Property Act 1860 (SA)

ANNO VICESZMO TERTIO ET VLCESIMO QUARTO

V I C T O R I E REGINB. .

No. 6.

An Act to amend the Law of	Property cmd for other Puvoses.
[Assented to, 17th October, 1860.J

E it Enacted by the Governor-in-Chief of the Province of South PreimMe.

B Australia, with the advice and consent of the Legislative	Council and House of Assembly of the said Province, in. this preaent
Parliament assembled, as follows-

1. In the construction of this Act-	Interpretabion of
terms,
The word 'g stock" shall mean any fund, annuity, or security transferable in books kept by any company or society established or to be established, or transferable by deed alone, or by deed accompanied by other formalities, and any uha.re or interest therein:

The word transfer" shall mean the execution and performance

of every deed and act by which a person entitled to stock

can transfer such from himself to another:

The word mortgage" shall mean every instrument by virtue

whereof land or other property is in any manner conveyed,

assigned, pledged, or charged as security for the repayment

of money or money's worth lent, and to be reconveyed, re-

assigned, or released on satisfaction of the debt:

The word mortgagor" shall mean every person by whom such

conveyance, assignment, pledge, or charge as aforesaid shall

be made:

Th word "mortgagee" shall mean every person to whom or in

G whose

m- char@ as tmforedd isJ made or transferred:

The word Court shrill mean the Supreme C O W of South

Australia:

The word "person," used akld referred to in the masculine gender,

shall include a female as well as a male, and shall include a body

corporate; md, generally, unlesss the contrary shall appear from the context, every word importing the singular nuGber shall extend to several persons or things, and every word im-

. porting the masculine gender only shall extend to a female.

Restriction on effect

of licence to alien.	2. Where any licence to do any act, which, without such Iicence would create a forfeiture, or give a right to re-enter, under a con- dition or power reserved in any lease heretofore granted, or to be hereafter granted, shall, a t any time after the cornniencernent of this &t be given to m y lessee or his assigns, every such licence shall, un- less otherwise expressed, extend o d y to thc permission actually given, or ta any specific breach of any proviso or covenant made, or to 'be made, or to the actual assignment under lease, or othcr matter thereby specifically anthorized to be done, but not so as to prevent any proceeding for any subsequent breach \unless otherwise specified in such licence); and all ri hts, under covenants and powers of for-
feiture and re-entry in the P ease contained, shall remain in fbll force and virtue, and sbail be available as qgaiinst any snbsequent breach
of covena'nt, or condition, assignment, underlexsc, or othcr matter, not specifically authorized, or mado dispunishable by such licence, in the same manner as if no licence had been given; and the con- dition and right of re-entry shali be and remain in all respects as if such licence had not been given, except in respect of the particular matter authorized to be done,
Restricted operation
of prtial licence.	3. Where, in any lease heretofore granted, or to be hereafter granted, there is, or shall be a power or condition of re-entry on assigning or underletting, or doing any other specified act, without licence, and a licence at any time after the commencement of this Act shall be given to one of several lessees or co-owners to assign or under- let his share or interest, or to do any other act prohibited to be done without licence, or shall be given to any lessee or owner, or any one
of several lessees or owners, to assign or underlet part only of the property, or to ds any other such act, as aforesaid, in respect of part only of such property; such licence shall not operate to destroy
or extinguish the right of re-entry in case of any breach of the
covenant or condition by the CO-lessee or CO-lessees, or owner or owners, of the other shares or interests in the property, or by the lessee or owner of the rest of the property (as the case may be) over, or in respect of such shares, or interests, or remaining property, but such right of re-entry shall remain in full force, over, or in respect of the shares, or interests, or property, not the subject of
such licence.

4. Where the reversion upon a lease is severed, and the rent oi-

other reservation is legally t-tpportioned, the assignee of each part of

thc

the reversion, shall, in respect of the apportioned rent or other reservation allotted or belonging to him, have, and be entitled, to the benefit of all conditions or powers of re-entry for non-payment of the original rent, or other reservation, in like manner as if such conditions or powers had been reserved to him as incident to his part of the reversion, in respect of the apportioned rent, or other reservation, allotted or belonging to him.

5. The Court shall have power to relieve, against a for- Relief aaaincrt for- feiture for breach of

feiture for breach of a covenant or condition to insure against co,,,nt toinawe in

loss or damage by fire, where no loss or damage by fire ~ e * a i n ~ e @.

has happened, and the breach has, iu the opinion of the Court,

been committed through accident or mistake, or otherwise, without

fraud or grow negligence, and there is an insurance on foot at the

time of the application to the Court, in conformity with the covenant

to insure, upon such terms as to the Court may seem fit.

