Transfer of Land Act 1874 (WA)
WESTERN AUSTRALIA.
ANNO TRICESIMO OCTAVO
VICTORIA, itEGI
nniten*************n*****
No. XIII.
AN ACT to simplify the Title to and the dealing with
Estates in Land.
[Assented to, 6th August, 1874.]
HEREAS it is expedient to give certainty to the title to Preamble.
to render dealings with land more simple and less expensive: Be itW estates in land and to facilitate the proof thereof, and also enacted by His Excellency the Governor of Western Australia and its Dependencies, by and with the advice and consent of the Legisla- tive Council thereof, as-follows :—
PRELIMINARY.
| 1 ALL Laws, Statutes, Acts, Ordinances, Rules, Regulations, | Repeal of previous Acts. |
and practice whatsoever, relating to freehold and other interests in land, so far as is inconsistent with the provisions of this Act, are hereby repealed, so far as regards their application to land under the provisions of this Act, or the bringing of land under the opera-
tit of this Act.
38° ITICTORPE, No. 13.
Transfer of Land.
| Short title. | 2 THIS Act may be cited as " The Transfer of Land Act, |
1874," and shall come into operation on the first day of July, 1875.
| Interpretation | 3 IN the construction of this Act, except when the subject- |
matter or context or the other provisions hereof require a different
construction
The word "land" shall include messuages, tenements, and hereclitaments, corporeal or incorporeal; and in every certificate of title, transfer, and lease issued or made under this Act such word shall also include all ease- ments and appurtenances appertaining to the land • therein described or reputed to be part thereof or appurtenant thereto.
The word " proprietor " shall mean the owner solely, jointly, or in common with any other person, whether in posses- sion, remainder, reversion, expectancy or in tail, or otherwise of land, or of a lease, mortgage, or charge ; and such word shall also include the donee of a power, or other person empowered or authorised to appoint or dispose of the same.
The word " grant " shall mean the deed of grant from the Crown of Waste Crown Lands in Western Australia, whether in fee or for years, and shall include all leases and licenses issued under "An Act to repeal the Acts of
Parliament now in force respecting the disposal of the Waste Lands of the Crown in HIT Majesty's Australian Colonies, and to make other provisions in lieu thereof,"
and the regulations for the sale, letting, disposal, and occupation of Waste Lands of the Crown in Western Australia, made or to be made in pursuance thereof.
The word " annuity " shall mean a sum of money payable periodically and charged on land under the operation of this Act by an instrument hereunder.
The word " charge " shall mean the instrument creating and
charging an annuity.
The word " grantor " shall mean the proprietor of land
charged with the payment of an annuity.
The word " encumbrances" shall include all estates, interests; rights, claims, and demands which can or may be had, made, or set up in, to, upon, or in respect of the land, adversely and preferentially to the title of the pro- prietor.
38° ArICTORIZE, No. 13.
Transfer of Land:
The word " instrument " shall include a conveyance, assign- ment, transfer, lease, mortgage, charge, and also the creation of an easement.
The word " endorsed " shall include anything written upon,
or in the margin, or at the foot of any document.
The word " settlement " shall mean any document under or by virtue of which any land shall be so limited as to create partial or limited estates or interests.
The word " transmission " shall mean the mode of acquiring the ownership of land under any will or settlement, or by descent, or by executors or administrators as such.
The word "person" shall include a corporation, whether
aggregate or sole.
The word " judge " shall mean a judge of the Supreme Court
of Western Australia.
The word " sheriff" shall include the Sheriff of Western Australia so far as concerns land within his bailiwick, and any deputy sheriff or person appointed to execute a writ of fieri facial.
The expression " commissioner for taking affidavits " shall mean a Justice of the Peace or other officer or person authorised to take affidavits in the Supreme Court of Western Australia.
PART I.—APPOINTMENT, POWERS, AND FUNCTIONS OF OFFICERS.
THE Governor, with the advice of the Executive Council, proper person, being a barrister or solicitor of the English, Irish, or Colonial Courts of seven years standing and practice, to be "the Commissioner of Titles " (hereinafter styled " Commissioner " ) for superintending the department hereby established, and for investi- gating and dealing with applications for bringing land under the provisions of this Act, and for other purposes hereinafter appointed. The Governor, with the advice aforesaid, may upon any and every vacancy occurring in such office by death, resignation, or removal, from time to time appoint a fit person to supply such vacancy. '
| may by warrant under his hand and public seal appoint a fit and Commissioner of Titles. | 4 |
| registrar of titles (hereinafter styled the " Registrar"), and any other removal of all officers. | 5 THE Governor, with the advice aforesaid, may . appoint one Appointment of other and. |
officers necessary for carrying out the provisions of this Act, and
38° VICTORI1E, No. 13.
Transfer of Land.
may remove any Commissioner, Registrar, or any other
whether by this Act appointed or hereafter to be appointe
supply any vacancy thereby or otherwise occurring.
| Power to appoint a deputy | n IN case of illness or absence, the Governor may api | w |
in case of illness, person to act as the deputy of any officer appointed under th
during such illness or absence, and such deputy, while acting
such appointment, shall have all the powers and perform
duties of the officer of whom he may be the deputy.
7 ALL courts, judges, and persons acting judicially sha
| dicially noticed. | Certain signatures to be ju- j | judicial notice of the signature of the Commissioner and |
| Registrar, and of any deputy appointed hereunder. |
| Seal of Office. | 8 THE Commissioner shall cause to be prepared and shal |
and use a seal bearing the impression of the Royal Arm having inscribed in the margin thereof the words " Office of Western Australia " ; and all certificates of title and other ments purporting to be sealed with such seal, and to be sig] the Commissioner or his deputy, shall be admissible as ev without further proof.
| tise sioner under this Act, directly or indirectly practise as a ba | Commissioner not to prac- 9 THE Commissioner shall not nor shall any deputy o |
or as an attorney, proctor, or solicitor, or participate hi the
any other person so practising.
| Powers of Commissioner. | 10 THE Commissioner may, by summons under his I the form in the Sixteenth Schedule hereto, require the propri mortgagee or other person interested in any land under or pi to be brought under the operation of this Act, in respect of whi transfer, lease, mortgage, charge, or other dealing, or any di, from any mortgage or charge is proposed to be transacted or regi or in respect of which any change of ownership by transmit proposed to be registered or registration abstract issued, to al); a time and place to be appointed in such summons, and gi- explanation concerning such land or any document affecting ti thereto, and to produce any grant, certificate of title, will, mortg other instrument or document in his possessiofi or within his |
| affecting such land or the title thereto ; and the Commissit hereby authorised to examine upon oath (which oath he is empowered to administer) any such proprietor, mortgagee, on person as aforesaid ; and any such proprietor, mortgagee, o person who shall fail, refuse, or neglect to attend the Coal |
38° VICTORIZE, No. 13.
Transfer of Land.
for the purpose of being examined, or to produce any such document, -or to allow the same to be inspected, or shall refuse or neglect to give any such explanation as aforesaid, shall be liable, on any such default, to be summoned before a Judge, and by him to be dealt with as in the case of a contempt of the Supreme Court ; and if the information or document withheld appears to the Commissioner to be material he shall not be bound to proceed with the trans- action.
11 THE Commissioner may from time to time, with the consent Power to make certain rega..
| of the Governor, with the advice aforesaid, make regulations respect- lotions. | ., | |
| mg the parcels of land that may be included in one certificate of title, and may with the like consent repeal or alter such regulations; and he may also, with the like consent, from time to time make such alterations in the several forms in the several schedules hereto as he may deem requisite ; and every form authenticated by the seal of the office shall be taken to be in the legally authorised form, unless the contrary be proved. | ||
| ||
| he exercise of any of the functions by this Act conferred or iniposed | ||
| Other on him or on the Registrar, to state a case for the opinion of Pie Supreme Court, and thereupon it shall be lawful for the Court to give its judgment thereon, and such judgment shall be binding | ||
| u | pon the Commissioner and Registrar respectively. |
13 THE Registrar may exercise the following powers and Powers of Registrar.
| duties ; that is to say :— (i.) He may administer an oath, and may take and receive | To administer oaths, &c. |
the declaration of any person voluntarily making the
same (in this Act called a statutory declaration).
(u.) He shall, upon the direction of the Commissioner, To correct errors, &-o.
correct errors in the register book, or in entries made therein, or in duplicate certificates or instruments, and may supply entries omitted to be made under the pro- visions of this Act ; but in the correction of any such error he shall. not erase or render illegible the original words, and shall affix the date on which such correction was made or entry supplied, and initial the same; and every error or entry so corrected or supplied shall have the like validity and effect as if such error had not been
38° VICTORIA;, No. 13.
Transfer of Land.
made or such entry omitted, except as regards any entry made in the register book prior to the actual time o correcting the error or supplying the omitted entry.
| To enter caveat. | (III.) He 'shall, upon the direction of the Commissioner any person who shall be under the disability of infancy coverture, lunacy, unsoundness of mind, or absence lion | lodge a caveat on behalf of Her Majesty, or on behalf with any land belonging or supposed to belong to am such person, and also to prohibit the dealing with am land in any case in which it shall appear that an erro: has been made by misdescription of such land or other wise in any certificate of title or in any instrument, o: for the prevention of any fraud or improper dealing. |
14 THE Governor may appoint persons to be valuers undo:
| Sworn valuers. | this Act, and at pleasure annul the appointment of any such person |
PART II.—PROCEDURE IN BRINGING LAND UNDER THE
PROVISIONS OF THE ACT.
Crown Lands remaining un- .lb THE grants in fee or for years of all Crown Lands remain alienated to be registered nig unalienated at the time of the commencement of this Act shal under this Act. be delivered, not to the grantee, but to the Registrar, who shal
retain the same, and after payment of the contribution to th assurance fund (in cases *herein such contribution shall be payable register the same in manner hereinafter directed. Such registratio] 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 th grant, and either part of the grant when registered under this Ac shall be sufficient evidence of a duly enrolled grant of the tam therein described to the person therein named on the day of th date thereof.
| As to grants for public pur- | 16 AT the time of the registration of every grant in fee to Or( |
| poses. | or more persons, in joint tenancy for any public purpose, -lb Registrar shall endorse thereon, and on every subsequent certificatf of title, the words " no survivorship," and shall sign his Timm thereto. |
Lands alienated in fee may17 LAND alienated in fee by the Crown before this Act shal be brought under this Act. come into operation may be brought under the operation of this Ac First Schedule by an application in the form in the First Schedule hereto, whicl
38° VICTORI1E, No. 13.
Transfer of Land.
application may be made by any of the following persons; that is
to say
The person claiming to be the owner of the fee simple, either at law or in equity.
(11.) Persons who collectively claim to be the owners of the fee simple, either at law or in equity.
Persons who have the power of appointing or dis- posing of the fee simple.
| (iv.) | The person claiming to be the owner of the first estate Of freehold, if the owner of the first vested estate of inheritance shall consent to the application. |
| (v.) | Trustees for the sale of the fee simple ; but, if any previous consent to their selling be requisite, the persons required to give such consent to consent to the application. |
| (vi.) | The guardian of any infant, or the committee of the estate of any lunatic or person of unsound mind unable to govern his estate, so, however, that the application be made on behalf of such infant, lunatic, or person, and the certificate of title be directed to issue in his name. |
Provided, always, that a mortgagor shall not be entitled to make such application unless the mortgagee shall consent thereto, nor a mortgagee unless for the purpose of the exercise of his power of sale, and unless the certificate of title shall be directed to issue in the purchaser's name; nor a married woman, unless her husband shall consent thereto and the application shall be acknowledged by her in the manner hereinafter mentioned as to the acknowledgment of instruments (except she shall be entitled to the land for her separate use, or has a power to appoint the same). Provided, also, that the attorney of any corporation, howsoever and wheresoever incorporated, whether already constituted or hereafter to be consti- tuted by a power of attorney under a seal purporting to be the common seal .of the corporation giving the power, may make such application for or on behalf of the corporation of which he is the attorney, and may make the requisite declaration to the best of his knowledge, information, and belief, and may subscribe the applica- tion in his own name.
