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This item is filmed at the reduction ratio checked below/ Ce document est film* au taux de reduction indiqu6 ci-dessous. 10X 14X 18X 22X 7 12X 16X 20X 26X 30X 24X 28X 32X The copy filmed here hea been reproduced thenks to the generosity of: Law Library Quaan't Univarsity L'exemplelre film* fut reproduit grice A le g4n6rositA de: Law Library Quoan's Univarsity The imeges appearing here are the best quaKty possible considering the condition and legibility of the original copy and in keeping with the filming contract specifications. Original copies in printed paper covers are filmed beginning with the ^ront cover and ending on the last page with a printed or illustrated impres- sion, or the back cover when appropriate. All other original copies are filmed beginning on the first page with a printed or illjstrated impres sion, and ending on the ' V. West Achtiialia VI. Tasmania VII. New Zealand.. VIII. Dominion ok Canada (Territories) IX. PuoviNCK OK Ontario X. Pkovinck ok Manitoiia . . XI. Province ok British Colcmiua . . XII. Great Britain XIII. United States Intuodcction Cases on the Torrkns Systkm of Land Titlks. . DioBBT ok Cases Rkpoutkd in this Volujie .. Inokx to Diokst CAOK. V vii XV XXV XXV XX vi xxvii xxviii xxviii xxviii xxix XXX XXX xxxi xxxii xxxiii xxxix xli 1 sr.'i 61ft 51 I J r w ■ A. A. A. L. K.- V.I V. I VV. , W., lit t: • ABBREVIATIONS, A. C. or A,. C. or App C... , Appeal C.'ase. in Kn«U,h Uw Uoports. A. J. 11. -Australian Jurist Reports. A. L. T. -AuHtraliftn Law Keports. L. U — Knglish Law HeportH. K.— The Ueportx. V. L. 11. -Victorian Law Heporta. V. U.— Victorian Keporta. VV. & W.^Wyatt and Wcbb'a Reports (Victoria). W.. W. * a'B.-Wyatt, Webb and a-Backotts Heporta (Victoria). Pi COUKIGENDA. Page 118. — In 14th hue, for reforeiice to foot note '2*2 rea<1 'i'A. 141. — Correct reference! to foot notoH HO an to read an followH:— " OoiMard on EanementH (2nd edition), 214, PHurook v. I'enBon* . . . In re Whyte* . . . Davin v. (Jfiurn,' and Espley v. Wilkes.* " 143.— In foot note 18, road " <( Jur. 144." i»7.— In head note, to " 2 V. R. (M) 27 " add : " 2 A. .1. It. l;j;j." !»«.— In IBth line, for " Hft«Kart " read " Hoxniirt." 218.— Htaunton v. Brown.— This case ia cited aH " Staii^iiton v. Brown." 281.— In ISth and 14th lines read "Warner v. Jacob (20 Ch. 1). 220.) . . . Boss V. Victorian Permanoiit HuiUlin^ Society." Also in 35th line read " Parkiiinon v. Ilan- biiry (L. U. 2 H.L. 10)." 240. -In .H«th line, for " Foster " read " Forster." 242.— In 3rd foot note read " 9 Jur. N. 8. »58." 255. -In 28rd line read •' Beavan v. Chadwick." 371. — In 14th line read " Nepean v. Doe i*.. Kni(;ht." 373.— In head note read "13 V. L. B. 484." 416.— In head note read, "I. E. & M." ^ THOLE OF THE CkSES REPOIITED III THIS VDLOME, A, Ainli rsoii. Ui'iitli v., 4 A. K l.-| AikIm'ws, Kx piiit«', In n* Atiiiitnp', IT \'. L. H. 17 12 A. I.. T. nu Aiinimd, In iv, 17 V. L. it. 10M: 12 V. L. T. 207 .\iiiiitnn«*, III If, Kx iMiH«' Amli ,vs, 17 V. L. U. 17; 12 A. L. T. 104 :m AtloiiH y<}«MM'iiil V. II«»>.'pm, :? V. L. H. [K.] Ill ... . i:U AttoriK'yUeufrjil v. (JoMslMirmij;!! i-t ;;l l.'i \'. h. K. »1:{S 402 AiiHtral <)ti» To. (Ltd.) v. Andrew K«mt & To., 12 A. L. T. lOS .•»)n .\nKtraliiiu I)«*iKMit and Moi-tpitfe Il.ink v. Loid, 2 V. L. K. (L.) :n :5sft .\yhvin, Kx parti*, In r«* Suiimi«*rs, 4 V. L. U. (L.) 110 40:i H. Hall, Louch v., .") V. L. K. (L.) l.")7; 1 A. L. T. KK . . . 42J> Hauk of V. tovia, Th<^, v. McMirlia.'I, S V. L. R. ^L.) 11 400 Heath v. Andei-Kon, 4 A. L. T. l.'»l 528 Heissid, Ex parte, 5 V. L. R. (L.) 'tli .TC. H«*nn and (Irioe, In re, 12 V. L. R. 'MWr, s A. L. T. s. 2S2 Hethune v. Porteous, 14 A . L. T. 205 :u>:\ Hipgs et al., McEllister v., L. R. « A. C. 'M4 29 Moud, Ex parte, V. L. R. (L.) iaH; 2 A. L. T. 94. . . 2.")7 Mowman, Ex [wirte. 7 V. L. R. (L.) 314 .38.1 VIU TMiLi: Of CASK'S UHnUtTfh. lliHfii. The ( ^oimiuMchil Hnuk v., ir» V. L. H. 572; 11 A. L. T. JH' 407 Micw V. Jonca. 2 V. R. (E.) LM>: 2 A. J. K. r. 37(i llnmj^hton, Sollinjr <'t a), v.. L. K. A. <\ [1S!):{] 55(1; 12 N. S. W. L. R. \H\) : S N. S. W. W. N. 45 72 lliown, Davidson v., 5 V. L. R. (L.) 2.H5 424 llrowii. Staunton (or Staufihton) v.. 1 V. L. R. (L.) 150 2i:{ Ri'own, Ex parte, 5 V. L. R. (L.) 5 381 Blown, Wilkinson v., 1 V. R. (L.) Hii: 1 A. J. R. 88. . il\'.i Brunswick, The Mayor, etc., of, v. Dawson, 5 V. L. R. [E.] 2 179 O. Cadinan, Ricluirds v., 17 V. L. R. 20:?; 12 A. L. T. VM 471 Campbell, Crow v., 10 V. L R. [E.] 180; f> A. L. T. M 87 Campbell v. Jarrett. 7 V. L. R. (E.) 137; 3 A. L. T. 40 ... 313 Chomley v. Firehrace, 5 V. L. R. [E.] 37 J>s Clark, Ex parte, 17 V. L. R. 82; 12 A. L. T. 1(;3 118 (V»lechin v. Wade, 3 V. L. R (E.) 2fiG 278 (^>lonial Bank of Australasia, The, v. Rjibbage, G V. L. R. (L.) 4(12 418 Colonial Bank of Australasia, The. v. IMe. V. L. R. [E.] 180; 1 A. L. T. lo« 122 Colonial Bank v. Roach, 1 V. R. (L.) ir.5: 1 A. J. R. 13(5 374 Commercial Bank, The, v. Breen, 15 V. L. R. 572; 11 A. L. T. 92 407 Commissioner of Titles, The, Manning; v., L. R. 15 A. C. 195 21 Cowell V. Stacey,* 13 V. L. R. 80 355 Crow V. Campbell, 10 V. L. R. [E.] 186; G A. L. T. 34 87 Cullen V. Thompson, 5 V. L. R. (E.) 147; 1 A. L. T. 15 322 Cunninfrham, Ex parte. In re McCarthy, 3 V. L. R. (L.) 199 138 Cnnninfrham v. Gundry, 2 V. L. R. (E.) 197 IGl TAHLti OF CASKS HKPailTED w D. I'AIIM Djividson v. lliown, 5 V. L. H. (L.) liSo 421 Davu's siiul Iniimn, Ex part**, 11 V. L. K. 7S0; 7 A. L. T. \)\) 27:i I ijiris V. 1 miigall, ir. V. L. R. 424 rm Davis «>t al. v. Wrkey «'t Jil., :{ V. K. (P:.) 1: :? A. J. H. 1 :*'")() Dawson, Tlu* Ma.vor, etc., of nninswick v.. ." \. L, K. [E.] 2 17!) Douald, Ma^or v., V.\ V. L. R. 253; S A. L. T. l.H) 2«;<; l)ou«;all, Davis v., IT. V. L. R. 424 J)(>7 E. Ellison, Ex parte. Ex parte Amess, 5 V. L. R. .'0. . 502 F. Fainswortli, The Sliamrock ('o. (Rejjistered) v., 2 V. L. R. [E.] 1(53 17(5 Fin-brace, Chomle.v v., 5 V. L. R. [E.] 57 98 Frame, McCluske.y v., IH V. L. R. 0:{ 440 G. f'ribbs v. Messer et a!., L. R. A. {\ [ISOl] 24S: i:{ V. L. R. .S54; 1) A. L. T. 10(i I (Jiles V. Lesser, 5 V. L. R. (E.) ;JS 321* iJisHinjr, Sandhurst Mnt. Perm. Inv. Rldj;. Woe. v., 15 V. L. R. 321); 11 A. L. T. (J7 4(5ri (Jleeson, Monajfhan v., 13 V. L. R. 384; 8 A. L. T. 1!)7 153 (loldsboron^rh et al., Attorney-Cieneral v., 15 V. L. R. (;3S 402 Coldsworthy, Ex parte, 8 A. L. T. 181 510 G; 8 A. L. T. 8 282 I 1 TADLU OF VASES REPORTED. Gundry, Cunningham v., 2 V. L. R. (E.) 197 (Jiuin V. Harvey, 1 V. L. R. (E.) Ill Gunn V. Land Mortgage Bank of Victoria (Ld.) et al., 12 A. L. T. 49 Gunn, Ex parte, 3 V. L. R. ^L.) 'M\ H. Hammill, Wiggins v., 4 V. L. R. (L.) GIJ Haivey, Gumi v., IV. L. R. (E.) Ill Hervey v. Inglis, 5 W. W. & a'B. (E.) 125 Hodgson V. Hunter, 3 V. R. (E.) fil; 3 A. J. R. 13. Hoggan, Attoraey-Genol-al v., 3 V. L. R. [E.] Ill, Hood's estate. In re, 4 W. W. & a'B. (I. E. & M.) 20 Hunter, Hodgson v., 3 V. R. (E.) Gl; 3 A. J. R. 13 I., J. Tnglis, Hervey v., 5 W. W. & a'B. (E.) 125 Inman, Davies and, Ex parte, 11 V. L. R. 780; 7 A. L. T. 99 James v. Steven«on et al., L. R. A. C. [1893] 162; 15 V. L. R. r»15 Jarrett, Campbell v., 7 V. L. R. (E.) 137; 3 A. L. T. 49 Johnson, Ex i)arte, In re Whyte, 5 W. W. & a'B. (L.) 55 Jones, Brew v., 2 V. R. (E.) 20; 2 A. J. R. G Jones V. Park, 5 V. L. R. (L.) 1<>7; 1 A. L. T. 10 . . Keith, Robertson v., 1 V. R. (E.) 11; 1 A. J. R. 14. . . . Kelly, Talbot and, In re, 13 A. L. T. 270 Kerr, Andrew & Co., Austral Otis Co. (Ltd.) v., 12 A. L. T. 108 Kickham v. The Queen, 4 A. L. T. 37 L. Land Mortgage Bank of Victoria (Ltd.), Gunn v., 12 A. L. T. 49 IGl 294 229 425 :!G3 L'94 339 203 134 410 203 339 273 13 313 :{43 376 421 366 520 396 530 229 I 229 425 :',G3 1:1)4 203 UU ) 410 », 203 1 TABLE OF CASES REPORTED. xi , 1 PAUII Land Mortgage Bank of Victona (Ltd.), The, Tavior v., 12 V. L. R. 748; 8 A. L. T. 39 108 lifSSiT, Giles v., 5 V. L. K. (E.) 38 32!) Lord, AuBtralian Deposit and Mortgage Bank v., 2 V. L. R. (L.) 31 3SS Loiich V. Ball, 5 V. L. R. (L.) 157 ; 1 A. L. T. U) i2S) Mc. McCarthy, In re, Ex parte Cuuiiingliam, 3 V. L. R. (L.) 199 138 McOluskey v. P'rauie, 13 V. L. R. 93 440 MtlMnald v. Rowe, 3 V. R. (E.) 143 23s McElli»ter v. Biggs et al., L. R. 8 A. (\ 314 29 M(Int<)8li, Wilson v., R. 429 78 .McMichael, Bank of Victoria v., 8 V. L. R. (L.) 11 . . . 400 M. Magor V. Donald, 13 V. L. R. 255; 8 A. L. T. 150. . . . 20«; Manning v. The Connuissioner of Titles, L. R. 15 A. C. 195 21 Mathieson v. Mercantile Finance and Agency Co. (Ltd.) 17 V. L. R. 271; 11 A. L. T. 154; 12 A.' L. T. 220 47S Matt V. Peel. 2 V. R. (M.) 27; 2 A. J. R. rA'\ 197 .Mercantile, Finance and Agency Co., Mathieson v., V. L. R. 271 478 Messer et al., Gibbt v., L. R. A. r. [1891] 248; 13 V. L. R. S54; 9 A. L. T. 10«J I Miller v. Moresey, 2 V. R. (L.) 39 430 Miller v. Moresey, 2 V. R. (L.) 193; 2 A. J. R. 115. . . . 4.3*^ Monaghan v. Gleeson, 13 V. L. R. 384; S A. L. T. 197 153 ^Moresey, Miller v., 2 V. R. (L.) 39 4:*.f, : Moi«esey, Miller v., 2 V. R. (L.) 193; 2 A. J. R. 115 4:;8 [Morrow, National Bank of Austral' a v., 13 V. L. R. 2; 8 A. L. T. 145 300 [Munro & Baillieu v. Adams, 17 V. L. R. 703 449 N. [Kational Bank of Australia v. Morrow, 13 V. L. R. 2; 8 A. L. T. 145 300 xii TMshi: o/' *i.s7v.s' iii:i'oi{Ti:ii. I'AliK National liaiik of Austialia v. Tlif I'niicd IIaii•( \>m\A\, Kf, (; A. L. T. sr> 52:5 o^'U' V. aby, Ex parte, 9 V. L. R. (L.) 417 45!i I Roacli, Colonial Bank v., 1 V. R. (L.) 105; 1 A. J. R. 130 374 Robertson v. Keith, 1 V. R. (E.) 11; 1 A. J. R. 14. . . . 3(;(i pAoa nr, 52H 28.1 • r>4r, 421 h) i}X • • 51) A. ^ 37:5 • • • 520 • • VM U. • • 122 4ur) • • 55o L.. aoi 'y.w 41S 140 10; L28 471 . . 4r)!> . ?.(■>(> /i/'/j; ut' riN/.'.v i{i:i'(tuTi:it xiii I'AUB I^)8S, Kx part.', 2 V. U. (L.) H>; 2 A. .1. H. lt» 2.-)4 Row.', M.D.niiild v., :{ V. R. (K.) U.l 2:JS Royal Pci-nian.'nt liuil.liny; So.iet.v, Tlio, Watson v., 14 V. L. R. 2S:t 1S5 Sandhurst Mutual INmui. Inv. lil.l;;. Soc. v. (lissin;;, 15 V. L. R. :{21>: 1 1 A. L. T. r,7 W\ Salt.T, In I-.', 2 V. R. (L.) \VA; 2 A. J. R. 7:{ 24:1 Slianiro.k To. iR.'jiist.Mc.l). Tli.'. v. Fainsw.Htli, 2 V. L. R. {E.) Km 17»i Sla.k. In IV, Es pait.- Winder, 1 V. L. R. (I..):U!>;5 A. J. R. s:t 2+S Smith, lu IV, 15 A. L. T. S5 558 S.)llin« «*t al. V. HrotiKht.ui. L. R. A. ('. []H\V.i] 55r.; 12 N. S. W. L. R. IS!); S N. S. W. W. N. 45. . . . 72 Stacey, Cowell v., i:t V. L. R. 80 .{55 Staunton (or StaujfUton) v. Rrown, 1 V. L. R. (L.) 1.5() 2i:i Stev.Miaon .'t al., James v., L. R. A. C. [18{):i] 102; 15 V. L. R. 015 13 Summers, In re, Ex parte Aylwin, 4 V. L. R. (L.) 11(5 40.3 T. Talbot and Kelly, In n\ 13 A. L. T. 270 .520 Taylor v. The Laud MortKajj;e Bank of Vi.toria (Ltd.), 12 V. L. R. 748; 8 A. L. T. 39 108 Taylor v. Wolfe & Co., 18 V. L. R. 727; 14 A. L. T. 107 404 Thompson, rullen v., 5 V. L. R. (E.) 147; 1 A. L. T. 15 322 IT., V. Tnited Hand-in-Hand and Rand of Hoim^ Co., The, et al., National Rank of Australia v., L, R. 4 A. C. 301; 2 V. L. R. [E.] 206; 3 V. L. R. [E.] 01 ; 4 V. L. R. [E.] 173 .33 Vincent, Ex parte, 12 V. L. R. 560; 8 A. L. T. 5 47f) XIV TAHhK OF CAHES HE POUT En. W. PAON Wade, Oolechin v., :t V. L. R. (E.) 2»;«; 278 Wall, In re, Ex iwute Peau'won, 13 V. L. K. 4S4; !) A. L. T. 43 373 Watson V. The Royal rermanent Huildiu;; Society, 14 V. L. R. 2si isr. Wekey et al.. Davis et ul. v., 3 V. K. (E.) 1; 3 A. J. R. 1 330 Whyte, In re. Ex imrte Johnson, 5 W. W. & a'H. (L.) oo 343 Wijjgin» V. Hanmiill, 4 V. L. R. (L.) ♦)3 303 Wilkinson v. Brown, 1 V. R. iL.) .s«; 1 A. J. R. 88. . .. 433 Williamson. In re., 2 W. W. & a'B. (L.) 110 447 Wilson V. Mcintosh, G R. 429 78 Winder. Ex parte, In re Slack. 1 V. L. R. (L.) 319; 5 A. J. R. 83 248 Wise, In re, 2 V. R. (L.) Ill ; 2 A. J. R. 09 434 Wolfe & Co., Taylor v.. 18 v. l. R. 727: 14 A. L. T. 109 404 Woods, In re, W. W. & u'B. (L.) 233 444 I>A0V 278 373 TABLE OF CASES CITED IN THIS VOLUME. i8r» 330 . 343 . 3(53 .. 433 . 447 7S 5 . . 24ft . . 434 A. PAliK Ackroyd ▼. Smith, IOC. B. 184 3J7 Aladin G. M. Co. v. Aladdin ax^d Try- Again United O. H. Co., G W. W. A-a'B. (E.)266 178, 11)9 Alderson v. Maddison, 7 Q. B. D. 174 93 Alma Consols Co. v. Alma Extended Co., 4 A. J. R. 144 177 Amos V. Smith, 1 H. dr C. 238 114 Anson v. Hodges, 5 Sim. 227 513 Asher v. Whitlock, L. R. 1 Q. B. 1 73 Atterbury v. Wallis, 8 D. M. A- G. 454 101, 106 Attorney-General v. Batcher, 4 Buss. 180 40 ▼. Corporation of London, 8 Beav. 270 137 V. Galway, 1 Molloy, 93 1.37 V. Shire of Echuca, 4 V. L. R. (E.) 4 184 to the Pr. of Wales v. St. Aubyn, Wightw. 167.. 1.35, 1:6 Austin V. Llewellyn, 9 Ex. 276 226 B. Balls V. Margrave, 3 Beav. 284 299 Banks v. Crossland, L. R. 10 Q. B. 97 194 Barclay v. Messenger, 43 L. J. Ch. 449 514 Beavan v. Chadwick, 3 W. W. A a'B. (L.) 127 253 Bentley v. Bates, 4 Y, & C. 182 535 Birkmyrv. Darnell, 1 Sm. L. C. 349 189, 194 Blyth V. Parlon, 2 V. R. (Eq.) Ill 143 Bodger v. Arch, 10 Ex. 333 114 Bond, Ex parte, 6 V. L. R. (L.) 462 209, 310 Boarsol v. Savage, L. R. 2 Eq. 134 101, 106, 113, 533 Boyd V. Shorrock, L. R. 5 £q. 72 398 Braham v. Sawyer. I Dowl. A- L. 466 250 Brew V. Jones, 2 V. R. (E.) 11 300, 5.35 Bridges v. Longman, 24 Beav. 27 497 Briggs V. Jones, L. R. 10 Eq. 92 245 Brown, Ex parte, 5 V. L. R. (L.) 6 553 xvi TAULH or r.\st:s i'lTED. I'AdK BrJUin v. Uossiter, 11 Q. ». D. VIA 1!»4 Brown v. Baniforcl, '.» M. A W. 4'i 4Hft, .W? Huckle V. .Mitchell, 18 Ves. 100 27'J Bullock V. Jcnkini, 1 L. M. x P. «ir»l 2.V2 V. SadUir, Amb. 7(i» S-J.'S Burdett V. Lewis, 7 C. B. (N.H.) 7!tl 241> Bur>;eB9 V. Wheate, 1 W. Bl. 131 , .. VAl 0. Cadokjau v. Keiinett, 2 Cowp. WW I'iK Calvert v. Tate. Argna, H Xu^ 101, Kjti, 4(17 Campbell v. Commercial Bank of Sydney .Ol Carrin^ton v. Roots, "2 M. cS: W. •-'48 l«'.t. 11(4 Chaffers v. Glover, 5 Dowl. 81 2r,l Chapell V. Purday, 2 Ph. 227 40 Chawner, Re, 38 L. J. Ch. 72(5 245 Chisholm v. Capper, Vic. No. (3aa. HO ;J(»4 Chomley v. Firebrace, 5 V. L. R. (E.) 57 02, «(J, 322, :i2S, 533 Christie v. Unwin, U A. & E. 373 43.') Churchward v. Ford, 2 H. & V. 4-4t5 431 Clarke v. Royal Panopticon, 4 Dr. 2tJ 245 Climiu V. Wood, L. R. 3 Ex. 257 307 Coats V. Chaplin, 3 Q. B. 4«3 194 Cohen v. Mitchell. 25 Q. B. D. 2(52 54(5 Colechin v. Wade, 3 V. L. R. (E.) 2fj(j 533 Collinson v. Lyster, 20 Beav. 355 , 120 Colonial Bank V. Rabbage, 5 V. L. R. (L.) 4(52 409, 467 Colonial Bank v. Roache, 1 V. R. (L.) 1(55 324, 40», 419, 467 Conquest's Case, L. R. 1 Ch. D. 334 162 Cook V. Dawson, 29 Beav. 123 24*5 Coombs V. Bristol & Exeter Ry. Co., 3 H. & N. 610 194 Oopis V. Middleton, 2 Madd. 423 128 Corser V, Cartwrifiht, 7 E. & T. App 538 Cotterell v. Stratton, L. R. 8 Ch. 205 30 Crenver Mining Co. (Limited) v. Willyams, 35 Beav. 353 38, 43 Cripps V. Blank, 91 Dowl. & Ry. 480 431 CroBsley & Sons (Ltd.) v. Lightowler, L. R. 8 Eq. 270, 2 Ch. 478. . 14, 19 Crow V. Campbell, 10 V. L. R. (E.) 186 533 Cullen V. Thompson, 5 V. L. R. (E.) 147 4. 127, 333, 398 CuUey V. Jaylerson, 11 A. & E. 1015 218 Candy v. Lindsay, 3 App. Cas. 459 112 Cunningham, Ex parte, 3 V. L. R. (L.) 199 33(5,382, 405 Cunningham v. Gundry, 2 V. L. R. (E.) 197 467 Curzon v. Edmunds, 6 M. & W. 295 554 TABLE OF C'A8E8 CITED. XVII D. I'AOK Dakintf v. Whimper. 20 Beav. fl68 'J7» DftDiclH V. Davison. 1« Vea '21'J .S24 Darvili v. Teriy, 3i) L. J. Ex. 3S.') l'J(* Davieri and Innian, Ex parte. 11 V, L. R. 780 170 Divvies V. Davies, 9 Ves. 4«1 I'il) DiiviB V. The Queen, 6 \V. W.W a'B. (E.) 123 140 V. Wekey, 3 V. R. (E.) 1 'AAA Dixon V. Oayfere. 17 Beav. 4.HI 7.1 Doe V. Barnard, I'A Q. B. i)4.-| 7:'.. 3(i2 V. Burt. 1 T. R. 701 1(J2 V. Carter, 9 Q. B. 863 371 V. Carter, 8 T. R. 57 504 V. Clarke, 8 B. A C. 720 222 V. Cooke, 7 Bing. 348 22« V. Day. 2Q. B. 147 410 V. KobertH, 13 M. & W. 520 21(5 V. Watts, 2 Esp. 501 374 V. Williams, 5 A. A- E. 291 223 v. Wood, 14 M. & W. 682 409 Droop V. Colonial Bank, V. L. R. (E.) 289 533 Dreverman v. Doherty, 1 V. R. (E.) 4 235 Dublin V. Judge, 11 T. L. R. 8 555 Dunstan v. Patterson, 2 Ph. 341 39 Dyce V. Hay, 1 Macq. H. L. 312 345 E. Edelman v. Heyneman, Argns, Nov. 26, 1859 865 Edwards V. Martin, 25 L. J. Ch. 284 341 Elkin V. Janson, 13 M. A W, 662 226 Elliot, In re, 8 A. L. T. (N. S. W.) 59 310 Ellison, Ex parte, 5 V. L. R. 59 260 Espley V. Wilkes, L. R. 7 Ex. 303 141 Ettershank v. Leal, 8 V. L. R. (E.) 333 467 Evans v. Elliot, 9 A. & E. 342 431 F. Fahey V. Ivey, 6 A. L. T. 26 80 Fairlie v. Hastings, 10 Ves. 123 102 Felthouse v. Bindley, 31 L. J. C. P. 204 194 Fewster v. Turner, 11 L. J. (Ch.) 161 142 Finch V. Brown, 3 Beav. 70 39 Finlay, Ex parte, 10 V. L. R, (E.) 68 90 Foster V. Great Wesfc^^n Ry. Co., 8 Q. B. D. 25 86 Forster V. Hoggart, 15 Q. B. 155 199, 240, 490 Fotheringham v. Archer, 5 W. W. & a'B. 95 4 b fk ^^l r XVIM tmuj: of r.iSHs riiKi), O. »'.\iiie (i(ibbon« V. UibbonK, il App. Cat. 471 tH.'i Gibbi V. MoiMr, (18JH) \. C. '2M r,i'i (lileH V. Hemming, (I Dowl. 8'.»5 j/Sl (Have V. Hardiiin, 27 L. J. Ex. '-»»2 140 Good V. Job, 2K L. .1. N. H. g. B. 1 :,«4 Gorilon v. Homfall, .'> Moo. P. C. H0:< :h, 4M Grei« V. Wation, 7 V. L. B. 10:^ HaHHtttt V. (Joloiiial Bank of Australia, 7 V. L. K. (L ) .SSl i Hercules Ins. Co., In ro, Pu»{b & Shannon's Case, L. U. 18 E(]. Mi\. . I Hickson v. Lombard, L. R. 1 H. L. 824 Hr>7 Hole V. Burton, 10 Q. B. D. 807 rj',4 Holbird v. Anderson, r» T. R. 235 128 Holland V. Hodgson, L. R. 7 C. P. .8v!8 -. 8!)8 Holmes v. Kerrison, 2 Taunt. 323 210 I. Imperial Mercantile Credit Association, In re, L. R. 11) Kij. 584 .... 4 Incorporated Society v. Kiohards, 1 Dr. & W. 25H 40, 40, 5.', 51 Inman v. Wearing, 3 D. G. & 8. 729 8s, 48 J. Jacomb, Ex parte, W. W. & a'B. L. 48 506 Jacomb v. Goldsmith, Sup. Ct. Vic, July 8, ISdl 255 James v. Salter, 3 Bing. U. C. 544 219 Jenkins V. Jones, 9 Q. B. D. 128 73 Jenkins v. Jones, 2 Giff. 99 342 TAni.F: OF i'\hf:k rirEO. XIX f.MIK r>vi . '-51 mi I i ;vj 514 554 , nnr . 554 . 128 . :v.t8 . 2lt> 4 51 43 I'AUR .lohnnon. Kx |)orte. In re Whyt*. rt W. W. .V nU. (L.) M 141 .lohiKon V. Fe«enmover. ili Beav. HH, 8 De O. .t .). lU .H8, 4» Jollond V. HUlnbrldKc a Ve«. 47H I'ilt Jon«l7 Mft.l.li* .n V. McCarthy, 'i W. W A »'». (K.) ir.l Ml, 'Jho, 'MM MukMiire V. O'Reilly. 8 J. .V. L. 'ii4 , :<00 Mnjur V. Ward. HMr«. f>\)H H\ Maniicll V. MaiiNull, 'i Pr. Wins. ((7H lol MarHhall v. Hluiittn, 7 Hare, 428 .H77 Martin v. ruwniiit(, li. H. 4 Cli. 'AM .. »(M) Martinez, v. Cooper, 'i Rum. liH SO, 40, 4:< Martinaon v. Clowen, 'io Cli. I) M.',7 tW Matt V. Peel. 2 V. L. R. (M.) •2.'5 .'OS Ma»»ey V. Kiadun, L. R. 4 Ex. 18 4i)tt Mayor, etc., of Htaple v. Oovernor, etc., of Dank of KnKlnnd, 'i\ g. B. D. IflO 4t(7 Meftter v. Oibbi, 18 V. L. R. 8fi4 U31 Mettera v. Brown, 9 Jur. N.8.958 '112 Middleton V. Melton, 10 B. d; C. 817 W'i Millar V. Wildiih, 2 W. A W. (E.) 87 177 Miller v. Moretey, 2 V. R. (L.) 108 270, 30t Mills Estate, Re, Ex parte CommiMioner of Works and Public BuiUl- in(;i. 34 Ch. D. 24 «« Montgomery v. Calland, 14 .Sim. 70 41, 40 Moore v. Shelley, 8 App. Cat. 25S 410 Morewood v. The South Yorkshire Ry. Co., 28 L. J. Ex. 114 128 Morrisay v. Clements. 11 V. L. R. 18 487 Morton v. Copeland, 16 C. B. 817 227 Mo89 V. Oallimort » R. L. C. 560 431 Moas V. Williamaon, 3 V. L, R. (E.) 221 279 Moxhay v. Inderv. ick, 1 De G. A S. 708 183 Mulcahy v. Walhalla Co., 2 A. J. R. 08 100, 300 Munro V. Sutherland, 5 A. J. R. 130 167, 178, 467 Murphy v. Miokel, 4 W. W. A a'B. (L.) 17 218 Murphy v. Mitchell, 8 V. L. R. (E.) 194 442 Myers v. Defries, 5 Ex. D. 16, 180 441 N. National Bank V. Morrow, 13 V. L. R. 1 442 United Hand-in-Hand, 4 App. Cas. 891 490 Naoulshaw v. Browning, 21 L. J. N. S. Ch. 901 39" Nelson V. Booth, 3 De G. A 8. 119 39, f)3 Nene Valley Drainage Commissioners v. Dunkley, L. B. 4 Ch. D. 1. . 142 Nepeau V. Doe, 2 M. A W. 911 218, 871 Norton v. Cooper, 5 D. M. A O. 728 39 TABLF OF r.i/iEN CITED. XXI I'AilM . Ill . r,i7 0. :m17 .. a<)0 . ill .. lot .. 877 .. 800 10, 48 .. 'i»l .. Mi .. 409 'i\ , .. 467 ... 'iSl . .. 2*2 ... Mi ... 177 170, 301 ild- ... 80 .41, 40 410 l'J8 487 , 337 , 431 . 279 . 183 199. 300 78, 4n7 . '218 . 44-2 . 441 a rAni OkIiiUu V. UiblM. H V. L. R. (L.) SHO 4 OgI« r. Aedy. 18 V. L. K. 407 4 P»d R. V. Arundel, Hob. 10!> l.»7 V. Collett, R. A- R. 408 :i74 V. Exeter. L. R. 4 Q. B. 311 11-' V. Harwich, 8 A. A E. 91!t 4-:» V. Hughes, L. R. 1 P. C. 81 I'.i!* V. Mayor of Collingwood, 2 V. L. R. (L.) 4(1 ll'.> V. McNauKhton, 10 CI. A F. 210 .>i3 V. Oxley, 3 Car. & Kir. 317 1 IH V. Stevens, 5 B. & C. 24f) IIH V. Turner, 5 M. A- S. 211 220 Registrar of Titles v. Paterson, 2 App. Cas. 110. . . .41, 12;*, 2r)0, 2tH, 308, 3:;i, 4fi2 Rhodes v. Buckland, 10 Beav. 212 342 Hhodes v. Innes, 7 Bing. 329 2r)l Ri«ht V. Beard, 13 East, 210 374 Robertson v. Keith, 1 V. R. (E.) 11.. 114, 128, U>}, 160, 298, 300, 322, 377, 419, 467, 584 V. Lockie, 15 L. J. Ch. 37!) 231 Ross V. Victorian Permanent Building Society, 8 V. L. R. (E.) 254. . 231, 238, 562 8. Sander V. Twigg, 13 V. L. R. 765 188, 196, 475 Sanders v. Sanders, 19 Ch. D. 373 553 Scott V. Nixor, 3 Dr. & War. 388 362 Scott V. Shire of Eltham, 2 V.L. R. (L.) 154 14 Scovell V. Boxall, 1 Y. & J. 896 189 Shaw V. Scott, 3 A. J. R. 16 .561 Sheldon v. Cox, 2 Eden. 224 106 Shortridge v. Young, 12 M. & W. 5 435 Slack V. Atkinson, Sup. Ct. Vic, June 24th, 1878 126 Sloper V. Saunders, 29 L. J. Ex.275 431 Small V. Glen, 6 V. L. R. (L.) 98 14 Snieeton v. Collier, 1 Ex. 457, 5 D. A L. 184 427 Smith V. Harrison, 41 L. J. (P. C.) 34 41 V. Lloyd, 9 Ex. 562 217, 225 V. Low, 1 Atk. 490 324 V. Scottish and Cornish Co., 2 W. W. A a'B. (L.) 121 206 Solomon v. Jarvis, 12 V. L. R. 878 .554 Soward v. Leggatt, 7 C. A- P. 6 199 Spurgeon v. Collier, 1 Ed. 55 101 Staunton v. Brown, 1 V. L. R. (L.) 150 324 Stackhouse v. Countess of Jersey, 1 J. A H. 721 101 Stone V. Thomas, L. R. 5 Ch. 219 300 TAfiLt: OF ('Asi:ii nriin. XXIIl I'AdR . . 1K» .. i:»7 .. ;m .. \Vi . . . 4:» , . . \wt . . Ill) . . . o.ia . .. UH . .. UH . .. 220 !(W, i:5l. 40)2 ... 342 ... '2->l ... 374 i22, 467, oa* , .. 231 14.. 238, 562 302 14 189 5G1 106 435 12() 431 14 427 41 17, 225 324 200 554 199 , 101 , 324 . 101 . 300 VMiK StPckdale v. iJuiilop, M. A W. 224 I!>4 Stodart v. Stodart, W. W. iV a'B. (K.) :>'.) 245 Susjden v. Lord 8t. Leonards, L. R. 1 1'. 1). 154 107 Swan V. Seal, 10 V. L. R. (K.) 57 533 .Sykes v. Dixou, 1) A. OUTH AUSTRALIA. 21-22 Vic. >;o. 1.^.— The " Rt'iil l»ropert.y Act "— proposed (1857) and carried (Jan'y, 1858), by Robert Richard Torrens, of Adelaide, then Pre- mier, and afterwards Registrar-General of South Australia. It is the original Torrens Title Act, ujjon which, as modified in 1858-1801, all subsequent legislation in the Australasian Colonies and else- where is ultimately founded. 21-2 Vic. No. 16.— An Act to amend the Real Property Act. [1850. — " The South Australian System of Convey- ancing,'' by Robert R. Torrens, Adelaide, Aus- tralia, 1851).] 28-4 Vic. No. 11.— .The Real Property Act of 18<>0. — Consolidated and amended the foregoing Acts. 24-5 Vic. No. 22.— An Act to amend the Real Property Act of 18r,0.— Cited (Sec. 2) as the " Real Property Act of 18- IVA Vie. No. 11.— An Act to amend the Keal Tro- 1S70. perty Act of isc.l,— ('ited (Sec. S) as the Real Vvo |terty Act Amendment Act, 1S«»1). 1S7S. 41-1' Vic. No. 1l»s.~An Act to amend the Keal Property Act of lsr»], and to repeal the Keal Pro perty Amendnient Act. 1S(J!I. and for oi:\wr pur- poses. — (Mt«'d (Sec. 1') as "Keal Property Act Amendment Act of 1S7S." ISSl. No. 22:i.— ''An Act to amend the Real Property Act, lS(il, and f(»r other iMirjMises." — (Mted as the " Rijiht of Way Act, ISSl." 1SS(;. 4J» & .'(» Vic. N(». :?S0._'« An Act to consolidate and ainend the Real Propeity Act. is«;i; the R^^al I'ro ]»erty Amendment Act, 1S7S: and the Rifjhts of Way Act, 18S1: and for other purposes." — Cited (Sec. 1) as "Real Pro[»erty Act, ISSfi." 1SS7. 50 & 51 Vic. No. 4(»:{.— " An Act to amend the Real Property Act, 1S8«)."— 4Mted (Sec. 1) as the " Real Property Amendment Act, 1SS7." ISn.*?. 50 & 57 Vi«'. No, 5<;f>.— Real Property Amend ment Act, ISO.".. |s(;:i 1^71. ;J 1NS7. isr.i*. TI. VICTORIA. 1S(;2. 25 VU: No. U(».— The Real Property Act, IHC'I Founded upon Torrens South Australian Act of 18(51. Amended l)y.N(»s. ISO, 210, 22:i. Repealed and re-enacted bv the Transfer of Land Statute (IStiO), No. :{01. lS(i«. 20 Vic. No. ;i01.— Cited (Sec. 1) as "Transfer of Land Statute.'' This Act, which has been the sub- ls7:!. IS7S. TltIUlt:\.> TITLK Lt:'HSLATIi>.\ J\'. S. WALES, .t •. XXvll je<*t of vcrv full judiiial Inlciprctntiou ividi' ili<* DiHos ill this voliiiiu'. piissiini, wiis in 1S!M>, with its ;iiiM'inl1lij; Acts, roiisorKliitcd In No. WW), th«' TninstVi' of Laiul Act, 1S!M». ISilT. ;!1 \'ic. Xo. :il7. TrmislVi- of Lsiiul (Aiiu'iuliin'iit). 1S(57. |M;'.t. :v.\ Vic. No. :{.":].— TiJinsfci- of Land (Uowcii, \sm. ls71. WTi Vic. Xo. 40-J.— TraiistVi' of Land (Frii*ndiy S(tci«'ti«'s), ISTI. — Kiiahlt's (S«'c. 1| tnistet'S for tinu' IxMii^f of any sotiety to «*ttVctnally transfer the land. 1^7>. \'l Wv. Xo. (510. — Transfer of Land (EaseincntH), 1N7S. l>vr». 4!l Vic. Xo. S.!.-).— Transfer of Land (I'nblic Hnild injrs I'rotectiou), INS"). 4!> Vic.. X'o. S-'j."). — Transfer of Land (Survey boundaries), ISN."). 4!» \'ic. Xo. STl'.-^Transfer of Land (Amendinent). 1P"~. 1SS7. :A Vic. No. J>45. ]sJM». .14 Vic. Xo. 1140.— "An Act to consolidate the hiw relatin«r to the Simplitication of the Title to and the Dealinjjr with Estates in Land." Cited (Sec. 1) as "Transfer of Land Act, ISOO." Sec. L» repeals 2!> Vic. Xo. 'Ml; :U Vie. Xo. :U7; :« Vic. Xo. ;i5:{: 35 Vic. No. 402: 42 Vic. Xo. 010: 41) Vic. Xo. 872, except Sees. Vu and OS: .-)! Vic. Xo. 945, except Sees. 1>, 10 and 27. ist:2. .ct of 3ealed tatute fer of e snb- TIL XEW SOrTH WALES. 1S(52. 20 Vic. No. 0.—" An Act for the Declaration of Titles to Land and to Facilitate its Transfer."— Ciied (Sec. 2) as the " Real Property Act." This Act was founded upon Torrens Acts (South Aus tralia). 1S5S.1S(;1. 1st:'. .'U; Vic. Xo. 7.—" An Act to amend the Real Pio Iterty xVct of 1S02."— Cited (Sec. 7) as the "Res' I Property Act Amendment Act of 1873." 1S7S. 41 Vic. No. 18.— "An Act to further amend the R^-al Property A, :'.(> \'i('. No. 7, and 41 Vic. No. 18 " (Real I'rojterty Act and Amending Acts).— Cited (Sec. '1) as the " Oon- veyancers' Enabling Act of 189.3." IV. QUEENSLAND. 18«1- 25 Vic. No. 14.—" An Act to Simplify the Laws 18(52. relating to the Transfer and Encnmbrance of Free- hold and other Interests in Land." — Cited (Sec. 2) as the " Real I'roperty Act of 1801. — Went into operation January, 1802. Founded on the Soutli Australian Act of 1801. 1877. 41 Vic. No. 18.— " An Act to amend the Real Property Act of 1801." Cited (Sec. 2) as The •' Real Property Act of 1877." 1888. Consolidation of Queensland Statutes. V. WEST AUSTRALIA. 1874. :W Vic. No. 13.— " An Act to Simplify the Title to and the Dealing with Estates in Land." — Cited (Sec. 2) as the '* Transfer of Land Act, 1874." 42 Vic. No. 15. — " An Act to amend the Transfer of Land Act, 1874."— Cited (Sec. 1) as the " Transfer of Land Act, 1874, Amendment Act, 1878." 43 Vic. No. 17.—" An Act to further amend the 1878. 1870. Transfer of Land Act, 1874." VL TASMANIA. 1802. The Real I'roperty Act. — Went into operation 1st July, 1862. — Founded on the South Australian Act of 1861. 1875. In Sess. Paper No. 45, H. J. Brickland, Recorder of Titles, summarizes the operations under the Real Property Act from 1st July, 1862, to 30th June, 1875. 1 Are. owner es biH incern , !♦, :Ui ty Act " dm- TORKHys TITLK LEUlsLATlON -NEW ZEALAND. XXIX 1>7k No. f>.— Real ProiHTfy Att. iSSi. No. !'.•. — " ('onvryjiininj; anil Law of l'n»|>erty A<'t, 18S4 " (Siti. lS<5. >*e^\orkinp of the Act. In the twenty-om* yi»aiM of its operation hind to tiie value (»f £l,7 as tlu' 'Land Transfer Act, 1870." This Act r»'i.M'alc'.i the Laud Ke." This Act, which went into operation 1st January. 1880, consolidated, and by Sec. 224 repealed the Land Transfer Act, 1870, iind Amending Acts, i.e., all the above Acts. It also repealed bv Sec. 224, the Deeds Registration Act. 1808 (1808, No. .51), "so far as relates to land after it has been brought under the provisions of this Act." .52 Vic. No. 40.— "An Act to amend the Land Transfer Act, 1S85."— Cited (Sec. 1) as the " LanisLArtoy r.iy.t rajijurojuj^ij. VIII. DOMINION OF CANAhA. iTKKUlTOHlEH). ISTS. Itill introduced Ity tlif lion. Ihivid .Mills. Minist.T <»r till* Intrrloi-. to Jipplv tln' ToneHH systrtn to the NOithAWst Tfiiitoii.'.^. 188:{. Mill tor tin- Siinif piir|K«H«' by .Mr. Djillon Mr- rji.tliv, <2.('., rcjid ii first tinu* in tin* t'oniinoiis A|uil'j2. 1SS4- Hill for tlio sjinn' jnii-posc by Hon. Sir Al«'xand«'r iss.'). <'iiniplM'll. .Minister <»f .Justice, carried tlir«Hjs7. INN-. 1SS7. INN 7. 1 sss. 1SS!». 1S!(0. IS! (2. lN!i;{. I ink;!. IS! 15. IX. J'ROVIXCE OF ONTARIO. 1885. 48 Vic. c. 22.—" An Act to Simplify Titles and to Facilitate the Transfer of Land."— Cited (Sec 1) as the *' Land Titles A«'t, 1SS.5."— Founded upon the Imperial A<*t, M8 and :\\) Vic. v. S7. (Lord Cairns' , Act. See infra under Oreat Rritain). — Rei>ealed Iss.- 4 1 TOH/my.S TITLE LL'USLAiJoy 'U\TAU >. \\\i Luiul •. r>i Tt'rri- t«; an J Teni- s Act, c. 51; is Act itorios, itoru'H .iiitl r*' fiiact<'«l, Willi aiiM-nduM'iits. In KrvJHiil HfaliitMS of Ontario, iss" (U. S. (). I^s7(, C I hi. issT. .'»<» Vic. c. 14. — "An Act r«'H|K'ctln>; tin* Ciistotlv of |)oninn*nts irlatin^' to Land Tith-K." — rit»'«l (*S««o. 1) ais llir "rnntody of Tith* IhMMlH Act." — run- tinin'«l aw H. S. ()., iss7, c 115. Ins". 5(1 Vi«'. c. 1.5. — " An Act to Kxtrnd tin* Opcnition of tin* Land Tltl<'H Act, and otli('i\viN<* aincndin^ \\u' sanir." ls>7. 50 N'ic. c. ir..— " An Act to Kxtrnd tin* Land TiilcM Act to tia* Oud.vlii^ IMstrictw of tin- l»roviiic«'."' IssT. KcvistMl Slatut«'M of Ontario, Iss", c. 11.5. — "An Act rcsiMM'tin^' tin* <'nstody of DociinicntM rolatin^ to lianah'd and n*(*nactt'd, ,50 \ic. c. N. I>s7. Hcviscd Statutes of Ontario, ISS7. c lir,, — "An Act to Simplify Titles and to Facilitate the Transfer of Land." — rited (Sec. 1) as the " LanS.— The " Real Troiierty Act of 1SS,5."— W«'nt into force 1st Jnly, 1SS5. — Consolidated and repealed by the "Real I'roperty Act of ISSO." XTXll TDliUKSS TITLK LK'HSLATfoX M.WITORA. ISsr*. 40 \\r. V. •>.—<• An Art to iiiihmhI tli«' ' Rcnl Pro iH'i'ty Act of IN^.'.' uimI for oiImt piiiposi'H." |ss7. .'!> VI''. V. 11. — " \\\ \v\ to fiiillu'r iiiiicnit llic Ht'iil l*io|M'rtv Act <»f l>s.",' iiihI tin* A»'t uiiu'iMliiiK X\\V MIIIIH'." isss. 51 \"if. c. L'l.— ".\ti .\'\ of iss.",' iiimI for otluT pur poses." l.SM.s. .-,1 \'ic. r, 'Jl'.— •• An Aei to iinieiid the Real I'ro peity Art of ISH.-, jiiid Aniendln;; Aetn." 1SS!». Ti'l \'if. e. It;. — "An .Vri lespettln;; Ili'iil Property in tlie Provlnee of Miinitoltii." — Cited (See, li .is the " Kenl Property Art of lss!>."— <3onNolidates iiiul repeals (Sees. '2. Is, l.">2) all the foregoing; Aets. This Art was itself with amendments consolidated l.y K. S. M. (ISJH) c. 1:{:J. 181M». .".'5 N'ic. c. r».— " An Act to amend c. Hi of 52 Vic., hein^ 'An Act respecting Real Pr<»perty in the Pn»vin('e of Manitoba.' " l.s'H, r.4 Vic. c. t;.— " An Act to amend c. U; of .")2 Vi(!.. being ' An Act respecting Real Property in the Province of Manitoba and amendments.' " ISin. Rt'vised Statutes of Manitoba, c. i:W.— The "Real Property Act" (Sec, 1) consolidates the Real Property Act of 1SS!> jmd Amending Acts. 1S!»4, 57 Vic. c. .•{(».— "An Act to amend the Real Pro- perty Act " (R. S. M. c. i:i:{). XI. PRO VIN(^E OF BRITISH COLUMBIA. 1870. X\ Vic. No. 17. — " An Ordinance to Assimilate the Law relating to ^he Transfer of Real Estate and to I'rovide for the Registration of Titles to Land throughout thc' Colony of British Columbia." (Ist June, 1870). 1871>. 42 Vic. c. 22.—" An Act to amend Sec. 4 of the * Laud Registry Ordinance, 1870.' " 1871. Revised Laws of British Columbia, 1871, No. 143. 1872. 35 Vic. c. 31.— " An Act to amend the 'Land Ordinance, 1870.' " 1873. 30 Vic. No. 21.— " An Act to amend the 'Land Registry Ordin.ince, 1870.' " (2l8t February. 1873). rnHRKHS TITLK IKulSt.ATloX nRITtsN Citl.rMBlA XXXIII 1S.M4. 47 Vic. V. 17. — "An Art to amend the 'Lund HeKlMtry Oidlnanre. 1S70.'" [AiiicndM S«'i'. 51].— (*i(cd iS«>r. '1\ UH the " Ijiind U«*KiHti\v AiiicudiiKMit Art. 1NH4." IMS.'. 4H VIr. V. 17.— "An Art n>latinK t« the New WesriniuHter Dhlrlct Land l^•KiHtly Oftlie." 1SS7. r»0 Vie, e. IH. — "All Act to fiii'ther amend the •Land Ht'^lHtr.v Ordlnane*', 1H70.'" ISSM. .')! Vice. 17. — "An Act to further amend the •Land Re;:i«ti'.v Oidlmmce, 1H7(>.' " KSMS. '• The ConHvtlidated IMibllc tieneral ActH of BritiHli t'olumhla, ISHH" (Hhoit tith', " (JonHolidated ActH. IHSM") c. (57, "An Act rehitinK to the TranMfcf of Heal Kntate, and to provide for the lieKlMtratlon i»f TitlcH to Land."— Cited (Sec I) aH the "Lund UeKlHtr.v Act." JSIHJ. .":{ Vic. c. 24.— "An Act to amend the • I^md KeKlHtrv Act.'"— Cited (Sec. 5) aH the "Land Keulstry Amendment Act, 181J0." isiio. :»:{ Vic. c. 1».*).— "An Act to further amend the ' Land Kej^lBtr.v Act.' " IMH. ri4 Vice. IG.— "An Act to amend the ' Umd Ki'UlHtiy Act ' and Amendlnj? Act."— Cited (Sec 10» aH the " Land Uegistry Amendment Act, 18U1." 18!L\ ."3') Vic c 2«.— "An Act to amend the 'Land Ii«'l,MHtrv Act.' "—Cited (Sec. 1) an the " Land RegiH try Amendment Act, 1802." 1803. .5({ Vic c 2;i.— "An Act to amend the 'Land Kegistry Act ' and Amending Acts.' "—Cited (Sec. 1) as the " Land Registry Act Amendment Act, 1893." XIL GREAT BRITAIN. 1830. Report of the Real Property Commission on Registration. A paper contributed by Jeremy Bentham, and appended by the Commissioners to their report, deals with registration of title. The appendix also contains a suggestion from Mr. Fon- nereau and Mr. Hogg for the application to land titles of the machinery of the Funds, being the same in principle as that of the Shipping Act, XXXiv roHRKSi riTLK LlkUlsLATloS URKiT HHIVAIS. is.":{. isr.4- l!«fi2. ^\liirli liithT Im riinif ill is.'T Mr. T«»ri'<'iiN' iiiotlt'l in IiIm Hutith Aiihtniliiiii iiM'iiNiirc In 1S44, Mr. Uoth'it \\'il*«)ii w((ik«Ml out with Moinc (ictall n Hliiiiliir Nii^^cKiioii ill a iniltjiciitioii niiirli wiim iHm* riiHHcil ill I lit* JiiNv pfiitMiicalH. l{<*);lNtratioii of title wiiH ill Istii iliHriiHNrd ill nil artiric in tlic " Wt'Nt- iiiiiiHlci' l{<'vi<>\v," and wax about tin* Manic tiiiu' tatvfii n|i and ifportcd on by a ronmiittcc of the Law Ainrndnicnt Soricty. In ls."»:i It wjih n-coin- mended by tlie n'))oit of a roimiilttee of tlie IIouHe of ('oinnioiiN. The Hoyal <'oinniisHion of ls.'i4 reported unani- nioiiHly in IS." in favor of re);iNtration of title, though Monie individual <'oniiiiiHHioiierH differed iih to tile prerlHe laelliod aiiil <>xtent of ItM application. .\iii(ai^ the Hi^:natnreM to the report were thoHc of Richard llethel. afterwardH L. (\ WcMtlniry. ami Robert Lowe, afterwardH (Miancellor of the Ex- 1 lieqiier, who had th«*n returned from AuHtralia. — In ^iviii^ evidence before the rommiHMion, Mr. Frenhlield. artlv on anoiiiit of IIh rc<|iili'iii); ii iiiarkctahh' title and a drlliiltion of iMMiiMlarlcM, ainl partl.v on arroiinl of Iim not kIvIiik in rralltv, — thoiifrli ill iiain«>, — an intlt'rcaKlltli' titiv until tli(*r«' lin i'i>(;iHt<'r«'(l laii«l lor valnahic coiiHidcratioii Miil>M«'i|u«>iit to rr^jiHtra- tiou. And rnrllit'i', aH Hir Kohni TorrcnH liiiiiH«')f I" KHHa.v on tin- Tiansft'i of Land hy Uc^lMtratlon "') |iointM out, tli<> imm'iiiImhIvc iihc of d«'rdM HanrtioiictI (H»M'. WW) hy liord WrHthnry'H Act lnvolv«>M a ro»ii- Itination of two inronipatlldo priiirlplrH — " rt'^is- tnition of dtMMJM " and " n'^lHtnition of title'* Ltird WrMtlmry'M Art wtlll rcniaiiiH law as to lltlrn n'Ulntcn'd niid«'i* If. and not n* ro^lHlrrrd niidn* l.ord CalriiH' A<-i of tHT.'. HIiniiltaiMMMiHly wifli tlilH Land Hr^iHtrv Act, \X\V1, wan jtaHHcd tlio h«M laiatlon «»f TitiV Act. lStL»— l!."i & LM{ Vic. c. be kept. (Sec. \\\\]. Lord W<»Htbury'H Declaration of Title Act, lHti2, became in 18r».') the banlH of the Quiefin^ Titles Act of Upper Canada (Ontario), 21) Vi<'. c. 2r>, which luiH been continued uh K. S. O. 1S77, c. 110, and R. S. O. 1887, c. n.i. m\W- An AMHociation formed in nubliii in 18r».']. 1S(m. with tlie Duke of Tj«'inHfer at ifn head, endeavored to supplement the Landed ?]8tate» Court Act by a measure for Ireland analo}(ouH to the Torreiis Ai'tH of Australia. A bill was prepared under the direction of Sir Robert Torrens himself, and re- ceived its flr«»t reading in the <*ommons late in the session of 18(i3. During; the next session the bill was altered to suit Lord Westbury, and, in sjdte of Torrens' remonstrances, certain ])rovisions were imported into it antagonistic to the principle of registration of titles. The bill became law as 28 & 20 Vic. c. 88 (Ireland), and was entitled " An Act for the Recording of Titles in Ireland." The preamble recites : " Whereas it is expedient that titles conferred by the Landed Estates XXXvi TORRESS TITLE LE'ilSLATlON-HREAT BRITAIN. fret' from t.'om- dealingH with tith' may bt* Like the Land under thin Act ])erBon by Hijjn- Coiirt, Ireland, Hliould be I^ept plication ho that HubHe(]uent the eHtateH held under such more simple and economical." Ke^intry Act, lH(ili, registration also was permissive, so that any inj? a simple recjuisition could exclude the appli- cation of the Act to his land on its passing; through the Estates f'ourt. (Evidence of Mr. Trlin before the House of Commons Committee, V^70, Q. IDSC* et seq.) Hec. .12 enabled ])ersons whose properties were on the register to withdraw ihem at any ])eriod, and cases had occiirred wh< re owners had under pressure removed their title tr'>m the record. The Act also ])ermitted the use of deeds and im- posed a prohibitorv tariff of fees. In the result, like I»rd Westbury's two English Acts of 18(>2, liis Irish Act of 1H(J.^ became a dead letter. Sir Robert Torrens sat in the Commons for the borough of Cambridge from 18()S to 1S7J?, and in lS7Ji introduced a bill to rectify the Irish Act, but his bill did not get beyond the preliminary stage. IHCJS Royal Commission on Registration of Titles. 187(h Report (par. CJJ) affirms: "We have conclusively shown that purchasers do not want indefeasible title " ! And again (par. ($5) " The [Torrens] system is inapplicable to dealings with land, be- cause ships are legally divided into sixty-four parts " ! The value of a registered title is, how- ever, grudgingly granted: — " 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 the source." 1870- 25th February. Circular Despatch of Earl Gran- 1881. ville (Colonial Secretary) to the Governors of the Australian Colonies, calling for reports on the working and progress of the system of conveyanc- ing by registration of title. On 8th May, 1872, on motion of Mr. Torrens, the replies were brought down to the House of Commons and ordered to be printed. — On Ist September, 1880, the Earl of Kimberley (Colonial Secretary) addressed a circu- lar despatch to the Australasian Colonies and to British Columbia for information supplementary to that obtained by Earl Granville, and the re- plies were brought down to the House of Com- TOnRSyS TITLE LEOISLATIOX-OREAT BRITAIX. XXXVU 1U0I18 10th Ma.v, 1881, and ordered to be printed. The replies of the Uovernors of the various Colo- nies concurred in attiriuin);; the complete success of the Torrens System. 1872. Attorney-Oeneral (afterwards Lord Chief Justice) ^ Coleridge presiding at ihe Congress of the Law ' Amendment Society at Cheltenham, declared that " he had never been able to perceive the obstacle to jipplying to land the system of a transfer which answered so well when applied to shipping; but as his learned brethren, one and all, had declared that to be impossible, he had become impressed with the belief that there must be something wrong in his intellect, as he failed to see the im- possibility. The reuuirkably clear and logical pa]»er which was read by Sir R. R. Torrens relieved him from that painful im])ression, and the statis- tics of the successful working of his system in Australia amounted to demonstration: so that the man who denied the practicability of applying it might as well deny that two and two make four.'' Lord Cairns' Act, ,iS and 39 Vic, c. 87. 1 S7.J. ;i8 & 39 Vic. c. 87 (England).—" An Act to Simplify Titles and Facilitate the Transfer of Land in Eng- land." Cited (Sec. 1) as " The Land Transfer Act, 1875.'' Sir Robert Torrens (Essay, p. 41) criticizes this measure as follows: — '* Lord Cairas' Act is to some extent obnoxious to the same objection!* whicli caused the miscarriage of that introduced by Lord Westbury. Notably, Sec. 40 admits of conveyancing of registered land being carried on by deed for an indefinite period. So far it is but a hybrid measure, an attempt to carry on two an- tagonistic j)rinci])les in dealing with land. Again, as indefeasible title is given to purchasers only, it affords no inducement to holders to register, as they would not get their titles freed from tech- nical defects and doubts, but would continue as regards future dealings, such as leases, mortgages, encumbrances, etc., under the present law, sub- ject to all its cost, uncertainties, and delays. Tho ofTioial mechanism for carrying out this measure, though a great improvement on that prescribed by Lord Westburv, is vet sufficientlv cumbrous to warrant the opinion of Mr. Spencer Follett ((/hief of the Registry Department under Ix)rd West- bury's Act) * that it could not be carried on on such a scale as would compensate for the expense.' XXXMl TOHItKyS TITLK LKOISLATlO.y-URKAT lUilTAlS. Tlu' Jid valoi'CMii churKes also uppoaf excessive and deterrent. Finally, even if free from these defects, the result of K^^in^ nominally to the pro- prietor, but practically to his solicitor, the option to place land under tlie system, and the power t(» withdraw it a^ain from that system, is in itself suffli'ient to ensure its failure, as has been demon- strated in the case of the Irish Act." — I^ord Cairns' Act, pur^^ed of most of these objectionable fea- tures, became, in 1885, the basis of the Ontario Act 48 Vic. c. 22, now continued as R. S. O. 1887, c. 110. See the last .—" An Act to establish Local Rej^istries of Titles to Land in Ireland." Short title (sec. 1) the "Local Registration of Title (Ire land) Act, lS exempts from from refjistry of deeds land rejjistered under this Act. Hy sec. 22, the first rejjistration of land under this Act is voluntary, except in certain cases arising; under the Purchase of I^md (Ireland) A«ts. But under sec. 25, where registration of ownership is compulsory, no title is acquired by the transfer until registered. To render any such legislation for England effec- tive. Sir Robert Torrens regarded the following provisions as imperative: " Ist. — The estate shouhl pass on registration, not on the execution of a deed. 2nd. — The title under it should (except so far as regards possessory registration) be indefeasible. 3rd. — The registration should be compulsory upon the first dealing with the freehold after the date appointed for the Act to become o])erative. 4th. — The register should be metropolitan. 5th. — The adoption of the duplicate method of conducting registration as in operation in the Australasian (^olonies. 0th. — Lands once placed on the register should not be withdrawn." XIII.— UNITED STATES. In the older States the system of registration of deeds has confessedly broken down by its own weight. Mr. Wm. D. Turner, of Boston, writing in the American Law Review for October, ISOl (25 Am. L. Rev. at p. 755), says: "It must be ad mitted that such disadvantages as our method of registration are rapidly increasing. The examina tion of title to land involves each year a greater amount of labor and a higher degree of skill. A business man accustomed to dealing with large interests in personal property is usually astonished xl TO/{RKy:S TITLE LEUlSLATlOS—iWITED .STATED and (liHgusted upou tli'Mt eucouuteriug the expeuHe and delay incident to u tmnsfer ui* mortgage of laud. * ♦ • For the first hundred years in which our system was in operation it was not dif- ficult to do this [i.e. to ascertain whether the deeds shown in the abstract affect the matter in hand]: MiiKH. in Massachusetts, for instance, seventy-nine boolcs in the Suffolk County Register were sufficient to cover the period from 1G50 to 1750; but during the year last past (18{)0), nearly twenty-four thousand deeds and other instruments were recorded there, nmking sixty volumes. These volumes contain 040 pages each, and are larger and more com- pactly written than the earliest ones; so that the quantity of matter recorded during the year last past is as great as recorded during tlie entire l)eriod of the first hundred years of the existence of the svstem. • ♦ • \. Y 111. " In the fMty of New York, without the assist- ance of the official searchers, who have ])rivate own, a safe examination of impossible. Nor is this as- considered sufficient. An en- here published a ' Snpplemen- * Searcher's Assistant,' with the more than two hundred dulv re- indexes of their the records is sistance always enterprising firm tal Index ' or assertion that corded deeds are not referred to at all in the offi- cial indexes, and that the number of mistakes or erroneous references to be found in them is over two thousand." In Illinois and especially in Cook County including Chicago), search of registered deeds has become so difficult and hazardous as to create and keep busy two new classes of corporations known as Abstract Companies and Title Guarantee Com- panies. Report to the Illinois State Bar Associa- tion by Prof. Harvey R. Hurd. of Chicago, as chairman of the Committee on Jurisprudence and Law Reform, published in 25 Am. L. Rev. (1891) l\Cu. Professor Hurd estimates for the State of Illinois an annual expense of about $10,000,000 for abstracts and their examination. The Legislature has this year (1805) passed an " Act Concerning Land Titles," in^roducincr the Torrens system in such of the counties of Illinois as shall adopt it by a simple majority vote. " If a majority of the votes cast on that subject shall be for the Torrens land title system, this Act shall thereafter be in force and apply to lands in that countj'." (Sec. 04.) INTRODUCTION. in >4.) lu the forejjoiug suiumury I have outlined the evolu- tion of the statutes by which, in various countries, the Torrens System of Land Transfer has been introduced siud extended. In tlie seven Australasian ('olonies and in parts of Canada the Torrens System has completely (lisi)laced and sujierseded the old system of title and ((uiveyancinj; by deeds; and, even in England, Lord Cairns' Act of 1875, notwithstanding its defects, is vis- ibly (^ainin}; ground. Where the title depends upon a chain of deeds, or other documents, the strengtli of the chain is necessarily no greater than that of the weakest link, and the very best chain of title always falls short of absolute proof. One of the most eminent conveyancers in England, giv- ing evidence before the Royal Commission in 1850, said: " Title by deed can never be demonstrated as an ascer- tained fact ; it can only be presented as an inference more or less probable, deducible from the documentary evi- dence accessible at the time being." Dart in his Trea- tise on Vendors and Purchasers (Oth Ed., 1888, vol. I. 1>. 348) cautions solicitors against resting upon the former opinion of eminent counsel : " Titles, it is believed, are constantly accepted, almost without investigation, merely upon the faith of their having, on some previous occasion, been advised ui)on and accepted by counsel of t'lninence. It should, however, be remembered that the decisions of the various Courts of Law and Equity have a retrospective effect upon titles; so that in estimating the value of a favorable opinion taken a few years pre- viously, allowance must be made for the j»ossibility of tlie title having been since rendered unmarketable, pos- siblv unsafe, by some intermediate exposition of the law." xlii INTRODlCTIoy. Merely Mttinipiiif; and ret'ordiujf the linkH in the dinlii of tltU», as iH done In a rej?iHtrv ottlce, does not add any 8trenj;th to the link or diminish the expense of convey- uucin^. Lord Cairns, wlien Attorney-( General in IHol*, speaking; in tlie Honse of Commons, pronounced " tlie objections to a register of deeds to be so manifest tliat hardly any person in the present day would venture to propose it. It would not simplify title in the least. It only puts on a formal record the whole of that multi- tude of deeds and conveyances, of the extent and com- plexity of which we have already so much reason to complain. You have to investigate and search just as before; in addition to that you have to pay for searches in the register, and also to pay, in some shape or other, the expense of placing the deeds upon it." Hix years after Lord Cairns uttered those words, Mr. Mowat, in an open letter upon the Quieting Titles Bill to Mr. J. A. Mjicdonald (then in charge of that bill as Attorney- (i«iieral for Upper Canada), stated the practical results of the registration system in I'pper Canada as follows: — " All sorts of questions have to be considered in looking into a title, prior to making a purchase or ac- cepting a mortgage. Are the deeds and wills through which the title is traced genuine instruments? or have any of them been forged or tampered with? Were th"y all duly executed? Have all the forms required by the statute been observed in the registration of them? Were all requirements of the Acts affecting married women complied with? Did every testator possess the requisite mental capacity at the time of signing his will ? Was it read over to him? Did the witnesses subscribe their names in the presence of one another? Even in regard to these ordinary questions that occur on almost every title, examples of misinformation and misfortune have not been wanting. "But sometimes much more diflBcult questions than these have to be determined as to the construction of wills. Occasionally, difficulties of this class entirely IXTRODirTIOW xliii <'wniiM* attcntUm wiilk* a tltli* Is inveHti^^ntiMl. And. at otluT tliue«. a wnuij; cont'luHion Is conu' to in ivf«'ren«'»' to tlu>ni. " Then queMtlonH of identity, and qncHtionH rt'Iatin}; to poHMllile clainis for dower, liave HonietlnieM been over loolved by fonnei* pui'cIiaserH, and involve eon»iderable perplexity in Mnbttequent inveHtijjationn." After notiein); various other dIfflcultleH, Mr. Mowat liroieeded: '• Apiin, in the country lar^je blocks of fann- luj; land often depend on a single title; or a farm lot is. in the formation of our cities, towns, and villages divided into building lots; and a tlaw in the title of one of those who owned the property before the division of it de- stroys the title not of one person only, or of one family only, but of many persons and many families. "It often happens too, that the original title is, in such cases, less carefully examined than if there had been no subdivision, and one persim was buying all. Parties appear to think that a weak title acquires strength by the number of persons who hold by it; or everybody assumes that his neighbor has examined the title and found it correct, and he trusts to this supposed investigation in order to avoid the expense of an indepen- dent investigation of his own. Where there are easy methods for obtaining an indefeasible title, no one would think of subdividing his land without first obtaining a certificate of title. " Our Registry law has, beyond all controversy, been of immense advantage to the country; and yet in regai'd to any of the questions I have spoken of, it cannot be said to afford any protection whatever; >ie need some- thing to supplement its provisions before our titles can have the reliability which it is very desirable they should possess. The Registry law in fact provides for but one source of danger to a i>urehaser, namely, unknown con veyances affecting the property. It affords little or no aid in ascertaining the validity of conveyances, the pro- per construction of deeds and wills, or any events affect- ing title, otherwise than by written instruments; or in xliv JMKODLVTIOX. HiipplyiuK till? futiiiv proof of HUi'h eventH. Thfw* thiu^H inuy be of i^ivatcr inomeut to un intending purchiiHt'r tlitin the poHHibility of tliei'e being Home deedH tifTectinjL; I lie property ot which, but for the regiHtry law, he would not have known. ♦ • • ** It is a further HeriouH iueonvenience, connected with our exiHting syHteui, that if a purchase is effected, or u loan granted after an investigation which satisfles the solicitor employed that the title is good, the whole inven tigation has to be gone over again before every fresli transaction in reference to the property; and a title that was satisfactory to one lawyer may not be satisfactory to another; as, among lawyers, there are all degrees (»f professional skill and knowledge, and all degrees of prudence and caution as well as of experience, besides, the ablest and most cautious lawyers may occasionally make a slip or overlook a defect which an inferior man may ha]ipen to detect. Sometimes, therefore, one solici- tor finds it his duty to reject a title which another solici tor has examined and ]mssed; and this is the case not only in Canaida but in England also, where conveyaniinj; is a distinct branch of professional practice, and has re ceived a degree of careful attentiim which it is not i)os sible for general i)ractitioner8 in Canada to give to it." Hince those words were written the older parts of Ontario have had thirty years more of registering deeds; and, though the machinery of registration has been much improved, the force of the intrinsic objections abov»' stated is nowise impaired. In Australia the same difficulties were experienced under a like system of registry, and it was there that an effective remedy was worked out by the genius of Robert Torrens. Torrens was collector of customs at Port Adc laide in South Australia, and the transfer and mort- gaging of ships under the Merchant Shipping Act, 1W4 (17 & 18 Vic. (Imp.) c. 104, sections 55 et seq.), had be come a familiar operation to him. Hy a bold and bril liant extension of the same principles to lands, he pro posed to give each successive transferee what was in IS'TltoniCTlOX. xlv ilUHt'l' vouM I with , or a ?8 tlU' invt'H fi'eHh e that aetory •ees of et'8 of esides. ionallv [}V mail ' aolitTe«t a new patent from the (!rown, inntead of a mer«' derivative title inferred from a chain of doeumenlH. Ih'viwi'd In IH'iVt, exten»lvel.v dlHenHHed In IHoT, the new sriienie of land trjin»fer bi'came the law of South Au- Mlralia in January, IMS, and went into operation In .luly, — TorreuH hlniHelf having been Hpeelally Hent to Parlla- nu'nt with a band of HU])porter8 all bearing a mandate from the people to reform the law. Ills bill beeanw law. TorrenH withdrew from political life and devoted liiniHelf to admlnlHterlng his own Act. The Hubaequent stages of le);lHlation in South AuBtrnlia, the rapid -Hpread I of the TorrenH Syntem to other countries, can be traced in the Summary (»f lii'^^lslatlon above jjlven. In the Australasian Colonies the Torrens System has [now been worked out with the jjfreatest fulness, and nnder numerous decided cases has acquired great unl- Ifonnity of procedure and practice. The following tuit- llinc of Torrens' System as fln«lly perfe«'ted by his own llumds will make clearer the important cases decided jnuder the Australasian statutes and reported below. [n tills outline I have followed as closely as possible Torrens' own explanation as contained In his various ^inbjications. Every certificate of title representing the freehold forms a distinct root of title and is made in duplicate, l)ne original being Issued to the person entitled, while the other is bound into the register and constitutes a ^istinct folium thereof. A folium may comprise one .or lore pages for recording the memorials of mortgages \v other dealings, whether with the fee simple or any fsser estate or interest, and whether subsisting at the Ime of issuing the certificates or subsequently created. [orrens strongly insisted on the duplicate system as Dth facilitating dealings and safeguarding against Nud. In the case of transfer of the fee of part only of the ^nd comprised in any certificate of title, the memorial such transfer may be entered on the existing oertlfi- Ite, or the transferor may take out a fresh certificate X.Vl ISTliOlU ('Tins, for till' part iiiis(»l«], hut in Hiirli vwhvh it in oltiipilorv on tin* tniMMfntM' to ttli\r out il flTMll crrtiflrutc, wliirli will then form a fi'fMli loot of titio, occup^vin^; a frcHli foliiini of tile rr^lKtn*. Kntr.v of iiKMiiorial of ,a\y tranHTt'i' (1 iiiNtfiiinciit Im'iii'h >i iininbcr or H.vin- ImiI iiuliciitiii^ tlu' voluiiu* 1111(1 fitliinii of ilic iT^'iMtrr wlicrc tli«' hiHtory of tli«> tith* \h vvnm\v*\, )iii«l tlnix dU- t'loHcH witlioiif other Nnirrli all that it inav roiirci'ik any oiu* int«'ii prae- lice in (Mpiitabh' niortKa^cH in aH followH: — Tin* Imhtowit txccntcH a rontra<'t for char^t* in th(> autli.trixcd form, fithcr for a HiM'citlcd Huni, <»r to mMiirc a lloatin^ bal- iiiirr. TliiH conlratt, to^'tlu-r wltli tin* horrowrr'n ««*r- liHcatc of title, \h ludd hy the cnMlitor, wIm> doeH not rr^iHtfr, bnt lodftcH a caveat forbidding the rejjiMtration of any dealing with the land nntil fourteen davH, or otiier named period, have elapHed after notice of inten- tion Kerv mortpiKe into a rey;lHter«Ml charK<'. by prewentinf? the contract for charjjo with the lnu-rower'H < ertiflcate of title at the rej^iHtry office. The non-re^lHtration of trusts whi«'li prevails in the transfers of ships, of the public funds and of shares iu companies, has been applied to land under the Torrens System. But though no notice of trusts can be entered on the register, a registered owner, desiring to settle his estate through trustees, may transfer his estate to one or more persons, and then dei)osit in the registry office for safe custody and reference any instrument di'clara- tory of trusts executed by the transferees, and by caveat prohibit the registration of any dealing, «*xcept in ac- cordance therewith, or with the sanction of one of the Superior Courts. He may also direct the words '* No survivorship" to be entered on the certiflcate of title, the effect of which will be that without the sauction of the Court no dealing with the property can take place until any vacancy occasioned by death or otherwise in the original number of trustees has been filled up. Per- sons beneficially interested in any settled estate may by caveat bar the registration of any dealing therewith, cither absolutely, or until after notice for a time specified xlviii ismoinrrioy. liiiM Im>«*ii I(m1^«mI III nil luMi'fHM Kivcii. Tin* I'cKiHtnir liliii Ht'lf iiiiiv hIno, if lif tliiiikM |»ro|MM', lo(l(;<' u niv«*iit t«> pro tt'ft the iiitt'i'i'Mt of a n'Ntiil <|iit.' tniMt. The Htiiliitt'H iiili'odiiriiiK tlio Toi'iviiH H,vh(«>iii into vai'ioiiH coiintricM liaviii)i( h«*«Mi ritlu'i* (llrtMtl.v iiioiildcd hy Torn'iiH hiiiiHcIf, or iii4m1«>II(m1 upon liiH ActM, tlic whole ImmI,v of li-^ixlatioii iH ill itH principlcH : ' *it itM rlilrf (li'tailH lioiiio^rih'oiiH to Hiirh a (l(*t;;f<'<' a. iiuikv ciim'h (l«Mi(l(>(l under tla* Ntatiit(*M of any one l('KlHla(ur<* avail iiMc for tlie niHcH iiriHin^ unih'i' the HtatuteH of any <»tli<>r. Tiic (littinilty liilhcrto Iiiih l»«>fii to olitain ar(«>HM to tlifHi* widely (liHperHed iiiHeH wliirli, in addition to their diN jterHioii in niinieroiiH HerieH of very expeiiHive ri>|tortH. are there found aHHociated with niiineroiiH n\HiH on other laaneheH of law entirely iiiiHerviceable, except in the do nieMtie foriini. In the preHent volume are fully reported a lar^e niiinlx'r of important ciiHeM whieh deal with hiidin); principIcM, and are, therefore, of (general applini tlrrenH My»teni in in foree. The dijjent in deHi^ned to briu^ out fully all import' who dt-rivo a roKiHtiTtvl titli> li(»im 'iilc ninl for vahn* from n rt'ulNtcrctl owner. Accord iiiKly thoy wvil not iuveHtiKnto tlu» title of micli owner, for tliey are not aJTcctcd by its intirmiticH. Hut tlicy niuHt nMcertnin at thi>lr own i>eril liiH exiHtence and id<>ntity, tii<> aiitiiorlty of any ai;«>nt to act for him. and the validity of tliu flood under which tliey claim. Vhi' name of a rcKiMtcrcd owner having Iteen removed in favour of u flctitiouH and nnn exlHtlni; tranHferee aH the reHult of II riirK«' |)ur|>ortinK to have Ix'en executed liy ciiid tranHferee waH suliMe(iuently i>ut u|H)n the rcKiwler hy hona tide niurtKauecH. In a Huit by the true owner aKainxt the reglstrnr, the mort- (.'ii^'eeH. and tlie perpetrator of the fraud : — Held— («) That the plaintiff's name muHt be restored to the roKister ; (/<) Tliat the inortKiiRe was invalid, nnt;istered asslRnee thereof. Appeal from an order of the Supreme Court (10th of November, 1887), affirming with a variation an order of Webb, J. (18th of August, 1887), which was to the effect that the Registrar of Titles sliould pay to the respon- dent, Mary Stuart-Messer, out of the assurance 1 Present ;— Lord Chancellor, Lord Watson, Lord Hobhouae. JmtA Herschell, Lord Macnaghten, Lord Morris, and Mr. Shand, (Lord Shand). 2 Reported sub nom. Messer v. Gibbs, 13 V. L. R. 854, 9 A. L.T. 106. H.T0B.CA8.— 1 TORRE NH C'AHES. fund established by the 30th and other sections of the Transfer of Land Statute, her costs of her action and all moneys from time to time paid by her for interest in respect of an alleged mortgaRe, for £3,000, under which the respondents, Mclntyre, claimed to be mortgagees, and also all moneys necessarily paid by her for princii)al, interest and costs to redeem the said mortgage. [•249] The facts of the case are stated in the judg- ment of their Lordships. The question in the appeal stated from the appel- lant's point of view was whether, according to the true construction of the Transfer of Land Statute (Act No. 301) a registered proprietor of land can be said to have been deprived of land within the meaning of section 144, and consequently to have become entitled to com- pensation out of the assurance fund by reason of a transfer from him to a non-existent person under a fic- titious name having been forged, and by reason of such fictitious name having been substituted for his on the register as the i)roprietor, and by reason of a forged mortgage from such fictitious person to u registered mortgagee, who had bona fide advanced money on the security of such land. The case was twice argued, on the first occasion before a committee composed as noted below :* Sir H. Davey, Q.C., Finlay, Q.C., and Garner, for the appellant. Rigby? QC, and Sargant, for Mrs. Messer. The Attorney-General (Sir R. Webster) and Rash- leigh, for the Mclntyres. For the appellant it was contended that there was nothing in the Transfer of Land Statute which could be relied on as giving validity to any document which pur- ported to be a transfer either to or from a non-existing ♦Present at the first hearing :— Lord Watson, Lord Holi- honse, liord Macnaghten, Lord Morris, and Sir Barnes Peacoclc. OTBBS V. MESSEH. 3 person, although it might be in a name that had been placed upon the register. Nor was there anything in the Act which could give validity to a transfer purporting to be by a transferor who had never signed, or to a transferee who had never signed. Even if such a non-existing person could be held to have given under the operation of this Act a title to a bona fide transferee, without notice, still a document which only purported to create an incum- brance against himself, could not bind the land. The Act protects those who acquire the legal estate, not those who under a statutory mortgage acquire a mere interest in land. [*250] If the Act is examined in detail, its provisions, as well as the general scheme and object, would be de- feated if the transaction in this case were upheld and the assurance fund held answerable for them. It would nol give certainty to title according to the preamble if the registered proprietor were liable to be deprived of his estate by a forged transfer purporting to be executed by hira. The " dealings with land," which are the subject of the Act, must mean actual dealings by the actual regis- tered proprietor, not dealings by forgers who are stran- gers to it. Further, it cannot be said that a fictitious per- son who has under Sec. 4.3 obtained a certificate of title under a forged transfer, is a proprietor of land within the meaning of that section. Sec. 47 does not help the other side, for it relates to a certificate in favour of a real pro- prietor and real applicant, not in favour of a fictitious name. No certificate was issued in this case to Cameron or to the mortgagees in such manner as is contemplated by the provisions of the Act. The transfers effected were not transfers within the meaning of the Act. Fraud in Sees. 49 & 50 does not include the fraud of the transferor. Sec. 144 only gives a right of action against the registrar if there be some existing person in whose name registra- tion has been erroneously effected. The whole proceed- ings upon which the names of the Mclntyres were en- tered on the register were a nullity, and passed no title to the respondents. It was not the intention of the TORRENS CASES. Act to guarantee that a particular name on the registe'- represented a real person. Persons dealing with land on the faith of hucIi name must asccitain for theinselvt'S the nature and effect of the particular transaction they make. If a binding transaction is made with a real re- gistered owner, the Act guarantees that owner's title, but nothing more. His existence, the authority to act for him, and the genuineness of any deed which pur- ports to be signed by him, are matters for which the re- spondents and not the Act are responsible. Reference was made to Cullen v. Thompson,^ Fotheringham v. Archer,2 Hassett v. Colonial Bank of Australia,^ Oakdar V. Gibbs,* Ogle v. Aedey.' [*251] For the respondents, Mclntyres, it was con- tended that the land comprised in their mortgage was at the date of that transaction land under the operation of the Transfer of Land Statute. If Cresswell had been on the register instead of Cameron, and had executed the mortgage, the transaction could not have been im- peached, for Cress well's title would have been as it were guaranteed by the legislature. But in fact Cam- eron and Cresswell were the same person. The former was a name assumed by the latter, and the fictitious name represented a real owner whose registration and transactions were governed by the Act. Cresswell, as registered owner, though no doubt registered in an as- sumed name, effected a mortgage by a registered insrru ment, and thereby granted a title which was indefeasible under the Act. Reference was made to the preamble. Sees. 3, 4, 61, 47, 34, 40, 84, 36, 42, 49, 50; and to In re Imperial Mercantile Credit Association;' in re Hercu les Insurance Company, Pugh and Shannon's case.^ 1 5 Vio. L. R. Eq. 147. 2 5 Wyatt Webb & A' Beckett. 9n. 8 7 Vic. L. R. L. .381. 4 8 Vic. L. R. L, 380. 8 13 Vio. L, R. 467. « L R. 19 Eq. 588. 1 Jj. R. 13 Eq, 560. illBBS V. MESSER. The Mclntyres were innoeeut purcluiHei's or luortunjjees for value, without any notice, actual or constructive, at the tinu' of makinj? the niortKaj,'e, of any claim of the plaintill", or of amy fraud of CreHswell. The respondrntn, under all the circumstances of the case, were entitled to the remedy out of the assurance fund provided by Sec. 144, which was appliear to luive been tlie intention of tlie Act to confer the same liind and d '^ree of security upon all persons who, transacting in reliance on tlie register, aciiuire either proprietary rights or mere interests in land, in jfood faith and for valuable consid eration. They assume, for the purpose of this case, that the statute, in that respect, nuikes no distinction be- tween these two classes of proprietors; and that the Mclntyres' mortjfage is not liable to impeacliment upon grounds which would have been unavailing against a transfer of the land obtained by them, in similar circum- stances, from the same author. Their Lordships do not propose to criticise in detail the various enactments of the statute relating to the validity of registered rights. The main object of the Act, and the legislative scheme for the attainment of that object, appear to them to be equally plain. The object is to save persons dealing with registered pro- prietors from tlie trouble and exjiense of going behind the register, in order to investigate the history of their author's title, and to satisfy themselves of its validity. That end is accomplished by providing that every one who purchases, in bona fide and for value, from a regis- tered proprietor, and enters his deed of transfer or mortgage on the register, shall thereby acquire an in- defeasible right, notwithstanding the infirmity of his author's title. In the present case, if Hugh Cameron liad been a real person whose name was fraudulently registered by Cresswell, his certificate of title, so long as he remained undivested by tlie issue of new certifi- cates to a bona fide transferee, would have been liable to cancellation at tLo [•255] instance of Mrs. Messer ; but a mortgage executed by Cameron himself, in the Icnow- ledge of Cresswell's fraud, would have constituted a valid incumbrance in favour of a bona fide mortgagee. The protection which the statute gives to persons trans- acting on the faith of the register is, by its terms, limited It to tho propri deal, II ger wl the rej deed a the fa pass a them diflicu countt eron wj " myth." having ; nor a n surniom stances de jure, on the 1 liim in tl as if Crei he, and i That arg The v very clea delivering therefore, which th hrought i Cresswell, issued up f'crtiflcate the mortf in the Ian such pers certificate tend that tious pers mortgage whicli cam a I BBS V. M ESSE It. to those wiio actually deal wiili and dci-ivc ii<;lit t'loiii a proprietor wlume name Im upon the re^Uler. TlioHe who deal, not with the rej,nstered proprietor, but with a for jj[er who tiseB hiH name, do not trauHact on the faith of the rejfiHter; and th«'.v cannot by rej?iHtration of a forced deed acquire a valid title in their own person, althou}{h the fact of their beinj; renistered will enable them to piiHs a valid rijrht to third parties who purchase from them in j;ood faith and for onerous consideration. The difficulty which the mort^a);ees in this case have to en- counter arises from the circumstance that Hu^h Cam- eron was, as Mr. Justice Webb aptly describes hira, a "myth." His was the only name on the re>;ister, and, havinj; no existent e, he could neither execute a transfer nor a mortj^ajje. The mortfja^ees havi* endeavoured to surmount that dilHculty by arguing that, in the circum- stances of the case, (^resswell must be lield to have been de jure, if not de facto, the proprietor whose name was on the register, and that tlieir mortgage, executed by him in the name of Hugh Cameron, is, therefore, as valid as if Cresswell's own name had been on the register, and he, and not Cameron, had been the apparent mortgagor. That argument found favour with both courts below. The views entertained by the learned jiidges have been very clearly explained by Mr. Justice A'Beckett, who, in delivering the judgment of the full bench, said : — "We, therefore, feel no doubt that the certificate of title on which the mortgagees advanced their money, though brought into existence by the forgery of the defendant Cresswell, was as efficacious in their favour as if it had issued upon an honest and regular transacti(m. That certificate described Hugh Cameron as the proprietor, and the mortgagees had the right to an indefeasible estate in the land mortgaged to them. It now appears that no such person as Mr. Hugh Cameron described in the certificate in fact existed; and the appellants [*25(;] con- tend that a mortgage purporting to be by this ficti- tious person, and affecting land alleged to be his, is a mortgage of a non-existent interest — a mere abstraction which cannot derogate from the rights of the true owner 10 TORRKNH CASES. — and that the mortgaKe is theroforo worthlosB. This contention appeai'H to uh to be answered by the view put forward in the utatement of claim inferentially ad- mitted by the UegiHtrar of Titles, and mistalned by the evidence, that Charleg James Cresswell had, for the pur- pose of dealing with this land, assumed the name of Hugh Cameron. It was he who signed the transfer to Hugh Cameron as transferee, and who signed the mort- gage to the defendants Mclntyre as mortgagor, and he produced the certificate of title of Hugh Cameron for the purpose of having the mortgage registered upon it. Upon these facts we think that, in favour of the mort- gagees, he should be regarded as the proprietor of the land with whom they dealt, on the faith of the certifi- cate evidencing his title." The opinion thus expressed appears to recognize tlie principle that a mortgagee, advancing his money on the faith of the register, cannot get a good security for himself except by transacting with the person who, ac- cording to the register, is the proprietor having title t<» create the incumbrance. So far their Lordships agree; but they do not concur in the inferences which the learned judges have drawn from the facts in evidence, with respect to the position of Cresswell throughojit these transactions, and his true relation to the nime en- tered on the register as that of the proprietor. They are unable, upon the facts proved, to affirm that Cress- well " assumed " the name of Hugh Cameron for the purpose of dealing with Mrs. Messer's land. A man cannot, with any propriety, be said to assume a name, or in other words an alias, unless he acts personally un- der that name, or asserts it to be his own designation. Nothing could be further from Cresswell's purpose than his assumption of the name of Hugh Cameron; on the contrary, the mainspring of his fraudulent device con- sisted in representing Hugh Cameron to be a real per- son, a grazier, who had no connection with himself be- yond that of an ordinary client. In pursuance of that de- vice he professed to transaet with the Mclntyres in the capacity of [•257] Cameron's law agent, he attested what UtBBS V. MESSKR. 11 purported to be raiiMTon'H Hl^nnturo to tlu'ir docd of iri(>rtKiiK<\ itnd ho (;avo them a dociimont, uh(m1 by thoiii In order to obtain rogiHtration of tlieir rljjht, which bore tlint Iln^h Cameron had apiNMired pernonally before him, and liad Mk^i^nod the docunuMit in hiH presence, after nuiliini; oath to the verity of ItH (Mmtentn. Tlw iMcIn- tyres must, in these clrcumHtaneeH, have understodd CreHHwell an*' llujfh Tameron to be distinct individuali- ties. Th» y nowliere allege the contrary; and if they had even HUhp«Mted that Huf]:1i Cameron was only another name for Cresswell, they would not have been justified ui completing the transaction without inquiry. The Mc- Intyres cannot, therefore, as matter of fact, be held to Imve dealt on the faith of the certifl«'ate as evidencing tlio proprietary title of Cresswell. The truth is that Hugh Cameron was in no sense an alias of ('resswell's but a fiction or puppet created by him, in order that it might ajipear to be an individual having a separate and independent existence. The rea- soning of the learned judges fails to appreciate the dif- ference between these two things. If Cresswell had, as they say he did, " assumed " the name of Hugh Cameron, and had used it fraudulently, he would not have been a forger. His fraud, in that case, would have been in the representation that Hugh Cameron was his own designa- tion, and he would, no doubt, have been amenable to the criminal law, in respect of such fraud. But, in first re- gistering a fictitious Hugh Cameron as proprietor of the land, and then executing and delivering a mortgage in the name of Hugh Cameron, Cresswell represented the mortgagor to be a person other than himself, and com- mitted the crime of forgery. The real character of the criminal acts perpetrated by Cresswell differs in no re- spect from what it would have been had Hugh ( 'ameron been a real person, whose name was put upon the regis- ter by him, and used by him in a forged deed creating an incumbrance. Although a forged transfer or mortgage, which is void at common law, will, when duly entered on the re- gister, became the root of a valid title, in a bona fide 12 TORRE NS CASES. piircliiiHcr h,v force of the MtatiKc, then* In no (MuicdiuMit wliirh nmk«'8 iiulcfcuHihlt' tlu' [*'liSH\ ivKiHtcrrd rlj^ht of the ti'aiiHfrrci* or inort^a);(M> iiiuhM* a null (hM>4l. The Mrlntvrt'H cannot brinjf tluMUMclvcN within tlu» protec- tion of the Htatute, becanHe the niort^a^e which they pnt upon the re^lHter Ih a nullity. Tlu* reHult it) un- fortunate, but It 1h due to their having' dealt, not with a rejjlKtere«l proprietor, but with an aj;ent and for- ^er, whoHe name waH not on the rejjlnter, in reliance upiui hiH honi'Ht.v. In the opinion of their LordnhipH, the duty of ascertaining; the Identity of the principal for whom an apMit profesHeH to act with the person who Btands r as proprietor, and of Meein^ that they ^'et a ^MMiulne deed executed by that principal, rests with the mortjfatjeeM themselveH ; and if they accept a for;,'ery they must bear the i-onseipiences. Their Lordships will humbly advise Her Majesty to reverse both jud^nents below, and, in lieu thereof, (1) to declare that the mortgaKe purporting to be executed by Ilufjh Cameron to the defendants Mclntyre, is invalid, and does not constitute an incumbrance upon the title of the plaintiff, Mrs. Messer ; (2) to direct the defendant Richard Oibbs to cancel the two certificates of title is- sued in the name of Hugh Cameron and entered in f«)lio» ;54(>,5S5 and 340,580 of the register book, vol. 1,733, and also the memorial of the said mortgage entered in these folios, and to substitute therefor two certificates of title, to the same lands respectively, in the name of the plain- tiff ; (3) to order the defendants Mclntyre to pay to the phiintilT the costs of suit in both courts below ; (4) to or der the defendant Charles James Cresswell to pay to tlie defendant Richard Gibbs his costs in those courts, and here, and also to pay to the defendants Mclntyre, all such costs, either incurred by them, or paid by them to the plaintiff as hereby provided. The defendants Mcln tyre must pay to the plaintiff, Mrs. Messer, her costs of this appeal. Solicitors for tho appellant :— Freshfields & Williama. Solicitors for respondent Messer :— St. Barbe, Sladen & WInjr. .*(>llnnt'H prtMlccoHNor liy il in MiiWt iivtT hJH Iniii), and aiontf tlu> iMiundury whicli dividol land ri'tainiHl by iiini from land conveyed to the reHpoudeutii' predvoeaaor, the uppellunt pleaded that it u:>d lieen abandoned : — Held— Thttt abandonment being a qucHtion of intention, non- imcr by the roHpondeiitH, coupled with user by the nppelhint for fnrin purpoHCH, of {tortions of land, Nuliject to the eaHeinent, when the (>HHt>nient was not r<>4|uired, could not prove an abandonment of the entire riKht, and were inconcluHlve to prove an abandonment of iHtrtiona thereof : Held, that the omiHsiou on the appellant'u and reHpondentH' ) and from a judpfment entered for the respondenta iu pursuance thereof by Williams, J. (Dec. 18, 1889), The facts are stated in the judgment of tlieir Lord- Hhips . Finlay, Q.C, and Tindal AtkiiiHon. for the appellant, contended that on the evidence the right of way claimed waH not proved to exist on the parcel of land in dispute. Even if the easement is held to have been created, it has been extinguished by abandonment, and by various acis of the respondents and their predecessors in title. The respondents' rights, moreover, are concluded by the cer- tificates of title respectively issued to them and to the appellant under the Transfer of Land Statute, both of Present :— Lord Hobhouse, Lord Macnaghten, Lord Hannen, Lord Shand, Sir Richard Couch, and Sir Edward Fry. 14 TohHENS CASKS. wliirli ai'(> Hllriil iiH to tlu> till<*);(>(l (>iiM4*iii(>iit ; wli(>r«>aM, if [*H(.'t] (Fh' (MiHtMiicnt hiui ronliiiii(>«l t«» cxiMt at tlii> date of tlH>Hi> coi'litlciitcH It oii^lit to liiivc Imm'Ii, uucl woiild liiivc iM't'n, IIktoIii. H«'»» Him'm. 47, 4!>, ^^) «f iiiiiiiIhm' :iOI to Aft 4L' Vk. No. r.IO, iiimI 41) VIr. No. H72, h. 41. Ueffn'iict' wjiH made lu Htolt v. Hliliv of Eltliuiii ; ' Hmall V. (>l(>ii.=' W. Oraliani (with him Sir Ilonuv Davov Q.C), for (li(> rcHpoiidcntH, roiit«>nd<>d tliat tlicir title to the I'iKhf of way wuH eHtalilltihed hy the evidence. ItM poHitlon anil the poMltloi) of the Kcoimd over whieh Hueh ri^ht of way exlHted svaH deteriniiicti t»y loii^ iiHer lhert>of by the re HpondeiitH and their predeeeHHortt In title. Tlie rertitlcateM of title, at leaHt, nhowed the iMiundarieB of the landH re spectlvely belonKinf; to either party. The appellant, therefore, could not diHpute that the poHitlon of the way claimed by the respondent h waH on their wostern boun- dary and on liiH eastern. Thouf^h the certitlcates were silent OH to the ri^ht claimed and the incumbrance iia- poBed, there was nothing in the Transfer of Land Sta- tute and its amending Acts to bar or extinguish the re- Hpoudertt)' claim, or to render the silence of the cerlill- eates conclusive on the subject. The way was never made os a road. Though there was evidence that the respondents had not in earlier years imed the way, that was because there was no necessity to use it. On rare occasions, when its use was required, it was not abandoned. Since 1875 there had been open user in assertion of right. The evidence entirely failed to prove any possession or enjoyment by the appellant, adverse to such user, or any intention on the part of the respondents to abandon their claim. ^>>andonnient is a question of intention, to be d-'cid' i on ui. particular facts. See Crossley & Sons. ^ ,t v. Lighrowler.'' Atkinson replied. The judgment of their Loruf^liips ^^ as delivered by :— 1 2 Vic. L. R. (L.) 154. 2 6 Vic. L. R. (L.) 98. 8 L. R. 8 Eq. 279 ; 8. C. 3 Ch. 478. JAMil:i V. aTKVKysttX. 15 HIU KhWAItl) FHY :— Tlw n'Mpomh'iilM an' tlw owihth nnd onu|>l«»ri» of a pUm'«' of land, part uf a (^rowii ^niiil, por ti<»n No. 1, ill th(> pariMli of [*HU] lvr<>ltMiii ii(lant, Ih tlic ouiHT of a plrcc of land adjoining; tlir |)laiiititT'M land to the wcHt, which waM Included In the Hiiiiic <7n)wii f^rant. The action wan bnnij^ht to asHcrl u v\ii}\t to a wa.v aloiif; tlu' weHtorn Hide of the boundary, which dIvldeH the laiidH uf the litigant parties. The Trown );i'r. Tli(> land granted wiih bounded un the houIIi l»y the Varra Yarru river; on the weHt by n creek known iis harebin creek; on the north by a section line, dividing piU'tioii \o. 1 from portion No. li; and on the ea«t by a Hiiiiilar lino dividing portion No. 1 from jiortion No. 2. Hy ind(>ntur<>H of lease and release, bearing date re- Hpectively the 7th and Htli of June, 1831), the Orown j,'iiiiite«», Thomas Walker, conveyed to (leorj?e Bruns- wick Smyth, the predecessor in title of the plaintiff, u part of the same portion No. 1. It was described as bounded on the east by the original eastern luMindary or this portion, being a line commenclni; at the Yarra Yorra river, and running 132 chains in a northerly direction; on tlio north by the marked sectional line bearing west U!) chains from the north-eastern point; on the west by a line of road, 1 chain in width, " the use of which," says the release, " is hereby also released and conveyed," and bearing south from the south-western point to the Yarra Yarra river; and on the south by that river. The deed further describes the land as " containing by admeasure- ment in or about 374^ acres, be the same more or less." Then follows a grant of the road before mentioned, in these words: "anu a right of road or way, 1 chain in breadth, in, through, and out of the same, and commenc- ing at or about the north-western point of the said por- tion of land hereby released, or intended so to be, and 10 TORREys CASES. ninniii^' in ti 8outhfi-l.v directiou to the Ynrra Yarra river." Tlie plan on tlie deed, wliieli iH referred to in tlu* tyrants aH containing;; a more particular description and delineation of the property {^ranted, shows distinctly a road leading from the Yarra Yarra river to [•l(i5] the north-west point of the land conveyed, along the west- ern boundary of that land, but on the land retained by the vendor, Thomas Walker. On the plan the road i- marked " reserved road," which is, no doubt, inappro- priate language ; and the words " in, th'oug, and out of the same," contained in the description of the road in the release, are not very intelligible ; but no doubt exists in their Lordships' minds as to the effect of the deed as a grant by Walker to Smyth of a right of road over the land retained by Walker along its eastern boundary. It should be added that the release further reserved to Walker a right of way across the land released, in a direction east and west ; this way was subsequently dedicated to the public, and is known as the Lower Heidelberg Road. The plaintiffs claim under Smyth, the grantee of the right of way ; the defendant claims under Walker, the grantor. It is the common case of both parties that, at the date of the release of 1839, there was no fence existing between the land conveyed to Smyth and the land re- tained by V^ Iker. When this action was begun in the year 1888, and when the trial took place, the condition of the proper- ties was as follows : They were intersected by several public roads ; first, beginning towards the south by the Lower Heidelberg Road, running in a general east and west direction along the line of the way reserved by the release of' 1839 ; next, by the Melbourne and Heidelberg Railway, running from S.W. to N.E.; next, by the upper Heidelberg Road, having a general direction of S.W. to N.E.; and, lastly, by a road to Eltham with a somewhat more northerly trend ; the northern boundary of the plot JAXfES V. STKVENSoy. 17 wjiH then Hklrted by a public I' ; that in like manner the private road between the Low«*r Heidelbertr and the Elthani public roads runs alon^ the side of this Wooden fence ; that no le^al origin can be shown to this road, except the grant of a right of way contained in the same deed, and that the possession and enjoyment ol' the lands of the plaintiffs and defendants are, at the present time, and have probably since 1839, or v«'ry soon after, been determined and regulated by the existing fence. In such circumstances there arises, in the judrtain<'d by the reh'ase of 183!), is not rebutted, and consequiMitly tln'y are of opinion that the way claimed by the plaintiffs is alon^ the strip of land subjected to the easeuwut by that deed. It has, in the next place, been contended at the bar, that the y\\*\\\ of way has been abandoned. This is a question of intention to b<* d mad to KItham, when the way was not wanted for tme, wonid have !»een an unreasonable act, the omission of which cannot l»e (tonstrutMl as the expression of an intention to abandon the rij^lit of way. Nor is tlie occupation for agricultural purposes of the strips of land subject to the (>aseuient, when the easement was not w;inted, in the opinion of their Lordships, a conclusiv*' circum- stance. It is worthy of notice, in reference to this ques tion of abandonment, that ever sin«e the year 1S75 ^he pl'iintiffs have distin«tly asserted their right to the way wliich tliey now claim, and if in the eailier period tliore is no evidence of such assertion, it must n(»t be forgotten that it is one thing not to assert an intention to use a way and another thing to assert an intention to aban don it. Lastly, a contention was raised by the defendant, based upon the provisions of the Transfer of Land Sta- tute. On the 27th of March, 1886, two certificates of title under that statute were issued to the defendant in re spect of portions of his land in question, and contained no notice of any right of way over any part of this land. On the 5th of June, 1888, two certificates of title were isued to the plaintiffs, which stated their right [•UiO] ovei* the private road between the Lower Heidelberg and Eltliam Koads, but were silent as to any rights of way to the north and south of this |)rivate road. It is contended that the legal effect of these certificates was to extinguish the plaintiffs' right of way, if it ever ex isted. This contention is, in their Lordships' judgment, untenable. The 40th section of the Transfer of Land Statute provides that land included in any certificate of title shall be deemed to be subject to any easement subsisting over it. The subsequent legislation on the subject has not, in their Lordships' judgment, inter fered with this provision. The Amending Act, No. 610. by section 2, makes a certificate of title, which certifies that the person named therein is entitled to an east- ment, conclusive evidence that he is so entitled ; but it does not make such certificate the onlv evidence ndmis JAMBS V. STEVENHON. n sibh*. Tlu' 4lHf Hcclioii of tin* milmrqucnt aiiiondinu Aft, X<». ^<7l^ iMMpiin'H tin* ?<'j;iMtnir to HiK'rif.v upon th«* <«MMifi(jit«' jiH an uuunihrana8ein(>nt uh an ineunibr- ance on the certifleate of the Hervient tenement under this provision, would not relieve the servient tenement of its liability." In like manner the omisKion of the registrar to state on the certitieates granted to the plaintitfg the existence of the rights of way they ehiim is no bar to that elaim. These observations dispose of all the points i>re- sented to their Lordships at the bar, and for the reasons given they will humbly advise Her Majesty that tliis a]>peal be dismissed with costs. Sdlicitui'H for nitpolliint : — Crawfonl iV ('li«'«t*'r. Sclicitur for respoiiduiits : - J. Ilurwood. PiiivY Council* 1890.] [L. R. 15 A. C. 195. MANNING Appellant. AND THE COMMISSIONER OP^ TITLES, Respondent. On appeal from the Supreme Court of Western Aus- tralia. Imw of Wimtern Australia — Transfer of Land Act, 1874, ss. 19, 21, 1:^0 — Almence of Careal — Power of Connnisniomr to refuse liegistration. Hold — That ncrorcliiur to tho truo (>oiiKtniotioii of S«'C8. 19 and 21 of the Transfer of Land Act, 1874, thi' c-onuniHsioner \» not bound to r^'KiBter title merely by reason of the issue of the prescribed uotices and the non-appearance of a caveat. Such notices may produce information, and the commissioner, in consequence thereof * Present : — Lord Watson, Lord Hobhouse, Lord Macnaghten, Lord Morris, and Sir Barnes Peacock. 22 To It HENS CASES. or of rocdiiHltlerntiuii, Iiuh ii iliMrrotiou to refiiHc to rt>Kirttt>r ; Hiil)j«><-t to tli«> opinion of the Supreiuc Court under Sec. 120. ApiH'iil fi'oin n jud^iM(>nt of the Kiipivnu' Oouit (I )«•«•. h\, ISJST), on a vhhv Htatcd l»y i\w rcHpoudciit uiidt'i* hit tiou 12 of tln» Transf8tion for deiigion in the appeal wan. whether the reupoudent had power ander the Aet of 1X74, aft«'r he han intimated to an applicant for rvp^ln tration under that Act that his title is fairly made oui and aft(?r tlie advertisements required by the Act havi- been issued, and when no caveat forbiddiu}>: rej»istia tion has been lodjyed, to reject the application anlicant to be rejjjistered as tlic owner should be conceded, it must be c«mceded on ;i very rigid and, indeed, strained construction of section 1- ; that to place the Court in a position to do juslic;- between all parties every particle of documentar. evidence in possession of the respondent or the appel Innl should be produced to the Court, and that tlie lasr should be stated not merely under section 12, but under se«'tion 120 ; that if the appellant's application were bona tide, documentary evidence would be i)rodncei! to support it ; if it were malft fide, then so much th ■ greater would be the necessity for such production, an r(>rtitlciit«> the nioiiifiit ttfWr i( liati iHHiuMl, and ghould, tlu'ii?foie, be availaMe for tlie Haiiie pnr|Nme before it had isHUed — that the An wais a weapon of defenee, not of offenee, and niUMt not by an adherence to tlie wordM and rejection of its sub- «tanre l»e used to deprive a proprietor of hi« ri);htM. an obtained by fraud, and he was inclined to doubt whether, t'ven upon that ground, he could alter his decision. K<»wlands, Q.<.'., and Cowell, for the appellant, con- tended that the commissioner's power to reject an application and refuse registration can only be exercised in the first instance. After he has ruled that the ap- plicant's title is prima facie a good one, and has directed the publication of notices, an adverse decision upon the applicant's title can only be come to by the Court on a contestation duly raised by a caveator en- tering an opposition as a responsible litigant. Failing a caveat, the order, which originally has the eflfe<'t of an order nisi, becomes an absolute order, which can only be set aside on a sufllcient case being made to the satis- faction of the Court. The <'ase was brought on by con- sent under section 12, and raised the question of the power of the commissioner to act as stated in the 8i)ecial ca«e. The act was exiimined to shew that it was the intention of the legislature that, as soon as a 24 TORRENS VASES. ♦ prima fiirii* rjiw of tith- bv ndvcrHc poMHCHHiou wiih iiiiMic out, tlir pror(>(liir<> pithi-iUmmI fur diHpiitiri); it wiim h.v lilipition ill opi'ii Toiii't, founded on a csivtMit of din-rt application, under wlilrli tlie Court could exer- ciKc itH jurisdiction, and licar and dcteriiiiut* tlic queH- lion aH a nialter in litigation before it. The cominiB- Hioner could not liy entertaining; appIicatioiiM an<] liHteniii^ to information or evidenc<> Ix'liind the back of the original applicant, make an order in prejudice of IiIh prima facie title, on the face of which he had in ciirred the expeuHe of publication and other costH impoHed by the Act. Uij;by, (^.C, and .1. li. W«»od, for the respondent, con- tend<>d that lie had never llnall.v declared hiu approval of the appellant 'h title. There was nothing in the Act to require him tinally to [*VM] approve the title before «lirer(ii'^ advertiHenientH and iioti^-eH to be publiHlied Such publication Im ii<» evidence ot the title having been approved. There wan nothing;; in the Act to d«'prive the cominiHsioner of the power and duty jjiven uv im- plied by the Act to make inve8ti;;ation at any time before final order of re;;iHtration. The provision in the A«t for llu* lodjiiii^ of a caveat by the repstrar is directory SupienM- ronrt, jmljfniont hits 1mm II nivni ill liiH favour. Tlu* Coiiil, ronHiHiin^ of two jtidp'H, wiiM (lividtMl in opinion, and tlu> jiulKiiicnt i>t in iirroidancc Willi tlic opinion of tin* Cliicf JiiHric**. Tin* (pioHlion tiiinH on tlu' ctmHtiurtltm of tho lOtli and -MmI wrti^uiH of (in* Art. wliirli it will he convcnieul ln'i't' to H«'t out: — " \\\. If it Hliall appear to the roiiiinisHioner that any siirli tiMiiH.K'tion aH aforeHaid Iuih heeii i'<>KiHtei'ed, and lliat all eiicnnihraiireH affeetin^ the land (exeeplin^Mueh iiH iite liertMiuifler mentioned aH not reipiirinf^Hpeeial noti llcationi have hereuf sliall not liave eonsented to the applieation) may be sperilied in the certitlcate of title, and ('ontinu(> out- slandin^', the commiMsioner shall dirert notice of tin- iipplication to he [*1!MIJ advertised once at least, in on<' newspaper pnhlished in the city of Perth, or tirculatinj; ill the neip;lihorhood of the land, and to he st rved on any persons named hy him, and shall appoint a time, not l«'ss tlian fourteen ; tlie land under the operation of this Act. "21. If before tlie e\piratii'i><| by IiIm Holicilors. On thf Hih of Anuiixt tl)i> roniniiNHionci- Ht)it«> l!4tli of OrtobtT I lie roinniiMMiontM' forwarded to tlM> NoMcitorH for tlic a|>|>lirant a di'claration and ctM tain d(>|HHltioiiK on oalli uliicli lie had taken without notice to the applininl, and which tended to throw donbl on the applh'ant'M poHHeHMioii." On the 'JMtli of Ortober the eoniiiiiHHioner formally tioMtled to the xolii'ltors that the applieation was re jeeted. The coin-He then taken by the Molicitoi-H and the coiiiniiHHioner Ih (Iiiih Htaled in the Hpecial ciiHe. "7. The applicaiit'H Holicitoi-H consider the rejei'tlon Ih beyond the power of the rative upon the re^iHtrar, iiMder S<'c. 21 and the };eneral Hcope of the Act, to brlnR the land under the Ad by rejtiHteriii); the same in the name of tlie applicant. " H. A formal application to the re};iHtrar to perform IiIh duty in thin respect ban bei'ii made, but lie, relyint; upon the fact 'that the application had been rejected liy the commiHHioiier, who wan not prepared to sijjn ^i cer tiflcale of title." refuned to rej^ister." rpoii these factn the conimiHHioner gtuted the Hpecial ease, in which Mannin^^'K golicitorH concurred, and which wan heard with the reniilt above mentioned. Nothing wa8 stated to show the nature of Mannin};'H title except that it rested on poHsesnion, or the nature of the evi dence apiinHt it except that it brought the allef^ation of p08H(>Hsioii into doubt. The next question raiMed by the case, and argued in the Supreme Court and here, is whether on the 8th of AiigUHt. 1S87, the commiBgioner itAN^ityu e. THK lUtMMISSInSKR Of riTLKs. 27 iiiiil IIm' irKiHirai- iHMiiiiu' iiH-i'i' iiiii«-|iiiii>M for n'^ixlniiitMi in riiH<' no rav«-al hIkmiIiI Ih> lod^tMi. It iiiiMr Ih> ii«liiiilt(Ml fliiii tin' Hdlct litiM-al cunHtnir- tioii of (he M\v. iliit |Im> wliole purvirw of the Ak('«i at. \V<> find Unit tli«> roniniiHHioncr iM to Im» a lawvt'i* ut hvww yviwn' Htandin^ and prartire. and that, ainonffHt otliiM* tliin^H, In* Ih to invrHii|;at«' ap plirationx for hrin^in^; tlu' land nndrr llu' proviHionH uf tlii> Act. And it iH vcr.v important to »)(>«• wliat W the lan^iiaKt' of tlic Art witli rcpird to thi* applicationM which (h«' coniniiHHioncr iH ('Xpcctcd to invcNti^atc S(M-. 17 HavH that land alicnatiMl in fer by the Oown h(>for(> tlu' Alt may be l>rou};ht nndt'r the op<>riUion of tho Art by an application made liy, amonK other per i«t)nH, the p<>rHon claindn^ to be owner of the foo Himpli' ••ItluM- at law or in equity. Hec. IS nayH that the r« uis- tiar Hhall Hubmil the application to the commisHioiiiM* for hiH direction. Tlcn Seen. IS and 1') ^o on to ileal with propertieH which are toiind (litTeri'iilly ci;->iiiii- >1iinced. If the coiiiiniHHioner tindH tliat no transaction .ifTect in:; the land Iiuh been re;:isiered under any general Act. Sec. 1*< says tliat: "he shall direct the r»'}{islr:ir lo brln^ the land under the ['^Ol] operation of this Act by re- {{iHterinK a ci-rtiticate of title." Accordinj; to the literal force of Seis. 17 and IS, amy person may appear claiin- inj? to lu' the owner of land alienated in fee by tlie Crown, and if tlieri' has been no previous rej^istra- tion th(< ciunmissioner has absolutely nothing to do but to direct the re^jistrar to enter a certificate of title. It is felt by all that such a conclusion is irrational, and the appellant's counsel do not contend for it. They admit liial the ciunmissioner must have some power of In- quiry-, and some discretion to accept or reject an applica- tion. But they cannot point to any words of the Act which expresitly confer those powers upon him. As renfards Sec. 18, then, it is not disputed that the coniinissioner is an official bound to exercise his Intel- liu;ence. and not a mere man hine, as the literal force of 2» TVkMMMH CAaAH. tlif v^ordM would nnikf liiiii. Now wIm'II wi* htivt* oiirc IMK ll« niiiiiot it'fimi' to n-iid It Into Hrc. IM, iiiid llicii It Im for ilioHc who IiihInI on IiIm iiiiTlianical artioii to mIiow at what poiiil IiIm dlHcicllon KinH. It Ih not riMilt'iidcd that I hi- Art iiiiyw'li«'i-<> dcfliirH thiM |»xr4>pt ho far i\h h\u-\\ an ordrr ii u.v Ih> iinplird l)V iIm' dircriloii to the rc^flHtrar in H«>r. '2\. TIh' apprllaiil'M roiniHi'l conlrnd that In a « iiMc falling within Sim. I*.I, tin* diMrii>tion of tin* «oninil»«Hion«'r Ih at an rnd wIhmi In* haw di'ildrd (o adviMtlHi* and him-vi* no tliTH. Ity tlial tiini*. thfv ar^tn*, hi* ninnt Im> takrn to havi* roniplftiMl IiIh Invi'HtlpitionH, and, in fart. In thlK niHi* III' did intimate to tlii' appllrant'H HoIlritorM that thi> titlf had hi'i'n fairly niadi' out. Itiit it appiMirn to their f^ordHliipH that the inveKtIpilionH rannot he roniplete iinlll it Ih seen what the notlien prodiue. They may not neieHHarily produee raveatH, for tlioMe ran only he lodp'd by perxouH nialdn^ rlainiH on their own behalf, but that may produre information Hhowin); that ri'^is iration of the applirant would not be ri^ht. If a certi- llrate of tille is isHiied In error, the rmiimlHHloner may, under Sec. 117. take HtepH to raniel It. SuppnHintr( then. I halt before certitliale, the cominiHHioner finilH, either from freKli infornnitlon ov on reronHideration, that he Ik in error, what \h he to do ? The [•I'OL*] appellant's coun- sel contend that, if he has iHHued notieeH and there \h no raveat. he muHt ii'wo the eertlHiate and then take Hteps to laniel it. It neems to their LnrdHhipH that Huch a I'ourHe is not rational and is not obligatory uMd(>r the Art, but that the proper courHe in Hiich a case is to refuHe the eertifleate. The applirant is not without remedy in such a ease. If the oommiggioner exereiseti his diMcretion wrongfally or erroneously, the applieant may, under S tlioron;;lilv fXittiiiiHMl. Ilcii' ilir iipitllniiil Iiiih not I'linM'll l«t lakr tlijll iOII|-M«', hill IlilH |Mrrr|-|«*«| |tt liiitiMi llml IIh* *oiiiiiiii«MiuiiiT iH ImmiimI, Itv lli<> Ihhii*' of ii))tir«>M oil I III' Hill ol OciotHM', anil by ili<> iioii a|»|ifariiii<'<' of any tavt'at, to n'Kinti'i- liif claliii of till«>. Ah tiM> a|i|)ll<'iiiil failM ill tliaf ('(iiiifiilioii, iliiM a|i|H>al iiiiiMt Im> ilir4iiiiKMii- llliiiit :— W. II. ll<>rlM>rt. Siilii'itont fitr ri'H|Ntn)|<>iit :— Kiitloii ik Oiniiiiiiicy. I'mvv {'oisrii.,' 1HH:1.] IL H. H A. C. :n I. THOMAS i:i)\VAKI) M< KLLlSTIili and nriiKus. DeftMniuutN. AND WIM.IAM HKJOS AMI oTHKKs, IMaintiHs. On appi'al from the Suprome Court of South AuHtralia. .S'iii jHiim an I'lijuituhli' rujlit. Allluniuh uii iiiir«>KiHti>r«Ml ilcod la not «>fr)M>tiinl to iiumm hii.v ihtereHt In liUHi iiinler 8o<'. HO of Att 22 of 1N((1, yet tt Ih effectual to piiHM an «><|uitu>>le rixht to Het iiHide a certitioutu of title relatliitr tlit>r<>t(> wiilch hail been obtuineil hy fraiiil. App«*al from an order of tin' Supn'nn' Court (July 27. 1SH0) (liHuiiHttin}; an appeal from Owynn*', .F., Prim- ary .IimIk*' in Rqully (Deo. 10. IHTJM. The factH of the (iLse appear in the judgment of their LordMhiptt. TI. Matthews, Q.C. and Stran^wavH, for the app<>llantH. Davey, (i.e., and Hull, for the r(>HpondentH, were" not ••ailed on. The judgment of their LordnhlpH was delivered by: SIR BARNES I'RAf'OCK :— TliiH in an ap]>eal from a decree of the Supreme Court of South AuHtralia which affirmed the decree of the •Pregeiit :— Ijord Blackburn, Sir BarneH Peacock, Sir Robert P. Collier, Sir Richard Couch, and Sir Arthur llobhouse. 80 TORHK/fS CASES. I'l'inijirv .IiMl};r of (li«' Haiiu> Court, in Kiiuitv, in ii hmiI in wliich William Hig^'H and otlnTH were tlu* |ilaintifTs and TlioniMH lOdwaid McElliHfcr and otluMH wnv tlic dcfcndanfH. Tlu* drci'cr of tin' flrHt Conrt waw that Kd ward .M<-Kllist('i', under whom the defendants <-laim, not an purchasers or for valuable ronHidi'ratiiui, heeanie rejfistered [•;{15] proprietor of the all(»tnient Xo. 2'.\, through fraud within the meaning of the I{eal l*r4»pert,v iVet, 18(il, and that the eertifi«nteH of the title repisten'd in respe<;t of that lot " wer<' and are fraudulent and void as against (i(orp> ^^:ll■^lll(('(i b,v iIh' rvidt'iMM'. riiittiric obtained a jud^niriit in eject- tiH'iit apiiiist MrKlliHtei-. Her. VM of the Colonial A«'t '12 of IS<;|. cnactH that ** npon the recoviM'.y of any land, esiale or inti'icHt, \\\ any piorei'din^ at hiw or in eipiity fnun the iterson reyfiwtered an pro[>iietoi> thereof, it nhali he lawful for the «'onrt oi- jndj^e, in any case in which the proceeding; iw not lu'j'ein before expiOHHly barred, to direct the Kep;iHtrar (ieneral to cancel any «'ertitlcate of tifh' oi- olher [•J'.HiJ inHtrnnient or any entry or nieinor- iiil in the register book relating; to hiicIi land, anri to siihslilnte such certificate of title oi- entry aw the cir- ciiiii Uiinces of the case may recpiire; and the Ke^ristrar- (Icneral shall tfive elTect to such order." The First Court, as already slated, upon the recovery in <'je<'tnient. or- deretl the certifh-ate of title to McKllister as to lot No. :,':{. with the <'.\ception of .MtKew's piece, to be cancelled. It was contended on the |iart (»f the appellants tiiat the deeds under which the plaintiffs derived title from tiuthrie, not having Ihkmi repstered in pursuance of Hec. :{!> of the Act to which allusion has already been made, passed no interest in the hinds. That section enacts that "no instrument shall be etTectual to ])ass any estate or interest in amy land under the provisions of this Act, or to H'nder such land liable as security for the payment of money, but upcm the rejjistration of any instrumenr in manner hereinbefore prescribed ihe estate or interest specified in such instrument shall pass." Their Lord- sliips are of opinion that althou}<;h the deed di minW or intert'st in qiu'H tioii. U or WHS vj-jjistcrtMl." Hut the niMr of fraud in ox n'pU'd. niid fraud Iuih Im'cu found by liotli thf courtM upon jIm' <'vi(iuitable ri;j;ht to rely upon which luis been trans- ferred to the pr«'s«Mit plaintitTs, they had a righ' r<> roine into Court and ask to have the certificate of M<'? K'ister set aside upon the ground of fraud ; and the (^onrts below, iuiving found fraud, were rij^lit in d(«creein}i; for the plaintiffs that the certificate should be set aside, A further objj'ction was made by the learn<'d counsel for the appellants to the form of decree, which orders the certiflcsites of title to be delivered up to be can celled and to be cancelled accordinjrly, but does not i.rder the Rejfistrar-General to substitute such certifl • ate of title or entry as the circumstances of the case inijjht require. Hoc. 137 says, " T^pon the recovery of any land, estate, or interest, by any j)ro<'eeding at law or in equity from the person registered as proprietor thereof, it shall be lawful for the Court or Judge, in anv case in which such pro«eeding is not h<'reinbefore ex pressly barred, to direct the Registrar-deneral to cancel any certificate of title or other instrument, or any entry or memorial in the register book relating to such land, and to substitute such certificate of title or entry as the iircumstances of the case may require, and the Regis tiar-CJeneral shall give effect to such order." If when M'ELLlSTfm V. hI(,(,'S. 3.*J Hi<* rti<)ii w;i« tlirii iiuulc, nor w;is it nijuh' on tln' appeal. TIhmi* Lordntiips, lluMrfoic. think that it is now too hit«« for tin* appellants t(» object to the form of the islrart lia:it. 'in;': rxrn:!) maxd ln-ilvxi) and nvxi) or IIOI'K COM pax V, KK.nsrciiKi) (ri.iiuLiti) AXJ> LAlvltlLAXI). (Defeu'Iaut). Kospondcnts. ( '(>iis(jl ul. ! i',:U A ii[j! Court of Victoi'ia. Miiit.i.iiiitr iiml Mortijdiii'c- Deny,' fur llciln)ijiii:>n ithirr Hi/ ii'\ji,a,-ii,il tlif Moittfdiir III! i iliil i'.nt pn,'! tn r^'di'im — lAuliilitij I'f Mi, et xrij. Altlimi'ih a in'irtir;i;r'>r Im tinl ciititlcil f.> ;i doiTcc for rcl'inp ti'iii on a hill wliicli iin|)i':ii'!ii's Ifn' inorty;!is;i' stM-iiridcs ami conlains 1:0 ;.i-.i,\«'i- lor rod-aiptiuii ; yet siicli nil<- tlo, .s iio( ai>i>l,. w.'i.'if i\\y *I'r('S('nt .-—Sir Jniiu'H W. <'olvil!f. Sir BariH's I't'ixoik. Sir Mo!it:iuuo E. Smith, ami Sir Itohcrt P. Collier. II tmu.cam.— ;J 34 TORRE NS CAHEfi. \w\w dimloM'il by the pltMitliiiKH iir*> not iiuroly inortKiit;)- or iio luortKiiue, but wli(*tlit>r tho il«>fiMidaiit by iiifaua of hiM uctM Hub- M(M)iii-iit to thi- iniiM^ncluMl iiiortKaK*' liail otiiHiHl tu b<> murtgaKt'c lunl had li«>(oiii«> abHoliitt- ou-ni>r, aii)l alHo whrthor tht> iiiortKaK'**''* niiviiiM't'H ou tUu fu«)tiiiK of th«> inortirtiiTf liati not b<>oti nion? than sntisticd by IiIh roccipts, the bill iirayhiK for u.\i uci-ount, and ofTiT- ing tu allow to the uiurtgaKcc till JuHt oroditM. A imnliaht' by a inortKaKco (»f luortKaKcd property, Hold cithi')' (imlir the powiT of Hale or in «>xiMUtioii of a dc*-n'«' aKainnt th<- niit\v«M>n th«* inortKUKt'c ami the dirtM'torHt docs not op«>rat<> to vest an almolutt* tltlt> in the niort;,'a «».'<•. \Vhtr«' the niort;ra»ror is a rt'jristfD'd owner of Icawdwdd estate in Vietoria (under 'I'ransfer of Land Statute), and the uiortKaw in ni!ide and reuistered under Sec. K\ and following Hectlons, ho fhat th«- Kn\y way in whiidi the nnirtpufee can extiiiKninh the rlKht • of the nitirtifii^iir Is by foreclosure under '.W Vic. No, JilT, or sale under Sees. S4, S,'. and 87 of the Transfer of Land Statute ; then whether a sale of such leanehold estate is nuido by the mortgagee under the statutoiy power of sale, or as absolute owner, no interest tin-rein passes ti the purchaser until reiiistration ; see ss. 42 and ST. A lunrt^auec is accountable, not merely for his nrtual receipts whilst in possession of the nntrtKajred property, but also for what- ever is received h} 1*392] those to whom he transfers iKtssession un- der an arranHenient inoperative to transfer title, and in derogation of the rij'hts of the mortgagor, A niortyawt'e in pra>r<'d property, ami is then found t.i have been, at the date of siut, overpaid as mortmiKee will not only not be allowcil his costs of sidt but may have costs given against him. Ai»i«'sils from twt) oidcrH of the Sniu-eme Court of Virtoiia (Mjt.v :5, 1S77. and Sept. :50, 1S7S). Tilt' qnoslitms dccidod in tluw nppoals are as to the v\\i\\\ t>f tho respondent eonipttny. nnder the circ-nm stances stated in their Lordships' jiido;nient, to impoacli a sah* made to the appellant bjtnk, and to redeem their mortjia^'e ; and also as to the terms upon which such redemption should l)e allowed. The material faets of the ease out of which the Buit arose are stated in tlx' judpnent of their Lordships. F(.r reports of the proceedinjjs in the Courts below. j*ee li Vi.-. L.II. Eq. 20(i: Ibid. vol. III. r.l: Ibid. vol. IV. 17ti. KATIoSAL /t.iXK i. VXITtUt HA Nit ly HAM). 35 (Ml llu' lOlli Mnv, 1S7s|ionlliiiit aini Wil- liiiiii Ii)il«*liiii(l. wliirli )ift«'i' iiwiitioniii;^ tlM> iiiortpijfes of the '2.'Mi\ of Fehnunv uikI the lllli of Mjiirh, 1S7U. iiioi-c iMii'linilailv (l«>snilM'«l in llirir l.orilHlii|iM' jiid};- incut, (ontaiiM'u allr^atioiiH lo ilic following cHVct : — (I'ar. lO.i That no money was advained by tin* bank lo the ronip.iiiy on (he «'X«Miilion of the niorlpip's; thai tlu- seal of I hi' bank was allarht'd to (Iiohc H('<-iiritii'K rolliisiNcly and wilhoiil lawful antlM»iily, and that in fait Ihoy were sccniilicH for foiinci- advanrcs only. (I'ais. II to l.~.) That in .Inly. 1S74, the directoiH of III*- coinpiiny williont juilh«>ri(y airan^ed with the bank for a sale by tlio sln*rifl" of the pi-o|n'i-ly conipi'iscd in those serniitles under a tl. fa.: that a eloiU of the Holici- toi- of the bank, as indorsi-c of a pi-oniissory note of the roinpany. bron^ht an aetion on the note against the • (•iiipany ; tinit the directors allowc. all the interests of the new company '.\iis sold nnder a ti. fa. to one .lidin Hardy, who ;:s-*i|u;ued ; n ills intei-est to the bank. 'M\ ToKltKSs t'.\-Ks. {\\\v. '.\\..) TliiM ill .\)i};uHt, ls7.*, the l»:ml\ (iix m!h»v • IIM'llliwIliMh SdIiI lllf |ll'0|M*l'(y to (ll«> IM'HjtUIHlt-lll hilk*- liiiid loi- £);.(iiiit, wliicli tlu* hill nlli'^«Ml lo be coiiHiilt'riiblv IcHs t!iiiii I III- v:ilii<>. (I*iir. .'Id.) Tliiit :il tli«' tilii*' liiik«'liili«l piil-«liiis«'il tlir pi'o|M'i'>.v lie Ii.-kI noliro of tin* s^-viTjil iiiiilttM-rt ili«>r«>in- iH'foff s<'| rurtli, iiiwl of III*' riylitH •►f tlu* i-csp:tiMl<'nt 4 oiiip.-iiiy. Atxl III)' !)ill Haimlit to Ki't :isi>]«> :m fi-Miidiilciit aiul Vi)i(l tlic itiiirliiis" liv till' liillik tliroiiyli rullihci'l. Its solicitor, of IIh' pi'opfrly in n'spoiiili'tit loiiipMiiy, aii tiio allowaac' of all siiitiH properly <'.\p<'nd*'d in working. The hill olTnod to allow to the appollant all jiiHl «'i'«'dlis but roiilaiiu'd no oll'i'i* to rodv'cni. Tho appellant hank, on the i:{tli <»f duly, isTtJ, tih-d nn answer, and llierehy stated that it advanced tlO.iMlo to the plaintitV eonipany on tli«' Ttli of Febniary, IS?:*, on i>s ;ii.'reeme:i( to >• -uiv thai sum hy iiioriy:a;;e. and a fui-ihei- sum of i;:5,(ti)0 on the lintli [*:'.iM| of Nov., !S7:!. denied all e(<'iuher, IsTU, Mr. .1 est ice M H \M> / V // lA/- ;{7 iiiMl lliiil III*' bank liiiil no till(> iiixici' llic *\\W ns a^NiiiMt thr rotii|>aiiv («> Itiii- till' t'li'iily of M'«l«'iii|>i inn : (.ri'imt llir Hillr lo Mi'SSIM. |)n\rv lt."ollirr'.'4 w.iA voi«l jis nviti'iMl till' nitnpnny ; (.'h Tinii llir hjiIc In the hnnk in L.vkc liitiil wiiH nnvvni-iiiiilt (I ns :i;;iiiiisl IJir iiiiii|)iin,v, hiii ns |ich\«'«>n the niiii|ian\ ntid Litki'hiiHl was valiii as tu tlii' planl ami niarliinn-v li-ansi'ciifd (li«T«>l)y, lint iml :m lo Ili«' mining Im-^i' : iiiiTlial IIm* liank hIiuiiI4lM <-f ;:old raised linni tli<> |(i«i|»<'ily li\ iln- rniicij Hind iiiil Mand ('oin|):;ii.\ iNu l/i:iliilit\ ), li\ Ilic liank ft-oni Iho null of h\'lnnai>. ISi'.". hy l.aki'land I'l-oin |li«' MMliofSrp Iciiilicr, 1S7.' ; iirriiiil III!' bank slmnld also In- i-li.ir;.'.'il willi Iln- diininnlinn in valin- of llic unniii'^ jtliMii n nd tiiiiihiin'ry sold to Lakeland; (><) An jk-coimii of wliii'Ii was due to llie l>ank. On Hie :5id of May. IS77. Hie full r.niil oideicd tlial tlie deeree should l»e varied hy striking' oiil I lirn-frnn till- .~t)i derlaiation and insei'lin^' in lie)i llieieMf :i di>- rliiialioii tbat ilie sale to l..ikelaiid hy Hie hank was viilid as lo Hie |»hinl and iiiiMliineiy liansferied tlieiehy. I'lit not as lo the niinin*,' leas" ; and also hy siiilvin;^ oiii the 7lli d.eelaralion and insei-tin;^ in lieu Ihereitf a derlaiation that H:e hank in takin;; Hie saiii ai-ct.'int sliidl he chaij^'ed with what hiil foi- ils wilfii! neL:rn;ence ;i!!d default \\onld lia\e heeii the elear p!«i(eeds of the sale of \\\{' plant and niaeliineiy ; and also with inleicsr on what hilt for siieh ne<4ii<;enee and del'anll woiihl iiiive heen the elear pfoeeeds of sinh sale ; and also with interest upon uhal hnt for sinh neyli<:enrr and •lefiinlt would lia\e heen the ehaf proceeds u\ tiie j;oid raised from Hie land. In pnrsnanee of this deci'ee the Master in I'lipiity re liirle«l on the Isl of .lime. |S7S, that on the lesnll of Hie ii<ii«>. On cxifptions tlhMl tlu' Huni of £(;,Sir» IIm. wjik rritithMl to hr (ln«> fioni «ln« bank to tin* conipan.v. On llic *Mh of August. \H's, on fmtlM'f ronsidfiiition i( wan onlcnMl l»y .MolcMwortli. •)., that tii(> hank an up fo th*' t'onipan.v th«> «pii«'t posscsHion of tlir hind ronipriscd in the mining' lcas«> of tli(> i>.*i||i of Or|oh«>r, ISCT, and (h< nioitpiy;*' of the lllh of .Maicli, is'.i, oi- ritln'i- of tlirni. and tli«' mines, shafts, and drifts Ivin^ nndei- tlx* sain«' : that, if nercssaiv, an injunction sliouhl he isu<>d to put tho phiintitVs in su«h possession : that the defendants respeetively should do sucli arts and execute sneh in stninients as niij;lit lie neeessai.v to ndease and eonvev to the eonipany all their respective titles and claims to the said lands and mines, to he prepaied at the com pany's expense, and that the hank should pay to tli<- company forthwith tlie said sum of l(»,S|.' lis., with inteiest thereon, at 7 per «"ent. per annum, from the :{lst of .March, ls7H. Mr. South;;ate, (2.<'., and Mr. <'o/.ens llairdy, for tin- apeilant hank : — It is entirely op]iosed to th<' practi<-e and rules of a <^)urt of Kipiity to make ii decree for redemptimi on ,i hill which does not pray for redemption. It is not suf licient that taking hill and answer to;;etlier it appears that tlie suit is in suhstsince one for red«'m])tion : the old rule is that a phiintilT coming to redeem must otT'T to redeem. If a mort;;a;;or admits a mort}j;a;>(' he can not tile a hill for any jmrpose without ott\*rin}; to r»' deem. Here the relief sou;;ht was wholly inconsistent with the ri^ilit of redemjition. Hef»'rence waH made te Inman v, Wearinj: ;' [*:{!»<►] Oordon v. ilorsfall :- Jolui son V. Feseiuneyei- :' ('renvei* .Mining; Cojiipany, Limited. V. Willyaiiis ; ' I'arkes v. .McKenna;"' (whicli was said ' .H n. v.. A- >^. .-".». 2 5 Mno. \\ r. 393, 409. 411, 421. ."125 H.iiv. S8. 96, iiinl on tipiM-al, :J I).- (J. \- .1. 13. ^ 35 li.'iiv. :jr.3. •■• L. 11. 10 (Ml. 96. 120. SATIOSAL HASK r. USITKh HAM> /.V ff.iMi .•if» • ' oViM' by flu' Toiirt Im'Iow, m«'«' :{ Vlcf. L. H. <;7, to iiiiv niliiihiirii ;'' llillinnl V. KittV ; ' liOiMloii iiimI <'hiirt«'ii'il lijitik v. K«'iii|ii'l»'r»' ; ' Tiotiylitoii V. ItiiikM ;' Mnifiiic/ v. ('ou|M'r ;'" PaikiuM«>ii lliiuliiiiv ;" KliH'li V. Hruwii ;'• WIIhoii II CIimt;'** X<'Ihoii v. Hootli ;'* DuiMtan v. I'atlfiMiiu CotliTell V. Stnittoii :"' Norton v. <'i»o|K'r Apiin, aHHiiiiiin^ that arruuntM oiiitht to liav«> bf*'ii «lii-*Mt(>d apiiiiHt tlit> )>ank, Htill the batik ouKlit not to liiivt' Im'cii cliarp'd fxc<>pt daring the pcriotl in wliii-li it waH itMcIf ill |>oHH«'HHioii of tilt' proiM'ity. It oii^lit not to liav«' Im'oii rliai'^cd as for wilful d»*fault oi- (itlnTu iHf (liiriiiK tin* p(>rio(l in which tli(> old ronipany and Lak«- liind w«T«* H'S|MM'tiv«'ly in poHm*Hsioii. At all rvriitH, ii llic hank \h to Im* hold liaMc for rrrciptw, ^'ithrr l>y tho ohi ronipany or Lakoland, it oii^lit also to ho rrrditod with nil monoyM cxpciidod by tlnMii rosprrtivt-ly in wofking (»f ; tho niiiio. It \\;ih fnthrr contt'iidiMl that ('iithlM'i't'M pnrchaHo of tin* tith of Auy;ust, 1S74, was a viilid pnrrhaHo, and ('Xtiny:uish<'d tho otjiiity of ic iiicrilM of a niiiHc ; 4'liii|Mll \. Vuv diiy ;" .\iiotin'.\ tJi'iH'iJil V. Hiilrlifr.'" [•:«»'! Mr. .IohImiii WilliiiiiM. (^('.. iiml Mr. .1. h. NN nod. for III)' |-fN|MIIM|l'lll riMllpilllV. No (It'ciNioti Idim Imtii riliil on llii* olhrr hIi1«> t<* 'li<> vtft'vi Hull II ('oiirt of ApiM-jil will M-r iis'.ilr a (!»•< •• • for l-<'4li>in|tll<>ii Hiiii|»l,\ iMi llir ^ritiiinl Mial llir |»l;iiiilin did iKtt i\s\i Tnr rf«lt'iii|iiii)h in l>ix l>ill. 'rif only niiiliMrity to tliat rir<'it is a ilirhiiii ol' honi KIiIlu'm in Mn.iit.r/, V. roo|M'r,-" wliltli ii \n Hiiltinitlril In not siiHIi "m m. rh<' caHfH riled on Ihr otlirr- hUU- are diKtiti}.'ni.4liaiil«- from Itlis, for lii't'c tlic liilj docs nillrli liiuir IImii i>. «-i; Id h< I Msidi' tlir inoi-t^a;;:rs as invalid. It st-clvs also. i>vcii Ir llir iMoi fju'ii}.'""* Ill"' lnld valid, lo set aside several lol- Iiisive ai raii;;eiii<'nts, and preleiided and tletitioiix sales Mil)se<|iienlly entered into. A inorlKa^ee wlio lias '.liiis eMdeavoin-ed to defraud liis deMov, and is slmuii, niii:(>- ovcr, on the evidence and .Mastei's report ti) Ikivc |i.>en mnsideiahly overpaid at the date of suit, cannot fail hack upon till' character of creditor and niorl;:ai:ee :iiid avail himself of a technical defence and heiii-tii which iiii(;ht have belon;;ed to him in that character. Kefer- enee was made to Incorporated Society v. liichai (Is.-' As re;;ards the hill of sale to Ciithlieil on tlie -tth of Aiijjiist, ls74. which folhnved the cMIH Mlllillliltfll Id lit ill\.lli«l ll« ll«'l\\(M>|| III! Iillllk iitnl tli«* tuinpiiiiv. III iii)\ I'iiii- IIS r«-;:;iitU iIh- l<*aH IiuUI. Scr Hirtimi S.'t of Hit- Hiliil Sliillllc lo |t|\11H jflv<'ll rlllirl' llliilrl- wrlion *• ' oi- Hcrlion S7>, \{v'i^*\\'i\V t.f Tiili'!* V. Pad iHun. \N liiiliM*!- liilf l.iiU LiimI tiiii^lll III' ill'lr to aHMi-!'| Ihf rulni'.ihv l!lll^l Ih< |t|:;f iI us far >iH |tuMsii)l«' ill I'll- r':iiiii' |i'.)s| Hitli' liml invn IiiImIi |>liin>: t>«iiiilli \. HaniHuii.-"' Ah ir;iiiiil.«* Hn- ro'-rrt hich- oT iIm- piin- < i|i|«> ••> in ill. -t' of Hlllr |tl-or«>i'tj*, (In- j|«*- Ih li^lit ill liuliliii;; tliiil llir iimrljau*' li"i >•> !!»• *i>iiiMl- ilil h.-iUrlaiiil. Till' iiiiiic is no l<>ii;;iT rapaMc ol hriii*^ woi-KimI (d a |ii iinaliilily of liis |tiii-rliasi- so Ion;: a<« In- is not Ill-Ill lial)|i> for Mil' prori'itls of ;:o|v him liming' his iiiinin;: o|iii-alions nor foi ni-;:li^^i-nl workin;;. Till' oiilcrs wore rorri'i-l in ilorlariti'.: I lie salo to hini of ilic plant ami niaihinriy valiii, ami in not holdinu him liiilli* as aforosaiil. Ho wan a l>oiia litl'- pnrrliaH<'i- for Viiliic without notico of a.iiv of iho roinpauy'.v ri;:htH to iiiipcacli till' \ali(litv of llio sale. Mr. Suiitli'jatc. (^.C, loplinl. Tlu' jii(lj;nH'nl of tlu'ir Lordships wa^ ilcliM-iod by SI I* -AMKS \V. CO! A' ilk :— Till' ronipauy which is the lirsl of tin i('sj<'«jidi'ni< iti this appeal, and which will. lhron;;hont this jml^i.H'il. i.".' 2 A|i|>. CiiH. 110. in;. UT. i::i hi III.. I'rivy Cimii-il. 41 i,. .7. ('■. V\ ::» : 2i' \V. W. F.!'4 : 27 1.. 'Y. (.\. S.) 188 ; Itflow. 6 W.v \V. \ AH. (i:i|.l IS::; 3 Aust. •liir. 44. -' 14 Sim. 7». - "■ I Miuid.K k. 269. IMAGE EVALUATION TEST TARGET (MT-3) 1.0 ItKS I.I 1.25 £ Its 1.4 2-5 II— |2£ 1.6 Photographic Sciences Corporation \ 4 '^ o V ^ 6^ 23 WEST MAIN STREET WEBSTER, N.Y. 14580 (716) 872-4503 «- ^ «^ /^ 4i, (/. rf> \ 42 TORRE NS GASES. be designated as "tlie coiupany,'' was incorporated on tlie 18th of October, 1H(J(J, under the provisions of a colonial statute, The Mining (\)nipanie8 Limited Lia- bility Act, 18(54, for the purpose of worliing certain mines at Ballarat. The National Hank of Australasia (the appellant), which will hereafter be spoken of as "the bank," had a branirh at Hallarat, and were the bankers of the company. In 1878 the then directors of the company caused to be executed under its common seal two securities in favour of the bank. The first of these was an indenture bearing date the 22nd of February, 1873, [*39!)] which, after reciting a resolution of the share- holders of the company, empowering the directors to borrow .o viy not exceeding £20,000, and an agreement between ihe directors, purporting to act in pursuance of *he pov; ? given to them by that resolution, and the ^jauk for ; fvauce of £10,000, and for having the re- payment ty; ,, li advance with all further sums in which the company might thereafter become indebted to the bank, with interest at the rate of 7 i)er centum per annum, 'jccured in manner thereinafter appearing, and also by an assignment by way bf mortgage of the lease- hold property of the company bearing even date there- with, assigned by way of mortgage, the plant and machinery thereby specified. This deed fixed no time for the repayment of the sums secured, but contained a power of sale, expressed in the fullest terms, which the bank was to be at liberty to exercise if the company should make default in payment after service upon it of a demand in writing under the hand of the manager or acting manager of the Ballarat branch of the bank. The second security, being the further security men- tioned in the indenture of the 22nd of February, was not executed until the 11th of March in the same year. It was an instrument of mortgage of the leasehold estate therein described of which the company was the regis- tered proprietor under the provisions of the Transfer of Land Statute, otherwise known as A<'t No. 301 ; and it was, with one variation that will be hereafter noticed, in the form prescribed for mortgages by that statute. NATIONAL BANK v. UNITED HAND IN HAND. 4:j and was duly rojifiHtored on the KJth of ApHl, IS?:?. The property conipriHed therein will be heureforth (tailed "the mine." In 187G the company instituted against the bank and the respondent Lakeland, a purehaser frt)!n th<» bank of the mortpiged proi)erty, a snit of whi<'h the nature will hereafter be considered. On the (ith of December in that year Mr. Justice Mole^worth nmde an interlocutory decree which, amongst other things di- rected an account to be taken against the bank as mortgagees in possession. The full Jiench of the Su- preme <'ourt of Victoria affirmed, with some Nlight variations, the decree of Mr. Justice Molesworth by a de- cree, dated the 3rd of May, 1877. Against this last decree the bank obtained leave to appeal on the KJth of May in that year. That appeal is the first of those of which their Lordships have now to dispose. [*400] Pending it, the accounts directed by the decree were taken in the Master's office ; and on the 0th of August, 1S7S, an order on further directions Avas made by Mr. Justice Molesworth, which on appeal was affirmed by the full Court by its order of the 30th of the following month. The second appeal to Her Majesty is against this last order. The two appeals, though heard together, will be considered separately. The first and principal obj<'c- tion taken to the interlocutory decree is that inasmuch as the company, by its bill, impeached the validity of the mortgage securities which the Court affirmed, no decree ought to have been made in the suit, except one of dismissal without prejudice to the plaintiff's right to bring a regular suit for redemption. In support of this contention the learned counsel for the bank relied upon the rule of Courts of Equity to this effect, which they insisted was established by the case of Troughton v. Binks;2« Martinez v. Cooper ; ^^ (Jordon v. Horsfall ;-'* 20 6 Ves. 573. 