Full text of "Registration of title to land throughout the empire : a treatise on the law relating to warranty of title to land by registration and transactions with registered land in Australia, New Zealand, Canada, England, Ireland, West Indies, Malaya. &c. : a sequel to "The Australian Torrens system" /by James Edward Hogg"

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UNIVERSITY OF TORON

ERINDALE COLLEGE
LIBRARY

Presented by
Prof. D. Lambden

^ FEB 2 0 1992

BAN 1 8 1993

OCT 3 1 1993
OCT-81996

REGISTRATION OF TITLE TO LAND
THROUGHOUT THE EMPIRE

BOOKS BY THE SAME AUTHOR

The Australian Torrens System.

Ownership and Incumbrance of Registered

Land.
Precedents for Transactions with Registered

Land.
Conveyancing and Property Law in New South

Wales.
Conveyancing Precedents for New South Wales.
Deed Registration in Australasia.
Insurance Law in Australasia.

REGISTRATION OF TITLE TO LAND
THROUGHOUT THE EMPIRE:

A TREATISE ON THE LAW RELATING TO WARRANTY OF
TITLE TO LAND BY REGISTRATION AND TRANS-
ACTIONS WITH REGISTERED LAND IN
AUSTRALIA, NEW ZEALAND, CANADA,
ENGLAND, IRELAND, WEST
INDIES, MALAYA, &c.

A Sequel to " The Australian Torrens System.'

JAMES EDWARD HOGG, M.A., Oxon.,

of Lincoln's inn, barrister-at-law, and of the Australian bar ;

Author of The Australian Torrens System, Ownership and Incumbrance of Registered

Land, die.

TORONTO :

THE CARSWELL COMPANY, LIMITED

LONDON :

Sweet & Maxwell, Limited

1920

ERINDALE
COLLEGE

LIBRARY

PREFACE

This book treats registration of title throughout the Empire as
my " Australian Torrens System " treated registration of title in
Australasia — that it, it is an attempt to deal with the subject as a
whole and point out likenesses and differences in the various sepa-
rate systems.

Since the " Australian Torrens System " was published (in
1905), registration of title has made fair progress, though inten-
sively rather than in extent of area. The only areas to which it
has been newly extended since then seem to be the protectorates of
East Africa and Uganda. The greatest intensive growth has
taken place in Canada — particularly Manitoba, Saskatchewan and
Alberta. There the " Torrens System " is embodied in a mass of
statute and case law that promises to equal in bulk the mass of
Australasian registration law. Both statute and case law are still
growing — rapidly in Canada and more slowly in Australasia. In
Australasia there has been little really new legislation since 1905,
though the registration statutes have been consolidated afresh in
Victoria and New Zealand, and consolidations have also been enacted
in Fiji and Papua. Some important cases have,however, been decided
in the Australian Courts, such as Fink v. Robertson (4 C. L. B.
864), Barry v. Heider (19 C. L. B. 197), and West v. Read (13
S. B. (KS.W.) 575.) As to other parts of the Empire, in the
Federated Malay States the statutes have been consolidated and
important cases decided in the local courts and on appeal to the
Privy Council.

Mr. Thorn's "fCanadian Torrens System" (published in 1912)
has enabled the system, as established in Manitoba, Saskatchewan,
Alberta, and North-West Territories, to be compared with the
Australian system on which it is modelled. Since 1912 the regis-
tration statutes in Manitoba and Saskatchewan have been consoli-
dated afresh, and so too in Ontario. Judging by the references
to the " Australian Torrens System " in Canadian reported cases
my book of 1905 seems to have been found quite as useful in Canada
as in Australasia.

Including the eleven Australasian jurisdictions there are not
more than thirty-one separate legislative units of the Empire in
which a system of registration of title (as defined and treated of
in this book) is in operation. Thus, in about fifty jurisdictions

PREFACE.

there is no system of registration of title. Omitting India, how-
ever, and omitting those parts of the Empire — such as Scotland,
Quebec, and South Africa — where the local jurisprudence is based
on the civil law and not the English common law, it will be found
that the jurisdictions in which registration of title has not yet
been set up are not of the first importance either juridically or
commercially. Of the totality of the British dominions subject to
English (as distinguished from the civil or foreign) law, the
largest and most important half has adopted some system of regis-
tration of title to land. Among the jurisdictions referred to in
this book the Federated Malay States and Ceylon only — with the
possible addition of East Africa, Uganda and Sudan — can be said
to have a basis of jurisprudence other than the English common
law, and even in these cases the rules of the common law and of
English equity have been largely introduced by statutory enact-
ment.

The present book aims at supplementing the "Australian
Torrens iSystem " by referring to statutes and cases enacted and
decided since 1905, as well as giving a comparative view of all
systems of registration of title in England, Ireland, and the over-
sea dominions. The relative merits of the two main types of
registration of title, as they stand to-day — the Australian and the
English — can thus be compared. It is of some importance at the
present time that the best system should be brought to the front,
since registration of title is likely to be an economic factor in
schemes of land settlement in all parts of the Empire.

Among the *cases cited will be found a few ("unreported ")
from Jamaica. For most of these I am indebted to the Registrar
in Jamaica, who has been good enough to send me MS. copies of
the judgments.

James Edwaed Hogg.
6, New Square,
Lincoln's Inn,

London, November, 1919.

CONTENTS

PAGE

Preface v

Contents vii

Table of Cases xi

Abbreviations xxi

Addenda. Corrigenda xxiii

CHAPTER I.
Introductory.

Sect. 1. The meaning of registration of title 1

Sect. 2. The separate systems and jurisdictions 5

Sect. 3. Nomenclature 19

CHAPTER II.

Initial Registration and Removal from Register.

Sect. 1. Registrable interests 24

Sect. 2. Procedure on initial registration 42

Sect. 3. Removal of land from the register 72

CHAPTER III.

Possession and Registration.

Sect. 1. Possession before initial registration 74

Sect. 2. Possession after initial registration 84

CHAPTER IV.

Conclusiveness of the Register.

Sect. 1. Meaning and limits of conclusiveness 94

Sect.. 2. Rights of the Crown 103

Sect. 3. Public burdens 105

Sect. 4. Voluntary transactions 106

Sect. 5. Unregistered transactions Ill

Sect. 6. Notice.

Sub-sect. 1. How far the register is notice 119

Sub-sect. 2. Effect of notice of unregistered interests . . . 120

Sect. 7. Mistake 129

Sect. 8. Fraud 136

Sect. 9. Forged and invalid instruments 143

Sect. 10. Liability to rightful owner for value of land 147

viii CONTENTS.

CHAPTER V.

Equitable Estates and Interests.

page

Sect. 1. Equitable interests generally 153

Sect. 2. Trusts, their protection and enforcement 155

Sect. 3. Equitable interests other than trusts 164

Sect. 4. Protection by restrictive entry (excluding trusts) 172

CHAPTER VI.
Mortgage and other Money Securities.

Sect. 1. Securities in general 191

Sect. 2. The statutory mortgage.

Sub-sect. 1. Creation of mortgage 205

Sub-sect. 2. Rights and liabilities of the mortgagee 235

Sub-sect. 3. Liabilities and rights of the owner of the

land 269

Sect. 3. Mortgages in British Columbia and British Honduras... 275

Sect. 4. Equitable mortgages.

Sub-sect. 1. Mortgages by deposit of certificate of title. . 278
Sub-sect. 2. Other equitable mortgages 285

Sect. 5. Securities other than mortgages.

Sub-sect. 1. Non-statutory securities 289

Sub-sect. 2. Statutory securities 295

Sub-sect. 3. Securities (non-mortgage) in British Co-
lumbia and British Honduras 299

CHAPTER VII.

Sale. Transfer. Lease.

Sect. 1. Transfer on sale.

Sub-sect. 1. Contracts for sale 301

Sub-sect. ,2. The statutory transfer 309

Sub-sect. 3. Transfer in British Columbia and British

Honduras 329

Sect. 2. Leases.

Sub-sect. 1. England, Ireland, Ontario. British Columbia,

British Honduras 332

Sub-sect. 2. The statutory lease 333

CHAPTER VIII.
Creditors' Rights. Vesting Orders. Rectification of Register.

Sect. 1. Creditors' rights.

Sub-sect. 1. Bankruptcy, insolvency, creditors' assign-
ments 351

Sub-sect. 2. Judgments and executions 357

Sect. 2. Vesting orders 364

Sect. 3. Rectification of register 367

CONTENTS. ix

CHAPTER IX.

Death of Registered Owner.

page

Sect. 1. Transmissible interests 371

Sect. 2. Non-transmissible interests 382

CHAPTER X.

State Indemnity for Loss 384

Appendix of Statutes 401

New South Wales 401

Victoria 402

Western Australia 465

Papua 471

New Zealand 474

Fiji 510

Federated Malay States 511

Ontario 520

British Columbia 551

Manitoba 579

Saskatchewan 600

Alberta 644

North-West Territories 662

Jamaica 665

Trinidad and Tobago 670

Leeward Islands 684

British Honduras 703

INDEX 709

TABLE OF CASES

Acme Co. 0. Huxley, 164, 166, 169,

171, 180, 282, 283.
Adanac Oil Co. 9. Stocks, 361.
Administrator-General v. Clough,

110.
Alagappa Chetti v. Perianayagam,

281.
Alagappa Chitty v. Vanjoor Madah-

sar, 363.
Alarie & Frechette, re, 257.
Albernin Land Co. p. Registrar-Gen-
eral, 331.
"Albion," &c. (Ships), in re, 171.
Alexander v. Simpson, 102, 179, 233,

281 354
Allan, in re, 374, 383.
Allan & O'Connor, in re, 316.
Allen (Samuel) & Sons, in re, 167.
Allen, in re, 87.

Allison r. Petty, 164, 168, 286.
American-Abell Co. & Noble, re.

171.
Anderson, in re, 55.
t Anderson p. Baker, 47.
Anderson v. Davy, 142, 143, 202.

389.
Anderson v. Morgan, 143.
Anderton, in re, 35, 153.
Annable v. Coventry, 107, 128.
Annand, in re, 186.
Anning v. Anning, 118, 329.
Anthony v. Speed, 214, 265, 318.
Archibald r. Archibald, 58.
Arnold v. Wallwork. 83, 84. 92.
Arnot r. Peterson. 117, 126, 146. 189,

236.
Arthur & Co. r. Cullen, 303.
Asavero v. Monroe, 101.
Assets Co. v. Mere Roihi, 96, 107,

109, 128, 131, 140. 141, 294, 322.
Att.-Gen. r. Bristowe, 35.
Att.-Gen. p. Dickson, 103.
Att.-Gen. r. Hargrave, 174.
Att.-Gen. v. Hoggan, 29.
Att.-Gen. v. Love, 35.
Att.-Gen. r. Odell. 7, 98. 109, 114,

131, 145, 146, 168, 195, 196, 262.

313, 314, 389, 394.
Att.-Gen. r. O'Sullivan. 39.
Auriol v. Alberta Land Co.. 20, 305.

306, 307.
Austin r. Austin, 233.
Australian Deposit Bank, in re.

254.
Australian Deposit Bank p. Lord,

238.

Baart v. Martin, 137.
Bacchus Marsh Brick Co. v. Fed-
eral Build. Soc, 266.
Bailey v, Cribb, 145, 146, 236.
Bain p. Fothergill, 308.
Bain v. Pitfield, 126, 267, 360.
Baker's Creek G. M. Co. v. Hack,

126, 211, 340, 344, 346, 347.
Balding v. Nicholas, 162, 361. 382.
Balfour to Public Trustee, 228.
Balkisheen Das v. Legge, 292.
Ballarat Land Co., ex p., 292.
Bank of Australasia v. Att.-Gen..

29.
Bank of Hamilton v. Hartery, 115,

125, 363.
Bank of Hamilton & McAllister, in

re. 232.
Bank of New South Wales v. Pal-
mer, 248, 341.
Barber v. Petone, 101.
Barham v. Hoggins, 146.
Barnes v. James, 127. 169. 172, 189.
Barnet v. Williams, 38, 59.
Barns p. Queensland National

Bank, 253, 254, 255.
Barry t\ Heider, 11, 99, 100. Ill,

112, 114, 116, 117, 118, 153, 154.

161. 164. 166. 169. 171, 189, 222.

223, 278, 283, 310, 314.
Barry v. Schmidt, 222.
Bartlett, re, 88.
Bashford 0. Bott, 187.
Batham, ex p., 141.
Beatty v. Bailey, 94, 100, 234, 235,

238. 240, 254, 310.
Beckett, in re. 50.
Beckett p. Dist. Land Registrar, 59.

178, 282.
Beckford v. Wade, 96.
Belize Estate Co. v. Quilter. 17. 73.

81, 83, 88.
Bell, re, 50.

Bell v. Beckman, 58, 123, 142.
Bell 9. Rowe, 240, 274.
Benn & Grice, in re. 32.
Besnard r. La Corporation Episco-

pale, 308.
Bethune r. Porteous, 58.
Bettle, ex p., 352, 367.
Bevan r. Dobson, 337, 338.
Bevilockway v. Schneider. 102, 110.
Bickle v. Roach, 112.
Bielfeld. in re. 184.
Biggs v. McEllister. 107.
Billiet v. Commercial Bank, 98, 101.

Xll

TABLE OF CASES.

Bishop v. Hunt, 4.

Black v. Poole, 77. 78, 92.

Blackham v. Haythorpe, 302.

Blackwell v. Davy, 390.

Blake v. Bayne, 380.

Blunt v. Marsh, 290, 291.

Bodley v. Macdonald, 20.

Bond, ex p., 340.

Bond v. McClay, 201, 360, 361.

Bonnin v. Andrews, 75, 96, 109, 131,

397
Boon'r. Huntley, 319.
Bosquet, in re, 360.
Boswell v. Reid, 317.
Boulevard Heights v. Veilleux, 326.
Boulter-Waugh & Co. v. Phillips,

see Union Bank of Canada v.

Boulter Waugh, Ld.
Bourke. in re, 103.
Bradshaw v. Patterson, 35, 62.
Brady v. Brady, 142, 145.
Bree v. Scott, 268.
British & Australian Co. v. South

Queensland Pastorate Co., 257.

284.
Broadfoot v. Foxwell, 315.
Broder v. Glenn, 302.
Brond v. Bromhall, 368.
Brooker's Colours v. Sproules, 345,

347, 348.
Brooks, in re, 171, 354, 360.
Brooksbank v. Burn, 102.
Broughton, in re, 358, 360.
Brown v. Abbott, 286, 298.
Brown v. Broughton, 143. 145.
Brown v. Wellington & Manawatu

Ry., 211.
Buckett v. Knobbe, 92, 99.
Buckley, in re, 130.
Bucknall v, Reid, 211, 215. 337, 341,

346.
Bucknam v. Stewart, 38, 58. 59.
Bull v. Simpson, 100.
Burden v. North Alberta Registrar,

3, 133, 135, 394.
Burke v. Lock, 82, 88.
Burne v. Stuart. 252, 270.
Burnell, ex p., 48.
Burns v. Registrar of Titles, 42, 79.
Burton, in re, 220, 239, 253, 258.
Burwood Land Co. v. Tuttle. 269.
Butler v. Fairclough, 127, 128, 141,

15o, 187, 188, 189, 287, 288.
Buttemere v. Hayes, 60.

Cadd v. Cadd, 155.

Cain, in re, 208, 274, 367.

Cairns v. Burgess, 346.

Calcott & Elvin's Cont., in re, 352,
354.

Calgary (City) v. Dominion Radi-
ator Co., 103.

Cameron, ex p. (15 N.S.W.), 146,
190.

Cameron, in re (6 V.L.R.), 373.

Campbell, ex p., 161, 274.

Campbell v. Alloway, 61.
Campbell v. Auckland Dist. Land

Registrar, 85, 98, 202, 203, 208,

241, 264.
Campbell v. Bank of New South

Wales. 255. 259.
Campbell v. Commercial Bank, 219,

220.
Campbell v. Holyland, 259.
Campbell v. Imperial Loan Co., 293.
Campbell v. Morgan, 227.
Campion, in re, 374. 375.
Canada Life Ass. Co. v. Assiniboia

Registrar, 20. 388.
Canada Permanent Mortg. Corp. v.

Martin. 302. 306.
Canadian Birkbeck Invest. Co. v.

Ryder, 3.
Canadian Explosives, re, 333.
Canadian Mortgage Invest. Co. v.

Cameron, 100, 209.
Canadian Pacific Ry., re, 39, 65, 71,

199.
Canadian Pacific Ry. r. Blunt, 301.
Capital & Counties Bank v. Rhodes,

7, 114, 168, 193, 194. 207, 214, 220.

243, 285, 338.
Carden v. Gillett, 141.
Carson's Estate, in re, 50.
Central Trust Deposit Co. v. Sni-
der, 185.
Chambers v. Bonar, 367.
Chan Gun Lai v. Lim Chu Kuan,

180.
Chan Gun Lai v. Anderson Pole,

108, 159, 160, 352, 354, 356.
Chang Lin v. Chong Swee Sang.

107. 108. 158, 180.
Chant v. Rhodes, 242.
Chapman v. Edwards, 125, 126,

127.
Chapman v. Robertson, 31.
Ohappell v. Broughton, 58.
Charters v. Cosmopolitan Land

Bank, 178, 205, 281, 284. 285.
Chauncey v. Palmer, 326, 330.
Chia Guan Chip v. Dunlop. 358.
Choma v. Chmelyk, 167. 169.
Chomley v. Friebrace. 107, 108.
Christie v. Taylor, 119, 309.
Church's Caveat, in re, 360.
Clagstone & Hammond, in re, 154,

173, 175.
Clark & Harvey, in re, 337.
Clarke r. Roe. 154. 362, 382.
Clarke & Solomon's Agreement

Trusts, re, 365, 367.
Clazy v. Registrar of Titles, 224.
Clissold, ex p., 37, 39.
Clissold v. Bellomi, 58.
Coast Lumber Co. v. McLeod, 182,

186, 189, 287. 289, 298.
Cochrane v. Federal Commr. of

Land Tax, 297.
Coker v. Spence, 60, 304.
Coleman v. Riria Puwhanga, 131,
144, 146.

TABLE OF GA8ES.

Xlll

Collins v. Featherstone. 58.
Colonial Bank v. Pie, 122, 127, 128,

140.
Colonial Bank r. Riddell, 281.
Colonial Bank v. Roache, 268.
Colonial Invest. Co. V. Cobain, 186,

308.
Colonial Invest. Co. v. Foisie, 242.
Colonial Invest. Co. v. King, 240,

257, 260, 290.
Colonial Invest. Co. v. McManus,

259, 260.
Commercial Bank v. Breen, 216,

269.
Commercial Bank v. Carson, 42.
Commercial Bank v. McCaskill, 77,

78.
Commr. of Stamps v. Wienholt,

157, 163.
Commonwealth v. New South

Wales (State), 96, 103, 228, 329.
Commonwealth v. Registrar of

Titles, 315, 318.
Concord Municipal Dist. v. Coles,

52, 58, 59, 183, 184.
Congested Districts Board, in re,

176.
Conolly v. Noone, 185, 280, 284.
Cooke v. Union Bank, 129.
Cooper, in re, 35.
Cooper v. Anderson, 126.
Cooper v. Strapps, 298.
Cornish v. Cargeeg, 306.
Coronation G. M. Synd. to Collins,

72, 227.
Coventry v. Annable, 107, 141.
Cowan, in re, 380, 381.
Cowell v. Stacey, 126.
Cox v. Bourne, 147, 151. 390. 395.
Credit Foncier v. Redekope, 260.
Crisp v. Snowsill, 98, 101, 102.
Cross v. McLeod, 269.
Crout v. Beissel. 32, 126, 127, 129.
Crow v. Campbell, 107.
Crowley v. Templeton, 4, 165, 199,

206. 211, 212, 218, 286, 314, 317.

334, 335, 337, 340.
Crowly t;. Bergtheil, 4.
Cudmore v. Cudmore, 136. 368.
Cullen v. Thompson. 140, 142.
Cuningham, ex p., 28.
Cushing v. Knight, 303.
Cuthbertson v. Swan, 111, 301.

Davis v. McConochie, 111, 168, 286,

341, 342.
Davis v. Wekey, 154.
Davy, ex p., 145, 146.
Deane, in re, 171.
De Britt v. Carr, 29.
De Cordova v. Registrar of Titles.

159, 160, 161, 213.
Delaney r. Sandhurst Build Soc,

289, 291, 292.
De Lauret, in re, 31, 34, 38.
Denny v. Nozick, 102.
Dettman, ex p., 146, 190.
Dinsmore v. Philip, 276.
Dodds v. Harper, 125, 195, 236, 263,

268.
Doe v. Goodier, 245.
Dominion of Canada Invest. Co. v.

Carstens, 242.
Donaldson v. Hemmant, 303.
Donaldson v. Noble, 39.
Douglas v. Mutual Life Ass. Co.,

258, 271. 274. 290.
Down v. Atty.-Gen., 122.
Drake v. Templeton. 213.
Drewry v. Cowie, 287.
Dufaure v. Kenealy, 341, 342.
Duggan, in re, 344.
Dunbar's. Off. Assignee v. Deal, 338,

340.

Eaton, in re, 33, 34. 35, 38, 53.

Ebbing, re, 182, 287.

Eccles v. Hall. 141.

Edmonds r. Hamilton Prov. Soc,

245.
Edwards, in re, 157. 161. 360, 361.
Edwards r. Freeborn, 308.
Elliott, re. 281. 284.
Ellison, ex p.. 340.
Embling v. Whitchell, 307.
Emmerson v. Maddison. 35.
Engell i'. Fitch. 308.
Entwisle v. Lenz, 115, 362.
Equity Trustees Co. & O'Halloran,

ex v., 381.
Equity Trustees Co. r. Ayrey, 248.

354.
Equity Trustees Co. v. Lee. 216, 269.
Everingham v. Penrith Municip.. 70.
Ewart v. General Finance Soc, 252.
Eyre v. McDowell, 360. 361.

D'Albedyhll r. DAlbedyhll, 181.
Dalgleish, re, 55.

Dalton v. Dominion Trust Co., 276.
Daly v. Papworth, 395, 397.
Daly v. Union Trustee Co., 243.
Davidson v. Brown, 20, 305.
Davidson v. O'Halloran. 65, 194, 200.
Davies v. Herbert, 270.
Davis, in re, 37.
Davis v. Dougall. 304.

Fabian v. Greytown North (Bor-
ough), 105.

Fama v. White. 308.

Farah v. Glen Lake M. Co., 96. 106.
313.

Farrelly v. Farrelly, 372.

Farrington v. Smith. 216. 269.

Foulke s caveat, in re, 183.

Fawell r. Andrew. 244.

Fawkes v. Att.-Gen., 143. 145, 391.

-XIV

TABLE OF CASES.

Featherstone v. Hanlon, 82, 83, 88,

99.
Fels'f. Knowles, 11, 91, 94, 127, 129,

202, 337.
Fergie v. Byrne, 49, 59, 75, 78.
Fialowski v. Fialowski, 143, 145,

180, 282, 284.
Fink, in re, 367.

Fink v. Robertson, 208. 238. 240.
241, 242, 243, 259. 260, 277. 290.
Finkelstein v. Locke, 254.
Finlay, ex p., 241.
Finn v. London Bank of Australia,

216, 244, 249, 268.
Finnoran v. Weir. 91, 92.
Finucane v. Registrar of Titles, 71,

150, 168, 201, 286, 386, 388, 390,

391, 393, 395.
First National Bank v. Cudmore.

216.
Firth r. Inland Revenue, 271.
Fish v. Bryce, 107, 142.
Fischer v. Bennett. 304.
Fisher v. Gaffney, 61.
Fitzgerald v. Archer, 39.
Fitzmaurice's Estate, in re, 381.
Flureau v. Thornhill, 308.
FoDseca v. Jones, 108
Forbes v. Butler, 307.
Foster v. Stiffler, 302.
Fotheringham v. Archer, 36, 142,

146.
Fox v. Reid, 188.
Franklin r. Ind. 83.
Fraser v. Douglas, 41, 324.
Freeman v. Calverley, 302.
Friebe v. Cullen, 172, 190.
Furlong & Bogan's Cont., in re, 45,

115.
Furner v. Furner, 316.

Gaar Scott Co., re. 287.
Gaffney v. McLaughlin, 58, 60.
Gallagher, ex p., 136.
Gangell v. Townsend, 92.
Gardner v. Siau Kuan Chia, 167.
Gauthier v. Rex, 105.
Gebhardt v. Dempster, 298.
General Finance Co. v. Perpetual

Executors Assoc, 126. 127, 172,

189, 307.
Geoghegan, in re, 313.
George v. Aust. Mut. Prov. Soc, 33,

127. 129.
Geraldton Municipality, ex p., 318.
Gibbs v. Messer, 98, 107, 143, 145.

201, 207.
Gilbert v. Bourne, 140. 142.
Gilbert v. Ullerich, 118, 167, 189,

190 287
Giles V Lesser, 171, 190, 356.
Gladstone Municipality v. O'Neill,

99.
Goddard v. Slingerland, 116.
Goldstone's Mortgage, in re, 98, 119,

192, 196, 201, 202, 207, 211, 212,

213, 233, 234, 337.

Goodbody v. Miller, 62.

Goodisson v. Goodisson, 130.

Gow, in re, 381.

Grace v. Kuebler, 120. 187, 188, 190.
263, 267, 287, 289. 308.

Graham v. Jones, 354.

Granby Consol. Mining Co. v. Esqui-
maux Ry., in re, 102, 183, 551.

Grand Trunk Pacific Co., in re, 182.

Graves, ex p., 59, 185.

Great Central Frehold Mines v.
Chapman, 230, 232.

Great Western Lumber Co. v. Mur-
rin, 236, 242.

Green Caveat, re, 185, 189.

Green v. Cooke, 229.

Green v. Ponton, 147, 387.

Greenaway, re, 367.

Greenshields Co.. re, 171.

Gregory v. Alger, 129.

Gregory v. Princeton Collieries, 362,
363.

Greig v. Watson, 257.

Gunn v. Land Mortgage Bank, 255.

ir.

Hacker v. Australian Property Co.,

304.
Haji Abdul Rahman v. Mohamed

Hassan, 16. 108, 112, 116. 167, 205,

206, 286, 289, 290, 291. 293, 294.
Hall v. Commercial Bank, 179, 278,

281, 284.
Hall v. Yorkton Registrar. 203, 388.
Hamilton, ex p. (3 SO, 49, 59, 211.
Hamilton, re. (2 S.R.), 181.
Hamilton v. Iredale, 75, 96, 109, 131,

133. 134, 397.
Hansen v. Franz, 133, 135.
Hare v. Terry. 345.
Harris v. Keith, 88, 89.
Hart v. Stratton. 244.
Hassall, ex p., 254. 255.
Hassett v. Colonial Bank, 132, 133.

149, 151.
Hay v. Commr. of Stamps, 118.
Hay v. Nixon. 36. 58.
Hay v. Soiling, 123, 124.
Hayden, in re, 35.
Hayes v. Bourne, 164. 389, 395.
Hazlette, in re, 51, 65.
Heath v. Commercial Build. Co.,

151.
Heath v. Pugh, 259.
Heathcote, in re, 372.
Hegarty v. Ellis, 36.
Herbert & Gibson, re, 363.
Herring, ex p., 367.
Hervey v. Inglis, 252.
Hextall v. Burns, 135.
Higgins v. Berry, 36.
Hill v. Cox, 336.
Hill v. Keene. 185, 305. 307.
Hodgson, in re, 318, 360.
Holmsted v. Canadian Northern

Ry. Co., 305.
Honeybone r. National Bk. of New

Zealand, 171.

TABLE OF CASES.

Hood v. Barrington, 372.

Hope & Co., in re, 127, 172.

Hope's Trusts, in re, 367.

Home v. Home. 211, 337.

Hosken v. Danaher. 316. 324. 380.

Houison, in re, 183.

Hourigan, in re, 110.

Howard v. Currie, 305.

Howard r. Miller. 3, 19. 43, 113, 116,

154, 185. 276, 282, 286, 301, 302,

305.
Howell v. Owen, 229.
Howes, in re, 49.
Howie v. Barry. 374.
Hudson's Bay Co. r. Kearns, 4, 125,

137, 282.
Hudson's Bay Ins. Co. r. Creelman,

228 329
Hunter v. Caldwell. 233.
Hunter v. Player, 92.
Huntingdon p. Inland Revenue

Commrs., 257.
Hussey's Estate, in re, 136, 369.
Hutchinson, in re, 33.
Hyde v. Chapin Co., 216.

Imperial Elevator Co. ». Olive, 117,
118, 182, 184, 186, 189, 287, 288,
289, 298.

Independent Lumber Co., v. Gardi-
ner. 141.

International Harvester Co., re, 39,
182, 287.

Irish, re, 36. 39.

Isman v. Sinnott, 260.

Ivey v. Commrs. of Taxation. 230,
279.

James v. James, 208, 257.
Jamieson Caveat, in re. 183, 302.
Jayah bin Kachi v. Sahria. 5.
Jellett r. Wilkie, 116, 118, 358, 360,

361.
Jellicoe v. Wellington Loan Co.,

216.
Johansson r. Cronquist, 101.
John r. Dodwell & Co., 140.
Johnson, ex p., 186.
Johnson v. Billyard. 118. 341.
Johnson v. Templeton, 86.
Josef v. Mulder, 339.
Josephson r. Mason, 83, 84, 91, 92.

111.
Joske p. Huon, 308.

Kelly v. Doody, 352.

Kelly v. Fuller, 235.

Kemp v. Douglas, 36.

Kenna v. Ritchie, 65.

Kennedy v. Suydam, 96, 313.

Keogh r. Registrar-General, 287,
288 290

Keogh & Kettle, in re, 7, 8, 27. 28,
44, 51.

King v. David Allen & Sons, 167,
185, 186.

Kirkham p. Julian, 334.

Kissick v. Black, 142.

Knight r. Rockdale Municipal Dis-
trict, 99.

Knox v. Phillips, 240.

Kolp v. Hunter, 142.

Lachaume r Broughton. 61.

Lake v. Jones, 76, 77, 78, 128.

Lamboume r. Hosken, 79.

Lamson, ex p., 54, 330.

Land Registry Act, in re, 226, 275.

Land Titles Act, in re. 25, 42.

Lang Estate, in re, 142, 155.

Lange v. Ruwoldt, 111.

Lascelles v. Benlisa, 178, 179. 205.
281, 285.

Leach v. Haultain, 354.

Lee v. Armstrong, 359.

Lee r. Harrison, 359.

Leonard's Estate, in re. 136, 369.

Levy v. Gleason, 116.

Liao Ng v. Koh Vun, 308.

Lillis, in re, 3.

Lim Pang Geok v. Sokalingam
Chetty, 143, 145.

Limoges r. Campbell, 100.

Lind. in re, 186.

Linstead r. Hamilton Prov. Soc.
245.

Little v. Dardier, 374.

Lloyd v. Mayfield. 133.

Lockhart, in re, 324.

Loke Yew v. Port Swettenham Rub-
ber Co., 16, 108, 109, 112, 115,
116, 118, 121, 125. 128. 129, 131.
136. 137. 141, 142, 165, 167, 184,
286, 291, 368.

London Chartered Bank v. Haves,
281.

London & S. W. Ry. r. Gomm, 154.

Long v. Town. 257.

Longworth r. Campbell. 375.

Lord & Ellis, re. 106. 311, 312.

Louch r. Ball. 269. •

Loxton r. Moir, 263. 367.

Kaihu v. Valley Ry. Co., in re, 226.
Katene Te Whakaruru v Public

Trustee. 145.
Kelly v. Bentinck. 49.
Kelly & Colonial Invest. Co., in re,

213.

Maddock r. Registrar of Titles, 374.

375. 377. 380. 381.
Magor v. Donald, 146.
Mahan r. Manners, 236.
Mahony v. Hosken, 211, 215, 295,

297, 298.

XVI

TABLE OF CASES.

Mailer r. Clayton, 308.

Main v. Robertson, 134.

Maitland v. Matthews, 308.

Major, in re, 243.

Maltby v. Pang See, 88.

Mandeville, re, 276, 362.

Manning, ex p., 381.

Manning v. Commr. of Titles, 55.

Manning v>. Crossman, 91.

Mant v. Deputy Federal Commr.,

185.
Marchan, in re, 363.
M'arsden v. McAlister, 134.
Marshall v. Smith. 373.
Martin, In re, 11, 75, 370.
Martin v. Coultas, 111, 340, 345, 347,

348.
Martin v. Martin, 367.
Massey v. Gibson, re, 363.
Matheson, ex p., 67, 321.
Mathieson v. Mercantile Finance

Co., Ill, 221, 253.
Matthews v. James, 304.
Matthews v. Matthews, 93, 374, 380.
Matton v. Lipscomb, 259.
Mauch v. National Securities, 236.
Maybery v. Williams, 301.
Measures v. McFadyen, 323, 340, 345.
Mercantile Build. Co. v. Murphy,

221.
Merchants' Bank v. Hastie, 188.
Merchants' Bank v. McKenzie. 110.
Merchants' Bank of Canada v. Price,

360.
Merry v. Aust. Mut. Prov. Soc, 135,

308.
Messer v. Gibbs, 143.
Messiter v. Wollerman, 341,. 354.
Metropolitan Build. Soc, ex p., 28,

58.
Miller v. Commr. for Railways, 234.

235 314 341.
Miller v. Davy, 96, 133, 394.
Miller v. Imperial Loan Co.. 245.
Minister for Lands v. Jeremias, 290.
Moir v. Loxton. 212, 214. 263, 316.
Monaghan v. Gleeson, 151.
Monolithic Build. Co., in re, 121,

128, 131.
Montreal Trust Co. v. Boggs, 242.
Mooney t?. McMahon. 45. 114. 310.
Moore & Confederation Life Assoc,

re, 382.
Moore v. Public Trustee, 341.
Mordaunt's Off. Assignee v. Gibson,

270, 273.
Morice v. Kerningham, 243.
Morland v. Hales, 185.
Morris v. Bentley, 151. 387, 390.
Morrison, Jones & Taylor, in re,

167.
Moyle v. Gibbs, 390.
Munday v. Prowse. 341. 345.
Munro v. Adams, 341, 345.
Munro v. Didcott, 1.
Murdoch v. Registrar of Titles.

77, 79.

Murphy v. Michell, 49, 75, 78, 81, 83.

Murray, ex p., 36, 60.

Mutual Ass. Soc. v. Registrar-Gen-
eral, 228.

Mutual Life Ass. Co. v. Douglas, 112,
240, 241, 260, 290. And see Doug-
las v. Mutual, etc.

Mc.

McCarthy, in re, 33.
Macarthy v. Kelleher, 274.
McClennan v. Powassan Lumber

Co., 94, 177.
McClure v. Marshall, 274.
McCue v. Smith, 291.
MacCullough & Graham, re, 180,

182, 185.
McDonald v. Rowe, 253.
Macdonald (John) & Co. v. Tew,

106, 136, 287, 312, 351, 356, 368.
McDonnell v. McClymont. 302.
McEacharn v. Colton, 11, 75, 146,

154. 184, 340. 344, 345. 370.
McEllister v. Biggs, 118, 164, 166,

168, 286.
McEvoy, in re, 1.
McFadyen v. Measures, 347.
McGettigan v. Roulstone, 114, 310.
McGrath v. Williams, 58.
McGregor v. Hamstreet, 275.
Macgregor v. Templeton, 303.
McGrory v. Alderdale Estate Co.,

301.
Macindoe v. Wehrle, 111, 146, 168.

194, 286, 340.
Mackechnie v. Bell, 101.
MacKie v. McKie. 108.
McKillop v. Alexander, 185. 188,

189, 309.
McLeish v. Forrest, 245.
McMillan, re, 99.
McMillan v. Gunn, 291, 294.
Macmillan v. Atty.-Gen., 36, 52, 60.
McNaughton, in re, 58, 59.

Nathan, in re, 281, 356.
National Bank v. Barclay, 255.
National Bank v. Diffely, 280. 282.
National Bank v. Morrow, 358. 360.
National Bank of Australasia v.

United Hand-in-Hand Co., 219.

220. 253. 254, 255, 269.
National Mortgage Co. v. Kaiapoi

(Mayor). 248.
National Mortgage & Agency Co. t>.

Maslin, 240.
National Trustees Co., in re. 258.
National Trustees Co. v. Hassett,

133. 136.
Naumberg r. Albertson, 111. 340.
Neild v. Davidson. 303.
Nelson v. Walker. 323.

TABLE OF CASES.

XVll

New Vancouver Coal Co., ex p., 30.

228.
Newberry r. Langan. 20, 305. 306.
Newcastle Build. Co., ex p., 212. 219,

252, 258, 259, 316.
Nicholson r. Bank of New Zealand.

128.
Nicholson v. Drew, 384, 386.
Nicols & Shephard Co. r. Skedanuk,

222 223
Nioa '». Bell, 119. 120, 187. 263. 267.
Nisbet & Pott's Cont., in re, 185.
Noble v. Campbell, 260.
North r. Commr. of Titles. 40.
North of Scotland Canadian Mortg.

Co. r. Thompson. 182.
North Vancouver (City) & Jackson,

re, 115.
North-West Construction Co. v.

Valle, 126, 128, 172, 190.
North-West Telephone Co., re, 3,

213, 286.
North-West Thresher Co. r. Fred-
ericks, 101.

Oakden r. Gibbs, 69, 387, 391.

O'Connor, in re, 381.

O'Connor r. O'Connor, 145.

Oelkers r. Merry. 133, 134, 135, 248.

Oertel v. Hordern, 128.

Ogle v. Aedy, 142.

Oland v. McNeil, 294.

Oliver's Settlement, in re, 38.

O'Neil v. Drinkle. 308.

O'Neill, ex p., 35.

Ontario Industrial Co. r. Lindsay.

147. 387.
Oppenheimer, in re, 48.
Orser v. Colonial Invest. Co.. 260.
Otago Harbour Board v. Spedding.

341, 342.
Overland r. Lenehan, 134.

Paddington (Borough) r. .Marsh.

146.
Palmateer, in re, 354.
Papworth r. Williams, 397.
Park r. Dunn, 36.
Patohell v. Maunsell. 281, 284.
Paten, in re, 367.
Paul, in re, 183.
Pawley & London, &c. Bank, in

re, 377.
Payne v. McDonald, 108, 155.
Payne v. Rex, 230, 235, 273, 274.
Pearson r. O'Brien. 161, 174. 187.

189
Peck V. Sun Life Ass. Co., 110. 120.

267.
Pendlebury c. Colonial Mutual Ass.

Co.. 255.
Pennington, ex p., 33.

Perham v. Kempster, 279.
Perpetual Executors Assoc, p. Hos-

ken, 4, 11, 136, 212, 214, 232, 368.
Perpetual Executors Assoc. v.

Wright. 155.
Perpetual Trustee Co. v. Cowan,

127.
Perrin c Reynolds. 303. 308.
Perry r. Clissold. 34.
Perry r. Morley. 116.
Perry r. Sherlock. 303, 307.
Perry v. Vise, 130, 369.
Petersen, in re, 374.
Peterson r. Wickson. 242.
Phillips r. McLachlan. 320. 327.
Philpott. in re, 367.
Pirn r. Coyle, 45. 114, 115. 310, 360.

363.
Plant v. Rollston. 104.
Pleasance r. Allen, 78. 134.
Plumpton r. Plumpton. 281. 283.
Port Melbourne (Mayor) r. Perman-
ent Savings Build. Soc. 292. 293.
Port Swettenham Rubber Co. v.

Loke Yew. 320, 327.
Pott r. Taranaki Dist. Registrar.

263.
Potter r. Sampson. 91, 254.
Power v. Reeves. 368.
Prefontaine, in re, 375.
Premier Perm. Build. Assoc, in re.

241. 259.
Public Trustee r. Arthur. 33. 126.

162.
Public Trustee r. Morrison. 219.
Public Trustee r. Registrar-General.

103. 389, 390.
Pukaweeka Saw Mills r. Winger,

91, 340.
Purvis, in re, 65, 194, 200.

Queensland Mortg. Co. t\ British &
Australasian Trust Co.. 245.

Queensland Trustees r. Registrar of
Titles. 120, 267, 386. 390.

Quill r. Hall. 127, 129.

Rainford n. Registrar of Titles, 319.

Rakera v. Downs, 248.

Raleigh r. Glover. 108.

Raleigh • . McGrath. 108.

Raymond Land Co. r. Knight Sugar

Co.. 302, 303.
Reeves r. Konschur, 111, 243.
Reg. r. Bourne. 361.
Reg. r. Thompson. 69.
Registrar-General r. Wright, 11. 214,

265. 318.
Registrar of Titles r. Carey. 224,

225, 226.
Registrar of Titles >: Esperance

Land Co., 130. 133. 134. 136. 384.

XV111

TABLE OF CA8E8.

Registrar of Titles v. Spencer (9 C.

L.R.), 395, 396.
Registration of Caveat, in re, 161.

180, 184, 186, 287.
Reid v. Smith, 339, 340.
Reid & Co. v. Minister for Works,

208.
Reliance G. M. Co., in re, 3.
Reschke v. Hensley, 308.
Rex v Price 103.
Rex v. Registrar of Titles (20 C.L.

R.), 227, 344.
Rex v. Registrar of Titles ([1918]

V.L.R.), see Commonwealth v.

Registrar of Titles.
Rex v. Toronto General Trusts

Corp., 230.
Rex v. Tschetter, 373.
Rex v. White, 65, 69.
Richards v. Cadman, 171.
Richards v. Jones, 278.
Richards v. Thompson, 259.
Richardson, in re, 240, 254.
Richardson v. Kearton, 303.
Richmond Local Board v. Victoria

Perm. Build. Soc, 291, 292, 293.
Riddell, re, 243.
Riddiford v. Rex, 35.
Rivers, re, 231, 363.
Roach v. Bickle, 112.
Roaf v. Grand Trunk Pacific Co.,

183
Roberts v. Balfour, 20, 39.
Roberts v. Birkley, 90, 92.
Roberts v. Huntington, 92.
Robertson, in re, 35, 58.
Robertson v. Keith, 76, 77, 78, 87,

128, 358, 360.
Robin Hood Mills v. Harrison, 359.
Robinson, re. 162.
Robinson r. Ford. 127, 140.
Robinson v. Moffatt 361.
Robinson v. Loney, 50.
Robinson r. McCauley, 290, 292, 293,

294.
Robison v. Coal Cliff Co.. 275, 281,

284.
Rodgers v. King. 304.
Rogers v. Hosegood, 185.
Rogers Lumber Co. v. Smith. 182.

287, 288.
Rogers Lumber Yards v. Stuart, 363.
Rollefson Bros. v. Olson. 216. 217.

218. 220.
Rooney, ex p., 265.
Rorison v. Kolosoff, 135.
Rooke v. Errington. 368.
Rosehill Racecourse Co. r. Commr.

of Stamp Duties, 315.
Ross & McNeil, in re, 244.
Ross v. Robinson. 308.
Ross r. Stovall, 128, 294.
Ross r. Victoria Perm. Build. Soc.

274.
Rounsevell v. Ryan, 128.
Rourke r. Schweikert, 134.
Rowe r. Equity Trustees, 308.

Rowsell v. Riddell, 304.
Roxburgh, ex p., 213.
Rumeley Co.. in re, 212, 298.
Russell v. Registrar-General, 119,

145, 202, 384, 386, 389, 390, 395,

396.
Rutherford v. Mitchell, 289, 290,

292, 293, 294.
Rutter, in re, 164, 171.
Ruttle v. Rowe, 362.
Rutu Peehi v. Davy, 91, 202, 337.
Ryan v. Fergerson, 307.

Saddington v. Hackett, 61.

St. Albert Episcopal Corp. v. Shep-

pard, 90.
St. Germain v. Reneault, 337.
Salter, in re, 39, 54, 55.
Saltman v. McColl, 126, 171, 254,

275.
Samy Nathan v. Ramasamy, 113.
Sanday, in re, 58.
Sander v. Twigg, 71, 291, 292, 293.

294.
Sanders v. Wadham, 341, 344, 346.
Sandhurst Build. Soc. v. Gissing, 77,

78 92 93
Sant'leyV Wilde, 274.
Saunders, ex p., 161, 393.
Saunders v. Cabot. 142, 143.
Sawyer & Massey Co. v. Waddell.

287, 361.
Scanlan, in re, 119, 168, 189, 289,

301.
Schlosser v. Colonial Invest. Co.,

363.
Scott v. Alvarez, 55.
Scottish Temperance Life Ass. Co.

v. Vancouver Dist. Registrar, 277.
Seabrook v. McMullan, 111, 201.

215, 221, 248, 338, 339, 340.
Seay v. Summerville Hardware Co.,

358, 361.
Security Trust Co. v. Sayre, 260.
Seecharan v. Jugdeo Maraj. 89. 118,

363.
Setter v. Registrar. 390.
Shanahan, in re, 296.
Shaw, in re, 276.
Shaw v. Bailey, 128.
Shearer v. Wilding. 337. 338. 340.
Sheath v. Hume. 287, 288.
Sheerin v. Sheerin. 118, 127.
Sheffield Corp. v. Barclay, 146. 394.
Sheridan v. Gilles. 50.
Shetler v. Foshay, 107. 140.
Shirley ?•. Tapper, 203. 241.
Shore, in re, 55.
Shore v. Green, 4. 116. 118. 165, 211,

286, 335. 342.
Short v. Graham, 242, 291.
Shotbolt, in re, 14.
Siau Kam Ki v. Tsang Heng Chun.

90. 91.

TABLE OF CASES.

Sievell c. Haultain, 394.

Silva p. Harney, 358.

Simson v. Young, 306.

Sinclair, re, 232.

Sinclair v. Gumpertz, 235.

Skill & Thompson, in re, 94, 125.

313.
Skinner v. Australian & British

Land Co., 304.
Skinner v. Cribb, 219.
Smith, in re (15 Aust. L.T.), 64, 65.
Smith, in re ([1916] 2 Ch.), 26, 115,

167, 286, 287.
Smith (Owen), in re, 7, 51, 369.
Smith r. American Abell Engine

Co., 182, 287.
Smith v. Auckland Dist. Land Reg-
istrar 53.
Smith r. Crawford, 307.
Smith v. Ernst. 60, 100, 304.
Smith p. Essery, 129.
Smith v. National Trust Co., 85, 153.

207, 211, 212. 218, 220, 253, 269.
Smith r. Registrar-General (S.A.

R.), 49, 50. 60. 82, 188.
Smith v. Registrar of Titles (Ja-
maica), 47, 134, 319.
Smith v. Saskatoon (City). 319.

326.
Smith v. Smith, 118.
Sokalingam Chetti p. Mohamed

Maidin, 283.
Sol.-Gen. c Mere Tini, 126. 127.
Solomon «•. Litchfield, 308.
Solomons p. Halloran. 303.
South Australian Mining Co. v.

Mclnnes, 315.
South Melbourne (Mayor) v.

Taylor, 301.
Southern Rhodesia, in re, 18.
Spencer (4 S. R.), in re, 35.
Spencer v. Registrar of Titles
(T19061 A.C.), 150, 389, 390, 391.
395.
Spencer p. Registrar of Titles

([1908] A.C.), 150, 395, 396.
Spencer v. Registrar of Titles

(103 L.T.), 395, 397.
Spokane & Eastern Trust Co., in re.

211, 286.
Stacey p. Hansen. 253.
Staehr v. Federal Lime Co.. 340,

346, 347. 348.
Standard Reliance Mortg. Corp. p.

Stubbs, 209.
Standard Trust Co.. in re, 330.
Staples & Co. v. Corby. 58, 59. 65,

102. 186.
Staples v. Mlackay, 215. 274.
Staughton p. Brown, 75. 76, 77, 78.
Stephen r. Gray. 189.
Stevens r. Williams, 133.
Stevenson v. Brind. 322.
Stockdale r. Hamilton, 61.
Stoddart «•. Wood, 307.
Stone & Haselden p. Registrar of

Titles. 318.
Strelitz Bros. »•. Britnell, 268. 269.

Sullivan v. Recorder of Titles. 344.
Sumner p. Mcintosh. 311. 315, 319.

326.
Sun Life Ass. Co. p. Widmer, 255.
Sutherland r. Spruce Grove Muni-

cip., 96, 133.
Sutton r. Cary, 303. 307.
Swain's Caveat, in re, 187.
Swallow & Ariell, in re, 54.
Swanson p. Getsman, 171.
Sydie p. Saskatchewan & Battle

River Co., 128. 141.
Syndicat Lyonnais r. McGrade, 102.

110. 128. 137. 140. 183, 351.

Taitapu Gold Estates v. Prowse, 26,

129, 131, 368.
Tanner, in re, 50.
Tararna Club, in re. 157. 158. 160,

381.
Tasker p. Carrigan. 127.
Tattley p. Cooper. 111. 340.
Taylor p. Browning, 323.
Taylor p. Land Mortgage Bank. 306.
Taylor v. Wolfe, 268. 273.
Telfer p. Fisher, 341.
Temple r. North Vancouver Corp..

54, 94, 330.
Thomas & McKenzie's Cont. in re,

381.
Thompson r. Berglund, 255.
Thompson r. Boyd, 110.
Thompson v. McDonald. 116. 303,

306.
Thompson p. Yockney. 153, 186.
Thomson v. Finlay, 248.
Tietyens v. Cox, 153, 164, 205, 278.

285, 288.
Timaru (Mayor) v. Hoare, 341.
Tolley & Co. p. Byrne, 112, 142, 203.

208, 281, 283, 284, 390, 393.
Tomlinson v. Cooper, 38.
Tooth & Co. r. Commr. of Stamp

Duties. 315.
Torish r. Orr. 114. 310.
Toronto General Trusts Corp. p.

Rex. 66, 207, 230, 236, 273, 279.
Towne r. Brighouse, 183.
Tranter v. Lord. 92.
Traunweiser v. Johnson. 361.
Tremblay p. Dussault, 188.
Trinidad Asphalt Lake v. Warner,

62.
Trust & Agency Co. p. Markwell,

240.
Trusts & Guarantee Co. r. Rex. 105.
Trusts & Guarantee Co. v. Stephens,

242.
Trust & Loan Co. v. Lawrason. 245.
Tucker & Armour, re. 345, 347.
Tucker v. Armour, 342.
Tuckett t\ Brice. 35. 77, 78, 79. 87.
Tuff (C. & C). Ld. v. Registrar. 365.
Tully v. Carterton (Borough), 43.
318.

TABLE OF CASES.

Turner v. Clark, 107.

Turner v. Myerson, 86, 134, 319.

Tuthill v. Rogers, 35.

IT.

Union Bank v. Harrison, Jones &

Devlin, 373, 380.
Union Bank of Canada v. Boulter

Waugh, Ld., 128, 288, 294.
Union Bank of Canada v. Eugen

258, 285, 288.
Union Bank of Canada v. Lumsden

Milling Co., 363.
Union Supply Co.'s Case, 117, 289.

Van Damme v. Bloxam, 220.
Vance v. Macfarland, 290, 291, 292.
Vaughn, in re, 367.
Vickery v. Strathfield Municipality,

99, 100, 183.
Victorian Farmers' Co., in re, 243.
Voss & Saunders' Cont., in re, 302.

306.
Vousden v. Hopper, 216, 244, 245.

246, 247, 248.

Waddington, ex p., 315.

Waitara v. McGovern, 341.

Walker, in re, 29.

Walker v. Smith, 35, 36.

Wallace v. Potter, 88, 89.

Wallace v. Smart, 126, 289, 290, 291,

293, 294.
Wallbridge v. Steenson, 133.
Wallis, in re, 54.

Walsh, in re, 125, 130, 136, 368, 369.
Walsh v. Lonsdale, 341.
Walters v. Eldridge, 164.
Wasson v. Harker, 252, 275.
Watson v. Registrar of Titles, 318,

360.
Watson v. Royal Perm. Build. Soc.

291, 292, 293.
Watson v. Watson, 304.
Weatherspoon & Baynes, in re, 31,

316.
Weidman v. McClary Manuf. Co.,

361, 363.
Wells v. District Land Registrar.

228, 322.

Wells & Johns v. Registrar-General,

203, 214, 388.
Werner v. Boehm, 366.
West, in re, 71, 349.
West v. Read, 4, 100, 221, 235, 237,

238, 253, 254, 305, 306, 307, 308,

314, 317, 322.
West Australian Ice Co. v. Free-
corn, 78, 140.
Western Trust Co. v. Olson, 162.
Westfall v. Stewart, 115.
Weymouth v. Davis, 198, 257.
White, in re, 100.
White v. Neaylon. 178, 282.
Wildash. in re. 110.
Wilkin v. Deans, 213.
Will6 v. St. John, 176.
Williams v. Box, 98, 118, 153. 259.

260.
Williams v. Papworth. 112. 164.

390, 395, 397.
Wilson v. Bank of New Zealand,

179, 281, 284.
Wilson v. Brightling, 322.
Wilson v. Brown, 257, 284.
Wilson v. Equity Trustees Co.. 77,

93.
Wilson v. Mcintosh, 210.
Wiltse v. Excelsior Life Ins. Co.,

214.
Winter, in re, 65.
Winter Veale & Co., re, 356.
Wisewould, ex p., 316.
Wolfson v. Oldfield, 141, 142.
Woodberry v. Gilbert, 59. 187.
Woods, in re, 22.
Wright, re (2 Nich. & St.), 82, 83.
Wright, in re (12 N.Z.R.). 214.

Yah Leng Hin v. Khoo Poh Ghin,
87.

Yio Then Sang v. Cheng Sing, 91,
121.

Yockney v. Thompson, 186, 207.
287. 289.

Yorkshire Guarantee Corp. v. Ed-
monds, 115, 363.

Zachariah v. Morrow. 78. 83. 121.

127, 128, 131.
Zock v. Clayton. 130. 133.

ABBREVIATIONS

Al. 1906 means The Alberta Registration Statute — Land

Titles Act (1906).
Aust. Torr. Syst. ... " Hogg's Australian Torrens System (1905).
Badg. Dig " Digest of Cases in Badger's Land Transfer

Laws of Australasia (New Zealand, 1888).
Br- & Sn " Brickdale & Sheldon's Land Transfer Acts

r, ^ ■.*-.■. . (2nd Ed- 1905)-

B. C. 1911 The British Columbia registration statute

„„,«,. „ ' —Land Registry Act (1911).

a. ±i. 1914 The British Honduras registration statute

—Land Titles Registry Act (1914).
Bro. & Gl Browning & Glover's Registration of Title

in Ireland (2nd Ed. 1912).
Can. 1906 " The North-West Territories registration

statute (Dominion of Canada) — Land

Titles Act (1906).
Can. Torr. Syst. ... Thorn's Canadian Torrens system (1912).

C. L. R " Commonwealth Law Reports (High Court

* of Australia).

Conv. Prec " Hogg's Conveyancing Precedents for New

South Wales. &c, (1901).

Conv. & Prop. L " Hogg's Conveyancing and Property Law in

New South Wales (1909).

Eng. 1875, 1897 " The English registration statutes — Land

Transfer Act 1875. Land Transfer Act
1897
Eng. 1903— 8 Rules.. " rhe English Land Transfer Rules of 1903.
» 1907, and 1908.

F. M. S 1911 ** The Federated Malay States registration

i statute — Registration of Title Enactment
1911.

Fi. 1876 (1906) ■ The Fiji registration statute— Real Property

Ordinance 1876 (Edition of 1906).

Hutch " Hutchen's Land Transfer Act 1908 (New

Zealand).
I. 1891 " The Irish registration statute— Local Regis-
tration of Title (Ireland) Act. 1891.

I. 1910. O ■ The Irish Registration of Title Orders and

Rules of 1910.
Innes F.M.S. or Innes " Innes' Registration of Title in the Federated

Malay States (1913).
J. 1888 " The Jamaica registration statute — Registra-
tion of Titles Law 1888.
L. Is. 1886 (1914) ... '* The Leeward Islands registration statute —

Title by Registration Act 1886 (1914 Revi-
sion).
" The Manitoba registration statute — Real

Property Act (1913).
" Manitoba Law Reports.
" The New South Wales registration statute —

Real Property Act 1900.
" The New Zealand registration statute-
Land Transfer Act 1915.
" Nicholls & Stops' Tasmanian Law Reports

(2 vols. 1897-1904).
'• The Ontario registration statute — Land

j Titles Act (1914).
" Hogg's Ownership and Incumbrance of Reg-
istered Land (1906).

M». 1913 ....

Man. R

N.S.W. 1900

N.Z. 1915 ...

Nich. & Stops

On. 1914 ...

Own. & Inc.

ABBREVIATIONS.

P. 1913 means The Papua registration statute — Real Pro-
perty Ordinance 1913.

Hogg's Precedents for Registered Land
(1907).

The Queensland registration statutes — Real
Property Act, 1861, Real Property Act
1877.

The Saskatchewan registration statute —
Land Titles Act 1917.

The South Australian registration statute—

■ Real Property Act 1886.

Prec. Reg. Land
Q. 1861, 1877 ...

Sas. 1917
S.A. 1886

Tas. 1862, 1863. 1886.
&c

Tas. R.
Tr. 1902

Tr. & Tob.

Trinidad-Tobago
V. 1915

W. A. 1893

West. R.
W. W. R.

The Tasmanian registration statutes — Real
Property Act (1862, &c).

Tasmanian Law Reports (from 1905).

The Trinidad and Tobago registration stat-
ute— Real Property Ordinance (1902).

Judgments of the Supreme Court of Trini-
dad and Tobago.

Trinidad and Tobago (to save the recurrence
of "and").

The Victorian registration statute — Trans-
fer of Land Act 1915.

The Western Australian registration stat-
ute— Transfer of Land Act 1893.

Western Law Reporter (Canada).

Western Weekly Reports (Canada).

ADDENDA. CORRIGENDA.

Page 83. — Protected tenancies (line 4 et seq.). A lease for five years,
with less than three years to run at the time of initial registration,
is not protected as a lease for "three years and under": First
National Invest. Co. v. Oddson, [1919] 3 W. W. R. 591 (Man.).

Pages 102, 183. — Granby Consol. M. Co. v. Esquimault, dc., Ry. is now
reported as Esquimau, dc., Ry. v. Granby Consol. M. Co., [1920]
A. C. 172.

Page 185. — The exclusive right of mining in and under the land for 99
years is an interest that can be protected by caveat: In re Gam-
boola. dc, Co. (1919), 19 S. R. (N.S.W.) 227.

Pages 228, 329. — Hudson's Bay Ins. Co. v. Creelman is now reported as
Creelman v. Hudson's Bay Ins. Co.. [1920] A. C. 194.

Page 260. — Isman v. Sinnott (note 44), and Security Trust Co. v.
Sayre (note 49), have now been reversed on appeal in the pro-
vincial Courts: see [1919] 3 W. W. R. 719, 634. In the former case
it has now been held that the remedies of a mortgagee under a
third mortgage are not affected by his foreclosing under a first
mortgage; in the latter that the purchase of the mortgaged land
by the mortgagee has not the effect of foreclosure.

Page 270. — On a verbal lease for one year it is no defence in an action
for the rent (defendant not having taken possession) that a mort-
gagee of the land has not consented to the lease: Deniher v.
Fitzgerald (1919), 19 S. R. (N.S.W.) 260.

Page 308. — The rule in Flureau v. Thornhill and Bain v. Fothergill has
been applied to registered land in Alberta: Krezul v. Anglo-Cana-
dian Lands. [1919] 3 W. W. R. 747.

Page 338, note 26. — A lease by mortgagee in possession to the owner of
the land was held to have become merged in the mortgagor's own
freehold: Xichol v. Pedlar. [1919] 3 W. W. R. 712 (Sas.).

Registration oi Title to Land

CHAPTER I.— INTRODUCTORY.

SECTION* 1. — THE MEANING OF REGISTRATION OF TITLE.

Jfegistr&jion^ as applied to land, may be defined as a system
of recording in a public office from time]t^time_transactions villi
land, 'or the mere tact of ownership of some interest in land.1
Registers, or registries, constituted for these purposes, or either
of them, are called by various names — such as land registers, deed
or instrument registers, registers of sasines (in Scotland), regis-
ters of title, &c. But apparently every system of registration in
the Empire, that is concerned with keeping up a record of either
transactions with land or its ownership, can be classed as deed
registration or title registration. Bv deed registration — or regis-
tration of deeds — is^ meant primarily a system undpr wb^ch, instni-
ments are recorded merelv as such, and not with special reference
to the land they purport to affect By title registration — or regis-
tration of title — is meant primarily a system under which a record
is made of the title to some particular land as vested in some
particular person for the time l>eing, or of instruments as affecting
some particular land. The sain.- system, however, may be one for
both registration of deeds and registration of title.

Although, apart from a combination of deed and title regis-
tration in one, there seems to be no third system of registra-
tion as above defined, statutory provision is made in some juris-
dictions for obtaining a judicial declaration of title and placing
this formally on record by registering at a deed or title registry.2
But this hardly constitutes what is generally understood by a
system of registration, since the only object of such statutes is to
record the fact of indisputable ownership once for all, without
providing for future transactions. The judicial declaration of
title, amounting as it does to a warranty of the title, is however
an important feature in systems of registration of title. In fact,

1 The general objects of registration are stated in Munro v. Didcott
[1911] A. C. 140, 149.

2 In England— Declaration of Title Act, 1862 (c. 67) ; Ontario— Quiet-
ing Titles Act (R. S. 1914. c. 123) : British Columbia — Quieting Titles Act
(R. S. 1911. c. 192) : New Brunswick— Land Titles Act (1914, c. 22) ;
Falkland Islands — Titles to Land Ordinance 1904 (No. 6).

B.TX. — 1

2 INTRODUCTORY. [Ch. I.

registration of title may be said to take over to itself the promi-
nent features of both deed registration and judicial declaration of
title.

Registration, then, being divided into title and deed registra-
tion, it becomes necessary in the case of every system to decide to
which class it belongs. The two classes shade off into each other,
and it is a matter of some difficulty to distinguish with complete
accuracy between registration of title and registration of deeds.
Any dividing line between the two must be to some extent arbi-
trary, and. each division will contain systems closely resembling
systems on the other side of the line. In distinguishing between
title and deed registration systems' in other books, the necessity
for an accurate dividing line has not 'been so pressing, and sufficient
attention has not been paid to the importance, on the ground of
convenience, of including in title registration only such systems
as contain some provision for State warranty of title.3 And since
the mere registering or recording a judicial declaration of title
without provision for future transactions is also excluded from
registration of title as a system, registration of title proper comes
to be more than a mere system of registration. It is essentially
a system of conveyancing based on registration.

Of the various registration systems in force throughout the
British Empire, twenty-eight are for the purpose of this book
classed as registration of title. These twenty-eight systems will
be enumerated later on. It is only necessary here to refer to
some of their features in order to indicate the principle on which
the selection has been made.

Registration of title, then, is in this book only predicated of
systems of" registration which conform more or less closely to the
following four characteristics:

1. The land is initially placed on the register as a unit of
property.

2. Transactions are registered with reference to the land
itself, and not merely as instruments executed by the owner.

3. Registration of transactions is essential to their validity.

4. Registration, initial or of subsequent transactions, acts
in some degree as a warranty of title in the person registered
as owner, and as a bar to adverse claims.

\ *

* See Aust. Torr. Syst., 3, 4 ; Own. & Inc., 3, and preface. According
to the more convenient classification adopted in this book, the Scottish and
South African systems are ranked as systems of deed registration ; this is
referred to in the text later on.

Sect. 1] MEANING OF REGISTRATION OF TITLE. 3

1. Placing land on the register as a unit of property means
for practical purposes that the land must be identified as a par-
ticular parcel.4 It does not necessarily follow that the area or
boundaries cannot subsequently be corrected.5 In practice initial
or first registration is usually made, if not in a separate registry
office, at least in a new set of books, and if title and deed registra-
tion are carried on by the same officials or in the same office, the
two systems are usually carried on separately. However, in Brit-
ish Columbia a registry of deeds forms part of the registration
machinery, though the system is on the whole distinctly one of
registration of title.8 A system which is excluded, though near
the line, is that of Cyprus; land there is compulsorily placed on
the register, and in all other respects conforms to the definition
of registration of title, except that registration has no statutory
effect in barring adverse claims.7

2. It is, in principle, the title to the land and not merely the
instrument between the parties that is registered ; hence the neces-
sity for better identification of the property dealt with, and for
greater discretionary powers in the registrar with respect to ac-
cepting instruments or transactions for registration.8 Some deed
registration systems, however, approximate closely to title regis-
tration in the procedure for registering transactions, by rendering
search against particular parcels of land more easy, and by con-
ferring greater ptwrers on the registrar. The " search sheet *"
system in Scotland brings the Scottish deed registration very close
to registration of title with regard to facility of search.9 The case
of Cyprus (supra) affords an illustration of extended powers in
the registrar.

3. Though not more important than the two characteristic.^
already referred to, the necessity for registration as part of even
completely valid transaction is a much more prominent feature o!

•As in In re Lillis (1899) 4 Terr. R. 300.

•Illustrations are: Burden V. North Alberta Registrar (1913) 25
West. R. 460; On. 1914, ss. 24 (7), 98 (1).

•Canadian Birkbeck Invest. Co. v. Ryder (1905), 12 B. C. R. 92.
2 West. R. 158; Howard v. Miller [1915] A. C. 318.

T Titles Registration Law 1885 (No. 7), s. 10 is: " No registration under
the provisions of this law shall operate as a bar to the legal rights of any
person in respect of the property registered." And see Land Transfer
(Amendment) Law 1890 (No. 19), ss. 1, 2 and 6 of which in particular
contain certain provisions proper to title registration systems.

• Re North-West Telephone Co. (1909) 12 West. R. 300; In re Reliance
G. M. Co. (1908) 13 B. C. R. 482.

•Report of Royal Commission on Registration of Title in Scotland.
1910 (Cd. 5316, 5357).

4 INTRODUCTORY. [Ch. l

title registration systems.10 It is perhaps the feature most fre-
quently insisted on when title and deed registration are con-
trasted inter se.11 This necessity for registration of transactions
or instruments is. however, a part of several systems that must for
other reasons be classed as deed registration systems. Examples
are: Scotland, South Africa,12 Labuan,13 and also Cyprus (supra).
4. The statutory warranty nf -l-i tip, wfrioh makes' the registra-
tion of each successive owner a bar to adverse claims, is the fea-
ture in which title registration diffe^g_mo^,jr^m__deed registration.
JN'o system of deed registration enables a purchaser to get a good
title merely by succeeding his vendor on the register, or saves
the necessity for investigation of prior title. In the case of the
Falkland Islands 14 and New Brunswick 15 some approach is made
to this, by provisions in registry statutes for a judicial decree of
declaration of title ; but the decree is merely registered at the deed?
registry, and no provision is made for the protection of future
owners, so that these enactments are rather on the footing of the
English, Ontario, and British Columbia Declaration of Title or
Quieting Title Acts 10 already referred to, and introduce no sys-
tem of title registration. In some systems more than one kind
of warranty of title is provided for. But even the weakest war-
ranty implied by registration is founded on some investigation of
the right of the applicant to be registered, though this investigation
may be slight or even perfunctory.17 In deed registration systems,
as a rule, any instrument proffered for registration is accepted
without enquiry as to its contents and effect, and the fact of regis-
tration carries with it no implication of title prior to registration.
The system of Cyprus has already been referred to as one which
is excluded from systems of registration of title by reason of its
affording no bar to adverse claims. Other similar systems of

10 Perpetual Executors Assoc, v. Hosken (1912) 14 C. L. R. 286:
Crowley v. Templeton (1914) 17 C. L. R. 457; West v. Read (1913) 13
S. R. (N. S. W.) 575; Shore v. Green (1890) 6 Man. R. 322.

11 Bishop v. Hunt (1906) 26 N. Z, R. 950.

12 Crotvly v. Bergtheil [1899] A. C. 374.

"Ordinance No. 7 of 1849.

"Titles to Land Ordinance 1904 (No. 6). This is the deed registry
statute itself.

"Land Titles Act (1914, c. 22). This is closely modelled on part of
the Nova Scotia Act of 1903-4, but goes no further than providing for a
judicial decree and its registration in a deeds registry.

18 In British Columbia some of the provisions of the Quieting Titles
Act are incorporated in the registration statute : see B. C. 1911, s. 116 C.

"Hudson's Bay Co. v. Reams (1896) 4 B. C. R. 536; Eng. 1875, s. 6;
On. 1914, s. 11.

Sect. 2] SYSTEMS AND JURISDICTIONS. 5

local and partial application are to be found in Xew Zealand 1S
with respect to native land, and in the Straits Settlement of
Malacca with respect to land held under local native custom.18

SECTION" 2. — THE SEPARATE SYSTEMS AND JURISDICTIONS.

There are, throughout the British Empire, twenty-eight sepa-
rate systems of registration of title, each based on a separate set of
statutes, and covering thirty-one territorial divisions, three systems
being in force in more than one territorial division. There is no
precisely accurate and quite convenient word by which to designate
these territorial divisions, and the word "jurisdiction " must be
used for want of a better. There are, then, twenty-eight systems
and thirty-one jurisdictions, and these may Ik? divided into five
groups — partly geographical and partly political — as follows:

UNITED KINGDOM GROUP.

1. England.

2. Ireland (legislation of United Kingdom).

AUSTRALASIAN GROUP.

The six States- and three Territories of the Commonwealth of
Australia, with Xew Zealand and Fiji, viz.:
3. Xew South Wales.
1. Queensland.

5. South Australia.

6. Tasmania

7. Victoria.

8. Western Australia.

9. Papua (Territory of the Commonwealth).

9a. Northern Territory of Australia (legislation of South

Australia adopted).
9b. Territory for the Seat of Government (legislation of Xew
South AVales adopted).

10. The Dominion of Xew Zealand.

11. The Crown Colony of Fiji.

M Aust Torr. Syst. 23, as to Native Land Acts, now replaced by Native
Land Act, 1909.

"Joyah bin Kachi v. Sakria (18S8) 4 Kyshe Str. Sett. 413.

6 INTRODUCTORY. [Ch. i.

CANADIAN GEOUP.

Six Provinces and the Territories of the Dominion of Can-
ada, viz.:

12. Ontario.

13. British Columbia.
34. Manitoba.
]5. Saskatchewan.

Jjji Alberta.

17. North-West Territories (legislation of Dominion of Can-
ada).

17a. Yukon District (legislation of Dominion as in North-
West Territories).

18. Nova Scotia.

CROWN COLONIES GROUP (INCLUDING ONE PROTECTORATE).

19. British Honduras.

20. Trinidad-Tobago.

21. Jamaica.

22. Leeward Islands.

23. Federated Malay States.

24. Ceylon.

25. The Gambia.

PROTECTORATE GROUP.

26. East Africa.

27. Uganda.

28. Sudan.

Taking each of the five groups, separately, a list of the principal
statutes is here given, with some observations on the features of
each group as a whole, and on the case law and text-books applicable
to each. The list of statutes is not exhaustive, since there are,
scattered through the statute books of all the jurisdictions, Acts
and sections of Acts relating indirectly, or in matters of detail or
practice, to land held under registered title. These subsidiary Acts
and sections can usually be found by referring to text-books or
other local sources. In some instances statutory rules are included
in the list of statutes.

As will be pointed out at the end of the present section, only
twenty-two of these systems and jurisdictions are treated of in
detail subsequently, six systems being omitted as not of sufficient
importance to require more than occasional reference.

Sect. 2] SYSTEMS AND JURISDICTIONS. 7

I. United Kingdom Group.
England:

Land Transfer Act 1875 (38 & 39 Vict. c. 87).1

Land Registry (Middlesex Deeds) Act 1891 (54 & 55 Vict. c.

64).
Land Transfer Act 1897 (60 & Gl Vict c. 65).
Land Transfer Rules 1903, 1907, 1908, printed in consolidated
form (1912).

Ireland:

Local Registration of Title (Ireland) Act 1891 (54 & 55 Vict.

c. 66).
An Act of 1908 (8 Edw. 7, c. 58) has expired, and an Act

of 1909 (9 Edw. 7, c. 36) is of local importance only.
Orders and Rules 1 Sept. 1910.

The English and Irish statutes, though enacted by the same
legislature, differ in many respects from each other. The Irish
statute omits the enactments relating to the "possessory title"
of the English statutes, but contains a provision which permits of
initial registration without complete investigation of title.2 On
the other hand, the prescribed statutory instruments are (as in
England) required to be under seal ; in most other jurisdictions
sealing is not required. The Irish system approximates more than
the English to a system of deed registration,8 therein resembling
somewhat the system in British Columbia. Both English and1 Irish
statutes make express provision for assurances by unregistered
instruments, a feature existing also in Ontario, where the English
statutes have been adopted.

tf Little has yet been done in the way of developing the system in
England by means of case law./ More has been done in Ireland,
but the number of reported cases is still small compared with the
number in some other groups. There are, however, several deci-
sions of the Irish courts on the effect of unregistered instruments.
In England there are only two reported cases where questions of
first rate importance have been raised.4 The view taken by the
Court of Appeal in those cases of the nature of a registered

lThe Acts of 1875 and 1807. with the Rules of 1903, are printed
in a consolidated form in Own. & Inc. 276 et seq.

1 1. 1891. s. 29. See In re Keogh d Kettle [1896] 1 I. R. 285 ; In re
Owen Smith [1917] 1 I. R. 170.

*I. 1910 O. 4, r. 20: In re McEvoy [1917] 1 I. R. 168.

* Capital d Counties Bank v. Rhodes [1903] 1 Ch. 631: Atty.-Gen. v.
Odell [1906] 2 Ch. 47. Criticism of the former will be found in Own. &
Inc. 91, 92. 121.

8 INTRODUCTORY. [Ch.i.

proprietor's interest is one that would hardly be adopted in any
other jurisdiction, and must seriously hamper the English system
in its juridical development. It has been judicially recognized in
Ireland that the new system is intended to cheapen and facilitate
land ownership and conveyancing in accordance with the needs of
a peasant proprietary.5

Text-books dealing specially with the English system are:

Brickdale & Sheldon's Land Transfer Acts (2nd Ed. 1905).
Williams' Vendor and Purchaser (2nd Ed. 1911), chapter XX.
Hogg's Ownership and Incumbrance of Eegistered Land-

(1906).
Hogg's Precedents for Eegistered Land (1907).
And with the Irish system:
Browning and Glover's Registration of Title in Ireland (2nd

Ed. 1912).

II. Australasian Group.
New South Wales:

Real Property Act 1900 (No. 25).

Real Property and Conveyancing (Amendment) Act 1901 (No.

68).6
Centenary Park Sale (Conveyancing) Act 1905 (No. 6).
Darling Harbour Land Titles Act 1907 (No. 10).
Sydney Harbour Trust Land Titles Act 1909 (No. 7).
Registration of Deeds Act 1897 (No. 22), s. 6 (5).7
These statutes are also (so far as applicable) in force in the
Territory for the Seat of Government.8

Queensland :9

Real Property Act 1861 (25 Vict. No. 14).

Real Property Act 1877 (41 Vict. No. 18).

Registration of Titles Act 1884 (48 Vict. No. 4).

Undue Subdivision of Land Prevention Act 1888 (49 Vict.

No. 15).
Real Property (Local Registries) Act 1887 (51 Vict. No. 3).
'Settled Land Act 1886 (50 Vict. No. 13), ss. 69, 70.

5 In re Keogh & Kettle [1896] 1 I. R. 285.

* These two statutes are printed in Aust. Torr. Syst. 87 et seq.

7 This enactment is referred to in Aust. Torr. Syst. 756.

8 Seat of Government Acceptance Act 1909 (No. 23, Commonwealth), s.
6; Seat of Government (Administration) Act 1910 (No. 25, Common-
wealth), s. 4.

9 All the statutes here mentioned are printed in Aust. Torr. Syst. 171
et seq.

Sect. 2] SYSTEMS AND JURISDICTIONS. 9

South Australia:10

Real Property Act 1886 (Xo. 380).
Real Property Amendment Act 1887 (Xo. 403).
Real Property Amendment Act 1893 (Xo. 569).
These statutes are also in force in the Xorthern Territory of
Australia.11

Tasmania:12

Real Property Act (1862, 25 A'ict. Xo. 16).

Real Property Act No. 2 (1863, 26 Yict. Sess. 2, Xo. 1).

Real Property Act Xo. 3 (1867, 31 Yict. Xo. 17).

Real Property Act Xo. 4 (1878, 42 Yict. Xo. 9).

Real Property Act Xo. 5 (1886, 50 Yict. Xo. 8).

Real Property Act Xo. 71S (1893, 57 Yict. Xo. 5).

Victoria :

Transfer of Land Act 1915 (Xo. 2740). 14

Conveyancing Act 1915 (Xo. 2633), ss. 14-26, 32.

Real Property Act 1915 (Xo. 2719), ss. 150-156," 173-175.

Execution of Instruments Act 1915 (Xo. 2757) — a temporary

war Act.
Transfer of Land Act 1916 (Xo. 2849).

Western Australia:

Transfer of Land Act 1893 (56 Vict. Xo. 14).
Settled Land Act 1892 (55 Vict. Xo. 10), ss. 69, 70.
Transfer of Land Act 1893 Amendment Act 1896 (60 Vict.

No. 22).
Transfer of Land Act Amendment Act 1902 (2 Edw. 7, Xo.

10).16
Transfer of Land Act Amendment Act 1909 (Xo. 54).
Transfer of Land Act Amendment Act 1911 (Xo. 26).
Execution of Instruments Act 1916 (Xo. 8) — a temporary war

Act.

10 All the statutes here mentioned are printed in Aust. Torr. Syst, 332
et seq.

"Northern Territory Acceptance Act 1910 (No. 20, Commonwealth),
s. 7; Northern Territory (Administration) Act 1910 (No. 27, Common-
wealth), s. 5.

"All the statutes here mentioned are printed in Aust. Torr. Syst. 418
et seq.

u No. 6 in the series is repealed : see Aust. Torr. Syst. 64, 488.

"This statute (a consolidation) replaces (amongst others) the three
Acts printed in Aust. Torr. Syst. 497 et seq., 598 et seq., and 604.

18 These sections (part of a consolidating statute) replace the sections
printed in Aust. Torr. Syst. 595 et seq.

14 These four statutes are printed in Aust. Torr. Syst. 605 et seq.

10 INTRODUCTORY. [Ch.i.

Papua :

Eeal Property Ordinance 1913 (No. 13 ).17

Eeal Property Ordinance 1914 (No. 13).

For the Northern Territory of Australia, and the Territory for

the 'Seat of Government, see 'South Australia and New

South Wales, supra.

New Zealand:

Land Transfer Act 1915 (No. 35).18
Regulations 22nd Jan. 1914.

Fiji:

Eeal Property Ordinance 1876 (No. 7, Ed. 1906 ).19

The only one of the nine systems in this group that differs very
considerably from the others is that of Fiji. The Fiji statute
bears internal evidence of having been drafted with some regard
to Scottish law.20 The chief difference is that the statute contains
no provision for bringing land under the system otherwise than
upon a grant from the Crown, and it has therefore not been
thought necessary to make provision for indemnity — by means of
an assurance fund or otherwise — against loss through wrongful
registration. The systems of this group were the first to be known
collectively as the Torrens system, being derived more or less
directly from the South Australian Act of 1857 of which Sir
Eobert Torrens was the promoter.21 The points of real difference
among these nine systems are few. Perhaps the most important
are those relating to the effect of a registered title as against adverse
possession, and to the foreclosure of mortgages.

Every one of the jurisdictions of this group has, as the founda-
tion of its jurisprudence, the English common law and rules of

17 This statute, substantially a consolidation of the Queensland Acts
(but with some amendments) replaces the British New Guinea Ordinance
printed in Aust. Torr. Syst. 259. The Territory is now under the control
of the Commonwealth and re-named Papua: Papua Act 1905 (No. 9, Com-
monwealth), commencing by proclamation 1st Sept. 1906.

"This statute (a consolidation) replaces an Act of 1908 (amended),
Avhich itself replaced the Acts printed in Aust. Torr. Syst. 261 et seq. Tbe
present statute is actually an appendix to the Land Transfer Acts Compila-
tion Act 1915, which contains some provisions as to its construction. The
statute itself, the Compilation Act, and the Regulations of 1914, are issued
in a convenient form, with some further Regulations and an Index, by
the New Zealand Government Printer.

"This statute (a consolidation) replaces the Ordinances printed in
Aust. Torr. Syst. 668 et seq.

20 Aust. Torr. Syst. 668; Parliamentary Return of 1881 on Registra-
tion in the Australian colonies.

"Aust. Torr. Syst. 20.

Sect. 2] SYSTEMS AND JURISDICTIONS. n

equity. This is important in considering the question of the extent
to which the registration statutes have indirectly affected rights of
property, and is particularly to be recognized in view of the fact
that in some of the jurisdictions in other groups the system of
registration of title has been erected upon a foundation of jurispru-
dence which is not purely English.

The amount of case law developed by litigation is considerable.
This is due largely to imperfect draftmanship of the statutes, which
has made it often extremely difficult to discover with precision how
much alteration was actually effected in the existing rules of con-
veyancing and real property law. A more conservative view than
formerly is now taken of the degree of change effected,22 but it is
still found difficult both to interpret the actual language of the
statutes, and to discover to what extent the reform in the procedure
of conveyancing has made any change in substantive rights in land
as recognized by ordinary English law.

The Australasian group differs from the United Kingdom group
in avoiding the use of deeds, so that the statutory instrument usu-
ally has no operation apart from the effect conferred on it by the
statutes. Another point of difference is the absence of the express
permission to create interests in land by ordinary conveyances, &c,
unregistered. The " possessory title " of the English system also
is unknown in the Australasian group.

Tfre Australian system — and this will apply to other systems,
such as that in force in some parts of Canada, based upon it— (is
intended to simplify and facilitate transactions with land, as well
as to give greater security of title.23 J The rule — made statutory in
some jurisdictions24 — that statutes are in the nature of remedial
legislation, and are to be given a liberal construction accordingly,
seems to have been acted .on generally with respect to the registra-
tion statutes.25

The following text books deal with the systems of this group
as a whole :

Badger's Land Transfer Laws of Australasia (1888).

"In re Martin [19001 S. A. R. 69. affd. by Privy Council sub nom.
McEacharn v. Colton [19021 A. C. 104 ; Barry v. Heider (1914), 19 C. L. R.
197.

"Perpetual Executors Assoc, v. Hosken (1912) 14 C. L. R. 286: Rea.-
Gen. v. Wright (1917) 23 C. L. R. 214; Fels v. Knowles (1906) 26
N. Z. R. 604, 620.

*• For instance : South Australia — Acts Interpretation Act 1915 (No.
1215), s. 22; New Zealand— Acts Interpretation Act 1908 (No. 1), s. 6 (i).

"The statutory rule was relied on in Reg.-Gen. v. Wright, supra.

12 INTRODUCTORY. [Ch. I.

Power, Groom and Graham's Torrens Australasian Digest

(1899).
Hogg's Australian Torrens System (1905).

The following deal with individual systems:

New South Wales — Canaway's Eeal Property Act (1902).

Queensland — Power, Groom and Graham's Eeal Property Acts
(1902).

Victoria — Duffy and Eagleson's Transfer of Land Act (1895).

Guest's Transfer of Land Act (1895).

The official edition of the statutes in Victoria contains in foot-
notes references to cases decided, in the Supreme Court of
Victoria and (on appeal from that Court) in the High
Court of Australia, upon each section of the statutes.

New Zealand — Hutchen's Land Transfer Act (1910).

III. Canadian Group.
Ontario :

Land Titles Act (B. S. 1914, c. 126).

Amending Act (1914), 4 Geo. 5, c. 24.

Statute Law Amendment Act 1915 (c. 20), s. 14.

Amending Act (1917), 7 Geo. 5, s. 31.

Land Titles Amendment Act 1918 (c. 28).

Rules 26 Sept. 1911.26

Town Sites Act (E. S. 1914, c. 34).

Short Forms of Mortgages Act (E. S. 1914, c. 117).

Execution Act (B, iS. 1914, c. 80), s. 10.

Eegistry Act (E. S. 1914, c. 124), ss. 3, 4, 74, 94.

British Columbia:

Land Eegistry Act (E. S. 1911, c. 127).

Land Eegistry Act Amendment Act 1912 (c. 15).

1913 (c. 36).

1914 (c. 43 ).27

1915 (c. 33).
" 1916 (c. 32).

1917 (c. 33).

1918 (c. 41).

24 These Rules, made under the repealing Act of 1911, appear to be
still in force ; they are issued with the official copy of the Land Titles Act
1911 by the King's Printer at Toronto.

27 The first four of these statutes are printed and issued officially in a
consolidated form.

Sect. 2] SYSTEMS AND JURISDICTIONS. 13

Manitoba:

Real Property Act (R. S. 1913, c. lU).28
Amending Act, (1914), 4 Geo. 5, c. 90.

(1915), 5 Geo. 5, c. 59.

(1917), 7 Geo. 5, c. 72.

(1919), 9 Geo. 5, c. 85.

Saskatchewan:

Land Titles Act 1917 (Sess. 2, c. 18). 20
Amending Act (1918-19), c. 19.

Alberta:

Land Titles Act (190G), c. 24.
Amending Act (1915), c. 3.
Amending Acts (1919), cc. 12, 37.

The following sections of Statute Law Amendment Acts —

1907, c. 5, s. 19.

1908, c. 20, b. 15.

1909, c. 4, s. 1 1 ; c. 5, s. 9.
1910 (Sess. 2), c. 2, s. 12.
1911-12, c. 4, s. 15.80

1913, c. 9, s. 13; (Sess. 2) c. 2, s. 9.

1914, c. 2, s. 9.

1915, c. 2, s. 25.

1916, c. 3, s. 15.

1917, c. 3, s. 40.

Xortli-W'est Territories (Dominion of Canada):
Land Titles Act (R. S. Canada 1900, c. 110).
Amending Act (1908), 7 & 8 Edw. 7, c. 41.

(1910), 9 & 10. Edw. 7, c. 36.
Apportionment of Assurance Fund, Territories, Saskatchewan,

Alberta (1908), 7 & 8 Edw. 7, c. 42.
These statutes are also in force in the Yukon District.

Nova Scotia:31

Land Titles Act (1903-4), 3 & 4 Edw. 7, c. 47.

18 This statute (a consolidation) replaces the Acts printed in a con-
solidated form in Can. Torr. Syst. 404 et seq.

"This statute (a consolidation) replaces the Acts printed in a con-
solidated form in Can. Torr. Syst. 465 et seq.

M The statute, as amended up to this point, is printed in a consolidated
form in Can. Torr. Syst. 551 et seq.

"Nova Scotia is one of the six jurisdictions omitted from detailed
consideration. The system has only been brought into operation in a few
counties, and seems to have made little progress. The statute is an
adaptation oi parts of the Ontario statute. See an article on " Uniformity
in Registration of Title Law," Can. Law Times xxxvii. 374. 378 (1917).

14 INTRODUCTORY. [Ch.i.

The Canadian group is not as homogeneous as the Australasian.
The Ontario and Nova Scotia statutes are modelled to a great
extent on the English statutes. The Ontario system is contained
in statutory Rules in addition to the Acts, as in both systems of the
United Kingdom, and the express permission to create interests by
unregistered disposition is also adopted. Both Ontario and Nova
Scotia also provide for the "possessory" title. On the other hand
sealing is made unnecessary, the Australasian model being here fol-
lowed in preference to that of the United Kingdom, and there are
other borrowings from the Australasian statutes.

British Columbia has a system peculiar to itself, one feature of
which is that deed and title registration are combined. Under a
different nomenclature the system contains the English feature of
"possessory" title, thus resembling Ontario and Nova Scotia, and
differing from the Australasian group, which in some other respects
it closely resembles.32 Though the statutory form of transfer on
conveyance is under seal, sealing is not essential for a charge or a
transfer, but the requirement of registration for all transactions is
stringent.33 There is a tendency in the direction of Scottish law
similar to that in the Fiji statute.

(In Manitoba, Saskatchewan, Alberta, and the North-West Ter-
ritories, the Australasian"model~ilaS been closely followed, and the
term " Torrens " is applied as commonly rothe statutes of these
four jurisdictions as to me Australasian statutes. One point on
which the latter have not been so closely copied is as to the powers
of mortgagees and the foreclosure of mortgages. There is the same
diversity as in the Australasian group in regard to the relation of
the registered title and adverse possession. Among minor points of
difference, some of the 'Canadian statutes authorize the registrar to
" grant " a certificate of title, in the sense in which " issue " is used
in Australian statutes; the form of transfer also in some jurisdic-
tions need not contain any such note of existing incumbrances as
is provided for in Australian statutes.

yS English law, just as in Australasia, is the foundation of the
^jurisprudence of all these jurisdictions.

As in Australasia, the case law produced by litigation under the
statutes of Manitoba, Saskatchewan, Alberta, and North-West Ter-
ritories, has been considerable. The number of reported cases on
the British Columbia statutes is much smaller, and the number in

32 The British Columbia system is of nearly the same age as the
Australian, but it developed independently of the latter. An historical
account (not quite accurate in its reference to Australia) is given in
In re Shotbolt (1888) 1 B. C. R. pt. II. 337. *

8SB. C. 1911, ss. 51, 104-106, as amended; Form L.

Sect. 2] SYSTEMS AND JURISDICTIONS. 15

Ontario still smaller again. There appear to be no Xova Scotia
cases at all. The interpretation placed on the English statutes,
with respect to the juridical position of the registered owner, does
not appear to have been yet adopted in Ontario or Xova Scotia.

The four systems of Manitoba, Saskatchewan, Alberta, and the
Xorth-West Territories have been dealt with in Thorn's Canadian
Torrens System (1912). There appear to be no text-books deal-
ing specially with the Ontario or British Columbia systems.

IV. Crown Colonies Group (including one Protectorate).

British Honduras:

Land Titles Kegistry Act (R. S. 1914, c. 179).

Trinidad-Tobago :

Real Property Ordinance (1902, Xo. 60).

Real Property (Amendment) Ordinance 1905 (Xo. 21).

Real Property Ordinance 1908 (Xo. 49).

Real Property (Amendment) Ordinance 1913 (Xo. 19).

Powers of Attorney Ordinance 1914 (Xo. 1).

Real Property (Amendment) Ordinance 1914 (Xo. 3).

Real Property (Amendment) Ordinance 1916 (Xo. 35).

Jamaica:

Registration of Titles Law 1888 (Law 21).

Registration of Titles Law 1888 Amendment Law 1888 (Law

31).
Registration of Titles Law 1888 Further Amendment Law 1889

(Law 20).
Registration of Titles Law 1888 Further Amendment Law 1894

(Law 14).
Registration of Titles Amendment Law 1900 (Law 5).
Registration of Titles Law Amendment Law 1903 (Law 10).
Hurricane Loans Law 1903 (Law 47), s. 8.
Registration of Titles Law Further Amendment Law 1906

(Law 6).
Registration of Titles Law 1888 Amendment Law 1909 (Law

22).
Registration of Titles Law 1888 Amendment Law 1910 (Law

33).

Leeward Islands:

Title by Registration Act 1886 (Xo. 1, 1914 Revision).
Hurricane Loan Title by Registration Amendment Act 1900
(Xo. 3).

16 INTRODUCTORY. [Ch. I.

Federated Malay States:

Registration of Titles Enactment 1911 (No. 13). 3i

Registration of Titles Enactment 1911 Amendment Enactment
1913 (No. 16).
Ceylon :35

Land Registration Ordinance 1907 (No. 3).
The Gambia:™

Land Transfer Ordinance 1904 (No. 4).

The systems of this group differ considerably from each other.
The Federated Malay States is a Protectorate, and has adapted its
registration system from the Fiji statutes. The basis of general
law in the federation is for the most part Mohamedan, and English
law is only in force so far as it is expressly adopted by local legisla-
tion.37 In adopting the Fiji statutes all reference to " fee simple "
is excluded from the Malay statute.

In Ceylon the basis of general law is the Roman-Dutch law. In
the other jurisdictions English law prevails.

One feature of the Ceylon statutes is found also in British
Honduras; the warranty of title on initial registration is consti-
tuted by means of a short time limit after which adverse claims
are barred in favour of purchasers. No provision is made for
statutory forms of instruments. In Ceylon a system of deed re-
gistration forms part of the title registration system, somewhat as
in British Columbia. The British Honduras statute is altogether
less elaborate than others, and the system as compared with some
is merely rudimentary. The original statute came into force in
the same year (1858) that the Torrens system in Australia began
its operation.38

34 This federal statute has consolidated and replaced the statutes of
the four separate States, these four statutes being practically identical in
their provisions. References in two important Privy Council cases, and in
Innes' Reg. of Title, are to one or other of the State statutes : see Loke
Yew v. Port Swettenham Rubber Co. [1913] A. C. 491 ; Haji Abdul Rah-
man v. Mohamed Hassan [1917] A. C. 209.

35 Ceylon is one of the six omitted jurisdictions. Registration of Title
seems to have made little progress. The statute cited is a consolidating
and amending one, intended to replace Ordinances of 1877 and 1889, but
not (up to March, 1915) put into force. In the 1913 Edition of the Ceylon
statutes the Ordinances intended to be repealed are printed as well as the
Ordinances of 1907.

38 The Gambia is one of the six omitted jurisdictions. The statute is
an adaptation (in a consolidated form) of the English Acts of 1875 and
1897, but not brought into operation, and intended to be repealed : Revised
Edition of Ordinances (1916-17), vol. 1, p. 267; vol. 2, p. ix.

37 See Jour. Comp. Leg. xvi. 24 (1916), article by J. R. Innes on
Constitution of Federated Malay States; Bedwell's Legislation of the
Empire, iii. 141, observations by T. Baty on State of Selangor.

33Aust. Torr. Syst. 20.

Sect. 2] SYSTEMS AND JURISDICTIONS. 17

The Jamaica and Trinidad-Tobago statutes are close adapta-
tions of Australasian statutes. The Leeward Islands statutes,
though to some extent following the Australasian model, are more
original in draftsmanship and more elaborate than those of the
other two jurisdictions. Amongst other differences the "posses-
sory * title has been borrowed by the Leeward Islands from the
English system; provision is also made for withdrawing land from
the operation of the title registration system. A tendency towards
Scottish law, as in Fiji and British Columbia, is to be observed, and
the expression " fee simple " does not occur in the registration
statutes.

There is not much local case law on the systems of this group,
though most of the Australian and Canadian case law is applicable.
The British Honduras statute has come up once for interpreta-
tion by the Privy Council.89 In Trinidad-Tobago a few cases have
been decided,40 and the Supreme Court judgments are now pub-
lished in the Gazette. A few cases have also been decided in
Jamaica, but none have yet been published. Some reports of cases
in the Federated Malay States are printed in Innes' Registration
of Title (1913). That book is also the only text-book on any sys-
tem in this group. The Ceylon reports contain no cases relating
to registration of title, though there are cases on deed registration
— principally questions of priority.

V. Protectorates Group.*1
East Africa:

Land Titles Ordinance 1908 (No. 11).

Equitable Mortgages Ordinance 1909 (No. 14).

Land Titles Amendment Ordinance 1910 (No. 11).

Land Titles Amendment Ordinance (No. 2), 1910 (No. 22).

Land Titles Registration Amendment Ordinance 1914 (No. 23).

Land Titles Amendment Ordinance 1916 (No. 4).

Uganda:

Registration of Land Titles Ordinance 1908 (No. 11).
Equitable Mortgages Ordinance 1912 (No. 19).

Sudan :

Title of Lands Ordinance 1899 (No. 2).
Title of Lands Ordinance 1903 (No. 3).

"Belize Estate Co. v. Quilter [18071 A. C. 367.

*Two volumes of Supreme Court judgments have been published, out
of -which less than a dozen cases concern registration of title.

° East Africa, Uganda, and Sudan are among the six omitted jur-
isdictions. Each of the three systems presents special peculiarities of
purely local interest.

B.T.L.— 2

18 INTRODUCTORY. [Ch.i.

In these three systems the prominent feature is the placing of
land on the register by settling claims to land. Statutory methods
of dealing with land are not so prominent, and registration of
transactions rather resembles deed registration. Whilst the gen-1
eral principles of the Australasian systems have been adopted, the
Ceylon system has been drawn on to some extent. Equitable mort-
gages by deposit of certificate of title are specially provided for in
East Africa and Uganda. In Uganda the statutes contemplate
the system being completed by Kules. The Sudan system is rudi-
mentary only. Indian statutory law has been largely adopted in
East Africa, and land is frequently referred to in the local statutes
as " immovable property." In the Uganda statutes the expression
" fee simple " does not occur. :

These three jurisdictions being technically Protectorates only,
and not having been formally annexed by the British Crown, it
might be difficult to say what is the basis of law underlying' the
statutory law.42

There are a few cases reported from East Africa,48 but no text-
books have been published on registration law in these three juris-
dictions, f ; ;'\j . \''i /■'•■•! " A'' af.?t":% *■:

As already mentioned, of the thirty-one jurisdictions (embrac-
ing twenty-eight different systems) above enumerated, twenty-two
only are dealt with in detail in this book. Three jurisdictions —
Northern Territory of Australia, Territory for the Seat of Gov-
ernment, Yukon — have systems identical with those in other juris-
dictions; six — Nova Scotia, Ceylon, The Gambia, East Africa,
Uganda, Sudan-^are not of sufficient relative importance to juStifv
detailed treatment. The twenty-two jurisdictions dealt with in the
following chapters are:

England. , Ontario,

Ireland. British Columbia.

New South Wales. Manitoba.

Queensland. Saskatchewan.

South Australia. tt[ '■'■'-' ' ": Alberta.

Tasmania. North-West Territories.

Victoria. British Honduras; r

Western Australia. Trinidad-Tobago. j

Papua. Jamaica.

N^w Zealand. f ,\ Leeward Islands. ..,j

Fiji Federated Malay States.

'-«' Reference may be made to Buree's Colonial ,& Foreign Law (new
Ed.l i. 329. 337. 341 And see In re Southern Rhodesia [19101 A. C^ll.
48 Tn the East Africa Reports (1897-1916), vols. 1-6, there are three
cases relating to registration of title.

'••;■«

Sect. 3] NOMENCLATURE. 19

, ( SECTION 3 — NOMENCLATURE.

The question of nomenclature arises for two reasons : ( 1 ) The
same name does not always denote the same thing throughout the
twenty-two systems, and occasionally not even in the same system ;
(2) Things that are substantially identical are not always denoted
by the same name in different systems. It is therefore necessary to
explain the meaning of some expressions that are apt to be ambigu-
ous, and to avoid confusion and verbosity by using one name only
for a thing that has different names in different systems. An ex-
ample of the first kind is the expression " Real Property Act,"
which sometimes means a statute in a system of title registration
and sometimes a statute in a system of deed registration. An
example of the second kind is the word " registrar," meaning the
official who conducts the business of a registry office; there are at
least eleven different designations of this official throughout the
twenty-two systems — " recorder of titles," " registrar of titles,"
*■ master of titles," &c.

"Absolute fee." "Absolute title." These expressions are used in
the statutes in contrary senses. In British Columbia the registered
owner of an " absolute fee " is only deemed prima facie to be the
owner;1 the warranty given by registration is even more limited than
that given by " possessory " registration in England, Ontario and.
Leeward Islands.2 In England and Ontario, and also in Jamaica,
an " absolute " title means a registered title to which the fullest war-
ranty is accorded, what in British Columbia and I^eeward Islands
is called " indefeasible."1 The expression " absolute and indefeas-
ible" is also used in other jurisdictions with reference to a fully
warranted title.4 As far as practicable,, in this book the British
Columbia " absolute fee " is included in " possessory title " of other
jurisdictions, and the "absolute" or "indefeasible" title of Eng-
land, Ontario, Jamaica, British Columbia, and I-eeward Islands,
together with the warranted title of the Australasian group, And
Canadian and other systems based on the Australasian type, arc
included in the expression "fully warranted" or "unqualified"
title.

"Abstract." "Abstract of Title." "Registration abstract."
"Abstract" and "abstract of title" are used in the Australasian
systems — in the statutes, reported cases, and ordinary practice^-in

• R C inn. m. 2. 23: TToirard v. ifWcr [101J»1 A. C. 318. 3°4. .,
*Ens. 1875. 8 8: On. 1!>14. s. 12: L. Is. 1886 (1014). s. 1°6
•En" 187' 8 7: On 1914. 8. 10; J. 1888. 8. 17: B. C. 1011, s. 22;
Lvls 1886 (1014). s. 131.

«Fi 1876 (1906), s. 14; F. M. S. 1911, s 8: B. H. 1914. sch. A, r 7.

20 INTRODUCTORY. [Chi.

the same sense as in ordinary English conveyancing, to denote a
written summary of the documents and facts constituting a chain
of title to land.5 In the Canadian cases dealing with registration
of title such an abstract is usually called a " solicitor's abstract,"
and by " abstract * or " abstract of title " is usually meant an
official certificate of the contents of the register so far as it relates
to a particular piece of land.6 The " registration abstract " seems
to be found only in some of the Australasian statutes and a few
other statutes modelled on them, but not in any of the Canadian
statutes; it is merely an unnecessary device for closing the register
pending execution of documents abroad, and in Australia at any
rate is nearly obsolete.7

" Charge." The word " charge," besides being ordinarily some-
what ambiguous through meaning both the interest created and
the instrument creating it, has for the present purpose a further
ambiguity.8 In some systems " charge " includes and means a
mortgage ;9 in others " charge " is distinguished from a mortgage,10
and where this is so the word is used in some systems as the techni-
cal equivalent of " incumbrance " as a statutory instrument for
securing payment of annuities, rent-charges/' &C.11 In the majority
of the twenty-two systems 12 the word " charge," both as a verb and
as a noun, is also employed to describe the operation of a mortgage
in making land security for payment of money without effecting
any transfer of the land itself to the mortgagee. In this book, as
far as possible," " mortgage " will be used where mortgage is

0 N. S. W. 1900, s. 16 ; Q. 1861, s. 17 : S. A. 1886, s. 29 ; Tas. 1862,
s. 15 ; V. 1915, s. 29 ; W. A. 1893, s. 30 ; N. Z. 1915, s. 21 ; Davidson v.
Brown (1879) 5 V. L. R. L. 288: Roberts v. Balfour (1892) 18 V. L. R.
140: Bodley v. Macdonald (1901) 20 N. Z. R. 371; Martin's Conv. in
N. Z. 49 ; Conv. & Prop. Law, 36.

• Newberry v. Langan (1912) 47 Can. S. C. R. 114; Auriol v. Alberta
Land Co. (1912) 20 West. R. 185; Canada Life Ass. Co. v. Assiniboia
Registrar (1912) 21 West. R. 469.

'Aust. Torr. Syst. 914, 915; V. 1915, ss. 192-195; N. Z. 1915, ss. 137-
144; Pi. 1876 (1906) ss. 78-81: Tr 1902, ss. 87-91; J. 1888, ss. 118-121;
L. Is. 1886 (1914) ss. 149, 150. The enactments are omitted in the
statutes of South Australia, Western Australia, and Papua.

• For further special ambiguities, see Aust. Torr. Syst. 968.

•Eng. 1875, s. 22; I. 1891, s. 40; On. 1914, s. 30; B. C. 1911, ss. 2,
29; P. M. S. 1911. s. 43. In New Zealand "mortgage" includes charges
of every kind; N. Z. 1915. s. 2.

"V. 1915, s. 145; W. A. 1893, s. 105, and 1909, s. 13; Tr. 1902, s.
74; J. 1888, s. 78.

M See preceding note.

MThe exception is British Honduras, where no particular form of
mortgage is prescribed or referred to. In British Columbia also no form
of mortgage is prescribed, but the register of "charges" is kept distinct
from that of ownership.

Sect. 3] NOMENCLATURE. 2j

meant, and " charge " used to denote a charge other than a mort-
gage.

" Grant." In Australasia " grant " is often used to mean a
Crown grant as distinguished from a certificate of title. In Can-
ada " grant * is used as a verb synonymous with " issue " in
Australasia ; a certificate of title is said in Canada to be "granted/'
and in Australasia to be "issued " or to " issue."

" Incumbrance." " Incumbrancer." "Incumbrancee." In some
systems "incumbrance " has the technical meaning of a charge
on land, otherwise than by way of mortgage, to secure
such payments as annuities and rent-charges. In these sys-
tems, and also in British Columbia, " incumbrancer " is used in
the unusual sense of the person creating the charge, and " incum-
brancee " is coined to denote the person in whose favour the charge
is made.18 The use of these words will be avoided in this book, as
far as possible, and "incumbrancer" (when used) will have its
ordinary meaning, so far as possible, of the person to whom the
money charged is due.

" Possessory title." In the systems of England, Ontario, and the
Leeward Islands, the expression " possessory title " is used in the
technical sense of a title to land registered without any warranty
of the owner's title prior to registration, as distinguished from
"absolute title." Title by long possession under Limitation Acts
is sometimes spoken of as a possessory title, but the latter expres-
sion will in this book be confined to the " possessory title " referred
to in the three systems mentioned.

"Real Property Acts." The registration statutes of New South
Wales, Queensland, South Australia, Tasmania, Papua, Fiji, Mani-
toba, and Trinidad-Tobago, are known as " Real Property " Acts or
Ordinances. In dealing with the statutes of Victoria — the title
registration statutes there being called " Transfer of Land Acts "
— it is necessary to remember that the statutes known as " Real
Property Acts " do not relate to registration of title (except inci-
dentally), but that the statutes relating to registration of deeds are
included among "Real Property Acts." These Victorian statutes,
therefore, for the most part have nothing to do with the subject of
the present book. The enactments of the Real Property Act 1915

UN. S. W. 1900, s. 56: Q. 1861. s. 56: S. A. 1886. s. 128: Tas.
1862. g 52: P. 1913. s 46: N. Z 1915. Rch. 2 f . F. : Fi. 1876 (1906) s.
58: B. C. 1911. s 2: M. 1913. s. 107: Saa. 1917, s. 98: Al. 1906, s 60:
Can. 1906, 8. 94 : L. Is. 1886 (1914) ss. 50, 51. For the origin of the
"incumbrance," see Aust. Torr. Syst. 28, 968.

2& INTRODUCTORY. [Ch. I.

citedin the list (ante, p. 9) of Victorian statutes deal only with
questions of survey boundaries and voluntary conveyances.

. "Register." The word "register," as a noun, has more than
one meaning. In some of the English statutes it is often used to
denote the single page, folio, or perhaps even book, in or on which
are made entries relating to a particular piece of land, or entries
of a particular class of transactions. In the majority of the
statutes "register" is commonly used in the sense of " register
book," and sometimes in a still wider sense, including the whole
mass of papers filed at a registry.14 The context is often .theonty
guide as to which meaning is intended.

The list of conventional terms has now to be given and, ex-
plained.

"Certificate of title." The duplicate of the entries in the
register, which in the majority of jurisdictions is called a certifi-
cate of title, duplicate certificate of title, or sometimes certificate
only, is in Ontario known as the " certificate of ownership," and
in England and Ireland " land certificate." " Certificate Of title "
will, in this book, usually mean and include the land certificate of
England and Ireland, and the certificate of ownership of Ontario.
It may be mentioned that no provision for issue of any certificate1
of title is made in British Honduras, but office copies of the register
may be issued.15

"Crown grant" In Canada a grant from the Crown is com-
monly called a Crown patent, or simply patent. "Crown grant"
will mean and include the Canadian Crown patent.

"Initial Registration." This expression will be used to de-
scribe what is in some systems called " first registration," and in
others "bringing land under the Act" or "bringing land under
the new system," &c.

"Registered land." Land that is brought under what js in
several Canadian statutes referred to as " the new system " will be
referred to as "registered land," a convenient expression used in
the English statutes, and also in recent Victorian statutes.16 Lancl
still remaining under the "old system" or " general 'laty*? will
usually be referred to as "unregistered land." ,'

"Registered owner." This expression occurs in the Irish and
some of the Canadian statutes in place of the "registered pro-

<14Own. & Tnc 81. 82: Aust. ToYr. Syst. 763.
- >. «*.Bj T»: 1014 8. so

18 V. 1015 s 87. re-en*<M:inff V. 1014 (No. 2) s. 4 "Register the land"
occurs in In re Woods (1869) 6 W. W. & a' B. L. 233.

Sect. 3] NOMENCLATURE. 23

prietor" of the English, Australasian, and some other statutes. It
will be used as including " registered proprietor." The words
"owner" and "proprietor" are properly synonyms.17

"Registrar." This word will generally be used as including
officials described in various statutes as registrar-general, registrar
of titles, recorder of titles, master of titles, commissioner of titles>
&c.

" Registration statutes." "Statutes." The various enactments
dealing with registration of title will be referred to usually as
" statutes," and " registration statutes," whether they be -Acts,
Ordinances, or Enactments, and whether properly known as Land
Transfer Acts, Land Titles Acts, or Real Property Acts, &c.

* Registry." This word will he used to denote the office where
registration is carried out, thousrh variously called Land Registry,
Land Titles Office, Office of Titles, &c.

" Fully warranted title." " Unqualified title." These expres-
sions {more generally the former) are used to denote the ordinary
warranted title in Australasian, most Canadian systems, and other
systems modelled on the Australasian type: they also include, as
far as practicable, the " absolute " title of England, Ontario, and
Jamaica, and the "indefeasible" title of British Columbia and the
Leeward Islands.

" See Royal Commissioner's 1857 Report, referred to in Own,. & Tnc.
92. In L. Is IRSfl (1914) soh. A "Owner," this identity of meaning
is assumed in making a temporary distinction.

■

\ il*

[■ '

24 INITIAL REGISTRATION. [Ch.ii.

CHAPTER II.— INITIAL REGISTRATION AND REMOVAL
FROM REGISTER.

SECTION 1. REGISTRABLE INTERESTS.

The initial registration of land consists of two operations : The
land is for the first time placed on the register, and the title of the
owner for the time being is authoritatively declared. The result is
that for the future the rules of the new system apply to the land in
lieu of those applicable to unregistered land, one of the most im-
portant of these being that the register becomes in itself evidence
of title or ownership. The present section deals with two ques-
tions: (1) What interests in land regarded as rights of property
can be the subject of initial registration; (2) What interests with
reference to the personality of the owner will constitute a right to
have initial registration effected. As a matter of convenience
'* leasehold land " will be included under the first head, and " ten-
ant for life " under the second.

1. In general nearly every substantial interest in land can be
registered, from complete ownership — whether ownership in fee
simple under English law or ownership under the civil law or
Mohamedan law — to terms of years and rights in the nature of
easements, and from the whole of the soil itself a coelo usque ad
inferos to undivided shares and shares divided both vertically and
(so far as English law is concerned) horizontally. For the most
part, land as a subject of registration is defined in the different
statutes widely enough to embrace hereditaments and immovable
property of every kind. There is, however, a lack of uniformity
with regard to terms of years, undivided shares, mines, and incor-
poreal hereditaments.

In sixteen of the jurisdictions there is express or implied
authority for the initial registration of terms of years or leaseholds.
In four of these — South Australia, Papua, New Zealand, Feder-
ated Malay States,1 — provision is made only with respect to leases
by grant from the Crown or State. In eight — England, Ireland,
Ontario, New South Wales, Victoria, Western Australia, Trinidad-
Tobago, Jamaica 2 — express provision is made with respect to lease-

»S. A. 1886, s. 93: P. 1913. s. 32; New Zealand, Land Act 1908 (No.
94), s 90: F. M. S. 1911. ss. 27, 28.

•En?. 1875. s. 11 : I. 1891. s. 53: On. 1914, s. 16: N. S. W. 1900,
ss. 14 (2). 34: V. 1915 s. 38; W. A. 1893, s. 39, and 1909, s. 4; Tr. 1902,
ss. 10, 38; J. 1888, s. 36.

Sect. 1] REGISTRABLE INTERESTS. 25

holds generally, though in New South Wales and Trinidad-Tobago
the leasehold ownership, if the fee simple be also registered, cannot
appear on a separate register but only as an interest in or incum-
brance upon the registered freehold. In four — Manitoba, Sas-
katchewan, Alberta, North-West Territories8 — authority for the
initial registration of leaseholds is implied in the use of the phrase
"any estate or interest." In the other six jurisdictions — Queens-
land, Tasmania, Fiji, British Columbia, British Honduras, Lee-
ward Islands — when leaseholds are referred to, it is on the assump-
tion that the land has already been placed on the register. In
British Honduras " lease " is not mentioned in the statute, though
there can hardly be any doubt as to the right to create a lease and
register it as an interest in the land. In British Columbia * leases
are referred to as registrable incumbrances. In Tasmania 5 a sepa-
rate register may be opened for certain leases. The Queensland
and Fiji 6 statutes have merely the provisions for leases of regis-
tered land common to other statutes of the Australasian type, and
in the Leeward Islands 7 the provisions are very similar.

The wide definition of " land " in most of the statutes — usually
including all hereditaments corporeal and incorporeal — would or-
dinarily include an undivided share in land, as an interest that
admitted of initial registration. In many of the statutes, however,
express provision on this point is made. In three — England, Ire-
land. British Columbia 8 — undivided shares are, expressly or by
implication from the definition of " land," allowed to be brought
on to the register without the concurrence of co-owners. It is
obvious that the initial registration of an undivided share in land
is for many practical purposes the same thing as the registration
of the entirety, and it is possible that the intention of the British
Columbia enactment (s. 18) is to have the entirety placed on the
register at the instance of one co-owner only. In eight jurisdic-
tions— New South Wales, Queensland, South Australia, Tasmania,
New Zealand, Ontario, Manitoba, Trinidad-Tobago" — the initial

'M. 1913, s. 28: Sas. 1917. s. 81: Al. 1906. ss. 26 (5), 27; Can.
1906, as. 54, 55. It has been held that a lease from the Crown entitles
the srantee to initial registration: In re Land Title* Act (1913) 24 West.
R. 385 (Al.). under Al. 1906. s. 26 (1).

*B C. 1911. ss. 20A. 43, 149.

•Tas. 1862. s. 32: 1886, s. 12: 1893. ss. 8 10.

•Q. 1861. s. 52 et seq.: Fi. 1876 (1906), s. 49 et seq.

TL. Is. 1886 (1914), ss 56-58, 68-70.

•Ene. 1875, s. 82, and 1897, ss. 14, 24; I. 1891, ss. 64, 95; B. C.
1911. s. 18.

•N. S. W. 1900. s. 14 (3) : Q. 1861. s. 16: S. A. 1886. s. 28: Tas.
1863 s. 4; N. Z. 1915, s. 20 (2) ; On. 1914, s. 96; M. 1913, s. 35; Tr.
1902, 8. 11.

26 INITIAL REGISTRATION. [Ch. n.

registration of undivided shares separately is expressly forbidden,
and in, Victoria and Western Australia 10 this prohibition seems to
be implied, and still more strongly implied in Leeward Islands.11

In some jurisdictions mines are included by express words in a
definition clause, or by implication in " land," and no separate pro-
vision is made with regard to them. In others mines are ei-
pressly excluded from land and intended to be dealt with sepa-
rately. In others again mines are usually included in land unless
actually severed from the surface, and provision is made for their
separate registration when necessary. " Mines " are expressly in-
cluded in " land " by definition clauses in the following jurisdic-
tions: New South Wales, Queensland, Tasmania, Papua, New
Zealand, Fiji, Manitoba, Saskatchewan, Alberta, North-West Ter-
ritories, British Columbia, Trinidad-Tobago;12 but sometimes the
same statute contains an enactment expressly excluding mines in
certain cases, and instances of this occur in Alberta and British
Columbia.13 In the following seven jurisdictions the definition
clause by implication includes mines in "land": South Australia,
Victoria, Western Australia, British Honduras, Jamaica, Leeward
Islands, Federated Malay States.14 In Ireland and Ontario 15
registration in respect of the land generally does not ipso facto give
title to the mines, and these must be the subject of distinct regis-
tration. In England land 16 prima, facie includes the mines, but
express provision is made for their separate registration when neces-
sary.

. The statutory definitions of "land " (already referred to) ex-
pressly include all hereditaments "corporeal and incorporeal" in
seventeen jurisdictions: England, all nine Australasian, Mani-
toba, Saskatchewan, Alberta, North-West Territories, British Hon-
duras, Trinidad-Tobago, Jamaica. British Columbia includes all
"hereditaments" without saying "corporeal." Ontario expressly
provides for the initial registration of incorporeal hereditaments,

*V. 1915, s 18: W. A. 1893, s. 20.

11 U Is. 1886 (1914), s. 12. Rut an instance of the registration of
an undivided share occurs in In re Smith |1916] 2 Ch. 206.

»'N. S :W. 1900, s. 3: Q 1861, s. 3; Tas. 1862. s. 3 : P. 1913. s. 5;
N. Z. 1915, s. 2: Fi. 1876 (1906) s. 2: M. 1913. s. 2: Sas. 1917, s. 2: Al.
1906, s. 2: Can 1906. s. 2 : B. C. 1911. s. 2: Tr. 1902, s 2. Of course
mines may be dealt with ajrart from the surface: an illustration is Taitapu
Gold Estates v. 7Votr.se (19161 N. Z. R. 825.

•*A1. 1906 s. 126 (2) ; R. C. 1911, s. 17.

IJ S. A 188ft, s. 3: V. 1915. s. 4 : W. A. 1893, s. 4 ; R. H. 1914, a. 1;
J. 1888', s. 2: L. Is. 1886 (1914) seh. def. "land"; F. M. S. 1911, s. 2.

v» I. 1891. s. 48: On. 1914. ss. 93. !)4.
.1 MEng. 1875, ss. 18, 82; 1897, s. 24. See Own. & Inc. 48, 109, 279,
296, 370.

Sect.,!] REGISTRABLE INTERESTS. g7

and this is also done in England. In Ireland the definition of
"land" is "all corporeal hereditaments, but no other heredita-
ments/' the initial registration of incorporeal hereditaments other-
wise than as a " burden " on land being thus impliedly forbidden.
In Leeward Islands and Federated Malay States the actual lan-
guage of the statutes throws no light on the question whether
incorporeal hereditaments are intended to be the subject of initial
registration apart from the land itself. The implication appears to
be (particularly as to Leeward Islands) that incorporeal rights are
not intended to be registered separately. In British Columbia
■ hereditaments" would seem to include incorporeal hceditaments,
and if so, incorporeal hereditaments could be the subject of separate
initial registration.

England, Ireland and Ontario are the only jurisdictions in
which provision on this subject has been made, either expressly
allowing or pointedly forbidding the initial registration separately
of incorporeal hereditaments.

The scheme of the system in Ireland is that incorporeal rights
should be placed on the register as merely incumbrances or " bur-
dens " upon land, and not as substantive hereditaments — " this be-
ing part of the essential framework of the system " ; hence the
statutory definition expressly excludes all other hereditaments than
corporeal, though incorporeal rights could apparently be placed on
the subsidiary registers.17

In England express provision is made in the 1875 Act for the
initial registration of incorporeal hereditaments as distinct sub-
jects of property, and reliance on the wide definition in the 1897
Act is not necessary.18

In Ontario initial registration may be had for "any incorporeal
hereditament enjoyed in gross"; provision is also made for regis-
tration of easements over unregistered land and appurtenant to
registered land, and over registered land and appurtenant to un-
registered land.19

The latter part (sub-ss. 2, 3) of On. 1914, s. 93, is not derived
from the English Act of 1875, and there appears to be no other
enactment precisely corresponding to it in any other jurisdiction.
In six of the Australasian systems — Queensland, South Australia,

»T. 18f)l. as. 54. 95. The words qnoted are those of Madden J. in
In re Keonh and Kettle [189fil 1 I. R. 285.

M Eng. 1875. s. 82. and 1897. s. 24. See Own. & Tnc. 48. 279, 370.

"On. 1914. ss. 13 (4. 5). 93 Sub-s. 1 of s 93 is framed on En?.
1875. s. 82, and the words "enjoyed in eross." which occur in both sec-
tions, have in England been repealed by Eng. 1897, sch. 1.

38 INITIAL REGISTRATION. [Ch.ii.

Tasmania, Victoria, Western Australia, and Papua 20 — provision
is made for the separate registration of easements, and for the
registration of land having appurtenant to it an easement over land
which may be unregistered.21

Apart from the legislation just referred to, there seems no
reason on principle why an incorporeal hereditament should not be
the subject of initial registration, notwithstanding that the land
out of which it issued, or to which it was attached, is not registered
land. The case of a rent-charge has been suggested as illustrating
this.22

2. With reference to the personality of the owner of land or
other person seeking initial registration, such a person may be
alternatively: (i) The Crown or a private person; (ii) A subject
of the Crown or an alien; (iii) A natural person or a corporation;
(iv) An owner with limited interest or a full owner; (v) A trustee
or a beneficial owner; (vi) A legal or an equitable owner, or a
person with a mere power of disposition or appointment; (vii) A
person of full capacity, or one under some disability.

i. Notwithstanding the technical difference between the title of
the Crown and the title of a private person, the Sovereign is treated
in the registration statutes substantially in the same way, with
regard to the ownership of land, as a private person, though with
some difference in procedure. The initial registration of the
Crown is expressly provided for in Ireland, Ontaxio, and Manitoba,
and perhaps impliedly in England.28 In England and Ireland it
is contemplated that a public officer or body, or person appointed
under the sign manual, shall represent the Crown on the register.
The Ontario enactment, after providing for the initial registration
of an owner in fee simple or his nominee, proceeds :

The Attorney-General for Canada, or the Attorney-General for
Ontario, may apply in like manner in respect to the title of the Crown
to any land; and the practice and procedure upon the application
shall be the same as in ordinary cases.

M Q. 1877, s. 28 ; S. A. 1886. s. 81 : Tas. 1886, ss. 26, 28 ; V. 1915 ss.
68, 70; W. A. 1909, s. 15; P. 1913. s. 72.

91 Ex p. Metropolitan Build. Soc. (1885) 10 V. L. R. L. 361, over-
ruling previous cases.

"Ex p. Cuningham (1877) 3 V. L. R. 199. 205; In re Keorjh and
Kettle [1896] 1 I. R. 285, where "a rent issuing out of laud" is
selected as typical, incorporeal hereditaments being expressly excluded from
registrable " land " in Ireland.

"I. 1891. s. 78; On. 1914, s. 6 (3); M. 1913. s. 32; Eng. 1S75,
s. 65. The opinion expressed in Own. & Inc. 39. 49. 50, that Crown land
cannot be the subject of initial registration in England, must be modified.

Sect. 1] REGISTRABLE INTERESTS. 29

Most of the other references in the statutes to the registration
of the Crown as owner of land assume that the land is already
registered.24

In most jurisdictions the registrar is expressly authorized to
enter caveats for the protection of land belonging to the Crown and
already on the register.25 There is also an implied authority for
the law officers of the Crown to enter caveats on its behalf against
initial registration,2* and the Australian cases as to this seem
applicable in other jurisdictions; in England and Ireland the sec-
tions already cited also authorize the lodging of cautions.

The general conclusion is that the Crown can in all jurisdic-
tions be placed on the register as owner of land, and can make
application for initial registration when such a course seems advis-
able. Land vested in a public officer or body is in much the same
position as land vested in ordinary private persons, though the pro-
cedure may sometimes be adopted which is appropriate to land
vested directly in the Crown.

ii. An alien who has the right to own land in any particular
jurisdiction could hardly be held not to be entitled to apply for and
obtain initial registration. The subject of the rights of aliens to
own land is a question into which it is unnecessary to enter in any
detail here. The British Nationality and Status of Aliens Acts
1914 and 1918 must now be taken into account in considering the
position of aliens in the Empire.27

iii. As in the case of an alien, a corporation that can own land
can hardly be denied the right of initial registration. Conversely
it would seem clear that a corporation not entitled to own land
could not take advantage of the registration statutes to obtain a
title to land. This was so held in British Columbia by a court

*N. S. W. 1900, s. 49; Tas. 1886, s. 23; W. A. 1896. s. 6; N. Z.
1915, a. 88(2) ; B. C. 1911. s. 58; Sas. 1917, ss. 88, 89; Al. 1906. ss 128,
130; Tr. 1902, s. 94, and 1914, s. 2; Ontario, Town Sites Act (R. S. 1914,
c 34).

*N. S. W. 1900, s. 12; Q. 1861, s. 11; Tas. 1862, s. 11; V. 1915. s.
233; W. A. 1893, s. 188; P. 1913, s. 15; N. Z. 1915, s. 183; Fi. 1876
(1906) s. 108; M. 1913, s. 54; Al. 1906. s. 100; B. C. 1911, s. 62A : Tr.
1902. s. 8: J. 1888. s. 11: F. M. S. 1911, s. 79 (referring to "Ruler of
tbe State"). These enactments do not apply to caveats aeainst initial
registration: In re Walker (1890) 11 N. S. W. 369 ; see next note.

"Atty.-Gen. v. Hoggan (1877) 3 V. L. R. Ill; In re Walker, supra;
Bank of Australasia v. Atty.-Gm. (1894) 15 N. S. W. 256.

" Australasian legislation is referred to in Aust Torr. Syst. 734 ; the
Aliens Act now in force in New Zealand is that of 1908 (No. 5). and to
the list in note 32 mast be added " Papua : Aliens Ordinance 1911 (No. 26) ."
As illustrating possible difficulties, reference may also be made to De Britt
v. Carr (1911) 13 C. L. R. 114, and to s. 241 of the New South Wales
Crown Lands Consolidation Act 1913 (No. 7).

m INITIAL REGISTRATION. [Ch.1I.

of first instance, but the decision was reversed on appeal, the report
unfortunately being silent as to the reasons for the reversal.'* In
the case referred to the company was in one sense " foreign," being
an English company not registered locally. It is not within the
scope of the present book to deal further with this question here ;*•
the question of the title gained by a corporation when de facto
registered will have to be considered later on.

i v. The applicant may be a " limited " or a "full " owner, by
" limited ? being meant having less than the fee simple or other
complete property in the land.80 The typical limited owner here
referred to is a tenant for life. The question of terms of years or
leaseholds has been dealt with from another point of view (ante,
p. 24).

In some jurisdictions — Papua, Fiji, Federated Malay States,
British Honduras, Leeward Islands — no provision is made for
initial registration at the instance of limited owners.

In England, Ireland, and Ontario81 a tenant for life can only
apply for initial registration of land if he has a power of disposi-
tion or sale over the fee simple, this being often conferred bv the
Settled Land Acts or Settled Estate Acts. It is apparently con-
templated in Ontario that an applicant-tenant for life may be
registered as owner of the fee simple. In England and Ireland
the statutes contemplate the tenant for life being registered as
owner, but perhaps not of the fee simple, and the registered estate
of such an applicant is anomalous. The consent of other persons
interested in the land may be required Under certain circumstances,
where an application for initial registration as owner is made by a
tenant for, life.

In sit jurisdictions — New South Wales, South Australia, Tas-
mania, New Zealand, British Columbia, Trinidad-Tobago88 — all
the persons collectively entitled to the fee simple must concur in
or consent to the application. If a tenant for life were registered
as full owner it would be by arrangement with other persons inter-

m Exp. New Vancouver Coat Co. (1800) 2 B. C. R 8: 0 B. C. R 571.
. "See Aust. Torr Syst. 732, for some observations on corporations in
Australasia. See Own. & Inc. 57 for references to the Enslish Acts and
Rules.

*° The expressions *\ full " and " limited " owner of registered land
occur only in the Irish Act, but they are adopted here for general use as
being extremely convenient A "limited" owner of settled land is often
referred to in English statutes unconnected with registration of title.
« "Enc 1875. ss. 5. 08. and 1807. s. 6: I. 1801, ss. 28, 71; On. 1014,
ss, 0. 7, See Own. & Inc. 80. 140. 213.

•N.'S. \V. 1000, s. 14: S. A. 1880. s. 27: Tas. 1803, s. 4 : N. Z. 1015,
s. 20: B. C. 1011, ss. 14, 18, 53; Tr. 1002 s. 10.

SKCT. 1] REGISTRABLE INTERESTS. 31

estod, aud his estate would bo nothing less Limn the fee simple. But
one person might of eourse be registered as a limited owner, the
interests in remainder being also duly entered on the register." in
other jurisdictions land can be registered initially on the applica-
tion of persons who do not amongst them own the complete lee
simple. In Queensland, and perhaps in Alberta and North-West
Territories," a tenant for life is empowered to obtain initial regis-
tration without concurrence of other persons interested. In West-
ern Australia and Jamaica84 the concurrence of the owner oi a
" vested estate of inheritance " is essential to the life tenant's appli-
cation, and this estate of inheritance might of course be a fee
tail. So in Victoria," though there "a tenant for life within the
meaning of the Settled Estates and Settled Lands Act 1!)15" may
also apply; but the trustees of the settlement must consent and be
registered as owners. With reference to applications by teuauts-in-
tail, in Victoria estates tail cannot now (since 1885) be created,"7
and in Jamaica a tenant-in-tail will not be placed on the register,
either as entitled to the fee simple or otherwise, even though he
may be a person who can "dispose of the fee simple.""

In the jurisdictions above referred to it is the complete fee
simple that is the subject of registration, notwithstanding that in

ie cases the applicant may not be the owner in fee. In Mani-
toba, Saskatchewan, Alberta, and North-West Territories," the
statutes expressly refer to the registration (in Alberta and North-
West Territories) of the applicant's life estate, and (in all four)
his "estate or interest." These enactments may possibly be con-
strued as authorizing the registration of the applicant's interest
(when less than the fee simple) only; if so, they will constitute an
exception to the general rule that the initial registration of a lim-
ited owner brings the land or the whole fee simple (apart from the
question of leaseholds) on to the register. But the construction
is not clear.

■ An illustration of an application by tennnt-In-tail is In re De Lauret
(1900) 10 8 R. (N. 8. W.) 240.

«Q. 1801. s. 10. and see as. 20. 30-30: Al 1000 a. 20 (5): Can.
1900, 8. 64. The construction of tb« two latter enactments is difficult;
they may possibly refer only to the case of life estates in land already on
the reeister.

"W. A. 1803. s. 20: J. 1888. a. 19. An illustration is Chapman
v. Robertson (1&<m 13 V. L. R. 082.

•V. 1015. a. 18.

" Real Property Act 1915. s. 02. replacing the section (s. 108) printed
in Aust Torr. Syst B7B.

•" In re Wcatherapoon and Bayne's Application (Jamaica. 1908) un-
reported.

•M. 1013. a. 28; 8as. 1017, s. 31; Al. 1900, sa. 20 (5), 27; Can.
1900. as. B4, B6.

32 INITIAL REGISTRATION. [Ch.H.

v. Applicants (where an application is necessary) may be trus-
tees, or may be beneficially entitled. The trustees of course may
have only an equitable estate, and the beneficial owner may have a
legal estate — this distinction is not here in question. So far as the
forms and procedure of initial registration are concerned, the ques-
tion whether an applicant is a trustee or not is only material in
eleven jurisdictions — England, Ontario, the seven Australasian
jurisdictions in which an application is necessary, Trinidad-To-
bago, and Jamaica. In no other system is any distinction made
between the application of a trustee and of a person beneficially
entitled.

In England and Ontario 40 trustees for sale may apply to be
registered, with the consent of the persons (if any) whose consent
is necessary for the sale. In the absence of a power to sell, an
owner not entitled beneficially could only obtain registration by
consent of all persons who were entitled beneficially. This of
course would not apply in a case where persons in whom the fee
simple was vested were in fact trustees, but the trust was not dis-
closed on the title.

In Victoria, Western Australia, and Jamaica,41 "trustees for
sale of the fee simple " may apply, but only with the consent of
those whose consent to sale is necessary. It has however been held
in Victoria that trustees without power of sale may be "owners
of the fee simple " either at law or in equity," under another
clause of the same enactment, and as such may be entitled to apply
for initial registration without any consent from beneficiaries.42
But trustees will nevertheless be personally liable for the expense
incurred, if they obtain registration improvidently.43

In the remaining six jurisdictions the enactments are drafted
somewhat differently, the clause relating to trustees being in the
form of a proviso to that giving authority to fee simple owners to
apply, with the result that the Victorian decision above referred to
is inapplicable. In South Australia,44 when " trustees seised in fee
simple have no power to sell/' the consent of all persons beneficially
entitled is required. In New South Wales, Queensland, Tasmania,
New Zealand, and Trinidad-Tobago,45 when trustees have " no
express power " of sale, consent of beneficiaries is also required ; if

"Eng. 1875, s. 68; On. 1914, s. 7. See Br. & Sh. 211, 212.
"V. 1915, s. 18; W. A. 1893, s. 20; J. 1888, s. 19.
aIn re Benn and Grice (1886) 12 V. L. R. 366.
"Crout v. Beissel [1909] V. L. R. 207.
**S. A. 1886, s. 27.

•N. S. W. 1900. s. 14; Q. 1861, s. 16; Tas. 1863, s. 4; N. Z. 1915,
s. 20; Tr. 1902, 8. 10.

Sect. 1] REGISTRABLE INTERESTS. 33

such a trustee is improperly registered as sole owner, a purchaser
from him will not necessarily get a bad title though put on en-
quiry.46 Such an " express " power may be conferred by a private
Act of Parliament subsequently to the creation of the trust.47 But
an administrator is not a trustee entitled to make application with-
out consent under these enactments.48

vi. Applicants for initial registration may have: (a) legal
ownership of the land; (6) equitable ownership, or a right to have
the legal interest; (c) a power to dispose of the land, with or with-
out any actual ownership. Some statutes make no reference to
power, some permit one of the above alternatives to legal owner-
ship, and others both alternatives.

In British Columbia and Leeward Islands no special mention
is made of legal or equitable ownership or power of disposition. In
British Honduras merely equitable ownership is apparently not
sufficient, it being contemplated that the applicant shall have the
legal interest.4*

In seven jurisdictions one alternative only is offered. In Mani-
toba, Saskatchewan, Alberta, and North-West Territories, an appli-
cant may be the owner of any " estate or interest in land, whether
legal or equitable"; in Ireland the only case of other than legal
ownership expressly mentioned is the case of a purchaser who has
not yet received his conveyance, but it is also implied that tenants
for life under the Settled Land Acts may apply.80 The correspond-
ing provisions in the Queensland and Tasmanian statutes are
framed more elaborately, and (in Queensland particularly) this
sufficiency of equitable interests is sometimes only implied, and
rests partly on judicial decision.81

In the remaining nine jurisdictions two alternatives are offered
— an equitable interest and a power of disposition. England and
Ontario82 constitute one distinct type, and the seven others

* George v. Aust. Mut. Prov. Son. (1888) 4 N. Z. S. C. 165.

«Ea> p. Pennington (1875) 18 S. C. (N. S. W.) 305.

*• Public Trustee v. Arthur [18921 S. A. R. 59; In re McCarthy (1877)
11 S. A. R. 39: In re Hutchinson (1910) 27 W. N. (N. S. W.) 164.

*B. H. 1914, 88. 16, 40. But by s. 10 a "safe-holding title" is
sufficient.

"M. 1913, s. 28: Sas. 1917, s. 31; Al. 1906, s. 27; Can. 1906, s. 55;
I. 1891, ss. 28 30 (7).

WQ. 1861, a. 16; In re Eaton (1879) 1 Q. L. J. Snppl. 9; Tas. 1863,
s. 4 (fee simple "either at law or in equity"). And see Aust. Torr. Syst.
725, 727.

■ Bnjr. 1875, ss. 5, 11, 68 ; On. 1914, ss. 6, 7, 16. And see Own. &
Inc. 50, 53.

B.TX. — 3

34 INITIAL REGISTRATION. [Ch. n.

another, viz. New South Wales, South Australia, Victoria, Western
Australia, New Zealand, Trinidad-Tobago, and Jamaica.68 In all
nine, although the fee simple is usually (but not in every case)
stated to be "at law or in equity," the sufficiency of an equitable
interest when less than the fee, and sometimes of an equitable fee
simple, seems clearly implied; decided cases support this view, as
also do occasional instances of enactments in general statutes con-
ferring the right to initial registration on persons who have not
complete legal ownership.64

a. Legal ownership, from the point of view of the applicant,
may be of two kinds — ownership existing by virtue of a chain of
title evidenced by documents, and ownership existing by virtue of
mere length of possession. On the production of the documents
constituting the chain of title, a court of law will unhesitatingly
declare that the person in whom the legal interest is shewn to be
vested is the legal owner. But courts administering English law
have up to the present time had considerable hesitation in bestow-
ing the name of legal owner on a person who can — in lieu of prov-
ing his own title affirmatively — do no more than prove the nega-
tion of title in someone else. The following passage in a judgment
of the Privy Council 65 represents the highwater mark in judicial
assertion by an appellate court of the affirmative side of a title by
possession :

It cannot be disputed that a person in possession of land in the
assumed character of owner, and exercising peaceably the ordinary
rights of ownership, has a perfectly good title against all the world
but the rightful owner, and if the rightful owner does not come for-
ward and assert his title by process of law within the period pre-
scribed by the provisions of the Statute of Limitations applicable to
the case, his right is forever extinguished, and the possessory owner
acquires an absolute title.

Apparently there is no reported case in which it is actually de-
cided in so many words that the title by possession thus acquired is
a legal estate in fee simple. But the established practice in the
Australasian jurisdictions is to treat a title by possession under the

M N. S. W. 1900, s. 14 ; S. A. 1886, s. 27 ; V. 1915, ss. 18, 38 ; W. A.
1893, ss. 20 39; N. Z. 1915, s. 20; Tr. 1902, s. 10; J. 1888, ss. 19, 36.

M See Q. 1877. s. 10, where mere concurrence of a legal owner is
made sufficient, , without formal conveyance of bis interest. In In re De
Lauret (1909, 10 S. R. (N. S. W.) 240) the applicant's title was an
equitable estate tail. New South Wales — Forfeiture and Validation of
Leases Act 1905 (No. 8), s. 7 (3), right to a lease under imperfectly exe-
cuted power.

■ Perry v. Clissold [1907] A. C. 73, 79. Similar language is used,
substituting "indefeasible" for "absolute," in In re Eaton (1879) 1
Q. L. J. Suppl. 9, 11.

SECT. 1] REGISTRABLE INTERESTS. 35

Limitation Acts as " a fee simple in possession/' both at law and in
equity, for purposes of initial registration, whether put forward by
an applicant or a caveator who opposes the application.58 So in
Ireland.57 In Victoria and Western Australia it has been assumed
by the legislature, rather than enacted, that a title to land on the
register can be acquired by adverse possession under Limitation
Acts.58 And it has now been expressly laid down in two Canadian
jurisdictions that the ownership, in respect of which a person
claiming by adverse possession applies for initial registration, may
be properly described as an estate in fee simple.59 This fee simple
is, as a matter of fact, treated for purposes of initial registration as
a complete legal estate, and not as an equitable estate apologizing
for the absence of the legal interest. Only in one jurisdiction,
however, does this seem to have been the subject of definite enact-
ment; in the Leeward Islands80 an applicant who has been in
possession for twelve years is " for the purpose of this Act " to be
"taken as the owner thereof, and the certificate of title shall issue
to him accordingly."

In most jurisdictions a fee simple title by possession may thus
be acquired against the Crown as well as against a private person.
The Crown Suits Act 1769 (the Nullum Tempus Act) is in force
in the oversea dominions, unless some express legislation declares
the contrary,81 and it has now been held that the effect of 60 years
adverse possession is to extinguish the title of the Crown, just as
the title of a private person is extinguished by virtue of other
Limitation Acts.83 Where the statutory qualification for the right
to initial registration is simply ownership " in fee simple," or

"In re Eaton, supra; Ex p. O'Neill (1897) 7 Q. L. J. 155; In re
Cooper (1904) 4 S. R. (N. S. W.) 470; In re Spencer, ib. 471; In re
Robertson (1907) 7 8. R. (N. S. W.) 474.

" Bro. & Gl. 167; In re Hoyden [1904] 1 I. R. 1 (same principle as to
leasehold).

•V. 1915, s. 87; W. A. 1893, s. 222; Tuckett v. Brice [1917] V. L. R.
36, 60.

"Re Anderton (190S) 8 West R. 319 (Al.), where the authorities
are fully set out: Bradshaw v. Patterson (1911) 18 West. R. 402 (Sns).
See also Aust. Torr. Syst. 721. 722, 770, cited with approval in Re Ander-
ton. The theoretical side of the law of ownership of land is dealt with in
25 L. Q. R. 178 (1909>— "The effect of Tenure on Real Property Law."

"L. Is. 1886 (1914), s. 14. And see as to Jamaica-^J. 1888, s. 22,
post, p. 54.

■ Att.-Gen. v. Love H8981 A. C. 679, New South Wales: Riddiford v.
Rex [1905] A. C. 147, New Zealand : Emmerson v. Maddison [19061 A. C.
569. New Brunswick; Att.-Gen. v. Bristowe (1880) 6 A. C. 143, British
nonduras. In Victoria the title of the Crown to land cannot now (since
1907) be affected by adverse possession: Real Property Act 1915 (No.
2719) s. 17.

• Walker v. Smith (1907) 7 S. R. (N. S. W.) 400 (where the- tide
to the land the subject of Att.-Gen. v. Love was forced on a purchaser),
follg. Tuthill v. Rogers (1844) 1 J. & L. 36. 68 R. R. 223.

36 INITIAL REGISTRATION. [Ch.H.

ownership of " any estate or interest " in land — as in the Canadian
systems — there seems to be no reason why a fee simple or other
estate acquired by adverse possession against the Crown should not
be sufficient qualification, as in the case of adverse possession against
private persons. In some statutes, too, the existence of a title
otherwise than by actual grant from the Crown seems to be implied,
as in Saskatchewan, Alberta, North-West Territories, Trinidad-
Tobago.63 In the Australasian systems a difficulty is caused by
enactments to the effect that it is only land u alienated from the
Crown " that can be. the subject of initial registration. Although
" alienate " does not necessarily mean " grant," 64 the necessity for
an actual grant by the Crown seems to be assumed in these enact-
ments. But if this is so, a title might even have been judicially
declared to be good and yet remain unregistrable.65

The applicant may, in the majority of the systems, have the
initial registration effected in the name of a nominee.66 The juris-
dictions in which no reference to this is made are: Ireland, British
Columbia, British Honduras, Leeward Islands. In England and
Ontario the applicant is expressly permitted to " have registered in
his stead * a " nominee " ; the only other jurisdiction in which the
word " nominee " is used seems to be Jamaica, and the reference is
incidental only.67 In nine jurisdictions — New South Wales,
Queensland, South Australia, Tasmania, Victoria, Western Aus-
tralia, New Zealand, Trinidad-Tobago, and Jamaica,68 it is en-
acted that the certificate of title on initial registration may be
issued to such person as the applicant directs; a conveyance of
the land by the applicant to another person pending the registra-
tion will be treated as a direction to register the latter as owner."
In Manitoba 70 the direction to register another in place of the

"Al. 1906, s. 27, and Can. 1906, s. 55, both referring to land "which
otherwise had prior to that date passed from the Crown." and so Sas. 1909,
s. 49 (not re-enacted in Sas. 1917, s. 31) ; Tr. 1902, s. 10, " all other lands
within the colony."

"The meaning of "alienation" from the Crown was much discussed
in Ilegarty v. Ellis and Iliggins v. Berry (1908) 6 C. L. R. 264, 618. It
was held to mean formal grant in fee in Re Irish (1888) 2 Man. R. 361.

•* Walker v. Smith (supra) is an illustration of such a title judicially
held good.

"Illustrations are: Kemp v. Douglas (1875) 1 V. L. R. 92; Fother-
ingham v. Archer (1868) 5 W. W. & a'B. L. 95; Hay v. Nixon (1891)
7 Man. R. 579.

"Eng. 1875. ss. 5, 11: On. 1914, ss. 6, 16; J. 1888, ss. 22, 25.

«N. S. W. 1900, s. 17; Q. 1861. s. 18: S. A. 1886, s. 37; Tas. 1*62,
s. 20; V. 1915. ss. 24, 32; W. A. 1S93, ss. 25, 33; N. Z. 1915, ss. 24, 27;
Tr. 1902, s. 14; J. 1888. s. 35.

• Ex p. Murray [19131 V. L. R. 546. Apparently this would not be
so in East Africa: Macmillan v. Att.-Gen. (1912) 4 Ea. Af. R. 120. In
Park v. Dunn T1916] N. Z. R. 761, the applicant in effect parted with his
interest by making a declaration of trust. 70 M. 1913, s. 38.

Sect. 1] REGISTRABLE INTERESTS. 37

applicant operates, by express enactment, to transfer to the nomi-
nee " all the estate or interest whether legal or equitable " of the
applicant. In Saskatchewan, Alberta, and North-West Terri-
tories,71 the authority for registration of a nominee is only implied
by being referred to in the forms in the schedules to the statutes.

The substitution of a nominee for the applicant on the register
is in effect, even where not so enacted (as is expressly done in Mani-
toba) a transfer of the property to the nominee, and may be liable
to duty under Stamp Acts.72

The preceding observations apply to the case of a beneficial
owner. But the legal ownership may be vested in the applicant
by way of mortgage only. In that case the consent of the mort-
gagor to the application would usually be required, unless the ap-
plication were made merely in pursuance of a sale under the mort-
gage. The majority of the statutes enact that a mortgagee can
only apply in exercise of his power of sale, it being in some cases
also expressly provided that the person to be registered as owner
must be the purchaser; such a provision seems to be implied in all
such cases.

In England a mortgagee "may authorize the purchaser to
make an application to be registered," and this has given rise to
difficulties which are avoided in the corresponding Ontario enact-
ment.7* In Ontario a mortgagee cannot * himself apply to be reg-
istered," but, if he has a power of sale, can either authorize a pur-
chaser from himself to apply for registration, or himself apply to
have the owner of the equity of redemption registered.

In New South Wales, Queensland, South Australia, Tasmania,
and New Zealand,74 the mortgagee can only apply in exercise of his
power of sale — it being implied that the registration is to be in the
name of the purchaser. So in Victoria, Western Australia, Trini-
dad-Tobago, and Jamaica,75 the mortgagee can only apply in exer-
cise of his power of sale, but it is expressly added that the certifi-
cate of title is to issue to the purchaser. These cases of applica-
tions by mortgagees are merely variations of applications for the
registration of a nominee, already referred to.

In Manitoba, Saskatchewan, Alberta, and North-West Terri-
tories, a mortgagee may apply independently of the mortgagor by

n Sas. 1917. sch. 2 f. B : Al. 1906, sch. f. F ; Can. 1906, sen. f. P.

"See Exp. CUanold (1884) 5 N. S. W. 176, where the actual appli-
cant was the purchaser.

w Eng. 1875 s. 68 : On. 1914, s. 7. See Br. & Sh. 211.

"N. S. W. 1900. s. 14: Q, 1861. s. 16: S. A. 1S86. s. 28: Tas. 1863,
s. 4; N. Z. 1915. s. 20. An illustration is In re Daris (1867) 1 S. A. R 67.

WV. 1915, s. 18: W. A. 1893, s. 20; Tr. 1902. s. 11; J. 1888, s. 19.

38 INITIAL REGISTRATION. . [Ch. EL

virtue of having an " estate or interest in land," and in Manitoba
the " application may in the discretion of the district registrar be
made by the mortgagee or incumbrancee." 76

In Ireland, British Columbia, British Honduras, and Leeward
Islands, nothing is said as to initial applications by mortgagees,
except that in Ireland and British Columbia " a mortgagee might
apply for his security to be entered on one of the subsidiary regis-
ters set up by the statutes.

6. There are several cases in which an applicant may have good
reason for offering an equitable title only. The bare legal estate
may be outstanding, and the whole beneficial interest in the appli-
cant.78 On the other hand, the land may be subject to mortgage
and the legal estate vested in the mortgagee. The land is then
registered with the mortgage entered as an incumbrance on it, but
in some jurisdictions the formal consent of the mortgagee is essen-
tial to the application, viz., New South Wales, Queensland, South
Australia, Tasmania, Victoria, Western Australia, New Zealand,
Trinidad-Tobago, Jamaica.79 A mortgagee with the legal estate
might have possession of the title deeds, whilst his right to recover
the debt was barred by lapse of time. Whether his consent under
such circumstances would be necessary seems not to have been
decided, though the consent of a statute-barred equitable mortgagee
by deposit has been held not to be necessary.80

Perhaps the most common case of an equitable title being
offered is where the applicant has recently purchased the land and
not yet received his conveyance. This, though believed to be a
common case in nearly all jurisdictions, seems only to be expressly
provided for in seven: England, Ireland, Ontario, New South
Wales, Victoria, Western Australia, and Jamaica.81 In England,
Ireland, and Ontario, the application can only be made with the
consent of the vendor. In New South Wales the vendor may also
consent, but his consent is not required if the whole of the purchase
money has been paid, and this would be the ordinary rule in other

"M. 1913, ss. 28, 122 (4) ; Sas. 1917, s. 31: Al. 1906, s. 27: Can.
1906, s. 55: Bucknnm v. Stewart (1897) 11 Man. R. 491.

"I. 1891, s. 54; B. C. 1911. ss. 29, 104.

"Illustrations are: In re Eaton (1879) 1 Q. L. J. Snppl. 9. appli-
cant held entitled to a vesting order; In re De Lauret (1900) 10 S. R.
(N. S. W.) 240. equitable estate tail; Tomlinson v. Cooper (1908) Jamaica,
unreported, gift without words of limitation, resembling In re Oliver's Settle-
ment [19051 1 Ch. 191.

'•See notes 74 and 75, ante.

**Barnet v. Williams (1889) 15 V. L. R. 205.

«Eng. 1S75. ss. 5. 11; 1. 1891, s. 30 (7) ; On 1914, ss. 6 (2). 16 <1> ;
N. S. W. 1900, s. 14 (3) ; V. 1915, s. 45 : W. A. 1893. s. 46; J. 1888, s. 39,
and 1894, s. 1 (s. 35 of J. 1889 is repealed by J. 1900).

Sect. 1] REGISTRABLE INTERESTS. 39

jurisdictions. In Victoria, Western Australia, and Jamaica, the
case of an ordinary purchaser is not thus expressly provided for,
but only the case of a purchaser of the fee simple at a sale by the
Court; the decree, confirmation of sale, and certificate of payment
of purchase money, are made sufficient evidence of title. In Ja-
maica any purchaser may also (in the absence of stipulation) re-
quire his vendor to cause him to be registered, instead of making
a conveyance of the land.

The application of a purchaser with the consent of his vendor
is practically the same thing as the substitution of a nominee,
already referred to (ante, p. 36). And — whether the applica-
tion is made with the vendor's consent, or solely by virtue of the
purchaser's equitable ownership after payment of purchase money
and receiving possession — a transfer of property is effected which
may be dutiable under Stamp Acts.81

An equitable title sufficient for initial registration is also con-
stituted in some jurisdictions by documents evidencing payment
for land purchased from the Crown, or authorizing the issue of
grants from the Crown or their statutory substitutes.88 The regis-
tration of these documents constitutes a kind of provisional regis-
tration of the land (it is styled "provisional registration " in New
Zealand), and transactions can be registered pending the issue and
registration of a formal grant.84

c. The jurisdictions in which a power of disposition is sufficient
title for initial registration are: England, Ireland, Ontario, New
South Wales, South Australia, Victoria, Western Australia, New
Zealand, Trinidad-Tobago, and Jamaica. In Trinidad-Tobago85
the power is "a general power of appointing by deed" the "fee
simple in possession either at law or in equity." In other juris-
dictions more than this one case is provided for.

nEm p. CUsKold (1884) 5 N. S. W. 176. Other instances of pnr-
chasers* applications are: Roberta v. Balfour (1892) 18 V. L. R. 140;
In re Salter (1871) 2 V. R. L. 113. And see Br. & Sh. 6. 144, 224, 371;
Own. & Inc. 52: Eng. 1903-8 Rules, r. 21. In New Zealand the question
of stamp duty is expressly dealt with by statute: Stamp Duties Act 1908
(No. 1S2) s. 80, sch. 2 "Land transfer." So in Ireland: I. 1891, s. 80.

■Aust. Torr. Syst 726; N. Z. 1915, ss. 1019, 46 50, 239; Appx. IX,
and notes in Hutch. 49 et *eq.; V. 1915. ss. 16, 77; Sas. 1917, s. 100; AL
1906, s. 60 (2) : Can. 1906, s. 95.

"•Illustrations are: In Australia — Fitzgerald v. Archer (1864) 1
W. \V. & a'B. L. 40: Att.-Gen. v. O'Sulliron (1878) 11 S. A. R. 90;
Donaldson v. Noble (1888) 14 V. L. R. 1021, 1042. And see Aust. Toit.
Syst. 727. Cases in Canada— Re Irish (1885) 2 Man. R. 361: Re Can-
adian Paeifir Ry. (1809) 4 Terr. R. 227 ; Re International Harvester Co.
(1909) 9 West R. 680.

"Tr. 1902, s. 10.

40 INITIAL REGISTRATION. [Cu. n.

In England and Ontario 86 the applicant may either be " cap-
able of disposing for his own benefit by way of sale" of freehold
or leasehold land, or may be a "person having a power of selling
land " as trustee or otherwise (excluding, in Ontario, a mortgagee).
Applications by trustees and mortgagees have already been referred
to (ante, pp. 32, 37). In Ireland " applicants with powers of dis-
position are not expressly mentioned, but it is impliedly enacted
that a person with the powers of disposition conferred by the Set-
tled Land Acts may apply for initial registration. In England the
" power of selling land " conferred on a tenant for life by the Settled
Land Acts enables a tenant for life to apply for initial registration
under s. 68 of the 1875 Act. In Ontario the corresponding enact-
ment (s. 7 of the 1914 Act) has not the same effect, since there is
no legislation exactly like the Settled Land Acts.88 The provisions
of the English and Ontario statutes relating to powers of disposi-
tion " for his own benefit " will cover the case of a donee of a bene-
ficial power of appointment.

In Victoria, Western Australia, and Jamaica,89 the power is one
"of appointing or disposing of" the fee simple, no restrictions be-
ing mentioned. Literally, this would include the case of a tenant
for life with an express or a statutory power of sale, but in Vic-
toria, Western Australia, and Jamaica, the case of a tenant for life
is separately provided for, and it has accordingly been held in West-
ern Australia that this clause does not include the case of a tenant
for life or other person having any actual estate in the land, but is
intended to apply only to persons who have merely a power with-
out ownership, and only to those who have unconditional and un-
restricted powers.90

In New South Wales and South Australia the power referred
to is also one to appoint or dispose of the fee simple, but the appli-
cation for initial registration is to be an exercise of the power; in
New Zealand the power is one " to dispose of the fee simple," but
any consent necessary to the exercise of the power must be given.91
These provisions also appear to apply only to persons who have a
power merely and no life estate or other ownership.92

vii. Persons under legal disability may apply for initial regis-
tration as well as those of full capacity. Coverture is rapidly ceas-

••Enjr. 1875, ss. 5, 11, 68, and see 1897, s. 6; On. 1914, ss. 6, 7, 16.
"I. 1891, ss. 28, 71.

«*The Settled Estates Act (R. S. 1914. c. 74) is modelled on the
English Settled Estates Acts and not the Settled Land Acts.
•V. 1915, s. 18: VV. A. 1893. s. 20; J. 1888, s. 19.
90 North v. Commr. of Titles (1905) 7 W. A. R. 215.
"N. S. \V. 1«W. s. 14 (?.) : S. A. 1886, s. 27; N. Z. 1915, s. 20 (1).
■ North v. Commr. of Titles, supra.

Sect. 1] REGISTRABLE INTERESTS. 41

ing, even under the general law, to be a disability in the proper
sense of the word ; the policy of the registration statutes is to regard
a married woman as unmarried with respect to her separate pro-
perty, and the husband's interest (if any) as merely a right of pro-
perty in the land. In many jurisdictions no reference is made to
married women being applicants for initial registration. In others
there is, as in British Columbia and Leeward Islands,98 only an
implied reference in the directions for execution « documents by
married women.

In Ontario 94 a married woman " shall for the purposes of this
Act be deemed a feme sole." In most jurisdictions enactments
modelled on the English Married Women's Property Acts ire in
force, and must be taken to override any general enactment on the
subject contained in the registration statutes; in one jurisdiction
(North-West Territories) such an enactment is actually placed in
the registration statute itself, and in another (Ireland) the Mar-
ried Women's Property Act is in effect incorporated in the regis-
tration statute.95 Thus, in most jurisdictions the consent of the
husband to the wife's application is only required when he has
some interest in the land, that is, where the lanl is not her separate
property. Queensland is an exception, and apparently also British
Honduras.96 The husband's consent is expressly made unneces-
sary where the land is the wife's separate property (sometimes also
where she has a power of appointment) in the following jurisdic-
tions: England, New South Wales, South Australia, Victoria,
Western Australia, New Zealand, Trinidad-Tobago, and Jamaica.97

With respect to disabilities in the proper sense — infancy and
lunacy, &c. — only in British Columbia and Leeward Islands is
there no mention in the statutes of applications on behalf of in-
fants and lunatics. In the seven Australasian jurisdictions which
provide for voluntary applications, and in Manitoba, Trinidad-
Tobago, and Jamaica, authority to make these applications is con-
tained in the enactments authorizing initial applications generally.
In England, Ireland, Ontario, Saskatchewan, Alberta, North-

"B. C. 1911, ss. 80, 81; L. Is. 1886 (1914) ss. 151, 152.

"On. 1914, s. 103.

* Can. 1906. s. 16 ; I. 1891. s. 73. As to the over-riding effect of M. W.P.
Acts, see Aust. Torr. Syst. 731, 990; Eraser v. Douglas (1908) 40 Can.
S. C. R. 3S4.

"Q. 1861, s. 16: B. IT. 1914. s. 37. In Tasmania these words of the
Queensland Act have been repealed: Tas. 1863. s. 4. and 1886, s. 37.

•'Ens. 1875. s. 87: N. S. W. 1900. s. 14 (4) ; S. A. 1886, s. 28: V.
1915. s. 18: W. A. 1893. s. 20; N Z 1915. s. 20 (2) ; Tr. 1902, s. 11 (the
M. VV. P. statute being mentioned) : J. 1888, s. 19.

42 INITIAL REGISTRATION. [Ch. n.

West Territories, and British Honduras,98 authority is given by
comprehensive enactments in the statutes or rules for the repre-
sentation of infants and lunatics.

SECTION 2 PROCEDURE ON INITIAL REGISTRATION.

Initial registration is either compulsory or voluntary, and the
"compulsion" may be either direct or indirect. But whether
compulsory or voluntary, and whatever the method of compulsion,
the registration consists of the same two operations — placing the
land on the register, and declaring the title of the owner {ante,
P- 24).

The registration may be said to be effected by direct compulsion
when no application has to be made, or any action (other than a
possible payment of fees) taken by the owner, but the land is sim-
ply placed on the register when completely vested in him.1 Com-
pulsory registration of this kind is provided for in some jurisdic-
tions upon public land being vested in private persons, and upon
private land being expropriated for public purposes.

Upon grant from the Crown or State (or the statutory equiva-
lent of such a grant) land is thus compulsorily registered in all
nine Australasian jurisdictions and in the following: Ontario (in
certain districts), Manitoba, Saskatchewan, Alberta, North- West
Territories, Trinidad-Tobago, Federated Malay States.2 In Papua,
Fiji, and Federated Malay States there is no other method of in-
itial registration ; all land on being granted by the Crown or State
is at once registered without any application on the grantee's part.
In South Australia, Victoria, Western Australia, Papua, New Zea-
land, Ontario, and Federated Malay States, the "grant" may be
for a term of years as well as in fee, and even in the absence of ex-
press enactment a "grant" by the Crown for a term of years is
registrable.8 The system of provisional registration pending the
issue of a grant from the Crown has been referred to in Section 1

"Eng. 1875, s. 88; I. 1891, ss. 74. 75, and 1910 O. 10; On. 1914. a.
104; Sas. 1917. s. 203; Al. 1906, s. 133; Can. 1906, s. 165; B. H. 1914,
s. 38.

1 Aust. Torr. Syst. 736 ; Burns v. Registrar of Titles [1912] V. L. R.
29.

■N. S. W. 1900, s. 13; Q. 1861, s. 15; S. A. 1886, ss. 26, 91-95: Tag.
1863, s. 3; V. 1915, s. 16; W. A. 1893, s. 18, and 1909, s. 3 ; P. 1913. s.
32; N. Z. 1915. ss. 10-18. and Land Act 1908 (No. 94) s. 90. and notes in
Butch. 49 et seq.\ Fi. 1876 (1906) s. 9; On. 1914, ss. 159-162; M. 1913,
s. 29 : Sas. 1917 ss. 46-48 ; Al. 1906, s. 26 ; Can. 1906. ss. 49-53 ; Tr. 1902,
s. 9; F. M. S. 1911, ss. 5, 27

» In re Land Titles Act (1913) 24 West. R. 385 (Al.). An instance of
•a Crown lease beins under the registration statute at once is Commercial
Bank v. Carson (1880) 6 V. L. R. 310, 315.

Sect. 2] PROCEDURE. 43

in connexion with equitable interests as registrable initially (ante,
p. 39).

Kegistration on expropriation for public purposes is provided
for in the following jurisdictions: New South Wales, Victoria,
Western Australia, New Zealand, Saskatcnewan, Alberta,4 and pro-
bably in some other jurisdictions similar provision is made by gen-
eral legislation. So where disused roads or other public lands are
appropriated for private use and vested in private owners,6 the
land is at once placed on the register without formal application.

Eliminating Papua, Fiji, and Federated Malay States — where
all initial registration is compulsory — there remain nineteen juris-
dictions in which initial registration is wholly or partially volun-
tary. In four of these it is wholly voluntary, no initial registra-
tion being directly compulsory: British Columbia, British Hon-
duras, Jamaica, Leeward Islands. With respect to British Colum-
bia, although the initial registration of land and its title is volun-
tary, the registration of instruments is indirectly enforced, a sys-
tem of deed registration being combined with title registration.*
In Jamaica,7 in lieu of a grant from the Crown " it shall be suffici-
ent for the Governor to issue directions to the registrar to regis-
ter the proposed grantee as the proprietor of the land." This
seems in practice to be taken as giving a grantee the choice of a
registered or unregistered title. In Leeward Islands 8 this choice
is expressly given.

In England and Ireland initial registration is in some cases
indirectly compulsory, but otherwise voluntary. In thirteen jur-
isdictions the system of direct compulsion exists side by side with
the voluntary system: New South Wales, Queensland, South
Australia, Tasmania, Victoria, Western Australia, New Zealand,
Ontario, Manitoba, Saskatchewan, Alberta, North- West Territories,
Trinidad-Tobago.

What is meant by direct compulsion has already been explained.
Indirect compulsion must now be referred to, as part of the system

4 Illustrations are: New South Wales — Darling Harbour Land Titles
Act 1907 (No. 10) ; Victoria— Local Government Act 1015 (No. 26«6) ss.
&38. 339: Western Australia— Public Works Act 1902 (No. 47) s. 23;
New Zealand— Public Works Act 1008 (No. 160) s. 24: Sas. 1017. ss.
80. 00: Al. 1006, s. 26 (7). See Tully v. Carterton (Borough) (1005) 25
N. Z. R. 236.

•Aust. Torr. Syst. 738. New South Wales — Centenary Park Sale
(Conveyancing) Act 1005 (No. 6) ; Victoria— V. 1015. s. 46, and Local
Government Act 1915, ss. 480. 485: Alberta— Al. 1006. s. 26 (6).

•B. C. 1011. ss. 104, 105; Howard v. Miller M9151 A. C. 318 (ss.
104 and 105 being re-enactments of ss. 74 and 75 there referred to).

• J. 1889, s. 3. See Report of registrar of titles in Gazette of 21 May,
1914. 8L. Is. 1886 (1914) s. 7.

44 INITIAL REGISTRATION. [Ch. II.

of initial registration in England and Ireland. Tn England initial
registration is "compulsory on sale" of land (freehold or lease-
hold) within certain areas, except incorporeal hereditaments, sev-
ered mines, some leaseholds and other interests; in Ireland it is
"compulsory" when any land (freehold or leasehold) has at any
time been sold and vested in a tenant-purchaser under the Irish
Land Acts subject to a charge for instalments of purchase money;
in these cases a purchaser does not, until registered as owner, ac-
quire by his conveyance or grant (in England) the "legal estate"
or (in Ireland) "any estate" in the land or lease.9

The procedure in England and Ireland for obtaining initial
registration is not affected by any difference between compulsory
and voluntary registration, but it is a matter of practical import-
ance to a purchaser of unregistered land to know whether the land
is subject to the compulsory enactments. The land may belong to
the class of land that is compulsorily registrable, and yet may fall
within one of the excepted cases. The English and Irish statutes
differ on both these points. Compulsion in Ireland only applies to
land purchased by tenants under the Land Acts and charged with
instalments of purchase money,10 and of that class only to corporeal
hereditaments. A fee-farm rent conveyed by the owner to the ten-
ant in fee-farm does not require initial registration.11 In England
the classes of land and the exceptions are more numerous, and the
subject is dealt with in the special text-books.12

There are also differences between the English and Irish enact-
ments with respect to the nature of the transaction that will make
initial registration necessary. The penalty for non-registration is
in each jurisdiction that the conveyance does not have its intended
effect. In England it is only a " conveyance on sale " that, until
the owner is registered, does not vest in him the " legal estate "; in
Ireland " any conveyance " fails, until the owner is registered, to
vest in him " any estate " in the land. The net spread by the Irish
enactments is by far the wider. The difference between " legal
estate " and " any estate " is particularly important. In England
the conveyance of an interest other than the legal estate would not
necessitate initial registration. In Ireland the conveyance of even
an equitable interest would make it necessary for the purchaser to

•Eng. 1S75, s. 11: 1897, ss. 20, 24 (1) ; 1903-8 Rules, rr. 68-70. I.
1891. ss. 22, 25, 5.°,, 95: and see Irish Land Act 1903 (3 Edw. 7, c. 37)
ss. 49, 54, and 69 of which refer to registration of title.

"I. 1891, ss. 22. 53, 95.

11 In re Kcogh and Kettle H896] 1 I. R. 285.

•*Eng. 1875, s. 11 (am. 1897) : 1897. ss. 20, 24 (1); 1903-8 Rules,
rr. 68-70. Own. & Inc. 58-69. Br. & Sh. 337-343.

Sect. 2] PROCEDURE. 45

apply for registration, since otherwise he would take no actual
estate legal or equitable in the land.13

With the initial registration of land placed on the register by
public authorities — direct compulsion — the owner of the land has
little to do, except to pay any fees that may be due at the registry.
There are, however, a few points in the final stage of voluntary
registration that also apply to registration under direct compulsion.
These concern: (1) The actual time of the registration taking
effect; (2) The relation back of the registration in some cases; (3)
Outstanding interests in persons other than the owner; (4) The
issue of a duplicate document of title; (5) The statement on the
register of an owner being under disabilities. These matters are
dealt with in describing the final stage of initial registration upon
a voluntary application.

The procedure in Jamaica and Leeward Islands 14 when a regis-
tered title is elected to be taken on grant from the Crown differs
little from the compulsory registration just referred to.

The procedure on indirect compulsory registration in England
and Ireland requires no special mention, since it is the same as on
voluntary applications, though sometimes more troublesome by
reason of the necessity for protecting the interests of persons other
than the applicant himself. In Ireland the Land Commission may
make the application on the owner's default in doing so, and notice
of cases requiring compulsory registration is sent to the registry;
the forms of application for initial registration also vary, accord-
ing as the registration is compulsory or voluntary.15

The procedure for initial registration upon ordinary voluntary
applications has now to be dealt with. As already stated (p. 43)
there are nineteen jurisdictions in which this system prevails: Eng-
land,16 Ireland,17 New South Wales, Queensland, South Australia,

"Tn re Furlong and Bonan's Cont. (1803) 31 L. R. I. 191: Pirn v.
Coyle ri9071 1 I. R. 330: Mnoney v. McMahon [1911] 1 I. R. 125.
MJ. 1889, s. 33: L. Is. 1886 (1914) s. 37.
■I. 1891. ss. 22, 23: 1910 O. 2. rr. 1-5, ff. 3, 4.

M In England application for initinl registration may' also be made by
a County Council in virtue of s. 13 of the Small Holdings and Allotments
Art 1908 (c. 30). This section re-enncts s. 19 of the Land Transfer Act
1897. and other sections re-enact the Small Holdings Act 1892. As to the
latter Act and rules under it, see Br. & Sh. 540-559 ; Own. & Inc. 68, 72. 273.

■ In Ireland the Small Dwellings Acquisition Act 1899 (c. 44) applies,
as modified by s. 14, and by s. 15 a local authority is to effect initial
registration in respect of property on which an advance is made. The
section, however, makes the singular mistake of assuming that the Land
Transfer Acts 1875 and 1897 apply to Ireland. The Orders and Rules of
1910 under the Act make the same mistake, since (O. 15) they refer to
" absolute," " qualified " and " possessory " title, which are not provided
for by the Local Registration of Title (Ireland) Act 1891.

46 INITIAL REGISTRATION. [Ch.ii.

Tasmania, Victoria, Western Australia, New Zealand, Ontario,
British Columbia, Manitoba, Saskatchewan, Alberta, North- West
Territories, British Honduras, Trinidad-Tobago, Jamaica, Leeward
Islands. In every one of these, except Manitoba, a form of appli-
cation is prescribed by the statute itself or rules made under it.
These forms are in substance identical, though different in detail.
They contain a short statement of facts shewing the applicant's
title and who is in possession, a request for the land to be placed
on the register, and a claim to have the applicant or a nominee
registered as owner. The formal application has usually to be veri-
fied by statutory declaration or affidavit, or by being attested by an
official witness. No such verification is provided for in Manitoba
or British Honduras; it is only required in England and Leeward
Islands when a " possessory " title is applied for.

In England, Ireland, and Ontario,18 the forms of application
are prescribed by rules, and not in the statutes themselves. These
forms do not refer so expressly to the entry of the land on the
register (though this is done by one of the Irish forms) as in some
other jurisdictions, the registration of the applicant as owner being
more prominent. But the reference to " registered " land, and the
possibility (in England) of removing the land "from the register,"
make it clear that the application is one for the placing of the land
on the register for all purposes, as well as the entry of the applicant
as owner.

In Manitoba 19 no form of application is prescribed, but the
application is for registration of the owner's title " under the new
system," and there are frequent references in the statute to the
land being thus {i brought under the provisions of the new system *
and being " subject to the provisions of the Act."

In British Columbia, British Honduras, and Leeward Islands,20
the form prescribed is framed somewhat as under the English stat-
ute— an application for registration of applicant's title rather than
the land, but the statutes clearly shew that the land is to be placed
on the register.

In the remaining twelve jurisdictions — New South Wales,
Queensland, South Australia, Tasmania, Victoria, Western Aus-
tralia, New Zealand, Saskatchewan, Alberta, North-West Terri-

uEng. 1875, ss. 5, 6, 11, 82; 1903-8 Rules, rr. 18-53, 71-77, ff. 1-4;
Own. & Inc. 69-85. I. 1891, ss. 22, 26, 27 ; 1910 O. 2 ; ff. 3-5. On. 1914,
ss. 6-8, 16; 1911 Rules, rr. 2-5, ff. 1-4.

MM. 1913, s. 28.

»B. C. 1911, ss. 14, 16. 44, 46, sch. 1 ff. A, N; B. H. 1914, s. 3,
sch. B; L. Is. 1886 (1914) ss. 12, 128, 131, scb. f. 1.

Sect. 2] PROCEDURE. 47

tories, Trinidad-Tobago, and Jamaica 21 — the application is one to
have the land brought under the operation or provisions of the
statutes, and a certificate of title issued to the applicant or his nomi-
nee. Here the two parts of the application are clearly distin-
guished.

With respect to the registration of the land itself, some provi-
sions must be noticed that relate to the method of describing it, the
furnishing of a plan, and the area and situation of the land. In
four jurisdictions only is any particular method of description
provided for. In England and Ireland 22 the basis of all descrip-
tion of land on the register is the ordnance map; no provision is
made in Ireland for other official maps, but in England land is to
be described by means of special maps kept at the registry or a sepa-
rate map or plan for individual parcels, and a similar practice
seems to obtain in Ireland. In Ontario 28 registered land is to be
"described in such manner as the proper master of titles deems
best calculated to secure accuracy," but a plan is not made essen-
tial. In Jamaica 24 the land may be described " by plat or dia-
gram, by metes and bounds," or by " reputed name," though a
description merely by " reputed name " has been said to cause
" difficulty and inconvenience." 25

As to the furnishing of a plan of the land comprised in the
application, in Jamaica (as above stated) this may be done at the
option of the applicant, and so in British Honduras.2'' In England
and Ireland the use of a plan is compulsory to the extent stated
above, and in New Zealand and Trinidad-Tobago 2T a plan must be
filed with the application. In New South Wales, Queensland,
South Australia, Tasmania, Victoria, Western Australia, and Lee-

» N. S. W. 1900. ss. 14, 16. 114. sch. 2 ; Q. 1861, ss. 16, 17, 120, sch.
A ; S. A. 1886, ss. 27. 29, 30, 220. sch. 2 ; Tas. 1862, ss. 15, 104. and 1863,
s. 4, sch. A j V. 1915, ss. 18, 38, 109, 113, 201 et seq., sch. 2 ; W. A. 1S93,
ss. 20, 39, 156 et seq., sch. 2, and 1909, s. 4; N. Z. 1915. ss. 20, 21, 178.
sch. 2 f. A; Sas. 1917, ss. 31, 32, sch. ff. B. C. ; Al. 1906, ss. 27, 28, sch. ff.
F, G : Can. 1906, ss 55, 56, sch. ff . F, G ; Tr. 1902, ss. 10-13, sch. 1 f. A;
J. 1888, ss. 19-21, 36, sch. 1. And see Aust. Torr. Syst. 738; Can. Torr.
Syst. 68.

■ Eng. 1897, s. 14 ; 1903-8 Rules, rr. 269-282 ; Own. & Inc. 71 ; Br. &
Sh. 457. I. 1891, ss. 55-60 : 1910 O. 9 : Bro. & Gl. 17, 28, 169. 259. The
question of the conclusiveness of the defined boundaries, included in these
references, is not dealt with here.

n On. 1914, s. 98. And see s. 24, and 1911 Rules, r. 67, and preceding
note.

"J. 1888. s. 21.

M Smith v. Registrar of Titles, and Anderson v. Baker (1910) Jamaica,
unreported.

" B. H. 1914, s. 26, sch. B, the only references in the statute to a plan.

" N. Z. 1915, ss. 21, 178 ; Tr. 1902, s. 13.

48 INITIAL REGISTRATION. [Ch.II.

ward Islands,28 the filing of a plan is at the option of the registry,
and the applicant must file a plan if required to do so. In the
remaining jurisdictions — Ontario, Manitoba, British Columbia,
Saskatchewan, Alberta, and North-West Territories — no plan ap-
pears to be necessary upon an initial application, though plans
may be registered upon dealing with the land subsequently.29

As to area and situation of land, the area that may be included
in the same application is in British Columbia and Manitoba80
limited to 2,000 acres. In other jurisdictions there appears to be
no limit so far as the application itself is concerned, though con-
siderations of convenience may restrict the number of separate par-
cels to be included in one certificate of title.31 The rule has how-
ever been laid down in New South Wales (and it seems one to be
observed generally) that separate parcels of land that are not con-
tiguous cannot be included in the same application.32 The Mani-
toba enactment already referred to expressly permits "any number
of lots under the same plan of sub-division " to be included in one
application; the British Columbia enactment impliedly gives the
same permission, but forbids the inclusion of " unsubdivided lands
which are not contiguous " in a single application. In Jamaica,
whilst more than one parcel of land may be included in the same
application, each parcel held under a distinct root of title is treated,
so far as regards the fees payable, as the subject of a separate appli-
cation.33

The provision in the statutes of Tasmania, Victoria, Western
Australia, and Trinidad-Tobago,34 as to posting on the land notice
of the application when a title by possession is claimed, seems not
to have found a place in other statutes.

With respect to the registration of the owner and his title, the
applicant must usually state what his interest in the land is and

MN. S. W. 1900, s. 114; Q. 1861, s. 120: S. A. 1886, ss. 220 (8), 241;
Tas. 1862, s. 104; V. 1915, s. 201; W. A. 1893, s. 156; L. Is. 1886 (1914)
s. 145.

wOn. 1914. s. 106; M. 1913, s. 62; B. C. 1911, s. 100; Sas. 1917,
s. 79; Al. 1906, s. 53; Can. 1906. s. 83. All these enactments, except that
of Manitoba, appear to be framed on the model of one or other of the
Australian statutes (see preceding note), and to omit intentionally any
reference to initial registration.

»B. C. 1911, s. 20B; M. 1913, s. 33.

«Aust. Torr. Syst. 739; V. 1915, ss. 48, 75; W. A. 1893, ss. 49, 71.
The Manitoba enactment (s. 33) also limits the area to be included in a
single certificate of title: so in British Columbia: B. C. 1911, s. 20C;
and Saskatchewan : Sas. 1917, s. 52.

"Ex p. Burnett (1864) 3 S. C. (N. S. W.) 148.

** In re Oppenheimer's Application (1912) Jamaica, unreported.

**Tas. 1898, s. 3; V. 1915, s. 23; W. A. 1893, s. 24; Tr. 1902, s. 20.

Sect. 2] PROCEDURE. . . 49

how his title to that interest is supported, what interests are vested
in other persons, and who is in occupation of the land.. Other mat-
ters to be stated are the names of adjoining owners and occupiers,
and the value of the land. The title deeds in applicant's possession
are usually required to be delivered at the registry with the appli-
cation. In the Manitoba and British Honduras statutes nothing
is said about title deeds.

In Manitoba, British Columbia, British Honduras, and Lee-
ward Islands, no provision is made for stating who is in occupa-
tion of the land. In other jurisdictions the prescribed forms of
application require particulars of the occupancy to be given, and
in several instances — New South Wales, Queensland, South Aus-
tralia, Tasmania, New Zealand — these forms contemplate that
ordinarily the land will not be held by an occupier adversely to
the applicant. Only in British Honduras, Trinidad-Tobago, and
Jamaica, is it actually provided by the statutes themselves that an
application shall not be made where the land is in the adverse
occupation of another person.85 In other jurisdictions — New South
Wales, Queensland, South Australia, and Tasmania " — the stat-
utes themselves refer to the possibility of the land being occupied
adversely to the applicant. In these jurisdictions, and also in
others — for instance, New Zealand — where the statutes are silent
on this point, an application will be entertained, and may succeed,
notwithstanding that an adverse occupation exists whether stated
or not on the face of the application.87 This seems also to be im-
plied in those statutes which (as in England, Ireland, and others88)
refer expressly to the effect of length of possession on the registered
title. The practice prescribed in British Honduras, Trinidad-
Tobago, and Jamaica, is thus opposed to the general rule; in Trini-
dad-Tobago an applicant, even after proving a good title, cannot

"B. H. 1914. s. 7; Tr. 1902. ss. 11, 26; J. 1888, s. 22. Each of
these enactments differs completely from the others. The interpretation of
the Jamn icn section may possibly be open to doubt, but seems to be that
adopted in the text. There is a reference to - adverse occupation " in s.
12 of the Tr. 1902 which appears to have crept in by mistake in adapting
an Australian statute.

*N. S. W. 1900, s. 16 (1) ; Q. 1861, s. 17; S. A. 1886, s. 29; Tasi
1862, s. 15.

"Em p. namilton (1864) 3 S. C. (N. S. W) 311: Smith v. Registrar-
General H9091 S A. R. I : In re Tlovces (1873) 1 N. Z. Jur. 112; Kelly
v. Bcntinrk (1902) 22 N Z R 235: Fergie v. Byrne (1866) 3 W. W. &
a'R. L. 56: Murphy v. Michel (1866) 4 W. W. & a'B. L. 13 (the two last
under the original statute of 1862 in Victoria).

"Ens. 1897, s. 12: I. 1891. s. 52. And see Own. & Inc. 73. The
subject of adverse possession is dealt with in Chap. III., post.

B.T.L. 4

50 INITIAL REGISTRATION. [Ch.ii.

have his application granted until he has recovered the land by
ordinary process of law,89 and this would seem to hold in Jamaica.
In other jurisdictions the ability of a person out of possession to
make an application for initial registration in effect enables a
judicial declaration of title to be made as between adverse claim-
ants, though this was not the original intention of most systems of
registration of title.40

Disclosure of others' interests in the land is required of the
applicant, as already stated. This refers to actual and substantial
interests, not mere claims and trespasses.41 Non-disclosure of a
title already ripe by long adverse possession might be regarded dif-
ferently in such jurisdictions as South Australia on the one hand
and New South Wales on the other, since in the former the regis-
tered owner would gain no title, while in the latter the registration
would (unless fraud could be proved) wipe out the title by adverse
possession.42

In England and Ontario 43 the statutes contain certain refer-
ences to the number of persons who may be registered as owners of
the same piece of land, but there is now no limit to the number.

The formal application must usually, as already stated, be veri-
fied by statutory declaration, &c. It may usually be signed by
attorney or agent, but applications by attorneys under power are
expressly provided for in New South Wales, Queensland, South
Australia, Tasmania, New Zealand, and Jamaica.44 New South
Wales provides for the cases of corporations and absentee owners,
Jamaica for corporations only, Tasmania and New Zealand for
absentees only; in every case the attorney must have power to sell
land.

In England, Ontario, British Columbia, and Leeward Islands,46
the applicant may apply to be registered with " possessory title *

"Robinson v. Loney (1898) 1 Tr. & Tob. 69.

40 At any rate as to the Australian system: Sheridan v. Gilles (18S7)
21 S. A. R. 7 ; Smith v. Registrar-General, supra. So in cases of judicial
declaration of title: In re Carson's Estate (1870) 4 I. R. Eq. 555; Re Bell
(1871) 3 Ch. Oh. 239 (On.). As an instance of an enactment contrary to
that in Trinidad-Tobago and Jamaica, see the Sudan Title of Lands Ordin-
ance, 1899, s. 2 : " Every person claiming to be entitled to land of which he is
not in possession*' &c.

« In re Tanner (1886) 5 N. Z. S. C. 102; In re Beckett (1894) 15
N. S. W. 94.

«* S. A. 1886, s. 69 (6) ; N. S. W. 1900, s. 45. On the relation between
registration and adverse possession, see Chap. III., post.

• Eng. 1875, s. 83, repealed by 1897. s. 14 ; On. 1914, s. 97, and 1911
Rules, r. 53.

"N S. W. 1900, s. 14 (2) (d, e) ; Q. 1861, s. 93; S. A. 1886, s. 27;
Tas. 1863, s. 4 ; N. Z. 1915, s. 20 (1) (f) ; J. 1888, s. 19.

« Eng. 1875, s. 5, and 1903-8 Rules, r. 52 ; On. 1914, s. 6 ; B. O. 1911,
s. 14; L. Is. 1886 (1914), ss. 124-126.

Sect. 2] PROCEDURE. 51

only, called in British Columbia registration of the " absolute fee/'
For the purposes of the application this only means that investiga-
tion of the title offered, and the full state warranty founded on
that investigation, are uot asked for. In British Columbia regis-
tration must be with fully warranted title if the land is comprised
in an unregistered Crown grant, and registration with any other
title may be prohibited in certain districts; under-surface rights
are in each case excepted.48

In England, Ontario, and Leeward Islands,47 the applicant may
also apply to be registered with " qualified " title (including in
England "good leasehold title"). Here investigation of the title
offered is asked for, but full State warranty is to be subject to ex-
ception in respect of some specified matter or defect in the title. In
England, Ireland, and Jamaica,48 it is further provided that regis-
tration with qualified title may also be made upon an application
for fully warranted or unqualified title, and in British Columbia 49
registration with possessory title (the " absolute fee ") upon an
application for fully warranted or " indefeasible " title. The en-
actment in Ireland differs in form from others, being merely an
authority to the registrar to dispense with ascertaining equities and
burdens affecting the land, but the principle of a statutory distinc-
tion between unqualified title with full State warranty and quali-
fied title with modified State warranty is precisely the same as in
other jurisdictions.50

In all jurisdictions the registration of an applicant's title may
always at his option be made subject to some stated qualification or
exception. Whether the registration be with " possessory " or
" qualified " title of any kind, the difference between this and reg-
istration without qualification — that is, with a title, whatever
called, which carries the full State warranty given by the particular
statute concerned — is simply a matter of degree. The title is reg-
istered either without qualification or as subject to some qualifica-
tion greater or less. In some cases the title offered is to be fully
investigated, in others it is not. The procedure in either case is,
with this exception, substantially the same.

In one jurisdiction — British Honduras — a fully warranted
title cannot be had at once, the title registered being at first prima

•B.-C. 1911, ss. 15, 17, 173 (d).

"See note 45.

•Eng. 1875, s. 9, and 1903-8 Rules, rr. 53, 54; I. 1891, s. 29 ; J. 1888,
ss. 16, 22.

•B. C. 1911, s. 14.

■•I. 1891, s. 29; 1910 O. 5; In re Keogh and Kettle [18961 1 I. R-
285 ; In re Hazlette [1915] 1 I. R. 285 ; In re Owen Smith [1917] 1 I. R.
170. See notes in Bro. & Gl. 132-134.

52 INITIAL REGISTRATION. [G«t;ll.

facie only and not fully warranted until the lapse of an interval
varying from two to ten years; British Honduras is also peculiar
in providing for the registration of legal titles only, equitable in*
terests being expressly excepted from actual registration.51

Amending the description of the land by making it more ac-
curate has some resemblance to obtaining a fuller State warranty
by converting a " possessory " or " qualified "title into an unquali-
fied one. In England and Ireland 52 the position of the boundaries
may be fixed accurately and made conclusive subsequently to the
making of the initial application, and in Jamaica 68 a subsequent
application may be made for registration by plan. In England,
British Columbia, and Leeward Islands,64 a qualified title may be
converted into a fully warranted title on the register, and in Ire-
land the qualified title may be turned into a fully warranted cne
by the ascertainment of the actual burdens affecting the land.65

The question has been raised whether the making of a formal
application for initial registration is so far i:i the nature of litiga-
tion as to stop any statute of limitation running in favour of an
adverse occupant.56 On the whole, the better opinion seems to be
that no such effect is produced by an application merely, and that
the application for registration is not in itself in the nature of liti-
gation for this purpose. Where the statutes refer to any conflict
between registration and possession, it is the actual time of regis-
tration that is made the turning point.57 It is not until the appli-
cation is opposed that litigation can be said to begin, the entering
of a caveat being " really in the nature of the initiation of litiga-
tion." 58

The whole procedure of initial registration may be divided into
three stages. The first stage is to examine the application and
ascertain how far sufficient ground has been shown prima facie for
registering the land with the applicant as its owner. The second

MB. H. 1914, ss. 9, 15, 16, 40, sch. D. The plan of postponing the
full effect of registration is found also in the Ceylon Land Registration
Ordinance 1907.

" Eng. 1897, s. 14, and 1903-8 Rules, rr. 272-274 ; I. 1891, ss. 55-60,
and 1910 O. 9. 53J. 1888, s. 21; 1910, s. 7.

"Ens. 1903-8 Rules, rr. *9, 52; B. C. 1911 s. 16; L. Is. 1886 (1914)
ss. 130 135. " See note 50.

"Aust. Torr. Syst. 752; Niblack's Torrens System (1903) 46.

" For instance, Manitoba : M. 1913, s. 82, made more emphatic in
this case by the distinction (s. 2) between land being "subject to" the
new system pending an application, and " under " the new system by the
issue of the certificate of title.

jj u Concord Munic. Dist. v. Coles (1905) 3 C. L. R. 96, 108. And see
Macmillan v. Ati.-Q-en. (1912) 4 Ea. Af. R. 120.

Sect. 2] PROCEDURE. 53

stage is to publish notice of the application and fix a date at which
the prima facie ground for registration will be considered conclu-
sive in the absence of objections or adverse claims ; if objections or
adverse claims are made, these are fought out between the parties
themselves. The third stage is to complete the registration — in
the event of the right to registration not being challenged or (if
challenged) being upheld — by placing the land on the register with
the person entitled named as its owner. These stages are not
always clearly separated in the statutes, or even in text-books, the
enactment and statement of the numerous detailed steps to be taken
rendering this difficult. These distinct stages do however exist,
and their recognition helps towards an understanding of the mean-
ing and objects of the procedure. The principal provisions on the
subject, as laid down in statutes, rules, and annotated editions
of these, appear sufficiently by the references to text-books, stat-
utes, &c, in the note below.89

The application having been formally made, the first stage in
the procedure is for the registry to check the description of the pro-
perty and investigate the title offered by the applicant. In Eng-
land and Ireland the procedure as to boundaries will vary accord-
ing as a general or a fixed boundary is asked for; in all jurisdictions
the difference between town and country land will involve differ-
ences in procedure. In England, Ireland, Ontario, British Columbia,
Jamaica, and Leeward Islands, the procedure as to investigation of
title will vary according as a fully warranted or a qualified title
is required (ante, p. 51), the difference being essentially one of
degree only. The standard procedure may be taken to be that con-
cerned with applications for fully warranted title.

The examination of the application in the registry is con-
ducted on the principles and according to the rules governing the
examination of the vendor's title on behalf of a purchaser of the
land.60 The best analogy to this first stage is to ho found in the
proceedings for carrying into effect a contract for the sale and pur-
chase of a piece of land, where the contract contains some reason-
able conditions cutting down the purchaser's extreme rights as
these would etist under an open contract. Whilst, however, some
of the statutes make a " safe holding " title sufficient, others speak

"Own. & Inc. 69-85; Aust. Torr. Syst. 742-758; Can Torr. Syst 74-
88; T. 1891 ss. 26, 29, 55. 60 62. 65-68, and 1910 O. 2, & 5, 7, 9: On. 1914,
as. 22-27, 81, 88, and 1911 Rules, rr. 1-22; B. C. 1911, ss. 14, 16, 22,
108-110. 114 120; B. 17. 1S14. ss. 4-29: Tr. 1902 ss. 14-29; J. 1888, ss.
22-35; L. Is. 1886 (1914) ss. 12-17, 124-126.

mJn re Eaton (1879) 1 Q. L. J. Suppl. 9; Smith v. Auckland Dist.
Land Registrar (1905) 24 N. Z. R. 862.

54 INITIAL REGISTRATION. [Ch. k.

indefinitely of a title being proved " to the satisfaction of " the
registrar, or " appearing to ** the registrar to be good, &c. It has
indeed been laid down in the Australasian courts that only such a
title can be accepted for registration as would be forced by the
Court upon an unwilling purchaser,61 and this is, in effect, to de-
clare that only a " marketable " as distinguishable from a " safe
holding " title can be registered. But this is contrary to the ordi-
nary practice, and even to those enactments in the statutes them-
selves which permit an equitable title to be accepted as sufficient
evidence of an estate in fee simple. It must be remembered that
what may be a " marketable " title in one jurisdiction may not be
such in another. The standard of strictness in proof required is
considerably lowered by the operation of statutes like the English
Vendor and Purchaser Act 1874, and the general use of certain
well-known local conditions of sale may have a similar effect.82

The jurisdictions in which no standard of title is enacted, be-
yond permitting an equitable title to be accepted, are: New South
Wales, Queensland, South Australia, New Zealand, Saskatchewan,
Alberta, North- West Territories, Trinidad-Tobago, Leeward Is-
lands.

In Tasmania, Victoria, Western Australia, and Jamaica,63 an
admittedly defective title may be accepted for registration upon
payment of an increased fee to the assurance fund, and in Mani-
toba 64 an increased fee may be payable for accepting a Crown
grant ten years old without investigation.

In England, Ireland, Ontario, British Columbia, Manitoba, and
British Honduras,65 the statutes expressly permit either a safe
holding title to be accepted, or evidence short of strict legal proof.
In Jamaica also it is sufficient if the applicant can "maintain and
defend his possession." 68 In the British Columbia enactment the
expression used is "good safe holding and marketable title," in
which it is difficult to give any precise meaning to the word
"marketable"; however, the absence of the usual vendor's cove-
nants for title from a conveyance does not render a title unmarket-

w Cases in preceding note.

82 For instance, in British Columbia with respect to tax sales, see B. C.
1911. s. 36: Temple v. North Vancouver Corp. (1913) 25 West. R. 245,
350: Ex p. Lnmmn (1915) 21 B. C. R 507. Tn New South Wales, cs to
common conditions, see Tn re WalHs (1903) 3 S. R. (N. S. W.) 615. 620.

"Tas. 1886. s. 20: V. 1915. ss. 44. 119; W. A. 1893. s. 45; J. 1888, s.
36 Illustrations are- Tn re Salter (1871) 2 V. R. L. 113: Tn re Swallow
and Ariell (1894) 20 V L. R. 308. MM. 1913, s 48.

"Ens. 1875. s. 17 and 1903-8 Rules, rr. 24-28; I. 1910 O. 5: On.
1914. s. 22: B. C. 1914. s. 14; M. 1913. ss 40. 49. 58; B. H. 1914. s. 10.

Ard see Own. & Tnc. 73; In re G (1893) 21 O R. 109, relaxation of

str'ct rules of ev? V^ce. " J 1888, s. 22. Of. Leeward

Islands — L. Is. 1886 (1914), s. 14 ante, p. 35. The Jamaica limitation Act
diffe -s from the English statute : p. 96 post.

Sect. 2] PROCEDURE. 55

able or unfit for registration.67 But the irregular exercise of a
power of sale by mortgagee would justify the rejection of a title.88

Express provision is made in most jurisdictions for the deter-
mination of disputed points of law or fact that arise in the course
of the investigation of the applicant's title. This is done by re-
ferring the question to the ordinary courts, where the registry is
distinct from the court ; 69 references will however often resemble
ordinary appeals, particularly in those jurisdictions in which the
registry is, or tends to be, a branch of the court.70 In Alberta,
North-West Territories, British Honduras, Trinidad-Tobago, and
Leeward Islands, the application is actually referred to a judge of
the Supreme Court for consideration.

The determination of the question whether the applicant has
shewn a prima facie right to have the land registered, with himself
as owner, brings the procedure to the end of the first stage. But
even if the registry is satisfied with the prima facie title shewn,
and this is intimated to the applicant, any proper objection may
still be taken before the registration is actually effected, and the
applicant is not necessarily entitled to be registered merely because
no caveat is entered.71

The second stage is the period during which notice of the
application is published and claims adverse to the applicant are
invited, and if made, fought out. Here there is some resemblance
to Limitation and Quieting Title Acts, inasmuch as a time limit —
varying from weeks to years — is set for the enforcement of adverse
claims, with a view to their being barred when the contemplated
judicial declaration of title (as it may be called) has once been
carried into effect by final entry of the land and ownership on the
register.

"Re Dalgleiah (1910) 14 West. R. 255 (B.C.), citing Scott v. Alvarez
[1895] 2 Cb 603.

"Re Shore (1890) 6 Man. R. 305: In re Salter (1871) 2 V. R. L. 113.

"An illustration is In re Anderson TlOll] V. L R. 297. where the
registry took exception to the applicant's title, and the title was held bad
by the Court. ITere the registry had obtained information aliunde, but
this is the kind of case that is usually fought out at a later stage between
rival claimants.

w Rncland. see Own. & Tnc. 74. Australasia, see Anst. Torr. Syst 742,
743: V. 1915. ss. 238. 248. 249: N. Z. 1915, ss. 199-205. I. 1891. ss. 13,
14: 1910, O. 6. On. 1914. ss 88. 140 B. C. 1911, ss. 108-110 I), 172. M.
1913 ss. 130-134. Sas. 1917. ss. 157. 158, 188. Al. 1906, ss. 112. 113. 147.
Can. 1906. ss. 152. 153. B. H 1914. ss. 7-10. Tr. 1902, ss. 14-17. L. Is.
1886 (1914) ss. 13. 15, 16.

n Manning v. Commr. of Titles (1890) 15 A. C. 195. The rule laid
down is embodied in the statutes of Alberta and North-West Territories
(and formerly Saskatchewan) by inserting the words "if he entertains
no doubt." &c: Al. 1906, s. 29 (1) ; Can. 1906, s. 57.

£6 INITIAL REGISTRATION. [Cn.li.

The application is made public by inserting notice in official'
gazettes and ordinary newspapers, by serving notice on adjoining;
owners and occupiers and other persons who may be supposed to be
specially interested, and by posting notice in public offices; when
(in Tasmania, Victoria, Western Australia, and Trinidad-Tobago);
the applicant claims title by possession, notice is also posted on the
land itself (ante, p. 48). The amount of publicity and the
length of the time limit are governed by the nature of the appli-'
cant's title. In England and Ireland special notice to adjoining
owners and occupiers is necessary when the boundaries are to be
fixed, and in Ontario special notice must be given if land is to be*
registered free from a public highway.72 The requirements of the
statutes as to publication of notice vary considerably. In England,
Ireland, and Ontario73 this publication is prescribed by the Rules.
In the Australasian jurisdictions 74 it is part of the procedure pre-
scribed in the statutes, and so in British Honduras, Trinidad-*
Tobago, and Jamaica.75 In the British Columbia statutes pub-
lication of notice seems not to be expressly required at all, and in
Manitoba, Saskatchewan, Alberta, North-VVest Territories, and
Leeward Islands,78 only when some adverse interest seems likely
to be in existence.

In all nineteen jurisdictions, except British Columbia, provi-
sion is made for objections and adverse claims to be brought in and
heard before the applicant's registration is completed. In British
Columbia77 an adverse claimant can (besides entering a caveat)
register a lis pendens as a charge against the land, and the regis-'
tration (if effected) will be subject to all rights of the person reg-
istering the lis pendens; these rights may subsequently be litigated'
by formally contesting the registered owner's right to be registered.
In seven jurisdictions— England, Ireland, Ontario, Saskatchewan,

, "Eng. 1903-8 Rules, r. 272; I. 1891, s. 57, and 1910 O. 9, r. 3;
On. 1914, s. 24 (3).

n Eng. 1903-8 Ruins, rr. 28-30 ; I. 1910 O. 2, r. 5 ; On. 1911 Rules, rr.
11-13.

, " Aust. Torr. Syst. 744 ; V. 1915, ss. 19-23, 110, 111 ; N. Z. 1915, ss.
23-28.

WB. H. 1914, ss. 5-7; Tr. 1902, ss. 16, 17, 19; J. 1888, ss. 24, 27.

"M. 1913. s. 43: Sas. 1917, s. 42; Al. 1906, s. 34; Can. 1906, 8. 65;
L. Is. 1886 (1914) s. 16.

WB. C. 1911. ss. 71. 72. 117. The sections relating to caveats are: 88.
14, 22, 62, 67 A. Rut in British Columbia all transactions are treated
more or less like initial applications, and the provisions as to caveats do
not distinguish (as is done in other jurisdictions) between initial applica-
tions and subsequent transactions. A subsequent transaction invol es an
" application " to the registry in British Columbia as regularly as initial
registration does.

SfcOT. 2] PROCEDURE. 57

Alberta, North-West Territories, and British Honduras 78 — provi-
sion is made for any one interested lodging a short statement of his
objections, and the matter is decided between the parties by the
registering authority — registrar, judge, &c. — subject to rights of
appeal to the Courts in a more formal way.

In England, Ireland, and Ontario,79 provision is also made for
any person claiming " such an interest ... as entitles him to object
to any disposition " of the land to enter a " caution," which will en-
title him to notice " of any application that may be made " for regis-
tration. In Ontario the caution must be renewed before the end of
five years, or it ceases to have any effect ; and a second caution can
only be entered by special permission (s. 76), though this may
apply only to cautions against transactions. These provisions con-
template the entry of a caution quia timet, and not by way of ob-
jecting to an application already made. This kind of " caution "
is quite different from the " caveat " next to be referred to.80 The
nature of the interest that will entitle an objection or adverse claim
to be made, or a caution entered, is however left indefinite. In the
case of the "caveat" this is not so, and the question of what is a
sufficient interest to support a caveat has frequently arisen in the
courts. It may be that cases on caveats furnish some guide to' the
kind of interest required under objections, adverse claims, and cau-
tions, in other jurisdictions.

In the other eleven jurisdictions then — seven Australasian,
Manitoba, Trinidad-Tobago, Jamaica, and Leeward Islands 81 — a

"En*. 1903-8 Rules, rr. 31-33; I. 1801, g. 62, and 1910 O. 14, r. 3;
On. 1911 Rules, rr. 14-16 : Sas. 1917, ss. 40, 41; Al. 1906, ss. 32, 33: Can.
1906. ss. 63, 64 ; B. H. 1914 s. 9

wEng. 1875, ss. 60 64. and 1903-8 Rules, rr. 88-94; I. 1X91, s. 61, and
3010. O 7, r. 1 : On. 1914, ss 76, 81, 83-86, and 1911 Rules, rr. 22, 24.
See Own. & Inc. 75.

" Perhaps an exception occurs in the case of the Leeward Islands where
the " caveat " is rather of a quia timet character: L. Is. 1886 (1914) s. 17,
and next note.

"N. S. W. 1900. ss. 24-28. 97. 98, sch. 3; Q. 1861. ss. 23-26. 99,
100. 102. 103, sch. B, and 1*77. ss. 36-38; S. A. 1886, ss. 39, 40, 44. 45,
191. schs. 3. 21 : Tas. 1862 ss. 22-24. 83, 85. sch. B. and 1886, s. 21: V.
1915. ss. 29-31, 114. 186. 221. sch. 4: W. A. 1893. ss. 30-32. 140 176. sch.
6: N. Z. 1015. ss. 145. 147 140. 151-157, sch. 2 f . K : M. 1013. ss. 135 137,
141-153. schs O, K, L; Tr 1002 ss. 24-26, 119 sch. 1 f . C. ; J. 1888, ss.
32-34, 117, sch. 3: L. Is. 1886 (1914) ss. 17, 111-122 sch. B. f 24, and
see Aust. Torr. Syst. 744 et neq.. 358; cases noted in annotated edition
of Australasian statutes, particularly Ilutch. 132-141. Ca\eats prior to
initial registration may also be entered in Saskatchewan, Alberta, and
Korth-West Territories, but no special procedure is prescribed and these
caveats are treated as caveats against transactions. Thp relative sections
(including withdrawal and compensation) are: Sas. 1917, ss. 133 (2),
137. 139; Al. 1906. ss. 86, 88, 94; Can. 1906, ss. 133, 137, 139. And see
Can. Torr. Syst. 358.

58 INITIAL REGISTRATION. [Ch. n.

special procedure is provided for, and as the first step the objector
files a " caveat " in which he " forbids " the registry to proceed with
the application. The filing of this caveat is " in the nature of the
initiation of litigation," and operates as a statutory injunction,82
staying registration so that the question of disputed title may be
settled by the applicant (including any nominee 83) on the caveator
taking proceedings for that purpose. The entry of a caveat and
the adoption of the special procedure provided by the statutes is not
of course compulsory, and ordinary proceedings by way of action
for recovering the land, or obtaining an injunction and declaration
of title, could be taken without filing any caveat.84 If a caveat is
filed the caveator must adhere strictly to the provisions of the
statute, and may lose all right to an injunction if the caveat be
once allowed to become inoperative through lapse of time.85 The
special procedure is more elaborate in New South Wales, South
Australia, and Manitoba 86 than in other jurisdictions.

A caveat must be supported by a sufficient interest in the pro-
perty, and must state the nature of the interest correctly.87 Refer-
ence to the land as " described in the advertisement," " described
in the application," " sought to be brought under " the new system,
all have the same meaning, and refer to the interest which it is
sought to place upon the register.88 A statement that the caveator
is " owner in fee simple by right of possession " will be sufficient
where a title by possession is claimed, and part only of the land
applied for may be claimed.89 The interest of the caveator must
be of a proprietary nature, and on this ground a local authority has

-Concord Munic. Dist. v. Coles (1905) 3 C. L. R. 96. 108; Collins v.
Featherstone (1880) 10 N. S. W. Eq. 192: Clissold v. Bellomi. ib. 187, 191;
Gaffney v. McLaughlin (1901) 1 S. R. (N. S. W.) 373. 379.

"The nominee (if any) must be a party to any proceedings between
the applicant and the caveator: Hay v. Nixon (1891) 7 Man R. 579.

" Archibald v. Archibald (1879) 5 V. L. R. 150; Chappell v. Broughton
(1889) 11 N. S. W. Eq. 65; Bethune v. Porteous (1893) 19 V. L. R. 161;
Staples d Co. v. Corby (1900) 19 N. Z. R. 517; HcGrath v. Williams
(1912) 12 S R. (N. S. \V.) 477.

uClissold v. Bellomi (1889) 10 N. S. W Eq. 187; Bell v. Beckman,
ib. 251 : In re McNauqhton [1909] V. L. R. 398; In re Sanday (1910) 10
S. R. (N. S. W.) 826.

MN. S W. 1900, s. 27; S. A. 1886, sch. 21: M. 1913. sch. L. The
Manitoba rules seem to have been adopted from the South Australian The
case of Bucknam v. Stewart (1897, 11 Man. R. 491) illustrates the Mani-
toba procedure, the caveator (tboush in possession) bein^ made plaintiff.

" The cases and observations here are merely supplementary to those
in Aust. Torr. Syst. 746-749.

•*See Exp. Metropolitan Build. Soc. (1884) 10 V. L. R. L. 361, cited
in Aust. Torr. Syst. 747. The observations in the text and Aust. Torr.
Syst. as to land described in advertisement or application cover the statuses
in Manitoba, Trinidad-Tobago, and Jamaica: M. 1913. s. 135: Tr. 1902,
8. 24; J. 1888, s. 32. South Australia has "sought to be brou-ht under":
S. A. 1886, s. 39. "In re Robertson (1907) 7 S. R. (N. S. W.) 474.

Sect. 2] PROCEDURE. 59

not sufficient interest in the soil of a public road to entitle it to
enter a caveat against initial registration.90 The interest of a
mortgagee, however informally secured to him,91 will support a
caveat, but even the possession of the title deeds will not entitle a
statute-barred mortgagee to oppose an initial application by the
owner of the land.92 Anything that can be described as merely a
personal interest, such as that of a covenantee entitled to have the
land used only for certain restricted purposes, has also been held
not to be sufficient interest in the land to support a caveat.9*

The principle that a caveator must shew an actual interest in the
land, and not merely a right under a personal covenant, would seem
to apply to objections, adverse claims, and cautions, in other juris-
dictions above referred to. There is, of course, still room for liti-
gation as to what constitutes an " interest in land." There also
seems to be no reason why the procedure of initial application
should not be made use of in all jurisdictions where actual posses-
sion is not required of the applicant, in order to litigate title to
land between applicant and objector, as is commonly done in the
Australasian jurisdictions.*4

A caveator who once allows the caveat to lapse, or the proceed-
ings founded on the caveat to go against him by default, cannot as
a rule receive any further protection.95 In South Australia, New
Zealand, and Manitoba, renewal or a second caveat is expressly
permitted by consent or with leave; in Victoria, Western Australia,
Jamaica, and Leeward Islands, such renewal, &c, is expressly for-
bidden.9' In all these eleven jurisdictions, except Leeward Islands,

•» Concord Munic. Dist. v. Coles (1905) 3 C. L. R. 96.

"See Burknam v. Stewart (1897) 11 Man. R. 491, where applicant
was a mortgagee.

-Barnet v. Williams (1889) 15 V. L. R. 205. Beckett v. D strict
Land Registrar (1909) 28 N. Z. R. 788: but this case is also governed
by a New Zealand enactment which makes a depositee of the deeds a
pledgee merely, without any interest in the land : Property Law Act
1908 (No. 152), a. 63.

" Staples d Co. v. Corby (1900) 19 N. Z. R. 517, referred to in Aust.
Torr. Syst. 748, and the following cases: Woodberry v. Gilbert (1907) 3
Tns. R. 7 (covenant not to let stables for livery business) ; Ex p. Graves
(1905) 3 N. Z. Oaz. R. 318 (right to be relieved from forfeiture of a
lease), referred to in Hutch. 134.

"See Ex p. Hamilton (1864) 3 S. C. (N. S. W.) 311: Aust. Torr.
Syst. 722, 752: Fergie v. Byrne (1866) 3 W. W. & aB. L. 56.

"Aust Torr. Syst. 750: but the Court is not absolutely without dis-
cretion : In re McNaughton f 1909] V. L. R. 398. And see next notes.

»S. A. 1886. as. 45. 191 (11) : N. Z. 1915. s. 157: M. 1913. ss. 145.
148 : V. 1915, s. 31 : W. A. 1893. s. 32 : J. 1888, s. 34 : L. Is. 1886 (1914)
8. 122. Other enactments allowing renewal on terms seem to apply to
caveats aeainst transactions only; these are: V. 1915, s. 184; W. A.
1893, s. 138; J. 1888, s. 114.

gtf INITIAL REGISTRATION. [Ch. ii.

deliberate omission to enter a caveat or take proceedings may
also operate as a bar to any future proceedings being taken for re-
covery of the land or for compensation.07 This does not of course
preclude an applicant and a would be caveator from coming to an
agreement, and an agreement not to enter a caveat can be enforced
even though not in writing.98

That a caveat may be withdrawn is expressly enacted in three
jurisdictions only — New Zealand, Manitoba, and Leeward Is-
lands," though this is of course implied in the others. In all
eleven the caveator is liable to the applicant for any loss or dam-
age if the caveat be entered without reasonable cause;1 in South
Australia and Manitoba 2 the registrar is expressly excepted from
any such liability, though the exception seems to be implied in the
6ther statutes that impose the liability, the words in every instance
being " any person lodging a caveat," which would hardly include
the registrar.

The applicant cannot affect the rights of the caveator by conr
veying away the land to another person, the latter being then
treated as the applicant's nominee.3 He may however withdraw
the application altogether, and if no proceedings beyond an injunc-
tion keeping the caveat in existence have been taken by either party,
the caveat and injunction will both become inoperative, and will be
lio bar to a second application being made subsequently.4 It
would seem that if proceedings under the ordinary jurisdiction of
the Court were taken by either applicant or caveator to test their
opposing claims, it would then be too late for the applicant to pre-
vent the questions at issue being decided by withdrawing the ap-
plication.

Where the special procedure under the statutes of New South

"N. S. W. 1900, s. 130 (3) : Q. 1801. s. 21; S. A. 1886. s. 216: Tas.
1862. s. 130; V. 1915, s. 256; W. A. 1S93. s 211; N Z. 1915, s. 196: M.
1913, s. 161; Tr. 1902. s. 139; J. 1888, s. 141.

•* Coker v. Spence (1876) 2 V. L. R. L. 273. citing Buttemere v. Hayes
(1839) 5 M. & VV. at 459 A somewhat similar case of a verbal agree-
ment being sufficient is Smith v. Ernst (1912) 22 Man. R. 363, where the
agreement was that the title to certain land should be " Torrens."
'"N. Z. 1915, s. 156; If. 1913, s. 142; L. Is. 1886 (1914), s. 116.

»N. S. W. 1900, s. 98; Q. 1861, s. 103; S. A. 1886. ss. 44, 191 (10) ;
Tas. 1862, s. 85; V. 1915. s. 186; W A 1893, s. 140; N. Z. 1915. s. 155;
11.. 1913. ss. 142. 143; Tr. 1902. s. 119: J. 1888, s. 117; L. Is. 1886 (1914)
s. 120. And see Aust. Torr. Syst. 749.

,'S. A. 1886, s. 191 (10) ; M. 1913, s. 143. Smith v. Registrar-Gen-
eral [1909] S. A. R. 1.

•Ex p. Murray [1913] V. L. R. 546; MacmilJan v. Att.-Gen. (1912)
4 Ea. Af. R. 120.

*Goffney v. McLaughlin (1901) 1 S. R. (N. S. W.) 373.

§eqt. 2] PROCEDURE. 5j

Wales, South Australia, or Manitoba (ante, p. 58) is availed of,
it has been decided in Manitoba that the application is the founda-
tion of the proceedings, and on its withdrawal at any stage the
Court has no further jurisdiction to declare the substantive rights
of the parties; there is however a New South Wales case opposed
to this view, and it would seem more reasonable that even under
the statutory procedure the applicant should not be allowed, by
withdrawing his application, to prevent a final declaration of the
parties' rights.6

In New South Wales, South Australia, and Tasmania, no con-
dition or restriction is placed on the right of withdrawing the
application, though in Queensland the consent is required of other
persons who would be entitled to be registered on the application
being granted.* In New Zealand7 the application can only be
withdrawn, when a caveat is in existence, with the consent of the
caveator or by leave of the Court. In Victoria, Western Australia,
Manitoba, Trinidad-Tobago, and Jamaica," the applicant may be
ordered, on withdrawing the application, to pay any expense to
which the caveator has been put. The Leeward Islands statutes
are silent on the subject of withdrawing the application. Probably
the caveator, or any other person injured by the making of the
application, could recover by action any actual loss suffered, in
those jurisdictions where no special remedy is provided.9

On a mere summons or motion to remove the caveat the sub-
stantive rights of the parties cannot usually be determined. But if
regular proceedings be taken, either in the ordinary way of litiga-
tion, or (in New South Wales, South Australia, and Manitoba)
under the special procedure, a declaration of title may be made in
favour of either caveator or applicant.10 If the caveator actually
claims and is held entitled to the ownership of the land, his rights
will be declared accordingly. In the event of his then desiring to
be registered — taking in fact the place of the applicant — he might
possibly be required by the registry to make a formal application,
but a fresh investigation of his title in detail would not usually be
necessary.

'Campbell v. Alloway (1892) 8 Man. R. 225; Saddington v. Hackett
(1880) 1 N. S. W. 155.

• N. S. W. 1900. s. 23 ; Q. 1861, g. 29, and 1877, s. 9 : S. A. 1*86. a-
41; Tag. 1862, g. 25. TN. Z. 1915. ss. 29. 149.

•V. 1915. g. 33; W. A. 1893, g. 34; M. 1913, s. 39; Tr. 1902. s. 27;
J. 1888. 8. 30.

•See Stockdale v. Hamilton (1866) 5 S. C. (N. S. W.) 180; Lachaume
r. Broughton (1903) 3 S. R. (N. S W.) 475.

«• Saddington v. Hackett (1880) 1 N. S. W. 155; Fisher v. Gaffney
(1884) 5 N. S. W. 276.

62 INITIAL REGISTRATION. [CH.H.

In the other jurisdictions where the " caveat " procedure on
initial application is not part of the system, no special provision is
made for withdrawing ordinary objections and opposition to the
application, or for making the objector or opponent liable to pay
compensation other than costs. Withdrawal of a caution in Eng-
land and Ontario is however dealt with in rules, and in England,
Ireland, and Ontario the statutes provide for damages being re-
coverable for improper entry of a caution."

Withdrawal of the application seems only to be referred to in
the British Columbia statutes;12 the applicant is liable to make
compensation to a caveator if the latter has been put to expense.

When proceedings sufficient to decide the question of right be-
tween the parties have been instituted by either applicant or cavea-
tor, the question is fought out and the decision of the court given —
— apart from the difficulty under the statutory procedure in New
South Wales, South Australia, and Manitoba — independently of
the circumstances of the origin of the litigation. The question of
title indeed can be decided with a view to a subsequent application
being made,13 and this is of course necessarily the point of view
of a caveator when he institutes proceedings against the applicant
as defendant.14 The decision of the Court thus has the same rela-
tion to the registration of the title in all jurisdictions, whether the
"caveat" procedure is in force or not. This decision is prima
facie binding only as between the parties, and its value as evidence
of title arises from the fact that the land is intended — and the
Court can so direct if necessary — to be placed on the register, the
declared owner thus getting the benefit of the State warranty given
by the registration statutes.16

"En*. 1875 s. 63, and 1903-8 Rules, r. 92; I. 1891, s. 61; On. 1914, s.
85. and 1911 Rules, r. 24. The question of caveats on initial registration
in Saskatchewan, Alberta, and North-West Territories is referred to in
note 81 (ante, p. 57).

11 B. C. 1911, s. 45; but no special provision is made for a caveat
beine filed on initial applications. See note 77 (ante, p. 56), as to "appli-
cation" including transactions subsequent to initial registration.

aBradshaic v. Patterson (1911) 18 West. R. 402 (Sas.).

14 Illustrations are: Goodbody v. Miller (1893) 19 V. L. R. 581;
Trinidad Asphalt Lake v. Warner (1894) 1 Tr. & Tob. 12. In each
of these cases the caveator was plaintiff, and succeeded in establish-
ing his title to the ownership of the land in place of the applicant.

"The principle adopted is that it is the actual registration, and not
the judgment of the Court, that gives title. The principle upon which
title is conferred under Quietine Title Acts and Declaration of Title Acts —
such as the English Act of 1862 (25 & 26 Vict. c. 67)— is not adopted
in any of the registration statutes dealt with in this book (ante, p. 1).
The difference between the two principles is illustrated strongly in Mani-
toba and British Columbia; there a title may not be registered, even in
pursuance of an order of the Court, unless it be found to be "safe
holding": M. 1913, s. 58; B. C. 1911, s. 116A.

Sect. 2] PROCEDURE. 63

This registration of the land and its owner constitutes the
third and final stage in the procedure of initial registration. It is
effected by entering the land on the register by its appropriate de-
scription, with the name of the person entitled as its owner. The
actual moment at which registration is complete seems to be when
the proper number in the register book is placed upon the folium
or document constituting the owner's evidence of title to the land
on the register; this is expressly enacted in the Australasian stat-
utes, and in Saskatchewan, Alberta, North-West Territories, Trini-
dad-Tobago, and Jamaica.18 Manitoba and Leeward Islands 17
are not so precise, whilst the statutes in England, Ireland, On-
tario, British Columbia, and British Honduras, appear to be silent
on the subject.

In some jurisdictions and for some purposes the registration
has relation back to the date of the application, or some other date.
In England applications are to be entered and numbered in the
order in which they are delivered at the registry,18 though this is
probably the practice in most jurisdictions. In British Columbia
the land is subject to all charges registered subsequently to the date
of the application.19 In Manitoba the mere filing of the applica-
tion makes the land " subject to the new system " and unaffected by
registration at the deeds registry.20 In the Australasian jurisdic-
tions, Trinidad-Tobago, and Jamaica, on the death of the applicant
or his nominee the registration is directed to be made as though it
were prior to the death.21

Some subsidiary matters connected with the completion of the
registration are the following: (1) Entering on the register in-
cumbrances and other interests affecting the land; (2) Entry of
any existing disability affecting the owner; (3) Issue of duplicate
document of title; (4) Marking and custody of the owner's former
muniments of title, and noting new registration in the deeds reg-
istry.

1. In all nineteen jurisdictions, except British Honduras, some
reference is made by the statutes to the possible existence and the

•H. S. W. 1900, s. 35; Q. 1861. s. 34 ; S. A. 1886 s. 50; Tas. 1862,
s. 34 ; V. 1915, s. 51 ; W. A. 1893, s. 52 ; N. Z. 1915, s. 34 (1) ; Sas. 1917,
s. 49; Al. 1906, s. 22; Can. 1906. s. 45 (1) ; Tr. 1902, s. 40; J. 1888, s. 43.

»M. 1913, s. 72: L. Is. 1886 (1914) s. 5.

MEng. 1903-8 Rules, r. 23; the former rule (1903, r. 22) is abro-
gated.

"B. C. 1911, s. 22 (11 (ff). "M. 1913, s. 37.

• MN. S. W. 1900, ss. 30. 31; Q. 1861, s. 31; S. A. 1886. s. 43: Tas.

1862, s. 27; V. 1915. s. 37; W. A. 1893, s. 38; N. Z. 1915, s. 67; Tr.
1902, s. 29 ; J. 1888, s. 35. And see Aust. Torr. Syst. 1014 ; Queensland-
Grants to Deceased Persons Act 1884 (48 Vict. No. 9).

64 INITIAL REGISTRATION. [CH, H.

effect of incumbrances on and other interests in the land at, the
time of initial registration being completed. In Eng'and, Ontario,
Manitoba, Victoria, and Western Australia, the statutes contain no
actual direction that all incumbrances outstanding shall be entered
on the register ; such a direction however certainly seems to be im-
plied. In Ireland, Queensland, New Zealand, British Columbia,
and Leeward Islands,22 estates and interests other than ordinary
incumbrances are directed to be noted on the register in the same
way as incumbrances, and in British Columbia the registered title
is subject to charges registered since date of application for regis-
tration. In New South Wales, Tasmania, Trinidad-Tobago,
Saskatchewan, Alberta, and North-West Territories,23 leases as well
as mortgages and charges are to be noted as existing incumbrances.
In South Australia rent-charges are included among the incum-
brances to be so noted, and in Jamaica " incumbrances " generally
are to appear.24 All these incumbrances and interests are in fact
treated as qualifications of the full ownership of the land, and in
some statutes the word " qualification " is actually used ; instances
are Saskatchewan, Alberta, and North-West Territories.26 These
" qualifying " incumbrances are in some jurisdictions treated as
being registered under the new system; in others as interests to be
dealt with under the general law and as though the land were not
registered ; in others again their position is left ambiguous, or some
incumbrances are treated in one way and some in another.

In Tasmania, Victoria, Western Australia, New Zealand, Trini-
dad-Tobago, and Jamaica,26 outstanding mortgages are treated for
nearly all purposes as created under the new system, though the
rights of the mortgagee reinain substantially unaffected. In Mani-
toba,27 on the other hand, outstanding mortgages are treated as
though the land remain unregistered. In England, Ireland, and

"t 1891, s. 29: Q. 1861, s. 33; N. Z. 1915. s. 62: B. C. 1911, s. 53;
L. Is. 18S6 (1914) ss. 4. 9. 13, 56. In British Columbia and Leeward
Islands the sections cited actually direct all other interests to be treated
as incumbrances.

**N. S. W. 1900. s. 33: Tas. 1862 s. 32; Tr. 1902, s. 34; Sas. 1917,
s. 35: Al. 1906, s. 29: Can. 1906, s. 59.

* S. A. 1886, s. 77 ; J. 1888, s. 23.

*Sas. 1917, ss. 35. 46; Al. 1906, ss. 26, 29; Can. 1906, 49, 50.
58, 59.

"Tas. 1893, s. 4 : V. 1915, ss. 167-174; W. A. 1893, ss. 124, 128;
N. Z. 1915, s 54 : Tr 1902, ss. 81, 84 ; J. 1888, ss. 23, 109. In Re Smith
(1893) 13 Aust. L. T. 85. in part abrogated by V. 1915, ss. 168-174. And
as to incumbered Crown leases in Western Australia, see W. A. 1911, s. 2, •

• M. 1913. s. 34.

Sect. 2] PROCEDURE. g5

Ontario,2S outstanding incumbrances are for some purposes, but
not all, treated as being under the new system, the rights of the
incumbrancers being substantially unaffected. In New South
Wales, Queensland, South Australia, and Leeward Islands,29 noth-
ing is expressly said by the statutes as to the status of the " out-
standing " mortgage. There seems however to be no doubt that in
all cases where nothing is enacted to the contrary the outstanding
incumbrance is to be regarded as qualifying the title of the regis-
tered owner, so that the rights and remedies of the owner of the
incumbrance, in respect of the registered land and the interest of
the registered owner therein, are not affected.30

The general rule is that all actual incumbrances (whether by
way of charge or ownership) on the land, and particularly those
appearing as registered under the general law in a deeds registry,
should be noted in the order of their priority on the owner's regis-
ter or certificate of title when initial registration is completed.31
Occasionally however, the deeds registry may disclose an interest
which will not be allowed to be entered on the new register, as not
being an actual " interest in the land " but a restrictive personal
covenant only.32 The entry of these outstanding incumbrances is
not usually any warranty of their validity, nor is their priority
inter se — under any deeds registry or otherwise — affected. This is
specially provided for in England and Ontario, but would seem to
be the general rule,83 though an exception is made in the Leeward
Islands.34

In one respect Xew South Wales and Trinidad-Tobago are
peculiar. Where leasehold land has been registered and a certifi-
cate of title duly issued to the owner, this registration is in effect

»Eng. 1875. s. 19, and 1903-8 Rules, rr. 175, 216, 217: I. 1891, ss.
29, 39; On. 1914, ss. 26, 27: Own. & Inc. 205. In re Winter (1873)
L. R. 15 Eq. 156 (under the English Act of 1862). In re Purvis [1907]
1 I. R. 447 ; In re Hazlette [1915] 1 I. R. 285.

»N. S. W. 1900. s. 33; Q. 1861. s. 33 : S. A. 1886, s. 77; L. Is. 1886
(1914) ss. 4. 12, 13.

** In re Smith, supra; In re Winter, supra; In re Purvis, supra; Rex
v. White (1904) 4 S. R. (N. S. W.) 370.

" In re Canadian Pacific Ry. (1899) 4 Terr. R. 227 ; Kenna v. Ritchie
[1907] V. L. R. 386; Davidson v. O'Halloran [1913] V. L. R. 367 ; Rex
v. White (1904) 4 S. R. (X. S. W.) 379.

* Staples & Co. v. Corby (1900) 19 N. Z. R. 517. Sed. qu. whether
this case was rightly decided : see Aust. Torr. Syst. 748, 1038. and cases
there cited.

" Eng. 1903-8 Rules, r. 175 ; On. 1914. s. 26. Davidson v. O'Halloran,
supra.

"L. Is. 1886 (1914) s. 8, which appears to apply to incumbrances-
existing at the time of initial registration.

H.T.L. — 5

66 INITIAL REGISTRATION. [Ch. 11.

cancelled upon the owner of the fee becoming registered ; the lease-
hold interest is then noted as a quasi-incumbrance upon the regis-
ter of the freehold.35 In most cases however concurrent or succes-
sive interests or estates can be separately registered as substantive
ownerships. This is referred to further on in connexion with the
issue of certificates of title: and see Sect. 1, ante, p. 31).

2. In ten jurisdictions out of the nineteen, the statutes direct
the fact of the owner being under any disability to be stated on the
register, the direction being for the most part contained in the
enactments which direct outstanding interests to be noted. The
ten jurisdictions are: Ireland (where infancy only is mentioned),
New South Wales, Queensland, South Australia, Tasmania, Vic-
toria, Western Australia, New Zealand, Trinidad-Tobago, and
Jamaica.36 The absence of these provisions from the statutes of
the other jurisdictions raises a question, as to the extent of the
warranty of title, which will be noticed hereafter.

3. In every one of the nineteen jurisdictions the registered
owner is, upon initial registration, entitled to have in his posses-
sion what is really a duplicate of the register. In British Hon-
duras provision is only made for the issue of an office copy of
entries.37 In other jurisdictions this duplicate is called variously
certificate of title, duplicate certificate of title, land certificate,
certificate of ownership.38 In seven Australasian jurisdictions, and
in Manitoba, Trinidad-Tobago, Jamaica, and Leeward Islands,39
the "certificate of title" is directed to be "in duplicate"; in
Saskatchewan, Alberta, and North- West Territories,40 a " dupli-
cate " of the certificate of title is directed to be issued or delivered
to the owner after the registration is complete : — the character and
effect of the document delivered to the owner seems to be the same

33 N. S. W. 1900, s. 34 ; Tr. 1902, s. 38.

38 1. 1891, s. 74 ; N. S. W. 1900. s. 33 ; Q. 1861, s. 33 ; S. A. 1886. s.
77; Tas. 1862, s. 32; V. 1915, s. 62; W. A. 1893. s. 59; N. Z. 3915, s.
62 ; Tr. 1902, s. 34 ; J. 1888 s. 49.

37 B. H. 1914, s. 39.

38 As explained under " Nomenclature," ante, p. 22, the expression
" certificate of title " is here generally used to denote all these various
duplicate documents. On the relation between the original and the dupli-
cate— the register and the certificate of title — in England, Australia, and
Canada respectively, see Own. & Inc. 82. 262 ; Aust. Torr. Syst. 761 ; Can.
Torr. Syst. 58; Toronto General Trusts Corp. v. Rex (1917) 56 Can.
S. C. R. 26, affd. by Privy Council [1919] A. C. 679.

39 N. S. W. 1900. s. 33; Q. 1861, s. 33; S. A. 1886. s. 48; Tas. 1862,
s. 32 ; V. 1915, ss. 47, 62 ; W. A. 1893. ss. 48. 59 : N. Z. 1915, ss. 35. 61 ;
M. 1913, ss. 49, 73; Tr. 1902, ss. 21. 34; J. 1888, ss. 40, 49; L. Is. 1886
(1914) ss. 3. 12, 13.

40Sas. 1917, ss. 44, 46; Al. 1906, ss. 29, 36; Can. 1906, ss. 50, 67.

Sect. 2] PROCEDURE. 67

in either case. In British Columbia 41 the issue " in duplicate "
only takes place in the case of fully warranted title ; in other cases
" a certificate of title " is issued to the owner. In England and
Ireland a " land certificate," and in Ontario a " certificate of owner-
ship " is delivered to the owner.42

In some cases, where there are separate registrations of owner-
ship of distinct estates or interests in the land, more than one cer-
tificate of title may be issued in respect of what- is physically the
same land, the general (though not invariable) rule being that one
duplicate — and one only — issues for ever}- separate and distinct
registration of ownership. The oiilfttary cases are those of lease-
hold and freehold, life tenant and remainderman, and co-owners.
Where leasehold and freehold in the same land are each the subject
of initial registration, each owner is usually registered separately
and receives a certificate of title; Xew South Wales and Trinidad-
Tobago constitute exceptions (ante, p. 25). Only in Queens-
land, Alberta, and Xorth-West Territories,43 can a life tenant alone
apply as of right for initial registration ; whether the remainder-
man would be registered in the same way and receive a separate
certificate of title is perhaps doubtful. In Xew South Wales and
Queensland 44 express enactments deal with the registration of
remaindermen subsequently to that of life tenant, but it is not clear
whether the remainderman would receive a separate certificate of
title. In South Australia and Tasmania 45 provision is made for
a remainderman to be registered separately (receiving a separate
certificate of title) at his option. In Xew Zealand it has been
held that the existence of the estate in remainder should be stated
in the body of the life tenant's register and certificate of title, and
should not be entered on the register merely by way of endorse-
ment; the statute does not contemplate the separate registration of
a remainder,46 and the remainderman would not therefore receive
a separate certificate of title.

The question of the right of co-owners to certificates of title is
only referred to in some of the statutes. In some jurisdictions
undivided interests cannot be the subject of separate initial appli-
cations (ante, p. 25), but where such an application is made the
owner will on registration receive a certificate of title in the usual

«B. C. 1911. ss. 19. 20.

«Eng. 1875. s. 10. and 1897. s. 8, and 1903-8 Rules, rr ft.-,. 258: I.
1891. s. 31. and 1910 O. 8: On. 1914. ss. 14. 15. and 1911 Rules, r. 47.
"As to these, see ante, p. 31.
"N. S. W. 1900. s. 102: Q. 1861. s. 36.
«S. A. 1886. s. 75; Tag. 1862. s. 89. and 1886, s. 16.
~Ex p. ifntheson (1914) 33 N. Z. R. 838 : N. Z. 1915. ss. 61, 87.

68 INITIAL REGISTRATION. LCh. n.

way. There is no uniformity as to the registration and issue of
certificates of title in the case of co-owners. In England 47 co-
owners are registered " under one title unless the registrar shall
otherwise direct " ; presumably each would receive, on being sepa-
rately registered, a " land certificate." In Ireland,48 apparently,
tenants in common may be registered separately, and each then
receives a " land certificate," while joint tenants are registered
together and receive only one " land certificate." In Ontario 49
co-owners must be all registered together, but may receive one
" certificate of ownership " or separate certificates. In the Austral-
asian jurisdictions, British Columbia, Trinidad-Tobago, and Ja-
maica, the registration and the issue of certificate of title correspond
exactly ; in New South Wales 50 both joint tenants and tenants in
common must be registered separately, whilst in Trinidad-Tobago 51
they may be registered either together or separately; in Queens-
land 52 tenants in common must be registered separately, whilst in
South Australia, Tasmania, Victoria, Western Australia, New Zea-
land, British Columbia, and Jamaica,53 tenants in common may
be registered either together or separately.

4. Provision is made in the majority of the statutes for placing
on the documents, which prior to the registration constituted the
owner's muniments of title, some notification of the fact of the
land being registered, and for the future custody of these docu-
ments. In some jurisdictions the notification of the new regis-
tration has to be recorded at the deeds registry. In Manitoba,
Saskatchewan, Alberta, and North-West Territories, the statutes
are silent on both these points, but the Australian plan of retain-
ing the title deeds in the registry is in practice adopted.54 It
seems to be implied by other enactments in Saskatchewan, Alberta,
and North- West Territories,55 that any documents so retained are
open to public inspection. The British Honduras statute is silent
on both these points. In Ontario nothing is said as to marking
and custody of deeds, but provision is made for recording the initial
registration at the deeds registry.56

" Eng. 1875, s. 10 ; 1897, s. 14 ; 1903-8 Rules, r. 77.

48 1. 1891, ss. 31, 64: 1910 O. 8, r. 3.

<6 On. 1914, ss. 8, 96. ■ N. S. W. 1900, s. 100.

MTr. 1902. ss. 63, 64. ■ Q. 1861. s. 40.

" S. A. 1886, s. 74 ; Tas. 1886. s. 15 ; V. 1915, s. 63 ; W. A. 1893. e.
60: N. Z. 1915, s. 65 ; B. C. 1911, s. 20C (2) ; J. 1888, s. 50. In New-
Zealand, apparently, separate registration is necessary if an undivided
interest is to be dealt with.

s* Can. Torr. Syst. 73, 74. Presumably this only applies to document*
relating solely to the registered land.

85 Sas. 1917, s. 20 : Al. 1906, s. 17 ; Can. 1906. s. 38.

64 On. 1914, s. 15; 1911 Rules, r. 10.

Sect. 2] PROCEDURE. 59

In England the statutes and rules — exceptions in this respect —
do not require the title deeds to be retained in the registry, but
provision is made for marking them in such a way as to disclose the
fact of the land being registered.57 In the Leeward Islands — also
exceptional — the title deeds are to be retained in the registry, but
no provision is made for returning to the owner deeds relating to
other property, or for marking any of them with notice of the reg-
istration.58

In the remaining jurisdictions — Ireland, British Columbia,
Trinidad-Tobago, Jamaica, and the seven Australasian jurisdic-
tioDS 59 — the statutes provide for the marking of the deeds and the
retention in the registry of such of them as relate solely to the
registered land. In New South Wales, Queensland, Tasmania,
New Zealand, and Trinidad-Tobago, the word " cancel " is used,
but this appears to mean no more than endorsing a note of the
new registration. The eleven enactments above referred to, except
those of Ireland, British Columbia, and Queensland, also provide
that the deeds thus retained at the registry are not to be open to
public inspection, and this seems to be implied in Ireland by an-
other rule.60 In Queensland the right of public inspection is ex-
pressly, and in British Columbia impliedly, conferred by other
enactments.81 In Ireland, Victoria, Trinidad-Tobago, and Ja-
maica,62 provision is also made for recording the initial registration
at the deeds registry.

The object of marking the title deeds and otherwise recording
the initial registration is, in the words of the English and Irish
enactments, "that the fact of the registration [may not] be con-
cealed from a purchaser or other person dealing with the land."
That there is a danger of the old title deeds being fraudulently
used is shewn by two Australian cases, in which money was raised
on the deeds subsequently to the land being registered.63

"Eng. 1875. s. 72. A former rule (1903 Rules, r. 24) relating to
custody of deeds is now repealed.

"L. Is. 1886 (1914) ss. 5, 12, 13.

"I. 1891. s. 68. and 1910 O. 3. r. 11: B. C. 1911. ss. 31, 169: Tr.
1902, s. 28: J. 1888. s. 31; N. S. W. 1900, s. 29 : Q. 1861. s. 30: S. A.
1886. s. 42: Tas. 1862. s. 26: V. 1915. ss. 34. 35: W. A. 1893. ss. 35, 36:
N. Z. 1915, s. 30. "I. 1910, O. 3, r. 2.

"Q. 1877, s. 50, abrogating Q. 1861, s. 46: B. C. 1911. s. 147. And
see Aust. Torr. Syst. 754. The Queensland enactment is followed in Papua
(P. 1913. s. 124), and all deposited documents are open to public inspection.

"I. 1S91. s. 19 (4>. and 1910 O. 2, r. 9; V. 1915. ss. 34, 35 ; Tr.
1902, s. 18; J. 1889, s. 37.

*Rer v. White (1904) 4 S. R. (N. S. W.) 379: Reg. V. Thompson
(1882) S V. L. R. L. 12. The fraud in the latter case led to a claim
being made, though unsuccessfully, on the assurance fund : Oakden v.
Gib bs, ib. 380.

70 INITIAL REGISTRATION. [Ch. n.

Other points in the third and final stage of proceedings for
initial registration on voluntary application also apply in jurisdic-
tions in which there is no provision for voluntary applications. As
to the actual moment of registration becoming operative : Papua,
Fiji, Federated Malay States.64 As to relation back of the regis-
tration in some cases: Papua.85 As to incumbrances outstanding
at the time of initial registration: Papua, Fiji.66 As to issue of
duplicate documents of title : Papua, Fiji, Federated Malay States.67
As to stating the fact of an owner being under some disability :
Papua.68

The initial registration being now complete, the land is for the
future, and while it remains on the register, subject to the rules
of the new system so far as these modify the general law. Two
points require mention here : the publicity of the register, and the
relation of the new register to any existing deeds registry.

Only in England and Ontario is it enacted that the register
shall not be open to public inspection.69 In Fiji, Manitoba, Lee-
ward Islands and Federated Malay iStates, the statutes make no
express provision on this point, but the obvious intention is that
the register shall be open to public inspection, and in all four
" search " is one of the items for which a fee is payable. In
British Columbia, Saskatchewan, Alberta, and North-West Terri-
tories,70 publicity is implied by enactments enabling copies of the
register and documents to be demanded. In all other jurisdic-
tions— Ireland, New 'South Wales, Queensland, South Australia,
Tasmania, Victoria, Western Australia, Papua, New Zealand, Brit-
ish Honduras, Trinidad-Tobago, Jamaica 71 — it is enacted, either
expressly or by necessary implication, that the register shall be
open to public inspection. This does not, however, make docu-
ments such as plans which are at the registry public documents foi
the purpose of admissibility as evidence.72

The general principle as to deeds registries already in existence
is that the land on the new register is not affected by them. The

«4P. 1913, ss. 20, 32; Fi. 1876 (1906), s. 34; F. M. S. 1911. ss. 20, 28.

63 P. 1913. s. 104.

WP. 1913, s. 18; Fi. 1876 (1906) ss. 10, 11.

67 P. 1913, ss. 18, 32; Fi. 1876 (1906) s. 9 ; F. M. S. 1911, ss. 6. 27.

68 P. 1913, s. 18.

69Eng. 1875, s. 104, and 1903-8 Rules, rr. 284-295; On. 1914, s. 137.

70 B. C. 1911, s. 147 ; Sas. 1917, s. 20 ; Al. 1906, s. 17 ; Can. 1906, s. 38.

"I. 1891, s. 94 (1) (k), and 1910 O. 3, r. 2 ; N. S. W. 1900, ss.
115. 116 ; Q. 1861, ss. 121, 122 ; S. A. 1886. s. 65 ; Tas. 1862, ss. 105, 106 ;
V. 1915, ss. 196, 280; W. A. 1893, ss. 146, 239; P. 1913, ss. 123, 124;
N. Z. 1915, ss. 41, 42 ; B. H. 1914, s. 39 ; Tr. 1902, s. 50 ; J. 1888, s. 132.

72 Everingham v. Penrith Municipality (1916) 16 S. R. (N. S. W.)
238.

Sect. 2] PROCEDURE. 72

new system itself makes sufficient provision for registration of
transactions. In sixteen jurisdictions only are there separate deeds
registries. In British Columbia the registration statutes them-
selves provide for registration of instruments relating to unregis-
tered as well as registered land. In other jurisdictions — Papua,
Saskatchewan, Alberta, North-West Territories,73 Federated Malay
States — there is no deeds registry at all for transactions with un-
registered land.

Of the sixteen jurisdictions in which separate deeds registries
exist, in nine — New South Wales, Queensland, South Australia,
Tasmania*. Western Australia, New Zealand, Fiji, British Hon-
duras, and Trinidad-Tobago — the registration statutes themselves
contain no specific reference to deeds registries in connexion with
initial registration, but in five of these jurisdictions it is either
enacted by other statutes or declared by judicial decision or opinion
that instruments registrable at the titles registry under the new
system are not to be registered elsewhere, and that in general the
deeds registries have no concern with interests in registered land.
These five jurisdictions are : Xew South Wales, Queensland, New
Zealand, Fiji, and British Honduras.74 The above general rule
(with one exception) appears to apply equally in South Australia,
Tasmania, Western Australia, and Trinidad-Tobago.

In seven jurisdictions — England, Ireland, Ontario, Manitoba
Victoria, Jamaica, Leeward Islands 75 — the same general rule
(with an exception) that the deeds registry has no concern with
interests in registered land, is more or less explicitly enacted. In
Jamaica the enactment is least explicit, and in Manitoba an express,
and in Leeward Islands an implied, exception is made with respect
to contracts and instruments operating as such. In Ontario and
Victoria 76 the enactment is also contained in other statutes.

"In the North- West Territories (which formerly included what are
now the provinces of Saskatchewan and Alberta) the registry existing in
1886 seems to have been absorbed into the present registry on the intro-
duction of registration of title. There is an historical note on this sub-
ject in Re Canadian Pacific Ry. (1899) 4 Terr. R. 227. See also Can. Torr.
Syst. 69.

"New South Wales— Registration of Deeds Act 1897 (No. 22) s. 6.
Queensland— Finucane v. Registrar of Titles [1902] S. R. Q. 75, 77, 88.
New Zealand — Deeds Registration Act 1908 (No. 40) s. 2. Fiji— Regis-
tration Ordinance 1897 (No. 4 in 1906 ed.), s. 4 ; In re West (1890)
Udal's Fiji R. 227, 229. British Honduras — Recording of Deeds Act
(1914) c. 180, s. 2. And see Aust. Torr. Syst. 755. 756.

• "Eng. 1875. s. 127; I. 1891, s. 19; On. 1914, s. 15. and 1911 Rules,
r. 10: M. 1913. sts. 14, 29, 30, 37; V. 1915, s. 57; J. 1889, s. 37, and
1903, s. 3; L. Is. 1886 (1914) s. 6. And see Sander v. Ttcigg (1887)
13 V. L. R. 765. 773, 774, and preceding note.

79 Ontario— Registry Act (R. S. 1914. c. 124) ss. 3, 4. Victoria-
Real Property Act 1915 (No. 2719) s. 124.

72 INITIAL REGISTRATION. [Cn.u.

The above cited sections of the English Act (as amended) and
the Irish Act are expressly worded so as to apply only to the actual
estate or interest that has been placed on the register, and not to
estates or interests excepted from the initial registration of the
land. This appears to be the proper construction of the enact-
ments in other jurisdictions.

The exception above mentioned to the generality of the rule as
to the exclusion from deeds registries of all instruments relating to
registered land occurs in Trinidad-Tobago and Leeward Islands.77
There a collateral trust instrument may, instead of being merely
filed for reference in the titles registry, be actually registered in the
deeds registry. This is referred to in Chap. V. Sect. 2, post—
" Trusts, their protection and enforcement."

Independently of any question as to ordinary deeds registries,
it has been held that, where registration is by some general statute
(as a Companies Act) made essential to the validity of an instru-
ment or transaction, this requirement of the general statute is
sufficiently complied with by registration at a titles registry, when
the land affected is registered land.78

SECTION 3. — REMOVAL OF LAND FROM THE REGISTER.

There appear to be only six jurisdictions — England, Ireland,
Ontario, Manitoba, South Australia, and Western Australia x — in
which the statutes expressly refer to the removal of land from the
register after initial registration. In South Australia this re-
moval is forbidden ; in the other five jurisdictions it is permitted,
in Ontario and Manitoba on " special circumstances " being shewn,
and in England, Ireland, and Western Australia under certain
circumstances only. In England removal is permitted when the
land is not in a compulsory area; in Ireland where the owner is
" full owner " and the initial registration has* been voluntary ; in
Western Australia when the Crown has become registered owner.

There seems little doubt that, apart from special enactment,
the general intention of the statutes is that land once placed on
the register shall remain there.2 A difficulty however occurs in
regard to the case of land that has escheated or reverted to the
Crown. It has been said by the Privy Council that in such a case

77 Tr. 1902, s. 116: L. Is. 1886 (1914) s. 26.

78 Coronation Gold Mining Syndicate to Collins [1911] V. Ij. R. 78.
aEng. 1897. s. 17, and 1903-8 Rules, r. 95; I. 1891, s. 20, and 1910

O. 4, rr. 33, 34 ; On. 1914, s. 129, and 1911 Rules, r. 69 : M. 1913, s. 53 ;
S. A. 1886, s. 8; W. A. 1896, s. 6. And see Own. & Inc. 83; Aust. Torr.
Syst. 716, 719: Can. Torr. Syst. 125.

2 Some eases are cited in Aust. Torr. Syst. 716.

Sect. 3] REMOVAL FROM REGISTER. r.3

the land might no longer remain on the register.3 This dictum
would not necessarily apply in every jurisdiction, and the better
opinion seems to be that in any jurisdiction in which provision is
made for the Crown being a registered owner, the mere fact of
escheat or reverter to the Crown would not cause the de-registration
of the land.

In England, Ireland, Ontario, and Manitoba, the enactments
above cited also provide that on removal from the register the land
is to be again subject to the existing deeds registries. This would
also be implied in Western Australia, as in any other jurisdiction
in which de-registration was held possible.

In England land has been allowed to be removed from the
register by a mortgagee who had foreclosed under a title para-
mount to the registered title, the land having been initially regis-
tered subject to the mortgage as an incumbrance.*

'Belize Estate Co. v. Quitter [1897] A. C. 367. 372. under the
British Honduras statute.

♦See Eng. 1903-8 Rules, r. 151. as to the power of the registrar in
cases of paramount title. The case referred to in the text occurred in
the year 1917.

74 POSSESSION AND REGISTRATION. [Ch. hi.

CHAPTER III.— POSSESSION AND REGISTRATION.

SECTION 1. POSSESSION BEFOltE INITIAL EEGISTKATION.

One of the objects and results of initial registration is that the
register becomes (with some exceptions) conclusive evidence of
title, and interests in the land that do not appear on the register
are abrogated and disappear as enforceable rights of property.
The whole subject of the conclusiveness of the register and the
exceptions to this conclusiveness is dealt with in Chapter IV, post.
The present Chapter is concerned with one particular exception —
Possession. The separate treatment of this topic is justified by the
fact that it is an exception of great theoretical and practical im-
portance, and one of the few matters of principle on which the
various statutory systems are not uniform. In some jurisdictions
the statutes expressly save the rights of persons in possession of
land from the " wet sponge " effect of registration, but in some of
these again a sharp distinction is drawn between possession before
initial registration and possession afterwards.1

The question of the extent to which possession at the time of
initial registration prevails against the registered title is thus dis-
tinct from the question of the effect and value of rights acquired
by possession after initial registration, and the latter part of the
subject is dealt with in the next Section, post. The present Section
is concerned only with possession existing before and at the time
of initial registration, and the extent to which rights under that
possession are retained by the occupiers in spite of the registration
of another person as owner.

The general theory of the effect of registration is that it re-
places possession as the ordinary badge of ownership. There are
instances of the statutes — as in Queensland and Papua 2 — ex-
pressly making registration equivalent to possession for some pur-
poses. The earliest of the different lines of statutes from which
the present statutes have principally been derived contained no
exception in favour of the rights of persons in possession, other
than (in some cases) short occupation leases.3 Possession, how-

*See Aust. Torr. Syst 805-815; Jour. Comp. Leg. xv. 83 (1915) —
" The relation of Adverse Possession and Registration of Title."

2Q. 1861. s. 125; P. 1913, s. 146.

3 South ' Australia— Real Property Act (1857-8, No. 15) printed as
an appendix in Niblack'p Analysis of Torrens System, p. 381 ; Aust. Torr.

Sect. 1] POSSESSION BEFORE REGISTRATION. 75

ever, seems to have been one of " the principles of English law "
which " it was found could not be entirely ignored with advantage
even under the new system." 4 Mistakes have sometimes been
made, and the ownership of persons in possession of their land
has been ousted by a registered title obtained without their know-
ledge.5 A practice grew up in some jurisdictions of registering
an applicant as owner subject to " any rights subsisting under any
adverse possession of the land," when the applicant's own pos-
session was not satisfactorily proved.6 This adverse possession, a
note of which was made on the register, was held to be " an estate
or interest or incumbrance, subject to which the registered pro-
prietor takes " ; in the absence of any such note on the register, the
registered title — at any rate in the hands of a transferee — would
have prevailed over that of the person in possession.7 Being thus
defeasible, this interest of the person in possession was in the na-
ture of an equitable interest, operating by way of notice to pur-
chasers.

The plan of expressly noting adverse possession on the register,
in order to prevent rights under it being defeated, was soon aban-
doned in Victoria in favour of the scheme embodied in the present
statutes;8 it was enacted that registration should in all cases be
" subject to " any rights subsisting under any " adverse posses-
sion," following the wording of the clause formerly employed for
endorsement on the register, and the same scheme is in force in
Western Australia.9 The interest of the person in possession thus

Syst. 22, 31. British Honduras — Honduras Lands' Titles Acts, 1858 and
1859 (21 Vict. c. 10, 22 Vict. c. 18) : Aust. Torr. Syst. 20. British Columbia-
Land Registry Act 1861 (No. 8). England— Land Registry Act 1862
(c. 53).

4 The quoted words are from In re Martin [1900] S. A. R. 69. 79,
affd. by Privy Council sub nom. McEacharn v. Colton [1902] A. C. 104.

•Illustrations are: Bonnin v. Andrews (1878) 12 S. A. EL 153;
Hamilton, v. Iredale (1903) 3 S. R. (N. S. W.) 535.

*Fergie v. Byrne (1866) 3 W. W. & a'B. L. 56: Murphy v. Michel
(1867) 4 W. W. & a'B. L. 13. These cases were decided in Victoria,
under the Real Property Act 1862 (No. 140). which formed the model
for the New South Wales statute of 1862 (No. 9). and was subsequently re-
placed by the statute of 1866 (No. 301) on which the present statute
(V. 1915) is based.

T Murphy v. Michel, supra. The adverse possession, being a qualifica-
tion on the registered title and excepted from the registration, might be com-
pared to the interest protected under the Irish statute by the register being
marked *' subject to equities " : see I. 1891, s. 29.

'Staughton V. Brown (1875) 1 V. L. R. L. 150.

•V. 1915, s. 72: W. A. 1893. s. 68. This does not mean that initial
registration is effected regardless of possession. In all jurisdictions adverse
possession would be a blot on the title to be removed before the land was
registered, if brought to the notice of the registry.

