tl.erein named is (-ntilled to .uiy easnient ihorein specified, such statement shall be received as conclusive eviilence that ho is so entitled. It Minis difliciilt to imagine what more effective svords could be used to authorise the registration of the easement, but in the report of the case it does not appear that the forgoing sections were men- rur. i.ANit Tin. KM act, IHHrt. m lionihl It) tli< iirKtiiiienI, tir ihnt lKt< (ilir'niioii<>f ihu lourl wna in nnywin* iHrtcldl Id ihniii.' An ti> llii* i|iirMiioti iiii'Mtioiii'il in lilt: i(>|»ii lh» lille of ihn itt>rvicnl nR wull an of Ihtt iiiiiii iril li'iirin>'nt lli« niiIioiih of thi' Ad upon ihAl |x>int Ptliild onlv to i-nti'im-titH t ri.Mti->l iiiit ,17 of till! Trannfi^r <>f l.nml St.ttuli* apply, ami nto to ihuillid that it m not neceiiiiary that HUch *Miri'iii>ntii ihoiiM ap|>upri'niu Court in fx fiirti Hcisifl licinK iKnorvd, Tlir I .tralin, paisfil an Act tn nmcu'l the Trannft-r of Laml Sialutc with DKarti lo Licnu!niH, ami the proviniontt of the Act, ti'Ktilhcr with Mr. a'iicckutt't notvH, may l)i' uf Morvicu. '2. Wlu'iK'Vcr any (•crlilicati' of title or imy (liipliciito tli( itof, titlicr ain iidy rcj^'iHtcri'd or iHHiicd, or lu'reaftcr to \n> r«'f,jiHti'ri'(l or inHiud uiulcr any of tlii' iiroviHioiiH or otlu'rwiHi', under the operation of llie Transfer of Land Statute, shall contain any wtatenieiit to the ••Ifect that tho lurHon muned in the certifu'ato in entitled to any eaHeinent therein trpecilied. HUch statenient shall he received in all cointH of law and eipiity as conclusive evidi'iice that ho is HO entitled. As to the probative force of this statement, whether in thecertificafe of the (lomiii.Tnt or servient tenement, sec youts v. Piirk, 5 \'. L. K. (I,.) iit'^. In IX />rize the creation uf ways in gross, and in i.r furtt- CiiHiiiii^hiiiti, J V. I,. K. (I,.) 191J, it w.is held that even an ease- ment ;»ppiiiten;iiit could not lie shown escepi on the terfilicale of the servient tenement. To remedy this defect in the law the present Act was passed; but in ex purte lUisstl, 5 V. I„ K. (I,.) 53, the Snpreme C'Hirt decided th;\t soctinn 2 ni' rely stated llieiflecl ul an easement so ap|H.Mrinf{, but did not authorize the registrar to enter an easement on the certilicato of ih(,' domin.int tenemiiit. A note a|ip(nded to the report states, that alter judRnient had been delivered the Court intimated that inasmuch as section 4 post had been overlooked, the question wouki reipiiie further con- sideratiun should it arise ajjain, and the decision has never been considered t TT ' 01 THK l-noVINCK OF ONTAIIIO. biiuling. Till! Ollict; of Titles iniiorcs it, aiiil tliu linht to enter easements on tlu; certitkate of either the doniinaiit or Hervient teneinont was tacitly recognize'l in the later c.iso of yoin-s v. Park, ubi. iHf>, Sfinhlf, the map mav be delineated (in the margin instead of bein^ endorsed ; jfuius v. I'lirk, 5 \'. I-. R. (L.) lOy. In ex parte yohnsoii, 5 W. W. iS: a'li. (L.) 55, the Supreme Court decided that tlie Traiisfei of Land Statuti! a|>piied only to eascjinents appurtenant, and this section is nut considered by tlio Commissioner to authorize him in issuing cttrtilicates in nspejt of easements in jjross. In no case will a certificate bo issued in respect of an easement only; the proper course for a rej;istered propri(;tor who has mquired an easement appurtenant to his land is to apply to have a new certificate, showing the easement, issued to him on surrender of the existinfj certificate. It has been suj-pested that a rent chai^je issuing out of land not under the Ai:t iniKht be maih' the subject of a certificate 1 a' title. ICx parte Citniiini^lnim. \ \' . L. K. (I.) ny) ; sed. qu. An easement may be creatt.'il ami surrendeied by a separate instruiuent, which will bu ie;;isteretl. The duplicate certili- catt! if both ilominant and M(;rvient tenei'ient should be lodt^'cd with tin; registrar on a surrender, so that the ni:cess;iry entries may be mar and not to the niortqasee ; to >;ive the mort},'a!,'ee the b.mefit of such an easement a fresh mortgaRc '.ill be necessary. Where a re,L;i;,t red proprietor who has mortf;a:-;ed the whole of the land includid in hu. eertiliiale of title seel s. with the consent of his mort- BaRCc, to transfer part of the land, together with an easement appurtenant over other part, the instrument of transfer should be prepared as if the premises sou,t;ht to be transferred were unencumbered, but the written consent of the mortnanee to the transfer must accompany it. Seilf;. 39. A registered proprietor who has subdivided his land and contemplates transferring the fee sitnple of a road while retaining land abutting thereon can reserve an easement appurtenant to the land retained. An owner of land not under the operation of the Transfer of Land Statute may acquire an easement appurtenant thereto over land under its operation, and the instrument creating the ea.semcnt will be registered and appear as an encumbrance on the certificate of the servient tene- ment. (See section 64 of the principal Act ante.) tsuch an easement will no doubt pass by conveyance of the dominant tenement, but no transfer o the easement will be registered. The evidence of title to the easement in THE LAND TITLES ACT, 1885. 65 this case would be the original instrument creating it and the conveyance of the dominant tenement. Seiiff. 151. (4) " Any title or lien which by {xjsscssion or improvements, or other means, the owner or person interested in any adjoining l.inds has acquired, etc." This is taken from the Quieting of Titles Act and is different from the English or Australian Stntutiis. It is peculiarly the offspring of Ontario. I'trsons ohtainiiiK a certificate of title will have to do so subject to the ']uestions of the limits of boundaries being raised, unless they choose to have the matter tlffiuitely settled under the last part of this section. Boundarie.s appear to be left to take care of themsi^lves. The solicitor must advise his client makirig the application for an in- defeasible title, that he t.ikes subject to the rights of adjoining owners as to boundaries. The difficulty under Lord W'estbury's Act of 1862, was that the notice to adjoining owners that the Registrar felt called upon to give had the tendency of stirring up strife. In ninety-nine cases out of one hundred boundaries are settled, it is better therefore to let the hundreth take care of itself, or if there is any dispute apply under the last part of the section. Hut under Lord Cairns Act, 38 & yj Vict. cap. 87, the question was left open by section 83, sub-section 5, which enacts : " that such description shall not be conclusive as to the boundaries or extent of the registered land." Vide section 85, sub-secticm 5. " I3ut if the applicant desires the certificate to declare, etc." Vide Rule 30. " (i) Every application requiring an entry to be made on the register in respect to any of the liabilities, rights and interests, that are by the Act declared not to be incumbrances, shall state the particulars of the entry required to be made. " (2) The evidence in support uf the application shall be left therewith, and the application shall be proceeded with in such manner as the Master of Titles shall direct. (Rule 29, m.a' Adcerse jMsscashu) m nfininst registered owner — No acqiiisi' t'\>n of title hy adverse poasesHion. 2.1, (1) A title to any land adverse to or in dcrofjation of the title of the legi-tci jd owner, shall not be acquired by iinv lcnf,'th of i)ossoHsion. (2) ]iiit this section shall not prejudice, 'is against any pi'rson rcgistere'l lu r'-st owner of land with a Possessory title only, any a.!'> i; j claim in respect of lenf^th of pos- session of any other purson who was in possession of the 1 ind at the time when the registration of such lirst owner took place. Imp. 38 & 39 v., c. 87, s. 21. Same as Imperial Act. As 10 " adverse possession," see Smith's Leading Cases, vol. ii. Nepcan v. Doe, page 5S4 ; also, " Jones on Prescription," page 17. A marked distinction is laid down in this section between a possessory title and an absolute or qualified one. Charley says, " Ii the time, under tiie Statute of Limitations, has begun to run against the person registered with a possessory title only before the period when he was registcreil, the time will contmue to run against him, notwithstanding the registration. This is merely a repetition of what has been stated in section 1 1. " The registration of any person as first registered owner of land with a possessory title only, shall not affect or prejudice the enforcement of any estate, right, or interest adverse to or in derogation of the title of such first registered owner, and subsisting or cajiable of arising at the time of registration of such owner; but, save as aforesaid, shall havj the same efi'ect as registration of a person with an absolute title." ii '■»l ' ■ fp 68 THE PROVINCE OF ONTARIO. Hi l# " In the case of persons registered with a qualified or absolute title, although the time may have begun to run prior to the registration, it will, immediately on the registration, cease to run (except, of course, as to interests excepted on the register). This is one great advantage of regis- tering an absolute or qualilied title." Mr. Holt also concurs in this view. (Registration of Title, 6^.) " Suppose a qualified title for ten years is registered, and five years before the commencement of the ten years, time began to run against the person registered ; in five years more the title of the person in adverse possession .v^uld have become absolute. The registration would appear to prevent time from running any longer, if no notice of the adverse title is placed on the register." (Charley, 172.) " The first part of this section applies equally to a possessory as to other registered titles ; and by guaranteeing land owners against encroacli- ment affords one advantage in registration. But inasmuch as a possessory title is founded on the actual possession of the applicant for first regis, tration, the section provides in effect that if it should turn out that such applicant was not actually in possession at the time of his registration, such registration shall not prejudice as against him the adverse claims of the person who was then actually in possession. With regard, however, to other registered titles, it would seem that although time had begun to run under the Statute of Limitations against the first registered proprietor before his registration, it will upon such registration cease tc run," (Holt, 63. (>4') Mr. a'Beckett has the followinjj i'l his note, page 109 : ♦' As to what acts constitute po.-sjssion, see Chisholm v. Capper, 6 VV. \V. & a'B. (L) 225 ; N. C. 22, 52, 60 ; Staufrhton v. Bro7vn. 1 V. L. R. (L) 150 ; G ..jc v. Wharton, 5 V. L. R. (L) 97. Per Molesworth, J. The. rights subsisting under adverse possession do not mean rights under the Statute of Limitations (Tl^e Real Property Statute, 1864, No. 213, sec. 18, et sea), but under adverse ptssession, the old strict legal meaning, and would not, therefore, include the case of a tenant at will : Robertson v. Keith, i V. K. (E) n ; I A. J. R. 14 ; and per Stephen, J. If it be conceded that the words ' adverse possession ' are to be interpreted with reference to the Statute of Limitations, still mere acts of occupation do not raise a presump- tion of ' rights acquired,' so as to invalidate a certificate of title. To raise any such presumption, there must have been a possession incompatible with a freehold in the claimant, and the acts of ownership must amount to evid- ence of such a possession : Staughton v. Brown, i V. L. R. (L) 150, 163. I^ut see contra. Murphy v. Michel, 4 W. W. & a'B. (L) 13, 19, where the Court was of opinion that the words ' adverse possession ' in a certificate of title, under Act No. 140, referred to No. 213, sec. 18, et seq., which had done away with the doctrine of non-adverse possession, and held that the only question to be considered was whether fifteen years bad elapsed since the right accrued to bring an action or make an entry or distress, whatever might THE LAND TITLES ACT, 1885. 69 1)0 the nature of the possession ; and per Fellows, J., in Stauf^htun v. Brou'n. I V, I^. K. (L), 150, i5y, where that )ii(1kc said that the only inquiry now is as to the fact of possession, and not as to its nature, and that when the wrong man is in, and the ritjht man is out of possession, the possession is 'adverse' within t'lc meaning of the Act. Thou^jh the possession need lint have hueii by out; person or by a series of persons claiming in the same right, it must be shown to have been continuous, and to have l)*;en con- nt'( ted with a desire and intention to complete the inchoate title ; Grave V Whiirton, 5 V. L. R. (L)(J7. Where the (Jflice of Titles has notice of a right claimed under adverse possession, a certificate of title will not be issued to the applicant unless the Commissioner is satisfied of the inva- lidity of tiie claim, or until the applicant has established his title by ejectment. " Scmblc, the holder of a miner's right is not such a tenant (per Barry, J., duhilniti, Stephen, J.); Miinru v. Sutherland, 5 A. J. K. i^')- Tenancy at will is an interest svithin the section, therefore, where R. entered into possession of land under a contract with a person from whom those seeking to eject him ileiived title, it was held that before they could maintain ejectment against K. they must demand possession from him ; Colonial Bank v. Roach, i V. R (L) 165; i A. J. R. 13C; Cunningham v. Giindry, 2 V. L. R. (E) 197. In the latter case, Mr. Justice Molesworth remarked on Calvert v. Pate, Arf^us, 8th August, 5th and 6th September, 1867, where the full Court is reported to have held that the word ' tenant' meant a tenant for years, not a tenant at will ; but see per Barry, J., Munro v. Sutherland, 5 A. J. R. 139, 140. The possession of a tenant of a mort- gagor under a tenancy created prior to the mortgage is not adverse to the title of the mortgagee. The interest of the lessee is that of a tenant whose possession is not advarse ; he is not obliged to attorn voluntarily to the mortgagee and cannot be ejected without demand of possession sufficient to put an end to the tenancy ; Colonial Bank v. Babbage, 5 V. L. R. (L) 462. The land included in the certificate is subject to all the interests of a person who is in the possession of the land not adversely, but as having purchased it without taking a transfer, and not only to his mere tenant interest; er Molesworth, J., Robertson v. Keith, i V. R. (E) 11, 15; i A. J. R. 14; and his Honour retained his opinion that the certifi'.ate is subject to all the interests of any person in possession, in Cunningham v. Gundry, 2 V. L. R. (E) 197. The section does not, however, protect an occupying tenant as to the Ijndlord's interest. Cullen v. Thompson, 5 V. L. R. (E) 147. " A tenant should not be advised to rely on possession, but should register his mterest when capable of registration." It has been decided that the filing of a p;.'tition under the .\ct for Quieting Titles is not such a pioceeding as will save the rights of a party contestant otherwise barred by the Statute of Limitations (Laing \. Avery, 14 Chy. 33). But under the present Act, on obtaining an absolute title m 70 THE PROVINCE OP ONTARIO. II from the Master of Titles, no title is acquired by any length of ponsebsici. Query, whether the fihng of application would taki; the case out of ilie Statute of Limitations and prevent the time running from the time of the filing of the application, In the caseof Price v. The Bolt and Iron Company (a), the plaintiffs ances- tors had been in possession so lon^ that li« accpiired a statutory tith?. Hu abandoned possession, and the defendants haviii>{ a Rood paper title, tDok possession. The plaintiff sued to recover the piopeity, claiminR that the title of the defendants had become extii)(,'ui .hed by the possession of those through whom the plaintiff claimed. The present enactment would have put a stop to this, had it been in force and tl.e defendants had obtained a certilicato for an absolute or perhaps a (pialilicd titlo. There seems some difficulty in l)eiii>; rc^iistered with a possessory title unless you are in possession, as the atii lavit imder rule 2 rciiuires " that the actual possession or receipt of the rents and profits thereof shall be in accordance with the applicant's title. " See Kule ,} (2) and l-Orm 5 (7). PART IV. Registehed Dealings with Re(iisteuei) Land. MORTGAGE OF REGISTERED LAND. Creation of charges, and deUcerij of certificate of charge. 3tt. (1) Every rogisterod ownor of land may, in the prescribed manner, charge the land with the payment at an appointed time of any principal sum of money eithtv with or without interest, and with or without a jKJwer ^vf sale to be exercised at or after a time appointed. (2) The charge shall be completed by the Master of Titles entering on the register the person in whose favour the charge is made as the owner of the charge, and the par- ticulars of the charge, and of the power of sale, if any. (rt) This case is in Q. B. D., Ont. ; but not yet reported. THE LAND TITLES ACT, 1886. 71 (8) Tho Master of Titles Hhall also, if required, deliver to the owjier of the charj^e a Cortificato of Charge, in tho prescribed form. Ini]). JW i*;: 3n was founded on the recomnienda.ic 1 of tho Hoyal Coiniiiission on KeRistraiion ofTith.'s, 1M57. It refers to nil ia.id, leasehold as well as fnohoUI. 'I'his is an extension of the principle of loRisterinf^ char^'es laid ilown in the Keport of 1857. An iiit --restini; hist(iiical sketch of the pm^'ress of the Law Hefnrm in this matter may bo seen in Charley, pages 174, 175. Tho system which this Act brings into force derives much of its value from tho new metho), rurm 41, Itiiplicd cnvcunnt to imif rluinirn. 27. AVhcre a llcgiHtered Charge is created on any land, there Hhall he implied on the part of the perHon hein^,' Itej^MHtored owner of the land at the time of the creation of the charj?c, Iu'h lieirH, executors, and administrators (unless there ho an entry on the register negativing the imjjlication), as follows : — (1) A covenant with the registered owner for the time being of the charge to pay the principal sum charged, and interest, if any, therecm, at the appointed time and rate ; (2) A covenant, if the principal sum or any part thereof is unpaid at the appointed time, to pay interest half-yearly at the appointed rate on so much of the principal sum as for the time being remains unpaid. Imp. 38 & 39 V. c. 87, s. 23 ; Victoria Act, s. 90. Same as Imperial Act. See Rule 21 as to application to be made by a trustee or other person for an entry on the register negativing the implied covenant. The h'oyal Commission on the Registration of Title, 1857, recommend that, "on the registration of the char^re, the registered ownership will be subject to the legal rights and forms incident to the charge, and either may be transferred independently of the other." Victoria Act, section go, enacts, "In every mortgage made under the provisions of this Act there shrill be implied covenants with the mortgagee and his transferees by the mortgagor binding the latter and his heirs, executors, administrators and tranferees that he or they will pay the principal money therein mentioned, ' etc. Mr. a'Becket has the following:— "That is 'naming' the heirs, executors, administrators, and trans- ferees of the mortgagor, any attempt to bind a transferee personally to pay the mortgage debt would be nugatory. The object of the Act is not to create a new liability but to make the transferee liable to covenants run- ning with the land, and covenants such as those here specified would not run with the land (per Fellows, J.). The meaning of the section is plain ; it binds the estate of the borrower in the hands of his heirs, executors, administrators, and transferees, but does not make them personally TIIK liANIi TITI.KS ACT, IHM/). 78 ronponsibU) (per Stophcn, J ). The purcliascr of a nuirlK.iK"''''' inlorenl \s not iKTsonally liablt; to the mortKaneo iimlrr this Ai I lo pay tlic mnrtKa«e! i|(|)| : AuitriiliiiH Difoiil lUiil Sturt^n^^f Hunk v. LorJ, i \' . \.. M. (I,) ji. The covenant for payment is uxpruditoil in tho form of morlKaKu ; the i'liplicatum appari-ntly n-fors to the transtnissiliility of tho obligation to and III lavoiir 'if rt'prrsi;nlativt'H wiiicli is not oxpicsst'ij, I'df pn'.cribt.'d foiin wf niortijagc, ace isth Schcdulu, /""/. Ah to what covenants tnav be c\prfist!il in a inortKnyo. sco sci . in.j, notf (a) f'ust" I'liiltT the law as lai>l ilnwii in the cases fif I'riif v. The (irf^il Wtiterii H. Co., 10 M. & \V. 244 ; id I-. J. ICxch. 87; CordiUo v. Wtgmilion. 3 C. L. D. joj; Cook V. Fowl.r. 7 L. U. II. I.. ^7 ; A'l' Roh.rts. i., C. I.. D. 49, C A.; if inortKa^;or sIkiuIJ nunc, to paj- interest durint* tliecnrrt-ncy , interest, at intinst, woubl cease to be payable, ami only would become pay.able as daniaxi s for th>j noMi>ay- nient of money. The effect of this decision is that tin? lii>;her la'e named in the mort),'a>^e would cease to be payable at tht; maturity of tin; inortnane, and in (Jntario only six per cent, could bo recovereil. Under tho prtrsent section it wouM seem that the higher rate would be recoverable even after the maturity of the mort^;a^!(■, as the sub-set tion (j) says, " to pay interest half ye.irly at the appointed rate for so much of the principal sum as for the time being remains unpaid." t) Implied corciuuit in case of leaavhohla to pay rant, etc., and indemni/if oirner of charge. a^i. Where a registered charge is created on any lease- hold land, there shall he implied on the part of tho person hcing registered owner of such leasehold at the time of the creation of the charge, his heirs, executors, and adminis- trators, unless there he an entry on the register negativing the implication, as follows : — (1) A covenant with the registered owner for tho time heing of the charge, that the person heing registered owner of such leasehold at the time of the creation of the charge, his executors, administrators and assigns, will pay, per- form and observe the rent, covenants, and conditions by and in the registered lease reserved and contained, and on the part of the lessee to be paid, performed and observed ; (2) And will keep the owner of the charge, his heirs, executors, and administrators, indemnified against all actions, suits, expenses and claims, on account of the non- f; Wf iiN « 74 TIIK I'llOVINCK or ONTAUIO. pnymrnt of tlic mul rent, or any part tlirrcof, or tlic bronclj pf tlx- Hiiid cuNt'iuiutrt or roiKlitiouH, or any of thuui. Imp. M iV :\u V. ••. 87. H. *2I. Same an Im|mr>.tl Act. Sef K'ulfl J I, SB I') implicJ covonnntn beinK ncKalivivl. "It miiMt ftf!i|iiiiitly happen that tlio ri;Kitteit«il pri)i>iiitor it not flin beiicli i.tl iiwiior <>f thu linil, aifi in mu h n cnnu uh in cro.i(in|{ the c'har»{i) ht; WDitlil only Im* ;ic:tinK ai< n triiHtt!'^ for the bitnoticiary, ho would iloubtle^is insist on an entry beinK m.nlu on tho rcKinter neK>itivinK the inipli' t covrnantn iimler seitionn ^7 ami iH, In cane tho nece!i8.nry covenants couM bo ont«T«nl into by a m-paratc unrenisti^red inntrumont. rinil wouM not be notiieil nn tho rcxiHter," Molt, 67. " Unit ss thiTc be an entrv on the re>?i»ter, etc , negativing tho itnplica- ti.iKo 153. " These worils wonl I apparently admit of the introduction into an instru- merit nf valid cnM.'nants an any ihiiin whiili w.uild interfere with the power of landlords and tenants to ina.k<: tlu'ir own bar>;ains. I look upon tlie implied covcrants ind powers niention.tl in tho Act as only eiiablini; -.Iiort deeds to be made.' Uuckuall v. Keid, 10 S, A. L. K. 188, My," (aUeckett, pa«e 155. J f'utni }>ii (HCHcr 0/ rlinnfi!. *4U, Sulijt'tt to any f-ntry to tlio contrnry on tlio rcf^istir, the n'j^istorc"! owntjr of a rt>;.,Msteri!(l cluirfre may, for tlio purposu of ohtaininj,' satisfaction of any monoyH duo to him under tin.' charj^o, at any time din*in<^ tho oontiiniancc of his charj^c, (inter upon the land char;j;t'd, or any part thereof, or into the receipt of tho rents and profits thereof, subject novertiieless to the right of any persons appearing on the register to be prior incumbrancers, and to the liability attaduKl to a mortgagee in poBsession. Imp. 38 it I3U V. c. 87, s. 25, TIIR LAND TITLKH ACT, 1885. 75 S«in«M Itnpt-ri.il Act, Sen Kiilfl it. Thii Act circiiiiiHtanceH in and under which ho lui^lit enforiM' the snnie if t!ie lund hml he»n trunsf( ried to him l>y way of inortj^ii).;e, suhject to a provino fi»r redciuption on payment of the money named at the appointed time. Imp. 5JH Jlc ijy V. c. 87, a. 2(5. See Uul« ii. In Australia a mothoil ia provideil for offeiinK tho property for sal« and netting a foreclosun- under soc 98 of tlic Victoria Statuti', it has been h'-ld in Onig V. Walmn, 7 V. L. U. ^lij yy, " that theru can In; ti') foreclosure suit respecting land under the statute, the procedure prescrilied by this statute must be Mtrictly follctwed." a'Heckett, pane 141;. Rt'vuuly 0/ owner of chartje nith a jumrr of snlr. :il. Suhject to any entry to tho contrary on the ref^isttr, the rej^iHttreil owner of a ret^^intered charge witlt a power of Hale may, at any time after the; expiration of th(.' aiipointfd time, Hell and trannfer tlio land (that is, the interest therein which is the suhject of the charge), or any j)art of such laud, in the same manner as if he were the registered owner of the land, to the exteJit of the; interest tlu-rein aforesaid. Imp. :i8 \' \VJ V. c. 87, 8. 27. Sie h'ult! 21. In re Richardson. L. R. \i liq. 398, as varici: i^. K. ij \'j\. \.\i, it w.is held, under the Act of 1862, that when A. haviuR a registered indefeasible title, created several successive inortKa^es, all of which wito duly entered on the rcRister, a purchaser from the first mortgagee selling under his power of sale was entitled to be registered as an owner in fee with an indefeasible title. See, also, In re Winter, L. H, 15 Eq. 156. I IMAGE EVALUATION TEST TARGET (MT-3) 7 // {•/ .■'■^ /^ ^% (/j '/, 1.0 I.I 1.25 " IIIIM 1 2.5 ■■ *= liJl ,' '*'° llltt IIIIIM 1.4 111 1.6 V] <^ /i o e-1 c^. ^a -tfi ^d" o ^m w /^ ■'W /A Photographic Sciences Corporation A^ \ ■^ WrS^ o '% V ^ a^ <^ '% 23 WEST MAIN STREET WEBSTER, N.Y. 14580 (716) 872-4503 % ^4P i/x 70 THE PROVINCE OF ONTARIO. Priority of registered charyes. 33. Subject to any entry to the contrary on the register, registered charges on the same land shall as between themselves rank according to the order in which they are "ntored on the register, and not according to the order in which they are created. Imp. 38 & 39 V. c. 87, s. 28. This section and section 33 are taken from section 28 of Imperial Act. See Rule 21. The registering of a charge shall give it priority atid not the creation of the charge. According to the Regis'.^y Act the registering of the charges would not give priority if the pers' di rjg so had notice of a prior charge. See K. S. O. cap. iii, s. 74. Discharge to he no* e'^ on reyiater. 33* The Master of Titles shjia. on the requisition of the registered owner of any charge, or on due proof of the satisfaction thereof, notify on the register in the prescribed manner, by cancelling the original entry or otherwise, the cessation of the charge ; and thereupon the charge shall be deemed to have ceased. Imp. 38 & 39 V. c. 87, s. 28. Taken from Imperial Act. This is similar to the provision in section 23 for cancelling on the land registry the entry of encumbrances affecting the land at the time of its first registration. The 23rd General Rule is as follows : — " Where the cessation of a charge entered on the register is required to be notified under section 33 of the Act, the application shall be signed by the registered owner of the charge, or a registered owner interested in the land, and shall be attested and duly verified. " (2) If the application is not signed by the registered owner of the charge, due proof of the satisfaction of the charge shall be left with the app.'ication, " (3) The Master of Titles, upon being satisfied of the cessation of a charge, shall, where convenient, notify the same by cancelling the original entry, or shall otherwise enter on the register the fact of such cessation. (Rule 22, made under Imp. Act 38 & 39 Vict. cap. 87.)" THE LAND TITLES ACT, 1885. 77 Section lOo of the Victoria Act is as follows, with Mr. a'Beckett'y notes thereon : — " Upon production of a memorandum signed by the mortgagee or annuitant, or his transferees, and attested by a witness 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, tlie registrar shall make an entry in the register book 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." Mr. a'Beckett's notes : — " It is not always possible to obtain the memorandum required by this section, and it has been dispensed with. The registered proprietor of a mortgage died, and the mortgage money was paid to his widow, who had taken out administration ; but who died before having been registered as proprietor of the mortgage without having signed any acknowledgment ot payment. She made a wdl and appointed her son — who was aware of the payment having been made — her executor. " An entry of a discharge of the mortgage was made on proof of pay- ment by statutory declarations from the mortgagor and the executor, and production of the letters of administration and probate. Sedfr, 59. On tender by the mortgagor of the amount due as principal and interest the mortgagee is bound to take it ; if he does not he is subject to an equity suit to obtain, not a redemption, but an order to compel him to receive the money and sign the memorandum of discharge. Greig v. Watson, 7 V. L. R. (E) 79, 85. "Where the mortgagees are trustees for a building society, which, since the registration of the mortgage, has become incorporated, under the Buildings Societies' Act, 1874, (No. 493), the memorandum of dis- charge should be given under the corporate seal, and accompanied by a certificate from the solicitor of the society, or a statutory declaration from the secretary, or from one of the mortgagees, stating that the money secured by the mortgage has been advanced out of the funds of the society. Where the mortgagees are trustees for a friendly society, and the trustees have been changed since the registration o;' the mortgage, the memorandum of discharge should be in the names of and be signed by the trustees for the time being, who ought to be described as the persons for the time being entitled to receive the money owing on the mortgage, and should be accompanied by a statutory declaration from one of the mortgagees, or from the secretary of the society, stating that the money secured by the mortgage had been advanced out of its funds, and also by 'i mmmm^s^ 78 THE I'ROVINCK OF ONTARIO. 11 ii a ciTtificate from iIk; registrnr f)f fiioiidly societies, showing who were the trustees .it the date of the memorandum of discharge. " The pr.'ictice is similar where the mortgaRces ,ire trustees for -.m unin- corporated buiKlin^^ soci(ny. iMit a certificato from the sohcitor cf the society statin;.; that the money secured by the mortKa(,'e had been advanced out of its funds, would b(; deemed sultkient. i>(■(/^^ 59, Go. "The term ' redemption suit ' is not jiropcrly applicable to a suit to obtain the discharR ; of a mortRaRe under the Act. If the mortgaRee, on tender of tho amount due to him, will not sign the necessary memorandum of discharge, a suit will lie to compel him to do so; Greig v. Watson, 7 V. L. K. (E) 79. lUit this distinction was not taken in a previous case before the Judicial Committee of the Privy C(juncil, where an ordinary suit for redemption was treated as the mortgagor's appropriate remedy ; National Bank of Australasia v. United Hand in Hand, etc., Co. 4 App. Cases, 391." TR.VNSFERS AFTER LAND IS DROUGHT UNDER THIS ACT. Transfer of land, and delivery of land oiijlcatc. {$4. (1) Every rep;i8terecl owner of land may, in the pre- scvibed manner, transfer such land or any part thereof. (2) The transfer shall be completed by the Master of Titles entering on the register the transferee as owner of the land transferred ; and nntil such entry is made the trans- feror shall be deemed to remain owner of the land. (3) Upon completion of the registration of the transferee, the Master of Titles shall, if required, deliver to him a Lnnd Certificate in the prescribed form. (4) Where part only of the land is transferred, the Master of Titles shall also, if required, deliver to the transferor a Land Certificate containing a description of the land retained by him. Imp. 38 & 39 V. c. 87, s. 29. Same as Imperial Act, except that in the Imperial Act, " proprietor of freehold land" is used. " Prescribed manner.'' Rule 24 is as follows : — " The instrument by which any transfer of land shall be made, under section 34 or 39 of the Act, shall be left in the office, and the execution •hereof by the registered owner shall be attested and duly verified. (2) A note shall be made on the registered description of the land retained, referring to the part disposed of." THE LAND TITLES ACT, 1886. 70 ••A Which is part of the Imperial r'ule 23. The Legislature have omitted that part of the Imperial Knle in which maps are required. This section is founded on the Report of the Royal Commission on Registration of Titles, 1S57. Mr, Holt suggests that in order to prevent any quesiion being raised as to identity or as to mines and minerals, a special condition should be prepared, and all dealings should be made subject to that condition. (F'age i6i). The transfer is conducted in the simplest manner and without any delay, the foi'ms 25, 28, 29, and Rules 21 and 24, giving the neces- sary instructions. To facilitate the transfer of land has been the object of almost all the R 'yal Commissions on Real Property that have taken place in the last fif.y years. It was also the object of the Canada Land Law Amendment Association, and the agitation both in Ontario, Manitoba and the Do- minion Parliament. The present Act affcctuates the object by reducing the title of land to a system of book-keeping, and by enabling a transfer to be made in ordinary cases practically bv merely running a pen through the name and description of the transferor and adding those of the transferee. In case of a transfer of parcels, the lund has to be identified and a new folio opened for the transferee, but otlierwise there is the s'lme simplicity in the one cuse as in the other. When the transfer has b en entered on the register, the latter, and not the instrument of transfer V. .11 be the evidence of title, and the instrument may be destroyed under Rule 42. By the 33rd General Rule, it is provided that a " Land certificate to the transferor under this section may, if the Master of Titles thinks fit, consist of his subsisting land certificate, altered to correb,.ond with the register," and "no new land certificate shall be issued till the old certificate is delivered up, except as provided by section 80." See Forms 28, 29, 30, 31, 32. There are two kinds of transfers contemplated by our Act, which is somewhat different from the English Act. First, a voluntary transfer under section 34, and involuntary transfer under sections 52 and 53, Estate of tranferee for rnliiahle considi'ration of land with absolute title. 35« A transfer for valuable consideration of land re blis- tered with an Absolute title shall, when registered, confer on the transferee an estate in fee simple in the land trans- ferred, together with all rights, privileges, and appurten- ances belonging or appurtenant thereto, subject as follows : — (1) To the incumbrances, if any, entered on the register ; and :fli 80 THE PROVINCE OF ONTARIO. (2) To such liabilities, rights and interests, if any, as are by this Act declared for the purposes of the Act not to be incuiubrances (unless the contrary is expressed on the register), But free from all other estates and interests whatsoever, including estates and interests of Her ^fajesty, her heirs and successors, which are within the legislative jurisdiction of this Province. Imp. 38 & 139 V. c. 87, s. 30. See section 9, from which this section is for the most part copied. Sub- section 3 of section y is omitted in this section, from which the question naturally arises, how does the transferee come to have a clearer title than the first registered proprietor or owner? "The answer will be found in the Report of the Royal Commission on Registration of Titles, 1S57, fro.n which the framers of this measure appear to have drawn inspiration more freely than from any other source : — ' As regards the sale and transfer of land it is clear that much good would not be obtained by merely registering the fee, or, in other words, the legal title, unless the purchaser could dispense with inquiry into the equitable title, witn its incidents. Unless a purchaser be protected from the inquiry into trusts, there will not be any advantage to him. In other words, if trusts am. limitations are to continue to form part of the title in all respects as they now do, the registry of title will be useless, or at least not worth the danger and difficulty attendant upon the introduction of a new system. ' Equitable interests cannot, consistently with the objects to be attained by registration of title, bind or affect the ownership of a registered pro- prietor, unless such interests are of his own creation ; but they may be allowed to confer a right against the land whilst in the possession of the owner who created the trusts, and in that of his representatives, or volun- teers claiming under him. When the land is sold without fraud the equities and trusts mnst be transferred to the funds arising from the sale, and so the purchaser will take the lands discharged of the trusts. But they may be protected on the register of title by the trustee of the family settlement, or by a trustee to be named by the Court of Chancery. Sales by the settlor or the trustee in contravention of the trusts may be prevented by entering an inhibition or caveat. Thus the existing system of settle- ments by which the limitations of the settlement modify and become part of the title, will be unchanged under a registry of title, so long as the land continues in the possession of the settlor or volunteers claiming under him, or the trustees of the settlement. Upon a sale without fraud, these limi- tations and trusts will attach to the funds arising from the sale.' THE LAND TITLES ACT, 1886. 81 " The commissioners then proceed to show that, under the existing system, care is always taken to provide that the purchaser should not be obli^'ed to see to the application of the trust mone>s, and that the trustees should be able to give good discharges. Property, too, is often conveyed to the trustees by one deed, while trusts are declared by another. And what is the object of these complicated proceedings. exc>pt that the trustees may appear lo the purchasers, or be treated by them, as absolute owners? Nor should it be forgotten that there are millions of money in the funds, and in rail- ways, canals, docks, and other undertakings, left to a great extent in the names of the trustees, ;ind yet it has been found that property so circum- stanced is pr.ictically safe. " A comparison of r -ction 85 (i) of this Act with section 33 of the Land Registry Act. 1862, wi uld seem to show that an enormous amount of labour will bo saved by the application of the simple principles laid down by the Commissioners of 1857 in the passage just cited, principles which appe.ir tc have been entirely ignored in the .Xct of Lord Westbury. "A recent work of authority (;?•), commenting on sub-section (3) of section 9, observes : — ' Upon a transfer by the registered proprietor for valuable consideration a purchaser would take the land discharged from all the "equities and claims" specified in tie sub-section; "and such a transfer could only be prevented by cautious inhibitions or restrictionsentered upon the register." The passp.ge cited above from the Report of the Royal Commission on Registration of Title, 1857, is then given in support of this view. " In a note to the present section, however, th" writer of the work in ([uestion thus ciualifies his previous opinion : — ' Although there is nothing in this section answering to sub-section (3) of section 9. it can hardly he contended that, in the case of a trustee pur- chasing land with his trust moneys, and taking a transfer to himseil as registered proprietor, or in similar cases, the land, whilst in the hands of the trustee, woiiki not be liable to the claims of his ccsfiii que trusts. It is no object of an indefeasible title to defeat in the favour of the registered owner rights created by himself, or to which he was personally subject prior to his registration, or to destroy, as between trustee and cestui que tntsts,\.hc familiar maxim of equity, "once .'i trustee always a trustee." What the Act does is to secure a tiansteree tor value against all unrejjis- tered claims, except such as are createil by himself, and to enable him to transfer the land for value free also from these latter claims. Further than this, it seems hardly possible to make an\- litlo mdefea.iible.' (/;) " Assuming that a cestui que trust can be correctly described as ' claiming under tliC trustee, and the trustee as having created the trust,' the above passage appears to go the length of saying, that ' although there is nothing in this section answering to the sub-section (3) of section 9,' this section is M it (ff) Holt, 45- 6 (h) Holt, 71. T^np"«i tm H2 Tin; I'llOVINfK t)K ONTAIIK). ! to 1)1' road as if siib-soction (j) of section 9 iiad liocn inserted in it, — a rather doubtful construction, considcrinK th.it the 3rd subsection of section h.isevidiMitly been delil)erateiy, and for a lielinito jmrpose, omitted l)y the I.enisiature from this section. "Hut a cestui que truat very seldom 'claims under' his trustee; a trustee has very scMom 'created' the claim of his ciilui que trust ; he is usually a mere nominee of the settlor. liven if sub-section (3) of section 9 h.id been inserted in this section, it is submitted that the cestui que trust would, in the case of a purchase by the trustee of land out of the trust moneys, be o'lli^ed to protect his interests by cautions, inhibitions or restrictions enterc^l on tlu; register, or by the unregistered dealinj;s. " It is clear that no notice of the trust in (juestion could appear upon the re^iistcr. (Section 85 (1). " but the Act does not destroy trusts, in the case of a bona fide transfer for value -it merely ivjnores them. It may be added, that it is usually made a condition of the investment of trust moneys in land, that the cestui que trust shall have given his consent ; and this consent would, of course, be withheld if the investment were not a safe one, or if there were any apprehension that the trust would be effaced. " It will be perceived that the language of the Commissioners of 1857 applies to fraudulent sales by trustees, not to fraudulent purchase by them; but it is submitted that the same principle is applicable to both. The trust will not appear upon the register, and the cestui que trust must protect himself by cautions, restrictions and inhibitions." Estate of transferee for valunhlc consideration of land with qualijicd title. 36* A transfer for valuable consideration of land regis- tered with a Qualiticd title shall, when registered, have the same effect as a transfer for valuable consideration of the same land registered with an Absolute title, save that such transfer shall not affect or prejudice the enforcement of any right or interest appearing by the register to be excepted. Imp. 38 & 89 V. c. 87, s. 31. In the Ontario Statute, while they have copied the Imperial Act, they have left out the word "freehold " in all the sections, 34, 35, 36, 37, 38. See section 12. TIIK I.AND TITLKH ACT, 18H5. H Kutiite of trdHn/crce for ralimJtle conKiilcrutiini of bind with ponsrHHorif title. 117. A traiiHfcr for valuable ooiisidinitiDn of land roRiB- terod with a I'osHoHHory title bIuiII not affect or prejudice the enforcement of any ri^^ht or interest adverse to or in derogation of the title of the lirHt registered owner, and stiltsiHtinff, or capable of arisinfj;, at the time of the regis- tijition of Hucli owner; but, save as aforesaid, siuill, when icjlistered, have the same effect as a transfer for valuable eonsideration of the same land registered with an Absolute title. Imp. 88 c't 89 V. c. 87, s. 82. See section ii. Estate of voluniarrj transferee of land. :i.H. A transfer of land registered under this Act, made without valuable consideration shall, so far as the transferee is concerned, be subject to any unregistered estates, rights, interests, or equities subject to which the transferor held the same ; but, save as aforesaid, shall, when registered, in all resi)ects, and in particular as respects any registered dealings on the part of the tranferee, have the same effect as a transfer of the same land for valuable consideration. Imp. 88 iV 39 V. c. 87, s. 83. The effuct of this provision is to ^ive n voluntary transferee an inde- feasible title subject tu the equities of the creation of the transferor, This is in conformity with the views of the Royal Commission on Registration of Titles, 1857. " Equitable interests and trusts of the registered owner's own creation may be allowed to ' confer a rigiit against the land ' whilst in the possession of volunteers chiiminf[ under him" Charley says, page 189: — "The effect of this section is to subject the voluntary transferee from the first registered owner to the same equities to which under sub-section 3 of section rj the first registered ownerwas subject." Holt says, " A voluntary transferee would be entered on the register in the same terms as a transferee for value, and it would seem that his transferee for value would upon being registered, take indefeasibly. rii TW-T* 84 THE rUOVINCE OF ONTAUIO. •' Undrr i.j Kliz. cap. 5, a volnntnry sottlenicnt by n pemon virtnallv iimolvent or l.irKi^ly indebted at the timu is void a^ainAt < reditorN and by thi! 91st section of the Haiikruptcy Act. i8()0, voluntary conveyances by a trader are void as aK'ainst his trustee in i)anl{istrar would have no means of knowing whether a transfer were vohintary or for value, for the presence or absence of a consideration express<'i| jti the dc'ed would be no proof of the f.ict. A voluntary transferee would ho eiitereil on the rexister in the same terms as a transferee for value (section j^), and it would seem that upon tlu; vohint.iry transferee himself transferring for value, his transferee would, upon bein^ rej-islered. having ren.ird to the special wording of section 38, and to the provisions of section 35, tako indefeasibly, thon^h the settlor mi^ht be insolvent, the Statut.; of ICliza- beth ami the Hanlvrupt Act notwithstandiu);." (Molt, page 73.) See section 99 of present Act. TUANHFKRH OK LK.XHKMOLDH INDKll THIH ACT. TrdUHjer oj leasehold land and dclirery of ofliee lease. :I1I. (1) Every registoreil owner of any leasohold land may, in tlio preHeribed manner, transfer the whole of liis estate in such land or in any i)art thereof. ('2) The transfer shall he c()mi)let(Hl hy the Master of Titles entering; on the rej^istiT the tran-^feree as owner of the leasehold transferred, hut until such (uitry is made the transferor shall be deemed to renniin owner. (3) Upon completion of the reoiatration of the transferee, if the transfer includes the whole of the land comprised in the registered lease relating to such land, the transferee shall be entitled to the olHce copy of the registered lease. (4) If a part only is transferred, the Master of Titles shall, if recpiircd according to any agreement that has been entered into between the transferor and transferee, deliver to the one the office copy of the registered lease and to the other a fresh office copy of such lease, each of such copies shewing, by endorsement or otherwise, the parcels of which the person to whom such copy is delivered is the registered owner. Imp. 38 c^' 31) V. c. 87, s. 34. Tiir. LAND Trrr.r.H act, IHH.'S. 8fl 8«m0 M Imptrial Act. Ill ihe prfsirilu'd iiinnnor. lioe Uule i.\, which rfifurH to le.ifielioM hh will as ln'chold, and I'ormH iH, jij, jo. St'u, ultto, as to ulhcn copioH 'if lu.kso, Rulo J4 ami l''i>riii 41. F.Htdtr 0/ tninHj'frt'i' for riilituhh' (UntHiilinition of IniHrholtl Idiitl with a fli'dnrntinn nj' (ihrntliite title 0/ h'HHor. 10. A trauHfcr for viiluiihlc conHidcnitioii of leasehold liind re;j;iHt('r('(l ^vltll a d(!t>laratioii that thu Ichsdi* hud iiii Al)H()luti! titki to ^Yiiui the lease undef whicii the land is held, Khali, when rei^'istered, he deemed to vest in the transferee the possession of the land transferred for all tho leascdiold ijstate descrihed in the rej^istered lease r(datin<^ to HiU'h land and tlien unexpirijd, with all implied or expressed ritj;hts, i)rivilef^('s and api)urtenatieeH attached to such estate, hut suhjeet as follows : (1) To all implied and express covenants, ohlif^ationH, and liahihJes incid(>nt to such estate; (2) To the inenmhrances (if any) entered on the register; (}}) To such liiil)ilities, rij^iitH and interests as alTect the leasehold estate and are \>y this Act declared for tin; puri)oses of tho Act not to he ineumhrancf.'s in tlie ease of rej^istered freehold land (unless the contrary is expressed on the register) ; Jjut free from nil otlior estates and interests whatsoever, including any estates and intfrests of Her A[ajesty, her heirs and successors, wiiich may he suhject to tlie lej^islative authority of this Province. Imp. Act. yS, 31) V. c. 87, s. ',i'>. Tliii is similar to section 17. It sviil Ije n-'ticd that sub-section 4 nf suction 17 is omitted. Witii lonR leases those provisions with regard to leasehold lands will be of benefit, but in Can;. da there is little desire to hold leaseliold property, as it is hard to dispose of on account of the risj in the valiii: of thi; property accruing to the ben fit of the owner of the freeh'dd. ;1 1 ^w Till. irioVINiK or KNTAItlO. Ettate of iviinnfori'i' for viiJunUU' rouiiiiliratinn n/ U'aHchdd lund iritliiiiil It ihtliirntiim of tiflf of IniHor, ■II. A ti'uiiKrcr I'm' viiliiiihlc ('niiHidcnition of loiiHi'lmld land reuiHtct'oil without a decliinition of tlio titlo of tlio IcHHor, hIihU not iillVct tlu! I'Jiforct-mt'ijt of any I'htatts rij^lit or intoviist iin'cctiii;.^ or in (li'ro;.^atii)n of tlio title of tliu IcHHur to K'l'iKit tho l('UHc> under wliich the hmd is iicld ; hut, Hav(! art aforesaid, sliall, when re^^iHtered, hav(; the Hiinio otTect an a tranwfer for vahiahU) fonsich-ratiou of tho name hmd ro;^iHt(U'ed with a dechiration tliat thu luHHor had an Al»Kolule titlu to ^raut thu luanu under whicdi tho hmd is hehl. Imp. M8 \' 30 V. c. 87, h. 37. Same as Imponal Act. Sue section i8 and notes on same, and on sections 35 and 36. EnUite of tmuafercc for ralunhlc coiiHidrrntiou of IniHcholiI html icith a dechiration of quaVulvd (Htf) (thiioltite tith' (f h'HHor. 4ii. A transfer for vuluahlo consideration of leasehold land re<^istered with a declaration that the lessor had a Qualilied titlo to ^i'lint tho kase under which the land is held shall, when n>}j;istered, have tho same effect as a (ransl'er for valual)le consideration of the same land regis- tered with a declaration that the lessor had an Ahsolute title to grant the lease under which the land is hu'ld, save that such transfer shall not affect or prejudice the enforce- juent of any right or interest appearing hy tho regit-ter to 1)0 excepted from the effect of re;^'i8tration. Imp. 38 & 3!) V. c. 87, s. 30. The lieadiiiR is peculiar — " (junlified absolute;" it is the same as the English Act, and would appear to be n rnistake. See section ly, ami imirs to sections J5 and jg. rriH t.ANP Tirr.FH \rr, 1^85. I'.Hiitli' of I'Dliifititrif li)iHHl):ri'i' of li'iiHilialtl lnuif. m i:i. A triiiisftr nf M ri't^iHtcicd Iciiscliolfl iiitrroht in Iiiiid inmlc witlioiit vii1iiu))Il> coiisidit'iitioii sliiill, ho fur iih tlic triiiisl't'nuiHcoiicenu'il.lx) Hul)jrct tDimy iiurj't^iHtcrrdcstiitt.'.s, ri^'litrt, iiitiTcrttH, or cquiticH sultjrct to wliich this tnuiHftror lichl the Hiiinti ; but, hivvc hh iiforcsiiid, hIiiiII. whvu rcKiHti'rod, in nil rcsprcts mid in piirticnliir iih ri'Mju'cts any rcj^isti ri'd dtnilin^s on tlic part of tliu transfiToc, have tliu Haint! ilTcct as a transfer of the Hanio land for valuublo c(«m- sidrration. Imp. }J8 &, 89 V. c. 87, 8. »8. See section jS. i liiijilii'il ((iri'itai:!' on tninHhr oj' h'dmliolil cHtdtix. II. On tiic tranHfcr of any rcyiHtercd Icasiihold intcreHt in land under tliiH Act, unless there be an entry on the rcgiHter nej^ativing Huch iini)li('ation, there hIuiII be implied as follow 8 : — (1) On the part of the transferor, a oovonant with the transferee that, — notwithstanding anything l)y sueh trans- feror done, omitted, or knowin^^iy sulTered, — the rents, eovonants, and conditions resti'ved and contained by and in tlu) ri'j^'istered loasi", and on the part of the lessee to bo l)aid, performed, and observed, liave been so \ id, per- formed, and observed up to the date of the transf(!r ; and (2) On the part of the transferee, a covenant with the transferor, that he, the transferee, his executors, adminis- trators, or assigns, will pay, perform, and observe the rents, covenants, and conditions by and in the registered lease reserved and contained, and on the part of the lessee to be paid, performed, and observed, and will keep the trans- feror, his heirs, executors, and administrators, indemnified against all actions, suits, expenses, and claims on account WW I 88 THK PROVINCE OF ONTARIO. of the non paymojit of the said rent or any part thereof, or the breach of tlie said coveimntH or conditions, or any of tlicra. Imp. 38 &^ 39 V. c. 87, s. 39. Ily 25th General \i\\\c, " Every application requiring; an entry to be male on the register negativing the implied covenants referred to in section 44 of the Act, shall state the particnlars of the entry reeiiiired to be made, and shall be signed, attested and verified, in the same maimer as is rt(iuired with respect to the execution of the instrument of transfer. The verification may, where practicable, be made by the sane affidavit as thai verifying the instrument of transfer." TRANSFER OF CHARGES. Transfer of charges on rcr/ister. (■ 4*5. (1) The registered owner of any charge may, in the prescribed manner, transfer such charge to another person as owner. (2) The transfer shall be completed by the Master of Titles entering on the register the transferee as owner of the charge transferred. (3) The Master of Titles sliall also, if required, deliver to the transferee a fresh Certificate of Charge. (4) The transferor shall be deemed to remain owner of such charge until the name of the transferee is entered on the register in respect thereof. Imp. 38 c*;- 39 V. c. 87, s. 40. Same as Imperial Act. The object of this provision was to have the same mode of transfers for rharges as registered land, according to the recommendation of the Royal Commission of 1857. See Rule 22, which is as follows : — "The instrument by which any transfer of charge shall be made, under section 45 of the Act, shall be left in the office, and the execution thereof by the registered owner of the charge shall be attested and duly verified." As to certificate of charge, see Form 41 ; also, transfer of charge, Form 26. TIIR LAND TITLES ACT, 1885. 89 Mr. Holt says:— " The proprietor of a charge is entitled to a certificate of charge, which is to be 'prima facie eviHence of the sevcr.il mntters thotfiii cont.iined ' ; and if such certificate is ' lost, tnisiail, destroyed or dtlivercd up to the registrar,' a new certificate may be granted in its place. \ fresh certificate may be delivered to a transferee of a charge, '.'he form of certificates of changes is provided for by Rule 33." I 1 i i TUANSMISSION OF LAND AND CHAROES ON OWNER S DEATH. Transmission, on dedth, of freehold land. 10. On tlio death of the solo rej^istcrcd owner, or of the survivor of several joint registered owners, of any freehold land, such i)or9on shall he i'ef,nstercd as owner, in the place of the deceased owner or owners, as may on the application of any person interested in such land, he appointed hy the Master of Titles, regard heing had to the rights of the several persons interested in the land, and in particular to the selection of any such persons as may for the time heing appear to the Master of Titles to he entitled, according to law, to he so appointed : Hul)ject to an appeal to the Court in the prescribed manner by any person aggrieved by any order of the Master under this section. Imp. 38 & 39 V. c. 87, s. 41. Same as Imperial Act. This section is based on section 7S of the Land Registry Act of 1862, the language of which, in effect, authorizes the appointment of a real repre- sentative in the case ai freehold lands. " A warm controversy raged round the section in the House of Ccm- mons. The heir or devisee, the executor or administrator, ' the person or persons, not being under the age of twenty-one years, or of unsound mind, having a right to an estate in fee in the land,' the ' person appearing to the registrar to be entitled according to the law,' all had their claims advocated. " The last-mentioned claim was practically admitted by the Attorney- General, who, in Committee, moved the insertion of the words, ' regard being had to the rights of the several persons interested in the land, and in particular to the selection of such persons as may for the time being appear to the registrar to be entitled according to law to be ' ^ appointed.' ^n-iPfP li . 90 THE PROVINCE OF ONTARIO. " The recommeri'tation of the Royal rommission of 1857 was as follow — ' Upon the death of any registered owner, a real representative shoii d be appointed, upon whom the registered ownership shall devolve. Th representative will he ordinarily the executor (?) ; hut vhen an executor has n<>t been named, or when he has dierl, or renounced piobate, power will be given to the parties interested to apply to the registrar or a judge to supply the place of the decease 1 registered owner, and U) enter the name of some prober person in his stead.' "The Land Transfer (Jominissioners of 1869, advised that ' when the registered owner dies, a representative ' (the marginal note says, 'real' representative) ' shall be entered in his stead. This will either be his executor, or some person agreed on by persons interested in the registry, or appointed by the Court of Chancery.'" The judicial powers conferred on the Master of Titles in this seclion are very extensive. See Rule 27. " Applicant and his solicitor," in Rule 27, would seem to imply that an applicant must have a solicitor. 1 I 1 i Transmission, on death, of leasehold land or of charge. 4'7. On the death of the sole registered owner, or of the survivor of several joint registered owners of any leasehold land or of any charge, the executor or administrator of such sole deceased owner, or of the survivor of such joitit owners, shall he entitled to he registered as owner in his place. Imp. 38 & 39 V. c. 87, s. 42. Same as Imperia' Act. INIr. Charley says that " as leaseholds are personal property, and mort- gages are merely, in the eye of a Court of Equity, securities for money, the devolution must necessarily be upon the personal representatives in these cases." The Manitoba Act has placed real property in the same position as personal property. It is a radical revolution in the doctrines of real estate property. See notes, etc., on Manitoba Act. As to this section, see Form 34, and General Rule 26. Nature of title of registered fiducinry oivner. 48. Any person registered in the place of a deceased owner shall hold the land or charge, in respect of which he is registered, upon the trusts and for the purposes to which THE LAND TITLF8 ACT, 1885. 91 the same is applicable l)y Ian', and subject to any nnro^'ia- tered estates, rights, interests, or equities subject to which the deceased owner held the same ; but, save as aforesaid, he shall in all respects, and in particular as respects any registered dealings with such land or charge, be in tiio same position as if he had taken such land or charge under a transfer for a valuable consideration. Imp. 38 & 39 V. c. 87, s. 40. The Imperial Act says, " Any person registered in the place of a deceased or biinknip'. prvprictor." Mr. Holt says, "The fiduciary proprietor would be entered on the register in like manner as any other proprietor, and a registered transferee for value from him would be altogether unaffected by the fiduciary character of his transferor." He would in fact take indefeasibly. Sections 43, 44 and 45 of the Imperial Act have been omitted in our Statute. They relate as follows: — Section 43, to transmission on bank- ruptcy of land or charge ; section 44, effect of marriage of female proprietor of freehold land ; section 45, effect of marriage of female proprietor of leasehold land. The section 38 of Victoria Act, with regard to the principles and practice in Australia, may be of value. " 38. The registrar shall not enter in the register book notice of any trust whether express implied or constructive {a) ; but trusts may be declared " (a) Notwithstanding this provision the Crown Lands Department has continued to issue grants, leases, and Treasurers receipts to persons described therein a^ trustees, executors, or admmistrators, as the case may be, and in all sue 1 cases notice of a trust actually does appear in tiie register book. The practice of the Office of Titles is to specify any trusts existing at the time of the application to bring land under the Act as encumbrances on the certificate. A registered proprietor who is known in the Office of Titles to hold in a fiduciary capacity, and whose power of dealing is not limited by having the trusts specified as encumbrances on the certificate when it is first brouijiit under the Act, is called a " special owner," and is dealt with in a peculiar manner. " A settlement of land under this statute is made by transferring the land to the intended trustees. No reference to a settlement or marriage shoi'id appear on the transfer, but it is well to state a nominal pecu lary consideration in voluntary settlements, as that will insure the issue of a certificate to the transferee without any reference on it to the provisions of the law as to voluntary dispositions of property. The trusts are declared by a separate instrument which is deposited with the Registrar, as pro- vided by this section, and a caveat is lodged to protect the interests of the beneficiaries. A subsequent dealing by the settlor for valuable considera- tion in derogation of a prior voluntary t'.v'nsfer will not be registered ; see Moss V. Williamson, 3 V. L. R. (E.) 221, where Molesworth, J., said that the new transfer had been very properly rejected by the office. Sedg. 21, 214." r\\ n III lit 1)2 Tlir, PROVINCE OF ONTARIO. by any document, and a duplicate or an attested copy thereof may be deposited with the ref^istrar for saft; custody anil reference ; and the com- missioner, should it appear to him expedient so to do, may protect in any way he may deem advisable the rij^hts of the persons for the time being beiieticially interested thereunder or thereby required to give any consent ; but the rights incident to any proprietorship or any instrument dealing or matter registered under this Act iih.ill not be in any manner affected by the deposit of sui;h duplicate or copy nor shall the same be registered." Eruhnce of transmission of reijisWrcd ownership. I!>. The fiict of any person hiiving become entitled to any land or charge in conseqnence of the death of any re-'ifitered owner, shall be proved in the prescribed manner. Imp. 38 \- 3. " The policy of the Legislature in framing this section was evidently to prevent titles from being affected, bej'ond a limited timf, by the operation of unexecuted writs of execution as charges on the land, and to reconcile the rights of judgment cretlitors with those of a pnrchastr for value whether with or without notice There is nothing in the statute, or in this particular section of it, to prevent a judgment debtor from making a contract for the transfer of his land to a purchaser fi.r value subject to the rights which the section gives to an execution credit r or to a possihl.; purchaser through the slitriff; Rcghtror of Titles v. Patcrsun, 2 App. < ases no, 118. " A sale by the sheriff under a writ o{ Jl. fn., of wliich a copy has not been served on the registrar, is not wholly inoperative. It is void as against a purchaser for value from the judgment debtor, but valid agaiir-t the judgment debtor himsiilf. ' My impression of that section (sec. 106) is that it does not annul a sale byy;. fa. as against the execution debtor, but leaves the purchaser exposed to l)e defeated by his acts until the execution is by some means brought into registration; ' per Molesworth, J. Uitit'J Ilaiui in HiiHil. etc., Cuinpaiiy v. National Bai.K, 2 V. L. H. (E.) 20G, 219 ; followed by the same judge in Giles v. Lesser, 5 V, L. K. |E.) jS, where it was held that an assignee in insolvency is not such a purchaser for value. " Two writs in actions by different plaintiffs against the same defendant were tlelivered to the sherifl" for execution at different dates. .