27 2 Ru88. 198. 2s 3 De G. & Sm. 729. 44 TOnRKNS CASES. Itmum V. Wnrin^ ;^" Jolmson v. Foscnnn'yt'r ;"*' and Cren- vcr Mining; (Niinpany v. VVillvmnM.'" Tlioir L(»r(lHlii|>M do nol dispnt*' tli" juitlKU'ity of these <'}it«es, bill conreive tliiif tin* pirsciit \a disriii^jiiishable fioiii tiit'in, and s not fall within the soinewhiit Htrict and tt'chnical rule attiinied and enforced in them. It will be fonnd in all of thetn. if examined, tliat whilst on the ofio hand tho plaintiff intprarlu'd the mort^a^e Hecmilies, the delVndant on lh(> oi»""- insisted on his i'i}j;hts as mortj;aj'<*e and on n *lliinj; nutre, and tliat the relation of ntort^a^or and nioi-tj;a ]!;<'(' having been estsb- lisherl, 1h«' Conrt ln'ld that the plaintiif eonid not be allowed to liav** a donoe for lodcniption on a bill wliieh dispnted tin* existciwe of th.it i-elation, and enntained no pra.vor {ov redcmjition. The inle is treated j\s a I>rivilej;<* incident to the cha iuler of mortjia^^ee, whioli the defendant had thionjUfhout ad!iiitt<'d and insisted on. lint what is the present case? Tlie bill, admittin}? the execution of the moitj;a;;es, insists that sncli execution was ultra vires the then dii'ectois, and piays that they may be declared void as against the company; but it also states, and inipnjjns as fiandnlent and void ag.ainst the company, [*4()1] a series of transactions the effect of which, if valid, would be to destroy the company's right of redemption, and to convert the title of the bank from a mortgage into an absolute title. The 2Stli paragraph, moreover, contains a direct statement that the sums advanced by the liaidc upon the mortgages had been moi'e than satisfied by the value of the gold obtained by them from the mine. And the bill prays, amongst other things, that all the impeached transactions may be declared void as against the company ; that posses- sion of the mine, and of so much of the plant and machinery as remains in the possession or control of the defendants' may be restored to the company ; and that an account may be taken of all gold, or the pro- ceeds thereof, received by the bank, or which but for 20 5 Moo. P. C. 393. 30 25 Bcnv, 88. =" 35 Beav. M'.".. NATJo.WlL HA Mi c CV/T.KJt HA XI) ly HAND. 45 Ihf'ir wilful default inif{l»t havt* Ix'on nM'»'iv«Ml from th«; iniiu', and of tlio ih-ocimmIh of any niai'hint'r.y and plant sold by tlu» defendii:its, and for |)!iyn»ent of what n>ay he found due on takinj; tlio areount toy,etlier with in- terest thereon, "the jdaiintiff offerin^j; and undertakini? 1o pay or allow to the defendants all Hums pro])erly ex- jK'uded by them resjiectively in the workinj; of the said mine, for the substantial benefit of the property, and als ) all other just eredits ; and that all proper and neces- sary aecounts may be taken and all ne.•e,^sary direetion.-i },'iven." Tlie bank by its answer, not relyinjj wholly on its title as unpaid morl«jay;ee, with all the privileges as well as liabilities incident thereto, maintained the validity of the transnflions subsequent t(» tlie mortgagt'S whi<'h Avere impeaehed by the bill ; alle^(»d that under the circunistances thercnnbefore appearing it became abso- lutely entitled to the property comprised in the mort- ;;;ii;('s ; submitfi^d that it was not liable to account to the c()m])any, or to any other person for its dealings thoi'ewith, or for the proceeds of the sale of any of the said property ; and denied that the plaintiffs had any title to, or right or interest ir the property the subject of the suit, or the accounts thereby sought. From this statement of the somewhat loose and in- formal pleadings in the cause, it plainly appears that the issues raised between the company and the bank were not merely mortgage or no mortgage, but further whether, by means of its acts subsecpient to the im- l)eached mortgage, the bank had ceased to be mortga- gees, and had become absolute owners. [*40U] The Oonrt was bound to try all those issues. The dismissal of the suit might have been taken to affirm the title set up by tlie bank generally, or would at least have left its claim to more than a mere mortgage title, subject to redemp- tion, open to future litigation. Again, if the company, as the Court observed, failed to establish its right to have the mortgages set aside, but succeeded on all the other issues, the result was only to modify the relief prayed by the bill, and it was obviously necessary to 40 TORRENS CASES. direct the noconntH ancillary to tliat modification in order to ascertain wlietlier, as allejjed by tlie bill, the bank's advances on the footing of the inort^aKes had been more than 8atisfU»d by their receipts, or whether there was still any balance dn«' to them in resiwet of those advances. Theii* Lordships are, therefore, of opinion that the rule invoked does not apply to such a case as the present, and con<'eive that they are in fnome measure supported in that opinion by the cases of Montj^omery v. Calland"^ and the Incorporated Society v. Richards,-''''' which will be hereafter noticed with resjM'ct to the other (piestions raised at the heai- iujr of these a}»peals. They prefer to rest their judg- ment on this point upon tlie distinction taken above, rather than upon the jjeneral princ-iple upheld in Parker V. McKenna,"'* The London Chartered Bank v. Lempriere^'- and Hilliard v. Eiffe,^® because those decisions relate to what should be done on the failure of tV plaintiff to prove allegations of fraud in general cases, whereas the rule invoked by the bank in this case is one based upon the relation of mortj^agor and mortt^agee. The prin- ciple, however, of tliese decisions, so far as it is applic- able to this case, is in favour of the company. Assuminjr, tlien, that tlu^ bill ought not to have been dismissed on tlie ground suggested, their Lordships have to consider whether the questions determined in favour of tlie company were correctly so determined, and wlietlier the decree based on such findings was incorrect either in substance or in form. Little, if anything, was urged at the bar by way of argument to show tliat the declarations of this decree touching the transactions [*403] subsequent to the execution of the mortgages were incorrect. The first of these transactions is the execution sale to Cuthbert in trust for the bank on the 0th of August, 32 14 Sim. 79. S3 1 D. & War. 158. 34 L. R. 10 Ch. 96. 35 L. R. 2 P. C. 572. 3c L. R. 7 H. L. 39. NATIONAL BANK r. UNITED HAXIt IN HANI). 47 is74, which iH the root of the* tltU' Het up b.v the bunk t(i an iibHolutt' intcrt'Ht in thf niortf^iiKtHl property. Th«.' flirts proved iXH to thlH were tlie following;. In the pre- 4-edin}; niontli of July tlie company, beinj; Indebted to Ihe banlv in the Hinn of £15,:W4, and beinjj otherwise, as it would seem, in an unprosperoug condition, a scheme Avas set on foot for the formation of a new company, for tlie issue of new shares the proceeds whereof were to be iipplied partly in reduction of the debt to the bank, and for vesting the property, subject to the mort^aKtS in this new company. This, of course, <'ould not be legitinui- tcly el*' cted except with the consent of the recpiisite iinniber of shareholders ascertained by proceedings duly hud under the provisions of the deed of association o! tlie company.' No such proceedinj^s were had. The ( oni-se of ai'io«l. That tliiw has Iwcu the vi«'W of its i'i;;Iits taken h,v the hank is shown b.v t!i(> tliinl of its m'oinnis of appeal fiojn Mr. .Justice .M(»Iis\vi»itli to tlie Full IJeneh of tlu' Supreme i'ouil of \'i»ue of the notice of tlie l()th of February, 1S75 (the terms and etYect of which will be aftf'rwards considered). This was somewhat inconsistently served upon the oM as well a-; upon the new c(»mpany. Then eame the prot'eedinj?s of the nth of Mar<'h, IST.I. under whieh the moitj;aK<'d premises were put up f(tr Side, as under tiie powers of sale conlained in the indenture of assignment and instrument of mortgage. Mid knocked down to the Messrs. Davey. This transac- (iere buyinj;' in of the tiro|»erty put up for sale. In neither view ht of the comp.iny. On tlie second hypothesis it would necessarily le;ive the rights of all pnrties as they were ; on the first, the sale would be imjK'aclial'le by the conii)any, on the p,!'ound that the Daveys were merely nominal purchaser'? on behalf of the bank, who. as moi'tjjafjfees selling under their power of sale, t'oukl not sell to themselves. The last iuid most important transaction to be con sidered is llie sale to Lakeland, both of the plant and machinery and of the mine, for one lump sum of £<»,00(>. under the memorandum of aiireeuKMit of the l.")th of Se]»tembei", ISTo. Mi'. Justice Molesworth lield that this sale was unwarranted as between the company and tla* bank ; bnt as between the company and Lakeland wnh valid as to the plant and mach.inery, but not as to the mine. The full (^ourt, however (and, there beinj; no cross appeal, its decision on this point must be accepted as final), held that, as between all parties, the sale was AAT/oyM. /;.I,VA' V. IMT/Jt llAM) JS llAMi. 4!) Viilitl iiH i(t 111)' jtliiiit )iii«l iiiiicliiiM'iy, hut nut aM to ilio miiM". Tli»' qiH'Htioii, (lu'n'foiv, is rcdtuiMl to tliut of the valiilil.V of the huK' of tiic luhn'. Mr. .liiHtlrc" Moh'HWoi'th, hrln^ (loubth>HH more familiar than we are liere [*4(>r»] witli the proviMiooH of the TranH- ft I- ot liiitulH Statute, and tlitMr applicaition, Huniniarily (liHposed 4»f thiM (piestion l).v saying, " I do not think that tlie l>ank etlfeetuall.v Mold Lakeland the ininin;; lease. It r :{()!, and did not." This point, however, having been rained at the bar with •loiiie distinetneHH, at leawt in .Mr. Houth};ate'H reply, tlieir LordshipH will deal with it more in detail. It iH not immaterial to eonsider in what characler tlic bank waH dealing with Lakeland in thiw tran8a«Mion. On the face of the agreement of the loth of Septemlier, 187."), they do not purport to be acting as mortgagees exercising a power of sale. According to their case, tlu'v were then the absolute owners of the mine, inas innch as whatever right of redemption had existed in the old company had been extinguished by the sale to (■utlibert in 1874, and whatever right of redemption had ('V( r <>xisted in the new company had been extinguished by the execution proceedings taken in March, 1S7.". against that company ^which thenceforth disappeared ii'om the scene), and by the subsequent assignment from Uardy to the bank. It is hardly necessary to observe that a sale of the mine by the bank in the character of ubuolute owners, which, as between them and the com- pany, they did not possess, could not pass a good title against the company. If however Lakeland, to use Mr. Justice Moles worth's expression, is " entitled to the benefit of all the [muddled titles and powers which the bank had to con- jvey to him," and the sale is to be treated as made by the jbank in exercise of the power given by the instrument lof mortgage, the transaction is impeachable upon other |grouQds. The company was the registered owner of the line under the provisions of the Transfer of Land Sta- tute, and the mortgage was made under and subject to the provisions of the 83rd and following sections of t hat H.TOltXAS. — 4 r)0 Tountjys rM.VA'.v. Art, and wuh dulv n'j{lMt«M*<'(l tlMMTninlfi*. Tlw liistrii iiicitt itHolf \h in tli4> form Hct furtli in tlic I'JtIi Mcliednl*- to tli4> Act, except tliat it contaiiiH, um (hat foini pHt, and hucIi defaidt hIuiII be continued for ont' month, or for hu<-1i other period 4»f time aK may thereiu for timt purpoHe be <*xpreHHly fixed, the mort^ajjee mav serve on the mort;{a};or, in the manner therein Hpeciflcd. ni»tice in writinj; to pay the in«mey owlujj; on the moif j;ane. The S.'ith section provides that if siich defuuii shall continu<' for one nmnth after the service of huiIi notice, or for such other period as may in such mortgaK<> be for that purpose fixed, the mortgagee may sell the land, giving him ample powers and discretion as to the m«Mle of sale, and providing that no purchaser shall In bound to see or Inquire whether such default as aforesaid siiall have been made or have continued, or whether such notbe as aforesaid shall have been served, op other wise Into the propriety or regularity of any such sale, The 87th section provides that, upon the registration of any transfer signed by a mortgagee for the purpose of such sale as aforesaid, the estate and Interest of the mortgagor In the land therein described at the time < f the registration of the mortgage, shall pass to and vest in the purchaser, freed and discharged from all liabilitv on account of the mortgage, otv. The special clause in the Instrument of mortgai!;i was to the effect that, notv ithstandlng anything con tained In the Land Transfer A<'t, it should be lawful forj the bank, in the event of default being made in the pav ment of the principal money and interest secured "odI such demand being made as aforesaid," immediately m serve such notice of demand as aforesaid in the manncM me SATUfSAL HANK v. UMTKlt HANI> IS tiASU. 31 |ii'«>H( riltrd bv llif H4lli H<><-li(iii of tli<* Htututc on tlu' coin- piin.v, aiid, iifttT tli(> expiration (»f fourlmi (Uivh from tlu' H<'rvi('<' of tlic notice of demand, t<» Hell tlie land in pursuance of flie poweiH in that behalf veHled in the iiioitpiKc*' under the Motli H(>rtion of th«> Hlatiite. It IniH been argued that the demand of the Kith of Fchnnii'V, IST'j, wan the onl.v notiet* of demand which, under thiH clauHe, waH r(M|uiHite in (M'der to Hnpport a Hiile made fourteen da.VH after thin Hervice in pursuanre of the Ktatntor.v power. The clauHe in not very elearly w7] makeH no reference to the statu- tory mortpi^e of the mine, but merely MpecitleM, as the (onseijuence of the failur(> to make payment forthwith, tluit the bank will proc(>ed to exercine uU or auch of the |)owcr8 contained in the bill of Male (of the chattela) as ii shall see tit. The clause in question seems to their L(M-dships expressly to require service ot some notice of demand to be made after default in payment. It may (|ualify the 84th section by allowing that notice of de- inand to be served immediately instead of " one month " after default, and the H5th section by allowinf^ the sale to be made fourteen days instead of one month after service of such notice, but it does no more. It does not deprive the mortgagor of the right to have a notice of dciuand served upon him, aftt>r he is in default, as a uecessary preliminary to a sale under the statutory power. From a case recently before their Lordships (Campbell v. Commercial Bank of Sydney), which aro8(^ upon similar provisions in a New South Wales Act, it may be inferred that, upon an application to complete the title of the purchaser by registration under the 87th ■section, an objection on the ground of the failure to j serve a proper notice of demand might, and probably I would, have been taken by the registrar. Again, it fol- llows from both the 42nd and 87th sections of the Act under consideration, that, whether the transaction with 62 Ti'ltllKSS CASKn. I.)ik<'liiii(l hf i'r);tii-(l iiHiilKiiKi't'M iiiHlcr I he Hliiltilorv |»o'.vcr, no in Icl't'Ml ill tiM' iiiiiif roilld (>tT<*rtiiiiiiv |hihh I<» llit> pur rliiiHcr iiiiiii n>KiHlnilioii, and coiiHcipiciitl.v tliat llif a^iMTinciit of tile 151 ii of Sfptniiltfr lH7r», waH ii infi-(> a^i-miM'iit foi' Hair wliirli, wlialfVi'i* <'«|iiilii'K il rn'atcd iH'iwcni ilic liaiil; ami LalxciaiHi. left liir prior iM|iiil,v of till' roiapaii.V illlloiirlicd. TIkMi' hoi«lHiiipN Iiav4> now to ai willi tiir ptM'tlcii lar ol»j<'i(ionH talifii to liir form uf tiu' decree. In onl«>r to <>Htimat(> tlu' ivci^'lit of (Iich<', it wiil be w«'ll to con Hidci' wlial waM tin' p'ticral nature of tiic (Iccvch* to be madt' in a Kuit ho fram«>d, and upon tlit* faclM xo foiiiKi, 'riM> Hiiit wuH in till' nature of an e Itfiii'tltH attiir|i«>(l to Jiu' rhiii'iMici' of 11 fiilr niMJItor." TIh' imiliniliir olijcctloiiM to tin- form of tin* Iritor lonitoiv (h'lrcc will now Im* ronHidmMl In «l«'tall. Tin- lliHt wiiM that It rhaiK<>H tin* hank aM nioi'tKajjccH in poM wHHion from tli«' (Itli of AnyuMt, IM'I, tlw «laf«> wImmi <'atlilH>ft took poHHt'HHion of ili(> mine. TIiIh ol»J<>ction wuH Iml falntiv pr«'MM«>«l, Hinn> it Ih oltvioiiHl.v for the In- ((•i'<'Hl of tlir liank llial the arcount Hlionid oovfi* tin* |M'rio»l l>('tw<'<>n thai «lat«' an«l Frbnniry, IHT'i, wla-n tin* hank n'Hiini«>rio4l, aiul for whieh the bank ^ut rredit in arronnt, ainonnt to £4,25t( oh. (kl. In any caMe, however, the direction appeai'H to their Lordnhl' to he correct, becanHe it Ih conHiHtent with th<> fa« tri cHtahliHhed, and v 1:'. the claim of the bank to an ab- Holiite title in the mine aH apiinHt tli(> company from tlie •late of the HlieritT'H nale to Tnthbert. The Hecond and third obj(>ctionH were that the decr«M' cironeoimly tr bank an chargeable with the value of the j^old obtained, [*MY.)] tlrnt, by the new company, iiiul HCiondly, by Lakeland. Their LordnhipH are of ojiin- ion that the bank wan properly ho treated. Ah nu»rt- ^fu^ecH in poHHCHHion they were aidmittedly accountable, not only for their a<'tual re<'eipts, bnt for what but for their wilful default they ml^ht have received. And it apitcaiH to their LordnhipH that whatever wan receivet8 if, when he tuok poHHCHMibu, an arrcar of interest was due to liini. ThiH, however, as lias been shown, is not an ordinary redemption suit, and tl»e before cited ease of tlie ln<*or porated Hoeiety v. Richards,''" is a clear authority thai in an exceptional case lilie tliis tlie defendaiit oiiinot claim the immunities of an ordiuarj' mortgagee. TIum'c Lord St. Leonards ordered the account to be taken with annual rests. Such a direction, though more usual, is in ti'rms less favourable to the defendant than thai con sidered in the decree under appeal, which amounts only to one that interest be allowed on both sides of the account. That it was competent to the Court in the circumstances to give sucli a direction their Lordsliips entertain no doubt. The question whether the Master has correctly calculated interest under that direction was one which could only be raised on an exception to his report, and the bank filed no exceptions thereto. Their Lordships may, however, remark that he seems to have acted correctly in allowing compound interest with lialf yearly rests on the mortgage debt, that debt being the balance of a current banking account kept in that way ; and that, if the interest was to be so calcu- lated on one side of the account, it ought, by parity of reason, to be calculated in the same wav on tlie other side. Whether the bank ought to have been charged with compound interest on the balance found due from it to the company on the 3l8t of March, 187(}, [*410] after that date is, perhaps, a question wliich might liave been successfully raised by an exception to the report. But it was not so raised. Another objection taken was that the interlocutory decree, instead of directing, as in an ordinary redemption suit, the taxation of the bank's cosfs, and the addition of the certified amount of them to ihe amount due for principal and interest on the mortgage, reserved the consideration of them until after the taking of the account. It is suflBcient on this to say that in a suit of this character such a reservation was, in their Lordships' judgment, within the discretion of 8» 1 D. & War. 334. AATloyAL HANK i. UNITED HAND IN HAND. 55 ilu> fotift, and coiisishMit with iiHiial prarlici", Wlu'tlier the (Nuiii, uudj*r the ivscrvaticm, wan rijjlit in uialvinu tlie order ah to vn»tH wliich it made on fnrtliiT direction, is a question whicli will be eontiidered on tlie other ap- peal. That tlie coHts of the first appeal to the full Court were within the discretion of that ('ourt their liordships have no doubt. Nor would they see any ^'rounds for impeaching the soundness of the particular exercise of that discretion were it proper to entertain iin appeal on that (ground. An objection on whicli their Lordships have felt <;reater dilllculty is that taken to the direction in the decree, as tinally drawn up, that the bank should be (•harj,'ed with " what but for its wilful negligence and de- fault would liave been the clear proceeds of the sale of tlie said plant and machinery." The bill, which is loosely drawn, made no special case as to the sale of the plant and machinery at an imdervalue, otherwise than by alleging in the 3oth para- jijraph that the sum of £6,000 was considerably less than the value of the mine and property sold to Lakeland, as the bank well knew, and that a larger sum had been, previously to the sale to Lakeland, offered for the said property ; and as to the plant and machinery prayed only for an account " of the proceeds of any machinery or plant sold by the defendants or either of them ; " say- ing nothing about negligence or wilful default. Some evidence was, however, given at the hearing touching an offer of £8,000 for mine and plant, and the value of the latter ; and Mr. Justice Molesworth, com- ing to the conclusion that the whole of the transaction with Lakeland was fraudulent and void as against the company, decreed that the bank should be charged [*41]] "with the diminution of the value of the mining plant and machinery caused by its selling in excess of its re- placing ; and with the full value of the mining plant and macb'nery sold to Lakeland." His decree, there- fore, so far as it related to the plant sold to Lakeland, was consistent with his finding ; and it cannot be said that there was not some evidence to support both. The m TORRENS CASES. (lifllcnlty, however, airises on the decree us modified by the full Court. Their judgment says, on thin point, " \Ve think, however, that the decree must be varied. We consider that the sale of the chattels was not unwar- ninted, and that the bank oun:ht not to be charjj;ed with (lie value of the plant, etc. ;'' and, after dealing; with th<' notice of demand and its effect, adds, " the declaration that the sale to Lakeland was unwarranted as against the plaintiffs, and that the bank should be charged with the diminution in value of the miniu}; plant and raa- ••hinery comprised in the mortgage, must both be omit- ted, bnt the bank must be charged with what but for wilful negligence and default would have been the clear /(roceeds of the sale of the plant and machinery." And tlic decree was varied accordingly. At tirst sight the tirst passage cited from this judgment seems to be in- *der as of the 22nd of July, 187H, fixing the amount due from the bank at £6,815 lis. The only question that remained was, what was to be done as to the costs of the suit ? Now not only had the bank set up, and failed to prove, a title to an absolute interest in the property, not only had it sought to destroy the right of its mortgagor by a series of very questionable transactions, but it had then been found to have been overpaid, in its character of mort- gagee, when the bill was filed. These circumstance-i were amply sufficient to deprive it of the ordinary right of a mortgagee to the costs of suit, and to bring the (luestion by whom the costs were to be borne within tlie discretion of the Court. Their Lordships can see no ground for interfering, contrary to the ordinary practice of this tribunal, with that discretion, and must there- fore humbly advise Her Majesty to affirm the decree of 58 TORHfjys CASES. the 3rd of May, 1877, [•413] and the decretal order of the 30th of September, 1878, and to diHniisH theHc api)ealH with coHtH. SulioitorH for tlio uppollnnt :— WndcMon & MallcHon. Solicitor for rt'spomlt'nt Company :— Thomas Randall. Solioitors for ruspondent Ltikcland :— Brnudrett. IlandHll A Oovett. pRivv Council,* 1876]. [L R. 2 App. Cases, 110. THE REGISTRAR OF TITLES Appellant, AND ROBERT BRAND PATERSON Respondent. On appeal from the Supreme Court of Victoria. Victorian Tramfer of Lands Statute — lietfiHtration of purchase ffom jwhjinmt debtor — Alias writ ofji.fa. On the 2nd of Juuuury, 1872. B.'b trnnsfei'or presented for regis- tration under the Transfer of Lands Statute transfers of certain lands ; and on the 21st of the same month B. obtained reKlstration of the transfers and the usual certificates of title. More than three months previously, viz., on the 20th of October, 1871, a copy of a writ of fieri facias (which had been issued by the Supreme Court in an action against the said transferor) was served on the appellant under Sec. 100 of the said statute, specifying the said lands as ** the lands sought to be affected thereby," and wos by the appellant duly entered. On the 5th of January, 1872, a copy of an alias fieri facias in the same action, with a statement specifying the same lands as the lands sought to be affected by such writ, was also served on the appellant. On the 2nd and 28th of March, 1872, transfers of the same lands from the district sheriff to the respondent under the alias writ were lodged for registration with the appellant, who refused to register them or to issue certifictites of title : — Held, on petition by the respondent under Sec. 135 of the said statute, that the appellant was right in such refusal. B. had pre- viously to the 5th of January, 1872, acquired a title to the lands which could only be defeated by a sheriff's transfer of them in pursuance of the original writ, and as the respondents' transfers were in pursuance of the alias writ, and were made at a time when according to the statute no valid transfer could have been made in execution of the original writ, the appellant was right in com- pleting B.'s title by registration on the 21st of January. •Present:— Sir James W. Colvile, Sir Barnes Peacock, and Sir Robert P. Collier. Also reported in 35 L. T. N. S. 642 ; 46 L. J. P. C. 51. THU HKUISTRAH OF TITLES v. I'ATKUSON. A9 This w;iH an appeal from three* ruIeH or orderK of the Hupreine Court of the eolony of VIetorhi, made I'eHjKM'- tlvely on the 2nd of Heptember, 1872. the Mrd of April, 1873^ and the liUh of September, 1H74, by the ttrHt of which It was ordered that the Registrar of Titles should register certain transfers of land to the respondent In accordance wltli the lOUth section of the Transfer of Lands 1*111] Htatute; by the second of which It was ordered that the Rt'j^istrar of Titles should call In the certificates of title to one William Baylls, and should Issue to the respondent clean certificates of title to the said land under the provisions of the said statute ; and by the last of which It was ordered that the Registrar of Titles should register the respondent as proprietor of the land, and Issue to the respondent clean certificates of title under the provisions of the said statute In respect of the said land. The facts of the case and the proceedings of the Oourt below are sufficiently stated in the judgment of their Lordships. [The judgment of the lower Court Is here inserted, as it is frequently cited In Vu torlan cases. *STAWELL, C.J.:— Summons calling upon the registrar under " The Transfer of Land Statute," to substantiate the grounds of his refusal to register the applicant Paterson as pro- prietor. A person of the name of Mulholland, the registered proprietor of two leases from the Koard of Land and Works, had a judgment recovered against him for an amount not specified. On the 20th October, 1871, the execution creditor lodged with the Registrar of Titles a copy of the writ of fi. fa., with the statement required by the 106th section of " The Transfer of Land Statute." On the 2nd of January Mulholland lodged transfers of the said land from him to William Baylis, in considera- tion of £632. On the 5th of the same month, and before •Reported in 3 V. R. 128. l.TO, sub. nom. In the matter of "The Transfer of Land Statute," ex parte Robert Brand Pater- son: 3 A. J. B. iA. 00 TU RHEA'S CASKS. tlio tlmM* iiioulliH Hp<'rif{(Ml ill tlu' KMUh Mcctlcm had ««x- pin'd, the exiTiition rrcditor lodp'd nn aliiiH ft. fa., or nitluT a copy of it, witli tlu' rrj^iHtnir. AftpoHited on the ■Jnd .Taniiai'V, having bwii dctaiiuMl by the Kej^istrar of Titles, were re^iHtered. rat«'i'HO'», th<» prewent applicant, HubHe(iiiently appli<>d t«» be rej;iHtei'ed under transfer from the sheriff and was refused, and the reason as- signed is " That as a transfer on a sale under the writ served on the 2()tli of ()<*tober, 1S71, was neglected to be left for entry upon the rejfistry within three months, such writ ceaised to bind, charge or affect the lands " (sections 'A and 10«5) ; by the lOGth section the execu- tion creditor is jnit in no better and, in our opinion, no worse position than he was previously. The writ does not now bind the land, but the copy of the writ when lodged, accompanied by the necessary statement pre- scribed by the section, precludes any transier being registered for three months. The Registrar of Titles has apparently read the words [*131] "any writ" as if they were " any original writ." We think there is noth- ing whatever to justify such reading. The words "any writ " for obvious reasons refer to an alias or pluries writ just as well as to an original writ. There is noth- ing, in our opinion, in the context to justify limiting the words to an original writ. On the contrary, it would be a manifest and gross injustice on the execution creditor if he was so restrained. He might be thus in effect pre- cluded from enforcing his execution against the lands. The proviso relied on, in our opinion, rather strengthens our view than otherwise. The judgment debtor declines to pay, and yet he insists upon the execution creditor levying within three months, or, if not, the exe.v Hxivh writ, huM Ihmmj H«'rv«'d on tin* K<');iHtrai' of TitleH, and no tranHfci* upon a Male iind<>r hucIi t\vi\ fariaH hart Ikm'h h't't for I'litry upon the r»*j{lHt«M' within tbr«'«» niontliM from tlit' day on whi«*li th»' copy wjih nerved, l)ut a ropy of an aliaH llerl faeiaw, aecompamied by such statement aw af, and notwitlmtandlnK the {nirchaMer hud actual or coiiHtructlve notice of the lodgment of hucIi writ. I'pon production to the connnlHHloner of Huftlii(>wiil of (lie lorm of lhr«M» monlliH.] The n'HpoiHlcnt wan r«'fiiH»Ml n>jflHtnitloii arronlliijr to IIm' Hialt'd «:i'oiiih1h of n'fiiHal, ttiMt, iMM-auHc Ills IraiiHftT Im'Iii^ oii a 8al«' ijihIit 1Iu» writ hpi'vjmI on tlu' '2iH\\ of (>«'folM*i*. it waH not l«»ft for rntry upon IIm' rt'^lMicr within thnM' uiontliH, and arronllnnl.v, tln' wiitM hud ccaHcd to bind, tiiai'^*' or att'iMl tli<' land ih(m> him* tlons 3 and lOtJ) ; and wrondl.v, hocauHr if mich were not the «rorrpt't view of tho hiw, he Hliould Iw left to an.v other remedy whirh ln' niinht have under Bection 14(5, or otherwisj'. The Chief .luHtire held theHe reaHons to be inMuttlri«»nt. It is eontended that the re^lHtration waH rij,'ht and that the judnnu'iit creditor waH not entitled to iHHue a writ of alias fieri faeias ho as to defeat a prior uHsiKninent for value to HayliH, which had previouHly been lodged for re^iHtration. An atti-nipt to keep alive the same creditor's ri\i\\t by a auci'eHsion of alias writs is contrary to the policy of the Act. lU're the sale took place under an alias writ wliich was issued after the transfer to Uaylis had been lodged for regis- tration. Further, assuming that the registrar ought not to liave registered the transfer and granted a certificate of title to Baylis, still as he has in fact done so bona fide, conceiving that he was required by law so to do, it is submitted that the Supreme Court had no power to order him. while such certificates remained uncan<;elled, to issue certificates of title to the same land to the respondent. See section 47 of the Transfer of Lands Statute. It is, moreover, contrary to the whole scope and policy of the statute that there should be two per- sons (not joint owners) holders of certificates of title to the same parcel of land, and according to the true construction of the statute, the Supreme Court had no power to direct the registrar to issue to the respondent certificates of title to the land in question while another person, claiming by title adverse to that of the respon- dent, held certificates of title to the [•114] same land. For statutes regulating the procedure of the Courts, see rHK HKIUSTIIAH OF TITLKS i. r.iTKKSON. 05 W) VU't., No. 1:1, V. ({, and \\\v ( r(>Hpoii(l('iit (lid not appear. The jiid^nient of llu'lr LordHhipH wan delivered by SIH JAMKS W. (M)LVILK :— ThiH Ih an appeal by the RejjiHtrar of Tltlen in the <'ol(»n.v of Victoria aKalnnt three ordeiH of the Hu[Heino ("ourt of that eolon.v, dated reMpectlvel.v i''e Und of Hep teinber, lH7a, the aid of April, lK7a, and :he l!)th of Sei)teniber, 1874. The determination of It turnH chiefly upon the conMtnictlon to be put upo?i certain claiiMeH of an Act paHHed by the Colonial LeKlHlature In June, lH<»t», and known aM the Transfer of LaudH Statute. The clrcuniHtanceH under which the orders In ques- tion hj. ve been nuide are the following : — In October, 1871, John Mulholland was the regis- tered proprietor of certain lands. On the 20th of that juonth a copy of a writ of fieri facias, which had been issued In an action against hlni In the Huprenie Court at the suit of William Malnfold Altkeu, was served on the Registrar of Titles, In conformity with the 100th section of the Transfer of Lands Statute, specifying those lands as " the lands sought to be affected there- by." The usual entry was thereupon made In the register book. On the 2nd of January, 1872, Mulholland presented for registration transfers of the some lands from him- self to one William Baylls, In consideration of £632 paid to him by Baylls. On the 5th of that month a copy of an alias fieri facias in the same action, with a statement specifying the same lands as the lands sought to be affected by such writ, was also served on the Registrar of Titles. On the 2l8t of that month, and therefore after the expiration of three months from the date at which the copy of the first writ was served on the Registrar of Titles, that officer registered the transfers from Mul- . H. TOR. CAB.— 4 m roK/lKXS CASKS. hollnnd to BiiyliN nnd iNMUod to th(> Inttcr tli(> iiNiiai (vrtitlnilcH uf title. On the L'lid and 2Htli of Marrh, 1N7'.', tninNfcrM of tli«' Hiinir ['HoJ liindM tvotn the diMtrirt nluTlff to the I'OMpondcnt under tlie aliaH writ were lodged for re);iN tration witli tlie re^iHtrar ; but lie refuHed to reffiHter them, or to iHHU(> certiltrateH of title to the reHpondent HH the proprietor. The conHideratiiui for thcHe trauHferH \h Maid to hav(> l>e<>n onl.v £S. The renpondent, therefore, if reul-y a purchaHer, and nut u mere a^cHt of the Judt; inent creditor, HeeniH to have known that he wait buying' a very quoHtionable title. Upon thlH the reHp«>ndent, proreedin^ under the in5th Hection of the Mtatute, reipiired the registrar to Met forth in writing the groundH of IiIm rt'fuMal, and after- wards took out a MummonM in the Hupreme (*ourt, call ing upon him to MubMtautiate and uphold thoMo groundH. The matter of thlM application waH determined by Chief JuHtice Htawell on the 2nd of September, 1872, when the flrMt of the orderM under ai>i)eul was made. By that order the ret^flMtrar wjim dire, led forthwith to enter in the regiMter a copy of this alias writ of tleri faciaw. unless the same htld already been entered ; and alH<> forthwith to register the transfers to the respondent, in accordance with the ItMith section of the statute. This order having been made upon him the registrai* tendered to the respondent certificates of title, quali tied by a note in these terms : " This certltlcate is issued to Mr. Robert Paterson, the transferee, from the district Hheriflf, under the circumstances appearing In In re Robert Brand Paten'soii, reported 3 Australian Jurist, pp. 52 and 54, and in pursuance of the decision of th<' Supreme Court In that cose." The respondent refused to accept certificates of title In that form ; and required the registrar to proceed against Baylis under the 132nd section, In order to compel him to deliver up, for the purpose of belntf cancelled, the certificates of title Issued to him, and on the registrar's refusal to do so took out another summons In the Bupreme Court against him, calling upon him to appear and substantiate and TIIK IlKiilsritAll OF TITLKS ., I'ATKHsoS, 07 uphold tlu> KfoundM of Much rrfuMiil. That muiiiiiioiim wiiH (IIh|)om,v the M<>»on onlri'M uimU'I' iip|N>ul, which dlit'clcd the H<>){lNlrar of TKU'N fo'MhwItli to cull In the crrtltlcittcH of title to Itn.vlix, and to Inmuc t(» the reHpondcnt clean c«>i'tltl- ratcM of tltl«> to the Name lutul. In ohedlenre to thU order the re^^lMtrar took out a ■ununonH In [*IHI] the Hupreine rtnirl, under the i:{2nd Hectlon of the Htatulc, aKaluHt Ha.vllH and tuie Smith, who had acquired from MayllM a charge U|)on the landH and waM In ptmrn^HHlon of the certitlcateH iHHUed to HayllH. calling upon I hem to mIiow cauHe why tlume certlflcateM Hhould not he delivered up for the purpoHe of beln^; cancelled. The MumtnonH thuM ultimately dldnilsHed by the ( 'Ourt on the ^{roundH that Hmlth had a valid char);e on the land, and that ho lon^; aH that HubMlHted the Court had no power to comply wMh the HuminonH. it may be obH(>rved that the Hfith Mcctlon of the ntatute contalnH a Htron^ provlHion In favour of purcluiHcrH for value, and apparently jfoverned the declHhai of the Court on thiH occaHlon. The partieH belnjj; thuH at a deadlock, — one order requiring tlu» ret;lHtrar to do that which the Court, «)n dlHmlHHlnf; the last mentioned BummouH, had In Hub- «tanc7, and No- vember, 1887 ; and looking at this by the light of the evidence it plainly refers to an entry by Hrougliton in the year 1875, when he went there and found the place vacant and the house upon it empty." Upon these findings, having regard to facts which were either admitted or proved, the Court was of opinion that the caveators had "failed to show that for any period of twenty years they were in continuous posses- sion," and concluded by stating that [*589] *' the appli- cant must in both suits be declared to be the party fin- ally successful and the caveats must be removed." From this judgment and the orders consequential upon it the caveators have appealed. Their first ground of complaint is that they ought not to haA'e been made plaintiffs in the trial of the issues, but that they ought to have had such advantage as a defendant in possession has in an action for the recovery of land. In answer to this objection it would probably be sufficient to say that there was no appeal to the full Court, and that there is no appeal to this board, from the order which directed the caveators to be plaintiffs. It is stated in the judgment under appeal that it has been held in New South Wales "that a cavea- tor in possession is not in the same position as a defen- dant in ejectment," and authority was cited in support of that view. Their Lordships do not desire to throw any doubt upon this proposition, which in itself does not seem unreasonable, or indeed to express any opinion upon it, as the point is not properly before them. But it may be observed that in the present case the cavea- tors would have gained no advantage by being made defendants. The applicant comes forward and shows a complete documentary title, and proves that he was in possession within the period of twenty years before the commencement of the proceedings. Then the bur- den of proof is shifted ; Leigh v. Jack,* and it lies upon « 5 Ex. D. 264. i 76 TORHEyS CASES. the cttVi'iitorH to hIiow that the n|)pliciiiir*s original tlth' liiiH been defeutt'd, or in otlu*r words that the entry in 1875 was not effective. Then it was objected that the findings of the jury as to Broughton*s entries on the land come to notliing. The statuti', it was pointed out, declares that no person shall be deemed to have been in possession of any land within the meaning of the Act *' merely by reason of having made an entry thereon." That "evidently applies," as Lord Campbell observes in Randall v. Ste- vens,^ " to a mere entry, as for the purpose of avoiding a fine, which may be made by stepping on any corner of the land in the night time and i)ronouncing a few words, without any attempt or intention or wish to take possession." In the present [*5G0] case there is no ground for supposing that the findings of the jury, who must have had their minds directed to this question — the substantial question between the parties — were illusory and unmeaning. The entries must have been regarded by the jury as effective. They are so treated by the Court which included the learned Judge who presided at the trial. And, if the evidence is to be looked at it is plain that these entries were made animo possidendi, and that in entering upon the land Broughton was in of his fee simple title, and that aii.y other person there not having his license or authority would have been a mere trespasser. Under these circumstances it was for the caveators to prove that Broughton's entry in 1875 was of no avail. That could only be done by showing that Broughton's right and title had been previously extinguished. Now the facts are these : — ^William Gore mortgaged the land in fee in 1840. He died intestate in 1845, leaving his son William Bligh Gore his heir-at-law. In May, 1855, the successor in title of the original mortgagees sold the land as he was entitled to do by the terms of the mortgage deed. The purchaser in that sale mort- gaged the land in fee to Broughton on the 15th of June, 1855, and Broughton purchased the equity of redemp- 7 2 El. & Bl. 652. soLLiNu V. nnouiJitroA'. 77 tlon lu 1H(»1. So loiijj; an Ww mort^jam* contlmuHl the jjoHHeHHlon of Wllllnin Hllnh (Jore, tlu* lu'lr-at-law of tlic moi'tK»»;;<>i'. waH not lumtilc to or iucouHistcnt with tlu' inoiipiH;o(''M ri^jht. Tt waH Haiti that tlwrc wan no proof that interost waH ever paid on the niort^ano. It was for the caveators to prove nonpayment .of Interest, If that fact was supi>oHeil to he material. It eonld not really have been material, because no title could hu^e been acquired under the Stahite of Limita- tions between 1840, the date of the mortgage, and 185,'>, the date of the sale. If William IMigh (Jore continued in possession after the sale, as It nuiy be presumed he did, until Broughton's entry In the following June, he must eitlier have iK'en tenant at will or tenant at suf- ferance. Broughton, it setMus, took William Bligli Gore with him when he made the entry in June, 18.55, and authorized him to remain in occupation. Whether Wm. Bligh Gore in fact acted as Broughton's agent or not, from June, 1855, he was tenant at will, and even If there [*5G1] had been continuous occupation from that date by William Bllgh Gore and persons claiming under him without any acknowledgment of Broughton's title, no title could have been acquired under the Statute of Limitations until June, 187G, and it Is found that Broughton entered again in 1875. The same result may be reached, as it has been reached by the Full Court, on the showing of the caveators themselves. They seek to set up a possessory title derived from one French, who died in October, 1875, and who was the husband of Mrs. French, one of the appellants. But French did not enter until after the death of William Bllgh Gore In 1863, and the appellants cannot connect French in title with William Bllgh Gore. French was a nephew of William Bligh Gore, but he was neither his devisee nor his heir nor one of his next of kin. There must have been an Interval between the death of William Bligh Gore and the entry of French. During that interval, whether William Bligh Gore was tenant at will or tenant at sufferance, the rightful owner on the determination of the tenancy by the death of the tenant must have been in of his fee simple without the presence of any other I 78 rORHKNS CASKS. IK>ritoii on the hind \\\\n rould cnrry on or inltinto n daini hostile to or inconHlHteut with his right. rneal ouplit to be dismlHse''. The appellnntH will pay tlu> <'OHtH of the appeal. Solicitora fur appellants : — Honry Kimber ife Co. Solic-ltors for rcHpondont :— Want & Co. PuivY Council.*] WILSON, AND Mcintosh, [6 R. 429. Plaintiff Defendant. On appeal from the Supreme Court of New South Wales. New South Wiiirs — Lund — Caveat — Limitation of time — Waiver — Quilibet potent renunciari juri pro se introtbivto — Heal Property Act, 1862 I'M Vit'L, No. 9j »s. 21, 22, 23— Real Property Act, Further Amendment Act, 1877 (41 Viet., No. 18). The pcrloil of three mouths, which ia the limit allowed by Sec. 23 of the Ileal Property Act of New South Wales for taking pro- ceedings aftcT entering a caveat, is Introduced for the benefit of the person applying to have the land to which the oavoat applies brought under the Act, and may, therefore, be waived by him. On 8th January, 1887, the respondent Mcintosh lodged an application in the office of the Registrar-General to bring under the Real Property Act (26 Vic. No. 9) certain lands, comprising about forty acres. The applicant's title was alleged to depend on the will of one Cornelius Sheehan, a former owner of the lands, whereby he « 13 Q B.. 945. 'Prese it :— Lords Wiitson, Halsbury, Macnaghten and Morris, Sir Richard Couch and Davey, L.J. WlLSoy f. M jyTnsit. 19 dcviHcd liiH real cHtutc to IiIm then wtf(>, iBiibellii Hlu'e- liiiii, fur life, with reinaindcr to the applicant in fee. In hiM (htchiration in Hupport of the application the reHpondent alleged that tiiero waH no one in poMfieMiiioif or occupation of the land adverHely to IiIh intercHt, anc that tlier(> waH not any fact or ciretiniHtance material to the title which wag not fully and fairly disclosed to the ntnioHt extent of his knovvledf^e and belief. On 1-tli May, 1887, the appellant lodf^ed a cav«»at apiinHt the land heinp; brought under the proviHituia of the Act, but Hhe did n(»t take any procei'dinKM to eMtabliHh her title or apply for an injunction restraininj? the ReKis- trar-lJeneral from briuKin^ the land under the provi- HiouH of the Act. The appellant denied the title of the respondent on the alleKation that iHabella Hheehan, the former wife of the testator Cornelius Kheehan, died in his life time, and that the testator had subsequently married a^^aiu and thereby revoked his will, and she further alle^iHl that she and those throuf^h [•430] whom she claimed had acquired title to the land by {xissession under the Statute of Limitations. On 1st November, 1887, more than thi-ee months after the lodging of the caveat, the respondent stated a case for the opinion and direction of the Supreme Court. On 4th November he applied for and obtained an order of the Court directing the appellant to state and file a case on her behalf, which she did on 18th November. Having obtained from the appellant a statement of her case, the respondent did not further proceed with his application, but on 24th July, 1890, he served the appellant with a notice of motion to have her caveat set aside on the ground that, as she had failed to take any proceedings within three months of its filing, as pro- vided by Sec. 23 of the Real Property Act, the caveat lapsed. It appeared, from the appellant's affidavits in opposi- tion to the motion, that on 8th May, 1888, her solicitor had inquired by letter whether the respondent intended to proceed with the case, and receiving no answer, had sent his cleric to inquire, and that the clerk stated that 80 TOKHKXS rASMM, llu' r<'M|>on«li>iit'H Holicitor Infornicd litiii tliiit IIhmv wim 11 (IIhihiIc hm to riMlH liclwoMi liliii mill IiIm cliiMit, iiiiil lliiil Im' wuiiIU liiivi' iMdliinu; iiion' to do wltli tlit- iinillci'. Till' r('M|MMi
  • iii'H lu'i'tti'iil Holirlloi*, ho\v<>vi>r, liiii(l«« (III nllitliivil of his iM'licf lliiit hlH clU'iit wiih not invai'(> until ri'cciill.v lliiil the np|M'llaiil liiitl not ob- tainiMl an injunction. On Nlli Au^UHt, IM'.MI, an onk'v waH made iiMuovinK tla* caveat. From tlial ordi'i* tlie Ui>i»('llan( now appealed. KcctlouK L'l. L'2 and '2'.\ of llic Ural Tropert.v Act (20 Vic. N'o. JM jirc aH followH : — ' ' Bee. '2\ : Any pursoii Imvinu or claiminf( an intoreftt in any land MO lidsurtiHutl uh iifon-Hiii'l oi- tlio iittoruuy uf any aiiuh person may within tii<> tlnii> liy uny iliri'i-tiuii of tlic coninilHitiDntTH for tlint liur|)iiNt> liniiti-ii IiiiIki' a invent with the Ui'KiNtnu--n*>ral in form J<. of the hcImmIuIi' liiTi'to, toriiiiiiiintt the hHiiKinK of Hiieh iaml uu(l«>r the proviMJunii of thJN Act, nnti t>vi>ry Nneli cavfut hIiuII IMirtli iihiri/e tile cHtate, IntereHl, iit>n or eluirKe (lalnit'il liy the lK>r- Hon hxtuinij tlie Hiune, and tlie perHon lodtfinK N matter, and the lands in rcHpert of which Hmh caveat may have been lodui'd hIuiII not he Itroiik'ht niider thi> provlHlonH of tliiH Act nntll Hucit caveat Hhall have Lieen withdrawn or ahall have lapxcd from any of the oauiieH liereinnfter provided, or until a 1*48] doci- Hlon ahall hat-e hetMi (ditnim>d from tho (^ourt having Juriadictlon in the matter." Sec. £i: " After the expiration of three months from the receipt thereof every Huch caveat hIuiII l»e deemed to have lapsed, unlettH tlie perHon hy whom «ir on whose helmlf the same was lodged shall within that time have taken proceedings in any Court of competent jurlsdlcthm to establish his title to the estate, interest, Hen, or charge, therein Hp»'cifletl, and shall have given written notice ther«H)f to the Uegistrar-tJeneral, or shall have obtained from the Supreme Court an order or Injunction restraining the Reglatrar- (Senernl from bringing the land therein referred to under the pro- visions of this Act." Ry Sec. 4 of the Amending Act, 41 Vic. No. 18, it Is provided that :— " \Vh«'re any caveat against an application to bring land under the principal A wii.stts f. M'hyrttsH. HI [•431] J. Anhtoti Crtm; for tho iip|N>lliint. Tlu* rt'M|»oti(l«'tit wiiM nut r<'|»rt>M«>uti'd. Tho JiidKiiK'Ht of \Uv .ludiclal Cuiiiiiiitt(M> was «li'liv(>i'«'d hy, DAVKY, L., .1 :— [IIIm liOrdHlilp, iiftor Mtaiii^ tlu> fuctM, coiitliiiied :J Tlii'ir liordHlilpH an> of opliiioti that the liiiiitalioii of liiiiv cuiitaiih'd III H«M'. '2',\ Ih introduced for tli«> h«>n<>tlt of the applicant to cnahU> hliii to ohtain a Hp«><>d.v deter- iiiinatlon of IiIm rl^ht to hav(> the land brouKhl under the pi'ovlMiunM of the Act without helii^ eiiibarraHMed by the lllinK of a caveat which Ih not proceeded with In due time. It wiiM argued on behalf of the ap|N>llant that th«* elTect of Hec. 4 of the AinendiiiK Act Ih to prevent the lapMe of the caveat by reaHoii of the cav(>ator not taking an.v proceeding, [*4^t2J inaMuiuch aM it Ih thereby provided that "It Mhall not be ueceHMary for Huch cuveutor tj take proceedin^H," and liberty in ((iven to tlu^ applicant to lake the Initiative by Mtatlii^ a caM«', and no time Ih limited within which the caHe niiiMt b(> Htated. Their LordHhipH do not think it ueceMtiary to exprcMH any opinion upon Ihitt point or upon the quemtlon wlH>tlier, If the caveat liad lapHed, the caveator lg concluded and deprived of every other meauH of aBHertlni; her title. Their Lord- HhlpM are of opinion that the maxim, Quilibt^t poteHt i'<'nunclar(> jurl pro He Introducto, applies t(» thiM case, tliat It wan competent for the applicant to waive the limit of the three uionthn and the lapse of the cav(>at by See. 23, and that the resident did waive it by statinfi: a cane and applying for and obtaining an order upon the iippellant to state her case, both wlilch steps assumed an II ni80 on hilt own lH>hnlf, statinx whrtlior lie clnimH in IiIh own I'ltcht or under another person, together with Huch other partieularx (if any) as th>^ Court shall think fit to order, and the Court shall thereupon diroct an Issue or issues to be tried by a jury as to any fact or facts, or, should no fact be in conteot, may decide the mat- ter upon the case stated, and for the purpoRen HforcHnid may make nil HUch orders as the Court shall think fit. nnd the deoiHion of the Court finally upon the matter shall be conclusive on the parties and on Vac Ilegistrar-General nnd commlssionerH, and the costs of every Iiroveeding under this section shall bo borne by the party finally unsuccessful." H.TOR.CAS. — 6 82 TORRENS CASES. proceeded on the aHumption of the continued existence of the caveat. In holding that it waH competent for an appli- cant to waive tlie lapse, their Lordships do not under- stand that they are differing from the learned judgew in the Court below. In Phillips v. Martin ^ the facts were very similar to those in the present case, with the addition that issues had been settled on the cases stated and had been tried by a jury, who found against the applicant, and proceedings had then been taken un9u<'- cessfully for a new trial ending in an appeal to this Board. In the course of his judgment on that case the Chief Justice said : " Here there is abundant evidence of waiver, and it is quite clear that a man may by his conduct waive a provision of an Act of Parliament intended for his benefit. The caveator was not brought into Court in any way until the caveat had lapsed. And now the applicant, after all these proceedings have been taken by him, after, doubtless, much expense has been incurred on the part of the caveator, and after lying by and hoping to get a judgment of the Court in his favour, asks the Court to do that which, but for some reasons known to himself, he might have asked tne Court to do before any other step in the proceedings had been taken. I think he is altogether too late. It is to my mind a clear principle of equity, and I have no doubt there are abundant authorities on the point, thai equity will interfere to prevent the machinery of an Act of Parliament being used by a [•433] person to defeat equities which he has himself raised, and to get rid of a waiver created by his own acts." Their Lordships agree with these observations of the Chief Justice, and think that they apply to the present t'jie, notwithstanding that the respondent did not think fit to obtain a decision of the Court on the case which he had compelled the present appellant to state. Mr. Justice Windeyer distinguished the case of Phillips v. Martin ^ from the present case on the ground that the case has not gone so far as it went in Phillips v. Martin.^ The learned Judge said : " In Phillips v. Martin * the Ml N. S. W. L. R. 153. WILSON V. M'INTOSH. 88 applicant brought the case before this Court, and ob- tained a decision, and from that decision he unsuccess- fully appealed to the Privy Council, and that case was decided upon the clear principle of law that, where, although the Court has no jurisdiction, the parties havo allowed it to exercise jurisdiction and to go to the length of pronouncing judgment, the unsuccessful party cannot then turn round and deny the jurisdiction of the Court. That principle, however, has no applicatiQa to the present case." Their Lordships cannot regard these circumstances as making any difference in principle. The respondent in the present case invoked the jurisdiction of the Court to compel the appellant to state her case, and the appel lant did so, and no doubt incurred costs in doing so, and all the risk involved in showing her title. If it be once admitted that an applicant may waive the lapse, it is a question of fact on the circumstances of each case whether there has been a waiver or not. Their liord- ships agree with the observations of Mr. Justice Stephen on this part of the case. Their Lordships will therefore humbly advise Her Majesty that the order appealed from be reversed and the original motion refused with costs. The respondent must also pay the costs of this appeal. Solicitors : — Parker, Garrett 3c. Parker, for the appellant. SUPKEME COUUT, ViCTOlUA.] [17 V. L. R. 108 (1891) ; [Also Reported 12 A. L. T. 207. In re ANNAND. Tromsfer of Land Act, 1890 f No. 1149), s. 145— Practice — Pro- ceedings to remove caveat — Costs. Th;; oommittee of a lunatic resident in England had posfcr given to him bjr t*"«? English Courts to sell the property of the lun»- tic in Victoria, x'he next-of-kin of the lunatic lodged a caveat to prevent any dealings in respect of the land. The attorney-und«r- power of the committee of the lunatic applied by way of motion to have the caveat removed. 84 TORRENS CASES. Hold, that the attorney-under-powcr was entitled to make the application, and that ^he next-of-kiu had no power to lodge th«.> caveat. Proceedings under Sec. 145 of the Act may be taken either by way of motion or by summons. The Full Court has power to deal with the question of uostu in proceed- ings to remove a uaveat. This was an application by motion to remove a cav- eat under Sec. 145 of the Transfer of Land Act 1890. The application was made on behalf of the attorney under power for the committee [*109] of one George Annand, a lunatic. The committee had been given power to deal with the real estate of the lunatic by the English Courts. The caveators were the next-of-kin of the lunatic. Weigall, in support of the motion. Hayes to oppose on behalf of the caveators — These proceedings should have been taken by way of summons, and not by motion. By Sec. 145 of the Transfer of Land Act, 1890, a person may, "if he think fit, summon the caveator to attend before the Supreme Court." The practice has never been clearly defined. Weigall : — The practice has been to proceed by way of motion. The proceedings may be by motion or by summons, and if the caveator receives due notice to appear, and does appear, then the Court may deal with the application. Counsel referred to ex parte Vincent.^ Per curiam. We think that the caveator may be brought before the Full Court either by a Judge's sum- mons or by a notice of motion. A notice of motion or a summons will serve " to summon " the caveator before the Court within the meaning of Sec. 145. We will heai the application. Weigall in support of the motion : — The caveators had no power to lodge a caveat. They claim to be the next-of-kin of a living person ; they have no interest which could possibly be the subject of a caveat. Tne only persons who can lodge a caveat are beneficiaries and those who claim an interest in the land. 1 8 A L. T. 18i. In rt ANN AND. 85 [Counsel was stopped by the Court] Hayes : — The committee cannot apply to remove the caveat, as he is not the proprietor of the land, and does not come within the meaning of Sec. 145. I cannot con- tend that the caveators have any interest in the land, or that they are beneficiaries. Per curiam. [Higinbotham, C.J., and a'Beckett and Hodges, JJ.]. — We think that the applicant has a right to take steps to remove the [•110] caveat, and that the caveators had no power to lodge such caveat. The motion will be granted, with costs. Hayes : — The Court has no power to order costs. Weigall : — Under Sec. 145 the Court may make such order as may be just, and that would include costs. Sec. 218 makes the Kules of the Supreme Court applicable to proceedings under this Act, and by Order LXV., r. 1, the applicant would be entitled to costs. [Higinbotham, C.J. — There appears to be no express power to give costs. It is very desirable that the prac- tice should be settled definitely.] Cur. adv. vult. Higinbotham, C.J., delivered the judgment of the Court. [Higinbotham, C.J., a'Beckett and Hodges, JJ.] — This was an application on motion by notice to remove a caveat under Sec. 145 of the Transfer of Land Act, 1890. The motion was granted ; the question of costs was reserved. In the case of the Caveat of Turner,^ it was held by Williams, J., upon an application to remove a caveat under the corresponding section of the " Trans- fer of Land Statute " (No. 301), that as no provision for costs was made by that section, a Judge had no power to grant costs on such an application. We think that that ruling cannot be upheld. By Order LXV., r. 1, it is provided that "subject to the provisions of this Act and these Rules the costs of and incident to all proceed- ings in the Court, including the administration of estates and trusts, shall be in the discretion of the Court." It s? A. L. T. 75. 86 TORItENS rAfiu oxpunded considerable money in improviuK them ; alin transferred lot 7 to him for the nominal consideration of £5, and ho became registered jiroprietor of it. In a suit for the adminis- tration of the intestate's estate : — Held— That both lots were subject alike to the trusts of the administration ; that the agreomeut before marriage wos void under the Statute of Frauds, ond formed no valuable consideration for the transfer of lot 7, and that the transferee was not protected by Sec. 50 of the Transfer of Land Statute (No. 301). 8emble— Tiie practice of the OflRco of 'J'itles of endorsing o" a certificate of title issued on a voluntary transfer a reference to- the liability of the title to be defeated by creditors of the trans-, feror ia wrong. The wi.'p allowed leave to answer separately. Suit by the children of Alexander Crow deceased intestate a|]:ainst his widow and administratrix, Mary Anne Campbell, who had married again, and Alexander Campbell Iv husband, for the administration of the estate o^ < .» estate. The w.i'fc obiuined leave to answer separately. Alexn Tiler Crow was tenant of lot No. 7 of sec. H, Ballarat, on wu rh t. ^e was an hotel ; and owner in fee and registered propiietor of an adjoining lot No. 6, on which there was a billiard room used with the hotel. Both lots were held under the Transfer of Land Statute (No. 301). In 1877 he died leaving a widow, the defendant, Mary Anne, and eight children, the plaintiffs. The widow carried on the business as her own, and in July, 1878, took out administration [*187] to Crow, and paid his debts, funeral and testamentary expenses. She then purchased the fee of lot No. 7 for £650, securing the payment of the purchase money by mortgaging lots 6 and 7, and became the registered proprietor of both, subject to the mortgage. On 29th March, 1880, she married the defendant, Alexander Campbell, who owned comparatively' large property. The hotel business and premises were then in a bad condition. Campbell asserted that before marriage he had a conversation with Mrs. Crow, and on her telling him that everything about the hotel was hers, and about the purchase of the hotel and mortgage, he entered into an oral agreement with her to marry her and spend his CROW V. CAMPBELL. 89 own money in putting the place in repair and paying off ttie mortgage, he getting lot 7 and tlie hotel for him- self, lot G being held by Mrs. Crow clear of the mort- gage, for the benefit of Crow's children. She, as witness for the plaintiffs, said there was no contract, but merely a conversation as to her pecuniary aifairs. The hotel was worth about £1,000. After the marriage, the defen- dant Alexander put the hotel in repair, bought some new furniture, carried on the business, and had the license transferred to himself. At the end of January, 1882, the value of the hotel was more than £2,000. On the 9th February, 1882, a transfer of the hotel under the "Transfer of Land Statute" (No. 301) was made to Campbell by his wife as for the expressed con- sideration of £5. The mortgage was paid and a certificate of title to lot 7 was issued to Campbell and of lot 6 to his wife. Quarrels arose between Campbell and the plaintiffs, and about January, 1884, Mrs. Campbell left the hotel and got her solicitor to demand a separate maintenance. The plaintiff's solicitor then claimed that the properties were to be regarded as having been held by the admin- istratrix in trust for herself and the plaintiffs, and the bill sought to enforce that claim. Mr. a'Beckett and Mr. Neighbour, for tlie plaintiffs: — The alleged contract relied on by Campbell is not a sufficient consideration for the transfer by his wife to him, it was an ante-nuptial conversation only, and not in any sense a contract. But even if it were a contract, it was not in writing and, therefore ["188] void under the Statute of Frauds, and could not form a good con- sideration for the transfer. Warden v. Jones ;^ besides it was a contract between an intending husband and wife to the detriment of the wife's children by her former husband. The transfer states the consideration as £5, whereas the value of the property was over £2,000. The under- standing to pay the mortgage (£650) does not make a i2De6. &J. 76. 00 TitRHKNS CASKS. good coiiMi(lt>ration : In re " Tht? Land Tax Act, 1877," ex parte* Finlay.'' When allotment No. 7 was purchased by Mrs. Gamp- bell, by means of moneys raised on the security of the intestate's estate, it became part of his estate. Camp- bell acquired no right in th<» property by reason of the marriage, as it was after tlie Married Women's l*roperty Act (No. 384) ; besides, she was administratrix : Bright on Husband and Wife, vol. I. p. 39. We ask that allotments Nos. « and 7 may be sold, and the shares of the adult children paid to them, and those of the infants invested. Past maintenance may be set olT against past income. As Campbell has asserted a claim which he cannot maintain, he should pay the costs of the suit. Mr. Topp, for the defendant, Mrs. Campbell. It lies on Campbell to prove that he is a bona fide holder for value without notice of the trusts of the administration, and he has not done so. The recital that the consideration for the transfer was £5 is false, and a false recital is one of the strongest indicia of fraud. Mrs Campbell, as in Keed v. Buck,* had no legal advice when she made the transfer. She acted solely on the directions of her husband. [Mr. Jus- tice Molesworth — If a married woman, having separate property, gives it to her husband, am I to decide whether she was a fool or not in signing it away ?] Mr. Higgins, for the defendant, Alexander Campbell : This is an attempt to get back property which has become more valuable since its transfer. The plaintiff's argument rests on the assumption that t^e contract is executory, for the Statute of Frauds applies only to [*189] executory contracts. But it is not so, for Campbell is the registered proprietor under the Transfer of Land Statute (No. 301). There was nothing on the register to show him that Mrs. Campbell was an administratrix, and, as there was 2 10 V L. R. (B.) 68 3 10 V. L. R. (E.) a3. CHOW CAMI'HKLL. 91 no' fraud, he it) protected by the Trunsfer of Ijand Htatate (No. :J01), Heo. 5». [Mr. JuBtlte MoleHWorth :— A wotiian who is the re^iHtered proprietor of land (her title beinK only as an administratrix) marries a man who does not know she is an administratrix. If it had been her own it would continue to be so after the marriage, and if it so continue, is there anything to prevent her aflslf^niuK it to \wv husband ? Would the operation of the Transfer of Land Statute apply ?] I apprehend the statute would apply. It places him in snch a capacity that he can contract with her as though she were a stranger ; and under the Married Women's Property Act (No. 384) it is quite competent for them to contract, although there be no valuable consideration. The wife willingly allowed the license to be transferred to her husband's name, which supports his contention as to the ante-nuptial agreement. In this case the false recital of the £5 consideration is not an indicium of fraud, as it arises merely from the practice of the Office of Titles in requiring some pecuni- ary consideration to be stated. The office will not recognize a title as absolute unless some money c(m- sideration be inserted : a'Beckett, Transfer of Land Statute (2nd edition), 119. [Mr. Justice Molesworth : — That seems rather an odd course for the office to pur- sue. Does the office hold that a voluntary settlement of land cannot be registered as passing the title?] They endorse on the certificate of title, " Subject to the pos- sibility of the transfer being upset under tlie Insolvency Statute, 1871, and the Statute of 13 Eliz. c. 5." [Mr. Justice Molesworth : — Is it only with reference to those Acts that that is inserted ? Do they allow it to have operation as a transfer ?] They merely say that the statute will not protect a settlement for which there is no money consideration. [Mr. Justice Molesworth : — Then they are wrong, because the certificate would equally give no title against a subsequent purchaser for value. I do not see why the office should take upon itself to protect one class of Interests and not another. It ought to [^190] do one thing or the other.]. In War- 98 TORUKNS CASKS. den V. JonoH * tluTP wan no part performance, and the setthinent waH Ih>I(1 void uh fraudulent ngainHt ercdi- torH. [Mr. JuMtico Molewworth : — Then* Ih one part of the earn* which Iuih been overloolied, vix., as to tlie buHinettii This Ih tlie caHe of a woman having; taken out adminis- tration carrying on buHineHg after the inteatate'u death. If the plain titTH succeed as to tlie hotel, have they not a right to succeed also as to the buginess ?] The plain- tiffg do not aslv for that, but only for the land and furni- ture. The licenge hug been transferred into Campbeirs name. [Mr. Justice Molesworth : — I think she intended to give Campbell everything, but the question is whether she could.] Hhe was only a constructive trus- tee of lot 7, it was not purchased with moneys of the estate. 8he undertook the risk of mortgaging part of the estate, but that mortgage has now been paid off, and the estate has sustained no loss. Campbell is quite willing that there should be an inquiry as to the rent of lot No. 6, for he has spent more money on it than has come out of it. If the business does not belong to him he is entitled to an inquiry as to the mainteuance and education of the children. Mr. a'Keckett in reply : — The practice of the Office of Titles is as alleged ; but whatever equities would attach to the property when in the transferor would attach to it when in the transferee. In Chomley v. Firebrace'' your Honour held that where the transferee was innocent of fraud he was protected by section 50 of the Transfer of Land Statute (No. 301), but the Full Court held that if the fraud were in the transferor, it was sufficient. There must be distinct evidence of the ante-nuptial agreement before the Court will act on it : Alderson v. Maddison.* Cur. adv. vult. Mr. Justice Molesworth : — Mr. Alexander Crow car- ried on business as keeper of the St. Mungo Hotel, « 2 De G. & J. 76. 5 5 V. L. R. (E.) 57 e7Q. B. D. 174. VHOW V, rAMI'llKUu \Y.\ Itallnriit ; ho whh tenant of lot No. 7, b(>c. II, und acquired the freoliold of an udJoininK lot, No. <(, on which tticre [*1])1] whh a billiard room iiHod with N(«. 7. lie died November, 1877, leaving a widow — the defend- ant Mary Anne (now the wife of the defendant, Mr. Campbell) — and ei^ht children, the plaintitTM. The widow treated the property aH her«, carried on the buHl- neBM, maintaining herHelf and family, except the oldest Bon, Alex. Brown Crow, who was in a railway office sup- porting himself from 1870. Bhe took administration to her husband in July, 1878, representing his real property as under £200, his personal as under £200. 8he paid all his debts, funeral and testaimentary expenses. Hlie purchased lot No. 7 from the landlord for £050, securing that price with in- terest at 10 per cent, by mortgaging Nos. and 7 to Deveson. Under the Act, No. 301, she was proprietor of both, subject to the mortgage. Slie married the defendant Campbell on 2})th March, 1880, who also car- ried on an hotel business and a trade in coal and wood at Haddon, and had comparatively large property. She, as witness for the plaintiff, says that there was no contract before their marriage ; that he made some inquiries as to her pecuniary position. He says that she said that everything about the hotel, etc., was hers, that she had bought the hotel, but did not pay for it, but gave it and the billiard room as part security for the price ; that she said she was a little in debt, £70 or £80 ; that he said that if he married her, and came and spent his money putting the place to rights, he must have the hotel in his own name, not hers. She said he should have that, but she should like to have the billiard room for the children ; that he said she should have it clear of the mortgage. She expressed thanks, and he said he would not have it transferred until the mortgage was up ; that they discussed the discretion of her having purchased the hotel ; that he told her that the hotel was not fit to live in as it was ; that she said that she had no money to repair it ; that he said that it would take much money to repair it. She said «l 94 ruHHUXS VASKH. tliiit if It WiiH |>nr v\\i\\\ It would Improve (h<> biiMlneM very uiiirh, aii«l that mIic wiih iloiii); no huNin«>HM iu the llOIIH(> th«>ii. In fuel, from tlio (>ntin' ovidcnci', [ would \nn.y that tho i.iiHlnt'NH wiiH doint; badly. Hh«> had Hold tlM> billiard table for tHO, owed Home, not eouHiderable, biiHliieMN nhd other debtH, and the hot<>l wan worth about £1,000. Hubje<'t to th(> mort^tiKe for HVSi). [*\\)1\ He |»iit in Home furniture bef(»re, nior(> after, the nnirriaKe. lie from the marriage aited an mnnter of the pro|H>rty, carried (ui the bunineHH in all import- ant pointH, and had the lieenne trannfernMl to hlni. Hhe and her eldent dau);hter f;enerally aeted at the bar, and Hhe k(>pt the ur«'OuntH, mixing the reeeiptn at the bar with other moneyH paHHin^ through her handn, helped hernelf at dineretion, d(>fray(>d all small houHe and family exp^'unen, mixed tojjether, aM mi^ht have been expected if h(» nuirried tvuother woman aoruBtomed to Huch bunineHH, and took the mipport of her family. All the bar takini^H were put into a till, which he emptied and lod);ed to bin general bank account. He quarrelled with one of the plaintiiTH, Louin, the second Hon, and sent him out to support hiniRelf. He expended much money, he says over £400, in improving? the hotel. Its business increased. At the end of January, 1882, the value of the hotel had Increased to more than £2,000, the furniture of 1880 had been Kenerully laid aside, and other and better had been substituted. There had been some disputes between Campbell and his wife. He complained of extravagance, talked of being driven to the Insolvent Court. On 29th January, 1882, for the first time, the plaintiff, Alexander Brown Crow, had a dispute with Campbell In her presence. Campbell said the place was his and he would allow no Interference with It. The son said otherwise, and that Campbell could not pretend to have bought it by an outlay of £150. The mother heard them, and took no part. About that time Campbell, as he says, according l» the pre-contract, called upon his wife to transfer the hotel to him. Bhe says she did not understand tbe rlinn' r. rAMt*HKLL in(>uiiliiK of th«> traiiMfiM', which, In fact, wum iiiadt* on Uth Fcbnmiy, 1H82, iiiiih'r thr A«t No. :i01. Mr. Mann. 4/amph«>irH Mollrltor, pn'parcd it by hU tnMtniclionH. It waM aM in roiiMidrrallon of in. An brought to hvv it in ('IihI<'aiii|>b<>li'M vrrHion of \\\o aKi'<'<'i»<'nl, l)U( aiimitllnK explanation from Mann, bcinK informed by the deedH, which mixed Hie proptT- ticM. Tlie wife olijected to the tranMfer of lot (I, Maying Mhe thouKlit it waH to be left for the children, which MupportM CampbeirH verHittn of the pre-contract ; and, in fact, the mv^rt^aKo to lh>veHon waM paid, the certitl- cat<> of title to lot No. 7 waH iHHued to <*ampb«'ll, and of No. (t to hiH wif(> [*li)>t], and the manner of di'ulin^ with the hotel, etc., waH rcHunied. Hut their diMaKn>e- luentH increaHed. (>ampbell complained that he did not get all the mon<>y which went or Hhould have );one to the till, and ulthnately, about tlunuary, 1HS4, ho ordtM'ed the oldeHt daup;h(er to leave the bar. The wife with- drew from it and interferenc(> with the hotel, : id ^ot a Holicitor to write to Campbell demanding a separate maintenance from incompatibility of temjier of them- Helves and their respective children. Another Holicitor, actinfj; for the plaintitTs, put forward their claim to the propertlen to be regarded as u trust by tlie administra- trix for the plaintiir, Alex. B. Crow and tlu? infant children. That (rase is sought to be enforced by this bill. 1 think that the widow, using lot No. G as she did for acquiring No. 7, would make Nos. 6 and 7 alike subject to the trusts of administration alike. I doubt whether Campbell should take subject to such trusts, If the property were conveyed to him without regard to the Act No. 301. There is no direct evidence that he knew she was the administratrix. He knew that <^row had occupied both the properties, that she had suc- ceeded him, and had mortgaged lot No. 6 to buy No. 7. Hut married women having property independent of their husbands is now a common thing here ; and even if he inferred that she derived from Crow, it would not follow that she took it as his administratrix, it might as probably be as her devisee. Her treatment of the pro- 96 TORRENS CASES ^f* perty was quite contrary to her duties as admiDi8trd by him, giving credit for sums received for interest upon such mort- gages. Held— That these documents were sufficient evidence of the trust, notwithstanding the Statute of Frauds, and were adnais- sible in evidence against persons claiming as assignees from him. after his death, as being admissions by a deceased person against his interest. The "Transfer of Land Statute" (No. .301), 8. 50, should be construed strictly, its exceptions liberally. Fraud in that section ap- plies equally 5n the cases of fraud by a purchaser, and by a vendor. Suit by A. W. Chomley and H. J. Henty, tnistcea of a settlement, 29th September, 1862, againsv Anne Fire- CHOMLEY V. FIRE BRACE. 09 bracf iind Robert Tarver Firebrace, seeking for a declaration of title to certain mortgage securitiea trantt- ferred by E. J. Murphy to the defendants. By indenture of settlement of the 29th September, 1S62, upon the marriage of Mary Martha Murphy and John Steavenson, a sum of £5,000 was vested by John Robert Murphy in Edward Joseph Murphy and John Terry Murphy, upon trust to invest and pay the income thereof to M. M. Murphy for life, and, after her death, to J. Steavenson, for hie life, and after the death of the sur- vivor, upon certain trusts for the benefit ot the children of the marriage ; and, if there should be no child, in trust for J. R. Murphy, with power for the trustees at the request of M. M. [*58] Murphy to sell any investment and hold the proceeds upon the like trusts. The power to appoint new trustees in the event of the death of any trustee was exercisable by M. M. Murphy by deed ; and, thereupon, the investments and estate should be trans- ferred to and vested in the new trustees, and the receipt of the trustees for any securities transferred or money paid to them should be a good discharge. The marriage took place on the 30th September, 18()2. J. T. Murphy died on the 27th July, 1872. No new trustee was appointed; and all moneys of the trust were subsequently invested in the name of E. J. Murphy alone. By an indenture of mortgage on the 17th April, 1874, Richard Youl and Joseph Anderson Panton conveyed certain lands in the county of Evelyn (subject to a prior mortgage to John Manifold to secure £10,000) to E. J. Murphy, to secure £2,000 with interest at 8 per cent.; and the same sum and interest was also secured by a mortgage of that date under the Transfer of Land Sta- tute from them to E. J. Murphy of certain other lands at the same place, and subject also to the mortgage to Manifold. By an indenture of mortgage of the 1st October, 1874, Thomas Wykes Hall conveyed certain lands at Kyneton to E. J. Murphy, to secure the sum of £1,000 and interest at 8 per cent. By an indenture of mort- gage of the 7th October, 1874, Thomas Bathie Reid con- 100 TORKENS CASE'S. veyed certain lands in North Melbourne to E. J. Murphy^ to secure £400 and interest at 8 per cent. These three sums of £2,000, £1,000, and £400 formed part of the settled estate, and the interest on these mortgages was duly accounted for and paid to Mrs. Steavenson by E. J. Murphy. By three indentures of the 28th October, 1875, and by a transfer under the statute, E. J. Murphy trans- ferred the beforementioned securities to the defendants for the considerations of £2,012 5s. 5d., £1,006 28. 8d., and £402 9s. Id., respectively therein expressed to have been severally paid by them to him. The bill alleged that in fact such sums were not so paid, and that the indentures and transfer were executed without consideration, for some fraudulent purpose of E. J, Murphy's, without the knowledge or consent of any of the persons interested under the settlement. The bill also alleged that the transfers were not [*59] executed in pursuance of any contract or dealing with the defendants, and that they were prepared by E. J. Murphy himself ; and charged that the defendants had, through him as their solicitor^ notice that the execution of the transfers was without any consideration, and fraudulent against the persons interested under the settlement and a breach of its trusts. E. J. Murphy committed suicide on the 30th October, 1875, and died intestate, and in insolvent circumstances. On the 25th November, M. M. Steavenson appointed the plaintiffs new trustees of the settlement. The Curator of Intestate Estates obtained a rule to administer the estate of E. J. Murphy, and delivered, 2nd December, to the defendants the several transfers of the three mort- gages. The plaintiffs filed this bill for a declaration that the transfers were without consideration, and fraudulent, and for the execution of re-transfers to the plaintiffs. The defendants, who for many years resided in Eur- ope, by their answer stated that they were the trustees of the will of the late Wm. Firebrace, and that E. J. Murphy acted for many years as their attorney, under CHOMLSY V. FIREBRACE. 101 a power which did not authorize hira tu prepare deedti or otlierwise act as their solicitor ; that at the time of the transfers Murphy, as such attorney, had large sums of money of the defendants in his hands for invest- ment ; and that the considerations for them were paid thereout, it being his duty to invest such moneys. The evidence is fully stated in the judgment of His Honour Mr. Justice Molesworth. Mr. Holroyd and Mr. a'Beckett for the plaintiffs : — The defendants are mere volunteers, and therefore are in no * atter position than E. J. Murphy . No considera- tion passed from the defendants to the plaintiffs upon the transfer of the mortgages. The estate may there- fore be followed into their hands. Lewin on Trusts (6th edition), 699 ; Spurgeon v. Collier,^ Mansell v. Mansell,^ Thorndilce v. Hunt.* Further, the transfers were made without the con- sent of Mrs. Steavenson, and therefore Murphy commit- ted a breach of trust. The defendants had constructive notice thereof, through him as ['60] their solicitor and attorney under power, and are bound to replace the loss •occasioned by such breach of trust, Boursot v. Savage,* Atterbury v. Wallis.' One of the mortgages being a second mortgage was of an equitable interest only, and therefore the defendants would take subject to the equi- ties, Stackhouse v. Countess of Jersey.' The evidence is clear that the transferred securities formed part of the estate of Mrs. Steavenson ; the admis- sions of E. J. Murphy being against his interest are admissable evidence, Taylor on Evidence (7th edition), 580; Wool way v. Rowe.' It is admitted that the trans- action was within the authority of the power of attoi- 11 Ed. 55. * 2 Pr. Wms. 678-680. S3 De 6. & J. 563. « L.B., 2 Eq. 134. > 8 D. M. & O. 454. • 1 J. & H. 721. 71 A & E. 114. 102 TORRE NS CASES. ne.v, had tliert* been no qucMtinn raised as to tlio ri^htH of the pIuiulilTH. Mp. Lawes and Mr. Webb for the defendantH: — As- Hnniiug that a fraud was committed by E. J. Murpliy, there are two innocent parties, one in possession now of the subject matter and the other not, and the iatter should suffer. The evidence is insufHcient to show tliat the securities formed part of the Steavenson trust estate. It consists of statements and entries by a person guilty of gross fraud, made in respect of plaintiff's businesH. It cannot be used as against these defendants. Murphy's clerk's statement is not evidence ; Fairlie v. Hastings.'* Murphy's admissions may be good evidence against him- self, but not against third parties, as these defendants. His admissions are virtually for his interest, sis dis- charging him from liability to invest, and therefore are inadmissible. The defendants had no notice, construc- tive or otherwise. Murphy was guilty of a fraud, and therefore no notice should pass through him, Kennedy V. Green ;" Waldy v. Gray.^" If the Court is against the defendants no costs should be given Waldy v. Gray.^' [Mr. Justice Molesworth — In this case the defendants are trustees, there is no personal liability on them if unsuccessful ; there is a trust fund out of which they will be indemnified.] In Boursot v. Savage,* there was an actual [*G1] knowledge of such facts as should have put the party upon inquiry. [Mr. Justice Molesworth — There is a popular view that may be taken of this ques- tion, i.e., if the assignment to the defendants be set aside, they will be none the worse off. Murphy was their debtor at his decease, and they did not give any- thing for these securities. They will only be deprived of benefit which they have accidentally obtained. It would have been different if they had been acting upon the siipposition of having those securitiet, for any period, but, in fact, they did not.] Mr. Holroyd in reply. Cur. adv. vult. «10 Ves. 123. • 3 M. & K. 699, 707. 10 L. R. 20 Eq. 238. CUOMLEY V. FIREBRACE. 103 MR JURTICE MOLE8WORTH :— This \% a suit by Messrs. Chomley and Henty, the present trustees of a settlement dated 2J)th September, 1H«2, executed upon the marriage of Mr. John 8teav«*n- son and his wife Mary Martha, against Mrs. Anne Fire- brace and Mr. Robert Tarver Firebrace, the executors of Mr. William Firebrace, seeking to have certain as- signments of mortgages made by Mr. Murphy, a former trustee of the said settlement, to the defendants declared fraudulent, and to have the lands comprised in the mortgages reconveyed. Mrs. Hteavenson had a marriage portion of £5,000, which by the settlement was placed in the hands of her uncle, K. J. Murphy, a solicitor, and a co-trustee since deceased, upon trust, at the request of his wife, to in- vest, among other ways, on mortgage of freeholds, and to hold the income for her separate use for life, remainder to the husband for life, remainder to her children, remainder to wife's father, and the trustees were authorised during the wife's life, at her request, in writing, to sell and dispose of the securities for the said sum of £5,000, and to hold the proceeds on the same trusts as the original sums, and the receipts of the trus- tees were made sufficient discharges. Murphy managed the investments of the trust funds very much at his own discretion, especially after the death of his co-trustee, paying the income regularly to the wife, but taking, mortgages and payment of them without consulting her, the mortgages being to him as if for his own money, disclosing no [*62] trust. The accounts of interest furnished to her or to her husband disclosed the names of mortgagees. He kept a book regularly showing these investments and the variations of them. The defendants, who resided in England, having a large amount of money of their testator which they wished to invest on mortgages, etc., here, by power of attorney, 18th June, 1867, appointed Murphy & Mr. Edward Bell Firebrace joint and several attorneys to call in and receive debts and to invest from time to time, which they did, Murphy being the principal manager ; and 104 TORRENH rASES. he received iind kept opportunities offered the for as old debts were paid off money in his hands until re-investment. The subject of this suit is, four mortgages executed to Murphy, the two fli-st for one sum, dated April 17, 1874, by Messrs. Youl and I'anton, one of land of ordin- ary tenure, the other of land under the "Transfer of Land Statute," both of equities of redemption ; a third dated the Ist October, 1874, by Mr. Hall ; and a fourth, dated 3rd October, 1874, by Mr. Reed, of an equity of redemption. These mortgages together were for £3,400, and bore interest each at 8 per cent. Murphy owed much more than he was worth, but preserved his credit, and apparently was not pressed by creditors. He had in his hands about October 29, 1875, money of the Firebrace trust received from time to time, more than £3,500, and he then stated to his clerk, untruly, that Mrs. Bteavenson wanted to apply her settle- ment money otherwise, and directed him to prepare assignments of the above four mortgages from him to the defendants, as upon payment of sums equal to the principal, and small amounts of interest due upon them respectively. These assignments as to lands of ordinary tenure wero affixed to the respective mortgages with receipt for consideration, endorsed, duly executed by Murphy, 28th October, and the mortgage under the Transfer of Land Statute duly assigned, there being no actual or symbolic payment of money, and no communi- cation with anybody on the subject except the clerk, who, by Mr. Murphy's directions, altered the mortgage books, passing them from one list of mortgages held for Mrs. John Steavenson's trustees to the other, and in his cash book crediting tlie one and debiting the other fund as for so much cash paid, £3,420 17s. 2d. He killed him- self on the 30th, [•63] and the above deeds and dealings were afterwards disclosed to the parties interested. (Steavenson and wife and Ed. Bel! Firebrace immediately, the defendants in course of post), and reconveyances were at once demanded. The defendants insist — firstly, that there is no evi- dence against them that the mortgages were for money part CHOMLKY V. FIRKBRACE. 105 part of tin* Hettk'd £5,000, and that there Ih no written de(;laratiou of trust of them. The payment of the £5,000 iti admitted by the trustees executing the settlement, an stated generally by Mrs. Steavenson's evidence. Tlie dis posal of the £5,000 from time to time appears in the above boolc Icept by the direction and under the super- intendence of Murphy, so that there Is no doubt of the earmarlcing of those mortgages to ordinary apprehen- sion. There are in evidence documents having Murphy's name written by him ; as to Reid*s mortgage memoran- dum of instructions for its preparation, 25th April, 1875, describing the property, the sum of £400, the rate of inter- est, and the time of payment ; as to Hall's mortgage, a receipt, 22nd April, 1875, by Murphy for half year's interest on mortgage to Mrs. Steavenson's trustees up to and ending 1st April, 1875 ; as to Youl and Panton's mortgages, a receipt, 16th July, 1875, for a quarter's inter- est on mortgage to Mrs. J. Steavenson's trustees up to 1st July, 1875 ; as to Youl & Panton's mortgages, a letter 20th July, 1875, Murphy to Steavenson, with a cheque for £oO on account of Mrs. Steavenson's income for the July quarter, accompanied by an account signed by Murphy, giving credit amongst others, for the interest to Ist Jur^', received from Youl and Panton ; and there is further a letter, 18th October, 1875, from Murphy to t^teavenson, enclosing Mrs. Steavenson's income account for quarter ending 1st October, with a cheque for amount to credit. The accompanying account signed, by Murphy, giving credit amongst others for Youl and Panton's interest, Hall's interest, and Beid's interest, 18th May to 1st October, 1875, (which last was payable on that day, but which he had not in fact received). These documents appear to me to be sufficient evid- ence of the trust. They are admissions by a de- ceased person in the ordinary course of business, by a person through whom the defendants claim the mort- gages ; and I think, as against the interest of [*64] Murphy conflicting with his apparent right to the mort- gages for his own benefit. I have been pressed with argument that these were not statements against his lOG TORRKNS CASES. InteroHt, ah thoy tcndod to diMoliArgc lilni from a Ha- bllit.v to invest. Hut in tlioMe vixsvn of iulniiHHionH on»' nii^ht K<'n<'rall.v find HonietliinK wliicli could 1m> regarded an favourable to tlie imm-hoii nialcinK tlieni. If tlie money iH Muftieiently earmarlied, it being applied would consti- tute a trust, notwithstanding the Htatute of Frauds. We have Murphy, then, for some motive of prefer- ence not disclosed in evidence, attempting to apply pro- perty which he held upon one trust to discharge his debts as a defaulter upon another trust. Murphy miglit in one capacity deal with himself in another. If he wut, in no default, and had Mrs. Steavenson's consent, it would be a legitimate transaction to buy her trust securities with money of the Firebrace trust in his hands and keep it for her trust, and worlc tlie transaction by deeds of assignment sucli as he executed, and the application of the Firebrace trust money would be sulticient considera- tion for tlie assignments to the defendants. But the plaintiffs insist tluit Murphy, as solicitor, acted for assignor, himself, and assignees, defendants, in the assignments of 28th October, 1875; that he was guilty of breach of trust in disposing of the mortgages without Mrs. Steavenson's consent and appropriating ^he proceeds to his own use, and that through hiiri, the defendants should be deemed to have had notice of this, and cannot Iceep the benefit of the assignments. In fact, the defendants had no mind in the matter, they were re})resented by a mind fully informed of the fraud. There are old authorities which would fully sustain this argument, for instance, Sheldon v. Cox," where even a registered deed was held to lose its priority. But a dis- tinction has been regarded in modern cases, that where a solicitor is guilty of fraud personally, he should not be supposed to communicate the facts to a subsequent purchaser, and should not affect him with notice : Ken- nedy V. Qreen,^2 Atterbury v. Wallis,^^ Boursot v. Sav- 11 2 Eden. 224. 12 3 M & K. 699. 18 8 D. M. & 6. 454. CUOMLKY •-. t'lREHRACK. 107 age,'* WiiUly v. Oray,'* Hut thin [•05] diHtlnrtioti, again, iM qiialitlcd in Huiiic of tlH'M«> niMCH by Haying tliat if nn iint'onuiM-tcd Bolicltor iMnploycd In tlic Mccond tranHao- tiun would have diHcovcrcd the fraud, notice Mhould be attributed to the purchaHer In It. Ah to the preHent «aHe, If a Hollcitor other than Mur- phy had acted for the defendautn, he would In the ur- dinary courM<' of dealing have applitHl to the uiortga- gorM for infornuition aH to their HiilmlHting liability. (Hod Hugden on VendorH and PurchaBerH, 1!>7), alwo, ptM'hapa to give notice of tin* intend(>d aHHignnu>nt. If ho, he would probably liave learned from them of the trtmt of wliich they were inftu-nied. In thin view the plaiutiffd Hhuuld have priority. There in a view which haH been pressed upon n»y niiud, upon which I have not been able to tind author- ity, perhapH from tlie circumstances of the case being very uncommon, that the defendants. In fact, gave noth- ing for these assignments, never acted upon them before they were apprised of the bif'ach of trust. If the a8Hi<;u- uients were set aside they would be in no worse position than If they had never been made. In u case having some resemblance to the present, Thorndike v. Hunt,'" where a trustee had brought Into the credit of a cause a sum for which he was liable for one trust, money pro- duced by breach of another trust the beneflchu'ies in which sought, after an interval, to have the money replaced, and were refused, the Court noticed that those entitled under the former could not be reinstated in their position before the payment into Court. In cases where banks claim the benefit of securities de- posited, as transferees of them, they have to show that they acted upon the faith of the deposit. I do not attach importance to an argument for the plaintiffs that several of the mortgages were of an equity of redemption. Unless one of litigating parties " L. R. 2 Eq. 134. » L. R. 20 Eq. 238. i« 3 De O. & J. 563 10H TOHRKSS CA.^KS. hni got ft legal eMtnto, thr rlRlit to call for a convoyanct' of it Htanda, I think, In thu muiuo poaition an a legal estate itaelf would. Aa to all these mortKaKea of landa of ordinary tea- ure, I am prepared to d«*cree for the plulntifrs, with con- ■Iderable doubt. But an to the mortgage of landa held under the "TrauHfer of Laud Htatute " (No. 'Ml), by Youl and I*anton, It ap|)earH to nie that [•««] Hec. 50 protects the defendants' title. The matter has not l)een noticed in pleading or argument, and I presume that the value of this property Is small. I shall hear further argument on the subject if reipiested, and defer the formal making of my decree for the purpDse ; also for the parties to consider if the defendants should Ke required to account for interest on the mortgages re- ceived, or if ft sum can be fixed. I think, on the whole, that costs should be given, as usual, to the parties suc- cessful in litigation. The defendants being trustees should not, I think, as between the plaintiffs and them, make any difference ; they will be probably entitled to an Indemnity out of a trust fund for which they hav«' fought a separate battle. On this day further arguments were heard upon the question raised in tlie judgment, touching the mortgage under the «' Transfer of Land Htatute," 8ec. 50. Mr. Holroyd and Mr. a'Beckett for the plaintiffs : — There is but one debt, though several securities are held for it ; and he who is entitled to the debt or to whom It is due, should also hold all the securities. By tb« proviso to Sec. 59 of the "Transfer of Land Statute," the defendants are trustees for the plaintiffs, of the security under the statute. There is notliing in Sec. 50 against the right to follow a trust fund into the han'^" of a volunteer. The amount of interest can be fix without a reference. Mr. Lawes and Mr. Webo for the defendants : — Tlie equities are equal, and the fund should therefore be apportioned. Sec. 50 protects the defendants, who had no notice of Murphy's fraud. They themselves are not guilty of fraud. CHtKVr.KY I. FIRKBRArE. 100 Mr. Ilolro}' nonr axaiDif till' plniiitifTM. ThiTi' In one debt ouly, and It cannot bt* iipportioned. Cur. ndr. vult. MR. JI'HTR:K MOLKHWORTH :— I think that Murphy had rocdvt'd mimcy of tht* dcfpu- dantM to invoit, invested a ■mailer Huni by making aMHl^nuientH uf four [*A71 mortKAget na for the defen- dnntH, and that they nilKht consctentlouHly retain tlietie aHHl^fniuentn, if they were not affected with notice that Murphy, in making tliern, was committing a breach of ti-UHt aH to the Hteaveuson's. For the reaHouM I havo already stated, I think that as to lands of ordinary ten- lire the defendants should be deemed to be ho affected, because they would liave got notice if they had em- ployed an unconnected solicitor. But the policy of the Act No. 301 is to facilitate persons in dealing in land and mortgages, to act without solicitors, and reading Hec. no in regard to that, it, I think, protected the defen- dant h HO far as regarded land under that Act ; and that the defendants should be left the full benefit of their seoiirity for £2,000 upon land under the Act as far an they are assignees of Youl and Ponton'H mortgage. Declare that the transfers of the mortgages in bill lirHtly mentioned from Richard Youl and Joseph Ander- son Panton and of the mortgages in bill mentioned from Thomas Wykes Hall and Thomas Babtie Reid respec- tively executed by the said Edward Joseph Murphy to tlie defendants Anne Firebrace and Robert Tarver Fire- braoe, should be deemed ineffectual in equity us against tli» plaintiffs Arthur Wolfe Chomley and Herbert James Ilt^nty as trustees of the indenture of 29th September, tH62, in bill mentioned ; but that the transfer of the mortgage in bill secondly mentioned from said Riohard Youl and Joseph Anderson Panton of land under the " Transfer of Land Statute " to the said Edward Joseph Murphy < xecuted by him to the said defendants, should be valid and effectual, and the force thereof as to last- mentioned lands not affected by the directions herein- 110 TORRENS CASES. after coutained. Order the said defendants to execute proper transfers of the Arst-nientioued mortgages to the plaintiffs as such trustees as aforesaid at the said plain- tiff's expense (to be settled by the Master in case the parties differ, and to deliver up to the said plaintiffs the said mortgages and all the title deeds of the mort- gaged premises in their possesHion. Order the said defendants to pay the plaintiffs the interest which they have received on account of the first-mentioned mort- gages taken by consent to amount to £. Order defen- dants to pay plaintiffs' costs of suit when taxed and refer to tax. Liberty to apply. From this decree, both plaintiffs and defendants appealed to the Full Court. The plaintiffs' grounds of appeal were: — 1. That the decree should be varied by including the transfer of mortgage from Youl and Panton to Murphy, of land under the '' Transfer of Land Statute," amongst the other transfers, by the decree declared to be inef- fectual in equity as against the plaintiffs, by directing a proper transfer of the said mortgage to the plaintiffs, as well as proper transfers of the other mortgages there- by directed to be transferred, and by directing the defendants to pay to the plaintiffs the interest (if any) received on account of the mortgage, as well as the interest received on account of such other mortgages. 2. That no consideration was given for or on behalf of the defendants for the transfer to them of the said mortgage of land under tlie "Trars _r of Land Statute" [•08] and such transfer was the fraudulent and volun- tary act of the said E. J. Murphy, and, therefore, tlie 50th section of the "Transfer of Land Statute" does not protect the said transfer. 3. That as appears by the evidence and found by the judgment of His Honour Mr. Justice Molesworth, no consideration was given by or on behalf of the defen- dants for any of the transfers by the said E. J. Murphy in the bill mentioned ; and it appears by the evidence, and by the effect thereof as stated in the said judg- ment, that all such transfers were made in carrying out CHOMLEY V. FIRE BRACE. Ill one and the same voluntary and fraudulent dealing; by the said E. J. Murphy, and the effect of the said dealing as against the plaintiffs should be set aside wholly and not partially only as by the said decree. 4. That the said decree is not certain and effectual in favour of the plaintiffs as to the transfers, and to the payment of interest to which the plaintiffs are by the said decree found to be entitled, by reason of the declaration in the said decree contained as to the said niortiiaRe, to a transfer of which the plaintiffs are found not to be entitled. The defendants' grounds of appeal were as follow«: — 1. That there was no legal evidence as against the defendants that the sums of £2,000, £1,000, and £400 respectively mentioned in the 8th paragraph of the bill, formed pait of the moneys subject to the trusts of the indenture of settlement, of which the plaintiffs are trus- tees. 2. That His Honour found as a fact that E. J. Mur- phy did invest money of the defendants' in his hands on the assignment of the mortgages in the bill mentioned. 3. That even if the said assignment were made with- out consideration, the defendants had no notice, actual or constructive, of such want of consideration, or of any fraud in relation to the said assignments. 4. That in any event the decree ought to have appro- Moned the debt of £2,000, secured by the mortgages of Youl and Panton, between the plaintiffs and defen- , 782. ■■« 2 Sm. L. C. 318. H.TOR.CAB. — 8 lU TORItENS CASES. m % tho (k'fendnntH at the time ; he paid it by the trannfer, leaving liiinself indebted to another person. The defen- dants could not repudiate the payment or investment. The actual payment of consideration was a matter for yteavenson's trustees, and not for the defendants. If Murphy made away with it, they were not liable : Bod- per V. Arch;^^ Maber v. Maber;^** Amos v. Smith.-" Ah to Sec. 50 of the "Transfer of Land Statute," fraud means actual moral fraud in the transferee, it means fraud within the matter of the Act, and not fraud ali- unde. [The Chief Justice. — The defendants had notic»* of the faicts from which fraud might bo deduced, al- though not of the fraud itself.] Notice of the fraud must be brought home to the person to be affected. Murphy could not be the defendant's agent to commit a fraud ; Robertson v. Keith.^" [The Chief Justice : — The words " Except in case of fraud " in Sec. 50 shouhl be construed liberally, and therefore if the person through whom the defendants claim were guilty of fraud, a small notice would suffice.] [*71] Mr. a'Beckett in reply : — Sec. 50 contemplates fraud by the transferror, otherwise a trustee miglit fraudulently distribute the trust property amongst strangers, gratuitously, ignorant of the circumstances. It ai)plies to the case of a person being on the register by the fraud of any person. There is nothing in the Statute preventing the defence of purchase for value without notice being set up. Cur. adv. vult. THE CHIEF JUSTICE :— In this case Mr. E. J. Murphy, a solicitor, being indebted to the defendants, attempted to transfer cer- tain mortgages to them in order to lessen his debt. No money passed : and this bill is filed by the present trus- tees of Mrs. Steavenson's settlement, to set aside the transfers and revest these mortgages in them. A decree 27 10 Ex. .S33. « L. R. 2 Ex. 158. » 1 H. .t C. 2;^8. «> 1 V. R. E.j. 11. CHitMLEY r. FIREBRACE. 115 han beon pronounced declaring that the transfers were void aH regards «'ertain land not brought under the Transfer of Land Htatute, but valid as regards laud brought under that statute. There is an appeal, and cross apiH'al. Amongst other objections to the decree as ro the land not under the statute, taken by the defendants, it was urged that entries made by the deceased Murphy were inadmissible as evidence. In nij' opinion that evidence was prop)erly received on two grounds, as entries either made by a deceased person against his interest, or by a deceased person in the course of his business. It was also urged that the plaintiffs were not en- titled to redress, inasmuch as the principle applied, that of two innocent persons he who had in any way con- du{' ground that he was made a party to an action « 3 W. \V, & a'B. Eq. 10;j. A'at prirte CLARKE, 119 liniii^rlit Ity ii third pni'ty with ivNix'ct to the lnn«l, on an aiiiiliin- tioii nniil)- liy tin* iipplit-nnt for nitiiulumiiH to i-oiii|i«>! tlic r<>k'i.4trMr to rt'KiMtt'r till" tniiiHft'r. Ili'ltl, tliat tlic Kroniiil nllcuol liy th<> r«>KiHtriir whh not HulK'-itnt to JiiNtif'y liini in r«>fiiHinK to rcKintfr tli*- traiiNffr. Rule niiti for iiiandaniuB. Application calliiif! on R('K*«trnr of Titles and one Tanip to show cauHe why a writ of niandanius should not i«Hue dlreotinj; the Kefristiar of Titles to rej^ister a transfer by on«' Rickley to the applicant. The applicant Clark was transferee of a niallee lease of land ivoxw one Bickley. The transfer was on 12th September, 1890, lodjjed at the ottice of Titles for re^iMtration. On the 2JHh September Camp issued a writ upiinst the said Hickley and the Rejijistrar of Titles, claiming specitic per- formance of an agreement for the sale to him of the aforesaid leasehold land. Prior to this, on the l.^tb March, 1800, Camp had lodged a caveat in respect of the said land, forbidding registration of any change of proprietorship or any dealing with his estate or in- terest. This caveat lapsed. The transferee, Clark, then applied to the registrar to have the land registered. The registrar refused to act, on the ground that he had been made a co-defendant in the action of Camp against Bickley. No order had been served under Sec. 145 of tlie Transfer of Land Act, 1890. Sprigg, for the Registrar of Titles : — This is not a proper case for mandamus, but for a judgment sum- mons. In Short on Mandamus, p. 2.'?2, it is stated : — " It is well settled that where there is a remedy equally jlMt«'i«'(l |u*o|ti'l<»tor. Maiulii mus iM an «'Xtraonliiiary n'liM'dv, a|n»ll in no otiicr n>iiH'(ly. (Maik ran biiiiK an action apiinHl tli<> vendor clainiiny: Hpnilic perfoniiaiu'c. [a'H«M'k«'tt, .1. — Im lie lo hi' driven to that n-nu'dy?) The vendor Ih tlie perHon to conipel tlie re^iHtratioii. Tji\ lor V. Land Mortpij^e Bank <»f VletorhiJ* ji'lh'i'kett, .1. — ThlH caw coiiich before iiie on an application to make abHolute a rule iiiHi for a iiianda iniis. The (pieHtion Ih, Can [ iHHiie a writ of mandamus to compel the Hef>:iHtrar of Titlen to rej?iHter tliiw trauH fer ? In the courwe of the ai'Knineiit the factw of the case have appeared, and I take them to be tlicHe Hhortly: A tiaiiHfer is lodged for regintration by tin? present proprietor of the land, Clark. There is no caveat in (»peration to prevent its regiHtration. The rejjistrar re- fuses to I'j'^ister on the ground that he Is made a co- (h'feiidant in an action bnuiglit apiinst the former pn»pri«'tor of the land in respect <»f tlie land, and accord- ingly the registrar refuses to do anything until the deteimination of this action. The present applijii ii'^iMtiar <>X(linl('M all roiiHidiTiition of the iranNf('i'«'<*'H ri^litH, an*< '''»'■. »•"! tlif only iMMiii'ily which will iiMMiMl tho prcHcnt apiilicant Ih a rcnifdy u^aiuHt tlic rcKi^trar. It waM flirt Ihm* Hald that it wan propiM-Iy tin* duly of the vendor to have the ne(>«>HHary Hlepw taken to luivt' the tranHf(>r renlnten'd. I do not now relf if he cIioohch to do ho by moving in the matter himself iiiHtead of (>xerciHin}<; IiIh ri^ht throu^'li hi^4 tranMfei'or. I think the tratiHferee can help hiiuHelf if he choose to do ho. The transferee has no direct remedy but thlH, and therefore I think he in entitled to a writ of mandamiiH. It in true that under the law an it formerly exiHted, with reHpe<'t to caveat, th«» trannfert'e waH not the person to move, and that has been remedied by Hulmequent enactment. Hut thin case is not one of caveat at all ; the registrar does not pretend that it is. The cav«»at has lapsed. The rey:istrar rests his refusal to re(;lN(iai'. II** did uot eaiim' It and tlicrcfoi'f I lie rule \h iiiadc ai»Holiit«' with roMiH aKaliiHl (he r(>({lMti'ar oiil,v. Hiilf almoliiti*. Holioitura (ur uppluiiiil :— Cutlib«>rt, IIuiiiiIIimi, Wjntiiu iV Co. Holicitora (or (!iiiii|t:— Daviiit, I'ricu iV WiMlxon Holiriliir fur Iti'uiMtrar : (iiiiiiiit'NM, Oowu >s<''ili<'itor. VkTOHA, IMSO— CoU.VM — MoI.KSWOHTII, J.] [OV.L R.(K.)1H(;. THK COLONIAL HANK OF AUSTIIALASIA v. l»IK. •• TniHMh'i <|/' himl Shitiitr " (.\n. :i(tl), hm. iH'tO—Finud — Sotiv,- — Practice — Sufntine l.'ourt liulcx, c, 0, r. '^fi — Rejermn- t» Mnatif Id im(nirc tiiiil rc/iort on facta — Ilcfntft — Stntimj iifi anil tciili-iuc f'lillif — hlinviitij nf exrciitiiUlK iicnl — L'unimcnnmtnt nj time. S'i'c. ."() of til." •' TmiiMlVr of riiiml Stntiilf " (No. :mH). i»rotftli« from (MMiNiriii-tivc ixitiic, hut hot tniiii aitiial uwiiio. oi' traiitl. Where u ilforuv tiiieulvd iliu Mabiwr " to iti(|iiiru unci ru[>ort tiie oircunintaiiccti '' of it Halu, unit wliutlitir dtifuiiduiit hud iiolu'u of truiiHartioiiH, etc., ami the MaNtvi' in hiH rt'iiort Hi't out tlie i>viiH'«* lakt'ii und Uin t-oiiiluHioiiH thrrt'oii. I'lton «>xr«>|)tioiii«— llt>ld, that h<> waM ri;;)il ill BluUii^ Inn OJiiciUbiuiiu , but ttlioulU iiut liuvu nca out the t'viih'iicc, rxct'iil by n'ri'iTiui", Where u Buit cixneM on, on tiXCttptionH and furtlinr dirertioiiB toKctlicr. the (>xc«*iitionH Hhoiihl hi> dlHpoHcd of, h«>for(' the furtlur dirortionH art' coiiHidcriMl. Whfro a party dicH after judt^tnont resorvcd, the Court moy pro- oced to n^vvi juctiunH. This suit \» reported upon the hearing <» V. L. R. (E.) 38. [The judgment was as folhm's : — (p. 42.) MR. JUHTICE MOLESWORTH :— The defendant Mr. Pie was seized of hind, corner of Victoria Ktreet and Stawell street, under the old tenure, and of land adjoining, lu'ld under the Act No. 301, and rohnXlAL HASK r. fiil. I'ia of Ht'Vi'ii Other |)icri>H of IiiihI of iliiii tciiiiK*. All action \^aM roiiiiiifiHtMl iiKttiiiMi him hv llit* |ihiiiiiilV, ilif Colonial Hank of AiiNtralaHia, HcpimilM'r, isTH, whlrh he i'cHtiit«' and ho n'tiirm'd. On l.'5tli Im'Ii., 1h7U, I'io inort^aK:<'d tin* llrMt iii<*ntioncnc(> to it only. Alioiit tlieHaiiie time (L'Tlh Kehruary, 1S7!M all the other pieceH of land under tlie Act :S01, were traDHferahle ti» her by iiiHlru- mciilH falHi'ly ri-citin^ tliat £L\0(Mt wan paid by her aM a coiiHideration, tliey lieiii^ really vcdunlarily, and hIic obtained certiticaleH of title for them. I think it clear, U|»on the evidence, that thene i'onveyaineH to or in truHt for MrH. Pie were deHi^ned to defeat tlie action then penr, but a wihIi to Hrreeii th«' property for the IM«>K from th(> plaintitT. According; to tlic dcfcu- duiitH' «'vid«'iM'(», tlu' coiitnict of sale was for £1,100. (There iH«ome evidence this was an undervalui».) TIuh waw payable £47.') raHli, the rewt, billH at three, six and twelve uiontliH ; that the niHh was }>aid 20th August ; that the bills were at tlu' Haiue tinu? handed to Mrs. Pie and not nepMialed, but they, renuiinin^ in her hands, were taken up and paid long before they were respectively due. Coi ufoot appears not to have had money for tliis pur I'hase, but to have raised the £475 cash and the moneyw l)aid for the bills, by depositing tlie certitteates of title, wliirh nuilv<'S it liard to say what should be the form ol the tlecree against him ; in regard to which 1 mean to direct intpiiry. The plaintitf has been paid, and is beiuj; l>aid, pjirt of its demand against the defendant IMe, by other persons liable with him, as to which 1 shall direct an inquiry. The case has been argued on behalf of the defen- dants, in r<'gai-d to judgment creditors not having a lien upon land. The true aspect of this suit is that it seeks redress for an execution creditor frustrated by fraudu lent conveyance of property, the same as if the property wer»* chattels perst>nal. 1 have been refcried to various Ii<>i-t the riiciniiHtaiK'cs of the huIc nientioiuMl in the aiiMWt'r of I lie said (U'fciKliiiit, Duvid Cornfoot, patat^raph 21, and the valu(> of tiic lands coinpiiHt'd tluM-cin, and wlu'lluM- and how far the defendant David TornfiKit I lien had noiiee of the nat\ii-e and niotiveH of tlie iranHacluMiH hetwcv'ti the defendsuits William Tie and Mnvy (Jornfoot Tie, or when he fli'st had Dotiee thereof, and alwo of the time and manner of the pa.vment of tho pni'chaHe money of [*44] the landsf lionjfht by tlu* «aid David Cornfoot, and of the bills foi-m- Int; part of the coiiHideration for the name. Also to iiupiire and report whether the defendants Mary Corn- foot Tie and David Cornfoot have given luiy lien or encniiibraiice npon tlu> lands in the (>th paragraph ot the bill mentioned by deposit of certitioates of title ot otherwise. Kefer it also to the Master to inquire and report whether the plaintilT has been paid any part of its demands against the defendant William Pie, by olher persons liable thereto. Order that in the meantime, the defendants Mary <'ornfoot IMe and David Cornfoot be lestrained from selling or encumbering any of the lands comprised in the transfer of 27th Febrimry, 187!), in bill mentioned, and the defendant Richard (ribbs, as Hegis- trar of Titles, be restrained from registering any trans- fers or other dealings with the said lands by the ssiid Mary Cornfoot IMe and David Cornfoot ; an injumtitui to issue for the above purposes if necessary. Reserve further directions and costs. Liberty to apply.] The Master took evidence and made his rei»ort. The defendant [*187] Cornfoot filed exceptions to the report. The suit now came on, on the exceptions and on further directions. Mr. liilling, Q.C., Mr. Fullerton and Mr. Topp, for the defendant Cornfoot : — As the argum«»nts on the excep- tions and on the further directions will be identical, they should be taken together, and the hearing on further directions proceeded with, the plaintiff's counsel begin- ning. Mr. Holroyd, Q.C., and Mr. De Verdon, for the plaintiff objected. im TollllKNS CASES. MK. .ir STICK MOLKSWOHTI! :— Tlu* «'Xr(*i>iion8, UHually, jiic tirsi diH|i(»«Mi of. Tlu' «»x<'rpti(»n« \v<'i«» i]\^'^] in ordt'i* to rcvh'W (lu» ^f^l!^ tt'i'H nport. iiiiil IiIh tindiii^ upon tlii> qtu'stion rcfcri'tMl tit liiin by tlu* d«MnM'. aw to whtMhoi* CoriifotM had noti(«« or not of tlie d(>aliii);H of th»» IMi*h. The rxceptions Wi'H', p*n«M'ally, that by the reference in the de«-ree tlie Mjislcr wan not at liberty tt> draw 4!OU(;lnBi( hh, but only to tak«' and report the evidence ; that the MuKtiT Hbuuhl not havH net out the evidence or reanonH for his tindingH; thsU luM findin^M were not jiiMtified by the eviden<'e ; and Ihat he rejected evidenct* ottered on behalf of ('oru foot wliich he shoidd have received. Mr. Itilliny:, (i-C. .Mr. Fidlerton, and Mr. Topp, in sup port (»f tile excej>lit»nw : — Tlu' eviden<'e «loeH not Hupi)ort tlie findin^M, as it aniountw only to vaj;i»' reports and tlie like : Snj^den V. & 1*. 75"). The evidence 8houlai'ti(ular evidence was rejected, and it is ditllcnlt to deal with the objection. Havinj^ heani what the rejected evidence would have been, it appears that Cornfoot has had tlu* benefit of it really. 1 ajrree with the Master in t\w conclusions lie has drawn. As to the objection undei' Sup. ('I. Kiih's, cap. \l. r. 28, 1 de livei'ed a jud}»!uent in Slack v. Atkinson,' in which I c. ISTS. COLONIAL RASK r. PIE. 12" Tlu' lu'Jirin;; on fiirtluM* dliHMtloiiH wjih thru piociMMled with. Then' wrn* nine pi< cfs of laiul Himjtht to be* affected by thin suit ; one iii(»rtj;aK**d under llie oh! hiw to the Second South Melbourne Building and InveHtnient Hociet.v, tlie i'quity of redeniption in which the plaintiff Hought to affect. One other piece had been sold. Of the oilier Heven, foui* had been transferred to Cornfoot, which he niort^a^ed by deposit with ThoniuH Uood and Thouiiis I'pton, and of the other three one wan nn>rt- jjap'd to the buildiuK society, one uuencninbered, and the (hird subject to a charge of £15 to William Kirkus. ivirkus. All these lands but the first mentioned were held under the "Transfer of Land Statute." Mr llolroyd, (^.C. and Mr. l>e Verdon for the plain- tiff —As Hood and I'pton and the building society are not parties to this suit, no decree affecting their rights is askecl for. But tr(>ating Cornfoot us a purcluiser with tuttjt :» of the fraud of the IMes, the plaintiff asks for an >>«*«!• for the sale of the lands by the Master, either free and discharged from, or si»l)ject to, the incuni brances affectiug the same, and the pi*oceeds to be applied so far as they will extend in payment of what is due to the bank for principal, interest, and costs of suit against the Pies, over and above what the Mast(?r tiiuis the bank luis received under the deed of 187.S ; costs also against Tornfoot ; also that the Th's and Corn- foot should curchasers. Mr. Billing, Q.C, Mr. Fullerton, and Mr. Topp, for the defendant <'ornfoot : — Cornfoot was not a purchaser with notice, aifected by the fraud of the Pies, apart from the "Transfer of Land Statute." Mere suspicion is not su(flci<'nt : Sugden V. &. c. 77!) ; nor is inadequacy of consideration, ibid 2S0. Cnder tlie statute, ce UKUiths. Am to the position of chattels [KM-sonal under the Registration A<*t, see Morewood v. The South Yorkshire Ky. Co," Darvill v. Terry." Refer- ence was also made to Wood v. Dixie,"* Holbird v. AiHlers(m, " lM<'kstock v. Lyster,'^ HoL)erts(m v. Keith,,, The mortgagees ought to have been made parties : Seton on Decrees llSli, Copis v. Middlet(m.'* No costs should be given against Cornfoot, he was nnide a party to the suit onlv as a trustee. * Mr. Holroyd in reply : — Actual notice of impi'oper motives actuating the IMes has been found by the Master, amd that is sufticient : Maddison v. [*1}H)] Mc'Carthy,'* Cadogan v. Kennett.," After suit and notice to him, ('(unfoot encumbeied the property : he se of the arguments, and that the fonn of the order nii^ht be spoken to. An aflHdavit of the facts was filed, whereby it ap- jH'ared that (.'ornfoot had died on the 2r)th October. Ilia solicitor was served with notice of this motion. Mr. Ilolroyd, Q.(\, and Mr. I)e Verd(m, for the plaiu- titr : — After the death of the defendant the Court can ^'ive judgment and the decree should be dated as of the (lay of the ar;;ument, when judgment was reserved : Davies v. Davies ; '^ Collinson v. Lyster ; '" Turner v. The London & South Western Ry Co.'" A clause may be ins«'rted in the decree resei'vinji the rijjht of the repre- sentatives of the defendant to appeal under \\) Vie. No. i:{, s. Tu [*lJn] Mr. Fullerton and Mr. Topp, for Mr. Jenninjis, the soli»itor of the deceased : — No probate liaviu); been 17!) Vos. 4<{1. i" 20 Ktav. ;!r..'». 10 L. u. 17 Eq. r.(5r.. H. TOR. CAS.— 9 180 TnRRENS CASES. tuken out by the oxecntoi'M ui* otlu-i* r<'pn*H»'utatlv«'M uppointed, the dcrrcc hIkmiUI iiut be antedated, for the appeal time I'UDH from the prououneiiif; of the decree : HoM, <'ap. V. rr. 14, 17. It in not aecordlnK to the pmetice to »\)eak to the form of the order : Hupreme Court RuK'h, Cap. V'l. r. 21 ; McKean v. Francis,''* Porteouti v. ()d- die." [Mr. Juktiee MoI<'MWorth : — Ah to tlie appeal, there must be Home construction put on the Hections whereby parties will not be deprived of an appeal under these circumstances. If there be no person who could appeal, the ri^ht and time would not arise or be^in to run until there was a person entitled to appeal.] Mr. Holroyd in reply. MR. JUSTICE MOLESWORTH :— There is now no one representinj; the deceased defen- dant, a.id although his solicitor was nerved and IiaH api)eared by counsel, I must treat this as an ex parte application. As to entering up the decree nunc pro tunc I do not see any necessity for it, according to the form of decrees at present in use in this Court where judg- ment has been reserved. Tliere is no use in introducing falsities into the decree ; it should stait*' the? truths of the events. I will look into the authorities. 