76 POSSESSION AND REGISTRATION. [Ch. in.

ceased to be defeasible, and became a statutory and legal interest
operating irrespectively of notice to purchasers.10 In some other
jurisdictions initial registration is made subject only to the title
of persons who are in adverse possession and rightly " entitled " ;
this is so in South Australia, Tasmania, New Zealand, British Co-
lumbia, Manitoba, and Saskatchewan.11 In England and Ireland 12
some rights under possession, but not all, are protected against
the effect of initial registration. In most of the remaining juris-
dictions the protection expressly accorded to possession by the
statutes is, where the registered title is fully warranted, either nil
or limited to short leases or tenancies. In British Honduras,
Trinidad-Tobago, and Jamaica,13 the necessity for such protection
is obviated by the provision that an applicant for initial registra-
tion must be in possession {ante, p. 49).

The twenty-two jurisdictions exhibit broadly three phases of
the relation between registration and possession existing before
initial registration, and may thus be divided into the three follow-
ing groups:

1. Those in which mere possession may be superior to regis-

tration.

2. Those in which title coupled with possession is superior to
registration.

3. Those in which possession (except in some cases under oc-

cupation leases or short tenancies) is inferior to registra-
tion.

1. Possession superior to registration. — Victoria and Western
Australia exhibit this phase in its extreme form. The statutes 14
enact that " land " on the register is to be * subject ... to any
"rights subsisting under any adverse possession of such land . . .
" and also, where the possession is not adverse, to the interest of any
" tenant of the land," although these are not " specially notified
as incumbrances " on the register. Provision is also made for
the register being rectified in favour of any person who claims
to have " acquired " a title by possession against the registered
owner; the enactments in the two jurisdictions are differently
framed, but appear to have the same scope.15 In these enactments

10 Robertson v. Keith (1870) 1 V. R. 11; Staughton v. Brown, supra;
Lake v. Jones (1889) 15 V. L. R. 728.

11 S. A. 1886. s. 69 (6) ; Tas. 1862. s. 135 ; N. Z. 1915. s. 72 ; B. C.
1911, s. 22; M. 1913, s. 82; Sas. 1917. s. 61.

12 Bug. 1897, s 12; I. 1891, s. 52.

18 B. H. 1914, s. 7 ; Tr. 1902, s. 11 ; J. 1888, s. 22.

"V. 1915, s. 72; W. A. 1893, s. 68.

15 V. 1915, ss. 87-104 ; W. A. 1893, ss. 222-225.

Sect. 1] POSSESSION BEFORE REGISTRATION. 77

— both those relating to the substantive rights of persons in pos-
session and those dealing with procedure — no distinction is made
between possession prior to, and possession subsequent to, initial
registration; cases on rights acquired by possession prior to the
land being placed on the register apply equally where rights have
been acquired subsequently, and vice versa.

The effect of these enactments, as regards rights of persons in
possession at the time of the land being placed on the register, is
that the initial registration draws no line across these rights and
does not abrogate them in any degree. If a title by possession is in
process of being acquired, but the time limit prescribed by the rele-
vant limitation statute has not expired, the running of the statute
is not stopped, and a title by possession may possibly yet mature.
If such a title has already matured, the registration will afford the
registered owner no protection ; the person in possession can set up
his length of possession as a defence,16 or he may take active steps
to have the register rectified.17 If the person in possession is a
tenant only, his tenancy, and all rights springing out of it, are pre-
served intact, and are unaffected by the registered title.18 The in-
terest of a tenant has been construed so as to include every kind of
occupation, from tenancy at will to a right to the fee simple, so
that the enactments saving the rights of those in possession —
adversely or non-ad versely — in effect provide for all cases of pos-
session, whether it be that of a mere intruder or of a person claim-
ing as of right under a title good at law or in equity.19

Although not expressly and plainly provided for in Victoria
and Western Australia, these enactments do thus — as judicially
construed — cover the case of a person in possession of land under
a good title, documentary or otherwise, inconsistent with or
" adverse " to the title of an owner registered in respect of the
same land, notwithstanding that there is no relation of landlord
and tenant in the ordinary sense.20 Cases of small encroachments
between adjoining owners, particularly if buildings are concerned,
may also — though this is not always expressly done — be referred
to the operation of these enactments, where the registered title has

" Staughton v. Brotcn. and Lake v. Jones, supra.

"Murdoch v. Registrar of Titles [1913] V. L. R. 75 (though a title
by possession was in this ease held not to have been shewn! ; Tuckett v.
Brice [1917] V. L. R. 36. 60.

"Cases cited in Aust. Torr. Syst. 812. where a quotation is given
from Sandhurst Build. Soc. v. Gissing (1889) 15 V. L. R. 329 : Wilson v.
Equity Trustees Co. [1911] V. L. R. 481.

'•Cases in preceding note, and particularly Robertson v. Keith (1870)
1 V. R. 11; Commercial Bank v. McCaskill (1897) 23 V. L. R. 10.

w See particularly Robertson v. Keith, supra, and Black v. Poole
(1895) 16 Aust. L. T. 155.

78 POSSESSION AND REGISTRATION. [Ch. hi.

been held inferior to that of the owner in possession of a strip of
land wrongfully included in the registered title.21

In the event of the registered owner taking proceedings by ac-
tion to recover the land, the register will be sufficient prima facie
evidence of his title and his right to possession; proof of posses-
sion by the defendant for the statutory period under the appro-
priate limitation statute will defeat this prima, facie case, and the
registered owner will not be entitled to recover the land.22 The
registered owner will succeed in the event of the person in posses-
sion setting up a defence of adverse possession under the limitation
statute and failing to shew a sufficiently long period of possession.23
But the defendant in possession may be able to set up a case of ten-
ancy coupled with equitable right under a contract connected with
the tenancy, and this may amount to a composite interest superior
to the title of the registered owner, who will accordingly fail to
recover the land.24 The defendant may also be able to shew a good
title inconsistent with the registered title otherwise than as a mere
tenant, in which case also the' plaintiff (registered owner) will
fail to recover.25

Prior to the year 1880 in Western Australia and the year 1904
in Victoria, the statutes provided no means of rectifying the reg-
ister in favour of the person who was in possession and had a title
superior to the registered title, though an action could be brought
for rectification under the general jurisdiction of the Court.26
Amending enactments were passed making special provision for
registering the new title in place of the existing registered title.27

31 See Fergie v. Byrne (1866) 3 W. W. & a'B. L. 56: Pleasance v.
Allen (1889) 15 V. L. R. 601, observed upon in Zachariah v. Morrov
. (1915) 34 N. Z. R. 88.1. Against these two Victorian cases must be set
West Australian Ice Co. v. Frcecorn (1904) 7 W, A. R. 22, where the
registered title prevailed. But this Western Australian decision seems
opposed to the principles of the Victorian cases, and is also unsatisfactory
as purporting to follow a New South Wales case, though in the New South
Wales statute rights of possession are not saved as against the registered
title.

22 Murphy v. Michel (1867) 4 W. W. & a'B. L 13: Staughton V.
Brown (1875) 1 V. L. R. L. 150: Lake v. Jones (1889) 15 V. L. R. 728.

23 West Australian Ice Co. v. Freecorn (1904) 7 W. A. R. 22.

24 Sandhurst Build. Soc. v. Gissing (1889) 15 V. L. R. 329: Com-
mercial Bank v. McCaskill (1897) 23 V. L. R. 10.

25 Robertson v. Keith (1870) 1 V. R. 11. where the plaintiff in the
reported case had been defendant in an ejectment action ; Black v. Poole
(1895) 16 Aust. L. T. 155; Pleasance v. Allen (note 21, supra). But see
West Australian Ice Co. v. Freecorn, supra.

28 Robertson v. Keith, supra; In re Allen (1890) 22 V. L. R. 24.

27 W. A. 1893 ss. 222-225: V. 1915, ss. 87-104: Tuckett v. Brice
T1917] V. L. R. 36, 60. The Western Australian enactments are a re-
enactment of those of 1880. The Victorian enactments of 1904 were
repealed in 1914 and replaced by others drafted differently, and the latter
are now re-enacted in the present statute.

Sect. 1] POSSESSION BEFORE REGISTRATION. 79

These amending enactments expressly referred to title acquired
by length of possession under limitation statutes, and the present
Western Australian enactment is unaltered ; in Victoria the present
enactment refers only to the acquisition of a " title by possession/'
but the difference appears to be one of language only, and the
reference still seems to be only to title by length of adverse pos-
session and not to title acquired by a tenant by means of con-
tractual rights in connexion with the tenancy, or to the case of a
person holding under a good title otherwise than as a tenant.28 If
this is so, in both jurisdictions the procedure for enabling a person
in possession to take proceedings as plaintiff against the registered
owner, and have the register rectified in his favour, will apply only
where a title by length of possession under limitation statutes is
claimed, and not to cases of possession under tenancy, equitable
rights, or title otherwise good.29

The person in possession cannot take proceedings under these
enactments for rectification unless the land has been formally
placed on the register.30 Where the claim is based on length of
possession, possession for the requisite length of time must of course
be proved, and if when the possession began and the action is
brought the owner is unascertained, it has been laid down that pos-
session must be proved for the full period allowed by the limitation
statute in case of disabilities.31

There are only two other jurisdictions — England and Ireland 32
— in which inchoate rights under possession at the time of initial
registration are included in the rights expressly saved from the
effect of registration; but the effect of possession is not so wide or
so conclusive as in Victoria and Western Australia.

All registered land is in England subject to occupation tenancies
for 21 years and under "or for any less estate"; in Ireland to
occupation tenancies, for 31 years and under "or for any less
estate," and all "statutory tenancies" (tenancies under the Irish
Land Acts). This exception of "tenancies" from the effect of
registration is not the same as the exception in Victoria of " the

*See Tuetett v. Brice, supra. It may be however that the substitu-
tion of " possession " in the present enactment for " adverse possession "
in the former enactment (V. 1904) has had the effect of giving all persons
in possession the right of rectification. Even under the V. 1904 the title
by possession might have been " based upon a contract of sale from the
registered proprietor to the applicant" (s. 23).

■ Murdoch v. Registrar of Titles [1913] V. L. R. 75 : Tuclett v. Brice,
supra.

"Burns V. Registrar of Titles [1912] V. L. R. 2!).

■ Lamboume v. Ilosken [1912] V. L. R. 394.
"Eng. 1875. s. 18; 1S97. s. 12. I. 1891, ss. 47. 52.

80 POSSESSION AND REGISTRATION. [Ch.iii.

interest of any tenant," and the principle of the cases on the con-
struction of the Victorian enactment would not apparently apply.
It would seem therefore that a " tenant " with an agreement for
purchase of the freehold would not have such a title to the fee
simple as to enable him to override the registered title.

These statutes contain special enactments on the subject of ac-
quiring title to registered land by length of possession, and both
English and Irish enactments are difficult to interpret with con-
fidence. In England,33 among interests to which all registered
land is subject are. " rights acquired or in course of being acquired
under the Limitation Acts," so that initial registration would not
affect the rights of a person who had actually acquired a good title
by possession, and his possession and title should be superior to the
registered title. The rights of a person who had not yet gained a
complete title by possession would also remain unaffected until
the registered owner established his own title to possession. Thus,
under this enactment taken by itself (amendment to s. 18 of the
1875 Act) initial registration would draw no line across any rights
of persons in possession and relying solely on the Limitation Acts.
But the enactment is expressly made subject to the provisions of
the "Land Transfer Act 1897" (s. 12). That section does not
prejudice claims of persons in possession when the registration is
with " possessory " title only, so that as regards " possessory " title
the amendment to s. 18 applies completely. With regard to fully
warranted or "absolute" title, s. 12 of the 1897 Act does modify
the amendment to s. 18. Whilst declaring that a title adverse to
the registered title cannot be acquired by length of possession,
rectification of the register is in some cases allowed when title by
possession would have been acquired but for the registration stat-
utes. It is necessary for the person who claims a title by long
possession to obtain rectification of the register before he can
assert all rights of ownership, and rectification cannot be had
as against (inter alia) a registered transferee for value. Thus
the registered title of a transferee for value would be superior to
the title under mere possession, but until registration of such a
transfer the title under possession would be superior to the regis-
tered title. It is obvious that the necessity of applying for rectifi-
cation, and the risk of losing the right to rectification if a transfer
for value intervenes, make the rights of a person in adverse posses-
sion at the time of initial registration much narrower and less
conclusive than in Victoria and Western Australia. Nevertheless

83 Eng. 1875, s. 18: 1897. s. 12. An illustration of the most probable
meaning of the enactments is given in Br. & Sh. 327. And see Own. & Inc.
109, 110.

Sect. 1J POSSESSION BEFORE REGISTRATION. 31

initial registration does not, in England, actually draw a line
across rights or title under mere length of possession.

The statute in Ireland,34 differs from the English statutes in
the absence of provision for " possessory " registered title and of
any enactment expressly making registered land subject to rights
under Limitation Acts. Otherwise, s. 52 is to the same effect as
s. 12 of the 1897 Act in England, with this difference — that the
right to rectification is not ousted by the occurrence of a registered
transfer for value. The Irish section in terms refers only to
length of possession " commencing after the first registration of
the land." But any right or title under possession at the time of
initial registration appears to be abrogated by the enactment (s.
34) which makes the register " conclusive evidence of the title of
the owner." 35 This would make any reference to possession
before initial registration superfluous in s. 52, and would explain
why only possession commencing after initial registration is men-
tioned.36 The words " where any person but for the provisions of
this Act would have obtained a title by mere possession," cover
(according to the view taken here) both the rights under posses-
sion existing at the time of initial registration but abrogated by s.
34, and those abrogated by s. 52. Each class of rights is pre-
served substantially by the right to rectification being conferred,
and thus in Ireland initial registration avoids drawing a line
across rights or title under mere length of possession.

One feature common to the English and Irish statutes is that,
in protecting rights under possession, the word " adverse " is not
used, and it is only rights or title gained by mere possession under
Limitation Acts that are expressly protected. The case of a per-
son in possession under a good paper title is not (except as to cer-
tain tenancies) provided for. The argument (available in Vic-
toria and Western Australia) that ** adverse " includes possession
under a good paper title cannot be used here. Even actual posses-
sion for a period otherwise sufficient under Limitation Acts, but
based on title by deed and so not a title by mere possession, would
seem not to be protected as against the registered title in England
and Ireland. There seems to be no escape from so interpreting

"I. 1891. 88. 34, 52.

"Cases under other statutes appear to justify this statement: see
Murphy v. Michel (1867) 4 W. W. & a'B. L. 13; Belize Estate Co. v.
Quilter [1897] A. C. 367, 371.

"This interpretation of the statute seems the better; another is given
in Jurid. Rev. (1915) xxvii. 199. 200. and Jour. Comp. Leg. (1915) xv.
83, 86.

B.T.L. — 6

82 POSSESSION AND REGISTRATION. [CH. III.

these statutes that (say) 12 years' possession before initial regis-
tration would confer a title superior to the registered title, if based
on an unauthorized occupancy, whilst possession based on a valid
chain of title by deed might not do so.

2. Title and possession superior to registration. In six juris-
dictions— South Australia, Tasmania, New Zealand, British Co-
lumbia, Manitoba, and Saskatchewan 37 — a good title coupled with
actual possession may be superior to the registered title, and initial
registration only draws a line across rights under possession that
are merely inchoate and have not yet ripened into actual title ; in
Tasmania " the interest of any tenant," and in South Australia,
British Columbia, Manitoba, and Saskatchewan, occupation leases
or agreements for short terms (one to three years) are unaffected
by the registered title, whilst in New Zealand a lease or agreement
for less than three years is not invalid for want of registration.

The wording of all six enactments as to adverse possession is
almost identical — "adversely in actual occupation of and light-
fully entitled to " the land, though in British Columbia " posses-
sion " is substituted for " occupation." But the British Colum-
bia and Saskatchewan enactments differ from the others in an-
other respect, nothing being said as to the adverse possession
" continuing " ; in the other four enactments the title is only good
if the occupier " continues " in occupation. Apparently the occu-
pation would be sufficiently continuous if carried on by a successor
in title ; but at any rate a wife's occupation on her husband's deatli
has been held insufficient.38 These enactments make the regis-
tered title conclusive (except as to the mere possessory title called
in British Columbia " absolute fee ") against any adverse posses-
sion under limitation statutes that has not ripened into title, but
as against the registered title a title already good by length of pos-
session, and not lost by subsequent abandonment of occupation, is
superior.39

These enactments also include the case of actual possession
coupled with a good title, so that initial registration may be in-
effective against any good title as well as one good merely by length
of possession.40 The word " adverse " means adverse to the regis-
tered title, and " rightfully entitled " means with such a title as

37 S. A. 1S86. s. 60 (6. 8) : Tas. 1862, ss. 40. 135. and 1803, s. 0 : N. Z.
1015. ss. 72. 03 (2) ; B. C. 1011. s. 22: M. 1013. ss. 78. 82; Sas. 1017,
ss. 60, 61.

38 Burke V. Lock (1010) 6 Tas. K. 73.

89 Feather stone v. Ilanlon (1886) Badg. Dig. 4; Smith V. Registrar-
General [1000] S. A. R. 1.

40 Re Wright (1001) 2 Nich. & Stops, 74, under Tas. 1862, s. 135.

Sect. 1] POSSESSION BEFORE REGISTRATION. 33

would support the claim to possession but for the registered title,
whether this claim be by virtue of a lease from a former owner,41 or
under an independent title to the fee simple.42

With respect to protected tenancies, leases, or agreements for
lease, the term in South Australia is one year and under, in British
Columbia, Manitoba, and Saskatchewan, three years and under.
In Xew Zealand the term is under three years, but the statute is
not explicit as to such a lease receiving protection when created
before initial registration, though this seems to be implied. In
Tasmania the words " the interest of any tenant " are the same
as those used in the Victorian and Western Australian statutes, and
should apparently receive the same interpretation (ante, p. ??).
But the protection accorded in Victoria and Western Australia to
a tenant with other rights of possession clearly seems to be secured
in Tasmania and the other five jurisdictions by the provision pro-
tecting persons in possession and " rightfully entitled." Thus, in
South Australia, Tasmania, Xew Zealand, British Columbia, Mani-
toba, and Saskatchewan, tenants in the ordinary sense with agree-
ments for purchase will be protected and have a title to the fee
simple suj>erior to the title conferred by initial registration.

3. Possession inferior to registration. In the remaining
twelve jurisdictions all rights under possession, whether inchoate
only or complete, and with the exception of some short leases or
tenancies, are abrogated in favour of the registered title, where this
is fully warranted and not merely " possessory " (as in Ontario
and Leeward Islands). A line is thus drawn across these rights
by the initial registration of the land. That this is so seems clear
from the terms in which the conclusiveness of the register is stated
in the statutes and decided cases,4* and by the express exceptions
actually made. In those statutes of the present group which ex-
pressly preserve rights acquired by long possession — as in Jamaica,
Leeward Islands, Fiji, Federated Malay States — and in those which
expressly forbid the acquisition of such rights — as in Xew South
Wales and Ontario — the reference (when not so stated in terms,
as is done in Jamaica) appears to be to possession after initial
registration, and it seems to have been considered superfluous to
refer to possession before the registration.

n Franklin v. Ind (1883) 17 S. A. R. 1831, approved in Zachariah v.
Morrow (1015) 34 N. Z. R. 885.

• Rr Wriqht. supra.

•Sep Relhe Estate Co. v. Quitter \ 18971 A. (\ 8W, 371 : Murphy V.
Mirhcl (1867) 4 W. W. & a'B. L. 13 : Featherstone v. Hanlon (1886)
Bad*. Die. 4: Arnold v. Wall work ( 1890 » 20 N. S. W. 368: Josephson v.
Mason (1912) 12 S. R. (X. S. W.) 249.

84 POSSESSION AND REGISTRATION. [Ch. m.

Ill British Honduras and Trinidad-Tobago44 the statutes con-
tain no express mention of rights under possession or leases being
affected one way or the other by initial registration, though in both
it is enacted that an applicant must be in possession of the land to
entitle him to have it placed on the register. Leases in existence
at the time of initial registration are not referred to in the statutes
of New South Wales, Fiji, Leeward Islands, or Federated Malay
States, though it is implied in New South Wales and Leeward
Islands, and expressly enacted in Fiji and Federated Malay States
(but apparently with reference only to transactions after initial
registration) that short leases (up to three years) are independent
of the register.45 It is however held in New , South Wales (and
this would apply in Leeward Islands) that a short tenancy, though
not necessarily invalid for all purposes, may be wiped out by the
registered title of the lessor's transferee.46

In the remaining six jurisdictions — Ontario, Alberta, North-
West Territories, Jamaica, Queensland, and Papua — tenancies or
occupation leases up to three years, or (in Ontario) having up to
three years " yet to run," are not affected by initial registration.47

This Section may be summed up by the statement that only in
ten jurisdictions out of the twenty-two are rights under possession
(other than short leases) saved by express enactment from the
effect of initial registration; in these ten — England, Ireland, Vic-
toria, Western Australia, South Australia, Tasmania, New Zea-
land, British Columbia, Manitoba, Saskatchewan — the owner in
possession retains his ownership in varying degrees of security.

SECTION 2. POSSESSION AFTER INITIAL REGISTRATION.

This Section has to do with the acquisition of rights under
possession against the registered title, as distinguished from the
mere retention of rights. It will be found that only in seven juris-
dictions out of the twenty-two is the acquisition of rights by pos-
session prevented by express enactment ; in these seven the regis-
tered owner (with fully warranted title) is not liable to have his
title set aside in favour of a new owner in possession, though ten-

"B. H. 1914, s. 7: Tr. 1902, s. 11.

*»N. S. W. 1900. s. 53 (1) ; Fi. 1876 (1906) s. 50; L. Is. 1886 (1914)
s. 56 ; F. M. S. 1911, s. 37.

48 Arnold v. Walhcork, and Josephson v. Mason, supro.

47 On. 1914, s. 24 (1) (d) ; Al. 1906. s. 43 (d) ; Can. 1906. s. 73 (d) ;
J. 1888, s. 55; Q. 1877, s. 11; P. 1913, s. 29 (d). In Jamaica. Queens-
land, and Papua, the expression " tenancy " is used, and the word " occupa-
tion " omitted.

Sect. 2] POSSESSION AFTER REGISTRATION. go

ancies and occupation leases may in some instances be effectively
created without being registered.

The two questions — gaining title by possession under limitation
statutes, and the validity of unregistered tenancies or leases — are
quite independent of each other and are best treated separately.
There are three phases of the whole question treated of in this
Section: (1) Where no title is acquired by mere possession; (2)
Where title may be acquired by mere possession; (3) Tenancies
and occupation leases.

1. Xo title acquired by possession. Whilst in most jurisdic-
tions initial registration overrides title by possession already in
existence, on the other hand when the land is once on the register
title by possession can in most jurisdictions be acquired so as to
override the registered title. There are seven jurisdictions only —
Ontario, Xew South Wales, British Columbia, Manitoba, Saskatche-
wan, .South Australia, New Zealand 1 — in which the statutes ex-
pressly provide that title by mere length of possession cannot be
acquired, assuming the registered owner to have a fully warranted
title. (In Ontario and British Columbia,2 when the land is regis-
tered with possessory title only, the rights of persons in possession
at the time of initial registration are not affected by the registra-
tion). The enactments are all to the same effect, though varying
slightly in language, and that of Ontario is typical.

A title to any land adverse to or in derogation of the title of
the registered owner shall not be acquired by any length of pos-
session.'

Even a mortgagee may not be able to acquire title by mere
length of possession as against the registered owner his mort-
gagor.4 In Manitoba by express enactment, and in New Zealand
by judicial decision, the title of a mortgagee under a registered
mortgage is protected against the owner in the same way as the
title of the owner himself, and the mortgagee's rights over the land
are not affected by mere lapse of time.5

The enactments preventing the acquisition of any rights by
possession against the registered title are likely to prove unwork-

»On. 1914, s. 20: N. S. W. 1900. s. 45: B. C. 1911. s. 22 (3) ; M.
1913, s. 83 : Sns. 1917. s. 61 ; S. A. 1886. s. 251 ; N. Z. 1915. s. 60.

'On. 1914. ss. 12. 29: B. C. 1911. ss. 22. 23.

3 This enactment is also found in Nova Scotia (Land Titles Act 1903-4
(c. 47) s. 42). and New Brunswick (Land Titles Act 1914 (c. 22) s. 44).

'AmU v. National Trust Co. (1912) 45 Can. S. C. R. 618. 637.

■11 1913. s. 117 (also enacted as s. 24 (3) of the R. P. Lira. Act (R. S.
1913. c. 116). Campbell \\ Auckland Dist. Land Registrar (1910) 29
N. Z. R. 332.

86 POSSESSION AND REGISTRATION. [Ch.iii.

able eventually, since land might thus remain in perpetuity as* the
property of an owner who had long since abandoned all claim to it.6

2. Title acquired by possession. The acquisition of title by pos-
session under limitation statutes is provided for by express enact-
ment in eight jurisdictions — England, Ireland, Victoria, Western
Australia, Fiji, Jamaica, Leeward Islands, Federated Malay
States.7 Only in the statutes of Ireland and Jamaica is there any
express reference to the adverse possession commencing after the
land is registered, but (as pointed out ante, p. 84) the proper
construction of five of the enactments (the exceptions being those
of England, Victoria, and Western Australia) seems to be that the
general reference to the acquisition of title by possession should
be restricted to the case of possession commencing after initial
registration — rights under possession being (when already in
existence and not expressly preserved) abrogated by the initial reg-
istration itself. In other respects also the eight sets of enactments
exhibit great variety in their form.

In Victoria and Western Australia 8 the title acquired by the
person in possession is treated as a strictly legal interest against
which the registered title cannot prevail, whether the adverse pos-
session has commenced before or after initial registration, and
whether the land has or has not been transferred to a purchaser.
The registered title is always " subject ... to any rights subsisting
under any adverse possession," and provision is made for the reg-
ister being rectified accordingly when title has been gained by
sufficient length of possession. But even in the absence of any
such rectification, such an owner in possession would seem to have
the same power to deal with the land independently of the regis-
tered title as a person in possession before, and continuing in pos-
session after, initial registration {ante, p. 77). This right to
rectification may however be lost if after it has been gained by
reason of long possession, the registered owner succeeds in resum-
ing possession, or perhaps even if another person takes and holds
possession.9

"A uniform enactment on this subject is suggested jn Jour. Comp. Leg.
xv. 83, 89 (1915), and see xviii. 272 (1918). The absence of any provision
for gaining title by length of possession has been said to be " one of the
great flaws in the system " in New South Wales: Turner v. Myerson (1918)
18 S. R. (N. S. W.) 133, 136.

7 Eng. 1875, s. 18 (am.), and 1897, s. 12 ; 1. 1891, s. 52, 1910 0. 4, r. 28 ; V.
1915, ss. 72, 87; W. A. 1893, ss. 68, 222; Fi. 1876 (1906), s. 14; F. M. S.
1911,, s^8; J. 1888, ss. 53, 55 ; L. Is. 1886 (1914), ss. 8, 34, sch. A " indefeas-
ible."*

8 V. 1915, ss. 72, 87-104 ; W. A. 1893, ss. 68, 222-225.

'Johnson V. Templeton [1917] V. L. R. 339.

Sect. 2] POSSESSION AFTER REGISTRATION. 87

In England, Ireland, and Leeward Islands,10 the register is
conclusive so long as it remains unrectified, the right of the person
who claims by possession being a right to have the register rectified
on shewing a sufficient length of possession to give title under the
ordinary law. In England the right to rectification may be wholly
or partially lost by the land being dealt with for value. In Ire-
land and Leeward Islands transactions for value appear to have
no such effect on the right to rectification. In England and Lee-
ward Islands,11 if the registration is merely with possessory title,
all adverse rights of the person in possession are preserved, as in
Victoria and Western Australia. The distinction between the inter-
est of a person whose rights are in terms preserved notwithstanding
registration of the land, and that of a person to whom a statutory
right of rectification is expressly given, seems to be in principle the
distinction between a legal and an equitable interest. In the one
case registration has no effect on the actual rights of the person in
possession, in the other those rights run (in England) the risk of
being defeated by a transfer for value intervening, and (in all
three jurisdictions) cannot be enforced as rights of property until
proceedings have been taken and the register duly rectified.

In Jamaica 12 the registered title is subject " to any rights ac-
quired " over the land since initial registration " under any statute
of limitations." In Fiji and Federated Malay States 13 the regis-
ter is " subject to challenge " amongst other grounds " on the
ground of adverse possession in another for the prescriptive period."
In none of these three jurisdictions is any machinery provided for
enforcing these rights under possession or rectifying the register
at the instance of the person who has acquired title to the land.
The case law in Victoria, as it stood before statutory provision
was made for enabling the owner by possession to get himself
formally placed on the register, seems applicable,14 and the title
acquired — even before formal registration — would seem to be (as
in Victoria and Western Australia) a strictly legal one, superior
to the registered title.

MEng. 1897. s. 12: I. 1891, s. 52: L. Is. 1886 (1914). s. 34.

"Eng. 1875, ss. 8, 18 (am.) ; L. Is. 18S6 (1914), s. 126.

"J. 1888, ss. 53, 55.

,sFi. 1876 (1906). s. 14; F. M. S. 1911. s. 8. Though the enactment
in Federated Malay States is identical with that in Fiji, it has been
held that a title by possession cannot be acquired in the Federated Malay
States against the registered title: Yap Leng Hin v. Khoo Poh Ghin
(1903) 9 Str. Sett. R. Appx. 71. The soundness of this view seems open
to doubt, and the contrary view seems to be generally held : see Innes
I\ If. S. 61.

14 In re Allen (1896) 22 V. L. R. 24; Robertson v. Keith (1870) 1
V. R. 11 : Tuckett v. Brice [1917] V. L. R. 36, 60. See ante, p. 78.

88 POSSESSION AND REGISTRATION. [Ch. III.

In seven jurisdictions — Tasmania, Queensland, Papua, Alberta,
North-West Territories, British Honduras, Trinidad-Tobago —
there is no express enactment as to the effect of long possession or
limitation statutes. The matter has been the subject of judicial
decision, and the balance of authority is in favour of the view that
the limitation statutes do apply (when not expressly excluded) to
registered as well as to unregistered land.

The limitation statutes have been held to apply to registered
land in Tasmania,13 Alberta,16 and British Honduras.17 It has
been said that they do not apply in Queensland.18 The result of
the Privy Council decision on the British Honduras statute, sup-
plemented by the Alberta cases, is that the limitation statutes apply
equally whether included in the same code or consolidation as the
registration statutes, or enacted separately. It is submitted that
both in Queensland, and in other jurisdictions where the registra-
tion statutes are silent, the limitation statutes should be held to
apply to registered land.

As to the exact method of the application of the limitation
statutes, that adopted in Tasmania has some resemblance to the
method enacted in the English statute (1897, s. 12), under which
a registered transfer for value defeats the right of the person in
possession to rectification, and in effect stops the limitation statute
running (or makes it begin to run afresh) against the new regis-
tered owner. It is held in Tasmania that a title by adverse pos-
session can only be acquired if the statutory period of 12 years has
elapsed since the date of the then existing register or certificate of
title; the issue of a fresh certificate of title destroys all inchoate
rights under possession.19 Such a fresh registration should on
principle include the case of a transferee who is merely entered on
the register as owner in place of the transferor without having
a new certificate of title made out in his own name, but such a case
does not fall literally within the words of the statute or the deci-
sions on it. On the other hand a new certificate of title does not
necessarily represent a transaction for value, though this is covered
by the decisions. The registration (in favour of a purchaser or
otherwise) of a fresh certificate of title would seem to destroy both
an inchoate right and a complete title under possession. This

15 Feather stone v. Ilanlon (1886) Bads. Dig. 4; Re Bartlett (1907) 4
Tas. R. 26; Burke v. Lock (1910) 6 Tas. R. 73.

"Harris v. Keith (1911) 16 West. R. 433 (Al.) ; Wallace v. Potter
(1913) 24 West. R. 262 (Al.).

"Belize Estate Co. v. Quilter [1897] A. C. 367.

"Haltby v. Pang See [1911] S. R. Q. 1*2.

19 Cases in note 15. supra. ,.

Sect. 2] POSSESSION AFTER REGISTRATION. g9

reduces the title acquired under limitation statutes from a com-
plete legal interest (such as exists in Victoria) to an equitable or
defeasible interest, liable to be lost if rectification of the register
be not obtained promptly. This right to rectification appears to
follow as a natural consequence of the acquisition of a new title
against the registered title.20

In British Honduras the question of the effect of the registra-
tion of transactions on the operation of the limitation statutes
seems not to have been raised in any reported case. In Alberta
it was at first doubted whether the Court was justified in making
a declaration of title in favour of the person who has acquired a
title by possession.21 In a later case a declaration of title was made
in favour of the title under possession, but rectification of the
register was refused.22 This seems wrong, and on the authority of
the Tasmanian and Victorian cases above referred to, and the
general principle of the inherent jurisdiction of the courts to con-
trol the register, the acquisition of title by possession against the
registered title should carry with it the right to have the register
rectified accordingly. But no declaration of title or rectification
can be had as against a registered owner who has regained posses-
sion.23

Where the register is rectified, and the new owner placed on
the register in lieu of the former registered owner, this amounts
to a transfer of the former owner's fee simple to the new registered
owner, though under the general law the result of the extinguish- ^
ment of an owner's title by the limitation statutes is not to transfer
his ownership to the new owner.2*

The rule laid down in Tasmania is to the effect that each fresh
registration of an owner — in succession to a preceding owner or
otherwise — abrogates all existing rights and title that are incon-
sistent with the registered title, but that a person who can shew
continuous adverse possession for the necessary period under limi-
tation statutes, since the owner then on the register was placed
there, acquires title against that owner and can have the register
rectified accordingly. If the limitation statutes do — as seems the
better opinion — apply in all jurisdictions where the statutes are

10 Re Bartlett (1907) 4 Tas. R. 26. And see In re Alien (1896) 22
V. L. R. 24; Robertson v. Keith (1870) 1 V. R. 11.

■ Harris v. Keith (1911) 16 West. R. 433 (Al.).

"Wallace v. Potter (1913) 24 West. R. 262 (AL). In re Allen and
Re Bartlett were not cited. A Trinidad case, where a declaration of title
was refused, seems to have wrongly decided : Seecharan v. Jugdeo Maraj
(1909) 1 Tr. & Tob. 344.

23 Sinclair v. McLennan [1919] 2 W. W. R. 752 (AL).

" See Own. & Inc. 47, quoted with approval 'in Innes F. M. S. 61.

90 POSSESSION AND REGISTRATION. [Ch.iii.

silent on the point, there seems to be no reason why the precise
method of their application should not be as laid down in Tasman-
ian cases, the limitation statutes beginning to run against every
successive registered owner from the date of his being placed upon
the register.

3. Tenancies and occupation leases. In most jurisdictions ten-
ancies and occupation leases can be created independently of the
registered title, in some registration is not necessary at all, in
others it is permitted but is not compulsory, whilst in others again
complete protection can only be secured by registration.

In nine jurisdictions — England, Ireland, Ontario, British Co-
lumbia, Manitoba, Saskatchewan, Alberta, North-West Territories,
Jamaica 25 — the registered title is subject to unregistered tenancies
and occupation leases of a certain length, in England 21 years "or
any less estate," in Ireland 31 years " or any less estate "' and all
" statutory tenancies," in other jurisdictions three years. In Ire-
land and Manitoba provision is made for registration of leases gen-
erally, in other jurisdictions of leases other than those above-men-
tioned. In all nine jurisdictions the validity of these tenancies
and occupation leases without registration is clearly implied, as also
their superiority to the registered title. A difficulty however may
occur in determining whether the interest is within the length of
term protected, as for instance whether a right of renewal consti-
tutes a lease for a longer term.26 A sub-lease for an indefinite
period by a monthly tenant is necessarily a term for less than three
years.27

The exception of certain tenancies and leases from the effect of
initial registration, and the result in cases where the tenant has an
agreement for purchase of the freehold, has been referred to ante,
p. 77. In the event of any such tenancy coming into existence
after initial registration, the title of the tenant would apparently
have the same relation to the registered title as if it were in exist-
ence before initial registration.

In seven jurisdictions — Queensland, South Australia, Papua,
New Zealand, Fiji, Federated Malay States, Trinidad-Tobago,28 —

26Eng. 1875. ss. 18 (7). 50; I. 1891, ss. 44, 47 (h) ; On. 1014, ss.
24 (1) (d), 70; B. C. 1911, ss. 22 (1) (d), 29; M. 1913, ss. 78 (d) . 101;
Sas. 1017, ss. 60 (rf). 92; Al. 1906, ss. 43 (d), 54; Can. 1906, ss. 73 (d),
88; J. 1888, ss. 55. 70.

26 See St. Albert R. C. Episcopal Corp. v. Sheppard (1913) 23 West.
R. 282 (Al.) ; and a Victorian case, Roberts v. Bvrkley (1888) 14 V. L. R.
819.

27 Siau Kam Ki v. Tsang Heng Chun (1912) Innes F. M. S. 167.

" Q. 1877, ss. 11, 18 ; S. A. 1886, ss. 116. 119 ; P. 1913, ss. 29, 41, 42 ;
N. Z. 1915, s. 93; Fi. 1876 (1906), ss. 49, 50; F. M. S. 1911, ss. 36, 37:
Tr. 1902, ss. 67. 68.

Sect. 2] POSSESSION AFTER REGISTRATION. 91

tenancies and occupation leases (one year and under in South
Australia and Fiji, under three years in Xew Zealand, three years
and under in other cases) are not invalid for want of registration,
but are expressly permitted to be registered,29 Apparently registra-
tion adds nothing to the validity of such leases — if leases and noth-
ing more — as against the registered title of the reversioner, though
in the event of there being two competing leases registration might
perhaps confer priority. But in South Australia and Papua a right
of purchase or renewal is not protected against a subsequent pur-
chaser unless the lease is registered or protected by caveat, and in
Fiji and Federated Malay States a right of purchase is similarly
not protected unless the lease is registered. In Xew Zealand and
Queensland (though not in Trinidad-Tobago), these rights of pur-
chase and renewal seem to be secure, as well as the lease itself,
against the registered title — even of a purchaser.30 And a licensee
" in actual visible occupation " has the same rights as an actual
tenant.31

Xew South Wales and Leeward Islands 32 stand by themselves
with respect to short leases. The registered title is not made sub-
ject to any leases or tenancies, and the sections authorizing leases
relate to leases "exceeding three years" (in Xew South Wales),
and "for three years and upwards" (in Leeward Islands). The
better opinion seems to be that other leases — for less than or not
more than three years — are as valid against the lessor (whether in
writing or not) as they would have been under the ordinary law,
but that additional protection may be gained by being entered on
the register in some way. The Australian cases on the Xew South
Wales section and similar sections in other jurisdictions, some of
them now repealed or amended, do not present a consistent theory
with respect to these short leases.33 The view that interprets the
statutes as saying " that every pre-existing interest for less than
three years shall be void " 3* must be considered as now discredited.35
A choice has to be made between the view that regards a short lease
unregistered as in the nature of a legal interest, the view that
regards it rather as an equitable or defeasible interest, and
a compromise between the two. All three views find expression in

" Illustrations in Federated Malay States are : Siau Kam Ki v. Tsang
Heng Chun (1912) Innes 167: Yio Then Sang v. Cheng Sing. ib. 182. As
to Trinidad-Tobago, see Potter v. Sampson (1913) 2 Tr. & Tob. 274.

-Finnoran v. Weir (1887) 5 N. Z. S. C. 280: Rutu Peehi v. Davy
(1890) 9 N. Z. R. 134; Fels v. Knoicles (1906) 26 N. Z. R. 604. See Tr.
1902, s. 68.

* Pukuweeka Sawmills v. Wither [1917] N. Z. R. 81.

"N. S. W. 1900. s. 53; L. Is. 1886 (1914), ss. 56, 57.

"See Aust. Torr. Syst. 811. 813.

u Manning v. Grossman (1871) 5 S. A. R. 130.

"See for instance Josephson v. Mason (1912) 12 S. R. (N. S. YV. 249.

92 POSSESSION AND REGISTRATION. [Ch. hi.

South Australian cases.30 In Tasmania (as formerly in New
Zealand) a short lease unregistered has been held to be strictly a
legal interest, not affected by the provisions of the registration
statutes, and indeed not capable of registration.37 In New South
Wales itself the compromise view has been adopted, and it is held
that a legal tenancy (as distinguished from a mere agreement en-
forceable in equity) for three years or less may be created by the
registered owner even without writing, but that this tenancy
(though valid against the lessor himself) is liable to be displaced if
not entered in some way on the register, in the event of the land
being transferred on the register to a new owner.38

Tasmania, Victoria, and Western Australia 39 are distinguished
from other jurisdictions in making the registered title subject to
" the interest of any tenant," though the sections authorizing leases
relate (as elsewhere) expressly to leases "exceeding three years/'
Leases for three years or less need not, of course, be — though they
usually are — occupation leases. But for most purposes an interest
under a short lease in these three jurisdictions will be sufficiently
protected as " the interest of any tenant." In Victoria and West-
ern Australia these short leases are, however, valid without regis-
tration, though they are not regarded as unregistrable 40 — the New
South Wales rather than the New Zealand and Tasmanian view
obtaining in this respect. The nature of the rights conferred by
the saving of the tenant's interest from the effect of registra-
tion is the same, whether the tenancy he created before
or after initial registration.41 A " tenant " is " any person who
is the holder in actual possession, not adverse, of the land " on
the register, and the protected tt interest " of such a tenant * in-
cludes all rights in respect of the land either springing out of or
accompanying such actual possession " ;42 thus what amounts to a

"Tranter v. Lord (1874) 8 S. A. It. 81; Buckett v. Knobbe, ib. 86;
Hunter v. Player (1875) 9 S. A. R. 100.

37 Finnoran v. Weir (1887) 5 N. Z. S. C. 280 (under a repealed Act) ;
Oangell v. Townsend (1911) 7 Tas. R. 107. The latter case was decided
under Tas. 1862, s. 47 (still in operation), and not under s. 40, which
has been amended (Tas. 1893, s. 9) on the lines of the Victorian statute
V. 1915, s. 72.

88 Arnold v. Wallwork (1899) 20 N. S. W. 368; Josephson v. Mason
(1912) 12 S. R. (N. S. W.) 249.

" Tas. 1862, ss. 40, 47 ; V. 1915, ss. 72, 131 ; W. A. 1893, ss. 68, 91.
And as to sub-leases : Tas. 1893, s. 12 ; V. 1915, s. 139 ; W. A. 1893. s. 99.

40 Roberts v. Birkley (1888) 14 V. L. R. 819; Roberts v. Huntington
(1901) 3 W. A. R. 33. Guest's Transfer of Land Act 90.

41 Black v. Poole (1895) 16 Aust. L. T. 155, follg. Sandhurst Build.
Soc. v. Oissing (1889) 15 V. L. R. 329. Other cases are cited antef p. 77.

* Sandhurst Build. Soc. v. G-issing, supra, at p. 331.

Sect; 2] POSSESSION AFTER REGISTRATION. 93

fee simple title good against the registered title can be created by
the registered owner letting into possession a person who is entitled
to purchase the fee simple,43 or to whom a gift of the land has been
made without formal transfer.44 Xo special machinery is pro-
vided— as is done in Victoria and Western Australia with respect
to title gained by possession under limitation Acts — for enabling
the register to be rectified, but this could be done under the general
jurisdiction of the courts. These observations on " the interest of
any tenant " apply equally in Tasmania, notwithstanding that the
rights saved from the effect of registration do not expressly include
—as is done in Victoria and Western Australia — rights by adverse
possession under limitation Acts.

The creation of an ownership in the tenant which shall be
superior to the registered title opens up the same possibilities as the
acquirement or creation in Victoria and Western Australia of any
ownership under possession which shall be superior to the registered
title (ante, p. 77). In the case of a tenant as well as an "adverse "
occupier, land on the register might be dealt with to an indefinite
extent without reference to the registered title.

In the British Honduras statute no special mention is made of
tenancies or leases in their relation to the registered title.

With reference to the wide variations in the effect given in dif-
ferent jurisdictions to possession as against the registered title, it
will be noticed that Victoria and Western Australia at one end of
the scale make possession superior to registration, whilst New South
Wales at the other end of the scale makes registration superior to
possession. This applies both to adverse possession and tenancies
— both before and after initial registration. From a practical point
of view the most reasonable compromise between these extremes
would seem to be that adopted in South Australia and Fiji with
respect to tenancies, and that adopted in England with respect to
adverse possession. In the one case a short tenancy only requires
registration if coupled with an agreement for purchase or renewal.
In the other, title under limitation Acts can be acquired against a
registered owner who will neither sell nor take the trouble to keep
his land in his own possession.45

** Sandhurst Build. Soc. v. Gissing. supra.

"See Matthews v. Matthews [1913] V. L. R. 80 : Wilson v. Equity
Trustees Co. [1911] V. L. R. 481.

*• See the suggested uniform enactment in Jour. Com p. Leg. (1915)
xv. 83. 89.

94 CONCLUSIVENESS OF REGISTER. [Ch. if.

CHAPTER IV.— CONCLUSIVENESS OF THE REGISTER.

SECTION 1. MEANING AND LIMITS OF CONCLUSIVENESS.

The conclusiveness of the register constitutes the State warranty
of title which it is one of the purposes of the registration statutes
to bring into existence. The warranted title which is conferred by
nJ£ the register being made conclusive is often called " indefeasible,"
whilst the register is sometimes spoken of as " indefeasible " and
the registered title as " conclusive." It has been said that " an
indefeasible title means a complete answer to all adverse claims "
on mere production of the register, and that a person acquiring
title from a registered owner has, on being himself registered, " an
indefeasible title against all the world." J The cases cited illus-
trate the strength of the registered title, but the indefeasibility or
conclusiveness has its limits and exceptions — as shewn by the pro-
ceding chapter (Chap. Ill) on Possession. Moreover, the two
cases just cited illustrate the principle that conclusiveness may
exist as regards the same property for one owner and not for a pre-
decessor or successor in title; this is sometimes expressed by saying
that the conclusiveness of the register, or the indefeasibility of title,
exists for the benefit of a purchaser rather than a vendor.

The register is not literally conclusive as to every possible mat-
ter that is or might be stated in it, nor does the State warranty of
title extend literally to every possible interest in the land. The
owner and his property (even where the title is a fully warranted
one) are still subject to the ordinary rules of law, so far as these are
not altered by the registration statutes.2 These statutes do not
even purport to make the register completely conclusive, but in
every one of them there are express exceptions.

The statutes make the register conclusive by enacting to the

. effect : ( 1 ) That the title of the registered owner is to be as stated

"^ on .the register; (2) That no claims inconsistent with the title as

stated on the register are to be enforced against the owner. Of

these enactments the first is the most important ; it is found in the

statutes of all the twenty-two jurisdictions, and in fact is sufficient

1 Temple v. North Vancouver Corp. (1913) 25 West. R. 245 (B.C.) ;
Fels v. Knowles (1906) 26 N. Z. R. 604. 620. And see Hudson's Bay Ins.
Co. v. Creelman [1919] S W. W. R. 9 (Privy Council).

2Beatty v. Bailey (1912) 26 O. L. R.- 145, 149 : In re Skill and Thomp-
son '(1908) 17 O. L. R. 186. 194; McClennan v. Powassan Lumber Co.
(1908) 15 O. L. R. 67. 68. affd. 17 O. L. R. 320. And see post as to
effect of general legislation.

Sect. 1] MEANING OF CONCLUSIVENESS. 95

without the second. The second enactment does not appear in all
the statutes, but is omitted in England, Ireland, Ontario, South
Australia, Leeward Islands, Fiji, and Federated Mala}' States.

The form of the first of these enactments varies. In England,
Ireland, Ontario, and British Columbia,3 the statutes enact that the
first registered owner and transferees from registered owners take
a fee simple (or leasehold, as the case ma}' be) free from other
estates and interests ; only in Ireland is it expressly declared that
the register is " conclusive evidence " of the owner's title. In
South Australia 4 the title of the registered owner is " absolute and
indefeasible," and the register is (except in certain cases) " con-
clusive evidence " that the person named as taking an interest is
entitled to that interest. In Leeward Islands the register is
" indefeasible," and in Fiji and Federated Malay States the register
is " conclusive evidence " that the person named in the register " is
the absolute and indefeasible owner " of the land.5

In Manitoba 6 the register is " conclusive evidence " that the
person named is entitled to the interest " specified " in it. So in
New South Wales, Queensland, Tasmania, Papua, Xew Zealand,
Saskatchewan, Alberta, Xorth-West Territories, and Trinidad-
Tobago,7 adding that (with certain exceptions) the registered title
is free from all other estates and interests. In Victoria, Western
Australia, and Jamaica,8 the register is " conclusive evidence " that
the person named as having an interest or power has that interest
or power, free (with certain exceptions) from all other incum-
brances. In British Honduras • the person who according to the
register appears to be entitled "shall be entitled accordingly," "to
the exclusion of all other " interests " not being equitable estates
or interests."

The form of the second of the two enactments above referred to
is nearly uniform in the jurisdictions in which it is found. In
British Honduras,10 after ten years from initial registration claims
in respect of any legal interest (" not being an equitable interest or
right ") inconsistent with the registered title are " absolutely
barred" and "absolutely extinguished." In the remaining juris-

•Eng. 1875. 88. 7-9. 13. 30-35. 38; I. 1891. ss. 30, 34. 30. 53; On.
1914. ss. 1013. 18-20. 42-45: B. C. 1911. ss. 22. 23. 102.

4S. A. 1886. ss. 68-70. 80.

*L. Is «*M (1914), ss. 8. 10. 125. 126. srh. A " indefeasible." "land,"
"owner": Fi. 1876 (1906). s. 14: F. If. S. 1911. ss. 8, 28.

•M. 1913. s. 79.

*N. S. W. 1900. ss. 40. 42: Q. 1861. ss. 33. 44: Tas. 1862. ss. 33. 40:
P. 1913 ss. 19. 29: X. Z. 1915. ss. 58. 68: Sas. 1917. ss. 59. 174; Al. 1906,
ss. 42. 44: Can. 1906. ss. 72. 174: Tr. 1902. ss. 39. 47.

• V. 1915. ss. 67. 72 ; W. A. 1893. ss. 63. 68 : J. 1888. ss. 53. 55.

•B. H. 1914. s. 30. ,0B. n. 1914. s. 16.

96 CONCLUSIVENESS OF REGISTER. [Gh. iv.

dictions — five. Canadian, seven Australasian, Trinidad-Tobago,
and Jamaica 1] — -it is enacted that (with certain exceptions) no
action for recovery of land is to be brought against a registered
owner, and the production of the register is to be a bar to any such
action.

The warranty of title given by the statutory conclusiveness of
the register operates in two ways, and the register has two func-
tions— affirmative and negative respectively. Affirmatively, the
register warrants that the title of the owner is as stated on the reg-
ister; negatively, the. warranty is that the owner's title is not
affected by anything that is not stated on the register. This is
equivalent for many purposes to a warranty that the owner's legal
title is as it appears to be on the register, and that there are no
equitable interests enforceable against the owner, other than any
actually notified on the register.

So far as it is affirmatively evidence of the owner's title, the
register puts him in much the same position as if his title to the
legal estate had been duly investigated and found satisfactory ;12
in some respects it does more, in some less. The register, however,
operates not merely by declaring good a title found to be so, but
confers the title stated, notwithstanding that, but for the registra-
tion, the registered owner would have no title at all.13 This opera-
tion of the register in actually conferring title resembles that of
limitation statutes. But there is much more than a bar of legal
remedies, for the title (if any) of the hostile claimant is completely
abrogated and in effect transferred to the registered owner, confer-
ring on the latter a title good against the world.14

11 B. C. 1911, ss. 25A, 25B; M. 1913, ss. 84, 85; Sas. 1917, s. 159;
Al. 1906. s. 104; Can. 1906, s. 142; N. S. W. 1900. s. 124; Q. 1861, s.
123; Tas. 1862, s. 124; V. 1915, s. 244; W. A. 1893 s. 199; P. 1913, s.
144 ; N. Z. 1915, s. 59 ; Tr. 1902, s. 132 ; J. 1888. s. 135. As to what is an
action " for recovery of land." see Sutherland v. Spruce Grove Municip.
[1919] 1 W. W. R. 274 (AL).

12 Though this is the purpose of statutes setting up registration of
title, the Australasian model has been called " a very clumsy expression of
an admirable principle": Miller v. Davy (1889) 7 N. Z. R. 515, 524.

u Hamilton v. Iredale (1903) 3 S. R. (N. S. W.) 535; Farah v.
Glen Lake Mining Co. (1908) 17 O. L. R. 1 ; Kennedy v. Suydam (1916)
36 O. L. R. 510: Commonwealth v. State of New South Wales (1918) 25
C. L. R. at 341, 342.

14 See Bonnin v. Andrews (1878) 12 S. A. R. 183, approved in Assets
Co. v. Mere Roihi [1905] A. C. 176, 212. The position taken in the text
is illustrated by the following passage from a judgment of the Privy
Council distinguishing the Jamaica Statute of Limitations from correspond-
ing English statutes : '' This possessory law is framed upon a different
principle from our Statutes of Limitation. It is rather of the nature of
the usucapio of the Roman law, or the positive prescription of the law of
Scotland. It does not bar the legal remedies if the parties do not pro-
ceed within a certain time, but it converts a possession for seven years

Sect. 1] MEANING OF CONCLUSIVENESS. 97

So far as the register is negatively evidence of title, the most
important effect is that the owner is protected against the opera-
tion of the equitable doctrine of constructive notice. Equitable
interests that are not notified in any way on the register are not to
affect the owner as rights of property. The existence of equitable
or other unregistered interests may be shown by entries on the
register, and the registered title will be subject to these, but the
register merely asserts their existence and gives no warranty as
to their validity or the title of the persons claiming them. The
register operates, in fact, with respect to those interests that are
merely notified or entered on it as a kind of notice of them, though-
mere entry on the register is not always or necessarily effective
notice to all the world ; this aspect of the register's functions is re-
ferred to post in Sect. 6 — " Notice."

In addition to the general enactments making the register con-
clusive evidence of title, there are scattered up and down the statutes
enactments making the register conclusive for particular purposes;
for instance, between vendor and purchaser,13 notwithstanding
irregularities in procedure,16 or even notwithstanding notice of
some such interest as a writ of execution.17

The principle of the register being conclusive for one owner
and not for another is illustrated by enactments which make the
registered title of a purchaser for value good, notwithstanding that
the register would not have been conclusive in favour of his vendor.
Some of these enactments are included in others already cited. In
eight Australasian and three Canadian jurisdictions, Trinidad-
Tobago, and Jamaica,18 there are additional enactments protecting
bona fide purchasers for value and making the register conclusive
in their favour, notwithstanding exceptions which might have made
it inconclusive as regards their predecessor in title. By these enact-
ments (except in Alberta and North-West Territories) the pur-

under a deed. will, or other conveyance, into a positive, absolute title.
against all the world": Beckford v. Wade (1805) 17 Ves. 87, 88; 11 R. R.
20. 21.

MEng. 1897, s. 16: X. S. W. 1900. s. 44 : Q. 1861, s. 96; Tas. 1862,
s. 115 ; V. 1915, s. 71 ; W. A. 1S93, s. 67 : P. 1913, s. 31 ; J. 1888. s. 54 ;
Al. 1906. s. 136: Can. 1906. s. 175.

MEng. 1875. s. 92; I. 1891. s. 82 (3); On. 1914, s. 113; B. C.
1911. s. 121A: Sas. 1917. s. 208; Al. 1906. s. 45; Can. 1906. s. 193;
N. S. W. 1900, s. 40 (2) : Q. 1861. s. 33: Tas. 1862. s. 33; V. 1915, s. 67;
W. A. 1893, s. 63 ; N. Z. 1915, s. 71 ; Tr. 1902. s. 29 ; J. 1888, s. 53.

"N. S. W. 1900, s. 105. and corresponding sections in Aust. Torr.
Syst. 788 ; V. 1915, s. 178.

MK S. W. 1900. s. 135; Q. 1861, s. 126: S. A. 1886, ss. 71, 207; Tas.
1862, s. 126; V. 1915, s. 247: W. A. 1893. s. 202; P. 1913. s. 147: N. Z.
1915. s. 198 ; B. C. 1911. s. 124 ; Al. 1906, s. 106 ; Can. 1906, s. 144 ; Tr.
1902. s. 135 : J. 1888, s. 137.

K.T.I.. — 7

98 CONCLUSIVENESS OF REGISTER. [Cii. iv.

chaser is protected, and the register made conclusive in his favour,
even where a misdescription of parcels has occurred; in general
these enactments appear to override, in favour of purchasers, all
other enactments by which the register is made inconclusive as
against certain unregistered interests.19

In some jurisdictions the register is made conclusive so long as
the entries are " uncancelled/' 20 but although referred to as im-
portant in one case,21 this enactment seems to be implied in all the
statutes.

The statutes for the most part purport to make the register con-
clusive only as to the title of the owner of the land, and the war-
ranty of title accorded to such interests as leases and mortgages
arises by implication.22 Only in Ontario, British Columbia, and
Leeward Islands 23 is reference made to the register being conclu-
sive with respect to a charge as well as the land itself, and in British
Columbia the register is merely " prima facie " evidence of the
registered title to the charge; in other jurisdictions — for instance,
England 2i — the warranty of title given to a mortgage has been
treated as inferior to that given to the ownership of the land itself.

The register cannot be conclusive, or indeed of any effect at all,
unless it is an actual person — and not a mere fictitious name — who
is entered upon it as owner of the land.23

The distinction between a fully warranted (or unqualified),
qualified, and possessory title is referred to ante, p. 51. To the
extent that the registered title is not warranted, the register is of
course not conclusive. In British Columbia and Leeward Islands,26
unless a title be fully warranted or " indefeasible " an owner regis-
tered in succession to another gets no better title than his predeces-
sor had, and the register is therefore in such cases not conclusive as
to any part of the successor's title. In the other two jurisdictions —
England and Ontario27 the title is (though registered as " pos-

"See Crisp V. Snowsitt [19171 N. Z. R. 252; also Billiet v. Com-
mercial Bank [19061 S. A. R. 193, 206, though the enactment there re-
ferred to was S. A. 1886, s. 71, which is not in other statutes.

20 B. C. 1911, s. 22; M. 1913, s. 79; S'as. 1917, s. 174; Al. 1906, s
44; Can. 1906. s. 174; Tr. 1902, s. 131. The Saskatchewan and Canada
sections may possibly, owing to a difference in drafting, have a restricted
interpretation.

21 William* V. Box (1910) 44 Can. S. C. R. 1, 12. 24.

22 Gibbs v. Messer [18911 A. C. 248. 254 ; Campbell v. Auckland Dist.
Land Registrar (1910) 29 N. Z. R. 332; In re Goldstone's Mortgage [1916J
N. Z. R. 19, 489 (where reference is made to Aust. Torr. Syst. 760) ;
post, Chap. VI. " Mortgages." &c.

23 On. 1914. s. 30 (4) ; B. C. 1911, s. 34; L. Is. 1886 (1914), s. 8.

24 See Att.-Gen. v. Odell [1906] 2 Ch. 47.
28 Gibbs v. Messer [1891] A. C. 248.

28 B. C. 1911, ss. 23, 106: L. Is. 1886 (1914), s. 127.
27Eng. 1875, ss. 8, 32; On. 1914, ss. 12, 44. And see Own. & Inc.
05, 168.

Sfxt. 1] MEANING OF CONCLUSIVENESS.

sessory " ) warranted as from date of initial registration, and the
register is to that extent conclusive in favour of the owner and his
successors in title. In British Honduras no registered title is at
first fully warranted against adverse claims,28 and the register is
therefore not conclusive until the lapse of the statutory periods.

One difficulty in the way of framing a satisfactory list of rights
and interests that are not affected hy the " conclusiveness " of the
register is that some rights and interests which do undoubtedly re-
main in existence after initial registration are by some of the stat-
utes preserved expressly. The argument that these rights and
interests are impliedly abrogated by others of the statutes that do
not mention them is however of little weight. It is, for instance,
hardly open to doubt — in view of the existing case law 29 — that reg-
istered land is usually liable in all jurisdictions (just as unregis-
tered land is) to such public burdens as rates and taxes, expropria-
tion for public purposes, and public rights of user. Xeverthel*
in many jurisdictions some or all of these three public burdens are
expressly provided for and excepted from the effect of registration.

An instance of the difficulty of construing the registration stat-
utes, when it is necessary to determine whether some statutory en-
actment or rule of law relating to private rights (as distinguished
from public burdens) has been abrogated or not, is to be found in
the preceding chapter (Chap. Ill) on the subject of adverse posses-
sion. It is there pointed out that in some of the statutes limita-
tion Acts are expressly referred to, in others not at all. In the
nine jurisdictions — the seven Australian, Jamaica, and (in a
modified form) Alberta30 — the statutes contain a section purport-
ing to abrogate or repeal all statutes and rules of law that are " in-
consistent " with the registration statute : this enactment — de-
scribed as a " rhetorical flourish " 31 — is not of any real service in
helping the judiciary to decide what statutes and rules of law are
so far " inconsistent " as to have no application to registered land,
and its absence from the majority of the statutes appears to be of no
importance.

**B. II. 1914, ss. 14-K). :;<>.

"Knight v. liockdale Munic. District (1899) 20 X. S. W. Eq. 32:
Gladstone Municipality v. O'Neill (1894) 0 Q. L. J. 206: Re McMillan
(1905) 5 8. R- (X. 8. \V.) .".."0: Yickcry v. St ruth field Municipality (1911)
11 S. R. (X. S. W.) 354.

»X. 8. W. 1900 s. 2 (4) : Q. 1861. s. 1; 8. A. 1886. s. 6: Tas. 1882,
s. 1 ; V. 19ir>. s. 3; \Y. A. 1893. s. 3: P. 1913. s. 4 (4) ; J. 1888, s. 1; Al.
1906. s. 154.

n Bucket t v. Knobbe (1874) 8 S. A. R. 86. 93. The enactment is
also referred to in Featherstone v. Hanlon (1886) Bad?. Dig. 4. and Barry
v. Ileider (1914) 19 C. L. R. 197. 204.

100 CONCLUSIVENESS OF REGISTER. [Ch. iv.

The exception of the public burdens above mentioned, and pri-
vate rights under limitation Acts, from the effect of registration,
are illustrations of a general principle that must be relied on as a
guide, whenever it is necessary to determine in any particular in-
stance how far the register really is " conclusive " as to the rights
of other persons than the registered owner. It is not difficult to
state the principle in general terms, but it is extremely difficult to
state its limits accurately. The general principle is that registra-
tion of title is not intended to change the substantive law of pro-
perty, or interfere with rights under that law, except so far as is
necessary for the carrying out of its professed objects — facility in
dealing with land and security of title to land.32 The difficulty
always is to determine what degrees of change and interference are
so far necessary for the practical working of the statutory scheme
as to be covered by the language of the enactments, when inter-
preted in the light of the above principle.

That the changes effected are (both in number and kind) much
more procedural than substantive is shewn, apart from actual
decisions, by the considerable number of cases in which points
in the law of vendor and purchaser come before the courts, where
the land is registered but nothing turns on the mere registration.
This may be further exemplified by observing that the propositions
laid down in such a text-book as Theobald's Law of Land (which
deals entirely with substantive law and not procedure) will be
found as a rule to apply to registered as well as unregistered land.
So, though aliens are not mentioned in the registration statutes,
registered as well as other land is subject to the general law and
any special regulations by which transactions with aliens are re-
stricted.33 This may be said with regard to moneylenders and the
legislation concerned with them,34 and the legislation governing-
rates of interest.35

In the present chapter the principle above stated will be found
to underlie all the cases on the subject, and in the absence of

32 This principle is referred to in numerous cases : See Limoges v.
Campbell (1895) 2 Terr. R. 356; Vickery v. Strathfield Municipality
(1911) 11 S. R. (N. S. W.) 354, 363 ; Beatty v. Bailey (1912) 26 O. L. R.
145; Smith v. Ernst (1912) 22 Man. R. 363; Barry v. Heider (1914) 19
C. L. R. 197. A comparison of Barry v. Heider with West v. Read (1913,
13 S. R. (N. S. Wl) 575) brings out clearly the general nature and limits
of the changes effected by registration of title. And see Aust. Torr. Syst.
80 et seq. ; Can. Torr. Syst. 137 et seq.

33 In re White (1915) 15 S. R. (N. S. W.) 217. And see Aust. Torr.
Syst. 734.

34 Bull v. Simpson (1915) 15 S. R. (N. S. W.) 365.
38 Canadian Mortgage Invest. Co. v. Cameron (1917) 55 Can. S. C. R.
409.

Sect. 1] MEANING OF CONCLUSIVENESS. |Q1

authority will be relied on as the best guide iu determining the
limits of the conclusiveness of the register under various circum-
stances, according to the nature of the claim that may be set up
against the title of the registered owner.

Occasionally a right conferred by another statute has been held
to be superior to that conferred by registration, and the register
accordingly to that extent is not conclusive. This has happened in
Australia with respect to land sold in default of payment of rates,
&c, and in Canada with respect to land exempt from seizure for
debt.38 On the other hand statutes enacted subsequently to the
registration statute are sometimes construed as conferring rights
that are only to be exercised subject to the provisions of the regis-
tration statute.37 Such cases are likely to be even less frequent in
the future : the tendency is for new statutes to be more explicit on
this point, by making definite reference to the registration statutes
and either including or excluding registered land.38

Among private rights of property, as to which the register is
conclusive in some jurisdictions and not conclusive in others, the
most important are easements. In British Honduras the statute
does not mention easements. In British Columbia and Federated
Malay States there are only slight references to easements.39 The
references in the Trinidad-Tobago, Jamaica, and Leeward Islands
statutes are also few.40 In the remaining jurisdictions there is great
variety in the enactments,41 the register being in some conclusive
only as to easements created after initial registration. In those
jurisdictions, as for instance British Columbia, where no special
provision is made on the subject, the presumption appears to be
that an easement is, so far as the servient tenement (when regis-
tered land) is concerned, on the footing of any other interest or

* See Aust. Torr. Syst. 83 : Can. Torr. Syst. 261 ; North-West Thresher
Co. v. Fredericks (1911) 44 Can. S. C. R. 318.

"Johansson v. Cronquist [1917] 3 W. W. R. 1029 (Al.).

w Illustrations are : Voluntary Conveyances statutes in several jur-
isdictions (see Aust. Torr. Syst. 835, and post. Sect. 4) ; (Victoria) Con-
veyancing Act 1915 (No. 2633). ss. 3. 14; (New Zealand) Property Law
Act 1908 (No. 152), s. 1; Aust. Torr. Syst. 252. 255, 598, 605; (Saskatche-
wan) Assignments Act (R. S. 1909, c. 142), s. 7.

" B. C. 1911. s. 20A ; F. M. S. 1911, s. 29.

*»Tr. 1902. ss. 47. 51: J. 1888. s. 68: L. Is. 1886 (1914), ss. 11. 25.

* See Own. & Inc. 136. 138 : Aust. Torr. Syst. 816 : Can. Torr. Syst.
49-57: Hutch. 80. Later cases are: Billiet v. Commercial Bank [1906] S.
A. R. 193: Barber v. rctonc (Mayor) (1908) 28 N. Z. R. 609 : Mackechnie
v. Bell (1909) 28 N. Z. R. 348: Crisp v. Snoirsill [1917] N. Z. R. 252;
Rex v. Registrar of Titles [1918] V. L. R. 228; Asavero v. Monroe (1916)
2 Tr. & Tob. 475. Enactments not included in the above references are :
I. 1891. ss. 45. 47 : V. 1915, ss. 68-70. 72. 73. 105-109. 128. 271 : P. 1913,
ss. 29. ."0-62. 71. 72: X. Z. 1915. ss. 58. 60. 64. 82. 197: Fi. 1876 (1906),
ss. 41. 42 : On. 1914. ss. 13. 24.

102 CONCLUSIVENESS OF REGISTER. [Ch. iv.

charge, and requires protection by restrictive entry if it is not to be
lost to its owner by the conclusiveness of the register.42

In a few instances the conclusiveness of the register extends to
the shutting out of equitable rights or interests which under the
general law could be protected through the medium of notice, by
endorsement on the title deeds or otherwise. And this inability
to obtain protection may even extend to strictly legal rights, which
are shut out both from registration and from notification on the
register.

An instance of the first kind is the right to enforce some per-
sonal covenant against the successive owners of land.43 An in-
stance of the second kind is a lis pendens, which in some jurisdic-
tions cannot be protected by any entry on the register,44 though in
others the rights conferred by it are turned into equitable rights
operating through, the medium of notice and capable of protection
by some restrictive entry on the register, but liable to be lost or
postponed to a purchaser without notice.45 Lis pendens is not
mentioned by the majority of the statutes, and in those jurisdictions
the Canadian cases just cited will perhaps apply. In South Aus-
tralia, Victoria, and Western Australia,46 express enactments forbid
a lis pendens (in South Australia) to be registered, and (in the
other two jurisdictions) to affect registered land. In Ireland,
Manitoba, and British Columbia,47 a lis pendens may be registered,
and in Ontario and Trinidad-Tobago 48 may be the subject of a
caution or a caveat. The English statutes are silent as to lis pen-
dens, but a caution is suggested as a proper protection.49

A vendor's lien for unpaid purchase money could be protected
by caveat or other similar entry, or by mere deposit of the certificate
of title by way of equitable mortgage ;50 if not so protected it would
be lost. Only in Ireland is provision made for registering such a

"The New Zealand case of Crisp v. Snowsill (supra) seems relevant.

43 See Aust. Torr. Syst. 800-803: Staples & Co. v. Corby (1900) 19
N. Z. R. 517; Can. Torr. Syst. 240-245. The law as to the right to
caveat laid down in Staples & Co. v. Corby cannot be" regarded as settled.

** See Syndicat Lyonnais v. McGrade (1905) 36 Can. S. C. R. 251, and
comments in Can. Torr. Syst. 158. 188. 383.

" Brooksbank v. Burn (1910) 15 West R. 661 (At), under Al. 1906.
s. 97, which gives unusual efficacy to a caveat.

48 S. A. 1886, s. 250 ; V. 1915, s. 274 ; W. A. 1893, s. 233.

« I. 1891. s. 45. and 1910 O. 4, r. 17 ; M. 1913, ss. 50, 78, 124 : B. C.
1911, ss. 71, 104, 137, 158-162: illustrations being Bevilockway v. Schneider
(1893) 3 B. C. R. 90, and Grunby Con sol. Mining Co. v. Esquimault Ry.
[1919] 3 W. W. R. 331 (Privy Council). As to latter case, see p. 183 post.

48 On. 1914, s. 82 ; Tr. 1902, s. 92.

49 Br. & Sh. 27, 199.

"Denny v. Nozick [1919] 3 W. W. R. 366 (Al.) ; Alexander v. Simpson
(1903) Jamaica, unreported.

Sect. 2] RIGHTS OF CROWN. 103

lien as a charge.51 In Queensland and Papua 52 the vendor's lien
is expressly abrogated, but this would not prevent a caveat being
entered or an equitable mortgage being created by deposit of the
certificate of title; the lien is not referred to in any other of the
statutes.

In the Canadian jurisdictions the registration of liens under
Mechanics' Lien Acts is provided for by general legislation. In
Ontario, British Columbia, and Manitoba,53 land may be subject to
such a lien without the lien being made an incumbrance upon it on
the face of the register. Express registration appears to be neces-
sary in Saskatchewan, Alberta, and Xorth-West Territories.54 But
unless there is a valid lien in existence, the mere entry on the reg-
ister will not make it an incumbrance on the land.55

SECTION 2 RIGHTS OF THE CROWDS'.

Whether the registered title of an owner of land is conclusive
against the Crown, in the absence of express enactment, cannot be
said to be settled : it was treated as an open question by the Privy
Council in 1904.1 But u the Crown has always been assumed, when
once land is under the Act, to be bound by the Act," 2 and the better
opinion seems to be that the register is conclusive against the
Crown as regards the ordinary rights of property enjoyed by sub-
jects. In thirteen jurisdictions at least (ante, pp. 28, 29) reference
is made by the statutes to the registration of the Crown as owner.

In only one jurisdiction — British Honduras 3 — is a general sav-
ing of all rights of the Crown enacted; the statute does not
"extend to any estate, interest, power, right, franchise, jurisdiction
or royalty of his Majesty his heirs or successors." Such a sweeping
enactment can hardly be implied in other statutes.

In twelve jurisdictions — British Columbia, Manitoba, Sas-
katchewan, Alberta, Xorth-West Territories, Tasmania, Victoria,
Western Australia, Papua, British Honduras, Trinidad-Tobago,

"I. 1891. s. 45.

MQ. 1861, s. 97; P. 1913. s. 128. See Power's R. P. Acts, 129.

"On. 1914, ss. 66 (4). 67; B. C. 1911. s. 22 (1) (g) ; M. 1913, s.
78 (e).

"Can. Torr. Syst. 141.

"Calgary (City) v. Dominion Radiator Co. (1917) 56 Can. S. C. R.
141.

1Att.-Gen. v. Dickson [1904] A. C. 273. 280.

*In re Bourke (1897) 7 Q. L. J. 133, 135. Other cases containing
dicta on this point are cited in Aust. Torr. Syst. 822. And see Public
Trustee v. Registrar-General (1899) 17 X. Z. R. 577; Rex v. Price (1904)
24 N. Z. R. 291; Common wealth v. State of \ew South Wales (1918) 25
C. L. R. 325, 340.

1 B. H. 1914, s. 45.

104 • • CONCLUSIVENESS OF REGISTER. [Ch. iv.

Jamaica4 — reservations contained in the original grant from the
Crown are excepted from the effect of registration. In jurisdic-
tions where there is no similar enactment the view generally taken
is that such reservations would not continue to have effect against
the owner unless entered in some way on the register; these are
therefore usually entered as incumbrances when initial registra-
tion takes place.

In nine jurisdictions — England, Ireland, Ontario, British Co-
lumbia, Manitoba, Saskatchewan, Alberta, North- West Territories,
South Australia 5 — the enactments making the register conclusive
expressly include the Crown as one of the persons whose rights are
shut out by the registration. In these jurisdictions the registered
title is thus in terms made conclusive against the Crown. But in
several of these same jurisdictions special rights of the Crown are
expressly saved, as in England and Ireland rights to escheat or for-
feiture,6 in Ontario statutory rights conferred on the Crown,7 in
British Columbia reservations in the original grant.8 In New Zea-
land statutory rights of the Crown to take roads are preserved.9
On the other hand, in British Columbia Crown debts do not affect
the land of the debtor unless these are registered.10

It will thus be seen that even where the registered title is ex-
pressly made conclusive against the Crown, this conclusiveness is
often cut down and made of less extent than against the rights of
subjects. Where express provision is thus made both for and
against the rights of the Crown, it may be difficult as a matter of
construction to determine how special rights of the Crown — such
as royal mines — not expressly mentioned are to be treated. Where
the Crown's rights are not expressly provided for, it seems clear
that royal mines remain vested in the Crown notwithstanding the
land is registered; in a Queensland case no attempt was made to
draw any distinction between registered and unregistered land with
respect to mines of gold.11 That such prerogative rights should re-
main unaffected by registration of the land is quite consistent with

4 B. C. 1911, s. 22 ; M. 1913, s. 78 ; Sas. 1917, s. 60 ; Al. 1906, s. 43 ;
Can. 1906. s. 73 ; Tas. 1862. s. 40, and 1893. s. 9 ; V. 1915, s. 72 ; W. A.
1893, s. 68; P. 1913, sch. 1 ; B. H. 1914, s. 30; Tr. 1902, s. 48; J. 1888,
s. 55.

5 Eng. 1875, ss. 7, 13. 30, 35 ; I. 1891. ss. 30, 36 ; On. 1914, ss. 10, 18.
42, 49; B. C. 1911. s. 22; M. 1913, s. 79; Sas. 1917. s. 174; Al. 1906.
s. 44; Can. 1906. s. 174; S. A. 1886. s. 70.

«Eng. 1875, s. 105; I. 1891, s. 96.

7 On. 1914, s. 24 (1) (g).

SB. C. 1911, s. 22. 9N. Z. 1915, sch. 2 f. B.

10 B. C. 1911, s. 60. As to New South Wales, &c, see Conv. & Prop. I*
170. 171.

11 Plant v. Rollston (1894) 6 Q. L. J. 98.

Sect. 3] PUBLIC BURDENS. 105

ordinary rights of property, when these are vested in the Crown,
being bound by the provisions of the statutes in the same way as
subjects' rights of property, and this seems the reasonable construc-
tion to place on the statutes in the absence of express provisions on
the point.

Registration appears to have no effect on the prerogative rights
of the Crown in Canada. Where provincial legislation as to
escheated land was held ultra vires, no question was raised by reason
of the land being on the register.12 " The Crown " in a provincial
statute means only the Crown in right of the province whose legis-
lature enacts the statute,13 and the same principle applies in all
jurisdictions.

SECTION* 3 — PUBLIC BURDENS.

Reference has already been made to the fact that the registered
title is not conclusive against the existence of such public burdens
in rates and taxes, rights of expropriation, and public rights of user
(ante, p. 99). The general principles applicable in the Australian
jurisdictions apply throughout.1 It will be sufficient here to par-
ticularize the enactments in which these matters, or some of them,
are expressly referred to by the registration statutes, and to men-
tion those jurisdictions which contain no such enactments. The lat-
ter number six : New South Wales, Queensland, Papua, Fiji, British
Honduras, Federated Malay States. The jurisdictions in which en-
actments are found number sixteen: England, Ireland, the six
Canadian jurisdictions, five of the Australasian, Trinidad-Tobago,
Jamaica, Leeward Islands.1

Apparently, in most cases where any of these public burdens are
expressly or impliedly not affected by the land being registered,
there is no distinction between their creation before or after initial
registration. However, in Jamaica,8 a distinction is impliedly
drawn with respect to "unpaid rates and assessments, quit-rents,
or taxes": only those "that have accrued due since the land was
brought under the operation of " the registration statutes being
expressly excepted from the effect of registration: this seems to

a Trusts and Guarantee Co. v. Rex (1916) 54 Can. S. C. R. 107.

"Gauthier v. Rer (1917) 56 Can. S. C. R. 176. See On. 1914. ss. 10.
18. 42, 49.

*See Aust. Torr. Syst. 80-86. 818-820; Fabian v. Greytoum North
{Borough) (1891) 10 N. Z. R. 505.

1 Eng. 1875. s. 18 : I. 1891. s. 47 ; On. 1914. s. 24 ; B. C. 1911, s. 22 ;
M. 1913, s. 78: Sas. 1917. s. 60; Al. 1906, s. 43: Can. 1906, s. 73; S. A.
1886, ss. 69. 71. 86: Tas. 1862, s. 40 ; V. 1915. s. 72; W. A. 1893. s. 68;
N. Z. 1915. s. 70: Tr. 1902. s. 48: J. 1888. s. 55: L. Is. 1886 (1914), ss.
11, 35. SJ. 18S8. ss. 17. 55.

106 CONCLUSIVENESS OF REGISTER. [Ch. iv.

mean that as against rates and taxes accrued due and unpaid at the
time of initial registration, the registered title is conclusive and
these cannot be charged on the land unless by actual entry on the
register.

SECTION 4 — VOLUNTARY TRANSACTIONS.

In some jurisdictions the registration statutes themselves draw
a clear distinction between purchasers for value and persons who
become registered as owners otherwise than in consequence of a
transaction for value, and proceed to except the volunteer from the
conclusive effect of the register (ante, p. 97). In the majority
of the jurisdictions this is not done, or is done in special cases only,
the question of the conclusiveness of the register where volunteers
are concerned being left to be dealt with for the most part by case
law. Even in the statutes that draw the distinction most clearly
between voluntary transactions and transactions for value, the
ground is not completely covered by the enactments, so that the law
must be settled largely by judicial decision in all jurisdictions.

There are three heads under which voluntary transactions may
fall in connexion with the conclusiveness of the register: (1) Where
registration is effected by way of assurance in favour of a person
who gives no value; (2) Where the voluntary transaction is an in-
itial registration, and the land is placed on the register by an
owner who (though originally a purchaser for value) holds by a
defective title; (3) Where a transaction would be invalid against
creditors or purchasers as not made for value, if it had been made
with respect to unregistered land.

1. In every jurisdiction the statutes contain some reference
(express or implied) to the distinction between voluntary transac-
tions and transactions for value. The plainest and most general
statement is made in England, Ireland, and Ontario,1 where it is
enacted that a transfer of registered land " made without valuable
consideration " is, so far as the transferee is concerned, subject to
all unregistered rights subject to which the transferor held the
land ; also, a " purchaser for valuable consideration " is not affected
by omission to send any requisite notices. In Fiji and Federated
Malay States 2 it is only a " purchaser " who is protected by regis-
tration, and the language of the enactment implies that volunteers

1Eng. 1875. ss. 33, 38, 92; I. 1891, ss. 36, 82; Qn. 1914, ss. 45, 52,
113. iSome Ontario cases are: Farah v. Glen Lake Mining Co. (1908) 17
O. L. R. 1; Re Lord and Ellis (1914) 30 O. L. R. 582; John Macdon-
ald & Co. v. Tew (1914) 32 O. L. R. 262. And see Aust. Torr. Sysrt.
835; Own. & Inc. 229; Can. Torr. Syst. 155-163.

2Fi. 1876 (1906), s. 14; F. M. S. 1911, s. 8.

Sect. 4] VOLUNTARY TRANSACTIONS. 1Q7

are not protected.3 In the Canadian jurisdictions 4 other than
Ontario, the Australasian jurisdictions,5 and the five Crown colo-
nies,6 the distinction between volunteers and purchasers is chiefly
referred to in the provisions relating to the conclusiveness of the
register when a mistake has been made or there are competing
assurances. In Queensland and Papua 7 the enactment protecting
transferees against unregistered interests of which the transferees
may have notice applies to " a transferee whether voluntary or not,"
and in Trinidad-Tobago " transfer " is defined as including " trans-
fer without valuable consideration." 8

In effect, the inferior position of a voluntary transferee for all
purposes — established by statutory enactment in England. Ireland,
Ontario, Fiji, and Federated Malay States — is established by judicial
decision in several of the Australasian jurisdictions ;• the rule thus
laid down appears to apply in all these, including Queensland and
Papua. The same view has been taken in some of the Canadian
cases,10 but these same Canadian courts have since doubted its cor-
rectness, and are inclined to hold that volunteers are entitled to the
same protection on the register as purchasers.11 This change of
opinion is based upon a passage in a judgment of the Privy Coun-
cil,12 which however does not appear to bear the wide meaning thus
placed on it.

* Chang Lin v. Chong Swee Sang (1908) Innes F. M. S. 95.

«B. C. 1911, ss. 25A. 104 (2), 121A. 124: M. 1913, s. 84; Sas. 1917,
ss. 159. 160. 208 ; Al. 1906, ss. 45, 104-106 ; Can. 1906, ss. 142-144, 193.

«X. S. W. 1900. ss. 124. 126 (4). 135; Q. 1861. ss. 109. 123. 126. and
1877. s. 51: 8. A. 1886, ss. 69. 71. 204. 207, 249; Tas. 1862. ss. 124-126;
V. 1915. ss. 72. 244, 246. 247 : YV. A. 1893. ss. 68, 199, 201. 202 ; P. 1913,
ss. 39. 87. 144. 147 : X. Z. 1915, ss. 59, 198 : Fi. 1876 (1906) , ss. 14, 91.

•B. H. 1914. ss. 15. 16. sch. D r. 12; Tr. 1902. ss. 47. 134, 135; J.
1888. ss. 135-137; L. Is. 1886 (1914), s. 19; F. M. S. 1911, ss. 8, 68.

TQ. 1861, 8. 109; P. 1913, s. 30. Tbis enactment is referred to in
Aust. Torr. Syst. 833. See also Power's Real Prop. Acts, 144. A prob-
able solution of the difficulty caused by the enactment is that it was in-
tended to effect the same result as the (English) Voluntary Conveyances
Act 1893; the express reference to the 13 Eliz. and the omission of any
reference to the 27 Eliz. seem to support this suggestion.

"Tr. 1902. s. 2.

•Chomley v. Firebrace (1879) 5 V. L. R. 57; Crow v. Campbell
(1884) 10 V. L. R. 186, 194 ; Gibbs v. Messer [1891] A. C. 248. 254 : Biggs
v. HcEllister (1880) 14 S. A. R. 86. See also Aust. Torr. Syst. 832, 839.

■ Turner v. Clark (1909) 10 West. R. 25 ; Fish v. Bryce ib. 616 (stated
in Can. Torr. Syst. 154-157). and perhaps Shetler v. Foshay (1915) 31
West. R. 181 — all in Saskatchewan.

u Coventry v. Annable (1911) 19 West. R. 400. 414 (Sas.— stated in
Can. Torr. Syst. 156) affd. (on ground of fraud only) : Annable v. Coventry
(1912) 46 Can. S. C. R. 573.

"Assets Co. v. Mere Roihi [1905] A. C. 176. The passage is at the
foot of p. 191, " This provision " down to the end of the paragraph over
page — " from the wrong-doer."

108 CONCLUSIVENESS OF REGISTER. [Ch. iv.

That the registered title is not so conclusive in favour of volun-
teers as of purchasers seems clear on other grounds. The case of
the volunteer is really covered by the doctrine of resulting trusts,
and it has been laid down in many jurisdictions that this doctrine,
" arising from the fact that no consideration was paid," applies to
registered land and its owners on the register.18 It is of course pos-
sible that the doctrine may not apply to its full extent in jurisdic-
tions where English equity law has only been introduced by statu-
tory enactment, and a suggestion to this effect has been made in the
Federated Malay States.14

In four of the Australasian jurisdictions — Queensland, South
Australia, Papua, Fiji 15 — the jurisdiction of the courts in respect
of all equitable interests is expressly preserved by the statutes them-
selves. In three of the Canadian jurisdictions — Saskatchewan, Al-
berta, North- West Territories 16 — contracts for dispositions of land
are similarly protected. Corresponding enactments in Ireland men-
tion " actual fraud or mistake," and in Federated Malay States
" actual fraud," only.17 These enactments do not seem to do more
than has been done by judicial decision in other jurisdictions to-
wards protecting unregistered interests.

The cases so far cited have been those in which the resulting
trust was enforced against a person who had got on the register by
transfer from an owner already registered. The same principle
applies, though the case is rarer, where the constructive trustee is
the original applicant for initial registration, or the first registered
owner.18 In the cases cited the registered owner had, before getting
on the register, acquired the land as agent for and with the money
of the rightful owner, who was accordingly held entitled to have
the land transferred to himself. This is in fact the very illustra-

13Chomley v. Firebrace (1879) 5 V. L. R. 59. 74; McKie v. McKie
(1898) 23 V. L. R. 489: Payne v. McDonald (1908) 6 C. L. R. 208;
Fonseca v. Jones (1910) 14 West. R. 148. 156 (Man.) ; Chang Lin V.
Chong Swee Sang (1908) Innes F. M. S. 95. And see Aust. Torr. Syst.
832, 839.

"See Chan Chin Lai v. Pole (1911) Innes F. M. S. 126, and ib. at p.
45. The Privy Council's judgment in Loke Yew v. Port Swettenham
Rubber Co. [1913] A. C. 491, especially at pp. 504-506, seems to be ad-
verse to this view, but English equitable doctrines were held to have been
carried too far in Haji Abdul Rahman v. Mohamed Hassan [1917] A. C.
209.

15 Q. 1877, s. 51; S. A. 1886. s. 249: P. 1913, s. 87; Fi. 1876 (1906). s.
117.

" Sas. 1917. s. 205 : Al. 1906. s. 139 ; Can. 1906, s. 4.

17 1. 1891, s. 34 (1) ; F. M. S. 1911. ft. 88.

18 Raleigh v. Glover (1866) 3 W. W. & a'B. 163; Raleigh v. McGrat*
(1877) 3 V. L. R. 250.

Sect. 4] VOLUNTARY TRANSACTIONS. 109

tion put in the Privy Council's judgment as to the court's power of
rectifying the register.19

2. A first registered owner whose initial application is founded
upon a defective title is for practical purposes treated as a volunteer
in contradistinction to a purchaser for value, and his registered
title is not conclusive for all purposes as that of a purchaser would
be. The principle however on which the register is in such cases
inconclusive, is that the owner has been registered by mistake. If
the mistake is not one which can be made a ground for rectifying
the register and restoring the land itself to the rightful owner, then
the registered owner may be liable for the value of the land. This
liability may be incurred either directly to the rightful owner, or
indirectly to the State authority after indemnity has been paid to
the rightful owner. This right of recovering compensation or
indemnity is in most jurisdictions limited to a period of six years
from the time of the rightful owner's loss of his land.

The circumstances under which initial registration is incon-
clusive by reason of a fundamentally defective title are referred to
7 in Sect, v, post — " Mistake." The distinction between the land it-
self or only its value being recovered, is dealt with in Sect. 12, post
" Liability to rightful owners," &c.

The principle, that an initial registration is sometimes inferior
in point of conclusiveness to a subsequent registration or a transac-
tion for value, has been obscured by the circumstance that in several
cases the rightful owner has been entitled to recover compensation
only and not the land itself, and has (by allowing the statutory time
limit to elapse) been barred of his remedy.20

Moreover, an initial registration on a bad title may, from one
point of view, occupy a stronger position than a subsequent regis-
tration for value effected on the strength of a void or ineffective
instrument.21

In all the jurisdictions in which English law is the basis of the
local jurisprudence — that is, in all twenty-two except Federated
Malay (States — it is believed that voluntary- assurances are, in favour
of creditors or purchasers, liable to be set aside, either under the
principles of bankruptcy law or of the statutes of 13 and 27 Eliza-
beth. So far as purchasers are concerned, the application of the 27
Eliz. is restricted in many jurisdictions by the provisions of Volun-
tary Conveyances Acts such as the English Act of 1893. But what-

"Loke Yew v. Port Sicettenham Rubber Co. [1913] A. C. 491, 504.

" See'Bonnin v. Andrews (1878) 12 S. A. R. 153: Hamilton v. Iredale
(1903) 3 S. R. (N. S. W.) 535: Assets Co. v. Mere Roihi [1905] A. C.
176.

" See Att.-Gen. v. Odell [1906] 2 Ch. 47. 73. 76. 77.

HO CONCLUSIVENESS OF REGISTER. [Ch. iv.

ever may be the extent in any particular jurisdiction to which vol-
untary assurances are, with respect to ordinary unregistered land,
invalid as against creditors and purchasers, these appear to be in-
valid to precisely the same extent with respect to registered land.22
The substantive law is the same, whether the land be registered or
unregistered, but the method of adjusting the rights and liabilities
of the parties to any such transaction has been altered by the sys-
tem of registration of title. If the volunteer has been registered as
owner it is necessary that the register should be rectified, either by
a formal transfer from the registered owner or by an alteration of
the register being made under the direct authority of the court.
As in the case of other voluntas transactions on the register, this
right to rectification can be referred to the principle of resulting
trusts {ante, p. 108). But it has been said that the creditors'
right under the 13 Eliz. is a "statutory right," and "neither an
unregistered title, nor an unregistered interest, nor an unregistered
disposition/'23 So if under bankruptcy law or the statutes 13 and
27 Eliz. a conveyance to trustees by way of settlement is voidable,
this inferiority in the title of the trustees and beneficiaries is not
cured by the trustees becoming registered owners under an initial
application; the trustee in bankruptcy, creditors, or purchaser can
still avoid the settlement, and have either the land transferred to
the claimant or the trustees declared trustees for him in place of
the beneficiaries.24

The voluntary transferee can however confer a good title on a
purchaser, who on being registered as owner will be as secure as
any other registered owner. This is expressly provided for in the
statutes of England, Ireland, and Ontario,25 and a similar provision
seems to be implied in other jurisdictions. The aid of the Volun-
tary Conveyances Act 1893 (in England and Ireland), and similar
statutes in other jurisdictions,26 seems unnecessary for the purpose

22 Some Australasian cases are given in Aust. Torr. Syst. 835, 839.
Other cases are: In re Wildash (1877) Q. L. R. pt. II. 47 (bankruptcy
law) ; In re Ilourigan [1904] S. R. Q. 117 (13 Eliz.) ; Thompson v.
Boyd (1888) 14 V. L. R. 594 (27 Eliz). Canadian cases under 13
Eliz. are: Merchants' Bank v. McKenzie (1900) 13 Man. R. 19: Syn-
dicat Lyonnais v. McOrade (1905) 36 Can. S. C. R. 251 • Bevilockivay
v. Schneider (1893) 3 B. C. R. 90; Peck v. San IAfe Ass. Co. (1905) 1
West. R. 302 (B. C).

23 Peck v. Sun IAfe Ass. Co., supra.

24 Administrator-General v. Clough (1916) Jamaica, unreported. Since
this decision a Voluntary Conveyances statute has been enacted in Jamaica.

25 En?. 1875, s. 33: I. 1891, s. 36* On. 1914, ss. 45, 52. Own. &
Inc. 229.

26 Some of these jurisdictions are : New South Wales — Conv. and
Law of Prop. Act 1898 (No. 17), s. 29; Victoria— Real Prop. Act 1915

Sect. 5] UNREGISTERED TRANSACTIONS. m

of giving a purchaser from the volunteer a good title, however
useful these statutes may be in rebutting the statutory presumption
of fraud which might otherwise arise.

SECTION 5 — UNREGISTERED TRANSACTIONS.

That a registered owner of land held under a system of registra-
tion of title is entitled to set at naught any contract into which he
may have entered with respect to his land, is a proposition which
does not require refutation. There appears also to be now no
danger in any of the twenty-two jurisdictions that, as at one time
seemed possible, a contract for the sale and purchase of land, or an
instrument in statutory form but unregistered, will be held to be
• inoperative to create any right with respect to the land itself." 1

Registration of title, as dealt with in this book, has definitely
reached the point at which a registered owner is not prevented from
creating by his own contract or conduct " estates or interests in the
land, which are valid and enforceable as against him, even though
unregistered "; and similarly he is not protected "against the obli-
gations which he may choose to incur under his own contracts." 2

The registered owner may of course not be bound by his own
unregistered assurance, if he can only be bound by creating some
legal (as distinguished from equitable) interest in land, and the
unregistered assurance passes no legal interest.3 Xor would the

(No. 2719). ss. 173-175; Tasmania — Voluntary Conveyances Act 1896 (No.
16) : New Zealand — Property Law Act 1908 (No. 152). s. 123: Trinidad-
Tobago — Voluntary Conveyances Ordinance 1915 (No. 38) : Jamaica — Vol-
untary Conveyances Law 1916 (No. 28). In all these statutes registered
land is referred to. In British Columbia a similar enactment is con-
tained in the registration statute itself (B. C. 1911. ss. 141, 142). but
this is probably due to the fact that unregistered, as well as registered,
land is dealt with in the registration statute.

1 See Barry v. Heider (1914). 19 C. L. R. 197. 205. referring to Lange
v. Rutcoldt (1872) 6 S. A. R. 75. 7 S. A. R. 1— the "decision in South
Australia soon afterwards overruled" by Cuthbertson V. Stcan (1877) 11
S. A. R. 102.

'Josephson v. Mown (1912) 12 S. R. (N. 8. W.) 249. 259. 266;
Reeves v. Konsehur (1909) 10 West. R. 680. 693 (Sas.h Tbe cases on
mortgages are to the same effect: ilathieson v. Mercantile Ftnanre Co.
(1891) 17 V. L. R. 271 : Sea-brook v. McMullan (1908) 10 W. A. K. 47.
This principle is expresslv adopted in some of the statutes: M. 1913. s. 91:
Sas. 1917. s. 58: Al. 1906, s. 46; Can. 1906, s. 70. These are referred
to post.

'See Naumbera v. Albertson (1888) 3 Q. L. J- 125; Tattley v. Cooper
(1905) 25 N. Z. R. 18: Seabrook v. McMullan, supra; Marttn v Coultaa
1911] S. A. R. 1: Macindoe v. Wehrle (1913) 13 S. R. (N. S. W.) 500:
Davisv. McConoehie (1915) 15 S. R. (N. S. WO 510. In England and
Ontario the position of a lessee is somewhat different, and questions of
the old technical "legal estate" might make the above cases inapplicable.

112 CONCLUSIVENESS OF REGISTER. [Ch. iv.

registered owner be bound by an assurance that was by statute pro-
hibited and made void.4 In such cases the register may be said to
continue to be conclusive in favour of the registered owner. But
apart from such cases, with respect to enforceable estates, interests,
and contractual obligations above referred to, the register may be
said not to be conclusive as between the owner and the persons with
whom he has been dealing.

To ask whether these estates, interests, and obligations are en-
forceable against the registered owner by persons actually contract-
ing or dealing with him and no others, or whether these persons
can in turn assign their rights as interests in the land to others, is
to raise a question as to the more exact nature of these rights.
Shortly, is an unregistered estate, interest, or obligation no estate
at all but a mere personal right of action ; or is it to be regarded as
an equitable estate or interest in the land, with the incidents of an
equitable estate or interest in ordinary English law? If these un-
registered interests created by the registered owner himself are
equitable interests and not mere personal rights of action, it is
obvious that they trench more deeply upon the conclusiveness of the
register.

Xo short and perfectly accurate answer can be given to the ques-
tion asked. The statutes and cases in the different jurisdictions are
not uniform. On the whole it may be said that these unregistered
interests are either equitable interests or to be treated on the footing
of equitable interests. Apart from the actual enactments and cases
that define the nature of an unregistered interest of this kind, there
are some general considerations that seem to justify the above pro-
position, and these may be very shortly summarized as follows:
References to unregistered interests occur in the statutes of every
one of the jurisdictions ; the system of caveats or restrictive entries
obtains in every jurisdiction ; the registration of judgments or exe-
cutions is, in the majority of jurisdictions, subject to unregistered
interests ; compensation for loss of land through wrongful registra-
tion is payable in respect of equitable interests;5 equitable mort-
gages by deposit of certificate of title are valid in the majority of
jurisdictions, either by statute or case law; specific performance of

4 No case under the registration statutes can be cited, the tendency of
the courts being to construe such enactments as creating contractual rights
only instead of interests in the land : see Loke Yew v. Port Swettenham
Rubber Co. [1913] A. C. 491 ; Haji Abdul Rahman v. Mohamed Hassan
[1917] A. C. 209. 214. An illustration under another statute is Bickle v.
Roach (1915) 15 S. R. (N. S. W.) 295, affd. (on other grounds) as Roach
v. Bickle, 20 C. L. R. 663.

" Williams v. Paptvorth [1900] A. C. 563, 568; Barry v. Heider (1914)
19 C. L. R. 197, 214 ; Tolley d Co. v. Byrne (1902) 28 V. L. R. 95.

Sect. 5] UNREGISTERED TRANSACTIONS. 113

contracts for sale and purchase is referred to in most of the stat-
utes; priority according to date of registration, not creation of in-
terest, is conferred by most of the statutes.

Land may of course come on to the register already bound by
some trust or unregistered interest. Such an interest is enforceable,
and may also be defeated, in the same way as if created subsequently
to the initial registration. It is only expressly provided in Eng-
land, Ireland, and Ontario,6 that the initial registration of an
owner who is entitled otherwise than beneficially is subject to the
unregistered interests of the beneficiaries, but such a provision is
implicit in all the statutes.

The priority of the registered title over unregistered rights or
interests created by the registered owner is secured in the statutes
by enactments expressly making unregistered interests inferior when
in competition with registered interests, and by enactments making
unregistered instruments ineffective to pass any interest in the
land.7 Only in British Honduras is there no express enactment as
to the effect or consequence of an instrument being unregistered ;
but " equitable estates and interests " are expressly recognized
and provided for among unregistered interests that can be protected
by caveat against the " legal estate, interest, power, or right " on the
register.8

Putting aside British Honduras, there are then twenty-one juris-
dictions in which the statutes enact, in one form or another, that
unregistered instruments are to be ineffective to pass any estate or
interest in the land ; in some only of these is the positive effect of
an unregistered instrument declared by the statutes, and in the
majority this has had to be determined by judicial decision.

In England and Ontario 9 transfers and charges are directed to
be " completed " by registration of the person taking the interest,
and until a transfer is so completed the transferor is "deemed to
remain owner of the land." Charges only cease on registration of
discharge. Express authority is given for creation of unregistered

•Eng. 1875. s. 7; I. 1891. s. 30; On. 1914, ss. 10, 18.

'A third method is to make the unregistered' instrument inadmissible
in evidence. This is done in British Columbia as to instruments taking
effect before 1st July, 1905 : B. C. 1911, s. 105. This inadmissibility is a
penalty imposed on non-registration, but does not otherwise affect the
validity of the instrument: Howard v. Miller [1915] A. C. 318. 325.
There are similar provisions in the Uganda and Sudan statutes (ante,
p. 17). But this plan belongs rather to systems of deed registration: see
Samy Nathan v. Ramasamy (1904) 8 Str. Sett. R. 117.

•B. H. 1914, ss. 30, 40. scb. D.

* Eng. 1875. ss. 22. 28. 29. 34, 40, 49 ; 1897, s. 9 (6) : 1903-8 Rules,
r. 96. On. 1914. ss. 30, 37, 38, 48, 54, 68. 69.

B.T.L. — 8

114 CONCLUSIVENESS OF REGISTER. [Ch. iv.

estates and interests " subject to the maintenance of the estate
and right " of the registered owner. In the English Act of 1897
and the Rules the interest of a person entitled to be, but not yet
registered, is referred to as " the right to be registered as pro-
prietor « . . conferred by an instrument of transfer or charge/' and
" the right to apply for registration as first proprietor." The On-
tario statute (s. 69) directly enacts that a registrable instrument,
is to " confer a right to be registered on the owner." In both jur-
isdictions the enactments treat an unregistered transfer or charge
on the footing of instruments entitling the holders to deal with
their interests as rights of property, but liable to be defeated by
registered dispositions on the part of the registered owner. Apart
altogether from the express permission to create estates and inter-
ests off the register,10 the other enactments referred to are sufficient
to make it clear that the right to registration conferred by an un-
registered instrument is an equitable right, not to be distinguished
for practical purposes from the ordinary equitable estate, assign-
able, and enforceable as a right of property against the registered
owner.11

In Ireland,12 " until the transferee is registered as owner of the
J and transferred" the instrument of transfer does "not confer on
the transferee any estate in the lands," and so as to the creation and
transfer of charges. Charges only cease to operate upon registra-
tion of discharge. "Any right in or over any registered land or
registered charge " may also be created, but these are not to affect
registered transactions for value. The court's jurisdiction as to
" actual fraud and mistake " is expressly preserved. These provi-
sions are to much the same effect as the English enactments, though
the language is clearer and more direct. The enactment as to the
effect of an unregistered instrument in not conferring " any estate
in the lands " has, however, been interpreted strictly by the Irish
courts, and held to mean that "no estate, legal or equitable, passed
from the transferor to the transferee until registration." 13 The

10 Eng. 1875, s. 49 ; On. 1914, s. 68. See, as to unregistered interests
under statutory and non-statutory instruments, Own. & Inc. 150, 230. The
whole subject of the nature of unregistered interests in these jurisdictions
is made difficult by the judicial observations in Capital and Counties Bank
v. Rhodes [1903] 1 Ch. 631, 655 (as to which see Own. & Inc. 91, 121, 145,
and elsewhere), and Att.-Gen. v. Odell [1906] 2 Ch. 47, 75.

11 Barry v. Heider (1914) 19 C. L. It. 197, though under an Aus-
tralian statute, illustrates the distinction between an equitable interest
binding on the registered owner, and a merely personal right of action
against him.

12 1. 1891. ss. 25, 34 (1), 35, 41, 42, 44, 95 (def. "right").

13 Pirn v. Coyle [1907] 1 I. R. 330. Other cases to the same effect are :
Torish v. Orr [1894] 2 I. R. 381 ; McGettigan v. Roulstone [1910] 2 I. R.
17; Mooney V. McMahon [1911] 1 I. R. 125.

Sect. 5] UNREGISTERED TRANSACTIONS. H5

cases are not consistent as to the value of a " right to be registered,"
this right being sometimes treated as practically equivalent to a
complete equitable interest, and sometimes as a mere equity of
no value at all as a right of property.1* As the Irish case law now
stands, it is impossible to say that the unregistered instrument does
confer an interest of the same efficacy as the interest conferred in
England and Ontario.

In Leeward Islands 15 unregistered transactions are expressly
put on the footing of " contracts/' and the unregistered instrument
is spoken of as a mere " warrant to authorize " registration. Thus
the effect of the statute is to make a transaction " rest in contract
until registration." 16 The right to registration would seem to be
a right of property on the footing of an equitable interest.

British Columbia 17 is anomalous in several respects. A regular
deed registry is provided for in addition to the registration of title.
It is also the only jurisdiction in which the statutes enact that un-
registered instruments are not to " pass any estate or interest either
at law or in equity " in land ; the instrument is to " confer on the
person benefited " and those claiming through him " by descent,
purchase, or otherwise, the right to apply to have the same regis-
tered." The effect of a transfer is that the transferee is " entitled
to be registered as the owner " of the former owner's estate or in-
terest.

Notwithstanding the stringent enactment above quoted, the
right to registration has been held to be so far a right of property
as to prevent a registered judgment being conclusive against an
unregistered conveyance or mortgage.18 So with respect to a reg-
istered creditor's assignment — this was held not to be conclusive
against an unregistered mortgage, which on registration would
relate back to its date of creation.19 And a purchaser who has not
yet registered his conveyance has been held to be so far " the equit-
able owner of the land " as to be entitled to the compensation pay-

" With Pirn v. Coyle (supra) compare In re Furlong and Bogan's
Cont. (1893) 31 L. R. I. 191, where the right to first registration (not
under a transfer) is called " an inchoate right incapable of being defeated,
and only waiting for an official act to be performed to become an abso-
lute estate."

ML. Is. 1886 (1914), ss. 6, 37, 51, 57, 168.

M Loke Yev* v. Port Swettenham Rubber Co. [1913] A. C. 491, 500 :
In re Smith [1916] 2 Ch. 206.

11 B. C. 1911, ss. 102, 104. 105, 143-147.

uEntici*le v. Lena (1908) 9 West. R. 17. 317 (B. C.) ; Yorkshire
(iuarantee Corp. v. Edmonds (1900) 7 B. C. R. 348. But these cases are
now disapproved of and overruled respectively by Bank of Hamilton v.
Hartery (1919) 58 Can. S. C. R. 338.

"Westfall v. Stewart (1907) 13 B. C. R. 111.

116 CONCLUSIVENESS OF REGISTER. [Ch. iv.

able for injury to the land by a public authority.20 Nor can a
purchaser, in the absence of stipulation, insist on being registered
before paying his vendor the purchase money.21 In other cir-
cumstances th.e enactment has been construed strictly, and no inter-
est (even equitable) held to pass until registration of the instru-
ment purporting to convey it, the register being thus conclusive
against such interest.22

The remaining sixteen jurisdictions can be treated rs one group
— Manitoba, Saskatchewan, Alberta, North-West Territories, the
nine Australasian, with Jamaica, Trinidad-Tobago, and Federated
Malay States.23 There are some differences among these statutes,
but the general position as to this group is that, under the statutory
enactments and decisions on them, an unregistered instrument (in
cases not specially excepted) passes no actual interest in the land
that can be called an equitable estate in the ordinary sense, but an
equitable interest of a contractual nature under the instrument,
consisting of a right to be registered as the owner of the interest
purporting to be conferred by the instrument.24

In the Federated Malay States there is a stringent enactment
making transactions by non-statutory methods " null and void and
of no effect/' 25 This is to be construed as merely depriving the un-
registered instrument of any operation as a transfer or incumbrance,
and does not interfere with its operation as a contract.26 The right
to be registered conferred by such an instrument is to be treated
as an assignable right of property, thus placing such a right higher
than a mere contract.27

20 Re North Vancouver (City) and Jackson (1914) 27 West. R. 456
(B. C).

"Thompson v. McDonald (1914) 20 B. C. R. 223.

22 Levy V. Oleason (1907) 13 B. C. R. 357; Perry V. Morley (1911) 16
West. R. 691 (B. C.) ; Goddard v. Slingerland (1911) 18 West. R. 324
(B. C.) ; Howard v. Miller [1915] A. C. 318, 326.

23 M. 1913. ss. 91, 98 ; Sas. 1917, ss. 58. 205 ; Al. 1906, ss. 41, 46, 139 ;
Can. 1906, ss. 4, 70, 71, 76; N. S. W. 1900, s. 41; Q. 1861, s. 43, and
1877, ss. 48, 51 ; S. A. 1886, ss. 67, 71. 246, 249 ; Tas. 1862, s. 39 : V. 1915.
s. 61 ; W. A. 1893, s. 58 ; P. 1913, ss. 28, 87, 126 ; N. Z. 1915, s. 38 ; Fi.
1876 (1906), ss. 39, 117; Tr. 1902, ss. 46. 60; J. 1888, s. 48; F. M. S.
1911. ss. 5, 25, 88.

24 See Shore v. Green (1890) 6 Man. R. 322; Jellett v. Wilkie (1896)
2 Terr. R. 133, 26 Can. S. C. R. 282; Barry v. Heider (1914) 19 C. L. R.
197; Howard v. Miller [1915] A. C. 318, 326.

25 F. M. S. 1911, s. 5.

26 Haji Abdul Rahman v. Mohamed Hassan [1917] A. C. 209, 214;
Loke Yew v. Port Swettenham Rubber Co. [1913] A. C. 491, 500.

27 See Loke Yew v. Port Swettenham Rubber Co., supra. In British
Columbia this assignability is by statute expressly conferred on the per-
son entitled under the contract : B. C. 1911, s. 104 ; Howard v. Miller,
supra. In the Malay case just cited the assignee of the unregistered
interest was treated in all respects as though he bad been the person origin-
ally entitled under the contractual instrument.

Sect. 5] UNREGISTERED TRANSACTIONS. n?

In Saskatchewan no interest is passed by the " unregistered
instrument " except as against the " person making the same " ; in
Manitoba, Alberta, and Xorth-West Territories, the interest does
not pass " as against any bona fide transferee," and in South Aus-
tralia rights under a contract for sale are expressly preserved, ex-
cept against a registered owner " taking bona fide for valuable con-
sideration." 28 There are also in Manitoba, Alberta, and Saskatche-
man,29 enactments making void, so far as they affect the land, cer-
tain instruments which purport to secure on the land the purchase
money of chattels ; such instruments operate as agreements to give a
mortgage.30

In the statutes of Fiji and Federated Malay States reference is
made to the theory that the unregistered instrument is not so much
an assurance in itself as an authority to the registry to alter the
register in favour of the transferee, &c., and this view also appears
in the case law of other jurisdictions.31

In Manitoba, Queensland, South Australia, and Papua, the
statutes enact that the unregistered instrument shall confer a " right
or claim " to registration.32 But it has been held that the law is
the same in other Australian jurisdictions where there is no such
enactment,33 and this seems to be true of the Canadian and other
jurisdictions.

The statutes in all sixteen jurisdictions enact that the unregis-
tered instrument is to be ineffective to pass " any estate or interest "
in land — in Fiji and South Australia " any land," and in Federated
Malay States " any land or any interest therein." In Queens-
land, South Australia, Papua, and Fiji,34 the statutes expressly pre-
serve the jurisdiction of the courts with respect to fraud, unregis-
tered dispositions, and equitable interests (in Saskatchewan, Al-
berta, and North-West Territories 35 " actual fraud " and " con-
tracts for the sale or other disposition of land," and in Federated
Malay States 36 " actual fraud.") But the rule as to protecting

*M. 1913. s. 91 ; Sas. 1917. s. 58 (relied on in Union Supply Co.'s Case
T1918] 2 W. W. R. 305) ; Al. 1906. s. 46; Can. 1906, s. 70; S. A. 1886,
s. 71.

n Manitoba— Lien Notes Act (R. S. 1913, c. 115). s. 4. Alberta —
Charges on Land Act, 1910 (2nd Sess.), c. 5. Saskatchewan — Sas. 1917,
ss. 99, 129, 130.

-Imperial Elevator Co. v. Olive (1914) 29 West. R. 339 (Sas.).
See post, chap. VI. sect. 4, sub-sect. 2 — " Other Equitable Mortgages."

wFi. 1876 (1906), s. 7; F. M. S. 1911, s. 4. Arnot v. Petersen (1912)
21 West. R. 153 (Al.). See ante. p. 115. as to Leeward Islands.

" M. 1913. s. 98 ; Q. 1877, s. 48 ; S. A. 1886, s. 246 ; P. 1913, s. 126.

" Barry v. Heider (1914) 19 C. L. R. 197.

34 Q. 1877, s. 51; S. A. 1886, s. 249; P. 1913, s. 87; Fi. 1876 (1906),
s. 117. * Sas. 1917. s. 205 ; Al. 1906. s. 139 ; Can. 1906, s. 4.

» F. M. S. 1911, s. 88.

118 CONCLUSIVENESS OF REGISTER. [Ch. IV.

unregistered interests' lias constantly been acted on by the courts in
the absence of any such express enactments.""

The law in the sixteen jurisdictions is thus seen to be fairly uni-
form with respect to the relation of unregistered transactions to the
registered ownership. On the whole, judged by at least one import-
ant test — assignability 38 — the right or interest taken under an
unregistered instrument is in the nature of an equitable interest;
and there seems to be no substantial distinction between an instru-
ment in statutory form and an instrument in any other form.39
There are a few cases which run counter to the main current of
authority, and in which rights under unregistered instruments have
been decided otherwise than in accordance with the principles above
laid down.40

That the right or claim to registration conferred by an unregis-
tered instrument does amount to an actual interest in the land is
supported by another consideration. Whether voluntary or for
value, the interest which the donor or transferor purports to part
with is treated as a right of property and not a mere right of action.
Pending registration, the transaction (if voluntary) may be treated
as an imperfect gift and revocable.41 If for value, however, the
transaction cannot thus be treated as revocable, even though the
transferor die,42 or his title be declared void.43

The nature of the unregistered interest also appears incidentally
in cases dealing with caveats, judgments and executions, equitable
mortgages and equitable interests generally. These topics are
treated separately elsewhere in this book.

37 See Barry v. Heider (1914) 19 C. L. R. 197; Aust. Torr. Syst. 779;
Can. Torr. Syst. 135, 136. In Manitoba there is no longer any such en-
actment, though it was contained in the statute, at the time of the decision in
Williams v. Box (1909) 13 West. R. 451, 44 Can. S. C. R. 1.

38 See Barry v. Heider, supra; Loke Yew v. Port Swettcnham Rubber
Co. [1913] A. C. 491.

39 See McEUister v. Biggs (1883) 8 A. C. 314; Jellett v. Wilkie (1896)
2 Terr. R. 133, 26 Can. S. C. R. 282 ; cases in preceding note. Some pos-
sible distinctions are pointed out in Aust. Torr. Syst. 777, 784-791.

40 Gilbert v. Vllerich (1911) 16 West. R. 490, 17 West. R. 157 (Sas.).
equitable mortgage, stated and criticized in Can. Torr. Syst. 129, and
explained in Imperial Elevator Co. v. Olive (1914) 29 West. R. 339.
Seecharan v. Jugdeo Mara] (1909) 1 Tr. & Tob. 344, judgment and
unregistered transfer. Johnson v. Billyard (1890) 11 N. S. W. 319, Fiji
lease in New South Wales ; with this contrast Shore v. Green (1890) 6
Man. R. 322.

"Anning v. Anning (1907) 4 C. L. R. 1049, 1061; Smith v. Smith
(1915) 31 West. R. 607 (Al.). See also Hay v. Commr. of Stamps
(1911) 11 S. R. (N. S. W.), 304; Aust. Torr. Syst. 790, 791.

42 See preceding note. In South Australia and Manitoba the validity
of registration after death is expressly declared by statute : S. A. 1886. s.
59; M. 1913, s. 171.

"Barry v. Heider (1914) 19 C. L. R. 197; Sheerin v. Sheerin (1903)
5 N. Z. Gaz. 421.

sect, ttj NOTICE. 119

SECTION 6 — NOTICE.
SUB-SECTION 1 HOW FAR THE REGISTER IS NOTICE.

To some extent the conclusiveness of the register is constituted
by its being notice of the interests referred to in entries upon it,
though the register is not always or necessarily notice to all the
world.

Certain entries on the register are by the statutes expressly
made notice for certain purposes in England, Ontario, and British
Columbia, but apparently in no other jurisdictions. In England,
and Ontario,1 when " notice " of a lease has been registered, the
registered owner and persons " deriving title through him," except
owners of " incumbrances registered prior to the registration of
such notice," are " deemed to be affected with notice " of the
lease. Xothing is said about other persons dealing with the land.

In British Columbia - " the registration of a charge " gives
" notice to every person dealing with the land " of the interest under
the charge and the " contents " of the instrument. This appears to be
the law in other jurisdictions, though not enacted by statute. It has
been held in New Zealand that the prescribed method of registering
a mortgage being by means of an entry on the register, by which
the existence of the mortgage is disclosed, " it is the duty of all
persons dealing with the property to examine the mortgage and see
what it contains," and anything in the instrument " will be notice
to all persons who are dealing with the property." 3 The same prin-
ciple underlies those cases in which it is laid down that a proposing
purchaser omits to search the register at his peril, and must be
taken to have notice of what he would have found on search.4

There are, however, many cases in which omission to search the
register has been held not to be such negligence as to be punished
by loss of priority, &c. To this extent the entries on the register
must be taken not to be notice. Thus, a purchaser is not bound to
search with respect to the title of the transferor himself.5 A mort-
gagor is not bound to search in order to discover whether his mort-
gagee is still the owner of the mortgage.6 And if search is not on

1 Eng. 1875, s. 50 ; On. 1914. s. 70.

*B. C. 1911, s. 72.

•In re Goldstones Mortgage [1916] N. Z. R. 19 (affd. ib. 489) ; refer-
ence was made to Aust. Torr. Syst. 760, 945.

♦See In re Scanlan (1887) 3 Q. L. J. 43; Aust. Torr. Syst. 849.

•Russell v. Registrar-General (1906^ 26 X. Z. R. 1223; Christie v.
Taylor (1914) 26 West. R. 673 (Al.).

•Nioa v. Bell (1902) 27 V. L. R. 82; Aust. Torr. Syst. 919; Own. &
Inc. 170, 203, 204.

120 CONCLUSIVENESS OF REGISTER. [Ch. iv.

other grounds required, even the entry of a caveat will not be such
notice as to give priority to the interest covered by the caveat.7. A
lis pendens on the register has been held not to be notice in itself.8

SUB-SECTION" 2 EFFECT OF NOTICE OF UNREGISTERED INTERESTS.

The result of the existence of unregistered interests being
brought to the notice of the registered owner may be to cut down
the conclusiveness of the register so far as he is concerned.

In a few instances the statutes provide that the register is not
to be conclusive if the owner either is affected with notice of some
unregistered interest, or — what amounts to the same thing — is not
a purchaser, &c, " bona fide " or u in good faith." For the most
part however the statutes, in referring to notice, enact that it shall
be ineffective for the purpose of making the registered title less con-
clusive— apart of course from any question of fraud. Particular
transactions are sometimes protected in this way, but the most im-
portant enactments are those that deal with notice in general. In
England, Leeward Islands, Fiji, and Federated Malay States, there
is no such general enactment as to notice.

In England the statutes seem to contain only two distinct refer-
ences to notice of the kind here considered — in connexion with trans-
fer of charges, and indemnity for rectification of the register.1 In
one case the register might be inconclusive so far as the transferee
was concerned and in the other the right to indemnity might be
barred.

In the Leeward Islands statutes the only mention of notice
seems to be in the enactments by which the cancellation of a wrong-
ful registration or liability to damages are not to prejudice the
rights of a " transferee or incumbrancee . . . bona fide without no-
tice," 2 thus implying the possible inconclusiveness of the register
in the face of notice.

In the Fiji and Federated Malay States statutes the only men-
tion of the effect of notice seems to be in the enactments which pro-
vide that " no sale or transfer under " an execution, &c, is to " be
valid against a purchaser for valuable consideration " until the exe-
cution, &c, is registered, notwithstanding the purchaser " had
actual [in Fiji " actual or constructive "] notice of " the execution,

7 Queensland Trustees v. Registrar of Titles (1803) 5 Q. L. J. 46, 51;
Grace v. Kuebler [1917] 1 W. W. R. 1213 (Al.), referring to citations in
preceding note, affd. 56 Can. S. C. R. 1, approving of Nioa v. Bell.

sPeck v. Sun Life Ass. Co. (1905) 1 West. R. 302 (B.C.).

1Eng. 1875, s. 40 (am.) ; 1897, s. 7 (4).

SL. Is. 1886 (1914), s. 19.

SECT, bj NOTICE. 221

&c.3 Here the notice is ineffective against the conclusiveness of the
register.

In all these four jurisdictions the intention of the statutes seems
to be that in general mere notice of unregistered interests is not to
constitute an exception to the conclusiveness of the register — always
excluding the case of fraud.4 The real difficulty is to discover at
what point notice becomes fraud. Xearly all the cases on the sub-
ject have arisen under statutes which contain a general enactment
as to notice, expressly distinguishing it from fraud. In the only
case that is strictly relevant under a statute in which notice and
fraud are not distinguished, there is a tendency to give a wide mean-
ing to fraud and make it include any dishonest conduct.3 In many
modern cases there is, however, a tendency to construe registration
statutes strictly, and with less reliance than formerly on the maxim
" Notice is fraud."6 Perhaps one may say (in view of the two cases
cited) that any conduct amounting to dishonesty in obtaining an in-
terest and then registering it for the purpose of shutting out a com-
peting and unregistered interest is fraud, but that it is not fraud to
insist on priority' by registration where the interest thus registered
was not obtained with any such purpose. This differs little from
such a formula as : u Mere knowledge of the existence of an unregis-
tered interest is not fraud." "

Whatever may be the extent to which the registered title is in
these four jurisdictions protected against the effect of the owner
becoming registered with notice of unregistered adverse claims or
interests, it is quite clear that the doctrine of notice is unaffected
so far as unregistered interests are concerned, and that the owner
of an unregistered interest in registered land is as amenable to the
full effects of the doctrine of notice as he would be with respect to
ordinary land and the general law.8

In the other eighteen jurisdictions the statutes also contain
enactments as to the effect of notice under particular circumstances,
and in addition enactments on the effect of notice generally.

In Ireland 9 notice of a settlement referred to on the register

*Fi. 1876 (1906). s. 91 : F. M. S. 1914. s. 68.

4See Own. & Inc. 150. 257-259: Br. & Sh. 13. 14. As to notice and
fraud, L. Q. R. xxix. 434, xxxi. 397.

* Loke Yew v. Port Sicettenham Rubber Co. [1913] A. C. 491, dis-
cussed in L. Q. R. (preceding note).

•For instance. In re Monolithic Build. Co. [1915] 1 Ch. 643, 667. folld.
in New Zealand in Zachariah v. Morrow (1915) 34 N. Z. R. 885. And see
the judgments in the Courts below in the Loke Yew case : Innes F. M. S.
215, 243. T See Own. & Inc. 259.

•An illustration is Yio Then Seng V. Cheng Sing (1912) Innes F. M. S.
182. •!. 1891. ss. 71, 82 (3).

122 CONCLUSIVENESS OF REGISTER. [Ch. iv.

is not necessarily notice of the trusts of the settlement. Apparently
it is only in Ireland that notice (or "knowledge ") of the omission
to send or receive some statutory notice affects the conclusiveness of
the registered title.

In New South Wales, Tasmania, Victoria, Western Australia,
Alberta, North- West Territories, and Jamaica,10 notice to a pur-
chaser of a vendor's inability, through fraud or otherwise, rightfully
to complete a sale, will make the vendor's registered title inconclu-
sive so far as concerns his right to specific performance against the
purchaser.

In Alberta X1 a contract for sale is expressly made assignable,
but the conclusiveness of the vendor's registered title is not affected
until notice in writing of the assignment has been given him.

In Queensland and Papua 12 a purchaser or mortgagee from
trustees is not affected by notice of the trusts, nor (in Queensland
as to friendly societies, &c.) by notice of such matters as the in-
validity of the appointment of officers of a society.

In the seven Australian jurisdictions, New Zealand, Trinidad-
Tobago, and Jamaica/3 until registration of a writ of execution the
register remains conclusive in favour of a purchaser or mortgagee
from the registered owner, notwithstanding that the purchaser, &c,
had notice of the existence of the writ.

In all these jurisdictions, except Ireland, Ontario, and British
Honduras, persons becoming registered as purchasers or mortgagees
" bona fide for value " are accorded special protection in case of
their vendor or mortgagor having been registered through fraud or
mistake.14 The reference to bona fide transactions is rather em-
phasized by the fact that in a few instances purchasers " for value "
simply are protected.15 " Bona fide " here seems to mean without
" notice, knowledge, or the means of knowledge " of the defect in

10 N. S. W. 1900, s. 44 ; Tas. 1862, s. 115 ; V. 1915, s. 71 ; W. A. 1893,
s. 67; AI. 1906, s. 136; Can. 1906, s. 175; J. 1888, s. 54. See Colonial
Bank v. Pie (1880) 6 V. L. R. 186, 193, where the enactment is called an
" odd provision."

11 Al. 1906, s. 101.

12 Q. 1861, s. 79; 1877, s. 22. P. 1913, s. 86 (3). The first of these
Queensland sections is partially abrogated by the Trustees of Public Lands
Act 1869 (No. 2) ; see Down v. Att.-Gen. (1905) 2 C. L. R. 639, 647.

13 N. S. W. 1900, s. 105 (3) ; Q. 1861, s. 91; S. A. 1886, s. 106; Tas.
1862, s. 94 ; V. 1915. s. 178 ; W. A. 1893, s. 133 ; P. 1913, s. 112 (1) ; N. Z.
Sup. Ct. Rules, r. 317 (Judicature Act 1908 (No. 89), sch. 2, Hutch. 123) ;
Tr. 1902, s. 93 ; J. 1888, s. 102.

"See under "Voluntary Transactions," sect. 4, ante, p. 107.
15 For instance : Q. 1877, s. 51 ; P. 1913, s. 87 ; V. 1915, s. 72 ; W. A.
1893, s. 68; Tr. 1902, s. 47.

Sect. 6] NOTICE. ^03

the predecessor's title, as has been held in the case of misdescription
of boundaries.16

In many of these jurisdictions there is an enactment by which
claims for the recovery of land or compensation, or both, are barred
in cases where the claimant had notice of the intended registration
and took no steps to enforce his claim.17

In all eighteen jurisdictions the statutes contain enactments
relating to notice in general, and differentiating it from fraud. In
twelve the enactments are substantially uniform, viz., New South
Wales, South Australia, Tasmania, Victoria, Western Australia.
New Zealand, Manitoba, Saskatchewan, Alberta, North- West Terri-
tories, Trinidad-Tobago, Jamaica." The New South Wales enact-
ment may be taken as representative of all :

Except in the case of fraud, no person contracting or dealing
with, or taking or proposing to take a transfer from, the registered
proprietor of any registered estate or interest, shall be required or in
any manner concerned to enquire or ascertain the circumstances in or
the consideration for which such registered owner or any previous
registered owner of the estate or interest in question was registered,
or to see to the application of the purchase money or any part
thereof, or shall be affected by notice direct or constructive of any
trust or unregistered interest, any rule of law or equity to the con-
trary notwithstanding; and the knowledge that any such trust or
unregistered interest is in existence shall not of itself be imputed as
fraud.

The Queensland enactment, with which the Papua enactment is
all but verbally identical, is:19

A transferee, whether voluntary or not, of land under the provi-
sions of this Act shall not. except in the case of fraud, be affected
by actual or constructive notice of any claims, rights, titles, or in-
terests other than those which have been notified or protected by
entry on the register-book according to the provisions of this Act,
any rule of law or equity to the contrary notwithstanding. [13 Eliz.
not to be affected.]

"Hay v. Soiling (1895) 16 N. S. W. 60, 67, under a section now
standing as X. S. W. 1900, s. 124.

"It 1913, s. 161; Sas. 1917, s. 169; Al. 1906, s. 110; Can. 1906. s.
149; N. S. W. 1900, s. 130 (3) ; S. A. 1886, s. 216; Tas. 1862, s. 130:
V. 1915, s. 256; W. A. 1893, s. 211; N. Z. 1915, s. 196; Tr. 1902, s. 139:
J. 1888, s. 141. An illustration is Bell v. Beckman (1889) 10 N. S. W. Eq.
251.

MN. S. W. 1900, s. 43: S. A. 1886, ss. 186. 187; Tas. 1862, s. 114; V.
1915, s. 179 ; W. A. 1893, s. 134 ; N. Z. 1915, s. 197 ; If. 1913, s. 99 ; Sas.
1917, s. 194 ; Al. 1906, s. 135 ; Can. 1906, s. 167 ; Tr. 1902, s. 130 ; J. 1888.
s. 56. But by s. 7 of the Saskatchewan Homesteads Act (1915, c. 29)
" knowledge " of a wife's rights is " fraud " in a transferee, etc.

"Q. 1861, s. 109; P. 1913, s. 30. The differences between these and
other Australian enactments, by reason of the words " whether voluntary
or not," is referred to under " Voluntary Transactions," sect. 4 ante, p. 107.

124 CONCLUSIVENESS OF REGISTER. [Ch. iv.

It will be observed that the final clause of the other enactments,
as to " knowledge " not being imputed as " fraud," is absent in
Queensland and Papua, as also in Ireland, Ontario, British Co-
lumbia, and British Honduras, to be now referred to. The Irish
enactment is:20

The register shall be conclusive evidence of the title of the owner
as appearing thereon; and such title shall not, in the absence of
actual fraud, be in any way affected in consequence of such owner
having notice of any deed, document, or matter relating to the land;
but ... on the ground of actual fraud or mistake [rectification
may be ordered]

This has some resemblance to the Ontario enactment, which is :21

No person other than the parties thereto shall be deemed to have
any notice of the contents of any instruments other than those men-
tioned in the existing register of title of the parcel of land, or which
have been duly entered in the books of the office kept for the entry
of instruments received, or are in course of entry.

Fraud is not here mentioned, being dealt with in a separate
enactment (s. 121). In neither Irish nor Ontario enactments is
the clause found by which " knowledge " is " not of itself . . . im-
puted as fraud." The British Columbia enactment is to much the
same effect in different language; fraud is not mentioned, being
made a general exception in another place (s. 22). The enactment
as to notice is:22

No purchaser for valuable consideration of, or holder of a charge
or incumbrance on, any registered real estate or registered interest
in real estate, or as to which registration is pending, shall be affected
by any notice, express, implied, or constructive, of any title, interest
or disposition affecting such real estate, which is not registered, or
the registration of which is not pending, other than a leasehold
interest in possession for a term not exceeding three years, any rule
of law or equity to the contrary notwithstanding.

The British Honduras enactment differs in form from all the
preceding, being part of a schedule of rules relating to " caveats
and equitable interest, &c." The statute elsewhere (s. 43) enacts
that fraudulent entries are " void as between all parties privies to
such fraud." The enactment as to notice is : 23

When application is made to the registrar to transfer registered
lands to a purchaser, and there is no caveat lodged, or if lodged such
caveat has been removed, the registrar may make such transfer
although in point of fact the said lands may be incumbered, and an

20 1. 1891, s. 34 (1). "B. C. 1911, s. 104 (2).

21 On. 1914, s. 80. " B. H. 1914, sch. D, r. 12.

SECT, bj NOTICE. 105

alienee for valuable consideration to whom the said lands are trans-
ferred shall take the said lands free from all incumbrances, whether
such alienee have notice thereof or not.

The omission, in six out of these eighteen jurisdictions, to state
in express terms that knowledge of an unregistered interest is not
of itself to be imputed as fraud, is hardly sufficient to make the
construction of these six enactments different from that of the
other twelve. It is definitely enacted that notice of an unregis-
tered interest is not to affect the registered title, and this together
with the plain exception of fraud seems sufficient to make it clear
that mere notice is not necessarily to be " imputed as fraud " in
these six jurisdictions any more than in the other twelve. Most of
the cases under the relevant enactments have resulted in notice be-
ing held either insufficient, or else effective as amounting to fraud
in the particular circumstances.-4 But it has been laid down in
British Columbia that the effect of the enactment now standing as
B. C. 1911, s. 104 (2) "must be taken as absolutely protecting a
purchaser for value against attack on the ground of notice of any
character," subject to the qualification that a man with actual no-
tice deliberately relying on the words of the enactment " must be
held to be guilty of actual fraud." 25 And in Ireland the doctrine
of notice has been " swept away by the 34th section of the Act, and
replaced by the principle of relief against fraud in which it had its
origin."29 In Queensland (and Papua will be on the same footing)
cases under other Australasian enactments are treated as authori-
tative."

These general enactments relating to notice contemplate the
possibility of the registered owner receiving notice of unregistered
interests either before or after he is registered. Mere notice re-
ceived only after due registration is almost necessarily inoperative
as being inconsistent with the scheme of a conclusive register, and
fraud or mistake would require to be superadded in order to make
notice effective in such a case. The enactments are chiefly import-
ant with respect to notice received before the person receiving it is
formally placed on the register as owner. As to this, a difficulty
has arisen on the construction of these enactments, and the question

"Under On. 1914, s. 80: In re Skill and Thompson (1908) 17 O. L. R.
186; and see Dodds v. Harper (1916) 37 O. L. R. 37. Under B. C. 1911, s.
104 (2) ; Hudson's Bay Co. v. Kearns (1896) 3 B. C. R. 330, 4 B. C. R.
536; Chapman v. Edwards (1911) 19 West. R. 266 (approved of, on ground
of fraud, in Bwnk of Hamilton v. H artery (1919) 58 Can. S. C. R. 338).

* Hudson's Bay Co. v. Kearns, supra. And see Loke Yew v. Port Swet-
tenham Rubber Co. [1913] A. C. 491.

» In re Walsh [1916] 1 I. R. 40.

* See Power's R. P. Acts, 144-147.

l^G CONCLUSIVENESS OF REGISTER. [Ch. iv.

has been raised whether a purchaser is amenable to notice at any
time before being registered, or whether the initiation of his nego-
tiations with the registered owner entitles him to disregard all ad-
verse claims of which notice is received only after the initiation.

The enactments have been taken, in several cases,28 to mean that
a person who acquires any merely equitable interest from a regis-
tered owner gains some statutory protection under these enactments
—that he is entitled, in fact, to rely on his vendor's registered title
before he is himself registered. Both on principle and the balance
of authority this view, as thus widely stated, seems inadmissible.
Even those unregistered equitable interests that do receive a very
special recognition — as equitable mortgages by deposit of certificate
of title 29 — are not protected under these enactments relating to no-
tice in general.30 The immunity which the purchaser is to enjoy
from the effect of notice is only to be afforded him if and when he
does become registered, and not before.31 Before he does become
registered, it is open to any adverse claimant to step in and assert
his claim, and for the purpose of trying this claim registration may
be stayed — by caveat or otherwise.32 Under many circumstances
the unregistered purchaser will have a superior equity in his claim
to registration, and in such cases his rights do for practical purposes
crystallize at the moment of the contract for sale coming into exist-
ence. Thus, a purchaser from a mortgagee can resist the mort-
gagor's claim to redeem before registration of the purchaser's formal
transfer.33

The doctrine of notice is not, in fact, affected by these enact-
ments except as regards registered interests, and any questions of
priority between unregistered interests that depend on that doctrine
will have to be decided on general principles of equity jurispru-
dence; even an accidental failure to obtain registration will not
prevent those principles being applied, to the exclusion of the statu-

28 Public Trustee v. Arthur (1892) 25 S. A. R. 59, 83; Cooper v. An-
derson (1912) 20 West. R. 347 (Man.) ; Arnot v. Peterson (1912) 21 West.
R. 123 (Al.) ; Bain v. Pitfield (1916) 31 West. R. 681 (Man.). Some of
these cases are stated in Can. Torr. Syst. 176. See also North-West Con-
struction Co. v. Valle (1906) 4 West. R. 37 (Man.).

29 See chap. VI., sect. 4, sub-sect. 1. post.

30 See, for example General Finance Co. v. Perpetual Executors Assoc.
(1902) 27 V. L. R. 739.

"■Coicell v. Stacey (1887) 13 V. L. R. 80; Baker's Creek G. M. Co. v.
Hack (1894) 15 N. S. W. Eq. 207; Sol-Gen. v. Mere Tini (1899) 17 N.
Z. R. 773; Grout v. Beissel [1909] V. L. R. 207; Chapman v. Edwards
(1911) 19 West. R. 266 (B. C.) ; Wallace v. Smart (1912) 19 West. R.
787 (Man.), where the purchaser (though registered) was registered ex-
pressly subject to the adverse claim.

82 Cases in preceding note.

S3Saltman v. McColl (1909) 12 West. R. 146, 14 ib. 91 (Man.)

Sect. 6] NOTICE. 12-v

tory modification of the doctrine of notice.34 On the other hand,
even an accidental success in obtaining registration will oust, as
far as a registered owner is concerned, the application of these prin-
ciples, and nothing short of fraud will be allowed to deprive the
owner of the advantage of his registered title.35 These enactments
as to notice are merely ancillary to those others whose primary
object is to make the register conclusive, and are not intended to
make notice ineffective against any but registered owners 36 — thus
adding nothing substantial to enactments which simply make the
register conclusive. Cases in which registration has been set aside
by reason of the registered owner having got on the register with
notice of an adverse interest can only be upheld on the ground that
the notice really amounted to fraud.37

It should be observed that these enactments which refer to pur-
chasers before registration do distinctly relieve the proposing pur-
chaser from the necessity of enquiring into the circumstances of his
vendor's acquisition of a registered title, or of seeing to the applica-
tion of purchase money, apart from making notice ineffective.38
But these provisions seem only to be designed to make it clear that
the absence of such enquiry, &c, is not to be treated as constructive
notice, and has no effect in strengthening the position of the pur-
chaser if he does receive notice of circumstances which make it
fraudulent to proceed to registration.39

Notice being thus differentiated from fraud in all these jurisdic-
tions (as distinguished from the four referred to ante p. 120),
the difficulty has been to draw the dividing line between notice that
is by the statutes made ineffective, and notice that amounts to
fraud.

In some cases notice of adverse claims or interests has been

** George v. Aust. Mut. Prov. Soc. (1885) 4 N. Z. S. C. 165 ; Barnes
V. James (1901) 27 V. L. R. 749; General Finance Co. v. Perpetual Exe-
cutors Assoc, supra; In re Hope & Co.'s Petition (1903) Jamaica, unre-
ported; Crout V. Beissel, supra; Barry v. Heider (1914) 19 C. L. R. 197.

u Butler v. Fairclough (1917) 23 C. L. R. 78, on tbis point the dissent-
ing judgment being to the same effect as that of the majority; Zachariah v.
Morrow (1915) 34 N. Z. R. 885.

"See particularly Sol-Gen. v. Mere Tini (supra) as to reading the
various enactments together; ss. 189, 36. 56, and 190 of the 1885 statute
now stand as N. Z. 1915, ss. 197, 38, 59, 198.

*T Illustrations are: Colonial Bank v. Pie (1880) 6 V. L. R. 186:
Sheerin V. Sheerin (1903) 5 N. Z. Gaz. 421 : Tasker v. Carrigan (1909)
11 West. R. 621 (Sas.) ; Chapman v. Edwards (1911) 19 West. R.
266 (B.C.)— approved of in Sup. Ct. Can. ante, p. 125; RoUnson v. Ford
(1914) 31 West R. 13 (Sas.).

MSee Colonial Bank v. Pie (1880) 6 V. L. R. 186, 193; Perpetual
Trustee Co. v. Cowan (1900) 21 N. S. W. Eq. 278, 301.

89 See George v. Aust. Mut. Prov. Soc. (1885) 4 N. Z. S. C. 165; Fel*
v. Knowles (1906) 26 N. Z. R. 604; Quill v. Hall (1908) 27 N. Z. R. 545.

128 CONCLUSIVENESS OF REGISTER. [Ch. iv.

accompanied by conduct not strictly honest, and indicating " a low
moral perception " ; this has been held not to be fraud for the pur-
pose of these enactments, and so ineffective as notice against the
registered title.40 These cases perhaps would hardly be followed in
all jurisdictions at the present day, but they represent the tendency
shewn in modern cases to construe statutes according to their plain
language, and allow persons with opposing interests to stand on
their legal rights.41

Other cases, in which notice of adverse claims or interests have
not been accompanied by any dishonesty or overreaching, stand on
a firmer footing, and in the absence of actual fraud notice is not
allowed to have any effect on the registered title.42 Such cases as
these, where the advantage obtained by registration has been gained
through the slackness or carelessness of the owner of the adverse in-
terest, receive considerable support from the principle (above re-
ferred to) under which an advantage may legitimately be acquired
by standing on the legal right conferred by a statute.43

Notwithstanding some earlier cases to the contrary, it must now
be taken as established that no notice of adverse claims or interests
that can only be treated as fraud constructively, or by the extension
of equitable doctrines, but implies no dishonesty of conduct, will be
effectual against the registered title.44

Perhaps the cases most difficult to deal with, as to whether the
notice amounts to fraud or not, are those in which the unregistered
interest is not technically adverse to the registered title, but repre-
sents a beneficial interest which a former registered owner was
bound to protect. Such cases usually involve the question of trus-
tees' powers being properly exercised, and how far the person taking
title from the trustees has been justified in ignoring the existence of
the beneficiaries' interests. Apparently, nothing short of an

40 Robertson v. Keith (1870) 1 V. R. 11; Lake v. Jones (1889) 15
V. L. R. 728; Rounsevell v. Ryan [1910] S. A. R. 67.

41 See In re Monolithic Build. Co. [1915] 1 Ch. 643, referred to ante,
p. 121. The language of the Privy Council in Lolce Yew v. Port Swetten-
ham Rubber Co. [1915] A. C. 491, does not however encourage a narrow
interpretation of " fraud." And as to what conduct will be considered
"fraud," see Syndicat Lyonnais v. McOrade (1905) 36 Can. S. C. R. 251;
Annable v. Coventry (1912) 46 Can. S. C. R. 573; Sydie v. Saskatchewan
and Battle River Co. (1913) 25 West. R. 570 (Al.), where Aust. Torr.
Syst. 835 is referred to.

42 Nicholson v. Bank of New Zealand (1894) 12 N. Z. R. 427; Oertel
v. Hordern (1902) 2 S. R. (N. S. W.) Eq. 37; Shaw v. Bailey (1907) 6
West. R. 197 (Man.) ; Butler v. Fairclough (1917) 23 C. L. R. 78.

43 See In re Monolithic Build. Co., supra.

"Assets Co. v. Mere Roihi [1905] A. C. 176; North-West Construc-
tion Co. v. Valle (1906) 4 West. R. 37 (Man.) ; Colonial Bank v. Pie
(1880) 6 V. L. R. 186; Zachariah v. Morrow (1915) 34 N. Z. R. 885; Ross
v. Stovall [1919] 1 W. W. R. 673 ; Union Bank of Canada v. Boulter Waugh
Lim. (1919) 58 Can. S. C. R. 385 ; Dominion Fire-brick Products Lim. V.
Pollock [1919] 2 W. W. R. 245 (Sas.).

Sect. 7 J MISTAKE. 229

attempt to acquire the registered title by some dishonesty, and with
the purpose of defeating the beneficiaries' interests, will make the
registered title inconclusive when once vested in a purchaser or
mortgagee.43 Cases in which it was held unnecessary for a pur-
chaser to enquire into the circumstances behind the registered title
of a trustee, and specific performance was ordered, are a fortiori
authorities for the position that no notice short of notice of an in-
tended breach of trust would ordinarily be sufficient to derogate
from the conclusiveness of the purchaser's title when once regis-
tered.46

SECTION 7 MISTAKE.

In the statutes of Fiji, Federated Malay States, and British
Honduras, mistake is not referred to at all in connexion with the
conclusiveness of the register — apart, of course, from any adverse
claims that are allowed (as in British Honduras) to be put for-
ward. In other jurisdictions mistake is referred to as a ground for
the register being inconclusive in one way or another. The princi-
ple underlying the legislation seems to be that, on the whole, mis-
take is to be treated somewhat like fraud, so that complete conclu-
siveness of title can only be obtained by purchasers for value bona
fide and duly registered.

Notwithstanding the absence of any express reference to mis-
take in the statutes of Fiji, Federated Malay States, and British
Honduras, it seems indisputable that mistake would under many
circumstances be treated there also on much the same footing as
fraud.1

In four jurisdictions — England, Ireland, Ontario, Leeward Is-
lands 2 — mistake or error in bringing about registration is more
distinctly referred to as a general ground for the register being re-
garded as inconclusive, either with respect to the actual title or lia-

" Smith v. Essery (1891) 9 X. Z. R. 49: Cooke v. Union Bank (1893)
14 N. S. W. Eq. 280; Gregoni v. Alger (1893) 19 V. L. R. 565; Crout V.
Beissel [19091 V. L. R. 207.

48 See George v. Aust. Mut. Prov. Soc. (1885) 4 N. Z. S. C. 165; Fels
v. Knoxrles (1906) 26 N. Z. R. 604; Quill v. Hall (1908) 27 N. Z. R.
545.

'See Loke Tew v. Port Swettenham Rubber Co. [1913] A. C. 491.
This case has been followed in New Zealand and there treated as cover-
ing the case of a transfer differing by mistake from the contract of sale :
Taitapu Gold Estates v. Proxcse [1916] N. Z. R. 825.

*Eng. 1875, s. 95, and 1897. s. 7 : I. 1891. ss. 34. 93; On. 1914. ss.
115, 124; L. Is. 1886 (1914). ss. 19. 134. "Mistake" is tbe word used in
the English and Irish. " error " in the Ontario enactments ; in Leeward
Islands the expression is " wilful misrepresentation or otherwise," which
seems to include mistake.

R.T.L. — 9

130 CONCLUSIVENESS OF REGISTER. [Ch. iv.

a bility for compensation. Eectification of the register rather than

indemnity for loss is regarded as the proper remedy, but a close
comparison of the statutes of these four jurisdictions with others
will shew that the difference is not so great as at first appears. In
England and Ontario rectification can only be made " subject to

,_jfe_ any estates or rights acquired by registration," and this effectually
protects bona, fide purchasers for value who are duly registered; in
Ireland the court may " on the ground of actual fraud or mistake "
order rectification " in such manner and on such terms as it thinks
just," and though duly registered titles are not directly and in
terms protected, there seems to be sufficient protection implied
in favour of bona fide transactions for value.3 In Leeward Islands
the " certificate of title " that has been " wrongfully issued " is to be
called in for cancellation, without prejudice to the rights of any
" transferee or incumbrancee . . . bona, fide for value without no-
tice." 4 In England and Ontario, though " mistake " is not ex-
pressly made a ground of rectification as in Ireland, yet the impli-
cation to the same effect seems quite clear.

Where rectification cannot be effected, and the registered owner
is not a purchaser for value, he may be liable for indemnity; this
is referred to in Sect. 10 post — " Liability to rightful owner," &c.
In these four jurisdictions no distinction is drawn by the stat-
utes between one kind of mistake and another as affecting the con-
clusiveness of the registered title to the land itself, though in On-

y tario " wrong description of the property or otherwise " is referred

k to in connexion with the registered owner's liability for pecuniary

damages. B But a distinction between mere misdescription and act-
ual want of title must almost necessarily be made,6 and the distinc-
tion is clearly implied in England, Ireland, and Ontario, by the fact

» that the conclusiveness of the register does not as a rule extend to

boundaries.7 In Ireland a distinction is also made between " actual
fraud or mistake " and " error " of " misstatement, misdescription,
omission, or otherwise," the latter being rectifiable u without injury
to any other person." 8

3 Some Irish cases are: Goodisson v. Goodisson [1913] 1 I. R. 81; In
're Walsh [1916] 1 I. It. 40 ; In re Buckley [1917] 1 I. R. 47.

* It is possible that the Australian case of Registrar of Titles v. Esper-
ance Land Co. (1899, 1 W. A. R. 1, 8) may apply to the Leeward Islands
enactment, when the mistake is one of " counting tbe land twice over."

8 On. 1914, s. 124 (2).

•See, for instance, Zock v. Clayton (1912) 28 O. L. R. 447, which
would be equally applicable in the Australian jurisdictions.

TEng. 1897 s. 14 (2), and 1903-8 Rules, rr. 269-274; I. 1891, ss. 55-60,
and 1910 O. 9 ; On. 1914, ss. 24 (2), 98.
$t 8 1. 1891, s. 34. See In re Walsh (1916) 1 I. R. 40. An Ontario case is

Perry v. Vise (1919) 45 O. L. R. 117.

Sect. 7 J MISTAKE.

131

The initial registration of an owner on the strength of a bad or*
imperfect title can be described literally as a mistake. In some
respects a first registered owner resembles a volunteer as contrasted
with a purchaser for value, but — as pointed out ante, p. 109, under
" Voluntary transactions " — initial registration on a bad title is
better treated under the head of Mistake. That an owner, thus
wrongfully registered, could not rely on the register as com-
pletely conclusive in his favour seems clear; if the register could
not be rectified against him he would usually be liable for indem-
nity. A difficulty is raised by the words " subject to estates or
rights acquired by registration " in the English and Ontario stat-
utes. It is possible to construe these words as referring to all cases
of initial and subsequent registration, to cases of subsequent regis-
tration only (excluding initial registration), or to cases of subse-
quent registration and also cases of initial registration where the
applicant's title is not a legal fee simple.8 On their proper con-
struction it will depend in some degree whether an owner registered
with a bad title loses the land or pays indemnity instead. The lia-
bility to pay indemnity as one kind of inconclusiveness of the reg-
ister is dealt with in Sect. 10, post.

In the remaining fifteen jurisdictions mistake generally is not
by the statutes made so distinctly a ground for disputing the con-
clusiveness of the register as in the four just referred to. Where
the register is inconclusive by reason of mistake, indemnity rather
than rectification is often regarded as the more appropriate
remedy. Owing to the fact that a strict time limit (usually
six years) is set for claims of indemnity, the existence of a right
to indemnity is sometimes lost sight of in cases where rectifica-
tion on the ground of mistake has been refused.10 Rectification
however may sometimes be had when no rights of third parties have
intervened,11 but not always when there has been a common mis-
take, and the registered owner is not affected by any notice prior to
registration amounting to fraud.12

In eleven jurisdictions — New South Wales, Queensland, South
Australia, Tasmania, Victoria, Western Australia, Papua, New

•See Own. & Inc. 257: Att.-Gen. v. Odell [1906] 2 Ch. 47, 73. 76,
77. This third alternative is suggested by a writer in the Solicitors' Jour-
nal for Jan. 16. 1909 (vol. 53, p. 194).

10 See Bonnin v. Andretos (1878) 12 S. A. R. 153; Coleman v. Riria
Puwhanga (1885) 4 N. Z. S. C. 230; Hamilton v. Iredale (1903) 3 S. R.
(N. S. W.) 535; Assets Co. v. Mere Roihi [1905] A. C. 176.

11 Taitapu Cold Estates v. Prowse [1916] N. Z. R. 825, follg. Lofce
Yew v. Port Swettenham Rubber Co. [1913] A. C. 491.

"Zachariah v. Morrow (1915) 34 X. Z. R. 885, fOllg. In re Monolithic
Build. Co. [1915] 1 Ch. 643.

132 CONCLUSIVENESS OF REGISTER. [Ch. IV.

Zealand, British Columbia, Trinidad-Tobago, Jamaica 13 — the stat-
utes mention three kinds of mistake by way of exception to the con-
clusiveness of the register with respect to the title to the land itself :
— ( 1 ) AVhere another person is already registered as owner in respect
of the same interest; (2) Where an easement is omitted or mis-
described — in South Australia if not otherwise " barred or
avoided," and in British Columbia a "public easement"; (3) Where
the parcels are misdescribed, and (except in British Columbia) the
registered owner is not a purchaser or mortgagee bona fide for value
from a registered predecessor. In each jurisdiction (including
British Columbia) there is an enactment protecting registered pur-
chasers and mortgagees notwithstanding any " error " in the regis-
tration of the vendor or mortgagor with respect to description of
parcels " or otherwise."

Easements have been referred to in Sect. 1, ante, p. 101.

The Australasian cases on double or conflicting registration,14
and also on misdescription of parcels,15 apply in others of these jur-
isdictions. These two classes of mistake overlap to some extent, but
it is clear that cases of double or conflicting registration do not
include cases of mere misdescription, and that cases of misdescrip-
tion may incidentally involve double registration.

This double or conflicting registration referred to as a case of
the registration being inconclusive occurs when some person is reg-
istered in respect of an interest, already standing on the register in
the name of another, through some substantial mistake as to title,
and not merely as to the identity, area, or boundaries of the par-
cels. When such a mistake occurs the registration first in date
prevails and remains conclusive, while the later in date is avoided.
It is of course impossible that the register should literally be con-
clusive as to the ownership of both persons, though one may be
entitled to indemnity. Where the mistake is one of misdescrip-
tion, and the result is that the whole or part of the first OAvner's
registration is cancelled and the later owner registered in place of
the former, this is not double or conflicting registration so as to
make the second registration necessarily inconclusive ;16 the conflict-
ing claims of the two owners are dealt with -on a different principle.
Double or conflicting registration occurs where the second applicant

13 N. S. W. 1900, ss. 42, 124, 135 ; Q. 1861. ss. 44, 123, 126 ; S. A. 1886,
ss. 69, 207; Tas. 1862, ss. 40, 124, 126; V. 1915, ss. 72, 244, 247; W. A.
1893, ss. 68, 199. 202: B. C. 1911, ss. 22 (1). 25A, 124; Tr. 1902, ss. 47,
132, 135 ; J. 1888, ss. 55, 135, 137. As to Ontario, see preceding notes.

"See Aust. Torr. Syst. 823; Hutch. 77-82.

15 See Aust. Torr. Syst. 824, 828 ; Hutch. 81.

"Ilassett v. Colonial Bank (1881) 7 V. L. R. L. 380.

SECT. 7 J MISTAKE.

133

for registration, having no title to the land at all owing to the same
land being already registered as the property of another person, is
yet placed on the register as owner. This usually happens through
some mistake in the registry, sometimes aided by the negligence of
the applicant, and may occur either by way of initial registration 17
or in the course of a transaction with land already registered.18
The case of a purchaser registered under a tax sale, bad for want of
proper notices, has been treated as one of registration to be set aside
in favour of a prior and conflicting registration.10

The distinction between having no title to the property and
misdescribing it is not always easy to draw. It is not a misdescrip-
tion of the land if tbe applicant for registration describes it cor-
rectly and gets registered in respect of it by the same description ;20
but a mistake as to the identity of tbe owner may be a misdescrip-
tion quite as much as a mistake in the area or the measurement of
boundaries.21 On the other .hand, the applicant may have made no
mistake, and may be registered in respect of land for which he has
not applied; this, when the land is already in another person's
name, is not always treated as a case of misdescription, but some-
times as want of title resulting in double registration.22

Misdescription may consist of error in the statement of the area
of the land,23 the boundaries 24 — the commonest case — or some fact
connected with the identity of the property or its owner.25 The
presumption, where registrations do overlap in cases of mere mis-
description, as to prior date of registration conferring conclusive
title, is of the weakest, though this priority is often referred to in
cases where the mistake is in the subsequent registration.26 The
register, as constituted by an owner's certificate of title, has to be
construed like any other document, and the " identity " of land " is

"Oclkcrs v. Merry (1872) 2 Q. S. C. R. 193; Zock v. Clayton (1912)
2S O. L. R. 447. an illustrative Ontario case referred to ante p. 130.

"Miller v. Davy (1889) 7 X. Z. R. 515: Registrar of Titles v. Esper-
ance Land Co. (1899) 1 W. A. R. 118.

19 Wallbridge v. Steenson [19181 2 W. W. R. 801 (Sas.). So where the
registration of a public authority was set aside : Sutherland v. Spruce Grove
Muuieip. [1919] 1 W. W. R. 274 (Al.).

"Hamilton v. Iredale (1903) 3 S. R. (X. S. W.) 535.

21 Hassett v. Colonial Bank (1881) 7 V. L. R. L. 380.

23 Registrar of Titles v. Esperance Land Co., supra. But this will
not exclude the right to indemnity from State funds.

"Burden v. North Alberta Registrar (1913) 25 West. R. 460 (Al.) ;
Hansen v. Eranz (1918) 57 Can. S. C. R. 57 ; in Alberta the register is never
conclusive in respect of parcels misdescribed : see post.

"Cases in Aust. Torr. Syst. 823. 828.

" Hassett v. Colonial Bank, smrra; Hamilton v. Iredale, supra.

"Lloyd v. May field (1885) 7 Aust. L. T. 48; Stevens v. Williams
(1886) 12 V. L. R. 152; Registrar of Titles v. Esperance Land Co. (1899)
1 W. A. R. 118 ; National Trustees Co. v. Hassett [1907] V. L. R. 404, 416.

134 CONCLUSIVENESS OF REGISTER. [Ch. IV.

not necessarily to be determined by a mere literal application of
the description contained in the certificate of title to the locus in
dispute." 27 Sometimes, of course, misdescription does not involve
any double registration or overlapping of registration, but land not
yet on the register is erroneously included in the registered owner's
title.28 As already stated, the mere mistake of including land to
which the applicant for registration has no title is not necessarily a
misdescription for the purpose of making the register inconclusive.29
Even if the mistake is one of misdescription merely, and not
substantially one of double registration or "no title," the regis-
tered owner may still be able to rely on his registration as conclu-
sive if he can shew that he is a purchaser or mortgagee bona fide for
value from an owner already registered.30 But the consequences
of mistake — whether in description of parcels or otherwise — in the
case of initial registration are different. The initial registration
may be conclusive as to the title to the land itself, but may still leave
the first registered owner liable to compensate the rightful owner
(Sect. 10, post) ; purchase from an owner already registered gets
rid of this liability also.31 What amounts to bona fide purchase,
&c, is of course chiefly a question of fact, but what constitutes bona
fides may be a question of law; " notice or knowledge or the means
of knowledge " of the misdescription would usually have to be
proved against him.32 A person who purchases land by a descrip-
tion differing from that on the register is not necessarily a " pur-
chaser for value " of the property described in the register.33 And
even if he be a purchaser for value bona fide he may still have to
submit .to his registration being corrected on the demand of the
registry office ; his title to the land itself would then not be conclu-
sive, but the register would be so far conclusive in his favour as to
give him a right to compensation.34

21 Overland V. Lenehan (1901) 11 Q. L. J. 59; Pleasance V. Allen
(1889) 15 V. L. R. 601. Sometimes the position of old landmarks has to
be ascertained, as in Turner v. Myerson (1918) 18 S. R. (N. S. W.) 133.
Area was preferred to boundaries in Watcham v. Att.-Oen. of East Africa
[1919] A. C. 533.

2SRourke v. Schweikert (1888) 9 N. S. W. Eq. 152.

29 Hamilton v. Iredale (1903) 3 S. R (N. S. W.) 535.

30 Hay v. Soiling (1895) 16 N. S'. W. 60, 67; Smith v. Registrar of
Titles (1910) Jamaica, unreported.

slSee Oelkers v. Merry (1872) 2 Q. S. C. R. 193; Main v. Robertson
(1886) 7 Aust. L. T. 127.

32 Hay v. Soiling, supra. In Marsden v. McAlister (1887, 8 N. S. W.
300) the registered owners were the trustees of a deceased owner and
were not treated as purchasers.

33 Pleasance v. Allen (1889) 15 V. L. R. 601.

84 Registrar of Titles v. Esperance Land Co., supra. This case per-
haps applies also in Leeward Islands (ante, p. 130). As to claims for
compensation, see sect. 10, post.

Sect. 7] MISTAKE. I35

Occasionally the description may be so vague that the property
intended to be referred to is not identifiable: in such a case the
register is of course not conclusive as evidence of the owner's title.35

Four jurisdictions — Xew South Wales, Queensland, Papua,
Trinidad-Tobago 36 — have a provision peculiar to them with respect
to mistakes consisting in double registration or misdescription of
parcels. Under these circumstances the registered owner is en-
titled to be paid the value of any buildings, &c, that he may have
erected on the land since the wrongful registration, and failing this
payment the rightful owner cannot recover the land itself but only
the value of the land without the buildings.

In Manitoba 3T no mention is made of omission or misdescrip-
tion of easements, the two kinds of mistake mentioned being double
registration and misdescription of parcels as in the eleven jurisdic-
tions above dealt with. The relevant enactments are contained in
one section only, instead of three, and the general enactment pro-
tecting purchasers from the consequences of mistake in their pre-
decessors' registration is absent. The effect of the single section
seems however (except as to easements) to be the same as that of
the enactments in the other eleven jurisdictions.

The enactments in Saskatchewan, Alberta, and Xorth-West Ter-
ritories 38 agree with that of Manitoba in omitting the reference to
easements: in other respects they follow those of the eleven juris-
dictions above, with one important difference. Xo exception is
made in these three jurisdictions for the case of a purchaser or
mortgagee whose vendor or mortgagor has been registered with an
erroneous description of the parcels, so that in Saskatchewan, Al-
berta, and Xorth-West Territories the register is not under any cir-
cumstances conclusive as to parcels.39

The question of correcting obvious mistakes in the register, and
calling upon persons interested to submit to more serious mistakes
being put right, need not be referred to here at any length. The
majority of the statutes confer ample powers of correction and

"Rorison v. Kolcsoff (1910) 15 West. R. 497 (B. C).

"N. S. W. 1900. 8. 125: Q. 1861. s. 47: P. 1913. s. 145: Tr. 1902.
s. 133. The Queensland eases of Oelkers v. Merry (supra) and Merry v.
Aust. Mut. Prov. (1872. 3 Q. S. C. R. 40>. decided before the Q. 1877.
illustrate the hardship against which these enactments were intended to
guard.

"M. 1913, s. 84.

*Sas. 1917, ss. 159. 174; Al. 1906, ss. 44. 104. 106: Can. 1906. ss.
142, 144, 174.

"An unreported Alberta ease (Hextall v. Burns, 1911) is stated in
Can. Torr. Syst. 197. And see Burden v. Xorih Alberta Registrar and Han-
sen v. Franz, referred to in note 23. p. 133 ante.

136 CONCLUSIVENESS OF REGISTER. [Ch. rv.

rectification on the registry officers and the courts,40 though the
machinery for effecting alterations in the register may differ in dif-
ferent jurisdictions.41 Only in British Honduras are these powers
left to be implied; but even there the implication that proper pow-
ers of the kind are available seems clear.42 A few points from de-
cided cases, supplementing the text-books cited, may be referred
to. Mandamus will lie against the registrar to register an instru-
ment or correct the register, but the court will not always interfere
with the registrar's judicial discretion.43 The ordinary power of
the courts to rectify executed instruments extends to registered in-
struments such as a mortgage.44 The precise method of enforcing
hostile rights against a registered owner is not important, and
either the register itself may be altered, or the owner may be de-
clared a trustee for the person rightfully entitled.45 The mere fact
of the land being on the register with a fully warranted title will
not prevent rectification against a wrong-doer " so long as the rights
of third parties are not implicated," 46 and a fortiori errors more or
less obvious can be put right when they arise merely through some
mistake. As against purchasers for value bona, fide the right of the
registry to insist on correcting a mistake appears to be stronger
than that of a rightful owner.47

SECTION 8 FRAUD.

In England, Ontario, and Trinidad-Tobago, there is no general
enactment making the register inconclusive for fraud, though in
Trinidad-Tobago there are provisions as to fraud which suggest
that the omission of the general enactment from the local statute is

40 See Own. & Inc. 238, 255 et seq.; Aust. Torr. Syst. 842 et seq.;
Can. Torr. Syst. 146, 199 ; N. Z. 1915, ss. 73-78, Hutch. 91-95 ; I. 1891, s.
34 (2). Two Irish cases are: In re Leonard's Estate and In re Hussey's
Estate [1912] 1 I. R. 212, 473.

" National Trustees Co. v. Hassett [1907] V. L. R. 404, 422.

42 See Loke Yew v. Port Swettenham Rubber Co. [1913] A. C. 491.
Against this there is an observation in In re Walsh [1916] 1 I. R. 40, re-
garding the necessity for express jurisdiction to correct mistakes in the
register.

43 Perpetual Executors Assoc, v. Hosken (1912) 14 C. L. R. 286; Ex p.
Gallagher (1908) 8 S. R. (N. S. W.) 230.

* Cudmore v. Cudmore [1892] S. A. R. 119.

45 Macdonald {John) d Co. v. Tew (1914) 32 O. L. R. 262.

46 Loke Yew v. Port Swettenham Rubber Co., supra, at p. 504. The
observations in this case have a special value when applied to the statutes
of such jurisdictions as British Honduras (Uganda and Sudan being further
instances), where express powers of correcting the register are not in terms
conferred. See note 42.

47 See Registrar of Titles v. Esperance Land Co. (1899) 1 W. A. R. 118.

Sect. 8] FRAUD. 137

due to an oversight iu drafting.1 In England and Ontario fraudu-
lent dispositions are made void, and the statutory powers of rectify-
ing the register by necessary implication include cases of fraud.-

In the other nineteen jurisdictions fraud is one of the express
exceptions which prevent the register being conclusive. In many
of the statutes the jurisdiction of the courts with respect to fraud
is also in terms preserved, but without any such express enactments
the courts would seem to have ample power to deal with fraud.
That a registration statute is not to be used for the perpetration of
fraud is still an " inflexible rule." 3

The scheme of the statutes as a whole (including England,
Ontario, and Trinidad-Tobago) is to treat fraud as in general viti-
ating any registration, and supplement this by provisions making
the register conclusive where the registered owner has not himself
been concerned in the fraud. Except in some cases of initial reg-
istration, the registered owner must usually also be a purchaser for
value. There are some further exceptions and modifications, but
notwithstanding the difference in form between some of the enact-
ments (for example those of England and Xew South Wales) the
scheme is substantially the same in each of the twenty-two juris-
dictions here treated of. Some of the enactments in which fraud
is mentioned have already been cited and need not all be further
referred to here, viz., those relating to notice (ante, p. 123, Sect.

6— "Notice").

In England and Ontario 4 it is clearly implied in the enactments
that fraud is one of the grounds on which the register may be recti-
fied. Dispositions which if unregistered would be fraudulent and
void are to be so notwithstanding registration, and the register may
be rectified accordingly, but these enactments only take effect sub-
ject to the enactment protecting " registered dispositions for valu-
able consideration " and subject to " estates and rights acquired
by registration/' It is also provided that in certain cases the
register is to be rectified and compensation paid to the person re-
moved from the register — that is, the register is not (in such rases)

1Tr. 1902. ss. 130. 1-12. 135. The words "except in ease of fraud"
are omitted from s. 47— the enactment corresponding with X. S. W. 1900.
s. 42.

*Eng. 1875. ss. 95. 98. and 1897. s. 7 (1, 2) : On. 1914. ss. 115. 121.
124 (7).

3 Hudson's Bay Co. v. Krarns (1890) 4 B. C. R. 536: gyndlcat Lyon-
nais v. McGrade (1905) 36 Can. S. C. R. 251. And see Loke Tew v. Port
Sicettcnham Rubber Co. [1913] A. C. 491. An American case affords a
striking illustration, an initial resristration being set aside for fraud under a
statute which contained no exception for fraud: Baart v. Martin (1906)
116 Am. St. R. 394, 99 Minn. 197.

* Note 2. supra.

138 CONCLUSIVENESS OF REGISTER. [Ch. iv.

literally conclusive as to title but only gives a right of indemnifica-
tion. The cases referred to are two: (1) "Where a registered dis-
position would if unregistered be absolutely void"; (2) Where the
effect of the wrongful registration " would be to deprive a person
of land of which he is in possession or in receipt of the rents and
profits."

Whether the expression " subject to estates or rights acquired by
registration " includes the statutory estate conferred by initial
registration, or only interests by way of transfer, &c, is not clear;
if initial registration is not included, a first registered owner,
though innocent of the fraud and possibly entitled to compensation
for removal, could not (apart altogether from the two special cases
last mentioned) rely on the register as being conclusive of his title.5

Ireland, Fiji, British Honduras, Leeward Islands, and Feder-
ated Malay States 6 are alike in the scantiness of the enactments
mentioning fraud. In Ireland a single section enacts that the
register is to be " conclusive evidence of the title of the owner," and
the title is not " in the absence of actual fraud " to be affected by
the owner having notice of anything relating to the land; but the
court's jurisdiction is preserved over u actual fraud or mistake," and
rectification of the register may be ordered " in such manner and
on such terms as it thinks just." In Fiji and Federated Malay
States only " purchasers " are mentioned as having a warranted
title, and the title of the registered owner is " subject to challenge
... on the ground of fraud or misrepresentation to which he is
proved to be a party " ; the jurisdiction of the courts over " actual
fraud " is preserved. In British Honduras the register is evidence
of title " to the exclusion of all other evidence (evidence of fraud
only excepted)." In Leeward Islands the register can be "chal-
lenged ... on the ground of fraud connected with " a registration.
The intention of all five statutes seems to be that the register is
only to be inconclusive for fraud of the owner for the time being,
but this only appears clearly in Fiji and Federated Malay States
enactments.

In British Columbia 7 fraud is only mentioned in connexion
with the register of fully warranted title — "register of indefeas-
ible fees," and this is " subject to . . . the right of any person to
shew fraud wherein the registered owner has participated in any

6 See sect. 4 — " Voluntary Transactions," and sect. 7 — " Mistake,"
ante pp. 108, 131.

•I. 1891, s. 34 (1) ; Fi. 1876 (1906), ss. 14, 117; B. H. 1914, s. 30;
L. Is. 1886 (1914), s. 8, sch. A "indefeasible;" F. M. S. 1911, ss. 8, 28, 88.

TB. C. 1911, ss. 22 (1), 25A, 124.

SECT. 8 J FRAUD. 139

degree/' An action for recovery of land, of which the plaintiff
has been deprived by fraud, may be brought

as against the person registered as owner through fraud in which
such owner has participated in any degree, or as against a person
deriving his right or title otherwise than bona fide for value from or
through a person so registered through fraud.

A registered owner who is a " purchaser or mortgagee bona fide
for valuable consideration " is specially protected, and the register
expressly made conclusive in his favour, notwithstanding he may
have derived title from someone registered directly or indirectly
through fraud or error.

In Manitoba 8 the conclusiveness of the register is subject to a
right " to shew fraud/' and an action for recovery of land lost
through fraud may be brought, both enactments being nearly iden-
tical with those of British Columbia (supra). There is no general
enactment specially protecting purchasers, as there is in British
Columbia. There is however an enactment making notice imma-
terial, "except in the case of fraud on the part of such person," in
the case of persons " contracting or dealing with '* registered own-
ers, and differentiating notice from fraud.9

In Xew South Wales, Tasmania, Victoria, Western Australia,
New Zealand, and Jamaica,10 the register is made conclusive " ex-
cept in case of fraud," notice is made immaterial "except in case
of fraud" as in Manitoba (supra), land lost through fraud
may be recovered by action as in British Columbia and Manitoba
(supra), and purchasers are specially protected notwithstanding
the registration of a predecessor in title through fraud or error as
in British Columbia (supra).

In Trinidad-Tobago u the same four enactments occur, but in
the first (conclusiveness of register) the words excepting fraud are
omitted.

In Queensland, South Australia, and Papua,12 the four enact-
ments are found as in Xew South Wales, &c. (supra), though the
drafting and arrangement are different; in addition, the jurisdic-
tion of the courts over fraud is expressly preserved. One South
Australian enactment deserves particular attention, as stating in

•SL 1913, ss. 79, 84, 99.

•See sect. 6 — "Notice," ante p. 123.

10 N. S. W. 1900, ss. 42. 43, 124. 135 ; Tas. 1862, ss. 40, 114, 124, 126 :
V. 1915. ss. 72, 179, 244. 247; W. A. 1893. ss. 68, 134, 199, 202; N. Z.
1915, ss. 58, 59, 197, 198; J. 1888, ss. 55, 56, 135, 137.

u Tr. 1902, ss. 130, 132, 135. See ante, p. 136. and note 2.

u Q. 1861. ss. 44, 109. 123. 126. and 1877, s. 51 ; S. A. 1886. ss. 69,
186, 187. 207. 249 ; P. 1913, ss. 29, 30, 87. 144, 147.

140 CONCLUSIVENESS OF REGISTER. ' [Ch. rv.

clear language what is in all jurisdictions meant by the " exception "
of fraud : In the case of fraud

Any person defrauded shall have all rights and remedies that he
would have had if the land were not under the provisions of this
Act: provided that nothing included in this sub-section shall affect
the title of a registered proprietor who has taken bona fide for valu-
able consideration, or any person bona fide claiming through or under
him.

In Alberta and North- West Territories there are the same four
enactments, and also that preserving the jurisdiction of the courts
over fraud; so in Saskatchewan, except the enactment specially pro-
tecting purchasers against fraud.13

In the enactments as to conclusiveness of the register the excep-
tion is of " fraud wherein the owner has participated or colluded/'
and in those as to notice (in Saskatchewan and !North-West Ter-
ritories) "fraud by such persons/' There is also a difference in
these three jurisdictions as to the effect of a misdescription of par-
cels through fraud or error, the register under such circumstances
being in no case conclusive (ante, p. 135, Sect. 7 — "Mistake").

The enactments that speak of fraud simply seem to bear the
same construction as those that speak of fraud in which the regis-
tered owner is concerned.14 The fraud that is here referred to as
making the register inconclusive is the fraud of the owner, not the
person from whom he may have derived title.15 Other circum-
stances that may incidentally involve fraud are dealt with under
the heads of Mistake (Sect. 7, ante, p. 129), Forgery (Sect. 9
post), and Liability to rightful owner (Sect. 10 post).

Many cases occur in which mere notice has been held fraud, but
in most of these the person fixed with notice was not yet registered,
and in others there was an element of dishonesty in disregarding
the existence of an unregistered interest.16

In some cases notice that the interest in respect of which the
owner subsequently became registered had been acquired by the
fraud of its then owner has itself been treated as fraud,17 and this
seems right in principle.

13 Al. 1906, ss. 42, 44, 104, 106, 135, 139: Can. 1906, ss. 4, 72, 142,
144, 167, 174; Sas. 1917, ss. 59, 159, 174, 194, 205 (omitting 1909, s. 138).

14 On the general principle illustrated in John v. Dodwell <& Co. [1918]
A. C. 563, 574.

lsCullen v. Thompson (1879) 5 V. L. R. 147, 153; West Australian
Ice Co. v. Freeoorn (1904) 7 W. A. R. 22, 24; Assets Co. v. Mere Roihi
[1905] A. C. 176, 210.

16 See sect. 6 — " Notice" ante, p. 127, notes 39-42.

17 Colonial Bank v. Pie (1880) 6 V. L. R. 186; Gilbert V. Bourne
(1895) 6 Q. L. J. 271; Syndicat Lyonnais v. McGrade (1905) 36 Can.
S. C. R. 251: Robinson V. Ford (1914) 31 West. R. 13 (Sas.) ; Shetler V.
Foshay (1915) 31 West. R. 181 (Sas.).

Sect. SJ FRAUD. • 241

It will be sufficient to make a principal's registration inconclu-
sive that his agent has been guilty of fraud in acquiring the land.13
Cases of this sort approximate to cases of voluntary assurances, as
to which see Sect. 4 — " Voluntary transactions "' ante, p. 106.

The conduct that is to constitute fraud must be " actual fraud,
i.e., dishonest}- of some sort, not what is called constructive or equit-
able fraud." 19 This really sums up the result of a large number
of Australasian and Canadian cases to the same effect, and overrules
others to the contrary.20 The following passages on the Australian
and English systems respectively have been judicially approved in
Canada :

There is ... a conflict of authority on the question whether
it is " fraud " to acquire a registered title with the knowledge that
an unregistered interest in the land will thereby be defeated. On the
one hand, in New Zealand it has been held that this is fraud, in New
South Wales and Victoria the contrary has been held. On principle,
and by analogy to the general law. the view adopted in the New
Zealand cases would seem to be the preferable one."

It is consistent both with good faith and the scheme of the sys-
tem that other persons than the registered proprietor should be
known to have interests in the land not appearing on the face of
the register, and to effect registration with knowledge of the exist-
ence of such interests may be justifiable and proper. But to effect
registration with knowledge that another person is also taking steps
to effect registration in respect of the same property could hardly
under any circumstances be otherwise than dishonest and fraudu-
lent.21

In another Canadian case it is said, with reference to Aust.
Torr. Syst. 835 et seq. :

A very logical distinction is there suggested between mere know-
ledge of the existence of an unregistered interest, which may not
necessarily be hurt by the transaction attacked, and knowledge that
the effect of that transaction will be to injure or destroy that interest.
The knowledge that such will be the effect is obviously something
more than mere knowlege of the existence of that interest.*3

"Ex p. Batham (1888) 6 N. Z. R. 342: Eccles v. Hall (1894) 13
N. Z. R. 433; Carden v. GMett, ib. 457; Assets Co. v. Mere Roihi [1905]
A. C. 176, 210: Wolfson V. Oldfield (1911) 18 West. R. 449 (Man.) ; Loke
Yew V. Port Sirettenham Rubber Co. [1913] A. C. 491.

M Assets Co. v. Mere Roihi, supra. And see Loke Tew v. Port Swetten-
ham Rubber Co., supra; Butler v. Fairclough (1917) 23 C. L. R. 78.

10 See Ausrt. Torr. Syst. 834-840 ; Can. Torr. Syst. 165-174.

"Aust. Torr. Syst. 836. quoted in Independent Lumber-Co. v. Gardiner
(1910) 13 West. R. 548 (Sas.), at p. 551.

"Own. & Inc. 151. quoted in Independent Lumber Co. v. Gardiner,
supra, at p. 552. and in Coventry v. Amiable (1911) 19 West. R. 400 (Sas.).
at p. 416.

"Sydie v. Saskatchewan and Battle River Co. (1913) 25 West. R. 570
(Al.) at p. 591.

142 CONCLUSIVENESS OF REGISTER. [Ch.IV.

The difficulty lies in the demarcation of the line between know-
ledge or notice that is not to be treated as fraud, and notice that
under particular circumstances must be treated as fraud. The
question has been dealt with ante, p. 128 (Sect. 6 — "Notice"),
from the point of view of notice as not amounting to fraud, and
the cases there cited are equally relevant to the other aspect of the
question — what notice does constitute fraud.

There are of course numerous instances of conduct that amounts
to fraud apart from any question of notice. On such questions
there would appear to be no difference between the general law and
the special statutory law relating to registration of title. Some
of such instances may usefully be referred to. Thus, it is obvi-
ously fraud to obtain initial or other registration by personating
the true owner, or making false declarations as to possession of thj
land or loss of documents, &c, filling up in an unauthorized man-
ner a document signed in blank, obtaining the owner's signature to
a document other than that intended by him to be signed.24 It is
fraud for an agent or trustee to deny the trust when he knows that
the land has been registered in his own name but on behalf of his
principal.25 It is fraud for one who is agent for a purchaser to act
as agent for the vendor without disclosing the true position.26 It
may also be fraud to procure registration by a suppressio veri.27
Cases of duress and hard dealing with minors, married women, &c,
may be supported as being fraudulent and so sufficient to make the
registered title inconclusive between the parties to the transac-
tion.28

Forgery of course necessarily implies fraud. Special considera-
tions apply to forgery, which is the subject of the next Section
(Sect. 9). Cases of forgery, however, strongly illustrate the con-
clusive effect of registration of a bona fide purchaser for value from
a vendor whose registration has been procured by fraud; such a
purchaser's title may be upheld even where his vendor (the previ-
ous registered owner) has been registered by means of his own for-

24 Fotheringham v. Archer (1868) 5 W. W. & a'B. L. 95; Brady v.
Brady (1874) 8 8. A. R. 219; Cullen v. Thompson (1879) 5 V. L. R. 147;
Anderson v. Davy (1882) 1 N. Z. S. C. 302; Ogle v. Aedy (1887) 13 V. L.
R. 461 ; Gilbert v. Bourne (1895) 6 Q. L. J. 271 ; Tolley & Co. v. Byrne
(1902) 28 V. L. R. 95.

25 Kissick v. Black (1892) 10 N. Z. R. 519; Loke Yew v. Port Swet-
tenham Rubber Co. [1913] A. C. 491, 504; In re Lang Estate [1919] 1
W. W. R. 651 (Sas.).

M Wolf son v. Oldfield (1911) 18 West. R. 449 (Man.).

"Saunders v. Cabot (1885) 4 N..Z. C. A. 19; Bell v. Beckman (1889)
10 N. S. W. Eq. 251; Fish v. Bryce (1909) 10 West. R. 616 (Sas.).

"See Kolp v. Hunter (1911) 19 West. R. 709 (Sas.), observed upon in
Can. Torr. Syst. 170.

Sect. 9] FORGERY, dc. 143

gery — that is, has been himself the forger and not merely the vic-
tim of another person's forgery.29

There may be a distinction between fraud for the purpose of
initial registration — that is, before the land is actually on the reg-
ister, and fraud in connexion with land after it has been registered ;
in the former case the statutory differentiation between notice and
fraud might not apply.30

There may be less difficulty in setting aside a completed trans-
action than if the land were held under the ordinary law, and it has
been said that something less than actual fraud may be sufficient in
the case of registered land.31

SECTION 9 FORGED AND INVALID INSTRUMENTS.

Forgery may be a particular instance of fraud, and on that foot-
ing is referred to in the preceding Section (Sect. 8). But forgery
has other results, independently of any want of bona fides in the
person who takes under a forged instrument. From this point of
view there is no distinction between instruments that are actual
forgeries, and those that are invalid as not being what they purport
to be with regard to the land concerned.1

Forgery is only referred to expressly in the statutes of two jur-
isdictions— Ireland and South Australia, the necessity for a " genu-
ine " registrable instrument only in two — Fiji and Federated Ma-
lay States, and invalid execution of instruments only in one —
South Australia. In Ireland 2 an owner or incumbrancer is en-
titled to indemnity for loss through entries on the register being
obtained by " forgery or fraud, or " mistakes in the registry. In
Fiji and Federated Malay States3 the register is conclusive in
favour of " any purchaser of land upon a genuine transfer or trans-
mission by the registered proprietor thereof," which seems to ex-
clude both forgery and other kinds of invalid execution,4 as in
South Australia.

29 Anderson v. Davy (1882) 1 N. Z. S. C. 302; Fawkes v. Att.-Gen.
(1903) 6 O. L. R. 490; Fialowski v FialowsU (1911) 19 West R. 644
(Al.) : Brown v. Broughton (1915) 31 West. R. 583 (Man.). These cases
illustrate the case put at p. 257 of Gibbs v. Messer [1891] A. C. 248.

30 Saunders v. Cabot (1885) 4 N. Z. C. A. 19.

31 Anderson v. Morgan [1917] 2 W.. W. R. 969 (Al.).
*See Messer v. Gibbs (1887) 13 V. L. R. at p. 870.

2 1. 1891, s. 93.

3Fi. 1876 (1906). s. 14; F. M. S. 1911, s. 8.

* See Dim Pang Geok v. Sokalingam Chetty (1907) Innes F. M. S.
90. 93. where stress is laid on the word "genuine." In Gibbs v. Messer
[1891] A. C. 248. 258, the necessity for registration of a "genuine deed"
is insisted on.

144 CONCLUSIVENESS OF REGISTER. [Ch. iv.

Iii the South Australian statutes 5 forgery is kept distinct from
fraud, but classed with other invalidities in the execution of instru-
ments, and the register is made inconclusive

in the case of a certificate or other instrument of title obtained by
forgery, or by means of an insufficient power of attorney, or from a
person under some legal disability, in which case the certificate or
other instrument of title shall be void : provided that the title of a
registered proprietor who has taken bona fide for valuable considera-
tion shall not be affected by reason that a certificate or other instru-
ment of title was obtained by any person through whom he claims
title from a person under disability, or by any of the means aforesaid.

With respect to the effect of forgery on the conclusiveness of the
register, it will be found that in jurisdictions other than South
Australia the law has been settled by the courts to the same effect
as declared by the enactment above quoted, and it seems probable
that this enactment lays down a rule, both as to forgery and as to
other kinds of invalid execution, which will hold good in every
other jurisdiction.

The question of -forged documents as affecting the title of an
applicant for initial registration hardly arises. 'Such a forgery is
on the same footing as any other defect in the chain of title sub-
mitted for examination at the registry, and in the event of the
forgery not being detected and the land being placed on the regis-
ter, the registered owner's title to the land itself will not be assail-
able (in most jurisdictions and assuming his bona fides) merely
by reason of the forgery;6 in England, Ireland, and Ontario the
case may be different. The registered owner may be liable to
make pecuniary compensation to the true owner (Sect. 10, post),
except possibly in the three jurisdictions just mentioned, but he
can hold the land, and if he transfers to a purchaser the register
will be conclusive in favour of the latter.7

The question of the effect of forgery is chiefly important in its
relation 'to transactions subsequent to initial registration. Where
the registered owner has himself forged the instrument on the faith
of which registration has been effected, the case is one of fraud,
and the forgery is only a circumstance. Other considerations apply
where there is no fraud in the person taking the interest, but his
vendor, mortgagor, &c, has given him an instrument purporting
to be registrable which is forged or otherwise invalid. The rule as

SS. A. 1886, s. 69 (2).

"Coleman v. Riria Puwhanga (1886) 4 N. Z. S. C. 230. The position
of a first registered owner with a defective title is referred to in sect. 4—
" Voluntary Transactions," ante p. 109.

7 See some of the cases in the notes next following.

sect. 9] FORGERY, etc. 145

now enacted in South Australia had already been laid down by the
courts in some jurisdictions, and since the date of the enactment
quoted above has been confirmed (apart from that enactment) by
the Privy Council.8 This rule is, in effect, that a registration ob-
tained by means of a forged or otherwise invalid instrument is not
conclusive, but may become conclusive in favour of a purchaser
who takes from the improperly registered owner and himself be-
comes the registered owner.0 This conclusiveness may perhaps, in
England and Ontario, take the shape of indemnity by money pay-
ment in lieu of a title to the land itself.10

In the South Australian enactment the registered " certificate or
instrument of title " is said to be " void." But in the Privy Coun-
cil judgment though the " forged transfer or mortgage " is referred
to as " void " or " a null deed," it is said to be capable of becoming
u the root of a valid title in a bona fide purchaser," and the " regis-
tered right of the transferee or mortgagee " is not treated as void,
but only as not " indefeasible." This suggests that the registration
of the person taking under the forged instrument is better de-
scribed as " voidable," the register being inconclusive for the time
being. It would seem that only in such circumstances as occurred
in Gibbs v. Messer — where a merely fictitious name was placed on
the register — could the registration, that is the register entry and
the certificate of title, be properly described as " void " and incap-
able of becoming " the root of a valid title." The position of a
person improperly placed on the register — even by means of an
instrument forged by himself — seems to be closely analogous to
that of one to whom the legal estate in unregistered land is actually
conveyed by means of gross fraud; it would be possible for an in-
nocent purchaser to get in such a legal estate and successfully hold
it under the general law. Eegistration is, in a system of registra-
tion of title, to be regarded as the equivalent of getting in the legal
estate in unregistered land, and instruments of transfer, mort-
gage, &c, are to be regarded as authorities directed to the custodian

'Gibbs v. Messer [1891] A. C. 248. Earlier cases to the same effect
are: Brady v. Brady (1874) 8 S. A. R. 219; Ex p. Davy (1888) 6 N. Z. R.
760. A Victorian case to the contrary must be considered as overruled :
O'Connor v. O'Connor (18871 9 Aust. L. T. 117.

• Katene Te Whmkarnr* v. Public Trustee (1893) 12 X. Z. R. 651. 661:
Fairkes v. Att.-Gen. (1903) 6 O. L. R. 490: Att.-Gen. v. Odell [1906] 2
Ck 47: Lim Pang Geok v. Sokalingam Chetty (1907) Innes F. M. S. 90.
As to purchaser's title: Bailey v. Cribb (1884) 2 Q. L. J. 42; Russell v.
Registrar-General (1906) 26 N. Z. R. 1223; Fialotcski v. Fialowski (1911)
10 West. R. 644 (Al.i ; Broim v. Broughton (1914) 31 West. R. 583
(Man.).

"Eng. 1897. s. 7 (2) ; On. 1914. s. 124 (7> ; Own. & Inc. 262.

B.T.L. — 10

146 CONCLUSIVENESS OF REGISTER. [Ch. IV.

of the register authorizing him to alter the register in terms of the
authority produced.11 This seems an additional reason for regard-
ing the registration effected on the faith of a forged or invalid in-
strument as merely voidable and inconclusive, not void. A dif-
ferent view has been taken in New Zealand, the forged instrument
and the registration effected on the faith of it being held bad for
fraud on the part of the transferor, &c. — in cases where the trans-
feree is innocent — and the title of any subsequent purchaser being
held to depend on the doctrine of estoppel.12 This does not seem
to be either a necessary or satisfactory theory.

The invalidity constituted by execution of an instrument under
" an insufficient power of attorney " seems only to be illustrated in
one reported case, where the register was held to be conclusive, but
this case must be considered as overruled by Gibbs v. Messer, since
no purchaser had intervened.13

The execution of instruments by " a person under some legal
disability " seems to refer to cases of personal disability, such as
infancy or lunacy,14 but not mere inability to deal with the property
by reason of some statute or contract. It is the want of genuine-
ness in the instrument and not the absence of right to deal with
the property that makes the registration inconclusive even though
the person registered on the faith of the instrument have no notice
of the invalidity. Thus, a convict's transfer may be good, and the
register conclusive in favour of a purchaser without notice.15 And
a transfer by a lessee in the face of a covenant not to assign might
result in the registered transferee having a conclusive title.16

11 Bailey v. Cribb, supra; Macindoe v. Wehrle (1913) 13 S. R. (N. S.
W.) 500. In Arnot v. Peterson (1912) 21 West. R. 153 (Al.), a transfer
is referred to as " a mere order to the registrar." And see sect. 7 —
" Unregistered Transactions " ante, p. 117. The principle is that stated
with respect to a stock register in Sheffield Corp. v. Barclay [1905] A. C.
392, 403. As to the practical encroachments on this theory of executed
instruments, see Aust. Torr. Syst. 902, 905.

12 Ex p. Davy (1888) 6 N. Z. R. 760.

nMagor v. Donald (1887) 13 V. L. R. 255. This case is not on the
same footing as Coleman v. Riria Puwlianga and Fotheringham v. Archer
(supra) ; these were cases (in the latter as to the nominee) of initial reg-
istration on a bad title, and are consequently covered by Assets Co. v.
Mere Roihi £1905] A. C. 176. As to the distinction between initial and
subsequent registration, see also Att.-Gen. v. Odell [1906] 2 Ch. 47, 75-77,
82. As to powers of attorney, see Aust. Torr. Syst. 913, 914 ; Own. & Inc.
184.

"See Ex p. Cameron (1894) 15 N. S. W. 139; Ex p. Dettman (1918)
1 S. S. R. (N.S.W.) 545.

15 Paddington (Borough) v. Marsh (1893) 14 N. S. W. Eq. 296;
Barham v. Hoggins (1909) 6 Tas. R. 6.

"McEacham v. Colton [1902] A. C. 104.

Sect. 10] LIABILITY FOR INDEMNITY. 147

SECTION 10 LIABILITY TO RIGHTFUL OWNER FOR VALUE OF LAND.

In nineteen of the jurisdictions the registered owner, although
he may be able to vouch his registered title as a conclusive answer
to any claim by way of action to recover the land or interest in land
which stands on the register as his, may nevertheless under some
circumstances be compelled to pay to the claimant the money value
of the property. This liability is not put forward in the statutes
as a formal exception to the conclusiveness of the register, but it
seems to constitute an exception substantially. The enactments
relating to the liability for pecuniary compensation are grouped
with the enactments relating to indemnity from State funds for loss
of land through the conclusiveness of the register as against the
rightful owner, and contemplate chiefly cases where the defendant
in the action is not the registered owner at the time though re-
sponsible for the loss. The registered owner himself may however
sometimes be liable when the land cannot be recovered from him,
and his liability for damages or compensation is distinct from the
liability of the registrar as representing State funds.

There are three jurisdictions in which no provision is made by
the statutes for any compensation being recoverable from the per-
son who has by mistake been placed on the register with a conclu-
sive title: Fiji, British Honduras, Federated Malay States. It
seems possible, however, that an action might lie for wrongful reg-
istration as a tort in these jurisdictions, notwithstanding the silence
of the statutes.1 These same three jurisdictions are also without any
provision for payment of indemnity out of State funds to persons
who suffer loss through the register being conclusive against them;
and there appears to be no principle of law on which any compen-
sation could be recovered, except as against an individual owner or
official of the registry.2

In three of the nineteen jurisdictions in which damages or
compensation are recoverable — England, Ireland, Xew Zealand 3 —
the registered owner is only liable indirectly to make good any loss
suffered through registration. The liability only arises when in-
demnity or compensation has been paid out of State funds to a per-
son injured by loss of land, and the amount of such a payment may

1See Aust. Torr. Syst. 850. notes 75-77; Cox v. Bourne (1897) 8
Q. L. J. 66: Ontario Industrial Co. v. Lindsay (1884) 3 O. R. 66 ; Green v.
Ponton (1885) 8 O. R. 475.

* In two of these jurisdictions — Fiji and Federated Malay States — the
registry officers (as in other jurisdictions) are not individually liable for
official'acts done bona fide: Fi. 1876 (1906), s. 120; F. M. S. 1911, s. 89.

*Eng. 1897, s. 7 (6) ; I. 1891, s. 93 (5) ; X. Z. 1915, ss. 190-192, 198.

148 CONCLUSIVENESS OF REGISTER. [Ch. iv.

be recovered by the registrar on behalf of the Crown from the per-
son responsible for the loss. The exact scope of the liability of the
registered owner depends therefore upon the right to indemnity or
compensation which the statutes confer upon the owner who loses
his property.

The measure of the amount recoverable would of course be the
sum paid out for indemnity or compensation. In none of the
three statutes is any time limit expressly set to the action by the
registrar, though there is a time limit in England, Ireland and
New Zealand for the proceedings to recover indemnity or compen-
sation in the first instance.

Leeward Islands 4 differs from all other jurisdictions. The
general rule is that the registered owner is only liable indirectly,
as in England, Ireland, and New Zealand, and after damages have
been recovered from the Crown for the wrongful registration: but
if registration is effected with less than fully warranted title, or if
such a registration is subsequently made fully warranted (or in-
defeasible), the registered owner "his executors and administrators
shall be liable to pay compensation " to any person who " is deprived
of any estate or right in, to, or over the land or any money charged
on the land." No time limit is mentioned in either case. Where
the liability is imposed directly on the registered owner the measure
of compensation would be the value of the land or amount of loss
suffered, as in other jurisdictions where a direct liability is pro-
vided for.

In the remaining sixteen jurisdictions — the seven Canadian,
seven Australian, Trinidad-Tobago, Jamaica — the relevant enact-
ments are fairly uniform, but contain some differences that must
be pointed out. (The question of indirect liability after payment
out of State funds is dealt with further on.) Queensland and Pa-
pua 5 stand together, and differ from the others in making damages
recoverable from " the person who derived benefit from " the wrong-
ful registration; in other jurisdictions the liability is placed on
the person who is responsible for the -wrongful registration being
effected. In Papua there is no provision for initial registration by
voluntary application, and only wrongful registration subsequent
to initial registration is contemplated.

In nine jurisdictions — Alberta, North-West Territories, New
South Wales, South Australia, Tasmania, Victoria, Western Aus-

4L. Is. 1886 (1914)1 ss. 19, 134.

B Q. 1861, ss. 21, 126. 127 ; P. 1913, ss. 147, 151. 152.

Sect. 10J LIABILITY FOR INDEMNITY. 149

tralia, Trinidad-Tobago, Jamaica 6 — it is specially enacted that the
registered owner who ma}- be liable for damages to the rightful
owner is (except in cases of fraud or misdescription7) released
from this liability on the land being transferred bona fide for value
to another person; in other jurisdictions the transfer of the land
seems to make no difference, and the transferor remains personally
liable, if he were already liable. In Alberta and Xorth-West Ter-
ritories there is no mention of a time limit for these actions against
an owner, though there is a limit for other actions. Another
group of four — South Australia, Victoria, Western Australia, Ja-
maica— differs with respect to the measure of damages; the value
of buildings, &c, erected subsequently to the plaintiff having lost
his land is to be excluded from the amount of damages recover-
able. This provision, however, seems to be implied in the statutes
of other jurisdictions.

In British Columbia — and the enactments in Manitoba and
Saskatchewan seem to have the same meaning 8 — the cause of action
does not include, as in other jurisdictions, the mere registration of
a person who is not the rightful owner, but the registration must
have involved " fraud or misrepresentation " (in British Colum-
bia), or " fraud or wrongful act " (in Manitoba and Saskatchewan).
In these jurisdictions the person by means of whose fraud, &c, the
wrongful registration was effected is the person liable in an action.
In Manitoba and Saskatchewan the procedure is peculiar in that in
everjr such action the registrar is a necessary defendant.

In Ontario 9 no time limit is set for the bringing of an action.
The cause of action includes any initial registration of a person
who is not the rightful owner, but other registrations only if
effected " through fraud."

In all sixteen jurisdictions the defence of bona fide purchase
for value from a predecessor in title registered wrongfully by any
means is, either expressly or by necessary implication, as available
in an action for damages or compensation as in an action for re-
covery of the land itself.10 In Saskatchewan, Alberta, and North-
West Territories, such a defence is no more available in one action

•Al. 1906. ss. 105. 106. 110, 111; Can. 1906. ss. 143, 144. 149-151:
X. S. W. 1900, ss. 126. 130-132, 135 : S. A. 1S86. ss. 203. 204. 207. 209. 215-
219: Tas. 1X62. ss. 125. 126. 130. 132: V. 1915. ss. 240. 241. 246. 247. 256;
W. A. IS!).;, n. 105. 196. 201. 202. 211: Tr. 1902. ss. 134, 135. 13!). 140:
,T. 1888. ss. 136. 137. 141. 142.

7 A case turning on this exception is Ilassett v. Colonial Hank (1881)
7 V. I.. R. L. 380.

•B. C. 1911. ss. 12.!. 124. 130. 131; M. 1913. ss. 154. 158; Sas. 1917.
ss. 160-162. s On. 1914. s. 124.

10 See sect. 7 — 'Mistake" ante, pp. 132. 135. and references in notes.

150 CONCLUSIVENESS OF REGISTER. [Ch. iv.

than in the other where a mistake by way of misdescription of par-
cels has been made, the register being alike inconclusive in either
case; the land itself being recoverable in these three jurisdictions,
the action for damages is not required where misdescription has
occurred.

In eight of the sixteen jurisdictions — New South Wales, Queens-
land, South Australia, Tasmania, Victoria, Western Australia,
Trinidad-Tobago, Jamaica — the further defence is available that
the plaintiff had notice of the initial registration and omitted to
protect himself by a caveat — just as in an action for recovery of the
land itself; in South Australia this defence is available in all cases
of loss of land, whether by initial registration or otherwise. There
are enactments of a similar kind (covering all cases of loss), in
Alberta and North- West Territories. In British Columbia, Mani-
toba, and Saskatchewan,11 the corresponding enactments refer only
to actions against the registrar.

Where a time limit is mentioned, the action must be brought
within six years of the date of deprivation, with an allowance for
disabilities, except in Manitoba and South Australia; in Manitoba
the limit is ten years and a period for disabilities, in iSouth Aus-
tralia twenty years in all. In South Australia the time runs from
the date of the cause of action accruing, though this is the same
thing as the date of deprivation.12

In the statutes of these sixteen jurisdictions — Canada (7), Aus-
tralia (7), Trinidad-Tobago, Jamaica — the above provisions are
enacted as from the point of view of the person seeking a remedy
for wrongful registration of another, and include in their scope not
only registered owners for the time being, but others who are not
then on the register. From this point of view these provisions
may be very shortly summarized, subject to all differences men-
tioned, as follows : Where the rightful owner of an interest in land
has been deprived of his property through fraud, wrongful regis-
tration of another person, or mistakes in the register, and cannot
recover it in specie by reason of the conclusiveness of the register
against him, the registered owner may be directly liable to the
rightful owner in an action to recover the value of the property,
unless he can shew either that he is a bona fide purchaser for value
or that the plaintiff has knowingly neglected to protect himself by
caveat; in some cases the registered owner may, after parting with
the land and ceasing to be on the register, remain liable; the

11 B. C. 1911, s. 134; M. 1913, s. 161; Sas. 1917, s. 169.
12 See Spencer v. Registrar of Titles [1906] A. C. 503, 510. [1908] A.
C. 235, 240; Finucane v. Registrar of Titles [1903] S. R. Q. 75, 95.

Sect. 10] LIABILITY FOR INDEMNITY. 15 ±

action must usually be brought within sis years of the cause of
action accruing.

Most of the questions that might arise under these enactments
in the sixteen jurisdictions are also capable of being raised under
the enactments that deal with actions for damages or compensa-
tion against the registrar as representing State funds, and some
have arisen in cases under the latter. Such cases relate to the
cause of action, the measure of damages, and the time limit for the
action. The principles on these points laid down in cases of ac-
tions against the registrar will be found applicable to actions
brought against the registered owner by the rightful owner of the
land or interest lost through the register being conclusive with
respect to the land itself. There seem to be only four reported
cases of an action against the registered owner for damages; in
one the title of the defendant was upheld, and the action failed,13
in one the claim as for wrongful registration was only an alterna-
tive claim introduced by amendment,14 in two others the reg-
istrar was a co-defendant and the claim was substantially against
State funds.15 There is also one reported case where an action was
brought against a person who had been registered as owner but had
transferred to a purchaser; the case being one of misdescription,
the defendant was held liable for the plaintiff's loss notwithstand-
ing that the defendant was no longer on the register.16

In four jurisdictions — Xew South Wales, Queensland, Papua,
Trinidad- Tobago 1T — the circumstance that buildings have been
erected by a registered owner, against whom an action to recover
the land is subsequently brought by the rightful owner, may result
in the latter recovering merely the value of the land without the
buildings and not the land itself. This is referred to in Sect. 7 —
" Mistake " ante, p. 135.

With respect to the liability of a registered owner to an action
by the registrar to recover a sum of money paid out of State funds
to a person who had been deprived of an interest in land, such ac-
tions must necessarily be rare, and there appears to be no reported
case on the subject. The cause of action is of course the payment
out of State funds by way of indemnity to the person injured by
the wrongful registration, and the measure of damages is the

13 Heath v. Commercial Build. Co. (1898) 19 N. S. W. 246.

"Monaohan v. Gleeson (1887) 13 V. L. R. 384.

vCbx v. Bourne (1897) 8 Q. L. J. 66; Morris v. Bentley (1895) 2
Terr. R. 253.

"Hassett v. Colonial Bank (1881) 7 V. L. R. 380.

17 X. S. W. 1900, s. 125 ; Q. 1877. s. 47 ; P. 1913. s. 145 ; Tr. 1902, s.
133.

152 CONCLUSIVENESS OF REGISTER. [Ch. IV.

amount so paid. In no jurisdiction of the sixteen do the statutes
mention any time limit for the proceedings by the registrar. Ap-
parently the ordinary limitation Acts would apply, the amount to
be recovered being regarded as a debt due to the Crown, and one
question would be whether the Crown is bound by those limitation
Acts.

The subject of recovery of indemnity paid out of State funds
from the person who has caused the loss is further referred to in
Chap. X — "State indemnity for loss," post.

Sect. 1] GENERALLY. 153

CHAPTER V— EQUITABLE ESTATES AXD IXTERESTS.

SECTIOX 1 — EQUITABLE IXTERESTS GENERALLY.

For the most part the legal estate and legal interests have been
replaced, under registration of title, by registered ownership and
interests. As pointed out in Chap. IV ante, there are still some
interests in registered land that are strictly legal and yet are not
registered. But for the most part interests that are not registered
are in the same relation to any conflicting registered interest as
equitable interests under ordinary law are to legal interests. With
a few exceptions, unregistered interests are treated as equitable
interests, and usually called " equitable." The distinction between
equitable interests in registered and in unregistered land is, that
in the case of registered land they can be protected much more
effectually than is always possible where the land is unregistered.
This protection is brought about by the existence of the equitable
interest being stated in some way on the face of the register. Such
a statement, though it may be a substantive entry on the register,
does not constitute the equitable interest a registered interest. In
the absence of any such protection, equitable interests are more
likely to l>c defeated than they would be under the ordinary law.

Notwithstanding the division of equitable interests into pro-
tected and unprotected, they still form a single class juridically.
Registration of title has not changed the fundamental principles
of the common law and equity with regard to rights of property,
but merely the methods of evidencing and enforcing these rights.1
The general rule as to all these equitable interests is that the}* are
of the same value in themselves, and may be dealt with in the same
way. as equitable interests in unregistered land.2 The doctrine
that " the right to call for a conveyance of the land is an equit-
able interest or equitable estate " applies, in fact, to registered

1 The theoretical aspects of the changes made are dealt with in Aust.
Torr. Syst. 765-778. and 77S-804 ; Own. & Inc. 86-101. Some of the views
expressed in those passages require modification in the light of more recent
cases. On the whole these views have been approved as applicable in most
of the Canadian jurisdictions: see Williams v. Box (1909) 13 West R.
451 (Man.) ; Smith v. National Trust Co. (1912) 45 Can. S. C. R. 618;
Re Anderton (1908) 8 West. R. 319 (Al.) : Thompson v. Yockney (1912 1
22 West. R. 863 (Man.).

'Barry v. Heider (1914) 19 C. L. R. 197: Tietyens v. Cox (1917) 17
S. R. (N. S. W.) 48: Butler v. Fairclough (1917) 23 C. L. R. 78.

154 EQUITABLE INTERESTS. [Ch. v.

land as well as other land.3 The right to call for a conveyance
becomes a right to be registered in respect of a certain interest; in
each case the right — to a conveyance or to registration — is only an
actual right (as distinguished from a mere claim) if specific per-
formance would be granted by a court of equity.4 The right to
registration as the statutory method of assurance may therefore
be called an " equitable interest or equitable estate," since " that
right according to accepted rules of equity is an estate or interest
in the land." 5 But this general doctrine does not necessarily
imply that an unregistered or equitable interest is of precisely the
same value in all jurisdictions.

" Equitable estates and interests are rights in personam, but
they have a misleading resemblance to rights in rem." 6 In the
case of registered land the equitable estate is much less like a right
in rem than under the ordinary law of unregistered land. Its real
nature, as a right in personam, is more clearly seen in the case of
registered land. When this is once recognized, there is less occa-
sion to differentiate the equitable estate in registered land by call-
ing it a " right " as distinguished from an " estate " ; the tendency
of the courts at present being against any such differentiation, an
undue insistence on it is liable to introduce confusion.7

The equitable doctrines by means of which the equitable estate
of ordinary law has principally been built up are Specific Perform-
ance and Injunction. These play an equally important part in
connexion with registered land. The injunction is indeed even
more important than in the case of other land,8 and its principle
has been extended by applying it to the system of caveats or cau-
tions and other restrictive entries on the register.

That the fundamental principles of equity with respect to
enforcing assurances of the legal ownership are not affected by
registration of title, is shewn by the large number of cases in the
courts in which trusts — and particularly resulting trusts — are

3 London and S. W. Ry. v. Gomm (1882) 20 Ch. D. 562, 581: Re
Glagstone and Hammond (1898) 28 O. R. 409.

4 Howard v. Miller [1915] A. C. 318, 326.

5 Barry v. H eider, supra. The view expressed in Aust. Torr. Syst. 784
must be corrected.

6Mait. Eq. 122; and see p. 112.

T The observations in Aust. Torr. Syst. 772, 784, require modification
from this point of view, particularly having regard to the case of Barry v.
Heider, supra. Mr. Niblack's criticism is also pertinent, when he says : " In
practice an unregistered equitable right in the nature of an incumbrance on
land is quite as dangerous and burdensome as an unregistered equitable
estate in land"; Analysis of Torr Syst., p. 251. "Equitable owner" is
mentioned in V. 1915, ss. 105-107.

8McEacham v. Colton [1902] A. C. 104. 107; Davis v. Wekey (1877) 3
V. R. 1; Clarke v. Roe (1899) 1 W. A. R. 123, 128.

Sect. 2] TRUSTS. 155

enforced against registered owners of land, without any special
reference to the fact of the land being on the register.9 Parol
evidence may be given of a trust.10

SECTION 2 TRUSTS, THEIR PROTECTION AND ENFORCEMENT.

The actual trusts referred to most prominently in the statutes
are the two typical classes that are brought into existence (1) by
way of gift or settlement, and (2) upon death or bankruptcy.
These types of trust are expressly recognized by the registration
statutes in the majority of jurisdictions, but the method of recog-
nition is not uniform.

In British Honduras x the statute contains no express reference
at all to trusts, though caveats are mentioned, and it is contem-
plated that all " equitable estates and interests " shall be protected
by caveat.

In British Columbia and Leeward Islands - the references to
trusts are few. Xotification of the existence of a trust may be
made on the face of the register, but not the particulars of the
trust, these being contained in a separate instrument which (in
Leeward Islands) may be registered in the deeds registry. Xo
special reference to trusts as arising by settlement, bankruptcy,
&c, is made in these statutes. In British Columbia, when the reg-
ister itself shews the existence of a trust, the land cannot be dealt
with otherwise than in accordance with the provisions of the trust
instrument. In Leeward Islands a caveat would have to be placed
on the register to prevent improper dealings with the land : the
notification of the trust is made by adding to the names of the
transferees the words " as trustees," either " with " or " without "
" survivorship." In British Columbia " in trust " or " upon con-
dition," &c, may be placed on the register ; if " joint owners " is
the expression used, and the trust instrument provides for no trans-
action being carried out by less than a certain number of the own-
ers, this has the effect of a " no survivorship " entry.

In Ireland 3 also the references to trusts are few. A registered
owner may hold the land as trustee. A " trust for securing money "
may be registered as a burden on the land. Xotice of trusts is not
to be entered on the register, but provision is made for the entry of
cautions and inhibitions as restraints on alienation in the case of
settled land and otherwise, and the names of the trustees of the

» Illustrations are : Payne v. McDonald (1908) 6 C. L. R. 208 ; Per-
petual Executors Assoc, v. Wright (1917) 23 C. L. R. 185.

wCadd v. Cadd (1909) 9 C. L. R. 171; In re Lang Estate [1919] 1
W. W. R. 651 (Sas.). * B. H. 1914, s. 40, sch. D.

*B. C. 1911. ss. 50, 56. 57. 62. and 1915. s. 10; L. Is. 1886 (19141, s.
26. • »I. 1891, ss. 30, 45, 63. 64, 69-71.

156 EQUITABLE INTERESTS. [Ch. V.

settlement may in the case of settled land be entered separately on
the register. When two or more persons are registered as owners,
an entry may be made to the effect that on the number being re-
duced no registered disposition may be made except under order
of court — the " no survivorship " entry.

England and Ontario 4 stand together, the chief difference be-
ing that the Ontario statute has no special concern with settled
land, whilst in England (1897, s. 6) express provision is made for
the initial registration of settled land ; the registered owner can deal
with purchasers without the latter being hampered by notice of the
trusts of the settlement, which may be filed for reference. On initial
registration the owner may be a person " not entitled for his own
benefit.''" Persons registered in place of deceased or (in England)
bankrupt OAvners hold the land subject to the beneficial rights of
others, but have the rights of beneficial owners for the purpose of
dealing with the land; bankruptcy and insolvency are not men-
tioned in the Ontario statutes.5 In Ontario notice of trusts is not
to be placed on the register, and in England reference to trusts is
to be excluded as far as possible. The Trustee Acts apply to reg-
istered land. Without expressly referring to trusts the enactments
providing for cautions, inhibitions, and restrictions necessarily
imply that these can be used for the protection of trusts.6 Upon
the registration of two or more persons as owners, entries may be
made preventing any disposition by less than a certain number 7 —
the " no survivorship " entry.

Five of the Australian jurisdictions may be taken together —
New South Wales, South Australia, Tasmania, Victoria, Western
Australia.8 The references to trusts are much more numerous than
in the jurisdictions previously noticed. The enactments are all
substantially to the same effect, the chief differences being these:
In Victoria and Western Australia the word " trustee " is less fre-
quently used ;in South Australia the registered title is always sub-

4 Eng. 1875, ss. 7, 46, 83 ; 1897, ss. 6, 14. On. 1914, 88. 10, 18, 59, 95,
!)7. 100. Settlements, death, and bankruptcy are also referred to in Eng.
1903-8 Rules.

5 Transfer to creditors' assignee is the subject of a rule: On. 1911
Rules, r. 38.

•Eng. 1875. ss. 49. 5.1-59: 1903-8 Rules, rr. 22(5-242. On. 1914, ss.
68, 72-79. See Own. & Inc. 110, 111, 140, 141.

7 Eng. 1875, s. S3 (am.) ; 1903-8 Rules, rr. 224, 225. On. 1914, s. 97.

8 N. S. W. 1900. ss. 43, 52, 72, 82-S7, 95-97. 133 ; S. A. 1886, ss. 71, 72,
161-169, 180, 184-187, 191, 211 ; Tas. 1862, ss. 64, 66-69, 81, 82, 112-114, 133.
and 1886, s. 3; V. 1915, ss. 17, 55, 56. 64. 122. 179, 183, 227. 241, 265.
270, 275; W. A. 1893, ss. 55, 61. 83. .134, 137, 182, 196. 220, 229, 234.
Some points of difference with res|)ect to caveats in these enactments are
referred to further on.

Sect. 2] TRUSTS. [5;

ject to " the rights of a cestui que trust, where the registered pro-
prietor is a trustee, whether the trust shall be express, implied, or
constructive," except " against the title of a registered proprietor
taking bona fide for valuable consideration" (s. 71). The princi-
pal provisions are to the following effect: Purchasers are not
affected merely by notice of a trust being in existence; caveat may
be entered when land is transferred to be held by the transferee as
a trustee; notice of a trust is not (as a rule 9) to be entered on the
register, but the trust instrument may be filed and protected by
caveat — in Xew South Wales the entry of an official caveat being
compulsory when such a trust instrument is filed; a trustee regis-
tered as owner must allow his name to be used in legal proceedings
by the beneficiary; representatives of deceased or bankrupt owners
hold the land on trust for those beneficially entitled, but otherwise
are deemed to be beneficial owners ; though a mortgage debt is made
transferable at law, any trusts upon which it is held will be en-
forced; no indemnity from State funds is payable to beneficiaries
for loss through breach of trust by a registered owner. When reg-
istered co-owners are entitled jointly, the " no survivorship " entry
is made; this entry is usually sufficient indication of the existence
of a trust, even though (as in Victoria and Western Australia) the
statutory direction for its being placed on the register does not use
the words " trust " or " trustee." 10 In Tasmania the registrar
may be nominated as one of the trustees to whom land is trans-
ferred (s. 66).

Queensland and Papua ll differ in one respect from the other
five Australian jurisdictions, whilst otherwise in substantial agree-
ment with them. Land may be transferred to trustees " as trus-
tees," and the trusts at the same time declared, by an instrument
of transfer in statutory form — called a " nomination of trustees " —
which is registered.12 The trusts thus in one sense plainly appear
on the face of the register. The trusts may however be declared
by a separate instrument.13 Land might also, apparently, be vested
in and held by trustees as in other jurisdictions, without using the

• The principal exception seems to be in the case of trusts expressly
stated in the body of a erant from tbe Crown: see In re Edwards (1908)
10 W. A. R. 144. under W. A. 1893. s. 55.

"/« re Tararua Club (1908) 27 X. Z. R. 928. This applies equally in
other Australasian jurisdictions. All the statutes that recognize trusts,
except that of Manitoba, provide for " no survivorship " entry.

11 Q. 1861. ss. 42. 06. 77-81. 83, 84. 86. 89 ; P. 1913. ss. 38. 63. 69. 84-86.
88-93. 100. 141 (3).

12 See Aust. Tnrr. Syst. 975. as to the construction of the statutory
" nomination of trustees."

"An illustration is Commr. of Stamps v. Wirnholt (1915) 20 C. L. R.
531.

158 EQUITABLE INTERESTS. [Ch. v.

words " as trustees/' and either with or without a " no survivor-
ship " entry.14

New Zealand 1B does not differ materially from the five Aus-
tralian jurisdictions above mentioned, though the use of the word
" trustee " is avoided somewhat, as in Victoria and Western Aus-
tralia, even in connexion with the " no survivorship " entry.16 The
Trustee Acts are not mentioned, but are sufficiently indicated by
the reference to vesting orders in s. 92 of the present statute. The
registrar may be nominated as one of the trustees to whom land is
transferred (s. 135).

In Fiji 17 no provision is made for indemnity out of State funds,
and there is therefore no reference to beneficiaries' loss through
breach of trust by a registered owner. There is also no express
reference to purchasers not being affected by notice of a trust.18
Transfer to trustees is protected by the words " as trustees " being
placed on the register, either with or without the entry of a caveat.
The Trustee Acts are not mentioned, but by s. . 92 the Court has
the power of making vesting orders. In other respects the provi-
sions relating to trusts accord with those in the five Australian jur-
isdictions (New South Wales, &c.) above mentioned, and in par-
ticular the " no survivorship " entry is provided for.

The Federated Malay States 10 statutes, being originally taken
from that of Fiji, agree for the most part almost word for word
with the latter, including provision for the " no survivorship "
entry. The only material difference as to trusts is the omission of
all reference to bankruptcy. Where Fi. 1876, s. 89, has " deceased
person or bankrupt," &c, F. M. S. 1911, s. 67, refers to deceased
persons only. The result is that in the Federated Malay States the
registration statute does not provide for the representative of a
bankrupt registered owner holding the land subject to any trusts

14 The power to deal with the land as beneficial owners has, with regard
to public lands in Queensland, been overridden by a later statute: Down v.
Att.-Gen. (1905), 2 C. L. R. 639, 647.

15 N. Z. 1915, ss. 90, 92, 124, 125, 130-136, 146, 154, 193, 197. The
difference between New Zealand and the Australian jurisdictions, referred
to in Aust. Torr. Syst. 993, has been removed by the enactment now con-
tained in s. 124 (2) of the present statute, under which the representatives
of deceased or bankrupt owners hold subject to equities as in most other
jurisdictions.

16 In re Tararua Club, supra, note 10.

17 Fi. 1876 (1906), ss. 20-23, 26, 48, 83, 89, 92, 93, 115.

18 Fi. 1876 (1906), s. 14, is the enactment answering to N. S. W. 1900,
s. 42, &c. Notwithstanding the difference in language, the two enactments
probably have the same general scope: see (under the corresponding Malay
States section, F. M. S. 1911, s. 8) Chang Lin v. Chong Swee Sang (1908)
Innes F. M. S. 95.

" F. M. S. 1911, ss. 10-12, 14, 35, 65, 67, 69, 70, 86. See preceding note.

Sect. 2] TRUSTS. 159

to which it was previously subject, and it has been held that such a
trust cannot always be enforced against the receiver, when regis-
tered as owner in place of an insolvent debtor.20

Trinidad-Tobago and Jamaica 21 follow substantially the five
Australian jurisdictions (Xew South "Wales, &c.) above mentioned,
including the provision for a " no survivorship " entry. In Trini-
dad-Tobago the collateral trust instrument may be registered in the
deeds registry. The Jamaica statutes do not use the word " trus-
tee " in connexion with " no survivorship/' but the entry is held,
88 in Xew Zealand, to indicate the existence of a trust.22

Saskatchewan, Alberta, and Xorth-TVest Territories 23 stand to-
gether, but differ among themselves with respect to creditors'
assignments, the provision for registering a creditors' assignee
as owner being absent from the Canada statute, though appear-
ing in the other two. Otherwise these three jurisdictions resem-
ble generally the five Australian (Xew South Wales, &c), includ-
ing provision for a " no survivorship " entry, but with the fol-
lowing differences: Trustee Acts and vesting orders are not re-
ferred to, and the prohibition against entry of trusts on the reg-
ister is more absolute; no provision is made for filing a collateral
trust instrument upon land being transferred to persons who are
to hold it as trustees; the registration of a creditors' assignee (in
vSaskatchewan and Alberta), which answers to transmission on
bankruptcy in non-Canadian jurisdictions, is not qualified by any
express provision for protection of equities, though this seems to be
sufficiently implied in Alberta. Every registration is, however,
subject to any registered " decrees, orders, or executions " affecting
the owner of the land, and the courts have full control over the
register for the purposes of rectification;24 the silence with respect
to vesting orders, &c, is not therefore of great moment. The ab-
sence of provisions for filing trust instruments, and for making a
creditors' assignee hold subject to equities to which the land was
previously subject, points to a settled policy of paying less regard

20 Chan Gun Lai v. Anderson Pole (1911) Innes F. M. S. 126. In
that case Aust. Torr. Syst. 993, was referred to with regard to New Zea-
land law, but this has now been amended as stated — note 13 ante, p. 158.

21 Tr. 1902. ss. 61. 96. 101. 110-116. 130. 132. 141 ; J. 1888. ss. 42. 4.",.
51, 56, 64. 103. 107, 108. 113. 143.

22 Dc Cordova v. Rc<ii*irar of Titles (1910) Jamaica, unreported. See
note 10 ante, p. 157.

3Sas. 1917. ss. 62. 124. 128. 146. 147. 170. 173. 194. 195: Al. 1906.
is. 17. 68. 76, 83A, 84. 121. 132. 135, 137; Can. 1906. ss. 75, 107. 121. 131.
161. 167. 168-173.

2tSas. 1917. ss. 60 (c), 73; Al. 1906. ss. 43 (e). 116: Can. 1906. s*.
73 (e). 156.

1(30 EQUITABLE INTERESTS. [Ch. V.

to the purely English law of trusts than in most other jurisdic-
tions. Such a case as occurred in the Federated Malay States
might arise in these jurisdictions25 (perhaps hardly in Alberta),
though it is unlikely that the Malay case would be held applicable.
In Alberta also the effect of entering a caveat is made equivalent
(so far as priorities are concerned) to actual registration of an
instrument.26

Manitoba 27 has some enactments not to be found in other jur-
isdictions, and is without others that are to be found in nearly
every other jurisdiction. The provisions relating to purchasers
not being affected by notice of trusts, trusts of assigned mortgage
debts, protection of unregistered interests by caveat, no compensa-
tion being payable for loss by breach of trust, and use of trustees'
names by beneficiaries — these are substantially the same as in the
five typical Australian jurisdictions (New South Wales, &c, ante,
p. 156). With regard to creditors' assignments there is an enact-
ment similar to that of Alberta; the effect of a caveat is also simi-
lar to its effect in Alberta. Every registration is subject to regis-
tered judgments, orders, lis pendens, caveats, &c. The prohibition
against the entry of trusts in general on the register is even more
absolute than in Saskatchewan and Alberta, but exceptional pro-
vision is made for the case of " an executor or administrator or
trustee under a will " ; the will is to " be deemed to be embodied
in " the register, and such an executor, administrator, or trustee
can only deal with the land in accordance with the trusts upon
which it is held. On the other hand no provision is made for a
" no survivorship " entry, nor is transfer to joint owners mentioned
in the statutes.

It appears then that in all twenty-two jurisdictions, except
British Honduras, trusts of registered land are more or less ex-
plicitly recognized, and in all except British Honduras and Mani-
toba provision is made for a " no survivorship " entry being made
on the register when land is transferred to joint owners. Mani-
toba goes further than other jurisdictions in formally recognizing
and protecting trusts. In those jurisdictions in which this recog-
nition is least formal and explicit the Xew Zealand and Jamaica
decisions 28 will be applicable — to the effect that the " no survivor-
ship " entry itself indicates the existence of a trust.

25 Chan Gun Lai v. Anderson role, supra, note 20, ante, p. 159.

26 Al. 1906. s. 97. So in Manitoba (M. 1913, s. 151). This will bo
referred to later on.

27 M. 1913, ss. 76, 78, 99, 100, 111, 129, 138, 151, 159, 167.

28 In re Tararua Club (1908) 27 N. Z. R. 928; De Cordora v. Registrar
of Titles (1910) Jamaica, unreported.

Sect. 2] TRUSTS. 16 1

The prohibition against notice of trusts being placed on the
register means no more than that particulars of a trust are not to
be the subject of a formal entry.29 But if, as may sometimes hap-
pen, the particulars of a trust do formally appear as part of the
title of the registered owner, the trust is as effectually warranted
as the rest of the registered title. Thus, the purchaser of a regis-
tered owner's interest, where the whole beneficial interest is dis-
closed on the register as being in another person, takes nothing.30

The protective entries referred to operate in two ways — by way
of notice, and as a restraint on the registered owner's powers of
alienation. Such entries as caveats, cautions, inhibitions, and re-
strictions, operate directly as a kind of statutory injunction,31 but
they also serve to give notice to anyone searching the register.
Other entries may also have the effect of preventing alienation, but
they usually operate as restraints on alienation in an indirect man-
ner, and sometimes simply serve as notice to persons proposing to
deal with the owner of the land.

The entries consisting of the words " in trust," " upon condi-
tion," &c, in British Columbia,32 and the describing a registered
owner as executor, administrator, or trustee of a will, in Mani-
toba,33 have precisely the same statutory effect as a caveat or in-
hibition forbidding alienation, since any dealing with the land
inconsistent with the provisions of the trust, &c, is not then
allowed to be registered. The deposit of the trust instrument for
reference in Xew South Wales 34 may also be said to have the same
effect as a caveat, since it is made compulsory on the registrar to
" forthwith enter a caveat forbidding the registration of any in-
strument" inconsistent with the trusts declared by the trust in-
strument. The appointment of the registrar as one of the trustees
(in Tasmania and New Zealand)35 places on him precisely the same
obligation as he would have, were a caveat entered, of seeing that
no alienation inconsistent with the trust was registered.

19 Aust. Torr. Syst. 973. This passage bas been approved in Jamaica:
De Cordova V. Registrar of Titles, supra. Australian decisions to the same
effect are: Ex p. Campbell (1888) 9 Aust. L. T. (V.) 183>, and Ex p.
Saunders (1900) 21 X. S. W. 291.

-In re Edwards (1908) 10 W. A. R. 144.

" Aust. Torr. Syst. 802. 886. 1035, 1036, 1039 ; Own. & Inc. 131. 140.
141; Can. Torr. Syst. 374. 388. 390 (where the difference between the
Australian and the Canadian caveat is pointed out) ; Barry v. H eider
(1914) 19 C. L. R. 197. 212: Pearson v. O'Brien (1912) 20 West. R. 510.
527, 528 (Man.) ; In re Registration of Caveat (1908) Innes F. M. S. 114.

" B. C. 1911, s. 50. "M. 1913, s. 76.

" X. S. W. 1900. s. 82.

■ Tas. 1862, s. 67 ; X. Z. 1915, s. 135.

K.T.L. 11

162 EQUITABLE INTERESTS. [Ch. v.

In. five jurisdictions — Queensland, Papua, Fiji, Federated Ma-
lay States, Leeward Islands 30 — the statutes authorize the addition
on the register of the words " as trustees " after the name of the
person to whom land is transferred in trust. No statutory effect
is however given to these additional words, and strictly speaking
they only operate as notice to persons dealing with the registered
owners. Practically, a wider operation is given to such an entry,
for the property is in this way earmarked as property which can-
not be touched by the creditors of the individual registered owners.
In Victoria the registrar has been held justified in refusing to
register an execution against land of which the debtor was regis-
tered owner — as " executor ;" in Saskatchewan a mortgage by an
owner registered " as administrator "3r may be unregistrable. This
principle may well be applied generally. If the result is that im-
proper dealing is prevented by refusal of registration, the entry
would have the effect of a caveat or inhibition.

In Ireland,38 the entry of the trustees' names on the register, in
the case of settled land, has no statutory effect, and it is expressly
provided that references to the settlement are not to affect anyone
with notice of the trusts.

The " no survivorship " entry is the most usual method of
shewing that the land is the subject of trust ownership. But no
statutory operation is given to the entry so long as the registered
owners remain physically competent to deal with the land and no
individual owner releases his joint interest. The entry in fact
operates merely as notice of the existence of a trust, and not as a
restraint on alienation by all the joint owners. For this reason
the entry is sometimes supplemented by an entry such as a caveat
or inhibition, by which alienation is actually restrained. But only
in seven jurisdictions is the settlor himself given express power to
enter a caveat, &c, on transferring land to trustees, viz.: New
South Wales, South Australia, Tasmania, New Zealand, Fiji, Fed-
erated Malay States, Trinidad-Tobago.39 In other jurisdictions
the onus of having such an entry made is thrown on the beneficiar-

36 Q. 1861, s. 77. sch. I.; P. 1913, s. 84, sch. 9; Fi. 1876 (1906), s.
20; F. M. S. 1911, s. 10; L. Is. 1886 (1914), s. 26.

37 Balding v. Nicholas (1893) 19 V. Ij. R. 110; Western Trust Go.
v. Olson [1918] 3 W. W. R. 811, under Sas. 1917. s. 144. In a South
Australian case the words " as administrator " appeared on the register :
Public Trustee v. Arthur (1892) 25 S. A. R. 59. The distinction between a
trust and a beneficial interest was recognized in Re Robinson (1874) 4
Q. S. C. R. 68.

34 1. 1891. s. 71.

88 N. S. W. 1900, s. 72; S. A. 1886, s. 191; Tas. 1862, s. 82; N. Z.
1915, s. 146; Fi. 1876 (1906), s. 22; F. M. S. 1911, s. 12; Tr. 1902, s. 116.

Sect. 2 J TRUSTS. ]G3

ies or the registry itself. In England, Ireland, and Ontario,40
u any person interested " ma}' apply for an inhibition. In Victoria,
Western Australia, and Jamaica 41 the registrar " may protect in
any way he may deem advisable " the rights of the beneficiaries.

There is no uniformity in the treatment of the instrument de-
claring the trusts. In six jurisdictions — Ireland, Ontario, Mani-
toba, Saskatchewan, Alberta, North- West Territories — no provision
is made for filing even a copy of the trust instrument for reference.
On the other hand, in British Columbia 42 the trust instrument it-
self is registered, though separately. In Trinidad-Tobago and
Leeward Islands 43 the trust instrument may be registered at the
deeds registry, and in Trinidad-Tobago may include unregistered
land. In Fiji and Federated Malay States 44 the trust instrument
or a copy must be filed. In South Australia 45 it may be filed for
reference, or it may be deposited at the deeds registry — though
neither course is compulsory — and may include unregistered land.
In Queensland and Papua46 the trusts may either be set out in a
schedule to the statutory transfer (or "nomination of trustees "),
which is necessarily registered, or they may be contained in a sepa-
rate instrument; in that case the trust instrument (which may in-
clude unregistered land), or a duplicate or attested copy, must be
filed for reference.47 In the remaining seven jurisdictions — Eng-
land, New South Wales, Tasmania, Victoria, Western Australia,
New Zealand, Jamaica 48 — the trust instrument or a copy may be
filed for reference. In New South Wales and Tasmania unregis-
tered land may be included in the trust instrument.

The trust instrument occupies a peculiar position in the system
of registration of title, and this position is substantially the same
in all jurisdictions, notwithstanding the differences in the statutes.
The title of the beneficiaries, though equitable, is complete, and
will be duly enforced by the courts like any other equitable title —
it is not a merely incomplete legal title:49 the beneficiaries do not
seek a registered or legal title at all, but rest on their trustees' reg-

40 Eng. 1875, s. 57 : I. 1891, s. 70 ; On. 1914, s. 78.

41 V. 1915. s. 66 ; W. A. 1893, s. 55 : J. 1888, s. 45.
a B. C. 1911, s. 50.

48 Tr. 1902, s. 110; L. Is. 1886 (1914), s. 26.

**Fi. 1876 (1906)', s. 20; F. M. S. 1911, s. 10.

« S. A. 1886, s. 162.

46 Q. 1861, ss. 77, 78: P. 1913, ss. 84, 85.

•An attested copy was deposited in Commr. of Stamps v. Wienlwlt
(1915) 20 C. L. R. 531. and thereby escaped payment of stamp duty.

*»Eng. 1897, s. 6 (6) ; N. S. W. 1900, s. 82; Tas. 1862. s. 66: V. 1915,
9. 55 ; W. A. 1893, s. 55 : N. Z. 1915, s. 130 ; J. 1888, s. 45.

"Aust. Torr. Syst. 792-795.

164 EQUITABLE INTERESTS. [Ch. v.

istered ownership and the protection afforded by entries on the
register that indicate the existence of the trust. The trust instru-
ment is to be construed, and the beneficiaries' interests are to be
dealt with, as though the property were unregistered land. Thus,
interpretation clauses in the registration statutes making words of
limitation unnecessary for the creation of estates of inheritance
will not be read into the trust instrument.50 And interests, which
in the case of unregistered land would be estates tail, must be as-
sured and barred by the methods of conveyance appropriate to
estates tail under the general law.51 The beneficiaries have the
same right to dispose of their interests as if they were ordinary
equitable interests in unregistered land, and in case of competing
priorities the ordinary rules will apply.52

SECTION 3 EQUITABLE INTERESTS OTHER THAN TRUSTS.

By equitable interests here are meant primarily interests created
after initial registration, or recognized as such after initial regis-
tration, excluding such equitable interests as merely give rise to
claims for compensation by being lost on initial registration.1 In-
terests by way of mortgage are only referred to incidentally, and
are excluded as much as possible. " Mortgages " is the subject of
the next Chapter (Chap. VI.).

Equitable interests may vary in value as rights of property from
a mere claim to have an interest, registered or unregistered, in the
land,2 to the right under a duly executed instrument of being reg-
istered as owner of a particular interest.3 Between these two ex-
tremes lie such interests as leases (in England and Ontario4),
which can be protected by the registration of a formal " notice."
The right which the holder of a duly executed statutory instrument
has to be forthwith placed upon the register — as for instance a
purchaser who has paid the whole of his purchase money — amounts
to a right of property as distinguished from a mere claim to specific
performance.5

30 Walters v. Eldridge (1892) 4 Q. L. J. 118; Hayes v. Bourne (1895)
7 Q. L. J. 146.

51 Allison v. Petty (1899) 9 Q. L. J. 125; Tietyens v. Cox (1916) 17
S. R. (N. S. W.) 48.

62 In re Rutter (1888) 3 Q. L. J. 105.

*As in cases like Williams V. Papworth [1900] A. C. 563, referred to
in Aust. Torr. Syst. 863.

2McEllister v. Biggs (1883) 8 A. C. 314.

* Barry v. Heider (1914) 19 C. L. R. 197.

*Eng. 1875, ss. 50-52; On. 1914, ss. 70. 71. See Own. & Inc. 125-147.

'Barry v. Heider, supra. A similar case is Acme Co. v. Huxley (1912)
20 West. R. 133 (Al.).

Sect. 3] OTHER THAX TRUSTS. 1 65

Kegistration being the equivalent of getting in the legal estate
under the general law,0 and a duly executed statutory instrument
being the best authority for the register to be altered in favour of
the person presenting it, such an instrument confers the highest
form of interest short of registration — the legal interest. An in-
strument in any other form would of course, if registrable, confer
an equitable interest of equal value. As a rule, however, only in-
struments in statutory form and duly executed can be registered;
the use of the word " may " in such phrases as " may transfer,"
" may lease," &c, is not merely permissive, where no alternative
method of dealing with the land is referred to.7 To this rule
British Columbia and British Honduras s are exceptions ; in the
former the statutory form (when prescribed) is optional, though
documents in order to be registrable must be attested, and in the
latter no special forms are prescribed. In other jurisdictions sub-
stantial compliance with prescribed forms is required, though much
discretion is left to the registry officers. In South Australia,
Papua, and Manitoba,9 under unusual circumstances instruments
not in statutory form are expressly authorized to be accepted for
registration, and in other jurisdictions probably a similar practice
would be upheld as reasonable.10 But the grantee under a deed,
which by its form and contents is clearly applicable only to land
that is not on the register, cannot claim as a matter of right to have
it registered ; such a document differs in substance from the pre-
scribed forms.11 This doctrine is of course peculiarly applicable to
the case of leases and mortgages, but not so strongly to the case of
a conveyance out and out.

In the scale of equitable interests, therefore, such an instrument
as a contract for sale, a formal (but unregistrable) deed, or a
statutory instrument not duly attested, represents an interest of
less value than an instrument which is registrable forthwith on be-
ing presented at the registry. Such interests as leases in England
and Ontario, for which protection by registered "notice" is pro-

•Aust. Torr. Syst. 767, 842.

I Crowley v. Templeton (1914) 17 C. L. R. 457.
8B. C. 1911. ss. 51. 102. 106: B. H. 1914, s. 31.

•S. A. 1S86. s. 247: V. 191.°,. s. 126 B; If. "V913, s. 91.

10 In Victoria an ordinary conveyance has been accepted : Guest. T. of
L. Act. 223, referred to in Aust. Torr. Syst. 905. In Lake Tew v. Port
Suettcnhain Rubber Co. [1913] A. (\ 491. an instrument in non-statutory
form was treated as registrable.

II Croirleii v. Templeton. supra (lease under seal, purporting to be
made under the enactment corresponding with the (English) Leases Act
1845). This was an appeal from Victoria: in a similar case in Manitoba
the Court was divided as to the registrability of such a lease : Shore v.
Green (1890) 6 Man. R. 322.

166 EQUITABLE INTERESTS. [Ch. v.

vided (a/iie, p. 1G4), must be regarded as equitable interests in
relation to the registered ownership; they are superior to mere
contracts for sale as being complete, but inferior to a statutory in-
strument ripe for registration — since this merely requires an
additional formality in order to confer a registered and legal inter-
est.12 Other interests which must be regarded as equitable and not
susceptible of actual registration, are life estates, reversions, and
remainders, in jurisdictions where these can only be noted on the
register — as distinguished from being formally registered.13 But
when statutory provision is made for entering such interests as these
on the register (though without actual registration) in lieu of
merely protecting them by caveat, caution, &c, they may be re-
garded as incumbrances on the registered ownership as well as
equitable interests of ownership.

An equitable interest may be derived either from a registered
owner, or from a person who is not registered. A contract of sale
is the commonest instance of an interest taken from a registered
owner, and the formal instrument of transfer subsequently exe-
cuted in pursuance of the contract confers merely an equitable
interest of the same kind but of greater value. Interests taken from
persons who are not registered will vary in kind and value accord-
ing to the status of the grantors or assignors. These interests will
be less likely to be defeasible (and therefore more valuable) if they
are either complete rights of equitable ownership, such as the in-
terest of a beneficiary under a protected trust instrument, or rights
of property as distinguished from mere claims to specific perform-
ance, such as a charge or a right to be forthwith registered as
owner.14 The assignee of a right to set aside an existing registra-
tion can of course only realize his interest by embarking on the
necessary litigation.15

Equitable interests may amount to little, if any, more than a
purely personal right, though in general they are actual interests
or rights of property, in the land. The difference in this respect
in different jurisdictions is referred to in Chap. IV, Sect. 7 — " Un-
registered transactions " ante, p. 111. The jurisdiction in which
certain equitable interests are most likely to be classed as purely
personal rights is the Federated Malay States, and the interests
most likely to be so classed are those arising under non-statutory

12 Barry V. Heider (1914) 19 C. L. R. 197, 218.

18 For examples, see Own. & Inc. 51, 56, 57, 59 ; Bro. & G4. 156 ; Aust.
Torr. Syst. 872, 874, 1003; Fi. 1876 (1906), ss. 18, 19.

14 Barry v. Heider, supra; Acme Co. v. Huxley (1912) 20 West. R.
133 (Al.), stated- in Can. Torr. Syst. 276.

"McEllister v. Biggs (1883) 8 A. C. 314.

Sect. 3] OTHER THAN TRUSTS. 167

and non-registrable instruments purporting to vest the land com-
pletely,16 and those arising under any transaction (for instance a
mortgage) carried out in a manner not authorized by the stat-
utes.17 The Malay statute 1S makes non-statutory transactions
" null and void and of no effect " ; the non-statutory instrument is
not thereby made absolutely void, but assignable personal rights
are created which are not true equitable interests in the land.19 In
Leeward Islands also non-statutory dispositions of the land " oper-
ate as contracts only." 20 In Manitoba, Saskatchewan, and Al-
berta,21 certain mortgages on land securing the purchase money
of chattels are made void and unregistrable (in Manitoba void only
so far as they affect the land itself) : such a mortgage (so far as it
has any validity) only gives the rights of an unsecured creditor.22
In British Columbia and Ireland no estate " legal or equitable "
passes until registration ; this reduces the interest taken under an
unregistered instrument to the level of an assignable contractual
right.23

The effect, in the jurisdictions above mentioned, of an unregis-
tered instrument which purports, but is not allowed, to give an
interest in land is comparable to the effect of a license as distin-
guished from a lease. In questions of priority this distinction may
be of vital importance.24 Other cases, illustrating the importance
of determining whether an interest in land is a purely personal one,
or an actual equitable interest, are those relating to hire-purchase
agreements and machinery.25

An interest in registered land may be equitable only, though if
the land were unregistered the same interest would be a legal estate.

16 Illustrations are: Gardner v. Siau Kuan Chia (1912) Innes F. M. S.
159: Loke Yew v. Port Stcettcnham Rubber Ca. [1913] A. C. 491.

"An illustration is Ilaji Abdul Rahman v. Mohamed Hassan [1917]
A. C. 209.

»F. M. S. 1911. s. S.

"Loke Yac v. Port SicetU ■nham Rubber Co. and Haji Abdul Rah-
man v. Mohamed Hassan, supra. Another case cutting down the meaning
of "null and void" in a statute is Choma v. Chmelyk [1918] 2 W. W. R.
382 (Al.), under the Alberta Dower Act.

20 L. Is. 18S6 (1914). s. 6. See In re Smith [1916] 2 Ch. 206.

21 Manitoba— Lien Notes Act (R. S. 1913, c. 115) • Alberta— Charges
on Land in certain instruments, 1910 (2nd Sess.), c. 5; Saskatchewan —
Sas. 1917, ss. 99, 129, 130.

22 Gilbert v. Ullerich (1911) 17 West. R. 157 (Sask.).

"B. C. 1911, s. 104; I. 1891. ss. 25. 35. The cases under these
sections are cited in Chap. IV., Sect. 7 — "Unregistered Transactions" ante,
pp. 114, 115.

" An illustration is King v. David Allen d Sons [1916] 2 A. C. 54.

"Illustrations are: In re Samuel Allen & Sons [1907] 1 Ch. 575; In
re Morrison Jones d Taylor [1914] 1 Ch. 50.

168 EQUITABLE INTERESTS. [Ch.v.

This is clear in the majority of jurisdictions.26 In England, how-
ever, it has been held — and the decision might apply in Ontario —
that the old legal estate is not necessarily merged in or abrogated
by the registered ownership, and that the latter is not really a right
of ownership, but in the nature of an overriding power.27 There
seems to be no such difference between the position of the registered
ownership in England and in other jurisdictions as to justify this
view. The most obvious difference between the English statute
and others is the express permission given by the English Act of
1875 to create estates and interests independently of the registered
ownership — a feature however that also occurs in the statutes of
Ireland and Ontario.28 No suggestion has been made in any Irish
or Ontario case that the registered owner of freehold land has
anything but an estate in fee simple. The permission to create
estates " off the register " seems to express merely what is implied
in the Australian and other statutes, and to allow what is prohi-
bited in the Federated Malay States and some other jurisdictions
(ante, p. 167). That interests thus created "off the register" in
the Australian jurisdictions are equitable has already been pointed
out (ante, p. 165).

The extent to which estates less than freehold (that is, leases
for years and tenancies) are made equitable interests for want of
registration varies in different jurisdictions. So far as leases and
tenancies are occupation interests they may in some jurisdictions
remain strictly legal interests unaffected by the registered title.
This side of the question is dealt with in Chap. Ill — " Possession
and Eegistration " ante, p. 90. With respect to other leases not
excepted from the effect of registration of the land and transactions
with it, provision is made for the registration (or entry in some
way on the register) of leases in every jurisdiction except British
Honduras. There every lease is necessarily equitable, since it re-
quires the protection of a caveat.29 In other jurisdictions provi-
sion is made for a registered leasehold title.30 Any lease, regis-
tered neither as substantive leasehold ownership nor as a charge or

26 Allison v. Petty (1899) 9 Q. L. J. 125: Finucane v. Registrar of
Titles T1902] S. R. Q. 75; Macindoe v. Wehrle (1913) 13 S. R. (N. S. W.)
500; Davis v. McC'onochie (1915) 15 ib. 510; McEllister v. Biggs (1883) 8
A. C. 314.

27 Capital and Counties Bank v. Rhodes [1903] 1 Oh. 631 ; Att.-Gen.
v. Odell [1906] 2 Ch. 47, 75. See Own. & Inc. 91, 121, 145, for criticism
of the former case.

28 Eng. 1875, s. 49 ; I. 1891, s. 44 ; On. 1914, s. 68.' See Own. & Inc.
230 et seq.

29 B. H. 1914. s. 40, sch. D.

30 Chap. II. — " Initial Registration," sect. 1, ante, p. 24.

Sect. 3] OTHER THAN TRUSTS. 169

incumbrance on the freehold, must be regarded as conferring an
equitable interest only.

Leases in England and Ontario 31 differ in the manner of their
registration as incumbrances from such leases in other jurisdic-
tions, and strictly are not entitled (when not registered as substan-
tive leasehold ownership) to be considered as registered. No
statutory form is prescribed, and the lease itself is not registered,
but a u notice " is " registered,'' thus placing the lessee's interest
on the same footing as any other assurance in non-statutory form
protected by restrictive entry. Such an interest should, it is sub-
mitted, be classed as equitable. In Ireland 32 the lease may be
H registered " as a burden on the land, but this registration does
not appear to carry any warranty of title beyond a statutory prior-
ity according to date of registration, and it is merely an alterna-
tive to registration of substantive leasehold ownership ; the interest
of the lessee would seem to be equitable only, as in England and
Ontario.

Dower in Ireland (where it still exists), and dower and curtesy
in England and Ontario,33 may be protected in precisely the same
manner as leases, just referred to. These interests therefore should
be regarded as equitable. Dower is seldom mentioned in other
jurisdictions.34

The priorities inter se of these equitable interests are (apart
from the special effect of restrictive entries) governed chiefly by
the general rules of equity jurisprudence.35 The provisions of the
registration statutes affect these priorities in two ways: (1) There
are enactments relating to the priority inter se of competing
statutory instruments presented for registration; (2) The appli-
cation of the general rules is indirectly affected by the opportuni-
ties conferred under the statutes of readily protecting an equitable
interest by means of a caveat or other restrictive entry.36

• »lEng. 1875, ss. 50. 51: On. 1914. s. 70. »I. 1891. ss. 44. 45.

" I. 1891. ss. 45, 49 : Eng. 1875. s. 52 : On. 1914, s. 71.

** See Aust. Torr. Syst. 871. Alberta has a recent " Dower Act "
(1917. c. 14), under which the family residence (or "homestead" as de-
fined by the Act) is subject to the wife's rights, similar to those enjoyed by
a wife under the old law of dower. The homestead cannot, in general, be
disposed of without the wife's consent, and she has an estate for life after
her husband's deatb. The Act replaces the Married Women's Home Pro-
tection Act (1915. c. 4), and is itself amended by s. 53 of a statute law
amendment Act (1918, c. 4). No formal registration of the homestead is
required, and the interest of the wife seems to be an equitable interest
only. A case under the Act is Choma v. Chmelyk [1918J 2 W. W. R. 382
(AL). There is a similar Dower Act (1919, c. 26) in Manitoba, replacing
1918, c. 21. See also the Saskatchewan Homesteads Acts (1915. c. 29) :
1916. c. 27).

"Barry v. Heider (1914) 19 C. L. R. 197; Acme Co. v. Huxley (1912)
20 West. R. 133 (Al.)

uIti re Scanlan (1887) 3 Q. L. J. 43; Barnes v. James (1902) 27 V.
L. R. 749, 751.

170 EQUITABLE INTERESTS. [Ch. v.

In all jurisdictions except British Honduras some provision is
made by the statutes for priority in interest, where two competing
instruments are presented for registration, being secured by prior-
ity in time of registration. Even in the case of British Honduras
this would seem to be implied. The majority of the statutes con-
tain enactments to the effect that priority in time of registration
gives priority of interest, that for this purpose the presentation of
the instrument at the registry is the time of registration, and that
the production of the certificate of title is usually essential and in
case of doubt confers a better right to registration of the instru-
ment presented. The enactments in the nine Australasian juris-
dictions, Trinidad-Tobago, and Jamaica, are nearly identical.37
They differ from others in providing that where two competing
instruments are presented simultaneously, registration shall be
accorded to that with which the certificate of title is presented.
This is, however, almost necessarily implied in other statutes. The
Federated Malay States statute 38 follows that of Fiji, omitting
the special provision as to simultaneous presentation. Manitoba,
Saskatchewan, Alberta, and North- West Territories 30 stand to-
gether, the enactments being to the same effect as the Australasian
without the special provision as to simultaneous presentation. The
Leeward Islands 40 enactments somewhat resemble the last men-
tioned group, but are drafted differently. British Columbia is
quite different, while the Ontario enactments have some resem-
blance to those of the English statutes ;41 in British Columbia the
production of the certificate of title seems not to be made essential.
In England and Ireland42 the provisions as to priority relate
chiefly to charges.

The necessity for producing the certificate of title when pre-
senting an instrument for registration of a transaction seems to
imply (in jurisdictions other than the Australasian) the provision
made in the Australasian jurisdictions that on simultaneous presen-
tation of two competing instruments the transaction in which the

37 N. S. W. 1900. ss. 36. 38. 41 ; Q. 1861. ss. 43. 45. and 1877, s. 12 :
S. A. 1886. ss. 50. 56, 58 : Tas. 1862, ss. 35, 38, 39 ; V. 1915. ss. 53, 59, 61 ;
W. A. 1893. ss. 53, 57. 58; P. 1913. ss. 21. 26, 28; N. Z. 1915, ss. 35, 37,
38; Fi. 1876 (1906). ss. 33, 35. 38. 39; Tr. 1902, ss. 41. 44, 46; J. 1888.
ss. 43. 44. 47, 48.

38 F. M. S. 1911. ss. 19, 21, 24.

89 M. 1913, ss. 12. 74, 89, 90 ; Sas. 1917, ss. 25, 26, 50, 54, 63 : Al.
1906. ss. 20, 23. 25 ; Can. 1906, ss. 40, 41, 48, 77.