18 THE Registrar shall submit such application and the papers
| to the Commissioner for his direction, and if it shall appear to the How agein | catino on to be | registered |
| Commissioner dealing. | b |
38° VICTORLE, No. 13.
Transfer of Land.
Commissioner that no transaction affecting the land has been regis- tered under any general registration Ordinance or Act concerning the registration of instruments relating to or affecting land, he shall direct the Registrar to bring the land under the operation of this Act forthwith, by registering a certificate of title.
19 IF it shall appear to the Commissioner that any such transaction
| A | n | when | registered deal- | .eg |
And
| ing. | as aforesaid has been registered, and that all encumbrances affecting the land (excepting such as are hereinafter mentioned as not requiring special notification) have been released, or that the owners thereof have consented to the application, or that any encumbrance (not being a mortgage the owner whereof shall not have consented to the application) may be specified in the certificate of title and continue outstanding, the Commissioner shall direct notice of the application to be advertised once at least in one newspaper published in the city of Perth or circulating in the neighbourhood of the land, and to be served on any persons named by him, and shall appoint a time, not less than fourteen days nor more than twelve months from such notice or from the advertisement or the first of such advertisements if more than one, on or after the expiration of which the Registrar shall, unless a caveat shall be lodged forbidding the same, bring the land under the operation of this Act. |
| Service of notices. | 20 THE Registrar shall, under such direction as aforesaid, |
cause notice to be published, in such manner as by such direction may be prescribed, that application has been made for bringing the land under the operation of this Act, and shall cause a copy of such notice to be posted in a conspicuous place in the office, and shall send through the post office a registered letter, marked outside " Office of Titles," containing a copy of such notice, addressed to every person whom the Commissioner shall have directed to be served with notice and to the persons stated in the application to be occupiers of the land, and (unless the land shall be an entire Crown allotment) to the occupiers and owners of the lands contiguous thereto.
| Land to be brought under | 91 IF before the expiration of the time limited in the notice aforesaid for lodging a caveat the Registrar shall not have received a caveat forbidding the bringing of the land in question under the operation of the Act, he shall bring such land under this Act by registering, in the name of the applicant, or in the name of such |
| the Act unless caveat re- | |
| ceived, | |
| Second Schedule. | person–as -may -have been directed in that behalf, a certificate of title to such land in the form in the Second Schedule hereto. |
38° VICTORI2E, No. 13.
Transfer of Land.
| 22 ANY person claiming any estate or interest in the land | t t |
| caveat. in ems e ay ocoe | pl |
described in the advertisement may in person or by agent, before the registration of the certificate, lodge a caveat with the Registrar in the form in the Third Schedule hereto, forbidding the bringing of Third Schedule.
such laud under this Act. Every such caveat shall be signed by the caveator or by his agent, and shall particularize the estate or interest claimed; and the person lodging such caveat shall, if required by the Registrar, support the same by a statutory declaration, stating the nature of the title under which the claim is made, and also deliver a perfect abstract of the title to such estate or interest. No such caveat shall be received unless some address or place within the limits of the city of Perth shall be appointed therein as the place at which notices and proceedings relating to such caveat may be served.
| 23 THE Registrar, upon receipt of such caveat, shall notify the | If caveat be received pro- |
| same to the applicant, and shall suspend proceeding in the matter | ceedings suspended. |
| until such caveat shall have been withdrawn or shall have lapsed as hereinafter provided, or until an order in the matter shall have been obtained from the Supreme Court or a judge. The applicant may, if he think fit, summon the caveator to attend before the Supreme Court or a judge in chambers, to show cause why such caveat should not be removed, and such court or judge may, upon proof that such caveator has been summoned, make such order hi the premises, either ex pane or otherwise, as to such court or judge may seem fit. |
| thereof, such caveat shall be deemed to have lapsed, unless the ceedings taken within one | 24 AFTER the expiration of one month from the receipt caveat to lapse unless pro. |
| within that time have taken proceedings in a court of competent jurisdiction to establish his title to the estate or interest specified in the caveat, and shall have given written notice thereof to the | person' by whom or on whose behalf the same was lodged shall month. or order of the Supreme Court or a judge restraining him from bringing the land under this Act. A caveat shall not be renewed by or on behalf of the same person in respect of the same estate or interest. | |
|
| dpua | at | title adaete n | disi hr |
| persons having in their possession or custody any deeds, instruments, !Ur; | roll07 an application |
or evidences of title relating to or affecting the land the subject bring land under the Act. conditions and for such charge or fee as the judge making the order
of such application, to produce the same at the office of titles to the
38" VICTORI1E, No. 13..
Transfer of Land.
may think just and shall fix. All applications to be made to a judge under this section may be made by summons in chambers by the person applying to have the land brought under this Act, or by the person to whom he may have directed a certificate of title to be issued.
| Applicant may withdraw | 26 AN applicant may withdraw his application at any time |
| his application. | prior to the registration of the certificate, ' and the Registrar shall in such case return to the applicant, or to the person appearing by the application to be entitled thereto, all evidences of title lodged in Support of the application ; but in such case, if the caveator shall have been put to expense without sufficient cause by reason of such application, he shall be entitled to receive from the applicant such compensation as a judge on a summons in chambers shall deem just and order. |
| Documents of title which | 27 UPON registering a certificate of title, the Registrar shall |
| include | other property to be retain in his custody and possession all grants and instruments |
| returned. | evidencing the title of the person registered, and shall endorse upon the last of them, if there be more than one, a' memorandum that the land included in the certificate has been brought under this Act, |
Documents of title whichand shall sign such memorandum. Provided, always, that if any of include other property to such grants or instruments relate to any property other than the be retained. land included in such certificate the Registrar shall return such grant
or instrument to the person from whom he received the same. No person shall be entitled to an inspection of any of such instruments except upon the written order of the person who originally deposited the same, or of some person claiming through or under him or
No action to be brought on upon the order of a judge or of the Commissioner. No actioncovenant to produce docu- ments retained. or suit at law or in equity shall be brought or maintained upon any
covenant or agreement for the production of the documents which shall be so retained, or upon any agreement to give or enter into a covenant for the production thereof; and if any such action or suit shall be commenced it shall be a sufficient answer thereto that such documents have been retained under this Act.
Certificate of title to issue 28 IN case the applicant, or the person hi whose name the
| plicant or his nominee. | in the name of deceased ap- certificate of title has been directed to issue, shall die between the |
application and the registration of the certificate, it shall be registered in the name of such applicant or of such person as the case mat be, and such land shall devolve or pass in like manner as if the certificate had been registered prior to the death of such applicant
or person.
38° VICTORLE, No. 13.
Transfer of Land.
29 LAND leased for a term of years of which ten years are
| unexpired, or leased for years determinable with a life or lives, may | Registration of leaseholds. |
| be brought under the operation of this Act as near as may be in a similar manner and subject to the same or similar provisions as are hereinbefore contained with respect to freehold land. The application may be made by persons having such estates and interests in the leasehold land as are similar or correspondent to the estates and interests of the persons entitled to apply to bring freehold land under this Act. Every certificate of title to leasehold land shall always be subject to the rights and powers of the lessor or his representative, and of any person entitled to the inheritance in the land immediately expectant on the term as well as to the encumbrances hereinafter mentioned as not requiring special notification. The several provisions of this Act with respect to freehold land shall apply to leasehold land, with such variations only as the difference in the nature of such property requires, or as may be necessary to render such provisions applicable to leaseholds for years. |
30 UPON first bringing land under the operation of this Act
| whether by the alienation thereof in fee from the Crown or Percentage in the pound to | • be paid for assurance of title. |
| consequent upon an application as hereinbefore provided, and also | |
| upon the registration of the title to an estate of freehold in land | |
| under the operation of this Act on a transmission., there thall be | |
| paid to the Registrar as an assurance fluid a sum not exceeding the | |
| stun specified in the last Schedule hereto ; and in the case of land | Last Schedule. |
| brought under this Act by alienation in fee from the Crown the price paid for such land shall be deemed to be the value thereof for the purpose of ascertaining such sum ; and in the other cases such value shall be ascertained by the declaration of the applicant or by the statutory declaration of the person deriving such land by transmission. If the Registrar shall not be satisfied of the correctness of the value so declared, he may require such applicant or person to produce a certificate of such value under the hand of a valuer appointed under this Act, which certificate shall be received as conclusive evidence thereof. |
| 31 WHENSOEVER in any memorial received under any | Certain memorials under |
| Ordinance or Act concerning the registration of instruments relating | previous registration Ordi- |
| to or affecting land the instrument purporting to be registered shall | nances to be sufficient evi-dence of conveyances in fee. |
| be stated to be a release or a conveyance or a reconveyance, such memorial may, if the applicant desire it, for the purpose of bringing land under this Act, be deemed by the Commissioner sufficient evidence of the instrument referred to being a conveyance in fee |
38° VICTORI1E, No. 13.
Transfer of Land.
simple of the lands described in such memorial, unless the contrary can reasonably be inferred from the prior or subsequent title, or from something appearing on the face of such memorial. For every memorial which shall be acted on as the evidence of a conveyance in fee there shall be paid -to the assurance fund, in augmentation thereof, an additional sum of One pound.
| Additional indemnity fund | 32 NOTWITHSTANDING anything hereinbefore contained; |
| for imperfect title. | the Commissioner may, after the publication of such advertisements as he may deem fit, direct the Registrar to bring any land under the operation of this Act upon the applicant contributing to the assurance fund, in augmentation thereof, such an. additional sum of money as the Commissioner shall certify under his hand to be , in his judgment a sufficient indemnity by reason of the non-production of any document affecting the title, or of the imperfect nature of the evidence of title, or against any uncertain or doubtful claim or demand arising upon the title. |
The title to land sold under33 AN office copy of any order heretofore made or which shall
| may be deemed sufficient . order shall hereafter be in the form of an order confirming the | an order or decree in equity hereafter be made by the Supreme Court in equity (whether such |
master's report or in any other form) confirming -a person as the purchaser of any land sold in fee simple under or in pursuance- of any decree or order of such court, _together with an office copy of such decree or order and such certificate of payment as is hereinafter mentioned, may, for the purpose of bringing land under this Act, be deemed by the Commissioner sufficient evidence of the title of the purchaser to such land, subject to any estate or interest appearing by the decree or order, or order of confirmation, or subsequently created and registered. Every order of confirmation of a purchase which shall hereafter be made shall be drawn up so as to refer to a Schedule thereto, containing the name and addition of the purchaser and a description of the land purchased by him; and the master. of the Supreme Court is hereby required, after payment and acceptance of all the money payable in respect of any particular purchase, to give upon any such office copy order of confirmation a written certificate that the purchase money, and all interest in respect thereof payable by any purchaser named in such certificate for any land therein referred to, have been wholly paid.
