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li 6 6- « ■' ^

A MANUAL

OF THE LAW OF

Registration of Titles

REAL ESTATE

Manitoba and the North-West Territories.

LOUIS WILLIAM mUTLfeE.,

Barritter-at-Law.

TORONTO :

CARSWELL & Co., LAW PUBLISHERS.

1890.

Entered aooordlng to Aot of the Farliameiit of Oanftda, in the year one thonsand
eight hundred and ninety, by OisawBUi ds Co., In the office of the Minieter
of Agriooltore.

pbiittbo bt

Tho3. Moobb a Co., Law Pbintbbs

22 & 24 Adblazdb BT. Babt.

TOBOKTO.

PREFACE,

THIS manual of the Real Property Acts of Manitoba and
the North-West Territories is intended to present the
Laws in a form more convenient for reference than that in
which they appear in the statute books ; to which have
been added an analytical index, tariffs, forms, and some
notes on the Provisions of the Statute in relation to the
Land Titles OfSces in Manitoba based on the practical
experience of the author during the time he was Registrar-
General for the Province under the Real Property Act of
1886 and its amendments. But few cases of any import-
ance relating to these Acts have been decided, and fewer
still have been reported, so that as yet we cannot be said to
have any settled jurisprudence on the subject. Such cases
as have been decided are referred to after the sections to
which they particularly relate, and notes from a few
Australian cases have been also introduced ; but no attempt
has been made to apply the decisions of other colonial
courts to these statutes, the author considering it best
to abstain as far as possible from making suggestions
regarding interpretation, except where our Canadian courts
or the practice of our Land Titles Offices have decided as
to construction.

An Introductory Analysis of the Act has been given, con-
sidering under their proper heads the different subjects
treated of in dispersed portions of the Acts, which it is hoped
may assist in the examination and application of the pro-
visions of the new laws that have so revolutionized gen-
erally accepted ideas of conveyancing.

In the compilation of this treatise the author has freely
availed himself of much useful matter contained in Mr.

IV PBEFAOE.

Thomas a'Beckett's work on the Transfer of Land Statute of
Victoria, and Mr. Herbert C. Jones' work on the " Torrens'
System " of Transfer of Land in Canada. To both these
gentlemen this acknowledgment is doe, and reference most
still be had to their works for much valuable material which
it has not been considered advisable to include in this
manual, designed rather as a handy book of the Statutes
than a dissertation upon their principles.

The author has not deemed it useful to enter into a
discussion upon the merits and advantages of the system
of registration of titles considered with reference to the in-
dexing and transfer of real property. The merits of the new
system have been admitted in Canada when it was practi-
cally applied by the Legislatures of British Columbia,
Manitoba and Ontario, as well as by the Dominion Parlia-
ment, through the enactment of statutes dealing with the
subject in these Provinces and the North-West Territories.
Similar systems are in operation in parts of Great Britain
and Ireland and in most of the British Colonies and
possessions in the Pacific ; also in Turkey in Europe, in
Prussia, in Hesse-Darmstadt and Zurich, and especially
in the last-mentioned communities have the highest com-
mendation from juridical writers. The author can but
add his humble appreciation of the system, as being much
preferable to mere registration of deeds. The Torreus' sys-
tem is the most important of all modern land reforms, and,
as was said by an eminent English writer, in the Fortnightly
Review, April, 1885 (referring to Lord Cairns' Act, 1862),
it deals a death blow to the old doctrine which depended
on the theory that land was not to be dealt with freely, and
renders real estate as negotiable as any other property.

Those desiring to become better informed on the subject
of land transfer and registration by title are referred to
the following list of magazine articles and publications in
addition to that above referred to :

PRBFAOE. V

Land Beformers, by the Dake of ArgylOi in The Contem-
porary Review of April, 1886 ;

Qaestion of Land, Bt. Hon. G* Shaw Lefevre, Nineteenth
Century^ October, 1885 ;

Transfer of Land, Howard W. Elphinstone, Law Quarterly
Review f January, 1886 ;

An American View of the English Land Problem, John
Swann, National Review, January, 1886 ;

The Laws Belating to Land, Sir J. F. Stephen, National
Review, February, 1886 ;

Free Land, Bt. Hon. Lord Hobhouse, Contemporary
Review, Part I., February, and Part IL, March, 1886 ;

Begistration of Title to Land, Thos. Eay, Law Quarterly
Review, July, 1886 ;

Begistration of Title to Land, editorial Westminster
Review, July, 1886.

British Parlimentary Beports :
Second Beport of the Beal Property Commissioners,

1832 ;
Beport of the Begistration and Conveyancing Com-
missioners of 1850 ;
Beport of the Commissioners appointed to consider
the subject of Begistration of Title with reference
to the Sale and Transfer of Land of 1857 ;
Beport of Special Committee of the House of Com-
mons on Land Titles and Transfer of 1878-9.
Handy Book on the Begistration of Title and Transfer
of Land, F. Hoare Colt, London.

Bemarks on the Land Transfer Question (1878) and
Supplementary Suggestions (1885), F. Hoare Colt.
Lord Cairns* Land Transfer Act of 1875 ;
The Beform in the English Land System, Hon. 6. C.
Broderick, London, 1888 ;

Chapter X. on Classification of Property, from " Early
Law and Custom," Henry Sumner Maine, London, 1883.

n PREFACE.

Article on " Begistration/' EncycloptBdia Britannica.

Handy Book of the Land Transfer Acts (Torrens* System)
containing copies of Acts, issued from the Office of the
Begistrar-General of Land. By authority, Wellington, New
Zealand (1878);

Registration of Title in the British Colonies, House of
Commons Returns by Colonial Authorities (1881).

Supplementary Returns to the House of Commons,
Colonial Authorities upon the '* System of Conveyancing by
Registration of Title " in operation in South Australia,
Queensland, New South Wales, Victoria, Tasmania, West-
ern Australia, New Zealand, British Columbia and Figi,
made up to 81st December, 1879.

The Torrens* System of Conveyancing. Report to
Legislature of the Straits Settlements, by W. E. Maxwell,
Singapore (1888).

Land Transfer Reform, J. Herbert Mason, Toronto (1888).

Torrens' System of Land Transfer in Ontario and Mani-
toba, Herbert C. Jones, Toronto (1886).

An Essay on the Transfer of Land by Registration. Sir
R. Torrens. Published by the Cobden Club.

Practice of the Office of Titles of Victoria, Sedgefield.

Introduction and Notes to the Transfer of Land Statute
(Victoria), by Thomas a'Beckett (containing advice by the
Commissioner of Titles — very useful — see pages 88 and 84
post); 2nd Ed., with additional notes by Frank Gavan
Duflfy, (Melbourne, 1888).

Report of the Royal Commission of Inquiry into the
Working of the Real Property Acts, 1861-1877, Queensland
(1879).

Land Transfer Reform : Scientific Registration and In-
dexing of Land Records, &c., Dwight H. Olmstead, New
York (1887).

Registration of Titles : Prize Essay. R. Burnet Morris*
London (1886).

PREFACE. VU

Statement on the Land Laws, by the Council of the In-
corporated Law Society of London (1886).

Land Transfer : published by order of the Bar Com-
mittee, London (1886).

The last three publications give a fair idea of the opinion
of the English Bar upon the subject.

All the above-mentioned pamphlets and publications,
some of which are even now difficult to procure, ought to
be found on the shelves of every law library in Canada
and the United States of America, in view of the fact
that the system of Title Begistration is destined very
soon to supersede all other systems of Land Begistration
and Transfer at present in use. Owing to the absence of
many of the most important writings from any of our
Provincial libraries the autho): has, in a number of cases,
been obliged to rely upon the notes and abstracts of others
where the publications themselves oujght to have been con-
sulted had it been possible.

The Beal Property Act of 1889 (Manitoba) combines the
principles of registration of title with the provisions of the
former statutes relating to the registration of instruments
affecting titles to land, distinguishing them as the '' old sys-
tem " and the " new system," the effect being to reduce the
cost of bringing lands under the operation of the Torrens
System, while leaving it optional with the owner to allow
his property to remain subject to the old system of deed
registration. The Statutes of the Province are about to
be revised and consolidated, it has therefore not been
deemed advisable to print the Acts respecting the registra-
tion of deeds and the duties of registrars of deeds with this
manual, as they will no doubt be considerably revised and
amended during the process of consolidation in order to
decrease the friction that may be expected to arise from the
joint administration of two systems so essentially differing
from each other.

Vlll PREFACE.

It has not been found praetieable to give notes of any
consequence with the text of the Territorial Act, but refer-
ences have been made in all possible cases to the corres-
ponding provisions of the Manitoba Statute which will
answer the purpose of a table of concordance, and thus the
rules and precedents established in the Land Titles Offices in
Manitoba may be more readily applied in the North- West
Territories. The side notes printed with the Territorial
Act are not the same as those which appear in the author-
ised editions of the statute ; this fact has been noted on
the title page of Part III.

An acknowledgment is due to Mr. W. E. Macara, Inspec-
tor of Land Titles Offices for Manitoba, and to Mr. P. M.
Barker, Inspector for the Territories, for their kind counsel
and assistance during the compilation of this work.

The author cannot hope to have escaped error in entering
upon so wide a field almost without any guidance from the
reports, but he does hope that the comments and the
references given may prove useful practice.

No. 8 London and Canadian Chambers,
Winnipeg, Manitoba, January, 1890.

TA3LE OF CONTENTS.

PART I.

Introductory Analysis of the *' New System'* of Title

Registration.

PAGE.

Objects of "New System" 1

Administration of New System 5

Bringing Land under the Act 8

Registered Titles 12

Transfers 17

Transmissions by Death or Insolvency 20

Leases 21

Easements ^3

Mortgages and Charges 23

Powers of Attorney 27

Jurisdiction of the Court of Queen*s Bem h 28

Caveats 31

Rights of Creditors against Registered Intkuems .... 33

Remedies for Loss of Rights 34

The Territorial Act 36

PART II.

The Real Property Act of 1889 ; (Manitoba Statute,
62 Victoria, cap. 16) with Notes thereon and

Forms 39

X TABLE OF OOMTENTS.

PAGE.
PAST III.

The TEBBiTORnss Real Pbopebtt Act ; (Revised
Statutes of Canada, cap. 61) as amended up to
SlsT Decebibeb, 1889, with Notes thereon and
References to the Manitoba Real Property
Act of 1889 211

APPENDIX.

Manitoba Statute 53 Victoria, cap. 5, being An Act
to Amend " The Real Property Act op 1889,"
WITH Notes thereon and References to the
Amended Statute 291

Index 805

TABLE OF CASES.

Andrews v. Bonnin, 197.

Archer v. Fitzgerald, 174.

Archibald v. Archibald, 185.

Archer ▼. Fotheringham, 198, 201.

Atty.-Oen. v. Hoggan, 186.

Aylwin, ex parte^ 186.

Aynard ▼. Belmonte, 194.

AuBtralian Dep. & Mtg. Co. v. Lord, 132.

Bannerman, re, 78, 79, 93, 94, 168.

Baird t. Morrioe, 181.

Badgley v. McCarthy, 194, 195, 301.

Belmonte v. Aynard, 194.

Benny y. Holmes, 63.

Berryman v. Benwiok, 123, 126, 297.

Bissell, ex parte, 43, 186, 192.

Bif%B, r«, 178.

" y. Waterhoose, 178.
Bond, ex parte, 176, 177.
Bowman, ex parte, 176.
Bonnean A Wishart, 196.
Bonnin t. Andrews, 197.
Brady y. Brady, 199.
Brown, ex parte, 182.

" y. Stoaghton, 107.
Backnall y. Beid, 109, 206.
Bart V. Clarke, 106.
Butcher y. Henderson, 56.

Campbell y. Janet, 178.
Capper y. Chisholm, 107.
Chisholm y. Capper, 107.
CUrke y. Bart, 106.
Clarke y. Scott, 196.
Com. Col. Co. of Man. A TUL. A ISf. W.
By., 82.

Conklin y. Farmers, etc., 123, 126, 297.
Colonial Bk. of Australasia y. Pie, 136.
Colonial Bank y. Boach, 169.

** & Hassett, 197.
Cunningham, ex parte, 43.

{Rep, p. 402, Jonee' Torrent System.)
Cnthbertson y. Bwan, 103, 110.

Dangherty, ex parte, 174.
Delaney y. Hyde, 108.

Farmers, etc., y. Conklin, 123, 126, 297
Fitzgerald y. Archer, 174.
Fleming & Howard, 71, 216.
Folk, exparU, 174, 176.
Fotheringbam y. Archer, 198, 201.
Furlong y. Latch, 168.

Gait y. Kelly, 127.
Gerraghty y. Bussell, 186.
Gibson & Massey, 101.

" & Herbert, 103, 120, 298.
Girard & Lejour, 61.
Gibbs & Oakden, 200.
Glass & McArthnr, 187.
Green & Shore, 206, 229, 244, 247, 298.
Graye y. Wharton, 107.
Greig y. Watson, 147.
Grant v. Hunter, 301.
Gumey £. <fr C. Co. in re, 82.
Gunn V. Hanrey, 178.

** «x parte, 186,192.

Hand-in-Hand, etc., Co. Sc Kat. Bk. of
Australasia, 103, 147, 164, 168, 169.
Harrey v. Inglis, 166.

Zll

TABLE OF CASES.

HftBBall, ex parte, 158.

Hayes & London Chartered Bank, 113,

146, 169.
Harvey A Gnnn, 178.
Hammill A Wiggins, 209.
Hamilton & Stookdale, 186.

" ex paru, 186.

Haseett v. Colonial Bank, 197, 198.
Herbert & Gibson, 103, 120. 298.
Henderson & Butcher, 66.
Hitchcock y. Way, 66.
Hoggan A Attorney-General, 186.
Hodgson v. Hunter, 181, 186, 192.
Holmes & Benny, 63.
Hunter A Hodgson, 181, 186, 192.
Howard A Fleming, 71, 216.
Henty & MoCahill, 103.
Hunter A Grant, 301.
Hyde v. Delaney, 108.

Inglis & Harvey, 166.

Irish, re, 70, 77, 78, 86, 180, 206, 242.

Jackson & MoPherson, 107, 182.
Janet v. Campbell, 178.
Johnson, ex parte, 42, 131.
Johnson, R. v., 182.
Jones V. Park, 48.
Jones V. Richards, 113.
Joyce V. Scarry, 127, 181.

Kelly & Gait, 127.

Kieth & Robertson, 108, 136.

Kickham v. The Queen, 169.

Lange v. Rudwalt, 103.

Latch V. Furlong, 168.

Lejour A Girard, 61.

Lewis, re, 71, 73, 76, 94, 168, 169.

London, etc., A Restall, 66.

London Chartered Bank v. Hayes, 113,

146, 169.
Lord v. Australian Dep. A Mortg. Co.,

182.

Maddison v. McCarthy, 136.

Man. A N. W. Ry. A Com. Col. Co., 82.

Mannsell A Patohell, 146.

Massey Mfg. Co. A Gibson, 101.

" " re, 82.
Murohison, re, 293.
Mitchell V. Murphy, 108.
Morrice v. Baird, 181.
Moss V. Williamson, 178.

{Rep. p, 407, Jonet Torrent System.
Mundy v. Prowse, 251.
Murphy v. Mitchell, 108.
McArthur v. Glass, 187.
McCahill v. Henty, 103.
McCarthy v. Badgley, 194, 195, 301.
McCarthy A Maddison, 136.
McCooey, R. v., 182.
McDonald v. Rowe, 164.
McEenny v. Spence, 53.
MoPherson A Jackson, 107, 182.
McPhillips A Wolf, 196.

National Bank v. United Hand-in-Hand»

etc., 108, 147, 154, 168, 159.
Nathan, re, 113.
Nixon V. Bcott, 108.

Oakden v. Gibbs, 200.

Park v. Jones, 43.

Patchell V. Mannsell, 146.

Patterson, ex parU, 88, 174, 176, 177, 179.

Pennington, ex parte, 174.

Pie A Colonial Bank, 136.

Prowse A Mundy, 261.

R. V. Kickham, 169.

R. V. McCooey, 182.

R. V. Johnson, 182.

Renwick v. Berryman, 123, 126, 297.

Reid A Bucknall, 109, 206.

Restall V. London, etCi, 66.

Richards v. Jones, 113.

Roach A Colonial Bank, 169.

TABLE OF OASES*

ZIU

Boss V. Victorian Per. Bldg. Socy, 167.
Bobertaon v. Kieth, 108, 186.
Bowe A MoDonald, 154.
Bud wait A Lange, 103.
Bussell A Gerraghty, 186.

Saonden & Wadham, 109, 248.
Scarry v. Joyce, 127, 181.
Scott y. Nixon, 108.

" A Shaw, 188.

*• A Clarke, 195.
Shaw y. Scott, 188.

Shore y. Green, 206, 229, 244, 247, 298.
Smart, ex parte, 178.
Spence A MoKinney, 58.
Stonghton y. Brown, 107.
Starke, ex parte, 177.
Stockdale y. Hamilton, 185.
Swan y. Cnthbertson, 108, 110.

Thompson, re, 217, 218, 288, 244.
United Hand-in-Hand Co. A Nationa
Bank, 108.

Vermette, r«, 51.

Victorian Per. Bldg Society A Koach,
157.

Wadham;<ft Sannders, 109, 248.
Waring|y. Ward, 182.
Waterhonse A Biggs, 178.
Watson A Greig, 147.
Way A Hitchcock, 55.
Wharton A Graye, 107.
Wiggins A Hammill, 209.
Williamson A Moss, 178.

{Rep. jp. 407, JoneM* Tarrens System,
Wishartjy. Bonnean, 195.
Wolf y. McPhillips, 195.

ADDITIONS AND CORBECTIONS.

Note references to Appendix at each section of the R. P. Act of 1889 amended

by Cap, 5 of 53 Vict. {Man.)

Pdg9 viii— Insert the word '• in " between the words *• usefal " and "prac-
tice " in the last line of Preface.

45 —Sixth line, for ** section " read *• subsection."

4G— Note after sub-sections 22 and 26 references to the "Queens-
land Act of 1861, where corresponding provisions appear."

64 —Make clause 3 of the form of affidavit agree with the third
clause of second form on page 81.

70 -After section 27 note reference to "49 Vict. cap. 13."

71— After sec. 28, not 3 reference to "sec. 52 post and 46 and 47 Vict,
cap. 28."

73— Note after second parafspraph that "53 Vict. cap. 19, which
came into force 31st March, 1890, made provision for the
appointment of an 'Official Administrator*."

75 — Line 25. Note references to sees. 2, 18, and 152 (repealing
clauses), and their effect as to the creation of estates tail.

82 — Line 11, insert full stop after " followed." and capital " I " for
the word " in." •

112 — Transpose note reference " (a) " in the fifth line to the end of
fourth line.

125— Side note, sec. 27, strike out ** powers of attorney and substitu-
tion thereof"

126— Side note, sec. 29, for "power of attorney" substitute "copies."

123 —Line 15, dele comma after " sheriffs ": Line 20, for " devices "
read " devises.''

131 -Line 25, for " Victorian. No " read " Victoria, no."

167 -Line 15, for " Officer" read " Office."

172 — Line for " financiary " read " fiduciary."

18 3 — Dd/e full stop at end of 11th line, and substitute a small " n "
for " notice '' in 12th line.

241 -Line 11, fcfr " confine" read " confirm."

INTRODUCTORY ANALYSIS

OF THE

"NEW SYSTEM" OF TITLE REGISTRATION.

When the Manitoba Legislature enacted '' The Beal
Property Act of 1885," of which the Act of 1889 is prac-
tically a consolidation, the preamble recited that the Act
was passed '' to give certainty to the title to estates in land
in the Province of Manitoba, and to facilitate the proof
thereof, and also to render dealings with land more simple
and less expensive." These are the same words as were
used in the preamble of theVictorian Act, and, as in that Act,
the objects aimed at are two-fold. Firstly, certainty of
title and facility of proof ; and, secondly, simplicity in deal-
ing with land brought under the operation of the statute.
This first result is obtained under the ''New System*'
(the term used in the Real Property Act of 1889 to dis-
tinguish the system of registration by title from the
" Old System " of registration by deed) by issuing a
Certificate of Title, which is a special document provided
by the Act that has the effect of declaring by statutory
authority that the person therein mentioned as being the
registered owner of the specified estate, has an indefeasible
title thereto as against all the world, (a) and consequently
dispensing with the series of documents theretofore neces-

(a) Sec8. 64.67. 85, 133, 142, 143 and 147.

a MATTEBS OF TITLE.

sary as evidence of title shewing the changes in owner-
ship from the original grant, and at each change giving
rise to enquiry as to the validity of the conveyance, the
expense and professional skill being of necessity increased
^ith every link in the chain of title. Under the old system
an unwilling purchaser might in most cases indefinitely
multiply technical objections and eventually, after much
tedious delay, have a perfectly safe-holding title rejected as
unmarketable ; and even if be failed in doing so, the inves-
tigation made on his behalf was never conclusive, and the
same expense and annoyance might be repeated with addi-
tions on the occasion of every transaction respecting the
land, going repeatedly over the same ground and causing
much delay, for each solicitor called in to pass the title had
to test every link in the chain of title for himself and assume
the responsibility of passing it. Under the '' new system "
the Examiners of title in the Land Titles Office make one
investigation final and conclusive, {b) and have special
powers to facilitate their examination (c) into matters of
title which greatly diminish the expense of an ordinary
«olicitor*s mvestigation, and have also the great advantage
under special provisions of the Act that although there
may be technical defects in the title which would otherwise
render it unmarketable, yet if the applicant can shew such
a title as would secure him from ejectment, or what is
known among lawyers as a " safeholding '' title, (d) the
defects are cured by the issue of a certificate of title,
unless personal fraud or misrepresentation, in which the
person named as registered owner in the existing certificate
has knowingly participated, can be distinctly established, (e)
In cases where titles have become clouded or affected
by claims or liens of a doubtful or irregular character,
these can be at very small expense removed by estoppel

(5) Sees. 43 and 44. (d) Sch. S, b. 3, b. 26.

(e) 8ec8. 49-57 and 108. (e) Bees. 64 and 85.

ALIENATION. 8

notices specially provided by the Act, (/) which may be
served on adverse claimants and their interests summarily
and inexpensively disposed of.

The second aim of the Statute, simplicity in dealing
with lands when once they have been made subject to its
operation, is ensured by an essential uniformity enforced
by the Statute, in all instruments of a similar class (g)
according to short forms prescribed, but which may be modi-
fied by express stipulation (h) of the parties ; and by the
statutory provision suspending all change of proprietorship
until registration has been effected, (i) Every regular
instrument intended to affect lands, subject to the new
system, when signed by the proprietor, and duly attested,
is made effective as a direction to the registrar to make
the necessary transfer or change, (j) but until duly regis-
tered no effect is given to the instrument in so far as the
lands are concerned, it merely gives rise to rights between
the parties, but no estate in the lands passes until regis-
tration has been duly effected by the proper public
officer (ft), and he can act only according to the provisions
of the Statute. The title to the lands mentioned in the cer-
tificate being guaranteed as indefeasible by the Government,
the warrantor is thus given the right of being made cogniz-
ant of every act by which, in any way, it is intended to be
modified or affected. (/)

As a consequence of this necessary restriction placed
upon the alienation of lands under the operation of the
new system, the entry of any memorial respecting trusts is
forbidden to be made in the register (m), and except in the
case of personal fraud, no one can be affected by notice

(/) Sees. 52 and 67. {k) 8ec. 74.

ig) Sec. 77. (I) Sch. 8. r. 16, s. 26, and oeoa.

{h) Seo. 144. 6S (5) 76 and 77.

<i) Seo. 74. (m) Seo. 86.

0) Sec. 81

4 TBU8TS.

of any trust or unregistered interest respecting such
lands (n)y and the knowledge of any such trust or interest
shall not of itself be imputed as fraud, (o) Trusts, how-
ever, are not abolished under the new system, they may
exist as between the parties, and the trust deed may be
deposited in the Land Titles Office for safe custody and
reference, but the responsibility of enquiring as to trnsta
is shifted from the purchaser, and it now rests upon the
beneficiary to take means to protect his interests against
improper dealings by lodging a caveat, or by taking
proceedings for the removal of the trustee, (p)

The system under which trusts are enforced by
Courts of Equity has not been diEturbed (q) nor has an
attempt been made to prevent the enforcement of claims
against actual or constructive trustees, but under the new
system a person does not become a trustee merely because
he holds trust property. The obligation has been made
personal to the trustee himself, and the bona fide registered
owner although a bare trustee has absolute title against
the ce$tui que trust, (r) Power is reserved to the Registrar
to prevent improper dealing with lands, (s) and in this way
he may in suspicious cases prevent a breach of trust ; the
beneficiary may file a caveat to protect his rights, {t) but
in the absence of fraud on the part of the purchaser he gets
a good title upon registration under the new system, (u)
although the transfer to him was in breach of trust.

(n) Sees. 86, 13d and 143. (r) Sees. 64. 85, 117.

(o) Sec. 85. {s) Seo. 68 (5)

(p) Beo8. 86 and 118-117. (t) Seo. 130.

Iq) 8eo8. 117, 123, 129. (u) Sees. 64. 85, and 133.

ADMINlSTBATIOlf OF "NEW SYSTEM"

THE ACT OF 1889.

The Manitoba Real Property Act of 1889 is the one with
which this introduction is principally intended to deal, and,
as will be seen, it is not merely a consolidation of the Real
Property Act of 1885 and its amendments, but several addi-
tional amendments suggested by the practical operation of
the former Acts have been made, as well as the necessary
alterations to secure the harmonious working of the dual
system now introduced. Provision is also made to secure the
carrying on without interruption, or at least with as little
interruption as possible, of cases pending under the Acts
repealed, (v) and that dealings with land which had been
brought under the operation of the repealed Acts might be
continued in the district within which they might be
included upon the establishment of the new offices, in the
same manner as if they were lands subject to those
provisions of the new law which the present Statute desig-
nates the "New System."

The administration of the Acts in both Manitoba and the
North-West Territories of Canada is effected through
Land Titles Offices, established by the Government in Land
Titles Districts, which districts are constituted by the
Lieutenant-Governor in Council in Manitoba ; in the Terri-
tories they are defined by the Statute. The offices in
Manitoba are included amongst those forming the Provincial
civil service, (w)

In Manitoba, as each Land Titles District was constituted
under the present Act, and Land Titles Offices established,
the originals or copies of all registers, books, instruments
and entries of instruments in the office of the Registrar-
General at Winnipeg, were furnished to the offices for the

(o) Sees. 10-19. (w) 8oo. 151.

6 ADMINI8TRATI0N OF "MEW 8T8TEM.

district within which the lands affected were situated, to be
thereafter dealt with as if they had been made and regis-
tered under the new Act ; (x) the office of the Registrar-
General ceased to exist on 80th October, 1889, (y) and
the system became decentralized, each Land Titles Office
having esclusive jurisdiction (z) within the district for
which it had been established, except that where lands
subject to the Act of 1885, either before or after the issue
of a certificate of title, happened to be in a division for
which no Land Titles District had been constituted, then,
until it became included in some other district, all dealings
aflfectirig it were to be made in the Land Titles Office for
Winnipeg, (a) where in the meantime all records affecting
lands in unorganized districts remained on file.

The County Registry Offices for the registration of deeds,
etc., ceased to exist, (b) and the Registrars of Deeds were
relieved of their duties under the ** Lands Registration Aet
of Manitoba," so soon as the lands registration division
was included in any Land Titles District constituted under
the present Statute and all the records of the offices so
abolished were transferred (c) to the proper Land Titles
Office in a manner similar to that provided for the distri-
bution by the Registrar-General of the archives of the old
Land Titles Office at Winnipeg.

Each Land Titles Office has at its head a District Regis-
trar, (d) who, in addition to his powers under the Real
Property Act, has also all the powers, and is required to
perform all the duties of a registrar of deeds under the
provisions of the " Lands Registration Act of Manitoba ;" (e)
he is assisted by deputies, examiners of titles, a draughts-

{x) Seo. 10. (&) Seo. 14.

(y) Seo. 18. (c) Sec. 11.

(i) Seo. 85. (d) Sec. 6.

(a) Seo. 86. {e) Sees. 15-17

ADMINI8TBATI0M OF '' MEW 8Y8TBM." 7

man and clerks appointed for each district. (/) Every
district Begistrar or deputy district Registrar under the
new system must be either a barrister or an attorney in the
Courts of the Province of Manitoba, (g) There is also an
** Inspector " for the Province, (h) which office is at present
combined with that of the District Begistrar for the Land
Titles District of Winnipeg.

In the Territories (i) the Governor General of Canada in
Council has the establishment of a Land Titles Office within
each district, and the appointment of the '' Begistrar " to
conduct the business of the office with such assistants and
clerks as are necessary, and as the Governor in Council
from time to time appoints, including a deputy to act in
case of the death, illness, or absence from his office of the
registrar. The qualification required of a Begistrar is that
he shall be a barrister or advocate of at least three years,
standing in one of the provinces of Canada.

The officials both in Manitoba and the Territories are
required to give security for the faithful performance of
their duties, (;) they are prohibited from practicing as con-
veyancers, etc., and are indemnified for acts done in the
discharge of the duties of their office, (k)

The Land Titles Offices in Manitoba are open to the
public from 10 a.m. to 8 p.m. ; (Z) those in the Territories
from 10 a.m. to 4 p.m. {m) The Manitoba offices are
directed to open and close by standard time, (l)

The Lieutenant-Governor in Council has the power to
make rules, etc., under the Manitoba Act, (n) while the
Governor General in Council exercises similar powers in
the Territories, (o)

{/) 8ec8. 6. 7 and 15. {k) M. Sees. 20 and 23 ; T. seca.

{q) Sees. 6 and 7. 31 and 32.

{h) Sec. 6. {I) 8eo. 24.

(i) T. BOOS. 21-23. (m) T. seo. 33.

01 M. 860. 8 . T. 8608. 26 and 27. (n) Boo. 26.

(o) T. 860. 132.

8 BBINGING LAND UNDKB THB ACT.

Upon the introduction of these Beal Property Acts in
Manitoba and the Territories it appears to have been con-
sidered necessary to embody amongst their provisions
certain amendments of the general law respecting lands
whether they were or were not subject to the new system
of refristration. (p) Practical experience has shewn that it
might have been better to have made these provisions the
subject of a special statute, and they have been and still
are matters of considerable differences of opinion. These
alterations of the law are noticed under the sections of the
statute by which they have been effected ; on reference to
the notes some of the difficulties which they have created
will become apparent.

BRINGING LAND UNDER THE ACT.

The manner of bringing lands under the operation of the
Act in Manitoba is similar to that provided by the Act of
1885, except that there is now no necessity of registering
a certificate of the filing of the application to close any
other office against registrations affecting the laud sought
to be made subject to the new system, both systems being
combined under the same administration.

The District Registrar upon receipt of the application
simply notes the filing upon the Abstract Book kept by him
under the system of registration of deeds, and the filing of
the application has at once the effect of preventing any fur-
ther registrations under the old system affecting the lands
therein mentioned, {a) No lands become subject to the new
eyslem until such ^n application has been filed, and no

(p) Man. sees. 27-84, and T. Bees. (a) Seo. 42.

6-17.

BRIKOING LAND UNDEB THE AOT 9

application can be filed for lands not included within the
limits of some one of the Land Titles Districts. (6) All
applications must, except in special cases, be in writing and
Bgned by the owner of the estate or interest in the land or
his duly constituted agent or attorney, (c) and should request
the District Begistrar to register the title under the rew
system. The nature of the estate or interest, its value, the
description of the property, the deeds held by applicant,
and the encumbrances, if any, which affect the land should
be clearly stated, as well as adverse claims through occupa-
tion or otherwise if there are any of which the applicant
may be aware. The substantial correctness of all the alle-
gations in the application is also required to be proved (d)
by the oath or affirmation of the applicant, or some person
having a personal knowledge of the facts. The title is
then examined by one of the official Examiners of titles, (e)
and if favorably reported upon, after all defects have been
removed, the District Registrar registers the title and issues
a certificate to the person in whose name it has been regis-
tered, (/) The holder of a legal or equitable estate is
entitled to have his title registered, and a certificate issued
to him therefor. The owner of an equity of redemption
may apply to have mortgaged lands registered, (g) and by
such application the whole estate would be made subject to
the new system. Applications may be made by parents,
guardians or committees respecting the lands of infants,
lunatics or persons of unsound mind ; if there is no
guardian or committee the District Begistrar may appoint
one to act in the case, and attorneys having authority to
sell lands may apply to have them brought under the new

(h) Bee. 35. {e) Sec. 43.

(e) Boles 2-7. Sch. S. b. 26 and if) Sees. 44 and 6S.

■«5- ^- (y) Sees. 40 and 69.

(di Boleil, 8oh. 8. s. 26.

10 BRINOINO LAND UNDER THE ACT.

system unless specially prohibited from so doing by the*
power of attorney, (h)

If the applicant or person acting on his behalf has power
to convey the land he may in his application, or by a special
request in writing filed afterwards and prior to registration
of the title, direct the c^rtiQcate of title to issue to some
other person, and such a direction from the time it is filed
vests all the applicant's estate or interest in the person
so named, who may be registered as owner, (t) In such
ciise^A the signature of the applicant must be verified by the
oath of a subscribing witness in the same manner as instru-
ments intended for registration under the old system, (t)
Applications may be withdrawn with the consent of all
parties interested, and the evidence of title returned to the
applicant or person appearing to the District Registrar to be
entitled to them, but any person who has been compelled
to file a caveat may on application to a Judge on summons
in Chambers obtain compensation for any unreasonable
expenses to which he may have been put on account of the
application, (j) Applications may be rejected by the
District Registrar, and in case of withdrawal or rejection
the expense of re-opening the books of the old system for
registrations aflfecting the property must be borne by the
original applicant before he receives the rebate on fees
paid, (k)

Should a withdrawal or a rejection be made subsequent
to the filing of a " Direction,** the effect of the re-opening
of the books of the old system is to revest the lands in the
person properly entitled to them, and the direction ceases
to be notice of any claim to the lands by any of the parties
thereto, (l)

(h) Seos. 41, 14S. {k) Sec. 47.

(t) 8eo. 46. (I) Seo. 4S.

U) Sec. 46.

BRINGING LAND UNDER THE ACT. 11

Proceedings nnder the Act do not abate or become*
suspended by death or transmission or change of interest,
but may be continued upon the order of the District Begis*
trar ; (m) nor does the death of any party executing an
instrument, prevent its registration after his death. (n>
Should it happen that the applicant or directee dies before
the certificate of title has issued, it will nevertheless issue
in his name, and the property will devolve as if it had issued
prior to his death, (o)

Clouds may be removed from titles by ibeans of estoppel
notices which are given a special statutory effect, in addition
to the effect of notice at common law, which bars any one
personally served from setting up claims unless he acts
promptly by filing a caveat, (;;) or instituting proceedings
to enforce his claims. Notices are served as in suits in
Court, iq) but in cases where title is made through tax
sale deeds substitutional service may in certain cases be
allowed, (r)

The stricter rules of evidence as to title are relaxed in
the investigation of titles so that the District Registrar and
Examiners may pass titles for the purpose of registration
under the new system with as much facility as a Judge
proceeding under the Quieting Titles Act, equitable prin-
ciples are observed, and in any matter of title they can
examine witnesses and administer oaths and affirma-
tions. («)

The District Registrar has power to compel the attend-
ance of witnesses and the production of documents, oa
summons, which may be enforced by the Court of Queen's
Bench in like manner, by the same proceedings and with

(m) Sec. 49. (9) Sees. 54 and 65.

(n) Sec. 50. (r) Sees. 53, 57.

(o) Sec. 51. ($) Sees. 56, 68. and Bole 24, Sch.
(p) Sees. 52, 147, Rale 28, Sch. 8. S. leo. 26.

MO. 26.

12 REOI8TRRED TITLES.

the same penalty, in the event of any disobedience, as
fiubpcBnas of such Court. (0 Doubtful matters of law or fact
may be referred by the District Registrar for the opinion
of the Court or a Judge, (a) and uncertain or difficult
questions of administration can be referred by him to a
Judge in Chambers, {v) After the registration of title the
deeds, instruments and evidence of title filed are retained
in the Land Titles Office, but where deeds relate to other
property than that brought under the new system, they
may in the discretion of the District Registrar be returned
upon office copies being made to remain of record with the
application.

REGISTERED TITLES.

A Certificate of Title dates from the time of registra-
tion, that is, so soon as it has been engrossed in the
register and the original for the owner marked with the
distinguishing symbol indicating the folio and volume of
the register in which it had been engrossed, (a) This date
is mentioned in the Certificate and in all cases it is to be
taken as the date of the certificate of title until an encum-
brance is registered upon it under the new system, when
the date of the memorial of the last registered encumbrance
becomes the date (6) of the certificate ; the certificate must
be in the form prescribed by the Act, and sealed with the
official seal, and the duplicate in the register must be pre-
served by the District Registrar for reference in his office, (c)
As the proprietor's interest is altered by dealings or
other registrations affecting the land, memorials are made
upon the duplicate, (d) which always shews the exact nature
of the title of the registered owner, except in so far as it

{t} SecB. 6S (1). (2), (H) and 134. (&) 8eo. 61.

(u) Seo. 119. (c) Sees. 60 and 147.

(o) 8eo. 120. (d) Seo.58and Rules 1317, Sch. 8.

(a) Seo. 68. sec. 26.

REGISTERED TITLES. IS

maybe affected by general liens resulting from the registra*
tion of judgments, Mechanics Liens and so forth, (e) or
executions registered and kept in force under the Administra-
tion of Justice Act. (/) Every Qwner is entitled to have hia
estate or interest in land registered, and to receive a
certificate for whatever may be his title or interest
therein, (g) and if the proprietor be a minor or under any
other legal disability, the age of the minor, or the nature
of the disability to deal with his property must be stated
on the face of the certificate, (h) Tenants in common
may each receive separate certificates for their undivided
shares, (t) and each may deal with his interest without
the consent of the other.

Where an easement has been created affecting land under
the new system, to be enjoyed together with other landa
also under the new system, all the certificates must bear
memorials of the easement so created or annexed to the .
lands, ij) Certificates of Title must also refer to any
reservation of mines or minerals, {k)

The proprietor's title is not however enlarged by the
issue of a Certificate of Title, as it is subject to certain
implied qualifications (l) not specially mentioned. These
are : 1. Reservations made in the Grown grant of the land ;
2. All taxes ; 8. Subsisting rights of way and easements;

4. Subsisting leases or agreements for a lease, not over
three years, where the lessee is actually in occupation ;

5. Judgments, decrees, orders and liens which may be regis-
tered after the date of the certificate, and without the
necessity of a memorial being made upon it to indicate the
alteration of interest thereby effected ; 6. Public highways
are always excluded ; 7. Bights of expropriation vested in

(e) Seo. 63 (e). (t) Seo. 62.

(/) 52 Yio. 0. 86, eeos. 18.15. ( j) Seo. 79.

to) Seo. 59. {k) Seo. S4,

{h) Sec. 59. (2) Seo. 68.

14 EEaiSTEBBD TITLES.

•corporations ; 8. Certificates issued on first registration
flnd others derived through the applicant owner, are void
as against the rights of persons adversely in actual occupa-
tion, and entitled to the land or any part of it at the date
of such first registration, provided such occupation is still
continuing at the time of the issue of the subsequent certifi-
cate, (m)

The certificate issued to the proprietor and that preserved
in the register are both original documents, but the one
kept by the District Registrar bound up in the Register
Book is called the duplicate, (n) The certificate is con-
clusive evidence in every court of law or equity that
the registered owner has a valid title for the estate or
interest therein described, and is sufficient to entitle
him to a decree for specific performance against, a person
who mny have contracted for the purchase of the land, (o)
His title to the estate or interest is paramount (saving
in the case of fraud and of the implied qiMlifications
above mentioned) except as against a proprietor claiming
the same land under a prior certificate of title, or through
the holder of a prior certificate of title, and except where by
mistake in describing the boundaries or parcels more land
hasbe9nincludedthanwasintended,but this latter exception
applies only when the holder of the certificate is neither a
bona fide purchaser nor a mortgagee, (p) The certificate is
an absolute bar and estoppel to any action of ejectment, or
for the recovery of the land against the registered owner
except under special circumstances, such as the exceptions
just mentioned or in a case of default as mortgagor or
lessee. {q)

The proprietor may be required to sign a receipt for his
certificate or otherwise to furnish the district Registrar

(m) Seo. 65. (p) Seos. 64, 85, 1S3, 142, 143 Mid

(n) 860.60, Bole 9, Soh. 8. seo. 36. 146.

(o) Seoa. 66 and 147. (9) 8eo8. 67, 89, 103-107.

BEOI8TERED TITLES. 15

with bis signature as a means of preventing fraud, (r) and
in case of loss a provisional certificate of title may be issued
in substitution of the one that is missing, (s) A proprietor
holding certificates of title for several parcels of contiguous
land on surrendering them for cancellation may, by
request have one certificate issued for tbe whole of the
lands, or if tbe lands are all in one certificate he may in a
similar manner obtain several certificates, each for a portion
of the land, (i) On a sale of part of tbe land a memorial of
the transfer is endorsed on the certificate cancelling it as to
the part sold, or it may be cancelled in full and a new certifi-
•cate for the unsold portion issued to tbe owner, and in each
case a new certificate of title is issued to the purchaser.
Where all the land is transferred tbe old certificate is wholly
cancelled and a new one issued to the purchaser who becomes
registered owner, (u) On the loss of a certificate being satis-
factorily accounted for its production may be dispensed with
by the District Registrar on making a transfer ; (v) and if it
is held by a mortgagee or other person interested in the land
he can compel its production for the purpose of allowing
memorials to be made, {w) under tbe penalties imposed by
the Act. {x) Old certificates may be cancelled and new ones
aubstituted for them (y) when they have become illegible
from accident or other cause.

Certificates of title are never signed during the time the
Land Titles Offices are open for the registration of instru-
ments, (z) nor until a final search has been made for liens
or charges against the lands to be registered after the
closing of the office for registration purposes, (a) and thus
the liability of issuing certificates before all proper
memorials and entries have been made is avoided.

(r) Role 15, 8ch. S. sec. 26. (w) Seo. 68 (1) and 121.

W Seo. 68 (7). (;r) Seo. 149.

(0 Role 21, Soh. S. seo. 26. {y) Rale 28, sec. 26.

(tf) Rales 16, 17 and 22. Soh. S. (z) Seo. 24.

sec. 26. and seo. 73. (^j Rule 29, Soh. S. seo. 26.

(v) Seo. 68 (6).

16 REaiBTKATIONS.

REGISTRATION OF DEALINGS WITH LAND.

Mortgages or encumbrances may be registered after appli-
cation and prior to tbe issue of the certificate of title ; (a)
and all instruments for registration under the new system,
except transfers, may be in duplicate. They must contain
the full names and additions of the parties, and with the
exception of several specified official documents, they must
be signed before a witness, who shall verify their execution
in the manner requured for the proof of instruments for
registration under the old system. They are registered in
the order of time in which they are presented for that
purpose, and take priority accordingly. (6) They must
substantially comply with the forms given in the Statute,
on pain of rejection, as unfit for registration, (c)

Instruments in accordance with the forms in use, or
sufficient to pass an estate in lands not subject to the new
system, may be admitted for registration by order of the
inspector, in which case they shall be hold to contain all
such covenants as are implied in instruments of a like
nature under the new system ; and for the purpose of sale
or foreclosure under any mortgage so registered proceedings
may be taken as if the lands were not subject to the new
system, at the option of the mortgagee, (d) When the witness
to an instrument is dead or absent from the Province, it
may be registered upon a Judge endorsing a certificate
that he has been satisfied by proof adduced of its due
execution, (e) Should several instruments signed by the
same person purporting to affect the same estate or interest
be presented at the same time for the purpose of regis-
tration, that instrument shall be registered which is pre-
sented by the person producing the certificate or other
evidence of title. ( f)

(a) Seo. 96. {e) 8eo. 77. («) Sec. 75.

(b) Bale is, 8oh. 8. aec. 26 and sec. 74. (d) Sec. 77. (/) Sec. 78.

REaiSTRATION OF DEALINGS WITH LAND — TRANWBR8. 17

Begistration is effected by endorsing on every certificate
or instrument evidencing title a memorial signed and
sealed by the District Registrar, stating the nature of the
instrument registered, the parties thereto, the time of
its presentation as shown by the ** Day Book," (</) and
referring to the number or symbol distinguishing the instru-
ment, (h) When so registered the instrument becomes part
and parcel of the register for tbe purposes of the Act. (i)
Here may be noted the principal difference in tbe effective
nature of instruments under the new system, which do not
become operative until registration ; it is only after any
such instrument has been so constructively embodied in
the register, and stamped with the seal of the District
Registrar, that it creates, transfers, surrenders or dis-
charges the estate or interest therein mentioned, (j)

No instrument requiring endorsement on the certificate can
be received or registered unless the certificate is produced
or its production dispensed with, (k) and with every transfer
or mortgage presented for registration a certificate from
the treasurer of the municipality within which the lands
affected are situated must be produced, (l) showing that
the lands intended to be dealt with have not been sold
for arrears of taxes under the provisions of the Municipal
Act.

TRANSFERS.

Transfers of estates or interests in land under the new
system may be made by the registered owner by endorse-
ment on the certificate, mortgage, encumbrance or lease, (a)

{g) Rule 10, Sch. S. sec. 26. (k) Bale 17, Scb. S. sec. 26 and
(A) Rale 14, Sch. S. sec. 26 and sees. 57 (a), and 68 (6).

sec. 76. (l) Rale 19, Sch. S. sec. 26.

(t) Sec. 74. (a) Sees. 72. 98.
U) Sec. 74.

MAN.L.A. i2

18 TRAMSFERS.

or by a separate instrument, (6) which can not be reeeired
in daplicate. (c) Begistration is effected by memorial on
the certificate in the manner provided for the registration
of instraments ; {d) the existing certificate and the duplicate
in the register are cancelled wholly or partially according as
the transfer is of the whole or of part only of the interest of
the transferror, {e) a new certificate is made registering
the transferee as owner of the land transferred, and the
old certificate, if wholly cancelled, is retained by the District
Registrar with the memorandum of transfer. If the certi-
ficate is only partially cancelled it may be returned to the
owner after the memorial has been entered upon it, or if
requested or expedient a new certificate for the unsold
portion or any part thereof may be issued to him. {f) It is
the Statute and not the instrument of transfer that effects
the alienation ; the legal estate does not pass until registra-
tion, ig) No seal is required on the transfer and words of
limitation are not necessary ; (h) no covenants need be
expressed, but unless otherwise specified, (i) there is a
covenant by the transferee implied as to the payment of
«absisting charges on the land. ( ;) Until registered any in-
strument signed by a registered owner or others claiming
through or under him purporting to pass an interest or estate
in land, confers on the transferee or assignee and others
claiming through or under him a right to be registered as
owners of such estate or interest, and for the purpose of
securing such registration in cases of difficulty the District
Registrar is given power, on summary application, to make
orders and cause notices to be served to the end that the
person properly entitled thereto may be registered as owner,

(b) 860. 73, 8dh. B. bm. 9S, Soh. F. (/) Rales 16 and 23, Soh. 8.

(e) Seo. 74. {g) Seoa. 74, 99.

(<q Bole 14, Boh. 8. seo. 96 and {h) Seo. 28.

MO. 76. (i) Seo. 144.

(«) Beo. 78. (;) Seo. SO.

TRANBFBRB. 19

dae regard being had to the preservation of all rights ac-
quired by priority of registration under the new system, (k)
Upon registration of a transfer all the transferror's estate or
interest, as well as his rights and obligations, are transmitted
to the transferee, and if it be of a mortgage or charge, the
powers and right to sue pass to the transferee, (l) Persons
acquiring estates or interests should be particular to obtain
the production of the certificate of title and other instru-
ments necessary to be endorsed with memorials of the regis-
tration and the alteration of interest thereby effected, (m)
Husband and wife may validly make transfers to each
other, (n)

The transferror may exclude survivorship amongst joint
trustees by inserting tbe words ** No survivorship " in the
transfer; and joint owners themselves may require the
District Registrar to enter these words on their certificate of
title. The effect in either case is to prevent any dealings
with the lands unless all the joint proprietors are parties, or
unless the sanction of the Court or a Judge be first
obtained, (o) Before any directions are given, public notice
may be required to be advertised, {p) after which the proper
order may be made if necessary for the protection of those
beneficially interested, (q) This inconvenient method of
holding joint proprietorship will not likely be adopted
except for the protection of cestui que trusts and for the
tenure of land dedicated to public uses. Special proceed-
ings are necessary to give effect to the transfer of lands sold
for arrears of taxes after the period of redemption has
expired, (r)

{k) 8eo. 81. (o) See. 82.

(/) Sees. 38, 74. 99 and 146. (p) 8eo. 88.

(m) BqIm 13, 14 and 17, Soh. 8. (q) Seo. 117.

860. 26 and too. 76. (r) Seo. 57.
(a) Seo. 82.

20 TaANBMIBBIOMB.

TRANSMISSIONS BY DEATH OR INSOLVENCY.

No estate in land now passes on intestacy or by will (a)
excepting such devises as are made to the personal repre-
sentative, other estates pass only on conveyance by the
personal representative to the devisee, (b) The executor or
administrator of a deceased proprietor of lands, under the
new system, must now first cause himself to be registered
as owner, on making the necessary proof before the District
Registrar, who makes an entry of the particulars in the
register, cancels the existing certificate of title and issues a
fresh one describing the new registered owner in his
representative capacity as executor or administrator as
the case may be ; (c) his title then relates back and takes
effect as from the death of the deceased owner and he
holds the estate or interests of which he is so registered
as owner upon the trusts, if any, and for the purposes to
which the same is applicable under the provisions of the
Real Property Act, {d) and the laws in force relating to the
distribution of the estates of deceased persons ; but for the
purpose of dealing with lands under the new system he is
deemed to hold them as absolute proprietor, (e) Where trust
estates were held by a deceased owner jointly with other
persons under the condition of '* No Survivorship" the sanc-
tion of the Court is required before the register can be
altered, (/) and when the personal representative is regis-
tered in the place of the deceased in such cases he holds subject
to the same trusts and equities upon which the deceased held
the same, but is deemed an absolute proprietor for the pur-
pose of registrations under the new system while his name
remains as owner on the Register. Upon cause shewn a

(a) Sees. 27, 29 and 118. {d) Sec, 29.

(6) Seo. 29. (e) Sec. 117.

TBANSMIS8I0NB — L£A8E8. 21

trustee may be removed and a new one registered as
proprietor, on application to the Court, (g)

Mortgages, encumbrances and leases transmitted in con-
sequence of the death of the deceased owner must have the
particulars of the transmission noted upon them, and in
such cases proofs are required to be produced to the District
Registrar, and entries made upon the Register, Letters of
Administration or Probate, noting the fact of the registra-
tion of the personal representative as owner in place of the
deceased, (h)

The assignee or trustee of an insolvent proprietor is
entitled to be registered as owner of the bankrupt's estates,
and interests in lands under the new system, and to have a
certificate of title issued to him;(t) he then holds as trustee
for the creditors, and subject to the trusts, if any, on which
the bankrupt proprietor held the lands, but for the pur-
poses of registering dealings under the new system he has
all the powers of an absolute owner, {j )

LEASES.

It IS only the registered owner who can lease lands after
the certificate of title has issued under the new system,
and if at the time there is a subsisting mortgage or encum-
brance, no lease can bind the mortgagee or encumbranoee
unless be has consented to its registration, (a) Implied
covenants bind the lessee to pay the rent and taxes, and to
keep and yield up the premises in repair, accidental damage
by fire, lightning, storms, and reasonable wear and tear
excepted, (b) The implied powers enable the landlord to

to) Sec. 117. (j) Sec. 117.

(h) Sec. 114. (a) Sec. S7.

(4 Sec. 115. {b) Sec. 88.

fnter and view the state of repair » and to re- take possession
for breach of covenants, (c) Short forms of special covenants
are provided, which when used are construed as if the words
of the corresponding full form had been inserted, (d) and all
covenants, whether express or implied, may be modified by
the introduction of express exceptions, (e) Leasehold
estates may be mortgaged or charged, (/} and they may
also be transferred, (g) in which case, unless otherwise
expressed, a covenant is implied that the transferee will
observe the covenants and indemnify the transferror
against liability in respect thereto, (h) The transferee
becomes possessor of all the rights of the original lessee and
subject to all liabilities to which he would have been bound
had he been named in the original instrument as lessee, (t)
A sub-lease does not appear to confer any right of registra-
tion ij) unless under some special circumstances an order
might be obtained from the inspector, (k) and a sub-
tenancy would have to depend upon an unregistered
instrument and the possession of the sub-lessee ; {I)
who has also the right to protect his interests by caveat
against dealings on the part of the original lessee, (m)
Leaseholds may be transmitted by death or by insolvency,
the personal representative or assignee being substituted as
the registered owner, (n) with all his rights and obliga-
tions, (o) the old certificate being then cancelled and a new
one issued, (p) When a lease expires by effluxion of time no
entry in the register is necessary as evidence of its determina-
tion, but upon proof of lawful recovery of possession,(9)

(e) 8eo. 89. (k) Bee. 77.

{d) Sec. 91. (l) Sees. 63, 65.

(e) Seo8. 91, 144. (m) See. 130.

(/) Beo. 96. (n) Seo. 114.

(^) Seo. 98. (o) SeoB. 80, 117.

{h) Beo. 80. (p) Bee. 116.

(Y) Sees. 99, 146. {q) Seo. 90.
( j) Beo. 81.

RABB1I8MT8 — M0BTOAOB8 AND OHABOB8.

tunrender, (r) or the refasal of an assignee to accept the
lease, {s) the District Begistrar is required to make proper
entries which have the effect of causing the lease to
determine. 8uch entry does not release the lessee from
liability where the lessor has re-entered on account of
breach of covenants, {t) nor does an entry of the assignee's
refasal to accept a lease operate to the prejudice of actions
commenced, or causes of action accrued in respect of any
breach or non-observance of the covenants, (u) No surren-
der of a lease which has been mortgaged or charged {v) can
be entered without the consent of the mortgagee or encum-
brancee. (ir)

EASEMENTS.

When easements over lands under the new system are
created as annexed to, or to be used and enjoyed together
with other lands also under the new system, entries are
made on the certificates of title to all the lands affected, (a)

Land under the new system may be subject to easements
by implication or through expropriation, (6) and easements
may be acquired by user and enjoyment (c) in the same
manner as over any other land.

MORTGAGES AND CHARGES.

Mortgages and encumbrances under the new system do
not operate as conveyances of the estate, (a) but are

(r) Sec. 92. (ir) Seo. 92.

(<) 8«08. 98, 94. (a) Sec. 79.

(f) Seo. 90. (6) Seo. 68.

(«) Seo. 116. (c) Seo. 65.

(«) Seo. 96. (a) Seo. 97.

24 MOBTOIOES AND CHAROBS.

hypothecs or real charges. The '' mortgage " under the
new system is intended to be a dealing similar to a mort-
gage under the general law to secure a loan, (b) except that
it does not pass the legal estate charged or made security
in favor of the mortgagee ; (c) but tbe " encumbrance/'
although the expression includes any charge or lien, (d) is
intended to charge lands for the payment of an annuity,
rent charge or sum of money in favor of the encum-
brancee ; (e) and although thus essentially different in
character, yet there is such similarity in their usual
incidents and results that they may be with propriety
considered together.

The implied powers and liabilities, as regulated solely by
the Statute, are analogous, but in mortgages short forms
of covenant adapted to the ordinary relations of mortgagor
and mortgagee, may be used to express the full forms (/)
which are inapplicable in the case of encumbrances. They
may be transferred (p) by endorsement, (h) or by a separate
instrument. A separate instrument (t) or the form of
endorsement provided may be used for the transfer of part
of a mortgage or encumbrance, (J) and the part so trans-
ferred may be given priority over tbe remainder, or made
to rank equally or its payment may be deferred, according
to agreement expressed in the transfer. The rights and
powers as well as the obligations, of all parties are preserved
upon the transfer of mortgages and charges, (k) and it
operates only upon registration, (l)

All mortgaged certificates are impounded by the District
Registrar who, if requested, furnishes a certified copy to

(6) 8eo. 3 (4). (h) Soh. G.

(d) Seo.8(7). (j) Sch. H.

(e) Seo. 96.Soh. D. (k) Sees. 99, 145.
(/) Seo. 91. Soh. N. {I) Sees. 74, 99.

(g) Seo. 98.

MOBTOAOBa AND CHARGES. 85

the owiier to enable him to deal with his interest in the
land, and the mortgagee for his security may in like manner
obtain « Certificate of Charge shewing the priority of rank
to which his claims are entitled, (m)

The discharge of mortgages or encumbrances, either
wholly or partially, is effected by an entry in the register,
which can be made only upon the production of the instru-
ment with a duly signed endorsement, evidencing the
discharge, or by a separate instrument of discharge, duly
executed by the mortgagor, or annuitant, as the case may
be. (n) When a mortgagee is absent, and there is no
person in the Province authorized to receive money accru-
ing due, payment may be made to the Provincial Treasurer,
and his receipt will be sufficient to procure the entry of dis-
charge, the money without interest being paid over by
the Provincial Treasurer, to the person entitled to receive
it. (o) An encumbrance may likewise be discharged on
proof of payment of all arrears, and that the annuitant
is dead, or that the annuity has ceased according to the
terms of the instrument by which it was created, {p)

When estates or interests in lands are mortgaged or
encumbered, they cannot be leased without the consent of
the mortgagee or encumbrancee, (q) and no leasehold so
affected can be surrendered without a similar consent, (r)

There is no provision for the registration of sub-mort-
gages, but a mortgage of a mortgage may be effected by a
transfer, accompanied by an agreement as to the conditions
of defeasance, converting it into a sub- mortgage, as between
the transferror and transferee protected by caveat, (s) or
perhaps filed by order of the inspector, (0 or deposited as a
declaration of trust, (n)

(m) 8m. 109. (r) Sec. 92.

(ft) Bee. 100. («) Sec. 180.

(o) Sec. 101. (/) Sec. 77.

(p) Sec. 102. (tt) Sec. 86.
iq) Sec. 87.

S6 FOWKB OF BlIJB.

Equitable mortgages are recognized (v) by the Act,
may be effected by the mere deposit with, a banker of
creditor of the certificate, or other instrument evidencing
title; the equitable mortgagee may, if he desires^ obtain
protection by filing a caveat, {w) which is the only means
by which he can secure priority over lien holders and judg-
ment creditors, {x)

On default being made under the terms of the mortgage
or encumbrance, the mortgagee or encumbrancee, after the
default has continued'for one month, or such longer period
as may be expressly limited, may give a written notice to
perform the covenant, including if deemed proper a notice
of his intention to apply for an order of foreclosure, of
which notice a copy should be filed in the proper Land Titles
Office, (y) Such notices should be given to the mortgagor,
encumbrancer, and all other persons appearing to be
interested in the lands, at the date when the notice is filed,
and, unless otherwise expressly required by the conditions,
set forth in the mortgage or encumbrance, he may forthwith
enter and take the rents, issues and profits, {z) and after the
default has continued for another month, he may sell the
land, receive the purchase money and execute a trans-
fer, (a) in the same way as power of sale may be exercised in
cases under the general law, and upon registration of such
transfer the land vests in the purchaser, who is entitled to
a certificate of title free from such mortgage or encum-
brance, or any mortgages or encumbrances registered subse-
quent thereto. (6)

The moneys realized by any such sale are applied, firstly^
in payment of the expenses of the sale ; secondly, in pay-

(v) 8eo8. 6S (4), (6), (7) ; 109, 122. (z) 8eo. 103.

(w) 8eo. 180. (a) Seo. 104.

(x) Sec. 74. (ft) Seo. 106.

(y) SecB. 108, 106, 108, 181 ; Rule
28, Soh. 8. Bee. 26.

F0BB0L08UBB — ^POWRBS OP ATTOBliBT. 27

iiMit of the money due the mortgagee or encambrancee ;:
thirdly, in payment of subsequent mortgages or encam-
hrftnees, if any, in the order of their priority, and the sur-
plus, if any, is payable to the mortgagor or eneumbrancer. (a>

Foreclosure may be obtained after notice to all interested
parties in the case of mortgages under the new system where
default has continued for six months and an attempted sale by
public auction has proved abortive, (c) Upon application for
foreclosure, notices may be required to be advertised offering
the lands for sale, and the District Registrar then appoints-
a time, after which the foreclosure order may issue unless in
the interval the land be sold or the moneys paid. The*
entry of the foreclosure order in the register vests the land
in the mortgagee or his transferee, who has proceeded to fore-
closure, free from all rights or equity of redemption of the
mortgagor or any persons interested under instruments
over which the foreclosed mortgage had priority, and a
fresh certificate of title is issued accordingly, (d) The old
certificate of title must be surrendered for cancellation {e}
or its production dispensed with ; (/) to avoid trouble in
such cases mortgaged certificates are impounded in the
Land Titles Office from the time of the registration of the
mortgage or encumbrance for the use of all persons in-
terested, (g)

POWERS OP ATTORNEY.

An attorney with power to sell lands may apply in the
owner's name to have the title registered under the new
system (a) and in the discretion of the District Registrar

{€) Bnle 28, 8oh. S. seo. 26, and (/) Sec. 68.

8«o- 10*- to) Seo. 109.

W Bee. 107. (a) Bulee 2 and 6; Sob. 8. mo. 2&
(e) Bole 17. Soh. S., 8. 26. and seo. 41.

^28 P0WBB8 OF ATTORNEY — ^JUBISDIOTION OF THE COUBT.

an agent may make an application on behalf of the
owner. (6)

A form of power of attorney by a person who has been
registered as owner is provided, which can be modified to
eoit circumstances^ it must be entered in a special book for
recording Powers of Attorney, and if the lands to be dealt
with are specified an entry must also be made in the regis-
ter, (c) A general form is also given, which can be made to
apply to all lands under the new system, of which the prin-
cipal may at any time, either before or after its date, become
the registered owner, {d) Powers of attorney registered
under the old system are made valid and available to the
extent of the authorities given therein by the deposit of
attested copies in the Land Titles Office, {e) Revocations
of powers of attorney may be registered and notices given
to the District Registrar of the death of the principal, which
take e£fect only from the date of registration (/) as to instni-
ments executed subsequently. Express authority would be
required by the attorney to lease mortgaged lands, ig) All
powers of attorney and revocations require attestation and
should be verified by the subscribing witness. A power of
attorney given for valuable consideration, or made irrevoc-
able, should be protected by caveat, (h)

JURISDICTION OF THE COURT OF QUEEN'S

BENCH.

The jurisdiction of competent Courts is in no manner
affected or taken away in cases where there has been
actual fraud, or over contracts respecting land, or over

{b) 8eo. 40. (/) Sees. 74, 112.

(e) Form K. s. 110. (g) Sec. 87.

(d) Form L. a. 111. {h) Sec. 130.

(e) Sec. 111.

JURISDICTION OF THE COURT. 29

equitable interests in real estate ;(a) and a Judge in Cham-
bers has authority to make orders and decrees respecting
landy or in respect of matters or instruments relating
thereto, and entries a£fecting lands ; but if a certificate of
title is ordered to issue it must appear that the person
to be registered as owner has a safeholding title, (b)

In matters of caveat special powers are given to the
Court and Judges for the summary disposal of contested
claims, (c) In matters relating to trusts the Court or a
Judge has authority to make summary orders for the
removal of trustees and assignees, and the appointment of
other persons in their stead, (d) The Court of Queen's
Bench may enforce a summons of the District Registrar; (6)
and a Judge of the Court of Queen's Bench in Chambers
may by summons or warrant enforce the production and
surrender of instruments (/) required by the District Regis-
trar for alteration or cancellation ; (g) and may make
orders respecting them, and for the commitment of persons
refusing or neglecting to produce or surrender such instru-
ments, {h)

A Judge in Chambers may on summons order the
production of documents for inspection at the Land Titles
Office ; {i) and in the hearing of any matter arising under the
Beal Property Act the Court or a Judge in Chambers may
summon persons as witnesses or to be made parties to
the cause, and in disposing of the matter may award
costs, ij)

The Court or a Judge may give opinions on doubtful
matters of law or fact, on reference from the District

(a) Sec. 129. (/) Sec. 121.

(ft) Sec. 123. (g) Bee. 68.

(e) Sec. 130. {h) Sec. 122.

(<2) Sec. 117. (0 Sec. 124.

{€) Sec. 68. (j) Sec. 125.

so JUSISDIOnON OF THB OOXTELT.

Eegistrar ; (k) and a Jndge in Chambers has power to
decide or make orders respecting uncertain or difficult
matters of administration referred to him in a similar
manner. ({)

Upon the hearing of any matter, all interested persons
:and the Attorney-General for Manitoba may appear and be
heard by the Goart or Judge, (m)

An appeal lies to a Judge in Chambers against any act
•or order of the District Registrar, and such order may
thereupon be made as the circumstances may require as
to the matter of the appeal and as to costs, (n) The same
rules of procedure apply in actions and proceedings under
the Act as are in force respecting actions and proceedings
of a similar nature in the Gourt in which such action or
proceeding may be tried or taken, but they are not rendered
invalid by technical irregularities, (o) New rules, regula-
tions and forms of proceedings may be made by the Gourt
in regard to matters arising under the Act. (p) The fees
on proceedings are such as are fixed by the Gourt, or
payable on proceedings of a similar nature in Court, (q)

All decisions of a Judge or Court, whether on the first
hearing or on an appeal, are subject to appeal in the same
manner as other appeals are taken from such Court, (r)
While any suit or proceeding in Court is pending a cer-
tificate of lis pendem may be filed in the Land Titles
Office, (a) which, until discharged, prevents dealings which
might prejudice the rights of the person claiming interest
in the suit, but no lis pendens can be filed without the order
of a Judge, after a caveat relating to the same matter
has lapsed or been withdrawn or discharged, (t)

(k) Sec. 119. ip) Seo. 127.

(0 Sec. ISO. (q) Sec. 128.

(m) Sec. 125. (r) Sec. 126.

(n) Seo. 118. («) Sees. 108. 181.

<o) Sees. 180 (12), 142. (() Seo. 130 (U).

CAVBAT8. 81

CAVEATS.

Caveats are notices to the District Registrar of rights
claimed in land subject to the new system, and cautioning
Iiim and the public generally against dealings which might
be to the prejudice of the claimant; they are analgous to ex
j}arte interim injunctions in restraint of dealings with
estates or interests in land.

Caveats may be lodged by order of the Court or a Judge, (a)
or by the District Registrar, to protect the rights of the
Crown or persons under legal disability, or for the purpose
of preventing fraad or improper dealings. (6) Caveats of
this description and those lodged by or on behalf of benefi-
ciaries under a will or .settlement, (c) are continuing caveats
and do not lapse by mere efSuxion of time, unless so stated
in the order for its filing ; {d) but must be disposed of by
withdrawal or by order of the Court, {e) Every other
caveat must state the names and additions of the person
on whose behalf it is filed, and mention some place within
Manitoba where notices and proceedings respecting it may
be served ;(/*) it must be signed by the caveator, his attorney
or agent, and supported by an affidavit or statutory declara-
tion setting out the nature of the claim and the good faith
of the claimant, {g) Caveats are entered in a special register
and notice of the filing of the caveat is at once given to the
applicant for registration or the registered owner as the
case may be. (A) A caveat lodged before the title has been
registered forbids such registration and suspends all investi-
gation and proceedings in the Land Titles Office until it has

(a) Sec. ISO flS), (14), uid Rule 11, («) 8m. ISO (7) (13) (15).

Soh. R. (y) Rule 14. 8oh. R., seo. 180.

(6) Sees. 68 (6), S6 and 117. ^g) geo. 130 (8), and Soh.Q.. seolSO.

(d) Seo. 180 (14) ; Role S8. Boh. 8., 8oh. 8., seo. 26.

8.26.

82 CAVEATS.

been withdrawn or lapses, or is discharged by the Goart or
a Judge in chambers, (i) it remains in force for one calendar
month from the day it is filed, after which it lapses as a
matter of course; (j) and upon an entry (A:) to that effect
it ceases to have any force unless within the month pro-
ceedings have been taken to establish the cavator's rights,
and a copy of the petition ({) with proof of such proceedings
have been filed in the Land Titles Office, (m) or an order
obtained extending the time for such proceedings, (n)

A caveat lodged after the issue of a certificate of title pre-
vents the registration of dealings so long as it remains in
force, except subject to the claim of the caveator ;(o) it lapses
upon notice being given that the proprietor intends to regis-
ter dealings, unless within fourteen days from the service of
such notice on the caveator, he takes proceedings in the
manner above mentioned, (p) or obtains an order restraining
registrations which may be granted upon indemnity being
given against any loss resulting from delay, {q) or upon
such conditions as the Court or Judge may impose, (r)
otherwise, upon an entry by the District Registrar, it ceases
to have effect. («) All caveats may be withdrawn (t) subject,
in ordinary cases, to the payment of damages and costs
incurred in consequence of its filing, (u) and in every case
caveats may be discharged with or without costs by order
of the Court or a Judjj;e. (r)

After a caveat has lapsed or been withdrawn or discharged

(t) Sec. 130 (9). (11). (12). {q) Sec. 130 (4) (5).

(j) Bee. 130 (2). (r) Sec. 130 (16).

(k) Bee. 130 (7), (13). («) Sec. 130 (7) (13).

{I) Rules 1 and 2. Bch. B.. sec. 130; (t) Bee. 130 (7) (9) (13).

Rule 23. Soh. 8., sec. 26. ^u) Sec. 130 (9) (10) and Rule 10,

(m) Sec. 130 (11). Sch. H.

(n) Sec. 180 (16). {v) Sec. 130 (12) (15) and Rules 5

(o) Sec. 130 (3) (6). .10, 12, 13 Sch. R.

Ip) Sec. 130 (11) and Rules 1 and 2,

Sch. R. ; Rule 23, Sch. S. sec. 26.

CLAIMS AGAINST REOI8TERED INTEBE8TS. 88

HO lis pendens or caveat relating to the same matter can be
filed, except by the District Registrar or by order of the
•Court or a Judge, (w)

The procedure in matters of caveat is summary, but orders
have the e£fect of judgments of the Court and must be
obeyed by the District Begistrar ; (r) like all other orders
and decrees they are subject to appeal, (2/) and if a certificate
of title is ordered to issue it must appear that the person to
be registered as owner has a safeholding title, (z)

RIGHTS OF CREDITORS AGAINST REGISTERED

INTERESTS.

The plaintiff or any person interested in a suit affecting
lands may file a certificate of lis pendens, which has the
effect from the time of its filing of preventing registrations
being made except subject to the rights or interest claimed
in the suit, (a) After a caveat has lapsed or been withdrawn
or discharged, a lis pendens under any proceeding in
relation to the same matter cannot be filed without the
authority of a Judge, (b) but the vacating of a certificate of
lis pendens would not interfere with the subsequent filing of
a caveat. Certificates of judgments, decrees or orders for
the payment of money against a registered owner, both at
common law and in equity, may be registered under the new
system, and entered in the caveat book, and if they contain
a specific description of lands, an entry is also made against
them in the register, (c) From the time of registration
they charge the lands of the judgment debtor, with a lien

(it) Sec. 130 (14) ; Sec. 131. (a) Seo. lOS, 131.

(x) Sec. 130 (7) (13) and Kales 8 (6) Sec. 130 (14).

and 12 Sch. R. (<.) Rules 8 and 13. Soh S. sec. 26 ;
(y) Seo. 126. sees. 74 and 76.

(1) Seo. 123.

MAN.Ij.A o

84 BBHBDIE8 FOR LOSS OF SIGHTS.

which may be enforced by the Court ; and mechanics' liens
may be registered and enforced in a similar manner. (^
Beneficiaries may have summary relief by the removal of
a trustee or assignee, (e) and generally all rights may be
protected by caveat (/) and enforced by the Court.

REMEDIES FOR LOSS OF RIGHTS.

An Assurance Fund is formed by the payment of a fee of
from one-tenth to one-fourth the value (a) of lands on the
first registration of title under the new system, and upon
each subsequent transmission by death or insolvency, (b)
This fund is managed by the Provincial Government, (c)
and is intended to assist {d) in the payment of damages,
which may be recovered by any person sustaining loss or
damage through any of the following causes : (e)

1. Omissions, mistakes or misfeasances of ofiicers acting
under the provisions of the Act applicable to the new
system. (/)

2. Being deprived of an estate or interest in land through
the bringing of the same under the new system, or the
registration of some other person as owner.

8. Errors, omissions or misdescriptions in any certificate
of title, or in any entry or memorial in the register, or in
any certificate of charges.

4. Being by the provisions of the Act barred from bringing
an action of ejectment or other action for the recovery of
the land, estate or interest, or of damages.

(d) Sec. 63. (c) Seo. 141.

(e) Seo. 117. (d) Seo. 1S5 (a).
(/) Seos. 68 (5), and 180. (e) Seo. 135.

(a) Sec. 71. (/) Sec. 135.

(h) Seo. 140.

REMEDIES FOR LOSS OF RIGHTS. 86

5. When the person liable for damages is dead or cannot
be found within the Province, {g)

The plaintiff in any such action has to pay full costs of
defence if non-suited ; (h) and the action is subject to a
limitation of six years, (t) with the usual proviso in cases of
legal disability. No such action can be maintained in favor
of any person who, after notice (/) or becominc aware of tlm

On page 84. line 8, should read—" from one-tentfi to one-fourth of one
per cent, upon the value {a) of lands on the "

ui Hi iftuy euiry or memorial in the register, may recover
damages in an action at law against the person through
whose fraud, error, omission, misrepresentation, misdes-
cription or wrongful act, the erroneous registration was
made or title acquired to the land, estate or interest, of which
he has been so deprived ; (m) the bringing of such action
does not prejudice his right of action against the District
Begistrar on fiat of the Attorney-General ; (n) or against
the assurance fund where the person liable for damages is
dead or has absconded, or for such amount as the sheriff
may be unable to recover on execution against the person

(0) Sec. 134. (k) 8eo. 139.

(h) Sec. 136. (I) Sees. 64. 132, 133, 134. 139.

(t) Seo. 137. (m) Sees. 64, 132.

U) Sec. 52. (n) Sec. 132.

86 THE TEURITOBIAL ACT.

80 liable, (o) But he cannot recover damageB unless such
person has been guilty of fraud, misstatement or \vrongfnl
acts, nor is a bona fide purchaser or mortgagee liable to
ejectment or damages on the ground of fraud or error upon
the part of another person, (p)

The Provincial Treasurer may, by summary process,
recover any amount paid out of the fund, {q)

The ordinary limitations apply to actions of ejectment.

The foregoing are the remedies shortly stated as specially
provided by the statute, but the subject is one full of com-
plication and difficulty, and these notes are therefore to be
regarded as a mere outline of the proceedings likely to be
adopted in the simplest cases only ; it must be constantly
borne in mind that although the statute aims at giving the
character of authenticity and incontestability to official
instruments, memorials and entries, (r) yet the jurisdiction
of competent courts has not been affected or taken away ;
through them relief can always be obtained on the ground
of fraud ; and they still have the same authority as hereto-
fore in matters of contract for the sale or other disposition
of lands, and over equitable interests therein ; (s) and all
rights may still be bound by estoppel, {t)

THE TERBITORIAL ACT.

In the North West Territories the administration of the
Act is controlled by the Government of Canada, and the
provisions of the Territorial Act are, as a rule, similar to
those of the Act which has been already discussed ; at

(o) SeoB. 134, 139. (r) Sees. 64, 66. 67, 74. 109, 133

(p) SeoB. 64, 67, 133. *»d 1^7.

(q) Sec. 138. W Beca. 123, 129. 146.

(i) Sees. 52. 137.

THB TBBRITORIAL ACT. 87

least, the effect of their provisions so generally coincides as
to leave but little room for separate comment.

As the Territorial Act is administered by the Dominion
Government, who also hold all public lands in the Terri-
tories, the certificate of title is made to take the place of
the Grown grant (a) in the case of lands alienated since
the Act went into force on the first of January, 1887, (b)
and the remedy for loss of an estate or interest would
perhaps be restricted to that provided by the Dominion
Lands Act, or in damages in an action prosecuted against
such person as a Judge might appoint, (c)

Titles which are defective, or which are clouded or
encumbered, or respecting which any matter arises requir-
ixig special investigation, must be referred to a Judge, (d)
who is required to examine all titles submitted to him and
has special powers of a nature similar to those given to the
District Begistrars in Manitoba, (e) and also the power to
adjudicate upon adverse claims (/*) after notice has been
given. by advertisement.

Execut'ons may be registered to bind and affect lands in
the Territories, {g) and all instruments must be executed,
according to the forms given in the Act, in order to be
effectual, (h)

Transfers may be executed in duplicate, when they are
not made by endorsement, (i)

Mortgages or encumbrances may be discharged on proof
of payment by order of a Judge, (j) and in case of absentees
a discharge may be effected by the payment of the mort-

(a) T. sec. 44. (/) T. sec. 61.

(b) T. see. 2. (g) T. sees. 61 and 94-98.

8S TEE TBRBTTOBIAL ACT.

gage money into a chartered bank npon the order of a
Jndge. (fc)

The Land Assurance Fnnd is formed by the Minister of
Finance and Receiver-General of Canada setting aside one-
fifth of all fees received, (l) and a special commission vary-
ing from one-fifth to one-tenth of one per cent, is payable
on the valae of all property registered, {m)

The actual wording of some sections in the Territorial
Act differs from that of the corresponding provision in
the Manitoba Statute, but these are not of sufQcient import-
ance to call for special reference here ; it may be aasumed,
as a general rule, that for every enactment in the Manitoba
Statute, which is essential to the operation of what is
therein termed the " New System," there is a parallel pro-
vision in the Terrritorial Act, and the foregoing analysis
will be found to contain the principles laid down for the
practical operation of the system of title registration in the
North-West Territories, as well as in Manitoba.

(i) T. SM. M. (in) T. Bee. 138.

(I) T. aeo. 106.

PART II.

THE REAL PROPERTY ACT

OF 1889.

PROVINCE OF MANITOBA,

With Notes and References.

THE REAL PROPERTY ACT OF 1889;

Being Chapter i6 of the Statutes of Manitoba
Passed in the 52ND Year of her Majesty's
Reign, With Notes.

An Act respecting Real Property in the Province

of Manitoba.

[Assented to 5th March, 1889J]

Whbbeas, it is expedient to amend and consolidate 48 Victoria, Preamble
Chapter 28, and amendments thereto :

Thesbfosb, Her Majesty, by and with the advice and consent of the
Legislatiye Assembly of Manitoba, declares and enacts as follows :

Bbobt Title.
1. This Act may be cited as ** The Real Property Act of 1889." Short Title.

The Acts consoHdated are 48 Vic. cap. 28, which
came into force on let July, 1885 ; 49 Vic. cap. 28,
which came into force on 28th May, 1886 ; 60 Vic. c. 11,
which came into force on 10th June, 1887 ; and 51 Vic.
caps. 21 and 22, which came into force on 18th May, 1888.

Commencement.

%• This Act shall come into force immediately on being assented to. When in

force.

(1) This Act shall be substituted for Chapter twenty -eight of Forty- Applion-
eight Victoria, as applied to the present Land Titles Office at Winnipeg, *^°" ®' ^^'^
except that the provisions of said Chapter twenty-eight constituting or
affecting the said Land Titles Office at Winnipeg and its officers shall

BBPEALING CLAUSES.