6. The Court, where relief shall be granted, shall direct a record When relief granted

of such relief llaving been granted, to be made by endorsement on	the same to be
the lease or otherwise.

7. The Court s h d not have Power under this L4ct to relieve the court not to relieve

same person more than once in respect of the same covenant or ~ ~ ~ e ~ ~ P ~ ~ ~ f t & ~

any same covenant, t c,

condition; nor shall it have power to grant relief under thie relief is sought shall have been already waived out of Court in favor of the persou seeking the relief.

8. The pcrson entitled to the benefit of a covenant on the part Lemr to hhw benefit

of a lessee or mort#gagor to insure against loss or damage by fire,	of an informal
shall, on loss or damage by fire happening, have the same advantage fi om any then subsisting insurance relating to the building covenanted to be insured effected by the lessee or mortgagor, in respect of his interest under the lease or in the property, or by any person claiming under him, but not effected io conformity with the covenant, as he would have fmrn an insurance effected in conformity

with the coveaant.

9. Wltere on the bond fie purchase after the commencement of Protection of yur- chaser against forfei

this Act of a leasehold interest, under a lease containing a covenant on , , under coyena~t

or insurance against

the part of the lessee to insure against loss or damage by fire, the f

purchaser is furnished with the written receipt of the pcrson entitled fire in certain cases,

to receive the rent, or his agent for the last payment of rent

accrued due before the completion of the purchase, and there is..

subsisting a t the time of the complctioq of the purchase an

insurance in conformity with the covenant, the purchaser or any

wson claiming under him shall not be subject to any liability

$ way of forfeiture or damages, or otherwise in respect of any breach of the covenant committed at any time before the + W .

completion of the purcllasc of which the purchaser had not notice	A *	.
a -

before the completion of the purcl~nse ; but this provision is not to

take

Z 3,

1": . ;

(L

.F *

.Jli % t

t&e mwy mg remedy Mihh tfhb femr or his legal representatives

may harve again& lib lesset? or his+legal repr~sen~tives	for breach
09 cW&ai3%.

Pm~ding P ~ o * ~ ~ 10. phe p$ecadag prouisians &all'

to apply to learn for be applicable to resties for a

o term of ye&% a h o l u b or detertninsljle on a. life ot lives or other-

lute, gtc.	wise, and also to s leam for the life of the lessee, or the life or lives
of any other perfilon or persons.

Rehaas of per^ of

charged, not to be en 1 1, The release Prom a rent-charge of part of the hereditaments

ch&rged t h a ~ ~ &, ahdl not extihguish the whole rent-charge, but

extkgUidment of

rent-charge. shall o~eritte only to bap the ripht to recover axlv art of the rent-

eharge'out of th; hereditamentg released, withoui

%heIes~, to the rights of all persons ikzte~ested in

~emaining	unreleased and not concurring in or confirming the reb
lease.

ael- &PS& o f h a 12. The release from an execution of part of any hereditameats charged therewith ghall not affect the validity of the execution as to the hereditaments remaining unreleased, or as to any other pro-

&asged not U, affect

execution.

my not specifically released, withont prejudice, nevertheless, to

the ngh$s of all persons interested iti the hereditamevlts or property

remaining un~eleased, and not comurring in or confirming the re-

lease.

Mode of execution of 13. A deed, hereafter executed in the presence of and attested by

I Pmem. two or more witnesses, in the manner in which deeds are ordinarily executed and attested, shall, so far as respects the execution and at- te8ta.tion thereof? be a valid, execution of a power of appointment by deed, or by any instrument in writing, not testamentary, notwith- strtnding it shall have been expressly required that a deed or instrument in writing made in exercise of such power should be executed or attestad with some additional or other form of execution,

legacy, or sum of money out of such estate, it shall be lawful for the said devisee or devisees in trust, notwithstanding any trusts

actually declared by the testator, to p& such debts, legacy, arm

money, as aforesaid, by a sale and absolute disposition, by public	-
auction or private contract of the said hereditaments or any part thereof, by a mortgage of the same with or without a power of sale, on default of payment, or partly in one mode and partly in the other, and any deed or deeds of mortpqe so executed may reserve such rate of interest, and fix such penoh or periods of repayment, as the person or persons cxccutinp the same shall think proper.

