The Titles to Land Act of 1858 No 4a (NSW)

3150	No. 1.	22° VIC.	1858.
Titles to Land.

ANNO yiCESIMO SECUNDO

Y I C T O E I ^ E E G I N J 5 .

No. I.

titlkstoland . An Act to remove certain diflficulties affecting

Titles to Land. [30th June, 1858.]

Preamble. TTTH EREA S from various causes many difFiculties exist aifcctiu"

the legal title to Land in this Colony or the estaldishment of the same in evidence for the removal of which difficulties it is expedient to make the several provisions hereinafter contained Be it therefore enacted hy the Queen’s Most Excellent Majesty by and Avith the advice and consent of the Legislative Council and Legislative Assembly of NeAV South "Wales in Parliament assembled and hy the authority of the same as follows ;—

V T

Certain informal

purchases in fee.	1. In every case where before the commencement of this Act any person seised of or entitled to land in fee or entitled to have a Crown grant thereof made to him in fee shall have sold and have eonveyed or contracted to convoy the same land to the party purcliasing such party shall be deemed as against the A'endor his heirs and assigns to have taken or to he entitled to (as the case may he) an estates in fee in the same land notwithstanding the absence of any words of inheri­ tance in the instrument of conveyance or contract as the case may he unless a contrary intention shall appear hy such instrument or other­ wise Provided that this section .shall not defeat any ejectment or suit noAV pending or brought within six months after the commence­ ment of this Act nor prejudice the title of any person now in possession of the land and claiming under such A'endor.
Sales of land by
Bberiff.	2. I t shall not hereafter he necessary for any Sheriff to make an actual seizure of land under any writ in order to authorize a sale thereof but instead of such seizure he shall cause notice of the writ and of the intended day and place of sale and the particulars of the property to be published in such manner as tlie Judges of the Supreme Court or the Judge at Morcton Bay if the land be in that district shall from time to time direct And the publication of such notice shall be equivalent to an actual levy hy him on the land indicated hy such notice.
Deeds of sale by	3. Every deed of sale heretofore or hereafter executed hy any Sheriff of the land of a judgment debtor or of the right title and interest of such debtor to and in any land shall be primdfacie evidence of the existence of a valid judgment and writ to support a levy by such Sheriff on the land and of the fact of a levy having hcen duly made on such land if stated in the deed or of such notice as aforesaid having been duly published if that fact he so stated And no such deed shall he deemed invalid by reason only of non-registration within one calendar month as now prescribed by law.
Sherilf.

1858.	22 ̂ VIC.	No. 1.	3151
Titles to Land.

4. Xo Crown "rant of land heretofore issued and no deed in F oi- remeiiy ofinsui'-

wliicli the description of the land corresponds with that contained in such g-rant shall be void for want of certainty in such description in any case where the Governor shall after the commencement of this Act hy an instrument in writing under his hand and the seal of the Colony describe with sufficient certainty the land intended to have been com­ prised in such grant but in every such case the land so described as last aforesaid shall be taken to be the land described in the grant and in every such deed as aforesaid and to have been granted and eonveyed thereby respectively.

5. Provided always that nothing in the preceding section shall Proviso to protect

prejudice any person now in possession of the land or any part thereof claiming adversely to the grantee his lieirs or assigns or shall affect any grant of the same land or any part thereof issued by the Crown subsequently to the first grant or any title to the land claimed under such subsequent grant.

0. No such instrument shall be signed unless the intention New description to

to make and sign the same shall have been noi ified under the liand of tlu! Secretary for Lands and Public Works by three separate publi­ cations in the Government Gazette and in some newspaper circulating in the district in which the land is situated three months at the least before the time of such signing containing therein the name of the grantee and of the party applying for such instrument and tlie description in the grant as well as that proposed to be substituted And every such instrument shall be countersigned hy such Secretary and enrolled in the office for the registration of deeds.

7. The like proceedings may be taken in respect of any Crown Tiie like provisions

grant heretofore or hereafter issued in which there shall be any mis- J," “ s'"

nomer of the grantee or misdescription of the land granted and in

every case where an instrument in writing shall have been so signed

and enrolled as aforesaid stating therein the matters intended to be

corrected and the name or description substituted or intended so to bo

such name or description sliall be taken to have been inserted origi­

nally in the grant and in every deed containing the erroneous name

or description and such grant and every such deed shall operate and

be construed accordingly.

8. Any such instrument as aforesaid may be by separate writ- Proof of instnimcnt.

ing or be indorsed on the grant to which it relates and it shall be suffi­ cient in any suit or action for the party adducing any such instruimmt to prove its enrolment without shewing compliance with any otlier provision of the preceding section.