Interpre

tatlon

clauses.

" Land."

remain in foroe nntil snoh office is abolished under Section eighteen
hereof. The Registrar-General until snoh abolition shall exercise all
the powers conferred by this Act on District Registrars.

This section, with sections 18 and 152, are the clauses of
the Act, which effect the repeal from the 5th of March, 1889,
of the former Acts of 1886, 1886, 1887 and 1888, but in the
Land Titles OJjice at Winnipeg^ being the official designa-
tion applied to the office established for the whole Province
under the Act of 1885, the repeal of these Acts was sus-
pended so long as it continued, and the Registrar-General
and all the officers appointed under the repealed Acts were
required to act under them until the office was abolished by
order of the Lieutenant-Governor-in-Gouncil ; the pro-
visions of the new Act are in nearly all cases identical with
the Acts which have been consolidated, and the second
clause of this section gave the Registrar- General authority
to use any new powers conferred upon District Registrars as
auxiliary to those conferred upon him under the old Acts
so long as he continued in office.

Bee note to sec. 4.

Intebpbetation.

3. In this Act, and in all instruments purporting to be made or
executed thereunder, unless the context otherwise requires : —

(1) The expressions " Land'* and ** Lands" shall extend to mean and
and include lands, messuages, tenements and hereditaments, corporeal
and incorporeal, of every kind and description, whatever the estate or
interest therein may be, and whether legal or equitable, together with aU
paths, passages, ways, watercourses, liberties, privileges, eibsementa,
mines, minerals and quarries appertaining thereto, and aU trees and
timber thereon and thereunder lying or being, unless any such are
specially excepted ;

See note to sec. 40 post.

Easements in gross would not be included. Ex parte
Johnson 5 W. W. and A. B. (L.) 55.

The meaning of '' land " as defined here is more extensive
than in the fourth section of the Victorian Transfer of Land

INTERPRETATION. 48

Statute, which is as follows : '' The word ' land ' shall
include messuages, tenements and heridltaments, corporeal
or incorporeal, and in every certificate of title, transfer and
lease made under this Act such word shall also include all
easements and appurtenances appertaining to the land
therein described, or reputed to be part thereof or appur-
tenant thereto."

Under this section it was held that an easement appurte-
nant over land not under the statute could not be shewn
on the certificate of title to the dominant tenement : Ex
parte Cunningham, 3 V. L. K. (L.) 199. Nor could an ease-
ment appurtenant over land under the statute where the
owner objected: Ex parte Bisself 5 V. L. R. (L.) 53;
although the contrary may be implied from the holding in
Jones V. Park, 6 V. L. R. (L.) 167. It was queried in Ex
parte Cunningham, ubi supra, whether an incorporeal heridi-
tament could be the subject of a certificate of title.

The decision of the Supreme Court Ex parte Bissel has
been ignored by the Office of Titles in Victoria for reasons
referred to by the Commissioner of Titles {vide a*BeckeVs
Transfer of Land, p. 76).

See also sec. 28 and sees. 118-117.

(23) Every certificate or other instrument issued to or made in favor
of a corporation, aogregate or sole, shall be deemed to extend to and
include the successors of such corporation ;

(24) The expression ** Old System " shall mean the system of registra-
tion provided by Chapter Sixty of the Consolidated Statutes of Manitoba
and amendments ;

(2o) The expression *' New System *' shall mean the system of regis-
tration provided by this Act ;

(2G) And generally, unless the contrary shall appear from the context,
every word importing the singular nun^ber only shall extend to several
persons or things, and every word importing the plural number shall
apply to one person or thing, and every word importing the male sex
only shall extend to a female, and shall include a body corporate, and
whenever a form in the schedule hereto is directed to be used, such
direction shall apply equally to any form to the like effect, or which for
the same purpobe may be authorized under the provisions of this Act,
and any variation from such forms, not being a variation in matter or
substance, shall not affect their validity or regularity, but they may be
used with such alterations as the character of the parties or the ciroam-
stances of the case may render necessary.

The Schedules are printed following the sections in
which they are referred to. See sec. 25 post.
See notes to sees. 77 and 144 post as to the use of forms.

LAND TITLES OFFICES — DISTRICT BEGI8TRAB8 47

This clause does not prevent the application of the
general interpretation clause, G. S. M. cap. 1, sec. 7, to this
Act or to instruments executed under it ; e.g., sub-clause 10
of the general interpretation clauses in the Consolidated
Statutes has the words '' and the converse/' which are here
(in sub-clause 26), omitted. By Rule of Practice No. 1
(Sch. S. sec. 26 post), the provisions of the above Act are
made applicable to the construction of those rules so far as
applicable, and they would also apply in all cases where
they are not incompatible with this section.

Land Titles Offices — District Reoistbabs.

4* The Lieutenant-6ovemor-in-Coancil may constitute such por- Land Titles
tions of the Province of Manitoba as may seem proper into Land Titles
districts. In each of such districts, at snch place as the Lieutenant-
Grovemor-in-Goancil may appoint, there shall be an office to be called
The Land Titles Office for {ituert here the name of the dittrict.)

See sec. 19.

On 25th July, 1889, an Order-in-Council came into force
constituting the County of Brandon a Land Titles District
under this Act by the name of ''The Land Titles
District for Brandon," with an office in the city of Brandon
to be called '' The Land Titles Office for Brandon," and on
31st October, 1889, the municipality of North Cypress was
added to the Brandon District.

On Ist August, 1889, an Order-in-Gouncil came into force
constituting ** The Land Titles District for Portage La
Prairie which, comprised on that date only the County of
Portage La Prairie, but to which, on I5th August, 1889, the
County of Westbourne was added— the office being at the
town of Portage La Prairie and called ** The Land Titles
Office for Portage La Prairie.

Subsequent Orders-in-Council have provided :

1. That on and after the 9th day of October, 1889, the
County of Beautiful Plains should be added to the Land
Titles District for Portage La Prairie.

48 LAND TITLES OFFICES.

2. That on and after the 28rd day of October, 1889, the
Counties of Minnedosa and Biding Mountain should be
added to the Land Titles District for Portage La Prairie.

S. That on and after the 81st da}- of October, 1889, the
County of Fairford and the municipalities of North Norfolk,
Belcourt and Woodlands should be added to the Land Titles
District for Portage La Prairie.

4. That on and after the 5th day of November, 1889, the
County of Bussell should be added to said Land Titles Dis*
trict for Portage La Prairie.

On 31st October the Land Titles OflSce for Winnipeg was
constituted and the Land Titles District of Winnipeg erected
composed of the County of Selkirk, the City of Winnipeg,
and the municipalities of St. Francois Xavier, South Nor-
folk and South Cypress,

Another Order-in-Council will come into force on 14th
January, 1890, establishing a Land Titles District, com-
posed of the Counties of Duflferin and Bock Lake, with its
oflSce atMorden.

pistrict. 5. For each of the said districts the Lieutenant-Governor-in-Coancil

shaU appoint an officer to be caUed the District-Registrar. No person shall
be appointed a District- Registrar unless he is a barrister or attorney in
the courts of the Province of Manitoba.

Other offi- Q, The Lieutenant-Governor-in-Council may appoint snch examiners
appoiDted. of titles, clerks and other officers as may be deemed advisable for each
district, and may also appoint one or more inspectors, who shaU have
such powers and duties under this Act as may be assigned to him or them
by the Lieutenant-Governor-in-Ck)ancil. All officers and other persons
appointed under this Act shall hold office during the pleasure of the
Lieutenant-Governor-in-Council.

Deputy y. fhe Lieutenant-Governor-in-Council may appoint a person to act

tDay be

appointed, as the deputy of any officer appointed by or under this Act, and such

deputy shall be entitled to act in that capacity during the absenoe or

iUnesB of such officer, or in case of the death of such officer, until a

successor is appointed ; and such deputy while so acting shaU have all

the powers of the officer for whom he may be acting. Provided that

OBGANIZATION. 49

the Deputy of any officer must have the qnalifioationB provided for by
this Act for saoh officer.

Compare sec. 15 post.

8* Every District- Registrar, before he enters upon the execution of Oath of
his office, shall take the oath of office and give security to the satisfaction
of the Lieatenant-Governor-in-Conncil, under the Act of this Legislature
passed in the 46th and 47th years of Her Majesty's reign, chapter 7, and
be subject to said Act.

See Amendments by 51 Vic. c. 9, and 52 Yic. c. 3, ss. 4, 5.

9. Each District-Registrar shall have a seal of office approved by the Seal of
Lieutenant-Governor-in-Council. ^^'

See note to sec. 74 as to sealing of instruments being
necessary to give them effective force.

10« The present Registrar-General or his successor appointed under Registrar-
the Real Property Act of 1S85,| shall, when so directed by the Lieutenant- gi;^iyD.B.
6ovemor-in -Council, cause to be furnished to each of the District- ^h books.
Registrars, appointed under this Act, the original or copies of all regis- copies
ters or entries of any instruments in the present Land Titles Office at ^'^^'^^
Winnipeg affecting any lands in the district of such District-Registrars
respectively, of indexes of names, and of all other books and also of all
the documents or instruments affecting the said lands which may been
file in said office, (a) and the District-Registrars shall keep the same in
their respective offices, and deal with them as if they were made or
registered under this Act. (6)

(a) See sec. 85, post.

(b) Lands registered under the Act of 1885 and amend-
ments would, upon the formation of a new district, in
which they were included, become subject to the provisions
of this Act, although the certificate of title was issued
under the Act of 1885.

See sec. 16 and notes in pede.

11« At such times and in such manner as the Lieutenant-Governor- Transfer of
in-Conncil may direct, all books, records, documents, plans and other ^^^it^i^
papers now in the possession of Registrars appointed under the provisions try oilloes
of Chapter sixty of the Consolidated Statutes of Manitoba for the regis- Titles
tration divisions included in each of the said districts constituted under ^^^''
the provisions of Section four of this Act, shall be transferred from the
HAN.L.A. 4

H. B. COY. 8CBTEY.

n ot anob RegUtran kod from the ReKiatry Offioes in which ibej
ftM now depoiited to the building erected or provided for the Land Titlv
Office for anoh diatriol.

El^Oa 19. Theoopy of the PUos o( Snr irey of the HndgOD'a Bay Campuiy.

atar, ^i£iU)d the copy of the Begieter Book ot the Hudson's Bay Company,
^j^*'"' referred to in " The Hndson's Bay Company Land Register Act," shall
remain tor safe keeping in the Laud Titles Office, at Winnipeg, and shall
hereafter be under the charge and ooutrol of the District-Kegistrar, as
part of the official books and instrumeiitB ot the Land Titles Office at
Winnipeg.

The copy of plans of survey, if ever mode under the
Hudson Bay Co. Land Register Act, have been apparently
mislaid and no properly autbeuticated copy appears to have
ever been on file in the registry oSSces for Winnipeg or for
the County of Selkirk as provided by the Act. The Hndaon
Bay Oo. survey extended from Lake Wianipeg up the Bed
River from St. Peters, on the east side to lot 208, and on
the vest side to lot 53 of the parish of St. Norbert, both
inclusively ; and westward along the Assinuiboine from its
junction with the Bed to near the western limit of the parish
of St. Francois Xavier.

The holdings were surveyed in narrow strips having
usually a frontage on the rivers and a depth of about two
miles.

The copy of the register is on file in the Land Titles
Of&ce at Winnipeg. It purports to be a register of lands
allotted, sold or leased by the Hudson Bay Co. on both
sides of the Bed Biver from Lake Winnipeg southwards to
about lots 53 and 208, as shewn on Plans of the Dominion
Oovernment Survey of the Parish of St. Norbert, and on
both sides of the Assinniboine Biver from its confluence

rith the Red to the weetera limit of the Parish of St.

Traucoie Xavier.
The following extract from an ofBcial report to the

>epartment of the Interior by the late Chief Justice Wood

m a case submitted to him under the Dominion Land's

H. B. OO. LAND BE0I8TBR. 61

Act, may prove interesting and of some use in determining
the value, as evidence, of entries in the Hudson Bay Co.
Begister : —

" The first objection to the claim of L. is that the sale
and transfer by A. V. to B. L. is not evidenced by writing
under the hand of A. V., and the transaction is therefore
void, and voidable especially as against the vendor and
assignee in good faith and without notice."

*' To this I answer that in law the sale and transfer,
though verbal, is good to pass the title of A. Y. to B. L. in
the lands, for it was accompanied by a change of possession,
and of the position of the parties in respect of the lands to
such an extent that equity would intervene and declare the
contract though verbal, valid and binding, and would order
its specific performance ; and what may be done equity looks
upon as having been done, and under the first and
rational principle lying at the foundation of this procedure,
I think in the present case I must look upon the verbal
contract between A. V. and B. L. as completely executed
and that the estate and interest of V. in the lands passed to
L. as fully as if a formal deed had been executed between
the parties."

'' The second objection is that no entry of this sale or trans-
fer was made in the Land Register of the Hudson Bay Co.
under the number of this lot, in that Begister 588 ; but that
according to that Begister A. Y., at the time G. bought and
took a transfer of the one chain in width part of lot 588,
stood in the Begister as the owner of the lot, and therefore,
giving the proper effect to the entries in the Begister, A.
Y. must be considered as at that time owning the lot, as
having a disposing power over the same, especially in so
far as purchasers in good faith and without notice are con-
cerned."

" This entire proposition is a mistake in all its parts. The
Begister of the Hudson Bay Co. may be valuable as a source

52 H. B. 00. LAND REGISTER.

of evidence relating to the transactions in respect of lands
in the Bed Biver settlement, but it cannot be relied on as
giving a claim of title to lands, much less as declaring who
at any given time was the true owner of any lands. If it
were assumed to have such force and effect, no man's lands
in the Bed Biver settlement would be safe. As to tracing
ownership in connection with the history of actual posses-
sion it may be, and sometimes is of service, but the entries
were so irregularly made, and with such brevity, and in
such general terms, and so frequently omitted to be made
altogether, that it is not over-stating the fact when I say
that, as containing a connected history of the changes and
transfer of land, it is wholly unreliable, and to give it any
such effect or construction would work disastrous conse-
quences to land owners in the Bed Biver Settlement, and
would prove a ' snare and a delusion.' Fortunately the
Legislature has never given to that Begister the effect and
potency contended for in the foregoing objection, and in my
judgment it would be a great mistake for it ever to do so,
and until the Legislature imposes upon me that necessity,
I shall not put such a construction upon the Land Begister
of the Hudson Bay Co."

" In the present case the Begister shews P. V., a witness
in this investigation, and brother to A. V., to be the first or
original owner, a grantee of the H. B. Co., of lot 588, the
same as lot 117 (St. Norbert), and A. V. as bis assignee or
grantee (see Ex. D.) Whether or not there were inter-
mediate owners between the brothers, I know not, the form
of expression in the evidence of P. V. is open to suspicion
that there were intermediate owners ; however, as that fact
was and is immaterial in the present case, it is of no con-
sequence, as both parties claim under A. V., who, for the
purposes of this investigation, must be considered as having
been the true owner, at least at the time he made the siile
and transfer to B. L., and gave him possession in 1868,

H. B. CO. LAND BEOISTEB. 68

whoever may have been the prior owners, and the evidence
of P. v., not the Register, is conclusive of this fact."

" The misconception of the effect of entries in the Eegister
as to priority of estate of assignees, and grantees and
bargainees of lands, was probably the ground of G. taking
the conveyance he did of the one chain in question, for he
must be assumed to have had notice of the claim of B. L.,
who was at the time and long prior thereto in actual pos-
session and occupancy — ^living and dwelling with his family
in the bouse and on the premises, which was an ever-speak-
ing notice to all the world, and prima facie declaration that
he was the owner of the lands, but who, notwithstanding
ibis notice given by actual possession, took a conveyance
from a person out of possession, relying no doubt upon the
effect of the register of the H. B. Co. as securing him in the
transaction. It has no such effect. Mr. G. must be taken
to have purchased with notice of the estate and interest of
B. L., who was in actual possession of the lands at the time
of purchase, and such possession without actual notice, or
even actual notice of possession, is in law held to be good
and effectual notice {Holmes dt Benny, 8 DeG. M. & G. 580)*
The same result would be reached were we to apply the
well known maxim Qui prior est tempore, potior est jure, '^

" B. L.'s purchase and transfer, which, though by verbal
contract was made effectual by his executing the same and
going into actual possession and occupancy, was, in point of
lime, prior to that of G. ; and, assuming that G. bought in
good faith and without actual notice, constructive notice he
certainly bad, which in such a case as this is as effective ,
as actual notice, and that the equities of the parties were
equal, still the title of B. L. must prevail over that of G.,
for it is prior in point of time."

As to the manner in which these entries were usually
made and the object for which the Begister was designed
flee McKenny v. Spence, Man. Bep. Temp. Wood, 11.

54 UND TITLES OFFICES,

BnlldlDsi. 18. Id moH of said Diatricta, at Ibe plaoa appointed «a providad in
wction toar hereof, Iho LieateDant-Govemor-in-Coiinail may proeiira a
8it« and oaase a anitabla flre-proof bnilding to b« ereotod tbereoa or may
parchase or rent a building to be aaed aa the Land Titles OfBce, and
properly fnmiah the same. The money neceesary to be expended in tb«
purchase of sites andithe erection and furnishing of soch baildings shall
be provided oat of the Consolidated Revenae Fnnd, bnt the same ahall
be repaid by the manicipalities incladed in taoh dietriots reapectively to
the Government, in ten equal annaal instalments. Interest at the rate
of five per centnm per annnm on all unpaid prinoipal, to be oalcnlated
from a date after the completion of such bnilding to be fixed by the
Lieutenant- Oovernor- in -Coanoil, shall be paid with each instalment.
The proportion to be paid b; each of saofa mDnieipalitiea shall be deter-
mined by the Municipal Commissioner in the tame maoner that other
taxes levied by the said CommisBioner are determined. The Municipal
CommisBioner shall levy upon mauicipalities a rate anffioient to meet tbe
payment* required by this section, or to meet the rent if a buildiufi a

y^^^ 14- On and after the date namrd in t^e Order- in -Conncil provided

Btgittian for in section four hereof, all Begistrars appointed under tbe proTiaions
Jjt**** ^ o' "'d Chapter sixty, or aotinit under the provisions of said chapter for
counties or other divisions, indnded in any such Land Titles District to
constituted, and all depaties thereof, shall cease to act as such and there-
after shall be relieved from all their duties under said Act, and sucb
office shall from and after tbe date so named be abolished, provided that
nothing in this Act contained shall have the effect of relieving any snob
registrar or his sureties from liability for acta done up to such date.

The offices bo far abolished are the Begistry Office for the
County of Brandon, from 26th July, 1889, the ReRistry
Office for the County of Portage La Prairie, from 1st Aag-
,st, 1889, and the Westhourue Registry office, from 15th
inguBt, 1889 ; Beautiful Plains County Registry Office,
rom 9th October ; Minnedosa and Riding Mountain United
!ounty office, from 23rd October, the Marquette, Selkirk,
Vinnipeg end Norfolk offices from 30th October, 1889, and
he RuBsell office on 6tb November, 1889. Tbe Registry
)fficeB for the County of Dufferin and Bock Lake vill ceaae
exist on 14th January 1890.

19. On and after the said date so named, all registrations under tbe
IB of said Chapter sixty shall bemadewitb theDiatrict-Hegistrar

ORGANIZATION. 56

at the said Lands Titles Office for each district, and the said District-
Registrar shall have all the powers and duties of a Registrar as provided
by said Chapter sixty and amendments. A Deputy of the District- gePjaty
Registrar may be appointed by the Lientenant-Governor-in-Council to^^^
act as Depaty-Registrar nnder said chapter sixty without the qualifica-
tions provided by this Act for a District- Registrar.

See sec. 7, ante.

16* Ail such books, records, documents, plans and other papers and Contlnasr
all registrations made in the said registry office prior to such date so books, re-
named, shall continue to have the same effect on and after the said date ^^^» *^'
so named, as if this Act had not been passed.

The intention and meaning of this section appears to be
that no restriction should be placed upon the effect of regis-
trations and rights thereby acquired under the law as it
existed at the time the instruments were placed on record.
The effect of general liens or charges secured under former
registrations in the county offices has not been enlarged or
augmented through the transference of several divisions or
parts of divisions heretofore constituted under the Lands
Registration Act of Manitoba, to the same Land Titles
District under the new system. The effect of registration
under the old system does not extend to lands subject
to the provisions of the former Eeal Property Acts, not-
withstanding the repeal of the restraining clauses without
consolidation and re-enactment in the present statute (vide
46 and 47 Vic. cap- 48, sec. 8. Note the word ** unrepealed "
in the last line but one of this section, is evidently intended
to be '* repealed*'). Section 152 post provides for the
validity of acts done and the enforcement of rights acquired
and liabilities incurred under the repealed statutes. Eights
once acquired have not been taken away by this repeal,
neither have they been thereby augmented {Hitchcock v.
Way, 6 A. and E. 947; Butcher v. Henderson, L. B. 8
Q. B. 885 ; RestaU v. London, etc., L. E. 8 Ex. 141).

For similar reasons liens or charges could not affect such
lands, which were only bound by registration as provided
by the statutes which bnve been repealed.

5Q REaiSTRATION.

QtLoere the effect of registration of, say, a certificate of
judgment, during the investigation under an application.

^^ct ly. Except as herein otherwise provided the said District-Begistran

to act as shall oontinne to act as ref^strars under said chapter sixty and amend-
RegiBtrars. ments, and shall carry out the provisions of said chapter sixty and
amendments.

Under this section the District Registrar has succeeded
to the office of the '* Registrar,'* who merely ceased to act
under sec. 14 ante, but whose duties are still to be performed
under the dual system of registration prevailing in the Land
Titles Office for the district in which the abolished re^tra-
tion division may have been situated.

Qiuiere whether he should use the official seals of the old
Registry offices, when authenticating official instruments
under the Lands Registration Act of Manitoba.

Offioeni IS* The Registrar- (jeneral and all other officers appointed under the

A., 1885. ' provisions of the Real Property Act of 1SS5 and amendments, shall
continue to act under said Act until a date to be named m an order-in-
council, including the City of Winnipeg, passed under section four hereof,
but on and after such date so named such Registrar-General and other
officers so appointed shall cease all their functions and such offices shall,
on and after said date so named be abolished.

See note to sec. 2.

The Registrar General and other officers as well as the
Land Titles Office, under the Act of 1885 were abolished on
SOth October, 1889. See note to sec. 4.

Com- 19* The said District-Registrars, Clerks and officers shall commence

ment^f their respective duties on the day named in the Orders-in-Council respeo-
^w eys- tively, passed under the provisions of section four hereof.

See note to sec. 4.

Dis. B.,eto., 90* No District- Registrar, Examiner of Titles, Officer or Clerk in any
as sffent ^ office under this Act shall, directly or indirectly, act as the agent of any
oonvey- corporation, society, company, person or persons investing money, and
attorney, taking securities on real estate within his registration division ; nor shall
*^* snoh District-Registrar, Examiner of Titles, Officer or Clerk, advise, for

TARIFF OF FEES. 67

any fee or reward, or otherwise, upon titles to land, or practice as a
oonveyancer, nor shall he carry on or transact within the office, any
hnsiness or occupation whatever other than his duties under this Act ;
nor shall such District-Registrar. Examiner of Titles, Officer or Clerk.
practice as a barrister, attorney or solicitor, upon pain of dismissal from
office for any offence against this clause.

9t. AJl fees for services under this A.ct or in connection with it other Fees,
than for such services as relate solely to the old system of registration
and in no way relate to the new system, or the bringing of land under
the new system, shall be settled by tariff made by the Lieutenant-
Govemor-in-Council, and no service shall be rendered by an official of a
Land Titles Office until all such fees fixed by tariff for such service and
fixed by this Act have been paid to the District-Registrar.

The following is the tariff of fees at present in force in the
Land Titles Offices under the new system :

TARIFF OF FEES.

Manitoba Land Titles Offices.

For each application when the applicant is the original grantee,
and no transaction affecting the land, excepting mortgages
or leases, has been registered $1 00

The like when the title is of any other description, and the value

exceeds 93,000 15 00

The like when the value exceeds 92,000, and does not exceed 93,000 10 00
The like when the value exceeds 91,500, and does not exceed 92,000 7 00
The like when the value exceeds 91,000, and does not exceed 91,500 5 00
The like when the value exceeds 9500, and does not exceed 91,000. . 3 00

The like when the value does not exceed 9^)00 2 00

For every Certificate of Title issued under an application to bring
lands under the Act, which application shall only comprise
lands in the same registration division, and shall not, except
as hereinafter provided, comprise more than one Grown
Section or other sub-division, contiguous country lands not
exceeding altogether 2,000 acres — a road not to be considered
a break in the contiguity— and any number of lots under the
same plan of sub-division may be Included in the same appli-
cation, but in no case shall a Certificate of Title issue for more
than fifty lots, according to any plan of subdivision. If the
value of the land comprised therein does not exceed 9500. ... 1 00

The like if the valae of the land exceeds 9500, but does not exceed

•1,000 1 60

58 TARIFF OF FEES.

The like if the yalne of the land exceeds 91,000, bat does not ezoeed

•2,000 f2 0(^

The like if the value of the land««Kceeds $2,000, hut does not exceed

•3,000 3 OO

The like if the value of the land exceeds 93,000 4 00*

For every Certificate of title not otherwise provided for 1 Sty

For registering a transfer or a discharge of mortgage, or charge,
wholly or partially, or a satisfaction of an annuity, or a sur-
render of a lease 1 00*

For registering a lease, mortgage or charge, or a transfer thereof 2 00-

When any instrument purports to deal with or affects land in more

than one grant or certificate, for each memorial after the first 50

For registering proprietor of any freehold estate or interest on a

transmission 4 00

For every caveat ; 2 00

For every power of attorney 2 00

For every entry in the register, for which no other fee is provided 50

For withdrawal of caveat 1 00

For entry of foreclosure 4 OO

For every search 25

For every general search 1 OO

For every map deposited 1 OO

For depositing document declaratory of trusts 2 OO

For registering recovery of possession by legal proceedings, or

registering the lessor as surrenderee 2 OO

For vesting of lease in mortgagee on refusal of assignee to accept

the same 2 00

For entering notice of marriage or death 2 00

For entering notice of writ of ./i. /a., or any order or decree of Court
or of the Hegistrar-Greneral. or filing certificate of judgment,

mechanics' lien or lit pendent 1 00

For entering satisfaction of any such writ or other document .... 50

For order dispensing with production of any duplicate grant, certi-
ficate or instrument 1 00

For returning documents of title deposited in support of applica-
tion, on withdrawal of application, or rejection of title 1 00

For order for, and inspection of, any documents permanently

retained '. • 1 W>

TARIFF OF FEES. 69

For copy of, or extract from, any docnment deposited in support
of an application to bring land under the Act and retained, or
from any caveat (per folio of 100 words) $ 10

For any certified copy — First folio of 100 words 1 00

For every folio or part of folio after the first 10

For every map thereon 50

For taking affidavit or statutory declaration 20

For a special commission 8 00

For every summons 50

For every examination thereon per hour 2 00

For entry of an executor, or administrator, or the curator, or the

assignee of an insolvent, as a transferee or proprietor 2 00

For entry of husband as joint proprietor 2 00

For entry of survivors or other persons as proprietors, in cases of

joint proprietorship 2 00

For certificate to Court 2 00

For special case — first folio 1 00

Each additional folio 10

For examination of instruments produced in support of an appli-
cation to bring lands under the Act — for each instrument in

excess of ten 20

For each order for substitutional service 1 00

For each direction or request to issue a certificate to any person

other than the applicant 1 00

For each withdrawal of lands applied to be brought under the Act 1 00

For each certificate of withdrawal or rejection of application .... 1 00

For each entry of discharge or lapse of caveat 05

For each appointment of guardian ad litem 1 00

For each filing of petition on caveat 1 00

For each filing of evidence of proceedings on caveat 1 00

For each application for foreclosure —

If land valued not exceeding $500 1 00

If land valued exceed 9500, but not $1,000 3 00

If land valued exceed $1,000, but not 92,000 4 00

If land valued exceed 92,000, but not 83,000 5 00

If land valued exceed $3,000, but not $5,000 8 00

If land valued exceed $5,000 12 00

For each filing of proceeding, on power of sale 2 00

TARIFF OF FEES.

A CONBOLIDATED TaBLK OF FbB8 ON APPLICATIONS FOB BboISTBATION OF
TiTLB ACOORDINO TO THB MANITOBA TaBIFF.

Fbbs. Fbbb.

Valub. Original Not Orig.

Grantee. Grantee.

Vaz<ub.

$100

aoo

.... $2.10

2.20

... ^3.25
3.50

300

400

.... 2.30

.... 2.40

3.75
4.00

500

600

.... 2.60

3.10

4.25
6.00

700

3.20

6SKJ

800

3.30

6.60

900

3.40

6.75

1000

.... 3.60

7,00

1100

4.10

9.75

laoo

A on

1000

X300

.... 4.30

10.25

14O0

10.50

1500

.... 4.50

... 10.75

160O.
1700..
1800.
1900

aooo.
a 100.

Original Not Orig.

Grantee. Grantee.

.. $4.60 $13.00

asoo

a400

asoo

aeoo

a700 6.70...

asoo 6.^0...

aooo 6.90...

Oneachaddtnl. 9100 add Ifle.

4.70.
4.80.
4.90.
6.00.
6.10.
6.20.
6.30.
40.
6.50.
6.G0.

13.25
1350
13.75
14.00
1&25
l&SO
18.75
19.00
19.25
19.50
19.75
20.00
20.^
lac

The total fees on each Mortgage are $2, and on each transfer, $2.50.
Several parcels may be included in one transfer, bat if more than one
new certificate of title is necessary, 91.50 is charged for each extra
certificate.

Extra memorials at 50c. each are charged where extra entries are
required to be made in the register upon the registration of mortgagees
or transfers affecting lands in separate certificates.

The EegistratioD Fees under the old system, where not
specially provided for in the Statutes, are as follows :

Tariff of Fees Exigible under the Lands Registration Act of

Manitoba.

For registering every instrument not otherwise specially provided
for, not exceeding 800 words, and not including more than
10 lots or distinct parcels of land $2 00

For every additional 100 words or fractional part thereof 15

For each additional lot over 10 and up to 100 05

For each lot over 100 02

When the lands in any instrument are situated in different munici-
palities in the same County, the entry of such instrument for each
distinct municipality to be considered a distinct resignation.

The registration of deeds of right of way, etc., to railway companies
is usually provided for in the Company's charter, and is generally fixed
at one dollar, including certificates.

For each certificate of discharge or partial discharge of mortgage,
and every other certificate, including lis penden** when tliere
are only 10 lots or distinct parcels of land mentioned or des-
cribed, not exceeding 850 words 91 00

TARIFF OF FEES. 61

For each additional 100 words or fractional parte thereof 90 15

For each additional lot 02

For registration of any original plan where ^he number of lots

does not exceed 100 10 00

For each additional lot 02

For registration of any amended plan when the number of lots

does not esceed 50 5 00

For each additional lot 02

For registration of any subdivision of lot or lots on any original
plan or amendment thereof, where the number of lots does

not exceed 10 2 00

For each additional lot 05

For registration of each certified copy of resolution for issuing

debentures 1 00

For registration of each certified copy of by-law 2 00

For registration of return as in Schedule A. of Act respecting

IJ registration of debentures 50

For registration of name of holder or transferee of debentures

not exceeding 5 50

Over 5 and not exceeding 15 75

Over 15 and not exceeding 30 1 00

Upwards of 30 1 50

For registration of certificate of naturalization 50

For registration of certificate of Judgment from County Court . . 50

For filing grants from the Crown 50

For filing each meohanic*s lien 50

For filing each discharge of lien 50

For filing and recording every certificate of partnership 1 OO

Seabchbs and Abstracts.

For every search on any lot of land as patented, or as afterwards

subdivided on a registered plan, not exceeding four references 2&

For every additional four references 25

Not to exceed on any particular lot and for a general search . . 2 OO
For exhibiting in the office each original registered instrument,

including search for same 20

For search for every certificate of naturalization snd certified copy

thereof 25

For search of copy of by-law or resolution filed under Eegistra-

tion of Debentures Act 50

For every abstract of title — for the first 100 words 50

For every 100 words additional, or fraction thereof 25

And see proviso in Act as to any section or portion of a section owned
by and registered in the name of one and the same person.

62 TARIFF OF FEES.

Certificates and Copies.

For each oertifioate furnished by the Registrar, except those

under sab-secs. 1 and S of sec. 46 of Act 90 25

For copies of instruments when required— for each 100 words or

fraction thereof 15

For extracts from books of reference filed by Railway Companies,

for every 100 words 10

General.

For drawing each affidavit and swearing deponent thereto 50

For swearing only 25

D. B. to 99, The District- Registrar shall keep a correct account of all sums

coant of o^ money received by him under this Act, and under chapter sixty of the
fees. Consolidated Statutes of Manitoba and amendments, and shall pay the

same to the Provincial Treasurer at such times and in such manner as
Retainer of the Provincial Treasurer may direct. No official in a Land Titles Office
alty for. shall be entitled to retain for his use any fees of any kind whatsoever

received for work done or information furnished in connection with a

Land Titles Office. The penalty for any violation of this clause shall be

dismissal from office.

Ofncen not 98. A District-Registrar shall not, nor shall any person acting under
lana Jlde his authority, under this Act, or under any order or general rule made in
^minion. P^' Buance of this Act, nor shall any surety of such officer, be liable to
any action or proceeding for or in respect of any act bona fide done or
omitted to be done in the exercise or supposed exercise of the powers
given by this Act or any order, rule or regulation, made in parsaance of
this Act.

See post Sch. S. sec. 26 and sees. 118-180.

Office 94. Every ** Land Titles Office '* shall be kept open on all days, except

legal holidays, from the hour of ten o'clock in the forenoon until three
o'clock in the afternoon excepting Saturdajrs until one o'clock in the
afternoon. The time to be guided by shall be standard time. Except
within the said hours no registration shall be effected.

The legal holidays in Manitoba are Sundays, New Year's
Day, Epiphany, Good Friday, Easter Monday, Ascension
Day, All Saint's Day, the Immacalate Conception, and
Christmas Day ; the Birthday of the reigning Sovereign and
any day appointed by proclamation as a general Fast or
Thanksgiving. C. S. M. cap. 1, sec. 7.

BULE8 OF FBAOnCE. 68

The meaning of the term " standard time " as used here
^onld be perhaps interpreted as the correct mean solar
time of the locality where the office is situated ; the offices
throughout the Province open and close by what is known
in railroad circles as " central standard time."

9cl« The schednles to this Act and all additions and amendments SoheduleB
thereto hereafter made by the Lieutenant-Govemor-in-Council, shall be ^^^Aot.
deemed to be embodied in and to form a part of this Act.

The Schedules are printed following the sections in
which they are referred to. See sec. 3 (26) ante.

96* The Lieatenant-Govemor-in-Council shall have power from time L.-O.-in-C.
to time to alter any of the forms in the schedules to this Act, to provide Mhedules
any additional forms that may be deemed necessary, and to alter the ^^^['^^^
rales and regulations set forth in schedales B and S to this Act, and to
make sach roles and regalations as may be deemed necessary or expedient
for giving effect to this Act in cases unprovided for, according to its true
intent and purpose.

See sees. 23 and 25 ante. Schedule B. follows sec. ISO
po8t.

SCHKDULS S.

Rules or Practice fob Land Titles Orncss.

1. So far as applicable the provisiocs of the seventh section of thelnterpre-
Interpretation Act of Manitoba, and of the third- section of this Act, Qf m^°
and of the various sub-sections of the said sections shaU be applied to toba.
the oonstruction of these rules.

See notes to sec. 8 ante.

2. Every application for first registration under the new system shall Applioa-
be in ¥rriting, in the prescribed fonn, and the statements made in the iifwriting.
application shall be verified by the affidavit of the applicant or the person

acting in his name or on his behalf ; but such affidavit may, in the dis-
cretion of the District- Registrar, be dispensed with, or may be made by
some other person instead of the applicant, or partly by one person and
partly by another, at the discretion of the District-Registrar, and in
such case the affidavit or affirmation shall be modified accordingly.

See sees. 40, 47 and 57 and notes thereto post.

3. The appUcant shall furnish the following evidence : Evidence

(1) All deeds in his possession affecting the land in question. ^hedby

applicant.

64 RULES OF PBAOTICB.

(2) Proof of facts necessary or required by the District-Registrar to
make out a good safe holding title.

See sees. 44 and 47, and notes thereto, post.

Where 4. Where in the application for first registration there is a request or

appUcation direction that the certificate of title should issue in the name of some
^tolstod P^i^Bon other than the applicant, the application shall be duly attested
and verified by the subscribing witness.

See sec. 45 post.

AFrmAviT BY Witness under Rule of Pbactice No. 4 and Sec. 45,
Cebtificate ok Title is to issue to a Pebson other than Applicant.

Manitoba, \

County op

To Wrr :,

I.
of the of

in the County of

make oath and say :

1. That I was personally present, and did see the within Application

duly signed, sealed and executed by

the part thereto.

2. That the said Application was executed at

3. That I know the said part

4. That I am a subscribing witness to the Application.

SwoBN before me at
in the County of
this day of

in the year of our Lord 18

A Commissioner for taking Affidavits in B J2., etc.

What ap- 5. Every application should state the names, residence and the pro-

Ij^^'^^^'^^fession, trade or occupation of the applicant, the estate claimed and

description of the lands ; it should also state the value of the lands, all

documents or evidence of title in the possession or control of the applicant

and all mortgages or encumbrances affecting the lands, the names and

addition of all occupants of the land and of the lands contiguous thereto^

Howto be and, except in the case provided for by statute, should be signed by the

before applicant or his duly constituted attorney, before the District-Begistiar,

whom. ^ Notary Public, a Justice of the Peace, or a Commissioner for receiving

affidavits in B.R., if executed within Manitoba, or if executed abroad,

before a Judge of a Court of Record, a Notary Public under his official

seal, or a Commissioner for receiving affidavits to be used in Manitoba.

A Sohednle should be annexed containing a list of documents referred

RULES OF PRACTICE. 65

to, each inBtnmient being numbered and ite nature, date and parties
thereto stated.

See sees. 40 and 41 and 67 post.

6. Applications shall not, except as hereinafter provided, comprise '^'hat land
more than one Grown section or lots comprised in more than one plan, may con-
Contignons country lands, not exceeding altogether 2,000 acres, a road ^^^^-

not to be considered a break in the contiguity, and any number of lots
under the same plan of sub-division may be included in the same
application, but in no case shall a certificate of title issue for more than
fifty lots.

See Land Titles Tariff, 8th item, sec. 21, supra.

7. Where. lands applied to be brought under the operation of the new Proof re-

Q iiirod
system are claimed by the applicant as or through the heir or devisee of where ap-

a person deceased, the applicant shall produce letters of administration ]^^\^°^*

or copy of probate with his evidence of title. tlevieee. -

8. The "Caveat Book** shall be hereafter known as the " Caveat " Caveat
Book and General Begister,'* and in it shall be entered certificates of ^ '
judgment and attachments which may be filed in the Land Titles Office, ^

as well as caveats and mechanics* liens.

See sees. 68 («), 180 and 181.

9. The District- Registrar shall keep a book or books, to be called *' The ' The Uei;-
Begister,*' and shall bind up therein duplicates of all certificates of

titles to be issued as hereinafter provided for ; and each certificate of
title shall constitute a separate folium of such book, and the District-
Begistrar shall record therein the particulars of all instruments, dealings
and other matters by this Act required to be registered or entered
in the Register and Affecting the land included under each certificate of
titie.

Compare sees. 44, 68, 60, 68 (7), 74 and 180 (7) post, and
Bales 10, 18, 14, 16 and 18 post.

10. The District-Begistrar shall also keep a book or books to be called " The Day
"The Day Book,*' in which shall be entered, by a short description,

every instrument which is registered with the day, hour and minute of
filing; and f^r the purpose of priority between mortgagees, tranferees
and others, the time of filing shall be taken as the time of registration.
The District-Registrar in entering memorials upon the certificates of
titles embodied in the Begister, and endorsing a memorial upon an

66 RULES OF PRACTICE.

inBtmment to be issned, shall take the time from the Day Book as the
time of registration.

See sees. 74, 76 and 78.

Plans, 11. The District-Registrar shall keep a plan book, and all reference to

plans shall be made by plan number and not by registration nnmber.

See Sees. 68 (8), 69 and 70.

Duplicate 12. At the time of the deposit of any plan of subdivision of lands as &
p an. ^y^ piQi^ g^ duplicate of such plan, signed and certified in the same
manner as the original is required to be signed and certified, shall be-
deposited therewith, and such duplicate plan so deposited shall be kepi
for use of the public making searches and for reference in the Ijand
Titles Office.

See Schedule T, sec. 69.

Memorial 18. The District-Registrar shall endorse upon the certificate of title &
tobe^^ memorial of every mortgage, encumbrance, lease, rent charge, term of
^^rt^^te y^^^'^*^^ other dealing affecting the land, and snch memorial shall be

endorsed upon the duplicate in the possession of the owner, if any, a»

well as upon the duplicate which is in the Register.

See Sec. 76.

What 14. Every memorial entered in the Register shall state the nature of

m Register the instrument to which it relates, the day, hour and minute of the pre>
toBtate. sentation, of such instrument for registration, and the names of the

parties thereto, and shall refer by number or symbol to such instro-

ment. and shall be signed by the District-Registrar.

See Sec. 76.

Owner to 16. Every registered owner of any land or interest therein and every
dren. applicant to bring land under the new system, shall deliver to the

District-Registrar a memorandum in writing of some post-office addrees
(within the Province of Manitoba), to which it shall be sufficient to mail
all notices that, under this Act, may be required to be sent to such
registered proprietor, and every registered proprietor or transferee of any
registered interest shall, if required by the District-Registrar so to do,
before the delivery of any certificate of title, sign a receipt therefor in hi»
own hand-writing^ or otherwise furnish the District-Registrar with his
signature, so as to prevent fraud as far as possible.

See Rule 18 and sees. 40, 74, 98, 108, 106, 180 (1) (4)^
and 148 post.

RX7LE8 OF PRACTICE. 67

16. Every registration of ownership shall he made on a separate Mode of re-
foliom of the Register, and upon any transfer of ownership the register ^ ^^'
of the transferror's title shall he oanoelled, and the title of the transferee

shall thereupon he entered upon a new folium; and the District-
Registrar shall note upon the Register of the title of the transferror the
numher of the register of the transferee's title, and upon that of the
transferee the numher of register of the transferror, so that reference can
he readily made from one to the other as occasion may require.

See Sees. 74-76, 113, 117 and 123.

17. No instrument of a nature to require cancellation of a certificate Instm-

of title or an endorsement to he made thereon shall he received and ^J^n^

registered in the Land Titles Office, nor any entry thereof made in the ^ncelia-

hooks of said office, until the duplicate certificate of title to the lands certificate

thereby affected is produced for endorsement or cancellation, as the case ^^^Btezed

may he ; unless the production thereof be dispensed with by the District- ^^^}^ certi-

Registrar under the provisions of the Act. duoed or

disDciiBed

See Sees. 73-107, 113-117 and 123, Rules 6, 7 and 8, Sch. with:
R. sec. 130.

18. All transfers, mortgages and instruments to be registered in the Instra-

Land Titles Office should show the names, residence and additions of ^"^

the parties thereto. names,

'^ residences

See Rule 15 ante. UoS^^"

19. Transfer and mortgage shall be accompanied by a certificate from Tax certifl-
the proper officers of the municipality wherein the property is situate ^ ^'
that the land has not been sold for taxes, and is not then advertised for

sale on account of arrears of taxes.

The word ** every *' has evidently been accidentally
omitted at the beginning of this rule.

See Man. Municipal Act 1886, sec. 639, as amended by
50 Vic. cap. 10, sec. 45.

20. Every District-Registrar shall, when required, and upon the
payment of the legal fees, furnish, attested by the seal of his office,
exemplifications and certified copies of any | instruments affecting land
which may be deposited, filed, kept or registered in his office, and such
exemplification or certified copy shall, provided it is such an instrument
as may affect land in his district, be received, i^gistered or filed, as the
case may require, by any other District -Registrar in the same manner

68 BULES OF PBACTICE.

and with the same effect as if the original was prodnced, without proof
of the aignatare of snch Diatrict-Begistrar.

See sec. 147 post.

single oer- 21. Upon the application of any owner or of any person entitled to
several eer- become an owner of lands held ander separate certificates of title, or nnder
tifloates QQQ certificate of title, and the delivering ap of such certificate or oerti-
ficates of title, it shall be lawful for the District-Registrar to issue to such
proprietor a single certificate of title of the whole of such lands or several
certificates each containing a portion of such land, or a certificate of a
portion of the land included in any such certificate of title, in accordance
with such application and as far as the same may be done consistently
with any regulation for the time being in force respecting the parcels of
land that may be included in one certificate of title ; and upon issuing
any such certificate of title, the District-Registrar shall enter on the new
certificate of title all the memorials to which the piece of land is at the
time subject, and shall cancel, either wholly or partially, pursuant to such
application, the previous certificate of title of such land so delivered up,
and shall endorse thereupon a memorandum setting forth the occasion of
such cancellation and referring to the certificate of title so issued.

Certifloate 22. The District -Registrar, upon cancelling any certificate of title,
foree^^ either wholly or partially, pursuant to any transfer, shall make out to
the transferee a certificate of title to the land mentioned in such memo-
randum of transfer, and every such certificate of title shall refer, if
practicable, to the instrument of transfer, and the District-Registrar
shall retain every memorandum of transfer, and cancelled certificate
of title, and in the case of a partially cancelled certificate of title shall
return the duplicate to the grantor after the memorandum partially can-
celling the same has been entered thereupon, or may, whenever required
thereto by the owner of an unsold portion of land included in any such
partially cancelled certificate of title, or where such a course may appear
more expedient, retain such partially cancelled certificate and make out
to such owner a certificate of title for such portion or any part thereof,
of which he remains the owner.

Time. 28. In the computation of time, unless otherwise specially mentioned,

the same shall be reckoned exclusively of the day from which the
computation is made, but inclusively of the day on which the Act or
proceeding under these rules or under any notice given under the pro-
visions of the ** Real Property Act of 1889,*' is to be done or taken.

Meaning of (a) Where notice of service is required to be made, a certain number

" at least." qj days before the day on which something is to be done, whether the

words " at least '* are used or not, the day of service or of giving notice

RULES OF PRACTICE, 69

•hall be oompated as one of saoh days, but the day on which such thing
is to be done shall be excluded from the computation.

24. In all matters and proceedings in a Land Titles OfiQce, in so far as Equitable
the same can consistently be done, equitable principles and rules, as £) apply,
established by courts of equity, may be invoked, acted upon and applied.

25. A search for caveats, executions, and judgments shall be considered Searohes.
and charged as one search ; but searches in the archives for other docu-
ments shall be considered and charged as a separate search for every such
document.

Memo, search fees are not now charged when registra-
tions are made.

26. On the filing of a Prsecipe and evidence to the satisfaction of tlie Removal of
District-Registrar that any certificate of judgment has not been renewed tiflcate of '
or re-registered in the manner provided by law, he may enter a memorial judgment,
releasing the lands of the judgment debtor therefrom, and thereafter such
judgment shall be deemed to have ceased to be binding or a lien upon

such lands.

27. On proof to the satisfaction of the District-Registrar that proceed- Removal of
ings to enforce a mechanic's lien have not been instituted within the time mechanic's
limited by the Acts respecting mechanic's liens, he may enter a memorial ^^®°*
releasing the lands affected thereby, and thereafter such lien shall be
deemed to have ceased to be binding or a charge upon said lands.

28. When a certificate of title shall have been endorsed with memorials ^^^7^^ °f

illesiDle
to such an extent as to interfere with its legibility, the District-Registrar certificate.

may require it to be delivered up |or cancellation as by request and issue

a new certificate of title in lieu thereof, having entered thereon all the

memorials to which the land affected thereby are then subject, and enter

the cancellation of the former certificate by memorial setting forth the

occasion of its cancellation and referring to the new certificate of title

so issued.

29. No certificate of title shall be signed during the hours the Land 5?«? ^'

tiflcates to
Titles Office is open for registration, and a final search shall be made be signed.

before signing such certificate and after the closing of the office for regis-
tration purposes.

See sees. 60 and Gl post.

70 LAND LAW AMENDED.

Amendment of Law BssPECTiNa Lands.

Desoent of 9Y* Land in the Provinoe shall go to the personal representative of
deceased owners thereof in the same manner as personal estate goes.

See sees. 29, 88 and 84 po8t.

When the first Real Property Act was passed in 1885,
the 2l8t section provided that : " After the commence-
ment of this Act {i.e. 1st July, 1885) all lands in the Pro-
vince of Manitoba which, hy the common law, are regarded
as real estate, shall he held to he chattels real, and shall go
to the executor or administrator of any person or persons
dying, seized or possessed thereof, as other personal estate
now passes to the personal representatives.'*

The meaning of this section was very difiBcult to arrive
at, and it seemed doubtful to many whether real property
had been divested of its character as "realty," and converted
into '' chattels real ; " here again appeared another incon-
gruity, for the definition given in the interpretation clauses
to the word ** lands " could hardly be reconciled in every
case with the apparent intention of this, section, and the
peculiar distinction made as to those rights and interests
in land which, by the common law, were regarded as real
estate. In re Irish, 2 M. L. B 361, it was held that lands
became chattels real for the purpose of devolution, but were
not subject to seizure under Ji. fa. de bonis.

Again, it was asKed did this change affect the '* seizin '*
of lands? did it affect those facilities furniRhed for the
conveyance of lands under the operation of the Statute of
Uses ? And what about the Statute of Mortmain ?

These questions may possibly require to be decided in
cases which may have been affected by the peculiar pro-
visions of the Act which remained in force from let July,
1886, to 28th May, 1886, when the words '' shall be held to
be chattels real" were struck out. (See 49 Vic. c. 28 sec. 5).

LAND LAW AMENDED. 71

With this alteration the old section remained in force, and
where a mortgagor died intestate and his administrators
released the equity of redemption to the mortgagee before
the lands had been registered under the Act, it was held
{Taylor, G.J., Re Lewis, 5 Man. L. B. 44) that the admin-
istrator had no power to release the equity of redemption,
because the property had not theretofore been brought
under the provisions of the Act. At the time of the first
amendment the word ** other " was left standing, and thus
added further difficulty in arriving at a conclusion as to
what the section intended. Section 28 of the Act of 1886,
which was amended by 61 Vic. cap. 21, sec. 1, exempted
certain lands from the operation of the statute, while it
forbid dealings with other lands except under its provisions. •
The lands affected in the case lastly cited were of the
exempted class, and this fact may have influenced the
decision.

In an unreported case, Fleming v. Howard (1888), Mr.
Justice Eillam held that an administrator did not become
seized of an equity of redemption of a deceased mortgagor,
as the statute only affected property known to the common
law as real estate.

By 61 Vic. cap. 22, sec. 8, which came into force on 18th
May, 1888, and was in turn amended by 62 Vic. c. 4, sees.
1-4, the clause was altered to its present shape, and applies
to all lands in Manitoba.

98. Hereafter no words of limitation shaU be neoessary in any con- Effeot of
▼eywioe of any land in order to convey aU or any title therein, but every ^STword.
deed or insimment conveying land shaU operate as an absolate convey- of Umita-
ance of aU saoh right and title as the grantor has therein at the time of neoessary.
its exeoation, unless a contrary intention be expressed in snch convey-
ance; bat nothing herein contained shall preclade any conveyance from
operating by way of estoppel; and hereafter the introduction of any
words of limitation into any conveyance or devise of any land shall have
the like force and meaning as the same words of limitation would have if
used by way of limitation of any personal estate, and no other.

LAND LAW AMENDED.

Devisees
to take
from per-
sonal
represen-
tative.

Tbe Victorian Land Transfer Statute, (sec. 66) requires
words of inheritance or succession to be implied.

See sees. 88, 84 and 144 post.

This section applies to all lands in the Province.

Compare sees. 22, 27 and 188 of the Act of 1885 ; and
sees. 6 and 12 of the Territorial Act, post ; also sec. 3 (22)
and (28) ante ; and 46 Vic. cap. 2. sec. 24.

There has been as yet no decision as to the interpretation
of this clause; it would seem to have reference solely to the
forms provided by the R. P. Act, notwithstanding the very
general wording of section 83 post, for it can hardly be said
that the Legislature intended a greater estate to be con-
veyed than was actually contemplated by the vendor. For
instance, were it intended to transfer a life estate in lands
under the operation of tbe B. P. Act, the intention must be
specially expressed in tbe instrument by which the transfer
is to be effected ; but if lands are subject to tbe '' old system '^
of registration it is submitted that, in the absence of words
of limitation, only a life estate would pass, for the omission
of the necessary words of limitation to effect a conveyance
in fee, would, of itself, be an expression of contrary inten.-
tion on the part of the grantor. /

d9« No devise shall be valid or effectual as against the personal
representative of the testator antil the land affected thereby is conveyed
to the devisee thereof by the personal representative of the devisor,
saving and excepting sach devises as are made by the testator to his
personal representative, either in his representative capacity or for his
own use.

See sec. 27 ante and sees. 83 and 84 post.

This section applies to all lands in Manitoba.

Vide sees. 118-117 as to the transmission of estates.
The personal representative must cause himself to be regis*
tered as owner before he can transfer the lands.

As to duty payable on transmission see sec. 140 post.

LAND LAW AMENDED. 78

The executor must prove tbe will in the Surrogate Court
before dealing with the property, Re Bannerman, 2 Man.
L. R. 877. Any personal representative must be regis-
tered as owner before dealing with the lands, Re Lewie^
Man. L. B. 48. In case of intestacy the administrator is
in the same position as the executor under a will.

By this alteration in the law relating to the devolution of
estates, it will in every case happen that between the time
of the death of the owner and the proving of the will or
grant of administration there will be a period during which
there would be no one seized of the lands, and no person
having authority to deal with them. The remedies of
creditors and adverse claimants would remain the same, and
could be exercised without interruption; (Vide sees. 68 (e),
128 and 129 'post)^ except in some cases where the action
might require to be brought against the personal represent-
ative.

Special provision is made (sec. 184 post) for compensa-
tion to persons deprived of lands registered under this Act.
But it may be doubted whether damages could be recovered
in case possession was lost by an adverse occupant enter-
ing during the vacant period and holding it until a statu-
tory title was acquired. See 46 & 47 Vic. cap. 26, sec. 5 (2).

SO. No widow, whose hasband died on or after the first day of July, Abolition
A.D. 1885, or hereafter dies shall be entitled to dower in the real property **' ^oTiet,
of her deceased husband, but shall have the same ri^ht in such real pro-
perty as if it were personal property.

Vide sees. 88 and 84 post.

This section applies to all lands in Manitoba.

Compare former Acts, 84 Yic. cap. % sec. 88, cap. 6,
sees. 2, 8 and 11 ; and cap. 8 ; 88 Vic. (1874) cap. 12, sec. 1 ;
and cap. 18 ; G. S. M. cap. 46 ; 48 Vic. cap. 28, sec. 24.

Prior to the 15th July, 1870, there do not appear to have
been any estates of inheritance in possession in Manitoba.

74 LAND LAW AMENDED.

At least in the writer's experience, which has been consider'
able, he has not seen or heard of any evidence to jastifythe
conclusion that prior to that date any of the Selkirk settlers
were seized of heritable estates in land, and in the absence of
such seisin no widow would be entitled to dower at common
law.

Up to the coming into force of cap. 12 of 88th Vic. on
the 22nd July, 1874, rights of dower were governed by the
laws of England as they existed at the time of the passing
of 1 & 2, Geo. IV. cap. 66. The Intestacy Act of 1871,
dealt only with such lands as the husband bad not disposed
of in his lifetime or by will, the eleventh section guarding
the widow's right of dower in other lands. By the enact-
ment of the Queen's Bench Act, cap. 12 of 38 Vic, the laws
relating to dower in England as amended by 8 & 4, WUl.
IV. c. 106, were to govern in determining matters relative to
property and civil rights in Manitoba.

At the time the Consolidated Statutes of Manitoba
came into force, sec. 11 of 84 Vic. cap. 6, became repealed.
It had really become effete so far as the widow was con-
cerned as after 22nd July, 1874, the dower of women
married since 1st January, 1884, was completely within the
power of their husbands in case they thought fit to dispose
of their lands absolutely during their lives or by will ; and
in case of intestacy, the widow being an heir would have
her right to dower satisfied by the inheritance of at least
an equal portion in fee simple.

Abolition 31* No husband, whose wife died on or after the first day of July,

by^viSsy ^'^' ^^^' ^^ ^^^^^^^^ ^^^ ^^^^^ ^ entitled to any estate by the curtesy
in the real estate of his deceased wife, but shall have the same right in
such real estate as a wife has in the personal estate of her deceased
husband.

Vide sees. 88 and 84 post.

This section applies to all lands in Manitoba.

LAND LAW AMENDED. 75

Compare former Acts. 84 Vic. cap. 6, sec. 11 ; 88 Vic.
(1875) cap. 25, sees. 4 and 18 ; G. S. M. cap. 65, sec. 16 ;
44 Vic. cap. 11, sec. 78.

39* A man may make a valid oonvey ance or transfer of his real estate Husband

- - may oon-
tohis wife, and a woman may make a valid conveyance or transfer of yey towife

her real estate to her hnsband, without in either case the intervention of ^^^

a tmstee.

These sections, 27 to 32, apply to all lands in Manitoba,
whether brought under the operation of the ** new system "
or still remaining subject to the " old system " of registration.

Vide sees. 88 and 84 post.

38. It is herehy declared that sections twenty-seven to thirty-two, Applica-
both inclosive, were intended to extend, and the provisions of said 27 to ae.
sections shall be held to have extended from and after the first day of
July, A.D. 1S85, and shall hereafter extend to all land in the Province
of Manitoba and to every estate and interest therein.

See sec. 84 itifra.

This section was added by 51 Vic. cap. 22 sec. 8 to remove
doubts as to the construction of Part III of the Real Pro-
perty Act of 1885, and a further amendment was made by
62 Vic. cap. 4, sec. 2. A similar clause was enacted appli-
cable to the Territorial Act, sees. 5-17, by 51 Vic. Can.
cap. 20, sec. 4.

The clauses of the Act of 1885 abolishing estates tail are
omitted in this Act.

In reLewiSf 5 M. L. B. 44, it was held by Taylor, G.J., that
under the 21st section of the Act of 1885, as amended by
49 Vic. cap. 28 sec. 5,the administrator of a mortgagor who
died in 1886, could not convey the mortgaged lands, as they
were not registered under the Act at the time of the death
of the mortgagor, and consequently did not vest in his
personal representative.

M* Notwithstanding anything contained in this Act all conveyances Exceptions
and leases made hy the heir or heirs of any deceased owner of lands, or tain trans-
of any estate or interest therein, and all proceedings taken hy way of ^tions.
foreclosure or sale or notice of sale under mortgage or by way of adminis-

76 LAND LAW AMENDED.

tration or partition in Equity by or against heirs of any snoh deceased
owner before the fourth day of September, A.D. 18S8, shall be good and
valid, and shall be as effectual to pass the title to such lands as if such
conveyances and releases had been executed or such proceedings taken by
or against the personal representatives of such deceased owner, and all
such proceedings so begun may be continued and carried to a conclusion
with the same effect in all respects as to title and otherwise as if they
had been taken by or against such personal representative.

This provision became necessary owing to want of uni-
formity in the interpretation of the clauses of Part III, sees.
21-27 of the Act of 1885, and the Legislature having declared
(sec. 88) the true intention to be different from the con-
struction placed by the Court, and by the bar, upon these
sections, taken with section 28 of the Act of 1885.

A volume might easily be written on sections 27-84,
composing, with a few changes. Part III of the Act of
1885. They have already caused much confusion and no
doubt will continue to lead to difficulties of construction, as
they form part of a statute to which they are by no means
essential, and give rise to complications where simpHcity
was aimed at. When such changes in the general laws
relating to real estate were deemed advisable, it would have
cleared the present Act respecting reifistration of the greatest
difficulty that has presented itself in its practical operation,
had they been made the subject of a separate Act.

Manner of Bbikgino Lands Undeb New System.

Begistra- 35* Until the abolition of the present Land Titles OMce at Winnipeg

maSe^ as provided by Section eighteen hereof, applications to bring lands

L. T. O., under the new system may be received by the Registrar-General afifect-

antil ^x>-' ing lands in any part of the Province (a), but after such abolition, no

vided.^'* I>iBtrict-Begi8trar shaU receive any application affecting any lands not

situate in the Land Titles District for which he acts, (b) In case before

such abolition any portion of the Province is constituted Land Titles

District under Section four hereof then all applications to bring lands

situate in such District under the- new system shall be made to the

District-Begistrar for such district, (e)

APPLICATIONS. 77

(a) By sec. 18 ante the Registrar General was directed to
act under the Real Property Act of 1885, and amendments,
until such abolition.

(b) Sec. 10 ante provides that instruments, etc., affecting
lands in thenew lands titlesdistricts, shall, when transmitted,
be kept and dealt with as if they bad been made or regis-
tered under this Act.

SI6* After such abolition as aforesaid aU lands nnder the new system Lands un-
or for which an application to bring under the new system has been^^ajQ^Q

made in the Land Titles Office at Winnipeg shall continae to be dealt ^°^P^,,

office until
with by the Land Titles Office of which the City of Winnipeg forms a new dis-
part, except where such lands are at any time included in any other Land ^°^q^'

Titles District. same ap-

pointed.

See notes to sec. 14 ante.

S7» The District-Begistrar shall not, except as hereinafter proyided, Lands for

^vhich
bring nnder the new system any lands for which the patent from the crown

Crown has not been granted. This section shall only apply to such lands P&^^ i^ot

as require to be originally granted by patent from the Crown.

See sees. 88 and 89. Compare re Iri»h, 2 M. L. B. 861,
as to lands unpatented.

This section would not apply to the regular sections
granted to the Hudson Bay Go. under sec. 22 of the Domin-
ion Lands Act, nor to the lands surrounding the Company's
Forts, nor to the lands of settlors reserved at the time
Bupert's Land was transferred to Canada. Nor would it
apply to the lands or interests mentioned in the first four
sub-sections of the 82nd section of 88 Vic. Can., cap. 8,
commonly called the ''Manitoba Act," and validated by
Imperial Act 84-85 Vic, cap. 28. Nor would this section
apply in cases where lands have vested in virtue of a statute,
as for instance some of the lands granted as bonus to the
Canadian Pacific Bailway.

78 AFPUCATIONa.

Swamp lands acquired by the Provincial Government
onder the terms of agreement with the Dominion, and
those held by the Province under any other title would
require to be granted by letters patent before any registra-
tion could be made.

CMtiflcato as* In the caae where the patent for a homestead baa been iasaed the
em^ioD Diatrict-Registrar may upon receiving a certificate from the proper

rbre officer of the Department of the Interior that all soma of money dae the
Dominion Ooyemment for the pre-emption connected with snch home-
stead have been paid and that the patent therefor will issue to sach bome>
steader grant a certificate of title before the issue of the patent therefor.

The Minister, bis deputy, or tbe Secretary or Assistant
Secretary of tbe Department of the Interior would be proper
officers from whom such a certificate might be received and
acted upon in case of Dominion lands, and the certificate
should definitely state the lands and the name of the
** homesteader " in whose name the Crown grant shall issue,
as well as the fact that the pre-emption has been fully paid
for. Compare re Irish, 2 M. L. B. 861.

As to provincial lands, a patent would be required.

Actual pro- 39* The Distriot-Begistrar may grant a certificate of title for lands
pateDtnn- without requiring the actual production of the patent if he is satisfied by
neoetsary. letter, telegram or other information from the proper officers of the

Department of the Interior that the patent for such lands has actually

been issued.

The advice from the Department ought to give the date
of the letters patent, describe the lands and the patentee,
and state whether any special reservations have been made.

See sees. 68 and 84 as to mining rights reserved.

See note to sec. 88 supra, as to proper officer.

^.PPI^*^ ^^- ^^® owner of any estate or interest in land whether legal or
equitable, may by himself, his attorney or agent (a), apply to the proper
District-Registrar to have his title registered under the new system, but
it shall be in the discretion of the District-Registrar to refuse to enter-
tain any such application, except upon such conditions as he may think
fit to impose, unless all other persons who are admitted to be interested

tioni.

APPLICATIONS. 79

in the land shall be parties to the application ; and each person entitled Diflcretion
to any estate or interest in sach land, whether legal or equitable, and
whether it be a lifo estate or an estate in remainder or reversion, shall be
entitled to a separate certificate for snoh estate or interest.

(1) Bnt in case of any application heretofore or hereafter made by the Effect of
owner of the equity of redemption to bring mortgaf!ed lands under the by owner off
new system, such application shall be deemed to have been made for the ^^emn^^
bringing under the new system of the whole estate, both legal and equit- tion.
able, and all the interests of the mortgagor and mortgagee in such lands ;
but nothing herein contained shall afifect any rights, remedies or matters
of contract between the mortgagor and mortgagee in relation to such
lands. (&)

See Rules 2-7, sec. 26 ante.

(a) In Victoria proof of agency is required except where
the agent is a solicitor, — A'Becket Transfer of Land, p. 76.

Before executors can apply for rep^istration as owners of
the testator's land, they must prove the will in the Surro-
gate Court. Re Bannerman, 2 M. L. B. 877.

The following is the usual form of application, with direc-
tions for filling up, and the affidavits verifying the state-
ments, aud the signature where there is a direction in the
application :

FORM OP APPLICATION TO BRING LAND UNDER THE
OPERATION OF " THE REAL PROPERTY ACT OF 1889."

To THS Distbict-Registbab, Land Titles District of

I (Name of appUeant and kU residence^ profession^ trade or occupation^ to
he inserted^, herehy apply to have the land hereinafter described brought
under the operation of the Real Property Act of 1889,

And I declare : —

1. That I am the owner of an estate {If absolute owner, insert in fee
simple in possession ; if estate owned be a less one, insert of freehold in
possession for my life, or otherwise, as the case may require), in all that
piece of land, being {Insert, if pra4:ticable, part of, and describe generally the
Crown allotment , section , or

otherwise according to the Crown Grant, What follows in this paragraph
may be omitted if the land comprise the whole of the Crown allotment),.
which land contains {insert area), or thereabouts, and is described in
the document numbered in the schedule hereto {Insert sufficient

description to identify the 'land).

80 APPLICATIONS.

2. That BQoh land, inclading all buildinga and other improvements
thereon, is of the value of dollars and no more.

8. That there are no documenta or evidences of title affecting each 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 tbt
said laud, or that any other person hath or claims to have any estate or
interest therein in law or in equity, in possession, remainder, reversion, or
expectancy (If there be anyt add other than as follows, and »et the tame
forth),

5. That the said land is occupied (If occupied^ add by whom, and ttate
hie namet residence, trade, profession or occupation, and the nature of the
vccupancy).

6. That the names and addresses, so far as known to me, of the occu-
pants of all lands contiguous to the said lands are as follows : (Insert
name, residence, trade, profession, or occupatimi, or a person unknown).

7. That the names and addresses, so far as known to me, of the owners
of all lands contiguous to the said lands are as follows : (See note above).
(If the certificate of title ie not to issue to the appUcoM, add — And I direct
the certificate of title to be issued in the name of (After name,
add residence, trade, profession, or occupation; and if the land is to be taken in
parts, say, as to the land described in the schedule of land marked A t —
and in the name of as to the land described in the schedule of
land marked B).

8. That I am of the full age of twenty -one years.

Dated this day of , one thousand eight hundred

and

Made and subscribed at Applicant to ngn here before the

District-Registrar or a Notary Pub-
. lie, Justice of the Peace, or Comsiu-
rsioner for taking affidavits; if
abroad, before a Notary Public, or a
Commissioner for taking Affidavits to
be used in Manitoba; or Judge of
a Court of Record,

in the presence of

SCHBDULB OF DOCUUXNTB ReFBRBBD TO.

(i/ the Crown Grant alone, say. Crown Grant of the land ; if more than
the grant, the instruments to be numbered. The date of each instrument and
the names of the parties to it will suffice.)

(Here insert any necessary schedules of land,)

APPLICATIONS. 81

Atfidavit bt Applicant Undeb Bule 2, Sch. S. Sec. 26.

Manitoba:

^ . >• of in the County of

County of

j , make oath and say :

1. I am the (If made by person other than applicant ^inaert " attorney '* or
^' agent of the") applicant named in the within Application.

2. I have a personal knowledge of the facts set forth in the said
Application.

3. The facts, matters and things in the said Application mentioned are
true in substance and in fact.

Sworn before me at
this of

A.D. 18 .

A Commissioner in B. 2^., etc.

Ajtidatit bt Witness Under Sec 4o and Bule No. 4, Sch. S. Sec. 26,

WHEBB CeBTITICATE OP TiTLB IS TO IsSUE TO A PeBSON OtHEB THAN

Applicant.

Manitoba,
Coxmty of

To Wit:

I
of the of

in the County of

make oath and say :

1. That I was personally present, and did see the within Application

duly signed and executed by

the part thereto.

2. That the said Application was executed at

3. That I know the said part and that he is of the full age
of twenty-one years.

4. That I am a subscribing witness to the Application.

Sworn before me at
in the County of
this day of

in the year of our Lord 18

A Commissioner for taking Affidavits in B, R. etc.
MAN.Ii.A*

82 APPLICATIONS.

It was held (in 1887) by the Registrar-General under
the Real Property Act of 1885, in te The Man. N. W.
Railway Co. of Canada and The Commercial Colonization
Co. of Manitoba, that the last named Company being a
corporation organized under '' The Companies Acts 1862
to 1886 " in England, could not be registered as owner of
lands in Manitoba, until a license to bold lands waa
obtained from the Provincial Secretary under 46 & 47
Vic, cap. 88. See 49 Vic, cap. 11, sec 4. In re " The JB.
dt C. Ourney Co.^'' of Hamilton, Ont., the same rule was
followed in re Massey Mfg. Co. (in 1888) it was held that
a Company incorporated under the Dominion Statute as a
trading corporation, could hold lands for the purposes of
its business within the Province and obtain a Certificate of
Title as owner thereof.

A mortgagee under the old system may apply for the
registration of his estate as mortgagee, {vide sec. 59 post}
subject to the equity of redemption, and the effect of such
application is to remove the lands from the operation of the
old system, notwithstanding that the equitable estate
remains in the mortgagor ; this would happen whether or
not default had been made in the payment of the mort-
gage moneys, and it would be discretionary with the Dis-
trict Registrar whether the mortgagor should be made a
party to the application, or be notified of the fact that
application had been made to bring the lands under the new
system, or he might require the certificate to be issued to-
him subject to the mortgage. Where the mortgagor applies
and has the land brought under the Act, the rights of the
mortgagee are not affected, but if the land is sold under
power of sale it must be transferred by an instrument
substantially in accordance with the provisions of this Act.

Although several certificates of title may issue respecting
the same land, each for an interest of a separate nature, no

APPLICATIONS. 88

confusion need arise, for each certificate should specify the
exact nature of the interest in the lands of which each
individual proprietor is registered as owner, and each of
each certificates ought to shew upon its face the nature of
the outstanding interests to which other persons are entitled
amounting to a charge upon the estate or interest certified
to be in the registered owner.

The following memoranda, based on " advice to appli-
cants," by the Commissioner of Titles at Melbourne, afford
plain and simple instructions rendering it easier for appli-
cants to avail themselves of the advantages conferred by
the Statute, and in ordinary cases to take proceedings in
person and supply the information necessary to obtain a
certificate of title under the provisions of the Act : —

1. The applicant may obtain at the Land Titles Office or
from anv law stationer a " Form of Application," and
after perusing it and the marginal notes, fill up the blanks
carefully and in a legible manner.

2. Any number of contiguous pieces of land in the same
district may be included in one application, subject to the
regulations as to consolidation (Rule 6, Sch. 8, sec. 26,
ante), but when the title is passed, if separate certificates
are to be required, it is proper to value separately every
parcel for which a separate certificate is to issue, as fees
are payable on each additional Certificate of Title.

8. An owner who has sub-divided land, and in whom are
vested the sites of any roads or ways not clearly and noto-
riously dedicated to the public use, should include such
sites in his application. He will then be in a position to
grant rights of user to future purchasers.

4. If the application is made by the ap^ent of a corpora-
tion, or by the guardian of an infant, or by the committee
of the estate of a lunatic, such alterations may be made in

84 APPLICATIONS.

the form as the character of the parties or the circum-
stances of the case may render necessary.

6. Where plans of subdivision are referred to, it is well
to obtain and file the plan or a copy of it with the applica-
tion, and to refer to it in the schedule of documents.

6. Applicants need not, in the first instance, be at the
trouble or expense of ascertaining whether any registered
charges or liens affect the property. After the application
and papers have been lodged at the Land Titles Office
proper searches will be made by the officers, and if any
such incumbrance be found, the necessary consent, satisfac-
tion or discharge can be afterwards obtained.

7. No abstract of title need be filed. The abstract books
are themselves consulted, and the deeds perused according
to the custom of ancient conveyancers. The applicant
merely pays the fee on application and files it, duly signed,
verified and attested, with the documents of title specified
in the schedule ; and should take the precaution of obtain-
ing a receipt for the latter, which will be supplied by the
District Registrar on request.

8. Lands for which an application has been made may
be dealt with before the certificate of title has issued,
and when granted the Certificate is made to meet the inter-
vening circumstances. Mortgages for instance may be filed
as provided by section 95 post, if the applicant desires to
raise money on the land after lodging his application.

9. The applicant can obtain one certificate of title repre-
senting the whole land (subject to Rule 6, Sch. S., sec. 26
ante^) or any number of certificates representing different
portions of it, as the title to each portion is completed ;
and either in his own name, or in the name of such persons
as he may appoint. See notes to sec. 45 post.

APPLICATIONS. 86

41* The father, or if the father be dead, the mother or other guardian Applioa-
of any infant, or the committee or gaardian of any lant*tio or person of h^if of in-
nnsonnd mind, may apply to bring lands nnder this Act on behalf of such S**^*!?*^*"
infant, Innatio or person of unsound mind, and a person hoMing a power
of attorney authorizing the sale of a freehold or other estate in any land
may apply in respect of such lands in the name and on behalf of the pro-
prietor, unless such power of attorney expressly prohibits him from
doing so.

See sec. 59 as to special mention of the infant's age or
nature of disability to be made in the certificate of title.

See sees. 110-112 as to Powers of Attorney.

43« Upon the filing of such application, such lands shall become sub- Effect of
ject to the new system, and no registrations under the old system shall be cation,
made as to such lands unless such application is withdrawn or rejected
by the District- Registrar, in either of which events the lands shall be
dealt with under the old system.

Under the former Act (sec. 48 of 1885, as amended by 50
Vic, cap. 11, sees. 12 and IS, and 51 Vic, cap. 22, sec. 12) the
registration of a certificate of filing of the application was
necessary to close the local registry office against the regis-
tration of instruments or plans specifically affecting the
lands applied for ; and registrations in the general register
were deprived of any binding effect upon such lands Now,
under the dual system introduced by the present Act, no
such certificate of filing appears to-be necessary; none
has been provided for. Still it is evident that upon
receiving an application the District Registrar ought in
some manner to note on the abstract the fact of such
application having been made, otherwise nothing but
actual notice of application could affect a person dealing
with the lands under the old system. Upon withdrawal or
rejection also, some memorial to mark the altered con-
dition of the title ought to be noted upon the abstract,
before the registration of any transactions under the old
system.

86 APPLICATIONS.

It is doubtful \?hether registrations in the general regis-
ter under the old system made during the time '* with-
drawn" or '^rejected" lands remained subject to the " new
system/* would bind them without loss of priority after
they have returned to the operation of the " old system."
The amendment to the Administration of Justice Act bv 51
Vic, cap. 29, sec. 83, does not provide for the registration
of certificates under the " new system '* until the lands
have been brought under its operation.

After application no dealings can be registered in the
register of deeds, but senible statutory conveyances may be
treated as substantially in conformity with the provisions
of the Act. Ke Irish, 2 M. L. R. 361. As to such deeds
after the Certificate of Title has issued, see sec. 77 post.

Dutiet of 48* Thereupon it shall be the duty of the District-Registrar, forth-

Stles.^ ^ ^^^^ ^^ cause to be examined all titles which may be submitted to him,

and to deliver to the applicant a written memorandum of all defects

which on such examination may be found in the title, and which he

thinks should be removed.

See Rules 3, 5, 7, 15. Sch. S, sec. 26 ante, auJ sec. 52
post.

D. B. may 44* On the removal of such defects, or if none shall exist, the Dis-
vloe of trict-Registrar shall require the applicant to give such notices as he may
notieea. think should be given and on being satisfied of the applicant's title and
of the due service of all notices that he may think requisite, shall proceed
to bring such lands under the provisions of the new system, and to issue
the certificate of title therefor to the person who appears to be entitled
to the same.

For form certificate of title see Schedule A, sec. 60
post.

See Rules 3-7, Sch. S, sec. 26 ante ; and sec. '»2 pofit.

The applicant must make out at least a safe-holding
iitle ; and it has been the practice of the Land Titles Office,
AS it was established under the Act of 1885, to admit the
registration of any title when it was unexceptional in equity,

APPLICATIONS. 87

and oatstanding legal estates and interests were not allowed
to interfere with its admission to the Begister, as the provi-
tsions of the Statute respecting notice and the lodging of
<;aveat8 permitted an extended application of the equitable
doctrine of acquiescence in the administration of the Act.

A substantially good title, regardless of technicalities, is
all that is required to have land brought under the Statute.
Nothing more is necessary in any case than any solicitor
or conveyancer ought to require in duty to his client,
and in many cases less is required, as safe-holding
titles can be passed and an absolutely marketable title does
not need to be made out to obtain a certificate. On the
other hand, as the Province becomes an insurer against
adverse claims, care has to be exercised in the examination
of the title, and if a purchaser has bought a piece of land,
Toluntarily incurring the risk of taking a defective title by
submitting to conditions which prevent objections being
taken, he ought not to expect the public to adopt his bar-
gain without due investigation.

An applicant who considers that the production of any
plan or document, or the service of any notice, is unneces-
sarily required by any of the Examiners of Title, can bring
the matter before the District Begistrar by way of appeal,
and his decision, if unsatisfactory, may be again appealed
from to a Judge of the Court of Queen's Bench in a
summary manner as provided by section 118 post.

45* Any person applying to bring lands under the new system may in Direction
his application, or npon special request in writing addressed to the Dis- tftie^to
trict-Begistrar prior to the drafting of the certificate of title, direct the other than
certificate of title for snch land, or any part thereof, to be issned in the
name of some other person, and such direction as aforesaid whether
comprised in an application or in a special request, shall from the time
of its filing with the District-Begistrar, have the effect of conveying and Effect of
transferring to such person as regards such land, all the estate or'j^Q ^^'^^
interest, whether legal or equitable, which the applicant is applying to
have registered under the said new system as fully and effectually as if

88 DIRECTIONS.

SUnatare such estate were transferred by deed, (a) The signatare to each applica-
fled. ^ion or request must be verified by the affidavit of the sabscribing wit-

ness in the manner provided under the old system. (6) This section
shall be considered to have been in full force and effect since the first day
of July, A.D. 1885.(c)

(a) This statutory conveyance is not accompanied by
any covenants, and would amount to a quit claim deed
from the applicant to the directee. See sees. 46 and 48 as
to the effect of such direction in cases withdrawn or
rejected. The' operation of the conveyance is suspended
until the filing of the written instrument, whether applica-
tion or request, in the Land Titles Office. It is only the
applicant who has power to convey in this manner, the
directee is not authorized to execute a subsequent direction
in favor of another person with a similar effect under the
Statute.