PART III.—REGISTER BOOK—MODE OF REGISTERING AND
EFFECT OF REGISTRATION.
| Certificates of title to be in | 34 CERTIFICATES of title shall be in duplicate, in the form |
| duplicate. |
| Second Schedule. | in the Second Schedule hereto ; and the registrar shall keep a book, |
380 VICTORLE, No. 13.
Transfer of Land.
| to be called the " Register Book," and shall register or enter by | Register Book and entries |
| binding up therein one of the certificates of title, and shall deliver | therein. |
| the other (hereinafter called the duplicate) to the proprietor. Each certificate shall constitute a separate folium of such book, and the registrar shall endorse thereon, in such manner as to preserve their priorities, the particulars of all dealings and matters affecting the land by this Act required to be registered or entered. |
| 35 BEFORE the delivery of any certificate of title, a receipt | Receipts may be required |
| for it, in the handwriting of the proprietor, may be required to be | for certificates. |
| signed by him when practicable, so as to prevent, as far as may be, personation. |
| 36 EVERY certificate of title shall be deemed and taken to be | Certificates of title regis- tered when entered in. the |
| registered under this Act when the Registrar has marked thereon | register book. |
| the volume and folium of the register book in which the same is | |
| entered; and every instrument purporting to affect land under the | |
| operation of this Act shall be deemed and taken to be registered | Instrumentsregisteredwhen memorandum thereof has |
| when a memorandum thereof, as hereinafter described, has been | been entered in register |
| entered in the register book upon the folium constituted by the | book. |
| existing certificate of title; and the person named in any certificate of title or instrument so registered as the proprietor of or having any estate or interest or power, shall be deemed and taken to be the duly registered proprietor thereof. |
| 37 EVERY instrument presented for registration may be in | Instruments may be in du- |
| duplicate (excepting a transfer whereon a new certificate of title is | plicate. |
| required), and shall be registered in the order of and as from the | |
| time at which the same is produced for that purpose ; and instruments | Instruments entitled to pri- |
| purporting to affect the same estate or interest shall, notwithstanding | ority according to date of |
| any actual or constructive notice, be entitled to priority as between | registration. |
| themselves according to the date of registration, and not according to the date of the instrument. Upon the registration of any instru- ment in duplicate the Registrar shall bind up one original in the register book and shall deliver the other (hereinafter called the duplicate) to the person entitled. |
| 38 THE Registrar shall not enter in the register book notice of | No notice of trusts to be |
| any trust, whether express, implied, or constructive: but trusts may | entered in register book. |
| be declared by any document, and a duplicate or an attested copy | |
| thereof may be deposited with the Registrar for safe custody and | Document declaring trusts |
| reference; and the Commissioner, should it appear to him expedient | may be deposited but not |
| so to do, may protect in any way he may deem advisable the rights | registered. |
| of the persons for the time being beneficially interested thereunder, |
38° TICTORTIE, No. 13.
D•ansfer of Land.
or thereby required to give any consent, but the rights incident to any proprietorship or any instrument, dealing, or matter registered under this Act shall not be in any manner affected by the deposit of such duplicate or copy, nor shall the same be registered.
39 EVERY memorandum entered in the register book shall
| Memorandum defined. | state the nature of the instrument to which it relates, the time• of the production of such instrument for registration, the names of the parties thereto, and shall refer by number or symbol to such instrument, and shall be signed by the Registrar. |
| Memorandum to be entered | 40 WHENEVER a memorandum of any instrument has been |
| on duplicate instrument. | entered in the register book the Registrar shall (except in cases wherein the entire land contained in any certificate is transferred) enter the like memorandum on the certificate, and on the duplicate instrument (if any), unless the production of the same shall be dispensed with as hereinafter provided; and he shall endorse on every instrument registered a certificate of the time at which the memo- randum was entered in the register book, and shall authenticate such certificate by signing his name thereto ; and such certificate shall be |
| Certificate of registration to | received hi all courts of law and equity as conclusive evidence that |
| be evidence. | such instrument has been duly registered. |
| Instruments not effectual | 41 NO instrument, until registered in manner herein provided, |
| until registered. | shall be effectual to pass any estate or interest in any land under the operation of this Act or to render such land liable to any mortgage or charge, but upon such registration the estate or interest comprised in the instrument shall pass, or as the case may be the land shall become liable in manner and subject to the covenants and conditions see forth and specified in the instrument or by this Act declared to be implied in instruments- of a like nature ; and should two or more instruments signed by the same proprietor and purporting to affect the same estate or interest be at the same time presented to the Registrar for registration, he shall register and endorse that instrument which shall be presented by the person producing the certificate of title. |
| Proprietor of land entitled | 42 THE proprietor of land under the operation of this Act |
| to certificate of title. |
| If issued to person under | shall be entitled to receive a certificate of title to the same ; and if |
| disability such disability to | any certificate be issued to a minor or to a person under any other |
| be stated. | disability, the Registrar shall state the age of such minor or the nature of the disability, so far as known to him: |
| Persons may be registered |
| as joint tenants, tenants in | 43 TWO or more persons may be registered under this Act as |
| common, or coparceners. | joint tenants, tenants in common, or coparceners of any land. In |
38° VICTORLAE, No. 13.
Transfer of Land.
all cases where two or more persons are registered as tenants hi common, or as coparceners of any land, one certificate for the entirety, or separate certificates for the undivided shares may be issued; but in the case of persons registered as joint tenants, one certificate only shall be issued.
| 44 UPON the transfer of any land, and upon the lease of any | Insertion of the words "no |
| freehold land to two or more persons as joint proprietors with the | prevent other persons than.survivorship" to operate to |
| words " no survivorship" endorsed thereon, the registrar shall enter | those registered dealing with |
| such words in the memorandum of such transfer or lease, and also | the land without an order. |
| upon any certificate of title issued to such joint proprietors pursuant to such transfer, and sign his name thereto. Two or more joint proprietors of any land, or of any such lease, or of any charge, may by writing under their hands direct the Registrar to enter the words "no survivorship" . upon the certificate of title, or instrument relating to the property. In every case after such words shall have been signed by the Registrar, whether under this or any preceding section, it shall not be lawful for any persons other than the proprietors registered to transfer or otherwise deal with the property, without the order of the Supreme Court or a judge thereof, obtained on motion or petition, or the order of the Commissioner. |
| 45 BEFORE making any such order the court or judge or | Wotice to be published be- |
| Commissioner shall cause notice . of the intention so to do to be | fore effect is given to order. |
| advertised once at least hi one newspaper published hi the city ofn Perth or circulating in the neighbourhood of the land, and shall appoint a time within which it shall be lawful for any person interested to show cause against such order being made, after the expiration of which time it shall be lawful for the said court or judge or Commissioner to give directions for the transfer of such land or lease - or charge to any new proprietor or proprietors, solely or jointly with or in the place of any existing proprietor or proprietors, or to make such order in the premises as shall be just for the protection of any persons beneficially interested hi such property or hi the proceeds thereof; and on such order being deposited with the Registrar he shall make such entries and perform such acts forgiving effect thereto as the provisions of this Act may render necessary. |
| 46 NO certificate of title registered and granted under this | Certificate to be conclusive |
| Act shall be impeached or defeasible by reason or on account | evidence of title. |
| of any informality or irregularity in the application for the same or in the proceedings previous to the registration of the certificate; and every certificate of title issued under any of the |
38° VICTORIT, No. 13.
Transfer of Land.
provisions herein contained shall be received in all courts of law and equity as evidence of the particulars therein set forth, and of the entry thereof in the register book, and shall be conclusive evidence that the person named in such certificate as the proprietor of or having any estate or interest in or power to appoint or dispose of the land therein described is seised or possessed of such estate or interest or has such power.
Certificate to be conclusive47 IN any suit for specific performance or action at law for evidence in suit for specific damages brought by a proprietor of any land under the operation of performance or action for this Act against a person who may have contracted to purchase suchdamages.
land not having notice of any fraud or other circumstances which according to the provisions of this Act would affect the right of the vendor, the certificate of title of such proprietor shall be held to be. conclusive evidence that such proprietor has a good and valid title to the land for the estate or interest therein mentioned or described,.
and shall in any such suit'entitle such proprietor to a decree for the
specific performance of such contract.
| Estate of registered proprie- | 48 NOTWITHSTANDING the existence in any other person |
| tor paramount. | of any estate or interest, whether derived by grant from the Crown or otherwise, which but for this Act might be held to be paramount or to have priority, the proprietor of land or of any estate or interest in land under the operation of this Act shall, except in case of fraud, hold the same subject to such encumbrances as may be notified on the folium of the register book constituted by his certificate of title, but absolutely free from all other encumbrances whatsoever; except the estate or interest of a proprietor claiming the same land under a prior registered certificate of title, and except as regards any portion of land that may by wrong description of parcels or boundaries be included in the certificate of title, or instrument evidencing the title of such proprietor not being a purchaser for valuable consideration or deriving from or through. |
| Certain rights and interests | such a purchaser. Provided, always, that the land which shall be |
need not be specially men- included in any certificate of title or registered instrument shall be
tioned as encumbrances.
deemed to be subject to the reservations, exceptions, conditions, and powers (if any) contained in the grant thereof, and to any rights subsisting under any adverse possession of such land, and to any public rights of way and to any easements acquired by enjoyment or user, or subsisting over or upon or affecting such land; and to any unpaid rates and assessments, and also, where the possession is no' adverse, to the interests of any tenant of the land, notwithstandinf the same respectively may not be specially notified as encumbrance. on such certificate or instrument.
38° VICTORI1E, No. 13.
Transfer of Land.
49 EXCEPT in the case of fraud, no person contracting or Purchaser from registered
| dealing with or taking or proposing to take a transfer from the proprietor not to be affected | by |
| p | roprietor of any registe | red land, lease, mortgage, or c | ha | rge shall be notice. |
required or in any manner concerned to enquire or ascertain .the circumstances under or the consideration for which such proprietor
or any previous proprietor thereof was registered, or to see to the
application of any purchase or consideration money, or shall be affected by notice, actual or constructive, of any trust or unregistered interest, any rule of law or equity to the contrary notwithstanding ; and the knowledge that any such trust or unregistered interest is in existence shall not of itself be imputed as fraud.
| 50 THE person named in any certificate of title as the As to | reversions | expectant |
| proprietor of an estate of freehold in possession in the land therein rdea | o | s„. |
| described shall be held in every court of law and equity to be seised of the reversion and inheritance in the land immediately expectant upon the term of any lease that may be mentioned as an encumbrance in such certificate, and to have all powers, rights, and remedies to which such a reversioner is by law entitled, and shall be subject to all the covenants and conditions in such. lease to be performed and observed by or on the part of the lessor. |
| 51 ANY person claiming to have acquired by transmission' . | Devisee may apply 'to be |
furnish such evidence as may be deemed necessary to prove his title by transmission. Such application shall state the nature of every interest held by any other person at law or equity hi the land within the applicant's knowledge, and that he verily believes himself to be entitled to the estate in or power over such land, subject or not to encumbrances, as the case may be, in respect to which he applies to be registered, and shall also state the value of the property. The person making such application shall deliver up the certificate of title prior to his being entered in the register book as the proprietor.
any estate of freehold in possession hi land that has been brought registered as proprietor.
under the operation of this Act, or a power to appoint, transfer,
or dispose of the same, may make application in writing to the
| the Commissioner, who may either reject such application altogether to commissioner. | 52 SUCH application, with the papers, shall be submitted to Application to be referred |
or direct notice thereof to be published once at least in one newspaper Notice to be published.
published in the city of Perth or circulating hi the neighbourhood
of the land, and such further publicity to be given to such application
as . he may deem fit; and the Commissioner shall in the said notice
appoint a time (not less than fourteen days from the advertisement,
38° VICTOM2E, No. 13.
Transfer of Land.
or the first of such advertisements if more than one) upon or after which the Registrar shall, unless a caveat shall be lodged forbidding the same, register such applicant as the proprietor of such land or estate by entering in the register book the particulars of the trans- mission through Which such applicant claims, and by registering, a certificate of title to the land or estate so transmitted. Upon such entry being made the applicant shall become the transferee of such land or estate, and be deemed to be the proprietor thereof. Provided, always, that the person registered consequent on such direction shall hold such land or estate for the purposes for :which it may be applicable by law, but for the purpose of any dealings therewith under the provisions of this Act he'shall be deemed to be the absolute proprietor thereof. The Commissioner may direct a caveat to be entered by the Registrar for the protection of the interests of any other persons interested in Such land or estate.
| Remainderman orreversion- | 53 ANY person claiming to have acquired any remainder, |
| tered as such. |
| er may apply to be regis- | reversion, or other future interest by transmission may apply to be registered as so entitled, in like manner and supported by the like evidence, as near as may be, as is herein provided with |
| Application to be referred. | respect to a person claiming to have acquired an estate of free- hold in possession by transmission. Such application shall be dealt with in the like manner as is mentioned in the last preceding section, and any entry made thereupon shall have the same effect, and the person registered shall hold the laud for the same purposes, and shall have the same powers as is and are mentioned hi such section. If there shall be any doubt, dispute, or litigation under this or under either of the last two preceding sections as to the true construction or legal validity or effect of any will or settlement relating to any freehold land or estate, or if the person entitled under any of the provisions of this Act to any land or estate under any will, settlement, or instrument cannot be ascertained, the Supreme Court sitting in the exercise of its equitable jurisdiction may appoint a person to he. registered as the representative of such land or estate ; and suchperson, when registered, shall become the transferee, and be deemed |
| to be the proprietor thereof for the purposes of this Act, subject, however, to any directions which shall from time to time be given by the court sitting as aforesaid touching the disposition thereof or the-dealing therewith. |
| Upon surrender of existing | 54 ON the application of any proprietor or of any person |
| certificates asingle certificate | entitled to become a proprietor of land under separate certificates of |
| may be obtained. | title, and on his delivering up the duplicates thereof, the Registrar |
| may issue to him a single certificate of title for the whole of such |
38° VICTORIA, No. 13.