15. The powers conferred by the last section shall extend to aaoti oner tendelta Powera given b laet

all and every person or persons in whom the estate devised shall S U I ~ O ~ B,

deyiwe*

for the time being%e vested by survivoi*ship, descent or devise, or

to any person or persons who may be appointed under any power

in the will, or by the Court, to succeed to the trusteeship vested in

such devisee or devisees in trust as aforesaid.

16. If any testator who shall

)C described in section 14, shall no	charged as afarcsaid in such terms
interest therein shall become vested executor or executors for the time be shall have the same or the like power of
is hereinbefore vested in the devisee or hereditaments, and such power shall fro

.air.. become vested in the person

iexecumhip shdl for. the time

moxgage under, this Act shall oper

whether legal or equitable of th

unnecessarf to get k any ontstanding subsisting legal estate.

17. Purchasers or mortgagees shall not be bound to inquire Purcha~el5, &F.. not

whether the powers conferred by sections 14, 15, and 16 of this +4ct powers, bound to ingum as to

or either of them shall have been duly and correctly exercised by

thc person or persons acting in virtue thereof. &+E fYC& C-?Z/

18. The provisions contained in sections 14, 15, and 7

in m y way prejudice or affect any sale or mortgage alre

or hereafter'to be made, under or in pursuance of any will c

into operation before the commencement of this Act, but the validity

of any such sale or mortgage shall be ascertained and determined

in a11 respects ae if this Act had not passed, and the said severa sections shall not extend to a devise to any person or persons in fe or in tail, or for the testator's whole estate and inter

es, nor shall l%$ a f f i t the power o

'to sell or mortgage as he or they

19. Every person shall have power to assign an chose in action,

and the aasignee thereof for the time being may {ring every such

v

x w b w n o t t o * 21. The bonlfids payment to and the receipt of an pdrson to

bmnd to we to the

whom any pwchase or mortgage money shall be payab e upon any 1

ofpm-

expreaa or implied trust shall effectually discharge the persou paying the same from seeing to the application, or beilig answerable for the misapplication thereof, unless the contrary shall be expressly declared by the instrument creating the trust or security: * 3 p

4 - .,

&to ofem- 22. Where an executor or administrator, liable ss such, to the

eaw**mi8'rat0r rents, coveoaits; or agreement. contained in any lease or agreement

.	in revaot; of fen%
*	COYWM, 01 agree- for s lease granted or assigned to the testator or intestate, wbase
wnt8. mtrite is bein adminisk,ed, shall have satisfied dl such liab-

under the s a 6 lease or agreement for a lease, as may have accrued

% *	due end been clai	d vp to the time of the assignment hereafter
"

I

mentioned, sge~haf?k& -W_ wet apart a sufficient fund to answer any

4 A ;! S future claim that niay be mailein respect of any fixed and aseer-

* I

, U:	h h e d sum covenanten or agreed by the lessee to be laid out on the roperty debised or agreed to be demised, although thgpriod
signed the lease or agreement for a lease to a purchaser thereof, he for P ~ y i n g out the sama_pay not have arrived, s i shall have as-
shall be at liberty to distribute the residuary personal ostate of the deceased to and amongst the parties entitled thereto respectively, without appropriating any part or any further part (aa the case

of the personal estate M' the deceased to meet age futm e

the

1 ty under the said lease or .agreement for s lease, a d

tor br adm\istmtor so distributing the re~8iduary estate sh&

not, aftek having assigned the said lease or agreement for a lease, a 3 having, where necessary, set apart such sufficient fund as aforemid

be persondly lisble in respect of any subsequpt claim under the

said learn or agreement for a lease; but nothing herein contained

t shall rejudice the right of the lessor, or those claiming pnder him,

6 \ to fol ow the rtsmts af tbe deceased into the hands of the person or P

-	+	.	persons to or amongst whom the said assets may have been	.
diskibated.