It might be in the discretion of the District Begistrar
under sec. 44 supra to require notices to be served on
persons beneficially interested, where such a direction is
made by an applicant who holds in a fiduciary capacity.

{b) See Bule 4, sch. S, Sec. 26, and forms given after
notes to sec. 40 ante.

A direction, to be acted on, must be lodged before the cer-
tificate of title is drafted, as from the time the certificate
has reached the ** Engrossing Boom " directions must be
disregarded. In re Paterson it was held by the Begistrar-
General (March, 1888) that a direction vested in the
directee only what estate the applicant had at the time of
the filing of the direction, and that an unregistered mort-
gage previously executed had priority as against the con-
veyance by direction.

On a sale of land the following practice may be
adopted :

DIRECTIONS. 89

1. If all the purchase money baa been paid, the vendor
may become the applicant and direct the certificate of title to
issue to the purchaser, or to the purchaser as to the part of
the land sold, and to himself (the vendor) as to the residue.

2. If the purchase money has not all been paid, and the
vendor is willing to give, and the purchaser to accept, a
title subject to a lien or charge for the unpaid purchase
money, the vendor may become the applicant and direct
the certificate of title to issue in the name of the purchaser
*' subject to a charge on the land in favor of (insert vendor's
names and additions) for dollars, the amount of pur-
chase money for the said land now remaining unpaid with
interest thereon, etc., etc." But in such a case the vendor
could only enforce his rights by a suit in Court in case of
default. Under such circumstances the vendor might apply
to have the certificate registered in his own name subject to
the agreement for sale filed as a charge upon his title, and
subsequently execute a transfer under the Act, which would
operate as a merger of the agreement.

8. An intending purchaser may agree to buy the land at
a certain price conditionally upon the vendor obtaining a
certificate of title under the Statute clear of encumbrances,
within a certain specified time ; and when the title is
approved by the Examiner of Titles a direction may be
filed vesting the property in the purchaser. The certificate
of title will then issue directly to him.

This system of Dibeotioni will be found useful in effect-
ing partitions of property held between different owners.
They should apply together to bring the whole land under
the Statute, and direct the certificate of title to issue as to
one particular part to one of the applicants exclusively,
and so on with the other parts, and thus the expense of
manifolded partition deeds may be avoided.

90 WITHDRAWAL OF APPLICATIONS.

Applioa- 40, An applicant may withdraw hia application as to the whole or

be with- i^y pftrt of the lands comprised therein at any time prior to the regis-

towlu»ufor ^'^^^^^ ^' ^^^ certificate of title,(a) but in case the certificate is directed

part of by the applicant to issne in the name of some other person, the applicant

shall not he allowed to withdraw his application until he produce the

certain written consent duly verified of such person to such withdrawal ; {h) and

^^11^^ the District -Kegistrar shall in such cases, as well as in cases wherein he

shall reject the application, return to the applicant, or to the person

appearing to him to be entitled thereto, all evidence of title lodged in

support of the application as to the part withdrawn, together with the

Proviso as balance of fees properly returnable to him. (c) Provided always that in

cavMttor '^^ nvLGh cases if a 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

Certificate in Chambers may order, and on the withdrawal or rejection of such

mistered' application the District-Registrar shall forthwith issue a certificate of the

withdrawal or rejection thereof, in the prescribed form and under the

seal of his office, and shall, at the expense of the original applicant, cause

the same to be registered at once under the old system, and upon the

registration of such certificate of withdrawal or rejection, the land

thereby affected shall cease to be subject to the provisions of the new

system, and thereafter any further instruments dealing with or affecting

said Und may be properly registered under the old system, {d)

(a) A fee of $1.00 is payable on filing a withdrawal (see
Tariff), and the following form may be used : —

FORM OF WITHDRAWAL.
The Real Property Act or 1889.

Land Titles District | Application No.
of 1

In the matter of (here describe lands to be withdrawn.).

I, of {give post office address and €tddition of in application)^

the applicant in the above numbered application hereby withdraw the said
application in so far as it affects the above described lands, subject, how-
ever, to the conditions as to the consent of interested parties and the pay-
ment of fees, costs and damages imposed by the provisions of the said

Act.

Dated at this day of A.D. 189

Signed in presence of ) .^ * *• . i- #v
irrrs. \ ■ I \ ( (Signature oj Applicant).
(Witness to sign here) I ^ •' j rr

WITHDRAWAL OF APPLICATIONS. 91

NoTB. — The execution of a withdrawal must be attested
aud verified by the affidavit of the subscribing witness in
the same manner as other instruments presented for regis-
tration. Sec note to sec. 74 post as to form.

(h) The consent of any interested party must be verified
in the same mnnner as other instruments.

FORM OF CONSENT TO WITHDRAWAL.

(Commencement same as withdrawal.)

I, of (post ojice address and addition) ^ the person in whose

name the certificate of title for the above desoribad lands was directed to
issue, hereby consent to the withdrawal of said application in so far as it
Afifects the said lands.

Dated at this day of A.D.18

Signed in the presence of i

{WUne„>. ) (S'S""""-')

(For Form of Affidavit see note to sec. 74, post.)

(c) The fee on returning papers is $1.00 (see Tariff),
and the rebate of fees in ordinary cases returnable to the
applicant would be the amount of Commission paid towards
the " Assurance Fund " plus the fees paid for unissued
certificates, less the fees on withdrawal or rejection,
and registering same under old system ; and if any instru-
ments are required to be returned, the fees chargeable for
reiurn of documents. In cases where more than ten instru-
ments have been perused in the examination of title, a fee
of 20 cents per instrument is chargeable, and would have
to be paid by the applicant or deducted from the rebate.

<d)FORM OF CERTIFICATE OF WITHDR.\V7AL OR REJECTION

OF AN APPLICATION.

•*The Rbal Pboperty Act op 1889.

I certify that Application No. , whereby {Insert applicants names
dind additions att in application) applied to bring the following lands ander
*' The Real Property Act of 1889'* {Here describe the lands which are with-
drawn, or respecting which the application is to he rejected) has been this day
{*' withdrawn** or ** rejected" as the case may he) and this certificate is

92 WITHDRAWALS AND KEJECTIONS.

issned for registration under the Lands Registration Act of Manitoba and to
the end that dealings with or affecting said above described land may be
properly registered under the '* Old Systena."

Dated at the Land Titles Office at this day of

AD. 18

(L.S.) District Registrar,

Sec. 21 ante provides that all fees must be paid before
the certificate can issue to permit of registration under the
old system.

D. R.may 47, The District-Registrar may in all cases reject the application as
plication to the whole or any part of the lands therein comprised if the applicant
mwhole or f^^y within a reasonable time, to produce the evidence and proof of facts
proof of necessary or required to make out a good safe -holding title, unless said
produced applicant shall adduce satisfactory proof that he is proceeding without
LbJetT*"' ^'^^^©cessary delay in removing defects and complying with the requisi-
tions made in the title, and in case the application is rejected as aforesaid.
Evidences the District -Registrar shall return to the applicant, or the person entitled
be re- thereto, all evidences of title lodged in support of the application as to

turned. ^^ie part rejected, together with the balance of fees to which he may be
properly entitled, after deducting the amount required to register the
certificate of rejection under the old system as herein provided, and such
registration shall have the effect of withdrawing the land thereby affected
from the provisions of the new system and of bringing them again under
the old system.

See notes to sec. 46 supra.

But he must in cases where a direction has been filed
obtain the consent of the directee or cause notice to be
given as required by sec. 48 j>o«(.

Certificate 48* In case of the withdrawal or rejection in whole or in part of any
drawal or application to bring land under the provisions of the new system, under
wS^ere d^ which a direction or request has been filed with the District-Registrar
ection filed, that the certificate of title shall issue to some other person, (a) the certifi-
cate of withdrawal or rejection, so soon as signed by the District- Regis-
trar, shall have the effect of revesting the lands as to which such with.
drawal or rejection shall have takeA place in the person in whom, had no
such direction or request been filed, they would have remained vested as
fully and effectuaUy as if no such direction or request had been filed as
Direction aforesaid, (b) and no person shall have notice, (c) from such direction or
of title request having been filed, of any right to such lands that may exist

WITHDRAWALS AND BEJE0TI0N8. 98

1>eftween the parties to or named in the direction or reqaest. Provided, ProviBo as
however, that the District-Registrar shall not allow such withdrawal or
rejection except in the ctfse of a withdrawal upon the written consent of
the person to whom the certificate of title was directed to issue, (d)
and in the case of a rejection, upon the written consent of the person
to whom the certificate of title was directed to issue, or upon the expira-
tion of the time limited in a notice of intention to reject {e) given hy the
District-Begistrar to him ; provided also that nothing herein contained Rights of
shall affect the rights as between themselves of any of the parties to such uived.
direction or request.

(a) See sees. 45, 46 and 47 supra.

{b) Sabject, however, to caveats or liens filed against the
interest of the directee during the time the estate remained
vested in him.

{d) See note l, sec. 46 ante.

(«) Seesec. 148j705^ This notice would of course require
to be personally served at the expense of the party inte-
rested. See also Bule 28, Sch. S, sec. 26 ante.

49* ^oceedings under this Act shall not abate or be suspended by Proceed-
death or transmission or change of interest ; but in any such event the ai?te by
District-Registrar before whom the proceedings are pending may make death.
such order for carrying on, discontinuing, or suspending the proceed-
ings upon the application of any person interested as under the circum-
stances may be just, and may require the production of such further
evidence and such notice to be given as he may think necessary.

As the order would vary according to the circum-
stances of each case no general form can be given. The
order should be drafted by or under the direction of the
District Registrar. Apparently the omission to make an
order would not affect the proceedings or the certificate of
title issued under the application in any ordinary case.
Where notice of death has been given the will must be
proved or administration granted before the personal repre-
sentative can deal with the lands. Re Banncrmnn, 2

PR0CEEDINO8 DO NOT ABATE ON DEATH.

M. L. B. 877 ; and re Lewis, 5 M. L. B. 48 ; see also sees. 8,
113, et seq.yposL

It may be doubted whether this section is intended to
apply to proceedings pending in Court or before a Judge
under provisions of this Act.

Death be- 50. In case any applicant or registered owner shall die after ezecnting

cution and ^^7 instrument affecting land and before registration thereof, the regis-

^^strar tration of such instrument may nevertheless be proceeded with in

accordance with this Act, and shall be valid notwithstanding such death.

Compare sees. 81 and 113, et seq,^ p"8t.

51. In case an applicant or the person to whom he or the person apply-
ing in his name (a) may have directed a certificate to be issued shall die
in the interval between the date of the application and the issue of the
certificate, the certificate shall be issued in the name of the applicant or
in the name of the person to whom it shall have been so directed to be
issued, as the case may require, and the land shall devolve in like manner
as if the certificate had been issued prior to the death of the applicant or
of such person, (b)

(a) It does not appear quite clear as to bow any per-
son can apply in the name of another and give such a
direction as could have the effect of conveying the land.

(b) In the event of the death of the applicant or the
directee between the time when the lands became subject
to the new system and the issue of a certificate of title the
provisions of sec. 113 would apply to the lands in dealing
with them. See also Re Bannerman, 2 M. L. B. 377 ; and
Re Lewis 5 M. L. B. 48.

Death be-
tween ap-
plication
and issue
of certifi-
cate.

Notice to 5S* In case the District-Registrar shall find that some person other

be served

on adverse than the applicant or registered owner of any estate or charge has, or

claimant, appears to have, some right or claim to or against the land in question
adverse to that of the applicant or such registered owner, he may cause
such person to be served with a notice stating that a certificate of title
will issue as set out in such notice for such lands unless such person
appearing to have such adverse claim shall, within the time limited by
such notice — which time shall in ee^^h case be fixed by the District-Regis-
trar — file a caveat (a) forbidding the issue of such certificate of title, and
in default of a caveat being filed by such person within the time sa

ESTOPPEL NOTICES. 96

limited or before the issue of such certificate such person having or
appearing to have such adverse claim shall, if he has been personally
served with such notice, be forever estopped and debarred from setting up
any claim to or in respect of such land (6).

(a) Compare sees. 54, 55, 180 and 137. See also sees. 53
and 57, as to notice in cases of tax deeds being seryed substi-
tution ally.

(h) Upon the service personally of such notice an estop-
pel would work outside the Statute. See note to sec. 44
ante as to appeal against unnecessary requisitions.

Omission to lodge a caveat, or permitting a caveat to
lapse, may be ground for a non-puit under sec. 187 post
in an action to recover damages for deprivation of the
land.

Great caution should be exercised by the District Regis-
trar in permitting the service of ofScial notices of thi&
nature, for in some cases it might happen that the person
60 notified would be entitled to be ejected by due legal pro-
cess, or for other causes ought not to be compelled to occupy
the position of a plaintiff, as he would be required to do if
he filed the necessary caveat to preserve his rights. See
Rule 6, Sch. R, sec. 180.

FORM OF NOTICE.

The Real Pbopebty Act of 1889.

In re application No. in the Land Titles Office for the District
of

{Iruert applicants name and additions as in application) ha applied to
bring the land described at the foot hereof under the above Statute ; and
the District- Registrar has directed notice of the application to be served
on you, and has appointed days from such service, after which time,

unless a caveat has been lodged forbidding the same the land will be
brought under the operation of said Act by issuing a certificate of title to
the applicant or to whom he may appoint, and you wiU thereafter be for-
ever estopped and debarred from setting up any claim to or in respect of
said lands.

Note — 1. The lodging of caveat suspends all further action until caveat
be withdrawn, or lapses, or imtil decision obtained from the Court or a

96 ESTOPPEL NOTICES.

Judge. 2. Any person lodging caveat wrongfully and without reasonable
cause is liable to make to any person who may have sustained damage
thereby, such compensation as the Court or a Judge may decide. 3. For
practice as to caveats see sec. 130 of the above Act, the sub-sections thereof
and rules in Schedule K. 4. Any person lodging a caveat must give an
address in the Province at which notices and proceedings may be served.

LAND REFEBRED TO.

{Insert deicription of landi at in application.)

Dated at the Land Titles Office at this of A.D. 18

Dittrict'Repistrar.
(Seal)

N.B. — Where applicant claims under a tax deed, a special reference
should be made to the fact in the notice, as for instance : '* Applicant claimt
title through a tax taU deed of above landi to him by the Municipality of
bearing date the of A,D, 18 .**

tional ser- 53. As to service of any notice or proceeding upon any person pro-
vloe. vided for in section fifty-seven the District-Registrar in a proper case may

order that such notice may be served substitutionally, and such substi-
tutional service shall have the same effect as personal service of the
notice or proceeding upon the person intended to be affected thereby.

Such substitutional services can only be permitted in
cases where title is claimed through tax sale deeds. Notices
served substitutionally have efifect only in virtue of the
Statute under which substitutional service is authorized.
See sees. 52, 57 and 187.

An order for substitutional service can not issue until
the District Begistrar has been satisfied by afiidavits that
the person to be notified is absent from the Province and
that after diligent search his residence can not be
discovered.

The terms of the order are settled in each case by the
District Begistrar.

SERVICE OF NOTICES, ETC. 9?

FORM OP ORDER.
The Real Property Act of 1889.

Province of Manitoba ,

Land Titles District
of

In the matter of application in file No.

and

{Here describe the lands).

Upon the application of the said applicant and apon hearing read the
affidavit of filed herein 1 do order that service of the notice of

said application be e£fected on by pablishing a copy

of said notice in the once in each week during the two weeks

SQcoeeding the date hereof and by mailing copies of said notice and of
this order in envelopes, postage prepaid, addressed as follows :

and also posting np a copy of said notice and of
this order in this office.

And I do farther order that the said parties do have from

sach mailing or posting and from the last of said pablications within
which to file a caveat herein.

Dated at the Land Titles Office at this day of

A.D. 18

District-Registrar.
(Seal)

NoTZ. — The Form op Notice (sec. 52, ante) can be varied for publication
by omitting Notes 1, 2, 3 and 4 and referring to the order that service should
be effected by publication in a newspaper.

^4* All uotices and proceedings affecting lands may be served in the Senricee to
same manner and upon the same persons, officers, and functionaries as in i^ suits,
suits and proceedings in the Court of Queen's Bench or under the
Administration of Justice Act.

See the Court of Queen's Bench Act 1885, sees. 41-44,
and the Administration of Justice Act 1885, sec. 8, and 49
Vic, cap. 35, sec. 3*2.

«I5* Notices and proceedings affecting or intending to affect corpora- Service on
tions, whether domestic or foreign, or any unincorporated company, JlJf^y*^
partnership, firm, or person, whose chief place of business or head office partner-
is without this Province, may be served upon any firm, person, company
or corporation who, within this Province, transacts or carries on any
business as the general agent, for any such person, partnership, firm,
company or corporation, and service upon such agent of any such notice
or proceeding shall have the same effect, and shall be treated as personal
service upon such person, partnership, firm, company or c-orporation.
MAN.Ti.A. 7

98 BULBS OF EVIDENCE.

Compare 46 & 47 Vic, caps. 88, 89, and 48 Vic, cap.
15, Bee 48 (The Court of Queen's Bench Act 1885).

What evi- 56« The District-Registrar and the Examiners of Titles, in investi*

doQco of

title may gB^ting titles, either before or after land is brought under the new system,

be acted jji^y receive and act upon any evidence which is receivable in any court
in this Province, and receive and act upon affidavits and statutory declar-
ations touching or affecting any question of title ; and may also receive
and act upon any evidence which the practice of English conveyancers
authorizes to be received in an investigation of a title out of court, and
any other evidence, whether the same is or is not receivable or sufficient
in point of strict law or according to the practice of English conveyancers,
provided the same satisfies the District-Registrar of the facts intended to
be made out thereby, and may act upon the following rules :

Bales of (1) Recitals, statements, and descriptions of facts, matters, and parties

Becitals. contained in deeds, instruments, registered copies of instruments. Acts of
Parliament, or of the Legislature, or statutory declarations upwards of
ten years old, shall, unless or except so far as they shall be proved to be
inaccurate, be taken to be sufficient evidence of the truth of such facts,
matters and descriptions.

Acknow- (2) Where a registered deed of conveyance acknowledges payment of
of^yment ^e consideration money, such acknowledgment shall be sufficient evidence
in deed. ^f payment, except so far as such acknowledgment may prove to be
inaccurate.

Orlffinal of (3) It shall not be necessary to produce or account for the original of
dMd. ^^7 registered deed, document or instrument.

Proof by (4) Proofs may be in the form of affidavit, statutory declaration or
viva voce.^ certificates, or may be given viva voce or may be in any other manner or
form that under the circumstances of the case is satisfactory to the
District-Registrar in regard to the matters to which the same relate.

(5) The District-Registrar and the Examiners of Titles may receive
and administer oaths, affidavits and affirmations touching or affecting
any matter or question of title.

Compare 46 & 47 Vic, cap. 28, and 49 Vic, cap. 85, sec.
21. Sub-sec 19 of sec 8 declares what may be received
BM prima facie proof of Crown Grants.

See Bules 2 and 8 Sch. S. sec 26 ante.

The power to administer oaths, etc, would be strictly con-
fined to matters and questions of title under the Statute.

TAX BALE TITLES. 99

The officers mentioned would not be functionaries capable
of receiving declarations under the Act respecting extra
judicial oaths.

fl7« In the case of tax sale deeds, the District-Kegisrar shaU not take Applica-
notice of any technicality, or irregularity in the tax sale, or in any of the ^e oftox
proceedings relating thereto, and it shall not be necessary to have the ^ale deeds,
title to the land described in such deed examined prior to such sale, (&)
bat a certificate from the treasurer of the municipality which has issued
such deed shaU be furnished to the effect that there were taxes in arrears
and due for which such lands could properly have been sold for taxes at
such sale, (e) and the District* Registrar shall satisfy himself that the
fiale was fairly and openly conducted, (d) and he shall also cause to be What proof
•enred upon aU persons appearing to be the persons who would have been ^^^^^^y
interested in such lands, except for such tax deed, a notice requiring
ihem within the time limited by such notice to contest the claim of the
tax purchaser by way of caveat, and in default of a caveat being filed
within the time so limited, or before the registration as owner of the per-
son entitled under such tax deed, all persons so served with notice siiall
be forever estopped and debarred from setting up any claim, to or in
respect of the lands so sold for taxes, and the District-Registrar shall
register the person entitled under such tax deed as owner in fee simple of
the said land, (e)

(a) In case of lands under the new system being sold for taxes, the Where
District- Registrar, on an application of the person entitled under the tax q^^^^. ^^
deed may dispense with the customary production of the certificate of ^^ sold
title, (f) and cancel the same in full or partially, as the case may be, by prodaction
memorial on the certificate of title in the Register Book, and may issue a cite^aJs?
new certificate of title to the person entitled under the tax deed as regis- pensed
tered owner of said lands. The provisions of this section shall apply to
such application the same as if the applicatioQ were as to lands not
already under the new system, {p)

(b) An examination is always necessary to see what per-
sons have such interest in the lands as might entitle them
to notice of the proceedings being taken in the Land Titles
Office ; also to ascertain in the case of ''Manitoba Act" Grants
whether the lands were exempt from taxation by reason of
the half-breed grantee being under the age of 18 years and
still owner of the lands when the taxes were imposed.

See Manitoba Municipal Acts as to exemptions.

100 TAX SALE TITLES.

(c) The Treasurer's certificate ought to be in the form of
au affidavit or declaration, and should shew the years for
which taxes were owing and unpaid at the time of the sale.

(d) FORM OF auctioneer's CERTIFICATE.

{Formal parts tame as order seo. 53 ante),

I, {imsert names and additions of the officer) make oath and say:

1. That my names and legal additions and the official capacity in whiolk
I acted in this matter are ahove correctly set forth.

2. That hy virtue of a warrant issued under the Manitoba MunicipiJ
Act, 18S6, and Amending Acts {or as the cast may he) for the sale of land»
for arrears of taxes bearing date the of A.D. 18 ,
1 did, on the day of A.D. 18 , in pursuance U>
advertisements duly published, at in the County of

in Manitoba, being the time and place mentioned in such advertisement^
sell by public auction the lands above described together with other lands,
mentioned in said warrant and advertisement.

3. That the said sale was conducted by me in a fair, open and propar
manner and according to the best of my skill and judgment.

Sworn, etc. I

(e) See Form given at sec. 52. It is proper in noticea
given under this section to add a special memo., giving
shortly the particulars of the tax deed under which title is
claimed.

Mortgagees, encumhrancees and lien holders ought to be
notified as well as owners, but it is doubtful whether execu^
tion creditors are entitled to notice ; it would seem prudent
in some cases that they should be notified. See sec. 52
and notes ; also as to substitutional services, see sec. 58
and notes.

(/) The production of the certificate could not be dis-
pensed with until after 80 days' notice, published as pro*
vided by sub-sec. 6 of sec. 68, but the proofs of non-deposit,
etc., would not be necessary in such a case. It is in the
discretion of the District Registrar to require a certificate
to be produced even in the case of a transfer under a tax
deed, and he has power within his district, under sec. 68»

REOISTEUED OWNERS. 101

sab-sec. 1, to compel any person having it in his possession
to produce the certificate for the purpose of cancellation.

The Municipal Act requires the registration of all tax
deeds to be made within six months from the expiration of
the time for redemption in order to secure priority over
subsequent purchasers and mortgagees for valuable con-
sideration without actual notice.

(g) This proviso requires notices to be served on all the
parties interested in the lands in the same manner as if
the tax purchaser were an applicant for first registration of
the title. See sec. 52 and notes ante.

Reoibtbation of Title.

5$« Every certificate of title shall be deemed and taken to be regis- Y^^^a^^
tered under the provisions and for the purposes of this Act, so soon as be regis-
the same shall have been marked by the District- Registrar with the folio ^®^^^*
and volume on and in which it is embodied in the Register Book, ( a) and
every transfer and other instrument purporting to transfer, or in any way
to affect land under the new system, shall be deemed to be so registered
as soon as a memorial thereof as hereinafter described shall have been
entered in the Register upon the folio constituted by the existing certifi-
cate of title of such land. (6)

{a) See Rules 16 and 21), Sch. S, sec. 26 ante.

(b) See secrj. 74 and 76, and Eule 16, Sch. 8, sec. 26.

Sec. 74 applies to all instruments, and declares that the
enregistration makes the instrument, so memorialized, part
and parcel of the Register, and that it is only \vhen so
embodied and sealed that it becomes effective as to the lands
described in the Register. The "Register" here referred
to is the existing duplicate certificate of title kept by the
District Registrar under sec. 60 post. Sec. 81 provides
how instruments shall operate as between the parties to
them prior to their having become eflfective through
euregistration.

In the matter of the Massey Manufacturing Co. and
Gibson, a case was submitted by the Registrar General for
the opinion of the Court, the facts being as follows : —

102 REGISTERED OWNERS.

On the 29th March, 1888, W. G. was registered owner of
the lands, and the Massey Mfg. Co., on that day registered
a writ of execution they had issued against him, mention*
ing these lands in the schedule annexed to the writ.

On the Ist May, 1888, a transfer of the land from 6. to
H., dated 23rd February, 1888, was filed and registered,
and thereupon a certificate of title was issued to H., but
subject to the Ji. fa. Affidavits were then filed, shewing
that the transfer had been executed on the day of its date,
and the money paid within a few days afterwards, and on
the strength of this proof application was made to have the
fi. fa. removed from the Register and certificate of title as
an encumbrance affecting the lands. The Registrar
General refused the application, and, at the request of the
parties, submitted the question to the Court, whether under
the circumstances the registration of the execution against
G. bound the lands as against H.

The case was fully argued before Mr. Justice Bain in
Chambers : W. H. Culver, Q C, for the Coy., and C. P.
Wilson for H., the registered owner^ asking to have the
fi. fa. removed.

His Lordship held that apart from the Real Property Act
the land would not be bound by the execution ; but looking
at the provisions of the Act the unregistered transfer would
not avail to prevent the execution binding the land. The
whole object and policy of the Act is for all purposes, and
against all the world to vest the beneficial ownership of the
land in the person named in the certificate of title. Thia
ownership, which is the creation of the Statute, is changed
only by the registration of a transfer which has been exe-
cuted in accordance with the Act. A properly executed
transfer gives the transferee a right to have the land regis-
tered in his name, (a) bat, as regards the land itself, until

(a) See sec. 81 po9t.

BEOISTBBED OWNERS. 108

it is registered it has no effect whatever, and the land still
remains the property of the transferror, the registered
owner. The Registrar General was right in issuing the
certificate of title to H. subject to the execution, and in
refusing the application for its removal. [Since going to
press this case bad been reported ; Herbert A Gibson, 6
M. L. R. 191.]

Mr. A'Becket, in his work on the Transfer of Land
Statute (Victoria), cites the following cases under section 42
of that Act on the point of the necessity of registration to
the operation of every instrument, viz : — National Bank v.
United Hand-in-Hand, etc., Co,, 4 App. Cases 891, 407 ;
M*Cahill V. Henty, 4 V. L. R. (E.) 68 arg.\ and Lange v.
Rudwolt, 6 S. A. L. R. 75 ; 7 8. A. L. R. 1, discussed in
Cuthbertson v. Swan, 11 8. A. L. R. 102.

Compare *'SedgJield's Practice,'' 82, 88.

SO. The owner (a) of land or any estates or interest therein, under Owner en-
the operation of the new system shall be entitled to reoeive a certificate Certificate.
of title to the same; (6) and if any certificate be issued to a minor, luna- in case of
tic or person of unsound mind or to a person under any other disability, JJm** to*^
the District-Registrar shall state in such certificate of title the age of stated,
such minor, or the nature of the disability so far as known to him.

(a) See ante sec. 8 (2) as to interpretation of the word
" owner.'*

(b) See sec. 40 and notes ante. It would be in the dis-
cretion of the District Registrar whether the trustee for the
sale, etc., of land should receive a certificate of title unless
all persons interested had consented to the application.

The District Registrar is directed by the Act to make no
entry in the Register of any notice of trust. 8ee notes to
sec. 86 post.

60* All certificates of title to be granted by the Distriot-Begistrar Form of
shaU be in the prescribed form (Schedule A) and shall be signed by the of'SSe**^
District-Registrar and shall be sealed with the seal of his office, (a) and a
duplicate thereof shall be preserved and registered by the District-
Registrar in his office, in a book to be kept for that purpose, (b)

104 REGISTERED OWNERS.

(a) No certificate of title can be signed during the time
the office is open for purposes of registration. See Hule 29,
Sch. S, see. 26 ante.

(b) As to the " Register/' see Rule 9, Sch. S, sec. 26
atite. Compare sec. 68 (7) pottt, where the certificate bound
up in the ** Register " is referred to as tlie ** original/'

SCHEDULE A.
{Section 60,)

Gbrtificate of Title.

A. B. of {here insert description and if certiAcate Ite issued pursuant toan^
transfer referred to, insert Tnemorandum of transfer on back), is now seized of
an estate {here state wliether in fee simple, or for life, or as the case may be),
• subject to such encumbraiicos, liens and interests as are notified by
memorandum underwritten (or endorsed hereon), of that piece or parcel
of land known or describad as follows :

In witness whereof I have hereunto signed my name and affixed my seal
this day of

DUtrict-Re-jistrar. L^'S.]

Signed in the presence of )

the day of f

Date of HI* The date of the certificate of title shall in all cases be the date

of titled ^ appearing in the body thereof, or the date of ret^istration of the last

encumbrance (whether existing or discharged) registered under the new

system and endorsed on the back of the certificate of title, whichever shall

be the later date.

See sees. 64, 146, and 147 p^st.

Tenants in ||J2« In all cases where two or more persons are entitled as tenants in
may re- common to an estate of freehold in any land such persons may receive
®®|y® *®P.fl* one certificate for the entirety or each may receive a separate certificate
catoB. for his undivided share.

As to joint tenants see sec. 82 post.

Efff.ct or Registration of Title.

Implied 03* The land mentioned in any certificate of title granted under this

Slons. ^^ Act, shall, by implication, and without any special mention in the cer-

IMPLIED QUALIFICATIONS. 105

tificate of title, unless the contrary be expressly declared, be deemed to
be subject to : —

la) Any subsisting reservations contained in the original grant of said Besorva-
land from the Crown ; (1) grant.

(5) Any municipal charges, rates or assessments at the date of such Taxes, etc.
certificate, or which may be thereafter imposed on tbe said land, or
which have theretofore been imposed for local improvements and which
are not then due and payable ; (2)

(c) Any subsisting right of way or other easement, howsoever created Easement,
upon, over or in respect of said land ; (3)

(d) Any subsisting lease or agreement for a lease for a period notl^^B^^not
exceeding three yeais where there is actual occupation of said land years,
under the same ;

{e) Any judgments, decrees, or orders, for the payment of money Judg-
against the registered owner of such lands, and any mechanic's liens creos, etc.
affecting the said lands which may be respectively registered since the
last date of the certificate of title, and maintained in force under the pro-
visions of the Acts relating to the Administration of Justice, the Acts
respecting the County Courts, or of the Act respecting Mechanic's Liens.
(4) and priority of re;{istration in the Land Titles Ofiice shall prevail in
settling the priorities between them ;

(/) All public highways embraced in the description of the lands Pu^^lic

• V|1«'1t WR VH

iDcladed in any certificate shall be deemed to be excluded from the '^
certificate ;

iff) Any right of expropriation which may by statute be vested in any Expropria-
person or body corporate ;

{h) The provisions of Section sixty-five of this Act. pjfp ^ ^^

this Act.

(1) See section 84 post.

(2) As to ta.K sale deeds see see. 57 (a) ante.

(8) As to regiscratioD of easements see see. 79 pout.

(4) As to executions see 52 Vic, cap. 36, sees. 18 and 14,
which limits their binding effect on lands to such executions
as were in the Sheriflf's hands on Ist April, 1889, and their
renewals.

In Burt V. Clarke, 5 M. L. R. 150, it was held (Bain J.)
that a County Court judgment for less than $100 registered
before the County Court Act of 1887 came inio force, and

106 IMPLIED QUALIFICATIONS.

re-regi8tered before Ist Noyember, 1887, was valid, and
coald be enforced in equity.

Since 29th April, 1884, no premium note or undertaking:
under the Manitoba Mutual Fire Insurance Companies Act,,
creates a lien upon lands. 47 Vic, cap. 84, sec. 7.

Bules 26 and 27, Sch. S, sec. 26 ante, provide for the
removal of lapsed judgments and mechanics* liens.

The Seed Grain Mortgage Act of 1876 (C. S. M. cap. 48)^
is still in force, and such mortgages would remain in full
binding effect, although any mention thereof might be
omitted from the certificate of title, because the rights of
the Grown cannot thus be interfered with. A person lead
into error by such omission might have recourse under the
provisions of sections 132-141 post.

A lien may be secured lor seed grain advances by a^
municipality, on filing notes in the office of the Clerk of the
County Court, sec. 52 Vic, cap. 10, sec. 9.

Every person dealing in lands should, before concluding
the transaction, satisfy himself as to caveats, pending suits^
judgments, liens, etc. (see sees. 108, 180, 181 and Bule 8,.
Sch. S, sec. 26 ante), by a search at the proper Land Titles
Office, as even where the lands affected have been specifically
mentioned, the memorial may not appear on the certificate
of title which may not have been produced in the Land
Titles Office since the filing of the caveat or charge. At the
same time it might be asked whether there is a chance of
a prior certificate having issued which would affect the
title under the exceptions made by section 64 post.

Certificate 64. Every certificate of title granted under this A.ct, when duly regis-
evidenceof ^^^* B^^^^ (except in case of fraud wherein the registered owner or
title. encumbrancee shaU have participated or colluded and as against such

registered owcer or encumbrancee) so long as the same remains in foroe
and uncancelled under this Act, be conclusive evidence at law and in
equity as against Her Majesty, as represented by the Government of the
Province of Manitoba, and all persons whomsoever, that the person.

CERTIFICATES OP TITLE. 107

named in such certificate is entitled to the land included in such certi-
ficate, for the estate or interest therein specified, subject to the exceptions
and reservations mentioned in section sixty -three, except as regards any
portion of land that may by wrong description of boundaries or parcels
be included in such certificate, when the holder of such certificate is
neither a purchaser or mortgagee (<i) for value, nor the transferee of a
purchaser or mortgagee for value, (b) and except as against any person Ezcep-
claiming under any prior certificate of title granted under this Act in
respect of the same land, and for the purpose of this section that person
shall be deemed to claim under a prior certificate who is holder of, or
whose claim is derived, directly or indirectly, from the person who was
the holder of the earliest certificate granted, notwithstanding such certi-
ficate may have been surrendered and a new certificate granted upon any
transfer or dealing.

(a) The *' Mortgagee " is not mentioned in the corres-
ponding section of the Victorian Act.

(6) See sees. 85, 133 and 143 pogt.

6«l« Any certificate of title issued upon the first bringing of land When cer-
under the provisions of the new system, and every certificate of title void ae tq
issued in respect of the same land, or any part thereof, to any person ad^oi**®
claiming or deriving title under or through the applicant owner, shall be
void as against the title of any person adversely in actual occupation of,
and rightly entitled to such land or any part thereof, at the time when
sach land was so brought under the new system, aud continuing in such
occupation at the time of any subsequent certificate of title being issued
in respect of the said land.

See sec. S (20, as to what '* possession '* includes, and
sec. 67 (9) post as to ejectments, etc.

Compare sec. 127 of the Act of 1885, and sec. 40 ante.

The Registrar-General in re Jackson and McPherson
(1887), required the applicant to vindicate his title by
ejecting the adverse occupant, before registration under the
Act.

On this subject, and as to what constitutes ** adverse
possession/^ see A'Becket's Transfer of Land Statute (Vic-
toria), p. 108 (g), cases there cited ; Chisholm v. Capper^ 6
W. W. & A'B. (L.) 226 ; N. C. 22, 66, 60; Staughton v. Brown,
1 V. L. R. (L.) 150, 169, 163 ; Orave v. Wharton, 6 V. L. R.

108 CERTIFICATES OF TITLE.

(L.) 97 ; Robertson v. Keith, 1 V. R. (E.) 11 ; 1 A. J. R. 14 ;
and Murphy v. Michel, 4 W. W. & A'B. (L.) 13, 19. See
also Jones Torrens* System, pp. 56, 67-70 and 333. His
Lordship Chief Justice Taylor, in the introduction to his
work on the Quieting Titles Act, says : ** The possession of
the property and not merely the paper title should be
inquired into. * * * jf the possession has not always
gone with the title, satisfactory evidence of the reason
cannot safely be dispensed with.*'

In Scott V. Nixon, 3 Dr. & War. 405, Lord St. Leonard's
remarks ** that a clear title, and just as good as any other
title might be acquired by adverse possession." See
Taylor on Titles, 53 ; Bart on Vendors, 369 ; Taylor's Ven-
dors and Purchasers, 389 ; Darling on Limitations, 389 ;
Hyde v. Delamay, 6 Jur. 119.

Certificate 66« In any suit for specific performance brought by a registered
evidence in owner of any laud subject to the new system, against a person who may
s^e* 'fl^^ have contracted to purchase such land, not having notice of any fraud
I>erform- or other circumstances which, according to the provisions of this Act,
ance. would affect the right of the vendor, the certificate of title of such regis-

tered owner shall be held in every court of law or equity to be conclusive
evidence that such registered owner has a good and valid title to the land
and for the estate or interest therein mentioned or described, and shall
entitle such registered owner to a decree for the specific performance of
such contract.

See sec. 147 post and Rule 20 Sch. S, sec. 26 ante, making
certified copies evidence.

Compare sec. 67 post, as to ejectment and other actions.

This section must be read in connection with sections 64
and 65 ante, and sees. 85, 133, 143, and 146 post. The
section precludes technical objections by an unwilling pur-
chaser seeking to escape from his contract.

Ejectment 67* No action of ejectment or other action for the recovery of any
ca^s^^*'^ land under the new system shall lie or be sustained against the registered

owner for the estate or interest in respect to which he is so registered,

CTCcept in the following cases, that is to say :

BJECTMBNT8 — EXCEPTIONS. 109

(1) The case of a mortgagee as against a mortgagor in defatilt ; Mortgagee.

(2) The case of an encombranoee as against an encumbrancer in Enoum-
default ; ''"""^-

(3) The case of a lessor as against a lessee in default; (a) Lessor.

(4) The case of a person deprived of any land by fraud as against the Fraudulent
person registered as owner of such land through fraud, or as against a tary trans*
person deriving otherwise than as a transferee bona fide for value, from or '^^■
through a person so registered through fraud ; (6)

(5) The case of a person deprived of or claiming any land included in Misdesorip-
any grant or certificate of title of other land by misdescription of such

other land or its boundaries as against the registered owner of such other
land not being a transferee of such other land or deriving from or through
» transferee thereof bona fide for value ; (6)

(6) The case of a registered owner claiming under the instrument of Prior in-
title prior in date of registration under the provisions of this Act, or in

any case in%hich two or mflrft ^i»nts, or two or more certificates of title,
or a grant and a certificate of title may be registered under the provisions
of this Act in respect to the same land ; (6)

(7) For rights arising or partly arising after the date of the certificate Aigbts sub-
of title under which the registered owner claims ; az?rinK. ^

(8) For rights arising through possession ; (c) Possession.

(9) And in any case other than as aforesaid, the production of the In all otb«r
registered certificate of title, shall be held in every court of law or equity fl^te of '^'^
to be an absolute bar and estoppel of any such action (d) against the^^^®*^!!^*^
person named in such instrument as seized of, or as registered owner or

lessee of the land therein describe".!, any rule of Inw cr equity to the
contrary notwithstanding.

(a) This paragraph is wide enough to cover default in
any condition made by the lessee, whether implied under
sec. 89 (2) j>09ty or expressed in the contract.

Mr. A'Becket, under the corresponding section (188) of
the Victorian Act, refers to Saunders v. Wadham, 4t S. A. L.
K. 78 ; BucknaU v. Reid, 10 S. A. L. R. 188.

(b) See sees. 64, 85, 183 and 148.

{d) This includes actions at law ejuadem generis, but it
would not be a bar to a suit to enforce an equitable claim.
See sees. 123 and 129 post. In this connection reference

110 DISTRICT BEOISTRABS' POWERS.

may be had to the case of Cuthbertaon v. Su*an, 11 S. A. L. B.
102.

See Jones Torrens' Syatenif 824.

FOWXBS AND DtTTIES OF DISTRICT KeOISTIUBS.

Fowen of 68* The District-Registrar may exercise the following powers in addi-
tion to others conferred under this Act : —

Prodaotion (1) He may require the owner or mortgagee, or other person interested
mentB- ' ^ ^i^y ^^^^ ^^ respect of which any transfer, lease, mortgage, incum-
brance or other dealing, or release from any mortgage or encumbrance
about to be transferred or transmitted, or in respect of which any trans-
fer or transmission is about to be registered, or any agent of any such
owner, mortgagee or other person or any person having an instrument
in his possession in any capacity to produce any such instrument in his
possession or within his control, affecting such land or the title thereto.

See sec. 121 post. See form infra sub-sec. 8.

The Qaeensland Royal Commission on the Real Property
Acts reported as follows to Parliament in 1879. See Re-
port, page 15 : —

'' The extent of the power of the Registrar-General to call
for the production of documents seems to be not clearly
defined. We think that it should extend to requiring, and»
if necessary, compelling the production of any document
relating, or purporting to relate, to land under the provi-
sions of the Acts which it is in his judgment necessary or
desirable to have produced ; and that he should be autho-
rized to retain any document which the holder had impro-
perly obtained, or which had been issued or signed in fraud
or contravention of the law."

Bankers and money lenders generally should bear in
mind that the mere deposit of a certificate of title without
lodging a caveat will give no safe security, unless they
watch the newspapers published or circulating in the neigh-
bourhood of the lands for advertisements of an intention
of dealing with the property without the production of the
certificate.

SUMMONS TO WITNESSES. Ill

(2) He may sammoQ any snch person as aforesaid, or any person Bummona.
^whose evidence may be necessary or material in respect to any such nesses!
lands, to appear and give any explanations upon oath respecting sach

lands, or the instroments affecting the title thereto.

For form see sub-sec. 8 infra.

(3) Every such summons issued by the District- Registrar as above Form of
mentioned, shall be in the prescribed form or to the like effect, and in the
event of any disobedience of any such summons being certified to the How en-
Court of Queen's Bench, may be enforced by such Court in like manner °^^^ '
and by the like proceedings and with a like penalty as subpoenas of such
Court.

See sec. 121 post,

FORM OF SUBPCENA.
The Real Property Act of 1889.
Frovxkce of Manitoba. "^ In the matter of application file

The Land Titles District of
TO wit:

No. and

{Here describe the lands.)

I command you, and each of you, that all other business and excuses
whatsoever ceasing, you do appear personally before the District Regis-
trar for the Land Titles District of in Manitoba, in the Land

Titles Office at in the Province of Manitoba, on

the day of next, A.D. 189 , at o'clock

in the noon, and so from day to day until the matter herein men-

tioned be disposed of, and also that you bring with you and produce at
the time and place aforesaid {here describe the instrument y etc., to be
produced)^ then and there to testify and show all and singular those things
which you, or either of you, know, or the said deed , instrument ,
record , document or writing doth import, of and concerning this
matter on behalf of the Applicant ; and this you or either of you, shall
by no means omit, under a penalty of Five Hundred Dollars, and all
other penalties provided by the said Act.

Witness the hand and official seal of the District Registrar for the
Land Titles District of at

this day of A.D. 189 .,

[Seal.]
District Hegistrar,

112

CORRECTIONS AND CAVEATS.

Correction
of errors in
certifi-
cates, etc.

Proviso.

May enter
caveat on
behalf of
Her Ma-
jesty and
others.

(4) He may, upon such evidence as may appear to him sufficient in that
hehalf, so far as practicable, without prejadioing the righte conferred
npon transferees for value, correct errors in certificates of title or in the
Register, or in entries made therein respectively, or in any memorial
certificate, exemplification or copy of any instrument made in or issuedfa)
from the Land Titles Office, and may supply entries omitted to be made;
provided always, that in the correction of any such error he shall not
erase or render illegible the original words, and he shall fix the date
upon which such correction was made or entry supplied with his initials,
and every certificate of title so corrected, and every entry so corrected or
supplied, shall have the like validity and effect as if such error had not
been made or such entry omitted.

(a) Evidently a comma ought to be inserted here.

(5) He may enter a caveat on behalf of Her Majesty or on behalf of
any person who may be under the disability of infancy, lunacy, or
unsoundness of mind, or absence from the Province, to prohibit the trans-
fer or dealing with any land belonging, or supposed to belong, to the
Grown or to any such person as hereinbefore mentioned, and also to pro-
hibit the dealing with any land in any case in which it shall appear to
him that an error has been made by misdescription of any such land or
otherwise, in any certificate of title or other instrument, or for the pre-
vention of any fraud or improper dealing.

It woald not appear necessary that this caveat should
comply with any of the forms given under sec. 130, nor be
subject to any of the rules respecting caveats or procedure
in matters of caveat. A simple caution against registra-
tration is all that is required.

Absence from the Province would probably be insufficient
ground for a caveat after ten years from the date of the
instrument conferring title. See sec. 56 (1) ante.

See A'Becket's note to sec. 121, sub-sec. III., of the Vic-
torian Act.

May dis- (6) The District-Begistrar, in case he shall see reasonable cause for so

production ^^^'^S* ™*y disp^J^se with the production of any certificate of title, lease

of certifl- or other instrument, for the purpose of entering the endorsement by this

Act required to be entered upon the dealing with land; and upon the

registration of such dealing the District-Registrar shall note in the entry

of the memorial in the Register that no entry of such memorial has been

LOST CERTIFICATES. 118

mftde on the duplicate grant or other instrument, and such dealing shall,
thereupon, be as valid and e£fectual as if such memorial had. been so
entered ; Provided always, that before registering such dealing, the Dis-
trict- Registrar shall, in such case, require the party dealing to make an
affidavit that such grant or instrument has not been deposited by way of
lien or as security for any loan, and satisfactorily to account to the Dis- Must ao-
trict- Registrar for its non-production, and shall give at least thirty days' uon-pro-
notice of his intention in some newspaper published in the Land Titles ^ J^^JL 39
District, if there be such newspaper, or, in the absence of such publica- daya^pub-
tion, to give such public notice as the I)i8trict-Regi8trar may think *® ^^ ^^'
necessary. The number of insertions in such newspaper and the form of
the notice shall be settled by the District-Registrar.

A provisional certificate can also be obtained, if neces-
8ary» under sec. 7 post.

Since tbe enactment of sec. 109 post, this section can
only apply to lost or destroyed certificates. The proofs of
loss or destruction should be by affidavit, tracing tbe lost
certificate to the last person who had it in custody and who
should account for its non-production, and the presumption
of its pledge as collateral should be negatived.

FORM OF NOTICE FOR PUBLICATION.

The Real Fbopebty Act of 1889.

Notice is hereby given that on or after the day of

A.D. 18 unless cause to the contrary be shewn, I will dispense with
the production of the Certificate of Title for {lure describe lands) issued
on the of A.D. 18 , to {insert names and additions

of registered owner) for the purpose of endorsing thereon the memorial of
a dealing affecting said lands presented for registration by the said regis-
tered owner (or by A, B. a mortgagee^ or person interested in said lands, or
as the case vmy be).

Dated at the Land Titles Office at this of

A.D. 18

District-Registrar.

As to deposits as equitable mortgages reference may be
had to London Chartered Bank v. Hayes, 2 V. R. (E) 104,
2 A. J. E. 60 ; Re Nathan, 1 S. A. L. R. 166 ; Richards v.
Jones, ib. 167.

MA.N.L.A. o

114 PROVISIONAL CERTIFICATES.

Provuional (7) Jq the event of a grant (a) or certificate of title of land being lost
certtflcate r» \ / o

mayissae or destroyed, the owner of snch land, together with other persons, if

vi^hMtn' '^^y* having knowledge of the circumstances, may make a statutory
destroyed, declaration stating the facts of the case, the names and descriptions of
the registered owners, and the particulars of all mortgages, encumbrances
and other matter affecting such land and the title thereto, to the best of
the declarant's knowledge and belief, and the District- Registrar, if satis-
fied of the truth of such declaration and the bona^fidrs of the transaction,
may issue to the owner of such land a provisional certificate of title of
such land, which provisional certificate shall contain an exact copy of the
original grant (a) or certificate of title bound up in the Begister, and of
every memorandum and endorsement thereon, and shall also contain a
statement why such provisional certificate is issued; and the District-
Registrar shall at the same time enter in the Register, notice of the issuing
of such provisional certificate and the date thereof and why it was issued,
and such provisional certificate shall be available for all purposes and uses
for which the grant, (a) or certificate of title so lost or destroyed would
have been available, and as valid to all intents as such lost grant or oer-

Thirty tificate ; Provided always, that the District-Registrar, before issuing such

d&vs vrior

notice to be provisional certificate, shall give at least thirty days* notice {b) of his

given. intention so to do. in some newspaper published in the Judicial District

in which such land is situate, or if there be no such newspaper, then by

giving such public notice as the District-Registrar may deem expedient.

The number of insertions in such newspaper shall be settled by the

District- Registrar, (c)

(a) The word " grant ' ' here has evidently been inserted
through inadvertence, as will be seen by the context.

Compare sec. 60 ante, which refers to the certificate
bound up in the " Register " as a " duplicate.'*

(b) FORM OF NOTICE FOR PUBLICATION.

The Real Property Act of 1S89.

Notice is hereby given that on or after the day of

A.D. IB a provisional Certificate of Title will be issued to {insert names
and additions of registered owner) under the provisions of above Act for
{describe lands) subject to all subsisting registered charges, to replace the
Certificate of Title issued to the said {registered otpfier^s name) on the

of A.D. 18 , which he alleges to have been lost or

destroyed.

Dated at the Land Titles Office at this of

A.D. IB

District'Reffifftrar.

PLANS. 115

(c) Where the prodaction of a certificate has been dis-
pensed with on a transfer of all the land, a provisional
certificate would be unnecessary.

A registered proprietor of several adjoining allotments
nnder separate certificates of title having lost them applied
under the corresponding section of the Victorian Statute
for a consolidated special certificate, but his application was
refused, it being considered that a special certificate should
be issued in respect of each allotment : Sedgejield's " Prac-
tice of the Office of Titles " (yictaria) 86,

(8) The District-Registrar may require the owner of any land, other May re-
than town plots, within his district desiring to transfer or otherwise to S^K^^^f?
deal with the same under the provisions of this Act, to deposit a plan of on follow-
such land signed hy the owner, or his properly authorized attorney, with ^^ ^'
the several measurements and hearings marked thereon, and certified hy
a Provincial land surveyor, and such plan shall be upon one of the
foUowing scales : —

(a) If the land, or the portion thereof proposed to be transferred or If less thaa
dealt with, is of less area than one acre, then such plan shall be on a scale ^^^ ^^^^'
of not more than two chains to one inch.

(6) If such land, or the portion thereof proposed to be transferred or Over one
dealt with, is of greater area than one acre, but not exceeding five acres, more thani
then such plan shaU be on a scale not more than five chains to one inch, fi^®*

(c; If such land, or the portion thereof proposed to be transferred or Over five
dealt with, is of greater area than five acres, but not exceeding eighty more than*
acres, then such plan shall be on a scale not more than ten chains to one eighty,
inch.

(d) If such land, or the portion thereof proposed to be transferred or Over
dealt with, is of greater area than eighty acres, then such plan shall be ®^^7*
on a scale of not more than twenty chains to one inch.

{e) If such proprietor neglects or refuses to comply with such require- Negleotto-
ments as aforesaid, it shall not be incumbent on the District-Begistrar to ^^^P'^r*
proceed with the registration of such transfer or dealing.

{9) Where parts of different legal sub-divisions or parish lots are Farts of
included in the same transfer, the plan shall represent the whole of such J^igions..
legal sub-divisions or parish lots, and shall indicate the location of the

116 PLANS.

ProviBo. lands to be transferred ; Provided always, that this shall not be necessary
in the case of lots in a city, town, or village, the plan of which has been
registered.

See sec. 69 and 70 post.

Owner sub- 69« Any owner sub-dividing land for the purpose of selling the same
LT.Si.1 » '"ot-nt« BhaU deposit with the District-RegUtrar a plan in duplicate
deposit of such sub-division on a scale of not more than four chains to one inch,
provided that such plan shall exhibit distinctly all roads, streets, passages,
thoroughfares, squares or reserves appropriated or set apart for public
use, having the measurements marked thereon, and also all allotments
into which the said land is divided marked with distinct numbers or
letters, and such plan shall show distinctly a sufficient number of astro-
nomic bearings and measurements from which can be deduced the bear-
ings and dimensions of each and all the allotments into which said land
is divided, and shall also show the original section or lot lines according
to the survey thereof by the Dominion Government, or a sufficient num-
ber of said lines to show the location and connection of such sub-division
therewith, and shall be signed by the owner or his agent and certified as
accurate by a Provincial land surveyor — under oath in the form in
Schedule T hereto.

D. K. may (a) The District-Registrar may require the owner of any land desiring

TOQ tiire

new plan to deal with the same under the new system and which has heretofore

to be filed, ij^en sub-divided, or which is comprised within the limits of any city,

town or village, and the location of which in his opinion is not sufficiently

well or accurately defined upon any existing registered plan, to file a plan

of the same in accordance with the provisions of the foregoing section.

See sec. 68, sab-secs. 8 and 9 ante. Bat quare whether
it is not the foregoing aub-aection that is intended to be
referred to.

SCHEDULE T.

FORM OF SURVEYOR'S CERTIFICATE.

I, {name of iurveyor) of the {place of residence) ^ Provincial Land Sur-
veyor, make oath and say that I was present at and did personally
superintend the survey represented by this plan and that the survey and
plan are correct.

Sworn before me this ]

day of A.D. 18 \

J. P. or Com. in B. R., etc. )

VALUATIONS. 117

YO« All railway or other corporations shall hereafter deposit with the ^^^^^^f^
District -Begistrar, plans of their right of way, and station grounds, show- plan of
ing the area taken from each quarter section or parish lot as the case may ^|^^ ^'
be.

Provision as to these plans will be found in the General
Railway Acts, and in each company's special act of incor-
poration.

Tl. For the purpose of payment of any fees fixed by this Act or by 7^?^$^
tariff of the Lieutenant-Governor-in-Council, the value of land shall be ascer-
ascertained by the oath or solemn afiirmation of the applicant, owner or ^^^'
person acquiring land, (a) but if the District-Registrar be not satisfied as
to the correctness of the value so affirmed or sworn to, it shall be lawful
for him to require such applicant, owner, or person deriving such land by
transmission, to produce such other evidence as he may think necessary,
or a certificate of such value under the hand of a valuator, which certifi-
cate shall be received as conclusive evidence of such value for the purpose
aforesaid, {b)

Provided further, that lands in rural municipalities not sub-divided I'WidB in

rural
into lots or blocks shall be valued according to their value for agricultural manici-

purposes, including the improvements and buildings thereon. And aiiP*li*i68.
other lands shall be valued according to their actual value, including
inoiproyements and buildings thereon. Estates less than freehold shall be
▼alued the same as freehold estates, unless the District-Registrar, for
soflicient cause shown, directs otherwise.

(a) On first application the affidavit verifying the facts
therein set forth is usually sufficient. See second form
following sec. 40 ante,

(b) See tariff following sec. 21 ante as to fees, and sec. 140
post as to commissions payable on first applications and
npon transmissions by death or insolvency.

Reoistrations — Transfers.

7^» When land under the new system or any portion of such land, is Memoran-
intended to be transferred or any right-of-way or other easement is transfer
intended to be created or transferred, the registered owner may execute a ft^^uat*^
memorandum of transfer in the form contained in Schedule B to this contain.
Act, which memorandum shall, for description of the land intended to be
dealt with, refer to the certificate of title of such land, or shall give such
description as may be sufficient to identify the same, and shall contain
an accurate statement of the estate, interest, or easement intended to be

118 TRANSFERS.

transferred or created, and a memorandum of all leases, mortgages and
other encmnbranoes, to which the same may be subject ; and such trans-
fer, if it be endorsed on the instrument evidencing the title of the trans-
feror may be in the following form :

Form of I, the within named A. B., in consideration of

•endorsed dollars paid to me by G. D., transfer to said G. D. (here Btate the etisement,

^^ertdfi- ^^^^ ^ intereit intended to be transferred).

Dated this day of 18

Witness: I A.B.

As to land tax sale transfers see sec. 57 (a) antey which
must be registered within six months.

As to implied covenants, see sees. 80, 98, and 99 post,

A transfer is effective only upon registration (sec. 74
po8t)t but it confers upon the transferee a right to be regis-
tered as owner (sec. 81 post).

As to transmissions see 118 et aeq. post.

SGHEDULE B.

Memoranduu of Transfer.

I, A. B., being registered owner of an estate {state the nature of estate),
subject, however, to such encumbrances, liens, and interests as are notified
by memorandum underwritten (or endorsed hereon), in all that land con-
taining (as the case may be). (Here state rights of way, privileges, easements,
if any, intended to be conveyed along with the land, and if the land dealt
with contains all included in the original grant, refer thereto for description
of parcels and- diagrams, otherwise set forth the boundaries and accompany it
by a diagram), do hereby ; in consideration of the sum of % , paid

to me by E. F., the receipt of which sum I hereby acknowledge, transfer
to the said E.F. aU my estate and interest in the said piece of land.
[When a lesser estate, then describe such lesser estate).

In witness whereof, I have hereunto subscribed my nsime this
day of

(Signat%iare.)
£igned on the day above named \

by said A. B. in presence of L

G. A. ]

Memo : — Transfers may be by endorsement on the certi-
ficate of title ; (see Form sec. 72.) For forms of transfer of

TRANSFERS. 119

mortgages, encumbrances, leases, etc., see Schedules F, G
and H, (sec. 98). When the tranufer is made by a separate
instrument it must be in the foregoing form, or comply
substantially with it, i.e., it must purport to be made by the
" registered owner *' and must refer to encumbrances if any
«zist (see sec. 72). No seal need be affixed by the vendor.
The title passes on the sealing by the District Registrar.
See sec. 74, and note to sec. 96 post.

7S« If the memorandum of transfer purports to transfer the whole I' transfer
or part of the transferror's interest in the land mentioned in any certifi- or part of
cate of title, the transferror shall deliver up the certificate of title of said ^qqJ^?^'
land, and the District-Registrar shall, when registering the transfer, enter the certifl-
in the register and on the duplicate certificate of title a memorandum
canceUing the same, either wholly or partially, according as the memo-
randum of transfer purports to transfer the whole or part only of the
interest of the transferror in the land mentioned in such certificate of
title, and setting forth the particulars of the transfer.

Compare Rule 22, Sch. S, s. 26 ante.

Purchasers should assure themselves that there are no
u.ni)aid rates affecting the land and that it has not been
sold for taxes since the date of the vendor's certificate of
Title. See also Note (4) sec. 63 ante, and Rule 19, Sch. S,
sec. 26 ante. If there are unpaid arrears, he should
either obtain the amount from the vendor or require a
certificate that they have been discharged. He should
also arrange to have the certificate of title produced at
the proper Land Titles Office for the purpose of having
the transfer registered. He should also search the Gene-
ral Register as to caveats and general charges, and assure
himself that there are no rights subsisting under any
adverse possession of any part of the land ; and also that
there are no rights of way, rights to light, or other ease-
ments acquired by user, or subsisting over, or upon, or
affecting the land ; and where the possession is not adverse
the interest of any tenant of the land should be ascer-
tained.

120 EFFECT OF BKGI8TBATI0N.

Every in- 74. Exoept as hereinafter otherwise provided, every instmment pre-
except sented for registration under the new system may be in duplicate except
may^bein * transfer and shall, unless a Crown grant, Order-in-Council, instrument
duplicate, under the seal of any corporation, or certificate of judicial proceedings,
Affidavit of be attested by a witness who shall prove the execution thereof in the
manner required by said chapter Sixty of the Consolidated Statutes of
Manitoba and amendments thereto, and shall be registered in the order
Priority of time in which the same is presented for that purpose ; and instruments
to time of registered in respect of or affecting the same estate or interest, shall*
^^strar notwithstanding any express, implied, or constructive notice, be entitled
to priority according to the time of registration, and the District-Regis-
trar, upon registration thereof, shall file the same, or a duplicate thereof*
in his office ; and so soon as registered every instrument shall, for the
purposes of this Act, be deemed and be taken to be embodied in the
Begister as part and parcel thereof, and such instrument, when so con-
structively embodied, and stamped with the seal of the District- Registrar,
shall thereupon create, transfer, surrender or discharge, as the case may
be, the estate or interest therein mentioned in the lands mentioned in the
said instrument.

Compare sees. 69-72, chap. 7, of the Consolidated
Statutes of Manitoba.

Soundness of mind is necessary on the part of a witness,
and that he understands the nature of an oath and is not
a party to the instrument.

Compare sees. 58, 77, 78, 81, 99, and notes.

In the discretion of the Inspector old system forms may
be ordered to be registered and are then given effect by
sec. 77 post. Persons dealing with lands should satisfy
themselves that no objections will be taken to the form of
instruments before closing.

See sec 3 (12), as to meaning of the word " instrument.'*
Also Herbert v. Oibson, 6 M. L. R. 192.

Registration dates from the time of filing. RtUe 10,.
Sch. S. sec. 26 ante.

Instruments unfit for registration may be rejected by the
registrar and no instrument may be registered to affect
land under the new system except in the manner provided
by this Act. Instruments substantially in conformity with

WHAT MAY BE REGISTERRD. 121

the Act may be received, but in order to pass an estate it
must be executed and registered in accordance with the new
system. Under the statute instruments are inoperative as
affecting lands or interests in lands until registered, saving
however the rights of the parties to unregistered docu-
ments as between themselves. See sees. 77 and 81 postf
and notes under sec. 58 ante.

The affidavit may be according to the last form given
under sec. 40 ante.

See note to sec. 100 post as to essential form of discharges
of mortgages or encumbrances, for tiie purpose of enregis-
tration and release of the lands affected.

G. S. M. Gap. 60, sec. 35, Gonsolidated Statutes of Mani-
toba, as amended, provides as follows :

35. Ail deeds of lands sold under process issued from the court of Lands sold
Queen's Bench in Manitoba, and all certificates of sales of land for taxes cess to^e

given under the band of the treasurer of a municipality or other autho- registered
. _ , „ , .,-..,.. , - , , . , within SIX

nzed person, shall be registered withm six months after the sale of such months.

lands or after the date hereof, {See provisions as to the registration of tax

deeds in the Manitoba Municipal Acts)j otherwise the parties respectively 45 Vic, cap.

claiming under any of such sales shall not be deemed to have preserved '

their priority as against a purchaser in good faith, who may have regis- ^*P- ^

tered his deed prior to the registration of such deed from the sheriff,

treasurer, warden, or other oflicer ; provided that deeds of land hereto- 45 Vic, cap.

fore sold for school taxes shall be deemed to have preserved their priority

if the same be registered within six months after the expiration of the

time allowed by the law to redeem.

The provisions of the *' Lands Registration Act of Mani-
toba " as amended, relating to the proof of the execution of
instruments produced for registration under the *' old
system " are as follows : —

15. Grants from the crown may be registered by the production thereof Cap. 60.
to the registrar, with a true copy sworn to by any person who may have
compared the same with the original — such copy to be filed with the regis- How regis-
trar — and all other instruments, excepting wills, shall be registered by the
deposit of the original instrument, or by the deposit of a duplicate or
other original part thereof, with all the necessary affidavits. 30 V. c. 18,
8. 9.

122 ATTESTATION OF INSTRUMENTS.

Will to be 16. Every will shall be registered at full length by the production of the
at full original will, and the deposit of a copy thereof with an affidavit sworn to
length. |jy QjjQ ^f ^jjg witnesses to the will, proving the due execution thereof by

the testator, or by the production of probate or letters of administration
46 Vic, cap. with the will annexed, or an exemplification thereof, under the seal of any

court in this Province, or in Great Britian or Ireland, or in any British
Cap. 60. province, colony, or possession having jurisdiction therein, and by the

deposit of a copy of such probate, or letters of administration, with an

atiidavit verifying such copy.

When re- 17. In the case of an instrument other than a will, a subscribing wit>
swear to? '^^^^ ^ ^^^^ instrument, shall in an affidavit setting forth in full his

name, place of residence and addition or calling in full, swear to the

following facts:

(1) To the execution of the original and duplicate, if any there be;

(2) To the place of execution ;

(3) That he knew the parties to sucl- instrument, if such be the fact;
or that ho knew such one or more of them, according to the fact ;

(4) That he is a subscribing witness thereto.

Affidavit to 18. The said affidavit shall be made on the said instrument, or securely
ins^- ^ ^" attached thereto ; and such instrument and affidavit shall be copied at full
ment. length in the registry book.

Separate 19. When any instrument is executed by one or more grantors, but not
to be^Hworu ^^ ^'^ ^^ them in presence of the same witness or witnesses, or by one
*°tl5*'*' ^^ niore of the otlier parties thereto in presence of another witness or
otiier witnesses, then in such case the witness or one of the witnesses,
whether the same be so executed in the same or in di£ferent places, shall
make an affidavit, in accordance with the seventeenth section of this Act,
as to each separate and distinct execution of the instrument before the
same shall be registered.

Insufflcient (a) No registration under this Act of any instrument shall be deemed
of wltuess" ^^ adjudged void or defective by reason of the name, place of residence,
or clerical addition, occu|>ation, or calling of the subscribing witness thereto, not
to invali- being set forth in full, or being improperly or insufficiently given or des-
trationof <^i'i^^ i^^ ^^^^ affidavits mentioned in and required by section seventeen,

instru- nor by reason of any clerical error or omission of a merely formal or
ment.

technical character, in such affidavit, but, nevertheless, it shall continue

to be the duty of every registrar not to register any instrument except on

such proof as is required by this Act.

Betrospec- (h) The preceding sub-section shall apply retrospectively in all cases
oatiou!^ ^' except those in respect of which litigation has already been commenced.
45 Vic. cap. 13, sec. 3.

ATTB8TATI0N OF INSTRUMENTS. 128

See note re Farmers <t Conklin, and lienivick dt Berry-
man, page 126 infra.

30. Every affidavit made under the authority of this Act may be made Cap. 60.
before any of the following persons : Affidavit,

(1) If made in Manitoba, it may be before — whom
The registrar or deputy-registrar of the county in which the lands lie ; Manitoba.
Or before a jud^e of any of the superior or county courts ;

Or before a commissioner authorized by any of the courts to take
affidavits;
Or before any justice of the peace. Jj ^ec'^^

(2) If made in any of the other Provinces of the Dominion, it may be Cap. 60.

made before— 0*^«' ^°

vincea of

A judge, or prothonotary of any of the superior courts of law or the Do-
.. minion,

equity ;

Or before any notary public, certified under his official seal ;

(3) If made in Great Britain or Ireland, or any of the Provinces of Great Bri-
the Dominion, it may be made before — land.°' ^^

A judge of any of the superior courts of law or equity tlierein ;

Or before a judge of any of the county courts within his county ;

Or before the mayor or chief magistrate of any city or borough or
town corporate therein, and certified under the common seal of such city,
borough, or town corporate ;

Or before any notary public, certified under his official seal ;

Or before a commissioner for taking affidavits outside the Province to 45 Vic. cap.
be used therein ; • • •

(4) If made in any British colony or possession, it may be made Cap. GO.
. . British
*>«fore-- Colony.

A judge of a court of record ;

Or before the mayor of any city, borough or town corporate, and certi-
fied under the common seal of such city, borough or town ;
Or before any notary public, certified under his official seal ;

(5) If made in the British possessions in India — India.
Before any magistrate or collector, certified to have been such under

the band of the governor of such possession ;

(6.) If made in any foreign country, it may be made before — ^^'^^(SJ

The mayor of any city, borough or town corporate of such country,
and certified under the common seal of such city, borough, or town
corporate ;

Or before any consul or vice-consul of Her Majesty, resident therein ;

Or before a judge of a court of record, or a notary public, certified
under his official seal ;

124

ATTESTATION OF INSTBUBIENTS.

Notarial
and proth-
onotarial
copies of
instrument
executed in
Quebec to
be regis-
tered.

(7) If made in the North- West Territories of the Dominion of Canada,
or in the District of Keewatin, it may be made before —

A judge of any court or a police magistrate, or before a commissioner
authorized to take affidavits by any court, or before any notary pabUc»
certified under his official seal, or any justice of the peace; and all
instruments heretofore registered on any such affidavit are hereby
declared to have been duly registered.

21. Every notarial copy of any instrument executed in Quebec, the
original copy of which is filed in any notarial office according to the law
of Quebec, and which cannot therefore be produced in Manitoba, (a) and
every prothonotarial copy of any instrument executed in Quebec, shall
be received in lieu of and as prima facie evidence of the original instru-
ment, and may be registered and treated under the Act for all purposes
as if it were, in fact the original instrument, and such notarial or protho-
notarial copy shall be registered without any other or further proof of
the execution of the same, or of the original thereof ; any judgment of
any competent court which may be registered under the provisions of
this Act, shall be sufficiently proved to be authentic : provided that the
seal of such court be affixed thereto and that the same be signed by the
proper officer of any such court.

(a) In the Province of Qaebec the Notarial Profession
are an incorporated body enjoying extensive privileges with
respect to conveyancing, etc., and the custody of formal
instruments executed before them.

Witness to 22. Every subscribing witness shall be compellable, when necessary,
of*execu^° by order of a judge of the court of Queen's Bench or county court, to
tion on bo- make affidavit or proof of the execution of any instrument for the pur-
ered ezpen- pose of registration under this Act, and to do all other acts necessary for
^^' the same purpose, upon being paid or duly tendered his reasonable

expenses therefor.

23. The proof may be either by affidavit or by affirmation or declara-
tion, when by the law of the country where such proof is made, an
affirmation or declaration may be substituted for an affidavit, and the
registrar may receive such instruments so proved without any other or
further proof of their due execution.

24. None of the persons authorized to take affidavits by this Act shall
take any affidavit of the execution of any instrument, in case he is a
party to such instrument, and no one who is a party to the instrument
shall make such affidavit, provided that any instrument executed before
this Act takes effect may still be registered on the affidavit of a party
thereto, but in such affidavit the witness shall swear that the said instm-

Proof made
by affida-
vit, affir-
mation or
declara-
tion.

Name of
witness to
be in his
own hand-
writing.

ATTESTATION OF INSTRUMENTS. 125

ment was executed before the date at which this act takes effect ; nor Cap. 60.
shall any sach affidavit of the proof of any instrument executed here-
after, be taken from any witness, unless such witness has subscribed his
name in his own handwriting as such witness.

25. When the witnesses to any instrument are dead or are out of this When wit*
Province, any person who is or claims to be interested in the registration or out of
of the instrument, may make proof before the judge of any court in paJtv^n^'
Manitoba,'or before the Judge of any Superior Court of Becord in any terested
other Province of the Dominion or any portion of the British Empire of proof.

the execution of such instrument, and upon a certificate endorsed on such 46 and 47
instnunent and signed by such judge, that the judge is satisfied by the sec. 12^ ^ '
proof adduced of the due execution of the instrument, the registrar shall Cap. 60.
register such instrument and certificate.

Compare sec. 75 post.

26. The seal of any court affixed to any instrument in writing of itself, Seal of
and the seal of any corporation affixed to any such instrument, with the cord^or of^~
signature of the secretary presiding, or other authorized officer thereof £^^^^5**^®
and in case of certificates of tax sale the signature of the Treasurer of sufficient
the municipality or other officer^ authorized thereunto, shall be sufficient execution
evidence of the due execution of the instrument by the judge, registrar

clerk, treasurer of municipality or other authorized officer of the court Substi-
signing the same, or by the corporation respectively, for all purposes g^c. 26 of
respecting the registration thereof and no further evidence or verification ^'^P- 60.
of such execution shall be required for the purpose of a registration. 45
Yic, cap. 13, sec. 6.

27. When any instrument is registered, the registrar (a) shall deliver Begistrar
a certified copy or copies of such instrument, certified under his hand copies of
and seal of office, as may be required of him, and of all documents con- powers of
nected with or relating to the same ; in which certificate he shall declare aad Bubsti-
the time, place, and other particulars of registration as in other cases ^^j^f
under this Act; and he shall also declare that the copy which he so

delivers is a true copy of the instrument and of all the other documents
connected with or relating to the same of which they respectively purport
to be copies, and that the originals have been duly deposited in his office
according to the statute in that behalf.

(a) That is, the registrar of deeds under the " old
Bystem."

28. Every copy of an instrument so certified as aforesaid, may be Certified

. conv mav

registered in any other registry office (a) by deposit thereof, without pro- be regis-

daction of the original instrument, and without proof of any kind other ^J^^gjg.

than the production of the copy so certified as aforesaid. try office.

(a) That is, offices under the '' old system.'*

126

ATTESTATION OF IKSTBUMENT8.

Certified 29. Every oopy of original instrument, so certified as in the next pre-
attorney to ceding section mentioned, shall be received in all cases in place of the
as ^ma^ original as prinm facie evidence of the original instrument and of the doe

f€tcte evi- execution thereof,
dence.

Compare sec. 147 post.

By-law to 39. All by-laws hereafter to be passed by any municipal council, under
tered. ^ the authority of which any street, road, or highway shall be opened on
any private property, shall, before the same becomes effectual in law, be
duly registered in the registry office of the county where the land is
situate ; and for the purpose of registration a duplicate original of sach
by-law shall be made out certified under the hand of the clerk, and the
seal of the municipality, which may be registered without any further
proof.

The receipt and actual registration in fact of an instru-
ment without any affidavit does not bind parties with
implied notice under the Lands Registration Act of Mani-
toba ; (a) and under the wording of section 17 of that Act
it appears quite as necessary that the affidavit should set
forth the name, place of residence, and addition or calling
of the witness, as that there should be an affidavit. Where
the addition or calling of the subscribing witness is not set
forth in the affidavit of execution, its omission renders the
registration invalid, and parties would not be affected with
implied notice, (b) Under the new system no such irreg-
ularities can invalidate a registration, but any person
deprived of property on account of any such action of the
registrar, might recover compensation in an action against
the person through whose fraud or wrongful act he suffered
the loss, or against the District Registrar upon the Jiat of
the Attorney General ; (c) and in certain cases the assur-
ance fund might be made liable for damages, (d) In a
case where a document had been improperly received by
the Registrar General and placed on the register, it was

(a; Farmers and Traders Loan Co. v. Conklint 1 Man. L. R. 181.

(b) Renwick v. Berry man, 3 Man. L. R. 387.

ntREOULAB REGISTRATIONS. 127

held (Taylor, C.J.) that the Court had no power to order
its removal from the files upon an application in Cham-
bers, (e) hut in a case of fraud or error it would be lawful
for a Judge in Chambers to make an order or decree which
the registrar would carry into effect, ( f-) and there is noth-
ing in the Act to affect the jurisdiction of a competent
Court on the ground of fraud or over contracts respecting
lands, or over equitable interests therein when properly
seized of the case, (g)

In Re Scarry and Joyce it was held (Bain, J., April, 1889)
in Chambers that where an Administrator brings an action
and fails, costs can only be given against the Adminis-
trator personally, and not against the estate, and that in
an action not stated to have been brought as administrator,
which had been dismissed with costs, a certificate of the
judgment issued and filed in the Land Titles Office against
the estate of the deceased could not bind the lands where
the action was brought by the administrator after the death
of the intestate, and an order was made requiring the
Registrar General to remove the judgment from the
register as a charge upon the said lands.

75* When the witness to any instrument is dead or is out of this Proof of
Province, any person who is or claims to be interested in the registration ^hen wi^
of the instrument, may make proof before a Judge in Manitoba, or before ^^^ de^
the Judge of any Superior Court of Record in any other Province of the Provlnc©.
Dominion or any portion of the British Empire of the execution of such
instrument, and upon a certificate endorsed on such instrument and
signed by such Judge, that the Judge is satisfied by the proof adduced of
the due execntion of the instrument, the District-Registrar shaU register
such instrument and certificate.

Compare sec. 25 Land '* Begistration Act of Manitoba,"
recited above under sec. 74. The proofs should be made
in the Judge's presence.

{e) Oalt V. Kelly, 5 Man. L. R. 224.
(/) Sec. l2SpoMt.
(g) Sec. 129 poBt,

128 FORM OF INSTRUMENTS.

Manner of Y6« Whenever the memorial of any instrament has been entered in
^n. ' the Register Book, the Distriot-Kegistrar shall, except in the case of
transfer or other dealing endorsed npon any certificate or other instra-
ment as hereinafter provided, record the like memorial on the duplicate
certificate, or other instrument evidencing title to the land intended to
be dealt with or in any way affected, nnless the District-Registrar shall,
as hereinafter provided, dispense with the production of the same ; and
the District-Registrar shall endorse on every instrament so registered a
certificate of the day and hoar at which the instrament was entered in
the Register Book, and shall authenticate each sach certificate by signing
his name and affixing his seal thereto, and sach certificate shall be
received in all coarts of law as conclusive evidence that sach instrament
has been duly registered, without proof of the signature of the District-
Registrar.

See Bnles IS to 19, Sch. S, sec. 26 ante.

No instru- YY« The District-Registrar shall have power to reject any instrum^it

Bub^tan^^ appearing to be unfit for registration, and shall not register any instra-

tially in ment purporting to transfer or otherwise deal with or affect land onder

with Act to the new system, except in the manner herein provided for registration

tored^^^' i^i^^^i^ ^^^ ^^^ system, nor unless such instrument be in accordance wiUi

the provisions of this Act as applicable to the new system, but any

instrament substantially in conformity with the schedules to this Act, or

an instrument of a like nature shall be sufficient, and, except as in this

Section mentioned, no instrument shall be effectual to pass any interest

in land under the new system or to render such land liable as security

for the payment of money as against any bona fide transferee of such

land, unless such instrument be executed and registered in accordance

Proviso for ^th this Act as applicable to the new system : Provided, however, that

tion of in- where an instrument, in accordance with the forms in use or sufficient to

inoldrform. P^^^ ^^ estate or interest in lands under the old system, deals with

lands under the new system, the Inspector may, in his discretion in a

proper case, direct the District-Registrar to register it under the new

system, and when so registered it shall have the same effect as to the

To contain operative parts thereof, as, and shall by implication be held to contain

coronants. ^^^ ^^^^ covenants as are implied in, an instrument of a like nature

under the new system, and if it is a mortgage the mortgagee may, for the

fure orsale P^^^^^ ^^ foreclosure or sale under the mortgage, elect to proceed either

proceed- under the provisions of this Act or as if the land were subject to the old

BQch in- system, but in case he proceeds under the provisions of this Act, and the

Btrument. mortgage covers other land not under the new system, he must before

doing so bring all the land intended to be foreclosed or sold under the

new system.

See notes to sees. 68 and 74 ante, and sec. 95 post.

FORM OF INSTRUMENTS. 129

This section does not allow the Registrar the liberal
discretion as to registration of instruments which was per-
mitted by sec. 87 of the Act of 1885, but taken in connec-
tion with the special provisions of this Act relating to the
instruments most frequently produced for registration (a)
and the discretionary power given to the Inspector, it admits
any document sufficient under either system to pass an
estate or interest in lands, and makes it effective by adding
implied covenants and regulating remedial proceedings.