40 L. Is. 1886 (1914), ss. 21, 37, 38. 43, 52, 66, 69.

« B. O. 1911, ss. 20A, 29, 73, 75 ; On. 1914, ss. 36, 40. 55.

*Eng. 1875, s. 28: 1897. s. 8; 1903-8 Rules, rr. Ill, 265, 268. I.
1891. ss. 49, 81; 1910 O. 4, r. 31.

Sect. 3] OTHER THAN TRUSTS. 171

certificate of title is produced shall have priority of registration.43
The two cases cited illustrate the difficulty that may arise when the
certificate of title is not in the physical possession of either com-
peting part}- : the question may then be, who is entitled to its pos-
session ? 44 This kind of competition for priority is frequently
illustrated in cases where the registered owner's land has been sold
under an execution.45 The rights of general creditors and of an
execution creditor of the registered owner may also come into com-
petition with other interests, and these often differ in different jur-
isdictions.46 Presentation of an instrument prior to initial regis-
tration being completed will not in itself usually confer priority,47
but in Saskatchewan, Alberta, and Xorth-West Territories,48 cav-
eats may be entered prior to initial registration, and apparently
priority might thus be gained.

The question of the effect of restrictive entries such as caveats
is nearly always raised in some way in cases of competition among
equitable interests. When no such question is raised the decision
is governed entirely by the ordinary rules of equitable jurispru-
dence. Thus, priority in time of creation of interest will prima
facie govern priority in interest.49 But the person entitled in prior-
ity of time may be estopped from asserting his equitable title
against another who has given value for an equitable interest in
land.50 A mortgagor whose land has been sold by his mortgagee
cannot claim the right to redeem as against the purchaser, even
though the latter is not registered;51 nor could an unregistered
second mortgagee under similar circumstances claim the right to
redeem.52

uRe Greenshields Co, (1905) 2 West. R. 421 (N. W. T.) ; Re Ameri-
can-Abell Co. and Noble (1906) 3 West. R. 324 (X. W. T.). See Can.
Torr. Syst:. 44, 116.

"Swonson v. Getsman (1908) 8 West. R. 762 (Sas.).

4iIn re Deane (1898) 9 Q. L. J. 106. and other cases in Aust. Torr.
Syst. 1024-1026.

"Giles v. Lesser (1879) 5 V. L. R. 38. Aust. Torr. Syst. 1027: Re
Brooks (1909) 12 West. R. 303 (Sas.), Can. Torr. Syst. 270.

"Richards v. Cadman (1891) 17 V. L. R. 203.

* Sas. 1917, s. 133 (2) ; Al. 1906, s. 86 ; Can. 1906, s. 133. And see
Can. Torr. Syst. 358, 359, as to caveats and registration before the land is
on the register.

48 In re Rutter (1888) 3 Q. L. J. 105.

10 Barry v. Heider (1914) 19 C. L. R. 197; Acme Co. v. Huxley (1912)
20 West. R. 133 (Al.) : Honeybone v. National Bank of New Zealand
(1890) 9 N. Z. R. 102 (here there was a caveat, but it was held not to
affect the question).

"Saltnwn v. McColl (1909), 12 West. R. 146 (Man.).

■* An Australian case under the Merchant Shipping Acts seems decisive
on this point: In re Ships ''Albion;' dc. (1864) 3 S. C. (N. S. W.) 138.

172. EQUITABLE INTERESTS. [Ch. v.

Questions of competing equitable interests affected by the
entry of restrictive entries seem only to have arisen in jurisdictions
which have the " caveat." The priorities in these cases have been
affected quite as much by the possibility of entering a caveat as by
the actual entry of one, since it has been held to be negligence not
to make use of the protection afforded by the statutory method of
safeguarding equitable rights. Thus, priority in time of creation
of interest has not been allowed to prevail where a caveat has not
been entered.53 And conversely, title by priority in time has been
held not to be displaced, on what might otherwise have been suf-
ficient grounds, where the claimant prior in time had entered a
caveat and the other claimant had not done so.54 The mere entry
of a caveat is not sufficient to displace the equitable right to regis-
tration conferred by possession of the certificate of title.55

section 4 protection by restrictive entry (excluding

trusts).

Although the whole of the present chapter is concerned pro-
perly with equitable interests only, as the only interests that need
protection by reason of their being unregistered, it is impossible to
exclude all reference to what are really legal interests, which
(though unregistered) should in theory require no protection by
entry on the register. Eegistration of title is not consistent on
this point, for many interests that are treated as strictly legal and
independent of registration are yet often referred to as capable of
and requiring protection by restrictive entries.

The restrictive entries to be here considered include (in Eng-
land and Ontario) cautions, inhibitions, and registered notices, but
not " restrictions " ; these latter are entered only at the instance of
the registered owner himself,1 and in practice would usually be
employed only for the protection of trusts, of which it is not in-
tended to treat in this section. In Ireland the restrictive entries
are cautions and inhibitions, the place of the registered notice be-
ing taken by the registration of burdens in a subsidiary register.
In jurisdictions other than England, Ontario, and Ireland, the
functions of the caution, the inhibition, and the registered notice,

r'3 Barnes v. James (1902) 27 V. L. R. 749 ; North-West Construction
Co. v. Yallc (1906) 4 West. R. 37 (Man.) : In re Hope & Co.'s Petition
(1903) Jamaica, unreported.

** General Finance Co. v. Perpetual Executors Assoc. (1902) 27 V. L.
R. 739.

"Fricbc v. Cullen (3879) 13 S. A. R. 35.

>Eng. 1875. ss. 58. 59: On. 1914. s. 79. See Own. & Inc. 140: Br. &
Sh. 204. 483.

Sect. 4] PROTECTIVE ENTRIES. 173

are for the most part performed by the caveat, and accordingly the
caveat is the restrictive entry in those other jurisdictions that is
chiefly treated of here.

Some differences in language that are of no substantial im-
portance may first be referred to.

In some enactments the person seeking to have a restrictive
entry made is referred to as " being interested in " the property
to be protected, in others as having or claiming " an interest in " it.
It has been said that the former expression " is of wider compass
than " the latter,2 but it is difficult to see any practical distinction
between them, and the expression " interested in " occurs in New
Zealand as well as in Ontario — though in Xew Zealand a narrower
view of the right to enter a caveat has been taken than was taken
in the Ontario case cited. The two expressions will be treated here
as synonymous.

In some enactments the claimant is referred to as " interested
in " or " entitled to a right in " the property, in others as " claim-
ing to be interested " or " claiming an interest " in it. There
appears to be no practical distinction between these expressions for
the present purpose, and they will be treated as synonymous.
Though not important, it should perhaps be pointed out that it is
only in jurisdictions which have the "caveat" that the word
" claim " occurs.

In some enactments the claimant's interest is referred to as
being in " land," in others in any " land or charge," in others
again in any " land, lease, mortgage, or charge." These expres-
sions have no practical difference for the present purpose, an inter-
est in a charge being necessarily an interest in the land, and the
expressions will be treated as synonymous. Xor is it of any im-
portance that in some enactments " land," &c, merely is mentioned,
in others "registered land," &c.

In some enactments the caveator is referred to as claiming
under an " unregistered instrument," with an enumeration of par-
ticular instruments, " or otherwise " — sometimes " otherwise how-
soever." The fact that the particular instruments enumerated
vary in different enactments seems to be unimportant, and these
clauses all have the meaning they would have if each ran
"... under unregistered instruments of various kinds or other-
wise."

In England and Ireland, the claimant may "lodge," and in
Ontario " apply for the registration of," " a caution to the effect
that " no transaction is to be registered until after notice to the

2 Re Clagstonc and Hammond (1S98) 28 O. R. 409.

174 EQUITABLE INTERESTS. [Ch. v.

cautioner, and the prescribed form of caution " requires " that
registration shall not take place accordingly.3 In the other juris-
dictions the claimant is authorized to " file a caveat," sometimes
" to the effect that " transactions are not to he registered, some-
times " forbidding " registration, and sometimes he is simply au-
thorized to file a " caveat " in the prescribed form.4 All the pre-
scribed forms however agree in using the word " forbid."

All the enactments are thus substantially at one with respect to
the frame of a caution or caveat. The caution " requires " registra-
tion not to be effected, the caveat " forbids " registration to be
effected. So far therefore as a caveat is a notification that regis-
tration is not to be made until notice has been given to the cavea-
tor, it is on the same footing as a caution, and to that extent there
is no difference of any practical importance between them; each
merely claims recognition of the claimant's interest.

The two restrictive entries common to England, Ireland, and
Ontario 5 — cautions and inhibitions — differ inter se in this way :
a caution is a notification of the claimant's interest, and entitles
him to be made aware of any intended transaction by the regis-
tered owner (in Ontario "or other named person") ; an inhibition
is a positive restraint on any transaction by anyone, and operates as
an injunction, differing also from a caution in that it is the act of
the court or the registrar. The inhibition enactments in all three
jurisdictions are worded in nearly the same way, but the Irish
enactment is most detailed and appears to be intended to cor-
respond in part with the English "restriction" {ante, p. 172).

A caution has been said to be " no more than the notice of ad-
verse claim equivalent to a lis pendens," 6 but it does in fact operate
as a sort of temporary injunction, inasmuch as registration of an
intended transaction is delayed until notice has been given to the
cautioner and an opportunity afforded him of asserting his rights.7
It is specially enacted in England and Ontario 8 (though not in
Ireland) that a caution is not to "prejudice the claim or title of
any person." More detailed provision is made in the Ontario than

3 Eng. 1875, s. 53 ; 1903-8, Rules, r. 226. f. 58. I. 1891, s. 69 ; 1910 O.
7, r. 2, f. 29. On. 1914, s. 72 ; 1911 Rules, r. 23, f. 19.

4 Examples of these differences may be seen in statutes of British
Columbia. New South Wales, and New Zealand : B. C. 1911, s. 62 ; N. S. W.
1900. s. 72: N. Z. 1915, s. 146.

5 Eng. 1875, ss. 53-57, 63, 64 : 1903-8 Rules, rr. 226-242. I. 1891, ss.
67, 70; 1910 O. 7, rr. 2-4. On. 1914, ss. 72-78, 85; 86; 1911 Rules, rr.
23-25. See Own. & Inc. 129-135, 139-147 ; Bro. & Gl. 81, 176, 178.

' 6 Att.-Gen. v. Hargrove (1906) 11 O. L. R. 530.

7 Own. & Inc. 131, 139, quoted in Pearson v. O'Brien (1912) 20 West.
R. 510, 528 (Man.). 8 Eng. 1875, s. 64; On. 1914, s. 86.

Sect. 4] PROTECTIVE ENTRIES. 175

in either English or Irish statutes, and in particular in Ontario a
second caution may not be entered in respect of the same claim
without special permission.

The interest of a " judgment creditor " is expressly included by
the English enactment among the " cautionable " interests. In
Ireland and Ontario the statutes differ in this respect, but make
other and special provision for the protection of judgments and
executions.9 The superiority of these other provisions to mere
cautions make it unlikely that a caution would, in these two juris-
dictions, be entered in preference, but the interest of a judgment
or execution creditor would seem to be sufficient to support a cau-
tion.

Lis pendens is not mentioned in the English statutes as capable
of protection by caution, though apparently it could be so pro-
tected; in Ontario this is expressly provided for.10 In Ireland a
lis pendens may be registered as a burden,11 but presumably might
also be protected by caution.

There seems to be no distinction between caution and inhibition
with respect to the kind of interest required to be shewn by the
claimant. This interest is described in the widest terms — " any
person entitled to any right in," " any person interested in any
way in," land or a charge, &c.12 Any right " to call for or receive
a conveyance of land is an ' interest ' within the " statutes.13 There
seems to be nothing in the statutes of these three jurisdictions re-
quiring this interest to be one that has been created by an instru-
ment in writing. The most important of such interests — equitable
mortgages by deposit of certificate of title — is expressly recognized
in all three.14

A caution differs from all other restrictive entries on one point.
The improper entry of a caution gives the registered owner a statu-
tory right of action for any damage sustained.15 Xo such right
is conferred in respect of any other entry, and any right of action
would be governed by ordinary principles and practice with regard
to slander of title or other head of damage.

The third restrictive entry — registered notice — finds a place

» I. 1891. ss. 21, 45 ; Bro. & Gl. 120. On. 1914, ss. 62-65.

10 Br. & Sh. 27, 199. On. 1914. s. 82.

n I. 1891. s. 45 : 1910 O. 4. r. 17 ; Bro. & Gl. 83. 245.

"Eng. 1875, ss. 53, 57: I. 1891, ss. 69, 70; On. 1914, ss. 72, 78. See
Own. & Inc. 129-132.

nRe Clagstonc and Hammond (1898) 28 O. R. 409.

"Eng. 1897, ss. 6 (8). 8 (6) ; 1903-8 Rules, r. 243. I. 1891, s. 81;
Bro. & Gl. 158 (note to s. 45). On. 1914, s. 92.

lsEng. 1875. s. 56: On. 1914, s. 85; I. 1891. s. 69 (5).

1?6 EQUITABLE INTERESTS. [Cu.x.

only in England and Ontario.10 Interests thus protected are, in
Ireland, protected by being entered as " burdens " or in a subsidi-
ary register.17 The typical interests in England and Ontario that
can be thus protected by registered notice are leases, and rights of
dower and curtesy; these are expressly and prominently mentioned,
and their protection by registered notice prevents the entry of a
caution in respect of them.18 This " notice " by its " registration "
serves merely to give notice of the existence of the interest, and in
that sense makes it an " incumbrance." Xo warranty of the title
to the interest is given by the registration of the notice, and the
protection given depends simply on the ordinary equitable doctrine
of notice, which would operate quite as well by entry on the regis-
ter in any way of the fact of some outstanding interest being vested
in a person other than the registered owner. There are, however,
other interests less prominently mentioned in the statutes, but pro-
tected in the same way as leases, dower, and curtesy. The most
important of these are: (in England) lien by deposit of certificate
of title, and (in England and Ontario) conditions restricting the
use of land.

Lien or equitable charge by deposit of certificate of title is actu-
ally mentioned in the statutes of both Ontario and England, but
only in England is express provision made for its protection by
special entry on the register.19 In Ontario it is simply enacted
that the deposit of the certificate of title has the same effect as a
deposit of title deeds of land, and there is a similar enactment in
Ireland.20 But in England further provision is made for written
notice being given to the registrar and entered on the register, and
this notice is to " operate as a caution."

Express provision for registration of restrictive conditions or
covenants as annexed to land, of which all successive owners are
then to be " deemed to be affected with notice," is made both in
England and Ontario.21 The effect of this registration is not to
give any further effect to the conditions or covenants, but the reg-
istration is simply made the equivalent of notice.22

16 Eng. 1875, ss. 50-52; 1903-8 Rules, rr. 201-207. On. 1914, ss. 70, 71.
See Own. & Inc. 125-129. These references relate only to leases, dower,
and curtesy ; other interests protectable by registered notice are referred
to, and the whole subject dealt with, in Own. & Inc. 125-147.

17 1. 1891, ss. 45, 49, 54; Bro. & Gl. T57-169. A restriction against
alienation and subdivision is a registrable burden : In re Congested Dis-
tricts Board r1919] 1 I.. R. 146 " Eng. 1875, s. 53; On. 1914, s. 72.

19 Eng. 1897, s. 8 (6); 1903-8 Rules, rr. 243-251. On. 1914, s. 92.
See Own. & Inc. 132-134. 20 1. 1891, s. 81.

21 Eng. 1875, s. 84 (am.); 1903-8 Rules, r. 223. On. 1914, s. 99;
1911 Rules, r. 45.

"Wille v. St. John [1910] 1 Ch. 84. 325. The Ontario section (sub-?-
3) appears to have been amended in accordance with this decision.

Sect. 4] PROTECTIVE EXTRIES. 177

Other registered notices concern such matters as easements.
These, even though affecting the land without special mention in the
register, may be entered or notified on the register in England,
and so as to easements in Ontario, whilst in Ireland all such inter-
ests may be registered as burdens.23

In England priority for the registration of pending transac-
tions may be secured by a " priority notice." 24 The rights of in-
cumbents of ecclesiastical benefices are also specially dealt with.2"'

The caveat in the jurisdictions other than England, Ireland,
and Ontario, takes the place of both caution and inhibition. One
restrictive entry, peculiar to Victoria and Western Australia,20
answers to the English priority notice (supra) and enables a pend-
ing transaction to be securely registered in priority to any others.
The caveat also takes the place, for the most part, of the registered
notice, though the principle of the registered notice is also carried
out in these jurisdictions by other entries relating to outstanding
interests being made on the register. So far as the function of
caution, inhibition, or registered notice respectively are performed
by the caveat, judicial decisions on the enactments relating to the
latter will frequently be found applicable to the three former re-
strictive entries.

The interest in land entitling a caveat to be entered — the " cav-
eatable interest " — is, on the whole, the same in all nineteen juris-
dictions; some exceptions to the general uniformity (the principal
relating to equitable mortgages by deposit) will first be mentioned.

In British Honduras 2T a caveat must be supported by an inter- *
est under a " written instrument," or under a judgment, decree,
or lis pendens. A caveat could not therefore be entered in respect
of an equitable mortgage by deposit of certificate of title only,
though apparently it would be sufficient if there were a memoran-
dum of deposit, however informal.

In British Columbia 2S " no equitable mortgage or lien created
simply by a deposit of title deeds and memorandum thereof shall
entitle the person interested to registration " (s. 33), and no instru-
ment " shall pass any estate or interest, either at law or in equity,
in such land until the same shall be registered" (s. 104). On

MEng. 1875, s. 18 (am.) ; Own & Inc. 1909, 110, 296-298. On. 1914,
s. 23. I. 1891, s. 45. As to easements in Ontario, see HcClennan v. Po-
wassan Lumber Co. (1909) 15 O. L. R. 67, 17 ib. 32.

"Eng. 1903-8 Rules, r. 117: Own. & Inc. 138.

"Ens. 1897, s. 15: Br. & Sb. 330, 331.

24 V. 1915. ss. 196-200 : W. A. 1893, ss. 146-150 ; Aust. Torr. Syst. 979.

" B. H. 1914. seh. D.

MB. C. 1911. ss. 33, 62, 104.

R.T.L.— 12

178 EQUITABLE INTERESTS. [Ch.v.

general principles these enactments are not inconsistent with a
deposit without any writing constituting such an interest in the
land as would confer a right to caveat.29 But the " interest " under
an instrument that was unregistrable, and therefore could not
eventually pass any " estate or interest " in the land, is in the na-
ture of a purely personal interest and not an equitable interest in
the land itself. It is possible therefore that such an " interest "
could not be protected by caveat ; on the other hand, " interest "
might be held to have here an extended meaning, and so capable of
protection by caveat. It is perhaps an argument in favour of not
thus extending the meaning of " interest " that a caveat can only
be entered " by leave of the registrar " ; yet the caveatable interest
is described in the widest possible manner—" under any . . . un-
registered instrument, as heir-at-law, or otherwise howsoever"
(s. 62).

In New Zealand it is enacted by a general statute that land is
not to be " charged or affected by way of equitable mortgage or
otherwise " by a deposit of title deeds, with or without a written
memorandum ; the statute is to be " construed so as not to conflict
with " the registration statutes.30 As the registration statute is
silent on the subject of equitable mortgage by deposit of certificate
of title, the general statute appears to be the governing enactment
and to prevent a valid charge being created by such a deposit. As in
British Columbia, therefore, a depositee in New Zealand could only
claim to have a caveatable " interest " in the land by extending the
word " interest " to include a purely personal interest.

In Trinidad-Tobago, though the right of a depositee to protect
his interest by means of a caveat seems not to have been disputed,
the interest conferred by deposit of certificate of title as security
has been held not to be in the nature of a mortgage, the depositee
having a mere right of action for his money ; in such an action he
can obtain judgment for principal and interest, but not a declara-
tion that he is a mortgagee.31 This is an approximation to the

29 White v. Neaylon (1886) 11 A. C. 171. Other cases are cited in
Hogg's Deeds Reg. in Australasia, 15, 29.

80 N. Z. 1915, s. 1; Property Law Act 1908 (No. 152), s. 63; Beckett
v. District Land Registrar (1909) 28 N. Z. R. 788. See Martin's Prop.
Law Act 1905, p. 109. N. Z. 3915 does not (nor did the repealed
statutes) contain any reference, such as is contained in many statutes, to
the possibility of a certificate of title, when not produced at the registry,
being deposited as security: see ss. 40, 80, and contrast such enactments
as N. S. W. 1900, s. 38 ; J. 1888, s. 122, &c.

31Lascelles v. Benlisa (1912) 2 Tr. & Tob. 181. Aust. Torr. Syst. 787
was quoted, but the case goes beyond any statement there made, and is in
fact opposed to the principle of most of the Victorian decisions there re-
lied on: see particularly Charters v. Cosmopolitan Land Batik (1902) 28
V. L. R. 251.

Sect. 4] PROTECTIVE ENTRIES, 179

position in British Columbia and Xew Zealand — that the depositee
has a purely personal interest, not an equitable interest in the land
— and seems out of harmony with the view taken in the Australian
and other cases under enactments from which the Trinidad-Tobago
statutes do not differ in any material point.32

In six jurisdictions — Queensland, Western Australia, Papua,
Fiji, Federated Malay States, Leeward Islands 33 — it is specially
enacted that an equitable mortgage by deposit of certificate of title
may be protected by caveat, though the language of the enactments
differs a good deal, only those of Queensland and Papua being ex-
actly alike. In Federated Malay States the word " lien " only is
used, though otherwise the enactment is like that of Fiji. It has
been held in Fiji that a caveat can only be entered if the caveator is
prepared at once to enforce his rights as equitable mortgagee,34 but
it is not clear upon what reasoning this opinion rests.

In South Australia 35 the right to enter a caveat seems to be im-
pliedly conferred by the joint operation of the enactments enabling
an equitable mortgage by deposit to be created, and the terms of
the enactments which refer directly to caveats — the caveatable in-
terest including interests arising " otherwise " than under written
instruments.

In seven jurisdictions — Xew South Wales, Tasmania, Victoria,
Western Australia, Manitoba, Jamaica, Trinidad-Tobago 38 — the
statutes imply that an equitable mortgage by deposit may be
created, in referring to the possibility of a missing certificate of
title being " deposited as security " ; the caveatable interest also
need not necessarily arise under a written instrument, but may be
created "otherwise." In several of these jurisdictions the validity
of equitable mortgages by deposit has been judicially upheld, and
this seems to imply that they may be protected by caveat.37

** See particularly Tr. 1902. s. 126, which was not cited in Lascelles v.
Benlisa (supra). This section refers to the possibility of a certificate of
title being " deposited as security for any loan," and the corresponding en-
actment in Jamaica has been held to constitute a recognition of equitable
mortgage by deposit: Alexander v. Simpson (1903) Jamaica, unreported.
And see note 30 on New Zealand.

»Q. 1877, s. 30; W. A. 1893. s. 137: P. 1913. s. 58: Fi. 1876 (1906),
s. 109; F. M. S. 1911. s. 80; L. Is. 1886 (1914), ss. 59-63.

"Wilson v. Bank of New Zealand (1891) Udal's Fiji R. 259.

*S. A. 1886, ss. 149. 191.

"N. S. W. 1900, ss. 38, 72: Tas. 1862. ss. 82, 93: V. 1915. ss. 78,
183; W. A. 1893, ss. 74, 137; M. 1913, ss. 60, 138; J. 1888, ss. 113, 122;
Tr. 1902, ss. 116, 126.

^Aust. Torr. Syst. 787; Hall v. Commercial Bank (1896) 22 V. L. R.
561; Alexander v. Simpson (1903) Jamaica, unreported; Lascelles v. Ben-
lisa (1913) 2 Tr. & Tob. 181.

J80 EQUITABLE INTERESTS. [Ch. v.

In the remaining three jurisdictions — Saskatchewan, Alberta,
North-West Territories — the statutes are silent on the subject of
equitable mortgages by deposit. It has however been held in Al-
berta that such a security can be created,38 and this would apply in
the other two. The terms of the enactments authorizing the entry
of a caveat differ ; in Saskatchewan the enactment is general — " any
person claiming to be interested " may enter a caveat, in Alberta
and North- West Territories there is an enumeration of instruments,
&c, followed by " or otherwise." 39 The course of legislation in
Saskatchewan indicates that an interest to be caveatable need not
be created by any written instrument.40 In Alberta a caveat not
supported by an instrument in writing has been held good,41 and
this would apply in North- West Territories. It would seem there-
fore that in these three jurisdictions the interest of an equitable
mortgagee by deposit of certificate of title would be a caveatable
interest, whether there were a memorandum in writing or not.

The nineteen jurisdictions are not quite uniform on the question
whether an interest not evidenced by writing (other than a mort-
gage by deposit) will support a caveat. This has already been re-
ferred to incidentally. In Fiji and Federated Malay States the
enactments contain enumerations of specific instruments sufficient
to support a caveat, followed by the words " or otherwise," 42 as in
many other statutes. But in these jurisdictions it must be con-
sidered doubtful whether interests (other than equitable mort-
gages by deposit) not evidenced by writing will support a caveat.
In the Federated Malay States judicial opinion is divided as to
whether the words " or otherwise " are to be interpreted ejusdem
generis with the preceding enumeration of instruments,43 and con-
siderations which apply to this statute apply also in Fiji.

There are three other jurisdictions — British Columbia, Leeward
Islands, Western Australia 44 — in which it is perhaps doubtful
whether interests (other than mortgages by deposit) not evi-
denced by writing are caveatable. In British Columbia the enu-

"Fvalowski v. Fialowski (1911) 19 West. R. 644 (Al.) ; Acme Co. v.
Huxley (1912) 18 West. R. 534; 20 ib. 133 (Al.).

39 Sas. 1917, s. 128 ; Al. 1906, s. 84 ; Gan. 1906. s. 131.

40 Sas. 1909, s. 125 (Can. Torr. Syst. 507) was amended by s. 15 of
1913, c. 30, and the words " whether under an instrument in writing or
not " inserted. See Can. Torr. Syst. 366 et seq.

41 Re MacCullough and Graham (1912) 21 West. R. 349 (Al.), and
cases in note 38.

42 F. 1876 (1906), s. 93; F. M. S. 1911, s. 70.

43 In re Registration of Caveat (1908) Innes F. M. S. 114 ; Chang Lin
v. Chang Swee Sang (1908) ib. 95; 109; Chang Gun Lai v. Lim Chu
Kuan (1911) ib. 126. 131. These cases are discussed in Innes F. M. S. 51.

"B. C. 1911, s. 62; L. Is. 1886 (1914), s. 112; W. A. 1893, s. 137.

Sect. 4] PROTECTIVE ENTRIES. 181

meration in the defining clause includes, besides instruments, " as
heir-at-law or otherwise howsoever," and this seems consistent with
interests other than documentary being protected. In the Leeward
Islands " any person claiming to be entitled to stay the registration
of any dealing in land until his rights therein shall be recognized
and registered, may present a caveat. . . ." This also seems not
inconsistent with a non-documentary right being protected, though
the two possible constructions are very evenly balanced. In West-
ern Australia the precise enumeration of particulars, including
charges by deposit, and notwithstanding the words " or by devolu-
tion in law or otherwise," seems to point to the exclusion of all
other interests not evidenced by writing : such other interests would
not therefore be caveatable.

The British Honduras 45 statute is precise, and no claim can be
protected by caveat unless it arises under a " written instrument,"
or under a judgment, decree, or lis pendens.

In nine jurisdictions — Xew South Wales, South Australia,
Tasmania, Victoria, Xew Zealand, Trinidad-Tobago, Jamaica,
Alberta, Xorth-West Territories 46 — there seems no reasonable
doubt that interests evidenced otherwise than by writing may be
protected by caveat. The defining clauses refer to instruments —
often " devolution in law " — " or otherwise." In South Australia
the phrase is : " under an agreement, or under an unregistered in-
strument, or otherwise " ; in Xew Zealand : " by virtue of any un-
registered agreement, or other instrument, or transmission, or of any
trust express or implied, or otherwise howsoever." In Alberta and
Xorth-West Territories, in addition to will, deed, unregistered in-
strument, &c, the claim may be " under an execution where the
execution creditor seeks to affect land in which the execution
debtor is interested beneficially but the title to which is registered
in the name of some other person, or otherwise." In Xew Zealand
the right to enter a caveat on the strength of an unwritten trust is
settled by judicial decision,47 and there seems no reason why this
should not apply to other cases of interests not evidenced by writ-
ing, and in other jurisdictions. In Xew South Wales a caveat
may be entered on the general ground that the then registered
owner should not have been placed on the register,48 and this prin-
ciple seems applicable in other jurisdictions. In Alberta a part-

* B. II. 1914. sell. D.

"X. S. YV. 1900, s. 72: S. A. 1886, s. 191: Tas. 1862. s. 82: V. 1915,
s. 183; X. Z. 1915. s. 146: Tr. 1902. s. 116: J. 1888, s. 113: Al. 1906. s.
84; Can. 1906, s. 131.

"D'Albedyhll v. D'AlleduhU (1885) 3 X. Z. S. C. 391.

"Re Hamilton (1902) 2 S. R. (X. S. W.) Eq. 117.

182 EQUITABLE INTERESTS. [Ch. V.

nership interest not in writing has been held sufficient to support
a caveat.40 Among " instruments," a plan has been held sufficient
to support a caveat.50

In the remaining four jurisdictions — Queensland, Papua, Mani-
toba, Saskatchewan 51 — there is nothing to cut down the generality
of the language used — " any person claiming an estate of interest,"
or " to be interested," in land may enter a caveat. In these juris-
dictions therefore it seems clear that a caveator need not neces-
sarily rely upon an interest under an instrument in writing.

Certain interests under instruments in writing, which would
ordinarily constitute valid interests in land and could accordingly
be protected by caveat, have in some jurisdictions been either made
altogether void or reduced to the level of purely personal interests
not affecting land, and therefore incapable of protection by caveat.
Thus, in Manitoba, Saskatchewan, and Alberta,52 a caveat cannot
be entered in respect of certain instruments purporting to secure
the purchase money of chattels on the purchaser's land. Nor, if
the registration of a mortgage is prohibited, can a caveat be en-
tered in respect of the mortgage.53 But the case of merely infor-
mal securities must be distinguished, and these (though consisting
of unregistrable instruments) may usually be protected by caveat.54
The question of the alteration of the law of securities by deposit in
New Zealand is referred to ante, p. 178.

Judgments and executions are in most jurisdictions the subject
of special provisions for their protection by entry on the register.
Tasmania 5B appears to be the only jurisdiction in which express
authority is conferred on a judgment creditor to enter a caveat,
though this could probably be done elsewhere ; and a caveat has been
held good in Manitoba.56

49 Re MacCullough and Graham (1912) 21 West. R. 349 (Al.).

80 In re Grand Trunk Pacific Branch Lines Co. (1912) 22 West. R.
515 (Sas.), under the repealed Sas. 1909, s. 125.

51 Q. 1861, s. 98; P. 1913, s. 63 ; M. 1913, s. 138; S'as. 1917, s. 128.
As to Saskatchewan, see note 40.

82 Manitoba— Lien Notes Act (R. S. 1913. c. 115). s. 4; Sas. 1917, ss.
99, 129, 130; Alberta — 'Charges on Dand in certain instruments (1910,
2nd Sess. c. 5). See Can. Torr. Syst. 370.

58 Re International Harvester Co. (1909) 9 West. R. 680, 11 ib. 29
(Sas.), cited as Re Ebbing in Can. Torr. Syst. 370.

54 Smith v. American Abell Engine Co. (1907) 5 West. R. 329, 6 ib.
179 (Man.) ; Rogers Lumber Co. v. Smith (1913) 23 West. R. 946 (Sas.) ;
Coast Lumber Co. v. McLeod (1914) 29 West. R. 357 (Sas.). And see
Aust. Torr. Syst. 1036, quoted in Imperial Elevator Co. v. Olive (1914) 29
West. R. 339, 348 (Sas.).

55 Tas. 1886, s. 22. Compare Engr. 1875, s. 53, as to " caution."

=6 North of Scotland Canadian Mortg. Co. v. Thompson (1900) 13
Man. R. 95.

Sect. 4] PROTECTIVE ENTRIES. 183

With respect to lis pendens the statutes shew no uniform prin-
ciple. In some the registration of a lis pendens is forbidden, in
others it is allowed. Where the statutes are silent, it has been held
that registration is not permissible.57 But a prohibition against reg-
istration does not necessarily prevent the entry of a caveat, which is
not registration but merely notification of a claim. Where a lis
pendens is allowed to be registered as a charge on the land — as in
British Columbia — it may be treated as a caveat and kept on the
register upon security being given to cover damages.58 The lis
pendens may be so serious a cloud on the title as to justify rejection
of an application for registration.59

Easements may, it would seem, be the subject of a caveat. It
has been so held in Xew Zealand,00 and the principle seems applic-
able elsewhere. That an easement is a caveatable interest seems to
have been assumed, though not decided, in Xew South Wales and
Saskatchewan.61 In South Australia and Western Australia °2 " an
easement in gross " is an interest that can be formally registered,
and thus would appear to be capable of protection by caveat. Though
not of course conclusive, the validity of a caveat entered by the
owner of an easement upon an initial application °3 is a strong argu-
ment in favour of an easement being a caveatable interest after land
has been placed on the register. That an easement is a caveatable
interest seems also to follow from the cases which decide that public
rights of user cannot be the subject of a caveat upon initial regis-
tration, when the caveator is not entitled to litigate the question be-
tween the owner of the land and the public.04 These public rights
are not prejudicially affected by the fact of the land being regis-
tered in the name of the owner of the soil.65 But it is apprehended
that the right to litigate would carry with it the right to enter a
caveat, and that in any case in which (as in the case last cited) an

OT Syndicat Lyonnais v. McGrade (1905) 36 Can. S. C. R. 232.

" Toxcne v. Brighouse (1808) G B. C. R. 225.

•9 Granby Consolidated Mining Co. v. Esquimault Ry. [1919] 3 W. W. R.
331 (Privy Council).

40 In re Faulke's Caveat (1906) 26 N. Z. R. 392. Other Australasian
cases are cited in Aust. Torr. Syst. 1037.

tlIn re Paul (1902) 19 W. N. (N. S. W.) 114: Re Jamieson Caveat
(1913) 23 West. R. 921 (Sas.) ; Roaf v. Grand Trunk Pacific Co. (1915)
31 West. R. 893 (Sas.). And see Aust. Torr. Syst. 1037.

■ S. A. 1886, s. 81 ; W. A. 1900. s. 15.

85 In re Houison (1897) 18 N. S. W. 300; Aust. Torr. Syst. 745.

"Concord Munic. District v. Coles (1905) 3 C. L. R. 96; Aust. Torr.
Syst. 746.

"Victory v. Strathfield Municipality (1911) 11 S. R. (X. S. W.) 354;
Chap. IV., sect. 1 ante, p. 99.

184 EQUITABLE INTERESTS. [Ch. V.

injunction was claimed the plaintiff would be held entitled to enter
a caveat as a preliminary proceeding.

Covenants running with the land are sometimes protected by
an entry of their existence being made on the register. Where this
is not done, such covenants would be interests in the land entitling
to protection by caveat. As to this there could be no question if
the covenant were one running with the land at law. The question
of covenants running with the land in equity is referred to later on.

The expression " interest " or " interested " in land occurs in
every one of the enactments by which the caveatable interest is de-
fined, except in the Leeward Islands.06 — where a caveat may be en-
tered by " any person entitled to stay the registration/' The latter
phrase would seem to mean that a claim to any defined right relat-
ing to the land and enforceable against its owner will be sufficient
caveatable interest. This is in fact a possible interpretation of
" interest " in all jurisdictions, and has received judicial sanction
in at least one — Federated Malay States,67 where the " wide and
comprehensive " wording of the enactment is referred to. That the
words of a corresponding enactment authorizing the entry of
caveats " should have a wide interpretation given to them " has also
been laid down in New Zealand.68 The necessity for protecting
unregistered interests by means of injunctions,69 and the close re-
semblance that the caveat bears to an injunction,70 justify the gene-
ral principle of giving an extended meaning to the " interest "
which will support a caveat. It must of course be borne in mind
that (as already pointed out ante, p. 173) "interest" includes a
claim to an interest; the whole system of caveats is founded on the
principle that they exist for the protection of alleged as well as
proved interests,71 and of interests that have not yet become actual
interests in the land.72

66 L. Is. 1886 (1914), s. 112.

67 In re Registration of Caveat (1908) limes F. M. S. 114. the passage
apparently being adapted from Aust. Torr. Syst. 1035. The section (s.
68) interpreted in this ease is now F. M. S. 1911, s. 70.

68 In re BielfeU (1894) 12 N. Z. R. 596.
"McEacharn v. Colton [1902] A. C. 104.

70 Aust. Torr. Syst. 1035, 1036, 1039; In re Registration of Cavwt
(supra), approving of the statement in Aust. Torr. Syst. on this point. In
Concord Munic. District v. Coles (1905) 3 C. L. R. 96, 108, it was said:
" The lodging of a caveat [on initial registration] is really in the nature of
the initiation of litigation :" this seems to apply equally to a caveat against
transactions after the land is registered.

"-This seems to be the principle underlying Imperial Elevator Co. v.
Olive (1914) 29 West. R. 339 (Sas.), where (at p. 348) Aust. Torr.
Syst. 1036 is quoted.

72 As in cases like Loke Yew v. Port Swettenham Rubber Co. [1913]
A. C. 491.

Sect. 4] PROTECTIVE ENTRIES. 185

It may be taken as settled that any right which would amount to
an actual equitable interest — and a fortiori a legal interest — in the
land (if unregistered) under ordinary English law, or a claim to
such a right, js, subject to some exceptions already noticed, a cave-
atable interest.73 In the common case of a contract for the sale of
land, the purchaser has an equitable interest sufficient to support a
caveat; if he is not yet entitled to a transfer and has therefore no
lien upon the land, he is still entitled to enter a caveat.74

A right to cut standing timber is an interest in land that
can be protected by a caveat.75 A right to be relieved from
forfeiture of a lease is not such an interest as can be so
protected.7'5 What is in general an equitable interest in land is
a question of general law which crops up from time to time in all
jurisdictions, apart from registration of title.77 Ordinarily, an op-
tion of purchase is to be regarded as an actual interest in the land,
this being a right enforceable by the purchaser and capable of be-
coming a binding contract at his will without any further act on
the part of the vendor.7* And a right under a contract may be
considered to be an equitable interest in land, sufficient to support
a caveat, even though the contract is binding (and the interest
therefore valid) only as between the parties and not as against a
third person — for instance, the vendor of one of the parties.79 The
interest of a partner, where the land was partnership assets, has
been held sufficient to support a caveat,80 but it is not every con-
tract of partnership that gives a partner an interest in the land it-
self.81 Covenants and conditions running with the land in equity 82
must be considered as interests in land : these therefore should be
susceptible of protection by caveat, and this has been impliedly re-
cognized in some Manitoba statutes.*3 The interest of the next of

71 See Aust. Torr. Syst. 1035.

74 II ill v. Kcene (1903) 23 X. Z. R. 404.

75 Conolhj v. Xoone [19121 S. R. Q. 70: other cases in Aust. Torr. Syst.
1035. And see On. 1914, s. 77.

*/■ re Graves (1905) 7 X. Z. Gaz. 318.

"Illustrations are: Morland v. Hales (1910> 30 X. Z R- 201 : Howard
v. Miller [1915] A. C. 318: Central Trust Deposit Co. v. .Snider [1916]
1 A. C. 266: King v. D. Allen d Sons [1916] 2 A. C. 54; Mant v. Deputy
Federal Commr. (1915) 20 C. L. R. 564.

"MoHmmd v. Hales, supra.

13McKillop v. Alexander (1912) 45 Can. S. C. R. 551: Re Green
Car. at (1912) 23 West. R. 57 (Sas.).

" Re MacCullough and Graham (1912) 21 West. R. 349 (Al.).

n Mant v. Deputy Federal Commr., supra.

"As in Rogers v. Hosegood [1900] 2 Ch. 388, and In re Nisbet and
Potts' Cont. [1906] 1 Ch. 3S6.

"Can. Torr. Syst. 366. Other similar amending Acts are: (1913)
3 Geo. 5. c. 56. adding ss. 169 and 170 to R. S. M. c. 148 (repealed ReaJ

186 EQUITABLE INTERESTS. [Ch.v.

kin to a deceased registered owner is sufficient to support a caveat,84
but not the mere expectation (during the life of the owner) of
succeeding as next of kin to the property.85

The difficulty with regard to caveats is to determine whether,
and to what extent, an interest which is not an actual equitable
interest in the land at all, but a purely personal and contractual
right relating to the land, can be protected by caveat. As pointed
out above (p. 184) the view that "interest," for the purpose of
the right to enter a caveat, is any defined right or claim relating to
the land and enforceable against its then owner, has received some
judicial sanction. Having regard to the intimate connexion be-
tween caveats and litigation, it is submitted that any claim which
would entitle the claimant to initiate litigation' in respect of the
land should entitle him to enter a caveat, whether the claim be based
on an equitable interest or only a contractual right. Further judi-
cial sanction for this view is contained in Manitoba and Saskatche-
wan cases, where it is said: "According to the principles of the
Torrens system any right conferred by contract relating to land
against the registered proprietor is a sufficient e interest ' to support
a caveat." 86 The cases relied on 87 were however concerned with
securities for payment of money ; no recent case seems to be available
as shewing that such an interest as (for instance) a right to affix ad-
vertisements to the wall of a building — a .mere personal obligation 88
— could be protected by a caveat. The Australasian cases against
such an interest being caveatable still stand,89 and to them must be
added a later case in which it was held (but wrongly, it is sub-
mitted) that the interest of a covenantee, under a covenant not to

Property Act) ; (1914) 4 Geo. 5, c. 90. ss. 7-13 (M. 1914). These enact-
ments for the most part correct errors in building restrictions protected
by caveat ; they would not in England be inserted in public Acts.

'"Colonial Invest. Co. v. Cobain (1888) 14 V. L. R. 740.

mIn re Annand (1891) 17 V. L. R. 108. With this case compare
In re Lind [1915] 2 Ch. 345.

86 Thompson v. Yockney (1912) 22 West. R. 863, 865 (Man.), affd. 25
West. R. 602, and again affd. (Yockney v. Thompson) 50 Can. S. C. R. 1 ;
Imperial Elevator Co. v. Olive (1914) 20 West. R. 339 (Sas.) ; Coast
Lumber Co. v. McLeod (1914) 29 West. 357 (Sas.). In the first two of
these cases pp. 785, 1035, 1037 of Aust. Torr. Syst. were cited : the pas-
sage quoted in the text above is based on Aust. Torr. Syst. 1037, and is
reproduced in Imperial Elevator Co. v. Olive from Thompson v. Yockney.

"In re Registration of Caveat (1908) Innes F. M. S. 114; Yockney
v. Thompson, supra; Imperial Elevator Co. v. Olive, supra; Coast Lumber
Co. v. McLeod, supra.

s*King v. D. Allen & Sons [1916] 2 A. C. 54.

*9Ex p. Johnson (1868) 5 W. W. & a'B. L. 55; Staples d Co. v.
Corby (1900) 19 N. Z. R. 517. These cases are criticized in Aust. Torr.
Syst. 800. 803, 1037-1039.

Sect. 4] PROTECTIVE tfA TRIES. lg~

let stables for livery business, could not be protected by caveat.90
The view above suggested, and the criticism of the Australasian
cases, receive further support from the fact that in practice these
cases seem not to have been followed in Canada.91

A caveat, as already stated ante, p. 172, performs the functions
which in England, Ontario, and Ireland, are performed separately
by caution, inhibition, and registered notice or incumbrance. The
exact effect and operation of a caveat varies according to circum-
stances, and is not quite the same in all jurisdictions. One differ-
ence is that in some jurisdictions the existence of the caveat pre-
vents any registration being effected in respect of the land ; this is
the case in New South "Wales, Queensland, Tasmania, Papua, Trini-
dad-Tobago, Leeward Islands, and British Honduras.92 But there
seems no reason why a caveator's claim should not be framed so as
to allow — as for instance where the caveat was only required for
protection of a building restriction — registration of transactions
that would not interfere with the claim, as in other jurisdictions.
Even if a caveat is valid, it will not be allowed to prevent registra-
tion of an interest admittedly prior to the caveator's interest, and
may therefore have to be removed altogether.93 In jurisdictions
other than those above referred to removal of the caveat would not
always be necessary, for registration of transactions is expressly
permitted to be made subject to the rights of the caveator. But
registering a transaction is not in any way a recognition or con-
firmation of the caveator's claim.04 This will not prevent an in-
junction being granted, under proper circumstances, against the
property being dealt with pending the settlement of the caveator's
claim.96

Although it has been said that a caveat " operates as notice to all
the world " of the equitable interest referred to in it,96 this opinion
is contrary to actual decisions,97 and the better view seems to be

M Woodberry v. Gilbert (1907) 5 Tas. R. 7.

1,1 Can. Torr. Syst. 364. 365; Manitoba statute (1914) 4 Geo. 5, c. 90,
ss. 7-13, referred to in note 83.

92 N. S. W. 1900. ss. 72-74, 97, 98; Q. 1861, ss. 98-103, and 1877, ss.
36-40 ; Tas. 1862, ss. 82-85 ; P. 1913, ss. 63-70 ; Tr. 1902, ss. 116-119 ; L. Is.
1886 (1914), ss. 111-122; B. H. 1914, sch. D.

93 In re Stcain's Caveat [1902] S. R. Q. 120.
"Pearson v. O'Brien (1912) 20 West. R. 510 (Man.).
mBashford v. Bott (1909) 12 West. R. 428 (Sas.) ; Can. Torr. Syst.

390. "Butler v. Fairclough (1917) 23 C. L. R. 78, 91.

07 Grace v. Kuebler [1917] 1 W. W. R. 1213 (Al.). relying on Moa V.
Bell (1901) 27 V. L. R. 82, and citing Aust. Torr. Syst. 919 and Own. &
Inc. 170. 204. affd. (1917) 56 Can. S. C. R. 1 ; Pearson v. O'Brien (1912)
20 West. R. 510, 527, quoting Aust. Torr. Syst. 886, 1040, and Own. &
Inc. 131.

188 . EQUITABLE INTERESTS. [Ch. V.

that the entry of the caveat merely serves as notice to persons search-
ing the register, the precaution of searching being neglected at their
own risk. The caveat, in fact, does not add to, but merely protects,
existing rights.9**

The form of the caveat and the procedure for determining the
rights of the caveator need not be referred to here in any detail."
The interest of the caveator must of course be identifiable by the
registrar and described with reasonable certainty.1 In most juris-
dictions the enactments forbid a second caveat being entered in
respect of the same interest, and where not thus expressly forbidden
such a second caveat would seem to be readily removable by the
courts. The removal or continuance of a caveat may often depend
on the result of a vendor and purchaser dispute.2 In South Aus-
tralia and Manitoba special rules of procedure are enacted with re-
spect to caveats.3 In all nineteen jurisdictions, except British
Columbia and British Honduras, the enactments on the subject in-
clude provision for compensation being had — by action or summary
proceeding — on the part of the owner of the land as against the
caveator in case the caveat has been improperly entered.4 In some
jurisdictions any such right to compensation or damages is ex-
pressly barred in respect of a caveat entered by the registrar;5 but
this exception is probably unnecessary. British Honduras is singu-
lar in giving a right of action against the registrar for improper
removal of a caveat through his " carelessness or fraud." 6

Notwithstanding differences in the wording of the statutes, and
verbal inconsistencies in judicial dicta, the effect and operation of
a caveat seem alike in all nineteen jurisdictions. The two principal
bodies of statutes and cases are the Australian and Canadian,7 and
the substantial identity of the operation of a caveat in these groups
is supported by the many references made in Canadian cases to the
Australian statutes and cases. There is one peculiarity common
to the statutes of Manitoba, Alberta, and Leeward Islands,8 which

93 Butler v. Fairclough (at p. 84) and Grace v. Kuebler, supra.

M See Aust. Torr. Syst. 1040-1043 ; Oan. Torr. Syst. 371-387.

1McKillop v. Alexander (1912) 45 Can. S. C. R. 551, 580. A mort-
gagee's caveat was held good in Merchants' Bank of Canada v. Hastie
(1914) 27 West. R. 764 (AL).

2 Tremblay v. Dussault (1913) 23 Man. R. 128 ; Fox v. Reid, ib. 152.

3 S. A. 1886, sch. 21 ; M. 1913, scb. L.

4 See Aust. Torr. Syst. 749.

5 An illustration is Smith v. Registrar-Uencral 1 1909] S. A. R. 1.

6 B. H. 1914, sch. D, r. 10.

7 Aust. Torr. Syst. 1039. 1040; Can. Torr. Syst. 388-401. Mr. Thorn
thinks (p. 398) that "in the last analysis" there is "a radical difference
in principle " between the Australian and Canadian view of caveats.

8M. 1913, s. 151 : Al. 1906, s. 97; L. Is. 1886 (1914), s. 113.

Sect. 4] PROTECTIVE ENTRIES. Ig9

may be referred to here. In Manitoba and Alberta 8 the entry of
the caveat has " the same effect as to priority " as if the protected
transaction had been registered, and the reference in the Leeward
Islands statute to the " registration " of the caveat seems to mean
the same thing. But the same view of the effect of a caveat has
been held in other jurisdictions.10 The difference between Mani-
toba and Alberta on the one hand, and the other jurisdictions, as
to the operation of a caveat, is thus not so important as might
appear at first sight.11

As to what a caveat is and does, the result of numerous cases
may perhaps be summed up thus: A caveat is in the nature of a
statutor}' injunction,12 and is a means of conveying notice to persons
who propose to deal with the owner that there are other claims af-
fecting the properly :13 in itself a caveat makes a claim or right
neither better nor worse,14 but marks a point of time at which
the merits of competing interests may be judicially determined.13

As to how competing interests are affected by the entry of a
caveat, the result of the cases seems to be as follows: The statutory
permission to enter a caveat will be regarded as a substantive addi-
tion to the ordinary rules of jurisprudence, and these rules (as thus
supplemented) will govern the question of priority of interest;18
in the event of a complete equality of merit other than priority in
time of creation of interest, priority of interest will be given to the

» Stephen v. Gray (1913) 25 West. R. 55 (AL).

" In re Scanlan (1887) 3 Q. L. J. 43: McKillop v. Alexander (1911)
45 Can. S. C. R. 551 (appeal from Saskatchewan).

u Judicial opinion in Manitoba and Alberta seems to be divided as to
the extent of the difference: Stephen v. Gray, supra; Pearson v. O'Brien
(1912) 20 West. R. 510 (Man.).

"Barry v. Heider (1914) 19 C. L. R. 197. 212. citing Aust. Torr.
Syst. 886; Pearson v. O'Brien, supra, at p. 527, quoting Aust. Torr. Syst.
8S6 — " A caveat is not to be regarded as notice to all the world . . .
but only as a means of conveying notice, and as a statutory injunction
against dealing with the property."

"Pearson v. O'Brien, supra.

"Pearson v. O'Brien, supra, quoting Aust. Torr. Syst. 1040 — "A
caveat is worthless unless there is in existence at the time of its entry on
the register an enforceable right of some kind relating to the land ;" Gilbert
V. Ullerich (1911) 16 West. R. 490. 17 ib. 157 (Sas.) ; McKillop V.
Alexander, supra.

"In re Scanlan (1888 » 3 Q. L. J. 43: McKillop v. Alexander, supra;
Coast Lumber Co. v. McLeod (1914) 29 West. R. 357 (Sas.) ; Imperial
Elevator Co. v. Olive, ib. 339.

" General Finance Co. v. Perpetual Executors Assoc. (1902) 27 V*. L. R.
739; Barnes v. James, ib. 749: Butler v. Fairclough (1917) 23 C. L. R.
78; imof v. Peterson (1912) 21 West. R. 153 (Al.) ; Re Green Caveat
(1912) 23 West. R. 57 (Sas.).

190 EQUITABLE INTERESTS. [CH. V.

person who enters (or is the first to enter) a caveat.17 That the
existence of a caveat is really no more than a circumstance, merely
causing the ordinary rules applicable to the question at issue to be
supplemented accordingly, is shewn particularly by cases in which
the caveator was unsuccessful.18

Under many of the statutes official entries may be made on the
register for the protection of the Crown, persons under disability,
etc. But it is no part of the duty of the registrar to enter any
notification of the possibility of future charges arising under general
statutes, as for instance, in consequence of an owner being so regis-
tered as part of a merely voluntary transaction.19

17 There seems to be no reported case actually laying down this proposi-
tion, which represents the ideal position put by Mr. Thom (Can. Torr.
Syst. 398) as being the point where the Australian and Canadian views di-
verge. But if there be a caveat or caveats in existence, it would seem
to be impossible that on a completely even balance of merits any equity
should be given priority "independently of the Torrens Act" (Can. Torr.
Syst. 399), and thus the prior entry of a caveat would have to be given
some weight.

1S Illustrations are: Giles v. Lesser (1879) 5 V. L. R. 38; Friebe v.
Cullen (1879) 13 S. A. R. 35; North-West Construction Co. v. Valle (1906)
4 West. R. 37 (Man.) ; Gilbert v. Ullerich (1911) 17 West. R. 157 (Sas.) ;
Grace v. Kuebler [1917] 1 W. W. R. 1213 (Al.), 56 Can. S. C. R. 1.

19 Ex p. Cameron (1894) 15 N. S. W. 139; Ex p. Dettman (1918) 18
S. R. (N. S. W.) 545.

Sect. 1] SECURITIES GENERALLY. 191

CHAPTER VI.— MORTGAGE AND OTHER MONEY
SECURITIES.

SECTION 1. — SECURITIES IN GEXERAL.

The change made by registration of title in the methods by
which land may be made security for money payments is quite as
great as are the changes with respect to the proof of ownership and
the protection of equitable interests. Registration of title may be
said to have made possible a system of registered charges " doing
away with our present anomalous system of mortgages, under which
the mortgagee is in law the owner of the land when, in fact, he is
only owner of money for which the land is security." 1 Such a sys-
tem of registered charges, if properly carried out, would result in
mortgages — as in Roman-Dutch and other branches of the civil law
— being " treated as what they really are, charges to secure debts
and not make-believe conveyances." 2 Eventually, perhaps, " the
clumsy mortgage by way of " conditional sale " will give way alto-
gether before this " simpler method of securing debts."8

Although in all twenty-two jurisdictions the substitution of a
charge for a conveyance is rendered possible, it is only in the ma-
jority that the statutes have provided complete machinery for the
substitution being made effectively. The number of propositions
that apply equally in all jurisdictions on this point is surprisingly
small. Three of these may be stated here.

1. Mortgages are recognized as charges on, and interests distinct
from, the registered ownership, and are not treated as transactions
in which the registered ownership has to be vested in the mortgagee.
This is true even in British Honduras, where mortgages are barely
referred to in the statute, though " land " is expressly distinguished
from " incumbrance."*

2. Equitable mortgages by deposit of certificate of title are ex-
pressly or impliedly recognized, either by the statutes themselves
or by judicial decisions whose reasoning applies equally in more
jurisdictions than one. The only exception is that in New Zealand

1 Own. & Inc. 16. quoting from Report of 1870 on the Land Registry
Act

■Jour. Oomp. Leg. vii. 39 (1906), lecture on Roman-Dutch law by
Frederic Mackarness.

•See Poll. & Mait. Hist. Eng. Law (2nd Ed.) ii. 124, as to what
would have happened in the 13th century, "if the Jews hnd not been ex-
pelled from England." * B. H. 1914, ss. 1. 7. son. D r. 12.

192 MORTGAGES, rfc. [Ch. vi.

it seems probable that a merely personal interest, and not an interest
in the land, is created by the deposit, as mentioned ante, p. 178;
and see post, Sect. 4 — " Equitable mortgages." Both in British
Columbia and British Honduras the statutes clearly imply the
possibility of conferring a right of some sort by mere deposit of
the certificate of title.5

3. In none is there any statutory authorization of mortgages
by transfer of the registered ownership of the land to the mortgagee
— though sub-mortgages by transfer of the mortgage are author-
ized ( post, Sect. 2, Sub-sect. 2 ) . Mortgages by transfer of the land
however (in the absence of enactments prohibiting non-statutory
transactions) are valid, and in some jurisdictions are customary in
certain circumstances.6

GROUP 1 — BRITISH COLUMBIA AXD BRITISH HONDURAS.

The statutes of British Columbia and British Honduras con-
tain no provision for making any statutory mortgage or charge
efficacious. In British Honduras it seems to be contemplated that
all mortgages shall be left unregistered and be merely protected by
caveat; no form of mortgage or charge is prescribed or referred to.7
In British Columbia no form of mortgage or charge is prescribed;
registration is essential, and operates as notice and confers priority
and a prima facie title, but nothing more is said as to the operation
of registration on mortgages specially.8 In both jurisdictions the
statutes refer to mortgages and also other incumbrances.

The result of the enactments making the registered title of the
owner of land conclusive seems to be that mortgages and other
charges occupy much the same position as in jurisdictions where
they are more specially provided for. Thus, the validity of all
registered incumbrances as against the owner of the land, and their
priority inter se, depend on their existence being notified on the
face of the register and thus giving notice of their contents — as in
the case of statutory mortgages in other jurisdictions.0 The pow-
ers and remedies conferred on the mortgagee will of course be con-
ventional, since none are given by the statutes.

The right to indemnity for loss through wrongful registration
of another person extends to those who have only an " interest " in
the land, and this seems to include the case of a mortgagee or owner

5B. C. 1911, s. 33; B. H. 1914, s. 31.

6 Building society mortgages in Victoria illustrate this : Aust. Torr.
Syst. 796, 943. 7 See Note 4.

8 B. C. 1911. ss. 2, 29. 35A, 72, 73, 104.

9 In re Goldstone's Mortgage [1916] N. Z. R. 19, 489, referred to post,

Sect. 11 SECURITIES GENERALLY. 193

of any other incumbrance, as well as the owner of the land,10 This
right of indemnity seems also to imply that the State warranty of
title extends to mortgages as well as the ownership of the land.

GKOUP 2 — ENGLAND, ONTARIO, IRELAND.

These three jurisdictions differ from all others in having express
statutory provision for transactions off the register, that is, in non-
statutory form and unregistered. There is also provision, which
in the case of England is very ample, for statutory- mortgages and
other charges; these are dealt with in subsequent Sections of this
Chapter. The prescribed form of statutory charge in England and
Ireland must be under seal. Sealing in Ontario is expressly made
unnecessary.11

The enactments in all three jurisdictions agree in recognizing
registered land and a registered charge on it as distinct entities, and
in expressly authorizing transactions with each — land and charge.1-
Though the language is not identical, it is provided substantially in
the same way by each enactment that the transactions off the register
are liable to be defeated by registered transactions for value, unless
these off register transactions are themselves protected by re-
strictive entries on the register — including (in Ireland) registration
as " burdens" in a subsidiary register. Mortgage and other securi-
ties seem to be included in the " estates, rights, interests and equi-
ties," and in Ireland " powers " 13 that may be created, but the
" effect and operation of a common law unregistered mortgage " 14
is not perhaps (apart from its liability to be defeated for want of a
protective entry) the same in all three jurisdictions.

The English enactment differs from the Ontario and Irish in
expressly including the registered owner among the persons who
may create interests off the register, and this has been construed as
a confirmation of the view that the common law and technical
" legal estate " may be dealt with alongside the registered owner-
ship.15 This difference, and other minor differences in the lan-
guage of the enactments, may perhaps be sufficient to justify the

M B. C. 1911. s. 123 ; B. H. 1914, ss. 15. 16. The decisions under the
Australian statutes seem to apply.

u Ens. 1903-8 Rules, r. 107 : Own. & Inc. 183, 329. I. 1910 O. 4, r. 10.
ff. 9. 10. On. 1914, s. 102.

"Eng. 1875. s. 49; I. 1891. ss. 44. 95: On. 1914, s. 68.

• " Right " in I. 1801, s. 44, includes, by s. 95, " estate, interest,
equity, and power."

14 Capital and Counties Bank v. Rhodes [1903] 1 Ch. 631, 657.

M Capital and Counties Bank v. Rhodes, supra, at p. 656.

R.T.L.— 13

194 MORTGAGES, <Cc [Cn. vi.

opinion that the English case cited does not apply to the Irish and
Ontario enactments, and that in these two jurisdictions an unregis-
tered mortgage purporting to pass the old legal estate would not
have that effect.16

The separation of ownership of the land from mortgages is of
course weakened by a continuance of the old system of legal mort-
gages by conveyance of the fee simple for a term of years. With
respect to mortgages and other securities effected by the statutory
method of a charge, " land " and " charge " are kept distinct in all
these jurisdictions, and the charge is treated throughout the stat-
utes as in the nature of a subsidiary ownership.17 The statutory
registered charge can be made to operate either as a mortgage (its
most usual function) or as a security of another kind, and for secur-
ing payment of either gross or annual sums.18 Enactments form-
ing part of conveyancing statutes, and relating to mortgages and
charges of unregistered land, are also incorporated and made applic-
able to these charges.19

Provision is also made for the registration of mortgages existing
at the time of initial registration as incumbrances on the land, and
these are as far as possible placed upon the same footing as regis-
tered charges in statutory form, but without any alteration in their
priorities inter se.20 The remedies of the mortgagee will not be
affected by the initial registration, and he will have priority over
any subsequent statutory charge notwithstanding the registration
of the latter, and would on exercising his power of sale be entitled
to have the registered ownership vested in the purchaser from
him.21

The interest taken by the owner of a registered charge in statu-
tory form appears to be a true legal interest, and not a merely
equitable charge.22 The question is more difficult in jurisdictions

18 Capital and Counties Bank v. Rhodes is criticized in Own. & Inc.
145. It has been decided under an Australian statute that such an unreg-
istered assurance in non-statutory form does not pass the technical legal
estate: Macindoe v. Wehrle (1913) 13 S. R. (N. S. W.) 500.

" For instance : Eng. 1875, s. 41 ; On. 1914, s. 56 ; I. 1891, s. 43.
18Eng. 1875, ss. 22, 26; 1897, s. 9 (1, 3). On. 1914, ss. 30, 31 (2).
I. 1891, s. 40. And see Own. & Inc. 114, 122, 188.

19 Eng. 1897, s. 9 (1, 2) ; On. 1914, ss. 30 (6), 31 (2) ; I. 1891, ss.
40 (4, 5), 41 (4).

20 Eng. 1875, s. 19; 1897, s. 22 (6) ; 1903-8 Rules, rr. 216. 217, 175-
178, 181. On. 1914, ss. 26, 27. I. 1891, ss. 29, 45, 46. The status quo
ante of priorities is illustrated by an Australian case : Davidson v. O'Hal-
loran [1913] V. L. R. 367.

21 In re Purvis [1907] 1 I. R. 447, under s. 29 of I. 1891, but applicable
both in England and Ontario. See Eng. 1903-8 Rules, r. 151 ; Own. & Inc.
163.

*Own. & Inc. 101-105, 114-122; L. Q. R. xxiii. 68 (1907)— "The
Mortgage-Charge of the Land Transfer Acts."

Sect. 1] SECURITIES GENERALLY. 19 5

where registration with " possessory " title is permitted, but if the
incumbrance is created by an owner whose title to his land is fully
warranted as against unregistered interests, to call such an incum-
brance " equitable " seems an unnecessary debasing of the currency
of judicial terminology.

The warranty of title conferred by the statutory conclusiveness
of the register has reference primarily to the owner of the land it-
self and not to incumbrancers. In England, Ireland, and Ontario 23
this is accentuated by the form of the enactments making the regis-
ter conclusive. In Ireland a general enactment makes the register
" conclusive evidence of the title of the owner to the land as ap-
pearing thereon " (s. 34), and there are also enactments in all three
statutes expressly conferring a fee simple, &c, on the first regis-
tered owner of the land and upon a transferee for value, " free from
all other " interests. In England and Ireland the register is not
expressly made conclusive in favour of the mortgagee.24 Only in
Ontario does the mortgagee take " a charge upon the interest of the
chargor as appearing in the register . . . free from any unregistered
interests in the land." 25 Transferees of a charge are in a better
position, but only in Ireland is the register expressly made conclu-
sive in favour of such a transferee and in favour of a transferee of
the land from a mortgagee selling under his power; in Ontario the
transferee of a charge takes " free from any unregistered interests
therein," but in England such a transferee is merely " not affected
by any irregularity or invalidity in the original charge itself of
which " he was " not aware." 26

Thus, in England and Ireland the registered mortgagee gets no
express warranty of title beyond that of his mortgagor, the registered
owner of the land, and must largely rely on his own mortgage being
valid independently of registration ; in England a transferee of the
mortgage is in the same position, except that his title is not de-
feated merely by the original charge having been (unknown to him)
invalid. Hence a transferee in England, duly registered, of a reg-
istered charge which is itself valid but is transferred by a forged in-
strument of transfer, gets no warrant}* of title; he can be removed
from the register and is not entitled to indemnity from State funds.27

21 Eng. 1875, ss. 7. 30 ; I. 1891, ss. 30, 34, 36 ' On. 1914, ss. 10, 42.

zlAtt.-Gen. v. Odell [1906] 2 Ch. 47, 72, 73, 78.

-* On. 1914, s. 30 (4).

"Eng. 1875, ss. 27, 40 (am.) ; On. 1914, ss. 35, 54: I. 1891, ss. 40, 41,
The Ontario case of Dodds v. Ilarper (1916) 37 O. L. R. 37. -where the
transferee got a better title through registration than the original mortgagee
had. would apply in England.

17 Att.-Gcn. v. Odell [1906] 2 Ch. 47. See Chap. IV., Seet. 9 ante,
p. 144. In Ireland the transferee of a charge could apparently, in a
case like Att.-Gen. v. Odell, recover indemnity: I. 1891, s. 93 (1) (c).

196 • MORTGAGES, dc. [Ch. vi.

This would not necessarily be so in Ontario and Ireland; the ques-
tion depends to some extent on whether there is any difference as to
the effect of registration between an invalid instrument of transfer
and an invalid instrument of charge. It may be that the warranty
of title given to a registered transferee for value covers the case of
the instrument of transfer being a forgery; if this is so, then the
forged instrument of charge in Ontario and Ireland would not pre-
vent the mortgagee having a conclusive title by registration.

In these jurisdictions the same principle (enunciated in a New
Zealand case),28 seems to apply as in Australia, &c, according to
which the validity of registered incumbrances as against the owner
of the land, and their priority inter se, depend on their existence
being notified on the face of the register and thus giving notice of
their contents.

The English enactment (s. 22 as amended) expressly makes
these statutory charges subject to the provisions relating to " quali-
fied or possessory title." This seems to be implied in the statutes
both of Ontario and Ireland; it is not intended that a mortgagee
shall in general get any better warranty of title than his mort-
gagor.29

The right to indemnity for " loss," through the conclusiveness of
the register operating in favour of the wrong person, in all three
jurisdictions extends to the case of a charge as well as land being
the property lost.80 This right of indemnity in itself seems to
imply that the title to a mortgage, &c, is warranted, as well as the
title to the land.

All three jurisdictions have enactments which provide that a
title to registered " land " adverse to the registered owner shall not
be gained merely by long possession, though in England and Ire-
land there is a right to rectification of the register on this ground.81
But, apparently, land only, excluding charges or incumbrances
on it, seems to be the subject of these enactments; accordingly,
it would seem that in England, Ontario, and Ireland, the limita-
tion Acts, and their effect in barring rights in favour of owners
of registered land as against owners of incumbrances thereon, re-
main in operation.

28 In re Goldstone's Mortgage [1916] N. Z. R. 19, 489.

29 A possible exception might occur in the case of an incumbrance
created before, and registered after, initial registration of the land : see
Eng. 1903-8 Rules, r. 175 ; Br. & Sh. 427 ; Own. & Inc. 123.

80 Eng. 1897, s. 7 ; Att.-Gen. v. Odell, supra ; On. 1914, s. 124 ; I. 1891,
s. 93.

31 Eng. 1897, s. 12; On. 1914, s. 29; I. 1891, s. 52. See Chap. III.
ante, p. 87.

Sect. 1] • SECURITIES GENERALLY. 19;

It seems clear that in all three jurisdictions the same kind of
equitable rights can be created in mortgages and charges as in the
land itself, and that these rights can be protected by cautions and
other restrictive entries. This opinion is based on the provision
made for transactions, registered and unregistered, with charges.32
The transfer of charges has already been referred to (ante, p. 195).
Other provisions include the creation of unregistered interests in
charges, securities by deposit of charge certificate (in England and
Ireland) and sub-charges (in England). No provision is made for
sub-charges in Ireland, but the practice of creating them exists;
in Ontario both sub-charge and deposit of charge certificate would
seem to be practicable and valid, notwithstanding the absence of
any express provision relating to them in the statutes. The inter-
ests that may be protected by cautions and other restrictive entries
include interests in incumbrances as well as in the land itself
(Chap. V. Sect. 4 ante, p. 182).

Express provision is made in all three jurisdictions for charges
created subsequently to initial registration taking priority according
to date of registration, in the absence of any special right to the
contrary.33 Provision is also made with respect to the priorities
inter se of incumbrances existing at the time of initial registration,
in England and Ontario, and such priorities have in practice to be
determined in Ireland.34 In England their relative priorities are
not affected by the order in which these incumbrances are entered
on the register, or by the fact of such entry, though subsequent
transactions with them are governed — in the absence of special
rights — by priority in registration (ante, p. 194). In Ontario
there is a somewhat similar distinction, but priority on the whole
is determined by reference to the general Registry Act, under which
these incumbrances will usually have been already registered.

Powers of realization by sale or foreclosure, powers of entry, and
the benefit of implied covenants, are expressly conferred on regis-
tered owners of a charge in England and Ontario, and in addition
certain provisions of conveyancing statutes are made applicable to
registered charges ; in Ireland the same powers are in effect con-
ferred by the references to the Conveyancing Acts, though foreclos-

■Eng. 1S7R, s. 49: 1897. ss. 8 (6). 22 (6) (c) : 1903-8 Rules, rr.
17S-1S1. 243-251. On. 1914. ss. 54, 68 (4). I. 1S91, ss. 44 (2). 81 (5) ;
Bro. & Gl. 62 et seq.

33 Ens. 1875. s. 28: 1903-8 Rules, rr. 111-113. 171-173. On. 1914. ss. 36,
55. T. 1891. s. 49: 1910 O. 4. r. 31.

MEng. 1897. s. 22 (6) (r) : 1903-8 Rules, rr. 175. 176. On. 1914,
s. 26. Bro. & Ol. 165.

198 MORTGAGES, dc [Cii. vi.

ure is in practice not often resorted to.35 In the case of securities
effected otherwise than by the statutory registered charge, the in-
cumbrancer would have his ordinary remedies apart from the
registration statutes. But in any case of a security from a regis-
tered owner the mortgagee or creditor would sooner or later almost
certainly have either to get his security registered, or to have the
register rectified by removal of the name of the registered owner
his mortgagor or debtor.36 Foreclosure is effected by proceedings in
the courts, just as in the case of unregistered land. In Ireland no
mention is made of foreclosure by the statutes or rules. In Eng-
land and Ontario provision is made for entry on the register of the
result of the foreclosure action.37

GROUP 3 — THE AUSTRALASIAN (NINE) AND REMAINING EIGHT JURIS-
DICTIONS.

The seventeen jurisdictions of this group are : The nine Aus-
tralasian, four Canadian (Manitoba, Saskatchewan, Alberta, North-
West Territories), three West Indies (Jamaica, Trinidad-Tobago,
Leeward Islands), and Federated Malay States. The statutes
here are all modelled, directly or indirectly, on the early South
Australian statute of I860,38 the three jurisdictions that exhibit the
most considerable divergence from the general type of statute be-
ing Fiji, Federated Malay States, and Leeward Islands.

Two of the features common to all seventeen sets of statutes are
these: (1) Statutory forms of securities for money are prescribed,
which are not under seal 39 and only take full effect by registration ;
(2) No express permission is given for the creation of unregistered
interests. These statutory securities are of two kinds, one operating
as a mortgage proper (in many statutes called a " mortgage ") and
securing money lent (usually with interest), the other operating as
a charge for securing payment of gross or annual sums (usually
without interest). The latter is, in many statutes, called an "in-
cumbrance," but as explained ante, p. 21, the use of this word
in this sense is avoided here as much as possible.

^Eng. 1875, ss. 22-27; 1897, s. 9 (1, 2) ; 1903-8 Rules, r. 164; Own.
& Inc. 122, 190, 195. On. 1914, ss. 30-35; 1911 Rules, r. 27. I. 1891, s.
40; Bro. & Gl. 153.

36 An illustration is Weymouth v. Davis [1908] 2 Ch. 169. And see
Prec. Reg. Land, 154.

37Eng. 1903-8 Rules, r. 164; On. 1911 Rules, r. 27 (4).

3sAust. Torr. Syst. 33, 37.

38 An anomalous exception occurs in Queensland and Papua instru-
ments of transfer and charge: Q. 1877, sch. T; P. 1913, sch. 7; Aust. Torr.
Syst. 240, 940.

Sect. 1] SECURITIES GENERALLY. 199

The statutory mortgage or charge is throughout all the statutes
treated as an interest distinct from the land itself, and frequently
as an interest nearer in kind to leasehold than freehold. Most of
the rights exercisable with respect to the land itself can be exercised
over charges also, and the expression " land or charge," " leasehold
land and charge," &c, are common in the statutes. As in other
jurisdictions (ante, p. 191), the statutory charge (whether a
"mortgage" or other charge) is the subject of subsidiary owner-
ship.

In all seventeen jurisdictions, except the three — Papua, Fiji,
Federated Malay States — in which there is no voluntary initial reg-
istration, some provision is made for the recognition of mortgages
and other incumbrances existing at the time of initial registration.
In seven — New South Wales, Queensland, South Australia, Leeward
Islands (fully warranted title only), Saskatchewan, Alberta, North-
West Territories *° — the existing incumbrance simply appears on the
register as a " qualification " of the warranted title, and nothing is
said as to how it is to be enforced against the registered owner of
the land.41 In four — Victoria, Western Australia, Tasmania.
Manitoba 42 — the mortgagee may apparently disregard the mort-
gagor's registered title, and proceed as though the land were not on
the register ; but this does not seem to give the mortgagee power to
remove the land from the register, and in Victoria, Western Aus-
tralia, and Tasmania, the mortgagee may if he chooses treat his
security as though it were in statutory form. In Manitoba mort-
gages created pending the initial registration are given a special
position, and put nearly on the footing of statutory securities. In
the remaining three jurisdictions — New Zealand, Jamaica, Trini-
dad-Tobago 43 — the mortgagee (in New Zealand) "shall," and (in
Jamaica and Trinidad-Tobago) " may," exercise his remedies as
though the security were in statutory form. It would seem that in
all these fourteen jurisdictions mortgages created prior to initial
registration have, when entered on the register, as nearly a? pos-

♦»N. S. W. 1900, s. 33 (2) ; Q. 1861, s. 33 ; S. A. 1886. s. 77; L. Is.
1886 (1914). ss. 4, 8, 127: Sas. 1917, ss. 35, 46; Al. 1906, ss. 26, 29; Can.
1906, ss. 50. 59.

"Aust. Torr. Syst. 756. 757; Re Canadian Pacific Ry. (1899) 4 Terr.
R. 227.

«V. 1915, ss. 167-174; W. A. 1*93, ss. 124. 128; Tas. 1862, s. 32.
and 1893, s. 4; M. 1913, ss. 34, 105, 108.

•N. Z. 1915, s. 54; J. 1888, s. 109; Tr. 1902, ss. 34. 81. The word
" may " in the two latter statutes is not necessarily permissive, but
can be construed as peremptory and equal to " shall " : Crotcleij v. Temple-
ton (1914) 17 C. L. R. 4r>7.

200 MORTGAGES, tCc. [Ch. vi.

sible the same effect as statutory mortgages, except as to priorities
inter se — which are not affected.44

The interests of the owner of a registered mortgage or charge
in statutory form — whether for securing a mortgage debt or other-
wise— appears to be a legal interest.43 Only in Leeward Islands is
the question complicated — as in England, Ontario, and Ireland — by
registration with " possessory " title. Where the registration of the
land confers a full warranty of title, the essential element of defeasi-
bility (which is the hall-mark of an equitable interest) is absent.

In the seventeen jurisdictions, as in the other groups already
dealt with, the general principle undoubtedly is that it is the title
of the owner of the land that is primarily warranted by the conclu-
siveness of the register, and not the title of mortgagees. But the
enactments in the present group relating to the register's conclu-
siveness differ from those in the other groups, and are not uniform
among themselves. In Fiji and Federated Malay States 46 it seems
clear that the register is only conclusive in favour of each successive
owner of the land who is registered on the faith of a "genuine
transfer or transmission," and that a mortgagee or owner of an in-
cumbrance gets no warranty of title beyond that of his mortgagor
the registered owner of the land — he cannot rely completely even on
the latter's registration — and must rely on his own incumbrance be-
ing valid independently of registration. In the Leeward Islands 47
" all notings of mortgages " are " indefeasible," and it seems clear
from this that the register is (as to fully warranted title) conclu-
sive in favour of a mortgagee as well as the owner of the land, and
that the mortgagee accordingly has the benefit of a warranty of
title on his own account.

The proper construction of the statutes in the other jurisdic-
tions is not so clear. In the eight Australian jurisdictions other
than Fiji, and in Jamaica and Trinidad-Tobago, the enactments
relating to conclusiveness of the register include provisions which
seem to place securities for money on the same footing as the land
itself with respect to the effect of registration on the owner's title.
In South Australia, Victoria, Western Australia, and Jamaica,48
the enactments declare that the person named in any registered in-
strument as the owner of any interest is the registered owner of

"Daridson v. 0' Bailor an [1913] V. L. R. 367; In re Purvis [1907] 1
I. R. 447; ante, p. 194, as to England, Ontario and Ireland.

"Aust. Torr. Syst. 881, 941-945; ante, p. 194.

"Fi. 1876 (1906), ss. 14, 43; F. M. S. 1911, ss. 8, 28, 30.

47 L. Is. 1886 (1914), ss. 8, 127, sch. A "indefeasible."

*SS. A. 1886, ss. 3. 68, 69; V. 1915, ss. 51, 72; W. A. 1893, ss. 52,
68 ; J. 1888. ss. 43, 55.

Sect. II SECURITIES GENERALLY. 201

that interest; so in Xew South AVales, Queensland, Tasmania, Pa-
pua, New Zealand, and Trinidad-Tobago,49 with the addition that
the statutory conclusiveness of title as to the register extends to
" any entry thereon," whilst in Queensland and Papua " proprie-
tor " is defined as including the owner of a charge as well as of
land. The intention of these enactments seems to be to place a
registered mortgagee in as favourable a position with regard to
warranty of title as the registered owner of the land, and in several
cases the courts have referred to mortgagees as enjoying a statutory
protection under registration equal to that of the owner of the
land.50 These references, and the enactments just cited, are how-
ever subject to the rule which requires that a mortgagee must, in
order to get the full benefit of registration, have been registered on
the faith of a valid instrument.51 This is dealt with in Chap. 1 V,
Sect. 9 — " Forged and invalid instruments " ante, p. 143. The
title of a mortgagee has sometimes been referred to as standing or
falling with that of his mortgagor.52

In Manitoba, Saskatchewan, Alberta and North-West Terri-
tories, the enactments on the conclusiveness of the register do not
include those just mentioned (South Australia, Xew South Wales,
&c.) as putting incumbrances on a level with land with respect to
warranty of title. The interpretation clauses, under which " land "
includes " estates and interests in land," do not afford any assist-
ance, since the context in the enactments relating to conclusiveness
of title seems against the view that such interests as mortgages
are intended to be referred to. In a few instances " mortgagee "
is coupled with " purchaser " as entitled to rely on the register.53
But apparently the statutes in these four jurisdictions cannot be
construed so as to confer on a mortgagee any express warranty of
title beyond that of his mortgagor the owner of the land.

A mortgagee, however, in all those jurisdictions whose statutes
do not expressly make the register conclusive in his favour, is pro-

•N. S. W. 1900, ss. 35. 40, 42; Q. 1861. ss. 33, 34, 44, and 1877, s. 3;
Tas. 1862. ss. 33, 34, 40 ; P. 1913. ss. 5, 19, 20. 29 ; N. Z. 1915, ss. 34, 58,
68 ; Tr. 1902, ss. 39, 40, 47.

MOibbs v. Messer [1891] A. C. 248, 254; Finucane v. Registrar of
Titles ri9'02] S. R. Q. 75, 93; Bond v. McClay [1903] S. R. Q. 1, 11;
In re Goldstonc's Mortgage [1916] N. Z. R. 19, 26. citing Aust. Torr. Syst.
760. 945, as to registration of mortgages.

llOibbs v. Messer [1891] A. C. 248. 255. The rule there laid down
embodies, though without mentioning it, the enactment on the subject of
forged instruments in South Australia; S. A. 1886, s. 69 (2), ante, p. 144.

"See Seabrook v. McMullan (1908) 10 W. A. R. 47, 60.

"For instance, in Al. 1906. s. 106; Can. 1906, s. 144. But this may
have been per incuriam in adapting an Australian model : see Can. Torr.
Syst. 220. The corresponding enactment (Sas. 1909, s. 138) seems to
have been omitted from the present Saskatchewan statute.

202 MORTGAGES, dc. [Ch. vi.

tected as against his mortgagor the owner of the land, and as against
other incumbrances registered after his own by the principle which
has been thus enunciated in New Zealand:

. . . there is no certificate of title given to a mortgagee; what
he gets is an entry on the registry of the existence of a mortgage,
and that being registered, it is the duty of all persons dealing with
the property to examine the mortgage and see what it contains."

There are also other New Zealand cases in which the interest of
a mortgagee has been definitely treated (with respect to the war-
ranty of the registered title) as on the same footing as the owner-
ship of the land.55 The purchaser from a mortgagee has his title
fully warranted,56 and the cases 57 which decide that a lessee and his
transferee have each a title as fully warranted as in the case of full
ownership apply in principle to mortgages.

Another argument in favour of the view that the statutory war-
ranty of title extends to interests like mortgages, as well as owner-
ship of the land, is that a mortgage constitutes an interest for the
loss of which indemnity from State funds can be had, and the war-
ranty of title and right to indemnity are in the nature of inter-
changeable rights. This is dealt with in Chap. X, post. This right
of indemnity is given by the statutes in all seventeen jurisdictions
except Fiji and Federated Malay States. In Leeward Islands 5S the
person " aggrieved by the issue of a certificate of title " may obtain
" damages for the injury " ; the person " aggrieved " may well be a
mortgagee. In the other jurisdictions one way in which loss may be
suffered is by " deprivation " of land, and this loss or deprivation
may be in respect of land after it has been duly and properly placed
on the register, as well as by its being in the first instance improperly
placed there ; in every case this " deprivation," either expressly or
by the aid of an interpretation clause, refers to estates or interests
in the land — which will necessarily include mortgages and charges,
whilst in the Manitoba and Saskatchewan statutes " mortgage " is
expressly mentioned.59 Judicial decision in more than one juris-

54 In re Goldstone's Mortgage [1916] N. Z. R. 19, at p. 26. The de-
cision was affirmed in the C. A. (p. 489). The quotation refers to, and is
based on, Aust. Torr. Syst. 760.

56 Campoell v, Auckland District Registrar (1910) 29 N. Z. R. 332.

68 Anderson v. Davy (1882) 1 N. Z. «. C. 302.

57 Rutu Peehi v. Davy (1890) 9 N. Z. R. 134; Fels v. Knowles (1906)
26 N. Z. R. 604 ; Russell v. Registrar-General, ih. 1223.

CSL. Is. 1886 (1914), s. 19.

69 N. S. W. 1900. s. 126 ; Q. 1861, s. 126 ; S. A. 1886, ss. 3, 103 : Tas.
1862, s. 125; V. 1915, s. 246; W. A. 1S93, s. 196; P. 1913, s. 147; N. Z.
1915, s. 186; J. 1888, s. 136; Tr. 1902, ss. 2, 134; M. 1913, s. 154; Sas.
1917, ss. 2, 160; Al. 1906, ss. 2, 108; Can. 1906. ss. 2, 146.

Sect. 1] SECURITIES GENERALLY. •><);>

diction has also made it clear that indemnity can be recovered in
respect of such an interest as a mortgage, as well as of the land
itself.60

Only in five of the seventeen jurisdictions — New South Wales,
South Australia, New Zealand, Manitoba, Saskatchewan 61 — is it
provided by statute that a title adverse to the title of the registered
owner cannot be gained by mere length of possession subsequent to
initial registration, and th«s it is only in these five that the question
can be raised whether such an enactment applies to incumbrances
as well as the land itself. In Manitoba it is provided in the statute
itself that the enactment does apply to incumbrances (s. 117),
a'nd in New Zealand the law has been judicially laid down to the
same effect.62 The Manitoba enactment expressly saves the effect
of limitation Acts on the mortgagor's covenants, and this appears
to be implied in New Zealand. That a mortgagee's rights in respect
of the land are equally preserved against being barred by lapse of
time in New South Wales, South Australia, and Saskatchewan, is
perhaps doubtful. The enactment in each case applies (unless
helped by the interpretation clause) to " land " only, and it is pos-
sible that the context does not allow the word " land " in this place
to include incumbrances on it.

The transfer of mortgages is expressly provided for in all seven-
teen jurisdictions,63 and though only in two — Manitoba and Sas-
katchewan— are sub-mortgages referred to,64 it seems clear that
incumbrances on the land can be dealt with in all jurisdictions in
the same way as the land itself. Hence equitable interests in in-
cumbrances may be created, and these interests may be protected
by caveat and other restrictive entries ; the enactments which

"Tolley & Co. v. Byrne (1902) 28 V. L. R. 95: Wells and Johns v.
Registrar-General (1909) 29 N. Z. R. 101; Aust Torr. Syst. 853. In
Hall V. Yorkton Registrar (1911) 16 West. R. 256 (AL). it seems to have
been assumed that a mortgagee might be entitled to indemnity.

WN. S. W. 1900. s. 45: S. A. 1886. s. 251 ; X. Z. 1915. s. 60; M. 1913,
ss. 83, 117 ; Sas. 1917, s. 61.

•'Campbell v. Auckland District Registrar (1910> 29 X. Z. R. 332.
This case overrules Shirley v. Tapper (1904) 23 X. Z. R. 849, referred to in
addendum to Aust. Torr. Syst. 962.

•N. S. W. 1900, ss. 46, 51. 52; Q. 1S61. ss. 65. 66; S. A. 1886, ss.
150, 151; Tas. 1862, ss. 63. 64; V. 1915. ss. 121. 122: W. A. 1893, ss.
82, 83; P. 1913, ss. 37, 38: X. Z. 1915, ss. 89. 90; Fi. 1876 (1906), ss. 46-
48 ; F. M. S. 1911. ss. 33-35 : Tr. 1902, ss. 51, 60. 61 ; J. 1888. ss. 63, 64 ;
L. Is. 1886 (1914), ss. 64-66; If. 1913. ss. 109. 110; Sas. 1917, ss. 122-124;
Al. 1906, ss. 66-68 ; Can. 1906. ss. 104-107.

"M. 1913, s. 110: Sas. 1917, s. 122 (4). The Xew Zealand enactment
(from which the Saskatchewan enactment is taken), referred to in Aust.
Torr. Syst. 964. has now been repealed and does not appear in the pres-
ent statute: X. Z. 1915, s. 102.

204 MORTGAGES, dc. [Ch. vi.

authorize the entry of a caveat expressly or impliedly include
interests in incumbrances among the interests that may be so pro-
tected (Chap. V, Sect. 4, ante, p. 173).

The priority of competing mortgages and other incumbrances
created after initial registration is provided for in all these juris-
dictions by general enactment, and in some by supplementary special
enactments. (The question of incumbrances existing at the time
of initial registration is referred to ante^. 199). In the majority
the general enactment is to the effect that priority among competing
instruments is governed by the time of registration and not execu-
tion. This distinct statement is not contained in the Leeward
Islands statutes, but it is enacted that " dealings shall take effect
from the date and act of registration, and not from " execution
of the instrument, the date of presentation for registration being
made the operative date of transfers, mortgages, &c. ;65 this seems
effective in giving priority according to time of registration. In
all the Australasian jurisdictions except Fiji, in Manitoba, and in
Jamaica,66 there is merely a general enactment expressly giving
priority according to time of registration. In Trinidad-Tobago 67
there is, besides the general enactment just referred to, an enact-
ment that " as between different mortgages and incumbrances "
priority goes according to time of registration. In the remaining
five jurisdictions — Saskatchewan, Alberta, North-West Territories,
Fiji, Federated Malay States 68 — in addition to the same general
enactment transfers of " mortgages, incumbrances, and leases ** (in
Federated Malay States " leases and charges ") have priority ac-
cording to time of registration.

In all seventeen jurisdictions statutory powers are conferred
upon registered owners of money securities, such as powers of sale,
entry, distress. These statutory powers relate principally to mort-
gages, but include to some extent non-mortgage securities. The
mortgagee's right to foreclose or obtain the mortgagor's property in
the land is not, in four jurisdictions — Queensland, Papua, Trinidad-
Tobago, North-West Territories — made the subject of detailed
statutory enactment ; in nine — New 'South Wales, South Australia,
Tasmania, Victoria, Western Australia, Jamaica, Manitoba, Sas-
katchewan, Alberta — a peculiar method of statutory foreclosure

65 1. Is. 1886 (1914). ss. 6, 22, 38, 52. 66.

"N. S. W. 1900. s. 36 (3) ; Q. 1877. 8. 12; S. A. 1886. s. 56; Tas.
1862, s. 35: V. 1915, s. 53: W. A. 1893. s. 53; P. 1913. s. 21; N. Z. 1915.
s. 35 (4) ; M. 1913. s. 89; J. 1888, s. 44.

"Tr. 1902, ss. 41, 76.

wSas. 1917. ss. 63. 122: Al. 1906. ss. 23. 66 (1) : Can. 1906. ss. 77,
104 (3) : Fi. 1S76 (1906). ss. 35, 46: F. M. S. 1911, ss. 21, 33.

Sect. 2] STATUTORY MORTGAGE. 0Q5

has been provided; in the remaining four — Xew Zealand, Fiji,
Federated Malay States, Leeward Islands — foreclosure is replaced
by judicial sale. Xo statutory remedy has been provided for the
case of an equitable mortgage by deposit of certificate of title, but it
has been held that the right of the mortgagee is to have an absolute
transfer of the land — the equivalent of foreclosure.69 A mortgagee
taking proceedings under any non-statutory mortgage (other than
a mere deposit of certificate of title) would probably not obtain
satisfactory relief until he could shew that he had (or was entitled
to have) a registered security. It has however been said that the
old procedure of foreclosure is still applicable to equitable or non-
statutory mortgages.70

SECTION* 2 — THE STATUTORY MORTGAGE.
SUB-SECTIOX 1 — CREATION* OF MORTGAGE.

As already stated (ante, p. 192), in British Columbia and
British Honduras no provision is made for a statutory form of
mortgage. The present section is more particularly concerned with
the twenty jurisdictions in which the statutes contain developed
schemes for mortgaging registered land.

In four of these twenty jurisdictions — England, Ontario, Ire-
land, Federated Malay States — the statutory instrument of mort-
gage is called a* " charge." There is no essential difference between
the instruments that are called " mortgages " and those that are
called " charges " in the statutes, when these latter are employed to
secure a loan-debt, and throughout this book such a charge is re-
ferred to as a u mortgage " whenever possible.1

In everj- one of the twenty jurisdictions an express power of
creating a security by mortgage is conferred on registered owners
of land, the statute directing that an instrument in a certain form
is to be executed and registered. In twelve jurisdictions the enact-
ments are to the effect that when a mortgage security is intended
to be created, the owner " shall " execute an instrument of mortgage
in the proper form, viz. : Xew South Wales, Queensland, South Aus-

•In Charters v. Cosmopolitan Bank (1902) 28 V. L. R. 251. an order
for transfer was made: in Lascelles v. Benlisa (1912) 2 Tr. & Tob. 181. it
wa.s held that the depositee had not the rights of a mortgagee, and Anst.
Torr. Syst. 787 was cited. But the Trinidad case seems unsatisfactory,
and the Victorian decision sounder.

"Tiett/ens v. Cox (1916) 17 S. R. (X. S. W.) 48.

'See Tlaji Ahdul Rahman v. Mohamed Hassan '19171 A- C. 209. The
Federated Malay States statute in many of its sections follows the Fiji
statute word for word, only substituting " charge " for the " mortsaire '' of
the Fiji statute.

206 MORTGAGES, dc [Ch. vi.

tralia, Tasmania, Papua, New Zealand, Fiji, Federated Malay
States, Manitoba, Saskatchewan, Alberta, North-West Territories.2
In eight jurisdictions — England, Ireland, Ontario, Victoria, West-
ern Australia, Trinidad-Tobago, Jamaica, Leeward Islands 3 — the
owner " may " mortgage his land by executing an instrument in the
proper form. The enactments do not however differ in meaning:
the word " may " is in effect as peremptory as " shall," and the en-
actment containing it points out the only method of mortgaging
authorized by the statute.4 In some jurisdictions — England, Ire-
land, Ontario, Fiji, Federated Malay States, Alberta, North-West
Territories — a direction that the statutory instrument shall be reg-
istered is contained in the section that confers the authority to
create a mortgage. Leeward Islands 5 is peculiar, the mortgage be-
ing expressly constituted by the registration of the statutory in-
strument, but the instrument would apparently be valid as a con-
tract even before registration. In the remaining jurisdictions —
New South Wales, Queensland, South Australia, Tasmania, Vic-
toria, Western Australia, Papua, New Zealand, Trinidad-Tobago,
Jamaica, Manitoba, Saskatchewan 6 — it is provided by separate en-
actment that an instrument does not operate as a mortgage security
until it is registered, but upon registration does so operate. The
effect of all these enactments requiring registration as a condition
of a complete security, is substantially the same. This completion
by registration is referred to later on. •

In all but six of these jurisdictions — the excepted six being Eng-
land, Ireland, Ontario, Trinidad-Tobago, Leeward Islands, Fed-
erated Malay States — there is an enactment providing that the
statutory mortgage is to take effect as a security, but is not to oper-

2N. S. W. 1900, s. 56; Q. 1861, s. 56; S. A. 1886, s. 128; Tas. 1862,
s. 52; P. 1913, s. 46; N. Z. 1915, s. 101; Fi. 1876 (1906), s. 58; F. M. S.
1911, s. 43 ; M. 1913, s. 107 ; Sas. 1917, s. 98 ; Al. 1906, s. 60 ; Can. 1906,
s. 94.

3Eng. 1875, s. 22; I. 1891. s. 40; On. 1914, s. 30; V. 1915, s. 145;
W. A. 1893, s. 105; Tr. 1902, s. 74; J. 1888, s. 78; L. Is. 1886 (1914), ss.
36. 37. As to Jamaica and Leeward Islands, see also next note.

* Crowley v. Templeton (1914) 17 C. L. It. 457; Ilaji Abdul Rahman
v. Mohamed Hassan, supra. In Jamaica and Leeward Islands certain mort-
gages not in statutory form, or otherwise not entitled to be registered, are
expressly made valid first charges on the land as though they were in
accordance with the registration statutes : see (Jamaica) Hurricane Loans
Law 1903 (No. 47), s. 8; (Leeward Islands) Hurricane Loan Title by
Registration Amendment Act 1900 (No. 3).

5L. Is. 1886 (1914), ss. 6, 36, 37; In re Smith [1916] 2 Ch. 206.

6N. S. W. 1900, s. 41; Q. 1861, s. 43; S. A. 1886, s. 67; Tas. 1862,
s. 39 ; V. 1915, s. 61 ; W. A. 1893, s. 58 ; P. 1913, s. 28 ; N. Z. 1915, s. 38 ;
Tr. 1902, s. 46 ; J. 1888, s. 48 ; M. 1913, s. 91 ; Sas. 1917, s. 58.

Sect. 2] STATUTORY MORTGAGE. ••><);

ate as a transfer of the land.7 This enactment is really superflu-
ous; it merely makes explicit what was already implied,8 but it
serves to emphasize the change from the old to the new method of
mortgaging — by means of a charge instead of a conveyance. In
many of the statutes the effect of the statutory " mortgage " is re-
ferred to as creating a " charge " on the land.9

The statutory mortgage then, in all jurisdictions, creates a charge
only, and does not of itself vest the ownership of the land in the
mortgagee 10 — it does not effect " any dismemberment of the mort-
gagor's registered title," but " the mortgagee becomes vested with
such rights in respect of the possession of the land and its profits,
and the registered title becomes (for the benefit of the mortgagee)
subject to such powers of disposition, as the statute expressly or by
implication declares/' u

The totality of the mortgagee's rights over the land conferred
on him by the creation of the statutory " charge " is conveniently
referred to as his " interest " in the land.12 It has indeed been said
that the statutory mortgage does not "vest in the mortgagee any
registered ' interest ' in the mortgagor's land, as that term is used
in the " statutes,18 and " in that sense the mortgagee has no estate
or interest in the land," 14 but he has nevertheless an " interest "
sufficient to enable him to protect his rights by caveat, and the use
of the word " interest " to denote his rights generally is therefore
appropriate.15 In other cases it has been laid down that the mort-
gagee has " an estate or interest in the land " though " less than the

T N. S. W. 1900, s. 57 ; Q. 1861, s. 60 ; S. A. 1886, s. 132 ; Tas. 1862.
s. 53; V. 1915, s. 146; W. A 1893, s. 106; P. 1913, s. 47: N. Z. 1915,
s. 102; Fi. 1876 (1906), s. 62; M. 1913, s. 108: Sas. 1917, s. 102; Al.
1906, s. 61; Can. 1906, s. 98; J. 1888, s. 80.

• Smith v. National Trust Co. (1912) 45 Can. S. C. R. 618, 650.

• For instance, in New South Wales and England : N. S. W. 1900, ss.
56, 57 ; Eng. 1875, s. 22.

"Own. & Inc. 101-104; Capital and Counties Bank v. Rhodes [1903]
1 Ch. 631. 650. 657: Aust. Torr. Syst. 941. 942. cases there cited: in re
Goldstone's Mortgage [1916] N. Z. R. 19, 489; Can. Torr. Syst. 281, 282:
Bro. & Gl. 152, 153; Innes F. M. S. 30.

u Smith v. National Trust Co. supra, at p. 639 ; Yockney v. Thompson
(1913) 50 Can. S. C. R. 1.

a An illustration is Gibbs v. Messer [1891] A. C. 248, 254.

"Smith v. National Trust Co. supra. The enactment in Manitoba (M.
1913, s. 108) makes the statutory mortgage inoperative "as a transfer of
land ... or of any estate or interest therein." but this does not differ
in meaning from other corresponding enactments which simply refer to
" land."

" Yockney v. Thompson, supra, at p. 4 ; Toronto General Trusts Corp.
v. Rex (1917) 56 Can. S. C. R. 26. affd. by P. C, [1919] A. C. 679.

"Yockney v. Thompson, supra: M. 1013. *. 138. by which "any per-
««n claiming an estate or interest in land " may enter a caveat.

208 MORTGAGES, dc. [Ch. vi.

fee simple/' 10 and again, that he has " an interest but no estate." 17
In some Canadian jurisdictions this interest is so far in the nature
of a transfer of the land from the owner, that a prohibition against
certain transfers applies equally to mortgages.18 In Australia,
even the interest of an equitable mortgagee by deposit of the certifi-
cate of title is an interest in the land for the deprivation of which
indemnity can be had;19 and the interest of a statutory mortgagee
is an interest in land within the meaning of the Trustee Acts which
can be made the subject of a vesting order.20 Thus the difference
between the New Zealand and the Manitoba views appears to be
merely a question of terminology — whether the mortgagee's inter-
est shall or shall not be called an " estate or interest."

In describing the statutory mortgage as a " charge," it is neces-
sary to bear in mind that the charge is a statutory one, and not
what is ordinarily known as a charge in equity jurisprudence, where
it is usually distinguished from a security completed by conveyance
of the ownership or legal estate. If the statutory mortgage is to be
compared to an equitable mortgage at all, it more nearly resembles
the equitable mortgage by deposit of deeds (the mortgagor retain-
ing the legal estate) than an equitable mortgage where the legal
estate is in either a prior mortgagee or a trustee for the owner.21 The
charge constituting the statutory mortgage is in fact a strictly legal
interest — as the registered owner's title is a legal interest — confer-
ring on the mortgagee rights and powers which in the case of un-
registered land are usually conferred by conveying the owner's land
to the mortgagee. The important question is : What are the rights
and powers conferred on the mortgagee?

The frame of the ordinary instrument of mortgage is substanti-
ally the same in all jurisdictions, and is modelled on the deed poll,
though only in England and Ireland need it be under seal. The
instrument consists of a statement that the person executing it
(being the owner of the land) " mortgages " it to the mortgagee, or
" charges " it with the principal sum and interest in favour of the
mortgagee, preceded or followed by (in most jurisdictions) cove-
nants for payment and any permissible stipulations in addition that

16 Campbell v. Auckland Dist. Registrar (1910) 29 N. Z. R. 332, 338.
345.

17Reid d Co. v. Minister for Works (1902) 2 S. R. (N. S. W.) 405, 416.

18 Al. 1906, s. 60 (3)— but now amended by Al. 1919. e. 37: Can. Torr.
Syst. 281, 282. Sas. 1909, s. 89 (Can. Torr. Syst. 493), is not reproduced in
Sas. 1917.

19 Tolley & Co. v. Byrne (1902) 28 V. L. R. 95 ; Aust. Torr. Syst. 853.

20 In re Cain (1893) 5 Q. L. J. 93.

"See Fink v. Robertson (1907) 4 C. L. R. 864, 873, referring to
James v. James (1873) L. R. 16 Eq. 153.

Sect. 2] STATUTORY MORTGAGE. 209

may be desired; attestation is in all cases required. In the Lee-
ward Islands there is no express covenant for payment (though one
seems to be implied by the language of the prescribed form), and
no provision is made for the addition of special clauses ; in England
and Ontario the covenants for payment are omitted from the ordi-
nary form as prescribed, but these are implied in the instrument by
express enactment in the statutes. In England a mortgage to a
building society may be made in the form required by the rules of
the society 22 and in Western Australia and Jamaica 23 special forms
for mortgages to building societies are prescribed. In New Zea-
land 2* a concise alternative form of mortgage is provided. On the
instrument being registered it operates as a charge on the land
according to its tenor, and in addition to the rights purporting to
be conferred by the instrument itself certain other rights are by the
terms of the statutes at once conferred

Provision is made in the majority of the statutes for substantial
adherence to the prescribed forms of instrument being sufficient,
and for alterations in and additions to the statutory rights being
made. The general law, as it stands in any particular jurisdiction,
must of course be complied with, a good illustration of this being
the subject of covenants for payment of blended principal and in-
terest in Canada. In all Canadian jurisdictions the amount of
principal and rate of interest payable must be stated where princi-
pal and interest are to be paid together.25

The Leeward Islands statute allows the minimum amount of
variation ; all instruments must be in prescribed form, " or as near
thereto as the circumstances admit." 28 Th^ Trinidad-Tobago
statute allows variations, " not being a matter of substance," but
there is no provision for the exclusion or modification of implied
covenants, fcc27

In Saskatchewan, Alberta, and Xorth-West Territories,28 a

aEng. 1897. s. 9 (3).

* W. A. 1893, s. 129, sch. 8: J. 1888. s. 79, sch. 11.

*N. Z. 1915, s. 101 (2), scb. 2 G.

24 Interest Act — a Dominion statute (R. S. Can. 1906. e. 120). ss.
6, 7. Recent cases under this statute are: Canadian Mortgage Incest. Co.\.
Cameron (1917) 55 Can. S. C. R. 409 (from Alberta), and Standard Re-
liance Mortg. Corp. v. Stubbs. ib. 422 (from Manitoba). In both cases
the mortgages appear to have been over registered land, and these cases
thus shew that' the provincial registration statutes are subject to Domin-
ion legislation.

*L. Is. 1886 (1914), s. 2 (5). This provision is almost identical
with that in the Merchant Shipping Act 1894, s. 31.

"Tr. 1902, ss. 49, 153.

"Sas. 1917, ss. 55, 65. 98: Al. 1906. ss. 60, 131; Can. 1906. ss. 94, 172.

r.t.i..- -14

210 MORTGAGES, dc. [Ch. vi.

mortgage must be in prescribed form, " or to the like effect," and
" every covenant and power . . . implied in any instrument . . .
may be negatived or modified by express declaration in the instru-
ment." These provisions are also enacted in Manitoba;29 in addi-
tion, instruments are registrable if " substantially in conformity
with " prescribed forms, and variations are allowed, not being " in
matter of substance," whilst an unfettered discretion is given to the
registrar to accept an instrument in non-statutory form, and so,
under certain circumstances, in Saskatchewan.

The above provisions — that every implied covenant and power
may be modified by express declaration, and that prescribed forms
may be varied in matters not of substance — appear (mostly in
identical language) in the statutes of the nine Australasian juris-
dictions, Jamaica, and Federated Malay 'States.30 In South Aus-
tralia and Papua instruments in non-statutory form may also be
admitted to the register, to prevent " great loss or inconvenience."

In England and Ontario 31 each statutory power given to mort-
gagees is expressly permitted to be negatived. In Ontario the pre-
scribed forms are to be used " with such alterations and additions
only as are necessary to meet the circumstances of each case." In
England a wide discretion as to permitting alterations and addi-
tions is given to the registrar, but the prescribed forms are to be fol-
lowed " as nearly as circumstances will permit " where no form is
prescribed, and instruments are not to be registered or entries made
that are " inconsistent with the principles upon which the register
is to be kept." In Ireland nothing is said about negativing or modi-
fying implied covenants or powers, the provisions of the Conveyanc-
ing Acts being incorporated in the registration statute; mortgages
must be in the prescribed form, " or as near thereto as the circum-
stances of the case admit," or as may appear sufficient to the regis-
trar, and extra fees are charged on filing instruments in other than
prescribed form.32

Independently of special enactment, the general rule is that a
provision in a registration statute may be waived by those for whose
benefit it is inserted.83 This would enable implied covenants and

29 M. 1913, ss. 2 (3), 91, 107, 165.

80 N. S. W. 1900, ss. 39, 80, 103 ; Q. 1861, ss. 3. 76 : S. A. 1886, ss.
54, 247, 262, 275 ; Tas. 1862, ss. 3. 41. 90 : V. 1915. ss. 176. 279 ; W. A.
1893, ss. 131, 238 ; P. 1913, ss. 5, 83. 126B ; N. Z. 1915, ss. 166, 223 ; Fi
1876 (1906), ss. 40, 114 ; J. 1888, ss. 100, 128 ; F. M. S. 1911, ss. 26, 28 (c) ,
85. And see Aust. Torr. Syst. 905.

81 Ens. 1875. ss. 22-28 : 1903-8 Rules, rr. 97-100. On. 1914, ss. 30-36 ;
1911 Rules, r. 80.

32 1. 1891. s. 40; 1910 O. 4, r. 1, sch. fees 16; Bro. & Gl. 58.
38 Wilson v. Mcintosh, [1894] A. C. 129.

Sect. 2] STATUTORY MORTGAGE. 211

powers to be uegatived or modified by agreement even in the Lee-
ward Islands and Trinidad- Tobago. With the aid of this principle,
and the general principle of preserving substantially property rights
as far as possible,3* and also of cases (other than those relating
specially to mortgages) on the subject of statutory forms, the enact-
ments above referred to may perhaps be summed up by saying that
the prescribed form of mortgage must be followed in substance,
though verbal identity is by no means required.33 As to what is
substantial compliance — which is of course the difficulty — it may
at least be said that an instrument does not substantially comply
with, or follow in substance, the statutory form, unless it is on its
face drafted with reference to the provisions of the statute under
which it is to be registered.36 Even the insertion of entirely new
clauses would not of itself make an instrument unregistrable, so
long as it was not " inconsistent with the principles upon which the
register is to be kept." 3T Such an inconsistency occurs when the
statutory instrument purports to include land that is not on the
register at all.38

Variations of the statutory form of mortgage may be by way of
either alteration or addition : the latter give rise to greater difficul-
ties of construction.

The mortgage must purport to operate by way of charge on, and
not conveyance of, the registered title :39 " the charge is an essential
feature of a mortgage " and " must always be present."- 40 But the

"Aust. Torr. Syst. 803; Can. Torr. Syst. 365.

*E» p. Hamilton (1865) 3 S. C. (N. S. W.) 311, 317; Shore v. Green
(1890) 6 Man. R. 322; Crowley v. Tetnpleton (1914) 17 C. L. R. 457.
As to discretion vested in registry officers with respect to mere form of
instruments, see Aust. Torr. Syst. 905 ; in South Australia, Papua, and
Manitoba, see the statutes : S. A. 1886, s. 247 ; P. 1913, s. 126B ; M. 1913,
s. 91. Some English cases on statutory forms are cited and quoted from
in Can. Torr. Syst 106.

"Shore v. Green and Crowley v. Tetnpleton, supra. In these cases
leases were held unregistrable as not being in statutory form, and they
well illustrate the permissible limits of variation, since leases are treated in
this respect with greater liberality than other instruments; instances of
this are Bucknall v. Reid (1876) 10 S. A. R. 188, and Baker's Creek G. M.
Co. v. Hack. (1894) 15 N. S. W. Eq. 207. As to these cases, see Aust
Torr. Syst. 879, which appears to be referred to in Smith v. National
Trust Co. (1912) 45 Can. S. C. R. 618. at p. 667.

"This statement seems justified by Brown v. Wellington and Man-
awatu Ry. Co. (1899) 17 N. Z. R. 471: Bucknall v. Reid and Baker's
Creek G. M. Co. v. Hack, supra; Mahony V. Hosken (1912) 14 C. L. R.
379. The quoted words are from Eng. 1903-8 Rules, r. 100 (p. 210. ante).

"Horne V. Home (1906) 29 N. Z. R. 1208.

"Re Spokane and Eastern Trust Co.'s Mortgage (1910) 15 West.
R. 637 (Al.), partly stated in Can. Torr. Syst. 285.

10 In re Goldstones Mortgage [1916] N. Z. R. 489. 500.

212 MORTGAGES, dc. [Ch. vi.

charge must be of the proper kind, appropriate for securing a debt,
charging it on the land directly and not merely by agreeing to do
so.41

If the instrument did purport to operate by way of conveyance
instead of charge, it would usually be refused registration or sub-
sequently declared inoperative. An apparent exception has oc-
curred (in New South Wales) in the case of a mortgage by the
donee of a power of appointment over the fee simple; the instru-
ment, though it might have been construed as purporting to vest
the fee simple by way of mortgage in the mortgagee, was held to
operate by way of charge only, and to constitute a valid statutory
mortgage.42 This is only likely to occur in jurisdictions in which
the creation and execution of registered powers of appointment is
expressly authorized by the statutes, viz. : New South Wales, Tas-
mania, Victoria, Western Australia, New Zealand, Trinidad-To-
bago, Jamaica.43 In Victoria, Western Australia, and Jamaica
mortgages by donee of a power are expressly provided for.44

The " contractual part " of the mortgage can be more readily
altered than the charging part. A wide departure from the pre-
scribed form is permissible, even though this " in many cases must
amount to a complete deletion of " the " contractual part " of the
form,45 and " express covenants and powers of an entirely different
character may be introduced." 46 The prescribed forms " are good
servants but bad masters," and should be used " to facilitate, and
not to hinder, dealings with land." 47 Thus, there is no objection
to an instrument already on the register being referred to and in-
corporated in the mortgage instrument, or to the terms of the prior
instrument being varied by apt words of agreement in the later

"Re Rumeley Co. (1911) 17 West. R. 160 (Sas.), partly stated in Can.
Torr. Syst. 103, 108.

42 Ex p. Newcastle Build. Co. (1905) 5 S. R. (N. S. W.) 237. Another
example of a similar mortgage occurs in Moir v. Loxton (1913) 13 S. R.
(N. S. W.) 143. In both cases the donee of the power was a married
woman registered as proprietor of a life estate.

43 N. S. W. 1900, s. 99 ; Tas. 1862, s. 86 ; V. 1915, s. 123 ; W. A. 1893.
s. 84; Tr. 1902, s. 62; J. 1888, s. 65. And see Aus-t. Torr. Syst. 940;
Own. & Inc. 224.

**V. 1915, s. 150; W. A. 1893, s. 110; J. 1888, s. 83.

48 In re Goldstone's Mortgage [1916] N. Z. R. 489, 500; and see
Crowley v. Templeton (1914) 17 C. L. R. 457, 466.

"Smith v. National Trust Co. (1912) 45 Can. S. C. R. 618, 667;
and see p. 641 as to the " economic " identity of the statutory mortgage
with, notwithstanding "juridical" differences, the ordinary mortgage (quoted
in Can. Torr. Syst. 289, 290). See also Mutual Life Ass. Co. v. Douglas
(1918) 57 Can. S. C. R. 243, as to identity of English and civil law mort-
gages.

47 Perpetual Executors Assoc, v. Ilosken (1912) 14 C. L. R. 286, 289,
290.

Sect. 2] STATUTORY MORTGAGE. v>l;5

instrument.48 And a contributory mortgage, or even a single in-
strument containing two mortgage transactions, is valid and re-
gistrable.49 Mortgagees who are in fact trustees of the mortgage
money may also refer to this in the mortgage instrument by stating
that the money advanced is trust money held by them under a
named deed of settlement.50 Nor is there any objection to the
mere statement that the mortgage money is collaterally secured by
another named mortgage over unregistered land, though this col-
lateral deed should not be expressly " deemed to be incorporated
with " the statutory mortgage.51 And in general unregistered in-
struments should not be incorporated by reference; the statutory
mortgage may thereby either be made unregistrable,52 or the incor-
porated instrument may not form p*art of the mortgage.53

Variations by way of addition open a wider range of discussion.
They usually consist of clauses modifying or negativing rights con-
ferred by the statutes upon the owner as against the mortgagee.
Some of these rights cannot be entirely negatived, and cannot be
modified beyond a certain limit. But on the threshold of the sub-
ject is the question whether any, and if any what, provisions can
be introduced into the statutory mortgage which have not express
reference to the contents of the instrument as supplied by the stat-
ute itself. It is quite clear that some provisions of this kind can
be introduced.54 The principle of permitting certain alterations in
the prescribed form applies equally to certain additions that are
commonly the subject of agreement between the parties in ordinary
mortgages, and in the majority of the statutes the forms themselves
contemplate the insertion of additional clauses,55 while some of these

*7n re Goldstone's Mortgage [1916] N. Z. R. 19, 489.
*Ex p. Roxburgh (1868) 1 Q. S. C. R. 201; Drake v. Templeton
(1913) 16 C. L. R. 153.

50 De Cordova v. Registrar of Titles (1910) Jamaica, unreported.

51 De Cordova v. Registrar of Titles, supra; Re "North-West Telephone
Co. (1909) 12 West. R. 300 (Sas.) ; Aust. Torr. Syst. 947.

52 Re North-West Telephone Co., supra.

"Wilkin v. Deans (1888) 6 N. Z. R. 425; Re KeUy and Colonial
Invest. Co. (1906) 3 West. R. 62 (N. W. T.>.

54 Possibly Leeward Islands may be an exception. Tbe prescribed form
contains no covenants, and does not contemplate the insertion of special
clauses: L. Is. 1886 (1914), sch. B f. 8.

z* In the nine Australasian jurisdictions the prescribed form of mort-
gage permits the insertion of " special covenants," in Federated Malay
States " special stipulations," in Ontario " covenants which are agreed
to and are not implied under the Act or otherwise." In England certain
named " special stipulations may be added at the end of tbe charge " ;
and see Eng. 1903-8 Rules, r. 97. Only in Ireland and Leeward Islands
does the prescribed form contain no reference to additional clauses.

214 MORTGAGES, <C-c. [Ch. vi.

additions have received judicial sanction.50 Thus, it is a common
practice in those jurisdictions in which the statutes make no refer-
ence to the custody of the certificate of title, to insert a clause pro-
viding that the mortgagee shall be entitled to this custody, and there
seems to be no objection to this, though the mortgagee can usually
be compelled to produce the certificate of title for the purpose of
other transactions being registered.57 In New Zealand the statute
gives the mortgagee the right of custody, though he is still bound
to produce the certificate of title for purposes of registration, and
in England the mortgagee may stipulate for this right,68 but in
Leeward Islands, Manitoba, iSaskatchewan, Alberta, and North-
West Territories,59 the statutes expressly deprive the mortgagee of
the right.

'Covenants to pay life insurance premiums,60 and covenants for
payment of principal or interest by guarantors who are not the own-
ers of the mortgaged property,01 may be inserted without rendering
the mortgage unregistrable.

In England a practice has grown up of inserting in the statu-
tory mortgage of freehold land a conveyance in fee;02 this has no
effect on the registered title, but only operates as an unregistered
conveyance would. The practice seems both unnecessary and out
of harmony with the principles of registration of title, and is largely
due to the difficulties created by the provisions for ** possessory "
registered title and unregistered transactions.03 It seems unlikely
that the practice will extend beyond England.

Clauses by which the owner attorns tenant to the mortgagee are
often inserted, and these are referred to later on.

Verjr special clauses are sometimes inserted in mortgages of
leases or leasehold land. A clause, by which the owner (a lessee for
five years) appointed the mortgagees his attorneys to take possession
on default and among other things sub-let, was assumed to be valid

s6Aust. Torr. Syst. 879, 946.

S7Aust. Torr. Syst. 923, 948; Bro. & Gl. 136, 187; V. 1915, s. 166;
W. A. 1893, s. 127; Registrar-General v. Wright (1917) 23 C. L. R. 214;
Anthony v. Speed [1917] S. A. R. 110.

58 N. Z. 1915. s. 121; In re Wright (1894) 12 N. Z. It. 585. Eng.
1897, s. 8 ; 1903-8 Rules, rr. 267, 268 ; Own. & Inc. 160.

59 L. Is. 1886 (1914), s. 49; M. 1913, s. 127; Sas. 1917, s. 101; Al.
1906, s. 71 ; Can. 1906, s. 97.

60 Wiltse v. Excelsior Life Ins. Co. (1916) 34 West. R. 16, 1114.

61 Wells and Johns v. Registrar-General (1909) 29 N. Z. R. 101 ; Per-
petual Executors Assoc, v. lloshen (1912) 14 C. L. R. 286. In Moir v.
Loxton (1913) 13 S. R. (N. S. W.) 143, 18 C. L. R. 360) such a guarantee
was contained in a separate deed.

62 Br. & Sh. 398; Capital and Counties Bank V. Rhodes [1903] 1 Ch.
631. 657, 658.

43 Own. & Inc. 102, 192, 197, 201; Bro. & Gl. 152, 153.

Sect. 2] STATUTORY MORTGAGE. 215

in one case, though the whole instrument was said to be " a most
ususual mortgage form." 64

In mortgages to brewers beer covenants are often inserted, and
these covenants appear to be valid to the same extent as in the case
of unregistered land, and the mortgages containing them appear to
be registrable.65

Judicial opinion is divided as to the extent to which the mort-
gagee can have vested in him effectively powers which, in the ordi-
nary mortgage by conveyance, depend for their effectiveness upon
some estate in — that is, ownership of — the property being made
over to the mortgagee. The difficulty is illustrated by questions re-
lating to powers of leasing and sale.

Only in South Australia, Manitoba, Saskatchewan, and Alberta,66
is a power to lease given expressly by the statutes to the mortgagee.
In England, Ireland, and Ontario,67 the statutes enact in effect that
leasing powers may be conferred by the owner on the mortgagee,
other statutes giving this power being embodied by reference in the
registration statute — in England and Ireland the Conveyancing
Acts, in Ontario the Short Forms of Mortgage Act. The Leeward
Islands statute is singular in its provisions, and apparently only
short leases can be made by a mortgagee in possession.68

In North- West Territories the owner may covenant in statutory
form that the mortgagee may enter and have quiet possession on
default.69 In Trinidad-Tobago the statute gives a mortgagee all
rights and powers which he would have had if the " legal estate "
had been conveyed to him by a mortgage of unregistered land.70 In
the remaining jurisdictions the statutes themselves give the mort-
gagee the right to take possession on default — " to enter into pos-
session . . . by receiving the rents and profits" is the phrase used
in all these eleven jurisdictions and also in Manitoba (referred to
above). In Victoria, Western Australia, and Jamaica, and also
in Manitoba (already referred to), this right of taking possession
is supplemented by an enactment conferring on a mortgagee (in
Victoria and Manitoba a " first mortgagee ") the same rights as he

"Seabrook v. McMullan (1908) 10 W. A. R. 47.

*See Bticknall v. Reid (1876) 10 S. A. R. 188 (lease) ; Mahony v.
HosUen (1912) 14 C. L. R. 379 (non-mortgage charge). An opinion against
the registrability of such a mortgage ^'<is expressed in Staples v. llackay
(1893) 11 N. Z. R. 258.

■ S. A. 1886, s. 137 ; M. 1913, b. 118; Sas. 1917. s. 108 ; Al. 1906. s. 62A.

"Eng. 1875, s. 25: 1897, s. J): Own. & Inc. 195, 235. I. 1891. s.
40 (4). On. 1914, ss. 31 (2). 33.

"L. Is. 1886 (1914), ss. 72, 87.

"Can. 1906, s. 109. sch. f. TJ3.

79 Tr. 1902. s. 75.

215 MORTGAGES, dc. [Ch. vi.

would have had if the " legal estate " had been vested in him with a
right in the owner of quiet enjoyment until default.71 This supple-
mental enactment as to the " legal estate " is absent from New
South Wales, Queensland, South Australia, Tasmania, Papua, New
Zealand, Fiji, and Federated Malay States.72

The omission in the statutes of these thirteen jurisdictions (in-
cluding North-West Territories and Trinidad-Tobago) of an ex-
press leasing power in the mortgagee, and of a right in the owner
to confer such a power upon him, has been partially made good
by decisions to the effect that the relationship of landlord and ten-
ant can be created between the mortgagee and owner, and that the
statutory power to take possession includes a power of leasing.
Thus, in New South Wales it is held that a mortgagee taking pos-
session hj receiving the rents and profits may lease the land just as
if the mortgage had been effected " by a conveyance of the legal
estate/' 73 and the decision would apply a fortiori in those jurisdic-
tions— Victoria, &c. — in which the mortgagee is given by statute the
rights he would have had by the " legal estate " being vested in him.
In several jurisdictions it is held that a clause by which the owner
attorns tenant to the mortgagee is valid,74 and that the statutory
mortgage ipso facto creates the relationship of landlord and tenant
as under a mortgage by conveyance.73 In the New Zealand, Sas-
katchewan, and Alberta cases cited, the tenancy is treated as one
by estoppel only, and not a " real tenancy - available against execu-
tions and the goods of strangers, but in the Victorian cases there is
no suggestion that the tenancy is other than an ordinary tenancy as
by demise.70

71 V. 1915, ss. 151, 156 ; W. A. 1893, ss. Ill, 116 ; J. 1888, ss. 84, 89 ;
M. 1913, ss. 114, 116.

72 N. S. W. 1900, s. 60 ; Q. 1861, s. 60 ; S. A. 1886. s. 137 ; Tas. 1862,
s. 56; P. 1913, s. 52; N. Z. 1915, s. 105; Fi. 1876 (1906). s. 60; F. M. S.
1911, s. 44.

13 Finn v. London Bank of Australia (1898) 19 N. S. W. 364. Tht
section (s. 58) referred to in the report is now N. S. W. 1900, s. 60.

"Jellicoe v. Wellington Loan Co. (1886) 4 N. Z. S. C. 330; Hyde v.
Chapin Co. (1916) 33 West. R. 559 (Al.) ; Rollefson Bros. Co. v. Olson
(1915) 31 West, R. 157 (Sas.) ; First National Bank v. Cudmore [1917 J
2 W. W. R. 279 (Sas.) ; Aust. Torr. Syst. 948; Can. Torr. Syst. 302-304.

73 Commercial Bank v. Breen (1889) 15 V. L. R. 572 (s. 93 there
referred to being now V. 1915. s. 156) ; Farrington v. Smith (1894) 20
V. L. R. 90; Equity Trustees Co. v. Lee [1914] V. L. R. 57 (s. 124
reference to in these two cases being now V. 1915, s. 156) ; Vousden V.
Hopper (1911) 16 West. R. 294 (Sas.) : Aust. Torr. Syst. 961. See
notes 70, 71.

76 The Victorian cases were all concerned with the right of a mort-
gagee to recover possession of the land from the owner. In New Zealand
the mortgagee has, on the owner's default, the same remedies " as
are by law given to a landlord against a lessee or tenant whose term is
expired or rent in arrear " : N. Z. 1915, s. 118.

Skct. 2] STATUTORY MORTGAGE. 217

If the mortgagee's lease is to be upheld as included in the statu-
tory power of taking possession, it would seem that possession must
first have been taken in accordance with the provisions of the stat-
utes; the Xew South Wales case cannot be regarded as an authority
that a purely conventional power of leasing can be conferred. It
was however held in the Saskatchewan case that a conventional
power of leasing, operating independently of the statutory power
existing in that jurisdiction — as also in Manitoba and Alberta —
could be conferred.77

The exercise of a mortgagee's power of sale, in the case of un-
registered land, depends for its complete efficiency upon his having
the legal ownership of the property. .Since under a statutory mort-
gage the mortgagee does not obtain the legal ownership, the ques-
tion arises whether a conventional power of sale — that is, one operat-
ing by express agreement between the parties and not conferred by
the statutes — can still be conferred by the owner, or whether the
mortgagee can only have the benefit of any power of sale that may
be conferred by the statutes. In some jurisdictions the power of
sale conferred by the statutes is of the most ample kind. In others
the mortgagee has not complete power in himself to sell, but a sale
can only be carried out under judicial authority.

The widest power of sale is conferred in England, Ireland, On-,
tario, and Trinidad-Tobago.7s The scheme in all four jurisdictions
(though the language of the statutes varies) is to confer on the
mortgagee a power of sale which can be of any degree of stringency,
exactly as though the land were unregistered and had been conveyed
by way of mortgage.

In the nine Australasian jurisdictions (except Fiji), and also
in Jamaica,79 the normal power of sale contemplated by the stat-
utes provides for notice of default being given, and for two periods
of default expiring, before sale can l)e effected — a month being the
typical period ; but besides the general statutory right to negative
and modify covenants, special authority is given in the case of mort-
gages to abridge these periods of default, so that the statutory
power of sale in these jurisdictions can be made practically as strin-
gent as in England, &c.

" Rollefson Bros. Co. v. Olson, supra.

18 Eng. 1875, ss. 22, 26. 27 ; 1897, s. 9. I. 1891. s. 40. On. 1914. ss.
30, 34. 35. Tr. 1902. ss. 75. 77: the "Conveyancing Ordinance" (1902.
No. 72), impliedly embodied in these sections, is nearly a transcript of
the English Conveyancing Acts, the relevant sections being: ss. 21-24 answer-
ing to ss. 19-22 of the English Act of 1881.

»N. S. W. 1900. ss. 5/7-59 ; Q. 1861, ss. 57-59 : S. A. 1886, ss. 132-134 ;
Tas. 1802, ss. 53-55; V. 1915. ss. 146-148. 150: W. A. 1893, ss. 106-108,
110; P. 1913. ss. 48. 50. 51; N. Z. 1915. ss. 103. 109, sch. 4; J. 1888, ss.
80. 81, 83.

218 MORTGAGES, <Cc [Ch. VI.

In Manitoba, Saskatchewan, and Alberta,80 the power of sale
can be exercised by the mortgagee, but only under judicial direc-
tion; as in Australia, notice and two periods of default are pro-
vided for, but the notice must be filed in the registry, and the per-
iods of default cannot be abridged — though they may be lengthened.

In Fiji, Federated Malay States, Leeward Islands, and North-
West Territories,81 no power of sale is conferred on the mortgagee
himself, but proceedings must be taken to obtain a judicial sale.
In the first three a statutory procedure is provided for, but in North-
West Territories it is contemplated that the procedure shall be by
ordinary mortgagee's action for sale, foreclosure, &c. In Fiji and
Federated Malay States provision is made for notice and two de-
faults, with power to abridge the periods of default, as in Australia,
but in North- West Territories the statute is quite silent on all these
points. In Leeward Islands a rigid procedure is laid down and no
provision made for departure from it. In all four jurisdictions
the express provisions of the statutes seem to indicate clearly that a
registered owner could not confer upon his mortgagee any power
of sale which would entitle the latter to sell and give a registrable
title to a purchaser without taking the proceedings for sale directed
by the statutes. In Leeward Islands and North- West Territories
the word " shall " is used, but the expression " it shall be lawful "
in Fiji and Federated Malay States appears to be equally " per-
emptory and exclusive," since no other mode is authorized." 82

In Manitoba, Saskatchewan, and Alberta, this principle of con-
struction, excluding the validity of any power of sale not author-
ized by the statutes and ensuring that " the benefit of the Act "
shall be " dependent upon its requirements being satisfied," 83 has
been authoritatively applied; a power of sale omitting all mention
of notice and periods of default, and carried out without reference
to any judicial directions, is invalid for the purpose of enabling the
purchaser from the mortgagee to be registered as owner.8.4

80 M. 1913. ss. 118-121A; Sas. 1917, s. 109; Al. 1906, s. 62A (6).

81 Fi. 1876 (1906), ss. 63, 64; F. M. S. 1911, ss. 46, 47; L. Is. 1886
(1914), ss. 71-75, sch. B f. 14; Can. 1906, s. 99 ; and see Can. Torr. Syst.
294 et seq.

82 See Crowley v. Templet on (1914) 17 C. L. R. 457, 463, as to "may"
and " shall."

83 Crowley v. Tcmplcton, supra, at p. 466.

"Smith v. National Trust Co. (1912) 45 Can. S. C. R. 618. The
decision was a three to two majority affirming the Manitoba Court (17
West. R. 354) ; a judicial opinion has been expressed to the effect that
the case did not decide that a valid conventional power of sale could not
be conferred on the mortgagee, but only that the power in question was
not thus effective: Rollefson Bros. Co. v. Olson (1915) 31 West. R. 157,
161 (Sas.).

Sect. 2] STATUTORY MORTGAGE. :>19

In Jamaica and the Australasian jurisdictions (other than
Fiji) the same principle seems applicable, but is less prominent in
practice owing to the greater liberty accorded to the mortgagee, and
the wider limits of modification permitted. Powers of sale have
been held valid when made exercisable without any notice to the
owner,85 and the periods of default may be, and not uncommonly
are, cut down to one day. Nevertheless, even in these jurisdictions
a power of sale to be valid must be a modification in some way of
the statutory power, and not altogether independent of the statutory
provisions.86

In England, Ireland, Ontario, and Trinidad-Tobago, the statu-
tory power is made so wide that the question of the validity of any
power of sale given to a mortgagee on the ground of its not being
authorized by the statutes is not likely to arise. Nevertheless in
theory the principle above stated appears to apply — that such a
power can only be valid as a modification of the statutory power,
and not as operating independently altogether of the statutes. In
England and Ontario a " power of sale " simply is conferred by the
registration statutes, and this is supplemented by the incorporation
in these statutes of the power o"f sale conferred on mortgagees of
unregistered land by other statutes of general application, which
latter statutes permit the widest possible variation of the power of
sale given by them. In Ireland the only difference is that no actual
power of sale purports to be conferred by the registration statute,
but the Conveyancing Acts are incorporated. In Trinidad-Tobago
the general statute — the Conveyancing Ordinance — is impliedly but
clearly embodied, and the mortgagee is given the rights he would
have had ** under an instrument purporting to convey the legal
estate n in unregistered land.

The general conclusion seems to be that while it is possible that
a conventional or non-statutory power of leasing may eventually be
upheld by the courts as valid, when expressly conferred by an owner
upon his mortgagee in a statutory mortgage, it is improbable that a
similar power of sale will be upheld. There is, however, a possi-
bility that under some circumstances a non-statutory power of sale,
though ineffective to vest any legal right of registration in a pur-
chaser from the mortgagee, might be treated as an equitable right
to which the court would give effect upon the application of the

86 Public Trustee v. Morrison (1894) 12 N. Z. R. 423; Ex p. New-
castle Build. Co. (1905) 5 S. R. (N. S". W.) 237, 238. And see Skinner v.
Cribb (1878) 5 Q. S. C. R. 31. 38; Campbell v. Commercial Bank (1879)
2 N. S. W. 375 (P. C).

"National Bank of Australasia v. United Hand-in-Hand Co. (1879)
4 A. C. 391, 407.

220 MORTGAGES, &c. [Ch. vi.

mortgagee or his purchaser.87 The question remains, with respect
to the legal rights conferred by the statutory power of sale, how far
this power may be varied by additions to the mortgage instrument
while still preserving statutory rights to the mortgagee.

The statutes in most instances speak plainly for themselves.
Thus, in England, Ireland, Ontario, and Trinidad-Tobago, no ad-
dition by way of varying the statutory power of sale would be in-
valid if it were valid under the general law and apart from the reg-
istration statutes. In Manitoba, Saskatchewan, and Alberta, not
only must notice of intention to sell be given to the owner, but the
notice must be filed at the registry; the period of default, too, can
only be varied by being lengthened, and in general the sale must be
supervised by the registrar. Apparently these provisions of the
statutes cannot be waived, nor can an owner contract himself out of
the statute.88 In the Australasian jurisdictions other than Fiji,
and in Jamaica, the periods of default are by the statutes permitted
to be altered by being either lengthened or abridged, and the courts
have held that the requirement of notice may be altogether waived
and the right to sell made to arise immediately on default.89 Any
variation, not amounting to an abrogation, of the owner's right to
notice, &c, must of course be strictly complied with to make the
sale valid.00

There seems to be no reason to doubt that any attempt in a statu-
tory mortgage to restrict the owner's right of redeeming the pro-
perty on payment of the debt would be as invalid as if it related to
unregistered land.91

To constitute a complete security the mortgage must be regis-
tered {ante, p. 206), but a statutory instrument may be operative
for many purposes as a contract between the parties {ante, p. Ill,
Chap. IV, -Sect. 5). Thus, it seems clear that an action could be
brought on the covenants for payment, when these are expressed in
the instrument itself, although the mortgage was not registered;
and the covenants would be just as binding, even though the cove-
nantor was not the registered owner at the time of entering into

"Smith v. National Trust Co., supra, at pp. 621, 662 (dissenting judg-
ment of Idington and Anglin, JJ.) ; Capital and Counties Bank v. Rhodes
[1903J 1 Ch. 631, 657.

* Smith v. National Trust Co., supra; 17 West. R. at p. 363, where
it is said that " modification cannot go so far as to dispense with the re-
quirements of" M. 1913, ss. 118, 119.

88 Cases in note 85. And see Rollefson Bros. Co. v. Olson, supra.

90 Van Damme v. Bloxam (1875) 9 S. A. R. 27: National Bank of
Australasia v. United Iland-in-JIand Co., supra; Campbell v. Commercial
Bank, supra, the case referred to in 4 A. C. at p. 407.

91 See In re Burton (1901) 27 V. L. R. 437. 441 : Aust. Tart. Syst. 946.

Sect. 2] STATUTORY MORTGAGE. 90!

them by executing the instrument of mortgage.02 But it seems
equally clear that such an action could not be brought on an un-
registered instrument if the covenant for payment were merely
implied by the statute and not expressed in the instrument.93

So, where the mortgage instrument contains a special clause
authorizing possession to be taken, the mortgagee may enter before
registering his mortgage, and his right to possession then relates
back to the execution of the instrument, not its registration.94

Although the statutory power of sale could not be completely
exercised unless the mortgage were registered, the mortgagee may
take the preliminary steps of giving notice of default or demand
for payment, and notice of intended sale when required by the pro-
visions of the mortgage instrument, before registration is effected,
and these notices will be valid as between the parties for the pur-
pose of making the sale under the registered mortgage effective.*"'

A condition of the admission to registration of a statutory mort-
gage— and this applies to other statu tor}- instruments96 — is that it
has been executed as required by the statutes.97 Only in England
and Ireland need the statutory- mortgage be under seal. The pre-
scribed form of mortgage in other jurisdictions is under hand only,
though the form of combined transfer and charge in Queensland
and Papua is under seal.98 Attestation is however required in
every jurisdiction ; in some cases the attestation must be by an
official witness, and in some cases an affidavit or declaration or cer-
tificate as to the execution is required. These statutory require-

"Mathieson v. Mercantile Finance Co. (1891) 17 V. L. R. 271; Sea-
brook v. McMullan (1908) 10 W. A. R. 47; Mercantile Build. Co. v.
Murphy (1888) 4 W. N. (N. S. W.) 105.

"This might happen in England or Ontario, and possibly in Leeward
Islands ; in other jurisdictions an express covenant is a necessary part of
the prescribed form. The statutory covenants are only " implied " in
England and Ontario when a " registered charge is created " : Eng. 1875. s.
23; On. 1914. s. 30. And see Aust. Torr. Syst. 908: West v. Read (1913)
13 S. R. (N. S. W.) 575.

•* Seabrook v. McMullan, supra.

n Mathieson v. Mercantile Finance Co.. supra; Seabrook v. McMullan.
supra, at p. 56. As to " demand " mortgages, see under " Power of Sale,"
sub-sect. 2. post.

"British Columbia and British Honduras are not included in this
sub-section (ante. pp. 192. 205), since the statutory mortgage does not
form part of their systems. There are however in the British Columbia
statute elaborate provisions for proof of due execution of instruments as
a condition of their registration : B. C. 1911, ss. 77-85A. In British Hon-
duras the provision on this point is meagre: B. H. 1914, ss. 35, 37.

"As to the execution and effect of statutory instruments, see Aust.
Torr. Syst. 902-918: Can. Torr. Syst. 111-115. 234; Own. & Inc. 183.

•'Aust. Torr. Syst. 907: Can. Torr. Syst. 234: Q. 1877, s. 24. sch. T;
P. 1913, s. 60. sch. 7.

222 MORTGAGES, dc. . [Ch. vr.

ments however only affect the registrability of the instrument, and
not its intrinsic value as an equitable assurance or contract between
the parties;00 the utmost that can be said is that the possession of
an instrument ready for registration might give a better equity than
if some further formality were necessary to make the instrument
registrable.1

In England the instrument of mortgage must be executed as a
deed, and must be attested by a witness who must add his address
and description; in Trinidad-Tobago no sealing is required, but a
similar attestation is sufficient, and the instrument must also (un-
less executed abroad) bear the signature of a legal practitioner " as
having prepared such instrument." 2 In New South Wales and
New Zealand the attestation of a single witness is sufficient, though
in the case of New Zealand the witness must (if the execution is
in New Zealand) add his address and description; the further
provisions of the statutes relate to the verification of the execution,
but do not appear to make any particular method of attestation or
verification essential.3 In Leeward Islands any person may be an
attesting witness, when the instrument is " executed within the
colony/' and no " declaration or certificate of such witness " is re-
quired, the registrar being given discretion to admit or refuse the
instrument for registration if he " has occasion to doubt " the
authenticit}^ of the signature ; when " executed without the colony,"
the witness must either be one of the named official persons, or he
must prove the execution by his declaration or certificate before one
of these official persons.4 In other than these five jurisdictions
attestation by, or verification before, an official person seems to be
essential in ordinary circumstances as a condition of registrability.

In Ireland sealing is made necessary, whilst in Ontario sealing
is expressly made unnecessary ; in Ontario the execution must or-
dinarily be (the registrar having a discretion), and in Ireland may
in certain cases be required to be, verified by affidavit, though in

99 Barry v. Schmidt (1913) 13 S. R. (N. S. W.) 639, 643, affd. (Barry
v. Heider) 19 C. L. R. 197; Nicols and Shepard Co. V. Skedanuk (1913)
25 West. R. 453 (AL), revg. Court below (24 West. R. 184).

1 This point of view is rather lost sight of in some of the observations
made on the question of attestation in Barry v. Heider, supra; see par-
ticularly at p. 204 of the report.

2 Ens. 1903-8 Rules, rr. 107-109 ; Own. & Inc. 183. Tr. 1902, s. 119A ;
1913, s. 2; as to the other sections (ss. 122, 123) see N. S. W. 1900, ss.
107, 108, as interpreted in Barry v. Heider, supra, at p. 204.

*N. S. W. 1900, ss. 36, 107. 108; N. Z. 1915, ss. 35, 168-171, 176.
Barry v. Schmidt and Barry v. Heider, supra.
«L. Is. 1886 (1914), ss. 147, 148.

Sect. 2] STATUTORY MORTGAGE. 223

neither jurisdiction is any particular witness or method of attesta-
tion necessary.5

In Manitoba, Saskatchewan, Alberta, and Xorth-West Terri-
tories,8 the execution is required to be verified by the witness' affi-
davit, and proof of the executant's age may also be required; the
provisions in the three latter jurisdictions are precise as to this, and
enumerate the officials before whom the affidavit is to be made. In
Alberta, however, the Court may order registration notwithstanding
defective proof of execution (s. 103).

In Federated Malay States the statute enacts expressly that the
instrument " shall be attested by one of the following persons,"
according to the place of execution, and a list of official witnesses
is given.7 This seems to be the only case of attestation by an official
witness in person being required without exception.

In the remaining eight jurisdictions — Queensland, South Aus-
tralia, Tasmania, Victoria, Western Australia, Papua, Fiji, Ja-
maica 8 — the attesting witness must either be one of certain named
official persons, or must appear before one of such persons and
verify the execution. Only in South Australia does the statute in
terms permit the registrar to dispense with the proof of execution
In special cases (s. 269).

So far execution and attestation under ordinary circumstances
has been referred to. It is necessary to touch on the special cases
of execution by attorney under power, by corporations, by married
women, and by illiterate persons.

In England, Ireland, and Ontario,9 execution by attorney is
dealt with by rules only. The power of attorney must be produced,
and in some cases filed or registered, and evidence furnished of the

5 1. 1910 O. 3, rr. 6. 8 : O. 4, r. 1, ff. 9-11 : Bro. & Gl. 31, 236. On.
1914, ss. 31 (2), 102; 1911 Rules, rr. 27, 64, 76.

6 If. 1913, s. 94 ; Sas. 1917. ss. 56, 57, 209 ; Al. 1906, ss. 102, 103, 145 :
Can. 1906, ss. 140, 141, 195. See Can. Torr. Syst. Ill ; Nicots and Shepard
Co. v. Skedanuk (1913) 24 West. R. 184. 25 ib. 453 (Al.).

7 F. If. S. 1911, ss. 21, 71. Some mistake seems to have been made
in adapting s. 71 from the Fiji statute, as the word " colony '' is insensible,
unless it refers to the adjacent Crown colony of the Straits Settlements.

• Q. 1861, ss. 56, 115, and 1877, s. 5 : S. A. 1886, ss. 56, 267-269 ; Tas.
1862, s. 35. and 1886. s. 29 ; V. 1915. s. 191 : W. A. 1893. s. 145 ; P. 1913.
ss. 114, 115; Fi. 1876 (1906), ss. 35. 94. 95; J. 1888. s. 112. And see
Aust. Torr. Syst. 909. The word " shall " occurs in all these enactments,
and this distinguishes them from New South Wales and New Zealand,
as to which see Barry v. Heider (1914) 19 C. L. R. 197, 204. In Victoria
and Western Australia special statutes deal with execution abroad during
the war: V. — Execution of Instruments Act 1915 (No. 2757) : W. A. —
Execution of Instruments Act 1916 (No. 8).

»Eng. 1903-8 Rules, r. 110; Own. & Inc. 183. I. 1910 O. 3, r. 7 ;
Bro. & Gl. 236. On. 1911 Rules, rr. 58, 59.

224 MORTGAGES, dc. [Ch. vi.

power being still effectual. In the other jurisdictions powers of
attorney are the subject of express enactment in the statutes. In
every one of these, except Manitoba,10 a statutory form of power
of attorney is provided for. In Leeward Islands " the statutory
form is only for use when the instrument is executed in the colony ;
the statute also differs from others in merely providing for the form
of instrument and being silent as to its registration, revocation, &c.
In Victoria,12 Western Australia, Jamaica, and Federated Malay
States,13 the statutory form only is expressly authorized, though it
seems to be implied that powers in ordinary form may be used as
well since in these jurisdictions the requirement of attestation ap-
plies to " instruments and powers of attorney " ;14 but some refer-
ence to registered land should be made in a power intended to be
exercised in connexion with land on the register.15 The enactment
last mentioned appears (in a modified shape) in the Fiji statute,16
where an ordinary as well as a statutory form is also referred to.

The scheme in these five last-mentioned jurisdictions, and in
Manitoba and the remaining jurisdictions, is that the power of
attorney shall be registered, or a copy filed in the registry,17 that
notice of revocation shall also be registered, and that transactions
registered prior to notice of revocation being registered are to be
valid. In all these remaining jurisdictions (except South Aus-
tralia,18 where it is distinctly implied) the statutes expressly per-
mit ordinary as well as statutory forms of power to be used. In
New Zealand and Trinidad-Tobago 19 the ordinary conveyancing
and property statutes are referred to as applying to powers of at-
torney that deal with registered land, but this seems to be implied

10 M. 1913, s. 166; Can. Torr. Syst. 402.
11 L. Is. 1886 (1914), s. 146.

12 V. 1915, ss. 189, 190; Aust. Torr. Syst. 545, 912. These two sec-
tions (ss. 189, 190) re-enact ss. 150 and 151 of V. 1890. Sects. 187-204
of the Instruments Act 1890 (No. 1103), together with ss. 54 and 55 of
the Conveyancing Act 1904 (No. 1953, taken from the English Conveyancing
Acts), are now re-enacted as ss. 206-227 of the Instruments Act 1915 (No.
2672).

13 W. A. 1893, ss. 143, 144; Aust. Torr Syst. 634, 912. J. 1888, ss.
' 110, 111. F. M. 8. 1911, ss. 58, 59.

14 V. 1915, s. 191 ; W. A. 1893, s. 145 ; J. 1888, s. 112 ; F. M. S. 1911,
s. 71, and Powers of Attorney Enactment 1912 (No. 1), s. 3.

15 Glazy v. Registrar of Titles (1902) 4 W. A. R. 113.

16 Fi. 1876 (1906), ss. 76, 94.

17 Registration, and the entry of ;i note of the power uu the register,
are not the same thing: Registrar of Titles v. Carey (1905) 9 Str. Sett. R.
Appx. 35 (F. M. S.). 18S. A. 1886, ss. 155-160.

19 N. Z. 1915, ss. 158-163 ; Tr. 1902. ss. 87, 88, and Powers of Attorney
Ordinance 1914 (No. 1). The New Zealand general enactments are ss.
100-103 of the Property Law Act 1908 (No. 152).

Sect. 2] STATUTORY MORTGAGE. 225

in other jurisdictions, though in Queensland and Papua 20 the
enactments differ from all others and the registrar is expressly
relieved of the necessity for requiring evidence of non-revocation.
In New South Wales,21 the statutory power contains the declaration
usually inserted in every ordinary power governed by New South
Wales law, but there is no such reference to the general law in the
statutes of Tasmania or Fiji,22 nor in those of Saskatchewan, Al-
berta or North- West Territories.23 In some jurisdictions 24 the
general statutes on powers of attorney contain references to the
registration statutes.

The statutory forms of power of attorney, like other statutory
instruments, are not under seal ; in New Zealand 25 it is enacted
that sealing is not necessary. In jurisdictions in which a power
of attorney does not require actual registration, but only to be noted
on the register after a copy has been filed or deposited, it need not
apparently, in the absence of express legislation, be attested in the
same manner as registrable instruments. Powers of attorney are,
however, placed on the same footing in this respect as registrable
instruments in Victoria, Western Australia, Jamaica, Fiji, and Fed-
erated Malay States, and require special attestation.26

In most jurisdictions the execution of statutory instruments by
corporations is expressly referred to; in some statutes the subject
is not mentioned at all. In South Australia, Victoria, Western
Australia, New Zealand, and Jamaica,27 the statutes expressly enact
that the affixing of the common seal shall be equivalent to signature,
but this would seem to be implied without such express enactment.28
In Western Australia, Victoria, and Jamaica, the seal of the at-
torney of a corporation whose head office is out of the jurisdiction
is to be deemed the common seal of the corporation, and in New
Zealand execution may be by attorney: this also would seem to be

» Q. 1861, ss. 104, 107. 108, and 1877, s. 13; P. 1913, ss. 105-107.

" N. S. W. 1900, ss. 88, 89, sch. 12 ; Aust. Torr. Syst. 127, 912.

»Tas. 1862, ss. 70. 75; Aust. Torr. Syst. 440. Fi. 1876 (1906), ss.
76, 77.

aSas. 1917, ss. 125-127; Al. 1906, ss. 72, 73; Can. 1906. ss. 110-113.
And see Can. Torr. Syst. 402, since the writing of which the Saskatchewan
enactment has been amended.

"Trinidad-Tobago — Powers of Attorney Ordinance 1914 (No. 1) ; Fed-
erated Malay States — Powers of Attorney Enactment 1912 (No. 1).

25 N. Z. 1915, s. 162.

MV. 1915, s. 191; W. A. 1893, s. 145; J. 1888, s. 112 (1889, s. 25) ;
Fi. 1876 (1906), s. 94; F. M. S. 1911, s. 71. Registrar of Titles v. Carey.
(1905) 9 Str. Sett. R. Appx. 35 (F. M. S.).

27 S. A. 1886. s. 270 ; V. 1915, s. 175 ; W. A. 1893, s. 130 ; N. Z. 1915,
s. 173 ; J. 1888, s. 99.

18 Registrar of Titles v. Carey, supra.

r.t.l. — 15

•><>(; MORTGAGES, dc. [Ch. vi.

implied. In Western Australia the affixing of the common seal is
not only " in lieu of signing," but also of " obtaining the attesta-
tion of" an instrument. In New Zealand the affixing of the com-
mon seal is " sufficient proof to the registrar " of the authenticity
of the instrument, but no indemnity from State funds can be re-
covered for loss occasioned by " the improper use of the seal of " a
corporation.*" In South Australia, Victoria, and Jamaica, no
special attestation would seem to be required, nor in those jurisdic-
tions— Ireland, Manitoba, Leeward Islands, Fiji, Federated Malay
States — where nothing at all is enacted as to execution by corpora-
tions.30 In England also there is no such enactment, the rules
merely providing for adaptation of prescribed forms to the case of
corporations.31

In Saskatchewan, Alberta, and North- West Territories32 instru-
ments under the seal of a corporation are expressly excepted from
the ordinary requirement as to attestation; but in Saskatchewan
(as in New Zealand) indemnity cannot be recovered for loss through
improper use of the seal. In all these jurisdictions — 'South Aus-
tralia to Saskatchewan — where no special mode of execution is re-
quired by the registration statutes, the seal must of course be affixed
in accordance with the corporation's own regulations, and as to this
the registrar would be entitled to information; if not duly affixed,
registration could apparently be refused.33

In New South Wales, Queensland, Tasmania, Papua, and
Trinidad-Tobago,34 a certificate is required from an officer of the
corporation that the seal " was affixed by the proper officer, verified
by his signature." Only in Ontario is more than this required;
there verification by an attesting witness is necessary, and also an
affidavit by an officer of the corporation as to the mode of execu-
tion.3" In Tasmania and New Zealand 30 it is enacted that a cor-

29 N. Z. 1915, ss. 173, 193, which replace N. Z. 1885, ss. 166, 185,
cited in In re Kaihu Valley Ry. Co. (1890) 8 N. Z. R. 522.

30 See Aust. Torr. Syst. 915 ; Can. Torr. Syst. 111.

31 Eng. 1903-8 Rules, r. 103.

32Sas. 1917, ss. 56, 57, 170: Al. 1906, ss. 102. 103; Can. 1906, ss.
140, 141.

83 A British Columbia case illustrates this : In re Land Registry Act
(1916) 34 West. R. 466. And see Registrar of Titles v. Carey (1905) 9
Str. Sett. R. Appx. 35 (F. M. S.), as to the adaptation of a corporation's
execution to statutory requirements of signature and attestation ; this
case was decided under the repealed statute of Selangor, and the corres-
ponding enactment in F. M. S. 1911 (s. 71) is different, though the word-
ing of the repealed schedule is reproduced in F. M. S. 1911, sch. 2, f. D.

»N. S. W. 1900, s. 106; Q. 1861. s. 114; Tas. 1862, s. 95; P. 1913. s.
113; Tr. 1902, s. 120. 33On. 1911 Rules, r. 60.

36 Tas. 1886, s. 30 ; N. Z. 1915, s. 175.

Sect. 2] STATUTORY MORTGAGE. 227

poration may authorize some person to certify on its behalf the cor-
rectness of instruments tendered for registration, &c.

The tender of an instrument for registration also involves, in
the case of corporations, some enquiry into its validity, beyond the
mere formal execution. An enquiry might indeed be justified
when the mortgage is in favour of the corporation, as well as when
it is a security over the corporation's own land. The limits of the
registrar's right to be satisfied of the propriety of a particular trans-
action cannot be laid down satisfactorily, as the authorities now
stand. If the transaction is altogether beyond the power of the cor-
poration under its constitution, registration could be refused, but
apparently not if it were merely doubtful whether the particular
transaction falls within the corporation's admitted powers.17 Only
in England is express authority conferred on the registry to re-
quire evidence of the validity of a corporation's transactions.38

A consideration of the relevant Companies Act may often be
necessary where a company is dealing with registered land. Only
in England and Ontario 39 do the registration statutes contain any
provision linking up these statutes with the Companies Acts. In
Ontario a " companies register " is kept at the registry, and entry
therein is made equivalent to registration for the purpose of the
registration statute. In England, on the registration of .a " charge "
b}' a company, a certificate must l>e produced shewing either that the
charge has been, or does not require to be, registered under the Com-
panies (Consolidation) Act 1908. It has been held in Victoria that
the enactment in the Companies Act requiring registration of mort-
gages does not apply to registered land, and that registration at the
land registry under the registration statute can be effected and is
sufficient.40 In some jurisdictions local registration is essential to
enable foreign and extra-territorial British companies to hold any

Rem v. Rcfiistmr of Title* (1915) 20 C. L. R. 878; Aust. Torr. Syst.
788, 861, 910: Can. Torr. Syst. 94-96. In Campbell v. Morgan [19191 1
\Y. \V. R. 268 (Man.) an assurance to an unlicensed corporation was held
valid.

3,1 Ens. 1903-8 Rules, r. 258.

■ Eng. 1903-8 Rules, r. 161 ; On. 1911 Rules, r. 66. In England s. 14
of the 1900 Act is now replaced by s. 93 of the Companies (Consolidation)
Act 1908.

• Coronation syndicate G. M. Co. to Collins [1911] V. L. R. 78. Sect
235 of the Companies Act 1890 is now replaced by s. 101 of the Companies
Act 1915 (No. 2631), corresponding with s. 93 of the English Act of
1908 : though the language of the repealed and present enactments differs,
the case cited seems still applicable. In British Columbia registration at
the land registry has been held insufficient: Dalton v. Dominion Trust Co.
[19181 3 W. W. R. 42 (B. 0.) ; but the Companies Acts themselves (in
British Columbia i appear to make registration at the land registry suf-
ficient for purposes of priority : Companies Act Amendment Act 1916 (c.
30). as. 4. 5. amending s. 102 of Act of 1911 (c. 39), po#*, p. 276.

228 MORTGAGES, dc. [Ch. vi.

interest in land in the jurisdiction, and occasionally registered land
is expressly referred to by the companies statute in this connexion.41
In the absence of any statutory prohibition a foreign company, and
a fortiori a company incorporated in some part of the British do-
minions outside the jurisdiction,, would seem to be entitled to be
registered as owner or mortgagee and deal with its interest.42

A corporation, once registered as owner, may get the benefit of
the warranty of title conferred by registration so as to be able to
force the title on a purchaser, even though the acquisition of the
land by the corporation was ultra vires of its constitution.43

The execution of instruments by married women requires spe-
cial attention in some jurisdictions. In Manitoba and Federated
Malay States the statutes are silent on the subject of married wo-
men's interests. In Tasmania, Saskatchewan, and Alberta,44 the
statutes only refer to the subject by providing for the registration
of a married woman in her married in lieu of her maiden name. In
Ontario, New Zealand, North- West Territories, and Trinidad-
Tobago,45 a married woman is placed by the statutes upon the foot-
ing of a feme sole, and only in New Zealand and North- West Ter-
ritories is re-registration in her married name mentioned. On the
other hand, in Fiji a formal acknowledgment of an instrument exe-
cuted by a married woman is required in every case ; whilst in Lee-
ward Islands when the instrument is executed abroad acknowledg-
ment is required, but not otherwise.40 In Jamaica 47 a husband
is entitled to be registered in respect of lands of his wife not held
for her separate use, but nothing is said as to her execution of in-
struments. In the remaining jurisdictions — England, Ireland,
New South Wales, Queensland, South Australia, Victoria, Western
Australia, Papua 48 — the law of married women is substantially

41 For instance, Alberta: Foreign Companies Ordinance 1903 (c. 14),
s. 11, as amended by 1913 (2nd Sess.) c. 2, s. 2 ; British Columbia: Com-
panies Act Am. Act 1917 (c. 10). And see Aust. Torr. Syst. 733.

42 Mutual Assurance Soc. v. Registrar-General (1888) 1 Q. L. J. 177;
Ex p. New Vancouver Coalmining Co. (1890) 2 B. C. R. 8, 9 B. C. R. 571 ;
Balfour to Public Trustee [1916] V. L. R. 397 (English public trustee as
corporation sole) ; Commonwealth v. State of New South Wales (1918) 25
C. L. R. 325 (Commonwealth as corporation sole).

43 Hudson's Bay Ins. Co. v. Creelman [1919] 3 W. W. R. 9 (Privy
Council ) .

44 Tas. 1862, s. 78 ; Sas. 1917, s. 202 ; Al. 1906, s. 83.

45 On. 1914, s. 103; N. Z. 1915, ss. 129, 172; Can. 1906, ss. 16, 17;
Tr. 1902, s. 66. An illustration is Wells v. District Land Registrar (1901)
21 N. Z. R. 215 ; see Aust. Torr. Syst. 911.

*Fi. 1876 (1906), s. 119; L. Is. 1886 (1914), ss. 151, 152.

47 J. 1888, s. 104.

48 Eng. 1875, ss. 44, 45 ; Br. & Sh. 191. I. 1891. s. 73 ; 1910 O. 10, r. 3 ;
Bro. & Gl. 181. N. S. W. 1900, ss. 2, 92, 109 ; Aust. Torr. Syst. 911. Q.
1861, ss. 30, 87. 112; 1877, s. 29. S. A. 1886, ss. 189. 190, 255-257. V.
1915, ss. 3, 124. 267. W. A. 1893, ss. 3, 85, 226. P. 1913, ss. 4, 95, 96.

Sect. 2] STATUTORY MORTGAGE. 229

the same as in the case of unregistered land, the Married Women's
Property Acts being expressly or impliedly made part of the regis-
tration statutes, and the question of acknowledgment depending on
whether the land is separate property or not.49

The dower rights of married women formerly gave some trouble.
In many jurisdictions the right to dower has been completely abro-
gated. In Alberta, on the contrary, dower has by a recent statute
been partially revived; so, substantially in Saskatchewan.50

The operation of an instrument executed by a person under age
is not expressly dealt with in the statutes ; it would of course be no
greater or less than that of any other imperfectly executed instru-
ment.51 In Manitoba, Saskatchewan, Alberta, and Xorth-West
Territories,52 the registrar is expressly empowered to require
evidence that the person executing an instrument is of full age.
In some jurisdictions — for instance, Ontario 53 — the document veri-
fying an execution expressly refers to the executant being of full
age.

In the case of illiterate executants the proper course is to follow
the practice under which the witness certifies having explained the
instrument before execution. In some jurisdictions — for instance,
British Columbia 54 — this course is expressly prescribed. Only in
Trinidad-Tobago is the registrar authorized by statute to refuse
registration when this has not been done.55

A further peculiarity of the Trinidad-Tobago statutes is that a
mortgage (and some other statutory instruments) cannot be regis-
tered unless prepared by a legal practitioner, an exception being
made for instruments executed abroad.56 In England and the Aus-
tralasian jurisdictions there is the same prohibition against unquali-
fied persons preparing legal instruments relating to registered land
as in the case of unregistered land, and in some of the latter a special
class of persons, called land brokers, has been created who are
authorized to prepare statutory instruments.57

"Aust. Torr. Syst. 731, 911. 990; Green v. Cooke (1908) 9 S. R. (N.
S. W.) 1. In Saskatchewan some enactments more properly belonging to
M. W. P. Acts have been placed in the registration statute itself: Sas.
1917. ss. 200, 201.

" Alberta— Dower Act (1917, c. 14) ; Manitoba— Dower Act (1918, c.
21) : Saskatchewan — Homesteads Acts (1915), c. 29; 1916. c. 27). See ante,
p. 169.

"Execution by infants of a particular class of instruments is referred
to in a Western Australian statute : W. A. 1909, s. 9.

■It. 1913, s. 94; Sas. 1917, s. 209; Al. 1906, s. 145; Can. 1906, 8.
195. a See form of affidavit under On. 1911 Rules, r. 64.

"B. C. 1911. s. 77 (2).

58 Tr. 1902, s. 122 (1916, e. 2). "Tr. 1913, s. 2.

57 Own. & Inc. 33. 73 ; Aust. Torr. Syst. 82, 917 ; HoxceU v. Owen (1882)
16 S. A. R. 140.

230 MORTGAGES, tC-c. [Cn. VI.

Iii some jurisdictions it is essential that the mortgage be exe-
cuted in duplicate, in some such execution is merely permitted, and
in some provision is made for official copies of the single original
which is registered. The jurisdictions in which duplicate execu-
tion is required arc : New South Wales, Queensland, Tasmania,
Papua, New Zealand, Fiji, Federated Malay States, Trinidad-To-
bago, B8 though iu Trinidad-Tobago it may be dispensed with by
consent of the mortgagee. In these jurisdictions, the duplicate
execution being peremptorily required by the statutes, each part is
in a sense an original. But the part delivered to and retained by the
mortgagee is really only a duplicate " of that which forms the
effective instrument," i.e., the registered part retained in the
registry." 59

In South Australia, Victoria, Western Australia, Jamaica,
Manitoba (in Manitoba by necessary implication),60 mortgages
" may " be executed in duplicate, and in Western Australia some-
times two copies must be lodged at the registry. The above men-
tioned considerations which, in New 'South Wales, &c, make the
part or copy at the registry the " effective instrument " apply a
fortiori when duplicate execution is resorted to. The nature and
effect of the transaction is not affected by duplicate execution.01
These considerations also apply in the same way in Saskatchewan,
Alberta, and North-West Territories, where nothing is said about
execution in duplicate, though such execution appears to be not
uncommon in practice and to be contemplated by some of the en-
actments relating to the discharge of mortgages.02 On the other
hand, in Manitoba, Saskatchewan, Alberta, and North-West Terri-
tories,63 the necessity for duplicate execution seems to have been
designedly avoided by the provision made for issuing to the mort-
gagee, in the three first-named, a " certificate of charge," and in
North-West Territories a " certified copy of the certificate of title,"
on which of course would be noted the registration of the mortgage.

58 N. S. W. 1900, s. 36 ; Q. 1861. s. 35 ; Tas. 1S62, s. 35 ; P. 1913,
s. 24; N. Z. 1915, s. 35; Fi. 1876 (1906). s. 35: F. M. S. 1911. s. 21;
Tr. 1902, s. 41.

-»»Ivetj v. Commrs. of Taxation (1903) 3 S. R. (N. S. W.) 184; Payne
v. Rex [1902] A. C. 552, 560; Rex v. Toronto General Trusts Corp. [1917]
1 W. W. R. 823 (Al.) affd. Toronto General Trusts Corp. v. Rex (1917)
56 Can. S. 0. R. 26, where Aust. Torr. Syst. 761 is cited and approved, and
affd. by P. C. [1919] A. C. 679. Aust. Torr. Syst. 761, 905.

60 S. A. 1886, s. 55; V. 1915. s. 53; W. A. 1893, ss. 53. 105 (1909, s.
13) ; J. 1888, s. 44; M. 1913, s. 89.

61 Great Central Freehold Mines v. Chapman (1904) 29 V. L. R. 910.

82 Al. 1906, s. 63 ; Can. 1906, s. 100. Toronto General Trusts Corp. v.
Rex, supra.

•M. 1913. s. 127: Sas. 1917. s. 101: Al. 1906. s. 71; Can. 1906, s. 97.

Sect. 2] STATUTORY MORTGAGE. 231

In England, Ireland, Ontario, and Leeward Islands,64 execution
in duplicate is not contemplated at all, but provision is made for
what is really (even when not so called) a certified copy of the
registered instrument of mortgage. Here there can be no question
as to the relative value as evidence of the registered original and
certified copy respectively — the copy in the possession of the mort-
gagee is prima facie evidence only. In England, Ireland, and On-
tario, the certified copy is embodied in a "certificate of charge/'
which in England can be adapted to the case of incumbrances other
than statutory mortgages (r. 181). In England also special provi-
sion is made with respect to building society mortgages (it. 121,
122), and in their case the original instrument (after being regis-
tered) may be delivered to and retained by the mortgagees (the
society) as a "certificate of charge," whilst the certified copy is filed
at the registry.

In England, Ireland, and Ontario,6"' it is emitted that only a
registered owner is entitled to deal with land by registered disposi-
tion. This seems to be implied in the statutes of other jurisdic-
tions.** It is, however, a common practice for a mortgage or other
instrument to be executed by a person who intends to be, but is not
yet actually, registered as owner. In Kngland, Ontario, Xew Zea-
land, and Tasmania,07 such transactions are expressly referred to
in the statutes and made valid. But instruments thus executed
operate fully only upon registration, and when such a transaction
becomes a registered one there seems to be no room for any ques-
tion as to the original validity of the execution of the instrument
upon which it is based. Thevaliditv of such transactions seems to
be fully accepted in Canada as well as in Australia,08 though ap-
parently not in Ireland.00

In England, Victoria, and Western Australia,70 special enact-
ments enable a pending transaction to be completed with the cer-
tainty of obtaining priority when actually registered. This is done

"Eng. 1875, s. 22; 1903-8 Rules, rr. 121. 122. 181, 259. 259B. I. 1891.
ss. 40, 81; 1910 O. 8, r. 2 ; Bro. & Gl. 153. 258. On. 1914. s. 30; 1911
Rules, r. 48. L. Is. 1886 (1914). s. 49.

65 Eng. 1S75, s. 49; I. 1891. s. 44; On. 1914. s. 68.

""See for instance Re Rivers (1893) 1 Terr. R. 464 — " the only person
who could execute a transfer was the registered owner of the land."

8TEng. 1897, s. 9 (6) ; 1903-8 Rules, rr. 96, 104, 105, 157; Own. & Inc.
188, 202. On. 1914, s. 69. X. Z. 1915. s. 69 ( 1 ) . Tas. 1886, s. 17. Aust.
Torr. Syst. 912.

ssSee Can. Torr. Syst. 230; Aust. Torr. Syst. 912.

89 See Bro. & Gl. 144.

79 Eng. 1903-8 Rules, r. 117; Own. & Inc. 138. 139, 170. V. 1915, S3.
196-200: W. A. 1893, ss. 148-150; Aust. Torr. Syst. 979.

232 MORTGAGES, dc. [Ch. vi.

in England by entering a priority notice, and in Victoria and West-
ern Australia by obtaining a stay of registration for 48 hours. The
same advantage could only be had in other jurisdictions by with-
holding payment of the mortgage money to the borrower until the
mortgage was actually entered on the register.71

It is for the mortgagee to register the mortgage, and this should
be done as soon as possible after execution. In the event of the
actual time of registration being material, the time stated in the
registry's endorsement on the instrument will be conclusive, even
though this may be merely the time at which the instrument was
handed in for registration, and although the entry stating the time
may not have been made for some days afterwards.72 This time of
handing in the registrar may be ordered to insert.73 In many juris-
dictions the statutes expressly provide for the date of presentation
being the date of registration, and the Victorian case cited brings
into line on this point those jurisdictions in which the statutes make
no such express provision.

The mortgagee's right to insist on registration can be enforced
on his own initiative, and is not merely a right to which the owner
of the land is entitled or in which his concurrence is required.74
The death of the owner of the land between execution and registra-
tion of the mortgage would seem not to affect the validity of the
registration,75 even in jurisdictions where no express provision is
made by the statutes, though such provision is made in South Aus-
tralia and Manitoba.76 Should the mortgagee die before registra-
tion, the registration (if effected) would seem to create a valid
charge on the land, but the proper course would be for the mort-
gagee's representative to enter a caveat and subsequently apply for
registration of the mortgage at the same moment as he applies for
its transmission to himself on the register. In Queensland and
Papua 77 the interest of the deceased mortgagee will be transmitted
just as though he had already been registered. In the event of the
mortgagee's solicitor delaying registration and so permitting a
•prior entry to be made on the register, the mortgagee may be en-
titled to recover damages for any loss suffered, such delay being

"Own. & Inc. 165, 202; the mortgagee is of course in a stronger
position than a purchaser, and can insist on the transaction being com-
pleted in any way he chooses. Aust. Torr. Syst. 842, 900.

"Great Central Freehold Mines v. Chapman (1904) 29 V. L. R. 940;
Re Sinclair (1913) 23 West. R. 286 (Al.).

73 In re Bank of Hamilton and McAllister (1912) 22 West. R. 849 (AL).

74 Perpetual Executors Assoc, v. Hosken (1912) 14 C. L. R. 286.
"Aust. Torr. Syst. 790, 791. But as to Ireland, see Bro. & Gl. 144,

cited ante in note 69. 7G S. A. 1886, s. 59 : M. 1913, s. 171.

77 Q. 1877, s. 49 ; P. 1913, s. 104.

Sect. 2] STATUTORY MORTGAGE. 233

prima facie evidence of actionable negligence on the solicitor's
part.78 It is not however always or necessarily negligence for per-
sons in the position of executors or trustees to leave a mortgage un-
registered in the hands of their solicitors.79

The general method of registering a mortgage is by entering on
the register a note of the existence of the mortgage and filing the
instrument itself,80 as in the case of leases (post, Chap. VII, Sect.
2), and not by cancelling the owner's register and registering the
mortgagee afresh as may be done in the case of transfers. The
certificate of title must be produced for endorsement, and the same
considerations apply as to production on registration of a transfer
or a lease (post, Chap. VII, Sect. 1, sub-sect. 2).

The general result of the registration of the mortgage is to
convert into a legal security what was, under the instrument itself
unregistered, in effect a mere equitable security. But the opera-
tion and detailed method of registration are not the same in all
jurisdictions. On one point England and Ireland resemble each
other and differ from all other jurisdictions — in requiring the in-
strument to be under seal (ante, p. 222), thus making it operative
at once as a deed.

In England express provision is made for omitting from the
register itself many entries by which certain covenants and powers
are implied or negatived, in cases where statements to the effect of
these entries are contained in the registered instrument.81 This is
tantamount to embodying the instrument in and making it part of
the register. In Ireland nothing is said in the statutes or rules
as to any such constructive embodiment of instruments, though
entries are frequently directed to be made in the register, and sub-
sidiary registers are provided for.82 In Ontario S3 some entries
are directed to be made in the register, whilst in some cases this
actual entry is dispensed with; it seems however to be intended
(s. 80) that mere registration of an instrument shall have the same
effect as a corresponding entry actually made in the register. But
it is to be presumed that a short note of the existence of the regis-
tered instrument is in every case made on the folium constituting
the register of the title, and it would thus seem that in all these
three jurisdictions a registered instrument must be taken as being

" Alexander v. Simpson (1903) Jamaica, unreported, citing Hunter v.
Caldwell (1847) 10 Q. B. 60, 82.

n Austin v. Austin (1906) 3 C. L. R. 516.

"In re Goldstones Mortgage [1916] N. Z. R. 19, 26, referring to Aust.
Torr. Syst. 760. 945.

" Eng. 1875, ss. 23-28 ; 1897, s. 9 ; 1903-8 Rules, rr. 99, 159, 171. 172.

■ I. 1891, ss. 47, 54 ; 1910 O. 4; r. 23 ; Bro. & Gl. 154, 165.

"On. 1914, ss. 30 (3), 31-37, 80; 1911 Rules, r. 27.

234 MORTGAGES, <lc. [Ch. VI.

embodied in the register for all practical purposes, just as though
it were there set out in full.84 In Ontario, as in the majority of
jurisdictions, the registered instrument has the effect of a deed.8"'

In eight jurisdictions — Xew South Wales, Queensland, South
Australia, Tasmania, Papua, Xew Zealand, Fiji, Trinidad-To-
bago 86 — the registered instrument is expressly embodied in and
made part of the register, and given the effect of a deed. Here the
registration of the mortgage has expressly been held to be — partly
through the medium of notice — equivalent to placing on the regis-
ter every clause in the instrument.87 'So in Manitoba and Feder-
ated Malay States,88 where however the effect of a deed is not given
to the registered instrument.

In Victoria and Western Australia the operation of a deed is
conferred on the statutory instrument, and though nothing is ex-
pressly said b}r the statutes as to the instrument being embodied in
the register, every registered instrument must (as in other Austral-
asian jurisdictions) be noted on the proper folium of the register,
and the person named in the instrument then becomes the owner
of the interest dealt with.80 In Manitoba, Jamaica, Leeward Is-
lands, Saskatchewan, Alberta, and North-West Territories,90 noth-
ing is said as to registered instruments having the efficacy of deeds,
but (as in Victoria and Western Australia) the registered instru-
ment must be noted on the register and then operates to vest the
interest dealt with. The effect of these enactments in Victoria,
Manitoba &c, seems to be to embody the registered instrument in
and make it part of the register, just as in New South Wales, &c.
The fact that there are in some jurisdictions subsidiary registers

84 The New Zealand ease of In re Gold stone's Mortgage U916] N. Z. R.
19, 439, seems in point.

85 On. 1914, s. 102; Beatty v. Bailey (1912) 26 O. L. R. 145. Ap-
parently the effect of a deed is conferred independently of registration.

86 N. S. W. 1900, s. 30 : Q. 1861, ss. 34. 35 ; S. A. 1886, s. 57 ; Tas. 1862,
s. 35; P. 1913, s. 24; N. Z. 1915, s. 35; Fi. 1876 (1906). s. 35; Tr. 1902.
s. 41.

87 In re Goldstone's Mortgage, supra, referring to Aust. Torr. S'yst. 760.
945. Sect. 10 of the 1913 Act. referred to in this case, is now re-enacted
in N. Z. 1915, s. 104.

^M. 1913, s. 89; F. M. S. 1911, s. 21.

89 V. 1915, ss. 51, 58, 124 ; W. A. 1893. ss. 52, 60, 85. Sects. 124 and
85 of these statutes differ from other enactments, and run : " Every instru-
ment shall be deemed of the same efficacy as if under seal," &c, with
which compare On. 1914, s. 102 (supra) ; but registration is essential to the
operation of the instrument as an incumbrance. In Miller v. Commr. for
Rys. (1900, 2 W. A. R. 28, 40) the circumstance that the instrument there
in question was registered is not specially referred to.

90 M. 1913, s. 89; J. 1888. ss. 43, 46; L. Is. 1886 (1914). ss. 37, 39-41;
Sas. 1917, s. 58: Al. 1906, ss. 41, 60; Can. 1906, ss. 76, 94.

Sect. 2] STATUTORY MORTGAGE. 235

(as in Ireland, Victoria, Western Australia, Fiji, Saskatchewan),'1
seems not to affect the general principle that registered instruments
constitute part of the register.

The enactments in Xew South Wales, Queensland, South Aus-
tralia, Tasmania, Victoria, Western Australia, Papua, Xew Zea-
land, Fiji, and Trinidad-Tohago, make the mortgage instrument,
when registered, "to all intents and purposes a deed."92 But it
is not clear how the interest of the mortgagee is affected by his reg-
istered mortgage being constructively converted into an instrument
under seal. Possibly the advantages of a specialty debt under limi-
tation Acts might be acquired 93 within the jurisdiction, but out-
side the jurisdiction — beyond the territorial operation of the reg-
istration statute — the debt would still be merely one of simple con-
tract.94 Possibly also the doctrine of estoppel by deed might 1k>
invoked if necessary.9"' The registration of the mortgage would
give it the effect of a deed so as to operate as a merger of rights under
any contract leading up to it.90 In some instances statutes other
than the registration statutes have enacted that a statutory instru-
ment shall be for certain purposes included in the word " deed,"
but apart from this the unregistered statutory instrument is not
(except in England and Ireland, occasionally in Queensland and
Papua, and possibly in Ontario, Victoria, and Western Australia)
necessarily a deed or equivalent to a deed, even in those jurisdictions
— Xew South Wales, &c. — which give it the effect of a deed on reg-
istration.

In Manitoba, Saskatchewan, Alberta, Xorth-West Territories.
Jamaica, Leeward Islands, and Federated Malay States, no ques-
tion can arise as to the instrument of mortgage in the usual statu-
tory form — registered or unregistered — being technically a deed or
its equivalent. If the efficacy of an instrument under seal is de-
sired, the statutory instrument must be executed as a deed by the
party who is to be bound sealing it in the ordinary way; if it is
neither executed under seal nor made for valuable consideration,

91 I. 1891. s. 54 : V. 1915. ss. 52, 141 ; W. A. 1893. s. 101. and 1909.
s. 3: Fi. 1876 (1906), s. 49 ; Sas. 1917, ss. 28, 29.

n Miller v. Commr. for Rys..' supra. This view seems preferable to
that taken in Kelly v. Fuller (1867, 1 S. A. R. 14), where registration was
held not to confer the same efficacy with regard to estoppel that an instru-
ment under seal would have had: and see Sinclair v. Gumpertz (1898, 15
W. X. (X. S. W.) 125). where Kelly v. Fuller was not approved of.

"This is illustrated by Beatty v. Bailey (1912) 26 O. L. R. 145.

w Payne v. Rex (1901) 26 V. L. R. 705. 752, [1902] A. C. 552, 560;
Aust. Torr. Syst. 909, 910.

* Sinclair V. Gumpertz, supra; Milhr v. Commr. for Rys. supra.

"TVest v. Read (1913) 13 S. R. (X. S. YV.) 575.

236 MORTGAGES, &c. [Ch. vi.

registration (so it has been held) will not give the statutory instru-
ment any greater effect than would be accorded to any other written
document which was neither under seal nor valid as a contract.97
This view is however not inconsistent with the view that registra-
tion does make a statutory instrument completely operative as dis-
tinguished from a mere inchoate contract, and perhaps the regis-
tered instrument does under some circumstances possess an efficacy
superior even to an instrument under seal.08 Thus, the execution
of a statutory instrument of mortgage under seal will not make the
mortgage a specialty debt out of the jurisdiction so as to govern the
situs of the debt, but the situs will be in the jurisdiction in which
the mortgage is registered."

The instrument of mortgage, however, not being technically a
deed in the majority of jurisdictions, many rules governing the
construction of written instruments will not apply where those
rules concern deeds only. Thus, it seems clear that the statutory
mortgage, like any other statutory instrument not under seal, may
be signed in blank, which would not be permissible were it a deed.1

SUB-SECTION 2 RIGHTS AND LIABILITIES OF THE MORTGAGEE.

The statutory mortgage is a charge only, and not a conveyance
of the land to the mortgagee. The statutes therefore provide, some-
times expressly and sometimes impliedly, and with varying degrees
of precision in the different jurisdictions, that the mortgagee shall
have certain rights for the purpose of making his security effective.
Incidentally, his liabilities are also the subject of enactment, these
liabilities being for the most part correlative with the rights of the
owner of the land.

The rights of the mortgagee may be classified under the follow-
ing heads:

1. Benefit of owner's covenants.

2. Eight to distrain.

3. Power to enter and take possession.

4. Power to lease.

5. Power of sale. i

"Great Western Lumber Co. v. Murrin [1917] 1 W. W. R. 945 (AL).

98 Toronto General Trusts Corp. v. Rex (1917) 56 Can. S. C. R. 26
(now affd. by P. C. [1919] A. C. 679; and see reporter's note to Great
Western Lumber Co. v. Murrin, supra.

99 Toronto General Trusts Corp. v. Rex, supra.

1Aust. Torr. Syst. 908; Bailey v. Cribb (1884) 2 Q. L. J. 62; Arnot
v. Peterson (1912) 21 West. R. 153 (AL) ; Can. Torr. Syst. 235; Dodds
v. Harper (1916) 37 O. L. R. 37; Mohan v. Manners [1918] 2 W. W. R.
191 (Man.) ; Mauch v. National Securities [1919] 2 W. W. R. 740 (AL).

Sect. 2] STATUTORY MORTGAGE. 23?

6. Eight to foreclose.

7. Eight to deal with the mortgage security.
8^ Miscellaneous rights.

9. General rights as under the ordinary law of unregistered
land.

1. Benefit of owner's covenants. In all twenty jurisdictions,
except Leeward Islands, distinct covenants for payment of prin-
cipal and interest constitute a part of every statutory mortgage,
either by being expressly inserted in the prescribed forms of mort-
gage, or b}* being impliedly contained therein in virtue of express
enactment. The Leeward Islands form, indeed, though containing
no separate covenant for payment, can hardly be interpreted other-
wise than as implying an agreement to pay the principal — " ad-
vanced to me by way of loan " — and interest, on which an action
would lie, apart from the effect of registration. The same may
perhaps be said of the prescribed forms in England and Ontario,
which would seem necessarily to imply an agreement for repay-
ment apart from registration, though in these two jurisdictions the
statutes themselves enact that on registration covenants for pay-
ment are implied.1 In the other seventeen jurisdictions covenants
for payment are inserted in the prescribed forms, and in addition
are by express enactment implied in six of them — Queensland, Vic-
toria, Western Australia, Papua, Xew Zealand, Jamaica.2 In the
case of Federated Malay States the word "covenant" is not used,
but the word " agreement " takes its place in the prescribed form.
It would seem that these covenants for payment would operate as
agreements independently of registration, though in the six juris-
dictions first mentioned — Queensland, &c. — as well as in England
and Ontario, the covenant implied by express enactment would only
arise on registration.3 The result is that the mortgagee gets, one
way or another, covenants for payment of principal and interest in
all twenty jurisdictions — unless of course an agreement to the con-
trary is made.

There is, however, a distinction between covenants that are (on
registration) implied by express enactment in the statute, and cove-
nants that are set out in the instrument of mortgage. In the eight
jurisdictions — England, Ontario, Queensland, Victoria, Western
Australia, Papua, Xew Zealand, Jamaica — in which the statutes

lEn?. 1875, s. 73: On. 1914. s. 31.

1 Q. 1861. s. 69 : V. 1915. s. 153 ; W. A. 1893. s. 113 : P. 1913. s. 75 :
X. Z. 191.". b. 103. soh. 4: J. 1888. s. 86.

JAust. Torr. Syst. 908: West v. Read (1913) 13 S. R. (N. S. W.)
575 : ante, p. 221.

238 MORTGAGES, dc. [Ch. vi.

themselves imply the covenants, " the obligation to pay rests " — at
all events when the instrument of mortgage itself contains no rele-
vant covenant — " upon the covenant or contract imposed by statute,
and is therefore an action founded upon a specialty within the
meaning of the statute of limitations." 4 Where there is an ex-
press covenant set out in the mortgage, it may be that this covenant
is to be regarded as replacing the implied covenant, and so as not
being a covenant " imposed by statute " ; in that case the implied
covenant would in effect be entirely negatived. There is judicial
opinion both for and against this view of the effect of an express
covenant on the covenant implied by statute.5

In some jurisdictions a covenant for further assurance is im-
plied in every statutory instrument. These are: New South Wales,
Queensland, South Australia, Tasmania, Papua, Xew Zealand, Fiji,
Federated Malay States (where it is called "agreement"), Trini-
dad-Tobago, Saskatchewan, Alberta, North- West Territories.6 Ap-
parently, the covenant would only be implied on registration of the
instrument, but its object would usually be effected when the in-
strument became operative by registration, and the effect of the
implied covenant is not clear.7 The only other jurisdictions that
need be mentioned in this connexion are England and Ireland.8
where the Conveyancing Acts are for some purposes incorporated
into the registration statutes, and covenants for title, &c, may
occasionally be implied if necessary.

A covenant to insure against fire is implied against the owner by
express enactment in Xew Zealand,0 and is inserted in the prescribed
form of mortgage in Xew South Wales, Victoria, Western Australia,
and Jamaica.

A covenant to repair is implied in fourteen jurisdictions: the
nine Australasian, Federated Malay ^States, Jamaica, Saskatchewan,
Alberta, Xorth-West Territories.10 Tn Victoria it has been said

'Beatty v. Bailey ( 1912 > 26 O. L. R. 145, 151. And see Fink v.
Robertson (1907) 4 C. L. R. 864. 882, though in that case the mortgage
instrument itself contained express covenants.

5 For: Australian Deposit Bank v. Lord (1S76) 2 V. L. R. L. 31, 34.
Against : Fink v. Robertson, supra.

' N. S. W. 1900, s. 75 ; Q. 1861. s. 67 : S. A. 1886. s. 261 : Tas. 1862.
s. 36; P. 1913, s. 73: N. Z. 1015. s. 104; Fi. 1876 (1900), s. 36 ; F. M. S.
1911. s. 22: Tr. 1902. s. 42: Sas. 1917, s. 64 (1) ; Al. 1906, s. 40; Can.
1906. s. 68.

7 West v. Read seems to be the only relevant case ; there the instrument
was a transfer.

8Eng. 1897, ss. 9. 16; 1903-8 Rules, r. 99; Own. & Inc. 176. 193. I.
1891, s. 140. 9N. Z. 1915, s. 103, sch. 4.

10 N. S. W. 1900, s. 77 ; Q. 1861, s. 69 ; S. A. 1886. s. 130 ; Tas.. 1862, s.
62 : V. 1915, s. 153 ; W. A. 1893, s. 113 ; P. 1913, s. 75 ; N. Z. 1915, s. 103.
sch. 4; Fi. 1876 (1906), s. 75; F. M. S. 1911. s. 57 ("agreement") ; J.
1888, s. 86; Sas. 1917, s. 104; Al. 1906, s. 69: Can. 1906. s. 108.

BBCT.2] statutory mortgage. 239

that this covenant in effect runs with the land, owing to the word-
ing of the enactment,11 and if so, the same construction must be
placed on the enactments in Western Australia and Jamaica.

In many jurisdictions a covenant by the owner to insure may
be introduced (when not already there) into the prescribed form
by employing a short form of words as directed by the statute, viz. :
Ontario, Xew South Wales, Queensland, South Australia, Tas-
mania, Victoria, Western Australia, Papua, Trinidad-Tobago, Ja-
maica.12 In Saskatchewan, Alberta, and Xorth-West Territories
covenants for title may be introduced in a similar way, but these
do not seem to be of any practical use.13 In Ontario certain cove-
nants other than for insurance may also be introduced under the
enactment already cited.

Covenants by the owner in a mortgage of leasehold land are by
express enactment implied in England and Ontario, viz. to pay the
rent and observe the covenants reserved and contained in the lease,
and indemnify the mortgagee against breach.14 In Ireland and
Trinidad-Tobago 15 such covenants are implied by the incorporation
of portions of the general law. In other jurisdictions these cove-
nants would, if required, have to be specially introduced into the
mortgage instrument.

The most important of the covenants are the covenants for pay-
ment. These constitute in reality a security collateral and in
addition to the security over the land, whilst other covenants — to
insure, repair, &c. — merely enable the mortgagee to take advantage
of their breach by realizing his security over the land, being them-
selves an actual part of that security. Hence the covenants for
payment to some extent operate independently of the creation and
extinguishment of the security over the land. As already pointed
out (ante, p. 220), the completion of the security by registration
is probably not a condition precedent to an action being brought
for the recovery of the principal and interest. Other questions
arise as to how the mortgagee's right of action is affected by the
formal discharge of the mortgage, the sale and transfer of the land
under the power of sale, and the extinguishment of the owner's

" In re Burton (1901) 27 V. L. R. 427. 442.

"On. 1914. s. 31 (2), cl. 12 in Short Forms Act: X. S. W. 1900. s.
SI : Q. 1861. s. 73 : S. A. 1886. s. 265. soli. 16 : Tas. 1862. s. 65 : V. 1915.
p. 155. sch. 14 ; W. A. 1893. s. 115. sch. 16 : P. 1913. s. 80 ; Tr. 1902. s. 79 :
J. 1888. s. 88. sch. 10. And see Aust. Torr. Syst. 944.

1JSas. 1917. s. 105. sch. T: Al. 1906. s. 70. sch. B; Can. 1906, s.
109. sch. V. And see Oan. Torr. Syst. 237.

■ Enjr. 1875. s. 24 : On. 1914. s. 32.

*L 1891. ss. 40. 53: Tr. 1902. s. 7.">.

240 MORTGAGES, dc. [Ch. vi.

rights of property in the land by the land being vested in the
mortgagee through foreclosure or some equivalent proceeding.

With respect to the effect of a formal discharge, the better opin-
ion would seem to be that, if the intention to reserve the benefit of
the covenants contained in the mortgage instrument be clearly
shewn, the extinguishment of the mortgage on the register as a
charge upon the land will not necessarily extinguish the personal
covenants; the result is that the mortgagee can recover the debt
from the owner, notwithstanding that the mortgage has been re-
moved from the register and no longer affects the land.16 In prac-
tice the prudent course is to state clearly in the instrument of dis-
charge that it is intended to release the land only and not the per-
sonal obligation.17

The transfer to a purchaser in exercise of the mortgagee's power
of sale appears to extinguish the mortgage as a charge on the land,
just as a formal discharge of the mortgage does. But in this case
also the mortgagee appears to be at liberty to recover any part of
the debt remaining unpaid, on the footing of the personal obliga-
tion continuing in existence.18 In practice it is advisable to have
the right of the mortgagee clearly stated so as to appear on the
register; in some registries arrangements are made for having this
done.19

The right to sue on the covenant for payment may sometimes be
put an end to by foreclosure operating to extinguish the debt. The
effect of the covenants, as authorizing a demand for payment and
subsequent exercise of the power of sale, is not however lessened by
the recovery of judgment for the mortgage debt.20

In Australia the debt is extinguished by foreclosure (in Vic-
toria under statute)21; in most Canadian jurisdictions the debt is
not necessarily extinguished.22 In Australia the mortgagee after

16Aust. Torr. Syst. 967; Own. & Inc. 194; Bell v. Rowe (1901) 26
V. L. R. 511, 521; Beatty V. Bailey (1912) 26 O. L. R. 145. And see
further under " Discharge of Mortgage," post, p. 270.

17 See Beatty v. Bailey, supra, where this was done.

^Aust. Torr. Syst. 961; Own. & Inc. 194; Trust and Agency Co. v.
Markwell (1874) 4 Q. S. C. R. 50; Bell v. Rowe, supra; In re Richardson
(1871) L. R. 12 Eq. 398, 13 E.q. 142: Beatty v. Bailey, supra. And see
further under "Power of Sale," post, p. 249.

19 See Br. & Sh. addenda to pp. 171, 595.

™ National Mortgage and Agency Co. v. Maslin (1915) 34 N. Z. R. 251.

JlConv. Act 1915, s. 32 (see V. 1915, s. 162. in Appendix post), Fink
v. Robertson (1907) 4 C. L. R. 864, 885; Knox v. Phillips (1918) 19
S. R. (N. S. W.) 7. And see as to British Columbia, sect. 3 post p. 277;
B. C. 1911. s. 14A.

"Mutual Life Ass. Co. v. Douglas (1918) 57 Can. S. C. R. 243, where
Fink v. Robertson was not followed. Colonial Invest. Co. v. King (1902,
5 Terr. R. 371) is overruled on this point. See "Foreclosure," post, p.
260.

Sect. 2] STATUTORY MORTGAGE. 241

foreclosure cannot prove as a secured creditor in liquidation pro-
ceedings;23 in Canada he can enforce a collateral security, as by
retaining insurance moneys, since the debt on which his right to do
so depends, is still in existence.24

The mortgagee's right of action on the covenant would seem to
be barred at the end of the period limited by limitation Acts, not-
withstanding that his right to possession of the land may in some
jurisdictions be unaffected by any lapse of time (ante, p. 85).
Only in Manitoba is it enacted that the right of action under the
covenant for payment is not kept alive beyond the ordinary statu-
tory period by the provisions of the limitation Acts being abrogated
with respect to the land itself.25 In New Zealand it appears to
have been assumed rather than decided that the right of action on
the debt is barred notwithstanding that the mortgagee's rights with
respect to the land itself and its possession are not barred by lapse
of time.26 On this view the rule as enacted in Manitoba will apply
in all jurisdictions, and the mortgagee's right of action on his cov-
enant will be exercisable only subject to the provisions of relevant
limitation Acts.

In some jurisdictions the mortgagee gets the benefit of an im-
plied covenant directly from the transferee, when the land is trans-
ferred subject to the mortgage ; in others the covenants implied on
the part of the mortgagor are so framed as to make it possible to
construe them as binding the transferee directly. In all twenty
jurisdictions except England, Ireland, and Ontario, a covenant is
by express enactment implied in the instrument transferring mort-
gaged land that the transferee will pay the moneys secured and
indemnify the former owner (the original mortgagor) ; this statu-
tory obligation imposed on the transferee is the same in principle
as the obligation "which would be enforced in equity against the
grantee of an equity of redemption " under ordinary law.27 In
England such a covenant of indemnity may be inserted in the trans-
fer and noted on the register,28 and this covenant would probably
be implied in any case in England, and also in Ireland and On-
tario. It is the actual transferee on whom the covenant for indem-
nity is imposed, not the purchaser, when the latter directs land to

**/n re Premier Perm. Build. Assoc. (1899) 25 V. L. R. 77. as over-
ruled by Fink v. Robertson, supra.

84 Mutual Life Ass. Co. v. Doughs, supra. But see now Al. 1906, s.
62B.

*M. 1913. s. 117. This section is also enacted as s. 24 (3) of the
Real Property Limitation Act (R. S. 1913. c. 116).

* Campbell v. Auckland Dist. Registrar (1910) 28 N. Z. R. at p.
820, 29 N. Z. R. 332. 338; Shirleti v. Tapper (1904) 13 N. Z. R. 849.

* Ex p. Finlay (1884) 10 V. L. R. 68, 83.

aEng. 1903-S Rules, r. 133; Own. & Inc. 177, 319.

R.T.I.. 16

242 MORTGAGES, dc. [Ch. vi.

be transferred to a nominee.20 And the transferee is not liable to
indemnify the transferor if the latter is not the actual vendor.30
In South Australia and Alberta 31 the covenant is implied on
the part of the transferee with the transferor and also (in South
Australia so long as the transferee remains the owner) with the
mortgagee directly. In these jurisdictions the transferee will, in a
properly framed action, be personally and directly liable to the
mortgagee, and even after transferring the land to another.32
But this liability only arises under the same circumstances
that would give rise to the transferor's right of indemnity;
the transferee has therefore been held not to be liable to the
mortgagee where the transfer was merely by way of security, or
where only an undivided interest in the land was transferred.33 And
it has been held that the transferee will not be liable to the mort-
gagee if he has not executed the instrument of transfer, and that
to make him so liable the transfer must either be under seal or
must shew some consideration moving from the transferee.34

In Victoria, Western Australia, and Jamaica,35 the covenant
implied on the part of the transferee is with the transferor only,
but other enactments purport to place transferees upon the some
footing as to obligations as their transferors. The weight of author-
ity is in favour of the covenant being one for indemnity only, not
rendering the transferee of the land personally and directly liable
to the mortgagee for the mortgage debt, but the question has been
expressly left open in Australia.36 In New Zealand, Manitoba, and
Saskatchewan,37 also the covenant is with the transferor, and the
wide interpretation clause in the New Zealand statute does not seem
to make the covenant for payment run with the land or render the
transferee liable directly to the mortgagee. In the remaining nine

29 Chant v. Rhodes [1917] N. Z. R. 184.

30 Peterson v. Wickson [1918] 2 W. W. R. 289 (Man.).

. 31 S. A. 1886. s. 97 : Al. 1906, s. 52 ; Can. Torr. Syst. 236.

32 Colonial Invest. Co. v. Foisie (1911) 19 West. R. 748 (Sas.) ; Trusts
d Guarantee Co. v Stephens [1919] 3 W. W. R. 410.

83 Short v. Graham (1908) 7 West. R. 787 (Al.) : Montreal Trust Co.
v. Boggs (1915) 31 West. R. 914 (Sas.) ; Dominion of Canada Invest. Co.
v. Carstens [1917] 3 W. W. R. 153 (Sas.).

"Great Western Lumber Co. v. Murrin [1917] 1 W. W. R. 945 (Al.).
There is an interesting reporter's note to this ease, questioning the sound-
ness of the views expressed in it, and suggesting that the effect of registra-
tion has been unjustifiably minimized. It must be remembered that in
South Australia (though not in Alberta) the statutory instrument becomes
on registration equivalent to a deed : S. A. 1886, s. 57. ante, p. 234.

38 V. 1915, ss. 127, 153, 269; W. A. 1893, ss. 88, 113, 228; J. 1888, ss.
67, 86, 106.

™Fink v. Robertson (1907) 4 C. L. R. 864, 882. See Aust. Torr. Syst.
B20i

37 N. Z. 1915. ss. 88, 103, 222. sch. 4; Man. 1913, s. 97; Sas. 1917.
s. 64 (2).

Sect. 2] STATUTORY MORTGAGE. 243

jurisdictions — New South Wales, Queensland, Tasmania, Papua,
Fiji, Federated Malay States, Trinidad-Tobago, Leeward Islands,
North- West Territories 38 — no covenantee is mentioned, and the
implied covenant is an ordinary one of indemnity, not saddling the
covenantor with any personal obligation to the mortgagee.39

Where the statutes do not impose on the transferee a direct lia-
bility to the mortgagee, the latter may take an assignment from the
owner-transferor of the benefit of his covenant of indemnity with
the transferee, and an action may then be brought directly by the
mortgagee against the transferee.40

The usual effect of the statutory implied covenant for indemnity
is that when the land is transferred to the mortgagee the mortgage
is extinguished, the interest under the mortgage being merged in
the ownership of the land.41 But this result will not follow if it
plainly appear that the intention of the parties was to keep the mort-
gage on foot as a charge on the land,42 and for this purpose the
transfer is often made in favour of a nominee of the mortgagee in-
stead of to the mortgagee himself.43 In Queensland and Papua 44
it is specially enacted that the mortgagee is " entitled " to have the
mortgage removed from the register, and of course this is a right
that as owner of the land he could waive.45

2. Right to distrain. In many jurisdictions one of the statutory
rights of a mortgagee is a right to enter and distrain on the goods
of the occupier, independently of the right to enter into possession.
No such express right is conferred in England, Ireland, Ontario,
Trinidad-Tobago, Leeward Islands, Saskatchewan, Alberta, or
North-West Territories. In these jurisdictions any power of dis-
tress would either arise by implication under the right to enter into
possession as mortgagee, or would have to be conferred by means

18 N. S. W. 1900. s. 76; Q. 1861, s. 68; Tas. 1862, s. 46; P. 1913, s. 74;
Fi. 1*76 (1906). s. 45; F. M. S. 1911. s. 32: Tr. 1902. s. 59: L. Is. 1886
(1914), s. 24; Can. 1906. s. 69.

"Aust. Torr. Syst. 920: Can. Torr. Syst. 238.

-Morice v. Krrninaham (1908) 9 West. R. 307 (Man.) ; Can. Torr.
Syst. 238.

■ In re Victorian Farmers' Co. (1897) 22 V. L. R. 629; Fink v. Rob-
ertson (1907) 4 C. L. R. 864, 877; Re Riddell (1907^ 7 West. R. 301
(Sas.) : Reeves v. Konschur (1909) 10 West. R. 680.

"Capital and Counties Bank v. Rhodes [1903] 1 Ch. 631, 652; Reeves
v. Konsehur, supra; In re Major (1897) 5 B. C. R. 244.

** Illustrations are: In re Victorian Farmers' Co.. supra: Daly v. Union
Trustee Co. (1898) 24 V. L. R. 460.

44 Q. 1877, s. 19 ; P. 1913, s. 39.

**See Reeves v. Konsehur (1909) 10 West. R. 680, 692. quoting Aust.
Torr. Syst. 829 — u a plaintiff is entitled . . . conclusive against tbe
defendant."

244 MORTGAGES, dc. [Ch. vi.

of special clauses in the mortgage instrument,40 and under any such
special clause a mortgagee can only distrain as landlord, being
bound by landlord and tenant law; he cannot therefore get judg-
ment pending sale of the distress.47

In New South Wales, Fiji, and Federated Malay States,48 the
right given is to distrain " for the rent then due/' the owner's pow-
ers as landlord being ipso facto vested in the mortgagee upon the
latter giving notice to the occupier. This power of distress for
" rent " seems clearly to arise only where there are tenants of the
owner in occupation, and not to authorize the mortgagee to distrain
when the owner himself is in actual occupation. The power is not
one to distrain for arrears of rent as such. The New South Wales
enactment (s. 60) makes the power of distress exercisable by the
mortgagee as if the mortgage had been effected "by a conveyance
of the legal estate."49 This does not appear to differentiate the
enactment from those of Fiji and Federated Malay States for any
practical purpose, and in all those jurisdictions the intention seems
to be to place the mortgagee in the same position with regard to
the tenants of the owner as he would be under the general law and
in the case of unregistered land.50

In Queensland, South Australia, Tasmania, Papua, and New
Zealand,51 the right given is to distrain for arrears of principal or
interest to an amount not exceeding any rent then due from the
occupier to the owner. This power is one to distrain for " interest "
as such, and not merely for rent. It has been held in South Aus-
tralia and New Zealand 52 that " occupier " here does not include the
owner himself when in occupation of the land, so that the mortgagee
cannot distrain under the statutory power when the owner himself is
in actual occupation. This would be to place the same construction
upon these enactments as upon those of New South Wales, &c.
Seeing that the power is one to distrain for " interest," differing in
this respect from the power in New South Wales, &c, it seems per-

46 Can. Torr. Syst. 296, 297, 302-304. And see ante, p. 214.
"Fawell v. Andrew [1917] 2 W. W. R. 400 (Sas.).

48 N. S. W. 1900, ss. 60, 63; Fi. 1876 (1906), ss. 60, 61; F. M. S. 1911,
ss. 44, 45.

49 The effect of this clause was considered in Finn v. London Bank of
Australia (1898) 19 N. S. W. 364.

60 An a fortiori illustration is afforded by a case in Saskatchewan, where
no statutory power of distress is given to mortgagees : Vousden v. Hopper
(1911) 16 West. R. 294, 298.

81 Q. 1861, ss. 60, 61; S. A. 1886, ss. 137, 138; Tas. 1862, ss. 56, 57;
P. 1913, ss. 52, 53 ; N. Z. 1915, s. 106.

62 Hart v. Htratton (1873) 7 S. A. R. 84; In re Ross and McNeil
(1886) 5 N. Z. S. C. 322.

Sect. 2] STATUTORY MORTGAGE. 245

missible to make " occupiers " in these enactments include the owner
when in occupation, notwithstanding the reference to "rent " in
one part of the enactments.53 The right to distrain on the owner's
chattels may be ousted when these chattels are the subject of an
independent security in favour of another mortgagee.54 The statu-
tory power is not restricted to first mortgagees, but a second or third
mortgagee could only exercise it with the assent, express or im-
plied, of earlier incumbrancers.

In the remaining four jurisdictions — Victoria, Manitoba, West-
ern Australia, Jamaica 55 — the right given is to distrain for arrears
of interest to an amount not exceeding rent due, and the " occu-
pier " whose goods may be distrained has been held to include the
owner himself when in occupation.56 In Manitoba the right of the
mortgagee to distrain for arrears of interest is, by general legisla-
tion, restricted to the goods of the owner himself.57 In all four
jurisdictions a distinction is made between first and other mort-
gagees. In Victoria and Manitoba the statutory power is conferred
on " first " mortgagees only, and in Western Australia and Ja-
maica it is to be exercised " according to their priorities " if there
be more than one mortgage. These enactments also resemble that
of Xew South Wales in purporting to give the mortgagee the rights
of a landlord against the tenant, and to place him in the same
position as that occupied by a mortgagee under a mortgage by con-
veyance. But this statutory power of distraining for " interest " —
as distinguished from " rent " — would not of itself, any more than
a similar express power inserted in a mortgage whether of regis-
tered or unregistered land,58 create the relationship of landlord
and tenant; hence the goods of strangers could not be seized, nor
could the occupier claim in other respects the rights of a tenant

"This is the interpretation placed upon the Victorian enactments:
McLeish v. Forrest (1895) 21 V. L. R. 384. In New Zealand the enact-
ments now repealed certainly indicated an intention to exclude the owner
from " occupiers " : Aust. Torr. Syst. 957.

54 Queensland Mortgage Co. V. British and Australasian Trust Co.
(1887) 3 Q. L. J. 4.

"V. 1915, ss. 151, 152, 156; If. 1913, ss. 114-116; W. A. 1893, ss.

111. 112, 116 ; J. 1888, ss. 84, 85, 89. ■ McLeish v. Forrest, supra.

"Distress Act (R. S. 1913, c. 55), s. 2. See Linstead v. Hamilton
Provident Soc. (1896) 11 Man. R. 199: Miller v. Imperial Loan Co., ib.
247. There is similar general legislation in Ontario, Saskatchewan, Al-
berta, and North-West Territories : see Trust and Loan Co. v. Lawrason
(1882) 10 Can. S. C. R. 679; Edmonds v. Hamilton Provident Soc. (1890)
18 O. A. R. 347; Vousden v. Hopper (1911) 16 West. R. 294 (Sas.) ;
Can. Torr. Syst. 303.

MSee Vousden v. Hopper, supra, at p. 298; Doe v. Goodier (1847) 10
Q. B. 957.

246 MORTGAGES, <kc. [Cii. vi.

against the mortgagee, if this statutory power only had to be relied
on.

The power of distress may also be conferred by the relationship
of landlord and tenant being, expressly or by the statutes, created
between the parties. This is referred to ante, p. 214, and also
post under the head of " general rights."

3. Power to enter and take possession. In all twenty jurisdic-
tions the statutes make some provision, expressly or by implication,
enabling the mortgagee to obtain possession of the land, notwith-
standing that his security is by way of charge and not conveyance.
In Ireland, Trinidad-Tobago, and North-West Territories,59 this
provision is by implication only, the general law being incorporated
into the registration statutes of Ireland and Trinidad-Tobago,
while in North-West Territories the aid of the court must be sought
in every case.00

In England and Ontario 61 the mortgagee is given the right to
enter on the land at any time, " or into receipt of the rents and
profits," subject to any express agreement, to any prior incum-
brances, " and to the liability attached to a mortgagee in posses-
sion." Nothing is said about any analogy between the position of
the mortgagee so taking possession and that of a mortgagee by
conveyance under the general law. In England the Conveyancing
Acts are to some extent incorporated in the registration statutes.62
The principal difficulty in both England and Ontario statutes relates
to the position of the mortgagee with respect to the tenants of the
owner. The mortgagee appears to have a right to bring an action
for recovery of the land,03 and in some cases it may be advisable as
a practical precaution to take an assignment from the owner of the
benefit of the lessee's covenants, when the mortgaged land is in the
possession of a lessee.04 The whole question of the rights and lia-
bilities of lessees in relation to the owner and mortgagee of the
reversion is complicated by the scheme of the English and Ontario
statutes, under which leases are not susceptible of direct registra-

"I. 1891, s. 40; Tr. 1902, ss. 75, 132; Can. 1906, ss. 99, 142. Sect.
132 of Tr. 1902 is only cited to call attention to the marked omission of all
mention of mortgagees, as contrasted with such an enactment as N. S. W.
1900, s. 124. on which it is modelled.

80 Can. Ton*. Syst. 295 et seq., though the Alberta statutes are now
amended and express powers conferred on the mortgagees.

61Eng. 1875, s. 25; On. 1914, s. 33: Own. & Inc. 195-198.

02Eng. 1897, ss. 9, 16.

°3Vousden v. Hopper (1911) 16 West. R. 294, 298 (Sas.) ; Own. &
Inc. 196.

"Own. & Inc. 196. 232-237.

Sect. 2] STATUTORY MORTGAGE. 247

tion.63 Since leases either require no protection on the register,
or are only protected by a registered " notice," they are largely to
be regarded as unregistered dispositions, and must be treated ac-
cordingly in conveyancing transactions.

Tn Fiji and Federated Malay States the mortgagee may only
enter into possession of the land " by receiving the rents and pro-
fits thereof," and in Leeward Islands the enactments are to the
same effect.*8 Apparently, in order to recover possession of the
land itself, the mortgagee would have to etercise the power of sale.

In Saskatchewan and Alberta"7 there is express power for the
mortgagee " to enter into possession of the lands and receive " the
rents and profits (in Saskatchewan only if the mortgage contains
a covenant authorizing this), whilst* reference is made to an action
to recover the land itself "as against a mortgagor in default"; it
would seem that occupiers claiming under interests created subse-
quently to the mortgage could be ejected as well as the mortgagor
himself.68 In Manitoba the power is to enter into possession "by
receiving the rents and profits," and also to bring an action to
recover the " land " as though the mortgage had been made " by
assurance of the legal estate," with a right in the owner of quiet
enjoyment until default.6" In Saskatchewan the relationship of
landlord and tenant may be created between mortgagee and mort-
gagor " for all purposes and as against all persons." 70

The provisions in the remaining nine jurisdictions — the Aus-
tralasian (except Fiji) together with Jamaica71 — resemble those
of Manitoba, but these nine differ from others in making special
provision for mortgages of leaseholds. The .powers are to enter
into possession " by receiving the rents and profits " (in South
Australia "and receive," &c.) and to bring an action for recovery
of the land. In Tasmania a special procedure for obtaining pos-
session, in lieu of the ordinary action, is laid down (ss. 116-118).
In Victoria, Western Australia, and New Zealand, the remedies of

wEng. 1875. ss. 50, 51; 1903-8 Rules, rr. 201-206; Own. & Inc. 125-128,
234. On. 1914. s. 70.

wFi. 1876 (1906). s. 60: F. M. S. 1911. s. 44; L. Is. 1886 (1914), ss.
72-74, S3.

•'Sas. 1917, ss. 108 (1). 159; Al. 1906. ss. 62A (1), 104.

48 Vousden v. Hopper, supra.

69 Iff. 1913. ss. 84, 114. 116, 118. Sects. 114 and 118 are not quite con-
sistent with each other. " Sas. 1917, s. 116.

nN. S. W. 1900. ss. 60, 63, 64. 124: Q. 1861. ss. 60, 62, 123; S. A.
1886, ss. 137. 139. 192: Tas. 1862. ss. 56, 58. 116-118, 124; V. 1915, ss.
151, 154. 156. 244: YV. A. 1893. ss. 111. 114. 116. 199; P. 1913. ss. 52, 54.
144; N. Z. 1915. ss. 59, 105. 118-120; J. 1888, ss. 84, 87, 89, 135. And
see Aust. Torr. Svst. 953-956.

248 MORTGAGES, &c. [Ch. vi.

landlords against tenants for recovery of possession are expressly-
conferred on mortgagees in addition to the ordinary remedy by
action. In New South Wales the powers of entry and of recovery
by action are to be exercised as though the mortgage had been made
by u conveyance of the legal estate," and in Victoria, Western Aus-
tralia, and Jamaica, the right of action is to be exercised as though
the mortgage had been made by " assurance of the legal estate."
The mortgagee of a leasehold taking possession in these nine juris-
dictions is liable to the lessor under the covenants and conditions
of the lease — to the extent of the rents and profits received; this
latter limitation does not occur in the Queensland and Papua enact-
ments, and has been held not to apply Avhere the land is unoccu-
pied and the mortgagee takes actual possession.72 In Tasmania
(s. 117) and New Zealand (s. 119) the right of a mortgagee of a
lease is expressly saved, when the lessor or his mortgagee is taking
proceedings for possession, on payment of arrears of rent with
costs and damages. This enactment only applies when the lessor
can be reinstated to the position in which he was before breach of
covenant, but the mortgagee of the lease may be entitled to relief
although the lessee himself may not be so entitled;7? general legis-
lation to some extent covers the same ground in other jurisdictions.
Where, as in these nine jurisdictions — New South Wales, &c. —
and Manitoba, express power is given for a mortgagee to recover
possession of the land by action, the right of action is not only
against the owner himself as mortgagor in default, but has been
said to extend to all persons in possession.74 This must probably
be taken with a qualification as to the rights of tenants and occu-
piers who hold under' rights created prior to the mortgage.75 When
the tenancies have been created after the mortgage, the mortgagee
may recognize and adopt them, and he will then be bound by
them ;76 he may make the tenants his own tenants by mere notice,
though this could not always be done in the case of unregistered
land.77

72 N. S. W. 1900, s. 64 ; Q. 1861, s. 62 ; S. A. 1886, s. 139 ; Tas. 1862,
ss. 58, 117 ; V. 1915, ss. 154, 156 ; W. A. 1893, ss. 114, 116 ; P. 1913. s. 54 ;
N. Z. 1915, ss. 119, 120; J. 1888, ss. 87, 89. National Mortgage Co. v.
Kaiapoi (Mayor) (1889) 7 N. Z. R. 231; Seabrook v. McMullan (1908)
10 W. A. R. 47 ; Aust. Torr. Syst. 955.

"Rakera v. Downs [1916] N. Z. R. 669.

"Oelkcrs v. Merry (1872) 2 Q. S. C. R. 193.

"See Vousden v. Hopper (1911) 16 West. R. 294. 298 (Sas.) ; Aust.
Torr. Syst. 955. n Thomson v. Finlay (1886) 5 N. Z. S. C. 293.

"Bank of New South Wales v. Palmer (1881) 2 N. S. W. 125 (the
enactments there referred to are now N. S. W. 1900, ss. 60, 63, and these
sections are to be read together) ; Equity Trustees Co. v. Ayrey (1900)
26 V. L. R. 625.

Sect. 2] STATUTORY MORTGAGE. 249

4. Power to lease. Only in four jurisdictions dd the statutes
expressly confer leasing powers on a mortgagee — South Australia,
Manitoba, Saskatchewan, Alberta.78 In Ireland 7D the Conveyanc-
ing Acts are incorporated by reference, and the powers of leasing in
those Acts therefore apply to mortgages of registered land. In Eng-
land also the leasing powers of the Conveyancing Acts probably
apply to mortgages of registered land.80 In other jurisdictions the
power must either be expressly conferred in the instrument (as to
which see ante, p. 219), or reliance must be placed on the implied
authority which, by analogy to the general law concerning unregis-
tered land, a mortgagee in possession has to make leases of the
mortgaged land. In Leeward Islands, apparently, it is not in-
tended that a mortgagee shall have power to lease.81

In South Australia the mortgagee may, on default in payment
of principal or interest, lease from time to time for not exceeding
a year. In Manitoba, Saskatchewan, and Alberta, the power is, to
" make any lease ... as he may see fit," but the power can only be
exercised after the statutory notice has been given and filed or
registered, and this notice can only be given after default has con-
tinued for at least one calendar month.

Only in Xew South Wales does the statute in so many words
give the mortgagee the right to enter into possession as though the
mortgage had been made by conveyance instead of charge; the
effect of this is to confer leasing powers on the mortgagee.82 In
Victoria wide general powers are conferred on a "first" mortga-
gee, and in Western Australia and Jamaica on " every " mort-
gagee, as though they held under mortgages by conveyance,83 and
a power of leasing might perhaps be included in these powers. The
effect of this wide general power is considered later on.

5. Power of sale. The Xorth-West Territories is the only one
of the twenty jurisdictions in which no provision is made for a sale
by the mortgagee otherwise than by means of an application to the
court.84 In the other nineteen powers of sale are expressly or im-
pliedly conferred on mortgagees, though in some cases the sale has
to be carried out by the court or under the direction of the
registrar.

18 S. A. 1886, s. 137 ; M. 1913, s. 118 ; Sas. 1917, s. 108 ; Al. 1906, s.
62A (1). »L 1891, s. 40.

"Own. & Inc. 235. »L. Is. 1886 (1914), s. 87.

"N. S. W. 1900, s. 60; Finn v. London Bank of Australia (1898) 19
N. S. W. 364 (s. 60 being a re-enactment of s. 58 there referred to).

" V. 1915, s. 156 ; W. A. 1893, s. 116 : J. 1888, s. 89.

"Can. 1906. s. 99.

250 MORTGAGES, dc. [Ch. vi.

In Ireland and Trinidad-Tobago Hr> express power of sale is not
conferred, but the powers of mortgagees are those which mortgagees
of unregistered land have under the general law. In other juris-
dictions powers of sale are expressly given, though the methods of
conferring them are not uniform.

In England and Ontario 8C the registration statutes enact that
a power of sale may be inserted in the instrument of mortgage, and
is then to be entered on the register when the mortgage is regis-
tered ; if the instrument of mortgage contains no power of sale, sale
can be " enforced " by the ordinary proceedings in court as though
" the land had been transferred to him by way of mortgage subject
to a proviso for redemption " ; if a power of sale has been inserted
in the mortgage, the mortgagee can * sell and transfer " the land
as though " he were the registered " owner of the land. The form
of the power and the manner of its exercise are left to be agreed
upon by the parties. In England the effect of the wide enactment
conferring a power of sale is modified by the incorporation of pro-
visions of the Conveyancing Acts, which confer powers of sale, &c,
on mortgagees without any mention of these being necessary in the
mortgage itself. In Ontario it is contemplated that the terms of
the power shall be set out in the mortgage itself, but a short form
of power of sale may be used in reliance on the Short Forms of Mort-
gage Act, and this appears to have the effect of making applicable
the provisions of the Mortgages Act. In other jurisdictions the
mortgagee has a power of sale without express mention of the
power in the mortgage itself being necessary.

The seven Australian jurisdictions and Jamaica 87 may be
taken together. The scheme of these statutes is that, on default
being made by the owner and continuing for the statutory period
of a month, the mortgagee may give the owner notice, and that on
default continuing for the further period of a month the power to
sell the land at once arises; the mortgagee is authorized to execute
a transfer of the land, which on registration vests the owner's inter-
est in the purchaser as though transferred to him by the owner,
free from any interests or incumbrances created subsequently to

85 1. 1891, s. 40, thus incorporating ss. 19-24 of the Conveyancing Act
1881; Tr. 1902, ss. 75, ,77, similarly incorporating ss. 21-26 of the Con-
veyancing Ordinance (1902 No. 72), a transcript of the English ss. 19-24.

86 Eng. 1875, ss. 22, 26, 27 ; 1897, s. 9 : 1903-8 Rules, r. 159 ; Own. &
Inc. 200; Br. & Sh. 168-174. On. 1914, ss. 30, 31 (2), 34, 35; Short
Forms of Mortgage Act (R. S. 1914, c. 117) ; Mortgages Act (R. S.
1914, c. 112), ss. 19-27.

87 N. S. W. 1900, ss. 57-59 ; Q. 1861, ss. 57-59, and 1877. s. 20 ; S. A.
1886, ss. 132-136 : Tas. 1862, ss. 53-55 ; V. 1915. ss. 146-150 ; W. A. 1893, ss.
106-110; P. 1913. ss. 48-51; J. 1888. ss. 80-83. Aust. Torr. Syst. 949-953.

Sect. 2] STATUTORY MORTGAGE. 251

the mortgage. The statutory periods mentioned may be abridged
or extended. Provision is also made for the purchaser's protection
in paying the purchase money to the mortgagee, and for the dis-
posal of the money in the hands of the mortgagee. In the absence
of special clauses in the mortgage limiting different periods of
default, or where the owner's right to notice has not been effectually
waived (as to which see ante, p. 220), the efficacy of the sale de-
pends on the strict observance of the statutory requirements.

The Xew Zealand 8S statute differs from the Australian statutes
in making clauses actually conferring powers of sale an implied
part of every mortgage, while other substantive enactments pro-
vide for the protection and title of the purchaser. But the prac-
tical result is apparently the same as in the Australian jurisdic-
tions. Tt is also expressly provided that the power of sale is not to
be exercised when there is a sub-mortgage without the consent of
the sub-mortgagee.89

The scheme in Manitoba, Saskatchewan, and Alberta,"" resem-
bles that of the Australian jurisdictions, but with some important
differences. The statu ton' period to elapse after default and be-
fore notice cannot be abridged, though it may be extended, and the
further period to elapse before the power to sell is complete cannot
be altered at all. The mortgagee's notice, besides being served on
the owner and other persons having registered interests, must be
filed or registered. In Manitoba, leave to sell must first be applied
for and granted by the registrar, and if sale without notice is
expressly stipulated for in the mortgage, the registrar may direct a
sale without any notice being served; certain mortgages effected
before the year 1914 are specially provided for. The sale itself must,
in all three jurisdictions, be made on terms directed by the registrar.
In Saskatchewan and Alberta the mortgagee has the alternative right
of taking ordinary proceedings in court to " enforce " his rights
under the mortgage, and in particular for sale of the land. It is
not clear, however, under what circumstances sale by order of
court would be more beneficial than a sale under the statutory
power.

In the three remaining jurisdictions — Fiji, Federated Malay
States, Leeward Islands 91 — a mortgagee is allowed, as part of his
security, to have the land sold, but the sale is carried out by the

"N. Z. 1915, ss. 103. 107-109, sch. 4, el. 7. 8.

"N. Z. 1915, s. 116 (4).

"M. 1913, ss. 118-121. 121A: Sas. 1917. ss. 109-111: Al. 1906. ss. 62,
62A (2-9). See Can. Torr. Syst. 317-346.

81 Fi. 1876 (1906). ss. 63-71: F. If. S. 1911. ss. 46-53; L. Is. 1886
(1914), ss. 71-94.

252 MORTGAGES, dc. [Ch. m.

court after preliminary steps as to notice on default, &c, have been
taken by the mortgagee, just as in Australian jurisdictions. In
Fiji and Federated Malay States the two periods of default are,
under the statutes, one month each, but any other periods may be
limited; in Leeward Islands the periods are sixty and thirty days,
and no provision is made for any alteration in these. The pur-
chaser at the sale is subsequently registered as owner. In Fiji
(s. 71) and Federated Malay States (s. 53) the title of the pur-
chaser is specially warranted, and made as good " as if he had been
the original grantee " from the State.

The statutory power of sale in the nineteen jurisdictions — no
such power being conferred in North-West Territories — thus ap-
pears to be, notwithstanding differences in detail, essentially the
same ; it is a power in the mortgagee to vest, directly or indirectly,
in a purchaser that ownership of the land which is still in the owner
himself and has not passed to the mortgagee {ante, p. 207). The
nearest analogy in the general law of unregistered land is the vest-
ing by order of court, where an equitable mortgagee takes proceed-
ings for sale; this procedure is actually necessary under the statu-
tory mortgage in North- West Territories, and may be adopted in
SaskatcheAvan and Alberta.

As in other parts of the law relating to registered land, the
case law as laid down in some jurisdictions occasionally corresponds
with actual statutory enactment in others, or an enactment may
merely express what would be implied without express enactment.
Thus, where default is made in payment of interest on an instal-
ment of principal, so that the power of sale becomes exercisable and
the land is sold under it, the mortgagee may retain out of the pur-
chase money the whole of the principal, although by the terms of
the mortgage the principal is not yet due.92 It does not follow that
the mortgagee can formally call up the principal on default in
payment of interest, and prompt payment of the interest due would
prevent the power of sale arising.93 In Manitoba and Saskatche-
wan 94 it is expressly enacted that, where by reason of an owner's
default the whole principal becomes payable, the arrears due may
be paid at any time before sale or foreclosure. 'Case and statute
law correspond also with respect to the interest taken by the pur-
chaser ; the purchaser from the mortgagee takes not only the actual

**llervey v. Inglis (1868) 5 W. W. & a'B. 125; Ewart v. General
Finance Soc. (1889) 15 V. L. R. 625; Q. 1877, s. 20; P. 1913, s. 49.

"Burne v. Stuart (1884) 3 N. Z. S. C. 247; Ewart v. General Finance
Soc, supra,

MM. 1913, s. 126; Sas. 1917, s. 115; Wasson v. Marker (1912) -22
West. R. 609 (Sas.).

Sect. 2] STATUTORY MORTGAGE. 253

estate of the owner, but any estate or interests which the owner had
power to dispose of.95

The requirements of the statutes — either express or as incor-
porated from general statutes — with respect to the notice to be
given by the mortgagee upon default being made by the owner,
must be strictly complied with.96 In particular the notice must
state what the default is, and not merely in general terms require
the conditions of the mortgage to be observed;97 it is however suffi-
cient to identify the debt, if the notice be a demand for payment,
notwithstanding a mistake in its description.98 As already stated
(ante, p. 221), the notice is not invalid merely for being given
prior to the registration of the mortgage. The statutes differ
slightly as to the form of notice, and in nine jurisdictions — New
South Wales, South Australia, Tasmania, Xew Zealand, Fiji, Fede-
rated Malay States, Manitoba, Saskatchewan, Alberta — the notice,
besides requiring payment or observance of covenants, must also
state the intention to exercise the power of sale. In Victoria and
Western Australia it is specially enacted that, where the money
secured is made payable on demand, the demand is to be equiva-
lent to the ordinary statutory notice, and one such demand or no-
tice is sufficient.99 In other jurisdictions, as formerly in Victoria
and Western Australia under repealed statutes, two notices or de-
mands would seem to be necessary when the money is by the mort-
gage instrument made payable on demand — one creating the de-
fault and the other answering to the statutory notice after default.1

The effect of the exercise of the power of sale upon the cove-
nants for payment is referred to ante, p. 240. When the covenants
for payment cannot.be availed of by reason of the statutory period
under limitation Acts having run out as against the mortgagee, the

"V. 1915. s. 150; W. A. 1893. s. 110; J. 1888, s. 83; Ex p. Newcastle
Build. Co. (1905) 5 S. R. (N. S. W.) 237, a case of foreclosure, but
applicable in principle to sale.

"National Bank of Australasia v. United Hand-in-Hand Co. (1879)
4 A. C. 391. 407; In re Burton (1901) 27 V. L. R. 437; Smith v.
National Trust Co. (1912) 45 Can. S. C. R. 618; West v. Read (1913) 13
S. R. (N. S. W.) 575.

"McDonald v. Rowe (1872) 3 V. R. 143; Stacey v. Hansen (1894) 20
V. L. R. 561 ; Aust. Torr. Syst. 950.

"Barm v. Queensland National Bank (1906) 3 C. L. R. 925, 935.

WV. 1915. s. 147; W. A. 1893, s. 107.

1 National Bank of Australasia v. United Hand-in-Hand Co. (1879)
4 A. C. 391. 406. under the Victorian Act of 1866 before amendment, ss.
84 and 85 beins now reproduced in V. 1915. ss. 146. 148. An illustration
of a demand mortgage is Mathieson v. Mercantile Finance Co. (1891) 17
V. L. R. 271.

254 MORTGAGES, dc. [Ch. vi.

power of sale may still, at all events Avhere the mortgagee has taken
and kept possession, be exercised.2

The statutes are precise in providing that the owner's property
in the land is not vested in the purchaser Until the latter is placed
on the register.3 Until this registration does take place the pur-
chaser appears to be as amenable to notice of defects in the title of
his transferor the mortgagee as he would be if the. transfer were
being made by the owner himself.4 But the mortgagor is bound
by the execution of a valid contract between the mortgagee and the
purchaser, and cannot come in and redeem after the contract of
sale on the mere ground that the purchaser is not yet registered as
owner.5 Any right to relief which the mortgagor would otherwise
have against the effect of an acceleration clause, as in Manitoba and
Saskatchewan,0 would seem to be abrogated when once a valid
contract for sale has been entered into by the mortgagee. The pre-
cise interest in the land that does vest in the purchaser is of course
the owner's interest as it was at the time of the registration of the
mortgage ; this is expressly stated in most of the statutes, but must
necessarily be implied.7 The purchaser will, when registered, take
free of any unregistered transactions in the same way and to the
same extent as if he were a transferee direct from the registered
owner.8

Eegistration of the transfer to the purchaser will not usually
be permitted until satisfactory evidence has been produced at the
registry as to the occurrence of the owner's default, and other cir-
cumstances supporting the validity of the sale by the mortgagee;
only in Xew South Wales is it expressly enacted that proof shall
be furnished that the " default has been made and continues " —
which means " continues up to the date of the contract of sale." !)
But it has been held that, apart from this enactment, it is proper

2 In re Australian Deposit Bank [1907] V. L. R. 348.

a National Bank of Australasia V. United Hand-in-Hand Co., supra;
West v. Read (1913) 13 S. R. (N. S. W.) 575; Finkelstein V. Locke
(1907) 6 West. R. 173 (Man.). In all these cases the sale itself was
invalid for irregularities.

4Aust. Torr. Syst. 952; ante, p. 126. "Notice;" Barns v. Queensland
National Bank (1906) 3 C. L. R. 925, 945.

s8altman v. McColl (1909) 12 West. R. 146, 14 ib. 91; Can. Torr.
Syst. 333, 334.

°M. 1913, s. 126; Sas. 1917, s. 135.

7 See Eng. 1875, s. 27; In re Richardson (1871) L. R. 12 Eq. 398, 13
Eq. 142. On. 1914, s. 35; Beatty v. Bailey (1912) 26 O. L. R. 145.

"An illustration is Potter v. Sampson (1913) 2 Tr. & Tob. 274,
where the purchaser took in priority to an unregistered agreement dated
subsequently to the registration of the mortgage.

•N. S. W. 1900, s. 59; Ex p. Hassall (1871) 10 S. C. (N. S. W.) 292.

BBCT.2] STATUTORY MORTGAGE. 255

for the registry to require such proof, and this appears to be the
ordinary practice.10 An exception occurs in Victoria and Trinidad-
Tobago, where it is expressly enacted that a transfer made in pro-
fessed exercise of the mortgagee's power of sale may, in the discre-
tion of the registrar, be registered without proof that the power
has been duly exercised: and in Xew Zealand the transfer on a
judicial sale is " conclusive proof " that the sale has been duly ex-
ercised.11 The same rule as to requiring evidence of default, &c,
is illustrated in those jurisdictions where the sale has to be carried
out in accordance with directions from the registry : before direct-
ing a sale at all, the registrar may require to be satisfied that the
mortgagee is entitled to sell.12

All the enactments relating to powers of sale (whether con-
tained in the registration statutes, or incorporated from other
statutes) include provisions, substantially to the same effect, as to
the disposal of the purchase money received by the mortgagee.13
The provision for this is least explicit in the case of the Leeward
Islands, whilst in England, Ireland, Queensland, Tasmania, Pa-
pua, and Trinidad-Tobago, nothing is said as to payment of any
surplus to subsequent incumbrancers ; this omission however seems
unimportant, and in any jurisdiction a subsequent incumbrancer
would be entitled to stand in the shoes of the owner-mortgagor as
in the case of mortgages over unregistered land. The rights of
other creditors among themselves to take the surplus may also be
governed by general legislation.14 General principles of the law
of mortgage will also be applied, notwithstanding the silence of the
registration statutes, to secure to the mortgagee the repayment of
necessary outlay in preserving his security.16

In the event of the sale being made improperly, the owner (if
the purchaser be already registered without notice of the irregular-
ity) has the same remedy by way of action for damages against the
mortgagee as under the general law.19

x* Ex p. Hassall, supra, at p. 299; National Bank of Australasia v.
Tnited Ifand-in-Hand Co. (1879) 4 A. C. 391, 407 (referring both to the
Xew South Wales and (repealed) Victorian statutes) : Guest's Transfer of
Land Act. 106: Aust. Torr. Syst. 952.

11 V. 1915, s. 148 ; Tr. 1902. s. 77 : N. Z. 1915. s. 113.

"Re Sun Life Ass. Co. and Widmer (1916) 33 West. R. 521 (Al.).

" Aust. Torr. Syst. 950. 953 ; Can. Torr. Syst. 337-341.

"Thompson v. Berglund (1910) 16 West. R. 154 (Sas.) ; Can. Torr.
Syst. 339.

"National Bank v. Barclay (1899) 17 X. Z. R. 819; Aust. Torr.
Syst. 953.

"Campbell v. Bank of New South Wales (1879) 2 X. S. W. 271.
381 (P. C.) ; Gunn v. Land Mortgage Bank (1890) 12 Aust. L. T. 49;
Bams V. Queensland National Bank (1906) 3 C. L. R. 925. 945 : Pendlebury
v. Colonial Mufual Ass. Co. (1912) 13 C. L. R. 676.

256 MORTGAGES, dc. [Ch. vi.

6. Bight to foreclose. In Ireland foreclosure is in practice but
seldom resorted to. This may account for the silence of the regis-
tration statute, which does not mention foreclosure; moreover,
though the rights and remedies of mortgagees under the Conveyanc-
ing Acts are by I. 1891, s. 40, made applicable to registered land,
s. 25 of the Conveyancing Act 1881 — the only section of that Act
which mentions foreclosure — does not apply to Ireland. Presum-
ably a foreclosure order absolute made by a competent court would
be regarded as sufficient authority for rectification of the register.17
There are four other jurisdictions in which the registration statutes
do not mention foreclosure — New Zealand, Fiji, Federated Malay
States, Leeward Islands; but in each of these provision is made
for judicial sale of the land, and the mortgagee is expressly author-
ized to bid at the sale and become the registered owner of the land
free from any right of redemption by the former owner.18

In six of the remaining jurisdictions foreclosure by means of
ordinary judicial proceedings is provided for, in seven a special
statutory procedure is introduced, and in two foreclosure may be
had either by ordinary proceedings or by the statutory procedure.
In Victoria, Western Australia,, and Jamaica,19 the alternative of
ordinary or statutory procedure applies to mortgages existing at
the time of initial registration, and to these only.

The six jurisdictions in which foreclosure by action or other
proceeding in the courts only is provided for are : England, On-
tario, Queensland, Papua, Trinidad-Tobago, North-West Terri-
tories.20 In England and Ontario the mortgagee may " enforce "
foreclosure as though ."the land had been transferred to him by
way of mortgage subject to a proviso for redemption," and on pre-
sentation of the order for foreclosure absolute the mortgagee is reg-
istered as owner of the land.21 In Queensland and Papua the
mortgagee is merely entitled by proceedings in the ordinary courts
" to foreclose the right of the mortgagor " to redeem, and the
enactment in North- West Territories is to the same effect. In

"I. 1891, s. 39, seems to be a relevant enactment, if definite statutory
authority be required.

1SN. Z. 1915. ss. 110-115; Fi. 1876 (1906), ss. 63-71; F. M. S. 1911.
ss. 46-53; L. Is. 1886 (1914), ss. 71-94. Foreclosure is no longer allowed
in New Zealand, even in the case of unregistered land : Property Law
Act 1908 (No. 152), s. 69. As to Federated Malay States, see Innes,
33, 36.

" V. 1915, ss. 168-174 ; W. A. 1893, s. 124 ; J. 1888, s. 109.

"Eng. 1875, s. 26; 1903-8 Rules, r. 164. On. 1914. s. 34; 1911 Rules,
r. 27 (4). Q. 1861, s. 60. P. 1913, s. 52. Tr. 1902, ss. 75, 78. Oan.
1906. s. 99.

21 Own. & Inc. 198-200.

Sect. 2] STATUTORY MORTGAGE. 257

Trinidad-Tobago the right to foreclosure is only given by implica-
tion, i.e., by conferring all ordinary rights of a mortgagee, and
enacting that the mortgagee is to be registered as owner " on the
registration of a final order of foreclosure."

These enactments are substantially the same in their effect. The
word " foreclosure " is used in the sense in which it is used when
an equitable mortgagee who has a mere charge (as by deposit of
deeds, &c.) over unregistered land takes foreclosure proceedings
and obtains an order for the land to be conveyed to him — the legal
estate being in the mortgagor.22 But whilst in England, Ontario,
and Trinidad-Tobago the foreclosure order itself is (under the
statutes or rules) sufficient authority for the mortgagee to be entered
on the register as owner,23 in North-West Territories a vesting
order (which may be contained in the foreclosure order) is neces-
sary ;24 in Queensland and Papua such a vesting order can only be
had in case of the refusal of the owner to convey or transfer to the
mortgagee, a direction for such conveyance or transfer being in-
serted in the foreclosure order.25

The special statutory procedure for obtaining foreclosure is to
be found in New South Wales, South Australia, Tasmania, Vic-
toria, Western Australia, Jamaica, and Manitoba.26 In these seven
jurisdictions an ordinary action for foreclosure cannot be brought,
by the mortgagee, and the statutory method must be adopted.27
This method is shortly as follows:28 After six months' default by
the owner, the mortgagee (having unsuccessfully offered the pro-
perty for sale) makes formal application to the registry for an
order of foreclosure, and upon this order being issued and regis-
tered the mortgagee becomes the registered owner of the land. In
effect, the land is transferred by the owner to the mortgagee, and
the latter is thus perhaps in a better position than if an action of
foreclosure had been brought and completed by a vesting order or

"See James v. James (1873) L. R. 16 Eq. 153; Huntingdon v. Inland
Revenue Commrs. [1896] W. N. 9.

23 See Weymouth v. Davis [190S] 2 Ch. 169.

24 Colonial Invest. Co. v. King (1902) 5 Terr. R. 371. stated in
Can. Torr. Syst. 308, 309.

28 British and Australasian Co. v. South Queensland Pastorate Co.
(1894) 6 Q. L. J. 83; Witeon v. Broun (1896) 7 Q. L. J. 16.

* X. S. W. 1900. ss. 61. 62 ; S. A. 1886. ss. 140-142 : Tas. 1862. ss. 121,
122 ; V. 1915, ss. 151, 156, 161. 162 : W. A. 1893, ss. Ill, 116, 121, 122 ;
J. 1888, ss. 84. 89, 94, 95 ; If. 1913, ss. 114, 116, 122-124, 126.

"Greig v. Watson (1881) 7 T. L. R. 79; Long v. Town (1889) 10
N. S. W. Eq. 253; Re Alaric and Frechette (1913) 25 West. R. 648 (Man.).

* Aust. Torr. Syst. 953-961 ; Can. Torr. Syst. 319 et seq., 341 et seq.

B.T.L. 17

258 MORTGAGES, dc. [Ch. vi.

a foreclosure order absolute being registered. The statutory re-
quirements as to service of notice, &c, must of course be strictly
complied with.20 And mere compliance with the letter of the
statutes is not always sufficient, the registrar having a judicial dis-
cretion and being bound to act on the general equitable principles
relating to foreclosure and redemption; thus, a mortgagee who is
the trustee of the mortgagor may be refused a foreclosure order.30

In three of the above-mentioned jurisdictions — Victoria, West-
ern Australia, Jamaica 31 — provision is made (expressly in Vic-
toria and impliedly in Western Australia and Jamaica) for giving
a mortgagee whose mortgage was created prior to initial registra-
tion, and is not therefore in statutory form, the choice of foreclosing
by ordinary action in the courts or by the statutory procedure. In
all cases the mortgage must have been entered on the register as an
incumbrance, and in Victoria it must be " a legal mortgage/'

In the remaining two jurisdictions — 'Saskatchewan and Al-
berta 32 — the mortgagee may either proceed by ordinary action for
foreclosure (as in North- West Territories), or may adopt the statu-
tory procedure (as in Manitoba). It has been said that these are
merely alternative methods of procedure, and that any jurisdiction
possessed by the courts, as for instance in re-opening foreclosure,
can be exercised equally whichever procedure is adopted.33 The ex-
press provisions of some statutes by which a mortgagee after
foreclosure is placed in the position of a transferee apply (if read
literally) only to the statutory method of foreclosure.

The mortgagee may have the full ownership or fee simple
vested in him by his registration or foreclosure, even though the
mortgagor was not the owner in fee. The mortgaging owner may
have only a life estate, with a power of appointment over the fee,
but on foreclosure the whole interest in the land that might have
been the subject of an assurance by the mortgagor will become
vested in the mortgagee, who will be registered as owner accord-
ingly.34

The title conferred on the mortgagee by his being registered as
owner of the land after foreclosure appears to be substantially the
same, whatever the procedure may have been, though perhaps the

29 In re Burton (1901) 27 V. L. R. 437.

80 In re National Trustees Co. (1897) 19 Aust. L. T. 222.

31 V. 1915, ss. 168-174 ; W. A. 1893. s. 124 ; J. 1888, s. 109.

32Sas. 1917, ss. 108, 112-114: Al. 1906, ss. 62, 62A (4, 10-16).

38 Union Bank of Canada v. Eugen [1917] 2 W. W. R. 395 (Sas.) :
Donqlas v. Mutual Life Ass. Co. [1918] 1 W. W. R. 239 (Al.)— finally
upheld, 57 Can. S. C. R. 243. But see now Al. 1906. s. 62B.

z,Ex p. Newcastle Build. Co. (1905) 5 S. R. (N. S. W.) 237.

Sect. 2] STATUTORY MORTGAGE. 259

statutory foreclosure is not so readily re-opened as when the proce-
dure has been b}* action and registration of the order of the court.39
There is however considerable difference between registered and
unregistered land with respect to the result of foreclosure. This
arises partly from the fact that the title of the mortgagee before
and after the foreclosure is completely different in the case
of registered land,36 whilst under the general law the nature of his
title in the case of a legal mortgage remains the same to a great
extent;37 it is also partly due to the scheme of the system of regis-
tration of title, by which the registered owner has his title war-
ranted irrespectively of the nature of his predecessor's title.

Foreclosure in the case of registered land cannot be re-opened
as may be done — almost as a matter of course — under the general
law,38 though in some jurisdictions there is express legislation on
the subject.39 Independently of this legislation, a purchaser from a
mortgagee who has foreclosed and become the registered owner of
the land is as fully protected as any other purchaser.40 With re-
spect to the right of the mortgagor to re-open a foreclosure as
against the mortgagee-owner himself, the rule has been laid down
differently in different jurisdictions. Under the Australian system
of statutory foreclosure, a foreclosure duly completed cannot be re-
opened at the mere wish of the mortgagor.41 Where the statutory
system is not in force, and where foreclosure can be had both by
the statutory method and under the equity jurisdiction of the

■ Colonial Invest. Co. v. McManus T19181 1 W. W. R. 561.

"See Matton v. Lipscomb (1895) 16 N. S. W. Eq. 142, 147; Ex p.
Newcastle Build. Co., supra.

37 For the difference, see Heath v. Pugh (1882) 6 Q. B. D. 345, 7
A. C. 235.

** Campbell v. Holyland (1877) 7 Ch. D. 166.

" In Victoria, even in the case of unregistered land, foreclosure can-
not now be re-opened: Conveyancing Act 1915, s. 32 (see V. 1915, s. 162,
Appx. post). In Trinidad-Tobago foreclosure of registered land cannot
be re-opened " as against any subsequent transferee," &c. : Tr. 1902, s. 78.

"Richards v. Thompson (1911) 18 West. R. 179 (Sas.> ; Williams v.
Box (1910V 44 Can. S. C. R. 1, 9.

" Campbell v. Bank of New South Wales (1883) 16 N. S. W. Eq. 285,
11 A. C. 192; In re Premier Perm. Build. Assoc. (1899) 25 V. L. R. 77,
80; Fink v. Robertson (1907) 4 C. L. R. 864; Aust. Torr. Syst. 960. In
In re Premier Perm. Build. Assoc, the application to registered land of the
general rule laid down in Campbell v. Holyland (supra) is expressly
denied, and Campbell v. Bank of New South Wales is recognized as auth-
oritative on this question. Fink v. Robertson overruled In re Premier Perm.
Build. Assoc, on the actual point decided, though not on the general
principle, and leave to appeal was refused by the Privy Council: Times,
29 July 1907. In Manitoba tbe section (M. 1902, s. 126) on which Wil-
liams V. Box (1910, 44 Can. S. C. R. 1) was decided (re-opening fore-
closure) is omitted from the present statute.

260 MORTGAGES, dc. [Ch. vi.

courts, the rule against re-opening foreclosure is not perhaps so
stringent; but the cases are not uniform.42

With respect to the effect of proceedings being taken by the
mortgagee, which in the case of unregistered land would have the
effect of re-opening the foreclosure, the general rule in the case of
registered land is probably the same; but the right of the mort-
gagee to sue on the covenants and take other proceedings has been
abrogated in some jurisdictions,43 so that cases in which re-opening
of the foreclosure would result will be correspondingly less num-
erous.44

When the debt has been extinguished by the foreclosure — as in
Australia, any right of action against a surety would seem to be no
longer available. This is expressly enacted in Victoria,45 but seems
to follow from the judicial decision which anticipated the new rule
laid down by statute.46 The same enactment in Victoria ex-
pressly preserves all other remedies of the mortgagee, except his
right to sue the mortgagor or a surety for the debt; thus the col-
lateral right to policy moneys might perhaps remain enforce-
able, as now decided in Canada.47 If the mortgagee, in the Can-
adian jurisdictions, obtains judgment for the debt before foreclos-
ure, he can usually issue execution notwithstanding completion of
the foreclosure ;48 the same rule would seem to hold in Victoria and
other jurisdictions. In Alberta an action on the covenant or execu-
tion under a judgment cannot now be proceeded with until after
sale, and foreclosure operates as a full satisfaction of the debt.49

Leasehold land, as well as freehold, may of course be the subject
of foreclosure. There are however few references to mortgaged
leasehold in the statutes, and these mostly relate to the effect of the
mortgagor becoming bankrupt, &c. ; in Western Australia the con-

42 In Colonial Invest. Co. v. King (1902, 5 Terr. R. 371) the right to
re-open after foreclosure by Court proceedings was denied ; in Colonial
Invest. Co. v. McManus [1918] 1 W. W. R. 561 (Sas.) this right was
affirmed. In Williams v. Box (supra) the foreclosure (statutory) was re-
opened, under s. 126 of M. 1902. now repealed.

48 See Fink v. Robertson (1907), 4 C. L. R. 864, and as to variance
between Australia and Canada, ante, p. 240.

44 See Orser v. Colonial Invest. Co. [1917] 3W. W. R. 523 (Sas.) ; Noble
v. Campbell (1911) 18 West. R. 591 '(Man.) ; Isman v. Sinnott -[1919] 2
W. W. R. 61 (Sas1.). Reopening of foreclosure was refused in Credit
Fonder v. Redekope [1919] 2 W. W. R. 158 (Sas.).

^Conv. Act 1915, s. 32 (see V. 1915, s. 162, Appx. post). This legis-
lation has been- followed, and carried further, in British Columbia : Sect. 3
post, p. 277; B. C. 1911, s. 14A. See too, now, as to Alberta, Al. 1906,
s. 62B.

"Fink v. Robertson, supra.

"Mutual Life Ass. Co. v. Douglas (1918), 57 Can. S. C R 743.

48 Orser v. Colonial Invest. Co., supra.

49 Al. 1906. ss. 62 (2), 62B ; Security Trust Co. v. Sayrc [1919] 2
W. W. R. 863 (Al.).

Sect. 2] STATUTORY MORTGAGE. 261

sent of the minister for lands is necessary in the case of a Crown
lease, before a foreclosure order can be made.50

7. Right to deal with mortgage security. In all twenty juris-
dictions the mortgagee is, either expressly or by the plainest impli-
cation, authorized to transfer his mortgage,51 though only in five —
England, Ontario, Xew Zealand, Manitoba, Saskatchewan 52 — do
the statutes or rules refer to the right to sub-mortgage.

In England, Ireland, and Ontario,53 transfers of mortgage — the
word used being " charge " — are expressly authorized by the stat-
utes, and are dealt with both in statutes and rules, and some ex-
press provision (though different in each) is made with respect to
the title acquired by the transferee. In all three registration is
essential to the vesting of the mortgage in the transferee. In Eng-
land the provisions generally relating to transfer of mortgage are
elaborate in detail, but omit the express warranty of title54 which
is given to the transferee in Ireland and Ontario. In Ireland the
transferee gets " the same title to the charge as a registered trans-
feree of land . . . has to the land." In Ontario the transferee gets
" the ownership of the charge free from any unregistered interests
therein." In England it is merely enacted that " a registered trans-
feree for value " is not " affected by any irregularity- or invalidity
in the original charge itself, of which " he was " not aware." Both
in England 55 and in Ontario, though not in Ireland, provision
is made for transfer of part of the money secured by a mortgage.
In England 56 provision is also made for the registration of new

WN. S. W. 1900. s. 91; S. A. 1886. s. 173 (2) ; Tas. 1862, s. 77; V.
1915, s. 137; W. A. 1893, s. 97, and 1909, s. 7; J. 1888, s. 76.

51 In general the same considerations apply to mortgages as to land, with
respect to the necessity for registration and the effect of unregistered instru-
i --i-ii'-j and transactions: "Unregistered transactions" ante, p. 111.

■ Eng. 1903-8 Rules, rr. 178-181 ; Own. & Inc. 121 ; Prec. Reg. Land.
146. On. 1911 Rules, r. 28. N. Z. 1915, s. 116 (4, 5). M. 1913. ss. 110,
111. Sas. 1917, s. 122 (4). Can. Torr. Syst. 348. The New Zealand
statutes, from which the original of Sas. 1917, s. 122 (4), was evidently
taken, formerly contained another reference to sub-mortgages (N. Z. 1885,
s. 94, Aust. Torr. Syst. 285, 964; N. Z. 1908, s. 102), but this section was
amended (N. Z. 1913, s. 9) and now appears as N. Z. 1915, s. 102. A
case under the repealed enactment is Pott v. Taranaki Dist. Registrar
(1906) 26 N. Z. R. 141, referred to later on as applicable in Saskatchewan
and Manitoba (note 67).

■•Eng. 1875, s. 40; 1897, s. 9 (4. 6) ; 1903-8 Rules, rr. 151. 157, 168.
174, 178-181, f. 49. I. 1891, s. 41 ; 1910 O. 4, r. 1 ; f. 11. On. 1914, s.
54 ; 1911 Rules, r. 28 ; f. 29.

54 As to mortgages and warranty of title, see sect. 1 ante, p. 195;
"Forgery " ante, p. 143.

53 Eng. 1903-8 Rules, r. 157, which by r. 174 applies to " charges."

"Eng. 1903-8 Rules, r. 151, which by r. 174 applies to "charges;"
Own. & Inc. 242, 243.

2(i2 MORTGAGES, &c. [Ch. vx.

owners of a mortgage, where a vesting order or a vesting declara-
tion has been made and a transfer cannot be obtained.