\ copy <.f the writ secondly delivered was served under this section against land of the tiefendant, an 1 subscipitntly a copy of tly; writ first delivered was similarly served. The sheriff sold the land under both writs and it v.as held that the pmcce-ls of sale were to be first applied in satisfaction of the writ first delivered to the sheriff notwithstanding the priority of service of copy of the writ secondly delivered ; Bealh and others v. Atiderson, Supreme Court, April 6th, 1S83 " The writ only affects the land for the space of three months from the service of the copy, and it is not possible by the issue of an alias writ and service of a copy thereof to enlarge the operation of the original writ so as to preserve the effect of the judgment as against a dealing by the registered proprietor lodged at the Office of Titles for registration after the service of the copy of the original writ, but before service of the copy of the alias writ : Registrar of Titles v. Paterson. 2 App. Las. no. By the practice of THE LAND TITLES ACT," 1886. 97 lly u" Avlien .ticate. itice of he sale in« the :luU V. L'lUly to leration econcilc )r value » in the t debtor laser fur credit r Titles V. y has not I void as id agaiii'i ;c. 1 06) is btor, but execuli'in 20G, 219 ; , when- it r valr.e. lefendniit \ (.-ojiy ^'f I land >'f ered was nd it was ion of the service of Supreme from the Is writ and I writ so as Iregistered |he service the alios practice of thi! nrtice of Titl«s a new copy of the original writ or a copy of an «i/iy the SheritT in tlio prescrihcd form, with i)roof of tho duo oxociition thereof, cause a notice to ho nuiiied to the proper post-ollico address of tho ])er8on who8(! interest in the land shall have heen sold ; and aftor the expiration of tiro iveeka from the mailing,' of the notice : and on proof to his satisfaction of tho payment of all municipal taxes, except the taxes for tho current year, and all charf^os, rates, or asseHsments theretofore imposed for local improvements, and then due or payable, and if no other person has become entitled meanwhile for want of entry of the said writ or otherwise, the Master of Titles sliall register tho purchaser as the owner of the land, and shall issue to him a certificate in the prescribed form. Tliis is a new section. " Upon the production to him of the transfer in the prescribed form." Tliis means on the protluction to tiie Master of Titles of the sheriff's deed, with proof that all the formalities necessary have been complied with. See Rule 362, Ont. Judicature Act, and V, L. Procedure Act, an 1 practice as at present. It will be incumbent upon the Master of Titles to use great caution in issuing certificates to purchasers at sheriff's sales under this section, particularly in the case of sales under executions against thu lands of deceased owners. The case of Freed v. Orr, 6 Ont. Appl. Rep. 690, was a case in which the title had been passed by some of the best conveyancers which ultimately provetl defective. In that case the judgment ami execu- tion were all apparently regular against the executors of the deceased, but it turned out that the dedt upon which the judgment was formed was really not a debt of the deceased, by re.tson whereof it was held that the judgment, executions and sheriffs sales were als, Ji, 137 i I'rttmiin on Juiii;mfnls, sec, 480 it uq ; Htrmiin on Extcutions, ^33, J48, jgS , Hiinsom v Williamt, i W.ill. S. C. jij, Ihiurnt on yniliiiiil Salts, aoci. 88(i, 8qo, 898; Kecltt v. Lowry, 3j (Irant 1C7 ; Mixrlin V. <'iKAI.IN<)M WITH IlKtilHTKUKt) LaND. I'ljf'ect of HHrt'ijiiitfn'il (UHpnuitinuM. nt. il) Tlif i-c^istfrcd owner iiloiK! hIiiiII hu t'lilitUd to traiiHfcr or i'liiir>»(' rc^^'istercul liiiiil hy a rcf^iHtcrftl dispo- sition ; (2) Uiit, Hubjpi't to i\ui tniiintpniincc of tln» ostiit*' and rii^lit of HMcli owner, any i)t'rHon, whether thf re;.;imt(>re(l • iwrnr or not of iiny rei^'istered hind, hiivin)^ a HiilVu-ienl • •state or interest in the hind, may create estateK, rights, inter(!HtH and ei|iiitieH in the Haniu luannur aH ho might do if the land were not roKistered ; (3) And any person entitled to or interoHted in any un- registered estuti'H, rij,'hts, intorests, or cfiniticH in rej^'istered land may protect the same frf)in boin^' impaired hy any act of the ren;i«tered ownrr, hy entering on the re^dster Huch notices, cautions, inhihitions, or other restrictions as are in this Act in that heiialf mentioned ; (4) Tho registered owtior alone shall ho entitled tt> transfer a registered cliar<,'e hy a registered disposition ; but, suhjoct to tho maiutcnaiKM! of the right of HUch owner, unregistered interests in a registered cliarg(! may bo created in the sanu! manner and with the same incidents, ho far as the dilYerence of the subject-nuitter admits, in and with which unregistered estates and interests may bo created in registered laud. Imp. 38 vV Bi) V. c. 87, s. 40. Same as Imperial Act. This is a in^st important sectimi. Mr. Holt says: — " Tht! Act of 1862 required all equities to be t nteroil on the reRistcr, but under tho present Act ccjuitii's are to be e.vciuded therefrom, "init are to be protected, as mentiM nf itiMct doalinHii ilia rcKittero.t propriainr ihall 1)0 ontiilt'l to an mtixiti in (cm «iniplr. htii lubjoct to thn nminianAnc* 'of tha eiMlii iiii'l nulit >>( mich pri.piK'txt, anv puiHon, vvhr^llier the r<«t(Uli>rel iht «ilal«H and mtircHit vi creato>l inny l)«i prtiivciu'l liy tlio i-iitiy of caution* Mn>l ri ttiKtiont on tho reKiatur. The mirUDol h« lirxt r<'Kil proprietor whiUt in hin hantU ia alo) macid exprranty lublKt to the «iiuiti«« of per«(ini i'laiinini{ iin-r liim (scitiun tiin'), mt it woiill mitmi that th>i •atato of a iran^troKfe wliil'tt in hix hani.i» wuutd alio bo lialila to thu •quilit><« of pMrHOHH claitnini{ tinder hiin. " Wh'in it n ntfimmry. thori'fnrf, in diHpfmiriijdfraiUKnHand r''stiu:tinn» or applicaiionH fur inliibiiin^j oiiieta, or iithi-rwino to inipiiro into thu banotKial title, thu in'iniry s\ill l tr;i{iH(i>i ; an! f'>r the purpiiaa thfrfof the ri'Kiaterrd pn>prii'ior will, if hiit ixnelimal iat'Tcats aie questioned, iiave to siippnit hin title also niiiHi.io th« riuistor. l"or instance, tiic mere nitry on th'- n'>^iit«ri)f tlmpr.jpiietin dilp will not ndmt fvult^nce. ahowintt that the propriutor has, l)y unrc^iateied dealinKK, crea ed intereMi advsriia to hin rc^islci- Ici] sttii|ilt> entato. or tli.it lie in n tniste'.* for K(ini<- one elta; nor, on \h^> i>tliur h mil, will it li,; coikIiihivu evi Ioiki; if Iiin iii^tit to create any pariicuia'- iiiirc)(isteri'i- l>i)i'ii(! Ill iiiimt, in 1 that piTsuns di' iliii^ with r>v>^tert'd owneis oil the rcK '•ttu shouM iii t t iko it f >i >;rant>.' 1 that the le^'isiurud owner is heneficiailv entitled, and, therefore, that thoy can secure them- selves by caviMts with nil tal{i a caution. See appendix. J TUE LANn TITl.K'l ACT, 1885. 105 ift] CAUTIOK AOAINHT RKOISTERED PKALINiJa. Caution afiainst registered dealiiKis, hoir to lie Uuhjed. itei'ostod liuul 5>H. (1) Any person mterostod in any way in any land or charge registered in tiie name of any other person, may lodge a Caution with the Master of Titles to the etlect that no dealings witli such land or charge ho had on the part of the registered owner until notice has heen served upon the cautioner. (2) The Caution shall he supported by an aiVidavit or declaration made by the cautioner or his agent in the pre- scribed form, and containing the prescribed i)articulars. (3) Provided, that a person interested undi^r a lease, or agreement for a lease, of ivhich notice has been entered on the register, or a person entitled to an estate in dower, or estate by the curtesy, of wiiich notice has been entered on the register, shall not be entitled to a Caution in respect of such lease or estate in dower or by the curtesy. Imp. 38 & 39 V. c. 87, s. 53. The Imperial Act reads : " Any porson interested under any unregis- tered instrument, or interested as a judgment creditor, or other\vise, howsoever, in any land." See Rule i8, Form 19, and Form 20 as to the affidavit in support of Form 21. This provision refers to land " after registration." As to cautions before registration, see secs. 65, 66, 67, 68, 69, 70, Cautioner entitled to notice of proposed registered dealings. an, (1) After any such Caution has been lodged, the Master of Titles shall not, without the consent of the cautioner, register any dealings with the land or charge until he has served notice on the cautioner, warning him that his Caution will cease to have any effect aftar expir- ation of the prescribed number of days next ensuing the date at which the notice is served. T( "! r 1" 100 THE rUOVINCE OF ONTAIIIO. (2) After tho expiration of such time as aforesaid, tho Caution shall ceaso unless an order to the contrary is made by the Master. (3) Upon the Caution so ceasing, the land or charge shall be dealt with in the same manner as if no Caution had been lodged. Imp. 88 & 31) V. c. 87, s. 54. Same as Imperial Act. Copied from the Land Registry Act of 1862. According to Rule 18, the periofi to be limited by the notice to be served on the cautioner under section 59 shall be fourteen days, or such other period not less than seven days, as the Master of Titles may direct. This is very similar to the practice in Australia. Accurding to Sedg- wick 74, a mere equitable dejiosit of the certificate of title confers an interest suiKcient to support a caveat, but not a judgment of the Supreme Court. A grant by the registered proprietor, of an easement in gross, cannot bi- rcfr'istcrcd, confers no such interesit, as such an easement cannot be registered. Ex parte Juhnson in re White, 5 W. W. & a'B. (L.) 58. An easement in ^russ appears to be a right which a person could be entitled to irrespectively of any land of which he is possessed. Mr. (joddard cites authorities to shew that such a right in gross is not an " easement " at all as it is at variance to the definition of an easement, viz., " a right which the owner of one tenement has a right to enjoy in respect of that tenement in or over the tenement of another person." Goddard on Easements, page 7. It has been held in Australia that a caveat lodged to secure a lien of £().\ cannot hold, and the caveat was ordered to be removed, i \V. W. ^^ a'B. (L.) 119. In Australia " the caveat only affects instruments not already lodged for registration, and time is often wasted in trying to stop registration of an instrument actually lodged in the office of Titles. The reason is, that registration, when actually performed, relates back to the time of lodging ; so that if, when the necessary searches have been completed, it appears that the register was clear at the time of lodging, no document lodged subsequently can interfere with registration. " Sedg. 213. As soon as the caveat has lapsed it is the duty of the registrar to register any transfer which has been temporarily stopped. He is not bound to take notice of any interest in respect of which no caveat has been lodged, or in respect of which the caveat has lapsed. Patchell v. Mannscll, 7 V. L. R. (E ) 6. As to what order may be made see in re caveat Slack, i V. L. K. (L.) 319, and in re Clark, 2 S. A. L. R. 191, as to costs. " If the caveator held an instrument that can be registered, he should lodge it for registration within the fourteen days, and it will cut out any instrument lodged subse- \^^u THE LANn T1TLK8 ACT, 1885. 107 d eflect of (luently to the caveat." Sedg. 76. As to sheriff's vendof caveat see ex parte Wise, 2 A. J. H. fxj. The Victoria (Australia) Act is more specific than ours. There, " a caveat shall not be renewed by or on behalf of the same person in respect of the same estate or interest ; but if before the expiration of the fourteen days the caveator appears and jjives security the judge may direct the registrar to delay registering." Where an order under this clause did not show on its face, nor did it appear in the affidavits that it had been made tvithin fourteen days after notice to the caveator, the order was held bad, and was set aside. Ex parte Wise. 2 A. J. H. 69 ; 2 V. R. (L.) ni. If the affidavit shews the facts that is sufficient, tn re The Uclmore Silver and Lead Mining Company, 2 V. R. (E.) 126, 129; 2 A. J. R. 76, and see in re Caveat of Fearnley, 2 A. L. T. 32. Our statute seems to be much more simple. For v.hereas, under the Australian system the registrar cannot delay registration without an order of the judge, which must be served on him within fourteen days, under the present Act the Master of Titles has power to make an order himself and keep the caution alive. The Master of Titles has th*^ '^ame power as the Australian judge, and more power than the Australian registrar. If the judge has made one order to delay registering to a certain day it seems to be a question in Australia whether he has any power to renew the delay and e.\tend the time. ill i ! Ref/istered dcalinjs delayed on bond being giren. lodged ration of is, that lodging ; appears t lodged m as th3 transfer notice of respect (E)6. 1. R. (L.) Ltor held istration ;d subse- 00. If before the expiration of the said period the cautioner or some other person on his behalf, appears before the Master of Titles, and gives sufficient security to indemnify every party against any damage that may be sustained by reason of any dealing with the land or charge being delayed, the Master of Titles may thereupon, if he thinks lit so to do, delay registering any dealings with the land or charge for such further period as he thinks just. Imp. 38 & 89 V. c. 87, s 55. Same as Imperial Act. This section is cop'ed from section goof Land Registry Act, 1862. Holt says, " With respect to cautious, the course to be pursued after the registrar has determined on delaying the registration on cause being shown and security given by the cautioner is not pointed out, nor was i' provided for by the former schemes where the jurisdiction was given to the court. " It is presumed he must take such steps by litigation or otherwise as may be necessary to establish his rights. u 1 I J |ji III iiaiipi II 108 THE I'UOVINCK OF ONTAUIO. " The ri^ht to lod^o a caution under sciction 58 is not like the caution against entry of land on the re^^ister iimler sectiijn (j^.i-oniiried to ;i person having such interest in the land as ' entitles hini to olij-' . to any disposition thereof \n'.\un made without his consent ;' and, therefore, ;t is assumed that any persou interested in the land, whether entitled or not to impede its sale, rnay lodi'e a caution under section 58, hut the qu;;stion whether there was ' reasonable cause ' to lod;;u the caution is apparently distinct from the ri^ht to do so ; see also section 70. " A caution is in the nature of a distringas on stock, and the lautiniier .'((.'(luiri-s n I interest by lodf^inf^ it, his title dependinf< on the beneficial rights in the land of the person creatinj; the charge or inti.-rest in rtri[)ect of whicli it is hnlged. " The late Master of the Rolls, with regard to the (piestion whether a recognizance was a charge ujion land, gave the following opinion in an unreported cist; (July 2i)th, ii-69), arising under the Act of iHCu: — ' I am of opinion tiiat a lecognizance entered into and duly (Mirolled as a security that a leceivi.T shall duly accmmt for his receipts, aiul in whos:-; account no defmlt has been made, and which recognizance has never been put in force up to the time of the sale of the land to a [uirchaier, is not any charge on the land under the Acts of 2j iS: 24 \'ict, cap. 3.S, .ind 27 & 28 Vict. cap. 112, and in my opinicju it does not require to be registered in the •'otnmon Pleas under section 8 of 2 and 3 Vict. cap. 11, or under the above-mentioned Acts." " ,■; '""i ir ;) . (JompcnS'ttinn t'nr impynp.'r Iml'iiiiii 0/ r iiitioii. Hi. (1) If any person lodgrs a Caution witli tlu; Master of Titles without reasonable cau.se, lie kIi.'iU be liable to make to anj' person who may have sustained daiuiij^e by the lodjfing of such Caution such compcnsiition as may be just, and such compensation shall be reccncrable as a debt by the person who has sustained (bima^'e from tlu' person who lodged the Caution. (2) Any person aggrieved by any act done by tlu; Master of Titles in relation to Cautions under this Aet, may a).} ?al to the Court in the preseribt'd nianm'r. Imp. 88 >.'': 31) V. c. »7, s. u(>. . :.\v. : ... . ...li.:'. il Act. 7. 3 S'-cti. • copied from looth section of the Land Kegistr; .\ct, iKv'.'. Cndtr tl^s ' M- ipnied statute an application to the Court of Ch.incery wa,> necesb.r . . • .e compensation " shall be recoverable as a debt ," "The Court. ' See secti'in i '4, and srction 3. " Interpretation." TJ(K LAND TITLKH ACT, 1885. lO'J INIlimriON A(UINHT UK(»STKUi:i> DCALINOH WITHOUT OUDKU CF COl'llT. Power of court or nvtstrr to inJilJ)it rc'iistcrcd (Jfdlinijs. a**, (1) Tho Court, or (subject to an apixiiil to the Court) the trustor of Titles, u^jon tho application of luiy [lorson intcrc'sti'd, inmlc in the proscrihed manner, in i ela- tion to any rej^istered land or t'har<^'L', may, after directinf.^ such incpiiries (if any) to he made and notices to he given, iind hearing such persons as tho Court or Master of Titles thinks expedient, issue an order or make an entry inhihit- ing for a time, or until tho oceurrenee of an (ivt.ut to he named in such order or entry, or 'generally until further order or entry, any dealing with registered land or with a ngistered cliarge. (2) The Court or the ]\[aster of Titles may make, ov re- fuse to make, any such order or entry, and annex thereto liny terms or conditions the Court or blaster of Titles may ihink tit, and may discharge such order or cancel huch entry when granted, with or without costs, and generally act in the premises in such numner as the justice of tho case re(piires. C^ Any i)erson aggrieved by any act done by the Master ■if Titles in pursuance of this section may appeal to the Court in the prescribed manner. Imp. ;}8 & 39 V. c. 87, s. 57. Sanu; as liuiuirial Act. The first clause (<( this sectinn is foiiiKled ujioii sjction loi of the Land Kcniistrv Act. Tht; inhibition is similar to an injiiiK'i(jn formerly issued by the Court >A (Chancery. " Any dtalinji." Accfirding to Holt, this only inchulcs dealirqs on tho register, nnt dealings off it. See Kiile 52 .ts to notice; also Rule 54. As to appeal, se .• Rule 59. IIT 110 THE I'UOVINCK OP ONTAHIO. In Knglaml, the oftico fee for an entry is £i. Our tariff of fues not yet published. " in the prescribed manner." See Kule ly. " I'cissibly the power to inhibit rninht be used in aid of a cautioner who, having satisfied the registrar and given security under section 60, iniKht, instead of proceeding in the court to enforce his claim, be aUowed to apply for an inhibitory oriler, and by bringing all necessary parties before the registrar, ellectuate his object in the quickest and least e.<(pensive manner. But probably the most general use of the inhibitory order, as well as of restrictions, will be in cases where the registered proprietor (owner) is a mere trustfc, or has settled or moilgagetl the land off the register, as the security afforded by these restrictions may obviously be greater than that to be ilerived from the entry of a caution, since in the one case the actual consent of the person affected may be required, whilst in the other he is merely entitled to a notice." Holt, 93. POWICII OF UEOrSTEUED OWNER TO IMl'OSE RE8TUICTION8. Power to 2)l(ice restriction on register. if I i-i nil. Where the registered owner of any hmd is desirous for his own Hiike, or at the request of some person hcne- iifially interested in such land, to place restrictions on transferring or charging the land, such owner may apply "to the Master of Titles to make an entry in the register that no transfer shall he made of or charge created on the land unless the following things, or such of them as the owner may determine, are done ; (that is to say) — Tnless notice of any application for a transfer or for the creation of a charge, is transmitted hy registered letter to such address as he may specify to the Master of Titles ; Unless the consent of some person or persons, to be named by such owner, is given to the transfer or the cre- ation of a charge ; Unless some such other matter or thing is done as may be required by the applicant and approved by the Master of Titles. Imp. 38 & 39 V. c. 87, s. 58. THK LAND TITLKa ACT, 1885. Ill Same as Impt'rial Act, which was copied from section 93 of the Lainl ficKistry Act. See Rule 20. Form 23, " The restriction, in the nature of a stop order or distringas, except thai it is imposed on the application of thu registered owner himself, may be employed by an owner who is fearful of his estate he\nn conveyed away from him behind his back by means of forgery or personation ; or of ii fraudulent disposition by an heir-at-law; or a surviving trust<'e ; or an improper or unsviso exercise of a power of sale vested in trustees." Charley, page 218. This provision seems liable to bo capable of abuse, and to result in locking up the land, " Unless the consent of some p;rs)n or persons to be named by such owner," etc., seems to ^ivc the owner an opportunity of naming some fictitious or inaccessible person for the ]iurpos(! of putting a stop to the transfer. At the owner's death, liowevt'r, it would come under the provisions with regard to transmission; and, at any rate, it is suliject to tlu! Master of Titles, so that, practically, no harm is likely to ensue. Master to enter rcstrietions in rei/ister. HI, (1) The Master of TitluH shall thcruupon, if satisfied of the right of the applicant to i!,[\e such directions, make a note of such directions on the re<];ister, and no transfer shall be made or charge created e.\cept in conformity with such directions. (2) But it shall not ho the duty of the Master of Titles to enter any of the above directions, except upon such terms as to payment of the fees and otherwisi; as may l)e pre- scribed, or to enter any restriction that the ^^aster of Titles may deem unreasonable, or calculated to cause inconveni- ence. (3) And any such directions may at any time be with- drawn or modified at the instance of all the persons for the time being appearing by the registry to be interested in such directions, and shall also be subject to be set aside by the Order of the Court. Imp. 88 & 39 V. c. 87, s. 59. !' ' 112 THK J'UOVINCE OF ONTAIIIO, Snmi) an Iinporiil A* t. Takrn friMii s.-i tiun .j.j of Lami HcKintry Act, i86a. My Kiilo JO, " every application unik-r «»rcti')n 64 of the Act to witlulr.iw or mudify any dirfction or rt-strii lion hImII \m inadu ami sij^nml by all jHirsons fur th ; time beink; appt:arni>{ by tho r«Kisi(;r to be interiHied in such ilirection or restriction, and shall be att'-sted an(land, the olfloa foe or with Iraw.il, or in ) li(k ition of restriction is 7s. PART VI. Provisions Snii'LEMRNTAL to FouRnoiNo Parts ov A't i i\ : 3(1 f CAl'TION AdAINST KNl'UY OF LAND ON UKOISTKIl. Cdiition (iiiiiiimf reiiisfrntion of land. 05« Any person liiivinf* or claiming such an interest in any land which is not already rej^istered as entitles him to object to any disposition thereof being made without his consent, m.-iy lodge a caution with the ^Faster of Titles to the elfect that the cautioner is entitled to notice in the pre- scribed form, and to be served in the prescribed manner, of any application that may be made for the registra- tion of such land. Imp. 38 tl' 31) Y. e. 87, s. GO. Thi^ is the same as tlie Imperial Act. It is copied from section 35 of Land Rej^istry Act, 1872. It refers to cautions before reRistration. Cautions after registration have boen treated tiy sections 58, 59, 60, 61, above mentioned. "In the prescribed form and to be served m the prescribed manner." See Rule 17 and Forms 16 and 18. In applyinR for first registration, search should always be made for this class of caution. ^ > t! Tiir; i.v.N'D Tirr.iN A(T. 18Hr). 113) by all iteil in I." rictioii Act. I'vost in him to lout liif^ It 1 tics to tho pre- niunii'V, i-f^istva- IJmler n sitiiil.ir Moriion in tho Viclorin (Auntnili.*) Ari, No. i". "f •■'"'ft. HfCtioi! ji. Mr. a'Mf'ki'tt %\\h, " TIki miilssinii to nm r .i i- iviMt iiikIit this « xti'iti liny lio a Kmiitid for tMiiHiiit in iin !u:titji) Id riinviT tliiiiri^i'i fi)r ilepriv.itjiin of iho l.tti 1 " At t ' sciviLf. in rr Ihr C'lvrdi of Sloik, i V. L. R (I.) \iit, wlicrr if was liild ilirit a nilu niii to I'-movo a i.av.tt is nut jiroiinly mimm' I on tho cavuitor by InivinK it nl an n'ls!i nnnv 1 m thncavunt. lIivliT Kiili' r7, every c.ntitioM In.ltfi'd iiii'l^'i sectioii Ti^'f th" Art sIkiII bo !«i»;ne'r hi.t SDliciuir. anJ sli.ill lontain a |)l.'u't!of a treated as wjthdr.iwn. As to Notices, SCO sections oo, i|i. f)J, o.V I'nder the Victoria .\ct (.\iistr.ili.i), section jj, No. >oi, istjiine, iSdfi, after the expiration of one month, the c iveat shall bo deemed to havo l.ipscil, unless the perscni lod^;inl,' sanu; shall h.ivi; t.iken proi:eedinns to '.'stablish his title to th(' est ite speciCu; i in tho c.iveit, and sli.ill h.ivi; ^iven notic(; thereof to the re;^istrar, or obt.iine.l and served on him an injunction or order, rcstr.iinin^,' the rei^isirar from brln^jiiiK tlu; land under the Act. It is also provided that " a cive.it shall nut be renewe.l by or on behalf of tho same person, or in respect of tho same estate or interest." The system in Australia throws tho iniiix of proceeding on the cauti mer. and if he does not t.il;e procoedinvjs in one month, his caution lapses, and lie is estopped from liavinR it renewed. Under tho Land Titles Act of Ontario, the units is thrown on the man who owns the land, and that, loo, before ho has taken any stejis at all to biitiK' it umler the Act. " Any person clniinirip; an inteiest in any land as (nUitles him to object," may lodge a caution, and that caution may rem.iin tluT'j for tivo years, and tho cautioner may K<:t it renewed. Iction 35 of IcRistration lianner." Ide for this Lis pendens not to Jir reijhtered. )l lit THK rnovrNCK or ontaiiio. Thin in merely a proviition lo Hulmtittite a caution un'lar the Act fur i lit f>iiiiliut ntidiT the priinrnt roKiHtry lawn. St*u kcctionn 58, yj, etc , ami nttction (15, iiotun, nml riili!<« thiruuti. Caution tit Iw HujuiortiU hi/ ajjulnvit. 7", Evory Caution hIiuII he HiipiMiitid hyim iiflldiivit or (Iccliinition ill tlu; prcHcriltcd form. HtiitiiiK tlic imtiir»f of till! i!iti'r(!Ht of tli<' ciiutioMcr, the liiiul to \n\ uH't'ctt'd by the Ciuitioii, and suidi otln^r !iiatt»rH us may bi» prtHcribcd. Imi). :)8 iV 3'J V. c. 87, .s. (il. " III till! proscribeil nintinor." Sot; notes on sctlion 05, The form of affiilavit is set out in Form 17, Cnutioucr futith'tl to tiotict' of projutHCil n'lj'mtrnt'uin of laiiiL ilH, After a Caution liaH been lodf^od in respcot of any land not already registcircd, otid irhile the mniv in in foni', rogiKtration hIuiII not be made of hucIi land until notice has been served on tlio cautioner to appear and oi)po80, if bo tbinks fit, sucb rej^istration, and until tlie prescribed time bas elapsed since tbe date of tbe service of sucb notice, or tbe cautioner bas entered an appearance, wbicb may lirst bappen. Imp. 88 & 39 V. c. 87, s. 62. Same as Imperial Act. By the 17th Clcneral Kulo, " The period to be limited by the notice to be served on the cautioner, under section 08, shall be fourteen days, or such other period, not less than seven days, as the Master of Titles may direct.'' Gompensdtion for improper hxhjimj (f cnution. Ott* If any person lodges a Caution witli tbe Master of Titles witbout reasonable cause, be sball be liable to make, to any person wbo may bave sustained damage by tbe TIIK t,.\N|) Tirt.KH ACT, IHHB. Uli loil^iiiK of Huch Ciiiition, Hiioh ('oinpt'iiHiitioii uh iniiy lio juRt ; unit Htioh cotupcnHiition mIiuII Ii«! ilioiunl to l)(> u ilcitt duo to tho pcrHoii who Ims HiiHtiiino(l ilmim^i' from tlui per- Hon who hiiH loc \\\i' to th«> I'liHoti >«ho Ham MUitained (lamitxu " being Hub^ititutott in«lcat as in this Act men- tioned," etc., which, see sections noted and rules- particularly rule 17^ {2} " ICvery caution shall he renewed before the expiration of live years from the date of lodging the same ; otherwise, it shall be treated as withdrawn." Section 70 relates to cautions u/ter as well as to cautions before registration. M 8ALK IIY TnUSTKES AND M0RTOA0KE8. Triistfcs may sell by nivdium of luijintry. 71. (1). Any perHon holding,' hind on trust for sah', and any truateo, mortgagtMi, or oilier person having a power of selling land, may authorize tho purchaser to make an api)lication to he registered as first owner with any title which an owner is authorized to he registered with under this Act, and may consent to the performance of the con- tract being conditional on his being so registered ; or may !"r T IIG Tiir, ruoviNcT. ok ontaisio. i • ! i liimHolt' apply to \h' registered ixf Hiich owner with the con- sent of the pernons (if iiny) whoso consent is required to tho exercise by the npijHcant of his trust or power of sale. (2). Tile amount of all costs, clnirges and expenses pro- perly incurred by sucli person, in or about the application, shall b'i ascertained and (hiclared by clu; Master of Titles, and shall bo deemed to bo costs, charj:(es, and expenses properly incurred by such persons in the execution of his trust or in pursuance of his i)o\ver ; and such person may retain or reimburse the same to himself out of any money cominj::; to him under the trust or power, and he shall not be liable to any nccount in equity in respect thereof. Imp. 38 .V 3!) V. c. 87, s. OS. t Same as Imperinl Act, with tliof^enoral tixceptioii in this Act of thi3 word " owner " buinj,' used instead of proprietor. This must be considered as beinj; engrafted and read with section 6 and section 15, as to per.-.ons competent to apply for registration. " .\ trustee or mortgagee cannot apply to liave a nominee registered under this section. " C^iarley, page 2-26. By tlie 1st General Rule, " When the application is made by virtue of a trust or power of sale, the consent in writing of the persons, if atiy, whose consent is required to the exercise of the trust or power, shall be also left with the application." Forms i, 4. When the application is made by the purchaser, a similar consent in writing of the vendor or his solicitor must be left with the application. It is evident that this section is only for the purpose of allowing trustees or mortgagees, who wish to sell and have sold, to give powe; to the pur- chasers to be registered. The idea of the Act is to keep all trusts out of the register. The pur- chaser from a trustee should not be debarred from coming under the Act, as he comes with no fiduciary capacity. The trustee himself " may apply to be registered with the consent of his cestuis que trustent." In B radish v. Clcames, lojur. (M. S.), 251,11 was held that trustees hav ng the legal esta'e in the land, but only a power to sell with the consent of the benefic ■! tenant for life were not " trustees for sale of the fee simple " within the meaning of section 4 of the Act of 1862 ; but such tr'istees would seem to be within section 71 of the present Act. As a mortgagee has no interest in the mortgaged land except as security for money, where the security is sufficient there is no reason why he should register under the Act unless at the request of the mortgagor. Where the security might, however, prove insufiSci-^nt, it might be advisable to enhance Tiir; liAN'n titi.ks act, 1HS5. 117 also left its value by rt;;,'istrati()n. In the case of trusters for t^ale, if the land is to Ije soKl in lots, as tlie value of tliii Und would bo incrcastid, and the expenses of the sale lessened by registration, it would seem ailvisable to apply (where practicable) for an aljsolute title under this secti m, all costs of the trustees in resjiect of the applic ition b.iinK by the Act ma li- payable out of the trust property. With regard to property held by trustees desirous (,f inakitiK the most nut of the prtjperty, and where tlie prop.rly is in acres neii the city of Toronto, no butter iniKle of LMihancini,' its value could be (levisc 1 than to brin.q the property under tlic Act bofore it is cut uji into lots. It would be necessary for the tiusteo, in such cises, to ubtniu '■ the conS' nt of the persons svhose consent is riipiired to the exorcise by tho applicant of liis trust or power of sale." See appemli.N, RIXIIHTIIATION OF I'AUT OWNI'.KS. Rc'iiistraiioii t/f part otnicni. Tii. Any two or inoro pcv.sons entitled for tlioir own beni'lit concurrently or successively, or partly in one mode and ))artly in another, to such estates, ri.Ljltts, or interests in land sis to;^(-.t!ier make up such an estate as would, if vested in one person, entitle him to l»o rej^isterod as owner of the land, may (subject as in this Act mentioned with re- spect to the number of persons to be re^iistered in respect of the same land) ai)ply to the Master of Titles to be regis- tered as joint owners, in the same manner and with the siime incidents, so far as circumstances udmit, in and with which it is in this Act declared that any individual owner may be registered. Imp. 88 & 39 Y. e. 87, s. 09. Same as Imperi.d Act. This section must be read with sections 6 and is supra. " Subject as in this Act." See Rule 37 and section 85 {2) (3). I'RODUCTION OF DEKDS. Froduction of (leeds. 7li» (1) "When an application has been made to the Master of Titles for the registration of any land, if any per- son has in his possession or custody any deeds, instruments or evidences of title relati- g to or affecting such land, to 'W r^- til '»« 118 THE PUOVINCr- OV ONTAUIO. the production of which the appHcant or any trustee for him, is entitled, the Master of Titles may require such jier- son to shew cause, within a time limited, why he should not produce such deeds, instruments or evidences of title to the Master of Titles or otherwise, as the Master of Titles may deem fit ; and, unless cause is shewn to the satisfac- tion of the Master of Titles within the time limited, such deeds, instruments and evidences of title may be ordered hy the Master of Titles to be produced at the expense of the applicant, at such time and place, and in such manner, and on such terms as the Master of Titles thinks fit. (2) Any person aggrieved by any order of the Master of Titles under this section may appeal in the prescribed manner to the Court, which may annul or confirm the order of the Master of Titles with or without modification. (3) If any person disobeys any order of the Master of Titles made in pursuance of this section, the Master may certify such disobedience to the Court ; and thereupon such person, subject to such right of appeal as aforesaid, may be punished by the Court in the same manner in all respects as if the order made by the Master of Titles were the order of the Court. Imp. 38 & 39 V. c. 87, s. 71. Section 73 is a very important provision, and is the same as section 71 of the Imperial Act. Mr. Holt thinks the powers given by this section may be exercised after registration as well as before it. Mr. Charley says : " This is one of the most salutary amendments of the old law contamed in the present Act. There was no power given by the old Act, either to the court or to the registrar, to compel the production to the registrar of any title deeds in the hands of third parties. The applicant for registration under that Act was in a worse position than if the deeds were lost, for in that case he might have supplied the deficiency by proving the loss; and furnishing secondary evidence of their contents. The Irish Court has, on the other hand, power to compel production of title deeds to the examiner of the court, and has constantly exercised this power. " It isimportant,however, to note the qualification contained in the words of this section, ' to the production of which the applicant or any trustee for him is entitled.' The registrar will be obliged to decide whether the i ^11. i^. !■■ ■ ^ I ''Tlr? TIIK LAND T1TLK8 ACT, 1885. 119 applicant or his trustee is so entitled, before requiring the person in whose custody the documents are to produce them. " Subject to this remark, the present section is very satisfactorily framed. On the one hand, it protects the third pirty against any expense, which is thrown entirely upon the applicant, and, also, against an unreasonable demand, by giving him a right of appeal to the court ; while, on the other hand, the registrar is empowered to apply for the imprisonment of the third party for contempt of court, if he discjbe}'s the registrars order to produce." Section 70 of Imperial .\ct is left out in the Ontario Act. Section 70 of Imperial Act is as follows : " Section TO iMPERiAii Act. ! ! " Instruments and facts afectinfi the title to be disclosed on reiiistrations. "Before the completion of the registration of any land in respect of which an examination of title is required, the vendor and his solicitor, in cases where the applicant is a person who has contracted to buy such land, and in all other cases the applicant for registration and his solicitor, shall each, if required by the registrar, make an athdavit or declaration that to the best of his knowledge and belief all deeds, wills, and instruments of title, and all charges and incumbrances affecting the title to the land which is the subject of the application, and all facts material to such title, have been disclosed in the course of the investigation of title made by the registrar. The registrar may require any person making an affidavit or declaration in pursuance of this section to state in his affidavit or declaration what means he has had of becoming acquainted with the several matters referred to in this section ; and if the registrar is of opinion that any further or other evidence is necessary or desirable, he may refuse to complete the registration until such further or other evidence is produced." See section 109, Rule 51 provides, " Upon any summons being issued under section log of the Act, the affidavit verifying the service thereof shall also prove that 120 TIIK I'OllVINCE 01- ONTAUIO. r Mi the reasonable charRes of the atteiulanne of the person summoned, an-l of his production of the documents (if any) required to be produced, have been paid or tendered to him." The costs are to be borne by the applicant, unless cause is shown within the time limited, (i) Section 73. Deeds to he marled irith notiee of reijinivnlion nnder iJiis Aet. T4. A porson shall not be rofijistered as owner of land until, it' rcMiuirod bj^ the Mastev of Titles, he has produced to him such if Ontario as when used in a Imperial Statute. The persons intended are of course non-residents of Ontario. See further as to persons under disability. Sees, 79 and 89. Power of Coxni to hind interests of incapacitated persons. 7'!>. The Court shtill hesir the allegations of all parties appearing before it. It mny disapprove altogether, or may apifrove. either v,ith or wiiliout niodilication, of the direc- tions of the Master of Titles iu respect to any case referred as to tlie title of hind. The Court may also, if necessary. TIIK LAND TITLKH ACT, 1885. 126 ;ip))oint a f:juar(liiui or otlior person to appi-nr on belialf d any inf'antrt, idiols, lunatics, piTsoiiH of unsoiiiul mind, per- sons alisi'nt beyond seas, or nid)orn persons ; and if the Court is satislied tliat t\w. interoHts of the persons hihonrin}^ under disabiHt_\, absent, or unborn, will bo sutVuientiy represented in any cas(!, it shall make an order declariufj; that all persons, with the execptiona (if any) named in tho order, are to be eonelusively bound ; and thereupon all persons, with such exceptions (if any) as aforesaid, shall be conclusivcily bound by any decision of tho Court havinj» co^Miiznnce of tho case in which such persons are cim- cerned. Imp. 38 & ;{y V. c. 87, s. 77. I '■ I ! Same as Imperinl Act. Sue last sectiun. Unchr this section the Couit lias the power to protect persons under disability ; also power conclusively to l)ind them. This is a wise pro- visicjn, inasmuch as it will prevent the land l)einR " lucked up," or sold under cimditions, or with a Idot on the title. See .section 8q. AS TO LAND CEIlTrFICATKS, OFFICK COPIES OF LEASES, AND CERTIFICATES OF CHAUOE. Loss of land certificate, or certificate of charr/e, or office copy of lease. HO. If any Land Certificate, or oflice copy of a Rcf^istered Lease, or Certificate of Charp;e is lost, mislaid, or destroyed, the Master of Titles may, upon being satisfied of the fact of such loss, mislaying, or destruction, grant a new Land Certificate, or office copy, or Certificate of Charge, iu the place of the former one. Imp. 38 & 39 V. c. 87, s. 78. Same as Imperial Act. This section is copied from the Land Registry Act of 1862, A'ith the addition of the word " mislaid." See Rule 35. w^ 12(5 TIIK niOVINCK OF ONTAUIO. Kvery application for a new land certificate must bo supported by the alhdavit of tlu) applicant, etc. Tho Master of Titles will have to bo c.Tcful that the land certificate is rcnlly lost before lie grants a new one. Charley says : — "Under the prcx'-'Pt Act as umlcr the Land HcKistr^' Act, an important (jucstion minht arise between the innocent holder of a laml certilicatt; supposed to lie lost and the equally innocent holder ot a substituted certificate. If a land certificate be represented as lost the first presumption will be that the missing certificate is in fact in the hands of an e(pntable mortgagee by deposit. " See section 83, infra. It is not likely that any difficulty such as sugRested by Mr. Charley could arise, as it would be the duty of an ecpiitable mortgagee of tho certificate to at once lodge a caution with the Master of Titles on his receiving the certificate. In fact it would be the duty of a mortR.igee at any time if acting bona fide, to search for cautions before advancing his money, in which case he would find that a nosv certificate had been issued. fn Victoria the Kegistrar of Titles has issued a notice advising persons who have lost their certificates to lodge a caution to prevent fraudulent dealings with such certificate. I?y Rule jj — " No new land certificate shall be issued under section 34 to the same owner, unless the old certificate is delivered up, except as provided in section 80." licncwal of land certijicate, or certificate of charge, or office copii of lease. SI. The Master of Titles may, upon the cleHvery up to him of a Land Certificate or of an otiticu copy of a Registered Lease or of a Certificate of Charge, grant a new Land Certificate or office copy of a Lease or Certificate of Charge in the place of the one delivered up. Imp. 38 & 39 V. c. 87, s. 79. I ! ii Same as Imperial Act. Copied from section 19 of Land Registry Act of 1862. It is apprehend- ed that this clause is intended to make provision for the issue of a new certificate in cases where the old certificate has become worn out or obliterated. In the Victoria Act, section 131, provision is made for the issue of a new certificate in case of loss or obliteration, etc., of the old one. Sections 80 and 81 of this Act are better, as under the Victoria Act it would be necessary to advertise in case of a new certificate being issued in the place of one which has become obliterated, which is a use- less expense. TIIK LAND TITI.KH Al'T, iHHr). 121 Liiml crrti/iratt', ci'rtijit'titr of rhinuji', jiiiMld.^ tiiDriKMiM much on iho Mm« f(t<>tini< an they hnv'j Ikum uiiiIm iit ( )iiiiiii<) ninti.' tlio Uiitiintry Act uf (H67, which .'ilMilinho'l nil r(|iiital>lti tinruK»*t'*rt'(l iniuri.'nO nH ni{aiii»t a reffiiliirail morix.iKen without triticr. 'I'ln' »'lti' i|f[»)nii of titlu iluiiilx, nn n>)l)oi|y wuutit taku thu risk iiici'lotit Ih^r. to. 'I'hiTi! ill, howt'vur. more sifcly in t ille n)i)rt),'nKre may nt any timn lod^i! n c iiitiun on tlio r«'Ki'h! mortK.iKos aro rocoKiii/«-"l in Victoria (Australia), iindor Ki;ctioii i.)o of th( ir Act, Sco l.oiiilnn Chnrttnil Ihiiik v, llityes, i V. K. (i:,t 104; a A. J. K. 60 i In re NuIIkih, i S, A. I,. U. i(>(>; Richnrdi V. yonis, ibiil. 167, In Australia, an cr|iiital)lu mortna«co who lodnes a cavi-at anil allows it to laphi) vvitlioiit taking' any fnithor stops to protect himself, will not havi; priority over a punh.iscr at a sheriff s wah; under a fi,fa,,ox apparently aKainst an ordinary transferee of the proprit;tor, if the reKislrar chooses to (lisp»;ns(! with thu production of the duplicate certificate. I'ntclnU \. Mivinscll. 7 V. I., K. (IC) 6, TITLKS KVT, IHHS. V2\\ nutn'mhijf of thr Hiiim- liiiH lu'cu Hov«'r«'»| from tln» nunt'mhip iij till- liinil, in i\w Hiiino inaniu'r and with t\w Hittiio iiici- (lontH ill and with which hu in hy thin Act ciniiowcred to rc^iHtcr hiiul, or uh near thereto aH circuniHtancoi* admit. Imp. M7\- !W V. c. H7,H. 82. Diflef '■'^tn the corroH|X)n(linK Hcctum of the Imperial Act. Tht! k iDmlitiK clniiNn in tht^ lm[)orial St.ituio u styUxl " Kt-Riiilrv of Artvov.'iionH and Special KtirLMliiuminilN," nml it in apprehett iniiHtnition. HH» 'l'h(; followinf* ('UiU'tnicntH whall ho made with respect to ro^iatration of titio: — (1) Thero shall not ho ontorod on tho rcj^iHter or ho reocivahle hy tlio Master of TitloH, any notico of any truHt, implied, MresH, or conHtructivi.' ; (2) > "Hon Hhall l)u rogistcjred aw owner of any undi- vided Hiiit.. in any hmd or char^?e ; and a numher of pcrHonH exceedinf» the prcHcrihed numher sliall not ho rof^iHterod as owners of the eamo hmd or cliarjjo; and if the number of persons showing title exceeds the prcHorihed number, Huch of them not exceeding; tho proHcrihed number an may bo agreed upon, or an the Master of Titles in case of ditTerenoe decides, shall be registered as owners ; (3) Upon tlie occasion of the registry of two or mort? persons as owners of the same land or of the same charge, an entry may, with their consent, he made on tho register, to the otiect that when tho number of such owners is reduced below a certain specified number, no registered disposition of such land or charge shall ho made, except under the order of the Court; (4) In such a case the words "no survivorship" in the? entry shall be construed to mean that in case any one of 9 ^mtm r ' ' ! 1 '^ I. 180 TIIK I'I10VIN(!K OK ONTAHIO. the ownei-H hIiouIiI die, no niKiHtcrcd diHpoHition of tlio land or cluirgo Hlmll ho inado ('xco|)t under onlor of tho Court. (5) llc^iHtci'od land hIuiII ho deHcrihcd in Huch manner aH the ^^aHt(U• of TitloH thinks hewt calcuhitod to Hccuro accu- racy, hut such (ioncription Hliall not he conehiHivo as to the bouu(hirit'H or extent of the ru^iHtenid hmd ; (()) No alteration Hhall ho inade in tlio rogisterod doHcrip- tion of hind, except under tho order of tho Court, or under section 9(5 of this Act, or by way of oxphination ; hut this l)rovisi()n shall not he construed to extend to registered dealings witii registered land in separate parcels hy the registered description, although such land was originally registered as one estate. Imp. 88 i^- m) V. c. 87, s. 83. Taken from ihe Imperial Act omittiiiR subsections 4, 7 and 8 of Imperial Act, which lit) not apply to Ontario. Keferriiis as to (4) the land registered in name of husband and wife ; (7) referring to stamp duties, and (8) to successive duties ; al' ;i reference in sub-section 6 to section 97, which reference is not in the Imperial Act. (i) This sub-section follows the principle laid down by Sir Robert Torrens, when he first created his system of transfer — The Abolition of Trusts on the Register. The Act throws sulficient protection around any person having a beneficial interest by means of the caveats and inhibitions mentioned in sections 58 to 61, 62-65 to 70. " The registrar shall not enter in the register book notice of any trust, whether express, implied or constructive (a) ; but trusts may be declared by (a) Notwithstanding this provision, the Crown Lands Department has ointinued to issue grants, leases, and treasurer's receipts to persons described tlierein as trustees, executors, or administrators, as the case may be, and in all such cases notice of a trust actually does appear in the register book. The pr.ictice ot the Office of Titles is to specify any trust existing at the time of tlu- application to bring land under the Act as encumbrances on the certificate. .V registered proprietor who is known in the Office of Titles to hold in a fiduciary capacity, and whose power of dealing is not limited by having the trusts specified as encumbrances on the certificate when it is first brought under the Act, is called " a special owner," and is dealt with in a peculiar manner. A settlement under the statute is made by transferring the land to the intended trustees. No reference to a settlement or marriage should appear on the transfer, but it is well to state a nominal pecuniary con- sideration in voluntary settlements, as that will insure fhe issue of a THE liANI) TITIiKH ACT, 1885. 131 any docuiiuMit, and a ilnplirato or an attested copy tlicicof may be deposited with tlie reRistiai for safe custody and reference (A), and the cnm- missioner, should it ajipear to him expedient so to do, may protect in any way ho may deem advisable the rights of the persons for the time Li;ing henefkially interested thereunder, or thereby required to give any con- sent ; but tiu; rights incident to any proprietorship or any instrument, ven, donn, or be«n paity to, and shall otherwise represent such person for the purposes of this Act ; where there is no Ruardian or committee u{ the estate of any such person as aforesai{ .iny notice, the Master of Titles shall act in the matter, rccjuiring such notice to be Riven, in such manner as he shall think fit." Purclutaers not ajfectcd hy omiKsion to send notices, 11:1. A purchaser for valuahlc consideration shall not he afl't^cted hy the omiBsion to Bend any notice hy this Act directed to he given, or hy the non-receipt thereof. Imp. 88 iV 89 V. c. 87, H. 1)2. The prescribed period when unreturned notices sent through the post are to be tjonsiilered as having been received is within seven days, exclusive of the day of posting,'. Where anything is required to be done within a certain number of days after service of the notice, these seven clear days must therefore be added to the number of tlays in question, if the notice is served through the post. Hy rule 54, the Master of Titles is enabled to extend the time limited by general rules for any purpose. Rule 55 provides that " no entry in the register shall be set aside or called in question by reason of any irregularity or informality in tht proceedings jirevious to the making thereof." No similar provision was contained in the [.and Registry Act of i8t2 SPECIFIC PEUFORMANCK. power of court in suit for specific performance. 04. Where a suit is instituted for the specific ))crform- ance of a contract relating to registered land, or a registered charge, the Court having cognizance of the suit may hy summons, or hy such other mode as it deems expedient, cause all or any parties who have registered estates or rights in the land or charge, or have entered up notices, cautions or inhibitions against the same, to appear in the suit, and shew cause why the contract should not be THK LAND TITLKH ACT, 1H85. 141 Hpccifically performed ; and the Court may direct that any order made l>y the Court in the suit shall he hindinj,' on Huch parties or any of tliem. Imp. 38 & ai) V. c. 87, h. 95J. Same as Imperial Act jH & 37. Siilijj'ct to liny «'statos or ri^litx jic(|uirtMl hy rt'i^iHtnitioti in putHiiatict) of this Ad, if any porHon Ih iij^^rit'vcd hy any entry made, or l>y thu onuHsion of any entry from the re^^iHler under this A(^t, or if default in made or unneceHsary delay taken plaeo in niakin^^ any entry in the ro^iHter, any pernon aj^j^riovod by Hiudi entry, omission, default, or delay, may apply to the Court in tho proscrihed manner for an order that tho rej^inter may ho roctiliod ; and tho ('olr.-t may either refuse th(! application, with or without eostB, to hu paid by tho applioant, or may if satis- lied of tho justico of th(! case, mako an order for tho roctitieation of tho re^^iater. Imp. !W \- 3U V. I 1 S.'inu! as Iinpiiial Act. " To the Court " llijjh Court of Justice, or any Ju'l^e appointed under section 124. See Rule y). " Upon any application to tho Court bein« made on thn requirement of or apfxjal from tho Master of Titles, or for the rectification of the register utider section plicant and sfttli'd and sij^ned by the Master of Tiths, and forwarded to the Court ihrou^jh the oflico before the hearing. " (2) All applications to the Court and appeals from the Master of Titles shall be in the same manner and subject to the same regulations (as nearly as may be) as appeals from the Master in Ordinary or Master in Chambers under the Judicature Act and Rules. "(3) No appeal from a decision or order of the Master of Titles, or of the Court, shall allect any dealing for valuable consideration duly registered before a notice in writing of such appeal has been lodged in the office on tho p.irt of the appellant, and a note thereof made, on his api)lication, in the register. " (4) No appeal shall be brought from a decision or order of the Master of Titles, or of the Court, after 28 days from the date of such decision or order, without leave of the Court. " (5) Service of any order, or official copy order, of any Court on the Master of Titles, shall be made by leaving the same in the office, and an application shall be left at the same tine for the "-ectification of the register being made, or any other act being done, in accordance with such order, and the matter shall be proceeded with as the Master of Titles shall direct." TlIK LAND TITI.KH ACT, 18H5. iia Miintvra tit nhfjf nidiTH nj till' ntltrt. 1IM. Till' MiiHtor of TitlcM hIiuII olx-y tlu' (ndvr o'f any coiuputiMit Court ill relation to iitiy I'f^^iHlcrtxl laiul, un beiiiK H(>rv(>(l with tii<> order or an otlioiul co[>y tlturoof. Imp ;JH A: W.) V. c. 87, h. 1)7. Same as Imperial Act. An to "competent (%>urt," for the mom part theiie onlcrn will l>o inminil by some divinion or brnncli of "The Suprem«' Court of Jmlicatiiri! foi Ontario." yiie!Htion» mixht arise, hn^nver. whether in »oinn ca-jes thi- County Court (under unction 20 U. S, <). cap. 4J,) or SurroKatc Court woulil not bo a "cornix'tent '"ourt. " This will have to he dcturminiHl b) tlie Master of Titles when the occasion arisen. )urt lM;rs the id an { the such shall AH TO FUAII). Fraudulent dinjioiiiliiins. 911. Huhjoi't to tlio provisionH in this Act contained witli rcHpoct to rej^iHtered diMpositioiiH for vahiahlc! consicU'ration, any dinpoHition of I;iiid or of a char^^e on land which if unrcKiHterod would Ik; fraudulent and void, shall, ncttwitli- standiiiK rcgistratiou, ha fraudulunt and void in like manner. Imp. 88 \- !J1) V. c. 87, H. \)H. As to voluntary dispositions, see 13 Kliz. cap. 5, and 27 Kliz. cap. 4. SKpin'csniDn of dccth oud cvidrncc, 100. If in the course of any proceeding' under this Act. any person aetinj^ either as princii)al or a^;ent, shall, knowii)"' "id with intent to deceiv(>, make or assist, or ioir m or be privy to the makinrj of any material false .ement or presentation, or suppress, conceal, or assist .u' join in 01 ,m privy to the supi)ression, withholding^ or I'cmcc iing any material document, fact or matter of in- form, (ion, every person so actint;; shall he deemed to be ;,'uilty of an offence und^ this Act, and on conviction shall IT w yi IH THE I'UOVINCR OP ONTAIIIO. he li»il)lo to be iinpriaoiuid for a tt^rra not exceeding two yeaiH, with or without hard lal)our, or to bo fined such huiu aH the Court by which he is convicted shall award. Any certificate of title obtained by means of such fraud or falsehood, shall be null and void for or against all persons other than a purchaser for valuable consideration without notice. It. S. 0.. c. 110, 8. 47 ; Imp. m S: 39 V. c. 87, s. <)9. Partly new, " Any certificate of tillo, " etc., bein^; added. Chielly taken from the yuietinj; of 'Iitlos Act, K. S, O. cap. no, s. 47. See sections 48, 49, 50 of ay Vu t. cap. 25. The ntiietinn f giving a (lualified title. 11 carries to its legitimate length the principal of assurance. In all the Australian Colonic? a contribution is required to the Assurance Fund, where land already under this .\ct devolves upon the d.ath of the owner. Thi? ds a very proper provisicm ; in the hrst place, because the person on whom the land devolves, gets it for nothing, and' therefore does not feel the tax a hardship, and in the second place, because this link in the chain of title is always the weakest. Most of the defects in the chain occur in this link. (2) Whether it is advisable to charge as much as one-fourth of one pi^r cent, may be a question. In South Australia they found that the fund accumulated so fast that they had /jo.ooo they did not know what to do with it. They accordingly put it into Court Buildings. The drain on the fund has been proved in Australia to be very small iiulee i, compared with the accumulation. As this Act is m a great measure tentative, if the Government ascertain that there is no reason fo- such a tax as one-fourth of one per cent, they will probably amend it. The practice of the Master of Titles-in Toronto is very simple Prac- titioners are only required to make a simple affidavit or altirmation, that the land in the ajiplication is not over the value of dollars. This should be either attached or embodied in the affidavit under I'orm, 5 at the time the papers are presented to the Master. It may be put in at any time before the certificate of title is issued. The practice under sub-section (3), as carried on in Toronto, seems to be c.ipable of improvement. In one case, an owner made application for the registration of a piece of land worth $Goo. The assurance fund fee on that would be $1.50. In order to pay this trifling amount, he would be required to atf^nd at the Acct. Office in Osgoode Hall, write a priecipe to pay money into Court, get a direction from the accountant, take it down to the ' I 1 1 \\\ \l\ MH THE niOVINCK OK ONTAltlO. Bank of Commerce on Yontin Stroet, anil, ('in.illy, pay in flu; money, and send the certificate to tlio Master, at a cost uf Jt.jo. It would be niiuh better it there ueie stninps for the Land Titlcr. Odici.', so that all sums nnder .■Jiooniinht be paii! in st.'inijis. (4) This provision is made for the purpose of ascert:linin^; the true value of the property. (5) " A sworn valu.Utjr." \\'l;o is to appoint the vi;luator if the owner and Master of Titles do not ayree ? Remedy of persona icrDiKiJidli/ tleprived of hituL 1 I im lOU. (I) Any jierson wrongfully doprivod of land, or of sonio estate or interest tliorein, by reason of the land being bronght mider this Act, or by reason of some other person being registered as owner, or by reason of any mis-descrip- tion or other error in any Certilicate of Title, or in any entry in the liegister, shall be entitled to recover what is just, by way of compensation or damages, from the person on whose api)lication the erroneous registration was made, or who acfiuired the title through the fraud or error. (•2) But this is not to be construed to render liable any purchaser or mortgagee })onn jlde for valuable consideration by reason of the vendor or mortgagor having been registered as owner through fraiul or error, or having derived from or through a person registered as owner through fraud or error, whether the fraud or error consists in a wrong description of the property or otherwise howsoever. (8) In ease the person so wrongfully deprived is unable by such means or otherwise to recover just compensation for his loss, he shall be entitled to have the same paid out of the Assurance Fund, so far as the Fund may be sufficient for that purpose having reference to other charges thereon, provided that the application is made within six years from the time of having been so deprived ; or, in the case of a person under the disability of infancy, lunacy or unsound mind, within six years from the date of which the disability ceased. i 'J TIIR LAND TITLKS ACT, 1885. 141) (1) The liability of the Fund for compensation and the amount of comijcnsation shall (subject to appeal as in other cases) be determined by the Master of Titles, unless the Court or Master of Titles on ap[)Iic'ation directs some other way of ascertaininj:; and determininf^ the same. The costs of the i)roeeediii{4s shall be in the discretion of the Master of Titles or the Court, as the case may be. (5) Where any sum has been paid out of the Assurance Fund on account of a person on whose application the erroneous registration was made, or who acijuired the title through the fraud or error, the same may afterwards for the benefit of the Fund bo recovered from such person or liis estate, by action in the name of the Miister of Titles ; and the Master's certificate of the payment out of th«' Assurance Fund shall be sutficient proof of the debt. ' ! (i) The Victoria Ac; (section 144) roa;li duties anil with cxtraortlinary powers." The Master of the Titles under the Ontario Act has the same, if not greater powers. Forms, under the direction of the Master of Titles in Toronto, have been printed, and are for sale by Joseph Doust, 5(S, Adelaide street, Toronto. See advertisement. f * It : W Tin; LAND TITI.KS At T, IHH'). I'oircr of' Mailer to Hiimiiion irit'ii'SHas. ISl I01I. (1) Tlu; Master of Titles, or miy nlVKMr of the Ollico of Liinil Titliis iiiitliorizecl l»y him in wriliii},', or any person authorized f(»r a like |Mn'[)ose unth'r thu llcijiHtrii Act, iiiiiy adtninister an oath or at'tinnaiion for any of the pur- [)oses of tliis Act. ('2) Thu Muster of Titles may, hy summons under tlio seal of tht; otVuto, reijuiro tlu; attendance of all sncli persona as he may think lit in rohition to the rej^istration of any title. (U) Ho nuiy also, hy a like summons, recjuire any person having' tlio custody of any map, sin'vey, or hook nni le or kei)t in pursuance of any Act of Parliament tt) produce such map, survey, or hook for liis inspection. (4) lie may examine ni)on oath any piTson appearin;^ l)efori! him and administer an oath iiccordinj^dy ; and ho may allow to every person summonetl hy him the reason- uhlo charj^es of his attendance. (')) Any char.'^es allowed hy the Master of Titles in pur- suance of this section shall he deemed to he char}i;es incurred ijn or ahout proceedings for re;.;istration of land, and may he dealt with accordingly. Imp. 38 vfc 3!) V. c. 87, see. lOlJ. The Registry Act is c.ip, iii K. S. (). section 43, spucitit s tlie jitsdhs before whom aflidavits can l)e inatle, as follows: — " livery affi'lavit nuiiu under tlio authority of this Act shall be made bifore some one of the fullowiiij; persons: — " (1) If made in Ontario, it shall be made before the R'^iistrar or Deputy ivej^jistrar of the (bounty in which the lands lie ; or before a Judj;e of any of the Superior Courts of Law or Equity ; or before any Jud^o of a County I'ourt within his County ; or before a Commissioner authorized by any of tiie Superior Courts to take affidavits. 31 V. c. 20, s. 41 (i). Or before any justice of the Peacj for tiio County in which such affidavit is sworn. 39 V. c. 25, s. 3. " (2) If made in Quebec, it shall be made before a Judge or F'rothonotary of the Superior Court or Clerk ot the Circuit Court; or before a Coin- inissioner authorized under the laws of Ontario to take, in Quebec, ill Hi ■i i ! 'f 1R2 Till". rnoviNcR nt' ontauio. afli lavits in an 1 fur any of thu rmirts of Ucconl in thu I'rnince of Ontario; or heforo any Notary Public in (Jiiel)ifc, certitin 1 under his oftkial m-al. ji V. c ii). s. .(I {z) ; 34 V. r, 14, is. i i^ f); (*. S. (*. c. 7Q, s. 3. " J. If nia Ir! in ( Jrts.u Miit.iin or Inilanl, it shall Ix; ma !•! before a JikIki! of the Supremo (^ourt of Jii lioature in liiiKland, or of the ('ourt of Session or the lusiiiiary Conn in Sc itland, or of tin? Hi^h Court if Chancery, or of tilt" Court of OiiivMi's Hcnrh, Common I'lias, or l"lxcli(!i|uir in In-land; or befiiro a Ju !,'«! of any of the County Courts ssithin his County; or l)cforo thi! M iv>r or Chief Magistrate of any City, IlormiKh 01 Town coiporato therein, and certiti; 1 nn ler th-; common seal of such City, Horoui^h or T >wn corporate; or before a LoniniisHioner authorized to administer o.ith'iin th>! SnpriMiie ("ourt of [Mdicatuie in ICn;;laiiil, or before a Coininisaoiior authorized by the laws of Ontaiii to take, in (iicit iirilain or Ireland, athdavits in and for any of thui'oiirtsof Record in the Province of Ontario; 01 before any Notary Public ceriilied under his ollicial seal, ji V. c. j(), s. 41 (j) ; u ^- '• '■!• !<»• [aHtcr of Titles ujidcr tlu' powers of this Act, ho shall incur a ponalty not (•xcocdin;,' lilty (lollurs, to he rrcoverod on suininary conviction (2) Hut no person shall ht; r(!(iuir((l to attend in ohcdienct' tt> any Hununons, or to produce such docinnents as afore- said, unless the roasonahlo charj»es of his attetidance and rnor may appoint a person to act as the Deputy of tho Master- durin<4 such illness or ahsence, and such Deputy, while so actinj:;, shall have all the powers of tlie Master. Stats, of \'ictoria, 1800, s, 0. such jlects lor to lits as liswer This is taken from the Victoria Act for the most part. rhe Victoria Act, however, s,iys that " such deputy, while acting under such appointment, shall have all the powers and perfonn all the ttutirs of the officer for whom he may be deputy." Oath of office. lia. The ^faster of Titles, hefore ho enteie upon the execution of his office, shall take, hefore some Judge of liJIr i I 154 Tin: I'llDVINCK OK (INTAIlH). tlio Sii|)r<'iMi> ('(iiirt of tliin I'ruviiicu tliu uatli of uiVici.' in tint form rollowiii^ : — I, .1. /^, sni)- 'I'll- l''irst M.istcr of Titlcis i.i f, W, bcitt, foniuirly Dipiity Atlnriity- ficiitral. Mr. -HUJtl is likely to niaku ;i vmy ^>>inteil such a ^ooil Master. Hu i.H careful and <|iiick ami takes an ciiuitahlo view of the provisions of the Act; add to this his eviilc-nt dt-sire to c.irry out its pnnciiilfs witliont nnni;i;t;ssaiy del.iv and iixpens(!, a.isisiinj^ practitioners in pas.sin;^ titles, and ihrowinK no t(!clinii:.il an! trivial stuniblinkr blocks in the way. 