C. S. M. cap. 60, sec. 14, as amended is as follows :

14. The foUowing inatraments and proceedings may be registered, Cap. 60.
. Instra-

namely : mente that

(1) Grants from the orown, deeds, conveyances, assurances, bonds and gi£tered.
agreements for the sale or purchase of land, and aU other instruments,
including sheriffs, deeds of land sold by virtue of their office, certificates

or deeds for the sale of lands for taxes, or any instruments in anywise
affecting, in law, or in equity, lands in Manitoba ;

(2) Powers of attorney under which any deed, conveyance, assurance,
discharge of mortgage or other instrument has been or may be executed ;

(3) WiUs and devices of or affecting any lands ;

(4) Certificates of decrees of foreclosure, and all other decrees of pro- 46 and 47
ceeding of any Court of record in this Province affecting any title or boc. 4?^^* '
interest in lands ;

(5) Certificate of the filing or dismissal of any bill, answer, or the 46 and 47
taking of any proceedings in any courts of record in this Province, on eec/^^'
its equity side, where by any title to or interest in lands may be brought

in question ;

(6) Certificates of satisfaction of mortgages ;

(7) All other instruments in the first section of this Act mentioned,
and every other instrument affecting lands in Manitoba, in law or equity
or otherwise howsoever. 36 Y. c. 18, s. 17.

This clause is wide enough to admit of the registration of
any documents, even sub-leases on such an order made by
the Inspector under the discretionary power with which he
is invested.

(a) See sees. 46, 57, 69, 70, 72, 79, 81. 82, 80, 87-108, 110-117, 123, 130,
131, 133 and 142 j also notes to sec. lA4po9t,

KAN.L.A. 9

180 FORM OF IN8TRUMBNT8.

Compare 49 Vic. cap. 22, sees. 3-5. The Victorian Act
provides for the registration of Sheriff's deeds (sec. 106, and
Sch. 15), but here no such case is included unless covered
by this section. See also in same schedule the form of a
transfer under decree or order of the Court.

Under the Act of 1885, all lands patented between the
1st July, 1885 and 18th May, 1888 were without an applica-
tion or other action on the part of the owner subject to
the provisions of the new system, but it was held (Re Irish,
2 Man. L. B. 861) that in respect to such lands, convey*
ances in the statutory form mif^ht be treated as substan-
tially in conformity with the forms given in the Act. In
this case (uL 867) Mr. Justice Dubuc expressed the opinion
that instruments in the ordinary form executed before the
issue of a certificate of title should have the usual effect
they purport to have, but clearly they must be registered
in order to be operative where the lands have been the
subject of an application. Chief Justice Taylor said in
delivering his judgment, (id. 872} that in the case of lands
not brought under the Act, instruments according to its forms
derived no meaning, force or effect from its provisions, and
had no other effect than the words used would have as
ordinary words. Mr. Justice Killam held {id. 878) that
the application had the effect of bringing the lands under the
Actf and that after it was made no instrument could affect
the lands until duly registered under its provisions. See
notes to sec. 59 Territorial Act, po8t.

The Inspector can now by an order under this section set
many questions at rest by giving statutory effect to instru-
ments which might under ordinary circumstances occasion
still greater difficulties of construction than those noted in
Re Irish. His power extends tc instruments containing
no specific descriptions as well as to those wherein the lands
are described — and not the least of the difficulties are those

PRIORITY — EASEMENTS. 181

likely to follow the registration of instruments affecting
lands partly under the new and partly under the old
system.

79* Should two or more instninients executed by the same person and Where two*
purporting to affect the same estate or interest be at the same time pre- Btruments
eented to the District-Registrar for registration, he shall register that JJJJ^J^*
instrument which shall be presented by the person producing to him the tlxse.
certificate or other instrument evidencing title to such estate or interest.

The person acquiring an interest should insist upon the
certificate being produced for the registration of his instru-
ment.

7II« Whenever any easement or any incorporeal right in or over any land Begistoa^
under the new system is created for the purpose of being annexed to or easement,
used and enjoyed together with other land under the new system, the
District-Registrar shall also enter a memorial of the instrument creating
such easement or incorporeal right upon the folium of the Register Book,
constituted by the existing certificate of title of such other land.

This section relates to easements appurtenant, and does
not include ways in gross. Compare sec. 64 of the Victorian
Act, and the decision in Ex parte Johnston, 6 W. W. & A'B.
(L) 55. At page 240 of A'Becket's Transfer of Land Statute,
it is suggested that upon the acquisition of an easement, it
would be proper for the owner to surrender the certificate
of title and apply for a new one shewing the easement, as
in Victorian. No certificate can issue for an easement only.
Bules of the Victorian office noted at the page referred to ;
forms of clauses to create easements, id. p. 218 ; and form
of surrender of easement, id. p. 282.

90. In every instrument transferring an estate or interest in land under Implief
the new system, subject to mortgage or encumbrance, there shaU be fn traniSer
implied unless otherwise expressed, (a) the following covenant by the^'^^^
transferee, that is to say : That such transferee will pay the interest, mortgage,
annuity or rent charge secured by such mortgage or encumbrance, after
the rate and at the time specified in the instrument creating the same,
and wiU indemnify and keep harmless the transferror from and against the
principal sum or other moneys secured by such instrument, and from and

182 IMPLIED COVENANTS.

against all liability in respect of any of the covenants therein contained
or under this Act implied, on the part of transferror, {b)

Compare sees. 88, 89, 91, 96 and 99 post, also Victorian
Act, sees. 51, 58, 68, 78, 79, 90, 91 and 110. As to estop-
pel by covenants, sec. 46 & 47 Vic. cap. 28.

(a) Implied covenants may be modified by the terms of
the instrument and are to be construed as against parties
to the instrument severally not jointly. See sec. 144 post,

(b) See sec. 145 post, as to obligation of an owner to allow
the use of bis name in suits.

A similar covenant would be implied in equity on the
conveyance of any similar estate. {Waring v. Ward
7 Ves., 886, 887.)

In Australian Deposit and Mortgage Co.y. Lord,2Y. L.R.
(L) 81, the meaning of implied covenants is discussed, and
it was held that the object of the Act was not to create a
new liability, but to make the transferee liable to covenants
running with the land, and that the transferee did not
become personally liable.

The Act of 1885, by sec. 90, which has been omitted in
the present Statute provided an implied covenant on the
part of the mortgagor, that he would keep buildings and
improvements in repair, and that the mortgagee might
enter at all reasonable times to view and inspect the state
of repair.

Instra- 81. Every instrument signed by a proprietor or others claiming through

porthig^to ^' under him, purporting to pass an estate, or interest in land, for the regis-
pass estate tration of which provision is made by this Act, shall, until registered, be
on transfer deemed to confer upon the person intended to take under such instrument,
rel^stra- ^^ others claiming through or under him, a right or claim to the rostra-
tion. tion of such estate or interest ; and the District- Registrar, upon application

Power of made for that purpose by any person other than the person immediately
Sieprfr- claiming under or in respect of the instrument signed by a proprietor,
mises. may either reject such application altogether, or may direct the applicant
to be registered as proprietor of the land, estate or interest forthwith, or
at the expiration of some defined period of time, and may further direct

EQUITIES MAY BE ENFORCED. 18S

such other entries to be made in the Register Book and snch notices to be
Barred as may be, in his opinion, necessary ; Provided always, that on regis- Proyiao.
tering any such applicant the District- Registrar shall, so far as possible,
enter the like memorial of every instrament produced by the applicant
which may confer the right or claim aforesaid, as if such instrament had
been doly presented for registration in its proper order of time, and the
daplicate certificate of title shall be delivered up, and the like memorials,
or other entries made thereon ; and provided also, that no such registra-
tion shall be made if it woald interfere with the right of any person claim-
ing nnder any instrament previonsly registered ander the new system.

See South Australian " Torrens' Act " (1886) see. 268;
Queensland Beal Property Act of 1877, sec. 48. See also
sees. 74 and 77 ante.

Mr. Gawlor, who settled the South Australian Consolida-
ting Bill in 1886, states that this provision was first con-
tained in his amending Act in the year 1878, and was
rendered necessary on account of the Supreme Court
having decided that neither contracts nor equities could be
enforced against a person who had entered into or created
Buch contracts or equities, even although the land still
remained in his name as registered owner ; and as no
estate or interest passes except upon registration, power
was given to register as owner a person who derived title
through unregistered instruments, which ought to have
been filed in regular order, but which were never actually
so registered. For instance, without this provision, if the
registered owner executed a transfer, and the transferee
died before having had it placed on the register, his repre-
sentatives would take nothing, as the transferee could only
take the estate upon becoming its registered owner, and
therefore had nothing to transmit. See Jones' Torrens'
System, 279.

89. Upon the transfer of any land, estate or interest, ander the new Transfer to
system, to two or more pernons as joint owners to be held by them as owners as
trastees, it shall be lawful for the transferror to insert in the memorandum trustees,
of transfer or other instrument the words "no survivorship"; and the"NoBiirvi-
District- Registrar Hhall in such case include such words in the memorial ^^"'"P*

184 JOINT TENANCY.

of snch instrument to be entered by him in the Register Book as herein-
before directed ; and shall also enter the said words upon any certificate
of title issued to such joint owners pursuant to such memorandum of
transfer ; and any two or more persons registered as joint owners of any
land, estate or interest, under the new system, held by them as trustees,
may, by writing under their hand, authorize the District-Begistrar to
enter the words " no survivorship" upon the certificate of title, or other
instrument evidencing their title to such estate or interest, and also upon
the duplicate of such instrument in the Register Book or tiled in his
ofllice, and after such entry has been made and signed by the District-
Iiess num- Registrar in either such case as aforesaid, it shall not be lawful for any
•deal with less number of joint proprietors than the number then registered to
b^order of ^^*^^^'*^®'' ^^ otherwise deal with the said land, estate or interest, without
court or obtaining the sanction of the court or a judge thereof by an order on
J"^«*»- motion or petition.

Compare 46 and 47 Vic. cap. 26.

As to tenants in common, see" sec 62 ante.

The insertion of these words is a precaution for the pro-
tection of cestui que trusts, as it is probable tbat none bat
trustees will be required to hold lands under joint proprietor-
ship.

Oourt or S3. Before making any such order as aforesaid, the court or a judge

cause thereof shall, if it seems requisite, cause notice of intention so to do to be

be adver- P'operly advertised, {«) and shall appoint a period of time within which it
Used. shall be lawful for any person interested to show cause why such order

should not be issued ; and thereupon it shairbe lawful for the said court
or judge in such order to give directions for the transfer of such land,
estate or interest to any new owner or owners, solely or jointly, with or in
the place of any existing owner or owners, or to make such order in the
premises as the court or judge thinks just for the protection of the persons
beneficially interested in such land estate or interest, or in the proceeds
Effect of thereof ; and upon such order being deposited with the District-Registrar
he shall make such entries, and upon such entries being made, the executors
or adminstrators, or tlic curator {h) of intestate estates, as the case may
be, shall be deemed to be the registered owner or owners of such mortgage,
encumbrance or lease ; and the District-Registrar shall note the fact of
such registration by memorandum under his hand on the letters of admin-
istration, probate, or other instrument as aforesaid.

(a) Vid^ C. S. M. cap. 7 sec. 78.

(b) This office does not exist in Manitoba.

TRUSTS AND NOTICE. 185

84. Whenever in any grant or instrument under this Act, any mines Exception
or minerals are excepted from the grant or transfer, the District-Begistrar, ^n^!*^'
on issuing a certificate of title, shall therein insert the words so used in
the grant or instrument.

See sec. 68 (a) ante.

8A* Except in the case of fraud, no person contracting or dealing with, Except in
or taking or proposing to take a transfer from the registered owner of any ^ud per-
registered estate or interest, shall be required or in any manner concerned son dealing
to inquire into or ascertain the circumstances in or the consideration for teredown-
which such registered owner or any previous registered owner of the estate ©ff^ld b v
or interest, in question is or was registered, or to see to the application of trusts,
the purchase money, or of any part thereof, or shall be affected by notice, ^5S of*
direct, implied or constructive, of any trust or unregistered interest, any money,
rule of law or equity to the contrary notwithstanding ; and the knowledge Notice,
that any trust of unregistered interest is in existence shall not of itself be
imputed as fraud.

The words '* trust of " in the last line but one of this
section are evidently intended for the words ** trust or."

See sees. 64, 65, and notes ante, and the following sec.
86.

86* The District-Registrar shall not make any entry in the Register Notice of

of any notice of trusts, whether expressed, implied or constructive, but registered.

trusts may be declared by any instrument or deed, which instrument or

deed may include as well, land under the provisions of the new system as May de-

cl&re
lands which are not under the provisions thereof, provided that the des- trasts.

criptions of the several parcels of the land contained in such instrument

or deed shall sufficiently distinguish the land which is under the provisions

of the new system from the land which is not under the provisions there- Trust in-

of ; and a duplicate or an attested copy of such instrument may be deposi- d^^^ted

ted with the District-Registrar for safe custody and reference, but shall ^^ii^Sd'^**

not be registered,

See sec. 68 (5) ante, and sees. 117, 23, 129 post.

(Compare 49 Vic. cap. 18.

Most of the provisions as to express trusts apply equally
ix) implied trusts, but a person dealing with a trustee without
actual notice could not be deprived of any acquired rights
except on account of positive dishonesty ; it would not be

186 TBUSTBBS.

sufficient that he was merely censurably indifferent to the
rights of others, (a)

Trusts and contracts may be enforced against the regis-
tered owner as formerly, and he may be wholly or par-
tially deprived of his interests by a Court of Equity, or
compelled to apply the proceeds as justice may require, (b)

In Queensland the Boyal Commission of Inquiry respec-
ting the working of the Real Property Acts 1861-18779
made the following comments at page 14 of their report
presented to both houses of Parliament in 1879.

" 29. We think that the system of the Real Property
Acts with respect to property held by trustees is unsatis-
factory and dangerous. It not only does not impose, but
practically forbids the imposition of, any safeguards against
fraud. Two methods of dealing with this matter appear to
be practicable."

" (1) To provide for the lodging by a cestui que trust
of a perpetual caveat against any dealing with the land by
the trustee; (2) To state the trusts on the face of the
instrument of titles, and (3) To notify by memorandum
endorsed upon it the existence of trusts. The first of
these methods, which has very lately been adopted in New
South Wales, appears to us unsatisfactory. The second
and third are, no doubt, open to the objection that on any
dealing with land by a trustee, the Registrar-General or
Master of Titles would be charged with the duty of seeing
that the dealing was within his powers. This duty, how-
ever, he performs at present in every case in which land
which has been settled upon trust is sought to be brought
under the Act, and in many cases of transmission of title
by will, and we can see no reason why he should not

(a) Robertson V. Keith, 1 Vict. Reps. Eq. 11; Colonial Bank of AustraJeuia
y. Pie, 6 V. L. R. (Eq.) 186.

(6) MaddUon v. McCarthy, 6 Wy. W * A'B. Eq. 151.

TKU8TEE8. 187

exercise the same function in all cases of trusts. We think
that this change in the law, while it would effectually
prevent frauds by trustees, would not unduly increase the
labours of the Master of Titles beyond those which we
think ought to be performed by him under the existing law,
and we recommed that it be adopted."

Mr. Harding moved, that after the word " trusts," in
line 11, the following words be inserted : — "If the method
thirdly mentioned be adopted, it would be necessary to
repeal such parts of ' The Real Property Acts ' as allow
trustees to receive certificates of title, and deal with the land
as if they were its beneficial owners, and to provide that
all certificates of title issued to trustees should be distin-
guished by memorandum endorsed thereon (for example:
"The registered proprietor is a trustee. The trusts are
declared bv an instrument dated

made between and

and numbered
"), and that all persons dealing with
a proprietor holding a certificate so distinguished, should
be deemed to have notice of the contents of the instrument
declaring the trusts, and that the Registrar-General on
receiving for registration any instrument purporting to
deal with such land, should, before registering it, refer to
the instrument declaring the trust; and if such dealing
should not be authorized thereby, he should forthwith
enter up a caveat in the names of the beneficiaries forbid-
ding the registration of such instrument, which caveat
should have precedence of the application to register such
instrument."

87» When any land under the new system is intended to be leased or Form of
demised for a life or lives, or for any term of years exceeding one year, J^JJJ ^Jf
the owner shall execute a lease in the form contained in Schedule £ to ceeding
this Act, and every such instrument shall, for description of the land
intended to be dealt with, refer to the certificate of title of the land, or

138 LEASES.

shall give sach other description as may be neceBsary to identify such

S*dS^* land ; and a right for, or covenant by the lessee, to purchase the land

chase by therein described may be stipulated in such instrument, and in case the

lessee pays the purchase money stipulated, and otherwise observes his

covenants expressed and implied in such instrument, the lessor shall be

bound to execute a memorandum of transfer to such lessee of the said

land, and to perform all necessary acts, by this Act prescribed, for the

Proviw) as purpose of transferring land to the purchaser : Provided always, that no

onmbered. iease of land, subject to any prior registered mortgage or encumbrance,

shall be valid and binding against the mortgagee or encumbrancee, unless

such mortgagee or encumbrancee shall have consented to such lease,

prior to the same being registered.

See sees. 92, 93 and 94 post as to consent to surrender.

Provisions as to implied covenants are set out in sees.
88, 89 and 144 j^ost. See sec. 91 post as to short forms of
covenants. As to seal, see note to sec. 144 post.

Leases may be transferred, see sec. 98 post, with forms
following.

As to covenants operating as estoppel, compare 46 and
47 Vic. cap. 28.

The effect of a lease as an encumbrance mentioned in a
certificate of title is discussed by Molesworth, J., in the
case of Shaw v. Scott, 3 A. J. R. 16, 17.

Leases in statutory short form may be filed before the
issue of a certificate of title, vide sec. 95 post.

SCHEDULE E.

Form of Lease.

I, A. B., being registered as owner, subject, however, to such mortgages
and encumbrances as are notified by memorandum underwritten (or
etidor$ed thereon) of that piece of land {describe it) part of
Section Township Range containing

acres more or less (fiere state the rights of way,
privilerfeSf easements, if any, intended to be conveyed along with the land, and
if the land dealt with contains all included in the original grant or certificate
of title or lease, refer thereto for description and diagram, otherwise set forth
the boundaries by metes and bounds) do hereby lease to E. F., (here insert
description,) all the said lands, to be held by him, the said E. F., as tenant

LBA8E8. 189

for the space of years from {here tttate the date and term) at

the yearly rental of $ payable {here insert terms of payment of

rent,) subject to the ooveuants and powers implied {aUo set forth any
special covenants or modifications of implied covenants.)

I, E. F., {here insert description) do hereby accept this lease of the above
described lands, to be held by me as tenant and subject to the coiidition8«
restrictions, and covenants above set forth.

Dated at this day of, etc..

Signed by above-named A. B.,\
as lessor, and E. F., as lessee, | ( •S''//"''/"'-^' of Lessor. )

this day of /c- * /- r \

•^ I iSniimture of Leifsee.)

18 m the presence of
X. Y.

{Here insert memorandum of mortffuffes and encumbrances.)

Memo : — See note to Schedule B, 8ec. 72 ante. See
also Schedules P and G, sec. 98 post.

HHm In the memorandum of lease, unless a contrary intention appears Implied
therein, there shall be implied the following covenants by the lessee, that Jy^^^l^^J**
is to say :

(1) That he will pay the rent thereby reserved at the time therein Payment
mentioned, and all rates and taxes which may be payable in respect of ^ ^^° '
the demised property during the continuance of the lease.

(2) That he will at all times during the continuance of the said lease Bepaira.
keep, and at the termination thereof, yield up, the demised property in

good and tenantable repair, accidents and damage to buildings from fire,
lightning, storm and tempest, and reasonable wear and tear, excepted.

See sec. 91 post, as to short form covenants and note to
sec. 87 as to estoppel.

All implied covenants may be modified and are construed
as binding severally; see sec. 144 post, and note.

See as to repairs 47 Vic. cap. 29.

H9» In any memorandum of lease, unless a different intention appears Implied

3ower *
essor.

therein, there shall also be implied the following powers in the lessor, ^^r.
that is to say :

(1) That he may, by himself or his agents, enter upon the demised pro- Entry to
perty and view the state of repairs thereof, and may serve upon the of repain.

140 LEASES.

lessee, or leave at his last or usual place of abode, or upon the demised
premises, a notioe in writing of any defect, requiring him within a reason*
able time, to be therein mentioned to repair the same.

To take (2) That in case the rent or any part thereof is in arrear for the space

Wtoeaoh of two calendar months, or in case default shall be made in the fulfill-
of coven- jgitQjiX. of any covenant, whether expressed or implied, in such lease on
the part of the lessee, and shall be continued for the space of six calendar
months, or in case the repairs required by such notice as aforesaid shall
not have been completed within the time therein specified, such lessor
may enter upon and take possession of such demised premises.

See sees. 90, 91, 114 and 144 post, and notes.

A personal representative must be registered as owner
before proceeding to exercise any powers vested in the
lessor under this section.

As to repairs see 47 Vic. cap. 29, and 46 & 47 Vic. cap.
28, as to estoppel.

Duty of D. 90« In any such case the District-Registrar, upon proof to his satis-
of re-entry, faction of lawful re-entry and recovery of possession, by a lessor, shall
note the same by entry into {sic) the Register, and the estate of the lessee
in such land shall thereupon determine, but without releasing the lessee
from his liability in respect of the breach of any covenant in such lease
expressed or implied, and the District-Registrar shall cancel such lease
if delivered up to him for that purpose.

Compare provisions of ** The Overholding Tenants' Act,"
as to landlord regaining possession of leased premises

Gonditiona 91« Whenever in any lease or mortgage registered under the new
lease or ° system, any of the forms of words in column one of the form contained
°^^^SAge iQ Schedule N to this Act and distinguished by any number therein are
used, such lease or mortgage shall be taken to have the same effect and
be construed as if there had been inserted therein the form of words
contained in column two of the same Schedule and distinguished by the
same number ; and every such form shall be deemed a covenant by the
covenantor with the covenantees and his transferees, binding the former
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
expressed exceptions from or expressed qualifications thereof respectively,
and the like exceptions or qualifications shall be taken to be madie from,
or in the corresponding forms in the second column.

8H0BT FORM COVENANTS. 141

Compare C. S. M. cap. 61, Schedule 8 ; and 46 and 47
Yic. cap. 28, as to estoppel.

See sees. 80, 88 and 89 ante, and sec. 144 post. Quare,
if the last clause of sec. 144 post, as to implied covenants
being several, could influence the construction of the follow-
ing schedule ; and as to necessity of seals :

SCHEDULE N.

1. The said covenantor covenants 1. The covenantor, his execators,
with the said covenantee. administrators, or transferees, will

not, during the said term, transfer,

{Semhle: That he will not assign assign, or snh-let the premises

or sublet without leave.)* herehy leased, or any part thereof,

or otherwise hy any act or deed
procure the said premises, or any
part thereof, to be transferred or
sub-let, without the consent in
writing of the lessor or his trans-
ferees had and obtained.

2. That he will erect such fences 2. The covenantor, his executors,
as are mentioned in the said section, administrators, or transferees will,

during the continuance of the said
term, erect and put upon the boun-
daries of the said land, or on those
boundaries on which no substantial
fence now exists, a good and sub-
stantial fence.

3. That he will perform the con- 8. The covenantor, his executors,
ditions of the covenants as required, administrators, or transferees will,

at all times during the said term,
cultivate, use, and manage in a
proper husbandlike manner all
such parts of the land as are now
or shall hereafter with the consent
in writing of the said lessor or his
transferees, be broken up or con-
verted into tillage, and will not
impoverish or waste the same.

*NoTS : These words in italics are omitted in the Act.

99* Whenever any lease or demise which is required to be registered Surrender
under the new system is intended to be surrendered, and the surrender otberwiae

142

SURRENDERS, ASSIGNMENTS.

than bv
aon

pe:
III

law.

Proviso.

Assign-
ment of
lessee for
benefit of
creditors
where land
not subject
to encum-
brance.

thereof is e£Fected otherwise than through the operation of a surrender in
law, or than under the provisions of any law relating to bankrupt estates,
there shall be endorsed upon such lease or counterpart thereof the word
'^surrendered,** with the date of such surrender, and such endorsement
shall be signed by the lessee and the lessor as evidence of the acceptance
thereof, and shall be attested by a witness and the District-Registrar
shall thereupon enter in the Register a memorial recording the date of
such surrender, and shall likewise endorse upon the lease a memorandum
recording the fact of such entry having heen so made in the 1 Register, and
upon such entry having been so made, the estate or interest of the lessee
in such land shall vest in the lessor or in the person in whom, having
regard to intervening circumstances, if any, the said land would have
vested if no such lease had ever been executed, and the production of
such lease or counterpart bearing such endorsed memorandum, shall he
sufficient evidence that such lease has been so surrendered : Provided
that no lease subject to mortgage or encumbrance shall be surrendered
without the conseDt of the mortgagee or encumbrancee.

Compare sec. 87 ante, as to consent.

See sec. 81 ante, as to iniertnediate dealings.

98« Upon any assignment being made by any lessee for the benefit of
his creditors, the District-Registrar, unless the land he subject to a mort-
gage or encumbrance under the provisions of this Act, shall, upon the
application in writing of the lessor, accompanied by a statement in writ-
ing Higned by the assignee or trustee under such assignment, certifying
liis refusal to accept such lease, or shall, upon the order of the court on
the application of the lessor, enter in the Register a note of such refusal
or order, and such entry shall operate as a surrender of such lease.

See sec. 87 and notes ante.

Assign-
ment by
lessee for
benefit of
creditors
where land
subject to
encum-
brance.

94* Upon any assignment for the benefit of his creditors being made
by any lessee or owner of any land registered, where the land is subject
to mortgage or encumbrance, the District-Registrar shall, upon the
application in writing of the mortgagee or encumbrancee, accompanied
by a statement in writing signed by the assignee or trustee of such lessee
or owner, certifying his refusal to accept such lease, enter in the Register
Book a note of such application and refusal, and such entry shall vest
the interest of the lessee in such lease in such mortgagee or encumbrancee;
and if such mort^^agee or encumbrancee shall neglect or decline to make
such application as aforesaid, the District-Registrar upon application by
the lessor, and proof of such neglect or refusal, and of the matters afore>
said, shall enter in the Register Book notice of such neglect or refusal

MORTOAOE8 AND ENCUMBRANCES. 14S

of such assignee to accept such lease, and such entry shall operate as u
SQxrender of such lease.

See sec. 87 and notes ante.

MORTOAOES AND ENCUMBRANCES.

9/1* Any mortgage or other encumbrance created by any party right- EDcum-
folly in possession of lands prior to the issue of the certificate of title created
may be filed in the office of the District- Registrar, who shall ^^^o^'^e ^Jr^^^t*
upon the certificate of title and duplicate thereof a memorandum of may be
each encumbrance, and when so entered and endorsed the said mortgage
or encumbrance shall be as fully valid as if made subsequent to the issue
of the certificate of title ; and should more than one mortgage or encum-
brance be filed, they shall be registered in the order of time in which
they have been filed in the office.

See sees. 74, 76, 77 and 78 ante, and notes.

This is almost identical with sec. 139 of the Act revised
and consolidated with an extended application adding
greatly to its usefulness in facilitating dealings. Such
instruments may be in the statutory short forms, or in any
form sufficient to pass an estate or interest under the old
system, but, as the forms given in this Act are only oper-
ative under the statute, they cannot be used under this
section or have their statutory effect or meaning until the
title to the lands has been registered under the new system ;
but see sec. 81 ajite, as to their effect.

Apparently a sub-mortgage or an assignment of a mort-
gage could not be filed or registered under this section.

As to the effect of a lease as an encumbrance see note to
sec. 87 ante, \

9^m Whenever any land or estate, or interest in land, under the new Forms of
system is intended to be charged or made security in favor of any mort- SJdeScum-
gagee, the mortgagor shall execute a memorandum of mortgage in the brances.
form contained in Schedule to this Act, or to the like effect; and
whenever any such land is intended to be charged with or made security
for the payment of an annuity, rent charge or sum of money, in favor
of any encumbrancee, the encumbrancer shall execute a memorandum
of encumbrance in form contained in Schedule D to this Act, or to the i

144

MORTOAOE8 AND RNGUMBRANCEB.

Estate or
interoAt
must be
stated.

like effect ; and every anoh inetriiment shall contain an accurate state-
ment of the estate or interest intended to be^mortgaged or encnoabered,
and shall for description of the land intended to be dealt with, refer to
the certificate of title on which such estate or interest is held, or shall
give such other description as shall be necessary to identify snch land,
together with all mortgages or encnmbrances affecting the same.

No sealing appears to be necessary by the parties to
mortgages or encumbrances. As to limitations see 46 and
47 Vic. cap. 26, sees. 18-28, and compare interpretation of
the word " mortgage/' sec. 8 (4) ante. Quare^ whether the
** covenant^' would require a seal. See note to sec. 144 poit.

As to implied covenants on the part of a transferee of
mortgaged premises see sec. 80 ante ; See sees. 103-106
post as to powers of mortgagees ; and sec. 109 post as to
custody of mortgaged certificates of title.

Short form covenants are given in Sch. N, sec. 91 ante.

As to covenants operating an estoppel see 46 & 47
Vic. c. 28.

Leases upon mortgaged premises must be consented to
by the mortgagee or encumbrancer before registration,
(vide sec. 87 ante) and likewise before they can be surren-
dered (sees. 92, 98 and 94 ante). Mortgages may be
transferred wholly or partially, and one portion preferred
or deferred to the other (sec. 98), and the mortgagee's
rights and privileges pass to the transferee (sec. 99). As
to discharges, see sec. 100 post, and as to the equitable
jurisdiction of the Court, sees. 128 and 129 post.

A sub-mortgage executed conformably to the old system
can be registered under this Act, see sees. 77 and 81 ante ;
but the original mortgage should be produced for endorse-
ment with a memorial (sec. 76 ante).

A second mortgage may be in the same form as a first
mortgage, but it should refer to the first mortgage as an
encumbrance.

M0BTOAOE8 AND ENOUMBRANCES. 146

Eqaitable mortgages may be effected by depositing the
certificate of title where it has not been impounded under
sec. 109, and could be protected if necessary by caveat (sec.
180 post). London Chartered Bank v. Hayes, 2 V. R. (E.)
104 ; 2 A. J. R. 60 ; PatcheU v. Manmeli, 7 V. L. R. (E.)
6 ; and if the caveat is allowed to lapse, notice of the
equitable mortgage would not secure the equitable mortgagee
if the Registrar chooses to dispense with the production of
the certificate of title.

See notes to s^c. 68 (1) ante.

SCHEDULE C.
Memobandum of Mobtqaoe.

I, A. B., being registered as owner of an estate {here state nature of
interest) t sabject, however, to saoh encumbrances, liens and interests as
are by memorandom underwritten (or endorsed hereon , of that piece of
land (deacription) part of section township range-

containing acres, he the same more or less (here state right

of vfay, privilegeMf eatemenUt if any, intended to be conveyed along toith the
land, and if the land dealt with does contain all included in the original
grants, refer thereto for descriptions of parcels and diagrams, otherwise set
forth the boundaries and accompany it by a diagram) in consideration of the
aom of % lent to me by E. F. of (here insert description) the receipt

of which sum I do hereby acknowledge, covenant with the said E. F. : —

FirsUy, That I will pay to him, the said E. F., the above sum of %
on the day of

Secondly, That I will pay interest on the said sum at the rate of

on the I in the year, by equal payments on the

day of and on the

day of in every year.

Thirdly, (Here set forth special covenants, if any.) And for the better
secoring to the said E. F. the repayment, in manner aforesaid, of thb
principal sum and interest, I hereby mortgage to the said E. F. my
estate and interest in the land above described.

In witness whereof I have hereunto signed my name this

day of

Signed by the above named\
A. B. as mortgagor, this I

day ^
of in presence (Sionature of Mortgagor.)

of 6. H. /

MAM.L.A. 10

146 M0BTOAOE8 AND ENCUMBRANCES.

Memo. See note to Schedule "B," sec. 72. For forms of
transfer of mortgage see Schedules F and G» sec. 98 post

SCHEDULE D.

Memobandum of Encumbrancb.

I, A. B., being registered as owner of an estate {itate nature of ettate),
snbject, however, to snch mortgages and encumbrances as are notified by
memorandum underwritten (or endorsed hereon), of that piece of land
of {here state rights of way, privileqes, easements, if any, intended to be con-
veyed along with the land, and if the land dealt with contains all included in
the original grant or certificate of title, refer thereto for description of parcels
and diagrams, otherwise set forth the boundaries and accompany it by a dia-
gram), and desiring to render the said land available for the purpose of
securing to and for the benefit of C. D., of (description) the (the sum of
money, annuity or rent charge) hereinafter mentioned, do hereby encumber
the said land for the benefit of the said CD., with the (mm, annuity^ or
rent charge) of f , to be raised and paid at the times and in the

manner following, that is to say: (here state the times appointed for the
paymefit of the sum, annuity or rent charge intended to be secured, the interest,
if any, and the events on which such sum, annuity or rent charge shall become
and cease to be payable, also any special covenants or powers, and any modi-
fication of the powers or as remedies given to an encumbrance by this Act),
And subject as aforesaid, the said G. D. shaU be entitled to all powers and
remedies given to an encumbrancee by ** The Real Property Act of 1889."

In witness whereof I have hereunto\
signed my name this

day of , in presence

Signature of Encumbrancer,

(Insert memorandum of mortgages and encumbrances,)

subject to the conditions, restrictions, and covenants above set forth.

Dated this day of etc..

(Signature of Encumbrancer.)

(Signature of Encumbrancee,)

Signed by above named A. B.,'

as encumbrancer and, E. F.,

as encumbrancee, this

day
18 , in presence

cee, this

ence of X. Y. /

Memo. See note to Schedule B, sec. 72 ante ; see also
Schedules F and G, sec. 98 post.

MORTOikOES AND EN0UMBBANGE8. 147

9Y« Mortgage and encumbrance nnder the new systeni shall have Mortgage
effect as security, but shall not operate as a transfer of the land thereby brancenot

There is no " Grant " effected bv this instrument called
a *' Mortgage " it is actually a hypothec. Section 77 allows
instruments in the forms under the old system to be regis-
tered in the discretion of the inspector, but so far as its
operation affects lands under the new system, it is still
merely a hypothec, and the *' Grant " passes no estate.

No bill for foreclosure could be filed upon a mortgage in
the new form, as the legal title is not in the mortgagee, the
procedure in the Act alone can be resorted to in case of
default. Oreig v. Watson, 7 V. L. E. (E) 79 ; National
Bank of Australasia v. Hand in Hand, etc., Co'y, 4 App.
Cases, P. C. 891, 405.

98« Mortgages, encumbrances and leases may be transferred by a Transfer of
transfer executed in the form contained in Schedule G to this Act or by brances
a separate transfer. The transfer must be registered in the manner ^i^^ ^^ba^-
hereinbefore set forth, and transferees shall have priority according to the
date and time of registration. And any mortgagee may transfer a part Mortgagee
of the sum secured by the mortgage by a transfer executed in the form fer p&rt
of Schedule H to this Act or by a separate transfer (Schedule F) ; and
the part so transferred shall continue to be secured by the mortgage and
may be given priority over the remaining part or may be deferred or
may continue to rank equally with it under the security of the original
mortgage, as may be stated in the instrument of transfer; and the
District-Begistrar shall enter on the certificate of title a memorial of the
amount of the mortgage so transferred, the name of the transferee, and
how the sum so transferred is to rank, and shall notify the mortgagor of
the facts.

See 49 Vic. cap. 18, as to transfers by personal repre-
sentatives ; cap. 86, sec. 81, as to the seizure and sale of
mortgages under execution.

SCHEDULE F.
Form of Transfer of a Lease, Mortgage or Charge.

I, of being registered as the owner

of a lease (or mortgage or charge, as the case may he^ numbered

of (or upon) the land hereafter described subject to the enoum-

148 M0RTOAOE3 AND ENCUMBRANCES.

brances notified hereunder in consideration of the sum of

paid to me by C. D., of do hereby transfer

to the said C. D. all my estate and interest as sach registered owner in
all that piece of land being (or otherwise according to the

description in tlie lease, mortgage or charge) {or hereby transferred to the
said C. D. 9 of the mortgage or encnmbrance as the case

may be, dated together with all my rights, powers, title

and interest therein — and the sum so transferred shall be preferred or
deferred, or rank equally, as the case may be, to the remaining sum
secured by the mortgage.)

Signed by the said \

in the presence of '
Signed by the said CD.

in the presence of I

Encumbrances referred to.

Memo : See note to Schedule B, sec. 72 ante.

SCHEDULE G.

{Endorse numorandum of mortgages and encumbrances.)*

Form or Transfeb of Mobtoaoe, Encumbrance ob Lease bt Endobsb-

MENT.

I, the within mentioned C. D., in consideration of 9 this day

paid to me by X. Y., of , the receipt of which snm I do

hereby acknowledge, hereby transfer to him the mortgage [encombranoe
or lease, as the case may be] within written, together with all my rightsr
powers, title and interest therein.

In witness whereof, I have hereunto subscribed my name this

day of

CD., Transferror.

Accepted, X.Y., Transferee.

*Memo. Evidently the endorsements here referred to
are those which appear upon the certificate of title as
having priority over that transferred. Where none exist
these words may be omitted.

No witness appears to be required in this and the follow-
ing Schedule, although made necessary in transfers by
endorsement (secl^ante), and endorsed discharges (sec. 100
post). It is probable that in most cases attestation by a
witness as provided by section 74 ante, would be required

MORTGAGES AND ENCUMBRANOES. 149

before registration although it may be doubted whether
such an endorsement is an ** instrument*' as interpreted by
sec. 3 (12) ante.

SCHEDULE H.

Form of Transfer of part of Mortoaoe or Encumbrance by

Endorsement.

I, the wHhin named C. D., in consideration of $ this day

paid to me by X. Y., of , the receipt of which sum I do

hereby acknowledge, hereby transfer to him 9 of the mortgage

[or encnmbrance, as the case may be] within written, together with all my
rights, powers, title, and interest therein, and the sum so transferred
shall be preferred [or deferred or rank equally, as the case may he\ to the
remaining sum secured by the mortgage.

In witness whereof I have hereunto subscribed my name this
day of

CD., Transferror.
Accepted X. Y., Transferee.

Memo : No witness appears to be necessary. See note
at foot of Schedule G.

99* Upon the registration of any transfer of any mortgage, encum- Upon regia-
branoe or lease, the estate or interest of the transferror, as set forth in tate of
such instruments, with all rights, powers, and privileges thereto belong- '^^n^TOisB
ing or appertaining, shall pass to the transferee, and such transferee to trans-
shall thereupon become subject to and liable for all and every the same
requirements and liabilities to which he would have been subject and
liable if named in such instrument originally as mortgagee, encum-
brancee or lessee of such land, estate, or interest.

The transfer is effective only upon registration, see sec.
74 ante.

Upon transmission on death or insolvency the personal
representative or assignee would require to be registered as
owner. See sees. 114 and 115 post.

As to implied covenants, see sees. 80, 88, 89 and 91 ante.
Compare also sec. 89 of the Real Property Act of 1885,
which has been omitted in the present Act. It made pro-
vision as to suits by transferees.

160 DISCHAROEB.

lOO* Upon the produotion of any memoraadum of mortgage or
uon of die- «3 ^

charge. encamhranoe, having thereon an endorsement signed hy the mortgagee

or encumhranoee, and attested by a witness, (a) or of any separate

memorandum of discharge of mortgage, doly execated, discharging the

land from the whole or part of the principal sum or annaity, secored. or

discharging any part of the land comprised in snch instrnment from the

whole of snch principal som or annaity, the District- Registrar shall

make an entry in the Register, noting that sach mortgage or encom-

branoe is discharged wholly or partially or that part of the land ia

discharged as aforesaid, as the case may reqaire : and npon such entry

being so made, {i) the land or the estate or interest in, or the portion of

the land mentioned or referred to in such endorsement or memorandum

of discharge as aforesaid, shall cease to be subject to or liable for such

principal sum or annaity, or {at the case may be), for the part thereof

noted in such entry as discharged, (h)

(a) See sec. 74 ante, as to manner of attestation and
when it becomes effective by registration.

(h) See sees. 123 and 129 as to jurisdiction of the court
to order a discharge.

Compare 49 Vie. cap. 13, sees. 5-7, and cap. 22, tecs. 3-5.

The provisions of the Lands Registration Act of Mani-
toba as to discharges are as follows : —

Gap. flO. 36. When any registered mortgage shall have been satisfied, the

Registrar, on receiving a certificate executed by the mortgagee, or if the

mortgage has been assigned and such assignment registered, then executed

by such assignee, or by such other person as may be entitled by law to

receive the money and to discharge such mortgage, in the form D to this

Act, or to the like effect, executed in the presence of one witness, and

duly proven by the oath of the subscribing witness thereto, in the same

manner as herein provided for the proof of other instruments affecting

Certificate lands, shall register the same and every affidavit attached thereto or

charge of endorsed thereon, at full length in its proper order, in the Registry Book,

S°b?rSrin- *^*^ numbering it in like manner as other instruments are required to be

tered. registered and numbered, and also by writing in the margin of the

following effect : •' see certificate purporting to be discharge,

signed by , (naming tlie person who lias executed the sameY' and

** see registry number of such certificate, book (st/iting

the tamt according to the fact) *' and to which marginal entry the Registrar
or his deputy shall affix his name, and the same shall be deemed a
discharge of such mortgage ; and such certificate so registered shall be

DI8GHAB0E8. 161

▼alid and effeotnal in law as a release of such mortgage, and as a convey-
anoe to the mortgagor, his heirs, or assigns, or any person lawfully
claiming by, through or under him or them, of the original estate of the
mortgage.

FORM D.

{Sec. 36, cap, 60, C. S. M,)

To the Registrar of the county of

I, , of the , do certify that

hath satisfied all money due on, or to grow due on {or Jtath satitJUd the
gum of I mentioned in) a certain mortgage made by

of to which mortgage bears date the

day of 18 , and was registered in the

registry office for the county of on day of

18 , at minutes past o^dook of the

noon, in Liber as No. {here mention the day and

date of registration of each atsignment thereof, and the names of the parties,
or wiemtion that such mortgage has fiot been assigned, as the fact may be), and
that I am the person entitled by law to receive the money, and that sudh
mortgage, (or such sum of money as aforesaid, or such part of the lands as it
herein particularly described, that is to say : ) is therefore

discharged.

Witness my hand this day of 18

One *ritneu, \

See form of affidavit sec. 74 ante.

37. In case the mortgagee or any assignee of the mortgagee, desires to Partial re-
release or discharge part only of the lands contained in such mortgage, mortgage
or to release or discharge only part of the money specified in the mort- *2J^lf^^
gage, he may do so by deed or by a certificate to be made, executed,
proven and registered in the same manner as in cases where the whole

lands and mortgage are wholly released and discharged ; and such deed
or certificate shall contain as precise a description of the portion of lands
BO released or discharged as would be necessary to be contained in an
instrument of conveyance for registry under this Act, and also a precise
statement of the amount or particular sum or sums so released or
discharged.

38. Every certificate of payment or discharge of the mortgage, or of Certifloate
the conditions therein, or of the lands or of any part of the same, or of Qf^^^[!'^

16S

DI8CHABOES.

«haim
▼aU£

Payment
to Pro.
TreM. if no
person in
ihrovlnoeto
reoeive
money.

Beoeipt.

Entry of
diBcnarga

any part of the money, by the mortgagee, or his assignee, his heirs,
executors, administrators or assigns, or any one of them, at whatsoever
time given, and whether before or after the time limited by the mortgage
for payment or performance, shall be valid, if in conformity with this
Act to all intents and purposes whatsoever as herein mentioned.

Compare sec. 84 Beal Property Act, 1885, as to proof of
payment being sufficient to authorize discharge.

It does not now appear to be within the power of the
District-Registrar to enter a discharge of mortgage unless
all formalities are complied with, as to execution, attes-
tation, etc,, nor could the Inspector allow it to be received
unless it amounted to a " release " of the lands, as sec. 77
ante only authorizes him to use this discretion where the
instrument is sufficient to pass an estate.

101« If any mortgagor becomes entitled to pay off the mortgage
money, and the registered mortgagee is absent from this Province, and
there is no person authorized by registered power of attorney to give a
receipt to the mortgagor for the mortgage money after the date appointed
for the redemption of any mortgage, it shall be lawful for the Treasurer
of this Province to receive such mortgage money with all arrears of
interest then due thereon, in trust for the mortgagee or other person
entitled thereto, and thereupon the interest upon such mortgage shall
cease to run or accrue, and the District-Registrar shall, upon presenta-
tion of the receipt of the said Treasurer, for the amount of the said mort-
gage money and interest, and upon proof being made to his satisfaction
that such payment satisfies all moneys due and owing upon such mort-
gage, cause an entry to be made in the Register discharging such mort-
gage, stating the day and hour on which such entry is made and such
entry shall be a valid discharge for such mortgage and shall have the
same force and effect as is hereinbefore given to a like entry when made
upon the production of a discharge of mortgage, and the District-Regis-
trar shall endorse on the certificate of title or other instrument as afore-
said, (a) and also on the memorandum of mortgage, whenever those
instruments shall be brought to him for that purpose, the several partic-
ulars hereinbefore directed to be endorsed upon each of such instruments
respectively. Such moneys so paid to the Provincial Treasurer shall be
paid over by him to the person or persons entitled thereto (6) on applica-
tion.

(a) Sec. 109 post, provides for the impounding of the
certificate to have it available for such endorsements.

DISCHARGES. 168

(6) To the mortgagee or the transferee or personal
representative of the mortgagee (s. 99).

109* Upon proof of the death (a) of the annuitant, {b) or of the Death of
occurrence of the event or circumstance upon which, in accordance with or ceua"
the provisions of any memorandum of encumbrance, the annuity or sum ^^^ o'
of money thereby secured shall cease to be payable, and upon proof that brance.
all arrears of the said annuity and interest or money have been paid,
satisfied or discharged, the District -Registrar shall make an entry in the Entry in
Begister, noting that such annuity or sum of money is satisfied and
discharged, and shall cancel such instrument ; and upon such entry being
made, the land shall cease to be subject to or liable for such annuity or
sum of money, and the District-Registrar shall, in any or either such P* R'b duty
case (ftic) as aforesaid endorse on the certificate of title, or other instrument mises.
evidencing the title of the mortgagor or encumbrancer to the land mort-
gaged or encumbered a memorandum of the date on which such entry as
aforesaid was made by him in the Register, whenever such certificate of
title, or other instrument is presented to him for that purpose.

(a) In this case the lands are released by the fact of the
death of the annuitant or the occurrence of the event or
circumstance, and registration is only for the purpose of
clearing the Begister, after the lands have ceased to be
bound.

(b) Annuitant is the term used in Victoria when refer-
ring to an encumbrancee.

103* In case default be made in the payment of the prmcipal sum, Rights of
interest, annuity or rent charge, {a) or any part thereof secured by or in etc.^^case
the observance of any covenant expressevl in any mortgagee or encum- °' ^®'*°^**
brance registered under the new system, or that is herein declared to be
implied in such instrument, (a) and such default be continued for the
space of one calendar month, or for such longer period of time as may
therein for that purpose be expressly limited, (b) the mortgagee or encum-
brancee may forthwith, after giving written notice, (c) a copy of which
shall be filed in the Land Titles Office, {d) to the said mortgagor or
encumbrancer, his executors, administrators or assigns, and every other
person appearing at the time of filing such notice in the Land Titles
Office to have any estate, right or interest in or to the lands subsequent
to such mortgage or encumbrance, of his intention in that behalf, with-
out any further consent or concurrence, upon his or their part enter into
possession of the lands and receive and take the rents, issues and profits
thereof, and whether in or out of possession thereof to make any lease

142

SURRENDERS, ASSIGNMENTS.

than b:
ope;
or law.

tio

raQon

Proviso.

AsfligD-
ment of
leasee for
benefit of
creditors
where land
not subject
to encum-
brance.

thereof is effected otherwise than through the operation of a sorrender in
law, or than under the provisions of any law relating to bankrupt estates,
there shall be endorsed upon such lease or counterpart thereof the word
"surrendered/* with the date of such surrender, and such endorsement
shall be signed by the lessee and the lessor as evidence of the acceptance
thereof, and shall be attested by a witness and the District-Registrar
shall thereupon enter in the Register a memorial recording the date of
such surrender, and shall likewise endorse upon the lease a memorandum
recording the fact of such entry having been so made in the Hegister, and
upon such entry having been so made, the estate or interest of the lessee
in such land shall vest in the lessor or in the person in whom, having
regard to intervening circumstances, if any, the said land would have
vested if no such lease had ever been executed, and the production of
such lease or counterpart bearing such endorsed memorandum, shall be
sufficient evidence that such lease has been so surrendered : Provided
that no lease subject to mortgage or encumbrance shall be surrendered
without the consent of the mortgagee or encumbrancee.

Compare sec. 87 ante, as to consent.

See sec. 81 ante, as to intermediate dealings.

98« Upon any assignment being made by any lessee for the benefit of
his creditors, the District-Registrar, unless the land be subject to a mort-
gage or encumbrance under the provisions of this Act, shall, upon the
application in writing of the lessor, accompanied by a statement in writ-
ing signed by tlie assignee or trustee under such assignment, certifying
his refusal to accept such lease, or shall, upon the order of the court on
the application of the lessor, enter in the Register a note of such refusal
or order, and such entry sliall operate as a surrender of such lease.

See sec. 87 and notes ante.

Assign-
ment by
lesfiee for
benefit of
creditors
where land
subject to
encum-
brance.

94. Upon any assignment for the benefit of his creditors being made
by any lessee or owner of any land registered, where the land is subject
to mortgage or encumbrance, the District-Registrar shall, upon the
application in writing of the mortgagee or encumbrancee, accompanied
by a statement in writing signed by the assignee or tmstc^e of such lessee
or owner, certifying his refusal to accept such lease, enter in the Register
Book a note of such application and refusal, and such entry shall vest
the interest of the lessee in such lease in such mortgagee or encumbrancee;
and if such mortgagee or encumbrancee shall neglect or decline to make
such application as aforesaid, the District-Registrar upon application by
the lessor, and proof of such neglect or refusal, and of the matters afore-
said, shall enter in the Register Book notice of such neglect or refusal

M0RTGA0E8 AND ENCUMBRANCES. 143

of SQch assignee to accept such lease, and such entry shall operate as u
sairender of snch lease.

See sec. 87 and notes ante.

MORTOAOES AND ENCUMBRANCES.

94* Any mortgage or other encumbrance created by any party right- Encuzn-
fally in possession of lands prior to the issue of the certificate of title created
may be filed in the office of the District-Registrar, who shall endorse ^'jJSj**' *^
upon the certificate of title and duplicate thereof a memorandum of may be
Bucb encumbrance, and when so entered and endorsed the said mortgage ^ '
or encumbrance shall be as fuily valid as if made subsequent to the issue
of the certificate of title ; and should more than one mortgage or encum-
brance be filed, they shall be registered in the order of time in which
they have been filed in the office.

See sees. 74, 7fi, 77 and 78 ante, and notes.

This is almost identical with sec. 189 of the Act revised
and consolidated with an extended application adding
greatly to its usefulness in facilitating dealings. Such
instruments may be in the statutory short forms, or in any
form sufficient to pass an estate or interest under the old
system, but, as the forms given in this Act are only oper-
ative under the statute, they cannot be used under this
section or have their statutory effect or meaning until the
title to the lands has been registered under the new bystein ;
but see sec. 81 atite, as to their effect.

Apparently a sub-mortgage or an assignment of a mort-
gage could not be filed or registered under this section.

As to the effect of a lease as an encumbrance see note to
sec. 87 ante.

96* Whenever any land or estate, or interest in land, under the new Forms of
system is intended to be charged or made security in favor of any mort- Siden^m-
gagee, the mortgagor shall execute a memorandum of mortgage in the braocee.
form contained in Schedule C to this Act, or to the like effect; and
whenever any such land is intended to be charged with or made security
for the payment of an annuity, rent charge or sum of money, in favor
of any encumbrancee, the encumbrancer shall execute a memorandum
of encumbrance in form contained in Schedule D to this Act, or to the

156 POW£R OF BALE.

hundred and for securing the repayment of

and interest thereon, as therein mentioned, on the lands above described
default having been made in payment of the secured by

said mortgage (or in the observance of the covemtnte therein at the cafe may
he) for the space of over one calendar month.

And take notice, that unless payment of the said mortgage money and
interest be made {or tuch default he remedied) within calendar

month from the time of your being served herewith, the said

{mortgagee^ encambrancee^ or, as the case may be) will proceed
with or without any consent or concurrence on^ your part, or of any
person claiming through or under you subsequently to such mortgage,
and without any further notice to you to enter into possession of the said
mortgaged lands and premises, and to receive and take the rents, issues
and profits thereof ; and whether in or out of possession of the same, to
make any lease or leases of the same, as the said

shall see fit, and that all remedies competent
will be resorted to unless such default be remedied.

And after such default in payment continuing for the further space of
one month as aforesaid the said (mortgagee^ encumbraneee, or

as tJie case may be) will proceed to sell the land so mortgaged or encum-
bered or any part thereof and all the estate or interest therein of the
mortgagor in such manner and upon such terms as may think

fit and pursuant to the provisions of the Real Property Act of 1889.

And take notice, that in the event of a sale not realizing sufficient to
satisfy the moneys secured by said mortgage together with the expenses
occasioned by such sale, then the said (mortgagee, encumbrancee, or as the
case may be) will after such default shall have continued for six months
after the time mentioned in said mortgage for payment, make an appli-
cation in writing to the District- Registrar for an order for foreclosure.

Dated at this day of A.D. 18

Mortgagee
(or as the case may be).

Power to 104. After such default in payment or in the observance of covenants
continuing for the further space of one calendar month from the date of
service of such notice, such mortgagee or incumbrancee (a) is hereby
authorized and empowered to sell the land so mortgaged or encumbered,
or any part thereof, and all the estate or interest therein of the
mortgagor or encumbrancer and of the other interested persons referred
to in the last preceding section, and either altogether, or in lots, by
public auction or by private contract or both such modes of sale (b)
and subject to such conditions as he may think fit, (c) without being liable
for any losses occasioned thereby ; (d) and to make and execute all snch

POWER OF SALE. 157

instraments as shall be necessary for the sale or enjoyment thereof,
and all of which sales, contracts, matters and things hereby authorized
shall be as valid and effectual as if the mortga^^or or encumbrancer
and other persons as aforesaid had made, done or executed the
same ; (e) and the receipt in writing; of the mortgagee or encumbrancee Beoaipt for
shall be a sufficient discharge to the purchaser of such land, estate or Sumey.
interest, or of any portion thereof, for so much of his purchase money as
may be thereby expressed to be received ; and no such purchaser shall Purchaser
be answerable for the loss, misapplication or non-application, or be obliged to see to^
to see to the application of the purchase money by him paid, nor shall application
he be obliged to inquire as to the fact of any default or notice having chase
been made or given as aforesaid, or how the purchase money to arise from AppUca-
the sale of any such land, estate or interest shall be applied ; (f) but such ^on there-
parchase money shall be applied : firstly, in payment of the expenses occa-
sioned by such sale ; secondly, in payment of the moneys which may then
be due or owing to the mortgagee or encumbrancee ; thirdly, in payment
of subsequent mortgages or encumbrances, if any, in the order of their
priority ; and the surplus, if any, shall be paid to the mortgagor or encum-
brancer, as the case may be. {g)

(a) Tbe notice served as required by the preceding
section may also be given by the registered personal repre-
sentative, assignee or transferee; see notes to sec. 103 ante.

(b) A sale under this power is bad if the land be sold
together with other lands in mortgage from the same
mortgagor under the old system by one contract and at one
price. Boss v. The Victorian Permanent Building Society,
8V.L. h. (E.) 254 ; and semble on a sale by one mortgagee
of several mortgages from one mortgagor, all under the
Act separate and distinct sales would also be necessary.

See sec. 77 ante as to proceedings on informal instru-
ments.

It seems necessary in most cases to sell by public
auction in order to have the market value established by a
sale or failure to sell for an upset price after sufiScient
notice and publication. It must also be borne in mind
that it is a condition precedent to foreclosure in sec. 106
post, that tbe land be put up for sale by a licensed auctioneer
at public auction.

158 POWBR OF SALE.

(d) The mortgagee or encumbrancee selling under power
of sale is liable to all the obligations as to prudent admin-

■

istration imposed on executors and trustees. Latch v. Fur-
long, 12 Gr. 303.

{e) The form of transfer ** Schedule B",(sec. 72) maybe
varied to suit the circumstances. It should recite that the
sale is made by the mortgagee under power of sale and
omit the words "registered owner.'*

In Victoria the Office of Titles before registering a trans-
fer under power of sale requires proof of demand, where
the money is payable on demand, of default having
happened and continued as recommended in Ex parte
HassalU c. 10, S. C. R. (L) 292, 299, by the Supreme Court
of New South Wales; of service of notice, as approved by
the Judicial Committee of the Privv Council, in Re National
Bank of Australasia v. Hand in Hand Co., App. Cases 891.

The happening and continuance of default should be
proved by the affidavit or statutory declaration of the
mortgagee or of some person having knowledge of the
facts, stating his means of knowledge.

Where notice has been given by letter, the post office
registration receipt ought to be produced.

All these proofs could be dispensed with on production
of a written waiver of notice or consent from the mortgagor
or owner of the land to the transfer. Such waiver or con-
sent may be given by the official assignee or personal repre-
sentative of the mortgagor or owner for the time being
when registered as proprietor.

(/) See sees. 64 and 85 ante, and sees. 138 and 143 post.

(g) Compare sees. 86 and 86 Victorian Land Transfer
Statute, and sec. 67, Queensla^nd Act.

A purchaser at a mortgage sale under powers should
ascertain tbe interest of any tenant in possession of the

F0RECL08UBE. 159

land, for the mortgagor might, after mortgaging, have
created a tenancy in the land not binding on the mortgagee,
(see sec. 87 ante) but diminishing its annual value ; and
the effect of the new certificate may be to legalize the
tenancy as against the purchaser. In such a case the
mortgagee should be required to obtain the actual occupa-
tion, or to compel the tenant to accept a holding beneficial
to the purchaser. Compare Colonial Bank v. Roach, 1 V. R.
(L) 165 ; 1 A. J. R. 136.

10«1* Upon the registratiun of any memorandum or instmment of Kegistra-
transfer executed by a mortgagee or encumbrancee, for the parpose of es^te in^
such sale, as aforesaid, the estate or interest of the mortgagor or encnm- purchaser,
brancer and aU subsequent encumbrances therein described as to be con-
veyed, shall pass to and vest in the purchaser, freed and discharged from
all liability on account of such mortgage or encumbrance, or of any mort-
gage or encumbrance registered subsequent thereto, and the purchaser
shall be entitled to receive a certificate for the same.

As to Form see note {e), sec. 104 ante.

No interest passes to the purchaser until registration.
See sees. 74 and 77 and notes ante; sec. 144 post.

Compare sees. 42, 53, 58, 87 and 106, Victorian Land
Transfer Statute. See also National Bank of Australasia
V. Hand in Hand, etc., 4 App. Cases 391, 407; London
Chartered Bank of Australasia v. Hayes, 2 V. R. (E) 104 ;
2 A. J. R. 60 ; Kickham v. The Queen, 8 V. L. R. (E) 1,250.

106« Whenever default has been made in payment of the principal or Foreclo-
interest moneys secured by a mortgage registered under the new system, JJJrtcace
and such default shall be continued for six months after the time for pay-
ment mentioned in the mortgage, the mortgagee or his transferee may
make application in writing to the District-Registrar for an order for
foreclosure and such application shall state that such default has been
made and has continued for the period aforesaid, and that the land mort-
gaged has been offered for sale by public auction by a licensed auctioneer
after a notice of sale served as hereinbefore provided, and that the amount
of the highest bid at such sale was not sufficient to satisfy the moneys
Becored by such mortgage together with the expenses occasioned by such
sale, and that saoh notice or a subsequent notice served upon the same

160 FORECLOSURE.

persons declared the intention of the mortgagee or his transferee to make
an application for foreclosure in case snch sale proved abortive, and snch
application shall be accompanied by a statutory declaration or affidavit
of the auctioneer by whom snch land was put up for sale and snch other
proof of the matters stated by the applicant as the District-Registrar may
require.

Proviso for Provided that unless the District-Registrar shall see fit to otherwise

soryico of

notice. order, such notice shall be served personally on such mortgagor or encum-
brancer and other persons interested as aforesaid, but in case he or they
cannot, after due diligence, be found, the District-Registrar may direct
service of such notice by being left on the mortgaged lands, or by the same
being sent through the post office by a registered letter directed to him or
them at his or their last known address or in such other manner as the
District-Registrar may direct.

See notes and form of notice, sees. 108, 104 ante. This
procedure is permitted only in the case of mortgages and
does not apply to encumbrances, but see next section.

The application in writing necessary under this sectiion
may be in the following form :

Form of Application for Foreclosure Order.

The Real Fbopebtt Act of 1889.

Manitoba, \ In re Application No.

Land Titles District op L , ,, ^, «. ^.

and Mortgage Kg. affecting

To Wit : j

(Here deterihe lands.)

To The District Registrar, —

The Mortgagee hereby applies for an order of foreclosnre under the
above Act against {describe mortgagor) of all his estate, right, title, inter-
est and equity of redemption in said lands and declares :

1. That default has been made in the payment of the moneys eecnred
by the said mortgage and that snch default has continued for more than
six months after the time of payment mentioned therein.

2. That after notices duly given as provided by said Act the said
mortgaged lands were on the day of A.D. 18
offered for sale at public auction by a licensed auctioneer at the time and
place mentioned in such notices and the highest bid made at such sale
was not sufficient to satisfy the moneys secured by such mortgage
together with the expenses occasioned by such sale.

FORECLOSURE. 161

3. That notice of the mortgagee's intention to apply for foreclosure
in case the sale provc^d abortive, has been served on the mortgagor and
all other persons appearing to have any estate, right or interest, in the
«aid lands subsequent to said mortgage.

Dated at this day of A.D. 18

Signature of mortgagee

Hit Solicitor,
{Here follow affidavitt as to fUnets of auctioneer, fairness of sale and truth
of facts alleged unth schedules, etc,, annexed).

The auctioneer is required to make declaration as to the sale.

107« Upon such application the District-Registrar may, if he con- D. B. may
fiiders it proper, cause notice to be published once in each of three successive tkse^f"^
weeks in such newspaper or newspapars as the District-Registrar may P^*£***°?^
direct offering such land for private sale, and shall appoint a time not liBhea.
less than one month from the date of the first of such advertisements, or
in case there is no advertisement not less than one month from the date
of such application (a) upon or after which the District-Begistrar may
issue to such applicant an order for foreclosure {b) unless in the interval a
sufficient amount has been obtained by the sale of such lands or paid by
or on behalf of such mortgagor or encumbrancer or other person as afore-
said, to satisfy the principal and interest moneys secured, and all expenses
occasioned by such sale and proceedings ; and every such order for fore- Order of
closure under the hand of the District-Begistrar when entered (c) in the g^^^^
Begiater Book shall have the effect of vesting in the mortgagee or his
transferee the land mentioned in such order, free from all right and equity
of redemption on the part of the mortgagor or encumbrancer or of any
person claiming through or under him subsequently to the mortgage or
encumbrance, and such mortgagee, encumbrancee or transferee shall upon
such entry being made (c) be deemed a transferee of the land, and become
the proprietor thereof, and be entitled to receive a certificate of title to
the same, (d)

(a) The application in writing required by the foregoing
section should be filed as early as may be, in order to allow
the necessary time to elapse before the foreclosure order
can be made.

(6) The order may be as follows :

Form of Fobeclosube Order.

{Formal part same as in appUeation for foreclosure).

Upon the application of A. B., the mortgagee, {or as the ease may he) of
said lands nnder the said mortgage by 0. D. the mortgagor therein, to the
1CAM.L.A. 11

162 F0BEGL08UBE.

said mortgagee {or tuthe ease may be) and upon reading the affidavits and
papers filed ; and whereas it appears to me that the proceedings required
by the said Act have been regularly and properly taken, and that default
has been made in payment of the moneys secured by the said mortgage
and that such default has continued for a period of more than six months
after the time for payment mentioned in the mortgage and still con-
tinues, and that the moneys secured by said mortgage and the expenses
occasioned by such default are all still due, owing and unpaid.

It is hebebt obdebed under the provisions of said Act that the said
C. D. do stand absolutely debarred and foreclosed from all estate, right,
title and equity of redemption in and to the said above described lands
and premises.

Issued under my hand and seal of office at the Land Titles Office at>
this day of A.D. 18

District-Regiiirar.

[Seal.]

(c) The foreclosure order, like any other instrument of
transfer, has its operative efiTect suspended until the entry
of the foreclosure and the registration of the mortgagee,
etc., as owner.

(d) See Rule 17, Sch. 8, sec. 26 ante. The certificate of
title if mortgaged since 5th of March, 1889, would be
impounded in the proper Land Titles Office under sec. 109
post; if not it must either: be produced or its production
dispensed with by the District- Registrar, as provided by
sec. 68 (6) ante.

No procedure is provided in this Act by which an encum-
brancee can obtain such an order of foreclosure. See note
to sec. 106 ante.

In Queensland the Amending Act of 1877, (sec. 19) pro-
vided that in the case of the purchase of lands charged by
a mortgage lien or encumbrance by the person entitled to
such charge, he should be entitled to a certificate of title
discharged therefrom. Under this Act the charge would
ipso facto be merged and extinguished, unless an intention
to prevent a merger has been expressed in the instrument

CERTIFICATES OF CHARGES. 163

of transfer or may be implied from the circumstances of
the case.

106» For the pnrpose of this Act the District-Begistrar, Examiner of Lis Ptndens
Titles, or other officers of the Land Titles Office, shall not have notice of > ^ morT^
or be bound by, any proceedings taken by any mortgagee or encnmbrancee gageO'
under his mortgage secnrity or encumbrance for the purpose of foreclosing,
selling or otherwise realizing upon his said security or encumbrance
unless such mortgagee or encnmbrancee shall have filed aLu Pendens or in
case of proceedings under Power of Sale a notice of such proceedings in
the Land Titles Office for the District in which the land is situated.

See sees. 108 ante and 181 po8t,

109* Li every case where a mortgage or other encumbrance (except a Mortgaged
lease), under the hand of the holder of the certificate of title, is presented bered oer-
to the District-Registrar for registration, the certificate of title shall be SJi^^.^'
deposited with the District-Begistrar, who shall retain the same on pounded,
behalf of aU the persons interested in the lands mentioned in such cer-
tificate. The District-Begistrar shall, if desired, (a) furnish to the owner
of such land a certified copy of the certificate of title and to the encnm-
brancee or his assignee a certificate of charge and before any subsequent Certificate
dealings with said land by the owner or before discharges of all existing ^ ^^B^-
encumbrances are registered, said certified copy shall be delivered up to
the District-Begistrar to be cancelled and before any dealing with or dis-
charge of said encumbrance is registered, except in the case provided by
section one hundred and one, (b) said certificate of charge shall be deliv-
ered up to the District-Begistrar to be cancelled. Provided, however,
that the District-Begistrar may dispense with such production upon satis-
factory evidence being produced of the loss or destruction of any such
certificate or certified copy, (c)

(a) A praBcipe must be filed for every such copy or certifi-
cate of charge.
(6) Where payment is made to the Provincial Treasurer,
(c) As provided by sec 68 (6) ante.

Form of Certificate of Charges.

Land Titles Office, District of

Certificate of Charges.
Mortgage No. Application No.

Assignment No. Cert, of Title No.

Tliis 18 to certify that a mortgage (or encumbrance, or as the case
may be), made by (describe mortgagor, encumhrancer, or (u the case may

164 P0WBB8 OF ATT0BNE7.

be), to {de$erihe mortgagee, etc., and recite assignments, etc., if any), for the
sam of Dollars affecting {describe

lands), was duly Te^^istered in the Land Titles Offioe at , on

the day of A.D. 18 , at o'clock in the

noon, and that no registered mortgages or encnmbranoes affecting
the said lands are entitled to priority over the said mortgage (or as tlu
ease may be), except the following, that is to say: {here set forth prior
charges).

Dated at the Land Titles Office at Winnipeg, this day

of A.D. 18

[Seal.] District Registrar.

FowxBS OF Attobnby.

Attorney I10« The registered proprietor of any land, estate or interest nnder

pointed. the new system may aathorize and appoint any person to act for him or
on his behalf in respect of the transfer or other dealing with such land, estate
or interest in accordance with the provisions of this Act, by executing a
power of attorney in any form heretofore in use for the like pnrpose, or

Form of in- in the form contained in Schedule K to this Act or as near thereto as
circumstances will permit, and a duplicate or attested copy thereof shall
be deposited with the District-Registrar, who shall enter the same in a
register kept for that purpose, and if the land therein referred to is speci-

BegtBtrsr fioally and properly described he shall also enter in the Register a memo-
randum of the particulars therein contained and the date and hoar and
minute it is deposited with him.

See sec. 41 ante as to applications by an attorney.

SCHEDULE K.
FoBM or Power or Attornbt.

I, A. B., being registered as owner of an estate {here state nature of the
estate or interest) subject, however, to such encumbrances, liens and
interests as are notified by memorandum underwritten {or endorsed here-
on) in {here refer to schedtUe for description and contents of the several parteU
of land intended to be affected, which schedule must contain reference to the
existing certificate of title or lease of such parcel) do hereby appoint C. D.
attorney on my behalf to {here state the nature and extent of the powers
intended to be conferred, as whether to uU, lease, mortgage, etc,) the lands in
the said schedule described, and to execute all such instruments, and do
all such acts, matters and things as may be necessary for carrying out
the powers hereby given, and for the recovery of all rents and sums of
money that may become or are now due or owing to me in respect of the
said lands, and for the enforcement of all contracts, covenants or ooiidi>
tions binding npon any leBsee or occupier of the lands, or upon any

POWEBS OF ATTOBNEY 166

Other person Id respect of the same, and for the taking and maintaining
possession of the said lands, and for protecting the same from waste,
damage or trespass.

In witness whereof, I have hereunto subscribed my name this
day of

Signed by the above named\

A, B., this

j^ - ^ (As to seal see note to see, 144,)

in the presence of X. Y.

lit* A power of attorney given by a person before as well as after be. What pow-
coming an owner of any land or of any lease, mortgage or charge, or nSr^valid!'"
given before, as well as after, sach land shall be under the new system,
shall be deemed to be within the meaning of said section one hundred
and ten, and every power of attorney heretofore given or which shall here-
after be given, or a copy thereof attested or certified in the same manner
as instruments may be attested or certified under the Lands Registration
Act of Manitoba and amendments thereto, when deposited with the
District-Registrar shall, while continuing in force, be valid and available
within the scope and to the extent of the powers and authorities given or
to be given by such power concerning the lands, tenements and chattels
real generally of the principal for similar or corresponding dealings with
any land under the operation of the new system, or with any lease,
mortgage, or charge thereon ; and all powers of attorney deposited with the Affidavit of
District-Registrar under this section shall be duly executed, attested and
verified by an affidavit of the subscribing witness, and may be in any form
heretofore in use or in the form in schedule L to this Act.

Compare notes referring to chattels real, sec. 27 ante.
See Form of Attestation sec. 74 ante.

SCHEDULE L.

FoBU OP Genebal Power of Attorney.

I, A. B., {insert addition) do hereby appoint C. D. [insert addition) my
attorney 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 **Real Property Act of 1889,*' or of which I am
now or shall hereafter be the owner under the said Act. Also to mort-
gage 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 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

166 REVOCATIONS.

exeroise and execute all powers which now are or shall hereafter he vested
in or conferred on me as lessor, mortgagee or assistant under the said
Act {or otherwise, according to the nature and extent of the powers
intended to be conferred). And 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 occu-
pier of the said lands, or upon any other person in respect of the same,
and for recovering and maintaining possession of the said lands and for
protecting the same from waste, damage or trespass. And also for me,
and in my name and on my behalf, to deal with any land, lease, mort-
gage or charge of which I am now or shall or may at any time or times
hereafter be the registered proprietor, either solely or jointly with any
other person or persons, as effectaally as I could do in all respects, and
to sign any instruments necessary to give effect to any such dealing.

Dated this day of A. D, 18

Signed, sealed and delivered I ,« ,. k *i ** *«#-^.. »

. ' . h (Sealing seenu necessary by t/ie attestation.)

m the presence of >

Bevocation 1I3. Any such power of attorney may be revoked by a revocation
attorney, in the form contained in Schedule M to this Act, or in a form to the
like effect, or in a form heretofore in use for a like purpose, and after the
registration of any revocation of a power the District- Registrar shall not
give effect to any transfer or other instrument signed pursuant to such
power unless it appears upon any certificate granted previous to such
registration and outstanding at the time, bat no power of attorney
shall be deemed revoked by act of the party or by death until a revo-
cation thereof shall have been registered with or notice of death given or
become known to the District-Registrar with whom the power of attorney
or any certified copy thereof is registered.

The exception evidently refers to transfers by endorse-
ment on an outstanding certificate, sec. 72 ante.

An instrument signed before registration of a revocation
but produced afterwards will not be registered. Sedgwick,
Practice of the Land Titles Office at Victoria.

Registration is necessary to give effect to the revoca-
tion. See sees. 74 and 77 ante.

TBANSMI88IONB BY DEATH. 167

SCHEDULE M.

FoBu 07 Revocation or Powbb.

T. A. B., of heraby revoke the power of attorney

^ven by me to dated the day of

In witness whereof I have hereanto subscribed my name this

day of
Signed by the aforesaid A. B.
on the day of

in the presence of I [A. B. '

In all cases it may be noted that a seal would probably
be necessary in order to give the attorney authority to
enter into covenants and specialty contracts. See note to
sec. 96 antCt and sec. 144 post.

The following clause in Powers of Attorney is recom-
mended by the Officer of Titles in Victoria, to facilitate the
passing of instruments signed by attorney : —

" And also for me and in my name, and on my behalf, to deal with any
land, lease, mort^aga, or charge of which 1 now am or shall or may at
Any time or times hereafter be the registered proprietor, either solely or
jointly with any other person or persons as effectaally as I conld do in
all respects, and to sign any instruments necessary to give effect to any
each dealings.*"

Transmissions.

113« Whenever the owner of any lands subject to the new system Personal
dies, the executor or administrator (a) shall, before dealing with the^^'^^f
lands, (b) make application in writing (c) to the District-Registrar to be deceased
registered as owner, and shall produce to the District- Registrar the pro- make ap-
bate of the will of the deceased owner, or letters of administration or the P^ica^oi^'
order of the court authorizing him to administer the estate of the
deceased owner, or an office copy of the said probate letters of adminis-
tration or order, as the case may be, {d) and such further evidence as the Proof re-
District- Registrar may require ; (e) and thereupon the District- Registrar ^^ '

•hall enter in the Register a memorial of the date ot the will and of the Particulars

to oe en-
probate, or of the letters of administration or order of the court astered.

aforesaid, the date, hour and minute of the production of the (same to
him. the date of the death of such owner when the same can be ascer-
tained, with such other particulars as he may deem necessary, and upon
such entry being made the executor or administrator, as the case may
ba, shall ba daemed to be the owner of such lands (/) and the District-

168 TRANSMISSIONS BY DEATH.

Registrar shall note the f aot of such registration by memorandum nnder
his hand on the probate of the will, letters of administration, order or
i&te^biuik^ other instrument as aforesaid ; (g) Provided always, that the title of the
to death, executor or administrator to such land shall relate back and take effect
as from the date of the death of the deceased owner ; (/i) Provided that-
the duplicate certificate of title granted to the deceased owner shall be
delivered up to be cancelled, (t) and the District* Registrar shall issue to*
the executor or administrator a fresh certificate of title stating therein
the fact that the new registered owner is the executor or administrator, {j)

(a) See sec. 8 (1) and (17) ante, as to wbat is included
ill the word ** lands " and as to the expression "transmis-
sion "which would be included in the term " transfer," sec.
3 (8) ante, where the context permitted.

This section only applies to lands after an application
has been filed (sec. 42 ante), but applies to such lands even
where deceased held them in a fiduciary capacity, see sec,
117 post.

The death of the owner does not stay proceedings in the
Land Titles Office, (sees. 49, 50, 51 and 81, ante), but on
dealings, the sanction of the Court would be required in
case of joint proprietors, where under sees. 82 and 83 ante,,
the entry " no survivorship " has been made.

As to the descent of lands, see sees. 27 and 29 and notes
ante. See also the Wills Act of Manitoba, 45 Vic. cap. 2^
and Surrogate Acts cited at note {d) infra.

{b) An executor must prove the will before he can apply
for registration of the testator's land ; (re Bannerman, 2
Man. L. B. 377) ; see also Eule 7, Sch. S, sec. 26 ante ; and of
necessity probate must be made and letters of adminis-
ration must be granted before the intestate's lands vest
in the personal representatives. Compare remarks of
Taylor, C. J., Re Lewis, 5 Man. L. R. 48, and see note (./ )^
infra.

TRANSMISSIONS BT DEATH. 169

{d) See Acts affecting the Surrogate Court, 44 Vic. cap.
28, amended by 46 & 47 Vic. cap. 1, sees. 9«-102; and
49 Vic. cap. 5 ; also 48 Vic. cap. 21 ; 49 Vic. cap. 13 ; 51
Vic. cap. 29, sec. 82 ; and 52 Vic. cap. 22.

(e) The production of Probate or Letters of Administra-
tion can not be received as sufficient evidence of death or
intestacy, Re Lewix, 5 Man. L. B. 44. These facts must
be proved in the usual manner, and the production of a tax
certificate is required by Rule 19, Sch. S, s. 26 ante. A
fee is exigible on the entry of transmission (see tariff
sec. 21 antf') and commission is payable as required by sec*
140 pasty which may render a valuation of the lands neces-
sary, (see sec. 71 ante).

(/) The lands do not pass until the registration has been
made (sees. 74 and 77 ante), and before the entry of trans-
mission can be made in the Register all proceedings must
be completed if any were pending at the time of the owner's
decease. See sees. 49, 50, 51 and 81 aiite.

(g) See sees. 74 and 76, and Rules 7, and 14-19, Sch.
S, sec. 26 ante. '

(A) The title of the personal representative would be
subject to all encumbrances, liens and charges registered
in the meantime, (see notes to sec. 29 ante, also sees. 68,
64 and 65 ante), and semble, that he should take possession
in fact of all lands which have passed to him, for during
the time between the death of the deceased owner and the
transmission there was nothing to prevent another entering
and holding possession of any vacant or unoccupied lands.

(0 See sec. 78 and Rules 17 and 22, Sch. S, sec. 26 ante.
The District Registrar may dispense with the production
of the certificate of title in a proper case, as provided by
sec. 68 (6) ante, but a provisional certificate [sec. 68 (7)
ante] could not be issued in the place of one lost or

170

M0BTOAOB8, BTC. —ASSIGNMENTS.

Tr&Dimis-

«ionof

mortgage,

enoam-

branoeor

lease.

Farticulan
to be en-
tered.

Executor
or admlQ-
Istrator
deemed to
be owner.

ABsign-
ment of
owner for
benefit of
oreditors.

destroyed, as there is as yet no * owner ' to whom it can be
issued.