In these three jurisdictions the statutes, rules, and prescribed
forms speak only of the transfer of the " charge," and make no ref-
erence to assignment of the debt. The statutes do however in effect
provide for the due assignment of the debt, by enacting that the
covenants for payment are impliedly made by the covenantor with
the mortgagee " for the time being," thus enabling the transferee
of the mortgage to sue for the debt in his own name.57

In New South Wales and Trinidad-Tobago the power to transfer
a mortgage is not conferred in so many words, but mortgages are
included in the " interests " in land that may be transferred ; in
the remaining eight Australasian jurisdictions, Federated Malay
States, and Jamaica, express permission to transfer a mortgage is
given, and in all these twelve jurisdictions the tiansferee is ex-
pressly authorized to sue for the debt in his own name, thus render-
ing any separate assignment of the debt unnecessary.58 In Leeward
Islands 59 express permission to transfer is also given, and the trans-
feree will " enter into the whole rights of the transferor," nothing
being said about the right to sue for the debt. In Manitoba, Sas-
katchewan, Alberta, and North-West Territories,60 the enactments
are to the same effect as in the majority of the Australasian juris-
dictions, with the addition that transfer of part of a mortgage is
authorized. In Manitoba a mortgage created prior to initial regis-
tration may be assigned and the assignment registered as though in
statutory form.

The statute law on transfer of mortgages is thus substantially
to the same effect in all twenty jurisdictions. It may be that the
case law of one jurisdiction is not always applicable in all. For
instance, on the question of the title conferred by registration of a
forged transfer of mortgage the law as laid down in England may
possibly not hold in every other jurisdiction.61 The cases on the
two points now to be mentioned seem, however, to apply in all jur-
isdictions.

It has been held in Victoria that registration of the transfer of

57 Eng. 1875, s. 23 ; I. 1891, s. 40 ; On. 1914, s. 31. And see Own. &
Inc. 170; Prec. Reg. Land. 149.

68 N. S. W. 1900, ss. 46, 51. 52 ; Tr. 1902, ss. 51, 60. 61 ; Q. 1861, ss.
65, 66: S. A. 1886, ss. 150, 151; Tas. 1862, ss. 63, 64; V. 1915, ss. 121.
122; W. A. 1893, ss. 82, 83; P. 1913. ss. 37, 38; N. Z. 1915, ss. 89, 90;
Fi. 1876 (1906), ss. 46-48; F. M. S. 1911, ss. 33-35; J. 1888, ss. 63, 64.

39 L. Is. 1886 (1914), ss. 64-66.

* M. 1913, ss. 106, 109-111 ; Sas. 1917, ss. 122-124 ; Al. 1906, ss. 66-68 ;
Can. 1906, ss. 104-107.

91 See Att.-Gen. v. Odell [1906] 2 Ch. 47 ; " Forgery " ante, p. 143.

Sect. 2] STATUTORY MORTGAGE. 263

mortgage is not such notice to the owner of the land as to prevent
the application of the equitable rule by which payments to the ori-
ginal mortgagee are to be deemed payments to the transferee when
made without notice of the transfer ; consequently, the owner of the
land is entitled, in an action for redemption against the transferee,
to be credited with payments made to his original mortgagee with-
out notice.62 This rule of law is impliedly enacted in Ontario,
where every transfer of mortgage is " subject to the state of ac-
count " between the owner of the land and the original mortgagee;63
but the enactment does not apply to the case of a transferee who
takes his transfer without notice that no money at all had in fact
been paid to the mortgagor.64

It has been held in Australia that the liability of a person who
guarantees the mortgage debt is not affected by the statutory assign-
ment of the debt that takes place when a transfer of the mortgage is
registered.65 This statutory assignment does not of itself com-
pletely vest the benefit of the guarantor's contingent liability in the
transferee of the mortgage, and the extent to which any such vest-
ing does take place depends on the general law of each jurisdic-
tion.66

Sub-mortgages, as already stated, are only expressly provided
for in England, Ontario, New Zealand, Manitoba, and Saskatche-
wan (ante, p. 261). In England the sub-mortgage is assimilated
as closely as possible to a mortgage. In Ontario the sub-mortgage
is in actual fact a transfer of mortgage containing an agreement
for re-transfer. In the New Zealand statute a sub-mortgage is
merely mentioned incidentally, and the consent of the sub-mort-
gagee made necessary for any discharge, or variation in the terms
of the mortgage. In Manitoba and Saskatchewan the sub-mort-
gagee is given all the powers of a transferee, and the sub-mortgage
(though called in Manitoba a "mortgage," and in Saskatchewan a
" charge," of a mortgage) is in effect a transfer of the mortgage :
the mortgagee, having once given such a sub-mortgage, has no regis-
trable interest that he can transfer after the sub-mortgagee has
been registered.67

In those jurisdictions in which sub-mortgages are not author-

~Nioa v. Bell (1901) 27 V. L. R. 52; Own. & Inc. 170, 203. The
principle of this decision has been followed in Alberta : Grace v. Kuebler
[1917] 1 W. W. R. 1213, aflfd. 56 Can. S. C. R. L

"On. 1914, s. 54 (4). ** Dodds v. Ilarper (1916) 37 O. L. R. 37.

"Loxton v. Moir (1914) 18 C. L. R. 360. 366. 377. affjr. on this point
13 S. R. (N. S. W.) 143, 155 (Moir v. Loxton).

** Loxton v. Moir, supra.

"Pott v. Taranaki Dint. Reoistrar (1906) 26 X. Z. R. 141; note 52
supra.

264 MORTGAGES, dc. [Ch. vi.

ized by the statutes or rules themselves, there seems no reason why
a sub-mortgage should not be created on the model of a mortgage
of land; it may also be created by means of an absolute transfer
duly registered, constituting the sub-mortgagee the owner of the
security, and a collateral unregistered agreement giving the sub-
mortgagor the right of redemption.68 This right can (if desired)
be protected by a caveat on the register, and the sub-mortgagor
will then have a merely equitable interest protected like other equit-
able interests from unauthorized disposition on the part of the
legal owner (ante, p. 186).

8. Miscellaneous rights. There are certain rights enjoyed by a
mortgagee of unregistered land which accrue to him technically as a
result of his receiving a conveyance of the mortgagor's ownership
of the land. Some of the registration statutes contain enactments
which have been considered necessary in view of the difference be-
tween the old and the new methods of securing the debt on the
land. These enactments relate to such matters as the custody of
the owner's certificate of title, restrictions on the authority of 'the
owner to deal with the mortgaged property, the effect of future or
further advances by the mortgagee, &c. In some jurisdictions
where the statutes are silent these points have been the subject of
decision by the courts, in others they are still at large both as re-
gards statute and case law.

The question of the mortgagee having the custody of the own-
er's certificate of title is referred to in the statutes of eight juris-
dictions only, and the enactments are not in agreement. In Eng-
land the mortgagee, " subject to any stipulation to the contrary,"
is not entitled to this custody;69 in practice he will usually stipu-
late for it, and so (it is believed) in other jurisdictions where there
is no statutory prohibition against the certificate being handed
over to the mortgagee.70 In North-West Territories and Leeward
Islands 71 the owner is also entitled to the custody of his certificate
of title, though apparently there is nothing to prevent the mort-
gagee from stipulating for it. But in New Zealand the mortgagee
" or first mortgagee for the time being " is * entitled to the posses-
sion of " the owner's certificate of title, and it may also " by agree-
ment be deposited " at the registry for safe custody.72 In Mani-

68Prec. Reg. Land, 146; Aust. Torr. Syst. 796, 964, 972; Conv. Prec.
165, 167. wEng. 1897, s. 8 (4) ; Own. & Inc. 160, 366.

70 Aust. Torr. Syst. 923, 948.

"Can. 1906, s. 97; L. Is. 1886 (1914), s. 49.

72 N. Z. 1915, s. 121. This enactment was relied on as strengthening
the mortgagee's rights in Campbell v. Auckland Dist. Registrar (1910) 29
X. Z. R. 332.

Sect. 2J STATUTORY MORTGAGE. 265

toba, Saskatchewan, and Alberta,73 neither owner nor mortgagee is
entitled to hold the owner's certificate of title, but it is deposited
at the registry and there retained " on behalf of all persons inter-
ested in the land."

The right of the mortgagee to bargain for the custody of the
owner's certificate of title is impliedly recognized by the statutes of
Victoria, Western Australia, and Trinidad-Tobago,74 and provi-
sion is made for its production when required for registration of a
subsequent mortgage. In other jurisdictions the case of the cer-
tificate of title being in the possession of the mortgagee seems to be
one that can be dealt with by the registry or the courts under the
general powers of compelling production of documents.73 It has
been held, under a repealed Act in Ireland, that the owner's certi-
ficate of title is " a proper document for a mortgagee to insist upon
having the custody of," 76 and this seems applicable in other juris-
dictions where there is no enactment on the subject.

The registration of the mortgage cannot but affect to some
extent, in accordance with the principles of registration of title,
the interest taken under a lease made by the owner subsequently
to the mortgage. In the majority of the twenty jurisdictions the
consent of the mortgagee is expressly required in order to make
the lease valid as against him. It may be questioned, however,
whether any such express enactment is necessary in view of the
provisions of the statutes giving priority to transactions already on
the register. In three jurisdictions — Ireland, Manitoba, Leeward
Islands — the statutes contain no special reference to the subject of
leasing land in mortgage. In England and Ontario — where
u notice " only and not the lease itself is registered — the lease has
no effect as an incumbrance against incumbrances already registered,
unless (in England) the lease is otherwise binding on the prior
incumbrancer; nothing however is said in the statutes about the
surrender of such a lease.77

In the remaining jurisdictions the consent of the mortgagee is
essential to the lease being valid against him. In Queensland there

WM. 1913, s. 127; Sas. 1917. s. 101; Al. 1906. s. 71. There is a
similar enactment in British Columbia (B. C. 1911, s. 20A), although
no provision is made for mortgages in statutory form.

"V. 1915, ss. 83, 84, 166; W. A. 1893, s. 127; Tr. 1902, s. 83. The
contrary is suggested as the proper practice in Ireland : Bro. & Gl. 137.

I5Aust. Torr. Syst. 948, 949; Can. Torr. Syst. 116; Registrar-General
V. Wright (1917) 23 C. L. R. 214; Anthony v. Speed [1917] S. A. R. 110.

wEx p. Rooney (1874) I. R. 9 Eq. 89, under the Record of Title
Act (Ireland) 1865 (c. 88).

"Eng. 1875, s. 50; 1903-8 Rules, r. 203; Own. & Inc. 121, 234-237.
On. 1914, s. 70.

26G MORTGAGES, <&c. [Ch. vi.

is no enactment making the consent of the mortgagee essential to
the validity of a surrender of the lease,78 but in the other jurisdic-
tions— eight Australasian, Federated Malay States, Trinidad-
Tobago, Jamaica, Saskatchewan, Alberta, North- West Territories 79
— the consent of the mortgagee is essential (except in Trinidad-
Tobago, so far as the Conveyancing Ordinance applies) both to lease
and surrender. The consent of the mortgagee given prior to regis-
tration of the lease has the same effect as if the mortgage had been
registered after and subject to the lease.80

In Victoria, Western Australia, and Jamaica,81 the statutes con-
tain enactments not found in other jurisdictions with reference to
moneys received by owner or mortgagee (in Victoria and Jamaica
" first mortgagee ") as the result of litigation relating to the mort-
gaged property. These moneys (if recovered by the owner) the
mortgagee may have paid over to himself in reduction of the mort-
gage debt. The proper interpretation of these enactments is ob-
scure, and they do not seem to have come under judicial considera-
tion; they are connected loosely with the enactments (dealt with
further on) which purport to confer on the statutory mortgagee
the same rights as are enjoyed by virtue of a mortgage conveying
the legal estate in unregistered land, but the rights conferred by the
enactments now under consideration do not seem to exceed those of
a mortgagee in other jurisdictions where these enactments are ab-
sent.

The subject of future or further advances by a mortgagee is
expressly referred to in the statutes or rules of four jurisdictions
only — England, Ireland, Ontario, Leeward Islands.82 The Lee-
ward Islands statute prohibits a mortgage " for any undetermined
sum/' only allowing security for sums "expressly stated . . . and
actually advanced/' In England a form is prescribed for a
"charge ... to secure future advances." In Ireland advances
made under a mortgage securing " future advances " are expressly
protected against subsequent charges, except as regards advances

,SQ. 1861, ss. 52, 54.

<°N. S. W. 1900, ss. 53, 54; S. A. 1886. ss. 118, 123; Tas. 1862, ss.
47, 48 ; V. 1915. ss. 131, 138 ; W. A. 1893, ss. 91, 98 ; P. 1913, ss. 41, 43 ;
N. Z. 1915, ss. 95, 96; Fi. 1876 (1906). ss. 49, 56; F. M. S. 1911, ss.
36, 42; Tr. 1902, ss. 67, 70; J. 1888, ss. 70, 77: Sas. 1917, ss. 92, 97;
Al. 1906, ss. 54, 59; Can. 1906, ss. 88, 93.

80 Bacchus Marsh Brick Co. v. Federal Build. Soc. (1896) 22 V. L. R.
181.

81 V. 1915, ss. 158-160 ; W. A. 1893, ss. 118-120 ; J. 1888, ss. 91-93.

82Eng. 1903-8 Rules, r. 160; I. 1891. s. 77: On. 1914, s. 30 (6), in-
corporating by reference s. 74 of the Registry Act (R. S. 1914, c. 124) ;
L. Is. 1886 (1914), s. 44.

Sect. 2] STATUTORY MORTGAGE. 26?

made after the date of the subsequent charge " and with express
notice in writing of " it : in Ontario the general enactment em-
bodied in the registration statute is to the same effect.

The enactments in Ireland and Ontario seem to state the law on
the subject of future advances as it would be held to be in the other
jurisdictions, except Leeward Islands. Shortly, the rule seems to
be that further advances by a mortgagee cannot ordinarily be made
so as to gain priority over subsequent registered mortgages, but
advances under a mortgage which expressly secures future ad-
vances may gain priority if made without notice of any subsequent
mortgage, even though the latter be registered or protected by
caveat.83

Insurance of crops against hail by a mortgagee is expressly
provided for in Saskatchewan.84 But such an enactment seems
merely declaratory, and the mortgagee in other jurisdictions would
seem to have a similar right.

9. General rigTits as under the ordinary law of unregistered land.
In some jurisdictions the rights of a mortgagee under a statutory
mortgage are defined by reference merely to the rights enjoyed by
a mortgagee of unregistered land who has the legal estate conveyed
to him. In others the detailed powers conferred by the statutes
are supplemented by a general reference to legal estate mort-
gages. In the majority of statutes these references to the analogy
of the general law are altogether absent. On the whole, such refer-
ences seem to afford little real help in determining what are the pre-
cise rights conferred on a statutory mortgagee.

The two jurisdictions in which this legislation by reference has
been carried furthest are Ireland and Trinidad-Tobago.85 In Ire-
land the statutory mortgage will "operate as a mortgage by deed
within the meaning of the Conveyancing Acts," and the mortgagee
has " all the rights and powers of a mortgagee under a mortgage by
deed." The Trinidad-Tobago enactments, though differently
worded, are to the same effect.

In England 86 the provisions of the Conveyancing Acts relating
to mortgages are made to " apply to registered charges," and this
apparently has the same effect as the Irish enactment. In Ontario

"Own. & Inc. 203; Aust. Torr. Syst 963; Can. Torr. Syst. 193;
Queensland Trustees v. Registrar of Titles (1888) 5 Q. L. J. 46, 51; Nioa
v. Bell (1901) 27 V. L. R. 82; Peck v. Sun Life Ass. Co. (1905) 1 West.
R. 302 (B. C.) ; Bain v. Pitfield (1916) 33 West. R. 681 (Man.) ; Grace
v. Kuebler [1917] 1 W. W. R. 1213 (AL). affd. 56 Can. S. C. R. 1.

MSas. 1917, s. 106.

" I. 1891. s. 40 : Bro. & Gl. 153. Tr. 1902. ss. 75, 77.

*Eng. 1897, s. 9 (1. 2).

268 MORTGAGES, dc. [Ch. vi.

in a similar way portions of general statutes relating to mortgages
of unregistered land are incorporated in the registration statutes
and made to apply to statutory mortgages.87 And in all three jur-
isdictions relevant provisions of conveyancing statutes will often
apply, apart from express incorporation.88

In New South Wales the mortgagee is empowered to enter into
possession, distrain, and bring ejectment, as though he had " a con-
veyance of the legal estate"; this enactment has been relied on as
authorizing the mortgagee to make a lease of the land.89 There are
similar enactments in Victoria, Western Australia, and Jamaica,
but though the mortgagee is empowered to enter into possession,
distrain, and bring ejectment, the words " assurance of the legal
estate " refer only to the right to bring ejectment ; under these ■
enactments the mortgagee cannot eject a person in possession under
the owner prior to the mortgage without a previous demand for
possession.90

The detailed powers of mortgagees are supplemented by very
wide enactments, in Victoria, Western Australia, Jamaica, and
Manitoba,91 purporting to confer the rights enjoyed by mortgagees
under the general law. In Victoria and Manitoba these rights are
conferred on " first " mortgagees only, but on " mortgagees " gener-
ally in Western Australia and Jamaica ; in all four the rights and
remedies conferred are those which the mortgagee would have had
a if the legal estate in the land or term mortgaged had been actu-
ally vested in him " with a right in the owner or mortgagor of quiet
enjoyment until default. In addition to this, in Victoria, Western
Australia, and Jamaica, the mortgagor may not commence any
"action at law" — which includes "suit in equity"92 — in respect
of any cause of action for which the mortgagee might sue under
the general power above referred to, without the written consent
of the mortgagee. Any restriction thus placed on the right of the
owner to sue without the mortgagee's consent continues in force
until the mortgage is actually discharged on the register.93 The

"On. 1914, ss. 30 (6), 31 (2), referring to the Registry Act and the
Short Forms of Mortgages Act.

88 See Dodds v. Harper (1916) 37 O. L. R. 37.

"*N. S. W. 1900, s. 60; Finn v. London Bank of Australia (1898) 19
N. S. W. 364, 368.

90 V. 1915, s. 151 ; W. A. 1893, s. Ill ; J. 1888, s. 84 ; Colonial Bank
v. Roache (1870), 1 V R. L. 165.

91 V. 1915, ss. 156, 157 ; W. A. 1893, ss. 116, 117 ; J. 1888, ss. 89, 90 ;
M. 1913, s. 116. See Aust. Torr. Syst. 961, 962.

"Stretlitz v. Britnall (1912) 15 W. A. R. 9.

"Taylor v. Wolfe (1892) 18 V. L. R. 727; Bree v. Scott (1902) 29
V. L. R. 692, 699.

Sect. 2] STATUTORY MORTGAGE. 269

mortgagee's consent is not, however, required to actions by the
owner against persons who infringe his possessory rights.94

The general rights conferred on the mortgagee by the above
enactments have been described as " all the rights and remedies
which he would have had as owner of the legal estate under the old
law, concurrently with a right in the mortgagor to enjoy the mort-
gaged land quietly until def ault." 95 But the mortgagee only has
these rights and remedies " so long as the security is on foot as a
security, and the ownership of the land is consequently vested in the
mortgagor"; they do not per se enable him to convey the land
away or otherwise extinguish the owner's title, and the statutory
provisions relating to sale and foreclosure are paramount.96

These enactments have been found useful as facilitating a mort-
gagee's proceedings to obtain possession of the land. Thus, where
the mortgage fixes a time for repayment of the principal, this
taken with the statutory right of quiet enjoyment until default,
constitutes a re-demise to the owner, so that landlord and tenant
proceedings can be taken; but if no time for repayment is fixed,
as in a bank mortgage to secure a current account, there is no re-
demise, and no notice as in the case of a tenancy for a term is neces-
sary.97 The registered transferee of the mortgagee cannot take
landlord and tenant proceedings unless he is a party- to some agree-
ment with the owner, or the latter is estopped from disputing his
title.98 .

SUB-SECTION 3 — LIABILITIES AND RIGHTS OF THE OWNER OF THE

LAND.

The liabilities and rights of the owner of the land in mortgage
are of course correlative to the rights and liabilities of the mort-
gagee, and have for the most part been sufficiently referred to in
treating of the mortgagee's rights, &c. (sub-sect. 2 ante, p. 236).
The mortgagor retains the formal ownership of the land — the
scheme of the statutory mortgage being to leave the mortgagor still
registered as owner of the land, whilst the mortgagee has express

"Louch v. Ball (1879) 5 V. L. R. L. 157: Burwood Land Co. v. Tuttlr
(1895) 21 V. L. R. 381. The more recent case of Strelitz v. Britnall
(supra) is perhaps inconsistent on this point with these cases.

"Commercial Bank v. Breen (1889) 15 V. L. R. 572.

» Smith v. National Trust Co. (1912) 45 Can. S. C. R. 618. 644. 649,
660; National Bank of Australasia V. United Hand-in-Hand Co. (1879)
4 A. C. 391. 406.

n Commercial Bank v. Breen, supra; Farrinaton v. Smith (1894) 20
V. L. R. 90; Equity Trustees Co. v. Lee [1914] V. L. R. 57.

"Cross v. McLeod (1894) 20 V. L. R. 399.

270 MORTGAGES, dc. [Ch. vi.

powers conferred on him for making his security effective. This
difference from the mortgage by conveyance of the land to the
mortgagee, under the general, law, results in some difference in the
rights of the owner as compared with the rights of a mortgagor of
unregistered land. This difference appears chiefly in connexion
with the owner's right to deal with the mortgaged land, and with
his right to " redeem " or have the land discharged of the incum-
brance created by the mortgage. The owner has also the right to
enter a caveat against the improper exercise of his powers by the
mortgagee.1

The right to deal with the land will most commonly be exer-
cised by transferring to a purchaser on sale, by making leases, and
by creating a second (or third or fourth) mortgage. The transfer
to a purchaser will not affect the mortgagee's rights against the
land or against the original owner under the personal covenants;
the position of the transferee or purchaser has been referred to
ante (p. 241). Leases will usually require for their validity the
consent of the mortgagee {ante, p. 265). A second or other mort-
gage will be in the same form as the first mortgage and can, as in
the case of a sale, be executed by the owner of the land without any
permission or consent from the first mortgagee, though the pro-
duction of the certificate of title will usually be necessary in order
to obtain registration of the new mortgage.2 The rights of the
second mortgagee will of course be subject to those of the first. The
second mortgagee will not necessarily, by paying the interest due
on the prior mortgage, make himself personally liable for the prin-
cipal.3 The priority of a new mortgagee who pays off the first may
be preserved (as in the case of unregistered land) by taking a
transfer of the first mortgage instead of discharging it.4

As a statutory mortgage is effected by a charge in lieu of a con-
veyance, so the release of the land from the incumbrance is effected
by a " discharge " of the mortgage in lieu of a reconveyance of the
land. This discharge of the mortgage on payment of the money
secured is commonly referred to as " redemption," though the words
" redeem " and " redemption " are properly applicable only to
cases of reconveyance. The owner's right to redeem his land is
therefore a right to have the mortgage discharged or removed from

1Davies v. Herbert (1885) 11 V. L. R. 386, 394.

* See Aust. Torr. Syst. 923, 964 ; Own. & Inc. 203. As to mortgagee's
custody of certificate of title, and its production, see ante, p. 264; as to
registration of new mortgage, ante, p. 232.

3Burne v. Stuart (1884) 3 N. Z. S. C. 247.

'Mordaunt's Off. Assignee v. Gibson (1914) 33 X. Z. R. 1423.

Sect. 2] STATUTORY MORTGAGE. 271

the register, and this is a legal, not a merely equitable, right."'
The statutes in all twenty jurisdictions make provision for this dis-
charge or removal with some differences in detail.

In England, Ireland, and Ontario,6 the cessation or satisfaction
of the charge created by the registration of the mortgage is treated
as a matter of evidence upon which the registrar can act in clearing
the register of the incumbrance on the owner's title: forms (not
under seal, except in case of a " release " of the land, or part of it,
from the mortgage in Ireland) are prescribed, but the use of them
does not appear to be obligatory.7 In the English rules special
provision is made for discharge of mortgages to building societies,
&c, and also for combining a discharge of mortgage with a transfer
of the land. Provision is also made in England and Ontario (and
the same practice obtains in Ireland) for incumbrances entered on
the register as existing at the time of the initial registration of
the land being discharged in the same way as statutory mortgages.8
Both in England and Ireland the instrument of discharge is in
practice regarded as a receipt, and dutiable as a receipt only and
not as a disposition of the land.9

In other jurisdictions the production of a formal memorandum,
duly signed and attested, discharging the land in whole or in part,
is usually essential for entry on the register of the fact of the mort-
gage having been discharged or satisfied. In New South Wales,
Queensland, Tasmania, Papua, Fiji, and Federated Malay States,10
the statutes enact that the memorandum must be " endorsed " on
the mortgage. In Tasmania a " partial " discharge must be by
separate instrument ; this practice it is believed is followed in other
jurisdictions.11 The * endorsement " is of course intended to be

5 Douglas v. Mutual Life Ass. Co. [1918] 1 W. W. R. 690, 693 (Al.).

•Eng. 1875. s. 28: 1903-8 Rules, rr. 166, 167. 182, 217: Own. &
Inc. 204. 205 : Br. & Sh. 116. 423. 424. 561. I. 1891. s. 42 ; 1910 O. 4. rr.
18. 19 ; Bro. & Gl. 65, 155. 245. On. 1914, s. 37 ; 1911 Rules, r. 30.

TEng. f. 48. Own. & Inc. 432; I. ff. 16, 17. Bro. & Gl. 305; On. ff.
35-37.

• Eng. 1875. s. 19 : 1903-8 Rules, rr. 216. 217 : Own. & Inc. 205. On.
1914. s. 27. I. 1891, s. 42 ; Bro. & Gl. 245.

•Own. & Inc. 204, note 39; Br. & Sh. 516; 49 Sol. J. 544, 549 (10
.Tune 1905) : Bro. & Gl. 245, (a " release " of the land from the mortgage
being on a different footing). The passages in Br. & Sh. (pp. 224, 424)
to the contrary effect were written before the decision in Firth V. Inland
Revenue [1904] 2 K. B. 205 ; but this case related to debenture stock of a
company, and possibly may not apply to statutory mortgages of registered
land.

■ N. iS. W. 1900. ss. 65, 67 ; Q. 1861. ss. 63. 64 ; Tas. 1862. ss. 59. 61.
and 1886, s. 33 : P. 1913. ss. 55. 56 : Fi. 1876 (1906) , ss. 72. 74 : F. M. S.
1911, ss. 54, 56. Sec Aust. Torr. Syst. 965-967.

11 This has certainly been so in New South Wales: Conv. Prec. 322,
H23 : MacDermott's Praet. of L. T. office. 48. 181.

272 MORTGAGES, dc. [Ch. vi.

made on the duplicate copy in the possession of the mortgagee, ex-
ecution of the mortgage in duplicate being prescribed in these jur-
isdictions {ante, p. 230). In the event of the mortgagee being
out of the jurisdiction without leaving any person authorized to
receive the mortgage debt, the amount due may be paid into the
State or public treasury and the mortgage discharged on production
of the official receipt at the registry. In New Zealand,12 the mem-
orandum of discharge may be " by endorsement on the mortgage or
otherwise," and in the absence of the mortgagee the debt may be
paid to the Public Trustee ; it is also enacted that " a mortgage
subject to a sub-mortgage " is not to be discharged " without the
consent in writing of the sub-mortgagee." In Victoria, Manitoba,
and Saskatchewan,13 the provisions are as in New South Wales, &c,
omitting the reference to endorsement — all that is required is the
" production of a memorandum " duly executed and attested. Ex-
ecution of the mortgage in duplicate is permitted but not per-
emptorily prescribed in Victoria {ante, p. 230). The Western
Australian, Trinidad-Tobago, and Jamaica 14 statutes follow the
Victorian, requiring merely a signed and attested memorandum,
but contain a further enactment enabling a mortgage that has
been entered on the register as existing at the time of initial regis-
tration to be discharged in the same manner as a registered statu-
tory mortgage.

In South Australia 15 there are, much as in Victoria, &c, pro-
visions for discharge on production of the mortgage instrument
et together with a receipt or memorandum signed " and attested,
and for discharge by payment to the State treasurer. The produc-
tion of the mortgage appears to refer to the duplicate copy in the
mortgagee's possession, but execution in duplicate is not peremp-
torily prescribed {ante, p. 230). There are also other enactments
that do not appear elsewhere in the Australian statutes. A puisne
incumbrancer is entitled (s. 131) to pay off the mortgagee and
take a transfer of the latter's security. It is also expressly enacted
that the " receipt or memorandum " may, when the mortgage is
" held on a joint account," be signed <e by one or more of the mort-
gagees " (s. 143). The registrar is also authorized, on proper evi-
dence, to enter a discharge of the mortgage in the register, not-
withstanding the absence of a formal instrument of discharge (s.

12 N. Z. 1915, ss. 116, 117.

18 V. 1915, ss. 163, 165; M. 1913, ss. 112, 125; Sas. 1917, ss. 118,
120, 121.

11 W. A. 1893, ss. 123, 124, 126: Tr. 1902, ss. 80. 81, 85; J. 1888, ss.
96, 98, 109.

15 S. A. 1886, ss. 131, 143, 144. 146-148.

Sect. 2] STATUTORY MORTGAGE. 2?3

148). A "partial discharge," subsequent to an endorsed partial
discharge, must be by "separate instrument" (s. 144).

The Leeward Islands statute 16 only makes it necessary for the
mortgagee to " sign such an instrument as may correctly set forth
the facts," and on this being " presented " the entry of the mort-
gage is " cancelled " on the register, or " altered," as required ; a
footnote to the section however refers to the schedule of forms, and
this form is substantially to the same effect as the forms of dis-
charge under other statutes. Execution of the mortgage in dupli-
cate is not referred to.

The statutes in Alberta and Xorth-West Territories 1T provide
for the production of the instrument of mortgage " having en-
dorsed thereon or attached thereto a receipt or acknowledgment "
in prescribed form, and the discharge is registered as under the
Australian statutes. The register may also be cleared of the mort-
gage upon production of a judge's order certifying that the amount
due has been paid, and also (in Alberta) upon producing a sepa-
rate instrument of discharge with proof of the loss or non-existence
of the mortgage itself. In the absence of the mortgagee the moneys
due ma}-, on obtaining a judge's order, be paid into a bank and
a discharge registered on production of the order and bank's re-
ceipt. The references to " endorsement " and " production " seem
to contemplate that the mortgage has been executed in duplicate, but
this (although apparently usual and convenient) is not prescribed
by the statutes, and is not necessary.18

The instrument of discharge being a mere contract may be
cancelled at any time before registration,19 and until it is actually
registered the powers of the mortgagee remain exercisable.20 In
order to be registrable, the discharge must be duly executed by the
persons who appear on the register as mortgagees for the time be-
ing.21 The only exception seems to occur in the case of South Aus-
tralia, where it is expressly enacted that " one or more of a num-
ber of joint mortgagees" may sign the discharge (ante, p. 272).
The registration of the discharge is however only necessary from
the conveyancing point of view, that is, in order to vest the land
in the owner freed from the incumbrance. The debt itself may be

■ L. Is. 1886 (1914). s. 67; sch. B. f. 12.

■ Al. 1906, ss. 63, 65 ; Oan. 1906. ss. 100, 102. 103.

18 Toronto General Trusts Corp. v. Rex (1917) 56 Can. S. C. R. 26.
affd. by P. C. [19191 A. C. 679.

19 Mordaunt's Off. Assignee v. Gibson (1914) 33 N. Z. R. 1423.
"Taylor v. Wolfe (1892) 18 V. L. R. 727.

11 Payne v. Rex (1901) 26 V. L. R. 705, 753, 762; [1902] A. C.
552, 560.

R.T.L. — 18

274 MORTGAGES, dc [Ch. VI.

recovered by the persons entitled apart from registration, as for
instance by the executors of a deceased mortgagee.22 A good re-
ceipt for the debt may also be given by one of two or more joint
creditors.23 On the other hand, if the mortgagees are in fact
trustees, registration of a duly executed discharge cannot be re-
fused merely on that ground.24

If the debt has been paid off, and the owner cannot otherwise
get a discharge registered, the mortgagee's interest is an interest
in land within the meaning of the Trustee Acts, and can be made
the subject of a vesting order accordingly.25

If the mortgagee refuses to execute a proper discharge, the
owner can institute proceedings in the nature of a redemption ac-
tion to compel him to do so.26 This right of redemption is not a
merely equitable right, as under the general law, but a legal right.27
An order against the mortgagee to execute a discharge includes as
part of the execution the delivery of the executed instrument to the
person entitled.28 Questions as to the proper form of the discharge
may arise in such an action, just as in an ordinary redemption ac-
tion. Thus, the mortgagee may contend that a beer covenant is to
continue to be binding on the owner notwithstanding payment of
the mortgage debt in full.29 Independently of the form of the dis-
charge, questions may also arise as to whether the discharge has
put an end to all the mortgagee's rights and remedies against the
land or against the owner personally, as for instance whether a beer
covenant entered into by a separate deed continues in existence.30
The question of the effect of a discharge duly registered upon the
liability of the owner of the land under the covenants for payment
is referred to ante, p. 240.

When the mortgage contains an acceleration clause, making the
whole principal due on default in payment of interest, or of an in-
stalment, &c, and the mortgagee exercises his power of sale or takes

"Payne v. Rex [1902] A. C. 552, 560.

"Bell v. Rowe (1901) 26 V. L. R. 511, 516, 517. In this case the
discharge was signed by both joint mortgagees, and the question was
whether a receipt for the debt by one only would have been good. The
statement on p. 966 of Aust. Torr. Syst. should be corrected.

"Ex p. Campbell (1888) 9 Aust. L. T. 183.

25 In re Cain (1893) 5 Q. L. J. 93.

"Ross V. Victorian Perm. Build. Soc. (1882) 8 V. L. R. 254: McClure
v. Marshall (1884) 10 V. L. R. 1. Other illustrations: Aust. Torr. Syst.
966, note 51.

27 Douglas v. Mutual Life Ass. Co. [1918] 1 W. W. R. 690, 693 (AL).

28 McClure v. Marshall, supra. .

28 Staples v. Mackay (1892) 11 N. Z. R. 258. With this case com-
pare the circumstances in Santley v. Wilde [1899] 2 Ch. 474. Other
cases under the general law are given in Aust. Torr. Syst. 967, note 57.

"Macarthy v. Kelleher (1897) 16 N. Z. R. 88. See preceding note.

Sect. 3] BRITISH COLUMBIA AND HONDURAS. 275

proceedings for foreclosure, it is ordinarily too late for the mort-
gagor to redeem or obtain a discharge except on terms of repaying
the whole amount secured by the mortgage. It is however expressly
provided in Manitoba 31 that relief may be given at any time before
" sale or foreclosure." This means apparently before the execution
of a binding contract of sale by the mortgagee,32 or before final
order of foreclosure;33 in Saskatchewan the statute itself has the
words "before sale or before the grant of a final order of fore-
closure," and the enactment applies equally whether foreclosure
proceedings are in the registry or by action in court.84
The six months' notice rule is not always in force.35

SECTION 3 MORTGAGES IN BRITISH COLUMBIA AND BRITISH

HONDURAS.

BRITISH COLUMBIA.

The statutes in British Columbia seem to leave it open to mort-
gagees to employ any form of mortgage they choose, and incidental
references to foreclosure and reconveyance * seem to imply that the
use of mortgages in English form (that is, by conveyance and pro-
viso for redemption) is at least contemplated and permissible. A
company's debenture has been held registrable, though this would
not be so in other jurisdictions.2 A " charge " (which includes
mortgage) may however be created otherwise than by an instru-
ment under seal, and instruments tendered for registration may
usually be in duplicate; but attestation by at least one witness is
essential for instruments requiring registration, and the provisions
prescribing methods of proof of execution are more elaborate than
in any other jurisdiction.3 On the whole, notwithstanding the ab-
sence of any prescribed form of statutory mortgage, and the ab-
sence of any enactment conferring express powers, rights or reme-
dies on the mortgagee, a registered mortgage is much the same in
its incidents and operation as in the other twenty jurisdictions. It

"It 1913, s. 126.

»See Salttnan v. McColl (1910) 12 West. R. 146, 14 ib. 91 (Man.),
though there was no acceleration clause in question.

** Wasson v. Harker (1912) 22 West. R. 609 (Sas.), under the repealed
s. 93 (10) of Sas. 1909 (now Sas. 1917, s. 118), which had "sale or
foreclosure " only, as in Manitoba.

34 Sas. 1917. s. 115 : Wasson v. Harker, supra. McGregor V. Hamstreet
(1912) 20 West. R. 642 (Sas.) is thus overruled; see Can. Torr. Syst.
348.

• Manitoba— Mortgage Act (R. S. 1913, c. 130), s. 13. See Aust.
Torr. Syst. 942; Scotfs Torr. Syst. Mort. 84.

^ee B. C. 1911. ss. 53, 104 (3).

'In re Land Registry Act (1904) 10 B. C. R. 370. Contrast Robison
v. Coal Cliff Co. (1891) 12 N. S. W. Eq. 293, 305.

»B. C. 1911. ss. 2, 51, 77-88, 107B.

276 MORTGAGES, &c. [Gh. vi.

is, though an interest in the land, an interest by way of charge
only,4 as appears by reference to the principal sections relating to
mortgages. The statutory permission to charge land by means of
an instrument under hand only does not make the instrument oper-
ate as a deed apart from registration,5 though when registered it
would seem to have the same effect as if under seal.

The definition 6 of " charge/' " mortgage," " mortgagee," and
" mortgagor," shew that the statutes do not contemplate the regis-
tered ownership or " fee simple " of the land being vested in the
mortgagee, but that a mortgage shall operate by way of charge
only. " Charge " is defined as " any less estate than the fee sim-
ple," including " mortgage." " Mortgage " is defined as " any
charge on land created for securing a debt or lien." " Mortgagee "
is " the owner of a mortgage registered under this Act." " Mort-
gagor " is " the owner of land, or of an estate or interest in land,
pledged as security for a debt."

The sections governing the formalities of registration 7 provide
for official scrutiny and approval of instruments tendered for
registration, particular methods of attestation and proof of execu-
tion, relation of time of registration back to time of tender, pro-
duction of the certificate of title in the owner's possession. Other
sections contain enactments providing for the deposit of the certi-
ficate of title at the registry during the currency of the mortgage,
some examination of the title of the applicant for registration even
when the title of the registered owner is not fully warranted, the
necessity for registration of all instruments in order to vest any
interest in the land, the effect of registration as notice and as con-
ferring priority and a prima facie title.8 In particular, registra-
tion of a charge is notice of the charge and its contents to persons
dealing with the land (s. 72). Mortgages by companies under the
Companies Acts are by those Acts directed to be registered specially
in addition to being registered at the land registry, but registration
at the land registry will save the security from being " void " a.=
unregistered.9

4 The nature of the mortgagee's interest is discussed in Re Mandcville
[1917J 1 W. W. R. 1522 (B. C).

'•Dinsmore v. Philip [1918] 1 W. W. R. 405 (B. C).

8B. C. 1911, s. 2. 7B. C. 1911, ss. 76-88, 170.

8 B. C. 1911, ss. 20A, 29, 34-35A, 72, 73, 104-106, 169. As to examina-
tion of the title of the mortgagee applying for registration, see In re Shaw
(1915) 32 West. R. 85. As to necessity for registration, see Howard v.
Miller [1915] A. C. 318; s. 74 (there referred to) is now B. C. 1911, s.
104.

9 Companies Aet (R. S. 1911, c. 39). s. 102, as amended by 1916, c.
30, ss. 4, 5. Dalton v. Dominion Trust Co. [1918] 3 W. W. R. 42, seems
to have been decided without regard to the amending Act, and is contrary
to an Australian decision : see note 40 on p. 227 ante.

Sect. 3] BRITISH COLUMBIA AND HONDURAS. 277

The interest of the registered mortgagee is (exactly as in the
Australian statutes) one of the exceptions to the warranty of title
to the land conferred on the owner of the land by registration, and
(where the owner of the land is registered with fully warranted
title) a registered mortgagee is protected against any defect aris-
ing through fraud or error in a previous registration; the right tj
indemnity for loss is also framed on the Australian model, and so
would include a mortgagee's interest in its scope.10

Mortgages may be discharged by their cancellation being marked
on the register, and this cancellation releases the land from the
charge and (when necessary) operates as a reconveyance.11

The mortgagee has the ordinary remedies of a mortgagee of
unregistered land, though the power of sale and right of foreclosure
are for the most part only incidentally referred to in the statutes.12
Prior to the year 1917 a mortgagee did not lose his right to proceed
on his personal remedy under a judgment against the mortgagor,
merely because he became (through foreclosure) the registered
owner of the land.13 Now, his registration as owner with fully
warranted (or " indefeasible ") title extinguishes the mortgagee'?
right to recover under the covenants for payment, or even under ;•
judgment or other collateral security 14 — thus going further than
the legislation on this point in Victoria (ante, p. 240) ; but until
his final registration as owner the mortgagee does not re-open the
foreclosure merely by proceeding ineffectively under a judgment.

BRITISH HONDURAS.

Xo express provision for the creation or registration of mort-
gages is made in the British Honduras registration statute, and
they are only referred to incidentally.15 " Incumbrance " is de-
fined as (inter alia) " any legal or equitable mortgage in fee or for
any less estate." Provision is made in very general terms for reg-
istration of important " matters relating to registered land " ; also
for protection by caveat of " any unregistered estate or interest," and
it is contemplated that a " mortgage " may be such an interest and
so require protection by caveat.

" B. C. 1911, ss. 25A, 124, 126.

11 B. C. 1911, ss. 148, 153, 156, 157.

UB. C. 1911, s. 104 (3).

M Scottish Temperance Life Ass. Co. v. Vancouver Dist. Registrar
[1917] 3 W. W. R. 30. Contra in Australia: Fink v. Robertson (1907)
4 C. L,. R. 864. But see ante, p. 240.

14 B. C. 1911. s. 14A. amendment under 1917 Act.

15 B. H. 1914, ss. 1. 36; sch. A. r. 9 ; sch. D, rr. 1. 12, 13.

278 MORTGAGES, dc. [Ch. vi.

It seems clear that even a " mortgage in fee " would not vest the
registered ownership of the land in the mortgagee, but would oper-
ate by way of charge only. The mortgagee would, apparently, have
the same rights and remedies as a mortgagee in British Columbia.
But in strict theory, unless the mortgage itself be entered on the
register, the mere protection by caveat will constitute the mortgage
an equitable security only, with such advantages as may be derived
from the caveat under the doctrine of notice.

SECTION 4 — EQUITABLE MORTGAGES.
SUB-SECTION 1 MORTGAGE BY DEPOSIT OF CERTIFICATE OF TITLE.

In this section, not only will the twenty jurisdictions dealt with
in the preceding section be included, but also the remaining two —
British 'Columbia and British Honduras — which were omitted by
reason of their statutes making no provision for statutory mort-
gages. The present section will therefore be concerned with all
twenty-two jurisdictions.

The subject of equitable interests in general has been dealt with
in Chap. V, ante, pp. 153-155. It has been seen that equitable inter-
ests in registered land may be created, and that these will, as between
the parties, be governed by the same principles as equitable inter-
ests in unregistered land.1 The present sub-section is concerned
with equitable mortgages over registered land constituted by the
deposit (with or without a written document) of the owner's certifi-
cate of title with the creditor; these are recognized as valid securi-
ties in most jurisdictions.2

The general principle on which the recognition and effect of
these equitable mortgages rest is that the owner's certificate of title
— the document in his possession which is practically a transcript of
entries on the register — is similar in value and legal effect to title
deeds of unregistered land which is held by conveyance and posses-
sion. The important question is : How far does this similarity ex-
tend ? Properly speaking, the certificate of title is not a muniment of
title at all. The owner's title to his land rests ultimately on the reg-
ister, which is kept in official custody at the registry.3 The certificate

1 Typical illustrations are: Richards v. Jones (1865) 1 S. A. R. 167;
Barry v. Heider (1914) 19 C. L. R. 197; Tietyens v. Cox (1917) 17 R R.
(N. S. W.) 48. In the first-named case the analogy of copyholds was
relied on.

* New Zealand is the one definite exception. On the other hand, these
mortgages by deposit are expressly validated by statute in East Africa and
Uganda (ante, p. 18).

8 This is the principle of the decision in Hall v. Commercial Bank
(1896, 22 V. L. R. 561), and is also illustrated by decisions on registered

Sect. 4] EQUITABLE MORTGAGES. 279

of title (in the sense here used) is however prima facie evidence of
the owner's title, and of the contents of the register, and is so far
of the nature of a document of title that it must as a rule be pro-
duced whenever fresh entries have to be made on the register.4 The
limited extent of its munimentary character is shewn by the provi-
sions made in the various statutes for registering transactions with-
out its production, and for replacing it by another copy.

In some jurisdictions the statutes explicitly provide for equit-
able mortgage by deposit, in others any such provision is .merely
implied, and in others again the statutes are quite silent on the
subject. In some jurisdictions the want of statutory enactment
has been supplied by judicial decision.

In England these transactions are placed on a definite footing
by statute and ancillary rules.5 The owner is empowered to " create
a lien on the land " — also referred to as a " mortgage by deposit " —
and this " lien " is to be " equivalent to a lien created by the deposit
of title deeds ... by an owner entitled . . . for his own benefit." A
similar lien may be created on a mortgage. The creditor or deposi-
tee may give written notice to the registrar, and this notice is to
" operate as a caution." The insertion, in the above-quoted enact-
ment, of the words u for his own benefit " makes it clear that the
ordinary rule will not always apply, under which the person taking
such a security gets no better title than the depositor himself had/'
In no other jurisdiction is it made clear that the deposit is to have
the effect of a deposit by a beneficial owner of bis own title deeds.

In Ireland and Ontario 7 the deposit of the owner's certificate
of title " for the purpose of creating a lien " is made equivalent
merely to " a deposit of the title deeds of " land — or, in Ireland, of
a u charge " — thus leaving open the question whether a depositee
from a trustee could get priority over the cestui que trust. The

instruments executed in duplicate, such as: Ivey v. Commrs. of Taxation
(1903) 3 S. R. (N. S. W.) 184, 189; Toronto General Trusts Corp. v.
Rex [1917] 1 W. W. R. 823 (Al.), affd. 56 Can. S. C. R. 26, citing Aust.
Torr. Syst. 761, and now affd. by P. C. [1919] A. C. 679.

4 British Honduras is the only one of the twenty-two jurisdictions in
which no provision is made for producing the owner's certificate of title or
its equivalent at the registry upon registration of transactions with the land.

«Eng. 1897, ss. 6 (8), 8 (6) ; 1903-8 Rules, rr. 243, 251: Own. &
Inc. 132-134, 205-207; Br. & Sb. 320. The depositeee's interest, though
statutory and in that sense a legal interest, is still to be classed as equitable
— as being defeasible, and the statement on this point in Own. & Inc. 207
should be corrected.

•See for instance Perham v. Kempster [1907] 1 Ch. 373, 380, a caso
of a trustee depositing deeds of the trust property as security for his own
debt.

T I. 1891, s. 81 (5) ; Bro. & Gl. 62, 158. 187. On. 1914. s. 92.

280 MORTGAGES, &c. [Ch. vi.

certificate of title must be a real document of title, and not a mere
copy of the original when the latter is still in existence.8

To the same effect as the Irish and Ontario enactments are
those of Queensland, South Australia, and Papua,9 where " an equit-
able mortgage or lien " (in South Australia " an equitable mort-
gage ") may be created by deposit of any " instrument of title," and
this is to be equivalent to a " deposit of title deeds " of unregis-
tered land. In Queensland and Papua the " equitable mortgagee
may lodge a caveat," but this seems to be implied in South Aus-
tralia. Under these enactments the equitable mortgagee is treated
as entitled to the same remedy as under an ordinary deposit of
title deeds, namely, foreclosure by means of a conveyance of the
land by the debtor to the creditor.10 The only other jurisdiction
in which the statutes refer to " title deeds " is British Honduras,
and there the certificate given to a transferee " may be dealt with
and used as any title deeds, conveyances, or assurances may be dealt
with and used;"11 this seems to have the same meaning, and to be
subject to the same ambiguity, as the enactments in the above-named
five jurisdictions — Ireland, &c.

Fiji, Federated Malay States, and Leeward Islands 12 are the
only other jurisdictions in which security by deposit of certificate
of title is expressly authorized by the statutes. In Fiji, " an equit-
able mortgage or lien," in Federated Malay States " a lien," and \v.
Leeward Islands " an equitable mortgage," may be created by the
deposit, but no reference is made to any analogy of title deeds, and
the rights and remedies of the depositee are stated in so many
words. The equitable mortgageee may' enter a caveat, and after
obtaining judgment for the amount due may (in Fiji and Feder-
ated Malay States) have an order for sale of the land. In Leeward
Islands priority is expressly made to depend on the date of entering
the caveat, and after judgment the equitable mortgage is * con-
verted into a mortgage " by a mortgage in the creditor's favour be-
ing' actually registered ; the creditor is thus placed in the position
in which he would have been had he taken a statutory mortgage in
the first instance. In Fiji and Federated Malay States it seems to
be intended that the caveat — " to prevent all dealing with the land "
— should not be allowed to remain indefinitely on the register, but
that the equitable mortgagee should, after entering his caveat, at

8 National Bank v. Diffely [1910] 1 I. R. 271, 275.
9Q. 1877, s. 30; S. A. 1886. s. 149; P. 1913, s. 58.
"Conolly v. Noone [1912] S. R. Q. 70.
UB. H. 1914, s. 31.

"Fi. 1876 (1906), s. 109; F. M. S. 1911, s. 80; L. Is. 1886 (1914),
ss. 59-63. Innes F. M. S. 35.

Sect. 4] EQUITABLE MORTGAGES. 281

once proceed to enforce his rights.13 The right to enforce the lien
in these two jurisdictions also depends on the personal obligation
being still in existence.14

In New South Wales, Tasmania, Victoria, Western Australia,
Jamaica, Trinidad-Tobago, and Manitoba, the statutes make no
express provision for security by deposit, but the validity of such a
security is implied by the enactments which permit of registration
under exceptional circumstances without production of the certifi-
cate of title; before this production can be dispensed with and reg-
istration effected, formal evidence must be furnished that the mis-
sing certificate of title has not been " deposited " by way of security,
and the proposed registration must be advertised.15 The validity
of equitable mortgages by deposit of certificate of title in these jur-
isdictions has been amply established by judicial decision,16 though
the cases are not all consistent as to the degree of validity. The
better opinion seems to be, on principle and the balance of au-
thority', that the certificate of title, though not strictly a muni-
ment of title, is yet such a document of title relating to the land
that it is to be treated as an actual title deed for the purpose of
implying an agreement to charge the land in favour of the deposi-
tee, the charge conferring the same remedies as a deposit of ordi-
nary title deeds. There must be an actual deposit of the document
into the possession and control of the creditor, or a written memor-
andum of charge — a mere order to another person to deliver the
document to the creditor is not sufficient.17

In Saskatchewan, Alberta, and Xorth-West Territories, no
mention is made of security by deposit, and the enactments which
(following Australian models) provide for registration without pro-
duction of certificate of title omit all reference to the possibility of

" Wilson v. Bank of New Zealand (1891) -Udal's Fiji R. 259, 263.

uAlagappa Chetti v. Perianayagam (1908) Innes F. Iff. S. 117.

MN. S. W. 1900, s. 38 (3) : Tas. 1862. s. 93; V. 1915. s. 78; W. A.
1893. s. 74; J. 1888, s. 122; Tr. 1902, s. 126; Iff. 1913 s. 60. These
enactments were relied on in In re Nathan (1863) 1 S. A. R. 166 (repealed
South Australian section) ; London Chartered Bank v. Hayes (1871) 2
V. R. 104; Alexander v. Simpson (1903) Jamaica, unreported. And see
Aust. Torr. Syst. 786-788.

16 See preceding note. Other cases are: Patchell v. Maun sell (1881)
7 V. L. R. 6; Plumpton v. Plumpton (1886) 11 V. L. R. 733;
Re Elliott (1886) 7 N. S. W. 271; Rooison v. Coal Cliff Co. (1891)
12 N. S. W. Eq. 293. 306; Hall v. Commercial Bank (1896) 22 V. L. R.
561 ; Tolley & Co. V. Byrne (1902) 28 V. L. R. 95 : Charters V. Cosmopolitan
Land Banking Co.. ib. 251; LasceUes V. Benlisa (1912> 2 Tr. & Tob. 181,
citing Aust. Torr. Syst. 787.

"Colonial Bank V. Riddell (1893) 19 V. L. R. 280: Hall v. Com-
mercial Bank (1896) 22 V. L. R. 561.

282 MORTGAGES, dc. [Ch. vi.

a missing certificate of title having been deposited as security for
money.18 It has however been held that these statutes are to be
construed like the Australian statutes on this point, and equitable
mortgages by deposit of certificate of title or other instrument of
title have been held valid as in Victoria, New South Wales, &c.19

British Columbia differs from all other jurisdictions. Equitable
mortgages merely by deposit of title deeds or certificate of title
seem to be recognized as in other jurisdictions.20 No " instru-
ment " until registered is effectual to " pass any estate or interest
either at law or in equity," and an equitable mortgage by " deposit
of title deeds and memorandum thereof " may not be registered.21
But the interest created by a deposit of certificate of title without
writing would seem to be untouched by these enactments,22 and
could presumably be protected by caveat as in other jurisdictions,
though only " by leave of the registrar,23 and the depositee would
at least be able to delay registration of adverse interests, even if his
equitable mortgage by deposit were not of the same juridical validity
as elsewhere.

The last jurisdiction to be referred to is New Zealand. There
the equitable rule, by which security can be given over land by a
mere deposit of documents of title, has been definitely abrogated as
part of the local law, and this abrogation appears to extend to reg-
istered land. It is enacted by a general statute that land is not to
be " charged or affected, by way of equitable mortgage or otherwise,
by reason only of any deposit of title deeds," with or without a
written memorandum, and this statute is " not to conflict with "
the registration statutes.24 The enactment in the registration stat-
ute itself, relating to registration without production of certificate
of title in case of loss, &c, does not contain the reference (found
in the Australian statutes) to the possibility of the missing certifi-
cate of title being " deposited " as security.23 In New Zealand,

18 Sas. 1917, s. 69 ; Al.. 1906, s. 123 ; Can. 1906, s. 164.

"Fialowski v. Fialowski (1911) 19 West. R. 644 (Al.) ; Acme Go. v.
Huxley (1912) 20 West. R. 133 (Al.). These cases are stated in Can.
Torr. Syst. 275-278.

20 An illustration is Hudson's Bay Co. v. Kearns (1896) 3 B. C. R.
330, 4 B. C. R. 536.

21 B. C. 1911, ss. 33, 104; Howard v. Miller [1915] A. C. 318, 326.

22 The principle is that when a statute refers to interests in land
created by an " instrument." interests not created by any instrument are
excluded: White v. Neaylon (1886) 11 A. C. 171; National Bank v.
Diffely [1910] 1 I. R. 27L » B. C. 1911, s. 62.

* Property Law Act 1908 (No. 152), ss. 1 (4), 63; N. Z. 1915, s. 1 (2) ;
Martin's Prop. Law Act 1905 (N. Z.) 109. A case under the general
enactment is Beckett v. District Land Registrar (1909) 28 X. Z. R. 788.

28 N. Z. 1915, s. 40.

Sect. 4 J EQUITABLE MORTGAGES. 283

then, it would seem that no equitable mortgage could, properly
speaking, be created by deposit of certificate of title, and the de-
positee's interest, not being an actual interest in the land, would
perhaps not be susceptible of protection by caveat;26 but the de-
positee would seem to have the right to hold the certificate of title.
by virtue of agreement to that effect, and thus delay the registration
of adverse rights.

The law as to the nature of the interest conferred by the deposit,
and as to the rights and remedies of the depositee, is thus fairly
uniform in the twenty-two jurisdictions; exceptions to this uni-
formity occur principally in the cases of England, Leeward Islands,
British Columbia, and Xew Zealand, as stated above. The docu-
ments that may by their deposit create a security over the land in-
clude, not only certificates of title (land certificates, &c), but also
registrable instruments not yet registered, such as transfers, mort-
gages, &c.27

The principal feature of these securities by deposit is that they
are purely equitable and, though authorized (expressly or im-
pliedly) by the statutes, are not registrable so as to become legal
interests, and therefore have no warranty of title accorded to them.
Like other equitable and unregistrable interests, they can (except
perhaps in New Zealand) be protected by caveat, and their priori-
ties inter se and in relation to registered interests will be governed
by the same considerations as govern other equitable interests in
registered land.

Except in Xew Zealand, these securities are to be classed as
actual interests in the land. They therefore (though unregistered
and with no warranty of title) carry with them the right to com-
pensation or indemnity if lost (wholly or in part) to their owner
through wrongful registration of another interest which is made
indefeasible by the statutes.28

Though in England these securities are equitable, as in other
jurisdictions, there is one important distinction between the English
and other statutes, and this distinction serves to emphasize the
purely equitable nature in other jurisdictions of the interest of the
depositee. In England (ante, p. 279) the deposit has the same
effect as a deposit of title deeds of unregistered land by an owner
entitled for his own benefit. Thus, if the registered owner were in
fact a trustee, the depositee's title would not necessarily be affected

* This view receives support from a Malay case : Sokalingam Ghetti v.
Mohamed Maidin (1912) Innes F. M. S. 197.

" Plutnplon v. Plumpton (1885) 11 V. L. R. 733; Acme Co. v. Huxley
(1912) 20 West. R. 133 (Al.) : Barry v. H eider (1914) 19 C. L. R. 197.

28 Tolley d- Co. v. Byrne (1902) 28 V. L. R. 95.

284 MORTGAGES, dc [Cn. vi.

by that circumstance, and he might be entitled in priority to the
cestui que trust. In other jurisdictions it is difficult to say con-
iidently whether the priorities in such a case would be the same as
in England. The better opinion seems to be that the priorities would
not be the same, and that the de facto trustee would confer no better
title on the depositee than he himself had as against his cestui que
trust. One case which conflicts with this view seems to rest on
insufficient grounds.20 It was held that the depositee of a certifi-
cate of title from a person who had become registered owner by
means of a forged transfer was entitled in priority to the rightful
owner whose name had been forged; the case of Tolley & Co. v.
Byrne 30 was relied on. That case however had nothing to do with
competing claims to priority, but only with compensation for loss.

Though the general rule is that the depositee need not (except
in Leeward Islands) enter a caveat or do anything actively to pro-
tect his equitable mortgage as against other equities,31 his rights
have sometimes been postponed to an interest later in date.32 On
the other hand, superior diligence in entering a caveat has some-
times given the depositee priority over an unprotected interest of
earlier date.33 The depositee's rights may of course be lost by the
registration of an adverse interest.34

In most jurisdictions the proper remedy of the equitable mort-
gagee by deposit of certificate of title appears to be foreclosure,
effected by an order of the court for the land to be transferred by
the debtor to the creditor free from any right of redemption ;85 if a
proper transfer cannot be had, a vesting order may be made.36 In
Fiji and Federated Malay States sale is expressly made the remedy,
and in Leeward Islands the security is " converted " into a legal
statutory mortgage {ante, p. 280). It has indeed been held in
one case that the equitable mortgagee is only entitled to judgment

"Fialowski v. Fialowski (1911) 19 West. R. 644 (Al.), stated in Can.
Torr. Syst. 275.

80 (1902) 28 V. L. R. 95, cited above.

31 Re miiott (1886) 7 N. S. W. 271; Tolley & Co. v. Byrne, supra;
Wilson v. Bank of New Zealand (1891) Udal's Fiji R. 259, 263.

31Patchell v. Maunsell (1881) 7 V. L. R. 6. This case was not
cited in Re Elliott, supra. And see Robison v. Coal Cliff Co. (1891) 12
N. S. W. Eq. 293, 306.

33 Conolly v. Noone [1912] S. R. Q. 70.

^Patchell v. Maunsell, supra; Tolley & Co. v. Byrne, supra.

38 Hall v. Commercial Bank (1896) 22 V. L. R. 561; Charters v. Cos-
mopolitan Land Banking Co. (1902) 28 V. L. R. 251; Conolly v. Noone,
supra.

"British and Australasian Co. v. South Queensland Pastorate Co.
(1894) 6 Q. L. J. 83; Wilson v. Brown (1896) 7 Q. L. J. 16. Ante, p. 257.

Sect. 4] EQUITABLE MORTGAGES. 285

as in a personal action for principal and interest, and not to a de-
claration of his rights as mortgagee,37 but this is quite opposed to
the current of decisions.

The statutory method of foreclosure (as in Xew South Wales,
&c.) has no application to an equitable mortgage by deposit of cer-
tificate of title.38

There seems to be no reason why an equitable mortgagee by
deposit should not have the ordinary remedies of an equitable mort-
gagee under the general law; for instance, he would probably be
entitled to have a receiver appointed.39

SUB-SECTION 2 OTHER EQUITABLE MORTGAGES.

Equitable mortgages by deposit of certificate of title have a cer-
tain degree of recognition in all jurisdictions, except New Zealand
(ante, p. 282), and are specially authorized by statute in some.
Other equitable mortgages have no special recognition accorded
them, but stand on the same level as other equitable interests which
(being unregistered) require protection by caveat (ante, p. 172).
In three jurisdictions — British Columbia, Leeward Islands, and
Federated Malay States — an equitable mortgage stands on a lower
juridical level than elsewhere, being a contractual right rather than
an actual charge on the land.

An equitable mortgage is one that falls short of being a com-
plete legal security such as is effected by the registration of a mort-
gage in due form. The essential feature of an equitable mortgage
of registered land is that, being unregistered, it is liable to be dis-
placed by another interest, but it may be in any form which suffici-
ently indicates the intention to charge the land and make it security
for money.

In some jurisdictions, owing to the possibility of registration
without the title to the land being fully warranted, particularly
where " off register " transactions are expressly permitted, the tech-
nical legal estate as it exists apart from registration has still to be
taken into account ; here there may be a distinction between a mort-
gage in the form of an English legal mortgage, and one purporting
to be by way of charge only.1 The jurisdictions referred to are:

"Lascelles v. Benlisa (1912) 7 Tr. & Tob. 181. Ante. p. 178.

"Charters V. Cosmopolitan Land Banking Co., supra; Tietyens v. Cox
(1917) 17 S. R. (N. S. W.) 48, 55.

"See Union Bank of Canada v. Eugen [1917] 2 W. W. R. 395 (Sas.).

1 Capital and Counties Bank v. Rhodes [1903] 1 Ch. 631. 657. See
Own. & Inc. 143 et seq., 233.

286 MORTGAGES, dc [Ch. vi.

England, Ireland, Ontario — " off register " transactions being ex-
pressly permitted in these three — British Columbia, and Leeward
Islands. In the majority the old technical legal estate is in prac-
tice merged in the registered ownership, so that any conveyance of
it would operate by way of contract only, or at most as the convey-
ance of an equitable interest or right.2 But in any case no convey-
ance of any technical legal estate would affect the registered owner-
ship as such; in most jurisdictions a mortgage in English form
would not be accepted for registration at all,3 and if registered
would take effect as a charge only and not as an assurance of the
registered ownership.

There is some difference with respect to the juridical value of an
equitable mortgage in British Columbia, Leeward Islands, and
Federated Malay States, as compared with other jurisdictions,
though this difference will not often issue in any practical result,
and it will be sufficient to state it here once for all. In each of
these jurisdictions there is a special' enactment4 which in terms
goes further towards making unregistered instruments ineffectual to
create actual interests in the land than do the more general enact-
ments, under which no interest passes until registration but which
have been construed in such a way as not to prevent an equitable
interest passing. Under these special enactments, an instrument
which would elsewhere be a valid equitable mortgage would merely
confer contractual rights — among these a right to specific perform-
ance. Only under special circumstances — illustrated by the cases
cited in the footnote — would the difference between such a con-
tractual right, and an actual equitable interest, become apparent for
practical purposes. The difference however does exist, and must
be borne in mind.

Equitable mortgages have been constituted by an ordinary un-
registered deed, such as would be used in connexion with unregis-

*McEllister v. Biggs (1883) 8 A. C. 314; Allison v. Petty (1899) 9
Q. L. J. 125; Finucane v. Registrar of Titles [1902] S. R. Q. 75; Macindoe
v. Wehrle (1913) 13 S. R. (N. S. W.) 500; Davis v. McConochie (1915)
15 S. R. (N. S. W.) 510; Brown v. Abbott (1908) 5 C. L. R. 487.

* Special provision is made for registering informal instruments under
exceptional circumstances in South Australia, Papua, and Manitoba: S. A.
1886, s. 247 ; P. 1913, s. 126B ; M. 1913, s. 91. A mortgage was rejected
in: Re Spokane (1910) 15 West. R. 637 (Al.) ; Re North-West Telephone
Co. (1909) 12 West. R. 300 (Sas.). A lease was rejected in Crowley v.
Templeton (1914) 17 C. L. R. 457, and see Shore v. Green (1890) 6
Man. R. 322.

4B. C. 1911, ss. 33, 104; Howard v. Miller [1915] A. C. 318, 326. L. Is.
1886 (1914), s. 6 (2) ; In re Smith [1916] 2 Ch. 206. F. M. S. 1911, s. 5;
Lohe Yew v. Port Swettenham Rubber Co. [1913] A. C. 491, 500; Haji
Abdul Rahman v. Mohamed Hassan [1917] A. C. 209.

Sect. 4] EQUITABLE MORTGAGES. §87

tered land,5 by instruments purporting to effect a charge other than
by way of mortgage, in statutory form or otherwise,6 by informal
documents of lien,7 by mere agreement to give a mortgage,8 by mort-
gage in statutory form but unregistrable by reason of some mistake
or informality,9 by absolute transfer in statutory form held unregis-
tered.10

In all these cases the interest of the equitable mortgagee was
susceptible of protection by caveat.11 To be allowed such protection
the interest must be conferred by an instrument which the person
executing it has a right to execute ; a caveat will give no additional
validity to an instrument which cannot legally be executed.12 In
some jurisdictions — Manitoba, Saskatchewan, Alberta — certain
transactions are made void as security on land, and these cannot be
protected by caveat.13

Since equitable mortgages by deposit of certificate of title are
held valid even in jurisdictions whose statutes do not expresssly
sanction them, there seems no reason on principle why the interest
under any other equitable mortgage should not be considered to be
of the same nature*, carrying with it the same rights and remedies.14
If the two kinds of equitable mortgage are on the same footing, any
equitable mortgagee suffering loss through wrongful registration of
another person might under some circumstances be entitled to

'Butler v. Fairclough (1917) 23 C. L. R. 78; In re Smith [1916] 2
Ch.206 (L. Is.) ; Macdonald (John) & Co. v. Tew (1914) 32 O. I* R. 262;
Keogh V. Registrar-General (1918) 24 C. L. R. 413.

'Imperial Elevator Co. v. Olive (1914) 29 West. R. 339 (Sas.) ; Coast
Isumber Co. v. McLeod, ib. 357 ; Bretcry v. Cotcie [1919] 2 W. W. R. 388
(Sas.).

T Smith v. American Abell Engine Co. (1907) 6 West. R. 179 (Man.) ;
Sawyer and Massey Co. v. Waddell (1904) 6 Terr. R. 45.

8 Yockney v. Thompson (1913) 50 Can. S. C. R. 1 ; In re Registration
of Caveat (1908) limes F. M. S. 114.

» Rogers Lumber Co. v. Smith (1913) 23 West. R. 946 (Sas.) ; Sheath
v. Hume (1903) 23 X. Z. R. 221.

"Giace v. Kuebler [1917] 1 W. W. R. 1213 (Al.), affd. 56 Can.
B. C. R. 1.

u See Aust. Torr. Syst. 1036, for other cases of mortgage interests pro-
tected by caveat ; the observations there made have been approved in more
tban one of the Canadian cases above cited.

aRe Gaar Scott Co. (1909) 12 West. R. 245 (Sas.) : Re International
Harvester Co. or Re Ebbing (1909) 11 West. R. 29 (Sas.). These and
some other cases are explained or overruled in Imperial Elevator Co. v.
Olive (1914) 29 West. R. 339 (Sas.).

tt Manitoba— Lien Notes Act (R. S. 1913. c. 115), s. 4. Alberta —
Charges on Land Act, 1910 (2nd Sess.) c. 5. Saskatchewan — Sas. 1917, ss.
99, 129. 130; Gilbert v. VUerich (1911) 17 West. R. 157 See Can. Torr.
Syst. 370.

"See particularly Yockney v. Thompson (1913) 50 Can. S. C. R. 1,
affg. 22 West. R. 863, 25 ib. 602 (Man.) ; Imperial Elevator Co. v. Olive
(1914) 29 West. R. 339 (Sas.).

288 MORTGAGES, Ac. [Ch. vi.

indemnity as in the case of a mortgagee by deposit {ante, p. 283)
in those jurisdictions in which provision is made for payment of
indemnity.

The remedies of an equitable mortgagee (otherwise than by
deposit) are the subject of judicial decision chiefly in the Canadian
courts, but these decisions appear to be applicable in other jurisdic-
tions. An unregistered or equitable mortgagee must go to the court
in order to enforce his security,15 and though apparently sale as well
as foreclosure may be had at the option of the mortgagee,16 fore-
closure by order of the court for transfer of the land would seem
the appropriate remedy, as on a mortgage by deposit {ante, p.
284). An equitable mortgagee can have a receiver appointed,17
and in general the remedies of an equitable mortgagee of unregis-
tered land are open to equitable mortgagees of registered land.18

The subject of priorities of equitable interests, inter se and in
relation to registered interests, is referred to under " equitable
interests " ante, pp. 171, 172, and " equitable mortgages by deposit "
ante, p. 284. The absence of any right given by possession of the
owner's certificate of title must often affect questions of priority.
Such questions, as regards the equitable mortgages now under con-
sideration, usually depend on the effect of entering a caveat. This
part of the subject is also referred to under " Protection by restric-
tive entry," ante} p. 189.

Although it is not the caveat, but the instrument of equitable
mortgage itself, that constitutes the interest or enforceable right of
the mortgagee, yet the removal of the caveat from the register —
even in order to substitute another security, or in consequence of
some mistake in the registry as to the effect of such removal — may
at once deprive the equitable mortgage of any priority already
gained as against a competing interest.19 And the removal of the
caveat may have this effect, in the absence of fraud, even if the
owner of the competing interest already had notice of the equitable
mortgage, or the latter would be entitled to priority independently
of the caveat.20

When the equitable mortgage is prior in date of execution to
the competing interest, and a caveat has been entered before regis-
tration of the competing interest, the equitable mortgage will usu-

15 Sheath v. Hume (1903) 23 N. Z. R. 221.

18 Imperial Elevator Co. v. Olive, and Sheath v. Hume, supra.

" Union Bank of Canada v. Eugen P9171 2 W. W. R. 395 (Sas.).

"Tictyens v. Cox (1917) 17 S. R. (N. S. W.) 48. 66; Keogh v. Regis-
trar-General (1918) 24 C. L. R. 413 (power of sale in unregistered instru-
ment).

"Rogers Lvmber Co. v. Smith (1913) 23 West. R. 946 (Sas.);
Butler v. Fairclough (1917) 23 C. L. R. 78.

2T»ion Bank of Canada v. Boulter Wauqh Lim. (1919) 58 Tan.
S. C. R. 385.

Sect. 5] NON-MORTGAGE SECURITIES. 289

ally secure priority.21 But the equitable mortgagee may be post-
poned to a purchaser, when the contract of sale was prior in date
to the equitable mortgage, and notwithstanding the protection of
the equitable mortgage by a caveat which was not brought to the
notice of the purchaser.22

A mortgage is usually protected by caveat only when it cannot
for some reason be registered. But there seems to be no substantial
doubt that even a registrable mortgage may, if the mortgagee
so desire, be the subject of a valid caveat.23

SECTION 5 — SECURITIES OTHER THAN MORTGAGES.
SUB-SECTION 1 NON-STATUTORY SECURITIES.

This sub-section includes in its scope all twenty-two jurisdic-
tions— that is, British Columbia and British Honduras as well as
others. The non-statutory securities to be here treated of are those
that are created by vesting the whole ownership of the debtor's land
in the creditor, the right of the debtor to have the land re-assured to
him being the subject of a separate agreement. The creditor be-
comes the registered owner of the land, and the defeasance agree-
ment is left unregistered. A transaction of this kind is not, hav-
ing regard to the difference between ordinary conveyancing law
and the system set up by registration of title, properly a mortgage,1
though often loosely referred to as such.2 In the absence of ex-
press prohibition in the statutes, registration of a transfer made
merely by way of security could hardly be refused, though such
refusal is said to have occurred in Queensland.3 Systems of regis-

nTockney v. Thompson, and Imperial Elevator Co. v. Olive, supra;
Coast Lumber Co. v. McLeod (1914) 29 West. R. 357 (Sas.), the Austral-
ian case of In re Scanlan (1887. 3 Q. L. J. 43) being relied on.

22 Grace v. Kueblcr (1917) 56 Can. S. C. R. 1.

n Union Supply Co.'s Case [1918] 2 W. W. R. 305 (Sas.).

1 Haji Abdul Rahman v. Mohamed Hassan [1917] A. C. 209 ; Rutherford
v. Mitchell (1904) 15 Man. R. 390. In England the Somerset House
officials refuse to treat a transfer of land made to a creditor by way of
security only as a mortgage for purposes of stamp duty ; this should be
added to the observations at p. 190 of Own. & Inc.

* Haji Abdul Rahman v. Mohamed Hassan, supra, at p. 213 quoting
from the judgments below;* Delaney V. Sandhurst Build. Soc. (1878) 5
V. L. R. 189, 194; Aust. Torr. Syst. 796. 943, 972, and Victorian cases
there cited ; Guest's Transfer of Land Act 291 ; Duffy & Eagl. Transfer of
Land Act, 404; Own. & Inc. 190; Wallace V. Smart (1912) 19 West. R.
787 (Man.); Can. Torr. Syst. 278-280, and cases there cited; Keogh v.
Registrar-General (1918) 24 C. L. R. 413.

8 Power's Real Prop. Acts, 66. The judicial observations there quoted
seem not to have been reproduced in any report of the case referred to.

R.T.L. — 19

21)0 MORTGAGES, dc. [Ch. vi.

tration under which mortgages can only be effected by means of
transfer are on a different footing altogether.4

The view that such securities are to be treated as technical mort-
gages is supported in Australasian jurisdictions by the practice in
Victoria — and litigation arising thereon — of taking security over
land in favour of building societies by means of an absolute transfer
with unregistered defeasance agreement. In other jurisdictions —
particularly the 'Canadian — this view receives support from the
circumstance that in many cases it has been necessary merely to
decide the bare fact that an absolute transfer has been made by
way of security only, and nothing turned on any distinction be-
tween mortgages of unregistered land and mortgages of registered
land. Whenever the rights of an actual mortgagee or mortgagor
are claimed and have to be decided, the differences between a true
mortgage and a transfer by way of security become apparent. It
may be that with reference to unregistered land and the general
law of mortgage, " every transaction that resolves itself into a
security is a mortgage " ;"' but this is hardly a correct statement
when applied (as is sometimes done) to transfers of registered land
by way of security. Systems . of registration of title contemplate
that mortgages shall only be created by means of a charge on the
land, duly registered, and not by a conveyance of the ownership.6
The position of a transferee, or of a mortgagee after he has fore-
closed and had the ownership of the land vested in him, may be
quite different to that of a mortgagee of unregistered land who gets
a conveyance of the legal estate.7

Whether the agreement on the part of the registered owner of
the land to re-transfer to the former owner on payment of the debt
be contained in a formal instrument of defeasance, or be merely an
informal understanding, seems to make no difference in the juridical
nature of the parties' rights. The reported cases shew instances
of each kind of defeasance agreement.8 !Nor does it seem material

* See Aust. Torr. Syst. 798, as to " conditional purchases " in New
South Wales. The position of a mortgagee (by absolute transfer) under
the Crown Lands Acts of New South Wales is further illustrated by the
case of Minister for Lands v. Jeremias (1917) 23 C. L. R. 322.

"The quotation is from Blunt v. Marsh (1888) 1 Terr. R. 126. The
land in this case was apparently registered land, though the report does
not expressly say so.

'Rutherford v. Mitchell (1904) 15 Man. R. 390; Haji Abdul Rahman
v. Mohamed Hassan [1917] A. C. 209.

7 Fink v. Robertson (1907) 4 C. L. R. 864: Colonial Invest. Go. V.
King (1902) 5 Terr. R. 371: Douglas v. Mutual Life Ass. Co. [1918] 1
W. W. R. 690 (AD— 4mt see Mutual Life Ass. Co. v. Douglas (1918) 57
Can. S. C. R. 243.

' There was no formal instrument in the following cases : Wallace v.
Smart (1912) 19 West. R. 787 (Man.) : Robinson v. McCauley (1913) 26

Sect. 5] XOX-MORTGAGE SECURITIES. 291

that the initial registration of the land has only taken place after
the assurance to the creditor has been made, the creditor thus be-
coming registered owner otherwise than by a transfer from a reg-
istered owner.9 The entry of a caveat by the debtor to protect his
rights might have important practical results, but would not alter
the essential nature of the transaction.10

In some circumstances the rights of the parties to the defeas-
ance agreement can be decided without its being necessary to define
exactly the nature of the right to receive a re-transfer of the land,
that is, whether it be an interest in the land or merely a contractual
right.11 Taking the view that the Malay case of Haji Abdul Rah-
man v. Mohamed Hassan 12 applies in other jurisdictions, the actual
decisions in the cases just cited will not be affected by the Privy
Council judgment, though this judgment by implication overrules
the dicta contained in some of these cases to the effect that the
right to a re-transfer is an actual interest in the land.

In some circumstances, again, the question of interest in land
or contractual right is vital to the decision of the case, and where
the right to a re-transfer has been held to be an actual interest in
the land, such decisions must be taken to have been overruled (on
the view above suggested) by the Privy Council judgment in the
Malay case.13

West. R. 285 (Man.) ; Vance v. Macfarland (1883) 1 Q. L. J. 134. .243:
Keogh V. Registrar-General (1918) 24 C. L. R. 413. Other cases in Can.
Torr. Syst. 278. * This happened in Vance v. Macfarland. supra.

"Sander v. Ttciga (1887. 13 V. L. R. 765) seems to be the only
ease in which the entry of a caveat is referred to.

11 Illustrations are: Vance v. Macfarland. supra; Blunt v. Marsh
(1888) 1 Terr. R. 126; McCue v. Smith (1911) 17 West. R. 145 (AI.) ;
McMillan v. Gunn (1906) 5 West R. 479 (Man.). In Sander v. Twigg
(supra) and Watson v. Royal Perm. Build. Soc. (1888, 14 V. L. R. 283)
the decisions would apparently have been the same had the right to a
re-transfer been held to be a purely contractual right. Sander v. Twigg is
stated in Aust. Torr. Syst. 796. See an article in Jurid. Rev. xxix. 162
(1917) — "Registration of Title and Contractual Rights."

12 [1917] A. C. 209. The whole ratio of the judgment delivered by
Lord Dunedin is based on the registration statute itself — " a system of
registration of title modelled on the well-known Torrens system of Australia "
— and not on any relevant peculiarities of local law. It is necessary to
point out that Malay law does differ from that of other jurisdictions in two
respects : the common law is not in force as the foundation of local juris-
prudence, and the enactment (F. M. S. 1911, s. 5) expressly prohibiting non-
statutory methods of transfer and mortgage is not contained in the majority
of other statutes. This enactment, however, only operates to make a
transaction ineffective to confer any interest in the land, and leaves it
valid as a contract: Loke Yew v. Port Swettenham Rubber Co. [1913J
A. C. 491; Haji Abdul Rahman v. Mohamed Hassan, supra.

"Illustrations are: Delaney v. Sandhurst Build. Soc. (1879) 5 V. L. R.
189; Richmond Local Board v. Victorian Perm. Build. Soc. (1890) 16
V. L. R. 845; Wallace v. Smart (1912) 19 West. R. 787 (Man.) ; Short v.
Graham (1908) 7 West R. 787 (Al.).

292 MORTGAGES, &c. [Ch. vi.

On the other hand, the Privy Council's decision has been anti-
cipated in some cases, and the right of the former owner under the
defeasance agreement held to be a merely contractual right (or at
most a possessory right), and not an interest in the nature of
ownership of the land at all.14

The rights and liabilities of the parties to a security by transfer
and defeasance resemble those of mortgagor and mortgagee in
some respects and differ from them in others. The general princi-
ple would seem to be that the defeasance agreement must be taken
to mean what it says, and that when the agreement is silent upon
any point it is not necessarily to be presumed that the ordinary
English law of mortgage applies. The parties are at liberty to
make any stipulations they please — not being prohibited by law —
and these will govern their relations. Questions of difficulty must
arise when these relations are not governed by express stipulations.
Typical questions of this sort would be : whether the creditor had a
power of sale; whether he must complete his title by foreclosure;
what is the limit of time within which the debtor is entitled to
recover the land. In some respects this kind of security resem-
bles a sale with agreement for re-purchase.15

The transaction so far resembles a mortgage that the debtor is
entitled to receive a transfer of the land on paying the creditor his
debt. This broad proposition is illustrated by cases where the
debtor has been held so entitled as against successors in title of the
creditor. Thus, where the creditor (the registered owner) has
transferred to a person who is not authorized by the debtor to re-
ceive any such transfer, the debtor can claim to have the land trans-
ferred to himself.16 The debtor would also seem to be entitled to
assign his interest or right to a transfer, by way of sale or other-
wise.17 The creditor has sometimes been treated as a mortgagee
for the purposes of local Health Acts, Stamp Acts, and proceedings
to recover the land from the debtor.18

14 Port Melbourne (Mayor) v. Permanent Savings Build Soc. (1894)
20 V. L. R. 508: Rutherford v. Mitchell (1904) 15 Han. R. 390; Robinson
v. McCauley (1913) 26 West. R. 285 (Man.).

15 A close analogy is afforded in the mortgage by conditional sale, as it
formerly existed in India, and may exist even now in Mohamedan com-
munities outside India: see Balkisheen Das v. Legge (1899) L. R. 27 I. A.
58; Mitra Law of Limitations in India (5th ed. 1911) 1193; Jour. Comp.
Leg. xvii. 205 (1917) — "Malay Mortgage by Conditional Sale."

18 Vance v. Macfarland, Sander v. Twigg, Watson v. Royal Perm. Build.
Soc, supra.

" Sander v. Twigg, Watson v. Royal Perm. Build. Soc, supra. In the
former case the debtor's interest was referred to as an " equity of redemp-
tion," in the latter as a " quasi-equity of redemption."

18 Richmond Local Board V. Victorian Perm. Build. Soc (1890) 16
V. L. R. 845; Ex p. Ballarat Land Co. (1895) 17 Aust. L. T. 43. 113;
Delaney v. Sandhurst Build. Soc (1879) 4 V. L. R. L. 273, 5 ib. 189.

Sect. 5] HON -MORTGAGE SECURITIES. 293

In each of the six Victorian cases above cited the creditors and
registered owners of the land were a building society or the trustees
of a building society, and the defeasance agreement consisted of a
formal deed with elaborate provisions as between ordinary mort-
gagor and mortgagee.19 In the Queensland case of Vance v. Mac-
farland there was no formal defeasance agreement, but a wife had
transferred her land to the creditor as securitv for her husband's
debt.

In many respects these securities differ from mortgages, and
these differences have been recognized when the interest of the
debtor has been called a " quasi-equity of redemption." Thus, a
writ of execution under a judgment against the debtor either can-
not be registered at all against the land, since there is no land stand-
ing in the debtor's name against which to register it;20 or if (as in
some jurisdictions) registration against specific land is not required,
the registration of a judgment or execution has (according to the
better opinion) no effect on the land, the debtor having parted with
all his registered ownership.21 Under local Health Acts the credi-
tor has sometimes been held to be the owner of the land and not a
mere mortgagee.22

With regard to the various periods allowed by limitation Acts
for the parties to enforce their rights, the position of the creditor
who is the registered owner of the land is in some respects superior
to that of a mortgagee. The transfer of the land to the creditor
has been held to be equivalent to giving him possession, and time
runs against the debtor from the date of the transfer accordingly.23
Moreover, the period applicable, where there is any difference, is
the period assigned by the limitation Act to actions for recovery of
land generally, and not the period assigned to actions for redemp-

" It may be assumed that the deed of defeasance was substantially in
one of the forms given in Guest's Transfer of Land Act. 291. and Duffy &
Eagl. Transfer of Land Act, 404.

w Watson V. Royal Perm. Build. Sor. (1888) 14 V. L. R. 283, deciding
the point left open in Sander v. Tvsigg (1887) 13 V. L. R. 765.

" Robinson v. McCauley (1913) 26 West. R. 285 (Man.), a decision
on appeal. Wallace v. Smart (1912) 19 West. R. 787 (Man.), in a Court
of first instance, is to the contrary effect, but (in the view here taken)
would be overruled by Haji Abdul Rahman V. Mohamed Hassan [1917]
A. C. 209 ; the decision was also based on the meaning of " land " in the
Judgments Act (R. S. If. 1913, c. 107, s. 2) and not the registration statute.

a Port Melbourne (Mayor) v. Permanent Savings Build. Soc. (1894)
20 V. L. R. 508. The statute referred to was the same as that under which
Richmond Local Board V. Victorian Perm. Build. Soc. (supra) was decided.

11 Rutherford v. Mitchell (1904) 15 Man. R. 390. This case was not
followed in Campbell v. Imperial Loan Co. (1908) 8 West R. 502, but the
land in the latter case was not registered land.

294 MORTGAGES, &c. LCii. VI.

tion by mortgagors.24 On the other hand, the creditor may be
barred after a lapse of six years (or similar period) in any personal
action against the debtor, if the actual debt is only evidenced by a
document not under seal.25

Sometimes a power of sale is expressly conferred on the creditor,
and even a verbal authority may be sufficient.26 When no express
power of sale is given, the property may be sold by the creditor as
owner without notice to the debtor.27 This o'f course assumes that
no express stipulation in the defeasance agreement has been in-
fringed ; but even if there were any such infringement, a duly reg-
istered purchaser without notice would be protected.28 It has been
said that it is immaterial (in the absence of fraud) whether the pur-
chaser has or has not notice of the debtor's claim,29 and this is sup-
ported by cases relating to other competing equitable rights, where
a caveat might have been but has not been entered, or where a caveat
has been allowed to lapse.30

It would seem that the creditor is under no necessity to com-
plete his title by taking foreclosure proceedings.31 but in any case
the statutory method of foreclosure could not be employed.32

Apart from any question under limitation Acts, it may be diffi-
cult to determine the precise limit of time within which the debtor
can enforce his right to a transfer. He may in some circumstances
not be entitled to sue the creditor for recovery of the land (assum-
ing the latter not to have parted with it) after the date (if any)

2* Haji Abdul Rahman V. Mohamed Hassan [1917] A. C. 209, where
the alternative periods were 12 years for ordinary actions to recover land
and 60 years for redemption actions.

25 Rutherford v. Mitchell, supra.

20 Robinson v. MoCauley (1913) 2G West. R. 285 (Man.).

"McMillan v. Gunn (1906) 5 West. R. 479 (Man.), relying on Oland
v. McNeil (1901) 32 Can. S. C. R. 23; and see Sander v. Twigg (1887)
13 V. L. R. 765. A contrary opinion is expressed in Wallace v. Smart
(1912) 19 West. R. 787 (Man.), but McMillan v. Gunn does not seem
to have been cited.

28 Wallace v. Smart, supra.

29 McMillan v. Gunn, supra.

30 See Union Bank of Canada v. Boulter Waugh Lim. (19191 58 Can.
S. C R. 385; Ross v. Stovall [1919] 1 W. W. R. 673 (Al.), where it was
said (following Assets Co. v. Mere Roihi [1905] A. C. 176) : " No fraud
is shewn, and consequently no ground for setting aside the certificate of
title."

,x Haji Abdul Rahman v. Mohamed Hassan, Rutherford v. Mitchell,
supra. In Wallace v. Smart (supra) it seems to have been thought that
foreclosure was necessary.

82 Rutherford v. Mitchell, supra.

Sect. 5j NON-MORTGAGE SECURITIES. 295

specified in the defeasance agreement. On the whole, it would seem
probable that (unless otherwise stipulated) time would not be re-
garded as of the essence of the contract, but that the defeasance
would be construed like a contract for the sale and purchase of
land, so that a reasonable period — not necessarily that assigned by
limitation Acts to actions for recovery of land — would be allowed
the debtor within which to assert his rights.33

SUB-SECTIOX 2 — STATUTORY SECURITIES.

This sub-section is concerned with the same twenty jurisdic-
tions as are dealt with in Sect. 2 ante, p. 205, that is, British
Columbia and British Honduras are omitted. There is the same
distinction for the present purpose between the twenty jurisdic-
tions and these other two as with respect to mortgages. Only in the
twenty is provision made for a statutory non-mortgage security.

This statutory security — in some jurisdictions called an " in-
cumbrance," in others a u charge " — is for the purpose of securing
on land payment of moneys other than such loans or debts as are
usually secured by mortgage. The word " incumbrance " in this
sense will be used as little as possible, and the word " charge " will
as far as possible be used to include all securities of this kind.1 The
distinction between a mortgage and a charge (in the sense here
used) exists in all the statutes, and is in the majority referred to
in the definition clauses.

Just as the statutory mortgage secures money by means of
charging it on the land and conferring on the creditor powers of
realization, in lieu of a conveyance of the debtor's ownership, so the
statutory charge effects, by a mere charge coupled with statutory
powers, what is effected in the case of unregistered land by the crea-
tion of rent-charges and long terms of years.2 The statutory
charge is, however, much more closely assimilated to the statutory
mortgage than are rent-charges and terms of years assimilated to
legal mortgages in fee.

The statutory charge is so similar to the statutory mortgage in
its creation and effect that it will be sufficient to refer for the most
part only to the enactments authorizing the creation of the charge,
and to point out some of the differences drawn by the statutes be-
tween the charge and the mortgage.3 Tn all the statutes the method

"See note 15, ante, p. 292.

1 As to " incumbrance " and its meanings, see Aust. Torr. Syst. 882.
968: Can. Torr. Syst. 349, 350: Own. & Inc. 108. 109. 120. 135, 205.
*See Mahoney V. Hosken (1912) 14 C. L. R. 378. 384.
* See Aust. Torr. Svst. 968-970.

296 MORTGAGES, &c. [Ch. vi.

of creating the charge is precisely the same as in the case of the
mortgage; an instrument in prescribed form is directed to be exe-
cuted and registered, and in all except the Leeward Islands statute
the direction is contained in the section that authorizes the mort-
gage.4 In some jurisdictions the land may be charged with the
payment of any " sum of money," in some with an " annuity "
only; but it must be remembered that a statutory mortgage may
quite as conveniently be used for the purpose of securing payment
of any gross sum.

In England 5 the charge may be of " any principal sum of
money with or without interest," or " an annuity or other periodical
payment " ; in Ireland,6 " money either with or without interest, and
either by way of annuity or otherwise " ; in Ontario 7 any " princi-
pal sum of money either with or without interest, or as security for
any other purpose." In these three jurisdictions there are no sepa-
rate enactments relating to charges as distinguished from mort-
gages, the statutes themselves speaking of " charge " only for the
most part, and contemplating the insertion of special provisions in
the instrument according to the purpose of the " charge." Thus,
the right of foreclosure could, in England and Ontario,8 be exer-
cised by the owner of any " charge," though of course this right
would ordinarily be excluded by express stipulation in the case of
a non-mortgage charge. In Ireland provisions of s. 44 of the Con-
veyancing Act 1881 (" annual sums ") are expressly made applic-
able to these charges, and these provisions seem also to be applic-
able in England.9

In New South Wales, Queensland, South Australia, Tasmania,
Papua, Fiji, Manitoba, Alberta, and North-West Territories,10 the
charge may be for " an annuity, rent-charge, or sum of money."
So in Saskatchewan, but adding the words " other than a debt or
loan." X1 In Victoria, Western Australia, Trinidad-Tobago, and
Jamaica,12 the charge may be for " an annuity " only, the intention

*L. Is. 1886 (1914), ss. 36, 50.

sEng. 1875, s. 22; 1897, s. 9 (3) ; 1903-8 Rules, r. 160. Own. & Inc.
122. 188-190. 215, 216; Prec. Reg. Land, 185, 186.

8 1. 1891, s. 40 (1, 5). A covenant to maintain the covenantee and
pay him an annuity was held registrable: In re Shanahan [1919] 1 I. R.
131. T On. 1914. s. 30.

8 Eng. 1875, s. 26 ; On. 1914, s. 34.

9 Own. & Inc. 122, 190.

10 N. S. W. 1900, s. 56; Q. 1861, ss. 56, 59, 60; S. A. 1886, ss. 128,
130. and 1893, ss. 2, 3 ; Tas. 1862, s. 52 ; P. 1913, ss. 46, 51. 52 ; Fi. 1876
(1906), s. 58; M. 1913, ss. 107, 122; Al: 1906. ss. 60, 62A (10) ; Can.

1906, s. 94. "Sas. 1917, s. 98 (2).

M V. 1915. ss. 145, 149 ; W. A. 1893. ss. 105, 109 ; Tr. 1902, s. 74 ; J.
1888, ss. 78, 82.

Sect. 5] NOX-MORT(tAGE SECURITIES. 297

being apparently that a gross sum should be charged or secured by
means of a statutory mortgage. In Victoria, Western Australia,
and Jamaica, and also in South Australia, the application of the
proceeds of sale by a chargee is provided for separately, and sale
by a mortgagee is kept distinct. In South Australia a charge as
well as a mortgage implies covenants for payment, &c. In Queens-
land and Papua " weekly instalments or other periodical pay-
ments " may be secured, and the remedy of foreclosure is given to
chargees as well as to mortgagees. Foreclosure is also allowed in
Manitoba, Alberta, and Saskatchewan.

New Zealand and Federated Malay States 13 resemble England,
Ireland, and Ontario in grouping mortgage and charge together in
nomenclature, the word used in the Xew Zealand statute being
" mortgage," and in the Federated Malay States " charge " ; the
different kinds of " mortgage " or ** charge " are indicated by the
difference in the prescribed forms and (in Xew Zealand) by the
definition clause (s. 2). In both the prescribed form contemplates
the charge being for a " sum of money, annuity, or rent-charge."

The Leeward Islands statute adopts an opposite procedure, and
this is the only jurisdiction in which the creation of the charge is
provided for in enactments distinct from those relating to mort-
gages. Three forms of charge are given in the schedule, securing
any sum of money, an " annuity," or payment of " instalments " ;
the remedies given to mortgagees and chargees are however grouped
together.1*

The statutory charge constitutes a burden on the ownership of
the land, of the same kind as the burden constituted by the statu-
tory mortgage, and confers on the chargee the right to receive from
the owner of the land either one or more gross sums of money, or
periodical payments of money, though in some jurisdictions gross
sums are better secured by mortgage. The introduction of the
word " rent-charge " in many of the statutes — * annuity, rent-
charge, or sum of money " — is unnecessary. Even where — as in Vic-
toria, Western Australia, Trinidad-Tobago, 'Jamaica — only an
" annuity " is intended to be secured, this annuity " is only a rent-
charge called by another name,"15 rent-charges being really "in-
terests in land which are held as security for money." ie

The, burden on the land thus created is as effective as though

*N. Z. 1915. ss. 2 (def. "mortgage"). 101. sch. 2 f. F: F. M. S.
1911. s. 43, sch. 2 f. F ii.

"L. Is. 1886 (1914), ss. 50-55, sch. B f . 9 ; ss. 71-94.

"Mahony v. Hosken (1912) 14 C. L. R. 379. 384.

"Cochrane v. Federal Commr. of Land Tax (1916) 21 C. L. R. 422.
430.

298 MORTGAGES, &c. [Ch. vi.

created by mortgage; in case of an annuity, whether perpetual or
for life or other limited period only, the chargee or annuitant ha^
a complete charge over the land for all periodical payments as they
accrue due, and for all arrears. In the event of the land being sold
and converted into a money fund, the annuitant by virtue of the
charge can claim payment (if necessary) out of the corpus of the
fund as well as out of the income.17

The statutory charge is intended to secure payment of such
sums as are ordinarily secured by settlement or gift of annuities.18
When the sum to be secured is properly a debt or loan, the statutory
mortgage is more appropriate, and as regards gross sums a mort-
gage would seem to be essential in Victoria, Western Australia,
Trinidad-Tobago, and Jamaica. Only in one jurisdiction — Sas-
katchewan 10 — is the money secured expressly required to be " other
than a debt or loan/' but apart from this enactment it seems to be
held in Canada that a transaction which is in fact a mortgage
should not be embodied in a statutory charge;20 in the case cited
the instrument was held to be unregistrable. A statutory instru-
ment of charge embodying a mortgage transaction does however
create, even in Canada, a- valid equitable mortgage that can be pro-
tected by caveat.21

That an annuity created by means of a statutory charge is
merely a security for the performance of a covenant is no objection
to the registrability of the instrument; in this way the beer cove-
nants relating to a tied public house have been secured, the periodic
sums not being payable so long as the covenants are duly observed.22

The provisions contained in the statutes for transferring mort-
gages relate also to charges.

The provisions contained in the statutes for the discharge of
mortgages in the same way include charges. But in the majority
of those jurisdictions in which mortgage and charge are distin-
guished, the enactment providing for payment of the amount due
to a public official, in the absence of the mortgagee, applies to mort-
gages only and not to charges, and a special enactment is inserted
relating to charges only; under this enactment the cessation of the
charge may be entered in the register on proof to the registry that
the " annuitant " is dead, or that the money has ceased for other

"Brown v. Abbott (1908) 5 C. L. R. 487.

18 Illustrations are: Cooper v. Strapps (1872) 6 S. A. R. 57: Brown
v. Abbott, supra; Gebhardt V. Dempster [1914] S. A. R. 287. And see
Conv. Prec. 564; Prec. Reg. Land. 185, 186.

19 Sas. 1917, s. 98 (2) ; Can. Torr. Syst. 349.
"Re Rumely Co. (1911) 17 West. R. 160 (Sas.).

■'Imperial Elevator Co. v. Olive (1914) 29 West. R. 339 (Sas.);
Coast Lumber Co. v. McLeod, ib. 357.

"Mahony v. Ilosken (1912) 14 C. L. R. 379.

Sect. 5] XOX-MORTGAGE SECURITIES. 299

reasons to be payable. The jurisdictions referred to are the seven
Australian,23 Fiji, Trinidad-Tobago, Jamaica,24 and four of the
Canadian.25 In New Zealand and Federated Malay States 2fi the
statutes contain both enactments, though in the former " mort-
gage," and in the latter "charge/' is used for both mortgage
and charge: the Malay enactment, however, omits the word
u annuitant."

SUB-SECTION' 3 — SECURITIES (XOX-MORTGAGE) IX BRITISH
COLUMBIA AXD BRITISH HONDURAS

This sub-section is concerned with British Columbia and British
Honduras only, and only with charges (other than mortgages)
corresponding to the statutory charge of the twenty jurisdictions
which form the subject of the preceding sub-sec. 2 ante, p. 295.
Securities created by transfer and defeasance are the subject of
sub-sect. 1, ante, p. 289, which includes in its scope British Colum-
bia and British Honduras as well as the other twenty jurisdictions.

BRITISH COLUMBIA.

As the British Columbia statutes make no provision for a statu-
tory mortgage, so they make none for a statutory charge. It is
contemplated that a security may be created which bears the same
relation to a mortgage as the statutory charge in other jurisdic-
tions bears to the statutory mortgage. The nomenclature is how-
ever even more confusing than elsewhere, " mortgage," " charge,"
and " incumbrance " being used in the loosest way, sometimes as
synonymous terms and sometimes by way of distinction from each
other. As in many other jurisdictions the word " incumbrance "
is also specially used for the non-mortgage security or charge here
dealt with.

The definitions of " charge " and mortgage " in the statutes *
are referred to in Sect. 3 ante, p. 276. " Incumbrance " — the
charge now under consideration — is defined as " any charge or lien
on land (other than a mortgage), or an hypothecation of such
charge or lien." "Incumbrancer" is "the owner of any land, or

MN. S. W. 1900. ss. 66. 67: Q. 1861. ss. 63, 64 ; S. A. 1886, ss. 145.
146 ; Tas. 1862, ss. 60, 61 ; V. 1915, ss. 164, 165 j W. A. 1893. ss. 125, 126 ;
P. 1913, ss. 55, 56.

MFi. 1876 (1906), ss. 73. 74; Tr. 1902. ss. 82, 85; J. 1888. ss. 97, 98.

»M. 1913, ss. 113. 125; Sas. 1917. ss. 119, 120; Al. 1906. ss. 64, 65;
Can. 1906, ss. 101, 102.

* N. Z. 1915, ss. 117. 122 ; F. M. S. 1911, ss. 55, 56.

*B. C. 1911. s. 2.

300 MORTGAGES, dc. |Ch. vi.

of an estate or interest in land, subject to an incumbrance/' and
" incumbrancee " is " the owner of an incumbrance/' In this
book (as stated in sub-sect. 2 ante, p. 295) the use of the word
" incumbrance " in this sense is avoided as much as possible.

Beyond these definitions no special reference is made in the
statutes to these non-mortgage charges. They are sometimes
bracketed with mortgages, and sometimes mortgages alone are
mentioned. Generally speaking, most provisions relating to
" charges " in the widest sense apply to these charges as well as to
mortgages, and even less distinction is made between the mortgage
and the charge than in other jurisdictions. Mortgages in British
Columbia are the subject of Sect. 3 ante, p. 275, and non-mortgage
charges in other jurisdictions the subject of sub-sect. 2 ante, p. 295.

BRITISH HONDURAS.

The only special reference in the British Honduras statute to
charge, as distinguished from mortgage, is in the definition clause.
In other respects the observations on mortgages in 'Sect. 3 ante, p.
277, apply to charges.

The registration statute,2 besides including a " legal or equit-
able mortgage in fee " in the definition of " incumbrance," also
includes in the same term " any money secured or charged on land
by trust or " order of court, and " any legacy, portion, lien or other
charge whereby a gross sum is secured," and " any annual or peri-
odical charge . . . repurchasable on payment of a gross sum," anol
" any arrear remaining unpaid of any annual or periodical charge
for payment of which " sale " might be decreed by the Supreme
Court."

Any such charge as above referred to could of course be created
by any ordinary instrument, just as a mortgage could be created by
an ordinary instrument. Reference may be made to Sect. 3 ante,
p. 275, and (as to non-mortgage charges in other jurisdictions) to
sub-sect. 2 ante, p. 295.

2 B. II. 1914, s. 1.

Sect. 1] TRANSFER ON SALE. 301

CHAPTER VII— SALE, TRANSFER, LEASE.

SECTION 1 — TRANSFER ON SALE.
SUB-SECTION 1 — CONTRACTS FOR SALE.

There is the same practical necessity for a preliminary contract
of sale being executed with respect to registered, as with respect to
unregistered, land. The registered owner has, as vendor, the right
to sue for the purchase money.1 The purchaser on his part has the
same right to specific performance and other rights under the con-
tract— as for instance the right to possession in some circumstances
— as if the land were not on the register. These rights in the pur-
chaser are explicitly laid down in decided cases,2 and also im-
plied by the many references to contracts contained in the registra-
tion statutes themselves.8 In particular the system of cautions
and caveats implies the possibility of a contract relating to regis-
tered land being enforceable against the registered owner. In the
majority of jurisdictions the statutes expressly refer to the enforce-
ment of contracts,4 and it has been held that the right to specific
performance conferred by the statutes on a vendor implies a recipro-
cal right in the purchaser.5 In many statutes contracts are in
other ways recognized as effective.6 The contract may also be just
as effective in preserving — as also it may fail to preserve — rights
in the vendor after the land is fully assured to the purchaser, as

1Cuthbertson v. Sican (1877) 11 S. A. R. 102: Maybery v. Williams
(1910) 15 West. R. 553 (Sas.).

'For instance: In re Scanlan (1887) 3 Q. L. J. 43; South Melbourne
(Mayor) v. Taylor (1891) 17 V. L. R. 167.

* Two important oases — one in the Privy Council, the other in the
House of Lords — on specific performance, from the purchaser's and
vendor's points of view respectively, may be here referred to, though not
concerned specially with registered land : Uotcard v. Miliar [1915] A. C.
318; McOrory v. Alderdale Estate Co. [1918] A. C. 503 (cited in Can. Pac.
Ry. v. Blunt [1918] 3 W. W. R. 219).

*Bng. 1875, s. 93; I. 1891, s. 17; On. 1914, s. 114: N. S. W. 1900.
s. 44: Q. 1861. s. 96: Tas. 1862. s. 115: V. 1915. s. 71; W. A. 1893.
s. 67; P. 1913, s. 31; Tr. 1902. s. 132; J. 1888, s. 54; L. Is. 1886 (1914),
s. 6. In Leeward Islands it is implied that a contract may be registered
at the ordinary deeds registry. * In re Scanlan. supra.

•Q. 1877. s. 5H : S. A. 1886, s. 249 : V. 1915. s. 278 : W. A. 1893. s. 237 ;
Fi. 1876 (1906), s. 117: M. 1913. ss. 29. 64: Sas. 1917. s. 205: Al. 1906.
ss. 93, 101. 124. 139: Can. 1906. s. 4; B. C. 1911, s. 61. In Manitoba a
contract may be registered at the ordinary deeds registry.

302 SALE, TRANSFER, LEASE. [Ch.vii.

under the ordinary law relating to unregistered land.7 The regis-
tration statutes do not, as a rule, modify the ordinary law with
respect to contracts or agreements for sale.8 There are however
some exceptions, and a few instances may here be noticed.

One exception is referred to in the case just cited. In Alberta
a contract is made assignable " both at law and in equity " and
" notwithstanding anything to the contrary therein contained." 9 In
Alberta also a contract for sale by reference to an unregistered plan
is prohibited and made illegal.10 In Manitoba and British Colum-
bia such a sale is voidable at the option of the purchaser.11 In
British Columbia a vendor selling for purchase money payable by
instalments must furnish the purchaser with a registrable contract,
and he must also have his own title registered,12 though the non-
registration of the contract will not prevent the vendor from recov-
ering the purchase money by action.13 In British Columbia also a
contract, to pass even an equitable interest in the land, must be
registered, and provision is made for having the registration can-
celled on breach of the contract.14 In England the purchaser is
precluded from requiring evidence of title beyond (in general)
that afforded by the register, when the title is fully warranted;15
the rule thus expressly laid down is in practice acted on in other
jurisdictions.

The practice on sales by the court may be affected by the cir-
cumstance that the land is registered, for such a sale is sometimes
made subject to all incumbrances (including taxes).16

The question may be raised whether the interest which forms
the subject of the contract is registered land or not. Thus, in
England a mortgagee of leasehold land by demise has been held,
when selling his interest under the sub-term, not to be a vendor of
registered land.17

T Foster v. Stiffler (1909) 19 Man. R. 533: Freeman v. Calverley
(1916) 34 West. R. 514 (Man.) ; Re Jamieson Caveat (1913) 23 West.
R. 921 (Sas.) ; Broder v. Glenn (1914) 29 West. R. 368 (Sas.) ; Blaclcham
v. Haythorpe (1917) 3 C. L. R. 156.

"Raymond Land Co. V. Knight Sugar Co. (1909) 11 West. R. 687 (Al.).

9A1. 1906, s. 101. See p. 309,posf.

10 Al. 1906, s. 124. See as to plans, post, p. 318.

n M. 1913, s. 64 ; B. C. 1911, s. 94.

12 B. C. 1911, s. 61.

13 McDonnell v. McClymont (1915) 22 B. C. R. 1.

M B. C. 1911, ss. 104, 150 ; Howard v. Miller [1915] A. C. 318, 326.

15 Eng. 1897, s. 16.

"Canada Perm. Mortgage Corp. v. Martin (1909) 12 West. R. 440
(Sas.) ; Can. Torr. Syst. 330.

"In re Voss and Saunders' Cont. [1911] 1 Ch. 42. See Own. & Inc.
163; Prec. Reg. Land, 34.

Sect. 1] TRANSFER ON SALE. 303

The written contract is, for the most part, to be construed in
the same way as an ordinary contract, and without reference to the
fact that the land sold is, and purports to be, on the register. Thus,
the contract is not to be read as embodying the description of the
parcels on the register; if the owner's registered title is subject to
reservations in the original grant from the Crown, and the con-
tract is silent as to any such reservation, the vendor may be unable
to get specific performance and the purchaser may be entitled to
damages.18

So any question of " parcel or no parcel " arising on the con-
struction of the contract is determined without reference to the fact
of registration.19 A reference to the register in the contract will
not always make the register evidence of the identity of the ven-
dor.20 The meaning of particular clauses and stipulations in
contracts for sale is constantly determined by the courts without
reference to the fact of the land being registered land.21

If the land did not even purport to be on the register, the pur-
chaser might not be entitled — at all events under an open contract
— to treat all the provisions of the registration statutes as applic-
able;22 thus, in the case cited the purchaser was not entitled to
withhold payment of purchase money until his conveyance was
registered, although under the stringent provisions of the British
Columbia statute no estate " at law or in equity " passes until reg-
istration.

If however it is clear from the terms of the contract that the
land sold is, or purports to be, on the register, the provisions of the
registration statutes necessarily affect the procedure for completing
the sale, apart from the actual construction of the contract itself.
This procedure differs in several respects from that usually followed
with regard to unregistered land, particularly as to furnishing an
abstract of the vendor's title and the payment over of the purchase
money on completion. These points will be referred to later on.

The contract may expressly or impliedly assert that the land
sold is on the register, when as a matter of fact this is not so. The

mNeiU v. Davidson (1890) 11 N. S. W. Eq. 209: Raymond Land Co. v.
Knight Sugar Co. (1909) 11 West. R. 687 (Al.).

19 Donaldson V. Hemmant (1901) 11 Q. L. J. 35.

10 Arthur & Co. v. Cullen [1917] N. Z. R. 706.

21 Macgregor v. Templeton (1882) 8 V. L. R. 195: Richardson V. Kear-
lon, ib. 201; Perrin V. Reynolds (1886) 12 V. L. R. 440: Perry v. Sherlock
(1888) 14 V. L. R. 492: Solomons v. Ilalloran (1906) 7 S. R. (N. S. W.)
32; Cushing v. Knight (1912) 46 Can. S. C. R. 555; Sutton v. Cary (1916)
16 S. R. (N. S. W.) 254.

= Thompson v. McDonald (1914) 20 B. C. R. 223. See B. C. 1911.
s. 104.

304 SALE, TRANSFER, LEASE. [Ch.vu.

purchaser will then be entitled either to damages for breach of the
contract,23 under some circumstances to rescission,24 or (if the
vendor's title is good) to specific performance by having the land
placed on the register at the expense of the vendor.25 The measure
of damages, apart from return of deposit, &c, will be the extra
expense of having legal advice, on the assumption that such advice
would not have been necessary had the land been on the register.26
If the purchaser does not rely on the representation as to the land
being registered, and does not buy on the faith of it, he will not be
allowed to deduct from the purchase money the cost of placing the
land on the register.27 The promise of the vendor to pay the cost
of initial registration, when such a promise is made subsequently to
the contract being entered into, is merely nudum pactum; but a
promise to have the land placed on the register, made for sufficient
consideration, need not be in writing in order to be enforceable as
a contract.28 Specific performance may be refused to a vendor who
untruly represents the land to be registered.29

Sometimes a contract for the sale of unregistered land contains
a clause expressly binding the vendor to place the land on the
register. When a date is fixed for completion of initial registra-
tion, time will be considered to be of the essence of the contract;30
but when no date is fixed, the purchaser can only get damages if
the delay is unreasonable and on that footing.31 Any purchaser of
unregistered land may usually — of course at his own expense —
obtain initial registration without having a formal conveyance from
his vendor, and in such a case no conveyance is necessary, the pur-
chaser being registered as owner in lieu of having the land con-
veyed to him.32 In Jamaica,33 such a purchaser may, in the ab-
sence of contrary stipulation, require his vendor to have him placed
upon the register as owner Avith a fully warranted or " absolute "
title in lieu of making a formal conveyance to him.

23 Skinner v. Australian and British Land Co. (1889) 15 V. L. R. 674.

"Rodgers v. King (1888) 4 W. N. (N. S. W.) 157.

25 Matthews v. James (1882) 8 V. L. R. 188: Fischer v. Bennett
(1911) 11 S. R. (N. S. W.) 399; Smith v. Ernst (1912) 22 Man. R. 363.

20 Skinner v. Australian and British Land Co., supra. The damages
in this case were assessed at £3.10.0, and the deposit does not seem to bave
been returned.

"Watson v. Watson (1886) 12 V. L. R. 433.

29 Watson v. Watson, supra; Smith v. Ernst (1912) 22 Man. R. 363;
and see Coker v. Spence (1876) 2 V. L. R. L. 273.

"Rowsell v. Riddell [1919] N. Z. R. 57.

'"Davis v. Dougall (1889) 15 V. L. R. 424.

31 Tl acker v. Australian Property Co. (1890) 17 V. L. R. 376.

82Aust. Torr. Syst. 725; ante, p. 38.

83 J. 1894. ss. 1-3.

Sect. 1] TRANSFER ON SALE. 305

Apart from any special conditions of sale or clauses in the
agreement, a contract for the sale of registered land undoubtedly
confers on the purchaser the right to have the contract specifically
performed by being placed on the register as owner of the land in
the stead of the vendor. This right the purchaser may protect by
entering a caveat or caution,34 or (in British Columbia) by regis-
tering his contract.35

One of the purchaser's rights subsidiary to the main right of
obtaining the registered ownership is that the vendor should shew
his title,36 which is usually done in the case of unregistered land
by delivering an abstract of title. The difference made by the statu-
tory system of conveyancing with respect to proof of title has led
to a change in the practice regarding abstracts. What is usually
known as an abstract of title is a summary of the contents of the
documents that constitute the vendor's claim of title. Since an
owner's title by warranted registration does not depend on any
chain of title, an abstract of title in the ordinary sense is unneces-
sary and cannot usually be required from a vendor.37 Its place would
be sufficiently supplied by any reference to the register that enabled
the purchaser to ascertain the state of the vendor's title. In Eng-
land there are express enactments as to the evidence of registered
title with which a purchaser is to be satisfied,38 and the inference
from these seems to be that an abstract of the register entries is not
required. The reference to the register is in some Australasian
jurisdictions styled "particulars of title,"38 and the expression
u abstract of title " is applied only to the summary of the docu-
ments in a chain of title. But in some of the Canadian jurisdic-
tions " abstract," " abstract of title," and " abstract of registra-
tions," are used to denote an officially certified statement furnished
by the registry for the purpose of shewing the state of the register
with respect to the vendor's title. Such an abstract is distinguished

"Howard v. Currie (1879) 5 V. L. R. 87; Hill v. Keene (1903) 23
N. Z. R. 404 ; Holmsted v. Canadian Northern Ry. Co. (1914) 29 West. R.
108 (Sas.) ; Aust. Torr. Syst. 1036; Own. & Inc. 131.

■ B. C. 1911, s. 104 ; Howard v. Miller [1915] A. C. 318, 326.

"West v. Read (1913) 13 S. R. (N. S. W.) 575, 578; Newberry x
Langan (1912) 47 Can. S. C. R. 114, 124.

"Davidson v. Brown (1879) 5 V. L. R. L. 288; Newberry v. Langan,
supra; Auriol v. Alberta Land Co. (1912) 20 West. R. 185, 189 (Al.) ;
Own. & Inc. 166, 167; Wms. V. & P. (2nd Ed.) 1170 et seq.

88 Eng. 1875. s. 104 ; 1897, s. 16 ; 1903-8 Rules, r. 284.

18 Conv. & Prop. L. 36. In practice abstracts .of title are not usrd in
Victoria, even in the case of unregistered land : so in New Zealand : Martin's
Conv. in N. Z. 49, Suppl. 128.

r.t.l. — 20

306 SALE, TRANSFER, LEASE. [Ch. vii.

from a " solicitor's abstract " — a summary of the documents con-
stituting a vendor's title.40

When the title, or part of it, is not fully warranted, different
considerations apply, and so far as the unwarranted title extends
it would seem that the old rules relating to abstracts of title, &c,
would still govern the rights of the parties,41 and so a fortiori if
the land is an interest carved out of the registered estate, and there-
fore not itself the subject of an entry on the register — not in fact
" registered land " as strictly defined.42

As under an ordinary open contract a purchaser can require the
vendor to shew his title, so the vendor can insist on the purchase
money being paid him upon his executing a complete assurance of
the land sold. In the case of registered land this right of the
vendor is modified, just as the method of shewing title is modified.
Since it is registration, and not the mere execution of an instru-
ment of assurance, that vests the vendor's land in the purchaser,48
the strict right of the vendor who has engaged to give a registered
title would seem to be payment of the purchase money only upon
registration of the purchaser as owner.44 This may not always be
insisted on in practice, but the vendor is at all events bound to have
the register in such a state that the purchaser's instrument of
transfer can at once be registered.45 This would often involve
settling a sale and purchase transaction at the registry office itself.48

The agreement to shew a registered title does not in itself imply
that the vendor is actually the registered owner, though it does of
course imply that the purchaser will by some means be placed upon
the register as owner, and the statutory provision on this subject in

40 Newberry v. Langan, and Auriol V. Alberta Land Co., supra; Canada
Perm. Mortgage Corp. v. Martin (1909) 12 West. It. 440 (Sas.) ; Can.
Torr. Syst. 150.

"Own. & Inc. 168; Wms. V. & P. (2nd Ed.) 1171 ; Newberry v. Langan
(1912) 47 Can. S. C. R. 114.

"See In re Voss and Saunders' Cont. [1911] 1 Ch. 42 (under Eng.
1897, s. 16).

*West V. Read (1913) 13 S. R. (N. S. W.) 575; Taylor v. Land
Mortg, Bank (1886) 12 V. L. R. 748.

** Cornish v. Cargeeg [1886] S. A. R. 108, 115, 120 ; Auriol v. Alberta
Land Co. (1912) 20 West. R. 185 (Al.) ; Own. & Inc. 182, 185; Wms.
V. & P. 1183 et seq. (2nd Ed.). See also Thompson v. McDonald (1914)
20 B. C. R. 223, though in British Columbia the vendor under an open
contract is sometimes bound to shew a registered title : B. C. 1911, s. 61.

45 Taylor v. Land Mortg. Bank (1886) 12 V. L. R. 748 ; Aust. Torr.
Syst. 842, 900.

48 See Simson v. Young [1917] 1 W. W. R. 1141, 1147 (Al.) ; (1918)
56 Can. S. C. R. 388, 411. Reference was made to Own. & Inc. 187, and
Wms. V. & P. (2nd Ed.) 1186.

Sect. 1 J TRANSFER, ON SALE. 307

England seems in harmony with cases elsewhere.47 The contract
may of course be so worded as to bind the vendor to shew a regis-
tered title in his own name,48 or the purchaser may expressly agree
to accept a transfer from some person other than the vendor.49

In the event of specific performance being ordered, one result
of the greater simplicity of a registered title is that there is seldom
any necessity for a reference as to title being included in the order
of the court.50

When the contract is not an open one, the clauses inserted by
way of express agreement are in some jurisdictions nearly as numer-
ous and special as in the case of unregistered land. Eeferences to
forms of conditions of sale are given in the note.61 In Victoria
and Western Australia 52 the statutes enable a scheduled set of
conditions to be embodied by reference in the contract.

When provision is made for the execution of a statutory trans-
fer by the vendor, this implies that the instrument to be so exe-
cuted shall be capable of registration and thus vest the land in the
purchaser.53 But the vendor's obligation to give such an instru-
ment does not arise until the whole of the purchase money is paid,
where the contract provides for payment by instalments.04 " Com-
pletion," as under ordinary law, sometimes means merely pay-
ment of part of the purchase money coupled with acceptance of
title ;55 in such a case the purchaser might be entitled to possession,
but not to have a transfer executed.

If the contract contains a clause binding the vendor to pro-
duce his certificate of title for the purchaser's inspection, this
implies that the production must be formally applied for by the
purchaser.56

Where the purchaser has been held entitled to damages for the
vendor's breach of the contract, the question has been raised

4TEng. 1897, s. 16 (2) ; Forbes v. Butler (1903) 29 V. L. R. 374.

48 Stoddart v. Wood (1889) 15 V. L. R. 457.

49 General Finance Co. v. Perpetual Executors Assoc. (1902) 27 V. L. R.
739.

"Embling V. Whitchell (1878) 4 V. L. R. 96; Perry v. Sherlock (1888)
14 V. L. R. 492. A reference was ordered in Smith v. Crawford [1918] 2
W. W. R. 298 (Sas.).

51 Free. Reg. Land, 1-34; Br. & Sh. 578-585; Bro. & Gl. 370; Conv.
Prec. 5; Conv. & Prop. L. 45, 51, 52; Hutch. 214; Can. Torr. Syst. 666,
671. ■ V. 1915, s. 278, sen. 25 ; W. A. 1893, s. 237, sch. 26.

^West v. Read (1913) 13 S. R. (N. S. W.) 575, 578; Auriol v. Al-
berta Land Co. (1912) 20 West R. 185 (AL).

"Ryan v. Fergerson (1909) 8 C. L. R. 731; Hill v. Keene (1903) 23
N. Z. R. 404.

'""Sutton v. Gary (1916) 16 S. R. (N. S. W.) 254, 257.

60 Perry v. Sherlock (1888) 14 V. L. R. 492.

308 SALE, TRANSFER, LEASE. [Ch. vii.

whether the rule laid down in Flureau v. Thornhill and Bain v.
Fothergill 57 applies to registered land — that on a sale of land
damages are not recoverable for loss of bargain where the vendor
through no fault of his own is unable to make title. In several
cases damages for loss of bargain have been given on the ground
that the vendor was in fault,88 and on the authority of Engell v.
Fitch.59 But where the vendor has not been in fault, the rule in
Bain v. Fothergill has been held in several jurisdictions to apply,
and so bar the right of a purchaser to damages for loss of bargain.60
On the other hand it has been suggested that the general rule as
laid down in Bain v. Fothergill will not apply to registered land,
and that there should be no distinction between damages for loss of
bargain and other damages for breach of contract by a vendor;61
but this suggestion seems to be overborne by authority.

Some of the cases just cited turned on the vendor having put
it out of his power to complete his contract by conveying away, or
giving interests in, the land to third persons.62 This he is not
entitled to do, though he is at liberty to assign the purchase moneys
and other benefits of the contract.63 The rule would seem to be
the same with respect to registered land as under the ordinary law ;
but a vendor has been held in New South Wales to have committed
no breach of contract in transferring the land to a third person.64

The purchaser can of course assign the benefit of his contract,
as under the ordinary law. Cases occur, particularly in some of
the Canadian jurisdictions, where the contract is made assignable

67 (1775) 2 W. Bl. 1078; (1874) L. R. 7 H. L. 158.

KEdtcards v. Freeborn (1877) 11 S. A. R. 128; Ross v. Robinson
(1886) 12 V. L. R. 764; Colonial Invest. Co. v. Cobain (1888) 14 V. L. R.
740; Mailer v. Clayton (1899) 1 W. A. R. 3; O'Neil v. Drmkle (1908) 8
West. R. 937 (Sas.) ; Liao Ng v. Koh Vun (1911) Innes F. M. S. 142:
Solomon v. Litchfield (1916) 16 S. R. (N. S. W.) 610.

" (1869) L. R. 4 Q. B. 659.

"Merry v. Australian Mut. Prov. Soc. (1872) 3 Q. S. C. R. 40, 63;
Perrin V. Reynolds (1886) 12 V. L. R. 440; West V. Read (1913) 13
S. R. (N. S. W.) 575, 580; Maitland v. Matthews (1915) 31 West. R.
165 (Al.) ; Besnard v. La Corporation Episcopale (1916) 34 West. R. 721
(Sas.). In Reschke v. Hensley [1913] g. A. R. 105. 114, Bain v. Fothergill,
which was there distinguished, was said to be " indisputable law," though
the land in question was on the register. And see Own. & Inc. 272 ; Can.
Torr. Syst. 151.

41 Mailer v. Clayton, supra; O'Neil v. Drinkle, supra; Joske v. Huon
(1882) Udal's Fiji R. 68; Innes F. M. S. 55.

62 Edwards v. Freeborn, supra; Ross v. Robinson, supra.

03 Ross v. Robinson, supra; Rowe v. Equity Trustees (1895) 21 V. L. R.
762; Grace v. Kuebler (1917) 56 Can. S. C. R. 1; Own. & Inc. 76, 272;
Wms. V. & P. (2nd Ed.) 564.

**Fama v. White (1906) 6 S. R. (N. S. W.) 415. See however, in
particular, Grace v. Kuebler, supra.

Sect. 1] TRANSFER ON SALE. 309

only with the vendor's consent.65 In Alberta it is enacted that a
contract " shall notwithstanding anything to the contrary therein
contained be assignable/' and the assignee takes the assignor's in-
terest " both at law and in equity " : notice must be given to the
original vendor.66

The purchaser may, in discovering that his vendor cannot give
him a good title, recover back any moneys paid, as under ordinary
law: omission to search and to discover the defect in title will not
preclude the recovery of the moneys so paid, the register not being
notice to this extent.67

SUB-SECTION 2 THE STATUTORY TRANSFER.

In twenty jurisdictions the alienation of registered interests on
sale must ordinarily be effected by the execution and registration
of an instrument in prescribed form. In British Columbia and
British Honduras the use of statutory instruments is permissive
only and not compulsory, and these two jurisdictions will be dealt
with in the next sub-section (sub-sect. 3, post, p. 329).

The scheme of the system as a whole is to give statutory sanc-
tion to the transfer of land, and of such interests as mortgages and
leases, by registered owners, and to give the like sanction to the
transfer of land and interests in it by mortgagees under power of
sale, and by the sheriff or other judicial officer on behalf of owners.
There are many points of difference in the various jurisdictions,
and these differences vary greatly in importance and scope.

What has already been said as to the execution, attestation, and
registration of instruments of mortgage applies for the most part
to instruments of transfer (ante, pp. 221-236).

England, Ireland, and Ontario 1 stand by themselves, and differ
on some important points from other jurisdictions. A registered
owner "may"2 transfer his land (freehold or leasehold), or part
of it, by an instrument in prescribed form, and the transferee is to
be registered as owner. In England and Ontario the transferor is,
until registration of the transferee, " deemed to remain " owner of
the land, and in Ireland, until registration, the transferee has not

"An illustration is McKiUop V. Alexander (1912) 45 Can. S. C. R. 551.

«A1. 1906, s. 101.

"Christie V. Taylor (1914) 26 West R. 673 (AL).

1 Eng. 1875. ss. 29, 39 ; 1897, s. 6 ; 1903-8 Rules, rr. 97-125, 126-157,
168. 182; Own. & Inc. 172-175, 209. I. 1891, ss. 35, 53; 1900 O. 4, rr.
1. 2; f. 9. On. 1914, ss. 38, 48, 69 (1), 102; 1911 Rules, rr. 33-36, 56-64,
66, 67.

1 As to " may " being in effect peremptory, see under " Mortgages "
ante, p. 206.

310 SALE, TRANSFER, LEASE. [Cu. vu.

" any estate in the lands." These expressions do not appear to
mean quite the same thing, and the Irish enactment has been inter-
preted literally as meaning that the transferee has no estate at law
or in equity until registration.3 In Ontario the transferee has con-
ferred upon him by the executed instrument " a right to be regis-
tered/' and this seems to be implied by the English and Irish
enactments.4 In England and Ireland the prescribed forms of
transfer are under seal, but in Ontario sealing is unnecessary, and
the instrument has " the same effect for all purposes as if it were
made under seal."5 In England and Ontario the prescribed form of
transfer contemplates the whole interest of the transferor passing
to the transferee, and no words of limitation are necessary; but in
Ireland the prescribed form of a transfer of the fee simple contains
an habendum " unto and to the use of the transferee in fee simple,"
though the insertion of these words appears not to be necessary,
and is not always insisted on by the registry.6 In England and
Ireland the registered owner may be actually a limited owner only,
and provision is made for protecting interests under the settlement,
whilst in England a special form of transfer w to the uses of a set-
tlement " is prescribed.7 Apart from these provisions the statutes
do not contemplate the creation of life estates or estates in re-
mainder on the register.8

Provision is made for the transfer of land by a mortgagee under
his power of sale. In England and Ontario this transfer by the
mortgagee takes effect " as if he were the registered " owner of the
land ; in Ireland the transferee's registration has " the same effect
as registration on a transfer for valuable consideration by a reg-
istered owner." 9 In Ontario provision is also made for transfer
upon sale of the land under an execution or for taxes ;10 in England
and Ireland a judgment creditor can only obtain a charge (in Ire-
land a judgment-mortgage) on the land enforceable by the pro-

3 Torish v. Orr [1894] 2 I. R. 330 ; Pirn v. Coyle [1907] 1 I. R. 330 ;
McOettiffan v. Roulstone [1910] 2 I. R. 17; Mooney v. McMahon [1911]
1 I. R. 125. See under " Unregistered transactions " ante, p. 114.

4 On. 1914, s. 69 (1). So in the Australian jurisdictions the right
to be registered expressly conferred by some statutes has been held to be
implied in others: Barry v. Heider (1914) 19 C. I». R. 197; Q. 1877, s.
48 ; S. A. 1886, s. 246.

sOn. 1914, s. 102; Beatty v. Bailey (1912) 26 O. L. R. 145, 149.

8 1. 1910 O. 4, r. 1, f. 9 ; Bro. & Gl. 141. See Own. & Inc. 172, 173,
as to both England and Ontario.

TEng. 1897, s. 6 (3) ; 1903-8 Rules, r. 128; f. 22. I. 1891, s. 35.

• Own. & Inc. 51 ; Bro. & Gl. 48, 156, 178.

•Eng. 1875, s. 27; I. 1891, s. 40 (6) ; On. 1914, s. 35. See under
" Mortgages," ante, p. 250.

10 On. 1914. ss. 65, 66.

Sect. 1] TRANSFER ON SALE. 311

ceedings applicable to equitable mortgages.11 The purchaser at a
sale for taxes in Ontario is liable, if he delay in entering a caution
or registering his transfer, to be postponed (even after registra-
tion) to an unregistered purchaser from the owner of the land.12

The transfer of mortgages (or " charges ") is expressly au-
thorized in all three jurisdictions, though not in precisely the same
terms.13 The transfer of leases is not provided for, since leases
are not registered but merely protected by notice on the register.

These three jurisdictions differ from all others in enacting —
in the sections which expressly permit transactions off the register
— that registered dispositions can only be made by registered own-
ers; the case of an instrument being executed by a person who is
not yet registered as owner is expressly provided for in England
and Ontario, though no practical necessity for such an enactment
appears to have arisen in Ireland.14

Plans, as part of the registration system, are sometimes required
in connexion with transfers of land, and are provided for by the
statute itself in Ontario and by rules in England and Ireland.1"'
Plans are merely intended to identify the land ; they may also serve
to give notice to purchasers of rights over the land, when any such
right has been properly created.16

The method of completing a transaction of transfer by regis-
tration consists not merely in recording the instrument and enter-
ing it on the register so as to confer certain rights on the person
taking under the instrument, but the transferee is entered on the
register as owner of the land (or charge, as the case may be) in
place of the transferor.17 The substitution of the transferee as
owner in place of the transferor is complete on the register itself,
and the effect of the registration does not depend on whether a new

11 Eng. 1875, s. 53 ; Land Charges Acts 1888 and 1900. I. 1891, s. 21 ;
Brp. & Gl. 119-122. An analogous practice obtains in Manitoba: Can.
Torr. Syst. 256; Judgments Act (R. S. Man. 1913, c. 107). s. 3.

"Re Lord and Ellis (1914) 30 O. L. R. 582, though apparently de-
cided without reference to On. 1914, s. 66, as now amended.

"Eng. 1875, s. 40; 1903-8 Rules, rr. 97-125, 151, 157, 168, 174. I.
1891, s. 41. On. 1914, s. 54. See under "Mortgages," ante, p. 195.

"Eng. 1875, s. 49; 1897, s. 9 (6) ; 1903-8 Rules, rr. 96, 104. I. 1891,
s. 44. On. 1914, ss. 68, 69. See Own. & Inc. 188 ; Bro. & Gl. 142 ; Aust.
Torr. Syst. 912 ; Can. Torr. Syst. 230 ; under " Mortgages," ante, p. 231.

"Eng. 1903-8 Rules, rr. 269-283; I. 1910 O. 9, rr. 1, 2: On. 1914.
ss. 105-111. And see references in note 1, supra.

"Sumner v. Mcintosh [1918] 2 W. W. R. 293 (Sas.) would seem to
apply.

"Eng. 1875. ss. 29. 34. 40: Br. & Sh. 631 et scq. (model resister* » .
I. 1891. ss. 35, 41 ; Bro. & Gl. 351 et seq. (examples of register). On. 1914,
ss. 38. 48. 54; 1911 Rules, r. 65 (form of register).

312 SALE, TRANSFER, LEASE. [Ch.vii.

page or folium of the register is opened for the transferee, or
whether the new ownership of the latter is entered on the same
page or folium as the former ownership of the transferor.18

The statutes in all three jurisdictions agree in drawing a dis-
tinction between transfers of land for and without valuable con-
sideration. In other respects there are differences as to the effect
of the registration of transfers, whether of land or charges on land.
A transfer of land without valuable consideration is, so far as con-
cerns the transferee, subject to the same unregistered interests as
before the transfer, but otherwise " when registered " it operates as
a transfer for value does.19 Under these enactments transfers
from one who is merely an agent, and transfers by way of assign-
ment for benefit of creditors, will, though registered, be subject to
other interests unregistered but obtained for value.20

In England and Ontario 21 a transfer of freehold land for value,
" when registered," confers on the transferee an " estate in fee
simple " with its appurtenant rights, subject to registered or noted
incumbrances and certain statutory quasi-incumbrances, " but free
from all other estates and interests " including those of the Crown ;
if the title is not fully warranted, the transferee takes subject to
the same qualifications as his transferor, and it may be that the
mines will not always vest in the transferee, unless by virtue of a
separate transfer and registration. In England certain of the
provisions of the Conveyancing Acts are also incorporated (s. 9).
A transfer of leasehold land for value will, " when registered/' vest
in the transferee "the land transferred for all the leasehold estate
described in the registered lease," subject to the incidents of the
leasehold estate and otherwise as in the case of freehold land; cove-
nants by transferor and transferee are also implied " on the trans-
fer of " leasehold land — presumably on the completion of the trans-
fer by registration — and (in England) on the transfer of freehold
land subject to a rent.22 In Ireland transfer of leasehold land is
by a general enactment assimilated to that of freehold, and a dis-
tinction is made as to the effect of registering a transferee as " full
owner " or " limited owner." 23 On registration of a transferee as

18 This question is of practical importance in some other jurisdictions,
and amending enactments have been considered necessary : for instance, in
Federated Malay States, post p. 327.

19Eng. 1875, ss. 33, 38: I. 1891, ss. 36 (1), 53; On. 1914, ss. 45, 52.

20 Re Lord and Ellis (1914) 30 O. L. R. 582; Macdonald (John) & Co.
v. Tew (1914) 32 O. L. R. 262.

"Eng. 1875, ss. 30-32; 1897. s. 9 (1, 2). On. 1914, ss. 42-44, 94.

22 Eng. 1875, ss. 35, 39 ; 1903-8 Rules, rr. 132, 140-142. On. 1914, sa.
49-51, 53.

2* I. 1891. ss. 36, 53

Sect. 1] TRANSFER ON SALE. 313

" full owner," the transfer will " operate as a conveyance by deed "
under the Conveyancing Acts, and vest "in the registered trans-
feree an estate in fee simple/' subject to registered burdens and
burdens that are quasi-incumbrances, but "free from all other
rights " including those of the Crown. The statutes which forbid
subdivision of holdings do not so override the registration statute
as to prevent the registration of a transfer by which an improper
subdivision is effected.24 On registration of a transferee " as lim-
ited owner," the " fee simple conferred by the registration shall
vest in the transferee and the other persons entitled " under the
settlement, the registration otherwise having the same effect as in
the case of a " full owner."

Notwithstanding the stringent provision as to the transferee on
registration taking " free from all other estates," &c, this does not
abrogate the equitable doctrine by which actual notice is under
some circumstances treated as amounting to fraud; a registered
transferee may thus be liable to have his registration cancelled, if
he take with notice of another's claim.25 But a bona, fide trans-
feree, duly registered, takes the fee simple or other interest not-
withstanding an actual possible defect in his predecessor's title —
as by a Crown grant being void, or an executor's power of sale
doubtful; he may thus be in a better position than if he had his
interest vested in him on initial registration.26

The effect of the registration of the transfer of a mortgage or
" charge " differs in the three jurisdictions. In England no war-
ranty of title is conferred, though a transferee for value is not
affected by any invalidity in the charge of which he was not aware ;
in Ontario the registered transferee takes " the ownership of the
charge free from any unregistered interests " ; in Ireland a distinc-
tion is made between transfers for and without value, but otherwise
on registration of the transferee the instrument of transfer oper-
ates as a conveyance by deed under the Conveyancing Acts, and the
transferee has " the same title to the charge as the registered trans-
feree of land . . . has to the land." 27 A warranty* of title is thus
given in Ontario and Ireland, though not in England.28 But the
principles governing the case of a forged transfer being placed on

u In re Geoghegan [1918] 1 I. R. 188.

"In re Skill and Thompson (1908) 17 O. L. R. 186. See under
" Notice " ante, p. 120.

MFarah v. Glen Lake Mining Co. (1908) 17 O. L. R. 13: Kennedy
v. Suydam (1916) 36 O. L. R. 510. See under " Conclusiveness of the
Register" ante, p. 96.

"Eng. 1875, s. 40; I. 1891, s. 41 (4) ; On. 1914, s. 54 (3). See
under " Mortgages " ante. p. 195.

"Att.-Gen. v. Odell [1906] 2 Ch. 47, 75, 78.

314 SALE, TRANSFER, LEASE. [Ch. vii.

the register would probably apply in Ireland and Ontario as in
England.29 On transfer of the mortgage the debt passes to the
transferee, and the statutes in effect enable the transferee to sue in
his own name for the debt.80

The statutes in the following ten jurisdictions are sufficiently
alike to be grouped together, viz. : The seven Australian, New Zea-
land, Trinidad-Tobago, and Jamaica, though each has some points
on which it differs from others. Canadian cases will often be
found applicable.

A registered owner may transfer his land by executing an in-
strument in prescribed form, but the land or interest transferred
only passes to the transferee upon registration of the instrument;
in Queensland and Papua special provision is made for transfer
and charge being effected by means of a single instrument.31 In
Queensland, South Australia, and Papua, the transferee has ex-
pressly conferred on him (as in Ontario) a "right or claim to the
registration of " the interest to be given him, though the case law
in other jurisdictions is substantially the same.32 Some of the
statutes have " may," some " shall," in the sections authorizing the
statutory method of transfer ; the meaning of both is the same, the
word " may " being in effect peremptory,33 and the execution and
registration of the statutory instrument being the only method by
which the estate of the registered owner can ordinarily be vested in
another person.34 The interest taken by the transferee is the
interest that purports to be conferred on him by the instrument of
transfer. No words of limitation are used in the statutory forms
(with one exception in Queensland and Papua), or contemplated
as necessary. In each of the statutes there is however an enact-
ment by which words of inheritance are to be implied under proper
circumstances.33 In Victoria and Western Australia 36 (as in

29 See Att.-Gen. v. Odell, supra, and under "Forgery " ante, p. 143.

80 See under " Mortgages " ante, p. 261.

31 N. S. W. 1900, ss. 41, 46; Q. 1861, ss. 43, 48, and 1877, ss. 23-28;
S. A. 1886, ss. 67, 96 ; Tas. 1862. ss. 39. 42 ; V. 1915, ss. 61, 121 ■ W. A.
1893, ss. 58, 82 ; P. 1913, ss. 28. 34. 59-62 ; N. Z. 1915, ss. 38, 82 ; Tr. 1902,
ss. 46, 51 ; J. 1888, ss. 48, 63.

MQ. 1877, s. 48; S. A. 1886, s. 246; P. 1913. s. 126; On. 1914, s.
69 (1). Barry v. Heider (1914) 19 C. L. R. 197, cited under "Unreg-
istered Transactions " ante, p. 114, where the effect of the instrument of
transfer before registration is dealt with.

33 Crowley v. Templeton (1914) 17 C. L. R. 457.

"West v. Read (1913) 13 S. R. (N. S. W.) 575, 579.

85 N. S. W. 1900, s. 3 (b) ; Q. 1861, s. 3 ; S. A. 1886, s. 3; Tas. 1862,
s. 3 ; V. 1915, s. 86 ; W. A. 1893, s. 81 ; P. 1913, s. 5 ; N. Z. 1915, s. 222 ;
Tr. 1902, s. 2; J. 1888, s. 69.

36 V. 1915, s. 124; W. A. 1893, s. 85; On. 1914, s. 102. Miller v.
Commr. for Rys. (1900) 2 W. A. R. 38, 40.

Sect.1] transfer on sale. 315

Ontario) the statutory transfer is of the same efficacy as if under
seal, and in other jurisdictions (except Jamaica) it has the efficacy
of a deed when registered.37 And although there is no actual con-
veyance of the land until registration, the instrument of transfer
itself is for many purposes treated as if it were an effective convey-
ance.38 The only exceptions to the rule that instruments of trans-
fer need not be under seal, and need not contain words of limita-
tion (as "heirs," &c.), appear to be in Queensland and Papua,
where the prescribed forms of combined transfer and charge are
framed like ordinary deeds and intended to be executed as such.su

The statutes authorize the registered owner to create or transfer
easements by the prescribed forms of transfer of land, and in some
jurisdictions a short form of words is given for creating an ease-
ment.40 Xor is it only easements proper that can be entered on
the register ; even agreements to operate in f uturo, such as for access
of light to buildings " to be erected " have been allowed registra-
tion.41 It is no objection to the registrability of an easement that
it is appurtenant to a piece of land of merely nominal size and
value — as one square link.42 An easement must be created in some
manner pointed out by the statutes, or otherwise sufficient under
the general law. It would seem not to be sufficient to mark out
land on a plan as subject to a right of way, or to a restrictive cove-
nant, &c.43

The registered owner is also authorized to modify the prescribed
forms of transfer, and transfer to himself jointly with another,
create (except in Queensland) remainders and other estates, and
(except in Queensland, South Australia, and Papua) create and
execute powers of appointment, without resorting to the device of

*N. S. W. 1900. s. 36; Q. 1861. s. 35; S. A. 1886. s. 57: Tas. 1862. s.
35 ; P. 1913, s. 24 ; N. Z. 1915, s. 35 ; Tr. 1902. s. 41. See under " Mort-
gages" ante, p. 235. Jamaica, in this respect, resembles Manitoba, &e.
(post).

"Aust. Torr. Syst. 907 et seq. Other stamp cases are: Rosehill Race-
course Co. V. Commr. of Stamp Duties (1905) 3 C. L. R. 393; Tooth d Co.
v. Commr. of Stamp Duties (1909) 9 S. R. (N. S. W.) 652.

"Q. 1877, s. 24. sch. T; P. 1913, s. 60. sch. 7. Illustrations are:
South Australian Mining Co. v. Mclnnes (1896) 6 Q. L. J. 2S9 : Broad-
foot v. Foxwell (1896) 7 Q. L. J. 4.

49 N. S. W. 1900, s. 46; Q. 1877. s. 24; S. A. 1886, ss. 84, 89, 9<» :
Tas. 1862, s. 42. and 1886, s. 27: V. 1915. s. 128; W. A. 1893, s. 65: P.
1913, s. 60 ; X. Z. 1915, s. 82 ; Tr. 1902, s. 51 ; J. 1888, s. 68.

* Commonwealth v. Registrar of Titles (1918) 24 C. L. R. 348.

"Ex p. Waddington [1917] V. L. R. 603.

"Sumner v. Mcintosh [1918] 2 W. W. R. 293 (Sas.).

316 SALE, TRANSFER, LEASE. [Ch.vii.

uses or re-assignment.44 The same interests can in fact be created
as could ordinarily be created only with the Statute of Uses, but
without calling it in aid. Thus, the common law rule as to a man
not being able to convey directly to himself is practically abro-
gated, and there is no objection to a transfer being made by a reg-
istered owner from himself in one capacity to himself in another
capacity.45 Life estates with power of appointment over the fee
simple may be created,46 and such a power will be construed as
authorizing a mortgage of the land — although a mortgagee gets
only a charge and not a transfer of the fee simple.47

In some cases modifications in the form of transfer may be
made, which are not contemplated by the statutes but will not
make the instrument unregistrable ; for instance, though a transfer
should not contain express trust limitations, a transfer that does
contain these may be registered, but the existence of the trusts will
not be referred to on the register itself.48

In three jurisdictions — Tasmania, Victoria, Western Australia
— a registered owner whose interest is an estate tail is expressly
authorized to bar the entail and confer a fee simple on the transferee
under the prescribed form of transfer; in Tasmania estates tail in
registered land can no longer be created.48 In Jamaica, appar-
ently, an estate tail cannot be registered as such,50 and therefore it
seems that a transfer conferring an estate tail would not be regis-
tered. In Victoria estates tail can no longer be created in any
land, registered or unregistered.51

Any addition to, or alteration in, the prescribed form of transfer
should have reference to the land itself. It has been said that an

44 N. S. W. 1900, s. 99 ; Q. 1861, s. 82 ; S. A. 1886, s. Ill ; Tas. 1862,
s. 86 ; V. 1915, s. 123 ; W. A. 1893, s. 84 ; P. 1913, s. 40 ; N. Z. 1915, s. 87 ;
Tr. 1902. s. 62 ; J. 1888, s. 65. And see Aust. Torr. Syst. 874, 890, 926,
940.

46 Ex p. Wisewould (1890) 11 V. L. R. 149; Hosken v. Danaher [1911]
V. Ij. R. 214. In Manitoba an executor is expressly authorized to trans-
fer to himself, and so is a trustee under a will in British Columbia : M.
1913, s. 87 ; B. C. 1911, s. 107.

46 Illustrations are : Furner v. Furrier (1903) 3 S. R. (N. S. W.) 576;
Ex p. Newcastle Build. Co. (1905) ib. 237; Moir v. Loxton (1913) 13
ib. 143 ; Conv. Prec. 106, 107. " Ex p. Newcastle Build. Co., supra.

-Re Allan and O'Connor [1918] 1 W. W. R. 440— an Alberta case
which seems of general application.

•Tas. 1886, ss. 5-8; V. 1915, ss. 180, 277; W. A. 1893, ss. 135, 236.
And see Aust. Torr. Syst. 869-871 ; Conv. & Prop. L. 98-106.

80 In re Weatherspoon and Baynes' Application (1908) Jamaica, unre-
ported.

81 Real Property Act 1915 (No. 2719), ss. 62, 63; In re Wilson (1899)
15 V. L. R. 193, 201. These sections ar* re-enaotments of ss. 108, 109 of
the 1890 Act (No. 1136) ; see Aust. Torr. Syst. 575, 870.

Sect. 1] TRANSFER ON SALE. 31?

instrument transferring chattels as well as land should not be
registered.52

The registered owner of a lease, a mortgage, or a charge, may
transfer his interest by executing an instrument in prescribed
form, which (as in the case of land) only vests the interest trans-
ferred upon registration. In New South Wales, Victoria, Western
Australia, Trinidad-Tobago, and Jamaica,53 the authority to trans-
fer is contained in the section that authorizes the transfer of land,
and in New South Wales and Trinidad-Tobago the words u lease,"
&c, are not used, but are included by necessary implication in the
general expression " any estate or interest in the land." In Queens-
land, South Australia, Tasmania, Papua, and Xew Zealand,54 the
authority to transfer is contained in a separate section of the stat-
ute, and "lease, mortgage," &c, are expressly mentioned. The
use of the word " may " is not merely permissive, but the execu-
tion and registration of the statutory instrument is (as in the case
of land) the only method by which the interest of the registered
owner can ordinarily be vested in another person.55

A mortgagee is expressly authorized under his power of sale to
execute necessary transfers to purchasers, and on the registration
of the transfer the registered ownership of the land or other inter-
est passes from the mortgagor-owner to the mortgagee's trans-
feree.58

Transfer of the registered owner's land or other interest may
also be made by registration of a transfer by the sheriff after sale
of a debtor's property under a writ of execution.57 The enactments
cited are not quite uniform, and in New Zealand are contained in
the Supreme 'Court Rules and not the registration statutes. The

a BosiceU v. Reid [1917] N. Z. R. 225.

M X. S. W. 1900, s. 46 ; V. 1915, s. 121 ; W. A. 1893, s. 82 ; Tr. 1902,
s. 51; J. 1888, s. 63.

54 Q. 1861, s. 65 ; S. A. 1886, s. 150 ; Tas. 1862, s. 63 ; P. 1913, s. 37 ;
X. Z. 1915, s. 89.

a Crowley v. Templeton (1914) 17 C. L. R. 457; West v. Read
(1913) 13 S. R. (X. S. W.) 575, 579. And see ante, p. 314.

"N. S. W. 1900, ss. 58, 59; Q. 1861. ss. 57, 58; S. A. 1886, ss. 133,
134. 136: Tas. 1862. ss. 54. 55 : V. 1915. ss. 148, 150; W. A. 1893, ss.
108, 110; P. 1913. ss. 48, 50; X. Z. 1915, ss. 103 (seh. 4. cl. 7), 109:
Tr. 1902. ss. 75. 77; J. 1888, ss. 81, 83. And see under "Mortgagee,"
ante, p. 250.

CTX. S. W. 1900, s. 105; Q. 1861, s. 91, and 1877. s. 35: S. A. 18S6.
ss. 105-107; Tas. 1862. s. 94. and 1893. s. 17: V. 1915, s. 178; W. A.
1893, ss: 90. 133. and 1909. s. 14; P. 1913. s. 112 ; Tr. 1902. s. 93: J.
1888. s. 102. And see Aust. Torr. Syst. 983-988. Xew Zealand— Judicature
Act 1908 (Xo. 89). ss. 21. 51. sch. 2 (Code of Civil Procedure in the
Supreme Court), rr. 314-320. 336-361, 362-382; r. 315 refers to registra-
tion of charging orders at registry in cases of registered land.

318 SALE, TRANSFER, LEASE. [Ch. vn.

principal difference between a transfer by the sheriff and other
transfers relates to the effect of the transfer upon unregistered
rights of other persons than the purchaser, these rights not being
so rigidly excluded or overridden by the sheriff's transfer as in
other cases. In Victoria and Western Australia special provision
is made for enforcing production of the certificate of title for the
purpose of registering a transfer from the sheriff, but this produc-
tion would be enforced in other jurisdictions as part of the machin-
ery of registration.58

In several jurisdictions provision is made for transfer of land
and other interests by persons who are not registered owners, in
addition to transfer by mortgagees and sheriff. In South Aus-
tralia transfer or sale of land for overdue rates may be made, and
the effect of a transfer is given to a deed poll vesting land in pro-
moters under the Land Clauses Consolidation Act.59 Sale for over-
due rates and transfer of the land to a purchaser is sometimes pro-
vided for in other than registration statutes, and instruments in
other than statutory form are sometimes made registrable as trans-
fers; the statutory provisions for production of certificate of title,
&c, on presentation for registration, apply in such circumstances
as in case of ordinary transfer.60 In Tasmania an executor who is
not a devisee may be registered as having the right to transfer or
mortgage the land.61 In Victoria and Western Australia transfer
of the land of a friendly society may be made by the trustees for
the time being, though they may not be the registered owners.62
Sometimes the effect of a transfer is given to Gazette notification
of compulsory acquisition — or " resumption " — of land for public
purposes.63

Provision is made in the statutes for the use of plans or maps
in connexion with the proper description of the land and its boun-

88 V. 1915. ss. 83, 84 ; W. A. 1893, ss. 78, 79 : In re Hodgson (1899)
25 V. L. R. 355. And see Registrar-General v. Wright (1917) 23 C. L. R.
214 : Anthony v. Speed [1917] S. A. R. 110.

89 S. A. 1886, ss. 102-104, 113-115.

80 Queensland— Local Authorities Act 1902 (No. 19), ss. 243-249; In
re Church's Caveat [1905] S. R. Q. 201; Fowles & Douglas Local Govt.
Law, 358. Western Australia — Municipal Institutions Act 1900 (No. 8),
ss. 358, 359; Stone and Haselden v. Registrar of Titles (1902) 4 W. A. R.
89; Watson v. Registrar of Titles (1904) 7 W. A. R. 45. Whether the
transferee takes the unincumbered ownership, or whether he takes subject
to existing incumbrances, depends on the construction of the particular
statute : see Stone and Haselden v. Registrar of Titles, supra; Ex p. Gerald-
ton Municipality (1905) 7 W. A. R. 259.

61 Tas. 1878, s. 1. ei V. 1915, s. 130 ; W. A. 1893. s. 89.

MAust. Torr. Syst. 108, 264, 281; Tully v. Carterton {Borough)
(1905) 25 N. Z. R. 236. Commonwealth— Lands Acquisition Act (1906 (No.
13), s. 20; Commonwealth v. Registrar of Titles (1918) 24 C. L. R. 348.

Sect. 1 J TRANSFER ON SALE. 3 19

daries. In particular, plans are deposited at the registry when
selling land in allotments is contemplated, and the description of
each piece sold, for the purpose of registration of transfers on sale,
is thus much facilitated.64 Eeference to the number of an allot-
ment on a deposited plan is usually sufficient description of the par-
cels in a transfer, and in some jurisdictions — as Victoria, Western
Australia, New Zealand 65 — this is expressly enacted. The plan
referred to is in fact embodied in and becomes part of the register,
and the registered owner may be entitled to rely upon the plan as
warranting the correctness of his boundaries, even when a mistake
in the plan has been made.66

Eegistration of a transfer has sometimes been refused when,
owing to the absence of a complete description by reference to a
deposited plan, the actual description of the parcels has been am-
biguous.67 A plan is usually intended only to furnish a descrip-
tion of the land, and it cannot be treated as a document of title
merely by writing words on it purporting to create a building re-
striction; such a restriction should be created by an instrument of
transfer, though if properly created the plan might be sufficient
notice of it.68

The effect of depositing a plan with roads marked upon it varies
in different jurisdictions. In many such a deposit may be sufficient
evidence of intention to dedicate the roads to public use;69 though
it would seem necessary, in order to create rights of way appurte-
nant to the abutting lands, to state this expressly in the transfer
of those lands. In New Zealand the deposit of a subdivision plan
does not operate as a dedication of roads to the public, but does
create a right of way appurtenant to abutting and other lands in
the subdivision.70

The method of registering the ownership of the transferee con-
sists in registering or recording the instrument of transfer, and

64 X. S. W. 1900, ss. 113, 114 ; Q. 1861. ss. 119, 120, and 1885, s. 8 :
S. A. 1886. ss. 241, 242, 252-254; Tas. 1862. ss. 103, 104; V. 1915, ss.
201-214; W. A. 1893, ss. 151-169: P. 1913. ss. 120. 121; N. Z. 1915, ss.
178. 179 ; Tr. 1902, sch. 2 ; J. 1888. s. 126. And see Aust. Torr. Syst. 906.

" Y. 1915. s. 212 ; W. A. 1893. s. 167 ; N. Z. 1915. s. 179.

"Smith v. Saskatoon (City) (1912) 21 West. R. S68 (Sas.). See
Turner v. Myerson (1918) 18 S. R. (N. S. W.) 133. as to effect of long
possession under description by reference to deposited plan. In the latter
case evidence was admitted to shew mistake in the plan ; in the former
the evidence was held inadmissible.

67 Rainford v. Registrar of Titles (1910) Jamaica, unreported; Smith
v. Registrar of Titles, ib.

"Sumner v. Mcintosh [1918] 2 W. W. R. 293 (Sas.), quoting Aust.
Torr. Syst. 763.

"Born v. Huntley (1886) 20 S. A. R. 33; Aust. Torr. Syst. 818.

'•N. Z. 1915. s. 179.

320 SALE, TRANSFER, LEASE. [Ch. vii.

entering a note of the transaction on the folium or page of the
register on which the transferor's title is shewn. When part only
of the land comprised in one folium of the register — usually re-
ferred to in the statutes as a " certificate of title " — is transferred,
the transferee is registered on a new folium or page of the register,
and this is often spoken of as issuing to him a new certificate of
title. In either case the registration carries with it all the benefits
of the statutory warranty of title, the transferee being then regis-
tered owner of the land or interest as shewn on the register. When
the whole of the land in one folium is transferred and the trans-
feree merely has the fact of the transfer noted on the transferor's
folium, he will receive the transferor's certificate of title as his
own. In four jurisdictions — Victoria, Western Australia, New
Zealand, Trinidad-Tobago,71 — it is enacted that the transferor's
folium of the register endorsed with a note of the transfer is to be
as effectual for evidencing the transferee's title as if the transferee
were registered in his own name on a new folium. In the remain-
ing six — New South Wales, Queensland, South Australia, Tas-
mania, Papua, Jamaica,72 — this enactment is wanting; but it has
been decided in New South Wales that the want is supplied by the
section which enacts that a transferee takes the estate and privi-
leges of the transferor.73 The decision applies exactly to the Ja-
maica statute, and would seem to apply also in Queensland, South
Australia, Tasmania, and Papua, notwithstanding that in each of
these jurisdictions the section referred to deals primarily with
transfers of mortgage, &c. Even apart from their particular enact-
ment, the intention seems to be that a transferee, however regis-
tered, should have the same right in all respects as his transferor
had.74

The method of registering a transferee who takes an estate in
remainder or reversion is left indeterminate in most jurisdictions,
and apparently, except in New Zealand, the registration may — as
is expressly provided in South Australia and Tasmania 75 — be made
either on the same folium of the register as the tenant for life, or

n V. 1915, ss. 125, 126 ; W. A. 1893, ss. 86, 87 ; N. Z. 1915, ss. 83-86 ;
Tr. 1902, ss. 54-58.

72 N. S. W. 1900, ss. 48, 51 ; Q. 1861, ss. 49, 50, 65, and 1877, s. 17 :
S. A. 1886, ss. 98-100, 150; Tas. 1862, ss. 44, 45. 63, and 1886, ss. 12, 13:
P. 1913, ss. 35-37 ; J. 1888, ss. 63, 66.

n Phillips v. McLachlan (1884) 5 N. S. W. 168, 174.

'* See Phillips v. McLachlan, supra; Port Swettenham Rubber Co. v.
Loke Yew (1910) Innes F. M. S. at p. 251. This point was not dealt
with in the Privy Council judgment (T1913] A. C. 491), but any doubt
was removed by the passing of an amending statute.

"S. A. 1886, ss. 73, 75. 188. Tas. 1862, ss. 88, 89; 1886, s. 16.

Sect. 1] TRANSFER OA SALE. 30 ±

on a fresh folium. The practical result of the remainderman being
registered on the tenant for life's folium will be that no separate
duplicate or certificate of title will be issued to the remainderman.
In New Zealand only the tenant for life can receive a duplicate
certificate of title, and the proper course is for the title of the
remainderman to be stated in the body of the registered folium or
certificate of title, and not be merely noted by way of endorse-
ment.76 This would seem to be the proper course also in other
jurisdictions — New South Wales, Queensland, Victoria, Western
Australia, Papua, Trinidad-Tobago, Jamaica " — if registration is
not made on a separate folium. But by whatever method a remain-
derman may be registered, he must be registered afresh as owner
of the fee simple when his remainder falls into possession.78

Ordinarily the production at the registry of the certificate of
title is as essential upon registration of a transfer of mortgage,
lease, &c, as upon transfer of the land itself (ante, p. 318). In Vic-
toria,79 apparently with the object of avoiding the necessity for this
production, the entry of the transfer may be made on the mort-
gage, &c, itself — that is, on the copy filed in the registry in case of
execution in duplicate — instead of on the folium of the register
continuing the title to the land.

With respect to the effect of the duly executed instrument of
transfer being registered, in these jurisdictions — differing froni
England, Ireland, and Ontario — the transferee is not on registra-
tion given a fee simple, leasehold estate, &c, in so many words, but
he receives the interest which his transferor the then registered
owner had, so far as such interest purports to be given him by the
instrument of transfer. This is done by a group of sections which
enact substantially as follows: (1) No interest passes by the in-
strument itself until registration, but on registration the interest
specified in the instrument does pass; (2) The transferee is then
in the same position as the previous registered owner with regard
to the estate vested and the title warranted; (3) If the interest
transferred is a mortgage, lease, &c, the right to sue for the debt,
&c., passes to the transferee. In South Australia, Victoria, West-
ern Australia, and Jamaica,80 it is expressly enacted that the trans-

T,N. Z. 1915. ss. 61, 87: Ex p. Matheson (1914 33 N. Z. R. 838. This
is also the practice in Trinidad-Tobago.

" N. S. W. 1900. ss. 101. 102 ; Q. 1861. ss. 36-39 ; V. 1915. s. 266 : W. A.
1893. s. 221: P. 1913. ss. 109. 110; Tr. 1902, s. 65 : J. 1888, s. 60.

78 See preceding note ; Anst. Torr. Syst. 874. 926. 1002.

79 V. 1915. s. 52.

*°S. A. 1886. ss. 67-70. 151 : V. 1915. ss. 61. 72. 121. 122. 269: \Y. A.
1893. ss. 58, 68. 82. 83. 228 : J. 1888. ss. 48. 55. 63. 64. 106. The special
sections referred to are : S. A. 68 ; V. 121. 269 : W. A. 82. 228; J. 83, 106."

R.T.L. 21

3->2 SALE, TRANSFER, LEASE. [Ch. vil.

feree becomes the owner of the interest transferred, and in the
three latter that every owner and transferee has, whilst registered,
the same rights and liabilities as if he had been the original
owner;81 these enactments however seem to be implied in the other
six jurisdictions — New South Wales, Queensland, Tasmania,
Papua, New Zealand, Trinidad-Tobago.82 But on transfer of a
lease the transferee does not become liable for breaches of covenants
or conditions in the lease committed after he has again transferred
to another person.83 The statutes in South Australia, Victoria,
Western Australia, New Zealand, and Jamaica S4 also enact, with
respect to transfers of lease, that in such a transfer there is im-
plied a covenant by the transferee with the transferor to keep the
latter indemnified against the rent and covenants under the lease.
Such a covenant, however, would seem to be implied without any
special enactment to that effect.

The transferee thus gets the same warranty of title as any other
registered owner — on initial registration or otherwise — and the
register is as conclusive in his favour. No distinction is drawn in
these groups of sections between voluntary and for value transac-
tions, as regards the conclusiveness of the register, though the dis-
tinction is referred to in other parts of the statutes and is upheld
by judicial decision.83 Nor is any such distinction here drawn be-
tween registration after transfer and initial registration, though
this distinction also is referred to elsewhere.86

Other questions on the conclusiveness of the register, and the
exceptions to this conclusiveness, are on the same footing as ques-
tions relating to the title of registered owners in general (ante,
p. 94). The transferee, by being registered as owner, acquires a
legal and warranted title to the interest in respect of which he is
registered,87 subject to the same exceptions as other registered own-
ers. He takes, of course, subject to registered incumbrances, and

81 See Stevenson v. Brind (1895) 21 V. L. R. 109.

82 N. S. W. 1900. ss. 41, 42. 51, 52; Q. 1861, ss. 43, 44, 65, 66; Tas.
1862, ss. 39, 40. 63, 64 ; P. 1913, ss. 28, 29, 37, 38: N. Z. 1915, ss. 38,
58. 89, 90; Tr. 1902, ss. 46, 47. 60, 61.

** Wilson v. Brightling (1885) 4 N. Z. C. A. 4; the enactment there
referred to is now Contained in N. Z. 1915, ss. 89, 90.

84 S. A. 1886, s. 152; V. 1915, s. 135; W. A. 1893, s. 95; N. Z.
1915, s. 91 ; J. 1888, s. 74.

88 See under "Voluntary Transactions," ante, p. 106; Aust. Torr.
Syst. 833, 835 ; Q. 1861. s. 109 ; P. 1913, s. 30.

88 See under " Conclusiveness of Register," " Forged and Invalid Instru-
ments," ante, pp. 97, 143 ; Aust. Torr. Syst. 825-828, and suppl. Addendum ;
Assets Co. v. Mere Roihi [1905] A. C. 176.

87 Wells v. District Land Registrar (1901) 21 N. Z. R. 215; West V.
Read (1913) 13 S. R. (N. S. W.) 575.

Sect. 1J TRANSFER ON SALE. 323

transfer of land subject to mortgage has already been referred to
under " Mortgages " ante, p. 270.

The transferee, . when registered, will get the benefit of any
appurtenant rights that belonged to his predecessor. Thus, the
right to receive water by a pipe line laid across adjoining land will,
if once appurtenant to a piece of land, pass to the transferee.88 But
it is possible that an implied easement might not pass by a trans-
fer of registered land, under circumstances in which it would have
passed had the land not been on the register.89

The transferee will not, under the enactments that vest in him
rights of action, be entitled to sue a lessee of his transferor for
breach of covenant already complete before the registration of the
transferee as owner.90

The remaining seven jurisdictions are: Fiji, Federated Malay
States, Manitoba, Saskatchewan, Alberta, North-West Territories,
Leeward Islands. Though varying in language, enactments in all
the statutes agree substantially in authorizing a registered owner to
transfer his land by the only method permitted — execution and
registration of an instrument in prescribed form; the land passes
only on registration of the instrument.91 In Federated Malay
States non-statutory methods of transfer are expressly prohibited
(s. 5), and in Leeward Islands any such method operates to confer
contractual rights only (s. 6). In Manitoba the instrument itself,
unregistered, confers only a right to registration, but on registra-
tion becomes embodied in and part of the register (ss. 89, 98).
In Manitoba (s. 91), Alberta (s. 46), and Xorth-West Territories
(s. 70), the unregistered transfer is only inoperative " as against
any bona fide transferee," and in Saskatchewan is not inoperative
" as against the person making the same " (s. 58). The differences
between these various enactments and the corresponding enact-
ments in the other ten jurisdictions (Xew South Wales, &c, ante,
p. 314), seem very slight for practical purposes, and there seems to
be no reported case in which any such differences have been regarded
as important, a case on mortgages is cited ante, p. 117, note 28.
Tn Fiji, Federated Malay States, and Leeward Islands, there is no
enactment on the subject of words of limitation, but in Manitoba,
Saskatchewan, Alberta, and Xorth-West Territories,92 words of

88 Taylor v. Browning (1885) 11 V. L. R. 158.

■* See Nelson v. Walker (1910) 10 C. L. R. 560, 578, 593.

"Measures v. HcFadyen (1910) 11 C. L. R. 723.

91 Fi. 1876 (1906). ss. 39. 41; F. M. S. 1911, ss. 5. 25, 29; M. 1913,
ss. 86, 88, 89, 91, 98; Sas. 1917, ss. 58, 74, 75: Al. 1906. ss. 41. 46. 48:
Can. 1906. ss. 70, 71, 76, 78, 79; L. Is. 1886 (1914), ss. 6. 20.

92 M. 1913, s. 88 ; Sas. 1917. s. 75 ; Can. 1906, s. 79 ; Alberta— Trans-
fer and Descent of Land Act (1906, c. 19), s. 3. Can. Torr. Syst. 229, 230.

324 SALE, TRANSFER, LEASE. [Ch. vn.

limitation are expressly made unnecessary , though in Alberta the
enactment is not contained in the registration statute. In no one
of these seven jurisdictions is the statutory instrument made, or
given the operation of, a deed.93

In Fiji, Saskatchewan, Alberta, and North-West Territories,94
the enactments authorizing transfer of the land also authorize the
transfer or creation of an easement by means of the statutory in-
strument of transfer. A reservation of mines may be made, and is
Fiji a short form of words having statutory effect may be inserted
in the transfer for that purpose.95 Only in Fiji is any express pro-
vision made for creating a registered life estate by transfer, and
even this is to be registered as an incumbrance on the fee simple.90
It may be however that in Manitoba and Saskatchewan, and more
especially in Alberta and North- West Territories,97 there is implied
permission given by the statutes to create registered life estates,
since these can be made the subject of initial applications. In
Manitoba the registered owner may transfer to himself jointly
with another, and " an executor or administrator may make a
valid transfer to himself individually " ; but such transfers appear
to be valid in other jurisdictions where there is no such express
authorization.98

In Fiji, Saskatchewan, Alberta, and North-West Territories,99
estates tail are abrogated by enactments which forbid their crea-
tion for the future ; the enactment in Alberta is not contained in the
registration statute.

In Saskatchewan a transfer to two persons beneficially will be
construed on the presumption that they take as tenants in common'
and not as joint tenants.1 In Saskatchewan, Alberta, and North-
West Territories,2 on a transfer to a man and his wife the trans-
ferees will not take by entireties unless so expressed in the transfer,
and husband and wife may transfer to each other ; these enactments
are merely the application to registered land of the new rule of law
introduced by the Married Women's Property Acts.3

93 As to Manitoba, &c. see Can. Torr. Syst. 234.

94 Fi. 1876 (1906), s. 41; Sas. 1917, s. 74; Al. 1906, 8. 48; Can. 1906.
s. 78. And see Can. Torr. Syst. 233.

95 Fi. 1876 (1906), s. 118. M Fi. 1876 (1906), ss. IK. 19.

97 M. 1913. s. 28; Sas. 1917, s. 31; Al. 1906, ss. 26 (5). 27; Can.
1906. ss. 54, 55.

98 M. 1913, s. 87. Re Lockhart (1912) 20 West. R. 413 (Sas.) ; Can.
Torr. Syst. 255 ; Hosken V. Danaher [1911] V. L. R. 214 ante, p. 316.

99 Fi. 1876 (1906). s. 15; Sas. 1917. ss. 198, 199; Can. 1906, s. 7;
Alberta— Transfer and Descent of Land Act (1906, c. 19), s. 9.

1 Sas. 1917. s. 197.

2 Sas. 1917, ss. 200. 201 ; Can. 1906. ss. 14, 15: Alberta— 1906. c. 19. ss.
7, 8. "See Fraser v. Don phis (190K) 40 ('an. S. C. R. 384.

Sect. 1] TRANSFER ON SALE. 325

Registered leases, mortgages, and charges may be transferred
in the same way as land, though in Manitoba there seems to be no
express provision for transfer of a lease; on registration the trans-
feree takes the rights and liabilities of his transferor.4 In Mani-
toba, Saskatchewan, Alberta, and North- West Territories, part of a
mortgage may also be transferred.

Provision is made (except in North-West Territories) for trans-
fer of mortgaged land to a purchaser on realization of the security
by sale. In Fiji and Federated Malay States the certificate of the
officer of the court who conducts the sale is treated as a transfer of
the land, and on its production the purchaser is registered as
owner; in Leeward Islands the court makes an order for registra-
tion of the purchaser and he is registered as owner accordingly.3 In
Manitoba, Saskatchewan, and Alberta,6 the mortgagee is authorized
to execute the necessary instrument on sale of the land, and on
registration of this instrument or transfer the interest of the
owner-mortgagor passes to the purchaser. In North-West Terri-
tories no provision is made for sale or transfer by a mortgagee, but
he must seek the aid of the court.7

Except in Manitoba, provision is made for transfer of land or
interests therein on sale under execution or order of court. In
Manitoba a registered judgment merely creates a lien, to enforce
which proceedings outside the registration statutes have to be
taken.8 In Fiji, Federated Malay States, and Leeward Islands,9
the transfer to the purchaser is signed by the proper judicial officer,
and when registered the interest of the debtor vests in the trans-
feree as in the Australian jurisdictions (ante, p. 317). In Sas-
katchewan, Alberta, and North-West Territories,10 a similar trans-
fer to the purchaser is made, but it must be confirmed by judge's
order, and is only registered after an interval of four weeks from
time of production at the registry. In Manitoba, Saskatchewan,
Alberta, and North-West Territories xl special provision is made

4Fi. 1876 (1906). ss. 46. 47: F. If. S. 1911, ss. 33, 34: M. 1913. ss.
109. 110: Sas. 1917. ss. 122-124; Al. 1906. ss. 66, 67: Can. 1906. ss. 104-
106: L. Is. 1886 (1914). ss. 64. 68.

5Fi. 1876 (1906), s. 67: F. M. S. 1911. s. 50: L. Is. 1886 (1914),
s. 82.

•M. 1913, ss. 120. 121 ; Sas. 1917. ss. 110, 111; Al. 1906. s. 62A (7, 9).

1 Can. 1906, s. 99. See under " Mortgages," ante, p. 252.

1 Manitoba— Judgments Act (R. S. 1913, c. 107) ; Can. Torr. Syst. 256.

»Fi. 1876 (1906). s. 91; F. M. S. 1911, s. 68 ; L. Is. 1886 (1914).
s. 108.

10 Sas. 1917, ss. 151-153; Al. 1906. ss. 79-81; Can. 1906. ss. 127-129.
Can. Torr. Syst. 257.

u M. 1913. ss. 50-52 ; Sas. 1917, ss. 152. 154-156 : Al. 1906. ss. 80, 82 ;
Can. 1906. ss. 128, 130. Can. Torr. Syst. 255. As to Ontario, ante, p. 310.

326 SALE, TRANSFER, LEASE. LCh. vu.

for registration of transfers of land on sale for arrears of taxes, and
the procedure in the three latter resembles that on sale under exe-
cution.

Plans form the subject of enactments in all these statutes. But
in Fiji and Federated Malay States a plan is only required to be
deposited at the registry upon the subdivision of land " for the
purpose of selling the same in allotments as a township," and in
Leeward Islands such deposit is only required at the discretion of
the registrar.12 The provisions in Manitoba, Saskatchewan, Al-
berta, and North- West Territories 13 are much more elaborate. In
Manitoba a sale of land by reference to a plan, if made before the
plan has been registered, is voidable at the option of the pur-
chaser,14 and this option may be exercised even after taking posses-
sion.15 In Alberta such a sale is prohibited and illegal, though the
illegality cannot be relied on if the plan has been registered at the
time of commencement of proceedings to enforce or set aside the
sale; a purchaser entitled to rely on the illegality of the sale can
(if he was not aware of the non-registration of the plan) recover
back his purchase money from his vendor.16 The registration of
a plan operates, in Manitoba, as a dedication of the roads on it to
the public use, and in Saskatchewan and Alberta such roads, &c,
vest in the iCrown.17 The plan becomes in effect part of the regis-
ter; but it cannot be used as an independent document by which
to create a private right in the nature of an easement.18

The method of registering the transferee as owner in Fiji and
Federated Malay States may vary, as in the Australian jurisdic-
tions (ante, p. 319), according as the whole or part only of the
land comprised in one certificate of title or folium of the register
is transferred.19 If only part be transferred, the transferee receives
a new certificate of title as a matter of course, and is thus regis-
tered on a separate folium; if the transferee takes the whole, he
may (at his own option) be registered on his transferor's folium,

12 Fi. 1876 (1906), s. 113; F. M. S. 1911, s. 84; L. Is. 1886 (1914),
s. 145.

M M. 1913, ss. 62-71 ; Sas. 1917, ss. 79-91 ; Al. 1906, ss. 53-53B, 124-130 ;
Can. 1906, ss. 83-87.

14 M. 1913, s. 64. So in British Columbia : B. C. 1911, s. 94.

"Chauncy v. Palmer (1916) 34 West. R. 978 (B. C).

14 Al. 1906, s. 124 (7, 8A) ; Boulevard Heights v. Veilleux (1915) 52
Can. S. C. R. 185.

17 M. 1913, s. 62 ; Sas. 1917, ss. 88, 89 ; Al. 1906, s. 126.

18 Smith v. Saskatoon (City) (1912) 21 West. R. 868 (Sas.) ; Sumner
v. Mcintosh [1918] 2 W. W. R. 293 (Sas.). For other eases applicable,
see ante, p. 319, as to Australian jurisdictions.

19 Fi. 1876 (1906), ss. 43, 44; F. M. S. 1911, ss. 30, 31.

Sect. 1] TRANSFER ON SALE. 327

and will simply receive the latter's certificate of title with a note
of the transfer endorsed. In the Fiji statute nothing is said about
the effect of this registration of the transferee on the former own-
er's folium of the register, nor is there any such precise statement
as in the Xew South Wales statute as to the rights and privileges
of the transferor passing to the transferee "upon the registration
of any transfer."20 The Xew South Wales case cited will not
therefore apply, but the general intention of the Fiji statute ap-
pears to be that the transferee, however registered, should have the
same warranty of title as the transferor had whilst registered as
owner.21 The Federated Malay States principal statute resembles
the Fiji statute on the method of registration, but any doubt as to
the effect of the registration of a transferee on the former owner's
folium has been set at rest by an amendment,22 and the transferee
now has the same warranty, however registered, as if he were
registered on a new folium and had received a certificate of title in
his own name.

In Manitoba the only method of registration expressly men-
tioned by the statutes seems to be the recording of the instrument
of transfer, and upon registration the instrument becomes part of
the register and creates or transfers the interest mentioned in the
instrument; it is however implied that registration on a new
folium must take place, since on transfer the certificate of title is
" delivered up for cancellation in whole or in part," though noth-
ing is said about the transferee receiving a new certificate of title.23
Xo provision is made for the transferee being placed in the same
position by being registered on his transferor's folium as if he were
registered on a new folium and received a certificate of title in his
own name.

In Saskatchewan, Alberta, North- West Territories, and Leeward
Islands,2* only one method of registration on transfer is referred

"N. S. W. 1900, s. 51; Phillips v. McLachlan (1884) 5 N. S. W.
168; ante. p. 320. With the New South Wales and other Australian sec-
tions contrast Fi. 1876 (1906). s. 47, which merely refers to "any
transfer of any mortgage." &c.

a See Phillips v. McLachlan. supra, and Port Stcettenham Rubber Co.
v. Lolce Yeic (1910"> Innes F. M. S. at p. 251: note 74 ante. p. 320. The
Malay decision will apply to the Fiji statute.

"F. If. S. 1913, s. 2. adding a clause to F. M. S. 1911, s. 30. This
amending statute was evidently passed in view of the doubt raised by the
conflict of judicial opinion in Port Swettenham Rubber Co. v. Loke Yew,
supra.

a Iff. 1913. ss. 86. 89. It is said in Can. Torr. Syst. 59 that a certifi-
cate of title is issued " upon each subsequent transfer." but the section
cited (s. 66. now Iff. 1913. s. 73) does not refer to this.

" Sas. 1917. ss. 77. 78 : Al. 1906. ss. 37. 50. 51 ; Can. 1906, ss. 81, 82 ;
L.Is. 1886 (1914), ss. 21. 23.

328 SALE, TRANSFER, LEASE. [Ch. vil.

to; the transferee is registered on a new folium, receiving a certifi-
cate of title in his own name, and nothing is said about his taking
his transferor's certificate of title.

No provision is made in these jurisdictions for registering life
estates or estates in remainder or reversion, in cases where these
are created by the statutory transfer, except in Fiji; and only in
Fiji is such creation expressly sanctioned or referred to (ante, p.
324).

The effect of the registration of the transfer in Fiji and Fed-
erated Malay States 23 is that the land or interest specified in the
instrument passes to the transferee; in the case of land the title
of the transferee is — in Fiji at any rate where registration on a new
folium is made — warranted expressly, and in the case of a mort-
gage, a charge, or a lease, the sight to sue in his own name (as in
the Australian jurisdictions) also passes to the transferee. In
each case the transferee is thus placed in the same position as his
transferor, and his estate and rights are governed by the provisions
relating generally to owners of registered interests.

In Manitoba, Saskatchewan, Alberta, and North-West Terri-
tories 2C the transfer on registration operates to pass the interest
specified in the instrument, even (in the case of land) against an-
other bona fide transferee, though this reference to " bona fide trans-
feree " is now omitted in the Saskatchewan statute (s. 58) ; in the
case of a mortgage, a charge, or a lease, the right to sue also passes,
as in the Australian jurisdictions. The transferee of land, by be-
ing in effect registered afresh, has the same statutory rights as
other registered owners, and this also seems to be the case with
regard to transferees of other interests. In Manitoba it is enacted
that the transferee takes any rights enjoyed by his transferor
under a party wall agreement (s. 96). Appurtenant rights gener-
ally in these jurisdictions will pass as in Australia (ante, p. 323).

In Leeward Islands the transferee of land is treated on regis-
tration as a new owner, and in the case of mortgages, &c., will
" enter into the whole rights of the transferor." 2"

Although the title of the transferee under a statutory transfer
is not complete until registration, yet if the transfer is made by
way of gift from the registered owner to the transferee, the gift is
complete on the execution of the transfer and delivery to the

23 Fi. 1876 (1906), ss. 14. 39, 47. 48; F. M. S. 1911, ss. 8. 25, 34,
35; 1913, s. 2.

28 M. 1913, ss. 88, 89, 91, 96, 110 111 ; Sas. 1917, ss. 58, 75, 124 ; Al.
1906. ss. 41, 46, 67, 68, and 1906, c. 19, s. 3: Can. 1906. ss. 70, 71, 76. 79,
106, 107. Sect. 67 of Sas. 1909 is not reproduced in the present statute.

27 L. Is. 1886 (1914), ss. 21, 22, 66. 68, 69.

Sect. 1] TRANSFER ON SALE. 329

donee, since what remains to be done — the registration — can be
done by the donee-transferee himself.28

SUB-SECTION 3 — TRANSFER IN BRITISH COLUMBIA AND BRITISH

HONDURAS.

In British Columbia and British Honduras no prescribed form
of instrument of transfer is made compulsory, although in each a
statutory form of transfer is optional as an alternative to an or-
dinary deed of conveyance. The statutory provisions of the two
jurisdictions on this subject have little else in common, and must
be dealt with separately.

BRITISH COLUMBIA.

The scheme of the statutes is that the sale of an interest in reg-
istered land may be completed either by an ordinary deed of con-
veyance or assignment, or by an instrument in a special statutory
form ; in either case the document need not (except when executed
by a corporation) be under seal, but must in all cases be attested,
and must be registered in order to pass the interest purporting to be
conveyed or assigned.1 Thus, notwithstanding the absence of the
enactments making the use of a prescribed form of transfer com-
pulsory, the formalities to be observed in order to make a transfer
or conveyance registrable are as stringent as in other jurisdictions.
In one respect, indeed, they are more stringent — with respect to the
description of the parcels and the furnishing of plans. The ven-
dor must so describe the property conveyed as to give the purchaser
a registrable document, and must furnish any plan required ; ela-
borate provisions are also made with respect to depositing plans on
subdivision, &c. ; transfer of small pieces of land can sometimes
only be made if the title is fully warranted.2

The execution, attestation, and registration of instruments is
dealt with under " Mortgages " ante, p. 276. When once regis-
tered the same warranty of title arises, whether the assurance has
been made by ordinary conveyance or by means of a transfer in
statutory form.3

Xotwithstanding the stringent provisions as to no interest in
land passing until registration, it has been held that an assignment

"* Anning v. Annimg (1907) 4 C. L. R. 1049. 1057. It is the task
of the transferee to effect registration: Commonwealth v. State of Neie
South Wales (1918) 25 C. L. R. 325; though the transferor is also
entitled to do so : /&. at pp. 340. 351.

1 B. C. 1911, ss. 51, 104, 106.

2B. C. 1911, ss. 61, 89-101.

* Hudson's Bay Ins. Co. v. Creelman [1919] 3 W. YV. R. 9 (Privy
Council), where a company, purchasing land ultra vires, was registered with
" indefeasible " title.

330 SALE, TRANSFER, LEASE. LCh. vu.

of mortgage does not require registration in order to make it valid
between the parties, and a further assignment can be registered
without the first assignment being registered;4 but the mortgage
was expressly distinguished from " land."

A vendor must also, if the conveyance is not to be completed
at once by reason of the purchase money being payable by instal-
ments, deliver to the purchaser a registrable document embodying
the contract, and must register his own title so that he can give the
purchaser a registered title; moreover, as in Manitoba, a contract
or conveyance by reference to an unregistered plan is voidable at
the option of the purchaser.5

Besides transfers of land and u charges " made by owners, there
is also provision for transfers to purchasers under sales for arrears
of taxes, and under sales by the sheriff to satisfy the claims of
judgment creditors.6 Special provision is made for a purchaser
at a tax sale getting a good title, and for dispensing with the pro-
duction of the certificate of title in the case of tax and execution
sales. When a tax sale purchaser is once on the register of " abso-
lute fees " he can subsequently be registered with " indefeasible "
or fully warranted title.7

Provision is made for transfer by a registered owner to him-
self jointly with others, and " a trustee under a will may make a
valid transfer to himself individually." 8 Words of limitation are
not required in order to confer estates of inheritance, and though
" in fee simple," * in tail," &c. may be used, their omission will not
prevent the whole interest of the transferor or grantor passing.9

The method of registering the transferee of land as owner is
by registering him on a new folium; no provision is made for con-
tinuing to use the folium and certificate of title of the transferor.10
In the case of " an assignment of a registered charge," the regis-
tration may be effected by substituting on the register the name of
the transferee for that of the former owner, the latter's name being
simply struck out "in red ink."11 Instruments, as distinguished
from title and persons, are spoken of as being " recorded," and are

*In re Standard Trust Co. (1916) 22 B. C. It. 538.

6B. C. 1911. ss. 61, 94. See M. 1913. s. 64. ante, p. 326: Chaunceij v.
Palmer (1916) 34 West. R. 978 (B. C).
- «B. C. 1911, ss. 36-40, 139.

'Temple v. North Vancouver Corp. (1913) 25 West. R. 245, 350
(B. C.) ; Ex p. Lamson (1915) 21 B. C. R. 507.

8B. C. 1911, s. 107. So an executor in Manitoba: see M. 1913. s.
87, and cases ante, p. 324.

9B. C. 1911, s. 107A.

10 B. C. 1911, ss. 102, 103.

11 B. C. 1911, s. 29 (2).

Sect. 1] TRANSFER ON SALE. 331

directed to be transcribed in full in proper books. Keferences to
these recorded instruments are made on the register proper or
" register books,'"' but such references have not the effect of regis-
tration.12 Life estates and estates in remainder can only be reg-
istered as " charges/' but these must necessarily appear on the
folium on which the owner of the fee simple (or it may be fee tail)
is registered.13 So as to sub-surface rights; these, if reserved by a
vendor, will appear on the purchaser's folium, notwithstanding the
prohibition against registration of sub-surface rights with inde-
feasible title.14

Although the statutory form of transfer is not made compul-
sory, it seems to be implied that it is only on the registration of
such an instrument that the estate and interest of the transferor
at once passes to the transferee ; the purchaser taking the ordinary
conveyance seems to have only the right of applying to be regis-
tered as the owner of the interest conveyed.15 In the latter case
the applicant for registration would, when registered, be on the
footing of an owner registered on initial registration ; in the former
the interest vesting in the new registered owner would be the inter-
est and warranted title of the former owner as modified by the in-
strument of transfer. If the interest transferred be a mortgage,
the statutory form of transfer vests in the transferee the right to
sue, as in other jurisdictions.

The registration statute itself contains an enactment 16 cor-
responding with the Voluntary Conveyances Act of England and
many other jurisdictions;17 in some of these the Acts are expressly
made applicable to registered land, but the fully warranted title
of a purchaser would seem, independently of these Acts, to be secure
from avoidance by any conveyance of a predecessor in title. The
inclusion in the registration statute itself of the voluntary con-
veyance enactment seems to place the matter beyond a doubt in
British Columbia, though it must be remembered that the statute
relates to the registration of instruments affecting both registered
and unregistered land.

Provision is made, as in some Australian statutes, for compel-
ling production of the certificate of title, when this is in the hands

u B. C. 1911. ss. 143, 144.
■ B. C. 1911, s. 53.

"Albernin Land Co. V. Registrar-General [1918] 2 W. W. R. 537
(B. C.) ; B. C. 1911. s. 17.

15 B. C. 1911, ss. 102, 104, 106.

16 B. C. 1911, s. 141.

" See Own. & Inc. 229 ; Aust. Torr. Syst. 835 ; ante, p. 110.

332 SALE, TRANSFER, LEASE. [Ch. vit.

of a mortgagee and the owner wishes, to effect registration of an
interest subject to the mortgage.18

BRITISH HONDURAS.

The British Honduras statute contains little relating to trans-
actions with land when once on the register. The register is made
the foundation of all legal title to the land, equitable interests be-
ing protected by caveat only; a transfer, registered, is a sufficient
conveyance — though no form of transfer is prescribed — and the
transferee when registered takes free of any unregistered incum-
brance.19

SECTION 2 — LEASES.

SUB-SECTION 1 ENGLAND, IRELAND, ONTARIO, BRITISH COLUMBIA,

BRITISH HONDURAS.

In the five jurisdictions above-mentioned no provision is made
for a lease being in prescribed form, and only in Ireland and Brit-
ish Columbia x is express provision made for registration of leases.
In England and Ontario 2 only notice, and not the lease itself, is
registered. These observations are not concerned with registered
" leasehold land "in England, Ireland, or Ontario, where the owner
is registered in the same way as owners of freehold land.

In British Honduras no special provision at all is made with
respect to leases, and they are only once mentioned in the regis-
tration statute.3

Other enactments in the statutes of England, Ireland, Ontario,
and British Columbia 4 relate only to the removal from the register
of leases no longer operative, and to the validity of certain occupa-
tion leases as against the registered title. The latter subject is
dealt with under " Possession," ante, p. 90.

In Ireland the registration of a lease is merely the registration
of a burden, conferring priority according to priority of registra-
tion but in itself carrying no warranty of title.5 No special mode
of execution appears to be required, as is required in the case
of transfers and charges.

18 B. C. 1911, ss. 87, 88. 19 B. II. 1914, ss. .10, 31. soh. D r. 12.

'I. 1891, s. 47; B. C. 1911, ss. 20A, 29 (1).

2Eng. 1875, ss. 50, 51; 1903-8 Rules, rr. 201-206. On. 1914, s. 70.
Own. & Inc. 125-128. 3 B. H. 1914, s. 15.

4Eng. 1875, ss. 18 (7), 20; 1903-8 Rules, rr. 218-222. I. 1891, s. 45.
On. 1914, s. 24 (d). B. C. 1911, ss. 22 (1) (d) , 29 (1), 104-106, 149, 150.

s I. 1891, ss. 44, 45, 46, 49.

Sect. 2] LEASES. 333

In British Columbia a lease is registrable as a " charge " (in
the wide sense given to the word in the registration statute), and
requires to be executed in the same manner as other registrable
instruments.6 Although, except for short occupation leases, reg-
istration is essential in order to pass any interest in the land to the
lessee, the registration only confers the limited warranty of title
that is conferred by the registration of any other charge.7 A lease
cannot be registered as a charge unless the lessor is registered as
owner, though this has been held not to apply to leases from the
Crown.8

SUB-SECTION 2 — THE STATUTORY LEASE.

The present sub-section has to do with the seventeen jurisdic-
tions in which provision is made for leases in prescribed form be-
ing registered. These seventeen are: The nine Australasian jur-
isdictions, Federated Malay States, Trinidad-Tobago, Jamaica,
Leeward Islands, and four Canadian — Manitoba, Saskatchewan,
Alberta, North-West Territories.

The statutes in all seventeen expressly authorize the creation
of leases by means of the execution and registration of an instru-
ment in prescribed form, and in every one a distinction is drawn
between ordinary leases and leases for short terms (three years
or one year). There is however a lack of complete uniformity in
the statutory provisions. The short term leases are, cither ex-
pressly or impliedly, excepted from the necessity of being regis-
tered,1 but in South Australia, Queensland, Papua, New Zealand,
Fiji, Federated Malay States, and Trinidad-Tobago,2 express or
implied permission is given for their registration, and the benefit
of an option of purchase may be lost to the lessee for want of reg-
istration— at any rate in South Australia, Papua, Fiji, Federated
Malay States, and Trinidad-Tobago. In Trinidad-Tobago "no
lease, unless registered, shall be valid against any registered trans-
feree," &c. (s. 68), but this may refer to statutory leases only.

The majority of the statutes enact that an ordinary lease by the
owner of the land " shall " be created by the statutory method, the

«B. C. 1911. ss. 2. 20A. 77-83. And see under "Mortgages" ante,
p. 276. TB. C. 1911. ss. 34, 104.

8B. C. 1911. s. 35: Re Canadian Explosives [1918] 1 W. W. R. 399
(B. C).

1 " Tenancies and Occupation Leases.'' ante, p. 90 ; Aust. Torr. Syst.
811-815.

2S. A. 1886, ss. 116, 119; Q. 1861. s. 52. and 1877. s. 18: P. 1913.
ss. 41. 42; N. Z. 1915, s. 93 :• Fi. 1876 (1900), ss. 49. 50: F. M. S. 1911,
ss. 36. 37 : Tr. 1902, ss. 67, 68.

334 SALE, TRANSFER, LEASE. [Ch.vii.

permission to create short registrable leases (when given) being
given by use of the word " may." In four jurisdictions — Victoria,
Western Australia, Jamaica, Manitoba 3 — the word " may " is used
instead of " shall " in reference to leases in general, but the mean-
ing is the same, and the direction that ordinary leases are only
to be created by the statutory method is as peremptory as if
" shall " were used.4 In the six remaining — New South "Wales,
Tasmania, Leeward Islands, Saskatchewan, Alberta, North-West
Territories 5 — the word " shall " is used, and no reference is made
to excepted short leases being registrable.

In the majority of statutes a lease for " life or lives/' as well as
a term of years, may be created, but in five jurisdictions — Victoria,
Western Australia, Fiji, Federated Malay States, Leeward Islands
— this reference to leases for life or lives is omitted.

In Victoria, Western Australia, and Jamaica,6 the lease is re-
ferred to as being a lease of " freehold " land, and a separate enact-
ment makes the statute applicable to leasehold land in the same
way as to freehold. In other jurisdictions the word " land " only
is used, and this includes leasehold when placed on the register as
a subject of substantive ownership.

Leases may also be made by mortgagees, and by owners sub-
sequently to the registration of a mortgage. These matters are
dealt with under " Mortgages " ante, pp. 249, 270.

Leases may be made by persons who are neither owners nor
mortgagees, where express authority is conferred by statutes other
than the registration statutes, and the lease operates without reg-
istration. Such is the case of a lease made by a local government
authority in performance of a power to realize unpaid rates.7

The statutory lease so far differs from the statutory transfer and
the statutory mortgage that it operates precisely as a lease of un-
registered land does. The transfer differs in many respects from
an ordinary conveyance, and the mortgage differs from an ordinary
mortgage chiefly in being by way of charge only. The lease re-
sembles a non-statutory lease in that it vests the land in the lessee
for the term specified in the instrument, subject to payment of
rent and observance of covenants, &c, just as in the case of unreg-

5 V. 1915, s. 131 ; W. A. 1893, s. 91 ; J. 1888, s. 70; M. 1913, ss. 78 (d),
101.

4 Crowley v. Templeton (1914) 17 C. L. R. 457.

•N. S. W. 1900, s. 53; Tas. 1862, s. 47; L. Is. 1886 (1914), s. 56;
Sas. 1917, s. 92 ; Al. 1906, s. 54 ; Can. 1906, s. 88.

9 V. 1915, ss. 38, 131 ; W. A. 1893, ss. 39, 91 ; J. 1888. ss. 34. 70.

T Kirkham v. Julian (1885) 11 V. L. R. 171, referred to in Aust.
Torr. Syst. 847.

Sect. 2] LEASES. 335

istered land. The differences are that the estate vests by virtue of
the registration and not of any technical words such as " demise "
in the instrument, that the instrument (like other statutory in-
struments) need not be under seal, and that certain rights and
liabilities are given to and imposed on lessor and lessee respectively
by the statutes themselves.

Since the statutory lease approximates more closely in form and
mode of operation to assurances of unregistered land than do either
the statutory transfer or the statutory mortgage, there is less doubt
as to what parts of the general law — statute and non-statute law —
apply to the statutory lease, and less difficulty in applying them.

There is the same substantial uniformity in the prescribed form
of lease as in the case of transfer and mortgage. In all seventeen
jurisdictions the instrument contains a statement as to lessor
being the registered owner of the land, and the operative word
a lease " is used, the land being expressed to be leased to the lessee
to be held by him for a specified term at a specified rent. In every
jurisdiction but Leeward Islands the prescribed form also contains
directions to insert either special clauses or modifications of im-
plied clauses, and in some cases both, the reference to " special "
clauses being omitted in Fiji and Federated Malay States, and
" modifications " only being referred to in these two.

The instrument of lease, in order to be registrable, must pur-
port to be made in pursuance of the registration statute. This is
usually indicated by the statement that the lessor is the registered
owner of the land. A lease which makes no reference to the proper
statute, but does refer to a statute relating to unregistered land,
differs in substance from the prescribed form and is not registrable
as a statutory instrument.8

Unlike the mortgage in this respect, the prescribed form of
lease itself contains no covenants or clauses beyond the operative
word " lease " and statement of the length of term and amount of
rent. But in every jurisdiction except Leeward Islands 9 certain
covenants, &c, are implied in the instrument, viz. on the part of
the lessee a covenant to pay rent, to pay (except in Saskatchewan)
rates and taxes, to keep in repair; also power for the lessor to
enter and view the state of repair and re-enter on default or breach
of covenant. In Trinidad-Tobago and Manitoba 10 (where there
is no substantive enactment authorizing modification of implied

8 Crowley v. Templeton (1914) 17 C. L. R. 457: Shore v. Green (1890)
0 Man. R. 322. where the court was divided.

• The " ordinary legral remedies " of lessor and lessee seem intended
to be made use of: see L. Is. 1886 (1914). s. 58.

10 Tr. 1902. ss. 71. 72 : Iff. 1913. ss. 102. 103.

336 SALE, TRANSFER, LEASE. [Ch. vn.

covenants generally) these implied covenants and powers only take
effect so far as the instrument itself does not shew a contrary in-
tention, and this is so in the other jurisdictions. In South Aus-
tralia, Fiji, and Federated Malay States,11 a power in the lessor
" to distrain according to law " is also included in the implied
] towers conferred by the lease, but there seems hardly room for
doubt that such a power exists in all jurisdictions; in Federated
Malay States there is also implied a covenant by the lessor to pay
the iState quit rent. In Queensland and Papua 12 the covenant to
pay rent is suspended on the destruction of a demised building by
fire, &c, without the lessee's default,13 though in Queensland this
provision does not apply to a lease of settled land by a tenant for
life. In the remaining jurisdictions — New South Wales, Tas-
mania, Victoria, Western Australia, New Zealand, Jamaica, Sas-
katchewan, Alberta, North- West Territories 14 — only the covenants
and powers first above mentioned are implied, together with au-
thority to modify or negative them, with some variations in de-
tail ;15 in Saskatchewan, for instance, no covenant to pay taxes is
implied.

Though the contrary view is supported by some judicial opin-
ion,16 it has been definitely held that these implied covenants can
be so incorporated into the instrument of lease that an action may
be brought for their breach, notwithstanding that the lease is not
registered ;17 this construction places the implied covenants, &c,
on precisely the same footing as clauses expressly introduced into
the instrument and not merely implied by virtue of its registration.

Whilst all the statutes (except that of Leeward Islands) in
general terms permit the introduction into the statutory lease of
special clauses, in eleven jurisdictions — New South Wales, Queens-
land, South Australia, Tasmania, Papua, New Zealand, Fiji,
Trinidad-Tobago, Saskatchewan, Alberta, North-West Territor-

11 S. A. 1886, ss. 124, 125. 262; Fi. 1876 (1906). ss. 52, 53, 114;
F. M. S. 1911, ss. 39, 40, 85.

12 Q. 1861. ss. 70. 71, 76: 1877. s. 31; 1886. s. 69 (7). P. 1913, ss.
76. 77, 78, 83.

13 This has been held (in an inferior court only) to apply to any ten-
ancy, even though under an unregistrable lease: Hill v. Vox (1881) 1
Q. L. J. 78.

UN. S. W. 1900, ss. 78. 79, 80; Tas. 1862, ss. 49. 50, 90: V. 1915.
ss. 132, 133, 176 ; W. A. 1893, ss. 92, 93, 131 : N. Z. 1915. ss. 97. 98. 166 :
J. 1888, ss. 71, 72, 100 ; Sas. 1917, ss. 65, 93, 94 ; Al : 1906, ss. 55, 56. 131 ;
Can. 1906, ss. 89, 90, 172.

,sAust. Torr. Syst. 832; Can. Torr* Syst. 352 (written before the
passing of Sas. 1917, s. 93).

"See Munro v. Adams (1891) 17 V. L. R. 703; Aust. Torr. Syst. 908.

"Telfcr v. Fisher (1910) 15 West. R. 400 (Al.).

Sect. 2] LEASES. 337

ies 18 — express permission is given to introduce a clause giving the
lessee an option of purchasing the land. In Federated Malay States
this permission seems to be implied by the statute,19 but the statutes
are silent on the subject in Victoria, Western Australia, Jamaica,
and Manitoba, and of course also in Leeward Islands. On prin-
ciple, though there appears to be no authority in point, the general
permission to introduce special clauses would seem to include an
option of purchase in those jurisdictions in which the statutes say
nothing of it.20 Where the clause is expressly permitted, it seems
clear that the option of purchase is so far an integral part of the
lease that a duly registered transferee from the lessee would be
protected and entitled to exercise the right of purchase even if the
lessor had inserted the clause wrongfully.21 And, notwithstand-
ing a decision to the contrary, the right principle seems to be
that the lessee, if duly registered, can himself have specific per-
formance of the contract.22 The option, though assignable and
exercisable by the lessee's transferee,28 is usually made exercisable
only during the currency of the lease; but this condition may be
implied, so as to prevent the option being one for an indefinite
time.24 All these considerations seem to apply in those jurisdic-
tions in which the option of purchase is not mentioned in the
statutes.

The option of purchase, if it once becomes a binding contract of
sale, can be enforced by the lessor as well as the lessee, and the fact
that the lessee has mortgaged his lease will be no defence to an
action for specific performance by the lessor.25 The transfer of
the fee simple to the lessee, in such a case, will not have the effect
of merging the mortgage and lease, but both lease and mortgage

MN. S. W. 1900, s. 53; Q. 1861. s. 61: S. A. 1886. s. 117: Tas. 1862.
s. 47: P. 1913, s. 41: Fi. 1876 (1906), s. 49: Tr. 1902, s. 67; Sas. 1917. s.
92 ; Al. 1906. s. 54 ; Can. 1906, s. 88.

» F. M. S. 1911. ss. 36, 37.

"See Crowley v. Templeton (1914) 17 C. L. R 457. 466, where the
general principle is laid down that the parties to a lease are free to make
their own bargain, much as in the case of a mortgage in In re Goldstone's
Mortgage [1916] N. Z. R. 489, 500. And see Bucknull v. Reid (1876) 10
S. A. R. 188, where a beer covenant was introduced into a lease.

2XRutu Peehi v. Davy (1890) 9 N. Z. R. 134. 151; St. Germain v.
Reneault (1909) 12 West. R. 169 (Al.).

Tela v. Knowles (1906) 26 N. Z. R. 604 ; Home v. Home, ib. 1208,
1218. The contrary decision is St. Germain v. Reneault, supra.

aIn re Clark and Harvey (1868) 10 S. A. R. 191; Shearer v. Wilding
(1915) 15 S. R. (N. S. W.) 283.

" Shearer v. Wilding, supra.

"Bevan v. Dolson (1906) 26 N. Z. R. 69.

B.T.L. — 22

338 SALE, TRANSFER, LEASE. [Ch. vil.

will appear noted on the register, though the freehold title is vested
in the lessee as registered owner of the land.26

The construction of both implied and expressly introduced
clauses in the lease is affected, in some jurisdictions, by enactments
which purport to make covenants, &c, in statutory instruments
binding on the successors in title of the parties. The jurisdictions
referred to are the seven Australian, New Zealand, and Jamaica.
In others there are no corresponding enactments. In New South
Wales, Queensland, South Australia, Tasmania, Papua, and New
Zealand,27 an interpretation clause provides that the description
of a person as " lessor," " lessee/' includes the " heirs, executors,
administrators, and assigns " of the person named. The effect of
the enactment is to make covenants, &c, in a lease binding on the
assigns of both lessor and lessee, as though assigns were expressly
named.28 In Victoria, Western Australia, and Jamaica,29 there
is no such interpretation clause, but by a substantive enactment
transferees are given " the same estates, rights, powers, and reme-
dies," and are " subject to the same engagements, obligations, and
liabilities," as if they had been the original proprietors, lessees, &c.
This appears to have the same effect as an enactment30 making a
covenant binding on " transferees." The mention (expressly or
impliedly) of " assigns " is not, however, necessary to make rights
of property assignable,31 and this of course applies in jurisdictions
whose statutes do not contain these enactments.

Except in Federated Malay States, Leeward Islands, and Mani-
toba, the statutes authorize the use of certain short forms of cove-
nant, the full meaning of which is set out in the statute. In New
South Wales, Queensland, South Australia, Tasmania, Victoria,
Western Australia, Papua, New Zealand, Fiji, and Jamaica,32 there
are twelve of these covenants, in Trinidad-Tobago, Alberta, and
North- West Territories five, and in Saskatchewan six.33 In South

24 Sevan v. Dobson, supra. Compare Capital and Counties Bank v.
Rhodes [1903] 1 Ch. 631, 647; Aust. Torr. Syst. 937.

41 N. S. W. 1900, s. 3 ; Q. 1861, s. 3 ; S. A. 1886, s. 3 ; Tas. 1862. s. 3 ;
P. 1913, s. 5 ; N. Z. 1915, s. 222.

"Dunbar's Off. Assignee v. Deal (1888) 7 N. Z. R. 9.

29 V. 1915, s. 269 : W. A. 1893, s. 228 : J. 18S8, s. 106. And see Aust.
Torr. Syst. 921.

30 A case on such an enactment is Seabrook v. McMullan (1908^ 10
W. A. R. 47.

31 Shearer v. Wilding (1915) 15 S. R. (N. S. W.) 283.

"N. S. W. 1900, s. 81: Q. 1861, s. 73; S. A. 1886, s. 265, sch. 16:
Tas. 1862. s. 65; V. 1915, s. 134. sch. 10; W. A. 1896. s. 94. sch. 12:
P. 1913, s. 80: N. Z. 1915. s. 165, sch. 6; Fi. 1876 (1906), s. 55, sch. E:
J. 1888, s. 73. scb. 7.

MTr. 1902, s. 79; Al. 1906, s. 58. sch. L; Can. 1906, s. 92. sch. M
Sas. 1917. s. 96, f. O.

Sect. 2] LEASES. • 339

Australia and Xew Zealand express permission is given in the
statutes to modify these short forms; in Victoria, Western Aus-
tralia, Fiji, Jamaica, Saskatchewan, Alberta, and Xorth-West
Territories, the forms may be modified, and the covenants are to be
construed as made with the lessor and his transferees and binding
on the lessee's transferees. These provisions are probably implied
in other jurisdictions.

The twelve covenants above referred to in New South Wales,
&c, are the following: To insure against fire; to paint outside;
to paint and paper inside; to fence; to cultivate; not to use as a
shop; not to carry on offensive trades; not to assign or sub-let
without leave ; not to cut timber ; to conduct publican's business in
an orderly manner; to apply for a renewal of license; to facilitate
transfer of license. The five covenants in Trinidad-Tobago are:
To insure; not to use as a shop; not to carry on offensive trades;
not to assign; not to cut timber. The five in Alberta and North-
West Territories are: not to assign; to fence; to cultivate; not to
cut timber; not to carry on offensive trades. These five are also
in Saskatchewan, with a sixth being a covenant to pay taxes. These
covenants are, in the different jurisdictions, drafted in almost
identical words. The only two that require special notice here are
the covenant to insure and the covenant not to assign.

The covenant to insure is one to insure against fire " build-
ings " — in Jamaica " buildings, fixtures, and machinery " — either
* erected " on the land, or which are " for the time being erected."
In South Australia, Victoria, Western Australia, Fiji, and Ja-
maica, the expression is " for the time being erected," in other
jurisdictions simply " erected." But the two expressions mean
the same thing, and the lessee must, if bound to insure buildings
"erected," insure all buildings that at any time during the cur-
rency of the lease are erected on the land.34

The covenant not to assign binds the lessee not to transfer or
sub-let without the previous consent in writing of the lessor. The
construction of this covenant is not quite the same as in the case of
unregistered land under the general law. Since a statutory mort-
gage of registered land is a charge only and not a conveyance, the
covenant is not broken by a mortgage in statutory form being ex-
ecuted and registered.35 And since an unregistered instrument of
transfer or lease — except certain short leases — does not operate to
pass any actual estate in the land, even a transfer or sub-lease

uReid v. Smith (1905) 3 C. L. R. 656. 662. 681.

^Seabrook v. McMtdlan (1908) 10 W. A. R. 47. This is in accord-
ance with the principle underlying all systems in which a mortgage is a
charge and not a conveyance: see Josef v. Mulder [1903] A. C. 190.

340 SALE, TRANSFER, LEASE. [Ch.vii.

executed by the lessee — not being a short lease operative without
registration — will not, unless registered, constitute a breach of the
covenant in the above form.30 If the covenant binds the lessee not
to mortgage, a registered mortgage in statutory form will constitute
a breach, but not the mere execution of the mortgage without regis-
tration.37 A covenant simply not to transfer or sub-let is not
broken by parting with the possession of the land,38 but of course
there is nothing to prevent another form of covenant being used
under which any parting with the possession would be a breach,
and some of the statutory covenants are to this effect.39

As under the general law, a transfer or assignment by operation
of law is not affected by a covenant against assignment.40

Others of the covenants which may be introduced into the lease
by means of the statutory short forms require no special mention.
Questions arising under these, as well as other questions on the
construction of leases, are frequently decided without any special
application of the principles governing registration of title or the
registration statutes themselves. In a case already cited, for in-
stance, the question was raised whether the covenant to carry on a
licensed victualler's business was broken by the lessee ceasing to
carry on the business personally, and it was held that there had
been no breach.41 So questions have been dealt with, in cases of
leases of registered land, relating to covenants to keep books and
returns of gold in gold-mining,42 covenant by lessor to pay the
value of buildings at the expiration of lease,43 covenant by lessee to
" forthwith " complete alterations in buildings,44 option of pur-
chase,45 the inclusion of furniture in a lease of land,46 to what
extent buildings, &c, must be attached to the soil,47 whether a

""Naumberg v. Albertson's Executors (1889) 3 Q. L. J. 125; Martin
v. Coultas [1911] S. A. R. 1; Macindoe v. Wehrle (1913) 13 S. R. (N. S.
W.) 500.

8T Tattley v. Cooper (1905) 25 N. Z. R. 18.

8S Seabrooh v. McMullan, supra.

"Martin v. Coultas, supra; McEacharn v. Colton [1902] A. C. 104;
Staehr v. Federal Lime Co. [1912] S. A. R. 102.

40 Ex p. Bond (1880) 6 V. L. R. L. 458; Ex p. Ellison (1879) 5
V. L. R. L. 59.

41 Seabrooh v. MoMullan, supra.

"Baker's Creek G. M. Co. v. Hack (1894) 15 N. S. W. Eq. 207.
"Dunbar's Off. Assignee v. Deal (1888) 6 N. Z. R. 636, 7 ib. 9.
** Measures v. McFadyen (1910) 11 C. L. R. 723.
"Shearer v. Wilding (1915) 15 S. R. (N. S. W.) 283.
48 Crowley v. Templeton (1914) 17 C. L. R. 457, 464.
«Reid v. Smith (1905) 3 C. L. R. 656 r Pukuweeko Saw Mills v.
Winger [1917] N. Z. R. 81.

Sect. 2] LEASES. 341

document is a sub-lease or an assignment,48 what trees are included
in ** timber," 49 whether a clause is a " covenant " or a " condi-
tion," 50 construction of covenants to repair an hotel.51

Although registration of the lease, which answers to the vesting
of the legal term under the general law, is necessary for the com-
plete security of both lessor and lessee, yet the unregistered lease is
for many purposes effective,52 and more so than either transfer or
mortgage unregistered. This is shewn in actions for rent, actions
on covenants, and proceedings for relief against forfeiture.

Where the lease (unregistered) contains an express covenant to
pay rent and the lessee goes into occupation, an action for the rent
will sometimes lie, and the lessor will recover either by virtue of
the covenant or under a claim for use and occupation.53 This
seems to be so in all jurisdictions where law and equity are admin-
istered concurrently . on the same side of the court. And it may
be that in those jurisdictions the lessor could recover rent from a
lessee in possession, even if the unregistered lease contained no
express covenant for payment.54 Where law and equity are admin-
istered concurrently the doctrine of Walsh v. Lonsdale 55 applies,
so that a lessee in possession under a written agreement and en-
titled to specific performance is in the same position as if he had
a duly registered lease.58 But in some jurisdictions (of which New
South Wales is an example) law and equity are not administered
concurrently, and accordingly a lessor's action on a covenant for
rent might be defeated by reason of the lease not being registered,
since at common law rent issues out of the land, and in the absence
of a legal demise no rent is due.57

** Miller v. Commr. for Railuxiys (1900) 2 W. A. R. 38.

"Munday v. Prowse (1878) 4 V. L. R. 101.

"Sanders v. Wadham (1870) 4 S. A. R. 73.

*xMessiter v. Wollerman (1907) 27 N. Z. R. 589.

"Otago Harbour Board v. Spedding (1885) 4 N. Z. S. C. 272; Waitara
v. McGovern (1899) 18 N. Z. R. 172; Moore v. Public Trustee (1900)
20 N. Z. R. 288. See Aust. Torr. Syst. 932.

"Munro v. Adams (1891) 17 V. L. R. 703. See Bank of New South
Wales v. Palmer (1881) 2 N. S. W. 125, where the mortgagees sued, and
the lessee was not registered.

64 See Telfer v. Fisher (1910) 15 West. R. 400 (Al.), cited in note
17 ante, p. 336.

55 (1882) 21 Ch. D. 9. Compare the position of a tenant in possession
in some jurisdictions as against the registered owner, after a contract for
sale of the land to the tenant : Aust. Torr. Syst. 812 ; ante, p. 92.

"Timaru {Mayor) v. Hoare (1898) 16 N. Z. R. 582; Dufaure V.
Kenealy (1908) 28 N. Z. R. 269; Davis v. McGonochie (1915) 15 S. R-
(N. S. W.) 510, 515, where the difference between New South Wales and
other Australian jurisdictions is pointed out.

"Johnson v. Billyard (1890) 11 N. S. W. 319, a New South Wales
case on a lease of land in Fiji ; Davis v. McConochie, supra.

342 SALE, TRANSFER, LEASE. [Ch. vii.

The cases first cited illustrate the liability of the lessee on his
covenants in an unregistered lease. The lessor is also liable on his
covenants in the same way. Thus, where the lease contained a cove-
nant for quiet enjoyment and the lessor transferred to a purchaser,
whose registration enabled him to hold the land free of the un-
registered lease, the lessee recovered damages from the lessor for
breach of the covenant for quiet enjoyment.68

Apart from the effect on unregistered leases of the concurrent
administration of law and equity, rent may be recovered even under
an unregistered lease which is void, where the lessee has taken pos-
session and already paid some rent.69

Relief against forfeiture has been given in cases where the trans-
fer of a registered lease was itself unregistered,60 and where neither
lease nor transfer were registered.61

The necessity for registration of a lease, in order to confer a
complete title on both parties, arises in most jurisdictions by reason
of the enactments which declare that no estate in the land passes
by an unregistered instrument.62 In Trinidad-Tobago, Fiji, and
Federated Malay States63 — though the enactment seems unneces-
sary— it is expressly enacted that a lease is not " valid " unless
registered. The effect of registration is precisely similar to the
legal vesting of the term in the lessee under the general law,64 and
both parties then have the rights and liabilities conferred by the
general law of landlord and tenant.

The method of registration of leases and transactions with them
differs in some respects from that of transfers and mortgages, and
varies in different jurisdictions. Although a registered lease made
by the registered owner of land creates the same leasehold estate as
is enjoyed under a lease by virtue of which the lessee (not taking
from a registered owner) is registered after formally making an
application for initial registration, yet in the latter case the les-
see's interest is usually spoken of as " leasehold land." The refer-
ence here is not to this "leasehold land," but to interests under
leases made by lessors already on the register.

In eight jurisdictions — New South Wales, Queensland, South
Australia, Papua, New Zealand, Fiji, Federated Malay States,

58 Shore v. Green (1890) 6 Man. R. 322, referred to in Can. Torr.
Syst. 179.

™Otago Harbour Board v. Spedding (1888) 4 N. Z. S. C. 472.

60 Tucker v. Armour (1907) 6 West R. 93 (N. W. T.).

aiDufaure v. Kenealy (1908) 28 N. Z. R. 269.

62 Davies v. McConochie, stipra. For the enactments, see ante, pp. 113-
116.

88 Tr. 1902, s. 68; Fi. 1876 (1906), s. 49 (1) ; F. M. S. 1911, s. 36.

"Davis v. McConochie, supra.

Sect. 2] LEASES. 343

Jamaica 65 — no special reference to the method of registering leases
is made by the statutes, and the relevant enactments are those that
provide for all registered transactions being entered on the owner's
folium of the register; among the sections cited, one in Xew South
"Wales provides for even transactions with leasehold land being
entered on the freehold register (when constituted). The regis-
tered lease is thus, though not actually so referred to, regarded by
these statutes as an incumbrance on the lessor's land and regis-
tered ownership.

In Tasmania 66 these enactments are supplemented by others
specially referring to leases, by which in effect a lease may be reg-
istered independently of the lessor's register, much as though it
were leasehold land in an initial application. In Victoria 6T nearly
the same result is attained by provisions that allow transactions
with a lease to be registered on the lease itself instead of on the
lessor's register; leases may also be registered in triplicate, and
provision is made for a separate sub-lease register. In Western
Australia 6S provision is also made for a sub-lease register, and
leases may be registered in triplicate. In Trinidad-Tobago 69 the
enactments are the same as in Xew South Wales, with the addi-
tional provision (apparently unnecessary) that a lease, when pre-
sented for registration, is to be " endorsed as an incumbrance on "
the lessor's register.

The remaining five jurisdictions all contain special reference to
registration of leases. In Leeward Islands 70 a lease is to " be
deemed an incumbrance " for some purposes, and is to be entered
on the lessor's register. In Manitoba 71 the lease is to be registered
independently of the lessor's register, somewhat as in Tasmania.
In Saskatchewan, Alberta, and North- West Territories 72 also, the
registration of the lease may be made independently ; in Saskatche-
wan, " upon registration of the leasehold title " the lessor's certifi-
cate of title is to be retained in the registry on behalf of all persons
interested in the land, lessor and lessee being each entitled to a cer-
tificate of the registration of the lease.

•N. S. W. 1900, ss. 32, 34, 35; Q. 1861. ss. 32, 34; S. A. 1886, ss. 49.
50; P. 1913, ss. 17, 20: N. Z. 1915. ss. 33, 34; Fi. 1876 (1906), ss. 32,
34; F. If. S. 1911, ss. 18, 20; J. 1888, ss. 40, 43.

■ Tas. 1862, ss. 31, 34 ; 1893, ss. 10-12.

67 V. 1915, ss. 47, 51, 52, 54, 140. 141.

68 W. A. 1893, ss. 48, 52, 54. 100, 101.
49 Tr. 1902, ss. 33, 38, 40, 69.

70 L. Is. 1886 (1914), ss. 56. 58.

"It, 1913, s. 101.

"Sas. 1917, s. 92 (2, 9) ; Al. 1906. s. 26 (5) ; Can. 1906, s. 54.

344 SALE, TRANSFER, LEASE. [Ch. VII.

The lease, so far as relates to any warranty of title conferred
on the lessee, will stand on the same footing as a mortgage — if
merely registered on the lessor's register folium (as to which see
ante, p. 201). If registered independently of the lessor's owner-
ship, the lessee will get the .benefit of the warranty of title secured
to him by the statutory provisions relating to conclusiveness of the
register (ante, p. 96) : The registry officers are justified in refus-
ing to register a lease that is clearly invalid.73 As to whether an
invalid transfer of a lease should be accepted for registration,
judicial opinion is not uniform. Thus a transfer of lease made in
breach of a covenant against assignment has been held to be rightly
refused registration in Tasmania, though a contrary decision has
been given in New Zealand.74 Apparently a transferee, although
registered, would only be entitled to rely on his registration as
against the lessor if he took without notice of a breach of cove-
nant.75 The case of a lessee liable to re-entry for default must be
taken to be excepted from the warranty conferred by registration,
and in most jurisdictions this is expressly provided for — in all
seventeen except Leeward Islands and Federated Malay States.
Thus, in South Australia and Fiji 76 special provision is made for
recovery of possession by lessor from lessee in default, and in the
remaining thirteen the case of lessor against lessee is excepted in
the enactment which prohibits possession of land being recovered
from a registered owner.77 It is not however every default of a
lessee that gives a lessor the right to recover the land, but only a
default under which by the terms of the lease the lessor can re-
enter.78

Though in general the law of landlord and tenant applies to
leases of registered land, this law is necessarily modified to some
extent by the machinery of the registration system, and in some
instances the general statutes embodying landlord and tenant law
expressly enact that certain provisions are to apply to registered

™Rex v. Registrar of Titles (1915) 20 C. L. R. 379.

"Sullivan v. Recorder of Titles (1913) 9 Tas. R. 57; In re Duggan
(1884) 2 N. Z. S. C. 144. McEacharn v. Colton [1902] A. C. 104, seems
to support the Tasmanian decision.

75 In re Duggan, supra; Baker's Creek G. M. Co. v. Hack (1894) 15
N. S. W. Eq. 207.

78 S. A. 1886, s. 192; Fi. 1876 (1906), s. 103.

" N. S. W. 1900, s. 124 ; Q. 1861, s. 123 ; Tas. 1862, s. 124 ; V. 1915,
s. 244; W. A. 1893, s. 199; P. 1913, s. 144; N. Z. 1915, s. 59 (1) ; Tr.
1902, s. 132 ; J. 1888, s. 135 ; M. 1913. s. 84 ; Sas. 1917, s. 159 ; Al. 1906,
s. 104 ; Can. 1906, s. 142.

n Sanders v. Wadham (1870) 4 S. A. R. 73, 76; Bucknall v. Reid
(1876) 10 S. A. R. 188.

Sect. 2] LEASES. 345

land. General statutes are also sometimes referred to in reported
cases as applicable.

Statutes usually known as Landlord and Tenant Acts apply,
as a rule, on such matters as relief against forfeiture, actions for
use and occupation, &c.79

There is the same right to an injunction against threatened
breach of covenant as in the case of leases of unregistered land, and
the remedy of injunction is even more readily available by reason of
title conferred by registration on a bona, fide purchaser.80

In New South Wales the subject of an equitable contract of
lease is declared to be a leasehold for certain purposes under the
registration statute.81

-In Victoria Part III of the Conveyancing Act 1915, relating to
leases (ss. 14-26), is expressly made applicable to registered land.
These enactments are taken from the English Conveyancing Acts,
and deal with forfeiture, &c.

The registration statutes themselves contain provisions which
must primarily govern the rights of parties with regard to such
matters as leases of land in mortgage, leases by mortgagees, trans-
fer of lease, transfer of reversion, forfeiture for breach of covenant
or condition, surrender, extension of lease. On the other hand,
relief against forfeiture is a matter governed by general legislation
and not the registration statutes.

The subjects of leases of land already in mortgage, and leases
by mortgagees, are dealt with under " Mortgages " ante, pp. 249,
265.

The subject of transfer of lease is dealt with under " Transfer,"
ante, p. 325. The question of the existence and effect of a cove-
nant against assignment must also be taken into account, and this
is referred to ante, pp. 339, 344. The transferee takes all the
rights of the lessee, including the right to surrender the lease.82

On breach by the lessee of the covenants or conditions of the
lease the lessor can re-enter and take possession. In Leeward
Islands there is no such power distinctly conferred by the statute.

"See Munro v. Adams (1891) 17 V. L. R. 703; Martin v. Coultas
[1911] S. A. R. 1; Re Tucker and Armour (1906) 4 West. R. 394 (N.
W. T.), quoted in Can. Torr. Syst. 354.

*McEacharn v. Colton [1902] A. C. 104; Munday v. Prowse (1878)
4 V. L. R. 101.

"Forfeiture and Validation of Leases Act 1905 (No. 8), s. 7 (3) —
New South Wales. This Act amends the Forfeiture of Leases Act 1901
(No. 66), and the latter (taken from the English Conv. Acts) has been
treated as applicable to registered land : Measures v. McFadyen (1910) 11
C. L. R. 713; Brooker's Colours v. Sproules (1910) 10 S. R. (N. S. W.)
839.

**Hare v. Terry (1918) 24 C. L. R. 468. under S. A. 1886, s. 151.

346 SALE, TRANSFER, LEASE. [Oh. vii.

In other jurisdictions the power that is conferred and implied in
the lease varies slightly. In all, the three cases provided for are:
rent being in arrear, breach of covenant continuing for a certain
time, default in complying with notice to repair. In New South
Wales and New Zealand,83 the period for which rent must be in
arrear or breach of covenant continue is six months, in Queensland,
Papua, and Trinidad-Tobago 84 six calendar months. In South
Australia the period is three months, and in Tasmania three
calendar months.85 In Victoria, Western Australia, and Jamaica 88
the period is one month; in Saskatchewan, Alberta, and North-
West-Territories 87 it is two calendar months. In Fiji the period
for which rent must be in arrear is three calendar months, and in
Federated Malay States three months, whilst for breach of covenant
six is in each case substituted for three.88 Lastly, in Manitoba the
rent need only be " in arrear," though breach of covenant must
continue for six calendar months.89

Unless otherwise expressly stated in the lease, the breach
must " continue " for the prescribed period in order that the power
of re-entry may arise. It has been held that the covenant against
assignment is not a covenant the breach of which can " continue "
for a period like six months, and that breach of such a covenant
gives no right to re-enter.90 But the statutory powers may be
added to, varied, or negatived.91 Thus the lessor may have express
power conferred upon him to re-enter for breach of covenant
" forthwith or at any time thereafter." 92

Having re-entered in accordance with the terms of his lease
(express or implied), the lessor can then, but not until then, have
this re-entry recorded on the register ;93 the lessee's interest is then
determined, but without releasing him from liability in respect of
any breach of covenant. This latter provision as to release from
liability is not contained in the Leeward Islands statute, but is
possibly to be implied as part of the general landlord and tenant
law.

83 N. S. W. 1900, s. 79; N. Z. 1915, s. 98.

84 Q. 1861, s. 71 ; P. 1913, s. 78 ; Tr. 1902, s. 72.

85 S. A. 1886, s. 125 ; Tas. 1862, s. 50.

"• V. 1915, s. 133 ; W. A. 1893, s. 93 ; J. 1888, s. 72.

87 Sas. 1917, s. 94 ; Al. 1906, s. 56 ; Can. 1906, s. 90.

88 Fi. 1876 (1906), s. 53; F. M. S. 1911, s. 40.

89 M. 1913, s. 103.

90 Sanders V. Wadham (1870) 4 S. A. R. 73.
MBucknall v. Reid (1876) 10 S. A. R. 188.

92 Staehr v. Federal Lime Co. [1912] S. A. R. 102, 113.
03 Baker's Creek G. M. Co. v. Hack (1894) 15 N. S. W. Eq. 207, 222,
231; Cairns v. Burgess (1910) 6 Tas. R. 85.

Sect. 2] LEASES. 347

The enactments authorizing this mode of determining the lease
take three forms. In South Australia, Victoria, Western Australia,
Papua, and New Zealand,94 the lessor may either re-enter (appar-
ently without any process in the courts), or he may recover posses-
sion of the land by legal proceedings. In Xew South Wales, Fiji,
Federated Malay States, Trinidad-Tobago, and Manitoba,95 any
* lawful " re-entry is sufficient, and this includes re-entry without
proceedings in the courts as well as under the authority' of legal
proceedings.96 In Queensland, Tasmania, Jamaica, Leeward Is-
lands, Saskatchewan, Alberta, and North-West Territories,97 re-
entry can only be made under the authority of legal proceedings.98

Satisfactory evidence of re-entry or recovery of possession must
be furnished to the registry, but the fact of re-entry being recorded
on the register is not inconsistent with the lessee being still in
possession.1

The re-entry, in order to be lawful, must comply with any re-
quirements of the law relating to landlord and tenant, even though
these may not be contained in the registration statutes. Thus, in
many jurisdictions the provisions of the English Conveyancing
Acts have been adopted, requiring notice of the breach relied on to
be given to the lessee, and these provisions apply to leases of regis-
tered land.2 But the power of re-entry given by the registration
statutes themselves can be exercised without complying with the
common law rules as to the demand of rent.3

As already stated (p. 346), though the registration statutes
say nothing of relief against forfeiture, the general legislation
under which the courts are empowered to relieve a lessee from the
strict consequences of a breach of covenant or condition in his lease

"S. A. 1886, s. 126: V. 1915, ss. 136, 144; W. A. 1893. ss. 96, 104;
P. 1913, s. 45; N. Z. 1915, s. 99.

"N. S. TV*. 1900. s. 55; Fi. 1876 (1906). s. 54 ; F. M. S. 1911, s. 41;
Tr. 1902, s. 73: If. 1913, s. 104.

"Baker's Creek Or. M. Co. v. Hack, supra; MoFadyen v. Measures
(1910) 10 S. R. (X..S. W.) 190. 199.

•"Q. 1861. s. 72; Tas. 1862, s. 51: J. 1888. s. 75; L. Is. 1886 (1914),
s. 70 ; Sas. 1917, s. 95 ; Al. 1906, s. 57 ; Can. 1906, s. 91.

"Re Tucker and Armour (1906), 4 West. R. 394 (N. W. T.); Can.
Torr. Syst. 353 ; Aust. Torr. Syst. 939.

1 B rooker's Colours v. Sproules (1910) 10 S. R. (N. S. W.) 839.

'McFadyen v. Measures (1910) 10 S. R. (N. S. W.) 190. 197, 198,
referring to the Forfeiture of Leases Act 1901 (No. 66) — Xew South
Wales; Martin v. Coultas [1911] S. A. R. 1, referring to the Landlord
and Tenant Act of 1893 (No. 580)— South Australia. See notes 36, 81
supra — 340, 345 : In Staehr v. Federal Lime Co. [1912] S. A. R. 102, the
provision as to notice in the South Australian Act just referred to was
held not to apply under the circumstaDce.

3 McFadyen v. Measures, supra, at pp. 198. 199.

348 SALE, TRANSFER, LEASE. [Ch.vii.

applies to leases of registered land. For the most part, where such
general legislation is in force, it follows the lines of the English
enactments on the subject. Sometimes however the local statute
differs. In South Australia, for instance, the usual exception of
covenants against assignment is omitted, and the power of granting
relief against forfeiture on assignment is extended to cases where
"the consent of the lessor has been vexatiously or capriciously with-
held;4 it has been held that the Act applies to covenants against
assignment only when the lessor's consent has been improperly
withheld.5

The relief can be granted by the court even after the determina-
tion of the lease by formal registration of the lessor's re-entry.6

In four jurisdictions — South Australia, Tasmania, "Western
Australia, Fiji 7 — provision is made for " extension " of a lease by
registration of a supplemental instrument extending the term, the
consent of the mortgagee being necessary where the lease is subject
to a mortgage. In Trinidad-Tobago 8 there is also an enactment
(apparently taken from the Fiji statute) that a lease "may be
extended in manner hereinafter mentioned," but nothing more.

Sub-leases are mentioned in some statutes, and in some ex-
pressly authorized, and in three — Manitoba, Leeward Islands, Fed-
erated Malay States — not mentioned at all. Even in these three
jurisdictions sub-leases would seem to be valid and registrable
transactions.9 In many jurisdictions the only reference to sub-
leases is contained in the statutory form of covenant against sub-
letting, &c. ; these are: New South Wales, Queensland, Papua,
Trinidad-Tobago, Jamaica, Saskatchewan, Alberta, North-West
Territories. In Fiji sub-leases for a year and upwards are not
"valid unless registered," and in South Australia and New Zea-
land sub-leases are protected in the event of surrender of the head-
lease.10 In Tasmania " the statutory provisions relating to leases
are expressly made applicable to sub-leases, with necessary modifi-
cations. Only in Victoria and Western Australia is provision made
for a separate register of sub-leases ; a special enactment also makes

*Act to amend the Law of Landlord and Tenant (No. 580, 1893).
Martin v. Goultas and Staehr v. Federal Lime Co. (supra) were both
decided under this Act.

* Staehr v. Federal Lime Co., supra.

9Brooker,s Colours v. Sproules (1910) 10 S. R. (N. S. W.) 839.
' S. A. 1886, ss. 153, 154 ; Tas. 1886, ss. 24, 25 ; W. A. 1893, s. 105
(1909, s. 13) ; Pi. 1876 (1906), ss. 51, 59.
8Tr. 1902, s. 69.

* See observations in Aust. Torr, Syst. 934, 935.

10 Fi. 1876 (1906), s. 49 (2) ; S. A. 1886, s. 223; N. Z. 1915, s. 96 (2).
"Tas. 1893, s. 12.

Sect. 2] LEASES. ' 349

it an implied covenant in every sub-lease that the sub-lessor will
observe the conditions of the head-lease.12

The inconvenience of having to produce the head-lessor's certi-
ficate of title at the registry when a sub-lease is to be registered is
obviated in Victoria and "Western Australia, and also in Fiji, by
allowing the necessary entries to be made on the lease itself instead
of on the main register.13

It is only in South Australia, Tasmania, Victoria, Western
Australia, and New Zealand,14 that the question of the status of a
sub-lease, after the determination of the head-lease, is noticed by
the statutes. Whilst in South Australia u every surrender " of a
lease is " subject to any registered under-lease," in Tasmania, Vic-
toria, and Western Australia this principle has not been followed,
and the sub-lease comes to an end if the head-lease is " determined
by forfeiture or operation of law or by surrender under " insol-
vency statutes, &c. ; in New Zealand no lease can be surrendered
without the consent of the sub-lessee. Apparently, subject always
to any express enactment in the registration statutes, the general
law of landlord and tenant as to the effect of a determination of
the head-lease would override any merely general provision as to
the effect of registration: even a registered sub-lease could hardly
stand after the destruction of its head-lease — always in the absence
of special enactment upholding the sub-lease, of which the South
Australian enactment is an example.

The surrender of a lease is provided for in all seventeen juris-
dictions except Manitoba, and on being recorded in the register
the interest of the lessee " revests " in the reversioner entitled.15
In all but two — Queensland and Leeward Islands 16 — the consent
of a mortgagee is expressly required before a surrender can be reg-
istered, but it seems doubtful whether even in the absence of such
an enactment an instrument would be accepted for registration
behind the back of a mortgagee. In New Zealand 1T the consent of
every sub-lessee as well as mortgagee is also required, but the reg-
istry would probably treat a sub-lessee as a necessary party to the
transaction as in the case of a mortgage. In South Australia a
surrender is u subject to any registered under-lease," and also to

"V. 1915. ss. 139-144; W. A. 1893, ss. 99-104.

"V. 1915. ss. 140, 141; W. A. 1893, ss. 100, 101; Fi. 1876 (1906).
s. 49 (2). The case of In re West (1890, Udal's Fiji R. 227) was de-
cided before the amending statute of 1892 was passed.

14 S. A. 1886. s. 123 ; Tas. 1893. s. 12 : V. 1915. s. 142 ; W. A. 1893.
s. 102; N. Z. 1915. ss. 96 (2). 128. See Aust. Torr. Syst. 936-938.

u See Aust. Torr. Syst. 935-938. .

MQ. 1861. ss. 54, 55; L. Is. 1886 (1914), s. 70.

11 N. Z. 1915, s. 96.

350 SALE, TRANSFER, LEASE. [Ch. vii.

short leases that do not require registration, so that these would
not be affected by the surrender even if registered ; the same result
would seem to follow from the affirmative enactments in Tasmania,
Victoria, and Western Australia, that a sub-lease is determined by
forfeiture, &c. of the head-lease,18 the case of ordinary surrender
being impliedly excepted. In the remaining jurisdictions nothing
is said about the effect of a surrender on sub-leases, but (as in New
Zealand) it seems probable that a sub-lessee as well as a mortgagee
would be regarded as a necessary party to a surrender tendered for
registration ; these remaining jurisdictions are : New South "Wales,
Papua, Fiji, Federated Malay States, Trinidad-Tobago, Jamaica,
Saskatchewan, Alberta, North-West Territories.19

Besides surrender by act of the parties the enactments cited
also refer (except in the case of New Zealand) to surrender in law
and (except in Federated Malay States, Saskatchewan, Alberta,
and North- West Territories) under the provisions of bankruptcy
or insolvency statutes. In many statutes there are also separate
enactments relating to leases in mortgage ; the refusal of the mort-
gagee to take over the lease may operate as a surrender to the re-
versioner.20 It is not clear whether such surrenders always have
the same effect as other surrenders by act of parties — for instance,
with respect to the effect on sub-leases. In South Australia it is
expressly enacted that " every surrender . . . whether by operation
of law," &c. is subject to sub-leases.

18 S. A. 1886, ss. 120-123 ; Tas. 1862, s. 48, and 1893, s. 12 ; V. 1915, s.
138, 142 ; W. A. 1893, ss. 98, 102.

MN. S. W. 1900, s. 54; P. 1913, ss. 43, 44; Fi. 1876 (1906), ss.
51, 56; F. M. S. 1911, ss. 38, 42; Tr. 1902, s. 70; J. 1888. s. 77; Sas.
1917, s. 97 ; Al. 1906, s. 59 ; Can. 1906, s. 93.

29 N. S. W. 1900, s. 91; S. A. 1886, s. 173; Tas. 1862, s. 77; V. 1915,
s. 137 ; W. A. 1893, s. 97 ; N. Z. 1915, s. 128 ; J. 1888, s. 76.

•

Sect. 1] CREDITORS' RIGHTS. 351

CHAPTER VIII— CREDITORS' RIGHTS. VESTING OR-
DERS. RECTIFICATION OF REGISTER.

This chapter deals with changes in the registered ownership
effected otherwise than by means of statutory instruments or act of
the parties, or in consequence of the death of the owner.

SECTION 1 — CREDITORS' RIGHTS.

SUB-SECTION 1 BANKRUPTCY, INSOLVENCY, CREDITORS' ASSIGN-
MENTS.

In five of the twenty-two jurisdictions — Ontario, British Co-
lumbia, North-West Territories, British Honduras, Federated
Malay States — the registration statutes make no mention of bank-
ruptcy, insolvency, or creditors' assignments, though in Ontario a
statutory rule does refer to assignments.1 But the law relating to
liquidation of debtors' property for the benefit of creditors must,
in the absence of special enactment, be taken to apply to registered
land as part of the general law — just as the law relating to con-
veyances in fraud of creditors applies.2 The only question is, when
the registration statutes are silent, as to the exact manner and
extent of this application.

In Ontario, the rule referred to authorizes the creditors' as-
signee to be registered as owner, notwithstanding that the property
assigned is described merely in general terms. Both in Ontario
and British Columbia there is an enactment to the same effect con-
tained in the statute relating to creditors' assignments, " subject
however as regards land to the provision of the " registration stat-
utes.3 Such an assignment is a voluntary transaction, and liable
to be displaced accordingly by a transaction for value.4 There
seems to be no corresponding enactment in the North- West Terri-
tories, but a creditors' assignee would probably be entitled to apply
for registration as in other jurisdictions.

In British Honduras the English Bankruptcy Acts have been

^n. 1911 Rules, r. 38.

2 See Syndicat Lyonnais v. McGrade (1905) 36 Can. S. C. R. 251, where
the 13 Eliz. was held to apply in the North- West Territories.

3 Ontario — Assignments and Preferences Act (R. S. 1914, c. 134), s. 8.
British Columbia — Creditors' Trust Deeds Act (R. S. 1911, c. 13), s. 4:
by s. 14 the assignment " may be registered in any land registry office."

*Macdonald (John) & Co. v. Tew (1914) 32 O. L. R. 262.

352 CREDITORS. RECTIFICATION. [Ch. vlli.

taken as a model, and the certificate of appointment of a trustee is
made registrable as a conveyance.5

In the Federated Malay States there are enactments in the
state (as distinguished from federal) Civil Procedure Codes by
which an insolvent debtor's property vests in the receiver on his
appointment,6 but no reference is made to registration. It has
been held that the ordinary rule of English law, by which a credi-
tors' trustee takes subject to equities is overridden by the registra-
tion statute, and that the whole legal and beneficial interest of the
debtor in land — as appearing on the register — vests in the trustee.7
Even if this decision holds good in its own jurisdiction, it would
hardly be followed to its full extent elsewhere.

In these five jurisdictions the right of the creditors' representa-
tive would seem to be an equitable right to be registered in place
of the debtor, the registration statutes being construed as the special
enactments in virtue of which the full legal ownership of the land
can only be taken from the debtor by the registration of the trustee
or assignee as owner. This is illustrated by cases (in other juris-
dictions) not expressly provided for by the statutes.8 The au-
thority for change of ownership must (except in Ontario) depend
on the powers, express or implied, which the registration statutes
confer on the registry or the courts to rectify the register. In
Ontario, as stated above, a statutory rule authorizes the creditors'
assignee to apply for registration and to be registered accordingly
as owner of the debtor's land. And of course a debtor could
always transfer his land to an assignee for creditors by a registrable
instrument. Owing to the absence, in Ontario and Federated
Malay States, of any wide enactment in the registration statutes
under which registration generally would carry a warranty of title,
the position of a creditors' representative in these two jurisdictions
is perhaps less secure than elsewhere. There is in fact in the
statutes of Ontario and Federated Malay States no enactment with
respect to warranty of title that expressly covers the case of a per-
son registered otherwise than on an initial application, on transfer
for value from a registered owner, or in consequence of the death

"British Honduras R. S. 1914, c. 53 "Bankruptcy," s. 47. See the
English Act, Bankruptcy Act 1914 (c. 59), s. 53. The order of adjudica-
tion itself is not registrable: In re Caleott and Elvin's Cont. [1898] 2
Gh. 460. But see note 24 post.

•See s. 325 of the Selangor Civil Procedure Code (1902, No. 13).
The Negri Sembilan Code is No. 7 of 1902.

* Chan Oun Lai v. Anderson Pole (1911) Innes F. M. S. 126.

8 See Kelly v. Doody (1871) 5 S. A. R. 132; Ex p. Bettle (1895 i 14
N. Z. R. 129.

Sect. 1] CREDITORS' RIGHTS. 353

of a registered owner.9 In British Columbia, Xorth-West Terri-
tories, and British Honduras,10 the enactments are wider, and cover
registration generally, however effected.

In the registration statutes of the other seventeen jurisdictions
provision is made for the registration of the creditors' representa-
tive as owner in place of the debtor. The procedure, whether the
system of liquidation be bankruptcy, insolvency, or creditors' as-
signment, is much the same so far as the registration statutes are
concerned, and is referred to in those statutes as " transmission."
Each statute has of course been drafted in view of the general
law prevailing in that particular jurisdiction, and this determines
the nomenclature in the registration statutes. Thus, bankruptcy
and insolvency are referred to in Ireland, New South Wales, Tas-
mania, and Western Australia;11 bankruptcy in England, New
Zealand, Fiji, Trinidad-Tobago, and Jamaica;12 insolvency in
Queensland, Victoria, and Papua;13 insolvency and assignment in
South Australia;14 bankruptcy and assignment in Leeward Is-
lands;15 assignment in Manitoba, Saskatchewan, and Alberta.16
Liquidation by arrangement is also referred to in the English,
Irish, Fiji, and Leeward Islands enactments.

The method of registration resembles somewhat that prescribed
on initial registration. In some jurisdictions a formal application
is necessary; but in every case an application is in effect required
to be made by the creditor's representative that he shall be regis-
tered as owner in place of the debtor, and evidence of his title to
be so registered must be produced. Most of the statutes enact that
the creditors' representative shall be " entitled to be registered " as
owner in place of the debtor "upon the bankruptcy," &c. occur-

•On. 1914. ss. 10, 42. 59. F. If. S. 1911, ss. 8, 67; but see and
consider the definition of " transmission " in s. 2, as including the passing
of land " by operation of law."

"B. C. 1911, ss. 22. 25A. 2.7P, : Tan. 1906. ss. 72. 73. 142; B. H.
1914. s. 30.

11 1. 1891, s. 76 ; 1910 O. 11 ; Bro. & Gl. 182. 183. X. S. W. 1900. ss.
3, 54, 90, 91. Tas. 1862, ss. 3. 48. 76. 77. W. A. 1893. ss. 97, 98. 102,
234, 235. Aust. Torr. Syst. 990-995.

uEng. 1875, ss. 43, 46. 47; 1903-8 Rules, rr. 193-200; Own. & Inc.
241. 242. N. Z. 1915, ss. 2, 123. 124, 126-128. Fi. 1876 (1906). ss. 2.
56, 85-89. Tr. 1902, ss. 2, 70, 96, 97. J. 1888, ss. 76, 77, 103. Aust.
Torr. Syst., supra.

ttQ. 1861. ss. 3. 54, 55, 86; 1877, s. 34. V. 1915, ss. 137, 138. 142.
275, 276. P. 1913, ss. 5, 44, 93, 94. Aust. Torr. Syst., supra.

" S. A. 1886, ss. 3, 123, 170-174, 180 ; Aust. Torr. Syst., supra.

v'Ij. Is. 1886 (1914), ss. 31-33.

" M. 1913, ss. 2, 129 ; Sas. 1917. s. 147 ; Al. 1906, s. 83A. Can. Torr.
Syst. 269-271.

B.T.I. — 23

354 CREDITORS. RECTIFICATION. [Ch. viii.

ring; some either confer the right to be registered when the land
on bankruptcy, &c. "vests in" the creditors' representative, or
speak of the creditors' representative acquiring title to the land
by the bankruptcy, &c.17 But the particular form of the enact-
ment seems immaterial, and the meaning in every jurisdiction
seems to be the same, viz. that the bankruptcy, &c. of the regis-
tered owner does not confer on the creditors' representative the
complete legal ownership of the land, but only the right to have
this legal ownership by being placed on the register.

The general vesting effect of the bankruptcy, &c. thus seems to
be restricted in the case of registered land by the special provisions
of the registration statutes. This principle has been acted on in
New Zealand,18 and in Jamaica,19 and also (though perhaps carried
too far) in Federated Malay States.20 The same principle is im-
plied in the statutes of Victoria and Western Australia,21 which
enact that, pending proceedings by the creditors' representative,
the registered owner may deal with the land without being affected
by the bankruptcy, &c.22 In Saskatchewan the general statute
relating to creditors' assignments contains an enactment similar to
those in Ontario and British Columbia, making assignments " sub-
ject ... as regards lands to the provisions of the " registration
statute.23 The same rule would seem to apply in other jurisdic-
tions, viz. that the order of adjudication, &c. does not fully vest the
bankrupt's registered land in the creditors' representative, but that
the latter must be registered in place of the debtor in order to take
over all his legal ownership.24 In Ireland special provision is made

"See I. 1891, s. 76; J. 1888, s. 103; Q. 1861, s. 86; L. Is. 1886
(1914), s. 31; N. Z. 1915, s. 2 (def. "transmission" as "acquirement of
title . . . consequent on . . . bankruptcy").

^Messiter v. Wollerman (1907) 27 N. Z. R. 589.

19 Alexander v. Simpson (1903) Jamaica, unreported.

i0Chan Gun Lai v. Anderson Pole (1911) Innes F. M. S. 126. So
far as it is sound this case would be an a fortiori authority elsewhere,
since nothing is said in the F. M. S. 1911 of transmission by insolvency.

21 V. 1915, s. 276; W. A. 1893, s. 235. The Victorian Insolvency Act
1915 (No. 2671) also enacts that "... Nothing in this Act shall
limit the effect of the express provisions of the Transfer of Land Act
1915."

22 In re Palmateer (1890) 16 V. L. It. 793; Equity Trustees Co. v.
Ayvey (1900) 26 V. L. R. 625, 632, 634; Graham v. Jones [1905] V. L. R.
645.

w Saskatchewan R. S. 1909, c. 142, s. 7. By s. 13 the assignment is
to be registered in a land titles office. This statute is referred to in Re
Brooks (1909) 12 West. R. 303 (Sas.), and Leach v. Haultain (1918)
24 West. R. 154 (Sas.).

24 It was expressly said in New Zealand (Messiter v. Wollerman.
supra) that the English case of In re Calcott and Elvin's Cont. [18981 2
Ch. 460, had no application. This case related to unregistered land, and is
referred to in note 5 ante, p. 352.

Sect. 1] CREDITORS' RIGHTS. 355

for the protection of bona fide transactions prior to entry of bank-
ruptcy proceedings on the register.25 In England the creditors'
representative is only entitled to be registered on the proper court
certifying " that the land or charge is part of the property of the
bankrupt divisible among his creditors." 26

The property in respect of which the creditors' representative
may be registered is referred to in the statutes of England and Ire-
land (and also in the statutory rule of Ontario) as "land or
charge/' no mention being made of leases. So in Manitoba, Sas-
katchewan, Alberta, and Leeward Islands, the reference is to
"land, mortgage, or incumbrance," and no mention is made of
leases. Leases are not registrable in England, Ireland, and On-
tario like other interests, but it can hardly be doubted that in Mani-
toba, Saskatchewan, Alberta, and Leeward Islands, a registered
lease could be made the subject of transmission on bankruptcy, &c.

In other jurisdictions leases are included (expressly or im-
pliedly) in the interests transmissible on bankruptcy, and are also
the subject of special enactments. Mortgages are also included,
but (except in Leeward Islands27) they only form the subject of
separate enactment when mortgaged leases are spoken of.

In Queensland and Papua 28 the statutes say nothing about an
insolvent's lease being mortgaged, but merely provide that the
creditors' representative may disclaim the lease. In New South
Wales, Tasmania, and New Zealand,20 the statutes refer only to
such leases as are mortgaged, and provide that if the creditors'
representative does disclaim the mortgagee may have the lease
vested in himself as if on foreclosure or sale, and if the mortgagee
also disclaims the lessor may have the lease surrendered. So in
Victoria, Western Australia, and Jamaica,30 except that the only
case provided for is that of a lease " subject to one mortgage only,
or to several mortgages if owned by the same person." In South
Australia, Fiji, and Trinidad-Tobago,81 the cases of a lease being
mortgaged and free from mortgage are both provided for ; whether
mortgaged or not, the lease may be disclaimed by the creditors'
representative, and if mortgaged the mortgagee and lessor may
successively claim, as in other jurisdictions.

The statutes in Victoria and Western Australia 32 make plain
what is perhaps implied in other jurisdictions, viz. that the credi-

25 1. 1891, s. 76 (2). *Ens. 1875. s. 43.