'J'he app )iiitini;;it of Mr. -iMtt so f.ir ^ives s itisfactioti, and wi; have; no dmibt, as titni! K'»'-< "n, this s.itisfaction will increase. The first certitic ite liiat was issued uiuler tlu; .\it was taken out by Mr. Clark, who availi-d himsdf of iis provisions, in ordi r to do away with tl;5 hIiuII Iiu voril'u'il iiiiilti' outli Uy ii HuliHcriliin^ wiltii>HH ; iiiiil hiU'li 1)1)11(1 tiiid till' iitViiliivitH of jiiMtiUcittioii hIiiiII Im> in tlio Conn ill llm Hi'lntliiU» to this Act, or to tlic liki' tlVfi't, iiml witli till' iilViiJiivits iip|ii'nil('(|, hIi:iII lie fortliwitli iniiiHiiiittcil to till' I'roviih ial SiiiTi'tiii'V, to lie H'( i| in liis ofVu;«'. There does nut appear to lio ntiy furin in titu iichediilc. iC/C I II HI 1 1 H irlii'n ii'iiiiini I. 115. Tlic ^fristiT of Titles hIiiiII, when roc|uirl thn Mictions alliii|«>l to nru U. S. O. c. iii, oecii. j3, 33, ntvlf^r till) i')niniissioii whu;h wr.s npixiinlcd in Rotith Anslrilii to <'x;unine into ilic worUiiij; of the Torrt-ns System, tlio m inner of kLfpiiiK indexes w.in thoruuxlily inveHii);atei|. It in prohahlu that rxiwrienct.- will clncidale !»oin«> itnpiovenii-ntH in our |ir<'H»Mit svslntn. In tliij City of Now York .liso tliH branch of the sy.stonj li.xs received aitcntiun. bee l riri.KM ACT, iHHS. 167 to ■111 ;«. II n ivntl tins il or IUhI ffson 57- s not come into It foi lltn cxprntM piirpoKt* ij| inclilliiii^ with uihi^i iifoplc « l)u«ineB«. Without th« coriMMit of ihr Manlnr of TttUtN iheM* " I'uiil Try* ' will li« eilop|w>l. " It will Ui ciinvanii'Dt to iiitri»|iiiti nii (-kiiruM authority l<> iit*|)ivl tho reK>'*l''r ^vilh any coniriut with a nv tha Muntfr of Tilh's inil»"nn c<)rri'H|i(iii>iinK a« nr.irly nn iiiny Ixi to ih«> itnlcxfN |>rovulc." The IxioliH, ftc, UN>', H. r>;{, .Indicatiu'e Act. Sec section 120. Power is ample. Potrrr to )ii(ilit' fiPthnil ntlft. 120. Subject to tlu! provisions oi" this Act, tlie Fiieuteii- antdovcrnor in Council, and the .lud<,'es of tlie Supreme Court under tht; nith and a'lth sections of 'I'lic Onturin Jitdirtitiirc Act, /SS/, (which are to be n ad as applyin;,' to this Act), may, respectively, with the advico and assistance of the Master of Titles, from time to time make, and aftei- making may rcbcind, annul, or add to, general rules in * Charley, page 264 ; L'rlin & Kiy, page 140. ! ir>8 TIIK I'UOVINCK Ol" ONTAIMO. i i\ V. t rcHpoct of all or any of thf followinj^ iniittcrH ; tliat iH to Hay— (1) 'J'lio iiio, in, 11, 12; (\ tice to (.lUtions) 17; (Nf)tire as to (picstions arising' duiinK H'nisiralion) j'l ; ;-.i] (I'rcpar -tion and H»;r\iti! of nmii c^) '•,5, " The evidence to Ik; addiii 'd " fMnci.'d l; (l',vid':acv :v.> V. c. MT, s. ill. JliiiCi r'Sji('liii(i h'lH. I'-Sti. 'I'Ih! Jiid;j;es aforesaid may fi'oin time to time make, and ai'lei" mtikiii^' revoke, iiltt r or add to lules with r(;si)(;ct 1.0 *'•" ainouut of fi-es payiihle niidrr this M-X, re^^ard being lifni to tlie followidg iiiatterN : til in the ca^f of the lej.'istration ol land or of any transfer of land on the oc( isioii of .sale, — to the vahu; of the laiid, as (l('t(;rniineil hy the amount of pureha^r money; (2) In th(i case of the re;,'istration of land, or of tiny U'a:isft;r of land on the occasion of a sale, — to the value of the land, to Ixi ascertained in such manner as may l.e prc- scrihed ; :! '' ■ i '1 i • I 160 THE I'ROVINCE OF ONTAUIO. (8) In the ca»e of registration of a cliargo or of any transfer of a char'ro, — 1<» the atiiou.it of such charge. Imp. HH i^ !V.» V. c. 87, s. 112. Same as Imj'erial Act. There is no rul*" pwblishi-d yet (N'ovtyriber, 1885) prescribing the fees. Thf Knulish fees un-ler this section are: "On the V'th of DocemU'r, 1875, I.onl Cairns, C, issued, -.vith the concurrence of the CDnur.issionrrs of the Treasury, the fullowing Schedule of Feus under the present section («) : — i s. n. For every abstract lodged in the office 010 o For examination of abstract with d«eds, where made by clerks in the ottJce, for every hour or part of an hour 90 engaRefl. ... o 5 o For the entry of first proprietorship, if the value of the property iloes not exceed 1,000/ , for every 100/ or fractional part of 100/. of t!ie \'.iliie theri>of o 5 o If the value exceed i,i>(.o/ , hut does not exceed 5,000/., then for the first 1,000/. at the late aforesaid, and for every additional mo/, or fr.ictional part of 100/. of the value thereof beyond the lisst 1,000/ o 3 o If the value exceed 5,000/ , but does not exceed 20,000/., then for the first 5,000/. at the rate aforesaid, and for every additional loo/, or fractional part of loo/. of the value thereof beyond the first 5,oof)/ o 2 o If the value exceed 20,000/., then for the first 20,000/. at the rate aforesaid, and for every additiiuial 100/., and fractional part of 100/, of the value thereof beyoml .'o.ooo/ o i o In the CISC if a mssessory title "■>" "' *"•'' "' '''l' above kts .IS .iri' a, plicablu. I'or every land ci:i tilicate or ollice C(i[)y lease : — if tlie value of the pioperty comprised thc-rein does not exceed 1 ,000/ o If the value exceed 1,000/., but does not exceed 5,000/ o 15 If the value exceed 5,000/., but does not exceed 10,000/ i If the value exceed 10,00.1/., but does not excted 20,000/ 2 If the \alue exceed 20,000/., but does not exceed 40,000/ .... j If the value exceed 40,000/. 5 For every special laud certificate o For altering land certihcate under 2Qth section o 10 For an endorsement under 34th sectii n on an ofhce copy regis- tered lease, not being then first issued o 10 7 5 n 5 (s) "The fees have been fixed on the same hnv scdli' as those payable under the Act of 1862." Holt on Registration of Title, 131. FF 7 o 5 o o <> o o 5 o lO o • able THE LAND TITLES ACT, 1885. 161 Tor every new land tertificale or oflice Ciipv of regis- Thpsauw! uc as on an , , , ... r.- r. 1G6 THE PllOVIN'CE OF ONTAIIIO. Vi (!* LAND TITLES ACT. ; It GENERAL RULES UNDER SECTION ikj. SCIIEDULK t)F RULES. I'llOCF.KDiNdH FOR A FlItST lIlXilSTUATI. 'K. Application /or lu'^jitil ration. 1. The nppliciation for a first rc^istratidii of land under this Act, hIuiII Htatc the natnro of tlio intercHt of the api>li- rant, and a jL^cncral deneription, in concise terms, of the land ; it siiall also state whether the re^^istration a[:plied for is with an Absolute, a Qiialilied, or a J'ossessory title. ('2) Where the ap[)lication is for the registration of a nouiinee, or is made by a purchaser, tlie consent in writing of the nominee or his solicitor, or the vendor or his solici- tor, shall he left with the application. (8) Where the api»lication is nnide by virtue of a trust or power of sale, the consent in writing of the persons, if any, whose consent is recjuired to the exei'cise of the. trust or power shall be also left with the application. Ikule 1, 12, and Form G made under Imp. Act, 38 & 39 V. c. 87. Possessory Title. 2. If the application is for registration with a Possessory title only, there shall be left in the office with the applica- tion an affidavit made by the applicant (or b}' one of the applicants, if more than one, or by some person whose consent is required to the application) and his solicitor, to )f a ici- rust IS, if TUB LAND TITI-KH ACT, iHHf). 167 tlu' beHt of their rt'Hpcctivo kiiowlcd^o, infonimtiou luul belief, verifying tlio (leHcription. and to tlio itTcct tlmt the applicant, either alone or with the person (if any) consent- hn; lo Hueh ap))lieation, and eith(;r suhject or not to inciun- l)rances, is wcdl entitled for his or their own henelit, or as holding the land on trust for sale, or as a trustee, mort- Rafijee, or otherwise having a power of selling the land uis the case may he), to an estate in fee simple, (»r the power of disposing, hy way of sale, of an estatt! in fee situide in the land, that the actual possession or receijjt of the rents and profits thereof is in accordance with the applicant's title, and that the applicant (or his nominee) is entitled under the Act to he registered as the owner of the land, and that the documents of title (if any) mentioned in the schedule to the alUduvit comprise nuKtngst others (if tho fact he so) the last conveyance or other document undir which the applicant's title is derived. (2) Such notice (if any) of the «[)plieation for registra- tion, or of the registration, shall he given as tlu' Master <.tf Titles may direct. (3) Where the Afaster of Titles is hatistied that it will he proper to grant the application, tho registration may ho made accordingly. Pronfii. 3. If the application is for a Ih'st registration with absolute or qualiiied title the application shall be sup- ported by the following particulars, unless any thereof shall bo dispensed with by the Maste; of Titles : (1) The title deeds (if any) and evidences of title relating to the land which I've in tho possession or power of the applicant ; (2) A certified copy of the memorials of all other regis- tered instruments atfecting the land, or of all since the last judicial certificate, if any, under the QuietiiKj Titles Actf was given (as the case may be) ; ' tj i FHIPP ,1 f ■ ; 1 ! 1 i 1 1 f ■ 1 ii i.^ lOH TIIK I'llOVlNTK OK ONTAlHO. (8) Tht! ocrtiliciito of tlu' HtKiHtnir of tlic County or otiior Ho^'iHtriition I*iviHoit in wliicli tlm land lies, kh to HttitH iiiid procci'tliii^'H n-latinu to tiir liind ; (i) I'roofrt of liny fiu'tn wliicli iin- r«'(|uir('(l to he proved in order to nmkc out tlit* titi(>, and wliiitli aif not t>Htal)liH)i(>d l»y tin* other produced documents, unle.is the MaHter of Titlt'H nhnll diHpenne witli HUch proofs until a future HtaKo of the investij^ation ; (5) An iittiihivit, or depoKition hy tho person whoHo title is to he inveHti^ated. and a certilicate of one of his counHel or HolieitorH, t() the etTeet hereinafter renpeetively mentioned, unleHH the Manter of Titles sees tit, for hoiue speeial reason, to diK))ense with the Hanie rcHpectively ; ({'»} \ Sclu'duie of till' piirtieulars produced under the precedinj» five siih-Hections. It. S. 0. c. 110, H. 7, Imp. Act 88 and :VJ V. c. 87. B. 70. Ajjidavil of AppUt'iint. 4. The application or deposition of a person whoso title is to he investigatod f.hall state to the etTeet, that to the hest of his knowledge and holii'f h(> is the owner of tho estat.) or interest (whatever it is) which is claimed in the applkcutio:>i, suhject !»nly to tho charj:;es and incumhrances Hot foi'th ill tlio application or in the Schedule thereto, or that there iu no charge or incumhranci; affecting tlu^ land ; that the deeds, wills, and instruments of title which he produces, and of which a list is contained in the Schedule produced under the preceding rule, are all the title deeds and instruments of title relating to the lands which are in his possession or power; and that he is not nware of the existence of any claim adverse to or inconsistent with his own to any part of the land or to any interest therein ; or, if he is aware of such adverse claim, he shall set forth every Buch adverse claim, and shall depose that he is not aware of any except what lie sets forth. ..^•^M.kitl THK LAND TIII.KM ACT, IHHfi. h\\) (2) Tilt' alVnl(ivlt or drpoHitinii kIiuII hIso hvI forth wlntlnr any one is in iioMHcHHioii of tlir Intnl. iiikI iiinli r wliut chiiiii, ri^lit or till)' ; iitid hIiiiII Htiiti* that to the hi>st of thf df- poiK'iit'H kiiowh'd;^')', inroriniition aixl Ixlicf, th<> Htiiii iilli- (liivit ur dopoHition, and thr other papttrn proihiccd thi'ro* witli, fullv and fairly diHcloiHc all factn material to the titio ciaiiiu'd l)y tlu> applicant, and ail contractH and dralin^H uhichatYcrt the Hiirno or any part tluTcof, or ^ivr any ri^?ht as a^aitiHt tht* applicant. Cl) 'I'll)' said alVidavit or dcpositioti may, in a proper caHi', l)t^ dinpenwed with, or may he made hy some other jierson iiiHtead of the pernon wIiohc tit'e in to ho invoHti- l^ated, or an allidavit or deposition iih to part may he niado hy the one, and aH to part hy another, at the diHcretion of the MaHter of Titles; and in Hueh cafto, the allidavit shall bu moditied accord in;;l v. U. S. 0. e. 140, 8. H ; Imp. Act WH and JJ!) V. c. 87, fl. 70. Forms !l and 1, made under Imp. Act. ,itlo tlie tho the ncos I), or ind ; i hu dulu eeds re in the i\ his , or, ivery ^reof Ccrtifuuitc of CnutiHr} or Solicit .^ #1 6^ <^/#' % ^^ '% r^^ 23 WEST MAIN STREET WEBSTER, NY. MS80 (716) 872-4503 "W (/J m 170 THE PROVINCE OF ONTATlIO. Mode of Proof. 6. The proofs required may bo by, or in the form of aliidavits or certificates ; or may bo given viva voce ,- or may be in any other manner or form that, mider the circumHtanceB of the case, is satisfactory to the Master of Titles in regard to the matters to which the same relate. E. S. 0. c. 110, s. 11. Payment of Taxes and Assessment!!. 7. Before the completion of a first registration of any lard under this Act where an examination of title is re.. lived, satisfactory evidence shall be given by certificate, affidavit Oi. otherwise, that all taxes, rates and assessments, for ^"' ic'' the land is liable, and which are past due, have Ueei. ,1, or all except those for the current year have been pa\l. K. S. 0. c. 110, 8. 12. Production of Further Evidence. 8. If the Master of Titles is not satisfied witli the evidence of title produced in the first instance, he shall give a rea- sonable opportunity of producing further evidence, or of removing defects in the evidence produced. K. S. 0. c. 110, s. 13. Publication of Notice. 9. Before the completion of a first registration as afore- said, the Master of Titles shall, except as hereafter pro- vided, direct notice of the application to be published in the Ontario Gazette, and, if he sees fit, in any other news- paper or newspapers, and in such form and for such period as he thinks expedient. (2) The registration shall not be completed until after the expiration of at least four weeks from the first publica- THE LAND TITLES ACT, 1885. 171 tion of such notice, or such other period as the Master of Titles may appoint. (3) If the Master of Titles is satisfied respecting the title, and considers that the registration can safely be completed without any other notice of application than the published notice so recpiired, ho shall complete the same accordingly (4) Notice of any number of applications may be inchuhd in one advertisement if tl.c Master of Titles thinks fit, and in such case the expense of the advertisement shall be borne by the several applicants in such proportions as the Master of Titles may direct. (5) The Master of Titles may dispense with the adver- tisement where the applicant is the original grantee from the Crown, or produces all the title deeds by which the title is traced from such grantee, or where he has obtained a Certificate of Title under the Act for Quieting Titles to Real Estate ; Provided in every of such cases that he is in actual occupation of the land, or that the land is wild, and he is in constructive possession thereof by having paid the taxes thereon, and that no instrument or caution affecting the title has been registered. Victoria s. 18; Queensland, Act of 1861, s. 18; New South Wales, Act of 1862, s. 15 ;'New Zealand s. 23 ; Piules 10 and 14 made under Imp. Act 38 and 89 V. c. 87 ; li. S. 0. c. 110, ss. 14, 15. Notice to Adverse Claimant. 10. In case there appears to exist any claim adverse to, or inconsistent with, that of the applicant to or in respect of any part of the land, the Master of Titles shall direct such notice as h3 deems necessary to be mailed to or served on the adverse claimant, his solicitor, attorney, or agent. E. S. 0. c. 110, s. 16; Rule 10, made under Imp. Act. 38 & 39 V. c. 87. iW ii ■i \' ' ■< - i'- laii pi m. 9 THE PROVINCE OF ONTARIO. AiUitional Notices. 11. In all cases the Mubtcr of Titles may require from time to time any further publication to take place, or any other notice to be mailed or Hcrved that he deems necesaary before granting the certificate. 11. S. 0. c. 110, B. 17 ; Uulo 12, made under Imp. Act 88 & 3U V. c. 87. Objections. 12. Any person Laving an adverse claim, or a claim not recognized in the application, may at any time before the registration under this Act is completed, file and serv^ on the applicant, his solicitor or agent, a short statement of his claim, which may be according to the form set forth in the Schedule of 7o' ms. (2) This claim shall be verified by an aflidavit to be filed therewith, and shall contain an address in this Province at which service on the objector shall be made. R. S. 0. c. 110,8. 18; Rule 11, made under Imp. Act 88 & 31) V. c. 87. Hearing of Objection. 18. The applicant or his solicitor ehall obtain an appoint- ment before the Master of Titles for hearing any objection which shall have been duly left in the office, and shall serve the objector with a notice in writing to come in and state his objection to the Master of Titles at the time men- tinned in such notice, such time not being less than seven clear days after service of such notice. The parties may be heard in person, or by counsel or solicitor. Decision in Contested Cases. 14. In case of a contest, the Master of Titles may either decide the question of title on the evidence before him, or may refer the same or any matter involved therein to the THE LAND TITLK8 ACT, 1885. 173 Court, or to any mode of investigation vhicli :h usual in ether cases, or which ho deems (!X))edient, and may defer completinf^ the registration until atterwards, according as the circumstances of each case render just or expedient. B. S. 0. c. 110, 8. 11). Securitf/ for Costs. 15. The Master of Titles may, at any stage of the cause, order security for costs to bo given by the ai)plicant for registration, or by any person making any adverse claim. 11. S. 0. c. 110, s. 20. the Abatement of Proceedings, 16. in case of death or change of interest pending registration, the proceedings shall, subject to the provisions of this Act, be avidlable to such person as the Master of Titles on application, having regard to the rights of the several persons interested in the land, may direct, if such person thinks proper to adopt the same ; and the Court or the Master of Titles may require notices to be given to persons becon''ng interested, or may make any order for discontinuing or suspending or carrying on the proceedings, or otherwise in relation thereto, as under the circumstances may be just. E. S. 0. c. 110, s. 44 ; Victoria b. 28 ; Rule 5, made under Imp. Act 38 & 39 V. c. 87. Caution against Entry of Land on Register. 17. Every Caution lodged under section 05 of the Act shall be signed by the cautioner or his solicitor, and shall contain a place of address in this Province at which any notice may be served ; and the affidavit in support of the Caution shall be left therewith and shall contain a descrip- tion of the land. The period to be limited by the notice 174 THE PROVINCE OP ONTAKIO. to be served on the cautioner under section 68 shall be 14 days, or such other period not less than 7 days, as the Cluster of Titles may direct. (2) The notice shall be served cither personally or through the post. Every Caution shall be renewed before the expiration of .5 years from the date of lodging the same ; otherwise it shall be treated as withdrawn. lUilo 15, made under Imp. Act 38 Jk 89 V. c. 87. Proceedings after First Registration. Cdution ttijainst Dealinrj with Rerjistered Land. f', -n 18. Every Caution lodged under section 58 of the Act shall be signed b}' the cautioner, and shall contain a place of address in the Province, at which any notice may be served, and the afiftdavit in support :' the Caution shall contain a reference to the land or cxiarge to which the Caution applies, and to the registered number of the estate, and shall also contain the particulars of the cautioner's interest in such land or charge. (2) The period to be limited by the notice to be served on the cautioner under section 59 of the Act shall be 14 days, or such other period, not less than 7 days, as the Master of Titles may direct. The consent of a cautioner under section 59 shall be signed by him, and shall be attested by a solicitor and duly verified. Rule 16, made under Imp. Act 38 & 39 V. c. 87. Inhibitions. 19. Every application to the Master of Titles for an inhibiting order under section 62 of the Act shall be sup- ported by the affidavit of the applicant or his solicitor, stating the grounds of the application and referring to the evidence in favour thereof. An appointment shall be then THK LAND T'TLKrt ACT, 1885. 175 red 14 be an 3up- Uor, the then made for heaiiii}? the Hamo and for ijrodnction of the evidence in support thereof. Kule 17, made under Imp. Act 83 & 39 V. c. 87. Ixcstrictioitii. 20. Every application under section fi3 of the Act shall state the particulars of the direction or restriction retjuired to be entered on the rej^ister, and shall be proceeded with as the Master of Titles shall direct ; and every application under section (54 of the Act to withdraw or modify any direction or restriction shall be made and signed by all persons for the time being appearing by the register to be interested in such direction or restriction, and shall be attested and duly verified. Rule 18, made under Imp. Act, J38 & 89 V. c. 87. (2) Before any entry is made upon the register under the third paragraph of section 85 of the Act the consent in writing thereto of the persons to be entered as the regis- tered owners of the land or charge, stating the particulars of the entry required, shall be lodged in tlie office. Rule 19, maiie under Imp. Act 88 iS: 89 V. c. 87. Cl!ARGK OF RKCilSTERKl) LaND. 21. The instrument by which any charge of freehold or leasehold land shall be made under section 26 of the Act shall be left in the office, and the execution thereof by the registered owner uf the land shall be attested and duly verified. (2) Where it is desired that an entry should be made on the register negativing the implied covenants referred to in sections 27 and 28 of the Act, or that anj^ entry should be made on the register, contrary to the powers given to a registered owner of a registered charge by sections 29, 30 and 31, respectively, or contrary to the provisions of section 32 as to the priority of registered charges, the t 'I PfT '^ 1 il ! t- 17(5 TICK I'llOVINCK OK ONTAHIO. appliciition to bo niiido in that bolialf hIiiiII Htato tlio particiilarH of tlio entry rniuircd to bo uukU', and hIuUI bo signed, and tbo Hignaturc uttt'stod and voriliod in tlie Hanie manner as is rcqnirod with rtJHpoct to tho execution of the instrnniont of charf^o. (3) Such veriiicution may, wlierc pmctio.ablc, bo mado by the Hamo ati'ubivit as that verifying the (.'xeontion of tho inHtrumont of charge. (4) Where a part only of tho registerod hmd is convpriKod in the inHtrninont of charge, the part ho charged nhall bo doHcribed in hke niainior as is provided by llnlo 24 with reference to a transfer of part of rogiHtorod hmd. (5) In the event of a foreclosure or sale being enforced by the registorod owner of the charge, all the provisions of the said rule 21 shall, so far aa the nature of the case may require, be appli(!abh) thereto. liule 20, mado under Imp. Act 38 Si 31) V. c. 87. TrANSFEII 01' liEiilSTEUED ChaUOE. 22. The instrument by which any transfer of charge shall be made, under section 45 of tho Act, shall bo left in the office, and the execution thereof by the registered owner of the charge shall be attested and duly verified. Rule 21, made under Imp. Act 38 & 39 V. c. 87. Cessation of Charge. 23. Where the cessation of a charge entered on the register is required to be notified under section 33 of the Act, the application shall be signed by the registered owner of the charge, or a registered owner interested in the land, and shall be attested and duly verified. (2) If the application is not signed by the registered owner of the charge, due proof of the satisfaction of the charge shall be left with the application. M TIIK LAND TITI.KH ACT, 1885, 177 (8) The Master of TitloH, upon Ijoing satiHficd of the ccHHiition of a char^^c, Hliall, whore convenient, notify the same hy canceUin}^ the ori{j;inal entry, or shall otherwise enter on the rej^ister the faet of suc.li eesHation. Ihilo 22, made under Imp. Act !)H .V !Jt) V. c. 87. TuANbFKIl OF llKdlHTKUHl) LaNO. 24. The instrument hy whieli any transfer of land shall he made, under section !)4 or !M) of the Act, shall he left in the olVice, and the execution thereof hy the registorod owner shall he at lest I'd and duly verified. (2) A note shall he made on the ref^istercd description of the land retained, referring to the part disposed of. Rule 23, made under Imp. Act li8 & 3!) V. c. 87. Entry Xeriativintj Implied Covenants on TrNiAII|(», proved to the siitiHfiictioii of tlio ^^ast^'r of Titlt-H, and tho umllor hIimII Im- piocrudiMl with an lie hIiiiII dirocf. Jiuki 'if), miidf under liii|i. Act ',\H A- WW V. c. H7. Ih'oth of licijiHicrvd Owner, iiml Dower or Cnrti'Hif. 27. V'iVcry iippliciitinn iindor section K), 17 or r»7 of tho Act, hdmll he Hiipported hy thi' iitViduvit of the iippliciint imd hiH Holicilor, whowiii}^ cdiicinely the oxiHtinj.; rij^htw of tho Beveral persoiiH interestuil in the hiud or charge iilfocted by tho tipplicalioii. (2) The evidence in support of the uppliciition Hhiill he left therewith in the ollice, and the Muster of Titles may require such other evidence (if any) and sucdi notices to he {];iven as he may think lit, and the nnitti'r shall hv. proceeded with as he shall direct. (8) Notice of tho title to an estate in dower or hy tho curtesy nuiy be entered on the re;^ister as an incumhranco. llule 2(), niado under lni[). Act WH S: U!) V. c. H7. Ccusdtion of [ii('iii!il)r(iiiccii cntert'd on Jirxt liCiiintnition and Iktcnnindtion of Lc.'iHe. of Ri'j/iatcred Ltumcludd Laud, 28. Where, U[)OU the first rej^dstration of any freehold or loasehold land, notice of an incumbrance alfectint; sueli land has been entered on tho register, the cessation of which is reipiired to bo notilied under section 2;J of tho Act, the applicant, in case there has been any dealing with, or transmission of, or interest created or arisen in, such incumbrance, not appearing on the register, shall loavo in the office an abstract of his title to make the application and prove the same in tho usual way, and the matter shall be proceeded with in the mode provided in the cases of examination of title on registration, subject to any special directi '.is of tho Master of Titles. (2) "Where there has been no dealing with tho incum- brance, the applicant shall produce the instrument of '4 it TIIK LAND TIIW.KM ACT, l8H/). 17'.) inciiMihraiuM) with a rdiMiHc oi* rt.'ccipt tlutrcoii Hij^iictl hy tlio iti<'iiinl>i-)iM('fr, wlioMM HJ^iuitiirc iiiul idittitily rtliiill l)u duly vtritUd. (I)) Tlic ^[astor of TitlcH. upon hcinj^ natisfuul of tlio (U'HHatioii of an iticiiinliraiicc, sliall notify tli<> Hanic hy canci'llinj,', whi-ro convcnittit, thu ori^'inal entry, or otlu-r- wihe hy tnti'rinj^ on the ri'^^'istor t\w. fact of Huch ctHsatioii. (4) TliJH rulti Hhall, wIutc npplicahlc, extend to ap[»h('a- tions to notify the di'tcrniination of any Icaso of re^istcrt'd k'aKchold hmd, uikUt Hection '21 of the Act. KuK) '27, niadu under hup. vVct :W .t Mil V. e. 87. Soticc oj Lcaai' or Aijrvcmcnt, '2i). Kvery application to rej^ister nr)tice of a lease or a^,'ruenient, un(U'r section ^}^) and nCi of the Act, Hhall contain a concise Htatt'nient of the terniH of the loasu or a^jroetni^nt for a lease to i)e noticed. ('2) If the rei^istered owner t>f the hind attested and duly veritied, and the ap[)l!('ation shall state the terms of the notice proposed to he entered, hut such terms shall be subject to the api)roval of the Master of Titles. (4) The lease or agreement shall be left with the , application, and shall bo stamped to sliow that a notice of it has been entered upon the register. liule 28, made under Imp. Act m & 89 V. c. 87. '.f: nim- ht of I ;:; ll m IHO TiiK ruoviNCB or ontaiiio, I'lUM KKt>IN(tH ON AND AKTKU HkoIHIUATION, A'///n/ an lit I'ln'cpfiottn \ni(hr Strtion 32, MO. Kvi-ry application rjMpiirinj^ an cntr;, to ho nnulo on the r(t;^iHtttr in rcspdct to any of tint liabilitioH, rij^litH and intcrcHtH, that ant hy th» Act (It'clunxl not to he mumuii- hranccH, Hhall Htato tho particularH of thi* ontry ro(]uiriMl to h(t nuide. (2) Thi' «'vi(h'iu'(' in Htipport of th<( applica'Jon Hhall Im' left therewith, and the application Hhall ho prooe(Mh>d with in Huch manner an the Manter of TitleH Hhall direct. Uulo 2H, made uncler Imp. Act !JH \- H<) V. c. H7. The like, ami an to Mines and Miiwrtih iluserereil from the Ltind. lU. Any fact to ho notified on tiio roRister nndor section 22 of tho Act shall he entered in or apiainst tho reKistered doH'-ription of tho land unloHH the Master of Titles othor- wibe directs. CiniilitioiiH. 82. Every application to ro^ister conditions as annexed to land ahout to ho rogiHtercid, or to any rogiHterod land ahoiit to he trannferriid, shall ho made, in case of land ahout to 1)0 rogistorod, either hy tho person who hy himself or nominee is ahout to ho roRiHtored as owner of the land, or with his consent in writing, duly verified, and, in tho case of land ahout to ho transferred, either hy tho person actually registered as owner of the land, with the consent in writing, duly verified, of the intended transferee, or hy such transferee, with th(! consent in writing, duly verified, of the registered owner. (2) If the application relates to any leasehold land ahout to he registered, or to land ahout to he registered with an Absolute or Qualified title, the application and conditions TMK hANt» TITI.KH ACT, lHfir». IHI hIiuII he in uccortliiiii'i' with tlii' titli> cxuniiiii'd hy tlio MtiHtor of VitU'H, iiikI if llic ii|>|ili(-ntioti rilutcH to tiny liiii*l uhout to l)t> truiisfcrrcil, tiio outulitioiiH hIiiiII he* in acconl* unct' with liny coiKhtions iilrtinly i*«'j»iHti'r»'(l. (!)) Ill liiiy I'lisr of coiKhtioiis hrin^ aiiinxcd on npplicA- tion iiiiiicr Hcctinii Hit, or on t'irKt rr^iHtrulioii us arising on tho cxainination of title, a ('opy of the I'onditioiiH, or of tho (tocununt containing thctn, Hhall li(> U>ft in the otlicoi and thf rf^i,*tration of Huch conditioiiH may be inado by ri'fjTi'iuM' on thr rfj^istcr to HUch copy. (4) On tho registration of any hasehold land, held nndi r a h'nse contiiinini,' a proliihition against iliunation witliont licenHc, provision Hhall i)c iiUKh* for pn'veiu ip' alienation without. Huoh license hy an entry on the n^j^istt^r of a reference to such proliihition. liuloai, niadu under Imp. Act :IH it '.'..' V. c. 87. iMud IJcrtijiciitr. Ccrtijliatc nf Charijc, iiinl Sji ritd Certi/trdtr. 81]. Kvory application for a land certificnto or certific. tft of charge shall he nuide hy the rt^istered invner entitled to hav(! and re(|uirin{j! the saine. (*2) A land certilicate shiill heuiuh'r the seal of the otVuu', and contain a copy of the ref^'istered description of the land, and tho name and address of the rej^^istered owner, and su(!h otht^r matters (if any) as may for the time heini^ he entered on the register as atTectinj; the land, and shall state whether the rej,'istered ownership is ahsoUito, (jualified, or [)ossessory. (B) A certificate hy the Master of 'litles, of the application for reKistration, shall ho i j^istered in th(! registry ollice of the registration division where tlu; land lies before the first registration in the Land Titles OtHice is completed, l-'or registering and indexing the certilicate the Registrar shall be entitled to a fee of one dollar. (4) A ^land certificate to the tranQferor under section 34 may, if the Master of Titles shall so think lit, consist of bis mi THE PROVINCR OF ONTAIIIO. sul)8istiup;lan(l crrtificiitc (if any) altered to correspond with the rej^istor and cortilied acL'ordinf^ly. (5) No new land certificate Hhall be issued under section 31 to the same owner unless the old certificate is delivered up, except as provided in section 80. (6) A certificate of charge shall be under the seal of the office, and may at the option of the applicant contain either a copy of the entry on the registry of such charge, with a reference to or a copy of the registered description of the land, or the same particulars as a land certificate. (7) The Master of Titles shall, on the application of the registered owner of any land, deliver to him a Special Certi- ficate, which shall be under the seal of the olfice, and shall contain a copy of a reference to the regist(.'red description of the land or the part thereof to which the application relates, and tlie name and address of such registered owner, and a copy of such other matters as may for the time being be entered on the register as affecting such land, including in the case of leasehold land a copy of or reference to the registered lease ; and such certificate shall state, in the case of freehold land, whether the registered ownership is abso- lute, qualified or possessory, and, in the case of leasehold land, whether any declaration, absolute or qualified, as to the title of tlie lessor to grant the lease has been made. (8) Such Certi'icate sliall be conclusive! evidence of the title of such registered owner as appearing by the register. No entry shall be made in the register affecting the land comprised in such Special Certificate, and the estate of such registered owner, except on the delivery up of such certifi- cate, until 14 days have expired from and after the date thereof. A note of such Special Certificat<3 shall be entered in the register, and also (unless the Masi;er of Titles shall otherwise direct) on the Land Certificate or office copy lease (if any). Bule 33, made under Imp. Act 38 & 39 Y. c. 87. \, THE LAND TITLES ACT, 1885. 188 lie(jhU're(l Lease antl Ofiice Copjf thereof. 34. Every leaso oi* copy of sucli lease, or of a counter- part thereof, (l(!posito(l witli the Master of TitlcH under section 15 of the Act whall be retained in the oliice during the continuance of Buch lease. (2) Application for an office copy of a registered lease sliall be made by the ref^iatored owner entitled to have and requirinj^ the same. The office copy shall be marked as an ollit'o copy and authenticated under the seal of the office. (3) In addition to or as part of the parti(!ulars required by section 20 of the Act to bo endorsed on an office copy lease, a copy of or a reference to the registered de- scription and the map (if any) annexed thereto, shall be endorsed on or annexed to such office copy. (4) Wliero a fresh copy is retiuired under section 39 of the Act, in addition to such of the particulars provided by section 20 of the Act, and this rule to he endorsed on an office copy or annexed thereto, as in the Master's opinion may l)e applical)le, there shall be annexed to such fresh office copy and referred to in an endorsement thereon a copy of the map (if any) referred to in the re^istored description of the part transferred, shinving the part so transferred, and an endorsement shall bo made on the office copy of the part retained, showing the part disposed of by reference to its registered description, or otherwise. llule 34, made under Imp. Act 38 iS:, 3!) V. c. 87. y^ew Land Certificate, Ofice C't seq.; Rule 50 & 51, made under Imp. Act 38 & 39 V. c. 87. to be In one I ;■ m'' lliO TIIK I'llOVINCK OF ONTAUIO. Suinmotiar8 nud I'miluction of I'lihlic hocumvntH. 61. Upon imy HurnmoiiH hciij}^ isHued uiuUir Hoction 10!) of tlio Act, tin; iil'lidavit vorilyiu^' tliu servico then-of Himll also prove thai; the ro!iHonal)l(' charf^cs of tlu; attoiidanco of till! person HUiunioned, and of liiH i)roduetion of tin; docu- racntH (if any) re([iiired to \w pro lucod, have heen [)aid or tendered to hini. Kule 52, made under Imp. Act 88 k 8; ntOVINCK «)K ONTAUIO. f ' ' 1 t «««# hhh'.vi-H mill InHju'i'tinti. AO. 'I'licri' Hliall 1m' lii'pt l)y tlio MiiHtur of 'I'itli's imiitxoB ronTHpondin^ iih lU'iirly nn "»iiy '••• to tin- imlfxrH provided for l)y 'I'lii' h'riiistrif Ail ; and any pciHoii nniy inHp«>ct tint hanic. |{. S. ()., c. Ill, HH. !m and Mf). f>l. AH (!t)pi«'M or tvlraclH from any vc^iHtcr or docunnint in the rnntody of lint Master of Titles relating to any land or tdiart^e, shall he made hy a clerk in the olVice. No document not referred to in tlui re^'ister of tlm existini^ ownership shall, without the consent of tho Master of Titles, he inspected hy any person other than tho rej^'istered owner or any one havinj^ his written consent. l\\\\v .57, made mulvr Imp, Act ',\H and !M) V. c. 87. Fnniin. hH. The forms in the schedule liereto sliall ]w used in all matters to whicdi they refer or are capahle of hein«j; applied or ada|)ti'd, witli such alterations and additions only as are necessary to nuu't the circumst'ancos of eaidi case; hut no recital, reservation, covenant, (U'claration or other )>r()visiou not referred to in or re(|uired hy such fornis, shall he inserted therein. ('!) OlVu'ial copies of th(< forms may ho Huppli(>d throui^'h tlu' (^iVu'i', and may, wh(>re practicahle, ho used in all malters to which the forms relate. (8) The Master of Titles may reject any docinnont which is informal, or which ho may consider is not in accordance with this rule. lUilo .58, made under Imp. Act H8 S:. 89 V. c. 87. A})})i'iil. 59. Upon any application to tho Court hoinj:; made on the roqniromont of or ai)peal from the Mabter of Titles, or for the rectification of the register under section 90, a TIIK I, AND TITI.KH ACT. iHHr). l!i:i iiri! it no isioii ;i 1)0 which (lance Ntiitcinnit Hhiill \)v pirpiii'i'd hy the H|)|iliciiiil ami Hrttli il and hj^ikmI liy ilio MhsLit of TitlcH, tin*! I'liiwanlcil to tiii; Court tlimuj^li tin' oilier licforc tin- lirariiij^. ("1) All ii|)|ili(;iitioiiH ti> tli(< Court iiiul ii|i|u'iiIh ftotii tho Master of 'I'itIcK HJiall \tv in tlio Haint> manner and Htihject to the HUJiie ref^idalioHH (\iH nearly as may he) aw ii|i|»eiilH from the Muster in Ordititiry or Master in Chundters midor the .'udieatiini Act and Knles. (!l) No appeal from a deci. 'on or ord( r of the ^faster of 'I'ithm, or of the ('oiu't, shall itili ct any dealin^^ for vahiahle consideration duly registered oefore a noticii in writing? of Huch appeal has hern lodged in the olVice on the part of the appellant, and a note; thereof made, on his application, in thu rej^isler. ( h No a|»pe;il shall he hroii;;ht from a decision or order of the Master of Titles, or of tlie ('ourt, after '2H days from the) dato uf such deciHiun ov urdor, withuut leave uf thu Court. (5) Service of any order, or olVicial copy ordca-, of any Court on tlu! Master oi Titles, shall he made hy leavin^^ the Kami! in the ol1ic( , and an a[)plication shall hu left at the same time for the rectilication of the re^^ister heinj^ made, or any other a«'t hcin}^ done, in accordance witli such order, and the. matter shall hu pro(!e(;ded with aH the Master of Titles shall direct. Bulo 5'.), made under Imp. Act liB i^ !ii) V. c. 87. llntlVa of All, Kildlti'i'. ()0. The ollice of the >rasLer of Titles shall he open from the hour of ten in tin; IVjrenonn until four in tla; afternoon every day in tlie year, Sundays and holidays e\ce[>ted. ,les, or 90, a IE) I'.M TIIK I'IKtVINt'K nr ONTAIllO, THE SCIIICnrLK OF I'ORMS. 1 1 • L' Xt—lonn of Jieijittcr on Jirtt ciitrif of Owninliip. LAND TITr.KH ACT, IHSf). .1. li., of irt tlio owner in (w Hiniplo of (ile»- crijition of propfrtif), Biihjoot to tlm oxccptionH and (jiuilifi- cationH mcntioncil m Hoction !> of 'I'lif fMnd Titlfti Act, i, and niunliori'il thoroin {an flu; ciihi; iiKiif he, if tin' title ia free, from soiiw of them). In witnoHH whorcof I have hcrcMuito suljHcribud my name and atVixod my Hcal tliis day of , A.l)., 18 . (Rif^ned) Where title in I'dHHeHHori/, nat/ : The titl(.' of .1 . n. in suhjcrt to the claims (if any) which can 1)0 enforced to the Haid land by reason of any defect in the title of {name of the jimt reijiittered owner), Wlien the land in anhjeet to a life entitle, n Hiiid Iiiiid being iniuto witbout my conHunt, and the nature uf Hiieli my int(>rust in m foUowH : [here atdtc jxtrticuldrH of rautit>ni;r'H itttrtrnt,\ The 8('b(ulul(^ abovii rc^t'erred to. | llrrr ingrrt ordiunry (liHcription of In ml to he ojfectetl hij the Caittioii.] 18. — Noliee to (\iutioner {iimler SeetioiiH G/j tnd (IS. IiANI> TITI.KH ACT, 18H/). NoTic'K. — C. 1)., of, (;tp., has apphed to bo rof^iHtered {or to havo reglHterod in his stead K. /''., of etc.) an owner of tho land in tho of , in tlie County of York, alTected by tho Caution dated tho , 18 , lodged by you in tho ofliec! of tho ^Faster of TitloH in Toronto ; and if you intend to api)oar and oppose such registration you aro to enter an appearance for tliat pur- pose at tho said olKicc before tho expiration of 11 days from tho date of tho service of this notice. Dated this day of 18 . Siiinntitre of the^Master of Titles and of the (ipjdieant or his 8(dieitor. To > ! 19. — Caution {under Section oS) after lieijistration. LAND TITLKB ACT, 1885. I, A. B., of, etc., being interested in tho land registered in tho name of under the number in the or in the charge registered tho day of 18 , in the name of E. F., of, etc., on the lands, etc., {as the ease may'Jje), require that no dealing with such land {or charge) be bad on the part of the registered owner until notice has been served upon me. i. i< M'i I 200 tin: PllOVINCK OF ONTAIIIO. My iiddrcHs for Hcrvicc! of notice i'h lot , in tlic roiic('H>ji(i!i, in the County of York, mid my Post OlVice iiddrt'HH iH ])utc'il thiH day of , IR . Siiinatiire of the cdiiliom'r or liin solicitor. 20. — AlliiLirit in support of Caution lodacil under Section 6iS. LANn TITLUH ACT, 1885. 1, ^l. li., of, etc., nialcc oath and say, as followH : — 1. Tho hmd (/>/• charge), to which thu Caution dated the day of , IH , lodf^od hy mo at thu oiVico of the Master of Titles in tho City of Toronto applies, is the land {or charge registered the day of 18 , in the name of on tho land) registered in the name of under tho No. in the said otitice. 2. 1 am interested in such land (or charge), and the particulars of my inti'rest are as follows [here state ^>f/r- ticulars] . 21. — Notice to Cautioner {under Sections 58 and 50). LAND TITLES ACT, 1885. Notice. — Tlie caution lodged by you ;n the oftico of the Master of Titles on the day of 18 , re(juir- ing that no dealing with the land {or charge registered the day of 18 , in tho name of on the land) registered in the name of under the number should be had on the part of the regis- tered owner until notice had been served upon you, will cease io have any effect after the expiration of 14 days next ensuing the date at which this notice is served, and TIIK r.ANO TMI.KH ACT, IHH/). •207 • i( that iifti't' tlid (t\i)initi(>n of Hii(;h tiiiu> as arorcsuid the caulion will coani* unlfHH tin ordur to the cuiitriiry is tiiiulo hy tho Masti'i- of Titles. Dattd tho dixy of 18 . (Sifin. {or of E. F,, the solicitor of tho said C. IK) liled herewith. Dated, etc. (SiiiiKiture of C. IK or li'is solicitor). Affidavit to bo filed stating particulars of applicant's title. 23. — Apidicaiioii to lieijiatcr licstriction. LANn TITLKS ACT, 1885. -^1. /?., the registered owner of the land No. on the- register under the Land Titles Act, 188;"), requests the Master to make an entry in tho register that no transfer shall bo made of, or charges created on, such land, unless [here insert the terms of the restriction required to he entered.] Dated the day of 18 . {Sifiudture of owner.) 20H TiiK moviNCK or ontauio. *2\,—Applirtitiitn in W'illnlriiir nr Mmlihf lii'$tririii»n. i.\Ni> thi.kh A., ol', iiti*., luitl A'. /«'., of, vU\, i'i>(|iU'Ht tliiit, tli»< rt!Htri('tii)ij on triiiiHfcniiiK or cIiiu'^miii^ tli(« Itiiid No. on tlio n'Kirttor, a not»' wiuri'of wiim tniidf on tint rr^iHtfr on tlm day of IH , may bu witlidiawn, [<»»• inodilii'tl in the followinj^niannur, Acr*- <^^^^' ///c imdirr d/ tli,< ini'iliiiiiilitiii niiiiiri'il\ . Dati'd till! day of IR . "(SiiiniifiircH it/ A. II., ('. l>., II. l-'.,(lc.) WilnoHH to all tlu! Hij^naturcH, A. J ., * Th(! npplicantii mii»t bo nil tho pernonH inturentcil in Ihu rentriclion. 25. — Clninff or Morfi/iiiir. LANU TITLKS ACT, iHHr). 1, .1. /?.. the i('f»iHti red ownor of tho land cntorod nndor tlu! Land Titles Art, IHH!}, in tho rt; winter nndrr the aliovo nnniUi-r, in considd-alion of {S:J,(H)0) paid to nw, cliai'j^'c wuch land with the itaynicnt to C. /'., of, etc., on thu day of IH , of tlu- principal wuni of (S'-,',""") with intorest at tho rato of !? [wr cent, por anninn, and with a power of sale to bo exorcised after default, and months' suhse(|uent notice of the intention to sell, (or, an the ('(lae vuti/ hi-). [.Idd iltiy of IH , 1111*1 rt'^iHli'iiMl oti tliP iluy of IH , oti lint liiiid rt'f^tHltriMl III the iitttno of .1. /'., iiiiilrr Ww iihovo immhi'i', in coiiMidcnitiuii of (S.\(H>0) \\\\'u\ to iiir, IniiiMfir MUcIl cllilf't' to /•-'. /•'., of, rtc, llH OWIIIT. Diiti'd Ihu (luy of |H . [Siiiuature vj' mjinU'rvd owHtr). VViilU'HH, .V. r. < ! /(I ((/(l' '17.- -.ll>l>lirtilliiii tn iinlll'ii (\)iniitiini of Clninir, nwh'r St it ion •/•/, hif Ihr llvijinttrid (itturr thrfoj'. LAND TITI,I,H ACT, IHH.T. ,1. //., of, etc., tlio rc^^MHtfrrd owner of tin; c•llar^^(' rr^^iH- Icrt'd under tlu! liund TitleH Act, iHHri, tlio diiy of IH , in hJH munc on the land No. rc^lH- tercil in the niinu' of hereby re(|ne. ts the ^^JlHter of Titles to notify on the register tho '.;(!HHiition of the Hiiid char ^(5. Dated the (lay of IH . {SiiiiKiturc of A. li.) WitneHrt, A'. }'. Note. The ai'pliiaiinii will vary .•uci'i.lini} to circumstances. •//<■»•). ,\lc given, of sale," 28. — 2Vitnnfrr of FnufoiUl or Lvasvhold Land. LAND TITLES ACT, 1885. I, .1. /?., the registered owner of the land, or leasehold, entered in the register under tho Land Titles Act, 1885, 14 l|- TIFT 210 THE rnOVINCE OF ONTARIO. under the above number, in couHidcration of {9'i,00f)) paid to me, trannfor Huch laud to C. />., of, etc. Diited the day of 18 . {Siiinoturc of registered owner.) Witn(!Hs, X. Y. 29. — 'Vrduufcr of Freehold or Lenaehold Land in Parcels. LAND TITLKS ACT, 1885. I, A. Ji., the registered owner of the freehold {or lease- hold) laud en' (red in the re^^ister under No. , and registered wiUi ■■m Absolute title [or with a Qualified title, or with a Possessory title, or, in the case of a leasehold, with a declaration that the lessor had an Absolute or Qualified title to grant the lease, or, without the declaration of the title of the lessor, an the rase niatj he] in consideration of {1^1 />00) paid to me, transfer to C. D., of, etc., the land {or lease) hereinafter particularly described, or so much thereof, being part of the land now registered under No. etc. {Sifjnatnre of retjistered owner.) 30. — Form of Transfer hij Endorsement. LAND TITLES ACT, 188/5. I, the within named A. /?., in consideration of $ paid to me by (7. /)., transfer to C. I), the within mentioned land. Dated, etc., [Sirinature.) {No Seal necessary.) Witness (as above). THK liAND TITLES ACT, 1885. •211 81. — Form of Tninsfcr of Char(jc or Morfpatje. LAND TITLKH ACT, 1885. I, tho witliin named A. li., in conHidonition of $ paid to mo, do tiiinsfur to C. D. the witliin mentioned mortf:;ago. Dated, etc. {Siijiuttnre.) {No Seal necessary.) Witness {as above.) ••) )ned 32. — Form of Transfer of Land under Writ of Fieri Facias. LAND TITLK8 ACT, 1885. 1, , SherilT of , in pursuance of a writ oi fieri facias, tested the day of , and issued out of {insert name of Court) in nn action wherein is the plaintilf, and the defen(hint, which said defendant is registered under the Land Titles Act, as the owner of the land nereinafter described, subject to the exceptions, qualifications, niort- gagcN, and encumbrances {or as the ease may be), notified hereunder, do hereby, in consideration of the sum of paid to me, as Sheriff aforesaid, by E. F. {insert addition), transfer to the said E. F. all that piece of land {here insert a HulJieient description of the land, and refer to the registered number of the property.) Dated the day of , {Signature of Shcnf.) {No Seal necessary.) Exceptions, qualifications, mortgages and encumbrances referred to. {State them.) 212 THK PROVINCE OP ONTARIO. if'll-;^' ri? i* -^ 83. — AppliMtionfor Entry to he imuU in Ri'., of, etc., the tranHforce named in the inatrnniont of trannfcr dated the day , 18 , and lodged herewith, requcnt tin; Master of Titles to make an entry in the register to the effect following ; that is to say [here state the implied Covenants to he negatived] . Dated the day of 18 . {Signatures of transferor and tranfcree.) Witness to both signatures, X. Y. 34. — Transmission of Registered Ownership on death of Owner, Application under Section 47 or 49. LAND TITLES ACT, 1885. A. B., the registered owner of the land, {or charge, dated the day of 18 , on the land, etc., as the case may he), No. on the register, died on the day of 18 , {or otherwise, as the case may he, within sectio7is 47 or 4^ of the Act), C. D., of, etc., is entitled to the said land {or charge), and applies to be registered as the owner thereof accordingly. The evidence in support of the above application consists of [liere state the evidence to he lodged herewith] . Dated the day of 18 . Signature of C. D. or his solicitor. :i: THE LAND TIT^KS ACT, 1885. 213 85. — Transmuaion of lieifistercd Ownaraldp. Application under Section 46. A. li., the rcgiHtercd owner of tho land No. on the regJHtcr, died on the day of , 18 , (or othenviae, aa the caae mmj he), C. D., of, etc., being inter- ested in tlie said land, applies to bo registered {or to have E. F., of, etc., registered), as owner of tho said land. Tho interest of the said C. D., (or A'. /'.,) and the existing rights of tlie several other persons interested in tiio said land, are stated in the ailidavit * of the said C. D. and G. II., of, etc., the solicitor of the said C. I)., filed lierewith, and tho other evidence in support of this appli- cation is left herewith. Dated the day of 18 . {Signature of C. B. or his solicitor). • Affidavit, etc., to be left with application. Ml 36. — Application under Section 67 aa to Dower or Gurteay. LAND TITLES ACT, 1886. C. D., of, etc., being entitled to an estate in dower (or by the curtesy) in the land numbered on the register, and of which land A. B. is the registered owner, applies that notice of such estate may be entered on the register. 'Ihe existing rights of the several persons interested in the said land are stated in the affidavit* of CD. and G. II., of, etc., the solicitor of the said C. D., filed herewith, and the other evidence in support of this application is left herewith. Dated this day of 18 . (Signature of C. D. or hia solicitor.) * Affidavit, etc., to be left with application. 214 THE PROVINCE OF ONTARIO. I t> 37. — Application to notify Cessation of Incumbrance or Lease entered on the Reijistcr on first Registration. LAND TITLES ACT, 1885. A. B., the registered owner of the land No. on the register, hereby requests the Master to notify on the register the cessation of the incumbrance (describing it) (or the determination of the lease, describing it,) entered upon the register, the same being discharged {or determined), as appears by the abstract of title marked A. {or as appears from the receipt endorsed upon the instrument of incum- brance, or otherwise, as the case may be), and the affidavit of lodged herewith. Dated the day of 18 . {Signature of A. B. or his solicitor.) 38. — Application for Registration of Notice of Lease, or Agreement for Lease under Sections 55 and 56. LAND TITLES ACT, 1885. G. D., of, etc., being interested in the land No. on the register, of which A. B. ia the registered owner, by reason of a lease [or agreement for a lease] , the particulars of which are stated in the schedule hereto, hereby requires the Master of Titles to enter a notice of the said lease [or agreement] upon the register* [in accordance with the order lodged herewith], in the terms following, that is to say • If the registered owner of the land concurs in this application, these words in brackets will be omitted; if otherwise, the words following, referring to the terms of the notice, and the last paragraph, must be omitted, and the order left iu the office with the application. THE LANO TITLES ACT, 1885. 215 [here state the tcrniH of notice aiyreed upon, and which 7nu8t be a coneiae notice merely] . A. ]i., the refiistcred owner of the ahove land, concurs in this application. Dated this day of 18 . Witness to the signature of C. D.) '^^ SiiinattiresofC.D. and A.Ii. Witness to the signature of A . B. ] X. Y. THE 8CIIKDULE. [Here insert shortli/ particulara of the Loan or A(irceme7it.] or 89. — ApjAication to annex Conditions to liajistercd Land. LAND TITLES ACT, 1885. A. B., the registered owner of the land No. on the register, and part of which is about to be transferred to C. D., of, etc., pursuant to the instrument of transfer left herewith, hereby requests the Master of Titles to register, as annexed to the part of the land to be so transferred, the conditions, a copy of which is left herewith. The said C. D. consents to this application. Dated this day of 18 . {Signatures of A. B. and C. D.) Witness, X. Y. 40. — Applicatiori to annex Conditions to Land ahoiit to be lietjistered. LAND TITLES ACT, 1885. A. B., of, etc., being about by himself or nominee to be registered as owner of the land called or known as in the of in the county of York, comprised in the application of the said A . B. for registration dated i 41.- 1216 THE PROVtNCK OF ONTARIO. the day of 18 , rcquostH tho Master of TitlcH to rcf^istcr us anncxud to tlio Haid land the conditions, a printed copy of which is left herewith. Dated this day of 18 . Witness. X. y, {Sipnature of A. 13.) -Application for Land Cartijinitc (or Certificate of Charge or ofjia' copjj lease.) LAND TITLES ACT, 1885. X /?., the registered owner of a charge dated the 'I ;^ ' . 18 , and registered the day of 18 , on the freehold (or leasehold) land No. on the ''f^gisl^' , hereby requests the Master to deliver to him a Land Ccrtiti'Tito {or Certificate of Charge, or an office copy of the Registered Lease, (as the caac may he). * A. B. desires that the certificate of charge shall contain the same particulars as a land certificate {or otherwise, according to rule 37). Dated the day of 18 . {Signature of A. B. or his solicitor.) * To be added if application be for Certificate of Charge. 42. — Affidavit attesting Execution of Instrument and identi- fying Owner. LAND TITLES ACT, 1885. I, G. II., of, etc., a solicitor of the Supreme Court of Judicature, do make oath and say that I am well acquainted with A. B., the person named in the within document dated the day of 18 , that I saw him sign the said document ; that the name A. B., at the foot THE LAND TITLEfl ACT, 1885. 217 thcroof, is tho handwritin}» of the wiid -I. li., and that the said A. B.'w tho samo porHon an A. li. who is named in the regibter as tho owner of (tho charge dated the day of , 18 , and registered the day of ,) the land entered on the register under the nuiuher , and that the said A. li. is of full age and under no legal disability. ^"iH _ ▼T"-1 1 i 43. — Form of a Inference to the Court. In the Hvjh Court of Ontario. LAND TITLES ACT, 1885. {Date.) In the matter of the registration of transfer {or as the case may be) A. B. to C. D. The Master of Titles under section of the Land Titles Act, 1885, hereby humbly refers the following matter to the Court, to wit : {Here state hriejUj the difficulty ichich has arisen.) The parties interested, so far as the Master of Titles knows or has been informed, are: {Here (jive the names.) {Sii/nature of Master of Titles.) L. S. 44. — Form of Power of Attorney to make Transfers. LAND TITLES ACT, 1885. I, A. B., do appoint C. D. my attorney to transfer to E. F. absolutely (or by way of mortgage, as the case may IHHt f II If' 1' ■ '1 218 THE PKOVINCE OF ONTABIO. he), all my lands as entered and doBcribcd in the register of estates under No. 129, and my estate therein. A.B. Witness (aa ^ was despatched to Wiimipeg in .Tune, 188JJ, for the purpose of laying the claims of the " Torrens System" before the authorities. To show the condition of knowledge with regard to the system, on his arrival, it may be men- tioned, that the people and the Bar of Manitoba knew little of the benefits of the proposed reform. But if the people of Manitoba, if the Legislature of Manitoba, if the Government of Manitoba knew nothing about the system at that time, it required but littl'^ time for them to learn ; and so quickly and with such acuUness have they made themselves acquainted, that the present Act is better adapted to the wants of the country, and more drastic than the " Land Titles Act of Ontario," which is founded on the Imperial Act. WW m 1! 222 iN'rnoniTTtoN. It wjiH in June, IHHU, tliiit Mr. Jones went to WiiuiijM'j^. Ho wiiH roccivi'd uitli tiiitch kiiuliicHH. Hit whh liHtciicd to with f^rctit uttciitioii. Tho (Inii't of th(> Act, introduced to thu IIoUHi! of CoinnioiiH l>y Pulton McCiutliy, M.P., (i.e., iiincnded to Hiiit the cxi^uncios of Miinitolm, whh Hiil)iuitte(l, and the Hon. John Nunjiiay and tlie wh'>lo (ioverninent took iin activi) intorcHt in itH promotion. Two piihMc ineetiiiKH wiTc h(dd on tho suhjeot, and a hranoh of tho t'anaihi Land Ijaw Ainen(hnont AaHoeialion waH forniod, under tho |»roHi(U'iu'y of C. J. lirid^^'oH, Mhij. Mr. F. IJ. lloHH was appointtid Heorcftary of that AHH(»ciation. Ur. Killani (now Mr. JuHtic(! Kilhini) and Mr. John Kwart woro tho only two pioininofit nuMuhers of tho iJar who evincod much intorcHt or sympathy in tho movement. SuhHotpiently, tho ^tanitoha AHsooiation proHsed the matter at each Hossion of tho Ijef^ishiturc. Thoy received vahiahlo assistanco from tho Hon. .Jaa. Millor, formerly Jud^e of tho Superior Court. Last Hosaion, tho mcaHuro wan nnvdo a (jovornmi'ut meanuro, and paHHod tho Houho uiuh-r t Bupervision of the Attorntiy-Clenoral, Hon, C. E. Humil Tho moaHurc as oarried in Manit()l)a not merely altered tho law as to the trauHt'or of land, hut asHiiuulated tho law of real and personal property on tho linos of the Newfoundland Act, which, after fifty years, had received tho highest commendation of tho late Chief Justice Sir Hugh HoyloB. Thus, hy one stroke, was tho last vestige of tho Feudal System swept away from tho virgin soil of our western prairies, and a cheap, easy and expeditious method of land transfer introduced. There are, of course, some ditli- culties which did not present themselves when the measure was passing through tho House, hut these can readily be amended. The lato Attorney-General Miller, having been appointed Registrar-General, will be able, at the next session, to have a bill ready embodying such alterations as experience of the working of the Act has suggested. Nothing could show the advisability of Home Rule in a iNTTinnirTioN. 2'2!1 Htronj^i'i' liK'lit timn tint way in \vfii<'li tho TurrouH Act haH hcun (itiiilt with by tlio Piiiliiitiioiit of Nraiiitoba iitul till' ParliaiiKiit of Canatitle(l to have. It must, however, ho rem inhered that the time of the House of CommoiiH was fully oceupiiid. What with the Kranehiso JJill and tln! Canadian hicifh! Uailway matters, tho 8»!Hsion wan ono of unduo length, whilo the eomhatH, the vit!tories and dijfeats will ever be retnemhered. It is to ho hoped that no Htumhlin,t,'-l)loeks will ni^am be thrown in tht; way of the passage of the Hill, hut that tho " Torrens System," tested by tl.<> evperit nco of Australia, and introduced into British Columbia, Ontario and Manitoba, will yot (ind an abiding ri'sting place in the North-West Territories of the Dominion of Canada. The first otHiccrs appointed under the Act arc the lion. .Tamos Andrew Mill(;r, Hegistrar-doneral ; Felix Chcvior, Msfj., Examiner of Titles ; Hamilton A. Jukes, Draughts- man ; Edward 11. Coleman, Es(|., Accountant. Uions isted. m The Real Property Act of i88^ oy THE PROVINCE OF MANITOBA. AssKNTEU TO 2ni> May, 1885. CHAPTER XXVIII. An Act respecting Real Property in the Province of Manitoba. IteciUd. Whereas, it is expedient to give certainty to the title to estates in land in the Province of Manitoba, and to facilitate the proof thereof, and also to render dealings with land more simple and less expensive ; Therefore Iler Majesty, by and with the advice and consent of the Legislative Assembly of Manitoba, declares and enacts as follow : — TART I. SHOUT TITLE. Short Title. 1. This Act may be cited as " The Ileal Property Act of 1885." 15 a h 226 THE PROVINCK OF ^tANlTOBA. COMMP.NCKMKNT. C'omvioicriiicnt of Act. a. This Act Hlifill comnionci' and tako effect from and after the first day of July, A.l). 1HH5. INTERPUETATION. Interpretation. 8. in this Act, and in all inHtruments purporting to he made or executed thereunder, unlens the context otherwise requires : — Land. (1) The expression " Land " shall extend to and include land, messuages, tenements and hereditaments, corporeal and incorporeal, of every kind and description, whatever may he the estate or interest therein, together with all paths, passages, ways, water-courses, liherties, privileges, easements, mines, minerals and quarries appertaining thereto, and all trees and timher, thereon and thereunder lying or heing, unless any such are specially excepted ; Owner. (2.) The expression " Owner " shall extend to mean and include any person or body corporate entitled to any free- hold or other estate or interest in land, at law or in equity, in possession, in futurity or expectancy ; Transfer. (3.) The expression " Transfer " shall mean and include the passing of any estate or interest in land under this Act whether for valuable consideration or otherwise ; Mortr/age. (4.) The expression " Mortgage " shall mean and include any charge on land created merely for securing a debt or loan; TIIK REAL rnOPKUTY ACT OF 1885. 227 rce- ity, Act llude )t or M(>rliiit;ii(:. (5.) The expression " ^[orti^ii^'eo " shall mean and include the owner of a raortKaRo, or the lender of money upon the security of any estate or interest in land ; Mortfittfinr. (G.) The expression " Moi-t;j;agor " shall mean and include the owner of land or of any estate or interest in land pledged as security for a debt ; KiiciDithrancc. (7.) The expression " Encumbrance " shall mean and include any charge on land created for any purpose what- ever, inclusive of mortgage, unless expressly distinguished ; Encumbrancer. (8.) The expression " Encumbrancer " shall moan and include the owner of any land or of any estate or interest in land subject to any encumbrance ; Encumhrancee. (0.) The expression " Encumbrahcee " shall mean and include the owner of an encumbrance ; jAinntk'. (10.) The expression " Lunatic " shall mean and include any person found by any competent tribunal or commission, dc hinatico inqiiircndo, to be a lunatic ; Person of unsoinul }iiind. (11.) The expression "Person of unsound mind" shall mean and include any person not an infant, who, not having been found to be a lunatic, has been found on like enquiry, to be incapable, from infirmity of mind, of managing his own affairs ; M M fjf"7 r; (I. [': : I ill 229 THE PROVINCE OF MANITOBA. Instriniicnt. (12.) The expression " Instrumont " shall mean and include any grant, certilicato of title, conveyance, assurance, deed, map, plan, will, probate or exemplication of will, or any other document in writing relating to the transfer or other dealing with land or evidencing title thereto ; Register. (13.) The expression " Register " shall mean and include the register of titles to land to ho kept in accordance with this Act ; Regintrar. (14.) The expression " Registrar" shall mean and include any person appointed under this Act as registrar of titles ; Sworn Valuator. (16.) " Sworn Valuator." — Any person appointed by the Lieutenant-Governor-in-Council to value land under this Act; Court. (16.) " Court." — Any superior court established in the Province of Manitoba ; Judge. (17.) " Judge." — Any judge of any superior court estab- lished in the Province of Manitoba; Tra7ismis8ion. (18.) The expression " Transmission " shall apply to change of ownership consequent upon lunacy, levy under execution, order of court or other act of law, or in virtue of any settlement, devise, or any legal succession in case of intestacy ; 8k THE IlEAIi rUOrERTY ACT OF 1885. 22!) Grant. (ID.) The exproBsion "Grant" shall mean and incliulo any grant of Crown land, wiiether in fee or for years, and whether direct from Her Majesty or pursuant to the provi- sions of any statute ; Indorsed. (20.) The expression " Indorsed " shall mean and include anything written upon any instrument or other document or in the margin thereof, or at the foot thereof ; PosscsHion. (21.) The expression " Possession," when applied to persons claiming title to land, signilies also alternatively the reception of the rents and. profits thereof; Effect of describing a person. (22.) The describing any person as proprietor, trans- ferror, transferree, mortgagor, mortgagee, encumbrancer, encumbrancee, lessor or lessee, or as trustee, or as seized of or having any estate, or interest in any land, shall Ije deemed to include the heirs, executors, administrators and assigns of such persons ; Meanini/ and effect of icords. (23.) And generally unless the contrary shall appear from the context every word importing the singular number only shall extend to several persons or things, and every word importing the plural number shall apply to one person or thing, and every word importing the masculine gender only shall extend to a female, and shall include a body corporate, and whenever a form in the schedule hereto is directed to be used, such direction shall apply equally to any form to the like effect signed by the Eegistrar-General, or which for 230 Tin: I'UoviNci; of .mamtoha. ! If ! i the s;uuo purposo may Ito autlioi-i/i'il uinlcr tliu inovisions f)[ this Act, and any variation from sudi t'onnH, not bcin^ja variation in ma!ti*r or Hiibntanc ■, shall not atVi'ct their vaHdity or ri'^^iilarity, l)nt they may 1) ' nsrd with smdi alterations a3 the (diaraoter of th.! [)ii'tius or the circuiu- atancod of tho caso niiy ren lor nucjssiry. PART II. LAND TITLKS OFFrOE-^UlKlISTUAU-dKNKUAt,, AN'P I'OWICUS ANI> DiriKS OF UF,(HSTUAU-intri(>iiit(Hl to act in tlio Province of Manitoba, or who hIuiU here uftcr 1)0 appointed nnder tlio Acts now in forci;, hIuiII he under the direction of the llef^is- trar-General of the Province. Dcjnily 111)11/ he apixnntcd. 