Transfer of Land.
land, or several certificates as to portions thereof, in accordance with such application, so far as the same may be done consistently with. any regulations for the time being in force respecting the parcels of land that may be included in one certificate of title ; and upon registering any certificate under this section the Registrar shall cancel the previous certificate, and shall endorse thereupon a memorandum, setting forth the occasion of such cancellation and referring to the new certificate.
| 55 SUCH references shall be noted in the register book, and on A | histor | f | carious |
| instruments filed hereunder as will allow the title to be traced either dealings | s to | ffecti:Onabe | o | o |
downwards from or upwards to the original certificate or grant ; but preserved..
it shall not be necessary, in any certified copy of any certificate, grant,
or instrument, to insert such references ; and every such copy shall be
deemed complete, notwithstanding the omission of such references.
| 56 UPON production of a receipt of the Treasurer of the Colony Dealings may | be | Cregistered |
| for the full purchase money of any land sold by the Crown in fee, together with an instrument dealing with such land, signed by the grant. | prior to issue orown | f |
| purchaser; the Registrar shall endorse upon such receipt such memorandum as he is herein required to enter in the register book upon the registration of any dealing of a like nature with land registered, and shall sign such endorsement, and shall endorse such instrument with the certificate of registration herein required on the registration of a like instrument after a grant relating to land under the operation of this Act has been registered, and so on from time to time with respect to any other dealings before the registra- tion of a certificate aft'. title to such ; and every such instrument shall thereupon be held to be duly registered under this Act. The Registrar shall file such receipt and instrument in the office, and upon the registration of a certificate of title to the land he shall enter thereon a memorandum of every dealing endorsed on such receipt, and issue a certificate of title to the then transferee of the land (if any). |
57 THE proprietor of land or of a lease, mortgage, or charge, Transfers.
or of any estate, right, or interest therein, respectively, may transfer
the same by a transfer in one of the forms in the Fourth Schedule Fourth schedule.
hereto ; and a woman entitled to any right or contingent right to
dower in or out of any freehold land shall be deemed a proprietor
within the meaning hereof. Upon the registration of the transfer
the estate and interest of the proprietor, as set forth in such instru-
ment, or which he shall be entitled or able to transfer or dispose of
under any power, with all rights, powers, and privileges thereto
38° VICTORI}E, No. 13.
Transfer of Land.
belonging or appertaining, shall pass to the transferee; and such transferee shall therereupon become the proprietor thereof, and whilst continuing such shall be subject to and liable for all and every the same requirements and liabilities to which he would have been subject and liable if he had been the former proprietor, or the original lessee, mortgagee, or annuitant.
| Transfer to include right to | 58 BY virtue of every such transfer as is herein mentioned, the |
| sue thereunder. | right to sue upon any mortgage or other instrument, and to recover any debt, sum of money, annuity, or damages thereunder (notwith- standing the same may be deemed or held to constitute a chose in action), and all interest in any such debt, sum of money, annuity, or damages, shall be transferred so as to vest the same at law as well as |
:crittlAni7:reV:tetrs in equity in the transferee thereof. Provided, always, that nothing herein contained shall prevent a court of equity from giving effect to any trusts affecting such debt, sum of money, annuity, or damages in case the transferee shall, as between himself and any other person, hold the same as a trustee.
| Proprietor may vest estate | 59 THE proprietor of land or of any estate or interest in land |
| jointly in himself and others |
| without limiting any use Sze. | under the operation of this Act, whether of the nature of real or personal property, may transfer such land, estate, or interest to his wife, or if such proprietor be a married woman it shall be lawful for her to make such transfer to her husband, or it shall be lawful for such proprietor to make such transfer directly to himself and another person, or if seized or possessed jointly with any other person then jointly with such person to himself alone, or to create or execute any power of appointment or disposition, or to create or limit estates in remainder or otherwise as legal estates of or concerning land the subject thereof without the intervention of any precedent or particu- lar estate, and also like estates as legal estates without the employ- ment or intervention of any form of use ; and upon the registration of such transfer the land, estate, or interest shall vest in the transferee solely or jointly as the case may be, or in the person in whose favor any such power may have been executed or who may take under any such limitation or otherwise, according to the intent and meaning of such instrument, and she, he, or they shall become and be deemed the proprietor or proprietors thereof. |
| Instruments when signed | 60 EVERY instrument executed by a married woman under |
| and registered to have the | this Act shall be executed and acknowledged by her in the same |
| same efficacy as a deed ac- | |
| knowledged, but married | manner as any deed or other instrument is at the date of the passing |
| women to acknowledge in- | of this Act required to be executed or acknowledged by her. And |
| struments signed by them. | the person attesting such execution or taking such acknowledgment |
38° VICTORI.X, No. 13.
Transfer of Land.
shall endorse on such instrument a certificate under his hand of such execution and acknowledgment. Provided, always, that a married woman entitled to her separate use, and not restrained from antici- pation or having a power of appointment, shall for the purposes of this Act be deemed aflame sole.
| 61 IF the transfer purports to transfer the whole or part of the | Certificate of title to be de- livered up and cancelled so |
| land mentioned in any certificate of title, the transferor shall deliver | far as regards the portion of |
| up the certificate, and the Registrar shall, after registering the | land transferred ; and fresh certificate to be issued to |
| transfer, endorse on the certificate a memorandum cancelling the | purchaser, and a certificate |
| same, either wholly or partially, according as the transfer purports | for the part untransferredto be issued to proprietor |
| to transfer the whole or part of the land; and the duplicate of any | when demanded. |
| wholly cancelled certificate shall be retained by him, and the duplicate of any partially cancelled certificate shall be returned, endorsed as aforesaid, to the transferor; and the Registrar shall make out to the transferee a certificate of title to the land mentioned in. such transfer, and whenever required by the proprietor of the untransferred portion shall make out to such proprietor a certificate of title to such portion. Provided, always, that if the land be leasehold 'the lease and duplicate shall not be cancelled, and the latter document, instead of being retained, shall be delivered to the | |
| transferee. |
62 IN every transfer of land under the operation of this Act,
| subject to a mortgage or charge there shall be implied a covenant | Transferee of land subject to encumbrance to indem- |
| with the transferor by the transferee binding the latter and his | nify transferor. |
| heirs, executors, administrators, and transferees that he or they will pay the interest secured by such mortgage, after the rate and at the times and in the manner therein specified; and will pay the annuity at the times and in the manner specified in the charge, and will indemnify and keep harmless the transferor and his representatives from and against the principal sum secured by the mortgage, and from and against all liability in respect of any of the covenants therein contained or by this Act declared to be implied therein on the part of the transferor. |
63 WHENEVER any transfer or lease of freehold land shall
| contain the words " Together with a right of carriage way over | Creation of easements. |
" [specifying or describing the road or roads over which
the easement is created, and referring to a map endorsed whereon such road or roads is or are colored ], such words shall have the same
| effect .and be construed as if there had been inserted in such transfer | Fifth Schedule. |
| or lease the words contained in the Fifth Schedule hereto. A | Memorandum of easements |
| memorandum of any transfer or lease creating any easement over or | to be registered. |
38° VICTORIA, NO. 13.
Transfer of Land.
upon or affecting any land under the operation of this Act shall be entered on the folium of the register book constituted by the existing certificate of title of such land, in addition to any other entry concerning such instrument required by this Act.
64 EVERY certificate of any person or corporation sole or
| Words of inheritance or aggregate being the proprietor of an estate in fee simple, whether in | succession to be implied. |
possession, remainder, or reversion, and every instrument transferring or creating such an estate to or in favor of any person or corporation shall imply and be deemed to include the heirs of such person or the successors of such corporation.,
65 THE proprietor of any freehold land under the operation of
| Leases of land. | this Act may lease the same for any term exceeding three years by |
| Sixth Schedule. | signing a lease thereof in the form in the Sixth Schedule hereto, but no lease of any laud subject to a mortgage or charge shall be valid or binding against the mortgagee or annuitant unless he shall have consented in writing to such lease prior to the same being registered. |
66 IN every lease made under the provisions of this Act there
| every lease against the les- | Covenants to be implied in shall be implied the following covenants with the lessor and his |
| see. transferees by the lessee binding the latter and his heirs, executors, |
administrators, and transferees (that is to say)
(i.) That he or they will pay the rent reserved by the lease at the times therein mentioned, and all rates and taxes which may be payable in respect of the leased property during the continuance of the lease,. unless otherwise provided by law.
(fr) That he or they will keep and yield up the leased property in good and tenantable repair, accidents and damage from storm and tempest, and reasonable wear and tear excepted.
67 IN every lease made under this Act there shall also be (r.) That he or they may, with or without surveyors, workmen-, or others, once in every year during the term at a reasonable time of the day enter upon the leased pro- perty and view the state of repair thereof.
| Powers to be implied | in implied in the lessor and his transferees the following powers; (that |
| lessor. | is to say) |
| (a) | That in case the rent or any part thereof shall be in arrear for the space of one month, although no legal or |
38° HUMBLE, No. 13.
Transfer of Land.
formal demand shall have been made for payment thereof, or in case of any breach or non-observance of any of the covenants expressed in the lease or by this Act declared to be implied therein on the part of the lessee or his transferees, and such breach or non-observance continu- ing for the space of one month, it shall be lawful for the lessor or his transferees to re-enter upon and take possession of the leased property.
| lessee shall employ any of the forms of words contained in column b lessees. | 68 WHENEVER in any lease made under this Act the Sybort forms of covenants |
One of the Seventh Schedule hereto, and distinguished by any number
therein, such lease shall be taken to have the same effect and be Seventh Schedule.
construed as if he had inserted therein the form of words contained
in column two of the same Schedule and distinguished by the
corresponding number ; and every such form shall be deemed a
covenant with the lessor and his transferees by the lessee binding
the latter and his heirs, executors, administrators, and transferees,
but it shall not be necessary in any such lease to insert any such
number. There may be introduced into or annexed to any of the
forms in the first column any express exceptions from or express
qualifications thereof respectively, and • the like exceptions or
qualifications shall be taken to be made from or in the corresponding
forms in the second column.
| 69 IN every transfer of a lease made under this Act and in | Covenant to be implied on |
every transfer of a grant for years, there shall be implied a covenant transfer of lease.
with the transferor by the transferee binding him and his heirs,
executors, administrators, and transferees that he or they will
thenceforth pay the rent by the lease or grant reserved, and perform
and observe all the covenants contained in the lease or grant or by
this Act declared to be implied in the lease and on the part of the
lessee or his transferees to be performed and observed, and will
indemnify and keep harmless the transferor and his representatives
against all actions, suits, claims, and expenses in respect of the
non-payment of such rent, or the breach or non-observance of such
covenants or any of them.
70 THE Commissioner, upon proof to his satisfaction of Recovery of possession by
recovery of possession by a lessor or his transferees by any legal pro- lessor to be entered in regis-
ceeding may direct the Registrar to make an entry of the same in ter book'
the register book, and the term for which the land was leased shall
upon such entry being made determine, but without prejudice to
any action or cause of action which shall previously have been coin-
38° VICTORLE, No. 13.