9. For any of the purposes contemplated by the five last pre- .

the jiarlies and all Avitncsscs where evidence may he deemed neccssjtry and to rejAort to the Governor upon the matters as fully and in tlu; same manner as upon an inquiry authorized in terras by the said Acts.

ceeding sections or any of them it shall be lawfid for the Governor to sUmers (m ChiuTu,

cause inquiry to he made if he shall sec fit so to do as to the interests

of any ])erson who may be affi'ctcd or wlio shall represent tliat he w ill

he affected by any proposed new description or correction of any error

as albresaid before the Commissioners for Claims to Grants of Land

appointed under the Acts in that behalf and to refer accordingly any

ajfplieation for any sucli instrument as aforesaid and any claim or

cfiveat in opposition thereto for the report thereupon of such Commis­

sioners at th(5 cost of the party or parties as in the ease of persons

ajjplying lor or entering a caveat against the issue of a gr.ant and such

10. No title to land shall be held bad either at law or in equity Conditions in

by reason of the breach or non-performance of any condition contaimal

4 Q—VOL. 4. in

3152 No. 1. 22« VIC. 1858.

Titles to Land.

in the Crown grant of such land in any case where it shall appear hy any proclamation or hy Avriting under the hand of the Governor countersigned hy the Secretary for Lands and Public Works that no proceedings Avill he at any time taken on behalf of the Crown for avoiding the grant hy reason of such breach or non-performance And every such proclamation may be in general terms applying to all con­ ditions or may he limited to conditions of particular classes or a particular class of cases only.

Parties claiming	11. In cvcry casc wlici’c hcforo tlie commencement of this Act Ci’OAvn grant of land has been issued containing a proviso pur­ porting to reserve or hold harmless the rights of all parties otlier than the grantee such proviso shall as against every bond Jide purchaser or mortgagee for valuable consideration (whether before or after tlie passing of this Act) ivithout actual notice of some adverse claim and against all persons claiming under such purchaser or mortgagee be inoperative and void unless tin' benefit of such proviso be sought by some suit or proceeding nmv pending or commenced within three years or (ivhere the grant has issued during the last three years) within five years after the commencement of this Act.
nfattefof̂ riw
The like in certain	12. In all other cases of land heretofore granted and now in the possession of the grantee his heirs or assigns the rights of all parties claiming adversely to such grantee by matter before the date of the grant shall as against every bond fide purchaser or mortgagee for valuable consideration without actual notice of the adverse claim and against all persons claiming under such purchaser or mortgagee he barred and extinguished both at law and in equity unless some suit or proceeding to establish or enforce those rights 1)(; now pending or shall be commenced within three; years or (where the grant has issued during the last three years) Avithin five years after the commencement of this Act.
other cases.
The like as to future	13. In every case of land licreafter granted hy the Crown the rights of all parties clahning the same land adversely to the; grantee by matter before the date of the grant shall as against every bond fide purchaser or mortgagee for valuable consideration without actual notice of the adverse claim and against all persons claiming under such purchaser or mortgagee be barred and extinguished both at law and in equity (whether there be such a proviso or reservation as aforesaid in the grant or not) unless some suit or pro­ ceeding to establish or enforce the same rights be commenced Avithin five years after the grantee his heirs or assigns shall have been in occupation of the land under such grant.
grants.

Proclamations	11.	Every promise heretofore made by any Governor of this
promising Crown

grants. Colony of a grant of land in fee to any person shall (except as against the Crown) be deemed to haAm conferred upon him an interest in such land devisable bv Avill or alienable bv contract in like manner as equitable estates in land are devisable or alienable And every sueh promise may he cAudenced by any proclamation or by Avriting under the hand of the Gov(;rnor or Colonial Secretary or by recital or state-

• ment in any CroA\m grant Provided that this section shall not defeat any ejectment or suit now pending or commenced Avitliin six months after the commencement of this Act nor shall prejudice or aflect tin; title of any ]>erson in possession of the land under any Crown grant or claiming ad ersely to the peu’son first refci’rcd to his heirs or assigns.

Grants issued in p5_ Ci'OAvn grant of land heretofore issued shall be inA'ali-

apparent Violation 01 n j

5 and 6 Vic. c. 3G. dated ov impcaclicd by reason that the same was not made in pursuance or consideration of any sale or Avas in pursuance of a promise made on behalf of one of Her Majesty’s Hoyal Predecessors and not on behalf of Her Majesty anything in the Act of Parliament passed for

regulating

1858.	22° VIC.	No. 1.	3153
Titles to Land.

regulating the sale of Waste Crown Lands in these Colonies notwith­ standing—or that the sale (in eases of sale) may have been in some; manner or to some person not authorized by that Act.