12, In case of ilhiess or absence the Licutenant-riovor- nor-in-Council may appoint a person to act as the deputy of any ollicer ap[)ointcd by or under tiiis Act durin;,' such illness or absence, and such deputy, while so acting, shall have all the powers of the otHicer for whom ho may bo actinc. Oath of Ofice. \i\. Every Ro<];istrar-General, Deputy l^epiistrar-General or District lief:,dstrar, before he enters upon the execution of his office, shall take the oath of ol'lice, and give security to the satisfaction of the Lieutenant-Governor-in-Council under the Act of this Legislature passed in the 4Gth and 47th years of Her Majesty's reign, chapter 7, and be subject to said Act. Seal of Office. 14. The Registrar-General shall have a seal of ollico approved by the Lieutenant-Govcrnor-in-Council, with which he shall seal all certilicates of title and stamp all instruments which have been presented to him for the purpose of authorizing an act of registration. Exemplifications and copies of documents — To be evide7ice. 15. The Registrar-General shall, when required, and upon the payment of the legal fees, furnish, attested by the seal of his office, exemplitications, copies and abstracts THK RKAL I'llOI'IcniY ACT OP 1885. 233 of any uncanoclled instnirncnt iilVcctiii^ luml, which may be deposited, lilud, kept or rt'i^istcri'd in liis ofVicc, and Huch exeniplilu'iition or ccrtilird copy Hliall hv. rooeivcd as evi- dence in ovory Court of Law or iv;uity in this rrovince in the sanio maimer and with the same efToct as if the orif^inal in his otVico was pro(hicud. lie'jistr((r-(/:iiri'(ll in drlin'r hnohi:, ctr., nn rstdhHshliKlit of ncir (lintriitH. 10. Wiienever any new Division and " Tiund Titk^s Ollicc" is o;stal)hHlu;d, the Uo^'istrar-Cleneral of tlie (livision from whieh sncli now registration (Hvision is (htached, shall deliver to the; Hejjjistrar of such new division the registry hook or hooks and all other hooks and indexes of names, and of lots and parts of lots and all instruments and documents which have heen kei)t accord inj:; to this Act for any lands situate within the limits of the new division ; and the liogistrar receiving such hooks and his snccesaors shall keep the same among the llegistry JJooka of his oflice, and deal with them in all respects in like maimer as those originally sunplii'd to and ke[)t therein. This section providiis the procednro in casi; of the estnhljshmpnt of new divisions and " Land Titi(;s oflices," other than at WinnipoR. liy s(!i.:tion seven the Kesistrar-General "may hold the office of District Rejjisirar in conjunction with tht- olFice of Kej^istrai-Oencral so long as and until, in tiie opinion of the Lieuli;nant-(iovi:rnor, tilt; amount of business in the Land Titles office renders it expedient that such offices shall be held by one and the same person." Ivvitm'nirrtf <>f iitlcn. 17. The Lieutenant-(jovernor-in-Council may appoint tit and proper persons to he examiners of titles under this Act, to exercise their othcc at such places as the Lieuten- ant-Governor-in-Council mav direct. i| St it) ! V-i 2:u ■nii; I'lioviNci: or manitoiia. Ily flection I J i>f the Victoria Act no "cxntniner of titlm may, *i'ii so iir.ictiMinK." This provi'iinii is nut in the .Manitoba Act. It is probabli! ih.it tho arnoinit i>l' i>u)tuii!SH at prohunt is ti't Hntli- cient t:» warrant any lawyer giving up his entire practice to beromo Kxaniinur of Titles. I{(';iistr(ir-< iiHi'i'iil, rtc., not to r cliiitti'is n al, and sliall ;,^o to tlio cxcfutor or administrator of any pi'rson or persons dyinj;, sidzod or [)oasosHod theroof, as other personal estate now passos to the personal representatives. I'art 111. is p'-iiiaps the most iin[njrtaiit c1mii>;i! ili.ii lias been eflected 111 tlio law with regard to the transfer uf roal estate. It IS foiiiiiloil for thi! ino.st part lH hii>l httxii hitlil 10 Im' in ftiM-c, :i will of the l.intl liA'l imt l)««rr»» in Niuvfuuiiillm I piior to ilin N- al ' h.ilt«lH Ait, anl of thin opinion linve Im'i'h tliH iii.t|oniy ol «ii« piof^ s->ioti, nt lo.mt of i.ili' vfarn, ani «'vt;n C> }. KorhcH hrld the StatutcH of l.iniitationN to Im a liar IkjiIi |m tii>' Crown'N an.) "Tori'iniily tliis •,tattpoiinKof lan>l for a Lir^fr term than one yt'ar without tln" coiisfnl of th«) Siiiircinti f!oiirt, but aft'i! h )dy of real property law, and bv tlui siib-titu- lion of a siiif-Ie and Minple tenure for the coiniikx litUs bv which land is held in the mother country, it lessene<1 litinatiou and rendeie 1 sim|)le an I easy the jMoof uf title and the construction of deeds and wills. The transfer of land intiy virus is effected by any writinj" suflicient under the Statute of I'rauds, accompanied by rej-istratiou as against subseipieiu purchasers and incumbrancers. Its di-volution at death is rej,'ulated in cases of intestacy by 'he St.itutes of Pistributions, .'nfl where there is a will, by the provisions of our local Wills Act, which are the same for a devise "f land as for a bcjuest of money. "The Statutes of lIs«^^ have, of course, no appbcatioii here, but tn.sts c f land are created, moubled, and dealt with as trustsof terms are in Knt;lan:l( " ApprflliimiiiDn* v. ■ rr ii itr*! rnnutairtml lr»i ihi* uiilitniicft |K>\vi>r ovtr lan>l<«, Kivun by acU of iwrnoniil raprninnlntivffii, nhoiilil Im nltivnlml by niiiu hii'MiiUH I oiiK' |tit)it('iiH , lull i'X|><'ii<>nt Kroiiiolli'Ht, lliuMciirity ki^<'>> l>y ailiiiiniiir.iturit anil llii)r<''Mi fotiiul tu Ui Niillkiii nxiiiitur iloat with tho land nn with n chattel, iho lattxr 'when (ho claim* of cnvlitor* ilo not inlervcna) havinit of couma rcKanl id tut! ili-'p'titionn of liiit ti-ttntnrH, and the liti»;aiiiin h )<. | think tlimiiiitheil. rather than imrcavid, by ruation o( thuii bun^ clulheil vMth thiH |M)Mer. ' 1 am iir>t awariMif any inconvonJciK o having Imf-n ffit liv the al>:)!iiii)ti ot the power of croatinx entaiU It han IxMrn prudnctivit of Kood rather than rvil aN apart frotii iiihi'r important loniiiderationn it ih-fiatN tin; di-«ire to 4'xerciHe the IcnKthened posthiiinniH innnenco over the dinpoMiion of property to whiih many lentatorn arc prone. "Tho princ ijiloof the Act m, I think, |)erfectly undiTntood by the public, and is re»;arded with Keneral xatiNfnciion n>> anHweriiiK the demands of j lint ice by placing; all tlie children in tasen of intestacy, ii|ion the same fuotinK and f.u ilitatiiift the recovery of debts " In tine after an intimate ami practical acipiaintance with the operation of this Act for forty years, I cm h<-artily rejcommeml it as a marked nforin in the laws of landed property. " In Canada circiimstanceH may exist of which I am iKnorant which may render its mtrodiiction thtMo impra( ticable or inixjM'iJK'ni, but of New- foiindlaiKl, It is not too iiuich to siy that I know of no Act i:nnstruction of the Mortmain .Nets (q (leo. II. cap. 36, and 45 Cleo. III. cap. loi) that not only devises of land (a), copyhold as well as freehold and bequtsts of money to be invested in land are void, but also such becjuests as in any manner affect or relate to interests in real property. Thiis, beipiests to chanties of money charged on real estate («), or of money to arise from the sale of real estate [v), bequests of terms for years {h), or of monev due on a mort- gage ((/), or of a judnment due to a testator, which in his ituime has been reported in a creditor's suit, to be an incuinbrance affecti::,; the real estate of the debtor (»), are within the Statute and void. As terms of years .are held to be within the Statute of Mortmain, it would no doubt be held that the present alterations in the law did not affect the Mortmain Act so as to prevent their applying to lands held as chattels real. 1.0. Litt. estate, executor Vi-s : for Iritance. rmR the lore the Inot the Is real." 1:1 not to \fnit or during |id go to ites for /'JjJ'i'i-t of convcijnncc ; irords of limitation tint requircil. 22. Hereafter no words of limitation sliall be necessary' in any conveyance of any land in order to convey all or any title therein, but every ilecd or instrument conveying land shall operate as an absolute conveyance of all such rifj;ht iind title as the fjrantor has tiierein at the time of its execution, unless a contrary intention bo expresst.'d in such conveyance; but nothinp; herein contained shall preclude any conveyance from operating by way of estoppil ; and hereafter the introduction of any words of limitation into () Attorney-General v. Graves, Ambl. 155 ; Atturney-Giitenil v. Tumkins, .\nibl. 2i(); Johnstvii v. vSTiviw, 3 Madd. .{57. ((/) Attorney-General v. Meyriek. 2 Ves. Sen. 44; Attorney-General v. Cii/(/j('(7/. Ambl. 635; White v. Evans, 4 Ves. 21; Johnston v. i'^d", 3 Madd. 457. [u] Cvllinson v. Pater, 2 Russ. and M. 344. ]i (i ] n 't>i '>}. 210 TIIK rUOVINCE OF MANITOIJA. any convoyanco or devise of an}' land, shall have the like force and meaning, as the same words of limitation would have if used hy way of limitation of any personal estate, and no other. This is .1 very important provision, as it does away with those numerous questions that have arisen with regard to ivortis of limiti.liou. If th owner wishes to convey only a life interest, it is provided for by the won!?. " unless .1 contrary intention be expressed in such conveyance " This section applies to every deed or instrument hereafter, no matte: whether the land is under the operation of this Act or not. Devisees to Utkefrom personal representative. mi. No devise shall be valid or eflfectual as against the personal representative of the testator, until the land affected thereby is conveyed to the devisee thereof, by the personal representative of the devisor, saving and excepting such devises as are made by the testator to his personal representative, either in his representative capacity or for his own use. It will be necessary for the personal representative to obtain probate of the will or letters of administration before his acts will be recognized. Practically it will doubtless be found that the personal representative will adnnnister goods afld lands together. In case of intertacy, letters of administration would issue, and the administrator would be in the same position as an executor under a will, the land belonging to the next of km being distributed according to the Statute of Distributions, 22 & 23 Car. II. cap. 10. A holition of dower. 34. No widow, whose husband dies on or after the day of the commencement of this Act, shall be entitled to dower in the real property of her deceased husband, but shall havi; the same right in such real property as if it were personal property. Dower was done away with in Manitoba (if the husband alienated it during his lifetime) before the passage of this Act, Under the old law. dower was one-third of the real estate during the lifetime of the doweress THE RF.AIi I'KOPKUTY ACT OF 1885. 241 liUo OVllll ,tate, lerovi i If tlv woros matte; ist the ffecteil ii'sonal 5 such n'soual ov for robate of coRnizec'i. ative will and the ,er a will, ig to the tciiated it old la^"-- ioweress Under this section, the dowercss would be entitled to one-half absolutely if the husband died without children and without dis(iosinR of it duntiR his lifetime by deed, or at his doath by will. If ttieic wertj^chddren, she would be entitled to one-third. This soeins a better pr')visi(in, unless tin? husband dies insolvent, when the projicrty would probably ro to the creditors. Aholitinn of tenaiicfi hif rurtrittf. 2»1. No liusbantl, whose wife shall dio on or after the (lay of the commenccmoiit of this Act, shall be entitled to any estate by the ciu'tesy in the real estate oi his deceased wife, hut shall have the same rij^ht in such real estate as a wife has in the personal estate of her deceased husband. Same as dower. Under old law, tenant by the curtesy must h.ive hail a child capable of inheritiuf^. These were old feudal ideas, and sometiines worked a manifest injustice. It was worse than alisurd that where two men married, say two sisters, and because one happened to have a child, which may have lived only a short time, that, tlierefoit;, ho should bo entitled to inherit as tenant by the curtesy ; whereas the other, not havini; had a child by his wife, should be deprived of that right. The rule had in it neither justice nor common sense. Under this section, the husband will take one-half of his wife's lands, if she died intestate and witiiout a child living, and one-third if she leaves a child. Ilushdud Jiiaif conrci/ to iri/c (tiul wife to JiiialuuKL ao. A man may make a valid conveyance or transfer of his real estate to his wife, and a woman may make a valid conveyance or transfer of her real estate to her husband, without, in either case, the intervention of a trustee. This is a wise prov riii.'n, and does away witli a roundabout way of doing the same thing. The old idea ihat a wife was a part of the husband, and they were merged in one, seems to be gradually living out in iiKxlern life, so far as the wife's legal rights are concerned. The new mode of thought by legislators appears to be, that a woman is a /imc sole, whether she is married or not. Abolition of estate tail. JJT. Any grant, devise or limitation, which heretofore would have created an estate tail shall be construed to 16 242 THE PROVINCE OF MANITOUA. carry the greatest estate the grantor or devisor had in the hind granted or conveyed. This provision does away with thu necessity of barring an estate tail. Many questions ami lawsuits have arisen on the construction of wills, precisely on this point. It is to be noticed that this section applies retrospectively. Estates tail in Canada have been usually created unintentiunally by a person usinj* technical words in a will — such as dyinp with(>ut issue, etc. — which have been seized upon by courts of law and made to mean somethinK which it is quite apparent the testator never intended. We have in Ontario a statute for barring entails which is a delusion, as persons have been misled in construing it, and by not complying strictly with its provisions. It will, of course, be impossible hereafter to create an estate tail in a chattel real; therefore, this clause must apply to estates tail already created, which are probably not very numerous in Manitoba. I'l % n PART IV. REGISTER — DUTIES OF REGISTRAR. Crown lands alienated licrcaftcr to hccome subject to this Art. 2S. From and after the commencement of this Act all lands unalienated from tlie Crown in the Province of ]\raui- toha, shall, when alienated, be subject to the provisions of this Act. Provided, however, that this section shall not apply to any lands to which the parties may be entitled under the Manitoba Act or any amendment thereof. Crown Lands in Manitoba do not belong to Manitoba at present, but to the Dominion Government. It is a question whethor that was nut a benefit to Manitoba at first, provided they are handed over to her after- wards. The e.xpense of surveying and many other expenses, which have been borne by the Dominion Government, have been saved. If the Dominion Government were to hand over half the lands in Manitoba, the Manitoba Government could easily administer them through the " Land Titles OfTice," tr THE liEAL I'UOrKUTY ACT OB' 1885. 24;J n the ]'roceeiUntj8 on issue of juitcnt — Vtit;/ of Rrijiitmr-Gcncnd. itc tail, if wills, Estates , person — which imethinn have in nns have with its an estate tates tail )ba. Act all [if Mani- iaions of Iball not entitled If. [•esent, but was niit a her after- Ivhich have ll. If the InilobH, the Itho " Land ao. Wh(!iievur any lands nhall hereafter he granted by the Crown, patents shall be; deposited with the Kegistrar- (loneral, who shall, npon the deposit of the patent and such fci'S as in his opinion shall he necessary, procure from the Registrar of the division in which the lands are situate an abstract of title, or certificate, as to any mortgages, encum- brances, caveats, or transfers affecting said lands, which said Ik'gistrar shall furnish upon the retpiest of the Kogistrar-General, and the Kegistrar-dencral shall cause the said title to be examitied as provided for in this Act, and if the title thereto shall be found in the applicant for tlie regi8trativ)n of the patent, he shall registrar the same, or if not, he shall take such steps as he may think neces- sai'y to ascertain in whom the title shall be, and shall then retain, bind the same, and issue certilicate to the party propefly entitled thereto. " Shall cause the said title to be examined as providetl for in this Act." See post, sections 44-50. In Manitoba, there are a Rreat many rights and interests connected with land previous to the issue of a patent. l-and taken up under the Doniinion Lands Act (46 Vict. cap. 17, and 47 Vict. cap. 25), mining land and many rights and interests connected therewith, lorm C. UIXJISTKK. Ucfiistrr — Form atfl iiioilc <\f hcrj/uni. :«>• The iiegislrar-General shall keei) a book or book.s, to be called *' The Register," and shall bind up therein duplicates of all certificates of titles to be issued as herein- after provided for ; and each certificate of title shall consti- tute a se[)arate folium of such book, and the liegistrar- General shall record therein the particulars of all instru- ments, dealings, and other matters by this Act required to T i 2M TlIK I'llOVINCK OK MANITOIU. l»e registered or entered in tlu^ Kef,'ister and iilTccting tluj land includ(!d under each eertiticate of title. ThiB provision is very Kood, inasmuch .is the b()un l.anl Titles Ollice. The day, hour and niinutt' in wliich it is ^ivcn in or lilcd is en- irreil in the Hay l!uul<. Tiie ollici r tht-n, or as soon as jiossihle, fiittjrs in tlif Kij^istiT, iht! innn iri.il —which is a slinrf litvsiTiption ol the instnmieiU as stated in section 3.). 'I'lie time is taken from the Day Hook It is rt'nisti'ti'd as somh {(ni ,-i urant) as it is marked " by llie Kf),'istiai-('ieneral with the fohuni ami volume on, and in wiiich it iseinbodii.d in the Ke^ister Hook; for a transfer or otiier instrument ;is soon as a tiumoriiil (See section 34) thereof is entered in tlie Henister niioii the folium cinsfituted by the existing; f;rant." ln»trum<'ui» for rriiixfntfion ,• Itoir tn \>c atti'sfril — Order of rcii'tat rn-— !'](}'( ct of rrijintroiiou. n:<. Except as hert'iiijiftcf otherwise provided, every iustninient pri'seiited for re{j;istriili(*)n shiill, unle.ss 11 Crown Kraut, ho attested by a witness, and shall l)e ns^Jiistered in the order of time in whieh tlu! same is presented for titat purpose ; and instrnun'iits re^;istered in resi)ect of or atTeet- ini^ the stiine estate or interest shall, notwithstandinj,' any express, implied, or constructive notice, he entitled to priority uccordiu}^ to the time of re<^istration, and the liej,Mstrar- (ie)ieral upon refj;istration thereof, HJiall iile tiie same in his (ttUce ; and so soon as re^'istered every instrument shall, for the purposes of this Act, be deemed and be taken to be embodied in the Iterjister as part and parcel thereof, and such instrument when so constructly embtxlied and stamped with the seal of the llejiristrar-CTeneral, shall there- upon create, transfer, surrender or discharge, as the case uuiy be, tlie estate or interest therein mentioned in tlie lands mentioned in the said instrument. The effect of this provision is to carry out the principle of the Torrens' System, viz. ; that there was no transfer of the estate or interest till regis- tration. The time of this transfer is the time entered in the Day Hook, (see section 31,) and the whole estate mentioned in the instrument passes at the particular day, hour and minute entered in the Day Book, which time IS transferred from the Day Hook and entered in the Register book whea the memorial is made. '21(1 TiiR rnoviNCE of manitoha. Ptirticidara required in meinoridla. Jll. Kvcry memorial ontorcd in the lU'f^MHtcr shill stato the Mutun^ of tlio inHtriiiiicnt to wliicli it rclatcH, tlio day, hour and miiiuto of tlio prcHoiitation of Hiich iiiHtnimL'ut for re}4istration, and tlio names of tint partioH tlicrcto, and hIuiU refer by number or syndjol to hucIi inHtrument, and whall bo signed uy the Jtet^istrar. This word "inoinori.il " will puzzle most CTanadi.in rcri(l<'rs at first till it is unilerstooil. Our itlua of a " moinorial " is derived from the old sysn-m of memorials that we used to have in Ontario, which was copied from ilif rofijistry laws of IuikIuikI in force in some counties. The meaning' of a memorial in this Act is not a pap(T at all, it is the entry made in the KegistL-r liook, and is a short description of the instru- ment. Wlien it is entered in the Ref^istcr liook it becomes a memorial and duplicates are taken from it. Memoriiih to be recorded on dupliente of firant, etc. — Certili- cnte of time of reijistration — Evidence of. \i 5 JW. Whenever a memorial of any inHtrument has been entered in the Kcjijister IJook the JU't^iHtrar-deneral shall. except in the case of transfer or other dealinj; endorsed upon any certificate or other instnnnent as hereinafter provided, record the like memorial on the dnpUeate certiti- cate, or other instrument evidencing title to the land intended to be dealt with or in any way atfected, unless the Registrar-General shall, as hereinafter [irovided, dispense with the productiou of the same ; and the Registrar- General shall endorse on every instrument so registered a certificate of the day and hour at which the said instrument was presented to be registered, and shall authenticate each such certificate by signing his name and atlixing his seal thereto, and such certificate shall be received in all courts of law as conclusive evidence that such instrument has been duly registered. Tin; Ki'.Ar, iMtorKuiY act or IHHG. '2J7 " Fxcfpt in the c.-tnc of ttansfer or other dfialinn,'' tis liprt-iiiaftor provided. See soilions qj, 94, qs, ')<>. the provisions niado in Ihr cax«5 of transft-r of land s^hcn the owner, absent from the I'rovincc, is dcsirouH of transferring it. Form 0/ inHlniiinntH for reijiatratioti. — Prorino. •to* The lU'^Mstnir-GotuTiil hIiuU not regiHtrr any iii- Htruiufiiit piirportiuj^ to transfer, or otiicrwiso to (leal witli or atTect any land which is Hul>ject to the provisions ot this Act, except in tlie manner herein |)rovi(h'(l, nor tniless Kiich instrinnent hv in accorcbuKte with tlie provisions liercof, l)ut any instrument suhstantially in conformity with the scheihiles to this Act or an instrumint of like juiture sliall l)o Bulllicient ; Provided that the lle^'istrar- (jreneral sliall have power to rej«!ct any instrument appear- ing to ho mitit for rej^istration. Under the statute an instrnrnmt is inojierative until roRislration, inde- pendently of any iiuestion of priority. Nntinnul Hank v. United Hand- in-Jliind, etc, Co., 4 Appl. (!a.ses j()i, 407, Vutoria, Australia Kt'iiorts ; Ca/iill v. lliHty. 4 V. L. K (IC.) 6.S ; and /..//;/.'-<• v. Riid.. 'It. (> S. A. !.. K. 75; 7 S. A. L. H. I, discussed in Ciilhhertscn v. Swan, 11 S. A. I.. K. lo^. Whut tlocunienls inny hi' reijintervd. 37. All such documents may he re{,MHtered under this Act as are capahle of heintj registered in the lieyintry Offices of the Trovince of Manitoha at the present time, and which are not inconsistent with tiu; provisions of this Act. liy the Land Kegistration Act of Manitoba, Con. Stats, of Manitoba, cap. 60, sec. 14, the following instruments and proceedings may be registered ; (1) Grants from the Oown, deeds, conveyances, assurances, bonds and agreements for thi- sale or purchase of land, ami all other instruments, including sheriff s deeds of sale sold by virtue of their office, certificites or deeds for the sale of lands for taxes, or any instrument in any wise affecting, in law or in equity, lands in Manitoba; (2) Powers of attorney, under which any deed, conveyance, assurance, discharge of mortgage, or other instrument has been or may be executed ; (3) Wills and devises of or affecting lands ; 1.1 fl ♦2IH Tin; I'lioviNci; (»k manitoiia. (.|) Cvrtificntes of the (ilinK or iliNiiiiNsal nf niiy bill, nnHwer, or the tnkiM){ of nny pro(;c(*ilin»{H iti any court on its ci|iiity siilv, wh'trcby any litiii to or intnr)" t it l.in>ls iiiny litt lirntiKhl in qUfHtinn ; {!<) ('crtifK .111 s oi ,.tii r u tiiiii of iiKirtK.im's , (7I And nil other itiHtninicntH in thu I'lrat Acciion of thi^ Act mvntionetl, ami I'vi-ry oiIut instriiiMniit aflVctinK lands in Manitoba in 1 tvv or i!c|iiity, or olherwiso, liowiouvcr. )m^^ r r I'AUT V. MANNKll or HUINdlNO LANDS I'NDKIl ACT. OiniiTH tif' ('ntiiti:s, (7c., /;/((// (tiijilii. ilH, Tho ownur of any <'>itiite or intorcst in any land, wlu'tlicr lof^al or ('(luital)!*', may apply to have hia title ro^iHtcrcd under tho i)roviKions of tlii« Act, but it nhall l)o in tins discrclion of llio lU-.i^Mstrar-di'iJcral to rctfuso to entertain any such application, except upon such conlitions UH he may think lit to impose, unless all other persons who are admitted to he interested in the land shall he parties to the application. This is a wide provision. " The owner of nny estntc or inlirest," etc. I'mltT tlic intt.Tprctatic-n cl.inse, "theowiu-r" would iiu;,'in also " persons who collectively claim to be the owners," as in Victoria Act. The Victoria Act states shortly, (section 17): Land alienated in fee may be brouf^ht under the operation of tiie Act by an .ipplication (Second Schedule) wiiich application rnay be made by any of the following persons ; (i) The person claiming to be the owner of the fee simple either at lasv or in equity ; (^) Persons who collectively claim to be the owners of the fee simple either at law or in eijuity ; (3) Persons who have the power of appointing or disposing of the fee simpile ; (4) The person claiming to be the owner of the first estate of freehold if the owner of the first estate of inheritance shall consent to the appli- cation ; TIIF, IIFAI, I'lUH'KUTY ACT <»K IHH.'. 240 (3) TriiHtfteii for iiain of the fro aimple, but if any {irevioiia coniivnt to their itrlliiiK bo rc>|iii) Tha Kii^r'ti'in of any infant, or tha coinmiltre of th« entatn of any lunatic or jhtsou of un> umii niiti'l, iin.il>l<' ti'^jovi-rn ltiii'"tl.itf, nn, how- ever, that tho apphration bo ina>lf on behalf > inxiio in his name (!ompare(t wuh iho pruvlHiuns in the Victoria A( t thin ttit linn ii, so that by thm simple provision almont all thn cases iiH-ntiont'il 111 tho Victoria Act sooni to bo met. My scctiojin 17, f)H (><), iijti, .tiiil im, provision is mailteinii{ as thornn montiotiod. It may be (picstioncd whether those monlioiu-d in sul>-H«ction 5 of N'iitoria Act could "litin>{ their land iiiid' r tho Ac" in Manitoba. In Victoria, whon " trustees, with power to soil or nmrtKaKo, oxecut>'d a mortf^a^o with 1 jxiwor of sale in case of def.tult in payment oii one tiioiiili's tiotico, and tin? iiiortuaKoo mM ,ind llio purchasor applied to briny the land under the .\ct, it h.is been hoM th.it tli"U!;li the iriiiTtion of a power of sale on such short notice was of doubtful validity, the cortiti- cate shoidd ihsik; (jn iho a|iplic.mt Kivinn stuii indemnity as miuht hr reipiired by tho Coinmibsioner of Title t." in r^- Siill,r, i \'. K. (L.) iij, i A Ik. 7J. Ajtjiliiitlittii, ItDif iiinilc. ;|U« Every appliciilioii lor lir.st rci^islnition undt-r tliin Act, except l»y imiucdiato ^^'I'luitcr.s IVoin tlus Ci'osvn, sluill bo in writing' in the pr(;sciil)t'(l form, aiul shall he iiccoin- l)aiii('il l)y tliL' unidavit of tlui applicant, also in tlic pff- sciilKil form ; Ixit siicii iitVidavit may, in the discretion of the lle;^'istrar-(iencral, ho dispmsed with, or may he made hy some other person instead of the applicant, or partly hy one person and partly hy another, al the discretion of tiie iJe^istrar-denerul, and in such case the atlidavit or atlirma- tion hIuiII he modilied accordinj^ly. "Shall be in writing in the prescribetl form " There does not appear to be any firfscribat form in the Manitoba Act. But by section ly;, tho Lieutenant-(iovernor-iii-Council may make such forms. Till they are issued the form in Ontario Act (see pyge i(j()) may suHice , or the form in the Australian Act, (see appendix). The affidavit in Ontario \ct of the applicant (page 197) may suffice. , 8 i Im^ Tlir. I'UOVINc-K OK MANITOIIA. In Aiislr:illa, GMM, wharo lh« lidn cnnnint* of only a rrnwn Kr.inl and thri-t! »im|tli! >lMiUn||ii, ara callvd " %\uttt c4Mtii." an>l iir«enlitlttl are r(*ckonr4 of tlio ('crtiru'att' of tlio applioutiun nudav tliiH Act ; Deeih. ('2.) All (1('('(1h ill posHt'ssion of applii-ant ; Ci'rtij'utl otpicH oj uthvr ilieih, (8.) A t'crtirii'il copy of all rcf^istcn'd instrmnrtitH afTrot- int^ till' liUKJH, liio orij^inalH or duplicati'H wlieri'of he is uu- able to protlu(;o ; provided that the Jlc^^istrar-deMcral may dispeiiHo with such production when he shall have been able lu inspect the originals tiled in the Kegie>try Otlico. Proof of murkctnhle title. (4.) Proof of facts npo«'Hsary or required by the Itegistrar- General to make out a good marketable title. (i) That means a certificate from the oKl KcRistry Offices, viz: an Abstract of Title of all deeds and transfers down from the Crown, properly certified by the KeRistrar, " down to the time of the filing of the certijUate of application," This seems to contemplate that when the applicant pro- duces his application and affidavit the Registrar-General shall give him a Ctrtificate uf application. See sees. 42-43. TIIK M'.kL MlorKUTY Al'T Of 1885. 2Q1 fl' nil Al'idii'titinn to hejiltil in Lnml 't'itlm (>l)irt' II. I'! very Miicli iippliciitioit hIiuU \>u tilcil in tlii> litiiul TitiitH OtVict', utul nIiiiII, if urcti-tHury, li«> rttVircti to otic of tliu cxutniiK I'H of titli'M, if siutli tli(>rt> li«, iiiul if tlutc ho no Htich (ixaniiiKT of titliM, thou thu iU>(;iHtt-tU'-(lcii(;ml yhiiU hiiiiHi'lf invcsti^iitu th«> tith'H. The exainirier of liileit A|ipointt)(| utiiler Act ii Felix Chevicr, Kn«i. Cfrtij'u-tite of jHinq o/ tipplication to itdiic. •ISI* Upon the filing of hucIi iipiiliciitioii the llc^istnir- Oenenil nIihII forthuilh iHHUc to the iipplicuiit ii cri'tiliciiti) of till! tUin^' th(>ri'of, in thu pruH(-ril)t>(l fonn, and uiithr the Ht'iil of hiw ortico. Ni) prescril)t'{ the following lands under 'The Heal Property Act of 1H85.' The North-ICast (N.-l-! ) qu.irttr (\) of section one (i) Town- ship two (i) RanKC four (.}), West of the ist I'rincipal .Meridian. "Dated at Winnipeg, this nineteenth day of December, A. D. 18H3, at 12:30 o'clock, p. 111. "JAMliS A. MILLliK. — • -- " Kegistrar-Cleneral. IsEAlI " To the Registrar of the County of Selkirk." ^ licflistration thereof. 1 43* Such certificates shall thereupon ho registered in tho proper Registry Office of tho division wherein tho lands in question are situate, hefore the investigation of tho title ho proceeded with. 252 THE PROVINCE OF MANITOBA. 111; 1,1'? Does not appear to he any uao in this provision, and it might turn out harmful. It puts a stop to the dc.ihng with the land both under the new and old systems. The Ontario Act seems better m this particular. The dealing with the land is not changed in Ontario Act till the certificate of title from the Master of Titles is registered in the Registry Ofiice, It might take a month getting a certificate of title through, and the owner might wish to deal with the land under the old system. * rOWEIl AND nCTIES OF UEaiSTUAn-OKNEUAL. ) ■'• Powers of Itc.tjiatrar-Oeneral. 44. The Kei^iHtrar-Genoral may exercise tlic following powers in addition to others conferred under this Act : — Production of documents. (1.) lie may require the owner or mortgagee, or other person interested in any land in respect of which any transfer, lease, mortgage, encumlirance, or other dealing, or release from any mortgage or encumbrance about to be transferred or transmitted, or in respect of which any transfer or transmission is about to be registered, or regis- tration abstract granted under this Act, to produce any grant, certilicate of title, conveyance, mortgage, lease, or other instrument in his possession or within his control, affecting such land or the title thereto. Summons witui'sses — Pcn(dties. (2.) lie may summons any such owner, mortgagee or other person as aforesaid to appear, and give any explana- tions respecting such lands, or the instruments affecting the title thereto ; and if, upon requisition made by the Registrar-General such proprietor, mortgagee, or other person, refuses or wilfully neglects to produce any such instrument or allow the same to be inspected, or refuses or wilfully neglects to give any information or explanation which he is hereinbefore required to give, or knowingly misleads or deceives any person hereinbefore authorized to •w io or ana- ting the )tber such uses ation ngly ed to THE REAL Pr.OPERTY ACT OF 1885. 25d tleraand any such information, he shall, for each Huch ofT(>nco incur, upon conviction, a penalty not oxccodinf^ five hun- dred dollars ; aiul tin; UegiHtrar-Cteneral, if the infDnniition or explanation so withheld appears to him material, shall not be bound to proceed with the registration of such transfer or other dealing, or with the issuing of such registration abstract, as the case may be. Form of summom. (3.) Every such summons issued by the Registrar-Gen- eral, as above mentioned, shall be in the prescriluMl form or to the like effect, and in the event of any disobedience of any such summons being certified to the Court of (^lueen's Bench, may bo enforced by such court in like manner and by the like jn-oceedings and with the like penalty as sub- ptenas of such court. Administer oaths. (4.) He may administer any oath or take any afllrma- tion or declaration in lieu of an oath from any one entitled by law to alVirm or declare. M<(ij correct errors in certificates. (5.) He may, upon such evidence as shall appear to him sufttcient in that behalf, so far as practicable without preju- dicing the rights conferred upon transferees for value, correct errors in certificates of title; or in the Registi'r, or in entries made therein respectively and may supply entries omitted to be made ; provided always, that in the correction of any such error he shall not erast; or render ille^,'ible the original words, and he shall aflix the date upon which such correction was made or entry supplied with his initials, and every certificate of title so corrected, and every entry so corrected or supplied, shall have the like validity and effect as if such error had not been made or such entry omitted. 2S4 THE PROVINCE OF MANITOBA m 1 Enter caveat on behalf of Her Majesty and others. (6.) He may enter a caveat on behalf of Her Majesty or on behalf of any person who may be under the disability of infancy, lunacy, vV unsoundness of mind, or absence from the Province, to prohibit the transfer or dealing with any land bolonr;in^, or supposed to belong, to the Crown or to any such person as h('reinl)efore mentioned, and also to prohibit the dealing with any land in any case in which it shall appear to bira that an error has been made by mis- description cT any such land or otherwise, in any cerhTicato of title or other instrument, or for the prevention oi any fraud or improper dealing. Mark or stamp any inst nun ent produced t<) him. (7.) ITc may mark or stamj) any instrument produced to him with a memorandum indicating such production, and the number distinguishing the application in reference tc which the same was produced. Endorsements on certificate of title, etc, (8.) The Registrar-Cleneral sball endorse uj:on the certi- ftcate of title, a memorial of every mortgage, encumbrance, lease, rent-charge, term of years, or other dealing affecting the land, and such memorial shall be endorsed u{)on the duplicate in the possession of the owner, if any, as well as upon the duplicate which is in tiie Register. May dispense irith production of certijicate of title, etc. (9.) The Registrar-General, in case he shall see reason- able cause for so doing, may dispense with the production of any certificate of title, lease or other instrument, ior the purpose of entering the endorsement by this Act required to be entered upon the dealing with land ; and upon the registration of such dealing the Registrar-General shall THE RKAL rROl'EUTY ACT OF 1885. 255 note in the entry of the memorial in the Register that no entry of hi. h memorial has been made on the duplicate grant or other instrument, and Huch deahng hIuiII, there- upon, be as vahd and effectual as if such memorial had been 80 entered : Provided always, that before regintering such dealing the Registrar-General shall, in such case, require the party dealing to make an alKidavit that such grant or instrument has not beei* deposited by way of lien or as security for any loan, and '.satisfactorily to account to the Registrar-General for its non-production, and shall give at least thirty days" notice of his intention in some newspaper published in the Registration District, if there be such newspaper, or in the absence of such publication to give such public notice as the Registrar-General may think necessary. Ren i 8tr I tr- General or Examiner of Titles may require plan of land aeeordinij to seales. (10.) The Registrar-General or Examiner of Titles appointed under this Act may require the owner of any land within his Registration Division desiring to transfer or otherwise to deal with the sanu' under tiie provisions of this Act, to deposit with the Rcgistrur-G'ineral a map or plan of such land, with the several measurements marked thereon, certified by a licensed surveyor, and upon one of the follow- ing scales :- If lens Otdu one aere {a) If the land, or the portion tluireof proposed to be trans- ferred or dealt with, is of K'ss urea than one acrt;, then such map or plan shall be on a scale not less than one incli to two chains. Over one und not more tJuni five. (h) If such land, or the portion thereof proposed to be transferred or dealt with, is of greater area than one acre, but not exceeding live acres, then such map or plan shall be on a scale not less than one inch to live chains. 11 i 't i! Vi ■ 25G rilE PROVINCE OP MANITOBA. Over Jive hut not more than eiifhtji. {c) If such laiul, or the portion thereof proposed to l)o transferred or dealt with, is of f^reater area than five acres, hut not exceeding eighty acres, then such map or plan shall ho on a scale not less than one inch to ten chains. Exceeding eir/hty. (d) If such land or the portion thereof proposed to bo transferred or dealt with, is of greater area than eighty acres, then such map or plan shall bo on a scale of ono inch to twenty chains. Attcstinn phm. And such owner shall sign the said plan and declare the accuracy of the same befor^j the Kegistrar-Gicneral or a Justice of t'le Peact. If owner does not comphf. — Proviso: as to the subsequent divisions. (e) If such proprietor neglects or refuses to comply with such requirements as aforesaid, it shall not be incumbent on the Registrar-General to proceed with the registration of such transfer or dealing : Provided always, that subse- quent sub-divisions of the same land nuiy be delineated upon a duplicate of the map or plan of the same so deposit- ed, if such map be upon a sufficient scale in accordance with the provisions herein contained ; and the correctness of the delineation of each such sub-division shall be acknow- ledged in manner prescribed for the case of the deposit of an original map. As to parts of legal suh-divisions. (11) "Where parts of different legal sub-divisions are included in the same transfer, the map shall represent the TlIK HEAL raOPEUTY ACT OF 1885. 267 whole of such legal subdivisions, and HJiall indicate tlie location of the lands to be tranHfurred : Provided always, that this shal! not be necessary in the case; of lots in a city, town or villaj^e, the plan of which has been registered. IS are it the Accounts to he krpt. (12) The Hegistrar-General shall keep a correct account of all sums of money received by him in accordance with the provisions of this Act, and siiall pay tlio same to flu; Provincial Treasurer at such times and in such manner as shall be directed by the Lieutenant-Cxovernoi-in-Council. The Manitoba Act in this section enumerates a Rrcater portion of the powiTS of the KeRistrarGeiieral and arranges theiu under sub-sections, which appears to be a more concise method than that adopted by the English Act. (i) See iiiitt ii8 and iig. In Victoria Act, No. 301, section 27. " Upon registering a certificate of title the Registrar shall endorse upon the last material document lodged in support of the application, a memorandum that the land has been brought under the Act, and thenceforth no person shall be allowed to inspiict the ilocuments or to have a cop/ or extract witho'it the written order of the applicant or some person claiming through or under him, or upon the order of a Judge, or the Commissicmer." This (jrder may be made ex parte, re Slack v. Winder, 4 A. J K. 117, iiS. (2) All persons having any claim to the land or deeds should have notice of the application : ex part ■ M(>rf>an, 4 A. J. R. 117. The person beneficial- ly interested in the deeds should be summoned, and a summons upon a solicitor holding the deeds for his client is insuHkient, per Moles'vortli, J. In re Rattray application, a'Beckett, page 86. In Australia such applica- tions are rare, as the solicitors havmgthe custody of deeds usually pro luce them at the Office of 'J'itles on payment of a fee of two guineas. WluMe titles aie known in the office production of the deeds is often dispensed with. Si'dg. 13, 15. Under section 26 of Victoria Act, an applicant may withdraw his appli- <:ation at any time prior to tlie regis' r.it ion of thecei titicate, but if caveator i.as been put to any expense he is allowed for it as a judge on a sumi:;ons m chambers may deem just. If the certificate of title is directed by the applicant to issue in thi; name of some other person, the applicant cannot withdraw his application until he produce the written consent of such person to the withdrawal. The Commissioner (in Victoria) has, under special circumstances, allow;.'d an 17 'H ■■■ ■! ■m ' !:, Hi I 2r)8 THR PROVINCE OF MANITOHA. npplicntion to be re-ope 'ed after it has been withdrawn, but such permis. sion is not generally (jranttiJ. (3) •' In till- prrscrihul form.'" There is no prescribed form under the Act itself, but under section 'j the KeKistrar-Cjeneral may make ruj-ulatinns, ami under section 1,17 the Lieutenant(lovernor-in-Council has power to make rules, to alter any of the fi.ims and mak;e, who is known to th-i Office of Titles to hold in a tiduciary capacity. T his knowleiltje may be actpiiicd either during the invesii^jation of title, which takes place previously to land bein;,' brought umUr the operation of this Act, or in case of land already under its operation on the death or insolvency of the re>;istered pro|)rietor. Whenever the Office becomes possessed of this kn<)wled;^e, the letters S. ( ). arc entered in the register book. These letters are not intended to act as a caveat, but merely as an office memorandum to jirevcnt it beinf* lost si^ht of that the re(;is- tcred proprietor holds in a fiduciary capacity, and to ensure thai any liealinj? by him lie .'submitted to the legal branch for advice as to its propriety. Should full particular;; of the trust be in the possession of the Office, and the projiosed dealinj' bo considered to be in accordance with the terms of the trust, it will be at once passed for re'j;istration ; on the other hand, should the He^istrar be advised that the proposed dealing .-imouiits to a breach t>f trust. rej^istrati(>n of it will be refused, and the Commissioner wdl make an order ilircctins; the Re>.;istrar to enter a caveat vn behalf of Her Majesty, forbidding the registration of the dealing in (juestion. l^ut it often happens that the Office is not in possession of th;.- particubnTs of the trust, altlv ••;;;h having' knowledge of the trust itsilf. Ir such cases the Uigistrar ».id be advised to require the special owner t> furnish evidence c4 his King justified in equity in dealing with the land in the manner projvsed : should the sp(;cial owner refuse to furnish such * vidence. the proposed dealing will be assumed to be an mproper one, an.i the Coniinissieiier will interpose by cav.it. The Commissioner wdl inter- pose in like manner should the Registrar be adviseil to recpure the ;;peci;d owner to furnish a wiitten consent to a proposed dealing from any person benelicially interested and the special owner refuse to comply with such. TlIK IlKAI, I'UOI'KlirV ACT OF 1885. 25!) requiaition. AlthmiKli tlie lethality uf the {uacticuof the Office ai to special ownership has boen much (lueniioneil, Kr^undA of refusal under suction 133* ^f 'hi^ '^ct h^vo only been required in two instances." *If Upon the iipplicjitioii of any owner of proprie- tor {<() to luivo liiiiil l)r()U<,'lit iiiKk'r tli<' operation of tliis Act, or t(' liave iiiiy (icaliiij^ or trnnsinisHiou ri't^'istcrcul or recorded, or to have any certirKtate of title, rej^istration abstract, foreelosnre order, or other (h)cuinent irtsued, or to have any act or (hity done or perforineil, whieli hy this Act Ih re(piired to \h' done or performed hy tlie lle^'istrar (/»), tlie lte^,Mstriir shall refuse so to do ; or if such owner or proprietor sliall ite diHsatislied with thc! direction upon his application ;^iven hy the CotnniisHioner, it shall he lawful for such owner or proprietor to ri (piire the lle^'istrar to sot forth in writing under his hand the grounds (ih of his refusal, or the grounds upon which such direction was ;,'iven : and such owner or projiri. tor may, if he tliiidv fit, at his own costs, summon [r) the liegistrar to appe;ir hofore the Supremo Court to substantiate and ui)hold the grounds ( V. L. K. (L.) 45S, 463 The cast! of Dennis Ki^enstaedtei (Ari^us. 6lh December, 1^(15), seems to show that although technicalities arc disregarded the ecpiitable title must be unim- peachable, and such as a purchaser could be conipcllcd to accept in a suit for specific ptMfoimance. In that case the applicant had bought from trustees under a settlement, who were empowered to sell with the consent of husband and wife, tenants for life. Tlu; husband was out of the coloiiv at the time of the sale, his consent to which had been given under a powcii- of attorney, and the ground of objection sustained was as follows : — "That the consent to the sale involved discretion and judgment and could not be delegated by power of attorney." The ptjwer had special referentu to the consent required, but the I'ourt ratified the refusal on the above objection. In ix parte Dongliarty, 4 A. ]. R. 71, the trustees of a settle- ment having power to exchange the settled lands for other lands, " yielding a rental eijnal in amount to the lands exchanged tor the same," didexchan'^e the settled property f(jr other property of greater value, but not actually yielding any rent at the time, and executed the necessary conveyances under the general law. The (^ourt helil the power badly exercised, and refuse 1 to make an order for the registration of the vendees of the settled land who sought to have it brought under the statute ; and see note (f;) infra. (i) These summonses are heard in term before the full Court. Counsel for the Registrar opens the case at length and replies. (i TiiK nF.Ai. rnoi'KiiTY ACT or lHHr>. 2(5 1 , 1 (8). " A memorial of every morlKnK<>. "U-., ue M'ction 34." Mrmori.il in thin Act in nuthinf{ tnoru llian a fihori (lt»tcri|)(ioi) of thu instrument. Hy Bcctioii JO tim Kt'xistrar-CM-iieral luniis u|> in " Tho l<«'KiKter " a duplicate of all icrtiticatiHor title iiiiied My this siili-sectioii he isdirecteil to enilorMo ii|ion the certiticnte ul title a memorial of every mortKa^e, etc., aifcctitiK the l.tii>'>, aii'i also upon lliii thiplicato of the lertificate of liili! in the poHHe8i»ioii of the mviier. Tht; two sections wouM seem t > \>o. contra- dictory ; only the certificate of title and duplicate are the uamo thing practically. i {/) I'mltr tilt! cnrrespomliiiK' piovisjons of Act Nu. ljo, m-c. 107, the Court Irt'atc'l an applu atimi ul tins kind as in the nature of .111 applic.ilion for a iiittniliiniiis to the Registrar to pt'rform his supposed dul\'. In such cane the Coiiit svoulil ilecliiit! to interfere unless it s.iw must disiini ily that the applicant's title was a n^od one, i'lts^^trtild \. Arihcr, i \\ W. and a'H. (L. 40 ) In a later case, ;we mi^ht ihrow a burden iijuin tin- insurai.ce fund" /« r/ Transfer of Land Statute, r.r /'arte luilk, U V. L, K. (I,.) 405, .\iu) (g) Where theCiiinmissiiinfr, instead of askinR the opinion of the Court under section laS.oi^', decided that the words "any writ," in s ciion 106 tiiilt', meant .m oll^;in.ll and not an (i/i(i.v or hliiriti writ, and incniisiMpn-nce of that decision rtvi'tr.'itinn was refused, tiie '"mirt, licii',i; of a dilleii-nt (ipinion, ordered the tr;insler ti> Ixr rcnistered, and all'wed each party to hear his own costs In /■(■ Tiie Transfer of Land ^it.ituti!, ('.r /'(ir»'<' I'ufirsoii, T^WK. (\..) 128, J A. J. l\,lication until the (jiiestion h.is been (iiially deciiied if an apfieal is peiidiii),;. When, under such circum- stances, the F{e^;istrar refuses to re^^ister or take any sti.'ps towards investi- gating the npplicim's title, the I'oiirt ihoii;^lit In; sliniiM li;ivt; at least [•roceeded to consider all the other (]uestions on the title peiidinj; the appeal, so a:* to save time and expense to the applicant, but, in view of tht l|i| nn a Iran*- iniittion, and this vnlue tAcmaU tj.Koo fio on Thfl like Mhitn tha value rxccittU $1,600, un>l liotn not rxcrml f j.dim) 8 o 00 The hk'' \\h<'i> Iho valut) I'Xi I'cdt fMuo, i)n)' Act at \ ul a irnt in (h« dollar For every ceriiru-ate of titin ^ 00 l'*or r<' .'i^iciiiu; .r,ti.ui«ifi'r. iir a ifato, inortK-tKo "r i'har,.'t>, nr tr in^fur llicri'Mt, or a dittcliarKi! of a ni<>i(KnK(\ or ( haruf, wholly or partially, or a satiaf.tction of an annuity, or a nurrendcr of .1 !•' isu i 00 When any iuNtrument pur|)ortH to doal with orafiectn land imduded ill tnore than one Kniiit or ifrtificiie, for lach iikmikii iai of thu firot o 30 lor rrnisterinR proprietor of any frefhold Ptitato or interfnt on a transmiimion 4 no I'or every rcKistration ubittract 4 00 1 or fvory civcat 2 00 '.or witliilra^sal of cavcit t 00 lor entry of forecloHure 4 00 I'or evei y Hearch o 50 ("or every general s«;arcli i 00 i'or every map deposited i 00 l''.)r di'P'isitint; ilucumciu de> lar.il'iry nt trusts i od i'or rc^jisturinK rt'i:>ivery of possession by 1' ^a. procoedinKs, or re- KisteruiK the lessor a<\ ^ Q- i/i ^ \ J'i* 264 THE PROVINCE OF MANITOBA. For every certified copy : — First folio of seventy-two words fti oo For every folio, or part of folio, after the first o lo For every map thereon o 50 For taking affidavit, or statutory declaration o 20 For a special cumniission 3 co For every summons o 50 For examination thereon (per hour) 1 00 For entry of an executor, or administrator or the curator, or the assignee of an insolvent, as a transferee or proprietor 2 00 For entry of husband as joint proprietor 2 00 For entry of survivors, or other persons as proprietors in cases of joint proprietorship 2 00 For certificate *o court 2 00 For special case — First folio i 00 liach additional folio o 10 Vov filing adverse claim with statement and allidavit 2 00 "Executive Council Office, "Winnipcj?, 25th June, 1S85. ' ~ijy certify that the foregoing Tarift of Fees payable on making app. ■ .: on to bring land under the operation of " The Real Property Act of 1S8-,," was approved by His Honour the Lieutenant-Governor in Council, on the 2,;nd day of June, 1885, in conformity with the provisions of the above mentioned Act. "C. A. SADLEIR, Jk., " I'lerk Executive Council." By a letter dated the 30ih November, 1885, from the Registrar-General, it is sfated that the working of the Act has resulted as follows up to that time: — "We have had forty-eight registrations, twenty-four a['plications for certificates of title, ten certificates have issued (the time is not up in the others), one caveat." The cost so far is from 83 to ^2^, or on an average of about ?i5. This of course is only the costs payable to the Land Titles Office. The costs of solicitor and the premium for assurance must also be taken into account. On iMymcnt of fees all titles to he examined. 48. It shall be the duty of the Registrar-General, on payment of such fees as may be prescribed, forthwith to cause to be examined all titles which may be submitted to him, or any one of the examiners of titles, and to deliver to THE REAL PROPERTY ACT OF 1885. 265 the applicant a written momorantlum of all defects which on such examination may be found in the title, and which he thinks should bo removed. liemoval of (Ict'ccfs, axd (ulrirtiacmrnt. 1!K On the removal of such defects, or if none shall exist, the examiner shall re([uire the applicant to publish the advertisement reijuired by this Act, and to give such notices as he may think should be given. " Advertiseiuent required by Act." See suL-section {^) of secticui 44 ante ; also, sectiuns 51, 52. Evidence rercivuhle. ♦50. The Registrar-General or Examiner of Titles in investigating the title may receive and act upon any evi- dence which is now receivable in any court of this Province, See ante, pages 50, 57, 5S, 59. If applicant oritiinal ffrantee of Croicn, no cncuinhrance, etc., affecting and title clear — Registrar-General may direct registration fortluritli. 51. If the applicant is the original grantee of the Crown of the land, and no deed, mortgage or other encumbrance or instrument or caveat aliecting the title shall appear to have been registered, or, if not such original grantee, all the original title deeds shall be produced, or the applicant has complied with section i3i) of this Act, and the applicant shall be in actual ot^cupation of the land in question, or (the lands being wild) if he shall be in constructive possess- ion thereof by paying taxes thereon, ^nd no caveat shall have been registered, and if the Register-General, or other examiner of titles, shall certify that in his opinion there is no defect whatever in the title of the applicant, the Regis- trar-General may, if he thinks proper, direct the title of the 266 TIIK PROVINCK OF MANITODA. applicant to bo forthwith rt'^istered nndf^r the provisions of this Act, and may give a c( rtiiicatu of title for tho wame as hereinafter doHcribed, without any ndvertisement bein;^' publiHlied as provided in the next section. In Victoria (Australia) "cases where the title consists of only a f;rant from the Crown and three simple ilcaluiKs are called 'short cases,' and are entitled to priority of reference. Se>'er,.l clear titles are passed without investiRation and are r^ickoned as Crown grants in taking,' short cases." a' Beckett, p.iRe 80. This section is very wide, and sei'ms to bo admirable. Piihlicatum < if notice before certificate (jranted. ;52. In any such ease, if tho Registrar-General shall .so direct, and in every other case, before a certificate of title shall bo granted ui. n : the provisions of this Act, notice of the application shall be published in some newspaper or newspapers, in such form and for such period as the liegistrar-General may think expedient, and the certificate BJiall not be signed or executed nntil after the expiration of at least three weeks from the first publication of such notice, or such other period as the Registrar-General may think tit. Whenever the Registrar-General may direct, an advertisement is to be published, if the case comes under the provisions in section 53. If the case does not, " notice of the application shall be published in such form and for such period as the Registrar-General may think expedient, but the certificate shall not be signed or executed till the expiration of three weeks from the first publication." See page 59 and Rule 9 of Land TitL-s Act. Adverse claim — Statement to he filed. 53* Any person having an adverse claim or a claim not recognized in the application for registration may, at any time before the Registrar-General shall have approved of the applicant's title, or within such further time as the Registrar-General may direct, file with the Registrar- General or Examiner of Titles a short statement of his lit'- TUF, UKAL I'ROIKUTY ACT OF 1885, 207 claim in the prescribed form, verified hy attidavit to be filed therewith, and shall serve a copy thereof on the applicant or his solicitor or agent. As to the practice in Australia with reR.ml to " adverse claims," see page 56 (iiite, Chiiin to J)t' 4. In case any adverse claim bo filed with the Jlegistrar- General or any Examiner of Titles, ho shall proceed to adjudicate thereon or may refer the same or any matter involved therein to any court or to any mode of investiga- tion which he may deem expedient ; and no certificate of title shall bo granted until such adverse claim shall have been disposed of. As to title by poss-ession, no doubt, if an undisturbed title can be shown, it is the best title. But it is difficult to show that possession has never been disturbed. A title where no deeds exist should be rigidly enquired into and strictly proved. (Lee on Abs. 27.) In Cottnll v. Watkuis (I Beav. 3G3), the Master of Rolls said, " I am perfectly satisfied that there are good titles in which the origin cannot be shown by any deed or will; but then you must show something that is satisfactory to the mind of tho Court." In Loiv \. Morrison (14 Grant, 195), it was said, "A party seeking to establish a title by possession against a paper title, and thus to usurp the place of the rightful owner, and supplant him, must do so by clear evidence admitting of no reasonable doubt." See pages 56, 57, 58, 59, (inte. The owner of land, although out of possession, may bring his land under the Act, and obtain a certificate which will enable him to bring ejectment against a person in adverse possession. Murphy v. Mitchell, 4 W. W. and a'B. (L.) 13; and the application will not be stopped. Ex parte, 5 V. L. R. (L)5- Applicanfs title found satisfactory, certificate to issue. 5tf. The Registrar-General, on being satisfied of the applicant's title and of the due publication and service of all notices that he may think requisite, shall thereupon grant to the applicant a certificate for registration under this Act ; the original title deeds shall be retained by the ■;is 268 TIIK I'llOVINCE OK MANITOUA. i , ill Ile^iHtrar-(»r certifinite. fS!l. Every registered owner ot any land or interest therein sliall deliver to the Registrar-General a memoran- dum in writing of some post-ottico address (within the Province of ^lanitoba), to wh'ch it shall be sutlicient to mail all notices that, under this Act, may be required to be sent to sucli registered proprietor, and every registered proprietor or transferee of any registered interest shall, if required by the Registrar-deneral so to do, before the delivery of any certilicate of title, sign a receipt therefor in his own handwriting, or otherwise furnish the liegistrar- Geiieral with his signature so as to prevent fraud, as far as possible. Krerii rcfiistratio)!, on scpanite fiiJium (Did to hr pvopcrhi numbered. «0. Every registration of ownership shall be made du a separate folium of the Register, and upon any transfer of ownership the register of the transferror's title shall be cancelled, and the title of the transferee shall thereupon be entered upon a new folium ; and the Registrar-General shall note upon the Register of the title of the transferror lUK I'llOVINCK or MANITOBA. the number of tho ro^^'istci* of the tnitjHforoe'H title, ami upon tliat of tho tniunfc rce tho nuinhci- of rt'^istcr of tho triiiiHforror, ko that rcfcroiico ciin ho roiulily niiuh' from one to tho othir us ocouHion nuiy ro(iuiro. El'I'KCT or KKOISTUATION'. Titln oj vcijiHtcfctl oii'iii'i' to hi' Huhjcct to rerttiii iiiiplied qtiiilijiratioiis. ill, Tho liuul mentioned in iinycortilicato of litlo ^^riintcd under this Act, shall, by implication, and without any special mention in the cortilicate of title, unloHs tho con- trary he expressly declared, ho deemed to Ije suhject to : — licNcrrdtiontt in Croirn (jrnnt. {(i) Any suhsistins reservations contained in tho orif^inal grant of said land from tho Crown ; TaxcH, etc. (b) Any municipal charjics, rates or assessments not exceeding two years at the date of such certificate, or which may be thereafter imposed on the said land, or which have theretofore been imposed for local improvements and which are not then due and payable ; Edsciiiciits. (c) Any subsisting right of way or other casement, how- soever created upon, over or in respect to said land ; Lease not exceeding three years. (d) Any subsisting lease or agreement for a lease for u period not exceeding three years where there is actual occupation of said land under the samc^ ; TIIK IlKAIi J'UOPKHTY Al"T or IHSf). 271 , ami .f till' 111 one '"/ >}ieil ;viintiil lit any 10 coii- t to :— on filial uts not In- which v\\ hiivo .a which Int, how- ISC' for ii 16 actual l>((irt'8, etc. ((') Any (looivoH, onlvirs or cxcciitionH af^ainst or atTcctin;^ tho interests of tho rt'i^istcrcd owner in Kiieh hunl which may Ijo registered and maintained in force a^^ainst sneh re;;istered owner ; whilst hu so continu'-'S the registered owner ; Public lu;iliiv'.iiiri)j>ritiii(i)i. {{}) Any riyht of expropriation which may by statute ho vested in any person or body corporate ; From McCarthy Bill, section 72, Ac. of 1.SS4. Seo ante pa^es 60, 61, 62, 63, 64, 65. See also page 74 ante. " Unle^r. the contrary be expressly declared" this (,'ives pov.er to the owner of land, making an application to place the same under thti Act, to limit thi- implied covenants mentioned in the statute. In th>' [.and 'J'itles Act (pa','o 61) the words are: "but if the applicant desires tlu; certificate to declare tlv' title to be free from the said particidars, or any of them, his application shall so state, and the investigation shall proceed accordingly." (t) As to easements see ante G4. Certijicatc to be co)idusicc ccidoice of title — il.vccption. 152. ]'iVci-y certiiicate of title f^'ranted under tin's Act, when duly registered, shall (except in case of fraud wherein the rep;istered owner shall have participated or colluded) so long as the same remains in force and uncancelled under this Act, be conclusive evidence at law and in t^piity as against Her r\fajesty and all persons whomsoever, that the person named in such certificate is entitled to the land included in such certificate, for the estate or interest therein '^ m '■ < V ■ i l34 272 TMB pnoVINCR OK MANITOHA. speciUed, subject to tlic exceptions and rcHcrviitionH inon- tiotu'il in section (»1, cxcei)t ns fur as rej^ards any portion of land that may liy wroni^ description of houndarifs or pareels ho inchnh'd in such certilicate when the hohhn' of such ccsrtihcate is neither a purchaser or n»(U't;,'aj^ee for vakie, nor the transferee of a purchaser or niortj^'aKe-o for vahie, and exc(![)t as a^^ainst any person claiming' under any prior certilicato of titki granted un(h;r this Act in r(!si)ect of the same hind and for the purpose of this section, that p(.'rson shall ho doeinod to claim under a prior certilicato who is holder of, or whose claim is deriv<;d directly or in- directly from the person who was the holder of the earliest certiticat(! f^ranted, notwithstanding^ siudi certificate! nuiy have heen surrenderc.'d and a IU!W certificate ^,'ranted upon any transfer or dealing. 'J'aken in part from N. S, W. Amended Act, section .\o. It lias bten heki in Victoria (Australia), that this refers to the certificate retained by the Registrar and entere). but in a later case the Supreme ("nuit decided that a duplicate lease from the Crown was of exactly the same probative force as the lease retained and bound up by the Registrar (Etlcrslmnk v. The Qucin, 4 A. J R. Ij2). " A certificate of title granted in the Manitoba Act must refer to the one issued to the grantee, and not to the duplicat(;]|retaintd by the Registrar." Mr. a'Beckett thinks " in the word certificate the duplicate certificate is included, The expression ' certificate of title issuefl' is used ; the part kept by the Registrar is not strictly speaking issued at all, while the word is appropriate when the duplicate is included, and is used in that con- nection throughout the statute. See with regard to Registration Ai)stracts. When the part retained by the Registrar is intended as distinguished from the part gi^-en to the proprietor it is invariably alluded to as the ' Register iMook' or 'folium of the Register Book," while, when the context woukl apply ecpially well to cither part, the expression ' certificate of title' is used as here" (a'l.'eckett, loj). ticmh'e, a ce:tificnte of title is more efficacious than a Crown grant. {Alma Consuls G. M. Co. v. Alma Extnnlcd Co., 4 A. J. B. igo, igi). Fraud may vitiate the certificate. In McCahill v. }lciity, 4 V. L. R, (E.) 6S, Molesvvorth, J., questioned the sufficiency of the title of the person who had transferred to the registered proprietor, but considered THK IlKAI. I'llOIT.UTY ACT OF iHHf). •4 i If that thu provUionn nf thin noction preventml him from iliHpiitin»( thn validity of the certiticalf, whilf in thu y.imo case ha impliedly JKnored thu conriimivK cfffct of thd chtr, N. C. 60, the defend iiif in ejectment Houniit to shew tliat the certifuali' had heeii ihen, J., the certificate of title is merely an epitnim; of the prior title ; It is nothing in the (piestion of parcels ; Siiiall v. Ciliii, C V. L. H. (1".) 