27 L. Is. 1886.(1914), s. 33. *Q. 1861, s. 55; P. 1913. s. 44.

»N. S. W. 1900, s. 91; Tas. 1862, s. 77; N. Z. 1915, ss. 126-128.

80 V. 1915. s. 137: W. A. 1893, s. 97; J. 1888, s. 76.

31 S. A. 1886. s. 173; Fi. 1876 (1906), ss. 86-88; Tr. 1902, s. 97.

82 Y. 1915, s. 275; W. A. 1893. s. 234.

356 CREDITORS. RECTIFICATION. [Cn. vin

tors' representative is entitled to be registered in respect of inter-
ests acquired by the debtor during the bankruptcy, &c.

Occasionally a creditors' representative may find it necessary
to get in the debtor's registered ownership by means of a vesting
order under the Trustee Acts.33

On registration the creditors' representative becomes the regis-
tered owner of the debtor's land or interest, and has so much of
the benefit of the statutory warranty of title as is consistent with
his position. This position is expressly defined in most jurisdic-
tions, but apart from any such definition a creditor's representa-
tive is a trustee and a volunteer, and takes the property subject to
the equities on which the debtor held it.34 In Ireland and Lee-
ward Islands the registration statutes say nothing explicitly as to
the creditors' representative taking the registered ownership sub-
ject to any equities. In Manitoba, Saskatchewan, and Alberta,35
there is a necessary implication that the creditors' representative is
a mere trustee, though absolute owner for the purpose of confer-
ring title on a purchaser.

In England the person registered in place of a bankrupt owner
holds the property subject to unregistered interests, but for the
purpose of registered dealings as though he had taken it " under
a transfer for a valuable consideration." 36 In the remaining jur-
isdictions— the nine Australasian, Trinidad-Tobago, and Jamaica 37
— the creditors' representative holds subject to trusts and equities,
but for purposes of dealing with the land as though he were abso-
lute owner. Thus, property vested in the bankrupt registered
owner as a trustee will not be property in respect of which the
creditors' representative is entitled to be registered, though this is
more explicitly stated in the statutes of England, Queensland, and
Papua 38 than elsewhere. The decision under the Federated Malay
States statute on this point would hardly be possible in England,
New South Wales, &c, under similar circumstances.39 In the

MAn illustration is Re Winter Veale & Co. (1881) 1 Q. L. J. 143.

u Giles v. Lesser (1879) 5 V. L. R. 38 ; In re Nathan (1863) 1 S. A. R.
166; Macdonald (John) tC- Co. v. Tew (1914) 32 O. L. R. 262. The
English cases are cited in Innes F. M. S. 133.

" M. 1913, s. 129 ; Sas. 1917, s. 147 ; Al. 1906, s. 83A.

M Eng. 1875, s. 46 ; Own. & Inc. 241.

37 N. S. W. 1900, s. 90 (3) ; Q. 861, s. 86; S. A. 1886, s. 180; Tas.
1862, s. 76; V. 1915, s. 275; W. A. 1893, s. 234; P. 1913, s. 93; N. Z.
1915, ss. 2 (def. "transmission"), 124 (2) ; Fi. 1876 (1906), s. 89; Tr.
1902, s. 96; J. 1888, s. 103. See Aust. Torr. Syst. 993, where the state-
ment about New Zealand statutes is no longer in point, these having now
been amended so as to bring them into line with other Australasian
statutes. * Eng. 1875, s. 43 ; Q. 1861, s. 86 ; P. 1913, s. 93.

89 See Chan Gun Lai v. Anderson Pole (1911) Innes F. M. S. 126, 133.

Sect. 11 CREDITORS' RIGHTS. 357

event, however, of the creditors' representative being actually reg-
istered as owner of any land previously vested in the bankrupt, it
seems clear that a bona fide purchaser would, on registering bis
transfer, acquire a fully warranted title.40

In Queensland and Papua 41 provision is made for registering
notice of annulment of insolvency, and this has the effect of re-
vesting in the insolvent any land not disposed of by the creditors'
representative. In Ireland also notice of annulment of bank-
ruptcy may be registered, but no re-vesting effect is given to this,
and apparently the creditors' representative, if already registered
as owner, would have to transfer to the person whose bankruptcy
had been annulled.42 In other jurisdictions it would also be neces-
sary for formal transfers by a creditors' representative to be exe-
cuted and registered when once he had been registered as owner.
In Victoria and Western Australia 43 special provision is made for
removing from the register any notification of the rights of a
creditors' representative when these appear by way of incumbrance
only, but in most jurisdictions any such incumbrance would prob-
ably be in the form of a caveat or caution, and this could be re-
moved in the usual way.

With respect to companies in liquidation, in England provision
is made for registering the resolution or order appointing a liqui-
dator.44 This of course does not effect any alteration in the ordin-
ary rule of law, under which the liquidator takes no estate in the
company's property, but merely takes over the powers of the direc-
tors. In Tasmania, however, it is specially enacted that upon the
winding up of a company incorporated under the Companies Acts
the liquidators are entitled to be registered as owner? of the com-
pany's land, &c.,45 just as though they were the creditors' represen-
tatives in a bankrupt estate.

SUB-SECTION 2 JUDGMENTS AND EXECUTIONS.

Creditors' rights under judgments and executions may be en-
forced against registered land the property of a debtor, just as
rights under bankruptcy, &c, may be enforced. As in the case
of bankruptcy, &c, the positive and substantive rules of law
on the subject, under which the judgment creditor is secured
in his right to make the debtor's land available for satisfaction

40 Own. & Inc. 241 : Aust. Torr. Syst. 919, 993 : ante, p. 97.

41 Q. 1877, s. 34 ; P. 1913, s. 94.

* I. 1891, s. 76 (3) ; Bro. & Gl. 183.
*• V. 1915, s. 229 ; W. A. 1893, s. 184.
"Eng. 1903-8 Rules, r. 200. "Tas. 1886, s. 31.

358 CREDITORS. RECTIFICATION. '[CH.VHL

of his claim, are for the most part to be found elsewhere than
in the registration statutes.1 The latter usually enact only
how the right thus secured under the general law is to be enforced
against registered land. In some jurisdictions the rights conferred
by a general statute are expressly made " subject to the provisions
of " the registration statutes.2

In contrast to the case of bankruptcy, &c, the judgment debtor
remains on the register as owner, but the judgment or execution
may be made a charge or quasi-charge on the land by appropriate
procedure, and the registered ownership is only altered when pro-
ceedings have been taken to realize the charge by sale; the pur-
chaser of the debtor's interest is then registered as owner in place
of the debtor. These general observations appear to apply to all
jurisdictions. There are, however, three in which the registration
statutes themselves are silent on the subject: England, New Zea-
land, British Honduras. New Zealand is substantially brought
into line with other Australasian jurisdictions by provision being
made in the Supreme Court rules for registration of charging
orders;8 in England a judgment creditor may enter a caution, but
this seems to be the only reference to the subject in the statutes or
rules.4 Thus, in England and British Honduras the statute law
on the subject is to be found outside the registration statutes.

As in the case of bankruptcy, &c, it seems correct on the whole
to say that transactions by the debtor himself are valid so long as
the register shews nothing of the judgment or execution, and that
a duly registered purchaser from the sheriff or other official vendor
is also protected against equitable interests of which the purchaser
has no notice.5

Neither statutes nor judicial decisions are uniform with regard

1 Occasionally difficulties have arisen in determining what the sub-
stantive rights of judgment creditors are with respect to registered land:
see Seay v. Summerville Hardware Co. [1917] 1 W. W. R. 1497 (Ah).

2 For instance, in Ontario: Execution Act (R. S. 1914, c. 80), s. 10.

"Rules 314-321; see Hutch. 122.

4Eng. 1875, s. 53. See Own. & Inc. 129, 344; Br. & Sh. 37. Pro-
ceedings must be taken under the Land Charges Registration Acts 1888
and 1900.

BIn Robertson v. Keith (1870. 1 V. R. 11) the sheriff's transferee
would have been protected but for the land being in the possession of a tenant.
There are dicta as to the protection of a registered purchaser in other
cases: National Bank v. Morrow (1887) 3 V. L. R. 2 ; Jellett v. Wilkie
(1896) 26 Can. S. C. R. 282; In re Broughton (1916) 17 S. R. (N. S. W.)
29. This principle has been acted on under systems of deed registration,
which is of course a fortiori in favour of its application to registration of
title: see Silva v. Harney (1883) Wendt's Ceylon R. 383; Chia Guan
Chip v. Dunlop (1901) 6 Str. Sett. R. 98. Both these cases are stated
in Hogg's Deeds Reg. in Australasia, 125.

Sect. 1] CREDITORS- RIGHTS. 359

to the rights of a judgment creditor over registered land in which
his debtor has an interest. In some jurisdictions judgments or
executions are filed for registration and placed in a special book or
sub-register, in others ^hey are notified in the main register; but
the filing at the registry, and not the noting subsequently in the
register, is the important part of the procedure.6 Notwithstanding
the essential difference (in theory and with respect to ordinary
instruments) between actual registration and mere notification or
entry on the register, there appears to be no substantial difference
in the rights conferred with respect to judgments or executions ;
and since the rights of the judgment creditor are also the same,
whether it be the judgment or an execution under the judgment
that is registered, no distinction between judgment and execution,
or between registration and mere entry, need be dealt upon for the
present purpose.

In Ontario, Manitoba, Alberta, North- West Territories, New
South Wales, South Australia, Tasmania, Victoria, Fiji, Jamaica,
and Federated Malay States,7 the statutes are substantially (though
by no means verbally) uniform, and the case law is also fairly uni-
form. One difference is that in Manitoba, Alberta, and North-
West Territories the judgment or execution is registered indepen-
dently of the main register, and without regard to the fact that the
debtor may not be the registered owner of any land ; his registered
interest thus becomes bound whenever it comes into existence. In
other jurisdictions the judgment or execution cannot be registered
unless there is some land registered in the name of the debtor
against which* to register it.8

All these statutes enact in effect: (1) That registered land is
" bound " when, and not until, the judgment or execution is reg-
istered or entered on the register; (2) That on production (usually
within a stated time after the registration of the judgment or exe-
cution) of a transfer from the sheriff or other officer to a pur-
chaser of the land, and on compliance with ordinary formalities
of registration, the purchaser may be registered as owner. With

'Lee v. Harrison [1917) 3 W. W. R. 570 (Al.), affd. Lee v. Armstrong,
ib. 889.

7 On. 1914. ss. 62-65, and 1911 Rules, r. 32; M. 1913. ss. 78, 93, 95;
Al. 1906, ss. 43, 77-81 ; Gan. 1906 ss. 73, 124-129 ; N. S. W. 1900, s. 105 ;
S. A. 1886. ss. 105-110 : Tas. 1862. s. 94. and 1893, s. 17 ; V. 1915. ss. 178,
229, 230; Fi. 1876 (1906), s. 91; J. 1888, s. 102; F. M. S. 1911, s. 68.
New Zealand must also be included : Sup. Ct. Rules, rr. 314-321. And see
Aust. Torr. Syst. 983-988 ; Can. Torr. Syst. 51, 256-269.

sAust. Torr. Syst. 987, eases in note 24; Gan. Torr. Syst. 262; Lee
v. Armstrong, supra; Robin Hood Mills V. Harrison [1918] 2 W. W. R.
58 (AL).

360 CREDITORS. RECTIFICATION. [Ch. vin.

respect to these enactments it has been decided: (1) That the law
as settled by Eyre v. McDowell" — only the debtor's beneficial inter-
est is charged, and no priority over existing unregistered interests
is gained by registration of the judgment — has not been altered
when registered land is in question, and that the lien or charge
created by registration of the judgment or execution is subject to
unregistered rights and interests already created by the debtor
in favour of other persons; (2) That if the purchaser from the
sheriff becomes duly registered, the register may be conclusive and
his registered title free from the unregistered interests created by
the debtor, but unless actually registered the transfer of the pur-
chaser is liable to be postponed to unregistered interests created
prior to the registration of the judgment or execution. These
propositions seem to sum up the law as now laid down authorita-
tively both in Australia and Canada.10 The same principle, that
until actual registration of the purchaser the. holder of an unreg-
istered interest may take steps to assert his prior rights, also applies
in cases of sale of land for unpaid rates and taxes.11 Occasionally
an equitable interest created before registration, and while the land
is not bound by an execution, will be postponed to the right of an
unregistered purchaser from the sheriff.12

The registration of the judgment or execution does not confer a
" proprietary " right,18 but " operates as a caveat " against trans-
actions by the debtor,14 and some of the statutes state this expressly ;
there is however no difference in construction on this point between
enactments (such as those of South Australia, Fiji, and Federated

9 (1861) 9 H. L. C. 619. The law of judgment — mortgages in Ireland
must be examined in order to appreciate the true bearing of this ease, and
may be found in Madden's Reg. Deeds: see particularly pp. 86, 90, 94.
108. Eyre v. McDowell was not decided with reference to registered
land, but under the Irish Deeds Registration Acts ; perhaps its applicability
to registered land will have to be reconsidered in a final appeal court: see
Pvrn v. Coyle [1907] 1 I. R. 330 ; ante, p. 114.

10 See Robertson v. Keith (1870) 1 V. R. 11 ; National Bank v. Morrow
(1887) 13 V. L. R. 2; Aust. Torr. Syst. 986; In re Broughton (1916) 17
S. R. (N. S. W.) 29; Jellett v. Wilkie (1896) 26 Can. S. C. R. 282, follg.
National Bank v. Morrow; Re Brooks (1909) 12 West. R. 305 (Sas.. be-
fore the 1912-13. c. 16, s. 17) ; Merchants Bank of Canada v. Price (1914)
27 West. R. 48 (Al.) ; Bain v. Pitfield (1916) 33 West. R. 681 (Man.).
Some cases to the contrary are noticed further on.

11 In re Church's Caveat [1905] S. R. Q. 201; Watson v. Registrar
of Titles (1904) 7 W. A. R. 45; In re Edwards (1908) 10 W. A. R. 144.

12 In re Hodgson (1899) 25 V. L. R. 355.

"Bond v. McClay [1903] S. R. Q. 1; the form of the Queensland
enactments makes this case applicable a fortiori.
14 In re Bosquet (1883) 17 S. A. R. 181.

Sect. 1] CREDITORS' RIGHTS. 361

Malay States) which expressly make the registration operate merely
as a caveat, and those that do not.15

When land is held by the registered owner in a representative
capacity, an execution against him in his individual character can-
not be registered against the land; but an execution against the
person whom he represents may be registered against the land of
which the representative is the registered owner.16

Although it is only the beneficial — and not the merely legal —
interest of a registered owner that can be affected by registration of
a judgment or execution,17 and although the interest of the debtor
cannot be so affected while remaining a merely unregistered inter-
est, it has been considered doubtful whether the interest of a regis-
tered owner as unpaid vendor of the land can be made available for
the judgment creditor who has registered his judgment or execu-
tion.18 This doubt has, in Alberta, been set at rest by an amending
statute expressly making such an interest available,19 and the bal-
ance of judicial authority in other jurisdictions is in accordance
with the Alberta statute law.

In Queensland, Papua, and Leeward Islands,20 the enactments
are to the same effect as the majority of those already referred to,
but make additional provision regarding the interest to be taken
by a purchaser from the sheriff. The purchaser's transfer is to be
u subject to all equitable mortgages and liens notified by any
caveat . . . prior to the registration of the writ of execution " (in
Leeward Islands "order of sale "). This however will not prevent
an unregistered interest (other than an "equitable mortgage" or
a " lien ") previously in existence being set up against the pur-
chaser at any time before his transfer is registered,21 so that in these
three jurisdictions a purchaser from the sheriff, &c. can only rely

"Sawyer and Massey Co. V. Waddell (1904) 6 Terr. R. 45. Jellett v.
Wilkie (supra) was decided under a repealed statute (Territories Real
Property Act, R. S. Can. 1886, c. 51, s. 94) making the quasi-registration
of the writ " operate as a caveat," now omitted from Gan. 1906, s. 124.

"Balding v. Nicholas (1893) 19 V. L. R. 110; Reg. v. Bourne, Ex p.
Spresser (1897) 8 Q. L. J. 14.

■ Illustrated also in sale for taxes : In re Edwards (1908) 10 W. A. R.
144.

11 See Roomson v. Moffat (1916) 37 O. L. R. 52; Traunweiser v. John-
son (1915) 31 West. R. 712 (Al.) ; Adanac Oil Co. v. Stocks (1916) 33
West. R. 864 (Al.) ; Seay v. Summerville Hardware Co. [1917] 1 W.
W. R. 1497 (Al.). So also a Saskatchewan case cited further on: Weidman
v. MoClary Manuf. Co. [1917] 2 W. W. R. 210.

"Stat. L. Am. Act 1917 (c. 3), s. 40, embodied in Al. 1906, s 77.

20 Q. 1861. s. 91, and 1877, s. 35; P. 1913, s. 112; L. Is. 1886 (1914),
ss. 106-110.

21 Bond v. McClay [1903] S. R. Q. 1. Eyre v. McDowell was there
held to be applicable, just as in New South Wales, tkc.

362 CREDITORS. RECTIFICATION. [Ch.viii.

on taking the whole registered interest of the debtor if he succeeds
in getting his transfer registered — just as in the majority of juris-
dictions already referred to.

In Western Australia 2- also additional provision is made with
respect to the interest taken by a .purchaser from the sheriff, the
enactments otherwise following the general Australian model. Un-
registered interests are not to " prevail against a sale by the sheriff "
unless a caveat has been filed before the registration of the execu-
tion; "in the absence of a caveat" unregistered interests are ex-
tinguished, and these, as well as the debtor's registered interest,
pass to the purchaser on registration of his transfer. This enact-
ment is only intended to protect a purchaser from the sheriff, and
only operates as such protection in case a sale is made; rights
under unregistered interests can still be asserted at any time before
sale.23

In British Columbia and Saskatchewan 24 the plan has been
adopted of making the judgment (in the former) and the execu-
tion (in the latter), when registered, "a lien or charge on all the
lands of " the debtor, and (in British Columbia) as though
" charged in writing by the " debtor " under his hand and seal."
These provisions as to * charge " are in British Columbia contained
in a general statute, but in Saskatchewan in the registration statute
itself.25 It is further provided in British Columbia — in the reg-
istration statute itself (s. 137) — that the registered judgment
ceases to be a charge on the land unless after due notice a lis pen-
dens is registered by the creditor. In Saskatchewan the registered
execution binds even lands exempt from seizure, though these can-
not be sold by the sheriff; and an order or judgment for alimony
also binds land as though a charge of a life annuity had been reg-
istered.26

Under these enactments the " lands " of the debtor include a
mortgage, and judgments and execution may accordingly be reg-
istered so as to be a charge on the interest of a mortgagee.27
" Lands " does not mean merely " lands registered in the name of
the " debtor, but beneficial interests in land.28 Though registration

22 W. A. 1893, s. 133 ; 1909, s. 14. See Aust. Torr. Syst. 985.

"Clarke v. Roe (1899) 1 W. A. R. 123 (diss. Onslow C. J.).

MB. C. 1911, ss. 22 (1) (g), 137-139, 148, 153-156; Sas. 1917. ss.
60 (e), 149-153.

"British Columbia— Execution Act (R. S. 1911, c. 79), s. 27; Sas.
1917, s. 149 (2). 26S'as. 1917, ss. 103, 149 (2).

27 Re Mandeville [1917] 1 W. W. R. 1522 (B. C).

"Entwisle v. Lenz (1908) 9 West. R. 17, 317 (B. C.) ; Gregory v.
Princeton Collieries [1918] 1 W. W. R. 265 (B. C.) ; Ruttle v. Rowe [1919]
2 W. W. R. 706 (Sas.).

Skct. 1] CREDITORS' RIGHTS. 363

of the judgment or execution has been held to be equivalent in its
effect to the creation of an equitable mortgage,29 there are conflict-
ing decisions as to whether it takes priority over an unregistered
or later registered mortgage.30 The case of a transfer has been dis-
tinguished from that of a mortgage, and the unregistered transfer
held to have priority over the registered judgment or execution.31

In the above cited cases there are two opposing tendencies of
judicial opinion, one in the direction of following the principle of
Eyre v. McDowell (supra, p. 360), the other inclined to treat the
registered judgment or execution as an actual charge on the land
taking priority, by virtue of the registration statutes, over unreg-
istered interests.

In Ireland and Trinidad-Tobago z- the enactments do not differ
in substance (though the Irish enactments are quite different in
form) from those of the statutes in other jurisdictions such as On-
tario and Xew South Wales, but the principle of Eyre v. McDowell
(supra, p. 360) has in effect been disregarded in favour of the
view that the provisions of the registration statutes govern. Thus,
in both these jurisdictions a registered judgment has been held to
confer priority of interest over unregistered assurances (not mere
mortgages).33 The principle adopted in these cases is that the
unregistered assurance passes nothing, and therefore leaves the
whole interest shewn on the face of the register to be affected by the
registered judgment (ante, p. 114). This principle has been
acted on under a system of deed registration.34

An order of court for land to be sold or mortgaged would seem
to be registrable and to operate as a caveat.85

"Weidman v. McClary Manuf. Co. [1917] 2 W. W. R. 210 (Sas.).

"Yorkshire Guarantee Securities Corp. V. Edmonds (1900) 7 B. C. R.
348, and Gregory v. Princeton Collieries, supra (unregistered mortgage
held prior) : Union Bank of Canada v. Lumsden Milling Co. (1915) 31
West. R. 801 (Sas.), and Bank of Hamilton v. Hartery (1919) 58 Can.
S. C. R. 338 (judgment registered first held prior to subsequently registered
mortgage of earlier date, and Yorkshire Guarantee v. Edmonds overruled.

nSchlosser v. Colonial Invest. Co. [1917] 1 W. W. R. 1045 (Sas.) ;
Weidman v. McClary Manuf. Co., supra; Rogers Lumber Yards v. Stuart
[1917] 3 W. W. R. 1090 (Sas.).

■ I. 1891, ss. 21, 39, 45. and 1910 O. 4, rr. 16, 21 ; Tr. 1902, ss. 92, 93.

-Pirn v. Coyle [1907] 1 I. R. 330; Seecharan v. Judge Mara} (1909)
1 Tr. & Tob. 344. Some eases in Canada to the same effect must be con-
sidered as now overruled in their own jurisdictions : see Re Herbert and
Gibson (1889) 6 Man. R. 191; Re Massey and Gibson (1890) 7 Man. R.
172; Re Rivers (1893) 1 Terr. R. 464.

uAlagappa Chitty v. Vanjoor Madahsar (1907) 10 Str. Sett. R. 107.

"An order for an infant's land to be mortgaged has been held to be
unregistrable: In re Marchan, Tr. and Tob. Gaz. 30 Jan. 1919. Sed. qu.

3Gi CREDITORS. RECTIFICATION. [Ch. vm.

SECTION 2 — VESTING OKDERS.

When the right to the registered ownership passes to a person
other than the registered owner for the time being, the necessary
change in the register is sometimes made on production of an in-
strument or evidence of title other than a statutory or registrable
instrument executed by the registered owner. The most usual
occasion is the impossibility or difficulty of obtaining the execution
of an instrument by the person whose name is on the register, and
the most usual evidence of the right to the registered ownership
being in another person is a vesting order or similar instrument
made by competent authority. Such a change in the register is not,
properly speaking, rectification — which implies the existence of a
mistake; however, such alterations of the register as are here re-
ferred to are sometimes included in the expression " rectification/'
and in some jurisdictions the statutes do not clearly distinguish
between rectification and alteration.

In England one section in the statutes covers both alteration and
rectification, as regards the authority conferred on the court, and
the word " rectify " seems to apply to every kind of change in the
register that is made directly in pursuance of the court's order.1
A separate authority is conferred by statutory rule on the registrar
to make necessary alterations of the register when " the power of
disposing of " the land or charge has " become vested in some per-
son other than the registered proprietor " under " any statute or
statutory power " or " order of court " or " paramount title." 2 The
registrar has also authority to notify on the register the determina-
tion of leases, whether merely noted as leases or registered as lease-
hold land, and in the latter case " the leasehold title may be
closed." 3

In Ireland, on u the defeasance of the estate of a registered
owner " under various circumstances, including " a power of ap-
pointment " and " a vesting order," the person entitled to be regis-
tered may apply for such registration and be registered accordingly ;
these provisions apply also to leasehold land, but nothing is said
about ordinary leases when merely registered as burdens.4

1 Eng. 1875, s. 95.

2 Eng. 1903-8 Rules, rr. 151, 174. The relevant sections of the statute
and the statutory rules are printed together in Own. & Inc. 381, 382,
And see Own. & Inc. 242-245.

* Eng. 1875, s. 20 ; 1903-8 Rules, rr. 218-222 ; Rr. & Sh. 442 ; Own. &
Inc. 46.

4 1. 1891, ss. 39, 43, 53 ; 1910 O. 4. rr. 14, 15. Rectification proper is
dealt with in a separate section : I. 1891, s. 34.

Sect. 2J VESTING ORDERS. 365

In Ontario, there are provisions in both statute and rules an-
swering, though not in detail, to the English provisions for noting
the determination of leases, both when merely noted and when reg-
istered as leasehold land; the only relevant provision covering the
case of vesting orders is an enactment corresponding with the
English enactment on rectification generally.5

In England, Ireland, and Ontario, the registered interest of
which the ownership is thus to be altered is referred to as "land
or charge," leases being dealt with separately. The Irish statute
expressly mentions " vesting order," and in both England and Ire-
land a vesting order in an applicant's favour would be sufficient
evidence of his right to be registered in place of the existing owner :
but apparently in Ontario this would be so only if the vesting order
contained a specific direction for alteration of the register. The
English rule (r. 151) refers by implication to vesting declarations
under the Trustee Acts; in Ireland and Ontario the production of
such a declaration would not seem to justify an alteration of the
register unless accompanied by an order of the court.

The power of making vesting orders for the purpose of having
the register altered would extend to such cases as land remaining
vested in a corporation at the time of its dissolution.8 When the
land in such a case is leasehold, and the Crown makes no claim, it
would be sufficient for the determination of the lease to be noted
on the register ; in England the " leasehold title " would be closed.7

In Fiji and Federated Malay States,8 when the court has made
an order "preferring as proprietor of lands any person other than
the registered proprietor," and in New Zealand,9 " vesting any
estate or interest " in any person, the order is to be entered on the
register, and has no vesting effect until so entered. The implied
reference in the New Zealand statute is of course to orders under
the Trustee Acts.

In British Columbia and Leeward Islands there are merely
enactments giving the court general power over the register: in
British Honduras even this general power is not expressly con-
ferred, though no doubt implied.10

"On. 1914. ss. 28, 70 (7). 115; (On. 1914, ss. 115-117, are close adapta-
tions of Ens. 1875. ss. 95-97) 1911 Rules, rr. 31, 42.

•An Australian case seems1 to be in point: Re Clarke and fiolomon's
Agreement Trusts (1905) 5 S. R. (N. S. W.) 498.

TEng. 1903-8 Rules, r. 218; Tuff (C. & C.) Ltd. v. Registrar [1918]
W. N. 26.

•Fi. 1876 (1906). s. 92; F. If. S. 1911, s. 69.

• N. Z. 1915. s. 92.

"B. C. flttl, ss. 110-112: L. Is. 1886 (1914). s. IMS: B. II. 1!)14. s.
30 (making the register the foundation of title).

366 CREDITORS. RECTIFICATION. [Ch.viii.

In Manitoba ll any " involuntary change of ownership " is in-
cluded in " transmission," so that an application for registration
might be made by the person entitled as in other cases of transmis-
sion. The only other relevant enactment is that giving the court
general power over the register.

In Saskatchewan, Alberta, and North-West Territories,12 the
court is given general powers over the register, and there is also an
enactment in the two latter enabling a beneficiary to obtain an order
removing the registered owner who is trustee of the estate of a de-
ceased owner.

In the remaining nine jurisdictions — the seven Australian, with
Trinidad-Tobago and Jamaica 13 — enactments provide for vesting
orders, when made by the court under the Trustee Acts, being pro-
duced at the registry and treated as authority for altering the reg-
ister by registering as owner the person in whose favour the vesting
order is made; until so registered the order has no vesting effect.
In Queensland and Papua an order for sale of land is placed on
the same footing. In "Victoria and Western Australia power to
make vesting orders is also conferred on the head of the registry
office — the commissioner of titles — though the order can only be
made on evidence that would satisfy the court;14 in Tasmania, Vic-
toria, and Western Australia, special power is conferred on the
head of the registry office to make vesting orders in vendor and
purchaser cases, where the purchaser has paid the purchase money
and taken possession but is unable to get a transfer from the reg-
istered owner.

These vesting orders may be made and registered, for the purpose
of effecting an alteration in the registered ownership, in two classes
of cases. The person claiming the order may be beneficially entitled,
and the land is in effect transferred to him as beneficial owner; or
the change in the registered ownership is merely a change of trus-
tees, in lieu of a transfer or appointment of a new trustee. There
seems to be no enactment in any of the registration statutes now
under consideration (New South Wales, &c.) enabling the change
of ownership on the register to be effected merely on production of
an appointment of new trustees, though in New South Wales the

11 M. 1913, ss. 2, 58, 128.

,2Sas. 1917, s. 73; Al. 1906, ss. 76 (2), 116; Can. 1906. ss. 122, 156.
The repealed s. 115 of Sas. 1909 does not seem to be reproduced in the
present statute.

UN. S. W. 1900, s. 86; Q. 1861, s. 83, and 1877, s. 46; S. A. 1886, s.
184 ; Tas. 1862, s. 112, and 1893, ss. 14, 15 ; V. 1915, ss. 227, 228 ; W. A,
1893, ss. 182, 183; P. 1913, ss. 90, 92; Tr. 1902, s. 114; J. 1888, s. 107.
See Aust. Torr. Syst. 845-847, 995-999.

14 Werner v. Boehm (1890) 16 V. L. R. 73, 81.

Skit. 3] RECTIFICATION OF REGISTER. 367

instrument of appointment has in practice been regarded by the
registry as sufficient authority for registering the new trustees as
owners; Trustee Acts sometimes expressly require the land to be
transferred to the new trustees on their appointment.15

Though there are several reported cases in which vesting orders
have been made for the purpose of placing new trustees on the
register as owners, these orders have all been made ex parte or
by consent,16 and doubt has been expressed as to the power of the
court to make such vesting orders with respect to registered land.17
But on principle it seems difficult to distinguish one case of trustee-
ship from another.

The most usual occasion for a vesting order being made, for the
purpose of vesting land in a beneficiary, is when a purchaser has
paid the price and taken possession but cannot get a transfer.18
Orders have also been made where discharge of mortgage could not
be obtained,19 where an executor refused to transfer to the devisee,20
where a corporation has been dissolved,21 where the registered owner
has been made bankrupt by proceedings in another jurisdiction.22

SECTION 3 RECTIFICATION OF REGISTER.

Kectification of the register, though sometimes denoting any
alteration, properly means an alteration made in the register for
the purpose of putting right an erroneous entry. As a vesting order
is only required for the purpose of effecting a change in the regis-
tered ownership when a formal transfer cannot be obtained, so
rectification is only required when some mistake in the register can-
not otherwise be put right. Occasionally, the court, in deciding in

18 This is so in New South Wales : Trustee Act Amendment Act 1902
(No. 98), s. 5, referred to in Loxton v. Moir (1904) 18 C. L. R. 360, 376.
See Aust. Torr. Syst. 998; Conv. & Prop. L.. 132.

"In re Philpott (1878) 4 V. L. R. 20; Martin v. Martin (1903) 3
S. R. (X. S. W.) 156; In re Fink [1910] V. L. R. 337; In re Hope's
Trusts, i*6. 492.

"In re Fink and In re Hope's Trusts, supra. In the former the
order expressly omitted all reference to the names of the beneficiaries.

"Illustrations are: Ex p. Herring (1880) 1 N. S. W. Eq. 12; In re
Vaughn (1893) 14 N. S. W. Eq. 166. Where the purchaser had not the
certificate of title in his possession, the order was refused: Chambers v.
Bonar (1867) 1 Q. S. C. R. 160; see Aust. Torr. Syst. 846.

» In re Cain (1893) 5 Q. L. J. 93.

*> In re Paten (1896) 17 N. S. W. B. 90.

21 Re Clarke and Solomon's Agreement Trusts (1905) 5 S. R. (N. S.
W.) 498. referred to in note C supra, p. 365.

aRe Greenaway (1910) 27 W. N. (N. S. W.) 112. With this com-
pare Ex p. Settle (1895) 14 N. Z. R. 129. criticised in Aust. Torr. Syst.
992.

368 CREDITORS. RECTIFICATION. [Ch.viii.

favour of the person who claims rectification, will declare the reg-
istered owner a trustee for the claimant, in lieu of ordering the
register to be actually altered.1 So the court will sometimes order
the registered owner to transfer to the person rightfully entitled,
instead of ordering the existing entries on the register to be can-
celled.2

The right to rectification of the register is, so far as it is not
conferred by enactments in the registration statutes themselves,
based on the general powers exercised by the courts with respect to
unregistered land, in pursuance of which mistakes in documents are
set right and public officials compelled to do their duty. In the
case of registered land, the right to rectification may be lost through
the operation of the leading principle of registration of title — the
conclusiveness of the register. The extent and limits of this con-
clusiveness generally, and as regards " Mistake," are dealt with
ante, pp. 94, 129. The right to have the register rectified is con-
fined to cases in which the register is not conclusive against the
claimant for rectification.

The powers of the courts, as regards rectification, though usu-
ally assumed to be ample,3 are necessarily limited by the statutory
conclusiveness of the register, and it is the very circumstance of
these limitations existing that has made it desirable in most juris-
dictions to provide for the payment of indemnity as an alternative
to rectification. Any power of rectifying the register itself neces-
sarily extends to registered instruments.4

In British Honduras the statute is silent on the subject of recti-
fication, and notwithstanding that no provision is made for in-
demnity it would seem that a bona fide purchaser would be entitled
to rely on the register (when once it had become conclusive), if a
mistake had been made in his favour and to the detriment of the
person rightfully entitled (apart from the register).5

In British Columbia, though powers of correcting the register,

lMacdonald (John) & Co. v. Tew (1914) 32 O. L. R. 262.

2 See cases cited in Aust. Torr. S'yst. 839, note 3 ; ib. 844, note 36.

*See Brond v. Bronihall [1906] 1 K. B. 571 (shipping register);
Perpetual Executors Assoc, v. Hosken (1912) 14 C. L. R. 286, 291 (man-
damus) ; Loke Yew v. Port Swettenham Rubber Co. [1913] A. C. 491,
504.

*Cudmore v. Cudntore [1892] S. A. R. 119 (mortgage); Taitapu
Gold Estates v. Prowse [1916] N. Z. R. 825 ; Loke Yew v. Port Swetten-
ham Rubber Co., supra.

'Cases under the Irish Incumbered Estates Acts support this view:
Rorke v. Errington (1859) 7 H. L. C. 617; Power v. Reeves (1864) 10
II. L. C. 645; these are referred to in, and the statement in the text sup-
ported by, In re Walsh [1916] 1 I. R. 40. The register in British
Honduras does not at once become conclusive : B. H. 1914, ss. 14-16.

Sect. 3] RECTIFICATION OF REGISTER. 369

&c. are conferred on the registrar, there seems to be no wide gen-
eral power of rectification expressly given to the court. In all other
jurisdictions (except British Honduras) express powers of rectifi-
cation are conferred by the registration statutes on both registrar
and court; but, even when not expressly made subject to the statu-
tory effect of a registered title, this statutory effect impliedly over-
rides any power of rectification, and must be taken into account
in construing the enactments under which the court or registrar
act. The statutory effect of registration may also override the
court's general and inherent power to rectify erroneous documents.

In England and Ontario 6 the powers of rectification conferred
on the court are extremely wide, though expressly made " subject
to any estates or rights acquired by registration " ; in certain cases,
where the register would otherwise be incapable of rectification and
the person suffering loss would be entitled to indemnity accord-
ingly, the register may be rectified and the right to indemnity
given to the person who thus loses his registered interest. In On-
tario special authority is conferred on the registry officers to cancel
fraudulent entries, and in England 7 detailed powers of correcting
and rectifying the register are conferred by rules on the registrar.

In Ireland 8 the court is expressly empowered to rectify the
register on the ground of " actual fraud or mistake " ; further
power is conferred to rectify by correcting errors in the register
where this can be done " without injury to any person " — that is, to
a person not a party to the proceedings,9 or where the mistake is
admitted and no question of title arises.10 What in effect amounts
to rectification can sometimes be had under the guise of an applica-
tion to the registrar to investigate the title to burdens under s. 29
of I. 1891.11

In New South Wales, Queensland, Tasmania, Yictoria. Western
Australia, Papua, New Zealand, Trinidad-Tobairo and Jamaica,12

•Eng. 1875. ss. 95-97: 1897. s. 7 (2). On. 1914. ss. 115-118, 124 (7».
See Own. & Inc. 255-263; ante. p. 130: Perry v. Vise (1919) 45 O. L. R.
117.

T Eng. 1903-8 Rules, rr. 15-17, 157. 173, 253.

•L 1891. s. 34: 1910 O. 6, r. 6; O. 15. r. 12. See Bro. & GL 138-140.

• In re Walsh [1916] 1 1. R. 40.

10 In re Leonard's Estate [1912] 1 I. R. 212: In re Hussey's Estate, ib.
473.

u In re Owen Smith [1918] 1 T. R. 45.

UN. S. W. 1909. ss. 12 (d), 136-138: Q. 1861. ss. 11 (4), 124, 130,
132; Tas. 1862. ss. 11 (4), 136-138; V. 1915. ss 80. 81. 233 (ii). 234. 245;
W. A. 1893, ss. 76. 77. 188 (ii). 189, 200; P. 1913. ss. 15 (4). 155-157;
N. Z. 1915. ss. 73-78; Tr. 1902. ss. 8 (d). 127-129. 136; J. 1888, ss.
11 (ii), 124. 125. 130. And see Aust. Torr. Syst. 842-847.

b.t.l. — 24

3T0 CREDITORS. RECTIFICATION. [Ch. vin.

the registrar is given power to correct the register and to obtain
the aid of the court when necessary, but the only general and in-
dependent power expressly conferred on the court is the power to
order rectification " upon the recovery of " land, &c. from the regis-
tered owner by the person rightfully entitled. The question of pro-
cedure, and the precise method of rectification, have been the sub-
ject of a number of reported cases in these jurisdictions.13

In the remaining eight jurisdictions — South Australia, Fiji,
Federated Malay States, Leeward Islands, Manitoba, Saskatchewan,
Alberta, North- West Territories 14 — the powers conferred are simi-
lar to those in the Australian jurisdictions just referred to, but with
the important difference that the court may order rectification " in
any proceeding " relating to land, &c. This has been said to give
the court " complete control over the register." 15

Of these jurisdictions Fiji and Federated Malay States stand on
a special footing of their own, inasmuch as in them no provision is
made for payment of indemnity for loss through registration. In
jurisdictions where payment of indemnity is a remedy alternative
to rectification, the courts would naturally have less hesitation in
rectifying even again a bona fide purchaser. In Fiji and Federated
Malay States (as in British Honduras) no indemnity for loss is
provided for, and it might be that an owner who has been registered
by mistake would have to shew a clearer case on the merits in
order to resist rectification.

"Aust. Torr. Syst. 844; Power, Real Prop. Acts (Q.) 159, 167;
Hutch. 91-94.

«S. A. 1886, ss. 60-64, 220 (4) ; Fi. 1876 (1906), ss. 98-100, 108 (5) ;
F. M. S. 1911, ss. 74-76, 79 (e) ; L. Is. 1886 (1914), ss. 140, 141; M.
1913, ss. 55-58; Sas. 1917, ss. 70-73; Al. 1906. ss. 114-116; Can. 1906,
ss. 154-156. See Aust. Torr. Syst. 844 ; Can. Torr. Syst. 199-201.

16 In re Martin [1900] S. A. R. 69, 76, approved by the Privy Council
on appeal: MaEacham v. Colton [1902] A. C. 104.

Sect. 1] TRANSMISSIBLE INTERESTS. 371

CHAPTER IX— DEATH OF REGISTERED OWXER.

SECTION 1 TRANSMISSIBLE INTERESTS.

The devolution of land and interests in it, at or in consequence
of the death of the registered owner, is usually referred to in the
registration statutes as " transmission." The subject is treated in
considerable detail in some of the text-books relating to various
jurisdictions,1 and principally in connexion with transmissible in-
terests. The word " transmission " is also loosely used to describe
change of ownership on mere cesser of interest, such as death of an
annuitant, joint owner, owner of life or other limited interest.
These cases form the subject of Section 2 post. The conse-
quences of the death of a transferor, transferee, or applicant for
initial registration, are referred to elsewhere as specially provided
for in some jurisdictions. The subject-matter of the present Sec-
tion is the devolution and transmission on the register to their suc-
cessors or representatives of the interests of registered owners of the
land itself, of leases, and of mortgages or charges.

The general principle is that on the death of the registered owner
the interest shewn by the register to have been vested in him can-
not be considered as fully and for all purposes vested in anyone
until a new owner is duly registered, either as owner in his own
right, or as the representative of the deceased owner. This princi-
ple is not however worked out in the same way in all jurisdictions.
Who are the persons prima facie entitled to the land in succession
to the deceased owner (apart from being placed on the register as
owners) is a question that is sometimes governed by the general
law as well as the registration statutes. And the persons who would
be entitled in succession, apart from registration, are not always
entitled to be registered as owners of the interest of the deceased
owner. These two matters will be dealt with separately.

In all jurisdictions but three — British Columbia, British Hon-
duras, Leeward Islands — the rule of law by which freehold land
passed either to the devisee or the heir, as the owner died testate or
intestate with respect to it, has been abrogated wholly or in part.
In British Columbia and British Honduras the registration statutes
say nothing expressly on the subject. Tn Leeward Islands,2 how-

1 See Own. & Inc. 246-254 : Br. & Sh. 252-302 ; Bro. & Gl. 67-79, 144,
189-201. 239-242. Aust. Torr. Syst. 874. 1000-1021. Can. Torr. Syst.
249-255. »L. Is. 1886 (1914). s. 27.

372 DEATH OF REGISTERED OWNER. [Ch. ix.

ever, it is enacted that, where the registered owner disposes of his
land by will, " the land shall transmit to the devisee " ; it is as-
sumed, though not enacted, that on intestacy the land passes to the
heir.

In Queensland and Tasmania 3 the rule has been only partially
abrogated, and freehold land passes to the devisee if devised, but to
the personal representative in case of intestacy. In Ireland * the
rule has only been abrogated so far as concerns registered land con-
veyed to a purchaser under the Land Purchase Acts, and such free-
hold land passes on the death of the owner to his personal represen-
tative, in cases of testacy and intestacy alike, whilst as regards
other land the ordinary law remains in force, and heir or devisee
(as the case may be) will take.

In other jurisdictions freehold land passes, whether the owner
dies testate or intestate with respect to it, to the personal represen-
tative. The method of legislation, as it affects registered land, is
not uniform.

In England 5 the enactments are contained in one of the regis-
tration statutes, and relate primarily to unregistered land, though
registered land is expressly referred to. In Ontario 6 the enact-
ments form part of a general statute, and therefore relate primarily
to unregistered land, but include express and detailed provision on
the subject of registered land. Tn Jamaica and Manitoba 7 also
the enactments form parts of a general statute, with only incidental
references to registered land.

In New South "Wales, Victoria, Western Australia, Papua,
and New Zealand,8 the enactments by which freehold land passes
to the personal representative are found in general statutes, and
no special reference is made in them to registered land.

3 Queensland — Intestacy Act 1877 (No. 24), ss. 11, 12. Tasmania —
Deceased Persons Estates Act 1874 (No. 1), s. 4. And see Aust. Torr.
Syst. 1010. It has been held in Queensland that land there does not pass
to a personal representative who is so constituted by re-sealing in Queens-
land letters of administration granted in New South Wales : In re Heath-
cote [19031 S. R. Q. 57; but this seems contrary to the principle enunciated
in Hood v. Barrington (1868) L. R. 6 Eq. 218, 222.

4 1. 1891, ss. 83, 84 ; Bro. & Gl. 189-192. This land is still realty, and
not personalty: Farelly v. Farelly [1918] 1 I. R. 488.

5Eng. 1897, ss. 1-6; Br. & Sb. 252-302. Sect. 2 (2) is now amended
by s. 12 of the Conv. Act 1911 (c. 37).

e Ontario— Devolution of Estates Act (R. S. 1914, c. 119), ss. 3, 13-17.

'Jamaica — Real Property Representative Daw 1903 (No. 12, almost
a transcript of Eng. 1897, ss. 1-5) ; Real Property Representative Amend-
ment Daw 1911 (No. 23) : Intestate Estates Daw 1905 (No. 18), s. 5.
Manitoba— Devolution of Estates Act (R. S. 1913, c. 54), ss. 21. 24.

8 New South Wales— Wills, Prob. & Admin. Act 1898 (No. 13), s. 44.
Victoria— Admin. & Prob. Act 1915 (No. 2611). s. 9. Western Australia —
Admin. Act 1903 (No. 13), s. 8. Papua — Prob. & Admin. Ordinance 1913

Sect. 1] TRANSMISSIBLE INTERESTS. 373

In the seven remaining jurisdictions — South Australia, Fiji,
Federated Malay States, Trinidad-Tobago, Saskatchewan, Alberta,
North-West Territories — and also in Ireland as to the class of land
affected, the registration statutes themselves enact that freehold
land shall on the death of the registered owner pass to his personal
representative.9 Where, as in Saskatchewan, there are also provi-
sions on the subject in general statutes, the latter are treated as the
governing enactments.10

Notwithstanding differences in language and method of legisla-
tion, the result in all jurisdictions seems to be the same, viz., that
whilst the registered owner's interest passes on death to his suc-
cessor— whether devisee, heir, or personal representative — the inter-
est only vests sub modo and subject to the provisions, express or
implied, of the registration statutes. The successor or representa-
tive can neither effectually confer title on another, nor exercise all
the rights of the deceased owner, until he is himself placed on the
register as owner. Occasionally it may be doubtful in whose favour
even a sub modo vesting takes place, and in some jurisdictions pro-
vision is made for an ad interim vesting in a public official.11 The
right to be constituted formal representative of the deceased owner
may depend on whether the property was held by him in trust or
beneficially,12 or whether it was held in his own right or only in a
representative capacity, though these questions are more often raised
when a duly constituted representative seeks to be registered as
owner. It has indeed been held in Australia that the statutes vest-
ing property of a deceased person in the personal representative

(No. 11), s. 14. New Zealand— Admin. Act 1908 (No. 3), ss. 2. 4. See
Aust. Torr. Syst. 1009-1014, and for the effect of probate, &c., on the
devolution of land, see Conv. & Prop. L. 452-459. In Union Bank v. Harri-
son (1910) 11 C. L. R. 492, it was held that land vests in each of
several executors, just as personalty does. (The New South Wales Pro-
bate Acts of 1890 and 1893, under which Union Bank v. Harrison was
decided, are faithfully reproduced in the Act of 1898 above cited : Marshall
v. Smith (1907) 4 C. L. R. 1617, 1632.)

»S. A. 1886, ss. 175, 178: PI. 1876 (1906). ss. 25-31. 82: F. M. S.
1911, ss. 13-17; Tr. 1902, ss. 100-107; Sas. 1917, s. 140: Al. 1906. s. 74;
Oan. 1906, ss. 5. 6. 114: I. 1891. ss. 83-89. In Saskatchewan devolution
of land is dealt with by the Devolution of Estates Act (R. S. 1909, c. 43) ,
see particularly s. 21. In Alberta similarly see s. 2 of the Transfer and
Descent of Land Act (1906. c. 19) : the Act is amended by s. 39 and s.
46 of Stat. Law Am. Acts (1917), c. 3, and 1918, c 4).

10 Rex v. Tschetter [1918] 1 W. W. R. 934 (Sas.).

u New South Wales— Wills. Prob. & Admin. Act 1898 (No. 13), s.
61: Western Australia— Admin. Act 1903 (No. 13). s. 21; Papua — Prob.
and Admin. Act 1913 (No. 11), s. 13. So (as to intestacy only) Queens-
land—Intestacy Act 1877 (No. 24), s. 11: Tasmania— Probate Act 1893
(No. 14), s. 5. And see Aust. Torr. Syst. 1012.

■ In re Cameron (1880) 6 V. L. R. 1, 87.

374 DEATH OF REGISTERED OWNER. [Ch. IX.

relate only to property held by the deceased in his own right, and
do not include property held by him in a representative capacity.13
This decision would seem to apply in other than Australian juris-
dictions, though in some instances provision has been made for such
a case in the registration statutes.1*

The limits of the extent to which the deceased's interest vests
in a person who may be entitled to be, but is not yet, regis-
tered as owner — whether as true successor or as a mere re-
presentative — is best appreciated by reference to the circum-
stances in decided cases. Thus, an action cannot be brought against
a tenant of the deceased.15 On the other hand, an action for tres-
pass could probably be brought in order to protect the interests of
the deceased's estate.16 And land does so far vest as to prevent any
gap in the continuity of the ownership of freehold land between the
deceased and his successor.17 And if land has been the subject of
an informal gift, the donee being put in possession, the appointment
of the donee as one of the donor's executors completes the donee's
title and right to registration.18 In jurisdictions where land passes
to the personal representative a devisee, as such, has no more right
to be registered as owner than any other person, until a personal
representative has been duly constituted.19

Whether heir, devisee, or personal representative, the person (or
one of the persons) to whom the land or other interest passes on the
death of the owner has a right to be registered in his place. The
enactments that confer this right imply by their very terms that,
until so placed on the register, the successor is not fully clothed
with the property and other rights of the deceased owner. These
enactments are in the majority of jurisdictions to be found in the
registration statutes only, but there are a few exceptions, of which
Queensland and Tasmania are instances.20

"Haddock v. Registrar of Titles (1915) 19 C. L. R. 681.

"For instance, in England, as to a deceased trustee in bankruptcy:
Erg. 1903-8 Rules, r. 192.

14 Howie v. Barry (1909) 28 N. Z. R. 681.

"Little v. Dardier (1891) 12 N. S. W. Eq. 319 (before change of law
as to passing of land to personal representative).

17 In re Campion [1908] S. A. R. 1.

"Matthews v. Matthews [1913] V. L. R. 80. The donee (who had
not proved the will) was held entitled to a transfer from the proving exe-
cutors, who had become registered owners.

19 In re Petersen (1890) 9 N. Z. R. 538; In re Allan [1912] V. L. R.
286.

20 Queensland — Intestacy Act 1877 (No. 24), s. 25; Tasmania —
Deceased Persons Estates Act 1874 (No. 1), s. 10. By these enactments
the curator of intestate estates or the administrator is entitled to be
registered as owner in place of a deceased person who dies intestate as to

Sect. 1] TRANSMISSIBLE INTERESTS. 375

In British Columbia, British Honduras, and Leeward Islands,21
the devisee, heir, or personal representative (as the case may be, and
according to the nature of the property) is entitled to be registered,
and (in British Columbia and Leeward Islands) on registration his
title relates back to the death of deceased.22 In British Honduras,
in case of doubt or dispute, some person may be appointed by the
court to be registered " as the representative " of the deceased's in-
terest. In British Columbia the application can only be made on
production of official evidence of probate or intestacy, and must be
made "before the registration of any dealing" with deceased's
interest;23 if the applicant be an executor with merely a power
of sale over freehold land, he will not be registered as owner of the
land but of a " charge." 24 In all these jurisdictions the applica-
tion for registration is treated much as an application for initial
registration, and proper evidence of applicant's title is required.
Provision is made in British Columbia (s. 50), when the regis-
tered successor is an " executor, administrator, or trustee," for
placing on the register a memorandum that the land is held "on
trust" or "upon conditions," &c.

In Ireland,25 so far as concerns freehold land that has not been
conveyed under the Land Purchase Acts, the devisee or heir (as
the case may be) is still the person entitled in succession to a de-
ceased owner, and he will be entitled to be placed on the register
accordingly. Other registered land passes to the personal represen-
tative, both on testacy and intestacy, in the same way as leases and
charges. The enactment relating to " transmission " of " land "
applies also to " charges," and deals with the cases both of a " lim-
ited " and a " full " owner. On the death of a full owner the per-
son to be registered in his place is the person who, on the applica-
tion of someone interested, may be appointed by the registrar, hav-

his registered land. In Victoria a section, which was a duplicate of what
is now V. 1915. s. 232 (formerly V. 1890, s. 193 >. was inserted in
the Admin. & Prob. Act 1890 as s. 12, but is now omitted from the Admin.
& Prob. Act 1915 ; this repealed duplicate section (s. 12) is referred to in
Haddock v. Registrar of Titles (1915) 19 C. L. R. 681, and its appearance
in the Admin. & Prob. Act seems to have affected the construction of the
section as it stood in the registration statute (V. 1890, s. 193).

MB. C. 1911, ss. 2 (def. "transmission"), 50 (am.), 54, 54A ; B. H.
1914, ss. 32-35: L. Is. 1880 (1914), ss. 27-29, 33.

" As to the effect of this in preventing a " gap " in the continuity of
ownership, see a South Australian case : In re Campion [1908] S. A. R. 1.

"There is a similar provision in the South Australian and other
statutes ; see preceding note.

"In re PHjontaine [1917] 1 W. W. R. 667. Compare Tas. 1878. s. 1.

"I. 1891. ss. 37. 43. 83-89: 1910 O. 4, rr. 3-13, 15; Bro. & Gl. 144.
189-201. Dower and curtesy in land conveyed under the Land Purees"
Acts are abrogated, but not estates tail : Longirorth v. Campbell [1910] 1
I. R. 23.

376 DEATH OF REGISTERED OWNER. [Ch.IX.

ing regard to the rights of other persons. If the land passes to the
personal representative, he will be the only person recognized and
entitled, and would seem to have the right to be registered accord-
ingly. Charges would pass to the personal representative in all
cases. The statute however enables the personal representative to
make dispositions of the land, and implies that he need not be actu-
ally registered, and this is said to be the practice;26 whether this
applies to " charges " as well as " land " is not clear. Provision is
made for the personal representative to hold land as trustee for the
persons beneficially entitled, and generally to deal with it as though
it were personalty.

In Queensland and Tasmania 27 a distinction is made, in appli-
cations for registration in place of a deceased owner, between
" land " on the one hand and mortgages and leases on the other,
applications in respect of land being assimilated to applications for
initial registration, and those in respect of mortgages and leases
being more purely formal; in the case of land, the application of
the personal representative as the person entitled upon intestacy is
again assimilated to applications in respect of mortgages and leases.
Thus the devisee is entitled to be registered as owner of freehold
land, devised to him, and the personal representative as owner of
land not devised and of mortgages and leases. In Tasmania an
executor (where freehold land is charged) may be registered as
entitled to sell the land, and any person with a power of disposition
may be registered as owner. In both jurisdictions the clear inten-
tion of the enactments is (though not always well stated) that the
new registered owner is for purposes of dealing with the property to
be regarded as absolute owner, whilst holding it in trust for others
who may be beneficially entitled.

In England and Ontario 28 the statutes draw a distinction, in
the procedure for registering an owner in place of a deceased
owner, between freehold land on the one hand and leasehold land
and charges on the other, but the alteration in the law of succession
by which freehold land passes to the personal representative has
made this distinction of little importance. In England the more
recent rules make the same procedure applicable to both cases. In

MI. 1891, s. 84 (3) ; Bro. & Gl. 192.

"Q. 1861, ss. 41, 88, 89; 1877, ss. 32, 33; Intestacy Act 1877 (No.
24), s. 25 (printed in Aust. Torr. Syst. 243). Tas. 1862, ss. 28, 79-81;
1878, s. 1; 1886, ss. 18. 39; Deceased Persons Estates Act 1874 (No. 1),
s. 10 (printed in Aust. Torr. Syst. 442).

2,Bng. 1875, ss. 41, 42, 46, 47; 1897, ss. 1-5, 6 (4, 5) ; 1903-8 Rules,
rr. 183-192. On. 1914, ss. 56-61: 1911 Rules, rr. 39-41; Devolution of
Estates Act (R. S. 1914. c. 119), s. 3.

Sect. 1] TRANSMISSIBLE INTERESTS. 3;;

England it is expressly provided by rule that the proving executor
only may be 'registered as owner, though another executor who
proves subsequently may also then be placed on the register.29 And,
apart from this rule, a proving executor now has authority to deal
with his testator's land.30 The English decision cited may still
apply in Ontario. It would seem, however, that the land could be
effectually dealt with by the persons who were actually registered as
owners, and without the concurrence of any non-registered executor
being necessary. In Ontario land not disposed of by the personal
representative within three years vests in the person beneficially
entitled, and the latter may then be registered as owner. In Eng-
land it is provided by rule that the personal representatives of a
deceased trustee in bankruptcy are not to be registered in his
place.31 The same principle would probably be acted on, in Eng-
land and elsewhere, with respect to a deceased administrator or (in
some cases) executor.32 In both jurisdictions the person registered
in place of the deceased owner holds the property in trust for others
beneficially entitled, but " as respects any registered dealings " he
is in the position of having taken it " under a transfer for a valu-
able consideration/'

In Trinidad-Tobago 33 the provisions of the registration statute
as to land passing to the personal representative are adapted from
those in England, and there is the same want of complete assimila-
tion between freehold land and chattel interests. As in Ireland,
the personal representative need not be actually registered as
owner ; he ma}* dispose of the land, but nothing is said (herein dif-
fering from the English statute) as to being in the position of a
transferee for value.

Jamaica and Manitoba each present peculiarities. In Ja-
maica 34 the registration statute stands unamended, though im-
pliedly altered by the alteration in the general law vesting freehold
land in the personal representative. The wide distinction that is
drawn in the statute between freehold and other interests does not
now actually exist; the application to be registered in respect of
freehold land is treated like an application for initial registration,
but the mere production of probate, &c. is sufficient in the case of a

aEng. 1903-8 Rules, rr. 183, 184: Own. & Inc. 251, 338.

••Conveyancing Act 1911 (e. 37). s. 12. in effect abrogating In re
Pairley and London, dc, Bank [1900] 1 Ch. 58.

31 Eng. 1903-8 Rules, r. 192 ; Own. & Inc. 253.

"See the Australian case of Haddock v. Registrar of Titles (1915) 19
C. L. R. 681. 689. referred to post. p. 380. MTr. 1902. ss. 98-108.

u J. 1888, ss. 2, 58, 59, 101; Intestate Estates Law 1905 (No. 18),
s. 5. And see note 7, ante p. 372.

378 DEATH OF REGISTERED OWNER. [Ch. IX.

" lease, mortgage, or charge." The title of the new registered
owner of the " lease, mortgage, or charge " (though not of freehold
land) is made to " relate back to " the death of the deceased owner.
In all cases the new registered owner holds in trust for others bene-
ficially entitled, but for purposes of dealing with the property he
is to be regarded as absolute owner. Provision is also made for the
registration as owner of a person in favour of whom the Crown's
right of escheat has been waived, though the land may not be dis-
posed of for seven years, within which time the legal personal re-
presentative is allowed to establish his title.

In Manitoba 35 the alteration in the law of succession to land
has been incorporated in the registration statute, and the latter
enacts that on the " transmission " (which includes change of
ownership by death) of "any land, mortgage, or incumbrance "
(necesarily including leases) application for registration is to be
made, " before the registration of any dealing " with the property,
by the person entitled; on registration of a personal representative,
his title is to " relate back " to the death of the deceased owner.
These provisions are to be found in other statutes, but the Manitoba
statute is peculiar in providing that the new registered owner, if
" an executor, administrator, or trustee under a will," is to be de-
scribed on the register as such; the will is to be deemed to be em-
bodied in the register, the registered owner is to hold the land upon
the trusts to which it is subject, and no dealing is to be registered
unless it be in accordance with the trusts.

The provisions in Saskatchewan, Alberta, and North-West
Territories,36 for the registration of the personal representative in
place of the deceased owner, are substantially the same as in Mani-
toba, with one important exception. The new registered owner
holds the property subject to the beneficial interests of other per-
sons, but for the purpose of dealing with it he is the absolute owner.
The Saskatchewan statute brings "land, or a mortgage, incum-
brance, or lease " together for purposes of applying for registration,
and special provision is made for the protection of possible interests
of infants. In the Alberta and North- West Territories statutes
the latter provision is absent, and the right to apply for registra-
tion of " land " and of a " mortgage, incumbrance, or lease " is con-
ferred by separate enactments. In Saskatchewan a mortgage may
be discharged or transferred without formal transmission being
registered. In North- West Territories a special enactment makes

83 M. 1913, ss. 2, 76, 128.

*Sas. 1917, ss. 140-146; Ai 1906, ss. 74-76; Can. 1906, ss. 114-121,
12.-U.

Sect. 1] TRANSMISSIBLE INTERESTS. 379

a bishop or trustee of a church bodies corporate, and land passes
to their successors in office.

Xew Zealand 3T is the only other jurisdiction in which the pro-
visions for registering the personal representative apply (as in
Manitoba and Saskatchewan) without distinction to all interests
in land alike. Such applications for registration are the same in
procedure, whatever the nature of the interest, and have nothing in
common with applications for initial registration. Nothing how-
ever is said about any " relation back " of the new registered own-
er's title. The property is held " subject to all equities," but the
registered owner is for the purpose of dealings the absolute owner.

In the remaining seven jurisdictions — Xew South Wales,
South Australia, Victoria, Western Australia, Papua, Fiji, Fed-
erated Malay States 38 — the statutes still retain, in differing de-
grees, traces of the distinction between freehold land and other
interests in land, with regard to the procedure for registration of
the personal representative as owner. In Victoria and Western
Australia the enactments referring to registration of devisees are
practically obsolete.39 In South Australia, Victoria, Western Aus-
tralia, Fiji, and Federated Malay States, the title of the personal
representative relates back on registration to the date of death; in
South Australia, Fiji, and Federated Malay States, the personal
representative must apply for registration " before dealing " with
the interest of the deceased owner. But these latter provisions
seem to be of little practical importance, and in some cases apply
to the land itself only, and in some to leases and mortgages only.
In South Australia only is it enacted, both as to land and all inter-
ests in it (therein resembling Manitoba and Saskatchewan), that
no dealing is to be effected by the personal representative until he is
registered, and that the registration of his title "relates back" to
the death of the deceased owner. The intention of all these statutes
seems to be that, where there is more than one executor, &c. to
whom a grant of probate, &c. is made, all shall apply to be regis-
tered as owners, but only in Victoria and Western Australia 40 is
there any enactment on this point; in Victoria (both as to land and
other interests) and in Western Australia (as to "land" only)
every executor or administrator taking a grant must " join and

"N. Z. 1915, ss. 2, 123, 124.

WN. S. W. 1900, ss. 93-96, 119; S. A. 1886, ss. 175-180, 201; V.
1915, ss. 177, 232, 264, 265; W. A. 1893, ss. 132, 187, 219, 220; P. 1913,
ss. 97-100; Fi. 1876 (1906), ss. 82-84, 89; F. M. S. 1911, ss. 64-67.

M V. 1915. ss. 264, 265 ; W. A. 1893, ss. 219. 220 ; Guest's T. of L. Act,
208, note to V. 1890, s. 225.

40 V. 1915, ss. 177, 232; W. A. 1893, s. 187.

380 DEATH OF REGISTERED OWNER. [Ch. ix.

concur in every instrument relating to the land." But it is not
necessary that an executor who does not take a grant shall become
a registered owner, and those who actually do become registered
owners have complete control for purposes of disposing of the pro-
perty.41 When once registered as owners, the registered title can
of course only be affected by means of instruments executed by all
the registered owners.42 In all seven jurisdictions the personal re-
presentative, when registered, holds as absolute owner for purposes
of disposing of the property, but otherwise subject to the beneficial
interests of other persons.

The person who claims the right to be registered as owner in
place of the deceased owner m'ay be either a true successor or merely
a representative. A successor, properly speaking, is one who is
owner in his own right, though he may at the same time be a trus-
tee ; a representative is an owner who holds the property in a repre-
sentative character only, such as official assignees, executors, or
administrators.43 The registration statutes, as interpreted by the
courts, distinguish for many purposes between ownership in the
registered owner's own right, and ownership in a representative
character.44

When the right to be registered in place of a deceased owner
is claimed, the claim may be dealt with differently according as the
deceased was owner in his own right or in a representative char-
acter. Thus, if the deceased owner was an administrator who had
not fully administered the intestate's estate, an administrator de
bonis non will be entitled to be registered as representative of the
original intestate;45 the fees payable will not be those due on an
ordinary transmission, the registration being merely a change of
representation to the intestate's estate.46

The rules relating to the transmissibility of the office of executor
and of administrator are applied, just as in the case of personalty,
in those jurisdictions where land passes to the personal representa-
tive. Thus, on the death of an executor-registered owner, his execu-

* Matthews v. Matthews [1913] V. L. R. 80, where the non-proving
executor was rightfully in possession ; in Victoria all registration is sub-
ject to rights of persons in possession.

"This might not be so in the case of unregistered land, which is so
far on the footing of personalty as to be capable of being fully disposed
of in some jurisdictions by each executor solely : Union Bank v. Harrison,
Jones & Devlin (1910) 11 C. L. R. 492.

43 See Maddock v. Registrar of Titles (1915) 19 C. L. R. 681, 689, 691.

44 In re Cowan [1908] S. A. R. 91 ; Hosken v. Danaher [1911] V. L. R.
214; Maddock v. Registrar of Titles (1915) 19 C. L. R. 681; Blake v.
Bayne [1908] A. C. 384.

48 In re Cowan, supra. ** In re Cowan, supra.

Sect. 1] TRANSMISSIBLE INTERESTS. 381

tor will only be registered as owner of land which belonged to the
original testator if the deceased executor was the latter's sole execu-
tor.47 And, since the office of administrator is not transmissible, the
executor of an administrator-registered owner will not be regis-
tered as owner of land which belonged to the intestate, but the
adminstrator de bonis non will have to apply to be placed on the
register as the intestate's representative.48 The same principle will
govern the case of a deceased official assignee in bankruptcy, and
his personal representative will not be registered in his place, his
office not being transmissible to his personal representative.49 An
official assignee or trustee in bankruptcy is in fact treated, in this
respect, as if he were a corporation sole. Property held by a cor-
poration sole as such does not pass to his personal representative,
but to his successor in office, and so if a body of trustees is made a
corporation.50

In jurisdictions where particulars of beneficial interests are not
entered on the register, the right of the personal representative to
deal with the property can only be challenged by the registry office
under circumstances which raise some suspicion of wrong, or where
the personal representative is not transferring in that character,51
and an administrator has been held entitled to sell the land of
which he is registered owner after a lapse of 25 years from the
intestate's death.52

Apart from any question of representative character or trans-
missibility of an office, the right to be registered in place of a de-
ceased owner is sometimes decided in favour of an equitable as
against a purely legal claim. Thus an executor with merely power
to sell may be registered as owner of the fee simple.53 So the per-
sonal representatives of a deceased owner who is a trustee will not
be required to apply for registration, but may consent to the land
being transferred to new trustees.54

« Maddock v. Registrar of Titles, supra; In re O'Connor (1899) 24
V. L. R. 896. as explained in In re Thomas and McKenzie's Cont. [1912]
V. L. R. 1. And see Ex p. Manning (1905) 5 S. R. (N. S. W.) 453.

** Maddock v. Registrar of Titles, supra; In re Cowan, supra.

*• See Maddock v. Registrar of Titles, supra, at p. 689. This is
expressly provided for by rule in England (ante, p. 377).

MAn illustration occurs in the North- West Territories: Can. 1906. s.
123A, by which a bishop, or trustees of a church, are made bodies corporate.

n In re Fitzmaurice's Estate [1918] 1 I. R. 33. See cases in note 37.
p. 162 ante.

■ Ex p. Equity Trustees Co. and O'HaUoran [1911] Y. L. R. 197.

aIn re Gow (1867) 4 W. W. & a'B. I. 197, before land was by statute
rested in the executor.

**/n re Tararua Cluo (1908) 27 N. Z. R. 928. And see In re O'Con
nor (1899) 24 Y. L. R. 896: Aust. Torr. Syst. 1021.

382 DEATH OF REGISTERED OWNER. [Ch. ix.

In general, the position of a personal representative who is
registered owner is similar to that of a trustee. Although the pro-
perty cannot be made liable for the debt of the registered owner
himself,55 and may be sold in order to pay the debts of the deceased
owner, yet the power of sale cannot be exercised to the prejudice
of any bona, fide purchaser who has become duly registered.58

SECTION 2 — NON-TRANSMISSIBLE INTERESTS.

There are three typical classes of non-transmissible interests :
annuity charged on land for life, interest in land held by the reg-
istered owner as joint owner only, interest in land held for life.
In these cases it is not the interest of the registered owner that
passes to his successor in title, but there is merely a cesser of title
on the death of the registered owner.1

The majority of the statutes make provision for the registra-
tion of the successor, or person in whose favour the cesser of title
operates. No such express provision at all is made in five jurisdic-
tions— Ontario, Federated Malay States, Leeward Islands, British
Honduras, British Columbia. In Federated Malay States 2 the
enactment, corresponding with those in other statutes by which
an annuity on the death of the annuitant is discharged from the
register, omits all express reference to death, though no doubt this is
included in " events " on which the annuity " ceases to be payable."
In British Columbia 8 life estates are only registrable as " charges,"
and no special reference is made to death in the enactments relating
to cancellation of charges.

In England and Ireland 4 provision is made in the statutes and
rules for the registration of the survivor as sole owner on the death
of a joint owner, and for the registration of the person entitled on
the death of a tenant for life under a settlement. The case of the
cesser of an annuity by the death of the annuitant is not expressly

"Balding v. Nicholas (1893) 19 V. L. R. 110; and see Clarke v. Roe
(1899) 1 W. A. R. 123 (bankruptcy).

*® Re Moore and Confederation Life Assoc. (1893) 9 Man. R. 453,
stated in Can. Torr. Syst. 99.

1 Either principle of arrangement and nomenclature can, of course, be
adopted. A different scheme is followed in Own. & Inc. 250. but " cesser "
of a non-transmissible interest is referred to in one of the Irish rules (I.
1910 O. 4, r. 13).

2F. M. S. 1911, s. 55.

* B. C. 1911, ss. 53, 148, 153.

«Eng. 1897, s. 6 (4) ; 1903-8 Rules, rr. 187-191; Own. & Inc. 252,
339, 354. I. 1891, s. 37 (1) ; 1910 O. 4, rr. 12, 13, 15.

Sect. 1] NON-TRANSMISSIBLE INTERESTS. 383

referred to, but is covered by the provisions relating to discharge
of charges generally.5

In New South Wales, South Australia, Tasmania, Victoria,
Western Australia, and Trinidad-Tobago,6 provision is made for
cancellation of an annuity-charge on proof of the death of the an-
nuitant, for registration of a survivor as sole owner on death of a
joint owner, and for registration of the person entitled on the death
of an owner registered in respect of a life estate only. The Victorian
and Western Australian statutes add the case of a " joint proprietor
of any mortgage owned on a joint account in equity."

Queensland, Papua, and New Zealand,7 omit the provision relat-
ing to joint owners, but contain the provisions for death of an-
nuitants and life tenants, though the New Zealand enactment on
the latter is drafted differently. In Fiji 8 the provision for death
of life tenants is omitted, life estates being registrable only as in-
cumbrances. In Jamaica 9 no provision (apparently by an over-
sight) is made with respect to the death of a joint owner of land,
though the case of a '*' joint proprietor of any mortgage owned on a
joint account in equity " is provided for. Otherwise the Fiji and
Jamaica statutes follow those of New South Wales, &c.

In Manitoba, Saskatchewan, Alberta, and North-West Terri-
tories,10 only the case of the death of an annuitant is provided for.

The enactments above referred to all contemplate the case of the
deceased owner having been on the register at the time of death.
If, in a jurisdiction where land passes to the executor, there has
been a devise for life with remainder over and the life tenant dies
without any successor or personal representative of the devisor be-
ing placed on the register, it will be necessary for the devisee in
remainder to obtain a transfer from a registered personal repre-
sentative ; for that purpose, if necessary, an administrator de bonis
non of the original testator will be appointed.11

sEng. 1875. s. 28: 1903-8 Rules, r. 166: Own. & Inc. 308. 310. I.
1891. s. 42 : 1910 O. 4, r. 18 ; Bro. & Gl. 67. And see ante, p. 298.

•N. S. W. 1900, ss. 66, 101; S. A. 1886, ss. 145. 188; Tas. 1862, ss.
60, 88; V. 1915. ss. 164. 268; W. A. 1893, ss. 125, 227; Tr. 1902, ss.
65. 82.

7Q. 1861. ss. 38. 39, 63; P. 1913, ss. 55, 109; N. Z. 1915, ss. 87, 122.

"Fi. 1876 (1906). ss. 18. 19, 73, 90.

• J. 1888, ss. 97, 105.

■ M. 1913, s. 113 ; Sas. 1917. s. 119 ; Al. 1906. s. 64 ; Can. 1906, s. 101.

11 In re Allan [1912] V. L. R. 2S6.

384 STATE INDEMNITY. [Ch.

CHAPTER X— STATE INDEMNITY FOR LOSS.

The indemnity machinery set up by most of the statutes, for
the purpose of compensating persons who suffer loss through others
being registered "with a warranted title, is • complementary to the
provisions by which the warranted title is conferred. The right to
indemnity and the right to land under a warranted title are often
interchangeable rights, as where a right to indemnity arises by
reason of the loss of a registered interest.1

In three jurisdictions — Fiji, Federated Malay States, British
Honduras 2 — the statutes do not provide for indemnity being paid
by the State in the event of the statutory warranty of title operat-
ing to deprive the rightful owner of his property. To this extent
the system of registration of title in these jurisdictions is imper-
fect, since the person who is barred from recovering the land and
from rectification of the register has not the alternative remedy
which the payment of indemnity supplies.3 These three jurisdic-
tions are outside the purview of the present chapter.

In every one of the remaining nineteen provision is made by
the statutes for the payment of indemnity by the State in certain
cases of owners being deprived of property through the statutory
warranty of title operating in favour of others. In many of the
statutes these enactments are grouped with enactments relating to
the raising and keeping of an indemnity fund, and to the con-
clusiveness of the register, whilst in some cases the same enact-
ment relates both to State indemnity and indemnity from
private individuals.4 These matters are better dealt with sepa-

1 This is illustrated by : Russell v. Registrar-General (1906) 26 N. Z. R.
1223; Nicholson v. Drew (1912) 21 West. R. 189 (Sas.) ; and by the
circumstances in Registrar of Titles v. Esperance Land Co. (1899) 1
W. A. R. 118. See also Eng. 1897, s. 7 (2) ; On. 1914, s. 124 (7).

2 In Fiji and Federated Malay States the registry officers are not
" individually liable " for bona, fide acts or omissions ; in British Honduras
the registrar is liable if a caveat is " improperly removed through " his
"carelessness or fraud": Fi. 1876 (1906), s. 120; F. M. S. 1911, s. 89:
B. H. 1914, sch. D r. 10. In British Honduras indemnity for loss of any
legal interest may be recovered from a registered owner before the register
becomes conclusive : B. H. 1914, ss. 14-16, ante, p. 368.

5Tbis is illustrated by the cases under the Irish Incumbered Estates
Acts, referred to under " Rectification " ante, p. 147.

*See Own. & Inc. 263-269; Aust. Torr. Syst. 847-866; Can. Torr. Syst
202-227. For a general account of the " Indemnity fund" from the
American point of view, see Niblack's Analysis of Torr. Syst. Chap. XV..
pp. 290-324. And see Hogg's Insurance Law in Australasia. 18fi.

x.] FOR LOSS. 385

rately. The subjects of the conclusiveness of the register and
the limits to this conclusiveness are dealt with in Chap. IV ante,
p. 94, including the question of obtaining indemnity from the
owner who has the warranted title, or has been responsible for the
wrongful registration (ante, p. 147). The enactments relating to
the mere raising and safe-keeping of the indemnity funds have no
necessary connexion with the working of the provisions for pay-
ment of indemnity, and may be shortly dealt with first of all.

In England, Ireland, and British Columbia,5 the indemnity
fund (called " insurance " or " assurance " funds) is created out
of fees paid on registration transactions, but no separate fee is pay-
able for this purpose on any individual transaction. In other jur-
isdictions an " assurance fund " is raised by means of separate fees
charged for that purpose on certain individual transactions, as
initial applications and in some cases " transmission " applications
on the death of the registered owner of freehold land. In Tas-
mania, Victoria, Western Australia, and Jamaica 6 special con-
tributions to the assurance fund are sometimes required and may
be made as a condition of registering a defective title. The On-
tario T statute differs from others in expressly enacting that pay-
ments of indemnity are not to exceed the amount of the assurance
fund. Xothing is said as to how indemnity is to be paid, should
the assurance fund not be sufficient, in Tasmania, South Australia,
Leeward Islands, Saskatchewan, Alberta, and North-West Terri-
tories. In England, Ireland, British Columbia, Victoria, Western
Australia, and Jamaica,8 already referred to, and in the remaining
jurisdictions — Xew South Wales, Queensland, Papua, New Zea-
land, Trinidad-Tobago, Manitoba9 — any deficiency in the insur-
ance or assurance funds is to be made good out of ordinary public
revenue; the creation of any special fund is thus only a matter of
book-keeping.

Though called " insurance " or u assurance " funds, these funds
are established for the purpose of providing indemnity against loss
through the operation of the statutory warranted title, and are

«Eng. 1897, s. 21. I. 1891, s. 92; 1910 O. 4, rr. 2, 4. B. C. 1911,
s. 136.

• Tas. 1862. ss. 28, 29, and 1886, s. 20 ; V. 1915, ss. 39, 40. 44, 98, 119,
239 ; W. A. 1893. ss. 40, 41, 45, 194, 197, 224 ; J. 1888, ss. 37, 38, 133, 134.

7 On. 1914, ss. 123. 124 (3), 128.

•Eng. 1897, s. 21 (3) : I. 1891, s. 92 (3) ; B. C. 1911, s. 127; V. 1915.
s. 255; W. A. 1893, s. 210; J. 1888, s. 140.

»X. S. W. 1900, ss. 119, 120. 129; Q. 1861, ss. 41. 42; P. 1913. ss.
140-142; N. Z. 1915, ss. 185, 194; Tr. 1902, ss. 31, 32, 148; M. 1913, ss.
156, 162, 163.

R.TX. — 25

386 STATE INDEMNITY. [Ch.

better referred to as " indemnity funds." The State is however in
the position for many purposes of an insurer, in warranting that
the registered title of an owner shall not be impeached — and that
an owner, with a title (registered or unregistered) that would
otherwise be good, shall be indemnified against loss through the
operation of the warranty of title.10 An apt illustration of the
working of this part of registration of title is seen in the case of a
bona fide transferee who is secure and keeps his registered owner-
ship, while a predecessor in title who has wrongfully been deprived
of his registered ownership receives monetary compensation.11

The right to indemnity in general.

Notwithstanding differences in the form of the enactments as
to the kind of loss for which indemnity is payable, these enact-
ments agree for the most part in substance and meaning. The
scheme of all is, with the exception of Leeward Islands, that the
loss of any interest of appreciable value in land upon the register
should be made good to the person damnified, where the loss is
caused by the operation of the statutory conclusiveness of the
register. In Leeward Islands 12 indemnity is expressly made pay-
able to " any person aggrieved by the issue of a certificate of title,"
which seems to cover merely the case of an owner losing land by
some wrongful registration, and not the case of a mortgagee losing
his security through mistake or misfeasance on the part of the reg-
istry office.

In the eighteen remaining jurisdictions the loss of any actual
interest in the land may entitle the loser to indemnity, either by
force of the substantive enactments themselves — which usually
refer to land or any " interest " therein — or by the aid of inter-
pretation clauses defining " land "- as including any interest in
land. Accordingly, the loss of a mortgage, or loss by having land
made subject to a mortgagee, will entitle the owner of the mortgage
or the land to payment of indemnity.13 So the loss of a leasehold
interest will entitle the lessee to payment of indemnity.14 But
the statutes are not uniform with regard to " loss " incurred
through acts or omissions of the registry, where these are not en-
tries in or omissions from the register.

10 See Queensland Trustees v. Registrar of Titles (1893) 5 Q. L. J.
46, 51 ; Fhnucane v. Registrar of Titles [1902] S. R. Q. 75, 94.

11 As in Nicholson v. Drew (1912) 21 West. R. 189 (Sas.).

r- L. Is. 1886 (1914). s. 19. There is no indemnity for loss by regis-
tration under the Hurricane Loan Act 1900: see s. 5.

,u Gases cited in Aust. Torr. Syst. 853, and post, particularly in note
42, p. 390. " Russell v. Registrar-General (1906) 26 N. Z. R. 1223.

X.] FOR LOSS. 387

In England, where an error or omission is made in the register,
or an entry is made by fraud or mistake, the person suffering loss
is to be indemnified.15 In Ireland the insurance fund is to be ap-
plied in indemnifying owners of land or incumbrances for loss
through mistakes on initial registration, and for loss on subse-
quent registrations obtained by forgery or fraud, or error on the
part of the registry office.16 In Ontario a person deprived of an
interest in land, by its being placed on the register, or by another
person being registered as owner through fraud, or by reason of
error in the registry, is entitled to indemnity.17 In these three
jurisdictions it seems clear that, whatever the remedy of a person
injured through some misfeasance of the registry office,18 there
would be no right to indemnity under the registration statutes,
unless the misfeasance involved some entry in or omission from the
register by which some interest already vested in the person in-
jured were lost. Thus, there would seem to be no right to indem-
nity by reason of loss arising from an incorrect certificate of official
search.19

In seven jurisdictions — Xew South Wales, Queensland, Vic-
toria, Western Australia, Papua, Trinidad-Tobago, Jamaica 20 —
there are enactments which, as judicially interpreted in a Victorian
case,21 also permit of no indemnity being paid for a mere money loss
caused by the misfeasance of the registry office, where the misfeas-
ance did not consist in making or omitting an entry in the register,
and the person injured had not acquired any interest in the land.
But this interpretation would perhaps not be adopted in other jur-
isdictions than Victoria, and the dissenting judgment in the case
ha? been held to be more satisfactory.22

In the remaining eight jurisdictions — South Australia, Tas-
mania, Xew Zealand, British Columbia, Manitoba, Saskatchewan,

"Eng. 1897, s. 7.

"I. 1891. s. 93.

■ On. 1914. s. 1L>4.

"As to this, see Aust. Torr. Syst. 850, 855: Ontario Industrial Co. v.
Lindsay (1884) 3 O. R. 66; Green v. Ponton (1885) 8 O. R. 475.

"See Own. & Inc. 263. Contrast the enactments in other jurisdictions
and cases on them in notes post, as to indemnity for loss by misfeasance of
registry.

»N. S. W. 1900, s. 127: Q. 1861. s. 128: V. 1915. b 250: W. A. 1893. s.
205 ; P. 1913, s. 149 ; Tr. 1902. s. 137 ; J. 1888. s. 138.

^Oakden v. Gibbs (1882), 8 V. L. R. L. 380. See Aust. Torr. Syst.
853. The repealed enactment principally relied on (s. 146 of V. 1866) is
identical with V. 1915. s. 250.

12 Morris v. Bentley (1895) 2 Terr. R. 253. And see cases under
next following group of enactments.

388 STATE INDEMNITY. [Ch.

Alberta, North- West Territories 23 — the relevant enactments draw
a clear distinction between " loss " and " deprivation of land "> — a
distinction held not to exist in the Victorian statute. There seems
therefore to be no room for doubt as to the meaning of these enact-
ments, viz. that indemnity may be had for a loss not amounting to
loss of an already vested interest in land, if caused by any " omis-
sion, mistake, or misfeasance " on the part of the registry office,
even though not involving an entry in or omission from the regis-
ter. Thus, indemnity may be had for loss caused by an imperfect
or incorrect " abstract " or official record of the state of the reg-
ister.24 And the loss may be a mere money loss and not an interest
in the land at all, as for instance in the case of a surety for a mort-
gagor.26

Though the two groups — New South Wales, &c, and South
Australia, &c — differ slightly inter se as above stated, they agree —
differing in this respect from England, Ireland, and Ontario — in
providing separately for " deprivation " of land and " loss " or
damage. In New Zealand and Manitoba 28 the two kinds of in-
jury are dealt with in a single section; in other jurisdictions each
is the subject of a distinct section. In all, the " loss " referred to
is that caused by " omission, mistake, or misfeasance " of the reg-
istry office ; the " deprivation " is referred to as caused by fraud,
wrongful registration of another person, error or omission in the
register, though there are minute differences in the phraseology.
There are also a few other differences in the enactments, to be now
pointed out.

In Queensland and Papua 27 a right of action for loss through
the registry's misfeasance is assumed, and not expressly given. In
these two, and also in New South Wales, Victoria, Western Aus-
tralia, Trinidad-Tobago, and Jamaica,28 the expression " depriva-
tion " of land is used in one section only, and not in that relating
to loss through the registry's misfeasance, thus giving rise to a diffi-
culty of construction (ante, p. 387). In Victoria and Western Aus-
tralia the two principal sections are supplemented (and in effect

23 S. A. 1886, s. 208; Tas. 1862, s. 128; N. Z. 1915, s. 186; B. C.
1911, s. 126; M. 1913, s. 154; Sas. 1917, s. 160; Al. 1906, s. 108; Can.
1906, s. 146. See Can. Torr. Syst. 221.

"Hall v. Yorkton Registrar (1911) 16 West. R. 568 (Sas.) ; Canada
Life Ass. Co. v. Assiniboia Registrar' (1912) 21 West. R. 469 (Sas.).

"Wells and Johns v. Registrar-Greneral (1909) 29 N. Z. R. 101.

*• N. Z. 1915, s. 186 ; M. 1913, s. 154. One cause of " loss or damage "
in New Zealand is " wrongful inclusion of land in any certificate " ; this
occurs in no other jurisdiction.

27 Q. 1861, ss. 126, 128; P. 1913, s. 147, 149. Finucane v. Registrar
of Titles [1902] S. R. Q. 75, 84.

MN. S. W. 1900, ss. 126, 127; V. 1915, ss. 120. 246. 250-252: W. A.
1893, ss. 201, 205-207 : Tr. 1902, ss. 132, 134, 137 ; J. 1888, ss. 136, 138

x.] FOR LOSS. 389

replaced to some extent) by others giving a simpler and more direct
right of indemnity for loss through exercise of the registry's powers,
and also giving a special right of indemnity for mistakes in Crown
surveys and (in Victoria) with respect to land no longer used for
roads. In Trinidad-Tobago the drafting of the section relating to
" deprivation " of land is by reference to another section and diffi-
cult to construe, though the meaning appears to be the same as that
of the other corresponding enactments.

In South Australia, Tasmania, British Columbia, Saskatche-
wan, Alberta, and North- West Territories,29 " loss " through the
registry's misfeasance is more clearly distinguished from " depriva-
tion " of land by the latter expression being used both in its own
proper section and in that relating to " loss." In British Columbia
one cause of " damage " expressly referred to is the misfeasance of
the registry in granting "a certificate of charges or . . . incum-
brance." In British Columbia, and also in Saskatchewan, Alberta,
and North- West Territories, the u bringing land under " the regis-
tration system — one of the causes of loss or deprivation in other
jurisdictions — is omitted; but any such cause of loss seems to be
covered by the registration of another person in place of the right-
ful owner.80

The " loss " or " deprivation " may be either of a registered or
an unregistered interest. There can be no right of indemnity in
respect of loss of a registered interest as such unless the title to
the interest lost is warranted. It may happen that the title (though
entered on the register) is not fully warranted (as in England and
Ontario, with respect to " possessory " title), or that the indemnity
provisions do not apply to it at all.31 So where a particular trans-
action carries with it no warranty of title in the registered owner,
as in the case of a forged instrument being registered.32 But the
right to indemnity will arise, both in the case of an interest re-
moved from the register and an interest which has never been on
the register, if the owner's title is shewn to have been good, and to
have been taken from him solely by the operation of the statutory
conclusiveness of the register in favour of another person.33

29 S. A. 1886, ss. 203, 208 ; Tas. 1862, ss. 125, 128 ; B. C. 1911, ss.
123, 126 ; Sas. 1917, s. 160 ; Al. 1906. ss. 105, 108 ; Can. 1906, ss. 143, 146.

••See for instance: Anderson v. Davy (1882) 1 N. Z. S. C. 302:
Public Trustee v. Registrar-General (1899) 17 N. Z. R. 577; Hayes v.
Bourne (1867) 7 Q. L. J. 146.

"For instance, in British Columbia tbe indemnity provisions apply
only to titles " in the register of indefeasible fees " : B. C. 1911, s. 135.
82 Att.-Gen. v. Odell [1906] 2 Ch. 75.

33 Illustrated by: Russell v. Registrar-General (1906) 26 N. Z. R.
1223 : Spencer v. Registrar of Titles [1906] A. C. 503. And see cases on
double registration under " Mistake " ante, p. 132.

390 STATE INDEMNITY. |Cil.

With respect to what constitutes an interest in land, the loss or
" deprivation " of which confers a right to indemnity, the cases
of a mortgage and of land burdened by a mortgage have already
been noticed (ante, p. 386). The omission of the registry office to
register a mortgage in such a way that it can be found on search,
or to place a caveat on the register by means of which an unregis-
tered mortgage may be protected, may give rise to a claim for in-
demnity.34 A lease registered by mistake may confer a right on
the lessee's transferee, when evicted, to claim indemnity.85 So a
right to dower,36 and an estate in remainder (though only upon its
falling into possession),37 are interests for the loss of which indem-
nity may be had.

The interest of an equitable mortgagee by deposit of the cer-
tificate of title is sufficient to support a claim to indemnity, where
this is lost by the registered owner fraudulently inducing the reg-
istry to issue a new certificate of title on the faith of a declaration
that the original was destroyed.38 And in Victoria (though not in
Western Australia) the interest of such an equitable mortgagee is
indemnifiable even though unprotected by caveat.30

When the legal ownership and right of beneficial enjoyment are
in different persons, either may claim indemnity.40 But if the
equitable owner is not damnified and makes no claim, and the legal
owner has no beneficial interest at all, the latter cannot claim
indemnity for the loss of his bare legal ownership.41

"What is meant by " loss " or " deprivation " of land or an
interest therein is incidentally made clearer to some extent by cases
on the meaning of an interest in land. Thus, a loss or deprivation
may be partial only, as where the land has become burdened with
a mortgage.42 There is no " deprivation " so long as the land or
interest itself can be recovered from the person in whose name it
stands on the register;43 this of course happens whenever the reg-

34 Morris v. Bentley (1895) 2 Terr. R. 253; Setter v. Registrar (1914)
30 West. R. 256. 35 Russell v. Registrar-General, supra.

wMoyle v. Oibbs (1883) 9 V. L. R. L. 26.

37 Finucane v. Registrar of Titles [1902] S. R. Q. 75; Spencer v.
Registrar of Titles L1906] A. C. 503.

mTolley & Co. v. Byrne (1902) 28 V. L. R. 95.

39Tolley & Co. v. Byrne, supra; V. 1915, s. 252. W. A. 1893, s. 207;
1909, s. 17. These enactments are not found in other statutes.

40 See Public Trustee V. Registrar-General (1899) 17 N. Z. R. 577;
Williams v. Papworth [1900] A. C. 563.

"Blackwell v. Davy (1889) 8 N. Z. R. 129.

42 Queensland Trustees v. Registrar of Titles (1893) 5 Q. L. J. 46;
Cox v. Bourne (1897) 8 Q. L. J. 66; Finucane v. Registrar of Titles.
[1902] S. R. Q. 75.

43 Cox v. Bourne and Finucane v. Registrar of Titles, supra.

x.] FOR LOSS. 391

ister is not conclusive as against the person rightfully entitled, or
in other words whenever the register can be rectified in favour of
such a person. The converse — that a case of deprivation arises
whenever land ceases to be recoverable through the register becom-
ing conclusive — is not necessarily true. It has been held for in-
stance that a person who can no longer recover the land by setting
aside a voidable transaction — the land having passed to a purchaser
in whose favour the register is conclusive — has not been " deprived "
so as to be entitled to indemnity.44

A remainderman is not " deprived " of any interest in the land
until the time when, but for the register being conclusive against
him, he would have been entitled to an estate in possession — that
is, on the death of the tenant for life.45

The loss or deprivation must have been, in order to be indem-
nifiable, proximately caused by the mistake or wrongful registra-
tion, and nice questions may easily arise as to the proper applica-
tion of this principle. Thus, it has been held that where a fraud
was committed which was only made possible by misfeasance of the
registry, the fraud and not the registry's misfeasance was the proxi-
mate cause of loss.46 A comparison of the cases of the remainder-
man and the voidable transfer above cited 47 shews the principle
on which the right to indemnity depends, where there is more than
one possible cause of loss. The remainderman's loss was due to the
action of the registry in placing an erroneous construction upon
certain documents and registering the owner as entitled to an
estate in fee instead of a life estate: the owner who lost his land
through the voidable transfer sustained this loss by reason of a
bona fide purchaser eventually becoming registered, and such a loss
might have happened apart from any question of registration.

Connected with the question of proximate cause of loss is that
of contributory negligence, which however is the subject of statu-
tory enactment in one form or another in most of the nineteen jur-
isdictions. In Papua and Leeward Islands the statutes are silent
on this point.48 In other jurisdictions certain cases only of con-

"Fatckes v. Att.-Oen. (1903) 6 O. L. R. 490. This decision is
criticised in Can. Torr. Syst. 209.

"Spencer v. Registrar of Titles [1906] A. C. 503, 510; Finucane v.
Registrar of Titles T19021 S. R. Q. 75. 96.

"Oakden v. Gibbs (1882) 8 V. L. R. L. 380, and see Own. & Inc. 267.

47 Spencer v. R-egistrar of Titles and Favches v. Att.-Oen., supra. In the
latter case some intermediate transfers were in fact forged, but this was
held under the circumstances not to affect the principle on which the case
was decided.

48 But even in Papua (as in most other jurisdictions) no indemnity
is payable for loss through breach of trust : this has some connexion with
the subject of contributory negligence, and is dealt with further on.

392 STATE INDEMNITY. [Ch.

tributory negligence are referred to by the statutes. Only in Eng-
land, Ireland, and Ontario 40 is it expressly enacted that indemnity
is not payable to any person who has " caused or substantially con-
tributed to the loss by " his own " act, neglect, or default." In
England and Ontario " omission to register a sufficient caution/'
&c. for the protection of unregistered interests, is to " be deemed
neglect." In Ontario the failure to protect equitable interests by
caution upon initial registration, and the failure to appear upon
receiving notice of any proceedings at the registry, will also bar
any right to indemnity.

In the remaining fourteen jurisdictions there are enactments
rather resembling the last mentioned provisions of the Ontario
statute. In New South Wales, Tasmania, Victoria, Western Aus-
tralia, New Zealand, Trinidad-Tobago, and Jamaica,50 omission to
enter a caveat and keep it in force, after knowledge of proceedings
for initial registration, disentitles a claimant for indemnity ; in New
Zealand failure to register at a deeds registry a document that
could have been registered there may also be a bar to indemnity.
In Queensland 51 there is no express penalty attached to allowing a
caveat to lapse, as there is in other jurisdictions just referred to.
In South Australia, British Columbia, Manitoba, and Saskatche-
wan,52 knowledge of any proceedings causing loss to the claimant,
and failure to take proper steps accordingly, will be a bar to a
claim for indemnity; defects in foreclosure proceedings are speci-
ally mentioned in the case of British iColumbia. In Alberta and
North- West Territories 53 knowledge of " delay," and omission to
enter and keep in force a caveat, is made a bar.

There is also an enactment relevant to this subject in these jur-
isdictions, which is not found in the statutes of England, Ireland,
or Ontario. This enactment provides (except in North- West Terri-
tories) that indemnity cannot be had for loss through breach of
trust on the part of- a registered owner. In Queensland, Papua,
and New Zealand,54 the word used is " trust " simply, and the en-
actment here applies only to express trusts, so that it is possible to

48Eng. 1897, s. 7 (3) ; I. 1891, s. 93 (2) ; On. 1914, s. 127. Own.
& Inc. 264.

50 N. S. W. 1900, s. 130 (3) ; Tas. 1862, s. 130; V. 1915, s. 256;
W. A. 1893, s. 211 ; N. Z. 1915, ss. 56, 196 ; Tr. 1902, s. 139 ; J. 1888, s.
141. See Aust. Torr. Syst. 750. ■ Q. 1861. s. 21.

82 S. A. 1886, s. 216; B. C. 1911, ss. 14 A (5), 134; M. 1913, s. 161;
Sas. 1917, s. 169.

58 Al. 1906, s. 110; Can. 1906, s. 149. These enactments are not
intelligible as they stand ; apparently some mistake in drafting has been
made.

MQ. 1861, s. 42; P. 19l3, s. 141 (3) ; N. Z. 1915, s. 193.

x.J FOR LOSS. 393

recover indemnity for loss caused by a mere constructive trustee.55
In other jurisdictions the expression used is " trust, whether ex-
press, implied, or constructive," thus excluding the application of
the Queensland case cited. Thus in New South Wales, South Aus-
tralia, Tasmania, Victoria, Western Australia, Trinidad-Tobago,
Jamaica, British Columbia, Manitoba, Saskatchewan, and Alberta,56
indemnity cannot be had for loss through any breach of trust,
whether the trust be express or not. In North-West Territories 5T
however, indemnity may be had on failure to recover from the per-
son primarily liable.

There are some other enactments which appear to be relevant
to the question of contributory negligence. In South Australia,
Western Australia, and New Zealand,58 indemnity cannot be had
for loss through improper exercise of a power of sale, or (in New
Zealand) power of re-entry, nor can indemnity be had in Western
Australia for loss through issue of a special certificate of title when
an unregistered interest is not protected by caveat.59 In New Zea-
land and Saskatchewan 60 no indemnity can be had for loss through
improper use of the seal of a corporation, or though the registration
of an instrument executed by a person under legal disability —
unless disclosed on the instrument.

The principle common to all these enactments directly or in-
directly referring to contributory negligence is that there are cer-
tain matters relating to the title of a registered owner which thf
person dealing with him must investigate for himself, and no in-
demnity can be had if loss ensues through a failure to discover a
defect in the owner's title with regard to them. These matters
vary slightly in different jurisdictions, but they are such as are
considered to be easily investigated by prudent persons. Apart
from actual enactment, a person suffering loss to which he has him-
self contributed by omitting to take reasonable precautions — as by
searching the register, and giving the correct names of persons
against whom search is to be made — will not be entitled to indem-

"Finucane v. Registrar of Titles [1902] S. R. Q. 75, 92.

54 N. S. W. 1900, s. 133: S. A. 1886, s. 211; Tas. 1862, s. 133; V.
1915, s. 241; W. A. 1893. s. 196. and 1909. s. 17: Tr. 1902. s. 141; J.
1888, s. 143; B. C. 1911, s. 132; M. 1913, s. 159: Sas. 1917, s. 170: Al
1906, s. 121. See Ex p. Saunders (1900) 21 N. S. W. 291; Aust. Torr.
Syst. 849.

"Can. 1906, s. 161.

58 S. A. 1886, s. 216 ; W. A. 1909, s. 17 ; N. Z. 1915, s. 193.

MThis in effect abrogates the decision in Tolley de Co. v. Byrne (1902)
28 V. L. R. 95, so far as Western Australia is concerned ; ante, p. 390.

«°N. Z. 1915, s. 193; Sas. 1917. s. 170. See Aust. Torr. Syst. 851:
Can. Torr. Syst. 217.

394 STATE INDEMNITY. [Cil.

nity.61 The doctrine of contributory negligence is specially ap-
plicable in England, Ireland, and Ontario, by reason of the provi-
sions in the statutes making the claimant's " act, neglect, or de-
fault" a bar to indemnity (ante, p. 392). In these three jurisdic-
tions even the " act " of presenting a forged instrument for regis-
tration will preclude the person presenting it (usually a transferee
or mortgagee) from any right to indemnity when his registration is
subsequently vacated.62 In other jurisdictions — where the stat-
utes do not contain the enactment on " act, neglect, or default "
above referred to — the rule would appear, on general principles, to
be the same,03 and the doctrine of contributory negligence would
seem to apply as in England, Ireland, and Ontario.

Apart from cases of contributory negligence, &c, indemnity
cannot always be recovered for loss. Sometimes the area of the
land is not considered to be warranted, and indemnity cannot then
be had if the actual area is less than that appearing on the register.64
In British Columbia 65 it is enacted that indemnity cannot be recov-
ered for " any error or shortage in area " of land according to a
plan filed in the registry.

The subject of overlapping grants from the iCrown is specially
dealt with in some jurisdictions. In eight this is not referred to at
all by the statutes, viz. England, Ireland, Ontario, "Manitoba,
Queensland, Papua, Jamaica, and Leeward Islands. In Trinidad-
Tobago 66 it is expressly enacted that " the Crown or the assurance
fund shall not under any circumstances be liable for compensa-
tion for any loss ... in any case in which the same land may have
been included in two or more grants from the Crown." In New
Zealand, British Columbia, and Saskatchewan,67 there are similar
enactments, but referring only to " the assurance fund " and not
mentioning the Crown; on the construction of these enactments no
indemnity from State funds would seem to be recoverable in any
way for loss through inclusion of land in more than one grant from
the Crown. There are also similar enactments in Victoria and
Western Australia 68 relieving " the assurance fund," but a special
right to indemnity is given for loss occasioned by " inaccuracy " in

61 Miller v. Davy (1889) 7 N. Z. R. 515; Sievell v. Haultain (1911)
18 West. R. 388 (Sas.). See Aust. Torr. Syst. 849.

62 Att.-Gen. v. Odell [1906] 2 Ch. 75.

"See Sheffield Corp. v. Barclay [1905] A. C. 392, upon which the
decision in Att.-Gen. v. Odell was based.

"Burden v. North Alberta Registrar (1913) 25 West. R. 460 (Al.).

• B. C. 1911, s. 132.

"Tr. 1902, s. 141.

"N. Z. 1915, s. 193; B. C. 1911, s. 132; Sas. 1917, s. 170.

68 V. 1915, ss. 241. 251 ; W. A. 1893, ss. 196, 206.

x.J FOR LOSS. 395

a* description of land upon a sale by the Crown. In Xorth-West
Territories 69 indemnity for inclusion of land in more than one
grant from the Crown is expressly allowed, and no distinction is
made between this and other kinds of loss. In the four remaining
jurisdictions — Xew South Wales, South Australia, Tasmania,
Alberta 70 — " the assurance fund " is relieved of liability, but in-
demnity may be had by means of an action against a nominal de-
fendant on behalf of the Crown.

In most jurisdictions it is necessary for a formal action in the
courts to be instituted. But in eight — England, South Australia,
Tasmania, Victoria, Western Australia, Xew Zealand, British
Columbia, Manitoba n — compensation may be paid by the registry
without any formal litigation.

The Measure of Damages.

The measure of damages for which indemnity may be had is
of course the value of the interest lost. In the case of land this
will ordinarily be the value of the land, but not more than the
actual loss suffered.72 The loss may be the amount of an incum-
brance on the land, or the sum required in order to recover posses-
sion of the land.73 If the interest lost is a mortgage or charge on
the land, the amount recoverable will be the amount of the charge,
or (if the charge be an annual one) its capitalized value.74

The value of the land is to be taken as at the time of the loss,
which means the time of the right of action accruing.75 This, in
the case of a remainderman claiming indemnity, is not necessarily
the time of the land being first placed on the register, but the time
of the loss is the moment when the remainder would, but for the
registration, have fallen into possession.76

■ Can. 1906, ss. 143, 161.

WN. S. W. 1900. ss. 126, 133; S. A. 1886. s. 214: Tas. 1862. ss. 125.
133: Al. 1906. ss. 105, 121.

"Eng. 1897. s. 7 (5) : S. A. 1886, s. 210; Tas. 1893, s. 7: V. 1MB, s.
253: W. A. 1893, s. 208: N. Z. 1915, s. 188; B. C. 1911, s. 133: M. 1913.
s. 160.

13 Hayes v. Bourne (1895) 7 Q. L. J. 146; Russell v. Registrar-
General (1906) 26 N. Z. R. 1223; Registrar of Titles v. Spencer (1909)
9 C. L. R. 641, 645.

n Cox v. Bourne (1897) 8 Q. L. J. 66 ; Finueane v. Registrar of Titles
[1902] S. R. Q. 75, 94.

uCox V. Bourne, supra; Williams v. Papworth [1900] A. C. 563;
Daly v. Papworth (1906) 6 S. R. (N. W. S.) 572.

n Spencer V. Registrar of Titles [1908] A. C. 235. The history of this
litigation is given in Spencer v. Registrar of Titles (1911) 103 L. T. 647
(P. C.) ; there were three appeals to the Privy Council, and one to the
High Court of Australia.

n Spencer v. Registrar of Titles [1906] A. C. 503.

396 STATE INDEMNITY. LCh.

Where the property lost consists of the land itself, the question
of the value at which it is to be assessed for the purpose of com-
pensation may depend on whether any buildings or other improve-
ments have been placed on the land, and when this was done. The
general rule is that the loss is to be measured by the value of the
land with the buildings then upon it, at the time of the loss and
consequent right of action accruing.77 Subsequent removal of
buildings, or erection of new buildings, will thus not affect the
basis of assessment. The New Zealand statute 78 speaks of build-
ings, &c. erected " prior to the time of " loss, but this would seem
to mean immediately prior, and not at any indefinite period prior
to loss. The general rule as to excluding from the assessment of
compensation the value of buildings erected subsequently to the loss
is expressly laid down by the statutes only in South Australia, Vic-
toria, Western Australia, and Jamaica,79 but would seem to hold
good in other jurisdictions. In South Australia, though the stat-
ute excludes the value of buildings erected subsequently to loss — as
in Victoria, &c. — there follow the words " and with notice thereof,"
viz. of the loss through wrongful registration; this of course could
only apply in the case of the registered owner in possession erecting
buildings and having the register rectified against himself, and
could not apply to a person seeking indemnity in lieu of rectifica-
tion.

A person entitled to indemnity, on the footing of receiving the
value of buildings on the land, is not necessarily entitled to the
value of the fixtures. Thus, a remainderman who is entitled to
indemnity for loss of the land is not entitled to the value of the
fixtures, if these would have passed to the executor of the tenant
for life.80

A right to indemnity for loss of land will not entitle the person
injured to compensation for loss of profits, or for loss through an
action of trespass being brought against him.81 A sum of money
as representing mesne profits, or interest as the equivalent, may
sometimes be recovered, and the New Zealand statute 82 makes
special provision for recovery of interest from time of loss until
judgment in the action; but mesne profits and interest are not

"Spencer v. Registrar of Titles [1908] A. C. 235, 240; Registrar of
Titles v. Spencer (1909) 9 C. L. R. 641, 645.

78 N. Z. 1915, s. 194.

79 S. A. 1886, s. 209 ; V. 1915, ss. 246, 250 ; W. A. 1893, ss. 201, 205 ;
J. 1888. ss. 136, 138.

"Registrar of Titles v. Spencer (1909) 9 C. L. R. 641.
81 Russell v. Registrar-General (1906) 26 N. Z. R. 1223.
88 N. Z. 1915, s. 194.

x.J FOR LOSS. 397

always recoverable as a matter of right, if the compensation received
is otherwise ample.63

The amount recovered as compensation or indemnity is to be
regarded as damages strictly, and not money devolving as the land
would have devolved; consequently, joint tenants who recover a
single sum representing their aggregate loss will be entitled to share
this sum as tenants in common.84

The time limit for indemnity, and notice of action.

Something has been said already as to the date of deprivation or
loss, and the accrual of the consequent right of action (ante, p. 391).
This date is chiefly important by reason of the time limit within
which the claim for indemnity must be made. In all nineteen jur-
isdictions, except Leeward Islands, the statutes themselves state the
time limit. In the Leeward Islands 85 only is reference made to
general legislation on the subject of actions against the Crown. In
South Australia the time limit is twenty years from the date of the
right of action accruing, with no saving of disabilities ; in Manitoba
the limit is ten years, and a further period in case of disability.88
In other jurisdictions the period of limitation is six years and (in
most) a further period for cases of disability. No such further
period is allowed in England or Queensland.87

In jurisdictions where a further period for disabilities is allowed,
infant beneficiaries may be able to recover compensation notwith-
standing that their trustees are barred.88

Only in England 89 is the time limit governed by the claimant's
knowledge of the existence of the claim, and the cause of action
arises only " when the claimant knows, or but for his own default
might know, of the existence of his claim/' Elsewhere the right of
action accrues, and consequently time runs, independently of the
claimant's knowledge.90

In England, Ireland, Ontario, Queensland, Xew Zealand, Sas-

" Spencer v. Registrar of Titles (1911) 103 L. T. 647 (P. C).

"Daly V. Paptcorth (1906) 6 S. R. (N. TV. S.) 572.

B L. Is. 1886 (1914). s. 19 ; the Crown Suits Act 1907 (tfo. 10) is there
referred to. Presumably the general limitation statutes would apply, as in
an ordinary action for damages.

M S. A. 1886, s. 215 ; M. 1913, s. 158.

"Eng. 1897, s. 7 (7) ; Q. 1861, s. 127.

88 Williams v. Paptcorth [1900] A. C. 563, 568 ; Paptcorth v. WiUiams
(1899) 20 N. S. W. 280.

"•Eng. 1897. s. 7 (7).

"Illustrated by: Bonnin v. Andrews (1872) 12 S. A. R. 153; Hamilton
v. Iredale (1903) 3 S. R. (X. S. W.) 535; William* V. Paptcorth, supra.

398 STATE INDEMNITY. [Ch.

katchewan, Alberta, and North-West Territories,91 the statutory
time limit applies only in terms to actions for indemnity out of
State funds, nothing being said in the statutes as to any time limit
in respect of actions for compensation against private individuals.
In other jurisdictions the time limit applies to all actions —
whether against private individuals or persons representing State
funds. Where the registration statutes are silent on this point, the
time limit would presumably be that applicable to ordinary actions
for damages, under the general limitation statutes.

Enactments relating to time limits and not specially cited above
are those of : New South Wales, Tasmania, Victoria, Western Aus-
tralia, Papua, Trinidad-Tobago, Jamaica, and British Columbia.82

Notice must usually be given of the intention to bring an action
before commencing it. In New Zealand 93 notice to the registrar
of a claim under an unregistered deed may be necessary.

Recovery by the Crown of amount paid as indemnity.

In all nineteen jurisdictions the statutes contain provisions for
enabling the amount of the indemnity paid out of 'State funds to be
recovered under some circumstances by the State or Crown. In
England, Ireland, and New Zealand,94 this is the only provision for
recovering the value of land from a person who has been wrongfully
registered; in other jurisdictions the value can be recovered by
private individuals, as pointed out ante p. 147. In England and
Ireland the amount of indemnity paid may be recovered from any-
one who has caused the loss ; in New Zealand, only when the in-
demnity has been paid by reason of some fraudulent conduct, and
from the person who was responsible for the fraud. In Ontario 93
also, the person on whose application the wrongful registration was
made, or who acquired title by fraud or error, is liable for the
amount of indemnity paid; in Leeward Islands96 the statute is to
the same effect, though differently worded.

In Manitoba and Saskatchewan 9T the amount of indemnity
paid may be recovered from the person whose "fraud or wrongful

MEng. 1897, s. 7 (7) ; I. 1891, s. 93 (6) ; On. 1914, s. 124 (3) ; Q.
1861. s. 127 ; N. Z. 1915, s. 195 ; Sas. 1917, s. 167 ; Al. 1906, s. 110 ; Can.
1906, s. 148.

92 N. S. W. 1900, s. 130; Taa. 1862, s. 130; V. 1915, s. 256; W. A.
1893, s. 211; P. 1913, s. 151; Tr. 1902, s. 139; J. 188S, s. 141; B. C.
1911, s. 130. w N. Z. 1915, s. 56.

MEng. 1897, s. 7 (6) ; I. 1891, s. 93 (5) : N. Z. 1915, s. 190.

96 On. 1914, s. 124 (6).

94 L. Is. 1886 (1914), s. 19 (2).

97 M. 1913, s. 154; Sas. 1917, s. 163.

x.] FOR LOSS. 399

act " has caused the loss, and the procedure is peculiar to these two
provinces. In Alberta and Xorth-West Territories,98 when indem-
nity has been paid " on account of any person " the amount may be
recovered from him or his representatives.

In most of the remaining jurisdictions there is no provision for
the indemnity paid being recovered directly from a person who has
caused the loss, but only from his estate or assets under certain cir-
cumstances. In Queensland °9 a person absconding arid subse-
quently found within the jurisdiction is liable. In British Colum-
bia 1 the remedy is against the assets of a person who is dead or out
of the jurisdiction, and in Xew South Wales, South Australia.
Tasmania, Victoria, Western Australia, Papua, Trinidad-Tobago,
and Jamaica,2 against the assets of one who is dead, bankrupt (or
insolvent), or out of the jurisdiction.

There appears to be no reported case in which an action for
recovery of indemnity paid by the State has been brought under
any of these enactments.

" Al. 1906. s. Ill ; Can. 1906. ss. 150, 151.

"Q. 1861, s. 127.

1 B. C. 1911, s. 131.

* N. S. W. 1900, ss. 131, 132 ; S. A. 1886, ss. 218, 219 ; Tas. 1862, s. 132;
V. 1915, s. 240 ; W. A. 1893, s. 195 ; P. 1913, s. 152 ; Tr. 1902, s. 140 ; J.
1888, s. 142.

Appendix of Statutes

Lists of statutes in each jurisdiction are given ante, p. 7 et seq. The
portions of statutes here set out are printed with any amending and
supplemental enaccments introduced into or set out immediately after
the relevant sections. Only such statutes are printed as are not readily
accessible. Thus, it has not been thought necessary to include the
English or Irish statutes, or all the Australian statutes. The jurisdic-
tions whose statutes are in part here set out, or are referred to, are the
following: New South Wales, Victoria, Western Australia, Papua, New
Zealand, Fiji, Federated Malay States, Ontario, British Columbia, Mani-
toba, Saskatchewan, Alberta, North-West Territories, Trinidad-Tobago,
Jamaica, Leeward Islands, British Honduras. References in thick
brackets to sections elsewhere printed do not imply verbal identity, but
merely substantial similarity; in matters of procedure particularly,
there are necessarily differences corresponding with differences in local
conditions.

The Australasian statutes not here printed may be found in Hogg's
Australian Torrens System, viz., those of New South Wales, Queens-
land, South Australia, Tasmania, Western Australia, Fiji. The English
statutes may be found in Hogg's Ownership and Incumbrance of Reg-
istered Land, Brickdale and Sheldon's Land Transfer Acts, and other
text-books, the Irish statute in Browning and Glover's Registration of
Title in Ireland. Both English and Irish statutes are also accessible
in ordinary editions of statutes of the United Kingdom, and (with the
rules) are purchasable at a nominal cost.

NEW SOUTH WALES.

•

The New South Wales statutes up to the year 1905 are printed in
Aust. Torr. Syst. 87 et seq., and the only subsequent statutes that re-
quire mention are those of 1905, 1907, and 1909 (ante, p. 8). These
three statutes are of local and limited scope, and merely provide for
modifications of the ordinary procedure in placing land in certain dis-
tricts (indicated by the titles of the statutes) upon the register.

R.T.L.— 26

402 APPENDIX OF STATUTES.

VICTORIA.

TRANSFER OF LAND ACT 1915

(6 Geo. 5, No. 2740)'.
6 Sept. 1915.

Note. — This is a consolidating statute, amended in 1916. Some
portions of it that are here printed differ from the Act of 1890; others
are frequently referred to in the text ante, or are otherwise sufficiently
important to be set out. Many sections dealing with mere procedure
and administration, or otherwise of less importance, and most of the
schedules, are not printed here; the omitted portions do not usually
differ in any material respect from the Act of 1890 as printed in Aust.
Torr. Syst. 497 et seq., and (when necessary) references to repealed
Acts are inserted.

[Title, preamble, &c: V. 1890, title, &c, Aust. Torr. Syst. 497.]

1. This Act may be cited as the Transfer of Land Act 1915, and
shall come into operation on the first day of October, 1915, and is
divided into parts and divisions as follows: —

Part I. — Officers, s.. 5-15.

Part II. — Bringing land under the Act, ss. 16-46.

Part III. — Certificates of title and registration, ss. 47-86.

Part IV. — Title by possession to land under the Act. Removal of

abandoned easements, ss. 87-104.
Part V. — Roads, passages, &c, ss. 105-120.

■\ Division 1. — Transfers, ss. 121-130.

Division 2.— Leases and sub-leases, ss. 131-134.
Part VI.— Dealings | Division 3.— Mortgages and annuities, ss. 145-
with land. 174

Division 4. — Miscellaneous, ss. 175-182.
Part VII.— Caveats, ss. 183-188.
Part VIII. — Powers of attorney and attestation of instruments,

ss. 189-191.
Part IX. — Registration abstracts, search certificates, and stay

orders, ss. 192-200.
Part X. — Surveys, plans, parcels, and boundaries, ss. 201-214.
Part XI. — Rectification of certificates, ss. 215-224.
Part XII. — Special powers and duties of the commissioner and

registrar, ss. 225-238.
Part XIII.— Assurance fund, ss. 239-242.
Part. XIV. — Actions and other remedies, ss. 243-258.
Part XV.— Offences, ss. 259-263.
Part XVI.— Miscellaneous, ss. 264-281.

2. The Acts mentioned in the first schedule to this Act, to the
extent to which the same are thereby expressed to be repealed, are
hereby repealed: provided that such repeal shall not affect any appoint-
ment, declaration, or any certified statement or list made, or any appli-
cation pending, or any registration effected, or any notice or certificate
given, or any memorial entered, or any caveat lodged, or any seal
prepared, or any title, estate, interest, claim, right of dower, or other

VICTORIA. 403

right or power of attorney, existing or duly acquired under the said
Acts or any of them before the commencement of this Act.

3. Except so far as is expressly enacted to the contrary, no law,
statute, Act or rule, so far as inconsistent with this Act, shall apply or
be deemed to apply to land whether freehold or leasehold which is under
the operation of this Act. This Act shall not be construed as limiting
or abridging any provisions of the Married Women's Property Act 1915.

4. In the construction of this Act, unless inconsistent with the
context or subject-matter —

" Addition " means the description as to residence, profession,
trade, or occupation of any person:

" Annuitant "' means the proprietor of an annuky or charge :

" Annuity " means a sum of money payable periodically and
. charged on land under the operation of this Aet by an instru-
ment hereunder:

" Charge " means the instrument creating and charging an
annuity:

'• Commissioner for taking affidavits " means a commissioner of
the Supreme Court of Victoria for taking affidavits, or a com-
missioner for taking declarations and affidavits:

"Court"' means Supreme Court:

" Incumbrances " includes all prior estates, interests, rights, claims,
and demands which can or may be had, made, or set up in, to,
upon, or in respect of the land:

" Endorsed '' includes anything written upon, or in the margin, or
at the foot of any document:

"Examiner of titles" means one of the examiners appointed under
any of the Acts heretofore in force or under this Act, and any
other person being a barrister and solicitor appointed as such
examiner under this Act:

" Grant " means the grant by his Majesty of land whether in fee
or for years, and includes a lease for years by the board of
land and works granted under the authority of The Amending
Land Act 1865:

" Grantor " means the proprietor of land charged with the payment
of an annuity:

" Instrument " includes a transfer, lease, sub-lease, mortgage,
charge, and creation of an easement:

"Judge" means a judge of the Supreme Court of Victoria:

" Land " includes messuages, tenements and hereditaments cor-
poreal or incorporeal; and in every certificate of title, transfer,
and lease issued or made under this Act, such word also in-
cludes all easements and appurtenances appertaining to the
land therein described, or reputed to be part thereof or appur-
tenant thereto : '

" Person " includes a corporation whether aggregate or sole:

" Proprietor" means the owner, whether in possession, remainder,
reversion or otherwise of land, or of a lease, mortgage, or
charge, whose name appears or is entered as the proprietor
thereof in the register book; and such word also includes the
donee of a power to appoint or dispose of the same:

404 APPENDIX OF STATUTES.

" Settlement " means any document under or by virtue of which
any land is so limited as to create partial or limited estates or
interests :

" Sheriff " includes the sheriff, and any deputy sheriff, or person
appointed to execute any writ of fieri facias:

" Transmission " means the acquirement of the ownership of free-
hold land under the will, or any writing in the nature of a will,
of the proprietor or under any settlement.

[5-15: V. 1890, ss. 5-15, Aust. Torr. Syst. 502; ss. 16-18 of V. 1890
are omitted from V. 1915.]

Part II. Bringing land under the Act.

16. The grants in fee or for years, or by way of perpetual lease, of
all Crown lands remaining unalienated shall be in duplicate, and in
addition to proper words of description shall refer to a map of the land
on the scale at present used, or on such other scale as the Governor in
Council from time to time directs; and after payment of the fee for
the grant, and of the contribution to the assurance fund (in cases
wherein such contribution is payable), shall be delivered to the regis-
trar, who shall register the same in manner hereinafter directed. Such
registration shall be deemed and taken to be an enrolment of record of
the grant; and such enrolment shall relate back to the day of the date
of the grant, and either part of the grant when registered under this
Act shall be sufficient evidence of a duly enrolled grant of the land
therein described to the person therein named on the day of the date
thereof.

17. At the time of the registration of every grant in fee to two
or more persons in joint tenancy for any public purpose, the registrar
shall endorse thereon, and on every subsequent certificate of title, the
words " no survivorship," and shall sign his name thereto.

18. Land alienated in fee by any predecessor of his Majesty before
the second day of October, 1862, may be brought under the operation of
this Act on an application in the form in part I. of the second schedule;
which application may be made by any of the following persons (that
is to say) : —

(i) The person claiming to be the owner of the fee simple, either
at law or in equity:

(ii) Persons who collectively claim to be the owners of the fee
simple, either at law or in equity:

(iii) Persons who have the power of appointing or disposing of
the fee simple:

(iv) The person claiming to be the owner of the first estate of
freehold, if the owner of the first vested estate of inherit-
ance consents to the application:

(v) Trustees for sale of the fee simple: provided that if any
previous consent to their selling is requisite the application
is consented to by the persons required to give such consent:

(vi) The guardian of any infant, or the committee of the estate
of any lunatic or person of unsound mind unable to govern
his estate, so however that the application is made on behalf
of such infant, lunatic or person, and the certificate of title
is directed to issue in his name:

VICTORIA. 405

(vii) A tenant for life within the meaning of the Settled Estates
and Settled Lands Act 1915: provided that the application
contains a direction that the certificate of title be issued in
the names of the trustees of the settlement within the
meaning of that Act, and the trustees consent to the appli-
cation.
Provided always that a mortgagor shall not be entitled to make such
application unless the mortgagee consents thereto; nor a mortgagee
unless in the exercise of his power of sale, and unless the certificate of
title is directed to issue in the purchaser's name; nor a married woman
unless her husband consents thereto, and the application is acknow-
ledged by her in the manner hereinafter mentioned as to the acknow-
ledgment of instruments (except she is entitled to the land for her
separate use or has a power to appoint the same). Provided also that
the attorney of any corporation, howsoever and wheresoever incor-
porated, whether already constituted or hereafter to be constituted by
a power of attorney under a seal purporting to be the common seal of
the corporation giving the power, may make such application for or on
behalf of the corporation of which he is the attorney, and may make
the requisite declaration to the best of his knowledge, information and
belief, and may subscribe the application in his own name.

In applications to bring land under the Act the commissioner may
accept as evidence recitals, statements, and descriptions of facts,
matters and parties in deeds, instruments, Acts of Parliament, or
statutory declarations not less than twenty years old, and an applicant
shall not be required to negative, save as to the knowledge, informa-
tion and belief of himself and his agents, the existence of any unreg-
istered conveyances or assurances affecting any part of the land the
subject of the application.

£19-22: V. 1890, ss. 22-25, Aust. Torr. Syst. 504, 505.J

23. On an application to bring land under this Act on a title
claimed by possession, the applicant shall post on the land the subject
of the application, or at such place as the commissioner directs, a
notice in the form in part II. of the second schedule, either accurately
describing or necessarily including the land claimed by possession,
and shall keep the same so posted for not less than twenty-one days
prior to the granting of such application; and the commissioner may
refuse to issue the certificate until it has been proved to his satisfac-
tion that the requirements of this section have been complied with.

24. If before the registration of the certificate the registrar has
not received a caveat forbidding the same, he shall bring the land
under this Act by registering in the name of the applicant, or in the
name of such person as has been directed in that behalf, a certificate of
title to the land in the form in the third schedule.

[25-28: V. 1890, ss. 28-31, Aust. Torr. Syst. 506, 507 J
29. Any person claiming any estate or interest in the land
described in the advertisement may, before the registration of the
certificate, lodge a caveat with the registrar in the form in the fourth
schedule forbidding the bringing of such land under this Act. Every
such caveat shall be signed by the caveator or by his agent, and shall
particularize the estate or interest claimed; and the person lodging
such caveat shall if required by the registrar support the same by a
statutory declaration, stating the nature of the title under which the

40(5 APPENDIX OF STATUTES.

claim is made, and also deliver a perfect abstract of the title to such
estate or interest. No such caveat shall be received unless some
address or place within the present limits of the city of Melbourne
shall be appointed therein, as the place at which notices and proceed-
ings relating to such caveat may be served.

30. The registrar upon receipt of such caveat shall notify the
same to the applicant, and shall suspend proceeding in the matter until
such caveat has been withdrawn, or has lapsed as hereinafter pro-
vided, or until an order in the matter has been obtained from the full
court of the Supreme Court. The applicant may if he thinks fit
summon the caveator to attend before the full court to show cause
why such caveat should not be removed; and such court may, upon
proof that such caveator has been summoned, make such order in the
premises, either ex parte or otherwise and as to costs, as to such court
seems fit.

31. 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 within that time has
taken proceedings in a court of competent jurisdiction to establish his
title to the estate or interest specified in the caveat, and has given
written notice thereof to the registrar, or has obtained and served on
him an injunction or order of the Supreme Court or a judge restrain-
ing him from bringing the land under this Act. A caveat shall not be
renewed by or on behalf of the same person in respect of the same estate
or interest.

32. After an application has been made to have any land brought
under the operation of this Act, a judge may require all persons having
in their possession or custody any deeds, instruments, or evidences of
title relating to or affecting the land the subject of such application, to
produce the same at the office of titles to the commissioner, and to any
examiner of titles for his inspection, upon such terms and subject to
such conditions and for such charge or fee as the judge making the
order thinks just and fixes. All applications to be made to a judge
under this section may be made by summons in chambers by the appli-
cant owner, or by the person to whom he has directed a certificate of
title to be issued.

33. An applicant may withdraw his application at any time prior
to the registration of the certificate; and the registrar shall in such
case return to the applicant, or to the person appearing by the appli-
cation to be entitled thereto, all muniments of title lodged in support
of the application; but in such case, if a caveator has been put to
expense without sufficient cause by reason of such application, he shall
be entitled to receive from the applicant such compensation as a judge
on a summons in chambers deems just and orders.

34. Upon registering a certificate of title, the registrar shall
endorse upon the last material registered document lodged in support
of the application a memorandum that land included in such document
has been brought under this Act, without specifying the land or refer-
ring to the certificate in which the land brought under this Act is
included, and shall endorse a like memorandum on the memorial of
such document in the registrar-general's office, and shall sign each such
memorandum; and if the documents lodged relate to any property
other than the land included in such certificate, the registrar shall

VICTORIA. 407

return them to the applicant, or to the person appearing by the appli-
cation to be entitled thereto, otherwise the registrar shall stamp each
of them as cancelled, and after he has so stamped them shall retain the
same in the office; and no person shall be entitled to an inspection of
such documents, or to have any copy thereof or extract therefrom,
without the written order of the applicant, or of some person claiming
through or under him, or upon the order of a judge or of the commis-
sioner. No action shall be brought upon any covenant or agreement
for the production of the documents which are so retained, or upon
any agreement to give or enter into a covenant for the production
thereof; and if any such action is commenced, it shall be a sufficient
answer thereto that such documents are retained under this Act. But
every person entitled to production under any such covenant or agree-
ment shall be entitled to obtain from the commissioner the order here-
inbefore mentioned.

35. Where any subsisting lease has been lodged, the registrar
shall, after he has endorsed the same as above provided in the case of
the last material registered document, return such lease to .the person
lodging the same, upon the applicant lodging with the registrar a cer-
tified copy of such lease.

36. The registrar shall keep a book to be called the " record
book," in which shall be kept a record of all deeds and documents
produced and used in support of each application to bring land under
this Act which hereafter is granted. Such record shall state briefly
the nature and date of and parties to every such deed or document, by
whom executed or signed, and whether registered under the general
law or not, and if registered the date of such registration; and the
record book shall be open for inspection by the public during the hours
and days of business on payment of a fee for one hour's search therein
of one shilling, or such other fee as may hereafter be prescribed.

37. In case the applicant, or the person in whose name the certifi-
cate of title has been directed to issue, dies between the application
and the registration of the certificate, it shall be registered in the name
of such applicant or of such person (as the case may be) ; and such
land shall devolve or pass in like manner as if the certificate had been
registered prior to the death of such applicant or person.

38. Land leased for a term of years of which ten years are un-
expired, or leased for years determinable with a life or lives, may be
brought under the operation of this Act as near as may be in a similar
manner, and subject to the same or similar provisions, as are herein-
before contained with respect to freehold land. The application may
be made by persons having such estates and interests in the leasehold
land as are similar or correspondent to the estates and interests of the
persons entitled to apply to bring freehold land under this Act.
Every certificate of title to leasehold land shall always be subject to
the rights and powers of the lessor or his representative, and of any
person entitled to the inheritance in the land immediately expectant on
the term, as well as to the incumbrances hereinafter mentioned as not
requiring special notification. The several provisions of this Act with
respect to freehold land shall apply to leasehold land, with such varia-
tions only as the difference in the nature of such property requires, or
as are necessary to render such provisions applicable to leaseholds for
years.

[39-43: V. 1890, ss. 42-46, Aust. Torr. Syst. 510, 511.]

408 APPENDIX OF STATUTES.

44. Notwithstanding anything hereinbefore contained, the com-
missioner may, after the publication of such advertisements as he
deems fit, direct the registrar to bring any land under the operation of
this Act upon the applicant contributing to the assurance fund such
an additional sum of money as the commissioner certifies under his
hand to be in his judgment a sufficient indemnity, by reason of the
non-production of any document affecting the title, or of the imperfect
nature of the evidence of title or against any uncertain or doubtful
claim or demand arising upon the title.

45. An office copy of any order heretofore made, or which here-
after is made, by the Supreme Court (whether such order hereafter is
in the form of an order confirming the report of the master-in-equity
or the certificate of the chief clerk, or in any other form) confirming
a person as the purchaser of any land sold in fee simple under or in
pursuance of any decree or order of such court, together with an office
copy of such decree or order and such certificate of payment as is here-
inafter mentioned, may, for the purpose of bringing land under this
Act, be deemed by the commissioner sufficient evidence of the title of
the purchaser to such land, subject to any estate or interest appearing
by the decree or order or order of confirmation, or subsequently created
and registered. Every order of confirmation of a purchase which
hereafter is made shall be drawn up so as to refer to a schedule
thereto, containing the name and addition of the purchaser, and a
description of the land purchased by him; and the master-in-equity and
chief clerk are hereby required, after payment and acceptance of all
the money payable in respect of any particular purchase, to give upon
any such office copy order of confirmation a written certificate that the
purchase money, and all interest in respect thereof, payable by any
purchaser named in such certificate for any land therein referred to,
has been wholly paid.

46. Whenever the council of any municipality under part XVIII.
of the Local Government Act 1915 by order directs that any land taken,
purchased, or acquired by them shall be a public highway, and be
deemed to be dedicated to the public accordingly, and that any land
thereby dedicated to the public shall be in lieu of any existing street
or road named in such order, and the Governor in Council has con-
firmed the same, the publication of such order, together with the con-
firmation thereof in the Government Gazette, shall have the effect of
bringing under the operation of this Act such existing street or road,
if not already under this Act, and if an instrument of transfer of such
existing street or road under the common seal of such municipality is
presented to the registrar, accompanied by the Government Gazette
containing the notice required by section 479 of the Local Government
Act 1915 the registrar shall proceed to register such transfer, in like
manner as if it had been accompanied by a certificate of title in the
name of such municipality to the street or road purporting to be so
transferred.

Part III. Certificates of Title and Registration.

47. Certificates of title shall be in duplicate in the form in the
third schedule hereto; and the registrar shall keep a book to be called
the " register book," and shall register or enter by binding up therein

VICTORIA. 409

one of the grants and one of the certificates of title, and shall deliver
the other original (hereinafter called the duplicate) to the proprietor.
Each grant and certificate shall constitute a separate folium of such
book; and the registrar shall endorse thereon, in such manner as to
preserve their priorities, the particulars of all dealings and matters
affecting the land by this Act required to be registered or entered.

48. [Am. 1916, s. 2]. Every duplicate or special certificate of title
hereafter to be issued shall be on parchment or durable paper. One
certificate of title may be issued for several parcels of land though the
same are not contiguous, if in the opinion of the registrar their rela-
tive positions can be sufficiently and conveniently shown upon the plan
on the certificate; and in any case in which it is inconvenient to draw
the plan in the margin of a certificate, it may be drawn upon the back
thereof, or upon a sheet annexed thereto.

49. It shall not be necessary to mention the area of any parcel of
land included in a certificate where the area of such parcel is less than
one acre, and the omission to refer to the area of the land comprised in
a certificate shall not in any case invalidate the certificate.

50. Before the delivery of any duplicate grant or certificate of
title, a receipt for it in the handwriting of the proprietor may be
required to be signed by him when practicable, so as to prevent as far
as may be personation.

51. Every grant and every certificate of title shall be deemed and
taken to be registered under this Act when the registrar has marked
thereon the volume and folium of the register book in which the same
is entered; and every instrument purporting to affect land under the
operation of this Act shall be deemed and taken to be registered when
a memorial thereof as hereinafter described has been entered in the reg-
ister book upon the folium constituted by the grant or existing certifi-
cate of title; and the person named in any grant, certificate of title, or
instrument so registered as the grantee, or as the proprietor of or
having any estate or interest or power, shall be deemed and taken to
be the duly registered proprietor thereof.

52. Every transfer of a mortgage or charge, and every transfer or
mortgage of a lease or sub-lease, shall notwithstanding the provisions
of the last preceding section, be deemed and taken to be duly reg-
istered when a memorial thereof as described in section 58 has been
endorsed on the mortgage, charge, lease, or sub-lease respectively so
transferred or mortgaged, and it shall not be necessary to enter such
memorial in the register book upon the folium constituted by the
grant or existing certificate of title; and in every case where before
the eighth day of November, 1904, such a memorial as aforesaid has
been endorsed upon any mortgage, charge, lease, or sub-lease, but not
entered in the register book upon the folium constituted by the grant
or certificate of title, such endorsement shall be, and shall be held to
have been from the time such endorsement was made, a valid and
effectual registration of the transfer or mortgage specified in such
memorial, and in all respects and for all purposes shall be of the same
effect as if at the time such endorsement was made a memorial of such
transfer or mortgage had been entered in the register book upon the
folium constituted by the grant or certificate of title.

53 [Am. 1916, s. 3]. Every instrument for registration (other than
a transfer) may be in duplicate, and shall be registered in the order

410 APPENDIX OF STATUTES.

of and as from the time at which the same is produced for that pur-
pose; and instruments purporting to affect the same estate or interest
shall, notwithstanding any actual or constructive notice, be entitled
to priority as between themselves according to the date of registration,
and not according to the date of the instrument. Upon the registration
of any instrument in duplicate, the registrar shall bind up one original
in the register book, and shall deliver the other (hereinafter called the
duplicate) to the person entitled.

54. Any lease or mortgage presented for registration may be in
triplicate, and upon the registration thereof as provided by the last
preceding section, the parts not retained shall be delivered to the
person presenting the lease or mortgage for registration; but in every
case of registration in triplicate the word triplicate shall be perforated
through each instrument, and the words " lessor's part " shall be per-
forated through one lease, and the words " lessee's part " through the
other of the two leases returned, and the words " mortgagor's part "
shall be perforated through one mortgage, and the words " mortgagee's
part " through the other of the two mortgages returned.

55. The registrar shall not enter in the register book notice of any
trust, whether express, implied or constructive; but trusts may be
declared by any document, and a duplicate or an attested copy thereof
may be deposited with the registrar for safe custody and reference;
and the commissioner, should it appear to him expedient so to do, may
protect in any way he deems advisable the rights of the persons for
the time being beneficially interested thereunder, or thereby required
to give any consent; but the rights incident to any proprietorship, or
any instrument, dealing, or matter registered under this Act, shall not
be in any manner affected by the deposit of such duplicate or copy, nor
shall the same be registered.

56. After the passing of this Act any transfer, lease, mortgage, or
charge under the provisions of this Act may be executed to the trus-
tees for the time being of any trust registered under the provisions of
part III. of the Trusts Act 1915, describing them as such trustees as
aforesaid, and stating that the trust is registered under the provisions
of the said part, and describing such trust so as to identify it with the
description of the same in the register of successory trusts, and a cer-
tificate of title may be issued to such trustees by the same descrip-
tion, but no such description shall be deemed to affect any person with
notice of the trusts, or entitle, require, or concern any person to in-
quire into or ascertain such trusts; and the persons for the time being
registered as trustees of such trust in the register of successory trusts
shall be deemed the registered proprietors of the property comprised
in such transfer, lease, mortgage, charge, or certificate of title.

57. No instrument affecting land of which any person is regis-
tered as proprietor under this Act, or any memorial of any such instru-
ment, shall be registered under part XIII. of the Real Property Act
1915; and such part so far as it relates to any land which is under the
operation of this Act shall be and be deemed to be of no force or effect
whatever.

58 [1916, s. 4|. Every memorial entered in the register book shall
state the nature of the instrument to which it relates, the time of the
production of such instrument for registration, the name of the party
to whom the same is given, and shall refer by number or symbol to
such instrument, and shall be signed by the registrar.

VICTORIA. 411

59. Whenever a memorial of any instrument has been entered in
the register book, the registrar shall (except in cases wherein the
entire land contained in any grant or certificate is transferred) enter
the like memorial on the duplicate grant or certificate, and on the
duplicate instrument (if any), unless the production of the same is
dispensed with as hereinafter provided; and he shall endorse on every
instrument registered a certificate of the time at which the memorial
was entered in the register book, and shall authenticate such certifi-
cate by signing his name thereto; and such certificate shall be received
in all courts of law and equity as conclusive evidence that such instru-
ment has been duly registered.

[60: V. 1890, s. 62, Aust. Torr. Syst. 515.]

61. No instrument, until registered in manner herein provided,
shall be effectual to pass any estate or interest in any land under
the operation of this Act, or to render such land liable to any
mortgage or charge; but upon such registration the estate or in-
terest comprised in the instrument shall pass, or (as the case may be)
the land shall become liable in manner and subject to the covenants
and conditions set forth and specified in the instrument, or by this
Act declared to be implied in instruments of a like nature; and if two
or more instruments signed by the same purprietor, and purporting to
affect the same estate or interest, are at the same time presented to
the registrar for registration, he shall register and endorse that instru-
ment which is presented by the person producing the duplicate grant
or certificate of title.

62. The proprietor of land under the operation of this Act shall be
entitled to receive a certificate of title to the same; and if any certifi-
cate is issued to a minor, or to a person under any other disability, the
registrar shall state the age of such minor, or the nature of the dis-
ability, so far as known to him.

63. Two or more persons who are registered as joint proprietors
of land shall be deemed to be entitled to the same as joint tenants; and
in all cases where two or more persons are entitled as tenants in com-
mon to undivided shares of or in any land, such persons may receive
one certificate for the entirety, or separate certificates for the undivided
shares.

64. Upon the transfer of any land, and upon the lease of any free-
hold land, to two or more persons as joint proprietors with the words
" no survivorship " endorsed thereon, the registrar shall enter such
words in the memorial of such transfer or lease, and also upon any
certificate of title issued to such joint proprietors pursuant to such
transfer, and sign his name thereto. Two or more joint proprietors of
any land, or of any suchlease, or of any charge, may by writing under
their hands direct the registrar to enter the words " no survivorship "
upon the grant, certificate of title, or instrument relating to the pro-
perty. In every case after such words have been signed by the reg-
istrar, whether under this or any preceding section, it shall not be
lawful for any persons other than the proprietors registered to transfer
or otherwise deal with the property without the order of the Supreme
Court or a judge thereof obtained on motion or petition, or the order
of the commissioner.

65. Before making any such order, the court or judge or com-
missioner shall cause notice of the intention so to do to be advertised
once at least in one newspaper published in the city of Melbourne, or

412 APPENDIX OF STATUTES.

circulating in the neighbourhood of the land, and shall appoint a time
within which it shall be lawful for any person interested to show cause
against such order being made; after the expiration of which time it
shall be lawful for the said court or judge or commissioner to give
directions for the transfer of such land or lease or charge to any new
proprietor or proprietors, solely or jointly with or in the place of any
existing proprietor, or proprietors, or to make such order in the prem-
ises as is just for the protection of any persons beneficially interested
in such property, or in the proceeds thereof; and on such order being
deposited with the registrar he shall make such entries and perform
such acts for giving effect thereto as the provisions of this Act render
necessary.

66. The commissioner, in any case within the 64th section in
which members of friendly societies are interested, may before making
an order thereunder dispense with the advertisement required by the
65th section.

67. No certificate of title issued upon an application to bring land
under this Act, or upon an application to be registered as proprietor
on a transmission, shall be impeached or defeasible by reason or on
account of any informality or irregularity in the application, or in the
proceedings previous to the registration of the certificate; and every
certificate of title issued under any of the provisions herein contained
shall be received in all courts of law and equity as evidence of the
particulars therein set forth, and of the entry thereof in the register
book, and shall be conclusive evidence that the person, named in such
certificate as the proprietor of, or having any estate or interest in or
power to appoint or dispose of, the land therein described, is seised or
possessed of such estate or interest, or has such power.

68. Whenever any certificate of title or any duplicate thereof,
either already registered or issued or hereafter to be registered or
issued under any of the provisions or otherwise under the operation
of this Act, contains any statement to the effect that the person named
in the certificate is entitled to any easement therein specified, such
statement shall be received in all courts of law and equity as conclu-
sive evidence that he is so entitled.

69. Whenever any such certificate of title as aforesaid contains
the words " Together with a right of carriage-way over

[specifying or describing the road or roads over which the easement is
created, and referring to a map endorsed whereon such road or roads is
or are coloured brown'] such words shall have the same effect and shall
be construed as if there had been inserted in such certificate of title
the words contained in the fifth schedule.

70. The third schedule shall be deemed to extend to the. setting
forth of the easements mentioned in the two last preceding sections.

71. In any action for specific performance, or in any action for
damages, brought by a proprietor of any land under the operation of
the Real Property Act No. 140, or of the Transfer of Land Statute, or
of the Transfer of Land Act 1890, or of this Act, against a person who
has contracted to purchase such land, not having notice of any fraud
or other circumstances which according to the provisions of the said
Acts or any of them would affect the right of the vendor, the certificate
of title of such proprietor shall be held to be conclusive evidence that
such proprietor has a good and valid title to the land for the estate or
intor«?fit therein mentioned or described, and shall in any such suit

VICTORIA. 413

entitle such proprietor to a decree for the specific performance of such
contract.

72. Notwithstanding the existence in any other person of any
estate or interest, whether derived by grant from his Majesty or other-
wise, which but for this Act might be held to be paramount or to have
priority, the proprietor of land or of any estate or interest in land
under the operation of this Act shall, except in case of fraud, hold the
same subject to such incumbrances as are notified on the folium of the
register book constituted by the grant or certificate of title; but abso-
lutely free from all other incumbrances whatsoever, except the estate
or interest of a proprietor claiming the same land under a prior regis-
tered grant or certificate of title, and except as regards any portion of
land that by wrong description of parcels or boundaries is included in
the grant, certificate of title, or instrument evidencing the title of such
proprietor, not being a purchaser for valuable consideration or deriving
from or through such a purchaser: provided always that the land
which is included in any certificate of title or registered instrument
shall be deemed to be subject to the reservations, exceptions, condi-
tions, and powers (if any) contained in the grant thereof, and to any
rights subsisting under any adverse possession of such land, and to
any public rights of way, and to any easements acquired by enjoyment
or user or subsisting over or upon or affecting such land, and to any
unpaid rates and other moneys which, without reference to registra-
tion under this Act, are by or under the express provisions of an Act
of Parliament declared to be a charge upon land in favour of any
responsible minister, or any government department or officer, or any
public corporate body, and to any leases, licences, or other authorities
granted by the Governor in Council, or any responsible minister, or
any government department or officer, or any public corporate body,
and in respect of which no provision for registration is made, and also
where the possession is not adverse to the interest of any tenant of the
land, notwithstanding the same respectively are not specially notified
as incumbrances on such certificate or instrument.

73 [Am. 1916, s. 5]. Notwithstanding the reservation in the last
preceding section of any easements, subsisting over or upon or affect-
ing any land comprised in any grant or certificate of title, the registrar
shall specify upon any future certificate of such land and the duplicate
thereof, as an incumbrance affecting the same, any subsisting ease-
ment over or upon or affecting the same which appears to have been
created by any deed or writing.

[74-76: V. 1890, ss. 76-78, Aust. Torr. Syst. 519.]

77. Upon production of a receipt of the treasurer of Victoria for
the full purchase money of any land sold by his Majesty in fee, to-
gether with an instrument dealing with such land signed by the pur-
chaser, the registrar shall endorse upon such receipt such memorial
as he is herein required to enter in the register book upon the regis-
tration of any dealing of a like nature with land registered, and shall
sign such endorsement, and shall endorse such instrument with the
certificate of registration herein required on the registration of a like
instrument after a grant has been registered, and so on from time to
time with respect to any other dealings before the registration of the
grant; and every such instrument shall thereupon be held to be duly
registered under this Act. The registrar shall file such receipt and
instrument in the office, and upon the registration of the grant of the

414 APPENDIX OF STATUTES.

land he shall enter thereon a memorial of every dealing endorsed on
such receipt, and issue a certificate of title to the then transferee of
the land (if any).

78. The registrar with the consent of the commissioner may dis-
pense with the production of any duplicate grant, certificate of title, or
duplicate instrument (if any), for the purpose of entering thereon the
memorial by this Act required. In every such case upon the registra-
tion of the dealing, the registrar shall notify in the memorial in the
register book that no entry of such memorial has been made on the
duplicate, and such dealing shall thereupon be as valid and effectual as
if such memorial had been entered thereon. The registrar may with
the like consent dispense with the production of the duplicate grant or
certificate of title required to be delivered up prior to the registration
of a devisee or other person on the transmission of an estate of free-
hold: provided always that before registering such dealing or trans-
mission the registrar shall require proof by statutory declaration that
the duplicate is not deposited or held as a security or lien, and shall
give at least fourteen days' notice of his intention to register such
dealing in at least one newspaper published in the city of Melbourne,
or circulating in the neighbourhood of the land.

79. [1916, s. 6]. In the event of the duplicate grant or certificate
of title being lost or destroyed, an application may be made to the
commissioner for the issue of a new certificate of title, and the com-
missioner may, on proof to his satisfaction of the loss or destruction
of the duplicate grant or certificate of title, direct the registrar to
cancel the grant or certificate of title for the land then comprised in
the grant or certificate of title the duplicate whereof has been lost
or destroyed, and to issue a new certificate of title for such land:
provided that the registrar before issuing such new certificate shall
give at least fourteen days' notice of his intention so to do in at least
one newpspaper published in the city of Melbourne, or circulating in
the neighbourhood of the land.

80. In case it appears to the satisfaction of the registrar that any
certificate of title or instrument has been issued in error, or contains
any misdescription of land or of boundaries, or that any entry or
endorsement has been made in error on any grant, certificate of title or
instrument, or that any grant, certificate, instrument, entry, or endorse-
ment has been fraudulently or wrongfully obtained, or that any grant,
certificate, or instrument is fraudulently or wrongfully retained, he
may by writing require the person to whom such document 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 or given
to the proper party, as the case requires; and in case such person
refuses or neglects to comply with such requisition, the registrar may
apply to a judge to issue a summons for such person to appear before
the Supreme Court or a judge, and show cause why such grant, certifi-
cate, or instrument should not be delivered up for the purpose aforesaid;
and if such person when served with such summons neglects or refuses
to attend before such court or a judge thereof at the time therein
appointed, it shall be lawful for a judge to issue a warrant authorizing
and directing the person so summoned to be apprehended and brought
before the Supreme Court or a judge for examination.

81. Upon the appearance before the court or a judge of any person
summoned or brought up by virtue of a warrant as aforesaid, it shall

VICTORIA. 415

be lawful for the court or judge to examine such person upon oath, and
(in case the same seems proper) to order such person to deliver up
such grant, certificate of title, or 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 gaol for any period not exceeding
six months, unless such grant, certificate, or instrument is sooner
delivered up; and in such case, or in case such person cannot be found
so that a requisition and summons may be served upon him as herein-
before directed, the registrar shall (if the circumstances of the case
require it) issue to the proprietor of the land such certificate of title as
is herein provided to be issued in the case of any duplicate grant or
certificate of title being lost or destroyed, and shall enter in the regis-
ter book notice of the issuing of such certificate, and the circumstances
under which the same was issued. ,

82. Every draft certificate of title from which an original certifi-
cate is drawn shall be completed so as to accord in all particulars
with the certificate, and shall be preserved in the office until the can-
cellation of the certificate; and at the time at which the certificate is
registered a corresponding number to that upon the certificate shall be
put upon the draft, and the draft shall be signed by the person signing
the certificate; and in the event of any original grant or certificate
being lost or destroyed, or so obliterated as to become illegible, the
commissioner may cause another certificate to be prepared from the
draft, and to be endorsed with all such entries as were upon the origi-
nal, so far as the same can be ascertained from the records of the office
and inspection of the duplicate, and shall make and sign a memoran-
dum upon such document stating that the same is a substituted cer-
tificate to be used in place of the original, and what has become of the
original so far as known or supposed, and from the date of such copy
being so signed the same may be bound up in the register book, and
used in place of the original for the purpose of dealings and transmis-
sions. If the draft cannot be found, the commissioner shall be at
liberty to prepare the substituted certificate from the duplicate or such
other evidence as is available as to the contents of the original. Not-
withstanding anything contained in this section, it shall not be neces-
sary that there shall appear or be shown on the draft certificate of
title from which an original is drawn as provided in this section the
map referred to in the certificate as " the map in the margin " thereof.

83. On any transfer by a sheriff or mortgagee to a purchaser, or
under any decree, judgment, or order of the Supreme or County Court
of any land, estate, or interest under this Act, or for the purpose of
registering any instrument subject to a first mortgage, or for the pur-
pose of rectifying or cancelling any certificate under the provisions of
this Act, or for the purpose of inspection in case of loss, destruction,
or obliteration of any original grant or certificate of title, the registrar
shall by writing under his hand require the judgment debtor, mort-
gagor, or mortgagee or proprietor of the land comprised in any dupli-
cate or triplicate grant, certificate, mortgage, lease, or other instru-
ment, or the person having the possession, custody, or control of any
such duplicate or triplicate, to bring the same into the office of titles
within a period named in such requisition, not less than seven days
from the date thereof, to be endorsed, cancelled, rectified, or otherwise
dealt with as the case requires.

416 APPENDIX OF STATUTES.

84. If any person refuses or neglects to comply with any such
requisition as aforesaid, the registrar or any person interested may
apply to a judge to issue a summons for such person to appear before
the court or a judge, and show cause why the document mentioned
in such requisition should not be delivered up or produced for the
purpose mentioned in such requisition; and upon appearance before
the court or a judge of any person so summoned, it shall be lawful
for the court or judge to examine such person upon oath and to receive
other evidence, or if he does not appear after being duly served with
such summons, then to receive evidence in his absence, and (in case
the same seems proper) to order such person to deliver up such docu-
ment upon such terms or conditions as to such court or judge seems
fit, and the costs of the summons and proceedings thereon shall be in
the discretion of the court or judge.

85. Lists of certificates of title called in for cancellation or recti-
fication, and not brought in, shall be exhibited in the office of titles,
and shall be advertised in the Government Gazette and in such news-
papers and at such time or times as the registrar thinks fit.

86. Every certificate of any person or corporation sole, being the
proprietor of an estate in fee simple, whether in possession, remainder,
or reversion, and every instrument transferring or creating such an
estate to or in favour of any person or corporation sole, shall imply
and be deemed to include the heirs of such person, or the successors
of such corporation.

Part IV. Title by Possession to Land under the Act.
Removal of Abandoned Easements.

87. A person who claims that he has acquired a title by possession
to land registered under this Act may apply to the commissioner for
an order vesting the land in him for an estate in fee simple, or other
the estate claimed.

88. Every such application shall —

(a) be in writing in the form or to the effect of the sixth

schedule, and shall include the several particulars therein

mentioned or referred to;
(&) be signed by the applicant, or in the case of a corporation

by a person authorized in that behalf in writing under the

seal of the corporation;

(d) operate and be taken in law as a statutory declaration by
the person signing it that the several statements therein
are true; and

(e) be accompanied by a plan of survey (with field notes) of
the land, certified by a surveyor licensed under the Land
Surveyors Act 1915.

89. (1) The registrar shall refer each application to an examiner
of titles who shall report thereon to the commissioner.

(2) The commissioner may thereupon in his discretion reject the
application altogether or in part, or may make such requisitions as to
the title claimed to have been acquired, or as to any other matter relat-
ing to the application, as he thinks fit.

90. If an application is not rejected by the commissioner as afore-
said, he shall direct that notice thereof be advertised (once at least)

VICTORIA. 417

in a newspaper named by him published in the city of Melbourne, or
published and circulating in the neighbourhood of the land, and be
given to any person or persons named by him; and notice thereof shall
be given to every person appearing by the register book to have any
estate or interest in the land, or in any incumbrance notified on the
title thereof.

91. The applicant shall cause a copy of the notice of application
to be posted in a conspicuous place on the land, or at such place as the
commissioner directs, and to be kept so posted for not less than twenty-
one days prior to the granting of the application.

92. The commissioner shall appoint a term, not less than twenty-
one days nor more than twelve months from the publication of the
advertisement or service of the notice, at or after the expiration of
which he may, unless a caveat is lodged forbidding the same, grant the
application altogether or in part.

93. (1) The notice shall —

(a) specify the volume and folium of the Crown grant or
certificate of title affected by the application, and any
mortgage, charge, or lease registered as an incumbrance
thereon; and
(6) be dated, and be served by being sent in a registered
letter marked outside " Office of Titles," posted to each
person to be served, at his address (if any) stated in the
register book or supplied by the applicant.
(2) The registrar shall cause a copy of each notice to be filed with
a memorandum of the same having been sent, and the memorandum
shall be sufficient evidence that the notice was duly sent.

94. At any time prior to granting an application the commis-
sioner may in his discretion, notwithstanding any direction previously
given by him as to the application, reject the same altogether or in
part if the applicant fails to comply to his satisfaction with any
requisition made by him within such time as to him seems reasonable.

95. (1) A person claiming any estate or interest in the land in
respect of which any such application is made may, before the granting
thereof, lodge a caveat with the registrar forbidding the granting of
the application.

(2) The caveat shall in all other respects be in the same form, be
subject to the same provisions, and have the same effect with respect
to the application against which it is lodged, as a caveat against bring-
ing land under the operation of this Act.

96. Subject as aforesaid, after the expiration of the time appointed
the commissioner, if satisfied that the applicant has acquired a title
by possession to the land, may make an order vesting the land in the
applicant (or person entitled thereto) for an estate in fee simple, or
other the estate required by the applicant, free from all incumbrances
appearing by the register book to affect the existing title which have
been determined or extinguished by such possession, and free from any
easement notified as an incumbrance which has been proved to the
satisfaction of the commissioner to have been abandoned by evidence
of non-user for a period of not less than thirty years.

97. Where a vesting order is made the commissioner shall direct
the registrar —

R.T.I.. — 27

418 APPENDIX OF STATUTES.

(a) to cancel the existing Crown grant or certificate of title,
and any instrument, entry, or memorial in the register
book, altogether or to such extent as is necessary to give
effect to such vesting order; and

(b) to issue to the applicant, or person entitled to receive the
same, a new certificate of title for an estate in fee simple,
or other the estate acquired in the land comprised in such
vesting order, free from all such incumbrances as afore-
said, and the registrar shall comply with the directions.

98. Upon granting the application, the commissioner may grant
the same conditioned upon the applicant contributing to the assurance
fund such sum of money as the commissioner certifies to be in his
judgment a sufficient indemnity, by reason of the imperfect nature of
the evidence of title, or as against any uncertain or doubtful claim or
demand incident to or which may arise upon the title, or any risk to
which the assurance fund may be exposed by the granting of the appli-
cation.

99. Where a vesting order is made by the commissioner, the
registrar shall on such order being lodged with him make the entries
directed to be made by section 227 of this Act in the case of the vesting
orders therein mentioned, and the making or omission to make such
entries shall be attended by the same results as declared by the said
section in respect of the vesting orders therein mentioned.

100. In cancelling any Crown grant, certificate of title, instru-
ment, or any memorial or entry in the register book, in pursuance of
the direction in that behalf, the registrar shall endorse thereon a
memorandum stating the circumstances and authority under which
the cancellation is made.

101. (1) Any certificate of title issued by the registrar in pursu-
ance of such order shall be issued and registered in manner prescribed
by section 47 of this Act, and thereupon the person named therein shall
become the registered proprietor of the said land.

(2) The certificate shall be dated the date of the lodgment with the
registrar of such order.

102. (1) A proprietor of land may apply to the commissioner for
the removal from the certificate of title of any easement of way noti-
fied thereon as an incumbrance.

(2) The application shall be in writing and dated, and shall be
signed by the applicant.

(3) The commissioner, on being satisfied that the easement has
not been used or enjoyed for a period of not less than thirty years,
may make an order directing the removal of the incumbrance, and
thereupon the easement shall be deemed to have been abandoned and
extinguished.

(4) An order shall not be made until the expiration of twenty-one
days after notice of the application has been given by the registrar to
every person appearing by the register book to have any estate or
interest in the land to which the easement is appurtenant, and also to
any other person named by the commissioner.

(5) The notice shall be in writing and dated, and shall include or
contain a skeleton .plan showing the extent to which such easement is
affected.

VICTORIA. 419

(6) The notice shall be served by being sent in a registered letter
to each person to be served, at his address appearing in the register
book, or in the case of any person named by the commissioner at the
address supplied by the applicant for that purpose.

(7) The registrar shall cause a copy of each notice to be filed with
a memorandum of the same having been sent, and the memorandum
shall be sufficient evidence that the notice was duly sent.

103. (1) If a vesting order, or an order for the removal of an
incumbrance, is made by the commissioner under this part of this Act,
and affects the right, estate, or interest of the registered proprietor of
land included in any certificate of title in respect of any registered
easement appearing thereon, the commissioner shall direct the reg-
istrar to cancel such easement to the extent to which it has been
determined or extinguished upon the original of such certificate, and
also upon the duplicate certificate when brought to him for that pur-
pose, or when the same is lodged in the office of titles for the purpose
of any dealing with the land comprised therein.

(2) The registrar may call in such duplicate certificate for the
purpose of such cancellation, and may detain the duplicate until such
cancellation is effected, and refuse to register any dealing with the
land, or any estate or interest therein, until the duplicate has been
so brought in or lodged.

104. Any certificate of title, entry, removal of incumbrance, or
cancellation in the register book, procured or made by fraud shall be
void as against all parties or privies to such fraud.

Part V. Roads, Passages, etc.

105. Where a block of land not Crown land has been subdivided into
allotments by the owner or registered proprietor of the fee simple, and
such subdivision includes any private road, street, or passage created
and dedicated solely for and to the use and convenience of the owners
or occupiers of the subdivisional allotments of such block, and subse-
quently to such subdivision the fee of all the land abutting upon such
road, street, or passage has been sold and conveyed or transferred to
the purchasers thereof, but the fee of such road, street, or passage
remains outstanding in the owner or registered proprietor who made
such subdivision, or in his legal representatives or persons claiming
under him or them other than such purchasers as aforesaid, and is
subject to no easements of right of way other than the easements of
right of way appurtenant to the land comprised in the said block, or to
particular portions thereof, the person (if only one) or all the persons
(if more than one) solely or collectively entitled as owner or owners,
registered proprietor or proprietors, to the fee simple of the whole of
the land abutting upon such road, street or passage, and of every other
portion of the said block (if any) to which such easements for the
time being are appurtenant, shall, for the purpose of making an appli-
cation under section 109, be deemed solely or collectively (as the case
may be) the owner or owners of the fee simple in equity of such road,
street or passage, subject to subsisting easements and incumbrances,
and the person or persons in whom the fee of such road, street, or
passage remains outstanding be deemed to hold the same in trust for
such equitable owner or owners.

420 APPENDIX OF STATUTES.

106. Where any private road, street, or passage exists on land not
Crown land, and the owner or owners, registered proprietor or pro-
prietors, of the fee simple of all the land abutting upon such road,
street, or passage, solely (if only one) or collectively (if more than
one), is or are the only person or persons entitled to easements over
such road, street or passage, but the fee of such road, street, or passage
is outstanding in some person or persons other than such owner or
owners, registered proprietor or proprietors, as aforesaid, such owner
or owners, registered proprietor or proprietors, shall, for the purpose
of making an application under section 109, be deemed solely or col-
lectively (as the case may be) the owner or owners of the fee simple
in equity of such road, street or passage, subject to subsisting ease-
ments and incumbrances, and the person or persons in whom the fee
of such road, street, or passage is outstanding be deemed to hold the
same in trust for such equitable owner or owners.

107. When any private road, street, or passage on land not Crown
land is a cul-de-sac, the person (if only one) or all the persons collec-
tively (if more than one) who is or are the owner or owners, registered
proprietor or proprietors, of the fee simple of all land abutting upon
such road, street or passage, and who has or have an easement or ease-
ments of right of way thereover shall, where the fee of such road,
street, or passage is in some other person or persons, be (for the pur-
pose of making an application under section 109 of this Act) deemed
solely or collectively (as the case may be) the owner or owners of the
fee simple in equity of such road, street or passage, subject to no other
easements of right of way than those created or reserved in favour of
such last-mentioned owner or owners, and the person or persons in
whom the fee is legally vested be deemed to hold the same in trust for
such equitable owner or owners. And where such fee is already in an
owner or owners, registered proprietor or proprietors, of land so abut-
ting as aforesaid, he or they shall in the discretion of the commissioner
be and be deemed entitled thereto subject to no easements of right of
way other than the easements created or reserved in favour of such
person or persons as is or are owner or owners, registered proprietor or
proprietors, of land abutting as aforesaid, and to have the certificate
of title issued to or already held hy him or them free or freed from all
easements or right of way other than as aforesaid. In this and the next
succeeding section " private road, street or passage " includes any land
described as a road by the owner in fee thereof, in any conveyance in
which he granted an easement of way over such land, notwithstanding
that no such road existed or exists on such land.

108. (1) Where in the case of any private road, street, or passage
which is itself a cul-de-sac and situate on land not Crown land, any
portion of such road, street, or passage is in relation to the remainder
thereof of the nature of a cul-de-sac, such portion shall for the purposes
of this part be deemed to be a cul-de-sac within the meaning of the last
preceding section, whether or not such road, street, or passage has been
dealt with under the provisions of this part, or any corresponding pro-
visions previously in force relating to a cul-de-sac.

(2) Where the owner or registered proprietor of the fee simple
of the terminal portion of a cul-de-sac within the meaning and opera-
tion of the last preceding section is also the owner or registered pro-
prietor of the fee simple of all the land abutting on the closed end

VICTORIA. 421

and sides of that terminal portion, subject only to the then subsisting
easements of right of way thereover, such portion shall of itself apart
from the remainder of the cul-de-sac of which it is a portion be and be
deemed a cul-de-sac within the meaning and operation of the last pre-
ceding section, whether or not the cul-de-sac of which it is a portion
has been previously dealt with under the provisions of this part, or
under any corresponding provisions previously in force relating to a
cul-de-sac; and such owner or registered proprietor shall be entitled to
apply under section 109 to bring such portion under the operation of
this Act, or for a vesting order when such portion is already under the
operation of this Act; and in the discretion of the commissioner shall
be and be deemed entitled thereto subject to no easement of right of
way, and to have the certificate of title issued to or already held by
him free or freed from all easements of right of way then subsisting.

109. Where the fee of such road, street, or passage has not been
brought under the operation of this Act, the person (if only one) or all
the persons (if more than one) by any of the four last preceding sec-
tions declared to be for the purpose therein mentioned solely or
collectively the owner or owners of the fee simple in equity of such
road, street or passage, shall be entitled to apply under section 18 to
bring the land constituting such road, street, or passage under the
operation of this Act, and for the issue of a certificate of title to him
or them, or as he or they shall direct, either free from or subject to
such subsisting easements, and where the land constituting such road,
street, or passage is already under the operation of this Act, such per-
son or persons as aforesaid shall be entitled to apply to the commis-
sioner for a vesting order vesting the fee in him or them, and to be
registered in the register book as the proprietor or proprietors of an
estate in fee simple of the land constituting such road, street or pas-
sage, either free from or subject to such subsisting easements.

110. Upon every such application as aforesaid, whether to bring
such land under the operation of this Act or to procure such vesting
order as aforesaid, the commissioner shall direct notice of the appli-
cation to be advertised once at least in one newspaper published in the
city of Melbourne, or circulating in the neighbourhood of the land, and
to be served on any persons named by him, and shall appoint a time
not less than fourteen days nor more than twelve months from such
notice, or from the advertisement or the first of such advertisements (if
more than one), on or after the expiration of which the registrar may,
unless a caveat is lodged forbidding the same, proceed with the bring-
ing of the land under the operation of this Act, or with the registration
of the applicant or applicants (as the case may be).

111. The registrar shall under such direction as aforesaid cause
notice to be published in such manner as by such direction may be
prescribed, and shall cause a copy of such notice to be posted in a con-
spicuous place in the office of titles, and shall send through the post
office a registered letter marked outside " Office of Titles " containing
a copy of such notice addressed to every person whom the commis-
sioner has directed to be served with notice, and to the persons stated
in the application, or ascertained to be, the owners or occupiers of any
and every portion of the land abutting on any road, street, or passage
included in the application, and to every person appearing on the
register in the office of the registrar-general, or in the register book

422 APPENDIX OF STATUTES.

in the office of titles, or .by the application, to have a subsisting estate
or interest in the land included in such application, or to have any
estate or interest as mortgagee or lessee in any land abutting upon or
having an appurtenant easement over such road, street or passage, also
to the council of the municipality in which such road, street, or passage
is situate. Such letter, in the case of persons appearing upon any such
register as aforesaid, shall be addressed to the address (if any) appear-
ing upon such register, and every such notice so as aforesaid sent by
post shall be accompanied by a skeleton plan showing the position and
dimensions of the road, street, or passage included in or affected by
such application.

112. Any application under section 109 of this Act, where the road,
street, or passage is under the operation of this Act, shall be made in
writing signed by the applicant or applicants, and in addition to the
other facts material to the application shall state the names and pre-
sent addresses of the owners and occupiers of every portion of the said
block, where the case is within section 105, or of every portion of
abutting land where the case is within section 106 or section 107, also
the value of the land comprised in the application. All allegations of
fact in such application shall be verified by statutory declaration. The
duly authorized attorney of any corporation may make or join in such
application for or on behalf of the corporation, and may subscribe the
application in his own name, and make all requisite declarations to the
best of his knowledge, information and belief.

113. Every application made under section 109 shall, subject to
any express provisions of this part, be made, prosecuted, and dealt with,
and fees be chargeable and applied, in manner prescribed by this Act
for applications of a similar nature, and the persons making the same
shall be deemed within and subject to the provisions of this Act affect-
ing such applicants.

114. Any person claiming any estate or interest in or easement
over the land in respect of which any such application is made as
hereinbefore provided may, before the granting thereof, lodge a caveat
with the registrar forbidding the granting of the application; and
every such caveat shall in all other respects be in the same form, sub-
ject to the same provisions, and shall have the same effect with respect
to the application against which it is lodged, as an ordinary caveat
against bringing land under the operation of this Act, or against reg-
istration of any change in proprietorship lodged under the provisions
of this Act.

115. The commissioner, in dealing with any application made
under section 109, may make such requisitions as to title or otherwise
as he thinks fit, and may in his discretion grant such application alto-
gether or in part, and in pursuance thereof direct the land to be
brought under the operation of this Act, or make such vesting order
in the premises as the circumstances of the case require, and the reg-
istrar on being served with such vesting order shall make the entries
directed to be made by section 227 in the case of the vesting orders
therein mentioned, and the making or omission to make such entries
shall be attended by the same results as declared by the said section
in respect of the vesting orders therein mentioned; or the commis-
sioner may in his discretion reject any such application altogether or
in part.

VICTORIA. 423

116. Before granting any application under section 109, the com-
missioner shall determine what amount will in his judgment be an
equitable compensation to the person or persons in whom the fee of
such road, street, or passage is outstanding, for the extinguishment of
his or their estate and interest therein, and for that purpose may re-
quire the applicant or applicants to produce to him such evidence by
statutory declaration or otherwise as he thinks necessary to assist him
in determining such amount, and it shall be lawful for any person
appearing or claiming to be entitled to such compensation to submit to
the commissioner, at any time before the granting of such application,
evidence as to the then value of such estate and interest.

117. When the commissioner has determined the amount of com-
pensation he shall certify to such amount under his hand, and the
granting of the application in respect of which such compensation has
been determined shall be conditional upon the applicant paying the
amount thereof to the person or persons entitled thereto, or if such
person or persons has or have not been ascertained, or cannot be
found, or refuses or refuse to receive or acknowledge such payment, or
if the commissioner so directs, then conditional upon the applicant pay-
ing such amount into the assurance fund; and no title shall issue or
be registered in pursuance of such application until such payment has
been made.

118. When the compensation moneys have been paid into the
assurance fund under the last preceding section, any person thereafter
claiming to be entitled thereto or to any portion thereof may submit
such claim in writing to the commissioner, supporting the same by
statutory declaration, and such other evidence as the commissioner
may require, and if the commissioner admits the claim altogether or
in part and certifies accordingly to the attorney-general, the Governor
in Council may thereupon issue a warrant to the treasurer for payment
of the amount so certified out of the assurance fund: provided never-
theless that no such claim shall lie or be sustained, unless made in
manner aforesaid within the period of six years from the date of the
order granting the application in respect of which such moneys were
paid into the assurance fund.

119. Upon granting any application made under section 109, the
commissioner may grant the same conditioned upon the applicant
contributing to the assurance fund, in addition to the sum to be paid
by way of compensation, such a sum of money as the commissioner
certifies under his hand to be in his judgment a sufficient indemnity,
by reason of the imperfect nature of the evidence of title, or as against
any uncertain or doubtful claim or demand incident to or which may
arise upon the title, or any risk to which the assurance fund may be
exposed by the granting of the application.

120. Any person sustaining loss or damage, in or by the exercise
by the commissioner of any of the powers in this part conferred on
him, shall have all the rights and remedies in respect of such loss or
damage as are secured by section 252 to the persons sustaining loss and
damage within the meaning of that section, subject to the conditions
and restrictions therein and herein expressed or implied, and all dam-
ages and costs so recovered against the registrar in any action respect-
ing such loss or damage may be recovered out of the assurance fund.

424 APPENDIX OF STATUTES.

Part VI. Dealings with land.
Division 1. Transfers.

121. The proprietor of land, or of a lease, mortgage or charge, or
of any estate, right, or interest therein respectively, may transfer the
same by a transfer in one of the forms in the seventh schedule, pro-
vided that where the consideration for a transfer does not consist of
money, the words " the sum of " in the forms of transfer contained in
the seventh schedule shall not be used to describe the consideration,
but the true consideration shall be concisely stated; and a woman
entitled to any right or contingent . right to dower in or out of any
freehold land shall be deemed a proprietor within the meaning hereof.
"Upon the registration of the transfer, the estate and interest of the
proprietor as set forth in such instrument, or which he is entitled or
able to transfer or dispose of under any power, with all rights, powers,
and privileges thereto belonging or appertaining, shall pass to the
transferee; and such transferee shall thereupon become the proprietor
thereof, and whilst continuing such shall be subject to and liable for
all and every the same requirements and liabilities to which he would
have been subject and liable if he had been the former proprietor, or
the original lessee, mortgagee or annuitant.

122. By virtue of every such transfer as is herein mentioned the
right to sue upon any mortgage or other instrument, and to recover any
debt, sum of money, annuity or damages thereunder (notwithstanding
the same is deemed or held to constitute a chose in action), and all
interest in any such debt, sum of money, annuity or damages, shall
be transferred, so as to vest the same at law as well as in equity in the
transferee thereof: provided always that nothing herein contained
shall prevent a court of equity from giving effect to any trusts affecting
such a debt, sum of money, annuity or damages, in case the transferee
as between himself and any other person holds the same as a trustee.

123. The proprietor of land, or of any estate or interest in land,
under the operation of this Act, whether of the nature of real or per-
sonal property, may transfer such land, estate, or interest to his wife;
or if such proprietor be a married woman, it shall be lawful for her to
make such transfer to her husband; or it shall be lawful for such pro-
prietor to make such transfer directly to himself and another person,
or jointly with any other person to himself alone, or to create or exe-
cute any power of appointment or disposition, or to create or limit
estates in remainder or otherwise as legal estates, of or concerning
land the subject thereof without the intervention of any precedent or
particular estate, and also like estates as legal estates without the
employment or intervention of any form of use; and upon the registra-
tion of such transfer the land, estate, or interest shall vest in the trans-
feree solely or jointly (as the case may be), or in the person in whose
favour any such power has been executed, or taking under any such
limitation or otherwise, according to the intent and meaning of such
instrument; and she, he, or they shall become and be deemed the pro-
prietor or proprietors thereof.

124. Every transfer or other instrument shall be deemed of the
same efficacy as if under seal; and when signed by the proprietor, and
registered, shall be as valid and effectual to all intents and purposes for

VICTORIA. 425

conveying, passing, or conferring the estates, interests, or rights ex-
pressed to be thereby transferred, leased, or created respectively, as a
deed duly executed and acknowledged by the same person would have
been under any law heretofore or now in force in Victoria, or as any
other form of document would have been either at law or in equity; and
every instrument acknowledged within Victoria by any woman appear-
ing by the register book to be married (whether a sole proprietor or not),
and certified under the hand of the registrar, or of some assistant regis-
trar, or perpetual commissioner, in the form in the eighth schedule, and
every instrument acknowledged out of Victoria by any woman appear-
ing by the register book to be married (whether a sole proprietor or
not), and certified under the hand of a special commissioner or other
authorized person in the form in the said schedule, shall, when such
instrument has been registered, be as valid and effectual to all intents
and purposes as a deed duly executed and acknowledged, or an instru-
ment duly signed and acknowledged, by her would have been under any
law heretofore or now in force in Victoria, or as any other form of
document would have been either at law or in equity; and such certifi-
cate shall be deemed and received as sufficient evidence of the due
signature and acknowledgment by her of the instrument therein re-
ferred to: provided always that a married woman entitled to her sepa-
rate use, and not restrained from anticipation, or having a power of
appointment, shall for the purposes of this Act be deemed a feme sole.

125 [Am. 1916, s. 7]. If the transfer purports to transfer the whole
or part of the land mentioned in any grant or certificate of title, the
transferor shall deliver up the duplicate grant or certificate; and the
registrar shall after registering the transfer endorse on the grant or.
certificate a memorandum cancelling the same, either wholly or par-
tially, according as the transfer purports to transfer the whole or part
of the land; and the duplicate of any wholly cancelled grant or certifi-
cate shall be retained by him; and the duplicate of any partially can-
celled grant or certificate shall be returned endorsed as aforesaid to
the transferor; and the registrar shall make out to the transferee a
certificate of title to the land mentioned in such transfer, and (when-
ever required by the proprietor of the untran^f erred portion) shall
make out to such proprietor a certificate of title to such portion: pro-
vided always that if the land is leasehold, the lease and duplicate shall
not be cancelled; and the latter document instead of being retained
shall be delivered to the transferee, if the whole of the land affected
by the lease is transferred, otherwise the lease shall be returned to the
person lodging the same: provided further that the registrar may at
his discretion, instead of returning a partially cancelled grant or cer-
tificate to the transferor, require the transferor to take out a new
certificate for the land still comprised in such partially cancelled grant
or certificate.

126 [Am. 1916, s. 8]. If a transfer purports to transfer the whole
of the land mentioned in any grant or certificate of title, the registrar
may, if he think fit, except when a tenancy in common is thereby
created or cancelled, instead of cancelling such grant or certificate as
provided in the last preceding section, enter in the register book and
on the duplicate grant or certificate a memorandum of such transfer,
and deliver the duplicate to the transferee; and every grant or certifi-
cate with such memorandum shall be as effectual for the purpose of

42G APPENDIX OF STATUTES.

evidencing title, and for all other purposes of this Act, as if the old
certificate had been cancelled and a new certificate had been issued to
the transferee in his own name, and such process in lieu of cancella-
tion may be repeated upon every transfer of the whole of the land.

127. In every transfer of land under the operation of this Act
subject to a mortgage or charge, there shall be implied a covenant with
the transferor by the transferee, binding the latter and his heirs,
executors, administrators and transferees that he or they will pay the
interest secured by such mortgage, after the rate and at the times and
in the manner therein specified, or will pay the annuity at the times
and in the manner specified in the charge, and in the case of land sub-
ject to a mortgage will indemnify and keep harmless the transferor and
his representatives from and against the principal sum secured by the
mortgage, and from and against all liability in respect of any of the
covenants therein contained, or by this Act declared to be implied
therein, on the part of the transferor.

128. Whenever any transfer or lease of freehold land contains the
words " Together with a right of carriage-way over

[specifying or describing the road or roads over ichich the easement is
created, and referring to a map endorsed whereon such road or roads is
or are coloured brown] such words shall have the same effect and be
construed as if there had been inserted in such transfer or lease the
words " Together with a right of carriage-way over

129. A memorial of any transfer or lease, creating any easement
over or upon or affecting any land under the operation of this Act,
shall be entered upon the folium of the register book constituted by the
grant or existing certificate of title of such land, in addition to any
other entry concerning such instrument required iby this Act.

130. A transfer of any land, whether freehold or leasehold, held
by registered proprietors being trustees for any society established
under The Friendly Societies Statute 1865, or The Friendly Societies
Act 1877, or the Friendly Societies Act 1890, or under the Friendly
Societies Act 1915, and holding the land as such trustees, signed by the
persons for the time being the trustees of the society, shall be as effect-
ual to all intents and purposes as if the same transfer had been signed
by the registered proprietors for the time being of the land, notwith-
standing anything to the contrary hereof contained in this Act.

Division 2. Leases and sub-leases.

131. The proprietor of any freehold land under the operation of
this Act may lease the same for any term exceeding three years by
signing a lease thereof in the form in the ninth schedule; but no lease
subject to a mortgage or charge shall be valid or binding against the
mortgagee or annuitant, unless he has consented in writing to such
lease prior to the same being registered.

132. In every lease made under the provisions of this Act there
shall be implied the following covenants with the lessor and his trans-
ferees, by the lessee, binding the latter and his executors, adminis-
trators and transferees (that is to say) : —

(i) That he or they will pay the rent reserved by the lease at
the times therein mentioned, and all rates and taxes which
may be payable in respect of the leased property during

VICTORIA. 427

the continuance of the lease, unless the same are or shall
be payable exclusively by the owner of the property under
any Act or statute now or hereafter to be in force relating
to local government,
(ii) That he or they will keep and yield up the leased property
in good and tenantable repair, accidents and damage
from storm and tempest, and reasonable wear and tear,
excepted.

133. In every lease made under this Act there shall also be im-
plied in the lessor and his transferees the following powers (that is to
say): —

(i) That he or they may, with or without surveyors, workmen
or others, once in every year during the term, at a reason-
able time of the day, enter upon the leased premises and
view the state of repair thereof.

(ii) That in case the rent or any part thereof is in arrear for
the space of one month, although no legal or formal de-
mand has been made for payment thereof, or in case of any
breach or non-observance of any of the covenants ex-
pressed in the lease, or by this Act declared to be implied
therein, on the part of the lessee or his transferees, and
such breach or non-observance continuing for the space of
one month, it shall be lawful for the lessor or his trans-
ferees to re-enter upon and take possession of the leased
property.

134. Whenever in any lease made under this Act the lessee
employs any of the forms of words contained in column one of the
tenth schedule, and distinguished by any number therein, such lease
shall be taken to have the same effect and be construed as if he had
inserted therein the form of words contained in column two of the same
schedule, and distinguished by the corresponding number; and every
such form shall be deemed a covenant with the lessor and his trans-
ferees, by the lessee, binding the latter and his executors, administra-
tors and transferees; but it shall not be necessary in any such lease to
insert any such number. There may be introduced into or annexed to
any of the forms in the first column any express exceptions from or
express qualifications thereof respectively; and the like exceptions or
qualifications shall be taken to be made from or in the corresponding
forms in the second column..

135. In every transfer of lease made under the Real Property Act
No. 140, or the Transfer of Land Statute, or the Transfer of Land Act
1890, or this Act, and in every transfer of a grant for years, there
shall be implied a covenant with the transferor by the transferee, bind-
ing him and his executors, administrators and transferees, that he or
they will thenceforth pay the rent by the lease or grant reserved, and
perform and observe all the covenants contained in the lease or grant,
or by the said Acts or Statute or this Act declared to be implied in the
lease, and on the part of the lessee or his transferees to be performed
and observed, and will indemnify and keep harmless the transferor
and his representatives against all actions, suits, claims, and expenses
in respect of the non-payment of such rent, or the breach or non-
observance of such covenants or any of them.

4'3S APPENDIX OF STATUTES.

136. The commissioner, upon proof to his satisfaction of recovery
of possession by a lessor or his transferees (by any legal proceeding, may
direct the registrar to make an entry of the same in the register book;
and the term for which the land was leased shall upon such entry being
made determine, but without prejudice to any action or cause of action
which previously has been commenced or has accrued, in respect of
any breach or non-observance of any covenant expressed in the lease,
or by this Act or by any repealed Act declared to be implied therein.

137. Upon the insolvency of the proprietor of any lease under
this Act subject to one mortgage only, or to several mortgages if owned
by the same person, the registrar, on the application in writing of the
mortgagee or his transferees, accompanied by a statement signed by
the assignee of such insolvent refusing to accept such lease, shall enter
in the register book a note of such refusal; and such entry shall
operate as a foreclosure, and as a transfer of the interest of the insol-
vent in such lease to the mortgagee or his transferees; and if he or they
neglect or refuse to make such application as aforesaid, within
twenty-one days after notice in writing in that behalf from the lessor
or his transferees has been served on the mortgagee or his trans-
ferees, by being given to him or them, or by being sent through the
post-office by a registered letter directed to him or them at his or their
address as stated in the mortgage or transfer thereof, the registrar, on
the application in writing of the lessor or his transferees to be regis-
tered as surrenderee or surrenderees of the lease, accompanied by such a
statement as aforesaid and proof of such neglect or refusal, shall enter
in the register book notice of such statement and of such neglect or
refusal; and such entry shall operate as a surrender of such lease dis-
charged from the mortgage, or several mortgages aforesaid, but with-
out prejudice to any action or cause of action which previously has
been commenced or has accrued, in respect of any breach or non-
observance of any covenant expressed in the lease, or by this Act or by
any repealed Act declared to be implied therein.

138. A lease under this Act may be surrendered and determined,
as well by operation of law, or under any Act now or hereafter to be
in force relating to insolvents and their estates, as by the word " sur-
rendered " with the date being endorsed upon such lease or on the
duplicate thereof (if any), and signed by the lessee or his transferee,
and by the lessor or his transferee, and attested by a witness. The
registrar shall enter in the register book a memorandum recording the
date of such surrender, and shall likewise endorse upon the duplicate
(if any) a memorandum recording the fact of such entry having been
made. Upon such entry in the register book the estate and interest of
the lessee or his transferee shall vest in the lessor, or in the proprietor
for the time being of the reversion and inheritance in the land immedi-
ately expectant on the term; and production of such lease or duplicate
(if any) bearing such endorsement and memorandum shall be sufficient
evidence that such lease has been legally surrendered: provided that
no lease subject to a mortgage or charge shall be so surrendered with-
out the consent in writing of the proprietor thereof.

139. The proprietor of any lease under this Act may, subject to
any provisions in his lease affecting his right so to do, sub-let for a
term not less than three years by signing a sub-lease in the form in the
eleventh schedule; but no sub-lease of any land subject to a mortgage

VICTORIA. 420

or charge upon the lease of the land comprised in the sub-lease shall be
valid or binding against the mortgagee or annuitant of the lease, unless
he has consented in writing to such sub-lease previously to the same
being registered.

140. A sub-lease shall be deemed and taken to be registered when
a memorial thereof as described in section 58 has been endorsed on the
original lease in the register book, and the person named in any regis-
tered sub-lease as the sub-lessee shall be deemed and taken to be the pro-
prietor thereof. The registrar shall endorse on the sub-lease a certifi-
cate of the time at which the memorial was endorsed on the original
lease, and shall authenticate such certificate by signing his name
thereto; and such certificate shall be received in all courts as conclu-
sive evidence that such sub-lease has been duly registered.

141. Notwithstanding the provisions of section 53 a sub-lease shall
not be bound up in the register book, but upon registration one original
shall be lodged and retained in the office of titles; and a book to be
called the " sub-lease register " shall be kept in the office, wherein
entry shall be made of the date, parties, term, and distinguishing
memorial number or symbol of such sub-lease, and such book shall be
open to inspection by the public during the hours and days of business,
on payment of the fee provided in that behalf.

142. The provisions of this Act affecting leases, lessors, and lessees
shall apply to sub-leases, sub-lessors, and sub-lessees, with such modifi-
cations and exceptions as the difference between a lease and sub-lease,
and in the mode of registration thereof, requires; and the entries of
recovery of possession and of surrender, provided for by sections 136
and 138 shall in the case of a sub-lease be made on the sub-lease and
on the lease, and not in the register book; and the memorandum directed
by section 138 to be endorsed on the duplicate shall be written across
the entry of such sub-lease in the sub-lease register; and in case of a
surrender evidenced by a separate document, such document shall be
annexed to the original sub-lease.

If the lease is determined by forfeiture, or operation of law, or by
surrender under any Act relating to insolvents and their estates, such
determination or surrender shall determine the sub-lease.

143. In addition to the covenants specified in section 132 to be
implied in every lease, there shall be implied in every sub-lease the
following covenant with the sub-lessee and his transferees, by the sub-
lessor, binding the latter and his executors, administrators and trans-
ferees (that is to say): —

That he or they will during the term thereby granted pay the
rent reserved by, and perform and observe the covenants
and agreements contained in, the original lease, and on
his or their parts to be paid, performed and observed.

144. In the case of a lease or sub-lease of land under this Act, if
it is proved to the satisfaction of the commissioner that the lessor or
sub-lessor, or his transferee, has re-entered upon the premises in strict
conformity with the provisions for re-entry contained in the lease or
sub-lease, or under the power of the second sub-section of section 133
where the lease or sub-lease is under this Act, or that the lessee or sub-
lessee has abandoned the leased premises and the lease, and that the
lessor or sub-lessor or his transferee has thereupon re-entered upon
and occupied the said premises by himself or tenants undisturbed by the

430 APPENDIX OF STATUTES.

lessee or sub-lessee, the commissioner may direct the registrar to make
an entry of such re-entry in the register book, or in the sub-lease reg-
ister (as the case may be), and the term for which the land was leased
or sub-leased shall upon such entry being made determine, and may
be removed as an incumbrance from a certificate, but without preju-
dice to any action or cause of action which previously has been com-
menced or has accrued, in respect of any breach or non-observance
of any covenant expressed in the lease or sub-lease, or by this Act, or
by any repealed Act, declared to be implied therein.

Conv. Act 1915, s. 14. The provisions of [Part III. of the Convey-
ancing Act 1915 (ss. 14-26), "Leases"] shall apply to leases and sub-
leases under the Transfer of Land Act 1915, notwithstanding anything
in that Act contained.

Division 3. Mortgages and Annuities.

145. The proprietor of any land under the operation of this Act
may mortgage the same by signing a mortgage thereof in the form in
the twelfth schedule, and may charge the same with the payment of
an annuity by signing a charge thereof in the form in the thirteenth
schedule.

146. A mortgage or a charge under this Act shall, when registered
as hereinbefore provided, have effect as a security, but shall not operate
as a transfer of the land thereby mortgaged or charged; and in case
default is made in payment of the principal sum, interest, or annuity
secured, or any part thereof respectively, or in the performance or
observance of any covenant expressed in any mortgage or charge, or
hereby declared to be implied in any mortgage, and such default is
continued for one month, or for such other period of time as is therein
for that purpose expressly fixed, the mortgagee or annuitant, or his
transferees, may serve on the mortgagor or grantor, or his transferees,
notice in writing to pay the money owing on such mortgage or charge,
or to perform and observe the aforesaid covenants (as the case may be),
by giving such notice to him or them, or by leaving the same on the
mortgaged or charged land, or by sending the same through the post
office by a registered letter, directed to the then proprietor of the land
at his address appearing in the register book.

147. Where money secured by a mortgage under this Act is made
payable on demand, a demand in writing pursuant to the mortgage
shall be equivalent to the notice in writing to pay the money owing
provided for by the last preceding section of this Act; and no other
notice shall be required, to create the default in payment mentioned
in the next succeeding section.

148 [Am. 1916, s. 9]. If such default in payment or in performance
or observance of covenants continues for one month after the service of
such notice or for such other period as in such mortgage or charge is
for that purpose fixed, the mortgagee or annuitant or his transferees
may sell or concur with any other person in selling the mortgaged or
charged land, or any part thereof, either subject to prior mortgages or
charges or not, and either together or in lots, by public auction or by
private contract, and either at one or several times, subject to such
terms and conditions as the mortgagee or annuitant thinks fit, with
power to vary any contract for sale, and to buy in at any auction, or

VICTORIA. 431

to vary or rescind any contract for sale, and to resell without being
answerable for any loss occasioned thereby, with power to make such
roads, streets and passages, and grant such easements of right of way
or drainage over the same, as the circumstances of the case require
and the mortgagee or annuitant thinks fit; and may make and sign
such transfers, and do such acts and things as are necessary for effectu-
ating any such sale; and no purchaser shall be bound to see or inquire
whether such default as aforesaid has been made or has happened, or
has continued, or whether such notice as aforesaid has been served, or
otherwise into the propriety or regularity of any such sale. Where a
transfer is made in professed exercise of the power of sale conferred
by this Act, the title of the transferee shall not be impeachable on the
ground that no cause had arisen to authorize the sale, or that due notice
was not given, or that the power was otherwise improperly or irregu-
larly exercised, but any person damnified by an unauthorized or im-
proper or irregular exercise of the power shall have his remedy in
damages against the person exercising the power. An instrument of
transfer by a mortgagee or annuitant in exercise of the power of sale
conferred by this Act, made in the form prescribed in the seventh
schedule to this Act. may be accepted by the registrar as sufficient evi-
dence that the power has been duly exercised and he shall not be bound
or required to call for proof thereof.

149. The purchase money arising from the sale of the mortgaged
or charged land shall be applied as follows: —

If the sale is by the mortgagee or his transferees —

First, in payment of the expenses of and incidental to such
sale, and consequent on such default: secondly, in pay-
ment of the moneys which are due or owing on the mort-
gage: thirdly, in payment of subsequent mortgages, and
of any moneys which are due or owing in respect of any
subsequent charges, in the order of their respective priori-
ties: and the surplus (if any) shall be paid to the mort-
gagor: provided always that if the sale is made by a
mortgagee or his transferees, and there is a subsequent
charge, the purchase moneys, after there have been made
thereout all proper prior payments, shall be deposited by
him or them in the manner and names and for purposes
corresponding with those after mentioned.
If the sale be by the annuitant or his transferees —

First, in payment of the expenses of and incidental to such
sale, and consequent on such default; then in payment of
the moneys which are due or owing to the annuitant or his
transferees; and the residue shall be deposited by him or
them at interest in the State Savings Bank, or in some
other bank in Melbourne, in the joint names of the annui-
tant or his transferees and of the registrar, to satisfy the
accruing payments of the charge, and subject thereto for
the benefit of the parties who are or become entitled to
the residue of the deposited money.
150. Upon the registration of any transfer signed by a mortgagee
or annuitant, or his transferees, for the purpose of such sale as afore-
said, the estate and interest of the mortgagor or grantor in the land
therein described at the time of the registration of the mortgage or

432 APPENDIX OF 'STATUTES.

charge, or which he was then entitled or able to transfer or dispose of
under any power of appointment or disposition, or under any power
herein contained, shall pass to and vest in the purchaser, freed and
discharged from all liability on account of such mortgage or charge,
and of any mortgage, charge, or incumbrance registered subsequent
thereto, excepting a lease or grant of easement to which lease or grant
the mortgagee or annuitant, or his transferees, has consented in writ-
ing; and the purchaser, when registered as the proprietor, shall be
deemed a transferee of such land, and shall be entitled to receive a
certificate of title to the same.

151. The mortgagee or annuitant, or his transferees, upon default
in payment of the principal sum or interest or annuity, or any part
thereof respectively, at the time mentioned in the mortgage or charge,
may enter into possession of the mortgaged or charged land by receiv-
ing the rents and profits thereof, and may distrain upon the occupier or
tenant of the land under the power to distrain hereinafter contained,
or may bring an action of ejectment to recover the land, either before
or after entering into the receipt of the rents and profits thereof or
making any distress, and either before or after any sale of such land is
effected under the power of sale aforesaid, in the same manner in which
he or they might have brought such action if the mortgage money or
annuity had been secured to him or them by an assurance of the legal
estate in the land mortgaged or charged; and any mortgagee or his
transferees shall be entitled to foreclose the right of the mortgagor or
his transferees to redeem the mortgaged land in manner hereinafter
provided.

152. Besides his other remedies every first mortgagee or annuitant
for the time being, and every transferee of a first mortgage or charge
for the time being, shall be entitled, as often as it happens that the
interest or annuity, or any part thereof respectively, is in arrear for
twenty-one days, and after seven days have elapsed from an application
to the occupier or tenant for the payment thereof, to enter upon the
mortgaged or charged land and distrain the poods and chattels of such
occupier or tenant for the arrears of the said interest or annuity, and
the distress and distresses then and there found to dispose of in like
manner as landlords may do in respect of distresses for rent reserved
upon common demises, and out of the sale moneys to retain the moneys
which are so in arrear, and all costs and expenses occasioned by such
distress and sale: provided that no occupier or tenant shall be liable
to pay to any such mortgagee or annuitant or transferee a greater
sum than the amount of rent which at the time of making such appli-
cation for payment is due from such occupier or tenant; and any
amount so paid, as well as any amount which is paid by him to any
such mortgagee or annuitant or transferee during the time he may be
in the receipt of the rents and profits, shall be held to be pro tanto
satisfaction of the rent.

Conv. Act 1915, s. 35. (1) A mortgagee, where the mortgage ... is
under the Transfer of Land Act 1915, shall by virtue of this Act have
... a power, when the mortgage money has become due, to appoint a
receiver of the income of the mortgaged property, or of any part
thereof.

153. In every mortgage made under the provisions of this Act
there shall be implied covenants with the mortgagee and his trans-

VICTORIA. 433

ferees, by the mortgagor, binding the latter and his heirs, executors,
administrators and transferees, that he or they will pay the principal
money therein mentioned on the day therein appointed, and will so
long as the principal money or any part thereof remains unpaid pay
interest thereon, or on so much thereof as for the time being remains
unpaid, at the rate and on the days and in manner therein specified;
also that he or they will repair, and keep in repair all buildings or
other improvements which have been or are erected or made upon the
mortgaged land; and that the mortgagee and his transferees may, at all
reasonable times until such mortgage is redeemed, enter into and upon
such land, with or without surveyors or others, to view and inspect
the state of repair of such buildings or improvements.

154. A mortgagee of or annuitant upon land leased under this
Act," and his transferees, after entering into possession of the land or
the receipt of the rents and profits thereof shall, during such posses-
sion or receipt, and to the extent of any benefit, rents, and profits which
are received, become and be subject and liable to the lessor of the said
land, or his transferees, or the person for the time being entitled to the
reversion and inheritance expectant on the term of the lease, for the
payment of the rent reserved by the lease, and for the performance and
observance of the covenants therein contained, or by this Act or by any
repealed Act declared to be implied therein, on the part of the lessee or
his transferees.

155. Whenever in any mortgage made under this Act the mort-
gagor employs the form of words contained in column one of the four-
teenth schedule, such mortgage shall be taken to have the same effect
and be construed as if he had inserted therein the form of words con-
tained in column two of the same schedule; and every such form shall
be deemed a covenant with the mortgagee and his transferees, by the
mortgagor, binding the latter and his heirs, executors, administrators
and transferees. There may be introduced into or annexed to the form
in the first column any express exception from, or express qualification
thereof; and the like exception or qualification shall be taken to be
made from or in the form in the second column.

156. In addition to and concurrently with the rights and powers
conferred on a first mortgagee, and on a transferee of a first mort-
gage, by this Act, every present and future first mortgagee for the time
being of land under this Act, and every transferee of a first mortgage
for the time being upon any such land, shall, until a discharge from the
whole of the money secured, or until a transfer upon a sale or an order
for foreclosure (as the case may be) has been registered, have the
same rights and remedies at law and in equity (including proceedings
before justices of the peace) as he would have had or been entitled to if
the legal estate in the land or term mortgaged had been actually vested
in him, with a right in the mortgagor of quiet enjoyment of the mort-
gaged land until a default in payment of the principal and interest
money secured, or some part thereof respectively, or until a breach in
the performance or observance of some covenant expressed in the mort-
gage, or by the provisions of this Act, or of any repealed Act, to.be im-
plied therein. Nothing contained in this section shall affect or preju-
dice the rights or liabilities of any such mortgagee or transferee after

R.T.L. — 28

434 APPENDIX OF STATUTES.

an order for foreclosure has been entered in the register book; or shall,
until the entry of such an order, render a first mortgagee of land
leased under this Act, or the transferee of his mortgage, liable to or for
the payment of the rent reserved by the lease, or for Che performance
or observance of the covenants expressed or to be implied therein.

157. A mortgagor or his transferee shall not, either before or
after such default or breach as aforesaid, commence in his own name
any action at law for or in respect of any cause of action for which a
first mortgagee, or his transferee, may sue under the last preceding
section, without obtaining the previous consent in writing of such
mortgagee or transferee, or his agent, to the commencement of such
action, after giving which consent such mortgagee or transferee shall
not be entitled to bring in his name any action at law in respect of the
cause of action specified in such consent: provided however that' if a
mortgagor or his transferee brings any such action in his own name,
and the defendant proves the existence of a mortgage, the plaintiff shall
not be nonsuited, nor shall there be a verdict against him, if he proves
in reply that the action was brought with the written consent of the
mortgagee, or of the transferee of his mortgage, or his agent.

158. Any sum of money which becomes payable to the mortgagor
or his transferee, under any decree or order in any action by him
in the Supreme Court for or on account of any waste or damage of
or to the land mortgaged, shall be paid to the first mortgagee or his
transferee in reduction or satisfaction of the money secured; and if he
is not willing to receive the same, or thereby is fully paid off, the
same or the balance shall be paid to any subsequent mortgagee or his
transferee, according to priority, in like reduction or satisfaction; and
if no mortgagee or his transferee is willing or is entitled to receive the
same, then to the mortgagor or his transferee for his own benefit.

159. Any mortgagee or his transferee may, either before or after
judgment or execution obtained in any action at law brought by the
mortgagor or his transferee, apply to a judge for a summons in such
action, calling on the plaintiff and defendant or their solicitors or
agents to attend before a judge and show cause why any sum beyond
twenty-five pounds, which has been or is recovered for damages in such
action, or which becomes payable on the settlement thereof, should
not be paid to such persons and for such purposes as are hereinbefore'
mentioned, with respect to money payable under any decree or order
in any suit in equity by the mortgagor or his transferee; and the
judge hearing the summons shall determine the matter thereof in a
summary manner, and shall make such order therein as to costs and
all other matters as appears to be just and reasonable; and the deci-
sion of such judge shall be final and conclusive against all parties:
provided always that every order made in pursuance of this section
shall be liable to be rescinded or altered by the full Court in like
manner as other orders made by a single judge. The sheriff or other
officer who has the execution of any writ of fieri facias issued in such
action shall on being served with a copy of such order obey the same.

160. Any money received by a first mortgagee or his transferee,
under any proceeding commenced in his name at law or in equity, shall
after payment thereout of his costs be applied in reduction or satisfac-
tion of the moneys secured, and subject thereto shall be disposed of
according to the equities of the parties interested.

VICTORIA. 435

161. Whenever default has been made in payment of the prin-
cipal or interest moneys secured by a mortgage, and such default is
continued for six months after the time for payment mentioned in
the mortgage, the mortgagee or his transferee may make application
in writing to the commissioner for an order for foreclosure; and such
application shall state that such default has been made, and has con-
tinued for the period aforesaid, and that the land mortgaged has been
offered for sale at public auction by a licensed auctioneer, after notice
of sale served as hereinbefore provided, and that the amount of the
highest bidding at such sale was not sufficient to satisfy the moneys
secured by such mortgage, together with the expenses occasioned by
such sale, and that notice in writing of the intention of the mortgagee
or his transferee to make application for foreclosure had been served
on the' mortgagor, or his transferees, by being given to him or them, or
by being left on the mortgaged land, or by the same being sent through
the post office by a registered letter, directed to him or them at his
or their address appearing in the register book, and also that a like
notice of such intention has been served on every person appearing
by the register book to have any right, estate, or interest to or in the
mortgaged land subsequently to such mortgage, by being given to him,
or sent through the post office by a registered letter, directed to him at
his address appearing in the register book. Such application shall be
accompanied by a certificate of the auctioneer by whom such land was
put up for sale, and such other proof of the matters stated by the appli-
cant as the commissioner may require; and the statements made in
such application shall be verified by statutory declaration.

162. Upon such application the commissioner may direct the
registrar to cause notice to be published once in each of three succes-
sive weeks in at least one newspaper published in the city of Melbourne
offering such land for private sale, and shall appoint a time not less
than one month from the date of the first of such advertisements, upon
or after which the registrar shall issue to such applicant an order for
foreclosure, unless in the interval a sufficient amount has been obtained
by the sale of such land to satisfy the principal and interest moneys
secured, and all expenses occasioned by such sale and proceedings; and
every such order for foreclosure under the hand of the registrar, when
entered in the register 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 of any person claiming through or under him subsequently to the
mortgage; and such mortgagee or his transferee shall upon such entry
being made, be deemed a transferee of the mortgaged land, and become
the proprietor thereof, and be entitled to receive a certificate of title to
the same.

Conv. Act 1915, s. 32. (1) On a decree, judgment, or order absolute
for foreclosure, the mortgagee shall be deemed to have taken the pro-
perty mentioned in such decree, judgment, or order in full satisfaction
of the mortgage debt, and his right or equity to bring any action, or
take other proceedings for the recovery of the mortgage money from
the debtor, surety, or other person shall be extinguished, and the right
or equity of the mortgagor to redeem the said property shall also be
extinguished.

436 APPENDIX OF STATUTES.

(2) In the case of mortgages of land under the Transfer of Land
Act 1915, " order absolute " includes an order for foreclosure under the
hand of the registrar, when entered in the register book.

(3) Nothing in this section shall be deemed to disentitle the
mortgagee to obtain foreclosure of any other property over which he
holds security by way of mortgage for the said money or part thereof,
or to enforce all or any rights, powers, and remedies expressed or im-
plied in such mortgage, except the right to sue the mortgagor, or any
surety for the mortgagor, either for the mortgage money or on any
bill or note given as security for the mortgage money, as if this section
had not been made law.

(5) This section shall have effect notwithstanding any stipulation
to the contrary.

163. Upon production of a memorandum signed by the mortgagee
or annuitant, or his transferees, and attested by a witness, discharging
the land from the whole or part of the moneys or annuity secured, or
discharging any part of the land from the whole of such moneys or
annuity, the registrar shall make an entry upon the original grant or
certificate, and upon the original mortgage or charge and upon the
duplicate thereof (if any), stating the time at which it was made, that
such i lortgage or charge is discharged wholly or partially, or that part
of the land is discharged as aforesaid (as the case may be) ; and upon
such entry being made the land, or the portion of land described in
such memorandum, shall cease to be subject to or liable for such
moneys or annuity, or for the part thereof mentioned in such
entry as discharged; and the registrar shall make a corresponding
entry on the duplicate grant or certificate of title when produced to him
for that purpose.

1.64. Upon proof to the satisfaction of the commissioner of the
death of the annuitant or of the occurrence of the event or circum-
stance upon which in accordance with the provisions of any charge the
annuity thereby secured ceases to be payable, and upon proof to the like
satisfaction that all arrears of the annuity and all costs occasioned by
non-payment thereof have been paid or satisfied, he shall direct the
registrar to make an entry in the register book that such annuity is
satisfied; and upon such entry being made the land shall cease to be
subject to or liable for such annuity; and the registrar shall make the
like entry on the duplicate as is mentioned in the last preceding section.

165. In case a mortgagee or his transferee is absent from Victoria,
and there is no person authorized to give a receipt for the mortgage
money at or after the date appointed for payment thereof, it shall be
lawful for the treasurer of Victoria to receive such mortgage money,
with all arrears of interest 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 registrar shall, upon
production of the receipt of the treasurer for the amount of the mort-
gage money and interest, make an entry in the registry book discharg-
ing the land from such mortgage, stating the time at which such
entry was made; and such entry shall be a valid discharge from such
mortgage; and the registrar shall make a corresponding entry on the
duplicate grant or certificate of title when produced to him for that
purpose. The treasurer shall from time to time invest all mortgage

VICTORIA. 437

moneys and interest which are received by him under this section,
together with all dividends and interest which accrue thereon, in
Victorian government securities for the benefit of the persons who are
for the time being entitled thereto; but nothing herein contained shall
render any treasurer in any manner liable for not investing the same
respectively. The registrar shall address to the treasurer requisitions,
countersigned by the commissioner, to pay to such persons the moneys
to which they are entitled hereunder; and such moneys shall be issued
in like manner as moneys are issued from the trust fund.

166. When any instrument subsequent to a first mortgage is made
by the proprietor of any land, and such proprietor, or the person entitled
to the benefit of such subsequent instrument, desires the registration
of such subsequent instrument, the first mortgagee, if he holds the
duplicate grant or certificate of title which comprises the land in such
subsequent instrument, shall upon being requested so to do by the pro-
prietor of the land, or the person entitled to the benefit of such subse-
quent instrument, but at the cost of the person making such request,
produce such duplicate grant or certificate of title to the registrar, so
that such subsequent instrument may be registered.

167. When any land has been brought under this Act subject to
any mortgage, and the mortgagee, or any person claiming under him,
applies for a certificate of title to the land foreclosed or purchased, the
mortgage shall be deemed to have conferred upon the mortgagee, or
the purchaser under the power of sale contained in the mortgage, the
right to be registered as proprietor at law as well as in equity of the
same estate in the land as that for which the mortgagor was registered,
and the only enquiry into title shall be as to the validity of the fore-
closure or sale and of any subsequent transfers or transmissions of title
to the applicant, and no caveat, which might have been or which was
lodged against the original application, shall be lodged or renewed in
respect of the same estate or interest against the application of the
mortgagee or any person claiming under him.

168. Where land has been brought under this Act subject to an
outstanding legal mortgage under the general law, shown as an in-
cumbrance on the certificate of title which brought the land under
the Act, if default has been made in payment of the principal or
interest moneys secured by sue* mortgage, and such default has con-
tinued for six months after the time for payment mentioned in such
mortgage, it shall be lawful for the mortgagee, where there is but one
such mortgage, or for the first mortgagee, if more than one such
mortgagee, his executors, administrators and assigns, or other the per-
son who would be entitled to bring an action for foreclosure under
the general law, to make application in writing to the commissioner
for an order for foreclosure (which order he is hereby empowered to
make concurrently with the Supreme Court), provided that the right
to foreclosure has not theretofore been determined in any contested
proceeding in any court of competent jurisdiction in which such right
to foreclosure was in question, and the only enquiry into title shall
be as to whether the applicant's estate and interest under or in respect
of the said mortgage are such as would have entitled him. had he
elected so to do, to bring an action for foreclosure under the general
law by reason of such default as aforesaid; and unless the commis-
sioner so directs such enquiry shall not be extended to time or events

438 APPENDIX OF STATUTES.

prior to the date of the certificate of title which brought the land under
the Act, and on which such mortgage was first shown as an incum-
brance.

169. Such application shall state that such default has been made
after due notice to pay, given and served in manner provided by the
said mortgage, and has continued for the aforesaid period of six
months; that the land comprised in and remaining subject to the mort-
gage has been offered for sale at public auction by a licensed auctioneer,
after notice of intention to sell given and served in manner provided by
the mortgage; that the amount of the highest bidding at such at-
tempted sale was not sufficient to satisfy the moneys secured by such
mortgage, together with the expenses occasioned by such attempted
sale; and that after such attempted sale notice in writing of the inten-
tion of the applicant to make such application for foreclosure had been
served on the mortgagor, or his transferees, and on every other person
appearing by the register book of the registrar of titles, and on every
person appearing by the register book of the registrar-general respec-
tively, to have any right, estate, or interest to or in the mortgaged
land, or in the mortgage security registered in such register books
respectively, subsequent to the date of the certificate of title by which
such land was brought under the Act; and that such notice has been
served, by being given to such person, or sent through the post office
by registered letter, directed to him at his address appearing in the
register book of the registrar of titles or the register book of the
registrar-general (as the case may be); such application shall be ac-
companied by a certificate of the auctioneer by whom such land was
put up for sale; and the statements made in such application shall be
verified by statutory declaration. If the applicant's title is a derivative
title, the applicant must state shortly in a schedule to the application
the assignments, devolutions, or transmissions under which he claims;
and if the applicant has entered into possession under the mortgage,
the application shall state that fact and the date of such entry.

170. The registrar shall refer any application made as aforesaid
to an examiner, who shall report thereon to the commissioner, who
in dealing with such application may make such requisitions as to
title or otherwise as he thinks fit, and may in his discretion grant
such application altogether or in part; or may, notwithstanding any
direction previously given by him as to such application, reject the
same altogether or in part, if the applicant fails to comply with any
such requisition to the satisfaction of the commissioner within such
time as to the commissioner seems reasonable.

171. Upon such application the commissioner may direct the
registrar to cause notice to be published once in each of three succes-
sive weeks, with an interval of not less than five days between each
publication, in at least one newspaper published in the city of Mel-
bourne, offering such land for private sale; and shall appoint a time
not less than one month from the date of the first of such advertise-
ments, upon or after which the registrar shall issue to such applicant
an order for foreclosure, unless in the interval a sufficient amount has
been obtained by the sale of such land to satisfy the principal and in-
terest moneys secured, and all expenses occasioned by such sale and
proceedings; and every such order for foreclosure under the hand of
the registrar, when entered in the register book, shall have the effect

VICTORIA. 439

of vesting in the applicant or his executors, administrators or assigns,
the land mentioned in such order free from all right and equity of re-
demption on the part of the mortgagor, or of any person claiming
through or under him subsequently to the mortgage; and such appli-
cant, executor, administrator, or assign shall, upon such entry being
made, be deemed a transferee of the mortgaged land and become the
proprietor thereof, and be entitled to receive a certificate of title to the
same.

172. Any person claiming any estate or interest in the land, or in
or under the mortgage security, in respect of which any such applica-
tion is made as hereinbefore provided, may before the granting thereof
lodge a caveat with the registrar forbidding the granting of the appli-
cation; and every such caveat shall in all other respects be in the same
form, shall be subject to the same provisions, and shall have the same
effect with respect to the application against which it is lodged, as an
ordinary caveat against bringing land under the operation of this
Act.

173. Upon granting such application, the commissioner may grant
the same conditioned upon the applicant contributing to the assurance
fund such a sum of money as the commissioner certifies under his hand
to be in his judgment a sufficient indemnity, by reason of the imperfect
nature of the evidence of title adduced in support of the application;
or as against any uncertain or doubtful claim or demand incident to,
or which may arise upon, the title of the applicant; or any risk to
which the assurance fund may be exposed by the granting of the appli-
cation; and the applicant shall be chargeable with such fees in respect
of such application and order as are made chargeable under this Act.

174. Neither the right to make, nor the making of, such applica-
tion shall deprive the applicant of the right to bring an action for
foreclosure under the general law, but he shall not be at liberty to
pursue his remedy by such application and his remedy by action for
foreclosure concurrently.

Division 4- Miscellaneous.

175. A corporation, for the purpose of transferring or otherwise
dealing with any land under the operation of this Act, or any lease,
mortgage or charge, may, in lieu of signing the instrument for such
purpose required, affix thereto its common seal. The seal of the attor-
ney of any corporation whose chief or head office of business is out of
Victoria, whether such attorney has been already constituted, or here-
after is constituted, by a power of attorney under a seal purporting to
be the common seal of the corporation giving the power, shall be
deemed to be the common seal of such corporation within the meaning
and for the purposes of this section.

176. Every covenant and power to be implied in any instrument
by virtue of this Act may be negatived or modified by express decla-
ration in the instrument, or endorsed thereon; and in the declaration in
any action for a breach of any such covenant it shall be lawful to allege
that the party against whom, or against whose real or personal repre-
sentatives, such action is brought did so covenant, precisely in the
same manner as if such covenant had been expressed in words at length
in such instrument, any law or practice to the contrary notwithstand-

140 APPENDIX OF STATUTES.

ing; and every such implied covenant shall have the same force and
effect as if it had been set out at length in such instrument, and where
in any instrument there shall be more covenantors than one, such
covenants as are by this Act declared to be implied in instruments of
the like nature shall be construed to be several, and not to bind the
parties jointly.

177 [Am. 1916, s. 10 J. Upon the receipt of the probate of any will,
or of any letters of administration, or of a rule to administer granted
to the curator, or of any rule or order whereby it appears that any
person has been appointed or constituted the executor or administrator
of any deceased person, or upon the receipt of an office copy of any such
probate, letters of administration, rule to administer, rule or order,
and upon the notification in the Government Gazette of the appoint-
ment of any succeeding curator, the registrar shall, on an application
in writing of the executor, administrator, or curator (as the case may
be) to be registered as proprietor in respect of any leasehold land
(therein described) brought under the operation of this Act, or of any
lease, mortgage, or charge therein described, enter in the register book,
and on the duplicate instrument (if any) when produced for any pur-
pose, a memorandum notifying the appointment of such executor,
administrator or curator, and the day of the death of the proprietor
when the same can be ascertained, and upon such entry being made
such executor, administrator, or curator shall become the transferee
and be deemed to be the proprietor of such land, lease, mortgage
or charge, or of such part thereof as then remains unadministered, and
shall hold the same subject to the equities upon which the deceased
held the same, but for the purpose of any dealings therewith under the
provisions of this Act such executor, administrator, or curator shall be
deemed to be the absolute proprietor thereof. The title of every execu-
tor, administrator, or curator becoming a transferee under this section
shall, upon such entry being made, relate back to and be deemed to
have arisen upon the death of the proprietor of any land, lease, mort-
gage or charge, as if there had been no interval of time between such
death and entry. If in any case probate or administration is granted to
more persons than one, all of them for the time being shall join and
concur in every instrument, surrender, or discharge relating to the
land, lease, mortgage or charge. No contribution to the assurance
fund under this AcJ shall be payable on the registration of such execu-
tor, administrator or curator.

178 [Am. 1916, s. 11]. No execution registered prior to or after the
commencement of this Act shall bind, charge, or affect any land, or any
lease, mortgage or charge; but the registrar, on being served with a
copy of any writ of fieri facias issued out of the Supreme Court, or of
any decree or order of the Supreme Court or of a county court in its
equitable jurisdiction, accompanied by a statement signed by any party
interested, or his attorney, solicitor or agent, specifying the land, lease,
mortgage, or charge sought to be affected thereby, shall, after marking
upon such copy the time of such service, enter the same in the register
book; and after any land, lease, mortgage, or charge so specified has
been sold under any such writ, decree or order, the registrar shall, on
receiving a transfer thereof in such one of the forms in the fifteenth
schedule as the case requires (which transfer shall have the same effect
as if made by the proprietor), enter such transfer in the register book;

VICTORIA. 441

and on such' entry being made, the purchaser shall become the trans-
feree and be deemed the proprietor of such land, lease, mortgage or
charge: provided that until such service as aforesaid no sale or transfer
under any such writ shall be valid as against a purchaser for valuable
consideration, notwithstanding such writ was actually lodged for execu-
tion at the time of the purchase, and notwithstanding the purchaser
had actual or constructive notice of the lodgment of such writ. Upon
production to the commissioner of sufficient evidence of the satisfac-
tion of any writ, a copy whereof has been served as aforesaid, he shall
direct an entry to be made in the registry book of a memorandum to
that effect; and on such entry such writ shall be deemed to be satisfied.
Every such writ shall cease to bind, charge, or affect any land, lease,
mortgage, or charge specified as aforesaid, unless a transfer upon a
sale under such writ is lodged for entry upon the register within three
months from the day on which the copy was served. On a transfer
from the sheriff being presented for registration, it shall not be regis-
tered, nor deemed produced for registration within the meaning of sec-
tion 53, unless previously and within three months preceding the trans-
fer being so presented a copy of the writ of fi. fa. in pursuance of
which such transfer purports to have been made has been duly served
upon the registrar, for entry by him in the register book in accordance
with the provisions of this section. [This section 1 shall extend and
apply to writs of fieri facias issued out of the High Court of Australia,
and to judgments and orders of that court, and to officers thereof; and
the several forms of transfer prescribed by [this] section, and con-
tained in the fifteenth schedule to [this] Act, may be modified or
amended accordingly.

179. Except in the case of fraud, no person contracting or dealing
with, or taking or proposing to take a transfer from, the proprietor of
any registered land, lease, mortgage or charge shall be required or in
any manner concerned to enquire or ascertain'the circumstances under
or the consideration for which such proprietor, or any previous pro-
prietor thereof, was registered, or to see to the application of any pur-
chase or consideration money, or shall be affected by notice, actual or
constructive, of any trust or unregistered interest, any rule of law or
equity to the contrary notwithstanding; and the knowledge that any
such trust or unregistered interest is in existence shall not of itself be
imputed as fraud.

180. A transfer or mortgage in the ordinary form by a tenant in
tail under this Act, having power to create an estate in fee simple, shall
create such estate in favour of a transferee, mortgagee, or transferee
under the power of sale in the mortgage, and a transferee from a tenant
in tail, or under a mortgage from a tenant in tail or a mortgagee after
foreclosure, shall be entitled to be registered and receive a certificate
for the larger estate which the tenant in tail is empowered to confer,
but a mortgage under this Act if discharged shall not bar the entail.

181. Nothing contained in this Act shall enable any lessee of land
under any grant to transfer or otherwise deal with such land contrary
to the provisions of The Amending Land Act 1865, or any subsequent
Land Act affecting such grant.

[182: V. 1890, s. 143, Aust. Torr. Syst. 542.]

442 APPENDIX OF STATUTES.

Part VII. Caveats.

183. Any beneficiary, or other person claiming any estate or inter-
est in land under the operation of this Act, or in any lease, mortgage,
or charge under any unregistered instrument, or by devolution in law,
or otherwise, may lodge a caveat with the registrar in the form in
the sixteenth schedule, or as near thereto as circumstances permit, for-
bidding the registration of any person as transferee or proprietor of,
and of any instrument affecting, such estate or interest, either abso-
lutely, or until after notice of the intended registration or dealing is
given to the caveator, or unless such instrument is expressed to be
subject to the claim of the caveator, as is required in such caveat, or
unless the caveator consents in writing thereto. Every such caveat
shall state the name and addition of the person by whom, or on whose
behalf, the same is lodged, and (except in case of a caveat lodged by
order of the Supreme Court or by the registrar pursuant to the direc-
tion of the commissioner as hereinafter provided) shall be signed by
the caveator, or by his agent. The person lodging such caveat shall, if
required, support the same by a statutory declaration, stating the
nature of the title under which the claim is made, and may withdraw
any such caveat. No such caveat shall be received unless some address
or place within the present limits of the city of Melbourne is appointed
therein, as the place at which notices and proceedings relating to such
caveat may be served. A caveator may however give an additional
address out of the said city at the foot of such caveat, in which case a
registered letter shall be sent through the post office to such address, on
the same day as that on which any notice relating to such caveat is
served in Melbourne. Every notice relating to such caveat, and any
proceedings in respect thereof, if served at the address or place ap-
pointed as aforesaid, shall be deemed to be duly served.

184 [Am. 1916, s. 12J. Upon the receipt of such caveat the regis-
trar shall notify the same to the person against whose application to
be registered as proprietor or (as the case may be) to the proprietor
against whose title to deal with the estate or interest such caveat has
been lodged; and such applicant or proprietor, or any person claiming
under any transfer or other instrument signed by the proprietor, may
if he thinks fit summon the caveator to attend before the full Court of
the Supreme Court, to show cause why such caveat should not be re-
moved; and such court may, upon proof that such caveator has been
summoned, make such order in the premises, either ex parte or other-
wise and as to costs, as to such court seems fit. In cases of urgency
such summons may be made returnable before a judge of the Supreme
Court in chambers, and if such judge considers that the summons
should be immediately or promptly heard he may, subject to appeal to
the full Court, hear and determine the same and exercise the powers
hereinbefore conferred on the full Court, or he may without any appli-
cation by either party refer such summons to the full Court, and may
in any case make such order as to costs as he thinks fit. Except in the
case of a caveat lodged by or on behalf of a beneficiary claiming under
any will or settlement, or by the registrar pursuant to the direction of
the commissioner, every caveat lodged against a proprietor shall be
deemed to have lapsed as to the land affected by the transfer or other
dealing, or registration abstract, immediately hereinafter referred to,

VICTORIA. 443

upon the expiration of fourteen days after notice given to the caveator
that such proprietor has applied for the registration of a transfer or
other dealing, or the issue of a registration abstract, unless in the
meantime such application has been withdrawn, A caveat shall not be
renewed by or on behalf of the same person, in respect of the same
estate or interest; but if before the expiration of the said period of
fourteen days, or such further period as is specified in any order made
under this section, the caveator or his agent appears before a judge,
and gives such undertaking or security, or lodges such sum in court, as
such judge considers sufficient to indemnify every person against any
damage that may be sustained by reason of any disposition of the pro-
perty being delayed, then and in such case such judge may direct the
registrar to delay registering any dealing with the land, lease, mort-
gage, or charge, or issuing a registration abstract, for a further period
to be specified in such order, or may make such other order, and in
either case such order as to costs, as is just.

185 [Am. 1916, s. 13]. So long as any caveat remains in force pro-
hibiting any registration or dealing, the registrar shall not, except in
accordance with some provision of such caveat, or with the consent in
writing of the caveator, enter in the register book any change in the
proprietorship of, or any transfer or other instrument purporting to
transfer or otherwise deal with or affect, the estate or interest in re-
spect to which such caveat is lodged, or issue any registration abstract.

186. Any person lodging any caveat with the registrar, either
against bringing land under this Act or otherwise, without reasonable
cause, shall be liable to make to any person who may have sustained
damage thereby such compensation as a judge on a summons in cham-
bers deems just and orders.

187. A memorandum of every caveat lodged under the provisions
of section 183 shall be endorsed on the grant or the certificate of the
land, or on the instrument to which it relates, and a copy of the caveat,
or of so much thereof as the registrar deems material to the person
notified, shall be sent with the notification required by section 184.

188. Where a caveat has been lodged by or on behalf of a bene-
ficiary claiming under a will or settlement, and a change in the pro-
prietorship of, or a transfer or other dealing with or affecting, the
land, estate, or interest in respect of which the caveat was lodged is
presented for registration, the same may notwithstanding section 185 be
registered without the caveat being withdrawn, and without deter-
mining the operation of the caveat, provided the commissioner is of
opinion that such change of proprietorship, or such transfer or other
dealing, is authorized by the will or settlement, and the caveator either
consents to the registration, or does not lodge a written protest against
such registration within fourteen days after being served with notice
as such caveator.

Part VIII. Powers of Attorney axd Attestation of Instruments.

189. The proprietor of any land under the operation of this
Act, or of any lease, mortgage, or charge may appoint any person
to act for him in transferring the same, or otherwise dealing there-
with, by signing a power of attorney in the form in the seven-
teenth schedule. Every such power shall be filed in accordance with

444 APPENDIX OF STATUTES.

the provisions of Part XI. of the Instruments Act 1915, and if so filed
within four months after the date thereof shall be deemed to be in force
at the time of the filing thereof, unless a revocation thereof has been
previously registered under the said Act; but this shall not diminish
the force and effect of any such power if filed afterwards. Any such
power may be revoked in the cases>and manner specified in such Act;
and after the registration of any revocation of the power the registrar
shall not give effect to any transfer or other instrument signed pur-
suant to the power, unless signed under any then outstanding registra-
tion abstract.

190. A power of attorney given by a person before as well as after
becoming a proprietor of any land, or of any lease, mortgage or charge,
shall be deemed to be within the meaning of the last preceding section;
and every power of attorney heretofore given or which hereafter is
given, when filed 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 under this Act with any land under the operation hereof, or
with any lease, mortgage or charge.

191. Instruments and powers of attorney under this Act signed by
any person, and attested by one witness, shall be held to be duly exe-
cuted, and such witness may be —

Within the limits of Victoria —

The registrar, or an assistant registrar, or a justice of the
peace, notary public, barrister, solicitor of the Supreme
Court, or clerk to a solicitor of the Supreme Court,
registrar of county court, clerk of petty sessions, or
commissioner for taking affidavits, or any perpetual com-
missioner, or town clerk, shire secretary, postmaster, post-
mistress, head teacher of State school, bank manager, or
bank accountant, secretary of building society, minister of
religion authorized to celebrate marriages within Victoria,
or any other person authorized in that behalf by the Gov-
ernor in Council:

And without the limits of Victoria —

Either a notary public or commissioner for taking affidavits, or
else the mayor or other chief officer of any city or munici-
pal corporation within the United Kingdom of Great
Britain and Ireland, or the officer administering the gov-
ernment of or the judge of any court of record in any
British possession, or the British consular officer (which
expression shall include consul-general, consul, and vice-
consul and any person for the time being discharging the
duties of consul-general, consul or vice-consul) at any
foreign place; the agent-general of the State of Victoria
in the United Kingdom; the mayor or other chief officer of
any city or municipal corporation in any of the States of
the Commonwealth of Australia, New Zealand, or other
British possession; the police magistrate, resident magis-
trate, stipendiary magistrate, or special magistrate, in any
of the said States, New Zealand, or other British posses-
sion; the manager or accountant of any branch of any

VICTORIA. 445

Dank incorporated under the law of the Commonwealth of
Australia, or of any of the States thereof, or of the Domin-
ion of New Zealand, or of the United Kingdom of Great
Britain and Ireland; the registrar-general or recorder of
titles in any of the said States; a justice of the peace in.
any of the States of the Commonwealth of Australia; and
any other person whosoever who is authorized in that
behalf by the Governor in Council.
Such witness, whether within or without the limits of Victoria, may also
be any other person; but in such case he shall appear before one of the
officers or persons aforesaid, who after making due enquiries of such
witness shall endorse upon the instrument or power a certificate in the
form in the eighteenth schedule; and such certificate shall be deemed
sufficient proof of the due execution of such instrument or power.
Where an instrument or power of attorney purports to be attested, or a
certificate purports to be signed as aforesaid, the registrar may take
official notice of such signature, and of the fact that the person attesting
or signing possessed the requisite qualification. No fee shall be de-
manded or taken by any registrar, assistant registrar, or justice of
the peace for attesting within Victoria any instrument or power of
attorney under this Act; and any registrar, assistant registrar, or jus-
tice of the peace who demands or takes any such fee shall be liable to
a penalty of not less than five nor more than twenty pounds.

Nothing in this section shall limit or affect the provisions of the
Evidence Act 1915 enabling instruments to be attested without the
limits of Victoria.

V. 1916, s. 24. The signature of every person, by whom any appli-
cation, instrument, or other document is required to be signed or
attested, shall be written in ink.

Id. s. 25. Every person, authorized by or under the Transfer of
Land Acts to attest instruments, shall state truly in the attestation
clause at what place the instrument was signed by the person whose
signature he purports to attest, and the forms of instruments specified
in the schedules to any of such Acts shall be amended accordingly.

[And see the Execution of Instruments Act 1915 — ''An Act to
facilitate the execution of instruments and powers of attorney during
the present war " — under which documents signed by a person " en-
gaged in war service . . . upon verification to the satisfaction of
the registrar of titles of the signature thereto, shall although not at-
tested be held to be duly executed."]

Part IX. Registration ABSTRACTS, Search Certificates, a.vd Stay

Orders.

[192-195: V. 1890, ss. 153-156, Aust. Torr. Syst. 547. 548.]
196. Any person desiring to learn whether a proprietor is able to
deal with the land comprised in his certificate, free from obstruction
caused by any caveat or instrument lodged for registration, order,
injunction, or other cause known to the registrar but not appearing
upon the certificate, may sign an application for a search certificate
in the form in the twentieth schedule; and on payment of the fee in
that behalf provided, the registrar shall cause the necessary searches
and enquiries to be made for the purpose of affording the information

44G APPENDIX OF STATUTES.

required; and the result thereof shall be certified in the form in the
said schedule contained, by affixing the seal of the office, with the
initials of the officer attaching the same, and the day, hour, and minute
at which the seal is affixed.

197. Such search certificate shall refer to the dealing or incum-
brance last noted on the certificate of title, for the purpose of showing
the state of the register at the time of issuing the search certificate, but
not of informing the person applying for the search certificate as to
what is upon the certificate of title; and such person shall be entitled
to inspect the certificate of title, and shall be deemed to know all of
which an inspection of the certificate of title would have informed him.

198. Any person proposing to deal for value with a proprietor may,
with the consent in writing of such proprietor, or his agent authorized
in writing in that behalf, and on stating the particulars of the proposed
dealing, lodge with the application for search certificate an applica-
tion for stay of registration in the form in the twenty-first schedule;
and if the result of the search shows that the proprietor is free to deal,
the registrar shall, on payment of the fee in that behalf provided, sign
an order in the form in the said schedule staying registration of any
instrument affecting the land to be comprised in the proposed dealing
for forty-eight hours from the time mentioned in the search certificate ,
and the said order shall be affixed to tne certificate and a copy thereof
given to the applicant.

199. If within the said period of forty-eight hours a properly per-
fected instrument effecting the puroposed dealing is duly lodged for
registration, such instrument shall have priority over any other instru-
ment which is lodged for registration after the time mentioned in the
search certificate, and the same shall be registered notwithstanding
any caveat, copy of writ, or application by an assignee or trustee in
insolvency, which has been lodged in the office after the time mentioned
in such search certificate.

200. Subject to the lodging of such duly perfected instrument
within such period, any other instrument, and any caveat, copy writ, or
application received in the office during such period, shall be dealt with
in the same manner, shall have the same priority as between them-
selves, and shall be as effectual, as if no stay of registration had been
obtained.

Part X. Surveys, Plans, Parcels and Boundaries.

201. On an application made to bring land under this Act, or to
have a certificate of title amended as to the description of land therein
as hereinafter authorized, and on any proposed subdivision under sec-
tion 211 of this Act, the commissioner may require such survey and
plans to be made, and such particulars of the boundaries, abuttals,
adjacent buildings of stone or brick, area, and position to be furnished
at the cost of the applicant or registered proprietor as the commis-
sioner thinks fit. All surveys required by the commissioner in bring-
ing land under this Act shall be made by a licensed surveyor, unless the
commissioner otherwise directs.

[202-210: V. 1890, ss. 163-171, Aust. Torr. Syst. 549-553. See also
Real Property Act 1915 (No. 2719), ss. 150-156, a re-enactment of ss.
211-217 of the Real Property Act 1890, printed in Aust. Torr. Syst. 595-
598J

VICTORIA. 447

211. Any proprietor subdividing any land under the operation of
this Act for the purpose of selling the same in allotments shall deposit
with the registrar a map of such land if so required. Such map shall
exhibit distinctly delineated all roads, streets, passages, thoroughfares,
squares, or reserves appropriated or set apart for the use of the pur-
chasers, and also all allotments into which the said land is divided,
marked with distinct numbers or symbols, and shall also show the
areas, and shall be declared to be accurate by a statutory declaration
of a licensed surveyor.

212. After the subdivision of land and deposit of plan under the
last preceding section, the numbers of the allotments marked upon
such plan may be used as sufficient description of the land, for the
purpose of dealings with any one or more of such allotments on the
sale thereof according to such plan of subdivision, and on any subse-
quent dealings comprising the whole of one or more allotment or
allotments.

213. On an application to bring land under this Act, or for an
amended certificate, the land included in the certificate to be issued
shall, at the request of the applicant, and may at the discretion of the
commissioner, notwithstanding sections 24 and 47 and the third
schedule, be described by its abuttals, both in the body of the certificate
and in the plan thereon, or in the plan only. Any abuttal so used may
be described by the name by which it is commonly known, and with
or without the name of its reputed owner; and if the abuttal is upon or
consists of land under this Act, the volume and folio of the certificate
of the land constituting the abuttal, or on which the abuttal stands,
shall be mentioned; and abuttals shall be used in addition to and not
in substitution for dimensions, unless the commissioner specially
authorizes the land, or any boundary of the land, being described by
abuttals only.

214. For the purpose of this Act, any of the objects hereinafter
mentioned may be mentioned as an abuttal: — Any building, wall, sec-
tional division of party wall, fence, public or private street or road,
lane or passage, land dedicated to or reserved for the public, Govern-
ment reserve, Crown section allotment or portion, land described in any
certificate of title, and any bay, lake, river, creek, or natural or artificial
water-course; and mention of an abuttal in any certificate of title shall
not be deemed to give title to the abuttal, or to be evidence of the title
of any person who is referred to in the description as owner or occu-
pant of the land upon which any abuttal stands, or of any land con-
stituting an abuttal.

Part XI. Rectification of Certificates.

215 [Am. 1916, s. 14]. A proprietor may apply to have his Crown
grant or certificate of title amended, in any case in which the boun-
daries, area, or position of the land therein described differ from the
boundaries, area, or position of the land actually and bona fide occu-
pied by him, and purporting to be so occupied under the title in respect
of which the certificate issued, or in any case in which the description
in the certificate is erroneous or imperfect on the face of it. An
amendment made pursuant to an order in an application under this
section shall, unless the commissioner otherwise orders, be deemed to

448 APPENDIX OF STATUTES.

have been made as on the date when the application was lodged with
the registrar, and bear date accordingly.

216. A proprietor may apply for the rectification of the original
and duplicate certificate of any other proprietor or proprietors, in any
case in which the land described in the applicant's certificate, and actu-
ally and bona fide occupied by him, comprises land which by reason of
any error in survey or other misdescription is included in the land
described in any other certificate or certificates.

217. Any application to be made as aforesaid shall be in the form
set forth in the twenty-third schedule, and the attorney of any corpora-
tion registered as proprietor may apply on behalf of the corporation
in manner provided by section 18.

[218, 220, 221: V. 1890, ss. 179, 181, 182, Aust. Torr. Syst. 554, 555.]
219. [1916, s. 15]. In any case in which the granting of an appli-
cation to be made as aforesaid, or of an application to bring land
under this Act, would affect land comprised in any other certificate or
Crown grant, or cause a certificate to issue which would be inconsistent
with any other certificate or Crown grant, the commissioner shall, in
addition to any other notices which he requires, direct notice of the
application to be served upon all persons appearing by the register to
be the owners of an estate in fee simple in, or lessees or mortgagees of,
the land which would be affected, or the land comprised in the certifi-
cate or Crown grant as to which the inconsistency would arise, accom-
panied by a plan showing accurately the extent to which the certificate
or Crown grant thereof would be affected if the application was
granted, and a copy of such plan shall until such application has been
finally dealt with be kept open for inspection at the office of titles.

222 [Am. 1916, s. 16[. On any application under sections 215 or
216, or to bring land under this Act, the commissioner may grant the
same, although the certificate to be issued or the rectification of the
register to be made upon such application may affect land comprised
in any other certificate or Crown grant, if it appears that the land so
affected has been included in such other certificate or Crown grant, by
reason of some error in survey or other misdescription, unless the title
to the land so affected has been theretofore determined in a contested
proceeding under this Act, or in any court of competent jurisdiction in
which the right to the possession of such land was in question.

223 [Am. 1916, s. 17]. Upon granting any such application, the
commissioner shall direct the registrar to rectify the register by mak-
ing the requisite alteration in the original of any other certificate or
Crown grant, accompanied by a statement made and signed by him in
the register book of the circumstances under which the rectification
has been made; and the registrar shall make the requisite alteration in
the duplicate certificate or Crown grant when brought to him for that
purpose, or when the same is lodged in or brought to the office for the
purpose of any dealing with the land comprised therein, and may detain
the duplicate until the rectification thereof is completed; and the reg-
istrar may refuse to register any dealing with the land, or any estate
or interest therein, until the duplicate has been brought in for rectifi-
cation.

224 |1916, s. 18 1 . Upon rectifying the original of any certificate
or Crown grant as hereinbefore mentioned, the registrar shall give
notice in writing to the proprietor of the land comprised in the cer-

VICTORIA. 449

tificate or Crown grant, informing him of the rectification, and that
on the duplicate certificate or Crown grant being brought into the
office of titles a new duplicate certificate, with an amended description
showing accurately the land then comprised in the certificate or Crown
grant will be issued to him free of cost; and on the same being brought
in, the proprietor shall be entitled to receive a new duplicate certifi-
cate with an amended description, in substitution for the duplicate
certificate or Crown grant so brought in; and every new certificate so
issued shall bear the same numbers as the certificate or Crown grant
for which it is substituted, with the word ' substituted ' prefixed to the
volume and folio.

Part XII. Special Powers and Dities of the Commissioner and

Registrar.

225. The commissioner may, by summons under his hand in the
form in the twenty-fourth schedule, require the proprietor or mort-
gagee, or other person interested in any land under the operation of
this Act, in respect of which any transfer, lease, mortgage, charge or
other dealing, or any discharge from any mortgage or charge, is pro-
posed to be transacted or registered, or in respect of which any trans-
mission is proposed to be registered, or registration abstract issued, to
appear at a time and place to be appointed in such summons and give
any explanation concerning such land, or any document affecting the
title thereto, and to produce any grant, certificate of title, will, mort-
gage, or other instrument or document in his possession or within his
control affecting such land or the title thereto; and the commissioner is
hereby authorized to examine upon oath (which oath he is hereby
empowered to administer) any such proprietor, mortgagee, or other
person as aforesaid; and any such proprietor, mortgagee, or other per-
son who fails, refuses or. neglects to attend the commissioner for the
purpose of being examined, or to produce any such document, or allow
the same to be inspected, or refuses or neglects to give any such ex-
planation as aforesaid, shall be liable on any such default to be dealt
with as in the case of a contempt of the Supreme Court; and if the
information or document withheld appears to the commissioner to be
material, the registrar shall not be bound to proceed with the transac-
tion.

226 [1916. s. 19]. (1) The commissioner may with the consent of
the Governor in Council make regulations in respect to the following
matters: —

(i) The parcels of land that may be included in one certifi-
cate of title,
(ii) The quality and size of the paper to be used for applica-
tions, instruments, and other documents to be lodged with
the registrar,
(iii) The preparation of such applications, instruments, and

other documents.
(It) The forms to be used for applications, instruments, and
other documents to be lodged with the registrar, but any
such regulation and the forms thereunder shall be subject
to the provisions of section 279 of [this] Act.

r.t.l. — 29

450 APPENDIX OF STATUTES.

(v) The licensing of persons, including the registrar, to sell

the prescribed forms,
(vi) Any .other matter or thing relating to or connected with
any of the above-mentioned matters which it may be ex-
pedient to prescribe by regulation.
(2) The commissioner may also with the like consent by regula-
tion—

(i) make such alterations in the several forms in the several

schedules hereto as he deems requisite; and
(ii) repeal or alter any regulation made under this section;
and every form authenticated by the seal of the office shall be taken
to be in the legally authorized form, unless the contrary is proved.

227. Whenever any person interested in land under the operation
of this Act, or any estate or interest therein, appears to the Supreme
Court or to a county court in its equitable jurisdiction, or to the com-
missioner to be a trustee of such land, estate, or interest within the
intent and meaning of any Act now or hereafter to be in force relating
to trusts and trustees, and any vesting order is made in the premises
by either of the said courts or by the commissioner (which order he is
hereby empowered to make concurrently with the Supreme Court), the
registrar, on being served with such order or an office copy thereof,
shall enter in the register book and on the duplicate grant or certifi-
cate of title, and duplicate instrument (if any), the date of the said
order, the time of its production to him, and the name and addition of
the person in whom the said order purports to vest the said land, estate
or interest; and upon such entry in the register book such person shall
become the transferee, and be deemed to be the proprietor thereof.
Unless and until such entry is made, the said order shall have no effect
or operation in transferring or otherwise vesting the said land, estate
or interest.

228 [Am. 1916, s. 20]. If it is proved to the satisfaction of the
commissioner that land under this Act has been sold by the proprietor,
and the whole of the purchase money paid, and that the purchaser or
those claiming under him has entered and taken possession under such
purchase, and such entry and possession have been acquiesced in by the
vendor or his representatives, but that no transfer has ever been exe-
cuted by the vendor, and cannot be obtained by reason that the vendor
is dead or residing out of the jurisdiction or cannot be found, the com-
missioner may in his discretion make a vesting order in the premises,
and the registrar on being served with such order shall make the en-
tries directed to be made by the last preceding section of this Act in the
case of the vesting orders therein mentioned, and the making or the
omission to make such entries shall be attended by the same results as
declared by the said section in respect of the vesting orders therein
mentioned.

229. If it is proved to the satisfaction of the commissioner that the
rights of an official assignee or trustee in insolvency, or of an execution
creditor, notified as an incumbrance on the certificate, have been fully
satisfied, extinguished or otherwise determined, and no longer affect
the land comprised in the certificate, the commissioner may either
direct a statement to that effect signed by the registrar to be endorsed
on the certificate, or permit any subsequent certificate dealing with the
same land to be issued free from such incumbrance.

VICTORIA. 451

230. On proof to the commissioner that any judgment, of which a
copy writ of execution has been entered under section 178 has been
satisfied before the period for which such entry is operative has elapsed,
the commissioner may write the word " satisfied " with his signature
and the date of the signing upon or below the entry of copy writ in the
register book, and thereupon such writ shall cease to affect the land
as to which the entry was made.

231. If at the time when any mortgage, conveyance, or transfer on
sale of any real property, or any application or consent under this Act
which is liable to duty under parts II. and III. of the Stamps Act 1915,
is left at the titles office, there is affixed thereto an adhesive stamp un-
cancelled or only partially cancelled, it shall be competent for any
officer authorized by the commissioner or registrar to cancel such stamp
as if he was the person by whom it was affixed, and upon his so doing
such mortgage, conveyance, transfer, application, or consent shall be
deemed to be duly stamped, and as valid in all respects as if the stamp
had been duly cancelled by the person by whom It was affixed: pro-
vided that, in the case of receipts and conveyances or transfers on sale,
the stamps shall be so cancelled subject to the penalties and within the
times provided by section 28 of the Stamps Act 1915.

232 [Am. 1916, s. 21]. Upon the receipt of the probate of any will,
or of any letters of administration, or of a rule to administer granted
to the curator, or of any rule or order whereby it appears that any
person has been appointed or constituted the executor or administra-
tor of any deceased person, or upon the receipt of an office copy of any
such probate, letters of administration, rule to administer, rule or
order, and upon the notification in the Government Gazette of the
appointment of any succeeding curator, the registrar of titles shall,
on an application in writing of the executor, administrator, or curator
(as the case may be) to be registered as proprietor in respect of any
land therein described, enter in the register book, upon the leaf con-
stituted by the grant or certificate of title of such land, a memorandum
notifying the appointment of such executor, administrator or curator,
and the day of the death of the proprietor when the same can be ascer-
tained, and upon such entry being made such executor, administrator,
or curator shall become the transferee and be deemed to be the pro-
prietor of the estate or interest of the deceased proprietor in such
land, or of such part thereof as then remains unadministered, and
shall hold the same subject to the equities upon which the deceased
held the same, but for the purpose of any dealings with such land
under the provisions of this Act every such executor, administrator, or
curator shall be deemed to be the absolute proprietor thereof. If in
any case probate or administration is granted to more persons than
one, all of them for the time being shall join and concur in every in-
strument relating to the land. No contribution to the assurance fund
under this Act shall be payable on the registration of such executor,
administrator or curator.

233. The registrar may exercise and shall perform the following
powers and duties (that is to say) : —

(i) He may administer an oath, and may take and receive the
declaration of any person voluntarily making the same,
and in this Act the expression " statutory declaration "
shall be deemed to include any declaration so taken and

452 APPENDIX OF STATUTES.

received, and such last-mentioned declaration shall for all
purposes be deemed to be a statutory declaration within
the meaning of that expression in the Evidence Act 1915.
(ii) He shall upon the direction of the commissioner correct
errors in the register book, or in entries made therein or
in duplicate certificates or instruments, and may supply
entries omitted to be made under the provisions of this
Act; but in the correction of any such error he shall not
erase or render illegible the original words, and shall
affix the date on which such correction was made or entry
supplied, and initial the same; and every error or entry so
corrected or supplied shall have the like validity and
effect as if such error had not been made, or such entry
omitted, except as regards any entry made in the register
book prior to the actual time of correcting the error or
supplying the omitted entry,
(iii) He shall upon the direction of the commissioner lodge a
caveat on behalf of his Majesty, or on behalf of any person
who is under the disability of infancy, coverture, lunacy,
unsoundness of mind or absence from Victoria, to pro-
hibit the transfer or dealing with any land belonging or
supposed to belong to any such person, and also to pro-
hibit the dealing with any land, in any case in which it
•appears that an error has been made by misdescription of
' such land or otherwise, in any certificate of title, or in any
instrument, or for the prevention of any fraud or impro-
per dealing.
234. The registrar may without the direction of the commissioner
correct any patent error appearing on the face of any instrument
lodged for registration, without such instrument being withdrawn from
the office: Provided always that such correction be made in compliance
with sub-section (ii) of the last preceding section, and such correction
shall have the same validity and effect as if made under the direction
of the commissioner under the said section.

[235-238: V. 1890, ss. 196-199, Aust. Torr. Syst. 560, 561.]
V. 1916, s. 22. (1) If at any time the registrar is of opinion that
the production of any documents or evidence, or the giving of any
notice, or the doing of any act, is necessary or desirable, then if such
documents Or evidence or notices are not supplied or given, or such act
done, within such time as he allows —

(o) he may refuse to complete or proceed with a registration,

or to do any act, or make any entry;
(6) he may thereupon return to the person by whom they
were lodged all or such of the instruments and other docu-
ments lodged in connexion with the matter as he thinks
fit. by delivering the same to him personally, or by send-
ing the same through the post to him at his address; and
(c) the fees paid in respect of any such matter shall be for-
feited and dealt with as a penalty, under section 235 of
the principal Act.
(2) When the fees paid in respect of any matter are forfeited
under this section, one-half only of the corresponding fees shall be
charged in respect of any subsequent application for the same purpose,

VICTORIA. 453

or in respect of any instrument or other document relodged for regis-
tration, provided that the requisition previously made has been com-
plied with, or compliance therewith is not in the opinion of the reg-
istrar any longer necessary.

Id. s. 26. Whenever the condition of a duplicate certificate of
title or Crown grant lodged with the registrar for any purpose is such
that the registrar deems it inadvisable to re-issue the same, he may
require a new certificate of title to be taken out.

Id. s. 30. The registrar may, upon the delivery up to him of a
duplicate Crown grant or certificate of title, issue a new certificate of
title in the place of the existing Crown grant or certificate of title,
which shall thereupon be cancelled.

Part XIII. Assurance Fund.

239. All sums of money which are received by the registrar as
contributions to the assurance fund, or in augmentation thereof, shall
be paid to the treasurer of Victoria, who shall place such sums to the
credit of an account to be kept in the treasury to be called "the assur-
ance fund," and shall from time to time invest the same, together with
all dividends and profits thereon, in Victorian government securities,
to constitute an assurance fund for the purposes hereinafter men-
tioned.

240. Whenever any amount has been paid out of the assurance
fund on account of any person who is dead, such amount may be re
covered from the estate of such person by action against his persona?
representatives, in the name of the registrar; and whenever such
amount has been paid on account of a person who has been adjudged
insolvent, the amount so paid shall be considered to be a debt due
from the estate of such insolvent, and a certificate signed by the
treasurer of Victoria certifying the fact of such payment out of the
assurance fund, and delivered to the official assignee, shall be sufficient
proof of such debt; and whenever any amount has been paid out of the
assurance fund on account of any person who has absconded or who
cannot be found within the jurisdiction of the Supreme Court, and
has left any real or personal estate within Victoria, it shall be law-
ful for the said court or a judge thereof, upon the application of the
registrar, and upon the production of a certificate signed by the
treasurer of Victoria certifying that the amount has been paid in
satisfaction of a judgment against the registrar as nominal defendant,
to allow the registrar to sign judgment against such person forthwith
for the amount so paid out of the assurance fund, together with the
costs of the application, and such judgment shall be final and signed in
like manner as final judgment by confession or default in an adverse
action, and execution may issue immediately; and if such person has
not left real or personal estate within Victoria sufficient to satisfy
the amount for which execution has been issued as aforesaid, it shall
be lawful for the registrar to recover such amount, or the unrecovered
balance thereof, by action against such person at any time thereafter.

241. The assurance fund shall not under any circumstances be
liable for compensation for any loss, damage, or deprivation occasioned
by the breach by a proprietor of any trust, whether express, implied
or constructive; nor in any case in which the same land has been in-
cluded in two or more grants from the Crown; nor shall the assurance

454 APPENDIX OF STATUTES.

fund be liable in any case in which such loss or deprivation has been
occasioned by any land being included in the same certificate of title
with other land through misdescription of boundaries or parcels of
any land, unless in the case last aforesaid it is proved that the person
liable for compensation and damages is dead or has absconded, or has
been adjudged insolvent, or the sheriff certifies that such person
is unable to pay the full amount awarded in any action for recovery of
such compensation and damages: Provided always that any amount
paid out of the assurance fund on account of any person who has
absconded may be recovered from such person by action, in the name
of the registrar, at any time thereafter: provided also that the said
fund shall be liable for such amounts only as the sheriff fails to recover
from the person liable as aforesaid.