{j ) The new registered owner takes subject to all trusts
and equities upon which the deceased held the estate as
well as those to which he may be bound in his fiduciary
capacity. See sees. 29, 68 (5), 80, 86 and 117.

114« Whenever any mortgage, encnmbrance or lease affecting land
registered under the new system is transmitted in consequence of the
will or intestacy of the owner thereof, probate or an office copy of the
will of the deceased owner, or letters of administration, or the order of
the court authorizing a person as aforesaid to administer the estate of
the deceased owner, accompanied by an application in writing from the
executor or administrator, claiming to be registered as owner in respect
of such estate or interest, and such futher evidence as the District-
Registrar may require, shall be produced to the District-Registrar, who
shall thereupon enter in the Register and on the instrument evidencing
title to the mortgage, encumbrance or lease transmitted, the date of the
will and of the probate, or of the letters of administration or order of
the court as aforesaid, the date and hour of the production of the same
to him, the date of the death of such owner, when the same can be
asoertamad, with such other particulars as he may deem necessary, and
upon such entry being made the executor or administrator, as the case
may be, shall be deemed to be the owner of such mortgage, encumbrance
or lease, and the District-Registrar shall note the fact of such registration
by memorandum under his hand on the letters of administration, probate,
or other instrument as aforesaid.

See 45 Vic. cap. 2, sec. 80.

See notes to sec. 118 ante.

See also sees. 80, 98-106 ante^ and notes.

115« Upon any assignment being made by the registered owner of
any land, mortgage or encumbrance for the benefit of his creditors, the
assignee or trustee of such person shall be entitled to be registered as
owner in respect of the same, and the District- Registrar, upon registra-
tion of the instrument transferring such land, mortgage or encumbrance
to such assignee or trustee, shall enter in the Register a memorandum
notifying the appointment of such assignee or trustee, and upon such
entry being made such assignee or trustee shall be deemed and taken to
be the owner of such land and a certificate of title shall issue in his favor.

Compare with sections 118 and 114 and notes ; see sec.
117 post.

TRUSTS IMPLIED. 171

As to commission, see sec. 140 post, and sec. 71 ante as
to valuation.

IIO* Under the preceding provisions as to a bankrupt lessee, no entry Aotions on

of the assignee's or trustee's refusal to accept shall operate to prejudice ^ved on

any action or cause of action which shall have previously been com- assignment

by lessee,
menced or have accrued in respect of any breach or non-observance of

any covenants is such lease.

See sees. 93 and 94 ante. Compare note (ff) to sec. 104
ante.

IIT* Any person registered in place of a deceased person or bankrupt Personal
proprietor, shall hold the land in respect of which he is registered upon ta&v?and
the trusts and for the purposes to which the same is applicable by this ^sslgnee of
Act or by law, and subject to any trusts and equities upon which the to hold
deceased or bankrupt proprietor held the same, but, for the purpose of ^^"" trust.
any registered dealings with such land, he shall be deemed to be the
absolute proprietor thereof, (a) Provided always that the person or per- Proviso for
sons beneficially interested in any such lands or any estate or interest trustee or
therein, may apply to a court or judge having jurisdiction to have the ^^^>snee.
same taken out of the hands of the assignee or trustee having charge by
law of such bankrupt (aic) property, and transferred to some other person
or persons, and the court or judge, upon reasonable cause being shown,
shall name some suitable person or persons as proprietor of the lands, or
the estate or interest in question, as the case may be, and upon the
person or persons so named accepting the proprietorship and giving the
necessary security for the due fulfillment of the trusts, the court or judge
shall make an order directing the District-Begistrar to cancel the certifi-
cate to the assignee or trustee, and to make a new certificate to the person
or persons so named ; (b) and the District-Begistrar, upon the production
of such order, shall cancel the certificate to the assignee or trustee, and
shall enter in the Begister a memorandum of the appointment by order
of the court of such other proprietor or proprietors in trust, (c) and a cer-
tificate of title shall be issued to him or them.

The " property " referred to in the eleventh line consists
of the lands, estate or interest of a deceased person or
bankrupt proprietor, and evidently the word '' bankrupt "
is a typographical error.

Compare cap. 18 of 49 Vic, " An Act respecting Trustees
and Executors, and the Administration of Estates ^

172 sheriff's sales.

(a) The beneficiaries may protect themselves by filing
caveats, or if proceedings in Court are taken by filing lis
pendens (sees. 180 and 131 post).

The District Begistrar may prevent fraud or improper
dealings by filing a caution [sec. 68 (5) ante] .

In, Victoria the practice of the Title's Office is to dis-
tinguish by the letters S. 0., denoting *' Special Owner-
ship," the title of every registered proprietor, whether of
land, lease or mortgage known to hold in a financiary
capacity. Mr. A'Becket comments on this practice, {Trans-
fer of Land Statute, p. 183 et seq.), under section 129 of the
Victorian Act. But section 38 of the Victorian Statute has
a clause giving the Commissioner of Titles discretionary
power for the protection of the interests of beneficiaries
which has been omitted in section 86 of this Act See notes
to sec. 86 ante, and compare sec. 68 (5) of this statute with
the third paragraph of sec. 129 Victorian Act.

(b) See sec. 123 post. Qucere as to certificate with
Judge's order required by the proviso.

The District Begistrar can enforce the production of the
certificate of title, sec. 68 (1) ante, and sees. 121 and 124
post, or its production may in a proper case be dispensed
with, sec. 68 (6).

(c) This direction of the Court would not authorize
mention of the trust in the Begister, which should show
merely a memorial that another person has been appointed
by the Court to be the registered owner of the estate. See
sec. 86 ante, and note citing report of the Queensland Boyal
Commission. (See sec. 33, Act of 1890, in Appendix.)

Sheriff's Sales.

The clauses of the Beal Property Act of 1885, 102-106, as
amended by 60 Vic. cap. 11, sees. 32-35 and 51 Vic. cap. 32»
sees. 19 and 20, have not been consolidated in this Act, and

APPEALS. 178

they have been affected by the repealing clauses section 2
ante and section 152 post. See also notes to section 16 ante,
and compare 52 Vic. cap. 86, sees. 18, 14 and 15. See note
to section 77 ante as the Registration of Sheriffs' Deeds.

Jurisdiction of the Coubt.

118* If any person is dissatisfied with any act, omission, refusal, Appeal
decision, direction or order of the District- Registrar, snoh person may ci8i?n of
reqaire the District- Registrar to set forth in writing under his hand the ^* ^•
groands of such act, omission, refusal, direction, decision or order, and
such parson m%y then apply to a judge of the Court of Queen's Bench
in Ghamhers by petition, setting forth the particulars and the grounds
of his dissatisfaction, and thereupon the District- Registrar and Attorney-
General shall be served with such petition, which said petition shall
state the time and placo for the hearing thereof, and the court or judge
shall have the jurisdiction to hear the said petition, and shall make such
order in the premises as the circumstances of the case may require, and
as the court or judge may direct, and make such order as to the costs of Costs.
the parties appearing upon such petition as it or he may see fit.

See proviso of sec. 128 post as to certificates of title
ordered to be issued by the Court.

All such orders may be appealed from, see sec. 126 post ;
see sec. 185 Victorian Transfer of Land Statute.

This section corresponds with sec. 109 of the Act of 1885,
on which Mr. Jones {Torrens System) has noted some inter-
esting cases in New South Wales under a statute contain-
ing similar provisions.

Where a certificate issued with an endorsement purport-
ing to reserve ** any lawful rights ificident to the align-
ment of streets or roads abutting on the land,*' the
Court directed the Registrar-General to cancel such certifi-
cate, and to issue a new one without such endorsement.
Ex parte Smart, 6 S. C. R. 188.

Where an application was rejected on the grounds
substantially that various encumbrances affecting the
lands had not been noticed in the application, and that the
parties interested in the encumbrances were not parties to

174 APPEALS.

the application, and it appeared to the Court that the legal
estate was vested in Trustees who bad made the applica-
tion» and that they had power to sell and convey a title in
fee simple to purchasers, the Registrar-General was ordered
to cause the investigation of the title to be proceeded with.
Ex parte Penington et al., 18 S. G. B. 806.

Where an attorney, under a power of attorney, consented
to a conveyance from trustees, under a settlement, and tbe
objection was taken " that the consent to the sale involved
discretion and judgment, and could not be delegated by
power of attorney," the Court ratified tbe refusal on the
allegation stated, although the power had special reference
to the consent required. A'Becket, Land Transfer Statute,
191.

The trustees of a settlement having power to exchange
tbe settled lands for other land " yielding a rental equal
in amount to tbe lands exchanged for the same," did
exchange the settled property for other property of greater
value, but not actually yielding any rent at the time, and
executed the necessary conveyances under tbe general law.
Tbe Court held the power badly exercised, and refused to
make an order for tbe registration of tbe vendees of the
settled lands, under the statute. Ex parte Daugherty, 4
A. J. R. 71.

These applications have been treated as in the nature of
applications for mandamus to the Registrar to perform a
supposed duty, but the Court declined to interfere unless
the applicant's title appeared distinctly to be a good one.
Fitzgerald v. Archer, 1 W. W. & A'B. (L.) 40. In Ex parte
Patterson, 4 A. J. R. 26, the Court spoke of this procedure
as rendering a mandamus unnecessary. Mr. Justice Stephen
said, in Ex parte Folk, 6 V. L. B. (L.) 405, 409, " 1 think
that in such an application as tbe present, the Court is not
called upon to give an absolute and final decision upon the

BEFBRRED CASES. 17&

point submitted, as it might do if the persons adversely
interested were litigating it ; we would be slow in such a
case to overrule the Registrar when by so doing we might
throw a burden upon the insurance fund." Even where
the Registrar was blameable for refusing to take such steps
as might have been taken in the investigation of a title
pending the decision of an appeal on some of the points
involved, the Court refused to deprive him of his costs, in
view of his position as guardian of the assurance fund.
Ex parte Bowman, 7 V. L. R. (L.) 314.

In Victoria the proceeding is by summons to the Regis-
trar to appear before the Supreme Court to substantiate
and uphold the grounds of his refusal, etc., and these sum-
monses are heard in term before the full Court. Counsel
for the Registrar opens the case at length and replies.
(A^'Becket, Land Transfer Statute, 19*2.) The Registrar
should make known his reasons in point of law, or in point
of fact. Ex parte Bond, 6 V L. R. (L.) 458, 463.

no* Whenever upon the examination of the title to any land, either D. B. may
before or after it is brought under the new system, the District-Begis- Iq^ opi^kfa
trar, after hearing aU the evidence procurable, entertains a doubt as to ?'^^^ ^^
any matter of law or fact arising upon such title, he may state a case
for the opinion of the court or a judge ; the District-Registrar may also
name the parties to such case, and the manner in which the proceedings
in relation thereto are to be brought before the court or judge, to which
such case is referred.

Compare sec. 48 of the Territorial Act, post, and from S.
there given for cases stated.

See note to next following section.

ISO* Whenever any question arises with regard to the performance Unoertain
of any duties, or the exercise of any of the functions by this Act confer- mtStoif °
red or imposed upon the District-Registrar, or whenever in the exercise P^;^[^^^T^
of any of the duties of the District-Registrar, any question arises as to judge in
the true construction or legal validity or effect of any instrument, or as Chambers^
to the persons entitled, or to the extent or nature of the estate, right or
interest, power or authority, of any person or class of persons, or the

176 REFERRED CASES.

mode in which any entry ought to be made on the Begister or certificate
of title, or as to any doubtful or uncertain right or interest stated, or
dealt with by the District- Registrar, it shall be competent for him to
refer the same with a short statement of facts and the reasons for his
referring the matter and the names of the parties interested so far as
he knows or has been informed, to a judge of the Court of Queen's
Bench in Chambers, who shall allow any of the parties interested, and
the Attorney-General for the Province, to appear before him, and may
summon any other persons to appear and show cause in relation thereto ;
Power of and if upon such reference the said judge, having regard to the parties
appearing before him, thinks proper to decide the question, he shall have
power to do so or to direct any proceedings to be instituted for that pur-
pose, or, at the discretion of the said judge, and without deciding such
question, to direct such particular form of entry to be made on the
Begister or certificate of title as under the circumstances appears to be
just.

Where the Commissioner of Titles, instead of asking the
opinion of the Court under section 128 of the Victorian
Transfer of Land Statute, decided that the words "any
writ " in the section (106) of that statute, referring to sales
under fi. fa., decree or order of the Supreme Court, meant
an original, and not an alias or plurieji writ, and in conse-
quence of that decision registration was refused, the Court
being of a different opinion, ordered the registration to be
made and allowed each party to bear his own costs. Ex
parte Paterson, 8 V. R. (L.) 128 ; 3 A. J. R. 92.

The Registrar is not bound to act on an opinion obtained
under the Statute of Trusts, which does not conclude the
rights of the parties amongst themselves, or protect the
assurance fund. Ex parte Folk, 6 Y. L. R. (L.) 405.

Compare 49 Vic. cap. 18.

The ruling of the Court or Judge under either of these
sections (119 and 120) would be appealable, as would also
the decision of the Court of Appeal, see sec. 126 post.

Caveats ordered to be entered by the Court may be set
aside by the Court or a Judge, or a Judge in Chambers.
See sec. 180 (16) post.

CANCELLING CEBTIFICATE8. 17?

191« If it appears to the satisfaotion of the District-Begistrar that Where oer>
any oertificate of title, or other inBtniment has been issned in errot, (a) issued in
or oontains any misdesoription of land, or of boundaries, or that any p^^^'^ay'
entry or endorsement has been made in error on eny oertifioateof title sammon
cr other instmment, or that any suoh certificate, instrmnent, entry, or deliver op.
endorsement has been f raudnlently or wrongfully obtained, or that any
such certificate or instrument is fraudulently or wrongfully retained, he
may summon the person to whom such certificate or instrument has been
so issued, or by whom it has been so obtained or is retained, to deliver up
the same for the purpose of being cancelled or corrected as the case may
require, (h) and in case such person refuses or neglects to comply with In case of
such summons, or cannot be found, the District-Registrar may apply to may apply
a judge of the Court of Queen's Bench in Chambers to issue a summons ^^ J^^o-
for such person to appear before a judge thereof, and show cause why such
grant, certificate or other instrument should not be delivered up to be
cancelled or corrected as aforesaid, (c) and if such person, when served Arrest on
with such summons, neglects or refuses to attend before the judge, at the fJI^.^^'^
time therein appointed, it shall be lawful for the judge to issue a warrant
authorizing and directing the person so summoned to be apprehended and
brought before the judge for examination.

(a) An error is not only a mistake of fact, but also an error
in law. Per Stawell, C.J., in Ex parte Bond, 6 V. L. R.
(L) 458, 468. Anything improperly done or omitted to be
done is an error under this section. See Ex parte Patterson,
4 A. J. B. 26 ; 5 A. J. B. 128, and L. B. 2 App. Cases, 110.

(b) See sec. 128 post, and sec. 185 Vict. Act. A person
entitled to be registered could upon a summons or by
mandamus compel the Registrar to exercise this power in
case he refuses to do so. Ex parte Patterson, 4 A. J. B. 26;
Ex parte Stark, 4 A. J. B. 114.

DM* Upon the appearance before the jud^e of any person summoned Jurisdle-
or brought up by virtue of a warrant ?i9 aforesaid, it shall be lawful for ^^^^^
the said judge to examine such person upon oath, and, in case it appears
right so to do, to order such person to deliver up such certificate of title
or other instrument, as aforesaid ; and upon refusal or neglect by such
person to deliver up the same, pursuant to such order, to commit such
person to the common gaol of any judicial district for any period not
HAN.L.A. 12

178 CANCELLINO CERTIFICATES.

exceeding; six months, unless such certificate of title, or instrument be
Hoon^ delivered up, and in such case, or in case such perBon has
absconded, so that summons cannot be served upon him as hereinbefore
directed, the said judf^e may direct the District-Registrar to cancel
or correct any certificate of title or other instrument, or any entry or
memorial in the Register relating to such land, and to substitute and
issue such certificate of title or other instrument or make such entry as
the circumstances of the case may require, and the District-Registrar
shall obey such order.

The procedure under this and the preceding section
would be the same as the rules of procedure and practice
in force in the Court of Queen*s Bench. See Rule 24, Sch.
8, 8. 26 ante, and sec. 127 post.

Compare section 112 of the B. P. Act of 1885.

Decisions under corresponding provisions (sees. 182 and
188) of the Victorian Statute have been rendered in Gunny,
Harvey, 1 V. L. R. (E) 111; and Campbell v. Janet, 7
V. L. B. (E) 187. Where certificates were impeached for
fraud, it was held that the Court had no jurisdiction to
correct or cancel them, and that the proper course was to
direct the parties to execute the necessary transfers.
Where a voluntary settlement was defeated by a subse-
quent mortgage, the Court did not order the mortgagee to
be registered as absolute proprietor, but directed the trustee
of the settlement to execute a mortgage. Moss v. WiUiam'
son, 8 V. L. B. (E)221; Re Biggs, 11 S. A. L. R. 48;
Biggs v. Waterliouse, 12 S. A. L. B. 76, 86 ; but this
section (122 Man. Act) appears wider than the 132nd
section of the Victorian Statute. The 128rd section
of the Manitoba Act post has also a general application
which appears to have been doubted in the above cited
cases in applying the corresponding section 189 of the
Victorian Statute.

A person properly entitled to land included by error,
fraud or any misdescription of lands or boundaries in any
certificate of title may obtain relief by an action of eject-

CANCELLING CERTIFICATES. 17d

ment against the person registered as owner through such
fraud, error or misdescription, without having recourse to
the proceeding provided by these two sections, and likewise
in the case of a fraudulent or voluntary transferee or
owner holding a prior certificate of title, or where two or
more certificates of title have been registered under thia
Act in respect of the same land. See sec. 67 ante.

Where the Court decided that a certificate of title had
been issued in error and ordered a new certificate to issue-
in the name of another person, proceedings were taken under
the corresponding sections of the Victorian Statute to hav&
the first certificate of title delivered up ; the Court refused
to make any order until a person with whom it had been*
deposited by way of equitable mortgage had been repaid
his mortgage debt. Ex parte Paterson, 4 A. J. B. 110.

123. In any proceeding respecting land or in respect of any transaction Judge mar
or contract relating thereto, or in respect of any instrument, caveat, ^^^^\
memorial, or other entry affecting land, it shall be lawful for a judge in oertiflc»te.
chambers, by decree or order, to direct the District-Registrar to cancel,
correct, substitute, or issue any certificate of title, or make any memorial
or entry in the Register, or otherwise to do every such act or make every
such entry as may be necessary to give effect to the judgment, or decree,
or order of the court.

Provided that no certificate of title shall be cancelled or set'aside save Cancel*

• « if

in the cases specially excepted in Section sixty -four of this Act, and pro- ijlo^^ iir
vided further that the District-Registrar shairnot issue any certificate of ®^®^^~
title by order of the court unless in such order it is certified that the title certificate
of the person to whom the certificate of title is to issue has been found nottoiBBve
upon investigation to be a good safe-holding title, or unless such has been oertifled.
determined to be the case by the District-Registrar.

This proviso would also apply to an order or decree by a
Judge in Chambers. See Appendix, new caveat rules.

Compare sec. 189 of the Victorian Land Transfer Statute
and sec. 118 of the B. P. Act of 1885 as amended by 611
Vie. cap. 22, sec. 10, and see notes to the foregoing section

See sees. 117 ante and 129 post.

180 APPEALS, ETC.

Jodge may DM* After an applioation has been made to have any land brooeht
OFolsr pro* _ • *»

doctlon of under the operation of the new system, a judge in chambers may require

doeamenta. ^y^ persons haying in their possession or custody any deeds, instruments

or evidences of title relating to or a£fecting the land, the subject of such

application, to produce the same in the Land Titles Office to the Distriot-

Begistrar or to any Examiner of Titles for his inspection, upon snch

terms and subject to snch conditions and for snch charge or fee as the

jadge making the order shall 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 applicant, owner or by the person to whom he may

have directed a certificate of title to be issued.

See see. 68 ante. Compare 60 Yio. cap. 11, sec. 40.

Judge may 1SS« Upon the hearing of any matter arising under this Act, s judge

witD608e8. ^Q chambers or the court may summon any person to appear, either to

Atty-Oen'l £^^^ evidence, or be made a party in the cause, and any person interested.

ha£d^ ^ ^^^ ^^^ Attorney-General for the Province of Manitoba may appear and

be heard before such judge or court, or any court of appeal to which

such cause or matter may be taken, and such judge or court may dispose

of the matter, and award costs to any of the parties in such manner as

the said judge or court may think proper.

See Bale 24, Sck. 8, sec. 26 ante^ notes to sees. 124 and
126, and sec. 47, Act of 1890 in Appendix.

Order of ISO* Any order made by such judge or court or court of appeal in any

i^able^ matter arising under this Act, shall be subject to appeal in the same

manner as any other order made by such judge or court, and all parties

to the cause, and the Attorney-General of the Province of Manitoba shall

have the right to appeal.

See note to next following section.
Compare sec. 188 of the Territorial Act post.

Bigb^of 1S7« In the conduct of actions and other proceedings provided for

Pr^dore under this Act, there shall be the same rights of appeal, and the same

rules of procedure and practice shall apply as are in force or exist for the

time being in respect of actions and other proceedings of asimiliar nature

in the court in which such action or proceeding may be tried or taken, and

Court may Buch court shall have power to make additional, or alter rules and rega-

make rules, lations, and to make new, or alter forms of proceedings, and from time to

time repeal, alter or vary the then existing rules and regulations, and to

make new rules and regulations and forms of proceedings for the practice

and procedure of the court in regard to matters which may arise under

the provisions of this Act.

APPEAL, RULES, FEES, ETC. 181

Compare sec. 114 of B. P. Act 1885, and sec« 162 of the
Tictorian Statate, under which it was intimated {Hodgson
V. Hunter^ 8 A. J. B. 18) that the Judges might direct the
details of proceedings in matters of caveat, bringing the
parties before the Court, and putting doubtful questions
into a course of legal determination within a limited time
80 as to uphold the policy of the Act, which is to bring all
titles into a state of simplicity.

Thus far no rules or regulations have been made by the
Court under this section.

An appeal will lie from a verdict rendered upon the trial
of an issue under the provisions of this Act ; and upon such
appeal affidavits cannot be read when they are not men-
tioned in the notice of appeal, or of the intention to read
which notice has not been given until two days before the
argument on the motion, unless satisfactory reasons are
assigned why an earlier notice was not given : Morrice v.
Baird, 6 Man. L. B. 241. Upon a reference by the Begis-
trar-General no material other than the case submitted,
together with any documents transmitted, can be con-
sidered : Joyce v. Scarry^ 6 Man. L. B. 281.

ISS* The coart shall have the power to fix and regulate from time to Fees pas-
time the fees payable upon all proceedings before the court, and until the court^pro-
■aid court shall otherwise order, the fees payable shaU be according to oeedingB.
the fees payable in'respect to proceedings of a similar nature in the court.

See note to last preceding section. Compare sec. 116
B. P. Act of 1885. No special tariff has as yet been fixed
by the Court.

UQ* Nothing contained in this Act shaU takeaway or affect the juris- Equitable
diction of any competent court on the ground of actual fraud, or over con- ^^^^ ^^
tracts for the dale or other disposition of land, or over equitable interests ^^^"^\^^
therein.

See sec. 128 and notes to sees. 64, 85 and 86 ante.
Compare sec. 157 Victorian Statute and sec. 188 B. P.

Act of 1885. See notes to sub-section 4 of section 180, and

also notes to sec. 149 post.

182

CAVEATS.

Who may

lodge

•caveat.

Form of.

Applioant
to be noti-
ced.

The e£feot of this section is not so limited or restricted
as that of the corresponding clause of the Victorian Statute,
the effect of which was discussed in R. v. McCooey, and R.
T. Johnson, 5 V. L. R. (L.) 88.

Caveats aftbb Application is made to baino Lamd under the New

Ststek.

Note. — The following provisions respecting caveats are
practically those of section 107 of the B. P. Act of 1885 as
amended by 49 Vic. cap. 28, sec. 15 ; 50 Vic. cap. 11, sec.
87 ; and 51 Tie. cap. 22, sec. 18 ; omitting, however, the
provisions of these Acts as to the filing of caveats before
any application has been made to bring lands under the

new system."

'Caveat to
lapse in
•one month
anlees pro-
ceedings
Aaken.

180* Any person claiming any estate or interest in the land described
in the application to bring the same nnder the new system may, at any
time before the registration of the certificate of title, lodge or have lodg-
ed on his behalf a caveat with the District-Registrar in the form in
Schedule O (a) to this Act, forbidding the bringing of such land under
the new system. '

(1) The District- Registrar apon receipt of such caveat shall notify the
applicant or his solicitor or agent of the same and shall not brin^
the land under the new system until such caveat shall have been
withdrawn or shall have lapsed, as hereinafter provided, or until an order
shall have been obtained from a court of competent jurisdiction or a judge
thereof sitting in chambers, discharging the same (6).

(2) After the expiration of one month from the receipt thereof, such
caveat shall be deemed to have lapsed, unless the person by whom or on
whose behalf the same was lodged shall within that time have taken pro-
ceedings under the rules in Schedule R to this Act, to establish his title
to the land or his right as set out in such caveat, (e)

(a) See also sub-sec. 8 post.

See note to see. 65 ante, re Jackson d MacFherson where
the Begistrar-General excused an adverse occupant from
the necessity of filing a caveat. In ex parte Brown, 5 V.
L. B. (L.) 6, it was held that a caveator in possession and
basing his title on adverse possession could not get a
restraining order to delay registration under provisions
similar to sub. sec. 6 infra.

CAYBAT8. 188

{b) For form of notice see note to sub-sec. 4.

See sec. 46 ante and Bule 10 Sch. B. infra as to costs,
etc., where the application is withdrawn.

(c) He must also comply with the requirements of sub-
sees. 8 and 11 of this section, and Bules 1, 2 and 18, Bch.
B. infra. It may be set aside on application of the owner
under sub-sec. 12 infra. No restraining order is provided
as in sub-sec. 5 infra. But see Appendix.

SCHEDULE O.

PoBM OT Caveat torbiddino the Land to be brought under the New
System afteb Application has been made for

that Purpose.

To the District-Begistrar, —

Take notice that I, {insert name and addition) claim (particularize t)ie
tttate or interest claimed) in the land described as (description of land), in
the advertisement * relating to the application of (state applicant's name
and addition, or if there is no advertisement, state " in the application
of*') and I forbid the bringing of such land under the operation of " The
Real Property Act of 1889." I appoint as the

place at which notices and proceedings thereto may be served.

Dated this day of one

thousand eight hundred and

Signed in the presence of )

)

*Memo : As no advertisement is now required the land
may t^e described in any manner sufficient for its proper
identification.

Caveats after Land is brought under the New System.

130. (3) Any beneficiary or other person claiming any estate or interest Caveat
in land under the new system, or in any lease, mortgage or encumbrance, ^uSSi
under the new system may lodge or have lodged in his behalf a caveat ^"'^!JLP®^
with the District-Registrar in the form in Schedule P (d) to this Act, or
as near thereto as circumstances will permit, forbidding the registration
of any person as transferee or owner of, or of any instrument affecting
such estate or interest either absolutely or until after notice of the inten-
ded registration or dealing be given to the caveator, or unless such instru-
ment be expressed to be subject to the claim of the caveator as may be
required in such caveat, [e)

184 GATXAT8.

{d) See Bub-sec. 8.

{e) An eqaiftable mortgagee might thus protect his rights
See Bole 17, Sch. S» sees. 26 and 117 ante, and notes to
sec. 68 and to sec. 122 ante.

SCHEDULE P.
Cavxat roBBiDDDio Rboxstbatiom or AMD Change ik OwmBSHiP ob ant

DbAUKO with EbTATB OB LVTBBBST Df LaND UMDBB THB

Kbw Btbtkm.

To the Distriot-Resisirar,—

Take notice that I, (insert name and <idditum) daim {tpeeify the estate
or interest claimed^ in (describe land) standing in the Begister Book in
the name of and I for-

bid the registration of any person as transferee or owner of or of any
instrnment affecting the said estate or interest, absolutely [or nntil 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 presence of )

D. B. to ISO* (4) Upon the receipt of such caveat the District-Begistrar shall

of^re^pt °^^^ ^ memorandum thereon of the date, hour and minute of the receipt

and notify thereof, and shall enter a memorandum thereof in the Begister Book and

shall forthwith send a notice of such caveat through the postoffioe or

otherwise to the person against whose title such caveat has been lodged ;

Compare sec. 76, and Rules 8, 9, 10, 18, 14, and 16, Sch.
S, sec. 26 ante.

Form op Notice to Cateateb.

(The usmil formal heading,)

To A. B. of (additiont as in the certificate) registered owner of the above
lands {or mortgagee, etc, as the case may be)

You are hereby notified that on the day of

A. D. 18 at , o*clock a caveat was filed by C.

D. of, etc, {as in caveat) forbidding registrations affecting your estate or
interests in the said lands, except subject to his claim as set forth in said

CAVEATS. 185

cayeai and the affidavit verifying the same ; and yoa are farther notified
that the said C. D. has given in the ooonty of

in Manitoba as his address or pla^ at whioh notices and pro-
ceedings relating to saoh caveat may he served.

Dated at the Land Titles Office, at this

of 18

Dittrict-RegUtrar,

ISO* (5) Except in the case of a caveat lodged by or on behalf of a bene- Such
fldary claiming under any will or settlement or by the District-Begis- upse afUr
trar, (/) every caveat lodged against an owner of land, mortgage or encom- ^"^^^^
brance under the new system shall be deemed to have lapsed upon the oaveator
expiration of fourteen days after notice given to the caveator that Buch^^^Q^*^
owner has applied for the registration of a transfer or other dealing, {g) o^aes.
unless before the expiration of the said period of fourteen days the caveator
or his agent appears before the court or a judge, or a judge in chambers,
and gives such undertaking or security or lodges such sum in court as such
court or judge may consider sufficient to indemnify every person against
any damage that may be sustained by reason of any disposition of the
property being delayed, or gives such security or lodges such sum in court
as such court or judge may consider sufficient to answer the cost of the Court or
caveatee in such proceedings as may be taken under such caveat, then ax terms
and in such case such court or judge may by order direct the District- ??y^]^^
Begistrar to delay registering any dealing with the land, mortgage or continue,
encumbrance for a further period to be specified in such order, or may t^if oF *^^*
direct the caveator to take proceedings under the rules in Schedule B caveator.
hereunder or may make such other order as may be just.

(/) Caveats entered by order of the Court or by the
District-Begistrar under sub-sec. 5 of sec. 68 ante, may be
set aside by the Court or a Judge on a special application
(sub-sec. 15 infra). An order setting any other caveat aside
may be obtained under sub-sec. 12 infra.

The Crown may have rights decreed on the ground of
escheat and an injunction against dealings being registered :
Attomey-Oeneral v. Hoggan, 8 V. L. R. (E.) Ill ; an
injunction against registrations issued in Archibald v.
Archibald^ 6 V. L. B. (E.) 180; and in Australia there
appear to be many cases in which the Courts have heard
suits and granted restraining orders and injunctions :
SiockdaU v. HamUton, 4 S. C. B. 818 ; 5 8. C. B. 180 ; Ex

186 CAVEATS.

parte Hamilton, 8 8. G. B. 811 (New South Wales) ; Ex
parte Bissel^ 5 V. L. B. (L.) 68 ; Hodgson v. Hunter, 8 A.
J. B. 18 ; Geragkty v. Ruisell, 5 A.. J. B. 89 ; and the pro-
cedure may apparently be by Bule ntn, Ex parte Ounn, 8
Y. L. B. (L.) 86. After the lapse of caveat it was held
Ex parte Aylwin, 4 V. L. B. (L.) 116, that the Court or a
Judge had no power to grant an order restraining the
Begistrar from bringing the land under the Act ; but see
sub-sec. 14 infra.

As to liens, etc., see sec. 117 and notes ante.

ig) This notice may be in a form similar to the estoppel.
Notice under sec. 52 ante ; it may be given officially by the
District Begistrar or by the caveatee personally. It may
be served as provided by sees. 58-65 ante, or an order for
substitutional service may be obtained under Bule 14, Sch.
B, infra.

See Bules 1, 2, 6 and IS, Sch. B, infra.

D. B. not to 130* (6) So long as any caveat remains in force prohibiting the transfer
^g while ' ^^ other dealing with any land, mortgage or encombranoe, the Distriot-
caveat in Registrar shall not enter in the Register Book any memorandom of tranB>
leM sob- f er or other instrument purporting to transfer or otherwise deal with or
ot^efl^r'B ft^M^ ^^6 land, mortgage or encumbrance, in respect to which such caveat
ri^ts. ig lodged, unless such instrument be expressed (A) to be subject to the
claim of the caveator as may be required in such caveat.

(h) Special mention of the caveat should be made in the
instrument.

Entry of (7) An entry shall be made by the District-Registrar in the Register of
apse, e . ^<^^^ withdrawal, lapse, or removal of any caveat or of any order made by
the court, (t)

(i) This entry is made on the suggestion of the party
interested in having the caveat removed and the registra-
tion of dealings resumed. See sub-sees. 4 ante and IS
infra. A fee of 60c. is payable before such entry.

Gavbats Gemerallt.

Caveats 180. (8) Every caveat filed with the District-Registrar shaU state the

^^^.^ name and addition of the person by whom or on whose behalf the same im

CAVEATS. 187

liled and (ezoept in the case of a caveat filed by order of the court or by
the District-Begistrar) (j) shall be signed by the caveator, his attorney or To be
agent {k) and shall state some address or place within the Province of
Manitoba at which notices and proceedings relating to snch caveat may
be served and shall be supported by an affidavit or statutory declaration Affidavit or
stating the nature of the title (/) under which the claim is made, and that |q support,
in the belief of the deponent the person by whom or on whose behalf the
caveat is filed has a good and valid claim upon the said lands or upon the
estate, interest or charge intended to be affected by the same and that the
caveat is not filed for the purpose of delaying or embarrassing the appli-
cant or registered owner or any person claiming through him, which affi- Fonn of
davit or declaration may be in the form in Schedule Q hereunder.

(j) See sub-sec. 15 infra.

(k) In Victoria (Australia) proof of agency is required
except where the agent is a solicitor {A'Beckety 82).

{I) In May, 1889, it was held (Bain, J.) in McArthur v.
OktsB, 6 Man. L. B. 224, where the affidavit did not state
the ^ natare of the title ' that the caveat had been imper-
fectly filed, and should be removed from the Begister, as
the filing of a caveat complying with the Statute was a con-
dition precedent to the jurisdiction of the Court to enter-
tain a petition ; but subsequently. Re McArthur and OlasB,
6 Man. L. B. 801, Mr. Justice Eillam decided that it was
not necessary to file affidavits in support of a petition based
upon a caveat in the Land Titles Office, and that cause
may be shewn by argument upon the allegations of the
petition, or by affidavits; after which the judge may, if
necessary, permit the petitioner to adduce evidence, or may
direct an issue, and made the following remarks :

'^ I cannot find that it has ever been decided whether
affidavits or other evidence should be filed with the petition
of the caveator or before the caveatee is asked to show
cause. Bule 5 of Schedule H of the Act of 1887 seems to
contemplate that at some stage affidavits may be filed in
support of the petition, but it speaks of this as a contin-
gency only. Bule 4, however, provides, that ' If the

188 CAYBAT8.

caveatee shall not appear on the day appointed for the
hearing, the court may, upon due proof of the service of
such petition, make such order in the absence of the
caveatee, either for the establishment of the right of the
caveator or as the nature and circumstances of the case
may require, as to the Court may seem meet.' Thus, it is
evident that, unless cause be shown, it is unnecessary to
support the petition by evidence. The affidavit required
by sub-section 11 of section 87 (Sch D, 1887} to be filed
with the caveat is sufficient to show the good faith of the
caveator, and is evidently demanded to guard against the
abuse of the practice, so that for that purpose there is little
reason to require the petition to be supported by evidence
before allowing the caveator to have an issue tried or some
other investigation ordered."

** The practice which I shall adopt hereafter will be to
hear the petition without affidavits or other evidence in
support if none be filed ; to allow cause to be shown, by
argument that the case made by the petition is sufficient
to show a right, or by affidavit either directly meeting
allegations of fact in the petition or showing fresh facts,
and, upon thus learning the questions in dispute, to allow
the petition to be supported by affidavits or other evidence,
or, without such, to direct the trial of an issue, direct
inquiries or otherwise deal with the matter. This wUl, of
course, not prevent a petitioner from filing affidavits or
other evidence in advance, if, knowing the cause proposed
to be shown he shall deem this advisable as saving expense
or otherwise simplifying the matter."

The provisions of this sub-section, however, seem as a
rule applicable to ^'caveats generaily,** and require good faith
and grounds for belief in the validity of his title to be
shewn by every caveator upon filing his caveat, and it is
probable that a refusal on the part of the District Begistrar

CAVEATS. 189

to receive a caveat upon the grounds mentioned in the
judgment of Mr. Justice Bain would be upheld as in con-
formity with the policy of the Statute.

Schedule Q refers to the caveat as annexed to the affidavit.

SCHEDULE Q.
FoBM or ArFiDiTrr in Support op Caveat.

I, A. B., make oath and say (or solemnly declare) as follows :

(1) The land affected by the caveat dated the day of

hereunto annexed, lodged by me with the District -Registrar,

is the land described in the schedule hereunto, and my interest in the

«aid lands entitles me to object to any disposition of the said land being

aiade without my consent, and the nature of my interest is as follows :

{Here state particulars of caveator* t interest,)
Or substitute for the above, as the case may require the following :

I, A. B., make oath and say for solemnly declare] as follows : — I claim the
land [or an interest therein, as the case may be] mentioned in the caveat
hereunto annexed and described in the schedule hereto [here stat-e the
nature of the estate or interest claimed and the grounds upon which such
claim is founded] .

(3) I believe that I have a good and valid claim upon the said lands, and
I say that Ibis caveat is not being filed for the purpose of delaying or
embarrassing the applicant or any person claiming under him.

The schedule above referred to

(Here insert ordinary description of land to be affected by caveat.)

(9) The caveator may, by notice in writing to the District-Registrar (m) Caveator
withdraw his caveat at any time, but such withdrawal shall not prejudice time^ti?-^
the power of the court or judge to make an order as to payment by the draw,
caveator of the costs and damages of the caveatee incurred prior to the
recipt by the caveatee of notice in writing (n) of the withdrawal of such
caveat.

(m) This notice has the effect of prejudicing the claim
of the caveator to the lands and consequently should be
attested and verified by a witness in the same manner as
other instruments intended for registration. See sec. 74
ante. It should be signed by the caveator or by some per-
son specially authorized to do so under a registered power
of attorney. See sees. 110 and 111 ante.

190 CAVEATS.

(n) A copy of the notice of withdrawal might be served
on the caveatee before it is filed.

If caveat (10) Any person other than the District- Registrar lodging or continuing

J^JijJ ^ any caveat wrongf ally and without reasonable cause shall be liable to make

oompen- compensation to any person who may have sustained damage thereby, and

be ordered Buch compensation may be recovered by proceedings at law if the caveator

to be made, ^^^g withdrawn such caveat and no proceedings shall have been taken by

the caveatee as herein provided, but if proceedings have been taken by

the caveatee then such compensation shall be decided by the court or judge

before whom proceedings have been taken.

When cave- (11) 10 very caveat except a caveat filed by the District-Registrar or by

niai deemed

to have order of the court (o) shall be deemed to have lapsed after the expiration

lapsed. qI ^y^q time limited by this section, ( p) in such case for proceeding there-
under, unless the person by whom or on whose behalf the same was
lodged shall within that time ( p) have taken the prescribed proceedings
to establish his title to the land, mortgage or encumbrance, or his right
as set out in such caveat, and shall have filed with the District-Registrar
evidence to his satisfaction, of such proceedings having been taken, (g)

(o) See sub-sees. 15 and 16 infra.

{p) See sub-sees. 2 and 6 ante. But the time may be
extended by order of a Judge, sub-sec. 16 infra.

iq) See Rules 2 and 18, Sch. B infra.

The practice of the Land Titles Offices is to require th&
petition filed under Bule 2 to be certified as to filing by the
prothonotary or clerk of the Court, or the filing proved by
affidavit when the petition is produced for registration, and
this filing is received as sufficient proof of proceedings
having been taken.

Applicant (12) In the case of any caveat filed (except a caveat filed by the District-
may apply Registrar or by an order of the court) (r) the applicant or registered

to have owner may, at any time within the time limited by this section (f) for the
caveat dis- j* j j \ /

charged, caveator to take proceedmgs thereunder, apply to the court, or a judge, or
a judge in chambers, for a summons calling upon the caveator to show
cause why such caveat should not be withdrawn or discharged, and upon
the return of such summons the said court or judge, upon proof that such

Procedure. Caveator has been duly served with such summons and upon such evi-
dence as the said court or judge may require, may, in the absence of such
caveator or otherwise, make such order in the premises and as to costs as

CAVEATS. 191

to sach court or jadge may seem just ; and where a question of right or
title requires to be determined the proceedings followed shall be, as nearly
ae may be, in conformity with the rules of court in relation to civil cases, (t)

(13) In every case in which a caveat shall have lapsed or been withdrawn, After dis-
or shall have been discharged or withdrawn by order of the court, or a Sl^veat D.B.
judge, the District- Registrar may at once proceed, as if no caveat had ^'^ P'^
been filed (u) unless in the meantime he shall have been served with an

order of the court or of a judge or judge in chambers, staying such pro-
ceedings.

(r) See sub-sec. 15 infra,
(s) See snb-secs. 2 and 5 supra.
(t) See sec. 127 and notes ante,
(u) See sab-sec. 7 supra.

The practice of the Land Titles Offices is to require the
lapse or withdrawal to be entered across the memorial of
caveat on the application before proceeding with the inves-
tigation of title ; and in cases where the certificate of title
has been issued, a similar entry is required in the register
before dealings can be registered, except subject to the
caveat. {See Appendix, sec. 43, Act of 1890.)

(14) After a caveat shall have lapsed or been withdrawn, or discharged Second
except as in this section mentioned, it shall not be lawful for the same to1^flu!d
person, or for any one on his behalf to lod^e a further caveat, or file a li$ fJ^^P^ ^7
pendens (r) under any proceeding in court in relation to the same matter, order of
bat nothing herein contained shall prejudice the right of the District- i°^®'
Registrar to enter any caveat under the powers vested in him by this

Act, (w) and a judge or judge in chambers may, if he thinks proper, upon
application made to him for that purpose, and upon such terms as to
costs, or otherwise as he may consider just, order that a new caveat be
fUed, and such order shall fix a time within which the caveator must
proceed upon such caveat under the rules in schedule B to this Act. (x)

(v) As to lis pendens see sec. l&i post.

There is no provision prohibiting the filing of a caveat
after a certificate of lis pende^is has been discharged.

(w) See sec. 68 (5) ante.

(x) A caveat filed by order of a Judge under this sub-
section would lapse as a matter of course on the expiration

192 CAVEATS.

of the time limited, unless an order under sub-sec. 16 infra
be obtained extending the time fixed by the first order per-
mitting a second caveat to be filed.

Compare sub-sees. 2, 6, 7, 8 and 11 supra, and the next
following sub-section.

(15) In the oase of a caveat filed by the District-BegiBtrar or by order
of ooort, the applicant or registered owner may, if he so desires, apply to
the court or judge or a judge in chambers for a sammons calling apon
the person on whose behalf such caveat has been filed to show cause why
such caveat should not be withdrawn or discharged, and in case the
person on whose behalf such caveat has been filed is an infant, lunatic,
or person of unsound mind, without guardian or committee, the said
court or judge may direct in such summons that it be served on the offi-
cial guardian of the court or some other person to be named therein, and
may impose upon the applicant such terms as to the costs of such guar-
dian or other person appointed by such order as may seem just, and upon
the return of such summons, if the same shaU appear to have been duly
served upon the proper persons, such court or judge may make such
order in the premises either as to dismissing such summons discharge-
ing or withdrawing such caveat, or directing any of the parties to oom-
mence proceeding under the rules of Schedule R to this Act, as to the said
court or judge may seem just and proper.

Extension (16) At any time before the expiration of the time limited for p roceed-
proceedii^ ^°K upon a caveat (y) upon application on behalf of the caveator after notice
on caFeat. to the caveatee, the court or a judge thereof for sufficient cause shown,
and subject to such conditions as may seem proper, may extend the time
for proceeding under such caveat for a further period to be specified in
the order made upon such application which shaU forthwith be lodged in
the Land Titles office and filed with the caveat.

(y) See sees. 2 and 5 supra, and Rules 2 and 18, Sch. B.
infra. . See sec. 48, Act of 1890, in Appendix.

Under the provisions of sec. 24 of the Victorian Statute
giving the Court or Judge restraining powers, the Court
was held to have jurisdiction to make an order although
no suit or action had been instituted, at least where no
other remedy was open to the caveator; The procedure
may be by rule nisi and absolute : Ex parte Qunn, 8 Y. L.
B. (L.) 86 ; ExpaHe Beissel, 6 V. L. B. (L.) 68 ; Hodgson
V. Hunter, 8 A. J. B 18.

CAVEAT PROOEDUBE. 193

Compare sec. 107 of the Act of 1885 as amended in 1887
and 1888.

SCHEDULE R.
Rules and Reoulations for Procedure in the Matter of Caybats.

1. The oaveator, for the purpose of establishing hxS claim, may take FetitioD to
proceedings by way of petition to the court. Such petition shall be filed ^eea^
with the prothonotary, and shall contain as concisely as may be, a state-
ment of the material facts on which the caveator relies. Such statement

shall be divided into paragraphs numbered consecutively, each paragraph
containing as nearly as may be a separate and distinct allegation, and
shall state specifically what estate, interest or charge the caveator claims,
and the court or a judge thereof shall, upon the filing of such petition,
appoint a time for hearing the same. Such hearing may take place be-
fore the court or a judge thereof, or the District-Registrar, or such other
person or persons as the said court or a judge may direct, and such hear-
ing may be heard partly by one and partly by one or more persons as the
nature and circumstances of the case may require, as to such court or
judge may seem meet.

In Clarke v. Scott, 5 Man. L. R. 281, it was held : That
the petition was defective in not showing the petitioner's
claim of title, and that the petition need not show upon its
face that it is filed in time. See note Z, p. 187 supra.

2. The caveator shall cause a copy of such petition to be filed with the PetitioD to
District-Registrar, and a copy with notice of the time appointed for hear- JliJJS^ *"*^
ing shall be served, three days at least before the time appointed for the
hearing of the said petition, on the caveatee.

3. On the day of hearing, the caveatee is personally or by counsel to Hearing,
show cause, and if necessary by affidavit, why the prayer of such petition
should not be granted.

4. If the caveatee shall not appear on the day appointed for the hear - Order mav
ing, the court may, upon due proof of the service of such petition, make absence of"
such order in the absence of the caveatee, either for the establishment of caveatee.
the right of the caveator or, as the nature and circumstances of the case

may require, as to the court may seem meet.

5. Upon the hearing of the petition and upon reading the affidavits, if
any filed in support thereof, and any documents produced to the court and
hearing what may be alleged on behalf of the caveatee and caveator, the
court may, if it shall think fit, dismiss the petition ; or may make an
order establishing the right of the oaveator or directing any inquiries to

HAN.L.A. 18

194 CAVBAT PKOGSDURE.

te nudo or other prooeedingB taken for the purpose of asoertainiDg the
ri^te of the parties and for that purpose may adjourn the hearing and
order the petition to be served on any other person or persons the oouit
may consider neoessary, and every person so served shall attend at the
adjourned hearing of the petition, and be subjected to sudh further order
as the court may cause to be made.

See Bale 14 infra as to substitutional service.

What order 6. The court may, if it shaU think fit, direct any question of fact
™3^ brought before it to be decided before a judge thereof, and for that pur-

pose may direct an issue to be tried wherein the caveator shaU be plain-
tiff and the caveatee defendant. And the said court shall direct when and
See see. S7, ^here the trial of such issue shall take place ; and the court may also
a^m' dS?' ^^'^^^ ^ parties to produce all deeds, books, papers and writing in their
or in either of their custody or power, on oath before the District-Regis-
trar or prothonotary, or such other officers of the court as the court may
direct, on a day to be named, and each party shall have liberty to inspect
the same and take copies thereof at his own expense and such of them as
either party shaU give notice to be produced at the trial shaU be produced
accordingly, and the issue may be in the form following : —

**In the Queen's Bench.

••Manitoba, ) "The day of

**To Wrr : / in the year of our Lord 18

Form of «*Whbbbab A. B., affirms and G. D. denies (here 9taU the questiom of fact

^'^^ to he tried,) and it has been ordered by (the C. J. or other judge, as the

case may be) that the said questions shaU be tried by a judge).

•'Therefore let the same be tried accordingly.*'
And in case the parties differ upon the questions to be tried, the court
may either settle the same or refer them to the master.

Where a certificate of title was applied for a caveat was
filed and an issue ordered to be tried with the caveator as
plaintiff and the caveatee as defendant. The caveatee
(applicant for registration of title) applied for security for
costs as the caveator resided in Ontario, and the summons
was dismissed, Taylor, 0. J., holding that the applicant for
registration of title was in reality the plaintiff and could
not obtain security for costs : McCarthy v. Badgley^ 6 Man^
L. R. 270. On the analogy of interpleader proceedings com-
pare Belmonte v. Aynard, 4 0. P. D. 221, 862, and Me-

OAYEAT PROCEDURE. 196

PhilUpB y. Wolff 4 Man. L. B. 800, which latter cases were
followed in McCarthy v. BadgUy. See Rule 10, infra.

A disputed question of fact will not be tried upon affidavit,
but an issue directed ; Clarke v. Scott y 5 Man. L. B. 281 ;
in this case the form of issue was given.

7. If the coart shall find that the caveator is entitled to all or some of May de-
the relief claimed by him, the order of the coart shall declare what is the ^tate of
estate, interest, lien, or claim to which the caveator is entitled, and the caveator.
<x>art may make such order as the circumstances may require, and shall

have power to afford the caveator the same relief as in an ordinary action.

8. Every order of the court made under these rules shall have the same Order to
effect as a judgment or order of the court given or made in any action : of judg-^
and the District-Registrar shall make such entries in the Register Book meut.
and do such things as may be necessary to give effect to the order of the
<xiiirt.

9. If, at the hearing of such petition, it shall appear to the court that Mav order
for the purpose of justice it is necessary or expedient that an action should brought.
be brought, the court may order such action to be brought accordingly,
subject to such terms as to the costs or otherwise as may be thought
proper.

10. In all proceedings of the court, either by the caveator or caveatee, Costs,
the court may make such order as to the costs of the proceedings in the
court and incidental to filing the caveat as the court shall see fit.

No costs of appeal will be allowed where the case is dis-
posed of on a point which has not been argued ; Clarke v.
Scotty 5 Man. L. B. 281. As to charging order see Wishart
V. Bonneauy 5 Man. L. B. 182. See note to Bule 6, re
McCarthy v. BadgUy, as to securty for costs, ubi supra.

11. The court, or a judge thereof, may, without prejudice to the ezer- May stay
cise of any other power of the court upon the application of any person \n9^
interested in any land, make an order restraining for a time or until the
occurrence of an event to be named in such order, or generally until f ur-

iher order, the registration of any dealing with land and may impose any
terms and conditions upon making such order.

12. The court, or a judge thereof, may discharge any such order with or May dis-
without costs and generally act in the premises in such a manner as orite?
the justioe of the case requires; and the District-Registrar, without being

a party to theprooeedings, upon being served with any order or copy there-
<if , ahall obey the same.

196 LIS PflNDENS.

Petitioii to 13. Unless the petition, filed nnder such caveat, shall have been serred
within 80 on all proper parties within thirty days next after it has been filed with
^y** the District-Registrar or within snoh farther time as a Jndge in

Chambers may have ordered, any person interested may apply to a Jndge
in Chambers, for, and such Judge in Chambers may grant an order dis-
missing and discharging such petition and caveat for want of prosecution
and such dismissal shall be deemed to have been a dismissal on its merits^

Bubstitu- 14. When service of any proceedings under these rules is required to be
yIm. made upon any person who cannot after due diligence be found within

the Province of Manitoba, a Judge in Chambers may, in a proper case,
order that service of such proceedings may be effected substitationally
in such manner as to such Judge may seem proper, and such substitu-
tional service shall have the same effect as personal siervice upon the
person intended to be affected thereby.

Vide Rule 5 supra. New rules added in Appendix.

Note : The Lieutenant-Governor in Council has power
to alter the rules, and to make rules in cases left unprovided
for by the Act. Vide sec. 26 ante.

Lii Pemlfn*.

hit pendent. 131* Any party to a suit, or his solicitor, or any person claiming to be
interested in such suit may, except as hereinbefore provided, file with the
District-Registrar a Us pf/u/^'f^o affecting lands, mortgage or encumbrance,
subject to the new system, and from and after the filing of such lit pen^

effect of dent with the District-Registrar the same shall operate as a caveat
^' against the transfer of the land, mortgage or encumbrance mentioned in

such lit pendent^ and no transfer or other dealings with such land, mort-
gage or encumbrance shall be made except subject to the right or interest
of such party or person claiming to be interested in such suit as aforesaid,
unless said lit pendent shall have been previously discharged, or the bill
of complaint or other proceeding in court dismissed by an order of the
court or judge thereof and duly filed with the District-Registrar.

A certificate of lis pendens cannot be filed after a caveat
shall have lapsed or been withdrawn or discharged except
upon an order of a Judge made on special application as
provided by sub-sec. 14 of sec. 180 ante. There is no pro-
vision prohibiting the filing of a caveat after the termina-
tion of a suit respecting which a lis pendens has been
registered, nor the filing of any number of such certifi-

A8BURAN0E FUND. 197

cates referring to successive suits in relation to the same
matter.

This clause was not in the B. P. Act of 1885, but was
introduced by sec. 88 of the amending Act of 1887.

AsBUBANCE Fund.

188« Any person deprived (a) of land or of any estate or interest in Compen-
land in consequence of frand or misrepresentation in bringing of such party de-
land under the new system, or in the registration of any other person as f^^^^'
proprietor of snch land, estate or interest, or in consequence of any error, frand,
omission or misdescription of [b] any certificate of title or in any entry ^^""*^' *
•or memorial in the Register, (c) may bring and prosecute an action at law
for the recovery of damages against the person by whose fraud, error,
omission, misrepresentation, misdescription or wrongful act such person
has been -deprived of his land or of his estate or interest therein, (cf) The Bringing of
bringing or prosecuting of an action as aforesaid shall not prevent pro- to prejo-
ceedings being taken against the District-Begistrar in respect of any loss ^^^^^^
or damage not recovered in such action ; provided that no action shall in
«uch case be brought against the District- Registrar without first proceed-
ing as above provided, unless authorized by the fiat of the Attorney-Gen-
•eral. (e)

(a) As to what constitutes a deprival, see Bonnin v.
Andrews, 12 S. A. L. R. 168.

(fc) No doubt intended for " in any certificate of title.*'

(c) Qiuere, whether errors, omissions, etc., in a certificate
of charges, or a certified copy or a provisional certificate,
*would entitle to compensation a person to whom loss or
•deprivation of property occurred in consequence, of such
'error, etc. ; see sees. 66, 68 (7), 109, and Bule 20 Sch. S,
see. 26 ante ; also sees. 146 and 147 post ; or would the
recourse be against the fund only as provided in sec. 185

JMSt?

(d) As to the effect of improperly lodging liens, etc.,
^compare decision as to Ji. fa. and sheriff's deed lodged
xinder Victorian Statute in Hassett v. Colonial Bank of
Australasia, 7 V. fj. B. (L) 880. It does not appear to be
essential that the person against whom action is brought

198 ASBITBAliCB FUND.

has been registered as proprietor. Fotheringham y. Archer,
6 W. W. and A'B. (L) 95. Nor does it seem that fraada-
lent misrepresentation is necessary . Per Higginbotham, J.»
in Hassett v. Col. Bank of Australasia, 7 V. L. R. (L) 888.

(e) Sec. 28 ante indemnifies officers against liability for
bona fide acts or omissions in the exercise or supposed
exercise of powers under the Act. See Appendix.

Section 186 post provides for actions against the District-
Registrar as nominal defendant in cases of omissions,
mistakes or misfeasances by him or any of his officers or
clerks (i.e., officials appointed to the Land Titles Offices, see
sees. 6f 6 and 7 ante) made in a similar bona fide manner.

The case of fraud or collusion by officials does not appear
to have been clearly provided for.

All such actions may be bound by limitations or by
estoppel, see sec. 52 ante and 187 post.

Purchasers, mortgagees and occupants in good faith, and
for valuable consideration are protected by sees. 64, 65 and
67 ante and 188 post ; and knowledge of a trust or
unregistered interest is not of itself to be imputed as fraud ;
see sec. 85 ante.

As to when the assurance fund is liable and the extent ta
which it is liable, see sees. 184 and 189 post. There is no
proviso as to what damages shall be recoverable as in the
Victorian Land Transfer Statute, sec. 144 ; consequently
actual damages would be assessed under this section.

PoTchasera 183* Nothing in this Act contained shaU be so interpreted as to
sagees pro- leave, subject to action for recovery of damages as aforesaid, or to action
■SchciipoB ^^ ejectment, or to deprivation of the estate, or interest in respect to
which he is registered as owner, any purchaser or mortgagee bona fide for
valuable consideration of land under the new system, on the plea that hia
vendor or mortgagor may have been registered as proprietor, through
fraud or error, or may have derived from or through a person registered
as owner through fraud or error, and this whether suchfraudor error shall

ASSURANCE FUND. 199

eonfliBt in wrong description of the bonndariee or of the paroels of any
and or otherwise howsoeyer.

Compare sees. 64, 65, 67, 77 and 86 ante^ and sec. 148
poBt.

The effect of the corresponding section in the Victorian
Statute, (sec. 146) is commented on per Gwynne, J., in
Brady v. Brady, 8 8. A. L. R. 219, 280.

184* In case the person against whom snch action for damages is If r«ns-
directed to be brought as aforesaid shall be dead, or cannot be found within owner dead
the Province, then in such case it shall be lawful to bring such action ^ «^°°S^
for damages against the District-Begistrar as nominal defendant for the aotion
purpose of recovering the amount of the said damages and costs against ^[b^ils
the Assurance Fund, and in any such case, if final judgment be recovered, ?^P^^ ^
and also in any case in which damages may be awarded in any action, as ^^^^""^^
aforesaid, and the sheriff shall make a return of nulla bona^ or shall certify
that the full amount, with costs awarded, cannot be recovered from such
person, the Provincial Treasurer, upon receipt of a certificate of the court
before which said action was tried, shall pay the amount of such dam-
ages and costs as may be awarded, or the unrecovered balance thereof, as
the case may be, and charge the same to the account of the Assurance
Fund.

As to limitation of actions, see sec. 188 post.
As to liability of assurance fund, see 189 post.
See note (e) to sec. 182 ante.

135* Any person sustaining loss or damage (a) through any omission, Action for
mistake or misfeance of the District-Registrar, or any of his officers or against"
clerks in the execution of their respective duties, under the provisions of ^*^^.
this Act, (so far as applicable to the new system) and any person deprived defendant
of any land or of any estate or interest in land through the bringing of the
same under the provisions of the new system or by the registration of any
other person as owner of such land, or by any error, omission or misdes-
cription in any certificate of title, or in any entry or memorial in the
Begister Book, and who by the provisions of this Act is barred from
bringing action of ejectment or other action for the recovery of such
]and,(6) estate or interest, may, in any case in which the remedy by action
for recovery of damages as hereinbefore provided is barred, (c) or when
any damage has been sustained through any omission, mistake, or mis-
feasance of the District-Registrar in the granting of a certificate of
charges provided for in Section one hundred and nine (109), (d) bring an

200 A88URANCE FUND.

action against the DiBtrict-BegiBtrar as nominal defendant for reooTcry
of damages ; and in case the plaintiff recovers final judgment against
BQoh nominal defendant, then the court or judge before whom such action
may be tried, shall certify to the Provincial Treasurer the fact of such
judgment and the amount of damages and costs recovered and the said
Treasurer thereupon shall pay the amount of the said damages and costs
to the person recovering the same, and shall charge the same to the
account of the Assurance Fund. Provided al ways, that notice in writing of
every such action, and of the cause thereof (e) shall be served upon the
Attorney-General of the Province and also upon the District-Registrar
one calender month at least before the commencement of such action. (/)

Pro. Treas. (a) The Provincial Treasurer shall pay the amount of any judgment
amount of obtained puyable out of the Assurance Fund, notwithstanding that there
judgment, may not be a sufficient sum to the credit of the Assurance Fund, {g)

(a) In Victoria it has been held that notwithstanding the
substitution of the words " sustaining loss " for the words
'* deprived of land" (see sec. 182 ante) the meaning is the
same, and they apply solely to the deprivation of an interest
previously possessed. Where an owner was registered
under the Act and the Registrar omitted to endorse the title
deeds as required by the Victorian Land Transfer Statute,
(compare sees. 76 and 114 of the Manitoba Statute ant«) the
owner getting back the deeds was by this omission enabled
fraudulently to conceal the fact that the land bad been
transferred to a purchaser under the statute and borrowed
money on the security of the worthless deeds. The lenders
sued the Registrar under the corresponding section (sec.
146) of the Victorian Statute, and it was held by the Chief
Justice and Holroyd, J. (Higginbotham J. dissentiente) that
as the lenders took no interest in the land under the worth-
less security, they had not been deprived of an interest,
and had therefore sustained no loss within the meaning of
the section. Oakden v. Gihbs, 8 V. L. R. (L.) 380. The effect
of sections dealing with the liability of the assurance fund
is discussed in this case.

(h) See sec. 67 ante as to ejectments.

ASSURANCE FUND. 201

(c) The word used in the Victorian Statute ia "inappli-
cable.'*^ See sees. 182-184 ante as to these remedies. An
action should not be brought against the Begistrar where
one will lie against any other person. Fotheringham v.
Archer, 5 W. W. & A'B. (L.) 95.

(d) Compare sec. 182 and note (c) in pede,

{e) As to fiat of the Attorney-General see sec. 182 ante.

( f) See note (e) to sec. 182 ante.

(g) As to formation of the fund see sees. 140 and 141
post. As to recovery of money paid see sec. 188 post.

18<l* If in any snch action jndgment be given in favor of the nominal When
defendant, or the plaintiff discontinue or become non-snit, the plaintiff pay co«ts.
shall be liable to pay the f nil costs of defending such action, and the same
when taxed shall be levied in the name of the nominal defendant by the
like process or execution as in other actions on the case.

187* No action for recovery of damages sustained through deprivation Limitation
of land, or of any estate or interest in land as hereinbefore described (a) action.
shaU lie or be sustained against the District-Registrar, or against the
Assurance Fund, or against the person by whot*e fraud, error, omission,
misrepresentation, misdescription or wrongful act, the person entitled to
the land or some estate or interest therein has been deprived thereof,
unless such action be commenced within the period of six years from the
date of such deprivation : Provided, nevertheless, that any person being Proviso in
under the disability of infancy, or unsoundness of mind at the time of ability.
such deprivation, may bring such action within six years from the date on
which snch disability shall have ceased ; (6) and the plaintiff in any such
action, at whatever time it may be brought, or the plaintiff in an action
for the recovery of land, shall be non- suited in any case in which the
deprivation complained of may have been occasioned through the bring-
ing of such land under the new system, if it be made to appear to the
satisfaction of the court before which such action shall be tried that such Ab to per-
plaintiff or the person through or under whom he claims title had notice, ^^g notice,
by personal service or otherwise, (c) or was aware that application had
been made to bring such land under the provisions of this Act, and had
wilfully or oollusively omitted to lodge a caveat forbidding the same or
had allowed such caveat to lapse, (d)

(a) See note a to sec. 132 ante and compare wording
of the first lines of that section and of section 184 ante; see
also note a of the latter section.

202 AssuBANcas Finn).

(6) Compare 46 & 47 Vic. cap. 26.

{d) See sec. 180 and Bales Sch. B ante.

B«eovery 18§* Whenever any amount has been paid by the Proyincial Trea-
paid by surer as aforesaid, on account of any person who may be dead, such
Pro. Treas. amount may be recovered from the estate of such person by action
against his personal representatives in the name of the District-Registrar ;
H fH"^^ t ^^^ whenever any amount has been so paid on account of any person who
of Pro- may have absconded, or who cannot be found within the Province, and
^^^' may have left any real or personal estate within the Province, it shall be

lawful for the said court or a judge thereof, upon the application of the
District-Registrar, and upon the production of a certificate signed by the
Provincial Treasurer oertifying that the amount has been paid in sat's-
faction of a judgment against the District* Registrar, as nominal defend*
ant, to allow the District-Registrar to sign judgment against such person
forthwith, for the amount so paid, together with the costs of the appli-
cation ; and such judgment shall be final and signed in like manner as a
final judgment, by confession or default in any adverse suit and execn-
DTOMrtv ^^^^ ™^^ issue immediately ; and if such person shall not have left real
insufflctont or personal estate within the Province sufficient to satisfy the amount
daim. ^ '^^ which execution may have been issued as aforesaid, it shall be lawful
for the District-Registrar to recover such amount, or the unreoovered
balance thereof, by action against such person whenever and in such
manner as may be possible.

See sec. 184 ante. See Appendix, Act of 1890» sec. 84.

AssTuraDce 189* The Assurance Fund shall not, under any circumstances, be liable
liable in for compensation for any loss, damage or deprivation occasioned by tlie
caior" breach by a registered owner of any trust, whether express, implied or
constructive ; nor in any case in which the same land may have been
included in two or more grants from the Crown ; nor shall the Assurancfr
Fund be liable in any case in which loss or deprivation has been occa-
sioned by any land being included in the same certificate of title with other
land through misdescription of the boundaries or parcels of any land,
unless in the case last aforesaid it shall be proved that the person liable for
compensation and damages is dead, or has absconded, or the sheri£F shall
certify that such person is unable to pay the full amount and costs
awarded in any action for recovery of such compensation ; and the said
fund shall be liable for such amounts only as the sheriff shall fail to
recover from the person liable as aforesaid.

See last paragraph note e to sec. 182 ante.

ASSURANCE FUND. 208

As to actions against the Assurance Fund the Queens-
land Boyal Commission in 1879 reported as follows : —

'^ S2. Our attention was directed to the difficulties which
at present stand in the way of any person seeking recourse
to the Assurance Fund. No claim has yet been established
against that fund, nor, while the law remains unaltered, is
it probable that any will be established, inasmuch as the
right of redress is limited to cases in which a man is
deprived of land, and all right of recourse is barred after
the expiration of six years from the deprivation — a period
which is likely to elapse before the error or fraud is dis-
covered. We think that the right of recourse to this fund
should be extended to all cases in which a man has
sustained loss by reason of any entry made in the Register
Book, by which he has been prejudiced, or by reliance on
which he has been misled, and that the time for bringing
a claim against it should be extended to that now allowed
by law for bringing actions of ejectment."

140* Upon the first brining of land nnder the new syBtem and also Commis-
upon the registration of the title to an estate- of freehold in possession of ^^^ ^^'
land under the new system, derived through the will or intestacy of a land,
previous owner, or under any settlement or assignment in bankruptcy,
there shall be paid one-tenth of one per cent, in case of an original gran-
tee where no transaction or instrument affecting the lands has been regis-
tered except mortgages or leases ; but in other cases one-quarter of one
per cent, of the value thereof.

In the Land Titles Offices this section is construed as
permitting the lower rate of commission to be charged after
registrations appear upon the abstract only in cases where
no more than one mortgage or one lease has been regis-
tered.

141* All sums of money so received as in last section mentioned shall Monevs to
be paid to the Provincial Treasurer, who shall from time to time invest fund,
such sums, together with all interest and profits which may have accrued
thereon, in such securities as may from time to time be approved of

204 GENERAL PB0TI8I0N8.

by the Lieutenant-6overnor-in-Gounoil, to constitate an AsBuninoe Fond
for the parposes herein provided.

Befer to sees. 44 and 45 of the Act of 1R90 in Appendix.

MiSCBLIANBOUS PBOViaiONS.

Informali- 149. No petition, order, affidavit, certificate, registration or other pro-
invalidAte. oeeding under this Act shall be invalid by reason of any informality or
technical irregularity therein or of any mistake not affecting the substan-
tial justice of the proceeding.

This results from the policy of the Act. Compare the
preamble to B. P. Act of 1885, referred to at page 1 ante.

I^irohaaei, 148* A purchaser or encumbrancee for valuable consideration shall
affected by not be affected by the omission to send any notice by this Act directed to
S^SS!*" ^' ^ ^^®° ^^ ^y *^® non-receipt thereof.

Compare sees. 52, 57. 98, 103, 106, 107, 108,'.180, (4) (9)
(12) (15) and (16) 181, and 185.

Implied 144« Every covenant and power declared to be implied in any instru*

may be ment by virtue of this Act may be negatived or modified by express

modified, declaration in the instrument or endorsed thereon, and in any action

for a supposed breach of any such covenant, the covenant alleged to be

broken may be set forth and it shall be lawful to allege that the party

against whom such action is brought did so covenant, precisely in the

same manner as if such covenant had been expressed in words in such

memorandum of transfer or other instrument, any law or practice to the

Aotion ou contrary notwithstanding ; and every such implied covenant shall have

nants. the same force and effect and be enforced in the same manner as if it had

been set out at length in such instrument ; and where any memorandnm

of transfer or other instrument in accordance with the provisions of this

Act is executed by more parties than one, such covenants as are by this

Act to be implied in instruments of a like nature shall be construed to be

several and not to bind the parties jointly.

Compare sees. 80, 88, 89, 91, 99, 108, 104 and 107 ante,
and G. S. M. cap. 1, sec. 7 (28).

Covenants and powers of an entirely different char-
acter from those implied under the provisions of the Act
may be introduced. Reviewing a similar provision of the
South Australian Act, Stow, J., observed that the object of
the section was to allow people to make their own tenancy
contracts so far as covenants are concerned. The implied
covenants and powers mentioned in the Act enable short

DBED8 — GOVENAMTS. 206

forms of deeds to be made, but the power of individuals to
make their bargains remains, BacknaM v. Reid^ 10 S. A. L.
R. 188, 189.

The provisions of this section taken with those of sub*
sec. 26 of sec. 8 and sec. 77 ante (q. v. with notes), permit
of almost unlimited variety in the character and covenants
of instruments which may be registered under the new
system. The clauses declaring implied covenants, in
addition to such as follow from the interpretation of terms
(sec. S ante), are sections 28, 77, 80, 88, 89, 91, 99, 108,
104 and 117, and as the covenants so to be implied derive
their potency from the statute, in all matters respecting
dealings with lands under the provisions of the Act, they
would probably have to be regarded as specialty contracts,,
and invariably construed as binding the parties severally,
not jointly. None of the instruments are *' deeds," how-
ever, and with regard to limitations would be affected as if
simple contracts only (a). If the implied covenants are
negatived or modified seals are absolutely necessary to give
them proper effect. There is a distinction made in sec. 28
between '' deeds " and other instruments, and sec. 97
declares in effect that the term *' mortgage *' used in the
Act is applied to instruments not necessarily deeds. These
questions are more fully discussed and cases cited under
sees. 4, 6 and 59 of the Territorial Beal Property Act in
Part III. of this manual. One effect of these provisions is
to extend greatly the interpretation of the words " substan-
tially in conformity with the schedules ** in the 77th sec-
tion, and probably the concluding words of sub-sec. 26 (page
46 ante) may be construed are requiring seals when rendered
necessary by variations from the forms given in the Act.

In re Irish, 2 Man. L. B. 861, statutory conveyances
were declared to be substantially in conformity with the
provisions of the B. P. Act of 1885.

{a) 46 and 47 Vic. oap. 26.

206 OSNBBAL PROVISIONS.

Where the defendant, owner of land subject to the new
system, executed a lease of it upon a short form purporting
to be made in respect of ** The Act respecting Short FarmM
oj Leases,'* (b) which was not registered or filed in the Land
Titles Office ; and afterwards conveyed the land to X by a
conveyance in which he made no mention of the lease ; it
was held by the full Court in an action by the lessee upon
the covenant for quiet enjoyment, after ouster by X, that the
covenant in the lease could be sued upon : Shore v. Grreen,
6 Man. L. B. 822, and per Eillam, J. 1. The instrument
was substantially in conformity with the form given in the
B. P. Act, and could have been registered. 2. Not having
been registered it could not take e£fect as a lease (c).
8. Even without registration the covenant could be sued
upon. 4. The neglect of the lessee to register his lease was
not, but the transfer by the lessor without mention of the
lease was the proximate cause of the damage to the plaintiff.
Bain, J., doubted whether the lease was one which could
have been registered under the Beal Property Act.

Owner 14«l* The owner of any land or of any lease, mortgage or charge ahall,

allow ase o^ ^® application of any beneficiary or person interested therein, be
Soite'eSi" ^^^^ ^ allow his name to be need by snoh beneficiary or person in any
action, suit or proceeding which it may be necessary or properto bring or
institute in the name of such owner oonoeming such land, lease, mortgage
or charge, or for the protection or benefit of the title vested in snch owner,
gdemnity or of the interest of any snch beneficiary person ; bnt nevertheless such
«aaei. owner shaU in any case be entitled to be indemnified in like manner as if,

being a trustee, he would, before the passing of this Act, have been en-
titled to be indemnified in a similiar case of his name being used in any
such action, suit or proceeding by his cestui que tnut.

How piir- 146* Whenever in any action, suit, or other prooeeding affecting tba
value may title to land, or any estate or interest therein, subject to the new system,
^nedf'^ it becomes necessary to determine the fkot whether the transferee, mort-
gagee, enoumbrancee or lessee is a purchaser or transferee for valuable

consideration or not, any person who is a party to such action, suit, or

•^— ^■^"^— ^^-^— ^^— ^^^— ^— ^^— ^^— ^■^^^— -^■^-^-^-^— ^^^^-^— -^-— ^^.— ^.^ ^^^— j—^^— ^.^fc^^^.»

(&) Probably on an Ontario form ; the Manitoba Short Forms Aot is
cited as " An Act respecting Short Fonns of Indentuins,"

GUABDIAM8 AD LITEM. 207

other proceeding may give in evidenoe any transfer, mortgage, encmn-
branoe, lease or other instrument affecting the title to saoh land, estate
or interest in dispnte, althongh the same may not be referred to in the
certificate of title or may have been cancelled by the District-Registrar.

147* Every certificate of title issued under this Act, and every ezem- Certifleate
plification or certified copy of any instrument deposited, filed, kept or etc.. to be
registered in any Land Titles Office, together with all memoranda and ^^^IJJJ^
•endorsements thereon, shall be received as evidence in any court of law or proof of
equity in this Province in the same manner and with the same effect as if ^^'^^ ^^'^'
the original within his office was produced without proof of the signature
or seal of office of such District- Registrar.

See Rule 20 Sch. S, s. 26, and sees. 66, 132 and 135
ante. Vide note p. 45 ante.

148* In case any person who, if not'under disability might have made Guardian
any application, given any consent, or done any act, or been party to any tee may do
proceeding under this Act, is a minor, an idiot, or a lunatic, the guardian ^t^^^^
of the minor, or committee of the estate of the idiot or lunatic, may make been done
such application, give such consent, do such act and be party to such pro- ^^ tm^.
ceedings as such person might, if free from disability, have made, given,
done, or been party to, and shall otherwise represent such person for the
purposes of this Act. If the minor has no guardian, or the idiot or If no gnar-
lunatic no committee of his estate, or persons yet unborn are interested, committee
the official guardian ad litem, or such other person as may be appointed ^^f^i^Q
for that purpose by the District- Registrar, may act with like power for ad lUem to
such minor, idiot, lunatic or person yet unborn, and any notices or pro- ^ '
ceedings which may be required by the District-Registrar to be served on
a person under any such disability may be served on the guardian ad
Utem, or other person so appointed by the District-Registrar for such per-
son under disability, and such service shall be considered as good service
and as effectual and binding upon such person under disability as if
personally served upon him while under no disability.

This clause was introduced by section 29 of the amend-
ing Act of 1887.

The proper course is to apply by petition supported by
affidavits as to the circumstances and the propriety of
appointing the guardian, etc., as in a proceeding in equity.

The effect of service upon guardians, etc., appointed
under this section would be to work a statutory estoppel
only. See sees. 52, 58, 67 and 187 ante.

208

PENALTIES.

The following form can be varied to suit the special
circumstances of each case :

PenaltieB.

Fine and
imprison-
ment.

Ths Rbal Pbopbbtt Act of 1889.

Application No.

In tlie Matter of the Application of

{Applicantt^ name» and additions,)
to bring under the operation of the above Act. {Describe lands,)

Upon the application of and upon reading the affidavit of

. I do hereby in pursuance of section 148 of " The Real

Property Act of 1889 " appoint of the of

in the Province of guardian of

infant child of and deceased, upon

whom all papers requiring service upon said infants under the said Real
Property Act of 1889 in this matter may be served, and generally to act
on behalf of said infants in this matter, as provided by said section 148
until further order of the District-Registrar or of the Court.

Dated at Land Titles Office, this day of A. D. 18

[heal]

District' Registrar.

Penalties.

149. If any person wilfully makes any false statement or declaration
in any dealing in land under this Act, or suppresses or conceals, or aissista
or joins in, or is privy to the suppressing, withholding or concealing from
the District-Registrar any material document, fact or matter of informa-
tion, or wilfully makes any false declaration required under the authority or
made in pursuance of this Act, or if any person fraudulently procures or is
privy to the fraudulent procurement of any certificate of title or instru-
ment, or of any entry in the Register, or of any erasure or alteration in
any entry in the Register, or if upon requisition made by the District-
Registrar any person refuses or wilfully neglects to produce any instru-
ment or allow the same to be inspected, or refuses or wilfully neglects to
give any information or explanation which he is by this Act required ta
give, or knowingly misleads or deceives any person hereinbefore autho-
rized to require explanation or information in respect to any land, or the
title to any land or in respect to which any deallngor transmission is pro-
posed to be registered, or is a party to or privy to any fraudulent act what-
ever in any matter connected with the working of this Act; such person shall
for each such offence be liable to a penalty of not less than fifty dollars
nor more than five hundred dollars, and in default of payment imprison-
ment for not less than one month nor more than six months.

PB08ECUTI0M8. 209

See sees. 68, 121 and 122 ante, and compare sec. 168
Victorian Land Transfer Statute, which is more compre-
hensive in its provisions.

See sees. 64, 85, 117, 128 and 129 ante.

There must be a fraudulent intention and semble there
should first be a conviction for the criminal offence before
any civil proceeding is determined : Wiggins v. HammiU, 4
V. L. E. (L.) 68.

In Canada the Criminal Law and procedure in criminal
matters are subject to the exclusive legislative authority of
the Dominion Parliament. See B. N. A. Act sec. 91.

Where a plaintiff had applied for registration of title,
alleging that the land and adjacent ground were unoccu-
pied, it was held that, without a guilty intention, this did
not make the certificate void ; and semhle, there should be
first a conviction for a criminal offence, the charge should
not be determined in a civil proceeding: Wiggins v.
HammiU, 4 Y. L. B. (L.) 68. It must be noted that sec.
158 of the Victorian Land Transfer Statute provides that
certain fraudulent acts and false declarations in proceed-
ings thereunder shall be deemed misdemeanors. In Canada
the criminal laws are exclusively within the jurisdiction of
Parliament, and Provincial Legislatures can only impose
punishment for the purpose of enforcing their laws enacted
respecting limited classes of subjects : vide " The British
North American Act, 1867 " (Imperial, 80 and 81 Vic, cap*
8, sees. 91 and 92).