1 am not Jit present aware whether tlie English form of decrtu' dif fers from ours, or whether theif is anything showing whether the parties are alive or dead at the time of the decree. [Mr. Holroyd : — The forms in England and here are identical, except that we do not state that the cause has been set down for judgment.] As at pivsent advised, I am not inclined to de|»art from the ordinary form. 1 will announce when 1 intend l^o make the decree, and slmll be glad to hear counsel for th<* parties upon mat- ters limited to mere oversights, not as to matters neces «arily the result of the decree. 1 will not enter into any matters ov questions not raised or asked for at the hearing. 20 1 V. I.. T. Hfi. a» o A. .1. H. 159. aa 1 V. L. H. (E.) 148. If COLONIAL BANK v. PIE. 131 [*102] The appeal \n tuived, U8 beiug from the time of m.v pronouininj{ the deeree. I will reserve my deeision on all matter«. ('ur. adv. vult. MU. .justi(;e MOLESWOKTU :— In thiH case I have to refer to tlie report i\ V. L. R., Eq. 'Mi, for faets up to the reference to the Master. The Master made a report, dated Hth September, by which he found that on the l«th July, 1S7!), the sale to the defen- dant, Mr. Cornfoot, was first proposed to him by the defendant, Mrs. Mary Cornfoot IMe ; that (Jornfoot then had heard of the plaintiff's action and judt^ment; that the property proposed to be sold had belonged to the defen- dant, William Pie, and had been transferred by him to Mary Cornfoot Pie, and had been nuide over to her voluntarily, and that he had no doubt tluit there wan some motive in the conveyance of William Pie to Mary Cornfoot Pie to place his property out of the reach of the plaintiff, and suspected that motive ; that the defen- dant David Cornfoot, agreed verbally to purchase the property on the 3rd or 4th August, 1879, and the trans- fers of the land from her to him were executed, but no money was then paid, and the defendant Mary Cornfoot Pie gave the transfers to her solicitor, who acted also as solicitor for Cornfoot, with instructions to hold them until she was paid th« purchase money ; that on 20th August, 1879, Cornfoot was served with the bill in this suit, that on 29th August, 1879, Cornfoot gave Mary Cornt'oot Pie £475 in cash and three acceptances for the balance of the purchase money ; that the bill in this suit was then mentioned ; that the acceptances were paid before the> fell due. The Master also found that, from the above circumstances, (vornfoot had, at the time of the sale before any purchase money was paid by him, notice of the nature and motives of the transaction between Wil- liam Pie and Mary Cornfoot Pie. The defendant Cornfoot took exceptions to this report, which I overruled. I had expressed a suspicion that Corn- foot's motives for the purchase were to assist the Pies in complet'Hti i'"C fraud which they had commenced. But 18S TtHiHENS rASKS. thiH Im not conHriiK'd h,v tin* rrptu't, ho that I Mliouhl (U>al with roi'iifoot HH liuviiiK |»ni'rliiiHcr(>HHi Htatntc No. aoi preHents (lifllcultieH of ronHtruction wliich I hav(> felt in Hcvora! caHeH, and ffcl hvvo. liy Hi'c. no, " Except in thi* caw of frand, no per- Hon contract ini; or dealing with, or taking, or proi>oHini; to taite, a trannfcr from the proprietor of any rcglHterod land Hhall be recpiired, or in any nianntM* concerned, t<» incpiire or aHcertain tlie circnniHtanceH under or th(> con- nideration for wliich Hiich proprietor thereof waH re^iH- tered." Thin HeeniH to me to protect from all conMtrnc- tive noticcH, but not from HUili actual noticeM of the fraud of the I'ien agaiiiHt the plaintiff an ('ornf(N)t here had at the time of the Hale, and acceptinj{ the trannferH, and more diHtinctl.v by the actual Hcrvice of th<* bill, and hlH leiHurely reading; It before the completion of thi> tninnaction and payment of the purcluiHe money. Tlie bill waH Herved on Cornfoot, not in reference to IiIm con tcmplated (}ealinK^ but itH wordw were dintinct statementH of true factH. I have nothing to do here with the latter part of Hec. r»(», which re^nrdH trimtH ov unref;iHt(>red IntereHts, which do not, I think, include Huch intercMl jiH the plaintitr here had. I think that Cornfoot was in si I)OHition to have broken off with Mrs. Pie without com- pletinj? or payinjj purchase money, even assumiuK that there was what would otherwise be a contract bindiu;,' him on the execution of the transfers. There is an odd provision in Hec. 48 as to suits for spet'ific performance, which, as I read it, would hjive disabled Cornfoot from resisting? a suit for specifle per- formance on the pround of notice of plaintiff's claim received after the execunon of the transfers, but the notice here was before. That section strengthens ray view of Sec. 50. Cornfoot would be entitled to costs so far as the suit was against him as a trustee. He acted, as to completing his i)urchase, under the advice of his solicitor, upon the construction of an A<*t — wrong in my opinion, which is by no means decided. I shall not COLONIAL HASH i. /'/A'. 133 iiiak<* u d(>rr«>i> fur cuhIh iiKuiiiMt ('uriifoot |N>rHoimll,v. Tlic dcfcndaiit <*uruft)ot Iuim di(>d Mince tlit* ar^niiu'iit of tliiH riiHc, which docM not prcvt'nt \\\y making tliiH dcnvt*, and I Hf(> no rniHon to depart from the ordinary form of making up dci-riM>M where tliere iH an interval b«>tween arKument and judgment. If there iH any inconvenience aH to revivor, [*1H4] appealH, or enforciMnent from tlie date of tlie d<'cree apptnirin^ after (*oriifoot'H deatli, 1 hIuiII endeavor to ol>viate it. Dnlarf that the plaiiitifr in ••ntitli'il tu lit* pnitl itM priiifliiol lit (Jtii'i>t. i'('*'ovt>r*'il Nth July. l.STU). tleiliM'tiiiK tht'r«> Huni of i!l,(l'>H Ui4. M. niuntioiitiil such otliiT Huui UH may Im> pnhi by th«> utluM* parti«>it linl)l«> for t)ii> saiii juri>Ht at 8 iH*r cent, iiinl Uh coHts of this Kuit, incluil- 111^ ihu oofttH of i>xo(!|)tii)iiM to tlio MAHtitr H report out of the IuiiiIh in hill iiifutionod— thiH Ih to nay, tht> laixl in th«> (Ith paraKrnph of the hill uit'iitioiH'il, lichl uiHl«>r tho ohi law ; niul tlu> timt nllotniont tliorein muiitioiit-il, li«l(i under tlie Act No. .'tOl, Hubjcct to tlie mort> KHKf of tilt' 2'ith l>ruary, 1H71>, in hill iiK'ntiontMl, ami the allotniiMitM unr th*- Act No. ItOl in tli*> Huiil pnrnKraph. iiecontllv, thinlly, fifthly, Mi\thly, H*>v<>nthly, ami (•iKhtlily nu>ntion«Ml ; ho far as rcKanlH thf intt>r»'MtM of the ilt'fondnntH, William Tii', Mary (%)rn- fiiot I*i(>, tind Duvid ('ornfoot theroin, and dtM'lart- that th<> plaintiff is entitled to have tlie itiiid liindH Hold for pnyment of its naid debt ; II nd decr that the Manter may proeeed to tiell the Haid laiidit reHpcctivoly, or ho much tlHTeof reHpeetlvely nH may be newHHary for the purpose afor«>Haid, and that tlie naid defemlantH roHpeetively simli join in coiivoyanceB to the piirohuHHrH thereof resptfotivuly and tli<> pnrehaHe money be brouKht in. Direct that the said landn may, at the option of the plaintiff, be mild either Hubject to or discharK'.'d froiii the riKhtM of the He«;ond Houth Melbounie KnildinK & InveMt* iiient Society, ThomaH Hood, Tlioman I'pton, and William KirkuH respectively, ho diHchurK<'d in cane the Hitid Heveral partieH Hhall condoiU to join in conveyuncos, and bu paid out of tlio piruhai'e idice to tin money, but otherwiHe Hubject thereto witlire \n JiiriHtlictioii in Kqnity to 4>iit(y tli«' Attoriu'y-(}('ii»'riiI for a tloclaratioii of the title of th« Crown to ail «>M<-lu>at, anil for an injnnttion againHt any 4li>alinK witli tbo lanr ihv Oown : — Tlicrc Im tui (liHiMitc iiM to tlu' fiictH. Two (lcf«>iii'(>ii nvv niiH<>(l hy tli(> aiiHW(>i' : ill Thv Statute of Llinlta- tioiiH : iL'i Want of JuriHillclioii. Am (o die tlrMt, llir Ktii(ut«' (lo<>H not run a^aiuHt the Trown ; and uh to t1)i> Hccond, u|)on tli«> dt'atli of Mar};ar«'t Kll(>n Killuirn, tho liiiul cHclicatcd to tlic Crown, |»«>r (l«>f<>rt)ini HanKuiniM, and tlu> f«'«> Hinipic wiiH tluTfupon iiunicdiatcly vcMtcd in tlu* <'nnvn; (Milt. Pn-roj;. pp. 'JlUJ. 'JUT, WatkiuM <»n(5onv«'yanr- u\H. ISH, WiJKlit'H T.-nuicH, n.\ 2 HI. Com (riiltty), 72. To obtain poHHcHNitm of the land llu* AttorncyiU'ntMal Iuim taken tlu> proper coiu'He of pro(e<>din^, for the Quet>n may huc in any Court witluuit reference to tlu* queHtion of juriftdietitm : haul. Cliy. IM-., otli edition, pp. 4, 5 ; and the inf(uination for intruHion may be tiled in tliif* Court, notwitliHtandini; the umiHHion t<» Mtate therein nuitter of ('(piitable jurlndletion : Atty.den. to the I*r. of WaleH V. St. Aubyn.' Further, to reHtraln the regis- trar from dealing with the land, two courseH are open by Sec. 24 of the "TrauHfer of Land Statute" (No. :mi), (m«>, by notice luerely, which expiring; in a month Ih inef- fectual ; and the other and etfettual method, by order or injunction, uh pointed out in llodgHou v. Hunter,^ and CIera«;hty v. KuHHell.-'' Mr. u'He«'kett for the def«'ndant nofjpui : — Thin Court haH no juriHdiction. If thlM were n cane between subject and subject, it would not be sustainable. U(»d^- Mon V. Hunter,* followed by a late case of Ex parte (Junn, in re the Transfer of Land Statute," in which the Court in banco nuide an order according to tlie suKnention in Hodgson V. Hunter, and exercised a siwcial jurisdiction, lieinj; an informn'ion by the Attorney-(JeneraI, it is Houffht to be supported by tlie dictum in Danl's Chy. Pr. ind the defendant Richard Gibbs from bringing the said piece of land under the operation of the said statute, or registering any certificate of title in the name of the said James Hoggan. Direct that writs of injunction issue if necessary. Solicitor for the Attorney-General :— Gurner, Crown Solicitor. Solicitor for the defendant Hoggan :— O'Halioran. 8 1 W. Bl. 131. 1 Molloy, 95. 10 8 Beav. 270. 11 1 H. L. C. 440. 12 Hob. 109. laWightw. 167. ' ^pp 188 TOHREyS CASES. Supreme Court, Victoria, 1877.] [3 V. L. R. (L.) 190. In re THE TRANSFER OF LAND STATUTE, Ex parte CUNINGHAiM and Another, In re McCARTHY. '* Trims/er of Land Statute " {No. 301), sec. 17 — lU'ifistratiun — Kiisrmoit — Inrnrfiorefu heri'iHtaiiient. In briiiKinK Inml uimUt the " Trnnsfor of Laud Stntute," an caHonu'Ut over liiiid not ihuUt the Aft ounuot h« reKistt-red. Only Huch incorpori'iil htTcditnineiitH ns are nctuul " oBtateH " in the land, uh contrndiHtinKuiHlu'd from " eaHementH," can he hrougl.t under tlie " TranHfcr of Land Statute," where the hind itself has not been bruuKht under the Aet. Order niai obtained by Hastings Cunin}j;ham and J. K. Smyth, calling? upon Mrs. Ellen McOaiMliy and the Rej^lstrar of Titles to show cause why the registrar should not be restrained from bringing certain land under the "Transfer o* Land Statute." The trustees of the Melbourne Gas Company were seized in fee of two adjoining Government allotments, numbered 1(> and 17, in the city of Melbourne, eadi running through from Collins street to Little Flinders street, and having a frontage of (UJft. Oin. on each of those streets. They subdivided the two allotmeuis into lots, according to a plan of subdivision of which the following is a copy : — es H g XIX. XVIII. 84 61 ^ -q Oi e h^ mtt »-^ *-t £ ^ 00 o> gi 84 21 29 25 25 25 25 84 _ CROSS STREET— 33 feet wide. 3 84 w 25 8 25 (3 25 s 25 55 o 25 84 bI 84 84 X V. CD as " EX PARTE CUNINOUAM. 189 The boundary Hiu* botweon allotments ir> and 17, in fact, ran down the centre of C'ross street [*200] but was not HO shown upon the plan. These lots were put up for sale by auction in May, 1854, by reference to the plan. The late husband of the respondent, Mrs. McCarthy, pur- chased lots IJ and 4, and in his conveyance, dat»!d L'4th June, 1855, from the trustees of the Gas Company (therein described as such), the parcels were describe*! as " All that piece or parcel of land situate, etc., bein>^ lots 3 and 4 ou the plan of subdivision of allotment 10 of section 1, of said town of Melbourne, commen(-inj? at a point on the north side of Little Flinders street at the intersection of Cross street, 33 feet wide, with Little Flinders street aforesaid ; thence in a line bearing northerly 84 feet along the east side of Cross street aforesaid : thence in a line, etc., together with the full and uninterrupted use and enjoyment at all times for ever hereafter of the several private roads or rights of way reserved out of the said portion over which th<; said (grantors) as such trustees as aforesaid have a disposing power, together with all houses, ways, etc., to vhe said land and hereditaments belongiag or in any wise apper- taining." McCarthy died in 1873 intestate. Mrs. lillleu McCarthy is his administratrix. Messrs. Cuningham & Smyth purchased at various times others of the lots, and by a deed of the 1st April, 1805, they obtained a grant from the then trustees of the Gas Company, of all their right, title, and interest in the site of Cross street from Collins street for a depth of 179 feet 6 inches. In the same year they built a substantial store covering the whole frontage to Col- lins street, inclusive of and completely obstructing Cross street at that end, and still remain in possession. They are also in possession of lots 3 and 4 under a lease for a term of years from Mrs. McCarthy. Recently Mrs. McCarthy applied to the Registrar of Titles to bring under the Transfer of Land Statute lots 3 and 4, to- gether with a right of way appurtenant over Cross street from Little Flinders street to Collins street. Cuningham & Smyth thereupon lodged a caveat in 140 TORREys CASES. respect of Cross street, in which tliey claimed an cKtatf in fee simple in CrosH street, except in so much tliereof as rnns for the distance of Hi feet north from Little Flinders street and forbade the brin^'in;; of tlie land so claimed, or of any riplit of way or easjMuent tliereover, under the operation of the statute. [•201] In support of this caveat they obtained the present order nisi. It did not appear on the attidavits that the soil of Cross street had been brought under the Act, and it was stated in arj^u- ment that it had not been so, and that Cuningham & Hniyth held tlie fee in it under the old law. Billing, Webb and Box showed cause : — In order to ascertain tlie right of way given to McCartliy by his conveyance, it is a mere question of fact as to what private roads or rights-of-way were reserved by tlie vendors, and the plan of subdivision referred to in the conveyance is the best evidence of what was reserved, and of what was the " Cross str^ . " described as the boundary of the land conveyed to McCarthy : Davis v. Tlie Queen.^ At the least, the reservation of the way is an estoppel upon the grantors before the conveyance of their right in the soil of Cross street to the present applicants, preventing them from denying' the existence of Cross street for its whole length. This application virtually calls upon the Court to decide a question which is the subject of an action, in which an appeal to the Privy Council is pending.^ The parcels of the conveyance to McCarthy describe the land con- veyed as lots 3 and 4 on the plan of subdivision, bounded by Cross street, with the use of all roads, ways, etc., appurtenant thereto, so that we may refer to that plan to find what were these roads, to explain the latent ambiguity : per Pollock, C.B., in Clave v. Hardin g.^ [Fellows, J. — Is it not a misnomer to speak of roads or ways appurtenant to these lots, while the whole was in the hands of the vendors ? Is it more than the an- nouncement of an intention ?] But the grantors would 1 6 W. W. & a'B. Eq. at p. 123. » Vide McCarthy v. Cuninsham, 3 V, L. R. (L.) p. 59. 3 27 L. .T. Ex, at p. 292. EX PARTE CinflNf/HAM. 141 be L'Htopped from aftcrwaidH di'n.viu^ the exiHtence of the road, or deHtr(>yiuK it : Ettpley v. Wilken,* Goddard on EaHements (2ud edition), 214," Peacock v. Penson.' Section 17 of tlie TranHfer of Land Statute (No. 301), allows " land " alienated from the Crown before 18t)2 to he brought under the Act, and "land" is, by Sec. 4, interpreted to include '* hereditaments, corporeal or incorporeal," and "all easements ["202] and appurtenances appertaining to the land." This right of way is an incorporeal hereditament within the Act, and so may be registered. [Fellows, J. — Suppose a right of way to be ac(|uired after the land had been brought under the Act, could you register it, and get a separate certificate for it ?] There would be nothing unreasonable in that. The Act is intended to make title to incorporeal as well as corporeal hereditaments. The easement must be registered with the land to which it is appurtenant, and so upon every subseipient transfer, as each transfer is upon a separate folium, otherwise, persons looking at a subsequent transfer would not be informed of the easement. An easement appurtenant may be so regis- tered, although an easement in gross cannot : Ex parte Johnson, In re Whyte.^ Higinbothani, Holroyd, a'Beckett and Williams in support of the order nisi : — The answering affidavits show that, from the nature of the levels at the Collins street end of Cross street it would have been impos- sible to use Cross street as a means of access to Collins street. [Fellows, J. — In this colony constant user would not confer a right] Davis v. The Queen ^ .and Espley V. Wilkes" go upon the question of abuttal upon the land sold. A grant of all ways appurtenant does not operate to create a way which is not shown to have existed previously ; and while the whole land was in * L. R. 7 Ex. at p. 303. 8 11 Beav. 355, • 5 W. W. A a'B. L. 55. ' W. W. & a'B. Eq. 106. 8 L. R. 7 Eq. 298. »Ante. p. 69. 142 TORRE NS CASES, the saiiu' haudM tliero wottid not be a way appiirtenaut to a part over any other part : Thonmon v. VVaterlow.'" In EHpIey v. \Vllke»'' the way in one of necessity. Further, if any siu'h rl)?ht exists, it is at present in sus- pense, that is, non existent for tlie time, bein^ merged in tlie possession of the present applicants under their lease from the present respondent, as decided already by this Court on the demurrer in the action between the same parties :*2 Thomas v. Thomas.'"' Then if this alleged right of way be an easement not appurtenant, but in gross, it cannot be registered under the Act: Ex parte Johnson, In re Whyte." The only case in which any right of way can be registered under Sec. (54 [*203] is where both dominant and servient tenements are under the Act. Here the servient tenement is not under the Act. The plan referred to in the conveyance to McCarthy was intended for the purpose of ascertain- ing the lots, not for defining the road. There is by the conveyance no estoppel upon the vendor, further than as to the existence of the road along the lots sold to the purchaser. [Fellows, J. — Is noi this case like that of Nene Valley Drainage Commissioners v. Dunkley," in which a plan was considered to be sufficiently incorporated ?] In that case the question arose upon the contract ; no conveyance had yet been executed, and the plan was endorsed with a memorandum sufficient to incorporate it with the contract of sale. That case does not extend the principle of Espley v. Wilkes," which shows that the intention is not to be changed so as to give more than the contract contemplated. The dictum of Pollock C.B., in Glave v. Harding,*^ relied on by the other side, is opposed to the current of authority, Fewster v. Tur- ner.^* All that the purchaser is entitled to is a way J" L. R. 6 Eq. 36. " L. R. 7 Ex. 298. " 3 V. L. R. (L.) 59. " 2 Cr. M. & R. 34. » 5 W. W. & a'B. L. 55. " L. R. 4 Ch. D. 1. " L. R. 7. Ex. 298. W27L. J. vEx.)286. "IIL. J. {Ch,)161; 6Jpr. 144. EX PARTE CUMNUUAM. 148 to the ncarcHt hi^hwuy, Uundtill v. Ilall.'" HiippoMiii); (he whole road wan reMervt'd, Hiich a leHervatioii would not be tliial, it Ih, at the utiiioHt, iiothiiiK more than an intention. A Htreoi doeH not mean a tliorou^jhfare, Ulyth V. railon.-" (>ur. adv. vult. STAWKLL, (\J.— TliiH waH a motion for an order restraining the Ht'j^istrar of Titles from IrinKini; under tlie Transfer of Land Btatute land, to^etlier witli a right of way over certain other land ca'led (>ross street. Tlie word " land," when used in the Act, is to include cor[)oreal and incorporeal hereditt nents, and, when used in any certitlcate of title, is to include all ease- ments appertaining to it, or reputed to be part thereof or appurtenant thereto. As regards the land eallei "Cross street," the cave- ator objects that a certificate of title ought not to be issued which will in any way affect that street, or the « Jiveator's title to the soil of it [•204] free from all servi- tude as a right of way. He bases his objection on two grounds : first, that there is no right of way further north than 84 feet from Little Flinders street ; and, secondly, that as fhe land called Cross street has not been brought under the Act, there is no power to sub- ject it, by means of the Act, to this kind of servitude or incumbrance. Whether the road or right of way Avhich is admitted by the caveator to exist as far as 84 feet north of Little Flinders street, extends beyond that point, so as to entitle the applicant for registration 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 certificate in respect of the land at the south end of Cross street. On the other hand, it was urged 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 high- way, that is Little Flinders street, and Randall v. •»4DeG. &S. 343. ^ 2 Vic. R. Eq. Ill ; 2 A. J. R. 76 144 TolUiL.XS CASKS. Hull,'-' WHH ri'Hcd upon in Hiipport of tlio vi«'W, for whirii pci'luipM it nui.v Ix' an atithority. On the ut\u'v hand, it waH contended that a ri^lit of way had been Ki'ted nloiiK the whole length of CroHH Htreet, and that the grantee waH conHeiiiienlly not litnited to the use of that part which would ^[ive hiui acce^H t<» Iii(ll(> Flindei'H Htreet, but wan entitled alno to travei-He it noi'thwurd, and HO ^ain accenn to CollinH Htreet. Which of thene two views in the correct one, it Ih at prenent unn«'«'eHHar,v to deteiiuine, for in neither event Ih it allowahl(> to place on the r«'j,'iHter or in the cerlitl- cate of title, any eaneiiient over, upon, or atTectlnj? land whicli luiH not been brought under the Act. There is no mode of indicating; an eanenient, and, ho far an wi> can Hee, only one nio«le pointed out by the Act. Sec- tion 04 prescribeH that when any eaMenient is created over or ujxui or atl'ectinj; amy land under the operation of the Act, a memorial in to be entered upon the folium conntitutin^ the title to such land, or, in other words, a blot Ih to be made in the rejfinter on the title to tlie s«*rvient tenement. Tliere in no proviMion for Hhowin^ (m the title of the d(miinaut tenement any easement which may be appurtenant to it, thoujjh, as we have already seen, the uh(? of the word " land " will carry with it any easement which its owner can be proved by evidence, [LM).')] external to the rej^ister, 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 re- gards 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 which had been prescribed only for the former, even if there had been, as in our opinion there is not, any reason for supposing th it the Legislature would have done it had their attention been directed to the matter. An order must theiefore be made restraining the registrar from bringing the right of way under the Act. " DeG. & S. 343. EX PARTE CUSIXtiRAM. US Tt iiniHt not 1m» t»n|»|>o«od thnt thin rtcrlHlon InvH (1al h(>r(Mlitain<'iitH are Inrapabh* of ivj^Utratlon. W'v xaiiipli', hold that a rent charK*' iHrniiiiK out of land not bion^ht und«T tlu' Act, cannot ho made the Huhjoct of a ccrtltt- cate of title. Our judgment appllen only to tlumi' incor- poreal liereditanientM which consiHt of mere eaMementR MH diHtin^uiKhed from actual cHtatcH in the land. * Order almolute. Att'irncyM for th«' iippll, um it ^\\^l not uIU'Ki* Hint tli<> (li'cliiratloiiH wen* iiiihIc falM<>ly or corruptly within Hw. 'M of Tlio Htatutc of Kvliloncc, 1H((4, or Him*. .'CiO of T'.ic rrlminiil Law an Htatiitc, iNdl. I hH«l that the TninMfvr of hand Htati.!*' ronNtitiitrd otrcncfrt which wcro Miit1lcli>ntl.> laid In thi* prt'Ht'Utnifnt bcton* nu», whctlicr hiicIi otTcnceH were or were not Niittlcicnilv laid under the MectionH r<'ferred to. The proHecutor for the ()iieen utated that he did not intend to ask for any amendment, and th(> trial proc(>eded. It appeared from the evidence that when the uccuH(>d applied to brin^ the land under the Act he was not, and that he nev(>r had been, in excluwlve poHMeHMion of the land applied for, and that hlH application wiih HUpported ^y two Mtatulory declaratiuuM in which he made untrue anHertiouH aM to fencing and poHHeHMion. The Jury acquitted him on the tlrHt <'ount relating to the application ItHelf, and on the Hecond count relating to a declaration referred to in and lodged with his application, but convicted him on the third and fourth countn. The third count charged "tluit the Maid William Aedy, on the 27th day of AuguHt, IMHI, at Melbourne, did wilfully make a falne Htatutory decla- ration before Arthur Kankin Blackwood, P^wi., a justice of the peace for the central bailiwick, required under the authority and made in pursuance of the Transfer of Land k^tatute, in which the said William Aedy declared," etc. The fourtli count charged " that the said William Aedy, at Melbourne, on the 15th day of March, 1882, unlawfully and fraudulently did procure from the Registrar of Titles u certain certiticate of title, to wit, a certificate of title of the land mentioned and described in the first count of the presentment, contrary to the statute in that case made and provided." Tlie prisoner's counsel contended that there was no evidtmce to 8ui)port the conviction on the third count, inasmuch as it did not appear that the declaration therein men- tioned was required under the authority or made in pursuance of the Transfer of Land Statute. The only evidence on this subject was that the clerk from the office of Titles having charge of the papers relating to IlKfJtXA I. AKDY ir iippllratiiiiiM tu hi'liiK liind uihlt'i- llir Art, prodii I thoH«' rrlnliii^ to tli«> ti|»pll«-alioii r(>ri>n«>il to, iiimI rli<' (ItM'lanitioii iiK'iitioiird III tlH> tliird rniint wiih hiiioii^mI thrill UN II ilonillli'llt lo(lKr«l ill Hllpport of tlir ilpplitti tion ; but tlirrr wuh nothing furl her to hIiow [*747J how it niiiM' to he loil^rd or tlwit it liinl lirrii rcqiiirrd by tii<> cXiiiniiK'r of ttth'M. The priMoiit'i-'it couiimcI ooiitrnvl(l«'iir«> to Hni»port tli«> fout'tli roniit, iiiiiNiiiiuli tiM It (llj«'(t waw that a <'ri'tltl<'at«» of tith' ha arruH«>d on IiIm applica- tion to brin^' land undtM* tlu> Act, and that thiM aitplira tion had bcrii Hupportcd by certain Htat I'ory drclaia- tioiiH, onr of which the jury found to huve coutaincd u wilful fal«c Htatcincnt by tlie accuH< I The followini; qiieHtioiiH are reMerve aereH. He then applied for a tertifleate of tlth' to the wIioU' of the hind, and without notice to or knowledge of the plaintiff, obtained it. The j)laintitf instituted this action to conijiel the defendant to pay the value of the exceHS. The ar^unientH and the details of the fads sufficiently appear in the judgment. Leon and Topp, for the plaintiff. Hood and Neighbour, for the defendant. Cur. adv. vult. Webb, J. — Tlie plaintiff caused to be put up for sale by auction on L'lind April, l!Sy4, land described in the advertisement of sale as "part of portion '.W, parish of Yangery, county of Villiers, containing 50a. 3r. liSp., Inning a frontage to Yangery lane and the main Wood- ford road, and adjoining properties of Messrs. A. & II. Urquhart and John McLaehlin, rented by Mr. Michael Dowd for many years at a high rental." At the sale the biddings were taken at per acre, and the land was knocked down to the defendant at £44 10s. per acre. There were a house, fencing and other improvements on the land. On the same day a contract was signed by the auctioneers, as agents for the plaintiff, and by the defendant, in which the land was described as " all that piece or parcel of land containing by admeasurement 5fJa. 3r. 25p., or thereabouts, being part of portion 30, parish of Yangery, county of Villiers, together with all buildings and fixed improvements thereon." The terms of payment were one-half cash and the balance at twelve and twenty-four months, with G per cent, inter- est. In the contract the amount of v,*!; :hase money was Inserted as £2,532 6s. 9d., whi* 1; '-.a pro- duct of £44 10s. per acre for the stated area, i >; a. lir. 2np., be the Hanie more or leHg, beinjj part of portion '.W, parish of Yangery, «'onnty of Villlers, conuneni'inK at the southern side of the Government road leiidin^ from Port Fairy to Woodford, at the north- east corner of the said portion, and bounded on the east by a (fovernmeut road one chain wide, beinj? a line bearing south 4() chains 58 links ; on the south by part of portion 15A, beinj; a line at right angles to the last line, bearing west 12 chains 71 linlvs ; on the west by a line at right angles to the last line, bearing north 30 cliains ; again on tlie south by a line at right angles to tlie last line, bearing north 5 chains 01 links, and on the north-west by a (lovernment road leading from Port Fairy to Woodford, being a line bearing north 79 degrees east 23 chains 10 links to the commencing point." It is admitted tluit there is no error in computation, and that, taking the measurement given in this deed, the area comprised within them is 50a. 3r. 25p. The (mly abuttals given are the two Government roads, i.e., the Woodford road and Yangery lane, and portion 15A on the south. There is no reference in the conveyance as there is in the advertisement, to the properties of Urquhart and McLachlin as adjoining the land. This deed was exe- cuted in escrow, and being produced in evidence appears never to have been registered. It has at the foot the usual receipt for the full amount of the purchase money. As appears by the correspondence, it was left with the defendant's solicitor, to be delivered up to the defend- ant on his promissory notes being paid. It does not appear when these promissory notes were in fact paid, and consequently when the deed became absolute, it having been up to then in escrow only. The defendant's solicitor states in evidence that neither of the notes had been paid when application was made to bring the land under the Act, but that he held the cash for their payment. PMPP 156 TO/iRKys CASKS. On 7th June, 1H84, the defendant lodged In the TltU'8 Oftlct' an application to bring the laud under the opera- tion of the [•387] Transfer of Land Htatute, Btatinj? it UH eontainiuK oCia. Mr. L'op. or thereuboutH, and an deHcribed in the deed of 2Mth April, 1884, which appearn to have been lodged in support of the application. Kubsequently a survey was made of the land, and it was found that, as fenced and occupied by Dowd, it con- tained an area of Cla. Or. 14p. The defendant there- upon, on 10th November, 1885, lodged in substitution for the previous application a fresh application to brinj; the land under the Act, stating it to contain Ola. Or. 14p., as described in a survey plan lodged with the application. By comparing the plan lodged in support of this second application with the parcels in the conveyance from the plaintiff to the defendant, it appears that the excess is caused to a tritiing extent oaly, by an excess in the length of the main boundary lines of the land. The substantial excess consists of a rectangular bloclc measuring 12 chains 12 links by 3 chains 30 links, and containing therefore about four acres, being included in the fences and occupied by Dowd, which is not included in the title deeds of the plaintiff, or in the conveyance from her to the defendant. This block abuts on the western boundary of the land conveyed, but extends in part beyond it. It is not, therefore, a question of a general excess of a few feet or inches in the measurement of one regular block of land. The excess here is mainly one quadrilateral block of four acres, capable of exact definition and location upon the ground, partially abutting upon, but not in any way incorporated with the land conveyed. Moreover, the four acres in question abut at the western boundary upon a road running into the main Woodford road, and thus access to it may be obtained independently of the land conveyed to the defendant. On 5th February, 1880, the defendant obtained a certificate of title for Ola. Or. lOp., that being found to MOyAUHAN v. (/LEESOy. 167 bo the ai'ciiratc conti'iitH of the area I'omprised in the phiii 1(h1k('(1 hy the defendant in HUpport of his applica- ti<»n, and not (ila. (h*. 14p. aH therein otuted. It would a|>peai' tliat after tliig tlie plaintiff for the ftrst time hccaine aware of the exceMM of the land, and on 17th April, ]HH(}, her HolicitorH wrote to the defendant's Holicitor, callini; attention to the fact that he was rndeavourinj? to ^et a title to [•088] four acres nore than the area sold to him, and proceeding : " The ve»;- (lor distinctly instructs you not to hand over the deeds of the property unless the said excess in area is excised from the transfer or conveyance, or unless the pur- chaser pays for such excess at the rate of £44 10s. per acre." If at that time the defendant's solicitor had still held the conveyance in escrow, as the plaintiff believed he did, this would have been quite in time to enforce compensation under the contract. But not only had he then parted with the conveyance, but the defendant had already, unknown to the plaintiff, obtained his certifi- cate of title for the entire Gla. Or. lOp., as to 56a. 3r. 25p. of it, upon the conveyance of the plaintiff, and as to the residue of 4a. Or. 31p. without the plaintiff's know- ledge or concurrence ; for both the original and substi- tuted applications by the defendant to bring the land under the operation of the Act were made without her knowledge, and no notice was ever given to her of the- intention of the defendant to endeavour to get this four- acre block included in his certificate of title. The statement of claim was originally based wholly upon an allegation of mutual mistake, and claimed pay- ment for the whole excess of 4a. Or. 31p. at the rate of £44 lOs. per acre. There is no doubt, and I so find, that the plaintiff intended to sell, and the defendant in- tended to buy the entire farm as occupied by Dowd, and that both of them at the time of entering into the con- tract believed that it contained an area of 56a. 3r. 25p. only, as stated in the advertisement for sale and in the conveyance. I ;l IP I ■ 15H ToHltHyS CA.iH.i. Th(> contt'iu't of l.'2nd April, IHIU, contiiiiiH a provi- sion : ** If any error iihoiild be dlm-overed in the dim'rip- tion of the prop«>rty fiold, ('ith«>r att to quantity or othorwiHe, HUi'li error hIuUI not entitle the purohaier to annul the Hale, but the Name Hhall be the Mubjeet of eonipenMation/* TalcinK it that the property iold wan th(> land as occupied by Dowd, there waH clearly an error in the Htateiuent of th(> area of the land, and the vendor, if aware of tluit ernu', niinht have inMit4tt>d upon oomiKMi- Hation under thlH clauHe. Hut the defendant oontendH that tin* conveyance having been executed, tlie trauHac tion Im complete an between the partieM, and cannot now be re-opened. If the conveyance had [•;iHJ)] given the defendant the excess now in dispute, there might have been some force in that argument. Hut in fact the con- veyance only gave to the defendant the land for which he paid, and gave him no title whatever to the four-acrt* block adjoining. It is proved that tlie plaintiff had occupied that four acres in common with that to whlcli she had title, for thirty-three years. It is admitted between the parties that she so occupied it for more than the statutory period of fifteen years, so that at the time of the sale she had an absolute title to that land capable of conveyance by her or upon which she could have main- tained ejectment. If the defendant had sought to have had this four acres included in his original conveyance, or had afterwards sought a conveyance of it from tlie plaintiff, the plaintiff would at once, and before convey- ance of the land now in question, have required compen- sation for the excess, and would, under the condition, have been entitled to insist upon it. But by the course which the defendant adopted of, behind the back of the plainf.ff, obtaining a statutory title to this land which was not included in his convey- ance, and which he had not paid for, he deprived the plaintiff of all opportunity of asserting her claim for compensation. It is therefore impossible for him now ef- fectively to rely upon the conveyance by the plaintiff to him, as depriving the plaintiff of the right to compen- sation for land not included in it, and which would still MOSAUHXy r. ULKKSny, 169 remain veNfcd in t)i<> plaint ItT Init fot* tlic fact of ttie tlt'fcndant iiavin^, witlioiit lici' IcnowifilKc, obtain«'d a nM-riti of til If including it. Tlir apt>li defendant to brin^ thiM ftnir-aeii' bioelv undiM* the Aet, uitliout any coniniunicatiiui with or notiee to the plain- till, waH wholly nnJuMtitl(>d, and the plaintifT wan entitled, HO Hoon aH Hhe discovered the mistake in the area, lo insist either on bein^ paid f(»r tliese four acres or npon liiivinK it apiin vested in l}liSt, or IfMM " In tlic «oiiv<',viiiM'«'. Hilt ii moIIiI block of four tirrcH, iMii'tliill.v iiliiiltlii^ ii|MMi the land cunvc^vt'd, cannot Im' covci'imI h,v Mllcll «'X|»r«'HMionM. Tli(> plalntltT Im cntltlt'ti, In lli<> one aM|i4>ct an coni|H>n HHllon, In tlM> other aH daniiiKcM, to the value of tlic l>lock of four aci'CM or tlicreabontH, I.e., tlic block which I have tlcHcrilied aM containing nn area of 12 chahiN 12 llnkM In .'{ chainM M ItnkH. The pric(> bid at the auction wan for land and bulldin^M. N<»ne of the bulldiufiH are on tluH land, and it would be unfair to tak(> the rate )H>r acre I id aH the value of it ftu* aMMt'HMin^ coni|M>nMatlon under tile contract. In aHHeHHinK daniap'H und«'r Sec. 144. although the |>ric(> bid nii(;lit alTord mouh' evidence of value, it could not be taken uh the uit'aHure of dania^eH. I'lileHH the partleH can a(;ree between theniMelveH, I Hhall refrM to aMc<'rtain the value of the block of land in (pieHtion at th(> time (»f the defendant takin;.:: poHHeHNion <»f it, which he Htatew to have been a week or tw«> after he luMiKht, which waw on the 22nd [*'.W\] of A|nil. The plaintitf will be (>ntltled to payment of tliat amount w hen aM«ertained, together with tlu? coHtH of this a<'tion. Itcfcr to f'luiinlxM-M ti>i't.iin tin* viiliif, on tin- «Uli Xlny. IHHt. of thc> Hrcii of Inntl 112 eh. 12 liiiku, by a cli. 'M llnkM. oolnnri>ril<>r ft>nrtain<>(l. OrcItT ilff«>ntlant to pay plaintitT her coMtM of thiH ai-tion, incliiiIinK )ii>r c-oHtH uf Huch ouquiry in ChanilxTH. Ui-fiT to tax. SoIicitorH for plaintiff :— WatHon & Mori;an. for defendant :— l{rit,'>{8 & Snowball, for Ardlie, War- Sfin iin lioitorH nibool. nrssiS'uitAyt •, auNDRY, ir.l SuriiEMK C(HUT, VicnmiA, IM7(I.) [2 V. L I" (li.) l!>7. CUNNINCIIIAM V. UUNDKY. Sfifriftr in>rfi>ruinuit' — Snh of lumi — Vnerrtiiinhj of nifffmrnt'^ I'otMmon — iinnnjtr »;/' l.aml Stiitule {So, .70/), N.c*. /.O, CtO, AMIioiikIi II wrItli'M nKi'ci'iiH'iit fur tli«> hiiI«> ut liiiul wiia ao miriTtiilii, iiM III tin- laiiil liiifiiilctl to lu* noIiI, tlint it wmilil nut Ik> fiiforrfil nt law, tlii> r*itirt lu>lil that |HiNH<-MMiiiii, <-uii|ilt>il with tin* iiKri'fiiii'iit, witN Niitllclfiit to iiiiik«> It iMiforci'iil)!*' In iMinity, ninl tliiit it roiilii Ih> fiiforctMl iitfiiliiMt II Hul)Mi>i|ii«>tit iMirchnHt'r, with iioti<'i>, fruiii thx vcmlor, iiotwithHtiuiilliiit Ht'cH. 4U ami 50 ui Act No. .'tOl. Hntt hv (Icoi'K*' (*iinninKl)am ii({aiiiHt Rdwnrd Oiiudry iiiul •lohii Hniiirt. Tlu' iiiattM-ial alh'KatioiiM of tho bill won* : — On the L*;inl Hfpt«'inb«*f, \Hi\U, t\u> defendant, FMward continued in, poHHeHttion ; and had Hpent a conHiderable miiiii of money in improve- iiientH. In April, IHT.'t, the defendant (Sundry Hold thia hind, together with other land adjoining; it, to the defen- dant Smart ; but, aH the plaintitT alleged, with notice of tlie plaintitf'H claim. The bill prayed for Hpecitlc perform- ance of the a^'reement of the I'.'trd September, 1S<»M, and that the defendant Smart should be ordered to tranufer the land therein mentioned to the plaintitT. The auHwer of the defendantn and the evidence, which waH of a conflictinj; nature, are Het forth at length in the judgment of the Court. Mr. Holroyd and Mr. Worthinjjton for the plaintiff : — The plaintiff is entitled to the relief claimed by the bill: Robertson v. Keith,' Townend v. Toker.2 xhe short judgment in Calvert v. I'ate,^ should not be con- » I V. R. Eq. 11 2 L. R 1 Ch 458 3 ArguB. 8 Aug., 5 and Sept., 1807. H.T0R.CA9.— 11 162 TOnitKSS CASUS. Bldered suttifient to overrule that decision. As to the umount of coimiderutioD : Withy v. Wooliey,* Harrisou V. Guest." [•198] Dr. Mackay and Mr. Fullerton for the defendant Gundry, referred to Conquest's Case," Sugden on Vendors and Purchasers (13th Ed.), 439, Calvert v. Pate.^ Mr. Lawes and Mr. a'Beckett for the defendant Smart : — The contract was uncertain, and, therefore, void : Pearce v. Watts,^ Fry on Contracts, 102 ; and the second agreement cannot confirm the first, for the measurements are different. As to the effect of the " Transfer of Laud Statute " (No. 301), Sees. 49 and 50, and the meaning!; of the word tenant : Robertson v. Keith," Calvert v. Patt.*" Mr. Holroyd in reply : — Uncertainty in the agreement. caunoL be taken advantage of by the defendant Smart : but the uncertainty is not shown. Where there is am- biguity, parol evidence may be given ; Doe d. Freeland v. Burt," Paddock v. Fpadley,^^ Lyjg y. Richards-^^ As between the plaintiff and Gundry, the measur^- mentH have been sufficiently fixed by the fences, and assent thereto. We are entitled to performance as against Smart : Fry on Contracts, 322. As to ambigui- ties, Jarman on Wills (3rd Ed.), p. 399. Cur. adv. vult. MR JUSTICE MOLESWORTH :— Tlie defendant in this case, Mr. Gundry, became en- titled to land, about forty-seven acres, by grant from the Crown in 1864, and was a proprietor thereof under tlie *7 T. R. 540. B 6 De G.. M. & G. 435. 8 L. R 1 Ch. D. 334. 7 Argus, 8 Aug., 5 and 6 Sept., 1867. 8 L. R. 20 Eq. 492. » 1 V. R. Eq. 11. 10 Argus, 8 Aug., 5 and 6 Sept., 1867. 11 1 T. R. 701. 12 1 C. & J. 90. 13 L. R. 1 Eng. & Ir. Ap. 238. CUNNINaHAM v. GUN DRY. 103 Act No. 301. lie ^ave a small portion of it — less than an acre — in 18(J7 to Mrs. Hooper, who had been his servant. They measured the land in a manner. She built a store upon it, at a cost of £100. In July, 1869, she married the plaintiff, who thereupon took possession of the small por- ^ion, and has since remained and resided there. Lt had a creek to the south, a road to the west. [•199] In September, 1869, the plaintifif wished to get a title to this land from Gundry, who consented, and executed an instrument dated September, 23, 1869, " sold to Mr. George Cunningham part of allotment 9, in l*ue- bla, for the sum of £4, as seen on plan below : " and there was a roughly-drawn plan below showing the creek, a quadrilateral figure in lines, the length of the lines bounding north and south. The £4 price was paid, the value of the land, and Gundry could not honestly ask more. The plaintiff laid out £150 more in buildings on the laud, and completed the fence. In April, 1873, the defendant, Mr. Smart, met plaintiff near his house, who brought him there, and in conversa- tion informed him that Gundry wanted to sell his farm. (PlaintifiF's wife says she told Smart plaintiff had bought his part.) Smart wanted to purchase such, went with plaintifif to Gundry's, and Smart and Gundry proceeded to make a bargain of sale at the price of £450, to be paid by part cash, part bills to run for two years. According to tlve evidence of Gundry, his daughter, and the plain- tiff — which Smart endeavours to contradict — plaintifif's land and fences were looked at, talked of, and expressly excluded from the proposed bargain, and Gundry says that he told Smart that plaintifif had no deed for his piece, and that if Smart thought proper, he, instead of him, might convey it to plaintiff, to which Smart as- sented. Smart did examine Gundry's buildings, did not attempt to examine plaintifif's, which cost £250, and would be a very material ingredient of value if he at all imagined he was purchasing them. Gundry brought Smart to his solicitor, Mr. Speed, to complete their deal- ing, who acted for both, Smart having a friend besides to look after his interest ; and Speed was never informed of any exception to the bargain, but understood that all 164 TORREyS CASES. the lands in Gundry's grunts were to pass. And various questions were put as to wliether all the land was to pass without encumbrance, which should have made plaintiff's land be mentioned, but did not. A written agreement between Oundry and Smart, May 3, 1873, was drawn and signed. On June 30, Gundry si,y:ned a transfer, as under the Act No. 301, of the land without exception, which, with the grants, remained iu the hands of Speed, to become a trustee for Smart when he paid the last bill. [*2ClO] There is evidence of a subsequent conversation in which Gundry reminded Smart of plaintiff's rights, that there should be no mistake. Smart states a conversation between him and plaintiff, in which the latter told him that, by a mistake, Gundry had put yards instead of feet in the conveyance to him, so he could claim land up to Smart's house. IMaintiff was not cross-examined about this. The conversation. Smart states, was in a bantering tone — if anything, apparently a hoax. If it is worth noticing, it shows that Smart supposed that plaintiff held a document from Gundry giving some rights against him. Smart showed a disposition to dispute plaintiff's title by, on May 4, 1874, serving him with notice to quit in a month, and that he should be required to pay rent after. This put plaintiff into action, and he consulted a solicitor, who prepared a proposed transfer with a plan attached, containing much more than his land, which was sent to Gundry, and Gundry thereupon went to Smart to pro- cure a more accurate recognition of plaintiff's title. There is a good deal of contlict of evidence as to what occurred. The plaintiff's land was measured in Smart's presence (he says, protesting that it was without preju- dice to his rights) ; Gundry and his brother represent that Smart insisted as a condition of his recognition that he should get the £4 which plaintiff had paid for the land. There is a signed agreement, which, from compari- son of waiting, notwithstanding Smart's denial, I sm satisfied was signed by him : — "June 8, 1874. I, John Smart, have sold to George Cunningham, for £4 sterling, all that piece or portion of CUNNIUQHAM v. GUNDRY. 166 land notified hercMinder, beinjjf a portion of Crown allot- ment 1), Sec'. Hi!, pai'iHJi of I'uebhi, ('ounty Orant, aecord- ing as it is now fenced by George Cunuiugham. Received payment same time." This has a plan annexed of a quadrilateral with length of all sides, the north and south being a little shorter than the plan of September 23, 1809. Their agreement was on the same day handed by Gundry to the plaintiff, and has remained with him since. At the same time an I. O. U. from Gundry to Smart for £4 was prepared, and signed, and handed to Smart, and has been kept by him since. Smart and his witness say that the only writing signed was by Mrs. Cooke, Smart's housekeeper, in his name, and Smart says that he uuJer- stood he agreed that plaintiff should remain for an undefined time at an undefined rent, and that the £4 was for rent, and not for purchase. [*201] I am inclined to think that there were more meet- ings than one, and more signed papers than one, but adopt the paper June 8, produced, as a valid contract. About June 23, plaintiff tendered a triinsfer to Smart, v»'hich he refused to sign. As to their conversation, they differ ; both agree as to Smart saying that his " title " was not complete until he paid the balance of his purchase money. The parties let matters remain as they were. Smart's transfer was completed at the office on the 27th April, 1875, about ten days before the last bill for the purchase-money w'as payable. The reason of this does not appear. Plaintiff, through his solicitor, applied to Smart for title and transfer, and, being refused, had the bill sealed, March 9, 1876, praying a declaration that he is entitled to have the agreement September 23, 1869, specifically performed or procured to be performed by Gundry, and, if and so far as necessary', by Smart, and that Smart may be ordered to transfer the land. I do not think that a person taking the agreement of September 23, 1869, to the land, and having the boun- daries of allotment 9 shown to him, could decide what land was intended to be conveved. I am therefore ^w 166 TURREXS VASES. iiu'lined to think that it wuh umertain as a written agreement, and not enforceable at law ; but, coupling it with the possession by plaintiff's wife and himself, I think it was suflBciently certain to be enforceable in <'quity. If so, according to my decision and views in Robertson v. Keith." It was enforceable against Smart taking a transfer under the Act No. 301. 1 have reconsidered the matter and retain my opin- ion. A case had been previously decided by the Full Court, of which I was not then aware, Calvert v, Pate.'" As far as I can recollect the facts, land was granted by the Crown to an infant, his mother got possession of it, married, and died, and his stepfather conveyed it to his creditors. The action was an ejectment by plaintiff, hav- ing a certificate of title, claiming under the infant, against the defendant claiming under the stepfather, so that plaintiff's title was good both at law and in equity. [•202] There had been some permissive occupation of the defendant, the particulars of which do not appear, in refer- ence to which the defendant's counsel insisted that the ejectment should be preceded by a demand of possession. The Court is reported to have said that the word "ten- ant " in the Act No. 301, Sec. 49, regarded tenants for years, not such as in this case. This being an ejectment, no defence of equitable title could avail or be discussed. All that could be decided was that a tenant at will was not entitled to demand of possession before ejectment by one holding certificate of title. It has been argued on behalf of the plaintiff, that Smart's availing himself of a transfer against him after his verbal agreement of April, 1873, and written agree- ment of June, 1874, would be fraudulent under the Act No. 301, Sees. 49, 50, so as to make the transfer inef- fectual. I express no opinion as to that, but I think it enough to say against Smart that, before he got the transfer, he contracted with Gundry to confirm plain- tiff's title out of the estate which he was to acquire by it, and that it being forgotten by mistake in the docu- "1 V. R. Eq. 11. IB Argus, Aug. 8. Sept. 5 and 6, 1867. I'^j-'./.''" CUNNINGHAM v. OUNDRY. 167 ment signed at Kpeed's, did not avoid his contract in equity ; and that again, whilst his title under tlie trans- fer was incomplete, he contracted with Oundry, June 8, 1874, to sell and convey to. plaintiff, Gundry procuring for plaintiff that which he was bound to give him, and that he renmins subject to i)erform these contracts. I shall declare the plaintiff, George Cunningham, entitled as against the defendant, John Smart, to an estate in fee simple in the land comprised in the agree- ment of the 8th day of June, 1874, in bill mentioned ; order the said defendant, John Smart, to execute a pro- per transfer of the said land to the said plaintiff at the said plaintiff*s expense, such transfer to be settled by the Master, in case the parties differ ; order the said plain- tiff to pay the costs of the said defendant Edward Gundry, and that he be paid the said costs and also his own costs of this suit by the said defendant John Smart. Refer to tax both the said costs. Liberty to reply. From this judgment, the defendant Smart appealed to the Full Court. Mr. Lawes and Mr. a'Beckctt, for the appellant, adduced the same arguments as before the primary judge, and cited (in addition to the cases and authorities [•203] then referred to) Munro V. Sutherland ;" and, as to an appeal on the facts; Sugden v. Lord St. Leonard's," as qualifying in Re Wolfe." (Mr. Justice Fellows: — You must show that in no view could the primary judge be right) Mr. Holroyd Tnd Mr. Worthington, for the plaintiff, and Dr. Mackay and Mr. Fullerton for the defendant Gundry, were not called upon. THE CHIEF JUSTICE :— We are of opinion that the judgment appealed from is right. I express no opinion as to Robertson v. Keith," " 6 A. J. R. 139. " L. R. 1 P. D. 154. " 1 V. L. R. I. 31. » 1 Vio. R Eq. 11 ; 1 A. J. R. 14. 1 '■i 168 TOHItEXS CASKS. and do not rest on tin* decree in tlint ease, for the eon- eluHion which I have drawn in tlie preHent eawe. The Act No. l\{)l, Hec8. 4J), 50, and otIierB, protects a purchaHer of land from all incnmbrances and truHts ; but it docH not absolve hi .. from the oblipition of performing an express contract into wliicli he has entered, or deprive tliis Court of the i)ower to enforce such performance. It is unnecessary to decide what tlie document signed by Hmart should be termed ; it is sulticient to say tliat I think he recognises a trust, whicli can be enforced against liim. I also think that Gundry was a necessary party. As to costs, the facts have been found against the appellant, and, therefore, he must be liable for them. 3Ir. Justice Fellows and Mr. Justice Stephen, con- curred. Appeal dismissed, with costs. Solicitor for plaintifiF : — Hopkins. Solicitor for defendant Gundry : — Cuddy. Solicitors for defendant Smart :— Davies & Campbell. -ftu -^ ViCTOHiA, 1886.— Webb, J.] [12 V. L. R. 748. TAYLOR V. THE LAND MORTGAGE BANK OF VICTORIA (Limited). Transfer of Land Statute, ss. 42, 117 — Caveat — Contract of sale — Specific performance — Transfer — Power and duty of tramferor to have caveat removed. The lodging of a caveat against registration of any transfer of land under the Act only throws a cloud upon the title of the regis- tered proprietor, and does not. amount to such evidence of an abso- lute want of title as to induce the Court to refuse a purchaser specific performance of a contract of sale on the ground that the vendor has no title. It is the duty of the vendor to have the caveat removed, even where it has lapsed, and the re^^iatrar is in error in treating it as in existence, the vendor is bound to take the necessary steps to compel the registrar to register a transfer. [*749] Action by purchaser against vendor for specific perfornmnce of two contracts for the sale of land, or, in the alternative, for damages for breach of contract. TAYLOR V. THE LAAIJ MOHTUAfJK HANK. 160 lt»'for(» April, 1H71, the dcft'iidant, tlx* Land Mortj?aKe liuiik of N'irioria (Limited), Immiiiih' the owiut of land, including; the Hnt)j<'ct nuittcr of tliiH action ; and in tliat month a ('(M'tificate of title to tlie land, free from encnni- branees, was iHsned to it. On the '2'M'd Meptember, 1H84, the bank still held the dean eertHlcate, and on that date one Ilnf^h Peek lodged a <'aveat elaimin}; an ecpiitable interest as niortpijxor to the defendant in this and other land, and forbidding the rejjistration of an.v person as traJisferee or proprietor, exeept snbjeet to his equitable interest. On the Dth October, 18H4, notice by the Regis- trar of Titles of this caveat was given to the defendant ; but, notwithstanding this notice, the bank, on the 13th and 17th November, put uj) the land for sale by public auction, and sold to the plaintiff John Harr Taylor, a portion of the land comprised in the above certificate, by two contracts of the 13th and 17th November, 1884, respectively. The particulars and conditions of sale in neither case made any reference whatever to the caveat or Peck's alleged interest, but contained a condition in each case that " upon and at any time after payment of the whole of the purchase money the vendor will sign a proper transfer to the purchaser, such transfer to be prepared by and at the expense of the purchaser." The plaintiff paid a deposit at the time of the purchase, and subsequently the balance of the purchase money. On the 22nd April, 1885, his solicitor made a requisition that Peck's caveat should be withdrawn before completion, but receiving no answer, on the 2nd June he forwarded a draft transfer to tlie defendant's solicitors subject to the requisition being satisfactorily answered. Negotia- tions then took place between the parties as to whose was the duty to get the caveat removed. The transfer had been executed and lodged for registration, and both plaintiff and defendant contended before the Registrar of Titles that Peck's caveat had lapsed ; but the registrar regarded it as still subsisting because the Full Court had nuide an order upon the application of Peck that the registrar delay registering any dealings by the bank with allotment 105A, which was a portion [*750] of the land not sold to the plaintiff but included in Peck's 170 TonitKyS CAUKS. nivfiir, iM'iuIlnn tlu' lu-ai'lnu; of an a«*tl«m by IVck uguTiiHt the bunk, which order the reglHtrar regardt'd um an exten- Hlon of the whole caveat. On the (jth Ai»rll, 1880, that action was diHniiHHed witliont prejudice to any action whicli the parties really entitled to the properties might bring. Neighbour and HodgeH for the plaintiff: — The meaning of the words " proper transfer " in the condition, is u transfer which will confer on the plaintiff such a title as can be registered ; for, by Hec. 42 of the "Transfer of Land Statute " (No. .'{()1), unlike conveyances under the old law, no tijinsfer is operative to pass any estjite or interest in land under the statute unless and until it is registered. I'nder Sec. 117 the only person who could move to have the caveat discharged is the registered pro- prietor, viz., the defendant : Exp. Davies & Inrian ; ^ and it is submitted that it is his duty to do so. The bank sold the land, knowing of the caveat, of which the plain- tiff knew nothing. Under Sec. 117, Peck's caveat lapsed after 14 days, and the Registrar of Titles acted illegally in refusing to register the transfer then, and the only person who could compel him to register the transfer ^^ as the defendant. The action commenced by Peck did not relate to the land, which is the subject of this action. a'Beckett, for the defendant : — The defendant has done all that it was under any obligation under the con- tracts to do, in executing a transfer in favour of the plaintiff. The fact that that transfer has not been regis- tered is owing to no fault on the part of the bank, but to the improper refusal of the registrar to register it, for which the bank cannot be held liable. The caveat was no obstruction to the registration, for it had properly lapsed. Neighbour, in reply : — A vendor is bound to give a good title to the purchaser ; Dart on Vendors and Pur- chasers (5th Ed.), 591. The caveat is an incumbrance on the title. There is no title at all under the statute until the transfer is registered ; therefore [*751] it is the ven- dor's duty to see that it is registered, and to see a cer- tificate of title into the purchaser's hands. The pur- Ml V. L. R. 780. TAYLOR V. THE LAND MORTUAUE BANK, 171 rhaHt»r Ih |M'rftM'tl,v ]M)\v<»rIt»HH, and aci-oi'diiiK to Exp. DavicH & Iniiian, tlu> only iH>rHon who can compel *Ue rcjflHtrar to ivKiMtcr Ik the vendor. It is Hubinitted t'>»it the phihitilT Ih entitled to have both coutraeti) speci- Hcally performed. Cur. adv. vult. Webb, J. — Action by purchaser against vendor for Hpecific performance of two contractH for the sale of hnid, or in the alternative for danuijfes for breach of the contract. On Ist April, 1H71, a clean certificate of title for land, including the Iocum in auo in this action, w'as issued to tlu? defendant, whicli thereupon became tlie registered I»roprietor of the land, free from incumbrances. On 23rd September, 1884, Mr. Hugh Peck lodged with the Regis- trar of Titles a caveat. No. 10,411, claiming an equitable cxtate in this and other land, and forbidding the regis- tration of any jjerson as transferee or proprietor, unless made so expressly subject to his claim. On 9th October, 1884, a notice of this caveat, signed bv the Registrar of Titles, was served on the defendant by a registered letter from the Titles OflBce. Notwithstanding this, and dis- I'egarding the caveat, the defendant, by two contracts of the 13th and 17th November respectively, contracted to sell to the plaintiff two parcels of land comprised in the certificate of title and caveat already referred to. The particulars and conditions of sale make no reference to (he caveat or to Peck's alleged equitable interest. The +hird condition in each case is, " Upon or at any time after payment of the whole of the purchase-money, the vendor will sign a proper transf*»r of the property to the purchaser, such transfer to be prepared by and at the expense of the purchaser." The plaintiff paid a deposit at the time of each purchase, and gave acceptances for the residue of the purchase money which have since been paid, and it is admitted by the defendant that the entire purchase-money has been paid by the plaintiff to the defendant. On 22nd April, 1885, the purchaser's solicitor sent in a requisition that Peck's caveat must be withdrawn 172 TonHUSS t'AShU, im < b4>foi'«> (•(iiiipl<*tion. [*7r)l] No iiiiH\v«'r wan rctiirniMl to tItiH by the plaintirr'H Holicitor forwarded to tli(> dcftMidant'H hoM oitoi'M a draft tniiiHfri', "HuhJtM't to the n'(|iiiHUIoiiH d(>- liv»M*tMl by im* lu'iuti HatiHfactorily aiiMW«»r«»d." FuiMlH'r I'oi'i'L'HpoiidciM'c and lnt«'fvi»*>vH b«'t\v«'»'n tin* Molb'ltopM of th«' (wo particH took place, each aHHerting that it waM the duty of tlu? otlu'P to m't INm'U'h caviMit removed, but botli uniting in (■ont(>ndin^: b(>fore tlie * /{{iHtrar of TitleH, whom tliey perHonally jointly waited on, tliat tlie caveat )iad lapsed, and on^ht to be diHre^arded, and that the trauHfer from defendant to ])laintltT, whiidi had been lodged for regiHtration, ought to be regiHtered. It nppuarH in evidence in thlH action that on !)th December, 1M84, the Full (>ourt. upon the application of Teck in respect of his caveat No. 10,411, made an order *' that the Ueiiistrar of Titles delay registering any deal IngB by the Mortgaged Bank of Victoria (Limited), of allotment l()5A, parish of Nunawading, for the periml of one month.'' This order, whatever, from its peculiar language as drawn up, its elTe<'t might be, in no way affected to deal with the land the subject of this action. rUit the Titles Office regarded the order as in effect an extension of the whole caveat. Before the expiry of the montirs extension, Peck commenced an action against the ])resent defendant and the Registrar of Titles, by Avrit of summons claiming an account as equitable mort- gagor to the defendant bank, of the lands comprised in certain specitied transfers to it, and an injunction to restrain the Registrar of Titles from registering any deal- ings by the bank with any of the land contained in such transfers. It appears in evidence that ttmt writ of sum- mons covered the lands the subject of tliis action. No injunction was ever obtained by the plaintiff in that action, but Mr. (Mbbs, the Registrar of Titles, who has been called as a witness for the defence, speaking of the practice of the Titles Office, says: — " We regard an action commenced in support of a caveat, to which action I am made a defendant, as equivalent to an injunction. We apply that equally to land already under the Act, as to land being brought under the Act" — apparently TAYLOR V. THE LASD .VoHTfJAHE BANK. 173 tii'iitlntj: Hoc. 24 of tin* Act iim appltnibh* to land alrciidy iiiHlcr the Act, aH well un to land bchiK l>i'ouKlit under tlu' Act. For tliitt rcnHon [•75.'l] the rcKiMtrtu* rcfuwd to ■■(•({iHtcr tlu> tranHfcr fr(»ni defendant to plaintiff, |H>ndlnK the action of l*ecl< against the preHent defendant bank. On the 0th April, IHSd, that action waH dlHnilHM'd without pi-ejudice to an.v action which the partieH really entitled lo the propertieM aM to which redemption wiih Hou^ht might hrin^'. It luiM been contended before me by the def(>ndant that thiH view of the TitleH Office iw ernuieouH ; tliat I'ecii'M caveat had in fact lapHcd, and hlM iuHtituting an action claiming an injunction but without obtaining one, (lid not operate to Iteep the caveat alive ; tliat Hec. 24 applieH only to the case of bringing land under the Act, and not to a caveat against a dealing with land already under the Act, which Ih governed by H«m'. Ii7. Tlie regis- trar is not made a defendant in thiH action, the plaintiff contending timt lie (the plaintiff) in in no way con<'<'rned with the removal of the caveat ; that it Ih tlie duty of the vendor and not of the purchaser to get it removed so as to enable him to make a good title. I am not, therefore, in a position to determine whether the registrar, in the course he has adopted, has acted rightly or wrongly. I iiave only heard one side of the question ; I have nobody Ix'fore me to represent the otlier. I have no power in tliis action to direct the registrar to register the transfer if I should be of opinion he ought to do so, and any opinion 1 expressed would be mere brutum fulmen and extra judicial. The defendant urges the refusal de facto of the regis- trar to register the transfer to the plaintiff, as an answer to this action ; and in its defence " submits that the refusal of the Registrar of Titles to register the said transfer is Illegal, and that it is competent to the plain- tiff to compel the registration of such transfer by pro- ceeding against the registrar, and that this defendant is Lot answerable to the plaintiff for the illegal refusal of tiie registrar to register the transfer." The real question, therefore, which I have to determine between the parties to this action is upon which of them lies the duty of 174 Ton HUM'S V.i'Hiii. ycttliiK til*' cuvi'iit rcinov«Ml tii' M thu rvgiittrution of a conveyance under tlie old NyMteiu of t'onveyanciuK '•' In deterntiniuij; thiM queiithtu 1 think each caMU luuMt to a great extent deiH>nd upon itH own circuniMtuntteH. ll(>re the caveat wan lodged and notice of it given to tlic vendor hefore the contract of nult was entered into. Tiii> caveator clainiH an e vendor. Th«> circuniMtancet) and factM uecettmiry to rel)Ut HMcli a claim muiit be known to the vendor, and would not, in the ordinary course of thingM, be within the cogniHunce of a purchaser. A caveat ho lodged muHt be regarded us an incumbrance or blot on thu title whicli it is the duty of the vendor to remove. At the time this action was commenced — 8th October, IHHSi— the defen- dant, as registered proprietor, was tl»e only party wl»o could take steps for the removal of the caveat. Exp. Davies & Inmau ; ^ and although the subsequent Act, No. 872, See. 74, enables any person claiming under a transfer signed by the proprietor to upply to have a caveat removed, that Act in no way affects the ground of the judgment of the Court, which was that having regard to Sees. 117 and 135, the registered proprietor, and not the transferee, is the proper party to apply for registration of a transfer. Both these sections are, to my mind, clear upon the point. Sec. 117 requires notic«' to be given to the caveator of any application for regis- tration. It provides that except in certain cases " every caveat lodged against a proprietor shall be deemed to have lapsed upon the expiration of fourteen days after notice given to the caveator that such proprietor has applied for the registration of a transfer." No provision is made for any notice to the caveator of the application to register the transfer made by the transferee. Then Sec. 135 gives to the proprietor alone the right to require « 11 V. L. R. 780. rAYl.ol! I. THk' t.ASIt MtniTUAtik hASK. 175 from tlio ivutNtrar tli«> KroinidH of IiIm r«>fiiNiil to rt>K!Mffr a tniiiHlVr, ami to hiiiiiiiioii ttii> rc^lHlrai' to Mulixiaiillutt* iiiul uphold Mihli mrouiitlM. The tiaiiHft'iTc could not pro- <<>«>d uiidi'i' tlilM mfiiH«>d to icgUti'i' the IranHft'i*. Tlir dilTtM't'iiic lM>t\v«M>ii tlu> r«'({lMtration of II coiivi'.vancc iin)l< i- \\u* tdd law, and tlif r«'){lHiratlou of a tranMfrr under ilic Mtalulc, Ih nninifi'Mt. Indt'i* tlic 4dd law tilt' ('onv«»,vanr«» dlv«'Ml«>d [•7."^.">] out of tin* viMidor all IiIh «>Mtat<>, and when lu> liav<>i'}'thinK n(M'«>HMar.v to dIvt'Mt th«' cMtati' out of lihuMcIf and voMt it in the purclniMcr, and hi' hail no fditlu'i' ronct'rn in th(> niHttor ; tin* puirhaHrr nii}:ht I'i'KiMtor th<> «onvt>van4*(', or nitt, aH lu> pIcaHcd. Itut und«>r tilt' Htatutc, S«M'. .'iS, tht» rt'MfiHtration, and not tin* I'xrru tion of th«' tranHf«>r, (HvchIh the cHtatc I'ntil tlicn, liie estate and interest of tlie proprietor remain in liim ; and until then tli(> proprietor Iuih not done all that is neceH- sary to divest the estate out of himself and vest it in th«» transferee. In tills rase I regard P(>ck*s rnveat as a quaHi-oncum- l>rance, which it was the duty of the d(>fendant to get removed. If it still BubslBts, it forms, until removed, an elfectual obstacle to making a good title to the plaintitT. If it has in fact lapsed, and the registrar erroneously (••mtinues to regard it as existing, tlie defenne, and not the plnintitf, can talie steps to ccmipel the regis- trar to register the transfer. The existence of a caveat oidy throws a cloud upon the vendor's title, and does not auiount to such evidence of an absolute want of title as to warrant me in refusing specific performance on the ground that the defendant has no title. The plaintiff is entitled to judgment for specific per- formance of both contracts, witli an enquiry as to title if either party desire it. If not, I will order the defen- dant to procure the registration of the transfer already lodged at the Titles Office, and give tin' plaintiff his I'osts of this action. If an enquiry as to title is to be directed, I will reserve further consideration and costs. If the title be reported against, the plaintiff will then 370 TOIlREyS CASES. be eiititU'd to jiul^jiuent for dumaKt't) on his alternative claim. Solicitor for plaintiff :— Maddock, Solic'itorH for det'oudant :— Brake & Gair. Victoria, 1S76.— Molesworth, J.] [2 V. L. R. (E.) 1G5. THE SHAMROCK CO. (Registered) v. FARNSWORTH. " Miniuif Statiiti; 1865" {Xo. HOI), «.v. 13, ^i-i—Mininy lease, coiHjirininif road abuttiny on alienated land — Eiyht of owner ad medium jdum — " Transfer of Land Statute " — Conclusive- nenn of certijiiate of title not jnodueed. A mining lease, under the " Mininq Statute, ISO.")," though it may include a public road, cannot give any right to mine under the half of the road which has prcviouHly become private property by virtue of a Crown grant conveyi)ig the land abutting upon it. Where a mining leasee has obtained a certificate of title undet the " Transfer of Land Statute," he must produce it in a suit in which he would rely upon it as conclusive. Motion for injunction. l*y an indenture of lease, 12th July, LSfiG, ihe Crown, under ' The Mining Statute, 1865,- ' granted and demised unto one Clarke Magee, certain land in the mininii! dis- trict of i^andhurst, for a period of iifteen years. In August, 1S71, Magee transferred the lease and i-remises the»'eby demised to the plaintiff company, and thereupon a certificate of title to the land comprised in the lease was, on the 12th August, 1871, issued under the provi- sions of the " Transfer of Land Statute " to the plaintiff company for the residue of the term. The company entered into possession, and spent large sums of money in mining. The defendant was in occupation of land adjoining the lands of the plaintiff, and the plaintiff company alleged that he had trespassed on its land and removed large quantities of auriferous quartz. The bill prayed that it might be declared that the defendant had trespassed upon the lands of the plaintiff ; for an ac- count ; and for an injunction. SHAMROCK V. FAfNSWOftTH. 177 [*1(»(>] In jumwer to the plaintiffs' bill, tlu» defendant stuted that he was the owner in fee HinipU^ of allotintMitrt 1 1 and 12, Hec. 2;{«, in the tit.v of Sandhurst. His title to allot- ment 12 was by Crown grant to himself, dated 30th April, 1855, and to allotment 11, by Ciown fii'ani, dated 2lHt December, 1854, to one Andi'ew MHJrejjor, who had, on the yist August, 1801, conveyed this allotment to the defendant, lioth these allotments abutted on a public street, and were described in the Crown grants as being bounded on the south-east by the street. In virtue of these grants, the defendant claimed to be the owner in fee simple of one-half in width of the street so far as it abutted on his allotments. He had been in possession nine years, and had been carrying on mining operations ; and during the last three years had been mining under llie street. This street was claimed by the plaintiff com- pany under its lease, but the defendant denied its right, and alleged that he had never trespassed upon the land claimed by the plaintiff, except upon the half of the street, which he claimed a right to by virtue of the Crown grants. Mr. Holroyd for the plaintiff : — The first point l^ whether the defendant can be allowed to say, as against the certificate of title, that he, by virtue of his (Jrowu grants, has any ownership in any part of the road by his being the owner of adjoining land. We submit that, as to the surface of the road and the mines under it, the certificate of title is conclusive. An existing Crown grant, unregistered, cannot be set up against a certificate of title. But even supposing the road is included in the Crown grants, the Crown can still give an effectual lease of the mines : Bainbridge on Mines (2nd Ed.), p. 47 ; Millar v. Wildish ; ^ Alma Consols Company v. Alma Extended Company.^ Mr. a'Beckett for the defendant : — According to the decisicns, the defendant is the freeholder of half tbe street ; and the question now is between him, as Crown 1 2 W. & \V. Eq. 37. 2 4 A. .T. R. 144, 163. 190. H.TOR.CAa.— 12 178 Toi!i{i-:ys CASKS. AS I jjiaiitce, jMul llHM'cforc frccliolder, and the plaintift' tlaiiu- iiifj; under a mining lease. The freehold being the defen- dant's, the lease [*1(J7] wasin fact neve'r operative: it was statutory and referred only to Crown lands. In Alma Consols Company v. Alma Extended Company, the grant was subsequent to the lease. Further, the validity of the Crown lease may be considered : Aladdin (1. M. Co. V. Aladdin and Try- Again United G. M. Co.^ Now, under the "Mining Statute, 1805" (No. 201), 8ec. 24, a lease to be effectual, must be expressly contined to lands not alienated by the Crown. Again, this street was land dedicated to public use, and therefore would be ex- empted. Sec. 13. The plaintiff's title is put entirely on the lease ; the certificate of title is only mentioned incidentally ; but, in fact, the certificate is immaterial, for the company can have no rights apart from the lease. According to Munro v. Sutherland,* whatever may be the terms of the certificate, it is competent to examine the lease when the plaintiff makes it a part of his title. In fact, however, the certificate is not before the Court ; even if it were, it would give no right to the gold, the company would have to fall back on its lease, and that is void. Mr. Holroyd in reply : — The royal mines are sep- arated : tliere are in fact two estates ; and this being so, the Crown can lease the mines ; so far, the land remains Crown land. MR. JUSTICE MOLESWORTH :— According to the decisions of the Full Court, which I am bound to follow, a Crown grantee is entitled to half the road. That is the position of the defendant in this case. The land, immediately upon the issue of the Crown grants, ceased to be Crown land. I think that the license under which the plaintiff claims is confined to Crown lands, that is, to lands which are not private property, I do not think that, for the pre- •«0 W. W. ita'B E(i.2r.G. ♦ .'i A. .T. R ISO. ■*■"■;■ HHA MROCK )•. F \ fXS WOR Tff. 170 went purpose, the statute authorises the Crown to dis- pose of the mines under lands which have been alienated, and I tlierefore thinlc that the phiintitt's title, beinji; based on tlie oripnal licence, is bad. [I(i8*] It is said tluit the certiticate of title is conclusive : but it has not been produced ; and when it is said to he conclusiv<', it should be produced. I therefore think that, for the present, the motion should be refused ; costs to be costs in cause. Motion refused : costs to be costs in cause. Solicitor for the plaintiffn : — Mottornin. Solicitors for the dofpiuliint : — Bennett, Attcnborotigh & Wilks. Victoria, 1879.] [5 V. L. R. (E.) 2. THE MAYOR, Ptc, OF BRUNSWICK v. DAWSON ''Transfer of Land Statute'' (No. 301), s. 42 — "Local Govern- ment Act " (Xo. 506), ss. 165, 169 — Vemlor and jmrchaser — Specific performance — Aiireement for continuous use of land for particular purpose — I'ransfer — Incumbrance. The defendant, the owner of land under the " Transfer of Land Statute," by deed, agreed to sell to the plaintiffs a portion thereof, for the erection thereon of municipal buildini;s ; and tlie plaintiffs agreed that such laud should at all times thereafter be maintained and used as a site for municipal buildings ; and it was further agreed that upon payment of half the purchase money, Hnd the erection of the buildings, the defendant would transfer the land without payment of the balance. The plaintiffs erected the buildings and paid half the purchase •noney, but the defendant refused to execute an absohite irnnsfov under the statute, as she would thereby lose the benefit of the lilaintiff's agreement for continuous user. Semble, that the agreement of the plaintiffs for continuous user would bind their successors, and that such obligation might be mad<» an incumbrance upon the certificate of title. But, held, that at all events the defendant was bound to execute a transfer with such security as she could get. Demurrer. Bill by the mayor, councillors, and bnrgesses of the boroujrh of Brunswick, aj?ainst Emma Dawson, stating the followinj? case : -ffm 180 TORUENS CASES. In July, 1876, the council of the pUiintltr covponition passed ii resolution attirniin^ the necessity of buildin;; new council cluunberM, and the defendant, who was liic owner in fee, under the " Transfer of Land Statute," of a larf^e area of land within the borough, adjoining; the land the subject of this suit, knowing that the erection of the proposed buildings would add to the value of such adjoining land, on the 1st August, 1870, wrote to the plaintiff corporation, offering the piece of land in ques- tion, 100 feet frontage, at a price of £7 per foot, tith' under the [*3] " Transfer of Land Statute," and immedi- ate possession to be given ; and that if the site should be selected, she would give the sum of £350 as a dona- tion towards the building when finished ; and should au extension of frontage be necessary, that she would sub scribe in the same proportion ; as a proof of bona fides, one-half of the entire purchase money might remain in an acceptance say at twelve months (or as might be agreed upon), to be cancelled when the buildings were finished ; the offer being made on the understanding that suitable buildings should be erected. The defendant was proprietor of the land aa administratrix of her late husband who had died intestate, and she was beneficially entitled to one-third thereof, after payment of debts, funeral and administration expenses. The council of tlie plaintiff corporation by resolution accepted the defen- dant's offer, and an agreement for the purchase of tlie land, with the option of taking an additional 50 feet, was executed by the defendant and four of the council lors, but the seal of the corporation was not affixed thereto, as the plaintiff corporation desired to purchase at once the additional frontage. An agreement was subsequently executed by tli.' defendant, as administratrix, and sealed by the plaintitf corporation, on the 15th September, 1876, for the sale of 150 feet of the land for the suia of £1,050, £150 to be paid in cash on the 4th October, and £375, with interest. on the 15th August, 1878 ; and it was agreed that the land sold should at all times thereafter be maintained and used as a site for municipal chambers and offices, .VAYOR, ETC., OF BTtUNHWICK r. DAWSON. ISl to be built to tho Hjitisfaction of tlu« (lof<'ndjint, or hor surveyor or architt'rt. And the plaintiff corixjratioii a>;re(>d with the defejuhmt to erect within two years the buildin)<;s to be used as municipal chambers. And it was further a{,'reed that upon payment of the £150 and £;i75 as men ti(med, and the erection of the buildings, the defendant would transfer the land without payment to her of tho balance? of the purchase money. The bill alleged the observance and performance by the plaintiff corporation of the stipulations, and that the buildings were completed on the 30th September, 1877, and since then had been used as municipal chsinibers ; and also that the defendant had enjoyed the advantages she expected to reap by her offer, [*4] having sold por tions of the adjoining land at enhanced prices and other- wise. The plaintiff corporation having performed all its obligations under the agreement, tendered to the defen- dant the ordinary Torm of transfer under the statute for execution, in which the consideration was stated at £1,050. On the 17th August, 1878, the defendant's soli- citor returned it altered by substituting the words, " agreed to be paid, but whereof the sum of £525 only has as yet been paid to me," for the words " paid to me " ; and offered to execute a transfer in that altered form. The bill alleged that such alteration made the transfer informal, and incapable of registration. The plain- tiffs' solicitor then tendered another transfer statiufr the consideration to be only that actually paid in cash, £525, which, however, the defendant refused to execute. Inter- vieAvs took place between the respective solicitors, in which the deft^ndant's solicitoi* denied the plaintiffs' right to any transfer by which they would become registered proprietors. On the 19th October, 1878, the plaintiffs' solicitors wrote to the defendant's solicitors, forwarding a transfer in the form last sent, not insisting ui>on any particular form of expressing the consideration, but re- questing a transfer undet* which the plaintiffs could become registered pi-oprietoi's. On the 22nd October, the defendant's solicitors replied that they had approved of the former transfer expressing the consideration as £1,050, assuming that the plaintiffs intended paying that ^mm 182 TOiiREA'S CASES. sum at oiico, and offered t(> cxccuto a trarisfiM' for t!>al «iim, jfivinj; a niort^'a^'e to tlio dclrudant for the iin|Mid half of tilt* purcluiHt' inoiu'V, which proposal was not, however, ac('epteG. \- Sni TO!s 2 1 .Tur. (N. S.) 200. wm 184 TORREXS CASES. A ti'iiiiHfn' \H iiKTcly tli<* iiU'unH afTordcd of obtaining; rejfistration, and would not of itHolf nuM^ro tlu* proviouw ajLfn't'inent. However, there is no objection to referring to tlmt agreement as an eucunibrnnce. Il,v tlu* "Local (Jovernnient Act, 1JS74 " (No. 500), Sec. 1(55, tlie municipal council may pr >vide offices, and bv Sec. 1(11) may enter into contracts binding upon its successors. Mr. McFarland in reply : — The defendant is entitl«Hl to have this matter settled now, and not to be left to possible future litif;ation with the plaintiffs' successors : Attorney-General v. Shire of Echuca.*'' Se«r. 1(>r> of the " Local Ciovernnu'nt Act, 1874,'' says that the council may provide ottices " from time to time " only, and under Sec. 1<5{) any c(mtnict (Ui this subject must be such as may be within Sec. 1(15. If the plaintiflf cannot perform the whole of its contract, the Tourt [*7] will not grant speci- fic peri'onnance. The ie<;i.stnir would not enter the ajTreentt'iit as an cncninbi-iviice. Cur. adv. vult. MR. JUSTICE MOLESWORTH :— Tliis case comes before me on a demurrer to a bill by the municipality of Brunswick against Mrs. Dawson, to compel performance of a distinct contract between them for sale, by the defendant to the plaintiflfs, of a piece of land, to be used constantly for municipal cham- bers and offices. There is an agreement under seal hy w'hich the plaintiffs have covenanted accordingly, the money has been paid, the buildings erected. The defendant's title was and is under the Act No. 301, and the plaintiffs insist that they are entitled to a legal transfer under it. Some difficulties have occurred between the solicitors as to the manner of effectuating this bargain. One diflBculty has been as to the capacity of the plaintiffs to bind their successors by a covenant as to constant em- ployment of the land under the Act No. 506. I ratlier think the covenant effectual. Another difficulty is as to the ])racticability under the Act No. 301 of conveying 3 4 V. I.. K. Eq. 4. MAYOR, ETC., OF niiUysWIi'K v. DAWSoy. 1S5 a Icpal title to the plnintitTs, witli tlu' obli^iitioii for r«»n- Htiitit iiHc of tlu> land in u pai'ticiilar inaiiiu'r as an en- < iimbraine. I rather think it ciiu hi done. At all evoiitn fhf defendant, having' land under the Act No. 'M)l, eon- hJU'ted with a corporation under the Act No. 50G, raid is, T think, bound to execute conveyance with sucli Hecurity as she can legally get. Tliere has been a con- test in correspondence between Ihe solicitors, 8t?t ou^ in tlie bill, as to the manner of conveyance, which may prove nuiterial as to costs, not, I think, as to the d«'- inurrer, wliicli I overrule with costs. Answer within a month. Solicitors for tlio plaintiff corporation :— Cleverdon & Eggleston. SolicitorH for tiio tlofcndnn* :— Oillott & SnowJen. Victoria, 1888.] [14 V. L. R. 283. WATSON V. THE ROYAL P?:RMANENT BUILDING SOCIETY. " Tmnxfn- of Lund Statntf " (Xo. 301), h. 100—'' The Imlrn- mi-nU and Siruritii's StutiiU; ISOl" (Xo. 201), s. 107— Wdiditij of' pitnd routruct for sale of' land — Ahsulute transfer of land — lievd of dej'i-a.sanre — Fi. fa. — Kntr>i >'f fi. fa, on rt'ffistcr — Sale by sherijf — Ami/nnient by execution debtor — Priority. A parol oontrnot for tlje sale of land may be valid, hltbough. by roason of its not licing in writing, no action can bo brought huou it, nor probably any action brought in which the establirltnicnt of the contract would be necessary to the plaintiff's case. The cr^Mitiou of a quasi equity .>f redemption in land under th" " Transfer of Land Statute " mortgaged to a building 80ci«>ty by iiicans of tlio execution by the mortgagor of a transfer absolute \.\ form and a deed of defeasance by the society, though opposed to the policy and intention of the Legislature, is not illegal, and the mnrfc- Ufigor's interest cannot be aflfected by any proceeding jnder Sec 106 by a creditor having an execution against him. Quaere, whether the Registrar of Titles can enter in the register book a copy fi. fa. lodged under Sec. 106 of the " Transfer of Land Statute '' when the estate or inn-rest of the execution debtor nowhere appenrs in thar book, as where it is merely nn equity of redemption uuder a decl of defensauce executed by a mortgagee who has taken .in absolute transfer of land under the statute ns a st'curity. A( tioii by Jane Elizabeth Watson atjainst the lloyal IVinianent Huildinj; Society and Margaret Serj>ine ip m 1^ 1 1M({ ruiiithw.s VAsti.s. Siiiilli. niMl (Im' IIc^jIhIi'iii' of Titles. («> ciifoir" a liniiHf«'r of IhimI ill (*iiiiilM'i-\v('ll iiiKh'i- (Im> " rrnnstVf of liiiinl Sta tiiK'" No. .*101, Hold to Im'I* b.v tlif Hlwiiir ninl.-r a writ of th>ii facias iHHiu'd upon a judKiiifnt rccovcird bv <»ii«> •loliii Watson a;^'aiiist Sai'ali KlixalM'lli Siiiith, who iiad pn'vioiisl.v tiHH'tpi^jt'd lla* land to tin* KOi'lcty by rxcrnl iuK ii transfer, abs in foini, lliou^lt snbjt'ct to a deiMJ of dofoasance exocutiid by tbi- Moi'icty. Sanili Kii/Hlietli Sinitli, b«Mnjr the propi'it'tor nnder th<' "Tiansfei' of Land Statnte " of tlic land tin' sabjcct matter of tlu' a<'tion, transfiM'red it to the defendant, the Hoyal IN'rnianent Ilnildinp; Society, by a transfer, absolnte in form, thon^li intended merely as a se«Mjrity for an advance by tlie Hociety to her. The society executed a deed <»f defeas ance vvldch stated that the transfer was ^iven by way of mort^ap' oidy, and that when the principal advanced and interest had been paid otf the society would re-trans fer the land to the borrower, or as she should direit. Tlie society thereujjon prociired itself to be rejjistered as pro- prietor of the land, and on the lOth Sept«Mnber, 1SM.'», a certitlcate of title was issued to it, but tlu' dn'd of de- feasance was not re^istei-ed. One John Watson on the lath July, 18H7, recovered jud^Muent in the [•L'H4l Hu- prenie <^'ourt ajjainst S. K. Wniitli for BiH and costs, and on the 2L'nd July, 1SS7, a writ of li. fa. was issued thereon addi-essed to the siK*rilt' of the ('(^ntral llailiwick, and endorsed to levy £i:{ 7s. (Jd., with costs, interest and sheriff's fees, and was delivered to the sheriff for execu- tion. On the same day a copy of the writ accompanied by a statement spe<'ifyinf; the land as required by Sec. ](U; of the "Transfer of Land Statute" No. ?.01, was served upon the Kejjistrar of Titb'S. The land was described in the statement as the equity of redemption of the land standin;; in the registry book in the nanu' of the society, and it was also stated that the society was merely mortgagee, and that S. E. Smith was entitled to the equity of redemption. The registrar refused to enter the copy writ and statement in the register book. On the 31st Auofust the slieriff', liavino; duly advertised the sale, sold by auction all the right, title and interest $JH WATSny V. ROYAL l't:ii\fANKST DUILDISU SOCtKTY. 1^7 (If liny) of K. E. Kmltli !n llu* Inin! of ilic pljiliitltT for i'Z{), hihI on tlir MiiMM' (lay cxiMMittd n iiiinHfi'i* to the |il:iiiilitr of nil Ik'I' i-iKlit, title iuul iiilrrrst lif niiyi in l)i<> lantl. Tilt' phihititT on tin* Hunio \\\\\ ^avo notice to tiio Morli'ty of ln'i' pnrrhasc, and on that and the foll()Nvin^ (lay paid lo lh«> Mcrn'tary of tlic I'mlwan ln'an<'li of tlu' society the anionnt due on tlie nioi'tj;a^ce. vi/,.. illU ITis. Sd. On the '.\\h\ Anifiist nhe also lodf^ed a caveat elainiinu an estate in fee simple in tlu- land, and forbiddiiiK tiie re;;;istration of any oilier pet-son as propiiotor. On the ;!i*d Septeinl»er the Hecietary of the Pfahran branch wrote lo the plaintitT stating that thece had been a inistaive in connection with the sale nnuh*, and otVeiin^ to return ihe plaintitf tli(> amount paid by her to the society. Sub- secjuenlly the anionnt, iW) ITis. h society iind S. K. Smith, and Iod«;ed at the OtH<'e of Titles for i-e;;istration. Notice thereof was j^iven to the phiintitT, -vlio at onc«* co\nmeiM'ed this acti«)n to n'deeni the land ajjainst the society and Mar;;:ar«*t Serpine Smith, who claimed to have purchased the land from Mrs. S. K. Smith before the plaintifT's purcliase at the MherilT's sale. The defendants joined in their defence, and allejfi'd that on or about the 20th Aujj;nst, 1SS7, the defendant, Mar- j^aret Serpine Smith, purchased from S. E. 1*2H.5] Smith lier int<'rest in the land for £1M;. The plaintitf, by her reply, denied the allej^ed sale, and alleged that even if there were a sale, it was not made bona fide, but with the intention on the part of both vendor and jmrchaser to defeat the judjj:ment and execution ; and by amend- !aent allowed at the trial raised the question thaf the sale was void under Sec. 107 of *'The Instrumeiil ;uid Securities Statute, 18(J4," N(x 201, as there was no written aj^reement made for the purchase. ni^j?ins and Weijjall for the plaintiff. Hodges and Mitcliell for the defendant ; — before the sale to the plaintiff by the sheriff there was a i)arol af?ree- ment for the sale to the defendant M. S. Smith of S. E. }ll Pfilip l,ss TOIiKKSS CASKS, Sliiitli'M illtfirHl ill ttip tiltld, IIH \vt,v'>4 liit«M«'Kt. Thai a^fi'i'Miii'iM wan |nifr(il_v v.ilUI, i1hmi,v'1i iiim1«'I- Hvv. l'(>7 of "The liiHtniiiit'iit aiwlSiTiirltlt'HHiaiiitc. r^Cit," No. 'JIM, MO ai lion i- had, but iitcrcl.v tliat no action h' '> lii' bt'ou^:lit upon it. Nop lias flu* Hcctlon anv foro between one of the partieH t<» llie rontraet and a Htranuer: a HtianpM' is not entitled to ralHc the Hfatute of FiaudH. The evidiMice mIiowh that the Male wan a perfertl.v bona tide one, and that t!iere wiih no intent, ciltier (ui the part of the piinhaHei* or of the vendor, to defeat the execution ; on tli<' coiitrarv. it wan hIiowii that llie of the "Trannfer of I^and Sta tut«'" No. :MM, whereas the plaintifT, wlien Hhe purchiiKed at tlie HherilT'H sale, had notice of the i»revioUM purchasi liy the defendant M. H. Kniilili. Tiie plaintitl" could not re tiM'ri'fon' II tnuiMftT by tin* cxmittoii i-f(l |iropi'i«'tnr roiiM have no ••tTrciitioii (b'btor. KiiXKiiiM in rojily : — riiib'r llio Hht'iliT'n hiiIc th I'llty of rciioiiipfinii III t|i(> inloiTsi In this land |t)iMMi'al I'ro pi'it.v Hialiilf. ls»i4," nor ilio'TniiiMfoi' of l.and Statiito," alToctM hiH ri^lilM. So*-. IHU of tl Itoal I'l (»|M'rty Statute. IHii, " Xo. LM:S, only HtalcH that no jiiduoiont mIuiM bind Of atfoct land until and iiiiIosm a writ of > xociition sliall he iNNUiMl, and no writ of rxorution sliall ailVci land "as ro piircliaHi'rH, niorty;am'»'M or oxomlion «ioditoiH" »any notice notwithstandin;;!, iiiiIchs and until dclivorcil to tho Hhoritf for oxoc ntion, and a nioniuriindiini innta!nin>; I'crtain partb-uhirs loft with tlio Uoj^iHtrar-tSonoral : and Sot'. 185 HayH that that Hhail not atToct any ox(>(-ution an hotwoen tho paitloH thoroto or thoir ri*prosontativow or thoHo doriviiiK as v, Sor. 17t», the Hheriff is ^ivon diHtiiici powor to hoU lands. Mo soIIh tho intorost, if any, of Sarah Kli/.aboth Smith, and by that Halo putH tho puroluiHor in hor Hho<*H, ho that If who eoiild bo coinpollod to niako an assl*;ninont, ho could tho pur(;lia8oi', and if nho could ral.so tho Statnto of Frauds tho purchasor could alno. Having roKanl to tho "luHtrument and SooiirltioH Statnto, 1S(;4, No. l.M>4, Soo. 107, there was at tho time of tho sale by tho shoritT no contract which the defendant M. 8. Smith could have enforced for the allo^jed purchase of the [•2S7] land, because the contract relied on was only a parol one, and not being in writing, although not void it was not onfcM-co- able : Notes to Birkmyr v. Darnell ;2 Carrinuton v. Roots ;3 Scorell v. Boxall.* Notice only binds tlie per son getting it to the same extent as the person •i 1 8m. L. C. (9th Bd.) p. 340. 3 2 M. & W. 248. * 1 Young & Jervis, 396. 190 TORRENH CASES origiiuilly ImhiikI : 2 Dart. V. & 1». (nth Ed.), .s.S4, citing Taylor v. Stil>bei't.'' JtcMidt-H, apai-t from the Htatute of FraudH, it iH Hubiiiittt'd that there was no definitive bind- ing contract ut all. Tiie evidence hIiowh that the pur- cluiHer from S. E. Smitli only intended to take the land if HJie ct)nld llnd a purchaser at a profit to herself. The sale alleg<'d depends on the evidence only of W. L. Smith and M. S. Smith, and flark, who arranged for it, went to the Hheriff'H Hale and bid against the jilaintiff. In any ease it is submitted that the plaintiff has pri- ority l)ecause she lodged the (•(►py writ and statement in accordan<'e with Sec. l()(i of the " Transfer of L1 land. That 8o«*unly was cttVcted by an abHoluto trannfer by her to th«' society a<'(oin]mnb*d by a deed of d«'fi'as- ance executed by her and the society, statin;; tliait the transfer Iiad been jfiven by wjiy of inorlpi^e only, and that upon payment of principal and interest the society would re-tranHf«'r to her or as she slwuild direct. In i)ur- Hiiant«* of this transfer, the defendant 8«)ciety was re^is- lered as proprietor of such land, and a certiti«*ate of title, daJed lOth Sei)teinber, IXHi't, was issued to it. The defeas- ance' was nol repstered. On the I'Mh July, 1SS7, one .lolin Watscm recovered judgment in tliis Court iipiinst Sarah Elizabeth Smith for £:{S. On th^ 22nd •Inly, II writ of ti. fa. was issued on this judpnent. On the same day a copy of this writ, acconii)anied by a state- ment of the land sought to be affected was served upon the Registrar of Titles. In that statement the ecjuity of redemption of the then defendant in two parcels of land is mentioned, the description of the land now in question being : — " The equity of i-edemption in all that pie<*e of land containing, etc., now standing in the register book vol. I., 777, fol. 855,310, in the name of the Royal Per- manent Building Society, which society is a mortgagee only of the said land, tbe said defendant being t*ntitled to the equity of redemption therein." On the JUst A\igust the sheriff put up for sale by auction all the right, title and interest (if any) of Sarah Elizabeth Smith in both par- cels of land, and the plaintiff became the purchaser for the sum of £20. On the same day the sheriif executed a transfer to the plaintiff of all the right, title and interest (if any) of Sarah Elizabeth Smith in (inter alia) the land now in question. On the same day the plaintiff gave notice to the defendant society of her having purchased at the sherift"s sale and paid to the defendant society's secretary, at the Prahran branch, £18 lOs. Od., the amount then claimed to be due on the moutgage. On the 1st Sep- tember the same secretary wrote to the plaintiff stating that an error had been made in the amount mentioned A. .V E. 093. " L. R. 10 Q. B. 97. t4 M. & W. 224. «3 Q. B. 483. i« 3 H. & N. 510. " 31 L. J. C. P. 204. WAT&ON V. ROYAL PERMANENT BUILDING SOCIETY. 195 tween theniHflves they may not b<' Icgnlly oompellable to perform it, it is not competent to a tliird party to Bay that becuuHe one of the parties to tlie contract cannot maintain an action upon it a^ninHt tlie otlier, tlierefore it shall be held void for his benefit. A similar principle has been applied in the case of tlie Htatute of Limita- tions, it havini; been frequently held that the debt barred l»y the statute is still a subsistinK debt, and that an executor commits no devastavit in paying it. Tlie question, therefore, remains wliether the plaintiff or the defendant Smith is entitled to priority. The se- quence of events is as follows : — On 22nd July, when the writ of fl. fa. was issued, the defendant society was the registered proprietor of the land in question, the execu- tion debtor being entitled. to an equity of [*202] redemp- tion under the defeasance. On the same day a copy of the fi. fa. was served on the Registrar of Titles, accompanied by a statement that the land sought to be affected was the equity of redemption of tlie execution debtor in the land. On 22nd August the defendant Smitli, without notice of tlie fi. fa. or its service on tlie registrar, pur- cliased from th'* execution debtor lier interest in the land. On 31st August the sheriff sold to the plaintiff (who then had notice that tie execution debtor had already sold her interest) all the right, title and interest of the execu- tion debtor in the land, and on the same day executed a transfer to her of sucli right, title and interest. On the Ist September the plaintiff lodged a caveat claiming an estate in fee simple in the land, and forbidding the regis- tration of any other person as proprietor. On 3rd Hep- teraber a transfer of the land to the defendant Smith was executed by the defendant society and the execution debtor, and lodged at the Office of Titles for registration. Notice of this was given by tlie registrar to the plain- tiff in pursuance of lier caveat, and this action was com- menced. The whole question, therefore, is whether the service on the registrar on the 22nd July of the fl. fa. and accompanying memoranda bound, charged, or affected the execution debtor's interest in the land by virtue of Sec. IOC of the " Transfer of Land Statute." If so, the defendant Smith could, by her purchase of 22nd August, 196 TORRENS CASES. acquire no right against the pui'chaMet* from the sheriff. Jf not, then the defendant iSniith, by her pureliaue of *22nd August, acquired priority over the plaintiff as purchaser from tlie slieriff on 3l8t August. In Sunder v. Twigg " tlie fl. fa. liad not been registered, either under tlie " Transfer of Land Statute," See. 100, or the " Ileal Pro perty Statute," Sec. 182, and it was there held by me, and aillrmed by the Pull Court, that a transfer by the sheriff to a purchaser at the sheriff's sale was inopera- tive as against a prior purchaser for value from the execu- tion debtor. In delivering judgment, I expressed an opinion that the fi. fa. might have been registered under Sec. 100, but that was merely obiter, and an opinion to the contrary effect was expressed by the learned Chief Justice and my brother Holroyd on the hearing of the appeal. I have in this case more fully considered the point which now, for the first time, arises for judicial determination, and I feel vei-y [•L'OS] much pressed with the difficulty suggested by my brother Holroyd as to how and when the registrar is to enter the copy fl. fa. in the register book, as required by Sec. 100, when the estate or interest of the execution debtor nowhere appears in that book. I may remark in passing, that the whole difficulty in this case, as in Sander v. Twigg, arises from the mort- gagor and mortgagee agreeing together to adopt a form of security not contemplated in the " Transfer of Land Statute." If a mortgage as provided for in Sec. 83 had been given, the execution debtor could have continued the registered proprietor, and a copy fl. fa. could clearly have been registered under Sec. 100. Here a quasi equity of redemption not under the "Transfer of Land Statute " has been created in land under the statute, and however that may be opposed, as I think it is, to the policy and intention of the Legislature, there is nothing which renders it illegal, and the mortgagor's interest cannot, as I now think, be affected by any proceeding by the execution creditor under Sec. 100. That being so, the purchase by the defendant Smith from the execution debtor is valid, and has priority over the transfer by the sheriff to the plaintiff. « 18 V. L. K. 765 No. WATSON V. ROYAL PERMANENT BUILDINU SOCIETY. 197 Upon tlic qtioHtion of coHtH the right of tlie plaintiff to redeem wuh, in the flrHt inHtunce, recognized more than (»nee b,v tlie defendant society. Subsequently the society disputed her right, and tendered her back tl»e money paid by her, accompanied by a letter alleging mis- representation on her part, which has not been attempted to be proved. Moreover, the plaintiff may have been mis- led by observations which fell fi"om me in Sander v. Twigg, which was, at the time of the transactions in ques- tion, under appeal. The two defendants have joined in their defence and must stand or fall together upon the question of costs. Tnder the circumstances, I give judg- ment for the defendants, without costs. Judgment for defendants without costs. SoUoitor for plaintiff :— R. H. Smith. Solicitors for defendants :— Duvios, Price & Wighton. ViCTOKiA, 1X71.] [2 V. R. (M.) 27. MATT V. PEEL. No. 291, s. 'M — Lease — Proviso for for/eiture — Estoppel — Certi- ficate of title — So. 301, s. 49. A le.iso issued under Sec. 24 of the "Mining Statute, ISC') " (No. 201), in the form prescribed by regulations of 2nd March, ISUO, (on the part of the lessee) these presents shall be voidable at the provided as follows : — "If there bIihU he a breach of covenRut will of the Governor in Council ; and in case the Governor in Coun- cil shall declare these presents void, the term Hhali cease and the declaration be conclusive evidence of breach in all Courts. Sembl<>, The introduction of such a proviso is opposed to the policy of the Act and ultra vires. Hut, held, tliai llie lessee exnciitin;; kucIi a )ent-e w»b bound by the proviso and estopped from objecting to it, and that bis term waa effectually determined by such declaration without notice to him or evidence of any breach of covenant. A certificate of title under " The Transfer of Land Sta- tute " (No. 301), that the holder is the proprietor of a leasehold estate, etc., although made paramount by Sec. 49, cannot defeat the right of the Crown to determine the lessee's estate. Appeal from an order of the Judge of the Court of Mines for the Castlemaine District. The case stated was as follows : — The plaintiff sought a declaration of his 198 TOHRKNH CASKH. t ■nin I'iKht to poHHeHHioii of land wliicli had Ix'cii deiiiiHi'd to Alfred Meyer by iiiiuiiiK leane under the proviMionH of the '•Mining Statute IHU.V on the J»th of Hepleniber, IHtJll, in th<' form pr(>m*i'ibed by the ref^ulatiouH (containing; u HiMM'ial proviso Met out at len){tli in tlie judgment). In Dei-einbei', IHJJU, Meyer, by conHcnt, assigned liin leaw to the piaintitf, and in Mareli tlie plaintitl' procured a certi flcate of title to the leMne under the "Transfer of Lund Statute." The i)laintitT entered into posHesHion and paid rent until September, 1870, avIumi rent was refused. On the ir»th of October a declaration of forfeiture was made by the tiovernor, and notice thereof was published in the "Government (Jazette " on the 21st day of October, 1.S70. us for "breach of the labour covenant." The plaint itT had received no notice of any breach of covenant haviu); been committed. On the 23rd of October in the plain tiff's ab8ence,*the Government mining surveyor entered on the land and removed the boundary posts. On the 24th the defendant nuirked out the jjround and applied for a mining lease. The plaintiff also applied for a new lease of the same land. The plaintiff and defendant after- wards agreed to take a. joint lease which the warden reeommended, but the [*28] defendant obfeiined a h'asi' in his own name on the lUst August, 1871. The d(>fen dant who had remained in possession, excluded the plain- tiff, who thereupon instituted a suit to establish his title under the old lease. JudgTuent was given in his favour, with damages for encroachment. This was tlie order appealed from. Mr. J. W. Stephen and Mr. Mcl'arland for the api)el- hint : — The plaintiff's only title was under a lease whicli had been determined by declaration of forfeiture. The lessee expressly coveiiants to accept the lessor's declara- tion as sufficient evidence of forfeiture, and it is there- fore unnecessary to prove any breach of covenant for which the lease might be determined. The Crown had lawfully resumed possession when Peel put in his pegs, which is the trespass complained of. Matt's possession had then been lawfull.y determined. The certificate of title in no way improves the plaintiff's position. The certificate is subiect to the conditions of the lease ; it MAIT V. PKHL. 199 dcK'H not «'ontr()I or viir.v uiiy I'iKhtM under the lease op impoHe un.v additional fornialit.v bv putting an end to the IcaHe. Tlie (erni is K(»ne, and tlie (;ertifl«iit(> of title Ih onl.v to tlie lease, not to any estate in the land indepen- dently of the lease : McDowall v. Myles,' Kavauagh v. Oudge,2 Turner v. Meymott." Mr. Ilolroyd and Mr. Casey for the respondent : — The lease was (granted under a statutory power and must conform to it. It eontains a provision that it shall be voidable at the will of the (Jovernor in Council, which is ultra vires, and under this provision a declaration of forfeiture has been made. The declaration is bad on this jjround, and is also bad because no breach of covenant lias been proved. Whatever may have been the inten- tion of the clau8<', the eifect of the in-eliminary words, " If there shall be a breach," is to govern all its provisions, and a breach of some sort must be proved before the declaration can b(» operative : Forster v. Haggart.^ Apart from the inoperative declaration the lease has been in no way determined. There has been no '* recov- ery " of the land within the meaning of Sec. 42 of the "Mining Statute, 18(15." The term has never been effectu- ally determined, and is still subsisting and entitled the plaintiff to succeed. The certificate of title showed the plaintiff to be proprietor of a leasehold estate and to def(.»at that title the lease must be shown to have been properly determined. No proof of determination lias Ik'cu given. The leasee is not bound by the substitute for pi'oof provided in the [*2J)1 lease as tlie clause was ultra vires ; he could take the benefit of the statute with- out subjecting himself to an illegal addition to the statu- tory requirements : Regina v. Hughes," Soward v. I,cg- gatt," Alladin v. Alladin and Try Again Company,^ Mul- cai'y v. Walhalla Company." '0 w. w. .VA'Ji, L. u;. '-•5Miv7i. A G. 72(;. 3 1 KiiiK. 158. * 1.". Q. a. 155. r- L. R. I. P. C. 81. « 7 C. & P. 6, 13. : ^«w. w. *a'15. e- jr.fi, «2 A. J. U. «3. .. ...1 •Ff^ 200 roRHKNS tASKtI. ♦,1 Mr. J. W. Hr«'|»lu'n In reply : — Tho plalntlfT Ih t'Htoppt'iI from oltJoctliiK to tli«> coiulltlonM of the leiiHo under wlileh he clalniH, he ciinnot take the benefit without the bunlen. If the form of lease waw objectionable he Hhtnild liave liad It reetlfled, but having exeeuted It he l« bound b.v It. Cur. adv. vult. MM. JISTK^E MOLKSWOUTH :— This case coiiie« before me an an apiN>al from the deelHlon of the learned Jud^e of the (\>urt of Minet), ('aHtlemalnc District, for the plalntifT, Mr. ivfatt, against the defendant, Mr. Peel, now appellant. The "Mining Htatute," No. 201, Sec. 24, authorised the Governor in the aame of llt«r Majesty to gi-ant leases of Crown lands for terms of years for mining i)urposes. The 42nd section authoris(>d the Governor In ('ouncll to make regulations not contrary to the provisions of the Act, prescribing among other things the form of leases, the covenants, conditions, reservations and exceptions to be inserted in such leases. The Governor in Council, as in pursu- ance of this authority, made regulations on the 2nd March, 1800, gazetted March 0, fixing amongst other things, forms of leases containing various covenants and provisions, amongst others: "If there shall be a breach of the covenants and provisions herein contained on the part of the lessee, his executors, administrators, or as- signs, then that these presents shall be voidable at th«* will of the (iovernor in Council, and in case the Governor in Council shall by writing under his hand declare these presents void, the said t(?rm shall cease and determine both at law and in equity ; and such declaration shall be conclusive evidence in all Courts of law and other jurisdictions in the colony of a breach of the covenants and c(mditions herein contained, sufficient to sustain such declaration having been committed ; and also therefrom it shall be lawful for Her Majesty, or her agents and officers, without any previous demand [*30] whatsoever, to enter forthwith into and upon the said land hereby granted, and the same to repossess and enjoy as fully and etrectually as if these presents had not been made. MATT V. PKKL. 201 juhI tlio Hald loHHoo, IiIh oxooutorH, ii^al pntcoKH, anil In of hucIi entry and any Icpil procci'dinKM tuk«'n in i'('»|M'('t th«»n'<)f tlio defendant In such pnnrcMd- ingB may ]iload loavo and license in Iwir flH-i-t'of ; and thetie prem'ntH hIuiII b(> conrluHive eviden<'e of hiicIi leave and llcenHe l>y the leHHOo, \\\% executorw, adniinlHtratorH, and aHHi^nH, oi* otliei* tiie plaintitT or plaintitTH in hucli proreedinf^H, ft»i' snrh entry <»r otlu'r niatterM ecunpliilned of in Huch ))roee-.>dinKft." A private leHHor mi^ht, I tliinic, introdnee Hueli provisionH for the termination of a leaHe upon a declaration by liiniHelf, with tlu' ad vie*' of otluM-H that a covenant had been broken. There would be noth- ing repugnant to the estate conveyed — no ilb'^al or im- ni(H*al object in such a provlHion. Hut the policy of the Act, was, I think, the encouragement of minin){ induH- try, and securinjf a public revenue, Kivin^ to mich perHonB as the Governor for the time beinj? might approve Hecure teuurcH of mincH for mich term short of the limit as he might think fit, subject to such payments and the per- formance of such cov(»nants as he with his council for the time being might think necessary for the purposes in question, liut it was not, I think, consistent with the policy of the Act to reduce such tenancies to tenancies at will, or to inv(«8t a body not possessed of powers for judicial investigation of facts with the conclusive deter- mination of facts which should constitute a forfeiture, and if any legal procet»dings could be taken before me to i)revent the imposition of such a form of lease as a condition of getting any, I should be inclined to say that the imposition was ultra vires ; but as the granting of any lease is perfectly discretionary it would not be easy to devise such legal proceedings. The plaintiff below, respondent, is assignee of Mr. Meyer, who accepted sucli a least*, 2nd Scpl ember, 18(10, for 15 years. In October. 1S7(), Flis Excellency was advised (o declare the lease forfeit;'d for breach of the labour coNcnant, and accordingly, by writing under his hand as (Jovernor in Council, so declared. The forfeiture was gazetted 21st October. On the 23rd of October the Government mining surveyor removed th«* plaintiff's ¥ T' 202 TOMHMIfH CAHKS. jMMlM. (Ml IIm' 1\\\\ OrtolHT the (icfciHliillI liiiilkcil oiil th«> liind, |M'(>lliiiiiiiir,v to applh'iilUtn for ti iiiiiiiiiy; |<'(|ni>, iitiil nili'iid into poMHi'HHiuii of It, and lie Iiiih h'wwk' ho r(>iiiiiliii' tliiH foifritiiit*. Iiud ii|i plit'd lor n iK'w U'iiH<> of an iiicrcaHiMl area, and laorrcd iii^s \vi-i<> iiad Ixforc a \vaiil«>ii, Im>Iw«'imi tlit> \'"M\ plain titY aiif«>ndant ronttMidint; for tlirir ri'Mpcrtivc appli caliDUH, and u conipnauiHi* waH nnidc hctWfcn llu>in, providing. anioii;;Ht otiirr tliin^fH, that a joint I Hlionid be ^'ranted t«> tlwni, wl'.icli tlic warden rcconinicndt'd that th«> OovcrnnitMit Hlionhl do ; Init for Hoinr n>aNon Ihr (lovcrnnuMil pid'crrcd tlic (h>f(>ndan(. Th<> plaintitT coinnicnccd tlic pn'Hrnt action h.v a plaint H(>cl l)aH(> of '.Mil S(>pt('inb«'r, \X\\\). IN'tidtn^ the Hiiit the d«'fcii learned Judge made an order ill favour of I lie plaintitT with tohIh. Although, aH I have Haid, I Hhoiild hold the tixin;; of the form of the lea«e aH ultra vireH, I eamiot Mee ni.v way fo deciding; that the plaintiff aHe is elTeetual mo aH to pasH an estate to the lenHee, and inetTectiial an ti> pi'ovi (iovernment iniKht ^'ive or withhold, whicrh he had no rijjht to iiiHint upon, ami then r<'jeet the terniH it impoHed. 1 have not Ix'cn r<'ferred to, »>r been able to tind, any authority for hikIi a elaini. I think the plaintiff in t'Htop]»ed from making it, that the declaration of the Ooveriuu* in Council <'oncluHively an apiinnt him deter- mined the h>aH(> an to entate and his ri^htH and liabilitioH. Ah I underntand the caHe, the (Jovornment to<»k pos- HCHHion without le^al proceHH, au by the provisions of tlif leane it oujjht, and the defendant enter* '1 u' .on ili< poHs<>HHion of the (Jovernment (I sliouhl .warrant ably), not on the jioK.seHsion of the jdaii The plain tiff alHo relied upon bin having; ol)taine(i rertiti' ate of title from the Oftlce of Titles. 'jr»th Man-h. ix7t) ihat he was "The proprietor of the leaHeludd estate foe fifteen years from the 0th day of September. ISO!)." etc., but such certificate I think cannot defeat th(» ritrht of the Crown to determine the estate. Tender No. 301, See. 49, MATT y. VUKL. 201 lowin;:. iilKl nee. MU iM lii>Ml«l«> I hi' (|ii«>Mtloii. No rar iim th«> (■;|H(> HCllI (O IIK' (||M(|oH«'H, IIiC IIK'lilH iil'<> wilti lh«' pltlill- tilT, H(» I hIuiII p;iv«> no cokIh iiKiiiiiHl liiiii. Hcm-i-hc tlti* (IcriHioii, dlHiiiiHH tli4' plaint witlioul roMlH, Id lli«> paiMi«>H ahUIc tlifir own cimtH of llii' appeal, rt'lurn flu* «l«'poHiiM. .SiillcUorH :— W.vltiini t'lfvcnlnii Vk'Touia, 1872.] [3 V. It. (H)«l.alMo:JA. J. U. \\V HODGSON V. HUNTER. ** Trnnn/ir nf I,nnd Statute" {Xo. HUl), x. '^l—jHrisdictiim t\f Su/ireiih' Court — Voluuti'er — Iinperfirt ijij't — I'lmiMitnnj title — Atlierne iioasvashm — Statute of Limitations — I'artiea — Mul- tifariounuesK. 'I'lu! uttilier |)art of Spc. 24 of th« " Trftiisfor of Lntnl Ktutiito ' (No. .'(01), cn^ati'H no iit>\v JiiriHtlirtiou in tM|tiit.v : Imt tin* latter itiirl of tiiat Hcctiuii crcatcH a ii<<\v JuriHilittiuii in tlio Sii|)rfiii«> Court or u JidIkc to Htay the hriiiKinir of liiiul iiiiilor tlit> .\<-t. Tlio priii<-i|>li> that tlu> Court will not aHHlHt a vol',iiitf4*r clntniliiK iiiidor (111 iin|>uit*>ct ^iti lippiieM only hh biatM<>r with no cunvi'yanco of tlic li-cal (•Htat(> <>nti'rin(r upon laii'l iintl*>r a Kift and rt'niainint; liftiM'u y«>arK in poHMCHHion, ncquin'N an arHi> title axainHt tin- donor, anr to a Hiiit liy a pernon who liaH lieen for more than liftteii yearx in poHHi'HHion of land, for a eonveyanee of tin* lft*n«lant. On bill alleffiuK au equitable title in the plaintiffs to certain lands, on un application by the defendant to brint; part thcriHtf under the " Transfer of Land Statute," and that the phiintifTs had lodi,'.-.! taveatH atrainHt the application, alleKiiiff nothing as to the defen- dant's title, but prayiiiK that he ntiRht set it out, and that he might be restrained from brinRiuK the land under th(> Act. Held, nn demurrer, that no equitable rights arose from the ap'.ili cation to brint; the land under the A<-t ; and that the persons in whom the legal estate a|)peared to be outstanding were necessary imrties. T-— ■i ' W 204 TOUHENS CASES. Thu bill wiiH tht'ii uiiiciidcd l>.v addiiiK the ikthoiih in whom tlit> ontHtaiitliiiR It'Kiil cHtiitc WIIH vchIciI, hh pnrti«'H, and pruyiuK ii loii- vuyanct* frutii tlitMii ; iilU'^iiiK tliat by roaMoii of the defenduiit'a appiicution to briii^r the land undor the Act they refused to ooiii'ey luiless under the dir(>etion of the Court. The IteKiutrar of Titles was also made a party, and dincovery of the applieant'ii title wm HouKht from him, and an injunction prayed attainat him aud the applicant. On iliMuurrcr by the applicant (the original defendant), Held, that the plaintilT'H ri»{lit to the conveyance Honght from the holders of tlie IckhI estate waH Hullicient to BUHtain the suit us aKuinnt them and the dcninrrin^r defendant, althouKh they might not be entitled to the relief soncht by injunction : and that the bill WU8 not multtfariouH as to the demurring defendant. [*(>2] DcnnirnM'. The bill jilI('j:;otl that in Deroniber, 1840, John Hodj,'- 8011 and Williain Mackt'iizio were seized in fee of landn at Jika-Jika ; that in the winie yeiii* they sold to J. W. Tlmrlow th(* whole of these lands, receiving the purchase money and ^iviny: a niemorandiim of the sale ; that the lands were subdivided into lots for sale, and many of them sold by auction ; that on the 5th July, 1842, Tlmr- low sold his ripfht, title and interest in the unsold lots to Joseph Hodj»son, and signed a luemoranduin of the sale acknowledjfiii}; receipt of the purchase money ; that on the 22nd July, 1)^43, Joseph Hodgson executed a declara- tion of trust as to these unsold lands in favour of his sister Frances Hodgson, one of the plaintiffs ; that on (he 24tli December, 1870, Thurlow executed a conveyance of all his estate and interest therein to Frances Hodg- son. The bill then set out certain mortgages to Young and Tr()lloi)e by Frances Hodgson, and a conveyance by her subject to such v: rtgages to herself and the «'<>- plaintiffs Rolls and liennet, and alleged that on the 23rd December, 1871, the assistant Registrar of Titles gave notice, by advertisement in the Argus newspaper, of an application by the defendant to bring laud (described) under the provisions of the ** Transfer of Land Statute;" that the lands comprised in the notice formed part oi tliL* unsold lands comprised in the declaration of trust and conveyance by Tlmrlow ; that the plaintiff, Frances Hodgson, lodged a caveat in the proper olflce against the application ; and that she and the other plaintiffs also lodged a joint caveat. The allegation as to posses- sion was as follows : — '* The plaintitT Frances Hodgson IIODOSOiV V. HUNTER. •205 entoi'od into nosaeHHlon of tlu» whole of the hmdw included in the Haid deeluration of truHt, and Iuih sold portions thereof and given poMHeBsion to the purchaserH, and since the 22nd day of July, 184o, the plaintitT has been in pos- session of the land comprised in the said application of lh«' defendant." The bill submitted that the plaintiff had a title to an estate in fee in the hind comprised in the application as against the defendant, and required the defendant to set forth the particulars of the title claimed by him, and prayed that it might bt' declared that the plaintiffs were entitled to such estate as against the defendant, and that he might Ix* restrained from further proceeding with his application. The def«»ndant .demurred on the following gi-ounds : — (I) Want of jurisdiction. (2) Want of equity. (3) Uncer- tainty. (4) That John Hodgson and William Mackenzie and Young and Trollope were necessary parties. ["031. Mr. J. W. Stephen and Mr. a'Heckett for the de- murrer: — The bill shows no equity against the defen- dants ; no priority of title is alleged as between him and any of the plaintiffs, and no trust appears except a trust in Hodgson and Mackenzie, holding the legal estate for the plaintiff Prances Hodgson. They are not made par- ties, and would be necessary parties if the bill is to be regarded as seeking to complete a title acquired through them : Talbot v. Hope Scott.^ Consistently with the bill, the defendant may be a purchaser from them for value without notice. There is no certain allegation as to possession of the land, and no equity can be raised which depends upon possession. The plaintiff can have no right to relief under the " Transfer of Land Statute." Sec's. 23 and 24 are the only sections bearing upon the point, and the order thereby contemplated is an order in a suit instituted in accordance with existing law, as by cestui qui trust to restrain the improper action of his trustee, or seeking relief against fraud ; no new ground for ecpiitable interference is introduced. The Court of competent jurisdiction mentioned in Sec. 24 is a Court already competent, not made competent by the section. » 4 K. & .T. nt p. 112. ir^ I.Vi ■J' 20G TORBENS CASES. I Tlic bill doos not allege that the caveats are entered in the form retiuired by the Aet, as they are not stated to pjirticnlarise the estate or interest claimed, as provided by Se«'. 22. All the mortgagees should be parties to the hill. Trollope and Young appear to have an interest as mortgagees, but are not before the Court. Mr. Holroyd and Mr. Lawes for the bill : — The bill shows a right to tlie land claimed, and irreparable injury will follow if it be brought under the Act, as the right will then be barred. The course jirescribed by Sec. 24 is intended to apply to every case in which the caveator contests the applicant's title, and is not confined to cases in which any fiduciary or oti er relation cognisable in equity exists between them : In re Power.