Transfer of Land.
menced or have accrued in respect of any breach or non-observance of any covenant expressed in the lease, or by this Act declared to be implied therein.
| Mortgagee of the interest of | 71 UPON the bankruptcy of the proprietor of any lease made |
| ply to be entered as trans- |
| a bankrupt lessee may ap- | under this Act, subject to one mortgage only, or to several mortgages | |
| feree of the lease and on | if owned by the same person, the Registrar, on the application in | |
| default lessor may apply. | writing of the mortgagee or his transferees, accompanied by a statement signed by the trustee of such bankrupt refusing to accept such lease, shall enter in the register book a note of such refusal, and such entry shall operate as a foreclosure and as a transfer of the interest of the bankrupt in such lease to the mortgagee or his transferees; and if he or they shall neglect or refuse to make such application as aforesaid within forty-two days after notice in writing in that behalf from the lessor or his transferees shall have been Served on the mortgagee or his transferees, by being given to him or them or by being sent through the post office by a registered letter directed to him or them at his or their address as stated in the mortgage or transfer thereof, the Registrar, on the application in writing of the lessor or his transferees to be registered as surrenderee or sur- | |
|
| Lease may be surrendered | 72 A LEASE made under this Act may be surrendered and |
| by endorsement by lessee |
| with concurrence of lessor. | determined, as well by operation of law or under any Ordinance or statute now or hereafter to be in force relating to 'bankrupts and their estates as by the word " surrendered," with the date, being endorsed upon such lease or on the duplicate thereof (if any), and signed by the lessee or his transferee, and by the lessor or his trans- feree, and attested by a witness. The Registrar shall enter in the register book a memorandum recording the date of such surrender, and shall likewise endorse upon the duplicate (if any) a memoran- dum recording the fact of such entry having been made. Upon such entry in the register book, the estate and interest of the lessee or his transferee shall vest hi the lessor, or in the proprietor for the time being of the reversion and inheritance hi the land immediately expectant on the term; and production of such lease or duplicate (if |
38° YICTORI}E, No. 13.
Transfer of Land.
any) bearing such endorsement and memorandum shall be sufficient evidence that such lease has been legally surrendered. Provided that no lease subject to a mortgage or charge shall be so surrendered without the consent in writing of the proprietor thereof.
| 73 THE proprietor of any land under the operation of this Act | Mortgages and charges. |
| may mortgage the same by signing a mortgage thereof in the form | Eighth Schedule. |
| hi the Eighth Schedule hereto, and may charge the same with the | |
| payment of an annuity by signing a charge thereof in the form hi | Ninth Schedule. |
| the Ninth Schedule hereto. |
| 74 A MORTGAGE and a charge under this Act shall, when | Mortgage or charge not to |
registered as hereinbefore provided, have effect as a security, but operate as transfer.
| shall not operate as a transfer of the land thereby mortgaged or | charged: and hi case default be made in payment of the principal Procedure in case of default. |
| sum, interest, or annuity secured or any part thereof respectively, or in the performance or observance of any covenant expressed.. hi any mortgage or charge, or hereby declared to be implied hi any mortgage, and such default be continued for one month or for such other period of time as may therein for that purpose be expressly fixed, the mortgagee or annuitant, or his transferees, may serve on the mortgagor ; or grantor, or his transferees, notice hi writing to pay the money owing on such mortgage or charge, or to perform and observe the aforesaid covenants (as the case may be) by giving such notice to him or them or by leaving the same on some con- spicuous place on the mortgaged or charged land, or by sending the same through the post office by a registered letter directed to the then proprietor of the land at his address appearing in the register book. |
| 75 IF such default in payment or in performance or observance | Power to sell. |
of covenants shall continue for one month after the service of such notice, or for such other period as may in such mortgage or charge be for that purpose fixed, the mortgagee or annuitant, or his transferees, may sell the land mortgaged or charged, or any part thereof, either altogether or in lots by public auction: or by private contract, and either at one or at several times, and subject to such terms and conditions as may be deemed fit, and may buy in or vary or rescind any contract for sale and resell hi manner aforesaid, without being liable to the mortgagor or grantor for any loss occasioned thereby, and may make and sign such transfers and do such acts and things as shall be necessary for effectuating any such sale, and no purchaser shall be bound to see or enquire whether such default as aforesaid shall have been made or have happened
38° VICTORUE, No. 13.
Transfer of Land.
or have continued, or whether such notice as aforesaid shall have been served, or otherwise into the propriety or regularity of any such sale.
| Application of purchase mo- | 76 THE purchase money arising from the sale of the mortgaged |
| ney. | or charged land shall be applied as follows:— |
If the sale be by the mortgagee or his transferees
First, in payment of the expenses of and incidental to such sale and consequent on such default; secondly, in payment of the moneys which may be due or owing on the mortgage; thirdly, in payment of subsequent mortgages and of any money which may be due or owing in respect of any subsequent charge in the order of their respective priorities ; and the surplus (if any) shall be paid to the mortgagor. Provided, always, that if the sale be made by a mortgagee or his transferees, and there is a subsequent charge, the purchase moneys, after there shall have been made thereout all proper prior payments, shall be deposited by him or them in the manner and names and for the purposes correspond- ing with those after mentioned.
If the sale be by the annuitant or his transferees
First, in payment of the expenses of and incidental to such sale and consequent on such default; then in payment of the moneys which may be due or owing to the annuitant or his transferees ; and the residue shall be deposited by him or them at interest in the Post Office Savings' bank, or in some other bank in Perth, in the joint names of the annuitant or his transferees and of' the Registrar, to satisfy the accruing payments of the
charge and subject thereto, for the benefit of the parties. who may be or become entitled to the residue of the deposited money.
77 UPON the registration of any transfer signed by a
| 'Registrar to give effect to mortgagee or annuitant, or his transferees, for the purpose of such | sale by mortgagee or annui- | |
|
38° VICTORIA, No. 13.
Transfer of Land.
purchaser, freed and discharged from all liability on account of such mortgage or charge, and of any mortgage, charge, or encumbrance registered subsequent thereto, excepthig a lease to which the mortgagee or annuitant or his transferees shall have consented in writing ; and the purchaser, when registered as the proprietor, shall be deemed. a transferee of such land, and shall be entitled to receive a certificate of title to the same.
| 73 THE mortgagee or annuitant, or his transferees, upon | In case of default mortgagee |
| default in payment of the principal sum or interest or annuity, or | or annuitant may enter andtake possession or may dis- |
| any part thereof respectively, at the time mentioned in the mortgage | train. |
| or charge, may enter into possession of the mortgaged or charged | |
| land by receiving the rents and profits thereof, and may distrain | |
| upon the occupier or tenant of the land under the power to distrain | |
| hereinafter contained, or may bring an action of ejectment to | |
| recover the land either before or after entering into the receipt of the | for ejectment or may fore-Mortgagee may bring action |
| rents and profits thereof or making any distress, and either before or | close right of redemption. |
| after any sale of such land shall be effected under the power of sale aforesaid, in the same manner in which he or they might have brought such action if the mortgage money or annuity had been secured to him or them by an assurance of the legal estate in the land mortgaged or charged; and any mortgagee or his transferees shall be entitled to foreclose the right • of the mortgagor or his transferees to redeem the mortgaged land in manner hereinafter provided. |
| 79 BESIDES his other remedies, every mortgagee or annuitant | Mortgagee or annuitant may |
| for the time being, and every transferee of a mortgage or charge | distrain on tenant or occu- |
| for the time being, shall be entitled, as often as it shall happen that | ing the amount of rent duepier for arrears not exceed- |
| the interest or annuity or any part thereof respectively shall be in | by such tenant or occupier. |
| arrear for twenty-one days and after seven days shall have elapsed | |
| from an application to the occupier or tenant for the payment | |
| thereof, to enter upon the mortgaged or charged land and distrain | |
| the goods and chattels of such occupier or tenant for the arrears of | |
| the said interest or annuity, and the distress and distresses then and | |
| there found to dispose of in like manner as landlords may do in | |
| respect of distresses for rent reserved upon common demises, and out | |
| of the sale moneys to retain the moneys which shall be so in arrear | |
| and all costs and expenses occasioned by such distress and sale. | |
| Provided that no occupier or tenant shall be liable to pay to any | No occupier or tenant liable for greater sum than the |
| such mortgagee or annuitant or transferee a greater sum than the | amount of rent actually |
| amotmt of rent which at the time of making such application for | owing by him. |
| payment shall be due from such occupier or tenant; and any amount so paid, as well as any amount which shall be paid by him |
| 38° V1CTORI | No, 13. |
Transfer of Land.
to any such mortgagee or annuitant or transferee during the time he may be in the receipt of the rents and profits, shall be held to be
pro tanto satisfaction of the tent. And provided, also, that if there
be more than one mortgage or charge on any land, the mortgagees or annuitants shall be entitled to exercise the remedy given by this section according to their priorities.
80 IN every mortgage made under the provisions of this Act
| every mortgage. | Covenants to be implied in there shall be implied covenants with the mortgagee and his |
transferees by the mortgagor binding the latter, and his heirs, executors, administrators, and transferees that he or they will pay the principal Money therein mentioned on the day therein appointed, and will, so long as the principal money or any part thereof shall remain unpaid, pay interest thereon or on so much thereof as shall for the time being remain unpaid, at the rate and on the days and in manner therein specified; also, that he or they will repair and keep in repair all buildings or other improvements which shall have been or shall be erected or made upon the mortgaged land, and that the mortgagee and his transferees may at all reasonable times, until such mortgage be redeemed, enter into and upon such land with or without surveyors or others to view and inspect the state of repair of such buildings or improvements.
81 A MORTGAGEE of or annuitant upon land, leased under
| leasehold entering mto pos- land or the receipt of the rents and profits thereof, shall during suchsession to become liable to | Mortgagee or annuitant of this Act, and his transferees, after entering into possession of the | |
|
82 WHENEVER in any mortgage made under this Act the
| mortgagor to insure. | Short form of covenant by mortgagor shall employ the form of words contained in column one |
of the tenth Schedule hereto, such mortgage shall be taken to have
Tenth Schedule. the same effect and be construed as if he had inserted therein the
form of words contained in column two of the same Schedule; and every such form shall be deemed a covenant with the mortgagee and his transferees by the mortgagor binding the latter and his heirs, executors, administrators, and transferees. There may be intro- duced into or annexed to the said form in the first column any
38° ITICTORI}E, No. 13.
Transfer of Land.
express exception from or express qualification thereof, and the like exception or qualification shall be taken to be made from or in the form hi the second column.
83 IN addition to and concurrently with the rights and powers Certain qualities of the legal
| conferred on mortgagees and on transferees of mortgagees by | estate annexed to a mort- |
upon any such land shall, until a discharge from the whole of the money secured, or until a transfer upon a sale or an order for foreclosure (as the case may be) shall have been registered, have the same rights and remedies at law and in equity (including proceedings before Justices of the Peace) as he would have had or been entitled to if the legal estate in the land or term mortgaged had been actually vested in him, with a right in the mortgagor of quiet enjoyment of the mortgaged land until default hi payment of the principal and interest money secured or some part thereof respectively, or until a breach in the performance or observance of some covenant expressed in the mortgage or to be implied therein by the provisions of this Act. Nothing contained in this section shall affect or prejudice the rights or liabilities of any such mortgagee or trans- feree after an order for foreclosure shall have been entered in the register book, or shall, until the entry of such an order, render a mortgagee of a lease made under this Act, or the transferee of his mortgage, liable to or for the payment of the rent reserved by the lease or for the performance or observance of the covenants expressed or to be implied therein.
this Act, every mortgagee for the time being of land under this gage'
84 A MORTGAGOR or his transferee shall not, either before Mortgagor not to sue at law
| or after such default or breach as aforesaid, commence hi his own for the same cause of action | without a written consent. |
| name any action at law for or in respect of any cause of action for which a mortgagee or his transferee may sue under the last preceding section without obtaining the previous consent in writing of such mortgagee or transferee, or his agent, to the commence- ment of such action, after giving which consent such mortgagee or transferee shall not be entitled-to bring in his name any action at law in respect of the cause of action specified in such consent. If a mortgagor or his transferee shall bring any such action in his own name, and the defendant shall prove the existence of a mortgage, the plaintiff shall not be nonSuited, nor shall there be a verdict against him if he prove in reply that the action was brought with the written consent of the mortgagee, or of the transferee of his mortgage, or his agent. |
38° VICTORLE, No. 13.