242 [Am. 1916, s. 23 J. Upon granting an application made under
this Act for amendment of a certificate, or made under this Act for the
exercise by the commissioner of any of the powers conferred on him
by sections 78, 79, 144, 204, 205, 228, 229, 271, and 272, or for the
waiver of any requisition made in connexion with a proposed dealing
under this Act, the commissioner may grant such application, condi-
tioned upon the applicant contributing to the assurance fund such a
sum of money as the commissioner certifies under his hand to be in his
judgment a sufficient indemnity, by reason of the non-production of
any document affecting the title, or of inability to obtain a consent,
serve a notice, or comply with any other requisition made in the case,
or by reason of the imperfect nature of the evidence of title, or as
against any uncertain or doubtful claim or demand incident to or
which may arise upon the title, or any risk to which the assurance
fund may be exposed by the granting of the application.

Part XIV. Actions and other Remedies.

243. The commissioner shall not, nor shall the registrar or any
person acting under the authority of either of them, be liable to any
action, suit, or proceeding for or in respect of any act or matter bona
fide done or omitted to be done in the exercise or supposed exercise of
the powers of this Act.

244. No action of ejectment, or other action for the recovery of
any land, shall lie or be sustained against the person registered as
proprietor thereof under the provisions of this Act, except in any of the
following cases (that is to say): —

(i) The case of a mortgagee as against a mortgagor in de-
fault:
(ii) The case of an annuitant as against a grantor in default:
(iii) The case of a lessor as against a lessee in default:
(iv) The case of a person deprived of any land by fraud, as
against the person registered as proprietor of such land
through fraud, or as against a person deriving otherwise
than as a transferee bona fide for value from or through
a person so registered through fraud:
(v) 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 other land or of its boundaries,
as against the registered proprietor of such- other land not
being a transferee thereof bona fide for value:

VICTORIA. 455

(vi) The case of a registered proprietor claiming under a grant
or certificate of title prior in date of registration under
the provisions of this Act, in any case in which two or
more grants, or two or more certificates of title, or a grant
and a certificate of title, may be registered under the pro-
visions of this Act in respect of the same land:
And in any case other than as aforesaid, the production of the regis-
tered grant, certificate of title, or lease shall be held in every court of
law or equity to be an absolute bar and estoppel to any such action,
against the person named in such document as the grantee, proprietor,
or lessee of the land therein described, any rule of law or equity to the
contrary notwithstanding.

245. Upon the recovery of any land, estate, or interest, by any
proceeding at law or in equity, from the person registered as proprietor
thereof, it shall be lawful for the court or a judge, in any case in which
such proceeding is not herein expressly barred, to direct the registrar
to cancel any certificate of title or instrument, or any entry or me-
morial in the register book relating to such land, estate or interest, and
to substitute such certificate of title or entry as the circumstances of
the case require; and the registrar shall give effect to such order.

246. Any person deprived of land, or of any estate or interest in
land, in consequence of fraud, or through the bringing of such land
under the operation of this Act. or by the registration of any other
person as proprietor of such land, estate or interest, or in consequence
of any error or misdescription in any certificate of title, or in any
entry or memorial in the register book, may bring and prosecute an
action at law for the recovery of damages, against the person upon
whose application such land was brought under the operation of this
Act, or such erroneous registration was made, or who acquired title to
the estate or interest through such fraud, error or misdescription: pro-
vided always that, except in the case of fraud or of error occasioned by
any omission, misrepresentation, or misdescription in the application
of such person to bring such land under the operation of this Act, or to
be registered as proprietor of such land, estate or interest, or in any
instrument signed by him, such person shall, upon a transfer of such
land bona fide for value, cease to be liable for the payment of any
damage which but for such transfer might have been recovered from
him under the provisions herein contained; and in such last-mentioned
case, and also in case the person against whom such action for damages
is directed to be brought as aforesaid is dead, or has been adjudged
insolvent, or cannot be found within the jurisdiction of the Supreme
Court, then and in any such case damages with costs of action may be
recovered out of the assurance fund, by action against the registrar as
nominal defendant: provided also that in estimating such damages,
the value of all buildings and other improvements erected or made
subsequently to the deprivation shall be excluded.

247. Nothing in this Act contained shall be so interpreted as to
leave subject to an action of ejectment, or to an action for recovery of
damages as aforesaid, or for deprivation of the estate or interest in
respect to which he is registered as proprietor, any purchaser bona
fide for valuable consideration of land under the operation of this Act,
on the ground that the proprietor through or under whom he claims
was registered as proprietor through fraud or error, or has derived

456 APPENDIX OF STATUTES.

from or through a person registered as proprietor through fraud or
error; and this whether such fraud or error consists in wrong descrip-
tion of the boundaries, or of the parcels of any land, or otherwise how-
soever.

248. [Am. 1916, s. 28]. If upon the application of any owner or
proprietor to have land brought under the operation of this Act, or to
have any dealing or transmission registered or recorded, or to have
any certificate of title, registration abstract, foreclosure order, or other
document issued, or to have any act or duty done or performed which
by this Act is required to be done or performed by the registrar, the
registrar refuses so to do, or if such owner or proprietor is dissatisfied
with the direction upon his application given by the commissioner, it
shall be lawful for such owner or proprietor to require the registrar to
set forth in writing under his hand the grounds of his refusal, or the
grounds upon which such direction was given; and such owner jor pro-
prietor may if he thinks fit at his own cost summon the registrar to
appear before the Supreme Court, to substantiate and uphold the
grounds of his refusal or of such direction as aforesaid, such sum-
mons to be issued under the hand of a judge and to be served upon the
registrar six clear days at least before the day appointed for hearing
the complaint of such owner or proprietor. Upon such hearing the
registrar or his counsel shall have the right of reply; and the said
court may, if any question of fact is involved, direct an issue to be
tried to decide such fact; and thereafter the said court shall make
such order in the premises as the circumstances of the case require;
and the registrar shall obey such order, and all expenses attendant
upon any such proceedings shall be borne and paid by the applicant or
other person preferring such complaint, unless the court certifies that
there was no probable ground for such refusal or direction as afore-
said. Where an application under section 87 of this Act for a vesting
order is rejected by the commissioner, such rejection shall be deemed
and taken to be a direction upon the application given by the commis-
sioner within the meaning of this section.

249. Upon any summons or proceeding under the last preceding
section, the court may, notwithstanding anything in the said section to
the contrary, make such order as to the costs, expenses of, and atten-
dant upon such summons or proceeding as it deems just; and all costs
and expenses to be paid by the registrar under such order shall be paid
out of the assurance fund.

250. Any person sustaining loss through any omission, mistake,
or misfeasance of the registrar, or any other officer or clerk, in the
execution of their respective duties under the provisions of this Act, or
by any error, omission, or misdescription in any certificate of title, or
any entry or memorial in the register book, or by the registration of
any other person as proprietor, and who by the provisions of this Act is
barred from bringing an action of ejectment or other action for the
recovery of the land, estate or interest, may, in any case in which the
remedy by action for recovery of damages as herein provided is in-
applicable, bring an action against the registrar as nominal defendant,
for recovery of damages; in estimating which damages however the
value of all buildings and other improvements, erected or made sub-
sequently to the loss of deprivation, shall be excluded.

VICTORIA. 45 T

251. Any person sustaining any loss or damage by any rectifica-
tion of a certificate under this Act, or by the bringing of land under
this Act. if the rectification or the issue of the certificate by which such
loss or damage was occasioned was in consequence of or justified by
any inaccuracy in any survey or plan or description of land used upon
any sale of land by the Crown, then notwithstanding the provisions of
section 246 and section 250, but without prejudice to the rights (if any)
of such person thereunder, may in the first instance, and without any
obligation to pursue the remedies provided by such sections, bring an
action against the registrar as nominal defendant, for recovery of
damages, and may recover the damages awarded, together with the
costs of the action, out of the assurance fund.

252. Any person who has sustained or hereafter sustains any loss
or damage in or by the exercise by the commissioner of any of the
powers conferred on him by this Act, or by the corresponding provi-
sions of any Act heretofore in force, and who has not been party or
privy to the application or dealing in connexion with which such
power was exercised, may notwithstanding the provisions of section
246 and section 250, and without prejudice to the rights (if any) of
such person thereunder, in the first instance, and without any obliga-
tion to pursue the remedies provided by such sections, bring an action
against the registrar as nominal defendant, for recovery of damages,
and may recover the damages awarded, together with the costs of the
action, out of the assurance fund. And where such person has been
party or privy to such application or dealing, he shall be at liberty to
join the registrar as a nominal co-defendant, in any action brought by
him in respect of such loss or damage against any other person or
persons who has or have been party or privy to such application or
dealing, and all damages and costs recovered against the registrar in
such action, whether by the plaintiff or a co-defendant, may be recov-
ered out of the assurance fund.

253. Any person sustaining loss or damage, in any case in which
he is entitled to bring an action to recover damages against the reg-
istrar as nominal defendant, may before commencing proceedings
against the registrar make application in writing to the commissioner
for compensation, and such application shall be supported by affidavit
or statutory declaration. If the commissioner admits the claim or any
part thereof, and certifies accordingly to the attorney-general, there-
upon the Governor may if he thinks fit issue a warrant to the treasurer
for the amount so certified out of the assurance fund.

254. In any case in which an action for recovery of damages is
permitted to be brought against the registrar as nominal defendant,
notice in writing of such action, and of the cause thereof, shall be
served upon such nominal defendant one month at least before the
commencement of such action; and if in any such action judgment is
given in favour of the nominal defendant, or the plaintiff discontinues
or becomes nonsuit, the plaintiff shall be liable to pay the full costs of
defending such action, and the same when taxed may be recovered in
the name of the nominal defendant, by the like process of execution
as in other actions.

255. If in any such action the plaintiff recover final judgment
against such nominal defendant, then the judge before whom such
action is tried, or the Supreme Court or a judge thereof, shall certify

458 APPENDIX OF STATUTES.

the fact of such judgment and the amount of damages and costs re-
covered; and the amount of such damages and costs shall be paid to
the person recovering the same, and shall be charged to the account
of the assurance fund; and in case the balance to the credit of the
assurance fund shall be inadequate to defray the amount specified, such
sum as is necessary for that purpose shall be paid out of the consoli-
dated revenue; and the amount so advanced shall be repaid from the
assurance fund as the same thereafter accrues.

256. No action for recovery of damages sustained through de-
privation of land, or of any estate or interest in land, shall lie or be
sustained against the registrar, or against the assurance fund, or
against the person upon whose application such land was brought
under the operation of this Act, or against the person who applied to
be registered as proprietor in respect to such land, unless such action
is commenced within the period of six years from the date of such de-
privation: provided nevertheless that any person being under the dis-
ability of coverture (except in the case of a married woman entitled
to bring such action), infancy, unsoundness of mind, or absence,
from Victoria, may bring such action within six years from the date on
which such disability has ceased, so however that such action is brought
within thirty years next after the date of such deprivation. The plain-
tiff in any such action, at whatever time it is brought, and the plaintiff
in any action for the recovery of land, shall have judgment entered
against him in any case in which the deprivation complained of has
been occasioned through the bringing of land under the operation of
this Act, if it is made to appear to the satisfaction of the judge before
whom such action is tried that such plaintiff, or the persons through
or under whom he claims title, had notice by personal service or other-
wise, or was aware, that application had been made to bring such land
under the operation of this Act, and had wilfully or collusively or
negligently omitted to lodge a caveat forbidding the same or had
allowed such caveat to lapse.

258. Nothing in this Act contained shall entitle any person to
refuse to make a complete discovery, or to answer any question or
interrogatory in any civil proceeding in any court of law or equity or
insolvency; but no such discovery or answer shall be admissible in
evidence against such person in any criminal proceeding, except a
proceeding for perjury, or for any offence against any Act relating to
insolvency.

Part XV. Offences.

[257, 259-263: V. 1890, ss. 218, 220-224, Aust. Torr. Syst. 567-569.]

Part XVI. Miscellaneous.

264. A devisee, or other person claiming any estate of freehold in
possession, or a power to appoint, transfer, or dispose of the same on a
transmission, may make application in writing to the commissioner to
be registered as proprietor thereof, and shall produce the will, or an
office copy or probate of the will of the deceased proprietor, or letters of
administration with his will annexed, or the settlement under which
such applicant claims, and shall afterwards furnish such other evidence
as is deemed necessary. Such application shall state the nature of

VICTORIA. 459

every interest held by any other person at law or equity in the land,
within the applicant's knowledge, and that he verily believes himself to
be entitled to the estate in or power over such land in respect to which
he applies to be registered, and shall also state the value of the pro-
perty. The devisee, or other person making such application, shall
deliver up the duplicate grant or certificate of title prior to his being
entered in the register book as the proprietor.

265. Such application shall be referred to an examiner of titles
for his examination and report, who shall afterwards submit the papers
to the commissioner, who may either reject such application altogether
or direct notice thereof to be published once at least in one newspaper
published in the city of Melbourne, or circulating in the neighbourhood
of the land, and such further publicity to be given to such application
as he deems fit; and the commissioner shall appoint a time not less
than fourteen days from the advertisement, or the first of such adver-
tisements if more than one, upon or after which the registrar may, un-
less a caveat is lodged forbidding such registration, register such ap-
plicant as the proprietor of such land or estate, by entering in the
register book the particulars of the transmission through which such
applicant claims, and by registering a certificate of title to the land or
estate so transmitted. Upon such entry being made, the applicant
shall become the transferee of such land or estate, and be deemed to
be the proprietor thereof: provided always that the person registered
consequent on such direction shall hold such land or estate for the
purposes for which it is applicable by law; but for the purpose of any
dealings therewith under the provisions of this Act he shall be deemed
to be the absolute proprietor thereof. The commissioner may direct a
caveat to be entered by the registrar for the protection of the interests
of any other persons interested in such land or estate.

266. Any person entitled in remainder, reversion, or otherwise on
a transmission, may apply to be registered as so entitled in like manner,
and supported by the like evidence as near as may be. as is herein
provided with respect to avdevisee or other person claiming an estate
of freehold in possession. Such application shall be dealt with in the
like manner as is mentioned in the last preceding section; and any
entry made thereupon shall have the same effect, and the person
registered shall hold the land for the same purposes, and shall have the
same powers, as is and are mentioned in such section. If there is
any doubt, dispute, or litigation under this or under either of the two
last preceding sections, as to the true construction or legal validity or
effect of any will or settlement relating to any freehold land or estate,
or if the person entitled under any of the provisions of this Act to any
land or estate under any will, settlement, or instrument cannot be
ascertained, the Supreme Court sitting in the exercise of its equitable
jurisdiction may appoint a person to be registered as the representative
of such land or estate; and such person when registered shall become
the transferee, and be deemed to be the proprietor thereof for the pur-
poses of this Act, subject however to any directions which from time to
time are given by the court sitting as aforesaid, touching the disposi-
tion thereof or the dealing therewith.

267. The commissioner, upon production of sufficient proof of the
marriage of a female proprietor of any land, or of any lease, mortgage,
or charge not appearing by the register book to be held for her sepa-

460 APPENDIX OF STATUTES.

rate use, accompanied by an application in writing, signed by such
female proprietor, to register her husband as joint proprietor thereof
in her right, shall direct the registrar to enter in the register book, and
also upon the duplicate grant or certificate of title and duplicate in-
strument (if any) evidencing the title of such female proprietor when
produced to him for that purpose, the name and addition of her hus-
band, the date and place of the marriage, and the time of making such
entry; and the husband of such female proprietor shall, on such entry
being made in the register book, become a joint transferee thereof, and
be deemed to be joint proprietor thereof in right of his wife. Until
such entry is made, she shall be deemed to be the sole and absolute
proprietor of such land, lease, mortgage or charge, and may transfer or
otherwise deal with the same at law and in equity.

268. Upon the death, in the life-time of his wife, of any husband
registered as joint proprietor with her of an estate in fee simple, or of
a lease, mortgage, or charge in her right, or upon the death of any
female proprietor whose husband is entitled as tenant by the curtesy to
any freehold land, or upon the death of any person registered with any
other person as joint proprietor of any land, or of any lease or charge,
or as joint proprietor of any mortgage owned on a joint account in
equity, the commissioner, on the application of the widow, husband, or
person entitled, and proof to his satisfaction of such events as afore-
said, may direct the registrar to register such applicant as the pro-
prietor thereof; and she or he shall, upon being registered in the man-
ner herein prescribed for the registration of a like estate or interest,
become the transferee of such land, lease, mortgage or charge, and be
deemed the proprietor thereof, but as regards any tenancy by the cur-
tesy for the lifetime only of such husband.

269. Without lessening or prejudicing any of the other rights,
powers, and remedies hereby given and conferred, every proprietor, and
every transferee when registered, of any land, lease, mortgage or charge
shall, whilst continuing so registered, have the same estates, rights,
powers and remedies, and be subject to the same engagements, obli-
gations and liabilities, and may sue and be sued in his own name at
law and in equity in respect thereof or thereupon, in like manner as if
he had been the original proprietor of the land by or with whom the
engagement, obligation, or liability sued upon was entered into or in-
curred, or the original lessee, mortgagee or annuitant.

270. The proprietor of any land, or of any lease, mortgage or
charge shall, on the application of any beneficiary or person interested
therein, be bound to allow his name to be used by such beneficiary or
person in any action, suit, or proceeding which it is necessary or proper
to bring or institute in the name of such proprietor concerning such
land, lease, mortgage or charge, or for the protection or benefit of the
title vested in such proprietor, or of the interest of any such beneficiary
or person; but nevertheless such proprietor shall in any such case be
entitled to be indemnified, in like 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 pro-
ceeding by his cestui que trust.

271. Upon an application to bring land under this Act, or to
amend a certificate, if it is proved to the satisfaction of the com-
missioner that any land constituting a private road, street or way, or

VICTORIA. 461

a portion thereof respectively, or subject to an easement of right of
way, has been exclusively, continuously, and adversely occupied by the
applicant, or by him and those through whom he claims, for a period
of not less than thirty years, the commissioner may notwithstanding
section 73 at his discretion issue a certificate for the fee simple of
such land, without notifying such road rights or easement of right of
way as an incumbrance, and thereafter the same shall not be preserved
by section 72.

£272, 273: V. 1890. ss. 233, 234, Aust. Torr. Syst. 573.]
275. Upon the insolvency of the proprietor of any land, lease, mort-
be deemed to have affected the right of any person to obtain the reg-
istration of any dealing under this Act, or shall deprive or be deemed
to have deprived any person dealing under this Act of the benefit of
section 179 or of any other section.

275. Upon the insolvency of the proprietor of any land, lease, mort-
gage or charge, or upon any insolvent before obtaining his certificate
of discharge becoming proprietor of any land, lease, 'mortgage or
charge, his assignee or trustee shall be entitled to be registered as pro-
prietor in respect of the same; and the registrar, upon the receipt of
an office copy of the appointment of such assignee or trustee, accom-
panied by an application in writing under his hand to be so registered
in respect of any land, lease, mortgage, or charge of such insolvent
therein described, or of any estate or interest to which he was before
the sequestration of his estate or after sequestration and before obtain-
ing his certificate of discharge became entitled, or able to transfer or
dispose of under any power of appointment or disposition which he
might legally execute for his own benefit, shall enter in the register
book upon the folium constituted by the grant or certificate of title of
such land, or on the lease, mortgage or charge, a memorandum notify-
ing the appointment of such assignee or trustee; and upon such entry
being made, such assignee or trustee shall become the transferee, and
be deemed to be the proprietor of such land, lease, mortgage or charge,
estate or interest, and shall hold the same subject to the equities upon
and subject to which the insolvent held the same, but for the purpose
of any dealing therewith under the provisions of this Act such assignee
or trustee shall be deemed to be the absolute proprietor thereof.

276. Until such application is made as aforesaid, and subject to
the operation of any caveat which is lodged by such assignee, dealings
by an insolvent proprietor with land under the operation of this Act
may be registered, and thereupon shall not by the order of sequestra-
tion be affected either at law or in equity.

277. Subject to any express provisions to the contrary, an estate
tail under this Act shall have the same incidents as a similar estate
under the general law, and the proprietor of such an estate shall have
the same power to bar the estate tail and create an estate in fee simple
absolute, as against all persons whose estates are to take effect after
the determination or in defeasance of the estate tail, as is possessed by
the owner of a corresponding estate tail in land not under the Act by
virtue of division I. of part V. of the Real Property Act 1915; but no
acknowledgment as therein provided shall be necessary for dealing
with an estate tail under this Act.

278. On any sale of land under the operation of this Act by public
auction or private contract, the conditions set out in the table marked

462 APPENDIX OF STATUTES.

A in the twenty-fifth schedule may be adopted, by inserting the words
" The conditions in table A of the Transfer of Land Act 1915 shall
apply to this contract," and when so adopted the said conditions shall
be construed as part of the contract, subject to any express modification
or exclusion of any of them which may be contained in the contract.

279. The forms contained in the several schedules, and the forms
for the time being in force under this Act, may be modified of altered
in expression to suit the circumstances of every case; and any varia-
tion from such forms respectively in any respect, not being matter of
substance, shall not affect their validity or regularity.

280. Any person may, on payment of the fee for the time being
payable in that behalf, inspect the register book during the hours and
upon the days of business. The registrar, on payment of the fee for the
time being payable for a certified copy, shall furnish' to any person
applying for the same a certified copy of any grant, certificate of title,
caveat, or registered instrument affecting land under the operation of
this Act; and every such certified copy signed by him or by any assist-
ant registrar, and authenticated by the seal of the office of titles, shall
be received in evidence in any court of justice, or before any person
having by law or by consent of parties authority to receive evidence,
as prima facie proof of the original grant, certificate, caveat or instru-
ment, and of all the matters contained or recited in or endorsed
thereon respectively.

281. (1) The Governor in Council may make regulations for all
or any of the following purposes, so far as such regulations are not
inconsistent with the provisions of this Act: —

(a) For prescribing the place or places for, and the mode,
duration, and responsibility of the custody of, all or any
undelivered Crown grants issued under the general law
prior to the commencement of the Real Property Act
number 140 of 1862, on which the fees to the Crown
chargeable on delivery have not been paid; and
(6) For regulating the payment, collection, receipt of fees,
contributions to the assurance fund under Act No. 140
being the Real Property Act of 1862, or under Act No.
301 being the Transfer of Land Statute of 1866, and other
charges (if any) chargeable in respect of Crown grants
issued before the date of the commencement of the said
Real Property Act, or on unregistered Crown grants
issued since that date, but prior to the first day of March,
1867, which have remained in the custody of the Crown
unregistered by reason of the said charges not having
been paid.
(2) All such regulations, when made by the Governor in Council,
shall be published in the Government Gazette, and when so published
shall have the force of law, and shall be judicially noticed, and shall be
laid before both Houses of Parliament within fourteen days after the
same shall have been made if Parliament be then sitting, and if not
then within ten days after the next meeting of Parliament, and a copy
of any proposed regulations shall be posted to each member of Parlia-
ment at least twenty-one days before such regulations are approved by
the Governor in Council.

VICTORIA.

463

SCHEDULES.

FIRST SCHEDULE.

Xumber of Act

Title of Act.

Extent of Repeal.

1149

Transfer of Land Act 1890...

So much as is not al-
ready repealed.

1174

Real Property Act 1890 (No. 2)

So much as is not other-
wise repealed.

1875

Transfer of Land Act 1903

The whole.

1931

Transfer of Land Act 1904

So much as is not al-
ready repealed.

2046

Crown Grants Act 1906

The whole.

2086

Real Property Act 1907

Sections 6 and 7.

2094

Transfer of Land Act 1907

The whole.

2529 •

Transfer of Land Act 1914

The whole.

2552

Transfer of Land Act 1890

Amendment Act 1914 (No. 2) . .

So much as is not other-
wise repealed.

[Of the remaining schedules only sch. 6 and sch. 25 (in part) are
here printed; for other schedules not here printed, see V. 1890, Aust.
Torr. Syst. 576 et seq. Sch. 6 is not contained in V. 1890. Sch. 25 has
been added to and amended, and now differs slightly from V. 1890,
sch. 25J

SIXTH SCHEDULE.

Victoria,

Application for Vesting Order.

To the Commissioner of Titles —

I {insert name address and occupation] hereby apply for a vesting
order vesting in me all that piece of land being [describe land by ref-
erence to allotment and section giving volume and folium of existing
certificate of title or Crown grant] which land is delineated and col-
oured red upon the plan dated by A.B. a surveyor licensed
under the Land Surveyors Act 1915 numbered in the Schedule
hereto for an estate in fee simple in possession free from incum-
brances (other than any special reservation exception or condition in
the Crown grant) and I declare —

(1) Set forth particulars of the possession on which the claim is
based —

(a) The date on and circumstances in which the possession

commenced.
(6) The name of the person by whom the possession was
commenced.

(d) The subsequent history and nature of the possession tip to
the time of lodging the application.

464: APPENDIX OF STATUTES.

(2) That there are no documents or evidences of title affecting
such land in my possession or under my control other than those in-
cluded in the Schedule hereto.

(3) That there are no mortgages or incumbrances registered on
the above-mentioned title save and except the following: — [Set out
short particulars and state whether these mortgages or incumbrances
have been extinguished or ceased to affect the land and, if so, how.]

(4) That save as aforesaid I am not aware of any mortgage or
encumbrance affecting the said land or that any person other than
myself has any estate or interest therein [if there be any add] save
and except [and set out same].

(5) That the names and addresses so far as known to me of the
occupants of all lands contiguous to the said land are as follow: —

(6) That the names and addresses so far as known to me of the
owners of all lands contiguous to the said land are as follow: —

(7) That the present value of the land including all improvements
thereon is £ and no more.

Dated this day of One thousand nine hundred and

Made and signed in the presence of

[The applicant, if within Victoria, must sign before the registrar
or an assistant-registrar or a notary public, a justice of the peace,
commissioner of the Supreme Court of Victoria for taking affidavits,
commissioner for talcing declarations and affidavits, or perpetual com-
missioner; if without the limits of Victoria, before a notary public or
a commissioner of the Supreme Court of Victoria for taking affidavits,
or in the manner provided by the " Evidence Act 1915 " for taking
affidavits out of Victoria.]

TWENTY-FIFTH SCHEDULE [Am. 1916, s. 29 J.

Table A.

General Conditions of Sale.

1. The purchaser shall complete his purchase upon the day that
the last of the acceptances or notes for purchase money become due,
but he shall be entitled to the possession of the lot or lots purchased
by him, or to the receipt of the rents and profits thereof, upon his ac-
ceptance of the title to such lot or lots; and if, from any cause what-
soever, his purchase shall not be completed at the time above specified,
the purchaser shall pay interest on such of his acceptances or notes as
shall become overdue at the rate of Eight pounds per cent, per annum
to the time of completion, without prejudice however to the vendor's
right under the sixth condition. As from the day of acceptance of
title, the purchaser shall discharge outgoings, apportionments if neces-
sary being made.

[Conditions 2-9: V. 1890, sch. 25, conditions 2-9, Aust. Torr. Syst.
591-593.]

10. If the purchaser shall not give any acceptances or notes but
shall agree to pay the balance of purchase money by. an instalment or
instalments the words " instalment or instalments of purchase money "
shall be read in these conditions instead of the words " acceptances or
notes."

WESTERN AUSTRALIA. 455

WESTERN AUSTRALIA.

The .principal Western Australia statute (1893, printed in Aust.
Torr. Syst. 605 et seq.) has been further amended by Acts of 1909, 1911,
and 1916. The Act of 1916 is identical with a Victorian statute — Execu-
tion of Instruments Act 1915 — dealing with the execution of instru-
ments by persons on war service, referred to ante, p. 445. The Acts of
1909 and 1911 are here printed; five sections of the 1893 Act (ss. 4, 78,
90, 105, 133) are directly amended or replaced by other enactments,
and the amending Acts otherwise relate chiefly to Crown leases.

TRANSFER OF LAND ACT AMENDMENT ACT 1909

(No. 54 of 1909).

An Act to further amend the Transfer of Land Act 1893.

[Assented to 21st December, 1909.]
BE it enacted [&c.J

1. This Act may be cited as the Transfer of Land Act Amendment
Act 1909, and shall be read as one with the Transfer of Land Act 1893,
hereinafter referred to as the principal Act, and shall come into opera-
tion on a day to be fixed by proclamation.

2. Section 4 of the principal Act is amended as follows: —

(a) By adding to the word " fee," in line twenty-three, the
words " and shall also include Crown leases."

(ft) By adding the following sub-section: — "Crown lease " shall
mean every lease or other holding of Crown lands under
the Land Act 1898, or any regulation thereby repealed,
granted for or extending over a period of five years or
more.

3. (1) Every Crown lease issued after the commencement of this
Act shall be issued in duplicate under seal, and be forwarded by the
minister for lands direct to the registrar, for registration under sections
53 and 54 of the principal Act.

(2) The registrar shall

(a) Enter in a journal particulars of the lease, and mark on

each part thereof the number appearing in such journal.

and sign his name to each part;
(6) Retain one part (to be called the original), and deliver

the other part (to be called the duplicate) to the lessee

or, in the case of a mortgage, to the mortgagee; and
(c) Register the original in the register of leases.

4. (1) A Crown lease issued before the commencement of this Act
may be made subject to and registered under the operation of the
principal Act, by an application in the form in the schedule hereto.

(2) Such application may be made by the lessee or any person
claiming through him, or by any mortgagee, and shall be accompanied
by—

(a) The instrument of lease and certified copies of all existing
mortgages, sub-leases, and other dealings (if any) reg-
istered under the Land Act 1898; and

K.T.L. — 30

466 APPENDIX OF STATUTES.

(b) A certified copy of the lease to be supplied by the depart-
ment of lands and surveys to the applicant for such pur-
pose; and

(d) In applications by mortgagees, the written consent of the
lessee.

(3) The registrar shall refer such application to the commissioner
for his direction, 'and if the commissioner is satisfied as to the title of
the applicant he shall direct the registrar to bring the land under the
Act, either forthwith or after advertisement.

(4) When the registrar is satisfied that the preceding provisions
of this section have been complied with, he shall —

(a) Enter in a journal particulars of the lease, and of all ex-
isting mortgages and sub-leases, and mark on the lease and
the certified copy the number appearing in the journal, and
endorse on the lease and certified copy all existing mort-
gages and sub-leases, and sign his name to the lease and
certified copy and such endorsements; and

(o) Retain and register in the register of leases the original
lease instrument, and deliver the certified copy to the
lessee, or in the case of a mortgage, to the mortgagee.

(5) Any mortgage or sub-lease of a Crown lease made prior to the
lease being registered under this section, and which is still operative —

(a) Shall be recorded on the original instrument of lease, and
on the certified copy; and

(6) When so recorded, shall be read as if it contained all the
covenants, powers, and conditions which by the principal
Act are implied in mortgages or sub-leases, or conferred
upon the parties thereto, except so far as such mort-
gage or sub-lease contains express provisions to the con-
trary.

5. When a Crown lease is signed by the registrar, it shall be
deemed to be registered and, subject to this Act, may be transferred,
sub-leased, and dealt with in like manner as if it had been granted by
a registered proprietor and registered in the ordinary way, and the
several provisions of the principal Act with respect to freehold land
shall apply to such Crown lease, and every mortgage or sub-lease
thereof, whether granted before or after the commencement of this Act,
with such variations only as the difference in the nature of such pro-
perty requires, or as may be necessary to render such provisions ap-
plicable to leaseholds for years.

6. (1) No transfer, sub-lease, or mortgage of a Crown lease or of a
sub-lease thereof, shall be registered until the written consent thereto
of the minister of lands, or of an officer of the department of lands and
surveys thereto authorized by the minister for lands, has been filed
with the registrar.

(2) Nothing in this Act or the principal Act contained shall affect
the provisions of the Land Act 1898, whereby a transferee or sub-lessee
is required to be a person who is not disqualified under that Act to be a
lessee of the land intended to be transferred or sub-let.

7. No order of foreclosure shall be made in respect of a mortgage
of a Crown lease without the consent in writing of the minister for
lands.

WESTERX AUSTRALIA. 467

8. (1) The registrar, upon receipt of written notice from the
minister for lands that any Crown lease has been forfeited or deter-
mined, in whole or in part, shall make an entry to that effect on the
original lease, and call in the lessee's part thereof.

(2) If there is a mortgage or sub-lease registered against the
lease so forfeited or determined, the registrar shall post to the mort-
gagee or sub-lessee, at the address appearing in the register, thirty
days' notice of his intention to make such entry within which time the
mortgagee or sub-lessee may carry out the conditions of the lease and
apply to the minister for lands to waive the forfeiture.

(3) The minister for lands may, by notice to the registrar, allow a
longer period than thirty days.

(4) Unless the forfeiture or determination is cancelled by the
Governor in Council under the Land Act 1898, or is waived by the
minister for lands under sub-section 2 of this section, then at the ex-
piration of such days, or such longer period as the minister for lands
shall allow, such forfeiture and determination shall become absolute.

9. (1) Every person who for the time being is the holder of a
Crown lease shall, for all purposes in connexion with transferring, sub-
letting, mortgaging, or otherwise dealing with the lease, have the same
capacity as if he were and shall be deemed of full age.

(2) The provisions of this section shall be deemed to have applied
to all holdings under the Land Act 1898, from the first day of January,
1899.

(3) The terms and conditions of any such transfer, sub-lease, mort-
gage, or other dealing may be renewed and altered upon application in
chambers to a judge of the Supreme Court.

10. (1) Sections 92, 93, and 94 of the principal Act shall not apply
to Crown leases.

(2) Sections 80, 122, and 138 to 144 (a) inclusive of the Land Act
1898, and sections 74 to 83 inclusive of the Land Act Amendment Act
1906, shall not apply to Crown leases registered under this Act, and
section 15 of the Land Act Amendment Act 1900 shall, in reference to
Crown leases registered unaer tnis Act, be read subject to section [8]
of this Act.

11. Section 78 of the principal Act is amended, by inserting after
the word " sheriff " the words " or the magistrate of a local court."

12. Section 90 of the principal Act is amended, by inserting after
the word " sheriff " the words " or magistrate of a local court," and by
inserting after the words " fi fa." the words " or warrant of execution,"
and by striking out the words " three months " and inserting " four
months " in lieu thereof.

13. Section 105 of the principal Act is repealed, and the following
section shall be read in lieu thereof: —

105. (1) The proprietor of any land under the operation of
this Act may mortgage the same, or may charge the same with the
payment of an annuity.

(2) A mortgage or charge may be in the form in the four-
teenth and fifteenth schedules^ respectively to this Act.

(3) If a mortgage includes freehold land and a Crown lease,
the registrar may require a duplicate or certified copy of the mort-
gage to be lodged for registration.

468 APPENDIX OF STATUTES.

(4) A mortgage, charge, or lease may be extended, by an in-
strument of extension executed by all the parties to such mortgage,
charge, or lease, and stating the term of the extension, and the
terms and conditions on which the extension is made.

(5) On production to the registrar of such instrument and of
the duplicate mortgage, charge, or lease, he shall retain such in-
strument, and enter a memorandum of such extension on the origi-
nal instrument of mortgage, charge or lease filed in the office
of titles, and also on the certificate of title or, in the case of a
Crown lease, on the register of leases.

(6) No dealing registered subsequent to any mortgage, charge,
or lease shall be affected by the extension of any such mortgage,
charge or lease, unless the proprietor in whose favour such dealing
was registered shall have consented in writing to such extension.

14. Section 133 of the principal Act is amended by adding a para-
graph as follows: " Every such writ shall cease to bind, charge or affect
any land, lease, mortgage, or charge specified as aforesaid, unless a
transfer upon a sale under such writ shall be left for entry upon the
register within four months from the day on which the copy was
served."

15. Any certificate of title may contain a statement therein, or
entry thereon, to the effect that the land therein described has appurte-
nant thereto any easement, or that the person therein named is entitled
to any easement in gross, or that the land therein described is subject
to any right-of-way or other easement.

16. Every such statement or entry shall set forth a true and ac-
curate description of the easement, or if the instrument creating the
same is deposited in the lands titles office, shall refer to such instru-
ment, and the certificate of title shall contain a plan of the land over
which such easement extends, or if a plan showing the extent of such
easement is deposited in the lands titles office, shall refer to such plan.

17. The assurance fund shall not be liable for compensation for
loss, damage, or deprivation occasioned

(a) by any breach by a registered proprietor of any trust,
whether express, implied or constructive, or by the im-
proper exercise of any power of sale expressed or implied
in any mortgage or incumbrance, or

(6) to any person claiming under any unregistered instru-
ment, document or writing, or any equitable mortgage or
charge by deposit or otherwise without writing, or any
other interest not protected by caveat, by or in consequence
of the issue to any registered proprietor of a special certi-
ficate.

18. The forms in the seventeenth schedule of the principal Act
shall be read with reference to any transfer pursuant to a sale under a
warrant of execution issued under the Local Courts Act 1904, as if the
words "warrant of execution issued out of a local court " were inserted
in place of " writ of fieri facias issued out of the Supreme Court," and
as if the words " magistrate of the local court " were inserted in place
of the word " sheriff."

WESTERN AUSTRALIA. 4^9

THE SCHEDULE.

Application to register a Crown Lease under the Transfer of Land Act

1893.

To the Registrar of Titles.

I [insert name, address, and occupation] hereby apply to have the
land hereinafter described brought under the operation of the Transfer
of Land Act 1893. And I declare —

1. That I am the lessee [or mortgagee or as the case may be] of
a Crown lease of all that

2. That there are no documents or evidences of title affecting such
land in my possession or under my control other than those included
in the schedule hereto.

3. That I am not aware of any mortgage or incumbrance or sub-
lease affecting the said land or that any other person has any estate or
interest therein at law or in equity [if there are any add other than as
follows and set the same forth.]

Dated this day , One thousand nine hundred

and
Made and subscribed at

, in the presence of

[The applicant if unthin Western Australia to sign before the reg-
istrar or an assistant registrar, or a notary public, justice of the peace,
or commissioner for taking affidavits; if abroad before a notary public
or a commissioner for taking affidavits in the Supreme Court of Western
Australia.]

Schedule of Documents referred to.

TRANSFER OF LAND ACT AMENDMENT ACT 1911

(No. 26 of 1911).

An Act to further amend the Transfer of Land Act 1893.

[Assented to 16th February, 1911.]
BE it enacted [&c.J

1. This Act may be cited as the Transfer of Land Act Amendment
\ct 1911, and shall be read as one with the Transfer of Land Act 1893.

2. (1) Where the holder of a Crown lease has executed a mort-
gage thereof, either before or after the commencement of this Act, and
the holder for the time being under the provisions of such Crown
lease becomes entitled to a Crown grant in fee simple of the land com-
prised in and demised by such lease, the mortgage shall, by the opera-
tion of this Act, be transferred and apply to such Crown grant, and to
the land thereby granted, in all respects as if such Crown grant had
been referred to in the mortgage, and a memorandum of such mortgage
shall be endorsed by the registrar of titles as an incumbrance on such

4T0 APPENDIX OF STATUTES.

Crown grant, and on the folium of the register book, on his registering
such grant, and a memorandum stating the fact of such transfer shall
also be made by the registrar of titles on the original registered instru-
ment of mortgage and the duplicate thereof.

(2) This section shall be deemed to have been in operation from

the commencement of the Transfer of Land Act Amendment Act 1909.

3. Section 10 of the Transfer of Land Act Amendment Act 19Q9 is

imended, by omitting the word " nine," in the last line, and inserting

' eight " in place thereof.

PAPUA. 471

PAPUA.

REAL PROPERTY ORDINANCE 1913
(No. 13 of 1913).

Note. — This statute is chiefly a consolidation adapted from the
Queensland statutes, omitting the enactments relating to initial appli-
cations and registration abstracts, and inserting a few sections not in
Queensland statutes, but for the most part taken from other Australian
statutes. Only those sections are here printed or referred to, with
respect to which the Papua statute differs materially, from the Queens-
land statutes.

AN ORDINANCE.

To Consolidate and Amend the Laws relating to the Transfer and
Incumbrance of Freehold and other Interests in Land in the
Territory of Papua.

U4th August, 1913.]

Be it enacted by the Lieutenant-Governor of the Territory of
Papua, with the advice and consent of the Legislative Council thereof,
as follows: —

3. The following enactments are repealed: — The Real Property
Act of 1861, 25 Vic. No. 14 (Queensland adopted); The Real Property
Act of 1877. 41 Vic. No. 18 (Queensland adopted); The Real Property
Ordinance of 1889. No. 11 of 1889; The Registrar of Titles Ordinance
of 1903, No. 5 of 1903.

4. (1) All lands, estates, and interests which, at the commence-
ment of this Ordinance, are subject to the provisions of the enactments
so repealed shall be subject to the provisions of this Ordinance.

(2) All rules, forms, and orders made under the provisions of any
Ordinance hereby repealed, and in force at the commencement of this
Ordinance, shall be deemed to have been made under the correspond-
ing provisions of this Ordinance.

(3) All applications duly made, registrations duly effected, pro-
ceedings duly commenced or had. and acts or things duly done under
the enactments hereby repealed, shall be deemed to have been duly
made, effected, commenced, had. or done respectively under the cor-
responding provisions of this Ordinance, but at the date on which the
same were in fact made, effected, commenced, had or done.

(4) All laws, statutes, Acts, Ordinances, rules, regulations, and
practice whatsoever relating to freehold and other interests in land,
and operative on the sixteenth day of November, 1889, are, so far as
inconsistent with the provisions of this Ordinance, hereby repealed so
far as regards their application to land under the provisions of this
Ordinance.

(5) All persons appointed under or by virtue of any enactment
hereby repealed, and holding office at the commencement of this
Ordinance, shall remain in office as if this Ordinance had been in force
at the time they were appointed and they had been appointed and had

472 APPENDIX OF STATUTES.

taken, the requisite oath of office (if any) hereunder, and this Ordin-
ance shall apply to them accordingly.

(6) Nothing in this Ordinance contained shall be deemed to affect
or control the provisions of the Married Women's Property Ordinance
1912.

Part IV. Crown Leases.

32. (1) Leases granted under the Land Ordinance 1911 shall,
when executed, be deemed to be Crown leases, and shall be in the form
provided for leases under this Ordinance, or to the like effect, which
may be altered from time to time with the approval of the Lieutenant-
Governor, and shall be in duplicate, and, after being duly executed,
shall be forwarded to the registrar, who shall bind one copy in a book,
to be called the " register of Crown leases," and shall forward the other
to the person entitled thereto.

(2) The registrar shall mark on each part of every Crown lease,
a copy whereof shall be bound in the register of Crown leases, the
volume and folio as appearing in the register of Crown leases; and
such Crown lease shall thereupon be deemed subject to the provisions
of and to be registered under this Ordinance, and may be transferred,
mortgaged, and dealt with for all the purposes and in like manner (but
subject always to the provisions of the Land Ordinance 1911) as if it
had been granted by a registered proprietor of land under this
Ordinance and registered in the register book in the ordinary way,
excepting only that every transfer of a Crown lease shall be made by
separate instrument and not by endorsement, and that any entries
which ordinarily would require to be made in the register book shall
be made in the register of Crown leases and on the folio constituted by
the Crown lease.

33. The registrar; upon notification appearing in the Gazette
that a Crown lease has been declared forfeited by the Lieutenant-
Governor, shall make an entry to that effect in the register of Crown
leases, and such forfeiture shall thereupon have effect.

[40: S. A. 1886, s. Ill, Aust. Torr. Syst. 359.
42: S. A. 1886, s. 119, Aust. Torr. Syst. 360.
43. N. :S. W. 1900, s. 54, Aust. Torr. Syst. 111.
45: S. A. 1886, s. 126, Aust. Torr. Syst. 362.
53: Q. 1861, s. 61, Aust. Torr. Syst. 195, adding:

(3) Any amount paid by such occupier or tenant to the mortgagee
or incumbrancee, or realized by distress as aforesaid, shall be
deemed pro tanto a satisfaction of the said rent.

96: S. A. 1886, s. 190, Aust. Torr. Syst. 378. J

98. (1) An executor or administrator, with or without the will
annexed, of a deceased registered proprietor, or the curator of intestate
estates where the Court shall make an order authorizing the curator
to administer the estate of a deceased registered proprietor, may apply
in writing to the registrar to be registered as proprietor of any estate
of freehold in the land of any such deceased registered proprietor.

(2) Such applicant shall deposit with the registrar the certificate
of the death, .together with the probate of the will of the deceased

PAPUA. 473

proprietor, or letters of administration of his estate, or order of the
Court authorizing the curator of intestate estates to administer as afore-
said, or an office copy of the probate, letters of administration, or order,
as the case may be.

(3) The registrar may, if he thinks fit, dispense with such certifi-
cate of death on production of such other evidence of death as appears
to him sufficient.

(4) Such application shall state the estate or interest in such land
claimed by the applicant, and the nature of every estate or interest
held by other persons at law or in equity in such land within the appli-
cant's knowledge, and that he verily believes himself to be entitled to
the estate or interest in such land in respect of which he applies to
be registered; and the statement made in such application shall be
verified by the statutory declaration of such applicant.

(5) The applicant shall produce the existing grant, or certificate
or other instrument of title of the land in respect to which he applies
to be registered, prior to his being entered in the register book as
hereinafter mentioned, unless the production of such grant, or certifi-
cate, or other instrument of title be duly dispensed witn.

[99, 100: N. S. W. 1900, ss. 95 (omitting sub. s. 6), 96, Aust. Torr.
Syst. 130, 131.

101-103: S. A. 1886, ss. 181-183, substituting "curator of intestate
estates " for " public trustee," Aust. Torr. Syst. 376.]

126 A [1914, s. 2]. (1) When any lease has been granted by the
Lieutenant-Governor under the provisions of any Ordinance relating
to land now at or any time heretofore in force in the Territory, and
has been executed by the Lieutenant-Governor but has not been exe-
cuted by the lessee to whom the same was granted, the registrar may
upon the application of the commissioner of lands register the lease,
either forthwith or at the expiration of some defined period of time,
and may cause such advertisements to be published in the Gazette as
he may deem necessary.

(2) Upon such registration the lease shall for all purposes be
deemed to have been duly executed by the lessee.

(3) The registrar shall endorse a memorial on the lease, to the
effect that the lease was registered though unexecuted by the lessee in
pursuance of this section.

[126B [1914, s. 2]: S. A. 1886, s. 247, Aust. Torr. Syst. 396. J

474 APPENDIX OF STATUTES.

NEW ZEALAND.

LAND TRANSFER ACT 1915
(1915 No. 35).

[1st October, 1915.]

Note. — The statutes (1885, &c.) printed in Aust. Torr. Syst. 261
et seq., were in 1908 repealed and replaced by a consolidating statute —
the Land Transfer Act 1908. This and an amending statute of 1913
have now in turn been repealed and replaced by what is in effect an-
other consolidating statute. The method of legislation has been
peculiar; a "compiling" Act has been passed, with the "compiled"
Act as an appendix. Both Acts have the same full title, and their inter-
relation can only be understood by reading them together. The text
of the " compiling " Act is therefore printed in full, Appendix B — the
" compiled " Act and working registration statute — being printed as
to the greater part only, and treated on the same plan as the Vic-
torian statute ante, p. 402.

1915, No. 35.

An Act compiling the Land Transfer Act 1908, and its Amendments.

[1st October, 1915.]

WHEREAS by resolution, passed by both Houses of the General
Assembly on the fourteenth day of July, 1915, it was resolved that the
Land Transfer Act 1908, and its amendments, should be compiled
under the provisions of the Statutes Compilation Act 1908, and that
effect be given to such resolution and the compilation be enacted dur-
ing the present session of Parliament: And whereas the compiled Act
set forth in Appendix B hereto has been certified under the hand of
the solicitor-general as being a true and correct compilation of the
enactments specified in Appendix A hereto: Be it therefore enacted
by the General Assembly of New Zealand in Parliament assembled, and
by the authority of the same, as follows: —

l.This Act may be cited as the Land Transfer Acts Compilation
Act 1915.

2. The enactments specified in Appendix A hereto are hereby
repealed, and in lieu thereof the compiled Act set forth in Appendix B
hereto is hereby enacted, under the title of the Land Transfer Act 1915.

3. In the construction of the compiled Act the Acts hereby re-
pealed shall be deemed to have been repealed by the compiled Act, and
such compiled Act shall, from the passing of this Act, and until other
provision is made, unless a contrary intention appears, apply to the
persons, things, and circumstances appointed or created by and exist-
ing or continuing under the Acts hereby repealed, as if the same had
been appointed or created or were existing under the compiled Act:
provided that in the case of any mortgage executed prior to the first
day of January, 1903 (being the date of the coming into operation of
the Land Transfer Amendment Act 1902), the provisions of the Acts in
force on the commencement of the Land Transfer Act 1908, in respect

NEW ZEALAND. 475

to that mortgage shall continue to apply to such mortgage, in so far as
those provisions conflict with the provisions of the compiled Act:
provided also that in the case of any sub-mortgage executed prior to
the first day of March, 1914 (being the date of the coming into opera-
tion of the Land Transfer Amendment Act 1913), the provisions of the
Acts in force when that sub-mortgage was registered shall continue to
apply to such sub-mortgage, in so far as those provisions conflict with
the provisions of the compiled Act.

APPENDIX A.
Acts Repealed.

1908, No. 99.— The Land Transfer Act 1908.

1913. No. 17. — The Land Transfer Amendment Act 1913.

APPENDIX B.
Land Transfer.

An Act compiling the Land Transfer Act 1008. and its Amendments.

Be it exacted by the General Assembly of New Zealand in
Parliament assembled, and by the authority of the same, as follows: —

1. (1) This Act may be cited as the Land Transfer Act 1915.

(2) The Property Law Act 1908 shall, as regards land under this
Act, be read and construed so as not to conflict with the provisions of
this Act.

2. In this Act. and in all instruments purporting to be made and
executed under this Act, if not inconsistent with the context. —

" Bankruptcy " means the vesting in any person or persons of
any estate or interest of a debtor for the benefit of credi-
tors generally, by deed of arrangement or otherwise, under
authority of any court of competent jurisdiction:

" Crown grant '' means the grant of any land by the Crown,
and includes certificates of title issued in lieu of grant:

" Dealing " means and includes every transfer, transmission,
mortgage, lease, or incumbrance of any estate or interest
under this Act:

"District" means a land registration district under this Act:

" Estate or interest *' means and includes every estate in land,
also any mortgage or charge on land under this Act:

" Former Land Transfer Act " means the Land Transfer Act
1908. and the Land Transfer Act 1885, and all amendments
of either of those Acts, and includes every Act repealed by
those Acts:

" Endorsement." in addition to its ordinary meaning, includes
anything written upon or at the foot of any document for
giving effect to any of the purposes of this Act:

476 APPENDIX OF STATUTES.

" Instrument " means and includes any printed or written docu-
ment, map, or plan relating to the transfer of or other
dealing with land, or evidencing title thereto:

" Land " extends to and includes messuages, tenements, and
hereditaments, corporeal and incorporeal, of every kind
and description, and every estate or interest therein, to-
gether with all paths, passages, ways, waters, water-
courses, liberties, easements, and privileges thereunto
appertaining, plantations, gardens, mines, minerals, and
quarries, and all trees and timber thereon or thereunder
lying or being, unless specially excepted:

"Land Revenue Receiver's receipt" includes any document,
signed by competent authority, evidencing a contract for
alienation of land by the Crown in fee simple:

" Mortgage " means and includes any charge on land created
under the provisions of this Act for securing —

(a) The repayment of a loan, or satisfaction of an
existing debt;

(6) The repayment of future advances, or payment or
satisfaction of any future or unascertained debt or lia-
bility, contingent or otherwise;

(c) The payment to the holders for the time being of
any bonds, debentures, promissory notes, or other securi-
ties, negotiable or otherwise, made or issued by the mort-
gagor before or after the creation of such charge;

(d) The payment to any person or persons by yearly
or periodical payments or otherwise of any annuity, rent-
charge, or sum of money other than a debt:

"Mortgagee" means the proprietor of a mortgage:

" Mortgagor " means the proprietor of any estate or interest

charged with a mortgage:
" Proprietor " means any person seised or possessed of any

estate or interest in land, at law or in equity, in possession

or expectancy:
" Registrar " and " Examiner " mean respectively the district

land registrar and examiner of titles of the district within

which any land to be dealt with or affected is situated:
" Registrar-General " means the registrar-general of land

appointed under this Act:
" Surveyor-Oeneral " means the person holding office with that

title under the Land Act 1908, or otherwise: •

" The Land Transfer Acts " means this Act, and includes any

former Land Transfer Act:
" Transmission " means the acquirement of title to an estate

or interest consequent on the death or bankruptcy of a

registered proprietor, or as his executor or administrator,

or as trustee under a will or settlement, or by virtue of

appointment or succession to any office.

Districts, Officers, &c.
[3-9: N. Z. 1885, ss. 3-9, Aust. Torr. Syst. 263,264.]

NEW ZEALAND. 477

Land subject to provisions of this Act.

.10. The following land shall be subject to the provisions of this
Act:—

(a) All land which has already in any manner become subject

to the provisions of any former Land Transfer Act:
(6) All land hereafter alienated or contracted to be alienated
from the Crown in fee:

(c) All land in respect of which any order is hereafter made,
under the provisions of any Native Land Act in force for
the time being, which has the effect of vesting such land
in any person in freehold tenure:

(d) All land which hereafter becomes vested in any person
for an estate in fee simple in possession by virtue of any
Act of the General Assembly.

11. Land over which the native title has been extinguished since
the constitution of the district within which the same is situate, but
prior to the thirty-first day of August. 1874. shall come under the pro-
visions of this Act upon the registration of a Crown grant, or certifi-
cate of title in lieu of grant.

Title in substitution for Crown grant.

12. No Crown grant shall be issued for any land subject to the
provisions hereof; but in lieu of such grant the Governor shall, by
warrant under his hand, direct the registrar to issue a certificate of
title for such land in the form in the first schedule hereto; and every
such certificate, when signed and registered, shall have the force and
effect of a Crown grant.

13. Every such warrant —

(a) Shall specify the name and description of the person or
persons entitled to such grant, and, if more than one.
whether as joint tenants or tenants in common, and the
date whereon the right to such grant accrued, together
with a description of the land sufficient to identify the
same the correctness of which shall be certified by the
surveyor-general, or by some person appointed by him for
the purpose; and whether such land is intended to be
held in trust as a public reserve or otherwise, or is sub-
ject to any road or other reservation or restriction; and

(&) Shall be filed by the registrar in his office for reference,
and shall be conclusive evidence to the registrar of the
matters hereby required to be therein stated.

14. If it appears on the provisional register that the estate of any
person named in any warrant as entitled to a Crown grant has become
vested in any other person, claiming through the person named in
the warrant, the registrar may issue a certificate of title direct to the
person appearing to be so entitled.

15. Every certificate of title to be issued as aforesaid shall be
made subject to all incumbrances, estates, and interests appearing on
the provisional register as affecting the land at the date of the issue
of such certificate.

16. No warrant shall be necessary for the issue of a certificate of
title to any person in whom any land has become and is, or hereafter

478 APPENDIX OF STATUTES.

becomes, vested for an estate in fee simple in possession by any Act
of the General Assembly, or by any proclamation or order in Council
under the express provisions of any such Act since the first day of
March,' 1871.

17. (1) The land comprised in any certificate of title issued, or
hereafter to be issued, in lieu of a Crown grant shall be deemed to
have been subject to the provisions of the Land Transfer Acts as from
the date fixed by the Governor's warrant as the date of acquisition of
title thereto; and such date shall, for all purposes whatsoever, be
deemed the antevesting date, in the same manner as if such antevesting
date had been inserted in a Crown grant of the said land.

(2) The reference fro such antevesting date, in any certificate of
title purporting to be issued in pursuance of such warrant, shall be
conclusive evidence of such date, and that the same was fixed by the
Governor's warrant, as in such certificate is set forth and stated.

(3) This section shall not be construed to validate or enable the
registration under the Land Transfer Acts of any instrument executed
prior to the sixteenth day of September, 1889 (being the date of the
coming into operation of the Land Transfer Act 1885 Amendment Act
1889), by any aboriginal native owner, so far as such instrument was
not valid or capable of registration prior to that date.

18. (1) The reservation in any such warrant (whether heretofore
or hereafter issued) of any right of road, or right to take or lay off
any road, shall, as from the date of such warrant, have the like effect
as if such reservation had been contained in a Crown grant on the like
date of the land the subject thereof.

(2) Such reservation, and all rights existing by virtue thereof,
shall be deemed sufficiently protected by the general reservation in
any certificate of title of the right of the Crown to take and lay off
roads under the provisions of any Act of the General Assembly, and no
certificate of title shall be impeached on the ground of uncertainty or
otherwise, on account of any such reservation therein contained.

Applications to bring land under Act.

19. Land which has not become subject to this Act in any manner
under the foregoing provisions may, if the same has been alienated
or contracted to be alienated from the Crown in fee, be brought under
the operation hereof, in manner hereinafter provided; but no applica-
tion shall be received to bring under this Act land for which no Crown
grant has been issued, until such application has been approved by the
surveyor-general, or by some person appointed by him for the purpose,
and has been assented to by the Governor.

20. (1) The registrar of each district shall receive applications
for the purpose aforesaid in the form A in the second schedule hereto,
if made by any of the following persons, that is to say: —

(a) By any person (claiming to be the person) in whom the
fee simple of the land is vested in possession, either at law
or in equity: provided that, wherever trustees other than
trustees of public reserves have no express power to sell
the land which they seek to bring under this Act, the
person claiming to be beneficially entitled to such land
shall concur in such application:

NEW ZEALAXD. 479

(6) By any person claiming a life estate in possession, not
being a lease for a life or lives: provided that all persons
claiming to be beneficially entitled in reversion or re-
mainder shall concur in such application:

(c) By any person having power legally or equitably to dis-
pose of the fee simple in possession, but if subject to the
consent of any other person, then with such consent:

(d) By any person or body corporate holding any land as a
public reserve, but in such case subject to the trusts affect-
ing such reserve:

(e) By the guardian of any infant, or the committee or guar-
dian of any lunatic or person of unsound mind, making
such application in the name of such infant, lunatic, or
person of unsound mind:

(/) By any agent holding a power of attorney authorizing the
sale of a freehold estate in any land of an absent pro-
prietor, and making such application in the name of such
proprietor, unless such power expressly prohibits his so
doing.
(2) But no application shall be received —

(g) From any person claiming to be entitled to an undivided
share of any land, unless the persons who appear to be
entitled to the other undivided shares of the said land join
in such application with a view to bringing the entirety
under this Act; nor
(h) From the mortgagor of any land, unless the mortgagee

consents to such application; nor
(i) From the mortgagee of any land, except in exercise of a
power of sale contained in the mortgage.
21. Every applicant shall, when making his application, surrender
to the registrar all instruments in his possession or under his control,
constituting or in any way affecting his title, and shall furnish a
schedule of such instruments, and also, if required, an abstract of his
title, and shall make and subscribe a declaration of the truth of the
statements in such application, and shall append to such application a
plan of the land applied for. showing the boundaries and relative posi-
tion thereof.

[22-26: N. Z. 1885, ss. 20-24, Aust. Torr. Syst, 267, 268.]

27. If, at the expiration of the time limited in respect of any
application as aforesaid, it appears to the registrar and examiner
that all necessary notices have been given, and that no caveat has been
lodged, and if no sufficient cause to the contrary otherwise appears,
the registrar shall proceed to bring the land described in such applica-
tion under this Act, by issuing to the applicant, or to such person as
he by writing under his hand directs, a certificate of title in the form B
aforesaid.

28. If however it appears to the registrar and examiner, at the
expiration of the time limited as aforesaid, that there has been a
failure in the service of any notice, and that such service is essential,
the registrar and examiner may either reject the application, or may
limit and appoint a further time within which caveat may be lodged
as aforesaid, and upon the expiration of such term, and upon proof

480 APPENDIX OF STATUTES.

of service of such notice may, if no caveat has been lodged, bring the
land under this Act by issuing a certificate in manner aforesaid.

29. The applicant may, with the consent of the person (if any) in
whose name the certificate of title has been directed to be issued, with-
draw his application at any time prior to the issuing of the certificate;
and the registrar shall in such case return to him, or to the person
(if any) notified in such application as having a lien thereon, all
instruments of title deposited by such applicant in support of his
application.

30. (1) Upon issuing a certificate of title bringing land under
this Act, the registrar shall cancel by stamp or otherwise the convey-
ance or other instrument through which the applicant derives his title;
but if such instrument relates to or includes any property other than
the land included in such certificate of title, the registrar shall, by
endorsement thereon, cancel the same in so far only as relates to the
land included in such certificate, and such instrument shall for all
other purposes remain in full force and effect.

(2) All instruments of title relating exclusively to the land shall
be retained by the registrar, and no person shall be entitled to the
production thereof except upon the written order of the applicant, or
of some person claiming through or under him, or upon the order of
the Supreme Court or a judge thereof.

31. The reversion expectant upon any lease shall not be deemed
to have been extinguished in consequence of the land whereof such
lease has been granted having been brought under this Act, and the
person appearing upon the register as seised of the land described in
such lease shall be held in every court of law and equity to be seised
of the reversion expectant upon any such lease, and to have all powers,
rights, and remedies to which a reversioner is by law entitled, and
shall be subject to all covenants and conditions therein expressed to
be performed on the part of the lessor.

32. It shall not be necessary for any registrar of deeds to register
any Crown grant that may be transmitted to him for registration
under the Deeds Registration Act 1908, pending an application to bring
the land comprised therein under this Act.

Registration.

33. Each registrar shall keep a book to be called the " register,"
and shall bind up therein duplicates of all grants of land, and of all
certificates of title to land within his district, and each grant and
certificate of title shall constitute a separate folium of such register,
and the registrar shall record thereon the particulars of all instru-
ments, dealings, and other matters by this Act required to be regis-
tered or entered <on the register, affecting the land included under each
such grant or certificate of title, distinct and apart.

34. (1) Every grant and certificate of title shall be deemed and
taken to be registered under the provisions and for the purposes of this
Act. so soon as the same have been marked by the registrar with the
folium and volume as embodied in the register.

(2) Every memorandum of transfer, or other instrument purport-
ing to transfer or in any way to affect land under the provisions of this
Act, shall be deemed to be so registered, so soon as a memorial thereof
as hereinafter described has been entered in the register upon the

NEW ZEALAND. 4g!

folium constituted by the existing grant or certificate of title of such
land.

(3) The person named in any grant, certificate of title, or other
instrument so registered, as seised of or taking any estate or interest,
shall be deemed to be the registered proprietor thereof.

35. (1) Every instrument presented for registration shall (except
in the case of a memorandum of transfer) be in duplicate, or if the
person presenting the same so requires, in triplicate, and shall be
attested by a witness.

(2) In the case of an instrument registered in triplicate, one part
shall be marked " triplicate," and it shall not be necessary to record
on that part any memorial as provided by section 37 of this Act.

(3) Every instrument shall be registered in the order of time in
which the same is presented for that purpose.

(4) Instruments registered in respect to or affecting the same
estate or interest shall, notwithstanding any express, implied, or con-
structive notice, be entitled in priority the one over the other accord-
ing to the date of registration, and not according to the date of each
instrument itself.

(5) On registration thereof the registrar shall file the same or
one part thereof (if in duplicate or triplicate) in his office, and deliver
the other or others (if any) to the person presenting the same for
registration.

(6) So soon as registered every instrument drawn in any of the
forms provided in the schedules to this Act. or in any form which for
the same purpose may be authorized 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.

(7) Such instrument, when so constructively embodied and
stamped with the seal of the registrar, shall have the effect of a deed
duly executed by the parties signing the same.

36. Every memorial entered in the register shall state the nature
of the instrument to which it relates, the day and hour of the produc-
tion 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.

37. (1) Whenever a memorial of any instrument has been en-
tered in the register, the registrar shall (except in the case of transfer
or other dealing endorsed upon a memorandum of lease or mortgage,
as hereinafter provided) record the like memorial on the duplicate
grant, certificate of title, lease, or other instrument evidencing title to
the estate or interest intended to be dealt with or in any way affected,
unless the registrar, as hereinafter provided, dispenses with the pro-
duction of the same.

(2) The registrar shall endorse on every instrument so registered
a certificate of the date and hour on which the said memorial was
entered in the register, and shall authenticate each such certificate by
signing his name and affixing his seal thereto.

(3) Such certificate shall be received in all courts as conclusive
evidence that such instrument has been duly registered.

[38: V. 1915, s. 61, ante p. 411.]

B.T.L.— 31

482 APPENDIX OF STATUTES.

39. No registrar shall register any instrument purporting to
transfer, or otherwise to deal with or affect, any estate or interest in
land under the provisions of this Act, except in the manner herein
provided, nor unless such instrument is in accordance with the provi-
sions hereof.

40. (1) The registrar and examiner, in case they see reasonable
cause for so doing, may dispense with the production of any grant,
certificate of title, lease, or other instrument for the purpose of enter-
ing the memorial by this Act required to be entered upon the transfer
or other dealing with land within his district and under the provisions
of this Act.

(2) Where such production has been dispensed with as aforesaid,
then upon the registration of such transfer or other dealing, the reg-
istrar shall notify in the memorial in the register-book of his district
that no entry of such memorial has been made on the duplicate grant
or other instrument, and such transfer or other dealing shall thereupon
be as valid and effectual as if such memorial had been so entered:
provided always that before registering such transfer or other dealing
the registrar shall give at least fourteen days' notice of his intention
to register such dealing, in the Gazette and in at least 'one newspaper
published in the district.

41. The registrar, upon payment of the prescribed fee, shall fur-
nish to any person applying for the same a certified copy of any reg-
istered instrument affecting land within his district, and every such
certified copy signed by him, and sealed with his seal, shall be received
in evidence for all purposes for which the original instrument might
be put in evidence.

42. Any person may, upon payment of the prescribed fee, have
access to the register for the purpose of inspection, during the hours
and upon the days appointed by regulation under this Act.

43. No registrar shall register any instrument liable to stamp
duty unless the same purports to have been duly stamped, but no reg-
istration shall be invalidated by reason of any error in this respect.

44. (1) Where, by an alteration heretofore or hereafter made in
the boundaries of any registration district, any land formerly com-
prised therein becomes or heretofore has become included in any other
district, all such copies of the registers of the first-mentioned district
as by the registrar thereof have been or hereafter may be deposited
with and accepted by the registrar of such other district, shall for all
the purposes of the Land Transfer Acts have and be deemed to have
had the force and effect <of the original registers, and shall, as regards
the lands affected by the alteration of boundaries, be deemed to be the
original registers and be admissible in evidence as such.

(2) This section shall extend to validate all entries heretofore
made, and all matters and things heretofore done, which if made or
done after the coming into operation of this Act would be valid and
effectual.

(3) For the purposes of this section " registers " includes all reg-
isters, record-books, indices, and books of reference required to be kept
under the Land Transfer Acts, or by any regulations thereunder.

NEW ZEALAND. 433

District Agents.

45. There may from time to time be appointed in and for each
district fit and proper persons as district agents, who may receive and
transmit to the registrar for registration any instruments the regis-
trar is required or empowered to register; and may also, on regis-
tration of any instrument, receive the same from the registrar on
behalf of the persons entitled to possession thereof.

(2) Instruments forwarded for registration through a district
agent shall, as between themselves, be entitled to registration in the
order in which they are lodged with the agent; but, as against all
other instruments, shall be entitled to priority according to the time of
actual reception by the registrar.

(3) The Governor in Council may from time to time prescribe fees
to be taken under this section, and make such regulations with regard
to the matters aforesaid as may be necessary or expedient.

Provisional registration — Lost title-deeds.
[46-53: N. Z. 1885, ss. 42-49, Aust. Torr. Syst. 272-274.]

Outstanding interests.

54. Leases, mortgages, incumbrances, or other estates or interests
affecting the estate of the proprietor at the time of bringing land under
this Act (hereinafter called "outstanding interests"), shall, so far as
the same are disclosed in the application or can otherwise be ascer-
tained, be notified on the register in such manner as to preserve their
priority, and shall thereafter, notwithstanding variation in form, be
dealt with as if the same or corresponding interests had been originally
created under this Act, and every dealing therewith shall imply all
powers, conditions, and covenants incident to dealings in the like form
with land under this Act.

55. (1) Estates and interests existing by virtue of instruments
registered under the Deeds Registration Act 1908, affecting land over
which the native title has been extinguished since the constitution of
the district within which such land is situate, shall be deemed " out-
standing interests " within the meaning of this Act, and shall be noted
accordingly.

(2) No such estates or interests shall be so recognized if created
prior to the antevesting date in the grant, or subsequent to the thirty-
first day of August, 1874.

56. No person claiming any estate or interest by virtue of any
deed or instrument, which might have been registered against the land
under any Act for the time being in force for the registration of deeds
within New Zealand, shall have any claim or action against the reg-
istrar-general or upon the assurance fund by reason of deprivation of
such estate or interest consequent on bringing the land under this
Act, unless such deed or instrument has been so registered, or unless
the registrar has been served personally with notice in writing of such
claim, or has had actual personal knowledge thereof and has omitted
to recognize the same.

484 APPENDIX OF STATUTES.

Registered proprietors.

57. Subject to any Act of the General Assembly for the time being
in force relating to the tenure of land by persons of the native race,
any two or more persons named in any Crown grant, or in any in-
strument executed under this Act, as transferees, mortgagees, or pro-
prietors of any estate or interest shall, unless the contrary is expressed,
be deemed to be entitled as joint tenants with right of survivorship,
and such instrument, when registered, shall take effect accordingly.

58. Notwithstanding the existence in any iother person of any
estate or interest, whether derived by grant from the Crown or other-
wise, which but for this Act might be held to be paramount or to have
priority, the registered proprietor of land or of any estate or interest
in land under the provisions 'Of this Act shall, except in case of fraud,
hold the same subject to such incumbrances, liens, estates, or interests
as may be notified on the folium of the register constituted by the
grant or certificate of title of such land, but absolutely free from all
other incumbrances, liens, estates, or interests whatsoever —

(a) Except the estate or interest of a proprietor claiming the
same land under a prior certificate of title, or under a
prior grant registered under the provisions of this Act;
and

(b) Except so far as regards the omission or misdescription
of any right of way or other easement, created in or ex-
isting upon any land; and

(c) Except so far as regards any portion of land that may be
erroneously included in the grant, certificate of title, lease,
or other instrument evidencing the title of such' registered
proprietor, by wrong description of parcels or of boun-
daries.

[59: V. 1915, s. 244, ante p. 454, omitting reference to "annuitant";
under N. Z. 1915, s. 2 (ante p. 476), "mortgagee" includes "annui-
tant."]

60. After land has become subject to this Act, no title thereto, or
to any right, privilege, or easement in, upon, or over the same, shall
be acquired by possession or user adversely to or in derogation of the
title of the registered proprietor.

Certificate of Title.

61. (1) Every registered proprietor of an estate of freehold in
possession in land under this Act shall be entitled to a certificate of
title for the same, in the Form B in the second schedule hereto, or as
near thereto as the nature of the interest will permit.

(2) No certificate of title shall issue for any undefined interest.

62. The registrar shall note upon such certificate, in such manner
as to preserve their priority, the memorials of all unsatisfied mort-
gages, leases, and other estates and interests outstanding or other-
wise, to which the land is subject at the time of issuing such certifi-
cate; and in case of a certificate issued to a minor, or person under
other legal disability, the registrar shall, in such certificate, state the
particulars of such disability, so far as he has notice or knowledge
thereof.

NEW ZEALAND. 485

63. (1) Every certificate issued pursuant to any dealing under
this Act shall bear even date with the registration of such dealing,
unless such dealing has been originally entered on the provisional
register, in which case the certificate shall bear even date with the
registration of the Crown grant, or with the date of reception by the
registrar of the Governor's warrant for issue of a certificate in lieu of
grant, as the case may be.

(2) A certificate of title issued in the name of a registered pro-
prietor in lieu of a cancelled certificate may be expressed to take effect
as from the date of the certificate originally issued to such proprietor
in respect of the same estate or interest.

64. Whenever any easement or incorporeal right, other than an
annuity or rent-charge in or over any land under this Act, is created
for the purpose of being annexed to, or used and enjoyed together with,
other land under this Act. the registrar shall enter a memorial of the
instrument creating such easement or incorporeal right upon the
grant or certificate of title of such other land, and such memorial shall,
as from the date of entry thereof, have the effect of including such
easement in such grant or certificate of title, as appurtenant to the
land therein described.

65. When two or more persons are entitled as tenants in common
to undivided shares in any land, each such person shall be entitled to
receive a separate certificate for his undivided share: provided that
tenants in common shall not be bound to take separate certificates,
unless and until they require to make separate dealings with their
respective interests.

66. The registrar shall not be bound to issue a certificate of title
upon any application in respect of which notice is hereby required to
be given by advertisement, until after the expiration of fourteen days
from the time limited in such advertisement.

67. If any certificate, whether on the first bringing of land under
this Act or otherwise, is issued in the name of a person who has pre-
viously died, such certificate shall not be void, but the land comprised
therein shall devolve in like manner as if such certificate had been
issued immediately prior to such death.

68. Every certificate of title duly authenticated under the hand
and seal of the registrar shall be received in all courts of law and
equity as evidence of the particulars therein set forth or endorsed
thereon, and of their being entered in the register, and shall, unless
the contrary is proved by production of the register or a certified copy
thereof, be conclusive evidence that the person named in such certifi-
cate of title, or in any entry thereon, as seised of or as taking estate
or interest in the land therein described, is seised or possessed of such
land for the estate or interest therein specified, as from the date of
such certificate or as from the date from which the same is expressed
to take effect, and that the property comprised in such certificate has
been duly brought under this Act.

69. (1) No instrument purporting to deal with any land, estate,
or interest under this Act shall be. or be deemed to have been, invalid
or ineffectual by reason only that the same may purport to have been
executed at a time when the person executing the same was not actu-
ally registered as the proprietor of such land, estate, or interest.

(2) Sub-section three of section 17 hereof shall extend and apply
to this section.

486 APPENDIX OF STATUTES.

70. No right to any public road or reserve shall be acquired, or
be deemed to have been acquired, by the unauthorized inclusion thereof
in any certificate of title, or by the registration of any instrument pur-
porting to deal therewith otherwise than as authorized by law.

71. No certificate of title shall be impeached or defeasible on the
ground of want of notice, or of insufficient notice, of the application to
bring the land therein described under this Act, or on account of any
error, omission, or informality in such application or in the proceed-
ing pursuant thereto.

72. Any certificate of title issued upon the first bringing of land
under this Act, whether upon application or by force of any statute or
of the order of any court, and every certificate of title issued in respect
of the same land, or any part thereof, to any person claiming or deriv-
ing title under or through the first registered proprietor, shall be void
as against the title of any person adversely in actual occupation of and
rightfully entitled to such land, or any part thereof, at the time when
such land was so brought under this Act, and continuing in such occu-
pation at the time of any subsequent certificate of title being issued in
respect of the said land; but every such certificate shall be as valid
and effectual against the title of any other person as if such adverse
occupation did not exist.

73. The registrar may, upon such evidence as appears to him
sufficient, subject to any regulations under this Act, correct errors and
supply omissions in certificates of title or in the register, or In any
entry therein, and may call in any outstanding instrument of title for
that purpose.

[74-77: V. 1915, ss. 80, 81, ante p. 414.J

78. Upon the recovery of any land, estate, or interest by any pro-
ceeding in any court from the person registered as proprietor thereof,
the court or judge, in any case in which such proceeding is not ex-
pressly barred, may direct the registrar to cancel any certificate of title
or other instrument, or any entry or memorial in the register relating
to such land, and to substitute such certificate of title or entry as the
circumstances of the case require, and the registrar shaU give effect to
such order accordingly.

79. (1) Upon the application of any registered proprietor of land
held under separate grants or certificates of title, or under one grant or
certificate, the registrar may issue to such proprietor a single certifi-
cate of title for the whole of such land, or several certificates, each
containing portion of such land, so far as the same may be done con-
sistently with any regulations for the time being in force.

(2) Upon issuing any such certificate the registrar shall cancel
the grant or previous certificate, and shall note thereupon a reference
to the certificate of title issued in lieu thereof.

80. (1) In the event of any grant or certificate of title being lost,
mislaid, or destroyed, the registered proprietor, together with other
persons (if any) having knowledge of the circumstances, may make
a statutory declaration stating the facts of the case, the names and
descriptions of the registered owners, and the particulars of all mort-
gages, incumbrances, or other matters affecting such land and the title
thereto, to the best of the declarant's knowledge and belief.

(2) The registrar, if satisfied as to the truth of such declaration,
may issue a provisional certificate of title, which provisional certifi-

NEW ZEALAND. 487

cate shall contain an exact copy of the original grant or certificate and
of every memorandum and endorsement thereon, and shall also con-
tain a statement of the circumstances under which such provisional
certificate is issued.

(3) The registrar shall at the same time enter in the register
notice of the issuing of such provisional certificate and the date thereof,
and the circumstances under which it was issued.

(4) The registrar before issuing such provisional certificate shall
give at least fourteen days' notice of his intention so to do in the
Gazette, and in at least one newspaper published in New Zealand.

(5) Such provisional certificate shall be available for all purposes
and uses for which the grant or certificate of title so lost or mislaid
would have been available, and as valid to all intents as such lost
grant or certificate.

81. Where a transfer has, under section 75 of the Rating Act
1908. been registered without production of the outstanding certificate
of title, the registrar may, if he is satisfied that such outstanding
certificate cannot be got in and cancelled, issue a new certificate in
the name of the purchaser without such cancellation, and for that
purpose may cancel the existing folium of the register.

Transfers.

82. (1) When land under this Act, or any estate or interest
therein, is intended to be transferred, or any right of way or other
easement is intended to be created, the registered proprietor may
execute for the purpose of registration a memorandum of transfer in
the form C in the second schedule hereto, which memorandum shall,
for description of the land intended to be dealt with, refer to the pro-
per folium of the register, with such further description as may be
necessary, and shall contain a precise statement of the estate or inter-
est intended to be transferred or created.

(2) The registrar may, at his discretion, dispense with the re-
quirements of this tection as to the mode of description of the land,
estate, or interest intended to be dealt with, if he is satisfied that the
description given is sufficient to identify such land, estate, or interest.

83. If any memorandum of transfer purports to transfer the
whole of the land described in a grant or certificate of title, for all the
estate and interest therein of any registered proprietor, it shall not be
necessary for the registrar to cancel such grant or certificate; but the
memorial of such transfer, endorsed on such grant or certificate, shall
be as good evidence that the transferee named in such memorial is
seised of all the estate and interest in the said land of the person
whose interest is expressed to be transferred, subject as in such grant
or certificate mentioned or thereon endorsed, as if a certificate of title
had been issued for the same in the name of the transferee.

84. If the transfer purports to transfer an estate of freehold in
possession, not being a lease for a life or lives, in part of the land
described in any grant or certificate, the transferor shall surrender
such grant or certificate to the registrar and the endorsement thereon
by the registrar of a memorial of such transfer shall have the effect of
cancelling such grant or certificate, so far as relates to the land trans-
ferred.

488 APPENDIX OF STATUTES.

85. The registrar, upon cancelling any grant or certificate by
endorsement as aforesaid, shall issue to the transferee a certificate of
title to the land transferred, and shall retain" the partially cancelled
grant or certificate, and when required by any person entitled thereto,
shall issue to such person a certificate of title for the untransferred
balance of the land, or for any portion thereof.

86. (1) When any certificate of title is partially cancelled by
endorsement thereon of a memorial of transfer of a portion of the
land, the registrar may, at his discretion, allow the person entitled to
the untransferred balance of the land to retain such certificate, and the
same shall, as to such untransferred balance, remain in full force and
virtue; provided that the memorial shall clearly define what portion
of the land has been transferred.

(2) In the case of a transfer of a road-line to his Majesty, the
registrar may mark such road-line upon the plan on the certificate, or
upon a new plan upon the certificate, and endorse a description of such
road-line upon the said certificate; and in any such case it shall not be
necessary to issue a certificate for such road-line, but the old certificate,
or a new one, may be reissued without fee with such road-line marked
thereon, with a memorandum that such transfer has been registered.

87. (1) The registered proprietor 'of land under this Act —

(a) May transfer such land to his wife; or
(&) If a married woman, may make such transfer to her hus-
band; or

(d) Create or execute any powers of appointment, or limit
any estates, whether by remainder or in reversion, and
whether contingent or otherwise, and for that purpose
may modify or alter any form of transfer hereby pre-
scribed.

(2) In case of the limitation of successive interests as aforesaid,
the registrar shall cancel the grant or certificate evidencing the title
of the transferor, and shall issue a certificate in the name of the person
entitled to the freehold estate in possession for such estate as he is
entitled to, and the persons successively entitled in reversion or
remainder shall be entitled to be registered by virtue of the limita-
tions in their favour in such instrument expressed, and each such
person upon his estate becoming vested in possession shall be en-
titled to a certificate of title for the same.

88. In every transfer of land subject to a mortgage, there shall
be implied a covenant on the part of the transferee to and with the
transferor, to pay the interest or other payments thereafter to become
due by virtue of such mortgage, at the time and in manner therein
specified for payment thereof, and to pay the principal sum when and
as the same becomes due, and to keep harmless and indemnified the
transferor in respect of such payments, and in respect of all liability
on account of the future observance of the covenants and conditions
on the part of the transferor in such mortgage expressed or implied.

89. (1) A registered mortgage or lease may be transferred by
memorandum of transfer as aforesaid, or by an instrument in the
form H in the second schedule hereto, which instrument may be
endorsed upon the memorandum of mortgage or lease.

NEW ZEALAND. 489

(2) Upon such memorandum of transfer or other instrument be-
ing registered, the estate or interest of the transferor as set forth in
such instrument, with all rights, powers, and privileges thereto be-
longing or appertaining, shall pass to the transferee.

90. Such transferee 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 origin-
ally as mortgagee or lessee of such land, estate or interest; and by
virtue of every such transfer as is hereinbefore mentioned, the right
to sue upon any memorandum of mortgage or other instrument, and
to recover any debt, sum of money, annuity, or damages thereunder
(notwithstanding the same may be deemed or held to constitute a
chose in action), and all interest in any such debt, sum of money,
annuity, or damages shall be transferred, so as to vest the same at law
as well as in equity in the transferee thereof: provided always that
nothing herein contained shall prevent a court of competent jurisdic-
tion from giving effect to any trusts affecting the said debt, sum of
money, annuity or damages, in case the transferee holds the same as a
trustee for any other person.

91. In every transfer of a lease as aforesaid there shall be implied
a covenant, by and on the part of the transferee with the transferor,
that the transferee will thenceforth pay the rent by the said lease re-
served, and observe and perform all the covenants in the said lease
expressed or implied on the part of the lessee to be observed and per-
formed; and will indemnify and keep harmless the transferor and his
representatives from and against all actions, suits, claims, and expenses
in respect of the non-payment of such rent, or the breach or non-
observance or non-performance of such covenants, or any of them.

92. Whenever any order is made by any court of competent juris-
diction, vesting any estate or interest under this Act in any person,
the registrar, upon being served with an office copy of such order,
shall enter a memorandum thereof in the register and on the outstand-
ing instrument of title, and until such entry is made the said order
shall have no effect in vesting or transferring the said estate or
interest.

Leases.

93. (1) When any land under this Act is intended to be leased or
demised for a life or lives, or for any term not less than three years,
the proprietor shall execute a memorandum of lease in the form D in
the second schedule hereto, and such instrument shall, for the descrip-
tion of the land intended to be dealt with, refer to the grant or certi-
ficate of title, or shall give such other description as may be necessary.

(2) A memorandum of lease executed in the said form D may be
registered, notwithstanding that the term thereof is less than three
years, but no lease or agreement for lease for a less period than three
years shall be void, by reason only of such memorandum not having
been executed or registered.

94. A right for or covenant by the lessee to purchase the land may
be stipulated in a memorandum .of lease; and in case the lessee pays
the purchase-money, and otherwise observes his covenants expressed
and implied in such instrument, the lessor shall be bound to execute
a memorandum of transfer, and to perform all other necessary acts.

490 APPENDIX OF STATUTES.

for the purpose of transferring to the lessee the said lands and the fee
simple thereof.

95. No lease of mortgaged or incumbered land shall be binding
upon the mortgagee, except so far as such mortgagee has consented
thereto.

96. CI) The surrender of a lease by agreement between the par-
ties may be effected by endorsing thereon the word "surrendered";
and such endorsement, if signed by all necessary parties and attested,
shall be noted on the register and on the outstanding certificate of title,
and shall thereupon operate to vest all the estate and interest of the
lessee in the person entitled to the reversion.

(2) No lease subject to mortgage or under-lease shall be sur-
rendered without the consent of the mortgagee or sub-lessee.

97. In every memorandum of lease there shall be implied the
following covenants against the lessee, that is to say: —

(c) That he will pay the rent thereby reserved, at the times
therein mentioned, and all rates and taxes which may be
payable in respect of the demised property during the
continuance of the lease:

(&) That he will keep and yield up the demised property in
good and tenantable repair.

98. In every memorandum of lease there shall also be implied the
following powers in the lessor, that is to say: —

(a) That he may, by himself or his agents, at all reasonable
times, enter upon the demised property and view the state
of repair thereof, and may serve upon the lessee, or leave
at his last or usual place of abode in New Zealand, or upon
the demised property, a notice in writing of any defect,
requiring him, within a reasonable time to be therein pre-
scribed, to repair the same:

(6) That in case the rent or any part thereof is in arrear for
the space of six months, although no formal demand for
payment has been made, or in case default is made in the
fulfilment or observance of any covenant or condition,
whether expressed or implied, in such lease on the part of
the lessee, and is continued for the space of six months,
or in case the repairs required by such notice as afore-
said have not been completed within the time therein
specified, such lessor may re-enter upon and take posses-
sion of such demised premises.

99. (1) In case of re-entry and recovery of possession of any
leasehold premises, either by process of law or by exercise of any
power of re-entry in the lease contained or implied, the registrar shall,
upon proof to his satisfaction of such re-entry, and of actual recovery
of possession, notify such re-entry upon the register, and upon the out-
standing instrument of title, if produced to him for that purpose.

(2) The estate of the lessee, and of every person claiming through
or under him, shall thereupon cease and determine, but without re-
leasing him or them from lfcibility in respect of the breach or non-
observance of any covenantor condition in such lease contained or
implied.

(3) Provided that unless such re-entry and recovery of possession
have been by formal process of law, the registrar shall require notice of

NEW ZEALAND. 491

application, to register the same to be served on all persons interested
under the lease, or failing such notice, shall give at least one calendar
month's notice of such application by publication in the Gazette, and
in some newspaper published in the district, before making any entry
upon the register.

100. (1) The provisions of section 80 hereof shall, mutatis
mutandis, apply to any memorandum of lease of which the outstanding
duplicate has been lost, mislaid, or destroyed. ,

(2) The same provisions shall, mutatis mutandis, apply to any
memorandum of lease of which the outstanding duplicate has become
defaced or dilapidated and is surrendered to the registrar for cancella-
tion, but in such case the statutory declaration referred to in sub-
section one and the notices referred to in sub-section four of the said
section 80 shall not be necessary.

Mortgages.

101. (1) Whenever any estate or interest under this Act is in-
tended to be charged with or made security for payment of any money,
the registered proprietor shall execute a memorandum in the form E
or F in the second schedule hereto, as may be applicable to the case,
and every such instrument shall contain a precise statement of the
estate or interest intended to be charged, and shall, for description of
the land, refer to the proper folium of the register, and shall give such
other description as may be necessary.

(2) The form G in the second schedule hereto may be used in lieu
of the said form E.

102. A mortgage under this Act shall have effect as security, but
shall not operate as a transfer of the estate or interest so charged.

103. (1) In every mortgage under this Act there shall be im-
plied the covenants, conditions, and powers set forth in the fourth
schedule hereto, except in so far as is otherwise expressed in the
mortgage.

(2) The covenant relating to insurance contained in the sixth
schedule hereto shall not apply to such mortgages.

104. (1) In the case of every mortgage under this Act —

(a) The amount secured by the mortgage maytbe increased or

reduced;
(6) The rate of interest may be increased or reduced; and
(c) The term of currency of the mortgage may be shortened,
extended, or renewed —
by a memorandum in such one of the forms numbered (1), (2), or (3)
in the fifth schedule to this Act as is applicable.

(2) The memorandum may include all or any of the matters men-
tioned in sub-section one hereof, and in such case the said forms shall
be modified accordingly.

(3) The memorandum may be registered in like manner as the
original mortgage.

(4) A memorandum or instrument, varying the terms or conditions
of any mortgage of land subject to a subsequent mortgage, shall not be
binding on any mortgagee, unless he has consented thereto in writing
on such memorandum or instrument, but such consent shall render the
said memorandum or instrument binding on the mortgagee so con-
senting, and shall be deemed to be notice to and shall be binding on all

492 APPENDIX OF STATUTES.

persons who may subsequently derive from him any interest in the
mortgaged property.

Remedies of mortgagee.

105. The mortgagee, upon default in payment of the principal
sum, interest, annuity, or rent-charge secured by any mortgage, or of
any part thereof, may enter into possession of the mortgaged land by
receiving the rents and profits thereof, or may bring an action for
possession of the said land, either before or after entering into the
receipt of the rents and profits thereof, and either before or after any
sale of such land is effected under the power of sale given or implied in
his mortgage.

106. Besides his remedy against the mortgagor, every mortgagee
shall be entitled, after the principal sum, interest, annuity, or rent-
charge, or any part thereof, has become in arrear for twenty-one days,
and after seven days have elapsed from the date of application for the
payment thereof to the occupier or tenant, to enter upon the mortgaged
land and distrain and sell the goods and chattels of such occupier or
tenant, and to retain thereout the moneys so in arrear, and all costs
and expenses occasioned by such distress and sale: provided that no
occupier or tenant occupying such land shall be liable to pay to any
mortgagee a greater sum than the amount of rent which, at the time
of making such distress, is then due from such occupier or tenant to
the mortgagor, or to the person claiming the said land under the mort-
gagor, and any amount so paid shall be held to be pro tan to in satisfac-
tion of such rent.

107. (1) The receipt or receipts in writing of the mortgagee shall
be a sufficient discharge to the purchaser of the mortgaged land, ,
estate, or interest, or of any portion thereof, for so much of his pur-
chase money as may be thereby expressed to be received.

(2) iSuch purchaser shall not be answerable for the loss, misappli-
cation, or non-application, or be obliged to see to the application of
the purchase money by him paid, nor shall he be concerned to enquire
as to the fact of any default or notice having been made or given as
aforesaid.

108. The purchase money to arise from the sale of any such land,
estate, or interest shall be applied —

(a) Firstly, in payment of the expenses occasioned by such

sale :
(6) Secondly, in payment of the moneys then due or owing to

the mortgagee:
(c) Thirdly, in payment of subsequent registered mortgages

or incumbrances (if any), in the order of their priority;

and the surplus (if any) shall be paid to the mortgagor, as

the case may be.

109. Upon the registration of any transfer executed by a mort-
gagee for the purpose of such sale, the estate or interest of the mort-
gagor, therein expressed to be transferred, shall pass to and vest in
the purchaser, freed and discharged from all liability on account of
such mortgage, or of any estate or interest registered subsequent
thereto.

NEW ZEALAND. 493

Sale of mortgaged property by registrar of Supreme Court.

110. (1) Any present or future mortgagee of land may, at any
time after he has become entitled to exercise the power of sale con-
tained or implied in his mortgage, apply in writing to the registrar
who is acting within the land registration district in which the land
intended to be sold is situate, or if that land is situate in more districts
than one, then to the registrar acting in any one of such districts, to
conduct the sale of the whole or any part of the land comprised in the
mortgage, and in such application shall state the value at which he
estimates the land to be sold.

(2) The registrar shall fix a convenient time (being not more
than three months and not less than one month from the date of the
application) and a convenient place for the sale, give such notice of
the sale by advertisement in some newspaper circulating in the neigh-
bourhood as he deems sufficient, approve of proper conditions of sale,
employ an auctioneer, and do all other necessary acts for carrying out
the sale.

(3) For the purposes of this and the next succeeding five sections
'• registrar " means the registrar of the Supreme Court, and includes a
deputy registrar where there is no registrar, or in any case where the
deputy may lawfully act for and on behalf of the registrar.

111. At any time before the sale the mortgagor may pay to the
mortgagee either the value of the land, as estimated by the mortgagee,
or the amount due and owing under the mortgage, together with the
expenses already incurred by the mortgagee in connexion with the
intended sale, and any moneys expended by him on or about the land
subsequently to the time when he estimated the value thereof as afore-
said; and on such payment the mortgagee shall do the acts required
by the twelfth clause of the fourth schedule hereto: provided that where
the sum so paid is less than the amount owing under the mortgage, the
balance may be recovered from the mortgagor under the covenant to
repay expressed or implied in the mortgage.

112. (1) The mortgagee may be a bidder at any such sale con-
ducted as aforesaid, and become the purchaser of the land or any part
thereof.

(2) In the event of the mortgagee being declared the purchaser,
the said registrar shall, on demand by the mortgagee, execute a trans-
fer of the land purchased, expressed to be made between the registrar
(describing him by his official description only) and the mortgagee,
with or without the addition of any other parties, and containing a
recital that such sale has been made under this section.

(3) In such transfer the consideration to be stated shall be not
less than the value of the land as estimated by the mortgagee as afore-
said.

(4) A transfer in pursuance of any such sale may be made by the
registrar to any person whom the mortgagee in writing may appoint,
instead of to the mortgagee, and shall have the same force and effect
in favour of the person to whom it is made as it would have had if
made to the mortgagee.

(5) Where any sale made under the provisions of the Land
Transfer Act 1885 has not been completed by the execution of a proper
transfer, the transfer may be made in the same manner and with thp
same effect as if such Act had continued in force, and for the purpose

494 APPENDIX OF STATUTES.

only of completing such sale such Act shall continue in force accord-
ingly.

113. Any transfer executed by the registrar, upon a sale made
after the first day of January, 1906 (being the date of the coming into
operation of the Property Law Act 1905), shall in favour of any person
(other than a mortgagee purchasing under the last preceding section,
or any person appointed by him) claiming by, through, or under such
transfer (including a person claiming under a transfer to the mort-
gagee) in good faith and for valuable consideration, be conclusive proof
that all the provisions of this Act relating to the sale have been com-
plied with, and that all things have happened and all times have
elapsed to authorize such transfer to be made.

114. (1) In respect of every application under section 110 hereof
there shall be paid to the registrar by the mortgagee, in addition to the
reasonable expenses of and incidental to the sale, —

Where the land is sold, a fee of one-eighth per centum where
the purchase money does not exceed two hundred pounds,
and where the purchase money exceeds that sum one-
quarter per centum on the remainder of the purchase
money, but in no case shall such fee be less than one
pound nor more than twenty pounds.
(2) In any case where the land sold is sold subject to a mortgage,
the moneys secured by the mortgage shall be deemed to be " purchase
money " within the meaning of this section.

115. (1) Every transfer made and executed in favour of the
mortgagee, or by his direction as aforesaid, may be registered under
this Act.

(2) Upon such registration the land, or the estate or interest of
the mortgagor therein expressed to be transferred, shall vest in the
transferee, freed and discharged from all liability on account of the
mortgage under which such power of sale has been exercised, or of
any estate or interest registered subsequent thereto.

116. (1) Upon the production of any memorandum, by endorse-
ment on the mortgage or otherwise, signed by the mortgagee and duly
attested, discharging the land, estate, or interest from the whole or
part of the principal sum or annuity secured, or discharging any part
of the land comprised in such mortgage from the whole or any part
of such principal sum or annuity, the registrar shall make an entry
in the register and on the outstanding instrument of title, noting that
such mortgage is discharged wholly or partially.

(2) Upon such entry being made, the land, estate, or interest
mentioned or referred to in such memorandum, shall cease to be sub-
ject to or liable for such principal sum or annuity, or for the part
thereof noted in such entry as discharged.

(3) The outstanding duplicate of every mortgage wholly or par-
tially discharged as aforesaid shall be surrendered to the registrar to
be cancelled or part cancelled, as the case may be, unless the registrar
sees reasonable cause to dispense with such surrender.

(4) A mortgage subject to a sub-mortgage shall not be discharged,
nor shall the terms thereof be varied, nor shall the power of sale con-
tained or implied therein be exercised, without the consent in writing
of the sub-mortgagee.

(5) The consent of the sub-mortgagee to the variation of the
terms of a mortgage shall render the instrument making the variation

NEW ZEALAND. 495

binding on him, and on all persons who may subsequently derive from
him any interest in the mortgage.

Absent mortgagees.

117. (1) Where any mortgagee is absent from New Zealand, or
is dead, and. so far as the mortgagor is aware, there is no person in
New Zealand authorized to give a discharge of the mortgage debt at or
after the time appointed for the redemption of the mortgage, the
public trustee, on tender to him of the mortgage debt, and on proof to
his satisfaction that the amount tendered is the whole amount due
under the mortgage, may receive the same in trust for the mortgagee
or other person entitled thereto.

(2) Upon presentation of the receipt of the public trustee for the
amount of the said mortgage money and interest, the registrar shall
make an entry in the register discharging such mortgage, stating the
day and hour on which such entry is made.

(3) 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 production of the mortgage with the receipt of
the mortgagee.

(4) The registrar shall also endorse on the grant, certificate of
title, or other instrument as aforesaid, and also on the memorandum
of mortgage, whenever those instruments are brought to him for that
purpose, the several particulars hereinbefore directed to be endorsed
upon each of such instruments respectively.

(5) The production of the public trustee's receipt for the mortgage
moneys shall be sufficient authority to the person in possession of the
instruments of title to the mortgaged property to deliver the same to
the mortgagor.

(6) A judge of the Supreme Court may, in a summary way, order
any person in possession of the instruments of title to the mortgaged
property to deliver them to the mortgagor, on production of the public
trustee's receipt for the mortgage moneys, and on payment of all proper
charges (if any).

Other rights of mortgagees.

118. Every mortgagee of land under this Act shall, as against
the mortgagor and those claiming through or under him, if default
has been made in payment of the interest, or annual or principal sum
secured by any mortgage, or any part thereof, for the time specified by
this Act or otherwise provided in such instrument, have all the like
remedies for obtaining possession of the mortgaged land as are by law
given to a landlord against a lessee or tenant whose term is expired or
rent in arrear.

119. No right of recovery of possession by any lessor or mortgagee
of land under this Act shall extend to bar the right of any mortgagee
of any lease, or any part thereof, who is not in possession, if such
mortgagee pays all rent in arrear, and all costs and damages sustained
by the lessor or person entitled to exercise such right of recovery, and
performs all the covenants and agreements which, on the part and
behalf of the first lessee, are and ought to be performed.

496 APPENDIX OF STATUTES.

120. Every mortgagee of leasehold land under this Act, or any
person claiming the said land as a purchaser or otherwise from or
under such mortgagee, after entering into possession of the said land
or the rents and profits thereof, shall, during such possession and to
the extent of any rents and profits which may be received by him, be-
come and be subject and be liable to the lessor of the said land, or the
person for the time being entitled to the said lessor's estate or interest
in the said land, to the same extent as the lessee or tenant was sub-
ject to and liable for, prior to such mortgagee or other person entering
into possession of the said land or the rents and profits thereof.

121. The mortgagee, or first mortgagee for the time being, of any
estate or interest under this Act shall be entitled to the possession of
the outstanding grant, certificate, or other instrument of title; or the
same may by agreement be deposited with the registrar, for safe
custody during the continuance of the security.

Discharge of annuity.

122. Upon proof of the death of the annuitant, or of the occur-
rence of the event or circumstance upon which, in accordance with the
provisions of any instrument executed for the purpose of securing an
annuity or continuing payment, such annuity or payment shall cease
to be payable; and upon proof that all arrears thereof have been paid,
satisfied or discharged, the registrar shall make an entry in the reg-
ister of such satisfaction or discharge, and shall endorse the same on
the outstanding duplicate of title, if produced to him for that purpose,
and shall, if the same is surrendered to him, cancel the instrument
creating the incumbrance.

Transmission.

123. (1) Any person claiming to be entitled to any estate or
interest under this Act by virtue of any transmission may make appli-
cation in writing to the registrar to have such transmission registered.

(2) Such application shall accurately define the estate or interest
claimed by the applicant, and shall state, so far as is within the know-
ledge of the applicant, the nature of every estate or interest held by
any other person at law or in equity affecting the same, and that he
verily believes himself to be entitled to the estate or interest in re-
spect of which he applies to be registered as proprietor, and the state-
ments in such application shall be verified by the oath or statutory
declaration of the applicant.

124. (1) If on such application, and upon the evidence adduced
in support thereof, it appears to the registrar and examiner of titles
that the applicant is entitled to the estate or interest claimed, the reg-
istrar, with the concurrence of the examiner, shall register the appli-
cant as proprietor thereof.

(2) The person so registered as proprietor shall hold the estate or
interest transmitted subject to all equities affecting the same, but for
the purpose of any dealing therewith shall be deemed to be the absolute
proprietor thereof.

125. Upon the registration of a transmission under any will or
settlement, the registrar and examiner of titles may direct a caveat to
be entered by the registrar, for the protection of the interests of per-

NEW ZEALAND. 497

sons appearing by such will or settlement to be beneficially interested
in the estate or interest the subject of such transmission.

126. Upon the bankruptcy of the registered proprietor of any
lease subject to mortgage under this Act, the registrar, upon the appli-
cation in writing of the mortgagee, accompanied by a statement in
writing signed by the official assignee of the bankrupt's estate, certify-
ing his refusal to accept such lease, shall enter in the register the
particulars of such refusal.

127. Such entry shall operate as a transfer on sale, and the inter-
est of the bankrupt in such lease shall thereupon vest in such mort-
gagee.

128. If such mortgagee neglects or declines to make such appli-
cation as aforesaid, the registrar, upon application by the lessor, and
proof of such neglect or refusal and of the matters aforesaid, shall enter
in the register notice of the refusal of the official assignee to accept
such lease, and such entry shall operate as a surrender of such lease.

129. Upon the production of proof of the marriage of a female
registered proprietor of any land, estate, or interest under this Act,
accompanied by a statement in writing signed by such female proprie-
tor to that effect, the registrar shall enter on the register, and also
upon the outstanding duplicate of title (sic), the name and description
of her husband, the date of the marriage and where solemnized, and
the date and hour of the production to him of the evidence of such
marriage.

Trusts.

130. (1) Except as provided in Appendix I to this Act in relation
to public reserves and other public lands, no entry shall be made in the
register of any notice of trusts, and no such entry, if made, shall have
any effect.

(2) Trusts affecting land under this Act may be declared by any
deed or instrument; and such deed or instrument, or a duplicate or
attested copy thereof, may be deposited with the registrar for safe
custody and reference, but shall not be registered.

131. Upon the transfer of any land, estate, or interest under
this Act to two or more persons as joint proprietors, the transferor
may insert in the memorandum of transfer or other instrument the
words " no survivorship," and the registrar shall note the same in the
register, and also enter the said words upon any certificate of title
issued pursuant to such transfer.

132. Any persons registered as joint proprietors of any land,
estate, or interest under this Act may, by writing under their hands,
authorize the registrar to enter the words " no survivorship " upon
the grant, certificate of title, or other instrument evidencing their
title to such estate or interest, and also upon the duplicate of such
instrument.

133. After such entry has been made and signed by the registrar
in either case as aforesaid, it 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, estate, or interest without obtaining
the sanction of the Supreme Court, or a judge thereof, by an order on
motion or petition.

B.T.L.— 32

498 APPENDIX OF STATUTES.

134. (1) Before making any such order the Court or judge shall,
if it seems requisite, cause notice of intention so to do to be advertised
in the Gazette, and in at least one newspaper published in the district
in which the land is, and shall appoint a time within which any person
interested may show cause why such order should not be issued.

(2) Thereupon the said Court or judge in such order may give
directions for the transfer of such land, estate, or interest to any new
proprietor or proprietors, solely or jointly, with or in the place of any
existing proprietor or proprietors, or may make such order in the pre-
mises as the Court thinks just for the protection of the persons bene-
ficially interested in such land, estate, or interest, or in the proceeds
thereof.

(3) Upon such order being deposited with the registrar, he shall
make such entries and perform such acts as may be necessary for the
purpose of giving effect to such order.

135. (1) If the registered proprietor of any land, or of any estate
or interest under this Act, is desirous of transferring the same to two
or more persons in trust, such proprietor, in the instrument or deed
declaring such trust, may nominate and appoint the registrar of the
district within which the land is, by the style of his office, to be one of
such trustees.

(2) It shall thereupon be the duty of such registrar for the time
being to act as such trustee, so far as relates to the transfer of such
land, estate, or interest.

136. (1) Whenever a person entitled to or interested in land as
a trustee would be entitled to bring or defend any action in his own
name, for recovering the possession of land under this Act, such person
shall be bound to allow his name to be used as a plaintiff or defendant
in such action by any beneficiary or person claiming an estate or in-
terest in the said land.

(2) In every such case the person entitled or interested as such
trustee shall be entitled to be indemnified, in like manner as a trustee
would before the coming into operation of the Land Transfer Act 1885
have been entitled to be indemnified in a similar case of his name being
used in any such action or proceeding by his cestui que trust.

Registration abstract.
[137-144: N. Z. 1885, ss. 129-136, Aust. Torr. Syst, 293, 294.]

Caveat.

145. Any person having or claiming an interest in any land the
subject of an application to bring the same under this Act may, at any
time within the time limited for that purpose by advertisement as
hereinbefore provided, lodge with the registrar a caveat in the form K
in the second schedule hereto.

146. Any person —

(a) Claiming to be entitled to, or to be beneficially interested
in, any land, estate, or interest under this Act by virtue
of any unregistered agreement, or other instrument or
transmission, or of any trust expressed or implied, or
otherwise howsoever; or

NEW ZEALAND. 499

(&) Transferring any estate or interest under this Act to any
other person to be held in trust —
may at any time lodge with the registrar a caveat in the form L in
the second schedule hereto.

147. (1) Every caveat shall be signed by the caveator or by his
attorney or agent, and shall state with sufficient certainty the nature
of the estate or interest claimed by the caveator, with such other infor-
mation and evidence as may be required by regulations under this
Act, and shall appoint a place or give an address within the district at
or to which notices and proceedings relating to such caveat may be
served or addressed.

(2) Every caveat shall be entered on the register as of the day
and hour of the reception thereof by the registrar.

148. Every notice relating to a caveat, and any proceedings in
respect thereof, if served at the place appointed in the caveat, or for-
warded through the post office by registered letter addressed as afore-
said, shall be deemed duly served.

149. So long as a caveat in the form K remains in force, the
registrar shall not proceed with the bringing under this Act of the land
affected thereby, nor shall it be lawful for the person making such
application to withdraw the same, except with the consent of the cavea-
tor, or by leave of a judge of the Supreme Court.

150. So long as a caveat in the form L remains in force, the reg-
istrar shall not make any entry on the register having the effect of
charging or transferring or otherwise affecting the estate or interest
protected by such caveat, or issue any registration abstract in respect
thereof: provided that nothing herein shall prevent the completion of
the registration of an instrument which has been accepted for regis-
tration before the receipt of the caveat.

151. Upon the receipt of any caveat the registrar shall notify
the same to the person against whose application to bring land under
this Act. or to be registered as proprietor consequent on any trans-
mission, or to the registered proprietor against whose title to deal with
land under this Act, such caveat has been lodged.

152. (1) Such applicant or registered proprietor may, if he thinks
fit, summon the caveator, or the person on whose behalf such caveat
has been lodged, to attend before the Supreme Court or a judge thereof,
to show cause why such caveat should not be removed.

(2) Such Court or judge, upon proof that such person has been
summoned, may make such order in the premises, either ex parte or
otherwise, as to such Court or judge seems meet.

153. After the expiration of three months from the receipt thereof
every caveat in the form K shall be deemed to have lapsed unless the
person by whom or on whose behalf the same was lodged has within
that time taken proceedings in any court of competent jurisdiction to
establish his title to the estate, interest, lien, or charge therein speci-
fied, and has given written notice thereof to the registrar, or has ob-
tained from the Supreme Court an order or injunction restraining the
registrar from bringing the land therein referred to under this Act.

154. Except in the case of a caveat lodged by or on behalf of a
beneficiary claiming under any will or settlement, or for the protec-
tion of any trust, or by the registrar in exercise of the powers by this
Act given to him in that behalf, every caveat in the form L shall, upon

500 APPENDIX OF STATUTES.

the expiration of fourteen days after notice given to the caveator that
application has been made for the registration of any instrument affect-
ing the land, estate, or interest protected thereby, be deemed to have
lapsed as to such land, estate, or interest, or so much thereof as is
referred to in such notice, unless notice is, within the said fourteen
days, given to the registrar that application for an order to the con-
trary has been made to the Supreme Court or a judge thereof, and such
order is made and served on the registrar within a further period of
fourteen days.

155. (1) Any person lodging any caveat without reasonable cause
is liable to make to any person who may have sustained damage thereby
such compensation as may be just.

(2) Such compensation shall be recoverable in an action at law by
the person who has sustained damage from the person who lodged the
caveat.

156. Any caveat may be withdrawn by the caveator, or by his
attorney or agent under a written authority, and either as to the whole
or any part of the land affected, or the consent of the caveator may be
given for the registration of any particular dealing expressed to be
made subject to the rights of the caveator.

157. When any caveat in either of the forms hereinbefore pro-
vided has lapsed, it shall not be lawful for the registrar to receive any
second caveat affecting the same land, estate, or interest by the same
person, or in the same right and for the same cause, except by order
of the Supreme Court or a judge thereof.

Powers of attorney.

158. The bringing of land under this Act shall not invalidate any
power of attorney previously executed, but such land may thereafter
be dealt with under such power subject to the provisions hereof.

159. The registered proprietor of land under this Act, or any
person claiming any estate or interest under this Act, may by power
of attorney in the form numbered (1) in the third schedule hereto, or
in any usual form, and either in general terms or specially, authorize
and appoint any person on his behalf to execute transfers or other
dealings therewith, or to make any application to the registrar or to
any Court or judge in relation thereto.

160. Every power of attorney intended to be used under this
Act, or a duplicate or attested copy thereof, verified to the satisfaction
of the registrar, shall be deposited with the registrar in manner pro-
vided by regulations under this Act, but for the purposes of this Act it
shall not be necessary to register any power of attorney.

161. (1) The grantor of any revocable power of attorney may,
by notice to the registrar in the form numbered (2) in the third
schedule hereto, revoke the same, either wholly or as to the land
specified in such notice.

(2) No power of attorney shall be deemed to have been revoked
by reason only of a subsequent power of attorney being deposited
without express notice as aforesaid, nor shall any such revocation take
effect as to instruments executed prior to the reception of such notice
by the registrar.

(3) No power of attorney shall be deemed to have been or to be
revoked by the bankruptcy of the grantee, or by the marriage of a
female grantee.

NEW ZEALAXD. 501

162. No power of attorney made or used under this Act, or any
former Land Transfer Act, shall be invalidated by reason of such
power not having been created under seal.

163. Subject to the foregoing provisions, the provisions of the
Property Law Act 1908, relating to powers of attorney, shall apply to
powers of attorney made or used under this Act.

Covenants iinplied in instruments.

164. In every instrument charging, creating, or transferring any
estate or interest under this Act there shall be implied the following
covenants, by the party charging, creating, or transferring such estate
or interest, to and with each and every person taking any estate or
interest under such instrument —

(a) That the (implied) covenantor will do all such acts as
may be necessary on his part to give effect to all covenants,
conditions, and purposes expressly set forth in such in-
strument, or by this Act declared to be implied in instru-
ments of a like nature:

(6) That the (implied) covenantor will, at the request and
cost of the person taking any estate or interest as afore-
said, execute all such further instruments as may be neces-
sary for further and better assuring and perfecting the
title of such person as last aforesaid to the estate or in-
terest expressed or intended to be granted, created or
transferred.

165. Such of the covenants set forth at length in the sixth
schedule hereto as are intended to be implied in any instrument
executed for the purpose of registration under this Act shall, if ex-
pressed in the short form of words prescribed in the said schedule for
the case of each covenant respectively, be implied in such instrument
as fully and effectually as if such covenants were set forth therein at
length in the words of the said schedule, with all such modifications as
may be necessary in order to adapt them to the instrument.

166. (1) Every covenant and power implied or existing in any
instrument by virtue of this Act may be negatived, modified, enlarged
or extended, by express declaration in such instrument or endorsed
thereon.

(2) Every such covenant or power shall, subject to any such
declaration as aforesaid, have the same force and effect, and be en-
forced in the same manner, as if it had been set out at length in such
instrument.

(3) Where any such instrument is executed by more parties than
one, such covenants as are by virtue of this Act therein implied or
existing shall be construed to be several, and also to bind the parties,
or any two or more of them, jointly.

167. In any action for a breach of any such covenant, the cove-
nant alleged to be broken may be set forth in the statement of claim,
and it may be alleged that the party against whom such action is
brought did so covenant, precisely in the same manner as if such cove-
nant had been expressed in words in such instrument, any law or prac-
tice to the contrary notwithstanding.

502 APPENDIX OF STATUTES.

Execution of instalments.

168. (1) Every instrument executed for the purpose of creating,
transferring, or charging any estate or interest under this Act, shall be
signed by the registered proprietor and attested by at least one witness,
and if the instrument is executed in New Zealand such witness shall
add to his signature his place of abode and calling, office or description,
but no particular form of words shall be requisite for the attestation.

(2) Every instrument so executed shall, when registered, have the
force and effect of a deed executed by the parties signing the same.

169. Instruments executed as aforesaid shall be held to be duly
attested, and the execution thereof may be proved before a district
land registrar, assistant land registrar, or any deputy of either of
such officers, or before a notary public, justice of the peace, or a solici-
tor of the Supreme Court, if the parties executing the same are resident
within New Zealand, by the oath or statutory declaration of the par-
ties executing the same, or of a witness attesting the signing thereof.

[170, 171: N. Z. 1885, ss. 162, 163, Aust. Torr. Syst. 299.]

172. A married woman shall, for the purpose of any dealing by
her under this Act, be deemed a feme sole.

173. A corporation, in lieu of signing any instrument, may exe-
cute the same by affixing thereto the common seal of the corporation,
or the official seal for use in New Zealand, or by attorney appointed
under such common or official seal; and such seal affixed to any instru-
ment shall be sufficient proof to the registrar that the same was affixed
under proper authority, and that such instrument is binding on the
corporation whose seal it bears.

174. Every instrument registered under this Act shall, if pur-
porting to have been executed in accordance with the provisions of this
Act, be presumed to have been duly executed, and shall be received in
evidence as such in any court of law or equity, unless the contrary is
proved.

[175: N. Z. 1885, s. 168, Aust. Torr. Syst. 300.]

Verification of instruments.

176. (1) Every instrument of any kind heretofore or hereafter
duly executed out of New Zealand shall, so far as regards the execu-
tion thereof, be admissible in evidence in any court of justice in New
Zealand, and before any officer or person having by law or consent of
parties authority to hear, receive, and examine evidence in New Zea-
land, if such execution is verified in any of the following ways, that is
to say: —

(a) Where the instrument is executed in any part of the

British dominions other than New Zealand, then either —

(i) In accordance with the provisions in that behalf

of the Imperial Act now known by the short title of the

Statutory Declarations Act 1835; or

(ii) In accordance with the law in force in that part
of the British dominions where the verification takes
place, as to verifying the execution of instruments to be
used abroad:
(&) Where the instrument is executed in any foreign country,
then if it purports to have been executed before a British

NEW ZEALAND. 503

minister or consul exercising his functions in that coun-
try, and to be sealed with his seal of office (if any), or if
there is endorsed thereon or annexed thereto a declara-
tion of the due execution thereof, purporting to be made
by an% attesting witness thereto before any such minister
or consul as aforesaid, and to be sealed as aforesaid.

(2) It shall be presumed that any seal or signature impressed,
affixed, appended, or subscribed on or to any document tendered in
evidence under this section is genuine, and that the person appearing
to have signed or attested any such document had in fact authority
to sign or attest the same, and that any such document was in fact
made in accordance with the law under which it purports to have been
made, unless the party objecting to the admission of the document
proves the contrary.

(3) In this section —

"Consul" includes, a consul-general, consul, vice-consul.

acting-consul, proconsul, and consular agent:
" Minister " includes an ambassador, envoy, minister, charge

d'affaires, and secretary of embassy or legation.

Surveys.

[177, 180-182: N. Z. 1885, ss. 170, 174, &c, Aust. Torr. Syst. 301,
302. 328, 329.J

178. On an application to bring land under the provisions of this
Act, or for a new certificate on the subdivision of or other dealing
with the land comprised in any certificate or other instrument of
title or any part thereof, or for the untransferred part of the land
comprised in any such certificate or other instrument of title, the
registrar may require the applicant to deposit in the land registry
office of the district a plan of the land or subdivision or portion
thereof, as the case may be, which plan shall be in accordance with the
regulations for the time being in force in that behalf, and shall be
verified by the statutory declaration of a licensed surveyor in such
form as the regulations prescribe; and until such requisition is com-
plied with the registrar shall not be bound to proceed with the appli-
cation.

179. (1) The deposit of a plan of subdivision of any land shall
not operate as a dedication for public purposes of roads shown on
such plan, but a right of way over all such roads shall be appurtenant
to every portion of the land in such subdivision, unless expressly
excepted.

(2) Every instrument in which land is described by reference to
a deposited plan shall take effect, according to the intent and meaning
thereof, as if such plan was fully set out thereon.

Additional powers of registrar.

183. Every registrar, in addition to the powers hereinbefore
vested in him, may exercise all or any of the powers following, that is
to say: —

(a) He may require the proprietor, or other person making or
concurring in any application under this Act, to produce
any deed or instrument in his possession or control relat-

504 APPENDIX OF STATUTES.

ing to the land the subject of such application, and if
necessary, to attend and give any information or explan-
ation concerning the same:
(&) He may require any person having in his possession or
control any grant, certificate, or other instrument upon
which any memorial or entry is required to be endorsed
for the purposes of this Act, to produce such instrument
within a reasonable time to be fixed by such notice, and
to deposit the same in the land registry office of his dis-
trict, for such time as may be necessary for the making
of such endorsement or entry:

(c) He may, if in his opinion the number or nature of the
entries on any folium of the register renders it expedient
to close the same, or if any document of title has become
worn, defaced, or mutilated so as to justify his so doing,
require the holder of the outstanding duplicate of title
(sic) to surrender the same for cancellation; and upon
such cancellation a new certificate shall be issued to the
person entitled thereto, upon payment of the prescribed
fee: provided that the registrar may at his discretion
remit such fee, except in case of wilful defacement or
mutilation of any instrument:

(d) He may enter caveats for the protection of any person
who is under the disability of infancy, coverture, lunacy,
unsoundness of mind, or absence from New Zealand, or
on behalf of the Crown, to prohibit the transfer or dealing
with any land within his district belonging or supposed
to belong to any such persons as hereinbefore mentioned,
and also to prohibit the dealing with any land within his
district, 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 instru-
ment, or for the prevention of any fraud or improper
dealing:

(e) He may administer oaths, or may take a statutory declara-
tion in lieu of administering an oath.

184. (1) If, upon requisition in writing made by a registrar for
any purpose mentioned in the last preceding section, any proprietor
or other person without reasonable cause refuses or neglects —

(a) To produce, surrender, or deposit any instrument, or to

allow the same to be inspected; or
(&) To give any explanation which he is hereinbefore required
to give —
he is liable to a fine not exceeding five pounds, for each day during
which such refusal or neglect continues.

(2) Such fine may be recovered at the suit of the registrar in any
court of competent jurisdiction, and the offender shall, in addition
thereto, be liable to make compensation to any person who has sus-
tained loss or damage by reason of such refusal or neglect.

Assurance fund.

185. (1) Upon the first bringing of land under this Act upon
application of the proprietor, there shall be paid to the registrar the

NEW ZEALAND. 505

sum of one halfpenny in the pound sterling upon the value of the
land brought under the Act.

(2) Such value shall be ascertained by the oath or solemn affir-
mation of the applicant or proprietor.

(3) If the registrar is not satisfied as to the correctness of the
value so declared or sworn to, he may require a certificate of such
value under the hand of a sworn valuator, which certificate shall be
received as conclusive evidence for the purpose aforesaid.

(4) All sums collected under the foregoing provisions shall be
paid to the public account, to the credit of an account to be called
•■ the land assurance fund account."

186. Any person —

(a) who sustains loss or damage through any omission, mis-
take, or misfeasance of any registrar, or of any of his
officers or clerks, in the execution of their respective
duties; or

( b) Who is deprived of any land, or of any estate or interest
in land, through the bringing of the same under the Land
Transfer Acts, or by the registration of any other person
as proprietor of such land, or by any error, omission, or
misdescription in any certificate of title, or in any entry
or memorial in the register, or has sustained any loss or
damage by the wrongful inclusion of land in any certifi-
cate as aforesaid, and who by this Act is barred from
bringing an action for possession, or other action for the
recovery of such land, estate, or interest —

may bring an action against the registrar-general, as nominal defend-
ant, for recovery of damages.

187. In case the plaintiff recovers final judgment against such
nominal defendant, then the court or judge before whom such action
is tried shall certify to the minister of finance the fact of such judg-
ment and the amount of damages and costs recovered; and the said
minister thereupon, and upon the receipt of a warrant under the
hand of the Governor, shall pay the amount of such damages and costs
to the person recovering the same, and charge the same to the account
of the assurance fund.

188. (1) Notice in writing of every action against the registrar-
general, and of the cause thereof, and of the amount claimed, shall be
served upon the attorney-general, and also upon the registrar-general,
one month at least before "the commencement of such action.

(2) If the aforesaid officers concur that such claim ought to be
admitted, as to the whole or any part thereof, without suit or action,
and jointly certify to that effect, the Governor may issue his warrant
to the minister of finance for payment accordingly.

(3) If after notice of such admission has been served on the
claimant, his solicitor or agent, the claimant proceeds with such
action, and recovers no more than the amount admitted, he shall not
be entitled to recover any costs as against the nominal defendant, and
shall be liable to such defendant for the costs of defending the action,
in like manner as if judgment had been given for the defendant in
such action.

189. If in any such action judgment is given in favour of the
nominal defendant, or the plaintiff discontinues or becomes nonsuit,

506 APPENDIX OF STATUTES.

the plaintiff 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 other
actions.

[190-192: N. Z. 1885, ss. 182-184, Aust. Torr. Syst. 305, 306. J

193. The assurance fund shall not under any circumstances be
liable for compensation for any loss, damage, or deprivation occa-
sioned by any of the following things, notwithstanding that effect may
have been given to the same by entry on the register: —

(a) By the breach by a registered proprietor of any trust; or
(&) By the same land having been included in two or more
grants from the Crown; or

(d) By the registration of any instrument executed by any
person under any legal disability, unless the fact of such
disability was disclosed on the instrument by virtue of
which such person was registered as proprietor; qr

(e) By the improper exercise of any power of sale or re-
entry.

194. (1) No person shall, as against the registrar-general or the
assurance fund, be entitled to recover any greater amount for com-
pensation in respect of the loss or deprivation of any land, or of any
estate or interest therein, than the value of such land, estate, or
interest at the time of such deprivation, together with the value of
the messuages and tenements erected thereon and improvements made
thereto (if any) prior to the time of such deprivation, with interest
at the rate of five per centum per annum to the date of judgment re-
covered.

(2) In case the assurance fund for the time being is insufficient
to satisfy any claim, the deficiency shall be paid out of the consoli-
dated fund, and shall be a first charge upon the assurance fund.

195. No action for recovery of damages as aforesaid shall lie or
be sustained against the registrar-general, unless such action is com-
menced within the period of six years from the date when the right
to bring such action accrued; but any person being under the disabil-
ity of coverture, infancy, unsoundness of mind, or absence from New
Zealand, may bring such action within three years from the date on
which such disability ceased.

196. The plaintiff in any such action [&c, V. 1915, s. 256, ante p.
458.]

Protection of purchasers.

[197: V. 1915, s. 179, ante p. 441.]

198. (1) Nothing in this Act shall be so interpreted as to render
subject to action for recovery of damages, or for possession, or to
deprivation of the estate or interest in respect to which he is regis-
tered as proprietor, any purchaser or mortgagee bona fide for valuable
consideration of land under the provisions of this Act, on the ground
that his vendor or mortgagor may have been registered as proprietor
through fraud or error, or under any void or voidable instrument, or
may have derived from or through a person registered as proprietor

NEW ZEALAND. 50 7

through fraud or error, or under any void or voidable instrument, and
this whether such fraud or error consists in wrong description of the
boundaries, or of the parcels of any land, or otherwise howsoever.

(2) This section shall be read subject to the provisions of sections
70 and 72 hereof.

[199-206: N. Z. 1885, ss. 191-198, Aust. Torr. Syst, 308, 309.]
207. Any three or more of the judges of the Supreme Court, of
whom the chief justice shall be one, may from time to time make rules
and orders for regulating proceedings in the Supreme Court under
this Act: provided that such rules and orders shall be subject to the
approval of the Governor in Council.

Offences.
[208-212: N. Z. 1885, ss. 200-204, Aust. Torr. Syst. 309, 310.]
Land-brokers and valuators. Miscellaneous.

213. (1) The registrar-general may, with the sanction of the
Governor, license fit and proper persons to be land-brokers for trans-
acting business under this Act; and, with like sanction, may from
time to time prescribe the charges recoverable by such brokers for
such business, by any scale not exceeding the charges specified in the
eighth schedule hereto; and for every such license may charge and
receive the fee of five pounds annually.

(2) Every such license shall continue in force until the thirty-
first day of December next after the date thereof.

[214, 215: N. Z. 1885, ss. 205, 206, Aust. Torr. Syst. 310.]

216. Any person who, not being the holder of a license as a land-
broker under this Act, or of a certificate for the time being in force to
the effect that he is on the roll of the Supreme Court as a barrister or
solicitor thereof, transacts business for fee or reward under this Act,
or wilfully and falsely pretends to be entitled to transact such business,
is for each offence liable to a fine not exceeding fifty pounds.

[217-219: N. Z. 1885, ss. 209-211, Aust. Torr. Syst. 311.]

220. No application or instrument, for which a form is prescribed
by any of the schedules to this Act, shall be received or registered
unless written upon a printed form supplied by the stamp office or
approved by the registrar, unless such application or instrument is
executed under circumstances which, in the opinion of the registrar,
reasonably excuse the omission to use such printed form.

221. The registrar-general may from time to time make such
variations in the forms prescribed in the schedules hereto as he deems
necessary or expedient, and every form authenticated by his seal, or
by the seal of the registrar of the district within which the same is
used, shall be taken to be a duly authorized form, unless the con-
trary is proved.

222. In any form under this Act the description of any person as
proprietor, transferor, transferee, mortgagor, mortgagee, lessor or
lessee, or as trustee, or as seised of, having, or taking any estate or
interest in any land, shall be deemed to include the heirs, executors,
administrators, and assigns of such person.

223. (1) Where a form in any of the schedules hereto is directed
to be used, such direction shall apply equally to any form to the like

508 APPENDIX OF STATUTES.

effect, signed by a registrar or stamped with his seal, or which for
the same purpose may be authorized in conformity with this Act.

(2) Any variation from such forms, not being in matter of sub-
stance, shall not affect their validity or regularity, but they may be
used with such alterations as the character of the parties or circum-
stances of the case render necessary.

[224-228: N. Z. 1885, ss. 216-220, &c, Aust. Torr. Syst. 312, 330.]

229. The special provisions contained in the several Appendices
I, II, and III annexed to this Act are hereby enacted, and shall be
deemed to form part of this Act.

230. Where by any unrepealed Act any act, matter, or thing is
authorized to be done, or any memorial is authorized or directed to
be registered under any former Land Transfer Act, such act, matter, or
thing may be done, or such memorial registered, under this Act, unless
the same is inconsistent with the express provisions hereof.

231. Where in any unrepealed Act, or in any deed, instrument,
or other document made before the coming into operation of this Act,
reference is made to any former Land Transfer Act, such reference
shall be construed and shall operate as if it had been made to this Act,
or to such of the provisions of this Act as correspond to those of the
Act so referred to.

APPENDICES (s. 229).

Appendix I.

Public reserves and other public lands.

Appendix II.
Canterbury Educational Reserves.

Appendix III.

Unincorporated building societies— Mortgages.

[See N. Z. 1885, Appendices, Aust. Torr. Syst. 314-316J

SCHEDULES.

[The only schedules partly printed here are schs. 4 and 5. For
those that are not here printed, see N. Z.1885 and 1902, Aust. Torr.
Syst. 316 et seq., 1045-1048.]

NEW ZEALAND. 509

FOURTH SCHEDULE.
Covenants, conditions, and powers implied in mortgages.
[s. 103 ante, p. 491.]

[Clauses 1-11: N. Z. 1902, sen. 2, Aust. Torr. Syst. 1046, 1047.]

(12) That the mortgagee will, on payment by the mortgagor of
all moneys due under the mortgage at the time and in the manner
mentioned in the mortgage for payment of the principal sum, or at
any time thereafter on payment of all moneys then due (three clear
months' notice of the intention to pay the same having been given),
return to the mortgagor the instrument of mortgage, having endorsed
thereon or annexed thereto a memorandum of discharge as provided in
section 116 of the Land Transfer Act 1915, together with all instru-
ments and documents deposited with the mortgagee on account of the
mortgage.

(13) The expressions " mortgagor " and " mortgagee " in the above
provisions shall, where such meaning is not inconsistent with the con-
text, extend to and include the executors, administrators, and assigns
of the mortgagor and mortgagee respectively.

FIFTH SCHEDULE.
(1) Memorandum of increase or reduction of mortgage debt.
[N. Z. 1902.. sch. 3, Aust. Torr. Syst. 1048.]

(2) Memorandum of increase or reduction in rate of interest.

The rate of interest payable under the within- [or above-] written
[or annexed] mortgage is hereby increased [or reduced] to £ per

annum.

Dated this day of , 19 .

A. B., Mortgagor.
Witness to the signature of the said A. B., as mortgagor:
E. F.,
[Occupation and address.]

C. D., Mortgagee.
Witness to the signature of the said C. D. as mortgagee:
G. H.,
[Occupation and address].

(3) Memorandum of renewal, shortening, or extension of term or
currency of mortgage.

The term or currency of the within- [or above-] written [or an-
nexed] mortgage is hereby renewed, shortened, or extended to
the day of , 19 , [or as the case may be].

Dated this day of , 19

A. B., Mortgagor.
Witness to the signature of the said A. B., as mortgagor:
E. F.,
[Occupation and address].

C. D., Mortgagee.
Witness to the signature of the said C. D. as mortgagee:
G. H.,
[Occupation and address].

510 APPENDIX OF STATUTES.

FIJI.

Real Property Ordinance, 1876

(No. 7 of 1876).

[1906 Edition of Statutes.]

An Ordinance to provide for the transfer of land by registration of
titles.

list March, 1877].
[This, the statute referred to in the text, is the Ordinance as it
appears in the new Edition of the Statutes published in 1906. It is
merely a consolidation of the three Ordinances of 1876, 1883, and
1892; the sections of the new statute are numbered to correspond with
those of the original Ordinance of 1876 (No. 24), the amending Or-
dinances being incorporated in their proper places. All those Or-
dinances are printed in Aust. Torr; Syst. 668 et seq., 704 et seq., and
708. Ss. 126 and 127 of the original 1876 statute do not appear in the
present statute, which consists of 125 sections only.]

FEDERATED MALAY STATES. 5H

FEDERATED MALAY STATES.

Registration of Titles Enactment 1911
(Enactment No. 13 of 1911).

Note. — This federal statute (a consolidation of the State statutes
mentioned in sch. 1) is an adaptation of the Fiji statute, omitting the
sections specially relating to fee simple, fee tail, and life estates (as
well as all reference to fee simple elsewhere), and the sections relat-
ing to bankruptcy and recovery of land from tenants, but adding one
important section on the subject of statutory assurances, and also
several sections providing for the registration of State leases. An-
other difference is that the word " charge," &c. is substituted for the
word " mortgage," &c. Only those sections are here printed which
differ materially from the Fiji statute.

An Enactment to consolidate the laic regarding the Transfer of Land
by Registration of Titles.

124th November, 1911.]
IT is hereby enacted by the Rulers of the Federated Malay States
in Council as follows:

PART I.— Preliminary.

1. (i) This Enactment may be cited as The Registration of Titles
Enactment 1911, and shall come into operation upon [1st October.
1913].

(ii) Nothing in this Enactment contained shall apply to leases
issued under any law in force for the time being relating to mining.

(iii) The Enactments specified in the first schedule hereto are
hereby repealed [saving past operation].

(iv) All appointments made under the provisions of any of the
Enactments hereby repealed shall be deemed to have been made
under this Enactment.

2. In this Enactment, unless there be something repugnant in the
subject or context —

The words " the State " mean with reference to any particular
piece of land, or any right, title or interest therein, or any duty or
obligation connected therewith, or any matter whatsoever incidental
thereto, the State in which such land is situated, and the words " the
Ruler " and " the Resident " mean, respectively, the Ruler or Rulers
of that State and the Resident of that State.

" Charge " means any charge created on land for the purpose of
securing the payment of money, and also the instrument by which the
charge is created.

" Chargee " means the person in whose favour a charge is created,
and includes the person for the time being entitled to the benefit of
such charge.

" Collector " means the Collector of land revenue, or any other
officer for the time being in charge of the land administration of a
district.

" The Court " means the Court of a Judicial Commissioner.

512 APPENDIX OF STATUTES.

" Dealing " means any transaction, of whatever nature, by which
land is affected under this Enactment, or under any Enactment
hereby repealed.

" Grant " means a grant of State land issued by or under the
authority of the Ruler of the State, and includes a lease of State land
in perpetuity or for a term of not less than 999 years.

" Land " means land which was originally comprised in a grant,
or in any such lease as is referred to in section 27, or for which a certi-
ficate of title has been issued under this Enactment or under any of
the Enactments hereby repealed, and includes things attached to the
earth or permanently fastened to anything attached to the earth.

" Lunatic " means any person who has been found by the Court
to be incapable of managing his own affairs.

" Memorial " means the entry, signed by the registrar on the
grant or certificate of title embodied in the register, of any instrument
presented for registration, with the time of registration.

" Person of Unsound mind " means any person who, though not
having been found a lunatic by the Court, is, in fact, incapable of
managing his own affairs.

" Proprietor " means the person or corporation registered under
this Enactment, or under any of the Enactments hereby repealed, as
the owner of land.

" Register " means the register of titles to land, kept in accord-
ance with any of the Enactments hereby repealed, or to be kept in
accordance with this Enactment.

" Registrar " means a registrar of titles appointed under this
Enactment, and includes " deputy registrar."

The words " the registrar " mean with reference to any particular
piece of land, or any right, title or interest therein, or any duty or
obligation connected therewith, or any matter whatsoever incidental
thereto, the registrar of the State or registration district in which
such land is situated.

" Registration district " means a district created by the Resident
under section 3 of this Enactment, or under any of the Enactments
hereby repealed.

" Representative " means the person authorized by law to repre-
sent the estate of a person who is dead, or lunatic or otherwise under
incapacity, and " certificate of representation " means the order of
Court or other document by which such representative is appointed.

" Transfer," used in connexion with land or a charge, means the
passing of such land or charge by act of the parties and not by opera-
tion of law, and also the instrument by which such passing is effected.

" Transmission," used in connexion with land or a charge, means
the passing of such land or charge by operation of law — as, for ex-
ample, on the death of the person entitled to such land or charge.

" Treasurer " means a State treasurer or district treasurer, as the
case may require.

PART II. — Creation of Districts and Appointment, Powers and

Duties of Officers.

3. In each State the Resident may, by warrant under his hand
and seal, divide the State into districts for the purposes of this Enact-
ment, and appoint, either for the State or for each such district, a

FEDERATED MALAY STATES. 513

registrar of titles, and such deputy registrars and other officers as he
may think necessary for carrying out this Enactment.

4. Every registrar shall have a seal of office, with which he shall
seal all certificates of title issued by him, and stamp all instruments
presented to him for the purpose of authorizing an act of registration.

PART III. — Government Grants, Trusts, Transfers and Transmissions

of Land.

5. After the coming into operation of this Enactment, and subject
to the provisions of sub-section (ii) of section 1 hereof, all land which
is comprised in any grant, whether issued prior or subsequent to the
coming into operation of this Enactment, shall be subject to this
Enactment, and shall not be capable of being transferred, transmitted,
mortgaged, charged, or otherwise dealt with except in accordance
with the provisions of this Enactment, and every attempt to transfer,
transmit, mortgage, charge, or otherwise deal with the same, except
as aforesaid, shall be null and void and of no effect, and, in particular,
the provisions of part VIII relating to the enforcement of charges
shall extend and apply to mortgages of land which have been executed
before the coming into operation of this Enactment, so that the pow-
ers in such mortgages mentioned shall only be exercisable in accord-
ance with the provisions of part VIII, or as near thereto as circum-
stances admit.

6. Grants shall be in duplicate, and every grant, in addition to
proper words of description, shall contain a diagram of the land on
such scale as the Resident may from time to time direct. The dupli-
cate shall be delivered out of the collector's office to the registrar of
the State or of the registration district in which the land is situated,
who shall register the grant in manner hereinafter directed, and
thereafter deliver one of such duplicates to the collector for issue
to the grantee, and retain the other to be bound up in the register as
hereinafter directed.

[7-12: Fi. 1876 (1906), ss. 13. 14, 16, 20-22. Aust. Torr. Syst. 670-
672.]

13. All land shall, upon the death of the proprietor, pass to and
become vested in his representative.

14. Land held in trust, transmitted under the last preceding
section, shall continue to be subject to all trusts to which it was
subject at the time of the death of the proprietor, and all other land
so transmitted shall be included by the representative in his inventory
and account, and shall, with the other property of the deceased, be
disposable for payment of debts or otherwise, according to the law or
custom of the State in which the land is situated.

[15-17: Fi. 1876 (1906), ss. 27-29, Aust. Torr. Syst. 672, 673.]

PART IV. — Registration of Titles, Mode of Registration, Effect of

Registration.

[18-26: Fi. 1876 (1906), ss. 32-40, Aust. Torr. Syst. 673-675. S. 21
(Fi. 35) omits reference to "effect of a deed"; s. 25 (Fi. 39), omits
reference to two instruments being " presented at the same time."]

r.t.l. — 33

514 APPENDIX OF STATUTES.

PART V. — Special Provisions regarding certain Leases of State Land.

27. Every registrar of titles appointed under the provisions of
this Enactment shall keep a book to be called the " register of leases
of State land," and shall bind up therein the duplicates of all leases
issued under section 24 of The Land Enactment 1911, for land situ-
ated within the State or registration district for which he is ap-
pointed, and of all certificates of title issued as hereinafter in this
part provided in pursuance of such leases.

For the purposes of this part leases issued under the provisions
of the repealed sections 25a and 22a of the Land Enactments 1903, of
Perak, Selangor, Negri Sembilan and Pahang, shall be deemed to be
leases issued under the provisions of section 24 of the Land Enactment
1911.

28. The provisions of the other parts of this Enactment shall,
with the necessary modifications, apply to every such lease as is in
this part hereinbefore referred to, in the same manner and to the same
extent as if such lease were a grant within the meaning of this Enact-
ment, subject to the following provisos —

(a) Where reference is made to " the register," such reference
shall be deemed to be the register required to be kept
under the last preceding section;

(o) The terms "proprietor" and "owner" shall be construed
as referring to the person registered as lessee, and the
term " lease," with its grammatical variations and cognate
expressions, shall be construed as meaning sub-lease;

(c) Nothing in this Enactment contained shall operate to vest
in any person by transfer, transmission or otherwise
howsoever, any interest in the land leased greater than
is conveyed by the terms of the lease, or for a period
extending beyond that limited by the terms of the lease;

(d) Certificates of title, issued in pursuance of the leases re-
ferred to in the last preceding section, shall be substan-
tially in the form B contained in the second schedule, and
shall be taken by all courts as conclusive evidence that
there is vested in the person named therein all such
interest in the land leased as is conveyed by the terms
of the lease, subject to the conditions and agreements ex-
pressed or implied therein, and the title of such person
shall not be subject to challenge except on the grounds
specified in section 8:

(e) The forms contained in the second schedule shall, when
used for the purposes of leases referred to in the last
preceding section, be subject to such modifications as cir-
cumstances may require, or as the Resident may, with the
approval of the chief secretary to Government, from time
to time prescribe.

PART VI. — Transfers.

29. When land is intended to be transferred, the registered pro-
prietor, or if such proprietor is a minor or of unsound mind the guar-
dian, next friend or other person appointed by the Court to act on
behalf of the minor or person of unsound mind in the matter, may

FEDERATED MALAY STATES. 515

execute a transfer in the form C contained in the second schedule,
which transfer shall, for description of the land intended to be dealt
with, refer to the grant or 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 land intended to be transferred,
and a memorandum of all leases and charges to which the same may
be subject, and of all rights of way and easements intended to be con-
veyed, and such transfer, if it be endorsed on the instrument evidenc-
ing the title of any transferor, need not be in duplicate.

30 [Am. 1913, s. 2]. [Fi. 1876 (1906), s. 43, Aust. Torr. Syst. 675.
adding:] and any memorial so entered, whether before or after the
commencement of this Enactment, of a genuine transfer of land by
the proprietor thereof, or if such proprietor is a minor or of unsound
mind, by the guardian, next friend, or other person appointed by the
Court to act on behalf of the minor or person of unsound mind in
the matter, to a purchaser, shall in favour of the transferee named in
the said memorial have in all respects the same force and effect which
by virtue of section 8 appertain to the duplicate certificate of title, in
section 8 referred to, in favour of the person therein named as pro-
prietor of the land.

31 [(i): Fi. 1876 (1906), s. 44 Aust. Torr. Syst. 675.]

(ii) Where part only of the land contained in a grant or certificate
of title is transferred, the registrar shall apportion the quit-rent or
other annual payments payable to the State in respect of such land,
and shall enter on the certificate of title, issued by him to the trans-
feree and transferor respectively, the amounts thenceforward payable
in respect of the part transferred and the balance, respectively: pro-
vided that the sum so payable annually in respect of any sub-division
shall in no case be less than fifty cents.

(iii) If either party is dissatisfied with the apportionment made
by the registrar, he may request the registrar in writing to refer the
question of apportionment to the Court, and the registrar shall there-
upon refer the same accordingly.

[32-35: Fi. 1876 (1906). ss. 45-48. Aust. Torr. Syst. 675, 676. 704,
substituting " charge " for " mortgage," &c, and omitting reference to
chose in action in last section (Fi.).]

PART VII.— Leases.

36. When any land is intended to be leased for any term exceed-
ing three years, the proprietor, or [&c, s. 29, ante p. 514.] shall
execute a lease in the form E contained in the second schedule, and
every such instrument shall, for description of the land intended to
be dealt with, refer to the grant or certificate of title of the land, or
shall give such other description as may be necessary to identify such
land: provided always that no lease of charged land shall be valid
and binding against the chargee unless such chargee shall have con-
sented in writing to such lease prior to the same being registered, and
that no lease for the period above specified shall be valid unless
registered.

37. Any lease or agreement for a lease, granted for a term not
exceeding three years, shall be valid without registration: provided
that no right to purchase the land contained in any such lease or

516 APPENDIX OF STATUTES.

agreement shall be valid as against any subsequent purchaser of the
land, unless such lease or agreement be registered.

[38, 39: Fi. 1876 (1906), ss. 51, 52, Aust. Torr. Syst. 676, 677,
omitting reference to extension in s. 51 (Fi.).]

40. [(i): Fi. 1876 (1906), s. 53 Aust. Torr. Syst. 677. J

(ii) There shall also be implied in any memorandum of lease
unless a contrary intention shall therein appear, the following agree-
ment by the lessor — viz., that he will pay all quit-rent which shall
become payable to the State during the continuance of the lease, in
respect of the property contained in the lease, and keep the lessee
indemnified against all claims and demands in respect of such quit-
rent or in respect of any charges on such property.

[41, 42: Fi. 1876 (1906), ss. 54, 56, Aust. Torr. Syst. 677, 678,
omitting reference to bankruptcy in s. 56 (Fi.).]

PART VIII.— Charges.

43. Whenever any land is intended to be charged or made secur-
ity in favour of any person, the proprietor, or [&c, s. 29, ante, p. 514.]
shall execute a charge in the form F (i) or F (ii) contained in the
second schedule, which must be registered as hereinbefore provided.

44. The chargee, upon default in payment of the principal sum
or any part thereof, or of any interest or periodical payment, secured
by any charge, may enter into possession of the charged land by
receiving the rents and profits thereof, or may distrain upon the
occupier or tenant of the said land for the rent then due.

[45-57: Fi. 1876 (1906). ss. 61, 63-69, 71-75, mutatis mutandis, and
(since "charge" covers both "mortgage" and "incumbrance")
omitting references to "incumbrance"' and "annuity"; Aust. Torr.
Syst. 679-681. 704, 705.]

PARTS IX, X. — Powers of Attorney. Registration Abstract.
[58-63: Fi. 1876 (1906), ss. 76-81, Aust. Torr. Syst. 682.]

PART XI. — Transmissions.

64. Whenever the proprietor of any land shall die, the represen-
tative of the deceased, proprietor shall, before any dealing with such
land, and subject to the provisions of section 81 of the Probate and
Administration Enactments 1904, make an application in writing to
the registrar of the State or registration district within which the
land is situated to be registered as proprietor, and shall produce to
the registrar the probate, letters of administration, or certificate of
representation, and thereupon the registrar shall enter in the register
a memorial of the date of the probate, letters of administration, or
certificate of representation, the date and hour of the production of
the same to him, the date of the death of such proprietor, when the
same can be ascertained, and shall add the words " as representative "
after the name of the person to whom such probate, letters of admin-
istration, or certificate of representation was granted, and upon such
entry being made, the representative shall, subject to the provisions
of the Probate and Administration Enactments 1904, he deemed to be

FEDERATED MALAY STATES. 517

the proprietor of such land, or such part thereof as shall for the time
being remain undisposed of, and the registrar shall note the fact of
such registration by memorandum under his hand on the probate,
letters of administration, or certificate of representation: provided
always that the title of the representative to such land shall relate
back, and take effect as from the date of the death of the deceased
proprietor.

65. Subject to this Enactment, and to the Probate and Adminis-
tration Enactments 1904, the land of any deceased proprietor disposed
of by his will shall be held by the representative according to the
dispositions of such will, but these shall not be registered, nor, sub-
ject as aforesaid, shall any person dealing with the said land have
any concern with the same.

66. Whenever any charge or lease affecting land shall be trans-
mitted in consequence of the death of the proprietor thereof, the pro-
bate, letters of administration, or certificate of representation, accom-
panied by an application in writing from the representative claiming
to be registered as proprietor in respect of such charge or lease, shall
be produced to the registrar, who shall thereupon enter in the register,
and on the instrument evidencing title to the charge or lease trans-
mitted, the date of the certificate of representation as aforesaid, the
date and hour of the production of the same to him, the date of the
death of such proprietor, when the same can be ascertained, with such
other particulars as he may deem necessary, and upon such entry being
made the representative shall be deemed to be the proprietor of such
charge or lease, and the registrar shall note the fact of such registra-
tion by memorandum under his hand on the certificate of represen-
tation.

67. Any person registered as the representative of a deceased
person shall hold the land in respect of which he is registered for the
purposes to which the same is applicable according to equity and good
conscience, and subject to any trusts upon which the deceased proprie-
tor held the same, but for the purpose of any registered dealings with
such land he shall, subject to the provisions of the Probate and Ad-
ministration Enactments 1904, and of this Enactment, be deemed to
be the absolute proprietor thereof.

68. No execution, or notice of sale for the recovery of any quit-
rent due to the State, shall affect any land until the registrar of the
State or of the registration district within which such land is situ-
ated shall be served with a copy of warrant of execution or notice of
sale, as the case may be, accompanied by a statement signed by any
party interested, or by his agent, or by the collector, specifying the
land sought to be affected thereby, and shall, after marking upon such
copy the time of such service, enter a notice thereof in the register.
Such entry shall operate as a caveat against any alienation other than
in pursuance of the said warrant or notice of sale, while the same
remains in force, and after any land so specified shall have been sold
under any such warrant or notice of sale the registrar shall, on
receiving a transfer thereof in one of the forms K (i), K (ii), K (iii).
K (iv), and K (v), contained in the second schedule, make an entry
thereof in the register, and on such entry being made the purchaser
shall be deemed the proprietor of such land: provided that until such
entry of notice shall have been made as aforesaid no sale or transfer

51b APPENDIX OF STATUTES.

under any such warrant or notice of sale shall be valid as against a
purchaser for valuable consideration, notwithstanding the purchaser
had actual notice of such warrant or notice of sale. Upon production
to the registrar of sufficient evidence of the satisfaction of any war-
rant, a copy whereof shall have been served as aforesaid, or of the pay-
ment of the arrear in respect of which the notice of sale, or copy
thereof, shall have been served as aforesaid, and of the interest and
expenses, he shall cause an entry to be made in the register to that
effect, and on such entry such warrant or notice of sale shall be deemed
to be satisfied. Every such warrant or notice of sale shall cease to affect
any land specified as aforesaid, unless a transfer upon a sale under
such warrant or notice of sale shall be registered within six months
from the day on which the copy is served.

[69: Fi. 1876 (1906), s. 92, Aust. Torr. Syst. 684.]

PART XII.— Caveats.

[70: Fi. 1876 (1906), s. 93, Aust. Torr. Syst. 685, 686. Add at
beginning before "may lodge": "of if such proprietor is a minor,"
&c, as in s. 29, ante p. 514. Omit final words after " sustained damage
thereby."]

PART XIII. — Attestation of Instruments.

71. (i) Every signature to an instrument requiring to be regis-
tered, and to a copy of attorney whereof a duplicate or an attested copy
is required to be deposited with the registrar, shall be attested by one
of the following persons:

(a) Within the Federated Malay States:
A magistrate;
A registrar of titles;
A collector of land revenue; or
An advocate and solicitor of the Supreme Court.
(6) In the Colony:

A justice of the peace; or

An advocate and solicitor of the Supreme Court of the
Colony.

in any British possession other than the Colony.
A notary public;
A commissioner of the Supreme Court of Judicature

empowered to take affidavit in such Court, or
The mayor or recorder or other chief officer of any city or

municipal corporation.

(d) In any other place:

The British consular officer; or

Any person specially appointed by the chief secretary to
Government in that behalf,
(ii) In all cases where an official holding a seal of office shall
attest any instrument, he shall authenticate his signature by his official
seal.

FEDERATED MALAY STATES. 519

PART XIV. — Special Jurisdiction of Court.
[72-78: Fi. 1876 (1906), ss. 96-102, Aust. Torr. Syst. 686-688 J

PART XV. — Special Powers and Duties of Registrar.

[79: Fi. 1876 (1906), s. 108. Aust. Torr. Syst. 689-691. In clause
(i) "eight acres" has been substituted for "eighty acres" in clause 9
of the Fiji statute.]

PART XVI. — Miscellaneous Provisions.

80. A lien may be created by deposit of the grant or certificate of
title. The holder shall have the power at any time during the exist-
ence of his lien to enter a caveat, in manner set forth in part XII
hereof, to prevent all dealing with the land, and when he has obtained
a judgment of the Court for the actual sum due, he shall be entitled to
apply for and obtain an immediate order of sale of the land.

[81-87: Fi. 1876 (1906), ss. 110-116. Aust. Torr. Syst. 691-693.J

88. Nothing contained in this Enactment shall take away or
affect the jurisdiction of the Court on the ground of actual fraud.

[89, 90: Fi. 1876 (1906), ss. 120, 121, Aust. Torr. Syst. 693 J

PART XVII.— Penalties.

First Schedule.

Enactments Repealed.

[These consist of statutes of the four States — Selangor, Perak.
Negri Sembilan, and Pahang: Registration of Titles statutes of 1891,
1897, 1898, and 1909; s. 81 (vii) of the Probate and Administration
Enactments 1904.]

Second Schedule.

Forms.

[The forms correspond generally with those in the schedule to the
Fiji statute.]

520 APPENDIX OF STATUTES.

ONTARIO.

Land Titles Act

(R. S. 1914, c. 126).

Note. — This statute (a revising or consolidating Act, with some
subsequent amendments here embodied) is for the most part an
adaptation of the English Land Transfer Act 1875, with some provi-
sions taken from the amending Act of 1897. Occasionally the English
enactments are reproduced almost literally, and these are then re-
ferred to as printed in Ownership and Incumbrance of Registered
Land; but in many instances local alterations have been so introduced
as to make mere reference to the English Act misleading. The sec-
tions altogether omitted mostly refer to matters of procedure. Where
reference is made to sections of the English Act, it must be borne in
mind that the words " owner " and " master of titles " are used in the
Ontario statute where the English statute has " proprietor " and
" registrar."

An Act to simplify titles and to facilitate the transfer of land.

2. This Act shall, subject to section 146, apply to the county of
York, including the city of Toronto, the county of Elgin, including the
city of St. Thomas, the county of Ontario, the city of Ottawa and the
county of Carleton, and to provisional judicial districts only, and the
land registries heretofore established for the said counties and dis-
tricts are hereby continued.

3. In this Act

(d) "Owner" shall mean owner in fee simple.

(/) " Proper master of titles " shall mean the master of titles
or local master in whose office the land affected or in-
tended to be affected by any proceeding, instrument or
document is or may be registered.

PART I. Entry of land on register of title.

6. (1) Any person entitled for his own benefit at law or in
equity to an estate in fee simple in land, whether or not subject to
incumbrances, or any person capable of disposing for his own benefit
by way of sale of an estate in fee simple in land, whether or not sub-
ject to incumbrances, may apply to the proper master of titles to be
registered under this Act, or to have registered in his stead any nomi-
nee as owner of such land, with an absolute, qualified or possessory
title, as the case may be.

(2) Any person who has contracted to buy for his own benefit an
estate in fee simple in land, whether or not subject to incumbrances,
may also apply if the vendor consents to the application.

(3) The attorney-general for Canada, or the attorney-general for
Ontario, may apply in like manner in respect to the title of the Crown
to any land; and the practice and procedure upon the application shall
be the same as in ordinary cases.

ONTARIO. 521

Trustees and mortgagees.

7. (1) Any person holding land on trust for sale, and any trustee,
mortgagee, or other person having a power of selling land, may
authorize the purchaser to make an application to be registered as
owner with any title with which an owner is authorized to be regis-
tered, and may consent to the performance of the contract being con-
ditional on his being so registered; or any of such persons, except a
mortgagee, may himself apply to be registered as such owner with the
consent of the persons (if any) whose consent is required to the
exercise by the applicant of his trust or power of sale.

(2) A mortgagee, having a power of selling land, may apply to
have the mortgagor or other person owning the equity of redemption
registered as owner with any such title.

(3) The amount of all costs, charges, and expenses properly
incurred by such person, in or about the application, shall be ascer-
tained and declared by the proper master of titles, and shall be
deemed to be costs, charges, and expenses properly incurred by such
person in the execution of his trust or in pursuance of his power; and
he may retain or reimburse the same to himself out of any money
coming to him under the trust or power, and he shall not be liable to
any account in respect thereof.

Part owners.

8. (1) Any two or more persons entitled concurrently or succes-
sively, or partly in one mode and partly in another, to such estates,
rights, or interests in land as together make up such an estate as
would, if vested in one person, entitle him to be registered as owner of
the land, may, subject as in this Act mentioned with respect to the
number of persons to be registered in respect of the same land, apply
to the proper master of titles to be registered as joint owners, in the
same manner and with the same incidents, so far as circumstances
admit, in and with which it is in this Act declared that an individual
owner may be registered.

(2) Where several persons are so registered as owners, the entry
may, if the parties so desire, define the estates, rights and interests,
other than trust estates, rights and interests, to which the owners are
respectively entitled, and such entry may be made either upon first
registration, or subsequently in case the estates, rights or interests so
arise.

(3) Persons entitled to several estates, as mentioned in sub-section
1, or owners who are tenants in common or joint tenants, shall be
entitled to take out one certificate in respect of the whole estate,
or each person may, when the extent of his interest is defined, take
out a certificate in respect of his own estate; but when a certificate for
the whole is outstanding no separate certificate shall be issued till
the outstanding certificate is returned and cancelled.

Absolute titles.

9. Where an absolute title is required, the applicant or his nomi-
nee shall not be registered as owner of the fee simple unless and
until the title is approved by the proper master of titles.

522 APPENDIX OF STATUTES.

[10: Eng. 1875, s. 7, Own. & Inc. 287. The concluding words are:
•' estates and interests of his Majesty, which are within the legislative
jurisdiction of Ontario. "J

Possessory titles.

11. Where a possessory title only is required, the applicant or
his nominee may be registered as owner of the fee simple on giving
such evidence of title, and serving such notices, if any, as may be
prescribed.

[12: Eng. 1875, s. 8, Own. & Inc. 288.]

Qualified titles.

[13. (1, 2, 3) : Eng. 1875, s. 9, Own. & Inc. 288.]

(4) Where the existence of any easement is proved the master
may, if he thinks fit, enter notice thereof on the register.

(5) Where title is shewn to any easement appurtenant to the
land being registered, the same may be stated in the entry and certifi-
cate of ownership.

Certificate of ownership.

14. On the entry of the name of the first registered owner of
freehold land on the register, the proper master of titles shall, if
required by the owner, deliver to him a certificate, in the prescribed
form, in this Act called a certificate of ownership, which shall state
whether the title of the owner therein mentioned is absolute, quali-
fied, or possessory.

15. (1) A certificate by the proper master of titles of the first
registration of an owner under this Act shall be registered in the
registry division in which the land is situate; and thereafter the
Registry Act shall cease to apply to such land.

(2) The certificate, besides describing the land, shall state the
date of the first registration, the number of the parcel and the register
in which the land is registered: and the registrar shall in his abstract
index enter the number of the parcel and the register as given in the
certificate.

PART II. Leasehold land.

16. [(1-4) : Eng. 1875, s. 11 (as originally enacted), Own. & Inc. 289,
290.]

(5) Section 7 shall apply to leasehold as well as to freehold land.

[17-21: Eng. 1875, ss. 12-16 (as originally enacted), Own. & Inc.
290-292. The concluding words of s. 18 are: "estates and interests of
his Majesty, which are within the legislative jurisdiction of Ontario."]

PART III. Registration, how' effected.

22. Z(a-c): Eng. 1875, s. 17 (1-3), Own. & Inc. 295.]

(d) It shall not be necessary to produce any evidence which,
by the Vendors and Purchasers Act is dispensed with as
between vendor and purchaser, or to produce or account

ONTARIO. 523

for the originals of any registered deeds, documents, or
instruments, unless the master otherwise directs;

(e) The master may receive and act upon any evidence which
is received in court on a question of title, or any evidence
which the practice of conveyancers authorizes to be re-
ceived on an investigation of a title out of court, or any
other evidence, whether the same is or is not receivable
or sufficient in point of strict law, or according to the
practice of conveyancers, if the same satisfies him of the
truth of the facts intended to be made out thereby;

(/) The master may refer to and act upon, not only the evi-
dence adduced before him in the proceeding in Which such
evidence is adduced, but also any evidence adduced before
him in any other proceeding wherein the facts to which
such evidence relates were or are in question.

24. (1) All registered land, unless the contrary is expressed on
the register, shall be subject to such of the following liabilities, rights,
and interests as for the time being may be subsisting in reference
thereto, and such liabilities, rights and interests shall not be deemed
incumbrances within the meaning of this Act;

(a) Provincial taxes and succession duty and municipal taxes,
charges, rates or assessments, and school or water rates;
(6) Any right of way, water-course, and right of water, and
other easements;

(c) Any title or lien which, by possession or improvements
the owner or person interested in any adjoining land has
acquired to or in respect of the registered land;

(d) Any lease or agreement for a lease, for a period yet to
run which does not exceed three years, where there is
actual occupation under it;

(e) Any right of the wife or husband of the person registered
as owner to dower or curtesy, as the case may be, in case
of surviving such owner;

(/) A mechanic's lien where the time limited for the registra-
tion thereof has not expired;

(g) Any right of expropriation, access, or user conferred by
statute, and any other right conferred upon or reserved
to the Crown by any statute.

(h) Any public highway.

(2) The description of the land in the entry of ownership shall
not, as against adjoining owners, be conclusive as to the boundaries or
extent thereof.

(3) Where a license under the Crown Timber Act, or any statute
for which that Act is substituted, has been or shall be granted, and
the land is registered under this Act, the same shall be deemed to
have been, and to be subject to the rights of the licensee or his assigns
for the current license year under the license, and to the rights of
his Majesty in the pine trees under the Public Lands Act, or any
statute for which that Act is substituted, without the fact of such
land being so subject being expressed in the entry in the register, or
in the certificate of ownership.

524 APPENDIX OF STATUTES.

25. (1) If the applicant desires the certificate to declare the title
to be free from the first five of the particulars mentioned in sub-section
1 of the next preceding section, or any of them, his application shall so
state, and the investigation shall proceed accordingly.

(2-4) Where the applicant desires that the land shall be regis-
tered free from any public highway, a notice so stating shall be pub-
lished [in newspapers, and served on official persons, and the question
may be litigated.]

(5) The master pending the final decision of the question may
register the applicant as owner, subject to any public highway, and
upon the final determination of the question if it is determined in
favour of the applicant, the entry and certificate of ownership shall be
varied in accordance therewith.

Mortgages existing at first registration.

26. (1) Where land is registered subject to mortgages existing
thereon at the time of the first registration, the mortgages shall be
noted in the register in the same order as they are registered in the
registry office if such mortgages have been so registered, or the dates
of the respective registrations thereof shall be stated, but this shall
not be taken as an affirmation that such mortgages rank in the order
in which they were registered, or in the order in which they are noted.

(2) Abstracts of all instruments dealing with such mortgages shall
thereafter be entered in the register, and the entry thereof shall be
deemed the registration of the instrument, and the rights of the par-
ties interested or claiming to be interested in any such mortgage so
far as it affects land under this Act shall, subject to sections 10 to 13
and 42 to 45, be decided under the registry law, as if the registrations
in the office of land titles had been made under the Registry Act.

Determination of incumbrances or leases existing at first registration.

27. [(1): Eng. 1875, s. 19 (as originally enacted), Own. & Inc.
300, adding " and thereupon the incumbrance shall cease."]

(2) On the requisition or certificate of a mortgagee whose mort-
gage was entered on the register on the first registration of the land,
or the registered assignee thereof, or of the personal representative
of such mortgagee or assignee, authorizing or certifying the discharge
of the whole or any part of the land therefrom, or the discharge of
the whole or any part of the money thereby secured, the master may
note on the register the discharge of such land from the mortgage, or
the discharge of such part of the money, and thereupon, as to the land
or money discharged, the incumbrance shall cease.

(3) The death of the person who signed the requisition or certifi-
cate shall not revoke or otherwise affect the same.

28. The proper master of titles, on proof to his satisfaction of the
determination of any lease of registered land existing at the first
registration, shall note in the prescribed manner on the register the
determination of such lease.

Adverse possession as against registered owner.
£29: Eng. 1875, s. 21 (now repealed), Own. & Inc. 302.]

PART IV. Transfer and charge of registered land.
Charge of registered land.

30. (1) Every registered owner may, in the prescribed manner,
charge the land with the payment at an appointed time of any princi-
pal sum of money, either with or without interest, or as security for
any other purpose, and with or without a power of sale.

(2) The charge shall be completed by the proper master of titles
entering on the register the person in whose favour the charge is
made as the owner of the charge, stating the amount of the principal
sum which the charge secures, with the rate of interest, and the
periods of payment, or the other purpose for which the charge is given.

(3) Where the charge contains a power of sale, that fact shall be
stated, but the particulars need not be set out in the register, nor shall
it be necessary to set forth incidental matters which may be expressly
charged, such as costs of inspection, or of abortive attempts to sell and
the like.

(4) The charge, when registered, shall confer upon the chargee a
charge upon the interest of the chargor as appearing in the register
subject to the incumbrances and qualifications to which such interest
is subject, but free from any unregistered interests in the land.

(5) The master shall also, if required, deliver to the owner of
the charge a certificate of charge in the prescribed form.

(6) The provisions of section 74 of the Registry Act shall apply
to the charge, as if it was a registered mortgage.

Registry Act (R. S. 1914, c. 124), s. 74. Every registered mort-
gage shall, as against the mortgagor, his heirs, executors, adminis-
trators, assigns, and every other person claiming by, through or under
him, be a security upon the land comprised therein to the extent of
the money or money's worth actually advanced or supplied under the
mortgage, not exceeding the amount for which such mortgage is ex-
pressed to be a security, notwithstanding that the money or money's
worth, or some part thereof, was advanced or supplied after the
registration of a conveyance, mortgage, or other instrument affecting
the mortgaged lands, executed by the mortgagor, his heirs, executors
or administrators, and registered subsequently to such first-mentioned
mortgage, unless before advancing or supplying such money or
money's worth the mortgagee in such first-mentioned mortgage had
actual notice of the execution and registration of such conveyance,
mortgage or other instrument; and the registration of such convey-
ance, mortgage, or other instrument after the registration of such
first-mentioned mortgage shall not constitute such actual notice.

31. (1) Where a registered charge is created, there shall be im-
plied on the part of the registered owner at the time of the creation
of the charge, his heirs, executors and administrators, unless there is
an entry on the register negativing the implication, covenants with
the registered owner for the time being of the charge:

(a) To pay the principal sum charged, and interest (if any)
thereon, at the appointed time and rate; and all taxes,
rates, charges, rents, statute labour, or other impositions
theretofore or thereafter imposed or charged on the land,
and that in case of default all payments made by the

526 APPENDIX OF STATUTES.

owner of the charge may be added to the principal sum
and bear interest;
(&) If the principal sum or any part thereof is unpaid at the
appointed time, to pay interest half-yearly at the ap-
pointed rate on so much of the principal sum as for the
time being remains unpaid.
(2) Where a charge, whether or not under seal, is expressed to
be made in pursuance of the Short Forms of Mortgages Act, or refers
thereto, and contains any form of words contained in clauses num-
bered 1, 2, 3, 7, 8, 12, 14, 15 or 16, of column one of schedule B to that
Act, whether expressed in the first or third person, such words shall
have the same meaning and effect as the words under the correspond-
ing number in column two in that schedule: and the provisions of that
Act shall apply to the charge.

[32, 33: Eng. 1875. ss. 24, 25, Own. & Inc. 307, 308.]

34. Subject to any entry to the contrary on the register, the
registered owner of a registered charge may enforce it by foreclosure
or sale, in the same manner and under the same circumstances in and
under which he might enforce the same if the land had been trans-
ferred to him by way of mortgage, subject to a proviso for redemption.

35. Subject to any entry to the contrary on the register, the
registered owner of a registered charge with a power of sale, in
accordance with the terms of the power, may sell and transfer the
interest in the land which is the subject of the charge, or any part
thereof, in the same manner as if he were the registered owner of the
land to the extent of such interest therein.

36. Subject to any entry to the contrary on the register, regis-
tered charges on the same land shall as between themselves rank
according to the order in which they are entered on the register, and
not according to the order in which they are created.

37. (1) The proper master of titles shall, on the requisition of
the registered owner of any land and on due proof of the satisfaction
of a charge thereon, or may on the requisition of the registered owner
of a charge or of his personal representative, or on his certificate of the
satisfaction thereof, note on the register in the prescribed manner, by
cancelling the original entry or otherwise, the cessation of the charge;
and thereupon the charge shall cease.

(2) The master may in like manner and with the like effect note
the cessation of any other incumbrance.

(3) On the requisition or certificate of the registered owner of a
charge, or of the personal representative of such owner, authoriz-
ing or certifying the discharge of any part of the land therefrom,
or the discharge of any part of the money thereby secured, the
master may note on the register the discharge of such land from the
charge, or the discharge of such part of the money, and thereupon as
to tne land or money discharged the charge shall cease.

(4) The death of the person who signed the requisition or cer-
tificate shall not revoke or otherwise affect the same.

Transfers after land is brought under this Act.

[38: Eng. 1875, s. 29, Own. & Inc: 313, substituting "certificate of
ownership " for " land certificate."]

ONTARIO. 52?

39. (1) Any person who is entitled to have a transfer or charge
entered on the register shall have the right to require the holder of the
certificate of ownership, if any is outstanding, to produce the certifi-
cate to the proper master of titles, or to deliver it to such person for
production, for the purpose of having all proper entries or alterations
made thereon by the master, or for cancellation when the certificate
has become effete.

(2) A person entitled to have a cessation of a charge entered
shall have the right to have an outstanding certificate of ownership
of the charge produced in like manner, in order that it may be can-
celled.

40. [Am. 1914, s. 2]. (1) Where upon an application for the reg-
istration of a charge, or of a transfer of any land or charge, the proper
master of titles considers it expedient to require the production of the
certificate of ownership, either for the purpose of identifying the
person dealing with the land or charge, or for cancellation when the
same ought to be cancelled, or for any other purpose, he may do so.
and may decline to enter the charge or transfer on tne register until
the certificate has been produced, and if the certificate is not produced
within such time as the master limits, he may return the transfer or
charge.

(2) Where a master declines to register an instrument on ac-
count of any deficiency or irregularity therein, or for want of evidence
deemed by him to be requisite, or for any other reason, and the person
desiring registration, after having been given such time as shall in
the master's opinion afford a reasonable opportunity to comply with
the master's requirements, fails to do so and fails to successfully
appeal from the master's decision, the master may proceed with other
registrations affecting the land, as if no such instrument had been
presented for registration, and he shall not be affected with notice of
the contents of any instrument which he has declined to register as
aforesaid.

41. Where registered land is transferred to trustees under the
Religious Institutions Act, the trustees shall be registered as owners
in the usual manner, and by their corporate name, without setting out
the purposes or trusts on which the land is held, but a note shall be
made by the proper master of titles that the land is only to be trans-
ferred or charged in accordance with the provisions of that Act.

42. A transfer for valuable consideration of land registered with
an absolute title, when registered, shall confer on the transferee an
estate in fee simple in the land transferred, together with all rights,
privileges and appurtenances belonging or appurtenant thereto, sub-
ject to:

(a) The incumbrances, if any, entered or noted on the reg-
ister; and
(6) Such liabilities, rights, and interests (if any) as are
declared for the purposes of the Act not to be incum-
brances, unless the contrary is expressed on the register,
and
As to such rights, privileges and appurtenances, subject also to
any qualification, limitation, or incumbrance to which the same are
expressed to be subject in the register, or where such rights, privileges,
and appurtenances are not registered, then subject to any qualification,

528 APPENDIX OF STATUTES.

limitation, or incumbrance to which the same are subject at the time
of the transfer; but free from all other estates and interests whatso-
ever, including estates and interests of his Majesty, which are within
the legislative jurisdiction of Ontario.

[43-45 : Eng. 1875, ss. 31-33, Own. & Inc. 314, as originally enacted J

Claims for dower.

46. (1) Where it is claimed that registered land is free from
dower, on account of the land being held in trust, or for some reason
other than the wife's release of her dower by an instrument which can
be produced and registered, and evidence to that effect which appears
satisfactory is produced before the proper master of titles, he may
issue a notice requiring the wife to support her right if she claims to
be entitled to dower in the land; and if she fails to do so the master
may enter on the register a memorandum that the land is free from
dower, and such entry shall, unless reversed on appeal, be a bar to
any claim by such wife; and no appeal shall lie, unless the wife claims
her right of dower before the master.

(2) This section shall also apply to the widow of a former owner.

47. Where registered land is transferred subject to a charge, or
where the registered owner of land which is subject to a charge sub-
sequently marries, the wife of the transferee or owner shall have the
same rights in respect of dower, as she would have had if the legal
estate had been transferred by an ordinary mortgage, and no others.

[48-53: Eng. 1875, ss. 34-39. Own. & Inc. 315-317, as originally
enacted. S. 49 differs slightly from Eng. s. 35: the transfer, "when
registered, shall vest in the transferee the land transferred for all the
leasehold estate described in the registered lease relating to such land
and then unexpired, with," &c. ; the concluding words are: "his
Majesty which are within the legislative jurisdiction of Ontario."]

Transfer of charges.

54. (1) The registered owner of a charge may, in the prescribed
manner, transfer such charge to another person as owner.

(2) The transfer shall be completed by the proper master of
titles entering on the register the transferee as owner of the charge
transferred.

(3) The transfer, when registered, shall confer upon the trans-
feree the ownership of the charge, free from any unregistered inter-
ests therein, and the transfer of part of the sum secured by a charge
shall confer upon the transferee the ownership of such part, free from
any unregistered interests therein.

(4) Every transfer of a charge shall be subject to the state of
account upon the charge between the chargor and the chargee.

(5) The master shall also, if required, deliver to the transferee a
fresh certificate of charge.

(6) The transferor shall be deemed to remain owner of such
charge, until the name of the transferee is entered on the register in
respect thereof.

(7) The registered owner of a charge may transfer a part of the
sum secured by the charge, and the part so transferred may be given

ONTARIO. 529

priority over the remaining part, or may be deferred, or may continue
to rank equally with it, as may be stated in the transfer.

Time of registration.

55. The day, hour, and minute of the receipt of each instrument
and copy of writ shall be noted thereon, and for the purpose of priority
between chargees, transferees and others, the time of the receipt shall
be deemed the time of registration.

Transmission of land and charges on owner's death.

[56. 57: Eng. 1875, ss. 41, 42, Own. & Inc. 333.]

58 [1918, s. 2]. Where two or more persons holding as tenants
in common have been entered as owners of any land or charge, and one
of them dies, his personal representative, or such other person as may
be entitled to the share of the deceased, may apply to be entered as
owner with the survivor or survivors.

£59, 60: Eng. 1875, ss. 46, 47. Own. & Inc. 334, 335, omitting refer-
ences to bankruptcy.]

61. Where an heir or devisee applies to be entered as owner of
any registered land which has vested in him under the Devolution of
Estates Act, the proper master of titles shall made such entry, without
reference to the liability of the land for debts, except under execu-
tions, copies of which have been duly lodged; and the liability under
that Act of such land, or any transferor thereof, shall be determined
as if such land had not been registered under this Act.

Executions and sale thereunder.

62. (1) The sheriff, or other officer to whom the same is directed,
forthwith after the delivery to him of any execution or other writ, or
renewal thereof, affecting registered land, upon written request of
the party by whom such execution or other writ was sued out or
renewed, or of his solicitor, but not otherwise, shall deliver or
transmit by registered post to the proper master of titles a copy of the
writ certified under his hand; and no registered land shall be bound
by any such writ until such copy has been received by the master;
and after the receipt by him of the copy, no transfer by the execution
debtor shall be effectual, except subject to the rights of the execution
creditor under the writ.

(2) The master shall keep a book in the prescribed form, in
which shall be entered a record of all writs, copies of which are re-
ceived by him from the sheriff or other officer.

(3) No sale or transfer under any such writ shall be valid as
against a person purchasing for valuable consideration before such
entry is made, notwithstanding that the purchaser may have had no-
tice of the writ.

(4) Upon production to the master of sufficient evidence of the
satisfaction of any such writ, he shall cause an entry to be made in
the book to that effect, and on such entry the writ shall be deemed to
be satisfied.

r.t.l. — 34

530 APPENDIX OF STATUTES.

(5) Every writ and renewal of a writ shall be presumed to have
been spent, and the delivery or transmission of a copy thereof shall
cease to have effect, at the expiration of the writ or renewal as appear-
ing on the copy transmitted; but if there has been a sufficient com-
mencement of the execution to enable it to be completed by the sale
and conveyance of the land under the writ, and the same has not been
completely executed, the sheriff or officer shall, or the execution credi-
tor may, at any time within one month before the expiration of the
writ or renewal as so appearing, file with the master a certificate of
the sheriff or officer stating that fact, and such certificate shall be
noted at the entry of the writ in the book, and the writ shall continue
in force for a further period of one year from the filing of the certifi-
cate, when it shall cease to have effect, unless another similar certifi-
cate is filed, which shall operate in like manner.

(6) Where an execution or other writ is issued against the reg-
istered owner under a different name from that under which he is
registered, the writ shall have no effect under this Act, unless the
person who sues out the writ, or his solicitor, gives a notice to the
master, stating the name under which the execution debtor is regis-
tered, and otherwise in the form or to the effect prescribed, or unless
a like notice is written upon the copy of the writ.

(7) The sheriff or other officer shall be entitled to a fee of fifty
cents for each copy of writ or certificate transmitted by him.

63. Where a transferor or transferee of land, or maker or owner
of a charge, claims that a writ apparently affecting land does not affect
the land or charge, he shall produce such evidence thereof as the
proper master of titles may consider necessary, and the master may
require all parties interested to be notified of the application to reg-
ister freed from the writ, and may himself decide the question, or
may direct an issue to be tried or a case to be stated, and may make
such order as to costs as he deems just.

64. (1) The seizure under execution or other process of a mort-
gage or charge, or of leasehold land, registered under this Act, shall
not take effect until a certificate of the sheriff or other officer, that he
has taken such mortgage, charge, or leasehold land under such process
against the registered owner thereof, is lodged with the proper master
of titles.

(2) The certificate shall state the number of the parcel under
which the land affected is registered, and the name of the owner, and
shall be noted by the master in the register.

(3) This section shall not apply where the proceedings prescribed
by section 25 of the Execution Act have been taken with respect to a
mortgage or charge.

65. Where any registered freehold or leasehold land is sold under
execution or other process, the proper master of titles, upon the pro-
duction to him of the transfer of the same by the sheriff or other officer
in the prescribed form, with proof of the due execution thereof, shall
cause a notice to be mailed to the proper post-office address of the
person whose interest has been sold; and after the expiration of two
weeks from the mailing of the notice, and if no other person has
become entitled meanwhile for want of entry of the writ or otherwise,
the master shall register the purchaser as owner, and shall, if required,
issue to him a certificate of ownership in the prescribed form.

OyTARIO. 531

Sale for taxes.

66 [1914, s. 2]. (1) Where land is sold for taxes, the purchaser
may at any time after the sale lodge a caution against the transfer of
the land; and upon the completion of the time allowed by law for
redemption, and upon the production of the transfer of the land in the
prescribed form, with proof of the due execution thereof by the proper
officer, the proper master of titles shall cause a notice to be mailed
to the proper post-office address of the persons who appear upon the
register to be interested in the land, or served upon them, or any of
them, personally; and after the expiration of three months from the
mailing or service of the notice, shall, if no other person has become
entitled by priority of registration, register the purchaser at the sale
as owner of the land, with an absolute title; and shall, if required,
issue to him a certificate of ownership in the prescribed form, unless
the registration is in the meantime stayed by order of the Court, and in
that case the registration shall not be made, nor shall the certificate
be issued, except in accordance with the order and direction of the
Court.

(2) If any person appearing upon the register to be interested in
the land acquired such interest after the tax sale, the notice to be
given to him shall require him, if he objects to the registration of the
tax purchaser as owner, or if having a charge only he claims priority
for such charge, to file his objection or claim verified by affidavit with
the proper master before the expiration of one month from the mailing
or other service of the notice, and subject to section 140, such master
shall hear and determine such objection or claim upon notice to the
parties interested, and registration shall be made in accordance with
the final determination of the matter.

(3) Where a tax purchaser fails to lodge a caution, or to lodge his
deed for registration, prior to the registration of the title of a pur-
chaser or chargee, claiming from or through the person who was the
registered owner at the time of the tax sale for valuable consideration,
and without actual notice of the tax sale, he shall lose his priority.

(4) Where it is made to appear to the master that the purchaser
has so dealt with the land that a mechanic's lien has, or probably has,
attached thereto subsequent to the sale, and a claim of lien has been
registered against the land, the master may register the purchaser's
title as subject to the claim of lien.

Cessation of mechanics' liens.

67. On its appearing to the satisfaction of the proper master of
titles that a lien under the Mechanics' and Wage Earners' Lien Act has
ceased to exist, the master may make an entry accordingly, or an entry
cancelling the claim; and the land affected shall thereby be released
from the claim.

PART V. Other dealings with registered land.
Registered owner only may make registered disposition.

68. (1) No person other than the registered owner shall be en-
titled to transfer or charge registered freehold or leasehold land by a
registpred disposition.

532 APPENDIX OF STATUTES.

(2) Subject to the maintenance of the estate and right of such
owner, any person, having a sufficient estate or interest in the land,
may create estates, rights, interests and equities, in the same manner
as he might do if the land were not registered.

(3) Any person entitled to or interested in any unregistered
estates, rights, interests, or equities in registered land may protect the
same from being impaired by any act of the registered owner, by
entering on the register such notices, cautions, inhibitions, or other
restrictions as are authorized by this Act.

(4) No person other than the registered owner thereof shall be
entitled to transfer a registered charge by a registered disposition;
but, subject to the maintenance of the right of such owner, unregis-
tered interests in a registered charge may be created in the same
manner, and with the same incidents, so far as the difference of the
subject matter admits, in and with which unregistered estates and
interests may be created in registered land.

Right to registration. ,

69. (1) Every transfer or charge signed by a registered owner,
or others claiming by transfer through or under him, purporting to
transfer or charge freehold or leasehold land, or an interest therein,
capable of being registered, or purporting to transfer a charge, shall,
until cut out by a conflicting registration, confer upon the person in-
tended to take under such transfer or charge a right to be registered
as the owner of such land or charge, and where a person applies to
be registered under this section, the proper master of titles may either
forthwith, or after requiring such notices to be given as he deems
expedient, register such applicant as owner, subject to such incum-
brances (if any) as the condition of the title requires, notwithstand-
ing that the transfer or charge has been executed or bears date prior
to the entry of such transferor or chargor as the owner of the land or
charge.

(2) Any person claiming to be entitled to freehold or leasehold
land, or to an interest therein, capable of being registered, or to a
charge, as devisee, heir, executor or administrator of a person who
might have been registered under sub-section 1, or any person claiming
through or under such devisee, heir, executor or administrator, may
apply to be registered as owner of such land, interest or charge, and if
no conflicting registration has been made, may be so registered subject
to the provisions of this section.

(3) On registering the applicant, the master shall, so far as
practicable, enter on the register short particulars of every instrument
or other title under which the right is conferred, as if such instru-
ment had been duly presented for registration, or application for
entry of transmission had been made in the proper order of time, and
as a preliminary step to the registration of the applicant, may enter
any intermediate transferee, heir, executor or administrator, as reg-
istered owner, where that method is more convenient.

(4) No application by a person claiming through or under a
deceased person shall be allowed, unless all the persons entitled to the
whole of the estate of the deceased in the land are to be entered as
owners.

OyTARIO. 533

(5) The master may in like manner enter as owner of freehold
or leasehold land, or of a charge, any person who is entitled to such
land or charge through the death of the owner, although the deceased
had not been registered as owner, or any person who is entitled by
virtue of the exercise of any power conferred by a statute, will, deed,
or other instrument, whether the person so entitled claims directly
from the deceased, or directly under the power, or through any other
person entitled by virtue of the death or power, or through a succes-
sion of transfers or transmissions.

(6) Where under an order of court any freehold or leasehold
land, or a charge, is vested in any person, the master shall on due
proof of the order make such entries in the register as are necessary
to give effect thereto, but if any person whose estate is affected by the
order is not shewn by the order to be a party to the cause or matter in
which the order was made, the applicant shall furnish such evidence
as is requisite to shew that he is bound thereby.

(7) Where any street, road, or lane laid out on a plan registered
in a land titles office has become a public highway, and has thereby
become vested in a municipal corporation, the corporation may apply
to the proper master to be entered as the owner thereof.

(8) Where a highway or part of it has been closed by the action
of a municipal council, and such highway or part of it has been trans-
ferred by the municipal corporation without the corporation having
been entered as owner of it, the transferee may apply to be entered as
owner of the highway or part of it transferred to him, and upon due
proof of the facts the master may enter such transferee as owner.

Notice of lease.

70. (1) Any lessee or other person entitled to or interested in a
lease or agreement for a lease of registered land, where the term is for
a life or lives, or is determinable on a life or lives, or where the period
of the lease or agreement yet to run is three years or upwards, or where
the occupation is not in accordance with such lease or agreement,
may apply to the proper master of titles to register notice of such
lease or agreement in the prescribed manner.

(2) Where the lease is by the registered owner of the land, the
master may without notice to him enter on the register such notice
thereof as he deems necessary.

(3) Where the lease is not by the registered owner but his title
appears to be subject thereto, or in the case of an agreement for a
lease, the master upon notice to such owner may enter notice of the
lease or agreement on the register.

(4) The applicant shall deliver to the master the original lease or
agreement, or a copy thereof; and if the application is granted the
master shall make a note on the register identifying the lease or agree-
ment or copy so deposited, and the lease or agreement or copy so
deposited shall be deemed to be the instrument of which notice is
given.

(5) If the registered owner concurs in a registration under sub-
section 2 or sub-section 3, notice may be entered in such manner as
may be agreed upon.

(6) When so registered every registered owner of the land, and
every person deriving title through him. excepting owners of incum-

534 APPENDIX OF STATUTES.

brances registered prior to the registration of such notice, shall be
deemed to be affected with notice of the lease or agreement, as being an
incumbrance on the land in respect of which the notice is entered.

(7) Where notice of such lease or agreement has been registered
the master, on proof to his satisfaction of the determination of the
lease or agreement, shall in the prescribed manner note the determina-
tion on the register.

(8) Where a notice of a lease, or of an agreement for a lease, has
been registered under this section, a transferee or a chargee of the
lease or agreement may apply to have a notice of his transfer or
charge entered on the register.

(9) Unless the transferee or chargee has actual notice of a prior
transfer or charge, a transfer or charge in respect of which a notice
has been entered, shall take priority of one of which notice has not
been entered.

Notice of estates in dower or by the curtesy.

[71: Eng. 1875, s. 52, Own. & Inc. 344.]

Caution against registered dealings.

72 [Am. 1918, s. 3]. (1) Any person interested in any way in any
land or charge registered in the name of any other person, may apply
for the registration of a caution with the proper master of titles, to
the effect that no dealings with such land or charge be had on the part
of the registered owner, or other named person who is shown to have
an interest in the land, until notice has been served upon the cau-
tioner.

[(2) (3): Eng. 1875, s. 53, pars. 2, 3, Own. & Inc. 344, 345.]
(4) Every caution founded upon an execution, or upon an allega-
tion that a transfer, charge, or other dealing is fraudulent, shall be
renewed before the expiration of five years from the date of lodging
the same, otherwise it shall cease to have effect.

73 [Am. 1918, s. 41. (1), (2), (3) After any such caution has been
registered the' proper master of titles shall not [Eng. 1875, s. 54, Own. &
Inc. 345.]

(4) A notice to a cautioner shall not be required where the deal-
ing proposed to be registered is under the authority of a judgment or
order of court in a suit or proceeding to which the cautioner is a
party, or where such dealing is under a power of sale contained in a
charge or mortgage which is prior to the title under which the cau-
tioner claims, and the cautioner has been served with a notice of the
proposed exercise of the power of sale, and the caution is not in
respect of the exercise of the power of sale, or where the dealing is
of such a nature that it cannot detrimentally affect the interest of the
cautioner as claimed in the affidavit filed with his caution, or where
the transferee, chargee, or other person desiring the registration of
the dealing is willing that the same should be registered subject to
the continuance of the caution, and the master thinks fit so to register
it. Where a caution is continued such continuance shall prevent fur-
ther registration of dealings by the registered owner until after notice
to the cautioner, unless as in this section provided.

ONTARIO. :,3.~,

(4a) Where a caution only affects part of the land dealt with by
the transfer, charge or other instrument, the master may upon the
application in writing of the person desiring registration, or his solici-
tor, register the dealing as to the land not affected by the caution, and
may subsequently after notice to the cautioner, or with his consent,
register the dealing as to the remainder of the land dealt with by the
instrument, or any part thereof. The certificate of registration on the
instrument shall shew that the registration made in the first instance
covers only part of the land embraced in it.

(5) The master, upon receiving the consent of the cautioner to
the registration of a dealing, may discharge the caution, unless the
consent provides for its continuance, or he may dicharge the caution
as to the land or charge to which the dealing applies, but he shall not
do so where from the nature of the dealing he is of opinion that the
continuance of the caution is contemplated.

74. (1) Where the registered owner of any freehold or leasehold
land has executed a transfer or a charge thereof, but claims that on
account of special circumstances shown by affidavit the transferee or
chargee should not be registered without notice to the registered
owner, the proper master of titles may permit the registration of a
caution by the registered owner.

(2) The registration of such caution shall stay the registration of
the transfer, until such notice has been served on the cautioner in
accordance with the provisions of section 73.

75. [Eng. 1875, s. 55, Own. & Inc. 345. adding:] or may, instead
of taking the security, register such dealing subject to the caution, on
any condition which he thinks fit to impose as to security or otherwise,
or make such other order as he deems just.

76. A second caution by the same cautioner, or any other person
in respect of the same matter, shall not be lodged, or if lodged shall
not be entered, or have any effect without the special permission of the
proper master of titles, which may be given either upon terms or
without terms, as he may think proper.

Sale of standing timber.

77. Where timber standing upon registered land is sold under an
agreement in writing, the purchaser, instead of entering a caution,
may deposit the agreement wit^h the proper master of titles, and the
master, upon proof of the due execution thereof by the owner, shall
register the same as an incumbrance upon the land, by entering a
memorandum upon the register referring to the instrument and giving
shortly the effect thereof.

Inhibition against registered dealings.

Power of registered owner to impose restrictions.

[78. 79: Eng. 1875, ss. 57-59, as amended, Own. & Inc. 345-347 J

536 APPENDIX OF STATUTES.

PART VI. Supplemental provisions.

Notice of registered instruments.

80. No person, other than the parties thereto, shall be deemed to
have any notice of the contents of any instruments other than those
mentioned in the existing register of title of the parcel of land, or
which have been duly entered in the books of the office kept for the
entry of instruments received, or are in course of entry.

Caution against entry of land on register.

81 [Am. 1918, s. 5]. (1) Any person, having or claiming such an
interest in any unregistered land as entitles him to object to any
disposition thereof being made without his consent, may apply for
the registration of a caution with the proper master of titles to the
effect that the cautioner is entitled to notice in the prescribed form,
and to be served in the prescribed manner, of any application that may
be made for the registration of such land.

(2) Every caution under this section shall be renewed before the
expiration of five years from the date of lodging the same, otherwise
it shall cease to have effect.

(3) No caution registered under this section in respect of any
unpatented land shall be of any Validity, unless the description con-
tained therein specifies the land in accordance with the description
subsequently contained in the patent, or describes the same in such
manner that the master may know that the description in the caution
is intended to affect the land described in the patent.

Cautions as to actions pending.

83 [Am. 1918, s. 6]. After a caution has been registered in respect
tered, but any party to an action, or his solicitor, or any person claim-
ing to be interested in the action, may lodge a caution subject to the
same conditions as in other cases.

General provisions as to cautions.

83. [Am. 1918, s. 6]. After a caution has been registered in respect
of any unregistered land, and while the same is in force, registration
shall not be made of such land until notice has been served on the
cautioner to appear and oppose such registration, and until the pre-
scribed time has elapsed after the date of the service of such notice,
or the cautioner has appeared, whichever may first happen.

84. Every caution shall be supported by an affidavit in the pre-
scribed form, stating the nature of the interest of the cautioner, the
land to be affected by the caution, and such other matters as may be
prescribed.

Caution wrongfully lodged.

85. Any person who lodges a caution without reasonable cause
shall be liable to make to any person who may sustain damage by the
lodging of such caution such compensation as may be just; and such

OXTARIO. 537

compensation shall be deemed to be a debt due from the person who
has lodged the caution to the person who has sustained damage.

86. A caution shall not prejudice the claim or title of any person,
and shall have no effect except as in this Act provided.

Costs. Doubtful questions of law or fact.

£87, 88 (1), 89: Eng. 1875, ss. 73, 74, 76, 77, Own. & Inc. 359, 360,
3 64 J

Certificates of ownership, office copies of leases, and certificates of

charge.

[90-92: Eng. 1875. ss. 78-81, Own. & Inc. 365, as originally enacted;
substitute " certificate of ownership " for " land certificate."J

Incorporeal hereditaments, mining rights, and easements.

93. (1) The proper master of titles may register the owner of any
incorporeal hereditament of freehold tenure, enjoyed in gross, also the
owner of any mines or minerals where the ownership of the same has
been severed from the ownership of the land, in the same manner and
with the same incidents in and with which he is by this Act empowered
to register the owner of land, or as near thereto as circumstances
admit.

(2) Where an easement in or over unregistered land is granted as
appurtenant to registered land, the master, after such examination as
he deems necessary, may enter such easement in the register of the
dominant land with a declaration that the title thereto is absolute,
qualified or possessory, or otherwise as the case may require, and shall
cause to be registered in the proper registry division a certificate of
such entry.

(3) Where an easement in or over registered land is granted as
appurtenant to unregistered land, the master may issue a certificate
setting out such easement and the land to which it is appurtenant,
which may be registered in the registry division in which the land is
situate, and he shall note on the register that such certificate has been
issued.

94. (1) In the case of lands registered under this Act. no title to
any ores, mines, or minerals shall be held to have passed, or shall pass,
under section 3 of the Mines Act of 1892, or under section 3 of the Act
respecting Mines, being chapter 36 of the Revised Statutes of Ontario
1897, or under section 3 of the Act to amend the Mines Act [63 Vict.],
until the registered owner shall have had himself entered as owner of
such ores, mines or minerals, or until his transferee or chargee shall
have procured the master to make the entries authorized by sub-
section 3.

(2) In case of lands registered under this Act, no title to any ores,
mines, or minerals shall be held to have passed, or shall pass, under
chapters 16. 17, and 18 of the Acts [8 Edw. 7], or sections 53 and 54 of
the Public Lands Act, until the registered owner shall have furnished
to the proper master of titles a certificate of the minister of lands,
forests and mines, or of a deputy minister, that the same were at the
time of the passing of the said Acts the property of the Crown, and

538 APPENDIX OF STATUTES.

had not been staked out, recorded, leased, or granted under the Mining
Act of Ontario passed in [8 Edw. 7], or under any statutory regula-
tion previously in force, and until such owner shall have had himself
registered as owner of the mines, ores or minerals, or his transferee
or chargee shall have procured the master to make the entries author-
ized by the next sub-section.

(3) If any registered owner of lands shall have assumed to trans-
fer or charge any mines, ore's, or minerals reserved by the Crown and
coming within the said Acts, the transferee or chargee may furnish
to the said master the certificate of the minister or deputy minister as
above provided, and shall have the right to apply to be registered as
such transferee or chargee, and the said master may make all proper
entries in order to define the interests of the persons then appearing
to be entitled to the mines, ores or minerals, or any interest therein.

(4) No claim shall be sustained against the assurance fund in
respect of any right arising under any of the said Acts by reason of
any dealing with any ores, mines, or minerals which were prior to the
passing of such Act subject to the reservation thereof to the Crown.

General provisions.

95. (1) There shall not be entered on the register or be receivable
any notice of any trust, express, implied, or constructive.

(2) Describing the owner of any freehold or leasehold land or
of any charge as a trustee, whether the beneficiary or object of the

• trust is or is not nientioned, shall not be deemed a notice of a trust
within the meaning of this section, nor shall such description impose
upon any person dealing with such owner the duty of making any en-
quiry as to the power of the owner in respect of the land or charge, or
the money secured by the charge, or otherwise; but subject to the reg-
istration of any caution or inhibition, such owner may deal with the
land or charge as if such description had not been inserted.

(3) Where two or more owners are described as trustees, the pro-
perty shall be held to be vested in them as joint tenants, unless the
contrary is expressly stated.

(4) Nothing in this section shall prevent the registration of a
charge given by an incorporated company, for the purpose of securing
bonds or debentures of the company, but the registration of any such
charge shall not be deemed a guarantee that the proceedings necessary
to render the same valid have been duly taken.

96. (1) No person shall be registered as owner of any undivided
share in any freehold or leasehold land, or of any charge, apart from
the other share or shares.

(2) The share of each owner may be stated, and where the extent
of his interest appears on the register, or by the statement of nis co-
owners, he may transfer or charge, his share, or he may without such
statement transfer his share to his co-owners.

97. (1) Where the number of persons who may be registered as
the owners of the same freehold or leasehold land, or charge, is limited
by a rule, a number of persons exceeding the number prescribed shall
not be registered as owners of such land or charge; and if the number
of persons shewing title exceeds the prescribed number, such of them
not exceeding the prescribed number as may be agreed upon, or as

OXTARIO. 530

the proper master of titles in case of difference decides, shall be regis-
tered as owners.

(2) Upon the registration of two or more persons as owners of
the same land, or of the same charge, an entry may, with their con-
sent, be made on the register, to the effect that when the number of
such owners is reduced below a certain specified number, no registered
disposition of such land or charge shall be made, except under the
order of the Court.

(3) In such a case the words "no survivorship" in the entry
shall be construed to mean that if any one of the owners should die.
no registered disposition of the land or charge shall be made except
under order of the Court.

98. (1) Registered land shall be described in such manner as the
proper master of titles deems best calculated to secure accuracy, but
such description shall not be conclusive as to the boundaries or extent
of the land.

(2) No alteration shall be made in the registered description of
land, except under the order of the Court, or under section 119. or by
way of explanation, or under rules of Court; but this provision shall
not extend to registered dealings with registered land in separate par-
cels, although such land was originally registered as one parcel.

99. (1) There may be registered as annexed to any land which is
being or has been registered, subject to general rules and in the pre-
scribed manner, a condition or covenant that such land, or any specified
portion thereof, is not to be built on. or is to be or not to be used in a
particular manner, or any other condition or covenant running with
or capable of being legally annexed to land.

(2) The first owner, and every transferee, and every other person
deriving title from him. shall be deemed to be affected with notice of
such condition or covenant; but any such condition or covenant may
be modified or discharged by order of the Court, on proof to the satis-
faction of the Court that the modification will be beneficial to the per-
sons principally interested in the enforcement of the condition or
covenant.

(3) The entry on the register of a condition or covenant as run-
ning with or annexed to land shall not make it run with the. land, if
such covenant or condition on account of its nature, or of the manner
in which it is expressed, would not otherwise be annexed to or run
with the land.

(4) Where a condition or covenant has been entered on the reg-
ister as annexed to or running with land, and a similar condition is
contained in a subsequent transfer, or a similar covenant is in express
terms entered into with the owner of the land by a subsequent trans-
feree, or vice versa, it shall not be necessary to repeat such condition
or covenant on the register, or to refer thereto, but the proper master
of titles may, upon a special application, enter such condition or
covenant, either in addition to or in lieu of the condition or covenant
first mentioned.

100. All the provisions of the Trustee Act which are not incon-
sistent with the provisions of this Act shall apply to land and charges
registered under this Act, but this enactment shall not prejudice
the applicability to such land and charges of any provisions of that
Act relating to land or choses in action.

[101: V. 1915, s. 243, ante p. 454.]

540 APPENDIX OF STATUTES.

Instruments need not be sealed.

102. Notwithstanding the provisions of any statute, or any rule
of law, any charge or transfer of land registered under this Act may
be duly made by an instrument not under seal, and if so made, the
instrument and every agreement, stipulation, and condition therein
shall have the same effect for all purposes as if it were made under
seal.

Married women.

103. A married woman shall for the purposes of this Act be
deemed a feme sole, and may execute without seal any bar of dower
or other instrument required under this Act.

Persons under disability.

104 [(1) : Eng. 1875, s. 88, para. 1, Own. & Inc. 379.]
(2) If the infant has no guardian, or the idiot or lunatic has
no committee of his estate, or if a person yet unborn is interested, the
official guardian shall act with like power, or the proper master of
titles may appoint a person with like power to act for the infant, idiot,
lunatic, or person yet unborn.

Plans.

105. (1) Where land is surveyed and subdivided, for the purpose
of being sold or conveyed in lots by reference to a plan which has not
been already registered, the person making the survey and subdivision
shall register in the proper land titles office a plan of the land, on a
scale of not less than one inch to every four chains.

[There are 13 subjections; a new section (s. 105A) has also been
inserted by s. 14 of the Stat. Law Amend. Act 1915.]

106. (1) In cases not provided for by section 105, the proper
master of titles may require a person applying for registration to
deposit a plan of the land, with the several measurements marked
thereon, certified by an Ontario land surveyor, and as many counter-
parts as may be required, upon one of the following scales: [N. S. W.
1900. s. 114 (2)- (7), Aust. Torr. Syst. 138, 139.] .

107. In case a plan of subdivision lays out any portion of the
land as a street, road, lane or common, it shall not be registered unless
on the application of the owner of the land subdivided, with the con-
sent in writing of all persons who are registered as mortgagees or
chargees thereof.

108. All instruments affecting the land or any part thereof, lodged
with the proper master of titles after a plan is registered, shall con-
form and refer thereto, or registration shall not be hari thereunder,
unless the master under special circumstances deems it proper to
accept the same.

109 [1917]. (1) No plan upon which a street, road, or highway
is laid out shall be registered, unless it has been approved by the
proper municipal council or councils, and no plan of land abutting
upon a highway of a less width than 66 feet, or upon which there is
laid out a highway of less width than 66 feet, shall be registered, un-
less it has been approved by the proper municipal council or councils,
and by the Ontario railway and municipal board.

ONTARIO. :, 1 1

(1A) No plan of survey and subdivision to which the provisions
of the Planning and Development Act apply shall be registered, unless
approved as required by that Act.

(IB) No plan of land in territory without municipal organization
shall be registered, unless approved by the Ontario railway and muni-
cipal board.

(2) The approval of the proper municipal council referred to in
this section may be upon terms and conditions embodied in an agree-
ment signed by the owner of the lands laid out by such plan and by
the municipality, and may be registered upon the lands so laid out.

110. (1) No plan, although registered in an office of land titles,
shall be binding on the person registering the same, or upon any other
person, unless a sale has been made according to such plan; and in all
cases amendments or alterations thereof may be ordered to be made,
at the instance of the person registering the same or his assigns, or of
the owner for the time being of any of the land covered by the plan, by
[the courts or the master].

Notices.

112. (1) Every person whose name is entered on the register as
owner of freehold or leasehold land, or of a charge, or as cautioner, or
as entitled to receive any notice, or in any other character, shall fur-
nish a place of address in Ontario, and may from time to time sub-
stitute some other place of address in Ontario for that originally fur-
nished.

113. A purchaser for valuable consideration, when registered,
shall not be affected by the omission to send any notice by this Act
directed to be given, or by the non-receipt thereof.

Specific performance. Rectification of the register.

[114-117: Eng. 1875, ss. 93-97, Own. & Inc. 381, 382.]

118. (1) Upon the conviction under this Act, or under the crimi-
nal law of Canada, of any person for an offence whereby such person
fraudulently procured an entry on the register, by reason of which any
person other than the rightful owner has become the registered owner
of land, or by reason of which land under this Act has been wrongfully
incumbered, the proper master of titles, on the application of the right-
ful owner, may cancel such wrongful entry, and may enter the rightful
owner as the registered owner of the land.

(2) If while the wrongful entry was subsisting on the register, any
innocent person has been registered as the owner of any charge upon,
or any estate, right or interest in the land, the master, instead of
cancelling the wrongful entry, may make an entry on the register,
stating the fact of the conviction and revesting the land in the rightful
owner subject to such charge, estate, right or interest, and the land
shall thereupon be vested in the person named in such last mentioned
entry in accordance with the terms thereof.

(3) This section shall apply to past as well as future cases.

119. (1) The proper master of titles may, sua sponte and without
affidavit, enter a caution to prevent the dealing with any registered
land, when it appears to him that an error has been made in any entry
by mis-description of such land, or otherwise.

542 APPENDIX OF STATUTES.

(2) Subject to the rules the master, before the receipt of any con-
flicting instrument, or after notifying all persons interested, upon such
evidence as appears to him sufficient, may correct errors and supply
omissions in certificates of ownership or of charge, or in the register,
or in any entry therein, and may call in any outstanding certificate for
that purpose.

(3) Where the master under this section restores to the register
any covenant or condition, he may do so with such modifications as he
deems advisable, so as to do the least possible injury to the persons
affected by their omission, or by their restoration, and upon notice
to the attorney-general for Ontario, at the same time or subsequently
may determine what damages (if any) shall be paid to any of the
persons claiming to have been injuriously affected by the omission of
the covenants, or by their restoration.

Fraud.

Assurance fund.

123 [Am. 1918, s. 8]. (1) An assurance fund shall be formed for
the indemnity of persons who may be wrongfully deprived of land, or
some estate or interest therein, by reason of the land being brought
under the provisions of this Act, or by reason of some other person
being registered as owner through fraud, or by reason of any misde-
scription, omission, or other error in a certificate of ownership of land,
or of a charge, or in any entry on the register.

(2) In order to constitute such fund, there shall be payable on
the first registration under this Act of any land with an absolute or
qualified title, in addition to all other fees, a sum equal to one-fourth
of one per cent, of the value of the land apart from the buildings or
fixtures thereon, and one-tenth of one per cent, of the value of the
buildings and fixtures, and with a possessory title one-eighth of one
per cent, of the value of the land apart from the buildings or fixtures
thereon, and one-twentieth of one per cent, of the value of the build-
ings and fixtures.

(10) The master may require any applicant for registration to
indemnify the assurance fund against loss by a bond or covenant to
his Majesty, either with or without sureties, or by such other security
as he considers expedient.

(11) It shall not be necessary that the assurance fees payable on
first registration be then paid, but if not then paid the same shall be a
charge on the land

(13) Where land is sold for taxes, or upon the winding up of a
company, or under execution, or under the order of a court, the master
may register the new immediate ownership subject to such charge, and
where part of a parcel is so sold or is expropriated by any authority
other than the Crown, he may, upon proof of payment of the propor-
tion of such assurance fund charge which he deems to be fairly attri-
butable to the part so sold or expropriated by any authority other than
the Crown, note in the register the fact of such payment in respect of

OXTARIO. 543

the land so sold or expropriated by any authority other than the
Crown, and enter that part as free of the charge.

124. (1) Any person wrongfully deprived of land, or of some
estate or interest therein, by reason of the land being brought under
this Act, or by reason of some other person being registered as owner
through fraud, or by reason of any misdescription, omission or other
error in any certificate of ownership or charge, or in any entry on the
register, shall be entitled to recover what is just, by way of compensa-
tion or damages, from the person on whose application the erroneous
registration was made, or who acquired the title through the fraud or
error.

(2) Sub-section 1 shall not render liable any purchaser or mort-
gagee in good faith for valuable consideration, by reason of the vendor
or mortgagor having been registered as owner through fraud or error,
or having derived title from or through a person registered as owner
through fraud or error, whether the fraud or error consists in a wrong
description of the property or otherwise.

(3) If the person so wrongfully deprived is unable by such means
or otherwise to recover just compensation for his loss, he shall be
entitled to have the same paid out of the assurance fund, so far as the
fund may be sufficient for that purpose having reference to other
charges thereon, if the application is made within six years from the
time of having been so deprived; or, in the case of a person under the
disability of infancy, lunacy or unsoundness of mind, within six years
from the date at which the disability ceased.

(4) The liability of the fund for compensation, and the amount
of compensation shall, subject to appeal as in other cases, be deter-
mined by the inspector, unless the Court or the inspector on appli-
cation directs some other way of ascertaining and determining the
same.

(5) The costs of the proceedings shall be in the discretion of the
Court or of the inspector.

(6) Any sum paid out of the assurance fund may afterwards for
the benefit of the fund be recovered by action, in the name of the in-
spector, from the person on whose application the erroneous registra-
tion was made, or who acquired the title through the fraud or error,
or from his estate, and the inspector's certificate of the payment out of
the assurance fund shall be sufficient proof of the debt, but where the
erroneous registration was made or the title acquired by mere error,
and without fraud, credit shall be given for any sum which such per-
son may have paid into the assurance fund in respect of such land.

(7) Where a registered disposition would, if unregistered, be
absolutely void, or where the effect of the error would be to deprive a
person of land of which he is in possession, or in receipt of the rents
and profits, the inspector may, in the first instance or after a reference
to the Court, direct the rectification of the register, and in case of
such rectification the person suffering by the rectification shall be
entitled to the compensation provided for by this section.

127. (1) No person shall be entitled to recover out of the assur-
ance fund any compensation where

544 APPENDIX OF STATUTES.

(a) The claim is founded upon a right existing at the time
of the first registration of the land, and the state of the
title of the land at that time was such that the person
who was first registered, or the person on whose nomina-
tion or authorization such registration was made, by a
duly registered conveyance could have conferred, as
against the claimant, a valid title to a purchaser in good
faith for valuable consideration without notice of any
defect in the title; and no sufficient caution had been
registered and was in force when the application for first
registration was made, or a patent was forwarded for
registration, and the proper master of titles had not
actual notice of the defect prior to the first registration;
(6) The claimant, by direction of the master or in accordance
with the practice of the office, had been served with a
notice of the proceedings being had in the office, whether
such proceedings were prior or subsequent to first reg-
istration, and failed to appear in accordance with the re-
quirements of the notice; or if the master had adjudicated
against him and he had failed to prosecute successfully
an appeal against the master's decision;
(c) The claimant has caused or substantially contributed to
the loss by his act, neglect or default; and the omission
to register a sufficient caution, notice, inhibition, or re-
striction to protect a mortgage by deposit, or other
equitable interest, or any unregistered right, or other
equitable interest, or any unregistered interest or equity
created under section 68 or otherwise, shall be deemed
neglect within the meaning of this clause.
(2) In this section "claimant" shall include the person actually
making the claim, and any person through whom he claims who he
alleges was wrongfully deprived of land, or of some estate or interest
therein.

Withdrawing land from the registry.

129. (1) Where, after land has been registered, special circum-
stances appear, or subsequently arise, which make it inexpedient that
the land should continue under this Act, the owner may apply in the
prescribed manner to the proper master of titles for the withdrawal of
the land from the Act.

(2) If the owner proves before the master that all persons in-
terested in the land proposed to be withdrawn, consent to its with-
drawal, and satisfies the master that special circumstances exist which
render the withdrawal of such land or a part thereof expedient, the
master may issue his certificate describing the land, or such part
thereof as the consent covers and as the master deems proper, in
such a manner that the certificate can be properly registered in the
registry office for the registry division in which the land is situate,
and upon the certificate being issued this Act shall cease to apply to the
land described therein, and the land shall thereafter be subject to
the ordinary laws relating to real estate, and to the registry laws.

ONTARIO. 54.3

(3) The certificate of a local master under this section shall not
be valid unless approved and countersigned by the inspector.

(4) Upon the production of the certificate to the registrar of
deeds and payment of a fee of $1, the same shall be duly registered.

(5) This section shall not apply to land registered under section
159.

ADMINISTRATION AND MISCELLANEOUS.

Office of land registry.

134. (1) The proper master of titles by summons under the seal
of his office, may require the attendance of all such persons as he
may think fit in any application made to him. and may in the sum-
mons require any person to produce for inspection any document, deed,
instrument or evidence of title, to the production of which the appli-
cant or any trustee for him is entitled.

(2) He may also, by a like summons, require any person having
the custody of any map, plan, or book made or kept in pursuance of
any statute to produce such map, plan, or book for his inspection.

Right to inspect registry.
[137: Eng. 1875. s. 104, Own. & Inc. 385. J

Rules.

138. The Lieutenant-Governor in Council, or the judges of the
Supreme Court, under the authority of sections 109 and 110 of the
Judicature Act, which are to be read as applying to this Act, may
make general rules [Eng. 1875, ss. Ill, 112. Own. & Inc. 396, 397.J

EXTENSION OF ACT TO OTHER LOCALITIES AND EXPENSES.

146. (1) The municipal council of a county, or of a city or town
separated from the county for municipal purposes, may pass a by-law
declaring it expedient that the provisions of this Act be extended to
the county, city or town.

INSPECTOR OF OFFICES OF LAND TITLES.

156. (1) The Lieutenant-Governor in Council may appoint an
officer, to be called the Inspector of Land Titles Offices.

(2) The inspector shall, subject to the rules, have the like powers
and duties as an inspector under the Quieting Titles Act, and as an
inspector under the Registry Act, respectively, and such other duties
as may be required of him by the rules, or he may be required by the
Lieutenant-Governor in Council to perform.

-35

.-, |(i APPENDIX OF STATUTES.

REGISTRATION OF NEWLY PATENTED LANDS IN DISTRICTS.

159. (1) Where any land situate in a provisional judicial district
is granted by letters patent, or by order of the Lieutenant-Governor in
Council, the letters patent or a certified copy of the order in Council
shall be forwarded to the local master of titles of the district, for the
purpose of the grantee being entered as the first registered owner of
the land, with any necessary qualifications.

(6) Letters patent from the Crown demising land or mining
rights for a term of years, or for any greater estate, granted on or
after the 31st day of December 1887, shall be deemed to have been and
to be within the provisions of this section.

160. Where land situate in a provisional judicial district has
been patented by the government of Canada the local master of titles
shall have authority to register the patentee as owner of such land,
and may do so without submitting his finding upon the application to
the inspector for his concurrence.

161 [Am. 1918, s. 10J. (1) Upon an entry of ownership being
made, the local master of titles, unless where land is free grant, or
otherwise exempt from execution, shall in the prescribed form notify
the sheriff in whose bailiwick the land lies of the entry of the patentee
as owner.

(2) The notice shall be sent by registered post, and no entry of
any dealing with the land shall be made in the register until fourteen
days after the mailing of the notice, unless proof is previously made
that the land is not liable to any execution.

(3)" The sheriff, upon receipt of the notice, shall forthwith trans-
mit to the local master a copy of any execution in his hands affecting
the land of the patentee, and if within the fourteen days no copy of
an execution against the land of the patentee is received from the
sheriff, the local master may assume that the land is not subject to
any execution, and may enter subsequent dealings with the land
accordingly; and as against such entry no claim shall afterwards be
sustained in respect of an execution against the patentee.

(4) Where the local master receives from the sheriff a copy of an
execution affecting the land, an entry thereof shall be made against
the land, and all dealings with it shall be subject to such execution.

162. (1) Where a patent for land is forwarded to a local master
of titles under section 159, and it is made to appear to him that the
patentee since the date of the patent has transferred the land to some
other person, the transferee, or in case of a further transfer or trans-
fers the ultimate transferee of the land, shall be entered as the first
registered owner, and shall be described as the transferee of the
patentee or otherwise according to the fact.

(2) Before entering a transferee as first registered owner, the
local master shall require evidence to be produced, shewing that there
is no execution affecting the land.

Note. — The Act contains no schedule of forms or other schedules.
Under s. 138 of the repealed Act of 1911 — s. 138 in the present Act
(ante, p. 545) — Rules were made, which appear to be still in force,
containing schedules of forms and fees. The Rules were adapted from

OXTANIO. 547

those originally made under the English Act of 1875, with many ad-
ditions, and differ considerably from the present English Rules of
1903-8. The 1911 Rules are published in a small volume containing
the 1911 Act and an index, issued by the King's printer at Toronto.
A few of the more important of the rules only are here printed.

SCHEDULE OF RULES.
Made under 1 George T. 1911, Cap. 28, Section 138.

[Approved by Order-ix-Couxcil, 26th September, 1911.]
Charge of registered land.

27. (4) In the event of a foreclosure or sale being enforced by the
registered owner of the charge, the master of titles shall, upon the
application of the person entitled to the benefit of the foreclosure or
sale, and on proper proof, make all necessary entries in the register.
The applicant is to leave with the master a draft of the entry which
he considers himself entitled to.

Transfer of registered charge.

28. . . . (2) A transfer of a charge may contain an agreement
that, upon the payment of a sum of money therein named, or upon the
performance of any conditions therein stated, the charge shall be re-
transferred to the transferor.

(3) The insertion of such agreement in a transfer of charge shall
not affect the right of the transferee, while registered owner thereof,
to deal with the charge.

Determination of lease.

31. (1) Where leasehold land has been registered, and the lease is
determined, the master upon proof to his satisfaction of the deter-
mination may upon the application of the owner of the reversion or
his solicitor, whether the title of such reversion is a registered title or
not. notify such determination on the register.

(2) Where the reversion is in the Crown on behalf of the pro-
vince of Ontario, such application may be signed by the minister of
lands, forests and mines, or by a deputy minister.

(3) This rule shall, where applicable, extend to applications to
notify the determination of any lease or agreement for a lease under
section 70.

Assignment for benefit of creditors.

38. Where registered land, or a charge, is transferred by a regis-
tered owner to an assignee for the general benefit of the creditors of

548 APPENDIX OF STATUTES.

the transferor, whether by general words or otherwise, the master of
titles shall, upon the application of the assignee, describing the lands
by the numbers of the parcels under which they are registered, and
upon proper proof being given, suoject to the requirements of any
caution or inhibition which has been entered, register the assignee as
the owner of any lands or charges registered in the name of the trans-
feror, affected by the transfer, to such assignee subject to any incum-
brances that may appear thereon, and shall describe such trustee
shortly, as assignee for the benefit of the creditors of the transferor,
or to the like effect, but without setting out the terms of the trust
under which the land or charge is held.

Lease prohibiting alienation.

46. On the registration of any leasehold land, held under a lease
containing a prohibition against alienation without license, provision
shall be made for preventing alienation without such license, by an
entry on the register of a reference to such prohibition.

Land certificate A

47. . . . (2) A land certificate to the transferor under section
38 where only part is transferred may, if the master of titles shall
think fit, consist of his subsisting land certificate (if any) with a
memorandum thereon shewing the part disposed of.

(3) No new land certificate shall be issued under section 38 to
the same owner unless the old certificate is delivered up, except as
provided in section 90.

(4) Where the whole parcel is transferred, the master instead of
delivering a new certificate, may write on the existing certificate a
memorandum shewing the transfer and new ownership, and the same
shall have the effect of a new certificate to the transferee, but a land
certificate shall not be again transferred where on account of the
number of transactions endorsed thereon, or for any other reason, the
master deems such transfer inexpedient.

Certificate of charge.

48. . . . (2) Where a charge is transferred the master, instead
of delivering a new certificate of charge, may write on the existing
certificate a memorandum shewing the transfer and new ownership,
and the same shall have the effect of a new certificate to the transferee.

Number of registered owners.

53. Any number of persons may be registered as owners of any
parcel of land or of a charge.

i The expression " land certificate " is obviously due to hasty
adaptation of the English Rhles. and " certificate of ownership " is
meant: see s. 14, ante, p. 522.

OXTARIO.

Instruments executed under powers of attorney.

549

58. If any document left in the office for registration purposes has
been executed under a power of attorney, the power of attorney (form
52) shall be produced, and, if the master of titles shall so direct, left
in the office, and the execution thereof by, and the identity of, the
principal, and the execution of the document by, and the identity of.
the attorney shall be duly verified, and such evidence furnished (if
any) that the power of attorney was effectual at the date of the execu-
tion of the document thereunder as the master of titles may direct,
(form 51.)

Instruments executed by corporations.

60. Where a document is executed by or on behalf of a corporation,
the execution thereof shall be duly proved by the affidavit of a subscrib-
ing witness, who may be an officer of the company. The affidavit of
some officer of the company shall also be furnished which shall state
the official position of the persons who execute the said document on
behalf of the company, and that they are authorized by the by-laws of
the company to execute such documents if they are so authorized
(form 50). A copy of the by-law or by-laws conferring this authority
shall be produced and left with the master, if he requires the same.
If the persons who execute are not authorized by by-law. the affidavit
shall state how they are authorized.

The companies register.

66. (1) . . . there shall be kept in every land titles office a
register to be called " the companies register."

(2) There shall be entered in the said register short particulars
of the powers of companies in respect of land, of the amalgamation or
absorption of companies, or of changes in the names of companies, or
copies of or extracts from the instruments by which the amalgamation,
absorption or changes are effected, in case a company affected by any
such instrument desires the registration thereof, or in case any person
interested requires the registration of an instrument with reference to
which proof in respect of any such matter is required.

(3) WEere a company desires to be entered as owner of land or
of a charge, or transfers or charges land, it shall produce to the master
the charter or other instrument conferring the authority to hold, mort-
gage, or transfer land, or an exemplification, or a copy thereof, certified
by the proper officer in that behalf, or shall produce such other evi-
dence as is satisfactory to the master, unless such instrument has been
previously registered in the companies register. In case the original
or exemplification is not to be left in the office, a copy of such original
or exemplification shall be left. ....

(5) The entry in the said register of the particulars required or
authorized by this rule in respect of any instrument, or the entry of a

550 APPENDIX OF STATUTES.

copy of any such instrument in the register, shall be deemed a regis-
tration thereof for the purposes of the Land Titles Act.

Forms.

80. (1) The forms in schedule A hereto shall be used in all mat-
ters to which they refer, or are capable of being applied or adapted,
with such alterations and additions only as are necessary to meet the
circumstances of each case; but no recital, reservation, covenant, de-
claration or other provision not referred to in or required by such
forms, shall be inserted therein, unless the master under special cir-
cumstances otherwise directs.

(3) The master may reject any document which is informal, or
which he may consider is not in accordance with this rule.

[Sched. A contains the forms, and sched. B the tariff of fees.]

BRITISH COLUMBIA. 551

BRITISH COLUMBIA.

Laxd Registry Act
(R. S. 1911, c. 127).

Note. — The Act of 1911 has been amended in every succeeding
year to the time of writing, and these amendments down to and
including those of 1918 are embodied in the following print. The
omitted portions relate to the details of the practice and procedure in
the registry, or are otherwise of minor importance.

The scheme of the Act is " to separate for the purposes of the Act
the legal estate from all equitable interests or incumbrances. The
one is the 'fee', the other the 'charge' ": In re Granny Consol. M.
Co. [1919] 2 W. W. R. 321 — though the actual decision was reversed by
the Privy Council: 3 W. W. R. 331.

An Act relating to the transfer of land, and to provide for the reg-
istration of titles to land.

Interpretation.

2. In the construction of this Act the following words and ex-
pressions shall have the meanings hereby assigned to them, unless the
same be repugnant to or inconsistent with the context, that is to say: —

"An indefeasible fee " means an estate in fee simple held under
a good safe-holding and marketable title.

" Absolute fee " means and shall comprise the legal owner-
ship of an estate in fee simple.

" Charge " means and shall include any less estate than the fee
simple, or any equitable interest whatever in real estate,
and shall include any incumbrance, Crown debt, judg-
ment, mortgage, or claim to or upon any real estate.

" Judgment " means and shall include any judgment, decree,
or order of any court whereby any sum of money is pay-
able to any person, or whereby the possession of land is
given to, or any estate vested in, any person by virtue
thereof.

" Real estate " or " land " means and shall include lands,
messuages, mines, and all other tenements and heredita-
ments whatsoever, with their rights, easements and ap-
purtenances.

" Instrument " [N. Z. 1915, s. 2, ante p. 476.]

" Purchaser " means the person who last acquired the land
otherwise than by descent or devolution of law, and shall
include, and shall be deemed to have always included, a
mortgagee.

" Transmission " means and applies to every change of owner-
ship consequent upon death, or upon any settlement, or
upon foreclosure or sale under mortgage or incumbrance,
sale under order of the Court, or for arrears of taxes or
assessments.

552 APPENDIX OF STATUTES.

" Right to purchase " means conditional or absolute right to
call for a conveyance of land in fee simple.

" Mortgage " means and includes any charge on land created
for securing a debt or lien, or any hypothecation of such
charge.

" Mortgagee " means the owner of a mortgage registered under
this Act.

" Mortgagor " means and includes the owner of land, or of
an estate or interest in land, pledged as security for a debt.

" Incumbrance " means and includes any charge or lien on
land (other than a mortgage), or an hypothecation of such
charge or lien.

" Incumbrancer " means and includes the owner of any land,
or of an estate or interest in land, subject to an incum-
brance.

" Incumbrancee " means and includes the owner of an in-
cumbrance.

" Owner " and '.' registered owner " mean and include any
person or body corporate registered under this Act as
owner of an estate or interest in land, or of any mortgage,
charge or incumbrance thereon, whether entitled thereto
in his own right, or in his representative capacity, or
otherwise howsoever.

" Register of indefeasible fees " means the volumes kept in
the land registry offices, in which certificates of indefeas-
ible title are entered and bound, or the register as kept at
the time to which the context applies.

" Right of way " shall include land or any interest in land
acquired for the purpose of constructing, maintaining or
operating any railway, street-railway or tramway, or for
erecting any pole-line, wood or timber chute, or for the
laying or placing of drains, pipes or wires, or the con-
veyance of water, or any easement of like nature.

Registries, registrars and examiners.

Registration of the fee and its effect.

14. Every person claiming to be registered as the owner in fee
simple of land shall apply to the registrar for registration thereof in
the form A in the first schedule to this Act, and the registrar shall,
upon being satisfied that a good safe-holding and marketable title in
fee simple has been established by the applicant, who shall at the
time of the application deposit with the registrar all title deeds in his
custody, possession or power, register the title of such applicant in a
book to be called the " register of indefeasible fees," which shall be
formed by binding together one original of all certificates of indefeas-
ible title as issued, and each certificate of title shall constitute a sepa-
rate folio of such register.

(1) In case the registrar is not satisfied that a good safe-holding
and marketable title has been established by the applicant, he shall
(not being himself an examiner of titles) refer the title to the ex-
aminer of titles for report.

BRITISH COLUMBIA. 553

(2) The examiner of titles shall either —

(a) Direct the registrar to register the title in the register

of indefeasible fees; or
(6) Direct the registrar to register the title in a book to be

called the " register of absolute fees." in the form B in

the said first schedule; or

(c) Direct the registrar to register the title in the register of
indefeasible fees, after giving such notice in such manner
as he may direct, and provided no caveat is lodged; or

(d) Direct the registrar to refuse the registration.

(3) In case the registrar be himself an examiner of titles, he may
in his discretion act in any one of the modes prescribed in the preced-
ing sub-paragraphs of sub-section 2.

(4) The applicant may mark upon his application the words
" absolute fee only required," or words to the like effect, in w"hich case
the registrar may —

(a) Register the title in the "register of absolute fees"; or

(&) Refuse to register the title;
and in either of such cases the assurance fund fee and the fee for a
certificate of indefeasible title shall not be demanded from the appli-
cant.

14A. (1) The registration of a mortgagee, or any person claiming
under him. in the register of indefeasible fees as owner of the fee by
virtue of a final order of foreclosure, shall operate to extinguish all
rights of the mortgagee, or those claiming under him, under any per-
sonal covenant for payment contained in said mortgage, and any judg-
ment obtained by him or them thereon, and any rights under any
bond or collateral security or obligation for the payment of the mort-
gage debt.

(2) The mortgagee shall be at liberty at any time after serving
such final order to apply for registration, and to endorse thereon
'' Interim certificate only required," and the registrar shall, if satisfied
that a good safe-holding and marketable title has been made out by
the applicant, issue to him a certificate in the form C (1) in the first
schedule hereto, and note the fact of such issuance against the title in
the register.

(3) Notwithstanding any rule of law or equity to the contrary,
no such final order of foreclosure shall be or be deemed to be, or to
have been, re-opened by the mortgagee proceeding to execution against
the goods or lands of the mortgagor, or any person liable for the mort-
gage debt or any part thereof, unless he shall have recovered a portion
of his debt through such proceedings.

(4) The mortgagee may at any time surrender the interim certi-
ficate, and upon such surrender and upon furnishing evidence satisfac-
tory to the registrar that he has not since the date of the final order
for foreclosure done any act to re-open the foreclosure, or recovered
or been paid any portion whatever of the mortgage debt, shall be en-
titled to completion of registration in accordance with his application,
and to the issuance of a certificate of indefeasible title to the mort-
gaged lands.

(5) In all applications founded upon a final order of foreclosure
the registrar shall, upon production of the order nisi and final order,
and of proof that the writ of summons was duly served upon all per-

554 APPENDIX OF STATUTES.

sons appearing upon his records as the owners of any interest in a
charge upon the lands, priority to whose interests or charges is claimed
by the applicant, be entitled to presume the regularity of all inter-
vening proceedings, and no person, foreclosed by any such order who,
having been served with the writ, is deprived of any lands or interest
therein by the issuance of a certificate of indefeasible title, shall have
any action or claim against the assurance fund based on any alleged
defect in the foreclosure proceedings.

15. Save as in section 17 hereof provided, the land and every por-
tion of the land comprised in any unregistered Crown grant shall be
registered in the register of indefeasible fees.

(a) The registrar shall not register, or receive any application
to register, any parcel of several or any portion less than
the whole of or any interest less than the whole in the
land comprised in any Crown grant unregistered wholly
or in part, or in any conveyance, charge, or other instru-
ment unregistered wholly or in part, unless and until
registration of the remaining portion of the land or inter-
est comprised in such Crown grant, conveyance, charge,
or instrument is concurrently duly applied for, and no
application as to any portion or interest shall be with-
drawn unless the application for all other portions or in-
terests of or in the same are also withdrawn: provided
that nothing herein contained shall be deemed to prevent
any person at any time from making application for, or
obtaining registration of, title to any part of or interest in
the lands passing under a will.

16. The registered owner of the absolute fee of any land may apply
to the registrar in the form N in the first schedule for a certificate of
indefeasible title, and the registrar shall on being satisfied that a good
safe-holding and marketable title has been established by the appli-
cant, who shall at the time of the application deposit with the reg-
istrar all title deeds in his possession, custody or power, register the
title of such application (sic) in the register of indefeasible fees.

(1) In case the registrar is not satisfied that a good safe-holding
and marketable title has been established by the applicant, he (not
being himself an examiner of titles) shall refer the title to the ex-
aminer of titles for report.

(2) The examiner of titles shall either —

(a) Direct the registrar to register the title in the register of
indefeasible fees; or

(6) Direct the registrar to register the title in the register of
indefeasible fees, after giving such notices in such man-
ner as he may direct, provided no caveat is lodged within
the time specified; or

(3) In case the registrar is himself an examiner of titles, he may
in his discretion act in any of the modes prescribed by the last pre-
ceding sub-section.

17. No mine, mineral claim, or coal or petroleum right, or other
undersurface right shall be registered in the register of indefeasible
fees, nor shall any certificate of indefeasible title issue therefor.

BJtdTItiU COLUMBIA. .355

18. The registrar may effect registration of the fee as well at the
instance of several persons, who together are entitled to the comple-
ment of the fee, as also of any joint tenant or tenant in common.

19. Upon every registration of an indefeasible fee, the registrar
shall issue a certificate of title in duplicate, in the form C in the
first schedule hereto, one original of which he shall retain, and the
other original (hereinafter included in any reference ' to a duplicate
certificate of title) shall be delivered to the person entitled thereto.

20. The registrar shall, upon the registration of every absolute
fee, issue a certificate of title to the person entitled thereto, in the
form E in the first schedule.

20A. On every application for the registration of any charge
under an instrument signed by an owner or person entitled to be regis-
tered as owner, other than a lease or easement, the certificate of title
shall be deposited with the registrar, who shall retain same or any new
certificate of title subject to such charge on behalf of persons inter-
ested in the land mentioned in such certificate, until such land is
freed from incumbrances. The registrar shall if desired furnish to the
owner of such charge a certificate of charge; and before any dealing
with or discharge of said charge is registered, such certificate of charge
shall be delivered up to the registrar to be cancelled: provided however
that the registrar may dispense with such production upon satisfac-
tory evidence of the loss or destruction of such certificate.

20B. No one application shall include sub-divided and unsub-
divided lands, or lots under different subdivision plans, or unsub-
divided lands which are not contiguous (a road, dyke, stream, right-of-
way or railroad not to be considered as a break in the contiguity), or
except in the case of a mortgage more than 2.000 acres of unsub-
divided lands. .......

20C. (1) No first or subsequent certificate of title shall issue for
more than fifty lots or parcels.

(2) Where two or more persons are registered as tenants in
common, such persons may receive one certificate of title for the en-
tirety, or each or any may receive a separate certificate for his un-
divided share, on delivering up for cancellation or endorsement any
existing certificate of title comprising such share.

22. (1) Every certificate of indefeasible title issued under this
Act shall, so long as the same remains in force and uncancelled, be
conclusive evidence at law and in equity, as against his Majesty and
all persons whomsoever, that the person named in such certificate is
seised of an estate in fee simple in the land therein described against
the whole world, subject to —

(a) The subsisting exceptions or reservations contained in the
original grant from the Crown;

(b) Any provincial tax, rate, or assessment at the date of
the registration imposed, or which may thereafter be im-
posed on the land, or which had theretofore been imposed
and which was not then due and payable;

(c) Any municipal charge, rate, or assessment at the date of
the application for registration imposed, or which may
thereafter be imposed on the land, or which had thereto-

536 APPENDIX OF STATUTES.

fore been imposed for local improvements or otherwise
and which was not then due and payable;

((/) Any lease or agreement for lease for a period not exceed-
ing three years, where there is actual occupation under
the same;

(e) Any public highway or right of way, watercourse or right
of water, or other public easement;

(/) Any right of expropriation by statute;

(g) Any lis pendens, mechanic's lien, judgment, caveat, issue
or other charge, or any assignment for the benefit of
creditors registered since the date of the application for
registration;

(h) Any condition, exception or reservation endorsed thereon:

(i) The right of any person to shew that any portion of the
land is, by wrong description of boundaries or parcels,
improperly included in such certificate;

(j) The right of any person to shew fraud wherein the reg-
istered owner has participated in any degree.

(2) Any certificate of indefeasible title issued under the provi-
sions of this Act sTiall be void, as against the title of any person ad-
versely in actual possession of and rightly entitled to the heredita-
ments included in such certificate at the time of the application upon
which such certificate was granted under this Act.

(3) After the issuance of a certificate of indefeasible title, no
title adverse or in derogation to the title of the registered owner shall
be acquired by any length of possession merely.

23. The registered owner of an absolute fee shall be deemed prima
facie to be the owner of the land described or referred to in the reg-
ister, for such an estate of freehold as he legally possesses therein,
subject only to such registered charges as appear existing thereon,
and to the rights of the Crown.

24. The registrar may, upon being satisfied by affidavit or other-
wise that any certificate or duplicate certificate of title has been lost
or destroyed, and upon advertisement of his intention so to do pub-
lished for one month at least in some one or more of the newspapers
published in the province (at the discretion of the registrar), and
upon payment therefor of the sum of one dollar, issue a fresh certifi-
cate of title in lieu of that so lost or destroyed. Such certificate shall
bear on the face of it that it is a duplicate, and reference shall be
made thereon to any affidavit or statutory declaration upon which it
has been granted; and every such fresh certificate shall be available
for all purposes and uses for which the former certificate would have
been available, and be as valid and effectual as such former certificate.

25. Every certificate of title shall be received as prima facie evi-
dence in all courts of justice in the province of the particulars therein
set forth, without proof of the seal or signature thereon.

25A. No action of ejectment, or other action for the recovery of
any land for which a certificate of indefeasible title has issued, shall
lie or be sustained against the registered owner for the estate or
interest in respect to which he is so registered, except in the following
cases, namely: —

(a) The case of a mortgagee or incumbrancee, as against a
mortgagor or incumbrancer in default;

BRITISH COLUMBIA.

557

(b) The case of a lessor, as against a lessee in default;

(c) The case of a person deprived of any land by fraud, as
against the person registered as owner through fraud in
which such owner has participated to any degree, or as
against a person deriving his right or title otherwise
than bona fide for value from or through a person so reg-
istered through fraud;

(d) The case of a person deprived of any land improperly
included in any certificate of title of other land, by wrong
description of boundaries or parcels;

(e) The case of a registered owner claiming under an instru-
ment of title prior in date of registration under the provi-
sions of this Act or in any case in which two or more
certificates of titles may be issued under the provisions of
this Act in respect to the same land;

(/) For rights arising or partly arising after the date of the
application for registration of the title under which the
registered owner claims;
(g) For rights arising under any of the clauses of section 22
of this Act.
25B. In any case other than as aforesaid, the production of a cer-
tificate of indefeasible title shall be held in any court to be an absolute
bar and estoppel of any such action as in the last preceding section
mentioned, against the person named in such certificate of title as
owner of the land therein described, any rule of law or equity to tne
contrary notwithstanding.

26. Where several registered parcels of land are included in
one certificate of title, the registered owner may deliver up such certi-
ficate of title to the registrar for cancellation, and thereupon the reg-
istrar is authorized to issue as many certificates of title in lieu thereof
as the owner may require, but so that no two new certificates of title
cover the same parcel of land, and no such new certificate shall issue
for any parcel of land by any description other than as described in
the register:

(1) Provided however that nothing herein contained shall prevent
a registrar from issuing a separate certificate of title for a right of
way held in fee simple, of which a plan has been deposited, where the
owner of the land is also the owner of the parcel, lot, or section
through which the right of way passes.

Registration of charges.

29. (1) When the fee. whether indefeasible or absolute, or any
less estate granted by the Crown, has been registered or registration
thereof has been applied therefor (sic) any ^person not entitled to
be registered in fee. claiming any less estate than the fee simple, or
any mortgage or other incumbrance upon, or any equitable interest
whatever in, the land (other than a judgment as to a sum of money
payable to any person, Crown debt, or leasehold interest in possession
for a term hot exceeding three years), may apply to the registrar for
the registration thereof in the form D in the said first schedule; and
the registrar shall, upon being satisfied after examination of the title
deed, or other evidence (if any) produced, that a prima facie title has

558 APPENDIX OF STATUTES.

been established by the applicant, register the title of such applicant,
by making a memorandum thereof in the register and on the duplicate
certificate (and on the certificate of title if issued prior to the passing
of the Land Registry Act Amendment Act 1914), in the case of an
indefeasible fee, and in the case of an absolute fee by registering the
title of such applicant in a book to be called the " register of charges,"
in the form F in the said schedule; and the original or a duplicate of
the document, or other evidence supporting the charge so registered,
shall be deposited in his office.

(a) Before registering any charge, the registrar may give

such notice in such manner as he may decide.
(6) Before the registration of any charge under an instru-
ment executed by a body corporate, after the 31st day of
May, 1916, which is also required to be registered in the
office of the registrar of joint stock companies pursuant to
the Companies Act or any other Act of the province (sub-
ject to any provisions to the contrary contained in any
such Act), there shall be delivered to the registrar a cer-
tificate under the hand and seal of the said registrar of
joint stock companies, stating that such instrument has
been registered in accordance with the provisions of the
Companies Act or such other Act as aforesaid, and giving
the date of such registration and sufficiently identifying
such instrument.
(2) On any application for registration of an assignment of a
registered charge, the registrar may in his discretion, in lieu of any
other registration, register the transfer of such charge by striking out
the name of the registered owner of same in red ink and entering in
lieu thereof the name of the transferee, and by entering the number of
the application and the number assigned to the documents deposited
or filed in support of the registration, and any other particulars he
may consider necessary; and thereupon the transferee shall be deemed
to be the registered owner of such charge.

32. A charge may be registered as well in respect of a present
and vested right, as of a future or contingent interest.

33. No equitable mortgage or lien, created simply by a deposit
of title deeds and memorandum thereof, shall entitle the person inter-
ested to registration under this Act.

34. The registered owner of a charge shall be deemed prima facie
to be entitled to the estate or interest in respect of which he is reg-
istered, subject only to such registered charges as appear existing on
the register, and to the rights of the Crown, and he shall be entitled to
a certificate of the registration of his charge upon payment of the
proper fee. %

35. No instrument purporting to create a charge on land, executed
by any person who is entitled to be registered as owner of the fee, shall
be registered, unless the person purporting to create the same shall
first be registered as the owner of the fee.

35A. No instrument purporting to create a charge under a sub-
agreement shall be registered, unless the person who is entitled to be
registered for the first right to purchase, and also all intermediate
agreements and assignments, are first registered.

BRITISH COLUMBIA. 559

35B. No sub-charge or assignment of a charge shall be registered,
unless the charge upon which the same depends has first been regis-
tered.

Registration of tax-sale deeds.

36. (1) In the case of applications under tax sales, the registrar
shall not take notice of any irregularity in the tax sale or in any of
the proceedings relating thereto, or enquire into the regularity of the
tax-sale proceedings, or any proceedings prior to or having relation to
the assessment of the land; but a certificate from the proper officer of
the Government or the municipality shall be furnished, shewing the
years for which there were taxes due and in arrear for which the land
was sold at such sale; and the registrar shall satisfy himself that the
sale was fairly and openly conducted, and he shall also cause to be
served upon all persons appearing by the assessment roll of the dis-
trict in which the lands are situate, or by the records of the land reg-
istry office, to be the persons who, other than a tax purchaser or his
assigns, are interested in such land, a notice in writing requiring them
within the time limited by such notice to contest the claim of the tax
purchaser; and in default of a caveat or certificate of lis pendens being
filed before the registration as owner of the persons entitled under
such tax sale, all persons served with notice under section 155 (6) of
the Municipal Clauses Act 1906, or section 293 of the Municipal Act, or
section 139 of the Assessment Act 1903, or section 253 of the Taxation
Act. in cases in which notice under this Act is dispensed with as here-
inafter provided, and those claiming through or under them, and all
persons claiming any interest in the land by virtue of any unregis-
tered instrument, and all persons claiming any interest in the land
by descent whose title is not registered under the provisions of this
Act, shall be for ever estopped and debarred from setting up any claim
to or in respect of the land so sold for taxes, and the registrar shall
register the person entitled under such tax sale as owner of the land
so sold for taxes: provided however that the registrar may dispense
with the giving of notice under this section in cases in which it is
proved to his satisfaction that the notices prescribed by [enactments
above mentioned] have been duly given and under the circumstances
of the case are sufficient, or in cases in which the tax sale has been
confirmed by an order of a judge of the Supreme Court.

40. On the application of a person entitled under the tax sale the
registrar may dispense with the production of the certificate of title,
and may issue a new certificate of title to the person entitled under
the tax sale as owner of the land; and thereupon any certificate of
title, or of registered estate, outstanding in respect of the same shall
be deemed to be cancelled as to said estate or interest.

Applications for registration generally.

43. When a title to land has been registered in the register of
indefeasible fees, no application for registration of any estate or inter-
est in the said land or in any part thereof shall be accepted in any
land registry office unless as a charge on the said land, except an

560 APPENDIX OF STATUTES.

application for registration of the said estate or interest in the
said register of indefeasible fees in accordance with the provisions of
this Act.

45. An applicant may withdraw his application as to the whole
or any part of the lands comprised therein at any time prior to the
registration of the title; but in case registration is applied for by an
agent on behalf of some other person, or in the names of the appli-
cant and some other person, the applicant shall not be allowed to with-
draw his application until he produces the written consent duly veri-
fied of such other person to such withdrawal; and the registrar shall in
such cases, as well as in cases wherein he shall reject or cancel an appli-
cation, return to the applicant or to the person appearing to him to be
entitled thereto all evidence of title lodged in support of the applica-
tion as to the part withdrawn, together with the balance of fees pro-
perly returnable to him: provided however that any registered docu-
ment deposited in support of the application so withdrawn shall not
be returned, but shall remain in the land registry office as a perpetual
deposit: provided always that in all such cases if a caveator shall have
been put to expense without sufficient cause by reason of such appli-
cation, he shall be entitled to receive from the applicant such compen-
sation as a judge in chambers may order.

Registration in general.

50. (1) Whenever any land or any estate or interest therein has
been or is hereafter vested in any executor, administrator or trustee,
the title of ruch executor, administrator or trustee shall be registered,
but no particulars of the purposes or trusts (if any) created or de-
clared in respect of the same shall be made (sic) in the register or on
the certificate of title, but a memorandum shall be made in the reg-
ister and on the certificate of title or certificate of charge (if any) by
the words " in trust," or " upon conditions." or other apt words, and
by reference by number to the instrument creating the same, which
shall be filed in the land registry office when the application for regis-
tration is made: [a copy, in lieu of the original, may be filed in cer-
tain cases.]

(2) When any such memorandum has been entered upon the reg-
ister and upon the certificate of title, no instrument purporting to
transfer, mortgage or otherwise deal with the land, or any estate or
interest therein, shall be registered unless —

(a) Such transfer, mortgage or other dealing is expressly
authorized by the instrument creating the trust or pur-
pose; or
(&) A judgment or order has been obtained from the Supreme
Court or a judge thereof (1) construing the instrument
in favour of such authority, (2) or ordering and directing
such transfer, mortgage or other dealing, a copy of which
judgment or order has been filed with the registrar; and
a reference to such judgment or order shall be made on
such certificate of title and on the register.
50A. A certified copy of an order in council, releasing or waiving
the rights of the Crown in any streets, roads, trails or other highway?

BRITISH VOLLMBIA. 561

which now are or may hereafter be vested in the Crown in right of
the province, shall have the same effect as if a Crown grant had been
issued by the Crown to the person in such order in council mentioned
as transferee, and shall be so treated by the registrar. Unless such
orders shall otherwise specify, any and all mines, minerals, coal and
petroleum shall be deemed to be excepted therefrom.

51. (1) Notwithstanding the provisions of any statute, or any
rule of law, any charge or transfer of land registered under this Act,
except in the case of bodies corporate, may be duly made under an
instrument without seal.

(2) Every instrument, other than a caveat, order of a court or
judge, judgment, certificate of judicial proceedings attested as such, or
an instrument executed by a corporation under its seal, required to
be registered under this Act, shall be witnessed by at least one person,
who shall sign his name to the instrument as a witness and add his
address and occupation

52. Where by any letters patent, conveyance, assurance or will, or
other instrument made and executed after the 20th day of April, 1891.
land has been or is granted, conveyed or devised to two or more per-
sons other than executors or trustees, in fee simple or for any less
estate, it shall be considered that such persons took or take as tenants
in common and not as joint tenants, unless a contrary intention ap-
pears on the face of such letters patent, conveyance, assurance or will
or other instrument that they are to take as joint tenants.

53. Where two or more persons are interested in distinct estates
or interests izi the same land, by way of remainder or otherwise, the
first owner of an estate of inheritance shall be registered as the owner
of a fee, and the interests or estates of the others or other shall be
registered by means of a charge or charges: provided however that in
any certificate of title granted by the registrar under this section the
owner of such estate of inheritance shall not appear to be possessed of
a larger or different estate than that to which he is by law entitled:
and provided also that all subsequent estates or charges shall duly
appear on such certificate.

54. (1) Whenever any of the property of a deceased person passes
by intestacy, or under a testamentary disposition, and the person
claiming title thereto shall apply for registration of the testamentary
disposition, or of the title of the heirs-at-law, or of any instrument
affecting such property executed subsequently to the death of such
deceased person, the application for registration shall not be deemed to
have been made until an official copy of the grant of probate or of the
letters of administration [is filed].

(2) If the property of an intestate consists entirely of real estate,
so that letters of administration are not required to be issued, such
application for registration may be received upon the filing [of cer-
tificate of payment of succession duties].

54A. Whenever any land or charge, excepting a judgment or lien,
becomes or has become the subject of a transmission, the person en-
titled under such transmission shall, before the registration of any
dealing therewith by him, make application to the registrar in the
form A or D, as the case may be, to be registered as owner thereof,
and the registrar may effect registration in pursuance of such applica-

R.T.L.— 36

562 APPENDIX OF STATUTES.

tion; and if the applicant becomes registered as executor or adminis-
trator of a deceased person, he shall thereupon, in the case of a charge,
be invested with all the rights and powers which the deceased owner
was possessed of, and the title of such applicant to such land or charge
shall relate back, and take effect as from the date of the death of the
deceased owner.

55. The registrar may, on the application of the guardian of any
minor, or the committee of any lunatic or person of unsound mind,
and on production of an order of the Supreme Court for that purpose,
enter a charge on behalf of such minor, lunatic or person of unsound
mind in respect of any interest in land held or possessed by such
minor, lunatic or person of unsound mind while under the disability
of infancy, lunacy or unsoundness of mind, upon being satisfied of
such infancy, lunacy or unsoundness of mind.

56. On the transfer or devise of any estate or interest in land to
two or more persons, it shall be lawful to provide in the deed or in-
strument transferring or devising such estate or interest that, unless
otherwise directed by the Court or a judge, no transfer or charge
effecting the whole or any part of such estate or interest shall be reg-
istered under the provisions of this Act, unless a like number of per-
sons to those taking title under the said deed or instrument shall join
in transferring or dealing with such estate or interest; and the reg-
istrar shall cause to be entered in the registry-books, and upon every
certificate of title or other certificate and duplicates thereof issued to
such persons evidencing their title to such estate or interest, following
the names of such persons, the words " joint owners."

57. The words " joint owners " may be inserted on any applica-
tion to register the title of two or more persons to any estate or inter-
est in land, provided the application be signed by the applicants and
not by an agent; and when so inserted after the names of the persons
applying to have their title registered, such words shall have the same
effect as if they had been inserted in the deed or instrument creating
such title.

58. In any case where land the title to which has been registered
has been forfeited to the Crown for non-payment of taxes, or for any
other cause whatsoever becomes vested in the Crown, the collector or
other officer acting in that behalf shall produce to the registrar of the
land registry district in which the land so forfeited or vested is situate
a certificate under the hand of the said collector or other officer of
such forfeiture or vesting, and setting out particulars of the land so
forfeited or vested, and in case of non-payment of taxes setting out
that the land so forfeited or vested has been publicly exposed for sale
for delinquent taxes, and that no sale had been effected and the
amounts due are still unpaid, whereupon the land so forfeited or vested
in the Crown for the use of the province shall be registered, by filing
said certificate and making a reference thereto on the register-books
against every title affected thereby, and thereafter any and all certifi-
cates of title and other certificates outstanding shall be deemed to be
and shall be cancelled, in so far as they affect the land so forfeited or
vested as aforesaid; and the title of the Crown upon such registration
shall be conclusive, and shall be deemed and taken to be the true and
correct title, from the day of the date of such registration as regards
all persons, free from incumbrance, and shall be conclusive evidence

BRITISH COLUMBIA.

563

that every application, notice, publication, proceeding, consent and
act whatsoever which ought to have been made, given and done pre-
viously to the issuing of such certificate has been made, given and
done by the proper authority to the proper persons.

59. There shall not be registered in any land registry office any
title derived from his Majesty the King in the right of his Dominion
of Canada to foreshore or tidal land, land under the sea. or land form-
ing part or that at one time formed part of an Indian reserve, without
the sanction of the Lieutenant-Governor in Council.

60. The attorney-general may in behalf of the Crown register a
Crown debt against the land of any debtor to the Crown, in like man-
ner as other charges are registered, and no Crown debt shall affect any
lands of a Crown debtor unless and until the same be registered.