* There is no remedy at law where, as in this case, the caveator is in possession. The defendant's claim to the land is sutfl- cient privity of estate between him and the plaintiff to sustain the suit. Hodgson and Mackenzie are not neces- sary parties. We want no relief from them. The plain- tiff's rights against the defendant do not depend upon acquiring the legal estate, and they are willing to leave it outstanding. The right to an injunction is sufficiently shown : Smith v. Scottish and Cornish Company.^ Cur. adv. vult. Mr. J. W. Stephen in reply. [•G4] MR. JUSTICE MOLESWORTH :— This case comes before me upon demurrer to the plaintifT's bill. The bill states that Messrs. John Hodg- son and Mackenzie were seized of the land in question in 1840, and sold to Mr. Thurlow by agreement in writing for a price paid. It then traces the equitable title from Thurlow to the plaintiff Miss Hodgson ; states mort- gages by her, one to Mr. Young, another to Mr. Trollope, then a conveyance by her, subject to those mortgages, to herself and the co-plaintiffs Messrs. Rolls and Bennett conjointly. The bill alleges as to the defendant Mr. Hun- 3 6W. W. Aa'B. L. 81. »2\V. W. &a'B. L. 121. HODt/SON V. HUNTER. 207 ter tliut the assistant Registrar of Titles gave a news- paper notice that finnter applied to bring tlie land in ipufstion under the provisions of the " Transfer of Land Statute ; " that the plaintiff Miss Hodgson lodged one caveat against that application, and all the plaintiiTs another. It insists that the defendant should set forth his title, and pra.vs for a declaration of plaiutilT's title against the defendant to an estate in fee simple, and that the defendant be restrained from his application to regis- ter. The bill states that the plaintiff Miss Hodgson, has been in possession since 1H4.*{ — not distinctly ever sinct» J 843. It does not negative the defendant being in pos- session now. It gives liim no colour of title, it does not in strictness show that he ever claimed any. It shows no relation or obligation whatsoever between him and the plaintiff. It is sought to sustain this bill upon an equity created by the "Transfer of Land Statute" (No. :U)1), Sec. 24, which says : — " That after the expiration of one month a caveat shall be deemed to have lapsed unless the i)erson by whom the same was lodged shall within that time have taken proceedings in a Court of competent juris- diction to establish his title to the estate specified in the caveat, and shall have given written notice thereof to the registrar, or shall have obtained and served on him an injunction or order of the Supreme Court or a Judge restraining him from bringing the land under the Act." I do not think that the part as to the proceeding in a <'ourt of competent jurisdiction could be taken to create a new jurisdiction of Courts of Equity, to protect persons having legal or equitable titles against the inconveni- ences resulting from an improper registration of title. It directs such proceeding as would be right before, according to the interest of the caveator being legal or equitable, and makes notice of that proceeding upon the registrar a stop to him. [•65] It is ai'gued for tlie plaintiff, that being in pos- session, and the defendant not being in possession, they could not proceed by ejectment. I do not think that distinctly appears. The plaintiff shows a legal WJ'^ 208 TORRENS CASES. I i (>8tatt> UH in trust fur them in Hud^son and Markenzio. Tliey say nothing; as to tlu'sc truntees bcin^ willing or unwilliuK to asHiHt them as to the legal estate. Assuming that phiintilTs were in possession, tlie defendant not, and there being no special equitable case against the defen- dant, thy dilllculty of there being no possible proceeding iiii"ht arise. I rather think that a special jurisdiction is created und(>r " shall have obtained and served," etc., which would embrace not only that difficulty, but cases in which the caveator could not with the necessary rapi- dity launch a well-arranged proceeding in a competent ('ourt. The provision is for a kind of injunction on the registrar himself, or something besides a i)roceeding mere notic(! of which on him would effect the object of stopping iiim. The Full Court in re Power ' decided that a Judge could not exercise such powei's by summons in Chaml)ers from the distinction sliown in the Act between a Judge so acting and otherwise; and apparently intimated an opinion leaving the latter part of the section as practically inoperative. I rather think otherwise. I think the Court or Judge might stay registration, bring- ing the parties before them, and, upon hearing them, put doubtful questions into a course of legal determina- tion within limited time, so as to uphold the policy of the Act, shown in its preamble, to bring all titles into a state of simplicity. It would be, I apprehend, com- petent for the Judges, under Sec. 152, to direct the details of sucli procedure. The present bill has no pretence of being under the latter part as it is not against the regis- trar at all. It dqes not state the estates claimed by the caveat. It is altogether defective, as under any old equity jurisdiction, in want of equity and distinctness of object; and would be objectionable, I think, for want of par- ties, as seeking to involve the defendant in a suit the determination of which in his favour, would leave him exposed to litigation with John Hodgson, Mack(mzie, Young and TroUope. Demurrei" allowed with costs ; liberty to amend within a month. «C W. W. & a'B. L. 81. HODa&ON V. HUNTER. 209 The bill was uiin'ndod by alU>i;ing that the logal estate In the land was outstanding in persons deriving title from Hodgson and Mackenzie who [•CO] were made defendants ; that the plaintiff Frances Hodgson had been in possession ever since the execution of the declara- tion of trust ; and that the defendant Hunter had never been in possession. Young and Trollope, mortgagees, were made defendants as such, and William Henry Archer, IJegistrar of Titles, was added as a defendant. The amended bill prayed that the defendants, having the legal estate might be directed to convey to the plaintiffs, that the Registrar of Titles might set out the title under which Hunter claimed, and tliat he and Hunter might be restrained from bringing the land under the Act. It •'ontained an allegation that Hunter falsely alleged that he had bought from Hodgson and Mackenzie, and that the defendants in whom the legal estate was outstand- ing, " have, in consequence of the said application, de- clined to convey the legal estate without the sanction of the Court." The defendant Hunter demurred to the amended bill on the following grounds : — (1) Want of equity. (2) No title to the land shown by the plaintilf. (3) That if the land were brought under the Act it would be still sub ject to any rights subsisting undei- adverse possession. (4) Want of jurisdiction to restrain tlie Registrar of Titles ; and (5) Multifariousness. The Attorney-General (Mr. J. W. Stephen) and Mr. a'Beckett for the demurrer : — No new equity is intro- duced against the defendant Hunter by the amendment. He is not a necessary party to the relief sought against the holders of the legal estate, as the plaintiff Miss Hodg- son is a volunteer under an imperfect gift whidi equity will not complete. Moreover the plaintiff's claim to the legal estate is barred by the Statute of Limitations. No jurisdiction is shown to restrain bringing this land under the Act, which is the real object of the suit. Mr. Holroyd and Mr. Lawes for the bill : — The gift by Joseph Hodgson was completed so far as he was con- H.TOR.0A8,— 14 i m^ 210 TORRENS CASKS. i'oriKid, and transft'rrwl the equitable fet» to FranceH Hod^Hon entitling her to the (umveyance KouKht by the bill. Her poHoeHHion would prevent the application of the Htatute of Limitations, and the statute ran in no way be taken advantage of by the defendant Hunter. The bill alleges that his claim prevents the jdaintiff from getting' a conveyance, and this gives an ecpity apart from the right to restrain the application to bri;«g the land under the Act. There [*(»7] is only a right to the discovery of the title claimed by Hunter independent of the right to relief. One defendant cannot object that the bill is multifarious as to another, and the bill is not multifari- ous as to Hunter. The Attorney-General in reply. MR. JUSTICE MOLE8\VORTH :— Cur. adv. vult. This case comes before me on demurrer of the defen- dant Mr. Hunter, to the bill of the plaintiffs, Miss Hodg- son and others. I already gave judgment on a demurrer of the same defendant to a bill of the plaintiff allowing it, with liberty to amend, and am now 'dealing with tlif amended bill. It states that Messrs. John Hodgson and Mackenzie in the year 1840, mortgaged sections 54, 55, 67, Jika-Jika ; afterwards sold to Mr. Thurlow by memorandum in writ- ing ; afterwards paid the mortgage and obtained a reconveyance of the legal estate as tenants in common in fee simple ; that Thurlow sold portions of the land in allotments, and procured conveyances from John Hodgson and Mackenzie to the respective purchasers ; tiiat Thurlow on 5th July, 1842, sold all his right, title and interest in all the land then remaining unsold to Mr. Joseph Hodgson, and executed a written memoran- dum in the words, " I have this day sold to Joseph Hodg- son all my right, title and interest in and to all the unsold portions of sections 54, 55, 57, etc., for the sum of £250, which I acknowledge to have received from the said Joseph Hodgson, and which I undertake to convey to him or whom he may appoint." That thereui>on Joseph HOIMSON V. HUNTER. 911 lIudKHun entered into poMMesHion. The bill further stutes that .luHepli Ilr.d^Hun, l!2nd July, 1K4.'{, executed a de- claration of trust in favour of hiH Bister, the plaintiff, Miss Hodgson, by an instrument written under the last- mentioned memorandum, in the words, *' in consideration of the love and aiTection which I bear my sister Prances Hodgson I do hereby give, assipi, transfer and set over all my riglit, title and interest in and to all the said portions of land referred to in the above memorandum siifued by J. W. Thurlow, and dated Tith July, 1842, and I direct hira to convey the same to my said sister." That Thurlow, 24tli December, 1870, exiKJuted a conveyance of all his estate [*08] and interest in the paid sections to Miss Hodgson. The bill then states several land ronipriHcd in tho application to the plaintiifM, and Htill decline to do so without tlie tianittion of tlilg Court. Tlie bill pmys ainouKHt odid to c(>r- lain defeudautM, the plaintiirt) are entitled to have tlie land conipriued in the application of defendant Hunter conveyed to them in fee Hiniple, and a decree that the defendants Uobert B. Uodgaon, DulTett and liucker, shall convey the same accordingly. The plaintilT's bill, I think, shows facts which, if true, entitle him to this relief against these four defendants, and is not multifarious as to them. It has been argued for the defendant ILunter that the plaintiff Miss Hodgson's title from her brother is as u volunteer and that the Court will not assist volunteers. That is, I apprt.hend, true only as to volunteers seeking to establish title against their donors or those claiming under them. Further, I think that the memorandum of 22nd July, [•69] 1843, operated as a direction to Thur low to convey to the plaintiff, which has been carried out, so that the gift is a matter executed. Further, that a donee entering under a gift, and remaining fifteen years in possession, would acquire an adverse title against the donor, and that no stranger could resist its assertion because originating in a gift. It has been argued also for the same defendant that the plaintiffs show a complete legal title by adverse possession, and therefore want no assistance ; but for many reasons it may be important for tliem to have a legal conveyance. It has been further argued that the plaintiff's right of suit against the defendants Robert B. Hodgson, Duffet and Ruckner, is barred by the Statute of Limitations. I think that these defendants allowing the plaintiff to remain in possession throughout would prevent them claiming anything adverse to her, or resist ing this suit, and that defendant Hunter would have nu right to such objection. The same defendant has insisted that the title to Duffett and Rucker is not suflSciently traced or described by mesne assignments. No author! :y has been referred 1o for thai objccticm ; if would apply HOlHiSON V. HUNTER. 218 only to part of (lu* relief, ami Iijim nol lieen preHented an a H|NM;ial ki'ouimI of (h'tniin-iT. The Mil uNo prays otlier relief, as reRtralnlii; th«» defendant lluut«'r and the dfiendant Mr. Archer, the ReglHtrar of Titles. Iroin la-in;;iiiu; Hw land under the "Transfer of Land Statut''." It h nor nereHSiiry for me now to fdve any opinion as to tlw right to the relief. Seek- ing it do(^ not, I think, nmke the bill multifarious any more than impropiM'ly prayin;; any other iDJun<'tion or :i receiver would. No objection for multifariousness is taken on this ground, or foi* making the registrar a defendant. The bill may be multifarious as to hitu objecting, but not as to the defendant Hunter : Attorney- (Jenernl v. Cradock." Demurrer overruled with costs ; defendant Hunter to answer within a month. SoHciturs :— KlingeiukT & Charnlcy— Windflor. Supreme Court, Victoria, 1875.] [1 V. L. R. (L.) 150. STAUNTON V. BROWN. No. 301, 8. 49 — I'jt'rtmntt hi/ rctjititfred proprietor — Atlrerge passes- sinn — (hutu of proof. Ill ejfftUH'iit by a rogiHU'roil projirii'tor, the dcfcnduiit set up a title by poHsession for tifteen yoiiTH. He proved uu incloHiire by hitu inure than tifteen yours bcforu iictiou linm^bt, of part of tlio land HouRht to be n'covered, and Hiibsequent uw of part of the land bo I'nc'loBed. The fence, however, was oidy of temporary nature, and wno removed or destroyed sliortly after itH ('reetloii. Held, per Fellows, J., that the words " adverse possession " in " The Transfer of Land Statute "' (No. ISOl), Sec. 49, mean poHH"8- HJon in fact as ostensible owikt (as distinguished from clandestine trespass), and have not the technical meaninK put upon them in the •lid cases ; tJiat a jierson who has so remained in possession for liftcvti years, not b'^int; t.he vimI (iwncr. M'(|iiircK iiti ii'i-iihite title, ipso facto ; that it is for a jury to determine whether the use lolied upon of the land was mere trespass, or was an assertion of a rif;ht ; that it lies upon the party who sets up a claim under the Statute of Limitations to prove it ; and that the defendant in eject- •nent by the r<'j?istered owner, having started the statute a;;ainst the plaintiff by showing that the plaintiff has been out of, and rhe •iofendant or others in, possession for fifteen .years, it then lies upon the plaintiff to show that his title accrued within fifteen years, either »8 Kim. 46(5. Si k i' ' H »< 814 TOHRK^S f'ASflS. to hliiiRflf or to ■omo ihthoh throuKli wlioin ho cIbIoii ; atao, thut lU'tM of ii\viiri'Nlii|) ii|Miii a part nf tli«> land iiiuy Ih> «>vI(I«>ii«'<- of {•dm- Ht'HNlon III' till' wliiilc l'i|)li<*ii, .1,, that iiitTc at'tH of |MiHiu>HHioii or (mmmiiiiiIIuii tlo hot coiiHtltiitc " iiilvt'rm' |iiiHMi>HHioii," MO UN to Invaliilutt' u <'«>rlili.-iii» of tilli> ; that ih*' ih'fciMhiiit iiiiiHt hIiow that Hiich ai-tH \vori< nil.i>rs«> an iiikIit (h<> old hiw ; and, that iionhohnIoii of part Im not |ionh.>m Hion of thi> I'l Mt of th*> |)rii|M>rty, unlfHH It fotniH ont> \viioli>, in fiii-t, or hy unity of title. I*i>r Itarry, .1., that thi' plaintiff 1m i>ntith>d to rcrover uny pi>ti>rnilni> thr fnct nnd « xtt'iit of tlif poHMCHHlon Hi-t lip by the dofiMidant. Ejcftnu'iil hy tin* I'(»h;IhUm'tor iiiidt'i' ** Tlu* Tnmsft'i- of Land Htaliitf" (No. 'M)h, 8or. 4!>. The plaintiff put in IiIm ceitiflcate of titit', dati'tl fJtii Octohci', 1874, nnd clowd liio caw*. Tlu» defendant wt up ti title by adverse poKscHHion foi* fifteen yeart*. The hind (in Ejist St. Kilda) wan deHcflhed in the rertiflcate of title UH containing]; one acre twenty-five peivhcw, or there- abouts, "part of portion 155A, parish of Prahnui. cnmnty of Bourlie, and coloured red on the map in the nmrjxin." II was tmunded on the north by Fulton street, on the ea.st and west by otlier liind belonjjin^ to third persons, and on the south partly by land bt'lon^in^ to the defendant, and partly by land IxOouKin^ to a third person. Tlie defeiidsmt proved that, in* :•• than fifteen years before the issue of the writ, he ercffed a tu-tmh fence, enclosing part of his land on the south tofj:<>ther with a part of the land in dispute, but stich fence tlid not api»roach within some disttmce of Fulton stre<»t ; I lull he had erected and kept a pifjsty upon part of the land near to his own boundjiry, and within the portion which htid been so enclosed ; also, that he liad removed a tree, and had claimed title to do so npiinst Hobinson, the owner of the ndjoininjj; land on the west. Robinson claimed title to the land in dispute, and in IS(»S erected a fence along Fulton street, forminjj;, with the enclosures of the adjoin- injjf allotments, a complete enclosure ; and in Buch fence placed a pate, with a lock, which the defendant broke open. But on cross-examination the defendant admitted that this breaking open was by drawing a hasp, and that he afterwards replaced it. In his rebutting case the sTAuyros V. hhows. t15 pInlntitT put In n onnvoynnco from UoltiiiMoii to hitniiolf, of NovoiiiIn^', lH7:t. ilo iiImo mldunMl (>vi(l<'nrf coiitru- (lU'lory to that of \\\v drfoiulant, iim to tlu* poHition of the iM-iiHh fence ;nn(l proved tliiit Hueh f«>ne(> liiul (liiv>pIH>ared rntlrely, within a few yearn from the time l( wiim ercctod. The learned JndKe (Htephen, A.) 4llrecli>d a verdict Tor the plalntitt', on tlii> ground that it wuh for tlie defen- dant to hIiow when the plaintitT'M title th'Ht accrued ; reH(>rvln(; leav<' to tihe def<>ndant to move to enter It for hiniHcIf, the defendant wuh not <»bllK('d to Hhow either when the plalntlfT'H title flrHt accru(>d, or that the defendant turned plalntUl' out of poHH(>HHlon. That It wuh Hufllclent for defendant to hIiow that he had be(>n tlfte(>n yearM In poHHCHHiou, and that plalntitT had been (lfte(>u years out." Webb and Hox nhowed cause : — No point of time np- pllcabh> to thlH <;aHe Iw tlxed by " The Ileal I'roperty Statute, 1S04,'" when the period of limitation (fifteen years In this colony) begins to run. The owner is not out of possession, nor Is h(> to be deenu'd to have dis- (onlinued poss(>sHion, within the meaning of the Btntute of [*152] Limitations, merely by the fact that he has not been in tangible occupation of the land; nor does a casual use of it from time to time, by a person who Is not (he owner, constitute "adverse possesshm " within "The Transfer of Land Statute" (No. :M)1), Sec. 4!). The defendant claims ])ossesslon of the whole allot- ment, by virtue uu»rely of his oci-upation of a part. But the possession of the defendant must here b(> limited to that part only which he actually occupied, or at most to the part originally Included within the brush fence erected by him. The defendant did not occupy according to any title or deed showing the boundaries ; and the land now sought to be recovered had acquired no name or designation, by reputation or otherwise, to war- rant the assimiption that possession of a part was » 27 Vic. No. 213, 8. 10. correHpondinij with 3 and 4 W. IV., cap XXVII., B. 3. Sec. 18 corrt'sponds with Sec. 2 of the English Act. ',? m u I 216 TOKH/iNS VAMIt:!, > • If pMMMHiMion of the whole. AtHi»rdliiK to ttu' delVii (liiiit'H own ('viih'iico, the plaintitT iiiiiMt be oiitllhfil In (hat part of the hind which wan not ocniph'd ; then hiw Ih (he Judgment (o he ap|N>i'th>ned ? The hiUHh fcnir diHappear(>d lonK a^o, an«l there Im a diHpiit(> au to \u poMition. [H(ephen, A. — Hup|N>He it were neeemMiry to ko hf'hiiid the rertith'ate of (i(h', and (o ^o iu(o (ht> plain tiff'H whoh> (itU% wlio would have to Mhow when (li<- defendout'M poHMeMHion b<>Kan ?J Tli<> defendant would within (lie principle of liolmeH v. KerrUon,''' un action upon a note pa.vahle no many dayH after Hl^^ht, in which the defendant waM not allowed the henellt of the Mtalnle, he not having proved any preMcntnient. It lieH upon the defendant to 8i^t the statute running. [FellowH, J. — In nil action of );oodH Mold and delivered, (he plaintifT w«>iil(I have to prove that it waM within the iM>rifMl.] It would he a part of hiH ciiHe to mIiow (lie time of the Hale ; but not HO in ejectment upon a certificate of title. It docH not lie u|»on the plaintitT to hIiow poHHCHHion within the time, WelKiiII v. BIyth." [Hteplien, J. — I do not see tliat " advei'He pohhchhIou " in couBtituted by mere occupation, which may b(> permiHMive ; it muHt In.' poMHeHHion whicli ouHtH tlu' owner, hoMtile to him. Fellowti, J. — Mere oc (Mipatiun would be Huftich'nt, Doe d. Will. IV. lloh ertH.* If I believed the evidence of the defendant, tiiai the northern f<'nce was near Fulton street, I should think it evidenced poHsession of the whole allotment, an being so intended.] But he did not put it up in the [•153J iiHsertion of a ri^ht, f<»r admittedly, he had no ri^ht or pretence of title at the time. [F'ellows, J. — In all the cases, it in a question of fact, and not of intention. Whvre a certain parcel of land is known by a name, i( ma.', 1m' held by possession of a part ; the number on the Government map is Its name. [Stephen, J. — In England, con/eyances go upon the notoriety of the designation, but here upon admeasureraentM.] The judgment cannot be apportioned. [Fellows, J. — If the fence has disappeared, a 2 Taunt. 32;{. a 5 A. J. R 100. « 13 M. & W. 620. HTAl'STttS .. HRttWN, •217 tho fMirty to louo, Ih tli»» one* npon whom tlio onim Hop. Ill VVillt.V V. Ilflllllllll/' till* OIIUM WliM niitt ll|H»|| tllC pliltll- lilT, iiH lo the Mtiitud'. That vav^v, iiihI lIohiirM v. K«>rrt- Hoii,* iu'«' rr(> the fiict M(>M more within th(> knouh'^i^r of on<' piirty than of the otht'r, th<' bnnhMi of priMif llrM npon \\\** former. In IIoinicM V, KerriMon, the niultci* lay ('<|nnlly within the knowledge of hotli. In Weigall v. Hlytli,' there wan notliinK to Hiai'l lli<> Mialnle, the ih>f(>n(lanl Hiinply iron- tended that ni<> plaintiff nniMt, In addithai to IiIh title, prove poHM4>HMion in liiinm^lf within fifteen ycarM. Her*' tlier(> Ih «>viden(-e of ptMMeMMion in the defendant, to raise the queHtion.J The poHMeHHion of the defendant Hhonid have been mIiowii to he adviM'tM*. "The TranMf«'r of Land Statutr." Hee. 4!), inakeH the certificate of title conchiHive, "Hnbj<-«t to any rlglitH HnhHlHtijiK nnder any adverne piiHKeHHion of Much land," and the defendant nnmt hrinfr hiinMcIf witliin that proviHo. The word "adverHe" nuiHt \h- tak«'n to have been adviH<>dly Introduced, and this revivcH the old doctrine of nonadverHe poHHeHMion. In the Htatute of LiinitationH, the (>xpr(>HHion " poHHeHHion " only Im UHed, and the caHcH decided on that Htatut(> do not apply to the prewent, where the exprcMHion Ih "adverne poHHCM »ion." WillianiH and IIcmI^'h in Mupporl of the rule : — The defendant Iuih <>HtabliHhed IiIh poHition. within Smith v. Lloyd." He Iuih proved that he has been in, and that the plaintiff Iuih Imm'u out of. poHHeHHion for fifteen years. [PellowH, J. — There Ih no proof lieiv <>f the fact» there Htutod, to start witli. Tlw! tiinc, iiuavly. is not sutHciont, as it tiii^ht be co-teniiinuH witli II tcnniicv for life. You 't.^i] aHHume that the plainiitV'H iijj:ht acninul at the H^nrtinj; of the fifteen yearn. Suppose a hui^ lease, and tli;;! the leHHce had allowed a Htriinjjev to hold ponsession f l«>aHi>. The proHiiiiiptioii \n that the phiintitt'H \'\^\\\ of action accruod b(>fore the beffiniiiii}; of the period. [Fell(>WM, J. — Ah in this action we Htai't with a certitlcale of title which, of course, does not disclone the hiHtorv of the title, the defendant must show tiiat the pei'i(Ml <»f liiH poHseHsion tits in with the nature of the plaintiff's title. The Htatu*^e ojienites sim- ilarly in cases of both real and personal property, as to which latter, Holmes v. KerriKs.] The owner Hiust exercise some rij^ht of ownershii)^ within the period. The only question is whether flflet'U years hav<» elapsed since the right of the plaintiff accnied. The statute has done awjiy with the doctrine of non-adver8ssion." The plaint ill' has himself gone behind his certillcate by putting in prior (onveyances. Hy proving that the plaintiff has been out of jmssession, the defen- dant has shown a discontinuance of his title, and also that he himself has been in. [Stephen, J. — Is not the Statute of Limitations intend«'d to protect persons hav- ing some colour of right ? The absence of the owner does not invalidate iiis possession in the eye of the law.] A plea of the statute throws the burden of proof upon the plaintiff, as alleging tlie aflirmative : Wilby v. Hen- man.'3 Sec. 4;j of "The Real Property Statute" abso- lutely extinguishes the title of the owner out of posses- sion during the statutory period : Jones v. Jones,'* per » 2 Taunt. 328. "2 M. c&W. 911. » II A. E. at . 1,015. '» 4 W. W. «t a'B. L. at pp. 17- IH. " 2 Cr. & M. 658. "16M. &W. at pp. 710-11. STAUNTON V PP.OWN. 21!) 1*155] Pollock. C.R In Dot' v. Kol.oitH'^ tho jury lm.l fmni.! that llu' iK'lH rt'lit'd upon wtTc iihtc actH of treHp.iHs. |Stepl>en, .J. — WIhm-o tlnj title is niutcrial. tin- onus li«'S upon tlu' plaintiff ; but wImto the entry l>y du' defendant watt, at llu> time, a trcspasH, the onus lies u))on tit;* (Ir'iuidant to hIiow poHsession for the period, lie should ■.how that he pul out the owjier, or that the latter had notice : iner<' possession by a tn'spasser is not snlllcii'nt. My view may be illustrated in this way. Stippose that Sir Edward »'. * 1 W. W. .VmIJ r, lit. ^TAU.viuty V. niiowx. 221 4ira\vn from the tiu-t. of occupalion of G40 acrcM of land — by one jierson v u> paHturcH on it iih many sheep, cattle, or horsen jih it will support, or merely a few of either ; by anotlier wlio cultivateH ten acres of it, making no use whatever of (lie remainder; by another who works a quar ry, or burns [*l."i7] brick or lime oil a snijill portion only; by anotlier who traverses a part to ^et access to a pond on the land, at which he habitually waters his stock ; or b.v iinother who, as here, builds a stye, to which pij;s are fontined, or a yard, in which fowls are kept — must be different in each case. It api»ears to me that, although (he defendant may be entitled to a portion, perhaps to all, of llie land enclosed with the brush fence made by him, the plaintiiT is en- titled to re«-over possessi(m of some of the land sought to be reeoverwl. lint the extent of each ar<'a is unde- fined, and (! -re is nothing by which the boundaries of either can be determined. While these points remain in dispute we are not, as I believe, in a position to decide. The rule will be absolute for a new trial. Fellows, J. — This was an action of ejectment. The plaintiif put in evidence a certificate of title, and closed his case. The land in question was rectangular, was bounded on (he north by Fulton street, and contained little more than an acre. According to the defendant's evidence, part of the soiitheru boundaiy was an allotment belonging to the defendant, and the remainder of that boundary was an allotment belonging to some other person. More than fifteen years ago the defendant put up an irregular ring fence of brushwood, and enclosed within it, according to his evidence, part of his own allotment, part of the other southern allotment, and part of the land in dispute. On the last lie put up a shed and pig»ty, and on his own he erected a house. These were all within the ring fence. The land in dispute was bounded on the east and west by t!ie land of other persons, each of whom afterwards put up a dividing fence between his own land and the land in dispute. The northern boundary, which was out- side the ring fence, was unfenced till about three years WF 222 TOHliKXS CASUS. t m i a{i<>, when one KobinHon put up a fence and gate, whi(;h the defendant unfaHt(>ned by drawing the staple. It also appeared that the def(>ndant had removed a tree from the hind in diHpute, and tluit wlien Robinson chiimed com- penmition, th(> defendant told him he muHt i>rove his title. There wax no evidence to Hhow when the title of the plaintiff, or of the person through whom the plaintiiT claimed, tirst accrued. [•1.18] Upon thesi* facts, a verdict wa« directed for the plaintiff, with leave to tlie defendant to move to enter It for him, tlw? Court being at liberty to draw any infer- ences whi<'h a jury could. As the facts spoken to by the defendant's witnesses were controverted very mat(?rially by the plaintiff's witnesses, and as the opinion of the jury was not taken on those facts, the Court is not in a posi- tion to draw any inferenct-s, so that the matter n»solves itself simply into a question whether there is to be Ji new trial. It was contended by th(? defendant that the burd(?n of proving that tlie action was brought within the pro per time, was on the plaintiff. This the plaintiff denied, and also contended that th(«re was no evidence of " pos session " to defeat his title. Before the 3 & 4 Wm. IV., cap. xxvii., it was necessary tliat the real owner should have been " disseised," tliat is, he must have been turned out of his tenure by soinc person who usurped his place aud feudal relation, Taylor V. Horde,-' and "there must have been an 'adverse' possession for twenty years to give title," per Bayley, J., in Doe v. Clarke.22 To ascertain whether it was " ad- verse," inquiry had to be made into the circumstani'cs of the ])ossossion, in order to see whether it was, or was not, compatible and consistent with a freehold in the claimant. It depended on the feudal doctrine that the freehold must be, either by right or by wrong, in some- body. The disseisin operated as a transfer, in fact, of the freehold. The disseisor became the wrongful owner 21 2 Sm. L. C. (5th Ed.) 495. 22 8 B. & C. 720. STAUSTOS V. RROWy. 228 of the fi'ocbuld, while the OHtute of the disBeisee, or rightful owner, wuh cut dowu to what the law called a " rij{ht of entry," and under certain circuniHtances, thai right of entry might be loHt, and the disHeiHee put to his n'al action. It wan all important, therefore, before the present Act, to Hee thai tlie posseHsion was adverse. If it were not so, tlie Htatutc of Limitations was no defence. Hut by the present Act tlie distinction is abolished ; although, as it was pointed out in Nepean v. Doe,^^ it might, and in Doe v. Williams,^* it actually did, become a question whether the possession was " adverse." That, however, w«s in consiequence of ["loD] 3 & 4 Wra. IV. cap. xxvii., Hec. 15, an enactment which has no parallel in our Act. The only inquiry now is as to the fact of possession, and not as to thd doc- trine of non-adiverse possession. I cannot adopt that construction. The words which are used in that section had been previously inserted in certificates of title and in those instruments they had been held to mean such a possessith Ed.) 470 ; 2 M. & W. 910. 24 5 A. & E. 291. 2B 2 Sm. L. 0. (5th Ed.) 476 ; 2 M. & W. 910. *'»4 W. W. Aa'R. L. i:;. 1. 224 TOHUKS'S CASKS. bocaiiHe no "riglilH" over did or could "BuV)slBt under udvtM'Hc poBHosHion." Tlu' rtT(M f of IIm' old 8(>itut(> of Mtnitations wux Hiinply to bar tlu* roniedy, and not t(» destroy the ri^ht, which Htill continued in the true owner, who, if the defective title were afterwards cast upon him, was remitted to Ids ancient and more certain title. (Co. Litt., :UJ).) Hut under the present Act 2^ "rights" do subsist, for by Sec. 4.'J, the old title is extinguished, just as it was formerly by the operation of a fine. I therefore come to the conclusion that the word "ad vorso " must b« rcjul ill its popular hcusc. " 'I'lic Trun.sl'ei' of Land Statute" is far from technical, and I am of opinion that when the wrong man is in, and the right man is out of possession, the possession is "adverse" within tlie m(>ai>ing of that Act. Is then», then, any evidence of possession ? In my opinion there is. Any act done upon tlie land is admis- sible — Woolway v. [^IGO] Rowe^" — a mere pt'rambulation is such, and a fortiori is the erection of buildings and fences. Nor do I feel pressed with the difficulty of say- ing to what area these acts of ownership are evidence of title. Cutting down a tree in any part of a wood Is evidence of title to the whole, even though it be unen- closed, Jones v. Williams,^' and, in like manner, working under part of a demised tract of land is evidence of pos- session of mines under the whole, Taylor v. Parry." Whether land i« called by the name of " mountain." "wood," or "allotment" can surely make no ditTererjce. "The ownt'Tship of one part," says Tarke, B., "causes a reasonable inference that the other belongs to the same person, though it by no means follows as a necessary consoqnenc*'. for different persons may have balkj^ of Innd ill the same enclosure ; but this is a fact to be sub- mitted to a jury:" Jones v. Williams supra. The fact of occupation of a manor or an allotment is one thing ; the extent of that manor or allotment is another. 2T " Tho Ronl Property Stntiiti' 1864." 27 Vic. (No. 213). 2*1 A. K. 117. 2B 2 M. & W. .^^1. 80 1 M. & Gr. 604. uTAU^Tuy I. jtHuwy. 22/S Th«* fvUlciKM' in lliiH case wuh itropci' lo h' Hiihinilti'il to a jury :ih {noot of llio uwiKTHliip of ilic iiliotiiUMil in (I*H|>ut('. WlH'ther tln' ai'tM lelh'il on in any niH«', \v»'ri' •Ion«' in tlic j Km'rtloii of a I'iglit, or \vt'r«' nicro actn «»f ti-cHpaHH, iM for the jury lo dftt'i-nilnc, lUw v. UobcrtH ;^* iIioukIi 1 'uMiId ol)H<'rvi> that the (>x]ti'(*sMion, "aHHcriion of ri^ht," tMiinot inciin that the di'fendanl HiippoBc I lu' liat] any iij;ht — for confcHm'dly he luul none — but it n ( anH were (he arlH done in llie Hunie open manner tltut u rifflitfnl o\^uer wonhl have done theni. o.* \ver.» tliv don<' by Htealtli, and with a view to prevent detection and diHeoveiy *' In the former <'aHe tiiey would Jiiuu it io poHM<'HHion by reaHon of the Hnpp<».«r, and in the latter lliey wonhl be nothin;^; more than trcHpasHeM. Ah re};ardH the queHtion of proof, I tliinlv lliat it lies on the party, whether plaintitT or defiMidant, who sets up a ehiini under the statute of I^iinilatiouH lo prove it. just as he had formerly to prove a ndant would then have had nothing; to do but prove his own possession for tifteen years. This Court hjis already decided that a party need not prov«» more than his docu- mentary title, until his opponent hj»s prov«'d that he or others have been in possession for fifteen years, Weipill v. Hlyth.""'' The real owner may malce an entry at any lime within the statutory peritwl (fifteen years in this colony) after another has talcen possession. Smith v. liloyd ;''^ and if he may make an entry, he may of course? hrin^ an action, for both remedies are on jjrecisely the same footing; ; and in neither case could he show posses- sion within fifteen years, if the land were unoccupied till 31 1;{ .M. Jc w. r>,'«. 32 12 Knst. ir»4. 33 .n A. J. R. l(Xl. 3<9 Kx. rir.2. H.TOH.CAH. -in T^ 226 rtHlHKSS CASKS. i>-. Hlll'll OtIlCl' |MM-SOI) CIlhM'fd. If th*> OWIUT (Mlt*'l' Wllt'll tlic laiul Ih not vacant, and tlw occupier hu<' liiiii in ti-cn jMiHH, Ihi* HiUiH' question iiiijM'H as in rjtM'tint'ul, .lonrw v. ♦Foni'w ; ■'■'' juhI if tlie ofciipi«M' prove tlft<'<'n vt'iirH* poH HcHHiun, li(> inalvCH out a prima fa(l it" by proving thut tho |»lt'r«»H W«'l«' IM'irill'MU'd. So li4M'(> : tli(> itlaiiitilT ikmmI not |>r when liiH title iirrnicd, until the neceHHit.v for HUeh proof Ih eHtabliMhed It.v evi(l«'n«'e on the part of the (h>f reaHunM I think that tli(> rule Hhould be iihsolnte for a new trial, and that the eoHtH of the tlrnt It'ial Hhonid bo coHtH in the oauHe. Stephen, J. — The actH reli«Hl on to prove "rijjhtH Hiili- sistin^ under adv(>rHe poMHeH^4ion," within the meaning of See. 4 of "The TrauHfer of Land Statute," are eerlain iiclH of occupation of portions of the land claimed, vi/.., the erection of a pijfHty and Hhed in one corner, and of a iirush fence encloHin^ part of the land, together with sonic land of the defendant, aind Home other land belon^- \\\\l to an adjoining owner. It appear(>d to nie at the trial iliut theHc actM were not, of theniHelveM, any evidence of iidverHe poHHCHHion. The whole question depends upon the nicanln); of Sec. I!» of "The Transfer of Land Statute," by which " rights siibsistin); under adverse possession " are saved. Murphy v. Michel ^' was a decision upon a certificate of title con- tiiinin^ Himilar words, which was issued under "The Weal Property Act " (No. 140). It may perhaps be «'on- ( eded that the decision applies to the present Act, and that the words "adverse possession" are to be inter- preted with reference to the Act 3 & 4 Wm. IV.. cap. xxvii.. Sees. 2 and 3. [•lO,*?] But can mere acts of occupation such as I hav;» described, raise a presumption of " rights acquired," so as to invalidate a certificate of title ? Reverting to the old doctrine of adverse possession, it has been described as a possession incompatible with a freehold in the claimant. It appears to me that there is no evidence in this case of such possession. If the defendant's case depend upon rov«' (lie n«M'fHHai,> fiirlH in oidtT to brint; liiH ciiMP williin tluil Mcrtion. ArrordinK to •Iuiuch v. Suitor,'- tin'iv may ho vuhvh witliin Hev. U, uot witliin Kci*. .'{ ; timt iH to mu.v, tiuM'e may hv riKbtH acquiriMi i>y poHHcMMion, not witiiin tlio vunvn (>niiin«'i'ati'd i^' Hov. ',\. Hut (iocH not niei'c ]>ottHcHHion raim* any prinui lacie i)i'(>- Huniplion or rif^litH ho aniuired ? Tct raiMo any micli pre- Hiiniptioii tlic artM of ownd'Hliip inuHt, aw it m'cinH to nic, hv Hucli aH would liavi' hvvu ovidcneo of title under tlic former law. Tlu> nature of mucIi evidence in well illuH t rated by Doe d. Wm. IV'. v. Hobertu,*" in whieh It was left to the jury '* whether tliey wer«» UftM of ownertdiip done in the awHertion of a ri^ht, or whether they were mere aetH of treHpaMH not aiquii'Hced in.'' A pra<'ti('al ditticulty ariHeH in thiw eaHC in the appliea tlHHi(m Ih taken of one rttoni in a houHe, or of one rorner of n eloHe, that nuiy well amount to a poMMeHHion of the whole house or close : HO poHHeHMion of part of an eHtat<*, or of th(> waste of a manor, if taken in th(> assertion of a ri{;hi, may amount to possession of the entire property ; so in eases under Sec. a of the Act of Wm. IV. it will be found that gen erally no such difficulty can arise. But, if the right is to be acquired by mere occupancy of a piece of vacant land, how •is the <*xtent of the area affected to be ascertained ? In the present case there is no evidence, or presumption, that the owner was, in the eye of the law, out of actual ])osseHsion of so much of the land as was outside the brush fence. If so, why should not the plaintiff recover that portion of the land, by virtue of his certificate of title ; and on whom lies the onus of defining the l)Oun- dary between these respective portions ? I have thought it riglit, in a case of so much import- ance, to state my views, where they differ from those contained in the [•164] judgments of the otlier members of the Court; but, ha\ing regard to the difficult questions of law which are involved in this case, and which have been *2 ,T Bing. N. C. .'•.44. M HTAVSTOS I. llHinyS. -n.) MO fully ruiiHJilt'i'ril, I roiiciir in Itir i-i'miiIi ariivi'd at — I hill (lu'i'c Hhuiilil III' a iirw Iriiil. Uiilr almoliili' for a new trial. Atloriioy for itlaliitlfr :— ravfv. Atloriii'y fur tlt'ffiitlioit :— AiitlorMuii & HuiitliltiiidM. VurroiuA. IHOO.) 112 A. L T. 41). (JUNN V. LAM) M()KT(JA(JK HANK OF VKTOUIA (Ltd.) and otiikhs. MoltiHHir Stilr — \ntiif — •• Tlitllslfr nl' l.illlil Stiltlltf," .hii.HI, lO.'l, A iiiiitiiiii iiiiilrr S)>c. St can )><> Hcrvnl It.v ncimIIiiu tli«' huiiii' tliroiiKli till' |hihI iillitT h.v a ri'Ki>t(<>r inlilrcHxiMl to tli<> r)>t;i.4- tori'il |ir<)|ii'i<'ti>r at •In- aililr<>Ns a|i|M-ariiiK in ilii> n>KiHti>r lionk. iillluinKli that |iri'i*>tiir lii> ilcail. SlortKaxt'oH t'XcrriHhiK a |m.\vit nf Hale an- IiouimI to lake i'i>aN(inalili> nn-anN to olilain an a.v nri' not, Imwi-vrr, i-i'h|ii>iihiI>Ic if, alter takinu' all ri'MNonalilc nii>anH, an inail«>i|uatf |)rir<' Ih olitaini'il. Affion of FranciH 0. and gave \\h Hoonrity two laortKHK*'^ ovoi' I wo piccPH of land : tlio lantl coniprisctl in one of llio iiiorlpip'8 was 14!) arros at RoHi'dalo, of wliicli tin- iiMifluaj^oi' was tlio rcjjiHton'tl pi-oprictot- iiiulor r to jmy to the iiun-l^aKoo tlio pnn('i<,,;| sum of £250 on Iho 1st April. 18SH, jind inloicst thorcwii in tlio moantinio at tlio rato of 10 por ffiit. ]»or jinnimi in lialf-yotirly Hnms on tho Ist of April sind 1st Oo- tobor in cjwli year ; (2) 10 days to bo tlio poriod of liiiio for wliicli the default mentionod in tho 84tli section of the "Transfer of Land Statute" must continue previously to the service of the notice in the said section mentioned, and 20 dtiys to be the period for which default must con- tinue afti'r the service of the sjiid notice before the power IMAGE EVALUATION TEST TARGET (MT-3) /. i z 1.0 I.I 2.5 - lis lllllio 2.2 u 1.25 1.4 1.6 -^ 6" — ► V] vQ 7. '/ -«« Photographic Sdences Corporation 23 WEST MAIN STREET WEBSTER, N.Y. M580 (716) 872-4503 1 ^ ^j^ ^ \ 2:u) TonnK.S'S VASES. i-f of Hale piven b.v tho said 84th stMtion ('(mid be exercised ; (o| the word moitgageeH to include Hin-ccssors and as Kij^tiH and every covtMiant with or h.v the niortj^agor lo be deemed to extend to and bind lier lieirs, executors, administrators and as far as may be transferees ; tlu* land comprised in the other mortjj;a};e was live acres at \'ale, of which the mortgaj^ee was owner in fee simple ; this land was not under the "Transfer of Land Statute" and the mort}^a}j;e was in the ordinary form in use under Hie jfeneral law ; it contained covenants similar to (1) and (3) above mentioned. Ellen Spencer died on the nth Februfry, 188S, and probate of her will was granted (o the plairaitfs on the 8th March, 1888. It was alleged lliat the euJant bank had notice of the death of the mortgagor and o* the grant of probate to the plaintiffs. Snbsevjiiently jo bank acting under their power of sale Kolvi. the two . s of land to the other defendants. No- tic e ot iiiienlK.ii :o sell was given in ra His Honour: — The action was brought by the executor and executrix of Mrs. Ellen Spencer against the Land ^^ ymmm 282 roiiHK.\'s CASKS. Morl^ap' lliiiik of N'uloi'lii. the inoi'tj^iij^ci's of two pii'ccs of land l)('lon}?in}j; lo Mi's. Spciuoi'. Tlu' iiu)i'tpi^t»H were iiiji(l<' on till' 2Uh March. 1HS7. The mortgagor died on the 11 til Fobi'uaiy, ISSS. There wcro two canscs of action relied on in the Htatenient of claim, the llrst bein^ that no notice of the sale of either piece of land \vi\a ix'wow to the mortga}?or, her execntorH or administrators. The second cause of action was that the defendants nejifh'cted to olitain from the purchasers of the mort- j;af;ed land a fair and reasonable price for the land. The tlrst cause of action in each case arose upon the instru- nuMits of mortgage. One piece of land was situated at Kosedale, and contained 140 acres. It was registered under the '* Transfer of Land Statute." The plaintitfs com- plained that they did not receive from the mortgagees notice of the intention to se'V to which they were en- titled under the mortgages, oi under the Act, or under both. The mortgage contained a covenant, that every covenant or agreement with the mortgagor should be deemed to extend to her executors. IJut this mortgage deed contained no covenant of which a breach was alleging in this action inuring to the benefit of the mort- gagor, and the benetit of which the executors would be entitled to claim. Substantially, the case was put as a case in which, under the 84tli section of the statute, the (executors were entitled to claim the same notice which the mortgagor would be entitled to claim ; and although there was no covenant in the mortgage deed to that effect, he thought that the executors would be entitled under the statute itself to receive a notice, or that notice should be given under the statutes in the event of the mortgagee becoming entitled to the rights which the mortgagor (sic) possessed under the statute. Sec. 84 pro- vided that notice of the forfeiture must be given. It applied to both as to service of the notice. It provided that the mortgagee shall be bound to serve on the mort- gagor or grantor or his transferees notice in writing to pay the money owing on the mortgage, in one of three ways : Thirst, either by giving notice to the mortgagor himself ; or secondly, by leaving the notice on the mort- gaged land : or thirdly, by sending the notice through 'V .' i. aUNN r. L iX/) MOllTnAUE /fJNK oF VlCTiHilA. 2.SM l»r(»)»ri('t<)V of ilii' liiiul at his uddipss jipin'juiii^ in tin* i«'^ist«'i* )»(M)i\. 1 1 liiul IxM'u ('ontt'iidt'd by Mi'. Wood tlint this tliwt altciiiiitivc must be road as if tlic st'ction con- l:iii!cf <'nfor«iu<; liin lijilits under tlic nioi'tjjafjc. Ar- roidin;j;l.v il was itiovldcd tliat even alllioujjli tln' iiiorl- };aKt>'' l'<* alive and incwent it waK comiM'tcnt fov tlic inortKaKCL' (and it would be reasiuiable if tho nioii- jia^''*' did not know of the existonco or presence of tlu* niort^a^oi) to etTect service in one or other of two wavH, namely, It.v leaving the notice on the niortnuged land or hy sendinj; it thronyh the post-otlice by a regis- tered letter. I think it is reasonable tliat the mortgagee sliould take cai'e that he Avas in a position to receive a letter addressed to the address appearing in the register hook. It Mas clearly the intention of tin? Legislature lo ;.',ive the mortgagee the option of taking one of the three methods of ett'ecting a valid service mentioned iu Sec. S-l. The same observations might be made with little variation as to the mortgage under the general Act. Ther;' wei'o two covenants in this mortgage correspond- ing to one of the covenants under the " Transfr of Land Statute," and providing that the borrower should have certain po\>ers, and that the powers and rights should devolve in his representatives. There was also a provi- sion whicii he thought ought to b(? regarded as a cov- en.'int whi
  • i><'r time he might proceed to sell. In this case the luoHgagee had adopted the course of sending a notice t(» the re«'istered proprietor to the address then appear- ing in tlie register book. The executors were not pre- sent at that nlace and had not taken the means of securing that a letter addressed to that place should be sent to them. It was returned to the dead letter office and from that was returned to the mortgagees. Bui UUNN r. LASI) MoHT<.Aht: JIAAK t)F VK'Tt^lllA. 286 lh<' fact tlint tin' «*xc TonilJiXS CASKS, (■()urs(> of action would l>(> laid, anil if it wcri* cMtaMiHluMl l>y proof, that snliHtantial dania^cH rouM Ix' obtained. The autliot'iticM cited for tlie dcfciidantH do not H(><>ni to inu to «'onili«t with tliat view. It nii^jht be that u niort- pmee waw not a trnst«*e. Tt inl>;hf 1m' that accordinj; to tlie pas! practice in «Mpiit,v, a niorttjapeo niifjht be only liable either foi* a coHuHive wale or for wilful default in not 1alF \ fr'/nniA. •237 liiHt week. Tlic vahh' b.v tlu' dcfcmljinls' viiliin* wan £411"). Tlu' ii'Hcrvc |H'i(«' wan llxfd at HHH). Siiidl.v H|H>aking that irscrvi' hIiouUI have bcj'ii followed, hut llie circiiiu- HtauccH showed that thei(> was a Huttlcieiit reason for not foUowin); it. The auionul adually obtained was £:U(i. ilnl with r«*f,'ard to All'. MrLean's estiniate. it must be noti« id ine to the conelusion that the price actually obta'afd was wholly inadetpuite oi' unfair. It was in evircnce, and Indeed it was ho much a matter of commo!) unosv- ledu*' UH } ImoHt not to reciuire any evidence, tluu valua- lions of leal pi'o])efty in this part of Vii'toria, were most imperfect means of fixing the price of land unless they were founded ujjon actual sales of land in the vicinity of the land valued and of saleB at a pe-iod of time not remote from the time at which the land was valued. Such actual sales should be sales of property not sold under circumstances of pressure by the vendor or under circumstances of special excitement influencing the mind of the purdmser. But a mere general estimate not founded upon actual sales was of little practical value. There did not exist here, as in most parts of England, a standard value of land, varying from time to time with the state of the public funds. No such test existed here, and the only other test here was that of actual sale. 1 cannot therefore say that the valuation of Mr. McLean was so disproportionate from the price obtained as to justify the conclusion that the price obtained was wholly unfair or unreasonable. IJut even if it were, the damages claimed in this part of the case were claimed on tlie ground of action which was no cause of action at all. Therefore, on both grounds, I think, the plaintiffs haAo failed to support their case, and judgment must be entered against them, and with costs. For although the action of the bank towards the plaintiffs had not been such as he thought it ought to have been ; yet there had been nothing to complain of in the conduct of the bank either in the sale or in the course of the proceedings. I do not thinlc that the authorities or reason justified the withholding of costs from a successful litigant on the 2att TitHUKSS CASKS. ti'iMiiul Sliiil (liii'iii;^ tli«> cnrlicf prlw<>i'ti llio |Nir(i«*K llii'.v a('l«*il lnc((iisil' [.and Stutiiti' " (Xo. -iOl), m. of tilt' notice contained in Sc<'. H4 of that Act, in mannoi' tiicrcii' niciitioiicd, iiikI a fiii'tlici* default in payiuent for ncvcu dayH, was made a condition precedent to the exeiviHe of the power of Hule. Default WRH made in payment of interest, the principal not lien;; yet due. Tlie inortKaKee nerved on the niortpiK'H' notict! that he wouhl exerclHc the power ; and it should li<> lawful for the niortKa};e«'H to nerve [*in] on the moil- ^'a;;or the notice mentioned in Sec. Hi <»f tlie "Transfer of liand Statute" by either of tlie modes mentioned in it, and after such defaidt in ]»ayment cimtinuinK for the further spac'c of seven days after due service of stich notice it should be lawful for the niortj;at»ee8 to exercise I lie tkower of Hale, and all other tlu? powers and authori lies iiHuitionod in and jj;iven by the Act. Default havint; been made in payment of interest on 1st Novomber, 1871, and for a further Hpav<' iiM> liiiii, ami to icNtruin lli«> (IcfiiulaiilH |{o\v«* hikI Itiirwitk from iitinsffiist); ilu* utlici' IiiikIh riiiii|triK«'<| ill ilic iiioi-i^ii^'c of IkI Miiv, isTi, iiiilil (Ik'V had kIvcii iiulirf iiimIit Him*. H4 of tltc Art Im tli<> |)laiiilitr. Mr. a'Hrrkftt for ihr iiiotioii :— Tlio "Tniiinrcr of I.atxl Htafntt'" (No. :{01i. Srr. Ml. provhli-s that in msn of Hiirli a (ii'fanll in pavinnit of iiitorcHt, aH tliin doiiltt- h'SH was, llic inort);au<'c nia.v H<'rvt' on tlic inort^^a^'or notice in writing to pa.v th(> money owin^ citlicr l>y ^iv- ill}; Hiirli noti('(> to liim, or l>y Iravin^ it on lli<* mort|;a};<>il Inml, or b.v HcndiiiK it tliron^li n poHt otiirt' liv a re^iH- tcred letter direrled to tlie proprietor at tlie j.ddreHM mentioned in tlie re);ister l)ool%. Tlic notice in tliiw case waH by an iinrej^iHtered letter, and was therefore insiilHl elent. Xor would the h'tter, If reniHtered, have liecii hi:tY!cieiit, for it did not demand payment, ["Ho] Init vhk merely a thi'eat of the consetpienceH of nonpayment, which McDonald waH entitled to dlHrejjaril, more eHpcci- ally as tlie lett<'r mentioned hh an immediate coiiHeqiienct* of non-payment, that which conid at all events not liiivc followed f«n' the »pac»' of Hcven dayw. jih jtrovided by the covenant. Mr. llolroyd for the d<*fendant IJarwick : — The ])io vision in Sec. S4 of llw '*TranHf«'r of Land Statnte" as t(» r<'jj;istered letters is merely to secnre the arrival of the noti<'e. If it can be proved that the letter reached its destination that is all that is necessary. It is only where the mortpifjee is nnnblo to prove nctnal receij)! that the precaution of renist'in'inR the k*tt<'r hikhI be shown. Mr. Lawes for the defendant Henry : — This defendant has a riffht to have rejjistered the transfer, for which he has yiven valuable consideration. He knew nothing of the non-sufflciency of the notice. To be affected by it, notice, or at least knowledge of it, must be broujjht home to him : Foster v. Hog^art.^ The defendant Rowe was absent from the colony. Mr. a'Beckett in reply. Cur. adv. vult. 2 l.'i Q. B. I'm. hTrhnXAU, ., /joir/r. 241 MK. .11 S'JMi: .M()M;snV(H{TII :- ThiM riiH(> roiiM'f4 iM'fitrr iiii> on u iiiotloii for liijiiiic- tloii lo ifHliiiin llif pluvlsiolis <»f tlit> Art No. :{0I. Hit* tiiilisl'i-f tiMtiii IIm' (Irfriiiliiiils Mrsst-H. |{u\vf iiiid Kniwiik lo liini of iiilolninil 2, K«>r. !Mt, loitl of tillotiiifiii 1, Si>c. !)7, nii«l l*iirt of iillotiiicnt 7, Sec. \)\ ; ninl to rrstniiii lli«> drfrii- • liiiitH Kowr aiitl Kiirwick fi-oiii li-:iiiMr<'iiiii^^ the oiIut I.iikIm coiiipriMiMi ill II iiio!t,v'ii;>i' of 1st Mti.v, ISTI, until ilicv hIdiII litiv«> p:iv<>!i iiolirr to iIk* phiiiititT, Mr. McDoii- aid. iiinlcf tlio An No. :{01, Scr. SI. TIm* iMort;;ii;;i' in <|ii('stioii was iiiinlf, as iiih1>'I' tlp> Act, b.v .Mt'Doiiahl to Uowc and Harwiik to :<(MMif(* £l,:JO(» |»a.vald»' 1st Mav, \s'\\, and lialf vraf's iiitcfcst payahli- iHt Novriubor, lx7I, witli saltscipa'iil iiilncst r*IM»l <|nai'l('rly. It pi'ovidcd, ainoii;;st otlxM* tilings, at in case default sli mid hi* iiiadc in pavincnt of the piincipi.i o!' Intort'st, an tlw power of sale and all the other powers and authorities mentioned and jjiven by the Act. On 30th December, 1S71, a half-year's interest, du4' 1st November, remaining- unpaid, Mr. rJarrard, author ized by the mortgagees, sent a letter to the plaintiff by jiost, not registered, which was duly received. [His Honour read the letter ut supra, j). 144.] Tliedebt remain hij^ unpaid, the mortgagees sold by aucti<»n part of the land to the defendant Henry under, 1 assume, a cotitract regtdar between ordinary seller and buyer, who paid part cash, part bills ; and other part to another pur- ♦ haser, Mr. Peck. There iire various objections to this notice and the service of it. H. TOIl. CAM.— 1(J "wwr iT"'^ T 242 roRRENS CASES. Tpon default in pjiynu'iit of interest the niortKap'os lind an <»i)tion ol' recjuirinji; payment of both principal and interest, or interest only, and the exercise of that option in the former way would entitle the plaintiff to pay both. I think the notice was defective in not distinctly exercis iuK the option. I rather think the mortgagees' jiower nii^ht be exercised by an agent, and that the agency was sufficiently asserted. Tae letter is not a demand of pay- ment, but a threat of the consequences of non-payment ; and that vague, referring indistinctly to several powers given by the Act, and untruly, as threatening conse (iuen<'es of not paying ** forthwith," whereas the conse- (piences would follow seven days' neglect. Upon thestj grounds I am inclined to think the notice ineffectual, though the last may be met by Metters v. Brown.*'' As to the manner of sending the notice, I rather think the words in Kec. 84, "giving such notice to him," are sat- isfied when the notice in fact reaches the mortgagoi. There is no reason that a postman carrying an unregis- tered letter should not be as effectual as a private mes- senger. [*147] The provision as to registered letters, T think, means that this precaution, beyond mere posting;, must be shown whem the mortgagee is unable to prove actual receipt. For the reasons above noticed I think the motion should succeed as against the mortgagees. But the defendant Henry appears as a purchaser for valuable consideration without notice at the time of en- tering into his contract. The 85th section appears to me to validate contracts, not merely conveyances or trans- fers, when registered under the Act, and to protect con- tractors knowing nothing to impugn the propriety of the sale when contracting. Forster v. Hoggart* decided that a purchaser taking a contract for title as under a mortgage power, where notice should have been given and was not, might rely as against the mortgagee upon the objection, notwithstanding a clause that he was not bound to enquire. Here the mortgagor is seeking relief against Henry resisting. As to the other purchaser, he 3 9 Jur. N 5, 958 * 1.1 Q. B 15.'>. W R! McDonald v. rows. 248 is not a party, and I am not to antioip.ito tlio case which he may v.i8h or bo able to make. I feel much doubt as to thes(» opinions. Motion refused as to dt-fendant David Henry. Order tliat defetidantH Thomas Kowe and Janu^s Harwick be restrained from transferring the other lands (describe from mortgage) or any part thereof, as on a sale thereof as mortgagees, until after they shall have given notice to the plaintitf, as by Sec. S-t of the " Transfer of Land Statute '■ provided. Reserve coats. Solicitors :— Jonniiife's & Cooto— Bciiiit'tt .% Attonl)oiwiBl». Victoria, 1871.] 2 V. R. (L.) 113. In the Matter of " THE TRANSFER OF LAND STATUTE," In the Ma'iter of CHARLES SALTER. Mortyaijc — Trustee — Power to sell or inortiituje — Power of sale — •' Transfer of Land Statute" {Xo. 301), ss. 19 and 32. A trus.oe having power to sell or inortK.ifie. executed « inort- ga>,'e containing a power of sale in case of default of payment ipon one month's notice. Upon an application by the purchaser under the power of sale to bring the land under the " Transfer of L.ind Statute," the Commissioner of Titles refused to register the land. Held, that this was a case for an additional indemnity to the guarantee fund under Sec. 32 ; but that the transfer should be reglBtored on svich indemnity as might be required by the commissioner Iteins given. Summons to the Registrar of Titles to uphold the grounds of his refusal to bring certain land under the "Transfer of Land Statute." The case as stated and signed by the Commissioner of Titles was as follows : — 1. On the 23rd of April, 1863, a piece of freehold land, part of Crown allotment 5, of Sec. 3, parish of Bungaree, county of Grenville, was vested in trustees ui)on trust for Harriet Jackson for life, for her separate use, and after the death of her hu.hand, William Ja«k 244 ToIiRENS CASES. son, for life, with ronmiiule!' to thoir children, as tlioy or their survivor sliould appoint, and in default of appoint nicnt to tlie cliildren, (Mpially with an ultimate remainder to William Jackson in fee. [*144] ■ 2. The conveyance of such land contains the foUow- Injij agreement and declaration : — " That the said trus tees or the survivor, or other the trustees or truFti*e act ing in the executioii of the trusts hereby reposed, m;iy at any time during the joint lives of the said William Jackson and Harriet Jadvson with their consent in writ ing, or during the life of the survivor of them with his or her consent in writing, sell and absolutely dispost* of tlie said trust estate, lands, hereditaments and premises hereby granted and released with their appurtenances to any person or persons whomsoever for the best price or prices which may be reasonably had or gotten for the same. And also to raise any sum or sums of money by way of mortgage of the same lands and hereditaments and pre mises, and to receive the purchase or mortgage moneys to arise therefrom and good valid receipts, releases and discliarges to give to the person or persons paying the same, and to execute all necessary releases, conveyances, mortgages and assurances to the purchaser or purchas- ers, mortgagee or mortgagees thereof which may be re quired. And upon trust to stand and be possessed of thf moneys to arise from the sale or mortgage of the said lands, hereditaments and premises for the sole and sep- arate use and benefit of the said Harriet Jackson and William Jackson, or the survivor of them and their issue upon the trusts hereof, with power to invest same in tht* purchase or mortgage of freehold lands in the colony of Victoria, or in such other manner as the said trustees or the survivor of them, their or his heirs, appointees or assigns shall deem fit and advisable." 3. On the 18th day of May, 1804, Messrs. Walsh and Hitchens, the then trustees, at the request of Mr. and Mrs. Jackson, who wefe parties to and executed the deed, mortgaged the land to Issac George to secure the repay- ment of £200 then lent by him on the 18th day of May, 1860, Avith interest in the meantime at the rate of £2 10^. IN RE CHARLES SALTER. 245 per cent., i)a,vable lialf-.vemly. In the mortgage deed a jmwef of Hale waH ^iven to the niortpigee if default was made in payment at the end of one month after notice in wiitinj^ to the trustees of any intention to exercise such jjower. 4. On the 17th of December, 1870, Isaac George, hav- ing previously given a month's notice, sold the land under his power of sale to Chas. Salter, of Ballarat, for £li1(l ;}s., and the latter had applied to bring the land under the operation of the " Transfer of Land Statute." 5. Direction has been given not to register the land, and in compliance with a requisition in this behalf, and pursuant to the 13oth section of the " Transfer of Land Statute," the following are stated as the grounds upon which sucli direction was given : — (1) That in the pre- sent state of the reported cases, it is not expedient that the colony should become the guarantor of a title cir- cumstanced as the applicant's is. (2) That a power of sale exercisable after only one month's notice was not authorised to be given by the trustees, Messrs. Walsh and Hitchens, to the mortgagee, Isaac George. The Supreme Court is referred to the following cases : Clarke v. Royal Panopticon,^ Bridges v. Longman,^ Re Chawner,3 an English decision after the passing of the 23 & 24 Vic. cap. cxlv., the section of which, mention- ing six months, was adopted in Victoria on the 2nd June, 18G4 (being after the date of George's mortgage), 3 Vic. Stat. p. 476, Sec. 16], of Act No. 213 ; Stodart v. Htod- art.* It is believed that the Master in Equity in this case approved of a power of sale being inserted after a tliree months' notice. [*115]. a'Beckett for the registrar : — In the first case, Clarke v. The Royal I'anopticon,'* it was held by Vice-Chancellor Kindersley that a power of sale was not incident to a mortgage ; and where shareholders having power to 1 4 Drew. 20 ; 3 Jvir. N. S. 178, •■' 24 Btav. 27. 3 38 L J Ch. 726. * 6 W. W. & a'B. Eq. 59. " 4 Drtw. 20. m 240 TORRE NS CASES. authoriHe a sale or mortpage authorised a moitgajjc i< waH held that the ti'UHto<»8 oonid not givo tlie power to sell. This wan, however, not followed in IJridRes v. Longman" nor in Cook v. Dawson.^ Subsequently to these decisions an Act was passed in England, 24 & 25 \'ic. caj). cxlv., adopted b.v the '' Real Property Statute," No. 2i;{. giving the power of sale as incidental to a niorl- gag<*, i)rovided six months' notice was given ; and after that statute a decision was pronounced by Vice-Chau«'el- lor Malins, in Re Chawner's Trusts,'' recognising the power to sell on six months' notice. In Stodart v. Stod- art," Mr. Justice Molesworth sanctioned money being raised on mortgage with a power of sale, and the Master allowed such a power on three months' notice. Here the nioi'tgage was altogether outside the statute, and thierefore the provisions of Sees. 159 and IGO of No. 21:5 could not be considered as aiding the mortgagee's power. J. AV. Stephen for the applicant : — The Commissioner of Titles, in administering his de})ai'tment, is not to legis- late but only to carry out the "Transfer of Land Sta- tute." That Act directs him to bring land under the Act unless there are conflicting titles. What conflicting title is there here ? At the most, there is a doubtful chance of an equity suit, which nobody would ever think of instituting. The applicant has at least a good holding title. The commissioner does not go so far as to refuse the title on the ground that there was no right to give the power to sell, but apparently chiefly because the notice was too short. Clarke v. Royal Panopticon is dis tinguishable from the present case, as there the trus- tees had no power to authorise a sale at all, and it does not appear to be followed in the later cases. If there was pov»er to sell, the length of the notice was immater- ial. Six months' notice is the rule in England, but one month here in sucli matters is equal to six in England. Under Sees. 19 and 23 of the " Transfer of Land Statute " the commissioner lias no power to reject the title, but at « 24 Benv. 27. 7 20 Beav. 12:5. 8 L. R. 8 Eq. 5i>9. »C W. \V. cV a'H. Eq. GO. IN HH CHAHLfS SALTHR. 247 the oiilHidt' can onl.v demand a laij^ci* indt'iunity from the insurance fund. [*nO] a'Jfcckctt in reply : — The «'oniniis8U)n«'r can not l)rinj{ land under llie Act nntil all encumbrance's are released, and the detlnition of encumbrances in Sec. 4 is snttlciontly larj^e to cover this case. The applicant's ar^iument amounts to sayin}^ that the commissioner is hound to rejjister the title of anyone who has the lejjal estate, no matter how doubtful it may be ; whereas the iruc argument is that the commissioner can take the sjuue objections that any purchaser can. Cur. adv. vult. Stawell, C.J. — Summons callinji; upon the Rej;i»trar of Titles to substantiate the grounds of his objection to the registering of this title. The objection is that a power of sal'.' upon a month's notice is contained in the mort- nage deed, the mortgagors being trustees only, with a power of sale or mortgage. The " Real Property Act," Sec. 50 — which is a transcript of the English Act -.*> & 24 Vic. cap. clxv. sec. 11 — provides for the sale by any mortgagee after interest is in arrear for six months, but does not i)re8cribe the notice to be given of the mort- gagee's intention to sell. In England the notice usually is six months ; in this countrj', it was stated' during the argument that the notice is usually one month. The land was sold after notice of one month only, and the present application is by the purcliaser under that sale to liave himself registered as proprietor of the land. The registrar refused to register for the reason that in the I)resent state of the reported cases it is not expedient that the colony should become the gu.arantor of a title circumstanced as the applicant's is. We are disposed in one sense to concur with the objection, for we think this is a case in which the registrar might exercise the pow- ers conferred upon him by Sec. 32 of the " Transfer of Land Statute." That section provides that " the commis- sioner may require 4in additional indemnity, if he thinks proper, against any uncertain or doubtful claim or de- mand arising on the title." Apart from the exercise of w wi^ i:i "i 24M TOJiKEyS CA fit's. thiH (liHcn'tioii, \\v think the objection hjiH not been Hub. Htnntiated. It Ih not an obJe<-tion that can b(> niain- tained at law, and the probability of its bi^in^ HUHtained in etiuit.v depends on whether the land was sold at an nndervalne, or wliether there was any irrepularity that has not been discloHed. We think, however, that it c(»nieH within the words " nncertain claim or demand," and that it is jnst a <*a8e in which the Legislature has empowered the registrar to prevent tlie guarantee fund b«?ing sad- dled with the risk at an uncertain title being [*1171 registered. It may be registered, and the commissioner may exercise the discretion vested in him by Sec. '.V2. We think the commissioner has grounds for his ol)jec- tion, and tlierefore refuse the certificate preventing his getting costs. Certificate to issue on applicant giving such indem- nity as may be required by the Commissioner of Titles. Attorii«',v« fin- «i)iilii'aiit :— IIolnicH & Salter. Attorney for tho CoininissioiuT :— Giirnor, Crown Solicitor. i ■i :'; Victoria, 1875. | [1 V. L. R. (L ) 319. In re caveat of J. B. SLACK, and the Application OF W. H. WINDER, AND "THE TRANSFER OF LAND STATUTE." "The Tramfer of Land SUttute" {Xo. 301), s. 116—Servm' at place nanieil in careat, A rule nisi to remove ii oiiveat is not properly served uiton the ctiveiitor by lea\int; it at the HddresB earned in the ctvveivt k1 a time when no person is present nt siTch address to receive it. If the nttidavit of service disclose such mode of service, ini-^";;.. of stating, in the usual form, that service was effected, it is unn>'?-;s sary for the caveator, in moving to rescind such a rule, to ui.'ike a counter affidavit that the rule nisi never reached him or came to his knowledge. Held, also — Barry, .T., dissenting— that on admission by the caveator, that the rule nisi did reach him two days before it was made absolute, would not cure the defective affidavit of service, or prevent the Court from rescinding the rule. Rule nisi to rescind a rule of Court. JH HE SLAi K Ay I) WISDKH. 24t> The niU' K<»ujj:lit to 1m' ifHciiidt'd wmh a rule of Sop- tt'iiilMT 17, ISTH, dlivcHii}; the removal of a caveat lod^^'d by Slack under the " TranHfer of Laud Statut*' " (No. :»H). The j?round was tliat the rule uIhI, dated September 11, had not been served upon him or upon any person authorised to receive service on his behalf, or in accord- ance witli the statut«». In the caveat, the caveator ap- pointed "No. 78 Queen street, in the City of Melbourne, as the place at whicli notices and proceedings hereto may be served." Tlu' service of the rule nisi of Septeni- lier 11 was by puttinjj; a copy thereof, and of the alll davits, under llie door at the address named, on Saturday afternoon at 'Z.'M) p.m., after the premises were closed, and no answer was obtained to repeated knocking at the door. The person who so left the rule nisi called at the sauje address on the morning of the following Monday, September i:{, and ascertained from the occupier that the documents had been received. The rule nisi was return- able on September 15, but was not called on till Septem- ber 1(5. In the attidavit in suj)port of tlie present rule, the caveator stated that lie did not receive the copy of the rule nisi till September 14. Box showed cause : — As the caveator merely named an address, in accordance with Sec. 110 of the Act No. 301, at which notices, etc., were to be served, personal service is not necessary. [*320] Such ser\ice as that eflfected luis been held good: Burdett v. Lewis.^ The caveator iidmits having received the documents the day before the rule AVas returnable, and he had ample time to show cause. It as not necessary that he should have four days' notice. If necessary, he might have applied Urc an enlargement of the time. He has not applied promptly on the first day of the term. If the caveator merely name a place for service, it is his business to watch for the service of notices, etc. The provision of Sec. 110 may be regarded as a statutory substituted ser- vice. 17 r. R. (N. S.) 701. w f! 250 TitnitKXS CASKS. Hood hi Hiipport of tiii> nilo : — Thin ciuutincnt (Ioch not apply to the Hrrvic*' of rules of tin* Court. Hut hop- vlco nniMt uu'iin Hcrvicc upon houic person, not the mere leaving; at a plaee. unless so (>na('te<]. The aflhlavit <»f Hervice >ip«)n wliuli tiie ruh' was niadt' absolute did not inform the Court thai there was nt» person at the ])laee when the documents were left there. Though service upon an attorney in a jause need not be up(m him pei- Honally, it must be upon some person, llraham v. 8awyer.- Cur. adv. vult. Tlie Court differing!: in oi»lni(m, the judgment of the majority (Fellows, J., jind Stephen, J.) was delivered by Ste|)hen, J. In this case a caveat had been lod}j;ed under " The Transfer of Land Statute," Sec. 2l', and an address or plaee " at which notices and proceedings relating to such caveat may be served " had been duly given. William Henden Winder sumn oned the caveator, J. B. Slack, by rule nisi, to attend before this Court to show cause why the caveat sliould not be removed : and that rule was made absolute, on an athdavit that it had been served on Slack, " by leaving a true copy at the oitice of Hugh Peck," being the phu e mentioned in the caveat as the place where notices and proceedings relating to the caveat were to bi* served. An application having been made to rescind that rule, on the ground of tlie insuflHciency of the affidavit of ser- Tice, it was contended, on behalf of Winder, that, — as it now appeared by affidavit that the rule nisi to remove the caveat actually [*321] reached the caveator's hands befoie it was returnable, and as the caveator was actually in Court when it was called on for argument, — the defec- tive affidavit was in effect cured, and he was therefore not now in a position to ask that the rule absolute should be rescinded, and Burdett \. Lewis ^ was relied upon. If the affidavit of service had contained any such statement as Erie, C.J., in that case said would be suffi- 2 1 Dowl. Hi L. 400. 3 7 C. B. (N, S.) 791. IS RE SI.AVK A Sit WIS h EH. i:A cicnt, it would not liiivc 1mm>ii open to the ohjcftioii now nin Dc.wl. 32."). n 2 Dowl. 680. 10 7 Bing. 329. r^ 252 Toii/m.S'.S f/IAA'.s. In jiKi^iny; wIkmIkt tliiit nilc wiih pro|M'i-ly iniidc, tlii> CtMirt raiiiiot l<><»k at iin.v wliirli wrro bt'f(H'«' tin* ('(Hii't wlu'H ll ^iimltMl tlu* iiilc "I iiiii «|ult«* «l«'jii'." Hu.vH I'littciMoii, .1., "Hull no lU'W ntlldavit of rollati'ial niallfr can 1m' n'crlvt'd for the iMirpoHc of I'tsi lullnK tlu' ortlci", fllln'r to mIiovv tliat no oauMi' of actioM t'xistcd, or that tlic (U>ft>n(lant \\i\n not about to *\\\\t {]'." countiy :" Itnllork v. tJt'nklnH." It Ih a rule, too important and well <>HtabliMli<>(l to ]H>r- niit of (b<' IcaHt infraction, tinit no man is to be con- (Icnnx'd, piiniHiicd, or drprivi'd of liiw property in any judicial proc('('portnnity of bcin^ licard *, and a urt cannot b(> HatiHli(>d tliat Huch (•ppt)r( unity has been atVordcd, unlcHH it <'l(*arly wes tluit tlu-rt* luiH bt'cn a proper Herviie of the procusa requiring ai»pearanceH. The lan^Mui;j;«' of "Tlie Transfer of Land Statute," already (pioted, in Htron^t'i' than that of "The Common Law Procedure Statute, IHCm," No. 274, Sec. 41:5; so that tlie practice under the former cannot be allowed to be less strict than under the latter. The rule oujjlit not to have been made absolute on the altldavit now objected to. It was so made absolute, im- provide and, in order to upliold a very important rule of practice, it must now be rescinded with costs. Barry, J. — Impressed as I am with the importan citation of any of the niinicrons caHCN in tlx' claHs h\ wliicli It l« Hiippoitcd. In tiu' roninit'iM-ial rawcM, in which ai-iH«> analopins ipicHtioiiH aH to tlic (liMliononi* of ItilJH of cxclianp', and in otiicr inHtanccs \vlit>i'<> proof of notice is a con door : tliat on tin* followinjj i:ith of tlie same monlli lie called at the same place, and was informed by Hu<;h Peck tlial he had received the copies of tlu' nde and altidavits, which he prodticed ; and Slack, in his attldavit. swears that they were delivered to him by Peck on the 14th. There is no nejjrative oath that he ha«l no knowled}j;e that these papers had been properly servt'd, or that they had not reached the hands of I'eck, who was named by him as the person on whom service was to be made. I agree that such an attltlavit is, iind«'r the circiimstances of this case, not required. However, I cannot conceal from myself that there is here an alTirmative oath of Slack that the papers did reach Peck, and were d(?livered by Peck to him ; and, with this knowledj^e, it was, as I conceive, his duty to have appeared in Court, and shown such cause as be could. It is, in my opinioTi, a ease in which the observance of salutary strictness of proof of due service is relaxed by the act of the party himself. Rule absolute. Attornoy for the applicant : — Sievi'wriKlit. Attorneys for the respondent :— Macgregor, Ramsay & Brilie. If^P^HF 2A4 fOMmi,y't vAMtiM, ViCTOlllA, is" I.J 12 V. K. (L.) 10. Is TiiK Maitkii ok tiif: •TUANSKKIl oF LAND STATriK.' Kx PAiiTK DONAM) MTNUO llOSM. * yo. 301, H. li5—l'J Vic, So. 10, B. i:0'-H,j'a.—S,ile n/ himl- Aili'trtimiHiHt, 1.1111)1 iimh-r tin- " 'rniiinli'r of I."*.!! Sliiinf*' " whh IcvIimI mi timlcr II *'.. ill. 'rii«> Nlifriir iiitv<>rllM>il in flif lonil iii'\vh|iii|ht of lln' IhI Itcffmhir |H7n, km iiitciitiDii tii tin- :tt(| .lainiiirv, IN7I, ivixl ill tliu (iuvtriiiiu'tit (lii/t'ttv of tlm '.Hli DtttfinlNT, Ih7(I, ud intcntioii to Ni-ll on tliti lOtli Jaiiiiitry, 1^71. 'I'lx- alifrilT hoM nu tlic lOlli, uiiii uii till- 3lNt .liiiiimry i>xi>ciitiMl a trniiNfiT to tlu' iinnliiiHi-r. Ill-Ill, tliHt MiiliMtniitiiilly tli<-ri- Inul Im-i-ii a i'oiii|iliiiiifi> .vitli tint Act, 11) Vic. No. I'.I, >-. I7ti, mi'l »|i|>l><°ntir.ii to r tranHfiT Kraiit«>il. I>iit witlioct ili-iirivinir liiiii Uf IiIn COHtM. HiiiiiinoiiH muh'V tlu* " TijiiiMft'i* of Lainl Sf^itiit*'." Sit. l^to ; culling iipoii tli(> HruiHtiai'CciK'i'iil to h1i(>w cjiuso why Koss Hlionld not he I'c^iHiciMMl uh tlio (»\vim'I' of laiul lu'ur lU'lfast. Tin* roaHonw ;jlv«'u foi* not roKlHtcilnji tlu' applirani woi-o .ih followH : — " Tu'orj^f Nahh'r >vsih, oii llio 24tli Xovt'inbor, ISTO, the i't»f;lHt»'i'o(l proprit'tof of frroliold lnni'. 10(5 of tho 'Ti-.insfor of I.j»nd Statute,' Hpccifyinj; hucIi Crown aUotniont as tlu* bind Houj?lit tobo jitTocti'd by Htich writ, and tho nsual ontry wan thorcnipon made in tho rojfistor book. On tho .'list Jannaiy, 1S71, a written tranHfer, dated the 10th day of tlie same month by tlie Hheriff of the Belfast circnit district, to Duncan Munro Koas, of all Xalder's estate in such land, was pn;- sented ffu* refjistrntion, which transfer purports to be on a sale under the said writ, in consideration of £51. A sjilo of the land was advertised in the rfovernment Ga/.ette of the fMh I)e«'eniber, 1S70, to take ['ll] place at tho i'aledonian Hotel, Itelfast, on 10th January, 1M71, and kX PMtTK ho.XM.h Mr Mm tioSM. 266 WilM IllStl illlv« I'tiMt lfl|Ml (i;|/i'tlc of till* ImI hcrfliilHT, |S70, II |if\VH|»)l|M>i' rllTiiltililiK III III)' IH'i^'li ImmiI'ImmmI of tlii* ImimI, to l)ikt> |ilii)-c ut tlU' Miiliir liotrl on :ti'4l •liiiiiitiry, isTl. Till' tniiiMfn- to Uuhm Iium Im'imi i*cfiiM«>«|iilMiiiuti on tlliM Itclllllf, IIIkI |MII'Slltlllt lO lilt' l-'trilll KM'tion of t||*> 'TninMfci' of LiiimI Kiatiilc,' tli" following \n Htntrd hh tll«- ^'lolllMi of Kitrli icfilHill I'-Thllt tile Hillf, not IlilvillK hvtn jIiiI.v jnlvrilis«4l, \h \u>U\ ; lU VU: No. !!>, Hrv. ITU : Iti'Mvun V. riiiidwlrk.' ".I. rjiftor, <'oiiiiiilMMion«'r of TIflcM." T. ii'ltctkfit for tli«> n-jflslnii' : - Tin- |(Io|m'|- tulvci'liHr- inu of a Hiiic of laiiil is a coiKlilioii picliiiiinary (o tlio sale, aii«I tlic laiMl iiitiHt hr indpcrlv Hold before tlif ii-kIm- liar <'vi«lcii()> that rvcrylliiii); 4lon«> prior to It \\t\H regular. [Stawdl, <'..!. — The iiiontirH iiotl«M' of Hiih' r(M|iilr('(I by tin* Art Ih only to pn-vi'iit a IniHty Hjib'.] Tlu' Art rtMpiircx tln' nollri' t<» be j^lvcn In two ii('\VK|>ap<>rH. Here it in only ^Ivon in oiu>, bccaUKf tli«' iioti«'«' in tin* Ili'IfaHt (Jazctlc waH not t'onvct, it 'iicntioniiiK tli(> Hal<> as on tli(> '.\n\ .lanuary, wlicrcaH it tli(! not talv(> plan' till tlM> llUli. In Itcavcn v. (Mnulwirk,' a Half took place after due iioticf, but th<> bailllT wan bc^iiib'd fr«»iii tin* plan* by tin* purcliaHcr, who n'fuwcd to coniplctc tli<' transaction, and the baililT held a fresh sale the sanit' day to another person. The Court wan then of opinion that the second sale wuh regular, but here no Hutll ; such condition, if inserted, is ineffectual. Summons to the Registrar of Titles, to substantiate and uphold the grounds of his refusal to register John Bond as proprietor of certain land. The statement of the registrar was that one Godfrey" was registered pro- prietor of a lease dated 1st December, 1879, from the Trown to him, his executors, administrators and ap- proved assigns, for seven years, which lease contained the following clause : — " Provided further, and thes-^ presents are upon this express condition, that no assignment or transfer, whi'tlier .TOR.CAS.— 17 w 25S TORRENS CASES. !■'■> ill -i i ■3 1 i a I- by oiK^ration of law or othenvlso, of the^e picHents oi- other instnimt'nt affectlnj; the premises litMThy dcuiisied, shall have any effect or validity whatso ver unless and until the Governor, j'oting by and with the advice of the Executive Council, sanction the same, and further until the same be registered in the office of Crown Lands ; and all such instruments as afores.iid sliall have and take priority not according to their respective dates, but according to the priority of the registration thereof." On 22nd March, 1880, a copy writ of fl. fa. against the lessee, at tlie suit of the Colonial Bank, accompanied by a statement specifying this lease as sought to be affected, was served upon tlie Registrar of Titles, and by hiin duly entered as required by the " Transfer of Land Statute " (No. 301), Sec. 106, On 15th April, a copy fl. fa. against the lessee, at the suit of Bond, similiarly accompanied, was served upon the registrar, and entered. On 6th May, a transfer from the sheriff, in pursuance of the fl. fa. of the bank, was lodged for registration and registered. On 10th May, a transfer from the sheriff to Bond, in pur- suance [*459] of his fl. fa., was lodged with the registrar, who refused to register it. The grounds of the regis- trar's refusal were : (1) That it is the duty of the Regis- trar of Titles to register instruments in the order in which they are lodged with him for registration. (2) That the special clause in the lease referred to does not relate to or affect the registration of instruments under the *' Transfer of Land Statu ce." An affidavit, flled on behalf of the applicant. Bond, stated that, in the year 1879, Bond recovered judgment against Godfrey for £600, and issued execution on 181h November of that year. On 4th April, 1880, Bond ob- tained the necessary sanction of the Governor-in-Council to the registration of his fl. fa. at the Crown Lands office, and this sanction was endorsed upon the copy writ lodged by him with the registrar on 15th April. On 6th April, the sheriff sold under Bond's writ. On 27th April, Bond obtained the sanction of the Governor-in-Council to registration of a transfer under the sale in pursuance of that writ, and such sanction was endorsed upon the I EX PAltTi: BUND. 259 transfer lodged bv him on 10th May. The sale under the bank'B li. fa. was on l.'Jth April, and the ganction of the Governor-in-Council to refiistration of such writ at the Crown Lands ollioe was obtained on 20th April — the sanction to the transfer under the sale in jmrsuance of such writ being obtained on 25th May.^ Holroyd, Q.C., for the registrar : — Under Sec. 100, the transfer flrst registered takes the title, the land then no longer remains registered in the name of the execution debtor. The second transfer could .not be registered for any purpose ; it would be con [*400] trary to the whole policy of the Act to have two transferees registered at the same time in respect of the same Ittnd : Registrar of Titles V. Paterson (2 App. Cas. 110 ; 46 L. J. (P.C.) 21). [Stawell, C.J. — The complaint is that the present applicjint is, by the refusal of the registrar," completely precluded from contesting the question before any com- petent Court.] Sees. 144-6 prevent any injustice result- ing ; they provide for compensation to any one who is shut out of his rights. The registrar has nothing to do with the proviso in the lease ; that is entirely inter partes, between the landlord and tenant, and is, more- over, invalid. Landlord and tenant cannot make a valid direct covenant that there shall be no assignment with- out sanction during the tenn ; though a covenant may be framed to accomplish the object, by forfeiting the 1 The following table shows the dates of all the various dealings, in ohrouoloi-'ical order : — 22nd March — Copj' Bank's fi. fa. lodged with Registrar. 4th April — Sanction of Governor-in-C'onncil to registration (»f Bank's fi. fa. 6th April — Sheriff sold under Bond's fi. fa. 13th April— SheriflF sold under Bank's fi. fa. 15th April— Copy Bond's fi. fa. lodged with Registrar. 20th April— Sanction of Governor-in-Council to registration of Bank's fi. fa. 6th May— Transfer from Sheriff under Bank's fi. fa. lodged with Registrar, and registered. 10th May — Transfer from Sheriff under Bond's fi. fa., with sanc- tion of Governor-in-Council endorsed, lodged with Regis- trar, and registration refused. 25th May — Sanction of Governor-in-Council to transfer under Bank's fi fa. h''; ':?!'■ 260 TOHHENS CASES. t<'nnnt'M interest upon an nnautliorisod asBij^nnicnt. They ♦•annot stipulate that, in case of the insolvency of the ten- ant, his assijjnee shall not take, thouj^h the lease niijjlit be made detierniinable ou the insolveiu*y. This point was not decided in ex parte Ellison,^ where the lease did not p\u'j)ort to exclude an assignment by operation of law. Nor dofs ''Tlie Land Act, 18(>1) " (No. :{(>()), authorise the insertion of such a proviso in a lease granted under it. a'Beckett, for the applicant, in support of the sum- mons : — In Ex parte Ellison,^ the Court did not decide that the rej^istrar is not concerned with the condition of the lease, but merely that he had mistaken its effect ; it seemed to be of opinion that he should rejjister the transferee's title as subject to the same conditions. He must take notice of the conditions of a Crown lease — the conditions and limitations of the grant in fact — and, if he finds that a condition has been broken or not complied with, he must not register the transfer. This is not a case of ordinary lease under ''The Land Act, 1809." Sec. 15 of "The Transfer of Land Statute " (No. 301), enacts that thenceforth grants in fee or for years, of Crown lands, shall be registered, and that the registration shall be taken to be an enrolment of record of the grant. Sec. 49 provides that the land included in any certificate of title or registered instrument shall be [*4G1] deemed to be subject to the conditions contained in the grant thereof. It is not the duty of the registrar to inquire into the validity of any condition in the grant, unless it be clearly inconsistent with some other condition in it. He has to deal with the registered title as he finds it, subject to all its conditions ; if they are intelligibly expressed, he must give effect to them. It is submitted that the registrar was wrong in registering the transfer first lodged with him, it not being in conformity with the conditions of the lease ; and he was also wrong (notwith- standing this registration) in not registering the trans- fer after^vards lodged by the pi-esent applicant, which did conform to such eonditioins. The Privy Council, in Paterson's ca«e, did not decide that the second 2 5 V. L R. L. 59. EX PARTE nOND. 201 transfer could not liav«» Imh'H r('^iHf«M'('d, if tlu» s«l«» nn(l«M' the aliiis writ had Ihmmi etTi'i-tual. Set*. ;{7 Hccnis to contcniplatc the r^f^isti-ation of more than one titU» at once vah'at (luantuni ; for it presciibes that every instrtiinent prenented for re;^iwtration shall be registered in the order and as from the time it is produced for that puri)ose. If several writs of fi. fa. are registered, a sale under each may be registered ; the registrar is not to detciniine their priority, at that stage at any rate. No confusion would be occasioned, because all after the first would be noted as subject to all rights under the pre- ceding ones. No caveat could have been lodged against the registration of the other transfer. TlKM'e is now no question whether the condition in question is one to the insertion of which in tlie lease the lessee could not have been compelled to submit. This being a Crown lease, we do "*>* start with the fee simple , in anyone, as in the case of a i)rivate title ; we start with a limited estate, created by Act of Parliament. Sec. 110 of " The Land Act, 18G9 " (No. 300) authorises the Gov- ernor to make rules and regulations, prescribing the form of leases issued under it, and the conditions upon Avhich the same shall be issued, and for more fully carry- ing out the objects and purposes, and guarding against evasions and violations of the Act. One main object of the Act was to prevent any alienation within a certain time, and this condition is in pursuance of that object. In carrying out such object, the regulations may effectu- ally prescribe a covenant not mentioned in the Act : Kettle V. The Queen » [*4()2]. Holroyd in reply : — It 's unnecessary to argue that two transfers could not be on the register at the same time. Sees. 34-43 of Act No. 301 show that when land Is transferred to a new proprietor, there is an entirely new utart in the title ; the old proprietor is done with. Sec. 37 does not contemplate more than one transfer on the register at the same time ; the instruments it refers to are mortgages and other charges, of which any number may be registered without confusing the title. Sec. 49 »3W. W. &a-B. E. 141. ! .' 202 TORRE XS CASES. do<>H nut suh.jcct tlh' land to invalid conditionH in l;ho pant, and the ivaKon for itH Htatin^ that tlio land Hhall be Hiibjcct to tlu' ronditious, ct*-., in the grant, iH that nothinji' of the kind in noted upon oi* in the certiflfnti' of title ; it in not intended \o give validity to conditions imposed nnder a 8ul)8e<|nent Act. See. 110 of Act No. 3r.O does not authorise regulations for inserting conditions in a lease which are not prescribed by Sec. 1'02. Cur. adv. vult. Stawell, C.J. — The registrar has assigned two rea- 80 'IS for his refusal to register Bond's transfer. One, that it was his duty to r<*gister instruments in the order in which they are lodged with him for registration ; and us an al>stract proposition that may be so ; but it is not his only duty : the other, that a special clause in the lease did not affect the transfer of an instrument under the " Transfer of Land Statut<'.'' If by this he meant that the special clause was void, it is quite correct. He has given a reason for what he did, namely, that he has per- formed his duty of investigating the law, and arrived at a conclusion that the clause was, in his opinion, void, liut if he meant that this second reason was only sub- sidiary to and supporting the flr.st,and that lie was simply to accept all instruments in the order in which thej' were lodged, without reference as to whether they were valid instruments or not, he was, I venture to think, in error, and it is only right that he should be put in possession of the views of the Court on the point. The judicial duty is imposed on him of examining into the validity of instruments presented to him for registration. He is to investigate tliem and all the facts [*403] presented to him and say whether such instruments are valid or not. That appears to be the necessary conclusion from the 132nd and 135th sections of the Act. Sec. 132 prescribes the mode by which a certificate of title issued " in error " may be withdrawn. What is the meaning of " error ? " Not, in my opinion, a mistake of fact only, but also an "rror in law. That section contains the expressions "issued in error or contains any misdescription of land or boundaries." And Sec. 135 provides that if the registrar ir«^i EX PARTE BOND. 2(i3 ri'fiiHe t«) rojj;lHt<*r ho may be compelled to n8Hip;n reasons ; that is reasons in law as well as in fact. If merely the mechanical duty of re^'isteiinjf instruments valid or in- valid were imiiosed on him, the latter section would be scarcely necessary. This view of that section is con- firmed by the decision of the Privy ( 'ouncil in Registrar of Tith's V. I'aterson/ where the (|uestion was asked, why did not tlu* re'jistrar appeal ? evidently showing that in the opinion of their Lordships the responsibility was cast on him of preventing instruments being regis- tered which in law, as well as in fact, ought not to be placed on the register. Tlie intention of the Legislature was obviously to impose this duty on him in the first instance. The registrar is constituted the authority, sub- ject to an appeal against his decision, to determine the validity of tlie instrument as well as the priority of regis- ta-ation in point of time ; and, except in certain special cases, he is allowed his costs. He has, therefore, to dis- charge not merely ministerial but judicial duties. If he decide erroneously there is an appeal to this Court, and ultimately to the highest appellate tribunal. It may be that better provision could be advanrageously made by bringing both parties claiming the land together, and allowing them to litigate between themselves ; but that is no reason for disturbing the construction of the sta- tute as it is at present framed. In support of the validity of the instrument first regis- tered, it was urged that the registrar was right in regis- tering it ; that the land was talien under a judgment, the lessee's estate sold and passed to the purchaser by operation of law, and the purchaser was entitled to a cer- tificate of title ; and that the clause in the lease prohi- biting assignments by operation of law was void, ['ir^] '* Tlie Land Act, 1869," Sec. 110, gives power to the Governor-in-Council to make regulations for the purposes theretofore mentioned, and for the execution of all mat- ters arising out of, not inconsistent with, and not pro- vided for by the Act. Sec. 20, which provides for condi- tions being inserted in the lease, never intended that such a clause should be inserted ; and thus, apart alto- * 2 App. Cas. 110. ^r A- i ■ ■J ;: ;i a^ 264 TUJlJtEIfH CANES. ^<>tii('i' from tlic (lucstioi) of nltia vitcs um to the fnituiiiK of tlic nilt'M, the provision \h In direct anliii;«n»isiu t(» the Htatnlo ilHi'lf. The i>oIic.v and intention of tlu' Le^iJHlu tnre, iH shown in I'litrinoirH nisc ; iit tlM> Hiiini> tinir, I think that till' fnuiM'is of the "TninMft'i' of Land Htatntc" oHition. 1 liavo no doubt, howcvor, that the icyiistrar han the power, and that it is ills duty, on tlu* first appliration, to dccid.- wln'thrr tlic appli<'ant is t'ntllh'd to registration. Il Is laucli to 1)1' rcj^relted tliat tlio Act slionld leave so nun-h defective as to determining; disputes of tliis l\ind under it. I tliink it would have heen much l)etter to !)rln:: the adverse claimants face to face to litigate tlu' title b.-- tween them, after the numner of interpleader proceed- ings. With his di'cision in this case I quite concur. I tliink llu' re^^istiar was ri^ht in refusing to register the sec(md transfer, as Icmjj as the first renmined on the rejjister. I agree also with the view that the clause in the leasi^ is inoi»erative, and for two reasons, about wliich I have no doubt. The regulation is ultra vires : it is not in the Act ; it is a mere departmental regulation, which can derive no authority except from the Act. I feel equally clear that if the regulation were valid, it fails to carry out what is said to be contemplated. It is plain to any lawyer that such language as this in the lease means nothing. There are means, invented by conveyancers, of determining a lease in certain events. There are ques- tions whether a lease is void or only voidal)le — that is, as between the landlord and tenant. The present case is between two conllicting tenants. If it means to render the lease void on an assignuu'ut, that intention has not been expressed in intelligible legal language. It is an inartificial attempt to restrict a power of alienation, which the law says cannot ))e restricted, and is repug- nant to the grant. Higinbotham, J. — It was the Intention of the fiani- ers of " The Land Act, 18(J5)," to draw a distinction be- tween licensees and lessees. The Act places every poss- ible obstruction in the way of the licensee parting with his interest. It is equally clear that it was the inten- tion of the Legislature to grant to the lessee, [*i(50] after he became lessee, facilities for alienation which the Act T "fi—w- 2(>(i TOJlIitNH CASUS. rii(l«'ii\oiii'H to \Nifliliold fi'oiii tli»* lin-MHiM'. Am ln'twiTii landlunl iiiiil (« iiniil, tlic rniwn would liiivf pown* to iiiakt* a roiiditioii in tiic h'HHt' ap;ainHt aliciialiiiK l>v tlir tctiaiil. iSiit for tlH' iMU'iMisc of pffvctiliii^ ali«-iiatioii hy o|M'iatl ctTrctcd would Im> to make tli- «>Htati' (U'fcaHildc (»n ('ct'tain cvriitH all'cctiii); the i'ip;ht tti tlu> laud, by iu<'aiiH of homic actH ariHin^ from tho o|i(>ra- tion of Itiw. Ah between landlord and tciuint, ' condi tioii of this kind rould nut b(> nuido ho an to be t'trcctiuil by drtlarinn; thjit no trannfcr or aHsijrnnicnt by oporn- tlou of law should b(> effectual till the couHent of third parlies was ol>taineistrar to exercise a judicial oi»iHiou upon the validity of this proviso ; b»'iny invalitl, he could not };ive effect to it. He has in ettect disre- }:;arded it. and has re;i;istered the ])arty who lodged his tiansfer from the sheritf before the present applicant obtained the san*. iiNHltriinuMitM, <'iiiivi>,vnii<'<'N, ri>-i'iiii- vcyaix'fH, uiortk'iiUi'M, tniiiNt'crN of iiMii-ti.'iiui'M. tniiiMfcrH, IciiHfM, Miirrt'iiilcrM of litiHfN, rovfii iiitH, iittri'ctiiciitH, roiitriK-tM, iiii'inoriiiU (or ri'({iiitratioim, Ixiiids, MiibiiUMMioiiM to Hrhitrittion, ii|i|ilu'ntioii*, llotirCM, iIcIIIIIIIiIn, CIIVl'lltH liml otlllM* dl't'llM, tloCUIIIIIItM iiiul IINNIir- Kiici'M, wlii'tluT iiiitclt' iiiMlrr or luiviii^ rt-ffrt'iicc fo tliu • 'I'niMMr'fr of l/tiiul Htiitutf ' nf Vicfmiii or ' Heiil l'ro|i»'rty A't ' of Ni-w Hoiith Wiili-M or not, of otlirr Stuluto or Ad la tlio miiil coluiilfH iim tlio (iixc iiiny r»'<|ulr«'." Ili'lil, that tliiM ilid hot aiitlioriM)' t)u> <>\iTiitioii tiy tho nttorn*>y of n crfiitioii of t aMciiit'iit iiixl-r tli4> '"rraiiNfcr of Ir«> hi> iia*l ixfciitfil Hinh l^'J.'tll nti iiiHtriitiH'tit, iiiaMtiitith IIM it piirporttMl to traiiMf<>r ninl Kraut an iiH-or|iori'al h4>r)>tlitaiiioiit, it wiiK an " iiiMM'iiiiD-iit purporting to iilTt'it lanil " wiliiiu the luniu- JMK fif H<'<'. .'1(1 of the Act. aui'tiou th)> Krnuti'*', in th*> a>m*»ir)> of fraud, Ix'i'auic tiio r<'KiMti>ri>«l prnprif'tor of tht- enHfincnt of riyiit, f>f wav mentjoiu'd in tim iristrii- Mit'iit iiml r(ii4liiitt. lit III*' liiiii* of till* nil •).'f(l nils of tn'NpaHM, lull! I'litci'til «»ii flit' liiiiil ruliiiivfil Imowii, uihI liiiil III cxrrrlMf of IiIm riKlH of wiiv. l>i'oUt> In, diiwii uiid MMxn.Ml n ^nti' iiml fciit <• wlilrli nlmlntrtcd his iMiMMnv)*. il.v tli«' I'fplv till' plntiitlfr nll«';:«'<| tluit the ItiMtniiiiciit of cffnilon of rnHiiiHiii wuh not innaH(>- iiu'iit. [•-.')7) Till* (Iffi'tulnnt iiK to tin* ifpjy jolnn! Issue, Till* iiiHtniiiifiit of cri'iitioii of ensciiieiit, wliicli uns duly n'^'istofi'd on the I'Ttli Aii^'iist. issii, wiim in fart executed liy Kicliaid Andei-son as the nttoniey under power «»f Kdwnrd Keep, under n power of nttorney dated l.'Mli Feliriinry. iss.'. wliieli ap|>ointed liliii Kecp'K at- torney, to demand, receive and recover all principal, interest and other inonieK then due and owinj,': or pay aMe, or which nii^ht from time to time lieconie due, owin;; or payable under or 8eriired or intended ti) be Heciired by any mortpij^e or niortpip'H or other Hei'iirity or Hecnrities, oVer any real or personal property, already executed or hereafter execnt«'d or on deposit receipts or Himple contract or ne;iotiable securitii's : Aum V, lio.SALI). S60 «niiiitM, tiuitTiiinitH, rotilnirtM, iiifiiiufiiilM for rf^iit- tnilioii, IioiiiIh, MiilMiiUHioiis to iii'lillnition, a|>|»lii'iitloiiH, l|Oli('«'H, tlclllJllMU, rilVi'illH mill otlltT ||«')m|m, (lonilllflllM, mill iiHMuniiirfM, w lii-ilit'i- iiiixli' iiikIi'I' oi* litiviii^ i'.'f«M'- ••iir«» lo III*' •Triiiisfci- of Lmid Shiliih'* of Vlrtorlii or ' K»*iil Propi'il.v Art' of Now Soiiili W'lih'K oi- not, or otJKM- Kliitiitc or Act 111 the muuI roloiiirM iim llif riiMi* iiiiiy ir»|Uir»'." ii'lteckrit, .1., iit the tiiiil, iTHfrvrd tor Full Court till' i|iti>HiionH of till* roiixtriirtioii of tin* |io>vi>r of nttor' iH'v. anil Ihi' I'tViM t of tlio ri'KiKtratlon unilcr tin* " Tratix fi'i' of Land Statiiti'" of tin iusfnimi'nt ixiTUti'd unili'r it. anil llio rase now r.iiiii' on upon tin* ipii'stioiiH ro- Hirvt'il. ('. A. Sniylli anil Itox for ilh- plaint ilV :— Tin* llr«t ipii'Htion Ih wlirtliiM* Anili't'Hon hail powiM* to ^rant tin* rasiMiiont, anil tlio HiMonil i^ wlirtlifr if he had no powor tin* ri'^istration of it ran havt' any I'tfi-it. Thi* |N>wi'r of iittornr.v did not p;ivi> any power to AndriHon to dnil vvitli realty lirlon^in^' to his prinripal ; and if it did not, he had no power to neate tliis easement. The registration of an easement by wliieh ["L'-'SJ one man professes anthorlsedly to ronvey away the land of another ran have no elTeit. A ditTerent ipieslion inlnht arise If the eertlfleate had been issued ; but in this ease it has not. .M<'re registration of an Invalid document could 1,'ive it no effect : Kx |i. I'.ond.' If the certificate had been Issued in error, it mijjhf be called in by the ri'uistrar, under the Act, lo be cancelled. The a^eiit had no power under the power of attorney and the re^'isfra- fion does not jkish the interest; if it did it would be equi- valent to the issue of a certificate, and it is not so: Kick- liMiii V. The Queen.- The rejjistration cannot be conclu- sive because, under the " Transfer of Land Statute " (No. ■'>(>1), the registrar may cancel the rej;istration. See note to See. :',(; in a'Ueckett's "Transfer of Land Statute*' (2nd Ed.). The commencintj: words of See. 42, providing;- • C V. L. R. L. \{)± •^8 V. L. R. Eq. 1. i \ n 1 270 TonRKNS CASES. that '* no ipstniiut'iit," which b.v Sec. -t included crea- tion of easement, "until i'e<{iHtration in manner herein provided shall be efl'ectual to pass any estate or interest in an.v land under the opci-.tion of this Act," show tlint the operation of the passing of the instrument Is merely suspended until it is registered ; but the mere registra- tion of any document would not give it effect. Neighbour and Hodges for the defendant : — A per- son registered under the Act is the proprietor of the estate until the registration is annulled. Sec. 'M\ pro- vides that any instrument purporting to affect land under the operation of the Act sluill be deemed to be registered when a meiorial has been entered in the register book, and the p'U'son named in any grant, cer- titicate of title or instrument so registered as the grantee or proprietor shall be deemed and taken to be the registered proprietor thereof. The defendant has lodged the instrument of creation in the office, and u memorial of it has been endorsed on the back of the certificate operated upon by it. He is therefore to be deemed the proprietor, and under Sec. 43 is entitled to receive a certificate of title to the same. One of the main objects of the Act was to make everything depend on registration. Keep himself could not come to tht- Court with this endorsement on his certificate, and dis- pute our right to the easement ; he must first get [*2o!)] the certificate rectified. By Sec. 49 Keep holds the land subject to the encumbrance notified on the certificate, which is conclusive, except in the case of fraud. It might have been a different matter between Keep and the present defendant, as in Miller v. Moresey.^ lu ''x. p. Bond the matter was brought up on an applicu- Uon from the Registrar of Titles to the Court, not on a mere action of trespass as here. It is sufficient for the person relying on the power of attorney to show that the act done under it was within the four corners of the deed. And the words are sufficiently wide to cover this case. 3 2 V. R. L. 193 ; 2 A. J. A. 115. MAOOIi i\ DONALD. 271 Smyth in rejily : — Tlu'ie is always a HptH-itic clansf in powers of attorney where it is intended to give the power of 'conveying hinds, as under tlie form used under the "Transfer of Land Statue," schedule \\\. Se<^s. :'.(; and 49 of the Act do not make registration as effectual as a certificate of title, as the defendant's argument, if good, would make it. The term "instrument" in Sec. 'M\ means a signed instrument, and the instrument must be signed by the person having power to sign. Cur. adv. vult. Higinbotham, C.J., delivered the judgment of the Court [Higinbotham, C.J., Williams and a'Beckett, JJ.] — Two questions have been reserved for the Full Court by the learned Judge who tried this action. The first question relates to the construction of the power of attorney by Edward Keep to Richard Anderson, ex- ecuted on the 13th February, 188.J. We are of opinion that Kichard Anderson had not authority derived from this power to sign, as the attorney of Edward Keep, the instrument dated the 18th day of August, 188ti, purport- ing to be a transfer and grant of an easement or right of way to the defendant Peter Donald. The second question relates to the effect of the registration under the "Transfer of Land Act'' on 27th August, 188(;, of the instrument above mentioned dated 18th August, 1S8G. We are of opinion that this instrument, purporting to transfer and grant an incorporeal [*200] heredita- ment, is an instrument purporting to att'ect land under the operation of the Act, within the meaning of the Act (see Sec. 4 " land " and " proprietor "), and that upon registration of the said instrument in the manner prescribed by Sec. 3G, and in the absence of fraud, the defendant Peter Donald became, by virtue of Sees. 36 and 49, the duly registered proprietor under the Act of the easement of right of way mentioned in the instru- ment, and entitled to exercise the rights of such regis- tered proprif or. a'Beckett, J., then gave judgment on the whole case as follows : — In this case the plaintiflf, by her statement .f«i ■■J •; 272 TORRENS CASES. \ of claiiii, <'i)ini»lain(*d of a trcspasH by the defendant upou land coloured brown in lier certificate of title over which slie had a rij^ht of Avay, and of the destrnction of buildinjiH, fences, i)lantH, etc., on this brown area. The defendant, in his defence, allejjed that he had a rifjht of way l»y grant from the rej^istered proprietor over the land coloured brown which the plaintiff's buildinf?s ob- structed, and that the trespass complained of was merely the removal of these obstructions. The plaintitf replied denyinji; that the defendant had the grant of the right of way in respect of which he ent(»red. I reserved for the Full Court the (piestion of Avhether the grant of right of way under which the defendant had justilied was or Avas not valid, and its A'alidity having been af- firmed I should merely have had to direct judgment to be entered for the defendant with costs, if the plead- ings had been confined to the matters I have mentioned, Hut new matter is introduced by the reply which alleges that the tresjiasses in the statement of claim mentioned were committed not only upon, but also out of, the land coloured brown, and at other parts of the land mentioned in the statement of claim, and for other pur- poses and on other occasions than those mentioned in the defence. The defendant joins issue on the reply gen- erally, and there is therefore a contest on the pleadings as to whether there was or was not a trespass upon land other than the land coloured brown. It appeared on the evidence that the fence of the plaintiff's land did not exactly coincide with the boundary of the land as de- scribed in her certificate of title, but diverged as it ap- proached the right of way, so that she was not occui)y- ing all [*2G1] the space to which she was entitled, and part of this excluded space was in fact included in what both parties treated as the disputed territory at the time of the trespass. On this small piece of land some snmll piecf? of the trellis or woodwork stood which the defen- dant removed. It was not contended for the plaintiff that the removal of the almost worthless material from this small piece of ground entitled the plaintiff to sub- stantial damages, and no such contention could have MAOOR V. DONALD. 273 been »u8tuiued. It was urged, howover, that with regard to costs, the question apparently trivial was material, and that the defendant who had inconsiderately and suddenly asserted his rights should be strictly dealt with as to any unjustifiable act committed in asserting them. If no additional cost had been occasioned by this minor question, I should have hesitated to deprive the defendant of costs because he had committed an inci- dental trespass of this slight character, but the issue is distinctly raised, and the evidence of surveyors, which might otherwise have been dispensed with, has been given in relation to it. The plaintiff succeeds on it. I therefore direct judgment to be entered for the plaintiff, with £1 damages. As to costs, I order the plaintiff to pay the costs of and occasioned by the reservation of the questions which have been determined by the Full Court, and I leave the plaintiff and defendant to abide all other costs of the action. Judgment for the plaintiff with £1 damages for the trespass committed by the defendant ; the defendant to have from the plaintiff the costs of questions reserved for the Full Court, the plaintiff and defendant each to abide his and her own costs otherwise. Solicitor for plaintiff : — Hopkins. Solicitors for defendant : — Maddock & Johnson. Supreme Court, Victoria, 1885.] [11 V. L. R. 780. In re " THE TRANSFER OF LAND STATUTE " (No. 301), Ex PARTE DAVIES and INMAN. " Transfer of Land Statute " {No. 301), s. 117— Caveat— Ebiht to summons caveator — Unretjistered transferee — Supreme Court Rules, 1884 — Ord. LXIIL, r. 2^^ — Practice — Ur 274 TOnniiXS CA.SK.S. 1884, with a matter otherwise required to be deterininec] by the 1 r.!l Court, considered it a matter of ur»;ency and so had jurisdiction. Apiwal from an order of Williams, J. The appellant, M. H. Davies, was the purchaser and transferee of certain land at Footsci-ay held under the '* Transfer of Land [•781] Statute " (No. 301). The land was rejjistered in the name of W. H. Roberts, as proprie- tor. Roberts had sold to H. T. Clarton, who afterwards sold to Davis, to whom Roberts, at Clarton's direction, executed a transfer on !)th July, 1885. In the meantime, and after the sale by Roberts, a caveat was lodjjed on behalf of the respondent, Mrs. Inman and others, ellnnt here has EX PAIITE DA VIES AND lyAlAX. 275 done. The aiipelUint applies to be reji^istered us the pro- prietor by virtue of his transfer from the registered pro- prietor, and in the oi-dinary meaning of the woi*ds used in Sec. 117, he is, as sueli applicant, entitled to take out a summons. Hodges, for the respondent : — The appellant must show that he comes within the words " such applicant or proprietor '' in Sec. 117. It is admitted that he is not a " propiietor." Is he then " such [*7^'2] applicant ?" It is submitted tlmt he is not. Tlu^ section clearly refers by tho words '' such api)li('ant " to the person de- scribed in the beginninj^ of the section as a person ajjjainst whose application to l)e rej^istered as proprietor a caveat had been lodged, and who is entitled by the sec- tion to be notified by the registrar of such caveat. Now an unregi.stered transferee is not intended by tlie statute to be notified of said caveat, and there are no provisions requiring any such notification to him. There are cer- tain i)erson8, not registered proprietors, for whom the statute specially provides tliat they may malce application to become registered. Such ai**? devisees or persons with power to appoint on a transmission (Sec. 52) ; persons entitled in remainder or otherwise in a transmission (Sec. 54) ; the assignee of an insolvent (Sec. 107). These are the persons intended to be referred to as "appli- cants," as they are the only persons not being the regis tered proprietor who can make any application to be registered. The appellant, therefore, as not being an applicant, nor a person entitled to be notified by the registrar of the caveat, is not entitled to proceed under Sec. 117, and his summons was therefore properly dis- missed. There was another ground for dismissing the sum- mons, though it was not necessary to consider it at the time. Sec. 10 (vii.) of " The/ Judicaitui-e Act, 188a " (No. 761), provides that all proceedings upon or connected with caveats under the "Transfer of Land Statute" shall be heard and determined by( the Full Court. Thei-e is nothing to show that this matter was one requiring im- mediately to be dealt with. r^ 276 TORRE SS CASES. m n'lU'ckett, in ri'plv '- — ^^ '^^ trnusferoe cannot ai)i>l.v to be icj^iHtered he is placod in a very disadvantageous position. How can a pni<'liasei- at a sborlff's sale be oonie legisterod at all ? [Ilolro.vd, J. — Sec. 100 spocially provides for such a case.] The right to get the caveat removed is not depen- dent upon receiving a notice from the registrar. There is nothing to niakt' that a necessary preli'.ninary. If a transferee can liimself do nothing to remove a caveat he is at the mercy of a vendor who may sell and trans- fer to him when no caveat is lodged, and then [*783] refuse to take any steps to get rid of such a caveat lodged / luently. The objection to the jurisdiction is met Ji- . 19 of ''The Judicature Act, 1883" (Xo. 7G1), and Rule 2* of Older Ixlii. of the Supreme Court Rules, LSS4, enalijing a Judge of the Court to hear at all times all siicii apU'icati(>ns as may require to be promptly beard. This gives power to a single Judge to deal with any matter otherwise required to be dealt with by the Full Court only, if he thinks it a matter of urgency: re "Transfer of Land Statute," Ex p. Peck.^ It is to be presumed that there was some reason for promptly deal- ing with this matter. Cur. adv. vult. Tlie judgment of the Court (Higinbotliam, Holroyd and Cope, JJ.) was delivered by Higiubotham, J. : — This is an appeal from an order of Mr. Justice Wil- liams dismissing a summons taken out by Mr. Davies, calling on the caveator, Mrs. Inman, to show cause why a caveat lodged by her on 22nd April, 1885, forbidding the registration of any person as transferee or proprietor, and of any instrument affecting the estate or interest in certain land, should not be removed. Davies claimed under a transfer, not registered, made in his favour on 9th July, 1885, by one Roberts. Tlie learned Judge appears to have held that Davies was 1 10 V. L. R. (L.) 328. EX PARTE DAVIES AND INMAN. Ttl neither nii "nppllcnnt" nor a " iu'oi»rietoi' " within Ser. 117 of tlie '^TrnnHfer of Lanul Statute" (No. 301), and that he waH not entitled therefore to Hummon the cavea- tor with a view to the removal of tlie caveat. We are of opinion that the learned Judge was right in 80 deciding. It was conceded that Davies was not the '* proprietor " of the land in question ; but counsel for the appellant contended that he was "such applicant" within the meaning of the section. The statute contains no y'<*neral provision as to who shall bo entitled in the case of a transfer bv act of party of land brought under the operation of the Act to apply for the registration of a transfer. Until the transfer is registered, the estate and interest, Avith all apimrtenant rights, powers and pri\ileges, remains in [*784] the registered propiietor, Sec. 'i'^. Special provisions are made authorising devi sees and others claiming a power to appoint on a trans- mission, Sec. 52 ; persons entitled in remainder, rever- sion, or otherwise on a transmission. Sec. 54 ; and the assignee of an insolvent, Sec. 107, to make application in writing to be registered as the proprietor. It is only to tliosa persons that the power to "make application in writing to be registered as proprietor" is given by express words, and it is to them only that this form of expression is applied in the Act. We think that, except in these cases, and in the additional case of a sale under a writ of fi. fa. issued out of the Supreme Court, Sec. lOG, applications for registration must be regarded as applications made hy the registered proprietor, and that an unregistered transferee is not entitled, under Sec. 117, to be notified of the caveat by the registrar, or to pura- mon the caveator. This view is further supported by Sec. 185, where the proprietor is mentioned as the jier- son who alone has a right to have a dealing or trans- mission registered. The policy of this enactment ap- pears to be that the registrar shall not be brought into contact with or run the risk of incurring liabilities to a stranger who may choose to lodge a caveat, and shall be entitled in all dealings with land brought under the T i a I (^)Hi. Mi 27H Toitntixs VAnna. operation of the Act to look to amd deal with the regiB" tered propiletor alone of that land. It was furthei* ('ont»'nded for the respondent that ais thi« was a proceedinj; npon or eonneeted with a caveat, it should h>'ve been brouf^ht before the Full Court, and that a Jud^e in ('hambers had no jurisdietiou to deal with it. But I think we should asMunie, nntil the contrary is shown, that the Judge considered the application to be one that required to be immediately heard, and in such a case, according to our decision. Re " Transfer of Land Statute," Ex p. I'eck, - a single Judge would have jurisdiction. The appeal will be dismissed with costs. Appeal dismissed with costs. Solicitors for nppellnnt :— Davios, Prieo & Wijjhton. Solicitor for rcHpondciit : — Crocker. 1878.] [8 V. L. R. (E.) 266. COLECHIN V. WADE. ,?r V:ih. c. 'i— •• Transfer of Land Statute " {Xo. 301), ss. 3, 49, 50. — Voluntary settleinei — Sftecific performance. 50. — Voluntary settlement — Certijicate of title — Sale hy settlor A voluntary settlement of land under the " Transfer of Luna Statute" is void under the 27 Eliz. Cap. 4, as against n subsequent purchaser, with notice, from the settlor, notwithstunJlina that the volunteer holds a certificate of title as registered proprietor under the Act ; and such subsequent purchaser may maintiiin a suit for specific performance against the settlor and the registered proprietor. The bill in this case was filed by William George Colecliin against Edmund Wade and his infant sou Albert, upon the following facts : — The defendant Edmund Wade being seized in fee of land situate in Faraday street, Carlton, brought it under the operation of the " Transfer of Land Statute," and in accordance with his [*267] directions a certificate of title, dated the 28th March, 1876, was issued in the name of lus son, the infant defendant, as registered proprietor. 2 10 V. L. R. (L.) 328. •'ii*' CO LECH I y I. WADE. 279 (Ml tin.' lltli Jjmuary, 1M77, FMmniul Wad** fiittTed into an at^reeuient with the plaintitT for the Halt* to him of till' land for tlio Huni of £:{0(>, Hubj was fraudulent and void as against him, and for a direction to Albert Wade, or to some proper jrerson appointed t(> act for him, to execute a proper transfer to the plaintiff. The defendant Edmund Wade, by his answer, ad- mitted the allegations of fact in the bill and submitted the question of law to the judgment of the Court ; and the defe»ndant Albert Wade put in the usual infant's answer. Mr. Webb, for the plaintiff : — This is the ordinary case of a suit by a purchaser for specific performance, notwithstanding a prior voluntary settlement by the vendor, and the plaintiff is entitled to the decree in the teims of the prayer : Buckle v. Mitcliell,^ Dalcing v. Wliimper.2 Mr. Kelleher, for the defendant Edmund Wade, con- sented to a decree as prayed. Mr. Lawes, for the infant defendant: — The statute 27 Eliz. c. 4, has no operation where, as in tliis case, the land is held und/er the " Transfer of Land Statute." This ques- tion was argued, but not disposed of, in Moss v. William- 8on.=* [*2G8] By the preamble to the " Transfer of Land Htatute '' the object of the Act is declared to be " to give 1 18 Vcs. 100. 2 20 Benv. oG8. 3 3 V. U U. (E.) 221. 'r. 2S0 TOnni-W'S CASKS. w ■«5.V •t -n PVf i> certainty to tin* title t«> cKtnti'H in Imid.*' Tlie Htatute of Elixntx'tli \n'i\n* in<'oiiHiHt(>iit with tliiit ohjiM't lutH no appllnitlon in tlilH rasi', an the eer- titlcate is almolute, and by See. ."() the title of a pur cliaHer from the rejflMtered proprietor Ih uninipeaehaM^ snve in the cant of fraud — that Ih fraud in tlu' Inception of the proprletorwhip. The fraud nnist be then exlHtlu}?, and have relation to the a<'roprietor- Hhip ; and notice alone does not amount to fraud. The costs of the infant should In any event be ])rovided for. Mr. Webb In reply : — The principle upon which the statute of Klizabetli operates is, that the subsequent sale is evidence of a fraud in the orijjinal settlement. The operation of the statute of Elizabeth is not excluded by the "Transfer of Land Stattite," a reyistered proprietor beinp bound by all equities alfectinjj: the sale : Mad- dison V. McCartliy.^ Tlie operaticm of the V.\ Eliz. c. .', affoi'ds a good test. There would be no protection af- forded by the ** Transfer of Land Statute " in the case of a voluntary settlement of land under that Act, Avith in- tent to defraud creditors. Cur. adv. vult. MR. JUSTICE MOLESWORTH :— This is a suit by Mr. Colechin a;iainst Mr. F^dmund Wad<' and Albert Wade, his infant son, to enforce speci- fic performance of a contract of Wade's (the father) for tlie sale of land to Colechin. Tlie father, havinp acquired title to the land, apidied to have it brouj^ht under tlio Act No. 301, and to have the certificate of title issued to his infant son, which was done 2Sth March, 187(5. lie afterwards wished to sell this land, and on the 11th Jan- uary, 1877, entered into a contract with the plaintiff (w'ho appears to have had full notice of the son's title) to sell it, partly for cash paid, partly to be paid. [*2G9] If the conveyance had been made to the son without the instrumentality of the Act No. 301, by long established authority, it would be void under 27 Eliza- * 2 W. W. & a'B. Eq. 151. COLECHIN V. \VA UK. 2H1 bctli as npiinst tli<> plaint itT, aiid fnituliilpnt In tho laiiKUii(;«> of (li(> Act, <'\|ilaiii«' (I(>ii)>t In tlio caHc, witii'li \-\ <'onHi(l«>rabl(>, Ih wli(>ther tlu> lanKna^c of the Act No. .:()! docM not protect AMici't'i* titl<>. Popularly Hpoakin^ tlu'ro whh no fraud in tlio Wadt'H, tlio fatlu'r j?ivinK to tlio Hon, nor in tlu* t.ilicr Hi'llln^ to tho plaiDtliT, knmvinii; of the coi'tllicato luivinir lHHUt') — Tni:«' xinifilf, irit/iiiut fmirrr of' iuilt—lii;ilit to l>iiuif hmil under the Ait. TruMtJM'M ill f»'«> iif IiuhI. hot hiivini; |Hiw«>r of mil', iir<' " owmTN," within tlie menniiu of hec. 17. fiih hcc. (ll, liDtt fiititleil to bring liiml iiiir tin* ii|icniii tii of tlif Art. SiiiiiiiionH 1i,v tli«* iippliraiits. .lohii Ilciin iind Kirliani <)iir(>. to tlu* Kf^isiti-ar of Titles to siibHrnntiat*' anil uphold tile Ki'**'i()(l'* r*:(«;Tl of liirt icfiiHal of an applica- tloii laadi* to Itrln;; ««\iaiii land undrr tlie " TrauHfiT of Land Statnti." Tlio tiiound \ipon whirli tli^^ application was ict'iiscd wa.'* that tlu' ai'plirantx wit** u t tlu* o\vn«'iM of an cHtato in fco Hinipic in tin* land appli<>d for within tin' moaning of S«m-. 17. snh-stM*. [\), of tlu* "Transfer of Land Ktaditi'" (Xo. .'