Transfer of Land.
| tained- from suits by the mortgagor or his transferee under any decree or order in any suitApplication of moneys ob- | 85 Any sum of money which shall become payable to the |
mortgagor. by him in the Supreme Court in equity, for or on account of any
waste or damage of or to the land. mortgaged shall be paid to the first mortgagee or his transferee, in reduction or satisfaction of the moneys secured ; and if he shall not be willing to receive the same, or shall thereby be fully paid off, the same or the balance shall be paid to any subsequent mortgagee or his transferee, according to priority, hi like reduction or satisfaction ; and if no mortgagee or his transferee shall be willing or be entitled to receive the same, then to the mortgagor or his transferee for his own benefit.
| Application of moneys ob. after judgment or execution obtained in any action at law broughttabled from actions by the | 86 ANY mortgagee or his transferee may, either before or |
mortgagor. by the mortgagor or his transferee, apply to a Judge for a summons
in such action, calling on the plaintiff and defendant, or their attorneys or agents, to attend before a judge and show cause why any sum beyond twenty-five pounds which shall have been or shall be recovered for damages in such action, or which shall become payable on the settlement thereof, should not be paid to such persons and for such purposes as are hereinbefore mentioned with respect to money payable under any decree or order . in any suit in equity by the mortgagor or his transferee; and the judge hearing the summons shall determine the matter thereof in a summary manner, and shall make such order therein, as to costs and all other matters as may appear to be just and reasonable, and the decision of such judge shall be final and conclusive against all parties. Pro- vided, always, that every order made hi pursuance of this section shall be liable to be rescinded or altered by the Court in like manner as other orders made by a single judge. The sheriff or other officer. who shall have the execution of any writ of fieri .facias issued in such action shall, on being served with a copy of such order, obey the same.
in possession, remainder, reversion, or otherwise on a transmission,
or in any other application to be registered under this Act, as
proprietor of any land, lease, mortgage, or charge, or suppresses or
conceals or assists, or joins in or is privy to the suppressing, with-
holding, or concealing from the Commissioner or Registrar any
material document, fact, or matter of information, or wilfully makes
ally false statutory declaration required under the authority or made
in pursuance of this Act, or if any person in the course of his
examination before the Commissioner wilfully and corruptly gives
false evidence, or if ally person fraudulently procures, assists in
fraudulently procuring, or is privy to the fraudulent procurement of
ally certificate of title or instrument, or of any entry in the register
book, or of any erasure or alteration in any entry h i the register
book, or knowingly misleads or deceives any person hereinbefore
authorised to require explanation 'or information ill respect to any
land or the title to any land under the operation of this Act, or in
respect to which any dealing or transmission is proposed to be
registered, such person shall be guilty of a misdemeanor, and shall
incur a penalty not exceeding Five hundred pounds, or may, at the
discretion of the Court by which lie is convicted, be imprisoned with
or without hard labor for any period not exceeding three years ; and
any certificate of title, entry, erasure, or alteration so procured or
made by fraud shall be void as against all parties or privies to such
fraud.
38° VICTORLE, No. 13.
Transfer of Land.
| Forgery to be a felony. | 139 IF any person is guilty of the following offences, or any of |
them; that is to say :
(r.) Forges, or procures to be forged, pr assists in forging the seal of the office of titles, or the name, signature, or handwriting of any officer in cases where such officer is by this Act expressly or impliedly authorised to affix his signature ;
(ii.) Stamps, or procures to be stamped, or assists in stamp- ing any document with any forged seal purporting to be of the office of titles ;
Forges, or procures to be forged, or assists in forging the name, signature, or handwriting, of any person whomsoever to any instrument which is by this Act or in pursuance of any power contained in this Act expressly or impliedly authorised to be signed by such person.
(iv.) Uses, with an intention to defraud any person whom- soever, any document upon which an impression or part of the impression of the seal of the office has been forged, knowing the same to have been forged, or any document the signature of which has been forged, knowing the same to have been forged;
such person shall be guilty of felony.
| Punishment of felony. | 140 ANY person convicted of felony under this Act shall be |
liable to imprisonment for any term not exceeding three years, and to be kept to hard labor for the whole or any part of the period aforesaid, or be kept in penal servitude for any term not exceeding fourteen or less than three years.
Conviction not to affect 141 NO proceeding or conviction for any act hereby declared to
civil remedy. be a misdemeanor or a felony shall affect any remedy which any
person aggrieved or injured by such act may be entitled to at law or in equity against the person who has committed such act, or against his estate.
142 NOTHING in this Act contained shall entitle any person
| Obligation | to | make | disco- |
| very not excluded, | to refuse 'to Make a complete discovery by answer to any bill in equity, or to answer any question or interrogatory in any civil proceeding in any court of law or equity or bankruptcy ; but no answer to any such bill, question, or interrogatory shall be admissible in evidence against such person in any criminal proceeding. |
38° VICTORIA;, No. 13.
Transfer of Land.
143 UNLESS in any case herein otherwise expressly provided, Jurisdiction.
all offences against the provisions of this Act may be prosecuted, and all penalties or sums of money imposed or declared to be due or owing by or under the provisions of the same, may be sued for and recovered in the name of the Attorney-General by information in the Supreme Court.
of land under any grant to transfer or otherwise deal with such land144 NOTHING contained in this Act shall enable any lessee
contrary to the Regulations for the sale, letting, disposal, and
occupation of Waste Lands of the Crown in Western Australia.
In the name and on behalf of the Queen I hereby assent to
this Act.
FRED. A. WELD, Governor.
38° VICTORIA, No. 13.
Transfer of Land.
SCHEDULES.
First Schedule.
WESTERN AUSTRALIA.
Application to bring Land under the operation of " The Transfer of
Land Act'
To the Registrar of Titles.
| Section 17. | I (insert name and addition) hereby apply to have the land hereinafter described brought under the operation of "The Transfer of Land Act." And I declare- |
1.
That I am the owner of an estate in fee simple in possession [or of an estate of freehold in possession for my life or otherwise as the case may require] in
ALL THAT [insert, if applicable, part of , or otherwise, according to the Crown grant or certificate of title. If the land be part only of that granted add which land contains (insert area) or thereabouts, and is described
in the document numbered in the Schedule hereto ; or otherwise after the
word thereabouts set forth a sufficient description to identify the land].
2. That such land, including all buildings and other improvements thereon,
| is of the value of | pounds, and no more. |
3.. That there are no documents or evidences of title affecting such land in my
possession or under my control, other than those included in the Schedule hereto.
4. That I am not aware of any mortgage or encumbrance affecting the said
land, or that any other person hath any estate or interest therein at law or in
equity, in possession, remainder, reversion, contingency, or expectancy [If there be
any add other than as follows, and set the same forth].
5. That the said land is occupied [If unoccupied prefix un to occupied ;
occupied, add by whom, and state the name and addition of the occupant, and the
if
nature of his occupancy].
6.
That the names and addresses, so far as known to me, of the occupants of all lands contiguous to the said land are as follows :—
7.
That the names and addresses, so far as known to me, of the owners of all lands contiguous to the said laud are as follows:
[If the certificate of title is not to issue to the applicant add] And I direct the
certificate of title to be issued in the name of (insert name and addition).
| Dated this | day of | One thousand eight hundred and |
Made and subscribed at
| in the presence of | } |
[The applicant, if within the colony, to sign before the registrar or a notary public or justice of the peace; if abroad, before a notary public, consul, or a justice of the peace.]
SCHEDULE OF DOCUMENTS REFEREED TO.
38° VICTOR' 7E, No. 13.
Transfer of Land.
Second Schedule.
Register Book.
| Vol. | Fol. |
WESTERN AUSTRALIA.
Certificate of Title under " The Transfer of Land Act."
| (Insert name and addition) is now the proprietor [here state whether sole or otherwise] of an estate in fee simple [if not in fee simple state the nature of the estate; | Sections 21 and 34. |
| and if the property be leasehold say of a leasehold estate for years |
| from the | day of | One thousand eight |
| hundred and | ] subject to the encumbrances notified |
| hereunder, in ALL THAT | containing | (insert area) or thereabouts, |
being [insert, if applicable, part of or otherwise according to the Crown
grant or certificate of title. If the grant was for any public purpose shortly mention it].
| Dated the | day of | One thousand eight hundred and |
Seat of
| Commissioner of Land Titles. | Office. |
ENCUMBRANCES REFERRED TO.
Third Schedule.
WESTERN AUSTRALIA.
Caveat forbidding Land to be brought under " The Ra22sfer of
Land Act."
To the Registrar of Titles.
TREE NOTICE that I (insert name and addition) claim (particularize the estate
| or interest claimed) in the land described as (copy description from the advertisement) Section | 22. |
| in the advertisement relating to the application of (state applicant's name and | |
| addition), and I forbid the bringing of such land under the operation of "The Transfer of Land Act." I appoint as the place at which | |
| notices and proceedings relating hereto may be served. |
| Dated this | day of | One thousand eight hundred and |
Signed in the presence of
38° VICTORLE, No. 13.
Transfer of Land.
Fourth Schedule.
WESTERN AUSTRALIA.
| Section 57, | Transfer of Land. |
I (insert name and addition) being registered as the proprietor of an estate in fee simple [if not in fee simple state the nature of the estate; and if the property be leasehold say of a leasehold estate for years from the day of One thousand eight hundred and ] in the land hereinafter described [if the transfer be by a mortgagee or annuitant under his power of sale say being the proprietor of a mortgage (or charge as the case may be) from CD., registered the day of One thousand eight hundred and numbered upon the land hereinafter described] subject to the encumbrances notified hereunder in consideration of the sum of paid to me by E.F. (insert addition), Do HEREBY TRANSFER to the said E.F. all my estate and interest in [if the transfer be by a mortgagee or
annuitant under his power of sale say all the estate and interest of the said C.D. on
the said day of One thousand eight hundred and or which be
was then entitled or able to transfer or dispose of in] ALL THAT [If the transferred land be part only of the land comprised in the existing certificate, set forth in lilacs, chains, or feet, the boundaries, and refer to a map].
| Dated the | day of | One thousand eight hundred and |
| Signed by the said | in the presence of |
Signed by the said E.F. in the presence of
ENCUMBRANCES REFERRED TO.
WESTERN AUSTRALIA.
Transfer of a Lease, Mortgage, or Charge.
I (insert name and addition) being registered as the proprietor of a lease [or
| Section 69. | mortgage, or charge, as the case may be] numbered of (or upon) | |
| ||
| Do HEREBY TRANSFER to the said C. D. all my estate and interest as such | ||
| registered proprietor in ALL THAT [or otherwise, according to the description in the lease, mortgage, or charge, or describe the land in general terms by reference to the registered instrument]. |
| Dated the | day of | One thousand eight hundred and |
| Signed by the said | in the presence of |
Signed by the said C.D. in the presence of
ENCUMBRANCES REFERRED TO.
38° VICTORLE, No. 13.
Transfer of Land.
Transfer of Land, or of a Lease, Mortgage, or Charge, by
Endorsement.
I the within named (insert name) in consideration of the sum of paid to me by G.H. (insert addition) hereby transfer to the said G.H. the within mentioned land [or lease, or mortgage, or charge, as the case may be], subject; however, to the encumbrances notified or endorsed on the within certificate,
[or in the register book].
| Dated the | day of | One thousand eight hundred and |
Signed by the said
| in the presence of | I |
Signed by the said G.H. in the }
presence of
Fifth Schedule.
| Creation of Right of Carriage-way in a Transfer of | •eehold Land. |
Together with full and free right and liberty to and for the transferee hereunder,
and to and for the registered proprietor or proprietors for the time being, of Seed on 63.
the laud hereby transferred, or any part thereof, and his, her, and their tenants, servants, agents, workmen, and visitors to go, pass, and repass at all times hereafter, and for all purposes, and either with or without horses or other animals, carts or other carriages, into and out of and from the said land, or any part thereof, through, over, and along the road or way, or several roads or ways
| delineated and colored | on the said map. |
Creation of Right of Carriage-way in a Lease of Freehold Land.