10. Eor the protection of purchasers and mortgagees und('r LamU of debtors or

Crown debtors or accountants to the Crown ho it enacted that it crX'if

shall be lawful at any time for the Auditor General to take and pass

the accounts of any such debtor or accountant and upon satisfaction

thereof to (;crtify the same under his hand and thereupon it shall he

lawful for the Governor if he shall see fit so to do hy writing und(;r

his hand countersigned hy the Colonial Secretary or Colonial Treasurer

to release all or any of tln ̂ lands of such debtor or accountant in

respect of all claims of the Crown against him uj) to the date of such

release and every such redeaso shall have tlie d fed of an absolute dis­

charge of all the then lands of such debtor or accountant or of the

particular lands specified as the case* may he in the hands of any howl

fide purchaser or mortgagee in respcfd of such claims.

17. No registration of any instrument under any Act now f>r Mistakes in

heretofore in force for the registration of deeds or intended to Ik; [

pursuance of any such Act shall he defeated or made inelfectual In' reason of any omission misdescription or error i#i any case where the identity of the instrument in evidence with the one alleged to liave been registered is established and the substantial requirements of the Act have hcen complied with.

18. No instrument licreafter executed and registered under Registered deed—

the provisions of any Act in force for the registration of deeds shall conveying

lose any priority to which it would he entitled hy virtue of such	"
registration hy reason only of bad faith in the conveying party if the party heneficially taking under sucli instrument acted bond jlde and there was a valuable consideration for the same paid or given.

19. Livery of seizin shall not he deemed to have been necessary Want of livmy of

to give etfcct to any feoffment executed before the third day of January one tliousand eight liundrt'd and forty-two hut every such feoffment shall he taken to have operated in the same manner as tJic same would have done in casc there had been livery of seizin in the most valid lurm hrovidtal that nol hiug in this section shall make any such feoffment ojierate as a tortious conveyance or shall jirejudict; or affect the title of any ]icrson now in possession of land the subject f>f any sueh haiflmeiit and claimed adversely to the feoffee his heirs or assigns.

20. Eviu’y deed affecting or intended to afi'ect land in this rufmmai acknow-

Colony Avhich shall have hcen executed hy any married woman or tenant in tail and which purports to have been acknowledged hy such woman or tenant heibre some person having authority in that behalf shall he valid and effectual in its intended operation to all intemts and j)urposcs notwithstanding that the acknowledgment indorsed on such dficd may not have been taken or certified in due form.

21. Every acknoAvledgment heretofore or hereafter made; by ocitain aekuowieiig-

any married woman or other person takem before and (sertified by any ’(.‘""provided the Supreme Court of this Colony for taking acknowledgments or affidavits (or Avhich shall purport to he so taken and certified) in any part of Her Majesty’s Dominions and whether the certificate be under seal or not shall he as valid and effectual as if the same had been in this Colony taken before and certified in due form hy a Judge of the Supreme Court of New South Wales And th(! like with respect to acknowledgments made and certified in any Ĵ’oreign Country before and hy any British Consul or Vice Consul or purporting so to he.

3154 No. 2. 22° VIC. 1858.

Hard Labor Sentences.

Dower barred	22. In aU cases where a married man has conveyed or shall coDvey any land cither absolutely or hy way of mortgage a deed now or hereafter duly executed and acknowledged by his wife if such acknowledgment be duly certified shall he operative to bar her con­ tingent right to dower although her husband be not a party to such deed.
not a party to deed.
Trustees’ receipts.	23. All persons paying money to trustees entitled to receive the same shall be exonerated from liability in respect of the non- ai^plication or mis-application of such money unless such liability was expressly retained or imposed by the instrument creating the trust Provided that nothing in this section sliall protect any person colluding with any trustee in a fraud or breach of trust or any person claiming under him unless such last-mentioned person he a purchaser or mortgagee for valuable consideration and without notice of the fraud or breach of trust.
Money paid into
Court by mortgagor	24. Where the amount of principal and interest due on any under the provisions of the Trustee Act of 1852 and the same shall afterwards be paid hy virtue of any order of the Court to the person mentioned in such order such payment shall operate as a reconveyance of the land comprised* in such mortgage to the person who shall at the time of such payment be entitled to the equity of redemption thereof Provided that such order he registered in the office of the llegistrar of Deeds before such payment shall take effect.
and afterwards paid	mortgage shall he paid into the Supremo Court by any mortgagor
out.
Covenants to pro­	25. A covenant or undertaking whether now or hereafter entered into to produce to any purchaser lessee or mortgagee of land or his assigns any deed of or relating to such land shall he satisfied hy a deposit of the deed permanently in the office of the Registrar of Deeds who shall give a receipt for and keep in his office a list of all deeds so deposited and shall permit any person on payment of the proper fees to inspect and obtain copies of every such deed,
duce deeds.
Presumption of
survivorship.	20. In all cases where two or more persons shall have died under circumstances rendering it uncertain which of them survived the deaths shall for all purposes affecting the title to land he presumed to have taken place in order of seniority and the younger he deemed to have survived the elder.
Commencement and
title of Act.	27. This Act shall commence on the first day of July next and may be cited for all purposes as “ The Titles to Land Act of 1858.”

altliougli hiisl)and