Compare provision as to penalty in sec. 122 ante.

ISO* All proeecations for penalties under this Act may be brought Proseen-
before a Police Magistrate or any two Justices of the Peace, and aU ^]^&^L
penalties when collected shall be paid over to the Provincial Treasurer.

Procedure would be regulated by the Summary Convic-
tions Act, B. S. C. cap. 178.

MAN.L.A. 14

aio

BEPEAL.

48 Vic, cap.

8, 860.4,

amended.

l«ll* Section four of forty-eight Victoria, chapter eight, is hereby
amended by adding at the end thereof the following words *' Land Titles
Offices."

This section has the effect of adding Land Titles Offices
to departments included in the Civil Service of Manitoba
and subject to the provisions of ''The Manitoba Civil
Service Act." At present the Land Titles Offices are
administered under the supervision of the Attorney-
General.

Repealed

statutee.

Saving
olause.

I«S9« Ejcept as herein before provided Forty-eight Victoria, chapter
twenty-eight, forty-nine Victoria, chapter twenty-eight, fifty Victoria,
chapter eleven, fifty-one Victoria, chapters twenty-one and twenty-two,
fifty-two Victoria, chapter fonr, and any other Act which may be passed
this present session amending any of said Acts, are hereby repealed, bat
the Acts repealed by any of said Acts shall remain repealed, and all
things lawfully done and all rights acquired or liabilities ircurred. under
them or any of them shall remain valid and may be enforced.

See sees. 2, 14, 16, 18, 35, and 86 and notes ante.

THE END OF PART II.

PART III.

THE TERRITORIES REAL PROPERTY ACT.

Note. — The $ide notes are not printed as they appear in the authorized
edition of the Statutes.

THE TERRITORIES REAL PROPERTY AQ

As Amended with References and Notes ;
Being Revised Statutes of Canad\.

CHAPTER 51.

An Act respecting Eeal Property in the Territories.

ER Majesty, by and with the advice and consent of the Senate and a.D. 18B6.
House of Commons of Canada, enacts as follows : —

Short Titls.

1. This Act may be cited as *' The Temtariei Real Property Act," 49 V., Short title.
c. 26, s. 1.

CoMirSNCBMENT.

2* This Act shall commence and take effect from and after the first Corn-
day of January, one thousand eight hundred and eighty-seven. 49 V., c. ^entof
26, 8. 2. Act.

Intebpretation.

8* In this Act, and in all instruments purporting to be made or Interpreta-
ezecated thereunder, unless the context otherwise requires, —

(a) The expression " land " means lands, messuages, tenements and *' Iak^^-"
hereditaments, corporeal and incorporeal, of every nature and descrip-
tion, whatever the estate or interest therein is, and whether such estate
or interest is legal or equitable, together with all paths, passages, ways,
water courses, liberties, privileges, easements^ mines, minerals and
quarries appertaining thereto, and all trees and timber thereon and there-
under lying or being, unless any such are specially excepted.

This paragraph was substituted by 51 Vic. cap. 20,
sec. 2y for the former clause which read as follows :

(a) The expression ** Land " means land, messuages, tenements and
hereditaments, corporeal and incorporeal, of every kind and description,
whatever the estate or interest therein is, together with all paths,
passages, ways, water-courses, liberties, privileges, easements, mines.

214

INTEBPBETATION.

minerals and quarries appertaining thereto, and all trees and timber
thereon and thereunder lying or being, unless any such are specially
excepted ;

See Stats. Man. 48 Vic. cap. 28, sec. 3 (1) ; 61 Vic.
cap. 22, sec. 1, and 52 Vic. cap. 16, sec. 8 (1).

Compare with sec. 4 of the Victorian Transfer of Land
Statute.

** Owner." (6) The expression " Owner '* means any person or body corporate en-
titled to any freehold or other estate or interest in land, at law or in
equity, in possession, in futurity or expectancy ;

"Transfer." (c) The expression "Transfer" means the passing of any estate or
interest in land under this Act, whether for valuable consideration or
otherwise;

(<f) The expression "Mortgage" means any charge on land created
merely for securing a debt ;

The Man. Stat, (page 48 ante) has the words ''or loan/'
and now, as amended, includes sub-mortgages.

"Mort-
gage."

" Mortga-
gee."
"Mort-
gagor."

" Encum-
brance."

(e) The expression '* Mortgagee '* means the owner of a mortgage ;

(/) The expression *' Mortgagor" means the owner or transferee of
land, or of any estate or interest in land pledged as security for a debt ;

{g) The expression ** Encumbrance " means any charge on land created
for any purpose whatever, inclusive of mortgage, unless expressly distin>
guished ;

The last three clauses differ slightly with those of the
Man. Stat. p. 44 ante.

(h) The expression " Encumbrancer " means the owner of any land or
of any estate or interest in land subject to any encumbrance ;

(t) The expression *' Encumbrancee " means the owner of an encum-
brance ;

(j) The expression '* Lunatic *' means any person found by any com-
petent tribunal or commission de lunatico inquirendo^ to be a lunatic ;

" Person of (k) The expression " Person of unsound mind " means any person not
^nd!" ^^ infant, who not having been found to be a lunatic, has been found on

like inquiry to be incapable, from infirmity of mind, of managing hia

own affairs ;

"Instra- [I) The expression '* Instrument" means any grant, certificate of title,
conveyance, assurance, deed, map, plan, will, probate or exemplification

" Enenm-
brancer."

" Encum-
brancee."

" liunatic.

INTERPRETATION. 21S

of wiU, or any other dooument in writing relatinf^ to the transfer or other
dealing with land or evidencing title thereto.

(m) The expression " Register " means the register of titles to land to be "Ragtster."
kept in accordance with this Act ;

(n) The expression " Registrar" means any person appointed tmder"R6^
this Act as registrar of titles ;

(o) The expression '* Territories " means the North West Territories, " Terri-
the District of Eeewatin and all other Territories of Canada ;

The last three clauses not in Man. Stat.

(p) The expression " Court " means any court authorized to adjudicate "Court."
in the Territories in civil matters in which the title to real estate is in
question ;

{q) The expression "Court of Appeal'* means the Court of Appeal '*Comrt of
herein constituted ;

(r) The expression "Judge" means any official authorized in the "Judge."
Territories to adjudicate in civil matters in which the title to real estate
is in question ;

(«) The expression " Transmission " applies to change of ownership •• Trant-
consequent upon lunacy, levy.under execution, order of court or other act "^i**!****-'
of law, or in virtue of any settlement or any legal succession in case of
intestacy ;

(t) The expression " Grant " means any grant of Crown land, whether " Grant."
in fee or for years, and whether direct from Her Majesty or pursuant to
the provisions of any statute ;

(u) The expression " Indorsed " means anything written upon any "indorMd."
instrument or other document, or in the margin thereof, or at the foot
thereof ;

(i?) The expression '* Possession," when applied to persons claiming "Posmb-
title to land, means also alternatively the reception of the rents and profits
thereof. 49 V., c. 26, s. 3, as amended by 51 V., c. 30, s. 2.

Compare with interpretation clauses of the Manitoba
Statute, pages 42-47 ante.

The general interpretation clauses B. S. G. cap. 1, sec. 7,
are applicable to this statute in cases not specially provided

for.

Pbelikinaby.

41* From and after the commencement of this Act, aU lands in the All lands
Territories shall be subject to the provisions hereof. 49 V., c. 26, s. 4. JJit?*^ ^

S16 LAND LAW AMENDED.

Compare sec. 4 of the amending Act of 1888, which will
be found following sec. 17 post.

Ab to the meaning and effect of " Subject to the pro-
ri$ions " compare sees. 44, 45, 47 and 64, and see notes bj
Messrs. McCaul and Bown, 9 Can. L. T. 26, referred to
after Mr. Justice McGuire's judgment, sec. 59 post.

DXSCBNT GONVBTAKCB, ETC., OF RSAL PBOPEBTT.

Detoent of (|« Land in the Territoriee shaU go to the personal representativeB of
^'^ ' the deceased owner thereof in the same manner as personal estate now

goes.

Compare sees. 27 and 88 of the Manitoba Statute, pages
70 and 75 ante ; also Manitoba Statutes 48 Vic. cap. 28,
sec. 21 ; 49 Vic. cap. 28, sec. 4 ; 51 Vic. cap. 21, sec. 1, and
cap. 22, sub-sees. 2 and 8, also 52 Vic. cap. 4.

This section was substituted by 51 Vic. cap. 20, sec. 3,
for the former section, which was as follows :

All lands " 5. All lands in the Territories which, hy common law, are ref^rded m
footer ^tc. ^^^ estate, shaU be held to be chattels real, and shall go to the executor
or administrator of any person or persons dying seized or possessed there-
of, as personal estate now passes to the personal representatives." 49 V.»
c. 36, 8. 5.

The section in this form remained in force until 22Dd
May, 1888. Eefer to Fleming v. Howard^ p. 71 ante.

Effect of 6« Hereafter no words of limitation shall be necessary in any oonvey-
U^^tion ^^^^ ^^ *"y ^"^^ ^ order to convey all or any title therein, but every deed
or instmment conveying land shall operate as an absolute conveyance of
aU such right and title as the grantor has therein at the time of it« ezeco-
tion, unless a contrary intention is expressed in such conveyance ; bat
nothing herein contained shaU preclude any conveyance from operating
by way of estoppel ; and hereafter the introduction of any words of limita-
tion into any conveyance or devise of any land, shaU have the like foroe
and meaning, as the same words of limitation would have if used by way
«f limitation of any personal estate, and no other. 49 Y., c. 26, s. 6.

Compare sec. 28 of the Manitoba Statute page 72 ante,
and section 121 of this Act post.

Observe the use of limiting words in sec. 74 post. The
reference to conveyances in this section would necessarily

LAND LAW AMENDED. 217

include " Transfers " of property registered under the new
system. This section is cited by Mr. Justice McGuire in
re Thompson, 10 Can. L. T. 48 (see notes to sec. 59 post) as
defining what shall be conveyed by a '' deed."

7« No devise shall be valid or effectual as against the personal repre- Devisee to
sentative of the testator, nntil the land affected thereby is conveyed to the personal
devises thereof, by the personal representative of the devisor, saving and ^^'^**®'*^"^
excepting snch devises as are made by the testator to his personal repre-
sentative, either in his representative capacity or for his own use. 49 V .,
c. 26, s. 7.

See Man. Stat. sec. 29.

8. No widow whose husband dies on or after the first day of January, Dower
one thousand eight hundred and eighty-seven, shall be entitled to dower in
the real property of her deceased husband : but she shall have the same ^^^?^^
right in such real property as if it were personal property. 49 Y., o. 26,

8.8.

See Man. Stat. sec. 80.

9m No husband whose wife dies on or after the first day of January, one Curtesy
thousand eight hundred and eighty- seven, shall be entitled to any estate ^'^^^^^^
by the curtesy in the real property of his deceased wife ; but he shall have Haaband'B
the same right therein as a wife has in the personal property of her
deceased husband. 49 V., c. 26, s. 9.

See Man. Stat. cap. 81.

10« Whenever land is conveyed to a man and his wife the grantees Land con-
shall take according to the tenor of the deed, and they shall not take by ^an^kod
entireties unless it is so expressed in the conveyance or transfer. 49 V., wife.
c. 26, s. 10.

11. A man may make a valid conveyance or transfer of his real estate convev-
to his wife, and a woman may make a valid conveyance or transfer of SSsSlnS to
her real estate to her husband, without in either case, the intervention wife or
of a trustee. 49 V.. c. 26. s. 11. ^^ '^**

Man. Stat., sec. 82.

19« Any grant, devise or limitation, which heretofore would have Estate tail
created an estate tail, shall be construed to carry an estate in fee simple, *^°1*****^-
or the greatest estate the grantor or devisor had in the land granted or
conveyed ; and no estate in fee simple shall be changed into any limited

218 LAND LAW AMENDED.

Fee simple fee or fee-tail, but the land, whatever form of words is used in any instm-
able into ment of transfer or transmission or dealing, shall, except as hereinafter
esSite^ otherwise provided, be and remain an absolute estate in the owner for
the time being. 49 V., c. 26., s. 12.

This provision does not appear in the present Manitoba
Statute, but see repealed act of 1885, sees. 27 and 188.

*'*"*®^ 13* A married woman shall, in respect of land acquired by her after

woman 8 » jt -m ^

lands. the coming into force of this Act, have all the rights and be subject to all

the liabilities of feme sole, and may alienate and, by will or otherwise,
deal with land as if she were unmarried. 49 V., c. 26, s. 13.

Forfeiture £4, If a wife has left her husband, and has lived in adultery after

dv wife for

aaultery. leaving him, she shall take no part of the estate of her husband. 49 V.

c. 26, 8. 14.

And by lj|. If a husband has left his wife, and has lived in adultery after

leaving her, he shall take no part of her estate. 49 V., c 26, s. 14.

Children 16* Illegitimate children shall inherit from the mother as if they were
from legitimate, and through the mother if dead, any property or estate which

mother. ghe would, if living, have taken by purchase, >»ift, devise, or descent from
any other person. 49 V., c. 26, s. 16.

And 17, When an illegitimate child dies intestate, without issue, the mother

from child, of such child shall inherit. 49 V., c. 26, s. 17.

With reference to the foregoing sections 5 to 17 the follow-
ing provision has been made by 51 Vic. cap. 20, sec. 4.

Applica- '* It is hereby declared that sections five to seventeen of the said Act,

tionsStol?. both inclusive, were intended to extend and the provisions of the said

sections shall be held to have extended from the date upon which the

^aid Act came into force to all land in the Territories and to every estate

and interest therein."

Compare sec. A ante, and sec. 88 of the Manitoba Statute
page 75 ante.

Mr. Justice McGuire in re Thompson, 10 Can. L. T. 47,
says " Sections 5 to 17, both inclusive, form a part of the
Act distinct from the rest and took effect from the Ist Jan-
uary, 1887.'* See notes to sec. 59 post.

Reoistiution Districts.
B«8iBtra- 18, The provisional districts of Assiniboia and Alberta, as defined by
triots. an order of the Queen's Privy Council for Canada, dated the eighth day

of May, one thousand eight hundred and eighty-two. shall, for the pnr-

REaiBTRATION DISTRICTS. 219

poses of this Act, be land registration districts, to be known respectively
as the Assiniboia Land Registration District and the Alberta Land Regis-
tration District ; and that portion of the provisional district of Saskat-
chewan lying eastward of the third principal meridian shall be a land
registration district, to be known as the ** East Saskatchewan Land
Registration District ; " and that portion of the said Saskatchewan pro-
visional district lying westward of the said meridian shall also be a
registration district, to be known as the " West Saskatchewan Land
Registration District. " 49 V., c. 26, s. 18.

With reference to these districts amendments to settle
boundaries with greater precision were made by the Act
50-51 Vic, cap. 80, which came into force on 28rd June,
1887, and are as follows : —

*• Whereas by the Act forty -ninth Victoria, chapter twenty-six, inti- Boundaries
, _ *^ "^ ,,!».., o' districts

" tnled * An Act respectinq Real Property in the Territories,^ the Provisional altered.

'* District of Alberta was constituted one land registration district, and

"the Provisional District of Saskatchewan was divided into two registra-

** tion districts, the dividing line between the said districts being the third

** principal meridian in the system of Dominion land surveys ; whereas it

** was found necessary in the public interest and for the public convenience

"to divide the said Provisional District of Alberta into two separate

" registration districts, and to alter the boundary line between the two

" registration districts into which the said Provisional District of Saskat-

" chewan was by the said Act divided ; and whereas it is expedient that the

"division and alteration so made and all registrations of deeds and instru-

" ments effected in consequence should be ratified and confirmed, and that

" certain other amendments should be made to the said Act : Therefore

" Her Majesty, by and with the advice and consent of the Senate and

*' House of Commons of Canada, declares and enacts as follows : —

" 1* Notwithstanding anything contained in section eighteen of * The Alberta
" Territories Real Property AcV tbe Provisional District of Alberta shall
" be and shall be deemed to have been from the first day of January, in
" the present year one thousand eight hundred and eighty-seven, divided
" into two separate land registration districts, designated and bounded as
*• follows : —

" (a) The South Alberta Land Registration District shall consist of so South Al-
" much of the said Provisional District of Alberta as lies to the south of
" tbe ninth correction line in the system of Dominion land surveys ;

*' (b) The North Alberta Land Registration District shall consist of so North Al-
" much of the said Provisional District of Alberta as lies to the north of '^^^'
"the said ninth correction line.*'

" 9m Notwithstanding anything in the said section contained the Pro- ^^^^^^P~
" visional District of Saskatchewan shall be and be deemed to have been ed

220 REGISTRATION DISTRICTS.

" from the ninth day of May in the present year one thousand eight
*' handred and eighty-seven, divided into two separate land registration
'' districts, designated and bounded as follows : —

East Sas- " ('^) '^l^e East Saskatchewan land registration district shall consist of

katchewan. i< gQ nmch of the said Provisional District of Saskatchewan as lies to the

*' east of the dividing line between the tenth and eleventh ranges of town-

*' ships west of the third principal meridian in the system of Dominion

•• land surveys ;

West Sas- *' (b) The West Saskatchewan Land Registration district shall consist of
katchewan. ^^ ^ ^mch of the said Provisional District of Saskatchewan as lies to the
west of the said dividing line between the tenth and eleventh ranges of
' townships west of the third principal meridian aforesaid.'*

Katiflca- *' 4* All registrations effected and all acts done previous to the passing

gistration's. " ^^ this Act in anticipation of the ratification and confirmation by Parlia-

transfers, »» ment of the division of the said Provisional District of Alberta into two
etc.

*' registration districts, and of the alteration of the boundaries of the two

" registration districts into which the Provisional District of Saskatche-
'* wan was so divided, are hereby ratified and confirmed, and the transfer
'' by the registrar of the West Saskatchewan registration district to the
" registrar of the East Saskatchewan registration district of any deeds,
** instruments or documents registered previous to the said ninth day of
" May and relating to lands by this Act detached from the former and
" attached to the latter registration district is also hereby ratified and con-
** firmed, and the said Registrar of West Saskatchewan is authorized and
Farther ** empowered to make any further transfer to the registrar of East Saskat-
authcKrized '* ^^^^^^ ^^ ^^Y Buch deeds, instruments or documents as such alteration
" in the boundaries of the two districts renders necessary.'*

Begistra- " «(• No registration of titles effected under the provisions of either of
invau""^ the Acts hereinbefore cited shall be deemed to be invalid or defective in
dated. consequence of such registration having been made by a registrar
previously to his having taken the oath of office or entered into the bond
required by the said Acts, nor in consequence of any person having acted
as deputy registrar without having been formally appointed and without
having taken the prescribed oath and entered into a bond as required by
the said Acts.*'

New regis- 19« The Governor in Council may, from time to time, by proclama-

tricts ** ^* '^®^' *® ^^® settlement of the country and the exigencies of the pubUc

service require, constitute any other portion of the Territories a land

registration district, and declare by what local name the same shall be

known and designated. 49 V., c. 26, s. 19.

Man. Stat., sec. 4.

LAND TITLES OFFICES. 221

90* As soon after the passing of this Act as practicable, and whenever, Offices,
at any subsequent period, a new registration district is established, the provided.
Grovernor in Council may provide in each registration district, at the
public expense, and thereafter maintain in a proper state of repair, a
building of stone or brick, to serve as the office of the Registrar, and as
the place of deposit and preservation of the registers, duplicates, instru-
ments and documents connected with the re<dstration of titles, and shall
fit up the said office with such tire-p^oof safes and other secure places as
are necessary. 49 V., c. 26, s. 20.

Man. Stat., s. 18.

21* In each such registration district, at such place as the Governor Land titles,

in Council determines, there shall be an office, to be called the *' Land ap^^t-

Titles Office '* ; and the business of such office shall be conducted by an mratof

registrars,
officer to be called the registrar, appointed by the Governor in Council, assistants

with such assistants and clerks as are necessary, and as the Governor in ^^^ clerks.
Council, from time to time, appoints. 49 V., c. 26, s. 21.

Man. Stat., sees. 5 and 6.

32* The Governor in Council may, from time to time, appoint a Deputy re-
deputy to any of the registrars aforesaid, to act in case of the death, p*ow^?and
illness or absence from his office of the registrar to whom he is deputy ; auties.
and every deputy, during the time he so acts, shall have all the powers
and privileges, and perform all the duties and be subject to all the
responsibilities of the officer to whom he is deputy. 49 V., c. 26, s. 22.

Man. Stat., sec. 7.

The appointment of an Inspector has been provided for
by 51 Vic. cap 20, section 6, follows : —

" S* The Governor in Council may, from time to time, appoint an inspector.
Inspector of Land Titles Offices, whose duty shall be, under instructions P^^^ca^*
from the Minister of the Interior, to inspect the books and records of the tion.
several Land Titles Offices, and to perform such other duties as are
directed by the Minister of the Interior to be done from time to time, and
the said Inspector may, in the discretion of such Minister, be directed to
perform any duty which any Registrar is empowered by the said Act to
perform ; but no person shall be appointed Inspector of Land Titles
Offices unless he is a barrister or advocate of at least three years stand-
ing in one of the Provinces or Territories of Canada."

Man. Stat., sees. 6 and 77.

93« Every registrar of deeds appointed and acting in the Territories Existinc
when this Act comes into force, shall upon taking the oath and giving the registrars.

222

APPOINTlfKNT OF 0FFICEB8.

Oath of
office.

Qualiflcft- security hereinafter mentioned, be ex officio a registrar nnder this Act,
future ap- &nd shall hold office daring pleasure ; but thereafter no person shall be
pointees. appoicted a registrar unless he is a barrister or advocate, of at least

three years' standing in one of the Provinces of Canada. 49 Y., c. 26,

s. 23.

Man. Stat., eecs. 5 and 7.

See sees. 25 and 26 post, ap to oath and security.

Salaries. 94- The salaries of the Inspector of Land Titles Offices, a'nd of
registrars, deputy registrars, and other necessary officers, and such
incidental expenses of carrying this Act into effect as are sanctioned by
the Governor in Council, shall be paid out of moneys provided by Parlia-
ment for that purpose.

49 Vic. cap. 26, sec. 24, as amended by 51 Vic. cap. 20,
sec. 6.

9«S« Every Inspector of Land Titles Offices, registrar and deputy
registrar, before he enters upon the execution of his office, shall take,
before some judge or stipendiary magistrate in the Territories, the oath
of office in the form A in the schedule to this Act.

49 Vic. cap. 26, sec. 25, as amended by 51 Vic. cap. 20,
sec. 7.

See sec. 28 ante, and 26 post. See Man. Stat., sec. 8.

FORM A.
FoBH OF Rboistrab's OR DxpuTT Rsoistrab's Oath of Office.

Form. Territories of Canada, ) I (name and describe deponent), having been
District of - appointed to the office of registrar [or deputy

To Wit : j registrar) in and for the (name of regittration
dittrict, (tc), do swear {or <u the ea$e may be) that I will well, truly and
faithfully perform and execute all duties required of me, relating to the
said office, so long as I continue therein, and that I have not given,
directly or indirectly, nor authorized any person to give, any money,
gratuity or reward whatsoever for procuring the said office for me.

Sworn before me at , the \

day of . A. D. 18 .

J. P., in and for the said

District

(Signature of Begittrar or
Deputy Registrar.)

49 V. cap. 26, sch. form A.

SECURITY BY OFFICERS. 223

\m Before any registrar or deputy registrar appointed under this Act Secarity
is sworn into office, he, and two or more sufficient sureties, shall enter into
a joint and several bond in duplicate under their hands and seals to Her
Majesty, in a penal sum to be fixed at not less than one thousand dollars,
for the true and faithful performance by the said registrar or deputy
registrar, of his duty in respect of all things directed to be done by or
required of him by this Act or any law in that behalf, and such bond
shall be in the form B in the schedule to this Act, or to the like effect : gj^^ form!

2. The obligation to the like effect of any Guarantee Company Qu&rantee
approved of by the Governor in Council may be substituted for such ^o* bond,
bond :

3. Such bond or guarantee shall be subject to the approval of the
Governor in Council. 49 V., c. 26, s. 26.

For Form see sec. 27 post. See Man. Stat., sec. 8.

97* The sureties in such bond and duplicate shall justify under oath Custody o

bonds
in the form C in the schedule to this Act, and the execution by the

registrar, or deputy registrar, and his sureties shall be verified by affi-
davit of a subscribing witness in the form D in the schedule to this Act,
taken before a justice of the peace ; and one of such duplicates, with the
affidavit appended, shall be forthwith transmitted to the Secretary of
State to be filed in his office and the other shall be filed in the office of
the Lieutenant-Governor of the Territories. 49 Y., c. 26, s. 27.

FORM B.
Form of Bond of Reoibtrab or Deputy Registrar.

Territories of Canada, | Enow all men by these presents that I, Form.

District of Y {insert name and addition of principal) ^ ot the

To Wit: j of ,in

the Territories of the Dominion of Canada, hereinafter called ''the

principal" and we (insert names and additions of the sureties) of the

of , in the

of and , of

the of , in the

hereinafter called "the sureties," are respectively held and firmly
bound unto our Sovereign Lady the Queen, her heirs and successors, in
the respective penal sums following, that is to say : " The principal " in
the sum of dollars of lawful money of Canada, and each of

" the sureties " in a sum of dollars, of like lawful money, to

be paid to our said Sovereign Lady the Queen, her heirs and successors ;
for which said respective payments, well and faithfully to be made, we
jointly and severally, each for the other, — bind ourselves and our respec-

224

8URBTY BONDS.

tive heirs, execotors and administrators, firmly by these presents, sealed
with oar respective seals,

Dated this day of in the year of Oar

Lord one thousand eight hundred and , and in the

year of Her Majesty's reign.

Whereas ** the principal " having been appointed to the office or
employment of is required by law to give security

to the Crown for the due performance of the duties appertaining thereto ;
and " the sureties " have consented to become his sureties for such his
performance of the said duties ; and this bond is given in pursuance of
" The Territories Real Property Act."

Now the condition of this obligation is, that if '* the principal '* faith-
fully discharges the duties of the said office and duly accounts for all
moneys and property which may come into his custody by virtue of the
said office, this obligation shall be void, otherwise the same shall remain
in full force and effect.

Signed, sealed and delivered in '
the presence of

49 V. cap. 26, sch. form B.

(Signatures and Seals,)

FORM C.
ArriDAvrr of Justitication bt a Subett.

Territories of Canada,
District of

To Wit:

I. one of the sureties

in the foregoing bond named, make oath [off
affirm, (u the ease may be) and say as follows :

1. I am seized and possessed to my own use of real {or real and per-
sonal) estate, in the of in Canada,
of the actual value of dollars, over and above all charges
upon or encumbrances affecting the same.

2. My post office address is as follows : {insert it.)

Sworn before me at the of \

in the of

this day of

, A.D. one thousand eight
eight hundred and ninety

J. P. for the said

49 V. cap. 26, sch. form C.

{Signature.)

SECURITY BT 0FFI0ER8. 226

FORM D.
Affidavit of Attestation.

Territories of Canada, ] If ,

District of of the of , in

To Wrr : the of

on the of make oath and say, that I was

personally present, and did see (one of or a« t^ ease may

he) the ohligors in the above bond or writing obligatory named, dnly
execute the said instrument by signing, sealing, and, as (his act and deed
or their respective acts and deeds, ob the cate may be), delivering the same ;
and that I am a snbscribing witness to such execution.

Sworn before me, at the of

, in the of ,

this day of

A.D. 18

J. P. for the said

(Signature,)

A separate affidavit in this form will be made by a witness to the execution
by each obligator, if the same person does not witness the execution by all of
them.

49 V. cap. 26, sch. form D.

98. The registrar or deputy registrar shall, when required by the New bond
Secretary of State, execute a new bond in the form and to the effect pro- quj^f"
▼ided in section twenty-six of this Act, or furnish such other security as
is deemed expedient. 49 Y., c. 26, s. 28.

99* Each registrar shall have a seal of office, approved by the Governor Seal of
in Council, with which he shall seal all certificates of title and stamp all ^"^^'
instruments which are presented to him for registration. 40 V., c. 26,
1.29.

Man. Stat., sec. 9.

80« Each registrar shall, when required, and upon the payment of Copies rf
the legal fees, furnish, attested by the seal of his office, exemplifications, ^ISled'in-
copies and abstracts of any uncancelled instrument affecting land, which ^^^^^^
is deposited, filed, kept or registered in his office, and every suchdence.
exemplification or certified copy shall be received as evidence in the
same maimer and with the same effect as if the original was produced.
49 v., c. 26, 8. 30.

Mao. Stat. sec. 147.

MAN.L.A. 15

826 OFFICE BULE8.

SI* No registnLr, deputy registrar olr clerk in any land titles office
act M under this Act shall, directly or indirectly, act as the agent of any person

•gents, ete. investing money and taking securities on real estate within his registra-
tion district, nor shall snoh registrar, deputy registrar or clerk advise,
for any fee or reward or otherwise, upon titles of land, nor practice as a
conveyancer, nor shall he carry on or transact, within the registry office,
any business or occupation whatever, other than his duties as such
registrar, deputy or clerk. 49 V., c. 26, s. 31.

Man. Stat., sec. 20.

Indemnity S9« The registrar shall not, nor shall any deputy registrar or any

^J^S^^^ person acting under authority of the registrar, be liable to any action or

for bona proceeding for or in respect of any act bond fide done or omitted to be

done in the exercise or supposed exercise of the powers given by this Act,

or any order or general rule made in pursuance of this Act. 49 V., c. 26,

8.32.

Man. Stat., sees. 28 and 185.

Offloe SS« The land titles office shall be kept open on all days except Son-

^'^'** days and legal holidays, between the hours of ten in the forenoon and
four in the afternoon, during which time either the registrar or his
deputy shall be in attendance. 49 Y., o. 26, s. 33.

See Man. Stat., sec. 24. In the Territories the word
''holiday" includes New Year's Day, Epiphany, the Annun-
ciation, Good Friday, Ascension Day, Corpus Ghristi, St.
Peter and St. Paul, All Saints' Day, Conception Day,
Ash Wednesday, Easter Monday, Christmas Day, the
birthday of the reigning Sovereign, and any general fast
or thanksgiving, B. S. C. cap. 1 sec. 7 (26).

RSOIBTBATION.

Form Of in- 34« The registrar shall not register any instrument purporting to
formd»-^ transfer, or otherwise to deal with or affect any land under the proTisions
ijration. of this Act, except in the manner herein provided, nor unless such instm-
ment is in accordance with the provisions hereof ; but any instrument
substantially in conformity with the forms in the schedule to this Act, or
an instrument of like nature, shall be 'sufficient: Provided, that the
registrar shall have power to reject any instrument appearing to be unfit
for registration. 49 Y., o. 26, s. 84.

Man. Stat., sec. 77. See also sees. 59 and 64 post.

BBaiBTRATIONS. 227

See sees. 41, 59 and 64 post as to the necessity of regis-
tration to render instruments operative.

As to meaning of ** under the provisions,'* etc., see sec. 4
ante, and notes to sec. 59 post.

3«|* The registrar shall not make any entry in the register of any No entry
notice of trusts, whether expressed, implied, or oonstructive. 49 V., ^ "" '
c. 26, B. 36.

Man. Stat., sec. 86 ; and sec. 28 of Appendix.

36* The registrar may require the owner of any land within his Plans of
registration district desiring to transfer or otherwise to deal with the division,
same under the provisions of this Act, to deposit with the registrar a map
or plan of such land, with the several measurements marked thereon,
certified by a licensed surveyor, and upon one of the following scales : —

(a) If the land, or the portion thereof proposed to be transferred or Scale,
dealt with, is of less area than one acre, then such map or plan shall be If less than
on a scale not less than one inch to two chains ; ^^^ "*'®"

(b) If such land, or the portion thereof proposed to be transferred or Over one
dealt with, is of greater area than one acre, but not exceeding five acres, ^^'
then such map or plan shall be on a scale not less than one inch to five
chains ;

(c) If such land, or the portion thereof proposed to be transferred or Over five
dealt with, is of greater area than five acres, but not exceeding eighty ^'^*
acres, then such map or plan shall be on a scale not less than one inch to

ten chains ;

{d) If such land, or the portion thereof proposed to be transferred or Exceeding
dealt with, is of greater area than eighty acres, then such map or plan ^esf
shall be on a scale of one inch to twenty chains ;

2« Such owner shall sign the said plan and declare the accuracy of the Owner to
same before the regiirtrar or a justice of the peace : a p an.

3. If such owner neglects or refuses to comply with such requirements On default
as aforesaid, it shall not be incumbent on the registrar to proceed with

the r^stration of such transfer or dealing :

4. Subsequent sub-divisions of the same land may be delineated upon Snbse-
a duplicate of the map or plan of the same so deposited, if such map is ^^ng
upon a sufficient scale, in accordance with the provisions herein contained ;

and the correctness of the delineation of each such sub-division shall be
acknowledged in the manner prescribed for the case of the deposit of an
original map :

5. Where parts of different legal sub-divisions are included in the same Parts of
transfer, the map shall represent the whole of such legal sub-divisions, ^igiona.

228

BBOISTRATIONS.

ProTJso. and shall indicate the iocatioo of the lands'to be transferred : Provided
always, that this shall not be necessary in the case of lots in a city, town
or villa^, the plan of which has been registered. 49 V., c. 26, s. 36.

Man. Stat., sees. 68 (8) and 69.

Adminis- 37« The registrar may administer any oath or take any affirmation or
oaths, etc. declaration in lien of an oath from any one entitled by law to affirm or
declare. 49 V., o. 26, s. 37.

Man. Stat., sec. 56 (5) and notes.

The "Jie- SS« The registrar shall keep a book or books, which shall be called
mftries ^° * The Register/ and shall enter therein duplicates of all certificates of
therein. titles, to be issued as hereinafter provided for ; and each certificate of
title shall constitate a separate folio of snch book, and the registrar shall
record therein the particulars of all instruments, dealings and other
matters by this Act required to be registered or entered in the register,
and affecting the land included under such certificate of title.

49 Vic. cap. 26, sec. 88, as amended by 51 Vic. cap. 20^
sec. 8.
Man. Stat., Bule 9, Sch. S, sec. 26.

39* The rejristrar shall also keep a book or books which shall be caUed
the "day-book,'* and in which shall be entered by a short description
every instrument which is given in for registration, with the day, hour
and minute of filing ; and for purpose of priority between mortgagees,
transferees and others, the time of filing shall be taken as the time of
registration ; and the registrar, in entering memorials upon the granta
and certificates of titles embodied in the register, and in endorsing a
memorial upon an instrument to be issued, shall take the time from the
day-book as the time of registration. 49 V., c. 26, s. 39.

Man. Stat., Bule 10, Scb. S, sec. 26 and sec. 74, and
notes to sec. 58 pp. 101-103 ante,

40» Every grant shall be deemed and taken to be registered under the
provisions and for the purposes of this Act, so soon as the same has been
marked by the registrar with the folio and volume on and in which it is
embodied in the register ; and every transfer and other instrument pur-
porting to transfer, or in any way to affect land under the provisions of
this Act, shall be deemed to be so registered as soon as a memorial
thereof, as hereinafter described, has been entered in the register upon
the folio constituted by the existing grant or certificate of title of such
land. 49 V., c. 26, s. 40.

Man. Stat., sees. 58 and 74. See notes to sees. 49 and
64 post.

The " Day-
book**: its
form and
aae.

Priority.

Time of
filing.

Begistra*
tioD of
grants.

Transfers
and other
inetru*
ments.

REGISTRATIONS. 229

41* Except as hereinafter otherwise provided, every instr anient pre- Attestation
sented for registration shall, unless a Crown grant, be attested by a wit- ments for
nees, and shall be registered in the order of time in which it is presented ^f^^^^^'
for that purpose ; and instruments registered in respect of or affecting
the same estate or interest shall, notwith8tandin3 any express, implied or
constructive notice, be entitled to priority the one over the other, accord* Order of
ing to the time of registration and not according to the date of execution ; ^"°
and the registrar, upon registration thereof, shall file the same in his
office ; and so soon as registered, every instrument in conformity with
the provisions of this Act shall, for the purposes of this Act, be deemed
and taken to be embodied in the register as part and parcel thereof, and
such instrument, when so constructively embodied and stamped with the
seal of the registrar, shall thereupon create, transfer, surrender or dis- Effect of
charge, as the case may be, the estate or interest therein mentioned in tion.
the lands mentioned in the said instrument. 49 Y., c 26, s. 41.

Mao. Stat.y sees. 58 and 74. See notes to sec. 59 and
sec. 64 post.

By the two preceding sections, the priority of instruments
is fixed absolutely according to the order of registration, as
shewn by the ** Day Book." , The instrument does not
become effective as to the land until by registration it has
been " constructively embodied in the Register,'* and the
official seal impressed upon it ; Sliore v. Green, 6 Man.
L. R. 828.

Compare sec. 34 ante and 64 post, and notes by Messrs.
McCaul and Bown, 9 Can. L. T. 30.

4S* Every memorial entered in the register shall state the nature of Memorials,
the instrument to which it relates, the day, hour, and minute of the pre-
sentation of such instrument for registration, and the names of the
parties thereto, and shall refer by number or symbol to such instrument,
And shall be signed by the registrar. 49 V., c. 26, s. 42.

Man. Stat., Rule 14, Sch. S, sec. 2f).

43* Whenever a mamorial of any instrument has been entered in the Memorial
register, the registrar shall, except in the case of transfer or other ^^^^gtru-
dealing endorsed upon any certificate or other instrument as herein i^®^^^-
provided, record the like memorial on the duplicate certificate or other
instrument evidencing title to the land intended to be dealt with or^j^^^y
in any way affected ; and the registrar shall endorse on every instru- Jjj^™® °'
ment so registered a certificate of the day, hour and minute at which tion.

280 CBOWK GRANTS.

the said instrament was presented to be registered, and shall anthenti*
oate each sach certificate by signing his name and affixing his seal
thereto, and snch certificate shall be received in all courts of l&w aa
ETidenoe. conclusive evidence that such instrument has been duly registered. 49 V.,
0. 26, s. 43.

Man. Stat, sec. 76 and Rales 18-16, p. 67 ante.

Letters 44. Whenever any land is granted in the Territories by the Grown »

Eoond. ^® letters patent therefor, when issued, shall be forwarded from the
office whence the same are issued to the registrar of the registration
district in which the land so granted is situated, and the registrar shall
retain the letters patent in his office and bind the same ; and a certificate
of title, with any necessary qualifications, shall be granted to the
patentee:

See sec. 57 post. This practice of binding the original
grants is in accordance with the custom of the Australian
colonies. See notes to sec. 59 post,

Certiflo&te 2. Knch certificate shall be issued to the patentee free of all the fees
ifnnt^ and charges herein provided to be paid, if at the time of the issue of ench
certificate there are no registered encumbrances affecting such land :

Hadson 3. The notification to the Hudson Bay Company by the Minister of

pany lands. ^^® Interior, under the provisions of sub-section seven of section twenty-
two of * The Dominion Lands Act^^ of the survey and confirmation of the
survey of any township or part of a. township, shall be accepted by the
registrar as equivalent to, and dealt with by him in all respects in the
same manner as if the said notification were letters patent in favor of the
said company, granting to the said company in fee simple the sections or
three-quarter parts of sections to which they are entitled in such town-
ships or parts of townships under the provisions of ' The Dominion Landf
Act:'

Hudson 4. Any such notifications which have already been issued may be filed

nu viands. ^^ ^^® Company with the registrar of the district within which the lands

affected thereby are situated, and, for the future, snch notifications shall

be issued in duplicate, one to be sent to the said Company and one to the

registrar of the proper district :

Canadian 5. A notification to the registrar from the Minister of the Interior,.

Pacific and

railway that the lands described therein have been granted to the Canadian

lands. Pacific Railway Company or to any railway company entitled to

Dominion Lands under the authority of an Act of the Parliament of

Canada, shall be accepted by the registrar, and dealt with by him in aU

respects as if the same were letters patent in favor of such company ; the

notification shall state whether the grant be in fee simple or for years.

APPIJCATI0N8. 281

and shall alao specify any mines, minerals, rights or easements which are
excepted from the grant.

49 Vic. cap. 26, sec. 44, as amended by 51 Vic. cap. 20,
sec. 9.

Compare sees. 87-89 of the Manitoba Statute.

A "Crown grant" is an "Instrument, (sec. 3 (I) ante);
see sees. 84, 41, 59, 64, as to necessity of registration ; also
notes by Messrs. McCaul and Bown, 9 Can. L. T. 80-87.

45« The owner of any estate, or interest in any land, whether legal or Lands al-
eqaitable, letters patent for which have already issued from the Grown, patented,
may apply to have his title registered under the provisions of this Act.
49 v., c. 26, s. 45.

2. If, at the time of the issue of the certificate of title, there are no Fees,
registered encambrances or conveyances affecting such land, the certifi-
cate may be issued to the patentee upon the payment of such fees as are
fixed in that behalf by tariff made from time to time by the Governor in
Gouncil ; 'but no fees shall be payable therefor under the provisions of Exception,
sub-section two of section one hundred and thirty -three of this Act.

This sub-section was added by 51 Vic. cap. ^0, sec. 10.

See Form F, p. 237 post.

Compare sees. 40 and 59 Man. Stat.

See notes to sec. 44 ante, and sec. 59 post.

40. The application therefor shall be made in writing in the form E Applica-
in the schedule to this Act, to the registrar of the registration district in gi^^-atfon.'
which the land is situated, and shall be verified by the affidavit of the
applicant, or some one on his behalf, accompanied by —

(a) All deeds in possession of the applicant, if any ;

(&) A certificate showing all registrations affecting the title, down to the Proofs
time when such application is filed, with copies of any registered docu- |[|^^f^
ments, the originals or dnplicates whereof he is unable to produce ;

(c) A certificate from the sheriff showing that there is no execution in
his hands against the applicant. 49 Y., c. 26, s. 46.

{dj A certificate from the treasurer of the municipality wherein the Municipal
lands lie, or other proper officer, showing that at the date of the filing of
the application such lands are not chargeable with any arrears of muni-
cipal charges, rates or assessments.

51 Vic. cap. 20, sec. 11.

282 APPLICATIONS.

Bagrtand But in no case shall it be necessary for any applicant to prodaoe
not be pio- copies of any registered docnments under the foregoing provisions of this
^°^^^ section, if the originals of snch doonments are of record at the time

when the application is made, in the office of the registrar to whom the

application is made.

50-51 Vic. cap. SO, sec. 8.

See Bales 2, 8, 5, 6 and 7, Sch. S, sec. 26 Man. Stat.

FORM E.

Appucaxior to bring Laud mmsR tkb Opuution of ** Ths Tebbitoribs

Rbaz. Pbopbrtt Act."

To the registrar of registration district :

I {ituert name and additian), hereby apply to have the land hereinafter
described bronght onder the operation of " Thi Territorie* Real Property
Act" And I declare : —

1. That I am the owner {or agont for , the
owner) of an estate in fee simple in possession {or of an estate of freehold
in possessi on for my life, or otherwiu as the ease may require) in all that
piece of land, being {here describe the land),

2. That snch land, including all buildings and other improvements
thereon, is of the valae of dollars, and no more.

8. That there are no doonments 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 or expectancy {if
there be any add : other than as follows, and set the same forth.)

5. That the said land is now occupied {if unoccupied^ prefix (un) to occu-
pied; if occupied, add by whom, and state the name and addition of the
occupant and the nature of his occupancy).

6. That the names and addresses, so far as known to me of the occu-
pants 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 land, 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 , 18 .

Made and subscribed at , )

in the presence of . / v 'y' •!

APPLIOATIONS. 288

BGHBDULE OF DOCUMENTS REFERRED TO.

AFFIDAVIT.

Territories of Canada,
District of ,

To Wit:

I.
of
make oath and say : —

1. That I am the applicant named in the application hereto annexed.

2. That the several statements contained in the said application are
tme, to the hest of my knowledge and belief.

Sworn before me at the of \
in the of , this
day of , A.D. 18 . \ {Signature.)

J.P. for the said

47. Upon the filing of sach application, if the applicant is the original Clear titles
grantee of the Grown of the land and no deed, mortgage or other encam- fo^hwith-
brance, or instrument, or caveat affecting the title appears to have been
ref<i8tered ; or if not such original grantee, all the original title deeds are
produced and no person other than the applicant is in actual occupation
of the land in question, and no caveat has been registered, — and if, in
every case where any other person is admitted to be interested in the
land, whether as mortgagee or otherwise, such person is a consenting
party to such application, the registrar, if he entertains no doubt as to
the title of the applicant, shall, on payment of the fees prescribed,
register the said land under this Act. 49 Y., c. 26, s. 47.

See sec. 57 post as to manner of registration.
Compare sees. 48 and 44 of the Manitoba Statute, and
notes pp. 86 and 87 ante.

2. If there is any mortgage or encumbrance outstanding against the Mortgage
land at the date of the said application, the filing with the registrar of the by recent
original mortgage or instrument creating the encumbrance, or a copy oi mort-
thereof having indorsed thereon or attached thereto a receipt or acknow- thereon,
ledgment of the amount thereby secured, signed by the mortgagee or
encnmbrancee and proved by the affidavit of an attesting witness, shall
operate as a discharge of such mortgage or encumbrance, and as a recon-
veyance of the land to the mortgagor or encumbrancer or the person
claiming the land through such mortgagor or encumbrancer.

3. Bach receipt or acknowledgment may be in the form M. 1, appended Form of re-
to this Act. *^ ^ ■

61 Vic. cap. 20, sec. 12.

284 INVESTIGATIONS.

FORM M 1.

BbCEIPT OB ACKNOWLEDOMENT OF PaTHBNT OF MoRTOAOE OB OTHBB

Encuubbancb.

I, C. D., the mortgagee, (encumbrancee or assignee a$ the eate may
be) do acknowledge to have reoeived all the moneys dae or to become due
under the within written mortgage (or encumbrance, ae the case may be)
and that the same is wholly discharged.

In witness whereof I have hereunto subscribed my name this
day of , 18 .

Signed by the above named CD..

Signature.

this day of (.

A. Dm 18 , in the presence of 1

X. Y.

61 Vic. cap. 20, sec. 24.

If title not 4LS* If, upon the application being made as aforesaid, it appears that
plioati^ ^^y person other than the applicant is interested in the said lands,
sent to whether as mortgagee or otherwise, who is not a party to the application,
or in case any person other than the applicant is in possession of the
lands in question, or in case a caveat has been registered against the said
lands, or the registrar entertains any doubt as to the title of the appli'
cant, he shall forthwith, having given the applicant a certificate of the
filing of such application, transmit the application, with all evidence
supplied, to the judge, to be dealt with as hereinafter mentioned. 49 V.,
c. 26, 8. 48. '

Compare sec. 119 Manitoba Statute, page 175 ante.
See sec. 114 and Form S jpost as to referred cases after
registration of title.

Judge to ex- 49* The judge shall examine, without delay, all titles which are snb-
tities^ mitted to him, and for such purpose shall hear all persons interested, or
claiming to be interested, and shall hear and consider the claims as
against the applicant, of any person who is in possession of the lands ;
Powers of ^^^ ^® shall have and exercise all the powers for compelling the attend-
judge. ance of persons and the production of documents, which usually apper-

tain to courts of civil justice and the judges thereof in civil actions
brought therein. 49 V., c. 26. s. 49.

Man. Stat. sees. 43, 44, 68 and 121.

Adverse 50* Any person having an adverse claim or a claim not recognized in

the application for registration may, at any time before the judge has
approved of the applicant's title, file with the registrar a short statement

ADVERSE CLAIMS. 285

of his claim, verified by affidavit, and shall serve a oopy thereof on the
applicant, or his solicitor or agent. 49 Y., c. 26, s. 50.

This provision was removed in Manitoba by 50 Vic. cap.
11, sec. 18, which repealed sees. 58 and 54 of the Act of
1885, (58 Vic. cap 28.)

51. If any adverse claim is filed, the jadge shall proceed to examine Judge to
into and adjadicate thereon, and no certificate of title shall he granted
until SQch adverse claim has heen disposed of. 49 Y., c. 26, s. 51.

59« In any case before him, the judge shall, if any person other than Pnblica-
the applicant appears to be interested, and in any other case, may direct notice of
that notice of the application be published in some newspaper or news- ^q^^^^~
papers in such form and for such period as the judge thinks expedient,
and no order for registration shall be granted by him until after the
expiration of at least four weeks from the first publication of such notice,
if he has directed the same to be published. 49 V., c. 26, s. 52.

Compare sec. 52 of the Man. Stat, as to the service of
estoppel notices, pp. 94 and 95 ante.

53* The judge, if satisfied with the applicant's title, shall thereupon S^^^V^h
make an order directing the registrar, after the expiration of four weeks after foar
from the date thereof, ^nles8 in the meantime such order is appealed ^^^'
from, to register the same and issue to the applicant a certificate of title Appeals,
under this Act, which order, together with all documents and proofs sub-
mitted in the case, shall be transmitted to and retained by the registrar
in his custody. . 49 V., c. 26, s. 53.

Man. Stat., sees. 48 and 47.

^4- After registration, on application by the person entitled thereto, Certificate
and payment of the prescribed fees, a certificate of title shall be granted
by the registrar in the form F in the schedule to this Act signed by him,
and sealed with the seal of his office, and a copy ^ereof shall be pre-
served by the registrar in his office, in the register ; and the registrar Memorials
shall indorse upon the certificate of title a memorial of every mortgage ; oate?
encumbrance, lease, rent charge, term of years, or other dealing affecting
the land,' and such memorial shall be indorsed upon the duplicate in the
possession of the owner, as well as upon the duplicate which is in the
register. 49 V., c. 26, s. 54.

Form F., as amended by Statutes of 1887 and 1888,
follows sec. 57 post^ p. 287.

286 BEOISTEBED OWNERSHIP.

By Statute 51 Vic. cap. 20, sec. 22, it was provided that
the Governor in Council might, from time to time, vary the
form of the certificate of ownership provided for and provide
that the same shall specially mention any subsisting reserva-
tions contained in the origLl grant from the Crown.

See Man. Stat., sec. 60.

Subfie- 5«l. Upon any sabeeqaent transfer of the land mentioned in any sach

tra^fers. certificate, the certificate of title to be issued to the transferee shall be

issued by the registrar of the registration district where the land is

situate, in the prescribed form. 49 Y., c. 26, s. 55.

Man. Stat., sees. 59, 61, and 62, 81, and Rules 16 and 22,
Sch. S, sec. 26.

Post office 96* Every registered owner or mortgagee of any land or interest
^^' therein shall deliver to the registrar a memorandum in writing of some
post office address within the 'i'erritories. to which it shall be sufficient to
mail all notices that under this Act are required to be sent to such regis-
tered owner or mortgagee and every registered owner or mortgagee shaU,
from time to time, in like manner, notify the registrar of any change in
his post office address ; and every registered owner or transferee of any

Receipt for registered interest shall, if required by the registrar so to do, before the
delivery of any certificate of title, sign a receipt therefor in his own hand
writing, or otherwise furnish the registrar with his signature, so as to

Proviso. prevent personation as far as possible : Provided, that the registrar may
' proceed without such memorandum of address.

49 Vic. cap. 26, s. 56, as amended by 5 L Vic. cap. 20,
sec. 18.

Man. Stat., Bules 15, Sch. S, sec. 26.

Every re- 97* Every registration of ownership shall be made on a separate folio
to be^o^n a °^ *^® register, and upon any transfer of ownership the register of the
separate transferrer's title shall be cancelled, and the title of the transferee shaU
,thereupon be entered upon a new folio ; and the registrar shall note upon
the folio of the title of the transferrer the number of the folio of the
transferee's title, and upon that of the transferee the number of the regis-
ter of the transferrer, so that reference can be readily made from one to
the other, as occasion requires. 49 V., c. 26, s. 57.

Man. Stat., sec. 58, and Bales 9 and 16, Sch. S, sec. 26.

RBOI8TERBD OWNERSHIP. 287

FORM F.

(At amended.)

Cebtipicate op Ownebship.

Canada — Territories, Registration District.

This is to certify that A. B., of is now the owner of an Form F.

estate {describe the estate) of and in (describe the property), subject to the
encumbrances, liens and interests notified by memorial underwritten or
indorsed hereon, or which may hereafter be recorded in the register of
title.

In witness whereof I have hereunto subscribed my name and affixed
my seal this day of , A.D. 18

If the title is possessory, say :

The title of A. B. is subject to the claims (if any) which can be enforced
to the said land by reason of any defect in the title of {name of the first
registered owner).

And if subject to a mortgage, say :

The title of A. B. is subject to mortgage, dated the day

of , made by A. B. to W. B., to secure {here state the amount

secured, the rate of interest per cent, per annum, and the respective dates from
which the principal and interest are secured) payable as therein mentioned,
(If mortgage is discharged, say ): Discharged by certificate {here state the
distinguishing letter or number of the register and the number of the folio
therein).

And if subject to a lease, say :

The title of A. B. is subject to a lease, dated the day

of , made by A. B. to Y. Z., for the term of years.

When the transfer is absolute, say :

This certificate is cancelled and a new certificate of title issued.

{Signature.)

49 Vic. cap. 26, Sch. Form F. as amended by 50-51,
Vic. cap. 80, sec. 7, and 51 Vic. cap. 20, sec. 28.

See note to sec. 54 ante as to varying form.

Effect of Reoistration.

58* In every instrument charging, creating or transferring any estate povenant
or interest in land under the provisions of this Act, there shall be implied ^Serthis
the following covenant by the person charging, creating or transferring Act
such estate or interest, that is to say : That he will do such acts and exe-
cute such instruments as, in accordance with the provisions of this Act,
are necessary to give effect to all covenants, conditions and purposes
expressly set forth in such instrument, or by this Act declared to be

288 REOIBTEI^D 0WNEB8HIP.

implied against such person in instmments of a like nature. 49 V., c. 26,
8. 58.

Compare Man. Stat., sec. 80, 98, 94, 116 and 144. See
sec. 69 po8t.

tion.
Exception.

Eff t f ^^* ^^ instmment, natil registered under this Act, shall be e£FeotnaJ to
registra- pass any estate or interest in any land (except a leasehold interest for
three years or for a less period), or render saoh land liable as secnrity for
the payment of money ; bat npon the registration of any instrument in
manner hereinbefore prescribed, the estate or interest specified in such
instrument shall pass, or, as the case may be, the land shall become liable
as security, in manner and subject to the covenants, conditions and con-
tingencies set forth and specified in such instrument or by this Act
declared to be implied in instruments of a like nature; and if two or more
instruments executed by the same owner, and purporting to transfer or
meats prft- encumber the same estate or interest in any land, are presented at the
aether.^ same time to the registrar for registration and indorsement, he shall
register and indorse that instrument under which that person claims pro-
perty, who presents to him the certificate of title of such land for that
purpose. 49 V., c. 26, s. 69.

See sec. 41 ante. Compare see. 74 of the Manitoba
Statute. See notes pages 101-108 and 206 ante.

In re Thompson, 10 Can. L. T. 44, referred by the
Inspector and the Begis^ar of the East Saskatchewan
District under sec. 114 post, the following facts were
stated.

The land had been sold by the patentees to one
F., who on 8th March, 1887, sold it to T., giving
him a deed in fee simple. This deed was not filed or
registered until after an execution issued against F. had
been placed in the Sheriff's hands and charged upon the
land by the filing of a copy and memorandum on 8th June,
1888. On 4th March, 1889, T. applied to have his title
registered, producing the above deed, and in the certificate
of title issued to him, reference was made to the ezeoution
against F. as a charge upon the lands.

The question submitted was whether the Begistrar was^
right in issuing the certificate subject to the execution.

BE THOMPSON. 289

It was contended that the effect of this section was that
F. was still to be deemed the owner when the execution
against him was filed by the Sheriff, as no title or interest
was passed to T. for want of registration, and consequently
that the lands were charged by the writ, and contra that
this section did not apply to lands patented prior to 1st
January, 1887, (as in this case) until after application for
registration of title had been made, that the title passed to
T. on delivery of the deed and the land was not bound by
the execution.

Mr. Justice McGuire said that at first sight section 4, ante
would seem to indicate that on and after the 1st January,
1887, the various provisions of the Act were intended to
apply to all lands and all dealings therewith, but in subse-
quent sections beginning with sec. 84, ante the word
** land " is qualified by the uniform phrase *' under the pro-
visions of this Act." Now if the words '' subject to the
provisions of this Act *' in section 4 have the wide meaning
they appear to have, all lands would be under the provisions
of the Act, and it would be not only unnecessary but mis-
leading to use the phrase " under the provisions of this Act,'*
in section 84 and the many other places in which it appears.
These words are evidently used to distinguish lands which
are, from others which are not " under the provisions, etc.,"
so we must see if the words " subject to *' in section 4 have
not a different meaning from the word '' under " in section
84, etc. Looking at Worcester's dictionary I find that
'' subject " in addition to its primary meaning of " placed
under " also means " exposed," '' liable," in this, sense it is
used by Shakespeare " most subject is the fattest soil for
weeds," and by Dry den *' all human things are subject to
decay," meaning not that " fattest soils " are actually
" weedy," or '* all human things " actually are in a state of
** decay," but only that they are respectively " liable to "
or exposed to become so whenever certain conditions are

240 BE THOMPSON.

fulfilled. If we take this meaning we may interpret section
4 as saying that all lands may become under this Act, and
then sections 44 and 45 deal with two classes ; the former
with lands where patent had not issued on Ist Jan-
uary, 1887, the latter with lands where the patent has
issued before that date. In the former case the lands
come under the Act by the patent being transmitted direct
to the Registrar, whereupon he issues a certificate to the
patentee ; in the latter an application may be made
by the owner, the procedure for which is provided, and
when on that application a certificate is issued, then the
land becomes ** under the provisions of the Act " ; but until
such application is made the land is not actually under
the Act, and the registration provisions do not apply.

Sections 5 to 17 both inclusive form a part of the Act
distinct from the rest, and thev took effect from the 1st
January, 1887, and they are so interpreted by the amend-
ing Act of 1888, which again furnishes another reason for
distinguishing between these thirteen sections and the rest
of the Act. Since Parliament by limiting the interpreta-
tion of these sections implicitly declares that the whole Act
was not " intended to extend, etc." (1). Another circum-
stance strongly confirming this view is that in these
sections we find the words ''deed" and " deed or trans-
fer " repeated, and section 6 defines what a " deed " shall
convey. Now the instruments to be used under the Act are
none of these deeds, not being under seal, and these
sections therefore seem clearly to provide for the use both
of deeds which must mean instruments under the law as it
existed before the [Act, and ''transfers,'* the new form of
conveyance introduced by the Act, according as the land is
or is not " under the provisions" of the Act. Section 34
deals with lands which are "under the provisions " of the

(1) Compare McGaul and Bown's Notes, 9 Can. L. T. 27.

RE THOMPSON. 241

Act, and the form of instrumenta " purporting to transfer,
etc.," such lands, and it is to be noted that the word '* trans-
fer '* and not " deed " is used here as being the term
appropriate to conveyances under the Act. Section 58 also
expressly deals with lands under the provisions of the Act,
and while section 59 does not contain the qualifying phrase.
I think that it must be read along with the preceding
sections, and as one of the seven sections (58 to 64) put
under the heading, " ££fect of Registration," and the con-
eluding words of section 59 seem to presuppose the existence
of a certificate of title and therefore confine t^e view
that it applies only where the land has been brought
under section 44 or section 45. Moreover section 64
declares that " after registration of the title to any land
" under the provisions of this Act no instrument shall be
"effectual to pass any interest, etc., unless two things
occur : (a) It is executed in accordance with the Act, and (b)
it is duly registered thereunder. But section 84 had
already dealt with (a), and if section 59 applied to all lands
and all instruments then it had akeady rendered impossible
the registering of the instrument whether before or after
registration of title. In order, however, to give section 64
a reasonable construction it is necessary to read section 59
as applying only to lands after issue of a certificate of
ownership and the instruments in the schedule, and then
section 64 as declaring that as against a bona fide trans*
feree of the land under this Act the conditions therein
mentioned must be complied with. Notwithstanding the
T. B. P. Act, as far at least as lands are concerned which
have not yet been brought under the Act by sees. 44 or 45,
the old law is in force and a deed passes the interest it pur-
ports to pass, and on delivery of the deed to T., F. ceased
to be owner of or in any way entitled to any interest what-
ever in the land in question, and the execution against F.
was no lien or charge thereon.

MAN.L.A 16

242 IMPLIED QUALIFICATIONS.

A di£ferent view of the application of the Act has been
taken by Messrs. McCaul and Bown in some very usefal
notes on the Territorial Act furnished by them to the
Canada Law Times, vol. 9, pages 28-28» where these pro-
visions of the Act are discussed and comparison made with
the Manitoba decision In re Irish, 2 Man. L. B. 361 ; and
the proposition submitted that the Territories Beal Property
Act is applicable to all lands in the Territories, whether
patented or unpatented, when it comes into force, and that
its provisions are practically compulsory on all owners.

Begistered 60* The registered owner of land or of any estate or interest in land,

title to be under the provisions of this Act, shall hold the same sabject (in addition

absolute, f^ the incidents implied by virtue of this Act) to such encumbrances,

liens, estates or interests, as are notified on the folio of the register oonsti-

tated by the certificate of title to such land, absolutely free from all other

Exoep- encumbrances, lien, estates or interests whatsoever,— except in case of

fraud wherein he has participated or colluded, and except the estates or

interests of all persons entitled to or interested in any portion of land that

is, by wrong description of parcels or of boundaries, erroneously included

in the certificate of title, lease or other instrument evidencing the title of

such registered owner, and except the estate or interest of an owner

claiming the same land under a prior certificate of title registered under

the provisions of this Act :

How pri- 2. Such priority shall, in favor of any person in possession of land, be

befcom^*^^ computed with reference to the grant or earliest certificate of title under

puted. which he or any person through whom he derives title, has held such

possession, notwithstanding the surrender of such certificate, in exchange

for a new certificate upon any transfer or dealing. 49 Y., c. 26, s. 60.

See sec. 68 post,

Man. Stat., ss. 64, 85, 133, 139, 143.

Implied 61* The land mentioned in any certificate of title granted under this

tlona. ^^ Act shall, by implication, and without any special mention in the

certificate of title, unless the contrary is expressly declared, be subject

to,-

Reserva- (a) Any subsisting reservations contained in the original grant of the

*°°^' said land from the Crown ;

Municipal {b) Any municipal charges, rates or assessments for the year corrent
tor^tSxee ^^ ^^^ ^^^ ^' ^^^^ certificate, or which are thereafter imposed on the said
y®*'"* land, or which have theretofore been imposed for local improvements and

IlfPLIBD QUALIFICATIONS. 243

which are not then due and payable, and any each oharges, rates or ass^s-
mentB in respect of which the right of the municipality to have recourse
against the lajid is not matured, not exceeding three years' charges, rates
or assessments in the whole ;

(e) Any subsisting right of way or other easement, howsoever created Easementa.
upon, over or in respect of the said land ;

(d) Any subsisting lease or agreement for a lease for a period not Leases for
•exceeding three years, where there is actual occupation of the said land thant^e
under the same ; years.

(e) Any decrees, orders or executions against or affecting the interest Roistered
of the registered owner in such land, which have been registered and main- itc/^
tained in force against such registered owner ;

{J) All public highways embraced in the description of the lands Highways,
included in any certificate ; and —

{g) Any right of appropriation which may, by statute, be vested in any Bxpropria-
person or body corporate. 49 V., c. 26, s. 61.

See note to sec. 51 ante, and sec. 181 post, as to reserva-
tions of mining rights appearing in the grant. See also
preceding section and

Man. Stat., sees. 63, 79 and 84.

03« Every certificate of title granted under this Act shall (except in Certificate
case of fraud, wherein the registered owner has participated or colluded), clasive evi-
so long as the same remains in force and uncancelled under this Act, ^^^ ^'
be conclusive evidence at law and in equity as against Her Majesty and
all persons whomsoever that the person named in such certificate is
entitled to the land included in such certificate, for the estate or interest
therein specified, subject to the exceptions and reservations mentioned in
the next preceding section, — except so far as regards any portion of land. Exceptions
by wrong description of boundaries or parcels included in such certificate,
and except as against any person claiming under any prior certificate of
title granted under this Act in respect of the same land ; and for the
purpose of this section that person shall be deemed to claim under a claimant
prior certificate who is holder of, or whose claim is derived directly or ^^^1 P^*"
indirectly from the person who was the holder of the earliest certificate
granted, notwithstanding that such certificate has been surrendered and
a new certificate granted upon any transfer or dealing. 49 Y., c. 26 s. 62.

See sees. 60 and 61 ante and notes thereto.
Compare sec. 64 and 66 Man. Stat.

244

TRANSFERS.

03« A purchaser or encumbrHDceo for valuable consideration shall

As to orain-

sion or non*

receipt of not be affected by the omiss on to send any notice by this Act dire::ted to

notices. y^ giygjj ^j. ^y ^jjg nonreoeipt thereof. 49 V.. c» 26, s. 63.

Man. Stat., 64, 65. 85, 183 and 143.

iDBtm*
ments
must be
according
to Forms.

Memoran-
dum.

What it
must con-
tain.

64* After the registration of the title to any land under the pro-
visions of this Act, no instrumeut shall be effdctoal to pass any
interest therein or to render such land liable as security for the
payment of money as against any bona fide transferee of the said
land under this Act, unless such instrument is executed in accordance
with this Act, and is duly registered thereunder. 49 V., c. 26, s. G4.

See sec. 34 ante.

Compare sec. 77 Man. Stat.

See reference to this section in remarks of the Judge
In re Thompson, noted under section 59 ante, and notes as
to the effect of registration, under section 41 ante.

An unregistered deed has no effect upon lands under the
** new syetem." The Act created an entirely new system
of dealing with land. The intention was to recognize only
the registered title : per Killam, J., in Shore v. Green, 6
Man. L. II. 327 (vide^i>, 206 ante).

Transfer.

65. When land under the provisions of this Act, or any portion of
such land, is intended to be transferred, or any right of way or other
easement is intended to be created or transferred, the registered owner
may execute a memorandum of transfer in the form G in the schednle
to this Act, which memorandum shall, for description of the land intended
to be dealt with, refer to the grant or certificate of title of such land, or
shall ^ive such description as is sufficient to identify the same, and shall
contain an accurate statement of the estate, interest or easement intended
to be transferred or created, and a memorandum of all leases, mortgages
and other encumbrances to which the same are subject ; and such trans-
fer, if it is endorsed on the instrument evidencing the title of the trans-
ferrer, need not be executed in duplicate. 49 V., c. *26, s. 65.

Mnn. Stat., sees. 72, 74.

Compare sees. 34, 41, 59, 64, ante, as to necessity of
registration.

TRANSfERB. 245

FORM G.

Transfer.

I, A. B., being registered owner of an estate [state tJie nature of estate),
sabject, however, to saoh encumbrances, liens and interests as are noti-
fied by memorandum underwritten [or indorsed hereon), in all that certain
tract of land containing acres, more or less, and being (part

of) section, township , range , in

the (as thj case may be), ()tere state rights of way, privilege*,

easemenJU, if any, intended to be conveyed along with the land and if the
land dealt with contains all included in the original grant, rejer thereto for
description of parcels and diagrams ; otherwise set forth the boundaries and
accompany tlte description hy a diagram), do hereby, in consideration of
the sum of 9 t paid to me by E. F., the receipt of which sum I

hereby acknowledge, transfer to the said £. F., all my estate and interest
in the said piece of land. (}Vhen a lesser estate, then de*cribe such er
estate.)

In witness whereof, I have hereunto subscribed may name this
day of , 18 .

Signed on the day above named,

by said A. B., in the presence ■ (Signature.)

of G. A. )

49 Vic. cap. 26, sch. form G.

O^ Whenever any easement or any incorporeal right in or over any Hegistra-
land under the provisions of this Act, is created for the purpose of being ||j2nt' *****'
annexed to or used and enjoyed together with other land under the pro-
visions of this Act, the registrar shall also enter a memorial of the
instrument creating such easement or incorporeal right upon the folio
of the register book constituted by the existing certificate of title of such
other land. 49 V., c. 26, s. 66.

Man. Stat., sec. 79.

67* If the memorandum of transfer purports to transfer the trans- On transfer
ferrer's interest in the whole or part of the land mentioned in any grant or^rrt^of
or certificate of title, the transferrer shall deliver up the certificate of title the certifl-
of the said land, and the registrar shall, on payment of the prescribed celled,
fee, enter in the register and on the duplicate certificate of title, a mem-
orandum cancelling the same, either wholly or partially, according as the
memorandum of transfer purports to transfer the whole or part only of
the interest of the transferrer in the land mentioned in such certificate
of title, and setting forth the particulars of the transfer. 49 V., c. 26, s. 67.

Man. Stat., sec. 73, and Rule 17, Sch. S, sec. 26.

246

TBAN8FEB8.

^ewcertifi- n^. The registrar, upon canoelling any oertifioate of title, either

to trans- wholly or partially, parsaant to any each transfer, and receiving the

feree. prescrihed fees, shall make out to the transferee a certificate of title ta

the land mentioned in such memorandum of transfer ; and the registrar

^^ffl^^^ shall retain every memorandum of transfer and cancelled or partially can-

retained, celled certificate of title, and in the case of a partially cancelled certificate

of title, shall return the duplicate to the grantee after the memorandum

partially cancelling the same has heen entered thereupon,— or may»

whenever required thereto hy the owner of an unsold portion of land

included in any such partially cancelled grant or certificate of title, or

by a registered transferee of such portion, or of any part thereof, or

where such a course appears more expedient, make out to such owner or

transferee a certificate of title for such portion or any part thereof, of

which he is the owner or transferee, upon the delivery of the partially

cancelled certificate of title to the registrar, to be cancelled and retained »

49 v., c. 26, s. 68.

This section is printed as amended by 51 Vie. cap. 20»
sec. 14.

The amendment consisted in striking out the words
" and every such certificate of title shall refer if practicable
" to the original grant, of such land, and to the instrument
" of transfer."

Compare sees. 78, 76 and Bale 22, Sch. S, sec. 26 of the
Manitoba Statute.

Implied
oovenants
by traDH-
feree of
enoam-
bered
estate. "^

60* In every instrument transferring an estate or interest in land
under the provisions of this Act, subject to mortgage or encumbrance,
there shall be implied the following covenant by the transferee, that is to
say : That such transferee will pay the interest, annuity or rent charge
secured by such mortgage or encumbrance, after the rate and at the time
specified in the instrument creating the same, and will indemnify and
keep harmless the transferrer from and against the principal sum or
other moneys, secured by such instrument, and from and against all
liability in respect of any of the covenants therein contained or under
this Act implied, on the part of the transferrer. 49 Y., c. 26, s. 69.

See sec. 58 ante, and sec. 86-88 post. All implied coYen-
ants may be modified ; i:ide sec. 121 post.

Man. Stat., sees. 80, 96, 99 and 144.

Leases.

Leases for 70« When any land under the provisions of this Act is intended to be
oT^moTB^^ leased or demised for a life or lives, or for a term of three or more years.

LEASES. 247

the owner shall execute a lease in the form H in the sohednle to this Act,
and every sach instrument shall, for description of the land intended to
be dealt with, refer to the certificate of title of the land^ or shall give such
other description as is necessary to identify such land; and a right for Right of
the lessee to purchase the land therein described may be stipulated in such by lessee,
instrument; and in case the lessee pays the purchase money stipulated,
and otherwise observes his covenants expressed and implied in such Transfer
instrument, the lessor shall be bound to execute a memorandum of trans- sooh^uM!'^
fer to such lessee of the said land, and to perform all necessary acts by
this Act prescribed for the purpose of transferring the land to the pur-
chaser: Provided always, that no lease of mortgaged or emcumbered Proviso: as
land shall be valid and binding against the mortgagee or encumbranoee bered land,
unless such mortgagee or encumbrancee has consented to such lease prior
to the same being registered, or subsequently adopts the same. 49 Y.,
c. 26, s. 70.

Compare Man. Stat., sec. 87.

See sees. 64 ante ; and 78-75 post as to re-entry and the
surrender of leases ; sec. 92 post as to transmission, and
sec. 98 post as to sales under process.

See notes re Shore v. Oreen, pp. 206 and 244 ante.

Compare' sees. 84, 41, 59, 64 ante, as to necessity of
registration.

FORM H.

Leasb.

I, A. B., being registered as owner, subject, however, to such mortgages
and encumbrances as are notified by memorandum underwritten {or
endorsed hereon), of that piece of land {describe it), part of ,

section , township , range csntaining

acres, more or less {here state rights of way, privileges, ease-
ments, if any, intended to be conveyed along with the land, and if the land
dealt with contains all included in the original grant or certificate of title or
lease, refer thereto for description and diagram, otherwise set forth t?ie boun-
dariee by metes atid bounds) do hereby lease to E. F., of {here insert descrip-
tion), aU the said lands, to be held by him, the said E. F., as tenant, for
the space of years, from {here state the date and term), at the

yearly rental of 9 , payable {here insert terms of payment of rent)^

subject to the covenants and powers implied {also set forth any special
covenants or modifications of implied covenants).

I. £. F., of {here insert description), do hereby accept this lease of the

848 LKA8E8.

above described lands, to be beld by me as tenant* and snbject to the
conditions, restrictions and covenants above set forth.

Dated this day of

Signed by aboved-named A. B.,
as lessor, and E. F., as lessee,

{Signature of Leuor,)
(Signature of Leuee.)

this day of

188 , in presence of

X.Y„
{Here insert memorandum of mortgage* and encumbrances.)

49 Vic. cap. 26, 8ch. form H. See sees. 71, 72 and 74
post as to implied covenants, and sec. 121 post as to modi*
fications, etc.

Compare Sch. E, sec. 87 Man Stat, and notes pp. 138,
206 and 244 ante.

Implied ^^* ^° every memorandum of lease, unless a contrary mtentioa

eovenants appears therein, there shall be implied the following covenants by the
Dy lessee* , a* . .

lessee, that is to say : —

Bent and (^) ^^^^ ^^^ ^^^ P^X ^^® ^^'^^ thereby reserved at the times therein
taxes. mentioned, and all rates and taxes which maybe payable in respect of the

demised property during the continuance of the lease ;

To repair. W ^^^^ ^® ^^^'i &^ ^ times during the continuance of the said lease,
keep and, at the termination thereof, yield up the demised property in
good and tenantable repair, accidents and damage to buildings from fire,
storm and tempest or other casualty, and reasonable wear and tear
excepted. 49 Y., a 26, s. 71.

Man. Stat., sec. 88. See note last section.

The words are ** or other casuality " do not appear in the
Manitoba or Victorian Statutes, and it is not clear how
casualities are to be distinguished from accidents.

In South Australia the Supreme Court held that a ri<;ht
of re-entry did not arise in consequence of a breach of a
covenant not to sublet, as this is not a covenant in respect
of which default could be continued : Saunders v. Wadham,
4 S. A. L. R. 73. See note to Form I post.

Powers of 72* In every memorandum of lease, unless a different intention
lessor. appears therein, there shall also be implied the following powers in the
lessor, that is to say : —

LEASES. 249

(a) That he may by himBolf or his agents, enter upon the demised pro- To view
perty and view the state of repair thereof, and may serve apon the ^^^°^ ^^'
lessee, or leave at his last or usaal place of abode, or upon the demised
premises, a notice in writing of any defect, requiring him within a
reasonable time, to be therein mentioned, to repair the same, in so far as

the tenant is bound to do so ;

(b) That in case the rent or any part thereof is in arrear for the space To re-enter
of two calendar months, or in case default is made in the fulfilment of ^ ^ ^^ '
any covenant, whether expressed or implied in such lease, on the part of

the lessee, and is continued for the space of two calendar months, or in
case the repairs required by such notice as aforesaid, are not completed
within the time therein specified, such lessor may enter upon and take
possession of such demised premises. 49 V., c. 26, s. 72.

Compare Man. Stat., sec. 89.

T3« In any such case the registrar, upon proof to his satisfaction of lieaee oan-
recovery of possession by a lessor, or as transferee by a legal proceeding, reentry,
shall make an entry of the same in the register, and the estate of the
lessee in such land shall thereupon determine, but without releasing the
lessee from his liability in respect of the breach of any covenant in such
lease expressed or implied ; and the registrar shall cancel such lease, if
delivered up to him for that purpose. 49 Y., c. 26, s. 73.

Man. Stat., sec. 90.

T4« Whenever, in any lease or mortgage made under this Act, the Short form
forms of words in column one of the Form I in the said schedule to this SJ^ewe^OT
Act, and distinguished by any number therein, are used, such lease or mortgage,
mortgage shall be taken to have the same effect, and be construed as if there
had been inserted therein the form of words contained in column two of
the said form and distinguished by the same number ; and every such
form shall be deemed a covenant by the covenantor with the covenantee
and his transferees, binding the former and his heirs, executors, adminis-
trators and transferees ; but it shall not be necessary in any such lease to May be
insert any such number ; and there may be introduced into or annexed ^^"
to any of the forms in £\ie first column any expressed exceptions from the
same or expressed qualifications thereof respectively, and the like excep-
tions or qualifications shall be taken to be made from or in corresponding
forms in the second column. 49 V., o. 26, s. 74.

Observe the use of the word heirs in both Acts, and com-
pare sec. 6 and notes anf^ and notes p. 72 ante; also Forms
H and I and sec. 71.

Man. Stat., sees. 91 and 144.

250

8H0BT FOBM COVENANTS.

Although the covenants given in Form I are referred to
as permissable in mortgages, it will be seen that they are
construed in the second column in a manner only appli-
cable to leases. The heading of the form contains the word
" Implied/* and is misleading.

FORM I.
Statutory Cotbmants Ixplikd m Lbase or Mortoagk.

C*o2aiiiii cme*

StotQtory 1. Will not. without leave, assign
short oove- _ ,1 *
nants. or sublet.

2. Willfenoe.

3. Will oultivate.

4. Will not out timber.

Column two.

1. The covenantor, his executors,
administrators, or transferees, will
not, during the said term, transfer,
assign, or sublet the premises hereby
leased, or any part thereof, or other-
wise by any act or deed procure the
said premises, or any part thereof, to
be transferred or sublet, without the
consent in writing of the lessor or his
transferees first had and obtained.

2. The covenantor, his executors,
administrators, or transferees, will,
during the continuance of the said
term, erect and put upon the boun-
daries of the said land, or on those
boundaries on which no substantial
fence now exists, a good and substan-
tial fence.

3. The covenantor, his executors,
administrators, or transferees, will,
at all times during the said term,
cultivate, use and manage in a proper
husbandlike manner all such parts of
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.

4. The covenantor, his executors,
administrators, or transferees, will
not cut down, fell, injure or destroy

SHORT FORM COVENANTS. 251

any living timber or timber-like tree
standing and being upon the said
land, without the consent in writing
of the said lessor or his transferees.

5. Will not carry on offensive 5. The covenantor, his execators,
trade. administrators or transferees will not,

at any time daring the said term, use,
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, occu-
pation 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 any disturbance of the
occupiers or owners of the adjoining
lands and properties.

49 Vic. cap. 26, sch. form I.

Compare Man. Stat. Sch. N, sec. 91 and notes page 141
mnte.