154, 157. When the plan on the margin of a certificate showed abuttals at each end on a street, and the y •«llnwrl to difiMni liy NhdwiiiK di.-it liu \\a< in iinccriitu Atel3 In Munm v. Sulhirlniul, which wan nn action fur mi'snc! profitn aftt-r an ejritment, fhn plan. tills pii» 111 their i«;rti(i(atfl of tillo to a mining Icasn; thrir l>.'in« m rt'(>TcniH to the«oiil in thi! cfrliiu atr, thiy also piil m liasc itself, which i mi^ht bu iniprachod, iliis (. . ^' iiinlor a niitKM's n^lit). I'""r arnuiiii'iits .is to the cuiicliisi 'rrtfcct of a cirlilicalo, see (hiiin V. Hiirvey, 1 V, L. H. (Iv) it ai^." a'MucKutt, p. 10 j. Aa to muisiiinii of' notirrH. 03* A purchuHcr or eni'uiul)niiii't'e for viiluiiblo coiiHi- (Icriitioii kIijiII not he iifTcctcd l)y tlu; omisHioii to hcikI any notice! l)ytliia Act directed to bo fjivcu oi" by the non-rccuipt thcrt'of. See ante pa^e 140, Ncction 93, " f^and Titles Act. " J iiHtrumv.nia viunt he r.iu-ciiti'd (ivcoriViutj to thin Art to Jic rulul. <( t. After tbc rofjiHtnition of th(! titU' to any land under tho provisions of this Act, no instruincint shall \)v etfectual to pasH any interest therein or to render sucli land liable as Hticurity for the payment of money as aj,'ainst any honafuU transferee of the said land under tiiis Act, unless such in trument bo executed in accordance with this Act, and be duly registered thereunder. See McCarthy Hill of 1S84, section 75. This provision is for tho purpose of preventing any instrument beinc valid that is not registereil according to the provisions of this Act, aficr the land has been brought under the Act. Sec. 70 and note thereto. t \ j|i III: TIIR nV.M. I'llOI'KUTY ACT OF 18H5. 27/ I'AHT VI. TUANHFKUS. Mi'inornnihim to he nvuli' ami irhat it mu«t contain. 11.1. Wlu'ii Iiitul miller tln! proviHions of tliirt Act, or any portion of sucli liiiid is iiitcjuliil to \n< triuiHfcrrt'd or iiuy ri;^lit-()f-wiiy or otlicr ('iis«!ini'iit in iiitciiilfd to \h\ cmitdd or t ninsfcrrt'd, the rcj^irttcrod owiior may •'xcciitc a int'inorandinn of traiisfur in tlio forni(!ontiuntd in Stdiod iln I) to thin Act, wliicli mcinorandinn hIuiII, for dcsciriptim of tlm land intcndt'cl to he doalt with, refer to tlu' rant >r certificatu of title of Huch land, or Hhall j^ivo hucIi aescriptio.i as may ho s'i'".i(M('nt to identify tlie Hame, and .shall I'KUt lin an accurato statement of the estate, interest, or easenuint intendotl to 1)0 transferred or created, and a memorandum of all leases, mortf;a(^(!H, and other encumhrances, to wliicli the numo may be subject; and sncdi transfer, if it be endorsed on the instrument evidencinj^ the title of the transferror, n<'ed not be executed in duplicate. Same as McCarthy Hill, 18S4. Sm; iintf. p i^os ,54, 35, ,\Ik 37, )H. Hy SL'ction ijj, "owner is to allow the use of his name in any action." See post and note. As to forin, see section 137; ami as to the mollification of form, see sub- sci'.tion 23 of section j, which says tii.it " whenever a form in the scheilule hereto IS directed to bo us'nI. such direction shall apply eijually to any form to the like effect siuneil Ijy the Kct^istrar-deneral, or which, for the same purpose, may be authorized under the provisions of this Act ; and any variation from such forms, not bein;; .» variation in matter or subst.ince, shall not affect their validity or regularity, but they may be used with such alterations as the character of the parties or the circumstance of the case may render necessaiy." As to the practice in Victoria of the use of forms not contained in the Act, see Liverpool Bank v. Turner, 4 Jurist, N. S. 150 ; Rff^. v. Taylor, 2 W. & W. L. 23. In one case in Australia the Commissioner allowed an ordinary conveyance by deed to be registered as a transfer, on being 270 THK PROVINCK OF MANITonA. <:ii 8-"i ■' If! •'. w ! 1 ' ; satisfic' tliat il liadbuen prepared in error and that considerable difficulty and expense would lie incurred in obtaining a transfer in the prescribed form. AccordiuR to Mr. Sedgwick, in transferring one of the inner houses of a terrace, tin; party-wall can bi; dealt with in the followin^j manner ; — Draw a plan on the transfer, coloring the land red up to the wall on each side. Run a line down the centre of th(? land on which each wall stands, 11 ioring on the one side blue and yellow, and on the other gieen and br'uvn. Transfer to the purchaser from the centre of one party-wali to tiie centre of another, together with the use and enjoyment of the outer half of each wall. Reserve to the transferror and the registered proprie- or for the time being of the land up to the centre of the wall to be trans- ferred to the purchaser, and make a similar reservation fur the benefit of the l;md on the other side. When eascmoit is to lie rnjoycd tritJi other hind. OO. Wlu'iiever any easement or any incorporeal riglit in or over any land under the provisionr, of tliis Act, is created for the purpjse of hcing annexed to or used and enjoyed tnrrethor with other land under the provisions of this Act, the Iiegistrar-Cient'rul shall also enter a memorial of the instrument creating? such easement or incorporeal right upon the folium of the IJegister liook, constituted hy the existing certificate of title of such other land. This is taken from section 77 of McCarthy Dill. See ante, pages 60, 61, 62, 63. :ii If the transfer is of the ithole or part of the huuhnentioncd in, the tri(nsi'er. 07. If the memorandum of transfer purports to transfer the whole or part of the transferror's interest in the land mentioned in any certificate of title, the transferror shall deliver up the certiticate of title of said land, and the llegistrar-General shall, when registering the transfer, enter in the register and on the duplicate certificate of title, ;;. memorandum cancelling the same, either wholly or partially, accordhig as the memorandum of transfer purports to THE nEAL propehty act of 1885. 277 tran.sfer tin; whole or part only of the interest of the trans- ferror in the land mentioned in such certiticato of title, and setting; forth the [)artieulars of the transfer. Diitif of Rriiintmr-Generul cancdliiKj certilicatc. tiH. The Re'rc(!d .igainst the registered proprietor by whom ihoy were ('lUere 1 into or created, care being takjn that purchasers for value are protected. " The above provision v.as r-ndercd necessajy in coTisequence of a decision of the Supreuie Court (since, howiiver, over-ruled), that neither contracts nor ecpiities couKl be enforced agiinsi the propriettn" even though the land still remained in liim as tlie rt;;;istered proprietor who had entered into or created such contracts or equities. " 4th. Power is given to the Registrar-General to place on the Register Book a person who has derived title through several unregist'Jied instru- ments, iiistrulnents which ought to have been registered in the usual oriler, but through some accident or negligence on the part of the persons interested, never actually were so registered. The Act of 1861 does not give such a power, and as the essential principle of the ' Torrens System ' is that no estate or interest passes e,\cept by registration, of course it follows, without special provision as above, that if A. being registered proprietor transfers to P.., but B. dies before being pL.ced in A.'s position on the Register Book, his representatives take nothing ; for B. being unregistered took no estate or interest, and therefore had nothing to transmit, and this might go on through all the letters of the alphabet. " 5th. The system of caveats is much extended and improved. "I do not think that I have anything further of importance to add ; and my views upon the entire subject of registration of title will be f(jund in my ' Memorandum ' in the Appendix to the Report of our Real Property p i ;l. , j I II' !■! ! i I ^ t=M''\ ii f ! 280 THR PROVINCE OP MANITOHA. Commission of 1873, presented in 1874 to both Houses of the Uritisli Parliament by command of Her Majesty. " 1 have, etc., " (SiRned) HENRY GAWLEK, " Harrister-at-Law of tho Middle Temple, and " Senior Solicitor to the Lands Titles Commissioners " of South Australia. " The Hon. the Attorney-General." PART VII. LEASES. Form of lease for term e.vcecdivp one year — Rifjht to jmrchase. by leasee — Obligation of lessor — Priiso: as to land encumbered. Tl. When any land subject to the provisions of this Act is intended to be leased or demised for a life or lives, or for any term of years exceeding one year, the owner shall execute a lease in the form contained in Schedule M to this Act, and every such instrument shall, for description of the land intended to be dealt with, refer to the certificate of title of the land, or shall give such other description as may be necessary to identify such land ; and a right for, or covenant by the lessee, to purchase the land therein described may be stipulated in such instrument, and in case the lessee pays the purchase money stipulated, and otherwise observes his covenants expressed and implied in such instrumjnt, the lessor shall be bound to execute a memorandum of transfer to such lessee of the said land, and to perform all necessary acts, by this Act prescribed, for the purpose of transferring land to the purchaser : Provided always, that no lease of mortgaged or encumbered laud shall be valid and binding against the mortgagee or .ti THE REAL PROI'KIITY ACT OF 1885. 281 encnmbrancce, unless such raortga^ee or oncumhmncee shall have consented to such lease prior to the same being registered. Covenant implied acfainat leasee. T3. In the memorandum of lease, unless a contrary in- tention appears therein, there shall bo implied the follow- ing covenants by the lessee, thut is to say: Payment of rent. (1.) That he will pay the rent thereby reserved at the times therein mentioned, and all rates and taxes which may be payable in respect of the demised pro[)erty during the continuance of the lease. To keep in repair. (2.) That he will at all times during the continuance of the said lease keep, and at the termination thereof, yield up, the demised property in good and tenantable repair, accidents and damage to buildings from fire, lightning, storm and tempest, and reasonable Wear and tear, excepted. Powers in favor of lessor. ¥ TIJ. In any memorandum of lease, unless a different intention appears therein, there shall also be implied the following powers in the lessor, that is to say : To inspect premises. (1.) That he may, by himself or his agents, enter upon the demised property and view the state of repair thereof, and may serve upon the lessee, or leave at his last or usual l)lace of abode, or upon the demised premises, a notice in writing of any defect, requiring him within a reasonable lime, to be therein mentioned, to repair the same. 282 THE PROVINCR OF MANITODA. To re-enter on ilefdidt, etc. (2.) Tliat in case the rent or any park tlicroof is in arrear for tlia Hpaco of two calcntlar months, or in case dcfanlt shall ho niadi! in tlio fiiliilnient of any covenant, whether exprossod or implied, in Huch lease on the part of the lessee, and shall he contimied for the space of six calendar months, or in case the repairs recpiircd hy such notice as aforesaid shall not have heen completed within the time therein specified, such lessor may enter upon and take possession of such demised premises. Duty of ReijxHh-nr in ease of re-cnlry. Tl. In any such case the llej^'istrar-General, upon proof to his satisfaction of lawful re-entry and recovery of possession, hy a lessor, shall note the same ty entry into the llefj;ister, and the estate of the lessee in such land shall thercnipon determine, hut without releasing; the lessee from his liahility in respect of the hreach of any covenant in such lease expressed or implied, and the lle^istrar- General shall cancel such lease if delivered up to him fur that purpose. Conditions implied in huise or niortfitoje under Act. T*5. Whenever in any lease or mortgage made under this Act, any of the forms of words in column one of the form contained in Schedule F. to this Act and distinguish- ed hy any numher therein are used, such lease or mo; ; f.^age shall he taken to have the same effect and he c • ■ \n'A as if there had heen inserted therein the fori/; . v'ords contained in column two of the same ScheciaJ..' 5 dis- tinguished by the same number; and every such form shall be deemed a covenant by the covenantor with the covenantees and bis transferees, binding the former and his heirs, executors, administrators and transferees, but it shall not m THK REAL I'UOrEUTY ACT OF 1885. 283 1)0 ncccHsary in any siieh leiiso to insert any Huch nunihcr. Tlicre nmy hv introduced ilito or aniicxnl to any of tho forms in tho tirst column any txprosscd oxceptions from or cxproHsed (lualiiicationrf tlioroof respectively, and tlio like exceptions or qualifications shall he taken to ho made from, or in corresponding forms in tho second cohuun. C'ttsf of mirrcmh'r tjlertcd othcnriiti' thmi hi/ opi-nition of Imr. TO. Whenever any lease or demise which is required to he ref^istered hy tho provisions of this Act is intended to ho surrenden.'d, and the surrender thereof is ellected otherwise than through the operation of a surriiuder in law, or than under the provisions of any law relating to hankrupt estates, there shall he endorsed upon such lease or counterpart thereof the word "surrendered," with the date of such surrender, and such endorsement shall ho signed hy tho lessee and the lessor as evidence of the accei)tance thereof, and shall he attested hy a witness, and the Registrar- General shall thereupon enter in the liegister a memorial recording the date of such surrender, and shall likewise endorse upon the lease a memorandum recording the fact of such entry having heen so made in the Kegister, and upon such entry having heen so made, the estate or interest of the lessee in such land shall vest in the lessor or in the person in whom, having regard to intervening circumstances, if any, the said laud would have vested if no such lease had ever heen executed, and production of such lease or counterpart hearing such endorsed memorandum, shall he sufficient evidence that such lease has heen so surrendered ; Provided, that no lease suhject to mortgage or encumhrance shall be surrendered without the consent of the mortgagee or encumbrancee. Taken from McCarthy Bill, 1884, section 88. section 82. See Victoria Act 11 il III ' 1 s I il; J 281 TIIK PROVINCK OF MANITOBA. PART VlII. MOllTOAaEH AND ENCrMItllANCKS. FitniiH of ni()rtii,'at,;o'^, si;e p.ino nS iiiili\ f\nd also 70, 71, 72, 73. Section H3 of the Victoria Act is worded dift'ercntiy from this section, and is as follows :—"Ti)o proprii'lor of any land under tlic opiTation of this Act may mortRa>;e the saint! by s:.,ninK a niorti^nRe iher ''f)f i'l the form," etc. Mr. a'Hpckctt says, " There is no provi^ion in the statute for repisterinK a sul)-inorfi;aK(;, and sucli a di-aliuR is usually efft'ctcj by an iinrcKisttTed instrunu'nt, the interest of the sub-inoi t^;aKei; beiiifj proteited by a caveat ; a second mortKa(,'e would be effected in the same form as a first mortt;a>;i!, whii h would bo referred to in the siiond as an incumbrance." in the Province of Ontario, it is dmibtful \\hi;lher :my ;idvant,ii;e would be gained by Huilding Societies acting as I-oan C'ompanies by this mode of procedure!. The evident object of taking an absolute transfer to the trustees is to bind the r.iernber to the rules of the Association. Under Dominion Statute of 1874, it is provided that mortgagors who shall borrow from Building Societies shall be bound by thi! rules without subscribing for them. In case o(* Terminating Huilduig Societies and otlur I'riendly Societies, it might be advantageous to adopt the course here referred to. See a'J5eckett, 134: "A mortgage to a Building Society is best effected under the statute by a contemporaneous deed under the general law con- verting the transfer into a niorlg.'ige, a form for which is given in the Appendix. The mortgagee should protect his interests by lodging a caveat. A suitable form will be found in the .\ppendix. Where a plainfift sues in ejectment as a mortgagee, he proves that he is such by producing a certifi- cate of title and a defeasance. Dilnncy v. Saitilhtirst liiiililiii/^ Society, 5 V. L. R. (L.) iS(j. Banks in this colony arc; in the habit of taking a letter of guarantee from a third person to secure the repayment of overdrafts and other advances to a customer ; if the customer be a proprietor of land under the Transfer of Land Statute, he not infrequently executes a mort- gage to his guarantor to indemnify him ag;unst loss.'' A very usual form of mortgage will be found in the Appendix. ]\J()rti)(ifie, etc., not to he n transfer. T.S. ^roi'tgage and encumbrance under this Act shall have eli'cct as security, but shall not operate as a transfer of the land thereby charged. A " mortgage" under the common law was a transfer of the land \\ith a proviso that the transfer should be void on payment of the money. If the money was not paid at the proper time the mortgagee held the land. 280 Tin: I'lioviNci; of manitdiia. iiJiii Hut the Chancellor sic'ppfd in, and said that a mortKaKo wainnly a scctirity, ani'r.\ hfld that iindiT ihr fji'nt^tal law a nLiitKn^re who ncieptH an ai-iiKriincnt of all the reiiiaininK iiit«'iest in a tnin of leaschoUl in liable for the payment of n nt and pt-rformance of f (h-htiiU hy wortfjaiior fn pni/ rnnnty .ffiircd, rtc, 711. Ill case default 1)1' made in i)ayintiiit of the j)i'iiuMj)al Htiiii, iutorest, ammity or rent clinrj^'e, or any part tliereof, thereby Hcoured, or in tlio ol)Hervan(H' of any oovtMiant expressed in any nieinorandinn of niortf^a^i; or onciiinhranco re.'^istt'rud under this Act, or tliat is herein dechired to bo implijul in such instrument, and such default bt* continued for the space of one ealetidar month, or for such lonj^er period of time nsmay therein for that purjiose be expressly limited, the morlt;ii;4ee or eiiciimbraneee may i^ive to the iii cxrrittur <>r >i>iminiilrMlor of tli« moriunKor, or Ml lb* nHAiritiRi' of hii innolvrni trntati', will not ba Kiitticitttit iitilcn<* •«ii< )i vMOttlOf or iidminlHtrnior or ttnui^nen hni liovn rr^mtnrol, or uiiliti( ■■, hilt whnra Ihars in a luicond nioriKdKit it wouM In; ah wi'll to mrvv iiniiitt on the l;inriK iKor cnnnot l>« loiind, thi* fiafi) cnnma woiil'l l»' to olit.iin n uniir.tl on Hiiininary application t.x pnrlf iiiav clirect," A form ot nntictt iisi<>| in Ansir^ilia will tin found in till! Apptiiilix. " VVli'Mc (111 difault ')f payniuntof inter«"4t tlm niortK^Kfn lias the option of r»*i|iiirin)^ hy tin; noliro payiiu'ti of tlir prini ip.-ii and iiiti-ii st, or of iiitorcNt only, a notici! is dufectivi! wIik li dors \vH chsimtily cxcniso tlit; option. McDoHiiltl V. Rowe, 3 \. J. U. i) >. S,'mhli\ when the time for payment of till! prim ipal has not ariivod, hut ilrfaiilt has hem niadi-iii paviiiont of the iiiti-Tfsl, a notice to pay inturi'st only will Hiillice, and tlio iiinrlKaKoo may tiicti prnciicd to soil for hotli principal and intorust. Tliu iiioitKaKi^i! will not lit! inti'rfcrod with in tlu! exercise of his power of siale, unless an ofler has hern mad') to him of lioih priii'-ipal and iiittirtst, notwithstandinji that the principal is not due. Ilirv.y v. Itif^in, 5 W. W, & a'U., (M) U5. " l-'or a c.asu where inortKanecii were restrained from transferring lanch until aftir the proper notice. See McDonahl v. Ri.ivi-. 3 A. J. K. ijo, Tho power of j^iviii^' notice may hu exercised hy .111 a^eiit, and si-inhle, it is sulli- cient if notice in f.act re.iches the inorti})licotion tlicri'oj'. NO. After such (Icfiiull, in paytuont or in the obHorvance of coveiKiiitrf contiiniini^ for tlic furtlicr spuct! of oni calendar month fron? tlio dato of hucIj notice, or for such period aH to th(! Ilooistrar-Gcnoral may Hcom moiit, hucIi mortfTaooc or incinui)raucco is horohy authori/cd and em- powered to sell the land so mortgaf,'ed or encumhered, or TSB nKAf. I'liofKlirv An oi iNHfi. 2A0 iiiiv putt tliiTi'of, mill III! tliiit'Htiito lit' intori'Kt tli<>r«'ii) of tliti iiiDrt^iii^or or iMicitiiiliruiiccr, iiti*l citlicr iilto^. .itor or in lotK, l)y piililic liiii'tioti or l>y private; foittruct, or liotli siicli iiioiIch of Hiilc, mill Hiil»j(>rt lo Hiii'li coiKlitioiiH lis he limy thiiiK tit, mil>y mitliori/.i'il hIiuII !>•> iih viilid uiul I'lTcctiinl uh if tlio iiinrt,%Mi- f^or or itiKMiiiilH'uiii'ir liu rt'ci'ivi'd : mid no sucji )iiii'cliusi'r hIiuII Ik* mi'-wcrul)!!' for till' loss, iiiisapplicutiuii or iion-upplicution, or ho olilii'cd to Ht't to tile upplii'ution of the piiridmso ntoufy l)y liini paid, nor sliull he Iir olilij^'t'd to iii<|uir(! us to tlif fuct of uny dcfuult or notice liiivin;,' licni nuidi or ;;ivi'n us iiforcsuid, or liow till' purcliusc iiioiu'V to urisc front tlio sulo of uny su(di lund, (stuto or interist siiull lie upplinl ; but siicli purcliiiHc inoiii'y sliull I)l' upplicil : lirslly, in i)uyin<)nt of tlnj ('\ponHos occusioiifd l)y sucii sale; Si'condly, in puynitMit of tlu! inoni'ys wliidi inuy tlKii hr due or owin;^ to the niorti^ii- ' (.f lanil utuli.'r tliis power is hail if tlio land be soKl toi^L'tiu-r with other land in niortKaue from the same luorti^a^or under the general law hy one contract an 1 at on ; price : Kuss V. The Vi,tuii,in ]\iiii,nhiil liuilJiif; Siuiftv, S \'. L. K. (M) _'54 ; and •2i)() I'lll'; I'llOVINCK OK MANITdllA. ilMlil' si-iiil>li\ iH\ a salo liv lino ii)()rtnaj;r<' nf si-vcial mnrlK.iiv"* from niu! mort- K.>K'>r, all iiinlcr tlii« Act, si'ii.irato ami disiiiu t s.iUs wmil i also lio necessary lUit it is siilimiitrfi,'aKts l)tit this ilorsnot a|i|) t li h is hrcn lii'lil, in that folDiiy, that tlu'ro can Ix; no lonH.losiiro suit rcspc( tiiiK lainl iMulci tlu! Statute, ilio piucL'ilnii! (loscrilH'il hy s ciion <)S, Vuiorn Act, imist bn strictly followed : (irfit;; v Wiitsmi, \' I.. K {I'.) ji). I'loliihly nndtr section 1 1 j of M.initohi Act, the conits hue sudiiiiiit power to foreclose a niortK,i>;e in tin- or.liiiarv w.i , even it th ■ 1 in I is under tho operation of the Ait. "This section appears to ii^e to valiil ite eonti.u Is, not meieh- convi-y- ances or trae- feis where re^;istered under the Act. and to protect lonir.ietors knowint; notlunn to ini]>ni;n the s.de when ci>ntractinn, I'er Moies'\orth, [., ill M'Doiiald V. Rou'v, 3 A.J. K ()o. The elle.t of this sictioii uas dist nssed, and Mr. Jiistic-e Molesworili expressed some doiilit as to tiio coircctiiess of his decision in Sl'Dciuild v. linu'r, in tile c.is" of A'h.sn v. T/ir V'litoriil l\-niuiiu-nt liuilii'nii^ .SeriV/i', X \'. I. I^ (I'',) 23.), 2(15 ( >ii appe d to the full court the Chief [iistice dt^scrihed the irr. H\, Upon the r(?c;istration of iviiy memoriindiiin ov instrimuMit of transfer executed by a mortgagee or encuin- h i Till", ItKAI, riCOI'KUI'Y ACT Ol' 1 HH.'). 21)1 l)nin('c(!, for (Ik! purpose ol" Hiich Hale, as iiforcHiiid, tlic cHtato or interest of Iho juort^'ii^or or ()M(!Uinl)raiici'r therein (loHcribeil an t.o Ixs convened, shall pass to and rest in tho purchaser, free(l and disehar<^'ed from all liability on atuiount of Hueh niorti^a^^e or encinnhranet! <»r any inortf^af^e or encninhrancc! ref^isterod, suhseipient thereto; and tlio purehaser whaU he entithul to ree.tjivo a tx-rtilicate for thu same. Taken from McCarlliy Hill, siictioii ij j , aiul S(jiitli Auslialian Act.sccliuii S--, ; similar alsu to Victoria Act, section S7. S' (! a'Hiickt'tt t,]'<. Nij interest passes to the [uirchaser until rcKistiation ; XulidiKi! Ihiiik of Aiislniliisiii V. Hiind-iii-IliiiKi Co., .( App. ('ases, 391, 40;, (i'rivy Conncil). i'lii! policy of the Act is to j;ive security to transfeiees wIkjsi; titles are comjileti'd l)y issue of new certificates whrn the lu-w ici-HJIkiIi-s issue, not bifori' : London Cliiirtcrt-d Hank of Austr, .ukI see llickhttm v. The Queen. 8 V. L. K. (li.) -^50. I.cuxc uKiij he siirrciidrrcd hi/ (tH.^iifincr and less Cf. in the lluctioa pri'ul's I or ot 1 I'oiiiu lie };iven li;^v)r or H*2» U[ton any aHsif^nnnoiit heiiiK niadti by any Ichhoo for the benefit of liia creditors, the ilof^istrar-Cioneral, unless th(! land bt; subject to a inort<^'a;^'(! or encuinbraneti iindor the provisions of this Act, shall, upon the application in writiuf^ of the lessor, accompanied by a statement, in wi'itiuf^ sii^ned by the assij^nee or trustee inider such assi^^'uinent, (•ertifyin;j[ his refusal to accept such lease;, or shall, u[)on the order of th ourt on the ai)i)lication of the lessor, enter in the Ke^^ister a note of such refusal or order, and sucli entry shall op(;rate as a surrender of such lease. T.iken from McCarthy iHill, section ().), which is similar to section 75 of N. S. W. Marti/'iffre or encKmhrdiiccr luni/ imihi' (ippUiuttion to rdin'cl Im or hcuui- .s;$. Upon any assignment for the benefit of his creditors being made by any lessee or owner of any land registered, where the land is subject to mortgage or encumbrance, the 202 TUK TROVINCR OF MANITOIJ.V. Kof^istrar-fTeneral shiil!, upon the applicutioii in writing of the inortfTaj^oG or (niciunhraiKuu', accoininmicd l»y a state- ment in writinp; sij^ned hy the assij^Miee or trustee of Kiu-h lessee or owner, eertifvinj^ his refusal to accept such lease, enter in tlie IJe^ister Jioi)k a note of such application and refusal, and such entry shall vest the interest of the lessee in such lease, in such mort^'ii^ee or iiu-unihrancee ; and if such ni()rt}^'a,{,'ee or iucutnhraucee shall nef^lect or decline to make such application as aforesaid, the lu'^istrar-General, upon ai)plication by the lessor, and proof of such neglect or refusal, and of the matters aforesaid, shall enter in the Kef:;ister Jk)ok notice of such ne}j;lect or refusal of such assi<;nei* to accept such lease, and such entry shall operate as a surrendci' of such lease. TaliL'ii from section 95, McCarthy liill, which was taken from S. A. Act, ji). Sections 82 and S ; will be nl nse when an Insolvency Bill is j>assed by the Dominion of C'anada. In tlie meantime, in case theri' is actual insolvency to trustees, as in Ontario at present, these sections will he available for all land under the optM;,Ttion of this Act. JJisch may rociuire ; and upon such entry being so made, the land or the estsitc ■TV TIIK UKAL I'llorKUTY ACT OF IHH"). or intorost in, or tlic portion of the land mentionod or referred to in hucIi endorsetuent us aforesaid, shall cease to bo Huhject to or liable for sucli principal sum or annuity, (or, (itf tlir cdsr inati hr,) for the part thereof noted in such entry as disehar};ed. Same as McCarthy Bill, section ijn, taken fnim S. A. Act, stction 59. The printer has maile a mistake, .iinl the proof reader tlid tint fuvl it out, when they printed the statute to re.id " ii( on jiroofof the.sd/i' " — it oii|,'littO he " upon proof of the s itisf.iction of all moneys, ' ';tc. See iiiitr, j);if,'es 77, 78, notes to " Land Titles Act." In Austr.ilia, where there is .1 duplicate morti;a^;e, the Refjistrar will not make an entry in the register book until sucli duplicate has been lod^;e 1 at the Office of Titles. Sedg. 59. Death of (tinniitdiit or rrssntinn of riicunihrdnci' — Eiitr;/ — Ttn cjI'iH't — Jiciii.'itnir'n duti/. ^^^>. Upon proof of the death of the annuitant, or of tlie occurrence of the event or circumstance upon which, in accordance with the provisions of any memorandum of encumbrance, the anntnty 01 sum of mcney thereby secured shall cease to be payable, and upon proof that all arrears of the said annuity and interest or money have been paid, satisiied, or discharged, the lle.gistrar-General shall make an entry in the llegister Book, noting that such annuity or sum of money is satisfied and discharged, and shall cancel such instrument ; and upon such entry being made, the land shall cease to be subject to or liable for such annuity or sum of money, and the Hegistrar-General shall, in any or either such case as aforesaitl endorse on the grant, certili- cate of title, or other instrument evidencing the title of the mortgagor or encumbrancer to the land mortgaged or encumbered, a memorandum of the date on which such entry as aforesaid was made liy him in the Kegister 13ook, whenever such grant, certificate of title, or other instru- ment is presented to him for that purpose. From McCarthy Bill (1884), section 97, taken from S. A. Act, s^ection Go. i *! ,£XK ^^^^ " ^H '^^1 41 ^^Bi i m !'l 294 THE rUOVINCE OP MANITOHA. i 1:4 '- il Payment to Provincial Trcasurrr aUon-rd if no prrmin in Province to receive niortijiUie money — Receipt — Entry of (liHcliariie. Hii, If any raortf^afjor l)ecomc8 entitled to pay oft* the mortgiif^e money, and the rej^isterod inortgaf^ce is absent from this Province, and there is no person anthorized hy registered power of attorney to give a receipt to tlie moit- gagor for the mortgage money after the date appointed for the redemption of any mortgnge, it shall be hnvfnl for the treasurer of this Province to receive such mortgage money with all arrears of interest then due thereon, in trust for the mortgagee or other person entitled thereto, and there- upon the interest upon such mortgage shall cease to run or accrue, and the Registrar-General shall, upon presentation of the receipt of the said Treasurer, for the amount of the said mortgage money and interest, and upon proof being raade to his satisfaction that such payment satisiies all moneys duo and owing upon such mortgage, shall cause an entry to l)c made in the Piegister discharging such mortgage, stating the day and hour on which such entry is made and such entry shall be a valid discharge for such mortgage and shall have the same force and eti'ect as is hereinbefore given to a like entry when made upon production of the memorandum of mortgage with the receipt of the mortgagee, and the Piegistrar-General shall endorse on the certificate of title, or other instrument as aforesaid, and also on the memorandum of mortgage, whenever those instruments shall be brought to him for that purpose, the several particulars hereinbefore directed to be endorsed upon each of such instruments respectively. Similar to section 98, McCarthy Bill, except in said Bill there is a proviso "that after payment as aforesaid of any mortgage money and interest, the mortgagee untitled thereto shall not recover from the Treasurer of the Province any further sum in respect to such mortgage than the amount so paid to such Treasurer." Similar to S. A. Act, section 61. TllK UHAL I'UOl'KllTY ACT OF 188'). 2!»5 'rniiiti/rr ()/ iHitrtifiKfCH, rtc. ST. ^[ort^'!i<^('S, cnciiinhrfuiccr. and least's may l)i' trana- fciTcd l)y a transt'er t'xecuted in tlic foriu contained in Si'hi'duUi A to this Act. Tlio transfer must be re'jjis- tered in tlie manner liereinbefore set forth, and transferees shall liave priorily, accordinjj; to the date and time of rej);istration. And any m()rtj,'a.<;eo may transfer a part of tile sum secured by the mort}:ja^^e by a transfer execu'ed in the form of Schedule B to this Act, and the part so transferred shall continue to be secured by the mortgaj/o, and may i)e };iven [iriority over the remainin.L,' part, or may be deferred ; or may contimie to rank ecpially with it under the security e'" 'le original mortgaj^te, as may be stated in the instrunu lit of translVn- ; n\u\ ilie licj^istrar shall enter on the certiiicate of title a memorial of the amount of the nK)rtjj;a|fe so transferred, the name of the transferee, and )i()\v the sum so transferred is to rank, and shall notify the mort'jfa<'or of the facts. fgasee, tificate )n the Iments teveral each pre IS a Ley and j-easurer Ihan the lei. riaine as McCanliy 1-lill, sictiun 99. Similar to S. .\. .\ct, s..ction 63. See " L 111(1 Titles Vet,' iiiitc, section 43, pa;,'(;s 8S, 89, also paf,'e 95 ante. A form of transfer to uses will bu found in the .\ppcndix. ElJ'ecl of rciiifitratioN of (raitsjcrs. SH. Upon -he registration of any transfer of any mort- gage, encumbrance or lease, the estate or interest of the transferror, as set forth in such instrument, with all rights, l)0wer8 iind privileges thereto belonging or appertaining, shall pass to the transferee, and such transferee shall thereupon become subject to and liable for all and every the same requirements and liabilities to which he would have been subject and liable if named in such instrument i: :! ■ lip I? 296 Tin: I'llOVINCK OK MANITOHA. ori;,'iniilly hh inortf^iif^t'c, encunihnimieo or leasee of such land, cHtiitc! or iiitorcst. Same as Mc.fartl)^ Hill, section roo, ami N. S. W. 47. When transferee takes in a liliiciiry capacity lie will be treated as special owner under section 44, sub-sectiun 6. Iti'lhts of trdiiHj'i'ric — Proritio. Hii, iiy virtue of every such transfer the rij^ht to sue upon any niort|j;aj^e or other instriinuuil, and to recover any debt, sum of nioncsy, annuity or daniaj^e thereunder (notwithstandiu},' the same may be deemed or hehl to con- stitute a clidsr ill iirtioii), and all interest at the tinu' of Buch transfer in any such delH, sum of money, annuity or dama^t's, shall be transferred ho as to vest the same in law in the transferee thereof; Provided always that nothing herein contained shall prevent the court from givinj^ ell'ect to tiny trusts fiU'ectinj:; the said debt, sum of nioiujy, annuity or damages, in case the said transferee shall hold the same as trustee for any other person. Taken from McCarthy Bill, section loi and S. A. Act, 64. See tiiiti- section 88. Un.li^r the law in the Province of Ontario, choscs in action may be transferred. Transferees holdinR in filuciary capacity will l)e treated as special owners. Tiiiplicd covenant, hij inorUitKjor. 00. In every memorandum of mortgage there shall be implied against the mortgagor remainnig in possession, a covenant that he will repair and keep in repair all build- ings or other improvements erected and made upon the land, and that the mortgagee may at all convenient times, until such mortgage be redeemed, be at liberty, with or without such assistants as he may see fit to employ, to enter upon such land to view and nispect the state of repairs of such buildings or improvements. McCarthy Bill, 102. S. A. 62. Victoria Act. 90. See Land Titles Act, section 27, pages ante 72, 73. TlIK IIK.VL I'UUl'KUTY ACT OK 18H5. 21)7 'ill I'AllT I\. I'OWDUH OF ATTOUN'KY. To he iii/oi'iii If ()/ Scheiliili' — lirnintriition. 111. Till' roi^istfri'd proijrietor of any lainl, estate or intei'est iintU'r the proviHionsof tliin Act may autliori/e and appoint any person to act lor him or f)n hia hehalf in rcH[)ect of the transfer or otiier dealiuj,' witli such hind, estate or interest, in accordance with the provisions of this Act, hy t'xecutinj^ a power of attorney in any form heretofore in use for tile liki,' i)urpose, or in the form contained in Sche- dule II to this Act or as near tiiereto as circumstances will permit, and a dui)licato or att(isted copy thereof shall he deposited with the liegistrar-General, who shall enter in the liogister i3ook a memorandum of the particulars therein contained and the date and hoar and minute it is deposited with him. JievocatioH : how cj'actcd. 1>2. Any such power of attorney may be revoked by a revocation in the form contained in Schedule I to this Act, and after the re<:fistration of any revocation of a power the Registrar-General shall not give etl'ect to any transfer or other instrument signed pursuant to such power unless it appears upon any certificate granted previous to such regis- tration and outstanding at the time. S une as sections 103, 104, McC'arthy Bill, ami South Austr.ilia, 69 & 74. An express authority is required tu enable an attorney under power to consent on behalf of his mortgagee to a lease under section 71. " If a mortgagee require power to lease the mortgage land, the mortga- gor must execute a power of attorney to enable him to do so, which will be registered. Such a power might be inserted in the mortgage, which could be executed in duplicate and one copy filed as a power of attorney." a Beckett, 168. Ill ' 1 1 ■ P f • i ■ 1 i { ] -, 1 ' , ; i ! • ! 21)8 TlIK I'UOVINlE OF MANITOBA. " Whrn the rfnistcrcl picprii'tdr is rt'^janleil by tho OfTui^ of Titlt-s as a ' S|ie(.i.'il OwiiiT ' uiiilcr section 44. siib-srction (>, (srv- imtes) a dealing signed by his attorney (whether coiistitutitl by a power 111 tlu' form pre- scribed ill the Scliediili! !I to this Act or by a Kfiural |)o\vci) will not be registered unless the sij^iiinn can hv. shown to be imn-ly such a ministerial act as may bo lawfully (lilt!|;:itci'. l-'nr instance, if the ntRistcred pro|)rittor were known to the ollico to be a trustte for sale, a transfer signed by his attorney would not bo registered unless it coull be shown that the sale hail been acturdly made, or its terms hatl bien settled by the reRistcicil proprietor in person, and consecpientlv that the sl^,'nin^,' of tlie iraiisler by his attorney was only a miiiistiTial act." Sedfj. 71, " All instiimieiit siyncd befmc ri.'>iistration of a revocaliun, but lodged after such rcvocalinii. will not Ix: reKisteieil." Sedy. 71. PAllT X. llKdlSTItATlUN AJiSTJlAt'T. Jlcjlistmv to ijrunt dhstntrt to cimlilc oinirr to dml icitli hnul irlicn out of I'rorinci:. Uli. The Reji^istrar-GGnoriil, u[)on tlicj application of any registered pro])rietor of land siil)je(rt to this Act, shall grant to 8uch i)roprietor a r(!gistration ahstract in the form con- tained in Schedule K to this Act, enabling him to transfer or otherwise deal with his land at any place without the limits of this Province, and shall at the same time enter in the lU.'gister JJook a memorandum recording the issue of such registratiini abstract, and shall endorse; on the certifi- cate of title or other instrument evidencing the title of such applicant proprietor, a like memorandum ; and after the issuing of such registration abstract no transfer or other dealing in any way effecting the land in respect of which such registration abstract is issued shall be entered in the llegiater Book until such abstract shall have been surren- dered to the Registrar to be cancelled, or the loss or destruc- THK IlKAI. PIIOI'KHTY ACT OF iHHr). ±)\) tion of Huc'h alistraet has heon provt'U to liin satisfaction, uihl llic time tlicrein limited for its iliiratiou shall have expired. Taken from McCnrlhy Hill, u)j, from S. A. Act, 71. Hy till) V'ictori.i Act rin exception is m.-nio (section 121) in favour of the colonial cruilitois. The otfcct of thnt cxfcptinn will pniliahly ilcttT ptTsims ahiDal from dealing? with tlu; owruT on thr f.i th of tin.' ;ibstract, anil so ilestmy its valm;. Ity tin? oiuissinn of this (laust; on tin- nlhcr h.i' 1 a fiaiiliilcnt owner of laiuls in Manitoba may obtain a ri-^'istratinn abstract ami le uc the Frovincc, setting his creditors at iletianco, iiotwithstainlinn actions for the recovery of their debt* may havi; biHMi in an advanced stage, Modaoj' lU'albnj with liiiid intdfr f such instrument h('in<.^ ('iitered upon the registration abstract and autlienticat>'d hy the signature of such autiiori/ed person as aforesaid in manner therein directed hy the entry of memt)rials in the Ke^'istor Book, such instrument shall h(! held to \w rej^istered, and such transferor other dealing shall he as valid and hinding as if the same had heen entered in the Jiegister Hook hy the Hegistrar ; and whenever a memorial of any nislni- ment which has not heen endorsed upon the instnunent evidencing the title to the estate or interest intended to he dealt with, has he(.'n entered upon the registration al)stract, such authorized person as aforesaid shall record a like memorial on the duplicate certiticate of title, lease or other instrument, evidencing title, as aforesaid, and the certifi- cate of registration endorsed on the instrument of which iti I 1 I* il :io{) Tin; I'UoviNci: of MANiroiiA. tlio mcinoriiil has hwn ho ciitiTcd uiiil si|»ii('(l l)y Hiicli uiit)ii)i'i/.(>(l piii'H Ml 1111(1 si'ilI*m1 Willi his sciil of olVico, hIiiiII bo ri'ccivi'd ill iiU'coiirts of law or ciiuitv as coiiclusivi' ovididico that siKdi iiiHtniiinMit lias bceti duly r»'^,'iHtl'|•l!d. Ihilii nf liiiiiHtriii'-dfiin'iil (III (lilirrni »1. Hpoii tilt! dcliviiiT of any rci^'istralioii abstract to tliu IUi;^istrar-(u.'m,'ral, \w Hliall rrcoril in tlu' rr^jiHti'r in Htich manner as to prcsiirvo tlniir i)riority, tlm particulars of every transfer or other (h^aliiif^', recorded therein, and shall lilc in his olVice (hi[)licates of every nienioranduin of trans- fer or other instrument executed tiiereunder wliiidi may for that puri)()se Ih! delivered to liim, and shall cancel such abstract and note the fact of such cancellation in the Ueyister l5oolv, and if the whole interest of tie; transferror in Hueli land or in any part thereof be transferred, the certificate of title shall be dcdivered u[) to the Itej^istrar- Genttral, who shall thereupon proceed as is hereinbefor(3 directed for the case of an al'SoluN' transfer. i ^, ! l^fiirinio)! ill ciisi' iihutnict lost, rtr,, fltt* Upon proof at any time to the satisfaction of the Registrar-CTeneral that any ref;istration abstract is lost or so obliterated as to be useless, and that the rii^hts and powers th(!reby ^ivea have never been exercised ; that the time limited by sucli abstract for e\<;rcisinjj; the rights thereby conferred has exjjired ; then, ui)on proof of the severa] matters and things, if any, that have been done thereunder, it shall be lawful for the Eegistrar-tieneral, as circumstances may require, either to issue a new registra- tion abstract, or to direct such entries to be made in the Register, or such other matter or thing to be done, as might have been made or done if no such loss or obliteration had taken place. I TIIK UKAI. I'UOI'KinV ACT i)| IHS.I. MOl I'Akr \i. TIIANSMIHHIONM. LiiihI iif ilt'iU'iiHi'il nifinr to fcut in jiithdihiI i iftn'Hvtitntirr ond til lie rc'i'inlrriil an oinicr Iloiv fiiiixli'i'fi} /'"/// <;/* liiiliHtntr — I'roriHi) nn to il itr nt' tithi - l^rovino nn to I'crti limit'. 1>7. Wlioiicvor the owiu'i' of any liimls dies Iciiviiij^ a will, Hucli liinds shall, subjoct to tlit? provisions of this Act, vost in the pi'i'soiiiil rtsprcscntativi' of tho di'coasi'il uwiin-, and till) executor, or adininiHtrator, shall, het'nre dciilinj^ with tlu! lands, make appliciation in writing,' to the Kej^istrai'- (leneral to he re<^istered as owner, and sliall pi-oduec to tho lle^^istrar-deneral the proltfite of the will of the deceased owner, or letters of administration, or the order of tho eourt authori/iinj^ him to administ(U' tho estate of tlie deceased owner, or an ol'licc copy of the said prohato, hitters of admin- istration, or order, as the case may he, and thereupon tho l{ej;istrar-(ieneral shall enter in the Uci^'istera memorial of the date of tho will and of the i)rohatu, or of the lott.'rs of administration, or order of the coin'i as aforesaiil, the date, hour and miunti! of the production of the same to him, the date of the death of such owner, when the same can ho ascertained, with such other i)articulars as hi- may deem necessary, and upon such entry hein;^ uhkK'. the cxei-utor or administrator, as the case may hi', shall he (h:euu'il to lie the owner of such lands, and the llej^ustrar-donoral shall note the fact of such re;.;islrati()n by memorandum under his hand on the prohati; of tho will, letters of administi'a- tion, order, or other instrument as aforesaid : I'rovided always, that the title of the executor or administrator to such land, shall relate back and take eifect as from the date of the death of the deceased owner, i'rovided also, that I i 1 I m ncn THP PnoVfNrK OK MANITOIU. t)io (lupliciilti ('« rtiliciiiu of titli) ^ruiitoil to tlio (IccDiiHcd owner hIiiiII lie (|(>livi>t'<>(l up to ho ciuicxIIimI, aiiii tlir ll('l{iKtnii'-(ii'ii('nil hIiiiII {hhuo to tlio oxooiitor or iiilniiniH- triitor a UvhU (■•>rtilicat(* of titU; Htatiii^ tliorcii) tlo! fact that tht) new rc^inti red owner is the executor or aliniiUHtrator. ^ ('(impiirn rnri {il, .'< limit n ami a iinl iiotos ttioroon, paKo* '33, 340 tiiili'. This noction liiyn iliwii ilio piocivliiro for carryinx into uflect iho con- vcrHion of frouhold <*stntcii into chatlflU real, and lit tho iiint timu »uch a nynUnn huH Iuhmi .nloptecl by iiny ('aii.nli.-xn l.iiKi-ilittiri?. Thorn ia i:vi< iIki adniinis- tratornf an intestato as well as the executor under n will. If the certificatuof title b«! lost a now one may bo procured under section litj.pusl. Mortjiitiii', rlc, trniiHiiiitfnl hif trill or iiitrHtarif — lirjiiHtra- tiiiii til' juraiinitl rvprrni utiitirr (tx oiriirr — Ilotr r(f'rctril — Kjl'rrt thrrroj'. 1^^i. Wlionever niiy iunrtoaj;e, euciiMiliranco or Unxno alTecitiu^; laud rej^istered under this Act is transmitted in c()nH(!(|U0U(M! of the will or intestac-y of the owner thereof, prohate, or an olHco copy of the will of the deceased owner, or letti'rs of udiuiuistratiou, or tho order of the court iiuthori/iii;^ a person as aforesaid to adniinister the estate of the (leceas(ul owner, accompanied hy an application in writiufj; from the executor, or administrator, cliiimin;; to be reoistered as owner in respect of such estate or interest, shall ho produced to tlie lli.' Icttrrrt of Milniinistnitioii, or orilii* of tlu* coiii't t\n rifoi'o> Hiiid, the (lilt*' iiml lioiir of llir proiliirtioii of tiin nuiiu* to liiii), till* tliitt' of tile ilciillt of siifli owiicr, wIk'Ii tlx' hiiiiio (■an ItiMiHci rtiiiiKMl, with hui;)i other iMirticiihirH to h*> umy (U'fiii nccoMsiiiv, aii'l U[ioii Hiich uiitry hiin;^ inii(h>, the oxoctitor, or inhiiiiiistnitor, um the ciiHt' iniiy h<>, nhiill lie th-i'iin'il to hi! thf owmr of Hiirh Miort^^iii^f, ciiciiiiihriiiico, or luHHu, iinil tho Uf>{iHtnu'-(ii>ii(>riil Hhiill note th(> fact of Hiich n '^iHti'iitinii hy iiii'iiiiinnnhiiii iiiith-r hJH hiiiul on tht> U'tti'rs of iiihiiiiiistnitii)ii, pi-ohuic. oi' otht-i' insti-iiiiiiiit us iiforcHiiiil. Itfd ill I'TCof, Iwncr, court Icstato [oil in H'Tl'St, shall imcnt lease or of AHHiiint'i' or tfUHti'' I'litilhd Id /;«• ri'iiiHti'i'i'il iiH ownrr. 1MI. I'pon any asHi^nment hcinj^ ni.nh' hy the roKiwiered owner of liny himl, for tie- liiiidit of liis creditors, th(^ iis.sij^nee or trns't'i! of Hueh jtcrHon shall l)e eiilitlcd to he rcj^'isteretl an owner in rcHpcct of ihe same, and the lle^^'isfar- (u'lieral, upon ri'et!ii)t of an otVu'e copy of the appoiiitnifnt of such aHsi;^iiee or truHtee, or such other evideiKic of the ;i|)pointnient of su(di assi;j;neeor trnntee an may \w required l)y the law for the time h. iiii,', ^^llall enter in tiic lle^dster a memorandum notifying the appointment of Hueh aHsij^nee or trustee, and upon sucli entry hi'in^; mad*', sueh iissij^Miee or trustee shall h.) dfciu 'd ami taken to lie t!u' ownrr of HUidi land and a eertilicato of title shall be issued in his favor. ("ntnpari; laivl Title .\i:t, pn/,cs i)6,ij-;,tinli\ aii'l M.mimb.i Act, pnno -'Ot, Slii'ukl the onic' of Titles liavu notice by cavoat that ihi; (liiplii aii; certificate is huhl by an f(iiiitablo mdrtnauct,', the assignee or irustcowili be le^^istcicd as proprietor (iiwiicri iiiili.'i this section, but no deaUnj; with him will III! allowed until h ■ sh.ill havi^ lo.l^eil xh '. iliiplii.ito in tin; oltii;«;. SoiiR, 67. r.ut sec Patchi'll v M,niiiscll. 7 V. I.. K. (l.) o. " Tlu! assi^nitc or trusti".' when ni^istrie.l will be icj,'ar.U'i! as a 'special owner.' SiiiihU-. their is nothint,' in the Transfer of liin.l Statute ciirectiiiR the commissioner to act on notice of insolvency, it only enables the assij>nce to have his tith- enteieil. Where an order nisi for secjuestra- tijn was nude and notice tluteof was givjn to the Ke^i.trar of Titles, but 304 THK I'Uovincp: or." manitoh.v. the onler subsequently lapsed without any applui.itioii having been niade by the assignee to be registered as proprietor of tlie debtor's land under the Act, Molesworth, J., refused to discharge tiie order, holdinj; that on the lapse of the order the estate reverted to the ilebtor, and the discharge of the order was unnecessary : in re Ray, i V. L. K. (i) 56." Such cntrif to /;<• irithonf prcjitdirc. lOO. I'ndor tliu precodiiis pi-ovisioiiH tiH to a himknipt lessee, no entry of the iisHii^nooor triistoo'H refusal to accept shall operate to prejudice any action or (jauso of action which HJiall have previously been coinnicnccd or have accrued in respect of any bretich or non-obscrvanco of any covenants ii. .such lease. Hold html on name truxt n^ dcci'itsi'd, etc. — Proriso : im to application to court hii pcniona hcncficiaUy interested and removal of trustee, etc. 101> Any person r('iS).. THE REAL PUOPEUTY ACT OP 1885. 807 y lim of ^ht of as any mparnR ien that, charged, no such taster of tgagee to 10 better, Sheriff's he hands may net ok. of suffi- ora the a copy General t effect li such {thereof. ly land itil the judge [he pro- Irder of Igistrar- Ihall be interest of his title to the sttrae, and from and after the confirmation of such sale the same sliall ho deemed to be valid and binding as against the execution debtor. Taken from McCarthy Hill, 117. See Land Titles Act and notes, pages 98 and gq, ante. This provision is a very wise one. It reeiuires confirmation of a sheriff's sale "by thii court or jiuti^f thi-reof from which the execution issued." The case of Freed v. Orr, 6 Ont. App. Rep. 6cjo, is a sufficient answer to any person who may cavil at the expense or delay. In the Ontario Land Titles Act this wise provision is wanting. The application for conjinnation of such sale; how made.. 10*S. The application for the confirmation of a sale made by the Sheriff may be made by the Sheriff' or any person interested in such sale on notice to the execution ■ debtor, unless the court or judge to whom such application be made shall dispense with such notice, and in case the same shall be confirmed, the costs thereof shall be borne and paid out of the purchase money or by the execution creditor and added to the amount of his claim as the court may direct, but in case such sale shall not be confirmed, the Sheriff shall forthwith refund to the purchaser the purchase money paid by him, and the court may make such order as to the costs of all parties of the sale and of the application for its confirmation as may bo just. Notice of intended registration under Sheriff's sale — Certificate of Registrar — Proviso. i06. When any land which shall have been registered under this Act shall be sold bv the Sheriff" under execution, the Registrar- General shall, upon the production to him of the transfer of the same by the Sheriff in the prescribed form with proof of the due execution thereof, cause a notice to be mailed to the proper or last known post-office address of the person whose interest in said lands shall have been sold, and after the expiration of two weeks or such further I Hi: 308 THE PROVINCE OF MANITOBA. mi m i).^ 1 1 if " i i :N ' time as the ReKistrar-Gonenil shall think fit, from the mailing of such notice, shall register the purchaser as owner of the interest in the said lands sold hy the Sheriff, and shall issue to him a certificate in the prescrihed form, and do all other things necessary for the registration of the Sheriff's vendee as registered proprietor of the interest in the lands purchased hy him, unless such registration shall in the meantime be stayed by the order of some court having jurisdiction, or of any judge thereof, and in such case the registration shall not be made, nor the certificate issued, except according to the order and direction of such court or judge. On proof of marriage of female oivncr, husband's name to be entered by Registrar — Surrender of existing certificate and issue of new one. (1.) The Kegistrar, upon the production of the register or other sufficient proof of the marriage of a female owner of any land, estate or interest accompanied by a statement in writing, signed by her, shall enter on the register and also upon the certificate of title or other instrument evidencing the title of such female owner when produced to him for that purpose, the name and description of her husband, the date of the marriage and where solemnized, and the date and hour of the production to him of the register or other sufficient evidence of such marriage ; and the Regis- trar upon application to that effect, and surrender of the existing certificate of title, shall comply with such applica- tion, and perform such acts as in accordance with the provisions of this Act, are necessary for the purpose of giving effect thereto. At first, sections 104 and 106 seem to be contradictory and inconsistent, but it is submitted that the course of procedure laid down by the two sections is as follows ; ist. Sale by sheriff, and. Sheriff has sale con- firmed. 3rd. Sheriff hands confirmation to Registrar-General, 4th. Registrar-General enters same in registry book. 5th. Gives notice for two THE REAL PROPERTY ACT OF 1885. 309 weeks. 6th. At end of time certificate issues. This seems to be the only way to reconcile the two sections unless it is contemplated to allow the sale to be confirmed in either of the methods mentioned in each section. Probably the Legislature will amend and e.xplain these sections. PART XII. CAVEATS. Who may lodge a caveat and fur what purpose. 107* Any person claiming to be interested under any will, settlement, or trust deed, or any instrument of trans- fer or transmission, or under any unregistered instrument, or otherwise howsoever, in any land, may lodge a caveat with the Eegistrar-General to the effect that no disposition of such land be made cither absolutelv, or in such manner and to such extent only as in such caveat may be expressed, or until notice siiall have been served on the caveator, or unless the instrument of disposition be expressed to be subject to the claim of tlie caveator, as nuiy be required in such caveat, or to any lawful conditions expressed therein. Form of. (1.) A caveat may be in the form contained in Schedule L to this Act, and shall be verified by the oath of the caveator or his agent, and shall contain an address within the Province at which notices may be served. Duty of Registrar-General on receipt thereof. (2.) Upon the receipt of a caveat, the Registrar-General shall make a memorandum thereon of the date, hour and minute of the receipt thereof, and shall enter a memoran- dum thereof in the Register Book, and shall forthwith send 'L ^4\ !i \l ■■ I t • r » 810 THE rUOVINCE OF MANITODA. a notice of kucIi caveat through the post-oflice or otherwise to the person against whoso title such caveat has heen lodged. Effect of caveat while in force. (3.) So long as any caveat remains in force prohihiting the transfer or other dealing with any land, the liegistrar- General shall not enter in the Register Book any raeraoran- dum of transfer or other instrument purporting to transfer or otherwise deal with or affect the land in respect to which such caveat is lodged. ProceediiKjs for setting it aside. (4.) The owner or other person claiming land may, hy s'lmmon ,, call upon the caveator to attend before a court of cOiupeteat jurisdiction, or a judge thereof, to show cause why the said caveat should not be withdrawn, and the said court may, upon proof that such last-mentioned person has been summoned, and upon such evidence as the court or judge may require, make such drder in the premises either ex parte or otherwise as to the said court or judge may seem fit ; And where a question of right or title requires to be determined, the proceedings followed shall be as nearly as may be in conformity with the rules of court in relation to civil causes. II -1, 'i HI I I To lapse unless proceedings^ taken within time to he fixed by Registrar-General. (5.) Except in the case of a caveat lodged by the Regis- trar-General, the caveatee may make application in writing to the Registrar-General to remove such caveat, and there- upon the Registrar-General shall give such notice in writing to the caveator as he may think proper, that the caveat may, except as hereinafter provided, be withdrawn, and after the lapse of such time the Registrar-General shall THE REAL PROPERTY ACT OF 1885. 811 remove such caveat from the lle;:;istor by entering a raom- orandum that the same is cUschargod, unless he shall have been previously served with an order from a court, or a judge thereof, extending the time as hereinafter provided. Address of cavcatce. (0.) Such caveatoe shall in such application give an address in the Province at whic': notices and proceedings may be served. Caveator may apphf to extend time. (7.) Tiie caveator may, either before or after receiving such notice from the llegistrar-Geneial, a))ply by summons to the court or a judge thereof for an order to extend the time mentioned in such notice, and such summons may be served at the address given in the application of the caveatee, and it shall be lawful for the court or judge, upon proof that the caveatee has been summoned, and upon such evidence as the court or judge may require, to make such order in the premises either ex parte or otherwise, as the court or judge may think tit. Power to withdraw caveat. (8.) The caveator may, by notice in writing to the Regis- trar-General, withdraw his caveat at any time, but such withdrawal shall not prejudice the power of the court or judge to make an order as to payment by the caveator of the costs of the caveatee incurred prior to tiie receipt by the caveatee of notice in writing of the withdrawal of such caveat. Entry of withdrawal, etc. (9.) An entry shall be made by the liegistrar-General in the register of the withdrawal, lapse, or removal, of any caveat or of any order made by the court. I ■■ }"■■ ; ^■■■ .''. n \'.l ^ii i t ' B12 TIIK I'llOVINCK OF MANITOBA. Further caveat not allowed. (10.) It shall not bo lawful for tlu3 samu pcirson or for any ono on his behalf to lodge a further caveat in relation to the same matter, but nothing herein contained shall prejudice the right of the Uegistrar-deneral to enter or continue any caveat under thi^ powers vested in him by this Act. lAahiUty of person icrowj/nUy entering caveat. (11.) Any person other than the Registrar-General lodging or continuing any cavc'at wrongfully and without reasonable cause, shall be liable to make compensation to any person who may have sustained damage thereby, and such compensation may be recovered by proceedings at law if the caveator has withdrawn such caveat, and no proceedings shall have been taken by the caveatee as herein provided, but if proceedings shall have been taken by the caveatee, then such compensation shall be decided by the court or sutdi judge acting in the same proceedings. Taken from McCirthy Hill, section 121. Compare Land Titles Act, sections 58, 59, 60, 65, et st-q., and notes thereon as tu. By referring to page 106 (notes), " It has been held, etc.," the reader might suppose that the particular sum of £g^ had something to do with the decisions. ]$y an error the whole of the grounds of the judgment was not inserted and to remedy same it is inserted here. " The nature of the estate or interest claimed by the caveator should be stated as clearly as possible ; it will not do to use general terms, such as an 'equitable interest.' Under .\ct No. 140, section So (Victoria), a caveat was lodged claiming a lien for £g^. The affidavit in support of the caveat also set up a claim to the land absolutely under a trust. Barry, J., refused to extend the operation of the caveat to the latter claim and ordered the caveat to be removed on payment of the ^94. Ex parte Lyons, i W. & W. Aa'B. (L) 119." The system of caveats is most advantageous. It enables a settlor of an estate to prevent the alienation of the estate without the consent of any named person, thus rendering the lands as secure, and probably more THE KKAIi I'UOPKIITY ACT OF 1885. 81 B secure than under tlie common mode of settlement in the hands of trustees : for it is usual to trust to the honesty cf such trustees, and give them power over the land. Thus, suppose a parent wishes to settle land for the lienetit of his daughter and her children. I le would convey the land to the trustees absolutely. He could then, by the words "no survivorship" (sec. 14.1). prevent the trust surviving, and, in addition, could tile a caveat forbiddinR a transfer of the land except with the consent of the dauRhter or her children, naming; same. This will tie the land up durinj* lives in bein^;. The system of caveat will be found also most valuable to any person requiring a slmrt loan on his property. He will only have to deposit hi;} certificate with the lender and ^ive his note ; tin- lender, by liling a caveat will be quite secure, as no transfer can be made without notice to the lender, who is holder of the certificate, who coukl thus take active steps to enforce his security. This section appears to cover not only registered dealings, but the lodginj^ of caveats befoie the laiid is brought under the oiieratioii of the .\ct. (i) See Form I.. Caveat will lapse after the expiration of 21 days from the date of the service, etc. The Registrar-(ieiieral appears to have power to extend the time, Part XII taken from McCarthy Hill, which was taken for the most part from the South Australian Act, sections Ki, 84. ("ompare sections 5H, 51J, 60, 61, and 65 Land Titles Act, pages 105, loH, ante. I'ait XII includes cautions against lands about to be brought under the Act as well as registered lands. Oliver has the following note : — " M. claiming to be entitled to certain land, but not beint; in .actual occupa- tion thereof, applied to bring it under the provisiciis of the Re.d Property .\ct, 26 Vic. No. g. B. thereupon lodged a caveat under the lojtli section of the Act, in respect of a certain portion of the land, which he alleged had been in his own quiet and peaceable possession for the last 25 years, and also commenced an action in the Supreme Court, but took no further proceedings therein up to the time of this application — a period of ten months; nor was the summons ever served on M. The Court, (Hargrave, J., dissentiente) made absolute a rule for the removal of the caveat, unless the caveator proceeded with his action within a reasonable time. Held (Hargrave, J., dissentiente) . that the section applies to all caveats under the Act; and that the \vords 'such caveat' at the commencement of the section are to be read as if 'any caveat.' Held (per Hargrave, J), that the proper course for M. to pursue, was to bring ejectment against B., or apply de novo for a certificate of title to the land, leaving out the portion in B's possession. Semble (per Faucett, J.), as the summons if issued and not served within si.\ months would be no longer in force (C. L. P. Act, s. 10), the caveat would lapse as if no action had been commenced. Ex parte M'lntosh, in re Barnes, 10 S. C. R.. 146. n IV"' ' ii 3 sliifiHlHRil I p 1 1 I 1 I I 1 I ; 5 i 1 1 n^ J'!' i Li 814 TIIK I'UOVINCH OK MANITOHA. TART XIII. ATTK8TATI0N OF INHTUIJMENTS. IIdic to he iritnesHfd — Oiitk of iiititcm. lOH. Po\Y(!r8 of attorney in tho form of Schodult! 11 to this Act, and instrutiuMits rcquiriuf:; to bo rct^'istered under the proviHions of tliis Act, other than f»rant8 from tho Crown, OrdorH-in-Coinicil, instrunionts undi-r tho Heal of any cori)oration, or certiliciites of any judicial [)roeeedinf,'n, attested as such, hIuiU he witnesHed hy one person, who shall attest the instrument in the usual le;^al form of attes- tation ; and the witness so attesting' tho instrument shall prove tho execution in manner reipiired hy tiie Lands Regis- tration Act of Manitoba or any Anu-ndmonts thereof. Same as McCarthy Hill, sec. 122. More general provision than tho section of the Victoria Act, sec. 115. Even in Melbourne the formalities prescribed by this section have fre- quently been dispensed with on the si^'natiire of the person signing an instrument having been verified by a statutory declaration from some credible person acciuainted with the hand-writing. The provision of the Land Registration Act of Manitoba is as f jIIows : — "XX. Every affidavit made under the authority of this Act may be made before any of the following persons: " (i.) If made in Manitoba, it may be before — "The registrar or deputy registrar of the county in which the lands lie ; " Or before a judge of any of the superior or county courts ; " Or before a commissioner authorized by any of the courts to take affidavits : " (2.) If made in any of the other Provinces of the Dominion, it may be made before — " A judge or prothonotary of any of the superior courts of law or equity ; " Or before any notary public, certified under his official seal : " (3.) If made in Great Britain or Ireland, or any of the Provinces of the Dominion, it may be made before — " A judge of any of the superior courts of law or equity therein ; " Or before a judge of any of the county courts within his county ; Tin; UKAI, I'Uol'KUTY ACT OF iHHf). \]\n "Or before eho mayor or chief innRistratc of .my city. bornuKh or town cor(x}rate therein, and certified under the common teal of siiich city, boroiiKh, or town corpornte ; "(Jr beforo .iny not.iry public, certified under his oflici.il seal : " (4.) If made in any Uritisli colony, or possession, it may be made before — " A judKe of a court of record ; " Or before the mayor of any city, borough, or town corporate, and certified under the common seal of such city, borough or town; "Or before .my not.iry public, rertiiied under his ofTicial seal : " (5 ) If made in the liritish possessions in India — " Hefoie any m-igistrate or collector, certilied to have been such under the hand of the governor of such possession : ' (0.) If made 111 any foreign country, it may be made before — " Tho mayor of any city, borough or town corporate of such country, and certified under the common seal of such city, boiough or town corporate ; " Or before any consul or vice-ccmsul of Her Majesty, resident therein ; "Or before a judge of a court of record, or a notary public, certified under his oflicial seal : " (7.) If made in the North-West Territories of the Dominion of Canada, or in the district of Keewatin, it may be made before — " A judge of .itiy court or a police magistrate, or before a commissioner authorized to take affidavits by any court, or before any notary public, certified under his official seal, or any justice of the peace ; and all instru- ments heretofore registered on any such affidavit are hereby declared to have been duly registered. 