{01 1. It Hppcan'd that the ai>pli<'»nts wvvv st'ist'd in U-v, as tnisttM*s, but wtTf not tfustei'S foi' sah' of tlu* land. Xoijjhbonr, for the iv^istrar : — Tlu* applicants in this on»»* w»*iv seist'd in f»*«*. but weiv trnHttM*H not having a power of nale, and conm'ipn'ntly the registrar refused to bring the land under the Art. on the ground that they w«'ie luit included in that class of persons who are en- titled to bring land thereunder. \\\ Sec. 17 the classes of persons who can bring land under the Act are defined. By sub-sec. (1), any jjerson claiming to be the owner of the fee simple, either at law or in equity ; and by Bub-sec. (5), tnisteee for the sale of the fcc*^ 8imi)le may bring land under the Act. An " owner in equity " is the person who is the beneficial owner of the property, but whose legal estate is outstanding in a trustee ; and UK /nfxy A St) a HICK. 'JS.1 IlKi piifli II |M»i'i»on wonhl oini' iuhI t ^ivhHfc ih. An "owiMT lit law" Im a |nr tun nttltli'd to .('ri'lvi' rt'iilM or protltM of tilt' lan "owner," and ho ninnot he inrlinliil In nub >«•(■, li). The woldM in hiiU Mec. |.*i) life limited to tniMtower to lodK*' » raveat. and mo hav<' the lMMietleiarie?<.| A parlit'ular elass of iruMteeM \n npeei- fled, smtl. therefor*', all other truMteeM are excluded, and there ii* no reaMon why the nieaniiii; Hlioiild be e.xtend«>d. [Williams. ,1. — The clasH Im limited to ** truMtees for Hale," beciiUMe otheiwise, If yon wen* to allow a trn e«» who luul no power of sale to brlnjx 'he land under the A(!t, you niiv'hi defeat the intention of a [*;U»S] Hettlor.j Hy isMulnj: a certificate of title, the whole intentluu of the Hettlor inij;ht be clian;ied. a'lteckett, foi' the applicants : — The provisions «»f »ub->ec. (li of StN*. 17 are wide eiiou;;h to enable all truvtei'S to be rejjistered under tlie Act. The wordH "owner at law" are clearly diMtlnct from "owner in equity," and, if that Htdtsi'Ctioii stood alone, it would certainly include that class of trustees in whom the fee simple waH vested. Hut it is said sub-sec. (5) nanowH the meaning; of sub-sec. (Ii, and limits the word "trustee" to "trustees with power to sell." Sub-sec. (o) means and includes another class of trustees, namely, that class which cannot come in undi'r sub-sec. (1), as the le^al estate is not vested in them. It merely in- cludes tniBtees with power to sell but who have no other powers at all. Tliese applicants have no power to sell, but they are seised in fee simple, and have a rijjht that their title should be established liy bringing the land under the Act. Cur. adv. vult. 284 runnEXS casks. Higinbothani, J. — Tho Kejfistrar of Titles has In't'ii summoned, uiidei' Sec. 135 of the *' Tiansfer of Luiul Statute,'' to substantiate and upliold the grounds of liis refusal to grant an application under Sec. 17 to bring land under the operation of the Act. The applicants claim to be the owners in fee as trustees, but not trustees for sale, of the land in respect of which the application is made. The Commissioner of Titles refused to entertain the application, on the ground that the applicants »vere not, in his opinion, the owners of an estate in fee simple, within the ni«^aning of .sub- sec. (1) of See. 17. It has been contended, for the regis- trar, that it is not the policy of the statute that trustees should be registered as proprietors of land, unless they are trufciees for the sale of the fee simple, and that even then registration is, by sub-sec. (5), conditional, in a case where a i)revious consent is requisite, upon such con- sent being obtained. It is necessary, in support of this view, to interpret the word " owner " in sub-sec. (1) as meaning the Ix'iie- ficial owner only, so [*3G9] as to exclude a trustee from the operation of that sub-section. But this limitation is inconsistent with the words in the same subsection " either in law or in equity,'' whicli clearly includes the owner of the legal estate only, as well as the beneficial owner. If we interpret sub-sec. (1) according to the plain lefgal meaning of its terms, sub-sec (5), intei'preted in the same w-ay, will apply exclusively to trustees who are trustees for the sale of the fee simple, but who need not have the fee simple vested in them. The probable policy of the statute cannot be allowed to control the ex- press and plain terms of the statute. The registrar has failed, in our opinion, to substanti- ate and support the grounds of his refusal to bring the land of tlie applicants under the operation of the stattite. He will now be ordered to comply with the application; and, under the circumstances of the case, we deem it to be just further to order, under Sec. 72 of the Act No. 872, JtE DENN AND GRICE. 285 that he shall pay to the applieunts the costs and ex- penses of and attendant upon this snninions, which will accordingly coiue out of tlie assurance fund. Williams, J. — I concur in the judgujcnt of the Court, but with some doubt. Holroyd, J. — I also concur, but I do not agree with the view of the policy of the statute which has been submitted by the learned counsel for the registrar. Summons, to compel the Registrar of Titles to regis- ter the applicants as proprietors of the land, granted with costs. Soliiitors for api'licants :— Smith & Eininorton. Solicitor for Registrar : — Sutherland, Crown Solicitor. VlCTOllIA, 1887.] [18 V. L R. 461. OGLE V. AEDY. Transfer of Land Statute," s. 138 {iv.) — Fraud of permm not the owner hriuiihui land under the Act in his own name — Ejectment — Cancellation of certificate of title — Execution of transfer to r it/hi ful oicncr — E.ejiennes of brinijinij land under the Act — Mesne ])rojits. Where the owner of land had been deprived of it by the defen- dant having brought it under the " Transfer of Land Statute." and liaviug obtained a certificate of title in his own name by moans of inlae and fraudulent declarations, the Court would not order the Registrar of Titles to cancel such certificate, lie not, having been made a party to the action ; but it ordered the defendant to give up possession of the land, with mesne profits for the time he had been iu occupation ; also to deliver up the duplicate certificate of title, aud to execute a transfer to the plaintiff. The defendant was not allowed the expense of bringing the land under the Act. Action by Mark Frederick Ogle against William Aedy to recover possession of about ten acres of land near Oakleigh, and claiming that the Registrar of Titles should cancel the defendant's certificate of title to the same, or that the defendant should transfer the same to the plaintiff, on the ground that the defendant had become the registered jjroprietor of the land through fraud of the defendant in making false statutory declara- tions in bringing the same under the " Transfer of Land Statute," or on the gi'ound that the plaintiff had been , ,'J n 286 TORRENS CASES. m deprived of the land through its having been brought under the operation of the Act on the application of the defendant ; or, in the alternative, damages under Sec. 144 of the Act. The evidence for the plaintiff showed that the plain- tiff had purchased the land in question on the Slst Janu- ary, 1855, and [*4({2] obtained a conveyance. In 185<5 the plaintiff liiniself went into occupation of the land, and remained in till 1857, when he let it to John James Smith, who went into possession and remained in as his tenant up to August, 18fi2, when the plaintiff, through his agent, (leo. Hardy, since deceased, author- ised one Stocks to use the land for the grazing of cattle, he undertaking to look after it, and to prevent any per- son from cutting redgum timber upon it. Stocks paid no rent^ but remained in possession of the land till 187(5 or 1877, when he saw the defendant in the act of cutting redgum timber on the land ; Stocks thereupon told the defendant that he had authority from the plaintiff to stop persons cutting the timber, and ordered him to stop, and the defendant desisted, saying he did not know he was doing any harm. In 1875 the defendant wrote to the plaintiff a letter (produced), asking to be allowed to rent the land, with the option of purchase. In 1881 the defendant applied to have the land brought under the " Transfei' of Land Statute " as on a possessory title, and lodged in support of his application statutory de- clarations by himself declaring, inter alia, that he had been in possession of the land since 1863, and never heard of anyone claiming it. Upon the declarations the defendant was registered as proprietor under the Act. A large amount of evidence was also given for the plain- tiff to show that the statements made by the defendant in the statutory declarations, made for the purpose of bringing the land under the Act, were false. The defendant called no evidence. Leon and Higgins for the plaintiff : — The uncontra- dicted evidence given for the plaintiff si:ows that the plaintiff or his tenants were in uninterrupted possession (KiLE V. AEDY. 287 of tb" 'and till 187« or 1H77. Even if it did not, tliere are two acts proved by the evidence, either of wliicli wonld be sufficient to talie the case out of tlie Statute of Limi- tations, and in itself is an ncknowled}j;nient of the plain- tiff's title. The first is that in 1S75 the defendant wanted to lease the land from the plaintiff ; the second that in 187(5 or 1877 the defendant was warned by the plaintiff's 4i4»ent apiinst cutting timber, and iicijuiesced in that agent's right to stop him. [♦463] Weigall (f«r Isaacs) for the defendant :— The plaintiff has not, by the defendant's obtaining a certi- ficate of title, been deprived of the land, first because he had under the Statute of Limitations at that time forfeited all right to it ; and secondly because, by the " Transfer of Land Statute " (No. 301), Sec. 49, that cer- tificate is expressly made subject to a prior registered grant, which means a Crown grant, and here the plain- tiff claims under the original Crown grantee. [Webb, J. — If your latter point were good, no i-erti- flcate of title could have any force, because every title begins with a (^rown grant.] The words are precise. They not only protect a prior registered certificate of title, but also a prior registered grant, which can only mean a Crown grant. [Webb, J. — The section begins by saying, " Notwith- standing the existence in any other person of any estate or interest, whether derived by grant from Her Majesty or otherwise .... the proprietor . . . shall . . . . hold," etc.] The plaintiff's remedy is barred by the Statute of Limitations. The only thing that could in any way be considered as taking the case out of that statute is the defendant's letter to the plaintiff in 1875, and the plain- tiff is not entitled to rely on that as an acknowledgment by the defendant of the plaintiff's title so as to take the case out of the operation of the statute, because such an acknowledgment, to be efficacious, must be made by a person in possession ; and the plaintiff asserts that the defendant was not then in possession of the land. pr^ ■fc m 'V; rravj? 288 rORHEXS CASES. A» the Ke^^Htrai' of Titles is not a party to the actiou, no order for the delivery up of the certificate of title can be made, and if the defendant be ordered to execute a transfer of the land to the plaiutitT he ought to be recouped his expenses of brinj;ing the land under the Act. The plaintilf should not {^et the benefit of the land being brought under the Act without also bearing that burthen. Cur. adv. vult. Webb, J. — In January, 1835, tlie plaintiff purchased the piece of land, the subject of this action, comprising about ten acres [*4G4] near Oakleigh, which was duly conveyed to him, and to which he has in this action proved a good paper title in fee. In June, 1881, the defendant lodged with the Regis- trar of Titles an application to have this land brought under the operation of the " Transfer of Land Statute," and in such application claimed to be '' the owner of an estate by possession " in the land. The only document lodged in support was a statutory declaration by the defendant himself, dated 2Gth May, 1881, as follows :— " I, William Aedy, of Oakleigh, county of Bourke, farmer, do solemnly and sincerely declare that I took possession of the land applied for in the year 1863 when I fenced it in ; that I have held possession ever since and paid tlie rates ; that no one has ever made a claim to me for rent for the said land ; nor have I ever heard of any- one claiming the said land." That declaration appears to have been considered insufficient, for the defendant subsequently lodged a fresh statutory declaration, made by him on the 27th August, 1881, in which he described the land by measurements and a plan, and then pro- ceeds, "The said land belonged to one Mark Frederick Ogle," that is the plaintiff, " he having purchased the same on or about the 31st day of January, 1855, from one Richard G-ardiner Cooke," that being the date, and the name of the grantor, in the conveyance of the land to the plaintiff. " In the latter part of the year 1855 I entered into possession of the said land, and partly fenced in the same." He had previously said he took ft .i-i OGLE V. AEDY. 289 poBsessioii and fenred in the year 18<»:{. "In the year \H(Y.\ tlie wliolo of the Haid hind was fenced in and enclosed, and also occujiied, by nie, and I have ever since been and still am in {tossession of such land. I have for u])- wards of tw<'nty years had undisturbed ]>ossession of the said land, and 1 have for a number of years paid and do now pay rates in respect of the same." Another declaration was also Iodised by the defendant, made by a Mr. Aitken on the .'ird Sei)tember, 18S1, in which he d(M*lares : — " That to my knowledj^e the said William Aedy fenced in and enclosed the said land about seven- teen y, ars ago, and such land is still fenced in. And I say that during the whole of that period the said Wil- liam Aedy has been and still is in possession of the said land." It appears then to have been objected, in accord- ance with the practice of the office, with reference to the operation of the Statute of Limitations, [*4()5] that evidence must be given that the plaintiff was in the col- ony in 180.3, and another statutory declaration was lodged, made by the defendant on the 18th of February, 1882, in which he declares that he had learnt from vari- ous people that the plaintiff was in the colony at the beginning and end of 1863, and he adds : — " I believe that the said ilark Frederick Ogle has been and is now residing in Maryborough, and carrying on business as a (-hemist and druggist." There were also two other declarations lodged in support of the application, one by Mr. W. J. Fookes, stating that he had made enquiries and had been informed that the plaintiff had not been out of the colony ; and the other by Mr. E. R. Blood, who declared, " That the said Mark Frederick Ogle was in the said colony during the whole of the year 1863, and has been, and is now carrying on the business of a chemist in Maryborough." These six declarations are the whole of the materials lodged in support of the defendant's application to bring the land under the Act. It appeared on the face of the defendant's second de- claration that the plaintiff had purchased the land. The registry would show that the title was still outstanding in him, and in two other of the declarations filed it was H. TOn. CAS. — 19 rrm^ 1. ■1' 200 ToHltENS CAHES. staUMl that the jdaintitt' was tlicn carryinj,' on busincHs in Maryborough. Hut ncvcrthclcHH It does not appear to have been thought npccHHary to direct Hcrvicc of amy notice upon him, as ini^lit liave been done under Bee. 19 of tlie "TraiiHfer of Land Statute," and, witlioiit ihc liuowledi^e of tlie plaintiff, tlie land was bronpht under the Act, and a certificate of title, dated the 15th March, 18S2, issued to the defendant. The plaintiff now brinjjs this action, claiming posses- sion of the land, and to have the defendant's certificate of title cancelled, or the defendant ordered to transfer to the plaintiff, on the ground that the defendant became the registered proprietor through fraud, the statutory declarations made by the defendant being alleged to be false in several particulars stated in the statement of claim. The plaintiff, in the alternative, claims relief on the ground that he has been deprived of the land through its having been brought under the operation of the statute on the application of the defendant, which is independent of fraud. The plaintiff in a further alterna- tive claims damages under Sec. 144 of the Act. [*4(iG] The defendant by his pleading denies the fraud and alleges that all the statements in his declarations were true, or, at all events, if not true in fact, that he hon- estly believed them to be true. But at the trial he prac- tically left the case undefended so far as the charges of fraud are concerned, and relied solely upon legal and technical objections taken by his counsel. A large amount of evidence was given by the plaintiff to show the falsity of the statements made by the defendant in his declarations. He, on the other hand, neither went into the box himself nor called any witnesses to attempt to prove their truth. Nor did he call Aitken to supiiort the declaration made by him. Upon the evidence, I have no hesitation in finding that all the material statements in the defendant's de- claration were untrue, and that to the defendant's know- ledge, and were therefore not only false but fraudulent. One of these statements is that the defendant had, ever OOLE V. AEDY, 201 Hince 18(!.'l, held possc'HHiun of the hind, and liad paid lati'H on It. The <'vld(*nrc of {\\v rate ((dlector is that the defendant never i>ald any lates before lSS:i, whereas the payment of rates waw pnt forward by the defendant as evidenee of his poHHesHion, in order to obtain tlie e<*r- titlcate of tith', whicli was iwHued to liini in Mareli, 1HS2. Anotlier Htatenient iH tluit tlie defendant liad never heard of any one claiming tlie land ; the fact bein^; that in September, 1875, le8H than six years before making the declaration, tlie defendant had written to tlie plaiin- titr a letter prodnced in evidence, and admitted by the defendant's connsel to be liis, asking to be allowed to lent the land with a right to purchase. Another state- ment is that tlie defendant for upvvards of twenty years prior to August, ISSl, had been in undisturbed posses- sion of the land, the evidence showing that until August, 11^(52, the land had been in possession of Smith, a tenant of the plaintiff, that then a neighbour (Stocks) was put in possession, under an agreement with the plaintiff's agent tliat he might have the right of grazing over the land if he protected the timber from being cut, and in 187G or 1877 the defendant commencing to cut a redgum tree on the ground was stopped by Stocks from so doing, who told him he had authority from the plaintiff to lool; after the land and not allow any one to cut timber, and thereupon the defendant desisted, saying he did [*4G7] not know he was doing any harm. It appears that some of the defendant's cattle occasionally grazed on the land in common with those of Stock's (who all along represented the plaintiff) and other neighbours, the land not being until recently completely enclosed. But upon the evidence I have no doubt, and so find, that the defen- dant was never in exclusive possession of the land until after the issue of the certificate of title to him in 1882. For the defendant it has been contended that the plaintiff was not deprived of this land by reason of its being brought under the Act, because in 1882, when it was brought under the Act, the title of the plaintiff was determined by the operation of the Statute of Limita- tions. To this there are several answers. First, I find TV 'H i f: m\ 292 TOHREXS CASES. iiH a furt tliat the plaiiititT, by hm tenant and rarctaki-r, vvaH in iKmrn-KHion of tlie land, at all events down to 1S7(» or 1S77, when there waH a diHtinet aHsertion of owner- Hhip b.v liiH a^ent on IiIh behalf, and a reeo^'nition of hiw riyht of ownerHhi|» by the defendant. Aj^ain, even HuppoH- inn tlH» plaintitf, the true owner, to have been out of poH- HewHlon, IiIh title was recoj^nized by the defendant in his letter of Hepteniber, 1875, which amounts to an acknow- ledgment, so as to take the case out of the statute. Against this it is ur^ed that such acknowledgment m-ist be made by a person in possession of the land, and that the plaintiff contends the defendant was not then in possession. This argument certainly does not lie in the defendant's mouth, whose whole case is that in 1881 h<; acquired a title by possession for more than fifteen years. If he was in possession in Sei)tember, 1875, the acknowledgment was by a person in possession ; if he was not in possession in September, 1875, he had no right to declare in 1881 that he had been in undisturbed possession since 18(;.*i, and thereby obtain a certificate of title under the Act. L\i)on the facts of this case, I find, upon the uncon- troverted evidence of the plaintiff and his witnesses, that the plaintiff has been deprived of this land by the fraud of the defendant, and that the defendant has been regis- tered as proprietor of this land through such fraud. That being so, the plaintiff is entitled to maintain eject- ment against the defendant, the case falling within the exception in Sec. 138 (iv.) [•4G8.] The next question is whether this Court can, in this action, order the registrar to cancel the certificate of title issued to the defendant. It is urged for the defen- dant that the registrar being no party to this action, no order upon him can be made in it. I think this objec- tion must prevail, but the plaintiff is entitled to the alternative relief that he seeks, viz., the execution by the defendant of a transfer of the land in question to the plaintiff. The defendant has committed a gross fraud upon the plaintiff by means of knowingly false state- ments made by him in certain statutory declarations OULE f. AEDV. 293 by incant* of wlih-li lie inducod tho nftiflnlH of the TItlcH ()t1l((> to ^raiit him a ('('rtiHon h:ui of this judgment to deliver up to the plain- tiff, or to his solicitor, the duplicate certificate of title issued to thts defendant, vol. 1,324, fol. 264,768, and to execute [♦469] forthwith, upon the same bein<; tendered to liim tor execution, a tranbt'er of the plaintiff of the land therein comprised, and all other necessary documents for the purpose of transferring such land to the plaintiff, such transfer and other documents to be settled in Chambers lu case the parties differ. Order defendant to pay the plaintiff his costs ot w ^^^^m^T 204 TORRENH CASES. tliiH action, iiK-liiiliiiK till' coMtN of |irfpai'iiiir. Ncttlinir, nixl pntctiriiit; tli«> fXiMMition of Miirli traiiHfor ami (»tlii>r (Idciiiiii'iitH. Ut>fi>r to tii.\. liiliiTty to a|i|il.v. HolicitorM for plaiiitifir :— Ilai-t iV Hi'iijauiiii, lor Haiinifl & Ilor- >vitx. Ilaiiiiitoii. HolicitorM I'oi' ilofontlnnt :--('rlMp, LowIh & Ili'ililorwick. Victoria, LSTo.] [1 V. L. K. (E.) 111. GUNN V. HARVEY. **The Minhiff Stntut,; 1806 " {Xo. ^01), m. 101, 1'24, lHO—Couts of miui'K — i 'nisH rdirj' — JurmUvtwn — Dtinuinr — Ctiiijinitr of title — ('inurlliitioii. Tile Supronio (Vmrt Iuvm oiicnrreTit jurisrliction with Courtu of MiinH : hut t^i'iicraliy would not fXtTciHc Hiich jni-isdictioii, in ncit- ttTH within tlu' jiirimllction of the latter CoiirtM. WliiTe 11 tri'HpaHH Hiiit was inHtitutt* to n niininK k>aHt>, nnd th<> dt'tViidant filed a hill in Equity iniponehinK tlu> ct rtificato for fraud, the Court, upon d«>iu ir"«-r, rcfuHfd to entertain the Huit ; on the ground that tlie niiiltcrs put forward in the hill were available na a defence to the plaint in the Court of Minew, and that any active relief reijuiroil by the plaintiff in Equity uiiKht he ijiven in the Court of Mines by wiiv of cross relief. The Supreme Court in Equity has no juriHdietion to order tlif> ( iiiicellntion of a certificate of title. The proper mode of Kivin,\r relief from the inequitable effect of such a certificate is by orderiiii,' the registered iiroprietop to exeinite a transfer. Bill by W. Gunn, C. Tike, I. Thompson, W. Eastman, W. Gnnn the younger, A. Rechie, J. Hopkins, and N. Brown apiinst J. Harvey and The Nell Gwynne Quartz Mining Comi)any (Limited), to the following effect : — In July, 1871, one J. F. Edwards applied under " The Mining Statute, 18(15," for a gold mining lease of a cer- tain i>iece of land, particularly described in the bill, jind in his application stated that he was applying on behalf of the Herald Company. At this time the laud was occupied as a mining claim by Edwards and all the plaintiffs other than Brown, under miners' rights, and tliey were in partnership under the style of the Herald Conii)auy, but tlie couipiaiy was not incorporated. Ed- wards mad-' the application for the lease at the request of his co-partners, and they consented to the lease being UUN!f V. HAHVEY. 205 iHHiM'd to him iiH a Inistff for the piirtiu'i'ship. On tli(> Mfli .Iiiiiimr.v, ls72, u h-uMf of tlii' land was iMmied to KdsvaidM. Oil tlu' iHt I)«'(M'nil>(M', 1M7.'{, Edwards Hold to tlio plaintitf (iniiii all liix inti'rcmt in tlic li>aH(> and |»artiu>r- Hliip ; and, in accoti'dancc with an aKi't'cnicnt Ik'Iw<'cii KdwaidH and the other partnei-H that In* Hhould tianHfci' tin' h'aHc to finnn to Ik* ludd b.v him in truHt for tin? partncrHliip, KdwardH, on the iJlHt Dccemhci*, 1873, aj)- |)li<'d to the Minister of MincM for pcrmiHHion to tranHfer tli«* learn' ; [•11-J and sneh licenne bein^j K^ven, Kdwiirdrt, on tlie 17th Febrnai'.v, ls74, tranHferred to (hinn all hin ••state and interest in the lease ; and surli transfer was talien in trust for himself and his eop.ut- ners. In May, 1874, Onnn, with the consent of his eo- partnresent plaintiffs were restrained from minin;j; on the land until tlie hearing of the suit or further order of the Court. By the plaint to the Court of Mines, it was alleged that the defendant Harvey was the registered proprietor of a leasehold estate for an unexpired term in the land comprised in the lease of the Sth January, 1872, and this the bill admitted. On the 10th July, 1873, one Atkinson, by his attorney Sanders, issued a plaint summons in the Sandhurst SnT^ 2!H{ TonnES's cA^Ks. roniity roiiii ay:iiiiii«l KilnnnU t«> icrdvci- t«'ii mIiIIIIii^'h «hu' liiiii, iiikI on thr Sfli Aiikiihi, 1s7:{. AikiiiHdii re rnvcit'il jildKliMMlt for tliin mini. It)^l>lll•'^ \S\\\\ i•\^^U^^•^'\\ HhillinuM roMtx. On llu' -imI hfriMiilM-r. \s':\, oiii> Suvriw, for Mdwai'tlH, ptiid £1 >h. Io AtkiiiMKii. ami on tli • l\n\ ht'cnnlifr IIiIk hiiiii wan r«-|iai(l to SaviM'H l»y KilwiirtlH. Tin- hill tluMi all4'K**<1 t'ls't «>" tin* *Jn. (\o.;u:.), of the Judy nit'ut, and that the debt wan unpaid : and. luivin^ tiled this ei'rtilleate in tin* Supreme Court, nl^rned tiiuil jud^meiil for that amount, top>ih(*r with the fecH authorised by the Htatute. On the 12th January. Is74. Welsh, Htill puriMtrtlnj; to aict iiH attorney for Atkinson, but without his know- ledge or authority, issued n writ of ti. fa. uptm the tlnal judgment ; and on the 2lHt .lanuary. 1S74, the Kheriff of the Sandhurst and CaHtlemnine I>if*trlet caused all tlie rij>;ht, title and int«'rest tif any) of Kdwards in the lease to be put up for sale liy the public atiction. The plain- tiff (lunn attended at the sale, and objected therett). ami delivered to the BheritV a protest a;;ainst his selling any interest in the lease, it havin;; been applied for by Ed- wards for and on behalf of the Herald Coinpan.v. This protest was read by the sherilT at the sale, in the p! '^- Bence of Welsh and Harvey, and the sherit!" the nounted that he was only about to sell the iutert of Edwards In the lease "if any." and thereujiou Hai.'V became the purcha»<'r for C. KM. Welsh was present with Harvey at the sale : and on his behalf, he paid a deposit of one pound : and he acted as his solicitor, and subsecpiently procured a certificate of title to be issued UVSS ••. HAHVKY' 21)7 lit lliirv<>v, iiM |iro|ii-i«'toi' of till* li'iiMi'lioM r^iulc In llii* IuimI. Tli«* |iliiiiitllTs olIitT tliiiii llt'iMvii well' til |mimm«'hmIi»ii iiikI iMTiipiiiioii of I III* liiiiil. iiiwl «'Ii;;ii;:«m1 in iiiiniiijx tll<'l'4>0|| ill lilt' lillK' of tllf Hlllr. illHi IiImI (with Itl'OWII, Millrr till' (l;ltl- of llix |)ll|-l'||j|K«>l «>V«T hillCP ImtII. MIkI Ktlll wrl'c. ill poNMi'Msioii, iiiitl liiiil, KM |>:il'tli«>l'H, ptiitl out of lllfil* plilllD-l-sllip flllMis t!l«' tl'lll for llic irilHC to till* pi't'Mi'iit tiiiic. lliii V(>v liiiil never nitcitMl into poHxen Mion. 1111(1 until tin* Huit in tlii> Court of Mini-M, iicillirr lie nor tlie d'-renilnnt roin|»iny IdkI ever rliiinie«l to he entitle*! to poHHession, or in any wjiy inti'rfeied with the pliiintitTM. The Itill then nllep;t>(l thiit nt (he time when WelHli ohtiiiiH'd the eeititiciite from the |{e^iKtrar of tlie County Court, siihI Mi^iieil limil jndf^nient, he knew, or hiid reason to h«>ll<>ve, that the iMoney had hetMi paid, and the pr«>- ( •M'diii^ of Welsh was wludly nnaathorised hy Atkinson; and at the times of his pnrrhase and the issiiiiiij; of the eeititirate of title to hiiii, llarvey well knew, or at all i'\erly obtained, and was not binding on Kdwards, or those rlaimiiiK uiir him : and the plaintitl's Hub- milted that the certitlcate of titl(> was obtained by fraud, within the meaning of the 4!M!i s(>etion of the "Transfer of Land Statute," and was nut valid a;;ainst the plain- lilTs ; and they further submitted that, inasmueh as Kdwards wa« a trustee of the lease for them, it eould not lawfully be taken in exenition or sold by the slieritT under the writ aj;ainst Kdwaids. and that tlie seizuro and sale, and the subsequent issm> of the certiticate, were invalid. In the plaint in the Court of Mines it was alle}?ed that the di'feiidant urcliis(^ by Harvey was invalid as against the plaintiffs, and that the certificate of title was void, and ought to be delivered up to be cancelled, and that it might be ordered to be cancelled accordingly ; and for an injunc- tion to restrain the suit in the Court of Mines. The defendants demurred separately, but on the same grounds : (1) Want of equity. (2) Uncertainty. (Il) That the Court ought not to entertain jurisdiction. (4) That the plaintitTs did not allege that they had not a good defence in the (^ourt of Mines ; and (5) That Edwards was a necessary party. Mr. a'lieckett for the demurrer of the defendant Harvey : — This Court has no jurisdiction to cancel a certificate of title ; and, further, it is open to the plain tiffs to make their defence in the Court of Mines. The only irregularity pointed out by the bill is in procuring the sale by the sheriff ; but it is not to be inferred from the bill that anything was wanting in the proceedings to affect their validity, while, on the other hand, it is to be inferred that the document under which the plain- tiffs claim [*115] was not an effectual and proper instru- ment under the " Titmsfer of I/md Statute.'' Edwards still remained tne registered proprietor. The present defendant got on the registei in a way alto- gether unexceptional, except so far as he was concerned in getting a sale from the sheriff. The mere facts of equitable interests being outstanding, of which the sheriff had notice, is immaterial : Robertson v. Keith.' It was never intended that this Court should correct the books of the registrar. The 132nd section, which provides for cancellation, etc., has received a very wide construction in the case of Re Paterson.^ » 1 V K. E(i. 11. ?4 A. .1. K. '2i], 110. QU2i2i V. UAHVEY. 299 \8 to the chai'fie of uotiro, a statement in the alternO' five Huch aH heie may be accepted in eitlier view the demurring defendant chooaeH : lialls v. Mai'jjrave,^ Here there is no allepition whicli at all helps out the uncer- tainty of the riew of the allepition in the bill which we adopt, namely, that it is that Harvey had notice through '.lis solicitor. Welsh's employment was subsequent to the sale. He did not pay the deposit money as solicitor, and therefore notice to him is insufficient. The only way in which a i-ejjfistered i)ropi"ietor can be affect"»l is by fraud. He must have participated in the fraud ; but liere all the bill says is that the defendant had construc- tive notice of e«inital»le interests, and this does not amount to fraud witj^in the meaning; of the Act. Mr. Holroyd for the demurrer of the defendant com- pany : — The bill asks for a declaration that the i)ur- i'hase was invalid, and that the certificate should be delivered «p to be cancelled, and for an order for can- ('^•llation. The demurrer is on the ground that the bill shows no equity, and that if this Court has jurisdiction it ought not to be exercised. By Sec. 34 of the " Transfer of Land Statute," certi- ficates of title are in duplicate. Great confusion would ensue if the order for cancellation is made. There could be no transfer to any one else. Certainly this Court cannot order one of the original certificates to be deliv- ered up and cancelled, and leave the other outstanding. Hut Sec. 132 provides for all cases of this nature. The Act had created an entirely new mode of transferring land, [*110] and gives great»'r pow«*rs to the Kegistrar of Titles. The 135th section provides for the intervention of this Court if he does not do his duty. We admit that this Court has power to direct a transfer, but it has not any jurisdiction to order a particular document to be de- livered up to be cancelled, and this is the only ground on wiiich the Court is now asked to restrain proceedings in the Court of Mines. But supposing the Court has jurisdiction, we have 3 3 Boiiv. 284. 1 Wr If 800 TO j: HENS CASES. 1^ i } r-4 a I'i^ht to dciinir, nn this ih a onse in which it oupht not to exercise its jurisdiction. Tlie cases in this Court upon the subject are: McCafferty v. Cuniniins,* Mulcah.v v. The Walluilla (!()nii)any,'' The T'nited Woikinj; Miners' (Jold Mining (\). v. Tlie Tiince of Wales Co.« All these were ar;;ned on the jiround that there was no jurisdic- tion, and it was held that there was jurisdiction ; but none of them decided that if it ai)pears on the bill that another (Nmrt is a proper Court to entertain the matter, and can jiive substantial relief, this Court will entertain tlie suit. Lookinj; to the English case we find an anal- ojiy : ftu' as Courts of Mines have been spread over this colony; so in England, Courts of IJank'uptcy have been sjjre'ad over the country ; and th« Court of Chancery has refused in many instances to exercise its jurisdictioti in matters which could be entertained bj- the Court of bankruptcy. In ^Isjrtin v. Powninjj:,' a case of fraudu- lent trusteeship, tlie Court held that the objection mijjht be raised by demurrer where another Court had co- ordinate jurisdiction. Similarly : Stone v. Thomas,'* Maguire v. O'Reilly," Thompson v. Derhani."*. If the (\»urt has jurisdiction, and this is a proper ease for the exercise of it, then the bill should have asked for a transfer, not for cancellation of the certifi- cate : Robertson v. Keith." [Molesvvorth, J. — In the cases that have been before me, so far as I recollect, the form of relief soujj;ht lias been to direct a transfer, not a delivery up and cancellation of the certificate.! Yes, and in the case of Ibew v. Jones ^- the prayer was that the defendant [*117] should be declared a trustee on the j-round that the certificate had been obtained throuj,'li fraud. * .-) W. W. \- a'n. L. 01. f' Ar;:>i><. -"th Mii.v. ISCtS. «« W. W. AuH. Kq. 8. ' L. U 4 Ch o.'CJ. »* L. U. n CI). 2V.K 22.".. " .". .1. & L 224, 2:!0. 10 1 IIiiri«. :?.-.8, :mi. Ill V. K. Kq. 11. 12 2 V. li. K(i. 20. m HP (WNN V. HARVEY. 301 Lastly, guppusing Edwards bad improperly trans- ferred away, or was repudiating his trust, the Court of Mines eould restrain him from parting with any interest; and Harvey does not stand in a worse position than Edwards. The plaintiffs do not make a speeifte charge of notice. Tliey try to fix Harvey with constructive notice through his solicitor, and the i'omjianj- is sought to be fixed with notice through Harvey. The fact of one man being trustee for s«)mebody else is not notice of anything whatsoever. Mr. Webb for the bill : — The purchaser acquired notice of all Welsh, his solicitor, knew. There are num- erous cases to show that a person acquires notice of all liis solicitor knows in the transaetioii. [Molesworth, J. — Surely all the facts are consistent with the pur- (liaser dealing fairly. Besides, we are not dealing with the case of setting aside the execution : we are dealing with persons claiming under a paramount title.] Ed- wards was a trustee for the plaintiffs ; and the plain- tiffs say that the whole transaction by Welsh and Har- vey was a scheme to obtain the plaintiffs' proi)ei'ty. [Molesworth, J. — That is not charged in the bill.] Tliat is the necessary inference to be drawn from the facts alleged. As to tlie (juestion of jurisdiction, the Court of Mines has no jurisdiction as to fraud. This was a plaint for trespass. What answer would it have been to say that the certifi«ate had been obtained by fraud ? The pre- sent plaintiffs could not institute a cross suit based on the alleged fraud. The jurisdiction of the Court of Mines is limited by Sec. 101. This Court will entertain any case of fraud. The fraud itself gives the jurisdiction. Again, it is said that the bill asks for the wrong relief, and ought to have prayed for a transfer of the lease. But the proper course is to have the sale set aside and the certificate cancelled. The present defendants have never entered into occupation. The plaintiffs have been in possession all along, and therefore the purchaser T t ■ V 1 ( 302 TOltHKA'S CASKS. tnk«'H nothing,' : Koj^ei'tson v, Keith.'" [.Moh'«\V(H'th. .J. — V(Mi luivc nHk«Ml for p particular relief. How can I [*11S] «>ancel the cfrtilleate ?1 The eertiti<'ate is is.>*ue(l in duplicate. Oue part Ik in Harvey's hands, and if he deliv«Ms this up, and it ho cancelled, he will he rendered harmless. The l.'il'nd sewer to jjfive relief '!] No, it has no jurisdiction. All the cases in this Court that have been cited are in favour of this Court retain- ing, and not ousting, its jurisdiction. In the English cases complete relief could be given in the other Courts, but no such complete relief can be obtained in the Court of Mines. A demurrer will not lie if the plain- tiffs can obtain any of the relief sought ; and here the plaiutitTs are entitled to some of the relief prayed. A bill seeking to set aside voluntary settlement, and asking for its delivery up to be cancelled, would not be demur- rable. It is only necessary to get the present certificate removed, and then the plaintiffs can register their trans- fer from Edwards. If necessary, a decree for a transfer may be made under the prayer for general relief. Mr. a'Beckett in reply : — If possession confers an equitable right, it is cognisable in every Court, and there- fore in a Court of Mines. Mr. Holroyd in reply ; — The rule as to giving relief under the prayer for general relief is that the relief must be consistent with the specific relief prayed. By Sees. 11»4 and 125) of "The Mining Statute, 1805," any cross relief whatever mav be obtained in the suits in which the defendant is attacked. [Molesworth, J.— Does 13 1 V. R. Eq. 11. " 4 A. J. R. 20. 110. UUNN V. HAltVEY. 303 till' ciosH ri'lk'f extend to law as* well a» to eqnit.v pioceedlupi ?] Tlie iirovlHum of the Act i« of the moHt ample character. [*11J>]. The wlmle scojte ami I»(>lic.v of the Act are to have disputes of this kind decided iu the locality. [Molesworth, J. — Could not u suit have l)e«»n instituted in tliis Couit ?] rndoubtedly, hut this Court will not entertain n stilt «>f tins kind, when a local Court has jurisdiction, and is already seised of the case. In this colony nothing; has been decided on this point ; but Martin v. Powninp shows that the rijjht way to raise th»* question Is bv demurrer. Cur. adv. vult. m :mk. justice MOLESWDRTII :— This case comes before me upon demurrers by Mr. Harvey and the Nell Gwynne Quart/. Mining: Compan.> to a bill of Mr. Cninn and seven others. The bill states that Mr. Edwards, in July, 1X72, ob- tained a jfold-mlnlnj; lease from the Crown as a trustee for a comj)any not incorporated, called the Herald (Com- pany, to be taken, speaking generally, us now repre- sented by the plaintitfs, which company has been in occupation and workinj; the leased land from thence until February of this year ; that Mr. Atkinson re- covered jud^fuient In the County Court, Sandhurst, for 10s. debt and ISs. costs apiinst Edwards ; that in De- cember, 1873, Edwards sold his interest as a shareholder to (runn, and on the 2nd December paid his debt to Atkinson. Itut on the same day a solicitor, not em- ployed by Atkinson, assuming' to act for him, applied to the Registrar of the County Court, and obtained a certificate under the Act No. 345, Sec. J)3, and limil judj;- ment as for Atkinson in the Supreme Court for £1 8s., and for the fees. In the meantime, Edwards, who had ajjreed with his former partners to assign his interest In the lease as a trustee to Ounn, December 31, 1873, ap- plied for a consent of the Governor to his so assigning. " L. R. 4 Ch. 456. I'H I" 304 TORRENS CASES. I' The Ht»H«itnr, um fur AtkiiiHun, iHsncd a HitI fariuH on tlu* judKinciit, January 12, 1874, and d«'nv('i' ttlioriff wt up for Hah' the rijjht, tith» and int<*rr paid tlie deponit for Harvey, and acted aH hin Holieitor in the matter of ptir- chane, and Hubneijuently of procuring a certificate of title for him. The bill alleges that the solicitor, when he obtained the certificate from the registrar of tlie County Court and signed final judgment, knew, or had reaHn the land in (piestiim unitil further ordei*s. This bill was sealed April 13. This case involves difficult questions as to the con- clusive effect of the certificate of title. But I have to consider, under one gi'ound of demurrer, whether these plaintiffs should obtain any of the relief sought by this bill, having regard to the jurisdiction of the District Court of Mines, and the proceeding actually pending in it. Titles to mining claims and leases existed before, GUSN V. IIAHVEY. 306 but were placed on u dUTcroiit footiiiir by the Ai-t No. 2U1, which rreutt'd the pivneiit (/ourt of Miueti. It Hf'iMiiH to iiu' that the Hupreiiie Court hjm a eoiieur- iviit juriHdiotion witli (he CourtH of MiueH as to theHe titleH. It has been exeniHed, I nuiy Hay witliout question, in Mulcahy v. Tlie Walluilla Company '" (wliltli was <'ai'i'ied to tlie Privy Council), and various other catM's. On tlie other hand, I think tluit the powers of tlie Courts of Mines under the Act No. 2JM, Sec. 101, would authorise them to j?ive reli(?f <»n the facts of this case so far as this Court could. Taking; them as Courts of co-ordinate jurisdiction, though of uneipial di^'uity, according to some authorities to which I have been referred — Martin v. Pownin^f,'^ Stone v. Thomas."* Maguire v. O'Keilly^" — as betwtH'u the Courts of Chan- cery in the mother country and Itankrupt and Insolvent (Courts, the jurisdiction of the former is not ousted, but is generally not concurrently exercised in certain mat- ters within the jurisdiction of the latter ; and that may be decided upon demurrer to a bill in chancery. The relief prayed by this bill is a declaration of right, and that the defendant Harvey's certitlcate of title may be ordered to be cancelled. I do not think that this Court has jurisdiction to do so. The way in which I have relieyed from the inequitable effect of certificates is to order the holders of them to transfer. The next relief is that, in the meantime, the defen- dants may be restrained, by the injunction of this Court, from further proceeding with the suit in the Court of Mines ; and there is a prayer for general relief. The Court of Mines has full power to consider all the matters put forward in this bill as a defence to the plaint there, and to give cross relief (Sees. 124 to 129). Taking the Courts as having co-ordinate jurisdiction, this is a suit to stay proceedings pending in tlie other Court, very i« ArKUH. 20 Mny. 18(J8. "L. 11. 4 Cli. .SSC. 18 L. R. 5 Ch. 210. i« 3 J. A L. 224. H.TOIl.CAS. — 20 1W *('» s non TOKh'K.VS r.l.s/vN. inconvenient, and no ^i-onud for eonvenienre Htated. In Tlie I'nited ^VoIkinK Minern' Co. v. Tlie rrince of Wale* Co.,"" I had to coDHidcr nrKinuents as to a liill partly Beelvint; to i'ontrol proceedin^H in the Court of MineH, and overruled a demurrer, as some relief I would other- wise };rant was gou)j:ht. Ihit in this, I would not };rant the rest of the relief sought ; and restralninj? the pro- ceedings in the Court of Mines would be a mere assump- tion of superiority without any reason. I therefore al- low the demurrer with costs ; liberty to apply to amend within a month. Soli«'lt</in. Under Sec. lOG of Act No. BOl, a purchaser of land at a sheriff 'h sale uudor a writ of fi. fa. does not become the transferee nor can he he deemed the proprietor thereof, until such transfer is entered by the registrar iu the register hook. A sale h3' the sheriff under a writ of fi. fa. does not necessarily exclude the rights of an unregistered equitable mortgagee, wh(>si> right has accrued before the service of a copy of the writ of fi. fa. upon the Itegistrar of Titles. Patchell V. Maunsell (7 V. L. R. E. fi) distinguished. {*3] Where points of law are referred to the full Court for determination before the trial of issues of fact, the plaintiff should commence, and he has in every instance the right of reply. Quaere, whether the argument must not be confined to the points raised on the pleadings. Question of law raised on the pleadings. This was an action brought by the plaintiff to enforce its claim as equitable mortgagee, and for an injunction to restrain the registration of the transfer of a lease to a* G W. W. & a'B. Eq. 8. AS'AltuSAL UASK v. MORUOW. »07 the defciulant, uiiIchh Hurli trnnHfcr In* niiulc Hulijfct to a uotiftnitlon on the certltlnito of tltk* to Im' IwHued to the dcfeiidant, of the plaintiffs equital>le niortpint* n« nn enennihrance atTertlnj: tlie ItMiHe. Tlie defendant in his amended defence objected tliat a purcliaHe from tlie sheriff for value and without notice, under nn execution issued on a judjjment in tlie Suja-eme Court wlieu all the reciuirements of See. 10(> of Act No. 301 have been complied with, is not affected by an unregistered se- <'urity. The parties referred this question of law to the Ftdl Court before the trial of the issues of fact. The material facts of the case are fully set out in the judjj- ment of the Court. Hamilton for the plaintiff : — It has not been yet decided whether the plaintiff has the right to bejjin in proceedings of this nature, or as to what points the d«»fendant or the party raising an objection on a point of law is bound to adhere to. It has be^n suggested that under Ord. xxv., r. 9, the party may state one point of law on his pleadings, and at the hearing thereof he may raise any others he deems advisable. Per Curiam : — We think it well to follow tlie practice laid down with reference to points of law reserved. The plaintiff should commence, and he has always the right of reply. We doubt whether a party can raise any point save that distinctly raised upon the ph'adings. [The defendant asked for leave to amend the defence in order to set out a material averment "vvhiih was neces- sary for the determination of tiie real (juestion in dis pute. Leave was granted, and the hearing was ad- journed until February, 1887.] r*4] Hamilton for the plaintiff : — It is submitted that the purchaser from the sheriff for a valuable considera- tion cannot get a better title than if he purchased directly from the judgment debtor. The interest^ of the judgment debtor is affected by an equitable mortgage to the bank, for it has been held that such liens do affect land under the Act No. 301, although it may be impossible to register such liens : London Chartere(/ f^^lrff w w :i().s TfHllli:.\S f.XNES. Itiiiik V. llti.VfH.' Til*' fiiit tluit tlH> Hlirriir m«>IIm tli«- iiitci'cHt 1111(1 cMlatt' (if tli(> jiKlKiiiciit t(ir cannot o|H>r ate to ^'iv(> a hcttcr title tlum tlic (l(>blor could liiinHolf have ;;iv('n. Tlic HJicrilT cannot tranHf(>i' a larp-r cMlatc than the (l(>litoi' Iiad — non dat (|U(nI non halH>t. Accord- inu t<» the form ^ivcn in the tlftiMMitli Hclicdidc of the Act, tlu* Hhfrltf merely HelJH " the cMtate and IntercHt *' of the debtor, rndonbtedly if the defendant liad huc- ceeded in ^ettin^ the traiiHfer ent(>r(>d the plaintiff would iiave been prevented from aHHeiiin^; itH Inteii'Mt ; but the defendant had Htopped Hhort of that act. Patcliell v. MaunM(>l,'* alllKMi^h at tlrHt Hi^ht an authority u);aiuKt the contention of the plaintifT waH d(>ci(le(l upon the ^r(»und that the defendant had been guilty of luchen. According to Kiclvham v. Tlu; Qtieen,-' the purchaM(M' from the HheiitY \h not in a very Mtron^ position until lie jjetH liiH trauHfer rej;iHtered. Helm and Topp for the defendant : — The defendant liaviuf^ |MirchnHed for valuable couHideration and with- out notice of any encumbrance, cannot be prejudiced in liiH title by an e(iuitable niort^ane. This Act must be treated by itHelf, and due etTeet jfiven to the policy of the Le^fislature. According to the provisions of Sec. 411 a written iuHtniment intended to operate as a clmr^je upon land is absolutely void unless registered ; if the plaintitf's vh'w be correct, then a charge not in writing will be better than a written instrument, and although unregistered will be just as effectual to bind the land as a registered document. In Keglstrar of Titles v. Pat- terson,* It was said : *' The general object and intention of the "Transfer of Land Statute" are to simidify titles to land by making them depend wholly on registration." This ["5] Act does not protect unregistered charges, and as between third parti^'s it does not recognise a mortgage by deposit of deeds. In all cases where an equitable mortgage has been held good, the charge existed be- J 2 V. K. E. 104; 2 A. J. R. 60. a 7 V. L. R. E. 0, 3 8 V. L. R. E. 1. * Ap. Ca. at p. 110 ; 46 L. J. (P. C.) 21. SAintSM. II.ISK V. MitllllOW, aui) twt>«'ii thr iiiorfKii^or i\iu\ uutrtfinfUH*, iin«l I hero wuh no iiitcrvciitioii of a third party : LoikIou ('liartrtt'il Hank V. lla.vcH'^ in not applirahlc t«i a raHc like tli«> pr«'M«>nt. Thi'i-t' Ih uo authority wliicli <>xt«'ii(lM ho far an to Hay tiiat a pniTJuiHtM' for value witiiout notir<> in to li* p4»Hl- pon(>(l to tli(> pei'Hon who lucrcly Iuih an cquitaltlc inort HmH-'. It in (>ntii'<'ly a tpicHtion of notice. The defendant huH fultlllt>d all the I'equiHiteH of the Htatute, hut the piaintitT han nej^lected to take any HtepM to prenerve itH li^'htH, until the lant moment, when it Hoekn to prevent tile defendant frtmi p<>rfe('tinK hin title. If a eav(>at had Iteen lodf^ed, the duty .would have devolved upon the ndaitt then to take dtie eaiv. Sec. 'M providoH that inHtruni(>ntH have priority according; to dat(> of re^^iHtrft- tion, and not according' to the date of tlu> inHtrumentH ; and luM'e the deftMidant in prior to the piaintitT, an he lian prewiited the luHtrunient f(»r re^lntration tirnt. A purcluiHer at a Hheriff'H Hale would never be Haf(? if he <(>uld not jfet a jfood title. Accordinji to White v. Ney- Ion" "There is nothin); in the wording of the Act" {which wa8 of a Himilar character to thiH) " to exclude a claim upon an unwritten equity of wldch the subsequent rejjiHtered purchaner had notice." The duty of the holder of Huch an equity is to jjlve notice. A concealed instru- ment cannot defeat a bona tide piirchaser : I'atchell v. Maunsel.^ That case jjoverns the present. The statute alters the old law. If two purchasers bought the same piece of land from the owner, and both paid the purchase money, he who first K"t the <'onveyance would get the land. [Holroyd, J. — You have not jrot the ciHiveyance, you have stopped just one step short.] The plaintitf has not jjot the conveyance eitlu'r. and we have the better equity. The rej^istrar was bound to enter this transfer, and had no right to heed the notice given by the plaintiff. The registrar «'annot know any- thing about an unregntered charge, and he is not sup- » 2 V. R. E. 104; 2 A. J. R. 60. «11 Ap. Ca. 171 at p. 176: 55 L. .T. (P. C.) 26. ' 7 V. L. R. E. «. *f» ■} :ilo TOHKf:\M r.iSKH, |>om wiiit until a miip|miimmI [*i\] « liiliii Im UMn'i'taliii>i1. Tlii'iM* Im no liijuiirtloii in iIiIm nim*. Loul^iuK iit tlir form |)t'o\i«|«Ml in till* ITith Mrlifilnif to tlh* Art, it will !><• m(>('|| that (li«> HlH'i'iir |iiii'|MirtM to ronvt'.v nil "tli** cMtatf and inti'icHt of K. v.," and If tlnM«* Im- any fncunihranrcM tlii'V niUHt Ik* duly net out. and in tli<* abM«>nr<> of Murli notitlratioii of cxiHiiuK rharKi'M, the piiiThaHcr gctM a clear title. [Ilolfoyd, .1. — If till* judgment delitor liad a had title, could the Hhei'ilT ^ive the {turrhaMT a ptod one ?] IN'rhapM not. Wo contend that the plaintitT Iuih no intercMt wherewith it ran niatniain thiH action. An equitable nKUtpi^'ee ran p*t a le};al uiortKaKe undp;iHter aH of courxe ; he han " a judicial duty iinpoHed on him of examinint; into the validity of iuHtrumenlH prenented to liini f»»r re;;i«tratiou:" Ex. p. Itond.'* Sec. 42 docN not apply to thiH catH* iit all. Cur. ndv. vnlt. [(N)unHel for phiintifT Hubnequently handed to the Court the cast', In re Klllot."] Tile judgment of tiu* Court (Hij,'inbothani, C.J., Hol- r^^yd and Kerferd, JJ.> wa« delivered by : — Hif;inbothani. C.J. — The plaintiff be«^!iine eipiitabh' morttfajJte<» on 7th Dtn-oniber, IHH't, of a lease to Marjraret McDonald, the lease Iwinjr then d«*posited with ])lalntitT by Robert 11. Calv«'rt, to whom the lessee was indebted, to secure payment of a promissory note for £1,1M7 'Js., then disi'ounted with tlu* plaintiff. Judjjnient was re- «overed on the 20tli April. 1SX«, nj;ainst the lessee, Margaret McDonald, in an action by the defendant, Thomas Morrow. Execution was issued ; the sheriff sold and transferred the lessee's interest in the lease to the defendamt Morrow, who Iml^ed the transfer for r<»Ki8^fntion at the Office of Titles. It was admitted on the arf^ument that such transfer was not entered in the « G V. L. R. L. at p. 4r,2. 8 A. L. T. (X S. W.» 5.1. ,\.ilWSAL liASK V. iWlinoll'. 'Ml rt>i;Ui«'r Ihiok l>,v tlir (liffiHlaiil Uiciititil Ulldm, l{i'){iMtrar i»f TitlcM, iM'foii* tlx* [*7) ('oiiiiii«>ii«'(>iiMMit (if (liU iit'tlon. Till' iiclioii Im bi'iMiKlit l>,v III*' pliiiiililT to I'lifoi'cf it» rIaiiiiH iiH «'i|iiltiilil(> nioi't^iiK''!'. hikI fiM* an iiijiiiictlon to iTMliaiii (lie icKiNtialiou of tla* tiaiiMfcr of lla* l(>aM<> to the ilcffinlaiit .Morrow. T)m> point ralMcd l>,v tlh' ii- (lain .Morrow, and which we liavc now to (Ictcrniinc, in wlictlicr a iMircluiHcr fruni I lie Hh(*rilT for valu(> and witlioiit notice nndcr an ('.xccntion iHMncd on a Jnd^uicnt of the Hnprcntc Court, wlicn all the r('(|iiir('nicntH of ih(» IlMith Hcclion of the .Set No. 'M)l have liccn complied with. Im or Im not alTected hy an nnretflHtered Hecurlty. The point of law tlniH Htated \h uot eaHily applied to thu factH of th(* present ('iiH(>. It Ih now admitted that the nioHt important of all the re<|uirementM of the KMith hi'O- ti(m, namely, the entry (»f tlie trannfer in the ren;iKtep h(H)k, luiH not lieen c(»niplied with, and the pl(>adin);M rh»tor tlu'wof nntil the tranHfer has lH»en received by the re^fistrar and entered by him in the rejfiHter bw»k. Hefore that time, and lM'for(» Hervlnfj (»n the rejriKtrar of ji writ of tieri facia h or of a decree or order of the Supreme Court, the land in not bound, charjjed or af- fected in any way by the execution or by tin- lodp'UJent of the writ for execution. The land, etc., is bound by the service on the rej^istrar of the copy writ, and continue.H to be bound until entry of the tranHfer or the expiry of three months from the day on which the copy writ wag served. The sale nnder the wiit itself does not affect the rijiht of any purchaser for valuable consideration (inelndinf; an ecpiitable mortfja^ee) whose ri},'ht has ac- crued before service of the copy, even though such pur- <« 312 TORRK\H C.itiHS. eiuiHcr had iictiial (»r (>oiiHlru('tiv<> ii<»tic4>of the l(Mly;<>ui(>ni of Hu' writ for ('xcmtlon. A{j;ainHt Hiich a purchaMcr, tlu' iMinluiHcr from tin* HluM'lff acqniivH n<) ri^ht until lu; jjctH IiIh Iransfcr coinplctcd by rcjjiHtration and luTomcx tlu* transf«M«M' and the proprietor ; and «»v«'n tlu'n tln'rc [*H] may Im* caHcs in whirli liiH titli* to tlie land, etc., may he impugned, and lu* may be ordered to re<'on\vy ti> nu ('arli«*r piircliaHer f«»r valuable couHideration of wIiohc eharjje or encumbrance he haw had notice. The pur- chaser from the HheritT in fact only buys a charf^e upon the judgment debtor's interest in the land, and that «harj,'e is clearly subject to any earlier equitable or le^al char}j;e. It is by virtue of the lanKua^e of tlie statute that the moment the transfer from the sheriff to the purchaser has been entered on the register, the pur- chaser becomes the transferee of the land, etc., and is t<» b<' deemed the proprietor thereof. The defendant Morrow maintained that having lodfjed liis transfer for entry, the rejjistrar oup;ht to have «'nteriii)tifr :— Mnlloson. KiikIiuuI & Stewart. Solicitor for the defoudant :— \V. A. EvaiiH. 7 V. L. K. E. C. CAMl'Ur.LL V. JAUllETT, 313 ViCTOUIA, ISSI. — HoMlOVf), J.] [7 V. L. R. (E.) 137. cami»bi:ll v. jaruktt. Will — Count ruct inn — Wnif nf necfmt>i — JurisiUrtiini — •' TfioiJifer of Liiml Stiituti' " — ( 'onrrfinif rrrtijinitr — Procuriil hi/ jniiid — I'l.renitof — ( 'nuts — l\.r/iihits. A tcstatiir. wlm was owner of ji lilock of liiml, di'visi'tl to hij« son tliat portion of it wliidi wan o<'(iii>ii>il hy Ii'ih Hon at tlic tcstator'H 4li>iitli, and il)-viHfil to liiH ;litcr tlif portion of it occnpifd liy liini- s)-lf. Till' testator liati. tinrint; iiis iifi'tinx', «-x<-rcisi'(l a rit:lit of way ovor i>orti<>n of the land in IiIh son's occupation to ttivi' accesH to tile iainl in his own occupation. Held, that under tiit> will the dantrhtcr had the same ri^lit of way of necessity which had lieen exercised liy the testator during his lifetime. A Court of Equity hnM no power to correct a certiticate of title procured by fraud, hut can nnike a dey the danuhter to rectify the certilientes issued to her lirother. as not correctly show- iiiii the portions t«i which each was respectively entitled, the defen- dant (the exec-ntorl was ctrdered to pay the costs on the ^'roiind that he did not see that the phiintilT sufficiently \iiiderHtood the apiilica- tion she was siuninv. At the conclusion of a case, the ilefendant la entitled to have his exhibits hack. Suit by riarrict raiiipbcll ji;j:jiinst (icorj^f Jjusv'lt 1(» havo two <'«'rtirtrat«*M of titl<» issued, jia the plaintiflf al- l<\ir(*i'esentations of the defendant, coi- i;nint('(l to the cxenitors, t c lUffinlant «n^j;«'Ht«'(l to tlu' plaintifT that the land should he hiou^ht under the "Tran»fer of Land Statute," and certiticates isHiied to the plaintiff and defendant respectively of the portions of the land jMissinf; to each under the will. The plaintiff assented to this. The defendant swore that at the time h<' proposed this he explained to the plaintiff what por- tions respectively each was to have. This was, however, al»solutely denied by the plaintitT. It was further sworn by the defendant that an express apreement was arrived at between him and the plaintiff that the ])laiutifF should lane the southern twenty eifjht feet frontage to Percy street to the full depth of the land, and the deft^ndant ttic "orthern thirty ei^ht feet to the full depth of the land, Includint,' the road and half the store at the rear, in consideration of his jiving up his claim to a portion of t^he southern twenty-eijjht feet, wliich the defendant h;»n Jarrett; and that the defendant had never been in possession ■f" vm^ ' -i f :3i6 Toiint:.\H v.ist:^. ov (HTiipiition of tlu' noi'tlKM'i) '.\H f»»»'t of the block, Iml only of tliiit |)(»rtioii of it liaviiiK a frontage of 2H f(><>r ♦o l»('r«\v HfnM't, by a depth of i:{7 feet (5 iiiclu'H. (Vrti- tlcatcH ['HO] of title were iHHued — one to tlic» defendant. ;;ivin.t; liiin tli(> nortliern 'AH feet of tlie land, inelndin^ half of the Htoi'(> at (he rear and the whole of the rctad, ami tlie other to the plaintitT, K^vin^: her a life estate in the Honthern L*S f«'et of the land and the portion of the store Ntandinj; thereon. T1hm'«' waH ronHiderable eontiiet of testimony as lo what )>ortion of the land was occujaed by the defen- dant's works and materials i\t the time of the testator's death, and as to wluit portion of the land was called " the yard." Dispntes arose between the plaintiff and the dufeu dant siibse(piently to the issne of the certifleates of title, aind the defendant refused ai'cess over the road to the ]>lainti(T, and locked up a door and gate leading from her portion of the land on to the road. The plaintlfY Mubmitted that the certificates should be corrected by tlie Court, so that the certificate issued to the defendant should comprise th<' northern jMirtion of the land, with a frontage t(» Percy street of 2M feet and ai depth of i:{7 feet a inches, and the certificate to the plaintiff, the remaiining portion of the laud, without any right of way over the rosid, being reserved to the defendant, anid jMjiyed thsit the defi'udant be ordered to deliver up his certifldite of title to be corrected. Mr. Webb, Q.C., and Mr. Neighbour for the phaintifTs:— It is <'lear thsat by the will the whoh» of the store at the lejar of the ])remises waas givam to the plaintiflf, and the defendaant haas inajn'operly procured aa portion of it to be inclaided in his c(M'tati«'aite. The will really gives nothiiag iia Percy sti'eet t«» tha' ah'fendant. The batter part giva's everything in Tei-a-y sta-eet to the plaaintilT : and if there is any repaigiaaanay in the jn'ovisions of the will, the latter l>a'ovisions lainst pa'a'vaail over tla«> foniaer. The hitter provisions ca?t down the a'staate given to the defendant to aa mea-e reiaaainder. [Mr, Jaastice Holroyd: — My pi'e sent impi'ession is thaat in the construction of the will CAMVmUJ. V. JARUKTr. :n7 but tiM' wlioh' of tlu' iron ntoiv In jjlvt'ii dir«M'tl.v , (hat rifiht ]»iiHH(>d by the will an w way of nt'((»H«ity.J We contend we arc <'ntitled to «he road abHolntely. TluM'e was at the testator's [*141] deatli, at most ai joint oo- (Mipanry of it by tlie ti'stator and the defendant, and snrli a joint oeetipaiuy would not satisfy tlw words of the will. In order to |>ass tlie road to the defendant, he shonld by the fraud of the defendant, and the plaintiff should ^et her costs. Mr. a'lieckett and Mr. Topp for the defendant : — Tlie ])laintitT <'Iaims too much by her bill ; she asks for an estate for Iif(? in the road, and does not even offer to j,'rant tin- defjMidant a rijjht of way. The defi*ndant is entitle. A certificate of title is a new kind of docmnent of title issued by a public officer, IP'f :ns nHfUHWs CASES. i': if niul Ih not nwuh' liitt*r pnrlcH llk«' ji convi'vaiiec; if it is to Im* ivrtiti«Ml or iiltrnMl in any way, tin* U(>}j:iHti'ar of Tltlt-H, tln' ot!lr«'r uii(> nif^nn tin* dornnicnt, Ih a nct'eHwary party to f!u' Huit. If tlu' foni't holds that tho i»hiintlff is ontlthnl to a rip:lit of way over tlic load, it slionld hv a qnalillod v\v,\\\ of way: (lalt* on Easi'nu'ntH (.'th P^d.), I^'t' — otherwise tlic plaint ifT may insist un the defendant not nsing the road at all. [•142] As to rosts, the jdaintitT has always elainied nioie tlian slie wais entitled to. and has made an nn- fonnded rhai'.ue <»f frand apiinst tie defenatli. I alxo tliink that it waH tin- Intnition of the tt'Htatoi* that thf philiUltf Hhouhl havo th«' Htoic with tin- rij^ht of acn-sH to It ovrr th«' road. That inadr It iiuproptT to bhuk up thr ri;;ht of iwrcHS to thf MtoiT. and to retain part of the Htore. The ilrfendant Is entith'd to the hind to whhh I have already referred. Huhjirt to a rljfht of way over tlie road Hunilar to the rlj;ht exertiHed by the testator In his lifetime. It is said for tlie defendant that if the ri^lit of way Is jjlven to the [*\4'A] plalnlill' over tlds land, she nn»y Insist on no ohstnictions beinjj: placed on it, bnt 1 will consider liow this Is to be prevented. Ah to the costH, the defendant was nn executor, and if a certificate of title was obtained to the land, he sliould hav»» obtained a proper one. He proposed to the plalntitT that certificates should be Issued. She asked hhn about the division of the land. He said that she knew that they were to be according to the will. I do not think that any one could have understood from tiiat <*onversatlon what land was to be given to her, and wlujt was to be kept for the defendant hinis|)li(iitioii r«M* tllf riTtiJIriitt' of title. Fop that I'l'iisoii I Hliali ^ivc roNtH to the plaiiititT. I hIuiII not make a fmiiial drcicc at |)n's:-iit, Ixit will roiiHidcr the furiii of il«'4r(>c I Hliall make. Mr. .IiiMlIrt' Ilolfovd : — I have already wtiited the ^'IoiiikIm of my (h'rision, and Hhall iMiike the denee in the t«'iinM I havt' minuted. N(> furtlier direrlions heinj; re Kci'ved, tin* eoHtrt of nnit will ineliid(> the eowtH of work InK out the (h'iree, timt Ik, of preparing; anti exetelinK the necesHary tianHfei-H and other instrnmentH, and of pr»'parin^ i'ei"titirat"H of title, confonaahh* to the foi'i-- ^oiii;x dec larat ions, and the rosts, if any, of the reference to the .Manter to Hcttle. [•144] The measnreuientw of tlie land, a« Htated in fh(> liill, in the plans, Kxliihits .\ and <', an par- tinilarH. In framing: any neressary transfer or instni- meiil, tile true nieasnrementH should he adopted with this proviso, that the depth of the whole Idork, as ^iven in the cerlillrate of title, viz., I4S feet t» inehes, must not he varied unless hy mutual rnti(med at the eastern end of the said bl(H*k. And declare that the jdaintitT is entith'd to b«' re;jistered under the said statute as the proprietor of an estate fy iicr or iliiMii, or licr or tli«>ir t<>ii- iiiitH, to piiHs iiiid rrpiiHH with or witlioiit horncH, nirtH, waKKi»>^ iiiul other nirrhip'H. huleii or iinhHleii, from Vvrvy wtrcet to the Hiiid »tore, o\vv that part of tin- hinil occupied Uy tlie (h'feiulaiit. whic.li iH descrihed in tlie Haid hill aH II road, for the piirpoHe of In^ieHM, e^reHs and ri'^reHH to and from the Haid to he re;;iHtered under the H]iid Htatnte an the proprietor of the remainder in fee Himple in both the ple(H>H of land in which the ]»lainlitl' is hereinlH'fore de- clared to be entitled to an cHtate for life. Decree that plaintitV and defendant do rcHpectively execute all hucIi tranxferH and other InHtrunuMitH, and do all Huch other thinjjH aw may be neceHwary to jfive effect to the fore- uoin^ declarationH, and order that (ho ]>laintitT do pre- par(> the neceHHary transftM-H and luHtrtimentH for that purpoHe, and submit tlu> Hame to the defendant for ap- proval and execution ; but refer it to the Master t«» settle such transfers and instruments in case the parties ditrer about the same. Ordt'r the defendant to pay to the idaintiff her costs of suit. Kefer It to the Master to tax the said costs. Liberty to apply. Mr. a'Heclvctt asked that the prolwite of tlie will and the defendant's certificate of title, which had been put in as exhibits in the cause, be ^iven np to him. Mr. Neighbour objected that the c<*i*tilicate should not be given up. It was obtained by fraud, anid was the very document [*14i>] sought to be rectitied. If given up to the defendant, it might \h' encunibered in some way, so as to throw obstacles in the plaintiff's way. Mr. Justice Uolroyd : — 1 suppose there is a lis pendens i-epistered. I have no power to correct th<» c'»r- tiflcate itself. As the suit is ended, I think the defen dant is entitled to have his exhibits back. Order made. Solifitors for the plaintiff :~U. H. Suiitli for Lyue, Portlaiul. Solicitor for defendant :— Reynolds. H.T0B.CA8.— 21 Ml 1 Wf^ *■ 322 ronnK.s's r.i.sK/f. I I t VicToiiiA, IS"!),— MOI.KMVOIJTII..I.1 [r> V. L. U.(!v) 1 \7 CULLKN V. THOMI'SON. '• 'iinuHjir nj Lund t>tiUiit» " (\u. :i()l), «•<. H), CO — I'luud in itci/uirinif rtitijuuif — AduiHc fiuMiinMion — i iitunt — Muitijoijb II nd iiKirti/injie — t'oimtnivUte notice. Till' wunl '• Iniiul " iu H»th. 4l> uiitl W of the " TrHiixt'cr nf l^iin ! Sttitiili'" (No. 301), tlot'M not lii iraiiil of tlit> yiiiK |mri> ill iir(|tiiriiif{ tillo. Chuiiiluy v. i irelnucu ,6 V. I . U. (I).) i>7 , diHtin Kuikliul. St'inlilc, the |irut*'rtioii iifTonli-il \>y St'c 4'J of tln> " 'i'riiiiHfcr of I.hikI Siiiliilf" i.N'o. U(il) to II t<-iiiint ilofs not f.Mi'iitl to |iiot*-i'i the titif of till- lilllillofil. A., a niiiiHf ""oil proiirictor of liind iiny rrmi It., iiimI wiih iniliiccil l>y him to Hii;ii a (loi'iiniciit wliich li<> hii|i|H>M*'il to lii> a Hi'cnrity. Imt wiiitli wii.s a ii-aiiMl'i I- liy him to It. ol tlii' IiiikI. It. Iiiid hlnist>ir ri-iriN iTcii art |iro|ii-li>toi', anil inoitKiiKi'il tlit> piiMiiiTH to ('. Thf \>if iiiiNi'H wt'i'i' tlii'oii;;honi in the ocrninition of a wt-i kly tiMiiint of .\.. who pniil I'l'iit to him. rpoii tlii' iliHcovcry of K.'m frainl, A. liliil his bill iif^iiiiiHt It. and C. tor redcnipLiun. Htid, thrtt Imt i"«r tlio "Tniniifi r of Land Stutiitc" (No. :itil). s. c 60, C would. Iiy the toiiniioy, hnro hot'ii afTt'Ctod with constructlvo iiotiri' of .\.'m t'ii;htH, lint that that ni-ition lU'oti'itfd him. iiml that till' inoi'ttraK)' to ('. wiih ^'ood an iiKninHt A.; and diiirf fov I'l dfiniiiion niadi' ii|ioii payniiMit hy A. or It., ami if hy A., thi'ii It. ordi'ri'd to rt'ptiy him. Suit by •liiiiu's ('iillcii iiKiiiiiHt flniucM William Tliuinp M)ti and Jolin (iiill Joliiison for a declaration that an inKlnmn'nt of [*14S] ti-anHfcr abHolutc in form waH l>.v wa.v of inortpiy;*', and that plaint ItT waH entitled to re- d(*eni the land conipfiHed therein and to be re{;iHt(>red as |H(»prietor in fee free from encunibrauceH, and in the event of the deftMidant Johnson beinj; held entitled as apiiimt the plaintil? to a valid mortKa|»', th(>n for iui aeeonnt of what waH dne thereunder ; and that the de- fendant Thompson mi^ht be ordered to pay the amount with costs, and tluit upon payment bein^ made by tho defendant Thompson or the plaintiff, the defendant Johnson mi^jht l)e ordered to rxeetite a proper memor- andum of di8ehar}j;e, and that the defendant Thompson mi^ht be decreed to execute a proper instrument of transfer to plaintiff. ftv^l VULLKN ». rHoMtaoN, 8i8 Tilt' fiiilM of |Ih> niN«>, \>hi
  • lotiii of VM), wliirii Tiioin|h Moii iiin(i«> liiiii, IcMM diMciniiii, (itliiii^ liiK proiiiiHHorv nolo for i'M), It (ii'poHil of liiH (crlitlcnti' of (ill«>, aiui ii doni- iiiriit uliirli TlioiiipHon i-cpi'i'Mciitfil (o !><> a HiMiiiily on ilic IiiimI, )Mit wiiirli WHH, ill fiirl, an abMoliii«> hanHfcr of it lo TlioiiipNoii. TlioiiipHoii. iiiilviiowii to lli«> plaint iir, i-(>^iMt<'r<> i«> liiiiiHt'lf, and then inoitKap-d tli«> land for £l(Mt to tlii> defendant •IoIiiihoii. On tia* plainlilT'H proniiHHor,v note iMM'oniiii^ ilu)' he otIVi-cd pavinnit to TliiMiipHon on re- lam of tlic plaintitT'H rcrtiticatc of titii', Itut waH from tiiac to tiiiK' pnt uiT with cxciiMrH iim to ||h> prcNlnrtitMi and return of IiIh ccrtititatc of titlf, and «'VtMitiiallv din- nivcrrd tlic fraud, and iiiHtituti'd iliiH Hiiit. Tli<> land was all alon^ in tlic poHHcHHion of a (iMiaiit of tlic plain- litr, \vlu» d(»\vii tu tlu> tinic of tlir Huif paid rnit to tlic plaintifT. Tlu> defendant ThoinpHon anHwered, but did not appear at the hearing. .Mr. Webb, Q.C, and Mr. Topp for tlie plaiinliir :— Tlie plaintitr Ih entitled tu tlie relief Houglit apiinHt the defendant ThonipHon, wlio doeH not appear. Ah to the other defendant .luhiiMon, however, the faetH do not ihow a eiiMe of Hiinple mortgage to him, but a mere tabula in naiifragio ; a Heeurity talcen for a ixiHt, and almoHt a hopelegh*, debt. If one of two innocent partieH \h to Hutt'er, he who luiH given oeeaHioii to tlie tranHaetion which neceHHitateH tliat rcHult ghuuld [*14!>] Hiiffer. If .lohiiHon'H mortgage he now 8ct aside, he will be iu> wors^' olT than he wan l>ef(M'e it waH t'Aecuted, inaHinuch aH he advanced on it only aH much as he received back in payment of an antecedent debt. The circunistances of this case show fraud by Thomp- son which is excepted by Sec. 40 of the " Transfer of l^md Statute '' (No. 'Ml). That means fraud on the part of either vendor or purchaser : Chomley v. Firebrace,* a ' 5 V. L. R. (E } 57. IMAGE EVALUATION TEST TARGET (MT-3) 1.0 !f 1^ iiM I.I 1^ 1^ m 2.2 12.0 1.8 1.25 1.4 |,.6 •• 6" ► v] <^ /2 / oSa ' l> y >^ Photographic Sciences Corporation 23 WEST MAIN STREET WEBSTER, N.Y. 14580 (716) 872-4503 \ u.. i9 ■PHP wm 324 TO It HENS CASUS. fraud in nn.v ikmsoii whereby the ov\uor is deprived of his eHtsito. [Mr. Justice Mole«\vortli : — Is tliero not some provision wliereby tlie fund would be responsible for passing a forj^ery, by whieli an estate niijiclit be trans- ferred?] There might be an action for damages against the registrar (Sec. ]4<>), but if Thompson, as intended mortgagee, is to be regarded as a trustee for Cullen, the fund could not be made liable : Sec. 151. Further the plaintiff has been in continuous occupa- tion of the land by his tenant, and in adverse possession by him against Thompson as owner, though not as mort- gagee : Robertson v. Keith,^ Staughton v. Brown ; ■'• Colonial Bank v. Roache ; * and by Sec. 49 the certificate ». '? title is made subject •' to any rights subsisting under any adverse possession." Under the circumstances, l^'iuson had constructive notice of the plaintiff's rights. i .. 'f^s put on inquiry, and would be bound by all thai ii . ould thereby have learned : Daniels v. Davison ','^ Taylor v. Stibbert ; ° Smith v. Low ; ^ Jones v. Smith." Had he inspected the property, or had a solicitoi been employed, the tenancy would have been known, and, through it, the plaintiff's title. On these grounds, the plaintiff is entitled to redeem Johnson on the same terms as he would Thompson ; and if so, Johnson, who had re- sisted the plaintiff's right to redeem, should pay the costs of this suit. If the Court thinks otherwise, then plaintiff is entitled to redeem Johnson on paying what is due to him, having credit for the sums already paid, and Johnson should be ordered to reconvey upon pay- ment by plaintiff or Thompson ; and if plaintiff pays [*150] he should have a right over, as against Thompson, to recover tne amount of such payment from him. 2 1 V. R. Eq. 11. 3 1 V. L. R.. L. 150. * 1 V. R.. li. 165. » 16 Ves. '240. «2 res. J. 440. '■ 1 Atk. 4'JO. 8 1 Ha. 43, 05. CULLEN V. THOMPSON. 325 Mr. ii'BiH'kett for the dt'fendant Johnson : — The nefjjlip'nce of the plaintiff pive occasion for the fraud. Kobcrtson v. Keith " confines The operation of Sec. 49 simply to the tenant or person in occupation of the land. It cannot be «*ontended that the tenant protects not only his own interest, but also that of the person from whom he liolds. The tenant's interest may stand, this defen- dant havinjf no jrreater riffht against him thau the plain- tiff had. The questions of •' notice " and " tenancy " are distinct, and cannot be argued together, t'^ec. 50 deals with notice, and Sec. 49 does not, but only refers to ques- tions of tenancy. There was no fraud on the part of Johnson. The plaintiff intended to mortgage the property, and did in fact execute a transfer, trusting to tlie defendant Thompson's honesty. Thompson was a trustee for the plaintiff. No question can arise as to the adequacy of the consideration given by tliis defendant for the mort- gage. He is a purcliaser for value without notice, and the question of value will not be considered by the Court : Bullock v. Sadleir ; ^^ Thorndike v. Hunt." If the mortgage to Johnson be set aside, he could not be replaced in statu quo with regard to the past debts which formed part of the consideration for that mort- gage. The omission to employ a solicitor cannot be con- sidered evidence of fraud. No inquiry by Johnson would have elicited from Thompson the fact of his fraud, and a solicitor if employed would not either, noT would any inquirj' of the tenant. [Mr. Justice Molesworth : — Inquiry of the tenant would have elicited that he was paying rent as a weekly tenant to the plaintiff, which would have been inconsistent with Thompson's title, and would be constructive notice that Thompson's title was incomplete.] A purchaser is not bound to inquire of the tenant, his landlord's title ; he may purchase sub- ject to his tenancj', whatever it may be. [*151] » 1 V. R. Eq. 11. 10 Arab. 764. 11 3 De G. & .T. 563, 570. 326 TOKRKXS CASJiS. 1 1 Mr. Webb, in reply : — riuler the wtainte, in caHt's of fraud by anyone, wliether vendor or inircluiHer, the pur- chaser Ih not protected from incpiiry. [Mr. Justice Moh'sworth ; — In Choniley v. Firebrace,»^ the fraud was in tlie transaction between Murpliy and tlie defendants, but liere it is in a transaction anterior to tliat with Jolm son. A(!cordin}; to your arpunent, if the property went throu^li a lonj; series of transfers after Thompson's fraudulent dealing with it, the plaintiff could impeach them all.] We merely say, that in such case, the pro tection of the Act is taken away, and the parties are remitted to their position before the Act. Then, in rely- in{( uplaiutill" aiul Joliuson, I shall diroct the ordinary account of what is du«' Johnson on account of the inortpij^'o of lUth July, 1.S7S, jind that Thompson pay the amount thereof as th(? Master may llnd ; that upon payment of it and interest within six months of Masti'r's certificate by tlie plaintitT or Thompson, and of hiB costs of suit, Johnson stiall execute a memoran- dtnn under the Act No. 'M)l of discharge of tlie mort- iii^iH", and Thomjtson shall grant a transfer of the land to the jilaintilT ; that in the event of the plaintiff paying the debt and costs or any part thereof, Thomj>- son shall forthwith i»ay him the same, deducting the sum [*154] of £'M) in bill mentioned. Order the defen- dant Thompson forthwith to pay the plaintiff his costs of suit when taxed and ascertained. Refer to tax above costs of the plsiintitr and Johnson. Direct that in de- fault of payment to the defendant Johnson within the time aforesaid, this bill be dismissed with <'osts as to him. Liberty to apjdy. The account seems, so far settled as to what is due Johnson, that I might pro- bably make the decree for a calculated sum without reference, but I must make a reference in order to bind Thompson. Solicitors for the plniiitiff :— Glllot & Snowden. Solicitor for the defendant Jolmson : — Braham. Victoria, 1879.— Molesworth, J.] [5 V. L. R. (E.) 38. GILES V. LESSER. " Transfer of Land Statute " {No. 301), ss. 106, lOT—Ee.fistration of fi. fa. — Sale hi/ sheriff— Official assignee not a purchaser for value. Sec. 106 of the " Transfer of Land Statute " (No. 301), does not avoid a sale by fi. fa. as to rights of a debtor ; but only as between a purchaser for value from the debtor and a purchaser from the sheriff. Therefore, where the oflScial assignee of a debtor filed his bill against purchasers for value from the sheriff under fi. fa. to set 880 Tonnnxs casks. tho Hiilt> iiNiili'. updii the uroiiiKl tlint tlidiiuli tlii> ti. fa liail l>rt>ii duly Mcrvt'd on llic n-Kistnir *\u> entry ut" the triinsfiT Innt not Itot-n uniitc '.vithin tlin'<> nionth.-i tlicrcal'tfr, tlit> hill wiih diNniiHsri! with COMtM, Tl\. rnit.'.l Ilaiul-ln-Hiiml ('<.. v. National Banlt 12 V. L. K. K<|. 2UG| Collowcil. Hill by llolK'if (JIlcH, i»Hsl;;n('(' of tlio cHtate of Ocorjjf Nlrklcn, a^jiiiiHt Abraham liCSHfi', Louis Lessci', and Richard (JibbH, lJ('j;iHtrai' of Titles. [*'.VJ] On tlic Sill Noveinbei', 1875, Nitkleu obtained a lease under the "Land Art, 1H(»5)," Hec. liO, for seven years, of i-ertain (.'rown lands in the county of Dundas, with the rijjfht to acquire the fee. On the .'ird January, 1S77, Nicklen, with the consent of the Governor in (Council, niortpijjfed the lands to the defendants, A. and L. Lesser. On the <»th January, 1877, a writ of fl. fa. was issued in H suit of McLean v. Nickleu and subsequently cancelled; and ui)on the 10th July following, a new writ of tl. fa. was issued, and a copy thereof, with a statement of the land thereby aft'ected, served npou the Registrar of Titles, and by him entered in the register book, in ac- cordance with Wee. lOG of the "Transfer of Land Sta- tute," and such writ was lodged at the sheriff's office on the 11th July. On the 18th September, Nicklen'.s interest in the land was sold by the sheritf, under the writ, to W. J. ^Nleek, who re-sold shortly after to the defendants Lesser. On the 4th October the sheriff, at the recpiest and by the direction of Meek, signed a trans- fer of the land to the defendants, reciting the writ ol the (5th January, 1877, instead of that of 10th July. The transfer was lodged for registration on the Otii October, but was refused for the want of consent of the (rovernor in Council. Before that could be obtained, the three months from the service on the registrar of the fl. fa. had expired ; and on the 22nd October an- other copy of the fl. fa. of the 10th July and a statement dated 22nd October was served on the registrar. The Governor's consent was obtained 23rd October and en- dorsed upon the lease ; and upon the 27th October the transfer was duly lodged at the Titles Office. On the i£4::.iii ': t ■ tilI.ES V. LESSKH m\ *1\)\\\ OrtolMT N'lrklcn'H rstatf was placed undrr HtMnu's- (ration. Tlu' Tith's OrtliT r«'fiiH«'(l to rcfjlHtcr the transfor. upon the ^moiiihI that tlie writ and Ntateiiietit lodp;ed I'L'iid ()rtol)er ivquired (lie (loviM'nor'w rouseiit to its rej,'iHtration ; and on the L'.'itli April, IMTM, the transfer wan \dthdrawn, hnt re-lodp'd on the next da.v. The Oltiee of TitleH thereupon tieated the application as an f'litirely new one, atfectin}? an insolvent's property, and 8ent a notice thereof to his assij^nee, wlio lodged a ca\- eat under Hec. 1()7 of the "Transfer of liand Htatute," and instituted this sjilt to restrain the defendants, Les- sers, and Ciihbs, Rejyistrar of Titles, from registering; the transfer. The bill was framed upcm the [*!()] errone OU8 supposition that the sde bv the sheriff was subse- quent to the insolvency of Nicklen, and charg<*d tliat by such insolvency the equity of redemption became vested in the plaintiff, and that the sale by the sheriff was null and void. Upon the admissions and evidence, how- ever, it appeared that the facts were as hereinbcf()re stated. The suit was undefended by Oibbs. Mr. a'Beckett for the plaintilT : — The lodgement on the 2(Jth April, 1878, was not made within the three months required by See. lOG of the "Transfer of Land Statute ; " and therefore the writ ceased to bind the land, and the defendants have no title under it. Mr. Lawes for the defendants : — The case now made at the bar is not raised by the bill. The assignee can have no greater rights than the debtor; and the debtor, if lie had not been insolvent, could not have disputed the deft^ndants' title. Section lOG is for the prote(!tion of a purchaser from the debtor, and not of the debtor him- self ; and " ceasing to bind the land " means ceasing to give priority under the execution: Registrar of Titles V. Patterson.^ It has not been argued that the assignee of the debtor is a purchaser for valuable consideration, and unless he is, the plaintiff has no right. 12 Ap. Ca. 110. :U)2 ToHimys r.lAXV. Tlic lodp'liiciit «»r the lOtli .liilv Hlioiild liiivr li ITU rtM'»'iv«'(l, and tin* iMinhaH<>r Ik not to In- picJiulinMl by IIm* icfuHal of tlM> otllrc l)c(iiUH(> of tlM> |»roviHion in tht* IcaHc ri'i|MiiinK the coiisint of tlii' (Sovcrnor in Tonnril to tile tninHfci*. Kr^'iKtratiou iH not ncct'HHar.v to pro- t(*.t tin* sale against tin* rxrrution nient of the <'(»py wiit. " Every wnrh writ " in the Heetitm nieanM every writ whether lodjjed or not. If the Titles Offlre is at fault, the def(*ndantH have their remedy ai^aiiiHt it. Cur. adv. vult. MR. jrSTK'K MOLESWORTIT :— The plaintitf in this Huit is Mr. Giles, the official assignee of Mr. Nicklen, an insolvent ; the defendants, >Iessrs. Lesser, pei'sons claiming as assignees of a pur- chaser under a sherilT's sale of the insolvent's interest in land. The bill seeks to ri*8train the defendants from ob- taining:, and the Registrar of Titles from giving, regis- tration of the transfer from the shenfF. The bill was fi-amed under the idea that the sequestration was before the sale ; it really was after. Hut T have had a new case .argued before me, that though the fieri facias was duly served on the registrar under the "Transfer of Land Statute " (No. .'iOD, Sec. 106, the transfer was not left for entry under that section within three months. I .adhere to the opinion I expressed in Unitedi Hand-in- Hand Company v. National BaTik,^ that the section does 2 2 V. L. R. Eq. 206, 218. uiLEs \: t.hs>h:n. 338 not nvold a nah' by flort frtcliiM um to tln' I'l^jIitM of Hi«« dt'htoi', lint oiilv iiH ImMwccii ii iMinluiHci* for vuluc friMii tlH' proviHionM for tlic rntr.v of tlie traiiHft'r within llircc niontlis I tliinl{ to be merely a reHtrirtion of tlie iirotertion af- forded l>,v tlu^ Hervice of tlie tleri fatiaH. In tiiiH caHc, llie tranwfer wan left for entry within three months of tlu' Hervie«', and, in ('oiiHeiinenee of a dittliMdty aH to the necessity of the approval of the (Jovernor in Counell to the transfer, the nuitter was 7!M < lililllill^ nil IHlllt<> ill fcf Milll|(ir ill pOHHi'SNioll oil III*' liiiKl. over wliicli HciHMfl clniiiiiMl to Imvi* cikIoihimI u|Min liix (ri'tititaii' of tiilt> mi (>iiK«'iii(Mit ii|tpiirli'iiaiil to liiH land. TIm* ^i-oiiihU upon wliicji tlir pr«'m'iil application wan nia«l«' wrro : — «II TLut tllf li'lininl JikIK'' llllit III) Jlirlmlirtiiiii to iiiilki' Hllcll onl«T. tln' s:inii' not liiiii).' ill liny Miiit in Mipiily or iirtion nt liiw ; «2i TIiHt tlif ciivtiitor | hail no opportunity of liriim; liciini upon tin- snid MiininioiiH, or aifaiinit the niaiiinu of tlie Hiiid order ; (fi) Tliiit the Hiiid HiiniinonM «nn not Her\ed upon the Iteitistnir of 'I'itleH until after 3 ji.iii. (tlie li«»«r III wliirii ilieotlice of 'I'iliew ijoseM) on Gtli I'elirniiry ; («) 'I'hiit flu» intid order was not ininh' until after the expiriition of one month frolll the reeeipt of the iiforesaid riiveat liV the Itet'ixtrar of TifleH, «M That the «p|di<-nnt In entitled to he re^iMtered iih proprietor of the euHei.ient!* oTcT the pieces of liiiidH eoiiiprised or r»'ferr«'«l to in the Aaid eiiveat. Tilt' atlldavits in answer Htati'd that tlio Hiininions (ImiuiI tltli F»'liniary) upon wliirli the avi]ov had boon Iliad*' was taki'ii liv a cN'ik of tlif fiivcalor's Holicilois Irt tilt' office of the Ht'fiiHtrai" of TitlcH bofort' :\ p. ni. on •'•til F<']>niai'y, but, as tlio ropstrar was cnpiKcd at vUmihI.v hcfii Iti-oiiKlit iiiidtr llic " TiMUHfcr of hiiiitl H|ji- ditr," iiiiW wiiM rf;;iHlfi'(M| tlit>rciiiMlrf. mid a li^lit of wu.v oviT It liiiil I II Kniiitfd l»v d»'»'d. \\\ n foniii'r pro- l>rl«'(or of \\iv wlioli* (»f ili«> liiiid, to ItciMHcrH pi'cdrccHHor ill titlr. Inn;; pilnr to t|ii> ri>f;iHtnilioii of tli<> nivratof'H Iniid, liul Nihil fitsi-iiiriit wiis not ciuloi'Hrd on lh«> riiNca- Ioi-'n rfitiilcatc of llilf. ItclMHfl wiiH liriii^in^ IiIh liiiid iiiidci' tilt' Act, iind rlniiiH'd to luivc tliU ni«'nt in- K('rt(>d In till* n-rtllli alt' of title to be ImhimmI to liltii. WoiMliiii^toii for I lie mot ion : — On tlio factn appcar- liiK on tile atVulavits, It Ik Hiiliii.it t«'d that the ordi'i* ran- iiot Ktaml. Tln'i'o was no piocccdiny; takt'ii in any Court of coiiipcicnt jiii-isdlction ; and tlic m nth lapHi-d. Tiif t'oiM't cannot K>'iiiit what Ik virtuallv :iit injunction, nn- IcHM Hiuiit' action or Hiiil Iuih I)('(>ii iiistitutod ; Hcc. 24 docK n(»( \i\\v the Tonrt an.v pow<" lo ni.ikc uvea order iiidepciideiilly of any hiiIi. Ii wan lield In Ue Power* I' t a •liid^'c in ChaniherH could not uiim' hiicIi an or- der, and lliat an action or suit was necewHary. The institution of proceedings is essential to hoth altcrna- tlvcH mentioned In Sec. l!4 ; proceeding's must '. • in- stituted in which the defendant may maintain his title, and then either notice thereof must be served on the re^jistrar, or an injumtion or ordi'r of the Court may he obtained. [Stawell, <'..!. — The onter in (lUtsiion is only an interim order ; It does not concIud«' the title.] This interpretation Is borne out by the words "within that time" not beinp; repeated as to obtaining tlie order, thouffh they undoubtedly apply to it. The aiiplicant was not served with notice of th»* applicaticm for the restrainin}!: order, tl: Mi^b the Hummons calls upon him also to show cause ; this is necessary for the protection of liiH interest, whi«'h the registrar is not concerned in defendiuff, his fun ; and he has no assurance of being enabled to pro- duce the deeds when necessary. The easement is appur- tenant to the land — a part of it. Rights of easements are fre(piently endorsed upon the certiticate of title of the dominant tenement ; and no injury can be done to the owner of the servient tenement. This is sanctioned by the Amending Act No. 010 ; thjit Act meets the decision in Ex jjarte Cunningham,- which is also dis- tinguishable in that there the servient tenement was not registered under the Act. The applicant yjroposes to insert the words, " together with a right of way over," etc. [Stawell, C.J. — The Act docs not give a right to insert the casement in the certificate of the dominant tenement, but merely gives effect to such insertion when it has been made by consent or otherwise. How- ls the registrai to deal with land not really before him on your application ?] There is no real necessity for putting the easement upon the certificate of the ser- vient tenement as Sec. 49 makes it subject to all exist- ing easements. a'Beekett and Williams, for the caveators, showed cause in the first instance — as to the service of the notice — it was served upon the solicitor who had been acting for the applicant, and was presumed to be still acting for him. But notice to the registrar is sufficient ; he is the person to be restrained ; and the Act does not require an applicant to register an address at which he may be served. The objection as to the jurisdiction to issue the order is concluded by Ex parte Gunn.^ The Act No. 610 is concerned only with evidence ; it does not prescribe how an easement is to be got upon the certificate of the dominant tenement. The only mode, 2 3 V. L, R., L. 199. ' 8 3 V. L. R., L. 36. EX PARTE BEISSEL. 33"; under Act No. .'i01> of ivsisterin^j; an eusiMnent is under Sec. 04, and that deals only with the servient tenement. 1 Ixe applicant is not prevented from using his deeds, after registration, in establishing his easement ; the Act (Sec. 27) provides for r, return of the title deeds to the applicant, if they relate to [*o7] other land, as they do when they contain a grant of an easement over other land. Worthington, in reply : — Section 04 relates only to the creation of an easement by the owners of both dominant and servient tenements, and does not affect the rights of persons not coming within it. The appli- cant seeks only to perpetuate his undisputed right. The policy of the Act is that there shall be no necessity for reverting to the previous title deeds for any purpose in respect of the land registered ; otherwise there would be but little simplification of title. The whole title is to appear in the certificate, which limits the rights of the owner. [Stawell, C.J. — The word " land," under the Act, includes easements.] Cur. adv. vult. Per Curiam. — Motion on notice to set aside an order made in Chambers, under Sec. 19 of the Act 15 Vic. No. 10, directing the Registrar of Titles to abstain from bringing under the operation of the "Transfer of Land Statute" the pieces of land mentioned in the caveat. There was no appearance for the Registrar of Titles either in this or the previous application. The owner of the lands was the owner of the dominant tenement, having a right of way over other lands. The servient tenement had been brought under the statute, and it was contended for the owner of the dominant tenement, that he had a right to have marked on his certificate of title, and put on the records of the office, that he was entitled to this right of way as appurtenant to his land. It was objected, in the first place, that the Court has no jurisdiction to make such an order, unless in casies where a suit has been instituted in equity or an action H. Ton. CAS.— 22 T^ mrnrw 338 TORRENS CAHES. <' ■ ''4 brought at law. Tliis objection has, however, been already fully ('ousidered in previous oases, and it has been held that the Court possesses jurisdiction to re- strain the registrar from registering certificates of title. Sec. 24 of the " Transfer of Land Statute," under which such orders are made, may not be free from doubt ; but no reason has been adduced for departing from the decisions previously [*58j pronounced, that the Court has jurisdiction to interfere and prevent an injustice being done, whether a suit has been instituted in equity or an action brought at law, or not. Then arises the question wliether the owner of the dominant tenement may have marlced on his certificate of title the easement that he claims over the adjoining servient tenement. It has already been decided, in Ex parte Cunningham,* that this cannot be*, done. The objection in that case, it is said, was that the land sought to be affected had not been brought under the " Transfer of Ijond Statute ; " but that in this case, as the servient tenement was already under the Act, the provisions of the Act could be made applicable to it. Section 04 contains the only provision in that Act for the creation of easements, and that does not apply to the registration of such easements on the certificate relating to the dominant tenement. Since that decision was given, the Legislature has passed an Amending Act, No. 610, which relates apparently only to evidence. Section 2"^ enacts that a statement on a certificate of title, that the person named is entitled to an easement, is to be conclusive evidence as to his being so entitled. It goes no further, and its silence impliedly recognises that the decision in Ex parte Cunningham* correctly interpreted the language of the Legislature in the origi- * 3 V, L. R., L. 199. s No. 610, Sec, 2 :— " Whenever any certificate of title or any duplicate thereof, either already registered or issued, or hereafter to he registered or issued, under any of the provisions or otherwise under the operation of the " Transfer of Land Statute," shall con- tain any statement to the effect that the person named in the cer- tificate is entitled to any easement therein specified, such state- ment shall be received in all Courts of law and equity as conclu- sive evidence that he is so entitled." EX PARTE DEISSEL. 339 nal Act. Wt'ction t7 of the original Aot provides that a certificate is to be conclusive evidence of tlie title of the person named in tlie certitlcate. It still leaves open the way in which the entry of an easement is to be made on the eertiflcate of title. It was further objected, on behalf of the applicant, that he had received no notice of the summons to restrain the Registrar of Titles from making the registration, and, therefore, that the order made could not be supported. P..t the Act only requires that the summons should be served upon the Registrar, and not upon any other person, aind the maxim, utile per inutile non vitiatur [*51)] applies. The rule to set aside the order restraining the Registrar of Titles from registering the right of way must ther^*- fore be refused. Rule refused." Attorney for tho applicant : — WestU-y. AttorneyH for the respondent :— Malk'son, EnRland & Stewart. Victoria, 1868, Molesworth, J.] ['j W. W. & a'B. (E.) 125. HERVEY V. INGLIS. lu a mortgage under " The Transfer of Land Statute," upon default in payment of interest although the time for payment of the principal has not arrived, the mortgagee can only be stayed from selling by payment or tender of the whole amount of principal and interest. This was a suit by Mr. Matthew Hervey, a mortga- gor, against Messrs. Inglis and Milne, the mortgagees (the latter of whom was out of the jurisdiction, and was represented by his attorney, Mr. G. N. Turner), to re- strain the exercise of a power of sale in the mortgage deed, and also further proceedings of an action of eject- ment. 8 Subsequently to this judgment being pronounced, the atten- tion of the Court was called to Sec. 4 of the Amending Act (No. 610). which it was said was passed to remedy the omission In the original enactment ; and the Court observed that that section seemed to require further consideration, should the point again arise ; although apparently the oliject for which it was said to have been inserted might have been attained by language admitting of less doubt than its present terms suggested. 340 TORRENS CASES. The plaintiff cxet'iited tlie niortpi)?e In (luostion iindur tlie '* Tniusftn- of Land Statnte," in IX-eeni- ber, 1880, to set'ure tlie sum of £4,oOU, repa.vabh' on the 27th October, 18(H), with interest at the rate of 10 per cent., payable (lum'terly, reducible to 8 per cent, if paid on, or within ten days after, the respective quar- terly days of payment. There was a covenant to insure in the names of the mortgagees. On the 13th of March, 18G8, a notice was served by Turner, as attorney of Milne, requiring the plaintiff to pay the sura of £225, the interest for two quarters, and also to pay the sum of £12 5s. for insurance, which had been paid by the defendants ; there being no reference in such notice to tlie principal. Plaintiff was at the same time served with a writ in ejectment at the suit of defendants ; but no intimation was given of any intention to sell. On the 20th April the plaintiff accidentally discovered that the defendants had instructed Mr. Gemmell, an auctioneer, to advertise the mortgaged property for sale, and that it had been advertised accordingly. On the same day he saw Turner, and requested him to revoke the instruc- tions for the sale. He promised to the plaintiff that the advertisement should not be inserted on condition that he would call next day^, and pay the amount of interest and insurance premium. On tlie 21st April, plaintiff went to Turner's office, in the afternoon, to pay the money, but did not see him, he having left for the day at 2 p.m. He subsequently, on the same day, ten- dered a cheque to one John Munro (there being [*12(>] fu'nds at the bank to meet it) a clerk of Tur- ner's, and also to Mr. Gemmell, and to Mr. Hellins, solicitor for Inglis, who also declined to receive it. On the 22nd of April, Mr. Sedgefleld, plain- tiff's solicitor, tendered to Turner the amount of inter- est and premium in notes and coin, but it was refused, unless the principal of £4,500 was also paid. The adver- tisement of sale was withdrawn, but was afterwards again inserted. The property, it was alleged by the plaintiff, was of much greater value than the amount of the mortgage, and ample security for the mortgaged debt. i ., ' ^ HERVEY V. I Nans. U\ The only statement of fact in the plaintifif's bill and affidavit, traversed by the defendants' affidavits, was with reference to the promise jjiven by Turner to with- draw the advertisement of the sale of the hind, if the interest and insurance premium were paid next day. Turner, in his affidavit, stated that he merely promised to withdraw the advertisement for a day, without any condition ; also, that the plaintilT had had the land divided into lots, and was having them sold, and that such division of the property would injure its value. The case now came before the Court upon a motion for an injunction to restrain the sale and the eject- ment action. Mr. J. W. Stephen and Mr. Holroyd for the plain- tiff : — There are singularly few decisions in the English (.^ourts bearing upon the question now before the Court, which may be accounted for by the fact that mortgages in England are invariably drawn, making the principal due at the same time the first interest is made payable. Here, mortgages are drawn for a long term of years, making the principal due at a certain time. The only case bearing on the point is Edwards v. Martin,^ where it was held that the non-payment of interest entitled the mortgagee to foreclose, although the time for pay- ment of the principal had not arrived. [•127] The whole system of mortgaging is reversed by the " Transfer of Land Statute," Sec. 84.= By Sec. 85 power is given to the mortgagee to sell the land if the default continue for one month after notice. It is important to observe the distinction implied by the use of the word " owing " in Sec. 84. The interest was due when the time for its payment arrived ; the principal was owing, but not due till the time fixed for its pay- 1 25 L. J. Ch. 284. 2 " In case default be made In payment of the principal sum, interest, or annuity secured, or any part thereof respectively . . . and such default be continued for one month, or for such other period of time as may be expressly fixed, the mortgagee . . . may serve on the mortgagor . . . notice in writing to pay the money owing on such mortgage, or to perform and observe the aforesaid covenants," etc f!^ "^■v^r'^W 'M2 TORRENH CA8E/! merit came round. Wy tlint Hpctlon the defendnntH were bound to give the phiintitY notice of wliat was " owinj; " on the mortKUge ; but they have not done that, for the.v have Himpl.v ^jiven notice of what was "due." Tliey tliei'efore failed to comply with tlie terms of the Act. The offer of Hervey to pay the money botli on the 2l8t and 22nd of April, although Homewhat more than n month after the notice, constitutes an equitable reason for restraining the defendants from carrying out this sale. Reference was aKso made to Jenkins v. Jones,' Rhodes v. Bucklaud.* Mr. Forster and Mr. a'Beckett for the defendants :— The whole legal status and equitable interest of mort- gagees are swept away by the Act, and only certain remedies are left to them in default. Under the terms of Hec. 84, there was no necessity, in giving notice of the default in the interest, that the defendants should inti- mate that they meant to call up the pi ncipal. They were simply bound to intimate the coven.. nts which had been broken, and, at the expiration of a month from the service, they could claim, not only the interest, but the Ijrincipal. The power of the mortgagees to exercise the right of sale accrued from the violation of the cove- najits on behalf of the mortgagor ; and they, seeing that there would be some difficulty in [*128] obtaining the interest, had resolved to exercise the right. There is no precedent to justify the Court in interfering with the rights of a mortgagee, unless the mortgagor tender, not only the interest, but the principal. Mr.. J. W. Stephen in reply. Cur, nd' > fult. Mr. J. W. Stephen, for the plaintift, ; : if His Honour was prepared to give judgment : ?e sale would take place on the following day, and uu.css judg ment was given before then, the injunction would be of no avail. Mr. Justice Molesworth : — I have considered the case 8 2 GifF. 99. <16 Beav. 212, HERVEY V. INULIS. 84:i In Hoiiu» deprei", and my opinion, ho far as it is lorniod, i» that, UH re^iu'dw tin* Hertion relating to uiort^agoes, tlK\v are not entitled to j>roeeed to a Hale tintll the ex- piration of a month from the date of the notiee of default. There in no doubt, however, that mortgaj;eeH can only sell for principal and interest both. They can do no more and no less. Tlie question then is — what would be sufficient to warrant the interference of the Court ? 1 think the Court should only interfere where an otTer has been made of th«' princiiml and interest — wnere the mortf^agee could get all without a sale that he could get with a sale. In this way the Court would interfere to prevent a vexatious exercise of the right of sale, for if a mortgagee M'as offered all, to sell would be vexatious. My present impression is that I ought to refuse the injunction ; costs to be costs in the cause. I cannot say, of course, what effect the pendency of the suit may have ujjon the sale. Motion refused ; costs to be costs in the cause. Supreme Court, Victoria, 1867.] [5 W. W. & a'B.(L.) 55. In re " TRANSFER OF LAND STATUTE," Ex parte JOHNSON in re WHYTE. The owner of certain land granted by deed to an adjoining owner a riglit of way over a certain portion of liis land in con- sideration of a certain sum. Upon proceeding to register tlie grantor as proprietor under the Act No. 301, the grantee lodged a caveat in respect of his right of way. Upon a aunimons (referred by a judge to the Court) to show cause why the caveat should not be removed. Held, that only easements appurtenant to the land registered can be entered upon the register ; and that this was not such an easement, but merely a way in gross, and application to remove the caveat allowed. Summons taken out before Stawell, C.J., by him referred to the Full Court, and argued Trinity Term, 1867. The summons was by Johnson, an applicant for regis- tration under the "Transfer of Land Statute," calling ■% .:: ^^'^ :)\\ TOHHENS CASES. :'t !■''!■ on Wlij^te to «hew cauHe why a tavt-at he had hulked jtj;ainHt any transfer or detilinK hy the applicant, in re- Hpeet of certain hind of which tlie applicant was proprie- tor, slionld not be removed. Jolmson and Wliyte heinjj the owners of adjoining property entered into the following agreement under seal : — " Emerald Hill, April (5th, 18(55. " Memo, of agreenunt whereby I, the undersigned E. "Jolinson, In consideration of having this day received " from William Whyte tlie sum of £(», do hereby for my- "self, admini8trato»'s, heirs or assigns, grant unto said " William Whyte, his heirs and assigns, the use of a "certain right of way reserved out of allotment No. 1, " Sec. 37 B, parish of South Melbourne, said right of way " being ten feet wide, and entering from Anderson street "and running along the southern portion of the said "allotment to lot 2, to pass and repass over and along " the said road or right of way with o • without horses " or other animals, carts or other carriages, into and out " of said road or right of way or any part thereof. "In witness whereof I have the day and ye^ir first "above written affixed my liand and seal. " £() — Received from W. Whyte six pounds considera- tion money." (Signed and sealed.) In his affidavit the applicant stated that he had ten- dered to Whyte the said sum of £6, and was still ready and willing to return it to him. [•5(J] J. W. Stephen for the applicant, in support of the summons : — The right claimed is not an easement appurtenant to any land ; no piece of land of the cavea- tor is named in the agreement, for the benefit of which it was granted. What passed thereunder was a mere right in gross, and the " Transfer of Land Statute " (No. 301), does not authorise the registration of any mich rights by way of encumbrance upon the title. By Sec. 42 no instrument, until registered, is to be effectual to render the land liable to any charge, and by Sec. 4 the word " instrument " is made to include " a transfer, lease, mortgage, charge, and creation of an easement." The i sM ^i:&- EX PARTE JOHSSON IN RE WHYTE. '.U5 ort of &ment cavea- which mere ' (No. SlK'h Sec. lal to 4 the lease, The rejjlMtt'i'ed proprietor holdn the hind abHolntelv free from all other eiicuinbniuceM tlian tlioMe upon tlie regis- ter, Sec. 40. The only eaHenientn ri*co|{ni/,«'.v the Act are tlioHe appnrtenant to land regintered *' tojjether with a right of carriage wa.v," etc., Sec. (J4. Si'c. 1H5, provid- ing for the right to lodge a caveat, gives it only to a person claiming nnder any nuregiMtered " inHtrument," or by devolntion of law. Holroyd for the caveator : — The grant created a «'harge npon the land. The interpretation of " instru- ment,'' in Sec. 4 speakH of the " creation of an ease- ment," without «*ontining it to an easement appurten- ant to any land ; and there may be easements in gro88» the burden of whi< h may run witli the tenement over whith ihey are claimed: «iale on ICasements, 'M'd Ed. p. V.i, note. A dominant tenement is not necessary for the existence of an easement : Dyce v. Hay.^ The reason of the thing is stronger in favour of registering a grant of an easement in gross, for if not registered there is nothing to indicate it, or to give notice to the grantee, upon an intended transfer of the servient tenement, that his right may be affected. While in case of an ease- ment appurtenant, the owners or occupiers of the land contiguous (to the land of some of whom the easement would be appurtenant) would, at any [•57] rate, when the land was first brought under the Act, have notice sent them under Sec. 20, which would enable the grantee of the easement to protect his rights. Cur. adv. vult. Stawell, C.J. (after stating the facts): — The subject of this application involves difficult and intricate ques- tions of law. The transaction is in no way a sale of any land ; there is no dominant tenement, it is the mere grant of a right of way for a consideration, irrespective of land, or any transaction relating to land. The " Trans- fer of Land Statute " (No. 301) refers to the creation of easements, and the interpretation clause evidently means the word " land " to comprise easements and ^ 1 Macq. H. L. 812, per Lord St. Leonards. I 846 Tonjiiiy& cAasa. jipiMirlcimiMM's iiiUMM'talnln;: to tin* land tlrHrrllKMl, or rcpiitiMl to Ik' part tlicn'of, or appiii'l(>iiaiit thereto : in otlu'i- wonlH, «'aK«'mfnt>« appurtfiiant, and not In hvohh. A Hulmi'qutMit Mfitlon rontlnuK thin vlt'W. Hvv. 04 rt'ipiln'H (>aH«Mn<'ntM to Im* irtflsti'ird. " A UKMiiorial of an.v trans- fi'V or li-aKc rn'atln;: any t>aMi>ini'nt (»v«'r or npon or af ftM-thiK any land iindt'r tlu* op«'ratlon of tlilM Act Hhall lie rnU'ri'd on tin* folhnn of the n'j:lMt«'r book ronntltutf'd by tlu- «rant or I'xlutlnjr r«'rtltlratt' of tltb' of hucU hind in addition to any other entry ronrernlnjj; nnrh Inntni- nient rnpiired by this Art." In fart, It treats a h'ase (■reatiiiK an easement ap|iurtenant as an encumbrance, and directs tliat that encumbrance sluiU be endorsed on tlie folium of the re;;ister book in the same way as any otiier encumbrance. Hecause the jjrantor, Iiavin); granted tliat easement appurtenant, thereby confers a ri^rJit on another person which may fairly be treated as an i'licumbraiice on the land. Sees. 110 and 117 relate to caveats, and empower "any benetlciary or other per- son claiming any estate in land under the operation of this Act " to lod;;.' a caveat forbiddini; the rej?i8trati(ui of any person as transferee, until notice is given to the <'Uveatoi', or unless the transfer is made sub [*58] ject to his «laim. Noti»e of this caveat is to be given to the proprietor, and the caveator may be called upon by the €ourt or a Judge to show cause why it should not be removed, and the t'ourt or Judge is to make such order as may seem fit. Large powers are here conferred on tlie Judge or Court. These words "any beneficiary or other person claiming to be interested," taken by themselves, enable any person having any conee'vable estate or interest to lodge a caveat, and allow the matter to come before the Court. But these plenary powers are to be taken, we think, in conjunction with the object of the Act, which is to enable an owner to register land, and to <'reate a clear estate, and not to allow encumbrances to appear on the register which ought not to be there. And the question is whether this is an easement which ought to appear on the register as against this land. An appur- KX I'AKTK JitHNsnN IN UK ttllYTh'. 347 tiMumt nixriiiriit imiHt IiiImmv tii tlu' Iniul. and th«'r«' uMiiht to \u* a dominant and a nrrvliMit trni-nn'nt. W«' think that thr rljjht ronfi'irt-d by thin do«'nnu'nt Ik not an appnrtrnant faMcnirnt, If It i-an be properly dpHi-ribrd UM an iMiHcnh-nt at all, abont whh-h I have Monu' donbtH. An rawnuMit In j?roHM Im niendy a piM'Honal rontrat't bctwiM'n t\u' jtrantor and the jjninti'c. Tlu» niM<» of Ack- I'oyd V. Smith'' Ih very derlnlve on the point; there, u rl«ht of wjiy waH admit tei! to hav«» been granted for eertaln pnrpoHen over eert'.dr. land. In the name wordw almoMt aH In thlw caHe, and the land waH asHljjned to another jjernon ; that aH<4lnnpe, In an action of treMpaHt*. pl(>aded th<> aHHl(nnnent, and the (n'l|;lnal grantor tiled a demurrer. f'reHwell, J., In }?lvlnK the judgment of the Court, ^(»eH Into the whole qneHtlon, and eonnlderB the ri^ht a mere j^rant In ^roHH. He Hayn:" "If the rlj;ht conferred by the deed Het out was only to use the road for purpo«e8 connected with the occupation and enjoyment of the land conveyed, it does not [•50] justify the acts confessed by the plea. But If the grant was more ample, and extended to uslnf? the road for pur- lK>ses unconnected with the enjoyment of the land, . . It becomes necessary to decide whether the as- wi^rnee of the land and appurtenances would be entith'd to It. In the case Keppel v. Bailey,* tlie subject of con- enar.ts running with the land was fully considered by Lord Brougham, C. He says : — ' The coveimnt (that Is, siK'h as will run with the land) must be of such a nature as to Inhere In the land — to use the languagi> of some cases; or it must concern the demised premises, and t!ie u'nde of occupying them, as It Is laid down In others ; It must be quodammodo annexed and appurtenant to them, as one authority has it ; or, as anotlier says, it nni«t both concern the thing demised, and tend to sup- port it, and support the reversioner's estate.' If a way be granted in gross, it is personal only, and cannot be assigned." 2 10 G. B. 164. 3 At p. 187. * 2 My. & K. 537. ' T I I 34!) ToUHHS'i VA'StS. W«' tliink iliiit tlilM rlulit to Wlivtr wiih iiu'ipIv a way israiiti'd ill ^nrnM, that it could not Ih> aMMiKiii>(l, and tliat it oii^lit not to Im' n'ulMtrtiMl. W'v an- fortilli'il in tliin \U'W \\\ a ronMi«l«'iation of tlio Ultli Vl«'. No. 112, Hit. 4."». to wliirli we liavc Imm'II irft'i'i'tMl. Tliat Art jfOi'H a ^rr^'at dral fiiiilKM- than tiic KiiKJiMii law, and niakcH that whirh u«»iild Im* a wav in hiohh, arrordiny; to Atkroyd v. Kinlth," II way appurtcnaiit to tlw land. Tin* |M'«>H<'nt Ki'«i>t*'*' iWliytci in licit hndfnl owihm'h, pohh«>hh land ; one ^ivcH £(>, iind th(> otlitr ^ivcH a ri^ht of way over a pli'cc of land in no wiiy coniKM'tcd with any pnnhaHc, and the pei'Hoii to wlioni it iK granted \h not a Hiib pprrliaH(>r. No doubt, uudcr tin* "TranHfer of Land Statute," an euHeinent may lx« re^rinttTed ; hut thin \n not an eaHeiiieiit, only a way ill ^roHH, which the Le};iNlature never contemplated Khoiild he ri'^iwten'd. We «'anii(»t make the conMclen<'e liable where the title Ih not liabh>. [•♦iti] We sliall i^nint the ap]»licatioii to remove the raveat. The point Ih a new one, and therefore we give no routs to either side. Application grained. Caveat to be removed. ViCmRIA, 1SG7.— MOLESWOIITH, J.i [4W. W. & n'B. (I. E. & M.) IS. In the Real Estate of JOHN GOW, Deceased. When- a t«'Htut()r. ulthntiKh not (l<>vi8inR tho \ogn\ estate in hi« lands. n'lvvH hiti exin-utor iiower to 8<>ll them, he doeH liot die int<-*iat«' »H to BUfh laiidH within tlie mennine of the " Trnnnf t of L)tii Mt'ilianicH' In Hiltiitf, and £."0 iM'HldfM. I h'avo to tlu* Ht'V. William il('nd<>iM<»n, Itnllanit, niy drrMHin^ raMc, an a mark (»f m.v <'Ht(M>m. I lea VI' to the U«>v. Diiinnn FniMcr, Itallarnt, my wntcli, writinj,' dt'Mk, and tt'U'Mcopf, aM a mark of my regard. I plari- hm' what it wnM my intention to linvi- lai'iitionfd earlier. My exeentor Im to Invewt, In Mouie well known iiiHurnnee otttve IjeqiieHtn, to be handed over aM a duuutiun to the hoHpital, Itallarut." Mr. Craig, the exeentor, apitlied to the CominlHslonor of Titles, to be reglntered an devlHee under the Act, but the coinmiHHiouer refused the applieatiuu, ou the gruuud that the deceast'd had died iutt'state. Mr. J. W. Htephen now moved on behalf of the execu- tor for a rule to administer under the " Transfer of Land Statute." Cur. adv. vult. Mr. Justice Molesworth : — ^The testator had an evident intention to dispose of all his property ; and, although there is no direct devise of the lands passing the legal estate, the [*!{)] executor has, I think, power to sell them ; and the testator cannot be treated as hav- ing died intestate as to them, within the meaning of the Act. The beneficial interest is virtually disposed of, and the executor can transfer the legal estate. The applica- tion will, therefore, be refused. 350 TORRENS CASL'S. VrcTOHiA, 1871— MoLEswouTH, J.] [3 V. R. (E.) 1. DAVIS AND OTHERS V. WEKEY AND OTHERS. " Transfer of Land Statute " — Lease — Transfer — Fraud — Notice — Injunction, Tho manafjer of a mining company procured the sale of ita pnjporty uiulcr ii Iraiululpjit judKinent, and lu'cume the purohuscr. r.'irt of tho property eoiiHisted of a lease under the " Transfer of Land Statute," wliieh was trauHferred to him, and by him to ii puridiartcr, l)otlj transfers heiiijr registered on the same day. On Itill lo set aside the sale and restrain dealings with the lease by the set'ond ptirehaser, injunction granted, the second purchaser having notice o*' the fraud of the first. Observations on the words " except in the case of frai d " in Sec. 50 of the " Transfer of Land Statute," and as to dealingi.' with a person entitled to be, but not being, registered as proprietor. The immense power which the " Transfer of Land Statute " gives to a proprietor of completely barring clear equities presents u reason for (Courts of Equity readily interfering by injunction. Motion to dissolve an injunction {j;ranted as if ex parte under the circumstances stated ante, Vol. n. Eq. 170 The bill was by shareholders in the Aladdin and Try Aj;aiu Ignited (lold Mining Conipiiny, Rej^istered, to set aside a fraudulent judgment against the company, and sale of its property under it ; and to remove [*2] the directors. It appeared from the aflBdavits that the defendant Wekey, the manager of the company, sued it for a debt not due, fraudulently prevented any defence to the action, and obtained judgment and execution, under which he caused the property of the company to be irregularly sold, and himself purchased at an under- value in May, 1870. He and other defendants who had colluded with him were prosecuted and convicted for conspiring to defraud tho company. Wekey kept pos- session of the property purchased, which comprised a mining lease registered under the provisions of the "Transfer of Land Statute." On the 20th September, 1871, the special bailiff executed a transfer of this leasfe to Wekey. On the same day Wekey executed a trans- fer to the defendant Ireland, and both transfers were registered on the same day. The bill charged that the DAVIS V. WE KEY. 351 traiiHfi'i' to li'flaiul wjih without (*oiisi(l<'ration ; and that he waH, in fact, a tniHtw for the other defendants, and liad notice of the fraudulent ccmspiracy and of the circumstances under whicl: the pretended sale took place. The defendant Ireland denied that he had pur- chased as a trustee, and stated that the purchase was made in Aufjust, 1S71, in <'on8ideration of ]>ast advances made by him to Wekey, and of his acceptance to Wekey for £5.'{0. That he was aware that W"key had purchased under a judf^ment ajiainst the company impeached by the company, but that the company had, by resolu- tion, agreed to take no proceedings to set the sale aside. It appeared that Ireland's acceptance had not been i>aid, but that judgment had been obtained on it. Wekey filed an atVidavit in support of the statement made by the defendant Ireland. The plaintiffs moved for and ob- tained an injunction to restrain the defendant Ireland from transferring or otherwise dealing with the mining lease of which he was registered as the proprietor under the "Transfer of Land Statute,'' which injunction he now moved to dissolve. ^Ir. Holroyd and Mr. a'Beckett for the motion : — The defendant Ireland is a purchaser and registered proprietor under the "Transfer of Laud Statute.'' The bill does not charge fraud against him, and under Sec. 49 of the statute, fraud is the only qualification of the i?tle, as shewn by the certificate, on which his title can be impeached. The defendants charge notice only, and under Sec. 50 notice is imm.aterial. The knowledge of an unregistered interest cannot be imputed as fraud, and is no bar to a dealing with the proprietor. The plaintiffs have no right to complain, as they have al- lowed the defendant Wekey to remain legally as well as ostensibly entitled to the property ; and take no steps until a third person intervenes as against whom they [*3] have no rights. The bill treats Ireland as a trustee for the other defendants, and asks for relief against him on that basis. On the admitted facts this ground can- not be sustained, and the plaintiffs' equity fails. Mr. J. W. Stephen, for the plaintiffs, contra : — It is *K;i 352 tourens cases. I , t not ueressary to chai'^jo fraud when facts showing fraud are distinctly allowed. The bill charges that the defen- dant Ireland knew of the fraud of the other defendants and dealt with one of tlieni as to the fruits of it. This is sufticient allegation of fraud as to him. At the time of the contract alleged, Wekey was not a registered pro- I)rietor, and the contract was therefore not a dealing with a proprietor within the protection of 8ec. 50. The transfers to and from Wekey took effect at the same time, and Ireland is subject to the plaintiffs' claims as to the land as fully as Wekey was. It is admitted that if Ireland transfers the plaintiffs will be unable to en- force any rights as against the land or the transferees, and the injury would be irreparable. The plaintiffs are entitled to protection against any dealing having such an effect. Cur. adv. vult. MR. JUSTICE MOLESWORTH :— This is a suit of Mr. Davis and others, shareholders in the Aladdin and Try Again Gold Mining Company, Registered, against Messrs. Wekey, Keogh, Capes and Ireland, to set aside the title of Wekey as purchaser of property of this company under a sheriff's sale, and the title of Ireland as derived from Wekey. The immediate motive of the suit was to stop measures taken by Ire- land to obtain a title under the "■ Transfer of Land Sta- tute." An injunction was obtained on the 29th Novem- ber against Ireland transferring, leasing, or otherwise dealing with or encumbering the same, which may be regarded as nearly ex parte, as the answering aflSdavits were not filed in time to be used. I have now to deal with an application, heard 13th December, to discharge the injunction. The plaintiffs' case by affidavits as to Wekey (which, though he has made affidavits, he does not attempt to controvert), is that he was manager and director of the company in question ; and colluded with other direc- tors, forming a majority, to obtain a recognition from them of his being a creditor — by an acceptance of £104 te^i-'Myi . i i DAVIS V. WLKEY. 