These covenants are also made binding on the heirs (see
note to sec. 74), bat it is not clear that they could be com-
pelled to their performance, t'ide sec. 6 ante.

An injunction issued in Victoria restraining a lessee
from committing a breach of an implied covenant : Mundy
V. Prowse, 4 V. L. R. (E.) 101. See notes to sec. 71 ante.

75* Whenever any lease or demise which is required to be registered Surrender
by this Act is intended to be surrendered, and the surrender thereof is \lg^^
effected otherwise than through, the operation of a surrender in law,
there shall be indorsed upon such lease or counterpart thereof the word
" surrendered," with the date of such surrender, and such indorsement
shall be signed by the lessee and the lessor as evidence of the acceptance
thereof, and shall be attested bv a witness ; and the registrar shall there- Memoran-
upon enter in the register a memorial recording the date of such surren- g^^ender.
der, and shall likewise indorse upon the lease a memorandum recording
the fact of such entry having been so made in the register ; and upon

252

MORTGAGES AND ENCUMBRANCES.

Buoh entry having been so made, the estate or interest of the lessee in
such land shall vest in the lessor or in the person in whom, having regard
to intervening ciroumstances, if any, the said land would have vested if
no such lease had ever been executed ; and production of such lease or
counterpart bearing such indorsed memorandum shall be suificient
Proviso. evidence that such lease has been so surrendered : Provided, that no lease
mortgagee, subject to mortgage or encumbrance shall be surrendered without the
consent of the mortgagee or encumbrancee. 49 Y., c. 26, s. 75.

See sec. 70 ante ; leases for less than three 3'6ar8 need
not be in Form H and under sec. 61 ante would be implied
encumbrances although not registered.

Any estate or interest in land may be the subject of a
mortgage or encumbrance. Vide sec. 76 post.

Compare Man. Stat., sees. 92, 98 and 94.

Mortgages

andenoum-

brances.

Estate or
interest
affected
must be
stated.

Form J.

MOBTOAOBH AND EnCOUBSANCES.

76* Whenever any land or estate, or interest in land, subject to the
provisions of this Act, is intended to be charged or made security in
favor of any mortgagee, the mortgagor shall execute a memorandum of
mortgage in the form J in the schedule to this Act, or to the like effect ;
and whenever any such land is intended to be charged with or made
security for the payment of an annuity, rent charge, or sum of money, in
favor of any encumbrancee, the encumbrancer shall execute a memor-
andum of encumbrance in the form K in the schedule to this Act, or to
the like effect ; and every such instrument shall contain an accurate
statement of the estate or interest intended to be mortgaged or encum-
bered, and shall, for description of the land intended to be dealt with,
refer to the certificate of title on which such estate or interest is held, or
shall give such other description as is necessary to identify such land,
together with all mortgages or encumbrances affecting the same, if any.
49 v., c. 26, 8. 76.

Compare sees. 34, 41, 59, 64, antey as to necessity of
registration.

Man. Stat., sees. 80, 91 and 96, and notes pages 144 and
145 ante.

FORM J.
Memobamdum of Mortoaoe.

I, A. B., being registered as owner of an estate {here state nature of
intere8t)y subject, however, to such encumbrances, liens and interests

MOBTOAOEB AMD ENCUMBRANCES. 268

•re notified by memorandam underwritten (or indorsed hereon), of that
piece of land, {description) ^ part of section , township , range

, containing acres, be the same more or less {here state rights of

way, privileges, easements, if any, intended to be conveyed (a) alotig with the
land, and if tlie land dealt with contains all included in the original grants,
refer thereto for description of parcels and diagrams ; otherwise set forth the
boundaries and accompany the description by a diagram), in consideration of
the sam of 9 lent to me by E. F., of {here iiuert description), the receipt
of which earn I do hereby acknowledge, covenant with the said E. F., —

Firstly. That I will pay to him, the said E. F., the above sam of
9 , on the day of

Secondly. That I will pay interest on the said sum at the rate of
on the % , in the year, by equal payments on the day of

, and on the day of , in every year.

Thirdly, {Here set forth special covenants, if any.)

And for the better securing of the said E. F. the repayment, in manner
aforesaid, of the principal sum and interest, I hereby mortgage to the
said £. F. my estate and interest in the land above described.

In witness whereof, I have hereunto signed my name this
day of 18 .

Signed by the above named A. B.

as mortgagor this
day of , in presence of

O. H.

{Insert memorandum of mortgages and encun^bratiees.)
For form of transfer of mortgage, see Form L,

49 Vic. cap. 26, sch. form J. See Man. Stat. Sch. G,
page 145 ante.

(a) Quare " charged."

(Signature of Mortgagor.)

FORM K.

Meuoranduu or Encumbrance.

I, A. B., being registered as owner of an estate {state nature of estate). Form K.
tabject, however, to such mortgages and encumbrances as are notified by
memorandum underwritten (or endorsed hereon), of that piece of land of
(deseription) part of section , township , range

containing acres, more or less (here state rights of way,

privileges, easements, if any, intended to be conveyed (a) along with the land, and
if the land dealt with contains all included in the original grant or certificate
of title, refer thereto for description of parrels and diagrams, otherwise set

264 MORTQAOBS AND ENCUMBRANCES.

forth the boundaries and accompany the de$cript'on by a diagram), and denrr
ing to render the said land available for the purpose of securing to and
for the benefit of C. D., of (description) the (sum of money, annuity or rent
charge) hereinafter mentioned : do hereby encumber the said land for the
benefit of the said 6. D., with the {sum, amiuity or rent charge) 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 tJie sum, annmty
or rent cfiarge intended to be secured, the interest, if any, and the events on
which such sum, annuity or rent charge shall become and cease to be payable,
also any special covenants or powers, and any modification oj the powers or
remedies given to an encumbrance by this Act) : And, subject as aforesaid,
the said CD. shall be entitled to all powers and remedies given to an
encumbrancee by '* The Territories Real Property Act,**

In witness whereof I have hereunto \
signed my name this '

day of . in presence (Signature of Eneumbraneer.)

o£ )

{Insert meinorandum of mortgages and encvmbrancesJ)

49 Vic. cap. 26, sch. form E. Bee Man. Stat. Scb. D,
page 146 ante.

(a) Qtuere, "charged.'

»»

Mortgage, 77* Mortgage and encumbrance under this Act shall have effect as
traDsfer ^^ security, but shall not operate as a transfer of the land thereby charged ;
estate. and if default is made in payment of the principal sum, interest, annuity
or rent charge, or any part thereof thereby secured, or in the observance
of any covenant expressed in any memorandum of mortgage or encum-
brance registered under this Act, or that is herein declared to be implied
Powers on in such instrument, and such default is continued for the space of one
nior^agor. calendar month, or for such longer period of time as is expressly limited
for that purpose in such instrument, the mortgagee or encumbrancee
may give to the mortgagor or encumbrancer notice in writing to pay,
within a time to be specified in such notice, the money then due or owing
on such mortgage or encumbrance, or to observe the covenants therein
expressed or implied, as the case may be, and that all competent rights
Notice. and powers will be resorted to unless such default is remedied, — or where
the mortgagor or encumbrancer cannot be found, may give such notice
in that behalf to the mortgagor or encumbrancer in such manner as the
judge, on summary application ex parte, directs. 49 V., c. 26, s. 77.

Compare Man. Stat., sees. 97, 108 and proviso 106.

Power of TS* After such default in payment or in the observance of covenanta
' continuing for the further space of one calendar month from the service

MOBTGAOE8 AND ENCUMBRANCES. 255

of such notice, or for such period as to the judge seems meet, such mort-
gagee or encombrancee is hereby authorized and empowered to sell the
land so mortgaged or encumbered, or any part thereof, and all the estate
or interest therein of the mortgagor or encumbrancer, and, either alto-
gether or in lots, by public auction or by private contract, or by both such
modes of sale^ and subject to such conditions as he thinks fit, and to buy
in and re-sell the same, without being liable for any losses occasioned
thereby, and to make and execute all such instruments as are necessary
for effecting the sale thereof ; and all such sales, contracts, matters and
tilings hereby authorized shall be as valid and effectual as if the mort-
gagor or encumbrancer had made, done or executed the same : and the Receipts
receipt or receipts in writing of the mortgagee or encumbrancee shall be chase^^'
a sufficient discharge to the purchaser of such land, estate, or interest, or money,
of any portion thereof, for so much of his purchase-money as is thereby
expressed to be received ; and no such purchaser shall be answerable for Purchaser
the loss, misapplication or non-application, or be obliged to see to the^^g^^
application of the purchase-money by him paid, nor shall he be con- application
cerned to inquire as to the fact of any default having been made or notice money,
having been given as aforesaid ; and the purchase-money to arise from
the sale of any such land, estate, or interest shall be applied : first, in Applica-
payment of the expenses occasioned by such sale ; secondly, in payment ^^Me' ^^^'
of the moneys which are then due or owing to the mortgagee or money,
eucumbrancee ; thirdly, in payment of subsequent mortgages or encum-
brances, if any, in the order of their priority ; and the surplus, if any
shall be paid to the mortgagor or encumbrancer, as the case may be.
49 v., c. 26, s. 78.

Compare Man. Stat., sees. 104 and 106.

As to priority see sees. 89, 41, 60 and 64 ante.

79. Upon the registration of any memorandum or instrument of Registra-
transfer executed by a mortgagee or encumbrancee, for the purpose of ei^^te^in"'
such sale as aforesaid, the estate or interest of the mortgagor or encum- purchaser,
brancer therein described as conveyed, shall pass to and vest in the pur-
chaser, freed and discharged from all liability on account of such mort-
gage or encumbrance or of any mortgage or encumbrance registered subse-
quent thereto ; and the purchaser shall be entitled to receive a certifi- Certificate
cate for the same. 49 V., c. 26, s. 79. °' *^*^®'

Compare sees. 34, 41, 59, 64, ante, as to necessity of
registration.
Man. Stat. 105, and Rale 17, Sch. S, sec. 26.

SO* When default for six calendar months has been made in the pay- ^lortcagee

*^ •' may nave
ment of the interest or principal sum secured by memorandum of mort- order of

foreclo-

biire. «

256

FOREOLOBURB.

Foieolo-

rarepro-

oedare.

gage, a registered mortgagee may make application in writing to the
judge for an order for foreclosure ; and such application shall state that
such default has heen made as aforesaid — and that the land, estate or
interest mortgaged has heen offered for sale at puhlic auction after proper
notice given to the mortgagor, as in this Act provided, and that the
amount of the highest hid at such sale was not sufficient to satisfy the
money secured hy such mortgage, together with the expenses occaaioned
by such sale, and that notice in writing of the intention of such mort>
gagee to make such application has heen given to the mortgagor, either
personally or hy leaving the same with an adult at his usual or last known
Certificate place of ahode ; and such application shall be accompanied by a oertifi-
requured. ca^ ot the licensed auctioneer by whom such land was put up for sale,
and hy such other proof of the matter stated hy the application as the
judge requires ; and the statements made in such application shall be
verified by the oath of the applicant. 49 V., c. 26, a. 80.

Compare Man. Stat., sec. 106.

judge offer
Ingland
for sale.

Notice by 81, Upon receiving such application the judge shall cause notice to be
published once in each of three successive weeks in a newspaper likely to
give the best notice, offering such land for sale, — and shall, in such case,
limit and appoint a time, not less than one month from the date of the
last advertisement of such notice in such paper, upon or after which the
judge may issue to such applicant an order for foreclosure, unless, in the
interval, a sufficient amount has been realized by the sale of snch land to
satisfy the principal and interest moneys due and all expenses occasioned
by such sale and proceedings; and every such order for foredosnre,
under the hand of the judge and entered in the register, shall have the
effect of vesting in the mortgagee all the estate and interest of the mort-
gagor in the land mentioned in such order, free from all right and equity
of redemption on the part of the mortgagor or of any person claiming
through or under him. 49 Y., c. 26, s. 81.

Compare Man. Stat., sees. 107 and 108.

Order for

foreclo-

Bore.

Entry of

forecjo-

Bure.

Begistra-
tion of diB-
cbarge.

Bntry of
discharge

83* Upon the production of any memorandum of mortgage or
encumbrance, having indorsed thereon or attached thereto a receipt or
acknowledgment signed by the mortgagee or encumbrancee, and proved
by the affidavit of an attesting witness, discharging the land specified or
any part of the land comprised in such instrument, from the whole or
any part of the principal sum or annuity secured thereby, or upon proof
being made to the satisfaction of a judge of the payment of all moneys
due on any mortgage or encumbrance and the production to the registrar
of a certificate signed by the judge to that effect, the registrar shall there-
upon make an entry in the register, noting that such mortgage or
encumbrance is discharged, wholly or partially, or that part of the land

DI8CHABOES. 257

is discharged as aforesaid, as the case requires ; and upon such entry Effect of
being so made, the land, or the estate or interest in the land, or the por- ^^ ^'
tion of the land mentioned or referred to in such indorsement as afore-
said, shall cease to be subject to or liable for such principal sum or
annuity, or, as the case may be, for the part thereof noted in such entry
as discharged.

49 Yic. cap. 26, sec. 82, as amended by 51 Vic. cap. 20,
sec. 15.

Compare sec. 100 of the Manitoba Statute, and notes to
sec. 74, p. 121 ante.

S3* Upon proof of the death of the annuitant, or of the occurrence of Death of
the event or circumstance upon which, in accordance with the provisions or oMsa?

of any memorandum of encumbrance, the annuity or sum of money ^^<>° of

encuxQ-
thereby secured ceases to be payable, and upon proof that all arrears of brance.

the said annuity and interest or money have been paid, satisfied or dis-
charged, the registrar shall, upon the order of the judge, make an entry Entry,
in the register book, noting that such annuity or sum of money is satisfied
and discharged, and shall cancel such instrument ; and upon such entry its effeot.
being made, the land shall cease to be subject to or liable for such annuity
or smn of money, and the registrar shall, in any or either such case as
aforesaid, indorse on the grant, certificate of title, or other instrument
evidencing the title of the mortgagor or encumbrancer to the land mort-
gaged or encumbered, a memorandum of the date on which such entry as Begtstrar* a
aforesaid was made by him in the register book, whenever such grant, ^'^'
certificate of title or other instrument is presented to him for that pur-
pose. 49 v., o. 26, s. 83.

Man. Stat., sec. 102.

84* If any mortgagor becomes entitled to pay off the mortgage money. Payment
and the registered mortgagee is absent from the Territories and there is t^^^^k
no person authorized by registered power of attorney to give a receipt i' ^o per-
to the mortgagor for the mortgage money 'after the date appointed for the Territories
redemption of any mortgage, the judge, on application to him and proof tSe^^ney
of the facts and of the amount due for principal and interest upon such
mortgage, may direct the payment into a chartered bank having a branch
or agency in the district, or if not in the district, in the Territories, of
such mortgage money, with all arrears of interest then due thereon, to
the credit of the mortgagee or other person entitled thereto ; and there-
upon the interest upon such mortgage shall cease to run or accrue :

2. The registrar shall, upon presentation of the judge's order and of Entry of
the receipt of the manager or agent of such bank for the amount of the ^^^^'^^se-
said mortgage money and interest, make an entry in the register dis-
MAN.L.A. 17

258 DIBCHABOE8.

charging suoh mortgage, stating the day, hour and minate on which such
entry is made :

Entry to 3. Sach entry shall be a valid discharge of such mortgage and shall

discbarge. ^^^'^ ^^^ same force and effect as is hereinbefore given to a like entry

when made upon production of the memorandum of mortage with the

receipt of the mortgagee :

See sec. 82 ante.

Notice to 4. The registrar shall, when such order and receipt are presented to
* him, send a notice of the fact to the mortgagee by letter addressed by
mail to his last known place of abode :

As to filing of post office address, see sec. 56 ante.

Indorso- 5, The registrar shall indorse on the certificate of title, or other instni-

ment on

oertiflcate ment as aforesaid, and also on the memorandum of mortgage, whenever
of title. those instruments are brought to him for that purpose, the several parti-
culars hereinbefore directed to be indorsed upon each of such instruments
respectively :

Estoppel. 6. After payment as aforesaid of any mortgage money and interest, the
mortgagee entitled thereto shall not recover any further sum in respect of
such mortgage than the amount so paid. 49 Y., c. 26, s. 84.

Compare Man. Stat., sec. 101.

Transfer of 95« Mortgages, encumbrances and leases may be transferred by a
etc. ' transfer executed in the form L in the schedule to this Act, and the

transfer shall be registered in the manner hereinbefore set forth ; and
transfereeb shall have priority according to the date and time of registra-
tion :

Transfer of 2. Any mortgagee may transfer a part of the sum secured by the mort-
Moared by g^e by a transfer executed in the form M in the schedule to this Act, and
mortgage. ^^^ p^,.^ g^ transferred shall continue to be secured by the mortgage, and
may be given priority over the remaining part, or may be deferred, or
may continue to rank equally with it under the security of the original
mortgage, as stated in the instrument of transfer ; and the registrar aliail
enter on the certificate of title a memorandum of the amount of the
mortgage so transferred, the name of the transferee, and how the sam so
transferred is to rank and shall notify the mortgagor of the facts. 49 V.«
c. 26, 8. 85.

Man. Stat., sec. 98. Compare sees. 89, 41, 60, 64 and
78 ante as to priority.

ASSIGNMENTS. 259

FORM L.

{Indorse numorafidum of transfer of mortgage or encumbrance or lease.)

Transfeb of Mortoaoe, Encumbrance ob Lease bt Indorsement.

I, the within mentioned C. D., in consideration of 9 Form L.

this day paid to me by X. Y., of , the receipt of

which sum I do hereby acknowledge, hereby transfer to him the mort-
gage (encambrance or lease, as the ease may he) within written, together
with all my rights, powers, title, and interest therein.

In witness whereof, I have hereunto subscribed my name this

day of , 18 .

C. D., Transferrer,

Accepted, X. Y., Transferee,

49 Vic, cap. 26, sch. form L. Compare Sch. G, Man.
Act, p. 148 ante.

FORM M.

Transfer of Part of Mortgage or Encumbrance bt Indorsement.

I, the within mentioned C. D., in consideration of $ Form—

this day paid to me by X. Y., of , the receipt of ^aMler.

which sum I do hereby acknowledge, hereby transfer to him 9
of the mortgage {or encumbrance, as the case may be) within written,
together with all my rights, powers, title, and interest therein, and the
sum so transferred shall be preferred {or deferred or rank equally, as the
case may be) to the remaining sum secured by the mortgage.

In witness whereof, I have hereunto subscribed my name this

day of , 18 .

0. D., Transferrer,

Accepted, X. Y., Transferee.

49 Vic. cap. 26, sch. form M. Compare Sch. H, Man.
Stat., p. 149 ante.

$<!• Upon the registration of any transfer of any mortgage, encum- Effect of
brance or lease, the estate or interest of the transferrer, as set forth in ^q^^^
such instrument, with all rights, powers and privileges thereto belonging transfers
or appertaining, shall pass to the transferee, and such transferee shall
thereupon become subject to and liable for all and every the same require-
ments and liabilities to which he would have been subject and liable if
named in such instrument. 49 Y., c. 26, s. 86.

Man. Stat., sec. 99.

8T» By virtue of every such transfer the right to sue upon any mort- Bights of
gage or other instrument, and to recover any debt, sum of money, annuity ^r**^"'®"®-

360 POWERS OF ATTORNET.

or damage thereunder (notwithstanding the same may be deemed or held
to constitute a choee in action) , and all interest at the time of such transfer
in any such debt, sam of money, annuity or damages, shall be transferred
Proviso : ss so as to vest the same in law in the transferee thereof : Provided always,
that nothing herein contained shall prevent any ooort of competent juris-
diction from giving effect to any trusts affecting the said debt, sum of
money, annuity or damages, in case the said transferee shall hold the
same as trustee for any other person. 49 V., c. 26, s, 87.

See note to Man. Stat., sec. 99. This section corres-
ponds with sec. 89 of the Man. B. P. Act 1885.

Implied §§• In every memorandum of mortgage there shall be implied against

by^nortffa- ^^® mortgagor remaining in possession, a covenant that he will repair
gor in po8- and keep in repair all buildings or other improvements erected and made
upon the land, and that the mortgagee may, at all convenient times, until
such mortgage is redeemed, be at liberty, with or without surveyors or
others, to enter into or upon such land to view and inspect the state of
repair of such buildings or improvements. 49 V., c. 26. s. 88.

Compare B. P. Act (Man.) 1885, sec. 90 ; see note, p.
182 ante.

PowEBs OF Attorney.

Powers of 99* The registered proprietor of any land, estate or interest, may
attorney, authorize and appoint any person to act for him or on his behalf in respect
of the transfer or other dealing with such land, estate, or interest in accord-
ance with the provisions of this Act, by executing a power of attorney in
any form heretofore in use for the like purpose, or in the form N in the
schedule to this Act, or as near thereto as circumstances permit, and a
Begistra- duplicate or attested copy thereof shall be deposited with the registrar,
tion. ^]2Q shall enter in the register a memorandum of the particulars therein

contained and the date, hour and minute it is deposited with him ; and
Power of until such power of attorney is revoked in the manner provided by the
pended ?n- ^^^^ following section, the right of the registered owner to effect a transfer
til revoca- or to otherwise deal with such land, estate or interest shall be suspended.
49 v., c. 26. s. 89.

Compare Man. Stat., sees. 41, 110, 111, 112.
Compare sees. 84, 41, 59, 64, ante, as to necessity of
registration.

FORM N.
Power op Attorney.

Form N. I, A. B., being registered as owner of an estate {here state the nature of

the entate or interest), subject, however, to such encumbrances, liens and

POWERS OF ATTORNEY. 261

interests as are notified by memorandum underwritten {or endorsed
hereon), in {here refer to schedule for description and eorUents of the several
parcels of land intended to be affected, which schedule must contain reference
to the existing certificate of title or lease of each parcel) do hereby
appoint G. D. attorney on my behalf to (here state the nature and extent of
the powers intended to he conferred^ as to sell, lease^ mortgage, etc,,) the lands
in the said schedule described, and to execute all such instruments, and
do all such acts, matters and things as may be necessary for carrying
out the powers hereby given and for the recovery of all rents and sums of
money that may become or are now due, or owing to me in respect of the
said lands, and for the enforcement of all contracts, covenants or
conditions binding upon any lessee or occupier of the said lands, or upon
any other person in respect of the same, and for the taking and main-
taining possession of the said lands, and for protecting the same from
waste, damage or trespass.

In witness whereof, I have hereunto subscribed my name this
day of , 18 .

Signed by the above named A. B. this ]

day of I" (Signature,)

in the presence of X. Y.

49 v., c. 26, sch. form N. Man. Stat. Schs. K and L,
pp. 164 and 165 ante.

As to sealing see notes, p. 167 ante,

HO* Any such power of attorney may be revoked by a revocation order Revooa-
in the form O in the schedule to this Act ; and after the registration of i^fSotSl^
any revocation of a power the registrar shall not give effect to any
transfer or other instrument signed pursuant to such power, unless under
any registration abstract outstanding at the time. 49 V., c. 26, s. 90.

Man. Scat., sec. 112.

FORM O.

Revocation of Poweb op Attorney.

I, A. B., of , hereby revoke the power of attorney given by Form of

me to , dated the day of revooa

In witness whereof, I have hereunto subscribed my name this
day of , 18 .

(Signature of Constituent.)

49 v., c. 26, sch. form 0.

Compare Man. Stat., Sch. M., p. 167 ante.

'262 TRANSMISSIONS.

Transmission.

Land of de- 91* Whenever the owner of any land dies, such land shall, sabject to
owner. ^^^ provisions of this Act, vest in the personal representative of the
Personal deceased owner, who shall, before dealing with such lands, make applica-
ta&^S^to'be ^^^^ ^° writing to the registrar to be registered as owner, and shall produce

registered to the registrar the probate of the will of the deceased owner, or letters of
as ownox'

administration, or the order of the court authorizing him to administer

the estate of the deceased owner, or an office copy of the said probate,
letters of administration or order, as the case may be ; and thereupon the
Memorial, registrar shall enter in the register a memorial of the date of the will and
of the probate or of the letters of administration or order of the court as
aforesaid, the date, hour and minute of the production of the same to
him, the date of the death of such owner, w^hen the same can be ascer-
tained, with such other particulars as he deems necessary :

Batate 2. Upon such entry being made, the executor or administrator, as the

upon re- case may be, shall be deemed to be the owner of such lands ; and the
gistration. j.egig(jj.a,r shall note the fact of such registration by memorandum under

his hand on the probate of the will, letters of administration, order or

other instrument as aforesaid :

Title to re- 3. The title of the executor or administrator to such land shall relate
i'ea^th!^ ^ back and take effect as from the date of the death of the deceased owner :

Certificate 4. The duplicate certificate of title granted to the deceased owner shall

celled. be delivered up to be cancelled or proved to have been lost, and the

registrar shall issue to the executor or administrator a fresh certificate of

title, stating therein the fact that the new registered owner is the executor

or administrator. 49 V., c. 26, s. 91.

Man. Stat., sec. 118.

As to effect of registration compare sees. 59 and 64 ante.

Mortgage, 93. Whenever any mortgage, encumbrance or lease affecting land
mitted by registered under this Act is transmitted in consequence of the will or
will or in- intestacy of the owner thereof, the probate of the will of the deoeased
owner, or letters of administration, or the order of the court authorizing
a person as aforesaid to administer the estate of the deoeased owner,
accompanied by an application in writing from the executor or adminis-
trator, or such other person as aforesaid, claiming to be registered as
owner in respect of such estate or interest, shall be produced to the
icegistra- registrar, who shall thereupon enter in the register and on the instru-
sonalrepre- ment evidencing title to the mortgage, encumbrance or lease transmitted,
sentative. ^^^q ^^e same can be produced, the date of the will and of the probate,
or of the letters of administration, or order of the court as aforesaid, the
date, hour and minute of the production of the same to him, the date of

TRANSMISSIONS. 268

the death of auch owner, when the same can be ascertained, with such
other particulars as he deems necessary :

2. Upon sach entry being made, the execator or administrator, or such Effect
other person, as the case may be, shall be deemed to be the owner of such tratiou.
mortgage, encumbrance or lease, and the registrar shall note the fact of
auch registration by memorandum under his hand on the letters of
administration, probate or order as aforesaid. 49 V., c. 26, s. 92.

Man. Stat., sees. 114, 115, 116.

93. Any person registered in place of a deceased owner, shall hold the Lands of
land in respect of which he is registered upon the trusts and for the pur- truste!
poses to which the same is applicable by this Act or by law, and subject
to any trusts and equities upon which the deceased owner held the same,
but, for the purpose of any registered dealings with such land, he shall be
deemed to be the absolute owner thereof :

2. Any person beneficially interested in any such lands or any estate or Beneficial
interest therein, may apply to a court or judge having jurisdiction, to j^^y ^^
have the same taken out of the hands of the trustee having charge by law ^^^ ^*^^
of such property, and transferred to some other person or persons ; and Coart or
the court or judge, upon reasonable cause being shown, shall name some ^'""Se-
suitable person or persons as owner of the lands, or the estate or interest

in question, as the case may be ; and upon the person or persons named
accepting the ownership and giving approved security for the due fulfil-
ment of the trusts, the court or judge may order the registrar to cancel
the certificate to the trusteet and to grant a new certificate to the person
or persons so named :

3. The registrar, upon the production of such order, shall cancel the Oertlficate
certificate to the trustee, and shall enter in the register a memorandum celled and
of the appointment by order of the court or judge of such person or "^ ^
persons as owner in trust, and a certificate of title shall be issued to him

or them. 49 V., c. 26, s. 93.

Man. Stat., sec. 117.

94 • Every sheriff or other officer charged with the execution thereof, Procesfl
shall, after the delivery to him of any writ or process affecting land, or i|fndu> be
lien, mortgage or encumbrance, or other interest therein, deliver a copy ^.'^^.^^
of every such writ or process so in his hands or that may thereafter be
delivered to him, certified under his hand, together with a memorandum
in writing of the lands intended to be charged therciby to the registrar
within whose district such lands are situate, and no land shall be bound
by any such writ or other process, until such copy and memorandum
have been so delivered ; and the registrar shall thereupon, if the title has Entry by
been registered, or so soon as the title has been registered under the pro-

EXECUTIONS.

visions ot this &ot, anter a memorandnm thereof in the register ; and
from and after the delivery of a oopy of any Boch writ or other prooeaa
and memonuidQm to the registrkr, the ume shall operate oa & oavea^t
agaiDBt the transfer hy the owner of the land mentioned in such memor-
andnm, or of any interest he has therein ; and no transfer shall be made
by him of snob land or interest therein except sabject to sncb writ or
other process.

49 Vic. cap. 26, sec. 94, as amended by 51 Vic. cap. 20,
sec. 16. Compare R. F. Act (Mao.) 1886, sec. 102, et teq,
and oote (4), p. 105 ante.

Such registered writs are implied as iieaa under sec. 61
ante. See notes to sec. 64 ante.

Compare sees. 34, 41, 59, 64, ante, as to necessity of
registration.

The former section was as follows : —

Every sheriff or other offloer charged with the execution thereof, shall,
after the delirery to him of any writ or other process affecting land, or
lien, mortKBge or encnmbranoe, or other interest therein, deliver a copy
of every such writ or process so in his hoods or that may thereafter be
delivered to him, oertifled under his band, together with a memorondnm
in writing of the lands intended to be charged thereby, to the registrar
within whose district such lands are situate ; and no land shall be bonnd
by any such writ or other process, until such copy and memorandum have
been so delivered ; and from and after the delivery of a copy of any such
writ or other process and memorandum to the registrar, the same shall
operate as a caveat against the transfer by the owner ot the land men-
tioned in such memorandum, or of any interest he has therein ; and no
transfer shall he made by him of such land or interest therein except
Bobject to suoh writ or other process.

9B> Upon prodnctioD and delivery to the registrar of a certificate by
jheriff (under bis seat ot office) or other officer, ot the satisfaction of
ithdrawot from his hands of any such writ or process as aforesaid.
hall enter a memorandum to that effect on the re^ster, and from
.cefortU such writ or process shall he deemed to be satisfied. 49 V..
, B. 9S.
lb to Man. Stat, see note to sec. 94 iupra.

S> No sale by a sheriff or other officer as aforesaid, under process of
of any land, shall be ot any effect until the same has been oonBrmed
judge; and upon the production to the registrar of a duly execnted

sheriff's sales, etc. 265

trmnsfer of any land so sold, if an order of confirmation of sach sale is
indorsed on snch transfer, the purchaser at such sale shall be entitled to
be registered as the owner of the interest purchased by him at such sale,
and to a certificate of title to the same. 49 V., c. 26, s. 96.

As to Man. Stat, see note to sec. 94 supra.

V7m The application for the confirmation of a sale made under any Appiica-
pirooess of law, may be made by the sheriff or other officer making such eonfirma-
sale, or by any person interested in such sale, on notice to the owner, ^{P^^
unless the judge to whom such application is made, dispenses with such sales.
notice; and if the sale is confirmed the costs of confirmation shall be costs.
borne and paid out of the purchase-money, or as the judge directs ; but
in case such sale is not confirmed, the purchase-money paid by him shall If not con-
be refunded to the purchaser ; and the judge may make such order as to
the costs of ail parties to the sale and of the application for its confirma-
tion as he thinks just. 49 V., c. 26, s. 97.

As to Man. Stat, see note to sec. 94 supra.

9§« When any land is sold under process of law, the registrar shall. Notice of
upon the production to him of the transfer of the same in the form P in registra-

ihe schedule to this Act, with proof of the due execution thereof, and the tion ot

*^ sheriffs

order of confirmation of such sale, cause a notice to be mailed to the sale, etc.
proper post office address of the person whose interest in such land has
been sold, — and after the expiration of four weeks from the mailing of
such notice shall register the purchaser as the owner of the interest in the Registra-
said land so sold, and shall issue to him a certificate in the prescribed ^"*
form and do all other things necessary for the registration of the vendee
as registered owner of the interest in the land purchased by him, unless
such registration is in the meantime stayed by the order of some court or
judge having jurisdiction, — and in such case the registration shall not be Proviso,
made nor the certificate issued, except accordiLg to the order and direc-
tion of such court or judge. 49 V., c. 26, s. 98.

As to Man. Stat, see note to sec. 94 supra.

FORM P 1. .

Transfbr of Land Undkr Process of Law.

I, , of the Sheriffs,

etc* deeds
person appointed to execute the process hereinafter mentioned, in pursu- '

ance of a writ dated the day of ,

one thousand eight hundred and , and issued out of (insert

name of court), a court of competent jurisdiction, in an action wherein

is the plaintiff, and the

266 sheriff's sales, etc.

defendant, which said

is registered as the owner of the land hereinafter described, snbject to the
morts^ages and encambrances notified hereunder, do hereby, in considera-
tion of the smn of paid to me, as aforesaid,
by £. F. {insert addition) Transfeb to the said £. F. all that piece of land
(h' re insert a sujicient description of tfte /ami, and refer to the debtor's certifi-
eatf of title or prant).

Dated the day of one thousand

ei^ht hundred and

{Si^ature of Officer.)
Mortgages and encumbrances referred to. {State them.)

49 Vic. cap. 26, sch. form P 1. Seals are not shewn as
necessary in this or any of the three following forms.

FORM P 2.

Transfer of Lease, Mobtoaoe, or Encumbrance under Process of Liaw.

Form P 2. I, , of , the person appointed to

execute the writ hereinafter mentioned {or otherwise^ as the case matf be),
in pursuance of a writ of fieri facicu^ tested the day of

one thousand eight hmidred and , and issued out

of {insert name of court) a court of competent jurisdiction, in an action
wherein is the plaintiff and the defendant,

wliich said is registered as the owner of a lease (mortgage

or encumbrance, as tlu case may be) numbered of (of upon)

the land hereinafter described, subject to the mortgages or encumbrances
notified hereunder, do hereby, in consideration of the sum of
paid to me as aforesaid, by £. F. (imert addition) transfer

to the said E. F. the lease (mortgage or encumbrance) granted by

to and in favor
of , dated the day of ,

to, in and over {here describe the land according to the description in the
Unite y mortgage or encumbrance^ and refer to the registered instrument).

Dated the day of , one thousand eight

hundred and

{Signature of Officer.)

Mortgages and encumbrances referred to. {State them.)

49 Vic. cap. 26, sch. form P 2.

sheriff's sales, etc. 267

FORM P 3.

Tranbfer of Land under Decree ob Order of a Court of Competent

Jurisdiction.

I {ituert name)t in parsaance of a decree {or order) of {insert name of Form P3.
court), a court of competent jurisdiction, dated the day

of one thousand eight hundred and , and entered

in the register, vol. , fol. , hereby transfer to £. F. {in»ert

addition) t subject to the mortgages and encumbrances notified hereunder,
all that piece of land being {here insert a sufficient description of the land
and refer to the certificate of title or grant).

Dated the day of , one thousand eight

hundred and

{Signature of Transferrer.

Mortgages and encumbrances referred to. {State them.)

49 Vic. cap. 26, sch. form P 8.

FORM P 4.

Tbansfer of Lease, Mortgaok or Encumbrance, under Decree or Order

of a Court of Competent Jurisdiction.

I {insert name)i in pursuance of a decree or order of {insert name of Form V 4.
court), a court of competent jurisdiction, dated the day

of , one thousand eight hundred and , and entered

in the register, vol. , fol. , hereby transfer to £. F. {insert

addition), subject to the mortgages and encumbrances notified hereunder,
the lease {or mortgage or encumbrance, as the case may be) granted by

in favor of
(of or upon; all that piece of land {liere insert description
of the land according to the description in tlie lease, mortgage or encumbrance,
and refer to the registered instrument.)

Dated the day of , one thousand eight

hundred and

{Signature of Transferrer.)

Mortgages and encumbrances referred to. {State them.)

49 Vic, cap. 24, sch. form P 4.

99m The registrar, upon the production of the register or other sufficient Marriage
proof of the marriage of a female owner of any land, estate or interest, owe ™to^e
accompanied by a statement in writing, signed by her, shall enter on the ^^^^ ^^
register and also upon the certificate of title or other instrument evidenc-
ing the title of such female owner, when produced to him for that purpose.

6o CATXAT8.

the Dune uid description of her hnaband, Che date of the [a&rriftge &nd
where solemnized, aad the date, hour snd minate of the production to
him of the regtster or other sufficient evidence ol snoh marriatie ; and the
ra^eertlfl- '^^trar, apon applicatioD to that effect, and sarrender of the existing
ite. oerti&oate of title, shall deliver a new certificate o[ title, and pertonu each

acts as, in aocordanoe with the provisions of this Act, are necessary for
the purpose of civinf; effect thereto. 49 V., o. 26, s. 9fl.

As to Man. SUt. see note to sec. 94 tupra.

Compare Man. Stat., sec. 180, and Bales in Sch. B, to
that section.

' 100> Aay pereon claiming to be interested ander any will, settlranent
or trust <leed, or any instrument of transfer or tranamisaion. or nnder
any onrc^stered instrument, or otherwise howsoever, in any land, may
lodge a caveat with the registrar to the effect that no disposition of snch
land be made either abaolalely, or in snch manner and to such extent
only as in sDch caveat is expressed, or until notioe has been served on the
caveator, or unless the instmment of disposition be expressed to be sub-
ject to the claim of the caveator, as claimed in snoh caveat, or to any
lawful oonditioDS expressed therein ;

3. A caveat may be in the form Q in the schedule to this Act, and shall
be verified by the oath of the caveator or his agent, and shaU contain an
address within the registration district at which notices may be served :

Man. Stat., sec. 180, Sch. 0, and 180 (8) pp. 182 and
183 ante : also sec. 180 (8) and Scb. Q, pp. 186-169 ante;
see also sec. 48 of Amending Act 1890 (vide Appendix.)

As to Oath see sec. 37 ante.

3. Upon the receipt of a caveat, the regietrar shall make a memoran-
dnm thereon of the date, hour and minute of the receipt thereof, and
shall enter a memorandum thereof in the register and shall forthwith
send a notice of snch caveat through the post ofGce or otherwise to tbe
person against whose title such caveat has been lodged :

As to P. 0. address see sec. 56 ante. Ck>mpare sees. 130
(1), p. 182 and 180 (4), p. 18u ante.

4. So long M any caveat remainn in force the r^istrar shall not enter
in the raster any roemorandam of transfer or other instmment pnr-

CAVEATS. 269

porting to transfer or otherwise deal with or affect the land in respect to
which such caveat is lodged :

Compare sec. 130 (1) and 130 (6) pp. 182 and 186 ante.

5. The owner or other person claiming the land may, by sxmimons, call Setting

&siole
upon the caveator to attend before a court of competent jurisdiction or caveat.

a judge thereof, to show cause why the said caveat should not be with-
drawn ; and the said court or judge may, upon proof that such last men-
tioned person has been summoned, and upon such evidence as the court
or judge requires, make such order in the premises either ex parte or
otherwise as to the said court or judge seems fit :

Vide sec. 130 (2) pp. 190 and 191 ante. * See note to
following sub-division.

6. After the expiration of one month from the receipt thereof, such Caveat to

caveat shall lapse, unless, within that time proceedings in a court of com- ^^^^^th

petent jurisdiction have been taken to establish the caveator's title to the unless pro-

_ ceedings

estate or interest specified in the caveat, and an injunction or order has taken.

been granted, restraining the registrar from issuing a certificate of title

or otherwise dealing with the said land :

Vide sec. 130 (2), (5), (11), pp. 182, 185 and 190 ante ;
and sec. 130 (6) p. 192 ante.

The exceptions as to beneficiaries made in the Manitoba
Statute do not prevail in the Territories.

Schedule B of the Man. Stat, as amended by the Act of
1890, sees. 87 and 38 {vide Appendix) contains Bules of
Practice in matters of Caveat. No rules under either sees.
132 or 138 post have as yet been promulgated in the Ter-
ritories. Cases on practice in Manitoba are referred to
on pp. 182, 187, 191, 193, 194 and 195 ante.

7. The caveator may, by notice in writing to the registrar, withdraw With-
his caveat at any time ; but notwithstanding such withdrawal the court caveat. ^
or judf;e may order the payment by the caveator of the costs of the
caveatee incurred prior to such withdrawal :

Vide sec. 130 (9) p. 189 ante.

8. An entry shall be made by the registrar in the register, of the with- Entry of
drawal, lapse or removal of any caveat or of any order made by the court ^aw'al. etc.
in connection therewith ; and, after such withdrawal, lapse or removal,

270 CAVEATS.

it shall not be lawfal for the same person or for any one on his behalf to
lodge a farther caveat in relation to the same matter :

Vide sec. 130 (13), (14), p. 191 ante.

Uability 9. Any person lodging or continaing any caveat wrongfully and with-
folly enter- oat reasonable canse, shall be liable to make compensation to any person
ing caveat, ^y^^ j^g snstained damage thereby, and such compensation may be
recovered by proceedings at law if the caveator has withdrawn sach
caveat and no proceedings have been taken by the caveatee as herein pro-
vided ; bat if proceedings have been taken by the caveatee, then such
compensation shall be determined by the court or judge acting in the
same proceedings :

Vide sec. 130 (10) p. 190 ante.

J«><^? °J*y 10. The judge, on application for that purpose, on behalf of any person
dea]ing8,on who is under the disability of infancy, lunacy, unsoundness of mind or
infanto etc <^^>^^<^ from the Territories, may, by order directed to the registrar,
prohibit the transfer or dealing with any land belonging to any sach
person, and the dealing with any land in any case in which it appears to
him that an error has been made by misdescription of such land or
otherwise in any certificate of title or other instrument, or for the pre-
vention of any other improper dealing. 49 V., c. 26, s. 100.

Vide sec. 68 (5) p. 112 ante, and sec. 130 (5), (8), (10),
(12). (13), (14) and (15), pp. 182-192 ante ; and sub-sec. 8
supra. Quarey whether sub-sec. 8 supra affects the powers
of a judge under the last sub-section.

FORM Q.
FoR>i OF Caveat Forbiddino Rboistratiom or Dealing with Lands.

To the Registrar of District :

Take notice that I, A. B., of {insert description)^ claiming {here state the
nature of the estate or interest elaimedt and the grounds upon which such
claim is founded) in {here describe land and refer to grant or certificate of
ti(/e), forbid the registration of any memorandum of transfer or other
instrument until this caveat is withdrawn by the caveator or by the
order of a court of competent jurisdiction, or a judge thei«of, or unless
such dealing is subject to the claim of the caveator, or until after the lapse
of twenty -one days from the date of the service of notice on the caveator at
the following address : {Insert it.)

{Signature of Caveator or his Agent.)
Dated this day of , 18 .

ATTESTATION. 271

I, the above named A. B. {or C. D., agent for the above A. B.) of [resi-

denee and description) make oath {or affirm, as the case may he) and say,

that the allegations in the above caveat are true in sabstance and in fact

[ami if no personal knowledge^ add^ as I have been informed and verily

believe).

Sworn, etc.

(Signature.)

49 Vic, cap. 26, sch. form Q.

Compare Schedules 0, P and Q Man. Stat., pp. 183-189

ante.

Attestation of Instruments.

101» Powers of attorney and instruments requiring to be registered Witness to
under this Act, other than grants from the Crown, orders in council,
orders of a court or a judge, or certificates of any judicial proceedings,
attested as such, shall be witnessed by one person who shall attest the
instrument in the usual legal form of attestation ; and the witness so Oath of
attesting the instrument shall appear before the registrar, deputy registrar
or a judge, stipendiary magistrate, or notary public or a justice of the
peace in or for the Territories, and make an affidavit in the form R in
the schedule to this Act. 49 Vic, c. 26, s. 101, as amended by 51 Vic,
cap. 20, sec. 17.

As to oath see sec. 37 ante.

Compare Man. Stat., see. 74, pp. 120-129 ante.

102* Instruments requiring to be registered under the provisions of As to in-

ihis Act, executed without the limits of the Territories, other than the |x'^?to^
instroments excepted under the provisions of the next preceding section, outof Ter-
shall be witnessed by some person who can write, and who shall make an
affidavit in the form B in the schedule to this Act before one of the
following persons : —

(a) If made in any Province of Canada, before a judge of any court of In Canada,
record, any commissioner authorized to take affidavits in such Province

for use in any court of record in the Territories, or before any notary
public under his official seal ; or —

(b) It made in the United Kingdom, before a judge of any court of In the
record, the mayor of any city or incorporated town under the common Kingdom,
seal of sach city or town, or a notary public under his official seal ; or —

(c) If made in any British colony or possession out of Canada, before a in a British
judge of any court of record, the mayor of any city or incorporated town colony*
under the common seal of such city or town, or notary public under his

official seal ; or —

{d) If made in a foreign country, before the mayor of any city or town, In a foreign
certified under the common seal of any such city or town, or before the ^^^^ ^'

272 ATTESTATION.

British oonsol, vioe-consal or consular agent residing therein, or before
any judge of any court of record or a notary public, under his official
seal. 49 Vic, c. 26, s. 102, as amended by 51 Vic, cap. 20, sec 18.

See notes to sec. 74 of the Manitoba Statute, pp. 120-129
ante.

FORM R.

Affidavit of Attestation of an Instbukent.

I, A. B., of , in the , make oath and

say:—

1. I was personally present and did see

named in the (within or annexed) instrument, who is personally known
to me to be the person named therein, duly sign and execute the same for
the purposes named therein ;

2. That the same was executed on the day of the date thereof, at the

, in the , and that I am the subscribing

witness thereto ;

3. That I, , know the said

Sworn before me, at , in the'

, this day

of A.D. 18

49 Vic. cap. 26, sch. form R.

Compare second form on p. 81 ante referred to under
sec. 74 at p. 121 ante.

Ejectment — Absubance Fund, etc.

Actions of 103. No action of ejectment or other action for the recovery of any
ejectment, j^^^ shall lie or be sustained against the registered owner, under this
Act, for the estate or interest in respect to which he is so registered,
except in any of the following cases, that is to say, —

Mortgagor (a) The case of a mortgagee as against a mortgagor in default ;
or encum-
brancer or (h) The case of an encumbrancee as against an encumbrancer in de-
fault ;

Signature.

lessee in
default ;

Fraud ; {d) The case of a person deprived of any land by fraud as against the

person registered as owner of such land through fraud, or as against a
person deriving otherwise than as a transferee bond fide for value, from
or through a person registered through fraud ;

Misdescrip- (e) The case of a person deprived of or claiming any land included in
any grant or certificate of title of other land by misdescription of such

tion

DAMAGES — ASSURANCE FUND. 273

other land or of its boandaries, as agaihst the registered owner of such
other land ;

(/) The case of a registered owner claiming ander an instrument of Double re-
title prior in date of registration ander this Art, in any case in which two ^^ ^^ '
or more grants, or two or more certificates of title, or a grant and a cer-
tificate of title, are registered under this Act in respect to the same land :

2. In any case, other than as aforesaid, the production of the certificate In other
of title shall be an absolute bar and estoppel to any such action against ifS^^^
the person named in such instrument as seized of, or as reglstered^owner |>e absolute
oi; lessee of the land therein described. 49 V., c. 26, s. 103. tion.

Compare Man. Stat., sec. 67.

104* Any person deprived of land or of any estate of interest in land Compenaa-

in consequence of fraud, or by the registration of any other person as deprivation

owner of such land, estate, or interest, or in consequence of any fraud, of Iwid by

error, omission or misdescription in any certificate of title or in any entry eiTor,'etc.

or memorial in the register, may, in any case in which such lands have

been included in two or more grants from the Crown, bring and prosecute Action for

an action at law for the recovery of damages against such person as the ^d^^S-

judge appoints, — and in any other case against the person upon whose j^^^^^^n of a

application such erroneous registration was made, or who acquired title

to the estate or interest in question through such fraud, eiTor, omission,

or misdescription : Provided always, that except in the case of fraud or Defendant

J , ... i. A- • J • x- not liable

error occasioned by any omission, misrepresentation, or misdescription unleea

in the application of such person to be registered as owner of such land, f^j^J °Jq

estate or interest, or in any instrument executed by him, such person

shall, upon a transfer of such land bouA fide for value, cease to be liable

for the payment of any damages which, but for such transfer, might

have been recovered from him under the provisions hereinbefore contained,

ani such damages, with costs of action, may, in such last-mentioned Recovery

case, be recovered out of the land assurance fund, by action against the ^^Qce fund. *

registrar as nominal defendant. 49 V., c. 26, s. 104.

Compare Man. Stat., sec. 132 ; and sec. 45 of the Act of
1890 : (vide appendix.)

lOel* Nothing in this Act contained shall be so interpreted as to leave Purchasers
subject to action for recovery of damages as aforesaid, or to action of g^ees^pro-
ejectment, or to deprivation of the estate or interest, in respect to which tected.
he is registered as owner, any purchaser or mortgagee bona fide for valu-
able consideration of land under this Act, on the plea that his vendor or
mortgagor has been registered as owner throagh fraud or error, or has
derived from or through a person registered as owner through fraud or
MAN.L.A. 18

274 ASSURANCE FUND.

Exception, error, except in the case of misdeflcription, as mentioned in section one
hundred and three. 49 V., c. 26, s. 105.

Compare Man. Stat., sec. 188.

Assurance I06« The land asaaranoe fund shall be formed by the Minister of
fo^ed.^^ Finance and Receiver General, by deducting from the gross fees returned
and paid in to him by the registrars, twenty per cent, of the fees so
received for the purposes of this Act, and investing the same, together
with all interest and profits accrued thereon from time to time in
Canadian Government securities. 49 V., c. 26, s. 106, part.

Compare Man. Stat., sec. 141.

If defen- 107* If the person against whom such action for damages is directed

acSon^ ' to ^ brought as aforesaid, is dead, or cannot be found within the

aftdnet re- Territories, an action for damages may be brought against the registrar

nominal as nominal defendant, for the purpose of recovering the amount of the

deiendan . ^.^ damages and costs against the assurance fund ; and in any such

case, if final judgment is recovered, and also in any case in which

damages are awarded in any action as aforesaid, and the sheriff makes a

return of rwUa horuif or certifies that any portion thereof, with costs

awarded, cannot be recovered from such person, the Minister of Finance

Becovery and Receiver General, upon receipt of a certificate of the court before

from am? which the said action was tried, shall pay the amount of such damage

ance fund, and costs as are awarded, or the unrecovered balance thereof as the case

may be, and shall charge the same to the account of the assurance fond

hereinbefore named. 49 V., c. 26, s. 107.

Compare Man. Stat., sec. 134.

Action for I0§» Any person sustaining loss or damage through any omission,
maylbe" mistake or misfeasance of the registrar, or any of his officers or clerks,

brought ^Q {^}je execution of their respective duties under the provisions of this

against re- *^

Ristrar as Act, and any person deprived of any land or of any estate or interest in

defeiSuJnt l*nd, by the registration of any other person as owner of such land, or by

any error, omission or misdescription in any certificate of title, or m any

entry or memorial in the register, and who, by the provisions of this

Act, is barred from bringing an action of ejectment or other action for

the recovery of such land, estate or interest, may, in any case in which

the remedy by action for recovery of damages, as hereinbefore provided,

is barred, bring an action against the registrar as nominal defendant, for

Payment recovery of damages ; and if the plaintiff recovers final judgment against

Bunmce^ such nominal defendant, the court or judge before whom such action is

fund. tried, shall certify to the fact of such judgment and the amount of sach

damages and costs recovered, and the Minister of Finance and Receiver

General shall pay the amount thereof to the person entitled on prodac-

ASSURANCE FUND. 275

tion of an exemplification or certified copy of the judgment rendered :
Provided always, that notice in writing of every such action, and the Notice of
cause thereof, shall he served upon the Attorney -General of Canada, and ^^ ^°'
also npon the registrar, three calendar months at least before the com-
mencement of such action. 49 V., c. 26, s. 108.

Compare Man. Stat., sec. 185 ; and sec. 84 of Amending
Act of 1890 : {vide appendix.)

109* Iff in any such action, judgment is given in favor of the nominal Costs of
defendant, or the plaintiff discontinues or becomes non-suited, the plain- de^ndant.
tiff shall be liable to pay the full costs of defending such action ; and the
same, when taxed, shall be levied in the name of the nominal defendant,
by the like process of execution as in ordinary civil cases, 49 V., c. 26,
8. 109.

Compare Man. Stat., sec. 186, as amended by sec. 85 of
the Act of 1890 ; {vide appendix.)

no* No action for recovery of damages sustained through depriva- Limitation
tion of land, or of any estate or interest in land, shall lie or be sustained ^ ^^ ^^*'
against the registrar, or against the assurance fund, unless the same is
commenced within the period of six years from the date of such depriva-
tion: Provided nevertheless, that any person under the disability of proviso: in
infancy, lunacy or unsoundness of mind, may bring such action within ^^^^i ^°~
six years from the date on which such disability ceases ; and the plaintiff
in any such action within six years from the date on which such dis- Persons
ability ceased, and the plaintiff in any such action at whatever time it is ticrnon^^
brought, and the plaintiff in any action for the recovery of land, shall be suited,
non-suited in any case in which it appears to the satisfaction of the
judge before whom such action is tried, that such plaintiff or the person
through or under whom he claims title had notice by personal service, or
otherwise was aware of such delay, and wilfully or coUusively omitted to
lodge a caveat or allowed such caveat to lapse. 49 V., c. 26, s. 110.

Compare Man. Stat., sec. 187.

lit. Whenever any amount has been paid out of the assurance fund Recovery
on account of any person, such amount may be recovered from him, or if pLfdou^ of
dead, from the estate of such person, by action against his personal a^norance
representatives, in the name of the registrar ; and a certificate signed by
the Minister of Finance and Beceiver Oeneral of such payment out of the
assurance fund, shall be sufficient proof of such debt ; and whenever any if party
amount has been paid out of the assurance fund on account of any person of Tex^-^^^
who has absconded, or who cannot be found within the Territories, and has tories.
left any real or personal estate within the same, the judge, upon the

276 ASSURANCE FUND.

application of the registrar, and npon the production of a certificate

signed by the Minister of Finance and Receiver Greneral that the amount

has been paid in satisfaction of a jadgment against the registrar as

nominal defendant, may allow the registrar to sign jadgment against

snch person forthwith for the amount so paid ont of the assurance fund,

to b?"^"^ together with the costs of the application ; and such judgment shall be

final by final, subject only to such right to have such judgment opened up, as may

® ^" ^' be provided in relation to ordinary procedure in the territory in which

the real property is situate, in cases of judgment by default; and snch

judgment shall \!e signed in like manner as a final judgment by default

If no pro- in an adverse suit, and execution may issae immediately ; and if such

satisfy person has not left real or personal estate within the Territories sufficient to

claim. satisfy the amount for which execution has issued as aforesaid, the

registrar may recover such amount, or the unrecovered balance thereof,

by information against such person at any time thereafter in the

Exchequer Court of Canada at the suit of the Attorney General of

Canada. 49 V., c. 26, s. 111.

Compare Man. Stat., sec. 188.

Assarance 112. The assurance fund shall not, under any circumstances, be liable
lia^Ie"in ^^^ compensation for any loss, damage or deprivation occasioned by the
cases of breach by a registered owner of any trust, whether express, implied or con-
structive ; nor in any case in which the same land has been included in two
or more grants from the Crown ; nor shall the assurance fund be liable in
any case in which such loss or deprivation has been occasioned by any land
heing included in the same certificate of title with other land, through
misdescription of the boundaries or parcels of any land, unless, in the case
jast aforesaid, it is proved that the person liable for compensation and
damages is dead, or has absconded from the Territories, or has been
adjudged insolvent, or the sheriff has certified that he is not able to
realize the full amount and costs awarded in any action for such compensa-
tion; and the said fund shall be liable for such amounts only as the
sheriff fails to recover from the person liable as aforesaid. 49 V., o. 26,
s. 112.

Compare Man. Stat., sec. 189.

Bemedial Pboceedinqs.

Appeal 113« If any person is dissatisfied with any act, omission, ref usal, deci-

of omissfon s^^"' direction or order of the registrar, such person may require the
of registrar, registrar to set forth, in writing under his hand, the grounds of such act,
omission, refusal, decision, direction, or order, and such person may then
apply to the judge by petition, setting forth the grounds of his dissatis-
faction ; and the judge, having caused the registrar to be served with such
petition, shall have jurisdiction to hear the said petition, and to make

REFERRED CASES. 277

sach order in the premises, and as to the costs of the parties appearing
upon such petition, as the circumstances of the case require. 49 V., c. 26,
8. 113.

Compare Man. Stat., sec. 118.

114« Whenever a question arises with regard to the performance of Registrar
any duty, or the exercise of any function by this Act conferred or imposed doubtful
upon the registrar, — or whenever, in the exercise of any duty of the ??^^ ^
registrar, a question arises as to the true construction or legal validity or
effect of any instrument, or as to the persons entitled, or as to the extent
or nature of the estate, riglit or interest, power or authority of any person
or class of persons, or as to the mode in which any entry ought to be Form of re-
made on the register or certificate of title, or as to any doubtful or uncer-
tain right or interest stated, or claimed to be dealt with by the registrar,
he may refer the same in the form S in the schedule to this Act, to the
judge, who may allow any of the parties interested to appear before him
and summon any others of such persons to appear and show cause, either
personally or by counsel or attorney, in relation thereto ; and the judge. Proceed-
having regard to the persons appearing before him, whether Bommoned JX^'""*
or not, shall decide the question, or direct any proceedings to be insti-
tuted for that purpose, and direct such particular form of entry to be
made on the register or certificate of title as under the circumstances
appears to be just. 49 V., c. 26, s. 114.

See sec. 48 ante, and Man. Stat., sec. 120.

FORM S.

Referencb by Bboibtrar to a Judos.

(DaU.)

In the matter of the registration of transfer {or as the case may he) A.B.
to CD.

The registrar under section one hundred and fourteen of ** The Terri-
tories Real Property Act" hereby humbly refers the following matter to
the court, to wit : (Here state briejiy the difficulty which has arisen.)

The parties interested, so far as the registrar knows or has been
informed, are : (Here give the names.)

(Signature.)

Registrar of Titles. [L.S.]

40 Vic. cap. 26, sch. form S.

115. If it appears to the satisfaction of the registrar that any grant. In c^ of
certificate of title, or other instrument has been issued in error, or con- error,' etc.,
tains any misdescription of land, or boundaries,— or that any entry or mJSbe**'**

cancelled.

278 FRAUD CANCELLATIONS.

indorsement has been made in error on any grant, certificate of title or
other infltrament, — or that any such Rrant, certificate, instnunent,
entry or indorsement has been fraudulently or wrongfully obtained, —
or that any such grant, certificate, or instrument is fraudulently
or wrongfully retained, he may, by written demand, require the person
to whom such grant, certificate or instrument has been so issned,
or by whom it has been so obtained or is retained, to deliver up the same.
Judge or for the purpose of being cancelled or corrected, as the case reqoires ; and
enforce in case such person refuses or neglects to comply with such requisition,
^S^^tHad*^ or cannot be found, the registrar may apply to the court or judge to issue
a summons for such person to appear before him and show cause why
such grant, certificate or other instrument should not be delivered up to
be cancelled or corrected as aforesaid and if such person, when served
with such summons, neglects or refuses to attend before such court or
judge at the time therein appointed, the court or judge may issue a
warrant authorizing and directing the person so summoned to be appre-
hended and brought before the said court or judge for examination.
49 v., c. 26, s. 115.

Compare Man. Stat., sec. 121.

Examlna- 116* Upon the appearance before the court or judge of any person
BODB^fore summoned or brought up by virtue of a warrant as aforesaid, such court
judge. or judge may examine such person upon oath, and in case it appears right
so to do, may order such person to deliver up such grant, certificate of
Power to title or other instrument as aforesaid ; and upon refusal or neglect by
such person to deliver up the same, pursuant to such order, or to be put
under oath, or to be examined, or to answer any question touching the
matter after being sworn, may commit such person to the nearest com-
mon gaol for any period not exceeding six months, unless such grant,
certificate of title or other instrument is sooner delivered up, or sufficient
explanation is made why the same cannot be done, and in such case, or
in case such person has absconded so that summons cannot be served
Oancella* upon him as hereinbefore directed, such court or judge may direct the
tiflnate by ' registrar to cancel or correct any certificate of title or other instrument,
?^dffe °' °^ ^^^ entry or memorial in the register relating to such land, and to
substitute and issue such certificate of title or other instrument or make
such entry as the circumstances of the case require, and the registrar
shall obey such order. 49 V., c. 26, s. 116.

Compare Man. Stat., sees. 122, 124-127.

Court or 117- In any proceeding respecting land or in respect of any trans-

order can- action or contract relating thereto, or in respect of any instrument,
oellatioD, caveat, memorial or other entry affecting land, the court or judge, by
decree or order, may direct the registrar to cancel, correct, substitute or

RENEWING CERTIFICATES. 279

issae any certificate of title, or make any memorial or entry in the regis-
ter, and otherwise to do every such act or make every such entry neces-
sary to give effect to such decree or order. 49 V., c. 26, s. 117.

Compare Man. Stat., sec. 123 and notes.

General Provisions.

ttS* Upon the application of any owner of lands held under separate Registrar

cartificates of title, or under one certificate of title, and the delivering up Sepa^te*'*'^

of such certificate or certificates of title, the registrar may issue to such certificates

to Rftmfi
proprietor a single certificate of title for the whole of such land, or several person and

certificates, each applying to a portion of such lands, in accordance with Jj^JfjSSao

Bach application, and as far as the same may he done consistently with for whole

any regulation for the time being in force respecting the parcels of land '^ '

that may be included in one certificate of title ; and, upon issuing any

such certificate of title, the registrar shall enter on the new certificate

of title all the memorials to which the piece of land is at the time

snbject, and shall cancel the previous certificate of title of such laud so

deliver J. I up, and shall endorse thereupon a memorandum, setting forth

the occasion of such cancellation and referring to the certificate of title

8o issued. 49 V., c. 26, s. 118.

Compare Man. Stat., Bale 21, Scb. S., sec. 26.

IIQ. In the event of a certificate of title of land being lost or destroyed Provision
the owner of such land, together with other persons, if any, having know- i^gg^or des-
ledge of the circumstanceSr may make a declaration, stating the facts of tmction of
the case, the names and descriptions of the registered owners, and the
particulars of all mortgages, encumbrances and other matters affecting
such land and the title thereto, to the best of declarant's knowledge and
belief ; and the registrar, if satisfied of the truth of such declaration and
the bond fides of the application, may issue to the owner of such land a
provisional certificate of title of such land, which provisional ceitificate Provisional
shall contain an exact copy of the original certificate of tible bound up in ^^ ^ ^^^^'
the registe.*, and ot every memorandum and indorsement thereon, and shall
also contain a statement why such provisional certificate is issued ; and
the registrar shall, at the same time, enter in the register notice of the Entry in
issuing of such provisional certificate and the date thereof, and why it ^^ ^^^^'
was issued ; and such provisional certificate shall be available for all
purposes and uses for which the grant or certificate of title so lost or
destroyed would have been available, and as valid, to all intents, as such
lost certificate : Provided always, that the registrar, before issuing such Notice to
provisional certificate, shall give at least thirty days' notice of his inten- r^slr^. ^
tion so to do, in some newspaper published in the registration district, if

280 HAPS AND PLAK8.

there is one, and by posting such notice upon the door of the registry
office, and in some other public place. 49 V., c. 26, s. 119.

Compare Man. Stat., sec. 68 (7) ; and see form of notice,
p. 114 ante.

Maps of ISO* Any owner subdividing land for the pnrpose of selling the

slon of ' same in allotments, as a town plot, shall deposit with the registrar a map
land. of gQQ)) town plot, — which map shall be on a scale of not less than oite

inch to four chains, and shall show the namber of the section, township
and range, or the number of the river lot, or the name of the district or
reservation, as the case may be, in which the land lies ; also the number
of the meridian west of which the said range, river lot, district or reser-
vation is situated, as well as all boundary lines of the section or pections,
river lot, district or reservation, within the limits of the land shown on
the said map, and shall also exhibit distinctly all roads, streets, passages,
Partloalars thoroughfares, squares or reservations, appropriated or set apart for
public use, with the courses and widths thereof respectively, the length
and width of all lots, and the courses of all division lines between the
respective lots within the same ; and such Iocs shall be marked with
distinct numbers or symbols ; and such map shall further show the
courses of all streams or waters within the limits of the land included in
Map to be such map ; and every such map shall be signed by the owner or bis
J^gS^el^^ agent, and certified, in the form T in the schedule to this Aot by a
Dominion land surveyor, under and in accordance with the provisions of
sections one hundred and one and one hundred and two of this Act.

49 Vic. cap. 26, sec. 120, as amended by 51 Vic. cap. 20,

sec. 19. Compare sec. 86 ante. See Man. Stat., sec. 69,

and amendment thereto by sec. 23 Act of 1890 {vide

appendix).

FORM T.

I, Dominion Land Surveyor, do solemnly

declare that this plan accurately shows the manner in which the land
included therein has been surveyed and subdivided by me, and that the
said plan is prepared in accordance with the provisions of ** The Terri-
tories Real Property Aet^'' chapter fifty-one of the Revised Statutes of

Canada.

Dated at 16

A. B.
Dominion Land Surveyor.

Implied 191* Every covenant and power declared to be implied in any instni-

may bene- ™®°* ^^ virtue of this Act may be negatived or modified by exprew

IMPLIED COVENANTS. 281

declaration in the instrument or indorsed thereon ; and in any action for gativedor
a sapposed breach of any such covenant, the covenant alleged to be
broken may be set forth, and it shall be lawful to allege that the party
against whom such action is brought did so covenant, precisely in the
same manner as if such covenant had been expressed in words in such
memorandum of transfer or other instrument, any law or practice to the
contrary notwithstanding ; and every such implied covenant shall have Effect of
the same force and effect, and be enforced in the same manner as if it ants.^^^^°*
had been set out at length in such instrument ; and where any memo-
randum of transfer or other instrument in accordance with this Act, is Construed
executed by more parties than one, such covenants as are by this Act to ^ ^o^oi''^-
be implied in instruments of a like nature, shall be construed to be
several and not to bind the parties jointly. 49 V., c. 26, s. 121.

Compare Man. Stat., eec. 144 and notes ; also B. S. C.
cap. 1, sec. 7 (44).

As to the effect of deeds, transfers, etc., see sees. 6-17
ante.

An estate in fee cannot, since the 1st January, 1887, be
changed into a fee-tail, or limited ; sec. 12 ante.

See sees. 84, 59 and 64 as to necessity of registration.

Sec. 85 prohibits the entry of trusts express, implied or
constructive.

Implied covenants, etc., are provided for by sections 61,
69, 71, 72, 74, 77. 78, 80, 86, 87, 88 and 98 of this Act.

19S* The owner of any land or of any lease, mortgage or charge, shall. Owner to
on the application of any beneficiary or person interested therein, be^igQamein
bound to allow his name to be used by such beneficiary or person in any suits,
action, suit or proceeding, which it may be necessary or proper to bring
or institute in the name of such owner, concerning such land, lease, mort-
gage or charge, or for the protection or benefit of the title vested in such
owner, or of the interest of aoy such beneficiary or person ; but neverthe- But en-
less such owner shall, in any case, be entitled to be indemnified in like demnity.
manner as, if being a trustee, he would, before the passing of this Act,
have been entitled to be indemnified in a similar case of his name being
used in any such action, suit or proceeding by his cestui que trust. 49 V.,
c. 26, s. 122.

Compare Man. Stat., sec. 145.

Guardian
123* Whenever any person, who, if not under disability, might have or commit-

made any application, given any consent, done any act, or been party to for person

any proceeding under this Act, is a minor, idiot or lunatic, the guardian JJuuv^*

282 GUABDIANS, ETC.

or committee of the estate, respectively, of snch person may make aach
application, f^ve such consent, do such act, and be party to such proceed-
ing as such person if free from disability might have made, given, done
and been party to, and shall otherwise represent such person for the pur-
poses of this Act ; and whenever there is no guardian or committee of the
Goart or estate of any such person aforesaid being infant, idiot or lunatic, or when-
appoint ever any person, the committee of whose estate if he were idiot, or lunatic,
oouunUt^^ ^^^^^ ^ authorized to act for and represent such person under this Act,
is of unsound mind and incapable of managing his affairs, but has not
been found an idiot or lunatic under inquisition, any court of competent
jurisdiction or a judge thereof, may appoint a guardian of such person
for the purpose of any proceedings under this Act, and from time to time
change such guardian. And whenever such court or a judge thereof sees
Next friend fit, it or he may appoint a person to act as the next friend of a married
woman. woman for the purpose of any proceeding under this Act, and from time
to time remove or change such next friend. 49 V., c. 26, s. 123.

Compare Man. Stat., sec. 148 and form given on page
208 ante.

How pur- 194* Whenever, in any action, suit or ether proceeding affecting the
valuable title to land or other estate or interest therein, subject to the provisions
considerar ^f ^j^jg ^^^^ ^ becomes necessary to determine the fact whether the trans-
be ascer* feree, mortgagee or encumbrancee, or lessee, is a purchaser or transferee

^A |f% fwl

for valuable consideration or not, any person who is a party to snch
action, suit or other proceeding, may give in evidence any transfer, mort-
gage, encumbrance, lease or other instrument affecting the title to such

land, estate or interest in dispute, although the same is not referred to in
the certificate of title, or has been cancelled by the registrar. 49 V., c. 26,
s. 124.

Compare Man. Stat., sec. 146.

Encum- l!i5« Any mortgage or other encumbrance created by any party right-

prior to fully in possession of land prior to the issue of the grant, may be filed in
^^m d^^^ ^^^ oflice of the registrar, who shall, on registering such grant, enter in
the register and endorse upon the certificate of the title before issuing the
same to the applicant owner thereof a memorandum of snch mortgage or
encumbrance; and when so entered and indorsed, the said mortgage
or encumbrance shall be as valid as if made subsequent to the issue of
the grant ; and if more than one mortgage or encumbrance are filed, they
shall be registered in the order of time in which they have been filed in
the office. 49 V., c. 2G, s. 125.

Compare Man. Stat., sees. 81 and 95, and amending Act
of 1890, sec. 29 {vide appendix).

SPECIFIC PERFORMANCE. 288

196. Except in the case of fraad, no person, contracting or dealing Purchaser
with or taking or proposing to take a transfer from the registered owner ed by
of any registered estate or interest, shall be bound or concerned to inquire cept^m cue
into or ascertain the circumstances in, or the consideration for which of ftaad.
such registered owner, or any previous registered owner of the estate
or interest in question is or was registered, or to see to the application of
the purchase money or of any part thereof, nor shall he be affected by
notice, direct, implied or constructive, of any trust or unregistered
interest, — any rule of law or equity to the contrary notwithstanding;
and the knowledge that any trust or unregistered interest is in existence,
flhall not of itself be imputed as fraud. 49 V., c. 26, s. 126.

See sec. 85 ante ; and compare Man. Stat., sec. 85.

1S7« In any suit for specific performance brought by a registered Suits for
owner of any land under this Act, against a person who has contracted p^^orm-
to purchase such land, not having notice of any fraud or other circum- ^i^ce.
stances which, according to this Act, would affect the right of the vendor,
the certificate of title of such registered owner shall be held conclusive
evidence that such registered owner has a good and valid title to the land,
for the estate or interest therein, mentioned or described, and shall
entitle such registered owner to a decree for the specific performance of
such contract. 49 Y., c. 26, s. 127.

See sees. 80 and 119 ante as to copies of instruments,
and provisional certificates.
Compare Man. Stat., sec. 66.

1S8* Upon the transfer of any land, estate or interest under the pro- Insertion
visions of this Act, to two or more persons as joint owners, to be held by "nosSrviv-
them as trustees, it shall be lawful for the transferrer to insert in the orahip."
memorandum of transfer or other instrument the words ** no survivor-
ship ; " and the registrar shall, in such case, include such words in the
memorial of such instrument, to be entered by him in the register as here-
inbefore directed ; and shall also enter the said words upon any certificate
of title issued to such joint owners pursuant to such memorandum of
transfer ; and any two or more persons registered as joint owners of any Joint

land, estate or interest, under this Act, held by them as trustees, may, by ^y^'^
writing under their hand, authorize the registrar to enter the words " no authorize

tna
aut
entry,
survivorship " upon the certificate of title or other instrument evidencing

their title to such estate or interest, and also upon the duplicate of such

instrument in the register or filed in his office ; and after such entry has Effect of

been made and signed by the registrar in either such case as aforesaid, it register.

shall not be lawful for any less number of joint proprietors than the

number then registered to transfer or otherwise deal with the said land.

284 ** NO SURVIVORSHIP.

estate or interest, without obtaining the sanction of a court or a judge
thereof, by an order on motion or petition. 49 V., c. 26, s. 128.

Compare Man. Stat., sec. 82.

Notice be- 12fl« Before making any such order as aforesaid, the court or judge

of court or shall, if it seems requisite, cause notice of intention so to do to be properly

judge. advertised, (a) and in such cases appoint a period of time within which any

person interested may show cause why such order should not be made ;

and thereupon the said court or'judKe may order the transfer of such land,

estate or interest to any new owner or owners, solely or jointly with or in

the place of any existing owner or owners, or may make such order in the

premises as the court thinks jupt, for the protection of the persons

beneficially interested in such land, estate or interest, or in the proceeds

Deposit of thereof ; and upon such order being deposited with the registrar, he shall

entry make such entry, and upon such entry being made, the person or persons

thereof. named in such order shall be registered as owner or owners of such land,

estate or interest. 49 V., c. 26, s. 129.

Compare Man. Stat., sec. 88.

(a) There is no general provision as to how notices are
to be advertised. Compare directions as to notices required
by sees. 52, 81, 98 and 119 ante. Sec. 68 ante saves the
rights of bona fide purchasers against impeachment for
want of notice. See also B. S. C. cap. 189, sec. 7.

Jurisdic- 130* Nothing contained in this Act shall take away or afifect the
courts as to jurisdiction of any competent court on the ground of actual fraud, or over
tract amf contracts for the sale or other disposition of land, or over equitable

equitable interest therein. 49 V., c. 26, s. 130.
interests.

Compare Man. Stat., sec. 129.

Exceptions 131« Whenever, in any grant, or instrument under this Act, any mines
'or minerals are excepted from the grant or transfer, the registrar, on
issuing a certificate of title, shall therein insert the words so used in the
grant or instrument. 49 V., c. 26, s. 131.

Compare Man. Stat., sec. 84. See also sec. 54 ante.

Books, 132. The Governor in Council may, from time to time, provide the

rules, etc. necessary hooks and forms, provide any additional forms he deems

necessary, and make such rules and regulations as are necessary to carry

the provisions of this Act into effect ; and may make such rules and

regulations as to him appear necessary for giving effect to this Act, in

FEES AND COMMISSION. 285

cases unprovided for, according to its true intent and purpose. 49 V.,
c. 26, 8. 132.

Compare Man. Stat., sec. 26.

So far no rules and regulations have been promulgated
under this section.

138* The Grovemor in Council may, from time to time, settle by Fees,
tariff the fees to be paid under the provisions of this Act, or in connection
therewith :

2. Except as herein otherwise provided, there shaU be paid, together Commis-
with the fees under this Act which are, from time to time, fixed by the
Governor in Council, one-fifth of one per cent, on the value of the real
property registered, if such value amounts to or is less than five thousand
doUalrs, and one-tenth of one per cent, on the additional value, when such

value exceeds five thousand dollars :

3. The value shall be ascertained by the oath or solemn affirmation of How value
the applicant, owner or person acquiring such land ; and if the registrar certained.*
is not satisfied as to the correctness of the value so affirmed or sworn to,

he may require such applicant, owner or person acquiring such land to
produce a certificate of such value, under the hand of a sworn valuator,
app3inted by a jud^e, — which certificate shall be received as conclusive
evidence of such value for the purpose aforesaid.

49 Vic. cap. 26, sec. 133, as amended by 61 Vic. cap. 20,
sec. 20.

Compare Man. Stat., sees. 21, 71 and 140.

Tariff of Fees in Land Titles Offices in the Tebritobies.

Government House, Ottawa, Tariff.

Friday, 23rd day of November, 1888.

Present : His Excellency the Governor General in Council.

On the recommendation of the Minister of the Interior, and under the
provisions of the 133rd Section of Chapter 51, of the Revised Statutes of
Canada, intituled: **An Act respecting Real Properties in the Terri-
tories."

His Excellency the Governor General has been pleased to order, and it
is hereby ordered, that the " Tariff of Fees " fixed and settled by Order in
Council of the 15th January, 1887, as the fees which shall be demanded
by, paid to, and received by the several Registrars of Land Registration
Districts in the North West Territories, be and the same are hereby
abolished upon the expiration of the Slst December, 1888, and the follow-
ing Tariff of Fees substituted in lieu thereof on and after the Ist January,
1889.

274 ASSURANCE FUND.

Exception, error, except in the case of misdeBcription, as mentioned in section one
hundred and three. 49 Y., c. 26, a. 105.

Compare Man. Stat., sec. 188.

Assurance lOO* The land assurance fund shall be formed by the Minister of
fonned.^^ Finance and Receiver General, by deducting from the gross fees returned
and paid in to him by the registrars, twenty per cent, of the fees ao
received for the purposes of this Act, and investing the same, together
with all interest and profits accrued thereon from time to time in
Canadian Gk)Yemment securities. 49 V., c. 26, s. 106, part.

Compare Man. Slat., sec. 141.

If defen- 107* If the person against whom such action for damages is directed
action * ^ ^ brought as aforesaid, is dead, or cannot be found within the
against re- Territories, an action for damages may be brought against the registrar
nominal as nominal defendant, for the purpose of recovering the amount of the
defendant. ^.^ ^^^^ ,„^ ^, ^^.^^^ ^^^ assurance fund; and in any such

case, if final judgment is recovered, and also in any case in which

damages are awarded in any action as aforesaid, and the sheriff makes a

return of nuUa honay or certifies that any portion thereof, with costs

awarded, cannot be recovered from such person, the Minister of Finance

Recovery and Receiver General, upon receipt of a certificate, of the court before

from fuu^x^ which the said action was tried, shall pay the amount of such damages

ance fund, and costs as are awarded, or the unrecovered balance thereof as the case

may be, and shall charge the same to the account of the assurance fund

hereinbefore named. 49 V., c. 26, s. 107.

Compare Man. Stat., sec. 184.

Action for 10§« Any person sustaining loss or damage through any omission,
may^e^ mistake or misfeasance of the registrar, or any of his officers or clerks,

brought £q i]^Q execution of their respective duties under the provisions of this

against re- *

gistrar as Act, and any person deprived of any land or of any estate or interest in

de^n^nt. ^^^^* ^Y ^^^ registration of any other person as owner of such land, or by

any error, omission or misdescription in any certificate of title, or m any

entry or memorial in the register, and who, by the provisions of this

Act, is barred from bringing an action of ejectment or other action for

the recovery of such land, estate or interest, may, in any case in which

the remedy by action for recovery of damages, as hereinbefore provided,

is barred, bring an action against the registrar as nominal defendant, for

Payment recovery of damages ; and if the plaintiff recovers final judgment against

sunmce^ such nominal defendant, the court or judge before whom such action ia

fund. tried, shall certify to the fact of such judgment and the amount of such

damages and costs recovered, and the Minister of Finance and Receiver

(General shall pay the amount thereof to the person entitled on produc-

ASSURANCE FUND. 275

tion of an exemplification or certified copy of the jadgment rendered :
Provided always, that notice in writing of every such action, and the Notice of
cause thereof, shall he served upon the Attorney-General of Canada, and ^^ °^'
also upon the registrar, three calendar months at least before the com-
mencement of such action. 49 V.. c. 26, s. 108.