36 V. c. 18, s. 2^ ; 41 V. c. 9, s. 2." PART XIV. JURISDICTION OF TIIK COURT. Appeal by a person (Ussatisjicd icitli art or oin'.psion of lic(jistrar to Court of Queen's Jiench. 100. If any person is dissatisfied with any act, omission, refusal, decision, direction or order of the licgistrar- General, such person may require the Registrar-General to set forth in writing under his hand the grounds of such act, omission, refusal, direction, decision or order, m III i' ! I u ;i ml' aiu Till'. I'nOVINOK OK MANITOnA. and riiieli jxrHoti may thou apply to tlio Court of Qm'on*« Hctich or a jihIk'' tlicr.\, itutt. See Nub.8t!ction 4 of section 107, with rt'^nrtl to cnveats. Several cases in N. S. Wales may bo of interest in connection with this section " Application to brinj; three prijperlii's, situate rfspectivfly in I'itt s -t, Sydney, Kedft-rn. ami Vaiu hise, under thu Heal Property Act, deil v thf L.ind Titles (■oninii->sif)iiurs. On a motion under Heclion compel them to entertain said application, it was held that every appliLa- tiun to bring land under the provisions of the said Act must be conlined to one block or contiKuous track. It was contended on applicant's behalf that tho KeKistrar-Cieneral had no power to make tho Kules of June ist, t8()j, whii h forbailc the reception of his apiiliLMlion. And Stejihcn, C J,, and Milford, J., seemed to think that no power to make these rules had been conft.Tri'd by the statute ; the fortner, however, thillkill^; that as .m expression of law the rules were coirect. Ex pnrte liiirncll and anuthur, 3 S. r. K., p. 148. "The Ke(,'istrai-rieneral having, under the I^e.d Property Act, 20 Vic. No. y, issued a certitic.iti; of title, with a clause endorsed tlicuon, reserv- inR, or purporting to reserve ' any lawful riRhts incident to the alif^nment of streets or roads abutting on the land,' the Court (Stephen, C.J , ilissent- icnte) directed the l;istrar-{jeneral to cancel such ceriihcate, and to issue a new certificate in the same terms but without such a clause. Ex parte Smart, 6 S C. K., p. 1H8. A testator devised and bequeathed to trustees liis real and personal estate, to hold the same upon trust to pay his debts ; and in case the per- sonal estate should be insufficient, he authorized the trustees and their heirs to sell such part of the real estate as should be necessary for that purpose — also, upon trust, to let for the best rent such part of the real estate as should not be sold, until the testator's son should attain the ago of 21 years. The testator directed that the rents of the real estate, or so niK HV,M, I'UOI'KUTY AiH" OK IHHri. •IT iniii'h nn t e uf hin «<>n tinitl hs ihouM Imvi* uitniiii'l ^, an( liU iitlural lilc, tunnd for hilt own prosier ii»a iind brnohl. Tu«lntor'th(.Mi (Icc'larrd Ihiit the nun ■hotild have ixnvnr to let thn rral entatfl for nny trriti imt tii> >>nliM>{ .m yniim, and upon tho fion'n death ihn tcHlntor ihtii deviled ihn ^.tiil rf.il eatnte nn follnvvn i—Unto thu heir« uf the lioily of hini, mv MMid won. law- fully to l>u l>c>{<)tti:u, Helii aho, ptr Sir J. Martin, C.J (folli.wiii^ yessuii V. W'rif^ht, i Hliuli i), that in a devise such as this, the words after the words ' heirs of the boily ' must he rejected as bv\uv, repuKnant to the estate which these words properly and technically created. //(•/;ns, ' freed and disch.irKed from any trusts conveyed by the said will.' By a second Act the Primary Judne was authorized to appoint two additional trustees. The trustees applied to have portions of the lands devised by the will brought under the provisions of the Keal Property Act. The (Commissioners rejected the application, on t' e grounds substantially that it had been ascertained by search in the ReRistry Office that there wtre various encumbrances affect- ing the property which had not been noticed in the application, and that I'M 818 THE PROVINCE OF MANITOBA. I- ' ^iili the parties interesfe{ment the circumstances of the case mij^ht require. HiUl, that the le^al estate was vested in the five trustees, and that they had a power of selling and conveying a title in fee simple to purchasers. Also held (Sir J. Martin, C.J., dissenting), that the trustees had complied with the provisions of the Lands Titles Act, and that the application should be sent b.ick to the Kegistrar-Cieneral to cause the investigati Registrar-General may refer doubtfal point to said court or a judge — ProceedingH thereupon. 110. Whenever any question arises with regard to the performance of any duties, or the exercise of any of the functions by this Act conferred or imposed upon the Registrar- General, or whenever in the exercise of any of the duties of the Registrar-General, any question arises as to the true construction or legal validity or effect of any in- strument, or as to the persons entitled, or to the extent or nature of the estate, right or interest, power or authority, of any person or class of persons, or the mode in which any entry ought to be made on the register or certificate of title, or as to any doubtful or uncertain right or interest stated, or dealt with by the Registrar-General, it shall be compe- tent for him to refer the same, with a short statement of facts, and the reasons for his referring the matter and the THE REAL I'ROl'EUTY ACT OF 1885. 819 names of the parties intt'rested ho far as ho knows or has been informed, to the said court, or a judge, which or who may, if it or ho sees iit, allow any of the parties interested to appear before it or him, and suunnon any otliers of such parties to appear and show cause either personally or by counsel or attorney in relation thereto ; And if upon such reference the said court or jud^^e, havinf; rej^ard to the parties appearing before it or liim, thinks proper to decide the question, it or he shall have power to do so or to direct any proceedings to be instituted for that puri)ose, or, at the discretion of the said court or judge, and without deciding such question, to direct such particular form of entry to be made on the register or certificate of title as under the circumstances appears to be just. Same as McCarthy Bill. Under this provision the Registrar-General has referred two cr.ses, Re Irish and Re Bannantyne, to the court for their decision. .\ report of the cases will be found in the Appendix. The Act of Victoria (Australia) authorizes the same mode of procedure. See Hodgson v. Hunter, 3 A. J. R. 13. Power of liefiistrar-Gcneral in case of fraud or error — Interference by court or judge. 111. If it appears to the satisfaction of the Registrar- General that any grant, certificate of title, or other instru- ment has been issued in error, or contains any misdescrip- tion of land, or of boundaries, or that any entry or endorse- ment has been made in error on any grant, certificate of title or other instrument, or that any such grant, certificate, instrument, entry, or endorsement has been fraudulently or wrongfully obtained, or that any such grant, certificate, or instrument is fraudulently or wrongfully retained, he may summon the person to whom such grant, certificate, or instrument has been so 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 as the case may require, and in case such person refuses or neglects to '1)1 320 THE PROVINCE OP MANITOBA. comply with such summonfl, or cannot be found, the Ecgistrar-General may apply to the said Court of Queen's Bench or a judge thereof to issue a summons for such person to appear before the court or a judge thereof, and show cause why such grant, certificate or other instrument should not be delivered up to be cancelled or corrected as aforesaid, and i' such person, when served with such summons, neglects or refuses to attend before the court or judge at the time therein appointed, it shall be lawful for the court or judge to issue a warrant authorizing and directing the person so summoned to be apprehended and brought before the said court or a judge thereof for examination. See section 44 and notes thereon. This provision is for the purpose of Rivii.g power to the Registrar-General to cancel certificates erroneously issued, or issued fraudulently. This provision is wider than the provisions in Victoria Statute. As to decisions there, in Giinn v. Harvey, i V. L. R. (E.) ixi, and Campbell v, Janet, 7 V. L. R. (E.) 137, where certificates of title were impeached for fraud, it was held that the court had no jurisdiction to correct them or to cancel them, and that the proper course was to direct the parties to execute the necessary transfers. Where a voluntary settlement was defeated by a subsequent mortgage, the court did not order the mortgagee to be regis- tered as absolute proprietor, but directed the trustee of the settlement to execute a mortgage. Most v. Williamson, 3 V. L. R. (E.) 221. See, also, In re Biggs, 11 3. A. L. R., 43; Biggs v. Waterhonse, 12 S. A. L. R. 75, 86. Examination of persons before judge — Cancellation by order of court or judge, and duty of Registrar. 113. Upon the appearance before the court or judge of any person summoned or brought up by virtue of a warrant as aforesaid, it shall be lawful for the said court or judge to examine such person upon oath, and, in case it appears right so to do, to order such person to deliver up such grant, certificate or title, or other instrument as aforesaid ; and upon refusal or neglect by such person to deliver up tbe same, pursuant to such order, to commit such person to tbe THE REAIi PROPKIITY ACT OF 1885. 821 common gaol of any judicial district for any period not exccedinj^ six months, unless such grant, certilicate of title, or instrument be sooner delivered up, and in such case or incase such person has absconded, so that summons cannot be served upon him as hereinbefore directed, the said court or judge may direct the Resistrar-General to cancel or correct any certificate of title or other instrument, or any entry or memorial in the Register relating to such land, and to substitute and issue such certificate of title or other instrument or make such entry as the circumstances of the case may require, and the Hegistrar-Geueral shall obey such order. Further ]}oivers of direction hy court or judge. 11*<. Ill any proceeding respecting land or in reypect of any transaction, or contract relating thereto, or in respect of any instrument, caveat, memorial, or other entiy affecting land, it shall be lawful for the court or judge by decree or order to direct the Registrar-General to cancel, correct, substitute, or issue any certificate of title, or make any memorial or entry in the Register, or otherwise to do every such act or make every such entry as may be necessary to give effect to the judgment, or decree, or order of the court. Right of appeal — Practice and procedure. 114. In the conduct of actions and other proceedings provided for under this Act, iliere shall be the same rights of appeal, and the same rules of procedure and practice shall ajjply as are in force or exist for the time being in respect of actions and other proceedings of a similar nature in the court in which such action or proceeding may be tried or taken, and such court shall have power to malie additional or alter rules and regulations and make new or alter forms of proceedings, and from time to time repeal, alter or vary the then existing rules and regulations, and 21 •i m ■ f r t\- : 322 THE PROVINCE OF MANITOBA. to make new rules and regulations and forms of proceedings for the practice and procedure of the court in regard to matters which may arise under the provisions of this Act. Fees j)ai/ahle, 115. The court shall have the power to fix and regulate from time to time the fees payable upon all proceedings before the court, and until the said court shall otherwise order, the fees payable shall be according to the fees payable in respect to proceedings of a similar nature in the court. PART XV. EJECTMENT — ASSURANCF-; FUND, ETC. Registered owner protected againnt ejectment except. 11«. No action of ejectment or other action for tho recovery of any land subject to this Act shall lie or be sus- tained against the registered owner under the provisions of this Act for the estate or interest in respect to which he is so registered, except in the following cases, that is to say : Mortgagor in default. (1.) The case of a mortgagee as against a mortgagor in default ; Encumbrancer in defaidt. (2.) The case of an encumbrancee as against an encum- brancer in default ; Lessee in default. (3.) The case of a lessor as against a lessee in default; Tin; i:kal riiorKi;TY act of 1885. 323 Fr((U(l. (4.) The case of a perRon ddprhed of any land by fraud as against the person registered as owner of such land throu{j;h fraud, or as ai^ainst a i)er8on deriving otherwise than as a transferee hotia tide for value, from or through a person so registered through fraud; • ]Vrov(f houiidaries. (o.) The case of a person deprived of or claiming any land included in any grant or certillcate of title of other land by misdescription of such other land or its boundaries as against the registered owner of such other land, not being a transferee of such other land or deriving from or through a transferee thereof hoiKtjidc for value ; Bouhle rriiistration. (C).) The case of a registered owner claiming under the instrument of title prior in date of registration under the provisions of this Act, or in anj' 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 to the same; land ; As to other cases. (7.) And in any case other than as aforesaid, the produc- tion of the registered certificate of title shall be held in every court of law or equity to be an absolute bar and estoppel of any such action aganist the person named in such instrument as seized of, or as registered owner or lessee of the land therein described, any rule of law or equity to the contrary notwithstanding. Taken from the McCarthy Bill, section 132, which was taken in a great measure from the South Australian Act, section 124. 324 TIIK PHOVIMCIC OF MANITOIIA. 'r\ See InrnI Titles Act, soclion lofj, rl wq , \\\)iQA 148, 140, 150, ante, and Real I'r(5pi!rty Act (Manitoba), s.ictinn 6-:, (7 scq., and p.i;^cs ifii), 267, 271, 272, 273, 274, iDtte. Sou section 127, post, which protects persons adversely in actual occii- patifin of, and rightly entitled to the land. Tliis section is tiie same as the Victoria Act, section ij8, "The case of a lessor aj^ainst a lessee in default." Quicre, whether this clause refers to lensees in default under section 73, pat'o 2H2 (sub-section a), ante. Sanders v. WdiHinin, 4 S. A. L. K. 73 ; IJiicknall v. A'c/'i/, 10 S. A. F., H. 1H8, As to leasr continued, a riyht of re-entry did not arise i'l conse- quence of a bre.'.ch of it. Sanders v, Wadhain, 4 S. A. L. K. 73. "To be an absolute bar, etc., to any such action." That is an action at law cjusdent f^eneris with ejectment which may by posiiibility CDme under the cognizance of a Court of ICquify, but this i>rovision would not make the production of the certificate a bar to a suit to enfrin^ such land mider thc^ provi- sions of this Act, or to he re<;istered as owner of such hind, CHtati) or interest, or in any instrument executed hy hini, such person shall, uiion a, transfer of such land houn J'i/r. It is jieculi.irly tht, idea of Sir Uobert Torrens, and appears to havi! been used by him to inollify tliu antagonism of the prof«;:ssion against thtj " Torrens System " when first introdiic<;d in South Australia, in 1S5H. All the .\ustralian ('olonies appear to have followed it. Itiit in practice it has been found of little use, except to accumulate money for the benefit of the Government, by pl.icinn a lax on land first biou(;ht under the Act, and on transmissions. The nsmarks of the Canad.i Land Law Amendment Association, .'is published in their recent circular (January, i8S6), seem apropos, "The Association bolievo tli.it the comlitions under which lands may be lirou^ht under the Torrens Act now in force, subject landowners to a heavier expense than there is any necessity for. The experience of the Australian Colonies jiroves th.'it tlic clai'iv. upon the f,'uarantee fund are almost nominal. In one colony whore the contribution to the guarantee fund is one-fifth of one per cent, the fund has resularly increased every year, until it amounts to about $350,000, and the claims upon it in twenty- seven years have only aaiouiited to §0,000. The e.\penses necuiisarily ;ittendaiu upon biinj;in;; lands under the .\ct are sufficiently onerous with- out also callinK on landov.ners to pile up a larse fund in the hands of the ( lovernment, for whicli no sufficient value is ^ivrm. Instoad of contiiniinn liie present charge of one-fourth of one per cent, in all cases, one of tlu- immediate objects of the Associalion is tu sjcure the adoption of tlie tariff set forth in clause 2." Clause 2 is as fcjllows : — " To promote the amendment of the .\ct by providing that no contri- bution to the assurance fund shall be require 1 wheri; a certificate is granted of a possessory title only, an.l the reduction of the contributions to the assurance fund in all other cases of lands first brought under the Act to a tenth of one per cent., and that a similr.r contribution be require 1 in all casjs where lands registered under the Act devolve on the death of an owner." It appears to me, that a better method than either suggested would be, to do aw\;y with all preiniuiiis of assurance whatever, except in cases where land is acipiired Ijy transmission, Probablv, at present, in Manitoba, they could not afford to alter the law until the Province becomes more settled, as that Province has no Crown Lands to depend on ; but certainly in Ontario there is no occasion, with our large surplus, to place any lax what- ever 1 7 /(//(./ first brought under the Act. Parch'iicrs (uvl imvtijajccs prutcc.tcil in such cuic's. !!.*». Nothing in this Act contained shall be so inter- preted as to leave, subject to action for recovery of damages as aforesaid, or to action of ejectment, or to deprivation of TIIK REAL I'UOPKUTY ACT OF IBRH. 827 the estate, or interest in respect to which he in reRiHtereci !i8 owner, any purcluiHer or niortt^'a^ee hi)na J'ulc for vahi- iiblo consideration of hind under the provisions of this Act, on the plea that his vendor or mort}^ap[or may have been registered as proprietor, throu^^h fraud or error, or nuiy have derived from or throuKli a person registered as owner through fraud or error, and tliis whether such fraud or 'jrror shall consist in wrong description of the boundaries or of the parcels of any land or otherwise howsoever. 1/ rer/ibtcretl owner ii;ilit arjainst Rcijistrar-iTcneral as nominal defendant — Pai/ment on! of Assurance Fund — Xotice of action. 120. Any person sushiining loss or damage througli any omission, mistake or misfeasance of the llegistrar-General, I ' I; ; t ■l ■ M \i %n.i rf'i :;' m i ' T m^'^'- I0HL''.^ ' ^^K' 'i i lik 1328 Tm; I'UoviNOR op manitoiia. or any of his ofVicerH or clorkH in tho execution of tlu'ir rcspcctivo (lutirrt, undor tho provisions of tliis A(!t, luul any pri'Mon di'privcd of any land or of any estate or interest in land tlirou^^h tlio hrin^in^' of the sanie under the provisions of this Act, or l)y the registration of any othcM* person as owner of such hind, or hy any error, onimissioii or niiH(h'Scription in any certilicate of titU', or in any entry or memorial in the HcKister JJook, and who hy tho provisions of this Act is harred from hrin^in^,' action of ejectment or other action for tlie recoverv of such land, estate or interest, miiv, in any case in which the remedy )ty iiction for recovery of damages as hereinhefore provided is harreil, hrin^^ an action a^'ainst tho llef^istrar-Cleneral as nominal defeiahint for recovery of damages; and in case the plaintilV recovers Ihial judgment against such nominal defendant, then the court or judge before whom sucii action may he tried, shall certify to tho Treasurer of the Province the fact of such judgment, and the amount of damages and costs recovered, and the said treasurer thereupon shall i)ay the amount of tho said dam- ages and costs to the person recovering the same, and shall charge the same to the account of the Assurance Fund. I'rovided always, that notice in writing of every such action, and of the cause thereof, shall bo served upon the Attorney- General of the Province and also upon the Registrar-General one calendar month at least before the commencement of such action. This section is almost the same as section 144 of Victoria Act, Mr. a'Beckett has the following : — "Although in this section the words 'any person sustaining loss' are substituted for those, ' any person deprived of land,' used in section 117, they are to be construed as havinf» tlie same meaninc;, and apply solely to the case of a deprivation of an estate previously possesseil. An owner brought his land umlur the Statute. The registrar omitted to make the endorsement on the title deeds (required by Victoria Act, section 27. See notes, page 257, ante). The owner getting back the deeds, was enabled by such omission fraudulently to conceal the fact that the land had been transferred to a purchaser under the statute, and borrowed money on the security of the worthless deeds. The lenders sued the registrar of titles Tlin HEAL lUOI'KUTY ACT OF 1H86. B2U umlcr tliis section, but it ^vas helil by tlu! Chief Justici- and Ihilroyd, |. (HiKKitibiitliniii, J , ilh%i'nti,uti), tlitt ns tlie IcndurN took no iiitt-ruitt in tin land utiilcr tliu worthieHi Nfctiiitv, they had not bron (Icprivod of an interest, nnd had thoreforn siistaiiiei! no loss within the tm itiiiij; of ll\o sectiiiii, IClaliiiratu ixpositioiiiioti th«M;ffj'Ct 111 al! thi- m . ii .iii (l"aiinn with liability of the asHtirnnce fund will bo found in the jud^'mcnt in thin cane. (),ikitiit anil iitln'ts V. (iiliiii, S \'. L. H, (L.) jSo. " All action should nut be brought aKiiii>t the rcKistrar if an action will lie nwainst any one tlso under section 117, nnif. Frathini^luim v. Arclur, 5 \V. \V.. and a'il. (L) <)5. In Victoria, in cstiinatinn v ir/a'/t nniniiuil ili'/fiidaiit shall luirc coata. I2I« If in liny Huch action jntlgint'nt be Rivon in favonr of tli(! nominal dcftMidant, or tho plaintilY discontinuL' or becoino non-suit, tho plaintifl" nhall be Uablo to pay tho full costs of (lefentliii'^ such action, and tho samo when taxccl shall be levied in tho name of tho nominal defendant by the like process of execution as in other actions on the ease. Limitation of dction — Proriao : in cases of (UsahiUti/ — As to persons harituj notice and ne(flectin(j to file caveat. 12S> No action for recovery of dama}:;es sustained throu^^h deprivation of land or of any estat*; or interest in land us hereinbefore described shall lie or be sustained against the Registrar-General, or against the Assurance Fund,orugainst the person upon whoso application such land was broui^'lit under the provisions of this Act, or against the person who applied to be registered as owner in respect to such land, or against the person executing any instrument as afore- said, unless such action bo commenced within the period of six years from the date of such deprivation ; Provided nevertheless, that any person being mider the disability of coverture, infancy, unsoundness of mind or absence from Il U13U TIIK I'UOVINIK OF M-VNITOUA. 1 » tlu! Province, may briiiK such iiction within six yvnrn from thi) (hito on winch Hiic.h (liHiiKility Hhiill hiivo ccaHid ; and tho pliiiiitirf, in any such Jiction at whati'VtT timo it nniy he i>i'()UKlit, or the plaintitT in an action for thi! rccnvrry of hind, Hhall he noit-Huitcil in any caHo in which the (h'priva- tion coniphiinrd of may havo hoon occaniontd throuj^h tho iirin^in;; of hucIi hmd lunh-r tlio provisions ot thin Act, if it bo madn to appear to tho satisfaction of tho court hcforc which snch action ^'hall ho tried that snch plaintitV or the person tin'ou^j;h ov inider whom he ilaims title hail notice, hy personal service or othrrwii-t , or was aware tliat applica- liou had hci'u made to hviii'^ such land uniler the provisionii of this v\( I, and liad willully or collusively oinitled to lotl^^e a caveat forhidding the same or luul allo\vi;d such cuvtat to la])He. llncorerji of mttixint juiid out ol' AHHitriinn: Fund — 1/ jhtity lidhlc is out of l*nn-iii(U! — 1/ lie It'tn not h'/t property to Hdtinj'if the dtiim. riil. Whonovor any amount has boon pai 1 out of tho Assuraiieo l''uiid on account of any i^rson who may he dead, suidi amount nniy he reo()vere(l Irom tlie estate of such person hy action a<];ainst his personal representatives* in tho name of the lie;^istrar-General ; and wluiiever any amount has been paid out of the Assurance Fund on account of any ])erson who may have absconded, or who cannot be found within the Province, and may have left any real or personal estate within the I'rovinci;, it siuiU 1)'; lawful for the said court or a .judp[e thereof, upon the ap[)licatio! > , Jtegistrar-General, and upon thi' production oi -i - 'titicate 8i;4ned by the Treasurer of tho Province, C( .;^ tijat the amount has been paid in satisfaction of a ji, ment nc^ainst the Kegistrar-G'meral, as nominal defendani, toal'ow the llej^istrar-Cionc'ral to sign judgment against sucii person forthwith, for tho amount so i)aid out of the Assurance Fuiid, together with the costs of the application ; and such TIIK UK VI. I'ltiil'KUTY ACT «)!' IHH!), \m jiKlKHii'iit hIuiII \w liiiiil mill siv;iii'il in lil\t> hiiimimt hh a iiiitil jiidKiiii'iit, by coiifi'S;^!')!) or lUtfuiilt in iitiy ii suit, and t'XccMitioii may issue imnictliiitily ; luid if such pii-son hIiu'! not liiiv«' liift real or pcrsomil t'Statc within the I'roviticc, siilVicicMit t(t siitisfv tlio uinoiiut for which I'xccu- tioM timy hiivu been ittimiMl uh aforrsiiiil, it Hhiill !)•> hiwfiil for tho Iti'^iHtriirrtciH'nil to recover Mich iinioimt, or tlic unricovcrcti huluiu'i' (hereof, hy action ii;,'aiiiHt such ju'rhoii wheiiuvor and in such manner us may ho possihU;. A^Hiirniirc {•'mill not liuhlr in n'rtdin I'dHt'H. V-il* Tho Assuramn; Fund Hhall not, uiitU'r any oircuin- stanot'H he Hiihle for (•f)mpensation for any loss, (himaj^c or d hv tho hroaeh 1) d reflistere of any trust, wlielher exjiress, implied or coiislructivo ; nor in anyciiHi) in whi'-h the sinne hind may have been inchided in two or more |j;rants from tho Cr(>wn ; nor shall the Assurance Fund be liable in any case in wliicli such loss or deprivation has been occasioned hy any land biin;j; indudi'd in the same certificate of title witli otlu'r land throu;,'h luibdeHcription of tho boundarieH cr i)arc(ds of any land, nil less in the case last aforesaid, it shall be ))i'oved that the person liable for compensation and damaf:;c'H is dead, or has absconded, or the sheritl' shall certify that such person is unable to pay the full aiiKjuiit and costs awardtnl in anv action for recovery v;f such compensation ; and the saiii fund shall bo liable for such amounts only as the shi'rill' shall fail to recover from the person liable as aforesaid. CDDiin'iHHion jhD/dlil,' tut hriii'iin'i htnd under Act. V2H» Upon the first brin^'iin; of land under the provisions of this Act, whether by the alienation thereof in fee from the Crown, or *cons('iiuent upon the ai)plication of the *\Vlien this statute \mis first printtil in tlio M;uiitcili,-i Cui^elte the word " cons(.'([UiMit " was iiscil, ^^■lllcll is the saii.t; as :n Mci;artliv iiill, but when it was reprinteii in the Manitoba Statutes the word "subsequent" was inserted. We i)refer "consequent " as used above. 832 THE PBOVINCE OP SIANITOBA. m owner as hereinbefore provided, and also upon the regis- tration of the title to an estate of freehold in possession of land under the provisions of this Act, derived through the will or intestacy of a previous owner, or under any settle- ment, there shall he paid one-cpuirter of one per cent, of the value thereof, such value to ho ascertained by the oath or solemn allirmatiou of the applicant, owner or person acquiring such land. Provided always, that if the llegis! rar- General bo not satistied as to the correctness of the value so allirmed or sworn to, it shall be lawful for him to require such applicant, owner or person deriving such land by transmission, to produce a certificate of such value under the hand of a sworn valuator appointed by the llegistrar- Gcneral, which certilicate shall be received as conclusive evidence of such value for the purpose aforesaid. Moncjis iniid to Prnvincvd Treasurer to vonstitute an Assurance Fund. 130. All sums of money so received as aforesaid shall be paid in to the Treasurer of the Province, who shall from time to time invest such sums, together with all interest and profits which may have accrued thereon, in such securities as may from time to time be approved of by the Lieutenant-Governor-in-Council, to constitute an Assurance Fund for the purposes hereinafter provided. PART XVI. MISCELLANEOUS PROVISIONS. First certificate void as arjainst person ritjhtfuUy entitled in actual adverse occupation. 137* Any certificate of title issued upon the first bringing of land under the provisions of this Act, and every certificate THE REAL PROPERTY ACT OF 1885. 333 of title issued in respect of the same land, or any part thereof to any person claiming or deriving title under or through the applicant owner, shall be void as against the title of any person adversely in actual occupation of, and rightly entitled to such land or any part thereof, at the time when such land was so brought under the provisions of this Act, and continuing in such occupation at the time of any sebsequent certificate of title being issued in respect of the said land, but every such certiticate shall be valid and effectual as against the title of any other person whomsoever. Taken from McCarthy Bill, which was taken from South Australian Act, section 134. As to " adverse" possession, see tintc, page 56. This section is evidently put in to protect the rights of persons in possession. Under the Quieting of Titles Act, it has always been the practice to require that the applicant shall show tliat he is in possession, either by himself or his tenants, before the application would be enter- tained. Mr. Justice Taylor says, in his work on Quieting of Titles Act : " The possession of the property, and not merely the paper title, should be inquired into. This is a cardinal point, and yet is often neglected. If the possession has always gone with the title claimed by the vendor, it affords a presumption in favour of the title ; and the deeds, etc., under which it is derived, may be assumed to be genuine (unless something suspicious appears on their face). If the possession has not always gone with the title, satisfactory evidence of the reason cannot safely be dis- pensed with." Introduction, Taylor on Titles, page i. " A title by possession, though less satisfactory than one which can be traced to the patentee from the Crown, is a title which, under an ordinary contract of purchase, a purchaser is bound to accept, if duly verified." Taylor on Titles, 53. Dent on Vendors, 369 ; Taylor's Vendor and Pur- chaser, 389 ; Darling on Limitations, 389 ; Hyde v. Dallamay, G Jur. 1 19. Lord St. Leonard rcmar'Ks, in Scott v. Xi.vun, 3 Dru. and War. 405, " that a clear title, and just as qood as any other title, might be acquired by adverse possession." See Land Titles Act, section 25 and notes, pages 67, 68, 69, 70, ante. Ilegistrar-General mny cancel sejiumti: crrli/wutrs to snitu' jyersoii and issue one or more certificates. 12H. Upon the apiJication of any owner of lands held under separate grants or certilicates of title, or under one 33-1 THE rnOVINCK OF MANITOBA. 'r { I <■■ V. grant or certificate of title, and the delivering; up of such Rrant or grants, certificate or certificates of title, it shall bo lawful for the Registrar-General to issue to such proprietor a single certificate of title for the; whole of such land or several certificates each containing a portion of such lands, in accordance with such api)lieation and as far as the same may be done consistently with any regulation for the time being in force respecting, the parcels of land that may be included in one certificate of title ; and upon issuing anj' such ceriificate of title, the Hegistrar-General shall enter on the new certificate of title all the memorials to which the piece of land is at the time subject, and shall cancel the grant or previous certificate of title of such land so delivered up, and shall endorse thereupon a memorandum setting forth the occasion of such cancellation and referring to the certificate of title so issued. lie i. " The application to consolidate may be sifjiied by the solicitor or by the attorney under power of th-; applicant. The apjilicatioii may be introduced into a transfer, and should be before the rcfjistiation of the transfer or entry of the transmission. Where land is brought under tl;e statute, the direction must be lodged before the certificate of title is drafted, otherwise it will not be attended to. A mortgagor will not be allowed to consolidate certificates without the written consent of the mort- gagee." I'ractice in Australia, a'Beckett, 117. Regulation in Victoria as to. " The parcels of land to be in the same parish, and not to comprise more than one Crov.n section, block, or portion, or one section, block, or portion of a pri%'ate subdivision. Contiguous country lands, not exceeding altogether 1,920 acres, whether in the same parish or not, and whether comprising more than one Crown section, block, or portion or not, may, however, be included in the same certificate, A road not 'o be considered a break in the contiguity." Provision in case of loss or destruction of certificate — Provisional certificate — Entry in Register — Proviso: thirty days* notice. Idtf • In the event of a grant or certificate of title of land being lost or destroyed, the owner of such land, together TIIK HEAL niOPF-RTY ACT OF 1885. 33r) with other persons, if any, having kno\\ic(l{,'o of the circumstances, may make a statutory declaration stating the facts of the ease, the names and descriptions of tlie registered owners, and the particuhirs of all mortgages, encumbrances, and other matters effecting such land and the title thereto, to the best of declarant's knowledge and belief, and the Registrar-General, if satisfied of the truth of such declaration and the bona Jules o^ the transaction, may issue to the owner of such land a provisiomil ctjrtilicate of title of such land, which provisional certificate shall contain an exact copy of the original grant or certillcate of title bound up in the Eegister, and of every memorandum and endorsement thereon, and shall also contain a statement why such provisional certificate is issued ; and the Registrar- General shall at the same lime enter in the Register, notice of the issuing of such provisional certificate and the date thereof and why it was issued, and such provisional certi- ficate shall bo available to all purposes and uses for which the grant or certificate of title so lost or destroyed would have been available, and as valid to all intents^ as such lost grant or certificate ; Provided always, that the Registrar- General, before issuing such provisional certificate, shall give at least thirty days' notice of his intention so to do, in some newspaper published in the Judicial District in which such land is situate, or if there be no such news- paper, then by posting it in at least three conspicuous places in the vicinity of said land as he may direct. Same as McCarthy Bill. See Land Titles Act, section 80, pages 125, 126, ante. In Australia, " a registered proprietor, who held several adjoining allotments under separate certificates of title, applied under this section for a consolidated special certificate. The application was refused, it being considered that a special certificate should be issued in respect of each allotment." Sedg. 85. 886 THK rUOVINCE 01' MANITOllA. "»t;"';': Owner Buh-iUcuUmj laud to jilc mnp — Hoiv certijieil. i:SO. Any owuer sub-dividing land for the purpose of soiling tho Hiime in allotmontK, as a town plot, shall deposit with the Registrar-General a map of such town plot, pro- videcl that such map shall exhibit distinctly all roads, streets, passages, thoroughfares, squares, or resj'rves, ap- ]iropriated or sot apart for public use, and also all allot- ruonts into which the said land is divided, marked with distinct i^umbers and symbols ; and every such map shall be signed by the owner or his agent, and cortifled as accu- rate by declaration of a Provincial Land Surveyor before the Registrar-General or a Justice of the Peace. " A registered proprietor, who had subdivided laml, deposited a map, and transferred several allotments, havinj? arranged to alter the direction of one of the roads, was allowed to make the necessary alieration on the deposited map, on furnishing written consent from all the transferees whose certilkates of title referred to the plan of subdivision, and their mortgagees (if any), and loe aacertninrd. 130* Whenever in any action, suit or other proceeding affecting the title to land, or any estate or interest therein, subject to the provisions of this Act, it becomes necessary to determine the fact whether the transferee, mortgagee, encumbrancee or lessee is a purchaser or transferee for valuable consideration or not, any person who is a party to such action, suit, or other proceeding, may give in evidence any transfer, mortgage, encumbrance, lease or other in- strument affecting the title to such land, estate or interest in dispute, although the same may not be referred to in the certificate of title, or may have been cancelled by the Registrar-General. Lientenant-Governor-in-Connnl may alter and provide forms, make, rules and rcjiulations. i:i7> The Lieutenant-Governor-in-Council shall have power from time to time to alter any of the forms in the schedules to this Act, to provide any additional forms as may be deemed necessary, and to make such rules and regulations as may be necessary .to carry into effect the TIIK IlKAI. I'KOI'KUTY AlT OF IHHG, aai) \)roviHi()iM of tliiri Act ; and to iniiko n\\vh rules atid rofj;iila- lioiiH an may be deemed ueceHsary for f^ivin;^ elTect to this Aet in canes uni)rovided for, accordinj^ to its true intent and purpose. (jiantee from Croicn cannot chanijc fac-Himplc into fee-tail. VJtHm It shall not be lawful for any K^'finteo of Crown lands, his heirs, representatives or assij^neeH, by any trans- fer, transmission or dealinu with the said lands, to change the fee-siuiplo of the lands granted into any limited fee or fee-tail, but the land, whatever form of words may be used, in any instrument of transfer or transmission, or dealing, bliall be and remain an absolute est' tlmin jih tnistcu's, rimy. I'}' writiiij^ mikKt their Imiul, !iiitlii)ri/.i' i\w IU!^iHtnir-(Mt»('ra! to enter tlie wordri " uo HiinirorHhip" upon tlie f^nvtit, certilic'jitu of title or other iiiMtruineut evidt'iicin^,' their title to Huch eHtate or interoHt, iind :'.!s > upon thu diipliciito of HUeh iiiHtrinneiit in the Ue;^iHt«'r I'dok or fyled in liin olVice ; and after such entry has ix-en innde and Hi^iied by tlie Ke^iHtrar-G(!neral in either Huch case an aforesaid, it phali not 1.3 lawful foe any less nuniher of joint propriefors than tho innnlxT thou re'. i- i), 145. Before making:; any such order as aforesaid, tho court or a judj^o thereof shall, if it Hceuia requisite, cause notice of intention so to do to be properly advertised, and shall appoint a period of time within which it shall be lawful for any person interested to show cause why such order should not be issued ; and thereupon it shall be law • i .4 i TiiK nKAi, ru()i'i;uTY act Of 1885. aili fill for llic Hnid cniii't or jiuIk«' 'h H'u-h imlcr to ^ivo v deemed to l><> re;;istered owner or owners of Huch mort^uj^e, encumliriince or h'ase ; and the l{e;;i.striu-(ieMeral shall note the fact of such ref^'istration hy nuMuorarnhnn '.nuUr )iis hand on the letters of administration, prohate or other instrument as aforesaid. ii ^Hi PAUT XVII. I'KNAi/rir.H. PflKlltil'S. 140. If any person wilfully nuikes any false statement or declaration in any dealin;^ in land under this Act, or suppresses or conceals, or assists or joins in, or is privy to tho Hupj)rosKinf^, withholding or concealini^ from the l{ej,'is- ti*ar-General, any nititerial document, fact or matter of information, or wilfully makes any false declaration required under the authority or nnide in pursuance of this Act, or if any i)erson in the course of his examination hefore the Court or any Judj^e, or the Itegistrar-General, wilfully or corruptly j^ives false evidence, or if any person fraudulently procures or is privy to tiiu frandulent procnre- ment of any cortilicate of title or instrument, or of any * • ' 844 rilK I'lloVINCr. OK MANITOIIA. ontry in tho U«»K'''tiir, or of any cniun'c or ftltoration in any (tntry in tlio Hc^iHtcr, or ktiowin^^ly iniHlt>ar«'inlH'fori' aiitlioriz»Ml to nM|iiiro explanation or information in rcMpttct to any land or the title to any lan>l undor the opi< Act may ho proMecuted, and all pecuniary penalties or sunn of money imposed hv or under tho provisions of tho name, may he sued for and recovered in the name of tho Pro- vincial Treasurer heforo any court of compt^tont jurisdic- tion, and shall holong to tho Crown for tho puhlic uses of tho Provinco. I'Airr XVIII, OFUCKUS. Hold ofjicc thirinrj phasui'd of Lit'nt.-Gorcrnor-in-Cinincil. 14H. All officers appointed under this Act shall hold office during tho pleasure of theLieutenant-Governor-in-Council. UL JMlOI'i:UTY ACT OK 1888, 845 SCIIKDILK .i. (Serf ion .sr.) {EntUirv m»'moriinduin of' mortijiiijit and encumhrnnci't) rouM or TnANHFKn or moutcjaok, KNCfMimANcK, oil r.KAHr nv KNDOUHKMKNT. I, tlio within niontiontMl C. I)., in coiiHiduration of I tluB (lay pnid to me by X. Y., of , tho rrcoipt of which MUtn I «lo hereby lu-kiiowlcdRc, liercby triiUHfer to hiiu tho mort^ii^o ciuMiinbriuici! or Iuhho, an the cnmr mny bf] within written, to^^cthcr with all my ri^htH, powern. titb-. and iiiteroHt therein. In witness thereof, I hav(f hereunto HubHcrlbed mv imiiii' tliiH day of C. I)., Trnmf error. Accepted, X. Y., Tramfiree. SCIIEnULE B. {Sertion S7.) FORM OF TRANSFER OF PART OF MOIITOAOF. OR KNCUMIUIANCK ilY KNDOUHKMKNT. I, tho witliin mentioned C. I)., in eonsideration of $ this day paid to me by X. Y., of , the n.'ceipt of which sum 1 do hereby acknowledj^o, hereby transfer to him $ of tho mortgage \or encumbrance, an the casr ni'iii he] within written, together with all my rights, powers, title and interest therein, and the sum so transferred shall 346 THE PROVINCE OF MANITOBA. be preferred [or deforrod or rank equally, as the case maji be\ to the remaining sum secured by the mortgage. In witnoag whereof, I have hereunto subscribed my name this day of C. D., Transferror. Accepted, X.Y., Transferee. i «: n ¥ ilJi i! SCHEDULE €. {Sections JO and 57.) CKRTIFICATE OF TITLE. A. B. of {here insert description and, if certificate be issued pnrsuant to any transfer referred to, insert memorandum of transfer) is now seized of an estate {here state whether in fee simple or for life), subject to such incumbrances, liens and interests as are notified by memorandum underwritten {or endorsed hereon), of that piece or parcel of laud known or described as follows : In witness whereof, I have hereunto signed my name and affixed my seal tuis day of Registrar-General. [L.S.I Signed in the presence of ) , the dav of '- " ) SCHEDULE ». {Section 65.) MEMORANDUM OF TRANSFER. I, A.B., being registered owner of an estate {state the nature of estate), subject, however to such encumbrances, ' ' "^n TIIR REAL PUOrERTY ACT OF 1885. 5)17 liens and interests as are notitied hy meiaoranduin under- written {or endorsed hereon*, in all that laud containiu'^ (as the case matf be). (Hire i^tutu rujUtn of iry, in consideration of the sutu o[ $ , paid to rao by V,.F., the receipt of which sum f hereby acknowledge, transfer to the said E.F. all my estate and interest in the said piece of land. ( When a leaser estate then describe such lesser estate.) In witness whereof, I have hereunto subscribed ray name this day of (SignatHre.) Signed on the above named by said A.B. in presence of G.A. il '^ I SCHEDULE K. {Section 77.) MEMORANDUM OF ENCUMBRANCE. I, A.B., being registered as owner of an estate {state nature of estate), subject, however, to such m()rtgag(H< and encumbrances as are notitied by memorandum underwritten {or endorsed hereon), of that piece of land of (Jicre stall- rights of wai/, privileges, raseinents, if any, intended to be con- veyed along with the land, and if the land dealt with contaim^ all included in the original grant or certificate of title, refer theretofor description (f jtarccls and diagrams, otherwise set forth the boundaries and accompany it by a diagram), and desiring to render the said land available for the purpose of ' 'It i" ■ I w mi 'm : ^mi fa"! ■» J I ' 348 THE PROVINCE OF MANITOBA. securing to and for the benefit of CD., of (deacription) the {thf nam of money, annuity or rent charge) hereinafter men- lioned, do hereby encumber the Haid laud for the benefit of the said CD., viuh the {aum, annaity or rent cuarge) of # , to be raised and paid at the times and in the manner following, that is to say : {here state the times appointed for the payment of the sum, annuity or rent charge intended to he secured, the interest, if any, and the events on which stu'h sum, annuity or rent charge shall become and ceas' to he i>ri!fahle, also any special covenants or powers, nh ^ ^ny moii ification of the powers or remedies given to an cncumhrancee by this Act). And subject as aforesaid, the said C D. shall be entitled to all powers and remedies given to an cucum- bmncee by " The Ileal Property Act of 1885." in witness whereof I have hereunto \ signed my name this day of , in presence of {Signature of Eneuni hrancer,) {Insert memorandum of mortgages and encumbrances.) subject to the conditions, restrictions, and covenants above set forth. {Signature of Encumbrancer.) Dated this {Signature of Encnmbrancce.) day of Signed by above named A.B., as encumbrancer and E. F., an L'ucumbrancee, this day of 188 , in presence of X. Y. THE REAL PROPERTY ACT OF 1885. 849 SCHEDULE F. {Section 75.) 1. The said covenantor cov- 1. The covenantor, his ex- enants with the said coven- editors, administrators, or antee {that he will not ivith- transferees, will not, durinr; out leave aaiign or sublet). the said term, transfer, assign or sublet the promisies hereby leased, or any part thereof, or otherwise by any act or deed procure the said premises, or any part thereof, to be trans- ferred or sub-let, without the consent in writing of the * lessor or his transferees first had and obtained. 2. That he will erect such 2. The covenantor, his ex- fences as are mentioned in the ecutors, administrators, or said section. transferees will, during the continuance of the said term, erect and put upon the bound- aries of the said land, or on those boundaries on which no substantial fence now exists, a good and substantial fence. 3. That be will perform the 3. The covenantor, his ex- conditions of the covenants as ecutors, administrators, or required. transferees will, at all times during the saidterm,cuitivate, use and manage in a proper husband-like manner all such parts of the land as are now or shall hereafter, with the i'ii H I y50 TIIK I'llOVINCF. OF MANITOBA. consent in writing of the said IfcSHor or bis tranHfcrees, be broken up or converted into tillnf^'e.aruhvillnotinipoverisb or \vaste tbt- Hume. SCHEDULE «. {Section rT.) MEMORANDUM OF MOnTGAOE. un-. h' I, A. B., being registered as owner of an estate {here state nature of interest), subject, however, to such encumbrances, liens and interests as are by memorandum under-written [or endorstu hereon), of that piece of land {description) part of section , township , range , containing acres, be the same more or less {here state rights of way, privileges, easements, if any, intended to he conveyed ahmy with the land, and if the land dealt with does contain all included in the original grants, refer thereto for descrip- tion of parcels and diagratns, otherwise set forth the bound- aries and accompany it hy a diagram) in consideration of the sum of $ lent to me by E.F., of {here insert descrip- tion), the receipt of which sum I do hereby acknowledge, covenant with the said E.F. : — Firstly, That I will pay to him, the said E.F., the above sum of $ , on the day of Secondly, That I will pay interest on the said sum at the rate of on the $ in the year, by equal payments on the day of and on the day of , in every year. m THE REAL PROl'KUTY ACT OF 188;'. 881 Tliirdlif, (Ift'ir act forth Hpccinl corendiit.i, i/ miif). Ami fur tlic better Heciiriuj:^ of the siiid K.F., the rcpiiymcnt, in manner aforesaid, of the principal sum and interehl, I liercby mortgage to tlic said lil.i'. my estate and intereat in the hind ^^bove deecrilied. In witness whereof, I have hereunto signed my name this day of Signed by the above named A.B., as mortgagor, this day '- of in presence 1 {Si^inuturc of Moitjagor). ofG.H. ) icnp- d- oiin )f the ^crip- dge, ibove day it the m the day day SCHEDULE II. {Section 91.) FORM OP PO'.VKR OF ATTORNEY. I, A. 13., being registered as owner of an estate [hare statv miturc of the estate or interest), subject, liowover, to such eneurabrances, lions a^id interests as are notified by mem- orandum under-written {or endorsed hereon), in {here refer it) schedule for description and eontent>i of the several parcels (f land intended to he affected, rchich schedule must contain reference to the existimj certificate of title, or lease (f such jHireel) do hereby appoint C. D. attorney on ray behalf to {here state the nature and extent of the powers intended to he conferred, as whether to sell, lease, mortiiatie, etc.) the lands in the said schedule described, and to execute all such instruments, and do all such acts, mutters and things as may be necessary for carrying out the powers hereby given, and for the recovery of all rents and sums of motic y that may become, or are now due, or owing to me in respect of the said lands, a"d for the enforciuuent of all contracts, covenants or conditions binding upon any lesijje 8S2 TFi' PROVINCE OF MANITOBA. or occupier of the eaul lands, or upon any other person in renpect of the same, and for the taking and maintaining poHseHBion of tho said lands, and for protecting the same from waste, damage or trespass. In witness whereof, I have hereunto subscrihcd my name this day of Signed by the above named \ A.]i., this I day of j in the presence of X. Y. j ml: i' ■;) ■■ i SCHEDULE I. {Section 9.J.) FORM OP REVOCATION OP POWER. I, A.li., of , hereby revoke the power of attorney given by me to , dated the day of In witness whereof, I have hereunto subscribed my name this day of Signed by the aforesaid A.B. ] on the day of I in the presence of ] (A. B.) , ■ I SCHEDULE K. {Section 9S.) REGISTRATION ABSTRilCT. (Here insert Copy of Grant or Certificate of Title.) Pursuant to the provisions of (insert title of this Act), this Registration Abstract is issued for the purpose of enabling registered owner of the land described Tin: llEAr. I'UOIKUTY ACT OF IHHr). 35:1 in the al)Ovo written ^rnnt or ccrtilioiito of titU', to denl with the above deacrihed himl at places without tiie httiits of tlie Proviiiee of Manitoba., and nliall contiiuu in force from the date hereof initil the day of or until the Hauie be aurrendereil for eaneeliation. In witnesH whereof, I have hereunto sij^ned my name and ullixed my seal of oUice this (hiy of {Si;iH(ititn\) Ite;^'iHtrar-(jenerttl. [L.S. ' SCilKDlLK I.. {Srrtlon IdT.) II I i I .B.) FOUM OF CAVKAT FOUIUnOINO KKi .ISTUATION OR DKAI.INU WITH LANO. To the licgislrar-Cieneral. Take notice that I, A. 13., of [inm'rt (lintrijition^, claiming (Jirri' state the. nature 0/ the mtate or interest elaimeil, and the iiroundii npiui irliieh siith <}ai)n in j'cnnded) in [Jiere drseribe laml and refer to m O 7 M IMAGE EVALUATION TEST TARGET (MT-3) 1.0 IIM 1125 I.I M ||||22 IIM '""^ W 111112:0 1.8 1.25 U III 1.6 Photographic Sciences Corporation V. /. {/ y ,\ ^v ^\^ ^^ :\ \ V ^ «. #?^ #<.'• c,^ 'o^ .^ #^<^ r^-^^ 23 WEST MAIN STREET WEBSTER, NY. 14580 (716) 872-4503 % 858 THE PROVINCE OF MANITOBA. ii!!: 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 as shall become overdue, at the rate of $ per cent, per annum to the time of com- pletion, without prejudice, however, to the vendor's riglit under the last condition. 4. All roads or ways adjoining or leading to or from the land sold or shown on the existing certificate of title to the property, (b) 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 ; and the purchaser shall assume that no person, iho right (if any) to dower of whose wife is saved in the • itiiicate of title, had a wife or has left a widow .utitled to dower, and no objection or requisition shall b© made in respect of any matter contained in this condition, 5. The certificate of title to the property sold shall be produced, and a copy thereof may be made by the pur- chaser or his solicitor on application in that behalf to the vendor or his solicitor, and the purchaser shall, within seven 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 state- ment to be delivered within the time aforesaid shall be deemed absolutely waived by the purchaser ; and the (b) Of course it will be unnecessary to insert this condition where no such roads or ways are set out, and where no dower rights are reserved in the certificate. The condition is complete in itself, and may be adapted to a sale of land under the Act with other lands by adding the words, " under the ' Real Property Act of 1885,' " after "property," and before " tliij areas," &c. THE REATi PUOl'EUTY ACT OF ISSn. 351) purcbiiHcr sliall be considered as havinf,' accepted the title, and it bliall be lawful for the auctioneer to pi',y over and deliver to the said vendor all sums of money paid and acceptances 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. 6. In case the purchaser shall, within the time aforesaid, make any objeciion to or requisition on the title or other- wise which the vendor shall be nimble or unwilling to remove or comply with, and such objeoticfn or rccpiisition shall be insisted on, it shall be lawful for the vendor or his solicitor (whether he 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 re-pay to the purchaser the amount of his purchase money, or so much thereof as shall have been paid, in full satis- faction of all claims and demands whatsoever by the pur- chaser, and also to return all unpaid acceptances given by the purchaser, but without any interest, costs, or damages of any description. 7. 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 euch 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 alcne may proceed in the matter and make a final decision. ] f !!• fell Jl .1 ^y ' 860 THE PROVINCE OF MANITOnA. two n.'ferees be appointed, they are to noiuiimte 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 Ihial. 8. If the purchaser shall fail to comply witli the above conditions, or shall not pay the whole of the deposit as aforesaid, or shall not p;ive the acceptances aforesaid, or shall not duly pay the acceptances j^iven in part payment of the purchase money, or either 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 occa- sioned by such sale, together with all expenses attending the same, sht II 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 pui'chaser ; or the vendor may deduct and retain such deficiency and expenses out of the amount 6f any of the before-mentioned acceptances which shall then have been paid, re-paying unto such defaulter within seven days after the completion of the resah, the residue of such amount, but without any interest, and returning without any unnecessary delay any then unpaid acceptances. Contract. I, the undersigned as agent for and on behalf of , the vendor, do hereby acknowledge that I have this day sold to the property comprised in the foregoing particulars for the sum of $ THE KKAL I'UOl'KUTV ACT 01' 1885. 301 And I, the uiulorsii^'ned , do hereby acknowlcdf^'o that I have this day purchased the said property for the sum above Btated, and I a^,'r(!e to fulQl, in all respects on my part, the above conditions of sale. J)ated this Dr. To amount of Purchase money $ Interest on liills day of .18 Cr. By Cash Bill at Bill at Bill at $ months months months Auctioneer. PurcJiaser. any any and jreby the FOmr OF TRANSFER TO USES. I, of , being registered as the proprietor of an estate in fee simijle in the land here- inafter described, subject to the encumbrances notified hereunder, in consideration of the sum of paid to ine by of and with his consent and by his direction, testified by his signing this transfer, do hereby transfer to the said all uiy estate and interest in all that piece of laud, being such land to be held to and for the use and benefit of the said for his life, and after his decease to the use of his children , aged years, on the day of last , aged years on the .1. 302 THE PROVINCK OP MANITODA. (lay of last, and aged yeai'H on the day of hint, and their hc'irH and tranaforees in feu «implo as tenants in common. Dated the day of , one thousand ei^jht hundred and N.13. — Tlie agcH need only he stated in the case of minors. The transfer may he sit,'ned i)y a minor, either in person, or Ijy his parent or guardian, but such signature will not ho insisted u[ion. .V I, FORM OF DEED TO ACCOMPANY AN ABSOLUTE TllANSFEU INTENDED TO OPERATE AS A MORTGAGE TO THE TRUSTEES OF A BUILDING SOCIETY. It is Aoueed this lay of 18 , between of (hereinafter called the mortgagor), who is (a) a member of " The Society," established under the provisions of the Statute and a subscriber for and the holder of shares therein, each share representing the sum of dollars, and who has applied to the trustees of the said Society to advance to him out of the funds thereof the sum of dollars, being the full amount of his said shares, which they have agreed to do on having the repayment thereof and of the other moneys hereinafter mentioned secured as hereinafter appearing and the present trustees of the said Society as follow : — 1. That the land and hereditaments transferred to the said trustees by the transfer {h) No. , a memiorial (a) This narrative description avoids formal recitals. (b) This reference, which is sufficient for identification, avoiJs setting out the parcels from this transfer. THR UKAI. I'UOl'EUTY ACT OF 1885. 36a whereof wan registered under the " Jtinl I'loprrtif Act, i8eS.3," in volume fol. shall be held ns security for the payment unto the said or tho survivors or survivor of them, or others the trustees or trustee for tho time beinj,' of tho said Society (herein- after calked tho trustees or trustee) of all redemiitiou moneys due and to become due for and on account of the said shares by equal monthly payments of for each share on the day of every month during tho continuance of the said Society, and also of ail subscription moneys and premiums due or to become due in respect of the insurance against lire hereinafter men- tioned, and of all fines imposed or to be imposed for or on account of the said redemption or subscription or insurance moneys respectively, and also for tho payment of all other moneys and for the observance and performance of all the rules and regulations of the said Society for tho time being in force, and by and on the part of the mortgagor to 1)0 paid, observed, and performed for or in respect to the saM sharee or in any manner incidental thereto. 2. Tliat if the mortgagor shall fail, neglect, or refuse for and during any successive months to pay the said redemption and subscription moneys, premiums, fines, and other moneys, or any of them, or to observe and perform the said rules and regulations, or any of them, it shall be lawful for the said trustees or trustee to enter upon the said land and hereditaments and receive the rents and profits thereof, and also to let the same for such term of years and at such rents, and on such conditions as by the trustees or trustee for the time being shall be deemed expedient. 3. That it shall be lawful for the committee of manage- ment for tho time being of the said Society to appoint some fit and proper person or persons as receiver or receivers, to :;i;i Tin; i-uoviNcr: of mamtoda. vi {) t c'litiT into and ui)()n the siiid land and lu'reditaiiH'ntH and to receive) and take the i-entn and prolltH thereof, and pay und apply the same in or towards satisfaction of all charj^on for collection, and then of the said redemption and sub- Hcription nion(>yH, priMuiuriiH, lines, and other moneys aforesaid. •1. That in case of hucIj defanlt as aforesaid, and if the rt;nts and profits of the said land and hereditaments shall 1)0 insnlllcicnt to pay and satisfy the piirjjoses last afore- said (of which default and insulliciency the trustees or trustee shall th'cide without the eonstiut or concurrence of the said luortf^'aj^or, his heirs, executors, nc from such sale or sales, and the rents and profits which shall come to the hands of the trustees or trustee, shall be applied in the iuvst place in paying, satisfying, and reimbursing all costs, charges, and expenses attending, or which shall or may be incurred on account of the collection of the said rents, and commission 'Mir, ui:ai- iiiopkuty act or IHHf). 805 to fin ngent for collecting tlu; naino ; niul in or about tiie inftkin^; iind ciirryinj< into ciToct every such hh\v (including all coHts and expcnHcs of ()l)taining poHwcHHion, or enforcing any contract for nalc, or executing tlu' afortsnid powern, or in relation tlicnto, or which hIkiU bo occasioned hy the non-payment of all or any part of the moneys hereby secured;) and in the next place! in satisfying all such redt'mption and suliscription moneys, premiums, IhieH and other moneys as shall then be, or shall at any time or times thereafter become due, owing, payal)Ic', or imposi'ij for or in respect of the said shares of the said mortgagor of and in tiie said Society, under and by virtue of tlm rules and regulations of the said Society, or of any stipulation herein contained. ('. That in the event of any such sale as aforesaid taking place and being completed, all redemption, subscription and other moneys wiiich may at any time afterwards become due or payable in respect of the said shares, whether under and by virtue of these presents or other- wise, shall be considered as duo and owing at the time of such completion, and shall be fully deducted and paid out of the eale and other moneys received under the powers herein contained ; and the said trustees or trustee, or the secretary for the time being of tl.ie said Society, sliall ascertain and determine the amount of such future redemp- tion, subscrii)tion, and other moneys as aforesaid (which moneys respectively shall be considered as then actually due), and the amount so ascertaini'd and determined as aforesaid sliall be innnodiately retained and placed in the Society's bank, to the account of the trustees or trustee of the said Society for the use and benefit thereof (<■)• (f) As to the terms upon which the inortgnRor of a huildiriR society is entitled to redeeiii, see Singynve \.' Pope, i D. Cr. McN. (N: G., 783 ; Musely V. Baker, 6 Hare, 87 ; and on Appeal, i Hall & Twells, 301 ; Fleming v. Self, 3 D. G. McN. & G. 997; Smith v. Pilkiiigtou, i D. G. T. & J. 120 ; and HaniUey v, Farmer, 29 Ijeav. 3G2, kk 1 auG TrrR I'UOviNCK OP MANtroriA. U 7. Tliiit, Hiihjdct to thc( Hovenil piiymciitK and (IfdiiclionH iit'orcHaid, tho rcHidiic! or HiupIuH (if any) of thu Halu, moiioyB, I'ontH, and profits Hliall l)u paid unto thu baid niortKii^or. 8. That tho rcroipt in writinj,' of tho said truHtt'OH or trustco for any moneys which shall lu! payahlo to thoni or him by virtuo of tht'so presents Hhall be r valid diHchar;,'o for all such niont^ya, and shall I'tTt-'ctually release? and exonerate the teiuvnts, purchasers or other jjersons paying the same, from all responsibility in respect to the aiJplicia- tion thereof, and from being accountable for the misappli- cation thereof, and no sncli person ahall be obliged to inquire whether such default has been made or such insulUcioncy exists as aforesaid, or into any other matter or thing connected with the regularity of any sale or sales or be affected by express notice from the said mortgagor, his heirs, executors, administrators, or assigns, or any other person that no such default has been made or insulHiciency exists, as aforesaid, or that such sale is unnecessary or improper. 