F

543. Ii'like manner, whew m executor or administrator, liable as mch to the rent, coveimnts, or agreements conhined in any cm. veyance on chief-rent or rent-charge (whether any such ~&nk be by Emitation of use, grant, or reservation) or agreement for such con-

,W-lri .m- a	v w c e g m ~ h d m assigned to or made ahd entered into with the
twtettos UP irrhstate whose estate is being administered d d have

f

*. satisfied

satisfied all such liabilities imder the sdd couveyanee, or agreement for a convevm~e~ as may have accrued due and been claimed up to the time ofdthe conveyance hereafter mentioned, and s h d have set apart a sufficient fund to answer any future claim that may be made in respect of any h e d and asbertained sum covenanted or agreed by the grantee to be laid out on the property conveyed or agreed to be conveyed, although the period for laying out the same may not have arrived, and shall htwe conveyed such property or,assigned the said agreement for such conveyance as aforesaid to a purchaser thereof, he shall be at liberty to distribub the residuary personal estate of the deceased to and amongst the parties entitled thereto respectively, without appropriating any part or any further part (as the case may be) of the personal estate of the deceased to meet any future liability under the aaid conveyance or agreement for a con- veyance; and the execut or or administrator so distributiug the residuary estate, shall not, after having made or exeeuted ouch con- veyance or assignment, and having, where necessary, set qmrt ~ u c h

sufficient fund as aforesaid, be personally liable in respect of any subsequent claim under the said conveyance or agreement for con- veyance, but nothing herein contained shall prejudice the right of the grantor or those claiming under him to follow thc assets of the deceased into the hands of the person or persons to or among whom the said assets may have been distributed.

the asscts of testator

B and others to end in notice given by exe- cutor or adminiska-

to the executor or ndrninistrat~	laims aQBinst the estate t
of the testator or intestate,	ecutor or adminietrator

shall, at the expiration of the	ed in the said notices,
or the last of thc said nati	ding in such claims,.
be at liberty to distribute	the testator or intes-
late, or any part thereof,	arties entitled thereto,

having regard to the claims	xecutor or administra-
tor ha8 then notice, and	for the assets or any

part thereof so distributed ose claim such exe- thereof as the case may be; prejudice the right or any part thereof,

cutor or administrator sh	otice at the time of
distribution of the said assets, or a
y have received the

far the opinion, advice, management, &C., o f

tion respecting the ma on of the trust, tmtpropedy.

. property, or the assets such application 1 C 3 2 2 6

to be served upon, or ded by all per- _

sons intewnted in BU - 9 3 3

wilful concealment, or

Every h a t instru-

ment to be deemed to eating a trust either

mn* for out prejudice to tke clauses,

reimbursement of the indemnity and to contain n cbuse in the

krueteea.

out of the trust premises all

execution of the trusts or pow	she said deed, will, or other
instrument."

27. That Illl trustees, exeextor administrators, mortgagees, or implication or cdnstru~ti& of law, r the major part of them, shah be at liberty, on filing an affidavit S ortly de$cribing the instrument creating the trust, according'to th best of their knowledge and

~ r u t e e s, &C., may

M m0ney8s Or

transfer stoclrs and other persons, having in thek. any moneys belonging to any

securitiesl into court, trust whatsoever, o r in resaect a trust shall have arisen b;

-	belief, or if there shall be no such nstrument, then shortly setting
out the facts of the case, and if the E. oneya shall be the surplus aris- ,

C L *	J.	ing fiom the sde of mortgaged prdperty, then settiug out the deed OP instrument of mortgage, to pay the same into the Court, in the matter of the particulPLr trusts (describing the same by the names of the parties, as ac as may be, for the pur-
p s i of distinguishing it), in tr ttend the orders of the
Court; and that all trustees or sons, having any stock
or chow in action standiag in in the names of

be personal repre-

the major part of

osit such stock or

chose

chose in action into the Court, in matter of the particular

trust (describing the saqe as afor in trust to attend the

orders of the Court; and in every case the receipt of the

Court, or some duly authorized ereof, for the money

so paid, or, in the case of stock or

action, the certificate

of the Court, or such duly auth

r, of the transfer, or

deposit of such stock or chose

all be a sufficient dis-

charge to such trustees or other

the stock or chose in action so

28. That where the major part of trustees, executors, Court may* application b. V a rna- -

administrators, or other persons, are US of making such jority of trustees, &C., - I )

transfer, payment, or delivery, a	for any reason the; p n t o r	C
concurrence of the other or -0th	ot be had, it shdl	' *' 5 r
be lawful for the Court to order a ment, or delivery, to be made by the without the concurrence of the other
any such moneys, stock, or chose in
any banker, broker, or other depos Court to make such order for the moneys, stock, or chose in actio trustees, executors, administrators, for the purpose of being paid or
the Court shall seem meet; an or chose in action, in pursuanc as valid and effectual as if the sam or by the act of all the persons e action so tmnsferrcd, or tlw mone and indemnify all Companies and persons acting under or in pursu