35li vhich, pt to t)f tbe direc- from £104 128. — when lie was [*4] really a debtor of the company, to brinj; an action ajjainst the company on that accept- ance, to fruHtrate all attempts made by the plaintiflfH t(» defend that action ; that he obtained jndjjment Sth April, 1S70, for about £120, and issued execution ; that he concocted a scheme with the defendant Keo^h, one of the assistinj; directors, who was appointed special bailiff, and Capes another such director, bidding for him, to have all the i)roperty of the company purchased by a hasty .secret sale at undervalue, 14th May, 1S70, the debt to him being taken as part of the purchase money ; that it was sold for about £180 to (^ap's, the property sold being worth over £2,000, and nothing being actually paid. It is further stated, and not con- tradicted, that in September, 1870, Wekey, Keogh and Capes Avere tried, convicted and sentenced to imprison- ment at the Melbourne Criminal Sittings, for a fraudu- lent conspiracy to defraud the company. Notwithstand- ing this conviction, Wekey kept possession of the pro- perty purchased. He has succeeded, also, from the diffi- culties presented by the partnership deed, in thwarting all efforts to have new directors appointed, and has kept the common seal. There is some conflict of evidence as to whether at meetings of the company about January, 1871, it was resolved not to take any proceedings in equity to set aside Wekey's purchase. A part of the company's property with which I have now to deal was 7a. Ir. 23p., part of a lease from the Crown, forfeited by its predecessor, for a new lease of which the company had applied at the time of the sale, and which was issued after .30th May, 1870. On the 20th June, 1870, Keogh, as bailiff, transferred all the pro- perty of the company, including this lease, to Wekey. On the 2nd August, 1871, Wekey, as in consideration of £5.30 paid, and a bill of costs due to his solicitor, as- signed all the same property to Ireland ; and on the 20th September, 1871, Wekey's title to the lease was recognised at the Titles Office, and on the same day Ireland obtained a certificate of title. H.TOR.OAS.— 23 -a ■V ^jll!^;-. 1 .' t -'¥, 354 TORRENH CASES. P The plaintiffs' attiduvitH nllc^'e tlmt Ireland K«'ive no conHideiatiou for tlie transfer, but the lease was trans- ferred to him as a trustee for the other defendants, and that he had notice of the fraudulent conspiracy, and of the circumstances under which the pretended sale took place. Ireland's answering' attidavits, in which he is supported by Wekey, state hiia to be an absolute pur- chaser of the property, and to liave got possession of it, and I deal with the case only ni)on the grounds of his being a purchaser with notice. He does not defin- itely state of what facts he had, and of what he had not, notice, but says, [*5] "save as hereinafter mentioned," he had no notice, " hereinafter mentioned " including speaking to Wekey about this conviction; and therefore, I suppose, knowing the offence laid to his charge. He says he had heard and relies upon the fact that the members of the company had resolved to take no pro- ceedings in equity — that, I ►juppose, includes his knowing what was the pretence of their proceed- ings. A resolution of that kind could not amount to a renunciation of their rights or a determination to submit witliout resistance to a proceeding not then foreseen in the Land Titles Office, which would enabh' him to have these rights for ever. His history of his dealings with Wekey is, that they were not personally acquainted before May, 1871 ; that Wekey was then in undisturbed possession ; that he made advances to him, for the purpose of erecting machinery and working the mine, which were to be repaid by the first yield of gold, and in contemplation of the possibility of his acquiring an interest in the mine, contingent upon the title to the same being perfected ; that, on the 2nd August, Wekey informed him that the Mining Department was going to forfeit the lease for breach of conditions, and to be specially severe in regard to his conviction, and pro- posed, instead of partnership, that Ireland should re- lease him from his liabilities, and purchase the pro- perty, in consideration of past advances, £505 10s., and this bill for £530 payable in a month. The past ad- vances appear by other documents to be £155 10s. cash, and machinery valued at £350. An affidavit states DAVIS V. WE KEY. 355 that Ireland purchased this machinery for £!">(), secured by bills, which he never paid ; and as to the £5;J0 bill, Ireland and Wekey are aj^reed that it was not paid, but sued upon without result. There is thus considerable discrepancy between the alleged consideration for these dealings and the consideration recited in documents— always a matter of suspicion. There is, I think, a question of fact to be tried in this suit, as to the extent of Ireland's knowledge of Wekey's dealings ; and, further, a question of law as to the meaning of " except in the case of fraud," in No. 301, Sec. 50 ; and, further, whether dealings completed with a person before he becomes a proprietor under the Act can be protected by the machinery of the Act as to his vendee, by making him a proprietor, and at the same instant a transferor. The immense power which that Act gives to a jt*ioprietor of completely barring clear equities presents, I think, a reason for Courts of Equity readily interfering by injunction. Refuse the application to dissolve ; costs to be in cause. The suit was ultimately dismissed for want of prose- cution. Solicitors :—Gresson— Morrison. and Victoria, 1887.— Webb, J.] [13 V. L. R. 80. COWELL V. STAGEY. '' Transfer of Land Statute," Sees. 37 d 42 — Transfer — Notice of outstanding equitable interest — Registration of transfer. The "Transfer of Land Statute" was not intended to abolish the principle of notice. Notice of an equitable interest in another, given to a purchaser of land under the Act at any time before he has completed his title by getting his transfer registered, is suffi- cient to entitle the person in whom the equitable interest is, to prevent the issue of a clear certificate of title to such purchaser. Action by purchaser against vendor for the specific performance of a contract for the sale of land. i". li-J,'^ 350 Toiijinya CASUS, On tlu' 7th May, ISSCi, tho plaintiff, Mary UoKiua t'owi'll, wlfo of Edward ('owell, ent«Med into a contrait with tho defendant, William 8ta«'ey, to purrhaHe from him for £120, some forty-six acres of hind under th.' "Transfer of l^and Htatute " in tlie neijjliborliood of Port Albert, of which Htacey held a h-ase from the Crown. She paid £41 lis. in cash and pive a promis- sory note at three months for the residue of the pur- chase money, £7!) Os. Home little time after the con- tract was entered into, the plaintiff heard that the defendant John Cotter was about to purchase the land from the defendant Stacey, and, as she allej?ed, she wrote to him tellinj; him not to do so. However, on nth August, lS8r», Stacey sold the same land to Cotter for £100, of which £(50 was paid in cash, and the residue was to be i)aid in cash when Cotter obtained a certifi; cate of title to the land ; and on that day a transfer of the land by Stacey to Cotter was executed by Stacey, stating the consideration paid as £160. On the 12th August Stacey signed a transfer of the same land to the plaintiff, and about the same time gave the plaintiff possession of the land. On the 22nd September the defendant Cotter lodged a caveat in the Titles Ottice against any dealings with the land, and on the 30th Sep- tember lodged his transfer for registration, and pro- duced the lease to Stacey from the Crown. The plain- tiff had, in the meantime, viz., on the 28th September, lodged a caveat in the office against any dealing with the land without notice to her. She then brought the present action against Stacey, Cotter and the Registrar of Titles, to restrain the registrar from issuing a cer- tificate to Cotter, and for a declaration [*81] that she was entitled to the property, and that all the necessary Instruments should be executed to transfer the land to her. Stacey and the Registrar of Titles did not defend the action. Evidence was given for the plaintiff that Cotter had, on two occasions before the sale to him, been warned not to buy the land from Stacey, as he had already sold COWKLL r. sTArKY. !ir)7 It to the plaintiff ; and afttM* the sale, viz., on tlie Utli August and 2Cth August, letters were written to liini giv- ing him notice of the sale to the plaintitT. Stace.v, wlui was called as a witness for the plaintiff, admitted having signed both contracts of sale, but alleged that when he sold to Cotter he did nojt know what he was doing, inas- much as he was drunk at the time. The defendant (\)tter denied that Htacey was at the time drunk, and asserted tliat he was perfectly sober. He also denied having received any notice of the sale by Stacey to tht' plain- tiff prior to his own purchase, and stated that he had only received one letter, that of the 11th August, and money wnH pnid in (■anil, and a proniiHHory note at three months ^iven for the reHidiie, bnt l>.v an ajjnvinent between the vendor and purehaser, the pronilsRory note was lodged with a stakeholder, was to be paid to liini wlien dne, and the procet'ds not handed over by Iiini to tlie vendor until Ihe phiintitt had obtained a rej,dwtered title. After this th«' vendor entered into some arrangement — I can hardly say a contract — with the defendant Cotter, the only evidence of which is a transfer sijjned by thi* vendor and Cotter, which stated that the sum of £100 had been paid by Cotter to the vendor for the same piece of land, and transferred the same i)lece of land to Cotter. Cotter in his evidence says that all he ever paid Avas £00, but he adds that if he had procured the transfer to b - repis- tered, he would have paid tlie other £100. The vendor, by his appearance in the box, has satistied me that he is correct when he says that he is addicted to drink. He says he was drunk when he 8ijj;ned this transfer to Cotter, and I am inclined to believe he was. There is a conflict of evidence as to whether Cotter had notice of the sale by Stacey to the plaintiff. Two witnesses for the plaintiff relate conversations, In which Cotter was told of the sale to the plaintiff, and warned that If he purchased from Stacey, It would be In direct contilct 'with the sale already made to the plaintiff. Cotter meets this by a bare denial of either conversa- tion having ever occurred. He does not admit a con- versation having taken place but give a different ver- sion of it. Upon that conflict of evidence, I believe thi' witnesses for the plaintiff ; and I And that the defen- dant Cotter before any negotiation with the vendor Stacey had actual notice of the contract entered into by Stacey with the plaintiff. There is further a letter of the 11th August, In which distinct notice was given to the defendant Cotter. He himself says he received it. on the 28th August. On the 22nd September Cotter lodged a caveat against any dealings with the land ; on the 28th September, the plaintiff also lodged a caveat, [•84] and on the 30th September, the defendant Cotter 300 Toiu:i:ys t-jstiti. •A ludp'U hiM tian»f»T for ivKl^trjitloii, Imt thf plaintiff'* tav»'at blotkliiK thf wa.v, It rtmWl not Ik* ivKli*tiMf»l. At that tliiu' \\v had. u» I tiiul upon th»' fvUh-ncf, had no- tl»t% both iH'foiv and aft«T hlH lontrart, of the philu- tlff'H linhtu uudt'r her coutrait. It Ix lontended at the bar that whatever niljfht have been tlie rule before the " Transfer »>f Land Statute," or \n Htlll the rub* as to land not under that Aet, utt regards hind under that Aet a person with notice of an outMtandluK etpilt.v In somebody else nia.v hulne a trunii- fer to himself for registration, and that the Titles Office Is bound to register it. The statute was never Intended to abolish the entire principle of notice, and to provide that a nuin getting « transfer when he had notice of another's rights might have it registered and defeat those rights. The principle of notice still exists as it did before the Aet. Notice of an equitable Interest in another given to a purchaser before he had com- pleted his title by procuring a conveyance was suffi- cient under the old law, and under the new law until a person has completed his title by getting his transfer registered he is just as amenable to notice. The policy of the Act is that when once registration Is effected the holder of a certiticate of title shall have a good title, whether he had notice or not of outstanding equit- able interests ; but the whole scheme providing for caveats is to prevent him from obtaining a clear certi- ficate while any rights are outstanding in others. Till the transfer is actually registered a person having an equitable interest in the property can stop the issue of such a certificate. In this case the plaintiff is entitled to the relief she seeks and a declaration that the plaintiff's contract and the transfer to her take priority over the contract and transfer to the defendant Cotter. The legal estate at present is in the vendor, as neither transfer has been registered, so that the second paragraph of the priiyer asking that Cotter may transfer to the plaintiff is inapplicable. The third paragraph is for an order that the defendants Stacej and Cotter perform all acts roWKU. r. STACKY. m\ ntMCHHar.v to wnX in tlu' plalnttfT tin* oHtntc iind Intpn'nt of Htarcy in tlt«> IfUMc. I do not know tluit tlim* in anylltin); more to he done, Itut I will dit'(M-t that all par- ticM p«>rforni all actH ncicHMary to t'nahl«> th(> tnuiMftM' ['H.')] to the plaintitT to h(> roj^iHtenul, and I ord«'r tin* defendant Cotter to pay the plaintitT her eottts of thift action. Solicitor for tin- plnlntlfT :— VVnlihick. Holicitors for tl.u defeiuluiit Cotter :—Et{((lettoiie iV Derhani, for BuHtie: Halu. Vktoiua, 1800.— Stawell, C.J.] .:6 W. VV. & a'B. (L.) 81. In the matter of the "TRANSFER OF LAND STATUTE" ANi> IN the matter of THOMAS H. POWER. A Juiitfe in Chambern lias no jurisdiction upon Hiimmons to make nn order under the Act No. 301, 8«c. 24, reatrainhiK the reiKiittnir from brinxinK land under the Act. To obtuiu Hiich an order the cnveator muHt eitlier bring lui action or tile a bill. Summons referred to the Court by Williams, J., by which an order was applied for, restraining the Regis- trar of Titles, under the "Transfer of Land Statute" (No. .301), from registering I'ower as the owner of land in Smith street, Collingwood. Power bought the land in 1842, had conveyed part of it, but never executed a conveyance of the part which he now applied to have brought under the Act. A caveat was lodged against his application by Tliomas Smith, who set up a claim to the land by adverse pos- session for more than tlfteen years. [•82] Webb for the caveator :— Under Sec. 24 of the " Transfer of Land Statute," the caveator is entitled to an order of a Judge restraining the registrar from bringing this land under the Act. Smith having been in possession for more than fifteen years, has now under the "Real Property Act," Sec. 43, a good legal title, and not merely a possessory right ; and by that section the right and title of Power is absolutely extinguished. Under the present law, as distinguished from the old V 362 r unites s lAmnn. HfiUuH'M of Minltiitloii, wlilrli only hjiin-d tln' r«'nn'«l.v, imIv«t>m« poMMt'MHUin for inoff than Hfl«'«'u vi'ium confi'rt* an almolnti- titir — Do** ^\. Carter v. Harnard ' — and on«' whlrli a <'ourt of K.<|nlty will font' upon a punliaM^T : Si-oJt V. Nixon.- Smith h th»M«'fon' entltlrd to *i»iu> In anil op|H»Hf INiwpr'M applhatlon. It Ih tnit? tin- n-rtl- tlratr to Towrr, If ImmiumI. will h»' Hiibjcrt to «liilniH by adv»TH«' poMHi'MHion; hut If lln' iiTtltlrati* «»f tllh' In* on«'»» Ihhu«*«1 It will ii\\v hliu a titio whh'h In* »1o*k not now iMiHHfHH. and dcpiivp Smith of tin* tlth' whhli lu> lum now ar(|uli'«'d. Il<' toiild never k«'II the land, and the Utniotit he rould do would he to prevent helu^ eje«ted. T. a'lleikett for I'ower : — Ati order ohtnlned on Kiininioiis from a tludp* In rhamherrt Is not the mtler contemplated hy the Act. Se«K. '2'1 L'r>, 1H». and 117 re- cojrnize the distlnetlon between proceedluKx before a Jiidp* and proeeediuKH In <'hainbt>rM. Karly Khewinff the int«-ntl(m to exelude that jurUdletlon in a proceed- IDK by a caveator a^aiuHt an applicant. The section Ih to be read a« providing? for a proceeding in a Court of comiH'tent jurlHdlctUm to »»»tabli.sh title, and notice of thait proceidinjr to be ^Iven to the rejflstrar ; or lui In- junction or order obtained on tliat proceeding, not on i*uninions. OtlierwlHe an applicant would, by ].ro- ceedinps in ChamberH, be pertuanently excluded from the benefit of the A Into two piirt^^. ••iicli liit«'iMliMl to iiifot I'liHi'N fullliit; within it. I imIit tlio tli'Mt, wlifi'c a |H'i'Mon niii cMtiihllMli IiIm titli>, he inuMt do HO citlici' li.v Mult for Hpfcitlc |»(>i'fornnin('<' or li.v rjcrtnwnt ; mxhUt tli»» lntl«'r part, wImmt ti p»TK«»n \h in Murh a poHition itiiit h<> ran talliMli IiIh tltl«>, h«' nia.v oldain a .In«lK<''M ordrr. Htawi'ii, ('..F. — I am a^ainnt tlir appliratlon on fvery point. Hut in thiM pr«'l1nitnarv on*', a^ninHt t\u> JnriM- diction of tli(> .liidtfc, I i'iiti'rtaln no donitt wliaicvcr, for I liav)' had orcaHion tn coiiHldt'r it nior«> tlian on*«>. I tliinlv till' only wjiy to r«'ad Sfc '24 Im that tln' onviMitor niuHt hrin^' an action of cjcctnicnt, or tll«' a bill in pqiilty. I do not think that by " ord»'r of a JndK»*." thf L<»KiHla- turo nn'anf a .Iudj,M» in Chaniln'rH; for where they did mean that, they have naid ho plainly. SuinnionH diHmlHHed. [Note — In re Power wrk pra(!tically overruled by Ex parte Ounn, H V. L. It. ('2i H(l, and Kx parte (iiinn wuh followed in Ex parte DoiHcl, A V. L. R. (L.) A3. Tlie cu.to in lure reprinted because frequently cited. — Kd.j J>ro- Victoria, 1878.] [4 V. L. R. L. 03. WIGGINS (Appellant) v. HAMMILL (UesponJent). ^'Tram/er of Lan>l Stutute" (Xo. 301), Sec. 153—Fniii.}— Ki'i-oiifDiis il('scn'i>ti(>n in tii>plicntion, A miHdoRcription in im application to liriuR Innd uiidor tht> " TrauHfer of Lund Stntuto," us that tlu* land was unoccui)ii'd, will not. under Sec. 163, invnlidato a cfrtlHcnte of title ; there muHt be frnud with uniity intention. Soluble, thot such n matter could not be decided collaterally, and the certiticnto could not be treated uh void, in a civil Huit ; the person charged with Ruch fraud should tirHt be convicted by a jury, and then proccedinKH niii;ht be taken to cancel the certificate of title. Appeal from the County Court, Melbourne, in an action of ejectment to recover possession of 20 acres of land at Ringwood. At the trial the plaintiff put in a certificate of title, issued to him under the " Transfer of Land Statute" (No. 301). On the 18th August, 1876, •I 3(il TURRENS CASES. !!'■;: the plaintiff applied to have the land brought under the statute. In the application, the land, and also contlgu- ouH land, was said to be unoccupied. The certificate of title was l88u««d on the 10th May, 1877. The defendant gave evidence that he had been in possession of the land for more than fifteen years ; that at the time of the plaintiff's application he was still in possession of a part of It ; and that he occupied contiguous land. This, It was contended, was a fraud under Sec. 153 of the Act, and rendered the certtflcate void. The learned Judge agreed with this view, and gave a verdict for the defendant, against which the plaintiff appealed jn the grounds, (1) That the plaintiff's certificate of title was, under Hec. 47 of the Act, unimpeachable and Indefeas- ible, and that the Judge ought not to have declared the same void under Sec. 153 ; (2) That evidence of the plaintiff's application to bring the land under the Act, and of matters connected therewith, was wrongly ad- mitted ; (3) That there was no evidence that the plain- tiff wilfully made any false statement in the application. Cock for the appellant: — The defendant tried to prove adverse possession, but had to abandon that defence, and he relied on the false statement In the application, as Invalidating the certificate of title, under Sec. 153. That section refers to false statements wilfully and fraudulently made, [*64] and the certificate ought not to be avoided and the plaintiff found guilty of a misdemea- nor, as a collateral matter in a civil action. The plain- tiff should be put upon his trial for the misdemeanor; and if he were found guilty, special proceedings would have to be Instituted, under Sec. 132, to cancel the certificate of title. It was shown that the defendant was aware of the plaintiff's application to bring this land under the Act, but, as he had not received a notice, he did not lodge a caveat. The certificate of title cannot be im- peached in this manner : Chisholm v. Capper,' Miller v. Moresey.^ 1 Vic. No. Cas. 60. * 2 V. R. L. 193; 2 A. J. R. 115. WlO'djys V. HAM MILL. 365 Quinlnu for the rospondont : — The Jndj^c is not re- Hponsible for the stateiiu'iit of the jfrouiulM of jii»pi'al iu the special caso. If, on any view of the fat'ts, the tind- injc of the Judp' can be snpported, this (^ourt will not in- terfere: Edelinan v. Heynenian.^ The defendant set up adverse possession for more than fifteen years (our statu- tory period), and the Judjie has decided in his favour, on a conflict of evid«*nce. The decision may also be sup- ported, if there appear to have been fraud on the part of the plaintiff, other than that which would be a misde- meanor, — legal fraud, so to speak, as distinguished from criminal or moral fraud. The omission to state some- thing which would have prevented the issue of the certi- ficate of title is a legal fraud as much as that on which the decision in that case was based. [Htawell, C.J. — The only fraud relevant to this case, is a fraud under Sec. 153.] The Judge, as a jury, has found fraud ; how can this Court disturb tliat finding ? [Stawell, C.J. — Because there is no evidence of the fraud which alone, under Sec. 153, could invalidate the certificate.] Stawell, C.J. — It is possible the decision might have bwm supporttni on the defence of adverse possession, without going into the only question on which the learned Judge has actually decided. [*05] One objection set out in the special case is, that the Judge ought not to have declared the certificate of title void ; he has signed the case so stated, and we are asked to ignore that objection. We cannot do so. As to fraud under Sec. 153, though it is unnecessary now to decide the point, it would be only just that a person charged with such a fraud should be tried by a jury ; the language of the concluding i>art of the section apparently implies a conviction for a criminal offence. Such a charge ought not to oe suddenly sprung upon a litigant in a civil suit. There seems to have been merely a mistake, and a pardonable one, in the application to bring the land under the Act. It is immaterial whether th'^ defendant was misled by it ; nullus reus nisi mens sit rea. * Ar,'as". Nov. 2G, 18.VJ. % ■™nff * ^ < 366 TORREyS CASES. As it is said that tliere is a good defence of adverse possession, it would be better tliat tlie case should be reheard. Appeal allowed ; case to be reheard. Attorney for the nppellnnt :— W. S. Woolcott. ^♦torney for the respondent :— Prendergnst. I'!!*' Ui?:;;:: Victoria, 1870.] [1 V. K. (E.) 11. ROBERTSON v. KEITH. Eeal estate — Sheriff's sale — ** Transfer of Land Statute " — Certi- ficate of title — Adverse possession. The defendant bought at a sheriff's sale the estate and interest of W., registered proprietor of land under the " Transfer of Land Statute." Part of this land had been previously sold by W. to the plaintiff, who was in possession, and before and at the salt; gave the defendant express notice of his interest. The defendant became registered proprietor of the allotment under a transfer by the sheriff, and brought an action of ejectment against the plaintiff. On bill to restrain proceedings in ejectment, and to constitute the plaintiff registered proprietor of the land in his possession. Held, that his interest was that of a tenant within the mean- ing of Sec. 49 of the statute, and decree made as prayed. Observations made upon the terms " adverse possession " and *' fraud " in that section. In April, 1865, James Western bought from the Crown two allotments of land at Steiglitz, and in May. before the issue of the Crown grant, sold part of the allotment to the plaintiff, who paid his purchase money and went into possession, but obtained no transfer from Western. In November, 1868, the defendant obtained a judgment against Western, who, by the issue of the Crown grant, had then become the registered proprietor under the " Transfer of Land Statute " of the whole allotment, part of which had been sold to the plaintiff. The sheriff sold all Western's estate and interest to the defendant, and a transfer from the sheriff in the form prescribed by the " Transfer of Land Statute," schedule 15, was registered, constituting the defendant registered proprietor of the whole allotment. Before, and at the time of the sale, the plaintiff, who continued in possession, gave the de- , )iW r^w: JiOBERTSO.y V. KEITH. I 367 fendunt express notice of his interest by protest and otlierwise, but lie did not lodge any caveat against a transfer to the defendant. The defendant brought an action of ejectment against the plaintiff, who consented to a verdict, on the terms that the defendant should not sign judgment or issue execution until a day named, and that the verdict should be without prejudice to the right of the defendant at law to proceed as plaintiff in equity. The plaintiff (defendant at law) now filed his bill against the plaintiff at law for a perpetual injunc- tion against further proceedings in the ejectment, and to be constituted proprietor under the " Transfer of Land Statute " of the land bought by him from Western. [*12] Mr. Lawes for the plaintiff :— The defendant having bought at a sheriff's sale, can take no greater in- terest than that of the execution debtor. The transfer under the statute is of the debtor's estate and interest, and Western had no interest as against the plaintiff in the land sold by him to the plaintiff. The notice given by the plaintiff and the formal protest against the sale of his land, made the defendant's purchase fraudulent as against the plaintiff, and qualified his right under the certificate of title, fraud being an express exception to the absolute title given by Sec. 49 of the statute. The plaintiff was also in adverse possession as against the defendant within the meaning of Sec. 49. The statute does not destroy equities : Maddison v. McCarthy,^ Raleigh v. Glover.^ Mr. J. W. Stephen and Mr. a'Beckett for the defen- dant : — It is immaterial by what process the defendant became proprietor, whether by transfer from the sheriff or otherwise ; being registered proprietor, the only ma- terial consideration is whether the defendant's interest can be brought within any of the specified exceptions to the absolute character of the registered title. Sec. 50 of the statute disposes of the exception of fraud by provid- ing that express notice shall not constitute fraud, and there is nothing but notice in the present case which 1 2 W. W. A a'B. Eq. 151. 2 3 W. W. A a'B. Eq. 163. f 'I'mmR 368 TORRENS CASES. can be ui'jjed as fraud by the defendant. There in no deception or inducement to tlie plaintiff to abstain from perfecting his title or any other misconduct which could be held as fraud under the section. The exception as to adverse possession is of rig'hts subsisting under it, that is, of a title matured by adverse possession under the " Sta' tute of Limitations." The section does not recognise adverse possession as a right in itself. The defendant has omitted to lodge a caveat to protect himself under the statute, and has allowed the plaintiff to acquire a statutory titie which cannot be impeached. Mr. Lawes in reply : — The plaintiff's possession at the time of the transfer to the defendant is undisputed ; and if he had no rights under an adverse possession, he had rights as a tenant, and his tenancy is protected under Sec. 4J). Under the terms of his tenancy he was entitled to hold the land in fee, and the defendant's cer- tificate is srbject to the plaintiff's interest. [*13] Cur. adv. vult. i MR. JUSTICE MOLESWORTH :— The facts of this case are, that in 1865, after the pass- ing of Act No. 140, a Mr. Western purchased land at a Crown land sale. Afterwards, before the issue of the Crown grant, he sold part of it to the plaintiff, Mr. Rob- ertson, for a price (£33), half cash, half bill, by agree- ment in writing. The plaintiff continued on the land and built at a cost of £70. He afterwards paid the bill. He neglected to register his transfer with the registrar under Act No. 140, Sec. 99, before the Crown grant to Western issued. Western sold another part to Mr. McGonigal. The Act No. 301, " Transfer of Land Statute,'* was afterwards passed. The defendant, Mr. Keith, re- covered a judgment against Western for £64 10s. 9d., is- sued execution, and on 0th February, 1869, the sheriff sold to Keith the right, title, and interest (if any) of Western in the land (except that sold to McGonigal), and in adjoining land, for the sum of £13. The plaintiff at the sale protested, and gave the most distinct notice to the defendant, the sheriff and persons present of his 1 . ROBERTS-ON v. KEITH. :»{{> 2 is no n from li could in as to that is, le " Sta- cognise fendant f under jquire a 38iou at isputed ; ssion, he irotected ' he was int's cer- r. vult. title, but ouiittt'd to lodge a caveat against registration of transfer under Act No. 301, Sec. IIO. The sheriff executed a transfer to the defendant, IDth March, 18fij) (reciting that Western was registered ais proprietor in fee simple), of the estate and interest of Western as re- gistered proprietor ; and on the same day the transfer was registered and certificate of title issued to the de- fendant, making him a proprietor under the Act. The defendant relies upon the 47th, 40th, 50th, and 100th sections of the Act No. .'iOl as giving him title. For the plaintiff, it has been insisted, firstly, that the sale, because it was by a sheriff, did not defeat his equit- able right. The 10 Vic. No. 10, Sec. 170, authorises the sale of '* all interest to which the execution debtor is " entitled in lands and real estate which he might, accord- *' ing to the laws of Victoria, have disfwsed of," by whicli the sheriff could convey the legal estate of the debtor, and the same protection against equitable claims, as the debtor's conveyance would give ; that is, free from equit- able claims of which the purchaser had no notice. The Act No. 301, Sec. 100, says that the transfer from the sheriff shall have the same effect as if made by the pro- prietor — that is, as if made by the proprietor under it- self ; an opposite intention is shown as to assignments to ofHcial assignees in insolvency — Sec. 107 — who are to hold subject to equities, but enabled to sell discharged of eos8iession ; if thien they And persons in pos- session claiming as here, the matter may be brought to a crisis by the proprietor demanding possession, which, if refused, will make the tenancy adverse, and) then the Act will be operative to give title, subject to the difficulties of occupants protected by the 3 2M. & W. 894. « 9 Q. B. MS. $^ :■< ''<•! 1 :i72 roHliliXH CASKS. •'Statute of LlniltationH." Hucli dcnmnd of poHWHslon will ^ivc tlu* occnpi?!' notice of the necewsity of preserv- ing hit) rightH by prompt action. I do not think that either Raleigh v. Glover'* or Maddison v Mcnial of ciiirnt — Practiiyt by trhoiii autnwonH to he Hi'ifnci! — Ajfuhtvit, wlii'n to !»• filed. On ail iipplicatioii to iviiiovo a cavoat it Ih not nocoHsiiry tlmt the HumnionK Nhould >m> MiKia> Higned Ity liiH aMHociuto. It in not niu-cHMury that uu Htlidavit in HUppurl of hucIi MiiniiiicnH glioiiid he filed upon tlio isnue of tho Hnninionn. it Hliould Ih> HIcmI within u rcaHonalde time before tho rctnrn of tho HiiininonM. Snniinons icfcrrcd to the Full (-otirt by Holroyd, .f. This was a siiininons under Si'c. 117 of tlu' "TninsftT of Land Statute" (No. 301). calling upon Wall to hIiow cause why a caveat lodped ajjainst certain land should not be removed. Holroyd, J., in referring the summons to the Full Court, sujjgested the followiu}; questions at practice : — (1) Is it necessary that the summons to show cause be sifjned by a .Tudjje in Chambers ? (2) Would it not be sulHcient for the Judge's associate to sign and issue the summons ? (3) Whether it is necessary that, upon the signing and issuing of the summons, an affi- davit should be filed ? (4) Would it not be sulticient for the affidavit to be served and tiled a reasonable time before the return of the summons ? Hodges in support of the summons. [*48r>] No appearance on behalf of the caveator. Per Curiam. [Higinbotham, C.J., Williams and H(»l- royd, JJ.]:— We think the applicant is entitled to an order to remove the caveat. With reference to the ques- tions asked as to the practice, we think it not necessary that the summons should be signed by a Judge in Chambers, and that it is sufficient if it be signed by his associate. An affidavit need not be filed upon the issue of the summons ; it is sufficient if it be filed within a reasonable time before the Return of the summons. Solicitors for the applicant :— Davies. Price & Wighton. w^ a74 Ti>HHK\S CASKS. ViCTuKiA, 1870.' [1 V. K. (L) 105. COLONIAL BANK v. ROACH. Truant at will — KjertimiU — '* iramftr of l.inil Stotiitr," h, UK Wlifii It. IiimI t'Uti-n >.Hi ■eekiiiit tu eject him thotu- M«'lv«'H derlvtHl tit!»'. Ii«'lii*itlc«l to a tli'iiiand of poHMcH^ioii. A teiiaiiry at will ia ** an liiten-Mt " witliin Sec. 49 of the '••rriinHfiT of LantI Statato." KuU* uiHi to «*ntfi' a vfidlct for dt'ft'ndaut. TIiIh waH an a«tion of ojectinent. Tlu» factH wove Hluu-tl.v ^l» followH : In \H'M the defendant became ten- ant of one Hniih UlanH of foi't.v-six aereH of land ; and a few veaiH afterwards (JlaHK l)ou};;lit for the defendant an additumal twent.v four arreH, the defendant agreeing to pay him the purehase money liy inHtaiments, and GlasH giving the defendant a leane of the land for four yearn, and agreeing that when tlie hiHt iuHtalment was paid de- fendant Hhould have the fee. (llasa aftt demanded possession from defendant before action. [*1(;<;] Casey and Holmes moved the rule absolute. Ireland, Q.C.. Fellows and Dr. Hearn sliewed cause. The arguments appear fully from the judgment of the Court. The cases iited were Keech v. Hall,^ Doe d. Martin v. Watts,^ Rex v. Collett,^ Right v. Beard.* Sec. 49 of the 1 1 S. L. C. 523. 2 2E9p. 501. 3 K. & R. 498. * 13 East, 210. COLONIAL BANK i. ROACH. 87& "TriinHf«'i* of Lund Statntt'" whh uIho rltod on bohnlf of the plaiiitifTH. Tur. adv. viilt. Htawcll, ('..!.— Actltm f holder an indef(>aHlble right both at law and in cipiity ; the certitlcate being conclusive evidence not merely of his title Imt alHo of bin right to the iKWHession. Ah regards the pi^emises not comprised in the certifi- cate of title, there can be no doubt that the defendant was entitled to a demand of possession. With reference to the parcels comprised in the c<'rtiflcHte of title, S<*c. 40 of the Act contaiins a jiroviso " that the land included " in any certificate of title shall be deemed to be subject " to any riglits subsisting under any adverse i)osse8sion " of such land ; and also where the possession is not ad- " verse to the interest of any tenant of the land, notwitli- " standing, the same respectively nmy not be specially "notified as incumbrances on such certificate or instni- " ment." Now this as an interest in a tenancy at will may be very small, but still it is an interest, and the p^sses- Hi<< wliidi i'tlll<'iil«' of tlll«' iliti not |toHr4fM>i. Tliiii HiMiloii «>iial>li'>4 u iiion ^iip'«> to filler into |)OHH)>MMioii. or luiii^ mi iiction of <'J«Mi!iiciit ; Init IIh' ikHoii of fjciiiiifiit Im t(» lie hroiiuht Iti (hr roilllf tiiillllH'l' III wllicll he llli^lll IlllVf hroiiKht Mlicli anion if tlit> iiioi>t){ii);i' iiioiifv lind Ih'«>ii h*tiiii>iI (<» liim by an aKMiiniiir«> of tlir U>inx\ cMlalt* in \hv la ' luuri pip'd oi* cliar^ftMl. It nia.v HiTiii a Hoiii(>\vliat lart;*' |h>>v«'i- to ronft't' iipoii anv iHMHoii to ciiablt' liiiii to lirinir ('Jfrlniriit wlini he Ujih no titli' \vlial«'V«T, but w*' think, piittinj; it iit lln' v»My liifflM'Kt, it (locH not |»la««> tli(> iiioi'tpi^i't' ill a b 'tt<'!' poHi foil iliaii tile ouiiri' ; that la* lioliU thf i(>rtiti«'al<' of tith' siibjcrt to Him'. 4!) ', ami that li<> (iiiiiiot Hilililt'iiiy rliatiK*' a |M>rson ri;;ht fully ailiiiitlcil into portHCHsion iiii dtr a ronlract, into a tic^^iiassi r \vith a {ircvioiis demand of possession. \Vr iliinii, therefore, that the planititTs fail-d. and that a nonsuit stioiild be eutere«l. Att«irney« for plaiiitifTs .— Viiu^;litin, >[oule A Hi'diloii. Attorneys f«r ilofviidaiit :--Htorlin(4 A Murpl.y. VicT(»ui.\, 1«71.] [2 V. R. (E.)20. HUKW V. .JONKS. '* 1 raiixfif I'/ I. mill Sttitittf'' — Slitrifl'M Kdlf — /')(.);• fnirclmiir — I'lifxiiit muliir. I*ur»'liiiK«' «t 11 Hlicriff's hhIo of tlu' iiit«'n'st of n ri'KiHtcrod |»ro- prictor. iK-rftTtcd liy transfer, ht'ltl voiil «m iiKiiinst tlic pluintilT'H int«Tfst UH |irii>r imrrlniKcr irtmi tlio r«'>{ist»'rt»tl |)ro|)ri<>tor, hut nood ax HKiiinst tli<' rc»rist»»r«'d i>roi)ru'tor'H ri^lit niid intorcnt In r»»H|H>('t uf unpaid pnrcli:iMi> money. Ddl. clmruin>{ fraud and collusion aKaiustt a solicitor dianiissed «s Htrniiirtt Idni hut witlntut costH. Suit to liave the rejjistered pnijirietor of land und'r the "Transfer of Land Statute" declared a trustee for the plaintitt's, on tlie ;;i'ound that tlie ciM'titicato of title bad been tained by fraud and in collusion with the plaintitTs' sidicitor. Tlie plaintiffs were George Brew and Ills wife, and the olticial assijrne? of Brew. The land, the subjet^t of the suit, had been pupchoHed from HRKW I JnS/r.S. 877 «l«'f«'ii Imhii«> of tli«' Crown nvwut lu th<> v«>iirc|llifl".<4 Mill*'. iiikIii- an cxt'cntioii a^ainMl tlii' vriulor. Tlu' f<>ii (hint Norton, who had forni<>rl.v acted a>« Hollritor for lh<- wif(> in th«> nialtt'r of h«>r piinham', and fur the huMhand in till' matter of an advanee h,v .loneH on tite Hecnrlt.v of (lie land, pvornred aH for .lonen the Crown uvnui to Ivenned.v wliirli had been Hnlmi'i|uently iMHiied, and also a rertilleate of title to .lonen, aH entitled to the f«>e under tlie Hlu'ritT'M Hale, .lonen' title under th<> rertitlrate wan iinpeaehed Ity thin Huit. an having heen ohtaiix'd in frauti of Mrs. llrew'H ri^jhtw. Tlie fa« In are more fully Htaled in the Jml^ment. Mr. .1. W. Stephen for llie plaint IITh :— Tlie ahHolufe titio under the "TrauMfer of Land Statute" in Huhjeet to exeeption under See. 4!>, in llie eam' of fraud, and of art ual oei'upatitm of tlie land liy : tenant. Tin* plaintitTs are entitled to tlie Itenelit of liolh exceptionn : Koltert son V. Keith.' Xothin;^ jMiHHed l>y tlie Hherlff'H sale, v\ cept the vendor's li^iit to Hie Italance of purehane money due l»y Mr». Hrew. Kennedy, tlie vendor, in a neceHHary party in respect of this interest. N(M*ton, who was cogni- sant of all tile facts, and acted throuKlKuit aH the Holicitor of the Itrews, was instrumental in obtaining an abso- lut<' title f«M' .Jones, to which he knew .Jon(»H was not entitled. lie is, therefore, answerable to the plaintilTs for tlieir costs of the suit : Marshall v. Sladden.- [•21] Mr. Holroyd foi- the defendants :— The bill treats .|on<>s as having n to pay the purchase money due to the Crown ; tluH he denied in his answer, but admitted upon the taking of evidence. There is a conHict of evidence as to what lie was instructed to do to complete her title. He did nothing ; and so left it exposed to be impugned by per- sons claiming under Kennedy. She married 18th July, isa5, the plaintitf, George Brew, who took possession and cultivated. Brew had dealings with the defendant^ John Jones. On 27th May, 1867, he gave his acceptance for £300, payable a year after date ; also, a bill of sale over the freehold half of tlie said 160 acres, farming im- plements, horses, etc.; also, an agreement charging the land with the amount of tha acceptance, and authoris- ing Norton (who acted for both parties in this transac- tion also) to hold the deeds of the same freehold [*22] as security for the loan. The defendants have sought to show that Mrs. Brew sanctioned the charge upon the BREW V. JONES. 879 property, but I think they have failed, and tliat she only knew of the loan as chai't^ed upon j?i*owing crops and chattels. Her husband could bind the land to the extent of his marital interest, but she, as a married woman, could not be bound, even by express agreement. On 9th October, 1867, Brew voluntarily sequestrated his estate, describing the 80 acres as his property, charged with £300 to Jones. The plainti£F, Mr. Shaw, was his offlcial assignee ; he never attempted to take possession. Both Mrs. Brew and Jones allege that they have since been in exclusive possession ; in the taking of the accounts they will find it to their interest to change these allega- tions ; they seem really to have been scrambling for it. Mr. Robert Dunlop, a creditor of Kennedy, obtained a judgment against him, and issued execution, December, 1807, and there was a discussion between the Brews, Jones and Norton as to what should be done with it, whether to caution purchasers in regard to Mrs. Brew's interest, or to purchase in, and thus get a simple title from Keiiineiiy and screen the property from Bnnv's other creditors, which seems to have been Norton's ad- vice. There is some conflict of evidence as to the Brews' concurrence, and I think, on the whole, that Jones, with- out it, purchased Kennedy's interest from the sheriff for £46, and took a conveyance from him. The Crown grant of the 80 acres, dated 1865, was issued to Kennedy prior to December, 1868 ; Norton, acting for Jones, procured it from the Land Office, as on Avhose behalf does not appear, but I presume as for Jones, purchaser at the sheriff's sale ; and being armed with it and the evidence of the slieriff's sale 4th March, 1870, he procured a certi- ficate of title from the Land Titles Office for Jones. TTw- bill was filed 0th July, 1870, by 'Shn. Brew, her husband as her protector, and Shaw, who could claim only as assignee of Brew's marital interest. It omits all notice of the loan transaction between Brew find Jones ; it describes Jones as purchasing at the sale with full notice of Mrs. Brew's title ; it states that Norton pro- cured the Crown grant as solicitor for Mrs. Brew, and, fraudulently colluding with Jones, handed it to him 1f, ^ 380 TORRE. VS rXSL'S. and procuivd for him (he ((M'tittculo of title. Tlu» bill seeks to have the land conveyed to the plaintitTs a(rcord- ing to their respective titles, they offering to pay the balance of £20, and it seeks to make Norton responsible for costs. Jones' answt'r sets up his claim for £300, as if it affected the entire freehold — not merely Brew's marital interest. [*-•?] As to Norton being made a defendant, he was wrong in not securing the phiintiff. Mrs. Hrew's, interest, ap- parently inadvertently regarding her as fully repre- sented by her husband; and subsecpicntly he was wrong, in being a party to Jones procuring a title which might be used j)rejudicially to her interests, without securing them. But the bill totally omits facts mitigating his apparent rt-3d by a decision of the Su- preme Court of a neighboring colony upon the s;itnc devise. His course, if an nppeni depends, is to postpone the determination of the application until the question has been finally decided on appeal. But, as he is the guardian of the assurance fund, the Court would be slow to certify " that there was no probable ground for such refusal," so [*315] as to deprive him of his costs of a summons under sec. 135 of " The Transfer of Land Statute." When, in the investigation of title, one objection appears which she commissioner considers fntal, yet all questions on the title hould be considered, the applicant ought not to be compelled to take out several summonses on one title. Hummons to the Registrar of Titles to substantiate and uphold the grounds of his refusal to bring certain land under the operation of the "Transfer of Land Sta- tute." The registrar's statement concerning the title to the land was that William Hutchinson died on 20th July, 1846, having by his will dated 20th December, 1845, devised as follows : — "I give and devise ante my trustees all the property at Mel- bourne (being the land in gaeBtion), to bold to them, their execntors, adminigtrators and assignH, daring the life of my daugbter £. Bow- man, upon trust, to receive the rents and profits and pay the same to her separate use without power of anticipation, and immediately after her decease to the use of all and every the children now bom or here- after to be born of the said E. Bowman by her present husband* 384 roJlREMS CASKS. W. Bowman (except the eldest aon, M. liowtimn), ecjually to bo tli- vificfl between tliem ah tenants in rommon in tail male witl> croHB remainders between thtni in tail male." Near the end of the will wjih a piovino in these terms : — " Provided alwa.vR tliat, if any person whom 1 have made tenant in tail male shall be Ixirn in my lifetime, then I revoke the devise so made to him, and in lien thereof I i;ive and devise ihe hereditaments comprised in snch devis<' and appointment to the iise of the same person respectively for the term of his or lier natural life, and after his or her decease to the use (vf his or her first and every other son successively aceordinj; to their respective seniorities in tail male." The testator's daujfhter, E. Bowman, died about 20th Auj^ust, 1849, leaving six 4*lrildren (besides M. Bowman) born of her by the said W. B(»wman, all of whom were born in the testator's lifetime, and before the date of his will, one of whom died under age and without issue, on 2r)th March, 1866. Since the death of the testator, all of the six children above mentioned (except the one who died as above stated) assuming to be tenants in tai^ have executed deeds purporting to be disentailing deeds. In 1874, they contracted to sell the land in question in fee simple, and the purchasers then applied to bring the land under the "Transfer of Land Statute." That appli- cation was rejected by the then Commissioner of Titles, Mr. Carter, Q.C., it being considered by him that all the grandchildren of the testator born in his lifetime (ex- cepting M. Bowman) toiok life interests only. On [*316] 26th June, 1876, W. Bowman (one of such six children above mentioned) died intestate, and administration of his estate was granted to W. Lynch. In 1878, the judg- ment of the Supreme Court, upon a special case in the action of Lynch v. Johnson,^ was taken upon the con- struction of the aforesaid portion of the will, when the Court held that W. Bowman was entitled in fee simple. But in a subsequent case in the Supreme Court of New South Wales, upon the same devise, that Court decided •the other way, and an appeal to the Privy Council from U V. L. R. L. 263. KX PARTE BOW. VAX. :W5 that declHion is now pending. The applicants again ap- plied to have the land brought under the Act, claiming to be owners in fee simple, and argued the judgment of this (\uirt in Lvnch v. Johnson ' in supiM>rt o( their ap- plicatiim. Tlie following wer«» the grounds of refusal to bring the land under the operation of the statute : — " That the question of ownership in fee simple of the land applied for, as required by Sec. 17 of the statute, is not at present settled by a decision binding upon all parties who may claim to be entitled under the said will ; and that the risk of bringing the land under the Act, in favour of the applicants, in fee simple, is not such as, ill my opinion, the assurance fund should be called upon to take. The property is valued by the applicants at £00,000. The title is otherwise long and complicated, but the aforesaid objection being considered vital, the other portions of the title have not been gone into." The case tirst came before the Court in Trinity term last, when the Court directed the case to stand over until after the decision of the Privy Council upon the appeal from the Supreme Court of New South Wales. That appeal having now been determined in accordance with the previous decision of this Court the case was now again set down for argument. Molesworth, for the Registrar of Titles : — As the question is now finally settled by the decision of the Privy Council in Gibbons v. Gibbons,^ the registrar offers to proceed with the farther consideration of the applica- tion. Webb, Q.C., and a'Beckett in support of the sum- mons : — The registrar bows to the decision of the Privy Council, but he would not yield to the decision of this Court in Lynch v. Johnson. In these circumstances, the applicant ought certainly not to have [*317] to pay the costs of the registrar. We ask the Court to certify^ 1 4 V. L. R. (L.) 263. 2 6 Ap. Ca. 471. H.T0R.CA8.— 25 880 TOltRK A'S CASKS. under H»'o. V.Wi of the '•Transfer of Lund Statute," thai there was no ground for tlie refiisal of the registrar to bring the huid under the Act, ho that eacli party may bear his own eostH an in Re PatterMon.'* Tlie conuniH gllmer luid no riglit to set up his own opinion against the decision of this (Jourt upon the very same devise In tlie same will. It is not to the ptirpose to allege, as is stated in his behalf, that the same (piestlon was before the Court of New riouth Wales, and that an appeal was pending In the Privy Council ; no question as to this land could be raised in the Court In New South Wales ; It Is only an accident that the same will has been consi- dered by the Courts In both colonies. The commissioner is bound by this Court. [Stawell, C.J.— In this case the assuranw fund has to be protected, if possible.] The effect of a Itnowledge that the question would probably be referred to the Privy Council from the neighboring colony should have been at most a postponement, not a refusal, of registration. The registrar has put the ap- plicant to unnecessary expense and trouble In refusing to proceed further with the investigation of the title ; he has no right to force the applicant to take out a fresh summons for every Individual objection, as the inquiry proceeds ; he Is not justified in assuming that the Court will agree with him in considering one objection fatal, especially in view of the previous decision. If he had proceeded with the inquiry into the whole title, it might have been completed by the time the decision of the Privy Council became known, and the applicant would have been spared a very vexatious delay. In strictness, an order ought now to be made that the land should be registered under the Act at once, as the Court decides that the only ground of refusal stated has not been sub- stantiated. The assurance fund would have been suffi ciently guarded If the registrar had simply determined to hold his hand, after the termination of his investiga- tion of title, until he could ascertain the decision of the Privy Council. If the Court should allow the re- » « V. R. (L.) 128, 3 A. J. R. 92. EX PARTE now MAS. 3N7 glstrar hl« coMtM, tlu' uppIWant Ih entitled to I'lulin un ordwr for the Immiu' of a certlHcate of titU'. [•:UH] MoU'BWoitU in reply :— The Court ran hardly say that the reKistrar had no probable j?i'»»"'' «'i'f»» iug to register, wlieu he \va« aware tliat X\w Supreme (3ourt of New South Wales had taken a different view from thlH Court, on the same provJHlon of this very will, and that the matter was under appeal to a Court whose decision might overrule that of this Court. He had alsr<*tiilant lM'«-amo tln> piin-liiiHtT. Tlif Iniitl won roKlHtorod uixli'r " TraiiHft>r of Liiinl Htutiito." Tli«> plniiitlfra hiihiI tht*
  • r<>ii(lHiit, DM tra!iHr«>n'«t of tlio i'(|iilty of riMli'inptloii, ii|h>ii X\w covenHiit to pay in thti mort^ai^u (t«-«(i. A veniict wi»m \*A'i entor««l for the |)luintifTH, loavo hitiii(( iVMfrvt'd to tlio d<>ffn nn<1 «>ntt>r u verdict for him, or n iioiiHult. LawcM jmil WllllamH Hhowrd niUM«» ; — Tin* qiU'Htlon tiiriiH upon tlu' "TranHf«»i' of Land Statuff." TiuhM' S«m'. 49 tli<> proprU'tor luthlH Hiibjrct to hucIi incnnibranccH as may be iiotitttMl on th«> folinni of tin* rcyriHtvi*, and thiM Im 80 uotithnl on tho folium of d<»f«»ndant'H rpi'tlfli'at«'. S»m'. 1)0 (ji) mak4>H tlu' tiauHfH'c*' Iial)l«' aw if ho had «'ov«'n anted. Und»'r Him-. 10(}, tho pnrcliaHiT at a »alo under an cxtMMithm beconwH the proprietor. Sec. IKhb) iinpoHeH tipnn him the Hanie obllpitlonH and llabllltleH aw if lie had been the original prophetor. [FjMIowh, J. — Tlial muMt l)e tal to Iii«lcninlfy the original iiioitKKKor. (StrpluMi. .1.— What Ih tin* lliiilf you put on the llahilH.v?) Il iniiKt hv Hoin<>thlnK rhaiu«Ml uiKin (hr land. [Ht«'plM'n, .1.— SupiM»w half tln' niort- tfaj;«Ml land to hv tranHfrin-d to onr ptTHon, and half to anotlMT. Ih «Mirh HahU' for the whoh* d««ht, or how ?] Karh who Immouh'M iM'^lntrrrd proprh'tor will br liable ; |M'opl«> niUHt take rare of theniwelveH. Though the eflfett He«'niK abMurd, the wiu'dn are plain and niUHt be ^Iven effert to, until altered by the lii'^'lslature. [Stephen, .1. — There Ih a dltTeniue between holding land Hubjert to debtH and Iwlnjj liable to pay the debtn.] If the Art dtx'H not alter the law an to f<»rnier ri|{hlH, It niUHt \Hi deelanitory i>f It. Hut Hern. .11 and TtU do jjlve new rijjhtu ; S allows tlu' trjinnferei' of the niort((a)(e to HUe upon tlu' luortpine, — the eonverHe of thU cane. [Kt«*ph»*n, .1. — Thai rather prejudlrj'H your rontention, for that Hectlon dm»H tin* thlnj; «'xpreH8ly which you nny ill to Ih' implied her<».J (a) Kof, Hhall remain unpaid, pay interest thereon, or on ho much thereof as Hhall for the time bein^ remain unpaid, at the rate and on the day* and in the manner therein specifled," etc. «b) Sec. 110 : "Without leaaenlng or pr'iudi lugany of the other rip;htH, pow€M'8, and remedi« uv given and conferred, every proprietor and e\ transferee, when r<*j;iHtered, of any land, lease, mort};. i'. or « 'large, idiall. whilst iontlnnlnj; so rejpstered, have tli same e»tat«*s, rights, jtowers, and remedies, and be subject to the i»iime engagements, obligations, and liabilities, and may sue and be sued in his own name at law and in AWfilAI't^N liKI'OSIT I. LtmiK :mi any jfiven eree. arge, Name ct to and d in n|ullv, In n'H|M'rt tlu'M-of «»r tlM'r«Mi|Mm, In llko manner aH If he IiikI iM'cn tli<> original proprietor of the land by or with whom the iMiKi»jr«'inent, obllKation, «m liability Mued upon wjih tMitered Into or Intiirred, or the original leHtM'e, morl^apH' or annuitant." Dr. Mtukjiy, a'Merkelt tind Mehonpill were not called npon to Miipport the rule. FellowH, .1.— I do not think that the Art etTertK the alteration In the law for which the plalntlttH contend. It Im the duty of the Court to jfive the liejflMlalure credit f(H' not deMlrhiK to do an InjuMtlce. Of courMe, where tlie lanKUJi^'e of an Act U clear, the t'onrtH are bound to carry It urt to HuppoHe that the I^'kIhKi- tare meant to do an InjuMtlce, and to make one man pay another nan'H debt would be unJuHt. [•34] The plalntlffH in thiH cai*e contend that, under Sec. 1 10, the trandferee of a mortKage in liable for the mort- j?uge debt, in the name way aw the original propri(»tor WU8. If th<> transferee \% to have all the obligationn of the original mortgagor, there iH no qualification of that liability In the Hectlon. There Ih nothing to exclude hlti fK'rMonal debtH to the nuin who clalmH for work and labour done (m the land, or even to the butcher or l)aker. The obje<*t of the Act Ih to niniplify the trannfer of land, not to create new liabllltleH; It Is to make tht* trans- feree liable to covenants running with the land. There is no doul)t that Sec. JM) uses the word " binding," and on that the whole question turns. Hut "binding" must be read as "naming." The section provides that there shall l)e an lm])lled covenant binding the mortgagor, his heirs, executors, administrators and transferees. Well, supposing the covenant were inserted, what would be the effect of it ? The eflfect would be very little, so far as the transferee is concerned. It is some- thing like the case in Dwarris on Statutes, quoting from a Reports : " By the Statute de Donls, It was enacted that a fine levied on entailed lands was null and void, im^ ii| 392 TORRENS CASES. yot tho conHtruction put by tho ('ourt upon lliis wjw that it wtiH not null, but was only a discontinuance, the rea- son beluK that at common law siicli a fine had only the effect of a discontinuance, pvin^j; the fines under that Act the same operation as others." On the same principle, this covenant, if it were in the mortgage, would not run with the land ; for it is ab- surd to say that because a nmn purchases an equity of redemption at a sheriff's sale he is compelled to pay all the debts of the mortgagor. That is such a manifest injustice that, till the Legislature so enacts in so many words, we can not give it credit for attempting to do it. The mortgagee has still his remedy, as he had before, against the land. Stephen, J. — The question as to the effect of an im- plied covenant does not really arise in this case, as there is an express covenant. But Sec. 90, in its language, does give a clue to what was intended. The argument of the plaintiffs is that the purchaser of an equity of re- demption becomes personally liable to [•SS] pay the debt of the mortgagor. Under the previous law, he certainly did not come under any such obligation. The obligation of the purchaser of the equity of redemption was to indem- nify the vendor : and if the vendor was called upon to pay the mortgage debt or interest, then the purchaser of the equity was bound to indemnify him against it ; but the purchaser of the equity of redemption was not directly liable to the mortgagee. It was not the inten- tion of this enactment to improve the position of the mortgagee in that rt-^^pect. The real meaning of Sec. t'O is plain, as it includes executors and administrators ; it means to bind tlu^ estate of the borrower in the hands of the heirs, execut- ors, administrators, and transferees, and does nol make them personally responsible. Sec. 110 means simply that the land is to have attached to it various rights and liabilities. To put an opposite construction on the Act would manifestly be to cause an injustice. Rule absolute to enter a nonsuit. Attonieys for the plaintiffs :— Duvies & Campbell. Attorney for the defendant :— Cuddy. IN RE ARM IT AUK. 898 VicTOttiA, 1891.— a'Beckett, J.] [17 V. L. R. 17. . malve In the mattek of " TRANSFER OF LAND ACT, 1«90." In ue ARMITAGE, Ex parte ANDREWS. ♦« Tram/er of Land Act, 1890" (Xo.lliO), seat. 85, 86, 134— Pro- duction of cei'tijii-ate uf Title — Cuntnd;/ of vertifuate of title by murtifiiffec — MorUjaijor, df fault of. A. inorti;nfr''.i land to B.. niid by u rovennnt in t)i(> inortKagt> it waH |)rovi«U>«l thtit B. hIiouI)! have the custody of the certiticatu of title. A. trunsferred the laud to C'., who applied to B. to pro- duee the certiticate of title for the p«ri>oHe of. havitiK his transfer registered tliereon. U. refused to produce tlio document on t)ie ground that A., the mortKugor, vvus in default, and t' t it was pro- vided by tlie mortgage that the mortcageo should 1: -o custody of the oertiHente of title. C. took out a summons under Jec. 86 of the " Transfer of Land Statute, 18U0," calling upon B. to produce the cur> tifieat.*' of title. Held, that the provisions of Bcc. 1))4 of the '* Transfer of Land Btatnte, 1890," overrode the covenant in the mortgugo. and that, in tlie absence of special circuuistances, the mortgagee must produce the certiticate of title. When there has been default by the mortgagor, and in conse- quence of that default an immediate sale is contemplated, and for the purpose of such sale the control of the certificate by the mort- gagee is necessary, the Judge will recognize the right of such mort- gagee, and will refuse to make an order compelling him to produce tht> certificate of title on an application under Sec. 86. Suminons by one Andrews, tr.anaferee of certain lands, calling on mortgagees of same to show cause why tlie Crown grants and certificate of title to such land, in possession of mortgagees, should not be produced for endorsement thereon of transfer from mortgagor to transferee. The mortgage deed, dated KHh October, 1890, con- tained the following covenant : " And it is hereby further agreed and declared that the Crown grants, etc., for the time being of the land hereinafter described shall at all times during the continuance of this mortgage re- main in the custody of the mortgagees.'' The transfer by the mortgagor to the applicant, the transferee, was dated 29th January, 1891. The transferee subsequently gave notice to the mort- gagees under Sec. 134 of the « Transfer of Land Statute, ■I ',•> ■ '.f M 394 TORRENS CASES. 1890," to produce the certiflwite of title and Crown grants HO that his instnnnent of transfer might be regi«t<»red. Sec. 134 is as follows : " When, any instrument subse- quent to a first mortgage is made by the proprietor of any land, and such proprietor or the p<»rson entitled to [•78] the benefit of such subsequent instrument desires the registration of such subsequent instrument, the first mortgagee, should he hold the duplicate grant or certi- ficate of title which comprises the land in such subse- quent instrument, shall upon being requested so to do by the proprietor of the land or the perspn entitled to the benefit of such subsequent instrument, but at the cost of the person making such request, produce such duplicate grant or certificate of title to the registrar, so that such subsequent instrument may be registered." The mortgagees refused to produce the grants or certi- ficates, and this summons was taken out under Sec. 86 of the " Transfer of Land Act, 1890." The mortgagor, it was admitted, was in default. The attorney for the transferee in suppwt : — The ques- tion is whether Sec. 134 applies to a case where the mortgagor is in default. The transferee does not seek for possession of the grants or certificates at all. Sec. 134 was part of an amending Act, and was inserted to meet the case of a covenant such as the present in a deed. Weigall to oppose : — This clause was inserted in the deed for the protection of the mortgagee, and is not overridden by the Act. There has been default by the mortgagor. Cur. adv. vult. a'Beckett, J. — .^hls is an application under the " Transfer of Land Act " for the pi'oduction of Crown grants and certificates of title. The application is made by on'e Andrews, who is the transferee of the land from the mortgagor, and who desires to have the documents pro- duced for the purpose of having his transfer registered. The mortgagees contend that such an order cannot be properly made against them, and they rely upon two IN RE ARMJTAOE. 396 1 jfTivnts ;iatre this order should not be made. I fail to see sufficient grounds in that default for refusing to give effect to the rights which the trans- feree ha« acquired from tiie mortgagor. The Act did not intend that the mortgagor having given a first mort- gage should be deprived of the power of alienation. That alienation can only be eflfectually made by registration of the transfer. In this case it is said that the transfer is for the benefit of creditors. I do not think that affects the present case. This is a transfer to a person to whom 896 TOBRKAS CASKS. T '•:^ the inortKaj?or haid ai rl^ht to tmnHfer, and that i>orH()ii wisheH to havo his title completed. Ah to the defauU, if surh default had arisen, and in consequence of that default any imnnKliate sale was in contemplation at tlic time which would require the control of the documents by the mortgagees, and it would be for their convenien<'(' to have such control, I might, under special circuni stances, recognize the mortgagees' rights, and would sec that those rights were not hamp(»red by the mortgagor. Under special circumstances on the eve of a sale by the mortgagee, where it might be necessary that he should have control of the certificate of title, and the want of such control would interfere with his rights, I might refuse to make [*80] the order sought in this case. There are no such circumstances in the present case. I will make the order directing the production of the documents for the purpose mentioned in the sum mons. The mortgagees have put the parties to some expense in the matter, and I tlierefore make the order that they should produce the documents at their owu cost. I allow three guineas costs for this summons. Solicitors for applicuKt :— Bnvliara A* Pirant. Solicitors for niortj^agees :— T. M. Smith, Einmerton & Johnson. Supreme Court, Victoria, 1890.] 112 A. L. T. 10«. AUSTRAL OTIS COMPANY (Ltd.) v. ANDREW KERR & COMPANY. ^'Transfer of Land Statute " {Xo.301), sec. 50 — Mortijage — Fijcturex — Notice — Fraud. A mortgage of Land under the " Transfer of Land Statute " would cover machinery erected upon the land If either the machinery became part of the land, or if the owner of the machinery Is estopped from denying that such machinery became part of the land. Action by the Austral Otis Elevator and Engineer- ing Company (Ltd.) against Andrew Kerr and Company (Ltd.), claiming, (1) return of certain property or its value, £617; (2) a d'eelaration, if necessary, that the said pro- & Johnson. AUSTRAL OTIS CO. v. Ay DREW KERR ,t f'O. 397 perty is not subject to a certain mortgage, and that the phiintitf lias a riglit to enter upon certain land, and re- move tlie said property. Tlie facts are as follows : — By an agreement dated 2l8t September, 188H, the plain- titr let to Messrs. Hennett Bros, at a quarterly rental certain chattels in the nature of machinery. It was provided by the agreement that if Hennett Hros. should make default in payment of their quarterly rents, or should assign their estate for the benefit of their credi- tors, the plaintiff should be entitled to enter upon the premises where the machinery was placed and remove it. It was also provided that the property should not vest in Bennett Bros, until the plaintiff had received the Slim of £G17 and intercut thereon, from the date of de- livery until Dec. 3l8t, 1888, and then payable at the said I ate half yearly until the said property should be wholly paid for. In pursuance of the agreement Bennett Bros, took the machinery and placed it upon their premiseti at NewiMirt, of which premises they were the registered [>roprietors, under the "Transfer of Land Statute." In August, 1889, Bennett Bros, mortgaged under the statute the said land and property to the defendants, who took the saiid mortgage with full knowledge and notice of the plaintiff' H right ; it was declared in the mortgage that the sum of £719 Os. 7d. should be applied by Bennett Bros, to the payment among other things of the balance unpaid to the plaintiff under the agreement of Sept. lilst, 18S8. The said sum was never so applied. Ben- nett Bros, made default in payment of the quarterly rents, and in March, 1890, assigned their estate for the benefit of their creditors. The defendants took posses- sion of the laud, machinery, etc., and refused to permit the plaintiff to remove the machinery. Mr. Fink (with him Mr. Isaacs) opened the case for the plaintiff. Mr. Higgins (with him Mr. Topp) for the defen- dants. The articles claimed became fixtures ; that being 80, the defendants are entitled to retain them under the mortgage as the mortgage covers fixtures : Walmsley v. Milne, 7 C. B. N. 8. 115; Cliaiie v. Wood, L. R. 3 Ex. 257; i ■ m 898 TORRENS CASES. Hftlrined L. R. 4 Kx. :t2S. It Is uUeKod that tlu' defen- dantg hud notice of tlu' plaiutifT'H cluiin. Even if tliat were ho, it does not affect tlie position talten np by the defendantH: "Transfer of Land Htatute," Wees. 47, 50; Cullen V. Thompson, 5 V. L. K. (E.) 147. The defendants, however, luid no notice of the plaintiff's claim. As to what are fixtures : Boyd v. Sliorrocli, L. R. 5 Eq. 72 ; Holland v. Hodgson, L. R. 7 C. V. 828. [•109] Mr. Fink in reply : — The agreement between plaintitf and Bennett Bros, necessarily prevents the articles claimed from acquiring the character of fixtures till paid for. Moreover, in any event Hec. 50 of the " Transfer of Land Statute " would not apply, inasmucli as the plaintiff had nothing which could be registered; it is clear the defendants had notice from the terms of the mortgage itself of the plaintiff's claim, and fraud has been proved. He eitt»d Woodfall, 14th Ed. pp. G43, 645; WcmxI v. Hewitt, 8 Q. B. 913; Navulshaw v. Browning, 21 L. J. N. 8. Ch. 901, 911. Cur. adv. vult. His Honor : — It was much discussed before me whether the machinery, the subject of the action, or any part of it was a fixture. The machinery was all con- nected and used together. The brick bed of the engine and the containing wall of the boiler were firmly em- bedded in the ground. But there would have been no difficulty in disconnecting either the boiler or the engine from th'ei brickwork to which it was fastened without injuring the brickwork in any way. It was only neces- sary to unscrew the nuts, withdraw the collars or keys, and then remove the bolts. The machinery was pro- tected by a shed, erected only for that purpose, a flimsy structui"e, as one of the defendants* witnesses described it, and having a roof of wood and iron. The roof of the shed was put on by Bennett Bros, themselves, and not until after the machinery had been placed in position. In the course of the work some bricks were built over the front of the boiler, and a wall plate to support the roof was rested upon them. The effect was that the boiler could not be removed without taking off the roof mi ■■ AUSTRAL OTIS CO. v. ANDREW KERR A- CO. 399 and diHplacin^; wmic of th<' brlckH, or tukliiK out otn* ond of the contair.iiiK wall of tlu' holler, and one end of the Hhed. If Henaett Bros, had been the ownerH of the nwieh- Inery, and In the preHent caHe from relylii}; on IiIh agreement with Hennett HroH., (rt* 18 he deprived (►f the b«'netlt of it, aw the defendaniM* eouni4el <'ontended, b.v virtue of the oOth Heetlon of the "TrauHfer of Land Statutje?" In AugUHt, IHHIJ, the land and machinery were mortgaged b.v Mennett IJroH. to the defendantH. Jtefore the mortgage waw executed, tJie conveyancing clerk of the defendantw' Hollcltorn, b.v whom the InHtrument was prepared, and also the defendajitH' manager, must. In my opinion, have been aware of the agi'eement between the plaintiff and Bennett Bros, and of the nature of it, although they may neither of them have seen tlu' document Itself. The evidence of Thoums Bennett is strongly contli ;ned by certain clauses in the mortgage. These i)rovided that a sum of £71 U Os. 7d. should be applied In the first place to the payment of the balance whlcli might be due from the mortgagors to any person or persons to whom any sums of money were then owing in resp(»ct of any plant, machinery, or other things of the like nature then upon the land thereby mortgaged and purchased by the mortgagors on credit or time payment, and until full payment remaining the property of the persons supplying the same upon agreements for letting and hiring, and that all plant and machinery sunk into or erected on the ground, or in anywise af- fixed to any fabric or upon the land thereby mortgaged, should, for the purpose of that security, be deemed to be- long to and form part of the property thereby mortgaged as part of the freehold. The manager was furnished by Thomas Bennett with a list of the persons to whom Bennett Bros, were so indebted, including the plainttff. Most of those persons were afterwards paid, but the plaintiff was not. Thomas Bennett testified that he con- sulted the defendants' manager, and was directed by him to leave the plaintiff unpaid, the money being insuffi- cient to pay all the creditors. The manager denied this, AUSTRAL OTIS CO. v. AyPlilCn' Kk'nn .<• CO. 401 but at any ratf Im' allo\v«Ml Thoin;i« llrniu'tt to have ••ontrol of rlM» £71!>, iiiul took no of tlie land to which the nuu'hlnery wan annexed from Ilenib'tt Brow., who were the rejjiHtered propiietorH of tlie land, were pro- tected apiinnt all persons claimin); any interest in the land except in tin* <'aHe of fraud, and that knowledge of any trust or unrej^istered instrument affecting the land was not of itself to bt* imputed as fraud. The answer to this argument is, and in my opinion it is a conclusive one, that unless the nuu-hinery whith Bennett Br«)s. contracted to ptircluise from the plaintiff became a i)art of the land of whieli they were registered as pro- prietors, or unless the plaintiff is estopped from denying that sucli machinery became part of that land, the 50th section cannot apply to the ease. I have decided both these questions in the negative. The machinery remained u chattel, and is the plaintiff's chattel still. Minutes — Declare that tlie machinery mentioned in the statement of claim is not subject to the mortgage therein mentiiuicd. but is tlic property of the plaintiff. Direct judgment be entered for the ])laintiff for recovery of the said madiiiieiy. and order that the defendants ])ermit the i)Iaintiff's manager, or such other olflcer as the plsiintiff nuiy appoint for the purpose wivh such workmen and otlier assistants as may be necessary, to enter in the ilay time upon tlie premises of Bennett Bros., in the pleadings mentioned, and therefrom to separate and remove the said machinery, and to do all things necessary for that purpose, and take the said machinery away. I assess the value of the said mach- inery at £617. Direct judgment to be entered for the H.TOB.CA8.— 2fi 402 Tujt/tayn CASUS. I ■ piiiiiititT for £iM KM. (laiiiii^cH, and fONti* of the uetion to Ih> tax '<1. Solkitoni for iiliiiiitlfr :— Fink. IlcMt iiiul I*. D. I'lillliim. Koiicitorit for .ivftnf tin' '* Tnniuf'er of Luuil SUHutf." IVt 111^'inbothaiu. r.J., at pajje ♦554. The HtM-ond ultjtMi 1(111 iH fotnidcd u[ion tli<' "TruDHfor <)f l^iiid Statui*'." I •oiHiir in tli«* vi«'W put forward b.v tiM' d»*r*ndant that tin* Trown Is bound by thin Art, altliou^fli it \h n«»t cxpn'HKly d(>clai'<>d to bi* bmind. Tlif obj«M-tH of thiH Act an «tat«*d in tlu' {ii-oanible art-: "To };iv(> certainty to tlu> title in <'Mtat<'K iu Isuid and to fa«i litatt* the proof thereof, and alMO t«( render ttie dealinK^ witli land more Hiniple and less expensive." All theHe are objeetH of public and p'tieral as \«ell aH lii};h utility, and the Crown Ih ordinarily bound by Acts passed for the public ^ood though it is not named : IMowd. I'M'; Ma}:dah-n (Ndlejre Case (11 Co. Rep. 7()b 7Ihi). Moreiiver. the Crown shares with the subject the benefits and the aid of this Act ; and it is reasonable that the Crown should also be b<»und by its conditions. All lands granted by the Crown since the ctMumence- ment of tin* " Transfer of I.n bi'lialf of llio Crown, aH pn-HiMitrd in tlu> (li'Ht and H«'<(ind lines of iIiih Hultsection, uppi'ais to nie not to be limited by any (►f tlie Muliseqin-nt words, or to the casfM mention* d in the »ul>s«'qu«'nt parts of that HubsiMtion. I tl»inl< that the rnveai wlilcli was lod^^i-d was valid, and if valid it would luive continuinj: opera- tion, and would not laps** until proc(>c4t tin' transferee, as no fraud that wotild entitle the Crown to have the Crown jirant set aside has been proved against either of those parties. [This jud^jment was ap])ealerl>iddinK the liriiiKtiiK of luiul muliT tiic " TrauHfor of Luiiil StntutP," the Court or ii .litdK<' hiis no powor to niiiko an onlor niulcr St'c. 24, r«>MtruitiiiiK tlic roBiHtrar from liriiiKiiit; tlic land under the Act. Rule nisi to set aside an order of Barry, J. The present applicant, Joseph Aylwin, had applied on February 14th, 187S, to thp Hejfistrar of Titles to bring certain land under the "Trjinsfer of Land Sta- tute." On February 20tli, a caveat was lodged by the respondent, Mrs. Summerg, against such application^ 404 ro/f/?A;,V.S fASKff. but nh«* <1l«l not. wlihln a month of tho dnti». tnkn any pro(i'«>«'ii'iil jiiilMiiiitlon to t>M tubliMli Ik'I* tltlt' : nur dUI h1m> olitain an> injuiirtloii ur onliT to it'Mtniln th»* ivKlmrnr. On Manli -'.'»tli, Mim. SuniUMTM ulitaintMl fnuii Harr.v, •!., an onl«>r upon tlir Hf^'iMtnir of Tiili'M to MiiMpi>iiiliiip;M upon tin* Hjiid application until a oTtain ariion of rjcctnii'iit luoujjlit l»y Ayhvln ajcalnnt Mih. Kuiuiu»'i!* Mlioiihl Ur dctctiuincd. In lant tcnn, Aylwin ol)taint'd tlu* prrHonl rul<> to Met aMidt' thiM ordt'i*, on tli«> ^iimiid tluit tliccavtNit of tlM> [*11T] I'CHpondcnt had lapsed iH'foir th<'dalt' of tin' order, and that, after the lapHe of a caveat, a .lud){e had no power to niaixe an onler in the matter of Hueh caveat. Tlie reHpoiulent had hernelf, in •lanuary, IH77, ap|)lied to brin^ this land under the Htat uie, and t he pi eHeut appli cant had lodged a caveat against this application, follow- in;; it up. within a month, by iHHuiuK a writ of ejectment against tiie respiuideiit an the only proceeding open to hiui, though he claimed to be himself iit posMeHsion. The affidavits did not show wh(» was in fact in posseKsioii. That action waw iH)t proceefendant had. however, given the pluintitt notice tlicant against her. in respect of this same land and in support of his caveat. IMoceedings in a <'ourt of competent jurisdic- tion — within the meaning of the " Transfer of Lan«l Statute" (Xo. :{0l), Sec. 24— have been taken in respett of this same diHjJUte as to bringing the land under the Act. antl were certainly commenced before the la|)se of a month from the tiling of tin* resptuident's caveat. It is not necessary tlmt the «aveator should be the actor in such proceedings ; it is sutticient if pr(»ceedlng8 in respect of the same matter have been commenced to try the right. Nor is it easy to see what other course the respondent could have taken than to await the result of the a<'tiou of ejectment, as Ayhvin, by his action, ad- mitted that she was in possession. If this order be set il^iViil' KX PARTK AYi.n'r.y. 40fl [akf any 111 to <>M K'tioll ov ith, MfM. i|itin till* ii|Mm llw Jccttni'iit iioulil Im> • ihm'hi'hI In* «'llV»'llt lt<' of till' ikI^i' hiul h rjivi'iit. ', tipplitMl Mlt )l)»pH n. follow •jtMtllU'Ht ; open t«> ♦Ion. Tlu' (HmckmIoii. ffcrtiial; T notl(M' londt'iit, ' by tlic rt of his jnriwlic- )f Land I'OSpiM't ndcr the lapHO of vcat. It he actoi' din^H in &nced to r coui'80 he result tion, ad- r be set hhIiN'. tli«' applhanf will tn- ahlf at oiire to obtain rejfi«- tratioM, ami the if.4pond<'iit will b«> dfprlvrd of tlit* land, of which III*' applbaiit adniltH, by IiIh action of fjecl- nifnl, that mIii> Im in poMMcMMlon. H«'c. 2:t kIvcm an alterna- tive ; the rt'KiHtiar, on receipt of a caveat, Ih t«» MU»t|N>nd |ir«HeediiiK in the matter until hucIi caveat . . . idiall iuive lapNt'd . . . or until an order In the matter Mhall have I n obtained from the Supreme Tourt or a .ludK<';" no limitation of time {m mentbuied In thlM latter clauMe, and the present order is In purMuance of that power. In Hec. 1.'4, the caveat does not necesMarily lapHe at the md of a month. [•IlH] a'Keckett in Hupport of the rule: — It Is denied that the respondent In in pimMeHKion. Tin* actbui of eject- ment wiiH c(»mmenced an th(> only proceeding; make hucIi an order as this. Kx. p. (iiinn - and Kx. p. Cunnln^'ham ■'* only /' (No. :i(»0), thoujfh not before the defendant was entitled to tlie lease. The number of the allotment was left in blank at the time of the execution of the mortiJ^aije, and was afterwards filled in by the plaintiffs' mauaj,'er; that was u material alteration which vitiated the instrument. [Holroyd, J.— The evidence of the manajfer was, that it was agreed between him and the defendant that he shoidd fill it in when it should be ascertained. The lease was4 sufficiently identified without the number of the allotment.] The lease was never executed by the lessee, BANK OF rii'TORlA v. M'MICHAEf. 407 t uiuKt iiMii, the l)Ht iiicapa- it u inoi't- trisU or y mort- » tindor ' vpnlict a lid, bi' (»Ht«Mi by I}?*' loan, v ill t'lc tn'slinj? »at H(M'- (1 bo an ranHac- of the iiiort- iHsiie of 1!)/' (No. ithMl to n blanlv lul was lat was niiiont. IS, that tluit he le lease of the lessee, the defendant, and «r» cannot be taUtMi to have been acei'pted by him. Per Cnriam. (Stawell. ('..!.. Hi;;inbotham and IIol- royd, JJ.) Kvj'n if the artion had been between two stran}<:(>rs, the defendant's objection to the blank in the niortpige ['^l] deed, havin);^ been tilled up after execu- tion, could not be sustained ; but here the defendant is estopped from saying; that he had not the title whi(;h he purported to jjive. There is no provis(» in Sec. Hi) re- straining iin interested party from attesting; an instru- ment ; and in this instance the uuumKer was not the niort^ajjee. Rule refused. Supreme Couivr, Victoria, 1880.] [15 V. L. K. 572. THE COMMERCIAL BANK v. BREEN. *• Tramjir of hni,l Stututr " {\o. 301), s,',-h. 84, 91, 03—F.ji'ct- tnent by inortifthiee — Peiinnul of jiiMsexnion — 'JVumwi/ of innrt- Si'«'. 93 of the Act No. 301 confers on a first luort^iidt'c uiulfr tlu' Htittutt', in aiitiitinii to tlit> ri]i:lits ami p'twiTs ;;ivy tluf lirt'vimis Sees. 84 to '.tl, tlic saiii*' rights ami rt'int'ilicx to wiiich he would linvo hiMMi «Mititl«>r of tlio It-Kul I'statc iimltT the old law, coupled only witli a riijiic in iW') mortgagors of (luiet eiijov- ini'nt nntil default. I'nh'Hs this ritiht amounts to a n'lh'miso to th« niorttiiiKor (which, at least where no time is fixed hy the inortKajfe for pnyinent of the money thereliy seenri'tl. it does not do), the mort- Kajjor Is only a tenant at snfferam-e. and. may he ejected by the mortKHtfcp without any detnaixl havin;; l>»'en made for payment. If no time is fixed for payment, the mortpiKor has only n ri^lit of a«'tion for breach of his rijrlit to quiet enjoyuient. Semhie. per Ilolroyd. .1.. the Tourt iloulitiiiK- If a time is fixed hy the murtv:a>;e for |)ayment of the money secured, the rijfht of quiet enjoyment j^iven by rtoc. 'J3 iiujounta to a redemise. Appeal from judjjm 'tit of FTifjinliotham, (\.J. The action was one of ejectment, and was tried at Ilallarat, when jmlpnent was ^iven for the plaintitT, and from this the defendant appealed. The material facts (which were admitted) are as foll<)ws : On the 30th March, 1887, a transfer of certain land at Bunj?aree was made by Bridget Bre!>n to J. Bourke. On the 7th July, 1887, Bourke, who was not then rejfistered transferee, mortgaged the land to the plaintiflfs, the rietor " of the land. By Sec. 44 of Act No. 872, it is provided that one document constitutes a suf- ficent demand. [a'Beckett, J. — Sec. 1)8 «'onfers certain rights and remedies on the mortgagee, but does it do so as between the mortgagee and a stranger ? [Holroyd, J. — Sees. 84 to 92 are to supply omissions from the instrument of mortgage, to indicate the powers and duties attaching to the position of mortgagee ; then ," and at red. By HU\VH K«»- T, 1887, t'HHion of K alleged ce found he plain ed letter g in the principal , but not I'h. 1«J*0, laud on inst MrH. lint : On letent for ^e cannol batute jv n ; if he the Act person s^ext, the j:e beings t, some Sees. ate thv» on here In See. d to the \ct No. H a suf- !l8 and between nissions powers ? ; then COMMERCIAL BAXK v. RREEy. 409 See. \y,\ eonfers «>n the mortgagee the legal and equitabl«> rightM which accrue to a mortgagee who has the legal estate under th«' old law as apart from the rights pre viousl.v given to him liv the statute]. Next, a notice to <|Uit should have geen given to the defendant : Col. Hank v. Uabbage ' ; Col. Hank. v. Koache.- The defendant is a tenant at will. [a'Heckett, J. — Is sht^ not merely a tenant by suffer- ance ?] No ; Doe d. Hull v. Wood.'' [Holroyd, J. — In the case of Tew v. Jones/ Rolfe, H., says, at p. 14 : " If a vendor renuiins in possession by agreenu'nt, the terras of that agreement will speak for themselves ; if nt»t he is a wrongdoer, and may be turned out by ejectment, an74] It has not been proved that defendant was wrongfully in possession. [a'Beckett, J. — Your whole argument depends on there V»eing a tenancy at will, and you have not shown how the defendant is to obtain that]. That wotild have been easily proved at the trial if it had been thought the p«»int would be taken. As to the dMuand being insuftirient — Massey v. Sladen " — ('leasby, B., at p. IJ), says: "The defendants are seek- ing to enfore the strict construction of a very stringent clause, by which the sum due is to be paid instantly on demand, without any delay, and on default the goods are to be seized. But if you are to enforce such a right you must make a demand which is specitic, you must let the debtor know what is the sum you insist on the » B V. L. II. (L.) 462. 2 1 V. L. R. (L.) 165. 3 14 M. & W. 682. * 13 M. & W. 12. L. 11. 4 Ex. 13. .■ i 1 * 410 TO/tltK.VS (ASKS. payment of." McDanald v. Rowe" Ih of usi» an to tlu' niuoiiiit of the demand not belnjf stated. There can be no defanit till demand, and the plaintifTM have not proved a prcipcr demand in this caHe. They cited >foore V. Shelley.^ Madden (Pnrvea, Q.C., and Hood with him) for plaintiff respondent. The argument for the appellants implies that the defendant is in the same imsltlon ar the mortjfJiKoi", and that she is in possession as tenant at will. [Holroyd, J. — We are ajfrt'ed that she in not a tenant at will.] Ser. *X\ amounts to a covenant and not to a demisr*. The statute ena7r)] He cited Vail v. IMair"; ('oote on Mortg'Jges (4th Ed,), (584 ; Preston's Hheppar/1's Touchstone (L'nd Ed.), Vol. II., 272 : Doe d. Paisley v. Day." Cur. adv. vult. The judgment of the Court [Holroyd, Kerferd, and a'Beckett, JJ.] was delivered by Holroyd, J. — This is an action to recover possession of certain lands described as allotments 2, ii and 7, sec 12, Parish of Bnnguree, County of Grant. The case was tried before His Honor the learned Chief Justice, who gave judgment for the « 3 A. J. K. 90. 7 8 Af). Ca. 285. 8 13 V. L. U. 502. « 2 Q. B. 147. COMMERCIAL BANK i. fiREKN. 411 plaintiff^ with rj»Hts, and from tliat jiulpiuMit tlw dcfi'u dunt now appeals. Th«' facts, so far as tln'v ai" mater- ial, are sliortl.v tlicsc : On tl»e :{Otli Man-Ii. 1SS7, tlie iand was transfitrt'd l»y Ilridp't l»oiirU»» (now Itiidnct Breen, tlie defiMulantl. th«' n'|jrist»'nMl jjnjprietor, lo .lolm Bourlie. On tlu- 7tli Jtii.v, 1.S87, ,Iulin Itourlie mortgaged tlie land to tlie plaintiffs, the ('ommcicial Banli. IJoth transfer and niortpi;:*' were rej;ist«Med on the KJtii July, ISH7. On tlie Htli October, 1MH7, John llonilie died. On the lUst July, ISM.M, tlie hank sent a demand in writing for the principal and interest due on llie mort)jaj;e in a rejjistered letter to Jcdm Hourke at his rejj^istcrtMl ad- dress. John I5ourk«> beinj; dead the demand never reached him, and no other person was rejjistered as pro- prietor in his place. The mortjjaj;e is in the statutory form, or nearly so, and contains a covenant " to pay to the said bank or its transferees on demand in writing; under the seal of the sai«l bank, or sijrn.'d in the name of or on behalf of the said bank by tlie pMieral manajjer or inspector of branches for the time beinj; of th<' Si-.id bank at Melbourne, or by the transferees of the said bank, and given to me, my heirs, executors, administra- tors or transferees personally, or left on the said land, or sent throu«;h the post otti;istered letter, directed to me or to tlie then proprietor of the siiid land at my or his address appearing on the register book, tie.' balance which sliall for the time being be owing by me, my executors or administrat' Of iulininiHtnitoiM." It was conttMulcd tlmt t!n* ilcmjiiul for jM.vnu'Ht wjm invaliil— llfHt, iiuw- innrh as it uu^lit to luiv*' HiM'cilU*! tli»* «*xa»'t nniount (laiuu'd instead (»f inakint; as It did a ^Mucral d«*iuand for "all the principal inone.vn and interest sei-ured by the mortgage;" and seeondly, inasnnieh as it was sent to a man who was dead. We were referred to various sectloLS of tlie "Transfer of Land Statute," aind more especially to See. 84, containing certain statutory powers and riglitw l>e8towed on mortgagees under tlie A<'t ; and it was con- tended for the defendant tliat as tliesi* sections gave no additional authority by which a mortgagee could sell otherwise than as prescribed, or eject, and as the d**- nuind was bad, the mortgagee in this case had no j)ower to eject or sell. It is difficult to determine the extent of the mortgagee's power in regard to the various sections to which we have been referred, or to any wlu'ther the deiiumd was good or not, but all that we need say is that this case is not governed by Sees. S4 to !»1 of the Act, but by Sec. !Ki, which reads thus : " In addition to and concurrently with the rights and powers conferred on a first m(»rtgagee and on a transferee of a first mortgage by this Act, every present and future first mortgagee for the time being of land under this Act, and every trans- feree of ii first mortgage for the time being upon any such land, shall until a discharge from the whole of the money secured, or until a transfer upon a sale or an Older for foreclosino tas the case may be) shall have been registen d, have the same rights and remedies at law and in rtiiiity lincliuling proceedings l>i'f inHtiiinicnt, all he ii;rhtH and r»'nint, or, aH it HocniH, tlii«t rlic inoi-t^a^or Hhall tak<' [*rt7S] tlic |)i'otltH until (l«-fault in payiucnt ino dofinitr tinio Itoinij; in HUt'li iimt ui<'Mti«)n«'«l » jh»' I!x« «I fur payni 'Ut of tin- iMoi'tyayr nioucyi, in «'ith»r of tli«*s(' caso.-t tin* proviHo only aniouniM to a covenant, and tin* nioi't};a};i>c may brin^ an action for tin* land at anv time witliout noti ■(>, altliou);h by the proviso he lie re<|uire«l to j;ive notic.* before entry, altlmu^jli tliere be a covenant for furlliei- aHMiiranceH by the nuu'tpi^or in case of default in pay nietit. The action can be brought altliou};h a bill of exchanm* has been ^iveu for the debt. In the earlier case of Poe v. (loldwin, where one of tlio trusts of a deed to wcure an annuity was to perniit the luort^a^or to rei'<'for(> if A. Imrpiin and h4'11 IiIm land to U. on condition to if imHim* If In* pay him £!tM>, and H. d«»th [•r»7!»] rovcnant with A. that \\v will not tako tin* protlin until default of ]»avm«>nt. r, or do more than confer upoti die mort^aKiH' the right to bring an action for breach of his right to quiet enjoyment. I ]ini inclined to say, yes, they would amount to a re- demise ; but this point need not be now decided. If, as in this case, no certain time is fixed for payment, it is not a redemise, and the defendant has uo ground of defence by reason of the demand alleged in the state- ment of claim being insuflicient, as the plaintiff can suc- ceed without it. The statement of claim alleged a de- maud of the principal and interest, default, and the defendant's taking wrongful possession. These allega- tions were immaterial ; the defendant was a mere stranger. It is contended on her behalf that as she re- mained in possession she acquired the character of a 41(i ro/f/^A.v.s r.i.sKS. tfiiniit at will, lint a VfiHlor who rciiiaiiiM In poMMCMMion aftfi- a (onwvaiHf Im not ti iciiaiit at all but a wroiiK (liNT : Tt'W V. .loiifM." That coiittMithMi th«M'«'fi»ri' failM. In all th*' |HiinlM contcndiMl fur \t\ the (Iffcndant we think Hill' huM rallied. Tlii' a|>|N'al niUMt li«> «liMnilMMi'i| with imhIm. Appeal (llHniJHMtMl with co.^Im. Solictor* for phii.f ffn l>«vi»'>» A ('i\ini»l»ill. Solicitor!* for ilcfi-inlaiit :— (iiiuiimni tt WalliK't'. VlCTOUI.V. 1HG7.— Mor.KSWojlTH, .1. 14 W. W. & n'R (L E. & M.) 20. In the Rkal Esr.vrE ok MAIUIAKKT HOOD, Deceased. An rxoiMitor to not. \l)tH of the iltM-tMiKtil. "ii (MTMon iiit<>n>Nti'il " In tli«> roiil cMtiit*' of IiIm tfMtulor within th** UH>aninK of Hvr. 67 of thi> " Trnnnfor of liiinil Stututf." nnd is not <*ntitl<'il to a riili- to nr untlrr ♦' t Art. .Mai'pirct HoimI, liy will «lat«Ml lH»f(H'»» th«» Art Xo. '2'M), iMMjueatli'Ml all Ihm* " niont'V and otluM* elTtM'tM " to luM" lU'pht'w and two ni»M'»'«. Tlu» iu»plu*w obtained pro bat*' as e.\«Mntor. areordinj; to tlie tenor. Mr. a'lieekett inovt'd. on behalf of the <*xert to ilt'hiM tiH otlitM* |iro|H>i'ty : hihI thi> riilt* 1m ii|»pli«Ml for, f«ir tlu* |mii-|m>h<> of rxonrratliiK KpiM'illnilly b«H|iu>(ith(>(l pn>|MM't,v, by i»fo|M'i't;v unx<'nitoi« Ih for tliU |mr|M>H<> to Im> trnit«Ml iim a per- Hon " iiit(>r«>Mt«>(l in llic (>Htat(\" [*-]] within tlic meaning of tli«> Act, a donttlc adniiniMtration will l»t> iirrfMMary. Till' Art <'ontainM no pnnixionM to nHM>t Mni'h a raH«> or to dcbtM arc to Im' )>orn<' by the real and pcrnonal cHtati', and th«' ^roat- cHt confnHion will Im* ranHcd nnlcHH tin* «'X(MMtor, who luiH to pay, 1m entitled to the laudM available for paynitMit Cur. adv. vnlt. Mr, JuHtlre Mob>Hworth : — In thlM caMi* the exeentor han, by applyln|{ for a rule to admlnlMter realty aM an InteMtaey, admitted aKainMf hin IntereMt aM legatee that llu> will did not paMM real eMtate. The nppli<'ation Im made by him aM exerntor, and not nM next of kin, and Im Hupported on the ground that the execntctr Im entitl<>ay them Is such an " Interest " In the real estate as is contemplated by the Htatute. At all eventw, the C6urt has a dlMcretlon. I should be disinclined to com- mit the administration to a person having only an in- direct Interest of this nature, and not a direct b«»neflclal Interest In the property to be administered. Had the appl^'-atlon been by a legatee dejMising to the exist«'nce of u^^bts exceeding the value of the land, and seeking a rule for the purpose of applying it In payment In ex- oneration of the personal estate, very nice questions of marshalling might have to be considered, with which I am not at present called upon to deal. The motion Is made on behalf of the executor, claiming the re%l estate U.TOR CA8.— 27 *.^.l tcr v^ a! .V . A5 IMAGE EVALUATION TEST TARGET (MT-3) MA * t/j f/. 1.0 I.I 1.25 li^llM IIIII2.5 ':: '^" 1 2.2 ;f e 12.0 1.4 !.6 vl ^ //, '/a 7 Photographic Sciences Corporation 23 WEST MAIN STREET WEBSTER, N.Y. 14S80 (716) 872-4503 m. '^ i\ V N> ,<-<^^ >\ o^ <> iV \ '""II'IWS' '" •''' m 418 T0RREN8 CASES. solely virtute officii, whithout stating any special circum- Btances, and I must refuse it. Supreme Court, Victoria, 1879.] [5 V. L. R. (L.) 462. THE COLONIAL BANK OF AUSTRALASIA V. RABBAGE. •• Transfer of Land SUitiite " {No. 301), sec. 49 — Adverse posses- Hion — Tenuncij precious to mortf/af/e — Ejectment by mortijaffee — Demand of possesaion. The poHscHsion of a tenant of a mortgagor, under a tenancy created prior to the mortgage, m not adverse to the title of the mortgagee. The tenant is not obliged voluntarily to attorn to the mortgajT'-f, and cannot be ejected by the latter, without a previous deman Jt rossession. Ejectnienv by mortgagee against tenant of mortga- go*'. T)(< I'' pstered proprietor of the land in question, one Bill a April 24th, 1877, gave to the plaintiifs a statutory m ?rtgage, under the " Transfer of Land Sta- tute." The defendant claimed to be entitled to a part of the land, under a lease for five years from Butler, dated April 14th, 1877. Default having been made in payment of principal and interest, notice to pay was given to the [*463] mortgagor on December 5th, 1878, the writ issued September 16th, 1879. The alleged lease was not registered, and the plaintiffs were not aware of it at the time of the mortgage ; and it was alleged that the mortgagor was in possession at the time of the mort- gage. In January, 1879, the plaintiffs' manager alt Oas- tlemaine asked the defendant to give him a letter ac- knowledging that he was in possession for the plaintiffs,, but the defendant refused.. The verdict was directed for the plaintiffs for all the land, except that under the defendant's lease, and for the defendant as to the latter portion. The present rule nisi was obtained to enter a verdict for the plaintiffs,, as to the latter piece of land, on the ground that, on the facts proved at the trial, the certificate of title to the said piece of land is conclusive evidence of the plain- tiffs' title to tbie said piece of land. COLONIAL DANK v. nAIiHAOE. 419 al oircam- l. (L.) 462. LASIA verse poases- by morttjfufee a tenancy title of the ittorn to the it a previous of moi'tga- 1 question, plaintiifs a Land Sta- te a part )m Butler, a made in pay was 5th, 1878, eged lease t aware of leged that the mort- rer at Cas- letter ac- plaintiffs,. or all the e, and for esent rule plaintiffs^ [ that, on lof title to the plain- McFarland showed cause : — The plaintiffs were aware, at the time of taking the mortgage, that the de- fendant was in possession as tenant. The interest of the defendant is saved by the last part of the proviso of Sec. 49 of the "Transfer-of Land Statute" (No. 301), as the interest of a tenant of the land where the possession is not adverse ; so the plaintiffs as mortgagors, took sub jeet to the defendant's tenancy. Even in a case cf a tenancy at will, which is "an interest" within this en- actment, ejectment could not be maintained without a previous demand of possession: Colonial Bank v. Rouche ; ^ the mortgagee could not sudd<'nly change a person in lawful possession into a trespasser. The mort- gagor was in possession of a part only, when this action was brought. Higinbotham and Williams in support of the rule : — I'ossossion under a tenancy at will has been held to be not adverse : Robertson v. Keith ; 2 and is not under the protection of the proviso as to adverse possession. [Sta- well, C.J.— The question is whether the tenant was bound to attorn to the mortgagee.] The title of the mortgagor was merely subject to the tenancy of the de- fendant, but that tenancy was not adverse to him. Un- der this enactment his rights are not preserved, unless his possession is [*464] adverse. [Stawell, O.J.— The ten- ant would be bound to attorn after the mortgagee had foreclosed or ejected the mortgagor ; but in this case the mortgagee has not foreclosed, though he might have done so.] The last clause in Sec. 49 would be super- fluous as to saving the rights of a tenant in possession, if he is in adverse possession. Cur. adv. vult. Stawell, C.J.— The defendant was a tenant of the* mortgagor, who executed a mortgage after the com- mencement of the tenancy, and the Court is now to. decide whether the defendant is a person who had «any nghts subsisting under any adverse possession of " the land he occupied, or whether his possession was "the 1 1 V. R., L. 165; 1 A. J. R. 136. 2 1 V. R. E. at p. 16:1 A. J. R. 14. K '. X k' '^ 'I^^^l ■' '- '^ E; ! '' '-^^^1 B; i is W f t, 420 TORRENS CASES. P^ f ii Intereat of any tenant of the land," " where the posaes- sion is not adverse." No demand of possession was made upon the defendant ; he was merely asked to recognise the plaintiffs as his landlords, which he declined to do. The opinion of the Court in Robertson v. Keith," seems peculiarly applicable to the present case ; there it wais held that the last clause of Sec. 49 prevented the certi- ficate of title from being a conclusive bar against the interest of a tenant of the land, whose possession is not adverse. I fully concur in that construction. The in- terest of the defendant, the tenant of the land, the cer tificate of title to whicb had been granted, could not of course be adverse to that of the mortgagor, his lessor ; and, as the plaintiffs derive title from the same root, the defendant's possession was not adverse to their title. What further steps the plaintiffs can talce to ob- tain possession of the deft »r ant's land, it is unnecessary to decide ; as far as the present proceedings are con- cerned, the defendant is entitled to remain in posses- sion, and this rule must be discharged. Barry, J., concurred. Stephen, J. — The Act repealed by the "Transfer of Land Statute " was not intended originally to deal with the rights of persons in possession of land ; the Act was intended to facilitate the conveyance from one owner to another. But it was thought that it could be con- veniently used for that further purpose, and a practice was [*465] devised in the Office of Titles of issuing the certificates indorsed with a statement that they were subject to rights of adverse possession. That practice was approved in the present Act, and carried a little further, so that, though the certificate of title is con- clusive against all other persons, with one or two slight exceptions, the rights of all persons in possession are preserved. The present case is clearly that of a tenancy, as to which nothing has been done to determine it. The f 8 1V. R., E. 11; 1 A. J. R. 14. JONES V. Park. 421 defendant hud a right to refuse to attorn to the plain- tiffs, and hii^ possession was not adverse to their title. Rule discharged. Attorneys for the plaintiffs :—Moule d; Seddon. Attorney for the defendant :— Crosswell. Supreme Couut, Victouia, 1879.] [5 V. L. R. (L.), 167. JONES V. PARK. *' Transfer of Land Statute" (Xo. 301), sec. 64— Act Xu. 610, sees. 2, 3 — Conclusiveness of certificate of title as to riyht-of-ivay. Whore a rigbt-of-way la specified in a certificate of title of the servient tenement, the correctness of the certificate cannot be im- pugned in an action iot trespass. Semble, if the parcels of the servient tenement have been errone- oasly described, the error should be corrected by another certificate. Declaration for that the plaintiff was possessed of certain lands coloured red on the plan in the margin, and was entitled to a right of way from the said land over a certain close to a public highway, and back again from the said public hip'iway over the said close to the said land, for himself and his servants on foot, etc., and the defendant wrongfully obstructed and fenced in part of the said way. Pleas : Not guilty and denial of ob- struction. The verdict was for the plaintiff, with nomi- nal damages. The plaintiff put in a certificate of title to himself, dated 20th July, 1878, giving him a right of way, as shown on the plan in the margin ; his evidence also showed that the defendant had put up a fence, reducing the width of the way from 10 feet to 8 feet 2 inches. Evidence was rejected of what took place before the [•168] issue of his certificate, as to the right of way and its boundaries. The defendant's certificate of title, dated 19th February, 1874, was also put in by the plain- tiff, showing that the defendant's fence should be 1 foot 9 inches further back from the way, and upon its face, giving the defendant a right of way as coloured red on ( . I m '-A ;-l-s SI .A 422 TORRENB CA8E8. f; -< the plan in tlu? uuirj?ln. The plaintiff tendered the Crown );ranta of tlie land, which were objected to and rejected. There was also put in a certificate of title to one HuKh I'eck, dated 30th June, 1875, and a transfer to the plain- tiff, dated 10th July, 1878. Tlie defendant tendered evi- dence of his occupation of a wedge-shaped piece of land, part of the plot coloured red in the defendant's certifi- cate of title, ranging from 2 feet 8 inches wide at the one end to nothing at the other, but this evidence was rejected. The defendant obtained a rule nisi to enter a verdict for himself on the ground that the evidence disclosed by the certificates of title of the plaintiff and defendant did not, nor did any other evidence, show that the de- fendant liad obstructed the plaintiff's right of way; or for a new trial, on the ground of the rejection of evid- ence to show that the land occupied by the defendant extended up to, but not beyond, his propp N.W. and 8. E. boundary as disclosed by his certificate of title. The defendant's contention was that the plaintiff's certificate of title, by inadvertence in the Office of Titles, comprised 2 feet 3 inches too much in depth, as shown by the original deed, and by the defendant's occupa- tion under his prior certificate of title. Williams showed cause : — The defendant cannot be allowed to go behind his own certificate of title ; it is conclusive, above all upon him. Under Act (No. 610), Sec. 2, the statement of an easement upon the certi- ficate of title is conclusive. Sec. 3 gives secure and indefeasible title to the right of way delineated upon the plaintiff's certificate. Helm and Dr. Dobson in support of the rule : — Act No. 610 is incorporated with the " Transfer of Land Sta- tute," No. 301. Of course, if the defendant's certificate is conclusive on this matter, there is nothing more to be said; but the Court will not hastily come to such a conclusion. Expressions used in an Act are not to [*169] be varied in another part of that Act, or in a subsequent Act on the same subject matter, unless a change of meaning is intended. Under Sec. 64 the cer- J0NE3 V. PARK. 42a 1lllcat»» may pive a rij?lit of way ovt?i' a road coloured brown on the plan in the niar^n thereof. Act No. 010, Hec. .M, requires the map to be endorsed on the certifi- cate. Strict compliance with the statute Is necessary to j?lve an Indefeasible right of way. Sec. 34 of Act No. 301 requires certificates to be in the form in the 3rd schedule, directing that the registrar shall endorse the particulars of dealings, etc.; the scheduled form speaks of the land being dellueat(>d on the plan In the margin ; thus a distinction Is made between the margin and an -endorsement. Act No. 610, Sec. 3, uses the word " en- do» sed." The validity of the certificate. In respect of the easement, depends upon Its strict compliance with the requirements of the Act. Per Curiam. By the Act No. 610, the Legislature, it is said, have impliedly authorised the registration of easements mentioned In that Act, whether relating to the servient, or the dominant, tenement ; but as both laws, the ** Transfer of Land Statute " and the amending Act, are to be read together, and as the requirements of the 34th section of the former are different from those of the 3rd section of th** latter enactment — the one re- ferring to an endorsement, the other to a plan on the margin — we are Invited to Infer that this power was not to be exercised. It is unnecessary to decide on the construction proper to be placed on this amending Act; but conceding that it is to have the effect contended for, and that both the sections refer to the same sub- ject matter, the requirements of those sections may, we think, be regarded as directory, not mandatory. Cer- tain easements may be registered ; and a certificate that the person named is entitled to an easement, affords •conclusive evidence that he is so entitled. We think sufficient answer may be thus given to the present ob- jection. . How an error, if really there is one, is to be corrected, we are not called upon to decide ; a new cer- tificate, with a correct description, might perhaps be issued. Rule discharged. Attorney for the plaintiff :— O'Halloran, Attorney for the defendant :— A. Grant. ■''! i. i I 424 TOUKENB CASES. I Supreme Couiit. Victoiua, 1879.] [5 V. L. U. (L.) 285. DAVIDSON V. BROWN. Appeal — Countif Court — Nonsuit in deference of opinion to Jmhjc. Where a plaintiff in a County Court Bubniits to a nonsuit In deforonce to tlie exproHHiun of un ndviTBo opinion by the Judtfo, tli«» propriety of suoli nonuuit is a question of law on wliich an appeal mny be based. Upon tt (rontraot for sule of land held under the " Transfer of Land Statute " (No. 301), in which the vendor undertakt's to sign a transfer, the purchaser is only entitled to a transfer under tlie Aot, and is not entitled to any abstract of title or production of docu- ments. Appeal from the County Court, Sale. The plaint was by a purchaser of land under the " Transfer of Land Statute " (No. 301), upon a contract of sale by which the defendant sold the land, and under- took to sign a transfer and to pay half the costs of the transfer. The defendant paid into Court the amount of half such costs The transfer was signed, and the pos- session of the land given to the plai ..tiff. He, however, insisted that he had a right to delivery of an abstract of title, and copies of all deeds and documents relating to the land, which were not in the defendant's possession. The Judge expressed himself strongly against the plain- tiff's contention, and the plaintiff, in deference to the Judge's opinion, submitted to a nonsuit. The case stated that the plainti£F "elected to be nonsuited." Kelleher, for the appellant, moved that the case be remitted to the Judge to amend the statement. Per Curiam.^ It is quite unnecessary to remit the case. A nonsuit accepted in deference to the expressed opinion of the Judge, does not prejudice the plaintiff's position on appeal; the propriety of the nonsuit then becomes a question of law. The position differs materi- ally from that of a plaintiff who elects to be nonsuited upon a failure of his proofs. The appeal was then argued. Kelleher, for the appellant. [•289] 1 Stawell, C. J., Barry & Stephen, .IJ. ■ DAVlDSOy V. BROWN. 4S5 WillinmH, for the n?«pondent, wuh not called upon. Per <*uriaiii. Tho trunHfer under the Act was all that the plaintiff wuh entitled to. Appeal dismissed. Attorney! for the appellant :— Deuoroft A Smith, for Patten , foi* wllicll Nott brouKlit an arllon of tn'Hpuw*, ns wi'll an for troHpaHH on tlu' whole Htrip, in whlih he rerovered judfln"<*nt; this judffiuont waM aftiTwardH re»triote»d by a Judjfe'» oi-dnT to thj' part beyond th«» Hfrip. Nott th«'n appMcd to the Uej^lHtnir of TitloH to reiflntor hiH bind under the "Trans- fer of Land Statute," inohidiuK the w-hob.> of the bind eoniprim'd in the action of treH[)aHH. Thereupon Gunn lodged a caveat in rewpei't of the rectan^uljir Htrip. Tlie prt'Hent rul«' nini was obtained in laHt term, be- fore tlie exijiraJlon of tlie caveat, on tlie ground that tlie prewent applicant had no other remedy ; he could not brin^ ejcitnient becauHe he waH in poHHCHHion of the land ; nor wnH any remedy open to him by suit in equity in the clrcumHtances ; while if a certiHcate of title were to Issue under the Act, and the holder of it were to {*37] obtain possession, the owner would be unable to dis- possess him. The caveat would have lapsed unless SDUie proceeding had been taken within a month. Williams showed cause : — The only section of tlie *' Transfer of Land Statute " (No. 301), under which it is pretended that the Court has the power to nmke the order now sought, is Sec. 24.* But it has already been decided that a Judge in Chambers has no power to make such an order, Re Power,^ and the Court is not put on any different footing by this section ; the order men- tioned therein, must be of a kind wliich the Court or Judge could previously have made. The Court refused to act in this way in Hodgson v. Hunter."* a'Beckett in support of the rule : — A jurisdiction is impliedly given by the words of the section. The actual decision in Re Power is fhait such an order conld not be made in Chambers. In Hodgson v. Hunter ^ Moles- worth, J., considered that the latter part of the section 'Sec. 24: "After tlie expiration of on t month from the receipt thereof, snoh caveat sliall be deemed to have k paed unleHS the person by whom or on whose behalf the same was lodged shall within that time have taken proceeding's in a Court of competent iurisdiction to establish his title ... or shall have obtained ... an injanotion or order of the Supreme Court or a Jucl^e restraining him (the registrar) from bringing the land under the Act." « 6 W. W. & a'B. L. 81. 8 8 A. J. R. 13. h'X I'AHTtC HUSS. 427 ••h Nott paHH on nt; this 'h oi-dij'r 1 to tho " Trans- he land n Ounn ip. t»rm, Im»- that tho luhl not of th»' n equity of title were to e to dlH- 'MH Home 1 of the ich it iH alve tlie dy been to make : put on er men- ■ourt or refuHed ctlon is actual mid not Moles- section he receipt person by tbat time } establisli m or order trar) from waM not inoperative, and that an ordtM* Hticli hm now Hou^lit eonld he made by tlu? Court, where u proper euMi Hhould be made out. Here we havf no other rem "ly rlther at law or in equity ; the applicant Ih other vine helpleKH to prevent the other party fnun talcing away fnmi him land to which he Iuih a title, and of which h(> iH in poMueHHion. The jud|?ment in the action of tn>HpaM>* Ih in favour of Ounn, in reHjKMt of the wtrip of land in qucHtion ; and tluit jud^nuent wouhl Im> inoperative if tlie Court eannot mal<«» thin order. Hec. 152 jjiveH the ('ourt power to malie rules and orders to regulate any proceedingH to carry out the proviHioiiH of the Act. the intention being th.it tlie <*o\irt Hlwuild HUpplement the Act wh«»re it is not Kulllciently explicit. [Fellows, .1. — Smeeton v. Collier^ decides that power given to the Court may be exorcised by a Judge, unless [•JW] the Act conf«M'rlng the power shows an intenti(m to the con- trary ; so that the decisitm in Re Power * would nega- tive jurisdiction in the Court ; that case, howev«*r, was not cited.] Williams in reply : — Re Power'"' is based on the fact that wliere the Act refers to a Judg' in Cliambers, it does HO in express terms. The efT<»ct of the dictum In Hodgson v. Hunter" Is merely that a stop might be put to tlu' proceeding to register the land, until evidence had been taken in some proper suit ; but in this case no action or suit could be commenced. No period is sug- gested for tlie desired stay of proceedings. If Sec. 24 does give the Court power to stop registration, such power will not be exercised, unless th'.» Court can see what Ih to follow ; it will not stop the registrar Indefinitely from doing what the Act commands him to do. [Stawell, C.J. — The Court could direct issues to inform itself as to any disputed facts. Fellows, J. — Just as in the case of a warrant of attorney alleged to have been obtained by fraud.] Where the Act intends to give any new remedy, it creates it in express terms, as in Sees. 128, « 1 Ex. 4S7 ; 5 D. d' L. » 6 W. W. A a'B. L. 81. « 3 A. J. K. 13. 184; 17L. J. (Ex.) 57. i 42H TutiMiys rAsta. 132. Am to iIh'Ii' IwIhk no oIIht ifiinMly, tin- party In |m>mm4'hhIoii (ill) liiiiiM<'ir apply to be rt^KlMtcrcfl an the (»\vncr, and tlit* rci^lMtrar will tlirti have to (leridt* ho< twtMMt the two. T(» (MUiH' to the fartM of the caw, though the atridavlt on wliirh tlilM nilf wiim ohtaint'd, all<>)j;(>H a li'Kiil title and poMMeHMion In the preMent a,ipllnint, the iiiiMwerin^; attldavitH Htate that the veHpondent U it' poHKeHMion and lian title ; tluM'e |m a direct oontliet. If we are in poHHcKHlon, the applicant can hrin^ ejectment. [F«'1lowH, .F. — If y until the caveat ham lapiHMl.] Stawell, (.'..I. — There In Hoiiie dilYlculty in the con- Mtructl(»n of Sec. '24 ; but the Intention of the Le((iMlatiire HeeniH to have been that the Court tthould have power to Interfere In such a ca»e an the present, and in the mode contended for by the present applicant. If it were not HQ, a case might arise in which there could be no redreHM for an undoubted Injury, and no proceedings [•IW] which a caveator could institute in support of his caveat, and so, with u valid objection to the applicant's title, he may yet have no means of preventing registration. I gather from the whole section an intention that the ('ourt may stop the registrar from doing that which would conclude the rights of any party interested, until an opportunity had been afforded him of contesting the applicant's claim. If the case of Re Tower conflicts with this decision, it must be considen*d as overruled as far as it does so. The present rule will be made absolute to restrain the registrar from proce8aing in the matter until further order. It will be for the present applicant to decide whether he will seek to have issues directed on the facts. It is not a case of costs, as the previous decision justified the opposition to the grant of this rule. Fellows, J. — The view taken in Hodgson v. Hunter, thot Sec. 24 gives this Court by implication power to proceed in this manner, is borne out by an analogous [L •■-- MX I'MtTK UU«i(. 421) CUM*' In whii Ik nil Art iiuuh' It hiwfiil for n'ltalii |m'Imoiih to apply to tilt' roiiit of KIiik'm Ki'IH'U for a iiiaiidaiiiUK, iiikI, tlu'it'iiiMUi, for tlir Court to Impilri' liit«» hU tllh', iiiitl provUlt'd what Hhoiild br done if IIm' '.'oiirl nliould award Hurli niandaiiitiM, without tliit'ctl.v glvluK power to award It ; vet the ('ourt hehi that Hiirh power was inipMedly conferred : H. v. llurwichJ The leHpoiideiitH v\\f,\\\t^ are n»>t eoneliidetl ; he may, If Murtlrh*ntly vm\- fldent in liiM poHition, • onvey the dlMputed land without regard to the claini of tlie preHeiit applicant, or talie any otiier proceedliiKH o|M*n to him outHide tlie provifdouH of thin Act ; the preHent rule merely preventM him from adopting; the Hiimmary procedure of the Act, in a caKc to which it Ih not properly applicable. The api* : Mnt's rlKhtM are in no wine atTecled by thin motion. Uul(> )ibsolut(>. AttiiriH'.vM for tho applirtiiit ;— ('riH|i, Lowin & IIi-i! rwlok. Attoriu'.v for the rcMiHtinlt'iit :— Alihott. [unter, Iwer to Llogous SururME Court, VicrouiA. I.s79.; [5 V. h. \\. (L) 157. LOUCH V. HALL. *' Titniti/W of Land Statutv" (,V«. :iOl), «/v«. 03, 01— -Anion hij tnortiiiiijor fur mn and occujtntion, Whcro the iiiortKiiKt'*' <>f laixl, uudt>r the " TrHn«f«»r of Liiiul Slatutt'," huH not rntt>rt'd into poMHoHnion, a trannf<'n'«> of tho luort- ({li^or may, witliout the consent of the inortfjii^'ec, niitintiiin an adtiun for ni«i> and occupntion a»;ainHt a p«'rHon who has hi-«>n k't into pon- HCHHion undor tho mortKiiKur aftor th«> date of tiic niort»;nt;t>, if there !•»' any evidence of ii recoKnition liy the defendant of the plaintiff'ii title. Action on the common count for upe and occupation. A verdict was entered by consei t for the plaintiff, leav=i l)eing reserved to the defendant to move to enter a non- suit. Tlie plaintiff held a certificate of title under the "Transfer of Land Statute," subject to a mortgage, she being a transferee from the mortgagor. On 27th May, 1874, one Byrnes married, having ex- ecuted a settlement of the premises in question upon his '8 A. & E. 919. t S'/ 430 TOnHKX.S CASKS. wife. On 7th January, 1873, a certificate of title issued to Mi-s. Byrnes. On 2Gth May, 1875, a transfer liaving been executed by Mrs. Byrnes to her father, Fltzpatriclt, a certificate of title issued to him. On [*158] 2(5th September, 187C, Fitzpatrick executed a mortgage to a banli, which was registered. In Octo- ber, 1870, Mrs. Byrnes died. On 16th April, 1878, Fitz- patrick executed a transfer to the plaintiff, Mrs. Louch, and on 30th April, ?878, a certificate of title issued to hiT, subject to the mortgage, a memorandum of which was endorsed thereon. In June, 1878, Byrnes, who was then in possession of the premises, gave up possession to the trustees of a creditor's deed then executed by him. About 1st July, 1878, the defendant agreed verbally with the trustees to rent the premises at £2 10s. a week, and then went into possession. In July, 1878, the plaintiff's husband called upon the defendant, and, after some conversation, said he was sorry he had let the defendant into possession, to which the defendant replied that he had been put into posses- sion by the trustees. He then asked the defendant to take the premises at £3 a week, to which the defendant replied that he would not give more than £2, and that the roof leaked ; Louch then said he would send up the plumber to repair it. For the plaintiff, it was stated that Byrnes had paid rent to her. It was alleged for the defendants that Byrnes never paid rent to anyone. On Gth July, 1878, the trupteesi gave to the mortgagee no- tice of the deed of assignment, and, on 2nd August, to the defendant not to pay rent to anyone but them. The present rule nisi was granted on the grounds that the plaintiff had not obtained the previous consent in writ- ing of the mortgagee, as required by Sec. 94 of the " Transfer of Land Statute " ; and that no evidence of an express or implied tenancy was adduced by the plain* tiff in support of this action. Hodges showed cause : — There was ample evidence to go to a jury to sustain a verdict for the plaintiff. This form of action is not based upon any demise : Wood- LOUCJI V. BALL. 431 fall's Landlord and Tenant (Sth Ed.), 666. In Church- ward V. Ford ^ the plaintiff had no title, and therefore it was held necessary for him to prove a distinct agree- ment by the tenant to pay him. In Sloper v. Saunders,^ also relied upon by the defendant, the plaintiff had no title, and no contract with the defendant. In the present case, the plaintiff has an indefeasible title ; there was a negotiation [*159] between her and the defendant, after which the defendant remained in possession. The mortgagor is uot prevented from suing if the action is one which Itie mortgagee could not have maintained. Hec. 84 of the Act No. 301, allowing a mortgage of land under the Act, provides that the mortgagee shall not be the legal owner, for it enacts that the mortgage shall not operate as a transfer. Though Sec. 93 gives the mort- gagee the same remedies as he would have had if the legal estate had been vested in him, that would not en- able him to sue a tenant of the mortgagor who became sudh after the mortgage ; his only remedy against such tenant would be to treat him as a trespasser, unless the tenant entered into a new contract with him : Moss v. Gallimore^ in notes, citing Evans v. Elliot.* Molesworth in support of the rule :— There is no evidence of anything amounting to an attornment by the defendant to the plaintiff, or a new contract bet.veen them ; there is nothing but a fruitless negotiation, in which they remained at arm's length. The defendant was put in possession by the trustees as stvangers to the plaintiff and had occupation, and he was warned by them not to pay anyone else. A mere wrongdoer could defeat this action : Cripps v. Blank ; » and the de- fendant is in a much stronger position. There should have been some evidence of a holding by him by the permission o^ the plaintiff : Tew v. Jones," instead of which It was shown that the defendant held contrary to 1 2 H. & N. 446; 26 L. J. (Ex.) 354. 2 29 L. J. (Ex.; 276. 8 1 Smith's L. C. (5th Ed.) at p. 550. * 9 A. 4 E. .342. » 9 Dowl. & Ry. 480. •ISM. & W. 12. Ifri P » 432 TORREXS CASKS. \ \ -4 ' :^'.!f the plaintiff. The plaintiff could not, by giving the no tice, make a contract between her and the defendant : Churchward v. Ford/ per Pollock, C. B. Under the '•Tranafer of Land Statute," neither the mortgagor nor his transferee can sue without the previous consent in writing of the mortgagee ; under Sec. 93 a mortgagee could maintain this action as there was money owing on the mortgage ; he can bring any action which the owner could, so long as there Is any money owing. The defen- dant had notice not to pay rent to the mortgagor. The proof Oi the existence of a mortgage nonsuits the plain- tiff, unless, under Sec. 94, he pfoves a [*160] consent In writing by the mortgagee. The mortgagee is, as long as the money is unpaid, practically the 6wner of the land. [Stawell, C.J. — That will not prevent the mort- gagor from suing for use and occupation before the mortgagee enters Into possession.] Per Curiam. No attornment is necessary. A recogni- tion by the defendant of the plaintiff's title, with proof of occupation, would be sufficient to sustain the present action. There was some evidence of such recognition and occupation, on which a jury might properly have acted. The powers conferred by Sec. 93 of the " Trans- fer of Land Statute" upon the mortgagee do not pre- vent the mot-tgagor from maintaining an action for use and occupation before the mortgagee enters into pos- session No consent in writing of the mortgagee was necessary In this Instance, for the mortgagee himself could not have brought the present action ; the mere sub- sequent vecognition of the mortgagee by the defendant would not have enabled him to do so, for he had pre- viously recognized the mortgagor*, and was Indebted to him for the occupation he had already enjoyed; proof of the mortgage would not have nonsuited the plaintiff. The case does not fall within the purview of the statute. The rule must be discharged. Rule discharged. Attorneys for the plaintifiC :— Davies & Strongman. Attorney for the defendant : — Bievwright. 