9. And the said mortgagor, for himself, bis heirs, execu- tors, and administrators, hereby covenants with the trus- tees, that he, the said mortgagor, his executors or admin- istrators, will pay unto the said trustees or trustee all redemption and subscription premiums, lines and other moneys hereinbefore mentioned, at the times and in manner hereinbefore appointed for payment of the same. And also will pay all other moneys and observe and perform all the rules and regulations of the said Society for the time being in force, and on the part of him, the said mortgagor, to be paid, observed and performed for or in respect of the said shares, according to the true intent and meaning of these presents. 10. That it shall be lawful for the secretary for the time being of the said Society, so long as any money shall remain TIIK UKAI. I'llOI'KllTY At'T OF 1H8.'. 'M\7 imttirs of llio MuitI ti'tistrcH or trustee, tlie ImiUlinKH rvhicli now iiri', or luTeiiftcr may Ik', on the miiil land or any part thereof, ami to continui' hucIi iiiHuranru from time to time tor hucIi amount uh the com- mittee of manaf^cmeiit of the Haid Society may (hicm nt'oes- uary and proper. And tliat the said mort^a^or, his hrirs, execnlorH or achniiiibtrators, uill at oacli " monthly " or other nu'etinj^, as the case may he, of the said Soeiety next after sueli insurance! shall he etTected or the premiums thereon luivo hecome due or payahle, pay unto the said Bccretary, or unto the said trustees or trusieo, all such sums of money as shall he expended or hccomo duo or pay- nl)le in or ahout 8U(!h insuraneo or the premiums thereof; and in case of tin* non-payment thereof, or any part thercfof, he, the said mortf,'af^or, i)is heirs, executors or admiuhtra- tors, shall pay to such trustees or trustee, the same tines as are payahle upon redemption moneys in arrear for a similar amount or after the same rate. And all such smns and fines until paid shall he a eharge upon the said land and hereditaments in like manner as tlie moneys herehy secured. And such lands and hereditaments shall not he redeemahle until further payment. 11. That all suras which shall he recovered on any such insurance shall forthwith he laid out and expended under the direction or approval of the committee of management in re-huilding or reinstating the premises insured, or such part thereof as may he destroyed or injured hy fire, in order the better to secure the due payment of the said redemption moneys, fines, and other moneys aforesaid. 12. That the said mortgagor, his heirs, executors or administrators, will, within days after the execution (rf) This power would not authorise an insurance covering addiiional risks such as injury from tlood or tempests, as the jiayment i f a higher jTcmiuin riii|;ht be attiihntod to tlie adiliiional risks, and if the nature or locality of the property shoidd render suih insurance desiraiile it slu.uld le specially provided f^r. f/ i M 1^' . „'l 14 M\ «"!■; 1:1- 'i' I' il 9(iA TIIK I'ltoVINCB Of MANIToilA. of tli('M(^ prcscntH, <';ivo iiml ddivci to the Htcn'huv f«>r tlic tiiiu' bt'iiij,' of tilt; Miiitl Society, ii HtiitiintMit in writing' of luiy trii any such notice ns aforesaid, ho or they shall pay to t!io said Society a t\no to be tixed by iho committee of nianaf^enient of not lesH than , nor more than , in respect of every HJuiro held. In witness, &:c. Fomr roil cukatiox of an eashmknt Arrtm- TKXANT TO KKKKIlOfiD liAND WilKN NO TilANSFKU OF soil. JS TO BK MADE. r, A. 13., of bein}4 re;j;ister(!d as tho i)ropviotor of an estate in fee fiinipio in the land i-econdly iiereinaftcj described, Huhject to the encumbrances notified hereunder, in consideration of the Bum of paid to me by C. D., of do hereby transfer and i^n-ant unto tho said C. D. and his trausferrces in fee simple full and free right and liberty to and for liim and them, registered proprietor or proprietors for the time being of All Tiiat, &c., or any part thereof, [and his, her, and their tenants, servants, agcnds, work- men, and visitors' to go, pass and repass at all times here- after and for all purposes and either with or without horses or other animals, carts, or other carringes into and out of and from the said hind or any part thereof througli, over, and along All That, &c., or to use for the purpose of TiiR UKAti i>noi>r,nTY act ok iHHfi. 8(]1> •Irniniii^^ tin* Iimd llrht hrreiniiftor «lrMcril)«(l All Tliat, Sec, or to UM' All Tlnit, \c., lu'in^' tlio I'lmtmi hitif of tho liitul M|)()ti wliioli a Willi Htiimlrt and which wall it in intended hy hotli ;;ratit()r mid j^nintee hIuiII he a party wall together, alHo with the usu nf the wall ui'uctud uii the top of the Huid party wall, kc. Which piecoH of land are delineated, and that firstly doHcrihed in coloured , and that Heeondly deHcrihod is coloured , on the Uiiip in the niari^in hereof. Dated, kc. FOiai OF SUKltEyDKll OK K:.oKMKNT. I, A. D., of Itfing rtKiwtered aa tho proprietor of tho piece of land partici'larly descrihed in the Certificate of Title entered in the Uoj^ister Boo! , vol. fol. toj^'olher with *he ri^^'ht of carriage way over the road coloured hrown on the 11114) •" t''^' margin of the said certificate, in consideration of the huui of paid to me hy C. I)., of do hereby surrender to tho said C. D. all that my right of carriage way over tho said road. Dated the day of 18 Signed by the said A. B., in the pres^nco of Signed by the said CD., ) in the presence of j A.B. CD. 21 i ' f 1 ll.) i 'li i t Li 870 THE PROVINCE OF MANITOBA. FORM OF NOTICE TO MORTGAGOH UNDER SEC- TION 79 OF THE "REAL PROPERTY ACT OF 1885," To I heieby require you to pay the money owing on a mort- gage from to registered in the Office of Titles on the day of 18 and numbered Dated the day of 18 To I hereby require you to perform and observe the cove- nants expressed and by the " lieal Property Act of iSSo'^ dcchired to be impHed in a mortgage from to registered in the Office of Titles on the day of 18 and numbered The following covenant has been broken [state it.] Dated the day of 18 If the mortgagor be dead or insolvent, and his executor or administrator, or official assignee, have not been regis tered, it will not suffice to serve the notice on the executor administrator or assignee, but the notice should be ad dressed to the mortgagor and all others whom it may concern, and be left on the mortgaged land. If the mort gage money be payable on demand, a demand must be made before service of notice. m [(, I THE HEAL PROPERTY ACT OF 1885. 371 FORM OF STATUTORY DECLARATION PROVING DEFAULT BY MORTGAGOR. of do solemnly and sincerely I. declare 1. That I am the mortgagee named in a certain mort- gage from registered in the Laud Titles OtKce on the day of 18 and numbe'xu 2. That default was made by the said in payment of the principal sum of secured by the Haid mortgage on the day therein appointed for pay- ment thereof, and such default was continued until the day of 18 [day of sale or signature of transfer] [or] That default was mado by the said in payment of the sum of being an instalment or part of the principal sum of secured by the said mortgage on the day therein appointed for payment of such instal- ment or part, and such default was continued until the day of 18 [or\ That default was made by the said in payment of the sum of being the quarterly payment of interest on the principal sum secured by the said mortgage, which became payable on the day of 18 and such default was continued until the day of 18 [or] That default was made by the said in performance of the covenant for insurance contained in the said mortgage, and such default was continued until the day of 18 And I make this solemn declaration, conscientiously believing the same to be true, and by virtue of the Act passed in the thirty-seventh year of Her Majesty's reign, entitled " An Act for the Suppression of Voluntary and Extra Judicial Oaths." :i J ' K '1 1^ ] 872 THE PROVINCE OF MANITOBA. this day of Declared at before me Should the declaration be made by any person other than the mortgagee or his transferee, the declarant must state his means of knowledge. FOEM OF STATUTORY DECLARATION PROVING SERVICE OF NOTICE ON MORTGAGOR. of do solemnly and sincerely I, declare That I did on the day of 18 serve on a notice in writing, of which the docu- ment hereunto annexed and marked " A " is a true copy, by delivering the same to him personally [or] That I did on the day of 18 , leave on the land comprised in a mortgage from to registered in the office of Titles on the day of 18 , and numbered a notice in writing of which the document hereunto annexed and marked " A " is a true copy [or] That I did on the day of 18 , register and post at a letter containing a notice in writing of which the docu- ment hereunto annexed and marked ** A " is a true copy. That the said letter was addressed as follows : and that the document hereunto annexed and marked " B " is the post office receipt for the said letter. And I make this solemn declaration, conscientiously believing the same to be true, and by virtue of the Act passed in the thirty-seventh year of Her Majesty's reign, entitled "An Act for the Suppression of Voluntary and Extra Judicial Oaths." THE REAL PROPERTY ACT OF 1885. 373 FORM OF CAVEAT TO BE USED WHERE THE REGISTERED PROPRIETORS ARE IN REALITY MORTGAGEES ONLY. To the lieijisirar-Gcncral or Master of Titles. Take notice that I, of claim an equitable interest in All Th.it {here describe the land) under and by virtue of a contract for sale made by with me, the said and dated the day of 18 which land is now standing in the Register Book in the names of and who are mortgagees only of the said land, the said being entitled to the equity of redemption therein. And I forbid the registration of any person as transferee or proprietor of and of any instrument atfecting the estate or interest of the said registered proprietors, unless such interest shall be expressed to be subject to my claim. I appoint as the place at which notices and proceedings relating to this caveat may be served. Dated this day of ' 18 Signed in the presence of EXAMPLE OF SPECIAL COVENANTS IN A MORTGAGE. And it is hereby agreed that so long as any money remains owing on the security hereof the said mortgagee shall be entitled to the custody of the certificate of title to the land hereinafter mentioned. And it is hereby declared that months {not less tlian one month) shall be and are hereby fixed as the period 374 THE PROVINCIS OP MANITOBA. of time for which the default mentioned in the 79th section of the " Real Property Act, 1885, (Man.) " must be continued before the service of the notice in the said section mentioned, And that days shall also be and are hereby fixed as the period for which such default must continue after the service of the said notice before the power of sale given by the 80th section of the said Statute can be exercised. I ti ili r I FORM OF MORTGAGE TO INDEMNIFY A GUARANTOR. I, A. B., of being registered as the proprietor of an estate in fee simple in the land hereinafter described, subject to the incumbrances notified hereunder, in consideration of C. D., of (hereinafter called the mortgagee) having this day at my request signed and given to the Bank of a certain letter of guarantee (a copy of which is contained in the schedule hereto) Do hereby covenant with the said mortgagee — Firstly, To pay to the said Bank the principal sum of $ owing by me to the said Bank in manner following, that is to say, the sum of $ on the day of , and the sum of $ on the days of the months of and next respectively, and will thenceforth pay to the said Bank the balance of the said principal sum, and all interest payable in respect of the said sum, by instalments of not less than § in each and every calendar month, until the whole of the principal and interest moneys payable by me to the said Bank shall have been fully paid and satisfied. Secondly, To pay to the said mortgagee or his transferee on demand THE UEAL PROPERTY ACT OF 1885. 375 all moneys, costs, damagee, and expenses whatsoever, which he shall at any time hereafter pay, incur, or suffer, on account of the signing and giving by him of the said letter of guarantee. And for better securing the payment in manner aforesaid of the principal, interest, and other moneys hereinbefore covenanted to be paid by me, 1 hereby mortgage to the said mortgagee all my estate and interest which I am entitled tu or able to transfer or dispose of in All that piece of land, being part of of county of more particularly described in the certificate of title entered in the Register Book, vol. fol. The Schedule before referred to. To the Bank of In consideration of the above Bank making anv advance to A. B., of either by way of overdraft, discounting bills or promissory notes, or otherwise, or by all or any of those ways and means, I hereby undertake to pay to the said Bank all such advances and all debts now owing or accruing from him to the said Bank to the extent of § and interest on the same respectively, in case the said A. B. shall make default in payment thereof respectively, or of any part thereof respectively, on demand, and further agree that tli'e said bank may advance any amount beyond such sum of '$ to him, and that the said Bank may give any time to take any security from and accept any composition from him or any parties to any bill or note discounted by the said bank as aforesaid, without prejudice to the claim of the said bank under this guarantee. This guarantee to be a continuing guarantee irrespective of any sum or sums which may be paid into the account of the said A. B. from time to time, and to remain in force until cancelled by our written authority, 370 THE PROVINCE OF MANITOBA. tho amount then tliio to be Hul>ject to this guarantee and secured tlicreby. Dated this day of 18 Signed by the said A. B., in the) presijnce of ) Signed l)y the said C. ])., in the) presence of I 'f 1 1 4 ill FOliM OF STATCTOUY DKCLAR.VTION IN SUPPOUT OF APPLICATION TO UKGIST]-:U THE HEAD OK IIEPIIESENTATIVE OF A KELIGIOUS DENOMINATION. In the matter f)f the of the uppUcation of We, of a' X of do solemnly and sincerely declare — 1. There is a religions denomination in called that it consists of and possesses among others a church or chapel at called 2. That by the usages of such denomination the Head or licpresentative thereof is appointed by that on the day of 18 the lleverend was duly appointed Head or Kepresentative of such denomination by the title or office of by that the said Reverend is now the Head or licpresen- tative of the said denomination, and the .^pkl is one of the directing body of such <}■ ; -'itation. And we make this solemn declaratiur . .' rt-ientiously believing the same to be true, iinJ virtue of the Act passed in the thirty-seventh year of Her Majesty's reign, entitled " An Act for the Suppression of Voluntary and Extra Judicial Oaths." Declared at TIIK RKAL I'UOI'KIITY ACT OF 1885. 37' FOinr OF STATUTOHY DECLARATION in' THE SECHETAllY OF A BUILDING SOCIETY. In the matter of the '* Itrul Vrnpcrty Act of L'^S''j," And in the matter of the cortiticato of title entered in the ri('':;i8ter Jiook, vol. fol. I, of do hcrehy solemnly and sincerely declare — 1. That a certain society styled the Benefit Buildinfj; and Investment Society was formed and rcj:;is- tcred imder the provisions of the and at the time of the formation of the said society and the persons named in the ahove-nientioned certificate of title were appointed trustees thereof. 2. That the land mentioned in the said certificate of title was transferred to the said and and as such trustees as aforesaid to secure advances made by the said society to one of its members, and the said and except as members of the said society have no interest whatever in the said land. 3. That the said society has since the certificate of title was issued been registered and incorporated under the provisions of the 4. That I was at the time of the formation of the said society under the provisions of the and have been ever since the duly appointed secretary of the said society. And I makr this solemn declaration, conscientiously believing the same to be true, and by virtue of the provisions of an Act passed in the thirty-seventh year of Her Majesty's 378 THE rUOVINCR OF MANITOBA. i-vfi . f, rpign, cntitU'd " An Act for tliu Suppression of Volun- tiirv avi\ Extra Judiciiil Oaths." Declared at before mo This form can ha varied to suit the circumstances. The above form is used in Victoria under the SuccesHory Trusts Act, and may be of use here, jiarticularly where the number of persons who can be registered are limited, as in the Land Titles Act. See Rule 37, page 1S4. CLAUSE IN POWER OF ATTORNEY RECOM- MENDED BY OFFICE OF TITLES. The following; clause will he found to facilitate the passing of instruments signed hy attorney : — " And also for me and in jny name, and on my hehalf to deal with any land, lease, mortgage, or charge of which I now am or shall, or may at any time or times hereafter be the registered proprietor, either solely or jointly, with any other person or persons, as effectually as I could do in all respects, and tj sign any instrument necessary to give effect to any such dealing." FORM OF AFFIDAVIT OF APPLICANT FOR A POSSESSORY TITLE. I, Land Titles Act, 1885. ,of make oath and say — 1. That the description contained in my application is a true description of the property of which I am in possession under deed from to me. Dated the day of 188 . TnE WRAt pnopRn-nr act of 1885. 879 2. That I am woll entitlod for my own benoHt to an estate in fee Himplc in said lands, Hul)j'.!ct to a niort(:(aKe thereon to (dear nhemort(infie), mentioned in said application. 8. That I am in actual poHsoHHion of Raid landH. 4. That such possession is in accordance with my title to the said land. a. That I am entitled under this Act to bo rogisterod as owner of the said land. (). That the deed now produced and shown to me and niarkod " A," comprises the last conveyance or other docu- ment under which my title is derived. Sworn before me at \ in County | this day [" of A Commissioner in IF. C. J. A confirmatory affidavit from the solicitor of the npi)li- cant must bo made, which may bo readily frame;] from the above form. Vide llulea 3, 4 & G, Land Titles Act, pages 1G8, 170. ■■„i^' There havinp; been no provision in the Land Titles Act of 1885 for a short form of Bar of Dower Insurance Cove- nant, the following is suggested : — " And the said wife of the said hereby bars her dower in the said lands." " And the said {the mortfjapor) hereby covenants with the said {tJie mortgnpee) that he will insure the buildings on the said lands in a sum not less than dollars. It is liereby agreed that the above bar of dower and insurance covenant shall be read as if made under the Act respecting Short Forms of Mortgages (or Conveyances, in the case of transfer).'' Il 'r.i 4'. . ^^i I. ft; l'&-v' .1' I If: s j ! (s.v il :)H() Till". I'llOVINCK Ol' MVNITOIIA. Aiiotlior foiMn for l»iir of dower in a trannfor would l»t> Hiinply. " Ai»d till! Hiiid wif(! of till' Hiiid liorchy rcleustiH to her dower in the uiiid IiuuIh." i'OUM l)F DISCIIAUGI': OF I'AllT OF M0KT(1A(]K. IMioviNCK OF Ontaiiio, Dominion ok Canada. TO wit; ) which iiiortj^iif^e beiirs date* tiu; To t\ui Muster of Titles of the Province of Ontiirio : I (innrrt miiiir of morttfniior), do certify that Simoon Ih'iiiiui Jiuues, of till' City of Toronto, Fs(iiiire, hath Kutislied the Hiiiu of dollais, jhirf ofilic, inoncjfH inantinmul in a certain uiortt^af^i! made hy the said Sinuoii I reman JameHto me day ol" A.I). 188 , and was re^'istered in the llegistry OtVice for tho on the dav of A.I). 1H8 , at 10 minutes past 1*2 o'clock in the afternoon, in Liher ii for the Township of York, as No. ll>,10'2, and which is the mortqaj^e mentioned in the certificate of title issued hy the ^faster of Titles to said Simeon lleman James of jjarcel ') for tiie Township of York, and that said mort.^'aj^e has not been assi;^ned, and that 1 am the person entitled hy law to receive the money: and that such part of the lands as i.- herein Lot Land Titles Office at Toronto, and that the said Lot is therefore dischariiod from the said mortsa^e. partici.iarly described, that is to say : as marked on the plan M 2, hied in the Witness Witness, hand this day of A.D. 188 I III; iiKAi. iii(>i'i:uTY ACT or iHHf). CoiNTY OP TO WIT <.f t}l(< tliii County of of !)H1 in iimki! oiitli iiiid Hiiy : I. Tliiit I waH jx THonally prcHMit nnd diil ncc- tin within nTtilii'iitc of (liKclmr^'c of niorti;iij^'i' duly Hi;.;ii('d and t'MMMitcd l)y Aiij^'inta Mlizahctli Kos" hy her attornoy, Charh's Mohh, otic c.' the parLicH thereto. '2. That the huI I ciii'tiilcatu of diHchargu of mortgage waH executed at !{. That I liiiow tho Haid CharlcH Mohh, and also know the Haid Aii^'UHta Mii/ah(!th Uohs to he the person iiaiued in tlie mortgage referred to in th(! H.iid ccrtilicate. ■I. That I am a HuhHcrihing witncHH to tlio Haid cortificato of discharge of mortgage. Sworn before me at tho of of day of of our Lord 188 in the County thJB m tho year ii ,1 CninmiHsionrr, etc. RULE 31, IMPF.RLVL ACT. Conditions. Every application to register conditions as annexed to land about to be registered, or to any registered land about to be transferred, shall be made, in case of land about to be registered, either by the person who, by himself or nominee, is about to be registered as proprietor of the land, or with his consent in writing duly verified ; and in the case of land about to be transferred, either by the person U82 TIIK niOVINi^K OK MANiroHA. M ■ iK'timlly i't»(;iHti!ro(l iik proprii'tor of tin- liitid, witli tho coii« Hriit in writin^^ duly V( ritiiil of tlio intciKhd t.nui«fiiii'i', or liy HMcli triii)Mft'r»'n, with tlut ooiiHrnt in wriiinj^ duly vi-rilU'iI ()( till! iV'^isttircd propiiiitiT. If tlm upjiiication irliilc In lliu Icasiduld livnd about to l)U rogiHtci-rd, or to liitid iilioui to 1)0 roglHti^i'iid with lui ahsolutu or i|Uiiliti<<(l title, the ripplii'atioii and conditioitH hIiuH l)t> in nccordanoo with the titlt' ovaruincd by tliu rof^iHtrar, and if tho application relate to any land about to bo transfirrod, th<< conditions Mhall be in acoonhinoo with any conditiourt already re^^iHtiTod. In any euHo of eonditionH bein;,' annexed on applieation under the HOth Hoetion, or on tirnt rcj^iHtration an ariKinj,' on the examination of title, a printed copy of tho eonditioiiH, or of tho docuiuont contaiiiin<^ them, hIuiII bo left in the ollice, and the re^iHtration of Huch C( nditions may be nuule by referenco on tho repiHtor to such printed copy. Dn tho re<^iHtration of any leaHohold land held under a leuHc! containinjj; a prohibition a;4ainst alienation without liceuHo, proviHion shall be mii h; for proventin;^ alienation without such licouHo by an entry on tho rej^inter of a rofor- enco to such j)rohibitio.i. ADVEIITISKMENT. Real Property Act Notices. Whereas tho persons named at tho foot hereof have each respectively for himself made application to have tho lands set forth and described before his name at foot hereof, brought under the operation of " The Ileal Property Act : " Notice is hereby given, that, unless caveat be lodged with the Eegistrar-General, by some person having estate or interest in the said lands, on or before the expiration of the period herein below for each case specified, the said pieces of land will be brought under tho operation of the said Act ■(;' « TUB RKAI. I'UOI'KKTY ACT OV iHflu. 88!) iiH liy law dirccttid. hiu^'riiniH diliiiv tiit;^ tluHr ptircclN of luiid limy hv iiiH|K'c't('d iit the Liiiids 'I'itli s Otlicc, \Viniii|i('^', iitid in tliM oDicuH of ihu ttcviral CorponitioiiH or hiHtrirt Coiincilrt ill wliicli tlic liiiidH iiru Hituiitfd, or ut thu utliou of tile liociil Court nt'urt'Ht tlicicto. No. of Apldic'ii- tioii. I'roiKity. Niimo. Piito Ujitonnd iiicluHJvt' of K.'Hid.iUM'. ^vhich nivi'Ut iimyht'lodi^'i'd, 1 NOTICE OF DKATil (SVA\ SUl'lil WALKS.) Ai>i)lif(iti(>n to hi- iiijiHtvi'i'il proprietor ninlrr the Jfnil Proficrtji Act, of the rntati' iiml iiitcrfHt of ti tUwcuHctl inortiiiKjri- or linHCf. In conH»'(iuouci' of tlic (lt;itli of tlio iiiiiui.'d and dt',scril)t'(l in lueiiicnuidum of dated day of 1H8 , from and rt'^ji.storcd No. , I, of tlio said hereby apply to liavo the estate and interest of the said in the above-mentioned transmitted to mc as siieh the sai( J ) 388 THE PUOVINCK OP MANITOBA. Tmmfcr of a ripht to construct a watercourse. Transfer No. from to as com- missionors of the central board of main roads of a right to construct a watercourse on portion of the above land. Produced the day ,188 , at JJeputy KegiHtrar-Cieneral. Transfer of undivided vioieti/ htj inortgaaee. Transfer No. from as mortgagee, to John Smith, of gentleman, of the above undivided moiety of the above-mentioned land. Produced the dav .188 , at Deputy Registrar-General. Transfer bij trustees of society as tHort<)a(iecs, trustees haviny been changed. Transfer No. from (hero insert the names of the new trustees) the present trustees of the as mortgagees to of the within land. Produced the day , 188 , at Deputy Pegistrar-General. Cancelled. Deputy Iteyistn r r-General. A new certificate of title issued, vol. fol. Deputy Registrar-General. Transfer of a right of way. Transfer No. from to of a right of way over the within land (or portion of the within laud). Produced the day , 188 , at Deputy Pegistrar-General. A new certificate of title issued for the right of way com- prised in transfer No. vol. fol. Deputy Registrar-General. THK REAIi PnopKUTY ACT OP 1885. 389 Transfer of right of way to one person and fee simple to another person {subject to said right). Transfer No. from to John Smith, of the .'ibove land, reserving and granting to a right of way over portion of the said hmd as delineated in Transfer Mo. Produced the day , i88 .at ,-, „ , Deputy Pvegistrar-General. iydncelled. Depuiij ReriiHtrar-Genenil. A new certificate of title issued vol. fd. Jh'putii lieifistrar-Oenernl. rransjcr of fee except minerals. Tr%^,.. < 300 THE PUOVINCE OF MANITOIJA. remainder expectant in the above laud to Henry Smith and Mary Smith as tenants in common (as regards the said Mary Su ..th for her own separate use). Produced the day .188 , at Deputy Rcf^istrar-Cieneral. Cancdlcd. Dejyutij liegistra r- General. A new certificate of title iasncd vol. fat. Deputy Iie(ii8trar-Gencral. Transfer of part minerals. Transfer No. from to John Smith, of one tenth part of the minerals in the above land. Produced the day , 188 , at Deputy Registrar-General. A new certificate of title issued for the above minerals, vol. fol. Doputii Rcf)istrar-Gener?G of tho above mortgaf^o No. by rocoipt ondorBod thoroon dried tho day of ,188. Plntored tho day , 188 , at Di'puty lU'giHtrar-dt'iural. Pincharnc of n mort'jmji' Inj m'parate instnuiient. T)ischar«o of tho above tnortp;aKe No. by memorandum attached thereto dated tho day of , 188 , Entered tho day , 1S8 , at Deputy KegiHtrar-CJonoral. I'artitil iliscJtdriie of iiiid. The within land has been disehar,o;ed from the whole of tho principal sum securod by the above mortgage No. as appears by endorsement thereon dated the day of , 188 . Entered the day of 188 , at Deputy Uegistrar-Cioneral. Partial discJiarfie {monei/). The above mortgage No. has been discharged to the extent of as appears by endorsement thereon dated day of , 188 . Entered the day ,188 , at Deputy Kegistrar-General, THK ItEAL raoi'KIlTY ACT OP 1885. iiiiU Piiitidl iliachartje {land and money). The above mortgage No. has boen diHcliiirRcd to tlio extent of amd (a portion of) tlio abovo land Iuih been diHchaigcd from tbe whole of tho principal sinn Hocined l)y the within niortgago No. as appoarH by cndorKcniont thcroon dated tlu! day of , 188 Mntcred the day , IHH ' , at Deputy Ue^iHtrar-CJeneral. } Lcdsi'. Lmsr No. from to John Smith, of (j)orti..ii of tho above land) the above land. Term years from the day of IHH . i'rodnced the day of , 18H , at Deputy liegistrar-General. Lddse off/round Jhor and cellar onhj. Lrnse Xo. from to John Smith, of the above land, ho far only as regards the <,'round floor with the cellar thereunder belonging to the buildings erected thereon. Term years from the day of IHH . Produced the day of 188 , at Deputy liegistrar-General. Under-lease. Under-lease No. from to John Smith, of the within lease No. (of portion of the land comprised in the within lease No. ) Term years from the day of 188 . Produced the day of , 188 , at Deputy Registrar-General. r :)IM TlIK PUOVINCK OF MANITOllA. Tranafir of Icnaii bif cndoracmrnt. 'rtHUHfor of tho al)ove Icuho No. hy ornlorHtMiicnt tlicroon tlatod tho day of IHH , from to John Smith of goiitlctnan. Eiittrod tho day , 188 , at lk\ iity lU'RiHtrar-Cionoral. Tranftfer of lease hi/ aep/ the intestate. Pursimnt to application No. .Tohn Smith, of gonticiuan, is Heiscul of an estate in foe siinph.' in tho within hind as administrator of the within natncd who died intestate on tho as iipi)ears hy letters of aihninistration dated the Produced and entered tlie day of , 18H , at Deputy llcf,'istrar-General. Transmaaion as administrntor with the will annoxcd. Pursuant to application Xo. John Smith, of Rcntleman, is seised of an estate in fee simple in tho within hind as administrator with the will annexed datod tho of the within named who died as appears hy letters of administration dated tlie , 188 . Produced and entered the day of , 188 , at Deputy Register-General. m aoo TtlK fllOVINCK or MANITUUA. I'he ri'i/i^tfr th" iittnrnfii of f.ti'cutor apiutiutvil innirr ivill, I'lirnudiit to itpjiliriition So. .lolin Sinitli, of goiitloniaii, is entitled to an cHtatu in foo Hiiiiplo In the within land as tlio atlorncy of tho oxecutor natued in the will of Iho within niuned dated thu who died on the nH iippeaiM hy prohatc dated the Produced and (•i\torod the oputy Ite^istrar-C lorieral. Writ { livri hieiaH). Writ undoi" seal of the Supromo ('ourt dated the of , IHH . Olliee copy produced tho of , IHH . Entered the day of , 188 , at No. I )(iiuty I le^istrar-( I oncval. day (lay M'rit (rciiililioiii f.rponas). Writ under seal of tho Suiirenie (!ourt dated the day of , IHH , eoniinandinj,' the sherilT of the Province of South Australia to sell real estate of the above named Oflice copy produced tho day , 188 , No. I )eputy Ke^istrar-Cionerul. Writ over IcnHf. Writ against the goods, cliattels and land of the above named lessee. Under seal of the Sui)renie Court dated the day of 188 . Oflice copy produced tho day , 188 , No. Deputy Registrar-General. I'h 'i T»IK IlKAI. I'liOI'KllTY ACT OK lHH/5. IH$charei)uty Ke{,Mstrar-(icneraI. DiHchnriir of lis jx'mh'ux. Discharge of the ahove lis pendens No. hy memoniMduni attached thereto No. dated the day ihh Entered the day , 188 , at I>eputy liegistrar-Generul. Vi m 11 398 THE PROVINCE OF MANITOBA. Insolvency clauae 09 of Act to register assUfnecs (or trustees) as proprietors. The estate of the above named in the above land was transmitted to of and of as trustees (or assignees) of the said as appears by deed of assignment dated the day of , 188 . Produced to me and entered the day of at No. Deputy Registraz-Genenil. TransiiiiHsion of viortgar/e to administrator with the uill annexed. The above mortgage No. was transmitted to the administrator with the will annexed of the above named dated the day of who died on the day of as appears by letters of administration dated the day of , 188 . Produced to me and entered the dpy of , 188 , at No. Deputy Registrar-General. Applicatioti to he registered co-proprietor in right of irife. Tlie above named was married to of on the day , 188 , as appears by certificate of marriage No. and the said is registered as co-proprietor in right of his wife. Produced to me and entered the day of , 188 . Deputy Registrar-General. THE REAL PROPERTY ACT OP 1885. 890 Power of attorney. (1) Power of attorney No. px educed the day of , 188 , at Entered the day of , 188 , at Deputy Registrar-General. Power of attorney, {2} Power of attorney deposited in general registry office No. of Entered the day ,188 , at Deputy Registrar-General. Caveat. X. No. dated the day of , 188 P) oduced the day of , 188 , at Deputy lier/i. itrar- Genera! Withdraical of caveat. The above caveat was withdrawn on the day of 188 ,at No. Dejjuty Reyistrar-Gcneral. Certificate of death. The above named died on the day of No. Produced the , 188 , as appears by certificate of death day , 188 , at Deputy Registrar-General. 400 THE PROVINCE OF MANITOnA. Certificate of mnrridpc. Tho within iminefl was married to on the clay of , 188 , as appears by eerti- licato of marriage No. Produced the day ,188 , at Deputy Kegistrar-Gencral. r Partial surrender ot" least'. The above lease No. has been aurrenderod as rc4, it was ar}j;uc(l, Hupportod that view — "A mem- orial of any transfer or lease croatiiij^ any easement over or upon or atfectinfj any laud under the operation of this Act, Hhall be entered upon the cohnnn of the rop;iHter book constituted by the f:;riint or cxisiinj; certificate of title of such land in addition to any other entry concerning such instrument rcMjuired by this Act." No encumbrance, it was therefore argued, could bo registered upon other land as was sought to be done here. If Mrs. M'Carthy had any claim to this right-of-way, the refusal to permit this registration would not deprive her of the opportunity, as she could bring an action of trespass, and could then establish her claim in a court of law. In reply to this, it was argued that the words "corporeal and incorporeal hereditaments" ection 4 must include right-of-way. The object of the A'^t wr.B to give a Parliamentary title to land. What was the use of registering the land without the right-of-way that belonged to it, which was quite as important as the land itself ? In Johnston v. Wliyte, the application was to register a right-of-way merely in gross. In this case the right-of-way was appurtenant to the land sought to be brought under the operation of the Act. In giving judg- ment in Johnston v. Whyte the Chief Justice expressly said that such a right-of-way could be registered. (Mr. Justice Fellows remarked that, with all respect for that dictum, it •was not essential to the decision of that case, and he could not agree with it.) It was further pointed out that no injury could be done to the owner of the land over which the right-of-way was claimed, inasmuch as he had the opportunity to appear before the registrar and prove that no right-of-way existed. The Chief Justice, in giving the judgment of the Court, said : — This was a motion for an order restraining the Registrar of Titles from bringing land, together with a right-of-way over certain other land, called Cross street, under the " Transfer of Land Statute" The word " land," TIIK RKAFi PROl'KRTY ACT OF 188.'). 405 ^ mera- Jilt over of this ,or book title of ng such B, it was 1 as was ly cUiim stration 16 could lish her I argued iraenta" 3t of the hat was t-of-way it as the n was to • case the ht to be g judg- ssly said Justice ictum, it le could that no er which lad the ove that le Court, ling the with a s street, " land," when used in the Act, is to include corporeal and incor- poreal horcditamontfl, and when used in any cortilicato of title is to includo nil easenunls appertainiuf; to it, or reputed to be part thereof or api)urtenaiit thereto. As regards the land ciilled Cross Btreet, the caveator objects that a cortilicate of title ought not to be issued \vhich will in any way ail'ect that street or the caveator's title to the soil of it free from all forvitude as a right-of-way. Ilo ])asi3 his objection on two grounds ; Ih'st, tliat there is no right-of-way further north than eighty-four feet from Little Flinders street ; and secondly, that as the land called Cross street has not been brought under the Act, there is no power to subject it by means of the Act to this kind of servitude or incumbrance. Whether the road or right-of- way which is admitted by the caveator to exist as far as eighty-four feet north from Little Flinders street extends beyond that point, so as to entitle the api)licant for regis- tration to use it as a means of access to Collins street, is the only point in dispute between the parties, for there is no objection whatever to the issue of a certilicate in respect of the land on the east side of Cross street. On the one hand it is contended that, as in case of a " right-of-way of necessity," Cross street is only to be used as a means of access to the nearest public highway, that is Little Flinders- street, and Randall v. Hall was relied upon in support of that view, for which perhaps it may be an authority. On the other hand, it was contended that a right-of-way had been granted along the whole length of Cross street, and that the grantee was consequently not limited to the use of that part which would give him access to Little Flinders street, but was entitled also to traverse it northwards, and so gain access to Collins street. Which of these two views is the correct one it is at present unnecessary to determine, for in neither event is it allowable to place on the register or in the certificate of title any easement over, upon, or affecting land which has not been brought under the Act. I'T' 406 THE I'llOVINCK OK MANITOnA. m m There is one mode of indicatiiif:; an caseraent, and so far as we can see, only one mode pointed out by the Act. Section (54 prv^scrihes that when any easement is created over, or upon, or affecting any lanil under the operation of the Act, a memorial is to ho entered upon the folium constituting the title to such land, or in other words, a blot is to be made in the register on tlie title to the servient tcneraont. There is no provision for showing on the title of the domi- nant tenement any easement which may bo appurtenant to it, though, as we have already seen, the use of the word "land" will carry with it any easement which its owner can bo proved by evidence external to the register, to be entitled to enjoy in respect of his ownership of such land. The Legislature having thus expressly provided a mode of indicating easements over land which has been brought under the Act, and having been silent as regards land which has not been brought under the Act, the court cannot, without usurping the functions of the Legislature, apply to the latter the mode of procedure whicii has been prescribed only for the former, even if there had been, as in our opinion, there is not anj' reason for supposing that the Legislature would have done it had their attention been directed to the matter. An order must therefore be made restraining the registrar from bringing the right-of-way under the Act. It must not bo supposed that this decision lays down a rule that all incorporeal herelitaments are incapable of registration. We do not, for example, hold that a rent charge, issuing out of land not brought under the Act, cannot be made the subject of a certificate of title. Our judgment applies only to those incorporeal heredita- ments which consist of mere easements as distidguished from actual estates in the land. THE HEAL PttOPERTY ACT OF 1885. 407 SITTINGS IN EQUITY. lie VOLUNTARY SETTLEMENT. (Before his Honour Mr. Justice Molosworth.) MOSS V. WltXIAMSON AND OTHERS. t His Honour delivered the following judgment in this suit : — The defendant, Mr. William A. S. Williamson, was seised of certain parcels of land at Hawthorn under certi- ficate of title dated October 13, 18()5. On August 28, 1874, he transferred them under the statute to the defendants Messrs. Smart and Smith, as trustees for his wife, the defendant Elizabeth S. Williamson, for life, with remainder to their sons, also defendants, all still under age. This settlement was voluntary. On February 23, 1875, a rule nisi for the sequestration of Williamson's estate under the Act 379 was obtained, and made absolute March 4 ; but on August 13, in that year, his estate was released from sequestration under section 129. Williamson wanted to get rid of this settlement, and finding Smart and Smith not disposed to assist him as holding the legal title, selected the defendant, Mr. Cohen, as more ready to do so, appointed him as a new, trustee in their place under a power in the instrument, 1875 ; and Smart and Smith executed a trans- fer to Cohen, December 1, 1875, by which he obtained a certificate of title. Before January 31, 1870, Williamson was indebted to the plaintiff, Mr. Moss, in the sum of i;i,0G6 Os. 6d. (for what does not appear), and wanted a further sum of MG'iS 198. 6d., and arranged with Moss that the latter should pay him the further sum, be made the registered transferree of the land, and hold it as mortgagee for £1,700, the equity of redemption being reserved to '(08 THR rnoviNCE or Manitoba. 'I' Williainsoii. This wan Hoii^'lit to ho worked out hy ait iiistrmnont of that dat(f hctweon WillianiHon and Mohh, whorohy the traiiHfor, AusuHt, 1H7 I, wan dcsfribcd as vol- untary, tho transfer to Cohen was recited an vohmtary, aiul with »oti(H! to hiiii that the former transfer was ho, and recitin;^ that WiUianison had n;,'rerd with ^iloHn to sell for I'l.TOO, tlio debt .1*1, ()()() Os. Od., and the payment of XMW 19s. ()d. Then followed a formal transfer. The piirtii « sought to have this acted upon in the transfer ol'lico, hut were very properly refused. There was another docuineJit of tho same date hetween ^Toas and WilliiimHon, reeitinj;^ the last mentioned document and tiiu intention to obtain a legal transfer by it at the ofliee to Moss, and containing provisions anionj^st other things for Williamson ))ayin;( Moss, before January 5J1, 187i), the sum of l'l,7()0 nnd interest at 8 per cent, with a provision for redemption, and a power of sale on default of payment or breach of cove- nants ; and there were also provisions that all charges and expenses of i)rocuring tranfiifer, removing caveats, and proceedings in this court respecting the registered pro- prietorship of the lands to be taken in Williamson's name should be defrayed by Williamson, and also be charged on the land. The COBS li)s. 6d. recited to be paid in the firsj; of these documents was not paid, but means were taken to atford evidence that it had been. A cheque for that amount, of the same date, payable to bearer, was signed by Moss, endorsed by Williamson, and handed to Cohen., Cohen got that sum, and invested it in his own name with the Equitable Loan, d'c, Company, of which Moss is the leading partner ; and of the same date Williamson wrote a letter to Cohen acknowledging that a sum of iJ633 IQs. 6d. for which he had given a receipt in the above instrument of that date, was immediately afterwards placed in Cohen's hands as bailee, to be retained until a transfer of the land in question to Moas should be duly registered, and certificate of title issued ; and thereupon on trust to pay the costs of Till'; UKAL I'llOl'KllTV ACT OF 1885. 401) tlio HolicitnvH for ^f()SK luid WilliiiniHon, iiiid pay tlic Italiuico to the liittrr. 'I'lio l)ill in tliiH Huit wiis Kciih'd Murcli 2!), iHTfi, Hf-'iiiiiHt WilHiuiiHoi), liirt wiff, hoiih, ('olicti, Sumrt, ujid Stnith, iiUopfin^ ihni the two last claimed houic interest. It Hoiifiht Bpecilic execution of the tirHt inBtriunnit of January \M, 187<>, as if it was true, a ilfciaration that MosH was a purchaser for vahio aj^ainst the Hctth'Uiciit. AuRust 2H, 1874, same to he doclarfMl covcnous and frau- dulent, and seckiu',' cosU a^'ainst Wilhamson. Mrs.Winiain- Hon answered tliis hill, alle^^iu;,' tiiat the sale to plaintilt' was colourahh) only, and the pretended price a (:;ross inuhr- value, and settiuj^ up the insolvency of Willianisoti. W'illiani- Ron also answered, Hettin;; out the true facts, and Smart and f?inith disclaimed. A f^ood deal of costs were incurred ahout all this. On July 21, the plaintiff, having f^ot liherty, anjendcd his hill, putting in issue the sequestration and the release from it, and the second n<^reemcnt of January 31, and still allej^ini^ that the I'OMJ} l!)s, Od. was hoiut fide paid, and Becking specilic pcrfornumceof the second agree- ment, and to have himscdf made the registered jjroprietor, and otTering to execute proper instruments to secure the residue of the land after satisfaction of his claims and costs to the persons entitled undcn- the settlement. The amended bill was answered by Mr. \Villiamson, by the infants by guardian, and another answer and disclaimer of Smith. It was long established that a voluntary settle- ment might be set aside in favour of a bona Jide i)uvchaser for value, although having full notice of the settlement, and subsequently that courts of equity would set aside such settlements in favour of n person hona J'ulc contracting for value to purchase from the settlor, also of a person honn fide advancing money by way of mortgage to liim ; but this has been for persons truly setting out a real bargain, and dealing with the settlor, and I am not disposed to go further. The settlor could not proceed to set aside the voluntary conveyance, nor, I think, plan a scheme for ^ 'i ■ i !. .■;»' if } - *' !■'' r 1 III 110 TiiK fRrtvi.scK or MAKITOHA. tinothor. Thu lirHt writiiiK of January !)1, \HH\, wuh fiiUo botii iiH to thoro lining nil agrocnuiit for Miilc, and uh to the prico, i'(»MI) \\)h. (M., hcirig paid. So I kIiouM have tio doiiht aH to (liHchari^ing it. iiiit tho anicndixl hill is huHoJ upon ttiat hiuu having hicn paid, whiidi it i roully waH, hut impounded ho an to picHcrvc it to the piaintitT. 1 think, howuvor, that I Khould give tlu^ ]daintilT n-lief ho far RH thu object iH to Hocuru payment of n real d( ht, I'l.OtiO Od. Od. WillianiHon might, pcrhapH, ohjeot that a partial execution of hitt bargain would bo unjuHt to him, but he dooH not. I have Homo douitt if and how I hIiouM deal with th«) caHC under the ActiJOl, flection IMl*. In addition to other diniculties, Cohen, tho present proprietor, ImH with due formality been appointecl trustee! of the Hottle- ment. Moss has not, and I do not think I hIiouKI make him proprietor with tho uncontrolled poworH of aliouation which tho Act wo\ild givo him. I prefer leavi' tho pro- prietorship in Cohen, and directing iiim to oxe i mort- gage to MoHS for X'l.OGO Os. (Id. The counHol for »,.iO infant definilants has very properly put forward an argument on their behalf that the insolvency of Williamson put an end to hia power to defeat tho settlement. Tho full court decided in Smfden v. lii'iUil, 5 Aust. Jurist 86, that an insolvent who had executed a voluntary conveyance, join- ing tho assignee in conveying to a purchaser for value was ineffectual. The ground of the decision was, that the settlor, to convey effectually, must be in such a relation to the land that if all previous voluntary settlements were out of tho way, ho would bo the owner of the estate which he conveys for value. Now, it appears to me that the effect of the sections 131, 132, and 377, replaced William- son in tho position hero described, that if tho voluntary settlement were out of the way, he would be the owner. 1 think the infant sons and Smith should have their costs against plaintiff, nnd 1 shall make no provision for his having them over. I do not think Williamson should have TIIK UKAI. I'UOl'KUn ACT OlT 18H5. 4U ooHtri. Ill) was a party in tin' ohjoctinnabU' HclitMiio, aiul if li(< ffot tltfin would Itavu to rcfiitid iIkiu utulcr itiM a^rou' niunt; (Icidarc that the H«iiu>nt of AtiiJiUHt 'iS, 1H7I, (H bill tiu>iitioiR>«i WHH void aj^nitiHt tlio aKrciiuciitM of .laimary 81, lH7(i, aH to tin- plaintitT Mark Mohh, ho far as rci^urdcd tho duht of l'l,(Mili Ort. tid. and iiitrr* Ht piirportin)^ to bo theruby Bocured ; dircot tbo dofcndant, Simeon (!olicn, art proprietor of tliu land in bill tu'iitioncd lo cxccutti to tbo Maid plaintilT a inortt;a;^t! under tin- " TrititHhr of lyiml Statiitr," HO framed art to Hocuro the principal and interuHt contra(;tL>d to bu paid under tbo naid agreement marked l( lit tbo time8 and in tbo niannor tbereby provided, but not tho coatK and expenses or otber niatterH tbereby provided, but Hccurinj^ tbe costs of preparin^^ tbe niort^;a;;e, and ho framed tbat tbo said Situtou Cobitti sball incur no personal liability for tbo said himu or interest ; refer it to tbe master 10 Hi^ttle Huob mortj^aj^o in caso tbe pjirtners dilb'r. Order tbo Haid plaintilT to pay tbo costs of tbo defendants, William- Bon, Frod. Williamscm, llarvoy Vincent Williamson, and Ernobt Williamson, and John Cbarlos Smitb. Itefor to tb(! master to tax the Haid costn, and alHo tbo costs of pre- paring this mortgage. Liberty to apply. lie DISCOVERY OF TITLE. JAM1E80N ?•. I.YNOII. This was a suit to reHtrain tho defendants from obtain- ing a certificate of title to some land at Fleniington, to which tho defendants demurred, on the ground that tho bill did not show any ground for interference by a (Jourt of Equity. His Honour, in giving judgment, said : — This case comes before mo on demurrer of Messrs. Quinhin and Lynch, two I I! m ■ill I ! i f 1 ' ! i.' 1 i ti«' ►.. I if 412 THE PROVINCE OF MANITOBA. of the defendants, to a bill of Mr. Jamieson. The bill shows a legal title of the plaintiff to certain land under a grant of 1850, and alleges that the above defendants also claim some title to it, of which the plaintiff is entirely ignorant ; that the Ecgistrar of Titles, who is made a defendant, has given notice to the plaintifY of an applica- tion by the other defendants to bring the land under the Act 301 ; that plaintiff lodged a caveat, which had nearly expired when the bill was sealed. It states also that the plaintifT was endeavouring to bring the same land under the same Act in his name, which the registrar refused to do, in consequence of the other defendant's ap)^lication. It seeks a discovery of the title of these two defendants, and prays a declaration of plaintifi's right, and of these defendants having no right ; and injunction against defen- dants further proceeding with their application and obtain- ing certificate of title, and that the registrar may be restrained from registering the other defendants as pro- prietors. The bill says nothing as to the possession of the laud, so is consistent with the defendants having had adverse possession for fifteen years, and the plaiutitY's title, if any, being barred by the statute of limitations. But if these defendants aver possession at all, and the plaintiff has right, he would appear to have no obstacle to asserting it by ejectment ; and I think there is nothing in the Act 301 generally enabling plaintiff to transfer a legal right to a Court of Equity, or compel a defendant to dis- close his title. I have to refer to Hodgson v. Hunter, 3 A. J. R., 13, 41, 64; ex parte Gunu, 3 Vict. L. R., L. 36. I allow the demurrer with costs. If the plaintiff wishes liberty to amend within a month, the order may be so drawn. Demurrer allowed, the plaintiff to have liberty to amend his bill within a month. THE REAL rROPKIlTY ACT OF 1885. 413 [From Mauittthd LS\ Blanvhard, Q.C., for the Registrar-General. J. H. D. Hanson, for Jane Irish. 26th October, 1885. Dubuc, J. Under section 110 of the Real Property Act of 1885, the Registrar-General has submitted to the Court certain statements of facts and certain questions arising from the application of one Jane Irish to bring under the Act the lands therein mentioned. The facts are as follows : — Jane Irish, on the 20th of October, 1884, obtained a certificate of recommendation of patent under the Dominion THE REAL PnOPERTY ACT OP 1885. 417 Lands Act, for Bouth-west half of section 10, township 11, range 19, west of the first principal meridian, in Manitoba. On 2nd of July, 1885, the Crown patent for south-west quarter of said section issued to her. On 11th of Sopteiuber, 1885, she paid the Dominion Government the pre-emption for the other quarter-section. On 9th of September, 1885, she signed an application to bring the said half-aection under the Real Property Act of 1885. On the same day she executed to the Western Canada Loan and Savings Company a mortgage of the said half- section for $600 in the form set out in the schedule G to the Act (with other special covenants.) On the 23rd of September, 1885, the application and mortgage was brought into the office of the llegistrar- General, together with the certificate of recommendation and receipt for pre-emption money, whereupon he gave the Company mentioned a certificate, which certificate was forwarded by the said Company to the Registrar of the County of Brandon (the division wherein said land lies). Question 1. — Does the word "alienated," in section 28 of the Act refer to the date of the issue of the Crown t,.^tent, or to the date the recommendation is countersigned by the Land Commissioner, or to a prior period when the party entitled has fully complied with the requirements of tht Dominion Lands Act, and has become entitled to demand his patent, without more ? The said section 28 reads thus : — " From and after the commencement of this Act all lands unalienated from the Crown in the Province of Manitoba shall, when alienated, be subject to the provisions of this Act. Provided, however, that this section shall not ai)ply to any lauds to which the parties may be entitled under the Manitoba Act or any amendment thereto." Were it not for the proviso in section 06 of the Dominion Lands Act, 1883, no doubt whatever would arise as to the 27 i!?:; 418 THE PROVINCE OF MANITOHA. date referred to by the word " alienated," it would un- questionably mean the date of the issue of the Crown patent. Tho said section 5J6 is as follows : — " Any assignment or transfer of homestead or pre-emption right, or any part thereof, and an\ agreement to assign, or transfer any homestead or pre-emption right or any part thereof, after patent, which sliall have been obtained, made or entered into before tho issue of the patent, shall bo null and void ; and tho person so assigning or transferring or making an agreement to assign or transfer, shall forfeit his homestead or pre-emption right, and shall not be permitted to make another homestead entry. Provided, that a person whose homestead and pre-emption may have been recommended for patent by the local agent, and who has received from such agent a certificate to that effect in the form M, in the schedule to this Act, countersigned by the Commissioner of Dominion Lands, may legally dispose of, and convey, assign or transfer his right and title therein." Before receiving from the Land Commissioner the cer- tificate of recommendation for patent, the person having a homestead or pre-emption right cannot even legally dispose of, and convey, assign or transfer his right and title therein. So that, even if he has fully complied with the requirements of the Dominion Lands Act, not only has he no fee in the said lands, but he has not even such right as can be legally disposed of and conveyed. Therefore the word " alienated " cannot refer to such bare compliance with the requirements of the Act. Now, can it refer to the date of the recommendation countersigned by the Land Commissioner ? Section 62 of the Real Property Act says, that " Every certificate of title granted under this Act, when duly regis- tered, shall, except in case of fraud wherein the registered owner shall have participated or colluded, so long as the same remains in force, and uncancelled under this Act, be ;; ii THE REAL PROPERTY ACT OF 1885. 410 conclusivo evidence at la^v and in equity as against Her Majesty, and all persons whomsoever, that the person named in such certilicate is entitled to the land included in such certilicate, for the estate or interest therein specified, etc." In the first place, the certificate of title, under the Act, has more solemnity and importance than the recommenda- tion for patent in the Dominion Lands Act, the latter giving only to the holder of the certificate the i)ower to dispose of liis right and title, whatever they may he, while the former is to he conclusive evidence at law and in equity as against Her Majesty and all persons whomsoever. In the second place, the recommendation for patent might he cancelled before patent issues, if it is made to appear to the Dominion Land Department that it was obtained through mistake or fraud ; and if it was so can- celled, the consequences might be very serious for the parties who would have relied on the Itegistrar-General's certificate of title as conclusive evidence at law in equity. To avoid this, I think the word *' alienated " should, in the construction of the Act, refer to the date of the issue of the Crown patent. That construction can also be considered as the logical interpretation of the statute. The word alienation should mean a complete alienation by patent, and not one which is incomplete and revocable. Question 2. — Assuming that the word "alienated" refers to the date of the issue of the patent, are lands not patented on 1st July, 1885, subject to the old or the new la^ in the meantime ? The construction of the word " alienated " as above given, affords an answer to this question. The statute should have a strict interpretation. Section 28 says, that from and after the commcneoment of this Act, all lands unalienated from the Crown, shall, when alienated, be subject to the provisions of this Act. From 420 TIIK rUOVINCE OP MANITOBA. Il this it folIowH that the lands not patented, i.e., unaliena- ted, shnll not, until alienated, ho ahnolutely Buhje*.*^^ to the new law. They may ho hrouf,'ht under tho new law hy application under section 88 of the Act, which applieation may, or may not, ho entertained hy the Kegistrar-Oeneral. But in tho meantime, until Buch application Ih entertained and granted, the Haid landu remain Huhject to the old law. Question 3. — Are lands in tho province seizahle under Ji.J'n. goods or ,/j. fa. lands '? This question is not derived from the case of Jane Irish now hefore court. It arises under section 21 of the Act, which says that all lands in this province shall hr\ held to bo chattels real, and shall go to tho executor or adminis- trator of any person dying, seized or possessed thereof. But the tenor of this section, as well as of tho following up to section 27, shows clearly that this applies only to the mode of transfer of lands, and has not the etfect of changing the nature of the property. The lands remain real estate, and except for the purpose of transfer, they remain subject to the law relating to real estate. They are not seizable under ^./n of sections '2H and iXl, and leads naturally to the conclusion, that, bf/ore tho regis- tration of tho title, althouj^h the land nuiy, by tho issuo of th(! patent, ho. subject to the provisions of th(( Act, any instrument may bo elVectuul to pass tho interest therein, whether it bo executed iu accordance with the Act or otherwise. I am, therefore, of opinion that before the issue of a certiticate of titlo under the Act, instruments in tho ordi- nary form should have the usual cfTect they puriiort to have. Taylor, J. This is a case stated by tho Iioj,M8trar. General for the opinion of the Court, under the 110th section of the Uoal Property Act of 1H85. The applicant, Jane Irish, on the 20th October, 1884, obtained, under the yiJrd section of the Dominion Lands Act, 18853, a recommendation for patent for tho west half, section 10, township 11, ranj^e IS), west, on '2nd July, ISM;"). The Crown patent for the south-west quarter of the section issued to her on the 11th Sei)tember, 1885. She [)aid to tho Dominion Government the amount payable U()on the other quarter of tho section for which she had made a pre-emption entry. On the Dth of September, 1885, she executed an application to brin<^ the whole lialf-section under the Ileal Property Act of 1885, and on the same day she executed to the Western Canada Loan and Savings Company a Bl I 1 ^ . 1 j j 4S4 TlIK I'llOVINCK or MANITOHV. f> i I < I:': inort^ii^o of tile liiilf Hoctioii in tlir forin Hct out in Hchcdulu (i (,<) tlio Act, which mIho contuincMl ciitiuii Hpfciai covoiiaiitH. Tho main i|iu[anitoha Act or any amondnunt thoroof." Tho dato of tho commoncomcnt of tho Act iH tixoil aw tho l:^t of July, IHHri, liy tho *2nd Hoction. Tho intoiition of thin Hoction ])laitily iH to rendor com- pulHory tho hrintjin^ nndor tho Act all landH, oxcopt landn to which tho Manitoha Act applies, which woro at tho commoncemci t of tho Act unalicnatod, and aftorwardn alienated, while hringing in of uthor landH in optional with tho ownorH. At what time then doos this compulsory Hootion come into play / In my opinion, only when a ('rown patent Iuih actually h((on issuol. Tho word " alioiuited " must hear the moaning' of wholly and ontiroly ])artod with. Durint? tho argument, it was suggested that in the present case tho taking steps to hring the land under the Act was a voluntary prixteoding on the part of tho applicant, and theroforo tho })8th section might apply. That section says tlu' owner of any estate or interest in any land, whether legal or equitahlo, may apply to have his titlf registered, etc. On a careful consideration of that section, I have come to the conclusion that ;> j r.xfui who has performed the settlemcnit duties \\'iicl' ire required in the case of a homestead entry, or as paid tf" pur- cha!?e money on a pre-omi)tion en and has ob> nod a recommendation for patent, or who i, li ran ',.■ an ordinary purchase of Crown lands, paying his pur liuse money in TliK HKAI. fUOI'KKTY ACT OV \HHli. 426 fitll, l)iit to whom no |iAtont Iian iNNUod, nuinot voIiititHrily hrii)^ till- land mulur the proviHionH of IIm> Act. lit) iH not, in my opinion, tin; o\»n( Act to nimplify tho tith: to, and thu dealing' with tstntnH in hind, provinion in in oxprcHH trrniH mado for hrin^in^ un(h>r tho Act in forco thorc, in a (lualiliud inaiiiitr, hiiiil wliich haH not hoon ({ranted hy tho Crown. Tho l/>th Huction providoH for tho caMo of hiniU ntnilicnatod at thu timo of tho Act coming into forco, and AH to thom when alionatod rcgiHtorin^' under tho Act, iH compiilHory. Tho 17th Hiction providoH that hind alionatcd in foe hy tho Crown hoforo that dato may ho hroiight under thu operation of tho Act. Tho r»7th Hoction providoH that upon production of tlio receipt of the; troftHuror of the colony for tho full purchaHo monoy of any land Bold hy hor Majonty in foe, together with an iuHtrument doalin)^ with Huch land, signed hy tho purchaHor, tho regiHtrar Hliall ondorHo upon HUch receipt HUch memorial as he in required to enter in tho re<;iHtor hook, upon tho regiHtration of any dealing of a like nature with land regiHtercd, and ho on, from time to time, with ronpoct to any other dealingH hefore the regiH- tration of tho grant. IJut it seema to he only after regis- tration of tho Crown grant cortiticato of title can he iHHued. To Hay that a man in owner of an equitahlo estate or interest in land implioH that, while the legal entate it) the land is vested in some other person who is at hiw recog- nized as tho owner, ho has some right, interest or estate in the land wijich is recognized in equity, and which ho can in Court of l'!([iiity enforce against the owner of the legal estate. In other words, the owner of the legal estate munt b'j, hy doctrines of a Court of Ivjuity, ii truHteo for him. In the case now under cousideiatiun, the legal estate is vested in the Crown. 426 THE PROVINCE OF MANITOBA. In Cruise's Dig., vol. 1, p. 403, it is stated that " when trusts were first introduced it was held that none but those who were capable of being seised to a use could be trustees. This has beini altered, and it is now settled that the King may be a trustee, but the remedy against him is in the Court of Exchequer." Mr. Lewin, in his work on Trusts, at p. 29, statf's it thus : '' The Sovereign may sustain the character of a trustee, so far as regards capacity to tako the estate and to execute the trust, but great, doubts have been entertained whether the subject can, by any legal process, enforce the performance of the trust. The right of the cestui qui trust is suiliciently clear ; but the defect lies in the remedy." Hill, in his work on Trustees, at p. 30, says, "It does not appear to have been ever directly decided whether a trust could be enforced against any property, either real or personal, in the hands of the Sovereign." In Penn v. Lord Baltimore, 1 Ver. Sr., at p. 453, Lord Hardwicke said he would not decree a trust against the Crown. The dicta of several judges in favour of the existence of this equity against the Crown are nil extra- judicial, and in the two cases of Powlett v. Attorney-General, Hard. 467, and Reeve v. Attorney-General, 2 Atk. 223, in which it became necessary to decide the point, the relief was refused. As Lord Keeper Northington expressed it, in the great case of Burrieas v. Wheate, 1 Ed. 177, " The arms of Equity are .'y short against the prerogative." In Haven- den V. Lord Annesl<^>j, 2 8. «& L. 607, that eminent judge, Lord Redesdale, doubted whether the Court of Chancery had jurisdiction to bind the Crown. " The subject," said he, " is involved in great obscurity." In Hodge v. Attorney- Genend, 3 Y. & C, at p. 346, Alderson, B., said, " The legal eptate is vested in the Crown, and I do not know any process by which this Court can compel the Crown to convey that legal estate." ^f!\ THE KEAL PROPERTY ACT OF 1885. 