61. (1) The description of parcels shall in all cases where possible
be that contained in the instrument which vests the land in the person
whose title is registered, and the registrar shall have power to call for
evidence of identity of any such parcels with the original grant or con-
veyance of such before effecting registration.

(5) It shall be the duty of any person having heretofore entered
into or hereafter entering into an agreement of sale, sub-agreement or
assignment, where the purchase price is payable by instalments or
at a future time, to deliver to the party so buying said land an agree-
ment, or other suitable instrument, in such form and executed by such
parties that the title of the purchaser under such agreement or instru-
ment shall be registrable; the execution of such agreement or instru-
ment shall be duly acknowledged or proved under the provisions of
this Act.

(6) It shall be the duty of any person having sold or conveyed or
hereafter selling or conveying land, or who has heretofore entered into
or hereafter enters into an agreement for sale, sub-agreement or
assignment as in the preceding sub-section mentioned, to register his
own title, in order that any person to whom any land has been or may
be conveyed, and any person so buying said land or any interest
therein, may be able to register his title or interest therein.

61 A. (1) "When two or more persons are the registered owners
of land, or any estate or interest therein, and owing to the default of
one another is or has been called upon to and has paid more than his
proportionate share of any instalment of purchase money, or of any
mortgage moneys, or of any interest, or of any taxes or insurance, or
of any other payment which such owners are required to make under
any covenant, term- or condition entered into by them, or contained
in the grant, conveyance assurance, agreement or other instrument
whereunder they hold, or when such other has paid more than his
proportionate share of any payment which is necessary in order to
free the land from any charge, incumbrance or lien whereunder the
same might be subject to forced sale, or the owners might be fore-
closed or sued, then and in every such event the person so making any
such payment may, in addition to all other rights and remedies to
which he is or may be entitled by law or agreement, apply to a judge
in chambers by originating summons to be issued and served pursuant
to rules of court, for relief in accordance with the rules of the Su-
preme Court.

564 APPENDIX OF STATUTES.

(2) The judge may order that the applicant shall have a lien upon
the share or interest in such lands of the person so making default,
and may authorize the applicant to commence an action against such
person so in default as upon an implied promise, and to enforce such
lien, or may make such other or further order as may be just.

(5) Any person entitled to a lien under an order made under sub-
section 2 hereof may file a caveat in respect thereof, to which caveat
the provisions of section 69 of the Land Registry Act shall not apply.

Caveats and lis pendens.

62. Any person claiming to be interested under any will, settle-
ment, trust deed, instrument of transfer, unregistered instrument, or
as heir-at-law. or otherwise howsoever in any land the title to which
has been registered may, by leave of the registrar to be granted upon
such terms (if any) as the registrar may see fit to impose, lodge a
caveat with the registrar [&c. Fi. 1876, s. 93 down to " expressed
therein," Aust. Torr. Tyst. 685.]

62A. The registrar may file a caveat on behalf of his Majesty, or
on behalf of any person who may be under any disability, to prohibit
the transfer or dealing with any land belonging or supposed to belong
to the Crown or to any such person; and also to prohibit the dealing
with any land in any case in which it shall appear to him that an
error has been made in any certificate of title or other instrument, or
for the prevention of any fraud or improper dealing.

[63, 64: Fi. 1876, s. 93 (1, 2), Aust. Torr. Syst. 685.]

65. So long as any caveat prohibiting the transfer or other deal-
ing with any land, mortgage, or incumbrance remains in force, the
registrar shall not register any instrument purporting to transfer,
mortgage or incumber the land, mortgage or incumbrance in respect
to which such caveat is lodged, unless such instrument be expressed
to be subject to the claim of the caveator.

[66, 67: Fi. 1876, s. 93 (4, 8), Aust. Torr. Syst. 685, 686.]

67A. After a caveat shall have lapsed or have been discharged, it
shall not be lawful except as herein mentioned for the same person or
for any one on his behalf to lodge a further caveat, but nothing herein
contained shall prejudice the right of the registrar to enter any caveat
under the powers vested in him by this Act; and a judge may, if he
think 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 filed, and such order shall fix a time within which the
caveator must proceed to substantiate the right claimed under such
caveat; provided that where a caveator has withdrawn his caveat the
registrar may in his discretion allow a further caveat to be filed in
respect to the same matter.

[68: Fi. 1876, s. 93 (9). Aust. Torr. Syst. 686.]

69. Twenty-one days after the notice to the caveator mentioned
in the said form H, or if no notice shall be given two months after the
receipt of a caveat by the registrar, such caveat shall be deemed to
have lapsed, unless the person by whom or on whose behalf the same
was lodged shall within those times respectively have filed with the
registrar evidence that he has taken proceedings before the Court or a

BRITISH COLUMBIA. 555

judge to establish his title to the land referred to. or his right as set
out in such caveat.

70. The last preceding section shall not apply in the case of a
caveat filed by the registrar, or lodged on behalf of the Crown or on
behalf of any cestui que trust, heir-at-law or person under disability,
who shall at the time of applying to the registrar to lodge such caveat
file with such registrar evidence to his satisfaction that the caveator
has a vested interest in the said land.

71. Any person who shall have commenced an action, or being a
party thereto is making a claim, in respect of any land, may register a
lis pendens against the same as a charge, and there shall be embodied
in the certificate of the registrar of the Court a copy of the endorse-
ment upon the writ, or a copy of the plaint or of the pleading whereby-
such claim to land is made, or in the case of a lis pendens under the
Execution Act. a copy of the notice of motion.

Xotiee and priority.

72. The registration of a charge, from and after the time of the
application for the registration thereof but not otherwise, shall give
notice to every person dealing with the land against which such charge
has been registered, of the estate or interest in respect of which the
same has been registered.

73. When two or more charges appear entered upon the register
affecting the same land, the charges shall as between themselves have
priority according to the dates at which the applications respectively
were made, and not according to the dates of the creation of the
estates or interests.

75. The registrar shall, after registration of an indefeasible or
an absolute fee, endorse on every deed or instrument produced or
deposited in proof of the title a memorandum in the form G in the
first schedule hereto . . . and every deed or instrument when
registered, and every certificate of title indefeasible or otherwise, shall
when signed by the registrar be deemed to be registered and issued
and take effect as of the date, hour and minute when the application
for the registration of same was received by the registrar in form
required by this Act. and every such endorsement with such seal and
initials shall have the same effect and be received in all courts as con-
clusive "evidence of the registration as aforesaid of such retained deed
or instrument.

76. The time at which application for registration shall be deemed
to have been made shall be the time when the form of application
referred to in sections 14 and 29 of this Act, filled up and signed by
the applicant, is received by the registrar, and no application shall be
deemed to have been made until the fees due on same shall have been
paid.

Affidavits and acknowledgments of execution of deeds.

77. (1) Before any deed or instrument executed subsequently to
the 8th day of October, 1865. other than a Crown grant, decree, judg-
ment or order of a court of civil jurisdiction, is recorded or registered,
and to entitle the same to be so recorded or registered, the execution
thereof by the grantor or other conveying party shall first have been

56(5 APPENDIX OF STATUTES.

acknowledged or proved in the manner hereinafter provided; and such
fact of acknowledgment or proof shall appear by a certificate under
the hand and seal of the proper officer or other person authorized to
take such acknowledgment, endorsed upon or attached to such deed or
instrument.

(2) Where the execution of any deed or instrument is being
acknowledged by a maker who appears to the officer taking such
acknowledgment to be illiterate or blind, such officer shall state such
fact in his certificate, and that the deed or instrument was read in his
presence to such maker by whom such execution is being acknowledged,
and that he appeared perfectly to understand the same and made his
signature or mark in the presence of the officer.

(3) In case such acknowledgment or proof is being made by a wit-
ness to the execution by a maker who cannot speak, read or write
English, or who is illiterate or blind, such witness shall prove that
such deed or instrument was before execution read over to, or was
interpreted to, the party executing the same by such witness in a
language understood by the person so executing such deed or instru-
ment (stating the language in which it was so interpreted, if inter-
preted) and that the person so executing such deed or instrument
appeared perfectly to understand the same, and made his signature or
mark thereto in the presence of such witness.

78. All acknowledgments, affidavits, oaths and declarations neces-
sary for the purposes of this Act may be taken by and made before the
registrar, or any notary public practising within the province, or a
commissioner appointed to take affidavits to be used in the courts of
the province. Acknowledgments or proofs of execution . . . may
also be made to [other official persons, according as the execution is
in British Columbia, or elsewhere within the British dominions, or
outside the British dominions].

79. [Method of taking acknowledgment or proof.]

80. Acknowledgments and proofs of the execution of instruments
entitled to be registered or recorded may, for the purposes of this Act,
be made by —

(a) The party executing in person such instrument;

(b) The attorney in fact, when such instrument is executed
by an attorney in fact;

(c) The secretary or other officer of any corporation authorized
to affix the seal of the corporation to any instrument,
when such instrument is executed by such officer;

(d) A subscribing witness to such instrument, except in cases
of deeds executed by a married woman, any attorney in
fact, or secretary or other officer of a corporation.

[Minute directions follow as to proof by an attorney, secretary, married
woman (who must be separately examined) and subscribing witness].
(7) Provided however that notwithstanding any defect in the
proof or form of execution of any instrument, the registrar may in
his discretion, upon being satisfied of the due execution of such in-
strument and of the maker thereof being of the full age of twenty-one
years, register or record the same; and such registration or record
shall be valid or effectual for all purposes, notwithstanding any such
defect.

81. (1) Whenever any instrument is produced for the purpose of
the registration of any title purporting to convey the land of a mar-

BRITISH COLUMBIA. 557

ried woman, or of any interest therein, it shall be sufficient so far as the
execution of such instrument is concerned, and in order to entitle the
same to be registered, that the married woman have made an acknow-
ledgment of execution in the manner and form provided in the last
preceding section; and every instrument so acknowledged by any
married woman, and registered, shall be as effectual to all intents and
purposes to pass all the estate, right, title, and interest of the married
woman by whom the same is executed in the land to which the same
relates as if she had been unmarried, any law and in particular the
Act 3 & 4 Will. 4, c. 74, to the contrary notwithstanding.

(2) Any instrument heretofore or hereafter executed by an attor-
ney for a married woman, under power of attorney duly acknowledged
by her and filed in the proper land registry office, shall, if otherwise in
order, be valid and effectual as from the date of the execution thereof
for the purpose for which it was executed, notwithstanding the fact
that such married woman did not personally acknowledge the execu-
tion of such instrument.

Pouers of attorney.

84. In every case in which any instrument shall have been exe-
cuted by an attorney, the power of attorney, or a copy thereof duly
certified to be a true or office copy by the registrar, or the registrar
of joint stock companies, in whose office the original is filed, shall be
filed in the office of the registrar, and the application for registration
shall not be deemed to have been made until such power of attorney
or duly certified copy thereof shall have been delivered to the registrar
for that purpose.

(a) Every person appointed as such attorney must be of the
full age of twenty-one years at the time of his appoint-
ment, and proof of such fact shall be made to the registrar
at the time of filing such power of attorney. .....

85A. (1) Every power of attorney shall, unless otherwise ex-
pressed, confer upon the donee of such power the same rights and
powers, in respect of property acquired by the donor of such power
after the execution of such power of attorney, as is conferred upon the
said donee by such power of attorney in respect to the property owned
by the donor at the time of the execution of such power of attorney.

(2, 3) [Section is made retrospective except as to pending litiga-
tion or disputes.]

Production of documents.

86. Upon every registration of title in favour of an owner in fee
simple, mortgagee or other person by right entitled to the possession
of documents of title, the registrar shall require the person requiring
to be registered as owner in fee. mortgagee or otherwise, to produce
the title deeds of the property to which such registration is intended
to refer, unless the non-production of such title deeds, or any of them,
be satisfactorily explained to the registrar on affidavit duly made:

;>£$ APPENDIX OF STATUTES.

provided always that where the applicant desires to be registered as
the owner of the absolute fee only, or as the <owner of a charge upon
the absolute fee only, and where the title has been already registered in
the register of absolute fees, the registrar may in his discretion, on
the certificate of title being produced, dispense with the production of
all or any of the title deeds prior to the issuance of such certificate.

87. Whenever any instrument required to be produced or de-
posited cannot be produced by an applicant for registration, by reason
of its being in the possession of a mortgagee or other person (including
the registered owner of the land) who refuses or neglects to produce
the same, the registrar may, upon being satisfied that the applicant
has a good and proper title, first give notice in writing to the holder
of such instrument of his intention to register the applicant's title at
the expiration of the time specified in the said notice, which shall not
be less than one week and not more than two months at the discretion
of the registrar.

88. The said notice may be in the form I in the said first schedule;
and after proof of service of the same on the holder of the instrument
aforesaid, the registrar may, unless a good and valid objection thereto
be made to him in writing within the time mentioned in the notice
(or any extension thereof which he may in his discretion grant), pro-
ceed to the registration of the title of the applicant; and thereupon if
such registration is for an estate in fee simple, any outstanding certifi-
cate of title or duplicate certificate of title the non-production of which
is mentioned in said notice shall, notwithstanding anything tio the con-
trary contained in this Act, be deemed to be cancelled as to the lands
so registered in the name of the applicant.

Subdivisions of land.

89. (1) After the 1st day of March 1911, no land not being a
mineral claim shall, for the purpose of sale or other alienation, be sub-
divided into parcels of five acres or less, nor shall any such map or
plan of a subdivision of such land into parcels of five acres or less be
deposited, and every application for the registration of any parcel of
five acres or less shall be refused and no registration thereunder shall
be made, unless the title to such land or parcel shall have first been
registered in the register of indefeasible fees.

(2) Provided however that the foregoing shall not apply to any
parcel of five acres or less already shewn on the register of absolute
fees as a separate parcel, nor shall same apply to any parcel of five
acres or less shewn as a separate parcel on any map or plan already
deposited, or to any other parcel of five acres or less which in the
opinion of the registrar is not a subdivision or part of a subdivision of
land into five acres or less; but, if any such excepted parcel of five acres
or less is subsequently included in any subdivision plan of land to
which the foregoing does apply, the same shall apply to it. The pro-
visions of the Land Act as to the reconveyance to the Crown iof one
quarter of certain lots in certain cases shall be strictly adhered to.

90. (1) Any person subdividing land (which shall include every
division of land into two or more parts) shall, within three months
from the date of such subdivision, unless such period shall have been
extended by the registrar, tender to the registrar for deposit a plan in
duplicate of such subdivision. . . ...

BRITISH COLUMBIA. .-,,;<)

(5) No such plan shall be received on deposit unless all the land
included therein and subdivided thereby is registered under one title
in the register of indefeasible fees.

92. . . (8) Wherever upon any plan of subdivision heretofore

or hereafter deposited in any land registry office, any portion of such
subdivision is shewn as a street, lane, avenue, road, highway, paik or
public square, and is not designated thereon to be of a private nature,
the marking or indicating on any such plan of any street, lane, avenue,
road, highway, park or public square shall be deemed to be a dedication
to the public of such portion thereof for the purpose and object indi-
cated on or to be inferred from such marking on such plan. No certi-
ficate of title shall issue for any street, lane, avenue, road, highway,
park or public square so dedicated as aforesaid:

(a) Such deposit shall be deemed to vest in the Crown in
right of the province the title of such portion of such sub-
division so shewn as a street lane, avenue, road or
highway.

94. If any person or corporation shall sell or convey, or agree to
sell or convey, any lots or parcels of land by number or letter accord-
ing to any plan or subdivision of any property before such plan has
been deposited according to law, the purchaser of any such lot or
parcel of land without knowledge of the non-deposit of the plan or of
the necessity for the same, or any person claiming under him. may at
his option on acquiring such knowledge rescind the contract of pur-
chase and recover back any money paid thereunder with lawful inter-
est, and any taxes or other expenses incurred by him in consequence
of such purchase; and he shall in such case have a lien on such lot or
parcel for all such moneys as against the vendor's interest in the said
lot or parcel, but the vendor shall nevertheless be bound by any such
contract, deed or conveyance, if the purchaser does not rescind the
same.

100. (1. 2) The registrar may require the owners of any land
within his district desiring to transfer [&c, to deposit plan nearly as
in N. S. W. 1900, s. 114 (1. 6). Aust. Torr. Syst. 138. J .... .

[lOOA: N. S. W. 1900, s. 114 (as to scale of plan), and supra.l

Transfers.

102. When any conveyance or transfer is made of any land or
interest therein the title to which is registered, the grantee or trans-
feree shall be entitled to be registered as the owner of the same estate
or interest held by or vested in the former owner; and in the case of
an indefeasible or absolute fee a new certificate of title pursuant to
either section 19 or section 20. as the case may be, shall be issued to
the grantee or transferee on the production and cancellation of the
former certificate or duplicate certificate, which certificate shall not
be destroyed but shall be retained by the registrar and marked or
stamped with the word " cancelled " and the date of the cancellation.

103. (1) Where a portion only of the land included in a certifi-
cate of absolute title has been conveyed, a memorandum of the con-

570 APPENDIX OF STATUTES.

veyance shall be endorsed on the certificate and a new certifi-
cate of title shall be issued for the portion conveyed. Where a portion
only of the land included in a certificate of indefeasible title has been
conveyed, a memorandum of the conveyance shall be endorsed on the
certificate and on the duplicate thereof, and a new certificate of in-
defeasible title for the portion so conveyed shall be prepared and re-
tained by the registrar, and a duplicate thereof transmitted to the
person thereto entitled.

(2) For the purpose of allowing the cancellation mentioned in this
or section 102, the holder of any certificate of title covering land for
which he has given a conveyance or transfer shall deliver up his cer-
tificate of title to said land; and if such cancellation is only in part,
the registrar shall after making same return the said certificate, or
deliver a new certificate of title in lieu thereof, to the person entitled
thereto.

104. (1) No instrument executed and taking effect after the 30th
day of June, 1905, and no instrument executed before the 1st day of
July, 1905. to take effect after the said 30th day of June. 1905 purport-
ing to transfer, charge, deal with or affect land, or any estate or inter-
est therein (except a leasehold interest in possession for a term not
exceeding three years), shall pass any estate or interest either at law
or in equity in such land, until the same shall be registered in compli-
ance with the provisions of this Act; but such instrument shall confer
on the person benefited thereby, and on those claiming through or
under him whether by descent, purchase or otherwise, the right to
apply to have the same registered. The provisions of this section shall
not apply to assignments of judgments.

(2) No purchaser for valuable consideration of, or holder of, a
charge or incumbrance on any registered real estate or registered
interest in real estate, or as to which registration is pending, shall be
affected by any notice, express, implied or constructive, of any title,
interest or disposition affecting such real estate which is not registered,
or the registration of which is not pending, other than a leasehold
interest in possession for a term not exceeding three years, any rule
of law or equity to the contrary notwithstanding.

(3) No mortgagee, incumbrancee, or holder of a charge enforcing
his mortgage, security, incumbrance or charge by exercise of the
power of sale therein contained or by foreclosure, and no purchaser
under the power of sale or under a sale in performance of an order of
the court in a foreclosure suit, and no court in which a suit to enforce
a mortgage, security, incumbrance or charge by foreclosure is pending,
and no registrar or ; examiner of titles considering an application
founded upon a sale under such a power of sale, or under a foreclosure
decree, or under an order for sale in lieu of foreclosure, shall be bound
by or have any notice of the rights or claims of any subsequent incum-
brancee, or of any other rights or claims, registration whereof is not
applied for until after a notice of the intended exercise of the power of
sale, or a certificate of lis pendens in a foreclosure action, shall have
been filed or registered in the land registry office wherein (sic) the
lands affected are situate. Upon the filing of any such notice the reg-
istrar shall cause a note thereof by its filing number and series (if any)
to be made in the index relating to such lands.

105. Instruments executed before and taking effect before the 1st
day of July, 1905. transferring, charging, dealing with or affecting

BRITISH COLUMBIA. ;,; 1

land, or any estate or interest therein, unless registered before the
said date (except a leasehold interest in possession for a term not
exceeding three years), shall not be receivable by any court or any
registrar or examiner of titles as evidence or proof of the title of any
person to such land, as against the title of any person to the same
land registered on or after the 1st day of July, 1905, except in an action
before the court questioning the registered title to such land on the
ground of fraud wherein the registered owner has participated or
colluded.

106. Every transfer or conveyance in the form L in the first
schedule hereto shall, when registered but not otherwise, confer upon
the person to whom it is made, his heirs and assigns (or upon his
executors, administrators and assigns, as the case may be) all the
estate and interest of the transferor or grantor, whether legal or
equitable, at the date thereof, subject however to any charge that may
appear on the register against the same, and also to any unregistered
leasehold interest in possession for a term not exceeding three years;
and shall also pass to the transferee or grantee, his heirs and assigns
(or executors, administrators and assigns, as the case may be) the
full and entire benefit of all covenants and agreements in respect of,
and all powers, provisoes and conditions of entry, sale, leasing (if
any) over, the real estate the subject-matter of the transfer to which
the transferor was entitled and which may thereby be intended to be
transferred at the time of such transfer; and if the estate or interest
so transferred be that of a mortgagee, shall confer on the transferee,
his executors, administrators and registered assigns the full benefit of
and right to sue upon any covenant for payment of the mortgage
moneys and interest thereon.

107. Any owner of land registered under this Act may make a
valid transfer directly to himself jointly with another or others, and
the registered owners may make a valid transfer directly to one of
their number, either solely or jointly with some other person, and a
trustee under a will may make a valid transfer to himself individually.

107 A. (1) In a deed or other instrument it shall not be necessary,
in the limitation of an estate in fee simple, to use the word "heirs,"
or in the limitation of an estate in tail to use the words " heirs of
the body/' or in the limitation of an estate in tail male or in tail female
to use the words " heirs male of the body " or " heirs female of the
body " ; and for the purpose of any such limitation, it shall be sufficient
in a deed or other instrument to use the words " in fee simple," " in
tail," " in tail male " or " in tail female," according to the limitations
intended, or to use any other words sufficiently indicating the limita-
tion intended.

(2) Where no words of limitation are used, or where words of
limitation which do not shew a contrary intention are used, a convey-
ance shall pass all the estate, right, title, interest, claim and demand
which the conveying parties respectively have in, to or on the pro-
perty conveyed, or expressed or intended so to be, or which they
respectively have power to convey in, to or on the same. This sub-
section applies only if and as far as a contrary intention does not
appear from the conveyance, and shall have effect subject to the terms
of the conveyance and to the provisions therein contained.

[,;•> APPENDIX OF STATUTES.

107B. Every instrument presented for registration may be in
duplicate, except a transfer or conveyance whereon a new certificate
of title is required.

Reference to the court.

110. The court or any judge thereof may, on the application of
any person interested in land, or on any application made on behalf
of the owner of a future or contingent interest, by petition or other-
wise, make an order, or issue a caveat, inhibiting any dealing with or
registration of such land, and annex thereto any terms and conditions
it or he may think fit.

111. Subject to the provisions of section 116A. the service upon
the registrar of an office copy of any order of the Supreme Court or
any judge thereof, or of any order, decree, rule, judgment, or any other
proceeding touching the registration of land, shall without more be
sufficient authority for him to act in compliance therewith.

112. All registrations of fees or charges made in pursuance of any
order of the court as aforesaid shall stand in precisely the same posi-
tion, and shall have such force and no other, as registrations of the
fee or charges made under the ordinary provisions of this Act.

116 A. Except as in section 50 provided, the registrar shall not
issue a certificate of indefeasible title under or in pursuance of any
order of the court or a judge, unless such order declares that it has
been proved to the satisfaction of the court or such judge upon inves-
tigation that the title of the person to whom the certificate of title is
directed to issue is a good, safe-holding and marketable title.

11615. Whenever upon the examination of the title to any land
the registrar or examiner of titles refuses to register the title in the
register of indefeasible fees, he shall, upon the written request of the
applicant for registration, prepare and furnish to the applicant a
report upon the title. .....

116C. The applicant may thereupon petition the Supreme Court
or a judge under the provisions of the Quieting Titles Act

116D. The proceedings thereafter shall be governed by the Quiet-
ing Titles Act. . . ...

Contested titles.

117. Any person interested in land the title to which has been
registered, and desirous of contesting such registration, may file an
issue in the form M in the said first schedule. The registrar shall there-
upon enter a memorandum of such issue against the land or interest
referred to, in like manner as charges are entered, and within three
months thereafter the person filing such issue shall bring an action
against the person whose title is contested, and the court shall make
such order, or give such judgment thereon, as to the cancellation or
amendment of such registration, or otherwise, as the nature of the case
shall require.

118. No such issue shall be filed or entered as aforesaid, until the
person desirous of filing such issue shall produce to the registrar an
affidavit shewing his interest in the land the registration of which is

BRITISH COLUMBIA. 5-3

intended to be effected (sic), and shall furnish to the registrar security
to the satisfaction of some judge of the Supreme Court, conditioned
to bring his action within three months from the filing of the said
issue, and to pay to the registered owner, or any person prejudicially
affected by the filing of said issue, any costs or damages that such
owner or other person may be awarded by any court of competent jur-
isdiction.

120. If such action be not brought as aforesaid, the registrar shall
cancel such issue on the application of the person whose title is con-
tested, and such person shall be entitled to recover all costs, charges,
damages and expenses which he may have sustained by reason thereof,
against the party who has filed the said issue.

Service of notices.

121 A. A purchaser, mortgagee, or incumbrancee for valuable con-
sideration shall not be affected by the omission to send any notice by
this Act directed to be given, or by the non-receipt thereof.

122. The registrar shall not, nor shall any person acting under
his authority, be liable personally to any action, suit or proceeding for
or in respect of any act or matter bona fide done, or omitted to be
done, in the exercise or supposed exercise of the powers conferred upon
him. or the performance of his duties under this Act, or under any
order, rule or regulation made in pursuance of this Act, or for any
costs in connexion with any reference, appeal, action, suit or pro-
ceeding.

Actions against registrars.

123. Any person wrongfully deprived of land, or any estate or
interest in land, in consequence of fraud or misrepresentation in the
registration of any other person as owner of such land, estate or inter-
est, or in consequence of any error, omission or misdescription in any
certificate of title, or in any entry in the register, may bring and pro-
secute 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. The bringing or prosecuting of an action as afore-
said shall not prevent proceedings being taken against the registrar in
respect of any loss or damage not recovered in such action: provided
that no action shall in such case be brought against the registrar with-
out first proceeding as above provided, unless authorized by the fiat
of the attorney-general.

[124: N. Z. 1915. s. 198 (1), ante p. 506, omitting reference to
''void or voidable instrument. '"J

125. In case the person against whom such action for damages
may be brought as aforesaid shall be dead, or cannot be found within
the province, then in such case it shall be lawful to bring such action
for damages against the registrar as nominal defendant, for the pur-
pose of recovering the amount of the said damages and costs against
the assurance fund; and in any such case, if final judgment be recov-
ered, and also in any case in which damages may be awarded in any

5?4 APPENDIX OF STATUTES.

action as aforesaid, and the sheriff shall make return nulla bona, or
shall certify that the full amount with costs awarded cannot be recov-
ered from such person, the minister of finance and agriculture upon
receipt of a certificate of the court 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 assur-
ance fund.

126. Any person sustaining loss or damage through any omission,
mistake or misfeasance of the registrar, or of any of his officers or
clerks, in the execution of their respective duties under the provisions
of this Act, and any person deprived of any land, or of any estate or
interest in land, by the registration of any other person as owner of
such land, or by any error or omission or misdescription in any certifi-
cate of title, or in any entry or memorial in the register-book, and who
is barred from bringing 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, or where any damage has been sustained through any omis-
sion, mistake, or misfeasance of the registrar in the granting of a cer-
tificate of charges or certificate of incumbrance, bring an action against
the registrar as nominal defendant for recovery of damages; and in
case the plaintiff [&c, N. Z. 1915, ss. 187, 188 (1), ante p. 505.]

127. The minister of finance and agriculture shall pay the amount
of any judgment obtained, payable out of the assurance fund, notwith-
standing that there may not be a sufficient sum to the credit of the
assurance fund.

[128: N. Z. 1915, s. 189, ante p. 505.]

129. An action against a registrar shall 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.

130. No action for recovery of damages sustained through depri-
vation of land, or of any estate or interest in land, as hereinbefore
described, shall lie or be sustained against the registrar, or against
the assurance fund, or against the person by whose fraud, error, omis-
sion, misrepresentation, misdescription or wrongful act the person
entitled to the land, or some estate or interest therein, has been de-
prived thereof, unless such action be commenced within the period of
six years from the date of such deprivation: provided nevertheless
that any person, being at the time of such deprivation under the dis-
ability of infancy or unsoundness of mind, may bring such action
within six years from the date on which such disability shall have
ceased.

[131: V. 1915, s. 240, ante p. 453, omitting references to insol-
vency.]

[132: V. 1915, s. 241, ante p. 453, adding, "nor for

any error or shortage in area of any lot, block, or subdivision according
to any map or plan filed or deposited in the office of the registrar."]

[133: V. 1915, s. 253, ante p. 457.]

134. It shall in all cases be a bar to the bringing of any action
against a registrar or the assurance fund that the plaintiff in such
action, or the person through or under whom he claims, was served
with notice either personally or substitutional^, or not being served
with notice had knowledge, that the registrar was about to commit

BRITISH COLOMBIA. ;,;;,

the act through which the plaintiff claims to have been damnified,
unless such person so served or having such knowledge shall have
taken and prosecuted the proper proceedings to establish his claim to
the land or to prevent such action on the part of the registrar.

135. The last twelve preceding sections shall not apply to any
land the title to which is not registered in the register of indefeasible
fees.

Assurance fund, how formed.

136. The assurance fund shall be formed by deducting from the
amount of fees received by the registrar . . . the amount of twenty
per centum per annum. . . .

Judgments.

137. . . . (6) No judgment shall form a lien upon any lands
as against a registered owner thereof, or the holder of a registered
charge thereon where the registration of such person as owner or as
holder of a charge has been effected after a notice of not less than
fourteen days has been given by the registrar to the judgment creditor,
either personally or at his registered address, of the registrar's inten-
tion to effect registration of the aforesaid fee or charge free of such
judgment. If the judgment creditor claims a lien upon the said lands
by virtue of his judgment, he shall within the time fixed by the reg-
istrar's notice register a certificate of lis pendens in accordance with
section 34 of the Execution Act, otherwise the registrar may register
such fee or charge free from such judgment.

139. Upon application under this Act in the usual form, and pro-
duction only of the conveyance to the purchaser of lands sold under
the provisions of the Judgments Act or the Execution Act or the
Mechanics' Lien Act. the execution of which conveyance shall be
proved to the satisfaction of the registrar, the estate or interest in any
land so sold may be registered under this Act, and therefrom any
certificate of title outstanding in respect of the same land shall be
deemed to be cancelled as to such estate or interest.

Volu n tary con veyan ces.

141. Notwithstanding the provisions of any law or statute to the
contrary, no conveyance, grant, charge, lease, estate, incumbrance,
limitation of use or uses, which is executed in good faith, and duly
registered in the proper land registry office before the execution of the
conveyance to. and before the execution of any binding contract for
the conveyance to. any subsequent purchaser from the same grantor of
the same lands, tenements or hereditaments, or any part or parcel
thereof, or any rent, profit or commodity in or out of the same, shall
be or be deemed or taken to be, merely by reason of the absence of
a valuable consideration, void, frustrate or of none effect as against
such purchaser, or his heirs, executors, administrators or assigns, or
any person claiming by. from or under any of them.

142. Nothing in the last preceding section contained shall have
the effect of making valid any instrument which is, for any reason

576 APPENDIX OF STATUTES.

other than or in addition to the absence of a valuable consideration,
void under the said statute or otherwise.

Transcript of deeds.

143. It shall be the duty of the registrar, when requested, and
upon payment of the proper fee, to record in books to be kept for that
purpose ... all deeds and instruments in any manner affecting
land, or the title to any interest therein, by correctly transcribing or
copying the same. . . .

[144. Reference to such record shall be made in the register
books of the title to which such instruments relate, but such record
or reference shall not in any way have the effect of registration.

Transfer and cancellation of charges.

148. (1) When any Crown debt, charge, or issue has expired or
been satisfied, or discharged in whole or in part, or any interest in
land surrendered or released, the registrar shall upon satisfactory
proof thereof cancel the entry respecting same, wheresoever registered,
by a memorandum according to the circumstances in the form O in
the first schedule hereto, and if such cancellation is in whole shall also
cancel the entry made against the registration of the fee or of any
prior charge, as the case may be, by entering over same the word
" cancelled." The original or a duplicate of every document in support
of the cancellation shall be deposited with the registrar.

(2) The registrar shall cancel the registration of any judgment in
whole, or as to any specified land, upon satisfactory proof of the judg-
ment having been satisfied, or the whole or such specified land having
been released therefrom.

150. The registrar may, in the case of a lease or agreement for
sale and purchase of land, upon proof to his satisfaction of breach of
covenants and entry and recovery of possession by a lessor or vendor,
and upon thirty days' notice to the lessee or purchaser, and upon hear-
ing all parties attending, cancel the registration of the same upon the
register; and thereupon the lease or agreement, and the estate of the
lessee or purchaser as the case may be in the land described in the
lease or agreement, shall cease and determine, but without releasing
the said lessee or purchaser from his liability in respect of any cove-
nant in such lease or agreement, expressed or implied.

153. In every case of cancellation of a charge, Crown debt or
judgment, the estate or interest in respect of which such charge,
Crown debt or judgment shall have been registered, shall be deemed to
be discharged and released from the date of entry thereof on the reg-
ister; and in those cases where a reconveyance, surrender or transfer
would have been otherwise necessary, such memorandum in said form
O as aforesaid shall operate as a reconveyance, surrender or transfer
in favour of the persons entitled to the equity of the land in question,
and the charge, Crown debt or judgment shall no longer affect (sic)
in respect of which it was registered.

BRITISH COLUMBIA. .-,—

169. All title deeds, instruments, and documents deposited with
the registrar on any application or proceeding shall remain as a per-
petual deposit in his office, save in case registration be refused, when
all unregistered title deeds, instruments, documents, and maps de-
posited shall be returned to the applicant.

Powers of registrars.

170. It shall be lawful for the registrar or the examiner of titles
to exercise the following powers in addition to others conferred under
this Act, that is to say: —

(a) He may require any person desiring to effect any regis-
tration or cancellation of registration, or any other act,
matter or thing, to produce, or produce and deposit,
any grant, certificate of title, conveyance, bill of sale,
mortgage, deed, lease, will or any other instrument in his
possession or within his control, affecting the land or the
title thereto; and

(6) He may, for the purposes of this Act, administer oaths,
or in lieu of administering an oath may require any
person examined by him to make and subscribe a declara-
tion of the truth of the statement made by him in his
examination; and

(c, d) Upon such evidence as appears to him sufficient in
that behalf, correct errors in entries made, and supply
[&c., V. 1915, s. 233 (ii), ante p. 452.]

(e) He may by summons require any person having an in-
strument in his possession in any capacity to produce
before him any instrument in his possession or within his
control, affecting any land, mortgage or incumbrance, or
the title thereto, and if required to complete any registra-
tion, to deposit the same with him;

(/) He may summon any person, whose evidence may be
necessary or material in respect to any matter pending
before him, to appear and give evidence upon oath re-
specting such matter, and to produce any instrument or
evidence of title before such registrar, or before any other
person appointed under an order of such registrar. . . .

(g) He may. in all cases where any instrument is executed
by or on behalf of or in favour of any corporation, require
any person applying to register, file or deposit such in-
strument, to give him such evidence as he may deem
sufficient of the date of the incorporation, or of the license
or registration in this province, and may also from time
to time require such applicant to file a certified copy of
the charter or certificate of incorporation, and of the
memorandum of association, and of the articles of associa-
tion, of such corporation, or of such portions thereof as
he deems necessary. .....

170A. If it appears to the registrar that any certificate of title
or other instrument has been issued in error, or contains any mis-
description, or that any entry or endorsement has been made in error

R.T.L.- 37

5T8 APPENDIX OF STATUTES.

on any certificate of title or other instrument, or that any such certifi-
cate, instrument, entry or endorsement was fraudulently or wrongfully
obtained, he may, whether such certificate or instrument is in his cus-
tody or has been produced to him under a summons, so far as prac-
ticable without prejudicing rights conferred for value, on thirty days'
notice to all persons interested, cancel such certificate or instrument,
or correct any error in such certificate of title or other instrument, or
in any entry made thereon, or in any memorial, certificate, exempli-
fication or copy of any instrument made in or issued from the
land registry office, and may supply entries omitted to be mada:
provided always that in the correction of any such error he
shall not erase or render illegible the original words, and he
shall affix the date upon which such correction was made or entry
supplied; and every certificate of title so corrected, and every entry
so corrected or supplied, shall have like validity and effect as if such
error had not been made or such entry omitted.

170B. 170C. In case any person, summoned by the registrar to
produce or deposit a certificate of title or other instrument, refuses or
neglects [&c, V. 1915, ss. 80, 81, ante p. 414].

Rules and orders.
173. The Lieutenant-Governor in Council may from time to time —

(d) Order that registration in the register of absolute fees,
except in the case of under-surface rights, be discontinued
in respect of land comprised in any registration district
or in any portion or section thereof defined in such order,
or that application for registration in respect of certain
districts or portions or sections of districts defined in
such order shall, except as to under-surface rights, be for
an indefeasible fee only.

Schedule
First schedule.

Form L.

(Section 106.)

I, A.B. of in consideration of the sum of dollars,

do hereby grant and convey [or transfer and assign] unto CD. of
and to his heirs [or executors, administrators] and assigns,
all that piece of land , together with all my rights, powers,

estate and interest therein, as registered in the register of indefeas-
ible [or absolute fees or charges], vol. fol. No.

Dated this day of , 19

Signed, sealed and delivered ~\
in the presence of l A.B.

E.F. J

MAXITOBA. 579

MANITOBA.

Real Property Act

(R. S. 1913, c. 171).

None — This Act is a revision or consolidation of the 1902 Act and
its amendments, which are printed in a consolidated form in Can.
Torr. Syst. 404 et seq. Amendments of the 1913 Act down to and
including those of 1919 are embodied in the print following. Less
important portions are omitted, as in other jurisdictions. References
to the 1902 Act (M. 1902) indicate that the section to which the refer-
ence is appended is a re-enactment of M. 1902 as printed in Can. Torr.
Syst. ; these references are only made where a section is so far like an
enactment elsewhere printed that it has been considered unnecessary
to set it out here.

An Act respecting real property in the Province of Manitoba.

Interpretation.

2. (1) In this Act, and in all instruments purporting to be made,
executed or registered thereunder, unless the context otherwise
requires —

(a) The expression "land" means and includes land, mes-
suages, tenements, hereditaments, corporeal and incor-
poreal, of every kind and description, whatever the estate
or interest therein may be and whether legal or equitable,
together with all paths, passages, ways, watercourses,
liberties, privileges and easements appertaining thereto,
and all trees and timber thereon, and all mines, minerals
and quarries, unless any such are specially excepted;
[(&) : "Owner," "registered owner"; B. C. 1911. s. 2, ante
p. 552. M. 1902, s. 2 (o).J

(d) The expression " mortgage " means and includes any
charge on land created for securing a debt or loan, or
any hypothecation of such charge;

(e)-(i): "Mortgagee," "mortgagor," "incumbrance," "in-
cumbrancer," " incumbrancee " ; B. C. 1911, s. 2, ante p.
552. M. 1902, s. 2 (e-i).]

(;') The expression " person of unsound mind," means and
includes any person, not an infant, who is incapable from
infirmity of mind of managing his own affairs;

(k) The expression " instrument " means and includes any
certificate of title, certificate of charge, book, plan or
document in writing relating to any dealing with land, or
creating any mortgage, incumbrance or lien thereon, or
evidencing title thereto, or a duplicate thereof;

(p) The expression "transmission" applies to every change
of ownership under assignment for benefit of creditors,

580 APPENDIX OF STATUTES.

or under foreclosure or sale under mortgage or incum-
brance, and to every involuntary change of ownership of
land, mortgage or incumbrance;

(g) The expressions "grant," "patent," or "Crown grant,"
respectively, mean and include any grant of Crown land,
whether direct from his Majesty or pursuant to the pro-
visions of any statute, and whether such land was held
by the Crown in the right of Canada or in the right of
any province thereof;

(r) The expression "endorsed" means and includes anything
written upon any instrument or other document, or in
the margin thereof, or at the foot thereof;

(s) The expression "old (system" means the system of
registration provided by the Registry Act;

(t) The expression "new system" means the system of reg-
istration provided by this Act;

(u) Land shall be deemed to be " subject to the new system "
while an application is pending to bring such land under
the new system, and before a certificate of title shall have
issued therefor; and land shall be deemed to be "under
the new system " after a certificate of title shall have
issued therefor;

{v) The expressions "land titles district" and "district"
respectively mean a land titles district created or con-
tinued under this Act; and the expression "registration
district " means a registration district created or con-
tinued under the Registry Act, and not brought within
any land titles district;

(w) The expression "registrar" means a registrar under the
Registry Act; and the expression "district registrar"
means a district registrar under this Act;

(x) The expression " register " shall mean the volumes kept
in a land titles office, in which certificates of title are
entered and bound.

[(3): N. Z. 1915, s. 223, ante p. 507. M. 1902, s. 2 (z).]

Land titles offices — district registrars — officers.

12. The district registrar shall keep a book to be called the day-
book, in which shall be entered, by its day-book number, every instru-
ment which is registered, with the day. hour and minute of filing;
and for the purpose of settling priorities, the time of filing shall be
taken to be the time of registration. The district registrar in entering
memorials upon the certificate of title, and endorsing a memorial upon
an instrument registered, shall take the time of filing from the day-
book as the time of registration. ....

14. ... no registration heretofore or hereafter made under
the old system shall affect any land which at the time of such regis-
tration was or is subject to or under the new system, so long as such
land remains subject to or under the new system; nor shall any reg-

MANITOBA. 581

istration heretofore or hereafter made under the new system affect any
land which is not subject to or under the new system.

[19: B. C. 1911, s. 122, ante p. 573. M. 1902, s. 19.]
Manner of bringing land under neiv system.

28. The owner of any estate or interest in land, whether legal or
equitable, may by himself or his duly authorized attorney or agent
apply to the proper district registrar to have his estate or interest, or
the whole title to the land, registered under the new system, but it
shall be in the discretion of the district registrar to refuse to entertain
such an application unless all persons other than the applicant who
are interested in the land shall be consenting parties to the applica-
tion.

29 [1914, s. 1]. In every case in which a patent from the Crown,
issued after the coming into force of this Act, for any land in any part
of the province shall be filed or registered in any registry or land
titles office, such lands shall at once be subject to the said Act and its
amendments, except as to agreements for the sale of such land, and
no instruments purporting to grant, transfer, mortgage or hypothecate
the same shall thereafter be registered under the old system, excepting
however agreements for sale as aforesaid; and in case the patentee is
the owner of the land at the time of such filing the district registrar
shall, upon the patentee making a statutory declaration in form satis-
factory to him and upon payment of the proper fees for bringing the
land under the said Act, issue the proper certificate of title without
requiring the filing of the usual application therefor.

30 [1914; s. 2]. No instrument purporting to grant, transfer,
mortgage or hypothecate any land in the territory added to the pro-
vince of Manitoba by the Act c. 22 of the Dominion statutes of 1912
shall be registered under the old system of registration, excepting
however agreements for sale of such land.

31 [Am. 1914, s. 3]. (1) Any certificate of title for any of the
lands referred to in the next preceding section, heretofore issued under
the Land Titles Act of the Parliament of Canada shall, on being pro-
duced to and filed with the proper district registrar, be deemed to be
of force and effect equivalent to that of a patent from the Crown for
the land, and upon the holder of the certificate making a statutory
declaration in form satisfactory to the district registrar, and upon
production of such other evidence as the district registrar may require
and paying the proper fees, the district registrar may issue the proper
certificate of title under the said Act for the land without requiring
the filing of the usual application therefor.

(2) All certificates of title that had issued pursuant to the Land
Titles Act of the Parliament of Canada and any amendments thereto,
for land in the said added district, shall be deemed to have been cer-
tificates of title within the meaning of the Real Property Act of Mani-
toba, in so far as any registrations made in the Neepawa land titles
office from the 15th May, 1912, to the 13th February, 1913, are con-
cerned which affected any of the land described in said certificates.

32. The Lieutenant-Governor in Council may by order direct a
district registrar to bring under this Act any land belonging to his

582 APPENDIX OF STATUTES.

Majesty in the right of Manitoba, and the filing with a district regis-
trar of such order-in-council shall in all respects have the same force
and effect as the filing of an application to bring land under this Act.

33. Contiguous country lands not exceeding altogether two thous-
and acres (a road not to be considered a break in the contiguity), or
any number of lots under the same plan of subdivision, may be in-
cluded in the same application; but in no case shall a first or subse-
quent certificate of title issue for more than fifty lots, or for unsub-
divided lands which are not contiguous or which contain more than
two thousand acres. The provisions of the section shall not apply to
cases within the last preceding section.

34. When land subject to mortgage is brought under the new
system, all rights, remedies and matters of contract between the mort-
gagor and mortgagee in relation to such land shall remain -intact, as if
such land were under the old system.

35. Notwithstanding anything in this Act contained, an applica-
tion shall 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 application for an undivided interest shall be permitted, unless
the application for all other undivided interests in the same land are
withdrawn or rejected.

36. The father, or if the father be dead the mother or other guar-
dian of any infant, or the committee or guardian of any person of
unsound mind, may apply on behalf of such infant or person of un-
sound mind to bring land under this Act; and a person holding a power
of attorney authorizing the sale of a freehold or other estate in any
land may apply in respect of such land in the name and on behalf of
the owner, unless such power of attorney expressly prohibits him from
so doing.

37. Upon the filing of an application to bring land under this Act.
whether or not the application is made by any person entitled to make
it under this Act, and whether or not it is in any respect in accordance
with this Act, such land shall become subject to the new system, and
no registration under the old system shall affect such land unless
such application be withdrawn or rejected by the district registrar, in
either of which events the land shall thereafter, until a further appli-
cation be filed to bring it under the new system, be dealt with under
the old system.

38. Any person, except a tax sale purchaser, applying to bring
land under the new system may in his application, or upon special
request in writing addressed to the district registrar prior to the
drafting of the certificate of title, direct the certificate of title for such
land, or any part thereof, to be issued in the name of some other
person, or in the names of himself and some other person; and such
direction, whether comprised in an application or in a special request,
shall from the time of its filing with the district registrar have the
effect of conveying and transferring to such person, or to the applicant
and such other person as the case may be, as regards such land, all the
estate or interest whether legal or equitable which the applicant is
entitled to and directs to be transferred, as fully and effectually as if
such estate or interest were transferred by deed and such deed were
duly registered.

[39: V. 1915, s. 33, ante p. 406. "M. 1902, s. 36.]

MANITOBA. 583

43. If the district registrar find that some person other than the
applicant has. or appears to have, some right or claim to or against
the land in question, he may issue a notice and cause such person to be
served with a copy thereof, to the effect that no certificate of title will
issue for such land pursuant to the application, unless the person
appearing to have such right or claim shall, within the time limited by
the notice, which time shall in each case be fixed by the district reg-
istrar, take proceedings to stop the issue of such certificate of title.

48. In the investigation of titles every patent which has been
issued for ten years or upwards and which remains uncancelled, and
as to which the district registrar has no notice that proceedings have
been taken to set the same aside, shall be accepted by the district
registrar as final, and it shall not be necessary to enquire whether such
patent has been properly issued or not; but in all such cases the
assurance fee to be paid under this Act shall be increased to one-half
of one per cent, unless the district registrar shall in special cases
otherwise direct.

49. The district registrar, on being satisfied of the due service of
all notices that he may think requisite, and that the title to the land
is safe-holding, may bring such land under the new system, and issue
a certificate of title therefor to the person who appears to be entitled
to the same.

Tax sales.

[50-52: B. C. 1911, ss. 36-40, ante p. 559. M. 1902, ss. 46-48.3

Withdrawal of land from new system.

53. [(1, 2): On. 1914, s. 129 (1, 2), ante. p. 544J

(3) In such certificate the registrar-general shall state in whom at
the time of the issue of such certificate he finds the title to the
said land vested under the new system, and shall also state what
mortgages, incumbrances, liens or interests said land is subject to;
and upon the registration of such certificate under the Registry Act
the title to the said land shall at once become vested under the old
system in such person so named for all the right, title and interest
mentioned in such certificate of withdrawal, subject only to the mort-
gages, incumbrances, liens or interests set forth in such certificate;
and all rights, powers and remedies existing under said mortgages,
incumbrances, liens or interests shall remain in full force and virtue,
and the instruments under which the same were placed on record
under the new system shall have the same force and effect as if the
same had been instruments under the old system, and in the case of
mortgages and incumbrances the same shall be construed as if the
provisions of an Act respecting Short Forms of Indentures were in-
corporated in the said mortgages and incumbrances, and the said
mortgages and incumbrances shall have the benefit of all the rights,
power and remedies conferred by or secured under the said Act. . . .

Poicers and duties of district registrars.

54. In addition to any other powers conferred under this Act, a
district registrar may —

;)(S4 APPENDIX OF STATUTES.

(a) Enter a caveat on behalf of his Majesty [&c, B. C. 1911,

s. 62A, ante p. 564.]
[(b): B. C. 1911, s. 170 (e), ante p. 577, down to "title

thereto."]
[(c): B. C. 1911, s. 170 (/), ante p. 577.]
[55-57: B. C. 170A-170C, ante p. 577.]

58. In any proceeding respecting land, or in respect of any
transaction or contract relating thereto, or in respect of any
instrument, caveat, memorial or other entry affecting land, a judge
may by decree or order direct the district registrar to cancel, correct,
substitute, or issue any certificate of title, or make any endorsement
or entry on any instrument, or otherwise to do every such act and
make every such entry as may be necessary to give effect to the judg-
ment, decree or order of the Court: provided that the district registrar
shall not issue any certificate of title by order of the court unless the
title of the person to whom the certificate of title is directed to issue
has been found upon investigation by the district registrar to be a good
safe-holding title.

60. In the event of a duplicate certificate of title or other instru-
ment being lost or destroyed, the district registrar may dispense with
the production of the duplicate certificate of title or other instrument
upon any dealing; and upon the registration of such dealing the dis-
trict registrar shall note in the register that no entry of such dealing
has been made on the duplicate certificate of title or other instrument,
and the registration of such dealing shall thereupon be valid and
effectual: provided always that before registering such dealing, the
district registrar shall satisfy himself that such certificate of title or
instrument has not been deposited by way of lien or as security for
any loan, and of the reasons for its non-production, and in the case of
the duplicate certificate of title being lost, shall give at least fourteen
days' notice of his intention to dispense with production thereof, in
such newspaper as he shall think proper. The number of insertions in
such newspaper, and the form of the notice, shall be settled by the
district registrar.

61. In the event of a duplicate certificate of title being lost or
destroyed, and after proceeding as in the last section set forth, the dis-
trict registrar may issue a provisional [&c., N. Z. 1915. s. 80 (2, 3, 5),
ante p. 486. M. 1902, s. 55.]

Plans.

63. Whenever upon any plan of subdivision . . . filed or reg-
istered . . . any portion of such subdivision is shewn as a street,
lane, avenue, road, highway, park or public square, and is not desig-
nated thereon to be of a private nature, the marking or indicating on
any such plan of any street, lane, avenue, road, highway, park or
public square shall be deemed to be a dedication to the public of such
portion thereof, for the purpose and object indicated on or to be inferred
from such marking on such plan. . . .

[64: B. C. 1911, s. 94, ante p. 569. M. 1902, s. 56 (2).]

[68: B. C. 1911, s. 100, ante p. 569. M. 1902, s. 61.]

MANITOBA. 585

Registration of title.

72. Every certificate of title shall be deemed and taken to be issued
under and for the purpose of this Act, as soon as the same shall have
been signed and sealed by the district registrar; and every instrument
purporting to affect land under the new system shall be deemed to be
registered, as soon as a memorial thereof endorsed thereon shall have
been signed and sealed by the district registrar.

73. Every certificate of title shall issue in duplicate in the form
of schedule A to this Act, and each duplicate shall have the like force
and effect of the other, and each shall be known as the certificate of
title; but whenever the expression "duplicate certificate of title" is
used, such expression shall be held to refer exclusively to the duplicate
which is not entered and bound in the register.

74. Whenever a district registrar is required to make any entry in
the register, he shall make a like entry on the duplicate certificate of
title, unless production thereof is dispensed with by him under the
provisions of this Act.

75. In the interpretation of this AcJ the date of a certificate of
title shall be the date appearing in the body thereof, or the date upon
which the last mortgage, incumbrance or lease created under the hand
of a registered owner of the land was registered, whichever shall be
the later date.

76. Every certificate of title issued to an executor or administrator
or trustee under a will, whether such certificate issued on the first
bringing of the land under this Act, or upon a transmission or other-
wise, shall describe the owner as such executor, administrator or trus-
tee, and the will shall be deemed to be embodied in and to form part
of the certificate of title; and the executor, administrator or trustee
shall when so described hold the land in respect of which he is reg-
istered upon the trusts and for the purposes to which the same is sub-
ject by law, and before registering any dealing with the land the dis-
trict registrar shall satisfy himself that such dealing is in accordance
with such trusts or purposes.

Effect of registration of title.

78. (1) The land mentioned in any certificate of title granted
under this Act shall, by implication and without any special mention
in the certificate of title, unless the contrary be expressly declared, be
deemed to be- subject to —

[(a) (6): B. C. 1911. s. 22 (1) (a, c), ante p. 555. M. 1902,

s. 70 (a 6).]
(c) Any unregistered subsisting right of way or other ease-
ment, howsoever created, upon, over or in respect of the
land;
£(d) : B. C. 1911, s. 22 (1) (d), ante p, 556. M. 1902, s. 70 (d).]
(e) Any mechanics' lien affecting the land;
(/) Any order of attachment, judgment, decree, or order for
the payment of money against the registered owner of the
land, which may have been respectively registered since
the date of the certificate of title, and which order of
attachment, judgment, decree or order has been main

586 APPENDIX OF STATUTES.

tained in force under the provisions of any statute of this
province from time to time relating thereto;

(g) Any certificate of lis pendens issued out of any court of
competent jurisdiction in this province, and duly regis-
tered since the date of the certificate of title;

(7t) Any right of expropriation by statute;

(i) The provisions of section 82;

(j) Caveats affecting the land, registered since the date of the
certificate of title.
(2) All public highways embraced in the description of the land
included in any certificate shall be deemed to be excluded.

79. Every certificate of title hereafter or heretofore issued under
this Act shall, so long as the same remains in force and uncancelled,
be conclusive evidence at law and in equity, against his Majesty and
all persons whomsoever that the person named in such certificate is
entitled to the land described therein for the estate or interest therein
specified, subject however to the right of any person to shew that the
land described in such certificate is subject to any of the exceptions or
reservations mentioned in sections 78 or 82, or to shew fraud wherein
the registered owner, mortgagee or incumbrancer (sic) has partici-
pated or colluded, and as against such registered owner, mortgagee or
incumbrancee (sic) ; but the onus of proving that such certificate is so
subject, or of proving such fraud, shall be upon the person alleging
the same.

80. If more than one certificate of title has been issued in respect
of any particular estate or interest in any land, the person claiming
under the prior certificate shall be entitled to such estate or interest
in such land, and that person shall be deemed to hold under a prior
certificate who is the holder of, or whose claim is derived directly or
indirectly from the person who was the holder of, the earliest certifi-
cate issued.

[81: B. C. 1911, s. 25, ante p. 556. M. 1902, s. 73 J

[82, 83: B. C. 1911, s. 22 (2, 3), ante p. 556. M. 1902, ss. 74. 75 J

[84, 85: B. C. 1911, ss. 25A, 25B, ante p. 556, adding at end of

clause (d): "as against the registered owner of such other land, not

being a transferee of such other land, or deriving from or through a

transferee thereof, bona fide for value." M. 1902, ss. 76, 77!]

Registrations.

86. When land under the new system is intended to be trans-
ferred, the registered owner may execute a transfer in the form con-
tained in schedule B to this Act, which transfer shall contain an
accurate statement of the estate, interest, or easement intended to be
transferred or created, and a memorandum of all leases, mortgages
or incumbrances to which the same may be subject, and upon the
registration of such transfer the duplicate certificate of title shall be
delivered up for cancellation in whole or part.

87. Any owner of land registered under this Act may make a
valid transfer to himself jointly with any other person, and the
registered owners may make a valid transfer to one of their number

max iron a. 5g<j

either solely or jointly with some other person, and an executor or
administrator may make a valid transfer to himself individually.

88. No words of limitation shall be necessary in any transfer of
land in order to convey all or any title therein; but every transfer
shall, when registered, operate as an absolute transfer of all such right
and title as the transferor had therein at the time of its execution,
unless a contrary intention be expressed in such transfer or instru-
ment; but nothing herein contained shall preclude any transfer from
operating by way of estoppel.

89. Every instrument presented for registration under the new
system shall be registered in the order of time in which the same is
presented for that purpose, and instruments registered in respect of or
affecting the same estate or interest shall, notwithstanding any express,
implied or constructive notice, be entitled to priority according to the
time of registration; and the district registrar upon registration
thereof shall file the same or a duplicate thereof in his office; and so
soon as registered every instrument shall for the purpose of this Act
be deemed and be taken to be embodied in the register as part and
parcel thereof, and such instrument when so constructively embodied
shall thereupon create, transfer, surrender or discharge, as the case
may be, the lien, estate or interest therein mentioned in the land
mentioned in the said instrument.

90. When the memorial of any instrument is entered in the reg-
ister, the district registrar shall record the like memorial on the dupli-
cate certificate or other instrument evidencing title to the land, incum-
brance or mortgage intended to be dealt with or in any way affected
unless the district registrar shall dispense with the production of the
same; and he shall endorse on every instrument so registered a certi-
ficate of the day and minute at which the instrument was presented
for registration, and shall authenticate such certificate by signing his
name and affixing his seal thereto; and such certificate shall be
received in all courts of law as conclusive evidence that such instru-
ment was duly registered at the time therein mentioned, without proof
of the signature or seal of the district registrar.

91. The district registrar shall have power to reject any instru-
ment appearing to be unfit for registration, and shall not register any
instrument purporting to transfer or otherwise deal with or affect any
land under the new system, except in manner herein provided for regis-
tration under the new system, nor unless such instrument be in accord-
ance with the provisions of this Act as applicable to the new system;
but any instrument substantially in conformity with the schedules of
this Act, or an instrument of a like nature, shall be sufficient; and 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, until such
instrument be registered in accordance with this Act: provided how-
ever that where an instrument in accordance with the forms in use, or
sufficient to pass an estate or interest in land, under the old system,
deals with land under the new system, the registrar-general 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 operative parts thereof as. and shall by implication be
held to contain all such covenants as are implied in. an instrument of

588 APPENDIX OF STATUTES.

a like nature under the new system; and if it is a mortgage the mort-
gagee may, for the purpose of foreclosure or sale under the mortgage,
elect to proceed either under the provisions of this Act or as if the
land were subject to the old system; but in case he proceeds under the
provisions of this Act, and the 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.

92. Except as in the last preceding section mentioned, and except
instruments affecting land without specific description and mechanics'
liens, no instrument shall be registered under the new system, unless
all the land affected by such instrument be under the operation of the
new system and within the same land titles district.

93. Certificates of judgment and attachment presented for regis-
tration shall be registered under both the new system and the old
system.

94. Instruments executed by a registered owner and presented for
registration under this Act shall be accompanied by affidavits as to
execution, identity and age, and such other evidence as the district
registrar may require.

95. When any instrument is presented for registration and a
registered certificate of judgment appears to affect the land described
in such instrument, but the applicant for registration claims that the
certificate of judgment does not affect the land, or is not equitably
entitled to priority over such instrument notwithstanding the priority
of registration of the certificate of judgment, the district registrar may
take such evidence under oath or otherwise in the matter as to him
may seem sufficient, and may thereupon decide whether the certificate
of judgment does or does not affect the land, or whether the certificate
of judgment is or is not entitled to priority over such instrument, and
may register the instrument according to such decision; provided that
such decision of the district registrar shall be subject to appeal as in
other cases.

96. Where land under this Act is subject to, or has as appurte-
nant thereto or enjoyed therewith, any rights, privileges or easements
under a party wall agreement, whether the agreement was registered
before or after the land was brought under this Act, such rights,
privileges or easements, and all covenants relating thereto, shall be
deemed to run with the land, and any instrument registered under this
Act shall without special mention thereof in such instrument be
deemed to be subject to, or to carry with it, all such rights, privileges,
easements and covenants, to the same extent as if such instrument
were made subject to, or contained an express assignment or acknow-
ledgment of. such party wall agreement, and all rights, privileges, ease-
ments and covenants thereunder.

97. in every instrument transferring an estate or interest in land
under the new system subject to mortgage or incumbrance, there shall
be implied, unless otherwise expressed, the following covenant by the
transferee with the transferor, that is to say, that such transferee shall
pay the interest, annuity or rent-charge secured by such mortgage or
incumbrance, after the rate and at the time specified in the instrument
creating the same, and shall indemnify and keep harmless the trans-
feror from and against the principal sum or other moneys secured by
such instrument, and from and against all liability in respect of any of

MANITOBA. 589

the covenants therein contained, or under this Act implied, on the part
of the transferor.

98. Every instrument signed by an owner, or other person claim-
ing through or under him, purporting to pass an estate or interest in
land, or to create any mortgage or incumbrance, for the registration of
which provision is made by this Act, shall until registered be deemed
to confer upon the person intended to take under such instrument,
or others claiming through or under him. a right or claim to the regis-
tration of such mortgage, incumbrance, estate or interest.

[99: V. 1915, s. 179, ante p. 441. M. 1902, s. 91. J

100. Except as mentioned in section 76. and except in case of
land held in trust for or to be used in connexion with any church, the
district registrar shall not make any entry in the register containing
any notice of trusts, whether express, implied or constructive; and
except as in said section 76 mentioned, the describing an owner as a
trustee, whether the beneficiary or object of the trust be mentioned
or not, shall not impose upon the district registrar the duty of making
enquiry as to the power of the owner in respect of the land, mortgage,
incumbrance or charge, or the money secured thereby or otherwise, but
(subject to the registration of any caveat) the land, mortgage, incum-
brance or charge may be dealt with as if such description had not
been inserted.

Leases.

101. When land under the new system is intended to be leased
or demised for a life or lives, or for any term of years, the owner may
execute a lease in the form contained in schedule C to this Act, setting
forth therein all mortgages, incumbrances and liens to which the land
is subject, which lease may be registered, and a certificate of title for
leasehold estate may issue to the lessee.

[102-104: N. Z. 1915, ss. 97-99 (2), ante p. 490, adding at end of
s. 102: "accidents and damage to buildings from fire, lightning, storms
and tempest, and reasonable wear and tear, excepted "; and in s. 103
substituting " two calendar months " for " six months." M. 1902, ss.
94-96.]

Mortgages and incumbrances.

105. During the time an application is pending to bring land
under this Act. any mortgage or incumbrance affecting the land may
be filed with the district registrar, who may upon the issue of the
certificate of title endorse thereon a memorandum of such mortgage or
incumbrance; and should more than one mortgage or incumbrance be
filed, they shall be entitled to priority in the order in which they
have been filed.

106. Any assignment or mortgage of any mortgage or incum-
brance to which land was subject when it was brought under this Act
whether such assignment or sub-mortgage be made before or after the
land was brought under this Act. may be made according to the forms
in use under the old system, and may be registered under the new
system in the same manner as other instruments of a like nature
under the new system.

107. Whenever any land, mortgage or incumbrance under the new
system is intended to be charged or made security in favour of any

500 APPENDIX OF STATUTES.

mortgagee, the owner shall execute a memorandum of mortgage in
the form contained in schedule D to this Act, or to the like effect; and
whenever such land is intended to be charged or made security for
the payment of an annuity, rent-charge or sum of money in favour of
any incumbrancee, the owner shall execute a memorandum of incum-
brance in the form contained in schedule E to this Act, or to the like
effect; and every such instrument shall contain an accurate statement
of all mortgages or incumbrances affecting the same.

108. A mortgage or an incumbrance under the new system shall
have effect as security, but shall not operate as a transfer of land
thereby charged, or of any estate or interest therein.

109. Mortgages or incumbrances may be transferred by a transfer
executed in the form contained in schedule F to this Act, and registered
in the same manner as instruments of a similar nature under this
Act. A mortgagee may transfer a part of the sum secured by the
mortgage, 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 registrar shall enter on the certificate of
title a memorial of the amount of the mortgage so transferred, and
how the sum so transferred is to rank.

110. Upon the registration of any transfer or mortgage of a mort-
gage, incumbrance or lease, the mortgage or incumbrance, or the
estate and interest of the transferor as set forth in such instrument,
with all rights, powers and privileges thereto belonging or appertain-
ing, shall pass to the transferee, and such transferee 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, incumbrancee or
lessee of such land, estate or interest.

111. By virtue of every such transfer or mortgage of a mortgage,
incumbrance or lease, the right to sue thereupon and to recover [&c,
N. Z. 1915, s. 90, ante p. 489. M. 1902, s. 103.J

112. Upon the production of any memorandum of discharge of
mortgage or incumbrance, duly executed, discharging the whole or
part of such mortgage or incumbrance, or the whole or part of the
land comprised in such mortgage or incumbrance, from the moneys
thereby secured, the district registrar shall make an entry in the
register noting that such mortgage or incumbrance is discharged wholly
or partially, or that part of the land is discharged as aforesaid, as the
case may require; and upon such entry being made, such mortgage or
incumbrance shall be released to the extent named in such memoran-
dum of discharge.

[113: N. S. W. 1900, s. 66 (1, 2), Aust. Torr. Syst. 116. M. 1902.
s. 105.]

114. The mortgagee or incumbrancee upon default [&c, V. 1915,
s. 151, ante p. 432. M. 1902, s. 106 J

115 [Am. 1915, s. 1]. Besides his other remedies, every first
mortgagee or incumbrancee for the time being shall be entitled, as
often [&c, V. 1915, s. 152 ante p. 432, down to " such distress and
sale," continuing: 3 After receipt of such application, the occupier or
tenant shall pay over to the mortgagee or incumbrancee all rents dup

MANITOBA. 591

or accruing due by him from time to time in respect of his occupation
of the premises, to the extent of such overdue interest or annuity, and
any payment of such rent to the mortgagor or incumbrancer there-
after shall be no protection to the occupier or tenant against such right
of distress, which may be exercised from time to time without the
making of any fresh application, as often as any such rent shall fall
due and be in arrear for seven days, until such arrear of interest or
annuity and all costs of such distress or distresses shall be fully paid:
provided that [&c, to end of V. 1915. s. 152. J

116. In addition to and concurrently with the rights and powers
conferred on a first mortgagee, every present and future first mort-
gagee for the time being of land under this Act shall, until a discharge
[&c. V. 1915, s. 156, ante p. 433. M. 1902, s. 108.J

117. In so far as any limitation is imposed by the Real Property
Limitation Act on the rights, remedies, or powers under mortgages,
the same shall be held not to apply to mortgagees or incumbrancees in
mortgages or incumbrances heretofore or hereafter made under this
Act, except as to the liability under covenants for payment of any
moneys secured thereby. This section shall be retroactive.

118. If default be made in the payment of the principal sum.
interest, annuity or rent-charge, or any part thereof, secured by any
mortgage or incumbrance registered under the new system, or if
default be made in the observance of any covenant expressed in any
mortgage or incumbrance or that is herein declared to be implied in
such instrument, and if 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, the mortgagee or incumbrancee may
forthwith, after giving written notice, a copy of which shall be filed
in the land titles office, to the said mortgagor or incumbrancer, 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
mortgage, incumbrance or lien upon, or estate, right or interest in or to
the lands subsequent to such first-named mortgage or incumbrance, of
his intention in that behalf, without any further consent or concur-
rence 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 may make any lease of the same or of any
part thereof as he may see fit, and may also in such notice require the
mortgagor or incumbrancer, and such other interested persons as
aforesaid, to pay within a time to be specified in such notice the money
then due or owing on such mortgage or incumbrance, or to observe
the covenants therein expressed or implied as the case may be, and
that all remedies competent will be resorted to unless such default
be remedied.

119 [1919. s. 2]. (1) If such default in payment or in the obser-
vance of any covenant continues for the further space of one calendar
month from the date of service of such notice, such mortgagee or in-
cumbrancee, or his transferee or assignee, may make application in
writing to the district registrar for an order permitting him to sell the
land so mortgaged or incumbered or any part thereof, and all the estate
or interest therein of the mortgagor or incumbrancer, and of the other
interested persons referred to in the last preceding section. Such
application shall be accompanied by such proof of the matters stated by

592 APPENDIX OF STATUTES.

the applicant, and by such other evidence, as the district registrar may
require.

(2) The district registrar may thereupon make an order authoriz-
ing and empowering the applicant to sell such lands in such manner as
the district registrar may direct, and either altogether or in lots, by
public auction or by private contract, or by both such modes of sale, and
subject to such conditions as the district registrar may think fit.

(3) Provided that if the mortgage or incumbrance contains a pro-
vision that the sale may take place without any notice being served on
any of the parties, the district registrar may order such sale to take
place accordingly.

120. The mortgagee or incumbrancee may make and execute all
such instruments as shall be necessary for the sale or enjoyment of
the premises; and all such rules, contracts, matters and things hereby
authorized shall be as valid and effectual as if the mortgagor or in-
cumbrancer and other persons as aforesaid had made, done, or executed
the same; and the receipt in writing of the mortgagee or incumbrancee
shall be a sufficient discharge to the purchaser of such land, estate or
interest, or of any portion thereof, for so much of his purchase money
as may thereby be expressed to be received; and no such purchaser
shall be answerable for the loss, misapplication or non-application, or
be obliged to see to the application, of the purchase money by him
paid, nor shall he be obliged to enquire as to the fact of any default or
notice having been made or given as aforesaid, or how the purchase
money to arise from the sale of any such land, estate or interest shall
be applied. Such purchase money shall be applied, first, in payment oi
the expenses occasioned by such sale; secondly, in payment of tho
money which may then be due or owing to the mortgagee or incum-
brancee; thirdly, in payment of subsequent mortgages, incumbrances
or liens (if any) in the order of their priority; and fourthly, the
surplus (if any) shall be paid to the owner, mortgagor or incum-
brancer, as the case may be.

121. Upon the registration of any memorandum or instrument or
transfer executed by a mortgagee or incumbrancee for the purpose of
such sale as aforesaid, or by a mortgagee selling under the power of
sale in any mortgage which affected the land when the first certificate
of title issued therefor, the estate or interest of the owner of the land
mortgaged or incumbered shall pass to and vest in the purchaser, freed
and discharged from all liability on account of such mortgage or
incumbrance, and from any mortgage, lien, charge or incumbrance
created by any instrument registered subsequent thereto, and the pur-
chaser shall be entitled to receive a certificate of title for the same.

121A [1914. s. 61. Whenever a mortgage heretofore made, pur-
porting to be made in pursuance of the Real Property Act, contains a
power of sale which provides for a sale without notice, the mortgagee,
his heirs, executors, administrators, successors or assigns, shall be
held to have been always entitled to take proceedings to sell under the
same, according to the tenor of the power, as if the district registrar
had at the time of such rule ordered the same to take place under sec-
tion 119 of the said Act, provided default has continued under said
mortgage for a period of ten years or more at the date of such sale:
provided however that no purchaser under such power of sale shall be
registered as owner unless the registrar-general shall approve of the

MANITOBA. 593

sale; and all such sales in cases where certificates of title have already
issued are hereby confirmed and declared valid.

122 [1917, s. 1]. (1) Whenever default has been made in payment
of the principal or interest moneys secured by a mortgage or incum-
brance registered under the new or old system, or filed with the dis-
trict registrar under section 105 of this Act. and such default continues
for six months under new system mortgages, and for one year under
any other mortgages above referred to. after the time for payment men-
tioned in the mortgage or incumbrance, the mortgagee or incumbrancee,
or his transferee or assign, may make application in writing to the
district registrar for an order of foreclosure; and such application
shall state that such default has been made and has continued for the
period aforesaid, and that the land mortgaged or incumbered has been
offered for sale at public auction after a notice of sale served as pro-
vided by the Real Property Act or by the terms of the mortgage, and
that the amount of the highest bid at such sale was not sufficient to
satisfy the moneys secured by such mortgage or incumbrance, together
with the expenses occasioned by such sale; and such application shall
be accompanied by such proof of the matters stated by the applicant,
and by such other evidence, as the district registrar may require.

(2) The district registrar shall thereupon cause to be served on
the mortgagor or incumbrancer, his executors, administrators or
assigns, and every other person appearing at the time of filing such
application to have any mortgage, incumbrance or lien upon, or estate,
right or interest in, the lands subsequent to the first-named mortgage
or incumbrance, a notice requiring them within the time limited by
such notice to redeem the land from said mortgage or incumbrance,
which time shall not be less than one month from the date of service
of such notice.

[Notice not to be served on persons whose interest ceased before
foreclosure; district registrar may extend time for redemption.]

(3) Unless the district registrar shall see fit to otherwise order,
the notice of intention to sell under new system mortgages, or of fore-
closure proceedings under either old or new system mortgages, or the
notice requiring redemption, shall be served personally on such owner,
mortgagor and incumbrancer, 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 mort-
gaged lands, or 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.

(4) Before the foreclosure proceedings mentioned in this section
shall apply, the land affected must be made under the Real Property
Act. In addition to the parties heretofore entitled to make an appli-
cation to bring land under the operation of the Real Property Act, such
application may in the discretion of the district registrar be made by
the mortgagee or incumbrancee, or his transferee or his assign.

[123: V. 1915, s. 171. ante, p. 438. M. 1902, s. 114.J
124. For the purpose of this Act the district registrar, examiner
of titles, or other officers of the land titles office, shall not have notice
of or be bound by any proceedings taken by any mortgagee or incum-

K.T.L.— 38

5U4 APPENDIX OB1 STATUTES.

brancee under his mortgage, security or incumbrance for the purpose
of foreclosing, selling or otherwise realizing upon his said security or
incumbrance, unless such mortgagee or incumbrancee shall have filed
a certificate of lis pendens, or in case of proceedings under power of
sale, a notice of such proceedings in the land titles office for the dis-
trict in which the land is situated or registered under the new system.
[125: V. 1915, s. 165, ante p. 436. M. 1902, s. 116.]

126. If default has occurred in making any payment due under
any mortgage, or in the observance of any covenant contained therein,
and under the terms of the mortgage by reason of such default the
whole principal and interest secured thereby shall have become due and
payable, the mortgagor may, notwithstanding any provisions to the con-
trary and at any time prior to sale or foreclosure under a mortgage,
perform such covenant or pay such arrears as may be in default under
the mortgage, together with costs to be taxed by the district registrar,
and he shall thereupon be relieved from the consequences of non-
payment of so much of the mortgage money as may not then have
become payable by reason of lapse of time.

127. In every case where land is subject to a mortgage or incum-
brance signed by an owner, the duplicate certificate of title shall be
deposited with the district registrar, who shall retain the same en
behalf of all persons interested in the land mentioned in such certifi-
cate. The district registrar shall if desired furnish to the owner of
such mortgage or incumbrance a certificate of charge; and before any
dealing with or discharge of said mortgage or incumbrance is regis-
tered, except in the case provided by section 125, said certificate of
charge shall be delivered up to the district registrar to be cancelled:
provided however that the district registrar may dispense with such
production upon satisfactory evidence being produced of the loss or
destruction of any such certificate.

Transmissions.

128. Wherever any land, mortgage or incumbrance under the new
system becomes the subject of a transmission, the person claiming to
be entitled to such transmission shall, before the registration of any
dealing therewith by him, make application in writing to the district
registrar to be registered as owner thereof, and the district registrar
may pursuant to such application transmit such land, mortgage or
incumbrance to such person; and if he become registered as owner
thereof, as executor or administrator of a deceased person, he shall
thereupon in case of mortgage or incumbrance be invested with all the
rights and powers which the deceased owner was possessed of, and the
title of the executor or administrator to such land, mortgage or in-
cumbrance shall relate back, and take effect as from the date of the
death of the deceased owner.

129. Upon any assignment being made by the owner of any land,
mortgage or incumbrance for the benefit of his creditors, the assignee
or trustee of such owner may register such assignment, and may at
any time thereafter make an application to the district registrar to
be registered as owner of any such land, mortgage or incumbrance, and
the district registrar may pursuant to such application transmit any
such land, mortgage or incumbrance to such assignee or trustee, who

MAMTOBA.

595

shall thereupon become the owner thereof, and shall be invested with
all the rights and powers which the assignor was possessed of, and
his title shall relate back and take effect as from the date of the
assignment; but the district registrar shall not, in issuing a certificate
of title to such assignee or in any entries he may make regarding any
such transmission, refer to the fact that the new owner is such
assignee or trustee, or that he holds any such land, mortgage or
incumbrance for any other than his own absolute use. and for the pur-
pose of any registered dealing therewith he shall be deemed to be the
absolute owner thereof.

Jurisdiction of the Court.

[130-134: M. 1902, ss. 121-125, Can. Torr. Syst. 445. 446; the
repealed s. 126 (Can. Torr. Syst. 446) is omitted from the present Act.]

Caveats after application to bring land under new system.

135. Any person claiming any estate or interest in land described
in an application to bring the same under the new system may, at any
time before the issue of a certificate of title therefor, file or cause to
be filed on his behalf with the district registrar a caveat, in the form in
schedule G to this Act. forbidding the bringing of such land under the
new system.

136. The district registrar, after the receipt of such caveat, shall
not bring the land under the new system until such caveat shall have
been disposed of.

137. After the expiration of one month from the filing 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
filed with the district registrar evidence that he has taken proceedings
in court to establish his title to the land, or his right as set out in such
caveat.

Caveats after land is brought under new system.

138. Any person claiming an estate or interest in land, mortgage
or incumbrance under the new system may file or cause to be filed on
his behalf with the district registrar a caveat, in the form in schedule
H to this Act, forbidding the registration of any person as transferee
or owner of, or of any instrument affecting such estate or interest, or
unless such instrument be expressed to be subject to the claim of the
caveator.

139. Except in the case of a caveat lodged by the district regis-
trar, every caveat lodged against any land, mortgage or incumbrance
under the new system shall be deemed to have lapsed upon the expira-
tion of fourteen days after notice given to the caveator to take pro-
ceedings in court on his caveat, unless before the expiration of the
said period of fourteen days the caveator 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 suf-
ficient, to indemnify every person against any damage that may be sus-
tained 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 costs of the caveator in such

596 APPENDIX OF STATUTES.

proceedings as may be taken under such caveat; but then and in such
case such court or judge may by order direct the district registrar to
delay registering any dealing with the land, mortgage or incumbrance
for a further period to be specified in such order, or may direct the
caveator to proceed upon his caveat, or may make such other order as
may be just.

[140: B. C. 1911, s. 65, ante p. 564. M. 1902, s. 132.]

Caveats generally.

141. (1) Every caveat filed with the district registrar shall state
the name and addition of the person by whom or on whose behalf the
same is filed, and except in the case of a caveat filed by the district
registrar shall be signed by the caveator, his attorney or agent, and
shall state some address or place within the province of Manitoba at
which notices and proceedings relating to such caveat or the subject-
matter thereof may be served, and the nature and particulars of the
title, estate, interest or lien under which the claim is made, and shall
be supported by an affidavit or statutory declaration stating that 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 land, mortgage or
incumbrance intended to be affected by the same, and that the caveat
is not filed for the purpose of delaying or embarrassing the applicant
or owner or any person claiming through him, which affidavit or
declaration may be in the form in schedule K hereto.

(2) The district registrar shall- not file any caveat which does not
fully meet all the requirements of this section.

[142, 143: Fi. 1876, s. 93 (8, 11), Aust. Torr. Syst. 686, adding
" and damages " after " costs." M. 1902, ss. 134, 135.]

144. Every caveat, except a caveat filed by the district registrar,
shall be deemed to have lapsed after the expiration of the time limited
by the preceding sections of this Act as to caveats, so far as applicable
respectively, unless the person by whom or on whose behalf the same
was lodged shall within that time have filed with the district registrar
evidence to his satisfaction of proceedings having been taken under
his caveat as prescribed by this Act.

145. Notwithstanding anything in this Act contained, a caveator
may take proceedings under his caveat at any time after the expira-
tion of the time limited by the preceding sections for so doing, pro-
vided he shall do so and furnish evidence thereof to the district reg-
istrar before he shall have disposed of the caveat so lapsed.

146. In the case of any caveat filed, except a caveat filed by the
district registrar, the applicant or owner may at any time before the
caveator has taken proceedings thereunder apply to the court or a
judge, or a judge in chambers, on motion calling upon the caveator to
shew cause why such caveat should not be discharged; and upon the
hearing of such motion the said court or a judge may make such order
in the premises, and as to costs, as to such court or judge may seem
just.

147. In every case in which a caveat has been disposed of the
district registrar may at once proceed as if no caveat had been filed,
unless in the meantime he shall have been served with an order of the
court or of a judge staying such proceedings.

[148: B. C. 1911, s. 67A, ante p. 564.]

MANITOBA. 597

149. In the case of a caveat filed by the district registrar, the
applicant or owner may apply to the court or a judge, on notice of
motion to be served upon the person on whose behalf such caveat has
been filed, for an order that such caveat should be withdrawn or dis-
charged. . . .

150. At any time before the expiration of the time limited for
proceeding upon a caveat, upon application on behalf of the caveator
after notice to the caveatee, the court or a judge thereof, for sufficient
cause shewn 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 order
shall forthwith be filed in the land titles office.

151. The filing of a caveat by the district registrar, or by any
caveator, shall give the same effect as to priority to the instrument or
subject-matter on which said caveat is based, as the registration of
any instrument under this Act; and the district registrar may in his
discretion allow the withdrawal of such caveat at any time, and the
registration in lieu thereof of the instrument under which the person
on whose behalf the caveat was filed claims his title or interest; and
if the withdrawal of such caveat and the registration of such instru-
ment be simultaneous, the same priority shall be preserved to all
rights under the instrument as the same rights were entitled to under
the caveat.

152. A caveator may take proceedings prescribed under schedule
L hereto, or such other proceedings in court as he may desire, to estab-
lish his claim under his caveat.

153. Any person claiming any estate or interest in land, mort-
gage or incumbrance subject to or under the new system may, in lieu
of or after filing a caveat, proceed by way of statement of claim, and
may file with the district registrar a certificate of lis pendens or other
proper evidence of such proceedings.

Assurance fund.

154. Any person sustaining loss or damage through any omission,
mistake or misfeasance of the district registrar in the execution of
his duties under this Act, and any person deprived of any land, mort-
gage or incumbrance, or of any estate or interest therein, through the
bringing of the same under the new system, or by the registration of
any other person as owner of such land, mortgage or incumbrance, or
by any error, omission or misdescription in any certificate of title, and
who by the provisions of this Act is barred or in any way precluded
from bringing an action for the recovery of such land, mortgage or
incumbrance, or interest therein, may bring an action against the dis-
trict registrar of the district in which the land is situate for the
recovery of damage. If such action be for the recovery of loss or
damage arising only through any omission, mistake or misfeasance of
the district registrar in the performance of his duties under this Act,
then such district registrar shall be the sole defendant in such action;
but if such action be brought for loss or damage arising only from the
fraud or wrongful act of some person other than the district registrar,
or arising jointly through the fraud or wrongful act of such other
person and the omission, mistake or misfeasance of the district regis-

598 APPENDIX OF STATUTES.

trar, then such action shall be brought against both the district reg-
istrar and such other person. In all such actions, where there is a
defendant other than the district registrar, and damages shall have
been recovered, and the court shall find that some defendant or defend-
ants other than the district registrar is liable for the loss so sustained
or ought to pay the same, final judgment shall not be entered against
the district registrar until a judge of the court in which such action
was brought shall have made an order, declaring that such judgment
is not and cannot be satisfied in whole or in part out of the goods or
lands of such other defendant or defendants so found liable as afore-
said, and that the amount of such judgment, in whole or as to such
part as remains unsatisfied, together with costs, should be a judgment
against the district registrar defendant, and judgment may thereupon
be entered against the district registrar; and upon payment of the
amount of such judgment the provincial treasurer shall be entitled to
an assignment thereof as against any other such defendant or defend-
ants so liable as aforesaid. The expression " district registrar." where
it occurs in the 2nd, 15th, 16th. 20th and 22nd lines of this section shall
include the district registrar and any deputy, official or clerk in his
office.

155. No action shall be brought against a district registrar under
the last preceding section unless notice of such action, and of the
cause thereof shall be served upon such district registrar and the
attorney-general at least one calendar month before the commence-
ment of such action.

156. The provincial treasurer shall pay the amount of any judg-
ment recovered against a district registrar out of the assurance fund
provided for by this Act, and if there shall not be sufficient funds at
the credit of the assurance fund to satisfy such judgment, then the
amount thereof shall be satisfied out of the public funds of the province.

[157: B. C. 1911, s. 129, ante p. 574. M. 1902, s. 149.]

158. No action for recovery of damages under this Act shall lie
or be sustained against a district registrar, or against the person by
whose 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 ten years from the date of such deprivation; pro-
vided nevertheless that any person being at the time of such depriva-
tion under the disability of infancy or unsoundness of mind shall
bring such action within five years from the date on which such dis-
ability shall have ceased, or within ten years from the date of such
deprivation, whichever shall be the later date.

159. A district registrar shall not under any circumstances be
liable for compensation for any loss, damage or deprivation occasioned
by the breach by a registered owner of any trust, whether express,
implied or constructive.

[160: N. Z. 1915, s. 188 (2), ante p. 505. M. 1902, s. 152.]
161. It shall in all cases be a bar to the bringing of any action
against a district registrar that the plaintiff in such action, or the
person through or under whom he claims, was served under the pro-
visions of this Act with notice, or not being served with notice had
knowledge, that the district registrar was about to bring the land in

M.IXITOBA. :,!)<)

respect of which the action is brought under the Act, or was about to
commit the act through which the plaintiff claims to have been
damnified.

162. Upon the first bringing of land under the new system there
shall be paid one-tenth of one per cent, in case of an original grantee
where no transaction or instrument affecting the land has been reg-
istered except mortgages or leases, but in other cases one-quarter
of one per cent, of the value thereof.

General provisions.

[165: V. 1915, s. 176, ante. p. 439. M. 1902, s. 157.J
166. Any person may under power of attorney authorize any
other person to act for him in respect of the transfer or other dealing
with any land, mortgage or incumbrance. No power of attorney shall
be deemed revoked, by act of the party or by death, until a revocation
thereof shall have been registered with, or notice of death given or
become known to, the district registrar with whom the power of attor-
ney or any certified copy thereof is registered.

[167: V. 1915, s. 270, ante p. 460.. M. 1902, s. 159.]

170. Proceedings under this Act shall not abate or be suspended
by death, or transmission, or change of interest; but in any such event
the district registrar may, upon the application of any person inter-
ested make such order for carrying on. discontinuing or suspending
the proceedings as under the circumstances may be just, and may for
that purpose issue a certificate of title to a deceased person.

171. If any person die after the execution of any instrument
affecting land, and before registration thereof, the registration of such
instrument may nevertheless be proceeded with in accordance with
this Act, and shall be valid notwithstanding such death.

Schedules.

Schedule L (Section 152).

Rules and regulations for procedure in the matter of caveats.

[A close adaptation of S. A. 1886, sch. 21. Aust. Torr. Syst. 414.
415. M. 1902, sch. L.]

(JOO APPENDIX OE STATUTES.

SASKATCHEWAN.

Land Titles Act 1917

(1917 (Sess. 2), c. 18).

Note. — This Act is a revising or consolidating statute, replacing
the 1909 Act and its amendments, and is itself amended by an Act of
1919. Except as regards the purely procedural enactments, most of the
repealed sections have been re-drafted and re-arranged, a few have not
been reproduced at all, and in many instances amendments have been
made. In view of these features, and of the recent date of its coming
into operation, nearly the whole of the Act has been printed (incor-
porating the 1919 amendments), and only those sections in other stat-
utes have been referred to which are almost verbally identical with
the omitted sections. For the procedural sections that have undergone
little or no alteration, reference is made to the repealed statute and its
amendments as printed in Can. Torr. Syst. 465 et seq.

An Act respecting Land and the Title thereto.

{Assented to December 15th, 1917.]

Interpretation.

2, In this Act, unless the context otherwise requires, the expres-
sion :

1. "Land" or "lands" means lands [M. 1913, s. 2 (1), ante

p. 579.J

2. " Owner " means a person or body corporate entitled to a

freehold or other estate or interest in land, at law or in
equity, in possession, in futurity or expectancy;

3. " Transfer " means the instrument by which one person

conveys to another an estate or interest in land under
this Act;

4. " Lease " includes a sub-lease, and " lessee " has a cor-

responding meaning;
• 5. " Mortgage " means a charge on land created for securing
a debt or loan, or an hypothecation of such charge;

6. "Mortgagee" means the owner of a mortgage; and "mort-

gagor " means the owner or transferee of land, or of an
estate or interest in land, mortgaged;

7. " Incumbrance " means a charge on land created or effected

for any purpose whatever, inclusive of mortgages,
mechanics' liens and executions against lands;

8. " Incumbrancer " means the owner of land, or of an estate

or interest in land, subject to an incumbrance; and
" incumbrancee " means the owner of an incumbrance;

9. " Lunatic " means a person found by a competent tribunal

to be a lunatic;
10. " Instrument " means a grant, certificate of title, convey-
ance, assurance, deed, map, plan, will, probate or exempli-

SASKATCHEWAN. 001

fication thereof, letters of administration or an exemplifi-
cation thereof, mortgage or incumbrance, or any other
document in writing relating to or affecting the transfer
of or other dealing with land or evidencing title thereto;

11. "Registration" means:

(a) bringing lands under the provisions of this Act;
(6) entering upon the certificate of title a memorandum,
authorized by this Act, of any document;

12. "Filing" means entering an instrument in the day book;

13. " Certificate of title ' means the certificate (form A)

granted by the registrar, and entered and kept in the
register;

14. " Duplicate " or " duplicate certificate " means the dupli-

cate of the certificate of title in the register, delivered or
issued to the person entitled thereto;

15. " Registrar " means a registrar of land titles, or a deputy

registrar, or the master of titles, or deputy master when
acting as registrar;

16. " Court " means Court of his Majesty's King's Bench for

.Saskatchewan ;

17. " Judge " means a judge of the said court, or the master in

chambers, or local master in chambers;

18. " Transmission " means the passing of the title to land in

any manner other than by transfer from the registered
owner ;

19. " Grant " means a grant of Crown land, whether in fee or

for years, and whether direct from his Majesty or pur-
suant to the provisions of a statute;

20. " Endorsement " means anything written by the registrar

upon an instrument or upon a paper attached thereto, and
"endorsed" means so written;

21. " Possession," when spoken of persons claiming title to

land, includes the receipt of the rents and profits thereof.

PART I. Organization of System.
Registration districts.

3. For the purpose of this Act there shall be in Saskatchewan ten
land registration districts, with boundaries as set forth in the first
schedule hereto.

4. The Lieutenant Governor in Council may from time to time by
proclamation, as the settlement of the country and the exigencies of
the public service require, constitute any portion of Saskatchewan a
land registration district, and declare by what name the same shall be
known and designated, and may also change the boundaries of exist-
ing districts.

5. (1) In each registration district, at such place as the Lieu-
tenant Governor in Council determines, there shall be an office called
the " land titles office."

(2) The Lieutenant Governor in Council may provide in each
registration district at the public expense, and may thereafter maintain
in a proper state of repair, the necessary building to serve as a land
titles office.

()02 APPENDIX OF STATUTES.

6. The Lieutenant Governor in Council may close, in whole or in
part, any registration district, or add to one district territory taken
from another, and may direct that the books, records, and instruments
in the possession of the registrar of the closed district, or affecting
land in the part transferred, as the case may be, shall be deposited
with the registrar of the district to which the land to which they
relate has been added, at such times and in such manner as may be
expedient.

7. Until the actual establishment of an office in a new registration
district, all registrations made in the offices of the district or districts
from which the territory comprising such new district was set apart
shall be and are hereby declared always to have been as valid as if
made in such new district when fully established.

Officials.

8. The Lieutenant Governor in Council may from time to time
appoint a master of titles who shall inspect the books and records of
the several land titles offices, and perform such other duties as may
be assigned to him by this Act or by the attorney general; and the said
master may be required to perform any duty which a registrar is by
this Act empowered to perform.

9. (1) The Lieutenant Governor in Council may also appoint a
deputy master of titles, to assist the said master under instructions
from the latter.

(2) Such deputy may. in the event of the illness or absence from
office of the master of titles, perform all the duties of such master.

(3) In case of the death, resignation, or removal from office of
the master of titles, the deputy may perform all his duties until
another master of titles is appointed.

10. No person shall be appointed master or deputy master of
titles, unless he is when appointed a barrister and solicitor of at least
three years' standing of the province of Saskatchewan.

11. (1) The Lieutenant Governor in Council may from time to
time appoint a chief surveyor of land titles offices, with such assist-
ants as the business of the offices may require.

(2) No person shall be appointed chief surveyor, unless he is a
Saskatchewan land surveyor of at least three years' standing.

(3) The chief surveyor shall perform such duties in connection
with plans and surveys and descriptions of land as may be prescribed
by this Act, or any regulation made thereunder, or as he may be
required to perform by the master of titles.

12. (1) The business of each land titles office shall be conducted
by an officer called the registrar, appointed by the Lieutenant Governor
in Council, with such other officials and clerks as are necessary, and
as the Lieutenant Governor in Council from time to time appoints.

(2) No person shall be appointed a registrar, unless he is a bar-
rister of the province of Saskatchewan, or unless he has been employed
as a deputy registrar in a land titles office in Saskatchewan for a period
of at least three years.

13. (1) Whenever occasion requires, the Lieutenant Governor in
Council may from time to time appoint one or more deputy registrars,
to assist a registrar under instructions from the latter.

SASKATCHEWAX. ,;,);;

(2) The deputy registrar may, in the event of the illness or
absence from office of the registrar, perform all the duties required
by this Act to be done by the registrar.

(3) In case of the death, resignation, or removal from office of
the registrar, the deputy registrar shall do and perfom all the duties
of a registrar under this Act until another registrar is appointed.

14. No person shall be appointed a deputy registrar, unless he is
a barrister and solicitor of the province of Saskatchewan, or unless he
has been employed for a period of at least three years in a land titles
office in Saskatchewan.

15. The master of titles, the deputy master of titles, the registrars,
deputy registrars and other necessary officers shall be attached to the
department of the attorney general and be under his control; and their
salaries and such incidental expenses of carrying out the provisions of
this Act as are sanctioned by this Act, or by the Lieutenant Governor
in Council, shall be paid out of moneys provided by the Legislature
of the province, and they shall hold office during pleasure.

16. Neither the master of titles, the deputy master of titles, nor
any registrar, deputy registrar, or clerk in a land titles office shall:

(a) directly or indirectly act as the agent of any person
investing money and taking securities on land, within
Saskatchewan;

(6) advise for any fee or reward, or otherwise than in an
official capacity, upon titles to land;

(d) carry on or transact within the land titles office any busi-
ness or occupation whatever other than his duties as
such master, deputy master, registrar, deputy registrar or
clerk.

17. No master of titles, deputy master of titles, chief surveyor,
registrar or deputy registrar, or any person acting under authority of
a registrar, shall be liable to an 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 by any order or
general rule made in pursuance thereof, except as hereinafter provided.

18. The master of titles, chief surveyor and each registrar shall
have a seal of office approved by the Lieutenant Governor in Council.
The registrar shall seal all certificates of title.

19. In matters respecting the title to land the master of titles, the
deputy master of titles, or any registrar or deputy registrar within
the district to which he is appointed, may administer any oath, or take
any affirmation or declaration in lieu of an oath, from anyone entitled
by law to affirm or declare.

20. Every registrar shall, when required, furnish under seal
copies and abstracts of any instruments affecting lands which are
deposited, filed, or registered in his office, and every such certified
copy shall be received as evidence in the same manner and with the
same effect as if the original were produced.

21. Every land titles office, except in the Cannington, Moosomin.
and Yorkton land registration districts, shall be opened on all days
except Sundays and legal holidays at ten o'clock in the forenoon, and
kept open until four o'clock in the afternoon, except on Saturdays,
when it shall be closed at one o'clock in the afternoon.

604 APPENDIX OF STATUTES.

22. The land titles offices in the Cannington, Moosomin and York-
ton land registration districts shall be opened on all days except Sun-
days and legal holidays at nine o'clock in the forenoon, and kept open
until three o'clock in the afternoon, except on Saturdays, when they
shall be closed at twelve o'clock noon.

23. The registrar shall keep a book called the " receiving book "
in which he shall enter a record of all instruments received by him.

24. (1) The registrar shall stamp all instruments presented to
him for filing or registration, showing the day, hour, and minute of
receiving the same, and shall immediately enter a record of the same
in the receiving book.

(2) The said instruments shall then be examined and, if found to
be complete and in proper form and fit for filing or registration, shall
be entered in the day book as hereinafter provided as of the day, hour,
and minute shown in the receiving book. If the instruments are found
not to be complete and in proper form, or appear to be unfit for filing
or registration, the registrar shall reject and return same.

25. (1) The registrar shall keep a book to be called the " day
book," in which every instrument relating to lands, which has been
found by the registrar to be complete and in proper form, shall be
entered by a short description, with the day, hour, and minute of its
being presented.

(2) For purposes of priority between mortgagees, transferees and
others, the time so entered shall be taken as the time of registration.

26. The registrar, in entering memoranda upon the certificate
of title embodied in the register, and in endorsing memoranda upon
the duplicate, shall take the time from the day book as the time of
registration.

27. (1) The registrar shall also keep a book to be called the
" register," and shall enter therein all certificates of title, and shall
record therein the particulars of all instruments, dealings, and other
matters by this Act required to be registered or entered in the reg-
ister, and affecting the land included in such certificate of title.

(2) Each certificate of title shall constitute a separate folio of such
book.

28. The registrar shall also keep a book to be called the " general
register," in which he shall enter in alphabetical order, under the
name of the grantor, every instrument (except executions) entered in
the day book relating to lands in which the land affected thereby is
not specifically described, with the date of execution thereof, the names
of the parties thereto, and the day, hour, and minute of its receipt by
him.

29. The registrar shall also keep a book to be called the " execu-
tion register," in which he shall enter in alphabetical order, under
the name of the execution debtor, every writ of execution and renewal
thereof received and entered in the day book, with the date and amount
thereof, the parties thereto, and the day, hour, and minute of its
receipt by him, the name of the judicial district to whose sheriff the
writ is directed, and any other particulars required by this Act.

30. The attorney general shall, from time to time, provide all
such books, forms and other office requisites as are necessary for use
under the provisions of this Act.

SASKATCHEWAN. 605

PART II. REGISTRATION AND ITS EFFECT.

Applications to bring under the Act.

31. (1) The owner of an estate or interest in land, whether legal
or equitable, may by himself or his duly authorized agent or attorney
apply to have his estate or interest, or the whole title to the land,
registered under this Act.

(2) The registrar may, in his discretion, refuse to entertain such
application unless all persons interested in the land, other than the
applicant, are consenting parties thereto.

(3) If, at the time of the grant of the certificate of title, there are
no filed or registered instruments affecting the land, the certificate
may be granted upon payment of such fees as are fixed in that behalf
by tariff made from time to time by the Lieutenant Governor in
Council, but no fees shall be payable therefor under the provisions
of this Act relating to the assurance fund.

32. (1) The application therefor shall be made in writing to the
registrar of the registration district in which the land is situate (form
B), and shall be verified by affidavit of the applicant, or some one on
his behalf (form C).

(2) The application shall be accompanied by:

(a) all deeds (if any) in possession of the applicant;

(&) a certificate showing all instruments affecting the title in
the land titles office down to the time when said application
is filed, with the copies of any documents in the said office
the original whereof the applicant is unabie to produce.

(3) It shall not in any case be necessary for an applicant to pro-
duce copies of a document the original whereof is, at the time of the
application, of record in the office of the registrar to whom the appli-
cation is made.

(4) Where the title to land embraced in an application passed to
the Hudson's Bay Company before the first day of January 1887, either
by notification under the Dominion Lands Act or by letters patent
issued thereunder, and where the application is accompanied by an
affidavit of an officer of the company approved by the attorney-general
(form D), it need not be accompanied by such notification or letters
patent.

33. Upon the filing of such application:

(a) if the applicant is the original grantee from the Crown,
and no instrument affecting the title to the land is of
record in the land titles office; or

(b) if the applicant is not the original grantee, but all the
original deeds are produced, and no person other than the
applicant is in actual possession of the land, and no
caveat has been filed;

the registrar, upon being satisfied as to the title of the applicant, shall
grant a certificate of title as hereinafter provided.

34. If there is any mortgage or other incumbrance against the
land at the date of such application, the filing with the registrar of
the original mortgage, or of the instrument creating the incumbrance,
or a copy of either, having endorsed thereon or attached thereto a
discharge, signed by the mortgagee or incumbrancee. accompanied by

GOG APPENDIX OF STATUTES.

the affidavit of an attesting witness, shall operate as a discharge of
the security created by such mortgage or incumbrance.

35. If any person other than the applicant appears, by admission
or otherwise, to be interested in the land, and the applicant desires
to have his title registered subject to the interest of such other person,
and such interest arises by virtue of a mortgage, lease, or charge
created by any other instrument, and such instrument is at the time
of the application of record in the office of the registrar to whom
application is made, or is then produced to him, the registrar may. if
satisfied as to the extent and nature of interest or of the title of the
applicant, register the title, and grant a certificate of title, and issue a
duplicate certificate, subject to such interest.

36. Where the person who so appears to be interested is a con-
senting party to the application, and his consent is in writing signed
by him in presence of a witness, and attested in the manner required
by this Act for the attestation of instruments not under seal, the reg-
istrar may, if satisfied as to the title of the applicant, grant a certifi-
cate of title subject to the terms of the consent.

37. In all cases other than those provided for in the four last
preceding sections, the registrar shall forthwith, on giving the appli-
cant a certificate of the filing of his application, transmit the applica-
tion with all evidence supplied to the master of titles to be dealt with
as hereinafter mentioned.

38. The master of titles shall examine without delay all titles so
submitted, and for such purpose shall when necessary 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 land; and he shall have and exercise all the powers of a judge
for compelling the attendance of witnesses and the production of
documents.

39. (1) If the master of titles finds that some person other than
the applicant has, or appears to have, some right or claim to or against
the land in question, he may of his own motion issue a notice, and
cause such person to be served with a copy thereof, to the effect that a
certificate of title will issue pursuant to the application, unless the
person appearing to have such right or claim shall, within the time
limited by the notice, file and serve an adverse claim in accordance
with the next following section.

(2) The master of titles shall by such notice limit a reasonable
time for such filing and service, and he may extend the same from
time to time as he may deem expedient.

40. Any person having an adverse claim, or a claim not recog-
nized in the application for registration, may, at any time before the
master of titles has approved of the applicant's title, file with the
master of titles a short statement of his claim verified by affidavit, and
in such case he shall serve a copy thereof on the applicant, his solici-
tor or agent.

41. If an adverse claim is filed, the master of titles shall examine
into and adjudicate thereon, and no certificate of title shall be granted
until such adverse claim has been disposed of.

42. The master of titles may in any case direct that notice of
the application be published in some newspaper or newspapers, in
such form and for such period as he thinks expedient, and no order for

SASKATCHEWAN. 607

registration shall be granted by him until after the expiration of at
least four weeks from the first publication of the notice, if he has
directed the same to be published.

43. The master of titles, if satisfied with the applicant's title, shall
make an order directing the registrar after the expiration of four
weeks from the date thereof, unless in the meantime the order is
appealed from, to register the same.

44. After the registration of a title, the registrar shall make out,
sign, officially seal, and deliver to the owner or his duly authorized
agent, a duplicate of the certificate of title in the register, on which
shall be entered all memoranda endorsed on or attached to the certifi-
cate of title.

45. (1) An applicant may, upon such terms as to the registrar
or master of titles seem proper, withdraw his application as to the
whole or any part of the land comprised therein, at any time prior to
the issue of the certificate of title.

(2) In case of such withdrawal, if a caveator has been put to
expense without sufficient cause by reason of the application, the
caveator shall receive such compensation as the master of titles may
allow.

Registration.

46. (1) When land in Saskatchewan is granted by the Crown, the
letters patent therefor, when received by the registrar of the registra-
tion district in which the land so granted is situated, shall be retained
by him. and a certificate of title and duplicate thereof as provided by
this Act, with any necessary qualification, shall be granted to the
patentee upon payment of such fees and charges as may be prescribed
by the Lieutenant Governor in Council.

(2) No fees or charges shall be payable upon the issue of a dupli-
cate certificate of title to a person who has obtained a patent under a
homestead entry, in accordance with the provisions of an Act of the
Parliament of Canada known as the Dominion Lands Act, unless at
the time such duplicate certificate of title is issued there are instru-
ments registered or filed which incumber or affect the title, in which
case such duplicate certificate shall be issued upon the payment of
such fees as are fixed, or may from time to time be fixed, by the
Lieutenant Governor in Council.

47. The notification to the Hudson's Bay Company by the minister
of the interior, under the provisions 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 a registrar as equivalent
to, and be dealt with by him in all respects in the same manner as if
the said notification were, letters patent to and in favour of the said
company, granting to it in fee simple the sections or portions of sec-
tions to which it is entitled in such townships or parts of townships,
under the provisions of the Dominion Lands Act.

48. A notification to the registrar from the minister of the inter-
ior that land described therein has been granted to the Canadian
Pacific Railway Company, or to any other railway company entitled
to Dominion lands under the authority of an Act of Parliament, shall
be accepted by the registrar and dealt with by him in all respects as if
the same were letters patent in favour of such company.

608 APPENDIX OF STATUTES.

49. (1) Every grant shall be deemed to be registered under the
provisions of this Act, when it has been marked by the registrar with
the folio and volume on and in which it is embodied in the register.

(2) Every other instrument shall be deemed to be registered,
when a memorandum of it has been entered in the register upon the
folio constituting the existing certificate of title.

50. Unless required so to do by order of the court or a judge or
the master of titles, and except as provided in the following section,
the registrar shall not enter an instrument in the day book until the
duplicate certificate of title for the lands affected is produced to him,
so as to enable him to enter the proper memorandum on such dupli-
cate.

51. A duplicate certificate of title for the lands affected need not
be produced in the case of:

(a) executions against lands, caveats, mechanics' liens, assign-
ments for the general benefit of creditors under the
Assignments Act. transfers by a sheriff or by order of a
court or a judge;

(&) applications for title by tax sale purchasers or their
assigns, or transfers on sales of lands for taxes, maps or
plans which do not require to be registered, or certifi-
cates or orders of a court or a judge or the master of
titles, or a certificate of lis pendens under the seal of
the court and the hand of the clerk or the registrar or
local registrar thereof;

(c) a mortgage or other incumbrance created by any person
rightfully in possession of land prior to the issue of the
grant from the Crown, or prior to the issue of transfer
from the Hudson's Bay Company, or from any company
entitled to a grant of such lands from the Crown, or to
which letters patent from the Crown for such mortgaged
or incumbered lands have already issued but for which
no certificate of title has been issued, if there is produced
to and left with the registrar with the mortgage or
incumbrance an affidavit made by the mortgagor or
incumbrancer (form E) ; and also in the case of lands
mortgaged prior to the issue of transfer from the Hud-
son's Bay Company, or other company as aforesaid, a cer-
tificate from the land commissioner or other proper officer
of such company that the purchase price of such mort-
gaged lands has been paid, and that the applicant is
entitled to a transfer in fee simple therefor from such
company;

(d) a transfer under power of sale in a mortgage given under
section 110 of this Act by a mortgagee, or an order for
foreclosure given under section 114 by the registrar.

52. (1) Upon every transfer of ownership, the certificate of title
of the transferor, and the duplicate thereof, shall be cancelled in
respect of the land transferred, and the certificate of title of the trans-
feree shall thereupon be entered upon a new folio in the register.

(2) The registrar shall note upon the folio of the title of the
transferor the number of the folio of the transferee's title, and upon
that of the transferee the number of the folio of the transferor, so

SASKATCHEWAN. 600

that reference can be readily made from one to the other as occasion
requires.

(3) There shall not be included in a certificate of title lands in
more than one township.

(4) In no case shall a certificate of title issue for more than one
hundred lots, or for lots in more than one subdivision, or for unsub-
divided lands which are not contiguous, or which contain more than
640 acres: provided that lands shall be deemed contiguous that are
part of the same section, or are separated only by a highway, railway,
right of way or private road.

53. The registrar shall retain in his office every registered instru-
ment.

54. (1) Every memorandum entered in the register shall state
the nature of the instrument to which it relates, the day, hour, and
minute of its registration, and the names of the parties thereto, shall
refer by number or symbol to such instrument, and shall be signed by
the registrar.

(2) When a memorandum has been entered in the register, the
registrar shall make a like memorandum upon the duplicate, when the
same is presented to him for the purpose, and shall sign and seal such
memorandum.

(3) Such memorandum shall be received in all courts of law as
conclusive evidence of its contents, and that the instrument of which
it is a memorandum has been duly registered under the provisions of
this Act.

55. Where an instrument in accordance with the forms in use, or
sufficient to pass an estate or interest in land, under a system of
land registration other than that created by this Act, deals with land
outside Saskatchewan and also with land in Saskatchewan, the master
of titles may in his discretion direct the registrar to register it under
this Act against land in such instrument specifically described, and
when so registered, it shall have the same effect as to the operative
parts thereof as an instrument of a like nature under this Act, and shall
by implication be held to contain all such covenants as are implied in
such an instrument, and if it is a mortgage the mortgagee may. for the
purpose of foreclosure or sale under the mortgage, elect to proceed
under the provisions of this Act.

Attestation of instruments.

56. Every instrument executed within the limits of Saskatche-
wan, except instruments under the seal of a corporation, caveats,
mechanics' liens, orders of a court or judge, the master of titles, or
registrar, executions or certificates of judicial proceedings attested as
such, requiring to be registered or filed under this Act, shall be wit-
nessed by one person, who shall sign his name to the instrument as a
witness, and who shall appear before the master of titles, or the reg-
istrar or deputy registrar of the registration district in which the
land is situated, or before a judge, notary public, commissioner for
oaths, or justice of the peace in and for Saskatchewan, and make an
affidavit (form F).

R.T.L.— 39

610 APPENDIX OF STATUTES.

57. (1) Every instrument executed without the limits of Sas-
katchewan, except grants from the Crown, orders in council, instru-
ments under the seal of a corporation, caveats or mechanics' liens,
required to be registered or filed under the provisions of this Act, shall
be witnessed by one person, who shall sign his name to the instru-
ment as a witness, and who shall appear and make an affidavit (form
F) before one of the following persons:

(a) If made in any province in Canada, before a judge of a
court of record, a commissioner authorized to take affi-
davits in such province for use in any court of record in
Saskatchewan, or before a notary public under his official
seal; or

(b) if made in Great Britain or Ireland, before a judge of
the Supreme Court of Judicature in England or Ireland,
or of the Court of Session or of the Judiciary Court in
Scotland, or a judge of any of the county courts within
his county, or the mayor of a city or incorporated town
under the common seal of such city or town, or before a
commissioner in Great Britain or Ireland authorized to
take affidavits therein for use in any court of record in
Saskatchewan, or a notary public under his official seal;
or

(c) if made in any British colony or possession out of Canada,
before a judge of a court of record, the mayor of a city
or incorporated town under the common seal of such city
or town, or a notary public under his official seal; or

(d) if made in any foreign country, before the mayor of any
city or incorporated town under the common seal of any
such city or town, or before the British consul, vice
consul or consular agent residing therein, or before a
judge of a court of record, or a notary public under his
official seal.

(2) Notwithstanding anything herein contained, the registrar
may register any instrument purporting to be executed by a person in
the military or naval service of Great Britain or any of her allies in
time of war, if the affidavit of attestation purports to be sworn before
a commissioned officer. In such cases the officer before whom the
affidavit is sworn shall state his name, rank and the company, regi-
ment, battalion or corps to which he is attached.

Effect of registration.

58. (1) After a certificate of title has been granted, no instru-
ment shall until registered pass any estate or interest in the land
therein comprised, except a leasehold interest not exceeding three
years where there is actual occupation of the land under the same, or
render such land liable as security for the payment of money, except
as against the person making the same.

(2) Every instrument shall become operative according to the
tenor and intent thereof when registered, and shall thereupon create,
transfer, surrender, charge or discharge, as the case may be, the land,
estate or interest therein mentioned.

59. The owner of land for which a certificate of title has been
granted shall hold the same subject, in addition to the incidents

8 ASK A TCHEWAN. g X 1

implied by virtue of this Act, to such incumbrances, liens, estates or
interests as are notified on the folio of the register which constitutes
the certificate of title, absolutely free from all other incumbrances,
liens, estates or interests whatsoever, except in case of fraud wherein
he has participated or colluded, and except the estate or interest of an
owner claiming the same land under a prior certificate of title, as
mentioned in section 174.

60. The land mentioned in any certificate of title granted under
this Act shall, by implication and without any special mention
therein, unless the contrary is expressly declared, be subject to:

(a) any subsisting reservations or exceptions contained in the
original grant of the land from the Crown;

(&) all unpaid taxes, and the rights of purchasers at tax
sales;

(c) any public highway or right of way, or other public ease-
ment howsoever created upon, over, or in respect of the
land;

(d) any subsisting lease or agreement for a lease for a period
not exceeding three years, where there is actual occupa-
tion of the land under the same;

(e) any decrees, orders, or executions against or affecting the
interest !of the owner in the land, which have been filed
and maintained in force against the owner;

(/) any right of expropriation which may by statute or

ordinance be vested in any person, body corporate or his

Majesty;
(g) any right of way or other easement, granted or acquired

under the provisions of the Irrigation Act;
(h) the provisions of section 61;
(i) liens in favour of his Majesty for advances of seed grain,

fodder, or other goods by way of relief.

61. (1) Every certificate of title shall be void as against the title
of any person adversely in actual occupation of, and rightly entitled
to, the land at the time when such land was brought under this Act.

(2) After land has been brought under this Act. no title thereto
adverse to or in derogation of the title of the registered owner shall
be acquired by possession: provided however that nothing contained
in this section shall operate to affect prejudicially any right or interest
in land acquired prior to the nineteenth day of December 1913.

62. (1) No memorandum or entry shall be made upon a certifi-
cate of title, or upon the duplicate thereof, of any notice of trusts,
whether express, implied or constructive.

(2) The registrar shall treat any instrument containing any such
notice as if there was no trust, and the trustees therein named shall
be deemed to be the absolute and beneficial owners of the land for the
purposes of this Act.

63. Instruments registered in respect of or affecting the same land
shall be entitled to priority, the one over the other, according to the
time of registration, and not according to the date of execution.

64. (1) In every instrument transferring, mortgaging, or incum-
bering land for which a certificate of title has been granted there shall
be implied the following covenant by the transferor, mortgagor or
incumbrancer, that is to say: That he will do such acts and execute

(512 APPENDIX OF STATUTES.

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
implied therein against such person.

(2) Save as in the Assignments Act or in any other Act provided,
in every instrument transferring land for which a certificate of title
has been granted subject to mortgage or incumbrance, there shall be
implied a covenant by the transferee with the transferor that the
transferee will pay the principal money, interest, annuity or rent-
charge secured by the mortgage or incumbrance, at the rate and at
the time specified in the instrument creating the same, and will indem-
nify and keep .harmless the transferor from and against the principal
sum or other moneys secured by such instrument, and from and
against the liability in respect of any of the covenants therein con-
tained, or under this Act implied, on the part of the transferor.

65. (1) Every covenant and power, declared to be implied in any
instrument by virtue of this Act, may be negatived or modified by
express declaration in the instrument.

(2) Every such implied covenant shall have the same force and
effect, and be enforced in the same manner, as if it had been set out at
length in the transfer or other instrument.

(3) When a transfer or other instrument in accordance with
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 con-
strued to be several, and not to bind the parties jointly.

PART III. Dealing with Certificate of Title.

Correction of certificate.

[66: B. C. 1911, s. 170A, ante p. 577, omitting reference to "thirty
days' notice."]

Cancellation of certificate of title.

67. (1) Upon the application of an owner of several parcels of
land held under separate certificates of title, or under one certificate
of title, and the delivery up of the duplicate or duplicates thereof, the
registrar may cancel the existing certificate or certificates of title
granted, as also the duplicates so delivered up, and may grant to the
owner a single certificate of title for all the parcels of land, or several
certificates of title each applying to one or more of the parcels, in
accordance with the application.

(2) Upon the certificate or certificates of title cancelled shall be
entered a memorandum setting forth the occasion of the cancellation,
and referring to the certificate or certificates of title newly granted.

(3) The registrar shall issue to the applicant one or more duplicate
certificates as the case requires.

68. (1) Subject to the provisions of the next following sub-section,
the registrar, in the case of a partially cancelled certificate of title,
shall return the duplicate to the transferor, after the memorandum
partially cancelling the same has been made thereon and upon the
certificate of title in the register.

8ASKATCHEWAX. 613

(2) Whenever required by the owner of an unsold portion of
land included in a partially cancelled certificate of title, or where such
a course appears to the registrar more expedient, he may grant to
such owner a certificate of title for the portion of which he is the
owner, upon delivery up of the partially cancelled duplicate certificate
of title to be cancelled and retained.

Lost or destroyed certificate of title.

69. (1) Upon production to the registrar of satisfactory proof, by
statutory declaration of the person to whom a duplicate certificate has
been issued or some one having knowledge of the facts, of the acci-
dental loss or destruction of such duplicate, the registrar may, after
having entered in the register the facts so proven, issue a fresh dupli-
cate in lieu of the one so lost or destroyed, noting upon the same why
it is so issued.

(2) Unless the registrar is satisfied as to the loss or destruction
of the duplicate certificate so issued, and that notice of intention to
issue another duplicate certificate in lieu of such alleged lost or de-
stroyed certificate in a newspaper or otherwise is unnecessary, no such
fresh duplicate certificate shall be issued until the registrar shall for
four weeks:

(a) publish a notice of his intention (form G) to issue such
fresh certificate in the newspaper published nearest to
the land described in the register, or if more newspapers
than one are published in the same locality, then in one
of such newspapers; and
(6) post up such notices in a conspicuous place in the land
titles office.

Compelling delivery of certificate.

70, 71. If the registrar requires a duplicate certificate for the
purpose of making a memorandum thereon, or for the purpose of
wholly or partially cancelling the same, or if it appears to the satisfac-
tion of the registrar that:

(a) a duplicate certificate or other instrument has been issued

in error [V. 1915, s. 80, ante p. 414.]

72. (1) Upon the appearance of the person summoned or brought

up by virtue of a warrant as aforesaid, the judge may examine him

upon oath and, in case it appears right so to do. may order such person

to deliver up the duplicate certificate, or other instrument as aforesaid.

(2) Upon refusal or neglect by such person to deliver up the same
pursuant to the order, or to be put under oath, or to be examined, "or
to answer any question touching the matter after being sworn, the
judge may commit such person to the nearest common jail for any
period not exceeding six months, unless the duplicate certificate or
other instrument is sooner delivered up, or sufficient explanation is
made why the same cannot be done.

(3) In such case, or in case such person has absconded so that
summons cannot be served upon him as hereinbefore directed, or in
case a period of three months from the time of mailing to such person
the demand referred to in section 70 has elapsed without the duplicate
certificate or other instrument having been returned to the registrar,

614 APPENDIX OF STATUTES.

the judge may direct the registrar to cancel or correct or complete the
certificate of title, duplicate certificate, or other instrument in his
possession, or any memorandum thereon relating to the land, and to
substitute and issue if necessary a duplicate certificate or other in-
strument, or make such memorandum as the circumstances of the case
require, and the registrar shall obey such order.

Powers of judge.
[73: M. 1913, s. 58, omitting proviso, ante p. 584.]

PART IV. Instruments that may be registered.
Transfers of land.

74. When land for which a certificate of title has been granted is
iniended to be transferred, or a right of way or other easement is
intended to be created or transferred, the owner shall execute a trans-
fer (form J), which transfer may, for description of the land intended
to be dealt with, refer to the certificate of title, or give such descrip-
tion as is necessary to identify the land, and shall contain an accurate
statement of the estate, interest, or easement intended to be trans-
ferred or created.

[75: M. 1913, s. 88, ante p. 587. J

76. (1) When an easement or incorporeal right, in or over any
land for which a certificate of title has been granted, is created for the
purpose of being annexed to or used and enjoyed together with other
land for which a certificate of title has been granted, the registrar
shall make a memorandum of the instrument creating such easement
or incorporeal right upon the folios of the register which constitute
the existing certificates of title of the dominant and servient tene-
ments respectively, and upon the duplicates thereof.

[(2): M. 1913, s. 96, ante p. 588.]

77. If a transfer purports to transfer the transferor's interest in
the whole or part of the land mentioned in a certificate of title, the
transferor shall deliver up the duplicate, and the registrar shall make
a memorandum setting forth the particulars of the transfer upon both
the certificate and the duplicate, cancelling the same either wholly or
partially, according as the transfer purports to transfer the whole or
part only of the interest of the transferor in the land.

78. Upon every transfer of the land mentioned in a certificate of
title, a new certificate and duplicate thereof shall be granted by the
registrar to the transferee on application.

Plans.

79. (1) The registrar may require the owner of any land within
his registration district, desiring to transfer or otherwise deal with it
under the provisions of this Act, to have it surveyed by a Saskatche-
wan land surveyor, and to furnish him with a plan of such survey and
one copy thereof, drawn in accordance with the regulations prescribed
for land titles offices by the master of titles.

(2) The plan shall be signed by the owner, and certified by the
surveyor (form K), and the signature of the owner shall be witnessed

SASKATCHEWAN. 615

and attested in the manner herein provided for the attestation of all
instruments.

(3) If the owner neglects or refuses to comply with the require-
ments of this section, the registrar shall not proceed with the regis-
tration of the transfer or other instrument until such requirements
are complied with.

80. (1) An owner, subdividing land for which a certificate of title
has been granted into blocks or lots, shall register a plan and three
copies thereof, in accordance with the above named regulations.

(2) The registrar shall endorse on the plan a certificate showing
its number and date of registration, and shall deliver one copy to the
department of highways for Saskatchewan, and one copy to the chief
surveyor of the Saskatchewan land titles offices, retaining the plan in
the land titles office, and returning one copy to the owner.

(3) The plan shall be marked "original" by the surveyor who
made and executed it.

(4) The plan shall clearly illustrate and represent the survey as
made on the ground in accordance with the Saskatchewan Surveys
Act.

(5) Every such plan shall be certified (form K) by the surveyor
who made the survey, and signed by every owner or his agent there-
unto duly authorized by a registered power of attorney, and each
signature shall be witnessed and attested in the manner herein pro-
vided for the attestation of instruments to be registered under this Act.

(6) No plan of subdivision of mortgaged or incumbered land shall
be registered, unless approved and signed by the mortgagee or incum-
brancee, whose signature shall be witnessed and attested in the man-
ner herein provided for the attestation of instruments to be registered
under the Act.

(7) No lots shall be sold, under agreement for sale or otherwise,
according to a townsite or subdivision plan, until the plan has been
registered in the land titles office for the registration district in which
the land shown thereon is situated.

(8) Where land is surveyed and subdivided for the purpose of
being sold or conveyed in lots, by reference to a plan which has not
been already registered, the person making the survey and subdivision
shall within three months thereafter register the plan.

(9) In the case of refusal or neglect by the person making the
subdivision, for two months after demand in writing for that purpose,
to register the plan in accordance with the provisions of this Act,
when required by any person interested therein, or by the master of
titles, so to do, he shall incur a penalty of $20 for every calendar month
which thereafter elapses without the plan being registered.

(10) A person who purchases any such lot or parcel of land with-
out knowledge of the nonregistration of the plan, or of the necessity
for registration of the same, or any person claiming under him, may
at his option on acquiring such knowledge rescind the contract, and
recover back any money paid thereunder, with lawful interest and any
taxes or other expenses incurred by him in consequence of such pur-
chase, and he shall have a lien on the land for all such moneys a&.
against the vendor's interest, but the vendor shall nevertheless be
bound by the contract, deed or conveyance, if the purchaser does not
rescind the same.

016 APPENDIX OF STATUTES.

(11) The registration in the land titles office of a plan of the
subdivision of land in lots or blocks shall vest the title to all streets,
lanes, parks or other reserves for public purposes, shown on such
plan, in his Majesty in the right and to the use of his province of
Saskatchewan; and no change or alteration in the boundaries of any
street, lane, park or public reserve shall be made without the consent
of the minister of highways having first been obtained.

(12) The right and title to all mines and minerals under such
streets, lanes, parks or public reserves shall remain vested in the
owner of such mines and minerals and his assigns.

(13) The foregoing provisions of this section shall operate retro-
spectively, and shall apply to all plans of subdivisions whensoever
registered.

(14) No plan of subdivision of land within the corporate limits
of a city or town, whether it be an original subdivision of a town plot,
or a re-subdivision of lots or blocks contained in such original sub-
division, shall be registered:

(a) unless it conforms to the regulations made by the council
of such city or town with regard thereto, provided that
such regulations have been approved by the minister of
highways; or

(&) in case there are no such approved regulations, unless
the director of surveys has certified on the plan that it
complies in every respect with the regulations of the
department of highways.

(15) No plan of subdivision of land outside the corporate limits
of a city or town shall be registered, unless the director of surveys
certifies in manner similar to that mentioned in clause (b) of the
preceding sub-section.

(16) Plans shall be submitted to the chief surveyor of the land
titles office within thirty days of approval by the proper municipal
authority, and to the registrar for registration within thirty days of
approval- by the chief surveyor.

(17) On the registration of a subdivision plan, the registrar shall
cancel the existing certificate of title, and issue to the owner certifi-
cates of title to the property in blocks and lots as shown on the plan.

81. (1) Railway corporations shall file with the registrar of the
land registration district within which such lands are situated a plan,
and one copy thereof, showing the lands required for their right of
way and station grounds, or for any other railway purpose, before a
certificate of title is granted therefor; and such plan and copy shall
be in accordance with the regulations prescribed for land titles offices
by the master of titles.

(2) The plans shall clearly show that the surveys represented
thereon have been made in all respects in accordance with the Sas-
katchewan Surveys Act, and shall be certified by a Dominion land
surveyor (form L), or by a Saskatchewan land surveyor (form K),
according as the land dealt with is Dominion or patented land.

(3) When the location of the railway is through land which has
been subdivided, and of which a plan has been registered under section
80 of this Act, the plan must show distinctly lines of all allotments
taken in whole or in part for railway purposes, according to the reg-
istered plan.

SASKATCHEWAN'. 61 T

(4) The area taken from each quarter section, settlement lot or
parcel of land, as the case may be, shall be shown on the plan.

(5) Notwithstanding anything in this section, the registrar may
accept transfers of land for right of way and station grounds referring
to any plan prepared prior to the first day of January 1914. and signed
by a Dominion land surveyor, or prepared before or subsequently to
the said first day of January 1914, and signed by a Saskatchewan land
surveyor, filed in his office on or before the first day of January 1915.
pursuant to the Railway Act of Canada or the Railway Act, being
chapter 75 of the Revised Statutes of Saskatchewan 1909. if in his
opinion the lands to be transferred are clearly and sufficiently defined,
and the centre line properly tied into the land boundaries of the sec-
tion or other parcel of land, and all information and measurements
necessary to locate the said lands upon the ground are shown upon
the said plan.

(6) The provisions of the foregoing sub-sections of this section
shall apply, mutatis mutandis, to any person constructing an irrigation
ditch or pipeline, water, gas or oil pipeline, or any other transmis-
sion line, pipe or conduit, for which a right of way is required.

82. (1) Any map or plan, other than a plan of subdivision into
lots or blocks, attested by the signature of the superintendent-general
of Indian affairs or his deputy, and certified by a Dominion land sur-
veyor to be a true copy of a plan or survey lodged or filed in the
department of Indian affairs, of lands described as " Indian lands " in
the Indian Act shall be dealt with and recognized in accordance with
the provisions of this Act by the registrar of the district in which the
said lands are situated, when the said map or plan has been lodged or
filed with him, notwithstanding that the Indian Act does not expressly
authorize the said map or plan to be so lodged or filed.

(2) Any such map or plan of subdivision into lots or blocks shall
comply with the provisions of section 80.

83. Any plan which has been prepared in accordance with the
provisions of an Act of the parliament of Canada, or of an ordinance
of the North-West Territories, or of an Act of the legislature of Sas-
katchewan, and which has been lodged or filed with the registrar under
or in accordance with the provisions of any of said Acts or ordinances,
shall be dealt with and recognized by him, in so far as it is capable of
being dealt with and recognized, as if it had been prepared and filed
or registered under and in accordance with the provisions of this Act.

84. Except roadway plans, the registrar shall not accept a plan
under this Act for registration, or any other purpose of record, any
part of which is stamped, printed, typewritten, stencilled, lithographed
or engraved.

85. (1) Every plan, except roadway plans, filed or registered
under this Act shall bear the approval of the chief surveyor of the
land titles offices, and shall be presented for filing or registration
within thirty days of the date of such approval.

(2) Upon filing or registering any plan, the registrar shall for-
ward one copy thereof to the chief surveyor aforesaid.

86. (1) Where in any plan heretofore or hereafter filed or regis-
tered there is an omission, clerical error, or other defect, the master of

618 APPENDIX OF STATUTES.

titles may order the same to be corrected in such manner as to him
may seem best, and the registrar shall thereupon:

(a) file the master's order, and enter upon the plan filed or
registered in his office, and all copies thereof produced by
him, a memorandum of such order;
(&) substitute the corrected plan (if any) for the plan pre-
viously filed or registered;
(c) perform such other acts or duties as may be required by
such order.
(2) Uposn such filing the corrected plan shall be deemed to be
substituted for the original, and thereafter the original shall for all
purposes be deemed to have been so amended or corrected from the
time of its registration, and the description in any instrument of land
therein included shall be construed as if it referred to the corrected
plan, but such amendment or correction by the master of titles shall
not affect the rights of any person existing when the amendment or
correction is made.

87. Upon the application of the person who registered a plan, or
of anyone deriving title through him to land included therein, and
upon hearing all parties interested, the master of titles may order
the cancellation in whole or in part, amendment, or alteration of the
plan, upon such terms and conditions as to costs and otherwise as
may seem meet; and he may order the amendment or cancellation of
certificates of titles issued according to the original plan, and the
issue of new certificates according to the new or amended plan.

Plans of roads.

88. (1) Whenever the plan of a surveyed road or trail is for-
warded to the registrar of the proper land titles office, pursuant to the
provisions of the Highways Act, the registrar shall proceed as follows:

(a) he shall call in the duplicate certificates of title for all
patented lands affected thereby, in the manner set forth
in section 70 of this Act;

(b) upon receipt of same or, if the registered owner of any
such lands refuses or neglects to return the said duplicate
within thirty days after the demand therefor has been
mailed to him by the registrar, then at the expiration of
such thirty days, the registrar shall file and register the
plan, and shall cancel the area required for the road or
trail as shown thereon from the certificates of title, and
from the duplicates that may have been or may thereafter
be returned to him;

(c) he shall grant a certificate of title for the road or trail,
free from all incumbrances, liens, estates or interests
whatsoever, to his Majesty in the right of the province,
and shall issue to his Majesty a duplicate of such certifi-
cate, and forward the same to the minister of highways.

(2) The right and title to all mines and minerals which may
be found to exist under such land shall continue to be vested in the
original owners of such mines and minerals and their assigns.

(3) The registration of the plan of survey of land required for a
ditch, reservoir or other water right, when the applicant for such

8 A SKA TCU E WA N. 61!)

right is the minister of highways, shall vest the lands shown on such
plan in his Majesty in the right of Saskatchewan, and such plan shall
be dealt with in all respects by the registrar in the same manner as is
provided in the first sub-section of this section, with respect to the
plan of a surveyed road or trail.

89. If a certificate of title has not been granted for any land
affected by a road or trail as shown upon the plan forwarded to the
registrar, the registrar shall issue to the Crown in the right of the
province a certificate of title for the land affected by the road or trail,
according to such plan.

90. (1) A notification to the registrar from the minister of high-
ways that land described in such notification, which is a part of a road
allowance or surveyed road or trail vested in the Crown in the right
of the province, has been closed, shall operate as a transfer from the
Crown to the person named as transferee in such notification, or in a
transfer attached thereto, and shall be accepted by the registrar, and
be dealt with by him in all respects, as if such notification were letters
patent in favour of such person.

(2) The notification shall state the nature of the grant, and
shall specify any mines, minerals, easements or rights which are
excepted therefrom.

(3) A notification to the registrar from the minister of highways
that the land shown on any plan or road, drain or water right, for
which a certificate of title in the name of his Majesty in the right of
the province has not been issued, has been abandoned, shall operate
as a transfer from the Crown to the registered owner of the land
through which the road, drain, or water right to be abandoned passes,
and shall be accepted as such by the registrar, and any memorandum
which may have been made upon the original certificate of title to the
land upon the filing of the plan shall be cancelled.

91. A copy of any plan made under the provisions of the North-
West Territories Act, duly certified by the surveyor-general of the
department of the interior, and by the minister of highways for Sas-
katchewan, shall be accepted and dealt with by the registrar under
the provisions of sections 88 to 90 inclusive.

Leases.

92. (1) When land for which a certificate of title has been
granted is intended to be leased or demised for a life or lives, or for a
term of more than three years, the owner shall execute a lease (form
M), and such instrument shall for description of the land refer to
the certificate of title, or give such other description as will identify it.

(2) A lessee for a life or lives, or for a term, in land for which
the grant from the Crown has been registered, may apply to have his
title registered.

(3) Upon registration of the leasehold title, the registrar shall
retain possession of the duplicate certificate of title on behalf of all
persons interested in the land covered thereby, and shall if desired
furnish, either to the lessor or lessee or to both, a certificate of the
registration of the lease (form N).

(4) A right for lessee to purchase the land therein described may
be stipulated in the instrument.

620 APPENDIX OF STATUTES.

(5) No lease of mortgaged or incumbered land shall be valid as
against the mortgagee or incumbrancee, unless he has consented in
writing to the lease prior to registration, or subsequently adopts the
same.

93. In every lease, unless a contrary intention appears therein,
there shall be implied covenants by the lessee:

(a) that he will pay the rent thereby reserved at the times
therein mentioned;

(&) that he will at all times during the continuance of the
lease keep, and at the termination thereof yield up, the
demised land and view the state of repair, and may serve
damage to buildings from fire,' storm and tempest, or other
casualty, and reasonable wear and tear excepted.

94. In every lease, unless a different intention appears therein,
there shall also be implied powers in the lessor:

(a) that he may by himself or his agents enter upon the
demised land and view the state of repair, and may serve
upon the lessee, or leave at his last or usual place of
abode or upon the demised land, 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 so to do.

(&) that in case the rent reserved, or any part thereof, is in
arrear for the space of two calendar months, although no
formal demand thereof shall have been made, or in case
default is made in the performance of any covenant on
the part of the lessee, whether express or implied, and
such default 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, it shall be lawful for the lessor, at any time
thereafter, into and upon the demised premises or any
part thereof in the name of the whole to re-enter, and the
same to have again, repossess and enjoy, as of his former
estate; <.

(c) that if the lessee or any other person shall be convicted
of keeping a disorderly house, within the meaning of the
Criminal Code, on the demised premises or any part
thereof, it shall be lawful for the lessor, at any time there-
after, into and upon the demised premises to re-enter, and
the same to have again, repossess and enjoy, as of his
former estate.

95. (1) Upon proof to his satisfaction of lawful re-entry and
recovery of possession of leased land by a lessor or his transferee, by a
legal proceeding, the registrar shall make a memorandum of the same
upon the certificate of title, and upon the duplicate thereof when pre-
sented to him for the purpose, 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 theretofore com-
mitted.

(2) The registrar shall cancel the lease, if delivered up to him
for that purpose.

SASKATCHEWAN'. 621

96. (1) Whenever in a lease made under this Act any of the
forms of words in column one of form O, and distinguished by any
number therein, is used, the lease 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: provided that it shall not be necessary in any
such lease to insert any such number.

(2) Every such form shall be deemed a covenant binding upon
the covenantor, his executors, administrators and assigns, in favour
of the covenantee and his executors, administrators and assigns.

(3) There may be introduced into or annexed to any of the forms
in the first column any expressed exceptions from the same, or
expressed qualifications thereof respectively, and the like exceptions
or qualifications shall be taken to be made from or in corresponding
forms in the second column.

97. (1) When a lease or demise which has been registered is
intended to be surrendered, and the surrender is effected otherwise
than by the operation of law, the registrar shall, upon the production
of a surrender (form P). make a memorandum thereof upon the certi-
ficate of title in the register and upon the duplicate: provided that no
lease subject to mortgage or incumbrance shall be surrendered without
the consent of the mortgagee or incumbrancee.

(2) When the memorandum has been so made, the estate or inter-
est of the lessee shall vest in the lessor, or other person entitled to the
land on expiry or determination of the lease.

Mortgages and incumbrances.

98. (1) When land for which a certificate of title has been
granted is intended to be charged or made security in favour of a
mortgagee, the mortgagor shall execute a mortgage (form Q. or to
the like effect).

(2) When such land is intended to be charged with or made secur-
ity for the payment of an annuity, rent-charge, or sum of money other
than a debt or loan in favour of any incumbrancee. the incumbrancer
shall execute an incumbrance (form R, or to the like effect).

(3) Every such instrument shall contain an accurate statement of
the estate or interest intended to be mortgaged or incumbered, and
shall for description of the land refer to the certificate of title under
which the estate or interest is held, or give such other description as
will identify it.

99. (1) A mortgage or any other instrument affecting land by
way of charge, lien, or incumbrance given to secure the payment of
the whole or part of the purchase price of chattels, and executed before
the expiration of six months after the delivery to the purchaser of
the said chattels or any of them, shall be absolutely null and void to
all intents and purposes whatsoever, anything contained in any Act to
the contrary notwithstanding.

(2) The foregoing sub-section shall not apply to instruments
given to secure payment of the whole or part of the purchase price of
goods, wares, or merchandise or fixtures sold either to a merchant in
the course of his business, or to enable any person to enter into and
carry on business as a retail merchant.

(3) [Sub-s. 1 does not apply when land has been "sold with chat-
tels upon an entire consideration."]

622 APPENDIX OF STATUTES.

(4) If by fraud, inadvertence or otherwise, any such mortgage or
other instrument, or a caveat founded thereon, is registered, such reg-
istration shall be absolutely null and void to all intents and purposes
whatsoever.

100. (1) If the holder of a mortgage or incumbrance, created by
any person rightfully in possession of land prior to the issue of the
grant from the Crown, or prior to the issue of the transfer from the
Hudson's Bay Company, or from any company entitled to a grant of
such lands from the Crown, or to which letters patent from the Crown
have already issued, produces to and leaves with the registrar the
mortgage or incumbrance accompanied by an affidavit by the mort-
gagor or incumbrancer (form E), and also, in the case of lands mort-
gaged or incumbered prior to the issue of transfer from the Hudson's
Bay Company or other company as aforesaid a certificate from the land
commissioner, or other proper officer of the company, tnat the pur-
chase price of such mortgaged of incumbered lands has Deen paid, and
that the mortgagor or incumbrancer is entitled to a transfer in fee
simple therefor from such company, the registrar shall file such mort-
gage or incumbrance.

(2) The registrar shall, on registering the grant or transfer of
lands so mortgaged or incumbered enter in the register, and endorse
upon the duplicate certificate of title when one is issued, a memoran-
dum of the mortgage or incumbrance.

(3) When so entered, the mortgage or incumbrance shall be as
valid as if made subsequent to the issue of the grant, or to the issue of
the transfer from the Hudson's Bay Company, or from any company
entitled to a grant of such lands from the Crown, or to which letters
patent from the Crown for such lands may have issued, as the case
may be.

101. When a mortgage or incumbrance is registered under the
provisions of this Act, the registrar shall retain possession of the
duplicate certificate of title on behalf of all persons interested in the
land covered by such mortgage or incumbrance; but he shall, if
desired, furnish to the owner of such mortgage or incumbrance a cer-
tificate of charge, which may be in form S.

102. A mortgage or incumbrance under this Act shall have effect
as security, but shall not operate as a transfer of the land thereby
charged.

103. (1) An order or judgment for alimony may be filed in any
land titles office in Saskatchewan, and the filing shall, so long as the
order or judgment remains in force, bind the estate and interest of
every description which the defendant has in any lands in the land reg-
istration district where the filing is made, and operate thereon, in the
same manner, and with the same effect, as the registration of a charge
by the defendant of a life annuity on his lands.

(2) From and after the receipt by the registrar of such order or
judgment, no certificate of title shall be granted, and no transfer,
mortgage, incumbrance, lease, or other instrument executed by the
defendant shall be effectual, except subject to the rights of the person
entitled to alimony, while such order or judgment is legally in force.

(3) The registrar, on granting a certificate of title, and on reg-
istering any transfer, mortgage, or other instrument executed by the
defendant affecting such land, shall by memorandum upon the certifi-
cate of title in the register, and on the duplicate, state that such certi-
ficate, transfer, mortgage, or other instrument is subject to such rights.

SASKATCHEWAN. 623

(4) The charge created by such order or judgment may be dis-
charged by the filing of a release or discharge in writing, executed by
the person entitled to the alimony, or of a judgment ur order of the
court setting aside the order or judgment, or by a certificate of a reg-
istrar or clerk of the court under the seal of the court that the order or
judgment has been discharged or set aside.

104. In every mortgage there shall be implied, against the mort-
gagor remaining in possession, a covenant that he will repair 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 the mortgage is redeemed, enter into or upon the land, with or
without surveyors, to view the state of repair of the buildings or im-
provements.

105. (1) When, in a mortgage made under this Act, any of the
forms of words in column one of form T, and distinguished by any
number therein, is used, such mortgage shall 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; but it shall not be necessary in any such mortgage to
insert such number.

(2) Every such form shall be deemed a covenant by the mortgagor
with the mortgagee and his legal representatives or transferees, bind-
ing the former and his executors, administrators and transferees; and
there may be introduced into or annexed to any of the forms in the
first column any expressed exceptions from the same, or expressed
qualifications thereof respectively, and the like exception or qualifica-
tions shall be taken to be made from or in the corresponding forms in
the second column.

106. A mortgagee or incumbrancee of lands may from time to
time, either upon the written request of the owner, or, in case default
has been made, without such request, insure against loss by hail the
crops growing on the land subject to the mortgage or incumbrance,
and the cost of such insurance shall be added to the principal sum
owing under and by virtue of the mortgage or incumbrance, and shall
be repayable with interest on the then next ensuing date set for pay-
ment of any instalment of principal or interest.

Remedies of mortgagees and incumbrancees.

107. Proceedings to enforce payment of moneys secured by mort-
gage or incumbrance, or to enforce the observance of the covenants,
agreements, stipulations, or conditions contained in a mortgage or
incumbrance, or for sale of the lands mortgaged or incumbered, or to
foreclose any estate, interest, or claim in or upon the lands mortgaged
or incumbered, or to redeem or discharge land from a mortgage, may
be had and taken in the Supreme Court of Saskatchewan.

108. (1) In every case where:

(a) a registered mortgage or incumbrance contains a cove-
nant authorizing the mortgagee or incumbrancee, upon
default in payment of the principal, interest, annuity or
rent-charge, or any part thereof, thereby secured, or in
the observance of any covenant expressed or by this Act
declared to be implied therein, to enter into possession

624 APPENDIX OF STATUTES.

of the lands, and receive and take the rents, issues and
profits thereof;
(ft) such default has been made, and has continued for the
space of one calendar month, or for such longer time as
may be expressly limited for the purpose;
(c) the mortgagee or incumbrancee has registered notice of
his intention so to do, and has served copies of such
notice upon the mortgagor or incumbrancer, his execu-
tors, administrators or assigns, and upon every other
person appearing by the records of the land titles office
at the date of registration of the notice to have any mort-
gage, incumbrance or lien upon, or estate, right, or inter-
est in or to the lands subsequent to such first named
mortgage or incumbrance:
the mortgagee or incumbrancee may, without the further consent or
concurrence of any person interested, enter into possession of the
lands, and receive and take the rents, issues and profits thereof, and
whether in or out of possession, may lease the same or any part
thereof as he may see fit.

(2) The term covered by a lease or leases made under the preced-
ing sectioni shall not extend in all beyond a period of five years.

(3) The mortgagee or incumbrancee may by such notice require
the mortgagor or owner, and such other interested persons as afore-
said, to pay within a time to be specified in the notice the money then
due or owing on the mortgage or incumbrance, or to observe the cove-
nants therein expressed or implied; as the case may be, and may
notify them that all remedies competent will be enforced unless such
default be remedied.

109. Upon such default in payment, or in the observance of any
covenant, continuing for the further space of two calendar months
from the date of service of such notice, the mortgagee or incumbrancee
may, pursuant to any power of sale contained in the mortgage or
incumbrance, sell the land or any part thereof, and all the estate and
interest therein of the mortgagor or incumbrancer and of the other
interested parties referred to in the last preceding section, at such
time and in such manner as the registrar may direct, and either alto-
gether or in lots, by public or private contract, or by such modes of
sale and subject to such terms and conditions as to expenses or other-
wise as the registrar may think fit.

110. (1) Such mortgagee or incumbrancee may make and execute
all such instruments as shall be necessary for the sale and enjoyment
of the premises; and such instruments shall be as valid and effectual
as if the mortgagor or incumbrancer and other persons aforesaid haa
made, done or executed the same.

(2) The receipt in writing of the mortgagee or incumbrancee shall
be a sufficient discharge to the purchaser of such land, estate or inter-
est, or of any portion thereof, for so much of his purchase money as
may thereby be expressed to be received, and no such person shall be
answerable for the loss, misapplication or nonapplication, or be obliged
to see to the application of the purchase money by him paid, nor shall
he be obliged to enquire as to the fact of any default or notice having

i This is a misprint for " sub-section."

SASKATCHEWAN. 625

been made or given as aforesaid, or how the purchase money to arise
from the sale of any such land, estate, or interest shall be applied.

110A. Where land is sold in an action or proceeding upon a mort-
gage or incumbrance, the purchase money [M. 1913, s. 120, ante p. 592.]

111. Upon the registration of any instrument executed by a mort-
gagee or incumbrancee for the purpose of such sale as aforesaid, the
estate or interest of the owner of the land mortgaged or incumbered
shall pass to and vest in the purchaser, freed and discharged from all
liability on account of such mortgage, and of any mortgage, lien,
charge, or incumbrance created by any instrument registered subse-
quent thereto, and the purchaser shall be entitled to receive a certifi-
cate of title for the same.

112. (1) When default has been made in payment of the princi-
pal or interest secured by a mortgage or incumbrance, and such
default has continued for six months after the time fixed for payment,
the mortgagee or incumbrancee. or his transferee may make an applica-
tion in writing to the registrar for an order for foreclosure.

(2) The application shall state that such default has been made,
and has continued for the period aforesaid, that the land mortgaged
or incumbered has been offered for sale at public auction under the
provisions of this Act. that the amount of the highest bid at the sale
was not sufficient to satisfy the moneys secured by the mortgage or
incumbrance, together with the expense occasioned by the sale, and
that the notice mentioned in section 108, or subsequent notice served
upon the same persons, declared the intention of the mortgagee or
incumbrancee to apply for foreclosure in case such sale should prove
abortive.

(3) The application shall be accompanied by such proof of the
matters stated by the applicant, and such other evidence, as the reg-
istrar may require.

113. Unless the registrar shall see fit to order otherwise, the
notice, whether of intention to enter into possession of the lands and
receive and take the rents, issues and profits thereof, or to sell, or to
apply for a foreclosure order, shall be served personally on the owner,
mortgagor or incumbrancer, and other persons interested as aforesaid;
but in case any of such persons cannot after due diligence be found,
the registrar may direct service of the notice by leaving it on the mort-
gaged lands, or by mailing it in a sealed envelope by registered post,
directed to him at his last known address, or in such other manner
as the registrar may deem expedient.

114. (1) Upon receipt of the application mentioned in section
112, the registrar may, if he considers it proper, cause notice to be
published once in each of three consecutive weeks in one or more
specified newspapers, and in two consecutive issues of the Saskatche-
wan Gazette, offering such land for private sale.

(2) The registrar shall appoint a time not 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, when he may issue to the applicant an order of foreclo-
sure, unless in the interval a sufficient amount of money has been
obtained from the sale, or paid by or on behalf of the owner, mort-
gagor or incumbrancer, or other person as aforesaid, to satisfy the

r.t.l. — 40

626 APPENDIX OF STATUTE'S.

principal and interest and other moneys secured, and all expenses
occasioned by such sale and proceedings.

(3 Every such order of foreclosure under the hand of the registrar
shall, when entered in the register, have the effect of vesting in the
mortgagee or incumbrancee, or his transferee, the land mentioned
therein, free from all right and equity of redemption on the part of
the owner, mortgagor or incumbrancer, or any person claiming through
or under him subsequently to the mortgage or incumbrance; and such
mortgagee, incumbrancee, or transferee shall, upon such entry being
made, be deemed a transferee of the land and become the owner
thereof, and be entitled to receive a certificate of title for the same.

115. In case default is made in the payment of money due under
a mortgage, or in the observance of a covenant contained therein, and
under the terms of the mortgage by reason of such default the pay-
ment of other portions of the principal money is accelerated, and
such portions become presently due and payable, the mortgagor may,
notwithstanding any provision to the contrary and at any time before
sale, or before the grant of a final order of foreclosure, perform such
covenant or pay such arrears as are in default, with costs to be taxed
by the registrar, and the mortgagor shall thereupon be relieved from
immediate payment of so much of the money secured by the mortgage
as may not have become payable by lapse of time.

(2) The provisions of this section shall apply to all mortgages
whenever made.

116. A mortgagor may agree in writing to become the tenant of
the mortgagee, and in case of such agreement heretofore or hereafter
made, the relationship of landlord and tenant shall be held to have
been validly constituted between the parties for all purposes, and as
against all persons whomosever: provided that nothing herein con-
tained shall affect the rights of any parties in any action or other
proceeding now pending.

Transfers and discharges, mortgages, incumbrances and leases.

117. (1) When a mortgagor or incumbrancer is entitled to
redeem, he may require the mortgagee or incumbrancee, instead of
giving a discharge, to transfer the mortgage or incumbrance to a
third party named by him (form U).

(2) When any person other than the mortgagor or incumbrancer
is interested in the land covered by a mortgage or incumbrance, and
is entitled to redeem, he may require the mortgagee or incumbrancee,
instead of giving a discharge, to transfer the mortgage or incumbrance
to him.

118. (1) Upon production to the registrar of:

(a) a memorandum of discharge, duly executed and attested,
discharging the whole or part of a mortgage or incum-
brance, or the whole or a part of the land therein com-
prised; or
(6) a certificate signed by a judge that payment of the whole
or a part of the moneys due under a mortgage or incum-
brance has been proved to his satisfaction;
the registrar shall make an entry on the register that the mortgage
or incumbrance is discharged, wholly or in part, or that part of the
land is discharged, as the case may be.

SASKATCHEWAN.

627

(2) Upon such entry being made the land, or the estate or interest
in the land, or the portion of the land mentioned or referred to therein,
shall cease to be liable for such principal sum or annuity, or for the
part thereof mentioned in the entry as discharged, as the case may be.

119. (1) Upon:

(a) proof of the death of the annuitant, or of the happening
of the event upon which, by the terms of an incumbrance,
the annuity or money thereby secured ceases to be pay-
able, and that all arrears of the annuity and interest or
other money have been satisfied; or
(&) production of a judge's order declaring or directing the
discharge of the incumbrance;
the registrar shall make a memorandum on the certificate of title and
duplicate that the incumbrance is discharged.

(2) Upon such memorandum being made, the land shall cease to
be subject or liable for such annuity or sum of money.

120. If a mortgagor becomes entitled to pay off the mortgage
money, and the registered mortgagee is absent from Saskatchewan.
and there is no person authorized by registered power of attorney to
give a receipt to the mortgagor for the mortgage money, or if the
registered mortgagee is deceased and has no legal representative, a
judge may, after the date appointed for redemption, on proof of the
facts and of the amount due for principal and interest, direct the pay-
ment of the mortgage money with all arrears of interest to the pro-
vincial treasurer, who shall hold the same for the mortgagee, or other
person entitled thereto.

121. (1) The registrar shall, upon presentation of the judge's
order, and of the receipt of the provincial treasurer for the amount of
the said mortgage money or interest, make a memorandum upon the
certificate of title in the register, describing such mortgage and stat-
ing the day. hour, and minute on which the memorandum is made.

(2) Such memorandum shall be a valid discharge of the mortgage.

(3) 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.

(4) The registrar shall endorse on the duplicate certificate of title,
and also on the mortgage, the several particulars to be endorsed upon
each of such instruments respectively.

(5) After payment as aforesaid of any mortgage money and inter-
est, the interest upon the mortgage shall cease to run or accrue, and
the mortgagee entitled thereto shall not recover any further sum in
respect of such mortgage than the amount so paid.

122. (1) Mortgages, incumbrances, and leases of land for which
a certificate of title has been granted may be transferred, by a transfer
executed in form U.

(2) The transfer shall be registered in the same manner as mort-
gages, incumbrances and leases are registered.

(3) Transfers shall have priority according to the time of regis-
tration.

(4) In case of a charge by a mortgagee of his interest in a mort-
gage, the person in whose favour the charge is created shall be deemed
the transferee of such interest, and shall have all rights and powers as
such, subject to the provisos and conditions expressed in the instru-
ment creating the charge, or implied therein by virtue thereof.

628 APPENDIX OF STATUTES.

123. (1) A mortgagee may transfer a part of the sum secured by
the mortgage, by a transfer executed in form V, and the part so trans-
ferred shall continue to be secured by the mortgage, and may by the
transfer be given priority over the remaining part, or be deferred, or
continue to rank equally with such part, under the security of the
original mortgage.

(2) The registrar shall enter on the certificate of title and dupli-
cate a memorandum of the amount of the mortgage money so trans-
ferred, the name of the transferee, and how such sum is to rank, and
shall notify the mortgagor of the facts.

124. (1) Upon the registration of a transfer of a mortgage,
incumbrance or lease, the interest of the transferor as set forth in
such instrument, with all rights, powers, and privileges thereto apper-
taining shall pass to the transferee; and the transferee shall thereupon
become subject to the same liabilities as if named in the original
instrument as mortgagee, incumbrancee or lessee, to the extent of the
interest transferred.

(2) By virtue of every such transfer the right to sue upon the
mortgage or other instrument, and to recover the amount transferred
or damages, and all the interest of the transferor in such amount or
damages, shall vest in the transferee.

(3) Nothing herein contained shall prevent the court from giving
effect to any trusts affecting such amount or damages, in case the
transferee holds the same as trustee for another person.

Powers of attorney.

125. (1) Any person may authorize and appoint one or more
persons to act for him or on his behalf, with respect to the transfer or
other dealing with land, or with any lease, mortgage, or incumbrance
of land of which he may at the time be, or may subsequently become,
the owner in accordance with the provisions of this Act, by executing a
power of attorney in any form heretofore in use for the purpose, in
which the land or instrument is not specifically mentioned and
described but is mentioned and referred to in general terms, any of
which forms of power of attorney the registrar shall file or register,
as the circumstances of the case may require.

(2) If the land referred to in a power of attorney is specifically
described, form W or a form of the like effect shall be used.

(3) Upon registration of such specific power of attorney, the reg-
istrar shall make a memorandum upon the certificate of title and
duplicate of the particulars therein contained, and of the time of its
registration.

(4) Where the power given is to deal with a specified and regis-
tered lease, mortgage or incumbrance, form X or a form to the like
effect shall be used.

(5) Until such power of attorney, in which the land or instrument
referred to is specifically described, is revoked by a revocation (form
Y), the right of the owner to transfer or to otherwise deal with the
land or instrument shall be suspended.

(6) The execution or registration of a general power of attorney
shall not in any way affect the right of the owner to transfer or
otherwise deal with his land, or with any lease, mortgage or incum-
brance.

SASKATCHEWAN. 629

126. (1) The registrar is hereby empowered to recognize for the
purpose for which it was executed, in so far as it concerns any land
in his district belonging to the person who executed it, any power of
attorney which is in the general form referred to in the last preceding
section, and which has heretofore been or shall hereafter be deposited,
filed or registered in his office.

(2) Where an original power of attorney, in any form mentioned
in the last preceding section, has heretofore been or shall hereafter be
deposited, filed, or registered in a land titles office, a copy thereof, cer-
tified as such by the registrar in whose office it is of record, may be
accepted by any other registrar in lieu of the original and be recog-
nized by him for the purpose for which the original power «f
attorney was executed, in so far as it affects any land in the district of
the last mentioned registrar belonging to the person who executed it.

(3) The registrar may accept and register, in lieu of the original,
a document purporting to be a copy of a document of record in any
registry or land titles office of any province or territory of Canada, or
of the United Kingdom of Great Britain and Ireland, or of any British
possession, or of any of the United States of America, certified a true
copy under the hand and seal of the registrar; or purporting to be a
copy duly certified by a notary or prothonotary of the province of
Quebec as a true copy of a document filed or enregistered with him,
and in his possession as such notary or prothonotary.

127. (1) Any such power of attorney may be revoked by a revo-
cation (form Y).

(2) After registration of a revocation of a power of attorney, the
registrar shall not register any transfer or other instrument made by
virtue of the provisions of such power, unless executed prior to such
revocation.

Caveats.

128. Any person, claiming to be interested in land for which a
certificate of title has been granted, may file a caveat with the reg-
istrar, to the effect that no registration of any transfer or other instru-
ment affecting the said land shall be made, and no certificate of title
to such land granted, until such caveat has been withdrawn, or has
lapsed as hereinafter provided, unless such instrument or certificate of
title is expressed to be subject to the claim of the caveator as stated
in such caveat.

129. No caveat may be registered which has annexed thereto or
endorsed thereon, or which refers to or is founded upon, a writing or
any part, thereof within the meaning of .the Act respecting Lien Notes
and Conditional Sales of Goods, or any written order, contract, or
agreement for the purchase or delivery of chattels other than a contract
for the sale of land with chattels upon an entire consideration.

130. (1) Every such writing, and every such written order, con-
tract, or agreement for the purchase or delivery of chattels shall be,
in so far as it affects or purports to affect land in Saskatchewan, abso-
lutely null and void to all intents and purposes whatsoever, anything
contained in any Act to the contrary notwithstanding.

(2) If by inadvertence, accident, or the nonperformance of duty
on the part of the registrar, or otherwise howsoever, a caveat is reg-
istered contrary to the provisions of the preceding section, such reg-

630 APPENDIX OF STATUTES.

istration shall nevertheless be absolutely null and void to all intents
and purposes whatsoever.

131. The registrar may enter a caveat:

(a) on behalf of his Majesty, or of any person under dis-
ability, to prohibit the transfer or dealing with any land
belonging, or supposed to belong, to the Crown or such
person ; or

(b) to prohibit the dealing with land in respect of which it
shall appear to him that an error has been made in the
certificate of title, or any other instrument, or for the
prevention of threatened or apprehended fraud or im-

• proper dealing.

132. A caveat shall be in form Z, shall be verified by the oath of
the caveator or his agent, and shall contain an address within Sas-
katchewan at which notices may be served.

133. (1) Upon the receipt of a caveat the registrar shall enter
the same in the day book, and make a memorandum thereof upon the
certificate of title of the land affected thereby, and shall forthwith
send a notice of the caveat through the post office or otherwise, to the
person against whose title it has been registered.

(2) A caveat to prevent the bringing . of land under this Act
except subject to the claim of the caveator, as stated in such caveat,
may be filed before a certificate of title is granted, and in such case the
registrar shall, on receipt of the caveat, enter the same in the day
book.

134. While a caveat remains in force, the registrar shall not enter
in the register any memorandum of a transfer or other instrument
purporting to transfer, incumber, or otherwise deal with or affect the
land in respect to which such caveat is lodged, except subject to the
claim of the caveator.

135. The owner, or other person claiming an interest in such
land, may by summons call upon the caveator to attend before a
judge, to show cause why the caveat should not be withdrawn; and
the said judge may, upon proof that such last mentioned person has
been summoned and upon such evidence as he may require, make such
order in the premises as to him seems meet.

136. (1) Subject to the provisions of the preceding section, such
caveat shall continue in force until it is removed in the manner here-
inafter set forth.

(2) Except in the case of caveats under an Act respecting Home-
steads, being chapter 29 of the statutes of 1915, and caveats filed by
the registrar, the owner or other person claiming an interest in the
land may require the registrar, by notice .in writing (form AA), to
notify the caveator, at his address for service as set forth in the
caveat, that such caveat shall lapse at the expiration of thirty days
from the mailing of the notice by the registrar, unless in the mean-
time the caveator shall file with the registrar a judge's order providing
for the caveat continuing beyond the said thirty days. The notice
from the registrar shall be given by registered letter.

(3) If such order is not filed with the registrar within the time
limited by the notice, the caveat shall lapse. If such order is filed
within the time so limited, the caveat shall lapse at the expiration of
the extended period named in the order, unless a further order continu-
ing the caveat is in the meantime filed with the registrar.

SASKATCHEWAN.

631

(4) In case an interest in the land other than the interest of the
caveator is protected by such caveat, the registrar may refuse to
notify the caveator as required by this section, and in such case the
removal of the caveat shall be subject only to the provisions of section
135.

137. The caveator or his personal representatives may, by notice
in writing to the registrar, withdraw his caveat at any time; but, not-
withstanding such withdrawal, the court or judge may order payment
by the caveator of the costs of the caveatee incurred prior to such with-
drawal.

138. (1) A memorandum shall be made by the registrar upon the
certificate of title and upon the duplicate certificate of the withdrawal,
lapse, or removal of any caveat, or of any order made by the court or
a judge in connexion therewith.

(2) After such withdrawal, lapse or removal, it shall not be law-
ful for the same person, or for any one on his behalf, to register a
further caveat in relation to the same matter, unless by leave of a
judge.

139. (1) Any person registering or continuing a caveat wrong-
fully, and without reasonable cause, shall make compensation to any
person who has sustained damage thereby.

(2) Such compensation with costs may be recovered by proceed-
ings at law, if the caveator has withdrawn his caveat and no proceed-
ings have been taken by the caveatee as herein provided.

(3) If proceedings have been taken by the caveatee, the com-
pensation and costs shall be determined by the court or judge acting
in the same proceedings.

PART V. Involuntary Transfer of Title.
Transmission.

140. When the owner of land for which a certificate has been
granted dies, such land shall, subject to the provisions of this Act,
vest in his personal representative.

141. (1) When land, or a mortgage, incumbrance, or lease affect-
ing land for which a certificate of title has been granted is to be trans-
mitted in consequence of the death of the owner, the person claiming
transmission shall:

(a) apply in writing to be registered as owner;
(&) produce to the registrar the probate of the will of the
deceased owner, or letters of administration to his estate,
or an order of court authorizing him to administer the
same, or a duly certified copy of such probate, letters of
administration or order, as the case may be; and
(c) deposit with the registrar a sworn copy thereof;
and the registrar shall thereupon make a memorandum upon the certi-
ficate of title and duplicate of the date of the will and of the probate,
or of the letters of administration, or order of court, as aforesaid, the
date, hour, and minute of the production of the same to him, and of
such other particulars as he deems necessary.

(2) For the purposes of this Act, the production of the probate
of a will or letters of administration granted by the proper court of
any province or territory of Canada, or of the United Kingdom of
Great Britain and Ireland, or of any British possession, or of any of
the states of the United States of America, or confirmation or testa-

632 APPENDIX OF STATUTES.

ment dative granted by the proper court in Scotland, or an exemplifi-
cation or duly certified copy thereof, resealed under the direction of a
judge of a surrogate court, and the deposit with the registrar of a
sworn copy thereof, or the deposit with the registrar of a document
duly certified by a notary or a prothonotary of the Province of Quebec
as a true copy of a will filed or enregistered with him and in his cus-
tody, shall be sufficient.

142. (1) Upon such memorandum being made, the executor or
administrator, as the case may be, shall be deemed to be owner of the
land, mortgage, incumbrance, or lease, as the case may be.

(2) The registrar shall note the fact of the registration by a
memorandum under his hand on the probate of the will, letters of
administration, order or other instrument.

143. The title of the executor or administrator shall relate back,
and take effect as from the date of the death of the deceased owner.

144. When land is transmitted, the duplicate certificate of title
issued to the deceased owner shall be delivered up to be cancelled, or
be proved to have been lost or destroyed, and the registrar shall grant
to the executor or administrator as such a new certificate.

145. A discharge or transfer of mortgage, executed by the execu-
tor or administrator of the deceased owner, may be registered without
formal transmission, on production of the original probate of the will
or letters of administration, or of a copy thereof duly certified by the
proper officer of the court granting such probate or administration,
and deposit with the registrar of a sworn copy thereof, and on filing a
certificate from the attorney-general that all succession duties payable
by the estate have been paid or secured.

146. (1) For the purpose of registered dealing, the person to
whom land of a deceased owner has been transmitted shall, subject to
the next following sub-section, be considered the absolute owner
thereof, but he shall nevertheless hold the land upon the trusts and
subject to any equitable claims with which it was affected before
transmission.

(2) The registrar shall not register any transfer, mortgage, or
other instrument executed by the executor or administrator, except an
application for transmission, or a caveat, or discharge of mortgage,
unless:

(a) a certificate of the official guardian made subsequent to
the date of grant of letters probate or administration, or
of resealing thereof, that he has satisfied himself that
there are no infants interested in the estate of the
deceased owner, has been filed with the registrar; or

(&) the instrument to be registered is accompanied by the
consent of the official guardian to the proposed dealing; or

(c) the instrument to be registered is accompanied by an
order of a judge of a court of competent jurisdiction,
authorizing the proposed dealing.

(3) [General consent may be filed by official guardian.]

147. (1) Upon an assignment under the provisions of the
Assignments Act being made for the benefit of his creditors by the
owner of land for which a certificate of title has been granted, or by
the owner of a mortgage or incumbrance, the assignee may file the
assignment, and may at any time thereafter apply to be registered as
owner of the land, mortgage or incumbrance, and the registrar may,
pursuant to such application, transmit the land, mortgage, or incum-

SASKATCHEWAN. 633

brance to such assignee, who shall thereupon become the owner
thereof.

(2) From and after the receipt by: the registrar of such assign-
ment, he shall not permit any dealings with such land, mortgage, or
incumbrance by the original owner, nor shall he register any transfer,
mortgage, lease or other instrument, made or executed by him affect-
ing the same or any part thereof.

148. In case the assignor, within thirty days after the filing ol
the assignment, files with the registrar a claim in writing, signed in
the presence of an attesting witness, that any of his land, describing it.
is exempt from seizure under execution or other legal process, and such
claim is accompanied either by a writing signed by the assignee satis-
factory in form to the registrar, stating that the assignee agrees that
the lands mentioned are exempt as claimed, or by the order of a
judge declaring such lands so exempt, the provisions of the preceding
section shall not apply to such lands, but the registrar shall permit
the claimant to deal with them as if the assignment had not been made-

Executions.

149. (1) The sheriff or other duly qualified officer, after the
delivery to him of an execution or other writ then in force affecting
land shall, if a copy of such writ has not already been delivered or
transmitted to the registrar, and on payment to him by the execution
creditor named therein of fifty cents together with the amount of the
registrar's fee, forthwith deliver or transmit by registered letter to
the registrar a copy of the writ, and of all endorsements thereon, cer-
tified under his hand and seal of office (if any) together with such
registration fee.

(2) Such writ shall, from and only from the receipt of a certified
copy thereof by the registrar for the land registration district in
which the land affected thereby is situated, bind and form a lien and
charge on all the lands of which the debtor may be or become regis-
tered owner situate within the judicial district the sheriff of which
transmits such copy, including lands declared by the Exemptions Act
to be free from seizure by virtue of writs of execution, but subject
nevertheless to such equities, charges, or incumbrances as exist against
the execution debtor in such land at the time of such receipt: provided
that nothing herein contained shall be taken to authorize the sheriff
to sell any lands declared by the Exemptions Act to be free from
seizure by virtue of writs of execution.

(3) From and after the receipt by the registrar of such copy, no
certificate of title shall be granted, and no transfer, mortgage, incum-
brance, lease, or other instrument executed by the execution debtor of
such land shall be effectual, except subject to the rights of the execution
creditor under the writ, while the same is legally in force.

(4) The registrar, on granting a certificate of title and on regis-
tering any transfer, mortgage, or other instrument executed by the
execution debtor affecting such land, shall by memorandum upon the
certificate of title in the register, and on the duplicate, state that such
certificate, transfer, mortgage, or other instrument is subject to such
rights.

(5) Every writ, a copy of which is received by the registrar shall,
at the expiration of two years from the date of such receipt, cease to
bind or affect the land of the execution debtor in his district unless,
before the expiration of such period of two years, a renewal of such

634 APPENDIX OF STATUTES.

writ is filed with the registrar, in the same manner as the original is
required to be filed with him.

(6) In case a renewal writ of execution is received by the reg-
istrar, after the expiration of two years from the date of the receipt
of the copy of the original writ, such renewal shall nevertheless bind
the land covered thereby from the time of its receipt, in the same
manner as if it were the certified copy of an original writ.

150. (1) Upon the satisfaction or withdrawal from his hands of
a writ, the sheriff or other duly qualified officer shall forthwith
transmit to the registrar a certificate under his official seal (if any)
to the effect that such writ has been satisfied or withdrawn.

(2) Upon the expiration of a writ of execution, or upon the pro-
duction and delivery to the registrar of such a certificate, or of a
judge's order showing the satisfaction or withdrawal of the writ as
against the whole or any portion of the land so bound, the registrar
shall make a memorandum upon the certificate of title of such expira-
tion, or to the effect so certified or shown, if a certificate of title has
been issued for such land, and whether a certificate of title has been
issued or not, upon or opposite to the entry of the writ in the book to
be kept under the provisions of section 29 of this Act.

. (3) Thenceforth such land or portion of land shall be deemed to
be absolutely released and discharged from the writ.

Sheriff's sale.

151. (1) No sale by a sheriff or other officer, under process of
law, of land for which a certificate of title has been granted shall be
of any effect, until the same has been confirmed by the court or a judge.

(2) When any such land is sold under process of law, the reg-
istrar, upon the production to him of the transfer of same (form BB)
with proof of the due execution thereof, and with an order confirming
the sale endorsed upon the transfer or attached thereto, shall upon
the expiration or four weeks after receiving the same, unless such
registration is in the meantime stayed by order of the court or judge,
register the transfer, cancel the existing certificate of title wholly, or
in part if less than the whole, of the land comprised therein be sold,
grant a certificate of title to the transferee, and issue to him a dupli-
cate certificate.

(3) In case the registration is stayed, it shall not be proceeded
with until an order to that effect has been made by the court or a
judge.

152. (1) A transfer of land so sold under process of law, or for
arrears of taxes under any enactment in force in that behalf prior to
the twenty-fourth day of June 1915, shall not be registered after a
period of two months from the date of the order of confirmation, unless
the period be extended by order of the court or a judge filed with the
registrar.

(2) Such transfer, if not registered within that period or within
the time fixed by such order, shall cease to be valid as against the
owner of the land so sold, and any person or persons claiming by,
from or through him.

153. (1) The application for confirmation of a sale of such land
so made under any process of law may be made by the sheriff, or other

SASKATCHEWAN'. (535

officer making the sale, or by any person interested in the sale, on
notice to the owner, unless the judge to whom the application is made
dispenses with such notice.

- (2) If the sale is confirmed, the costs of confirmation shall be
borne and paid out of the purchase money, or as the judge directs.

(3) In case the sale is not confirmed, the purchase money paid by
him shall be refunded to the purchaser, and the judge may make such
order as to the costs of all parties to the sale, and of the application
for its confirmation, as he thinks just.

Sale for Taxes.

154. In case land for which a certificate of title has been granted
has been sold for taxes, under the provisions of any enactment in
force in that behalf previously to the twenty-fourth day of June 1915.
and in case registration of the transfer hereinafter mentioned has not
been stayed by the order of a judge, then upon completion of the time
allowed by law for redemption, and upon production of a transfer of
the land (form CC) with proof of the due execution thereof by the
proper officer, and a judge's order confirming the sale, the registrar
shall, at the expiration of four weeks from the delivery to him of the
transfer and judge's order, register the transferee as absolute owner
of the lands sold, cancel the certificate of title in whole or in part as
the case requires, grant a new certificate of title to the transferee, and
issue to the purchaser a duplicate certificate.

155. (1) In case land is sold for taxes under the Arrears of
Taxes Act or any other enactment that may be from time to time in
force in Saskatchewan for collection of arrears of taxes, the tax pur-
chaser or his assigns, when applying for title, shall furnish a tax sale
certificate from the treasurer of the municipality.

(2) The registrar shall not enquire into any irregularities in a
tax sale, or in any of the proceedings relating thereto, or in any of the
proceedings prior to or connected with the assessment of the land, but
he shall, before registering the tax purchaser or his assign as owner,
satisfy himself that the sale was openly and fairly conducted.

(3) A certificate from the treasurer who conducted the sale, or
from the treasurer for the time being of the municipality (where he is
authorized to give such certificate), that the sale was openly and fairly
conducted, shall be accepted as prima facie evidence of the fact as
stated.

(4) A certificate purporting to be under the seal of the munici-
pality and the hand of such treasurer shall be received in evidence
by the registrar, without proof of the seal or of the signature, or of
the official character of the person appearing to have signed the same,
and without further proof whatever.

(5) The registrar shall cause to be served upon all persons, other
than the tax purchaser or his assigns, who appear by the records of
the land titles office, and by the last revised assessment roll of the
municipality, at the time of the filing of the application for title
.to be interested in the lands sold, a notice requiring them, within a
time therein to be limited, to contest the claim of the tax purchaser
or his assign, or to redeem the land.

63G APPENDIX OF STATUTES.

(6) [Notice may be served by registered letter] but in that event
he shall not issue a certificate of title for the land until the expiration
of six months from the date of filing the application.

(7) In default of redemption before the registration of the appli-
cant as owner, all persons so served with notice, or who but for the
provisions of sub-section (6) would be entitled to service, shall be for-
ever estopped and debarred from setting up any claim to or in respsct
of the land sold for taxes, and the registrar shall register the person
entitled under such tax sale as owner.

156. The registrar may in his discretion order that the notice
mentioned in the last preceding section, and notice of any subsequent
proceedings, may be served substitutional^, and such substitutional
service shall have the same effect as personal service of the notice or
proceeding upon the person intended to be affected thereby.

PART VII. Court and Other Proceedings.
Reference to master of titles.

157. (1) If any person is dissatisfied with an act, omission
refusal, decision, direction, or order of a registrar, such person may
require the registrar to set forth in writing under his hand the reasons
for such act, omission, refusal, decision, direction or order, and may
then apply to the master of titles by petition setting forth the grounds
of his dissatisfaction.

(2) The master of titles may, upon receipt of the petition allow
any of the parties interested to appear before him, and summon any
other of such persons to appear and show cause, either personally or
by solicitor, in relation thereto.

(3) The master of titles, having caused the registrar to be served
with a copy of the petition, shall hear the petition and make such order
in the premises and as to the costs of the parties appearing as the
circumstances of the case require.

158. (1) The registrar may, when a question arises:

(a) with regard to the performance of a duty, or the exer-
cise of a function, by this Act conferred or imposed upon
him; or

(&) as to the true construction or validity or effect of an
instrument, or as to the person entitled, or as to the
extent or nature of the estate, right or interest, power or
authority, of any person or class of persons; or

(c) as to the mode in which an entry or memorandum ought
to be made in the day book or register, or upon a certifi-
cate of title or duplicate thereof; or

(d) as to any doubtful or uncertain right or interest, stated
or claimed to be dealt with by a registrar;

refer the same in form DD to the master of titles.

(2) The master of titles may, upon the same being referred, allow
any of the parties interested to appear before him, and summon any
other of such persons to appear, and show cause either personally or
by solicitor in relation thereto.

(3) The master of titles, having regard to the persons appearing
before him, whether summoned or not, shall decide the question or

SASKATCHEWAN*. (337

direct any proceedings to be instituted for that purpose, and direct
the particular form of entry or memorandum to be made, as under the
circumstances appears to be just.

Ejectment.

159. (1) No action of ejectment, or other action for the recovery
of land for which a certificate of title has been granted, shall lie
against the owner under this Act, except in the case of:

(a) a mortgagee, as against a mortgagor in default;

(6) an incumbrancee as against an incumbrancer in default;

(d) a person deprived of land by fraud, as against the person
who through such fraud has been registered as owner, or
as against a person deriving title otherwise than as a
transferee bona fide for value from or through such
owner through fraud;

(e) a person deprived of or claiming any land included in any
grant or certificate of title of other land, by misdescrip-
tion of such other land or of its boundaries, as against the
owner of such other land;

(/) an owner claiming under an instrument of title prior in
date of registration, where two or more grants are reg-
istered, or two or more certificates of title issued, in
respect of the same land;
(g) rights arising under any of the clauses of section 60.
(2) In any case other than the above, the production of the dupli-
cate certificate of title, or a certified copy of such certificate, shall be
an absolute bar and estoppel to any such action against the person
named in such certificate as owner or lessee of the land therein
described.

Action for damages.

160-163. Any person sustaining loss or damage through an omis-
sion, mistake, or misfeasance of the registrar or an official in his
office in the execution of his duties, and any person deprived [M. 1913,
s. 154, ante p. 597.]

164. (1) No action shall be brought against the registrar under
sections 160 and 161, unless three months' previous notice in writing
of the intended action, and of the cause thereof, has been served upon
the registrar and the attorney-general of Saskatchewan, respectively.

(2) Every such action shall be brought in the Supreme Court.

[165: M. 1913, s. 156, ante p. 598.]

[166: B. C. 1911, s. 129, ante p. 574.]

167. (1) No action for recovery of damages under this Act shall
lie against a registrar, unless the same is commenced within a period
of six years from the date when the plaintiff was deprived of the land,
or of his estate or interest therein.

(2) Any person who, at the time of such deprivation, is an infant,
or person of unsound mind, may bring action within six years from
the date on which the disability ceases.

168. (1) The provincial treasurer may, without action brought,
pay the amount of a claim against the assurance fund, when author-

638 APPENDIX OF STATUTES.

ized so to do by the attorney-general, on a report of the registrar of
the district in which the land which is the subject of the claim is
situated, setting forth the facts, and a certificate from the master of
titles that in his opinion the claim is just and reasonable.

(2) In such case a reasonable sum to be determined by the master
of titles may be allowed the claimant for costs.

[169: M. 1913, s. 161, ante p. 598.]

170. The assurance fund shall not under any circumstances be
liable for compensation for loss, damage or deprivation:

(a) occasioned by the owner's breach of any trust, whether
express, implied or constructive; or

(b) in any case in which the same land has been included in
two or more grants from the Crown; or

(c) in any case in which loss, damage, or deprivation has been
occasioned by land being included in the same certificate
of title with other land, through misdescription of the
boundaries or parcels; unless it is proved that the per-
son liable for compensation and damages is dead, or has
absconded from the province, or has been adjudged insol-
vent, or the sheriff has certified that he is not able to
realize the full amount and costs awarded in an action for
such compensation; or

(d) by reason of the improper use of the seal of a corporation,
or the want of capacity in a corporation to deal with the
estate or interest involved, or to execute or take the bene-
fit of the instrument registered; or

(e) by reason of the registration of an instrument executed
by a person under legal disability, unless the fact of such
disability was disclosed on such instrument.

[171: N. Z. 1915, s. 189, ante p. 505.]

Evidence and procedure.

172. In an action for an alleged breach of an implied covenant,
the covenant alleged to be broken may be set forth, and it shall be
lawful to allege, in the same manner as if the covenant had been
expressed in words in the transfer or other instrument, any law or
practice to the contrary notwithstanding, that the party against whom
the action is brought did so covenant.
[173: V. 1915, s. 270, ante p. 460.]

174. (1) Every certificate of title and duplicate certificate
granted under this Act shall, except:

(a) in case of fraud wherein the owner has participated or

colluded; and
(o) as against any person claiming under a prior certificate
of title granted under this Act in respect of the same
land; and
(c) so far as regards any portion of the land by wrong
description of boundaries or parcels included in such
certificate of title;
be conclusive evidence, so long as the same remains in force and
uncancelled, in all courts, as against his Majesty and all persons
whomsoever, that the person named therein is entitled to the land
included in the same, for the estate or interest therein specified, sub-

SASKATCHEWAN. 539

ject to the exceptions and reservations implied under the provisions
of this Act.

(2) £M. 1913, s. 80, ante p. 586.]

[175-189. These, the remaining sections under the heading
" Evidence and procedure." relate to procedure only, and are re-enact-
ments almost without change of sections in the repealed statute of
1909. S. 178 contains a new sub-section, and s. 183 is new; otherwise
this group of sections re-enacts the following sections of Sas. 1909
(printed in Can. Tarr. .Syst. 525-528) : 165, 166, 171-176. 178-182. 185.]

PART VIII. Miscellaneous Provisions.
Assurance fund and fees.

190. (1) Before the registrar shall perform any duty under the
provisions of this Act. he shall, except as herein otherwise provided,
demand and receive the proper fees therefor, as fixed and settled by a
tariff to be made from time to time by the Lieutenant Governor in
Council. He shall also demand and receive for the assurance fund,
upon the registration of every grant of land subject to any registered
lien or charge, and upon every absolute transfer of land, one-fifth of
one per cent, of the value of the land transferred if such value amounts
to or is less than five thousand dollars, and one-tenth of one per cent,
on the additional value when such value exceeds five thousand dollars.

(2) Upon every subsequent transfer he shall demand and receive,
upon the increase of value since the granting of the last certificate
of title, one-fifth of one per cent, if the increase is not more than five
thousand dollars, and one-tenth of one per cent, on any excess over
such five thousand dollars.

[191-193: Sas. 1909, ss. 152-154, Can. Torr. Syst. 518.]

Dealings with registered owner.

194. (1) No person contracting or dealing with, or taking or pro-
posing to take a transfer, mortgage, incumbrance or lease from, the
owner of any land for which a certificate of title has been granted
shall, except in case of fraud by such person, be bound or concerned to
enquire into or ascertain the circumstances in, or the consideration
for, which the owner, or any previous owner of the land,* 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 in the land, any
rule of law or equity to the contrary notwithstanding.

(2) Knowledge on the part of any such person, that any trust or
unregistered interest is in existence, shall not of itself be imputed as
fraud.

Joint ownership.

195. (1) Upon the transfer to two or more persons as joint
owners of any land for which a certificate of title has been granted,
to be held by them as trustees, it shall be lawful for the transferor to
insert in the transfer or other instrument the words " no survivor-
ship" and the registrar shall in such case include such words in the

640 APPENDIX OF STATUTES.

duplicate certificate issued to such joint owners pursuant to the trans-
fer, and in the certificate of title.

(2) Any two or more persons, so registered as joint owners of any
land held by them as trustees, may by writing under their hand,
authorize the registrar to enter the words " no survivorship " upon the
duplicate certificate, and also upon the certificate of title.

(3) In either case, after such entry has been made and signed by
the registrar, it shall not be lawful for any less number of joint own-
ers than the number so entered to transfer or otherwise deal with the
land, without obtaining the sanction of the court or of a judge, by an
order on motion or petition.

196. (1) Before making any order as aforesaid, the court or
judge shall, if deemed requisite, cause notice of the application to be
properly advertised, and in such case appoint a period of time within
which any person interested may show cause why the order should
not be made; and thereupon the said court or judge may order the
transfer of the land 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 seems just, for the protection of the persons
beneficially interested in the land, or in the proceeds thereof.

(2) Upon such order being deposited with the registrar, he shall
make a memorandum thereof upon the certificate of title, and upon the
duplicate certificate; and thereupon the person or persons named in
the order shall be the owner or owners of the land.

Tenants in common.

197. Whenever by letters patent, transfer, conveyance, assurance
or other assignment, land or an interest therein is granted, trans-
ferred, conveyed, or assigned to two or more persons, other than
executors or trustees, in fee simple or for any less estate, legal or
equitable, such persons shall take as tenants in common and not as
joint tenants, unless an intention sufficiently appears on the face of
the letters patent, conveyance, assurance or other assignment, that
they shall take as joint tenants.

No estates tail.

198. No estate in fee simple shall be changed into any limited
fee or fee tail, but the land, whatever form of words is used in any
transfer, transmission or dealing, shall, except as hereinafter other-
wise provided, be and remain an absolute estate in the owner for the
time being.

199. Any limitation, which heretofore would have created an
estate tail, shall transfer the absolute ownership oir the greatest estate
that the transferor had in his land.

Married women.

200. When land is transferred to a man and his wife, the trans-
ferees shall take according to the tenor of the transfer, and they shall
not take by entireties, unless it is so expressed in the transfer.

SASKATCHEWAN. g4 ]

201. A man may make a valid transfer of land to his wife, and a
woman may make a valid transfer of land to her husband, without in
either case the intervention of a trustee.

202. The registrar, upon application to him by a married woman,
and upon production of the duplicate certificate of title issued to her
prior to marriage, accompanied by her affidavit of her marriage, giving
the date of same, the place where solemnized, and her husband's full
name, residence and occupation, shall make a memorandum of such
facts upon the certificate of title, cancel the existing certificate and
the duplicate thereof, and grant a new certificate to the applicant
owner in her newly acquired name, such certificate giving her hus-
band's full name, residence and occupation, and shall issue to her a
duplicate certificate.

Infants, idiots and lunatics.

203. 204. When any person . . . is an infant, idiot or lunatic,
the guardian or guardians -of the estate of such a person may, when
thereunto authorized by order of the court or a judge, make such
application [Sas. 1909, ss. 160, 161, Can. Torr. Syst. 521J

General.

205. Nothing contained in this Act shall take away or affect the
jurisdiction of any competent court on the ground of actual fraud, or
over contracts for the sale or other disposition of land for which a
certificate of title has been granted.

[206: Sas. 1909, s. 184, Can. Torr. Syst. 528. J

207. (1) Every owner or mortgagee of land for which a certifi-
cate of title has been granted shall deliver to the registrar a memoran-
dum in writing of a post-office address within the province, to which it
shall be sufficient to mail all notices that under this Act are required
to be sent to an owner or mortgagee.

(2) Every owner shall, if required by the registrar so to do.
before the delivery of any duplicate, sign a receipt therefor in his
own handwriting, or otherwise furnish the registrar with his signa-
ture so as to prevent personation as far as possible.

(3) Every owner or mortgagee shall from time to time notify the
registrar of any change in his post-office address: provided that the
registrar may proceed without such memorandum of address.

208. A purchaser, mortgagee, or incumbrancee for valuable con-
sideration shall not be affected by the omission to send any notice by
this Act directed to be given, or by the nonreceipt thereof.

209. The registrar may require evidence that any person making
a transfer, mortgage, incumbrance or lease, is of the full age of twenty-
one years.

210. Where in this Act a time is limited for filing any document, or
taking any proceeding, and through accident, mistake or inadvertence,
the time thus limited has been allowed to expire without such docu-
ment being filed or proceeding taken, a judge may nevertheless, upon
such terms as may seem just, extend the time so limited; but such
enlargement shall be subject to the rights of third persons accrued

K.T.L. — 41

642 APPENDIX OF STATUTES.

by reason of the failure or omission to file the document or take the
proceeding within the time limited.

Forms and regulations.

211. The forms referred to in this Act are the forms contained
in the second schedule hereto.

[212, 213: Sas. 1909, ss. 183, 188, Can. Torr. Syst. 528, 529/J

214. The Lieutenant Governor in Council may from time to time
provide a tariff of fees for services in connexion with this Act to be
oharged by solicitors, and the fees to be charged by such solicitors for
such services shall be according to such tariff.

215. (1) The Lieutenant Governor in Council may make, and
from time to time alter, such regulations as he may deem expedient as
to when and under what circumstances costs may be charged in pro-
ceedings taken or instituted under sections 108-115 both inclusive of
this Act, and may fix and settle, and from time to time alter, a tariff
of the costs which may be charged in such proceedings, and such regu-
lations and tariff shall have the same effect as if incorporated in and
forming a part of this Act.

(2) Notwithstanding anything contained in any mortgage or in
any agreement, no mortgagei shall charge, take, or receive any other
or greater costs for or in respect of such proceedings than such as are
fixed by the said tariff.

(3) Such costs shall, at the request of any party interested or
affected by such proceedings, be taxed by the registrar, upon giving
such notice as the registrar may direct.

(4) The provisions of this section shall apply to all mortgages
whenever made.

216. The following enactments are hereby repealed:
The Revised Statutes of Saskatchewan 1909, c. 41.

1 George V, 1910-11, c. 12.

2 George V, 1912, c. 16.

3 George V, 1912-13, c. 16.

4 George V, 1913, c. 30.

5 George V, 1914, c. 20, s. 3.

6 George V, 1915, c. 30.

6 George V, 1916, c. 28.

7 George V, 1917, c. 34, s. 8.

217. This Act shall come into force on the first day of May 1918.

i A misprint for " mortgagee."

SASKATCHEWAN.

643

FIRST SCHEDULE.
Boundaries of Land Registration Districts (Section 3).

SECOND SCHEDULE.

[Forms. These for the most part are as in the repealed statute
of 1909 (Can. Torr. Syst. 530 et seq.), but with alterations introduced
from time to time by amending statutes. The chief alterations are:

Covenant to pay taxes is added to the short forms of cove-
nants in lease (f. O post) ;

References to existing incumbrances are omitted in leases and
incumbrances;

Transfer is slightly altered, and requirement of diagram
omitted;

Power of attorney is altered, and additional form inserted.]

COLUMN ONE.

1. Will pay taxes.

2. Will not without
leave, assign or sublet.

FORM O.

(Section 96 (1).)

SJwrt covenants in lease.

COLUMN TWO.

1. That I, the said lessee., will pay all
taxes, rates, duties and assessments what-
soever, whether municipal or provincial,
now charged or hereafter to be charged
upon the said demised premises, or upon
the said lessor on account thereof, except
municipal taxes for local improvements or
works assessed upon the property bene-
fited thereby.

2. That I, the said lessee, will not [Sas.
1909, sch. f. K. Can. Torr. Syst. 539, 540,
omitting in every case " executors, admin-
istrators " and " transferees " throughout
the five covenants.]

644 APPENDIX OF STATUTES.

ALBERTA.

Land Titles Act

(Statutes 1906, c. 24).

Note. — The Act of 1906 is the original statute passed in Alberta,
and nas been amended in nearly every succeeding year to 1919 since
1906. The original Act and its amendments down to 1912 are printed in
a consolidated form in Can. Torr. Syst. 551 et seq. These and subse-
quent amendments (to April, 1919) are embodied in those sections
that are here printed in full. Only such sections are so printed as
differ materially from enactments in other jurisdictions. The sections
that are altogether omitted are for the most part to be found in Can.
Torr. Syst. and usually do not differ from corresponding enactments
in the Saskatchewan statute; these sections are mostly procedural, or
otherwise of less importance. Generally, the present Act as amended
resembles closely the Saskatchewan Act of 1917, though the sections
are arranged differently, and the drafting is often different.

2. [Sas. 1917, s. 2, ante p. 600, except as to the following terms:]

(c) The expression "transfer" means the passing of any
estate or interest in land under this Act, whether for
valuable consideration or otherwise.

(d) The expression "transferor" means the person by whom
any interest or estate in land is transferred, whether for
value or otherwise, and the expression " transferee "
means the person to whom any interest or estate in land
is transferred, whether for value or otherwise.

(e) The expression " mortgage " means any charge on land
created merely for securing a debt or loan.

(/) The expression " mortgagee" means the owner of a mort-
gage; and the expression "mortgagor" means the owner
or transferor of land, or of any estate or interest in land,
pledged as security for a debt or a loan.

(j) The expression "person of unsound mind" means any
person not an infant who, not having been found to be
a lunatic, has been found on like enquiry to be incapable
from infirmity of mind of managing his own affairs. •

(u) The expression " transmission " applies to change of
ownership consequent upon death, lunacy, sale under
execution, order of court or other act of law, sale for
arrears of taxes, or upon any settlement or any legal suc-
cession in case of intestacy.

[20. (1) : M. 1913, s. 12, ante p. 580.

(2) Sas. 1917, ss. 50, 51, ante p. 608, but omitting references
to creditors' assignments, sale by mortgagee, and fore-
closure order.]

[21: Sas. 1917, s. 27 (1), ante p. 604.]

ALBERTA. £45

£22: Sas. 1917, s. 49, ante p. 608.

[23: Sas. 1917, ss. 63, 58 (2), ante pp. 611. 610.]

£24, 25: Sas. 1917, s. 54, ante p. 609.]

26. [(1-4): Sas. 1917, ss. 46^48, ante p. 607.]

(5) The owner of any estate leased or demised to him, or to the
person from whom he claims a title, for a life or for lives, or for a
term of more than three years, in any land for which the grant from
the Crown has been registered, may apply to have his title registered,
and to have a certificate of title issued to him therefor under the
provisions of this Act.

(6) A notification received by the registrar from the minister of
public works of the abandonment by the Crown of any roads or road
allowances or trails, which now are or which may hereafter be vested
in the Crown in the right of the province, shall have the same effect
as a patent issued by the Crown to the person in such notification
mentioned as transferee, and shall be so treated by the registrar. The
notification shall state the nature of the grant, and shall specify any
mines, minerals, easements or rights which are excepted therefrom.

(7) In case any land is expropriated, or any street or portion of a
street is closed, by by-law of any municipality pursuant to any ordi-
nance of the Territories or Act of the legislature of Alberta, a judge
of the Supreme Court may direct that such by-law be registered in
the land titles office for the land registration district in which the land
or the street or portion of a street affected lies, and upon the by-law
being registered the registrar upon payment of the proper fees shall
give a certificate of title to the municipality for the land expropriated,
or the land comprised in the street or portion of the street closed, by
the by-law: provided that the judge before directing the registration
of any such by-law may direct notice of the application of the munici-
pality to be given to such persons as he deems interested therein.

(8) A certified copy of an order in council passed by the Dominion
Government, or other notification that the land therein described in
such order in council or notification has been granted to the province,
shall have and be of the same effect as a patent issued by the Crown,
and shall be so treated by the registrar.

27. (1) The owner of any estate or interest in any land, whether
legal or equitable, letters patent for which issued from the Crown
before the first day of January 1887, or which otherwise had prior to
that date passed from the Crown, may apply to have his title regis-
tered under the provisions of this Act.

[(2): Sas. 1917, s. 31 (3), ante p. 605.]

[28-31: Sas. 1917, ss. 32-38, ante p. 605.]

[32-36: Sas. 1917, ss. 40-44, ante p. 606.]

37. Upon every transfer of land mentioned in a certificate of
title, the certificate of title to be granted shall be granted by the reg-
istrar, and a duplicate shall be issued to the transferee on application.

[38: Sas. 1917, s. 207, ante p. 641.]

[39: Sas. 1917, ss. 27 (2), 52 (1, 2), ante pp. 604, 608.]

Effect of registration.

[40: Sas. 1917, s. 64 (1), ante p. 611.]

41. After a certificate of title has been granted for any land, no
instrument until registered under this Act shall be effectual to pass

646 APPENDIX OF STATUTES.

any estate or interest in any land (except a leasehold interest for
three years or for a less period), or render such land liable as security
for the payment of money; but upon the registration of any instrument
in the manner hereinbefore prescribed, the estate or interest specified
therein shall pass, or as the case may be the land shall become liable
as security, in manner and subject to the covenants, conditions and
contingencies set forth and specified in such instrument, or by this
Act declared to be implied in instruments of a like nature.

42 [(1): Sas. 1917, s. 59, ante p. 610.]

(2) Such priority shall, in favour of any person in possession of
land, be computed with reference to the grant or earliest certificate
of title under which he or any person through whom he derives title
has held possession.

[43: Sas. 1917, s. 60, ante p. 611, clauses (a) to (/), omitting in
clause (6), "and the rights of purchasers at tax sales," and adding:

(g) Any right of way or other easement granted or acquired
under the provisions of any Act or law in force in the
province.]

[44: Sas. 1917, s. 174, ante p. 638.]

[45 : Sas. 1917, s. 208, ante p. 641.]

46. After the certificate of title for any land has been granted, no
instrument shall be effectual to pass any interest therein, or to render
the land liable as security for the payment of money, as against any
bona fide transferee of the land under this Act, unless such instru-
ment is executed in accordance with, the provisions of this Act and is
duly registered thereunder; and the registrar shall have power to
decide whether any instrument which is presented to him for registra-
tion is substantially in conformity with the proper form in the
schedule to this Act or not, and to reject any instrument which he
may decide for any reason to be unfit for registration: provided that
no instrument under which an interest in any land is claimed or dealt
with on behalf of any company, joint stock company or corporation
shall be registered until satisfactory evidence is produced to the
registrar that such company, joint stock company or corporation is
not in arrear for any tax or fee imposed thereon under the Corpora-
tions Taxation Act.

[46A. The registrar shall accept for registration and register dupli-
cate originals, or copies duly certified under the hand of the deputy
minister or acting deputy minister of the interior and the seal of the
department of the interior, of any leases or other registrable instru-
ment or instruments in connexion with or relating to the title to lands
situate within the area set apart for Dominion parks.

[47: Sas. 1917, s. 62, ante p. 611.]

Transfers.

48. When land for which a certificate of title has been granted
is intended to be transferred, or any right of way or other easement is
intended to be created or transferred, the owner may execute a
transfer in the form J in the schedule to this Act, which transfer shall,
for description of the land intended to be dealt with, refer to the cer-
tificate of title of the land, or shall give such description as is sufficient
to identify the same, and shall contain an accurate statement of the

ALBERTA. 647

estate, interest or easement intended to be transferred or created, and
a memorandum of each lease, mortgage or other incumbrance to which
the land is subject.

[49. Whenever an easement or any incorporeal right in or over
any land for which a certificate of title has been granted is created,
for the purpose of being annexed to or used and enjoyed together with
other land for which a certificate of title has also been granted, the
registrar shall make a memorandum of the interest creating such ease-
ment or incorporeal right upon the folio of the register which consti-
tutes the existing certificates of title of such other land, and upon the
duplicate thereof.

50: Sas. 1917, s. 77, ante p. 614.]

51. The registrar, upon cancelling any certificate of title either
wholly or partially pursuant to any transfer, shall grant to the trans-
feree a certificate of title of the land mentioned in the transfer and
issue to the transferee a duplicate thereof, and the registrar shall
retain every transfer and cancelled duplicate certificate of title; but
in the case of a partially cancelled certificate of title the registrar shall
return the duplicate to the transferor, after the memorandum partially
cancelling the same has been made thereon and upon the certificate
of title in the register, or may whenever required thereto by the owner
of an unsold portion of land in any partially cancelled certificate of
title, or where such a course appears to the registrar more expedient,
grant to such owner a certificate of title for such portion of which he
is the owner, upon the delivery of the partially cancelled duplicate
certificate of title to the registrar to be cancelled and retained.

52. (1) In every instrument transferring land for which a certifi-
' cate of title has been granted, subject to mortgage or incumbrance,

there shall be implied the following covenant by the transferee both
with the transferor and the mortgagee, that is to say: That the trans-
feree will pay the principal money, interest [&c M. 1913. s. 97, ante
p. 588.]

(2) Where a transferee declines to register any such transfer, the
transferor or the mortgagee may by notice call upon the transferee.
or such other person or persons as the judge may direct, to shew cause
why the same should not be registered, and upon the return thereof
the judge may order the registration of the said transfer within a time
named, or make such further or other order, and on such terms as to
costs and otherwise, as to him seems meet.

[53: Sas. 1917, s. 79, ante p. 614, but with detailed directions.]

[53A:Sas. 1917, s. 81, ante p. 616, adding detailed directions.]

53B. The provisions of section 53A, except sub-section (g)

thereof, shall mutatis mutandis apply to every person, firm, company

or corporation constructing any gas or oil pipe line, or any other

transmission line, pipe or conduit for which a right of way is acquired.

Leases.

[54: Sas. 1917, s. 92 (1, 4, 5), ante p. 619.]

[55: Sas. 1917, s. 93, ante p. 620. adding covenant to pay "all1
rates and taxes which may be payable in respect of the demised land
during the continuance of the lease."]

(548 APPENDIX OF STATUTES.

56. [Sas. 1917, s. 94, to end of clause (a), ante p. 620.]

(b) That in case the rent, or any part thereof, is in arrear
for the space 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, the lessor
may enter upon and take possession of the demised land.

[57-59. Sas. 1917, ss. 95-97, ante p. 620.]

Mortgages and incumbrances.

60. [(1) : Sas. 1917, s. 98, ante p. 621.]

(2): Sas. 1917, s. 100, ante p. 622.]

(3) Provided however that nothing herein contained shall
entitle a settler who has entered for a homestead, or homestead
and pre-emption under the provisions contained in the Dominion Lands
Act, to mortgage the land entered for by him as a homestead or pre-
emption prior to issue of a patent to him therefor, same in so far as
is permitted by the said Act.

[61: Sas. 1917, s. 102, ante p. 622.

62. (1) Proceedings for recovery of money secured by a mortgage
or incumbrance, or to enforce any provision thereof, or sale, redemp-
tion, or foreclosure proceedings with respect to mortgaged or incum-
bered land may be taken in any court of competent jurisdiction, in
accordance with the existing practice and procedure thereof.

(2) No execution to enforce a judgment upon the personal cove-
nant contained in a mortgage, incumbrance or agreement of sale on or
of land, or on any security therefor, shall issue or be proceeded with
until sale of land, and levy shall then only be made for the amount of
the said moneys remaining unpaid after the due application of the pur-
chase moneys received at the said sale.

(3) As long as execution cannot issue or be proceeded with under
the provisions of this section, the payment of the money secured by a
mortgage or an agreement for sale of land shall not be enforced by
attachment or garnishment, or by the appointment of a receiver, or by
any other process of a similar nature.

(4, 5) A judge of the Supreme Court [may order that sub-ss. 2 and
3 are not to apply to a mortgage, and any such order may be varied or
set aside].

62A. (1) In case default is made in payment of the principal sum.
interest, annuity or rent-charge, or a part thereof, secured by any
mortgage or incumbrance registered under this Act, or in case default
is made in the observance of any covenant, expressed in any mort-
gage or incumbrance or herein declared to be implied in such instru-
ment, and in case such default continues for the space of one calendar
month, or for such longer period of time as may therein for that pur-
pose be expressly limited, the mortgagee or incumbrancee may forth-
with, after giving the notice herein provided, enter into possession of
the lands and receive and take the rents, issues and profits thereof,
and whether in or out of possession thereof may make any lease of the
same, or any part thereof, as he may see fit.

ALBERTA. Q±<)

(2) Such notice shall declare the intention of the mortgagee or
incumbrancee to so enter into possession and receive and take the
rents, issues and profits as aforesaid, and shall contain a statement that
in case default continues for the further space of two calendar months
from the date of service of the notice, the mortgaged lands may be
sold under the provisions of the Land Titles Act.

(3) The said notice may also require the mortgagor or incum-
brancer, and the other persons to whom the same is directed, to pay
within a time to be specified in such notice the money then due or
owing on such mortgage or incumbrance, or to observe the covenants
therein expressed or implied, as the case may be.

(4) Such notice may declare the intention of the mortgagee or
incumbrancee to make an application for foreclosure as hereinafter
provided, in case a sale of the lands by public auction shall prove
abortive, and in case default in payment of the principal or interest
secured by the mortgage or incumbrance shall be continued for six
months after the time for payment mentioned in the mortgage or
incumbrance.

(5) A copy of the notice shall be served upon the mortgagor or
incumbrancer, and upon every person appearing by the records of the
proper land titles office at the time of filing such notice to have any
right, estate, or interest to or in the land charged subsequent to the
mortgage or incumbrance, and within two months after such service
upon all such persons a copy shall be filed with the registrar of the
proper land titles office.

(6) After such default in payment, or in the observance of any
covenant as aforesaid, continuing for the further space of two calendar
months from the date when service upon all such parties has been
completed, such mortgagee or incumbrancee is hereby authorized and
empowered to sell the land so mortgaged or incumbered, or any part
thereof, subject to the rights of any persons having any estate, right or
interest therein having priority to the mortgage or incumbrance, in
such manner as the registrar of land titles for the land registration dis-
trict in which the mortgage or incumbrance is registered may direct,
and either altogether or in lots, by public auction or private contract,
or by such modes of sale and subject to such terms and conditions as
the registrar may prescribe, and such sale shall be confirmed by an
order under the hand of the registrar.

C(7): Sas. 1917, s. 110 (1, 2), ante p. 624.]

(8) Such purchase money shall be paid into the Supreme Court in
the judicial district in which the land is situate, and there shall be
paid thereout upon the request of the mortgagee —
(a) The costs as taxed by the registrar;

(6) The moneys due or owing to the mortgagee or incum-
brancee and proved before the registrar;
and when such payments are duly made, the balance (if any) remain-
ing in court shall be paid out on order of a judge in payment of the
subsequent mortgage (sic), incumbrances or liens (if any), in order of
their priority, and the balance (if any) to the owner or beneficial
owner as his interest may appear.

650 APPENDIX OF STATUTES.

[(9): Sas. 1917, s. Ill, ante p. 625.]

(10) Whenever default has been made in payment of the principal
or interest secured by a mortgage or incumbrance, and such default
shall be continued for six months after the time for payment men-
tioned in the mortgage or incumbrance, the mortgagee or incum-
brancee may, if he has given notice of his intention so to do as afore-
said, make an application in writing to the registrar of land titles for
the registration district in which the mortgage or incumbrance is reg-
istered for an order for foreclosure.

(11) Such application for foreclosure shall state that such default
in payment as aforesaid has been made and has continued for the
period aforesaid; that the land mortgaged or incumbered has been
offered for sale at public auction under the provisions of this Act; that
the amount of the highest bid was not equal to nor greater than the
reserve bid fixed by the registrar; and that such notice as aforesaid
declared the intention of the mortgagee or incumbrancee to make an
application for foreclosure in case such sale proved abortive; and
such application shall be accompanied by such proof of the matters
stated by the applicant, and by such other evidence, as the said reg-
istrar may require.

(12) In case the notice as aforesaid has not declared the inten-
tion of the mortgagee or incumbrancee to make an application for fore-
closure, another notice may be given declaring such intention, if
default in payment has continued for six months after the time for
payment mentioned in the mortgage or incumbrance, and in case a
sale of the lands has proved abortive, and when such subsequent
notice has been given the application for foreclosure as herein pro-
vided may be proceeded with.

(13) Such subsequent notice shall be filed and served in the same
manner and upon the same persons as provided for in sub-section 5
hereof.

(14) Unless the registrar shall see fit to order otherwise the
notice, whether of intention to sell or to apply for a foreclosure order,
shall be served personally, but in case any person required to be served
cannot after due diligence be found, the registrar may direct service
of such notice by leaving the same on the mortgaged lands, or by
mailing the same in a sealed envelope by registered post directed to
him or them at his or their last known address, or in such other
manner as the registrar may direct; and in case any person required
to be served is deceased and such person has no legal representative,
such notice shall be effectively served if served upon the public admin-
istrator for the district in which the lands subject to the mortgage or
incumbrance are situate.

(15) On an application for foreclosure the registrar may issue to
such applicant an order nisi, in which he may direct that the appli-
cant cause the land to be advertised for private sale, and directing that
a final order may be made unless within the time provided for in such
order nisi, which shall be not less than one month from the date
thereof, a sufficient amount of money has been paid by or on behalf
of the owner, mortgagor, or incumbrance (sic) to satisfy the princi-
pal, interest and costs of the proceedings, or a sufficient amount of

ALBERTA. 651

money has been realized from the sale of such land to satisfy the
reserve bid: provided that the registrar may confirm a sale at any
time before the final order of foreclosure has been granted, and may
approve of any sale at an amount less than the reserve bid.

(16, 16A). Every order of foreclosure, and every order confirming
a sale under the hand of the registrar, shall contain a clause that pos-
session of the lands mentioned therein shall be given to the mortgagee
or purchaser forthwith [sheriff to enforce order, and costs to be paid by
person dispossessed.]

(17) Where a mortgagor is entitled to redeem, he shall on pay-
ment have the power to require the mortgagee instead of giving a dis-
charge of the mortgage to transfer the mortgage to any third party as
the mortgagor directs, and the mortgagee shall be bound to transfer
such mortgage to such third party.

[(18) A judge or a master may by order stay any proceeding here-
under, and cancel such stay.]

[19, 20. Service of notices.]

62B. The effect of an order for foreclosure of a mortgage or
incumbrance, heretofore or hereafter made by any court or judge or by
any registrar, shall be to vest the title of the land affected thereby in
the mortgagee or incumbrancee, free from all right and equity of
redemption on the part of the owner, mortgagor or incumbrancer, or
any person claiming through or under him subsequently to the mort-
gage or incumbrance, and shall from and after the date of the passing
of this section [1919] operate as full satisfaction of the debt secured by
such mortgage or incumbrance. Such mortgagee or incumbrancee
shall be deemed a transferee of the land, and become the owner thereof,
and be entitled to receive a certificate of title for the same.

63. Upon the production of any mortgage or incumbrance, having
endorsed thereon or attached thereto a receipt or acknowledgment in
the form I in the schedule to this Act, signed by the mortgagee or
incumbrancee or, where it is stated in the mortgage or incumbrance
that the money has been advanced on joint account, by the surviving
mortgagee or incumbrancee. and proved by the affidavit of an attesting
witness, discharging the whole 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 or part of the money due on any
mortgage or incumbrance and the production to the registrar of a
certificate signed by the judge to that effect, or upon the production of
a receipt or acknowledgment in the said form I, accompanied by evi-
dence satisfactory to the registrar of the loss or destruction of the
mortgage or incumbrance, the registrar shall thereupon make an
entry on the certificate of title noting that such mortgage or incum-
brance is discharged wholly or partially, or that part of the land is
discharged as aforesaid, as the case may require; and upon such entry
being so made, the land or the estate or interest in the land or the
portion of the land mentioned or referred to in such endorsement as
aforesaid shall cease to be subject to or liable for such principal sum
or annuity or, as the case may be, for the part thereof mentioned in
such entry or discharge.

652 APPENDIX OF STATUTES.

64. Upon proof of the death of the annuitant, or of the occurrence
of the event or circumstance upon which in accordance with the pro-
visions of any incumbrance the annuity or sum of money thereby
secured ceases to be payable, and upon proof that all arrears of the
said annuity and interest or money have been paid, satisfied or dis-
charged, the registrar shall, upon the order of a judge, make a
memorandum upon the certificate of title in the register that such
annuity or sum of money is satisfied and discharged, and shall cancel
such instrument; and upon such memorandum being made the land
shall cease to be subject to or liable for such annuity or sum of money,
and the registrar shall in any or either such case as aforesaid endorse
on the duplicate certificate of title a similar memorandum whenever
such duplicate certificate of title is presented to him for that purpose.

[65: Sas. 1917, as. 120, 121, ante p. 627. Omit rererence to mort-
gagee being " deceased," and substitute " a chartered bank " for " the
provincial treasurer.""!

[66: Sas. 1917, ss. 122 (1-3), 123, ante p. 627.]

[67, 68: Sas. 1917, s. 124, ante p. 628.]

[69-70: Sas. 1917, ss. 104, 105, ante p. 623.]

71. In every case where land is subject to a mortgage or incum-
brance signed by the owner, the duplicate certificate of title shall be
deposited with the registrar, who shall retain the same on behalf of
all persons interested in the land mentioned in such certificate. The
registrar shall if desired furnish to the owner of such mortgage or
incumbrance a certificate of charge in form GG- hereto; and before
any instrument dealing with or discharging the said mortgage or
incumbrance is registered, except in the case provided for by section
65 of this Act. said certificate of charge shall be delivered up to the
registrar to be cancelled: provided however that the registrar may
dispense with such production upon satisfactory evidence being pro-
duced of the loss or destruction of any such certificate.

Powers of attorney-.

72. The owner of any land may authorize and appoint any person
to act for him or on his behalf with respect to the transfer or other
dealing with such land, or with any part thereof, in accordance with
the provisions of this Act, by executing a power of attorney in the
form T in the schedule to this Act, or as near thereto as circumstances
permit, or in any form heretofore in use for the like purpose, iu
which the land is not specifically mentioned and described but is men-
tioned and referred to in general terms, any !of which forms of power
of attorney the registrar shall register, and if the land referred to in
any form of power of attorney is specifically and properly described,
the registrar shall make a memorandum upon the certificate of title,
and upon the duplicate certificate, of the particulars therein contained,
and of the time of its registration; and until such power of attorney
in which the land referred to is so specifically described is revoked in
the manner provided by the next following section, the right of the
owner to transfer or to otherwise deal with the land shall be sus-
pended: provided that the execution or registration of a general power

ALBERTA. 653

of attorney shall not in any way affect the right of the owner to trans-
fer or otherwise deal with his land.

73. Any such power of attorney may be revoked by a revocation
in the form U in the schedule to this Act; and after the registration of
a revocation of a power of attorney the registrar shall not register any
transfer or other instrument made under such power of attorney, unless
such transfer or other instrument was executed prior to the revocation
of the power of attorney.

74. (1) Wherever the owner of any land for whicn a certificate of
title has been granted dies, such land shall, subject to the provisions
of this Act, vest in the personal representative of the deceased owner.

(2) Such personal representative shall, before dealing with such
land, make application in writing (executed by himself or his solici-
tor) to the registrar to be registered as owner, and shall produce to
and leave with the registrar the duplicate certificate of title for the
lands in respect of which the application is made, and probate of the
will of the deceased owner, or letters of administration, or the order of
court authorizing him to administer the estate of the deceased owner,
or a notarial copy of the will of the deceased made in notarial or
authentic form, executed within the province of Quebec, the original
of which is filed in any notarial office, or a duly certified copy of the
said probate, letters of administration or -order, as the case may be;
for the purpose of this Act the probate of a will granted by the proper
court of any province of the Dominion of Canada, or of the United
Kingdom of Great Britain and Ireland, or an exemplification thereof,

, shall be sufficient, if the same shall have been re-sealed with the seal
>of the court in the province of Alberta having jurisdiction in such
matters.

(2A) Such personal representative shall also produce to and leave
with the registrar a certificate of the provincial treasurer to the effect
that all succession duties in respect of the said land (if any) have been
paid, or security given for the payment thereof.

(3) The registrar shall thereupon enter upon the said certificate
of title and vipon the duplicate thereof a memorial of the application
for transmission, the date of the probate, letters of administration,
order of the court or notarial will, the date and hour of the produc-
tion to him of the same, and such other particulars as he may deem
necessary, and shall also note the fact of registration by the usual
memorandum under his hand on the said probate, letters of adminis-
tration, order or notarial will.

(4) Upon such memorandum being made the executor or admin-
istrator, as the case may be, shall be deemed to be the owner of the
land, and the registrar shall cancel the said certificate of title in the
name of the deceased owner, and grant to the executor or adminis-
trator aforesaid as such a new certificate of title, and issue to him a
duplicate certificate.

(5) The title of the executor or administrator to the lands shall
relate back, and take effect from the date of the death of the deceased
owner.

(6) If the certificate of title for the land has not bee.n granted to
the deceased owner, the personal representatives before being entitled

654 APPENDIX OF STATUTES.

to be registered under this section shall bring the land under this Act
in the ordinary way, but no certificate of title shall be granted in
respect thereof, unless such personal representative shall produce to
and leave with the registrar a certificate of the provincial treasurer
[&c, sub-s. 2A, swpra.J

75. (1) Whenever any mortgage, incumbrance or lease affecting
land for which a certificate of title has been granted is transmitted in
consequence of the will or intestacy of the owner thereof, the probate
of the will [&c., s. 74 (2), supraj accompanied by an application in
writing from the executor or administrator, or such other person as
aforesaid, claiming to be registered as owner in respect of such estate
or interest, together with a certificate of the provincial treasurer [&c,
s. 74 (2A), supra"! shall be produced to and left with the registrar,
who shall thereupon make a memorandum upon the certificate of title
and upon the duplicate thereof of the date of the will and of the pro-
bate, or of the letters of administration or order of the court as afore-
said, the date, hour and minute of the production of the same to him,
with such other particulars as he deems necessary.

(2) Upon such memorandum being made, the executor or admin-
istrator, or such other person, as the case may be. shall be deemed to
be the owner of the mortgage, incumbrance or lease; and the registrar
shall note the fact of the registration by memorandum under his hand
on the letters of administration, probate or order as aforesaid.

76. [(1): Sas. 1917, s. 146 (1), ante p. 632, omitting reference to
" follovnng sub-section."!

(2) Any person beneficially interested in any such land may apply
to a court or judge having jurisdiction, to have the same taken out of
the hands of the trustee having charge by law of such land, and trans-
ferred to some other person or persons, and the court or judge upon
reasonable cause being shewn shall name some suitable person or
persons as owner of the land; and upon the person or persons so named
accepting the ownership and giving approved security for the due ful-
filment of the trusts, the court or a judge may order the registrar to
cancel the certificate of title to the trustee, and to grant a new certifi-
cate of title to the person or persons so named.

(3) The registrar, upon the production of the order, shall cancel
the certificate of title to the trustee, after making thereon and upon
the duplicate thereof a memorandum of the appointment by order of
the court or judge of such person or persons as owners, and shall
grant a new certificate of title to such new trustee and issue to him a
duplicate certificate of title.

Executions.

77. (1) [Sas. 1917, s. 149 (1), ante p. 6333; and uP<>n and from
the receipt by the registrar of such copy, all lands and interests in
lands, whether such interests be legal or equitable, and any interest
of an unpaid vendor of land, shall be bound by such execution.

[Sas. 1917, s. 149 (3, 4), ante p. 633]: provided ttiat every writ
or renewal thereof shall cease to bind or affect land at the expiration of
six years from the date of the receipt thereof by the registrar of the

ALBERTA. 355

district in which the land is situated, unless before the expiration of
such period of six years a renewal of such writ is filed with the regis-
trar in the same manner as the original is required to be filed with
him,

(2) The registrar shall keep a book in convenient form in which
shall be entered, according to the dates when respectively received, a
record of all copies of writs received. . . .

(3) A writ of execution transmitted to any registrar by a sheriff
at any time during the currency of such writ shall be effectual as
hereinbefore provided with respect to lands belonging to the execution
debtor, situate anywhere within the land registration district, whether
or not such lands are within the judicial district of the sheriff to which
(sic) the said writ is directed, and whether or not such judicial district
is within the land registration district of the registrar to which (sic)
a copy of such writ has been transmitted.

[4, 5, 6. Renewal of writs, and endorsement of full name, etc., of
debtor on writ]

[78: Sas. 1917, s. 150, ante p. 634.]

Sheriff's sales.
£79-81: Sas. 1917, ss. 151-153, ante p. 634.]

Sale for taxes.

82. When any land for which a certificate of title has been granted
is sold for taxes, the purchaser may at any time after the sale lodge a
caveat against the transfer of the land; and upon the completion of
the time allowed [&c, Sas. 1917, s. 154, ante p. 635.]

[83: Sas. 1917, s. 202, ante p. 641.]

[83 A: M. 1913, s. 129, ante p. 594.]

Caveats.

84. Any person claiming to be interested under any will, settle-
ment or trust deed, or any instrument of transfer or transmission, or
under an unregistered instrument, or under an execution where the
execution creditor seeks to affect land in which the execution debtor
is interested beneficially, but the title to which is registered in the
name of some other person, or otherwise howsoever in any land, mort-
gage or incumbrance, may cause to be filed on his behalf with the reg-
istrar a caveat in form W in the schedule to this Act, against the reg-
istration of any person as transferee or owner of, or of any instru-
ment affecting, such estate or interest, unless such instrument be
expressed to be subject to the claim of the caveator.

85. [(1): M. 1913, s. 141 (1), ante p. 596.]

(2) If in any caveat presented for registration a caveator claims
to be interested under an unregistered mortgage, he shall either
attach to such caveat a copy of such mortgage, or state in such caveat
the amount for which the mortgage was given. The fees payable for

056 APPENDIX OF STATUTES.

registration of such caveat shall be the same as if the mortgage under
which the caveator claims to be interested were being registered.

[86: Sas. 1917, s. 133, ante p. 630. J

[87: B. C. 1911, s. 65, ante p. 564.]

88. The caveator, or in case the caveat is signed by his attorney
or agent such attorney or agent, may by notice in writing to the reg-
istrar withdraw his caveat at any time, and the registrar shall forth-
with give notice in writing of such withdrawal by mail or otherwise
to the caveator.

89. Except in case of a caveat lodged by the registrar as herein-
after provided, every caveat lodged against any land, mortgage or
incumbrance shall be deemed to have lapsed after the expiration of
sixty days after notice, proved to the satisfaction of tne registrar, has
been either served as process is usually served or sent by registered
mail in the form Y in the schedule to this Act or to the like effect to
the caveator, at or to the address stated in the caveat, to take proceed-
ings in court on his caveat, unless before the expiration of the said
period of sixty days the caveator takes proceedings in court by originat-
ing summons ... or otherwise to substantiate the title, estate,
interest or lien claimed by his caveat, and a judge's order in such pro-
ceedings has been filed with the registrar continuing such caveat: pro-
vided that the court or judge may upon an ex parte application shorten
the said period of sixty days to such period as he shall specify in such
order, and a copy of such order shall be served or mailed with the
notice in this section referred to.

[90: M. 1913, s. 150, ante p. 596.]
[91: M. 1913, s. 146, ante p. 596.]

92. In any proceedings in respect of a caveat the court or judge
may order that the caveator give such undertaking or security as such
court or judge may consider sufficient, to indemnify every person
against any damage that may be sustained by reason of any disposi-
tion of the property being delayed, or to answer the costs of the
caveatee, and may direct the registrar to delay registering any instru-
ment dealing with the land, mortgage or incumbrance during such
time as the order of such court or judge provides, or may direct the
caveator to take further proceedings by action or otherwise upon his
caveat, or may make such other order as may be just.

93. In any proceedings taken in consequence of the filing of a
caveat, if it be made to appear to the court or judge that the caveator,
or person on whose behalf the caveat has been filed by the registrar as
hereinafter provided, claims an interest in the land, mortgage or
incumbrance by virtue of any contract in writing for the sale and pur-
chase of such land, mortgage, or incumbrance, signed by the vendor
thereof or by his lawfully authorized agent, or by virtue of an assign-
ment of such contract, duly attested in the manner provided for in
sections 102 and 103 of this Act, and there has been no default under
the terms of such contract, or if any default has been made that such
default has been cured before the return of the application to the court
or judge, then the court or judge may, and unless it otherwise appears
to be a case in which the caveat should be removed shall, refuse to
order the removal of such caveat.

ALBERTA. 05?

[94: Sas. 1917, s. 139, ante p. 631.]
[95: B. C. 1911, s. 67A, ante p. 564.J
[96-98: M. 1913, ss. 149, 151, 153, ante p. 596.]
[99: Sas. 1917, s. 138 (1), ante p. 631.]
[100: Sas. 1917, s. 131, ante p. 630.]

101. (1) Any contract in writing for the sale and purchase of any
land, mortgage or incumbrance shall, notwithstanding anything to the
contrary therein contained, be assignable, and any assignment of any
such contract shall operate according to its terms to transfer to the
assignee therein mentioned all the right, title and interest of the
assignor both at law and in equity, subject to the conditions and
stipulations in such assignment contained: provided however that
nothing herein contained shall aiiect any rights at law or in equity of
the original vendor or owner of the land, mortgage or incumbrance
until notice in writing of such assignment has been either sent to him
by registered mail or served upon him in the way process is usually
served; and the notice mentioned in section 86 hereof shall be deemed
to be such notice. . . .

Attestation of instruments.

102. [(1) : Sas. 1917, s. 56, ante p. 609.]

(2) Any document executed by a corporation, notwithstanding
anything to the contrary in the Act, statute, charter or memorandum
of association incorporating such corporation, shall for the purposes of
this Act be deemed to be sufficiently executed, if sealed with the cor-
porate seal of such corporation and countersigned by at least one
officer of the corporation.

[103. Sas. 1917, s. 57 (1), ante p. 610]: provided that the court
or a judge may, upon being satisfied of the due execution of any in-
strument, whether such instrument has been executed within or with-
out the limits of the province, authorize the registration of the same,
notwithstanding that the proof of such execution may be defective
under the provisions of this or of the next preceding section hereof.

Remedial proceedings. Ejectment.

[104: Sas. 1917, s. 159, ante p. 637. Omit cl. (g) in sub-s. 1.]
105. After a certificate of title has been granted therefor, any
person deprived of any land in consequence of fraud, or by the reg-
istration of any other person as owner of such land, or in consequence
of any fraud, error, omission, or misdescription in any certificate of
title or in any memorandum thereon or upon the duplicate thereof,
may in any case in which the land has been included in two or more
grants from the Crown bring and prosecute an action at law for the
recovery of damages against such person as a judge appoints, and in
any other case against the person upon whose application the errone-
ous registration was made, or who acquired title to the land in ques-
tion through such fraud, error, omission or misdescription: provided
always that, except in the case of fraud or error occasioned by any
omission, misrepresentation or misdescription in the application of

R.T.L. — 42

658 APPENDIX OF STATUTES.

such person to be registered as owner of such land, or in any instru-
ment executed by him, such person shall, upon a transfer of such land
bona fide for value, cease to be liable for the payment of any damages
which but for the transfer might have been recovered from him under
the provisions hereinbefore contained, and such damages with costs
may in such last mentioned case be recovered out of the assurance
fund hereinafter provided for, by action against the registrar as nomi-
nal defendant.

[105A. Any person bona fide taking a mortgage, incumbrance, or
transfer which is void against a wife under the Dower Act may recover
amount of loss from the assurance fund. Provincial treasurer may
recover from a transferor, mortgagor, or incumbrancer all moneys paid
out of assurance fund, and his right of action shall not be subject to
any time limit.]

106. Nothing in this Act contained shall be so interpreted as to
leave subject to action for recovery of damages as aforesaid, or to
action of ejectment, or to deprivation of land in respect to which 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 trans-
feror or mortgagor has been registered as owner through fraud or
error, or has derived title from or through a person registered as
owner through fraud or error, except in the case of misdescription as
mentioned in section 104.

[107: B. C. 1911, s. 125, ante p. 573.]

108. Any person sustaining loss or damage through any omission,
mistake or misfeasance of the inspector of land titles offices, or a reg-
istrar, or any of his officers or clerks, in the execution of their respec-
tive duties under the provisions of this Act, and any person deprived
of any land by the registration of any other person as owner thereof,
or by any error, omission or misdescription in any certificate of title,
or in any memorandum upon the same, or upon the duplicate certificate
thereof, and who by the provisions of this Act is barred from bringing
an action of ejectment or other action for the recovery of the land,
may in any case in which remedy by action for recovery of damages
hereinbefore provided is barred, bring an action against the registrar
as nominal defendant for recovery of damages; and if the plaintiff
recovers final judgment against such nominal defendant, the judge
before whom such action is tried shall certify to the fact of such judg-
ment and the amount of the damages and costs recovered, and the
provincial treasurer shall pay the amount thereof to the person entitled
on production of an exemplification or certified copy of the judgment
rendered and shall charge the same to the account of the said assur-
ance fund: provided always that notice in writing of every such action,
and the cause thereof, shall be served upon the attorney-general, and
also upon the registrar, at least three calendar months before the
commencement of such action.

[109: N. Z. 1915, s. 189, ante p. 505.]

110. No action for recovery of damages sustained through depri-
vation of land shall lie or be sustained against the registrar, or against
the assurance fund aforesaid, unless the same is commenced within the
period of six years from the date of such deprivation; provided never-
theless that any person under the disability of infancy, lunacy or
unsoundness of mind may bring the action within six years from the

ALBERTA. 659

date on which the disability ceased; and the plaintiff in the action
within six years from the date on which such disability ceased, and
the plaintiff in any such action at whatever time it is brought, and the
plaintiff in any action for the recovery of land, shall be nonsuited in
any case in which it appears to the satisfaction of the judge before
whom such action is tried that the plaintiff, or the person through or
under whom he claims title, had notice by personal service or other-
wise was aware of such delay and wilfully or collusively omitted to
lodge a caveat, or allowed the caveat to lapse.

(2)i The registrar before registering any transfer, lease, mort-
gage or incumbrance, when no consent is produced as required by the
Dower Act, shall require an affidavit in form JJ in the schedule to this
Act of the transferor, lessor, mortgagor or incumbrancer, that the land
described in such instrument is not subject to the provisions of the
Dower Act, or that he has no wife, supported by such other evidence
by affidavit or otherwise as the registrar may prescribe: provided that
if the said instrument is executed under a power of attorney, the party
so executing the same may if he is acquainted with the facts make
the said affidavit.

[Ill: V. 1915, s. 240, ante p. 453.]

[111A: Sas. 1917, s. 168, ante p. 637.]

[114. (1): V. 1915, s. 80, ante p. 414.

(2): B. C. 1911, s. 170A, ante p. 577, omitting reference to
" thirty days' notice."]
[115: V. 1915, s. 81, ante p. 414.]
[116: M. 1913, s. 58, ante p. 584, omitting proviso.]

Assurance fund and fees.

120. The assurance fund herein provided for shall be formed by
the provincial treasurer from the amounts paid to and received by
him for that purpose by and from the registrars, as hereinbefore pro-
vided. . . .

[121: Sas. 1917, s. 170, clauses (o-c) ante p. 638.]

[122: Sas. 1917, s. 67, ante p. 612, adding: "Provided that no
one certificate issued to any person under this section shall include or
refer to a greater area than 640 acres of land."]

[123: Sas. 1917, s. 69, ante p. 613.]

124. (1) Any owner subdividing land for which a certificate of
title has been granted, for the purpose of selling or conveying the
same in allotments shall deposit with the registrar a plan in triplicate.

[(3): On. 1914, s. 110 (1), ante p. 541.]

(6) No plan of subdivision of any incumbered land shall be reg-
istered, unless the same be approved and signed by the incumbrancee
or incumbrancees, nor unless it is accompanied by a discharge of all
incumbrances affecting the lands required to be reserved for public

i This sub-section is introduced by s. 40 (7) of the St. L. Am. Act
1917, and appears to be misplaced; it would be more appropriately
added to a section like s. 50 (ante p. 647).

660 APPENDIX OF STATUTES.

purposes under the Public Works Act and the regulations made there-
under.

(7) No lots shall be sold under agreement for sale or otherwise
according to any townsite or subdivision plan until after the same has
been duly registered . . . this section shall not apply to any plan
now in existence and approved by the minister.

(8) For every violation of the preceding sub-section the offender
shall be guilty of an offence, and on summary conviction shall be liable
to a fine of not less than $50 and not more than $100 and costs for each
lot sold under agreement for sale or otherwise.

(8A) No party to any sale or agreement for sale shall be entitled
in any civil action or proceeding to rely upon or plead the provisions
of sub-section 7 of this section, if the plan of subdivision by reference
to which such sale or agreement for sale was made was registered
when such action or proceeding was commenced, or if pursuant to the
arrangements between the parties it was the duty of the party who
seeks to rely upon or plead the provisions of such sub-section to him-
self register such plan of subdivision, or cause the same to be reg-
istered.

(9) Upon the filing of an original or amended or substituted plan
of subdivision, the lands finally shewn to be reserved for public pur-
poses, as required by the Public Works Act and the regulations made
thereunder, shall vest in the Crown in the right of the province, and
the registrar shall cancel the areas so shewn on such plan from the
original and duplicate certificates of title, and he shall issue a certifi-
cate of title for such lands to the minister of public works represent-
ing his Majesty in right of the province, and forward the duplicate
thereof to the said minister.

(10) Any certificate so forwarded to the minister of public works
may with his written consent be cancelled or amended, or a new
certificate substituted therefor, if the plan of subdivision under which
it was issued is withdrawn, amended or displaced.

Road allowances.

126. (1) Upon the filing in the land titles office of the plans of
surveys of any road, as provided for in the Public Works Act, the lands
shewn on such plans, so far as the same are not Dominion lands, shall
vest in the Crown in the right of the province, subject to the right of
any person who has acquired any interest in the said lands, so far as
the same are taken for any road allowance, diversion or new road, to
compensation for such interest.

(2) The Crown shall not be entitled to any mines or minerals,
whether solid, liquid or gaseous, which may be found to exist within,
upon or under any land vested in the Crown under the provisions of
this section, unless the same are expressly purchased, and the title to
any such mines or minerals shall in no wise be affected by the filing
of any plans of survey as provided herein.

[131: V. 1915, s. 176, ante p. 439.]
[132: V. 1915, s. 270, ante p. 460.]

ALBERTA. 661

135. Except in the case of fraud, no person contracting or deal-
ing with, or taking or proposing to take a transfer, mortgage, incum-
brance or lease from, the owner of any land for which a certificate of
title has been granted, shall be bound or concerned [&c., Sas. 1917, s.
194, ante p. 639.]

136. In any suit for specific performance brought by an owner of
any land for which a certificate of title has been granted, against a
person who has contracted to purchase the land, not having notice of
any fraud or other circumstances which according to this Act would
affect the right of the transferor, the duplicate certificate of title of
the owner shall be evidence that the owner has a good and valid title
to the land for the estate or interest therein mentioned or described.

£137, 138: Sas. 1917, ss. 195, 196, ante p. 639.]
[139: Sas. 1917, s. 205, ante p. 641.]

[143: V. 1915, s. 243, ante p. 454.]

[145: Sas. 1917, s. 209, ante p. 641.]

Schedule.
[Forms.]

062 APPENDIX OF STATUTES.

NORTH-WEST TERRITORIES.

(Dominion of Canada).

Land Titles Act (R. S. 1906, c. 110).

Note. — The registration statutes of the North-West Territories are
Acts passed by the Dominion legislature. The Act of 1906 (amended
slightly) is for the most part substantially identical with the Alberta
1906 Act as originally enacted; the order in which the sections stand
is however different, and the sections of the Canada Act are more fre-
quently broken up into sub-sections, the Canada Act in this respect hav-
ing apparently served as the model for the present Saskatchewan 1917
Act. The most important point on which the Canada Act differs from
that of Alberta (as now amended) relates to the remedies of a mort-
gagee; no statutory power of sale or right of foreclosure is conferred,
and recourse must be had to the courts to enable a mortgagee to
enforce his security. The sections and parts of sections here printed
or referred to shew the material points as to which the Canada and
Alberta statutes differ; some of these (ss. 4-16, and 79) relate to land
in general, and are identical with enactments contained in an Alberta
general statute — An Act respecting the Transfer and Descent of Land
(1906, c. 19).

Descent of land.

5. Land in the Territories shall descend to the personal represen-
tatives of the deceased owner thereof in the same manner as personal
estate, and be dealt with and distributed as personal estate.

6. Except such devises as are made by the testator to his personal
representative, either in his representative capacity or for his own
use, no devise shall be valid or effectual as against the personal repre-
sentative of the testator, until the land affected thereby is transferred
to the devisee thereof by the personal representative of the devisor.

7. (1) Any devise or limitation which heretofore would have
created an estate tail shall transfer the absolute ownership, or the
greatest estate that the devisor or transferor had in the land.

[(2) : Sas. 1917, s. 198, ante p. 640.]

8. Illegitimate children shall inherit from the mother as if they
were legitimate, and through the mother, if dead, any land which she
would if living have taken by purchase, gift, devise, or descent from
any other person.

9. When an illegitimate child dies intestate without issue, the
mother of such child shall inherit any land of which he was the owner
at the time of his death.

10. If a wife has left her husband and has lived in adultery after
leaving him, she shall take no part of the land of her husband.

11. If a husband has left his wife and has lived in adultery after
leaving her, he shall take no part of her land.

12. No widow whose husband died on or after the 1st day of
January 1887 shall be entitled to dower in the land of her deceased

NORTH-WEST TERRITORIES. 663

husband; but she shall have the same right in such land as if it were
personal property.

13. No husband whose wife died on or after the 1st day of Janu-
ary 1887 shall be entitled to any estate by the curtesy in the land of
his deceased wife; but he shall have the same right therein as a wife
has in the personal property of her deceased husband.

Married women.

£14, 15: Sas. 1917, ss. 200, 201, ante p. 640.]

16. A married woman shall, in respect of land acquired by her on
or after the 1st day of January, 1887, have all the rights and be
subject to all the liabilities of a feme sole, and may in all respects
deal with land as though she were unmarried.

69. In every instrument transferring land for which a certificate
of title has been granted subject to mortgage or incumbrance, there
shall be implied the covenant by the transferee that the transferee will
pay the principal money, interest [&c, M. 1913, s. 97, ante p. 588.]

70. After a certificate of title has been granted for any land, no
instrument until registered under this Act shall, as against any bona
fide transferee of the land under this Act, be effectual to pass any
estate or interest in such land, except a leasehold interest not exceed-
ing three years, or to render such land liable as security for the pay-
ment of money.

79. [(1) : M. 1913, s. 88, ante p. 587.]

(2) The introduction of any words of limitation into any transfer
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.

96. (2) [mortgages before issue of Crown grant: evidence of
right to mortgage may be required.]

97. (1) A mortgagor shall be entitled to the possession of the
duplicate certificate after the registrar has entered thereon a memor-
andum of the mortgage, but upon the sale under the mortgage or fore-
closure under this Act, he shall forthwith deliver it up to the registrar
to be dealt with under this Act.

(2) The registrar shall if desired furnish to the mortgagee or his
assignee a certified copy of the certificate of title.

99. Proceedings to enforce payment of moneys secured by mort-
gage or incumbrance, or to enforce the observance of the covenants,
agreements, stipulations or conditions contained in any mortgage or
incumbrance, or for the sale of the lands mortgaged or incumbered, or
to foreclose the estate, interest or claim of any person in or upon
the land mortgaged or incumbered, as also proceedings to redeem or
discharge any land from any such mortgage or incumbrance, shall be
had and taken in the North-West Territories before a stipendiary
magistrate, and in the Yukon Territory in the Territorial Court. . . .

664 APPENDIX OF STATUTES.

111. [powers of attorney: official recognition of power in general
use, or registered copies.]

123A [1908]. (1) The bishop of any church, or any tiustees for
any church or any congregation of any church, holding land for the
purposes of such church or congregation shall respectively, with regard
to such land and any dealings therewith, be deemed to be a body cor-
porate and politic; and land so held shall devolve respectively upon
the successor in office of such bishop, or upon the successors in office
of such trustees, duly appointed in manner by law or by such church
or congregation prescribed.

(2) The facts necessary to shew due appointment of such succes-
sors in office may, for purposes of registration, be proved by statutory
declaration.

(3) Such bishop or trustees, and their successors in office, shall
hold such land upon the trusts and for the purposes to which it is
legally applicable; but for the purposes of any registered dealings
with such land he or they, as the case may be, shall be deemed to be
the absolute and beneficial owner or owners thereof.

Executions.

124. [(1): Sas. 1917, s. 149 (1), ante p. 633.]

(2) No land shall be bound by any such writ until the receipt, by
the registrar of the registration district in which the land is situated,
of a copy thereof.

[(3-5): Sas. 1917, s. 149 (3-5), ante p. 633.]

136. Unless proper proceedings in a court of competent jurisdic-
tion have been taken to establish the caveator's title to the estate or
interest specified in the caveat, and an injunction or order has been
granted restraining the registrar from granting a certificate >of title
or otherwise dealing with the land, a caveat shall lapse after the
expiration of twenty-one days from the service on the caveator or at
his address for service, proved to the satisfaction of the registrar, of
a notice that such caveat shall lapse; or, if no such notice is mean-
while served, then such caveat shall lapse after the expiration of
three months from the receipt by the registrar of such caveat.

143. [only differs from Al. 1906, s. 105, in omitting the distinc-
tion between the case where " land has been included in two or more
grants from the Crown " and " any other case," the action in all cases
lying " against the person upon whose application," &c]

166 . . . 182. [further express powers conferred upon "the
judge " of prohibiting " improper dealings."]

JAMAICA. 665

JAMAICA.

Registration of Titles Law 1888

(Law 21 of 1888).

Note. — The principal statute is modelled on the Victorian Act of
1866. which was amended and reproduced in the Act of 1890 (printed
in Aust. Torr. Syst. 497 et seq.), this again being amended and repro-
duced in the present Act of 1915, partly printed ante p. 402, et seq.
The result is that a considerable number of sections in V. 1915 do not
appear in the Jamaica statute. Amongst these are the enactments
relating to sub-leases and the sub-lease register (ss. 139-144), applica-
tions under title acquired by possession since initial registration
(ss. 87-104), demand mortgages (s. 147), many provisions relating to
mortgages (ss. 166-174), vesting orders made by commissioner of titles
(ss. 227. 228), search certificates and stay orders (ss. 196-200), survey
and boundary provisions (ss. 201-214), some provisions as to indem-
nity for loss (ss. 251-253), statutory conditions of sale (s. 278). The
Jamaica statutes being thus modelled closely on the Victorian, with
these omissions, only such sections are here printed as differ materi-
ally from the present Victorian enactments. In printing the principal
statute of 1888, amendments have been incorporated. Many amend-
ments (some of small importance) have been made by the statutes of
1888 (Law 31) and 1889 (Law 20), and it has not been thought neces-
sary always to indicate these.

[Preamble: V. 1890, Aust. Torr. Syst. 497.J

[1: Tas. 1862, s. 1, Aust. Torr. Syst. 418.J

J. 1889, s. 36. A married woman, who is registered as a " pro-
prietor" within the meaning of the said Law [1888], shall for all the
purposes of the said Law be deemed to be a feme sole.

2. In the construction of this Law, except when the subject matter
or context, or the other provisions hereof, require a different con-
struction:—

The word " patent " shall mean the deed of grant from the
Crown of any unpatented lands in Jamaica, or any lands
which having once been patented have been adjudged for-
feited or escheated to the Crown, or of any lands sold
pursuant to the provisions of section 87 of Law 43 of
1887.

Procedure in bringing Land under the operation of this Law.

15. Land may be brought under the operation of this Law by the
registrar registering the title of some person thereto as the proprietor
thereof, in manner hereinafter provided.

16. The title of any person to land brought under the operation
of this Law shall be registered either as an absolute or as a qualified
title.

17. A person registered under this Law as proprietor of any land
with an absolute title shall be entitled to hold such land in fee simple,

6Q6 APPENDIX OF STATUTES.

together with all rights, privileges, and appurtenances belonging
or appurtenant thereto, subject as follows: —

(1) To the incumbrances (if any) entered on the certificate of
title, and

(2) To such liabilities, rights, and interests as may, under the
provisions of this Law, subsist over land brought under the operation
of this Law without being entered on the certificate of title as incum-
brances, but free from all other estates and interests whatsoever,
including estates and interests df her Majesty, her heirs and succes-
sors, save only quit rents, land tax or other impost, charged generally
on lands in this Island, that have accrued due since the land was
brought under the operation of this Law.

18. A person registered under this Law as proprietor of any land
with a qualified title shall be entitled to hold such land, except as
against any person claiming any estate, right, or interest therein aris-
ing before a specified date, or under a specified instrument, or other-
wise particularly described in the certificate of title; and the regis-
tration of a person with a qualified title shall have the same effect as
the registration of such person with an absolute title, save that reg-
istration with a qualified title shall not affect or prejudice the enforce-
ment of any estate, right, or interest appearing on the certificate of
title to be excepted: provided always that a person registered as
aforesaid with a qualified title may at any time thereafter apply to be
registered with an absolute title, subject to all the provisions relating
to an original application, save and except that only half the fees
payable on any such original application shall be payable. And that
it shall not be obligatory on the referee to cause the application to. be
advertised before directing the registrar to register such applicant
with an absolute title.

J. 1889, s. 33. In all cases in which prior to the passing of the said
Law [of 1888] a "patent"' as defined in the said Law would have been
the appropriate form of conveyance to any grantee of any lands, in
lieu of such patent it shall be sufficient for the Governor to issue
directions to the registrar to register the proposed grantee as the
proprietor of the land to be granted to him, and the registrar shall
thereupon, upon payment by the proposed grantee of the fee payable
for a certificate of title, without reference to the referees or obser-
vance of any of the forms required to be observed in other cases,
forthwith bring the land described in such requisition under the opera-
tion of the said Law, by registering the title of the person named in
such requisition as the proprietor of the said land: provided always
that the assurance fund under the said Law shall not be answerable in
respect of any claim thereafter arising in reference to the said land,
but the public treasury of the Island shall be liable in the same way
and to the same extent as, in other cases under the said Law. the appli-
cant or the said assurance fund would be liable.

Id. s. 34. Any patent heretofore made may, for the purpose of
bringing land under the operation of the said Law, be deemed by the
registrar or a referee sufficient evidence of the title of the grantee
under any such patent to the land comprised in such patent, subject
to any estate or interest appearing by such patent or subsequently
created.

19. Any of the following persons may, by an application ad-
dressed to the registrar, in the form in the first schedule hereto, apply

JAMAICA. $Q1

to have land brought under the operation of this Law (that is to say)
— [V. 1915, s. 18, ante p. 404, omitting cl. vii (tenant for life) and
final para, (deeds 20 years old, &c").J

J. 1894, s. 1. When any contract shall have been made for the
sale and purchase of any land, then unless the person agreeing to sell
such land shall have stipulated to the contrary, it shall be lawful for
the purchaser, at any time before the completion of the purchase, to
require that the vendor shall, instead of making a conveyance of such
land, cause him to be registered as proprietor of the land the subject
of the contract under the provisions of the Registration of Titles Law
1888, with an absolute title in cases where the land has been agreed to
be sold without any special conditions as to title, or with a title sub-
ject to such qualifications as may be in accord with the conditions
under which the land was agreed to be sold: provided that nothing
herein contained shall deprive any vendor of any right which may
arise out of such contract for sale by reason of any rule of law or
equity: provided also that the incidence of costs as provided for under
the Conveyancing Law 1889 shall be in no way affected.

Id. s. 2. If the purchaser shall exercise the option hereby vested
in him, the vendor shall furnish him with the information which he
is, under the said Conveyancing Law, bound to furnish, and shall sub-
mit the draft application filled in with such particulars, and the pur-
chaser shall at his own expense make all such searches and investi-
gations into the title as are required to make the application complete.

Id. s. 3. The costs of the application form, the fees payable
under the Registration of Titles Law, and stamp duty (if any), shall
be deemed to be the vendor's costs within the meaning of section 2 of
the Conveyancing Law 1889. ....

21. A person applying to have any land brought under the opera-
tion of this Law shall describe and identify the land in one or other
of the following ways: —

1. By plat or diagram.

2. By metes and bounds.

3. By giving its reputed name, if he applies to be registered

in respect of the whole land going by that name.

4. By giving its reputed name and, if he applies to be regis-

tered in respect of a part only of the whole land known

by that name, saving and excepting either — (a) defined

portions or (&) undefined portions.

J. 1910, s. 7. (i) Any person, entitled to sell land which shall have

been registered otherwise than by plat or diagram, may apply to have

such land registered by plat or diagram.

(ii) An application under this section shall in all respects be
treated and dealt with as if it were an original application to reg-
ister land. The duplicate certificate of title shall accompany the appli-
cation, and the same shall be retained and cancelled by the registrar,
and the original certificate of title shall also be cancelled by the reg-
istrar before the issue of a new certificate.

(iii) The referee when communicating any provisional approval
of the registration of such title to the registrar shall, besides giving
such directions as are required in the case of original applications,
direct the registrar to cause notification of the application to be

668 APPENDIX OF STATUTES.

served on all persons, other than the applicant, who appear by the
certificate of title to have any interest in the land.

22. The registrar shall submit such application, together with
the deeds, documents, or other evidence as aforesaid, to one of the
referees for his direction; and if the referee shall, on consideration
of the deeds, documents or other evidence aforesaid, be of opinion that
the applicant is a person entitled to make application under this Law,
and that he is in possession by himself or a tenant of the land de-
scribed or identified in the application, and that he would be entitled
to maintain and defend such possession against any other person
claiming the same or any part thereof, he shall provisionally approve
the registration of the title of the applicant or his nominee as an
absolute title to the land described or identified in the application.

If the referee shall be of opinion that the applicant is entitled to
make application as aforesaid, and that he is in possession as afore-
said substantially of the land described or identified as aforesaid, and
that he would be entitled to maintain and defend such possession as
against any other person claiming the same or any part thereof, and
that the land of which the applicant is in such possession as aforesaid,
though the evidence is insufficient as to the description or identifica-
tion thereof given in the application, is capable of being described or
identified in one of the other ways in which it might have been de-
scribed or identified in the application, he shall provisionally approve
the registration of the title of the applicant or his nominee, as an
absolute title to land described or identified in one of the other ways
in which it might have been described or identified in the application.

In either of the two cases aforesaid, if the referee shall be of
opinion as aforesaid, except that the applicant does not satisfy him
that he would be entitled to maintain and defend his possession
against any person whose estate, right, or interest might arise before
a specified date or under a specified instrument, "or might be otherwise
particularly described, he shall provisionally approve the registration
of the title of the applicant or his nominee as a qualified title to land
as aforesaid, and shall specify the nature of the qualified title to land
as aforesaid, and shall specify the nature of the qualification to which
such title is to be subject.

23. It shall be no objection to the referee approving any title as
aforesaid that the land is subject to any liabilities, rights, or interests
which under the provisions of this Law need not be entered on the
certificate of title as incumbrances, or that the land is subject to any
incumbrance (not being a mortgage the owner whereof shall not have
consented to the application) which may be specified in the certificate
of title and continue outstanding.

31 [Am. 1894, s. 4]. Upon registering a certificate of title, the
registrar shall retain in his custody and possession all deeds, instru-
ments, and documents evidencing the title of the person registered,
and shall endorse upon the last of them, if there be more than one, a
memorandum that the land included in the certificate has been brought
under this Law, and shall sign such memorandum: provided always
that if any such deeds, instruments, or documents relate to any pro-
perty other than the land included in such certificate, the registrar
shall cause such deed, document or instrument (if unrecorded) to be

JAMAICA. Q{>\)

copied at the expense of the applicant, such copy to be retained by the
registrar, and shall return such deed, instrument, or document to the
person from whom he received the same, having first endorsed upon
the same a memorandum signed by him to the effect that the land
Included in the certificate has been brought under the Law.

No person shall be entitled to inspection [V. 1915, s. 34, ante
p. 407.]