7 2 H. & N. 446, 26 L. J. (Ex.) 354. WILKINSON V. BROWN. 4;}}) Victoria, 1870.— St a well, C.J.] [1 V. R. (L.) 86. WILKINSON V. BROWN. " Transfer of Land Statute " — Certificate of title — Evidence. A duplicate certiUcate of title under the " Transfer of Land Stat- utes " is admissible as prima facie e^idence of title in ejectment. At the trial of an action of ejectment, the plaintiff tendered as evidence of his title a duplicate certificate of title under the " Transfer of Land Statute." It was objected for the defendant that the duplicate certiflcatt? was inadmissible, and that the original certificate in the registrar's book should be produced as the best evidence, and the only conclusive evidence under the statute. The objection was overruled, and a verdict was entered for the plaintiff. Molesworth now moved for a rule nisi to enter a verdict for the defendant on the ground of the improper reception of this evidence, and that the defendant had proved an adverse possession for more than fifteen years, as to which latter ground leave had been reserved at the trial. Stawell, C.J.— The "Transfer of Laud Statute," Sec 47, enacts that the certificate shall be conclusive evid- ence, but it does not declare that the duplicate original shall not be prima facie evidence — as it may be altered or there may be two duplicates — and the certificate alone ip made conclusive evidence. But of what use is the duplicate if it is no evidence ? To grant a rule would only be to throw doubt on a matter on which we entertain no doubt. We are of the opinion the duplicate certificate affords some evidence of title. Rule granted only on the ground of adverse posses- sion. Attorney for plaintiff : — O'Brien. Attorney for defendant : — Wilkinson. H. TOR. CA8.— 28 484 TORRENS CASES. Supreme Court, Victoria, 1871.] [2 V. R. (L.) 111. In the Matter of THE "TRANSFER OF LAND STATUTE," AND IN the Matter of HENRY GEORGE WISE. " Trann/er of Land Statute" {No. 301), sec. 117—Caveat- to delay regi»tering — Jurisdiction. -Order A Judge's order ander the " Transfer of Land Statute," Sec. 117, to delay registering a transfer did not shew upon the face of it, nor did it appear upon the affidavits upon which tlie order was drawn up, that the order had been made within fourteen days after notice to the caveator. Held, that the order was bad, and rule nisi to set it aside made absolute. Rule nisi to set aside an order of Moleswortli, J. The order sought to be set aside was made under the "Trans- fer of Land Statute," Sec. 117, on the 25th April, 1871. The order as drawn up was that upon reading certain affidavits, and hearing counsel for the London Chartered Bank of Australia, upon Edwin Brett, the manager of the bank, giving an undertaking to indemnify to the extent of £200 any person against any damage that might be sustained by reason of any disposition of certain land specified in the order, being delayed, and upon such undertaking being lodged with the associate, the learned Judge did order and direct the Registrar of Titles to delay registering any person as transferee or proprietor of or registering any dealing with said land or any part thereof, for six months from the date of the order. [♦122] The affidavits on which the order was based, shewed that in January, 1870, Mr. G. H. Hayes, a miller, gave the bank a lien over the land (which was registered under the statute) by way of equitable mortgage ; that in November, 1870, the bank lodged a caveat forbidding dealing with the land ; that on 11th January, 1871, the bank instituted a suit in equity— London Chartered Bank v. Hayes * — to enforce their equitable mortgage ; that on the Slst January, 1871, the land was sold by the sheriff of Ballarat under an execution: Griffiths v. Hayes; > 2 V. R. Eq. 104. tir RE WI8R. 435 aside made that one of the bank officials attended the sale, and read a notice of the bank's lien, cautioning purchasers ; that Wise (a clerk of Haye«') bought for £200; that the sheriiT signed a transfer on the 9th February, and that this was on 3rd April, 1870, lodged in the Office of Titles. J. W. Stephen and Holroyd shewed cause : — There was no appeal from the decision of the Judge. The ex- tension of time to be given under Sec. 117 is a matter within his discretion : Shortridge v. Young,* Brown v. Bamford,' Waring v. Smith.* If the order be wrong it is a mere nullity, and does no harm ; it gives no title to anyone, and there is therefore no advantage gained by setting it aside. Bunny, Finn and Webb for the rule : — The caveator has only fourteen days after notice to him within which to apply to a Judge. After that time the caveat lapses, and no order can be applied for. It does not appear either on this order or on the affidavit upon which it was drawn up that the order was made within the fourteen days. On the contrary, it appears that the transfer was lodged on the 3rd April, and it is to be presumed that the notice was given by the office forthwith, yet the order was not made until the 25th April. When a Judge ex- ercises a new statutory jurisdiction all that is necessary to give jurisdiction should appear on the face of the order. In making this order the Judge did not act as a Judge of the Supreme Court, but under special powers which might have been conferred on the prothonotary or some other officer. Therefore the order ought to show all the matters necessary to give jurisdiction, and one of these was that the order was made within the fourteen days: Christie v. Unwin." [♦113] Stawell, C.J.— I think this objection is fatal ; the jurisdiction ought to have appeared on the order. "laM. &w. 5. »9Ib. 42. * 10 Jur. 924. • 11 A. & E. 373. 486 TORRENS CASKS. ii Hurry, J. — I am of the same opinion. When an order refers t<> affidavits and tlio facts to sustain it sufficiently appear in those affidavits, I thinlc tliat would be suffi- cient. Hut here the affidavits do not shew the facts necessary to sustain the order. Rule absolute. Attorney for applicant : — Samuel. Attorneys for respondent : — Bennett & Attenboron({h. Victoria, 1871.— Sta well, C.J.] [2 V. R. (L.) 39. MILLER V. MORESBY. «• Transfer of Land Statute," sec. 118—*' Land Act, 1865," sec. 22— Certijicate of title — Reyulation. A., an nncertificated insolvent, became leasee of an allotment under the "Lund Act, 18C5." His official assi^jnee was re|>iBter< 1 as the proprietor under the " Transfer of Lund Statute," but was not jgistered under the " Land Act." The assignee transferred to B., who registered this transfer under both Acts, and procured a certificate of ^itle. In ejectment against A. by B., where plaintiff proved these facts. Held, that if plaintiff had relied on his certificate of title alone he might have succeeded ; but us he went outside the certificate, and thereby showed he had not the legal estate, he must be nonsuited. Ejectment. — Moresey, an unregistered insolvent, be- came lessee of an allotment under Part II. of the " Amend- ing Land Act, 18G5." ISimson, his official assignee, was re- gistered as proprietor, under a Judge's order, made under Sec. 118 of the " Transfer of Land [*40] Statute." Simson sold and transferred to the plaintiff, who ob- tained a certificate of title under the " Transfer of Land Statute." The transfer from Simson to Miller V7a~ •:•:: gistered at the office of the Board of Land and Ys -■■'-. under Sec. 22 of the " Amending Land Act, ISGti. ' i r transfer to Simson, by operation of law, was wA registered. At the trial the plaintiff put in his certi- ficate of title, and also the Judge's order and lease, with endorsement of registration of transfer under the Land Act. The defendant moved for a nonsuit on the ground MILLER V. MORESKY. 487 of non-refjistration of the transfer by operntion of law to Hinigon. A verdict was entered feu* the plaintiff, witli leave to the defendant to move to enter a nonsuit. A rule nisi for p nonH.iit was obtained on the ground that there was no evidence of reifistratiou of any transfer from defendant to Himson, and that the order under which Simson was registered as proprietor was ultra vires. Higinbotham, T. a'Beckett and Box shewed cause : — The Court cannot go behind the certificate of title, which is conclusive evidence under the statute. The force of this evidence cannot be affected by other evidence put in with it, which is mere surplusage. The decision in The Queen v. The Board of Land and Works ^ shows that notwithstanding Sec. 22 of the Land Act the offi- cial assignee is entitled to tlie insolvent's lease without his personal attendance to register the transfer. The registration of such a transfer under Sec. 22 of the Land Act is therefore unnecessary, the sole object of the section being to secure the personal attendance of the transferee. Ireland, Q.C., and Hood for the rule wore not called in. Stawell, C.J.— If the plaintiff had rested his case merely on the certificate of title, he could not have been nonsuited. But he chose to go further, and produced evidence which shewed he had not tlie legal estate, but that the estate was in some one else. He must, there- fore, be nonsuited. Rule absolute for nonsuit. Attorneys for plaintiff :—Vaugl»ai), Moule & Sedtlon. Attorney for defendant :— Clevordon, for Cresswell. * 6 W. W. & a'B. L. 38. J 488 TORRKNS CASES. Victoria, 1871.— Barry, A.C.J.] [2 V. R. (L.) 193. MILLER V. MORESBY (second case). htjectinent — Lease — Certificate of title — Kvidence — No. 301, sec. 169. Section 159 of the " Transfer of Land Statute " (No. 801) doei not affect the concluBive character, an evidence for plaintiff in ejectment, of a oertilloKte of title to a lease ander the " Amending Land Act, 1866." Ejectment for land demised by the Crown under the " Amendirg Land Act, 18G5." After a nonsuit in a former action between the same partiea for the same land (reported ante p. 430), the plain- tiff obtained from the Registrar of Titles a new certi- ficate of title in substitution for that produced in the former action. In this action the plaintiff put in the cer- tificate so obtained, and gave no other evi'ence. The defendant prov*»d that when he obtained the lease of the land included in the certificate he was an uncertifl cated insolvent, and that he had never transferred the lease. The jury returned a verdict for the plaintiff, leave being reserved to the defendant to move to enter a non- suit ; and a rale nisi was obtained accordingly. Higinbotham, a'Beckett and Box shewed cause : — Sec. 159 of the "Transfer of Land Statute" does not affect the conclusive character of a certificate of title. The only object of the section is to prevent the statute relaxing the restrictions on alienation imposed by the " Amending Land Act, 1865," and to forbid the regis- tration of transfers in violation of its provisions. When a certificate of title is granted, it is conclusive evidence, and it is immaterial by what means the certificate was obtained, except in case of fraud. The judgment on the former action concludes the present. [*194] Ireland, Q.C., and Hood for the rule :— The defendant having become lessee as an uncertificated in- solvent, is still entitled to the lease, under the "Land Act, 1865," as nothing has been done since the issue of nil' itiikftipii: ■'■ MILLEh V. MORESEY. 439 the lease, which cuuld, by operation of law or otherwise, transfer tlie lease to any other person. The lease is in- alienable under the " Land Act," and by Sec. 169 of the " Transfer of Land Statute," the provisions of the sta- tute nre expressly subject to those of the Act. Sec. 49 of the statute enables the defendant to go behind the certificate in this instance to show irregularity in its issue, as it has not issued upon any application to brinp; land under the Act, or upon any transmission as defined in Sec. 4. Barry, A.C.J. — The Act of Parliament under which the certificate issues declares the certificate to be evidence of certain facts ; it is not necessary to prove the preli- minary steps taken to procure the certificate. As re- gards the title to the estate the certificate is mado con- clusive evidence that the person named in it is proprie- tor in case of freehold, and lessee in the case of leasts- hold. This has been put so clearly on several occasions when the question has been before us, that it is not necessary to do more now than adopt the expression of the Chief Justice in a former argument in the same case where the plaintiff failed : — " If the plaintiff had rested his case merely on the certificate of title he could not have been nonsuited." On the former occasion the plain- tiff was not content, but fortified himself, as he imagined, by going into evidence prior to the title. On this occa- sion he rests on the certificate, and the defendant goes into the other evidence ; but that cannot prejudicially affect the plaintiff's title. We think the certificate is conclusive evidence of title ; and that the plaintiff rest- ing on it alone cannot be nonsuited. Rule discharged. Attorneys for plaintiff :~Vftughan, Moule A Seddon. Attorney for defendant:— Cleverdon, for CresBwell. 4«? rOitAAW.V OAHHS. r i VicTOKiA, 1MH7.— Webh, J.] [13 V. L. R. 9:j. McCLUSKEY v. FKAMK. Pi'tirtice — Supri'ine ('niirt — ^'Tvamf^r of Land Sttitute," ners, llii, 117— Caveat — ''i'lmnty Coutt Statute, 1809," nee, 100 {lll.iti VIII.)— County Court jurwiiction — Coutt, Qiioire, wlietlier the County Court hftn any jtiriadiotion to dt-al with mnttera uriainjt out of cuveuU lodged under tlie "Tranitfer of Laud btatute." The queHtion of cofita beinij entirely in the diHoretion of the Court, the Court will not limir them to County Court ooata in un action in support of a caveat under the " Tranafer of Land btatute," even aaaum- iug that the County Court would have had juriadiction to hear the case. ' Action by IN'ter McCluskey against Johanna Pranio, A. C. Groom, and the Ucjj[lHtrar of Titles, clahnlnK that the plalnttlT wan entitled to be registered as mortgagee of certain land In the parish of Caliban, county of Tal bot. The defendant Johanna Frame, In March, 18H4, gave to the plaintiff an equitable mortgage over the land, on which a sum of £28 us. was now due. Subsequently to getting the mortgage the plaintiff lodged a caveat In the Titles Office against any dealings with the land witliout notice to him. In July, 1880, the defieodant [*U4] Jo- hanna Frame, exi;Hnited a legal mortgage of the property to the defendant (iroom to secure a sum of £200 ad vanced by him, and an application was made to the Registrar of Titles to have this mortgage registered. The plaintiff opposed the application, and brought the present action in support of his caveat and to restrain the Registrar of Titles from registering the mortgage to Groom. A written consent to judgment signed by the solicitors of the plaintiff and defendants was pro- duced, and it proposed, among other matters, to refer the question of the costs of the action Into Chambers. Skinner, upon this consent, moved for judgment In terms of the consent. There seems to be some doubt whether the solicitors for the parties can consent to judgment because of Order XL!., r. 9. MeCLUSKHY v. FRAMK. 441 [W»'hb, .1.— That iul«» m«m'iii« to he expicHHly din'rhMl HKuiiiHt It. TliU Ih how«'Vt'r anotl.." qiit'stliui. TIm' par- tl«>M have no |K»w«'r to vvtw into Ohaiiib tm the ipiiMtioii of COMtS.] Then the euwe iinmt proreeil. [The Htnteinent of cliilin WUH then prov»Hl.J No appearanee for any of th ' defendantM. Webb, J. — Order the defendant Mrn. Frame to ex eeute a U'^al n»ort>{aK«' <>f the prop.rty t«) the plaintiff, and order thf HejjlHtrar of TWU'h lo rej;lMt«'r It when executed, in priority to tlie mortpifTe of Mr. < J room. Or- der the defendant MrH. Frame to pay tlie plaintiff's rontrt of action. IIl^Kii>M< f""' ^J**' defendant MrH. Frame, now applied that th;' order an to rowtH ttliould be varied by Kivtn){ County Court eostM only, InaMmueh a.n the action wa« to enforce an equitable niortKa^^' f<>i' i---** '">»• only. There in no doubt that the action could have been brou);l t In the ('ounty ('ourt under Sec. 100, Hub.-necH. (III.) and or ilcn [niiKiut. llll.)] or in all |tr«>(iint of InJnnctionM [mih. mcc (VIII.)]: I'atrlicll v. Maiinitoll.' Hklnncr for tlu' plain Mff : — It Im Miilmitited tliat Mince \\w rejM'al of Hoc. KM of tln' "Coiint.v Court Statute, 1H«0," tlilM matter 1m «'ntirHy in th- dlMrn'tlon of the Court unUer Order LXV., r. 1, t'X<«'pt in niMOM of con- tract wlierc, hy r. 12 of that Order, County Court coHtM are only to be jfiven in aver« £50 or lewi. Myern v. DefrieR, cit-.'d contra, ifi an authority only for the proponition that the old practice will be regarded in apporti<»ninK the liability for coHtH between the partieM. HegideM, Hec. 100, Bub.Hec. (III.) of the "County Court Statute, 1809" (No. .'t45), doeM not apply to eaHeH involving; any diftl- culty : Murphy v. Mitchell ;'' and thiH wan a case in- volvinn the practice of the Titlen Otflce of very jfreat difficulty until the (H>int which arlMCM in the caHe wbh recently decided by the Full Court in National Hank v. Morrow.* Webb, J. — In thiH «aHt* application is made on behalf of the defendant that I Hhould, in givinK judgment for the plaintitl" with coHtH, limit thowe costH to ('ounty Court costs. The action is brought for tli" sjiecitlc per- formance of a contract by which the defendant Frame agreed to give to the plaintiff a mor.gage ander the " Transfer of Land Statute " to secure a sum of money lent. [*!>(»] A caveat was lodged by the plaintiff with the Registrar of Titles under Hec. ll(i of the "Transfer of Land Statute," and this action is brought in aid of that caveat, and to restrain the registrar from register- ing a mortgage to the defendant (Jroom. I have very considerable doubt whether the County Court would have jurisdiction to entertain such an action. The cav- eat is lodged under Sec. llC of the "Transfer of Land Statute " (No. 801), and Sec. 117 provides that : » 7 V. L. R. Eq. C. »8V. L. K. Eq. 194. * 18 V. L. 11. p. 2. MtVLUSKKY I. FHAMK. 44.H " V\HM\ \\\v HMflpt of Miirh ravcat tlu' r«KlHtrar mIuiII uollf.v On* wiiiH' lo th«' |M iMon aK'tiiiMt wIiomo ai»pllnUloii to h«» r<'(jlHt«'n'«l aM proprl«'tt»f or (aM ihf mnv ma\ Im') to tlu' propilt'toi' aKiiiiiMt wIiok** titli' ♦•» Mtato or iiit«>r<*Mt mikIi ravftit Inm Imtii lodK*'efor»' llu HiipniiH' t'onrt or a .Iun under the former. Where a caveat Ih lod}(ed ,at(HinHt bringiuK land uuder the Act, Sec. 24 provldeM that " after tlie expiration of one month from the receipt thereof mucIi caveat shall be deemed to have la}me<| uuIchm the p(>rM«»n by wlumi or on whoHe behalf the name waH lodged Rhall," among other thingM, "have obtained and Merved an injunction or order of the Hupreme Court or a Judge reMtraining liim from bringing the land under tliiw Act." Therefore, if it were a caveat agaiuMt bringing land under the Act» the only injunction to reHtrain the Registrar of Titleg would be the order of the Supreme Court or a Judge. In caseg under Hec. 110 there Ih no mention of an in- junction against the KegiHtrar of Titles, but there ih a provlHion for having tlie caveat removed, and there the application must also l»e to tlie Supreme Court or to a Midge. I do not think, therefore, that it was the inten- tion of this Act that tlie County Court Mhould have juris- diction to deal with matters arising out of any caveat» under this Act ; but I do not desire to decide that authoritatively. Even if the County Court has jurisdiction, the ques- tion of costs is entirely in the discretion of the Court, and I should not be [*97] disposed in a ease arising out of a caveat under this Act to limit the costs to County Vv^ 444 TORRENS CASKS. Court co8t8. I will make no order as to Cwmty Court costs in this case ; tlie order I have already made will stand, and this application will be refused with costs. Solicitor for plaintiff : — O. Skinner. Solicitor for defendant :—HoruUl. Supreme Court, Victoria, 1869.] [6 W. W. & a'B. (L.),233. In re woods AND THE " TRANSFER OF LAND STATUTE." A conveyance of real estate purported to bo executed under a powor of attorney previously registered. Held, that in order to shew a good title evidence must be given that the principal was alive at the date uf the registration of the power. Summons calling on the Registrar of Titles to 8ul>- stantiate and uphold the grounds of his direction not to register, under the " Transfer of Land Statute," the land the subject of the application. The objection taken by the registrar to registering the land is stated in the following case : — "1. On the 18th April, 1860, Daniel Owen was the mortgagee in fee of Crown allotment 10 of Sec. 7, town of Warrnambool. 2. On the 3rd September, 1862, a letonveyance of such allotment was purported to be executed by him by liis attorney John Davies, consti- tuted by a power of attorney not given for valuable con- sideration, dated the 23rd of May, 1860, and filed on the 1st September, 1862. 3. Application has been made to bring the allotment under the operation of the "Trans- fer of Land Statute," and evidence has been required that Daniel Owen was alive on the Ist of September, 1862, but compliance with such requisition is refused. 4. Di- rection has been given not to register the land, and in compliance with a requisition in this behalf, and pur- suant to the 135th section of the said statute, the fol- lowing is stated as the ground upon which such direc- tion was given : — That evidence is requisite to show that Daniel Owen's power of attorney continued and L^„ •.-■'..;rformiinc(> of the aKr<'emcnt, or £2,0(M) damnfccH/' That meanM, either Hpeclflc perforninnce or dainaKcH. The whole of the evidence has been directed to daniagei, because the de- fendant did not K^t his lease a» soon an he ought to. But It appears that, after action brought, this 1(mih<' was perfected and registered. Therefore, as to tlie counter-claim, it is one of those cases in which all that tlie defendant has claimed has been done before judgment. The defendant is entitled to his costs of .ae counter- claim, but there is no room for damages. If the plain- tiffs had tendered costs up to the date that the lease was registered, he would have been entitled to his subse- quent costs. From this decision the defendant appealed to the Pull Court [Coram Higinbotham, Q.C., a'Beckett and Hood, JJ.]. Higgiiis for the appellant : — The defendant was al- wa.vH perfectly willing to pay rent for the premises, if he were allowed a reasonable sum for not getting the sublease registered in time, because, owing to the plain- tiffs' inability [•708] to get their landlord's consent in writing, the defendant was unable to sub-let a portion of the premises which, as the plaintiffs were aware, he always intended to do. [Hood, J. — Is it claimed in the pleadings?] It is submitted that it is claimed in the alternative claim for damages in the counter-claim. The person mak- ing alternative claims is entitled to rely on either one or the other, and the defendant here elected to rely on the claim for damages. Both parties gave evidence as to the damage suffered by the defendant through being unable to sub-let a portion of his premises. The plain- tiffs are entitled to succeed in this action, because, at the time the writ in the action was Issued, the sub-lease was not registered. If the amended reply is admissible as a pleading at all, it is only a reply to the counter- MUSBO I. ADAMS. 45S rlaim, and dot>t not iiiukf their poMition nt the trinl of the uctioii any better, for th(> ({ueiitiou iw, what, at the time of tlie imiue of the writ, wan the position between the parties ? [HiKinbothani, (\J. — At the time the. writ waM isMut'd there was a leaHe executed l).v the parties containinK a covenant to pay rent. What waH tliere to prevent the pIuintiifH Huin^ on the covenant ?] It Ih not a deed, and is not to he deemed as of tiie Hame eflrt<'ac.v as if under seal until it is registered. There is therefore no covenant until it is registered. I'nder the old law a lease for more than three years is of no avail unlesi^ it is under seal. Under the "Transfer of Land Statute ' it is of no avail until it is registered : Hecs. iVA, *.V2 and WU of the " Transfer of Land Act, 1890 " (No. 114J»). Tlie iHse of Trewhella v. Willlson,* to which reference will probably be made, does not affect the matter. All that was held in that case was that the Legislature, by the "Transfer of Land Statute," had provided that a deed not duly acknowledged by a mar- ried woman should not have effect as a conveyance — but that it was not provided by the Act that it should not have effect as a deed, and therefore the married womau could be sued on the covenant therein contained. He/e there was no deed. As to the claim for use and occupa- tion, the defendant entered into possession of the pre- mises by the permission of the plaintiffs on an agree- ment for a lease, and the plaintiffs [*709] cannot sue for use and occupation on an agreement for a lease. Their remedy is to compel their landlord to give his consent, issue, and have registered a sub-lease as from the original date, and then sue the defendant for the rent if he does not pay. Where the occupation is refer- able to a particular agreement the inference necessary for a claim for use and occupation that the occupant l^omised to pay a fair rent cannot be drawn. In any case the defendant only used, and only Intended to use a portion of the premises, and on the claim for use and ' 14 V. L. R. (L.) 122. w V- il 4Sli TOtm/i.\M VASKS, plaliitltTM Mhoiild only r«M'OV(*r iih for (hut purtion. Tli(> <d that it would he e«|iiltable to ^raiit the relii>f uHked hy the plaliititTH only on tlu'lr paying the deft'iidant dainaKeH for IiIm inability to let the portion of the prt'OilHeH whifli hi> did not iiMe. It waM ni'ver eontendiMl at the trial that the defendant waM not entitled to Honie diinuiKeH for the delay ; the only (;ontention waH hh to the amount. [lllKlnhotham, <<.J. — AHMumln|< that you have hum* tained Home damajje, we hav«* no evidentte from wliicii w«' ran extimate the amount.] The r(>nt Im shown, and the proportion of the pre mlHf'H (M'cupied by the defendant hIiowu. [Hood, .1. — Voii aKMUin<> that a pernon would glvo ouehalf the rent for one-half the premiwes.] Am to the claim for U8e and oorupution : — [Top|>— See. 22 of the Landlord and Tenant Act, 1890 (No. 1108)]. The Hi'oond part of the Hection Ih ah addition to tlie first, and provides merely that if there be tin informal deal or an ajrreement, not by deed, it may be used an evidi'iiee of the quantum of damages to be recovered for use and occupation. Where, however, there is pro- duced at the trial a deed or registered instrument, which shows a lease of the premises covering the same term, and betwMM'n the same parties, there can be no remedy for use and occupation, for it is merged in the deed or registered instrument. [•710] Fink and Topp, for the plaintiffs, respondents:— The evidence shows that the defendant went into pos- session not under the deed, but under a letter put in evidence, which amounted to an agreement for a lease. Besides, the lease itself, until registered, amounts only to an agreement for a lease. (They were stopped by the Court.) ur.yRfi I. A PA, U.S. 457 lliKlnhotliain, CJ., dcltvoriMi tli** Jniltrnn'iit of ttio Uoiirt [Ilitrinhotliiiiii, r..l., u'ltiTki'lt uiul I1oiil Iiiim not Imm'ii HUNtaiiictI, uii«l that It IIIIIHt )»«> lliMMllHMIMl with COMtH. Th«> pliiliitltT Im cii- til It'll to hoNl t\u* iiid^iiKMit; on liU Htatt'UHMit of rlaiiii In r(>i(|N'ot of UMo and (M>«>npation. TliiTt* U olour ovi- diMii't' that thi> dcfcndiMii cnti't'cd and \\mh\ th(*H(> pr«>' nilwH for u lonK pi'riovi ht'fon* tlu» Iimiho wan *'X- 4>('Ut('d, and iiIho hi>f(»r<' tht> I(>aMi> waH coiu|d«>tod and n»j<'«t»M'»Ml und«'r tlu' " TninHfor of Land Art." Tin* loaMc wa» I'xrnitt'd b.v tlu' parth'M iM-fon* tin* artlon. It waH foinpl*»t«*d and iTj^lwtt'nMl afti'i* artlon and hrfniv trial. Tlir only diltlnilt.v that |>ri'Hi'ntK Itmdf In tho plaintifT'H way arUi'M from t\\v trrnm of tlw L'l'nd iMMtlon of tlu' Landlord and Tt'nant Htatutr, by which It In pro- vided that If at tli(> trial of an action for um* and occupa- tion a pared dtMulMc, or any agr«M>nuMit mot hoinK hy maln In possession under a contract for the lale of the land to him, the defendant became at law tenant at will to his vendor, and he could not be ejected by his landlord without a previous d«'- mand of possession. He had at the same time an equity which would not allow his vendor to deterniine the tenancy at will except by converting it into an estate in fee simple. It is impossible in such a case to dissever the tenancy and the contract from one another. They together constitute, we think, an Interest to which the land was subject, and which is entitled to prevail against the claim of the new proprietor under his certlttcate of title. It was further argued for the plaintiffs that then' had been such negligence or laches on the part of the de- fendant as should deprive him of his right under the statute. The learned Judge who tried the case must be taken to have found that there was no such negligence or laches, and we concur in that opinion, particularly as [•332] the plaintiff society laid itself open by its cow- duct to the same charge. At the same time we must not be understood in expressing this opinion to recog- nise it to be a principle of law that mere negligence could deprive a tenant of his statutory rights under Sec. " IV. R. (Eq.) 11; Moleawortb, J., at p. 14. "2V. L. R, vEq.)l!)7. »6V. L. R. (L.)462. 470 TORRES ti CASrff. 49 of tlH' "TrnnnfiT of Land Rtntnto." Tlw appoiil will In> (liMinlNHcd with COMtM. App<>al dUinlM<>d with CMtH. Holioitori for tha pUintifTi:— Crftbb«, Cohen A KIrby. Holiclto-* for (lofen(Unt : -Connelly A Tatchell. HuruEME CouHT, VicroiuA. 1H8«.] [12 V. L. R. 506. In the MArrER of the "TRANSFER OF LAND STATUTE." Ex pakte VINCENT. " Trnnnffir of l.und Stutttte, mc. 117 — StmnnmM to ri-mov^ cftnot. On appllofttion under Heo. 117 of tlie '• Transfer of Land Htalute," by the reKiittertd proprietor of land, to hav« a caveat removed, the ('ourt will not order aucli caveat to be removed upon ■nob application wliere there ia a coitfliot of teatimony, hut may onh-r tlint anon caveat ahHll t« removed unleaa atepa are taken tu eatabliah cav«ator'a title within a certain time. KninitkonH under the " TrnnHfer of Land Stntiito" (No. ;U)1) to Hhow ruuHC why a caveat Hhouhl not be removed from the Register of Titles. Forlonge, for the caveator : — This is an application to tiie Court to have a caveat removed : but it is sub initted tliat Sec. 117 does not authorise the Court, upon a Hummons, to deal with the merits of a case involving a conflict of testimony. It is merely a cheap way to get rid of the caveat. The proprietor has not dealt with the land. Neighbour, for the registered proprietor : — Sec. 117 docH not require that there should be any dealing with the land ; it merely [•507] directs a summons to be taken out; upon the hearing of that summons the Court may make out such order as it thinks fit. [Holroyd, J. — Can we in a summary way direct that the caveat be removed where there is a conflict of testimony between the par- ties ? There ought not to be any doubt as to your right or title before such an order is made. Where you have actually dealt with the land it is different, for there the caveator must prove his case. If you were to apply fc'A lUHiK ytscksr. 471 niovf ear f (It, for the lMMti(> of u n'KiHtrution iiltMtruct, tiiut would force tho caveutor to provr IiIh title witliiu (oiirl«*<'ii dayM, or have the caveat struck out.] The C'ourt may make any order it tliinkH At, and may dirtMt that the caveator Mhould prot'ecd to cMtabMNh hU titU' within u certaio time. ForlonKo : — I have no objection to uuch an order beiuK made. Per Curiam.* It \n orderere(l iiru|irictor :— I'ynmii. Kolicitor for caveator :— Kidaton, Victoria, 1891.— VVEmj, J.] [17 V. L. K. 203. RICHARDS V. CADMAN. " Tnimferuf Land Art, IHUO" {No. 1140), i>ec». lU, 56 and hW— Judijment debtor — /•'». fa. — Lodifftnentfor rnjiHtrdtion — K»tnte or intereitt of debtor not npftearintj in rt(ji»tt'r hook — lietfntion of fi. fii. in litles Office — MorUiaije — Lease Jrom Crown — •' Heifintfr hook " — Prioritij of reifiatration. A copy tl. fa. and Htatement specifyinK the laud, leaao, mortK^fte, or oharte other defendants from proceeding to register, a mortgage as an incumbrance to a certain Crown leaae of land, except subject to a writ of fl. fa.; for a declaration that the fi. fa. was entitled to priority over the mortgage, and an order that the regis trar register it in priority thereto. The action was brought by Catherine Richards against Walter Cadman, Elspeth Affleck Downie, and H. C. A. Harrison, Registrar of Titles, and the state- ment of claim alleged : — 1. Prior to and dunng the early part of the year 1890, the defendant, Walter Cadman, was the licensee from the Crown of certain land in the parish of Tatonga. 2. In April, 1890, an action was tried in the Su- preme Court, in which the plaintiff was plaintiff and th(? defendant, Walter Cadman, was defendant, by Hood, J., and on the 17th April, 1890, [*204] judgment was directed to be entered for the plaintiff for £115 17s. 9d., with coats to be taxed ; execution to be stayed for three months from that date. 3. The judgment was duly entered on the 9th May, 1890, for £278 16s. 6d., the amount recovered and taxed costs. 4. A writ of fi. fa. was issued on the judgment on 18th August, 1890, and was on the same day lodged with the sheriff of the northern bailiwick for execution, but the writ was never satisfied in whole or in part. 5. On the 22nd August, 1890, the defendant, Walter Cadman, applied for a lease from the Crown of the said land, of which he was the licensee as aforesaid, and the said application having been approved on the 28th Oc- tober, 1890, the lease was executed by the Governor, IllCIIARDS V. CADMAS. 473 and on the 2nd December, 1890, the lease was exoputed by the defendant, Walter Cadman, as lessee. G. The lease, though executed on that day, was dated 1st March, 1890, and was for the term of fourteen years from that date, and the land comprised in the said lease had not been previously alienated from the Crown. 7. Previously to the execution of the lease by the Governor or the said Walter Cadman, namely, on 11th March, 1890, Walter Cadman had executed a memoran- dum of mortgage over the land purporting to be under the provisions of the "Transfer of Land Statute" (Xo. 301), to the defendant, Elspeth Affleck Downie (the date appearing on the mortgage being the 11th March, 1890), and the defendants, Walter Cadman and Elspeth Affl;'(!k Downie, at the time of executing the mortgage well knew that the plaintiff herein had commenced the said action against the defendant, Walter Cadman. 8. On the 11th December, 1890, a copy of the said writ of fl. fa., together with a statement under Sec. IIV.) of the " Transfer of Land Act, 1890," specifying the said land and the said leasehold estate therein as the land and estate sought to be affected by the said writ, was lodged at the Office of Titles for registration at 11.37 a.m., and remained in the said office during that day. 9. On the 11th December, 1890, at 12.30 p.m.. the lease was lodged for registration, and was entered in the Register Book, Vol. 608, Fol. 121517, and on the same day, at 1,47 p.m., the mortgage was lodged for registra- tion by the defendant, Elspeth Affieck Downie, through her solicitor, John Wilkinson, the said solicitor and Els- peth Affleck Downie well knowing that the plaintiff had obtained the judgment and issued the writ of fi. fa. thereon. 10. The defendant, H. C. A. Harrison, is sued aa Begistrar of Titles, and as such registrar will, if not re- strained by this Honourable Court, proceed to r?g;step the mortgage as an incumbrance on the lease in priority, and not subject to the said writ of fl. fa. •; j'K ^1 * '•< I ) f. i.4» m\ ^ 474 T0RREN8 CASES. 11. The plaintiff will contend that by virtue of the provisions of See. 19 of the " Transfer of Land Statute, 1890," she is entitled to have the said writ «»f ft. fa. re- (fistered as an incumbrance on the lease in priority to the mortgage. The Registrar of Titles did not enter an appearance. The defendants, Cadman and Downie, jointly defended and admitted paragraphs 1, 2, 3, 4, 5 and 6 of the state- ment of claim. They denied that Downie knew of the action being commenced, or that the plaintiff had ob- tained judgment and issued the writ of fi. fa,, though they admitted that Cadman did know. They would con- tend thait at the time [•205] the copy writ ft. fa. was lodged there was no estate registered in the Titles Oflfice against which it could be registered. Cussen for the plaintiff. [Webb, J. — Do you rely on the allegations of notice?] No ; I do not think I can. [Webb, J.— I do not see how it could affect the case.] No ; I rely on Sec. 19 of the " Transfer of Land Act, 1890 " (No. 1149), which provides that registration of grants in fee or for years from the Crown shall be deemed and taken to be an enrolment of record of the grant, and such enrolment shall relate back to the day of the date of the grant. So that it must be deemed that there was, at the time of the lodgement of the fi. fa. something against which the fi. fa. could be registered. And it is only by virtue of such relation back that Cadman could execute a mortgage to Downie, or describe himself there- in as the "registered proprietor." [Webb, J. — ^If we are to be very technical, I do not see how this Sec. 19 would apply at all. It relates only to grants of land remaining unalienated at the time of the commencement of the Act. In this case, if the en- rolment related back to the date of the grant, it did not remain unalienated at the time of the passing of this Act.] That is the effect of the consolidation of the Act. It means, and according to the Interpretation Act must ♦f RICHARDS V. C ALU AS. 476 be tak'^L to mean, the commencement of the Act ISo. 301, from which this Act is taken ; or, at all events, Act No. 301 must be taken as still existent. Besides, Bee. 17 of the " Land Act, 1890 " (No. 1106), would provide for this ease. The difficulty about there being nothing against which to register a fl. fa. was dealt with by your Honor in Sander v. Twigg,* where your Honor held that a liberal construction ought to be given to Sec. 106 of the Act No. 301 (Sec. 139 of the present Act). In that caise the interest against which it was said that the fl. fa. should have been registered was incapable of being registered, and your Honor still thought that the fl. fa. should have been received. Some doubt was expressed by Higinbotham, C.J., [•206] and Holroyd, J., as to that, and your Honor again considered and decided the point in Watson v. Royal Permanent Building Society,^ but that case differed from the present in this respect, that there the fl. fa. was not in the office — ^it had been re- turned because there was nothing to register it against. In this case the fl. fa. was still in the office when the lease was registered. In that case, too, the difficulty arose from adopting a form of security not recognised by the Act. In this case the Act makes the registration of the lease compulsory. [Webb, J. — How is the registrar to keep in his mind everything lodged, for it may be six months before ? The register itself is merely a bundle of grants or cer- tificates.] It is submitted that the register shall not consist merely of a number of grants bound up, as provided by Sec. 55 of the " Transfer of Land Act, 1890." Any prac- tical difficulty as to registering a fl. fa. against a lease- hold interest could be got over by registering against the niame of the lessee, which, of course, is the name in which the lease will eventually be issued, and when the lea«e comes into the office the registrar will at once see ' IS V. L. R. 765. "4 V. L. R. 283. 476 TOR REN 8 0A8E8. that there is a fl. fa. against it. The lease, and the regis- tration of the lease, in the eye of the law, are dated thf? Ist March, 1890, and the fl. fa. issued after that date oufjht to affect them. Box (with him Wiegall) for the defendants Gadnian and Downie : — Handing the fl. fa. over the counter at the Titles Office is not a lodgement ; it is not lodged until it is accepted or refused, and then dates back, to the time of handing it over the counter. [Webb, J. — The defence uses the term " lodged " in the same sense as the plaintiff uses it, not in the sense in which you contend it should be used.] It is submitted that the first document presenterietorH (»f the land. On 13th Heptcinbcr, 1S8H, by ('ontract in writing nuido between th«» plainlitt'rt Archibald MathicBon and (Icwpe Martley Davis (carrying on buMinoHM aH Mathi<>Hon & Davis), and John Napper, and the defendants Cornelius Job Ham lujd TheopliiluH Job Hani (carrying on business as C. J. & T. Ham) for the defendants the Mercantile Finance (Company, the defendant company, as mortgagees of the land, sold to the plaintiffs the said land, subject to certain leases in the contract mentioned, for £4,G0U, upon the terms and conditions therein mentioned, in accord- ance with which the plaintifiFs paid a deposit of £1,150 to C. J. & T. Hjun, and gave their. promissory notes for tlie residue in equal amounts, at six, twelve, and eigh- teen months, with interest at the rate of six per cent, per annum, upon the express instructions and terms, verbally stated and assented to, that C. J. & T. Ham should not part with them until the title was accepte, the plaintiffH wrote stating that, in view of the long delay that had taken plac*', they recjuegted that the de- poHit and promissory notes should be returned. This was not done, but on 2.')th June, 1889, the comi)any wrote to say that, without admitting the i»laintiffs' jjosi- tion to be gmnl, tlw*y had fresh demands and notiti'S nuulc and served upon the present registered proprie- tors and Patterson, in terms of registered mortgage, and that such demands and notices were not eomplifd with, so that the mortgagees were now unquestionably en- titled to insist upon the plaintiffs carrying out their purchase. This the plaintiffs declined to do, and brouglit the present action for a return of the deposit and pro- missory notes, or an indemnity against those negotiated, molving C. 3. & T. Hnm parties, as they had >vTongfully handed them over to the defendant «'ompany. The mort- gage was in the following form : — **T, Edward Alfred Patterson, of, etc., being regis- tered as the propHetor of an estate in fee simple in land hereinafter described subject to the encumbrances notl- lled hereunder, do hereby covenant with the Federal IJa.ik of Australia, Limited (hereinafter designated the said bank). " F'irstly — To pay to the said bank or its transferees on demand in writing under the seal of the said bank, or signed in the name of and on behalf of the said bank, by the general manager for the time being of tlie said bank, or by any other otticer or agent of the said bank authorised to make sucli demand on it^ behalf, or by the transferees of the said bank, and given to me, my heirs, executors, administrators or transferees personally, or left on the said land, or s;'nt through the post office by a registered letter, directed to me or to the then proprietor of the said land at my or his address appearing in the register book, the balance which shall for the time being be owing by me, [*274] my executors H.T0R.CA8,— 31 , 4«2 ToiinKys cAnics. or M(liiiinlt4tiatorM, to tUa naUl biinU on my actoiint cur- ivnt with the nald bank, and all ami »'V«t.v «>ther the muiuk and Huni of money (If any) which the nald bank or ItK transfereen may (biit wltliout any obligation on It or them to do HO) advance or pay, or become liable to pa>, to or on account of me, etc. " Hecondly, etc. "Thirdly — That In case default hIuiII be uuuh? by me, my helrn. executorn, admlnlstratorn or tranyferecH as aforesaid, in payment of any of the moneys expresHed or intended to be hereby seciired, or any part thereof re- Hpectlvely, or In the obwervance of any of the covenants contained or Implied herein, and any such default be continued for the «pace of three day«, then and In any such case all and Hin^'ular the moneys intended to be secured by this mortjia^e shall forthwith and immedi- ately l)ecome due, payable and recoverable, and it shall be lawful for the said bank or its transferees to serve on me, my heirs, executors, administrators or transferees, the notice mentioned in the 84th section of the " Trans- fer of Land Statute," and that after such default in payment continuing for the further space of three days after the service of such notice, it shall be lawful for the said bank or its transferees to exercise the power of sale and all others the powers and authorities mentioned and ^iven in and by the 85th section of the said statute. " Fourthly, etc. "Fifthly, etc. " Sixthly, etc. " Seventhly, etc. "And for better securing the payment in manner aforesaid of the said principal sum and .'-^terest and other the moneys for the time being hereby secured, and the observance and performance of the covenants afore- said, I hereby mortgage to the said bank all my estate and interest, and all the estate or interest which I am entitled or able to transfer or dispose of in all that piece of land being allotment 2, seetiom 4, Parish of Sale, County of Tanjil." MATHtKSON I. MERCANTlLt:, FINANCH d. AOENCY CO. 4H:J HiKffiuH and iMaacn fur tlu' plaintifTH: — Th«' demand and notioi' bolnj? made before regiMtratlon of the mort- gatfe were of no effect. Until regiHtration, the mortgage wan of no effect ; the provifiionH of the Act did not apply to it : Sees. 42 an«l 84 of the " Transfer of Land Statute " (No. HOI). The vendorrt t-an only make title umh'r I he Act, and unlesH the provlsionH of the Act have be«*u coiu- pllod with, cannot paHtt title to the plaintiffs. Topp and Mltt'hell for the defendantn : — He«\ 42 do»'H not provide that a mortgage Ir to have no effect until registered, but merely that It shall not render the land liable to the mortgage. We do not dispute that the Inud Is not mortgaged until registration of the InstrunnMit, but we submit that as between the i)artles to It the in sirument Is binding, and the covenants In It are blmllng. Clause n amounts to an agreement that what has been done here might be done, and It Is submitted that the parties were bound by It. [•275] It Is submitted In this ca8>> that the demand and notice could be given prior to registration of the mortgage, although the sale could not take place till after registration. The time when notice Is to be given Is the date of payment. If the plaintiff's contention were correct, If that day has passed before the mortgage has been registered, the money ad- vanced could never be recovered. [Webb, J. — If the third clause of tlie mortgage en- ables you to give notice before registration, why does It not enable you to sell before registration?] The Act expressly provides that no estate or Interest in land under the Act shall be passed by any instrument until its registration, but there is no provision that a mere preliminary act such as giving a notice shall not take place before registration. It is also submitted that when registration took place in this case it related back to the date of default, otherwise there would never bo any default after registration, for the mortgage fixes the time at which payment is to be made. In any case, a fresh demand and notice was given after registration. [Webb, J. — It was after the sale.] .1 -.1 4h4 ruitMtSi t'yI.VAA. Vt'K ; Imii lit iIh* |>liiliill(Ts' n'(|ii 'Mt, IIIjf^liiH la reply :— I'luhr the Art thv lr;,'al cHtat.' U iH'Vt'i' III iIh' iiiuiljiam'c. aiHl tln' oiil.v iiu-aiis of paMHiij^; il to tlM> puicliaHrr Ik uiultT tlu' Art. If tlu' Act Iuih not Im'i'ii <(Hiipll«Ml wllli, the plaliitin\« would l»«! Ilaldc to I'iitt«'i'HoirH tniwtiM'K III iiiHolvi'iiry. Tli«' only d»'f.mlt wlilcli jilvt'H a power of Hal«» iiiid>*r the Aet U ft def;iiilt III payiiieiil of money " Keeiired " liy a re^lMtered nioit- pi;;«' iS«>e. Sli. It \h fiiiMlier Hiibiiillted that the oovi'uant to pay in the iiiortp;iip> wax not liindhiK tintH re(;iMfm- tlon i.f the iiioitp:aK«'. niid that, therefore, there was no jlefaiilt in payment. Ctir. ndv. vnlt. Webb, J.— The only jiolnt arlHinn for declHion in this caHe Ih whethiM- a iiiortKa^ee under a niorlpiKo of land under the "Transfer of Land Statute," the nil a valid sile under Sec. S." can be made Itased iipcui the prior noiice to pay. Lookiiijir at the various sections of the Act, T am of opinion that before any steps towards a sale can be taken the niortp:age must be registered. The various sections follow iu sequence, and hang one upon another. Sec. 42 provides that no instniment until registered in manner tlierein provided shall be eflfectual to render any land under the oi)eration of the Act liable to any mort- gage, but upon such registration the land sliall become liable. Sec. Hi ])rovide8 that a mortgage under the Act shall, wlien registered, have etfect as a security. Thi '- fore, until registered, it is not a security, and the i is not '* secured " on the laud. The section thei o- ceeds : " In case default be made in payment oi i he laincipal sum ' secured,' and such default be continued, etc., the mortgagee may serve on the mo tgagor a notice in writing to pay," etc. But no default can b» made in l)ayment of the sum '* secured " until it is secured, and it H.tTHtKSnX 1. Mh'Ri .lyriLt!, t'ISASCK A AfiKA'OY CO, 4H5 in nut H»'(iii«'«l until ii'^'iHtnitlou of tin- inortptjjf. Tlu'ii t^iM'. s,' pruvldrM tliiit If HiK-h tlrfaiilt in |iiiviii<'tit of tin- "huui MiMUicd " rontlniif foi- tlu' p!«'H( rlln-il tinii* aftrr tlu' Ht'i'vlri' of Hucli nutlet' tlh' nioitKiiK'' Mwy k«'II. Tht'ri'furu tfu' jmiwit of hjiU* only arUi'H oti «l«'fault la iNivnicnt afti'i- mTvicc of a nolh-)' niwlt'i' lln* Act, wlilrli notice ••an only he rtTfciually Kfiviil afti'i- rc^'lMtratloa of tlif niui'l;;:ip', anti no I't'^'lslrat ion of it aflrr hw- vicf (if tlu' notice Init lM*fon> nalc will validate tin* ani«'- cedent notice, or render a Muhseqnent Hah* ^ood. Ilet-e, after tlu* sale ln.(iueHtlon, a ft'enh notice wuh served, and It Ih at«ned that kucIi notice bein^ valid nnder tli«> Act rend'icd the prior nale elVrctnal. Itnt ^uch notice only raised the power of wale, and enabled it to be validly exeiciHed. It <-oiild not ex post facto validate a sale previotiHly invalid. It hu» been ar);ned for the defen- dants that thiM mortKa;;e, althon^'h not authorising' a Hale un(Jer the Act. was jjcmmI outside the Act as between the |»artles to it, and as between them authorised a sale. Such it principle has been held to apply to unregistered bills (»f sale as in Tidytnan v. ('ollins,' and if this were an action tipon the covenant In the niort>;ane, I nii);ht be pressed with the ar;riiinent. Tint here the mortjj:ay;ee, vendors, can only take title under the Act, and, unless tile provisions of tlie Act are complied with, [•-77] can j,'ive no title whatever to the |>urchasers. Sec. S7, which Is the only sectitui under which title can be made, pro- vides that upon the rej^istration of any transfer sijrned by a mortjjtipee, *' for the purpose of such sale as afore- said," the estate and Interest of tlie mortgajror shall pass to and vest in the purchaser freed and dischaip'd from ull liability on account of such mortjratre. But "such sale as aforesaid " Is a sale after a valid notice un«ler ^'C. 84, and here there was no such valid notice. The defendant company is therefore unable to give a jfood title, and the plaintiffs are entitled to a rettirn of the money paid by them both as deposit and In payment of such of i " bills as have fallen due, and a return of the bill unpaid, or an indemnity, if such bill is in the hands '4 V. L. II. (L.) 178. 48(J TORRENS CASES. of an iniioct'iit holder for value. It has been admitted at the bar that the defendants Ham improperly parted with the deposit and bills, and that the plaintiffs, if en- titled to relief against the defendant company, are also entitled to the same relief against them. Judgment for the plaintiffs for £3,553 lOs. and eosts. Order the defendants within seven days to deliver up to the j)laintiff8 for cancellation the promissory notes still current and unpaid, or otherwise to indemnify the ])laintiffs against the payment thereof, such indemnity, if the parties differ, to be settled in Chambers. From this decision the defendants appealed to the Full Court (Higinbotham, C.J., a'Beckett and Hodgf^s, JJ.). Topp and Mitchell for the appellants : — We quite admit that, under the " Transfer of Land Act," the land is not charged with the mortgage until it is registered, but we submit that the deed executed is still a security between the parties. This Act expressly provides that you shall not pass any estate or interest in the land until the instrument conveying such estate or interest is registered^ but it does not provide that you may not execute a mort- gage containing covenants binding on the parties before registration. It does not expressly prohibit the notifica- tion before registration of intention to sell on default, and the learned primary Judge does not find that that is so, but he concludes from ihe collocation of the sec- tions that it is impliedly prohibited. Ii is submitted that there is nothing in the public policy to induce tlie Court, in the absence of an express prohibition, to strain the Act in order to imply one. As between mort- gagor and mortgagee [•278] it might be agreed that the statutory notice should be dispensed with altogether, and the Office of Titles will still register the mortgage: a'Beckett's Transfer of Land Statute (2nd Ed.), p. 136, note e.; p. 138, note f. In the analogous case of bills of sale, "The Instruments and Securities Statute, 1864" (No. 204), provides that they should be registered, and MA THIESON v. MERCANTILE, FINANCE fault in ptTforntancc or obHcrvance of any covenant cxpreHH or implied ; and witli regard to tlie latter <'Iaf»H of default there are nt) wordH which can b«» Haid to malve repfiHt ration of the mort|i;a);e a neces- sary pre'liminary. As repirds botli classic of default, as between mortpijjor and mortnap'e, the breach of duty and consequent injury to the mortKagee are the same whether the mort^ajfe be registered or unregis- tered, and botli sliould jrlve the mcxrtpijjee tJie same remedy. The A(^t nowhere requires Immediate re- ^{istration of instrum(>nts executed under its provisions, and it seems unreasonable that failure to pay money due should count for nothing up to the tinu? of regis- tration. The use of the word "secured" in describing the sum as to which default arises seems to me insuffi- cient to bring about this unreasonable result. The mort- gage money is in a sense secured from the time the mort- gage is signed, though the complete security over the land iH not acquired until after the mortgage is regis- tered, and when the mortgage is registered it operates as from its date, so that the debt is retrospectively se- cured over the land as from the date of the mortgage. When no rights of third persons have intervened the registered instrument operating under Sec. 61 as a deed determines the rights of the parties as from its date, not as from the date of its registration. No rights of third persons have arisen in the case before us. The objec- tion to the exercise of the power of sale rests altogether upon the alleged insufficiency of the default on which its exercise depends as having occurred before registra- tion of the mortgage. I therefore think that the appeal should be allowed. Hodges, J. — I concur. Solicitors for plaintiffs :— Madden & Bntler. Solicitors for all defendants :— Fink, Best A P. D. Phillips, I'LUMPTON V, PLUAtPTOH. 405 *^1 I ViCTOIlIA, 1886.— MoLEHWOUTII, J.] [11 V. L R.733. PLUMFTON V. PLUMPTCJN. " TrunKfer of Lnrtil Stntutr" {Xo. :iOl), see. 4'i—CertilH'itU- of title — yoluutiiri/ tmnsjer — Defmsil hy ivmj uf nfcurity '-' llfiji$tmtiitn. A person depositing aa a security a certificate of title in tlio name of a third party, Kives to the depositee only such ri^ht an the dei>oHitor has against the registered proprietor. A certificate of title of land under the " Transfer of Land Statute " (No. iiOl), and a transfer by the reuistered proprietor to A. for a nominal consideration, were lodged by A. with a bank as security for an overdraft without the bank having notice of any claim to the land by any person other than A. The transfer wan not registered. Held, that the bank was not entitled to hold the land as a security as against the registered proprietor. Semble, the bank would liave been protected if the transfer had been registered under the " Transfer of Land Utatute " (No. BOl). Bemble, oases as to allowing title deeds to be in the hands of an owner instead of an encumbrancer and thereby enabling the owner to conceal the fact of an encumbrance, are not applicable to the custody of certificates of title. Action for tlie delivery up of a certificate of title and a transfer of certain land iinder the "Transfer of Land Statute" (No. 801), on payment by the plaintiff to the defendants of £20 ; and for an injunction to restrain tJie registration of the transfer. The plaintiff was the registered proprietor under the "Transfer of Land Statute" (No. .301), of a piece of land at Carlton. In August, 1S84, he deposited the «!ertiflcate of title thereof with the defendant Alfred I'lumpton, as the jdaintiiff alleged, as a set niit.v for a loan of £l!0. On the 23rd September, 1884, the plaintiff, being absent from Victoria, at the suggestion of the defendant Alfred Plumptou, executed for the alleged consideration of lOs., a transfer of the land to the defendant Charlotte Plump- ton, the wife of Alfred Plumptou. She deposited the certificate and transfer with the defendant the City of Melbourne Bank (Limited), as security for certain ad- vances made by it to her. The defendants, Mr. and Mrs. Plumpton, alleged that the land was given to Mrs. Plumpton, who was the plain- i P t m i i 4!)(i ToHHUSS CASUS, III tIff'H iil«MM« l).v iiiiinlji«t*, UH a voluntary «lft b.v tin* plain tiflf, hilt admit tt«l that on 5th AiinuKt, 1SH4, Mrs. Plump- ton (Ihl lend the plalntitT VH). The Wofcndant hank clalnu'd to hold th(> i**>rtill and transffi' aw wcnirlt.v for itn advanrt-M, and olTrnnl to d<'llv«'r tlH'm [*T'\\] np to tho poi-Hon cntlthMl thfit'to on hclii^' paid the amount of hiicIi advances, whh'h with in- tt'i'cHt amount(>d to £!H), and Its costs of thio action. HiKirlns, for tho plalntitT :— Tho action Ih for th • re- demption and de'lvery up of the cei'tltl»'ate of title upon payment of £iM>. The ti-ansfer of that certUlcate has not been I'ejiistei'ed undei* the "Tfansfer of Land Htatuie " (No. :501l, and the |)laintiff is still tin* re^jlstered owner of the land. If there was a voluntary ^jlft as alleged by the defendants the jjlft Ih Incomplete und«'r Sec. \'l of tho Act, and the ]»laintit1' Is entitled to restrain any deal- ing with the land by Mr. or Mrs. IMnmpton or by tho bank. Kven If the bank had no notice of th«' claim by the plaint ilf the ordinary principle of prior ocpiitieH pre- vails, and t!ie plaint Itt's equity is prior to thai -of the bank. Topp, for the defendants, Mr. and 3Irs. IMnmpton : — Mrs. IMumpton's case is that the plaintllf made a volun- tary j;ift to her. The cas;' made by the statement of claim is that of an ordinary redemption of a mortKa>?e to the defendant Mrs. Plunipton. The defendant Alfred Plumpton is an unnecessary party to such an action, as Mrs. Plumpton has separate estate. a'Heckett for the defendant, the City of Melbourne Rank (Limited) : — The bank bad no notice whatever of the plaintiflf's claim when it advanced the money, and should not therefcvre be^ lu'ld liable to him. The cases show that it is unnecessary that the depositor of title deeds should be the owner of the land comprised in them in order to secnre the person lending money upon them. Where a mortpi|?ee of leasehold property sent \\v lease to the mortgagor for the purpose of raising money npon it, but at the same time told him to inform the per- son from whom he was borrowing money upon it of his PLUMPTON V. VLUMI'TUN. 407 prior churK**, hihI tlic iiiortKiiKor borrowrd iiiom-.v from liiM bankeru upon \\\v wourlty of u iI«'|)o»lt of tin- Umiim' without KlvluK them notlc«' of the nioitKUge, It wan held that tin* iiiortKaKe muut be poMtpoiied to the banker'K Il»n: IJriKKH v. JoneH ;' and the Hanie principle wan ap- plied In Terry Uerrlrk v. .\ttw«)od.'' [•7.'i5] HIkkUih, In reply :— The plalntlflf's etpilty belnj; prior to that of the bank It doeH not matter whether the bank had notice of IiIm elalm or not, eMpeelally aw the bank eould see by the trannfer Itnelf that It waH volun- tary. In the eaHci* cited for the defendant bank, i\w borrower actually had the legal entate In the lnndn, but liere Mrs. IMumpton had not, as the traunfer to her wan not registered. [Moletjworth, A.C.J.— Hhe had the certUlcate of title and a transfer from the registered pniprletor, with a right of registering It. 1 think the bank was entitled to assume that the person who had a power at any mo- ment to register herself, had such an Interest that they might lend upon It. It would be carrying the provisions of the " Transfer of Land Statute " (No. :i01) very far If It were otherwise.] The bank lent the money on her apparent right to get the estate, and could have protected Itself under the Act by getting the transfer registered. It has been held with regard to a bill of sale that even as between the parties to It there Is no right at all until it Is registered, and the provisions of the "Transfer of Land Statute" are just as express as to registration as the Bill of Sales Act. Cur. adv. vult. M0LE8W0RTH, A.C.J.— The plaintiff, Mr. Antliony IMumpton, is uncle of the defendant, Mr. Alfred Plumpton, wiiose wife Is the defendant Mrs. Charlotte Tlumpton. The plaintiff's » L. R. 10 Eq. 92. !>25Beav. 20fi. H.TOR.CA8.— 82 408 TOKltfiys CASKS, chlltliM'ii wcro with tho (l(>ffnilantH an a nuitlcr of roiii- pliiiiciit, not to Im' piiUl for, hut th<> treatment of them, paMl or expvcted, miKht be a motive for voluntary gift. Tlu' piaintifT Im an euKine driver In narrow rirciim- •tann>H ; he had a property in (*arlton, vaiiint land, worth altoiit i'2W), alHo Mcmie houses and land at HrunM- wicli; but hi> up[N'arH not to havt? Imhmi tut well off aH the def defen- duntM were uiuhIc teiie*h«rH, keepiuff a houite and McrvautH, and having each u H(>parate bankinK ace4>unt. [•T.'JUj The plaintitt'H version of the transaction b«' tween them is that before proeeedlnR to Hydney and thence to Itolivia, which he commenced 8th August, 1884, it was arranged between him and the male defendant that he should transfer his title under the Act No. 'Ml to the male defendant, to raise money and build on his iiccount, as a trustee for him ; also that he got from the male def(>ndant a loan of £20, and his certificate of title was lodged as a security for it with the male defendant. His case is as if all his dealing was with the male defen- occasion he spoke to plaintiff's solicitor about a contract for sale. At one time he distinctly pro- mised to return the deeds. The fact of the female de- fendant having deposited them in the bank as a security to it was not referred to. On the whole, after much doubt, I have come to the conclusion that both the defendants getting the transfer knew that it was not intended as a deed of gift to the female, and they were not warranted in claiming it as such. If it were a gift, plaintiff might defeat it by a sale to a purchaser ; if the security to the bank was binding, I would hold the other defendant bound to indemnify the plaintiff from it. J have had much doubt upon the subject. The bank makes the usual case : — " We got the docu- ments honestly ; there is money due to us, and we have a right to keep them." There was no writing. The fe- male defendant says nothing as to what occurred be- tween her and the manager ; so as to a person who PLUMPTON V. PLUMPTvS. 501 accompanied her. The manager is abnent. The transfer being as in consideration of ten sliillings would be under- stood to be voluntary, therefore liable to be defeated by a conveyance for value. If the manager had insisted upon the ti'ansfer being registewnJ. he would have got the protection of the Act (No. 301), Sees. 42 and 47, but not, I think, till then. In the meantime. I think the plaintiff by suit might restrain the transfer if it would operate as a fraud upon him. Deposits of certificates have been recognized so as to enable the holder to stop transferring by proprietors, inconsistent with his right, and as a badge of ownei-ship, entitling the holder to enforce transfers from all persons having no better equitable right. The proprietor sanc- tioning a transfer by delivering his certificate gives a title generally available, but we have never come to a system of treating properties as transferable by the manual delivery of a certificate as a symbol of owner- ship. A person holding a certificate as the female de- fendant, or depositing it as a security, gives only such right as she would have against the [*739] proprietor. Cases as to allowing title deeds to be in the hands of an owner, instead of an encumbrancer, and thereby enabl- ing the owner to conceal the fact of an encumbrance, such as Perry Hei-rick v. Attvood ^ and Briggs v, Jones,* to which I was referred by counsel for the bank, are not, I think, applicable to the custody of certificates of title. There is no reason to saj' that the plaintiff contemplated the male defendant raising money for building by de- positing the certificate in the bank. Tlie bank has put in a counterclaim stvking to en- force the security of the deposit for the debt of the female defendant and the costs of this suit, and part payment by sale, which I am not disposed to grant, as r think the claim of the female defendant against the plaintiff inequitable and to be set aside. The £20 was, I think, an unsecured loan. » 26 Beav. 288. * L. R. 10 Eq. 92. m\ ' 502 TORRENS CASES. I shall direct the plaintiff to pay it to either of the individual defendants or the bank, as his complaint offered to pay it, if the bank wishes to take it in part dis- charge of the fenmle defendant's debt to it. I shall re- strain the defendants from registering the instrument of transfer of 2:Jrd September, 1884, and order the defen- dant bank to hand over that transfer and the plaintiff's certificate of title to him. I shall leave the parties to abide their own costs of this action, without prejudice to the claim of the defendant bank to recover its costs of this action against the other defendants. Solicitors for plaintiff: — VauKliaii & Derliam. SolicitorB for defendant Flampton : — Abbott. Holioitors for defendant, the City of Melbourne Bank: — Malleson, England & Btewart. Supreme Court, Victoria, 1879.] [5 V. L. R. 59. In re the "TRANSFER OF LAND STATUTE," Ex PARTE ELLISON, Ex parte AMESS. " Land Act, 1869 " {Xo. 360), sec. 20, sub-sec. V. — Leastt of Croxnt Land — Condition not to assitjn without sanction uf Governor — 'Iransfer by sale under Ji. fa. A condition inserted in a Crown lease under the " Land Act, 1869" (No. 360), See. 20, Sub-sec. 6, that no assignment or transfer should have any validity w'latever, until sanctioned by the Governor in Council, does apply to an involuntary assignment, aa by a sale under a writ of fi. fa. Summons to the Registrar of Titles. The first summons called upon the Registrar of Titles to substantia t»» and uphold the grounds, given in pursu- ance of Sec. 135 of the "Transfer of Land Statute," of his refusal to register a certain writ of fl. fa. in an action in the Supreme Court against W. J. Scarlett, at the suit of John Ellison, which was served on the said registrar, accompanied by a statement, as required by Sec. 106 of the said Act, specifying a certain Crown lease as the lease sought to be affected hy such writ. On the 26th August, 1878, tlie writ of fi. fa. issued to levy £605 recovered in the action. Scarlett was then the lessee for a term of years, from the Crown, of the land EX PARTE ELLISON. 503 in question, under the provisions of Sec. 20, Sub.-sec V., of "Tlie Land Act, 1869." After due advertisements, tlie sheriff, on 18th October, sold by [•60] auction the defendant's interest in sucli h»nd to one Sam. Amess for £350, which was immediately paid, and a transfer of that date executed by the sheriff. On 29th November, a copy of the writ was lodged in the ofBce of the Registrar of Titles, together with a statement of the land sought to be affected thereby ; and, on the same day, was lodged the transfer, together with n statutory declaration of th«' sheriff's officer, verifying the due advertisement of the sale. The registrar, on that day, marked on the copy writ the time of service, but refused to enter it in the regiHter book. The lease contained the following condi- tion — •' Provided further, and these presents are upon the express condition, that no assignment or transfer of these presents, or other instrument affecting the premises he) vby demised shall have any effeci or validity v-ial- isft^i', unless and until the Governor, acting by and with the advice of the executive council, sanction the same ; and further, until the same be registered in the Office of Crown Lands, and all such instruments as aforesaid shall have and take priority, not according to their respective dates, but according to the priority of the regiscration thereof." The grounds of the refusal to register set out this condition, and stated that the copy writ liad not been registered in the Office of Crown Lands. The second summons was of a similar character, on behalf of Amess, the transferee ; and, both involving the same point, were argued together. Webb, Q.C., for the Registrar of Titles, showed cause : — As the lessee accepted the lease with such a condition, he, and of course those claiming through him, are bound by it, even if the insertion of such a condition were un- warranted by " The Land Act, 1869 " : Matt v. Peel.^ Sec- tion 106 of the " Transfer of Land Statute " (No. 301), » V. L. R. M. 27 ; 2 A. J. It. 1H3. 9m 504 TOnnKNS CASKS. provides thnt n transfer in purBuanee of a sale under a writ of ft. fa. sliall havt' the same effect as if made by tlie proprietor Tlierefore, as a transfer by tlie proprie- tor of this lease would have had no effect until sanc- tioned by the Governor in Council and registered in the Ottlce of Grown Lands, so the transfer by tlie sheriff is inoperative, and ought not to be registered until that condition has been complied with. It is not now a ques- tion whether the transferee could enforce a registration in the GflBee of Grown Liands. Tlie condition is not [•(il] in the nature of a mere covenant not to assign without certain consent, in spite of which a transfer by opera- tion of law might take i)lace ; it is a condition essential to the existence of the estate of a transferee, without compliance with which no such estate can come into existence. R. v. Boiard of Land and Works, Ex parte Jacomb,2 Joes not apply, as that was the ease of a man- damus to the board to i*egister. Worthington in support of the summons : — The con- diti\ould be required to alter that law need not now be considered ; but, assuming the Legislature contemplated such an object, language somewhat simi- lar to that used in the case of licenses would, no doubt, have been adopted. 8ub.-Kec. II. of Sec. 20 of "The Land Act, 18(59," provides that the license shall contain the following conditions : — " That the licensee will not during the c arrency of such license assign the license, nor tnins'* r his right, title and interest therein, or in the allotmemt therein described, [•GS] or any part thereof, nor sublet the said allotment or any part thereof, and that the license shall become absolutely void on assign- ment of such license, whether oy operation of law or otherwise, or upon the said allotment or any part thereof being sublet." No doubt can well arise as to the effect intended by the use of these words. They comprise In- voluntary as well as voluntary assignments ; but the words "transfei* or assignment" in Sub.-sec. V., taken in connection with the word "sanction," show that vol- untary assignments only were meant ; and the reason these words were used Is obvious. It might well be deemed undesirable to allow of a transfer to particular persons, although It would be a hardship to deprive a creditor of his right to enforce payment of his claim against his debtor. . This interpretation is borne out by Doe d. Mitchinson V. Ooi'ter,'' which, no doubt, was the ease of a covenant ; but such a provision must have the like meaning, whether contained in a covenant, a condition, or a statutory en- actment. The same point has been substantially decided In Ex parte Jacomb." It may be that the purchaser can » 8 T. R. 57. « 6 W. W. & a'B., L. 48. EX PARTE ELLISON. 607 be compelled to hold on the same terms as the original lessee, and that, before the purchaser will be able to transfer, he must obtain the sanction of the Governor la Council ; but it is not necessary now to decide that question. The order of the Court will therefore be that the Registrar of Titles register the writ of fieri facias and the assignment by the sheriff. Order accordingly. Attorneys fur the applioanta : — Cleverdoii St Egglcaton. Attorney for the Uegiatrar of Titles:— Ourner, Crown Solicitor. 1889.-H()IXJES, J.] [15 V. L R. 424. DAVIS V. DOUGALL. Vendor mul ptirvhaHer — Contract for hoU of linul — Spiri/ic fn'r- formance — Condition of mle — Title — Jirinnivff land under the •' Tranafer of Land SttUute " within »ij! vutntha- -Itfsdsaion— Time of the eanence of the contract — Waiver —Costs. By the first of the conditions uf sale attached to a contract for the sale of land, it was provided that the purcliase money should be £100 a foot, payable £800 in cash, and the balance, without interest, on accept- ance of title within fourteen days ; but, failing; the acceptance of title within that time, then such balance should be payable within two daya of oroduotion of certificate of title, clear of encumbrances, in the venaor's name. The second condition provided that the vendor should have the right to bring the land under the " Transfer of Land Rtatute," and if the purchaser should not accept title within fourtoen days, the vendor should forthwith lodge an application under the Act, and use hia best endeavours and make all pay men Is necessary to bring the title under the Act within six months from the date thereof. By the third condition it was provided that if the vendor failed to procure a certificate of title under the Act within nix months from the da> of sale, the purchaser should be at liberty to reject the title, and thereupo.^ his deposit should be returned to him. The contract was dated 5th June, 1888, requisitions on title were made on 16th June, 1888, and answers thereto sent in on 28th June. The purchaser not being satisfied with the answers, refused to accept the title, and required that the land should be brought under the Act Dy the vendor. Negotiations were then entered into between the parties to complete the matter without bringing the land under the Act, but they eventually fell through on the 20th July, and the vendor then applied to bring the land under the Act. On the 6th December, the day the six months expired, the application was approved of by the Examiner of Titles, and on the same day the Commissioner of Titles assented to the application, and the purchaser was informed of this, but the cortiticute of title was not issued until the 20tli December. Meanwhile ihe pur- chaser rescinded the contract on the ground that a certificate of title in 508 TORItKNS CASKS. the name of the vendor had not been produced within eix nionthe from the day of Hale, whereupon the vendor brou({ht an action for upeciflo performance of the contract. Held, that time was of the eaaence of the contract hi renpect of the third condition, and that it waH the duty of the vendor, immediately on the purchaHer'e refusal to accent the title, to take ntepH to vfii a uertiflcate of title aa Hoon aa he could, ana that the fact of no((otiationa haviuK been «ntered into to diapenae with the neceaaity of brin|{int( the land under the Act did not amount to a waiver of the purchaaer'a ri^ht to inaiat on time bein^ of the eaaence of the contract in regard to the aix montlia, hut that the defendant waa not entitled to ooato, aa the land had been itrautioally brou){ht under the Act, and he could have dealt with it aa if he had the title in hia own lianda. In order that an act may be a waiver of a condition of aale, it muat be inconHiatunt with the idea that the party ia atill goin|{ to rely on the condition. Action by Ocorjjt' DaviH apiiiiMt James Doupill for Bpcclttf iH'i'fonnaiUH* of a contrai't, b.v whleli the defen- dant a^i'e(>d to purcluiHe from the plaintitT hind liavin^ ;il feet froiitajfe to Speneer Btreet, by a depth of 8H feet to a right of way, at tlie price of £100 iH»r foot. [•425] The contract of sah? was in writing, and to it were 4it(a<-hed conditions of sale. The first of these conditions was as follows : — " 1. The purclmau money for tlie whole property ahali be th<* aum of iJlOO per foot, payable Jt';tUO oatili on the Hi){ninK hereof, and the balance without interest, on acceptance of title, within fourteen daya ; but, failing the acceptance by the purchaser of the vendor's title within tlie time named, then such balance shall be payable within two daya of production of certitlcate of title, clear of encumbrance, in the vendor's name." The second condition was : — " 2. The vendor slmll have the ri>{ht to bring the title to the property under the ' Transfer of Land Utatute,' and if the purohaaer shall not accept title within fourteen days, the vendor shall forthwith lodf{e an ap- plication under the ' Transfer of- Land Statute,' and use his best en- deavours and make all payments necessary to bring the title under the ' Transfer of Land Statute ' within six months from the date hereof." The third condition was : — " i). If the vendor fail to procure a certificate of title under the said statute within six months from the day of sale, the purcliHHer shall be at liberty to reject the title, and thereupon his deposit of £300 shall be returned to him." The contract was made on the 5tli June, 1888. On the IGth June, 1888, the defendant's solicitors sent to the plaintiff's solicitors requisitions on title. The an- swers to the requisitions were made on the 28th June. The defendant's solicitors did not consider these an- hAVIS V. DOUiiALL. 609 Hwors HatiHfactory, and rtMiuii'cd tliat the land Hhould be brought undei* the " TniiiBfer of Uuid Btntute." Nego- tiationM were then entered into between the parties to coniph'te tlie matter without bringing the land under the Htatute ; but, owing to a nilHunderMtanding, tlu'He fell through on the l!()th July ; and the plaintitT then t(M>k stepH to bring the land under the "TruuMfer of Ijand Htu- tute." The eertltl«-ate of title wan not, however, iHHued till 20t3i December. In the nietinitime, ai) the jt'rtitieate of tide had not been procured, tlie defendant's HollcltorH wrote to plaintitf*H MolicitorH informing them that an the certi- ficate had not been )>rocured within the hIx montliM al- lowed by the contract, the defendant rejected the title and claimed the return of the deposit and interest. There had been a converHation on the 5th December between a clerk of the plaiutiff't) Holicitorti and a clerk of the defendant'H Holicitors as to when the title would be ready. All the preliminarieM for obtaining the cer- tificate of title had then been complied with by the plain- tiff, the Examiner of Titles had approved of the applica- tion on that day, and on the same day the Commissioner [•420] of Titles assented to the application, but the cer- tificate was not issued until the 20th December. This action was now brought for specific perfornmnce of the contract. The defendant contended that the plaintiff was not entitled to have the contract carried out, and made a counterclaim for the return of the £.'J00 deposit and interest. Neighbour for the plaintiff. Weigall & Hayes for the defendant. Neighbour opened the plaintiff's case : — By the con- ditions of sale, if the purchaser was not satisfied with the vendor's title, the latter might bring the land under the " Transfer of Land Statute," and within two days after acceptance of title, the purchaser was to pay the balance of the purchase money. The defendant con- tends that, under the conditions, if he did not accept the vendor's title within fourteen days, the vendor had "forthwith" to bring the land under the "Transfer of Land Statute," and that he did not forthwith proceed to f filO TOHHKNH i'ASKS, 4lo MO in thtM ciiMo. No doubt that iit «o, but tlu> roaHon of It wiiM that iH'KotlatlonH had bwn ontored Into between th(> particM with tlie object of arrivinK nt a Hettleinent witliout tlie neeeMity of bringinK the land under the Aet, and were continued for some time after tlie purchaHer re(|uire<1 the vendor to bring the land und(>r the Act. After they ultimately fell through on the 2»th July, the vendor uned all renHonable despatch to bring the land under the Htatiite ; but, owing to the length of time iiecenwary to get the application tlnrough the Titlen Office, and the amount of time that had been lost by the nego- tiatiouH having been entered into between the partleH, the vendor was unable within the hIx months to bring the land under the statute. His application was, how- ever, practically granted within that time, although no certiticate had been issued. Under tlie circumstances the question will arise whether the defendant has not waived the right to treat the six months within which the certltlciate wuh to be obtained as of the essence of the contract. Welgall : — The question of waiver Is not pleaded, and we therefore object to Its being gone Into. [*427] Neighbour : — Then I ask for an amendment of the plaintiff's statement of claim by alleging waiver. [Hodges, J.- Mr. Welgoll ?] -What have you to say to this application, Welgoll : — All the facts were within the plaintiff's knowledge, and he started his case, entirely basing it on his alleged performance of all condltior s precedent. We go to trial upon that, and It Is submitted that at this stage of the case it Is too late now to ask for an amend- ment in order to make an entirely new case by alleging that It was not necessary that the conditions precedent should be performed, or that the performance of the un- performed conddtia ^ was waived: White v. The Der- went & Tamar Fire and Marine Assurance Co.* » 10 A. L. T. 146. hAVI8 V. tiOUUALL. All [lIodKeH, .1.— I WHH In that niMr. and It wan h<>lil that tluTo U van a allowed. Of rouiMi', If the defendant Im not leatly to jnt of claim. [lIod^i'H, .1.— Well, I will allow the .nnen >> %m¥: I 512 TOliltKNS CASKS. T-oSfisr. .. i (* r,h' ■fi ;■¥.•• say that if he fails to get a certificate within six months tlie purcliaser may rescind the contract. It is submitted that that does not malie the six months of the essence of the contract, that it would not have been sufficient to entitle the purchaser to rescind if the vendor was a single day or even a single hour late. x\.nd even if it did, the vendor was entitled to a notice before the expiration of the six months that the purchaser would rescind if the certificate v/as not produced before that time. I shall prove that the plaintiff, after the falling through of negotiations between the parties, used his best endea- vours to procure a certificate within the six months. Evidence for the plaintiff was then called, and the plaintiff's case was closed. Weigall, for the defendant, then submitted that the plaintiff had made no case, and that tlie defendant was entitled to judgment. It is submitted that time is of the essence of the contract. The parties clef^rly intended that it should be so, for, in addition to fixing a particular time, they provided that, if, at that particular time, a certificate of title has not been procured, the purchaser may rescind. [Hod!ges, J. — Mr. Neighbour has proved the facts he opened. I was waiting at the close of his opening ex- pecting you to ask for a direction.] [*429] There could be no waiver before the time had expired. [Hodges, J. — So I should have thought, but you do not plead that in your amended pleading, and the rules require that a matter of law should be pleaded. The plaintiff alleges that the defendant did so and so, and that that was a waiver ; and the defendant only denies that he did so, and does not say that, even if he did do it, it was no waiver.] It is wrongly called a waiver. The plaintiff states the facts which show it is only a question of extended time which he relies on. It is submitted that the defen- DAVIS V. DOUOALL. 618 dant is not called upon to go into evidence, but is cii- titled to judgment *qv a return of the £300 deposH and interest at six per cent, per annum for all the time the plaintiff had it, or, at all events, after the title was re- jected. THodges, J. — What autliority have you for claiming interest. The only way in which you can claim it is as damages for breach of contract.] This is a breach of contract, and the defendant is therefore entitled to interest: Weston v. Savage ;2 Lord Anson v. Hodges.^ [Hodges, J. — In the latter case the vendor under- took to give the title and did not do so. Here he has the title, and wishes to give it.] At all events the defendant is entitled to a return of the deposit and costs of action. Neighbour for the plaintiff : — If the parties had agreed after entering into the contract that the vendor need not proceed to bring the land under the Act within the six months, it could not be said that that did not amount to a waiver of the right to consider time of the essence of the contract ; and that, it is submitted, is what in effect has been done in this case ; the negotiations show, at all events, an implied agreement to that effect. [Hodges, J. — Waiving notice of dishonour of a bill of exchange must take place after the notice of dishonour. Before the notice of dishonour you can, however, give an extended time. The [•430] object of the negotiations here was simply to settle up the ma,tter, though incident- ally to that, if the parties had agreed, was the aban- donment of the bringing of the land under the statute ; but how does that make it a waiver of your duty to get the title within six months ?] If, as in this case, a vendor enter into negotiations which produce delay with regard to a matter which a » 10 Ch. D. 736. »5 Sim. 227. H. TOB. CAS.— 33 514 TORRENS CASKS. purchuBer has undertaken to do by a certain time, it amounts, if not to a waiver, to an extension of the time within which the act is to be done ; and, as the facts are set out in the statement of claim, I am entitled to regard it as raising that point. [Hodges, J. — Can you show me any authority that where a party has by contract in writing undertaken to do a certain act by a particular day, he can by verbal agreement ^vith the other contracting party vary that contract by dispensing with the doing of that act or by extendJng the time within which it is to be done?] Yes: the conduct of parties before completion may amount to a waiver : Hipwell v. Knight ; * so, too, waiver of time for delivering an abstract of title may amount to a waiver of the time fixed for completion : 1 Dart. V. & P. ( it a Ed.), 490-1. It is submitted that the condi- tion means that if within fourteen days the purchaser shall have refused to accept title — shall have inspected title and made requisitions thereon, and on the answers to those requisitions being made, has elected not to ac- cept title — then the purchaser shall proceed "forth- with " to lodge an application to bring the land under the statute. The time for lodging the application to bring the land under the statute has therefore been waived, and it is submitted that the purchaser is en- titled to six months to do so from 20th July: Barclay v. Messenger." Time is not of the essence of the contract, and a reasonable time and notice must be allowed : Parkin V. Thorold ; ® Perry v. Sherlock.^ [Hodges, J. — I do not see what the vendor has done inconsistent with his claiming that the certificate of title should be procured within six months.] [•431] The agreement was that there should be four- teen days for inspection of title, requisitioning, and so on, and a further period of six months for procuring the *4 L. T. (N. S.) Exch. in Eq. 52. »43L. J. Ch. 449. • 16 Beav. 59. 7 14 V. L. E. 492. DAVIS V. DOUG ALL. 515 certlflcnte. The vendor has by entering into negotia- tions extended the fourteen days, and thereby it is sub- mitted correspondingly extended the time for bringing the land under the Act ; if not, the purchaser has not six months to procure the certificate, and both parties regard that as a reasonable time. Weigall, in reply, was only called upon on the ques- tion of costs. [Hodges, J.— On the 5th December the certificate was practically ready, and the contract would have been completed had it not been for the breaking up of the land market. It is a case of a person having no merits availing himself of a legal right.] He has taken that legal point throughout ; the plain- tiff knew from tlie outset he had to meet it, and still chose to fight it. The defendant has succeeded upon it on a nonsuit application. [Hodges, J. — If you wish to give evidence bearing on the question of costs I will hear it] Evidence for the defendant on this point was then called. Wei all then summed up on the question of costs. Neighbour, in reply on the question of costs, was not called upon. Hodges, J. — In this case the plaintiff seeks specific performance of an agreement, dated the 5th June, 1888, by which the plaintiff sold to the defendant, and the defendant bought from the plaintiff, certain land. Ac- cording to a condition of the sale, described as the third condition, it is provided that if the vendor fails to pro- cure a certificate of title under the "Transfer of Land Statute" within six months from the day of sale, the purchaser shall be at liberty to reject the title, and thereupon his deposit of £300 shall be restored to him. After the contract had been made the parties were under- the first condition endeavouring to see whether or not the matter [*432] could be closed without reference to the Office of Titles and obtaining a certificate of title. The defendant ultimately refused to accept the title. After nj'W •! <', ■' olG TORHKNS CASKS. he had ho refusal iu'j?rttlation» were still continued on another basiH until 20th July, 1888, when they were An- ally concluded. The first condition provided that if the purclia«er failed to accept the vendor's title within four- teen days the balance of purchase money sliould be pay- able within two days of production of certificate of title clear of encumbrauces in the vendor's name. The plaintiff puts his case in three ways. First, that time under the third condition was not of the essence of the contract ; secondly, that even if time were of the essence of the contract under the third condition, it wan waived by the conduct of the defendant, and that the conduct of the defendant was such as to make it im- possible for the plaintiff to get a certificate of title within the six months ; and thirdly, that the defendant by his conduct did 'lot leave the plaintiff a reasonable time to get the certificate -f title within six months. In my opinion, time Is un^ir the third condition — I say nothing about the others — of the essence of the contract. The first condition provides that one party Is to accept the title within fourteen days, and If it is not accepted In that time, then the vendor shall have the right to bring the land under the operation of the "Transfer of Land Statute," and he Is to do It Immediately on the expira- tion of the fourteen days. I think that shows that It was the duty of the vendor to take steps Immediately on the refusal to accept title to get a certificate of title as soon as he could ; and the defendant was to pay the purchase money within two days after production of the certificate. And then under the third condition — I take It that Is what It means — the time for procuring the certificate of title was not to exceed six months, and If It did the defendant could rescind. I take it that that makes time of the essence of the contract on the authiorlty of Hlpwell v. Knight* and Barclay v. Messen- ger.® That being so, the plaintiff cannot succeed in en- forcing specific performance of the contract unless he can show that the condition has been waived. There Is 8 4 L. J. (N. S.) Exoh. in Eq. 52. •4.SL. J. Ch. 449. LA VIS V. DOW i ALL. 517 no «'vi(l«Mi('»' Hufficient to HutiHfy me that tlu* eonditiou has been waived. In in,v opinion, an act to amount t(» a waiver [•4;{:{] muHt be one uiiicli is inconHistent with tlie idea tl»at tlie party iw Htill f^oinj; to rely tiiitions extendinj^ np to the 2()th July are inconsist- ent with the defendant, when the six months expired, insistin}? on his right to reject the title, and claim back the money paid, and on the tinu? tlxed by this tliird con- dition as being of the essence of the contract. Tliere is no evidence that the defendant did not intend to rely on the condition that the certificate of title was to be procured in six months, or that the defendant had done anything to make it impossible for the plaintitf to pro- cure tlie certillca4:e in the six months, or that he was not left a reasonable time in which to procure it. It cer- tainly was not impossible, and it seems to me he was left a reaso'-'.ible time within which to do it. It was put for the plaintiff that the certificate was procured as tht, title had been accepted by tne Titles Office ; but I take it that to be " procured " it must be iu existence. There- fore, on these grounds I think the plaintiff fails, and that the defendant was justified in rescinding the contract and claiming the return of the deposit, as he did by letter of ISth December. The judgment will therefore be against the plaintiff on the claim, and for the defen- dant on the counterclaim for £.300 and interest at « per cent, from the 18th December. The only remaining (piestion is that of costs. I shall give no costs to either party on this ground ; tiiat there certainly were ixegotiations which might have tenni- nated without any application to bring the land under the "Transfer of Land Statute." These negotiations went on up to the 2nd July — considerably beyond the four- teen days mentioned in the contract, but were then fin- ally settled by one telling the other to bring the land under the Act. The application was ready and sub- 518 TOURKNS CASKS. Htantlan.v coinpli'ted within the time required by the c'ontmct. 1 I'uve not the slljjhteHt doubt thiit If the de- fendant had wanted the land, and If the circuinstanceB had continued In J)ee<'niber a« they were when the con- tract was made, there would have been no dlftlculty whatever, becauise, undoubtedly, the defendant <'ouKl have dealt with the land on the 5th December pretty much as If he had the title In his own hands, for al- though there [•434] may be possibilities, we have to deal with things likely to occur In actual life. I can see no reason for a person in the defendant's position not deal- ing with this land on the 5th December as If the certi- ticate had been Issued ; and, although he was acting within his strict legal rights in getting out of tlie con- tract, I do not think I am therefore bound to give him his costs ; and, altlnougli <'ounsel may have advised tliat he lias a legal right, it does not follow that in every case because Ji person has a legal right to do a thing lie will get the costs of litigating it. Tliere are at the present time an enormous number of cases of persons who, hav- ing made contracts, are endeavouring to get out of them on their strict legal rights, and although they may suc- ceed in enforcing those strict legal rights, I do not think they are entitled to the consideration of the Court. Judgment for the defendant on the claim without costs, and for the defendant on the counter-claim for £300 and interest from 18tli December, at six per cent, per annum without costs. Solicitors for plaintiff :— Pentland, Roberts & Thompaon. Solicitors for defendant :— Duffett & Prown. KX PARTE (iOLDSWORTHY. 519 In Chamdsas, Victouia.— Keufehd, J.j [8 A. L. T. 181. Ex PARTE GOLDSWORTHY. ** Tmmfer of Lund !>talute, 1866" {Xo. 301), nee, 117 — Judicature Act, 1883 {Xo. 761), sec. 10 {7)—llemocid of caveat— I'ro- cdui'c — Wtiut of juriHiUction — CostH — Where a Judije has absolutely no jurisdiction to entertain an application made to him, the rule " no jurisdiction no costs " must prevail. Application on summons under See. 117 of the " Trans- fer of Land Statute, 180(5," on belialf of the proprietor, calling upon the caveator to show cause why the caveat should not be removed. Mr. Amess, on behalf of the caveator : — Your Honour cannot entertain this application. The procedure in cases of this kind has been settled by the Full Court in the case of Ex parte Vincent, 8 A. L. T. 5, where it is laid down that " where a party seeks to remove a caveat the I roper course to adopt is to obtain a summons from a Judge in Chambers, returnable before the Full Court, calling upon the caveator to show cause why the caveat should not be removed." I therefore ask that this sum- mons should be dismissed with costs." His Honour : — I dismiss tlie summons, but, as I have no jurisdiction, without costs. Mr. Amess cited Hamilton on the Judicature Act, p. 455, as showing that costs could be given although there was no jurisdiction [*182] to entertain the matter. His Honour : — I will reserve the question of costs. His Honour, on a subsequent day, said) : — In this case I reserved my decision as to whether I had power to give costs. At p. 455 of Mr. Hamilton's work on the Judicature Act the law on the subject is stated as fol- lows :— " Formerly where an application was made upon which the Court had no jurisdiction to adjudicate no costs were given, and each person had to bear his own costs. That, however, has been altered, and the Court ,||; 620 TQHUHNS CAHEa. now liUH |M»W('i' t«> onh'i* tin* piivninit of nmtH in hiicIi caMcx." Si'Vfi'iil nutliorilifH for (IiIh propoMitioii arc t'lt»'(l, wlilrli I hav«' (>xainiii«' want of juriHdroprietor for tlio removal of a caveat on the ground that it int jriured with ttome future intended dualiii;,'M vvitii the land will nut be entertained by tlie Court when it ia aciniittnd or Hhosvn tliat the caveat IniM bHen lodged in aucordance with the Act and by a perHon entitled to lod^o it. lu anch a case the rei0,'' by tlie registered pi-oprietor of a certain mineral lease, calling upon the caveators to show cause wliy two caveats lodged by them should not be removed. Some time in 18!H, several persons, includ- ing the applicants } nd the caveator in the present pro- ceedings, banded themselves together into a syndicate called the " IJoga Syndicate," for the purpose of obtain- ing a mineral lease (f some land containing gypsum deposits, and it was agreed that wlien the lease was obtained it sliould be transferred to some company to be formed, according to the votes of the majority of the syndicate. The lease was duly applied for by two mem- /.V ht: TALBOT ASO Kt.LLY. 521 Imth of tiM' H.viullrati', Tulloii ami liiiiiiiii, wan ^jnmtiMl and wjiK iM'j{lHtrr»'«l in tln'li- iiann'H, and lln-.v rxmitrd a d»Mlaratl«»n <»f trnnt in \vlii«li lln^v Hlalrd iliat IIh-v iirld th«' h'aw for tl\«' Kvndlcat*', and tliaC tin'.v h1iou1<1 tninHfi'i* It Hnl»j«M't t«> tlu' vott'M of iIh' niajoiily of llic Kvndlcatt'. Two of the nHMnlMTH of llw Kvndl<-al<', KpIIv and Talltot, tJH'n lodp'd tlic ravcalM wliicli it wan aow hoii>,'Ii1 (o iTniovt'. Mr. nay<*H in Hnpport of tlio Hiiinnutnw : — Tiilx iw a HnninionH nndrr Sec. 14') of tlio "TranKft'i* of Land Act '* by tilt* ir^iKtrrcd pntprlctoiH, Mr. Tat ton and Mr. Innian. of (•»M'tain niincial h-a-scs containinK jfyp.Hnni deposits, Ht'ekinj; to i'»'inov«' tlu' cavcatH lodged l»y llir cavcatorH, McHsis. TallMtt and Kelly, who claim to In- licnt'llcially IntercMfi'd in the lease. We say that l»y the ani'«'»'»ient undei* which thi* caveators claim it was agreed ttial these leases should lie ap|ilied for and held by Tntton and Inman, and that such lease should be transfi'ired to a coiupany to be formed accoi'diii}; to the votes of the majority of the syndicate, which consisted of the I'e^jis- tei'ed pi'opi'ietors, the caveators and live other pei'sons, who had banded themselves together foi- the purpose of obtaining this lease. [a'Heckett, J. — There is no ti-ans- fei' stopped by these caveats, and it appears to nie that the object of this summons is to get this Court to settle a partnership suit, but does the Act contemplate such a proceeding as that?] The bona fide obje«'t of this sum- mons is to have the caveats removed. "NVe do not say that we wish to deal with this land against the caveators' interests, but what we do say is that their caveats are too broad, and if they would modify their caveats to in- clude only their own interest, that is all we would ask. Seven out of the syndicate of nine desire to have their caveats removed and a transfer of the lease made to the company. The caveators' interests arise solely out of the agreement or declaration of trust, and as the sole object in view when this lease was applied for was to float a company to work the lease, the caveators, I sub- mit, had no right to lodge the caveats, the result of which is to stifle that very object. We do not object 1f^^ 62% rollHKSS CASKS. to n nivt'iil hriiiK IihIkkI to prot«>rt Hit* niv«>iitorM' Y\\f,\\\% iiiuli'i* tlu' aKiMTiin'iit, vlr... j-KuliiMr nii.v traiiHfiT t'xrrpr micli h'liuwfi'r iih tlu' innjorlty of tin- mm iiiImtk of tlit* iiyii(ll('at«* hIiiiII r«>4|nli'(> ;> be iiiihIc. Mr. Wi'lKall to oppoMr thr Miiiimioim :— Tt U ml- inlttrd that tin* ravt'atoi'H an» two tfni -.I quo truHtM, and thai tli)\v hav«> lodged cavcatM aKiiiiiHt all d<>alinKM witii tin* land nmliary to their Intrn'itM. TIh'.v Huy "If we nre particx to th«> iiiHtniiiuMit tluMi It Ih all rlKht ; [*271] but If W(» an» not ]Nirtl(>fi, tlu-n lh«'K«' cavi'atK wvv a warn- Inj; lo all prrHonH who d»»al with tho rcglHtort'd pro- prU*torH." The onl.v way tlu'y <'onld prot«Mt tlnMnwIvcM waH to Iodj;«' tln'H«» ('av«»atw. 'i iio rlTiMrt of lodKinj; tlu'si? cavoatK Im that if tlu' r»'KiHl»M*«'d propriotorM lodj;*' a trai!Hf(>r of the land th«> ravratorH will \t,v\ noti(*(>, and tlmi tlicy can jfo and HuppcMt tlwir cavinitH ; or if tlwy don't the cavralM will laps«'. Tin' prcHcnt application is priMnaturc, and nothing: haH an yet been done whicli caHls any duty upon the <'aveatorH to support or withdraw their caveats. No IrauHfer, nor has any refristratlon ab- stract been lodj,'ed, and the registered proprietors <'an- not apply t(> j?et rid of a caveat niendy because it will embarrass some future (M)ntemplated dealing with the land. Mr. Hayes : — The Court will look Into all the circmn- stances of the cjise and see whether the caveators were justified in lodging the caveats. In the present case, though the caveators have an interest in the lease, they had no right to lodge caveats when the object and result of tile caveats is to defeat the very object for which the •syndicate was banded tog(?ther. Sec. 147 (»f the " Trans- fer of Land Act " says " reasonable cause," tlierefore the Court must consider the facts. The form of the caveats is improper. [Higinbotham, C.J. — Has this Court any power to prescribe the fonn of caveat, seeing that the caveators have adopted one of the forms permitted by the Act, though a form more consistent with the rights of all the parties might have been cliosen?] The cavea- tors had no right to lodge caveats absolutely forbidding a transfer, and they should have chosen one of the modes IJf UK TAl.noT AND KKLLY. 618 nioMt Niiiliibh' l<> lli<> piirtii'uliir factM of tlio <>nH«>M. [ni^iiibuthiiiii, <1J. — <'an you iiiIn«> (liMpulnl qiicMtloiiN of tact on an applinition of tliU kind?] I think llial tin* Art contt'niplatcM (hat t\u* t. Iii(;intiothani, r..I. — ThoHi* two niMon muMt, w«» tliink, bo (Irtrrniinrd witliout conKidcrin^ in any way tli<< «liM- putcd fartH raittiMl hy alYldavilM. It Ik adniitt«>d that t:lu>80 two cavcatoi'H arc bc^nt'tlcianlcN, and that they riaini an intcretit in the land, and tlH>y havo eacli of tlicin tihMl a ravcat whicli Im in th(> form allowed by th«> Act, \\7.., " unl«>HH th(> Hani<> be xubJ.M't to my Haid claim or unlcMS I am a party to the inHtrnmcnt." The intention of the Art wan that wlien a caveattn 'ndj^eH a eaveat in a**- eordance with the fonuM of tiie Act it lioH upon tlie rejfiHtered propriet«>r to K'*t that eaveat removed in tlie way ap|K)int(>d by the Act. ^ lon^ as he iocs not wish to trauHfer, no wronj? itt done; but if «»' \«irtlu>H to trannfer, iiotitc of such intention in conve'ed lo tlie eaveator*, and thi> raveut will lapHe unlesH the caveator takeu utepH tu bup])ort hlH claim. That is the courHe that ought to be taken uy the pre- sent applicantH, and they should not seek to remove caveats which have been lodped in accordance with the Act and by perHouH entitled to lodjje them. The ap- plicMiitM have taken tlie wrong course in the present case, and this summon.s must be dismissed with costs. Biilicitors for the applicKuts :— Lynch, McDouald, Htillmau A Keep. Holicitor (or the caveatorH :— Talbot. VicToiiiA.— Williams, J.] [6 A. L. T. 85. Re O'CONNELL AND "THE TRANSFER OF LAND STATUTE." Mandtrnua—*' Tramfer of Lmvl Statute, 18GG " (Xo. 301), sec. 132 — Circumstances untler uhich the Court will ijrant a ninndomua cnllinij on the lleijiatrar of Titles to call in a certi^licnte of title, or to ijire tlie reason for not doinij so. Rule nisi for a mandamus calling on the Registrar of Titles to show cause why he should not give bis reasons J 624 TORRENS CASES. for refuHliiK to i-all iu a certiflcote of title granted to one O'Conuell for Home land at FiJotHcray, or why he should not call in the certiticate. In 1801 a person named lilerrick owned some land at Footscray. He died in \])vi\ of that year. By his will he devised the pro perty to his wife. In December of tlie same year Mrs. Merrick conveyed to Messrs. Hodgson and others the 'Minsold land" that her husband had owned at Foot- scray. That conveyance was registered. The land was afterwards conveyed to other persons, the different al- lotments being specified in the several conveyancea. Amongst others was one known as allotment 20, which had come into possession of an investment society. That society lately desired to deal with allotment 20, but then discovered that a certificate of title to it had been granted to O'Connell. It appeared that in April, 1854, !Merrick liad entered into a contract to sell this land to a i)erson named McCarthy. This contract was, how- ever, not registered till the 17tli July, 1874, and immedi- ately afterwards a transfer by McCarthy to O'Connell was given, and the latter received a certificate of title, which the registrar had since refused to call in, and he has refused to give any reasons for his refusal. Mr. Higgins moved the rule absolute ; Mr. Worth- ington showed cause. It was contended for the registrar that the applica- tion sliould not be granted. Sec. 132 of the " Transfer of Land Statute '' provided that in case it shall appear to the satisfaction of the registrar that any certificate of title has been issued in error, or contains any misde- scription of the land or boundaries, or that any entry or endorsement has been made in error, or that any certi- ficate has been fraudulently or wrongfully obtained, the registrar might apply to have the certificate called in. In this case the registrar was not satisfied that the case came withiu any of these provisions. His Honour said that he should refuse the application, as it was not proved to him that it appeared to the naif.; , RE O'VONNELL. 626 satisfaction of tlie regiatnu* tliat tl'e certificate liad been issued in error, or contained a misdescription of tlie land, or liad been fraudulently or wrongfully obtained. Rule for a mandamus discharged, with costs. Supreme Couiit, Victoria, 1884.] [10 V. L. R. 328. In re "THE TRANSFER OF LAND STATUTE," Ex PARTE PECK. 15 Vic. No. 10, sec. 19—'' The Judicature Act, 1888" {No. 761), sees. 10, 19— Supreme Court littles, 1884, Ord. 63, li. H*— Pntctice — T'h' parte application. Rula 2* of Order 63 of the Supreme Court Rules, 1884, enables a single Judge at any time to entertain any application which he may think requires to be immediately or promptly heard, though the matter con- cerned be such as should, apart from the Kule, be lieard by the Full Court alone. An application to restrain the Registrar of Titles fiom registering a transfer of land for a time to be fixed should be made upon notice, and not ex jiurte. Summons referred to the Full Court by Higinbotham, J. This was a summons on behalf uf Hugh Peck, the caveator, under Sec. 117 of the " Transfer of Land Sta- tute " (No. 301) to [♦329] the Registrar of Titles to delay dealing with a transfer of land at Nunawading, mort- gaged to the Land Mortgage Bank by Peck, there being a dispute between him and the bank as to the amount due upon the mortgage. The summons came on in the first instance before Higinbotham, J., in Chambers, within fourteen days after notice to the caveator of a pro- posed dealing with the land, and at a time when the Full Court was not sitting. The learned Judge granted an order to deliay further dealings with the land; but, feeling .-^ome doubt whether Sec. 10 (7) of "The Judicature Act, 1883 " (No. 761), d'd not render it necessary that the Full Court alone should deal with such applications, referred the summons to the Full Court, in order that the question might be there -^ecided. f m h'r. 526 TORJtENS CASEH. I Neighbour, for the caveator, applied ex parte for an order to delay reglstratiou of any dealing with the land for such period as might be fixed. Per Curiam.^ It is better that an application of thig character should not be made ex parte, but by motion upon notice, as required by Order 52, Rule 3, of "The Rules of the Supreme Court, 1884.'' Box, for *he caveator, now moved upon notice : — The matter was one which the learned judge had jurisdic- tion to entertain. Sec. 10, Sub.-sec. 7, of "The Judica- ture Act, 1883 " (No. 761), provides that the Full Court shall hear and determine "all proceedings upon or con- nected with caveats under the 'Transfer of Land Sta- tute.' " But it is questionable whether this provision was intended to apply to an application such as the pre- sent under Sec. 117 of the Act. It is not necessary, however, to press this distinction, because Sec. 19 of " The Judicature Act, 1883 " (No. 761), has given a power which has been exercised in rule 2* of Order 63 of "The Rules of the Supreme Court, 1884." 2 That rule, which was intended to replace what was known as the [*330] emergency clause, Sec. IP of the Act 15 Vic. No. 10, by its terms, enables a Judge sitting as the Court in cases of emergency to deal with matters otherwise cognis- able by the Full Court alone. If this be not its effect great inconvenience and possible injustice might result through the Full Court, as in the present case, not being available. The merits of the application are not at- tacked. a 'Beckett, for the registered proprietor, the Land Mortgage Bank : — This is not a matter which could pro- perly be entertained by a single Judge. There is no escape from the terms of Sub.-sec. 7 of Sec. 10 of "The Judicature Act, 1883." It cannot be said that this pro- ceeding, directed by Sec. 117 of the " Transfer of Land ^ Higinbotliam, Williams and Holroyd, JJ. ^ " 2*, One of the Judges of the Court shall be accessible for the hearing in Melbourne at all times, of all such applications as may require to be immediately or promptly heard." . i i EX PARTE PECK. 627 Statute " as the proper step to be taken by a caveator, is not a proceeding " upon cr connected with " a caveat. Therefore the caveator, not having taken the proper stepa within the time prescribed by Sec. 117, is now too late, and his caveat has lapsed. Rule 2* of Order 63 has not the effect contended for, 80 as to enable a single Judge at any time to do a thing which only the Full Court is, apart from this rule, en- abled to do. Whatever be the intention of Sec. 19 of " The Judicature Act, 1883," the rule in question is not so framed as to have this extraordinary effect. The words of the rule are " shall be accessible at all times.'^ If it had been intended that a single Judge should be able to exercise the powers of the Full Court, it would have been so expressed. The power being given " at all times " is equally available when the Full Court is actu- ally sitting ; and thus, if the view taken by the caveator be correct, one Judge might at any time, and during the sittings of the Full Court, do that which the Act ex- pressly provides shall be done by the Full Court alone. Higinbotham, J. — I am glad, after fuller consideration of the question, to be of opinion that in entertaining this application I did not exceed my jurisdiction, a point upon which I had at one time great doubts. I am now o*^ opinion that Sec. 19 of " The Judicature Act, 1883 " (No. 761), was intended to take the place of Sec. 19 of the Act 15 Vic. No. 10, by enabling Rules of Court to be made by which a Judge of the Court should be em- powered ["SSI] to entertain all applications whatsoever, whether within his jurisdiction as a Judge of this Court or not, provided such application were such as might require to be immediately or promptly heard. On this view of Sec. 19 provision is made for all cases of urgency, and the possibility of injustice seems to be guarded against by the provision allowing an appeal at all time» to be made, similar to that provided in Sec. 19 of 15 Vic. No. 10. If this be the extent of the section, then Rule 2* of Order 63 (though not perhaps framed as accurately a» might be desired) includes a case not otherwise within the jurisdiction of a single Judge. It might have been 528 TORRE NS CASES. Y if' \ mare siiirablo if the iMile had been limited to tliose pe- H^hIh at wiiich tlie Full Court waH not Hitting ; but there can be no doubt that if any application were nmde under the rule during; a sitting of tlie Full Court, a Judge would be very reluctant to exercise a jurisdiction which the rule gives merely with the object of preventing pos- sible injury or injustice by reason of the Full Court not being available. Being of opinion that the larger con- struction of Wee. IJ), which I adopt, enables such a rule to be made, I think that this rule gives power to any Judg<', at any time when he is accessible, to deal with any such applications as he may consider should be im- mediately or promptly heard, and that this Court has jurisdiction now to entertain this matter. The registrar will be directed to delay registering any dealing with the land for a period of one month, the caveator paying into Court £100 within five days as an indemnity against any damage that may be sustained by reason of the disposition of the property being delayed. Williams and Holroyd, JJ., concurred. Attorney for the caveator : — Bardwell. Attorney 8 for the proprietor : — Macgregor tained a writ of fl. fa. against Bean, which was sent to the sheriff on the 30th September to be executed. A sum was paid on the writ, leaving a balance of £44 Gs. lOd. due. Nothing further was done in regard to executing the writ till July, 1882. In June, 1882, a Mrs. Warburton issued execution against Bean for £220, and notice of the issue of this writ was given to the Registrar of Titles in pursuance of Sec. 106 of the "Transfer of Land Statute," so as to bind any lands belonging to Bean. The writ was also given to the sheriff. On the Gth July certain land and leasehold pro- perty of Bean were sold by the sheriff ; the leasehold realised about £2, and the land about £71. The plain- tiffs afterwards served a notice on the Registrar of Titles of the issue of their execution. The question was whether the plaintiffs, having issued execution before Mrs. Warburton, could claim payment of their debt in priority to her, or whether, as she had first given notice to the Registrar of Titles that she had issued a writ of fl. fa. against Bean, the sheriff was not bound to pay her flrst. It was stated that the sheriff sold under both writs. It was contended for the defendant that by Sec. 106 of the " Transfer of Land Statute," the writ that was flrst served on the Registrar of Titles had priority. That section provided that no execution registered prior to or after the commencement of this Act shall bind, charge, or affect any land or any lease : but the registrar, on being served with a copy of any writ of fl. fa. issued out of the Supreme Court, shall enter the same in the register book, and after the land shall have been sold under such writ, the registrar shall enter the transfer- in the register book. It was contended for the plaintiffa that that section had nothing to do with the duties of the sheriff, but was only a matter of conveyancing, and that the law still remained in force, that the sheriff must pay the creditors according to the time when the different writs were lodged with him. U.TOR.0AB.— 34 530 TORHKNS CASKS. Mr. Hodges for plaintiffs ; Mr. a'Beckett and Mr. Anderson for defendant. The Court held that the plaintiffs were entitled to be paid their debt in priority to Mrs. Warbiirton, and gave judgment for the plaintiffs. Victoria. — Molesworth, J.] [4 A. L. T. 37 KICKHAM V. THE QUEEN. The purchaser at a sheriff'! sale of a lease under the Lands Act, 18G9, is entitled, on payment of overdue rent before entry by the Grown for non-payment, to obtain an injunction restraining the Crown from proceeding for a forfeiture. This was a petition by Lawrence Kickham seeking to restrain the sale of certain land in the parish of Kanya- pelia. In June, 1876, one Wm. Barnesley obtained a lease of the land from the Crown, undei the Land Act, 1869, for seven years. Barnesley was i.aed by certain credi- tors in 1878 ; execution was issued against him, and in June, 1879, the sheriff sold the land by public auction for £11 to Lawrence Kickham. The transfer from the sheriff to Kickham was duly lodged at the Titles OflBce. Kickham went into possession, and Barnesley attorned to him as his tenant. One J. D. Bertram had, on 2nd April, 1879, lodged a caveat against any dealings with the land, claiming that an equitable mortgage over the land had been given to him by Barnesley. This caveat was not prosecuted. The registrar, however, refused to register the transfer from the sheriff to the plaiutiif. Owing to the difficulty in obtaining a tit'o. the plaintiff did not pay the rent to the Crown. •• ■! :,a June, 1880, the land board recommended that xb [■ .?e be forfeited. The J plaintiff, hearing of this, inqTjii -r it the Echuca office, and ascertained that there wsh x12 4s. due for rent ; this sum he tendered, but the officer refused to receive it, and the plaintiff, therefore, instituted this suit to prevent the forfeiture being carried into effect. On an application in February last, for an interlocutory injunction, Mr. Justice Molesworth held that the plain- KICKHAM V. THE QUEEN. 681 tiff could by tender of the rent prevent the forfeiture, a»id granted the injunction (3 A. L. T. 80). Tlie ca«e wa« afterwards set down for evidence, but no additional material facts were elicited, and the case came on for hearing. Mr. Moore and Mr. Topp, for plaintiff ; Mr. Worth- ington, for the Crown. His Honour, without calling on plaintiff's counsel to reply, said that he apprehended that by the law of the country a leasehold was liable to be sold under a writ of fl. fa. It was legally set up for sale, and legally sold to the plaintiff. He had already intimated that the " Trans- fer of Land Act " had nothing to do with rights, but sub- jected an unregistered person to be defeated by con- veyances, if registered. But otherwise, a sale under it was the same as under the ordinary law. The present plaintiff became an assignee of the tenant's right to tender the rent. The Crown was entitled to the rent, and it was immaterial who paid it. Whether plaintiff was the registered assignee of the lease or not, the Crown had a perfect and unimpaired right to the rent. So also as to the covenants in the lease. If they were broken the Crown might terminate the lease, no matter to whom the lease might belong. He thought the plaintiff was entitled to a declaration that his tender of the rent prevented a forfeiture. He therefore declared that the tender of rent in the petition mentioned saved the leasehold interest therein mentioned from being liable to forfeiture for non-payment thereof. Provided plaintiff paid the said rent to the proper officer, or ten- dered the same, the injunction already granted to be continued ; plaintiff to be entitled to his costs of the suit. Solicitor for the petitioner : — Colles. Solicitor for the Crown :— Sutherland, Crown Solicitor. f 532 TOItlUiya t/UVAA Sui'UEMK CouuT, VicToKiA, 1893.] [15 A L. T. 22. (JRECjORY and oTiiEus V. ALUKK and othehs. Mortiiiiffe (if an inteatatH'H fntttte hy an iiilminintratrix t(t juiy her uwn debt — Murtijiuiic, title of — " Tiitmfcr u/' LanU Act, 1890," *('(•«. 74, 110 — fraud, meunimj of. A , the adininiMtratrix of an intcstuto'a estate, rnortga^ed part of the estatti uf which ttlie waa the re^isterud prtjprietor, under the " Truimfer of Land Act, IH'JU" to B., to stcnre the payment of £1,000 owin^ by her to It. At the time H. took the niorttjage he knew tliat A. watt adniiniH- tratrix, and tluit tlie land inort^a^^ed formed part of the intestate's eHtate: Held by Wiliiama and Uoud, .)