Compare Man. Stat., sec. 185 ; and sec. 84 of Amending
Act of 1890 : {vide appendix,)

109* Iff in any such action, judgment is given in favor of the nominal Costs of
defendant, or the plaintiff discontinues or becomes non-suited, the plain- Se^ndant.
tiff shall be liable to pay the full costs of defending such action ; and the
same, when taxed, shall be levied in the name of the nominal defendant,
by the like process of execution as in ordinary civil cases, 49 V., c. 26,
8. 109.

Compare Man. Stat., sec. 186, as amended by sec. 85 of
the Act of 1890 ; {vide appendix.)

no* No action for recovery of damages sustained through depriva- Limitation
tion of land, or of any estate or interest in land, shall lie or be sustained ^ ^^ ^^^'
against the registrar, or against the assurance fund, unless the same is
commenced within the period of six years from the date of such depriva-
tion: Provided nevertheless, that any person under the disability of proviso: In
infancy, lunacy or unsoundness of mind, may bring such action within Jbmtv ^"
six years from the date en which such disability ceases ; and the plaintiff
in any such action within six years from the date on which such dis- Persons
ability ceased, and the plaintiff in any such action at whatever time it is tice non^^
brought, and the plaintiff in any action for the recovery of land, shall be soiled.
non-Buited in any case in which it appears to the satisfaction of the
jndge before whom such action is tried, that such plaintiff or the person
through or under whom he claims title had notice by personal service, or
otherwise was aware of such delay, and wilfully or coUusively omitted to
lodge a caveat or allowed such caveat to lapse. 49 Y., c. 26, s. 110.

Compare Man. Stat., sec. 187.

lit* Whenever any amount has been paid out of the assurance fund Recovery
on account of any person, such amount may be recovered from him, or if plfd^u^ ©f
dead, from the estate of such person, by action against his personal assurance
representatives, in the name of the registrar ; and a certificate signed by
the Minister of Finance and Receiver General of such payment out of the
assurance fund, shall be sufficient proof of such debt; and whenever any if party
amount has been paid out of the assurance fund on account of any person of ^ex^-^^^
who has absconded, or who cannot be found within the Territories, and has tories.
left any real or personal estate within the same, the judge, upon the

288 APPEALS.

Account of 189* The registrar shall keep a correct account of all sums of money
payment to received by him in accordance with the provisions of this Act, and shall
G neral'" P^^ *^® same to the Minister of Finance and Receiver General, at such

times and in such manner as are directed by the Governor in Council.

49 v., c. 26, s. 135.

See Man. Stat., sec. 22.

Proceed- ISO* Proceedings under this Act shall not abate or be suspended by

ab?te.^^ ^^y death, transmission or change of interest, but in any such event the

Judge's judge may make such order for carrying on, discontinuing or suspend-

order. -^^g ^y^^ proceedings, upon the application of any person interested, as

under the circumstances he thinks just, and may for such purpose require

the production of such evidence, and such notices to be given as he thinks

necessary. 49 V., c. 26, s. 136.

Compare Man. Stat., sees. 49, 60, 61 and 118.

Documents 13 7« No petition, order, affidavit, certificate, registration or other
for infer- proceeding under this Act shall be invalid by reason of any informality
mality. or technical irregularity therein, or of any mistake not affecting the sub-
stantial justice of the proceedings. 49 V., c. 26, s. 137.

Compare Man. Stat., sees. 77 and 142.

Appeal. 13S« Any person who feels aggrieved by any judgment or decision

of the court or judge and also the Inspector of Land Titles Offices and
any Registrar or Deputy Re^^istrar, may appeal from any judgment

Composi- or decision to the Court of Appeal ; and for the purposes of this Act the

Court of several judges of the Supreme Court of the North-West Territories

Appeal. flitting together are hereby constituted the Court of Appeal, and a
majority of such judges shall form a quorum. Such Court of Appeal

Sittings, shall be presided over by the senior judge present, and shall sit at least
once in each year at the seat of governmenl of the North-West Terri-
tories for the purpose of hearing appeals from any such judgment or

Powers to decision as aforesaid ; and such court shall have power, by rules and

* orders, to regulate the sittings of the court, the practice and proceedings

on appeal and before it, including costs and payment thereof, and the

Jndcment enforcement of judgments of such court; and such judgment shall be
certified by the presiding judge, and shall be final in all cases.

49 Vic. cap. 26, see. 138 ;-~49 Vic. cap. 25, sec. 30, as
amended by 51 Vic. cap. 20, sec. 21.

This section was recast in 1887 by section six of chapter
thirty of the Statutes of that year (50-51 Vic), but in the

PENALTIES. 289

Statnte (chapter 20) of 1888 the foregoing was substituted
as section 188 of this Act.

Compare sec. 126 of the Manitoba Statute.

Penalties.
189. Every person who,— Puniah-

(a) Wilfully makes any false statement or declaration in any dealing penons

in land under this Act, or— wlSiUy

(6) Suppresses or conceals, or assists or joins in, or is privy to the sup- ^^J^i^

pressing, withholding or concealing from the registrar, court or judge, or guiltv of

either of them, any material document, fact or matter of information, tetters re-

QY lativetore-

gistratioii.

(c) Wilfully makes any false statement in any declaration required
under the authority of or made in pursuance of this Act, or —

(d) Fraudulently procures or is privy to the fraudulent procurement
of any certificate of title or instrument, or of any entry in the register,
or —

(e) Knowingly misleads or deceives the court, the judge, the registrar
or any person hereinbefore authorized to require explanation or informa-
tion in respect to any land or the title to any land under this Act, or in
respect to which any dealing or transmission is proposed to be registered,
or —

(/) Is a party to or privy to any fraudulent act whatever in any matter
connected with the working of this Act, —

ShaU, on conviction before a judge or stipendiary magistrate, without
a jury, be liable to a penalty not exceeding five hundred dollars or to
imprisonment, with or without hard labor, for any period less than two
years. 49 Y., c. 26, s. 139.

Compare Man« Stat., sees. 149 and 150.

END OF PART III.

MAN.L.A. 19

APPENDIX.

CHAPTER 5 OF THE STATUTES OF MANITOBA.

63 VICTORIA.

AN ACT TO AMEND CHAPTER SIXTEEN OF FIFTY-TWO
VICTORIA, BEING "AN ACT RESPECTING REAL PRO-
PERTV IN THE PROVINCE OF MANITOBA."

(Assented to Slat March, 1890.)

£K MAJESTY, by and with the advice and consent of the Legis*
lative Assembly of the Province of Manitoba, enacts as follows :

!• Section 1 of chapter sixteen of the Statutes passed in the fifty- Beo. 1
second year of Her Majesty's reign is hereby repealed, and the following IJ^titi^
section substituted therefor : tion.

1. This Act, with all amendments that may at any time be made Titleof Act
thereto, or to any such amendments may together be cited and known as
"The Beal Property Act of 1889,'' and when, in any statute of this
Province now in force and unrepealed, reference is made to *' The Keal
Property Act of 1885," or to that Act and amendments thereto, under
whatever name that Act and amendments is or are cited, such reference
shall be held to apply to and include ** The Beal Property Act of 1889."

This amendment should be noted at all the forms printed
with the B. P. Act, 1889, in this Manual.

9m Sub-section 4 of section 8 of said Act is amended by adding at the gee. 8, as. 4
end thereof the following words : •' or any hypothecation of such charge." amended.

See note to next section.

3. Sub-section 7 of said section 8 is amended by adding at the end Sec. 8, 88.7
thereof the words •* or any hypothecation of such charge or lien." amenaed.

Compare notes as to sub-leases and sub-mortgages, pp.
22 and 25 ante^ and sections there referred to.

292 APPENDIX.

See notes to sees. 87 and 95 B. P. Acl, 1889, pp. 138
and 148 ante.

BM' 9' m- 17 4L« Sab-section 17 of said section 3 is amended by inserting after the
word " exeoation *' in the second line thereof the words " tax-sale, assign-
ment for benefit of creditors."

Compare sab-sec. (6), sec. 17 and sec. 29 po$t.

Sec. 8. as. 18 5. Sab-section 18 of said section 3 is amended by adding at the end
thereof the words "and whether saoh land was held by the Crown for
the purposes of the Dominion of Canada or for the purposes of any
Province thereof."

See note to sec. 10 infra.

6. Said section 3 is farther amended by adding thereto the following
sub-section :

" Iiaaae" in- (27) The word " lease " shall include a sub-lease, and the word " lessee "

"sab- shall mean and include a " sub-lessee.'*

lease."

Compare note to sec. 87, B. P. Act, 1889, p. 188 ante.
See also sec. 80 post.

B^d of y. Section 8 of said Act is amended by striking out all the words after

the word "council" in the fourth line, and substituting therefor the
words " for the due payment over of all moneys received by him as such
District Registrar."

Seo. 10 re- S. Section 10 of said Act is repealed, and the following subetitnted
pealed, and
Bubstita- therefor :

10. The Registrar-General or his deputy appointed under ** The Real
Property Act of 1885," or any district registrar appointed under this Act,
shall have full power to furnish originals or certified copies of all regis-
ters, books or instruments, or of any certified copies of registers, books or
instruments in his office, affecting lands within the district or under the
control of such Registrar General or District Registrar when such lands
are, under section four of this Act, added to or formed into another dis-
trict, and all such originals or certified copies shall for all purposes be of
Oertifled the same force and effect when deposited in the office of the new district
reoords'to ^B if they were originals and had been originally registered, deposited or
SSeto^ kept in that office. This section shall be read as if it had come into force
on the 5th day of March, 1889.

See note to sec. 48 post.

O. Section 16 of said Act is amended by inserting after the word " as,
in the fourth line thereof, the words ** but no greater effect than," and

APPENDIX 298

by adding at the end of said section the words, " and no registration

made nnder the old system, either prior or subsequent to the said date

80 named shall affect any land, which, at the time of such registration,

was or is subject to, or under the provisions of the new system, so long

as such land remains subject to the new system ; nor shall any registra- After union

tion, made or hereafter made under the new system, affect any land tems nore^'

whioh is not subject to or under the new system ; and no registration giBtoation

made in any registration division prior to the said date so named, or in greater

the office of any land titles district prior to the date when a portion of when regto-

such district is added to some other district, shall, after said date, have tratlon

took place,
the effect of binding any land, other than the land it would have bound

or affected had that registration division not been brought into a land

titles district, or that portion of a land titles district not been added to

some other district." It is hereby declared that this section, as amended, Section re»

was always intended to have the effect and meaning it has, as now '^^^^^

amended.

Compare notes on pages 55 and 56 ante. Quare, what
would be the effect of the amended section upon unregis-
tered Ji. fa. in the sheriffs hands ?

In re Murchison, where a transfer was presented before
the passing of this Act, the District-Begistrar for Winnipeg
refused its registration, except subject to Ji, fa., which had
not been registered as required by the E. P. Act of 1885,
but were still in force in the sheriffs hands, and held
that this registration was merely an additional formality
imposed upon the execution creditors to make writs in the
sheriffs hands bind lands requiring to be dealt with under
the ** New System," and was dispensed with by the repeal-
ing clauses of the K. P. Act of 1889, which removed the
restriction and permitted writs to bind all lands in the
bailiwick as provided by the Administration of Justice Act.

On a reference of the case to the Court, Mr. Justice
Killam held that, for want of registration, the Ji. fa. did
not bind the land, and ordered the issue of the certificate
of title to the transferee clear of any such encumbrances.

The insertion of the words " but no greater eflFect," etc.,
does not so extend the amended section (16) as to afifectany
but the registrations made in old system registry offices

B04 APPENDIX.

prior to their abolition and would leave yi. fa. with the same
binding effect as they had at the time of the above decision.

The section as now amended restricts general liens to the
limits of the district as constituted at the time of their
registration.

Section 83 10» Section 28 of said Act is amended by inserting after the word
*™®° "in," at the end of the first line thereof, the words " any grant of Crown

Croira^"^* lands or in," and by inserting in the third line, after the word *• every,"
grants. the word ** grant," and by inserting before the word "grantor" in
the fifth line, the words " Crown or," and by striking out all the words
in said section, after the word " estoppel " in the eighth line.

Compare notes at page 72, ante.

The Legislature of Manitoba can have no authority that
can in this manner afifect Dominion lands (B. N. A, Act
1867, sees. 91, 92 ;) and it would not appear that the Crown
could in any case be affected by these provisions : B. 8. C.
cap. 1, sec. 7 (46), and C. S. M. cap. 1, sec. 7 (80).

During the present session (1890) of the Dominion Par-
liament a bill has been introduced respecting Grants of
Public Lands, providing that although no words of limita-
tion be used in Crown grants the fee simple shall be there-
by conveyed unless a contrary or different intention be
expressed.

11. Section 34 is amended by adding thereto the following sab-
section : —

When (1) When, by or under any indenture of mortgage, whether under the

dMkdn^ice ^®^ ^^ *^® ®^^ system, and whether heretofore or hereafter made. any
may be notice is stipulated to be given to the mortgagor, his heirs or assigns,
exeoutor or such notice may be given, in cases where such mortgagor or his assign is
Jj^Jj^j'*" dead, to the executor or administrator of such deceased person ; and such
notice shall be as effectual as if made in conformity with such stipulation.

See section 39 infra ; compare sections 99, 108, 104, 106
and 107 of the R. P. Act of 1889 ante.

Section 40 1)2 • Section 40 of said Act is amended by adding thereto the fol-
amended. lo^ug sub-section : —

APPENDIX. 295

(2) Notwithstanding anything in this section contained, an application
«hall not be received to bring under the new system an undivided interest
in any land, unless an application is also made for all other undivided
interests in the same land ; and no withdrawal or rejection of any appli- ^JJ^'V'
<3ation for an undivided interest shall be permitted, unless the application terests.
for all other undivided interests in the same land are withdrawn or
rejected.

Compare section 27 post.

13. Section 46 of said Act is amended by striking out all the words Section 46

iLTH flu A All

from, and including the word '' issue " in the nineteenth line thereof,
down to and including the word " rejection" in the twenty -third line
thereof, and by substituting for such words struck out, the following
words, " cause to be entered in the proper abstract book, under the old
system, a memorandum stating that such application has been withdrawn
or rejected, and upon the entry of such memorandum.*'

Compare note to sec. 42 B. P. Act of 1889 at p. 86 ante.
See note to section 16 post.

1.4* Section 47 of said Act is amended by striking out all the words in Section 47
flaid section after the word " entitled " in the thirteenth line thereof. &i>>^

See note to next section.

15. Section 48 of said Act is amended by striking out the word Section 48
'* certificate " in the fifth line thereof and substituting therefor the word

^* memorandum," and by striking out the word "signed'* in the sixth
line thereof and substituting therefor the words " entered in the abstract
books under the old system."

Compare note to sec. 42, page 86 ante. This and the
two preceding sections simplify the method of returning
land in the operation of the " Old System."

16. Section 56 of said Act is amended by striking out the word " and " Section 56

Am. fill doiL

in the ninth line and substituting therefor the word " or."

17. Section 57 of said Act is amended by inserting in the third line of Section 6T
tub-section (a) after the word " may " the following words " without *™«»ded.
requiring the proceedings necessary under this Act in the case of a lost
certificate of title to be taken/' and by adding thereto the following sub-
section :

Tftz deed to
(b) The expression " tax deed ** or '* tax sale deed '* shall be held to mean include cer-

and include any vesting certificate of the nature or effect of the certificate ^^^^

set forth in sub-section 1 of 49 Vic, cap. 52, section 656. land in

munici-
pality.

296 APPBMDIX.

Vide note (/) section 57, R. P. Act of 1889, p. 100 ante,
as to dispensing with the production of certificate of title.

Sub-section (b) now added covers the case where the
municipality becomes the purchaser of lands within its
boundaries at a sale for arrears of taxes.

Note the distinction between ''deeds " and "transfers ;"
compare notes to sec. 144, B. P. Act 1889, p. 205 ante, and
the amendment as to the meaning of the word " transmis-
sion " by the fourth section of this Act, supra.

Section 63 18. Section 63 of said Act is amended by adding thereto the fol-
*™*** * lowing Bub-seotions :

Caveats. (k) Caveats affecting the land registered since the last date of the certi-

ficate of title.

FL FaB.,etc. (1) Writs of execntion or attachment lodged or maintained in force in
the office of the sheriff of the proper judicial district between the original
date of the certificate of title and the first day of April 1889, in cases
where such date of the certificate of title is prior to said first day of
April.

See notes to sec. 9 of this Act, supra.
Compare note to sec. 63, p. 105 ante.

Seo. 68, SS.3 19. Sub-section 3 of section 68 of said Act is amended by striking out
axneudod

the word *' prescribed " in the second line thereof, and by adding after

the word " form " in the same line the words ** of Schedule U."

See section 42 post.

Seo. 68. 88. 6 SO. Sub-section 6 of said section 68 is amended by striking out the
*™*° * word " grant " where it occurs in the eighth and thirteenth lines, and by
substituting therefor in each case the words " certificate of title."

Sec. 68, 88.7 21. Sub- section 7 of said section 68 is amended by striking out the
*™*'* ■ words "grant or" where they occur in the first, thirteenth, twentieth
and twenty-second lines of said sub-section.

Seo. 66, 88.8 22. Sub-section 8 of said section 68 is amended by inserting after the

j^ YTl ftfl d fid.

work " surveyor " in the seventh line thereof the words *' under oath in
the form in Schedule T to this Act."

See note to section 24 post.

See. 60 S8. Section 69 of said Act is amended by adding after the word

** hereto," at the end of said section, the words ** and where the land

APPENDIX. 297

affected is in a town or city, having a town or city engineer, all plans City Sur-
presented for registration shall be approved of and signed by Bachg^Qe^r
engineer before the same can be registered," and by inserting after the ^ approve

OX pifl»u8«

word *' has " in the third line of sub-section (a) the words ** or has not,"
and by striking out the words " the foregoing," where they occur together
in the seventh line and substituting therefor the word **this."

See note to next section.

24. Section 70 of said Act is amended by adding at the end thereof Section 70

ftixifiiidfid

the words " and certified to be accurate by a provincial land surveyor
under oath in the form in schedule T to this Act.'*

This and the two preceding sections clear away the con-
fusion in the reference to the rules as to plans existing in
the Act of 1889, p. 116 ante, and render plans of the right
of way and station grounds of railway companies subject
to the same regulations, for registration purposes, as town
plots.

\» Section 74 of said Act is amended by adding thereto the following
sub-sections :

(1) Notwithstanding any defect in the proof or form of execution of Instni-
any instrument presented for registration under the new system, the gigteredf^
district registrar may, in his discretion, upon being satisfied of the due though
execution of such instrument, register the same, and such registration irregularly
shaU be valid and effectual for all purposes, notwithstanding any such P^*'^®**
defect.

(2) In all cases, unless the district registrar shall dispense with it, Transfers,
there shall be annexed to every instrument dealing with land under the ut.inaffida-'
new system an affidavit, statutory declaration or other evidence proving ^'^* *^-^o

to the satisfaction of the district registrar that the party dealing with the transfer-
land is of the full age of twenty-one years. ror.etc.

Compare amendment to sec. 77 of the R. P. Act 1889
by sec. 27 infra.

See notes In re Farmers, etc. Co, v. Conklin, and Renwick
V. Berryman, p. 126 ante.

The proof as to age does not appear to be required
except in the case of dealings under the ** New System.''

Compliance with the requirements of the amended sec-
tion 20 of cap. 60, C. S. Man., p. 128 ante, is still necessary,

298 APPENDIX.

as to dealings under the ** Old System/' notwithstanding
the liberal discretion given by this newly added sub-
section (1).

Where an irregular instrument is presented for registra-
tion under the *' new system *' it mast still be sufficient to
" pass an estate, etc.,** in order to be received, and regis-
tered as provided by section 77, B. P. Act 1889.

See remarks of Bain, J., in Shore v. Green^ as to an
informal lease ; p. 206 ante.

Note the meaning of the term ''Instrument'* as inter-
preted by sec. 8 (12), page 44 ante. Mr. Justice Bain con-
sidered that a copy of a writ of execution might be con-
sidered ** an instrument ;" Herbert v. Gibson, 6 Man. L. E.
192.

Section 76 26. Section 76 of said Act is amended by striking out the word
" instrument *' in the eleventh line thereof and sabstitating therefor the
word *• memorial.*'

27* Section 77 of said Act is amended by adding thereto the foUowing
sub-sections :

All land W Except as in this section mentioned and except instruments affect-

xni»t be JQg land without specific description, no instrument shall be registered

system, under the new system unless all the land affected by such instrument is

B^e^dls- under the operation of the new system and within the same land titles

trict. district.

Certificate (2) Certificates of judgment and attachment presented for registration
menuo be ^^^^^ ^ registered under both the new and the old system, and shall have
i«8|Btered the effect upon land under both systems given to such certificates by the
systems, administration of Justice Act and amendments thereto, or by the County
Court Act and amendments thereto, as the case may be.

These newly added provisions avoid the difficulty sug-
gested at pages 180-131 ante. Compare also the amend-
ment to sec. 74 by section 25 supra.

repeflJed. ^^» Section eighty-six of said Act is repealed, and the foUowing sec-

and Bubstl- tion substituted :
tution.

No trusts 86. Except as in sections 113, 114 and 115 of this Act mentioned, the
cluld ex- district registrar shaU not receive any instrument, nor make any entry

APPENDIX. 299

in the register, containing;; any notice of trusts whether expressed, implied cept as In
or constmctive. Describing the owner of any freehold or leasehold land, 114 and 115.
or of any mortgage, charge or encumbrance, as a trnstee, whether the
beneficiary or object of the trust is mentioned or not, shall not impose
upon the district registrar or any person dealing with such owner the
daty of making any enquiry as to the power of the owner, in respect of
the land, mortgage, encumbrance or charge or the money secured there-
by, or otherwise, but (subject to the registration of any caveat) the land,
mortgage, encumbrance or charge may be dealt with as if such descrip-
tion had not been inserted.

Compare sections 32 and 88 infra and "Introductory
Analysis/' pages 8 and 4 ante. Note also the effect of this
amendment upon section 8 (22) of the B. P. Act of 1889.

29. Section 95 of said Act is amended by adding thereto the following Section 93
sub-section : amended.

(1) Any assignment, or mortgage, of any such mortgage or encum- Assign-
brance, whether such assignment or sub-mortgage be made before or g^^h en-
after the issue of the certificate of title, may be made according to the cumbrance
forms in use under the old system, and may be registered under the new gistered.
system in the same manner and with the same effect as the original
mortgage or encumbrance was registered under this section.

See sees. 8 and 4 supra.

SO. Section 99 of said Act is amended by adding thereto the following Section 99
. ^ . amended,

sub-sections :

(1) By virtue of every such transfer the right to sue upon any mortgage Effect of
or other instrument, and to recover any debt, sum of money, annuity, or Sf^JS^n-
damage thereunder (notwithstanding the same may be deemed or held R^®-
to constitute a chose in action), and all interest at the time of such trans-
fer in any such debt, sum of money, annuity, or damages, shall be trans-
ferred so as to vest the same in law in the transferee thereof ; provided
always that nothing herein contained shall prevent the court from giving
effect to any trusts affecting the said debt, sum of money, annuity or
damages, in case the said transferee shall hold the same as trustee for
any other person.

Compare sec. 89 of the R. P. Act of 1885 and 48 Vic. cap.
17, sec. 125 et seq. as to the assignment of choses in action.

31* Section 109 of said Act is amended by inserting after the word section 109

" where ** in the first line the words " land is subject to," and by striking to apply to

out all the words from and including the word *' holder " in the second *^i*^ff®ilnd

line down to and including the word ** registration " in the fourth line encum-
bered.

800 APPENDIX.

thereof, and snbstitnting therefor the words " owner or any former owner
of the land, whether snch encnmbranoe is created before or after snch
land is brought under the new system.'*

Beotion 115 32. Section 115 of said Act is amended by adding at the end thereof

axnendod

^^ ' the following words '* but shall not refer therein to the fact that the new

to be de- registered owner is such assignee or trustee or that he holds such land for

dared. ^ny other than his own absolute use."

Compare sec. 28 supra as to entry of notice of trusts.

Section 117 2|2|« Section 117 of said Act is amended by adding after the word
amouded.

** thereof *' in the eighth line the words "except in the case of an executor,

or administrator with the will annexed, who appears to be dealing with
the land in a manner contrary to the terms of the will, in which case, and
in which case only, it shall be the duty of the district registrar to enquire
whether such dealing is proper or necessary in order to carry out the true
To include intent and meaning of the will,*' and by striking out the word " bank-
pewonu ^"P* " ^^ **^® twelfth line and by inserting after the word " property * m
the thirteenth line the words '* of a deceased person or bankrupt pro-
prietor."

Compare amendment as to entering notice of trnsts, see.
28 supra.

Lobs to as* 34, In any case where it appears that the assurance fund is clearly

fund to be liable for any loss or damage to any person under any of the provisions

out^aciion °' *^^^ ^^*' *°^ where it appears that the claim for loss or damage is a

Id certain fair and reasonable one, the Provincial Treasurer may, without an action

being first brought, pay the amount of any such claim ; provided that no

such claim shall be paid unless and until the Provincial Treasurer shall

be authorized to do so by the reports, advising such payment, of the

Attorney-General of the Province, the Inspector of land titles offices

and the district registrar of the district in which the land which is the

subject of such claim lies.

This section is an additional proviso to sec. 185 of the
R. P. Act, 1889.

Section 196 35. Section 136 is amended by striking out the words " on the case,"
amended

where they occur in the sixth line.

Schedule N 36* The left-hand column of schedule N to said Act is amended by
amen e . j^^^jj^g^ ^f^,. ^jjjg ^Q^d •• covenantee, " the following words "that he will

not assign or sub-let without leave.'*

This evident omission has already been noted in the
form sec. 91 R. P. Act 1889, p. 141 ante.

APPENDIX. 801

S!7% Schedule B of said Act is amended —

(a) By adding, after the word '* defendant" in the fourth line of the Judge may
aixth rale, the words '* but upon proper cause shewn, a Judge or Judge in ateeto^be^'
Chambers may direct that the issue be tried with the caveatee, as plain- plaintiff,
tiff, and the caveator, as defendant,"

(b) And by adding thereto, as additional rules, the following : —

15. On the final decision of any matter, under these rules, all the pro- Prothono-
ceedings, exhibits and instruments filed, and all orders made, touching or transmit
affecting any question of title to the lands or interest therein, shall forth- papers,
with be transmitted by the prothonotary to the proper district registrar

under seal, and shall be filed and kept in the land titles office as part of
the records thereof.

16. When a district registrar is ordered to issue a certificate of title, Judge

the order shall declare that the title in the lands of the person to whom {gg^ ^

the certificate of title is to issue has been found, upon investigation, to be ^f'!^^^'^^^

a good safe-holding title. must cer-

tify title.

These rules appeared in the B. P. Act of 1835 as amended
by sec. 14, cap. 22 of 51 Vic, but were omitted in the
B P. Act of 1889. See note to the following section.

In Grant v. Hunter^ 1 Western Law Times 36, Killam J.
stated that the Chief Justice did not intend to lay down as
an absolute rule in McCarthy v. Badgley, (page 194 ante)
that every applicant must be taken to occupy the position
of a plaintiff towards the caveator in respect of issues
ander petitions for the enforcement of the caveat ; and
held that the relative position of the parties must depend
upon the circumstances of each case, and the nature of the
issue directed.

Schedule B is farther amended by adding thereto the following Hule 15
,,... I , added to

additional rule : BchedaleB.

15. No failure to comply with any of the rules in this Act made as to Order to
any petition shaU in the first instance be considered sufficient to dismiss to'bem^e
or set aside such petition, but a motion may at any time be made to ^ ^^
dismiss such petition for want of prosecution or non-compliance with
said rules, and upon the return the judge or judge in chambers may make
an order that such matter be proceeded with or such non-compliance
amended or remedied, within a time to be specified in the order, and that
in default thereof each caveat or petition or any proceeding thereunder

802 APPENDIX.

do stand dismiBsed, and such judge may, upon such return, make such
.order as to oosts as he may see fit.

This rule has been given the same number as the first
rule in the foregoing section ; cross-references should be
made to avoid confusion.

Rule 15 of S9« Bule 15 of schedule S to said Act is amended by inserting after
Sohedole S ^ o

amended, the word "proprietor** in the sixth line thereof , the words *' and at or

near which he may be served with any notice or proceeding under this
Act, and if such applicant or owner is not a resident of this Province, he
P. O. ad- shall also deliver to the district registrar the name and post office address
name of ^^ some agent within this Province, upon whom any such notice or pro-
agent to be ceeding may be served in lieu of service upon himself personally, and if
such applicant or owner do not so deliver his post office address or nanae
and address of an agent, and if such applicant or owner cannot be found
at or near such place in order to effect such service, then upon applica-
tion the District Registrar may make an order that he may be served by
posting up a copy of such notice or proceeding in the land titles office for
the district in which the land in question is situate."

Compare sections 63, 64 and 66, pages 96 and 97 ante.
Such notices as are required by the B. P. Act 1889, sec-
tions 44, 48, 49, 52. 67, 89, 103, 106, 120, 121, 130, 187, 148
and 148 may now be effected as provided by this amended
rule. See also section 11 supra.

Sohedole S, • 40. Kule 19 of schedule fl to said Act is amended by adding at the end
thereof the words *' u
has not been so sold.'

amended, thereof the words *' unless the district registrar is satisfied that the land

41. Said schedule S is further amended by adding thereto the foUow-
ing rule :

Affidavits 30. Affidavits or statutory declarations in proof of any matter under this
?woni be- Act shall not be sworn or declared before the attorney, solicitor or agent

lore part- Qf ^ny applicant for registration, or before the partner, clerk or agent of
ner, eco.

such attorney, solicitor, agent or applicant.

42. The following additional schedule is added to said Act :

APPENDIX. 808

SCHEDULE U.

{See, 68, Sub-sec. 8.)

Thb Rbal Pbopbbty Act of 1889.

Province of Manitoba. \ In the matter of application file Form of

sabpcena

No. and

{Here deieribe the lands.)

The Land titles District of

To Wit :

Yon are hereby commanded, and each of yon, that, all other business
and excuses whatsoever ceasing, you do appear personally before the
district registrar for the Land Titles District of ,

in Manitoba, in the Land Titles Office at , in the

Province of Manitoba, on the day of

next, A.D. 18 , at o'clock in the noon, and so from

day today until the matter herein mentioned be disposed of, and also that
you bring with you and produce at the time and place aforesaid (here
describe the instrument, etc., to be produced), then and there to testify
and show all and singular those things which you, or either of you, know,
or the said deed , instrument , record , document or writing doth
import, of and concerning this matter, on behalf of the applicant ; and
this you or either of you, shall by no means omit, under a penalty of
Five Hundred Dollars, and all other penalties provided by the said Act.

Witness the hand and official seal of the district registrar for the Land
Titles District of at this

day of A.D. 18 , in the

year of our Beign.

[SKAL.]

District Registrar,

See sec. 19 supra.

421. Notwithstanding anything in the said chapter 16 and amendments Lodging
contained, a petition under a caveat may be lodged at any time before
the issue of a certificate of title.

Compare sec. 180, (2), (5), (7), (11), pages 182-190 ante.

44. Any person who, prior to the coming into force of this Act, was Actions «.
entitled to bring an action against the Registrar General, may bring such 2^^ ^'
action against the District Registrar within whose jurisdiction the matter
complained of took place, and any notice which should have been given
to the Registrar General may be given to such District Registrar.

80-1 APPENDIX.

The next section provides that the action shall be
brought against the District-Begistrar by bis name of office.
It should appear that the cause of complaint arose under
the repealed Acts.

See sec. 185, p. 199 ante.

AotioDB «L 45. AU actions against a District Registrar shaU be brought against
^- ^' him by his name of office, and shall not abate or be in any way affected

by any vacancy occurring in the said office or by any change of officer.

Compare sections 60 and 51, page 94 ante.

This section and the preceding one should find their
places properly as sub-sections of section 185 of the B. P.
Act 1889, p. 199 ante.

Section IS 46. Section 13 of said chapter 16 is hereby amended by striking oat
amended. ^|| ^^ words therein after the word ''same" in the sixth line thereof.

D. R. not 47. No District Registrar shall be compellable to attend ont of his office

B?bpGemi ^ ^ witness for examination mider any subpoena, order or summons

as witness, issued from any coart of this Province, whether such subpoena, order or

summons be directed to him personally or in his official capacity, bat

any such District Registrar may be examined under a commission or

otherwise in his office.

Compare sections 125 and 147, B. P. Act 1889» pp. 180
and 207 ante.

This section can only apply to cases affecting property
and civil rights and matters properly within the Provincial
jurisdiction: {B. N. A. Act 1867, sees. 91 and 92).

Act in 48. This Act shall come into force on being assented to.

Observe the retroactive effect of sections 1-5 inclasive,
and sections 8, 9, 10, 11, 18, 30, 88 and 48 supra.

INDEX.

(T) rtfen to the Territorial Act.

Abatement of proceedings. Judge's order, (T.), 288.
AbstiactB of title not required, 84.
Absence from Province, caveat, 112.
of witness, 127.
of mortgagee, payment in, 162.
Acts consolidated and repealed, 41.
Actions against officers barred, 62
Acknowledgments in deeds, 98.
Actions of ejectment, 108.

against D. B. in nam. off., 199, 201.
on implied covenants, 204.
against Assurance Fund, 197-208.
Administration of ** New System," 6, S6.

Letters of, 65, 168.

not proof of death, 169.
suits validated, 76.

of Justice Act applies as to services, 97.
of oaths, 98.
Administrator to register, 73, 76. 149, 164, 156, 167, 169.

not seized of Equity, 71.
included in description of parties, 46.
liable for trusts, 170, 171.
costs against, 127.
powers under lease, 140.
power of sale, 154, 167.
Addresses of ** registered owners," 66, (T.), 236.
Advice to applicants, 83.
Additions of parties to be shewn, 64, 67.
Adverse prior title, 107, 109, 182.

occupant protected, 107, 109, 119, 182.
claims (T.), 235.

lfAN.L.A. 20

806 INDEX.

AdTeziumg lost certificates, 113, 114.
re joint tenants, 134.
re foreclosure, 161.
Adultery forfeits inheritance (T.), 218.
Affidavits on application, 63,'64. 81, (T.), 233.
directions, 87.
withdrawal, 91.
nsed as proofs, 98.
of circnmstances, 102.
proving execution, 120-127.
on caveats, 187-189.

not invalid for informality, 204, (T.), 288.
not to be sworn before attorney, etc., 302.
by surety (T.), 223, 224.
Agency, proof required in Victoria, 79, 189.
Agent may notify mortgagor, 154.
Agents of corporations, service on, 97.
Alberta district defined (T.), 219.
Amendment of certificates, 177-179.
Ancient documents as evidence, 97.
Annuity, discharge of, 153.
Annuitant, death, cessation of charge, (T.), 257.
Application for foreclosure, 160.

for registration (T.), 231. 232.

advertised (T.). 235.
as to undivided interests, 295.

Applications under *' new system,*' 8, 78, 79, 83.

to be written and verified. 63.

on tax sale titles, 99.

with " directions," 64, 87.

by infants, lunatics, etc., 85, 207.

particulars in, 64.

omission of encumbrance not fatal, 173

signatures to, 64.

lands limited, 65.

may be withdrawn, 90, 91.
rejected, 91, 92.

in '* unorganized districts," 77.

effect of filing, 85.

to remove memorials, 102.
Applicant in position of plaintiff, 194, 301.
Apprehension for disobeying summons, 177.
Appeals from Judge or Court, 180, 181.
against requisitions, 87.

INDEX. 807

Appeals from decisions of D. B., 178.

in nature of mandamu$y 144. '

costs of, 195.
Oonrt (T.), 216.

against acts, etc., of Registrar, (T.), 276.
Courts oonstitated, (T.), 288.
Appendix (Man. Stat, of 1890), 291.
Assurance fond, 84, 38, 117, 169, 197, 204.

commission, 208.
actions against, 197-203.
when not liable, 202.
damages for loss of rights, 278, 274.
formation of, 274.

suits against nominal defendant, 274, 275.
limitation of actions against, 275.
recovery of amounts paid out, 275.
not liable in cases of trusts, 276.
commission payable to, 285.
payments before action in certain cases, 300.
actions against nominal defendant, 804.
Assessments, a charge to be implied, 105.
Assiniboia, laws of, 73, 74.

district defined, (T.) 219.
Assigns, included in description of party, 46.
Assignee, power of sale, 154, 157.
liable for trusts, 171.
to be registered, 149, 154, 170.
removal of, 171.
Assignments by insolvent lessee, 144.

of encumbrances, leases, etc., 149 €t uq,<, 171.
of mortgages prior to registration of title. 143.
for benefit of creditors, 170.

(See TBANSTBBS.)

Attorney-General may be heard, 30, 180.

General of Canada, notice of suits against assurance fxmd, (T.),

275.
notice of suits, 197, 200.

departmental head, 210.

Attorney (see Power of).!

"At Least,*' meaning of, (Rule 23), 68.

Attestation of instruments. 120 et teq,, 150, (T.) 229.

of surety bond, (T.) 225.

Auction sale, necessity of, 157.

Auctioneer's certificate re tax sales, 100.

affidavit on mortgage sale proceedings, 160.

806 INDXX.

Bankrupt lessee assignmente, 142.

estates transmission, 170, 171.
Bankruptcy (see Insolvency).
Bankers, advice to, 110, 113, 145.
Barring actions of ejectment, 109.

Beautiful Plains, in district of Portage la Prairie, 47, 54.
Belcourt added to Portage la Prairie, 48.
Beneficiaries protected, 4, 134, 136, 172, 206.

special caveat, 185.
Bills for foreclosure, 147.
Binding of letters patent. (T.) 230.
Bond of security form, (T.) 223, 225.
Books to be kept by D. B., 50, 55, 65, 66.

of account, 62.
Brandon land titles district, 47. 54.
Breach of covenants by lessee, 140.
Bringing lands under Act, 8, 76, 130.
Britain and Ireland, affidavits, 123.
British colonies, '* 123.

Buildings for land titles offices, 54.
By-laws, municipal, may be registered, 126,

Canadian Pacific Railway lands, 77, (T.), 230.
Cancellation of certificates.

for fraud, error, etc., 177-179, (T.), 277-278.

production enforced, 278.
on consolidation, 279.
dealings with lands, 67, 245, 246.
transfers, 68.
tax sale deed, 99.
Caveats generally, 31.

book to be kept, 65.

filed by Dep. Beg., 112, 184.

claimants, 94, 95.
may be searched, 106.

entered by order of Court, 176, 185, 191, 192.
details of procedure may be settled by Judge, 181.
provisions and rules of practice, 182 et teq.

WDBX. 809

Caveats, lapse of, 182, 186, 190, 191.
by devisees, etc., 185.
forms, 183. 184.
effect of filing, 186.
notice of filing. 184, 186.
particulars stated in, 186.
affidavits in support, 187-189.
withdrawal, 169.

notice of, 190.
damages when wrongfully lodged, 190.
when second allowed, 191.
extension of time for filing. 192, S03.
discharge of, 190.

rules of procedure, 192-196, 301, 303.
in the Territories, 268-271.
implied charge, 296.
form of issue directed, 301.
re-transmission of papers, 301.
Judge to certify title in orders, 301.
dismissing petitions, 301.
Caveator to file petition, 193, 303.
Caveatee to shew cause, 193.
Certificate of Title, effect considered, 12-15.

consolidation, 68.

cancellation, 67, 68, 69.

not issued in office hours, 69*

particulars shewn in, 83, 84.

issue of, 86, 94, 103.

to be produced for cancellation, 99, 119, 131. '

duplicates bound, 103.

form, 103.

time of registration , 101.

date of, 104.

case of loss or destruction, 112, 114, 115, (T.). 279.

correction of errors, 112.

deposit as collateral, 110, 113, 145.

tenants in common, 104.

conclusive proof, 106, 108, 207.

prior claimants, occupants, etc., 107, 109.

not invalid for informality, 204, (T.), 288.

in register (T.), 235, 236.

absolute, (T.), 242, 243.
Certificates as to taxes (Rule 19), 67. and (T.), 231.

pre-emptions, 78.

810 INDBX.

Certiiioatea m to tax sales, 100.

of judgment lapsing, 69.

withdrawal or rejection to be registered, 90. 91.

effect of, 90-92.
discharge, 160, 151.
charges, 163,
on plans, 116.
Certified copies to make proof, 207, (T.), 225.
CeMtui que trtut protected, 4, 134, 136.

Charges on land under New System, 23-27. (See Covenants implied),
certificates of, 163.

errors in, 197.
memorials endorsed, 66, 146.
cessation of, 158.
transfer of, 147, 149.
extingoished on foreclosure, 162.

Chattels real, 70.

" Chambers," referred cases in, 175.

Children, illegitimate inheritance, (T.), 218.

Civil rights in Manitoba determined by the law of England, 74.

Civil Service Act of Manitoba, 210.

Claimants, adverse notice to, 94, 95.

Clouds on titles removed, 11, 37-

Clerical errors in affidavits, 122.

Clear titles registered forthwith, (T.), 233.

Conditions mortgage sales, 158.

Colonies, British affidavits in, 128.

Commissioners in B. R. receiving affidavits, 123, 124.

Commission to Assurance Fund, 285.

to Assurance Fund, (T.), 203.
Committee in lunacy, 207.
Conunencement of B. P. Act, 1889, 41, 56. (Appendix, 304.)

Act in Territories, 213.
Companies (see corporations).
Computation of time, 68.
Compensation for deprivation of land, 73.
Conveyances (see Transfers).

Statute of Uses, 70.

effect without words of limitation, 71, 72.

between husband and wife, 75 (T.), 217.

by administrator, repealed acts, 75.
heirs validated, 75, 76.

operate as estoppel, 71, 131.

by »* direction," 88.

INDEX. 811

Ck>nveyanoe8, Btatntory forms, 205.
Conveyanoers, English rules relaxed, 98.
Oonoealment of doomnent, penalty, 208.
Consolidation in applications, 65.

of certificates of title, 68, (T.), 270.
Consent to withdrawal, 90, 91, 93.

assignment of leases, 142, 144.
discretion of attorney, 174
Contracts may be enforced in equity, 136.

•confer rights of registration, 132, 138, 13(>.
not affected by trusts, 135.
Consols British, may receive affidavits, 123.
Copies of notarial instruments from Quebec, 124.
registered instruments, 125, 126.

certified to make proof 207, (T.), 225.

Corporations, " successors" implied, 46.

foreign, holding land in Manitoba, 82.
applications by, 83.

seal on instruments for registration, 120, 125.
services upon, 97.
expropriation powers, a lien, 105.
plans of right of way, etc., 117.
Correction of errors in certificates, etc., 177-179.
Costs on appeals from decision of D. R., 173.

in matters of caveat, 185, 189, 190, 191. 192, 195.
in Actions v. D. U., 201 .
of registrar, nominal defendant, 275.
security for. 190, 206.
Counsel, arguments on appeals, 175.
Court of Q. B. jurisdiction. 28-30, 181.

restraining orders, 180.
interpretation of term, 44, (T.), 215.
county judgment liens, 105.
Covenants implied, 21, 24, 128.

as to encumbered estates, 131, 132, 141.
further assurances. (T.) 237.
none in a direction, 88,
in leases, 138, 139, 140, 149.
operating estoppel, 138.
may be modified, 132, 189, 141, 149, 204.
requiring seals, 144, 167, 240, 242.
in assigned leases, 171.
implied in mortgages, 144, 145.
in mortgages, short form, 140.

812 INDEX.

Covenants, general form mortgage, 145.
actions on, 171, 204.
for farther assoranoes, (T.), 237.
implied, may be modified. 204, (T.), 281.

construed as several, 204, (T.), 281.
against transferee, 246.
implied in lease, 248.
short form in lease or mortgage, 249, 251.
Criminal offences. 209, (T.), 289.
Creditors' rights against registered interests. 83, 78.
Crown patent, interpretation of term, 45.

implied reservations, 105, 185.
rights, decrees and injunctions. 185.

not prejadiced, 106, 112.
grants, (see grants) 242.
grant must precede registration, 77.

proof for registration purposes, 98, 120, 121, 129.
grants, certificates free, (T.), 280.

construed as instruments, (T.), 214, 231.
Curtesy abolished. 74, (T.), 217.
Cypress north in Brandon district, 47.
south ** Winnipeg district, 48.

Damages against assurance fund, 197, (T.), 273.

for wrongfully lodging caveat, 190.
Date of certificate of title, 104.

registrations, 120.
" Day-book" to be kept, 65.

entries to settle priority. 65.
form and use, (T.), 228.
Death, transmissions by, 11, 20, 167 et 8eq., (T.), 262, 263.
probate, etc., not prima facie evidence of, 169.
of owner, actions against D. B., 199.
proceedings continued after, 93-94, (T.), 288.
title of personal representative relates back to, 168.
or absence of attesting witness, 125-127.
of annuitant releases rent charge, 153.
Declaration as to tax sale proceedings, 100.
execution proved by, 124.
of trusts, 135.

INDBX. 8 IS

Declaration, statutory may make endenoei 98.

not to be received by officials. 99.
Decrees, implied charge, 343.

etc., implied as liens, 108.
may be registered, 129.
for specific performance, 108.
Deeds and transfers distinguished, 241.

are instramente xmder Act 205 (T.), 240.
on tax sales, special provisions, 99. 101, 118.
recitals, etc., received as evidence, 98.
registered need not be produced, (T), 232.
under process from Court, 121.
which may be registered, 129, 130.
Deputy Registrars, powers in Territories, 221.
Descent of lands, law amended, 70, 76, 168.

in Territories, 216.
Devises, affecting land may be registered, 129.
Devisee, takes from personal representative, 72, (T.), 217.

to produce probate or letters of administration, 65.
Devolution of Estates, 70-76.
Default by lessee, ground for ejectment, 109.
proof of, 158.

rights of mortgagee, etc., 153, 154, 156, 159.
Deferred, rank given to charge or mortgage, 147, 149.
Definition of terms — (See Interpretation), 42.
Deprivation of land, compensation for, (T.), 273.
Destroyed or lost certificates, 112-114.
Description — (See Mis-descriptions, Maps, Plans),
in leases, 139.
of land, 183.
Disability, effect on limitations, 201.

on the part of owner to be stated, 103.
Districts, land titles, 47.

in Territories, 219, 220.
District Registrars, appointment and qualification, 48.

commencement of duties, 59.
deputy under new system, 48.

qualifications, 49.
old system, 55.
not compelled to attend as witness, 304.
indemnity for bona fide acts, 62.
seal of office, 49.
to give security. 49.
supplied with books, 49.

814 INDEX.

District BegiBtrars to act under old system, 56.

not to act as conveyancers, etc., 56.
to sign memorials, 00.
to note registrations, 67.
to furnish copies, etc., 67.
may release judgments or liens, 69.
may renew illegible certificates, 09.
may refuse applications, 78.
Direction by applicant, 10, 87-89.

in application to be attested, 64.
not notice after withdrawal, etc., 92.
Discharges, entry of, 129. 160. 152.

forms, 121, 148, 150 et $eq.
of mortgages, (T.), 233. •

or incumbrances, (T.), 256-258.
Discretion of Inspector as to informal instruments, 120, 128, 129.

Registrar in case of trustees, etc., 103.
Dismissals of bills affecting land may be registered, 129.
Dispensation, production of certificate, 100, 112, 114, 128.
Doeuments — (See Instruments).

order for production, 110, 180.
registration of, 129.
to be returned, 92.
Doubts removed as to land laws, 75.
Dower, abolished, 73, (T.), 217.

introduction of English law, 74.
Duces Tecuviy form of subpoona, 111, 308.
Dufferin County in Morden Dist., 48, 54.
Duplicate of instruments allowed (except transfers), 120, 121.

in Territories, 228, 229.
of certificates, 103, 114.
plans, 66, 116, 117.

Easement, creation and registration of, 23, 42, 43, 83, 105, 131.

endorsement of, 173.

included in term "land,** (T.),213.

implied lien, (T.), 243.

registration of, (T.), 245.
Effect, of instruments depends on registration, 120, 149, 150. 238, 293.

INDEX. 815

Ejectment, action against registered owner, 108, 198.

bona fide purchaser protected, 198.

registered owner protected against, 272, 273.

Encumbered certificates impounded, 168.

estates, assignment of, 142, 144.

"Encumbrance," "Encumbrancer," " Encumbrancee," defined, 44.

in Territories, 214.
Encnmbranoee and mortgages, 143 et aeq.

effect of lease as, 138, 143.

foreclosure of, 27.

form, 146.

may be transferred, 147.

forms of transfer, 147, 148, 149.

impiled covenants, 24.

omission of, 173.

operates as hypothec, 147.

Encumbrancee, cannot foreclose, 162.

selling under power liable as trustee, 158.

Endorsement on certificates, (Rules 13, 14, 16), 66, 67.

qucere, if an instrument, 149.

transfers by, 118.

Entry, by lessor, memorial, 140.

covenants implied in leases, 189, 140.

of discharge, 150.

Equitable claims enforced, 109.

estate affected by mortgagees' application, 82.

jurisdiction of Court saved, 181, (T.), 284.

mortgages, 110, 113, 145, 179, 184.

principles observed, 69, 133.

Equity of redemption, application by owner, 79.

Error, in affidavit not to invalidate registration, 122.

may be corrected, etc., 177.

rehef in cases of, 178.

remedy for deprivation of lands, 85.

Escheats, injunction to protect rights of Crown, 185.

Estates, mortgaged, etc., to be accurately stated, 144.

of Selkirk settlers not of inheritance, 74.

tail, abolished, (T.), 217.

clauses omitted, 75.

when passed, created, etc., 120. 149. 150, 159, 167, 169, (T.). 238.

293.
Estoppel by certificate of title, 14, 109.

deed, 71, 138.

notice, 94 et ieq.

service on guardian, etc., 207.

816 INDEX.

Evidence by copies, 67, 68, 126, 187, (T.), 225, 230.

furnished by applicant, 45, 63, 64, 65, (T.), 231.

of caveator's title, 107 et teq.

probate or administration, 65.

title condnsive apon registration, 106, 207.

for specific performance, 108.

to be returned, 92.

what receivable, 98. 99.

Examiners of titles, appointment, 48.

bound by lU pendeni, 163.

Examination of titles. 86.

in Territories, 234.

Execution registered implied charge, 243.

Executions in Manitoba, 105, 147.

Territories, 37.

of instruments, proof, 120 et seq.

seals, 120. 125.

separately proved, 122.

witness dead or absent, proof of before Judge,

127.
Executors, covenants with, 141.

executing transfer of charges, 147.

included in description of person, 46, 141.

take subject to charges, trusts, etc., 169, 171.

to be registered as owners, 140, 154, 155, 167-172.

to produce probate, etc., 65, 79, 168.
Exemplifications to be furnished by D. R., 67.
Expropriation, implied qualification, (T.), 248.

rights of corporation, implied lien, 105.
Extension of time to proceed on caveat, 192, 303.

Fairford Co., District of Portage la Prairie, 48.
Fees, accounts to Provincial Treasurer, 62.
consolidated table, 60.
on proceedings in Court, 181.
payable in advance, 57.

in Territories, 231.
penalty for retaining, 62.
receiving and accounting for, (T.), 287-288.
tariff, new system, 57.
old system, 60.
in Territories, 285-287.

INDEX. 817

Fiat of Attorney-General, Salts v. D. B., 197.
Fi,fat,, implied charge, (T.), 248, 292, App., 298. 296.
in Territories, 87.
must be registered, 268.
satisfaotion of, 264.
Fines and penalties, 208.
Foreclosore, application for order, 59, 160.
decree may be registered, 129.
efiect of, 161, 162.
Ut pendent to be filed, 168.
of mortgages, etc., 27, 147, 159, 161.
notice served sabstitntionally, 160.
proceedings by mortgagee, (T.), 255, 256.
under former Acte validated, 75.
informal instmments, 128.
Foreign corporations, service of notice, 97.

country affidavits in, 123.
Forfeiture for adultery, (T.), 218.
Forms, affidavit of witness, 64, 81, 121.

justifying caveat, 187-189.
additional by Governor-in-Council, (T.), 284.
affidavit by surety, (T.), 224.

on bond, (T.), 225.
application for first registration, 79.

foreclosure, 160.
registration. (T.), 232.
appointment of guardian, 208.
auctioneer's certificate, tax sale, 100.
bond, (T.), 228.
caveat, " O," 183. " P/» 184.

certificate of title, 103.104, charges, 163, ownership, (T.), 287.
discharge, entry of, 150.

of mortgage, 151.
estoppel notice to adverse claimant, 95.
foreclosure order, 161.
incumbrance, 146.
in Territories, 37.

Manitoba, may be varied, 46, 63.
issue on caveat, 194-195.
lease, 138.
mortgage, 145.

notice of exercising powers, 155.
lost certificate, 113.
provisional certificate, 114.

318 INDEX.

Forms, notioe to oaveatee, 164.

oath of office, (T.), 823.

of insinuneiitB for registration, (T.), 22

old system, use of, 120.

power of attorney, 164, 165.

revocation, 167.

receipt on mortgage, 234.

referred case, 175, (T.). 277.

short covenants, 141.

snbstitQtional service order, 97.

summons to witness, 111-308.

surveyor's certificate, 116.

to be in accordance with Act, (T.), 244.
snbstontially as in Act. 206, 206.

transfer of land, 118, 119.

lease or charge, 147.
by endorsement, 148.
partial, 149.

withdrawal, consent thereto, etc., 90, 91.
Fraud, by reiastered owner, etc., 135.

cancellation of certificate, 177-178.

ejectment in cases of, 272.

ground for action against assurance fund, 197, 198, 200.

jurisdiction of Court saved, (T.), 284.

remedies against, 35.

suggestions by Queensland Commission, 136.

vitiates title, (T.), 242, 248.
Fraudulent transferee subject to ejectment, 109.
Functionaries, service of process on, 97.

who may receive declarations, 99.

General agent served for company, 97.

Begister and caveat book (Rule 8), 65.
Grant, certificate as to. 78.

from Crown, exceptions, reservations, etc., 105, 135, (T.), 242, 284.
may be registered, 121.
to be bound, (T.), 230.
to precede registration, 77.
of estate not required by mortgage, 147.
in Territories replaced by certificate of title, 37.
interpretation of term, 45, 215.

INDEX. 819

GrasHhopper mortgafi^, 106.
Great Britain, affidavits in, 123.
Guardian, order appointing, 207-208.

or committee, to persons under disability, (T.), 281^ 282.

proceedings by and against, 207.
Guarantee Company bonds, (T.), 223.

Half-breed allotments, taxation. 99.

Hearing on caveats, 193.

Heirs, conveyances validated, 75.

included in description of person, 46.
Highways, implied exception, 105, (T.), 243.
Holidays, Manitoba, 62.

N. W. T., 226.
Homestead and pre-emptions, certificates as to, 78.
Hours, Manitoba offices, 62.
Husband, adultery by, 218.

and wife, conveyances between. 19, 75, (T.), 217.

estate by courtesy abolished, (Man.), 74, (T.), 217.
Hudson's Bay Company, lands. (Man.), 77, (T.), 231.

land register and plan of survey, 50.

Idiots, guardians, 207.
Idiot — (See Lunatic).
Illegible certificates renewed, 69.
Implied, actions upon, 204.

construed jointly, 132, 204.
covenants in informal instruments, 128.
leases, 21, 109, 138, 139.
mortgages, 109. 132, 149, 153, 156, 159.
transfers, 118, 131, 149.
transfer of encumbered estates, 131, 144.
further assurances, (T.), 237.
may be modified, 132, 204, (T.), 280.
qualifications affecting registered lands, 13, 104, 242,

243.
words of limitation, 46.
Imprisonment — (See Penalties).

820 INDBX.

Indemnity of offioera. (Man.), 62, (T.), 226.
Indorsed— (See Endorsement).

meaning of, (Man.), 46, (T.), 216.
Ineombrancee — (See Mortgagee), 262.
India, affidavits in, 128.
Infants, applications by, 85.
guardians, 207.

to act for, (T.), 281, 282.
Umitation of actions, 201, (T.). 276.
Irformations — (See Prosecntions), 209.
Inheritance, estates under laws of Assiniboia, 74.

laws of, (T.), 216-218.
Injunctions, to protect rights of Grown, frequently granted in Australia,

185.
restraining breach of implied covenants, (T.), 261.
Inspector, appointment of. 7, 48.

powers, re informal instruments, 120, 128, 180, 162.
in Territories, 221.
Instruments, attestotion of, (T.), 271-272.

conferring rights as between the parties thereto, 132.
copies of, prtma facie proof, 126.

registered, 125.
declaring trusts, 136.
form of, (T.), 226.
includes copy of writ, 298.
irregular registrations validated, 297.
not invalid for informality, (T.), 288.
meaning of, (Man.). 44, (T.), 214.
priority between, (T.), 228, 288.

of registration, 66, 109, 120, 131.
registration and effect when informal, 128.
registered in order of time, 133.
required form and registration, (T.), 244, 298.
to comply substantially with forms, 128.
verification of parties* age, 297.
which may be registered, 128, 129.
when deemed registered, 101.
Insolvency, change of ownership, 149.

transmissions by, 20.
Insurance— (See Assurance).
Interpretation, act of Manitoba applies, 47, 68.

clauses, (T.), 213. 215.
of terms. (Man).

" At Least," (Rule 23), 63.

INDEX. 821

Interpretation of " Court," 44.

" Crown patent," etc., 45.

** Encumbrance," ** Encumbrancer," "Encnmbrancee,"

44.
" Grant," 45.
•• Indorsed," 46.
*' Instrument," 44, 120.
" Judge." 45.
" Land." 42.
"Lunatic," 44.
•* Memorial," 44.

" Mortgage." " Morti?agee," " Mortgagor," 43, 44.
" New System," 46.
" Old System," 46.
"Owner," 43.
•• Patent," 45.

" Person of unsound mind," 44.
" Possession," 46.
" Standard time," 63.
" Transfer," 43.
*' Transmission," 45.
" Valuator," 44.

Intestacy, laws of Manitoba, 74. 167173.

Intestate estates, order changing registered owner, 134.

Investigation of title. 86, (T.), 234.

ordered by Court, 173, 174.

Ireland, afifidavits in, 123.
Issue on caveat. Form of, 194.

Joint Ownership, Court orders, 134, 168.

** no survivorship," 133.

Judge, interpretation of term, (Man.), 45, (T.), 215.
jurisdiction of, 28. 173-181.
may order caveat, 185, 187, 190, 191.

Judgment, certificate lapsing, 69.

registration of, 86.

registered becomes lien, 105.

implied charge, (T.), 243.

under both systems, 298.
MAN.L.A. 21

822 INDEX.

Jariadiction, affidavit oat of, 123, 127.

Court of Q. B., 28. 173481. 192, 193.
dependent on statute, 187.
of Court, re caveats, 193-196.

Keewatin, affidavits in. 124.

Land, assurance fund. 34, 38.

meaning of term. (Man.), 42. (T.). 213.
Provincial and swamp, patent required, 78.
register of H. B. Co., 50.
titles, offices and districts, (Man.). 47. (T.), 221.
ungranted not registered, 77.
Lapse of caveats. 182. 185, 186, 190.
Leases, 21.

assignment. 142. 171.

determined by re-entry. 104.

effect as encumbrance. 138.

encumbered lands. 138, 144.

forms of transfer. 147-149.

implied covenants. 138-141, 171.

in H. B. Co., register, 50-53.

** Lease,** " Lessee,** includes sub-lease and sub-lessee, 292.

less than three years, implied qualification, (T.), 243.

may be transferred. 138. 147.

of encumbered lands, (T.). 247-252.

over one year. Form of. 137, 138.

three years a lien on land. 105.

three years, (T.). 247.

short form covenants. (T.), 249.

statutory short form. 138. 143, 206.

surrender of. 141. (T.). 251.
Lessee, covenants to purchase, 138.

implied covenants by. (T.). 248.

in insolvency. 142.

right to purchase. 247.
Lessor, implied powers reserved, 109, 139, 140, 171.

powers reserved in lease, (T.), 249.
Letters patent, binding of, (T.), 230.

INDEX. 823

Liens, holders, notice of tax sale deeds. 100.
implied as to registered lands, 104*106.
improperly lodged, 197.

on land on abolition of old registry offices, 55.
may be enforced in Equity, 109.
removed by D. B., 69.
Licenses to foreign corporations, 82.

Limitation of actions against assurance fund, 198, 201, (T.), 275.

on implied covenants, 205.

see '' infants," ** idiots." *' lunatics," 201.
estates, (T.), 218.
words apply as if to personalty, 71.
implied, 46.
of, (T.), 216.
unnecessary, 71.
Lis pendens^ can be lodged after caveat, 192, 196.
effect of filing, 30. 83, 163, 172, 196.
Loss of rights, remedies, 34.

Lost certificates, provisions respecting, 112, 114, 169.
Lunatics, applications, guardians, etc., 85, 103, 207.
caveats in behalf of, 112, 192.
guardian or committee acting for, (T.), 281, 282.
meaning of term, (Man.), 44, (T.), 214.

Mailing notices, proof of, 158.

•< Manitoba Act," titles exempt from patent rale, 77.

tax sales, 99.
Mandamus^ appeals in the nature of, 174, 177.
Manner of registration, 67.
Maps and plans, (Man.), 66, (T.), 227.
Marquette County divided, etc., 48, 64.
M&rriage of female owner to be noted, 267.
Married women, law respecting, 73-75.

woman, next friend, 282.
Meaning and effect of words, 42, 46, (T.), 213.215.
Mechanics liens, registration, 105.

removal of, 69.
*' Memorial," meaning of term, 44.
Memorials, entry of particulars, 66.
in Territories, 229, 235.
Merger of charges, liens, etc., 162.

^24 INDEX.

^* Mines.*^ mdaded in term "■ land/' (T). 213.

Mining rights, reserration in Crown grant, (T.), 243, 284.

Minor's age mentioned in certificate of title, 103.

Minnedoea Connty, Disuict of Portage la Prairie, 48, 54.

MisileseripUon and doable registrations, ejectments, (T.), 272, 273.

of bonndaries, 35. )07, 109, 178, (T.), 242, 243.
Misfeasanoe by officers. 198.

Misrepresentation, Action r. Assurance Fnnd, 197, 198.
Mistake of fact or law->(See Error), 177, 197.
Morden land titles office and district. 48.

** Mortgage,*' " Mortgagor," •« Mortgagee," (Man.), 43, 44, (T.), 214.
Mortgages and charges. 23, 143.

encambrances, (T.), 252.
assignments of, 143, 144, 147 et seq,, etc., may be registered, 299.
certificate of charges, 163.

discharge of, 37. 144. 150-152, (T.), 233. 256, 257, 258.
do not conrey estate, 147, <T.), 254.
eqniUble recognised. 26, 110, 113, 145, 172. 179, 184.
filed pending investigation, 84, 143.
for seed grain advances, 106.
foreelosare of. 27, 128. 147. 159-163.

proceedings, (T.), 255, 256.
form of, 67, 143-145.

of mortgages not provided for, 25, 143, 144, (App.), 291.
implied covenante, 24, 109, 132, 142, 149.
or encumbrance prior to grant may be filed, (T.), 282.
payment into chartered bank, (T.). 257.

to Provincial Treasurer, 25, 38, 152.
power of sale. (T.), 255.
rights of assignee, (T.), 299.
short form covenants. (T.). 249.
tax certificate filed with, 67.
transfer, (T.), 258.
transmission of, 149, 170.
when seals required, 144.
Mortgaged lands, leases of, 138, 142, 144.

transfer of, 131, 144.
Mortgagee, implied powers, 109, 153, 156, 158, 159.
in good faith protected, 198, 204.
liable as a trustee, 158.
may bring estate mortgaged under Act, 82.
notice, forms, etc., 155. 16G.
powers, notice, etc., (T.), 254.
to produce documents, 110.

INDEX. 825

Mortgagors in possession, implied covenants, 260.

Mortgagor's representative releasing Equity of Kedemption, 71.

title registered subject to mortgage, 82.
Mortmain Acts, effect of new law, 70.
Municipal by-laws may be registered, 128.

charges, certificates as to, 67, (T.), 231.

Commissioner to levy for buildings, etc., 54.

charges implied lien. 10^, (T..) 242.

tax sale deeds, etc., 99, 100.

Names of attesting witness, 122, 124, 126.

'• New System," 1, 46, 66.

Next friend to act for married woman, (T.), 282.

" No Survivorship," entry of, 133.

Nomination of trustees, etc., by Court, 171.

Non-suited claims, 201.

Norfolk County divided, 48, 54.

Notarial copies from Quebec, 124.

Notice, application for foreclosure, 161.

by mortgagee exercising powers, 154, 155, (T.). 254, (App.), 294.

by mortgagee's personal representative, 157.

change in joint tenancy, 134.

estoppel to adverse claimants, 94, 95.

not implied from direction, 92, 93.

of Actions V, Assurance Fund, 200.

of appeal to D. B., and Atty.-Gen., 173,

of filing caveat, 182, 184, 192.

omission or non-receipt of, 204.

on tax sales, 99.

power of sale and foreclosure to be filed, 163.

re lost certificates, 113, 114.

revocation, power of attorney, 166.

service of, 96, 97.

served on investigation of title, 86.

served substitutionally, 96, 160, 196.

to caveator by registered owner, 185.

of trust or unregistered claim not binding, 133, 145.

withdrawal of caveat, 189.

826 INDEX.

Oatli, administration of. 98.

of office. (Man.)t 49, (T.). 222.

Occapant, adverse protected, 107, 109.

Occupation — (See Possession).

of attesting witness to be stated, 122, 120.

Office hours, 62, (T.), 226.

Offices, land titles constituted, (Man.), 47. (T.). 218.

Officers, appointment of, (Man.), 48, 55, (T.), 221.

indemnity for bona jide acts, 62.

to give secoity, 7, 49, 54.

under R. P. Act, 1885, continued, 56.

«• Old System," 146.

Omission, damages on account of, 197. 198.

not affecting 6ona fide purchaser. (T.), 204.

to lodge caveat, ground for non-suit, 95.

Order, appointing guardian, 208.

constituting liens, 105, 129.

for substitutional service of notice, form, 97.

on foreclosure, 160.
of foreclosure, 159, 161.

must be registered, 162.

of Judge or Court appealable, 180.

restraining proceedings — (See Caveats). 182, 185, 191-19'i.

Overholding tenant, re-entry by lessor, 140.

Owner, address required, 66, (T.), 236.

may have certificates consolidated or divided, 68.

meaning of term, 43, (T.), 214.

of Equity of Redemption, application by, 79.

to allow use of names in suits, 206, (T.), 281.

under prior title, 107, 109.

Ownership, absolute against ejectments, 109.

mode of registering, 67, 128, 134.

special S. O., 172.

Partitions, validated in certain cases, 75.
Partnership, service of notice on, 97.
" Patent,'* letters binding of, (T.), 230.

meaning of term, 45.

necessary before registration, 77-78.

INDEX. 327

Pa>inent, acknowledgment in deed, evidence, 98.

of mortgages to Provincial Treasurer, 152.
Penalties. 57. 62, 177, 208, (T.), 289.
Person of nnsoand mind, meaning of term, 44.
Personal representative dealing contrary to terms of will, 300.

devises ineffectual as against, 72.
judgment for costs, 127.
> liable for trusts, etc., 171, (T.), 263.
must prove will, etc., 168.
must register as owner, 72, 167-172.
notice by, 154, 157.
to be registered as owner, 262, 263.
to take estates. 70, 133. 167-172, (T.), 216 et $eq.
service of estoppel notices, 94, 95.

Petitions, orders dismissing, 301.

not invalid for informality, 204, 288.
to enforce caveats, 193-196, 303.

Plan book to be kept, 66.
Plans, duplicates to be filed, 66.

filed with applications, 84.

of subdivisions, (T.), 227, 280.

regulations resj^ecting, 115-117, 296, 297.

Plural and singular construed, 46.
Portage la Prairie, district formed, 47.
Possession, adverse, 107, 108.

by mortgagee on default, 153.

covenant in lease on default, 140.

defined, 46, 107, (T.), 215.

entry on recovery, 140.

Post office, addresses, 66, (T.), 236.

name of agent, 302.

Powers, implied covenants and, 21, 24.
Powers of attorney. 27, 134-137.

forms, 260, 261.
may bp registered, 1*29.
revocation, (T.), 261.
seals on, 167.

Euspended dealings by owner, (T.), 260.
sale vested in mortgagee, 156, (T.), 255.
transfer under, 159.

Practice on sales of land, 90.

recommended to applicants, 83.
Pre-emptions, certificates as to. 78.

328 INDEX.

Priority among registered owners of title, 107, 109, 120, 131, (T.),242, 243.

settled by entries in day-book, 65, (T.), 228.
Probate, not evidence of death, 169.

to be filed by heir or devisee, 65.

personal representative, 168.
Process of Court, registration of deeds under, 121.
Production of certificate dispensed with, 112, 115.

of documents, certificates, etc., for registration, cancellation,,
etc., 100, 110.

Procedure, rules in Court of Q. B., 173, 178, 180, 181.

in matters of caveat, 181, 196, 301.
Proceedings, service of, 97.

do not abate on death, etc., 93, (T.), 288.
not invalid for informality, (T.), 288.

Proofs of execution before a judge, 125, 127.
execution of instraments, 121, ft. seq.
made by certificate of title, 207.
manner of making, 98, 124.
of title with application, 45, 63-65, 99, (T.), 231.
Prosecutions for penalties, 209, 210, (P.), 289.
Prothonotarial copies of deeds, etc., in Quebec, 124.
Prothonotary may receive afiidavits without Manitoba, 123.
Provincial Treasurer may recover amount paid by suit, 202.

payment of mortgages, 25, 152.

out of assurance fund, 199, 200, 300.
Provisional certificates, 114.

after owner's decease, etc., 169.
errors in, 197.
Public highways, implied qualification, 105.
Publication of notice (see Substitutional Service.)

of application (T.), 235.
Purchasers, advice to, 106, 119, 120.

for value protected, 198, 204. (T), 244. 283.

how ascerUined, 206, (T.), 282.
under prior title, 107.

Qualifications implied, 13, 105. 242, 243.
of Dist. Eegr., 48.

deputy, 48, 55.
registrars (T.), 222.

INDEX. 829

Quarries inclnded in " Land *' (T.), 213.
Quebec, oopies of notarial instmments, 124.
Qneen, caveats on behalf of H. M., 112.
Queensland, report of commission, 110, 136, 203.
Queen's Bench Court may enforce summons, 11.

" Court " and "Judge," 44, 45.

jurisdiction, 28.
Quieting Titles Act, principles applied, 11, 98.

Railway lands not requiring patents, 77.

plans to be deposited, 117.
Rates, municipal, implied lien, 105.
" Realty " and " chattels real,'* 70.
Recitals in ancient documents, 98.
Re entry by lessor, 140.

cancellation of lease, 249.
Referred cases, 175, 181, (T.), 277.
Register books to be kept 65, (T.), 215, 228.
Registrar-General, furnishing of district offices, 6, 49, 292.

office abolished, 56.
Registrars for districts, powers and duties, 110, et, seq,
not to act as agents, etc., 56 (T.), 226.
qualifications, 48 (T.), 222.
Registration, application of owner, (T.), 231.
clear titles, (T.), 233.
Crown grants, (T.), 228.
date when effective, 101, 120.
districts defined, 47, 48, (T.), 219, 220.
each on separate folio, (T.), 236.
effect of, (T.), 229, 238.
encumbered estates, (T.), 234 et teq.
form of instruments, (T.), 226.
ineffectual if invalidly made under old system, 126.
manner of, 119-122.

necessary to pass intereit, 102, 118, 120, 130, 140, 159, (T.),

244.
on transmission by death, 169, (T.), 262.

263.
not void for informality under new system, 204.
of dealings under new system, 16, 67, 101, 104, 119, 128.
of trusts prohibited. 135.

880 INDEX.

Registration, priority settled, 65, 130, 131, 238.

right of, secured by instruments, 132.

time limited to secure priority in certain cases, 101, 121.

under old system, 54-56.
Registered instruments, copies as evidence, 125, 126.

titles, 12, 101.
Registry offices abolished, 6, 49, 54.
Rejection of applications, 10, 86, 90-92.
Release of charges, 152-153.
Remedies for loss of rights, 34.
Removal of judgments, liens, etc., 69.

trustee, etc., 134.
Renewal of illegible certiiicates, 69.
Rents, issues and profits taken by mortgagee, 153.
Repairs covenant by mortgagor and lessee, 132, 139, (T.), 248.

lessor may view state of, 139.
Repealing clauses, 41, 42, 55.

Representations not fraudulent do not void instruments, 209.
Representatives, personal, take estate, 70-76, 127, 133, 154, 157, 167. (T.),

217.
Reservations in Grown grants, 105, 135.
Residence, etc., of owners and parties to instruments, 66, 67.

of attesting witness to appear, 126.
Retroactive effect of statute, 75, 88.

Retrospective effect of registration of personal representative, 168.
Revocation of power of attorney, 28, 166, 167.

Riding Mountain and Russell in Portage la Prairie district, 48, 54.
Right of way, implied lien, 105, (T.), 243.
Rook Lake Co. in Morden dist., 48, 54.

Rules and regulations made by Gov.-in-Council, (T. , 284, 285.
of practice, etc., (Man.), 7. 63-69, 193196, 302.

Sales and foreclosure, 128, 156, et. seq,

by public auction, 157, 159.

contracts, equitable jurisdiction saved, 181.

entered in H. B, Co. land regr., 60-53.

of land for taxes, 99, 118.

under legal process, 121.

under power validated in certain oases, 73.
Safe holding, title may be registered, 64, 87.

INDEX. 881

Saskatchewan Dist. divided (T.), 219, 220.
Schedules, part of Act, may be altered, 46, 68.
Security by officers. 7, 49, 54, (T.), 223, 225.

for costs, 194, 195, 206.
Sheriff's sales and deeds, 121, 129, 130. 172, (T.), 263-267.
Short form, statutory lease or mortgage, (T.), 250, 251.

statutory form, (Man.). 120. 128, 138, 141, 143, 147.
title, R. P. Act, 1889. amended, 291.
Seal of office, 49, 120 (T.), 225.

court or corporation, proof of execution, 125.
on deeds, covenants, etc,, 144, 167.
power of attorney, 166-167.
Sealing exemplification copies, etc., 67.

necessary to effective registration, 101, 144.
Search final before signing certificates, 15.

rule of practice as to, 69.
Seed grain mortgages, 106.
Seizin interrupted by death, 73.

under new law, 70.
Selkirk Co. in Winnipeg Dist., 48, 54.
Service of notices, etc., 86, 96, 97.

of proceedings on caveat, 193, 196. •

" Singular" and " plural " construed, 46.
Special ownership, S. O., 172.

Specific performance, certificate of title conclusive, 108, (T.), 283..
" Standard time," used in Man., 7, 02, 63.
Stay of proceedings on caveat, 195.
St. Francois Xavier in Winnipeg District, 48.
Substitutional service of notices, 96, 155, 160.
Sub-mortgages, 25, 291.
Sub-Division plans, 116. (T.), 227.
Sub lease, registration of, 129.
Subpoena, form of. 111, 303.

Successors included in description of corporation, 46. 72.
Summons to witness, 11, 111, 175, 177, 303.

produce instruments, etc., 175, 177, 303.
Surveyor's certificate on plans, 116, (T.), 280.
Survivorship among joint tenants or trustees, 19, 133, (T.,) 1183.
Swamp lands, patents required, 78.

Tail estates abolished (T.), 217.

Tariff, new system, 57-60. Old system, 60-62.

332 INDEX.

Tariff of fees in Territories. 28o-287.
Tax certificates required. 67.

deed, inclades vesting certificate, 295. 296.
sales of lands for arrears, 99.
time for registering, 101.
Taxes implied as a lien, 105, (T.), 242.
Tenants in common, separate certificates, 104.

jointly, no survivorship, 133.
Territorial Real Property Acts, 7, 36, 213.
Time, corapatation of, 6d.

of default in mortgages, etc., 154.
standard used in Man., 62, 63.
Transfers of land. 17. 37, 117, 1J8, 119. 128 (T.). 2:8.
Transfer, meaning of term, 43 (T.), 214.
between husband and wife. 75.
• by direction. 88.

deed under process, 121.
endorsement, 118. 148, 149.
old system conveyances, 128, 130.
personal representative, 147.
effective only by registration. 120, 129.
in H. B. Co. register, 50-53.

implied covenants respecting charges, 131, 132, 149.
of registers, old to new offices, 49.
of charges, etc., 147, et $eq.
priority settled, 120, 131.
seals not necessary, 119.

signed by owner confers right of registration. 132,
to joint tenants, no survivorship, 133.
under power of sale, 158.
verified by attesting witness. 120, 127.
Transfers and deeds distinguished, (T.), 241.

of encumbered estates, implied covenants, (T.), 246.
land, (T.), 244. 245,246.

mortgages, encumbrances or leases, (T.), 258, 259.
Transferee, implied covenants by, 246, 260.
right to registration, 132.
rights vested in 299.
suits by, 149.
to assume charges, 131.
Transferor may exclude survivorship among joint trustess, 19, 133.
Transmission by death or insolvency, 20, 72, 142, 149, 167-172.
includes tax sales and assignments, 292.
meaning of term, 45, (T.), 215.

INDEX. 833

Treasurer, Provincial discharging mortgages, 152.

payments assurance f and, 200, 202, 203,300.
Trusts, declarations not to be registered, 135, 298, 299, 300.
knowledge no presumption of fraud, 185.
may be enforced in Equity, 4, 136.
not affected by transmission, 171.
not to affect bonajide dealers, 145.
system discussed, "Queensland Commission," 136.
Trust^s, heirs, etc., included in term, 46.

jointly, no survivorship, 133, (T.), 283.
powers under settlement, 174.
removable by order of Court. 171, (T.), 263, 284.
title absolute, 4.

Uncertain cases referred to Court, 175, (T.), 234.
Under tenant — (See Sub-lease).
Unregistered liens, 105.
Uses, statute affected, 70.

Vacant period, transmission by death, 73.
Vacating, lis pendens, 30, 33.
" Valuator," meaning of, 44.
Valuation of lands, 117, (T.), 285.
Varennes County, Winnipeg District, 48.
Vesting leases in mortgagee, 142.

of estate by power of sale, 159.

orders— (See SherifTs deeds), 129, 130, 172.
Verification of application, 63.

instruments by witness, 120-127, (T.), 271.

Waiver of notice, etc., by owner, etc., 158.
Westboume County, Portage la Prairie, 47, 54.
Winnipeg District established, 48, 54.

office retains records, of unorganizd divisions, 74, 76.

834 INDEX.

Wife may convey to husband , 19, 76.
dower abolished, 73, (T.), 217.
rights in estate on intestacy, 73, (T.), 217.
adultery, disinherits, (T.), 218.
Withdrawal of application, effect of, 10, 92.

consent and forms, 90, 91.
undivided shares, 295.
caveats, 189, 191.
Witness, attesting death or absence, 125, 127.

instruments, 120, 122, H. seq.
names set forth, 122, 126.
form of summons provided, 296, 303.
none to transfer of mortgage, 148.
to application, when required, 64.
to prove execution of instrument, 121, (T.), 271.
Woodlands in Portage la Prairie, transferred to Winnipeg, 48.

3 blQS 0b3 15b QSa

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