Together with full and free right and liberty to and for the said lessee and his transferees, proprietors for the time being of the land hereby leased or any part thereof, and his, her, and their tenants, servants, agents, workmen, and visitors to go, pass, and repass at all times hereafter during the continuance of this lease, and for all purposes, and either with or without horses or other animals, carts or other carriages, into and out of and from the said land, or any part thereof,through, over, and along the road or way, or several roads or ways delineated and
| colored | on the said map. |
38° VICTORI/E, No. 13.
Transfer of Land.
Sixth Schedule.
WESTERN AUSTRALIA.
Lease.
| Section 65. | A.B. (insert addition) hereinafter called the lessor, and who is registered as the proprietor of an estate [here state nature of the estate] in the laud hereinafter |
| described, subject to the encumbrances notified hereunder, HEREBY LEASES to | |
| CD., (insert addition) hereinafter called the lessee; ALL THAT • [If | |
| the land leased be part only of the land comprised in the existing certificate, set forth in | |
| links, chains, or feet, the boundaries, and refer to a map] To BE HELD by the lessee | |
| for the term of years from the day of One thousand eight hundred and at the clear yearly rent of payable [here | |
| insert terms of payment] subject to the covenants and powers implied under "The Transfer of Land Act," unless hereby negatived or modified, and also to the | |
| covenants and conditions hereinafter contained [here set forth any special ones]. |
The following covenants by the lessee are to be construed according to the
6Sth section of "The Transfer of Land Act."
The lessee will not transfer or sublet.
The lessee will fence.
The lessee will cultivate.
The lessee will not cut timber.
The lessee will insure against fire, in the name of the lessor.
The lessee will paint outside every third year.
The lessee will paint and paper inside every fourth year.
The lessee will not use the premises as a shop.
The lessee will not carry on any offensive trade.
The lessee will carry on the business of a publican, and conduct the same
in an orderly manner.
The lessee will apply for renewal of license.
The lessee will facilitate the transfer of license.
| Dated the | day of | One thousand eight hundred and |
Signed by the said lessor in the 1
presence of
Signed by the said lessee in the
presence of
ENCUMBRANCES REFEREED TO.
38° VICTORIA;, No. 13.
Transfer of Land.
Seventh Schedule.
| Column, One. | Column Two. |
Section 68.
The lessee will not 1. The lessee, his executors, administrators, or trans- transfer or sublet. ferees will not, during the said term, transfer, assign, or sublet the premises hereby leased, or any part thereof, or otherwise by any act or deed procure the said premises, or any part thereof, to be transferred or sublet, without the consent in writing of lessor or his transferees first had and obtained.
1.
2. The lessee will fence. 2. The lessee, his executors, administrators, or trans- ferees will, during the continuance of the said term, erect and put up on the boundaries of the said land, or on those boundaries upon which no substantial fence now exists, a good and substantial fence.
| 3. |
|
tivate. transferees, will, at all times during the said term, cul- tivate, use, and manage in a proper and husbancike manner all such parts a the land as are now or shall here- after with the consent in writing of the said lessor or his transferees be broken up or converted into tillage, and will not impoverish or waste the same.
The lessee will not 4. The lessee, his executors, and administrators, or
cut timber. transferees will not cut down, fell, injure, or destroy
any growing or living timber or timber-like treestanding and being upon the said land without the
4.
consent in writing of the said lessor or his transferees.
| 5. | The lessee will in- | 5. The lessee, his executors, administrators, or trans- |
sure against fire in the ferees, will insure, and during the said term keep in- name of the lessor. sued against loss or damage by fire, in the name of the
lessor or his transferees, in some public insurance office approved of by him or them, to the amount of their full value, all buildings which shall for the time being be erected on the said land, and which shall be of a nature or kind capable of being insured against damage by fire ; and will, when required, deposit with the lessor or his transferees the policy of such insurance, and within seven days after each premium shall become payable the receipt for such premium ; and on any breach or non-ob- servance of this covenant the lessor or his transferees may, without prejudice to and concurrently with thepowers granted to him and them by this lease, and by
"The Transfer of Land Act," insure such buildings, and
the costs of effecting such insurance shall, during the said term, be a charge upon the said land. All moneys which shall be received under or by virtue of any such insurance shall be laid out and expended in making good the loss or damage.
The lessee will paint 6. The lessee, his executors, administrators, or outside every third year. transferees, will, in every third year during the con- tinuance of the said term, paint all the outside wood- work and ironwork belonging to the leased property with two coats of proper oil-colors, in a worlonanlike manner.
6.
3g° VICTORIX, No. 13.
Transfer of Land.
| Column One. | Column Two. |
| 7. | The lessee will paint | 7. |
The lessee, his executors, administrators, or trans- of the said term, paint the inside wood, iron, and other work now or *usually painted with two coats of proper oil-colors in a workmanlike manner, and also re-paper, with paper of the same quality as at present, such parts of the said premises as are now papered, and also whiten or color such parts of the said premises as are now whitened or colored respectively.
| and paper inside every | ferees will, in every fourth year during the continuance |
| fourth year. |
| 8. | The lessee will not | 8. |
The lessee, his executors, administrators, or trans- ferees will not convert, use, or occupy the said premises or any part thereof, into or as a shop, warehouse, or other place for carrying on any trade or business what- soever, or permit or suffer the said premises or any part thereof, to be used for any such purpose, or otherwise than as a private dwelling-house, without the consent in writing of the said lessor or his transferees.
use the premises as a shop.
| 9. | The lessee will not | 9. |
The lessee, his executors, administrators, or trans- exercise, or carry on, or permit or suffer to be used, exercised, or carried on, in or upon the said premises, or any part thereof, any noxious, noisome, or offensive art, trade, business, occupation, or calling, and no act matter, or thing whatsoever shall at any time during the said term be done in or upon the said premises, or any part thereof, which shall or may be or grow to the annoyance, nuisance, grievance, damage, or disturbance of the occupiers, or of the adjoining lands and properties.
| carry on any offensive | ferees will not, at any time during the said term, use, |
| trade. |
| 10. The lessee will | 10. | The lessee, his executors, administrators, or |
| carry on the business of a | transferees will, at all times dining the continuance of |
| publican, and conduct the | the said term, use, exercise, and carry on, in and upon |
| same in an orderly man- | the premises, the trade or business of a licensed victualler |
| ner. | or publican, and seller of fermented and spirituous liquors, and keep open and use the house, inn, and buildings standing and being upon the land as and for an inn or public-house for the reception, accommodation, and entertainment of travellers, guests, and other persons resorting thereto or frequenting the same, and manage or conduct such trade or business in a quiet and orderly manner, and will not do or commit, or suffer to be done or committed, any act, matter, or thing whatsoever, whereby or by means whereof any license shall be allowed to expire or to become void; or shall or may be liable to be forfeited, suspended, taken away, or refused. |
| 11. | The lessee will ap- | 11. |
The lessee, his executors, administrators, or transferees will from time to time during the continuance of the said term, at the proper times for that purpose, apply for and endeavour to obtain such license or licenses as is or are or may be necessary for carrying on the said trade or business of a licensed victualler or publican, in and upon the said premises, and keeping the said house or inn open as and for an inn or pubhc- house as aforesaid.
ply for renewal of license.
38° VICTORLE, No. 13.
1Fansfer of Land.
| Column One. | Column Two. |
12. The lessee -will fa- 12. The lessee, his executors, administrators, or
cilitate the transfer of li- transferees will, at the expiration or other sooner
cense. determination of the said term, sign and give such
notice or notices and allow such notice or notices of a
transfer or renewal of any license as may be required by
law to be affixed to the said house or inn, to be thereto
affixed and remain so affixed during such tune or times
as shall be necessary or expedient in that behalf, and
generally will do and perform all such acts, matters, and
things as shall be necessary to enable the said lessor or
his transferees, or any person authorised by him or
them, to obtain the transfer of any license then existing
and in force, or the renewal of any license or any new
license.
Eighth Schedule.
WESTERN AUSTRALIA.
Mortgage.
| I, A.B. (insert addition), being registered as the proprietor of an estate [here state nature of the estate] in the land hereinafter described, subject to the | Section 73. |
| encumbrances notified hereunder, in consideration of the sum of this day lent to me by C.D. (insert addition), hereinafter called the mortgagee, do hereby covenant with the said mortgagee |
FIRSTLY, to pay to the said mortgagee, or his transferee, the principal sum of
| pounds on the | day of |
SECONDLY, to pay to the said mortgagee, or his transferee, so long as the said
principal sum or any part thereof shall remain unpaid, interest on the said sum, or
on so much thereof as shall for the time being remain unpaid at the rate of
per centum per annum, by equal payments on the
| day of | day of |
and on the
in every year.
THIRDLY, that I will insure against fire in the name of the mortgagee.
FOURTHLY (here set forth any special covenants).
AND for better securing the payment in manner aforesaid of the said principal
sum and interest, I HEREBY MORTGAGE to the said mortgagee all my estate and interest, and all the estate and interest which I am entitled or able to transfer or
| dispose of in Amr., THAT | [insert, if applicable, part of |
, or otherwise, according to the certificate] of
[if the land mortgaged be part only of the land comprised in the existing certificate,
set forth, in links or feet, the boundaries, and refer to a map].
One thousand eight hundred and
| Dated the | day of |
Signed by the said LB. in the
presence of
Signed by the said C.D. in the
presence of
ENCIDTBRANOES REFERRED TO.
38° VICTORIIE, No. 13.
Transfer of Land.
Ninth Schedule.
WESTERN AUSTRALIA.
Charge.
Section 73.
I, A.B. (insert addition) being registered as the proprietor of an estate [here state nature of the estate] El ALL THAT [If the land charged be part only of the land comprised in the existing certificate, set forth, in links or feet, the boundaries, and refer to a map] subject to the encumbrances notified hereunder, and
desiring to render the said land available for the purpose of securing to and for the benefit of C.D. (insert addition), the annuity hereinafter mentioned, Do HEREBY CHARGE the said land for the benefit of the said C.D. with an annuity of
to be paid at the times and in the manner following ; that is to say—
[here state the times appointed for the payment of the annuity and the events on which it shall cease to be payable; also any special covenants or powers, and any modification of the powers or remedies given to an annuitant by the Act.]
| And, subject as aforesaid, the said C. D. shall be entitled to all powers an remedies given to an annuitant by " The Transfer of Land Act." | . d |
| Dated the | day of | One thousand eight hundred and |
Signed by the said A.B. in the
presence of
Signed by the said C.D. in the
presence of
ENCEDIBRANCES REFERRED TO.
Tenth Schedule.
| Column One. | Column Two. |
That I will insure against That I, my heirs, executors, administrators, or
Section sz. fire, in the name of the transferees will insure and so long as any money shall
mortgagee. remain secured by this mortgage keep insured, against
loss or damage by fire, in the name of the mortgagee or
his transferees, in some public insurance office to be
approved of by him or them, all buildings which shall
for the time being be erected on the said land, and
which shall be of a nature or kind capable of being so
insured, to the amount either of the principal money
hereby secured or of the full value of such buildings;
and will, when required, deposit with the mortgagee or
his transferees the policy of such insurance, and
within seven days after each premium shall become
payable the receipt for such premium. And that the
monies which shall be received on account of such
insurance shall, at his-or their option, be applied either
in or towards satisfaction of the moneys secured by this
mortgage, or in rebuilding or reinstating, under the
superintendence of his or their surveyor, the buildings
destroyed or damaged. And that on any breach or
non-observance of this covenant he or they shall be at
liberty to effect such insurance, and continue the same
for such period as may be deemed fit, and the costs and
expenses paid on account thereof shall be a charge upon
the said land, and bear interest at the same rate as if
principal money overdue.
38° VICTORIX, No. 13.
Transfer of Land.
Eleventh Schedule.