•!., a'lteckett, J., dissentient, that B.'s title was nut uccpiired by fraud witiiin tliu meaning of the " Transfer of Land Act, 18*,)0," and that therefore it could not be defeated. Per Williams, J. — "Fraud," in section 74 of the " Transfer of Land Act, 1I4U0," means moral turpitude, actual dishonest dealing, and does nut include what is known as "constructive fraud," and the latter portion of section 74 of the Act amounts almost tu a statutory declaration that for the purpose of invalidating title under the Act " fraud " is not to include what is known and described as "constructive fraud." Per Hood, J. — The fraud referred to 'n the " Transfer of Land Act, 18'*0," is actual moral depravity, some intentional wrong-doing or wilful violutiun of the common rules of right and wrong, and not constructive fraud. Per Hood, J. — The maxim that everyone must be presumed to know the law may be pushed too far, and it is not correct to say thac for all intents and purposes a person must be taken to know the legal conse- quences of his acts, and when fraud has to be established it is knowledge tl hIiouIiI )>(> Hft nHiilr. If tlii> laiul had not iM'pn nndor tli«' "TranMfi'i- of Land Htatnti'" tlu» moil- \H\[lv wonld Im> Hliown to !>«• had. hiaHnindi an it wiim niadf hy tho a«linlnlMli*atiix to nccnn' h«'r jtrlvatt- drht ; hnt a« h.v H«M'H. 74 and, \\\) of thr "TiaiiKfci- of Land Art " tho tlth' of a pro|)rl('tor In niado ahwolnti' «»xr(»pt In th<* (■aM(> of fraud, tlic dofciKhint'H tith> Ih ^(»od nnlcNs the factH in «'vid«'n«'«' ar«' Hntllcii'nt proof of fraud witldn tlu» meaning; of tlu'w HiM-tionn. In it to he Inferred from the factH in «'vid«MH'(», In tin* ahHcnr** of explanation by the defendant, that he wan aetinjf diHiioneHtly ; or do the faetH demand no explanation from him and require poHitive proof (»f a fraudulent intention in order to en- tabllHh fraud ? In wupport of tlie latter view tlic defen- dant relieH on tlie wordn in Hec. lU): "No person nhall "be utTec'ted by notice, actual or conHtructlve, of any " truHt, any rule of law or equity to the contrary not- " withstanding, uid the knowledge tluit any Huch truHt " is in existence shall not of itself be imputed as fraud." I think these words mean tlmt the person dealing with a trustee shall have no duty cast upon h\m of seeing that the trustee is acting within Ids powers, or properly as regards those whom he reiM'eseiitH ; but that if the transaction is to the knowledge of the person dealing improper with regard to tlie cestid que trust, the con- currence in the breach of trust by the person dealing is actual, not constructive fraud, and therefore fraud within the section. The section does not say that con- currence in ft breacli of trust is not to be held to be fraud, but that knowledge of the trust is not of itself to be imputed as fraud. This knowledge is not an im- material fact, and eoinbined with concurrence in an act in breach of the trust will give rise to the imputation. I think, therefore, that in this case, the facts proved in the absence of any explanation were apparently in- UHKOOHY I. ALUKH, Ml Id hliii l>fl>iuillllt tip. Til' of fllClK liiul not III' tiiotl- k'lIM lllllil)' ; but an Art" tin' t in tilt' llh'HM lilt' (I wllliiii ■ifd from latloii by r ; or do d i'('i|iiiro b'r to OH- III* (b'fi'ii- 'Hon Hhall I', of any raiy not uch truHt iH fraud." ling with of Ht'elng ' properly lat if tlu' n dealing the con- n dealing ore fraud that con- eld to be t of itself lot an im- in an act nputation. proved in rently in- roiiHlMleiit wllli hoiiPNty and Muni'leni proof of fraud within the Meclloii. No kliowh'dgc of law Im retpilred to iindcrMlaiid that a man ought not to pay IiIm own debt with other perHttiiM' property, or that if he U a iruMiei* for othei'M, he ought not to UMe what beloiigH lo thoMi- othi'rH for IiIm own beiietlt. Thexe plain ruleM of fair dealing are broken when an adminlHtrator h 'Mm or mortgages an HetH to pay hin own private deblH Inetirred before or after the death of the intcHtate, and the pernon ho paid, who knowM of the triint, niiiHt be takt'n li» be dUhoiieHt when he renialuM Hllent though a*'!<- t.« Hpeak. 1 did not iinderHtand the plaintiff to eontend that roiiHtructive fraud would be Hutlleient under See. 144), but that the factH In evldeiK'e, In the abnenee of any explanation, proved actual fraud, and with thlH ('ontentieaehliig them the onus of proving a fraudulent Intent. The pernon whottc deal- ing Ih apparently wrtuig may be able by explanation to remove the Imputation, but If he dnoH not explain, no further evidence of dlnhoncHty than the dealing Itnelf Hhould be required. There Ih a de» l»lon of the late Mr. JuHtlce MoleHworth directly In point. In which he held that where a bank made advanceH to an adminlHtrator, which, to ItH knowledge, were made for the purpoMe of building ujion the land which he held an adminlHtrator, the bnnk'H mortgage over the land wan Invalid, having been given to necure expenditure wiiich the bank knew tu be illegal. The learned Judge did not in terniH find that thin amounted to fraud within the exception of the *' Transfer of Land Statute," but Hald that the "Trannfer of Land Statute" would not give protection to dealingH by an adminlHtrator which would be invalid by an or- dinary adminlHtrator ; and that an adminintrator cannot generally mortgnge to a mortgagee, knowing, from the nature of the transaction, that he is not performing his duties: Droop v. Colonial Bank, G V. L. R. (Eq.) at p. 232. It is clear that under the old law a person taking the chattels of an administrator in payment of his own 538 TORRENS CASES. debt, or as security for it, was answerable to the persons beneficially interested, and could not acquire title as against them. When the cases on the subject are ej- amined, they appear to turn not on the equitable doc- trines as to notice and constructive fraud, but on such transactions as the present being actual fraud on the part of the person dealing with the administrator. If this be the correct view these cases are authorities as to what should be considered fraud within the meaning of Sec. 140. As was said in Kean v. Bobarts, 4 Mad- docks, at p. 357 ; " Every person who acquires personal assets by a breach of trust or devastavit in the ex- "ecutor is responsible to those who are er-'itled under "the will if he is a party to the breach of liiust. Gen- "erally speaking, he does not become a party to the " breach of trust by buying or receiving as a pledge for " money advanced to the executor at the time any part ' of the personal assets, whether specifically given by the " will or otherwise, because this sale or pledge is held "to be prima facie consistent with the duty of an ex- "ecutor. Generally speaking, he does become a party " to the breach of trust by buying or receiving in pledge " any part of the pursonal assets not for money advanced "at the time, but in satisfaction of his private debt, " because this sale or pledge is prima facie inconsistent " with the duty of an executor." And again in Wilson v. Moore, Mylne and Keen's Reports, Vol. I., p. 357: "If a " party dealing with an executor for the personal assets, "pays his money to the executor so that it may be " applied to the purposes of the will, he is not respon- "sible for the executor's misapplication of it; but if in "dealing with the executor he does in truth pay his " money for the private purposes of the executor, he is " equally a party to the breach of trust, whether he ap- " plies his money to the private debt [*25] of the execu- " tor or to the private trade of the executor. And now "let us ask, where is the mischief of holding parties "bound by such obvious rules of common justice and "honesty? The Privy Council gives its adhesion, to "these principles in the case of Oorser v. Oartwright, GREaORY V. ALOER. 539 persons title as are ex- ble doo- on such [ on the Bitor. If rities as meaning 4 Mad- personal the ex- id under it. Gen- J to the edge for iny part n by the ^ is held f an ex- a party 1 pledge dvanced te debt, insistent V^ilson V. 7: "If a assets, may be respon- ut if in pay his )r, he is p he ap- B execu- nd now parties ice and sion to twright, " VII. English and Irish Appeals, referring to the case " of Watkins v. Cheek, decided by Sir John Leach, who " said : So a mortgagee or purchaser from the executor " of a part of the pergonal property of the testator has " a right to infer that the executor is in the mortgage " or sale acting fairly in the execution of his duty, and " not bound to enquire as to the debts or legacies. But " if the nature of the transaction affords intrinsic evi- " deuce that the executor in th** mortgage or sale is not " acting in the execution of his duty, but is committing " a breach of trust, where the consideration of the raort- " gage or sale is a personal debt, due from the executor "to the mortgagee or purchaser, there such mortgagee, " or purchaser, being a party to the breach of trust, does " not hold this property discharged from the trusts, but "equally subject to payment of debts and legacies, as "it would have been in the hands of the executor." I think that in the case now before us the transaction af- fords intrinsic evidence of the defendant's participation in a breach of trust. The defendant does not attempt to excuse or explain it, and therefore I think his con- duct should be taken to be fraud within the meaning of the sections before referred to, and that judgment should be given for the plaintiff. Williams, J. — The defendant being the registered proprietor of the mortgage under the " Transfer of Land Act," his +''tle is absolute except in the case of fraud — Sec. 74. I take this to mean fraud to which the regis- tered proprietor is privy. In the present case the onus of establishing that the defendant was guilty of fraudu- lent conduct in taking the security of the mortgage from the administratrix of the deceased's estate lies clearly upon the plaintiff. The plaintiff, as I understand him, contends that he has satisfied this onus when he proves a case of constructive fraud against the defen- dant, and that it is not necessary for him to prove actual dishonest or fraudulent dealing on the part of the de- fendant. If, however, I have misunderstood the plain- tiff's contention, and he contends that he has established a case of actual fraudulent dealing on the part of the 640 TORItKNS CASES. defendant, tluMi I nm clearly of opinion that no such dis- honest or fraudulent dealing can bt» fairly inferred from the facts. Had the plaintiff been able to satisfy the primary Judge that the defendant took this security from the administratrix with actual notice or knowledge that in giving it she was committing a breach of trust, the learned Judge would, no doubt, in that event have found as a fact that the defendant acted fraudulently. No sucih fact has been found, amd the infelrence I draw from the evidence is that the defendant not only gave a substantial valuable consideration for the security, but that he took it perfectly honestly and in ignorance of any breach of trust on the part of the grantor of that security. It is, however, contended for the plaintiff, as I understand his contention, that it is unnecessary to prove actual notice or actual knowledge of a breach of trust, that to invalidate the defendant's title under the Act it is sufficient to prove constructive notice or know- ledge. This brings me to the consideration of that which is after all the short point involved in this case ; does such constructive notice or knowledge constitute "fraud" within the meaning of the Act ? If it does, then the de- fendant's title is invalidiated; if, on the other hand, actual notice or knowledge be required, as the plaintiff has failed to establish that fact, the defendant's title remains unimpeached. I think " fraud " in Sec. 74 means moral turpitude, actual dishonest dealing, and I do not think that it includes what is known as " constructive fraud." Sec. 140 of the Act, which provides that " no person shall be affected by notice actual or constructive of any trust, any rule of law or equity to the contrary notwithstand- ing ; and the knowledge that any such trust is in exist- ence shall not of itself be imputed- as fraud " amounts, in my opinion, almost to a statutory declaration that for the purpose of invalidating title under the Act " fraud " is not to include what is known and described as " con- structive fraud," and the observations of a'Beckett, J., in the case of Lake v. Jones, 15 V. L. R. at p. 733, appear to me to point in the same direction. The question to be asked in these cases is this, did the defendant pur- UREOOJtY V. ALGER. 541 chase honestly (bona fide) and for valuable considera* tion ? If he did, he acquires an indefeasible right. Ex- cept for the contention of constructive notice of a breach of trust, there appears to be no ground whatever for arriving at the conclusion that the defendant in this case did not deal honestly and for valuable consideration. He may have acted in ignorance of the law, he may have had unsound legal advice as to his position, and yet may have acted in perfect innocence of the fact that he was running any risli of making himself privy to a breach of trust. He was tendered by his counsel for cross- examination by the counsel for the plaintiff, who con- tented himself by asliing him a few questions evidently with the view of establishing constructive notice of a breacli of trust and that only. Nor do the facts estab- lish that the defendant designedly abstained from in- quiry for the purpose of avoiding knowledge. Had they done so it might have been contended that that wilful ignorance of this description is not distinguishable from actual knowledge, and therefore might constitute fraud within the meaning of the Act ; but having regard to the view I take of the evidence, it is unnecessary to give any opinion upon this point. For the reasons I have given,. I think that the plaintiff has failed to establish fraud sufficient to invalidate the defendant's title, and that judgment should be entered for the defendant wftk costs, including the costs of this reference. Hood, J. — In order that the plaintiff should be en- titled to judgment in this case, he has to establish that the mortgage given by Mrs. Wilson to Alger is invalid. But inaBmueh as the defendant is the registered proprietor of a mortgage under the " Transfer of Land Act," and in addition acquired that mortgage by a dealing with a regis- tered proprietor of a leasehold under the same Act, his. title [*26] is conclusive so far as this action i« concerned " except in the case of fraud." The object of the Legis- lature in passing the "Transfer of Land Act" was "to "give certainty to the title to estates in land and to " facilitate the proof thereof " (see the preamble to Act No. 301), and prima facie it appears " to have been the 542 TORRKSS CASES. " intention of tlie Act to confer the same Icind and degree "of security upon all persons who, transacting in reli- "auce on the register, acquire either proprietary rights " or mere interests in land in good faith and for valuable " c^msideration " (Gibbs v. Messer (1891 A. C. at p. 254). The object of the Act "Is to save persons dealing with " registered proprietors from the trouble and expense of "going behind the register in order to investigate the " history of their author's title and to satisfy themselves " of its validity. That end is accomplished by providing " that everyone who purchases in bona tide and for value "from a registered proprietor and enters his deed of "transfer or mortgage on the register, shall thereby ac- " quire an indefeasible right notwithstanding the in- " flrmity of his author's title " (lb.). This being the in tention of the Legislature, it can, in my opinion, only be carried out by holding that the fraud referred to in the Aet is actual moral depravity, some intentional wrong- doing or wilful violation of the common rules of right and wrong ; and I think that the Act ihas created a title indefeasible in honest hands, and has thereby prevented the numberless nice enquiries as to constructive notice and fraud that otherwise miglit often arise ; and that, therefore, the title of a registered proprietor is not to be impeached on surmise or suspicion, or conjecture, or by reason of any artificial rule created by the Courts. This being my view of the Act, the plaintiff cannot suc- ceed, for I fail to see anything in this case that would justify me in concluding that there has been any fraud by the defendant Alger, or that that defendant acted with mala fides, or had any fraudulent intent whatever. He parted with his property in consideration of getting his security, and I cannot think that any man would knowingly give away his own land in return for a security fraudulently obtained, and therefore valueless. If he had taken the security for a pre-existing debt, the inference might well have been different, and the cir- cumstances might then have required an explanation from him; but alll that was proved here was that a) man finds a childless widow in possession of her late bus- GREGORY V. ALOER. 543 [ degree in reli- f rights raluable p. 254). Dg with jenso of ;ate tlie tmselves povidiug or value deed of reby ac- the in- j the in only be to in the 1 wrong- of right »d a title revented ^e notice ,nd that, s not to cture, or Courts, mot sue- it would ay fraud at acted whatever, getting n would for a alueless. lebt, the the cir- ilanation it a) man ate hus- Q band's farm, and registered as proprietor of it, and he sells to her property, and in pursuance of the contract of sale takes from her a mortgage over that farm, to secure the payment of a part of the purchase money. It is really the same as though he had lent her £1,000 on the security of this mortgage, a thing no man would do if he knew that the mortgage was illegal and invalid. The fair conclusion from the facts, I think, is that Alger took this security in good faith, without any actual knowledge of any breach of trust, and without any idea that Mrs. Wilson was not acting properly on behalf of the estate. Indeed, having regard to the Administra- tion Act, and Sees. 113, 114, and 138 of the " Transfer of Land Act," it is quite possible that Alger mav have been advised by his lawyer (though I do not say ct>r- rectly advised) that Mrs. Wilson could deal with this property v ihe pleased ; and I am not able to arrive at a conclusion that a man is guilty of fraud when it is possible that he may only have been acting upou wrong advice given by his lawyer, and in perfect innocence. 1 have been largely influenced in the opinion I have formed on the facts by the mode in which the case was con- ducted at the trial. Mrs. Wilson was not called by either party, but the defendant Alger was tendered for cross- examination. He was, however, merely questioned in order to show constructive notice, and not a word was said to him to challenge his honesty or calling upon him to give any explanation of his conduct. No direct evi- dence of any sort was adduced to show that he had been guilty of any impropriety, and under these circum- stances We plaintiff has failed to satisfy me that the transaction attacked was in any way tainted with fraud. It was, however, strenuously urged for the plaintiff that, as ignorance of the law excuses no man, the defendant Alger could not escape, and that as he knew he was tak- ing an intestate's estate as security for dealing with an administratrix, he must be assumed to have known that he and she were acting illegally. This maxim, however, may easily be pushed too far, and it is not correct to say that for all intents and purposes a person must be taken !„ 'iij A44 TORRE NS CASES. to know the lo^al t'onHcquentes of hit) actH (The Queen V. Mayor of TowkeHbur.v, L. II. 3 (). li. at p. 03!), per Lush^ J.), and when fraud ig to be eHtablished it Ih kn«wledj?e that ha« to be proved and not if;noi"anee. The maxim referred to, therefore, does not apply to a case like the present, where the plaintilT has to prove actual dishon- esty. As to the case of Droop v. The Colonial Bank (6 V. L. R. Eq. 228), relied upon by the plaintiff, it seems to nie to be diHtinjj;uishable. The learned Judge there appears to have drawn the inference of fact which in this case I cannot draw, viz., that the defendants knew that they were doing wrong (see statement of facts, p. 232). A decision that any particular facts amount to fraud, so as to satisfy one particular tribunal dealing witli facts, cannot bind another like tribunal even though dealing with similar facts. If, however, that decision of the learned Judge in Droop's case was one of law purely, then to assist the plaintitT here it must be to the effect that constructive fraud is sufficient, and this, I think, would be erroneous, so that sitting in this Oourt I ought not to follow it. Moreover, I think that con- siderable doubt, to say the least of it, is thrown on that decision by the Appellate Court (7 V. L. R. Eq. 71), and for these reasons I do not feel bound to follow it even if in point. In my opinion the plaintiff is not entitled to any judgment, and I concur with Williams, J., in hold- ing that there should be judgment for the defendant with costs, including costs of this reference. Solicitors for the plaintiff :— Ellison 'e of vwd- vent t'ntati', ai>plieatiun hy — Caveat — Innoleent propiietur — lieifiiit ration. Where the liHsif^nee of an insolvent estate, having; lodged a caveat against any dealing with land forming part of such estate, makes an aiiplication to be reeiHtered as proprietor under Sec. 23*' of the " Trans- fer of Land Act, 18t)0," during th« existence of such caveat the registrar is hound to ignore all dealings by tlie insolvent proprietor v/ith land under the operation of the Act and to register the axsiunee. This was a summons calling upon the Registrar of Titles to substantiate and uphold the grounds of his refusal to register a transfer from the applicant Palnia- teer to one Noonan. It appeared from the facts disclosed upon the aflfl- davits that Palmateer became insolvent in April, 1878, and Cohen was appointed as assignee of his estate. At the time of his insolvency Palmateer was registered pro- prietor of one piece of land and was the licensee of an- other piece. In January, 1885, he became the Crown grantee of this other piece of land. On the 20th Decem- ber, 1889, he applied to the Court of Insolvency for his certificate of discharge, which was issued on the 4th January, 1890. On the 24th December, 1888, Cohen, the assignee, entered a caveat forbidding the registration of any person as proprietor of both pieces of land, and on the 2nd January, 1890, no"tice of this caveat was sent to Palmateer. On the 22nd February, 1890, Palmateer sold the whole of the land to Noonan, and on the same day lodged a transfer at the office of the Regisitrar of Titles for registration. No- tice of this itransfer being lodged was sent to Cohen on February 26th, 1890, and on the 12th March Cohen applied to be registered as proprietor in respect of the land. The regisrtrar refused to register the transfer H. TOR. CAB.— 85 546 TO K HENS CASES. . i fi-oin ]*alinat('(>r to Noonnn on the KronndH that, an the aHMignee had made his application to be re^atered dur- ini; the pendency of tlie caveat, he alone was entitled to be regiHtered, and the effect of thl» cavea*^^ was to effectu- ally prevent any dealing with the land by any other pei'Bon during tlu exiHtence of such caveat. The appli- cant Palinateer thereupon took out the present sum- mons. Topp for the Registrar of Titles : — The caveat issued by the assignee prevented any other person dealing with the land during [•7!)4] the pendency of tlie caveat. The assignee is empowered by Sec. 23(J of the " Transfer of Land Act, 1890," to apply to be registered as proprietor of the land held by the insolvent, and the caveat does not affect his own application. Then Sec. 237 gives an Insolvent proprietor power to deal with the land, but that power is specifically limited ; he can only become registered "until such application shall be made as aforesaid," that is, until the assignee has made an appli- cation under Sec. 236, as he has done in this case ; and the section goes on " and subject to the operation of any caveat lodged by such assignee." The operation of the caveat was to prevent any dealings with the land by any person. It follows clearly that if the application has been made by the assignee, and if the caveat is still in force, or was in force when the application was made,^ the insolvent cannot deal with the land, and his trans- fer cannot be registered. The registrar was bound to register the assignee, as the assignee had a statutory right under Sec. 236 to be registered. Isaacs (with him Irvine), for the applicant : — Sees. 236 and 237 are not intended to alter the law ; they are merely procedure sections. They certainly do not alter the law as regards "after-acquired" property by the insolvent. The portion of the land which was acquired by the insolvent subsequently to the sequestration of the estate does not vest in the assignee : Cohen v. Mit- chell.i 1 25 Q. B. D. 262. IN JtE PALMATEKR. 547 [WilliamB, J. — That cam* dooH not affect thin preMcnt cane, because here there wa« a dlHitlnct Intervention on the part of the asHi^nee when he lodged the caveat.] The lodpfing of the caveat in only a notice; it is not an Intervention witliin the meaning of the " InHoIvt-ncy Act." The caveat niijjlit have juHtifled the re^iHtrar in refuHin^ to register during its continuance, but It lias lapsed now, and the application by the assignee to b? registered does not keep it alive or continue its effect. It was incum- bent upon the caveator to take proce.Kllngs in Court during the existence of the caveat, and the registrar under those proceedings is directed by the Court to do or to refrain from doing certain things ; but it is only by virtue of the proceedings in the Court that the cavea- tor can derive any benefit. [*795] Counsel referred to the following cases : Patchell v. Maunsell ; 2 Madden v. Hetherington." Topp, in reply. Cur. adv. vult. Williams, J. — This was a summons to the Registrar of Titles, under Sec. 200 of the " Transfer of Land Act, 1890," calling upon him to substantiate and uphold the grounds of his refusal to register a transfer from Palma- teer to Noonan. The facts of the case, so far as they are important, are as follows : It appears that Palmateer was Crown grantee of a certain portion of the land in question ; he became Crown grantee of a certain portion in 1877 ; then in April, 1878, he sequestrated his estate, and Cohen was appointed official assignee of the estate. In Janu- ary, 1885, Palmateer became Crown grantee of the resi- due of the land, and therefore, in 1885, Palmateer was th? Crown grantee of the whole of the land, which formed the subject matter of this application. After this, Palmateer applied to the Court of Insolvency at Melbourne for a certificate of discharge under the " In- solvency Statute," and that application came on to be * 7 V. L. R. (Eq.) 6. »8V. R. (L.)68. 648 TOhHKlfS rAfiSS. heard on tin- 2(Hh DimmmhImm', \HHU ; It wjim o|hm)M«mI, Imt the applicntlnn wuh allowed, iiiid on the 4tli .liiniiai'v, IMIK), the certificate of dlHchar^te wan Ki'<")t*'<1 a caveat aftalnnt any dealing ^vlth the land, the Huhject matter of thiH application ; on the 2nd January, 1H!K), the reKUtrar Hent to Palniateer u coi>y of that caveat. On the 22nd February, IHJU), Palniateer H(..d the land for value bona fide to Noonan, the ]»reHent applicant, and on th«> Hanie day he executed a trauHfer of IiIh land to X(»onan, and on the 24th February that trauHfer was lodged for rejfin- tratlon at the office of the Ue^^lHtrar of TltleH. On the 2()th February, 181)0, two dayH after this trannfer was l(»dj;«tl, the i*ej?i8trar pave notice to Cohen, the nHHlfin^'c of the estate and the caveator, that Palinateer had ap- plied for registration of the transfer of land to Noonan. Th«' next step Is that, on the 12th March, IHIH), Cohen makes an application In writing, under Hec. '2'M\ of the ^' Transfer of Land Act, 1890," to be registered In respect of the land. Upon that state of ["TOO] facts the question has arisen whether the application by Pjilmateer to have the transfer from him to Noonan registered sliould not have been entertained by the registrar, and jiranted by him, Inasmuch as It was lodged before the application that was made by the official assignee under See. 2:i«». The contention for the registrar was this : He ad- mitted that the transfer from Palnmteer to Noonan was lodged for registi'ation before the assignee made his application, but he said that before that was done, be- fore the insolvent lodged tha^ transfer for registration, the assignee had entered a caveat against any dealing with tlie land ; that it had been lodged by the assignee for the protection of the insolvent estate, and that it was so lodged before the fourteen days from the giving of the notice, Avhlch I have referred to, had run out, namely, on the 12th March. The registrar therefore contended that while the caveat lodged' by the assignee was in force the assignee made this application under Sec. 236, and that then all dealing by the. insolvent with any por- tN MUrALMATMiiM. 549 tloii of liiH t'Htati* wjiH |iruhihiU'(l h.v tlie A«'t. Tlu* r«'j{lM- tnir Hupportfd tliiH contt'iitUm on the provlMioiiH of H«m-ii. '2'Ml and 2.'{7. HpciikinK tor ni.vHclf, I uni diMpoMod to think that the ponitlon thuM taken np by the rcKiHtrar wuH coiTcft. I ran draw no diMtinotion betwiM'n the two portionH (»f the hind. Tliere \h no donl>t tliat one portion waM acqnii'ed hv tlie inMolvent after ItiH inHolveiic.v and the otiier portion lM>fore oeipieMtration ; wiiether tlieH(> lH)tli veMted abHolutely in tlie aHHi^nee or not, witliout any furtiier motion on lil« part, it \h unneceitHary to de- tennine. If tlie re^intrar wuh ri|;) . in refuHin^ tlie ap- plication to re^iHter iih to tlie land acquired before He before the caveat, which had been lodged by him as assignee, expires, prohibits or stops Palmateer from dealing with this land in any way under the "Transfer of Land Sta- tute." I think that it does. The principal reascm for my decision is the construction I place upon Sec. 237. What- ever doubt may exist undm* Sec. 230, ►>ec. 237 clears away that doubt. That section pro\ide8 tliat " until such application shall be made as aforesaid," that is, under Sec. 236, "and subject to tlie operation of any caveat which may b? lodged by such assignee, dealings by an insolvent proprietor with land under the Act may be liW ToHHKy.S CASKS. r('KlMti>i'f«l, 1111(1 tli«*n>ii|M»ii hIiiiII not !>«> iilTt'fti'd h> tlio unirr ol McqiifHtnitUiii cltlu'r at law or In «M|iilt}'." Now I think that tlic philn nicanlnK of thfMt> woniM U tliat, If that applh'atlon U niail«> by th<> aMHi(;niM> iintlcr H«>r. 'SM\, and If It Ih made while tlif caveat which he \u\h lodued aH aMHlKn<'«' In In o|N>ratlon, then all dealliiK** !>>' the InMol- vent pi'opi'letor Mhall not Im> noticed l>,v the re^lHtrar. [ think all thoMe ntepM have bei>n made In the pieMent caMe. The mere fact of the axHi^nee niakiii); iin application would not be Hunicient In the event of the InMolvent luiv- int; lodged IiIh application for re^iHtiiition before ; but if the aHHi}(nee Iuim lodged IiIh caveat mh asMi((nee in re- M|M'ct of any p<»rtion of the InHolvent «'Mtate, ttiat Ix, in reHpi'ct of land under th(> Act, that prohibitH the re^lM- trar from re^lHterin^ tlie inMidvent'H application. If while the <'aveat Is in I'oi-ce tin- aHwij^nee pnneedM to make application under Hec. 'SMi, and does ho under Hhelter of till' caveat, then I think upon that Htale of ftwAn the rejJTlHtrar is bound by r«niHon of Sec. '2'M to ignore all dealings by Mie insolvent pr(»prietor under tlu> operation of tho Act. TheM«! were the facts in tills case, and there- fore I think the rc^istiar was ri^ht in refusing; to re;;is ter lliis transaction between I'almateer and N(H)nan. Webb, J. — In this case 1 concur in the judpuent of tlu* Court that the rej^lstrar has sustained and upheld his decision. The ins(dvent, at the tim(> of the setpies lrati tho lUTcMMiiry |>ii|H>rM, aiul n>- qiiln'd to b«> i't>KlMt<>i't'V(>iit IiIh olitiitiiliiK IiIn Ntatiitory ri^lit. TluM't' whm a cavtMit loat m not pro- Vi'iit the iTKlMtratloii of a doninu'iit tcndcn'd for u*\f\n- tnitloii by tlir caveator. Tlic aMMi^iKT I(m1k«>(( IiIm ravtwit on tlu» :'»i|i l)(>c(>inl><>r, 1HM», wlil« li <'av«'at pn»v«'nt«Ml anybiNly vUv (b'alhiK with the hind diirhiK itN p«>n<>r to Noonan waM hNlf^cd for ro^lMtration ; th(> aMHi^tncf'H ravrat prevented that beln^ repfintered ; and notice of tlie liMl^nn-'nt of that trannfer bein^ Kiven to tlie aHMi^^nee, he, dnrin^; tlie |H>ndenry of IiIm own eaveat, lodged an applieation 1o lie re);iMt<'red under H4>e. '2'M\, I tliiiiii lie liad then a Htatiitory ri^lit to be re^^iMtered. I waH at tli'Ht inrilned to think tlie wordH in Se<'. "I'M " mdijert to tlie operation of any eav- eat '* meant the ordinary operation under the antece- dent HectioiiH, and that the way to protect the caveiit waM to obtain the adjudication on tli«> matter by a com- petent <'(Mirt ; but, upon further coiiHideriuK the matter, I think theHe wordn mean that wliilHt tlu> caveat lodKed by an aHMiKuee is in (>xiHtence nothing elH(> can be don(> by any other perM(m. and no one «'lHe can be it'i^iwtered. And if the aHHi^iiee, while no one elue can be rej;lHtered because of hlH caveat, tend«'rH IiIm application in wrltin;^ to be rejjlHterod, he Iuih a Htatutory rifjlit to be rejfl"^*''*''*! which the oxlstence of IiIr own caveat do(»H not nflfect. Hod^cH, A. — In this case one ralmatei'r, an iuHolvent, lod>?ed on the 1\i\\ February a transfer to one Noonan, at the ottlce of the UeKiKtnir of TitleH, for rejjiHtration. That transfer covered land of which [*71M)] he was jiro- prietor before he was in**olv<»nt, as well as land of which he became proprietor substMjuent to his insol- vency. At the tim«» he lodged his transfer there was in force in the office a caveat lodged by the assignee. Whilst that caveat was in force, the assignee applied under the section which corresponds to Sec. 236 of the present Act to be registered, and the question is wliether under these circumstances the application by Palmateer can be granted. If it cannot be granted as to the land of 552 TORRE NH CASES. which he wan proprietor before he was insolvent, it can- not be granted at all, as the reyiistrar has no power to split the transaction into two. The "Insolvency Act" vests in the assijfnee of the insolvent absolutely all the property of which the insolvent is possessed at the time of his insolvency, and were it not for what I may call " Rejpstration Acts," all legal and equitable ownership would pass too. But by reason of certain legislation, the legal ownership in land under the " Transfer of Land Act " remains in him, but the beneficial ownership is gone, and we have to see (the beneficial ownership being out of the insolvent) liow he can convey what is left in him. He can only do this so far as power is given to him b.\ the "Transfer of Land Act." That power is given b\ Sec. 237, and that power is given '* until such application shall be made as aforesaid, and subject to the operation of any caveat which may be lodged by such assignee." In order to give to that section the con- struction contended for bj' the applicant, that section would have to be " until and after such application the insolvent may have his dealing registered, provided that such application be made before the application of the assignee is made." That would necessitate the inser- tion into the section of important words which are not there ; and unless he has power under Sec. 237 to trans- fer, and to require the registrar to register his dealing, no other section in the Act gives him any such power. It is only " umtil " such application that he can be registered, and after such application he cannot be registered. The section goes on : " And thereupon shall not be affected by the order of sequestration, either at law or in equity ;" but it is only " thereupon." Until the registration there is no legal title in the transferee from the insolvent. The only other way in which it was put by the counsel for the applicant, was that by reason of Sec. 55 dealings [*800] had to be registered in the order of application ; but, as was pointed out by Webb, J., during the argu- ment, Sec. 55 relates to the registration of " instruments,'^ whereas Sec. 230 relates to the registration of an "in- dividual " as a proprietor. I am not prepared to say t, it can- 3awer to cy Act" y all the the timo may call tvnership j^islatiou, uf Land Bi'ship is lip beinf? is left in given to power is ntil such ibject to ►dged by 1 the con- t section ition the ded that m of the lie inser- are not to trans- dealing, K>wer. It gistered, ed. The affected equity;" on there nsolvent. counsel dealings lication ; he argu- uments,'^ an "in- i to say IN RE PALMATEER. 553 that the same reasoning would not apply to after- acquired property, and that that section would not cover in the same way the whole subject matter of this applica- tion. I am inclined to think that it does so cover it, but it is not necessary to decide that qii'^8ti«m in the present application. Bolicitor for applicant : — Muntoti. Solicitor for the Registrar of Titles : — Guinness, Crown Solicitor. Supreme Couut, Victoria, 1891.] [14 A. L. T. 265. BETHUNE V. PORTEOUS. ** Transfer of Laml Ait, 1890 ' ' — Owner in aihrrsi' jtimi'ssion — Action bijy (itjninHt jwrmm holdinij paper title — Injunction. An injunction was nought by an owner in adverse posBeflsion whose title had matured to restrain the person holding the paper title to the lund from proceeding; with an application to have himself registered as proprietor under the " Transfer of Land Act, 1800." The plaintiff proceeded as by ordinary action, and did not invoke the special juris- diction (liven to the Court by section 34 of the " Transfer of Land Act, 1890." No objection to the plaintiff's mode of procedure was taken on the pleadinps nor at the trial, and the Court granted the injunction as sought. Held, on appeal, that the Court had jurisdiction to grant the injunction as sought, and that under the circumstances it was rightly •xercised. A person who has a title by adverse possession lias a right to restrain a person who holds the paper title from proceeding to obtain a certificate of title under the "Transfer of Land Act, 18 1890, and numbered 112,521, tlie Hciid J. It. Jounitniux moi'tgaged the Hunie land to one Bays Thoiuas Belson. By an indenture of raortpage dated the 25th March, 1887, registered in the ofllice of the Registrai'-Oeneral, No. 347, booli 337, made under tlie general law, the said J. B. Joumeaux, in consideration of £750, that day lent to him by the said A. M. Hmith, granted and conveyed to her and her heir« certain othei* lands then under the gen- eral law, but now comprised in certifloate of title, vol. 1,931, fol. 38G,112, to have and to hold the same unto and to the use of the said A. M. Smith, her heirs and assigns forever, subject to a proviso of redemption and re-conveyance. In 1887, during the continuance of the last mentioned mortgage, the said J. B. Jouraeaux, as the owner of the equity of redemption thereunder, applied to have the land comprised in the mortgage brought under the '' Transfer of Land Statute," and a certificate of title, vol. 1,931, fol. 38G,112, dated the 29th August, 1887, was issued to him, declaring him to be the pi-oprie- tor of an estate in fee simple, subject to the incum- brances notified thereunder, and at the foot of the said certificate the said mortgage was specified as the in- cumbrance referred to. By an instrument of mortgage under the " Transfer of Land Statute," registered in the register book by endorsement on the said certificate on the 15th May, 1890, and numbered 112,521, the said J. B. Joumeaux mortgaged to the said B. T. Belson the whole of the land comprised in the said certificate. In each of the said mortgages to A. M. Smith there was a declai'a- tion that the two mortgages should be one and the same security for one and the same sum, and that neither should be redeemed without the other, and that all pow- er's contained or implied therein might be exercised at one and the same time. On the 20th February, 1893, the said Ann Smith applied to the Commissioner of Titles for an order for foreclosure of the said two mort- gages, under Sec. 129 of the "Transfer of Land Act, 1890," and in support of her appli'cation lodged statu- tory declarations whidh proved to the satisfaction of the commissioner thalt default bad been made in payment 5G0 TORRE NS CASES. iff tlie principal and inttMM'wt nionoys himuiviI by Hu' Mnitl niurtgaKOH, and liad continued for Hix niontliH ; that tlic land coujprisod in tlu* two niortpi^cs had been olTered for «ale by ani'tion by a licenwd auctloneei', after due notice of Hale, and that tlu' hljjheHt bidding wan not milti- cieint ti> Hiatisfy the niortpij^e di»bt and expenses of sale, and that notice of intention to apply for a foreclosure order had been Herved upon the njoi*tpij?or, and also on the said IJ. T. Belson, the only other person interested in the said lands, and the application was accompanied by the certificate of the auctioneer who juit up the land for sale. By the said statutory declarations, the auc- tioneer's certificate and the newspapfi' advertisement of sale mentioned In such certificate, it appeared that the different lands comprised in the said two mortgages were put up as one lot and not offered separately. The Commissioner of Titles refused to make an order for foreclosure, on the grounds " Tliat the said mortgage of the 25th Marcli, 1887, In the offlce of the Registrar-Gen- eral, book 337, No. 347, of the land which Is now com- prised in the certificate of title, vol. 1,1)31, fol. 38(5,112, dated the 29th August, 1887, is a mortgage In fee with power of sale under the general law, and vested the legal estate In the mortgagee ; and the rights and reme- dies of the moi-tgagee, Including that of foreclosure and the powers of disposal of the said mortgaged premises, are under the general law and not under the * Transfer of Land Act, 1800.' " Tliat there is no provision in the said Act enabling such a mortgagee to foreclose under the procedure pre- scribed by the Act for foreclosure of mortgages under the Act, or enabling the commissioner to make the order applied for ; and Sec. 135 of the Act assumes that be- fore a mortgagee can become a registered proprietor on foreclosure of land under the Act, subject to a mortgage under the general law, he has flrsit foreclosed under the general law. " That as the mortgagee, undier the general law, can at any time validly dispose of, encumber, or otherwise deal with the land or mortgage by contracts or assur- in RE SMITH. 561 aiioe» undH' the j^fncral law, wltlumt the Hain«' bclnjf n*j,'istHn'ti or known to or a8C4M'tiiinal)U> bv the piiblU' or the ottire of titl«'H, to |HM'niit »nrh inortj^a^ec to for«'- closc by an ex parte application under the prm-edure of the statute wt>ul(l facilitate fraud and Imperil the as- Murance fund. " That the lands cimiprlstHi in the two separate uiort- g;i;:es should not have been ott'eired for ssjle in one and the same lot, and their beinj; so ottered rendered the at- tted sale invalid for the purpose of siipportin^ a fore- closure order under the provisions of the Act." Mr. A;;^ in support of the summons. Mr. (xuinness to oppose : — The (-ourt has no jurisdic- tion to deal with this case inasmuch as the Registrar of Titles cannot be called upon to substantiate his grounds tor refusing to graint th»' foreclosure order. [*87] There was no direction here by the Commissioner of Titles un- der See. 201) of the Act. A refusal to make a foreclosure order is discreticmary. [Madden, C.J. — That is surely not so. Where a section of an Act of Parliament creates a new jurisdiction " may " means " must."] One of these mortgages was a common law instrument, and applica- tions! under Sees. 12!) and 130 of the Act are confined to instruments registered under the Act. Counsel during his argument referred to Shaw v. Scott, 3 A. J. R. 16. Mr. Agg called on : — Both these mortgages provided that they should be one and the same security. The land having been brought under the Act the mortgage was also brought under the Act, because there is no power to bring an equity of redemption under the Act. The land was brought imder the Act subject to a mortgage, and therefore the commissioner must deal with it under the Act. It was not the equity of redemption that was brought under the Act, but the absolute fee simple of the land, and that being so there is no power to deal with the mortgage under the old law. [Holroyd, J. — If the mort- gagee's rightsi still exist undier the mortgage deed his right to foreclosure under the deed still exists and is not taken away by bringing the land under the Act.] The mortgages themselves provide that they shall be re- H.TOB.0A8.— 36 502 TOHHKNS CASUS. <]«H*iii('d t<»Kft1it*r, and thut th(>y hIiiiII Im* MtiMirity for tbe Mtime Hiini. Willi regard to tlu* s(>i'ond ubjectioii, the ap- plicntion waft nut ex parte but on notice, and an to the Iflfit objection the re^^iiitrar is clearly wron^. Counsel during the courfte of hifi arKunient cited Gr«'ig V. Watson, 7 V. L. R. (E.) 7}», and Romh v. Victorian I'er- manent Buildlnj? Hociety, 8 V. L. R. (E.) 254, at p. 272. Madden, C.J., deliveivd the Judjjrinent of the Tourt : — In this case we are of opinion, speakint; Kenerailly, that har- injf rej^mrd to the features of the case itself, the decision of the registrar was right. The view he has taken of the A«rt in relation to this land, which was mortgaged under the old Act, is, we think, correctly conceived. As to tlie argument advanced by Mr. Agg, tlmt this case is un ex- cepti'on to the general and settled rule t>ecause the par- ties agi'eed tlmt each instrument should be a security for the same sum, we do not think it is sustainable. The fal- lacy of that argument s«?ems to us to be that it does not observe that this is an application ft springing out of the exercise of the power of sale, but is based on the section of the Act anthwising fore<*Iosure, then in that ease the sale must be a sale such as is contemplated by the Act, and not snch a sale as has been agreed to be- tween the parties. We therefore think that this sum- mons must be dismissed with costs. Solicitors for the applicant : — Wisewoald, Oibbs & Wisewoulcl. Solicitor for the Registrar of Titles : — Guinness. y for the , the up- iH to the . e>! thi« VDlumo »t which th«* iwvbriti 3M«tii lit'tt! (itgoMttxl will im ftittti'l tf|iurUidi HKlNiJIXn LAND rXDEK THE ACT. {a) WHAT INIUHEHT IN LAND MAY Bi:: HEUIHTKKKD. y nrntponal In ntlitamintM. Th«* (Joiii-t j;e iHgniii^ :Mit «tf land n(»t bron^lit under th«> Aori'ai \\vit'- ditain<'ntM whirli <-onKiHt of uwvi' (MiMonnMitM art diHtin^niMluMl from artuiil cMtati'H in the land. In IV tin* "Trannfei' ol i.and Statute," Ex parte C'uunlnjfliain, :{ V. L. U. (L.) 1!M) 138 TrusUr in fn; nut hininff itoirrr of xtilr, mai/ mob' applivafion. Section 17 (1) of tlie "Transfer of Land Stat- ute " (Vietoriu, No. :W\), providen tliat tlie per- Hou elainiinK to be the owner of tlie fee Himple, either at law or in equity, may apply to briujf the land under the Art. Held, that truH- tee» in fee of land, not having jwwer of wale, are " ownern " within the meaning of Sec. 17(1), and entitled to hrin^f land under the opertition of the Act, In re the " Transfer of I^and Statute " and In re application of Menu & (Irice, V2 V. L. K. 'Mi\ 282 Application on hchiJf of paper title ninif hv ir- Htrained hjf on'nrr in mh'iVHV ptmHvxsinn- An owner in adverne ]K)88(«s«iion, whose pos8«'S- ijory title had niatun'd, Hou^^lit to refttrain the person holding the paper title to the land from proc<^ed1njj with an application to have him- self registered as proprietor under the *' Trans- fer of Land Act, 1800" (Victoria). Tlie plain- tiff did not invoke the special jurisdiction piven to the Court by that Act, but proceeded ■lf 566 DlHEi>T OF CASES. iiH by ordiuury action. No objection wu8 taken ou the pleadin^H, nor at the trial, to the plain- tiff's mode of procedure, and the Court granted the injunction um Hought. Held, on appeal, that the Court had jurindiction to grant the in- junction a»Hought, and that under the circuni- Htances it wa8 rightly exercised. Betlnine v. IN>rteou8, 14 A. L. T. 2r>5 55:t Jurif<({ivtion of Vonrtu to interfere. H., who had entered a» a tenant to K., after her decease, intestate, without next of kin, set up title by possession and made applica- tion to bring the land under the " Transfer of Land Statute" (Victoria). A caveat was lodged on behalf of the Crown, and it wa» held that a Court of Equity had jurisdiction to en- tertain an infommtion by the Attorney-Gen- eral for a declaration of the title of the Crown by escheat, although the information showed a legal title in the Crown and no special ground of equitable jurisdiction. The injunction asked was granted, restraining the Registrar of Titles from dealing with the land. Attornev-Gteneral V. Hoggin, 8 V. L. B. (E.) Ill 13 1 (/.) DUTIES OF REGISTRAR OR C0MMIS8I0NEH. Has a discretion to refuse to reijister applicant. The true construction of Sees. 19 and 21 of the "Transfer of Land Act, 1874" (West Au- stralia), is that the commissioner, though he lias intimated' to an applicant for registration that his title is fairly made out, is not bound to register the title merely by reason of the issue of the prescribed notices and the non- appearance of a caveat. Such notices may pro- duce information, and the commissioner, in consequence thereof, or of reconsideration, has a discretion to refuse to register. The remedy of the applicant is, under Sec. 120, to require the commission^er to set forth his reasons, and then summon him before the Court to maintain his case. Manning v. The Commissioner of Titles, L. R 15 App. Gas. Ids 21 To investigate all questions, though he may think one objection fatal When in the investigation of title upon an ap- plication to bring land under the " Transfer of DIGEST OF CASKS. 567 55:« 134 21 Land Statute " (Victoria, No. :U)l), one objection appeiu'ti whieh the eouuiiiiMiouei' eonsidei'M fatal, .vet all queHtions ariuinj; on the title Hhould be considered; tlie applicant ought not to be couii)elled to take out several MummonM>H . on one title. In re the " Transfer of Land Sta- tute," Ex iMirte Bowman, 7 V. L. R. (L.) 314. . To postpone application if appeal pemVuui- The Kegidtrar of Titles is not justified in refus- ing to bring land under the *' Transfer of Land Statute" (Victoria, No. 301), solely on the ground of an interpretation by the Commis- sioner of Titles of a devise in a will, in opposi- tion to a decision of the Supreme Court on the same devise ; and that, although his interpreta- tion is supported by a decision of the Supreme (k»urt of a neighbouring colony upon the same devise- His course, if an appeal depends, is to postpone the determination of thie applica- tion until the question has been finally decided on appeal. But, as he is the gimrdian of the assurance fund, the Court is slow: to certify " that there was no probable ground for sucli refusal," so as to deprive him of Tiis costs of a summons under Sec. 135. In re the "Trans- fer of Land Statute," Ex parte Bowman, 7 May take imreased imlemnity for vneertain title. A trustee, having power to sell or mortgage, executed a mortgage containing a power of sale in case of default. The purchaser from the mortgagee applied to bring the land under the " Transfer of Land Statute" (Victoria, No. 301). The Commissioner of Titles refused to register the land. T'pon the case stated by the com- missioner, it appeared that, while at law the validity of the sale could not be impeached, the probability of the sale being supported in ♦Niuity depended on whether the land was sold at an undervabie. or whether there was any irregularity that had not been disclosed. Held, that the commissioner must register the purchaser, but could protect the assurance fund, under Sec. 32 of the Act. from the risk of uncertain titl-^ by such additional indem- nity as in his discretion was nocessarv. In 383 3SS 668 DIGEST OF CASES. i ■ i the matter of the " Transfer of Land IfJtatute," and In the matter of Charles Halter, '2 V. R. (L.) 113 Ii4;{ (t) CAVEATS FORBIDDING THE BRINGING OF LAND UNDER THE ACT. ('actator in pouhvhhUhi not entitled to order re- Htraininff riffi,strar. Where the cav+^ator is in possession and bases his title on adverse pos-session, he cannot get an order, under Sec. 24 of the "Transfer of Land Statute" (Victoria, No. 301), restraining th<^ registrar from bringing the land under the Act. The caveator may remain in possession and successfully resist an action of ejectment. In re the *'Transfei" of Land S+atute," Ex parte Brown, 5 V. L. R. (L.) 5 Overruled by Bethune v, Porteous, 14 A. L. T. 265 Onuff prohandi aii hrturen caveator in poanession and applicant. The applicant showed a complete documen- tary title, and proved that he was in posses- sion within twenty yeai"s next before his ap- plication. Held, as between the applicant and the caveators in possession, that the onus was on the caveators to shew that the applicant's title had been defeated, i.e., that his entries on the land when vacant within the twenty years had been ineffective, in other words, had not been made animo possid'endi, or had been made after his title had been extinguished. Soiling V. Broughton, App. Cas. (1893) 556... . Caveator H remedies. The Court has jurisdiction, undier Sec. 24, of the *' Transfer of Land Statute " (Victoria, No. :i01), to make an order restraining the Regis- trar of Titles from bringing land under the Act, although no suit or action has been in- stituted, where no other reniedy is open to the caveator. Ex parte Gunn, 3 V. L. R. (L.) 36, In Victoria, it was lield that a Judge in Cham- , bers had no jurisdiction upon summons to make an order under the "Ti-ansfer of Land Statute" (No. 301), Sec. 24, to restrain the 381 553 72 425 DIGEST OF CASES. 5«9 n'jfistrar from bnnp:in^ land nnd'T the Art. Tlie caveator must l>rin;j; an arti{. . Jdi/me of caveat. Keetion l!4 of the " Tiansfer «)f Land Statute " (Victoria, No. 301), provides that a caveat shall be deemed to have lapsed unless the »aveator, within the time limited for that purjiose, shall have taken proceedinj^s in a urt of com- petent jurisdiction to establish his title. Held, that this provision does not create a new jutnsdiction in Courts of Equity, but diivcts such pr(H'eedinjiH as would be approi)riate, apart from the Act, to establish the rijihts of the caveator, and makes notice of such pro- ceedings when served upon til's rejristrar a stop to rejjistration. Hodgson v. Hunter, 8 V. R. (E.) 61 Mau he woind hif applicaufx vitmhivt. Section 23 of the Real Property Act of New South Wales (IM; Vic. No. !)), provided that after the lexpiiiition of three months from the lodjiin;; of the cave*at, it shall be deemed to liave lapsed, unless in the meantime proceed- injrs bl? taken by the caveator to establish his rijfhts. TTpon such lai»se the applicant is en- titled to ask the Court for an order reraov- inp the raveat. The maxim. Qui libet ])otest renunciare juH ])ro se introducto, applies ; thterefore, it is competent for the applicant to waive the lapse of the ca\'^at under Sec. 23, and such waiver may be by conduct. After sucli waiver, it is too late to apply for an order to remove the caveat on the jrrouTid that pro- ceedings were not taken within the time pre- scribed In a case where morg than thr»*e months had elapsed since the lodging of tlu' caveat, the applicant stated a case under the statuti' for the opinion of the Court, and ob- tained an order for the caveator to state and file a case in her behalf, which she did. The applicant did not further proceed with his application, but moved to have \\ii^ caveat s-^t aside upon the ffround that the caveat ha«i lapsed. Held, that the applicant had waived ;Uil 42.-> 333 203 570 DIGEST OF CASES. the benefit of Hec. 23, by wdiich the ea\>*at htid hipsed. For the steps taken by the applii-ant aMMUiued and proceeded on the aHsuiuption of the continued lexistence of the caveat. It is a question of fact in each case whether there has been a waiver or not. Wilson v. Mcintosh, « R. (February, 1894) 429 78 AfUr lapse, no jurisdiction in Court to revive. After a caveat has lapsed, the Court has no pow^r to make an order, under Sec. 24 of the " Transfer of Land Statute " (Victoria, No. 301), restraining: the registrar from bringin); the land under the Act. In re the "Transfer of Land Statute" and caveat of Hannah Sum- mers, Ex parte Aylwin, 4 V. L. R. (L.) IIG. . . . 403 Jinnoriuff caveat. A caveat was lodjjed, under Sec. 22 of the "Transfer of Land Statute" (Victoria, No. 301), forbidding the bringing of the land under < the statute. A rule nisi to remove the caveat was not properly served upon thie caveator by leaving it at the address named in the caveat at a time when no person was present at the address to receive it. If the affidavit of ser- vice shows that mode of service, no counter affidavit is required denying knowledge of the service. An admission by the caveator that the rule nisi reached his hands two davs before it was made absolute dioes not cure the defect. (There is a provisi-on in Sec. 116 of the Act No. 301, which relates only to caveats lodged in respect of land ali^eady under the statute). In re the caveat of J. B. Slack, and the application of W. H. Winder, 1 V. L. R. (L.) 319 248 CERTIFICATES OF TITLE. (a) CANCELLATION OF CERTIFICATES. An applicant to bring land under the Victorian Statute (No. 301) obtained a certificate of title by representing that a person in posisesmon was merely a trespasser. After becoming registered proprietor, the applicant brought an action of ejectment against the alleged trespasser, who established' in his defence a title to the same lands by possession. He DlUEifT OF CASEH. r>7i 78 403 248 then applied to the ('ourt, and It wa» orderni that the praprietor deliver up the eertitlnite to 1»" nineelled. In re the "Transfer of Land Statute," Ex parte Bi»bv, « V. L. B. (L.), 417. . 47ti) W'liere a certittcate wa» impeached for fraud, Held, the f'ourt has no jurisdiction to order the cancellation of a certificate of title. Tli"* l)ro])er mode of cirin;; relief from the inequit- able effect of such a certificate is by ordering tile rejristered pi'oprietor to execute a transfer. [But Sec. 189 of the "Transfer of Land Htitute" (Victoria, No. 801), was not referred to. and perhaps overlooked]. Gunn v. Hairvev, 1 V. L. B. (E.) Ill 204 Form of onUr made Section 180 of the " Transfer of Land Statute " (Victoria, No. 801), provides that upon recovery of land from the registered proprietor by any prooeedinjr at law or in equity, it shall be lawful for the Court or a Judpe to direct the registrar to cancel any certificate of title, and to substitute such certificate as the circum- stances of the case may require. But where the owner of land, who had be^en deprived of it by the defendant having brought it under the Act, and haWng obtained a certificate of title in his own name, obtained judgment, the Court did not ord'er the Begistrar of Titles to cancel such certificate, for lie was not made a party to the action ; but ordered the defendant to give up possession of the land, with mesne profits for the time he had been in occupation ; also to deliver up the duplicate certificate of title and to execute a transfer to the plaintiff. The defendant was not allowed the expense of bringing the land under the Act. Ogle v. Aedy, 18 V. I^ B. 4G1 285 (fc) RECTIFYING CERTIFICATES AND REGISTKIl. Section 132 of the " Transfer of Land Statute " (Victoria, No. 301), provides for the caneelling or correcting of certificates issued in error. ** What is the meaning of error ? Not, in my opinion, a mistake of fact only, but also an error in law." Per Stawell, C.J., In re ** Transfer of Land Statute," Ex parte Bond, 6 V. L. B. (L.) 458 257 672 DJOEST OF CASKS. The nam»* of a re^isterod own»'r having bcfu i'<*iiiovt*d in favour of a firtitiout* and non- existing transfert'e ixti tlu' leBult of a forged transfer, a niortya^re purjHirtinjf to lunv been executed by such transferee was subsequently l>ut U[)on the register by bona tide mortgajiees. In a suit by the true owner against tlie regis- trar, the mortgagees and tlie per])etrator of the fraud, held, (a) that the plaintitt's name must be restored to the register; (b) that the mort- gage was invalid, and did not in favour of the mortgagees constitute an incumbrance on the plaintiffs title; though under the Act (No. 301, \MctM'ia) it would hav^' that effect in favour of a bona fide registered tninsferee there(»f. Oibbs V. Messer, A. ( \ (181)1) 248 1 ic) RECALLING CERTIFICATE. I'pon application for miindamus to the regis- trar to give his reasons for ivf using to call in a certificate of title, and to call in the said certificate of land under the Victorian Statute (No. JHOl), the applieation was refused on the ground that Sec. 132 of the Act provided for calling in certificates in case it shall apf>ear to the satisfaction of the registrar that any cer- tificate was issued in error, and it was not proved in this case that it so appeai'ed to tlie satisfaction of the registrar. Re O'C/onnell and the " Transfer of Land Statute," * bound by the provisions of the " Transfer of Land Statute " (Victoria, No. :i(H). Attornev-(teneral v. Ooldsbrou^h and otiiera, 1o V. L. K. mx Xot vonrlHsirr 2 See infra, sub-title " Easements and re^istra- tion thereof." ConvJusire if caHcment .specified. Where a rijjht of way is specified in a certifi- cate of title [issued under the "Tninsfer of Land Statute" (Vi<'toria, No. :?01),] of the servient tenement, the correctness of the cer- tificate cannot be impugned in an action of tresymss. Jones v. Park, 5 V. L. R. (L.) 1G7. . Certificate in cunchimre eriileuee of title. An uncertificated insolvent became lessee of an allotment under the " Land Act, 1865 " (Victoria). His official assignee was registered as the proprietor under the " Transfer of Land Statute" (No. 301), but was not registered under the "Land Act." The assignee trans ferred to B., who registered this transfer under both Acts, and procured a '-ertificate of title. In ejectment by the registered transferee against the insolvent, where plaintiflf proved these facts, held, that if plaintiff had relied on his certificate of title, he might have suc- ceeded; but as he went outside the certificate, and thereby showed he had not the legal estate, he must be nonsuited. Miller v. Moresey, 2 V. R (L.) 39 402 13 421 430 i ;. 574 DUiEST OF CASKS. In a fiii'tluT pnM*<'edliiK in eje<'tnit*ut l)ftw«M'n t)H' Hiinif pai-tU'M, the plaiutilT, who liad (»btain«'d from tlu* reKUtrar a n«*w «vrtilh*ate in Hulmtitntion for the one produefd in Hip fonnvr action, put in tin* new eertiticiite iind pive no other e\idenee. t'pou motion for non- Huit, lield, that the certiHcate wa« roncliixlve evidence thait the jH^i'son nunied in it is pro- prietor. It is not necesHar.v to prove tlie pre- liminarv steps taken to i>rocnre the certitlcate. Miller v. Moresey, 2 V. R. (L.) IJKi 4n« // I'i'lU'il ON iiH nmHuHuc, ('frtifivate miiMt hr inunlnrnl. K<'ctiou 47 of the "Land Transfer Statute" (Victoria, No. 'M)\), provides that the certitlcate of title shall be conclusive evidence that the rej;ist'*red proprietor is seised or possessed of the estate or interests therein described. Where a <'ertiticate of title has been obtained, the ])r<»prietor must produce it in a suit in which he would rely ujjon it as i'onclusive. The Shamro4-k Companv (registered) v. Farns- worth, 2 V. L. R. (E.) 105 17<> Diipliratr rrrtifii-atv /.s in'inm farir vrUUiur of tifjr. A dupliwite certificate of title under the Victorian Statute (No. :{01) is admissible as prima facie evidence of title in ejectment. (Sed. «iu. whether the words ''every certitlcate of title issued," in Sec. 47, do not include the duplicate orijfinal certifioate issued to the pro- prietor, and which therefore becomes under the section conclusive evidence that the i)erson named in such certifi<'ate as the proprietor is seised or possessed of the estate or interest therein described). Wilkinson v. Brown, 1 V. R. (L.) 86 433 EiTccptionfi to vonelu^ihrneffs — TruHU- Sections 41) and 50 of the " Ti-ansfer of Land Statute" (No. 301, Victoria), ppotett a pur- ♦•haser from the registered proprietor against incumbrances and trusts, but does not absolve him from the obligation of performing an agree- ment into which he has entered, or deprive tlie CJourt of the power to enforce such perform- ance. So where (I. sold to C. a piece of land, and the agreement was too uncertain in the description of the land to have been enforced. Dl'iEST OF t'AUk'ii. 575 but C pui«l tilt* puii-huH«' moiit'y, fiitcri'd into poMetMiuii and luude improvfuieutH; <}. uftfr- wui'dH Hold to K. thf balunce of tlit' luud, l)iit tlie tran»ft*i* to S. incliidon them in the old law. The only Inquiry Is as to the fact of possession, and niot as to its rature. When the wronjr man is in and the riijht man is out of possession, the possession is " adverse " within the meaning of the Act. Per Stephen, J. To raise a presumption of "ripht« acquired " so as to invalidate a certifi- cate of litle, there muf^ have been a possession incompatible with a freehold in the claimant, and the acts of ownership must amount to evidence of such a possession. Staunton v. Urown, I V. L. R. (L.) 150 213 'Leases. Section 40 of the Victorian Statute (No. 301) provides that the land included in the certi- DIUKST OF CAUKS 577 tiniti' of title hIiiiII Ih> (If'iiifd Hulijcrt, wliciv tllH |MhM«'HMioll ix not iMlVt'l'MC, to tll«' illtfl't'Mt of iin.V tiMMIIlt of tllC IhImI, ll(»twitllMttlll«liM»( the H1IIII4* iiiii.v not Ih' Hpfriull.v notitifd an au enriiiuhraiK'i' on kiuIi rfrtitirat«'. "Truant" 1nrliiH fvcry ttMiant who is in at'ttial or- rnpation and hoIdH under Home laudloid; every interexl in the hind of hucIi a tenant which ;;i'o\VM out of, and in not diMMeveialde from. hiH ri^lit to continue in oceupation aM a tenant, \h proteeteil Ity tite terniK of tliin ))rov{Hion apiiiiHt tlie elaiin of a proprietor under a eertitieate «»f title. Saiulliui'Mt Mu- tmil Permanent rnvextiuent l^uildin^' Society V. r.isHint', 15 V. L. H. :\'2\)', 11 A. L. T. «Il». .. . Ti'iiniitH ritflits. Section 41» ;«f liie "Tninsfer of Land Statute" (Victoria. \o. :101). provideH tliat a certificate of title Hliall he deemed to he xuhject to any ri^htH HuhxiHtin^ under any adverne poH«en- 8ion, and aixo wlieu the posMeKHitui {h not ad- verts* to the interest of any tenant of tlie land. *'The Keconci exceptional provision relaten Ui the interewt of any tenant of the la?«d — that is all interests, not merely the tenant IntereRtH." "Tlie 41>tli section saves all the tenaint's rights. oMseKsion as a ten- ant at will does not come under the protec- tion of the provision for adverse possession, but would have. aiiiouK his other occupier's rijrlits, a ri^rht to nAy on ]>osses»ion under the " Statute of Mmitations." ^folesworth, J., in Robertson v. Keith, 1 V. K. (E.) 11 Truant at iritl. Tenancy at will is an interest within See. 4!) of the "Transfer of Ljind Statute" (Victoria, No. 301); therefore, where 1\. entered into posses- sion of land under a contract made with a ])er- son fiom whom those seeking to eject him themselves derived title, it was held, that be- fore they could maintain eie<'tment against R thev must demand ixxscisiou froTu him. : Colonial Bank v. Roach, 1 V. R. (L.) Ifi.") H. TOR. CAB.— 37 m\ 306 374 !' S78 vi'iKyr of CAsics. lifl'irt of forijrd traiiMftr. A ti'aiMf«T«'«' lUM'tl not lnv»'HtlKnt»' Mm* title o( the r»*j{iHt«»rt'«l owunr, for li»' Iw not afffcted by ItM inttniiltlt'H. Milt he niiiMt iiHr«Ttulu at hit* own peril the « NiMt«'nc-«* and ith'ntlty of hlM trannfenn', the antlit»i'lty of any aK:«*»t to art for him. and tlii> validity of tli«' th't'd iindtT wliicli Kiicli ay:»'nt rJainiM to a»"t. "TIioho who dnil," nayn liord WatHoii, "not witli tlif rejfiKtt'red propi'iftor, htit witli a former wlio ii»«'h IdH nanic, d(» not tI'an^4a<■t on tli«> faith of ttie roKlM- t»*r; and tlu*y rannot l>y I'cffiHtration of a foi'^i'd deed aeqiiii** a valid title in their own pf'iK«)n, althoii};]) tiie fart of their belnjf i'»"jfiH- tered will enahlf tliein to pas» a valid rljfht to third pnrtieH who |>in'<)iase from tliem in nooil faitii and for oneroim eonMid<>ratiou." GihbM V. MeHHer. A. C. ( IMJH), i;4S. 2.V) Crrtifioafr fniinhihntlft nhtainnl—Iiiffht tl.it( ' . - tum), the practice is wrong, 'i 4lce should not take upon itself to pi one class '^f interest* and not another. >.w v. Campb I, 10 V. L. R. (E.) \m The Court irill rradihf intrrfere hi inj.inrtimi. "The immense power w>iich the 'Transfer of Land Statute' (Victoria, No. 301), gives to a proprietor of completely barring clear equl- 20 57 bluBsT or CAAMO. 671) tk'H i»rt'H«-iitH, 1 thIiiU, a rcaHoii fiM* <'ourtM of Kqiilty rnullly lnt»»rf«'rlinf by Injunttloii." INm Mt>l«'H\vortli, .1.. In DuvIh niiil iiiIhtm v. WVki'y iiixi olIuTM. :i V. It. tK.M Pnnhirthnt of nrtificuir onlnril. A iii(M'tKaK«> (IimmI |ii'ovUI*m1 that tli«' (■iititltatr of title uf tilt' It iwl waM at all tliiK'H iluriiiK the oontininiiin> of the iiioitpip- to rt'inain in the (MiHtiNly of the iiiortKauefs. The iiiortK>iK<>i' trnn»feiTevl the land to <'., who applied to thi- iuort^;aK<'eM to pi'(Nlu«-«> thf reilltlrait*' of tlth' for the purpoxe of having; IiIh trannfer \'v)i\* tered thereon. Tin* inoitjrajfeeH iffuned «»n the ground that the mortKiiuof uaM in default, and felled on tht> piovino in lh«> nioit((a((e. rpon HunnnonH undfr See. x\\ of the "Trann f«T of U\\\i\ Htatnte. isno" (Vletorla. No. U40i, held, that See. l.'U of the Act overrode the covenant in the niortpiKe, and. in the nhMonce of BiK>cinl oiroMtnutaneeH, the moi"tjra}fe«»H must produce the eertitlonte of title. In re the " TrnniMfer of I^nid Aet, 1H!M)," and In re Armitngp, Ex parte wVndrewH, 17 V'. L. R. 17. . a50 30S TRANSFERS. (a) GENERALLY. Whu may require refjistration of a trnnnfer. The "Tranafer of Land Statute" (Victoria, No. 301), contains no general provision a« to who shall bo entitled, in the c^ise of a tranfi- fer by act of party of land brought under the operation of the Act, to apply for the reglstra tion of a transfer. Until the transfer is regis- tered, the estate and interest, with all appur- tenant rights, powers and privileges, remain in the registered proprietor, Sec. 58. Si)ecial provisions are made authorising devisees and others claiming a power to appoint on a trans- mission, Sec. 52; persons entitled in remainr der, reversion or otherwise on a transmission, Sec. 54 ; and the assignee of an insolvent. Sec. 107, to make application in writing to be regis- tered as the proprietor. It is only to these persons that the power to " make applications 580 Did EST OF CASES. in writing to be rfgistered a« proprietor" is given l»v express woihIs, and it is to tlieni only tlmt tliis form of expression is applied in the Aet. Kxtt'pt in these tases, and in the addi- tional tase of a sale nnder a writ of 11. fa. is- sued out of the Supreme Court, See. KMi, aip- ]»licati<>n for registration must be umde by the registered proprietor. In re "Ti-ansfer of Tjjuid Statute," Ex parte Davies and Ininan, 11 V. L. R. 7S0 273 {b) PROVISIONS AS TO FRAUD. ^'oiftimil rniixhJfi'ratiou not hiuhjv of fraud. "The nominal consideration of £5 I con- sider immaterial. It was introduced, I be- lieve, according to an old habit of convey- ancers in voluntary transactions, and is not, I think, a badge of fraud." Molesworth, J., in Crow v. Campbell, 10 V. L. R. (E.) isr., 1!)4. 87 E,rninph of fraud. "I would instance as to what might be deemed fraud under the 'Transfer of Land Statute' (Victoria, No. 301), collusion between pro- prietor, vendor, and vendee, to defeat an equit- able interest, or means taken by the vendee to induce a i)er8on having equitable interests not to enforce hie rights or lod'ge ai caveat." Per !Moleswoi'th, J., in Robertson v. Keith, 1 V. R. (E.) 11 366 Jhfiuition of fraud. " Fraud, ir* Sec. 74 of the * Transfer of Land Act, 1800, means moral turpitude, actual dis- honest dealing, and does not include what is known as * constructive fraud.' " Per Williams, J. " The fraud referred to in the * Transfer of Tjand Act, 1890,' is actual moral depravity, some intentional wrong-doing, a wilful viola- tion of the common rules of right and wrong, and not constructive fraud." Per Hood, J. Gregory et al. v. Alger et al., 15 A. L. T. 22. . .. 533 ''Fraud" means "fraud" on the part of cither transferor or transferee. Section 50 of the "Victorian Land Transfer Statute" (No. 301) commences with the words " except in the case of fraud," and as ■■(; * DIGEST OF CASES. 581 that seftiou is to a ifrt*at extout restrictive of the rights of i>er«on» at law and in equity, it should be construed strictly, and the excep- tion liberally. The word " fraud " tliere means fraud on the part of either party, and not necessarily of both. Tt was not intended that where fraud was committed by the pur- chaser himself he should be protected. Sta- well, CJ., in Ohomley v. Firebrace, 5 V. L. R. (E.) 57 J)K (c) NOTICE. ^tatuk protects afittinnt const ntvt ire, not actual notice. The "Land Transfer Statutv'," Victoria (No. 301), protects against all constrn, ive notices, but does not protect a purchaser h.iving actual notice before the conti-act is made that the proprietor has acquired his title by fraud. The (Colonial Bank of Australasia v. Pie, fi V. L. R. (E.) 180 122 Notice a purchaser for value. The Registrar of Titles V. Paterson, L. R. 2 App. Cas. 110 58 Prinf-iplv of notice not aholinhed. The "Transfer of Land Statute" (Victoria, No. 301), was not intended to abolish the J linciple of notice. Notice of an equitable iutere.st in another, given to a purchaser of land under the Act at any time before he has completed his title by getting his transfer reiristertKl, is sufficient to entitle the person in ' v'l om the equitable interest is to prevent the issue of a clear certificate of title to such pur- ehasfr. Cowell v. Shicey, l.S V. L. R. 80 355 'Limitation of principle of notice. Section 50 of the " Transfer of Land Statute " (Victoria, No. 301), protects from notice, actual 682 DIOEST OF CASES. i or constructive, the purchaser from the repls- tei«ed proprietor, except in case of fraud. The exception is not to be construed to extend to the cast* of a transferee with constructive linowledge of the frauds of the transferor in acquiring title. So where A. borrowed money of B., and B. procured A. to execute a transfei* pretending it was onl.v a security, and had himself registered as proprietor, and then mortgaged to C, and the premises were in the occupation of a weekly tenant of A. through- out; held, that inquiry of the tenant would have disclosed that the tenant was paying rent to A., and there was therefore constructive notice to C of A.'s claims, still the section protected C. (^omley v. Firebrace, 5 V. L. R. (E.) 57, distinguished. Cullen v. Thompson, 5 V. L. R. (E.) 147 (d) TRANSFEREES UNDER SHERIFF'S SALES. A purchase at sheriff's sale of the interest of a registered proprietor, tliough protected by transfer, held void as against the plaintiff, a prior purchaser from the registered proprietor, on the ground of legal fraud; but good as against the registered pi-oprietor's right and interest on un]>aid purchase money. Brew v. Jones, 2 V. R. (E) 20 Purcha-svr from xhi-iff ami unreqistered cquitahh mortff'jffir. Under the lor.th Section of the " Transfer of Land Statute '' (Victoria, No. :i01). a purchaser of land does not be<'ome the transferee, nor is he deemed the proprietor thereof until the transfer has been received and entered by the registrar in the register book. The sale under the writ itself does not affect the right of any purchaser for valuable consideration (includ- ing an equitable mortgagee) whose right has accrued before service of the copy of the writ upon the registrar, even though such pur- chaser had actual or constructive notice of the lodgment of the writ for execution. Apiinst such a purchaser the purchaser from the sheriff acquires no right until he gets his transfer completed by registration and be- comes the transferee and proprietor; and even 322 37C DIUEST OF CASEH. 583 then thore may be cases in wliieh his title to the land may be impugned, and he may be ordered to reconvey to an earlier purchaser, of whose charge or encumbrance he has had notice. The purchaser from the sheriff, in fact, only buys a charge upon the judgment debtor's interest in the land, and that charge is clearly subject to an earlit-r etpiitable or legal charge. It is by virtue of the language of the statute that the moment the transfer from the sheriff to the innnhaser has been entered on the register, thn purchaser becomes the transferee, and is to bt* deemed the pro- prietor thereof. National Bank of Australasia V. Morrow, 13 V. L. R. 2 Pnrchastr from *tht riff and ptirvhanrr irmi judfj- nun t iUhtor — /*riorit h w. The Victorian Statute (No. IWl, s. 100), jiro- vides that no mere registration of an execu- tion shall bind or charge the land, but that i the registrar, on being served with a copy of I the writ of lieri facias, accompanied by a statement specif.Aing the land to be affected • thereby, shall, after marking upon such copy the time of such service, enter the same in the register book; and when a sale of the land is made under the writ, the registrar, on receiv- 1 ing a transfer thereof, shall enter it in the ' register book, whereupon the purchaser from the sheriff be«H>mes the registered proprietor. [ Until the registrar is so served with copy of writ and statement, even tliough the writ be [ actually lodged for execution and th^ pur- (•haser from the judgment debtor have actual or constructive notice of the writ, smh pur- ' chaser for value, if his transfer be duly regis- tei'ed, is entitled to a certificate of title free from any claim by the judgment creditor. The Registrar of Titles t. Paterson, L. R. 2 App. Cas. 110 Traimfcree from jmlfitnent drhtor after cxplrtf of or'nfhial irrii of fieri facvix iVietoria). The judgment creditor must proceed within the time limited by the statute by actual sale ' of the land; nor will the issue of an alias writ and service of a copy before expiry of the i original writ uj)on the registrar, with a state- :m\ 58 584 lUUKST OF CAaks. 1' iiK'm (»f tlu' rtjiine laiulH to bt* att'iM-tcd tlieivhy i\» by th«* oi'i};iual writ, ivndtM- Invalid u ti*aii»if«'r by tin* jiidniiit'iit debtor to a piir- rliaser for value with iiH>tlre, artual or ('«ni- Htrmtlve. that the judgment dt'bt reniaiiiM unwitistled. Tlie RepHtrar of Titles v. Paterson, L. R. 2 A pp. (^.as. 110 W Tranf0" (Victoria), the rt'gistrar is bound to ignore all dealings by tl»e insolvent proprietor. In re Palmateer, i(J V. L. R. 703 .^45 Officinl fisMifimr not a imrchuHcr for value. The effect of Sec. 10(> of the " Transfer of Ljind Statute" (Victoria, No. 301), is to avoid the sale under the writ of fieri facias as against a subsequent purchaser for value from th;^ execution debtor, unless the transfer be left for registry within three months from the date of the service of a copy of the writ upon the registrar. The sale is not avoided as agninst the execution d<^btor himself. An i official assignee* of an execution debtor is not a purchaser for vain,' within the meaning of ' DIOEST OF CASES. 5H5 the 8f(!tlon. The Tnlted Handln-Haiul ('(». v. Xatioiial Hank [*-' V. I.. K. (E.> iMMiJ. followed. (iile» V. Ive8»ei', 3 V. L. K. (E.) :i.s :V2i) |{E(aSTUATl(>N, EFFECT OF. EffvH of instnuHciit Itfforv ntfiittration. StM'tioii 41' of the "Vietorum S^tatnte" (No. :MH) enaets that no instrument until rej^istered shall be effectual to pasn any estate or interest in any land und'er the Act, or to render such land liable to any niortpi^e or charjfe. While the i)articular effect of re^stration of an instrument is the conveyinjj, }»assin}; or con- ferring; estates, interests and ri};hts in the land, thi* statute d(M*» not negative or withhold from the instrument before repistnition any other effect, rnrepistwed instruments are eff'ctual as contra«*ts between the parties to th-m, or as securities sprin^finj; from the con- tra«'t from the date of si^nin};: and acts done by the parties under and in accordance v.ith the <*(mtra;*t!* before rejnstr ition may, as bf'tween the parties, be valid and effectual. Mathieswer, shall be deemed and taken to be the dul;>' re;nstered proprietor thereof. So in a case where a power of attorney did not authorize the execution by the attorney of a creation of easement under the Act over land of which the principal was registered proprietor; but the attorney had executed sucl! instrument, and the same had 47S 20 586 D/at'ST OF CASES. Ikh'U refjistercd ; held, that the K^'i^ntee, in the absence of fruud, became the registered pro- prietor of tlie enseinent of riijht of way men- tioned in tlie iuHtrument, and entitled, by virtue of Sees. 3G and 41> of the Act, to exercise the rights of a registered proprietor. For inasmuch as the instrument purported to transfer and grant an incorpor*»al lieredita- ment, it was an " instrument purporting to nflfect land " within the meaning of Sec. 30. Magor V. Donald, 13 V. L. R. 255 2G6 REGISTRAR. Rrqifit mr haa jmlicial iunctiuns. The registrar is not merely to register in- struments, whether valid or invalid. The "Transfer of Land Statute" (Victoria, No. 301), imposes on the registrar the duty of examining into their vali'dity, and of deciding whether an applicant is entitled to registra- tion, and from his decision there lies an appeal to the Supreme Court, and thence to the Privy Council. In re "Transfer of Land Statute," Ex i)ai*te Bond, V. L. R. (L.) 458 257 ifffuml to m/ister transfer — Mamlnmuf*. B. was registered jjroprietor of leaseholds; C. lodged a caveat forbidding registration of any change of proprietorship. The caveat lapsed. A. presented for registration a transfer of the lease from B. C com- menced an action for specific perfoinnance against B. and the Registrar of Titles. The registrar refused to register the transfer on the ground that he was made a party to the action by C. A. made application for manda- mus to compel the registrar to register the transfer. Held, that Ihe ground of refusal was not sufficient, and the rule was made absolute, with costs against the registrar. In re "Transfer of L«ind Act, 1800," Ex parte Clark, 17 V. L. R. 82 118 Did EST or CASES. 587 Ktgistrcr to tfirv (jroundH of rrfuMuh Section 1^5 of the " Tinnsfer of I^nnd Statu t.* • (\ ictoria, No. 'M)\), pro\ide» that upim th«' lefuHal of the repiutrar to rejj;iHter, the ap«i»li- eant, if diftsatisfled, nia.v HUiiinion tlie registrar to set forth in writing under hiH handi* the KfoundH of his refufuil, that in, his reasons in point of law or in point of faet. In re the "Transfer of Land Statute,'' Ex parte Hond, 6 V. L. R. (L.) 458 257 Applkation to restrain must hv on noticr. An applieation to restrain the Registrar of Titles from r^'pisterinjf a transfer of land under the Victorian Statute (No. aoi) should be made upon notice, and not ex parte. In re the '* Transfer of Lsind Statute,'' Ex parte Peck, 10 V. L. R. 32S 525 Registration of writ of fi. fa. Quaere — Whether the Rejjistrar of Titles can enter on the rejjister book a copy of a tieri facias lodjred under Sec. KMJ of the "TrauHfer of Land Statute " ( Victoria, No. :{(U|, when the estate or intercHt of the execution debtor nowhei'e a]tpearH in that book, as where it is merely an erpiity of redemption under a deed of defeasance executed by a mortgagee who has taken an absolute transfer (»f the land as a security. Watson v. The Roval Permanent Building Society, 14 V. L. R. 2H;j 185 CAVEATS AOAINST DEALING iiY PROPRIETOR. RE(iISTERED AHsiffnef of insolnnt ma if hvtijv i-arvat. The assignee of an insolvent may lodg? a caveat in the Office of Titles against dealings with the land under the "Ti-ansfer of Land • Act, 1890" (Victoria), by the insolvent pro- prietor, and the assignee m ly himself become registered as the proprietor. In re Palmateer, 1« V. L. R. 7!)^ 545 sm tun EST vt' i'ASk's. ytxt of k'ni of hinotir, ho rUjht to loiluv vavnit. Tilt* lunatic wat* rcHidfiit in Knt^laml. llin coniniitttH* Iiad |M>wt'r, »'<»nfiMr«*(l by tin* Cinii't in Knuland. »•> wll llu- propfi'ty of th«* liinatlr in Virtoila. Tlie next of liln of tiie Innatir lodpMl a caveat to [u-event any Jealinj^H in respect of tlie land. Tlie attoraey under power of llie conunlttee applied by* way ot motion to have tlie caveat removed. Held, that the uttoiney under power wan entitieits upon which the order was drawn up, that the order had been made within fourteen days after notice to the caveator. Held, that the order was bad and must be set aside. In the matter of the " Transfer of Land Statute " and In the matter of Henry Georjfe Wise, 2 V. R. (L.) Ill KIS 434 JJKJtJyj' OF CA.SL.S. 58i> PninrirnuiH to irmorc i'lirrnf. On till iipiilinitioii to i'('iiinv(> a nivftit, it is not n(M*('HKai'.v that the xninnuMiM Mlionld !»«* hI^ikmI hy the .Indue in (,'hanil»er«; it in HntWrient if it Im' Hi^iu'd bv liiM aHMM-iatc. It iM not ncceMmii'.v I hat an atfidavit in Hnii]M>rt of Mnrli Mninnions Hliould !»<> tiltMl npon the iHMnc of tlii> MiiniinonH, and it Hlioiild Im> tiled within a reaMoiiable time liefoie the retnrn of tlu* Hunnnonn. hi re Wall, Kx parte Peaison, U V. L. K. 4H4 :173 tfumiiHii'ft nmnnil of rarcat hff i'oint. Sert'iou 117 of the Vietoiian Statute (No. :MH) jM'ovideK that the Sitprenie t.'onrt or a Jtulue, l»efoie whom application is made to liave u raiveat removtHl, may, npon i>roof that the caveator Iuih been Hiimnunu'd, make hucIi order, ex parte or (jtluTwise, iih to hucIi Court or Jiid'ue may Heein tit. On application undt*r this we«ti(ui by the iej«;i»te!'ed proprietor to have a «"aveat removal, tlie t'onrt, where there itt a contlict of tcHtimony, will not* order tlie caveat to be reniov«Hl, but may order that sucli caveat Khali Im* removed unlcHt* steps are taken to establisii the caveator's title within a certain time. In the matter of the "Tran.«*fer of Land Statute,*' Ex parte Vincent, 12 V. L. R. rm\ 470 RUfhU of immfistfrcd tratinfrrce ns to removing i rarrat. An unrejjistercd transferee is not entitled, nnder Sec. 117 of the "Transfer of Land Statute" (Vict(Mia, \o. .Wl), to be notitled of a caveat by the rej;istrar, or to summon the ca\eator to show cause why the caveat shotild not be icnioved. Tlu' poliF t'ASk•.'^. • I'; , for th«' r»'ii»ovnl of a raveat, ou the irrouml tlip.t k luti'i'fei'iHl with >4oni»» future lnt»'iul»»il 4lt>alip::> with \\w lau«l, will not Im* <*nttMtaliKHl by the Court when It Ib admitted or nhown that the caveat lian lieen hxljjeu In aerordan* »' with the Art, or l»y a |H*rHon entltltnl to hHljfe It. In Hiu'h a eaMe the re>flHtereer course to adopt Is to obtain a summons from a Jud)?*' in <'hambers, return able before the full Court, calling? upon the cnve.itor to show cause why the caveat should not l>e removed. A Judpe in Chambers has no jurisdiction to entertain the matter, and the rule "no jurisdiction no costs" prevails. Ex parte Ooldsworthy, 8 A. L. T. 181 510 EASEMENTS. Creation of, hif registrition. li\Tiere a power of attorney did not authorize the execution by the attorney of a creation of easement under the Act over lands of which the principal was registered proprietor, but the attorney had executed such instrument, and the same had been registered : Held, that as the instrument purported to transfer or grant an incorporeal hereditament, it was an " instru- ment purporting to affect land" within the meaning of Sec. 36 of the " Transfer of Land bio KMT OF CASKS, !i9\ r.20 440 510 Ht.it lit*'* (VIrioilii, No. :w\), iiikI tlu'iffoiv tht» };riUit of fniiKi, )H>nini(> I lie rc|{UtHi'(Ml |>ro|>i'i»'tor of tin* rljjlit of way iiumi tioiicd III tlif liiHtniiii«>rit, aud (>utitl«>d tn ••x»mtIh»' till' rlirhtM of a ron\nUnvd iiroprit'tor. Mttjror \. Uonaia, \:\ V. L. H. L'oo • *•••*••• 2U0 IhimiiuntH appurtenant. Ill briti^'iiitf iiiiil»'i' tli(> "TraiiMftT of ImiuI Ktatiii*'" tVlrfoiln. No. :i01|, land witli an (•aKMiiifiit n|»|Mi!t«>nnnt, '^Iim applirant cannot hav«» Riirli ^^^\* MiH-nt liiH.itod in IiIh cfi'titli'att' of title ay:ainMf tlif will of tli»* proprietor of tlie servient tenement, tlu)U};li the latter \n nlready ivyinteifd under tlii» Act. In re the "TranHf«T «»f I^inil Htatut»V Kx parte BeinMel, 6 V. L. H. (L.) yA 333 (This derlKlon huH never been connlden**! bind injrin Victoria, and in ijrnored b.v the Office of Tltle». The rijiht to enter eaMt-inentM on the certittoati' of either the dominant or servient tenement wan tacitly recoffiiized In the later case of Jone» v. Park, 5 V. L. R. (L.) 107, note by a'Beckett). Eauements not appurtenant' The owner of certain land (granted by deed to an adjoining; owner a right of way over a certain portion of his land. Upon application to register the grantor as proprietor under the "Transfer of Land Ktatute" (Victoria, No. 301), the grantee Imlged a caveat In respect of his right of way. Held, that only easements appurtenant to the land registered can be entered upon the register; and that this was not such an easement, but a right of way in gross. In re "Transfer of Land Statute," Ex parte Johnson, In re Whyte, 5 W. W. & a'B. (L.) 5*5 343 Easements over land not under the 'Act can not be registered (Tirtoria). It is not allowable to place on the regisiter or in the certiflcate of title any easement over, upon, or affecting land' which has not been brought under the Act. Sec. 64 of the " Vic- torian Land Transfer Statute " (No. 301), pre- scribes that when any easement is created I. fi»2 DIUEHT OF iJAHEH. Ifi OM'V Of iiiioft or ntr«'<'tlnM; any liitiJ uiidt'r tlif o|»«M-atioii of lli«* An, u iiifiiioiial Im lu Im* «'Utfi'i'<| ii|M»ii tlif roliiim riMiNtitiiliuK (lie titl<' to Miirli land, Of, lu otiicf wonU, a Wlol Im to hi* niaiii* In lli«* K'giHtcf on tin* title to the Mcfvifiit tcntMncui. Tlifit* Im no pfo- vImIoii fof mIiowIiik on tli«* titlr of tlit* dominant ti'iK-nit'ni any i'aM«MH<'nt whlrli may Im> a|>|iiif- t«'nant to it, tliouKJi tin* iihc of the wtud "land" will, l»y viftiu* of tin* intefpfrtation ilauMr, rafiy with it any ••am'inrnt wliirli ItH owncf i-an Im* laovt'd h\ ••vUl nn', «'Xt«'fnal to the i»*KlHt«'f, to ln' ••ntltlt'd t»> enjoy lu !•♦'• H|MMt of IiIh o\vn«'fHlii|i of HUi-li land. In fc the "Tfannfef of Land Statute," Kx pafle t'uu- niuKliaiu. :t V. L. H. \l,.) V.M (To n'luedy thlH defect, pointed out to exint in Art No. :(ni, Act No. (tit) wuN paHNed, fof the elTect of which vide Ex pafte IteiitMel, Ti V. L. K. (L.) o.t). fjht of waif, itot Hit out in viitifivtitvH of lifh: Wlu'fe the ceftiflcatcK of title iKsued to adjoin- jn^ lU'opfietofH weie Hileut an to any fi^lit of waiy, it waM contended tliat rlie lepil etl't'cl of the ceftiHcateM waM to extin^uiKh the ri^;ht of way. Held, jinifmiiiK jud;;ment of Supreme <'ouft of Victoria do \'. L. U. r»l."i|, untenaltle. For Sec. 4!» of No. MW (TrauKfer ot Uind Sta- tute) pr4»vi timt he is «<» (>ntitled; hut it voidd not relieve the ser- vient of its liability. Tn like manner, the omis- sion of the repistrnr to state on the certifioat** 13!:$ niUF.sT Ut' riSHS. 6fW t^niiitt'il to llic tiwiifi* of tlif iloiiiiiiiiiit tt'iif iiH'iit ilif fxiMtcn«i> of tli«' riKlit of wii.v • liiiiiH'tt Im iii» Itiir to thtit tliiiiM. .liiiiifM V. HtfVfiixoii, App. Tim. \\sm) HW 13 LK.XHKH. Trnniil tit iriH — Hhrtnti iif. WIm'ii H. Iitui «'iitfi'«il Into itoMMvMHioii «»f land, nn«l*M- a contnirt uuulv with a imthou from whom those HtM'kin^ to <'J«'rt him tht'mxi'lvt'N . pro- teetM the intcicHt of any t«»nant who Im in actual oeru|»atio!i and hoIdH under nome land lord at the time the land Ih brought iindei* th«' Htatute. "Tenant " Im widtT in meaning;, there- fore, tluin " h-iHrtee." Sandhurnt IVrmanenf TnvoHtnit'nt nulUI1n)r Society v. n1 fnf firms (if hit h'UHC. A mining leatte under the '^ Mining Statute, 1Ht{r» " (VIrtorla. No. 201). for Hfteen yeart* and re^^Htered under the "Trannfer of Land Sta- tute" (Vietoria. No. 'Mni contained the follow- ing provlKo': " If there Mhall be a breach of covenant nni the part of the lewMee) thene pre- ' Kentu Khali be voidable at the will of the ttov- ernorlnConncil: and in cawe the (lovernorin- Tonncil nhall declare tliene preHents void, the term nhall ceaw and the declaration be con- clunlve evhh'nce of breach in alH'onrtH.*' Held, that th«» lessee exe«'utlnjj such a leasH was bound by the pwviso and' e«top|)ed from ob- jpotinp to it. and that his tJ'rm was effectually determined by such declaration without notice to him, or evid of ISJHM. for a term of y<'ar». contained a covenant that tlie Ifswee would not underlet or part with tlie posses- »lon of tin* pieniises without tirst obtainiu}; the lessor's consent in writing', and if thl^ les- see failed to perform the covenant that lessor mi^ht enter jind expel Ifsseos and all other occupiers. Lessee did sublet without con- sent of lessor: the subtenants entered into possession, but refused to pay the rent on the pround that, as tlie consent of tlie lessor had not been obtained, the sublease could not be registered. The lessee l)rou}rht action on the covenant in the sublease and in the alterna- tive for us<» and occupation. Held, that the lessee could recover for use and oitcupation at the r.ate of the rent reserved. Munro & Bail- lieu V. Adams, 17 V. L. R. 70:^ ImcIics of trnunf in anHrrtinij riffht. It is not rej'Ojjnized as a principle of law that mere neglijience can deprive a tenant of his statutory rijjht to tlie protection of his inter- eat apainst a repstered pr(»prietor. Sandhurst Permanent Investment Building Society v. Oissinj;, 15 V. L. R. 329 *. . . . 440 4r.fi MORTGAGES. Att< station. Tlie manager of a bank, a justice of the pe.are, is not incapacitated from actin;r as attestiu}? witness to the execution of a niortfiajje, uiMh'r the " Transfer of Land Statute " (Victoria, No. 301), to his bank. The Bank of Victoria v. Mc- Michael, 8 V. L. R. (L.) 11 Ohlii/ation to partiniJar nser of hind. ()., the registered proprietor of a parcel of land under the " Transfer of Land Statute " (Victoria, No. 301). sold the same to the muni- cipality; a term of the agreement for sale was that the land sold sliould at all times there- after be maintained and used as a site for Hiunicipal cliambers and offices, to" be built to 400 nj:t:.sT or vashh. oi)o o. 440 466 406 of n- lor Ito till' satisfartiini of llu* v»Miiluf. Semblc (Molt's- worth, J.), thill i!h' ohlipition to constantly use th<' hind di'stiilM'd in th»* ••(Mtitiratc in ii jKirticuhir niainu'r may b** set onl in thf ci'i-- tlftiate as an inriinihrance. Tlu» Mayoi' and Cor. of IWunswick v. Di'wson, '. V. L. K. (K.)2 17!) Mortverdraft, without the bank h.ivinj; notice i)f any claim to the land by any person other than A. The transfer was not refjistered. In an action by the rejfistered proprietor for the delivery up of the ct'rtiti«'ate and transfer, held, that the bank was not en- titled to hold the land as a security as a};ainst the registered proprietor. Plunipton v. Plump- ton, 11 V. L. R. T>i?t 495 Equitdhk m 'niffaffc A person depositing as a security a oertiflcjite of title, under the " Victorian Statute " (No. 301l, in the name of a third party, gives to the depositee only such right as the depositor has against the registered pi-oprietor. Plumpton V. Plumpton. 1 1 V. L. R. 73:i 495 Certificate, eiint only, and that when the princiital ad- vam"* the ]M»Ii<'y and intention of tlie Le^islatnre, wat* not ille^'al. WatHou v. The Koval Permanent lluildin^r Society, 14 V. U R. 2K\ IS." Mnitijinjc hif udminiHtrator. Tile administratrix nn)rty;siy;ed land, piirt of tlie estate of wliich slie wa** rejristertHl |>i , '. tor under tlie " Victorian Transfer of Land Act, 1S!M)," to \\. to secure the ]Hiyment of £1.000 o\\\n^i by her to R At the time R took rhe niorty;ajfe lie knew that she was adminis- tratrix, and that the land mortj;an:ed formed part of the intestate's estate. Held (a'Heckett dissenting), tliat H.'s title was not ac- quired by framl under the meaning of th« "Transf«M' of Land Act. 1SJ>0." and thereftireir could not be defeateejM)sit and Mortj;a;;e Tiank v. LoimI, 1 V. L. R. (L.) .'n 3S8 }forftiatjor'M fnmnt- Tli<* pos.session of a tenant of a mortjtajjor under a tenancy created prior to the mort- jjajre is not adverse to the title of the mort- iraiLT-'M'. The interest of tlie h^see is that of a tenant where possession is not adverse; he is not oblfged to attorn voluntarily to the mort- luar.sT OF visHs. m mHH't', mid eauiiot In* t'jiMttMl witluMit di'inand of |M)HMeMHion HuttlciiMit to put an cud to tlu' tti incy. IVuautH' ri^htti aiiv saved uudt*r S«m-. 49 of the "TiausfiM- of I^iud Statute" (Vi<- toiia, No. :MH). The Colonial Hank of Austral- asia V. KabbaKf, •'. V. L. K. (L.> U\'2 41 H Tlie mortjjajfee, the niortjfane bein;r under the "Transfer of Land Statute" (Victoria, No. :{01), hat* no action *\\m luortpjp'e against a tenant of the nuutpipn- let in suhwMiuently to the niortpi^e. Nor can tln' inortpijiee, be- fore he has entered into iK)HHesHion. maintain an action for use and occupation ajjainst a per son let into jwssession by the iuort}{ap)r after the date of the mortjjape. Louch v. Hall, 5 V. ij. R. (,1^>) 1 •) 1 4^ti Mortffafior'n riffht tit i/uirt cnioifiin nf. Section H.'i of the " Transfer of Land Statute " (Viitoria, No. :i01i. confers on a tirst mort jrajfee under the statute, in addition to the rijrhts and powers jjiven to him by the sec- ti(ms >>4 to in, the same rijjhis and remedies to wliicli lie would have been entitled as owner of the legal estate under the old law, coupltHl only with a rijrht in the nmrtgajree of quiet enjoyment until default. Unless this right amoimts to a redeinis«> to the mortgagor, the mortgagor is only a tenant at sufferance, and may be ejected by the mortgagee without any demand haAing lieen made for payment. The Commercial Bank v. Breen, 15 V. L. R. 072. . 407 If no time is fixed for y>ayment of tlie mort- g.Tge money in a mortgage under the '* Trans fer of Land Statute" (Victoria. No. aoi). there is no redemise, and the mortgagor has only a right of action for breach of his right to quiet enjoyment. Tlu' Commercial Bank v. Breon, 15 V. L. R. .■)72 407 Ri'lht.s of mnrtfiafior, hair crtiiiffnishnh Where a mortgage is nude under and subject t(» the provisions of the Act No. 801. the only ways in which the mortgagee could extinguisli the rights of the mortgagor were (aHore- closure under 'M Vic. No. .*^17 (Victoria), beinir the amendcil provisi(m as to foreclosure under the Act; and (b) by a .sale under the H4th, 85tb nos />/W'v'.sr OF CASEH. and H7th wclioiiiH of the Art. TIm* S4lh si'ctiou ])r(»vi(h>H tliat if tlu* iiu>rl};a^(tr sliall iiutkf de- fault in payment «»1' tli • iM-incipal huui oi* inttu'- cHt, and snrii d« fault shall )>«• conlinutMl for (»nt» month, oi for suf such sale, the estati* and inter- est of the m«Mt]j;ay;«U' at the time of the rejfis- tratlmi of the mortj;a;;e shall pass to and vest in tlu» puri'haser discliarj^ed from liability on account of tli > moi-tuajre. Natiiuial Hank of Australasia v. The I'nited Iland-inHand, etc., Co., L. R. 4 A. (\ .'lOl Mortifdf/rr niKst ftnuhar irrtifiivtr to iilluir trmis- fcr f'i In- trijish r^il. MortKap-<'s held the certificate of title to tin* Tuort^ajied land und«*r a proviso in the mort- \ii\\H^. rpon transfer by the morty:a^or they refused to produce the certiticatt* of titl- for the transfiM* to be endorsetl thiereon. Held, under Sec. i;U of the "Transfer of Land Act. 1800" (Victoria, No. 11 4!H, that. althou^'li there had been default accordin;: to tlie tenns of the m<)rt;;a;;e. that the certificate m\i>t be ])ro- du<'ed. In the malter of tlie '-Transfer of Land Act. ISMO." and In re Armita%'e, Ex parte Andrews. 17 V. L. R. 77 Ihfrct ill iKtticr to untrtt/infor. It is the rijrht of the mort};aj:or. under Sees. S4 and s."i of the " Victcuian Land Transfer Statule" (No. '.'M) to have a notice of deniand served u|»oii liim after he is in defatdt, as a ne«vssai-y preliminary to a sale by the mort- };aj;ee und<'r the statutwer. rpon an .•i]>plication tn comijlete tl;e title of the pur- chaser by rejri strati on under the N7th sec- tion, an objection (ui tli/ y:round of the failure to serve a jaoper notir«' of demand can be 33 i^o.-j I) Hi EST OF ('{SEH. rm liikt'ii )ty tin- ri'i^'istiiir. rainplM'lI' v. r^niuni'r- rini ISaiik of S,v(liu',v, i»f«'nrd to. National llauk of AuHtialiiHia v. Tlu* I'liittMl Maud-iu- Hand, etc., Co., L. K. 4 A. ('. 'MW :VA I)( fault mitl nutirf of xalr hvforr rnjintrathn. A mortjfaj;*' in tlu» form providtil bv tin* ^'i(•- toHan Statute (No. 'MM) coiitsuiu'd a rove- iiaiit that, ill t-aHe default should Im* made in pavnimt of any of the moneys expressed, or inttMidt'd to be thereby sec'Ui't»d, and suih de- fault shtmld be continued for the space of three daiys, then all the moneys intended \o be thereby secured should immediately biMome payable and recoverable, and it should be law- ful for Mie mortj;aj;ee to s«M've on the inort- ;isjjj(>r Ihe notice provided by the Act: and on such default in payment 4'ontinuinp; for the further space of three days after the service of such notice, it should be lawful for the mortjrajiee to exercise the power of sale men- tioned in Sec. So <»f the Act. The mortpi^re wa« not repstered for some tim«' after tlie execution, and in. the meantime default in payment was made and continued, and a de- mand of payment and notice of int"nti(m to exercise tlie jjower of sale were jjiven. Held, that the demand of payment and notice of sab* before rejristration of the mortjrajje wais valid and effectual to .nithorize a sale before re<;is- tration. Mathieson v. The Mercantile, Fin- ance and Ajreiicv Companv, Limited, 17 V. L. R 271 ■ 47S Mortijnqi' pai/ahlr on thmnnd — Xofirr unrHHUiii to xalr hff ntortfftificv. A mortjrav;". in the foiin of the 12th schedule to the " Land Transfer Statute " (Victoria, No. .*U)1), fixed no lime for tlie repayment of th»' sum secure', but contained a powci- of sale, which the mortjram'e was to be at libertv to exercise if the movt}:ay:or should make default in payment after service ujton hiuj of a de- mand in writin}!. Sec. Si of No. :\{)l pi»»vides tbat if the iiHutjra.jjror shall make default in payment of me T)rin<'ipal sum or interest, and such default shall be continued for one month, or for sucli other period of time as may by the mortjraiie be expressly tlxtMl, the inortuai;*''* «00 UIUKST Of VAHKH. m may him-vc on tlw iiKirt^apM* iKttlcc in writing to piiv til)' money (iwin^ on tlu* mort^a^c. Sec s'l of tli«' Manic Htatntc pi'ovhb'H that if huiIi default Kliall continue foi* one montli aifte;* file Herviee of Hueli notice, ov fol* hu«*Ii <»tlicr fiKM'iod an may in hucIi mort^a^e be for tliat ))uri>oHe fixe was nwide, that} the mort- };a};(»r, aifter »uch demand and def.ult, wan ' entlth'd to notice*, under Sec. .S4. a» a necensary preliminary to a »ale under S m*. S.">. National Hank of AuHtralasia v. The T'nited Hand-in- Hand. etc.. Co., L. K. 4 A. C '.VM 'SufUr. A notice by unrejiiHtered letter, if it be nhown to have reached tin* mortjrauor. it» Hufflcient comjdiance with Sec. S4 of the "Transfer of Land Statute" (Victoria. Xo. aOl). Tlie pro- vision in that section :ih to repistration of the letter i« a precaution to be »hown where the mortpajjee is unable to prove actual re- ceipt of the letter bv the mortpifior. McDon- ald V. Rowe, 3 V. R" (E.) 143 Prftprictftr dewJ — Xntier of ihminhh Section S4 «»f the "Transfer of Land Statute" (Victoria. No. 301), provides that the n(>ti<*e required to 1h» served on the mortgajjor may be fflven by siMidlng the same throujfh th" postottire by a rej^istered letter, directed to the tlieii proprietor of tlie land at his address appearing: in the re^Mstcr book. Held, that al- though tlx' projMietoi' be dead, that notice is sufHcientl>- given if sent through the jwst- oftii'c by a registered letter addressed to »uch registered ]»roprict<>r at the address appear- ing in the register bonk. Ounn v. Land Mort jfage Bank of Victoria. Limited, et al., 12 A. L. T. 40 Notice, vnuUiits of. A mortgage under the *' Transfer of T^and Sta- tute " (Victoria. No. 3tH». uuide service of the notic<' contained in Sec. S4 of that Act, it man- ner therein mentioneed at the time of the registration of the mortgage sliall pass 002 hid EST (iF r.iSHH. III :nul vcHi ill tilt* iiiii' land is Hubsciiui'iitly hroii^hr tind«*r tilt' '* TiaiiHf«M* of Land Art," tla* nioit- ya^»M' (iiniior obtain a forrrlosun' oidof iindt*r S.'c. ILMI of tl hanxftM- of Land Art, 1S!M)" (Victoria). In n- Sniitli, lo A. L. T. M.-» 558 ArtiiiHH ht/ mut'iUiUjur. The N'irtoiian Statute (No. WW) of lsiM») pi-o- videH (S<'r. IL'.') that a niort^a^oi' iiiiiHt havi' I In* con.'ifnt in writing of the tiiHt nioitpjK^'e t(» liiiiiK in liiH own nain«> an a.rtioii for wliicli Hiieh niort}ia;;ee nii;;lit i nude:- See. 124) Hue. A niort^a^jor who had paiil <>tY tli " money due under the iiiort^My;e. and who had lod;;ed the (Ii8«lnir;;e for re^istratiou, luir had not obtained ai-,v Ik »'xIo|i|m'«I fioiii «|«'uy- inu tliiit > pint of tli«- land. Aiirttnil otln To. iLil.i v. Aiiiln-w Krir & <;o. (Lf H. fa. and Mtatcnient HptM-ifylnK the laud to be aff«ntt'd tluTeh.v, piVMcntiil for ir^JH- ti'iitiou undt'P KtH'. \'.\\\ t)f tlu' Virtoilan Htatutu (No. 114JM, rannot Im« if^lnteivd by tin* IMlleM Oftlfv unlcHH tlu? <'stat«' or IntcreHt of tlu» judj;- nicnt (h'btor, a^aiuHt wlibli it is sought to be n>j;i»t»*P'd, appears upon tlu» i'rf;i»tfr at the tiini* tlu* ropy tl. fa. in bKl^cil. It wsih not intcndi'd that kucIi ropy tt. fa. and Htat«'ni«'nt Hhould b<> n'taintHl in tht* ottir<' until Hurli cHtatc or intcrcMt slitnild appear in the leixistei*. Hlehai'dx v. <'adniaii, 17 V. L. H. '1{Y.\ Prioi'itU'H. The interest of K. in a wei-tain parcel under thi' "Transfer of Land Statute" (Vietoria, No. :{01), was an equity of redemption undei- a dee«l ui defeiisanee exeruted by tile niort- pijree, wlio had taken a transfei* of the land under the statute, abKolut<' in form, as seturity. All execution creditor of S. lod^;iHl a writ of tleri facias for exeoition. and serv«*d upon the re^jistrar a cojiy thereof, with :i statement speclfyinj? the cijuity of redeniptittii in tlu-ne lands as the lands soujfht to be affected thereby. Subsequent t«» such service, and be- fore the sab» by the sheritf, S. sold by parol her equity of redemittion to M., who had no notice of the wiit of ti. fa. The slnMiil' after wards sold und<'r the ti. fa. the equity of re- demption, which was ])urchased by the exe«u- tion creditor. The mortpi;;ee, although the execution cre ««|iilt.v of i'«Ml«'iii|tfioii, hihI tli«'i'«'foi«' lilt' iMii'rliiim* l»v M. from tilt' fXiTiiiion «l«*l»ioi' wiim viiliti iiiiaH«* to hiiul, rliar^ '. or atTcrt rlic laud iiiiIi'km ii ti'aiiHfiM' ii|>oii a Hall* iiiMlcr Hiirli writ hIuiII Ih' h'ft for fiitry ii|»oii tli** r«'^lHt«M' wlthla tlir'.M> iiioiitliM from tin* «ia,v on wliirh tlw ropy, af(onipani*> alTiM-tiHl th«'r«4iy. \\»h m«m'v«m1 upon thf ri'jriMtrar. TIm* |x»llry of tlu* Ii«*trlKlatnr«> wiiH to pr<»viint tIth'H from iM'In^j aflf«'«'t«Ml l»y tilt* o|HM'ation bfyoiul a Uinlt«Ml tlnu* of un- «*x«MMit«*.l wrItH of execution i\h cjuirp'i* on tlu' land, and to r land fi>r thn'e months from the date of the service of the c(>py upon the rejristrar. A transferee under tlie alias writ would take subject to rights a«'<|uln*il before kucIi service. Nor would the alias writ enlarne, contrary to tlu* plain indicy of the statute, the operation of tJie original writ by continuing the time In^yond tlu* pericnl tixed for the expiration of such original writ. The Rej.'iMtrar of Titles v. Tuterson, L. K. 2 App. Cas. 110 Rft 58 imniHT OF r.\NHH, ({05 Irniiiilaritif in mttln' of wili Uif nht liH' —Snhntim- thil ntmitlinun . The Art 111 VW. No. 1!», h. I7r. (VI.-toHai. i-.*- qiiiivd oiii> nunilli'H iiollrf of liitnilioii of KliiTifT to M<'ll iiiHlt'f wiit of tt«'ri failiiM to Ih* Kivfii in two iii*\VM|)ii|N>rH. I<4iiul iiii«I«t tin.* "TijiiiHffi- of LiiimI Htiitiiti'" (N'htorlii. Xo. :MI||, utiH l4'vi»7t», am 1nt«>ntion to h(>II on tli«> :tnl •lanuiirv. is'l ; nnd in tli«* Oiixfttr of tlii> !)tli DfccnihiT, 1^70, iin intention to h<>II on tin* KMIi •liuiniii-.v, 1^71. TIm* Mlicritr Mold on tlio KMli .Tannaiy, 1m71, and on tin* :ilHt .lannar.v f.\«>rut<>d a tnini4ft>r to tin* piirrliaMcr. F{4'^;iMt ration of tiu* tnuiMftM* y\i\H rffuH<'d on tin* Kionnd tliat notirt* of in- tention to M4'll on tilt' tiMli Januaiy waH not advert iwd in two papeiM aceonlin^ to law. Held, tllilt tlie olij(;iHtrar- /A ''W V Photographic Sciences Corporation 23 WEST MAIN STREET WEBSTER, N.Y. 14580 (716) 872-4503 f/j coc urausT or canes. transfer under a sale from the sli'Titf which is lo(lj,'ed with hiui, if it be valid. After such re}4:i»ti'ati<»n lie should refuse to rejjister any transfer subsequently lodged. In every ease it is his duty to determine the validity of the instrument lodged for registration, and if it appear not to comply with a londition in the instrument of title, he must decide for himself whether such condition is valid. In re the ''Transfer of Land Statute," Ex parte Bond, « V. L. R. (L.) 458 2r. Purchase of leafic from Crown. The purchaser at a sheriff's sale of a lease under the " Lan J Act, 1860" (Victoria), is entitled, on pa; it t of overdue rent betore entry by the Cio\*ii for non-payment, to obtain an injunction resi»*ahiin}; the Crown from proceedlm-; for a *'' 'c'ture. Kickham v. Tlie Queen. ^ A. L. T. T 530 Crown lease, condition not io assiffn. A condition inserted in a Grown lease under the "Victorian Land Act, 1869," tliat no assignment or transfer should have any validity whaiLner until sanctioned by the Governoi'in-Council, does not apply to an involuntary assignment, as by a sale under a writ of fl. fa. In re the "Transfer of Land Statute," Ex parte Ellii*on, 5 V. L. R. 39 502 It was sought to prevent registration of an assignment of a Grown lease by the sheriff under a writ of fi. fa. on tlie ground that there was a condition in the lease that no assignment or transfer should have any validity whatever until sanctioned by the Govenior-in-Council. It was held, however, that the condition was not applicable to an involuntary assignment, as by a sale under a writ of fi. fa. In re the "Transfer of Land Statute," Ex parte Ellison, 5 V. L. R. 59 502 DIGEST OF CASKS. (i07 AssuKAXCE Frxn. 'Morft' of till' Piiicliascr'H ii^:lir t«» iiiHist tin tiini> lM>iiiip; of tli(> ('Hscncv of tiio (tonlrait in i'(>pird to tlu? Mix iiioiifliM. DaviK v. Doii^all, ]5 V. L. K. 424 noT Carrat, rendnrs duUf to remove. Undor Sec. 5S of tho "Transfer of liand Statute" (Victoria, No. .tOl), the repistnition, and not tlie execution, of the transfer divewts the estate. Until rej^istration the proprietor has not done all that is necessary to divest the estate out of himself and vest it in the trans- feree. It is, then'fore, the duty of the vendor to have a caveat against registration of the transfer removed; amd, although the caveat liad lapsed and the regiatrar in treating it a.s in existence was in error, the vendor is bound to take the necessisiry steps to compel the regisrtrar to register the ti'ansfer. Taylor v. The Land Mortgage Bank of Victoria, Limited, 12 V. L. R. 74S 108 Purchaser not entitled to abstract- Upon a contract for sale of land under the " Transfer of Land Statute " (Victoria, No. aoi), in which the vendor undeKakes to sign a transfer, the purchaser is only entitled' to a transfer under the Act, and is not entitled to any absitract of title or production of docu- ments. Davidson V.Brown, 5 V.L.R.(L.) 288. 424 Purchaser in possession- A purchaser who is let into posse«sioiD under the contract for the sale of the land to him is tenant at will to his vendor, and has at the' same time an equity Avhich would not allow his vendor to determdue the tenancy at will except by converting it into an estate in fee simple. It is not ixxssible to dissevi'r the ten- ancy from the contract. Together they form an " interest " to wiiieh the land was subject luider Sec. 40 of the Victorian Statute (No. .301), (which proddes that the laml shall be subject to the interest of any tenant of the land, notwithu«*tanding the same may not be H.TOR.OAS.— .'iO (iiO DKinsr (tr rAfiEs. H\»'t'\ii\\y iioLitIrd iiH an ijiciiiubraiici> uii the r«'i(illcaU'), aiKl vvUlcli itt ciilHhMl lo prevail agaiimt the claliu of a uew propi-letor under hlH tt'i'lillcate of title. Haiudhiift»t' Muiuul I'erumueut laveHftuieuiBuildiug 8ociet>' v. Uin- »iug, 15 V. L. K. a2U 4GU Specific pcrformmwc- \},, the registered proprietor of a parcel of laiud under the "Trauufer of Land Htatute" (Victoria, No. aOl), sold the wann? to the muui- eipality. The agre*jineiit for wile proviiin.H nionil turpiliidf, iidliitil (liHlioncst (Iciilin^, iinil docs not include wliiil) is Ixnown tm ' r«nv»ti in'tivc friind.'" I'or WilUnniH, J. **Tln» fnind rcftint'd lo in tlic 'TninHfcr of Land Act, IHJM),' iH n«ilnnl nun'iil (No. MH), by St>c. 84, in'o\id<'s that " in case default Ik» made in pay- ment of tlie piinciiKil Hum, int«M'«'st or annuity secured," etc. It \va» cont^ird'cfl that there was no nnm "secured" until re^jistra- tion of the niortpajje, on tlie ground that the inortpip;(» i» only to have eftect iis a H(*cnrity wh(n rev'ist"red. Hold, iliat the wor«1 " HPcnrtKl " refers both to th(» ncoirity crc-attHl by the covenant to pay the principal and' in- terest contaitH'd in aj mopt«;a};e deed, and in force between th<' parties b('f(H*e its I'epstra- tion, and ah^) to the security in resjx'ct to flie land itself, which comes into existence only when the deed is registered. Mathieson v. The Mercantile, Finance and Ajjencv Companv, Limited, 17 V. L. R. 271 .* .' . 5:i2 4(it> |i 478 MISOELLANEOTTS. Tranfifictinnff of iitftftlrrnt after assiffinmnt. Where the assijjntioe of an insolv'ent estate, havincr lodged a caveat against any dealing with land forming ]>art of such estate, makes an a|>plication to be reiristered as proprietor nnder Sec. 2.^6 of the "Transfer of Land Act, 1890" (Victori^O, during the existence of snch caveat the registrar is bound to ignore all deal- 012 iniit:sr or rAstis. h\iiH b.v IIh' liiHolvciit |)io|>i-i<'toi' with hiiiil nndt'i' tlu* <>|»<'riili<>ii of Ihc Art, iitui to r(';;lsl«'r tin* ji»Klp;iMM'. Ill iM* I'jiliiniti'ci', ir> v. \j. K. 7!K{. .'iM Ijinhi'n of tviiiiHt. Liirlu'H of tciijiiit ill iiHscitiii^: liis Htiilntof.v I'i^'lit. HccKaiKllniiHt Miitnal I'niiiiinciit niiiid- iiit; Soclc'fv V. (JiHHiiiK, lo v. L. U. :12!) 4(i(» I nfvfttacjf. Wi.t'ic 11 tt'stiitor, altlioii^^li not. devlKliit^ the h'pil «'Htiit«' in IiIh ItintlH, n'wrn lil» executor power to sell tluMii, he dm'S not die iiiteHtate as to Hiieh lands within the nieaninp; of the "Transfer of Land Statute" (Victoi-ia, No. :101), and a rule to jwhiiiiiister such lands will not be j;ranteared that the legal estate was not in him. Held, that if he relied on his cer- tificate alone he might have succeeded'; but as he went outside the certificate, and thereby , showed he had not the h'gal estate, he must be nonsuited. Miller v. IMoresev, 2 V. R. (L.) 3J) ' 43G In a further proceeding in ejectment l>etwe<«n the same parties, the plaintiff, who had ob- UUIKHT OF VAStJS. 618 taiiicd from (lie i-«*p:iHtiar a new ci'i'titlnitt* in HubMtitution for i\w oiu> produced in tho ffunicr art Ion, put in llio n»'\v tcrtirtralo and gavi* no odirr (>vid<>n('('. I'pon motion f(»r nonttuit, lu'ld, tliat llic (M'l'tiMi'atf waH conclnHivc «'vi- dn'niM' iluit (li(> (N'rHon named' in it iH pro- pri«it(H*. If, in not n4'r<'HMar,v to prow tlic pre- liininarv Htcpn talicn t(» procure tin* C4»rtitl('at<'. Miller v. More»e.v, 2 V. K. (L.) 103 4:iS hnniind hcfitn; vjivtnrMt. Wlien H. i>ad iiitered into poHm'H»ion of land under a c.intract madi' witli a perwm from wlunni tln>se Melting to eject liiin^ tlu*mwlveH (ieriveil title, held, tlmt lK*for«» tlie.v conld maintain ejectment U. wa« entitletl to a de- mand of |K>»H<'H»ion. Colonial IJanlv v. Roacli, 1 V. R. (L.) 105 374 Th'fvmhiut nvvd not (Jinclosr hi.H titU' Tliere i» nothing' in tii<* "Ti*am4fer of Land Statute'" (No. .'Wl of Victoria) K transfer a lejial rijjht to a Tonrt of Equity, or to compel a def<*ndant to diwloHo liis title. Jamioson v. Quinlan, W V. L. R. (E.) 230. OffvnviH umkr the Act. Sectioni 153 of tlie "Victorian Land Transfer Statute" (No. 301) emu-ts, intvr alia, that any person wilfully mal^inK any falw* statenumt or declaration in an applir^ition to bring land under the Act. or fraudulently jirocurinR the issue of a certificate of title, is jjnilfy of a mis- diemeanour. Tin a caw the only e\idiPTice in support of fh<» charp'S was that api)eflri'nu upon rhe applicatioii, {;nd the statutory d'eclu- ration of the accused filed in Rup|K>rf of it, ppodiiced' by the proiKT officer from the Olflce of Titles, and the <'ertiflcate of titU* Rranf<*d thereupon, and the reasonable infc^rence to be drawn tlu'refrom, tojji'thor with evidence that the material stafcmeiits in sucIj declaration were false. T^pon a case resiM'ved, lield, that the evidence was sufficient to sup|>ort a con- viction. Regina v. Aedy, 13 V. L. R. 746. . . . U5 614 IHGEUT OF VAHIS8. RviftMtrar. Wliri(> tlu' Htiitii((> (No. '.m of VirtiM'ia) pro- vhI)i1 tluit ill niH(> it ii|>i»(Sii'<'(i (o tlH> HiitiHrnc lion of tlu> I'ci^'iHd'iir tlial any r4>rtiHrat«> luiil iKMiMMl ill t'l'i-tM* (lie ri');isti'ai' ini^lit apply (o liav<' tlu' cortiflcatc cailiMl in, iiian<1aiiiiiM iIoch not li«' to conipcl tlw rcKiHtnir to jfivo liiw rra HoiiH for rcfuHiiiff to a<'t. For it wan not prov4Ml to tlu' Ooiirt t'lnt it appiNU' {mm'hoii who li«>l(>diii); to obtain a r<>rtiti rate of title under the "Tnumfer of Land Art. 1S!M)" (Victoria), llethiiue v. l»orteon8, 14 A. L. T. 265 ( 'oats. A teMtator d^'viwHl the jMU'tiion of hl« land occupied by IiIh »on to IiIh mn\ and the {KU'tioii o<«iipicdi by himself toi hin d']in<;hter. In hiH lifetliiH* Mie testator exercised a rljfht of way x>ver a |>ortioTi of the land in hisi son's occupa- tion to j(ain access to the land in liis own occupation. Tlie son induced his sister to sign an appHcatioTi to brinj? tlie land under the *' Transfer of Land Statute » (Vict^iia, No. .101). In a suit by the diauj^liter to rei-tify tlie c«n«tifl- catt"H isHued to her and her brotliep an not cor- rectly showinp the portions to whicli they were n-Mfiectively entitled, held, tlmt under the will tlie daughter h«d tlie sanw rijfht of way of necessity which had been exercised by the testator duriufj his lifetime; held, further, that the defendant's duty Was to see that the plain- tiflf snfflciently understood the application she was siiminjf, and therefore the defendant was «r.i«'v».(i to pav the costs. Oampbell v. Janett, 7 A'. L. R. (E.) 137 :t'2'.\ Othi 313 -? INDHX TO I)I(;KST. 6l!li 55S AlMtiiKi. iMiifliiisfi' not nititlt'il to. «;*>!) .\MH«'SHioll, .'<»"», 7lli\, l»l i Aiipcal, appliraiioii t'oi r<'y:iNtnitioii, how iitlVrlt-il Itv, ."iiiT fioiii K(').'lHti'ai', r>s«; Appllrant. pioof l),v. r»«»s \valv«M- h.v. ■)«»!> Apjilit-atioii foi' n'^istratioii, riitrt r»7(>(»; lait see 31:? «'av«'at. lapse of, 5(i9 revivor of, 570 removal of. 581), (iO'J elfect on title, 5SS waiver of, 5(5*J Caveats forbidding: the brinpn^' of land under the Act, 5(58, et «e(i. apiinst dealing h.v registered owner, 587 ins(dvent. 584, 587, till Caveator in possession, 5(18 Caveator's remedies, 5(>8 Caution — See Caveat. Certitieat«'s of title jj»'»<'i'»lly, 570, et se(i. eaneellation of, 570-1, 578 eonclnsiveness of, 572 recalling, 572 rectifying?, 571 custody of, 5J)5 Charges, 504. See Mortpifres, Consideration nominal, 580 ^ Construction of Act, 572 I H.TOB.CAS.— 40 it • J> (ill) /.V//AV TO I'luKsr. Cnlinlniriivr riiiml. ."HO. lill. St.' rriiiul. IMili.r. "SI. t;oo. S«t' Nnliti'. l'4i|ltllHt. rlliMl nl. Im'I'oIt n-plHt nil inil. r»7!>. .'Sr>. ft >*IM|., (.01. CM I'ONlN. .V.tO. tlKt. (ill ri'««liiitr. Jmlniiit iM. tliii,\ nl. r»K'. 4 ('■■own ImmiikI. 'tT.\ I h-fi'iiHiiiH'i'. (Ifi'd <»r. .v.!* IfisrloHiiii- ol iiil«'. (ii:'.. S.'.' I'lodiH lion •1M|| iliriih- •TiliOriilt' |trimii liti'ic »'\i»l»'iur of 1i(l»'. r»7l MiisniifriiM. ri(ir». r»T'J. ."»T;i. .v.mi:.. •hi *'!i«rtimiH. rvi«l»'IMi' ;ili«l |tlor»'«l(l|i'. '(OM. .*7(», 't'.K;, UliJ, ft H«'<|. Kt|iiiliil»l»' iiioilj;ii>i«'. .V.».'. rl. xlvii riulil! .)•: K«|iiil> ol" !• '(It'iiiidion. .I'.Ml. KKrlM'iil lo till' ("ntWII. .*•(■»(■» KiH(o|l|M'l of It'SHt**-. .V.t KXfriitioli o <.IV. (iOl l.XfCU I' iiiiiiMffi- iiiHil l•♦'^'lHl^•l•••^l tl<»«'H not Hivwl (IclMor. r»H4. r»s7 tor not •• intrifsi.Ml"' l.\ i-Llif-iilion lo \>\\\ il*Nr,M, (il2 'i. r.'i.. n'n'"^ ti-iiti f. .>!. :l^:^ r.M4. r»H7 locK not iitiii.h to alUM jotjuirnl lainl. (''l> priofil JOS. (>(>;!, (JO.'i iilias writ. (i(U t'Xpif.v. (>(M Fixlmcs. (KK! Knrrrl«»sn!'«*. (iOU ?-'oiji('rv. r.7J. r»7s. (>(^7 J'N»rniH. or« not I In- wImto |>ior«'«Mlinj:s lo rancel. l»nt H< Mistnu* \ i»artv. r>7l: onlor «l«'la.viii^t tiansfir. .'SS Kraiid doflnition an7r,. ."7s. r.s(K r>s4 |H'inill.v. '".1.". Inroi'liofoa 1 lion'dUanM'nts. irnistialiou of. ."(;.'. r.sr. rnrumbi-siiKM'." Tm. (tl(>. S«'.' .Moi(j;iiji«'s. rii(l«'f«'asibl»' titl*', 57l! Injunction, frnu'dy b.v. '^\'\ (i. r»(is. .178. ')«(■>. .")S7. til 4 Insolvent. 1iansf<'i'S bv, 5X4. «511 Instinnu'ii t, clT.M't of \ini'«'}i;isteivil. Sec Conliitcts. Tnt /.V/>A» rn IHi.t.'sr. (117 " Illf.'ll'HllMl. • .••»... lltoi Uhrii iillil uImI) IiuI »;|'» Iliti'Hfiirv. .'iIK;. till! " JtiriNilirrioh of ruiiifs ..v.f K..j.iHlii,r. :,»i»j S.M. liijiiiH-iioii iiiMl MniMlimiiiM. of ^^•»rlstnlr. r»iut. nsr. IjhIm'h of ifiiiiiii ill iih4Nfi'iiiiL: litrlii .vi» " IwifmI." ri!.>2 •-♦'^►t'n. r»7«;. .v>;t «'ro\vri. r.iMi iiiiliih);. .'!):( (.iiimtir. UHH MuMiliiiiiiiN. r»'iiM*«l,v \t\. ."iN,'^ Moi'|j.'iiK«'H. ri!(4. ••( .s«'i|. »»y iihsoliMf trniisr«T iiimI ii;'»'. r.!>M !», (idO «l<'f*'cl it). ."iltS f)m'ii(Ml iMi«Hiti«'s. <;();{. (ior. ('i'. .'!is. (id!). (ii:i I'linlijiNiT. S«>f VomIoi- jiiKJ l'iiirlins«M'. ill iiioiMjxiijvt' siiN'. liOl in |M)SN('ssioii. (i(M) iKif (MifilhMl t<» iibslnirl of litl«». (;on l'j||K'f lille — S(M' Ailvrrsc INtsscssion iiiMi In jiiiiclion. rv»w<'r of jitfoiiM'.v. r)STt QuU'i «'nJ(Miii('!i<. nioi'f}r}i^MM''s rifrlil lo. :>*.)' KVrtifyinj!: corfificiil,' imd n'«iisl«M'. 571. CU Ilo^nHtci'. rfM'fifvina^. 571 (ilB INIiKX Tt< ItlUKST. KegiHtrur, dutieM and |)owt'i>, uCiC, 580, 014 appeal fi-uni, r).s(» RejjiHtratiou, eff«'ct of, 5.^5, »•! ot-q. KcsciHHion of contra«t. 010 Ki^ht of wav, 51)11 .*{, (;i4. Src^ Ka8t!meiit«. Sale under mortj^Mge, r)!»7-!>, 000, (501 "Seemed," Oil Sherift"8 sales, 582, «-t Hetj., 00:{-(Hh') Spt'cifte perf<»nnaiu'e, OOS, 010 when taveal, 5S8 Kul)letlln}{ l)v lessee, TAW "Tenant," 577, widei- than lessee. Oil attornment, 51M{ Tenant at snfteninee, 5!)7 at will, 577, 51):{, 000 of niortf^agoi', 5!H> purchaser, (iOO Tenants' rights, 577 laehes in enforcing, 594, 012 Tender, effect of, to sta.v [U'oceedinjv^, 001 Time, where, essence of «'ontract, tiOJ), 010 Title indefeasible, 572 evidence of, 57.'14 Transfers, generally, 570, et seq. fraudulent — See F'raud. by insolvents, 584 Transferee, dutv of, 578, 007 Trusts, 574-5, 5>>5, of. xlvii. Trustee, 505, 507 Use and occupation, 504, 507 User of land, particular, 504, (>10 specific performance of, 610 Vendor and purchaser, 582, 608 Vendor's duty to remove caveat, 609 Voluntary conveyance, 13 Eliz. c. 5: 578 Volunteers, 575-6, 578 Waiver of caveat, 569 condition, 608 Writs of execution— See Fi. Fa. ' * , 610