427 Notwithstanding the language of text-writers and of some judges, the question of whether the Crown can be a trustee does not even at the present day seem definitely settled. In the recent case of J'lifitomjee v. The Queen, \j. R. 2 Q. B. D. ()1), in which the Court of Appeal held that, in making and performing a treaty with another sovereign, the Crown cannot be a trustee or agent for any subject. The expression Lord Coleridge, C.J., used is, " We do not say that under no circuiiistauces can the Crown be a trustee." Nor could the person who lias obtained a recommendation for patent, or who, as an ordiiuiry purchuscir, has paid his purchase money in full, enforce the siiecilic performance against the Crown. That a Coi, >: of Ivpiity has no power to decree specific performance against the Crown has been d(!cided in SimpHon v. (imnt, 5 Gr. 2(')7, and Crottj/ v. Troomnn, 1 Man. L. R. 151. He must rely solely upon what has been called the infallible justice of the Crown. It is to my mind impossible to imagine that the Legislature ever intended that a person in that position, who may, in a sense, be said to be the owner of an equitable estate or interest in the land, but of one which he cannot enforce, shoulcT be able to come in under this Act and obtain a certificate which would, under section (52, be conclusive evidence, both at law and in equity, as against Her Majesty, as well as all other persons. Besides, the 29th section, which seems to refer to com- pulsorily bringing land under the Act, provides that patents shall be deposited with the Registrar-General, who shall, upon the deposit of the patent, take certain proceedings, and if the title is found to be in the applicant's, register the same. Then the 39th section provides that every application for first registration under the Act, except by immediate grantees from the Crown, shall bo accompanied by certain particulars. The mode of expression clearly implies that the application must be by the immediate 428 TIIK PROVINCK OF MANITOBA. w ! ^ 1 grantee of the Crown, or by somo person deriving title from Buch grantee. Also, by section 61, any certificate of title granted under the Act shall, by implication and without any special mention on the certificate of title, unless the contrary be expressly declared, be deemed to be subject to, amongst other things, " any subsisting reservations con- tained in the original grant of said land from the Crown." It may be said that to so hold would prevent lands held under the Manitoba Act from being registered under the provisibns of the Act. I do not see the force of that. The Manitoba Act provides in the 32nd section for granting of titles and assuring to the settlers of the Province the peaceable possession of the lands held by them. The class of titles dealt with by the first sub-section shall, if required by the owner, be confirmed by grant from the Crown. The classes dealt with by the 2nd and 8rd sub-sections shall, if required by the owner, be converted into an estate of free- hold by grant from the Crown. The 31st section provides for the lands set apart for the extinguishment of the Indian title being " granted " to the persons entitled. If any of the persons entitled to lands under either of these sections have not obtained patents to lands which it is desired to bring under this Act there can be no obstacle to their applying for patents, and that seems to me the proper course to be pursued. Even if it should be determined that lands held under the Manitoba Act cannot voluntarily be brought under the Act, there is no greater anomaly in that than is created by the 28th section, which provides that they shall not be subjected to the compulsory clauses of the Act. In regard to the other questions raised by the case stated, I am of opinion that, after the registration of the certificate to be issued by the Registrar-General upon the filing of the application under section 42, and which is by section 43 thereupon to be r-^gistered in the proper registry office of the division wherein the lands are situated, all ii THE RKAL J'ROPERTY ACT OK 1885. 429 further registrations in such regiptry office cease. If they continued, it would be impossilde for a Registrar-General ever to grant a certificate of title with certainty that the grantee of it is the true owner. To so hold does no in- justice, professing to deal with or purchase the lands pending the granting of a certificate of title, because the registration certificate under section 48 gives notice that an application has been made to bring the land under the Act, and before dealing with the ap})arent owner they can acquire all necessary information at the office of the Registrar-General. How the land is to be dealt with in the event of the title turning out defective, and a certificate of title being refused, does not appear from the Act. The statement in the 21st section, that after the com- mencement of the Act all lands which by the common law are regarded as real estate " shall be held to be chattels real," must, I think, be read as meaning that they shall be held to be so for the purpose of devolutions on the death of the owner, that subject being dealt with in that and some subsequent sections. Why these words were ever introduced it is difficult to say. The section would read as well, and would convey all the meaning it was intended to convey, quite as well without them. Their insertion only causes trouble and doubt. Lands, in my opinion, continue subject to be seized and sold under writs of execution against lands, and cannot be seized or sold under writs against goods. In iio case of lands not brought under the Act, a mort- gage or other instrument, according to the forms given in the Act, can have no other effect than the words used have as ordinary words. The words used cannot derive any force, effect, or meaning from the provisions of the Act. Killam, J. I afjroe that the word "alienated" under the 28th section must refer to the date of issue of the patent from the Crown. I have come to this conclusion from 130 THE PROVINCE OF MANITOBA. U i li: -i U\ -i a comparison of other sections of the Real Property Act with the 28th Bection. I agree that the lands in respect of which a homesteader has a right to a patent are only to be considered as compul- sorily subject to the provisions of the Act when the patent is issued ; but I think that the party entitled in this way, at any rate after the recommendation for patent has been given and countersigned (which is all we need now consider) can apply for and can have his title registered under the Act, though the patent is not yet issued. I agree, also, that lands are not made subject to seizure under fi. fa. goods. I agree with my brother Dubuc in thinking that the right of the applicant to the pre-emption can be registered under the Act. I think that under the Dominion Lflnds Act, the party having a right thereunder to a patent for a l)omestead or a pre-emption by the compliance with the provisions of the Act, and having obtained the recommendation for patent, and the right therefore to dispose of his right, has acquired an interest or estate in the lands as against the Crown. The statute is binding upon the Crown, and I am of opinion that it should be presumed that the Crown will not refuse to acknowledge the right. What may be the remedy if the Crown should in a particular case refuse to recognize the right, I do not deem necessary now to consider. I think that when a party entitled to register his title under the Act has applied to do so, he has brought the land under the Act, and after this is done, it appears that no instruments can aflfect the title until they are registered under the Act itself. It follows that the ordinary registers should not register transfers or instruments purporting to effect the land after such application has once been made. As the instrument in question is in accordance with the form provided by the Act, I do not think it jiecessary to THE REAL PROPERTY ACT OF 1885. 431 consider what would be the effect of instruments in any other form. None of the other questions asked appear to arise out of the case before the Registrar-General, and this being so, I do not think that they should now be considered. I regret that I have not been able to discuss more fully the grounds upon which I have formed my opinion upon the pomts on which my brothers Dubuc and Taylor differ, as I feel that the views used by my brother Taylor are well' worthy of more full discussion than I have given them. Though I have considered carefully the authorities referred to by my brother Taylor, I am unable to come to the same opmion as them ; but with so many matters cl ming our attention, I have not been able to express my opinions more fully in writing. It:) IN DEX. PAGK. Abatement: Of proceedings, none by death, rulo If) ,_, In Manitoba, same .. , . , * ■ • • • • • • • . . . -202 I'ower in Registrar-General, sec. 45 (M.) ,5, Absknce : Of any officer, in case of, the Lieutenant-Governor mav appoint Deputy, sec. 12 (M.) '__ ..332 Of mortgagee, Provincial Trensurer to receive moneys, sec. 86 (M. '■94 2n applicant (M.) .. .. .. .. 267 To be adjudicated upon before certificate granted, sec 54 (M,).. 267 As to title by possession, note (M.) .. .. .. .. .. 267 May be referred to Court, if Ke^.-Clen. thinks fit, sec. 54 (M.) . . 367 No certificate to issue till claim disposed of, sec. 54 (M.) . , 267 Adverse Possession : As against owner, sec. 25 .. .. .. .. .. .. 67 No ac(iuisition of title by .. .. .. .. .. .. 67 Not acquired by length of possession .. .. .. .. 67 Proceedings with regard to, in Manitoba (M.) .. .. 266-267 .■Xdvkrtisemkst : Form No. 9 . . . . . . . . . . . . . . . . 200 Aflfidavit of publication of, form No. 13 ., .. .. .. 20a In case certificate dispensed with, sec. 44, s-s. 9 (M.) . . . . 254 Advice : By Commissioner of Land Titles Office, Melbourne (M.) . . 34a AfI'Idavit : In support of caution .. .. .. .. .. .. ..114 False, punishment of .. .. .. .. .. .. .. 145 Of applicant, rule 4 .. .. .. .. .. .. .. i68 Who may swear, rule 46 .. .. .. .. .. .. 187 Of applicant, form No. 5 .. .. .. ,. .. .. 197 Of publication of advertisement, form No. 13 .. .. .. 202 Of execution, form No. 42 .. .. .. .. ,. ..216 In support of caution, form No. 17 .. .. .. .. .. 204 In support of caution, form No. 20, under sec. 58. . . . . . 206 Must accompany application, sec. 39 (M.) .. .. .. .. 249 Must be in prescribed form, sec. 39 (M.) .. .. .. .. 249 May be dispensed with by Registrar-General, sec. 39 (.M.) . . 249 INDEX. 435 Affidavit — continutd. My whom may !)« maHe. sec. 3c) (M.) No preset ibfd form yet in Manitoba, note (M.) In Ontario A.t . . In Australian Act (ue Ap|>en(lix.) . . That urant han not been deposited by way of s«. 9(M-) For non-production of grant (M.) .. Verifying adverse claim to be filed, sec. 33 (M.) AORHKMKNT FOR I.KASK: Kegistration of, sees. 53 and 56 Stt rule 29 Amendments of FA(iK. .. 34g • • M9 . . 197 37«-37-« len, sec. 44, III.(M. «5 (M) 253 235 a66 iot-102 .. 179 • • JJ5 • ■ iii •- 2J5 •• 235 . ■ 233 •• ^2^ . . 239 240 . . 240 .. 241 .. 241 .. 243 •• 134 .. 277 .. 282 .. 293 2J2 •• 293 Appeai. : Person .-iggrieved by any order of Master may, on tr.insmission. 8(j From High Court 164 From Master .. .. .. .. .. .. .. .. 164 &V.' rule 59 .. .. .. .. .. .. .. .. 192 To Court of Queen's Hench by person dissatisfied with Act of Registrar General, sec. 109 (.\I.) .. 315 Cases with regard to, in New South Wales (M.) .. .. .. 316 Note 318 General right of appeal, sec. 114 (M.) 321 I if Ill 4flft INPRX. 1*1 Ai'i'i.icANT ; PAr.K. m,\ I'rcKuring certifuate !mpii)|>«>rty, liable .. 14H ll AfTidavit of, fotiii No 5 . . 197 1 ; UrinKinK Inml untlt-r Act, tec. j» (M ) .. 248 1 Kcfi-rn to perRonn collertivFlv, nnlc (M.) 2^H 1 IntiTprctation, " owner " (M.) 2if> 1 In Victoria Act, nolo (M.) 248, J49 1 Sh.ill furnish evidence, lec. 39 (M.) .. 2.|.» 1 ; Aphmcatiun : 1 ' Tn brin^ land under the Act . . .. 3a 1 I'ur absolute title • . .» ) 1 1 For possessory title •• J.J 1 ■ Must be siKucd by applicant or nolicitor ■■ 34 1 1 ,SVc first nener.il rule •• 34 ■ i For entry ol restriction, etc .. 3f> m' Hy purchaser .• 37 1' Vendor must tonsent to •• 37 K' liy C!rown •• 37 1 Notice of, should be served on lessor 4'> B In case of Ifiischnld ., .. 4^. K Trustees and tnortf^a^ces may make, sec. 7' .. 115 h joint or successive owners may make, sec. 72 .. 117 I <".t!neral requisites, rule 20 ■• J75 L I'roofs, rules 3-8 167, 170 i To be signed, rule 38 .. 184 R ', !n case of possessory title, rule 2 .. I6() "i Certificate of counsel and solicitors, rule 5.. 1 (>ij 1 Applicant's affidavit on, rule 4 . . 168 p^ Notices in fjdsr/ff, rule (J .. 170 i|i I'or first registration, form No. 4 .. 196 |i For iuhibiting order, form No. J2 . . . . 207 ' To register restrictions, form No. 23 . . 207 i To withdraw or modify restrictions, form No. 24. . . 208 jf. To discharge charge, form No. 27 . . .. .. 209 ^ To negative implied covenants, form No, 33 .. 212 ■ I'or entry of transmission on d( ath, form No. 34 . .. 212 ^M I'or entry of transmission im death, form No. 35 . .. 213 H For entry of dower or curtesy, form No. ^(> .. 2IJ H To notify cessation of incumbrance on le. ise, form No. 37 .. 214 H For rcKistration of notice of lease or ai^reement for , form No. 38. 214 H To annex conditions, form No. 40 . . .. 215 H For certificate of charge, form No. 41 216 H For certificate of title, form No. 41 . . . . 216 H For office copy of lease, form No. 41 .. 216 H To bring land under Act, sec. 39, (M.) V .. 249 IKDCX. 407 ArvucATinH—toHliHueil. pa(>k. kt'Kitirar-Genflral ha* power lo refuis (except )>y CroHn Kraiitees), flmt i(-Ki*trali<>n m>iuII Imi hi )ii«M'rit>cHl form, nee. JQ(»1.^ •• •# •• •• •• •• •• •• MuNt l)e .iccompaDicil !>> »ffulnvit, M' . v) (M) •• I'rnrticc in AuNtr.ilia, (" Hlinri (Aitii,") imti'. . .. .. .. Kviilrnca ri'qiiired. MC. 41) (M.) .. .. .. .. ,. To In- liird in l.iiiid Titles ()(li( i«, (ifc. 41 (M.) Ti) li<: icfcrtutl to 1-lx.iinitit'r of TillcH or Ki^ (iim , st-c. 41 (M.) On (iliiiK. i^'Ttitkate tu isNUC, nee. 43 (M.) .. I'orni of, note (M ) Ccrtific.ito of filing to lie rt'Kisiercd in ri'Kiiitry oflicu of diviniun. ■«<■ 4J (M ) Note on . . . , , . . . . . .. . . , . ASSKINKK Uufiisal of, of a Ic s(!e to accept leaHu to operate as a surrumlur, ■ec: Hi (M.) I'nli'ss th 326 J-!7 329 33" 331 I iiiii 4 488 INUEI. AmI)IIAN< R Fl'NU- fiiMHuUfil. CommiMion nr premium payabia on brinKing lan (M.) Attknuanck : Hour* of, ruin Ou , ,. Attektation of iniiirumeiitii, NIT ii)H(\|.)., ., ., ,, ,, InnlrumKntH to U- wittusv'd l)V ortn prriion. nrc. lo8 (M ) One, in unii.-il lcR.ll form, Ml. ii)H (M.) f'roof of, acconliiiK to Lind Kt'KiHtr.itioi Ad, nee iu8 (M ) Statement of ma-inur uf proof u\ Matiitoba, note Attonnky : power of, to he pro{>erly proved, nil* 41 .. ,. I'urm 4.( Revocation of power of, form 45 .. .. .t power of, to be in form i I, MC. luH (M.) .. .. .. Schedule H (M.) Owner may .tp|)oinl by power of, nee, 91 (M.) Revocation, how eflected, Hec, Q2 (M) * .. .. .. KxprcfiH .luthority recpiired under sec, 71, nc.te(M.) NlortKaKor may execute power of, note (M.) Such power of, miHht be innerted in mortK.iKe, note (.M.) At to Npecint owner (M ) .. .. .. .. .. ATTf)KNKV-(il'.SKK^I. Application by, t(j brin^ land under Act Act passed under Hun. C. K. Hamilton (M ) .. .. At;KTI«Al.IA : Victoria Tr.inHfer of Land Statute .. System of conveyancinK in . . Victoria Act ax to dainaKcH sustained Limitation of action Practice as rei^ards boundaries in . . Cases in, as to, sec. i2.. Pr.ictice as to caution . . i'ractice as to trusts in . . Pr.ictice as to husband and wit'e Advice by Commissioners, Melbourne (M ) MOI. MC, 33a 61, f>j, O3 3«4 3«4 J«4 3«4 iti lis J17 aiS J«4 35 « 397 ay? 2<)7 297 297 298 37 aii 33 29 44 45 61 64. 65 o()-io7 130 «3a 34a B Bankrupt : Lessee, as to, sec. 100 (M.) Lands of, to be held upon trusts applicable, sec. loi (M 304 J04 INDRX. 3)1 3J« 195 314 314 3«4 314 3»> 1S5 a«7 aiS J«4 35 « ag; 397 297 297 a.j7 298 Pi»Nl»; R^iiterthl ilealinga (laUycd Oil of iiuleninity in ca.iv-l>{M>k, form iin>l iitfl of, *rc, Ji (M.) .. BNIMilNO (.AND IINDKH I MK \CT St* AlTI.H ATION. Manner of HOC. jS (M ) ., ,. .. St0 Ai'i'i.u \riuN (M.) Dhitisii Cui.umhia : HeRidtration in Ilcneiit* of roKiHtrntion liiiri.ttiNii : Societies, conditions useful for Purposes, useful for .. .. .. .. new lislrictt, rA43 »44 33 MS "3 .13. »4 • 135 . ij6 37 aia 23 39 44 45 61 '3. f'4. f>5 10(1-107 .. 130 .. I Si .. 342 304 3"4 Cairns, Lord : His explanation of Hilt .. .. Speech of Canada Land Law Amknumknt Askociation Organization of ( M ). . Branch in Winnipeg ,. Circular of Association, January, 1886. Cancellation : In register, of spent entries authorized, rulr 55 Duty of Uenistrar-(Jeneral as to certificate, sec. hH (M.) If transfer is whole or part, sec. 67 (M.) Case, ok Cases: Statement of, for Court, form No 4^ Opinion of the Court may be taken 111 doultful, sec. 56 4»Vtf r* Irish (Appendix) " r^ Uannkkman (Appendix). " Short Cases, sec. 51 (M.) M *i 33 3 aat 22a 191 277 2>6 217 208 416 4'3 440 INDKX. t II IfFr Caution, ok Tavkat : Before applviiiK. Ht-arch for .. An to in transfer AKainst rt'KiHlered (lealinKH .. Rule iH Mow to Im) lodged Practice in Australia .. Agiiinht entry of land on reK'iHtcr Notii i; of, to \h'. lodged with Master of Titles Stf rult! 17, forms 16 and 18 ,. Search fhiiiild be ni.ide on application Should be renewed before the ex]Mration of five years To be supported by affidavit Comjiensation foi improper lodning of Not to affect the title or v:l,-iim of any person Sff rule 17 Section 70 relates to cautions after as well as lu-fore registration Cancellation of, ss. ;j Renewal of, every live years, rule 17 Hefore first registration, form No, !'> After first registration, form No. K) Affidavit in supix)rt of. form No. 17 Affidavit in support of, form No. 20 Who may lodge, antl for what purpose, sec. 107 (M.) I'oiin of, sec. 107, ss. I (M.) Duty of Hegistrar-Cicneral on receipt of, sic. 107, s-s. 2 (M) Kffect of, sec. 107, s-s. J (M ) I'roceedinKS for setting asitle, sec. 107, s-s. 4 (.M.) To lapse unless proceedings tali<, ok Cadtionkr : Entitled to notice of proposed registered dealings Master of Titles to serve notice on cautioner Caution to cease on expiration of prescril)ed number of days . . May use the power of inhibiting Entitled to notice of proposed registration of land I'AdU. •• J4 .. 101 105-108 .. 174 .. 105 I of) 107 .. 112 Hi 173-204, 2.)5 112 .. IIJ .. 114 .. 114 .. 115 •• '7J "5 IO() '7i 204 204 206 .)'>9 .UO . J'l .?" 312 313 JI3 313 2.54 105 105 105 1 10 114 INDKX. 411 Cavkator, or Cmitionkr — continued. To pay comj)o.isation for improper lo(l>»ing Notice to, form No. iH .. .. ,, Notice to, form No. .!i . . May apply to extend time. sec. 107, ss. 7 (M.) ('aveatek : Address* of, sec. 107, s-s. f) (M.) CkUTIKK AIK OK ('krtm'icatks; f liven on renistraiioii .. To bu reKisl»;ifd in the loi^istration (livi.'.ion when first brought U'l'^t-'r Of charge, lost . . Kiile 3J l'"orni No, -K /V(/;/(//(if»V cvidcnco, sec, 82 .. Ivflmnud on transfer of part, s<;c. 34, ss 4 Kule 33, s-s. 4 .. .. .. .. .. .. ,, New, may In; Riven, sec. Hi Rule 35 . . first, how dealt with, sec. 14 Of counsel or si)]icit(jr, rule 5 Of ownersliip, form N<>. 3 Of counsel, form No. 6 <)f sheriff, form ■'>o. 7 .. As to taxes, furm No. 8 Memorials to be recorded on diiplicafe, sec. 35 (M.) Of filini; or dismissal of any bill or answer may b(! registered (M.) Of satisfaction of inort^japes also, note (M.) Of registrar of rcf^istry ofJire U- be furnished, iwc. 40, s-s. i (M.) Of filing of applic.uion to issue, sec. 42 (M.) K'egistration therciif, sue, 43 (M.) Ki'Kislrar-Oi'neial may ooneut errors in, sec. 44, s-s. 5 (.M.) Of title, ReRistrar-fieneral shall endoisu on, certain memorials, sec. 44. s-s. 8 (M.) Of title, HeKistrar-Oeneial may dispense with pu'duction of, sec. 44, s-s. q(M.) Of title, may be granted fortluvith in certain crises, sec. 51 (M.).. I'liblication of notice bt^fore, >;raated, se-. ji (M.) Of title not to issue till adverse claim disposed of, sec. 5j (M),. Applicant's title found satisfactory, to issue, sec. 55 (M.) Of title, form of, anti seal, sec. 57 (M.) On subsefiuent transfer, sec. 58 (M) 1'. O. address of owner to be given on receipt of, sec. 59 (M.) .. t)f title to be conclusive evi icnci!, sec. f)2 (.M.) Kefers to the one issued by rcfjis'.rar, note, (M.) . . PAOB. 114 303 3" 43 45 '■25 iHi 196 127 78 l8t 126 183 45 169 196 "J9 199 200 246 248 248 250 2.SJ 253 254 254 2C5 266 Mi 267 268 269 2G9 271 272 442 INDKX. Certipicate or C.KmiPUATRf, I untinueti. paoh. I'raiid may vitiatf, not(! (M) .. .. .. .. .. .. zji To he conclusive evidence, should he produced, note (M.) . . 273 ('asc's 1)1) (M.) .. .. .. ., ,. .. .. 27J-274 First, void ns against person riKlitfuMy entitled in actual adverse occupation, sec. 127 (M) .. .. .. .. ,. 333 Notes on (M.) jj3 Kegistrar-tjeneral may consoliilatf, sec. ij8 (M ) .. .. 333 Hegulation as to consolidating, note (M.) .. .. .. 334 In cas. of loss of, sec. 1.29 (M., .. .. ,. .. .. 334 Australian practice as to, note (M) .. .. .. .. .. 335 Exceptions in grant noted on, sec. 134 (M.) , . . . . . 3^7 " No survivorship entered on, sec 144 (M.) . . . . . . 341 Frauiiulent procurement of, sec. 140 (M) .. .. .. .. 34^ Of title, form of, schedule C' (M) 34b Of title, land in, suhject to certain reservations, sec. fii (M.I .. 270 Of title, power of Registrar-General to amend, sec III (NT 319 To cancel, sec. iw (M.) .. .. .. .. 320 Of title, power of Court as to, sec. ii^ (M.) . . .. '20-321 Of title, Ci)urt has power to correct, cancel, etc , sec. 11 ^ (M.). . .}2i <.)f title, sealed hy Kegistrar-Cieceral, sic. 14 (M.) .. .. 2\i Of title, sealed and copy preserved, sec. 57 ( M.) . . . . . . j6 Of title, conditions implied, sec. 61 (.VI.) .. .. .. .. 270 I'rovisional, when issued, to contain an exact copy of the original sec. 129 (M.) 335 Cessation : Of charge subsequent to first registration, sec. 33 Kule 2j . . See Di.scHAKj)litati(in for discharge of, form No. 27 . . See MuKTUAUE. Chahi.ky, Mr. : ls of, on possessory title ,. .. ,, CllosB IN A( I ION ; Name of owner used, sec. ij2 (M.) .. .Si;^ sec. 89 (M ) Claim {iec Aovkrse^ : Section 53 (M.) . . CoMMKNCKMENT OF AcT : By pr<.>claniati()n Commencement ist July, 1SH5 Commencement Keal Frojierty Act, sec. 2, ist July, CoMMISSIONEK ; Ff)r taking affidavits, sec. 108 (M.) .. Out of Manitoba, note . . Power as to refjistration. abstracts, sec. 9.} (M.) Company ok Comi-anie.s: Sfr Appendix as to liuildinK Societies Compensation ; By person wrongfully entering caveat, sec. 107, s-s. Hee pages . . CONCKAI.MKN r : I'enalities, sec. 146 (M.) Conditions : Owner affected with notice of . . May be modified Transferee altected with notice of .. Covenants running with land same as, note How made as to transfer, s s i, rule 32 As to leasehold, ss. 2, rult; 32. . Under s. 8(), s s, 3, rule 32 Land in certificate of title subject t<>, sec. (n (M.). . Implied covenants by transferee, sec. 69 (M.) Covenants implied against lessee, sec. 72 (M ) Imjilied in lease or iiiortgagt!, sec. 75 (M.) . . Implied covenants by inortf^.igor, sec. yo (M.) Implied, may be negatived or modified, sec. 131 (M. CONSOLIUAIK).'; Of sep)arat(! certifuales. sec. 128 (M.) Ap|>lication may be signed by solicitor of applicant, Hegulatun in Victoria as to, note (M.) PAOU. ill au9 41 337 396 a66 28 29 1885 (M.).. 326 • • 314 3»4. 315 . . 399 . . )62 II (M.) .. 312 148, 149 ••343 note ..134 .. 134 .. 134 • ■ «34 .. i«o .. iKo .. 181 270,271 ..277 ..281 ..282 . . 29(> . . ii(^ . • 33^ e(M.) .. 334 • • 334 444 INDEX. 'II 1: Confirmation : I'agk. Of sale under exucution, sec. 104 (M.) .. .. .. .. jo6 Copy or Copies : Copies and extracts from books to be made by dork, rule 57 . . 192 Certi'io I, of uncancelled instruments, to be furnished, sec. 15 (M.) 232 Certified, shall be received as eviijence, sec. 15 (M.) .. .. 23a Of provision;d certificate, sec. i2'j (M.) .. .. .. .. 335 COKI'ORATION : Sre " owner," interpretation, sec 3, s-s. 2 (M) .. .. .. 226 Also sec, 3, s-s. 23 (M.) .. .. .. .. .. .. 229 CosT.s : Of tru3ii't!3 Helling by medium of registry. . .. .. .. 113 Declared by Master of Titles ,. .. .. .. .. ..116 Trustee m.iy re-imburse himself .. .. .. .. ..116 M.ister of Titles may order .. .. .. .. .. ..120 Applicant />Ww(/ /(ic.'i' liable.. .. .. .. .. .. 121 Appeal alloweil . , .. .. .. .. .. .. .. I2i Punishinont in case of disobeJioiico. . .. ., .. .. i2i In suit for specific perforin inc; .. .. .. .. .. 141 Provision as to taxation of .. .. .. .. .. 120,15;! As to solicitors . . .. .. .. .. .. .. 158,163 Same as like proceed in,;,'s in Hi^li (^)urt until tariff made . . 1O3 Witnesses, sec. 109, s-s. 5 .. .. .. .. .. .. 151 Security for, may be oidered, rule 15. . .. .. .. .. 173 Of brinKin-,' Ian I under Land Titles Act {see Assurance Fund.) Fees of oil ce settled by tariff, sec. 47 (.\I.) 262 Tariff in Manitoba, note .. .. .. .. .. .. 263 Average, note (M ) 264 No tariff of solicitors' costs either in Manitoba or in Ontario.. i6j Power to make rules and tariff of, sec. 137 (M.) .. .. .. 33X (^ourt to regulate, see. 115 (M.) .. .. .. .. .. 322 Until court rej,'ulates, fees same as at present in proceedinf,s of similar nature, sec. 115 (M.) .. .. .. .. .. 322 Plaintiff liable for (M.) 329 Counsel ok Solicitok : (.'ertiticate, rule 5 . . .. .. .. .. .. .. .. 169 Form No. 6 199 Court or Couuts : Interpretation, sec. 3 .. .. .. .. .. .. .. Jo May appeal to . . .. .. .. .. .. •• •• 108 Prescribed manner, rule 5y .. .. .. .. .. .. 192 May inhibit i<"J Appeal to 109 Intervention of, in ca^e of incapacitated persons .. .. .. 124 INPKX. 445 CouKT OR Courts— c/)»t/i»iMC(^ Miy order rectific'Uion of rcRister .. Mrister of Titles to ol)ey order of I'ower of, in casu of conviction PowiT to make k*"!'"'"''*' rule's, sec. lao May .liter or add to rules To make tariff of fees . . Fees subject to order of Court Duties nssipncd to particular Jud>?es of Appeal from Hi;^li ('ourt Appeal from Master to Court Master may refer case to, rule 14 . . Meaning of, sec. 3, s-s. If) (M.) Opmion of, may be taken by KeKistrar-fJeneral, srfc. 50 (M.) Judgment of, appoalabh?. sec. 51;, s-s i (M.) Jurisdictiouof, s(;c. 109 (M.).. Procedure in, by person dissatisfied with Hi^i;.-fien , sec. kk) Australian cases as to, notes (M.) HcRistrar-General may refer iloubtful points to. sec. no (M K(!(^istrar-('ieneral may apply to, in case of fraud, sec. iii ( May examine persons on oath. sec. 1 12 ( M.) May decree on further directions, sec. 1 13 (M.) .. Same rif.;ht of .appeal to, or from, as in other cases, sec. 114 May regulate fees payable, sec. 115 (M.) .. Covenants : Implied, to pay charges St-e rule 21 In case of leasehold Implied, or transfer of leasehold, sec. .,4 . . Or condition runninf» with land, registration of, sec. 86 Conditions, rule 32 Negativing; implied, apfJlicaticm for entry of, form No. 33 Implied, by transferee subject to mortgage, sec. 69 (M.) Implied by mortgagor, sec. 90 (M.) .. Implied, may be negatived or modified, sec. 131 (M.) Implied, to have force as if set out, sec 131 j\i.) . . When instrument executed by more parties than one, sec. 131 Creditor, or CKi;i)iroRs: Assignee for benefit of, to be registered, sec. 99 (M.) Regarded as special owner, note (M) Case in .\ustralia, note (M.) Crown : Application by . . Immediate grantee from, need not register, sec. 39 (M ) . . Registrar-General may enter caveat for, sec 44, s-s. 6 (M.) M.. PAOB. 141, 142 • M3 144 •• '57 • • ' 5') 159, I()0 .. 163 .. 1^4 U14 i(>4 .. 17a .. 228 26S . . ?.(>H • ■ i^a (M.) 316 316. 318 .).. 318 M.) 3«'> • • 3-'> • • 3-1 7i '75 73 H? 'H I Ho 212 277 29(1 33'> ii<> 337 3"3 303 304 37 24.; 254 (M.) 446 INDKX. Curator: paoi. Any person rfKistercd n.s. to act in place of deceaHod or bank- rupt, sc . loi (M.) 30^ Curtesy: HiKistiatiiin of notices of estntt's by. . .. .. .. .. 103 Rule !is to, riih; i7 .. .. .. .. ,. .. ., 17K Application for entry of, form No. j6 .. .. .. .. aij Al>olitic)n of tenancy by, s< c, 15 CM.) .. .. .. .. 241 Old feudal ideas abolished, note (M ) .. ,, ,. .. 241 'ii;-'; '■ i^ I)AMA(iKS : Wronyfidlv enterinp caveat, IS. 11. sec. 107 (M).. Hy itction .lu'.iinst nominal defendant, sec. 117 (.M.) ,\(;ainiit person upon whose application land was registered, sec. 117 (M.) No dania)4(s upon transfer for value but recovered from assur- ance fund, sec 117 (M.) .. Little risk of, as sliosvr. in Australia, note (M.) .. Action for, may be brought against KeR -tJen. sec. 120 (.M.) Case with regard to, note (M.) None unless action commence within six years, sec. I2J (M.) . . l-'xci'pt in cases of disability, sec iJ2(M.).. K(Histrar-(ii neial may recover in case of death or voluntary exile, sec. 123 (M.) Assurance fund not liable for, by breach of trust of owtier, sec. ii^{M.\ Nor by misdescription of boundaries, sec. 124 (.M.) Day Hook : Ki;Kistrarfien('r.il sh.all keep, sec. 31 (M.).. Day, hour and minute of tiling instruments to be entered, sec, 31 (M ) Dkahnos : Ke^jistered, with registered land I'nrenistered, vMth registered land .. Effect of unwyistered liihihitinK ivi, refers to registered M.inner of bringing land under Act, sees. 38 and 39 (M.) Transfers (M.) Leases (.M.) Mortgages (M.) .. 3«J 324 3^.5 3-!5 327 .12K 32'» 330 331 331 , , 244 3' 244 70. 100 100, '^'3 100 log 248. 24(J 275. 280 280, 2«3 284 iqv ^m INDEX. 447 I'AOR. 2>)H, yu) 3.f, to be furnished applicant sec. 48 (M ) " Of title, on remov.d of, applicmit to publish advertisement sec. .((J (M.) Descent of Lani^s: Cio as chattels re.'l, sec. 21 (M ) Kffect of conveyaut; of, sec. 2.' (M.) Devisee to take from personal representatives, scc! .- 5 (H) Deim-tv : Appointment of, in case of illness May be appointed with rdl the powers, sec. 12, (^i.') " " Dbhcription : Registered land, as Master of Titles thinks fit, sec. 85, s-s No alteration in, except, etc , sec. 85, s-s. 6 Revised, may be allowed by .Master, rule 48 » * • • • . . 94 •45 .. ity 120 MJ. 144 . . 2b7 287 2f,4 235 240 '5J -32 130 13" 187 448 INDKX. DiChCKii-TioN ciinlinucil. PAOl. KeKiHtr.trCitMiornl may correct nrrori in, mpc. 44, ■•■. 5 (M ) .. i33 I'ruviaion with rcK'iril to map ami ineaitiironiuntK. si-c. 44. i-a. 10 (M) a35-'5'> Ad to paitH of Ir^al Htib-diviHionfl, Hflc, 44. A-fi. II (M ) .. .. 236 In trannft^rring inner hoiiHn of n tiTrace, note (M.) . . . . 376 In case of mi<»(lato firHt, ste re Hasnkhman (Appendix) (M ) 41 ^ f-ands coming to, held as chattels red, sec. 21 (M) .. ., j.^s OisciiAKr.i'. : As tu MuildinK Societies ,. .. .. .. ., .. 77 Of I)iipr.irATB (.SV«> Ckhtikicatr) : faoi. Memnriiil l<> 1)0 enilorned on. sec. 44, s s 8 (M.) jjj When prdduclion of Lerlificale tlis|)uiiH(!i;tiks: Of Kt-Kistrar-Cieneral, »cc. a8 to iec. 37 (M ) .. .. .i4.j.348 Of Krj;istrar-r,<'nfTal to exaniiiui «itl«', scr ttar(;»niral, set- 44 (M ) ^52 Of Ht«istrar(;ent;ral caniellinK certificate, sec. 08 (M ) . . . . 377 E I'.ASliMKNTS; Nt)t ilecmed incumbrances under secliun a ,, Sfattrrnenl in ccitilicatt! with regard to .. ,, ,, I'lobaiive force of this stateiniMit Cases in Australi.i as to To be enterrd in resistor book, sec. 66 (M) Enciimhka.nck : Interpretation of. sec. 3, s-s. c) (M.) C^c'ssation of, sec. 85 (.VI.) S« MORTGACiE (M) Transmitti'.l by will, sec. 98 (M.) Stf I.M( UMIIKANCES. Estate subj.ct to, implied covetiants by transferee, sec. O9 Prior to ^rant may be filed, sec. ly). (M) IlNiMIMBKANCKK : Interpretation of, sec. 3. H-s. fj (M.) Encumbrancer : Interpretation of, .sec. 3 s-s. 8 (M.) E.VDOR.SEMK.NTS ; On certificate of title, sec. 44, s-s. S (M.) If transfer t;iidursed on instrument no iluplicate necessary 65(M.) Entrv : liy owner of charge to obtain satisfaction of any moneys Euuitaulk iNTiiHEsr: Remarks on .. .. .. ,. .. ,, i'rotectcd •• .. •* •• «« Ste Tki;sts. 2'J f)o, t-', 63 .. 63 .. 6j .. 276 .. 227 •• ■2Q3 284. 2g6 • • 302 (M.) 277 • • 339 ., 227 -•5t sec. ^75 74 ..80, 82 100, 101 U 4 no INDKX. M lit ii w EuUiTAMI.K MoHTUAOBH ! rAOB. 14y tUipimit of litlit ilnnla .. ., ., .. .. .. li; KecoxniaoMl in Aiii«ir.ilin .. .. ., ,. ,, .. t.-H .SVi- Mt)Hlt><\l{iiishi:il by nuinliers, rule 47 .. .. .. .. 187 No words of limitation necessary in any conveyance, bcc. 33 (M ) 339 No conveyance not precluded fiom ojierating by estoppel, sec. Z2(M.) 3J9 Words in conveyance limited to personal, sec. 23 (M.) .. .. 340 Dower abolished, sec. 24 (M.) .. .. .. .. .. ,. 240 ('uricH> abolisiied, S(;c. 25 (M.) .. .. .. .. .. 341 Husband may convey to wife, sec. 36 (M). . .. ., .. 341 Hstatc tail alxilished, sec. 37 (M ) .. .. .. ., ., 341 Ctrantee from '"rosyn cannot change feu simple into fee tail, sec. '3«(M) 339 EVIUKNCK : Where absolute title required. . .. .. .. , .. 37 Where possessory title recjuired .. .. .. .. .. 40 Of title required. . .. .. .. .. .. .. .. 48 On examination of title .. .. .. ,. .. •■54.55 Of traniniissioii of renistered ownership .. ., .. .. 93 Copies of documents lieposited to be, rule 44 .. .. .. 186 Master may require viDrt rocf, rule 46 .. .. .. .. 187 Verification of instruments, rule 45. . .. .. .. .. 187 13ef(;re whom aflidavits may be sworn, rule 40 . , .. .. 187 Sie Affiimvit. li' '• INUKX. 4et\ ■nc lid, F.viDhNi K- (ontinutil. KeKiHir.u c. 44, ••«. .\ {W ) Any, ri>t:tMvat>lti m any ('ourl of M,itiiii)l).i ald, mc. y ApplKMiil Hhnll furnith, HUi. 40 (M.) ,. In I'jci imrnt, NIC. iir> |M I •■ Certilknifof ntli^ ntiHoliiinharii,oxct'pl in csrtain casett, H-M I to 7 (M ) To nfii'uriain if imrchiiM Ia fur valuahlu c msuleration, (•vl*|i* •• •• (• •* ■» •# Examinkrn op Titlih : I.iiMiti-n. iil< lovnrnor mny appoint, mk:, 17 (M.) . . Ni> provmion that they may not praciice, note (M.) May rripiiri! tiuip or plan ut land, rcc, 44, •••. 10 (M ) Examination : ■ec. ijo of titlf by Master I'lv ii lento f)n Of titio by UcKistr (I il. j8 (M.) ilrp«)sit iinera On examination KigiittrirCicniral may rcipiiro owner tn map, Ncc. 44, H-s i(i(.M),. I'Aiilciii ir leipiinil on, sec. 41) (M.) .. EXCKI'TIONH : As to rt'Kistert^il ovviitT with absolute title . , In cerlilkates of leaseholil .. I^xi'.ii rioNs : How entered and dischar>{e h % IMAGE EVALUATION TEST TARGET (MT-3) / y / O W < Mir* ,.. m^ W. 'd<9 (A 1.0 I.I 1.25 '^IIM IIIIM ■^" 12.0 1.4 1.6 I "/} ^ /}. ^;. VI ^a o 7 M Photographic Sdences Corporation 'C iV «v \\ -^ ?b b "^ 6^ % V ^'' 23 WEST MAIN STREET WEBSTER, NY. 14580 (716) 872-4503 <^ WJ>. <'\^ *if % • igi 331 233 276 124, 125 .. 137 •• 137 44, s-s. 6 ..254 ..329 s-s. 3 102 2()2 109 log ro6 174 207 . .. 187 .. 228 .. 232 64 (M.) 274 468 INDr.X. Instkumknt or iNHTRtJMHNTS — continued. Must he executfd according \o \ct, sec. 64 (M.) How ti) bt' witnessed, sec. 108 Note on Intkki'ketation, Section 3. " Court ". . " Owner " "Transfer" " Person " "Master of Titles" " Prescribed ' . . . . . , .. " Kt'Risteri'd " . . " Sworn valuator " " Land," sec. 3, ss. I (M.) " Owner," sec. j, s-s. 2 (M.) . . " Transfer," sec. 3. s-s. 3 (M.) " Mort^rase," sec. 3, s-s. 4 (M) " Mortgagee," sec. 3, s-s. 5 (M.) " MortH'iKor," sec, 3, s-s. 6 (M.) " Encumbrance," sec. 3, s-s. 7 (M.) .. " Encumbrancer," sec. 3, s-s. 8 (-M.). . " Encuinbrancee," sec. 3, s-s. g (M.) " Eunatic," sec, 3, s-s. 10 (M.) " Person of unsound mind," sec. 3, s-s. 11 (M.) " Instri- ment," sec. 3, s-s. 12 (M.) . . " Kefjistcr," sec. 3, s-s. 13 (M.) " Registrar, ' sec. 3, s-s. 14 (M.) " Sworn valuator," sec. 3, s-s, 15 (M.) " Court, ' sec. 3, s-s. 16 (M.) ., " Judge," sec. 3, s-s. 17 (M.) .. " Transmission," sec. 3, s-s. 18 (M.). . " Grant," sec. 3, s-s. ig (M.) . . " Indorsed," sec. 3, s-s. 20 (M.) " Possession," sec. 3, s-s. 21 (\L) Effect of describing a person, sec. 3, s-s. 22 (M.) Meaning and effect of words, sec. 3, s-s, 23 (M.) Introduction : Land Titles .\ct, , Manitoba Act . . Irregularities : Not to invalidate proceedings, S2C. 127 Or informalities not to affect entries in register, rule 55, See Informality, PAOB • 274 • 3«4 3'5 30 30 30 30 30 30 30 30 226 226 226 226 227 ■127 227 227 227 227 .'27 228 228 228 228 228 228 228 229 229 229 229 229 I 221 165 191 INDEX. 169 J JUDC.E : AssiRnment of duties to particular .. Meaning of, sec. 3, 8-s. 17 (M) .. .. .'. [[ Ste Court. JUDOMKNT : OJ' Court, appealable as other judnnients, sec. 114 (U.) .. Juhisuiction: Of Legislature . . CaaoQiicn V. Si. CiitlKiriins L, Co. [ Of the Court, I'art XIV. sees. 109 to 115 .. .. ,[ I'AiiK. 164 . 328 331 50 5". 5' 315-J22 L\Nn Law Amendment Association Hranch of same, C. J. Hrydges, President ., Land or I-ands; Transfer of, in Scotland and Ireland Application by Crown to bring, under Act . . HeRistered, liable to easem(;nts Certificate, delivery uf, on transfer Freehold, transmission on death L-^asehold, transmission on death I'arcels of, to be separately numbered, rule 47 . . Transfer of, form No. -.;.S • • • • • • • • By endorsement, form No. 30 In parcels, form No. 29 Meaning of, sec. 3, s-s. i (M.) Title of owner to, subject to qualifications, sec. 61 (M Conveyed according to Act, sec. 64 (M) Owner out of Provinces sec. 93 (M.) Owner subdividing, to file map, sec. 130 (M.) Chattels real, after July ist, 1885, sec. 21 (M.) Titles Office, to be in Winnipeg, sec. 4 (M.) Titles Office, upon establishment of new, books furn 16 (M.) Unalienated, after July 1st, 1885, are registered (M ) Proceeding on issue of patent, sec. 29 (M.) Not to apply to, under Manitoba Act, sec. 28 (M.) See Register. ished. sec. 3 223 29 37 60 73 89 90 187 209 210 2IO 226 270 274 298 336 235 230 233 242 *43 242 400 INUKX. :■. h Land ('KHTiri( \tb : PAOI. Cilvon (111 re^iHtration .. 4^ liOit, now cne xranted 'ij. •'»s Proiliictifiii iif .. 44 Lost .. m Master of Titles uratil new oiu! .. 123 Kul.MS .. iHj /V////i(/(i(/i' »)viili'n<'.«i .. .. la; IvHiivaluiit to depoiit of titio ileods, sec. Hj . , .. 127 See Ckrtikicatk. LaNII KudlSTKY : Shall lu! cst.iblistiod .. 3» Hy wiioiii to Iti- coiiilucted .J! DitTeience from former syHtem 31 OfTtce of, constituted 1 50156 Seal of oiiiix' .. 150 Master to frame forms .. • .. 150 Master to siinunon witnesses .. 151 Penalty for not aiiswurin« •■ '53 Appointment of deputies .. I5J Oaili of ollicc .. I5J Hond of Master of Titles .. 154 New bonds ..155 See Kegistuk. Land Titlks Act : Citation of Commencement of, ist July, 1885 .. Leash : Determination of, existing; at first registration, sec. 24 See Kule 28. . Master of Titles shall notify . . Manner of registeiin^ notices of Office copy of, sec. 20 vSV^ Rule 34 . . As to fresh copy, rule 34 Copy of, if lost New copy of, rule 35 . . Copy of, equivalent to deposit of title deeds Depo.sited, to remain in office, rule 34 Application to register notice of agreement for, form No For term exceeding one year, sec. 71 (M.) Right to purchase by lessee, sec. 71 (M.) . Obligation of lessor, sec. 71 (M.) Proviso as to land encumbered, sec. 71 (M.) 38 • 23 28, 29 66 178 66 02-ioj 53 183 '«3 125 183 127 183 214 280 280 280 280 Implicil toviitinnts in, sec. 7a (M). I. raymiiit ..f r.nt, .mc. 73, h-h, i ( i To kotjt in repair, hoc. jt, n-s. a Surrender of. sfc. 7fi (M) Surrerwler of, in inHolvcncy, sa;. Hj (M Morlg.iKeo m.ny cancel, »ec. 8j (M) Tr.insftT o/, sec H- (M ) I'orni of, ■,iIum1uI(! M (M.) .. '^' Transfer of, schediiU' A (M ) K(!Ki'*lr,iti(in of, s(!c. H« (M.) K'iKlits of transfuieu in, sec. Hq (M.) In cnso of loss of, see soc. ijg (.\I.) Srr f'tlifilSTKAK-fiKNliKAt, M.) un . a8i . 3HI . a8j . aiji 295 354 J43 295 396 334 Leaseiiom) Land: Appli.ation for registration Kc.Kisti.-,tinn of ,i, .St registered ownor with d"Jc.Iarat'ion of absolnt..'* " ^^ title of lessor HeKistration of fust reKistered owner 'of, without .i dcclar.\tion of title of lessor to srant lease Transfer of . . '* *• *' •• It Kvidenco of tiilo fur registration required, soc. 16 May he hrouK'ht under the Act, sec. jS (M.) . . ,] See OwNEu, sec. 3, s-s. 2 (M.) Lessee : May apply to Maste. of Titles to regi.ster notice of lease Includes le-al repre.sfntatives, 5,ec. j, s-s. 23 (M.) KiRht to purchast; by, sec. 71 (M.) Implied covenant.s against, sec. 72 (M.) Lkssok : Should bo served with notice of application to bring land under May have a qualified title to grant lease .".* .*.* .'." '" \l Shall include pers(,nal representatives, sec. 22 (M.) Oblig.uion of, to transfer, sec. 71 (M.) If inci mbered, consent of encumbrancee required", "sec. 71" (M ) 51 84-88 48 348 326 lor 339 2 Ho 38l 49 Towers in favour of, sec, 73 (M.) liEOISr.ATURK : Jurisdiction of 22g 280 281 281,282 Liability : Of registered land 1. Taxes 2. Municipal charges 30 60 60 60 4(i'2 INDKX. LiAUii.nv —tonliHHtd. J. I'ulilic hiKhwny nmt raHcmonti 4, Titlcii of a(lj()iiiin»< owtmr , , 5, I^nRfl . . . . . . . . 6, Appropriutinn by Hmtiito 7, UiKhl of (l()w«>r (If curtwHy H. UixhtH (noMtiunivl in ipciinn <), ss j UegiHtriir-Oonural not lialilo, ncc. !<> (M.) .. Stt Imi'I.iku Cuvknantm. LiKirrKNANT-CiOVUHNoK : May altor forms (M ) Limitation : Htattie of, not to apply to certified title, tec, 33 VVorls if, not neiccssary, »ec. 2i (M.) Of actions, Mtjc, 142 (M.) Lis Tkndknh : Not to bo rcKiNturoil Caution to b() tintftrud . . ., .. .. See Cavkat : Lunatics : Intorvnntion of court in cise of Tovvor of court to bind in'erests of .. Ouinlian to Act. . If none, Master of Titles may appoint Meaning of (M.). • • 1 .. .• Hit- Ini-ants. I'AclK, Ao r>o fw 60 f.l' 338 jay "1 li., 'J7 2^7 M McCarthy, Dalton, Q.C. Bill introduced by, 1883 ,, .. .. ., Manitoba Act : Citation of .. .. .. .. .. ., Tariff of fees in . . Tatties entitled under, not subject to this, sec. 28 (M.) Maps: Note on, s-s. 3 . ■ • • Rule 47 . . f • !• •• •• Rule 49 .. Kule 50 . . Required (M.) On certain scale (M.) .. What, contain and how certified (M.) 223 23 263 242 130 187 188 189 255 255 INUKX. •urn MAHNIlin WuMAN : I'or |.iir|i. m-!* of Act ilrcmed a ftmmt mU Al)")li»i.iii of ilovvijr, •«€, 44 {\|.) Marrin^u ctf famale uwimr, how enltre'l (M.) Mahon, J. IlKHHiuir S'Tvu: 'n in t minm tJDn wiih TorreiM Hyulnm KxtMct ffDfn Imtiiio by . . Mahtkh OF TiTr.K'8: Apiiointiiieiu of Iiiterpr.t.itioti, «t'c, 3 Must h« n bnrriHiur, m yoarH itinndiriK Widi; (lin(:r«;lii)ri ftlluweil II.TH (list ri'tioii ns»t> piil)tic.itiori .S'lv kulo<) Same ai n-Kistiar iiti(l,'o To appoint owner on transmission Writ ent(!n,d bv, on receipt from sheriff In caseof satisf.iction of On sale by sheriff, shall mail notice Sliall re^jister the purchaser On s lie for taxes, shall cause notice to be mailed. . Shall rofjister purchaser, sfc, 5j To resistor notice of lease To ret-ister notices of instates in dower, or by the curtesy To serve notice on cautioner warning him that lantinn will As to caution, to delay on boml boini< given As to lixif-inj,' caution svithou t reasonable cause with App-jal from See Rule 59 May inhibit • ■ • • • • • • < . May annex conditions, sac. 62, f-s. 2 Appeal from '• •• (t Duty of, as to restrictions To enter restrictions in register ,, cease PAOB. .. i»7 .f J4U .. 3 >i) 19 ..17. 19 •• .1« .)0 • 3« •..««. 39 17". «7I .. 4a ••M. 53 •• 54 .. •• 93 93 • « u!J .. 9S .. 99 m .. 102 . . io« 107 X08 loS 193 lOiJ lOQ loy no I ti 464 INDKX. Mi Master of Titles — continued. Not to register lis pendens . . . . May enter a c ' ition .. May order production of deeds Appeal from Punishment in case of disobedience of Shall stamp deeds with notice of registration May state case for High Court In case of doubt . , Opinion of court conclusive unless appeal May grant new land certificate, office copy or certificate of Rule 35 When old certificate delivered up . . Sub-section 5, rule J3 . . May register sjiecial hereditament . . Not to register trust . . As to prescribed number of owners. . As to descriprion, sec. 85, s-s. 5 As to alteration Indemnity of May appoint person to act as guardian To frame and promulgate forms To summon witnesses . To require production of maps To examine upon oath Charges allowed Master . . Appointment of deputies in case of illness Oath of office Bond of . . Not to act as agent Indexes to be kept Salary of Inspection in Master's office .. Advice in making rules . . Discretionary power of, rule 54 PAGE. 113 113 7,118 118 118 120 121 122 I2Z charge 125 183 126 182 128 129 129 130 130 136 137 150 151 151 151 151 153 153 154 155 156 163 156 157- 158 191 Memorial: To be entered in register (M.) . . , . . . 246 What it shall state (M.) 246 To be recorded on duplicate, certificate by Registrar-General (M.) 246 MiLLUR, Hon. James A. : ^irst Registrar-General 223 Mines: Registry of Exceptions in certificates (M.) 128, 129 • • 337 INDEX. Mistakes : In proceeditiRs not to invalidate, sec 127 MORTGAGK, OR MORTGAGES: Land may, with consent, be brouRht under Act subject to Of registered land How, may be made Form 25 .. iile 21 . , Is only hypothecation Australian view.. Prescribed manner By deposit, sec. 83 Transfer of, form No. 26 Transfer of, form No. 31 .. .. [ Transfer by endorsement, form No. 30 Application, discharge of, form No. 27 Meaning of (M.) Before grant may be filed (M.) Transferee subject to implied covenant in (M.) Default in payment of, notice in such case (M.) . . * ." Sale under, power to sell (M.) Discharge of (M.) Transfer of, by form " A," of part by form B. (M.) " Form of . , Shall not operate as transfer of land (M.) Mortgagee, or Mortgagees : May sell by medium of registry Cannot apply to have nominee registered (Charley) Meaning of (M.) Describing a person as, shall include the heirs, executors etc Bo;jay?rftf, not liable for damages (M.) Not bound by lease subsequent to mortgage unless he has sented, sec. 71 (M) Power to sell (M.) . . . . ] , Receipt of, discharge to purchaser (M.) Mortgagor : Meaning of (M.) Describing a person as, jhall include heirs, etc. (M.) Entitled to pay money, in case of absence of mortgagee may Provincial Treasurer (M.) Implied covenants by 466 PAGK. 165 •• J3 .. 70 70 •• 20JJ .. 175 •• 71 .. 71 •• 7t .. 127 2og . . 211 . . 210 ■ . 209 .. 226 •• 339 •• 277 .. 284 .. 288 .. 292 •• 295 284, 350 .. 285 "5 116 227 229 326 (M.; con- pay 280 288 292 227 229 294 296 SO 466 INDEX. N Negativing : page. Implied covenants, application for entry, form No. 33 . . . . 212 New South Wales : Working of system . . . . . . . . . . . . . . 29 New York : Benefits of system discussed .. .. .. .. .. .. 3 Disadvantages of present system 17 Nominee: May be registered . . . . . . . . . . . . . . 34 Not .nore than prescribed number 34 Notice., or Notices : Of application to be served on lessor . . . . . . . . 49 Given by Master of Titles on examination . . . . . . 54 By registration of contents of instrument . . . . . . . . 92 Of executions .. .. .. .. .. .. .. .. 93 Of leases, manner of registering .. .. .. .. 102-103 Registration of . . .... . . . . . . . . . . 103 On lodging of caution, cautioner entitled to, as to unregistered land .. .. .. .. .. .. .. ..112 Address to be furnished Master of Vitles for ,. .. .. 13S Service of .. .. .. .. .. .. .. ..139 Envelope containing, to have " immediate returns " endorsed on 139 Purchasers not affected by omission to send . . ' . . . . 140 To adverse claimant, rule 10 .. .. .. .. .. 171 lt\ Gazette, etc., rule g .. .. .. .. .. .. 170 Preparation and service of, rule 52 190 Substitutsd service, rule 53 igo Such additional, as the Master may consider requisite, rule 11.. 172 To the parties appearing to be interested, rule 3b .. .. 184 See advertisement, form No. 9 . . . . . . . . , . 200 To objector, form No. II .. .. .. .. .. .. 201 To adverse claimant, form No. 12 .. .. .. .. .. 202 To cautioner, form No. 18 205 To cautioner, form No. 21 206 Of intention by Registrar-General to dispense with productions of certificate of title, etc., to be advertised for thirty days (M.) 254 To be published at least three weeks before certificate granted (M.) 255 Omission to send, effect of (M.) 274 Of intended registration of sheriff's sale, to be given to execution debtor (M.) . . . . . . . . . . . . . , 307 Before issuing provisional certificate (M.) 334 INDEX. 467 o Oath : Of office, Registrar-General and Deputy to take (M.) Of witness (M.) Ohjections : To first registration, form No, lo . . Objector : Notice to. form No. 1 1 Offence : Suppression of deeds and evidence Procuring fraudulent entry . . Punishment of . . False declaration No conviction of, to affect civil remedy Answer to any question not a criminal Office : Of Land Registry PAGE. . 232 • 314 201 15 Seal of Rule 44 Rule 52 Books of Open to inspection, sec. 118 When to be open, rule 60 Hours and days of attendance (M.) Officer, or Officers : Illness or absence of, Lieutenant-Governor may appoint deputy (M.) / No, or clerk to act as agent of investors of money, nor as conveyancer or adviser of titles (M.) Under the direction of the Registrar-General (M.) To hold office during pleasure (M.) Omission : To send notices, purchaser not affected by, sec. 93 Ontario : Practice as regards boundaries in Of court for transfer of estate when held by joint owners sec M5(M.) Order : Owner : May bring ejectment Title of, made as perfect as possible, subject to the rights of lessor Adverse possesion as against 201 M3 144 144 145 145 145 0-156 150 186 igo 156 156 193 234 232 234 230 344 140 61 342 40 52 67 468 INDEX. OwuER— continued. May mortgage (see Mortgage) Interpretation .. May apply to be registered . . Not registered as, till title approved Estate of, with absolute title With possessory title . . With qualified title Land certificate given to As to leasehold land . . Prescribed number of Evidence for Estate of, in leasehold land . . With declaration of absolute title of lessor Estate of, without declaration, etc. With qualified title Office lease given to . . . . . . Entry by, of charge May foreclose . . Remedy with power of sale , , Registered, may transfer land May transfer charge Alone entitled to transfer registered land Subject to right of, may create estates Alone entitled to transfer registered charge I'art, registration Registered as joint, in same manner as individual owner Part, subject to prescribed number . . Si'e Rule 37. . Affected with notice of conditions . . Condition may be modified . . Certificate of ownership, form No. 3 Meanmg of (M.) Signature of registered, to be furnished if required (M.) Female, on marriage procedure (M.) Registered, P. O. address of, to be given to Registrar- General in writing, sec, 59 (M.) . . Name of, may be used by beneficiary (M.) Joint transfer by order of court (M) Ownership; Registration of, to be on separate folios and properly numbered (ijx.l •• •■ •• •• ■• •• ■• •• ■• PAGB. 70 30 33 37 39 40 42 43 46,47 47 48 49 49 51 52 53 74 75 75 78 8S 100 100 100 "7 117 117 184 134 134 196 226 269 30& 269 337 34* 269 INDEX. 469 Parcels : Of land to be separately numbered, rule 47 Part Owners : Registration of Registered as joint owners in same manner as individual owner.. Subject to prescribed number See rule 37 . . . , .. ., ,, Patents : When issued, to be deposited with Registrar-General (M.) Payment: To be made for copies, forms, etc., rule 43 Of taxes, certificate of, rule 7 Of mortgage moneys may be made to the Provincial Treasurer in certain cases (M.) Out of Assurance Fund by Provincial Treasurer (M.) .. Penalty, or Penalties : For suppression of evidence . . For procuring false entry For false declaration or affidavit For non-attendance For refusal to answer questions For false statements, etc. (M.) Any person refusing or wilfully neglecting to produce (M.) Person, or Persons : . Of unsound mind, intervention of court in case of Absent beyond seas Yet unborn Power of court to bind interests of Interpretation, sec, 3 Registered, not to exceed four, rule 37 Of unsound mind, meaning of (M.) Personal : Representative may be proceeded against (M.) Plaintiff : Liable for costs if unsuccessful (M.) . . Possession : Adverse, as against owner, sec. 25 . . Cases on . . . . . . , , .... Meaning of (M.) pagb. 187 117 117 117 184 243 186 170 294 325 143 144 145 153 153 343 344 124 124 124 124 30 184 227 330 •329 67 67 229 470 INDRX. Possessory Titi.k : Evidence rt'(iuire;l tobrinR lanrl under Act, sec. to Kfffct of, sec. 11 Application for, sec. 5 . . POWKR : Of sale Exercise of, by owner of char^'e Of attorney, form No. 44 Revocation of, form No. 45 And duties of ReRisfrar-Oeneral (M.) Of attorney, to be in form H (M.) . . Revocation of (M.) How to be witnessed (M.) Of Registrar-General in case of fraud or error (M.) PAGE. 41 • 33 75 75 217 218 25a 297 207 314 319 Practick : On examination of title by Master . . As regards boundaries in Australia In Ontario Pkescrihed ; Interpretation, sec. 3 .. Number not more than four . . General rule 37 . . Manner as to determination of lease Rule 28 Form as to mortt^age . . Manner as to transfer of land Forms 28, 29, 30, 31, 32 Number of days before caution ceases Rule i8, 14 days Practice in Australia . . 55. 56, 57. 58. 59, 60 61 61 30 H .. .84 66, 67 .. 178 70. 71 .. 78 209-211 .. 105 106 106 Priority : According to time of registration, notwithstanding any express, implied or constructive notice (M.) 245 301 Probate : Of will, how registered (M.) Procedure: As to patents (M.) ?.« PRdDUCTION : • Of land certificate . . . . . . . . . . . . . . 43 Of deeds .. .. .. .. .. .. .. ..117 Registrar-General may require production of any grant, certifi- cate of title, etc. (M.) 252 INDEX. 471 Proofs : For first registration, rule 3 Rule 6. 8 \[ Mado in Master's discretion, rule 6 .. ,, I'KOl'KIETOK : Describing a person as, shall include heirs, etc. (M.) PttOSECUTlONS : In name of Provincial Treasurer (M.) Provincial Tkeasurkr : To receive mortj,'.ige moneys (M.) .. .. ,, ,.• 1'kovisionai-: Certificate (M.) Puni.icATioN : Of advertist;inc;nt, affidavit of, form No. 15 Notice to be published before certificate granted (M.) . . PUBMC Hlf.llVVAV ; Not deemed incumbrance under section 22 FURCHASK : Money, how to be applied by mortgagee (M.) Receipt by mortgagee for, under power of sale, discharge purchaser (M.) Right of lessee to, how to be stipulated (M.) Bona fide, not liable to action for damai;es (M.) . . From registered owner not affected by notice except in cases fraud (M.) Purchaser : Application by .. ., .. .. ., ,, Not affected by omission to send notices PAOK. 1O7 170 170 229 344 294 335 202 .a()6 6a 289 326 J26 340 37 1 40 Q s Qualified Title : What it is ... . . . , , . . . . .0 May be registered in certain cases, sec. 12 42 To grant lease, lessor by, sec. 19 .. .. ,. .. .. cj Questions : Doubtful, arising on title .. .. ., .. .. 121-125 Quieting of Titles Act : Precision of, not necessary . . . . . . . . . , , , 3^ Except from, as regards evidence 38 Examination of title .. .. ,. .. .. ,. .. ba Difference between, and present Act 6g 472 INPRX. 1.S ^:£ Rkai. I'koi'kkty Act, 1885 : p,\(;e. Citation uf (M.) 223 Rk-Hntry : ReRistrar-General to note in refiistcr the re-entry of lessor (M.) 28a Heferknck : To court by Master, form No. 43 .. .. .. ., .. 217 REFirsAL : To comply with requirements of sec. 44. RcRistrar-General need not proceed with registration (M.) .. .. .. .. 256 Of Registrar-General to entertain application (M ) . . . , 256 Of assignee or trustee of lessee not to affect a cause of action already commenced or accrued (M.) .. .. .. .. 304 Register, or Registry : Discharge to be notified on . . . . . . . . . . . . 76 &W Rule 23, sec. 33 .. .. .. .. .. .. 76 Sfd sec. iDO, Victoria Act .. .. .. ., .. 77 Trustees may sell by medium of .. .. .. .. 115-116 Rectification of .. .. .. .. .. .. ..141 To be rectified by court ., .. .. .. .. .. 142 Separate folium for each parcel, rule 55 .. .. .. .. 191 Spent entries on, may be cancelled, rule 55 .. .. .. 191 Number ot transferor and transferee 55 s title to be noted On first entry, form No. i Of partial interests, for.n No. 2 Meaning of (M.) • Duplicates of certificates of title to be bound in (M.) Registered Charges : Priority of Discharge of, to be notified on register Registered Dealings : Caution against How to be lodged, sec. 58 Cautioner entitled to notice of proposed, sec, 59 Delayed on bond being given Master of Titles may delay on bond, etc Power of court or master to inhibit Registered Land : Liable to easements, etc. Unregistered dealings with . . ; Described as Master of Titles thinks best, sec. 85, s-s. 5 in, rule .. 191 •• 194 •• 195 .. 228 •• 243 .. 76 .. 76 105-108 .. 105 .. 105 .. 107 107 109 60 100-103 • • 130 INDKX. 47S KKr.isTKKKD Lands— <-o«//»(Mir(/. paok. No alttiration shall 1)0 made in description .. ., ., ijo Annexation of conditions to .. ,, ,, ,. ,, ,, i^g To be wiihin ihu trustee Act .. 1,5 Traiisfur of, rule 24 ,«_ Registekki) Ownkr: Implied covenant to pay charges >] May bring ejectment .. ., .. , .. __ g Title of, made as perfect as possible subject to the right of lessor ^j Adverse possession as against ^,7 May mortgage ^^ iSVf MoRTf.AGE. Interpretation \ ^j, May apply to be registered j^ Not registered as, till title approved ,7 Estate of, with absolute title ,g With possessory title .. .. ,, ,, ,, ^^ __ .^ With qualified title .. . ai Land certificate given to ., As to leasehold land Af, a-. Prescribed number of . ._ Evidence for ..... . ^o • • • • • • • • • • • . . . 40 - Estate of, in leasehold land .,, With declaration of absolute title of lessor ^g Estate of, without declaration ,j With qualified title ,, Office lease given to ,, Of charge, may enter on land to obtain satisfaction of any monevs .... May foreclose _, Kemedy with power of sale .... >. May fansfer land .... -a •• •• •• •• .. ya May transfer charge gg Of transmission on death of 89,92 Fiduciary, nature of title of qo Evidence of transmission of ,._, Alone entitled to transfer registered land by registered disposi- tion, sec. 54 ,„o Registered Owner : Affected by notice of lease, when 102 Power of, to impose restrictions hq Registrar, or Registrars : Meaning of (M.) 228 To be under the direction of Registrar-General (M.) . . . . 232 471 INDKX. I,; KBUIHTRAH, ok l8 For taxes, sec. 33 . . . . % . . . . , ijij By »hl iit.-imp!*, rule 4j ,(jj^ Stamph: Stnti>)nery nnil charge!*, ruin 4) ^f^^ SuiiDiviNioNs : Sm Section 44, ».«. II (M.) ., j.f, SUMMON!) ; Regi»trar-(Jon| SwoKN Valuator : Interpretation, sec. 3 .. .. ,, ,, ,, ,^ ^^ -q Meaning of (M.).. , jjg Systkm : Of registration in British CclumbJa j* T Tasmania: Working of system .. .. ,, ,, ,, ,^ ^^ ^q Taxes; Not deemed incumbrances ., ,, ,. ,, ,, 60 63 Sale for, sec. 53 .. ., ,, ,, ,^ ^^ ^^ _g Certificate of payment of, rule 7 j^q Certificate, form No. 8 2qq 478 INDMX. 'I I I', MIC (■(•!•■ Tknant: Not ailviscd to ii'ly cti iioHfiosiint) Thi.k: A(lvHnlan<'s<'f l-'iii'i 'l"ill'''< All " Iii(lrf<';isil)l<\" al)H(>lMt(! tin;nniii« nf I'lvi Iciicc (if, K (iiiirrd .. 'I'd I)(! ap|>ii>v(!(i l>y Master as \n lease OfowtKir of ailji)iiiii)K land an l>> itx iiinliraiiee, s N.iliiii' iif K'HisteKNl (idiiciaiv owner Doiilitfid i|iie.sti' lis aiisiii); oi; l";stal)!isliment of advofHc, to land .. ("oiirt may order N.)liii! to lie iJlililislled liefon? 'ertidcite ^i.inled (M) On jiaymenl of fi'OH, ' • lit; oxamined (M ) When apiilicanl's, satisfactory, UcKistiai -( l5 . r^t 1,(1 1. 1 1 j(i(, . .£(.,, -!() '/') «1 KS .1" '77 2<)<) 210 210 zni) 210 21 t 2 2() 274 270 2(jS 2'J5 295 276 79 79 82 «3 iNi)i;x. •170 ThANSI'KHI'.K (i>lllillUf<{. V()liinl;iiy Of Icasi'holil land \Mtli lire I;ir,itiiiii .. Wilhciiii (l»'(larali(>ii . . With (|i ( laiatiori iif (|i .iIiIkiI tii|(. Vi)liinl.uy, of Icasohold land I'aitcrcd as ovvnor of cliar^'(! .. Adoclod with notice! ()(<(. iiditidii (londiiion may Im tnodilw'd .SV<' Null! )i I)cHcril)inK -■<■ ix-rson as. shall iim liidr thr IlIis. .tr. (M.) Siil)jc( t til inoil(;:i)^c, jriiplii'd mvciianl li\ (1\|,) Of rnoil^' IK,., s.il.j,;, I to all Il^;ht:. an.) lial.iliti,', .-f transfrrror TuANSIIvIJKOK : ( iw:icr of (liarKc idl liansfcrrc's natnr cnt.icd hf.ciil.iii,; ;, person as, :,liall irif hide the lii'ils, •■lr(M.) .. TkaNi.MI :,.SI()N : Of land and ( liarj;!", on ownrr's death Of freehold laiiil on dc at!i Of |cas(diold land or of i har^jc; ICvio. REST, Si:> 2,100,000. Dip-^croRS. Hc.s. WU-LIAM MiMAHTKU, I'letitlent. \\M. Kl.MoT. l^v.. l'i4t allowi'd on dupuHitK. BANKERS. Neic I'ork - Tho .\niui'iuau ExchanKf National Hank. l.miJun, Ewjlaiid - 'I'lio Hank of Scollund. UundaM, Moiitroal, St. Catl ariniMi 'I'liorolrt, Uuiivilhi, .Norw it'll, Karnia, Toronto, (ialt, ( nun^'uvillu. S(!ii forth, Walkorton, (iodoricli, Ottawa. Hiinf. D. IMcVicm:, ^Iinkuai. AdEsr, Winnh'Im. This COaSPAITT receives Doposits, issneu De^scutures, buys and sellB Mtiulcipal Debentures, and Lends Money ou the Socarity of Seal Estate. SAVINGS BANK DiUPARTMENT. Tills OOMFANT offers unexoeptlouable necnrlty to Dcpooltors. The Assets, oonslstintf almost wholly of Mortgat^es ou I&eal Estate, and of Municipal Seben- tiires, togrotber with the unpaid subaorlbei^ capital, niuoimt to nearly double the liabilities. The Depositors, moreover, with tho Debenture holders Uave a first claim on the Assets of the Company. S. H. jfANES & CO^ LAND & LOAN BROKERS, 6 TUIXQ STREET EAST, TOROHTO. TORONTO ANNEX will be the finest residence part of the City; near Queen's Park ; street cars run to tho property ; hif^h hiiul with siindy Hubsoil. No Toronto property was ever soUl so rapidly. Prices moderate. Terms easy. 8,000 feet yet for sule on JMoor, Huron, I\Iadisoii, Spadina and other Streets. Title is under " Land Titles Act, lisH.')." S. H. JANES & CO. HERBEET C. JONES, M.A., BARRISTER, 26 York Chambers, Toronto. Particular attention given to Land Titles, :;nd bringing land under the " Torrens System." AnviimsiMKNTS. LAW BOOKS IN OCriSRAL use Will be sent post-paid on receipt of Price. CONVEYANCING. O'SULLIVAN'fi MANUAL OV CONVKYANCING, WITH FORMH. 1882. Hoiuui ill lialf.culf, tM Toronto, C0F(ONERS. UOYD'B OFFICE AND DUTIKS OF COUOXKRS IN ONTARIO; WITH Forma. Toronto, 1h78. $2. PROMISSOF^Y NOTES, ETC. CLARKE'8 lULLH, N0TK8, CHEQUFS, .NND I. O. U'h. Toronto, 187r). 92. MAGISTRATES' MANUALS. STEVENS' ON INDICTABFiE OFFFNCMM AND KUM:\rARY CONVTCT- ion*, (iontiiniii;,' a ))lniii stalemtuit of tlio Ijiiw rchitiiij,' to tlio ri;,'ht of arri'sti'if^ oH'oiulorH iiiul partieH Hiispicted of conuniltint,' oITi'iiccm 'vliich aro indictaljlo, imiiI tho iirooocdini;:! uii.k'r tlio Statutes riilutinj,' to Hiich otTimccH, aa also tlio i)roceo, i'-i. CLARKE'S CRIMINAL LAW OF CANADA. 2nd Edition, 1882. SO. LEWIS' INDEX TO THE ONTARIO STATUTES, 1881. V2.-,0. CONSTABLES. JONES' COUNTY CONSTARLirs MANUAL OR HANDY BOOK. Toronto, 1HB2. Cloth, .OO ccutH ; leather, 7.") ccuts. DIVISION COUt^T MANUAL. O'BRIEN'S DIVISION COURT MANUAL, (Complete, ?5. Snpplcmcmt of 18H5 only. §1. This standnrd book, which has p'.'ovud ho valuable to DiviKJou Court Ofticera and FractitionerK, his just been brou.uht down to date liy tho publication of tlie various abort Aniondiiif,' Acts passed Hince tho edition of 1880, and the recent Tariff of I'ees and sonic new Rules of Court. MEMBERS OF PARLIAMENT. PARLIAMENTARY C.OVi:RNI\Ii:NT IN THE BRITISH COLONIES. By Alpheus Todd. 1880. Cloth, U ; half-calf, »(>. FOR THOSE WHO CAN ENJOT A JOKE. GRANT'S COLLECTION OF SCOTTISH ANECDOTES AND TALES. Edition of 1885. Paper, 25 cents ; cloth, 40 cents. SPLINTERS ; OR, A GRIST OP GIGGLES. Toronto, 1880. Cloth, $1..50. Address CARSWELL & Co., Law Publishers, 28 Adelaide Streot East, Toronto. if Price. MS. Toronto, aUO; WITH onto, I87r). $2. lY CONVTCT- 1) tlio ri;4ht of icoK •vhich are I Hiii'h otTonces, fiMicc'H ; !iH also rujiiary convic- If or sheop. H CRIMINAL I. $('.. OOK. Toronto, Inpplemcmt of il)l(j to Division 1 to date by the e the edition of rt. T. ILONIES. By AND TALES. Cloth, $1.50. .shers, It, Toronto. AnVF.flTtsrMKKTS. LAW STATIONER -AND- LAW LlTlIOGRAi'IiliR Ar.l. KINDS OF LAW FORMS ON HAND Ok Lithographed or Printed to Order Testimonials and Addresses Engrossed on Parchment or Vellum. 08 Adelaide Street East, (Opposiie the Court House) xo2eo2>Ta:o. All forms required under the "I.and TUIeM Aet, 1885," under the authoritj of the master of Titles, in stock. AnvrnTtsrvrsT^. MONEY. Ontario, Manitoba, and the North-Weat. LONDON AND (CANADIAN LOAN AND AGENCY COMPANY. (MMITJ;!).) Oapltal Subsoribad . . . • $4,000,000. Oapital Paid Up SOOfOOO. Raaarva Fund 280.000. Total Aaaata .... about ;4,000.000. Head Office, 44 King-st. west, Toronto Branch Office : Cor. Main & Lombard sis., Winnipeg. L03ALAFF&AISESS AT ALL IIIFOSTAITT F0I17TSI1T OITTABIO AND UAKITOBA. MONEY TO LOAN AT CURRENT RATES ON FARM, CITY, AND TOWN PI\OPERTY. .nUIVICIPAI^ ]»g:»K]%TtJKl]N PlIRCHANEn. TO INVESTOE^S The Company issues its own Debentures and Deposit Receipts AT LIBEBAL BATES OF JNTEBEST For one or more years as the INVESTORS MAY DESIRE- interest payable half-yearly. Correspondence Solicited. J. G. MACnONALD, Manafjcr, G. J. MAIILSON, Local ManaRPr. Toronto. WrNNiraa. h-Weat. DIAN t.ooo. KOOO. ).000. ».ooo. Toronto nnipeg. ND UAKITOBA. AUVKnriHKMINTi. >ERTY. lit Receipts lEST V DESIRE al ManaRcr, WrNNiFsa. BLAKE, LASH, CASSELS & HOLMAN. Over Uoiulniou llaiik, <.'or. King and Y«iige street* TOliONTO. I'.DWAKD BI.AKK, g.C. t. H. BLAKE, g.C. Z. A. LASH, g.C. WAI.TKK CASSKLS, g.C. C. J. llol.MAN. II. CASSSLS. R. S. CASSELS. A. MACKENZIE. H. W. MICKLB. W. II. BLAKE. ALEX. TRKLOAR A. 0. MBRSBR B. UARBER THOS. MOORE & CO. Law, Book and lob Printers Appeal Books and all description of Law Forms Printed on the Shortest Notice. 20 Adelaide Street East TELEPHONE No. 1448. TOROiNTO. Al>VKIITlHr.MKNTH. ill CANADA PERMANENT LOAN AND SAVINGS COMPANY i\cnnritn.\rt:u 4.u. is;:. •UBtOmiED OAPITAL, taiOOOiOOO. Piip.up (UriTAi,, l»a,*-'()(),(M»0. Ukkkiivh Vvsi>, »1,UM),0(HI, 'r„rAi, Xnntrm, »K,('.(M),(KM). UFE/CE- COMPANY'S BUILDINQS, TORON JO STREET. lORONlO- i;i)\v.Mii) iioni'nn, I'rt.iiUni swii i;i, NoiitniKiMr.n, vi,-f Vrt.Una. JOH. UOIUNHON, A. M. HMII'lt, MM DIVoN, WM. (I(i()l)i:iin AM, IIKNII V C VNVTII ll.\ mnnainj Director. J. HEROERT MASON. So'icltors, JONES BROS & MACKENZIE. IUf>k*ri in Canmt'i Tim Hunk of 'r.iiiiiiin, Tlu' MinliiiiiiN lliiiilt. Tlio Hunk <>( Couiiiuiri'*. 'I'liii l''i'ili>i'itl Miiiik, Till' Htiiiiiliircl Hunk. Iliiu\fr4 hi iil llHIiun Tim Cltv Hiiiik i Miiilti'ili, l,iiiiiiii(l,;l liiilf un'rhl' niOHKNTlUKH IHHIIKI) In Ciirnmey or Hti iliii.;, with Iiitt-rnst ('oujion-i iittmtioil. iiiiyiililn ill Ciiiiiiila (ir ill l':iu;iniiil, I'lxuiiUtorH iiiiil TniHtcim itro iiiitliiiri/<)il iiy law to liivimt In tliii lliiliiiiitiircH of tlilH <'olii|miiy. Money advauotd on the acourlty of B«al Batata on moat ntvourabla terms. Mi>ur*.A(ii; i AND MI;N|( ll'AI, liKlll.s I I KIS I'I;ki (l.v^.l.l^ THE CENTRAL BANK OF CANADA. i;.\IMTAl. AUT1!()I