29. That such orders as shall seem file shall be from time to court to makeordm

time made by the Court, in respect of	k trust moneys, stock, ! $ $ ~ ~ ~ ~; $ ~ ~
or chose in action 'so paid in,	and deposited, as afore- of trust monep, and administration of

said, and for the investment any such moneys, or ,,,,

of any dividends or interest or chose in action.

and fbr the transfer and delivery & ~ t

action, and for the administration of

upon a petition to be presented in

without bill, by such party or

appear to be competent and ne

vice of such petition shall be ma	erson or persons
as the Court shall see fit an
upon any such petition shall ha

and shall be enforced- and subj	ng and appeal, in the
same nlanner as if the same	e in a suit regularly

instituted in the CdGrt; and if it	appear that any such
trust funds cannot be safely distrib	ithout the institution of

one or more suits, the Court	ch auit or suits
to be instituted.

30. The

eby authorized,

seem nerzessaq

, and 29, of this

\

Personal property in 31. m e r e ally pernon pos~etw?d of pemonal property in the said

8011th Australia may

be 0 in Province slur11 die in any prt of Her Majesty's dominions out of

ce*ain wi&out such Province, w d admimstration to his or her effects, or probate

tadmiobtrrttion or

of his or her will, &ill be duly granted in Great Britain or Ireland,

the administrator or executor shall, upon production of, and

, after d~positing, pursuant to the Act No. 22 of 1853, the letters

of adcniaistratian, or probate, or exemplifications, or office copim

thereof, be entitled to recover, receive, and take possession of

such per~ond property without obtaining adrninistrtltion to the

effects, or probate of the will of the deceased, in the said Pmvince.

FBille of realty how 32. The probate of Rnj- will proved in the mid Province, or the

proved.	probate, or an oxemplificd copy of the probate of anp will granted
by any Court out d the said Province, having authority to grant
probate of wills shall be prim& lbcie evidence of the, contents of such will and of the Jut! execution thereof, in all actiow, suits, and other proceedirrgs in $he said Province relating to lands or heredita- meuts therein situate: Provided, with respect to such exemplified copy, that it shall either purport to be sealed with the seal of the Court by which such probate shall have been granted, or, in the event of such Court hrtving no seal, to be signed by the Judge, or
by any one of the Jud@ of such Court: And provided that such
Judge shall sttach to h@ signature s statement in writing that such
Court has no seal, but if any of such copies shall purport to be so
sealed or signed respectively, the etme shall be respectively re- ceived in evidence irr e'j.ery case in which the original document might be received ifi ekidence, without proof of the authority of such Court, or of the ~5ea1, or of the signature or truth of the statement attached thereto, or of the judicial character of the
erson appearing to hltve made such signature and stakemeat: ffrovided also, that at least one calendar month prior to the trial of the action, suit, or other proceeding wherein it is intended to ust, such probate, or exemplified copy as evidence, notics in writing of
such intention shall be given to the oppo~ite mty by the party
proposing to u~le the wme; and it shall be lawfu f for the Court, or a Judge thereof, from time to time to postpone the trial or hearin$,
in order to afford an opportunity to the party against whom it 1s
proposed to use such probate or exemplified copy as evidence to make inquiries and obtain any evidence which may be necessary to
impeach the validity of mch will; and it shall be lawful for the Court or Judge, after inquiry into the circumstances of the case, to
make such* order a r ~ M 1 deem fit with respect to the nature of the
proof to be produced, and', t c ~ l to costs or 'otherwise, as under the
cit"cumatances s h d seem just.

33. If any ptmon shdl forge,

the seal or signature of, or attached

to,

to, any probate or exemplified copy as aforesaid, or shall tender in evidence any such probate or exemplified copy with a false or coun- terfeit seal or signature thereto, knowing the same to be false or counterfeit, he shall be guilty of felony, and shall, upon conviction, be liable to imprisonment, with or without hard labour, and with or without solitary confinement, for any term not exceeding four years ; and whenever any such probate or exemplified CO y shall have been admitted iu. evidence, by virtue of this Act, t % e Court or Judge who may have admitted the same may, at the

request of any person against whom the same is so admitted in evidence, direct that the same shall he impounded and kept in the custody of ,some officer of the Court or other person, for such period and subject to such conditions as to the said Court or Judge shall Beem fit.

34. This Act may be cited as " The Property Act of 1860." Short title.

35: This Act shall commence and take effect from the first day ::;:yrnent

of November, 1860.

v---- - ---A

Adelaide; P&ted by authority, by W. C. Cox, Govornmont frinfcr, Victoria-square.