WESTERN AUSTRALIA.
| Form of Transfer of Land under Writ of Fieri Facias. | Section 96. |
I (insert name) as the Sheriff of Western Australia, in pursuance of a writ of
| fieri facial tested the | day of | One thousand eight |
| hundred and | , and issued out of the Supreme Court in an action |
wherein is the plaintiff and the defendant, which said is registered as the proprietor of an estate [here state
nature of the estate] in the land hereinafter described, subject to the encumbrances
notified hereunder, and to effectuate the sale made under such writ, do hereby, in consideration of the sum of paid to me by E.F. (insert addition),
| transfer to the said E.F. all the estate and interest of the said | in |
ALL THAT [If the land transferred be part only of the land comprised in the
grant or existing certificate, set forth, in links or feet, the boundaries, and refer to a map].
| Dated the | day of | One thousand eight hundred and |
| Signed by the.said | in thel. |
presence of
Signed by the said E.F. in the I
presence of
ENCUMBRANCES REFERRED TO.
WESTERN AUSTRALIA.
Form of Transfer of Lease, Mortgage, or Charge, under Writ of
Fieri Facias.
I (insert name) as the Sheriff of Western Australia, in pursuance of a -writ of
| fieri, facies tested the | day of | One thousand eight hundred |
| and | and issued out of the Supreme Court in an action wherein | is |
the plaintiff and the defendant, which said is registered as the proprietor of a lease [or mortgage, or charge, as the case may be] numbered of [or, upon] the land hereinafter described, subject to the encumbrances notified hereunder, and to effectuate the sale made under such writ, do hereby, in consideration of the sum of paid to me by E.F. (insert
| addition) transfer to the said B.F. all the estate and interest of the said | as |
such registered proprietor in ALL THAT [or otherwise, according to the
description in the lease, mortgage, or charge; or describe the land in general terms by
reference to the registered instrument].
| Dated the | day of | One thousand eight hundred |
| Signed by the said | in the 1. |
| in the presence of | i |
Signed by the said E.F. in the/
| presence of | S |
ENC1TMBRANCES REFERRED TO.
3S° VICTORLE, No. 13.
Transfer of Land.
WESTERN AUSTRALIA.
Form of Transfer of Land under Decree or Order of the Supreme
Court.
I (insert name) in pursuance of a decree or order of the Supreme Court, dated in the register book, vol. fol. , hereby transfer to E.F. (insert
| the | day of | One thousand eight hundred and | and entered |
addition), subject to the encumbrances notified hereunder, all the estate and
interest of , who is registered as the proprietor Of an estate (here state
nature of the estate) in the land hereinafter described; in ALL THAT [If the land transferred be part only of the land comprised in the existing, certificate, set forth, in links or feet, the boundaries, and refer to a map].
| Dated | the | day of | One thousand eight hundred and |
| Signed by the said | in the} |
presence of
Signed by the said E.F. in the}
presence of
ENCUMBRANCES REFERRED TO.
WESTERN AUSTRALIA.
Form of Transfer of Lease, Mortgage, or Charge under Decree
or Order of Supreme Court.
I (insert name) in pursuance of a decree, or. order of the Supreme Court dated entered in the register book, vol. , fol. , hereby transfer to E.F. (insert addition), subject to the encumbrances notified hereunder, all the estate and interest of , who is registered as the proprietor of a lease [or mortgage, or charge, as the case may be] numbered , of [or upon] the land hereinafter
| the | day of | One thousand eight hundred and | , and |
described, in ILL THAT [or otherwise, according to the description in the lease,
mortgage, or charge; or describe the land in general ten by reference to the registered
instrument.]
| day of | One thousand eight hundred and |
| Dated | the |
| Signed by the said | in the} |
presence of
Signed by the said B.F. in the}
presence of •
ENCUMBRANCES REFERRED TO.
38° VICTOR 17I;, No. 13.
Transfer of Land.
Twelfth Schedule.
Form, of Power of Attorney.
I, A.B. (insert addition), do hereby appoint C.D. (insert addition) my attorney Section 103.
to sell to any person all or any lands, leases, mortgages, or charges, whether now belonging to me or which shall hereafter belong to me under or by virtue of
" The Transfer of Land Act," or of which I am now or shall hereafter be the
proprietor or owner under the said Act. its° to mortgage all or any such lands
or leases for any sum at any rate of interest. ALSO to charge the same with any
annuity of any amount. ALso to lease all or any such lands as shall be of freehold
tenure for any term of years not exceeding twenty-one years in possession at any
rent. Also to surrender, or obtain or accept the surrender, of any lease in which I am or may be interested. Also to exercise and execute all powers which now are or shall hereafter be vested in or conferred on me as a lessor, mortgagee, or
annuitant under the said Act [or otherwise according to the nature and extent of the
powers intended to be conferred]. Atm for me and in my name to sign all such
transfers and other instruments, and do all such acts, matters, and things as may be necessary or expedient for carrying out the powers hereby given, and for recovering all sums of money that are now or may become due or owing to me in respect of the premises, and for enforcing or varying any contracts, covenants, or conditions binding upon any lessee, tenant, or occupier of the said lands, or upon any other person in respect of the same, and for recovering and maintaining possession of the said lauds, and for protecting the same from waste, damage, or trespass.
| Dated this | day of | One thousand eight hundred and |
Signed by the said A.B. in the }
presence of
Thirteenth Schedule.
Certificate of Registrar, Esc., taking Declaration of Attesting Witness.
| Appeared before me at | , the | day of | One Section 105. |
thousand eight hundred and , C.D., the attesting witness to this instrument, and declared that he personally knew A. B., the person signing the same, and whose signature the said C.D. attested, and that the name purporting to be the signature of the said A.B. is his own handwriting, and that he was of sound mind, and freely and voluntarily signed such instrument.
Fourteenth
38° VICTORLE, No. 13.
Transfer of Land.
Fourteenth Schedule.
WESTERN AUSTRALIA.
Caveat forbidding Registration of any Change in Proprietorship, or
any dealing with Estate or Interest.
| Section 111. | To the Registrar of Titles.. |
| MEE NOTICE that I (insert name and addition) claim (specify the estate or interest claimed) in (describe land) standing in the register book in the name | |
| of ; And I forbid the registration of any person as transferee or proprietor of, and of any instrument affecting the said estate or interest absolutely [or until after notice of any intended registration or registered dealing be given to me, at the address hereinafter mentioned; or, unless such instrument be expressed to be subject to my claim, as the case may require]. I' appoint as the place at which notices and proceedings relating to this caveat may be served. |
| Dated this | day of | One thousand eight hundred and |
Signed in the presence of
Fifteenth Schedule.
WESTERN AUSTRALIA.
Registration Abstract.
(Copy certificate of title).
This registration abstract is issued 'under the provisions of "The Transfer of
Section 117. Land Act" for the purpose of enabling the proprietor above named to transfer or
otherwise deal with the above-described laud am any place without the limits of
the said Colony, and will continue in force from the date hereof until
the day of One thousand eight hundred and , or
until the same be surrendered . to me for cancellation, or the loss, destruction, or
obliteration hereof proved to the satisfaction of the Commissioner of Titles.
| Dated this | day of | One thousand eight hundred and |
| Registrar of Titles. | :Offico. |
Sixteenth Schedule.
Summons.
In the matter of "The Transfer of Land Act."
| Section 108. | L.B. (insert addition) is hereby summoned to appear before me, at the Office |
| of Titles, | on | the | day of | One thousand |
eight hundred and at of the clock in the [fore] noon, then and there to be examined at the instance of C.D. (insert addition) concerning ;• and the said. A.B. is required to bring with him and produce at the time and place aforesaid (describe documents) and all other writings and documents in his custody or power in any wise relating to the premises.
| Given under my hand the | • day of | One thousand eight |
hundred and
Commissioner of Titles.
38° ATICTOREE, No. 13.
Transfer of Land.
Seventeenth and Last Schedule.
On making application to bring land under the operation of the
| Act, exclusive of advertisements :— | £ s. d. | Section 124. |
When the applicant is the original grantee, and no transaction
| affecting the land has been registered | ... | ... | 0 | 5 | 0 |
When the title is of any other description, or when the
application is to be registered in respect of an estate of
| freehold on a transmission, and the value exceeds £500 The like when the value exceeds £400, and does not exceed | 2 10 | 0 |
| £500 | ... | ... | ... | ... | ... | 2 0 0 |
The like when the value exceeds £300, and does not exceed
| £400 | ...... | ||||
|
The like when the value exceeds £200, and does not exceed
| £300 ...... | ... | ... | ... | 1 0 0 |
| The like when the value does not exceed £200 ...••• Contribution to assurance fund upon first bringing land under this Act, and upon the registration of an estate of freehold on a transmission:— | 0 10 | 0 |
| In the pound sterling of value of land | 0 | 0 | 01 |
| For every certificate of title | ... | ... | 1 | 0 | 0 |
For registering a transfer, or a lease, mortgage, or charge, or
transfer thereof, or a discharge of a mortgage or charge,
wholly or partially, or a satisfaction of an annuity, or a
| surrender of a lease... | ... | ... | ... | 0 10 | 0 |
For registering a transfer to persons being trustees of any
society registered under any Ordinance or Act relating
| to Friendly Societies | ... | 0 5 0 |
| For certificate of title thereon | ... | 0 10 | 0 |
| For registering a transfer by such persons | 0 | 5 | 0 |
| For certificate of title thereon | ••• | ... | 0 10 | 0 |
When any instrument purports to deal with or affect land
included in more than one grant or certificate, for each
| memorandum after the first • | ... | ... | ... | 0 | 2 | 0 |
For registering proprietor of any freehold estate or interest
| on a transmission ... | ... | 1 | 0 | 0 |
| For every registration abstract | ... | 1 | 0 | 0 |
| For cancelling registration abstract ... | 0 | 5 | 0 |
| For every caveat | ... | 0 10 | 0 |
| For withdrawal of caveat | 0 5 0 |
| Far entry of foreclosure ... | 1 | 0 | 0 |
| For every search | ... | 0 2 0 |
| ||
| For every general search | ||
| ||
| For every map deposited |
| ••• | 0 10 | 0 |
For depositing documents declaratory of trusts ...
38° VICTOBIZE, No. 13.
Transfer of Land.
For registering recovery of possession by legal proceedings
| or registering the lessor or surrenderee | ... |
| --- | 0 10 0 |
| For registering vestino. | of lease in mortgagee on refusal of |
| trustee to accept the same | ... | 0 10 0 |
•-•
| For entering notice of marriage or death | ... | ... | 0 10 | 0 |
For entering notice of writ of fi. fa., or any order of the
| Supreme Court or of the Commissioner | .„ |
| • • • | 0 10 0 |
| For entering satisfaction of any such writ | ... | 0 | 1 | 0 |
| For taking an acknowledgment by a married woman | 0 | 5 | 0 |
| For order dispensing with production of any duplicate grant, |
| certificate, or instrument | ... | 0 10 | 0 |
For returning documents of title deposited in support of
application, on withdrawal of application or rejection of
| title... | ... | ... | ... | ... | 0 | 5 | 0 |
For order for and inspection of any documents permanently
| retained... | ... | ... | ... | 0 | 5 0 |
For copy of or extract from any document deposited in support
of an application to bring land under the Act and
retained, or from any caveat, at per folio of seventy-
| two words | ... | 0 | 0 | 6 |
| • •• | • • • | --- |
| For every certified copy, first folio of seventy-two words | 0 | 5 | 0 |
| For every folio or part of a folio after the first ... | 0 | 0 | 8 |
| For every map thereon ... | ... | ... | 0 | 2 | 0 |
| For taking affidavit or statutory declaration | ... | 0 1 0 |
For commission to a perpetual commissioner to take acknow-
| ledgments | 1 0 0 |
| For a special commission | 0 15 | 0 |
| For every summons | ... | 0 | 2 | 0 |
| For examination thereunder | ... | 0 10 | 0 |
| For statement of grounds under section 120 | ... | 0 10 0 |
For entry of an executor or administrator, or the trustee of
| bankrupt as a transferee or. proprietor | 0 10 0 |
...
• -•
| For entry of husband as joint proprietor | ... | ... | 0 10 | 0 |
For entry of survivors or other persons as proprietors in case
| of joint proprietorship | ... | 0 10 0 |
| • •• | •-• |
By Authority: RICHARD PETHER, Government Printer, Perth.
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0
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