J. 1889, s. 37 [1910, s. 8]. When any land shall be brought under
the operation of the principal Law, the registrar shall in the case of
all applications in which it appears that a deed or other document of
title relating to the land is on record in the record office, forthwith
notify the fact to the deputy keeper of the records, and shall furnish
him with particulars of the recording of such deed or document with
regard to each parcel, if more than one, or the last of such deeds, if
more than one, and the deputy keeper of the records shall thereupon
make a memorandum of such fact on the margin of the record of the
last such deed or document, or deeds or documents.

40. Land shall be brought under the operation of this Law by
the registrar registering a certificate certifying, under his hand
and the seal of the office, that a person therein named is the proprietor
of the land therein described or identified, either with an absolute
title, or with such qualified title as may have been directed and
approved by the referee (as the case may be). Such a certificate
(hereinafter called "certificate of title") shall be in duplicate [V.
1915. s. 47, ante p. 408.]

50. Two or more persons may be registered under this Law as
joint tenants, tenants in common, or coparceners of any land. In
all cases where two or more persons are registered as tenants in
common, or as coparceners, of any land, one certificate for the entirety,
or separate certificates for the undivided shares, may be issued; but
in the case of persons registered as joint tenants, one certificate only
shall be issued.

53. No certificate of title registered and granted under this Law
shall be impeached or defeasible by reason or on account of any
informality or irregularity in the application for the same, or in the
proceedings previous to the registration of the certificate; and every
certificate of title issued under any of the provisions herein contained
shall be received in all courts of law and equity as evidence of the
particulars therein set forth, and of the entry thereof in the register
book, and shall, subject to the subsequent operation of any statute
of limitations, be conclusive evidence that the person named in such
certificate as the proprietor of, or having any estate or interest in. or
power to appoint or dispose of, the land therein described, is seised or
possessed of such estate or interest, or has such power.

54. In any suit for specific performance [V. 1915, s. 71, ante
p. 412] the certificate of title of such proprietor shall, if such pro-
prietor is registered with an absolute title, be held to be conclusive
evidence that such proprietor has a good and valid title to the land

670 APPENDIX OF STATUTES.

for the estate or interest therein mentioned or described, and shall
in any such suit entitle such proprietor to a decree for the specific
performance of such contract. And if such proprietor is registered
with a qualified title, the certificate shall be conclusive evidence that
he has a good and valid title, subject to the qualification therein set
forth.

55. Notwithstanding the existence [V. 1915, s. 72, ante p. 413]:
provided always that the land which shall be included in any certifi-
cate of title or registered instrument shall be deemed to be subject
to the reservations, exceptions, conditions, and powers (if any) con-
tained in the patent thereof, and to any rights acquired over such
land since the same was brought under the operation of this Law
under any statute of limitations, and to any public rights of way, and
to any easement acquired by enjoyment or user, or subsisting over
or upon or affecting such land, and to any unpaid rates and assess-
ments, quit-rents or taxes, that have accrued due since the land was
brought under the operation of this Law, and also to the interests of
any tenant of the land for a term not exceeding three years, notwith-
standing the same respectively may not be specially notified as incum-
brances in such certificate or instrument.

66. Whenever by a transfer, or by any other lawful mode, a por-
tion only of the land comprised in any certificate of title passes to any
person other than the registered proprietor thereof, the registrar,
having duly registered the instrument under which such portion
passes shall, on payment of the fee payable under the provisions of
this Law, register the title of the person to whom such interest has
passed in manner hereinbefore provided in the case of land being first
brought under the operation of this Law; but when the whole of the
land passes to any person other than as aforesaid, it shall not be
incumbent on the registrar to make out a new certificate of title in
the name of such person, but such person shall be deemed to be duly
registered as proprietor of such land when a memorandum of the
transfer or other legal mode as aforesaid shall have been registered
under this Law: provided always that if the transferee desire it, the
registrar shall cancel the certificate of title and the duplicate, and
shall retain such duplicate, and issue a new certificate of title in the
name of the transferee.

71. In every lease [V. 1915, s. 132, ante p. 426]—

1. That he or they will pay the rent reserved by the lease at

the times ■ therein mentioned, and all rates and taxes
which may be payable by the occupier of such leased
property during the continuance of the lease, unless
otherwise specially provided.

2. That he or they will keep and yield up the leased property

in good and tenantable repair, accidents and damages
from storm and tempest, or other acts of God and the
Queen's enemies, and reasonable wear and tear, excepted.

76. Upon the bankruptcy of the proprietor of any lease [V. 1915,
s. 137, ante p. 428; for "insolvent,'' &c, substitute "bankrupt," &c, and
for " 21 days " substitute " 42 days."]

JAMAICA. 671

79. The proprietor of any land under the operation of this Law
may mortgage the same to the trustees or trustee of any benefit build-
ing society, by signing a mortgage thereof in the form in the eleventh
schedule of this Law.

[Under the Hurricane Loans Law 1903 (Law 47) loans from the
Government may be secured by the borrower signing a prescribed
form of receipt for the advance. By s. 8 these receipts " shall be in
duplicate, ". . . . and one copy of such receipt shall be lodged
with the registrar of titles, and he shall register the same as a mort-
gage . . ."J

[81: V. 1890, s. 116, Aust. Torr. Syst. 532. V. 1915. s. 148, is
amended by V. 1916, s. 9, ante p. 430.]

[84: V. 1915, s. 151, ante p. 432. J

J. 1903. s. 1. (1) A mortgagee of land under the Registration of
Titles Law 1888, while in possession thereof shall, as against all prior
incumbrances (if any) and as against the mortgagor, have by virtue
of this Law power to make from time to time any of the following
leases: — ■

(i) An agricultural or occupation lease for any term not

exceeding 21 years; and
(ii) A building lease for any term not exceeding 99 years.

(5) Every such lease shall be registered, in the manner required
by the Registration of Titles Law 1888 for the registration of instru-
ments affecting lands under that Law, if wholly executed in Jamaica
within 90 days of its execution, or if wholly or partly executed out of
Jamaica within 12 months of its execution.

Id. s. 2. (1) A mortgagee of any land under the said law shall
have power, whenever he shall be entitled to sell the mortgaged pro-
perty or any part thereof, by writing under his hand to appoint a
receiver of the income of the mortgaged property or any part thereof.

(2) The appointment shall be registered in manner hereinbefore
provided before, or within 30 days of, its being acted upon.

Id. s. 3. Conveyances or transfers of land under the Registration
of Titles Law, executed under the authority of the Settled Land Law
1888 (Law 16 of 1888), need not be recorded in the record office, but
shall be registered in manner hereinbefore provided.

85. Besides his other remedies, every mortgagee or annuitant for
the time being, and every transferee of a mortgage or charge [V. 1915.
s. 152, ante p. 432]: provided also that if there be more than on<4
mortgage or charge on any land, the mortgagees or annuitants shall
be entitled to exercise the remedy given by this section according to
their priorities.

89, 90. In addition to and concurrently with the rights and powers
conferred on mortgagees, and on transferees of mortgages by this Law,
every mortgagee for the time being [V. 1915, ss. 156, 157, ante p. 433.
omitting references to "first" mortgages, &c.]

[91, 92: V. 1915, ss. 158, 159, ante p. 434, omitting the words
" beyond £2.5."']

672 APPENDIX OF STATUTES.

100. Every covenant [V. 1915, s. 176, ante p. 439]: and where in
any instrument there shall be more than one covenantor, such cove-
nants as are by this Law declared to be implied in instruments of
the like nature shall be construed to be several, as well as joint.

[101: V. 1890, s. 138, Aust. Torr. Syst. 540. V. 1915, s. 177, differs:
ante p. 440.]

Bankruptcy.

103. When upon the bankruptcy of the proprietor of any land,
lease, mortgage or charge, the estate or interest of such proprietor in
such land, lease, mortgage, or charge vests in the trustee in bank-
ruptcy, such trustee shall be entitled to be registered in respect of
the same; and the registrar, upon the receipt of an office copy of the
conditional or absolute order in bankruptcy against such proprietor,
accompanied by an application in writing under the hand of the trus-
tee to be registered in respect of any land, lease, mortgage, or charge
of such bankrupt, therein described, shall enter in the register book,
upon the folium constituted by the certificate of title of such land, a
memorandum notifying such order in bankruptcy; and upon such
entry being made the trustee shall become the transferee, and be
deemed to be the proprietor of such land, lease, mortgage or charge,
estate or interest, and shall hold the same subject to the equities upon
and subject to which the bankrupt held the same; but for the purpose
of any dealings therewith under the provisions of this Law such trus-
tee shall be deemed to be the absolute proprietor thereof. If the trus-
tee shall omit or neglect to make the application aforesaid, or to lodge
a caveat under the general provision relating to caveats hereinafter
contained, within seven days after the registrar shall have notified to
him, by a letter delivered or registered, that application has been
made for the registration of an instrument concerning property (to
be in such notice described) standing in the register book in the name
of the bankrupt, such instrument may be registered, and thereupon
shall not be affected by the order of adjudication, either at law or in
equity. If a caveat shall be lodged pursuant to such notice, the same
shall be dealt with and be subject to the same provisions as other
caveats, with this variation, that the fourteen days' notice required in
general cases need not actually be given to the caveator, but shall be
deemed to have been given on the day on which the caveat was lodged.

Miscellaneous.

104. The registrar, upon production of sufficient proof of the
marriage of a female registered as a proprietor of any land, or of any
lease, mortgage or charge, not appearing by the register book to be
held for her separate use, accompanied by an application in writing
signed by such female proprietor to have the fact of her marriage, with
the name and addition of the husband, endorsed upon the certificate
of title, shall make such endorsement; and thereupon the husband of
such female proprietor shall acquire all such title, estate, and interest
to and in such land, lease, mortgage or charge, as he would have
acquired if this Law had not been passed, and shall be deemed to be
registered in respect thereof, to all intents and purposes. Until such

JAMAICA. 673

entry shall be made, such woman shall be deemed in law and in equity
the sole and absolute proprietor of such land, lease, mortgage or
charge, to all intents and purposes, as if she had remained unmarried.
105. Whenever the fact of any marriage, and the name of the
husband, has been so endorsed as aforesaid, then upon the death of
the husband in the lifetime of the wife, or upon the death of the wife
leaving her husband entitled as tenant by the curtesy of land com-
prised in the certificate of title upon which the said endorsement has
been made, and in any case upon the death of any person registered
with any other person as joint proprietor of any mortgage owned on
a joint account in equity, the registrar, on the application of the
widow, husband, or person entitled by survivorship as aforesaid, and
proof to his satisfaction of such events as aforesaid, may register such
applicant as the proprietor thereof, and she or he shall, upon being
registered in the manner herein prescribed for the registration of a
like estate or interest, become the transferee of such land, mortgage
or charge, and be deemed the proprietor thereof, but as regards any
tenancy by the curtesy for the lifetime only of such husband.

[109: W. A. 1893, s. 124, Aust. Torr. Syst. 629, as originally en-
acted.]

Powers of attorney.

110. The proprietor (including a married woman) of any land
under the operation of this Law, or of any lease, mortgage or charge,
may appoint any person to act for him in transferring the same, or
otherwise dealing therewith, by signing a power of attorney in the
form or to the effect in the first schedule hereunder [1889]. Every
such power, or a duplicate or attested copy thereof, shall be deposited
with the registrar, who shall note the effect thereof in a book to be
kept for the purpose.

Attestation of instruments.

112. Instruments and powers of attorney under this Law signed
by any person and attested by one witness shall be held to be duly
executed; and such witness may be —

(Within this Island) — the Governor, or any of the judges of
the Supreme Court, or any justice of the peace, or the
registrar under this Law, or a notary public, or a solici-
tor of the Supreme Court.
(In Great Britain or Ireland) — the mayor or deputy mayor,
or other chief magistrate or deputy chief magistrate, of
any city, borough or town corporate, or a notary public.
(In any of the dominions, territories, colonies, dependencies
or possessions of the Crown of Great Britain and Ireland)
— the Governor or person exercising the functions of Gov-
ernor, the commander in chief, a judge of any court, the
mayor or chief magistrate of any city or town, or a no-
tary public.
(In any foreign state or country) — the British consular
officer (which expression shall include consul-general,
consul and vice-consul, and any person for the time being

674 APPENDIX OF STATUTES.

discharging the duties of consul-general, consul or vice-
consul,) or a notary public: provided that where any
such instrument or power of attorney purports to have
been witnessed or certified by any notary public in any
foreign state or country, there shall be annexed to such
instrument or power of attorney a certificate, under the
hand and seal of the British consular officer exercising his
functions in such foreign state or country, to the effect
that the person by whom such instrument or power of
attorney has been witnessed or certified is a notary
public duly commissioned and practising in such foreign
state or country, or some portion thereof, and that full
faith and credit can be given to his acts.

Such witness, whether within or without this Island, may
also be any other person, but in such case he shall appear
before one of the officers or persons aforesaid who, after
making due enquiries of such witness, shall endorse upon
the instrument or power a certificate in the form in the
second schedule hereunder [1889], and such certificate
shall be deemed sufficient proof of the due execution of
such instrument or power, subject to the proviso herein-
before contained as to any such instrument or power of
attorney witnessed or certified by a notary public in any
foreign state or country.

Where an instrument or power of attorney shall be witnessed
or certified out of this Island by any of the officers afore-
said, the seal of office of such officer shall be affixed to hi,s
attestation or certificate on such instrument or power of
attorney.

[114: V. 1890,- s. 145, Aust. Torr. Syst. 543. V. 1915, s. 184, has
been amended: ante p. 442.]

115. In every case in which, prior to a person becoming a regis-
tered proprietor of any land, lease, mortgage or charge under this Law,
an order of sequestration of his estate, or an adjudication in bank-
ruptcy shall have been or shall hereafter be made, and any instrument
affecting such land, lease, mortgage, or charge is presented for regis-
tration, the registrar shall forthwith notify to the trustee of such estate,
by a letter delivered or registered (in which shall be mentioned the
bankrupt's name), that application has been made for the registration
of such instrument; and unless a caveat forbidding such registration
shall be lodged within seven days after the service or posting of such
letter, such instrument may be registered [&c, s. 103, ante p. 672.]

116 [1910, s. 6]. iSo long as any caveat shall remain in force, pro-
hibiting any registration or dealing with the estate or interest in
respect to which such caveat may be lodged, the registrar shall not
enter in the register book any change in the proprietorship, or any
transfer or other instrument presented for registration subsequent to
the date on which such caveat was lodged, purporting to transfer or
otherwise deal with or affect the estate or interest in respect to which
such caveat may be lodged, or issue any registration abstract.

[143: V. 1915, s. 241, ante p. 453, omitting reference to "two or
more grants from the Crown.""J

TRINIDAD AND TOBAGO. 575

TRINIDAD AND TOBAGO.

Real Property Ordinance

(Laws 1902, No. 00).

Note. — The principal statute (a revision of one passed in 1889) is
modelled on the original New South Wales statute (now reproduced
in N. S. W. 1900), with a few provisions from the statutes of other
jurisdictions, and some differing altogether from other statutes; the
sections do not, however, always stand in the same order as in the
present New South Wales statute. Amendments have been incorpor-
ated in or printed with the sections of the principal statute, and (for
the most part) only those sections are here printed or referred to
which differ from, or are not contained in, the New South Wales
statute. The chief points of difference relate to the remedies of mort-
gagees and the provision for transmission on death. No provision is
made for registration overriding the rights of persons in adverse pos-
session, s. 45 of the New South Wales statute not being adopted. The
N. S. W. 1900 is printed in Aust. Torr. Syst. 88 et seq.

An Ordinance relating to the registration of titles to land.

[Interpretation clause, substantially as in N. S. W. 1900, s. 3,
except the following (" incumbrancee " being omitted altogether .]

" Incumbrance " means any charge on land created for the
purpose of securing the payment of an annuity or sum
of money, and any matter not a transfer of which a
memorandum has been endorsed as such, or an entry
made in the register book.

" Incumbrancer " means the person in whose favour an incum-
brance subsists.

[IO, 11: N. S. W. 1900. s. 14, adding at end of s. 11]: provided
that no application shall be entertained in respect of any land which
is in adverse occupation.

[13. Every such application shall be accompanied by a map of
the land therein referred to. prepared and certified in accordance with
the prescribed provisions.

14. Upon the receipt of such application by the registrar-generai
the title of the applicant shall be examined and reported upon by the
examiner, and the case shall thereupon be referred to a judge for his
consideration [N. S. W. 1900, s. 17.]

15. Any report made by an examiner to a judge shall be privi-
leged, and shall not be liable to inspection or production.

16. Where the applicant is not the original grantee from the
Crown, if it shall appear to the satisfaction of a judge that the land
[N. S. W. 1900, s. 18.]

17. If it shall appear to the satisfaction of a judge that any par-
ties interested [N. S. W. 1900, s. 18.]

18. When any land is brought under this Ordinance in pursuance
of aD order made under either of the last two preceding sections, the

676 APPENDIX OF STATUTES.

registrar-general shall make an entry in the index of deeds, under the
names of the persons on whose application such order was made, and
such entry shall, for all purposes for which the registration of a deed
is notice, be deemed to be notice that the land has been brought under
the provisions of this Ordinance.

[20: V. 1915, s. 23, ante p. 405.]

26. [N. S. W. 1900, s. 26, substituting " one calendar month " for
"three months," and adding]: provided that if in such proceedings
such person [caveator] shall prove that he is in possession of such
land, nothing in this Ordinance contained shall enable the applicant to
recover possession thereof, or to have such land brought under this
Ordinance, without previously establishing his own title thereto.

46. [N. S. W. 1900, s. 41, adding at end], or may refuse to register
either instrument until an order determining the relative rights of
the several claimants shall have been made by the court or a judge.

48. Notwithstanding anything herein contained, the land which
shall be included in any certificate of title or registered instrument
shall be deemed to be subject to the reservations, exceptions, condi-
tions and powers (if any) contained in the deed by which the said
land was originally granted by the Crown, pursuant to the regulations
in force at the time respecting the sale and disposal of the waste lands
of the Crown in this colony, and subject to any resumptions which
may have been made of the said land or any part thereof in pursuance
of such reservations of right as aforesaid, and to any taking of the
said land or any part thereof that may have been effected pursuant to
the provisions of any Ordinance authorizing his Majesty, or any per-
son on behalf of his Majesty, his heirs and successors, to take the same,
and subject also to any public rights of way, and to any unpaid public
land charge, rates, taxes and assessments and succession duty, not-
withstanding the same respectively may not be specially notified as
incumbrances on such certificate or instrument.

49. The registrar-general shall not register under this Ordinance
any instrument, purporting to transfer or otherwise deal with or affect
any estate or interest in land under the provisions of this Ordinance,
except in the manner herein provided; nor Unless such instrument be
in accordance with the provisions hereof: provided that for the pur-
poses of this section a warrant of forfeiture under the Land Charges
and Land Taxes Ordinance shall not be deemed to be an instrument
as aforesaid.

56. On a transfer of leasehold property for the whole of the inter-
est of the transferor in the whole of the land comprised in the grant
or certificate relating thereto, such grant or certificate and the cor-
responding entry in the register book shall not be cancelled, but shall
be endorsed with a memorial of such transfer and shall be delivered
to the transferee. If a part only of the transferor's interest in such
land, or his interest in a part only of such land be transferred, or if an
easement thereof be created, such dealings shall be evidenced by
memo?ials endorsed on the proper certificates of title, so far as pos-
sible in the manner directed in the case of freehold property, and the

TRINIDAD AND TOBAGO. 577

registrar-general shall have all the powers necessary for or incidental
to the purpose.

[57: N, S. W. 1900, s. 48 (2), inserting: "and every grant or
certificate with such memorandum shall be as effectual for the purpose
of evidencing title and for all other purposes as if the old grant or
certificate had been cancelled and a new certificate had been issued to
the transferee in his own name."J

66. A married woman, being a registered proprietor of land, shall
be deemed to be entitled thereto for her sole and separate use, and
for the purposes of this Ordinance a married woman may deal with
land under this Ordinance, and may execute and sign all deeds and
instruments and do all personal acts, without the concurrence of her
husband, as effectually as if she were a feme sole, and without any
separate examination or acknowledgment.

PART V. Leases.

67. When any land under the provisions of this Ordinance is
intended to be leased or demised for a life or lives, or for any term of
years exceeding three years, the proprietor shall, and if any such land
is intended to be leased for a period of less than three years the pro-
prietor may, with the consent of the intending lessee, execute a memor-
andum of lease. . . and every such instrument shall for description of the
land intended to be dealt with refer to the grant or certificate of title
of the land, or shall give such other description as may be necessary
to identify such land: provided that a right for or covenant by the
lessee to purchase the land therein described may be provided in such
instrument, and in such case if the lessee shall pay the purchase-
money stipulated and otherwise observe 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. Save
as provided by the Conveyancing Ordinance, no lease of mort-
gaged or incumbered land shall be valid and binding against the mort-
gagee or incumbrancer, unless such mortgagee or incumbrancer shall
have consented to such lease prior to the same being registered, and a
note of such consent shall have been entered in the register book.

68. On presentation of any memorandum of lease drawn, executed,
and proved in accordance with the provisions of this Ordinance, the
registrar-general shall register such lease; and no lease unless regis-
tered shall be valid against any registered transferee, mortgagee,
incumbrancer or lessee.

69. When such lease is presented for registration, a memorial
thereof shall be endorsed, as an incumbrance, on the certificate of
title and on the proper page in the register book: provided that any
registered lease may be extended in manner hereinafter mentioned.

PART VI. Mortgages and incumbrances.

[74: V. 1915, s. 145, ante p. 430.]

75. Subject to the provisions in this Ordinance contained, every
mortgagee or incumbrancer under this Ordinance shall, when his
mortgage or incumbrance is registered, have all the rights and powers,
and be subject to all the limitations and provisions, which he would

678 APPENDIX OF STATUTES.

have enjoyed or been subject to under the law for the time being in
force, if the land comprised in the mortgage had not been subject to
this Ordinance, and he were a mortgagee or incumbrancer under an
instrument purporting to convey the legal estate, and duly executed,
attested and registered, and containing, in addition to all implied
provisions and conditions, all the special covenants, provisions, and
conditions contained in the instrument of mortgage or incumbrance
registered under this Ordinance as aforesaid.

76. As between different mortgages and incumbrances, priorities
shall be determined by the relative priority in time of the entries
relating thereto in the register book.

77. No transfer by a mortgagee on a sale under any statutory
power of sale shall be registered, unless the instrument of transfer
shall refer to the power under which it is made, and if such transfer
be made in professed exercise of the power of sale conferred by the
Conveyancing Ordinance, it shall be lawful for the registrar-general,
unless he see reason to the contrary, to register such transfer without
evidence that such power has been duly and properly exercised.

78. On the registration of a final order for foreclosure, the regis-
trar-general may issue a certificate of title to the mortgagee, and may
call in the certificate of title of the mortgagor for complete or partial
cancellation as the case may be. After the issue of such certificate
such foreclosure may not be re-opened as against any subsequent trans-
feree, mortgagee or incumbrancer.

£79: N. S. W. 1900, s. 81, short covenants to insure, not to use as a
shop, not to carry on offensive trade, not to assign, not to cut timber.
In the covenant to insure, the insurance money " shall at the option
of the mortgagee be applied either in or towards satisfaction of the
moneys secured by the mortgage or in making good the loss or dam-
age in respect of which the money is received."]

[80: V. 1915, s. 163, ante p. 436 J

[81: W. A. 1893, s. 124, as originally enacted, Aust. Torr. Syst.
629.]

82. Upon proof to the satisfaction of the judge of the death [V.
1915, s. 164, ante p. 436.]

[83, 84: V. 1915, ss. 166, 167, ante p. 437.]

86. Dower or its extinction may be registered in like manner and
on payment of like fees as incumbrances, but dower shall not be
deemed to be an incumbrance.

PART VII. Powers of attorney and registration abstract.

87. The registered proprietor of any land, estate, or interest under
the provisions of this Ordinance may, whether he be a trustee or not,
authorize and appoint any person to act for him or on his behalf, in
respect to the transfer or other dealings with such land, estate or inter-
est in accordance with the provisions of this Ordinance, by executing a
power in any form heretofore in use for the like purpose, or in form
K of schedule I hereto, and such power of attorney shall either be reg-
istered in the registry of deeds, or a duplicate or certified copy thereof
shall be filed in the office of the registrar-general, who shall on pay-
ment of the prescribed fee enter in the register book a memorial of

TRIXIDAD AXD TOBAGO. g79

the particulars therein contained, and the date and hour when it was
registered or filed: provided that the registrar-general shall not be
bound to enter any such memorial of any power of attorney drawn
otherwise than in the said form in the said schedule, unless he be
requested in writing so to do, and the proper reference to the page or
pages in the register book referring to the lands, the dealing with
which is authorized by such power, be furnished to him: provided
also that no power of attorney shall be deemed to authorize any deal-
ing under this Ordinance, until such memorandum has been entered
as aforesaid.

PART VIII. Judgments, lites pendentes, execution and forfeiture.

92. When any memorandum of judgment under the Remedies of
Creditors Ordinance, or of lis pendens, shall have been registered as
against any person, the registrar-general shall endorse a caveat on
each page of the register book relating to land of which he is the
registered proprietor, and upon the endorsement of su^h caveat the
charge (if any) therein referred to shall remain in force for three
years, unless such caveat shall be previously withdrawn or removed
by order of a judge: provided that on re-registration of such memor-
andum of judgment or lis pendens, such caveat shall also be renewed:
provided also that when any sueh caveat as aforesaid shall be entered
in the register book, the registrar-general shall make the correspond-
ing entry on the duplicate certificate of title when produced to him,
and he may require any such certificate of title to be delivered up to
him for such purpose.

[93: N. S. W. 1900, s. 105 (l)-(4), (6), " subject to the provisions
hereinbefore contained respecting memoranda of judgments.]

Tr. 1914, s. 4. Where land registered under the provisions of the
Real Property Ordinance (No. 60) is sold by an officer in the public
service under the provisions of any Ordinance, or by any public au-
thority under the provisions of the Public Authorities (Rates and
Charges Recovery) Ordinance 1913. such officer or the chairman of
such authority, as the case may be, shall unless a mode of transfer
is otherwise provided for, execute a transfer to the purchaser of the
land sold, and such transfer shall be expressed to be made by such
officer or chairman in his official or public capacity, and by virtue of
the Ordinance empowering and authorizing him as aforesaid.

94. The registrar-general shall, on receiving from the sub-inten-
dant of Crown lands a warrant of forfeiture, or a duplicate or certi-
fied copy thereof, of any land under this Ordinance, containing the
proper reference to the entry in the register book, relating to such
land, enter a memorandum of such forfeiture in the register book, and
shall cancel the grant or certificate of title contained in the register
book so far as it relates to the land, estate, or interest forfeited, and
may require the registered proprietor to deliver up for similar can-
cellation, as herein provided, the duplicate grant or certificate of title:
provided . . . (3) That notwithstanding anything contained in
the Land Charges and Land Taxes Ordinance, no land under the oper-
ation of this Ordinance shall be deemed to be forfeited, unless the
warrants of forfeiture relating thereto shall contain the proper refer-

680 APPENDIX OF STATUTES.

ence to the entry in the register book relating thereto, or until such
cancellation in the register book as is hereinbefore directed shall have
been made.

(4) That any acquittance given by the sub-intendant of Crown
lands under the said Land Charges and Land Taxes Ordinance shall, if
it relates to any land under this Ordinance, be notified by him to the
registrar-general, with the proper reference in each case to the entry
relating thereto in the register book; and the registrar-general shall
on receipt of such notification make a memorandum of such acquit-
tance, and the reverting of the land thereby affected, in the register
book, and also on the duplicate grant or certificate of title if delivered
to him for the purpose; and such cancellation as aforesaid shall there-
upon be deemed to be annulled.

Tr. 1914, s. 2. (1) In the case of land of any proprietor . . .
which is resumed by the Crown . . . the sub-intendant shall for-
ward to the registrar-general the particulars of such resumption . .
(3) The amount of land so resumed . . . shall be endorsed on the
original Crown grant or certificate of title. . . .

95. All regrants under the said Land Charges and Land Taxes
Ordinance, and all conveyances under the Casual Revenue Ordinance,
relating to lands under the operation of this Ordinance, may be noted
in the register book, and any such regrant or conveyance which
relates only to land under this Ordinance may be registered in the
register book instead of in the register of deeds; and it shall be the
duty of the sub-intendant of Crown lands to note on every such regrant
or conveyance the proper reference to the entry in the register book
relating to the land comprised therein, if such reference shall have
been brought to his knowledge.

PART IX. Transmission on bankruptcy.

97. Subject to the provisions of the Bankruptcy Ordinance and of
any Ordinance amending the same and for the time being in force,
and of this Ordinance, a trustee in bankruptcy may disclaim any land
or interest therein which is subject to this Ordinance, and the regis-
trar-general, on receiving such disclaimer in writing, duly signed and
properly referring to the land or interest in question, and an office
copy of the certificate of his appointment, may make an entry relating
thereto in the register book, and the person entitled to any land or
interest therein under this Ordinance, on the determination of the
estate or interest of the bankrupt or the persons claiming under him,
may thereupon apply to be registered in respect thereof; provided that
if the property disclaimed shall be a lease subject to a mortgage, the
mortgagee shall be entitled to be registered as proprietor of such lease,
and no other applicant shall be registered as proprietor thereof
except with such mortgagee's consent, or by the order of a judge.

Tr. 1914, s. 3. The committee of a lunatic so found by inquisition
may be registered as the proprietor of any estate or interest in any
land of which the lunatic is the registered proprietor, on payment of
the prescribed fee, and on furnishing the registrar-general with such
evidence as he may require.

TRINIDAD AND TOBAGO. 681

PART X. Transmission on death.

98 [Am. 1908, s. 3; 1916, s. 8]. On the death of a sole registered
proprietor, or of the survivor of several registered proprietors of land,
the personal representative or representatives of the sole proprietor or
survivor shall alone be recognized by the registrar-general as having
any right in respect of the land, and any registered dispositions by him
or them shall have the same effect as if he or they were the registered
proprietors of the land: provided that they may be registered as pro-
prietors of such land on payment of the prescribed fee, and furnishing
the registrar-general with such evidence as he may require: . . .
it shall be lawful for the registrar-general to register the administrator-
general a proprietor of any land forming part of any estate under £200
in value, of which he shall have taken possession under the powers con-
ferred on him by the Administration of Property Ordinance 1913, with-
out the production of probate or letters of administration.

99. Notwithstanding the preceding section hereof, where land of
which a person is registered as limited proprietor passes to another
person on the determination of the estate of that proprietor, the per-
son to whom the land so passes may be entered in the register as
proprietor of the land, and the registrar-general on his application, or
on that of the trustees of the settlement (if any), and on production
of such evidence as he may require, and in case the fee simple in the
land shall not have been already brought under the provisions of this
Ordinance, in accordance with the provisions of part II. hereof, shall
register him as proprietor accordingly.

100. (1) On the death of the sole registered proprietor of any
land it shall, notwithstanding any testamentary disposition, devolve
to and become vested in his personal representative or representatives
from time to time, as if it were a chattel real vesting in them or him.

(2) This section shall apply to any land over which a person
executes by will a general power of appointment, as if it were land
vested in him.

(3) Probate and letters of administration may be granted in
respect of land only, although there is no personal estate.

[101: Eng. 1897, s. 2 (1), (2), Own. & Inc. 336.]

102. No land under this Ordinance shall be liable to any
charge created by the will of a deceased registered proprietor, until a
memorandum of such charge shall have been made by the registrar-
general in the register book. No such memorandum shall be entered
in the register book, until application has been made on that behalf
and the prescribed fee paid, and such evidence as the registrar-general
may require has been furnished that the land would, if not under the
Ordinance, have been bound by such charge.

103. Nothing in this Ordinance contained shall alter or affect the
order in which real and personal assets respectively are now applic-
able in or towards the payment of funeral and testamentary expenses,
debts or legacies.

104-107. [Eng. 1897, s. 3, Own. & Inc. 336, 337, substituting
"transfer" for "conveyance," and continue:] Such assent shall be
retained by the registrar-general and registered: provided that if
such personal representatives are not registered as proprietors of the
land intended to be disposed of, the registrar-general may refuse to

682 APPENDIX OF STATUTES.

register such persons as so entitled, until the will of the deceased
proprietor, or the letters of administration to his estate, or an office
copy thereof, and any other evidence which he may require, have been
supplied.

[108: N. S. W. 1900, s. 93.]

109. Nothing in this Ordinance shall render real estate liable to
probate duty or legacy duty, or exempt real estate from succession
duty.

PART XI. Trusts.

110. The registrar-general shall not make any entry in the
register book of any notice of trusts, whether expressed, implied or
constructive, but trusts may be declared by any instrument or deed,
which instrument or deed may include [other lands, N. S. W. 1900, s.
82 J; and such instrument may be registered in the register of deeds
in accordance with the laws relating thereto, but such registration
shall not be deemed to affect any purchaser from a registered pro-
prietor with notice of any trust affecting land under this Ordinance.

111. If the registered proprietor of any land be a trustee, and the
person beneficially entitled thereto would, if the land were not under
the Ordinance, be entitled to require that the legal estate be vested in
him, such beneficiary may take out a summons or commence an action
to compel the registered proprietor to transfer the said land, and on
the hearing of such summons or action an order may be made direct-
ing the registrar-general, on payment of the proper fee, to register
such beneficiary as proprietor, and to issue to him a certificate of title.

PART XIII. Instruments — their execution, correction, substitution.

loss, &c.

119A [1908, s. 2]. Every instrument signed by the registered pro-
prietor, mortgagee, incumbrancer, or other person having any estate
or interest in any land under this Ordinance, and attested by one wit-
ness at least (whose occupation or other description, and address or
place of residence, shall be specified with reasonable certainty) shall
be deemed to be duly executed within the meaning of this Ordinance;
and every instrument so executed shall, when registered, have the
force and effect of a deed made by the parties signing the same.

[120, 121: N. S. W. 1900, ss. 106, 107, concluding: ". . . . at
any foreign place, then before the British charge" d' affaires, consular
officer, or notary public resident at such place."]

122 [1916, s. 2]. The execution of any such instrument may be
proved before any such person as aforesaid, by the oath or statutory
declaration of a witness attesting the signing thereof: provided that
the registrar-general may refuse to register any instrument executed
by a person signing his name in foreign characters, or by making Qis
mark, unless the same bears upon it a certificate by a barrister, or
conveyancer, or by a justice of the peace, or by a duly licensed inter-
preter, that he has explained, or caused to be explained, the true pur-
port of such instrument to such person so signing as aforesaid, and
that he is satisfied that such person understands the same.

THIS I DAD AyU TOBAGO. gg3

123 11908. s. 5 J. The registrar-general, notary public or other
person before whom such witness shall prove such signature as afore-
said, shall endorse upon such instrument a certificate in the form in
the schedule to the Real Property Ordinance 1908.

Tr. 1913, s. 2. No instrument of transfer or mortgage, or whereby
any incumbrance is created, or mortgage is transferred, discharged or
released, and no caveat, shall be registered . . . unless it bears the
signature of some barrister, or of some solicitor and conveyancer, as
having prepared such instrument: provided always that the provisions
of this section shall not apply to an instrument or caveat the execution
whereof took place wholly out of the colony.

[125: N. S. W. 1900, s. Ill, inserting, after "may"' and before
•' issue to such applicant," the words " on the order of a judge, to be
obtained by the applicant on a summons.*']

PART XIV. Indefeas-ibility of title and remedies of persons injured.
[130: N. S. W. 1900, s. 43.]

132. No action for the recovery of any land shall lie or be sus-
tained against the person registered as proprietor thereof under the
provisions of this Ordinance, except in any of the following cases, that
is to say: —

(1) The case of a lessor [N. S. W. 1900, s. 124. adding at end of
section]: provided that nothing herein contained shall prevent a
plaintiff from obtaining, in an action, judgment for specific perform-
ance of a contract for the sale or lease of land under this Ordinance;
nor prevent a beneficiary, entitled to call for a transfer from a trustee,
from obtaining a decree for such transfer or such vesting order as
hereinbefore mentioned.

[139: N. S. W. 1900, s. 130, substituting for sub-s. 2: "... any
person being under the disability of coverture, infancy or unsoundness
of mind, may bring such action within six years from the date on
which such disability shall have ceased: . . . in no case shall any
such action be brought after twenty-seven years shall have elapsed
from the accrual of such right of action."]

141. The Crown or the assurance fund shall not [N. S. W. 1900.
s. 133.]

[Sched. 2 contains " Rules for the construction and certifying of
plans," &c.

Sched. 4 contains some rules as to procedure on summons, and
scale of fees chargeable by legal practitioners for conveyancing work.]

684 APPENDIX OF STATUTES.

LEEWARD ISLANDS.

Title by Registration Act 1886

(No. 1 of 1886—1914 Revision).

Note. — This statute is a consolidation or revision of the original
statute (No. 2 of 1886) and amendments enacted from 1887 to 1914.
In its drafting it differs from the statutes of all other jurisdictions, and
no single section of any other such statute seems to have been repro-
duced exactly. In substance the statute does not differ greatly from
the Australian statutes, and the system embodied in it resembles gener-
ally those set up in Australia and Canada. Transfers, caveats, pro-
duction and rectification of instruments, &c, are provided for much
as in an Australian jurisdiction (e.g. New South Wales or Victoria).
Qualified and possessory title are provided for after the English
model. The remedy of a mortgagee is by judicial sale only. No pro-
vision is made for short forms of covenants, little for implied cove-
nants, and none for inserting additional clauses in instruments. The
sections here printed are those which differ materially from enact-
ments in other registration statutes; many less important sections,
and some relating to details of procedure, have also been omitted.

1. . . . (3) Whenever any of the expressions defined in
schedule A occurs in this Act, it shall, unless the context otherwise
requires, have the meaning assigned to it in the said schedule.. . .
(5) Whenever it is provided by this Act that an instrument shall be
in a specified form, it shall be understood to mean that the instrument
shall be in that form, or as near thereto as the circumstances admit.

PART I. Indefeasible certificates of title.

5. The date of every first certificate of title shall be the day and
hour at which the registrar of titles shall place the certificate of title
in the current volume; up to which period of time the former title
shall be held to continue to exist, and immediately after to cease and
determine, and all deeds upon which the land to which the certificate
of title relates had been heretofore held, or by which any mortgages or
incumbrances upon the said land were shown to exist, shall cease to
have any force or effect, and shall be preserved in the custody of the
registrar of titles, or in such manner as the chief justice, in his
capacity of keeper of the public records, shall under the provisions of
the Registration and Records Act 1881, from time to time direct.

6. (1) From and after the time when any land is brought under
the operation of this Act, all dealings with such land shall be in the
forms and governed by the principles set forth in this Act; and all
such dealings shall take effect from the date and act of registration,
and not from the date of the execution or delivery of any instrument
or document, or otherwise, save as in this Act provided. It shall not
be necessary fro register under the provisions of the Registration and

LEEWARD ISLANDS. gg5

Records Act 1881, dealings with lands brought under the operation of
this Act which are in accordance with the provisions of this Act.

(2) Dealings with lands brought under the operation of this Act,
whiih are not in accordance with the provisions of this Act, shall oper-
ate ss contracts only, and shall not confer any right in respect to the
land, except the right of enforcing the contract as against the parties,
and persons claiming, otherwise than as purchasers or mortgagees for
value, under such parties.

7. Whenever a grant of land is made by the Crown, the grantee
may elect, instead of receiving the grant, to have a certificate of title
issued to him in lieu thereof, and on notice in writing of such election
being given to the colonial secretary, or to the administrator or com-
missioner of the presidency in which the land is situate, the grant
instead of being given to the grantee shall be delivered to the registrar
of titles, with a direction endorsed on the grant and signed by the
colonial secretary, or by the administrator or commissioner as the
case may be, that a certificate of title be issued to the grantee. When-
ever a Crown grant is so delivered to the registrar of titles, he shall
without payment of further or other fees issue to the grantee a certifi-
cate of title in respect of the land comprised in the grant.

8. All certificates of title granted under this Act, and all notings
of mortgages and incumbrances on the same, shall be indefeasible.

9. In every certificate of title a registered proprietor «or proprie-
tors shall be set forth of the land to which it relates, who shall have the
absolute power to deal with the land in any manner in which land may
be dealt with under this Act; any rights for life, or rights in the land
for terms of years, or any other limited or conditional rights, being
hereby declared to be incumbrances on the said lands, and requiring
to be constituted as such in the manner in which incumbrances are
constituted under the provisions of this Act.

10. The right of the registered proprietor, named in a certificate
of title to the land comprised in a certificate of title granted under
this Act, shall be the fullest and most unqualified right which can be
held in land by any subject of the Crown under the law of England,
and such right cannot be qualified or limited by any limitations or
qualifications in the certificate of title itself, unless such limitations
and qualifications were inserted in any Crown grant in place of which
the certificate of title has been issued, or as in the case of mortgages
and incumbrances, when these are noted on the certificate of title.

11. Notwithstanding anything hereinbefore contained, no certifi-
cate of title heretofore issued, or hereafter to be issued, under the pro-
visions of this Act shall, save as provided in section 25 hereof, in any
way affect any rights of common, rights of way, or rights to, or to be
exercised over, any ponds, streams, or other water, or any other ease-
ments or profits a prendre, or the ownership" of any public road.

PART II. How lands under existing titles may be Drought under

this Act.

12. Any owner of land not yet brought under the operation of
this Act, who desires to have his title to the land made indefeasible
according to the provisions of this Act. may present a request to the
registrar of titles for the circuit in which the land is situate, for the

68G APPENDIX OF STATUTES.

issue to him of a certificate of title in respect of the land described in
the request, provided that, where the owners are joint tenants, tenants
in common, or coparceners, the request shall be presented by all.

13. The registrar of titles shall thereupon submit such titles,
deeds and documents to a judge. . . . ■

14. Where it has not been satisfactorily ascertained from the
records and the deeds and documents presented that the person by
whom a certificate of title has been requested is such owner, and such
person has been in possession of the said land for the term of twelve
years preceding the date of the request, then for the purposes of this
Act, he shall be taken as the owner thereof, and the certificate of title
shall issue to him accordingly. But such possession shall be a posses-
sion as owner, and not as an incumbrancer holding a life interest, or
interest for a term of years, or other less estate.

17. Any person who claims to be the proprietor of any land, or to
be interested in any mortgage or incumbrance, may enter a caveat in
the office of the registrar of titles, either forbidding the issue of any
certificate of title for any land to any specified person, or claiming that
a note may be made upon any certificate of title in regard to any
mortgage or incumbrance, or in any other manner stating an interest
in any land, and such caveat shall be in form 2 in schedule B, and the
caveator shall be heard before the certificate of title is issued, or the
mortgage or incumbrance noted or rejected.

PART III. 'Titles to land assurance fund.

19. (1) Any person aggrieved by the issue of a certificate of
title under this Act may, with the consent of the Governor, institute a
suit as plaintiff against the attorney-general as defendant, claiming
damages for the injury he may have sustained. Every such suit shall
be governed by the provisions of the Crown Suits Act 1907, except that,
if the plaintiff shall recover any damages, the same shall be paid out
of the titles to land assurance fund.

(2) Where any person has, by wilful misrepresentation or other-
wise, obtained a certificate of title to any land to be wrongfully issued,
the registrar of titles shall call in the same to be cancelled, in any
case in which the rights of a transferee or incumbrancee, who has
taken bona fide for value without notice, will not be prejudiced
thereby: and where damages have been recovered against the attorney-
general in any such suit as in this section is mentioned, the attorney-
general, on behalf of the general government of the colony, shall sue
the person who has obtained the certificate of title for the issuing of
which such damages have' been recovered, for damages to be paid into
the said fund: provided always, that if the person so sued has not
obtained the said certificate by fraud, and can show that he has not
been benefited by the issue of such certificate to the whole amount of
the damages recovered against the Crown, he shall not be liable to a
greater amount than that by which he has been so oenefited: provided
also, that no transferee or incumbrancee who has taken bona fide for
value, without notice, subsequent to the issue* of the first certificate of
title, shall be liable in any action for damages.

LEEWARD USLAXDti. 687

PART IV. The transfer and transmission of land.

20. When land has been brought under the provisions of this
Act, the registered proprietor thereof, if he desires to transfer it to
another on sale or otherwise, shall execute a memorandum of transfer
in form 5 in schedule B, and such memorandum of transfer shall be
presented to the registrar of titles.

24. Where any mortgages or incumbrances shall be noted on the
certificate of title issued to a transferee, the covenant shall be implied
that the transferee has accepted the land subject to such mortgages
and incumbrances, and that he will pay the interest accruing thereon,
and discharge the principal sums for which such mortgages and
incumbrances have been granted, and indemnify the transferor from
the payment of the same in all time to come.

26. (1) Where the registered proprietor of any land desires to
transfer the same to trustees, he may register under the Registration
and Records Act 1881 any deed or document constituting the trust,
but he shall, of equal date therewith, present to the registrar of titles
a transfer to the persons named as trustees, in the ordinary form of an
absolute transfer to individuals, with the words " as trustees " added
to their description, and also with the words " with survivorship," or
the words " without survivorship,'' according as the trustees are to con-
tinue to act, or not to continue to act, on the death of one or more of
their number, and the registrar "of titles shall thereupon issue to the
transferees a certificate of title without any reference to the trust deed,
and they shall be the absolute registered proprietors of the said land,
as regards the records of title, as fully and freely as any other regis-
tered proprietors: provided always, that any cestui que trust under
the trust deed shall have the right to present a caveat to the registrar
of titles to prevent any dealing with the land by the trustees in a
manner inconsistent with the provisions of the trust deed.

(2) Where, in the deed of trust, trustees are named with the right
in the survivor or survivors to act after the death of one or more of
their number, the survivor or survivors may require the registrar of
titles to issue to him or them a new certificate of title in his or their
names as registered proprietor or proprietors of the land; and when
the said trustees are nominated as such without right in the survivor
or survivors to act. the cestui que trust, on the death of one or more
of the said trustees, shall have the right to require the issue of a cer-
tificate of title to them as now the registered proprietors of the land.
In like manner, where new trustees have been assumed in virtue of
powers contained in a trust deed, or have been appointed by the court,
they shall have the right to require the issue to them of a fresh certifi-
cate of title.

27. Whenever the registered proprietor of any land shall die, and
shall leave any will disposing of such land, the land shall transmit to
the devisee or devisees thereof, and the registrar of titles shall, upon a
request being presented to him, accompanied by the probate of the
will or an office copy thereof, issue to the devisee or devisees a certifi-
cate of title thereof, noting on the certificate of title of the deceased
proprietor (the duplicate of which, in whose hands soever the same
may be. shall be delivered up to him) the date of the will, the date of
the death, and such references to the register of probate of wills as

G88 APPENDIX OF STATUTES.

may enable the same to be readily found, and cancelling the certificate
of title in favour of the deceased, — and the date of the title of the new
registered proprietor shall be held to draw back to the date of the
death of the former registered proprietor, whatever may be the date
of presenting the will to the registrar of titles.

28. (1) Where the registered proprietor of land has died intes-
tate, his heir may present a request to the registrar of titles for the
issue of a new certificate of title in his favour, and the registrar of
titles shall refer the matter to a judge, and if the judge shall be satis-
fied that the person applying is the true heir, the registrar of titles
shall issue such new certificate of title accordingly, following, as near
as circumstances will permit, the procedure prescribed in the last
preceding section.

(2) Where the judge shall not be satisfied that the person apply-
ing is the true heir, he shall give such directions in regard to the trial
of any question at issue, or such directions to the registrar of titles as
to the issuing or refusing of such certificate of title to the heir or the
person claiming to be heir, as may appear just.

29. When an administrator of estates shall be ordered under the
Unrepresented Estates Act 1884 to sell any land brought under this
Act, the administrator shall be entitled to demand from the registrar
of titles the issue to him of a new certificate of title in which shall be
added to his description the words " as administrator of estates," and
the same procedure shall be followed, as nearly as circumstances will
permit, as is hereinbefore prescribed in the case of transmission to
devisees.

31. Where a registered proprietor, incumbrancee, or mortgagee
of any land has been adjudicated bankrupt, or where the estate of a
registered proprietor, incumbrancee, or mortgagee has become the
subject of liquidation by arrangement under the Bankruptcy Acts for
the time being in force, the land, mortgage or incumbrance, as the
case may be, shall transmit to the trustee of the estate, in the case of
bankruptcy, as from the date of the order of adjudication, and in the
case of liquidation by arrangement, as from the date of the appoint-
ment of the trustee of the estate; and the registrar of titles shall, upon
the request of any such trustee as aforesaid, accompanied by the
documents proving the facts, being presented to him, issue to the
trustee a certificate of title in lieu of that in favour of the registered
proprietor so adjudged bankrupt or whose estate is in liquidation, as
the case may be, and the duplicate copy of the certificate of title in the
hands of such registered proprietor shall be delivered up to be can-
celled, and the same procedure shall be followed in the issue of the
new certificate, as far as the circumstances will permit, as is herein-
before prescribed in the case of transmission to devisees.

32. Where any person has become insolvent, and shall, either
under the authority of the Court or voluntarily, assign the whole of
his property to any assignee, administrator, or trustee on behalf of
his creditors, any land of which he may be the registered proprietor
shall transmit to the said assignee, administrator, or trustee; and
such assignee, administrator, or trustee shall request a certificate of title
to be issued in his name; and the registrar of titles, upon such request
being presented to him with the deed or instrument of assignment, or

LEEWARD ISLANDS. ggy

such office copy thereof as he may consider sufficient, shall issue a
new certificate of title to such assignee, administrator, or trustee in
the manner hereinbefore provided, as nearly as circumstances will
permit.

33. Whenever any mortgage or incumbrance shall transmit in
any of the manners above set forth, the person in whose favour the
same shall have transmitted shall be entitled to present to the regis-
trar of titles a request, accompanied by the deed, document, or writ-
ing, or certificate of death upon which such request is founded, to
alter the noting or marking of any mortgage or incumbrance upon
any certificate of title, from the name of the previous mortgagee or
incumbrancee to the name of such person as being then entitled to the
mortgage or incumbrance; and the registrar of titles shall, in dealing
with such request, proceed, as far as circumstances will permit, in
the manner already herein provided in regard to transmissions of
land, and shall make such noting or marking upon the certificate of
title of such land (the duplicate of which in the hands of the regis-
tered proprietor, or any other person, he shall be entitled to call in
and demand for the purposes of this section) as shall set forth the
parties truly entitled to such mortgage or incumbrance, and shall can-
cel any foreier noting, and shall either re-issue the same certificate of
title to the party entitled thereto, or a new certificate of title, as shall
appear to the registrar of titles desirable and proper.

34. "Where any person has acquired, or claims to have acquired,
under the Real Property Limitation Act 1877, the ownership of land
brought under the operation of this Act, he shall present a request to
the registrar of titles to have a certificate of title issued to him in lieu
of the registered proprietor in the original certificate of title, and the
person who has acquired, or claims to have acquired, such ownership
shall not be entitled to maintain any suit in regard to such land until
he shall have obtained a certificate of title thereto. When a request
for such a certificate of title is presented to the registrar of titles, he
shall state a case to the Court, and shall not issue a certificate of title
on such request until he has received the direction of the Court
thereupon.

PART V. Land tax, mortgages and incumbrances; and the sale ok

INCUMBERED LAND.

Land tax.

35. (1) Land Tax now imposed, or hereafter to be imposed, by
any Act or Ordinance of any presidency of this colony shall be a first
charge on the land on which the said tax is made payable by the said
Act or Ordinance, where such land is now held under, or is hereafter
brought under, this Act.

(2) Such charge shall rank before all mortgages, incumbrances
and interests already created and constituted, or hereafter to be
created and constituted, by and under this Act, and the Government
may take all such proceedings under this Act for the recovery of land
tax now due and unpaid, or hereafter becoming due and unpaid, by
sale or otherwise of the land or estate on which the said tax is so made

090 APPENDIX OF STATUTES.

payable, as a mortgagee or incumbrancee may now take under this Act
when a mortgagor or incumbrancer has failed to perform the condi-
tions of a mortgage or incumbrance, or as when a mortgagee or incum-
brancee may lawfully demand the repayment of the sum lent on mort-
gage, or the amount or provision secured by an incumbrance.

(3) The registrar of titles shall make the following noting, as a
first noting, on all certificates of title hereafter issued by him: —

' Charge in favour of the Government for land tax now due or
hereafter becoming due."

(4) Every certificate of title heretofore issued by the registrar
shall be deemed and taken to be noted with the noting in the last pre-
ceding section mentioned.

Mortgages.

36. A mortgage may be created and constituted over any land, by
the noting of the same by the registrar of titles on the duplicate cer-
tificate of title, both that in the registry and that in the hands of the
registered proprietor.

37. The warrant to authorize the registrar of titles to make any
such note upon the certificate of title shall be a memorandum of
mortgage in form 8 in schedule B, which shall be presented to the
registrar of titles by the mortgagor or mortgagee, or by those author-
ized to act on their behalf. The duplicate certificate of title issued to
the registered proprietor, or where the mortgage extends over lands
contained in more than one certificate of title, then all the duplicates,
must at the same time be handed to the registrar of titles to be noted.

38. The date of the mortgage shall be the date of presenting the
memorandum of mortgage to the registrar of titles.

39. When a memorandum of mortgage has been presented, the
registrar of titles shall proceed forthwith to note the chief facts set
forth therein upon the duplicate certificates of title, according to the
form of noting of mortgages upon the form of the certificate of title
in schedule B.

[By the Hurricane Loan Title by Registration Act 1900, certain
mortgages are to be effective, though not in statutory form, and others
when registered are to constitute a first charge on the land.]

44. A mortgage cannot be created or constituted for any undeter-
mined sum. but only for the sum expressly stated in the instrument,
and actually advanced.

45. The specific sum lent upon the pledge of the land shall be
payable at any date which may be fixed in the memorandum of mort-
gage, and if not repaid at that date, the mortgagee may, at any time
thereafter, take steps for the sale of the land in manner hereinafter
provided.

46. The mortgage shall be held to extend over the land contained
in the certificate of title upon which it is noted, or any part of such
land described in the memorandum of mortgage, and all rents thereof,
and upon all fixtures on such land, and upon labourers' houses, mills,
buildings, stables, cattle sheds, outhouses, and all erections used for
estate purposes, whether fixtures or not, and upon all trees and
shrubs, whether bearing fruit valuable in commerce or not, and
upon all growing crops on the land belonging to the mortgagor,

LEEWARD ISLANDS. (,<)]

and all agricultural instruments, and appliances of sugar or other
mills, and all stock belonging to the mortgagor, whether used for work
and draught purposes, or grazing on the land, and over all contracts
for labour to be performed on the land in favour of the mortgagor.

47. The mortgagor shall have the free use, enjoyment and man-
agement of all the property pledged, and it shall be his duty to care
for the same, and keep all in workmanlike order and good condition,
and for this purpose, to deal with all personal chattels accessory to
the land, and to sell and replace stock as a good husbandman, but not
to deteriorate the condition of the land, and to use his utmost skill
in the profitable cultivation of the soil: and he shall have the right to
raise temporary advances for crop purposes by pledging the crop,
when cut or plucked for sale or manufacture, in the manner herein-
after provided.

48. The mortgagee cannot, as of right, on non-payment of princi-
pal or interest, and with or without notice, enter into the possession
of the land with the view of working the same until the mortgage be
paid off, but by consent of all parties interested the mortgagee can
so enter subject to an accounting for the rents and profits of the land,
as of land belonging, not to the mortgagee, but to the registered pro-
prietor thereof.

49. The mortgagee shall not be entitled to the duplicate certifi-
cate of title as of right pertaining to him as mortgagee, but he shall
be entitled to demand from the registrar of titles, at the cost of the
mortgagor, a certified copy of the memorandum of mortgage, with a
copy of the noting of the mortgage upon the certificate of title attached
thereto. The duplicate certificate of title shall remain with the reg-
istered proprietor.

Incumbrances.

50. An incumbrance shall be created and constituted over and
upon any land, in the same manner as a mortgage, by the noting there-
of by the registrar of titles upon the certificate of title.

51. The warrant to authorize the registrar of titles so to note
any certificate of title shall be a memorandum of incumbrance, which
shall be in one of the forms numbered 9 in schedule B.

55. An incumbrance which is not specially limited to a payment
out of revenue, or other special form of incumbrance of a like nature,
shall extend over the land contained in the certificate of title upon
which it is noted, and upon all fixtures, houses, outhouses, growing
crops, stock and other property over which a mortgage extends.

56. For the purposes of this Act. and in order that all the rights
granted, which to any important extent affect the land, may appear
upon the certificate of title, a lease for three years and upwards shall
be deemed an incumbrance, and shall be constituted by a noting on
the certificate of title in the same manner as an incumbrance.

57. The warrant to authorize the registrar of titles to make such
a noting of a lease shall be a memorandum of lease in form 10 in
schedule B.

58. No lessee shall be deemed an incumbrancee for the purpose of
suing forth or prosecuting any sale of the land, in the manner pro-
vided in this Act for incumbrancees other than lessees, for any breach

692 APPENDIX OF STATUTES.

of the conditions of his lease, but he shall be left to his ordinary
legal remedies.

Equitable mortgages.

59. An equitable mortgage may be constituted by deposit of the
certificate of title, and when a duplicate certificate of title is so de-
posited to cover any liability incurred by the registered proprietor, the
registrar of titles shall not require the holder thereof to deliver up the
same for the purpose of noting thereon any mortgage or incumbrance
subsequent to the said deposit, or for the purposes of any transfer.
If the land shall transmit by the death of the registered proprietor
while the equitable mortgage subsists, any new certificate of title
which may be issued consequent thereupon shall be deposited with
the equitable mortgagee in lieu of the certificate of title held by him.

60. An equitable mortgage shall be constituted and created over
the land contained in the certificate of title deposited, and over all
fixtures, houses, outhouses, growing crops, stock, and other property
over which a mortgage extends; and shall rank in its order according
to the date of presenting a caveat, as hereinafter provided, to the
registrar of titles to prohibit dealings with the land while the equit-
able mortgage shall exist.

61. An equitable mortgage may be constituted by the deposit of
the certificate of title, either for the repayment of a definite sum then
advanced, if placed to the account of the borrower, or to cover ad-
vances to be made, or for the purpose of covering advances made or
to be made, or liability for sums due.

62. The equitable mortgagee, if he desires to prevent any other
creditor obtaining a preference over such effects comprised in his
equitable mortgage as may be secured by bill of sale or otherwise,
shall forthwith present a caveat, in manner hereinafter provided, to
prevent any dealing with the land and the things accessory thereto,
as already set forth, over which his equitable mortgage extends; but
he may refrain from presenting such caveat, and in that case, his
rights as regards the registered proprietor shall not be adversely
affected thereby, but he will not have any preference over a more dili-
gent creditor whose security may be meantime completed.

63. An equitable mortgage may be converted into a mortgage,
with all the powers and privileges of a mortgagee against the reg-
istered proprietor by way of sale of the land and otherwise, by the
equitable mortgagee obtaining the judgment of the Court fixing the
amount due to him by the registered proprietor, or obtaining from
the debtor a writing accepting a specific sum therein stated as being
due by him to the creditor under the equitable mortgage. Whereupon
the equitable mortgagee may present the judgment or the writing to
the registrar of titles, and request him to note upon the certificate of
title a mortgage in his favour for the amount of the judgment or
accepted balance due, the date to draw back to the date of the caveat,
which shall be removed and the noting of the mortgage put on the
certificate of title in place thereof. The judgment or writing shall be
filed as the authority to the registrar of titles for so acting. Where
no caveat has been entered, the date of the mortgage shall be the date
of presenting the judgment or writing to the registrar of titles.

LEEWARD ISLANDS. 693

68. A lease for three years and upwards may be transferred by
the execution of a memorandum of transfer in form 13 in schedule B,
and the noting thereof by the registrar of titles on the certificate of
title.

69. The date of the transfer shall be the date of the presentation
of the instrument, and the duties of the registrar of titles, in regard
to the instrument presented, shall in all respects be similar to those
provided for in the case of the transfer of a mortgage or incumbrance.

70. Where a lease has come to an end by effluxion of time, or has
been determined by consent or by the judgment of the Court, the
registered proprietor may present a request to the registrar of titles
to make such noting on the certificate of title as shall indicate the fact
that the lease has ceased to exist, or to cancel the noting of the lease in
such manner as the registrar of titles may deem shall best set forth
the actual state of the facts in regard thereto.

Sale of incumbered lands or estates.

71. When a mortgagor or incumbrancer has failed to perform the
conditions of the mortgage or incumbrance, or when the mortgagee
or incumbrancee may lawfully demand the repayment of the sum lent
on mortgage, or the amount or provision secured by the incumbrance,
the mortgagee or incumbrancee shall serve, or cause to be served,
upon the registered proprietor a formal notice to pay off in form 14 in
schedule B, requiring him to perform the acts therein required within
sixty days from the date of service. Where the registered proprietor
is resident abroad, and there is no one in the colony holding his power
of attorney, he shall be served in the manner in which a defendant
out of the jurisdiction may be served under the Supreme Court Act
1913.

72. If the registered proprietor shall not within the time speci-
fied pay off the mortgage or incumbrance, or do the acts required of
him in the notice to pay off, the mortgagee or incumbrancee may seize
the land contained in the certificate of title on which the mortgage or
incumbrance is noted, with the things accessory thereto as set forth
and enumerated in this Act as falling within the mortgage or incum-
brance. •

73. The seizure shall be complete as regards the registered pro-
prietor by the bailiff appearing on the premises with orders to seize,
but, in evidence of his act, he shall place in the hands of the registered
proprietor, or leave at his dwelling place, or if resident abroad in the
hands of his attorney acting under his power of attorney, or if he has
no such attorney, then the mortgagee or incumbrancee, in the manner
in which a defendant out of the jurisdiction may be served under the
Supreme Court Act 1913, shall serve the registered proprietor with an
act of seizure, in form 15 in schedule B, in which shall be set forth,
not only the land seized, but an inventory of the things accessory to
the land over which the mortgage or incumbrance extends; but where
the registered proprietor resides abroad, it shall not be necessary to
delay proceedings because of such service.

74. The mortgagee or incumbrancee shall also forthwith present
to the registrar of titles a caveat of seizure, in form 16 in schedule B,
which the registrar of titles shall note upon the certificate of title in

G94 APPENDIX OB1 STATUTES.

the same manner as is provided for other caveats, to prohibit all deal-
ings with the land seized until the caveat be removed or withdrawn.

75. If the debt shall not be paid off or discharged, or the acts
required in the notice to pay off shall not be performed, and no new
arrangements shall be made within thirty aays from the date of sei-
zure, the mortgagee or incumbrancee shall lodge in the registry of the
Supreme Court articles of sale, in form 17 in schedule B, of the said
land, and the things accessory to the said land over which the mort-
gage or incumbrance extends, either in one lot or in more lots, as may
be thought most likely to bring the highest price, and shall by sum-
mons call upon the registered proprietor, and all other mortgagees
and incumbrancees, to appear before the Court on a day to be specified
in the summons, being not less than three and not more than ten days
after the date of the summons, to settle the said articles of sale, to
estimate an upset price, to fix the day of sale, and to adjust the an-
nouncements of sale and the mode of publication thereof.

77. In settling the articles of sale, the Court shall cause to be
inserted therein, and in the announcements, provisions which shall
reserve the rights of all persons holding estates for life or lesser estates
which entitle such incumbrancees to the possession and enjoyment of
the property, if their incumbrances shall be entitled to priority over
the mortgagee or incumbrancee prosecuting the sale, unless the consent
of such prior incumbrancees shall have been obtained to an unreserved
sale; in which case the rights of the incumbrancee shall be valued
and dealt with in the manner set forth in sections 53 and 54 hereof.

78. All lands so appointed to be sold shall be sold at the registry
of the Supreme Court, or if rendered necessary by the number of
bidders, in the court house itself, and the registrar of the Supreme
Court shall preside at the sale, and shall take biddings for the lands;
each bid being written down and signed by the bidder, and the highest
bidder shall be accepted as the purchaser. When a higher bid has
been made and accepted, the lower bids shall cease to be binding, even
if the higher bidder fails to carry out the purchase.

82. The Court shall, at any time after payment of the price, and
not later than the settling of the scheme of division, order and direct
the registrar of titles to issue to the accepted purchaser a certificate
of title to the land sold, free from any noting of the mortgages and
incumbrances and caveat of seizure on the former certificate of title,
except those incumbrances which have been reserved under section
77 hereof (the date of the new certificate of title to draw back to the
day on which the offer was accepted), and to cancel the former cer-
tificate of title (the duplicate of which shall be delivered up to the
registrar of titles by the former registered proprietor) ; and the land
contained therein shall thereafter be held fully and completely freed
and purged from the former mortgages and incumbrances, except
those reserved as already provided for.

83. The registered proprietor, or his attorney or manager on the
spot, shall, as a general rule, be named by the bailiff to take charge of
the property seized, and during the necessary delay and until the land
be sold, shall carry on the cultivation of the land, and the preparing
and reaping of the crops, as before the seizure, but where, from the

LEEWARD ISLANDS. gy5

necessity of obtaining advances for the pay of labourers or otherwise,
and the stoppage of his credit, the registered proprietor shall not be
in a position to do so, then the mortgagee or incumbrancee who has
made the seizure shall apply to the Court to appoint a receiver, to
manage and carry on the land or estate until a sale be effected, or the
seizure paid off.

87. Any lease for less than three years of any portion of the land
seized made after the seizure shall be ipso facto null, and no lease for
three years or upwards can be registered in face of the caveat of
seizure. All rents due for any portion of the land seized shall be paid,
after seizure, into the registry of the Supreme Court.

93. The mortgagee or incumbrancee prosecuting the sale may
bid, and all other mortgagees and incumbrancees; but the following
persons are incapacitated from bidding or purchasing, either in their
own persons or by means of a third party; viz., any judge of the
Supreme Court, any registrar of the Supreme Court or any of his
clerks, the solicitor having charge of the sale, and any person notori-
ously in insolvent circumstances. Any bidding or purchase made by
or on behalf of any of the above persons shall be absolutely null and
void.

Crop advance icarrants. t

95. The security of the mortgagee and incumbrancee over the
land, stock, growing crop, and other things accessory to the land, here-
inbefore enumerated, shall not be held to extend over the crop when
cut or plucked, but the mortgagor or incumbrancer shall deal there-
with as a good husbandman to sell the crop to the best advantage, and
shall, from the first and readiest of the moneys realized therefor, pro-
vide for the payment of the interest due, or to become due, on the
mortgages and incumbrances for the year, and for payments consti-
tuting incumbrances.

96. The registered proprietor shall be at liberty to deal with the
sugar, cocoa, coffee or other crop in order that it may be a pledge for
the repayment of advances made for the purpose of providing the
labour and supplies essential to the production of the crop, provided
always that, up to the period of the crop ceasing to be a growing crop,
the right of the mortgagee or incumbrancee, under his pledge of the
land and estate, to seize and sell the land with the growing crop be-
longing to the registered proprietor, is preferable to all others.

PART VI. Judgments.

106. (1) Where any registered proprietor, mortgagee or incum-
brancee. or the estate or right of any registered proprietor, mortgagee
or incumbrancee in or over any land brought under this Act, is liable
to the payment of a judgment debt, the Court may, at any time after
the date of the judgment, on the application of the judgment creditor,
make an order for the sale of the estate or right of such registered
proprietor, mortgagee or incumbrancee in or over the said land: pro-
vided that, if it is proved to the satisfaction of the Court that the

696 APPENDIX OF STATUTES.

estate or right in question is of the value of £500 or upwards, or
where the application is for the sale of the estate or right of a regis-
tered proprietor, that, of the land in question, forty acres or more are
under cultivation, no order of sale shall be made hereunder, except
with the consent of such registered proprietor, mortgagee or incum-
brancee, until the expiration of six months after the date of the appli-
cation; and provided further that, on any such application, the Court
instead of making an order of sale may order the amount due to be
levied by the appointment of a receiver, or otherwise, as it shall think
fit.

(2) In this section, —

"Judgment" means judgment entered in the Supreme Court:
provided that any other judgment to which the provisions
of section 8 of the Judgments Act 1907, apply, and in
respect of which the provisions of the said section have
been complied with, shall also be deemed a judgment
within the meaning of this section; and
" Judgment creditor " means any person to whom any
money, including money due for costs, is for the time
being payable under any such judgment.

109. (1) No judgment for the payment of any money or costs shall
constitute such money or costs a charge upon the estate or right of
any registered proprietor, mortgagee, or incumbrancee in or over any
land brought under this Act, until an order for the levying of such
money or costs, or some part thereof, by the sale of such estate or
right, or otherwise, has been obtained and registered; and thereafter,
the amount ordered to be levied shall be a charge on such, estate
or right, subject to charges having priority

(2) Where, after an order has been registered under this section,
entry of satisfaction of the judgment is made, such entry shall be reg-
istered, and thereupon the order shall lapse.

110. After the expiration of three months from the date of reg-
istration of an order of sale, the order shall cease to be a charge upon
the estate or right in question, unless such order shall have previ-
ously been put in force.

PART VII. Caveats.

111. A caveat shall, subject to the provisions of sections 17 and
74 of this Act. be in form 23 in schedule B, and shall be verified by the
oath of the caveator, or his solicitor, or person acting under the power
of attorney of the caveator, and shall contain an address within the
colony at which notices may be served on the caveator.

112. Any person claiming to be entitled to stay the registration of
any dealing in land, until his rights therein shall be recognized and
registered, may present a caveat to the registrar of titles.

113. The registrar of titles shall register such caveat in the same
form and manner as an incumbrance affecting the land set forth in
the caveat, and the date of registration shall be the date of the pre-
sentation of such caveat, and for the purpose of such registration, the
registrar of titles shall have the right to demand the duplicate certifi-
cate of title from the possessor thereof, in order that the caveat may
be noted thereon as well as on the duplicate in the register.

LEEWARD ISLANDS. 697

PART VIII. Registration and confirmation of qualified titles and

POSSESSORY TITLES.

Registration of qualified titles and possessory titles.

127. The term " certificate of title" in the other parts of this Act
shall include certificates of possessory title and certificates of qualified
title; and all the enactments contained in the other parts of this Act
with reference to certificates of title and any proceeding with refer-
ence to the same (save and except so much of section 5 which enacts
that, immediately after the issue of a certificate of title, all deeds upon
which the land to which the certificate of title relates has been there-
tofore held, or by which any mortgages or incumbrances upon the
said land were shown to exist, shall cease to have any force or effect,
and any provisions of any other parts of this Act which are inconsistent
with the provisions of this part of this Act) shall, with such modifica-
tions as may be necessary, apply to certificates of possessory title and
certificates of qualified title and all proceedings under this part of this
Act: provided that no person in whose name a certificate of qualified
title or a certicfiate of possessory title is issued, or who derives title
from any such person, or from any noting on any such certificate, shall
have, or shall by any dealing with the same confer, any greater right
than by such certificate is given to the person in whose name the cer-
tificate is issued.

Confirmation of possessory titles and qualified titles.

131. (1) Any person, in whose name as owner a certificate of
possessory title or of qualified title has been issued, may apply to the
registrar for the issuing of an indefeasible title under part II of this
Act, or of a certificate of qualified title, after the expiration of five
years from the date of the first publication of the notice in section 132
of this Act mentioned, unless due cause is shown in the meantime why
such certificate should not be issued.

(2) The application for the issue of a certificate under this section
shall be accompanied by an affidavit in such form, by such persons, and
with such information as to title and other particulars, as may be
prescribed, and shall include a statement to the effect that the deponent
has made due enquiry into the title, is not aware of any question or
dispute as to the title, except such (if any) as is specified in the affi-
davit, and believes that, except as aforesaid, the issue of the certificate
applied for will not prejudice any estate, right, or interest of any other
person in, to, or over the land.

133. (1) Any person desirous of showing cause against the issue
of a certificate of title under sections 130 to 135 of this Act may, at any
time within the period of five years from the date of the first publica-
tion of notice of the application for the issue thereof, petition the reg-
istrar, subject to the prescribed conditions as to security for costs and
otherwise.

134. (1) Within the prescribed time after the expiration of the
period of five years from the date of the first publication of the notice

698 APPENDIX OF STATUTES.

of application for the issue of a certificate of title under sections 130
to 135 of this Act, the applicant may finally apply to the registrar to
issue the certificate of title applied for.

(5) If, by reason of the issue of a certificate of title under sections
130 to 135 of this Act, any person is deprived of any estate or right in,
to, or over the land, or any money charged on the land, the person in
whose name the certificate of title is issued, his executors and admin-
istrators, shall be liable to pay that person, his executors, administra-
tors, or assigns, compensation for the same.

(6) If, on the receipt of the final application for the issue of a
certificate of title under sections 130 to 135 of this Act. the registrar is
satisfied that the certificate should only be issued subject to certain
exceptions or reservations, or as respects part only of the land, the
registrar shall issue the certificate of title either subject to those
exceptions or reservations, as on first registration of a qualified title,
or as respects that part only of the land.

(7) In the event of any change of ownership of the land during
the period between the date of an application for the issue of a certi-
ficate of title under sections 130 to 135 of this Act and the issue of
such certificate, the application shall not be deemed to have deter-
mined, but the person to whom a certificate has been issued as succes-
sor in title of the applicant may, if he thinks fit, proceed with the
application as if he were the original applicant.

(8) All mortgages and incumbrances endorsed on the original
certificate of title shall be endorsed Qn the certificate of title issued
under sections 130 to 135 of this Act, and, subject to any entry to the
contrary on such certificate, the issue of such certificate shall enure
for the benefit of any such mortgagee or incumbrancee.

135. (1) Where a certificate of possessory title or qualified title
has been issued, and any incumbrance or mortgage is endorsed thereon,
the incumbrancee or mortgagee may, if he thinks fit, after notice to the
person in whose name such certificate has been issued, apply to the
registrar to have a certificate issued under sections 130 to 135 of this
Act, and thereupon all the provisions of the said sections shall apply,
as in the case of an application by a person in whose name the original
certificate was issued.

(2) The costs of any proceeding under this section with respect
to an incumbrance shall be added to the incumbrance.

PART IX. Special powers and duties of registrars of titles, and

MODE OF REVIEWING THEIR DECISIONS.

PART X. Powers of attorney, attestation of instruments, dealings
abroad, and married women.

146. A power of attorney intended to authorize dealings with
land, if executed within the colony, may be in form 2 in schedule B.
If executed without the limits of the colony, it may be either in the
said form, or in any form in use in the colony, country, kingdom, or
place where the same bears to have been executed.

LEEWARD ISLANDS. 699

147. All instruments relating to land executed within the colony,
shall be attested by one witness, but it shall not be necessary to prove
the execution of the instrument by any declaration or certificate of such
witness. Wherever the registrar of titles shall have occasion to doubt
the authenticity of any signature to any instrument, he shall make
enquiry, and admit or refuse such instrument as he may deem proper,
subject to the direction of the Court if his decision shall be challenged
by the parties interested or any of them.

148. All instruments relating to land, executed without the
colony, shall be proved by the declaration or certificate of the attesting
witness before one of the official persons named in schedule C before
whom instruments may be proved out of the colony, or they may be
attested, without being proved, by such official person subscribing as a
witness to the signature.

151. Where any married woman executes or signs any instrument
under this Act as concurring therein, it shall be necessary, if the
instrument be executed out of the limits of the colony, that she appear
before a judge or other officer qualified to take the acknowledgments of
married women in the country, kingdom, or place where she may be,
or before any of the official persons appointed for the purpose of prov-
ing or attesting instruments under this Act, who shall examine her
apart from her husband, and take her acknowledgment that she signed
the said instrument of her own free will, and that she did not act under
any fear of, or compulsion from, her husband, and the person taking
the acknowledgment shall sign a certificate thereof.

152. Where any instrument under this Act, or any deed or docu-
ment relating to land, shall be executed by a married woman within
the colony, or signed by her as consenting thereto, it shall not be
necessary for the registrar to require any certificate of acknowledg-
ment of the nature above set forth, but if he has any doubt of the
genuineness of the signature, or has reason to believe that the instru-
ment was not executed or signed freely and voluntarily, he may make
such enquiries into the same as he may deem fit, and accept or reject
the document presented or offered for presentation.

168. In order that no lien or security may in any way affect land,
except mortgages and incumbrances which are borne on the face of
the certificate of title, no consignee of produce or other person who
may provide supplies or advances to any land or estate shall, from and
after the issue of a first certificate of title under this Act. as regards
the land therein, or, as regards other land throughout the colony, from
and after the 2nd day of August 1887, be entitled under any legal privi-
lege called consignee's lien or otherwise, to have his claims against the
land and estate paid by preference to other creditors, or to any mort-
gagee or incumbrancee, or, on the ground of any such privilege or lien,
to sue out or apply for the sale of any land or estate, as an incum-
brancee, but all persons, whether consignees of produce or otherwise,
who may advance moneys or supplies to any land or estate, shall be
left to recover the sums due for the same by ordinary process of law.
or by obtaining such securities as are provided by this Act or other-
wise known to the law; reserving always power to the Supreme Court,
when a receiver has been appointed to any land or estate, to order and

700 APPENDIX OF STATUTES. '

decree that such receiver shall, if he advances moneys or supplies to
the land or estate, have a lien over the price thereof, when sold for
payment of such advances and supplies, or to allow such preference or
lien to a receiver appointed by the Court, if the circumstances shall
call for it. although no such order or direction had been made before-
hand.

SCHEDULE A.

Incumbrance. — All burdens, securities, or liens upon land, arising
whether at law or in equity, other than mortgages, by which
the land is subjected to particular interests in favour of indi-
viduals, or the revenues thereof are affected for the payment
of annuities or temporary charges; and also any dealings with
land which, in the event of sale, would limit the free use and
disposal thereof by the purchaser, such as leases for three
years and upwards; and all temporary attachments by judg-
ments; and all caveats forbidding registration of dealings.
An incumbrance is made, constituted, or created by a memo-
randum of incumbrance or memorandum of lease, the noting
of a judgment or order, or the presentation of a caveat. The
instruments must be presented to the registrar of titles, and
must be noted by him on the certificate of title in the same
manner as mortgages. Incumbrances (except caveats and
judgments) may be transferred and discharged in the same
manner as mortgages, and the transfers and discharges must
be noted by the registrar of titles.

Incumbrancer. — The registered proprietor who makes, constitutes,
or creates such burdens or liens upon land, or the revenues
thereof, as above denned, and who executes the memorandum
of incumbrance.

Incumbrancee. — The person in whose favour a memorandum of
incumbrance is granted, and the incumbrance is noted on the
certificate of title by the registrar of titles.

Indefeasible. — The word used to express that the certificate of title
issued by the registrar of titles, and the notings by him
thereon, cannot be challenged in any court of law on the
ground that some person other than the person named therein
as the registered proprietor, is the true owner of the land
therein set forth, or on the ground that the mortgages or
incumbrances in the notings thereon are not mortgages and
incumbrances on the said land; except on the ground of
fraud connected with the issue of such certificate of title, or
the noting of such mortgages or incumbrances, or that the
title of the registered proprietor had been superseded by a
title acquired under the Real Property Limitation Act 1877,
by the person making the challenge. The word also means
that, the certificate of title being issued by the general Govern-
ment of the colony, the general Government of the colony is,

LEEWARD ISLANDS. 701

with the exceptions above mentioned, prepared to maintain the
title in favour of the registered proprietor, leaving any one
justly aggrieved by its issue to bring an action for money
damages against the general Government of the colony.

Land. — Land includes all the fixtures and buildings thereon, and
everything growing on the soil (unless otherwise specified),
with the exception of any wooden houses belonging to others
on the land, which are accustomed to be moved from place to
place, and any wooden houses the property of lessees, and, in
towns or villages, with the exception of such movable wooden
houses as are the property of the residents therein, and not of
the owner of the soil.

Owner. — The person having the legal right to land and the full
dominium thereof, but who has not become the registered pro-
prietor under this Act. This distinction is for the temporary
purposes of this Act only, as the registered proprietor is in
the fullest sense the absolute owner of the land.

Transfer. — The consent of a registered proprietor to the sale or
donation of the whole or part of the land contained in his cer-
tificate of title. The writing by which he signifies his consent
is called a memorandum of transfer, and shall be in form 5 or
6 in schedule B. Transfers can also be made of mortgages
and incumbrances, and of easements and incorporeal rights to
be carried out by the execution of a memorandum of transfer.
and the presentation of the same to the registrar of titles.

Transmit. — The act by which land contained in any certificate of
title passes to another proprietor by any other method than
by transfer. Thus land transmits to the heir or representative
of a deceased proprietor, the date of his death being the date
to be inserted in the new certificate of title in favour of the
heir, executor, administrator, or representative. The pro-
prietorship of land transmits also to the trustee appointed by
the Court under a bankruptcy.

Transmission. — The passing of the proprietorship of land in the
manner above set forth.

SCHEDULE C. (s. 148).

Notaries public; commissioners appointed under the Commission-
ers for Oaths Act 1912, if empowered by their commissions to admin-
ister oaths for the purposes of this Act; commissioners for taking oaths
and affidavits in the Supreme Court of Judicature in England and Ire-
land; the Lord Mayor, Lord Provost, mayor, provost, or chief magis-
trate of any city, town, or municipal corporation within Great
Britain, Ireland, the colonies of the United Kingdom, or the United
States of America; the Governor, or officer administering the

702 APPENDIX OF STATUTES.

Government, of any British colony or possession; any judge of any
court of record of Great Britain, Ireland, the colonies and possessions
of Great Britain, and the United States of America; and the ambassa-
dor, or officer performing the duties of that office, the consul, or con-
sular officer performing the duties of consul, in any foreign country
or possession, town or place, where such functionaries may be found.

All these may also witness the instrument, but if private parties
have been the witnesses to the signatures, one at least of the witnesses
must appear before one of the officers above named, and sign in his
presence a certificate that he saw the party sign, and that the signature
is of his proper handwriting.

Where an instrument signed out of the colony does not technically
agree with the provisions of this schedule, the registrar of titles, to
save vexatious and hurtful delays, may take the direction of a judge
upon the point in conformity with the provisions of this Act.

BRITISH HONDURAS. 703

BRITISH HONDURAS.

Land Tuxes Registry Act

(Consolidated Laws 1914, c. 179).

Note. — This statute is a chapter in the British Honduras Code as
revised in 1914, and re-enacts the corresponding chapter in the Code of
1887. The latter is referred to in Aust. Torr. Syst. 20, 809. The prin-
cipal parts of the statute itself and the schedules have been printed, the
omitted sections and parts of sections being merely procedural.

1. In the construction of this chapter (except when the context
or other provisions require a different construction) the word " reg-
istrar " shall mean the registrar-general, who as keeper of the public
records shall be registrar of titles to lands; the word "possession"
shall include receipt of the rents and profits; the word "land" shall
include houses, messuages, tenements and hereditaments, corporeal
and incorporeal; the word "incumbrance" shall mean any legal or
equitable mortgage in fee or for any less estate, and also any money
secured or charged on land by trust or by judgment, decree or order
of the Supreme Court, and also any legacy portion, lien or other
charge, whereby a gross sum of money is secured to be paid, and also
any annual or periodical charge which by the instrument creating the
same or by any other instrument is made repurchaseable on payment
of a gross sum of money, and also any arrear remaining unpaid of
any annual or periodical charge, for payment of which arrear a sale of
any land charged therewith might be decreed by the Supreme Court;
and the terms " established " and " registered " shall also be taken
severally to mean " sought to be established " and " sought to be reg-
istered."

3. Any person claiming to be entitled to any land in British Hon-
duras may apply, by himself or his agent, according to the form given
in schedule B to this chapter, to the registrar to register the title of
the applicant to the said land; and the application shall be delivered
or transmitted to the registrar at his office, to be filed.

4. The registrar shall prepare a notice of every application for
publication in the gazette, and the London gazette, and shall supply
the applicant or his agent with a certified copy of such notice, and the
applicant shall cause a transcript thereof to be served on every owner
of any land adjoining the land by him sought to be registered, and on
any occupier of land included in such notice not holding under the
said applicant nor being a mere trespasser.

5. . . . such notice shall contain a statement that the title of
such applicant will be publicly investigated by the chief justice, at a
time and place in Belize to be appointed, not sooner than four months
from the date of the notice, when all persons who shall have filed
claims adverse thereto will be heard, and shall include all the particu-
lars stated in the form given in schedule C to this chapter. . . .

704 APPENDIX OF STATUTES.

7. ... in no case shall the chief justice pronounce in favour
of any applicant who shall not establish to his satisfaction that he or
they through whom he claims has or have had possession of the lands,
or of the estate, interest, power, or right claimed therein (not being
equitable only), for the then preceding twelve months.

8. Upon the investigation of any application or claim the chief
justice shall take down in writing, in appropriate books, to be de-
posited with and kept by the registrar, the whole of the oral evidence,
without any abridgment, which shall be adduced for and against such
application or claim, and such books shall be open to inspection by
any person whatsoever, subject to the payment of the authorized fees;
but nothing herein contained shall be construed to authorize the
inspection by any person whatsoever, other than the applicants and
their privies of their evidence taken before the 29th day of June, 1865.
in the investigations of applications.

9. If on the investigation of any application the evidence, whether
documentary, oral or otherwise, by the applicant or his agent in sup-
port thereof shall, notwithstanding the opposition (if any) thereto, in
the judgment of the chief justice show that the applicant has a good
prima facie title to the land or some part thereof claimed by such
applicant, the chief justice shall give under his hand a written deci-
sion describing the same, and the registrar shall forthwith enter the
same in the register in manner in section 26 hereinafter mentioned,
and file the written decision.

10. The chief justice shall accept as evidence of a prima facie title
for the purposes of this chapter such evidence of title as would, in the
judgment of the chief justice, be accepted by a willing purchaser as
sufficient evidence of a safe-holding title.

14. Any person, other than the applicant, claiming any legal
estate, interest, power, or right in or affecting land or any part thereof,
in respect of which a prima, facie title has been established, may, by
himself or his guardian, or next friend or committee, or his respec-
tive agent, as the case may be, at any time within ten years after the
third publication in the gazette of the notice of the application to
register the title to such land, deliver or transmit to the registrar at
his office in writing, specifying the estate, interest, power, or right so
claimed, and such evidence as he may think fit in support of his claim.

15. Where any person, other than the applicant, having or claim-
ing any legal estate, interest, power, or right in or affecting land in
respect of which a prima, facie title has been established, and referred
to in the notice, does not within two years after the third publication
of the notice, and whether or not resident in British Honduras, and
whether or not under any disability, deliver or transmit, by himself
or his guardian, or next friend or committee, or his respective agent,
to the registrar notice according to this chapter of his claim, every
such person so failing to give notice, and all persons claiming or to
claim by, from, under or in trust for him shall, in favour of every
person who shall at any time claim under or by virtue of any lease,
transfer, or other partial or total alienation for valuable consideration,
at any time made by the applicant, or by any person claiming by, from
or under him, be, as regards the same land, absolutely barred from
claiming at any time after those two years any legal estate, interest,

BRITISH HONDURAS. ?05

power, or right (not being an equitable interest or right), of which
notice might have been so given; and every estate, interest, power, or
right the claim to which is so barred, shall in favour of every person
so claiming in respect of alienation for valuable consideration be, as
regards the same land, absolutely extinguished and null and void to
all intents and purposes; provided nevertheless that any person law-
fully entitled in preference to the said applicant to any estate, interest,
power, or right which shall have been so barred as aforesaid, may at
any time within ten years after the third publication of the notice
aforesaid, recover from the said applicant, his heirs, executors and
assigns the value of such estate, interest, power or right, at the time
when the same was so alienated as aforesaid, or such greater sum as
may, in the opinion of the Supreme Court, be equivalent to the injury
which he has sustained by the barring of such estate, interest, power
or right.

16. Where any person, other than the applicant, having or claim-
ing any legal estate, interest, power, or right in or affecting the lands
or houses, in respect of which a prima facie title has been established
and referred to in the notice, does not within ten years after the third
publication of the notice, and whether [&c, s. 15, supra] shall, in
favour of the applicant, and every person who shall at any time claim,
whether for valuable consideration or not, by, from, or under him be, as
regards the same lands or houses, absolutely barred from claiming at
any time after those ten years any legal estate, interest, power, or
right (not being an equitable interest or right), of which notice might
have been so given; and every estate, interest, power or right, the
claim to which is so barred, shall, in favour of the applicant and every
person so claiming by, from or under him be, as regards the same
lands or houses, absolutely extinguished and null and void to all
intents and purposes.

24. It shall be lawful for either the applicant or the claimant to
appeal from the decision of the chief justice to his Majesty in council
according to the provisions of chapter 16.

26. Forthwith after the chief justice's decision on the claim of
the applicant or his agent, the registrar shall enter in the register the
name and description of the applicant, and a copy of the description
of the lands given in the decision of the chief justice, and a copy of so
much of the plan (if any) accompanying the application as comprises
the land in respect of which prima facie title has been established, and
the estate, interest, power, or. right in or affecting land which the
applicant claims.

27. Where the two years, or, as the case may be, the ten years,
within which notice of the claim of any estate, interest, power or right
in or affecting the land, or any part thereof, may according to this
chapter be made, elapses without such claim being made, the registrar
shall, on the expiration of the respective period, make in the register
an entry of the period having elapsed without such claim being made.

30. The person or persons, who according to the entries made
according to this chapter in the register appear to be entitled, accord-

b.t.l. — 45

706 APPENDIX OF STATUTES.

ing to this chapter, to land, or to any legal estate, interest, power or
right in or affecting land, shall be entitled accordingly, and to the
exclusion of all other persons, and of all other estates, interests, pow-
ers and rights, not being equitable estates or interests, in or affecting
the said land, or any part thereof; and the register, or any extract
therefrom, duly certified by the registrar, shall be to all intents and
purposes whatsoever, and to the exclusion of all other evidence (evi-
dence of fraud only excepted), the foundation and the evidence of the
foundation of the title to the land registered, and to the estates, inter-
ests, powers, and rights registered; and the registered land, estates,
interests, powers, and rights respectively may and shall descend,
devolve and be transmitted, dealt with, disposed of, and enjoyed accord-
ingly: provided notwithstanding that in regard to all titles to lands,
founded upon previous grants from the Crown, all the reservations,
provisos, and conditions contained in those grants shall be preserved.

31. A transfer, entered in the register, of land shall be a sufficient
conveyance, and no other mode of assurance shall be necessary; and the
certificate of the registrar, under his hand and seal, shall be a sufficient
evidence of such transfer; and such certificate may be dealt with and
used as any title deeds, conveyances, or assurances may be dealt with
and used.

32. When the estate or interest of a registered proprietor is
transmitted on his death to any other person by descent, will or repre-
sentation, such other person shall, on the production before the regis-
trar of proof satisfactory to him, be entitled to be entered on the reg-
ister in the place of the deceased applicant, claimant or proprietor, as
the case may be, and if such person cannot be ascertained, or there
shall be any doubt, dispute, or litigation touching the ownership of the
estate of such deceased proprietor, it shall be lawful for the Supreme
Court to appoint a person to be registered in the room of such
deceased proprietor as the representative of such estate or interest.

36. Memorials of descents, deaths, marriages, and the evidence
thereof respectively, and such other memorials and evidence of mat-
ters relating to registered lands as the registrar shall, on the same
being delivered to him, deem important, shall be registered.

37. Where any married woman is desirous of making any appli-
cation, giving any consent or doing any act, or becoming party to any
proceeding under this chapter, her husband's concurrence shall be
required, and she shall be examined apart from her husband touching
her knowledge of the nature and effect of the application or other act,
and it shall be ascertained that she is acting freely and voluntarily;
and such examination may be taken before the chief justice, or a com-
missioner appointed by him to take acknowledgments of married
women; and any married woman entitled to her separate use, and not
restrained from anticipation, shall, for the purposes of this chapter,
be deemed a feme sole.

40. All equitable estates and interests shall be governed, regu-
lated and secured according to the rules contained in schedule D to
this chapter.

45. This chapter shall not prejudice, affect or extend to any
estate, interest, power, right, franchise, jurisdiction or royalty of his
Majesty, his heirs or successors.

BRITISH HONDURAS. 707

SCHEDULE A. (Books).

1. There shall be one book in which all applications to be regis-
tered as owners of lands shall be entered as soon as the application
shall be made.

7. Lastly, there shall be a book, in which all titles to land shall
be registered when such titles shall have become in any respect abso-
lute and indefeasible, either from the parties having failed to put in
claims within the two years, limited by this chapter, or from the deci-
sion of the chief justice or the judgment of the Judicial Committee of
the Privy Council, or otherwise.

8. There shall be a caveat book (see schedule D).

9. There shall be a record book to meet the requirements of
section 36.

SCHEDULE D. (Caveats and Equitable Interests, &c.

1. Any person, claiming under any written instrument any unreg-
istered estate or interest affecting, or equitable lien upon, any regis-
tered land, shall be entitled to lodge a caveat with the registrar.

2. The caveat shall be lodged, either for the exclusive protection
of the person claiming to be entitled to any unregistered estate or
interest or equitable lien, or for the protection of all persons claiming
or to claim under any written instrument.

3. Claimants under judgments, decrees, and lis pendens, shall be
protected by caveat.

6. When a caveat shall have been lodged with the registrar the
lands to which it relates shall not be transferred until it be removed.
Notice of the lodging of the caveat shall be given to the registered
owner or his agent.

7. When a registered owner of land, with respect to which a
caveat has been lodged, applies to the registrar to transfer such lands
to a purchaser, the registrar shall give notice to the person lodging
such caveat or his agent of such application; and if, on the expiration
of fourteen days after he has received such notice, he shall take no
steps to protect the interest to which the caveat relates, the caveat
shall be removed.

10. If the caveat shall be improperly removed through the care-
lessness or fraud of the registrar, the registrar shall be liable to an
action for damages on the part of the person by or for whom it is
lodged, or his heirs, executors or administrators, as the case may be.

12. When application is made to the registrar to transfer regis-
tered lands to a purchaser, and there is no caveat lodged, or if lodged,
such caveat has been removed, the registrar may make such transfer,
although in point of fact the said lands may be incumbered, and an
alienee for valuable consideration to whom the said lands are trans-
ferred shall take the said lands free from all incumbrances, whether
such alienee have notice thereof or not.

INDEX

ABSOLUTE FEE (and see British Columbia),

meaning of, 19, 51, 82, 551
ABSOLUTE TITLE (and see England; Ontario; Leeward Islands;
Jamaica),

limitation Acts confer, on person in possession, 34

meaning of, 19, 21, 23, 665

under Jamaica limitation statute, 96

ABSTRACT OF TITLE,

meaning of. 19, 20, 305, 306

vendor, of, practice as to, 303, 305, 306

ADMINISTRATOR (and see Personal Representative),

"as administrator," effect of entry on register, 162, 381, 382

de bonis non, when necessary, 383

office of. not transmissible, 381

power of sale of, exercised after 25 years, 381

ADVERSE CLAIMS,

indefeasible title an answer to, 94

initial registration, on, 55, 56. 405, 606, 704, 705

purchaser, may be made against, up to time of registration, 126, 127

registration a bar to, 2, 4, 16, 51, 52, 54, 55, 94-96, 99
ADVERSE POSSESSION (and see Possession; Limitation Statutes),

blot on title, when, 75, 86

continue in, how far necessary to. 82

defence to action for recovery of land, 78

initial registration, a bar to, 49, 50, 675, 676

meaning of, 82, 83

non-disclosure of title under, effect of, 50

registered title and, systems not uniform as to, 10, 14, 50, 74, 76

rights under, registration made subject to, 75, 76, 85
registration overrides. 76, 83

title by, forced on a purchaser, 35

AGENT,

fraud of, principal's registration inconclusive for, 141
fraud, denying principal's interest is. 142

of purchaser to act for vendor is, 142
initial registration of, for rightful owner, 108
rectification of register against, of true owner, 108
signature of application by, 50

AGREEMENT (and see Contract),
defeasance by informal, 293
re-transfer of land, for. security by, 289-295

ALBERTA.

adverse possession, title acquired by. 35

caveat, contract for sale specially protected by, 656, 657

entry of, equivalent to registration, 160
prior to initial registration, 171

only one kind of, 57, 62

unregistered mortgage protected by. 656

void transaction not protected by, 287
chattels, securities' for purchase money of. avoided, 117, 167, 182
contract for sale made assignable. 122, 302. 309, 657
contracts, jurisdiction of courts preserved over. 108, 117
corporations, execution of instruments by, 657

registration of interests belonging to, 646
creditors' assignee, registration of, 159
deed, registered instrument has not effect of, 234-236, 242

710 INDEX.

ALBERT A— continued.

deeds registry, none in, 71

Dominion parks, lands within, 646

Dower Act, 169, 229, 659

estates tail abrogated, 324

foreclosure, alternative methods of, 258

fraud, jurisdiction of courts preserved as to, 117

grant from Crown, title otherwise than by, 36, 645

homestead, protection of, 169

indemnity, action for, not required for misdescription, 150,

initial registration, any interest in land entitles to, 33, 36, 38, 645
non-entry of caveat gives no right to, 55

leasehold registration, implied authority for, 25, 645

limitation statutes, application of, 88, 89

misdescription of parcels, register not conclusive in case of. 97. 135,
140, 149, 150, 658

mistake, omission of easement not included in, 135

mortgage, on, certificate of title deposited at registry, 264, 265
prohibited transfer includes, 208, 648

mortgagee, application for initial registration by, 37, 38
has express power to lease, 215, 249, 649
sale by, alternative methods of, 25l, 252, 648. 649

nominee, implied authority for registration of, 37

North-West Territories, formerly included in, 71

notice of assignment of contract, 122

initial application when to be published, 56

parcels, register not conclusive as to, 135

peculiar features of system in, 14

plan, unregistered, prohibition of sale by, 302, 326, 660

registration statutes, 13, 644

tenancies not affected by initial registration, 84

tenant for life, initial application by, 31, 33, 67

title deeds retained at registry open to public inspection, 68

transfer, enforcing registration of, 647

unpaid vendor, interest of owner as, liable to execution, 361, 654

unregistered instrument, interest passing by, 67, 117, 646
ALIEN— ALIENS,

initial registration of, 29

registered land subject to law relating to, 100
ALIENATE, meaning of, 36
ANNUITANT,

death of, discharge of annuity on. 382. And sec Death.

meaning of. 403

recovery of land from grantor, right of, 454. And see Mortgagee

remedies' of, under statutory charge, 297, 298, 430. And see Mortgagee
ANNUITY,

covenant securing, is registrable, 296

discharge of, 382, 436. 494, 496, 627, 652

life, is a non-transmissible interest, 382
order for alimony has effect of, 622

meaning of, 403

remedies under statutory, 297. 298, 430. And see Mortgage

secured by charge, 20, 21, 296-298, 430, 590, 621

incumbrance, 590, 621. And see Incumbrance.
APPURTENANT RIGHTS, transferee of land takes benefit of, 323, 328
ASSURANCE FUND, see Indemnity
ATTESTATION, see Execution
ATTORNEY, see Power of Attorney

u AUSTRALIAN TORRENS SYSTEM " judicially cited. 141, 153, 161. 184,
186. 187, 189, 201, 202, 234, 243, 287

BANKRUPTCY (and see Creditor; Creditors' Assignment),
annulment of, how effectuated, 357, 450
dealings by debtor before registration of, 461, 672, 674
foreclosure of lease on, 428, 497, 680

INDEX. ■? 1 1

BANKRUPTCY — continued.

general law of. registration statutes subject to. 351

meaning of, 475

of trustee, registration of successor on, 156, 157, 158

on, creditors' representative not entitled. 356
power of attorney not revoked by. 500
surrender of lease on, 349. 350, 428, 670
trustee in, deceased, successor to, 374, 377, 381
disclaimer by, 428. 497. 680
registration of, 352, 461, 672. 674
vesting effect of, subject to registration statutes, 354
vesting order on foreign, 367
BOUNDARIES,

correction of registered. 3, 539
fixing, in England and Ireland, 52. 56
mistake in. is a misdescription. 133. 134
register not conclusive as to. 539
BRITISH COLUMBIA.

absolute fee. adverse possession, is not conclusive against. 82
certificate of title on registration of, 555
conversion into indefeasible fee, 330, 554
meaning of, 19. 51. 82, 551
title conferred by, 556
adverse possession, title by. overrides initial registration. 76. 82, 556
" applications," all transactions treated as, 56. 62
application, charges registered after date of, 63. 64, 556

time of, for registration, 565
attorney for married woman, execution by, 567
Australian decisions applicable. 193. 277
caveat, 56, 62, 177, 178

by leave of the registrar, 564'
overpayment by co-owner, protecting. 564
written instrument necessary to support, whether. 177. 178
caveator, compensation to, on withdrawal of application, 62. 560
certificate of title, duplicate only for fully warranted title. 67. 555
charge, contingent right registrable as, 558
executor registered as owner of. 562
executor's power of sale registered as1 a. 375
future right registrable as a. 558
lease registrable as a, 333, 557
life estate registrable as a. 331, 382. 557
meaning of. 275, 276, 299, 333. 551
register evidence of title to. 98. 558
registration is notice of. 119. 565
remainder registered as a. 331, 561
sealing not necessary for. 275. 276
statutory non-mortgage, not provided for. 299
transfer of, method of registering. 558
charges, cancellation of. 576

registration of. 557-559
Companies Acts, registration under. 227. 276. 558
co-owner, overpayment by one. 563. 564
contract, registration of. 302, 305, 330, 563
court, jurisdiction of. 572

Crown, Dominion of Canada, registration in right of, 563
land forfeited to. registration of. 562
saving of rights of, from registration. 104, 555
Crown debt, registration of. 563 •

death, application for registration on transmission by. 561
probate to be filed before application on, 561
successor on, registered as trustee, etc., 375
deeds and instruments, record of, 576
disabilities, 41, 562. 574

equitable estate, registration essential to passing of, 114. 115, 167, 570
equitable mortgage, contractual right only conferred by, 285, 286
equitable mortgage by deposit, no registration bv virtue of. 558

validity of, 282

712 INDEX.

BRITISH COLUMBIA— continued.

execution and attestation of instruments, 221, 275, 276, 329, 565, 566,

567
executor, registration of title of, 560
form of mortgage not provided for, 20, 192, 275
fraud, exception of, from conclusiveness of register, 124, 138, 139,

556, 557
freehold land, successor to, unchanged, 371, 375
fully warranted title, conversion of qualified title into, 52, 554
registration with, compulsory, 51, 554, 578
incumbrance, etc., meaning of. 21, 299, 300, 552
indefeasible fee, certificate of title to, issued in duplicate, 555

meaning of, 551
indefeasible title, 19, 23, 51, 551, 552

absolute fee converted into, 330, 554

meaning of, 552

registration with, effect of, 555

under order of court, 572
undersurface rights not registered with, 331, 554, 578
indemnity only for land with indefeasible title, 389, 575
indemnity, no right to, for shortage in area, 394, 574
initial registration, fee simple conferred by, 95, 555
no compulsory, 43

no provision for stating occupancy upon, 49
ownership entitled to, 33, 552
safe-holding title essential to, 54, 62, 552, 572
withdrawal of application for, 62, 560
instalments, registrable contract on sale by. 302, 330, 563
instruments, compulsory registration of, 43, 570
" joint owners," effect of registration as, 562
Judgment Acts, etc., conveyance under, 575
judgment and unregistered instrument, competition between, 115, 363

made a charge on land, 362,' 363, 575
judicial declaration of title, 1, 4, 262, 572
land, area of, in initial application, 48, 555
lease, registration confers limited warranty of title on, 333
leases from Crown, registration of, 333

made registrable, 332
leases, short occupation, registration not essential for, 333, 570

unaffected by registered title, 82, 124, 570
leasehold registration only after initial registration, 25
legal estate, continued existence of. 285, 286, 551
lis pendens against initial application, 56
may be registered, 102. 565
treated as a charge, 183
lis pendens, judgment protected by, 575
married women, 41, 566, 567
mortgage, discharge of, 277, 576
form of, 275, 276
interest in land includes, 192
meaning of, 276, 299, 552

on, certificate of title deposited at registry, 265, 276, 555
statutory, no provision for, 192, 205, 265, 275
mortgagee, no initial application by, 38

power of sale of, notice of intended exercise of, 570
remedies and powers of, 192, 277
title of, protected by registration, 277, 570
nominee, no registration in name of, 36
non-mortgage securities, 299, 300

notice, enactment making register conclusive notwithstanding, 124,
125, 570
entries on register expressly made, 119, 192, 276, 565
notice of initial application need not be published, 56
peculiar features of system in, 3, 7, 14, 16, 20, 115, 551
plan, binding effect of, 394

unregistered, prohibition of sale by, 302, 326, 329, 330, 569
possession, acquisition of title by, forbidden, 85, 556

INDEX. 713

BRITISH COLUMBIA— continued.

possessory title, initial registration with. 19. 50, 51. 553
power of attorney, execution of instruments under, 567
Quieting Titles Act, proceedings under, 1, 4, 62, 572
reconveyance, discharge of mortgage operates as, 277, 576
register of absolute fees, 553

cessation of registration in, 578
charges, 20, 558
indefeasible fees, meaning of, 552

part of land in instrument not to be solely

registered in, 554
registration of charge on land in, 559
registration in, of land in Crown grant,

554
small parcels must be placed on. 568
undersurface rights not to be registered in.
330, 554
registered title, purchaser may require, 302, 306. 563
registrable instrument, purchaser entitled to, 329, 563
registrar, powers of, 577

registration, combination of deed and title, 43. 71. 115, 330, 331, 570, 576
contesting, proceedings for, 572, 573
" fee " and " charge." of, 551

interest in land only passes on, 115, 276, 282, 302, 303, 570
mortgagee's title protected by. 277, 556, 574
operation of, as notice, 276. 565
registration of fee. joint tenant or tenant in common entitled to, 555
registration statutes. 12, 551

right of way, separate certificate of title for. 557
sealing unnecessary, 329, 561
statutory instruments, use of. permissive, 309, 329
sub-agreement, registration of, 558

successor, registration of, when no warranty of title by, 98
surrender, cancellation of lease operates as, 576
tax sale, conditions of sale on, 54

title of purchaser at. 330, 559
tenant's agreement to purchase fee simple, effect of. 83
title deeds, deposit of, 577

open to public inspection. 69
production of, 567, 568
transfer, effect of, 115, 571

fee simple conferred by, 95. 569
form of, 578

no prescribed form of. 329, 331
trustee, registration of title of, 560
trustee of will may transfer to himself, 316, 330. 571
trust instrument registered separately. 163. 560
trusts, references in statutes to, 155, 560

unregistered instrument, inadmissible in evidence, when. 113, 570, 571.
no estate (legal or equitable) passed by, 115-

117. 177, 329, 570
rights under, are assignable, 116. 167
vendor, registered title required from, 330, 563
voluntary conveyances, enactment as to. Ill, 331, 575
warranty of title, mortgages are covered by. 193
will, part of land in, may be registered. 554
written instrument only entitles to registration, 177

wrongful registration, fraud or misrepresentation essential in action
for, 149

BRITISH HONDURAS,

bankruptcy, law of, modelled on English Act, 351, 352

caveat, action against registrar for removing. 188. 707

equitable estates protected by, 113. 124. 155, 332, 706. 707 i
mortgages intended to be protected by. 192.^277
written instrument necessary to support, 177. 707

certificate of title, no provision for, 22, 66, 279

charge, mortgage operates by way of, 278

714 INDEX.

BRITISH HONDURAS— continued.

Crown, saving of rights of, 103, 706

deposit of transferee's official certificate, 280, 706

form of mortgage not provided for, 20, 277

fraud, register not evidence in case of, 138, 706

fraudulent entries in register avoided, 124

freehold land, succession to, unchanged, 371, 375

fully warranted title, initial registration does not give. 51, 52, 95,

99, 704
incumbrance, meaning of, 300, 703
indemnity, no provision for, 147. 368, 384
initial registration, no compulsory, 43

only legal ownership entitles to, 33, 52, 704
voluntary application for, form of, 46
leases, effect of initial registration on, 84

no provision for registration of, 168, 332
leasehold registration only after initial registration, 25
legal title, register foundation of, 332, 705, 706
limited owner, no initial registration of, 30
limitation statutes, application of, 88, 89
married women, 41

mistake not mentioned in statute, 129
mortgage, meaning of, 300

only slightly referred to in statute. 191, 192, 277

operates by way of charge, 278
mortgagee, no initial application by, 38

remedies of, 278
" no-survivorship " entry, no provision for, 160
nominee, no registration in name of, 36
non-mortgage securities, 299, 300
notice, enactment making register conclusive notwithstanding, 124,

125, 707
occupation, adverse, precludes initial- application, 49, 704

no provision, for stating who is in, 49
outstanding interests, no reference to, 63, 64
peculiar features of system in, 16
possession, initial applicant must be in, 49, 76, 84, 704

rights under, how affected by initial registration, 84
priority by time of registration, no provision for, 170
register conclusive after ten years, 95, 704, 705
register, power to correct, implied only, 136, 365
registered owner liable for loss, when, 384, 705
registrar liable for carelessness in removing caveat. 384. 707
registration statutes, 15, 703
statutory instruments, use of, permissive, 309
mortgage, no provision for, 192. 205
tenancies, no mention of, 93
title deeds, no provision as to, 49, 68

registrar's certificate used as, 280. 706
transfer, no prescribed form of, 329, 332, 706

registration of, valid in absence of caveat, 124, 125, 332, 707
trusts' not mentioned in statute, 155
unregistered instruments, no provision as to, 113

BRITISH NEW GUINEA, former name of Papua, 10

BUILDING SOCIETY, mortgage to, 209. 231, 271, 671

BUILDINGS,

encroachments in case of. 77, 78

value of, excluded from amount of indemnity, 149, 396, 455, 456, 506
fixtures not included in, 396
paid to owner registered by mistake, 135, 151
BURDEN, see Incumbrance.

CASE LAW,

in various jurisdictions. 7. 11. 14. 15, 17, 18

statute law. corresponding with, instances of, 117. 118, 252-254, 279.
310, 314

INDEX. 715

CAUTION,

caveat and. distinction between, 57, 174
creditors' representative, entry by, 357
damages for improper entry of, 62, 536. 537
interest entitling to enter, 57. 175, 534-536
judgment creditor, entry by, 358
notice of initial application, entitles to. 57, 536
notice of lien operates as, 279
notice of, when not required, 534
omission to enter, bars right to indemnity, 392, 544
operation of, 174, 536
purchaser before transfer may enter, 305
registry, may be entered by, 541
renewal of, 534, 536

tax purchaser, omission of. to enter. 311, 531
CAVEAT,

affidavit or declaration in support of, 596

agreement not to enter, need not be in writing, 60

Australia and Canada, difference between, 161. 171. 187. 188. 190

building restrictions protected by, 185. 186

caution and, distinction between. 57. 174

chattels, protecting sale of, invalid. 287, 629. 630

claim to interest gives right to enter, 173. 184-186. 443. 595. 629. 655.

696, 707
contract for sale protected by, 185, 186, 656. 657

prior to interest protected by, 289
covenant restricting use of land not always protected by. 186. 187
covenants* running with land protected by, 184, 185
creditors' representative, entered by. 357, 461, 474
Crown, on behalf of, 29, 452, 504, 564, 584. 630
debtor, by, on security by transfer and defeasance, 291, 294
easement protected by, 183, 422

effect and operation of, 189, 190. 287, 443, 499. 564, 595, 630. 656, 664
equitable mortgage requires protection by. 285. 287. 298, 692
equitable mortgage by deposit not protected by. indemnity for loss of,

390, 393, 468
equitable mortgagee by deposit may enter. 280. 282-284, 468
execution creditor may be protected by. 655
existing rights merely protected by, 188, 189
foreclosure application, against. 439

forfeiture of lease, right to relief from, not the subject of, 185
improper entry of, owner entitled to compensation for, 188. 443. 500, 631
incumbrances, interest in. protected by. 203
indemnity, caveator ordered to give security for, 656
initial registration, entry before, no priority conferred by. 171

procedure on entry against. 405. 406. 498, 499.

595, 686
subsequent transactions and, distinction between,
59, 498
injunction, operates as*. 58, 154. 161, 189
inoperative on withdrawal of initial application. 60
" interest in land." meaning of. 59, 167, 175, 184-186
interest entitling to enter, 57-59, 177-187. 203. 204. 442. 498. 564,

595. 686, 696, 707
judgments protected by, 182, 679

land, actual interest in. essential to support. 59. 178. 182
lapse of, caveator loses all rights by, 58. 59, 564
legal interest protected by, 172. 173
lis pendens protected by, 183. 679
litigation, is' commencement of. 52, 58. 184
mortgage confers interest sufficient to support. 59. 17S. 170. 207,

277. 289
mortgagor may enter, against mortgagee. 270
next of kin, interest of. protected by. 185. 186
non-entry of, does not entitle to registration. 55
notice, a means of conveying. 189
when not, 120. 289
whether to all the world. 187. 188

716 INDEX.

CAVEAT— continued.

omission to enter, right barred by, 59, 60, 150, 172, 392. 458, 574,

598, 659
operation of, not uniform in all jurisdictions, 187, 188
option of purchase protected by, 185
order for s'ale or mortgage operates as, 363
partnership interest protected by, 181, 182, 185
person entering, liable for loss or damage, 60, 443, 500
personal right, cannot be entered to protect, 178, 182, 186
priorities, effect on, see Priority

procedure for determining rights under, 188, 442, 596, 597, 599
proceedings in lieu of, 58

prohibited transaction not protected by, 182, 287, 622, 629, 630
public rights of user not the subject of, 183
purchaser before transfer may enter, 185, 305
registered title subject to, 556

registrar, may be entered by, 29, 452, 504, 564, 630
registration, how far entry equivalent to, 160, 188, 189, 596
registration of judgment or execution operates as, 360, 361, 517
registration subject to, effect of, 187
renewal of, action against registrar for, in B. Honduras, 188, 384, 707

not always necessary, 187, 443

substantial rights not determined on, 61
renewal of, 59, 406, 443, 500, 564

discretion of Court as to, 59, 500, 564
restrictive entries, takes the place of, 177, 187 >

right to enter, follows right <to injunction, 183, 184
second, not usually permitted, 188
sub-mortgage protected by, 264
timber, right to cut, protected by, 185

transfer from sheriff subject to interest protected by, 361, 362
transmission, beneficial interests under, protected by, 496, 497
trusts protected by, 157, 162, 564, 687

unregistered interests protected by, 172, 173, 305, 564. And see Equit-
able Interest
mortgage, protecting, 656
validity of instrument not increased by, 287
vendor's lien protected by, 102, 103
withdrawal of, 60, 500, 631, 656
written instrument whether necessary to support, 175, 177-182, 707

CERTIFICATE OF CHARGE (and see Certificate of title)
registration of charge or mortgage, on, 525, 555, 594, 622, 652
transfer of charge, on, 548
CERTIFICATE OF OWNERSHIP (and see Certificate of title),

meaning of, 22
CERTIFICATE (CERTIFICATES) OF TITLE (and see Duplicate)
area of land in, 609, 659
date of, is date of last entry, 585
duplicate of register is, 66, 278, 555, 585, 669
evidence of title, how far, 278, 279, 485, 556, 586
grant or issue of, 21, 411, 415, 479, 555
initial registration, on completion of, 63, 66, 70. 411, 479, 484, 522,

555, 607, 669
irregularity, not impeachable for, 486. 669
issue of new, its effect on limitation statute, 88
issue or grant of, 21, 411, 415
joint tenants and tenants in common, rights of. to, 67, 68, 411, 485,

555. And see Joint Tenants ; Tenants in Common
loss of, issue of new on, 414, 415, 486, 487, 556, 584, 613
meaning of, 22, 66, 601
nominee, issue to, 36. And see Nominee
one or more may be issued, 486, 557, 612
possession of, important to purchaser, 367

mortgagor entitled to. 663, 691

registry retains, on mortgage, 264, 265, 276, 496, 555.

594, 622, 652
right to, priority according to, 171, 172

INDEX. 717

CERTIFICATE (CERTIFICATES) OF TITLE— continued.
possession of, right of mortgagee to, 214, 264, 265, 49ti
prior, meaning of, 586

title under, see Priority
production of, at registry, enforced, 452, 504

essential for registration of transaction. 170, 279, 281.

318. 321, 419, 527. 555, 608
enforced, 318, 449, 503, 504, 517, 613
in custody of mortgagee, 265, 270, 331. 332. 437, 527
may be dispensed with. 281, 330. 414. 482. 487, 559.

568, 575, 584, 605
on registration of sub-lease. 349
stipulation in contract for, 307
special, loss by issue of, 393, 468
title deeds, how far analogous to, 278, 279. 281
transfer, to be granted upon, 645

CEYLON,

fully warranted title, initial registration does not give, 52
peculiar features of system in, 16
registration statutes, 16

CHARGE— CHARGES (and see Mortgage)

agreement for, not sufficient in statutory mortgage, 212

capitalized value of, measure of indemnity may be, 395

completion of, by registration, 113, 525

contractual right rather than, equitable mortgage may be, 285

deposit of certificate of title, implied by. 281

discharge of, by registration, 113, 114, 526. 576

extension of, statutory provision for, 468

judgment and execution made a. 358. 362, 363, 633

meaning of, 20, 21, 193, 198, 208. 295, 403, 476, 511. 525, 551

mortgage operates by way of, 191, 205. 207, 208. 211, 212, 316

mortgage and, distinction between, 198-200, 208. 285. 286. 295. 297,
551, 552

mortgage includes, in N. Zealand, 476

mortgage included in, when, 511, 525, 551

statutory, resembles statutory mortgage. 297

securities effected by, 194, 198, 205, 295, 525. And see
Mortgage

statutory non-mortgage, 295-299, 430

discharge of, 298, 299, 436
equitable mortgage effected by, 286, 287, 298
nature of security conferred by, 297. 29n
performance of covenants secured by, 298
power conferred by, 297

transfer of, 317, 325, 328, 424

undivided share in. not solely registrable, 538

CHATTELS.

land and. not to be included in same instrument. 316. 317
mortgage securing purchase money of, when void, 117. 167, 621. 622. 629
mortgaged land, on, when not liable to distress. 245
CIVIL LAW,

mortgages under, are by way of charge, 191, 339
ownership under, is registrable, 24

COMPANY— COMPANIES (and see Corporation)
debentures of, when registrable, 275, 538
. register of, in Ontario, 549, 550

statutes relating to, registration under, 72, 227, 558
title of, on purchase ultra vires', 329
winding up of, effect of, 357

COMPENSATION, see Indemnity
CONSENT,

to application for initial registration. 30-32, 37-41, 404, 405
withdrawal of initial application, 61

718 INDEX.

CONTRACT— CONTRACTS.

conveyance when operative as, 286

deeds registry, when registrable at, 71, 301, 581

discharge of mortgage is a mere, 273

equitable interests, position in scale of, 166

inchoate, made completely operative by registration. 236

jurisdiction of courts over, preserved, 108. 111. 112, 117, 118, 641

prohibited transaction treated on footing of. 112, 116, 167, 291

registered owner, enforceable against, 111, 301. 685

right to be registered is higher than a mere. 116. 165. 166

statutory instrument before registration operates as, 115. 166, 167,

206^ 236. 323, 685
time not of essence of. whon. 295, 304
unregistered transaction on footing of, 115. 167, 206. 323, 685

CONTRACT FOR SALE (and see Contract).
assignable in Alberta. 102. 302. 309. 657
caveat, protected by, 185. 186, 656, 657
cons'truction of, 303

damages for breach of, 303, 304, 307, 308
general law of, modifications of, 302, 306
initial registration, condition requiring, 304
investigation of title as on, 53
mortgagee's, purchaser's rights under. 254, 275
necessity for, 301
possession under, title by, 78-80

purchaser's rights under, before registration. 126. 254
registered owner bound by his, 111, 112, 301
special conditions in, 304. 307

specific performance of. 112, 113, 122. And see Specific performance
tenant having, effect of, 78-80, 83
transfer and, discrepancy by mistake between, 129

CONVEYANCE.

appointment of bankruptcy trustee when registrable as. 352.
charge substituted for, in law of mortgage. 191, 207. 211. 264, 270
initial registration, pending, 36. 60
initial registration in lieu of, 39, 304. 667
instrument of transfer treated as, 315
land not vested in purchaser by, when, 44. 45
legal estate, of, effect of, 286
mortgage by, in British Columbia, 275
right to call for, is an equitable interest, 153, 175
statutory mortgage must not operate by way of, 211. 212. 236. 290
transfer an alternative to, 329
differs from, 334
vendor's covenant for title in. title good without, 54, 55
CONVEYANCING,

practice of, how affected by registration of title. 11
statutes relating to, incorporated in registration statutes :

conveyancing (general), 194. 197, 215. 217. 219. 238. 239. 246. 249,
266, 267, 296, 312. 347, 430, 678

deeds registration. 197, 268, 525

married women, 229

mortgages, 225, 250, 268. 435, 436. 526

powers of attorney, 224, 501
title registration is a system of, 2

COPY— COPIES,

certificate of title, of, when valueless, 280
certified, of register are evidence, 462. 603
register, of, certificate of title is, 278, 279
right to, of registered documents, 70, 482, 603

COPYHOLDS, analogy of, 278

CORPORATION— CORPORATIONS,

attorney of, execution of instruments by, 502

initial application by, 50, 405, 422
church trustees made a, in North-West Territories, 378, 379, 381, 664

INDEX. 719

CORPORATION— CORPORATIONS— continued.

Companies Acts and registration statutes, relation of, 227, 228, 549.

550, 558
dissolution of, vesting order after, 365, 367

execution of instruments by, 223, 225, 228, 439, 502, 549, 558, 577, 657
foreign, registration of, 227, 228
incapacity of, no claim to indemnity for, 638
initial registration of, 29, 30, 479
" person," included in definition of, 403, 552

seal of, improper use gives no right to indemnity, 226, 393, 506, 638
sole, bankruptcy trustee treated as, 381

successors implied in instrument relating to, 416
validity of transactions of, enquiry into, 227, 549, 577, 646
warranty of title conferred on, 228

COVENANT— COVENANTS.

action on, when registration essential for, 220. 221. 237. 238, 336, 341
annuity secured by, 296

breach of, continuance of, when necessary. 346
injunction against threatened, 345
transferee taking with notice of, 344
brewer's beer, lease may contain, 337

mortgage may contain, 215
non-mortgage charge may secure, 298
by guarantor to pay debt, mortgage may contain, 214
more than one. construction of, 440, 501, 612
transferee of mortgaged land, 241-243. 426. 588, 612. 647
express and implied, distinction between, 220, 221, 237, 238
for further assurance, 238, 501, 611, 612

payment in mortgage, actions on, 220. 221, 237-241

importance of, 239
production of cancelled title deeds, how satisfied, 407
quiet enjoyment, 342
title, 239
implied, action for breach of, 439, 440, 501, 612, 638
liability under, is joint and several. 501, 672

several and not joint. 440, 612
may be modified, 439. 501. 612
on transfer of lease, 322. 427

mortgaged land. 241. 243. 426. 588, 612, 647,
663, 687
lease, implied in. 335. 336, 426, 490. 516. 589, 620, 647. 670
lessee's, assignment to mortgagee, 246

liability of transferee for breach of, 322
right of transferee to sue for breach of. 323
mortgage, in. insertion of special 213. 214. 239

implied in. 432. 433, 491. 509, 525. 526, 623
mortgagor's, how affected by lapse of time. 203. 591
non-mortgage charge, secured by. 298
not to assign lease, 339

assignment by operation of law does not affect, 340

continuance of. whether possible. 346

entry of, on register, 548

not broken by mortgaging, 339

unregistered disposition, 339
relief against breach of, 348
transfer in breach of. whether registrable, 344
whether abrogated by transfer, 146
of indemnity in lease of leasehold land. 516
on transfer of lease. 427. 489

mortoaged land. 241-243, 426. 488 612.
663, 687
restrictive, cannot be protected by caveat. 59, 102, 186, 187

not a registrable interest, 65. 102
running with land, caveat protecting. 184

entry on register of. 539
short forms of, 338-340, 427, 433. 501. 526, 621. 623. 678
sub-lease, implied in, 348. 349, 429

720 INDEX.

COVENANT— COVENANTS— continued.
to discharge mortgage, 509

insure against fire, 238, 239, 339, 678

pay life insurance premium, mortgage may contain, 214

principal and interest. 433, 525, 526, 612, HIT, 663, U87
rates and taxes', 335, 336, 426, 427, 496, 525, 643, 647, 670
rent, 335, 341, 426, 490, 520, 670
rent and observe covenants, 239, 427, 429, 489
State quit-rent, 386
repair, 335, 427, 433, 490, 520, 623, 670
unregistered instrument, in, effect of, 220, 221

CREDITOR— CREDITORS,

representative of, disclaimer of lease by, 355. And see Bankruptcy
registration of. as owner, 352-356, 547
takes subject to equities, 356, 548
volunteer, is a, 356
right of entry of determination of, 450, 451

under 13 Eliz. is a " statutory right," 110
transfer and defeasance agreement, rights under, 292-294
voluntary transaction invalid against, 106, 109, 110

CREDITORS' ASSIGNMENT (and see Bankruptcy),

in Canada, 156, 159, 160. 351, 352, 354, 547, 548, 632, 633

registered title subject to, 556

registration of, 354, 461, 594. 632, 633

voluntary transaction, is a, 351
CROWN,

adverse possession, title acquired by, against, 35, 36

Canada, prerogative rights in, 105

caveat on behalf of. 29, 452, 504, 564, 584. 630

debt, registration of, 563

dissolution of corporation, waiver of claim upon, 365

escheat to, whether land remains on register after, 72, 73

grant from, compulsory registration on, 42. And see Initial Registra-
tion

may be for term of years, 42, 404, 465. 472, 514, 546

indemnity paid for loss of land, recovery of, 147, 148, 151, 152, 398,
399, 453, 543, 686
no reported case of, 399

indemnity for loss through overlapping grants from, 394, 395. 543,
506, 638, 657, 664

initial registration of, 28, 29, 520

lease from, see Lease

liability of, for loss of land on register, 394, 395, 666

registered title how far conclusive against, 103-105, 312, 313. 555, 666

registration of, as owner, 73, 562

road, deposit of plan vests, in, 569, 616, 618, 619, 660
release of rights in, by, 560. 561

title of, treated like subjects'. 28, 29, 35, 36. 73, 104, 105

Victoria, no title against in, by adverse possession against, 35
CROWN GRANT,

certificate of title in lieu of. 477, 607, 666. 685

initial registration, essential for. 36

land included in more than one, remedies for loss by, see Crown

meaning of, 22, 403, 475, 580

notifications in lieu of. 645

registered dispositions before issue of, 39, 42. 43. 413, 469. 608, 622, 663

reservations in. effect of, on contract for sale, 303

excepted from registration,, 103, 104, 555, 611, 676

trusts- in, express mention of, 157

unregistered, in B. Columbia, 51, 554

void, transferee not affected by. 313
CURTESY.

abrogation of, 375, 663

an equitable interest, 169, 176

husband entitled as tenant by the. 460, 673
CYPRUS, registration system in. 3, 4

INDEX. 721

DEATH (and see Transmission),

non-transmissible interests, vesting of, 383, 681

of annuitant, discharge of annuity on, 382, 383, 436, 496, 627. tS:2
applicant, registration takes effect as though prior to. 63, 407. 485
husband, wife's occupation of land after, 82
joint owner, registration of survivor on, 382, 383
limited owner, registration of remainderman on, 681
mortgagee, registration of discharge valid after, 232. 524, 526
owner before registration, mortgage valid notwithstanding, 232. 599
registered owner, on, land not vested in anyone. 371
tenant for life, on, registration of person entitled, 382, 383, 681
remainderman entitled to indemnity. 390, 391
in common, registration of successor on. 529
transferor, on, unregistered instrument not revocable, 118
trustee, land continues subject to trusts on, 513
registration of successor on. 156, 157, 158
personal representative, land in general passes to, 373, 374. 513. 631,

653, 662. 681
registration of memorial of, 706

registration may proceed after, of person entitled. 232. 599
representative capacity, distinction as to land held in, 373, 374. 513. 6*}2
right to registration in consequence of, 532, 533
succession on. general statutes relating to. 372, 373
governed by general law. 371-373
registration enactments relating to, 373
successor on, registration of, 374. 375

successor, true, and mere representative, distinction between. 373, 380
vesting of land on. in successor is only partial, 373. 374
DEBT— DEBTS,

exemption of land from seizure for, 101
mortgage, action against surety for. 260. 263

assignment of, how provided for, 262, 263
covenant continuing after payment of. 274
discharge of. by persons not registered. 273. 274
extinguished by foreclosure, when. 260, 435, 436, 553
methods of securing, old and new. 264

transferable at law. 157. 314, 321. 328. 331, 424. 489, 571.
590. 628
receipt for, by one joint creditor, 274
re->transfer on payment of, 292

simple contract, when constituted by registered instrument, 235
specialty, registered instrument may constitute a. 235
statutory covenant constitutes a. 238
when not constituted by instrument under seal, 236
DECLARATION OF TITLE.

adverse claimants, as between, on initial application. 50, 59-62
caveator or applicant may obtain. 61. 62
initial registration amounts to. 55, 62
judicial, its relation to registration. 1. 2. 4. 55. 62. 89
proceedings' for, against initial applicant. 58. 62
rectification of register, proceedings for, 89
DECLARATION OF TRUST.

initial registration, pending, effect of. 36
methods of recording. 159, 163. 410. 497, 560, 682. 687
DEED (and sec Sealing),

covenant in separate, continuing existence of. 274

defeasance agreement contained in formal. 293

equitable mortgage constituted by. 286. 287

estoppel by. doctrine applies to registered instruments. 235

merger of contract in. doctrine applies to registered instruments, 235

registered instrument may be of greater efficacy than, 236. 242

registration makes statutory instrument operate as a. 234, 235. 242. 314.

315. 424. 425, 481. 502. 682.
rules' concerning, do not apply to statutory instruments. 236
statutory instrument not always operative as a, 323, 324

operative as'. 233. 234. 314. 315. 424
r.t.l. — 46

722 INDEX.

DEED — continued. ;;

statutory mortgage operating as mortgage by. 267
when included in, 235

transfer operating as conveyance by, 313

transfer, operating as, 318
DEEDS REGISTRY,

agreement for sale, registration of, at, 581

collateral trust instrument registered at, 159, 163, 682, 687

easement over or appurtenant to unregistered land, registration of. at.
537

initial registration, recording, at, 63, 68, 69, 406, 522, 669. 675. 676

notice, registration is' not, 682

none, in what jurisdictions, 71

omission to register at, may bar right to indemnity, 392, 483

outstanding incumbrances registered at, priority of, 65, 483

power of attorney, registration of, at, 678

registered land not affected by, 70-72, 410, 522, 580-582, 684, 685

removal from title registry, on, land again subject to, 73, 544, 583

registration of, at, 545

titles registry, to, relation of, 70-72

DIRECTION (and see Nominee),

registration of another by, 36, 37, 582
DISABILITY— DISABILITIES.

infants specially protected in Saskatchewan, 378, 632

initial application by persons under, 40-42, 70, 404, 479, 582

instruments executed by persons under,. 144, 146

loss by registration of, 393

limitation statutes, period allowed by, to, 79, 397, 398, 572, 683

persons appointed to act for those under, 540, 641

statement on register of, 45, 63, 66, 411, 484
DISTRESS,

lessor's right of, 336

mortgagee's right of, 243-246, 432. 492, 590, 591
DOWER,

abrogation of, 229, 375, 662

an equitable interest, 169, 176, 678

extinction of, registrable, 678

land not subject to, evidence that, on transfer, etc., 659

loss of. entitles to indemnity. 390

revival of, in Manitoba, Alberta and Saskatchewan, 169, 229, 659

transfer of right to, 424

DUPLICATE — DUPLICATES (and see Certificate of title),
certificates of title to be in. 408, 409, 555, 585, 607, 645, 669
Crown grants issued in, 404, 513

leases' issued in, 465
entries to be made on, 411, 440, 481, 585, 587, 609
instruments other than transfers may be in, 230, 409, 410, 572

must be in, 230, 481
loss of, new certificate of title may be issued on, 414, 415
meaning of, 601

production at registry of, see Certificate of title.
dispensed with, 414
entitles to priority, 411
for correction, 414, 415, 419

registration of transaction, 415
transfer need not be in, 515

EASEMENT— EASEMENTS,

caveat, protection by entry of, 183, 422

conclusiveness' of register not uniform as to, 101

in futuro, operating, 315

in gross, registration of, 183, 468

mistake in omission of, from register, 132

non-registration, not lost by, 413, 484, 585, 646, 670

plan not sufficient to create, 315

public, registered title subject to, 556, 611. 670, 685

INDEX. 723

EASEMENT— EASEMENTS— continued.

registration of, 27, 28, 101, 102, 183, 315, 412, 413, 426, 468, 485.
522, 537, 614, 647

removal of, from register, 418, 419

restrictive entry, protected by, 177, 183

short form of. of way, 426

statutory transfer, created by, 315, 324, 426, 614

transferee, whether vested in, 323

unregistered land, over or appurtenant to, 537
EAST AFRICA,

equitable mortgage by deposit, 18, 278

initial registration, effect of conveyance pending, 36

peculiar features' of system in, 17, 18

registration statutes, 17

ENGLAND,

absolute title, 19, 21, 23

effect of possession under limitation statutes on, 80

adverse occupation, initial application notwithstanding. 49

applications, numbering, in order of delivery, 63

attestation of instruments, 222

bankruptcy, registration of successor on. 156, 355

boundaries, accurately fixing, 52, 53, 56

building society mortgages, 209, 271

caution, notice of deposit of land certificate operates as, 176

charge, inconclusiveness of register on transfer of, 120
statutory mortgage called a, 205

Companies Acts, registration under, 227

creditors' representative, registration of, 355

Crown, initial registration of, 28

saving of rights of, from registration, 104

curtesy, protection of, 169

death, registration of successor on. 156

discharge of mortgage treated as receipt, 271

donee of power, initial registration of, 40

dower, protection of, 169

ecclesiastical benefices, rights of incumbents, of. 177

equitable mortgage by deposit, 279. 283, 284. And see Lien

forged instrument, effect of registration under, 144

fraud, a ground for rectifying register, 137
no general enactment as to. 136

fully warranted title, conversion of qualified title into, 52

incorporeal hereditaments, initial registration of, 26, 27

indemnity as a form of conclusiveness of title, 145

indemnity, effect of notice in barring right to. 120

in lieu of rectification of register, 137, 138
registered owner indirectly liable for, 147, 148

initial application of purchaser, vendor's consent to, 38

initial registration, caution against, 57, 62

county council may apply for, 45

fee simple or leasehold conferred by, 95

forgery, founded on title bad for, 144

indirect compulsion to. 43-45

subject to unregistered interests of beneficiaries, 113

voluntary application for, form of, 46

judgment protected by caution, 175, 358

judgment creditor, remedy of. 310, 311

judicial declaration of title, 1. 4

land, ordnance map used for describing, 47

land certificate. 22

lease protected by " notice," 164-166. 169, 247. 311, 332

lease, entry on register of determination of. 364

leasehold land, closing of title to. 364. 365
registration of. 332

legal estate, effect of. 111. 193. 194

lien by deposit of land certificate, 176

limitation statutes, method of operation of, 80. 88

724 INDEX.

ENGLAND — continued.

limitation statutes, title by possession under, 80-82, 86-88

limited owner, registered owner may be a, 310

lis pendens protected by caution, 102, 175

mines, separate registration of, 26

mistake, register inconclusive on ground of, 129, 130

mortgage by statutory charge, 193

foreclosure effected by proceedings in court, 198
power of s'ale to be inserted in, 250
mortgage, transfer by way of security not treated as, 289
transfer of, 311

warranty of title to, inferiority of, 98, 195
mortgagee, entry and possession by, 246

registration of purchaser by authority of, 37
stringent powers of sale of, 217, 219, 220
transfer by, under power of sale, 310
nominee, registration in name of, 36
notice to adjoining owners on fixing boundaries, 56
notice, entries on register expressly made, 119
effect of, in particular cases, 120
no general enactment as to, 120
outstanding incumbrance, no warranty of title by entry of, 65
peculiar features of system in, 7, 8
possession, inchoate rights under, 79-81

some rights under, override initial registration, 76, 79-81
title by length of, 80, 81, 86, 87
possessory title, effect of possession under limitation statutes on, SO, 87
initial registration with, 19, 21. 50
warranty of title given by, 98, 99
priority notice, pending transaction protected by, 177
public inspection, register not open to, 70
qualified title, initial registration with, 51
rectification, indemnity in lieu of, 137, 138

in favour of title by possession, 80, 87
not made against registered purchaser, 130, 137, 138
" registered land " in statutes, 22
registered notice, 175, 176
registered ownership, nature of, 168, 193, 310
registration, completion of transfer or charge by, 113

effect of possession under valid title on, 81, 82
transferor remains owner until, 309
registration statutes, 7

Ontario and Nova Scotia statutes modelled on, 14
removal of land from register. 72, 73
restrictive conditions, registration of. 176

entries, protection of unregistered interests by, 172-177
sealing essential, for statutory instruments, 193, 208, 221. 222, 233, 310
settlement, protection of interests under, 310

statutory mortgage, conveyance of fee simple in, unnecessary, 214
tenancies, registered title subject to, 79. 80
tenant for life, initial registration of, 30, 40
tenants of mortgagor, mortgagee's relation to. 246
text-books relating to system in, 8

time limit for indemnity governed by knowledge of claimant. 397
title, evidence of. register made. 302
title deeds, marking, on completion of registration. 69
transfer, fee simple or leasehold conferred by, 95. 195, 312, 321

operation of statutory, 309. 310
transfer without valuable consideration, effect of, 106, 312
trusts, references to, excluded from register, 156
trustees for sale, initial application by. 32. 40
unregistered interests, creation of, 113, 114

difficulty caused by Gap. & Count. Bk. v. Rhodes,

114, 168, 193
expressly permitted, 168, 193, 285, 286
volunteer, purchaser from, gets good title, 110

INDEX. 725

ENGLISH LAW,

Fed. Malay States, how far in force in, 16, 108, 109
foundation of most local jurisprudence, 10. 11. 14, 109
of trusts modified in Saskatchewan, etc., 159, 160
possession a principle of, 74, 75

EQUITABLE INTEREST (interests), and see Unregistered Interest),
assurances of, as if unregistered land, 164
beneficiaries under trust instrument, of, 163, 164, 166
classes of 164-166

contractual rights and, distinction between, 178, 186, 285, 286, 291, 292
creditors' representative's right to be registered, 352
defeasibility of, 200, 279, 285. 358
exclusion of, from register, 102
execution, bound by, 361. 654
incumbrances, may be created in, 203, 204
initial registration, sufficient for, 33. 38, 520, 581, 605, 645
jurisdiction of courts as to. 108
lease when an, 168, 169, 176
legal estate may become an, 167, 168, 286
life estates and remainders when only, 166
lis pendens sometimes an. 102
meaning of, 185, 186

mortgagee's power of sale, when conferred by, 219, 220
negative warranty of title as to. 96. 97

personal rights only may be, 166. J67. 173, 178. 179, 184, 186
possession, rights under, when, 75. 89
priorities between, see Priority
purchaser without notice of, 294, 358

purchaser of. whether protected before registration. 126. 171
rectification, right to, is an, 87, 89
register, not notified 8n, abrogation of. 97, 153
register whether conclusive against, 112
registered and unregistered land, in, distinction between, 153
representative of deceased and bankrupt owners hold subject to, 156-159
restrictive entry, protection by, 172, 175
right of action and, distinction between. 114. 118
right to be registered is an, 114-116. 154

call for conveyance is an, 153, 154. 175
short leasee whether an, 91. 92
sub-mortgage may be an, 264
title to, not warranted by register. 97
unregistered instrument, right under, is an. 114, 118
interests how far. 112, 118, 153, 172
unregistrable in B. Honduras, 706, 707

EQUITABLE MORTGAGE, 278 et scq.

caveat, may be protected by, 285. 287, 288, 298
contractual right only, when on footing of, 285. 286
contract of sale and, priorities of competing, 289
instruments, effected by what, 286-288. 298
judgment creditor's' remedy as under, 310, 311
judgment or execution, created by registration of, 363
meaning of, 285

non-mortgage charge may be, 287, 298
notice of, protection afforded by. 288
receiver may be appointed under, 288
remedies under, 288

statutory mortgage, is. before registration. 233
to, resemblance of, 252

EQUITABLE MORTGAGE BY DEPOSIT, 278-285.

actual deposit essential, 281

caveat, may be protected by. 280. 282-284, 468, 519. 692

foreclosure of. effected by transfer of land. 205, 280, 284

foreclosure, statutory, does not apply to, 285

in East Africa and Uganda, 18, 278

Fiji and Fed. Malay States depends on personal obligation. 280, 281
N. Zealand no interest in land conferred by, 59. 178, 278. 282. 283

judicial recognition of, 179, 180, 191. 281, 282

726 INDEX.

EQUITABLE MORTGAGE BY DEPOSIT— continued.

legal interest, how far a, 279

loss of, entitles to indemnity, 208, 283, 284, 390, 468
priority between, and other interests, 284. And see Priority
receiver may be appointed under, 285

recognition of, in statutes, 178, 179, 191, 192, 279, 280, 285 692
remedies under, 284, 285

restrictive entry, protection by, 175-179, 279, 280. 282
statute-barred, effect of, 38
title to, is not warranted, 283
unregistered instruments may be subject of, 283
unregistrable interest, is an, 283
valid security, recognized as a, 278. 281
vendor's lien protected by, 102, 103
written memorandum when essential to, 281
EQUITABLE OWNERSHIP (and see Ownership) , z

B. Honduras', not sufficient for initial registration in, 33, 52
beneficiaries under trust instrument have complete, 163, 166
compensation moneys for injury to land, entitles to, 115
initial registration, usually sufficient for, 33, 38, 520, 581, 605. 645
EQUITABLE RIGHT, see Equitable interest,
EQUITY— EQUITIES,

principles of, applicable to mortgages, 258

not affected by registration of title, 154
" subject to equities " in Ireland, 75
EQUITY OF REDEMPTION, see Redemption,
ESTATE (ESTATES) TAIL (and see Tenant in tail).
abrogation of, 31, 316, 324, 640. 662
equitable, entitles to initial registration, 34, 38
assurances of, 164 .

incidents of, as under general law, 461
ESTOPPEL,

by deed, doctrine applies to registered instruments, 235
forgery, title depending on, whether doctrine applies to, 146
purchaser for value, in favour of, 146, 171
register, production of, operates' as bar and, 455, 457, 637
tenancy by, 216, 269

transferee of mortgage, in favour of, 269
EXECUTION,

caveat, operates as, 360, 361, 517
charge on land, is a, 633, 654

debtor, whether registered ownership must be in, 293, 359, 633. 654. 655.
initial registration, upon, entry of, 309. 546

instruments, of, abroad, verification of. 502, 503, 610, 673, 674. 682. 690
affidavit of, 588
age of executant, to be stated on, 223, 229

on, may have to be proved. 641
attestation essential to. 221-223, 444, 502, 518. 561

566, 609, 673, 682, 699
by attorney, 223-225, 443, 444, 500, 502

corporation, 223, 225-228, 439, 502, 549, 558, 577,

657
illiterate pers'on, 223, 229, 566, 682. 683
married woman, 223, 228, 229, 566, 567, 699.
person on war service, 445, 610
in blank, 236

duplicate, 230. 231
invalid, 143, 144
out of jurisdiction, 444, 445, 502, 503, 518, 610. 673,

674, 682, 699, 701
presumption of due, 502

registration notwithstanding irregular, 566, 657, 702
judgment and, rights under, are the same. 359, 360. And see Judgment
registration of, effect of, 122, 159, 293, 359, 440, 517, 529, 633. 654

655. And see Registration
satisfaction of writ of, registration of. 441, 451, 518. 529, 634
transfer by sheriff on sale under, 317, 357, 440, 517, 529, 634, 655

INDEX. 727

EXECUTION— con tin tied.

unpaid vendor, interest of, bound by. 361, 654

writ of, notice of, not material. 97, 122, 441, 518, 529
registration of, 604, 611, 654, 655, 664
EXECUTOR — EXECUTORS (and see Personal bepbesextativk i .

all proving, must be registered on transmission, 379, 380
concur in dispositions of land, 440

" as executor," effect of entry on register, 162, 381. 382. 585

devisee, vesting order in lieu of transfer to, 367

land vests in each of several, 373, 380

mortgage debt, recovery of, by, 273, 274

mortgage, discharge of, by, 632

power of sale, with, registered as owner. 381

registered as owner, rights of, 376, 377, 379, 380. 562

registration of, as having right of disposition, 318. 375, 376

tenant for life, of, fixtures passing to. 396

transfer by. to himself, 316. 324. 330. 587

transmissibility of office of. 380, 381
EXPROPRIATION,

compulsory registration upon, 42, 43

registered land subject to rights of, 99, 105, 586, 611, 676. 680

FALKLAND ISLANDS, registration of judicial declaration of title. 4
FEDERATED MALAY STATES.

agreements in lieu of covenants, 237, 238, 516

bankruptcy not mentioned in statutes, 158, 159

charge, statutory mortgage called a, 205, 297

deed, registered instrument has' not effect of, 234-236, 513

deeds registry, none in, 71

English law, local jurisprudence not based on, 16, 108, 109, 291

equitable interests, position of, 166, 167

equity, rules of, how far applicable, 108

equitable mortgage by deposit, personal obligation under. 280, 281, 519

equitable mortgage, contractual right only conferred by, 285, 286

fee simple, statutes' do not mention, 511

Fiji statute, registration statutes modelled on, 16, 205, 511

foreclosure replaced by judicial sale, 256, 284

fraud, jurisdiction of courts in respect of, 108, 117, 138, 519
register can be challenged for. 138

" genuine " registrable instrument necessary, 143

grant, meaning of, 512

indemnity, no provision for. 147, 158, 202, 370, 384

initial registration is compulsory, 42, 43

insolvent debtor's property, vesting of, 352, 354, 356

lease, implied covenant in, to pay State quit rent, 336

lease containing right of purchase, registration necessary for, 91, 333

leases, how affeoted by initial registration, 84

leasehold, lease from State only registrable as. 24

life estates, statutes do not mention, 511

limited owner, no initial registration of, 30

limitation statutes, acquisition of title by possession under. 86, 87
periods under, 294

married women not mentioned in statutes, 228

mistake not mentioned in statutes, 129

mortgage by conditional sale, 292

statutory charge, 511. 516

mortgagee, remedy of, by judicial sale. 218, 247. 251. 252
restricted powers of. as to possession, 247, 516

non-statutory transactions made void. 116, 291, 323, 513

notice, no general enactment as to. 120

when conclusiveness of register not affected by, 120, 121

peculiar features' of system in, 16, 511

possession, rights under, preserved. 83

whether acquirable. 87

" purchaser " protected by registration, 106, 138

purchaser from mortgagee, express warranty of title of, 252

rectification in favour of title by possession, 87

728 INDEX.

FEDERATED MALAY STATES— continued.
registration statutes, 16, 511

registry officers not liable for bonS, fide omissions, 384
sale by court, official certificate of, treated as transfer, 325
State leases, register of, 514
text-books' relating to system in, 17
trust not enforceable against debtor's receiver, 158-160
unregistered instrument is authority to effect registration, 117
unregistered instrument, rights under, are assignable, 116
witnesses', list of official, 518
FEE SIMPLE,

agreement to purchase, by tenant, effect of, 80, 83, 93
caveat, what is sufficient description in, 58
conveyance of, in statutory mortgage is unnecessary, 214
Fed. Malay States statute, not mentioned in, 16, 511
grant from Crown in, of leased land, 469

independent title to, when good against registered title, 82, 83, 93
initial application by person not having the, 31, 40
registration confers, 95, 195, 555, 665
registration, for, may be legal or equitable, 33, 34, 54, 404, 478,

520
Leeward Islands statutes, not mentioned in, 17
lessee, transfer to, effect of, 337, 338
limitation Acts confer, 34-36
mortgage by person who owns' less than, 258, 316

way of appointing, 212, 258, 316
mortgagee has, after foreclosure, 258

takes estate less than, 207, 208
occupation, right of person in, may be a, 77, 83
owners of, concurrence in initial application, 30. 404

trustees without power of sale are, 32
powers of appointment over, 315, 316
rectification of register effects' transfer of, 89
registration of, on application of limited owner, 31
registered owner has a, 168, 527, 685
registered, not to be qualified or limited, 685
tenancy and, composite interest of, 77, 78, 80, 83
tenant for life on registration, whether vested in, 30, 31

in tail, created by assurance from, 441
transfer from registered owner confers, 95, 195, 312, 313, 321, 322
Uganda statute, not mentioned in, 18
FIJI,

equitable interests, jurisdiction of courts preserved over, 108

mortgage by deposit, personal obligation under, 280, 281
estates tail, abrogation of, 324
Fed. Malay States statute adapted from, 16
foreclosure replaced by judicial sale, 256, 284
fraud, jurisdiction of courts' preserved as to, 117, 138

register can be challenged for, 138
" genuine " registrable instrument necessary, 143
indemnity, no provision for, 10, 147, 158, 202, 370, 384
initial registration is compulsory, 10, 42, 43

lease containing right of purchase, registration necessary for, 91
leases, how affected by initial registration, 84
leasehold registration only after initial registration, 25
life estate, registration of, 324, 383
limited owner, no initial registration of. 30

limitation statutes', acquisition of title by possession under. 86, 87
married women, instruments to be acknowledged by, 228
mistake not mentioned in statutes, 129
mortgagee, remedy of, is by judicial sale, 218, 247, 251, 252

restricted powers of, as to possession, 247
notice, no general enactment as to, 120

when conclusiveness of register not affected by, 120, 121
peculiar features of system in, 10
possession, rights under, preserved, 83
" purchaser " protected by registration,. 106. 138

INDEX. 729

FIJI — continued.

purchaser from mortgagee, express warranty of title of, 252
rectification in favour of title by possession, 87

registration statutes, 10, 510

registry officers not liable for bona fide omissions, 384

sale by court, official certificate of, treated as transfer, 325

unregistered dispositions, jurisdiction of court preserved over, 117
instrument is authority to effect registration, 117

voluntary application, no provision for, 10
FORECLOSURE,

alternative methods of, 256, 258, 439, 588

Canadian and Australian systems, distinction between, 14, 240, 241

caveat against, 439

covenants for payment, effect on, 260, 435, 436, 553

Crown lease in W. Australia, of, 466

default under mortgage, after, 257, 258, 432, 435, 526, 593, 625

equitable mortgagee entitled to, 288

mortgages by deposit, of, effected by transfer of land, 205
257, 280, 284, 2S8.

indemnity, defects' in proceedings give no right to. 554

initial registration, as to mortgages existing at, 437, 438

judicial sale substituted for, 205, 256, 284, 493

meaning of, 257

mortgagor, when relief given to, before, 274, 275

non-statutory mortgages, ordinary method applies to, 205

ordinary method of, 256, 257, 526, 547

registered and unregistered land, distinction between, 259, 593

registrar has discretion to refuse, 258

registration of, 547, 678

remedies of mortgagee, effect on other, 240, 241, 277, 435, 436, 553, 648

re-opening, 258-260, 277, 435, 553

security by transfer, whether applicable to, 292, 294

statutory method of, 204, 256, 257, 435, 592. 593, 625, 650
non-mortgage charge, applies to, 296, 297

system not uniform as to, 10, 204, 205
FORGERY,

instruments invalid for, 143-145, 195

no warranty of title under, 195, 201, 313, 314,
389

loss through, in Ireland entities' to indemnity, 387

purchaser not affected by vendor's, 142-145

registration subsequent to, may be valid, 144, 145. 284

rule as to effect of, judicial and statutory, 201

transferee under instrument invalid for, not entitled to indemnitv,
195, 394
FRAUD,

American statute and case on, 137

constructive, will not prevail against register, 128, 141

exception of, from conclusiveness of register. 123-125, 127, 137, 13!),
140, 557, 638

forgery is, 142-144

jurisdiction of courts in respect of, 108, 117, 118, 137, 139, 519, 641

legal estate acquired by, effect of, 145

loss through, entitles to indemnity, 387, 388. 455, 543, 573, 597, 657

meaning of, 121, 125, 127, 128, 139-142

mortgagee not affected by mortgagor's, 122. And see Mortgagee.

notice and, connexion between, 121. 123-125, 127. 128, 137, 139-142, 441

notice, apart from, 142

notice treated as, 313

presumption of, rebutted by Voluntary Conv. Acts, 110, 111

purchaser not affected by vendor's, 122. 142, 143. And see Purchases

recovery of land from person registered through, 454, 557, 637

registered owner remains liable after transfer in case of, 149

setting aside completed transaction, how far essential to, 143

trustees, what conduct of purchaser from, amounts to, 128, 129, 142

730 INDEX.

FRAUD— conJiiuued.

unregistered interest, knowledge of, is not, 123, 441, 639

wrongful registration, when essential to action for, 149
FULL OWNER,

meaning of, 30, 313

registration of transmission from, 375, 376
FULLY WARRANTED TITLE (and see Title),

conversion of other titles into, 52, 697

meaning of, 23, 51

postponement of, in B. Honduras and Ceylon, 51, 52

possessory and, distinction between, 51

qualified and, distinction between, 51. 52

rectification of register, no bar to, 136

registration with, when compulsory, 51, 554, 578

GENERAL LEGISLATION,

registered land mentioned in, 374, 375

subject to, 94, 100, 209, 255, 351, 357. 358. 372, 373,
377

registration statutes, express mention of, in, 101, 344, 345

rights conferred by registration abrogated by, 101, 334

subject to registration statutes, 101, 351, 352, 354, 358, 373
GENERAL RULES OF LAW,

registered land subject to, 94, 99, 100, 209

registration statutes and, relation of, 99, 209, 255, 263, 344, 345, 351-
353, 371, 403, 471
GOOD LEASEHOLD TITLE, see Qualified title.
GAMBIA, THE, registration statute in, 16
GRANT,

alienate and, distinction between, 36

Grown, from, title otherwise than by, 36. And see Crown grant.

meaning of, 21, 403, 512, 580, 601

special use of word in Canada, 14, 21

State land, of, in Fed. Malay States, 512
GROSS SUM, statutory charge on mortgage securing. 295-299

HUSBAND (and see Married woman),
death of, wife successor on, 82
wife's initial application, consent when required to, 41, 405

IN GROSS,

easement, when registrable, 183, 468

incorporeal rights enjoyed, 27, 537
INCORPOREAL HEREDITAMENTS, registration of, 24-28. 537
INCUMBRANCE— INCUMBRANCES.

contract, effect of, given to prohibited, 116

incorporeal hereditaments registrable as an, 27

initial registration, existing at time of, 194, 197, 199, 606
discharge of, 271, 272, 605, 606

lease treated as. 64, 169, 685. 691

life estate treated as, 324, 383, 685

meaning of. 20, 21, 198, 295, 403, 523, 552, 579, 580, 590. 600, 675,
700, 703

mortgage entered as', on initial registration, 38

non-mortgage security, 295-299, 590, 621
discharge of. 627

outstanding interests treated as, 64, 484, 561, 668, 685

sale whether subiect to existing, 302, 318
INCUMBRANCES,

Manitoba, in, initial application by, 38

meaning of, 21, 552, 579, 700

recovery of land from owner by, 556

remedies of. see Mortgagee
INCUMBRANCER,

meaning of, 21, 552, 700

subsequent to mortgagee selling, rights of, 255

INDEX. 731

INDEFEASIBLE TITLE,

fully warranted title, another name for, 23, 94, 95
in British Columbia, 19, 23, 551. 552
Fed. Malay States and Fiji, 95
Leeward Islands, 19, 23, 95, 684, 685, 700, 701
South Australia, 95
Trinidad-Tobago, 683
limitation Acts confer, on person in possession, 34
INDEMNITY,

action for, accrual of cause of, 150, 391, 395, 396
notice of, 398. 457, 505, 598. 637
payment without, 395, 457, 505, 637, 638
assurance or insurance funds for payment of, 384, 385. 453. 575. 598.

639, 659, 686
bare legal ownership does not entitle to, 390
beneficial owner may claim, for loss, 390
buildings, value of, excluded. 149, 396, 455. 456. 506. And see

Buildings.
caution, omission to enter, is a bar to, 392, 544
caveat, omission to enter, is a bar to, 468
compensation money, devolution of, 397

conclusiveness of register when a ground for, 147, 391. 455, 701
contributory negligence a bar to, 391. 394, 544

corporation's seal, improper use of, gives no right to. 226, 393, 506, 638
covenant of, see Covenant

damages, amount recovered regarded as. 397, 455, 686
defence of bona, fide purchase for value in action for. 149, 150, 455, 6S6
deprivation entitling to. includes mortgage. 202, 203, 208, 227. 386
equitable mortgage whether entitling to, 287, 288

' by deposit entitles to, 208, 283, 284, 390. 468
foreclosure proceedings, defect in, gives no right to. 554
forged instrument, whether any claim in respect of. 195. 196. 387, 389
fraud, loss by, entitles to. 387, 455, 543. 573. 597. 657
fund, American view of, 384
created by State, 384
deficiency in, how made good, 385, 458, 506. 574, 598

not made good in Ontario. 543
methods of raising, 385, 453, 504. 505. 542. 573, 598. 639, 659
land, buildings when included in, 149. 396, 455, 456
deprivation of, meaning of, 388-391
interest in, meaning of, 390
loss of, may be partial, 390
whether loss of, only entitles to, 387-3S9
legal ownership of private road, for loss of, in Victoria, 423
liability to. makes register inconclusive, 131, 147
loss entitling to, may be of registered or unregistered land, 389
mortgage included in, 202, 203, 277, 386, 390
proximate cause of, 391
losses entitling to :

deprivation of land, 456, 505, 543, 573, 597, 686
inaccuracy in survey, 394. 395. 457

misfeasance of registry, 456, 457, 505, 543, 597, 637, 658
losses not entitling to :

action for trespass. 396

breach of trust, 391, 393. 453, 468, 506, 598. 638

improper exercise of power of sale, 393, 468, 506

use of corporation's seal. 226, 393, 506. 638
interest not protected by caveat. 468
loss of profits, 396
mines in Ontario. 538

non-registration of deed in N. Zealand. 398, 483
registration of instrument of person under disability, 506. 638
measure of amount recoverable, 143, 149. 151, 395-397, 455, 456
misdescription of parcels, for, see Misdescription
mistake a ground for, 130, 131, 134, 454, 543. 597
mortgage is an interest entitling to. 196, 202, 203. 208, 386. 390

732 INDEX.

INDEMNITY— continued.

no provision for, in Fiji — Fed. Malay States — B. Honduras, 10, 147,

202, 368, 370, 384
notice of intended registration a bar to, 123, 544, 598
person causing loss, to be recovered from, 543, 573-575, 597, 598, 657,

658, 698
rectification of register in lieu of, 137, 138, 147, 390, 543
registry, what acts and omissions of, entitle to, 386-389, 456, 457, 574
" registered owner may be liable for, 147-149, 354, 398, 455, 573, 698
State funds and registered owner, from, difference between, 147, 148, 384.

385 397 398 ^73
time limit for recovering, 109, 131, 148-151, 397, 458, 506, 543, 574.
598, 637, 658, 683
independent of claimant's knowledge, 397
trust, loss by breach of, does not entitle to, 391-393, 453, 468, 506, 598
trustee entitled to, from beneficial owner, 460
value of land at time of loss, 395, 396

warranty of title interchangeable with right to, 196, 202, 334, 386, 701
in absence of provision for, 348, 370, 384
INDIA,

mortgage by conditional sale, former law of, 292
statute law of, in East Africa, 18
INFANCY, see Disability

INFANT, capacity of, to deal with Crown lease, 467
INHIBITION {and see Restrictive entry),
interest entitling to entry of, 175
operation of, 174
INITIAL REGISTRATION (and see Land),
a feature of title registration, 2
administrator not a trustee for purpose of, 33
adverse claims, entry and hearing of, 55, 56, 405, 606, 704, 705
agreement for, need not be in writing, 304
applicant for, may be constructive trustee, 108
application for, attorney, by, 50, 405, 479, 581, 582
caveator, by, new, 61, 62

contested title decided by means of, 50, 59, 60
damages recoverable for loss through, 61
evidence accepted on, 405, 522, 523
form of. 46, 50, 465, 478, 552
publication of notice of, 56, 606
running of limitation statute not stopped by, 52
second, as to same land, 60
withdrawal of, 60-62, 406, 480, 607
withdrawing objections and opposition to, 62
caution against, 536
caveat against, 56. And see Caveat
completion of, effect of, 70

precise moment of, 63, 70
compulsory or voluntary, 42, 70
compulsory, meaning and instances of, 42-45. 56, 404, 465, 472. 477,

513, 546, 607
conveyance pending, effect of, 36, 60
. conveyance, in lieu of, 39, 304, 520, 667
creditor, of, under transfer and defeasance, 290, 291
Crown leasehold, of, 465. 466, 472, 514, 546
defective title, founded on, 106, 109, 144, 146
equitable interest sufficient for, 33, 38, 581, 605, 645
excepted from, position of estates and interests, 72
expenses of, trustees liable for, 32
forgery, founded on title bad for, 144
fraud in connexion with, distinction as to, 143
gazette notification, upon, 408

grant from Crown, upon, 42, 404, 465, 472, 477, 513, 514, 546, 581, 607
incumbrances existing at, see Incumbrance
interest of owner must be stated on, 48, 49
interests capable of, 24.
leases how affected by, 83, 84

INDEX. ;33

INITIAL REGISTRATION— continued.

meaning of, 22, 24. 42, 46, 47, 53, 63

mistake in, and subsequent transaction, distinction between, 134

by way of double registration, 133
mortgage, subject to, 38, 73, 582
mortgage existing at. foreclosure of, 437. 438
objection to. entry and hearing of, 55-57
objects of, 74
persons entitled to, 28, 404, 478, 479, 520, 521, 552, 581, 605. 645. 666

667, 685. 703
possession before and after, distinction between, 74. 85, 86

no distinction between, 77
possession, regard had to, 75

rights under, when abrogated by, 83, 86. and see Possession
not affected by, 76, 77, 82. and see
Possession
public burdens before and after, no distinction between, 105
relation back to date of application, 45, 63, 70
safe-holding title essential and sufficient. 54, 552, 572, 583, 584, 704
specific performance of contract for sale, on, 304
stages in, three, 52, 55, 63

subsequent registrations and, distinction between. 109. 143, 146
tenancies, creation of, after. 84, 85, 90, 91

how affected by, 83, 84
tenant after, with agreement for purchase, 90
transmission resembles", 353, 375-377
undivided interest not proper subject of. see Land
unregistered interests created before, position of, 113
voluntary application, procedure on, 45 et seq., 404-407, 478-4S0, 520,

521
writs of execution existing at, 359, 546
INJUNCTION,

caution operates as temporary, 174
caveat operates as statutory, 58, 154. 161, 189
doctrine of, in relation to equitable estate, 154, 184
inoperative, on withdrawal of application, 60
proceedings for. by ordinary action against applicant, 58
right to, entry of caveat does not abrogate. 187
implies right to enter caveat, 183, 184
trust, entry protecting, operates as. 161
unregistered interests, protection of, by, 184
INSOLVENCY {and see Bankruptcy)

Fed. Malay States, effect in, 352
INSTALMENTS,

contract for payment by, purchaser's rights under, 307
registrable contract for payment by, 302. 330
statutory provision for payments by. 297
INTEREST,

default in payment of, see Mortgage " acceleration clause/'
legislation as' to rates of, registered land subject to. 100, 209
IRELAND,

adverse occupation, initial application notwithstanding, 49

possession in Victoria, analogy to. 75,
bankruptcy proceedings entered on register, 354, 355
boundaries, accurately fixing, 52. 53

conclusiveness of register not extending to, 130
certificate of title, effect of deposit of, 279

whether mortgagee entitled to custody of, 265
charge, statutory mortgage called a, 205

corporeal hereditaments, compulsory registration only applies to, 44
Crown, initial registration of, 28

saving of rights of, from registration, 104
death, on, some freehold land only passes to personal representative,

372, 375
deeds registry, initial registration recorded at. 69
discharge of mortgage treated as receipt, 271

734 INDEX.

IRELAND — continued.

dower, protection of, 160

dower and curtesy in part abrogated, 375

English registration statutes do not apply to, 45

equitable estate, registration essential to passing of, 114, 115, 107

equities, ascertainment of, 51, 369

estates tail not abrogated, 375

foreclosure not mentioned in statutes, 198, 256

forgery, loss through, expressly provided for, 143, 387

fraud, jurisdiction of courts in respect of, 108, 114, 124, 130, 138, 369

full owner, registered owner may be a, 312, 313

fully warranted title, conversion of qualified title into, 52

heir or devisee still entitled on death, when, 372

incomplete investigation of title in, 7

incorporeal hereditaments not registrable, 27, 44

indemnity for " forgery or fraud," 143

indemnity, registered owner indirectly liable for, 147, 148

initial registration, caution against, 57, 62

fee or leasehold conferred by, 95
forgery, founded on title bad for, 144
indirect compulsion to, 43-45
limitation Acts confer title sufficient for, 35
power of disposition entitles to, 40
purchaser without conveyance entitled to, 33
right to, an indefeasible inchoate right, 115
subject to equities, 75

unregistered interests of beneficiaries,
113
vendor's consent necessary for purchaser's, 38
voluntary application for, form of, 46
judgment, protection of, 175
judgment creditor, remedy of, 310, 311
judgment-mortgage, 310, 360
land certificate, 22

land, ordnance map used for describing, 47
leases generally are equitable interests, 169

made registrable, 90, 169, 332
leases, no provision for transfer of, 311
leasehold land, registration of, 312, 332
legal estate, unregistered mortgage does' not pass, 194
limitation statutes, title by possession under, 80-82, 86, 87
limited owner, registered owner may be a, 310, 312, 313
lis pendens may be registered, 102, 175
married women, 41

mines must be separately registered, 26
misdescription when reetifiable, 130
mistake, jurisdiction of courts in respect of, 108. 114, 124, 130, 138, 369

register inconclusive on ground of, 129, 130
mortgage by statutory charge, 193
mortgage, title to, not expressly warranted, 195
transfer of, 311

warranty of title on, 195, 261, 313
mortgagee, no initial application by, 38

purchaser from, gets warranted title, 195
rights of, as under general law. 267
stringent powers of sale of, 217, 219, 220
transfer by, under power of sale, 310
nominee, no registration in name of, 36
notice of omission of statutory notice, 122

of settlement not notice of trusts', 121, 122. 162
to adjoining owners on fixing boundaries, 56
notice, enactment making register conclusive notwithstanding, 124,

125, 138
peculiar features of system in, 7, 8
possession, inchoate rights under, 79-81

some rights under, override initial registration. 76, 79-81
title by length of, 80, 81, 86, 87

INDEX. 735

IRELAND — continued.

priority among registered leases, 169
qualified title, initial registration with, 51, 75.
rectification in favour of title by possession, 81, 87

not made against registered purchaser, 130
" registered owner " in statutes, 22, 23

registered owner, execution of instrument by person not yet, 231
registration, completion of transfers and charges by, 114, 115
effect of possession under valid title on, 81, 82
transferee takes no estate until, 309, 310
registration statutes, 7
removal of land from register, 72, 73
restrictive conditions, registration of, 176

entries', protection of unregistered interests by, 172-177
sealing essential for statutory instruments, 193, 208, 221, 222, 233, 310
statutes prohibiting subdivision, 313
subsidiary registers', 27, 193
tenancies, registered title subject to, 79, 80
tenant for life, initial registration of, 30, 40
text-book relating to system in, 8

title, register made " conclusive evidence " of owner's, 95, 124, 138, 195
transfer, fee simple or leasehold conferred by, 95, 195, 312, 321

operation of statutory, 309, 310
transfer without valuable consideration, effect of, 106, 312
trusts, references in statutes to, 155, 156

unregistered instruments, no estate (legal or equitable) passes by, 114,
115, 167 •
rights, creation of, 114

expressly permitted, 168, 285, 286
registered burden may protect, 193
vendor's lien registrable as charge, 102, 103
volunteer, purchaser from, gets good title, 110

JAMAICA,

absolute title, registration with, 19, 23, 665, 666

adverse occupation precludes initial application, 49, 50, 668

building society mortgage, 209, 671.

buildings, value of, when excluded from damages recoverable, 149

caveat, renewal of, forbidden, 59

trustee in bankruptcy, by, 674
conveyance, initial registration in lieu of. 39, 667
corporation, application by attorney of, 50
covenant to repair runs' with the land, 238, 239
Crown grant, initial registration in lieu of, 666
Crown's right of escheat, waiver of, 378
deed, registered instrument bas not effect of, 234-236, 315
deeds registry, initial registration recorded at, 69, 669
defective title accepted with increased fee, 54, 385
donee of power, initial application by, 40
estates tail not registrable, 31. 316
foreclosure, alternative methods of, 256, 258
initial registration, applicant liable to caveator on withdrawing, 61

mortgagee must consent to. 668

purcheser may require vendor to effect, 304, 667

no compulsory, 43
land " described in advertisement," etc., 58
land, method of describing, 47, 667
limitation statutes, acquisition of title by possession under, 86, 87. 670

prescriptive right conferred by, 96
mortgage by donee of power, 212

mortgage, Hurricane Loan Acts authorize non-statutory, 206, 671
mortgagee, consent of, to mortgagor's action or suit, 268, 269

leasing powers of, 671
nominee, registration in name of, 36
patent, meaning of. 665, 666
peculiar features of system in. 17, 665
plan, subsequent registration by, 52, 667

736 INDEX.

J AMAIOA — con tin ued.

possession, initial applicant must be in, 49, 76, 668
rights under, preserved, 83, 670
title by, sufficient for initial registration, .14, (568

qualified title, initial registration with, 51, 665, 666

rates' and taxes before and after initial registration, 105, 106, 670

receiver, power of mortgagee to appoint, 671

rectification in favour of title by possession. 87

registered or unregistered title, choice of, 43, 45, 666

registration statutes, 15, 665

Settled Land Law, transfers under, 671

tenancies' not affected by initial registration, 84

tenant for life, initial application by, 32

witnesses, list of official, 673, 674
JOINT OWNER (OWNERS),

land held as, is a non-transmissible interest, 382

registration of, effect of, 160, 162, 324, 484, 521

surviving, registration of, 460
JOINT TENANT (TENANTS),

co-owners take as. 484

" no survivorship " on register of, 404, 411, 497

owners described as trustees' hold as, 538

registration of, 67, 68, 404, 411, 521, 669
JUDGMENT (and see Execution),

beneficial interest only affected by, 360-362

caution may be entered to protect, 175, 358

caveat may be entered to protect, 182, 679

charge created by, subject to unregistered interests, 360

enforcement of, 325, 358, 575, 696

foreclosure extinguishes rights under, 435, 553

lis pendens, protected by, 575

meaning of, 551, 696

registration of, 575, 585, 588

unregistered instrument and, competition between, 115, 118, 360, 588
JUDGMENT CREDITOR.

caution may be entered to protect, 175, 358

Eyre v. McDowell applies to registered land, 360, 361

disregarded in Trin.-Tob. and Ireland, 363

rights of, under general statutes, 358

registration statutes not uniform, 358, 359
JURISDICTION, meaning of word, 5

LABUAN. registration system in, 4
LAND,

area and boundaries, correction of, 3. 52

in initial application. 48, 555, 582
contract creates interest in, 111
covenant restricting use of, not sufficient for caveat, 59

not a registrable interest, ,65
deprivation of, includes buildings, 396, 506

right to indemnity accrues at date of, 150, 391, 395, 396
" described in advertisement," etc.. meaning of, 58 ■
description of parcels, amendment of, 52

description, when not identifiable by, register not conclusive, 135
equitable interest in, meaning of. 185
freehold, no longer passes to heir or devisee, 371-373
horizontally divided, is registrable, 24
identification of, on register, 3. 47. 52, 53
interest in. and contractual right, distinction between, 291

debtor's, whether an equity of redemption, 292, 293
meaning of, 59, 167, 175, 184, 390
not created by writing, distinction as to, 282
interests in, of others, to be disclosed, 45, 50
meaning of, 25-27, 403, 476, 512, 551, 579, 600, 701
recovery of, barred by omission to enter caveat, 59. 60, 122. And nee
Caveat,

from initial applicant, action for, 58
on registration by mistake, 109

INDEX. 737

LAND — continued.

registration of transactions, classification of, 2

title to expressly warranted, 98

town and country, difference in procedure, 53

undivided share in, registration of, 24, 25, 67, 68. 479

separate registration of, forbidden, 25, 26, 67. 479. 538.
582,686
value of, registered owner when liable for, 109. 147-152. And sec

Indemnity,
void as security on, some transactions are, 287
LAND BROKERS, licensed, 229. 507
LAND CERTIFICATE (and see Certificate of title),
co-owners' entitled to, 68
in England and Ireland, 22, 66-68
joint tenants in Ireland receive only one, 68
meaning of, 22
LEASE— LEASES,

annuitants, consent of, to, 432

covenant not to assign, transfer may abrogate, 146

covenants implied in, 335, 336, 426, 490, 516, 520. And sec Covenant.

of various kinds, decisions on, 340, 341
creditors' representative, disclaimer by. 355, 428
Crown or State, from, 24. 465-467, 469, 472, 473, 514

certificate of title for, 514
determination of, by re-entry and registration, 346, 347, 428 4.">0. 490,
491, 576, 620

effect on sub-lease, 348-350, 429
entry on register of, 524, 534, 547, 620, 693
easement in, short form of, 426
equitable interests, when, 168, 169, 176
extension of, statutory provision for, 348. 468
forfeiture of Crown, 467, 472
forfeiture, right of relief from, general law gives, 347

no caveat in respect of, 59. 1S5
non-registration no bar to. 342
general law of landlord and tenant applies, 335, 342, 344-348. 691, 692
incumbrance on registered ownership, is an, 332, 333, 343, 534. 091
initial registration of, reversion not affected by, 480
initial registration, entered as incumbrance upon. 64-66
how affected by, 83, 84

subsisting on. to be returned to applicant. 407
invalid, should not be registered, 344
" land," of, when leasehold included in, 334, 342
lessee, determination of interest of, 346
separate registration of, 589, 619
lessor, liability of, under covenants, 342

option of purchase enforceable by, 337
powers of, 335, 336, 346, 427, 490, 620, 648
right of recovery of land by. 454, 557, 637
license compared with, effect of, 91, 167
life or lives, for, 334, 489, 589, 619
loss of, entitles to indemnity. 386, 390
mortgage, subject to, disclaimer of, 428. 497

transmission of, 355
mortgagee, by, 216. 217, 219, 249, 334. And see Mortgagee

consent of, to. 265, 266, 270, 426, 432, 490, 515, 620. 677
new copy of, issue of, 491

notice of, by entry on register, 119, 165, 169. 265. 332. 533
occupation, an exception to registration. 74. 76. 83. 90. 168. 333. 426.

489
option of purchase in, 489. 490, 619, 677

registered transferee takes benefit of, 336. :;.'!7
whether registration necessary for protection of,
91, 333, 515, 516
owners or mortgagees, by persons who are not, 334

R.X.L. — 47

738

INDEX.

LEASE — LEASES— continued.

powers implied in, may be added to, etc., 346

quiet enjoyment, action on covenant for, 342 _

recovery of land from lessee, lessor's right of, 454, 556, 557, 637, 68o

re-entry for default, lessor's- right of, 335, 344-347, 427, 490, 620

relief granted after, 348
re-entry, improper exercise of power of, no indemnity for, 393, 506
re-entry by lessor, registration of, 428, 490, 576, 620
registration, certificate of, 619

effect of, 342, 677

estate vests in lessee by virtue of, 335, 341, 342

method of, 342, 343, 589, 619, 677, 691
1 operating without, 334

whether action on covenant before, 336, 341, 342
renewal, right of, protected by registration, 91
rent recoverable under unregistered, 341, 342
short term, for, registration not essential to, 91, 333, 349, 350. 426. 489,

515, 556, 610, 611. 619, 646, 670, 677
short term, for, whether registrable. 333, 334
statutory form of, requisites of, 335, 426, 489

wide variations allowed in, 211, 235, 337, 346
sub-lease treated as, 348, 579, 600. And see Sub-lease
subsidiary registers of, see Register
successors in title, how far covenants binding on, 338
surrender of, consent of mortgagee to, 265, 266, 349, 428, 490, 621
sub-lessee to, 490
effect on sub-lease, 348-350
on disclaimer by mortgagee, 355, 428, 497
transferee takes right of, 345
title to, warranted by implication only, 93, 344
transfer of, 317, 321, 325, 328, 424, 466, 472, 488, 534, 548, 590, 693

invalid, whether registrable, 344

liabilities of transferee on, 322, 325, 424, 489

non-alienable, 548
transmission of, on bankruptcy. 355, 428
triplicate, may be executed in, 343, 481
unregistered, how far effective. 341, 342

unregistered land, of. statutory lease compared with. 334, 335, 339
Walsh v. Lonsdale applies to, 341
LEASEHOLD {and see LEASE),

foreclosure of mortgage over, 260, 261

freehold land, separate certificates of title for, 67, 168

initial registration of, similar to freehold, 24, 25, 332, 407, 466, 522. 645

initial registration confers. 95

leasehold land, meaning of, 334, 342, 345

lessee entitled to separate registration of, 589, 619

limitation Acts confer title for initial registration, 35

loss of. entitles to indemnity, 386, 390

mortgage over, special clauses in, 214, 215

mortgagee of, liabilities of. 433, 434. 496

registrable, not uniformly, 24, 25, 66

sub-term in mortgage of, not registered land, 302

transfer from registered owner confers, 95, 312, 528

transfer of, covenants implied on, 312

method of registration of, 425, 676. 677

LEEWARD ISLANDS.

adverse possession, title acquired by, 35, 889
caveat of seizure by mortgagee, 693-695
caveat, nature of, 57

renewal of, forbidden, 59
withdrawal of, expressly permitted. 60
charge, warranty of title extends to, 98, 685
consignee's lien, 699, 700

contract, non-statutory disposition operates as. 167, 323, 68o
crop advance warrants, 695
Crown Suits Act, 686
deed, registered instrument has not effect of, 234-236

INDEX. 739

LEEWARD ISLANDS— continued.

deeds registry, contract registrable at. 71, 301

trust instrument registrable at, 72, 163, 687
disabilities, 41
equitable interests, position of, 167

mortgage, contractual right only conferred by. 285, 286. 692
mortgage by deposit, remedies under, 280, 284, 692
foreclosure replaced by judicial sale, 256. 694
fraud, register can be challenged for, 138, 700
freehold land, successor to, unchanged. 371. 372, 375
fully warranted title, conversion of qualified title into. 52, 148, 697
Hurricane Loan Title by Registration Act, 206, 689
incumbrance how created, 691
" indefeasible " title, 19, 23, 684, 685, 700
indemnity, registered owner liable for, 148, 698
initial registration, form of application for. 46
no compulsory, 43
ownership entitling to. 33, 685
withdrawal of application not mentioned. 61
intestacy, transmission to heir on. 688
judgment, order for sale under. 695, 696
land tax a first charge. 6X9. 690
landlord and tenant law, 335, 346. 691. 692
leases, how affected by initial registration, 84
no covenants implied in. 335
short, validity of. 91, 92
treated as incumbrances, 691
leasehold registration only after initial registration, 25
legal estate, continued existence of, 285, 286
limited owner, no initial registration of, 30

limitation statutes, acquisition of title by possession under, 86, 87, 689
married women, 41. 228. 699

mistake, register inconclusive on ground of, 129, 130. 134
mortgage, equitable mortgage by deposit converted into, 280, 284, 692
how created, 689

Hurricane Loan Acts authorize non-statutory, 206, 680
no covenants or special clauses in statutory, 213, 237, 252
no indemnity for loss of, under Hurricane Acts, 386. 686
mortgagee, no initial application by, 38

no powers of leasing by, 249

remedy of, is by judicial sale, 218, 247, 251, 252. 693-695
restricted powers of, as to possession. 247. 691. (593
mortgagee in possession, short leases by, 215
nominee, no registration in name of. 36
notice of initial application, when to be published, 56
notice, no general enactment as to. 120

transferee without, protected, 120
occupation, no provision for stating who is in, 49
outstanding interests treated as incumbrances, 64

mortgage, title to. is* warranted, 65
" owner " in statutes, 23. 701
peculiar features of system in, 17, 684
possession, rights under, preserved. 83, 689

title by. sufficient for initial registration, 35. 686
possessory title, initial registration with, 19. 21. 50, 87. 697

rights under possession preserved by, 87
powers of attorney. 698

prescribed forms, minimum variation in. 209, 213
qualified title, initial registration with. 51, 697
rectification in favour of title by possession, 87, 689

not made against registered purchaser. 130
registered estate [in fee simple] not to be qualified or limited, 685

or unregistered title, choice of, 43, 45. 685
registration statutes, 15. 684
sale by court, order for registration on. 325, 694
successor, registration of, when no warranty of title by, 98, 697
tenancy, registered title may override. 84

740

INDEX.

LEEWARD ISLANDS — continued.

title deeds, retention of, on initial registration, 69, 684

trusts, references in statutes to, 155, 687

undivided share, registration of, 26, 686

unregistered instrument is authority to effect registration, 115, 690, 691
transactions on footing of contracts, 115, 685

Unrepresented Estates Act, 688

will, devisee under, transmission to, 687, 688

witnesses, list of official, 701, 702
LEGAL ESTATE,

fraud, acquired by, effect of, 145

merger of, in registered ownership, 168, 194, 286

mortgagee's remedies by reference to conveyance of, 215, 216, 244, 247,
248, 267-269, 432, 433, 591, 671

registration the equivalent of, 145, 153, 165, 341, 342

unregistered assurance, whether vested by, 193, 394, 285, 286
land, mortgage by conveyance of, 290

unwarranted title, relation to, 285
LEGAL INTEREST (INTERESTS),

adverse possession is a, 76, 86, 87, 89

caveat, sometimes protected by, 172, 173

exclusion of, from register, l02

lis pendens sometimes a, 102

positive warranty of title as to, 96

restrictive entries, sometimes protected by, 172, 177

right of redemption is a, 274

short lease whether a, 91, 92

statutory mortgage confers a, 194, 195

unregistered assurance, when not passed by, 111
interest may be a, 153, 172
LEGAL PRACTITIONER (and see Solicitor),

instruments to be prepared by, 229, 507, 683
LIEN (and see Vendor),

Canada, under Mechanics' Lien Acts of, 103. 523. 581, 556, 585

deposit of certificate of title creates a, 279, 280. 519

equitable mortgage constituted by informal, 286, 287

registration of notice of, 119, 165, 169, 265, 279
LIFE ESTATE (ESTATES),

equitable interest, an, 166, 310

incumbrance on registered ownership, 166, 324, 331

legal, created by instrument of transfer, 315, 316, 324

non-transmissible interest, is a, 382

registered owner of, exercise of power of appointment by, 212, 316
LIMITATION STATUTES (and see Adverse possession, possession),

application of, to registered land, 88-90, 203, 670, 689, 700

covenants in mortgage how affected by, 203, 253, 591

extinguishment of title, effect of, 89

fee simple conferred by, 34, 35

not actually transferred by, 89

inchoate rights under, 77, 79, 82, 83, 88

initial application does not stop running of, 52

registration does not stop running of, when, 77, 80, 82

leasehold interest conferred by,. 35

length of possession necessary under, 79

method of operation of, 89, 90

mortgagee how affected by, see Mortgagee

registration statutes and, relation of, 55, 82, 88, 89, 96, 99, 203

security by transfer and defeasance, what period applicable to, 292-294
title by possession under, 77-89, 203, 416. 670, 689, 700
LIMITATION, WORDS OF,

estates of inheritance, unnecessary for, 164, 310, 314, 323, 324, 330, 416,

507, 571, 587, 663
gift without, entitles to initial registration, 38
trust instrument, in, 164

INDEX. 741

LIMITED OWNER,

initial registration of, 30

meaning of, 30, 313

registration of transmission from, 375, 376
LIQUIDATION,

by arrangement, 353. And see Cbeditob

company, of, registration of order of, 357

liquidation registered on, 357
LIS PENDENS,

capable of protection, bow far, 102. 183, 679

caveat, when treated as a. 183

judgment protected by, 575

not to be registered, 536

notice, wben not, 120

registered title subject to, 556

registration of, 575, 585, 593

right to registration, does not affect owner's, 102, 461
LITIGATION,

indemnity paid without, 395, 457, 505, 637, 638

representative pending, appointment by Court of, 459, 706
LOCAL AUTHORITY,

caveat in respect of public road, cannot enter, 58, 59

registration of, set aside, 133

roads, rights as to, 533

sale for overdue rates by, 318
LUNACY, see Disabilities

MANITOBA,

adverse possession, title by, overrides initial registration. 76, 82
application, land subject to new system by filing of, 63. 582
building restrictions, statutes correcting errors in, 186
caveat, effect of entry of, 160, 575

registrar not liable for entering, 60

renewal of, when permitted, 59, 596

special procedure under, 58, 61, 62. 597

void transactions not protected by. 287

withdrawal of, expressly permitted, 60
caveator in possession made plaintiff, 58
certificate of title, date of, how fixed, 585

chattels', securities for purchase money of, avoided, 117. 167, 182
Court, jurisdiction of, 595
creditors' assignments, 160, 594
Crown, grant from, increased fee if after ten years, 54. 583

initial registration of, 28
death of executant, validity of registration after, 118, 599
deed, registered instrument has not effect of, 234, 236. 315
deeds registry, contracts registrable at, 71, 301, 581
dower partially revived in, 169, 229
executor may transfer to himself, 316, 324, 330, 587
fraud, register inconclusive for. 139, 586

notice differentiated from, 139
homestead, protection of, 169
incumbrancee, initial application by. 38

initial registration, any interest in land entitles to. 33, 36, 38, 581
application for, form of, 46
\ withdrawal of. 61

safe-holding title a condition of, 62, 583
joint owners, no provision for transfer to, 160
judgments, etc., all registrations subject to registered, 160, 585
judgment creditor, remedy of, 311, 325
land, area of, in initial application, 48, 582
land " described in advertisement." etc., meaning of, 58
lands added to, registration of, 581
leases generally made registrable. 90, 589
leases', short occupation, unaffected by registered title, 82. 90
leasehold registration, implied authority for, 25, 589
lis pendens may be registered, 102. 586
married women not mentioned in statutes. 228
mistake, omission of easement not included in, 135

;42 INDEX.

MANITOBA — continued.

mortgage, acceleration clause in, 252, 254, 274, 275, 594

on, certificate of title deposited at registry, 264, 2<i5, 504
. outstanding, treated as if land unregistered, 64, 580
mortgagee, application for initial registration by, 37, 38
express leasing power of, 215, 249, 591
registered title of, protected against adverse possession of

owner, 85
sale by, may be without notice, 251, 592
new system, " subject to " and " under," distinction between, 52. 580
" no survivorship " entry, no provision for, 160
nominee, transfer by registration of, 36, 37, 582
notice, fraud differentiated from, 139
notice of initial application, when to be published, 56
occupation, no provision for stating who is in, 49
party wall agreement, rights under, pass on transfer, 328, 588
peculiar features of system in, 14

plan, prohibition of sale by unregistered, 302, 326, 330
possession, acquisition of title by, forbidden, 85
purchasers, no enactment specially protecting, 139
• registrar a necessary defendant in action for wrongful registration. 149,
597
registration statutes, 13, 579
removal of land from register, 72, 73, 583
sub-mortgage expressly provided for, 203, 263, 590
tenant for life, initial registration of, 31, 33
tenant's agreement to purchase fee simple, effect of, 83
time limit in action for wrongful registration, 150, 598
title deeds, no provision as to, 49
trusts formally recognized and protected, 160, 585
unregistered instrument, interest passing by, 117

right to l'egistration conferred by, 3 17. 589
will embodied in register, 160, 378, 585.

wrongful registration, fraud or wrongful act essential in action for, 149.
597
MARRIED WOMAN (WOMEN),
acknowledgment by, 425, 699, 706

deemed a feme sole, 41, 228, 502, 540, 663, 665, 677, 706
execution of instruments by, 228, 229, 699, 706
fraudulent dealing with, 142

husband, registration of, as joint owner, 459, 460, 672, 673
husband's debt, transfer as security for, 293
initial registration of, 41, 105

life estate with power of appointment, registered as owner of, 212
marriage, entry on register of, 497, 641, 672

power of attorney not revoked by, 500
power of attorney, may execute a, 673

registration statutes, in, position of, 40, 41, 228, 220. 324, 460, 502
transfer to or from husband authorized, 424, 488, 641
MARRIED WOMEN'S PROPERTY ACTS, registration statutes, relation

to, 41, 229, 403, 472
MERGER,

of lease in fee simple, 337

legal estate in registered ownership, 286
mortgage in ownership, 239, 240, 243
MINES,

registration of, 24, 26
reservation of, in transfer, 324

roads, under, remain vested in owner, 616, 618, 660
royal, exception from registration, 104
sub-surface rights in, how registrable, 331, 578
transfer does not always pass, 312, 537, 538
MINOR— MINORS (and see Disability),

fraudulent dealings with, 142
MISDESCRIPTION,

boundaries, of, meaning of bona fide, 122, 123
double registration and, distinction between, 132-134

INDEX. 743

MISDESCRIPTION— continued.

exception from conclusiveness of register, 413. 4S4, 638

indemnity for loss by, when recoverable, 455, 505, J}4^. 574, 597, 638. 658

parcels, of, conclusiveness of register, 97, 98, 134
inconelusiveness of register, 132-135

recovery of land registered wrongly through, 454, 557. 637

registered owner remains liable after transfer, 149

want of title and, distinction between, 130. 133
MISTAKE,

common, in case of, rectification not always allowed, 131

" counting the land twice over," 130, 134

easement, omission of, 132

fraud, treated like, 129

indemnity as a remedy for, 130. 131. 388. 389, 390

initial registration by, founded on defective title, 109, 131

jurisdiction of courts with respect to, 108, 109, 130

kinds of. distinction between different. 130. 132-134

lease registered by. loss of. entitles to indemnity, 390

misdescription, what are cases of. 133-135

mortgagee not affected by mortgagor's, 122

owner in possession ousted by, 75

plan, effect of mistake in, 319

purchaser not affected by vendor's, 122

purchasers and volunteers, distinction between, 107, 109

rectification as a remedy for, 130

remedies for, 129-136
MOHAMEDAN LAW,

foundation of jurisprudence in Fed. Malay States. 16

mortgage by conditional sale under, 292

ownership under, is registrable, 24

MORTGAGE (and see Charge),

acceleration clause, effect of, 252, 254, 274, 275

relief against, 594, 626
agreement to give, equitable mortgage constituted by. 286. 287

void instrument operating as. 117
building society, 209, 231, 271, 290, 293, 671
caveat, may be protected .by, 289. And sec Cavkat.
charge and, distinction between, 295, 297, 430
collateral security, effect of foreclosure on. 240. 241. 260. 435. 436, 553,

648
completion of, mortgagee controls methods of, 232
covenants for payment :

barred under limitation Acts1, 241. 252. 253. 591
discharge mav not extinguish, 240. 274
foreclosure may extinguish. 240, 260. 277, 435. 436. 553
power of sale, effect of, on, 240, 253. 254
transfer to purchaser, effect of. on, 240, 270
created bv means of charge. 20, 19x. 193, 205. 207, 208. 236, 276, 290.

316, 430. 491. 525, 621
transferring land to mortgagee. 192, 289
debentures, securing, see Company.
debt, trusts, of, enforceable, 157, 424. 489. And see Deist.

whether simple contract or specialty. 235, 236
default in payment of interest, effect of. 252, 254. 274. 275
under mortgage, notice after, 250-253, 430. 591

proof of, when required. 254. 255. 431
defeasance agreement and transfer, resemblance of, to, 292, 293
demand for payment under, 221, 240. 253. 430
" demand." 221. 253, 430

discharge of. 270-275, 277, 436, 494, 524. 526. 576, 590. 626, 651. 652
effect of. on covenants for payment. 240, 274
mortgagee's powers continue until registration of, 273
production of certificate of charge on. 594
transfer in lieu of. 270, 272. 626. 651
vesting order in lieu of, 367
English form, in, when unregistrable, 286

744 INDEX.

MORTGAGE— continued.

equitable principles applicable to, 258

security, is, before registration, 233

extension of, statutory provision for, 468

foreclosure of, effect on rights of parties, 240, 241. And see Fore-
closure

further advances, security by way of, 264, 266, 267, 525

initial registration, how treated on, 38, 64, 65, 194, 199, 200. 524. 589
existing at time of, registration of, 194, 197, 199,
524, And see Outstanding interests

interest in land, is an, 202, 207, 208, 386

interests in, can be created and protected, 197, 199, 203, 204, 207

joint account, discharge of, 272, 273, 651

registration of surviving owner of, 383, 460, 673

landlord and tenant, when relation created by, 244-246

lease subsequent to, effect of, 265, 266, 270

leasehold, of, covenants implied in, 239

special provisions as to, 247, 248

legal security, registration converts into, 233

loss of, entitles to indemnity, 202, 208, 386

meaning of, 476, 552, 579, 600, 644

money, payment of, after registration, 232

non-mortgage charge should not embody, 298

non-statutory, mortgagee has ordinary remedies under, 198, 199, 288

notice of, registration operates as, 119, 192, 196

part of, transfer of, 261, 262, 325, 528, 529, 590. 628

power of sale when to be expressly inserted in, 250, 525

exercisable after covenant statute-barred. 253, 254

power of appointment over fee simple, by donee of, 316

rectify, power of Court to, 136

redemption, owner's right of, cannot be restricted, 220

registered and unregistered land, of, distinction between, 290, 339

registration of, action on covenant before, 220, 239
method of, 233
mortgagee effects', 232

registered ownership not transferred by, 275, 276, 286, 430, 491. 590

release of land from, 271

sale by court, 256, 493, 694

statutory, attestation essential to. 209
attornment clause in, 214, 216
beer covenant in, 215, 274
blank, may be signed in, 236
charge another name for. 205, 208
contributory, is valid, 213

covenants implied in. 208. 209. 237-239. 432, 433
duplicate, certificate of charge in lieu of, 230, 231
economic identity of, with ordinary mortgage, 212
equitable mortgage, analogy to, 252
execution in duplicate, 230, 231, 271-273
express powers conferred by, 197, 204. 208. 269. 270
foreclosure under, 257, 432, 526, 593, 625, 648. And see

Foreclosure.
form of, variations allowed in, 209-220
framed as deed poll, 208, 209

gross sum of money may be secured by. 296-29S
incorporation of registered instrument in. 214, 215
landlord and tenant relation created by, 216. 244-247. 269
leasehold, over, special clauses in, 214, 215
legal interest conferred by, 194, 195. 200, 208
limitation statutes, application of. 591
new provisions may be introduced into, 211-214
operates as security not transfer of land, 206, 207, 430, 491.
590, 622
by way of charge, 207, 208, 211. 270, 334, 339.
power of sale in, 430, 492, 525, 526, 591, 592, 624. 625. 649
privileges of, when non-statutory mortgage gives, 199, 200
registration essential to, 205, 206, 220, 221
sealing not usually necessary for, 198. 526. And see Sealing.

INDEX. 745

MORTGAGE — continued.

statutory charge resembles, 297
subsidiary ownership created by, 194, 199, 201
unregistrable equitable mortgage constituted by, 286. 2S7
unregistered instrument not to be incorporated in, 213
valid as contract before registration. 111. 205
surety for mortgagor entitled to indemnity for loss, 388
surety, covenants by, 214, 260. 263
title to, warranted by implication only, 98, 196, 200-202
transfer and defeasance not properly a, 289
transfer of. 203, 261, 317, 321, 325. 328, 424. 488, 528, 590, 627

in lieu of discharge. 270, 272, 626, 651
transferee of, title conferred on, 195
unregistered, equitable mortgage by deposit of, 283
unregistered land, collateral mortgage over, 213
unregistrable, creates mere personal right, 117, 167
MORTAGAGEE,

absent, discharge of mortgage by, 272, 436. 495, 627.
application for initial registration by, 37. 38, 40. 59. 405, 521
caveat, bas interest sufficient to support. 59. 178, 179, 207
certificate of title of owner, rights as to, 264, 265. 437. 622
collateral security, effect of foreclosure on, 435, 553. And see Fore-
closure.
conclusiveness of register in favour of, 122, 134
consent of, to mortgagor's initial application, 38
death of, transmission of unregistered mortgage on. 232
distress, right of, 243-246, 432. 492. 590. 591

foreclosure, application for, by, 257, 432. And sec Foreclosure.
fraud or mistake, not affected by mortgagor's, 122. 132. 134, 135, 139
further advances' by, 264, 266, 267. 525

initial registration, application for, in exercise of power sale, 37, 405.
479, 521
consent to mortgagor's. 38. 405, 479, 521
interest in land, meaning of mortgagee's, 207. 208
judicial sale, right to bid at. 493, 695
landlord and tenant law how far applicable on distraining, 244, 246

taking possession, 269, 495
lapse of time, how far rights affected by, 85, 196. 203, 241, 591
lease, of. liabilities of, 433, 434, 496
lease vested in, on disclaimer by creditors, 355, 428
misdescription, when not affected by, 134, 135
money received in respect of mortgaged land, entitled to, 266. 434
notice, further advances made without, 266, 267. 525
possession, right of entry and, 246-248, 432. 492. 495. 623. 624, 693
power of leasing, conventional, when valid. 217. 219
conferred by statute, 249. 624, 671
sale, conventional, whether valid. 217-219

improper exercise of, remedies for. 255. 431

registered ownership vests in purchaser under. 104. 2."0.

252. 254. 317. 431. 432. 492. 592, 625
statutory, 249-255, 430. 431. 591
title bad for irregular exercise of, 55
powers of. in Canadian and Australian statutes compared. 14. 217. 218.

220, 251
priority of new, how preserved. 270
purchase money received by, disposal of. 255, 431. 492
purchaser from, gets warranted title, 202, 259, 432, 492

rights of, before registration, 126, 171, 254
includes, 551
receiver, power to appoint, 288. 432, 671
recover land from mortgagor, right to, 454. 556. 637
registered ownership not vested in, under statutes. 191, 207, 430
registration, independent right to, 232
removal of land from register by. 73. 199

i isrhts of, bv analogv to unregistered land. 215. 216. 244, 245. 247-249.
266-269, 432. 433. 671, 677, 678

746 INDEX.

MORTGAGEE— contained.

rights of, under statutory mortgage, 236 et seq., 430 et seq., 492 et seq.,

526, 590 et seq., 623 et seq.
second, can only distrain with assent of first mortgagee. 245
cannot redeem against unregistered purchaser, 171
payment of interest on first mortgage by, effect of, 270
statute-barred, whether consent to initial application necessary, 38. 59
surrender of lease, consent required for, 349

refusal to accept lease operates as. 350, 428. -197. 670
tenants of owner, may adopt, as his own, 240
title by possession against owner when not acquired. 85
title of, protected against defect in previous registration, 277

to mortgage, mortgagor need not search, 119
transfer of land to, on sale by Court, 256, 493, 494

whether mortgage extinguished by, 239, 240. 243
transferee from, how far title warranted, 195, 259, 432, 625
MORTGAGOR (and see Redemption),
actions by, not to be brought, 434
caveat by, against mortgagee, 270
consent of, to mortgagee's initial application, 37
initial registration of, 37, 38, 405, 479, 521

redemption by, purchaser from mortgagee can resist, 12f>, 254
remedy of, for improper sale, 255
restriction of rights' of, to deal with property, 264-266

NEGLIGENCE,

caveat, omission to enter, may be, 172. 544

contributory, a bar to indemnity, 391-394, 544

delay in registering may be actionable, 233

priority lost by, 172

judicial declaration of title, registration of, 4

possession, acquisition of title by, forbidden, 85
NEW SOUTH WALES,

absentee owner, application by attorney of, 50

adverse occupation, initial application notwithstanding, 49
possession, title by, initial registration overrides, 50

appointment of new trustees, registration on production of 366, 367

buildings, rightful owner pays value of, on recovering land, 135. 151

caveat, special procedure under, 58, 61, 62

conditional purchase, mortgage of, 289

conditions of sale in, 54

corporation, initial application by attorney of, 50

donee of power, initial application by, 40

fraud, mere notice not to be imputed as, 123

initial application, withdrawal of, 61

land, contiguous parcels of, in same application, 4(8

law and equity administered separately. 341

lease, right to, under imperfect power, 34

leases, how affected by initial registration, 84
short, validity of, 91, 92

leasehold registration, no separate register for, 25, 65-67

mistake, registration by, remedy of rightful owner on, 135

mortgagee has implied power to lease, 249, 268

mortgagee's right of distress as under mortgage by conveyance, 244. 245.
268

notice, enactment making register conclusive notwithstanding, 123

outstanding mortgages', provision for, 65

registration statutes, 8. 75, 401

remainderman, registration of, 67

rent not recoverable under unregistered lease, 341

tenancy, registered title may override, 84, 91, 92

text-books relating to system in, 12

Victoria, registration statute modelled on repealed statute of, 75

INDEX. 74;

NEW ZEALAND.

absentee owner, application by attorney of. 50

adverse occupation, initial application notwithstanding, 49

abstracts' of title not used, 305

adverse possession, title by, overrides initial registration, 76. S2

bankruptcy, transmission on, amendment of law as to, 158, 1.19. 356, 496

caveat, renewal of, when permitted, 59, 500

withdrawal of, expressly permitted, 60, 500
caveator, consent by, to withdrawal of initial application, 61
certificate of title, mortgagee entitled to custody of. 264, 496

no separate, for remainderman, 67
charging order, registration of, 317, 358
Crown, saving of rights of, from registration, 104
Crown grant, certificate of title in lieu of. 477
deeds registry, omission to register at, indemnity barred by, .'!i>2, 483

when Crown grant not registrable at. 480
district agent, registration effected through. 483
donee of power, initial application by, 40, 479
equitable mortgage by deposit abrogated, 178, 182. 191, 192. 278. 282,

283, 285
estoppel, doctrine of, applied to purchaser's' title, 146
foreclosure replaced by judicial sale, 256, 493

indemnity, improper use of corporation's seal gives no right to, 226,
393, 506
loss through wrongful inclusion of land in certificate entitles

to, 388
registered owner indirectly liable for. 147, 148
initial application, plan required with, 47

withdrawal of, 61
lease from Crown only registrable as leasehold land, 24
leases, short, registration not essential to. 82, 84, 85, 91
local deeds' registration system in, 5
mortgage, alternative forms of, 209, 491

alterations in, by registered memorandum, 491
charge included in, 297, 476
covenants implied in, 491

variations in, sub-mortgagee must consent to, 494
mortgages under repealed statutes, rights under, 474, 475
mortgagee, registered title of, protected against owner's adverse posses-
sion, 85
remedies of, are those of a landlord, 216, 495
Property Law Act, construction of, 475

powers of attorney subject to, 501
public trustee, payment of mortgage debt to, 495
registered land, what land is already, 477
registrar may be nominated a trustee, 158, 498
registration districts, alterations in. 482

statutes, 10, 474
notice of claim under unregistered deed, 398, 483
plan, right of way created by depositing, 319, 503
possession, acquisition of title by, forbidden, 85, 484

initial registration is subject to rights' of, 82, 486
printed forms of instruments, use of, 507
remainderman, registration of, 67

repealed statutes, certain rights under, preserved. 474. 475
sub-leas'e protected on surrender of head-lease, 348, 349, 490
sub-mortgage, enactments relating to, 203, 251, 261. 263, 272. 475. 494
tenant's agreement to purchase fee simple, effect of, 83, 489
tenants in common, separate registration of, 68, 485
text-books relating to system in. 12
title deeds', deposit of. confers no interest in land, 59
transfer by sheriff, rules as to, 317

triplicate, instruments other than transfers may be in, 481
"trustee" less frequently mentioned in statutes, 158
witnesses, list of official. 502

748 INDEX.

" NO SURVIVORSHIP,"

joint tenants, endorsed on register of, 404. 411, 497, 539, 639, 640

meaning of, 539

trust protected by entry of, 155-160, 162, 687
NOMENCLATURE, ambiguities in, 19-22
NOMINEE,

caveat, must be party to proceedings under, 58

conveyance to, pending initial application, 60

purchaser registered as mortgagee's, 37
vendor's, 39

registration in name of, 36, 37, 405, 480, 582

transfer by registration of, 37, 39, 582

of mortgaged land to mortgagee's, 243

withdrawal of application, must be party to, 480
NORTH-WEST TERRITORIES,

Alberta formerly included in, 71

bishop or church trustees made bodies corporate, 378, 379, 381, 664

caveat, entry prior to initial registration, 171
lapse of, for want of proceeding, 664
only one kind of, 57, 62

contracts, jurisdiction of court preserved over, 108, 117

deed, registered instrument has not effect of, 234-236

deeds registry, history of former, 71

descent of land, 662

dower and curtesy abrogated, 662, 663

estates tail abrogated, 324, 662

fraud, jurisdiction of courts preserved as to, 117

grant from Orown, indemnity for land included in more than one, 395,
664,
title otherwise than by, 36

indemnity, action for, not required in case of misdescription, 150

initial registration, any interest in land entitles to, 33, 36, 38
non-entry of caveat gives no right to, 55

leasehold registration, implied authority for, 25

limitation statutes, application of, 88

married women, 41, 663

misdescription of parcels, register not conclusive in case of, 97, 135,
140, 149, 150

mistake, omission of easement not included in, 135

mortgagee, application for initial registration by, 37, 38

power of sale not conferred on, 218, 249, 252, 325, 662
proceedings by, to enforce security, 663

nominee, implied authority for registration of, 37

notice of initial application, when to be published, 56

parcels, register not conclusive as to, 135

peculiar features of system in, 14, 662

possession, no power conferred on mortgagee to take, 246

powers of attorney, 663

registration statutes, 13. 662

Saskatchewan formerly included in, 71

tenancies not affected by initial registration, 84

tenant for life, initial application by, 31, 33, 67

title deeds at registry open to public inspection, 68

unregistered instrument, interest passing by, 117

will, devisee takes no interest under, 662 '
NORTHERN TERRITORY OF AUSTRALIA, South Australian statutes

in force in, 5, 9
NOTICE,

action for indemnity, of, 398, 457, 505, 598, 637

breach of covenant, of, transferee of lease with, 344

buildings erected with, of wrongful registration, 396

caveat when not, 120

conclusiveness of register cut down by, 120, 122

notwithstanding, 97, 120-125

constructive, register protects against, 97

default under mortgage, of, essentials of, 253, 430

INDEX. 749

NOTICE — continued.

equitable interest operating by way of, 75, 97

mortgage protected by, 288
fraud and, connexion between, 121, 123-125, 127, 128, 137, 139-142,
441, 639
apart from, 142
fraud, treated as, 313

general enactments relating to, construction of, 125, 127
initial application, of. publication of, 56
intended registration, of, claims barred by, 123, 150
lease, of, registration of, 119, 164-166, 176, 533
lis pendens is* not, 120
mortgagee, of sale by, 221, 250, 251, 253, 430, 591, 624, 649

to, of subsequent incumbrances, 267
plan operative in giving, to purchasers, 311, 319
purchaser not affected by omission to send, 106, 122, 541, 573, 641

without, when protected, 294, 358, 707
register, entry on, is, of registered instrument, 234, 276, 565

is not necessarily, 97, 119, 120, 309
register operates as, of equitable interests, 97, 176
registered title conclusive in face of, 120, 121, 124. 536, 570, 707
registration of mortgage, may be given before, 221, 253

purchaser, of defects in title before, 254, 294
transfer of mortgage not always, 262, 263
registry, to, of adverse possession, 75

proceedings under mortgage, 593
rejected instrument is not, 547
registry, by, of application for registration, 417
entry of caveat, 406
other proceedings, 418
restrictive condition, entry of, on register is, 539
rights protected by, when excluded from register, 102
sale by mortgagee without, 592

time of receiving, how priorities affected by, 125-127, 254
trust, of, description of person as trustee is' not, 538

of intended breach of, purchaser affected by, 129
entries protecting, are, 161, 162
unregistered deed in N. Zealand, of claims under, 398, 483

interest, of. person dealing with owner not affected bv. 123,
441, 639, 660, 661
vendor and purchaser, as between, 122
writ of execution, of. when not material. 97, 121, 441
NOVA SCOTIA,

New Brunswick statute modelled on, 4
peculiar features of system in, 14
possession, acquisition of title by, forbidden, 85
registration statute, 13

OCCUPATION (and see Possession),

adverse to initial applicant not contemplated, 49

continuous, what is', 82

initial registration, applicant for, must state who are in, 49

leases, an exception to registration. 74, 83, 84, 90, 91, 16S, 523

licensee in, has rights of tenant, 91

owner in, ejectment by mortgagee of, 247, 248

whether mortgagee can distrain on, 244, 245

persons in, rights of mortgagee against, 432

rights of persons in. at initial registration, 74, 76, 77, 4S6. And see
Possession.
ONTARIO,

absolute title. 19. 21. 23. 520

initial registration with. 521

adverse possession. English repealed section as to. 524

assurance fund only liable so far as sufficient, 543

boundaries, conclusiveness of register not extending to, 130, 523. 539

caution against initial registration, 536

caution, renewal of, 57, 534, 536

750 INDEX.

ONTARIO— continued.

caution, second, may not be entered, 535

certificate of ownership, 21, 537, 548. And sec CERTIFICATE of title.
effect of deposit of, 279

on completion of initial registration, 522
right of owner to production of, 527
charge, statutory mortgage called a, 205, 525

warranty of title extends to, 98, 525
companies register, 227, 549, 550

creditors' assignee, transfer to, 156. 312, 351. 352, 547. 548
Crown, initial registration of, 28, 520

saving of rights of, from registration. 104
Crown Timber Act, licenses* under, 523
curtesy, protection of, 169, 534
debentures, title to. not wan-anted, 538

Devolution of Estates Act, heir or devisee entitled under, 529
donee of power, initial registration of, 40, 520
dower, protection of, 169, 528, 534

easements, registration of appurtenant, 27, 522, 537 •

execution, caution on, must be renewed, 534
protection of, 175
transfer under, 310, 529, 530
Execution Act, proceedings under, 530
extension of sys'tem, local by-law' effecting, 545
fraud, exception of, to conclusiveness of register, 124, 137, 543
no general enactment as to, 136
rectification of register on ground of. 137. 541
when essential to action for wrongful registration, 149, 543
heir or devisee, liability of. for debts, 529
highway, rights to be registered in res'pect of. 56, 524. 533
incorporeal hereditaments, registration of. 26. 27. 537
incumbrances, initial registration subject to, 520, 524

interests not deemed, list of, 523
indemnity as a form of conclusiveness of title, 145
inhibition against registered dealing, 535

initial registration, action for wrongful, fraud not essential to, 149
caution against, 57, 62, 536
compulsory, 42, 546
fee simple or leasehold conferred by, 95
forgery, founded on title bad for, 144
subject to unregistered interests of beneficiaries, 113
voluntary application for, form of, 46
initial registration of purchaser, mortgagee or trustee may authorize, 521

vendor's consent to, 38, 520
judgment creditor, rights of, 358
judicial declaration of title, 1. 4
land, method of describing, 47, 539

lease, entry on register of determination of, 365, 524. 534
protected by " notice," 164-166, 169, 247, 311, 332, 533
transfer of, entered on register. 534
leasehold land, registration of, 332, 522

transfer of, 528
legal estate, effect of, 111, 194

unregistered mortgage does' not pass, 194
lis pendens protected by caution, 102, 175, 536
married woman on footing of feme sole, 41. 228
mechanics' lien, 523, 531. And see Lien
mines must be separately registered, 26, 537. 538
mistake, register inconclusive on ground of, 129. 130. 54.*!
mortgage, by statutory charge, 193, 525

foreclosure effected by proceedings in court. 198. 526
power of sale to be inserted in, 250, 525
title to, expressly warranted, 195, 525
transfer of, 311, 528

warranty of title on, 313, 52S
mortgagee, certificate of charge to be given to, 525
entry and possession by, 246

INDEX. 751

ONTARIO — continued.

mortgagee, registration of purchaser by authority of. 37. 40. 521
stringent powers of sale of, 217, 219, 220. 525, 526
transfer by. under power of sale. 310. 520
nominee, registration in, name of. 36, 520, 521
notice on registering free of highway, 56, 524

notice, enactment making register conclusive notwithstanding, 124, 536
entries on register expressly made, 119, 533, 534
rejected instrument is not, to registry, 527
outstanding incumbrance, no warranty of title by entry of, 65, 524
" owner," meaning of. 520
peculiar features of system in. 7, 14. 520
Planning and Development Act, plans subject to, 541
possession, acquisition of title under, forbidden, 83. 85, 524
possessory title. 19. 21. 50. 85, 520

initial registration with, 522
warranty of title given by. 98. 99
public highway, registration free from, 524
public inspection, register not open to, 70, 545
qualified title, initial registration with, 51, 522
rectification not made against registered purchaser. 130, 543
registered notice, 175, 176. 533, 534
ownership, nature of, 168

owners', number of, not restricted. 538, 539, 549
registration, completion of transfer or charge by. 113, 525
transferor remains owner until, 309. 528
statutes. 12. 520

rules under. 546-550
registry officers, powers of, 545

Registry Act, priorities when governed by. 197, 524, 525
Religious Institutions' Act. transfer to trustees under, 527
removal of land from register. 72, 73. 544, 545
restrictive conditions, registration of. 176, 539

entries, protection of unregistered interests by, 172-177, 535
sale by mortgagee, entry on register of, 547

sealing unnecessary for statutory instruments, 193. 222, 310, 526, 540
Settled Estates Acts, 40
standing timber, agreement for sale Of, 535
sub-mortgage by transfer and agreement, 263, 547
taxes, transfer on sale for, 310, 311, 531
tenancies not affected by initial registration, 84, 523
tenant for life, initial registration of. 30, 40
tenants of mortgagor, mortgagee's relation to. 246
title deeds, no provision for concellation and custody of, 68
transfer, fee simple or leasehold conferred by, 95. 195, 312. 321, 527

operation of statutory, 309, 310
transfer without valuable consideration, effect of. 106, 312
transferee of mortgage, and mortgagor, accounts between, 263. 528

title warranted. 195. 261. 528
trustees for sale, initial application by, 32, 40, 521
trusts', notice of, excluded from register, 156, 538
unregistered interests, creation of. 113. 114. 168

expressly permitted. 168. 285, 286. 532
volunteer, purchaser from, gets good title, 110
writ of execution, renewal of, when allowed. 530
seizure under, when effective, 530
wrongful registration, no time limit in action for. 149
OUTSTANDING INTERESTS.

initial registration, on completion of. 45. 63-65, 70, 484. 524
meaning of, 483

priority of, inter se not affected, 65, 483, 524. And see PBIOBITY.
qualifying incumbrances, referred to as, 64

remedies of owner of, not affected by registration of land, 65, 73
treatment of, as under old or new system. 64. 65. 437, 439, 483, 524
OWNER— OWNERS ,

absentee, initial application by attorney of, 50. And see Initial

REGISTRATION.

T52 INDEX.

OWNER— OWNERS— continued.

adverse claims not enforceable against registered, 94. And sec REGISTER.

conclusiveness of register not the same for all, 94

meaning of, 23, 552, 579, 600, 701

mistake as to identity of, may be misdescription, 133

number of persons Who may be registered as, no limit to, 50, 538, 548

person registered as, gets warranty of title, 2, 94, 96

possession, in, effect of initial registration on, 84. And see Possession.

registered, title of hostile claimant transferred to, 96

unregistered interests enforceable against, 113, 114

synonym of "proprietor," 23

tenant for life becomes, on registration, 30 '

title of registered, is as stated on register, 94

unascertained, effect of long possession against, 79
OWNERSHIP (and see Possession; Registration),

badge of, registration replaces possession as, 74

certificate of, in Ontario, 22, 66-68, 522. And see Certificate of
title.

evidence of, register is, 24, 74

initial registration, legal or equitable entitles to, 28, 33

outstanding interests qualifying, 64

registrable, every kind of ownership is. 24, 66

separate registration of, one certificate of title for every, 67
" OWNERSHIP AND INCUMBRANCE OF REGISTERED LAND." judi-
cially cited, 141, 153, 187, 306

PAPUA,

a territory of the Commonwealth, 5, 10

buildings, rightful owner pays value of, on recovering land, 135, 151

Crown leases, register of, 472, 473

deeds registry, none in, 71

equitable interests and fraud, jurisdiction of courts preserved as to. 108,

117, 139
indemnity for wrongful registration, 148
initial registration compulsory, 42, 43, 148
lease, suspension of covenant to pay rent, 336

lease containing right of purchase or renewal, registration on caveat

necessary for, 91
from Crown only registrable as leasehold iand, 24
leases, short, do not require registration, 90, 91
limited owner, no initial registration of, 30
limitation statutes, application of. 88

mistake, registration by, remedy of rightful owner on, 135
" nomination of trustees," 157

notice of trusts, purchaser or mortgagee not affected by, 122
notice, enactment making register conclusive notwithstanding, 123. 125
possession, registration equivalent to, 74
power of attorney, non-revocation of, 225
public inspection, deposited documents open to. 69
registration abstract not provided for, 20, 471

statutes, 10, 471
sealing necessary for statutory transfer-charge, 198, 221, 315
tenancies not affected by initial registration, 84
transfer and charge, statutory form of, 314, 315
transfer, voluntary, on same footing as for value. 107, 123
unregistered dispositions, jurisdiction of courts preserved as to. 117

instrument, right to registration conferred by, 117

mortgage, transmission of, 232
vendor's lien abrogated, 103
PARCELS.

area of. not warranted, 394, 539
description of, by plan, 319. And see Plan.
in general terms, 351
on register. 563
inaccuracy of, on sale by Crown, 394, 395, 457

INDEX. 753

I * ARCELS — co tit inued.

register not conclusive as to, 135. 413. 484, 539, 556. And see Mis-
description.
several, same folium of register may contain. 409
PATENT (and see Crown (J rant).
from Crown in Canada, 22, 580
Jamaica, 665
PERSONAL REPRESENTATIVE (and see Exectjtob),
bankruptcy assignee, of, not registered as successor. 381
registered, holds as absolute owner for purpose of disposition, 376 381.

And see Transmission.
land not liable for debt of. 382
registration of. when not necessary, 376-378, 381
right to registration as owner, 373 et seq.
trustee, is similar to, 382
PLAN— PLANS.

building restriction cannot be created by, 319
dedication of road made by deposit of. 569. 584

not made by deposit of. 503
description of parcels by, 319
easement created by. 503

not created by. 315. 319. 326
easement, of land subject to. 468
initial registration by, see Jamaica.
initial registration, on, 47, 48, 446. 447. 479. 503. 675
notice to purchasers given by, 311. 319
public documents, are not alwavs. 70
register, embodied in. 319. 326, 503
registration of, vests roads in Crown, 616. 660
roads, minimum width of. on. 540
sale, only binding after, 541

subdivision, of. registration of. 540, 568, 615, 659
subsequent transactions, on. 48. 311, 318. 319. 326. 446. 447. 503. 569.

614-619
title, not a document of. 319. 326

unregistered, sale by. invaliditv of. 302. 326. 330. 569, 615, 660
POSSESSION.

amount paid to recover, measure of indemnity by. 396

applicant for initial registration must be in, when. 49. 50. 76. 668. 675.

676. 704
covenant against parting with, by lessee. 340
defence in action for recovery of land. 78
demand of. by mortgagee, when necessary. 268
deposited plan, effect of possession under. 319
donee let into, rights of, 374
lease determined by lessor taking. 428. 490. 620

lessor, right of. to re-enter and take. .335. 344. 345. 347. 427. 490. 620
meaning of. 601. 703

mortgagee, right of. to take. 215. 216. 246-248. 269. 492. 495, 591
mortgagor in. covenant implied against. 623
non-proving executor in. 380
out of, declaration of title of owner, 50
power of leasing included in right to take, 216
purchaser let into, independent fee simple vested in. 92. 93

on completion. 307
rectification in favour of person in. 543
register, an exception to conclusiveness of, 74. 94
register is evidence of right to, when, 78

registration and. conflict between. 52. 74-93. \<n4 see Adverse Posses-
sion.

inferior to. 413, 486, 556. 611. 670, 689
superior to. 484. 556. 611
remainder must fall into, to entitle to indemnity. 390. 391
rights under, abrogated by initial registration. 76. 83. 85

acquisition of. after initial registration. 84. 85. 416. 670.
689

R.T.E. 48

754 INDEX. '

POSSESSION— continued.

rights under, nature of, 75, 76, 79, 80, 8-'!

not affected by initial registration, 76, 77, 413, 486, 611
tenant in, rights of, 83, 92, 93, 341, 342, 358
title by, acquisition of, after initial registration, 74, 85-89, 416, 670, 689

enactments forbidding, unworkable, 85, 86
title by, before and after initial registration, 74, 85, 92
effect of registered transaction on. 80, 88
mortgagee on same footing as owner as to, 85
procedure on claim to, 48, 56, 405, 416 et seq.
retention of, against initial registration, 74, 84
sufficient for initial registration, 35, 54, 58
under limitation statutes, 21, 34, 35. And see Limitation

statutes.
uniform enactment suggested, 86, 93
POSSESSORY TITLE,

application to be registered with, 50, 51

in British Columbia, see British Columbia " absolute fee.''
England, 7, 17, 19. 21. 50, 80, 200
Leeward Islands, 17, 19, 21, 50, 83, 200, 697
Nova Scotia, 14

Ontario, 14, 19, 21. 50. 83, 85, 200, 522
meaning of, 21

mortgage over land registered with, 194. 195. 200
no bar to title by possession, 80, 82, 85
not in Australasia, 11, 14
POWER OF APPOINTMENT (and see Power of disposition),
married woman, exercise by, 41. 212
mortgage by exercise of, 212
registered, where permitted, 212, 424

testamentary, land does not pass to appointee under. 681
POWER OF ATTORNEY,

attestation of, 225, 444, 698, 699

execution of instruments under, 50, 223-225, 443. 444. 500. 502. 516, 567
initial registration, application for, under, 50, 405. 479, 582
registration of. 224. 225. 444. 500. 567. 628. 629. 652. 653. 673. 678, 679
revocation of, 224, 225, 444, 500, 599, 628, 629, 653
seal, need not be under, 501. And see Sealing.
POWER OF DISPOSITION, entitles to initial registration. 28. 33, 39, 40,

404. 479, 520
POWER OF SALE (and see Mortgage; Mortgagee),
executor's doubtful, transferee not affected by, 313
executor registered as owner of a, 318, 375. 376
executor with, registered as owner, 381
improper exercise of, no indemnity for loss by, 393, 468
protection of purchaser after, 294
initial application, attorney making, must have, 50, 479
bow far necessary in, 32, 40

mortgagee may make, in exercise of. 37. 405. 479. 521
mortgagee's, proper exercise of, proof not required of, 431, 678
security by transfer and defeasance, in, 294
unregistered instrument, may be contained in, 288. 294
verbal, when sufficient. 294
PRIORITY— PRIORITIES,

caveat, how affected by entry of. 160. 169, 171, 172, 188-190, 284, 288,
692
independent of. when, 288
certificate of title, how affected by possession of, 288
creditors' assignee, between unregistered purchaser and, 312
date of registration not conclusive as* to, in misdescription, 133
depositee of certificate of title and beneficiary, between, 283, 284

other equitable interests, 284, 288
equitable interests, among, as in unregistered land, 164. 169, 171, 278
of. under registrable instrument. 222
personal rights and. between. 167
fraud in obtaining, what amounts to, 121
further advances, of. 264. 266. 267, 525

INDEX. ; 55

PRIORITY— con tin tied.

judgment and unregistered instrument, between. 115. 118

mortgage, of new, how preserved, 270

mortgages and incumbrances, between, time of registration governs, 204

negligence, may be lost by, 172

outstanding incumbrances, of. not affected, 65, 194, 197, 199, 200, 204,

483, 524
pending transactions, of, how secured, 177. 231, 2M2. 445, 44fi
production of certificate of title entitles to 170. 171. 411
recovery of land by virtue of, in registration. 413, 455, 484, 557, 637
registered judgments and unregistered assurances, between, 363
registered title, of. over unregistered rights. 113. 126
registration, accidentally gained by, 127

according to time of. 169, 170. 409. 410. 481. 526, 587, 604,
611, 678
search, lost by omission to, 119

sheriff, purchaser from, between unregistered purchaser and, 318, 360
tax purchaser, between unregistered purchaser and. 311, 360, 531
unregistered purchaser, when gained by, 126. 311. 318. 360
PROPRIETOR, meaning of. 23, 403. 409. 476. 481. 512
PROVISIONAL REGISTRATION.

before issue of Crown grant. 39. 42. 43, 413. And see Ckowx crant.
in New Zealand, 39, 477, 483
PUBLIC AUTHORITY, see Local Authority
PUBLIC USER,

rights of, not protected by caveat. 183

registered land subject to, 99. 105. 183. 413. 486, 523. 556,
586, 611, 646. 670, 676. 685
PURCHASE MONEY,

annuitant, by, disposal of. 431, 592

application of. purchaser need not see to, 441. 492, 592, 624
mortgagee, by. disposal of, 255, 431, 492. 592, 625, 650
payment of, whether before registration. 303. 306
vendor's' right to sue for, 301. 302
PURCHASER,

annuitant, from, protection of, 431

bankrupt, from, gets good title. 358

bona fide, meaning of. 120, 122, 123, 134

caveat is notice to, 294

conclusiveness of register in favour of, 97. 98. 122. 134

is for benefit of, 94
contract may be assigned by. 308. 309. 657
creditors' representative, from, gets good title. 357
estoppel as ground of title of, 146
for value and volunteer, distinction between, 106-109. 122, 130, 131, 134.

144. 149, 171
for value, rectification of register against. 134
forged instrument, registration under, 144, 145
fraud or mistake, not affected by vendor's, 122, 132, 134, 135, 139,

144, 145, 149. 455. 506. 507. 658
initial application by, 38, 39, 304. 520. 521

registration in lieu of conveyance, 39, 667
lis pendens, when not affected by, 102
misdescription, when not affected by. 134, 135. 140
mortgagee, from, initial registration of. 405. And see Mortgagee.

protection of. 250. 251. 255. 431. 492, 592, 624, 625
takes registered ownership. 250. 252. 254. 317. 325.
431. 432. 492. 592. 625
includes. 551
mortgagor cannot redeem against, 171, 254

notice to, of vendor's inability to complete sale. 122. 254. 294. 412. 661.
669. 670
registration operates as. 119
notice, whether amenable to. up to time of registration. 125-127. 254

without, protected. 291. 358. 360
purchase money from vendor, recovery back of, by, 309

756 INDEX.

PURCHASER— continued.

registration of. essential to immunity from adverse claims, 126, 127
on application of mortgagee, 37, 521
vests vendor's title, 306
with consent of vendor, 38, 39, 520

remedies of, if land not registered. 303, 304

sheriff, from, title acquired by, 358, 360-362, 440, 441, 530

specific performance, right to, 301, 304, 305

tax sale, at, see Tax sale.

trustee, from, gets good title, 33, 128, 129, 157

unregistered, how far the equitable owner, 115

not protected by vendor's registration, 126

unregistrable title forced on, 35, 36

vendor's lessee how affected by rights of, 91

voidable transaction confirmed in favour of. 391

voluntary transaction invalid against, 106, 109. 110

volunteer, from, gets good title, 110

writ of execution, not affected by notice of. 122, 441

QUALIFIED TITLE,

good leasehold title included in, 51

initial registration with, 51, 522, 665, 666, 697, 698
QUEENSLAND,

adverse occupation, initial application notwithstanding, 49

buildings, rightful owner pays value of, on recovering land, 135, 151

death of registered owner, general statute relating to succession on. 374

equitable interests and fraud, jurisdiction of courts preserved as to.
108. 117, 139

freehold land still passes to devisee, 372, 376

friendly societies, notice of invalid appointment, 122

indemnity for wrongful registration, 148

initial application, consent to withdrawal of, 61

lease containing purchase or renewal rights, whether registration
essential to, 91, 333

lease, suspension of covenant to pay rent, 336

leases, short, do not require registration, 90, 91

leasehold registration only after initial registration. 25

legal owner, concurrence of. sufficient without conveyance, 34

limitation statutes, application of, 88.

married women, 41

mistake, registration by, remedy of rightful owner on, 135

" nomination of trustees," 157

notice of trusts, purchaser or mortgagee not affected by, 122

notice, enactment making register conclusive notwithstanding, 123, 125

outstanding mortgages, no provision for. 65

possession, registration equivalent to, 74

power of attorney, non-revocation of, 225

registration statutes, 8

adapted in Papua. 10

remainderman, registration of. 67

re-sealing of letters of administration, effect of, 372

sealing necessary for statutory transfer-charge, 198. 221, 315

tenancies not affected by initial registration, 84

tenant for life, initial application by, 31, 67

lease by. no suspension of rent in, 336

text-books relating to system in, 12

title deeds at registry open to public inspection. 69

transfer and charge, statutory form of. 314, 315

transfer, voluntary, on same footing as for value. 107. 128

trustees of public lands, 158

unregistered dispositions, jurisdiction of courts' preserved as to. 117

unregistered instrument, right to registration conferred by, 117
mortgage, transmission of, 232

vendor's lien abrogated. 103
QUIETING TITLE ACTS {and see Declaration of title).

registration statutes' and. relation of, 1. 4. 55, 62, 572

INDEX. 757

RATES AND TAXES,

lease on default of payment of, 334

registered land subject to burden of, 99, 105. 413, 523, 555, 611. 670.

676, 689, 690
sale on default of payment of, 101, 318, 330. And see Tax sale.

title gained undor. 360
REAL PROPERTY ACT, meaning of, 19. 21
RECOVERY OF LAND,

action for. by registered owner, 78

defence of bona fide purchase in, 149
meaning of, 96

none against registered owner. 96, 454, 484. 556, 586. 637.
657, 683
RECTIFICATION, see Register.
REDEMPTION,

equity of, whether debtor's right to re-transfer is an. 292. 293

foreclosure bars mortgagor's right of, 435, 553. And see Foreclosure.

meaning of, 270

proceedings to compel, 274

purchaser unregistered, none against, 171, 254, 275

right of, unregistered agreement, 192. 264, 292. 293

is a legal right, 274
transferee of mortgage, right of owner of land against. 263
REGISTER,

absolute fees, of, see British Columbia.

affirmative and negative functions of, 96, 97

alteration in, rectification by means of, 110, 368.

book, bound grants and certificates constitute, 409. 552. 580. 604

form of memorial entered in, 410
change of ownership on, method of effecting, 311, 312
charges, of, see British Columbia.

conclusivenes's of, as to entries upon it. 200, 201. 412
cut down by notice, 120

for particular purposes, 97, 98, 412, 661. 670
limits of, 94, 98, 100, 101, 368. 413, 484, 523. 535.

556, 585, 610, 638, 666, 670, 676, 704. 705
meaning of, 94-97

mortgagee entitled to rely on, against owner, 201. 202
rectification barred by, 368.
construction of, as other documents, 133, 134
contract for sale, not embodied in. 303
correct, powers of registrar and courts to, 135, 136, 364, 367, 368.

And see " rectification of," infra
courts, jurisdiction of, to control, 89, 135, 136, 365. 366, 368-370
Crown, how far conclusive against. 103-105, 555
different kinds of, 1

entries on, "uncancelled," 98, 555, 586, 638
fictitious name on, effect of, 98.
indefeasible fees, of, see British Columbia.
instruments entered on, power of court to rectify, 136
landmarks, coustruction may depend on ascertaining old. 134
meaning of, 22. 480, 512, 580, 604

mistakes in, whether express jurisdiction to correct, necessary, 136
notice, how far, 119, 120, 309
official certificate as to state of, 305, 445, 446

production of, an answer to all adverse claims, 94, 96. 455, 557. 637
provisional. 39, 42, 43, 413, 427, 483. And see Crown grant.
publicity of, 70, 462, 482

rectification of, acquisition of new title gives right to, 89
against purchaser for value, 134. 136. 370
volunteer, 110
wrongdoer, 136
alternative methods of, 110, 136, 368. 370
and alteration, distinction between. 364, 367
fraud a ground for, 541. 543
indemnity in lieu of, 137, 138. 368, 369, 543
in favour of person in possession. 543

758 INDEX.

rectification of, in favour of rightful owner, 108, 109

title by possession, 76-81, 86, 87. 89. 93,
416, 417
mistake a ground for, 130, 131, 543
powers of registry and courts, 135, 136, 159, 367-370.
447-449, 452, 455, 486, 541, 542, 577, 578. 584,
613, 614
registered instruments, extends to, 368
right to, how lost, 86, 368. 369
re-entry of lessor recorded on. 346

registered instruments made part of, 233-235, 323, 327, 368, 481
removal of land from, 72, 73, 544, 545, 583

mortgagee's powers as to, 73, 199
stock, principle of, applied, 146

subsidiary, 27, 38, 234, 235, 343, 349, 429, 465, 472, 514. 604
title is actually conferred by and rests on, 96, 278
title, is conclusive evidence of, 24, 74. 78, 81, 94-98
trusts, notice of, not entered on, 155-157, 410, 560, 589, 611, 682
REGISTERED INSTRUMENT,

executed and attested, must be properly, 221
genuine, must be. 143-146

invalid, effect of registration subsequent to. 144-146
REGISTERED LAND,

Bain V. Fothergill applies to, 308
meaning of, 22, 302, 306

representation that land sold is, effect of, 303. 304
REGISTERED OWNER,

actions for damages' against, only four reported, 151

death of, cesser of title on, 382

liability of, to rightful owner after parting with land, 149-151

meaning of, 22. 552, 579

recovery of indemnity from, by registrar, 151. And see Indemnity.

no time limit fixed for, 152
representative character, in, no registration of execution against, 361.
382
REGISTERED OWNERSHIP,

creditors' representative entitled to have, 353, 344. 356
death causes no break in continuity of, 374, 375

execution of instrument before acquiring, 220. 221, 231, 311, 485. 532
lease an incumbrance on, 343. 691.
merger of legal estate in, 168

mortgagee's transfer vests, in purchaser. 317. 325. And see Purchaser.
purchaser's right to, 305
REGISTRABLE INSTRUMENT,

equitable interests, position in scale of, 165

prescribed form usually necessary for, 165. 482. 507. 508. 550, 676
REGISTRAR.

caveat may be entered by, 29, 452, 504, 564, 584, 630

discretion of, in accepting instruments for registration, 210, 211, 272,

587, 609, 646
indemnity paid for loss of land, recovery of. 147, 148. 151, 686. And

see Crown.
proceedings against, by applicants, 456
vesting orders, power to make, 366, 417. 450
REGISTRATION,

bona fide transferee, instrument not operative against, before, 587
caution, may be made subject to, 535
caveat as a means of staying, 126, 282
conclusive effect of, 455. And see Register.
contract, of, 301, 302, 581

creditors' representative, of, 353. And see Transmission.
Crown lease, of, see Lease.
damages recoverable for delay in, 232, 233
death, on, no complete title vests until, 373, 374

deed and title, combination of. 1. 3, 7. 14, 16, 18. 43. 71, 113. 115, 330.
331, 576

INDEX. -J 59

REGISTRATION — continued.

deed and title, distinction between. 1-4, 113
deed, priority of registered judgment under system of. 363
purchaser without notice under system of. 358
registered land not affected by, 70-72
deposit, rights under, lost by adverse, 284
deposit of certificate of title as a means of staying. 282. 283
discharge of mortgage, cancellation of. before. 273
double or conflicting, 132-134. 455
entry on register and. distinction between. 224, 225, 331, 359. And see

Caveat.
equitable interest passes notwithstanding want of, 286. And see

Equitable interest.
essential to validity of transactions, 2-4, 72, 12H. 127. 306. 314
evidence of, registrar's certificate is, 481, 706

execution of instrument, when special method of, required, see Execu-
tion.
extinguishment of hostile title by, 96

foreclosure, of mortgagee on, 435. 547. 553, 678. And sec Foreclosure.
informal instruments', of, 286

initial and subsequent, distinction between. 1)7. 143. :V22
judgment or execution, of. effect of. 360. 361, 440. 441. 517. 529. 530.

575, 585, 588, 633, 654. 655, 679, 695, 696
lease, of, consent of mortgagee to. 266. And see Lease.

refused to informal, 286
leases, competing, whether affected by. 91

how affected by, 83, 84, 90. And see Lease; Tenancy; Initial
registration.
legal estate in general law. equivalent to. 145. 153, 165
meaning and objects of, 1, 11, 74, 96, 100. 601
method of, 233
mortgage, of. rights of mortgagee before, 220. 221

refused to informal. 286
mortgagee protected by, 277

no vesting of estate until, 44, 45, 113-118, 254, 570. 610
notice of defects in title prior to, 254, 294
place of, determines situs of mortgage debt, 236
possession and, conflict between. 52. 74-93. And see Possession.

equivalent to, when, 74
possession, replaces, as badge of ownership, 74.

power of attorney, of, 224, 225. 444. And see Power of attornfy.
priority gained by, only lost by fraud, 127

•by, provision for, 169, 170. 204, 455. And see Priority.
in date of, not conclusive in misdescription, 133
procedure for compelling, 456

provisional, 39, 42. 43, 413, 477, 483. And see Crown urant.
purchaser from mortgagee, essential for, 254
purchaser, vests vendor's title in, 306

relation back of, 45, 63, 70, 115, 204. 221, 375. 378, 379. And see Re-
lation BACK,
representative of deceased owner, as, 373
right to, an equitable interest, 154

conferred by unregistered instrument. 114, 115. 314. 570. 589
devisee has no, 374
of donee let into possession. 374
successor on death of owner, 374
right to set aside, is an equitable interest, 166
stamp, not invalid for want of proper, 482
statutory instrument made completely operative by, 236, 5S7. 610

instruments, of, effect of. 233-236. And see Transfer:
Lease ; Mortgage.
" subject to estates and right acquired by." meaning of, 131, 138

rectification of register is. 137
sub-lease, of. method of. 348. 349, 429. 466
successor, of, on death of owner, 371 et seq.. 382. 3S3
time of. presentation of instrument is. 204. 232, 529. 604

provisions for fixing, 45, 70, 169, 170, 232. 480, 585. 608
when important, 52. 133. 169, 170. 232

760 INDEX.

REG I STBATION — con tinu cd.

transactions, of, provided for, 70-72

transfer by way of security, of, cannot be refused, 289

transfer of mortgage, essential to, 261, 317

of, not always notice, 262, 263
transfer, of, see Transfer.

title under, not complete without, 261, 311, 314, 317, 318,
424, 489, 494, 525
transmission, on, see Transmission.

vesting order, of, essential to operation, 365, 366. 450, 489
voluntary transaction revocable until, 118
warranty of title, without full, result of, 285, 286

wrongful, registered owner liable for, 147-151. And see Indemnity
REGISTRATION ABSTRACT. 498, 516
meaning of, 19, 20
not in Canada, 20
REGISTRATION STATUTES,

case law and, relation of, 117, 118, 252-254

Companies Acts and, relation of, 227. 228

construction of. 11, 99, 100, 121, 128

Crown, how far binding on, 103-105

fraud and notice distinguished in, 121 , 123-125. 127. And see Fraud ;

Notice.
fraud, not to be used for perpetration of. 137

general law and. relation of. 209. And see General rules of law.
Married Women's Property Act and, relation of. 41, 229
meaning of, 23

method of. for making register conclusive, 94-96
nomenclature of, 21

" notice is fraud,*' how far relied on in construing, 121
possession, exception as to, not in early. 74

not uniform as to, 74
succession on death, provisions' as to, 373, 513, 631, 681
territorial operation, have only a. 235. 236
REGISTRY (and see Registrar),

completion of sale and purchase at, 306
different kinds of, 1

documents at, not necessarily public, 70

executed part retained at, is the effective instrument, 230, 231, 236
loss through omission of, statutes not uniform as to, 386, 389
meaning of, 23

mistake at, double registration occurring through, 132
officers of, not liable to official acts, 147, 384, 454, 573. 603
register, powers of correcting against purchaser. 136
register kept at, owner's title rests on. 278
registration at, under general statutes, 72
RELATION BACK,

of bankruptcy trustee's title to date of adjudication, 688
certificate of title in lieu of Crown grant, 478
to date of disposition, 485
enrolment of Crown grant, 404
initial registration, 63, 70, 565
mortgagee's right of entry, 221
registration to date of application. 565

presentation of instrument. 604
successor's title to death of owner. 375. 378. 379. 440. 517. 562. 594.
632, 654. 688
REMAINDER (ESTATE IN),
equitable interest, an, 166, 310

incumbrance on registered ownership, 166, 331. 561
legal, created by instrument of transfer, 315. 424, 488
loss of, entitles to indemnity. 390. 395
transfer of, method of registering, 320, 321
transmission, on, registration of. 459, 488
REMAINDERMAN,

fixtures, right to, as between tenant for life and, 396
initial registration of, 31, 67

INDEX. 701

REMAINDERMAN— continued.

initial registration, concurrence in, 404, 479

possession, must be registered afresh on estate falling into. 321
right to indemnity on estate falling into. 395

tenant for life and, separate certificates of title for, 67, 320, 321
RENT-CHARGE,

registrable separately, 28

secured by charge, 20, 21, 295-299. And see Annuity.

security for money, is a, 297

statutory annuity is a, 297
RESTRICTIVE CONDITIONS,

plan will not create, 319

protection of, by entry on register, 176. 539
RESTRICTIVE ENTRY (ENTRIES) (and see Caveati.

caveat takes the place of, 177. 187

different kinds of, 172-177

equitable interests protected by, 172

legal interests protected by, 172

registration of successor to deceased owner, on. 375. 560

unregistered transactions protected by. 193
RIGHT OF ACTION,

caution, improper entry of. gives, 175

equitable interest and, distinction between, 114. 118. 178

for loss of land, see Indemnity.
•• RIGHTFULLY ENTITLED," in adverse occupation and, meaning of.

82 83
ROAD— ROADS,

Crown, release of rights of. in, 560. 561, 645

dedication of, by order of municipality, 408

deposit of plan when sufficient dedication of. 319. 326, 569
not a dedication of, 503

private, extinguishment of rights of way over, 421, 460, 461

registration does not affect public rights in, 486. 556. 586. 611

reservation of, in Crown grants, 478

rights of registration with respect to, 533

transfer of. to Crown, 488

width of, minimum, registered plan to shew, 540
ROMAN LAW, usucapio of. illustration from, 96
ROMAN-DUTCH LAW,

foundation of local jurisprudence in Ceylon. 16

mortgage in registration of title approximates to. 191

SALE.

agreement for re-purchase, and. 292

charge enforced by, 358

completion of, procedure on. 303, 304. 3<(6. 307

conditional mortgage by, 292

conditions of, effect of using local, 54

statutory, 307, 461, 462. 464
contract for, see Contract fob bale.
court, by. 302, 325. And see Execution : Mortgage.
equitable mortgagee entitled to. 288. 519

execution, under, by sheriff, 317. 325. 330. 358. 359. And see Execu-
tion : Registration
confirmation of, 634, 635
initial registration compulsory on, 44
mortgagee, by. efficacy of. 250, 251

notice before registration. 221
mortgagee's initial application in pursuance of. 37, 521
mortgagor, when relief given to, before. 274. 275
rates, for arrears' of, 318
right to re-transfer, of. 292
taxes, for arrears of, 330. And see Tax sale.
trustees for. initial application bv. 404. And see Trustee.
SASKATCHEWAN,

adverse possession, title acquired by, 35

title by. not acquired after initial registration. 76.
82, 611

?62 INDEX.

SASKATCHEW AN— continued.

alimony, judgment for, has effect of annuity, 622, 623
caveat, only one kind of, 57, 62

entry prior to initial registration, 171, 630
void transaction not protected by, 237, 629, 630
certificate of title, meaning of, 601
chattels, securities for purchase money of, avoided, 117. 167, 282. 629,

630
contracts, jurisdiction of Courts preserved over. 108, 117, 641
corporation, incapacity of, no claim to indemnity for, 638
creditors' assignee, registration of, 159, 632
death of owner, certificate of title to be delivered up on, 632
deed, registered instrument has not effect of, 234-236
deeds registry, none in, 71
dower partially revived in, 169, 229
duplicate certificate, meaning of, 601
entireties, husband and wife do not take by, 640
estates tail abrogated, 324, 640
execution made a charge on land, 362, 363, 633
foreclosure, alternative methods of, 258, 623, 625
fraud, jurisdiction of courts preserved as to, 117. 641
grant from Crown, title otherwise than by, 36
homestead, protection of, 169
indemnity, action for, not required where misdescription, 150

improper use of corporation's seal gives no right to, 226,
393, 638
infants, interests of, specially protected, 378, 632
initial registration, interest in land entitles to, 33, 36, 38, 605, 607
instrument, meaning of, 600, 601
land in and outside, instrument dealing with, 609
leases, short occupation, unaffected by registered title, 82, 611
leasehold registration, implied authority for, 25, 605
lessor's certificate of title retained in registry, 343, 619
master of titles, reference to, 636

misdescription of parcels, register not conclusive on, 149, 150, 637
mistake, omission of easement not included in, 135i
mortgage, acceleration clause in, 252, 254, 274, 275, 626
landlord and tenant relation under, 247, 626
on, certificate of title deposited at registry, 264, 265, 622
mortgagee, application for initial registration by, 37, 38
court proceedings by, 623
insurance of crops by, 267, 623
leasing powers of, 215, 249, 624
mortgagor may become tenant of, 626
proceedings by, costs of, 642

sale by, alternative methods of, 251, 252, 623, 624
nominee, implied authority for registration of, 37
North-West Territories, formerly included in, 71
notice of initial application when to be published, 56, 606
parcels, register not conclusive as to, 135, 140, 637
peculiar features of system in, 14
possession, acquisition of title by, forbidden, 85, 611

meaning of, 601
purchaser, no enactment specially protecting, 140
re-entry under lease, keeping disorderly house gives right of, 620
registrar defendant in action for indemnity, 149, 637
registration, meaning of, 61
registration districts, 601, 602

statutes, 13, 600
sub-mortgage expressly provided for, 203, 263, 627
tenant for life, initial registration of, 31
tenant's agreement to purchase fee simple, effect of, 83, 619
tenants in common, two transferees take as, 324, 640
title deeds at registry open to public inspection, 68
unregistered instrument, interest passing by, 116, 117
wrongful registration, fraud or wrongful act essential in action for, 149

INDEX. 763

SCOTLAND,

law of, influence on various statutes, 10. 14, 17

positive prescription in, Jamaica limitation statute and, 96

registration in, is- deed registration. 2-4

search sheet system in, 3
SEALING,

registration may have efficacy superior to, 236

statutorv instruments, when essential to, 7, 193. 198, 208, 221. 222.

233 271 310 315
when not es-sential to. 7. 11, 14,' 198,' 221, 222.
225. 235, 271. 275, 310, 315. 329. 335. 444.
501. 502, 526. 540. 561
SEARCH,

application for official, 445

official, whether indemnity for loss though incorrect. 387-389

omission to. when not negligence, 119, 120

purchaser omitting to, is fixed with notice. 119

right of. implies publicity of register, 70
SECURITIES FOR MONEY,

defeasance agreement, transfer and, 289-295

different kinds of, 193, 198. 289, 295

registered owners of, statutory powers conferred on, 204. 295

statutorv non-mortgage. 295-299
SETTLED LAND,

entry of trust of, on registry. 156

limited owner of, initial registration of, 30. 33. 40

trustees registered as owners' of, 31. 156
SETTLEMENT (and see (Trust),

caveat, beneficial interests protected by. 496, 497

meaning of, 404

non-mortgage charge effects some purposes of, 298.

transmission under, application to be registered on. 458. 459. 496
SOLICITOR (and see Legal practitioner).

negligence of, in delaying registration. 232, 233
SOUTH AFRICA, registration in, is deed registration. 2, 4
SOUTH AUSTRALIA,

adverse occupation, initial application notwithstanding. 49

possession, title by, overrides initial registration. 50, 76, 82

buildings, value of. when excluded from damages recoverable, 149

caveat, registrar not liable for entering, 60
renewal of, when permitted, 59
special procedure under, 58, 61, 62

cestui que trust, rights of. preserved. 156. 157

charge, covenants for payment implied in. 297

contract for sale, preservation of rights' under. 117

covenant not to assign lease, relief against breach of. 348

death of executant, validity of registration after. 118

deed poll, effect of transfer given to, 318

donee of power, initial application by, 40

equitable interests, jurisdiction of courts preserved as to. 108

forgery expressly provided for, 143. 144

fraud, jurisdiction of courts preserved as to. 117, 139
special enactment as to. 139. 140

initial application, withdrawal of, 61

invalid execution of instruments, effect of. 143, 144

joint account mortgages, discharge of, 272, 273

land " sought to be brought under " system, meaning of. 58

lease containing right of purchase or renewal, registration or caveat
necessary for, 91

lease from Crown only registrable as leasehold land, 24

leases, short occupation, cases on, 91, 92

unaffected by registered title, 82, 90. 91

lis pendens not registrable, 102

mortgagee has express power to lease. 215, 249

notice of wrongful registration, no indemnity for buildings erected
after. 396

764 INDEX.

SOUTH AUSTRALIA— continued.

outstanding incumbrances, rent-charges included in, o4

mortgage, no provision for, 65
possession, acquisition of title by, forbidden, 85
registration abstract not provided for, 20
statutes, 9

remainderman, registration of, 67

removal of land from register forbidden, 72

sub-lease protected on surrender of head-lease, 348-350

tenant's agreement to purchase fee simple, effect of, 83

time limit in action for wrongful registration, 150

Torrens system originated in, 10

unregistered dispositions, jurisdiction of Courts preserved as to, 117
instrument, right to registration conferred by, 117
SPECIFIC PERFORMANCE,

claim to, distinguished from right of property, 164, 166

doctrine of, in relation to equitable estate, 154

initial registration, by means of, 304

lessee in occupation and entitled to, 341

with option of purchase, rights of, 337

mortgage of lease no defence to action for, by lessor, 337

purchaser's right to, 301, 304, 305, 307, 683

reference as to title on, 307

vendor's right to, 301, 412, 661, 669, 670
STAMP DUTY,

registration not invalid for error in, 482
of nominee, on, 37, 39

Victoria, adhesive stamps in, 451
STATE, in Fed. Malay States, see Crown.
STATE WARRANTY OF TITLE, see Warranty of title.
STATUTORY INSTRUMENT (INSTRUMENTS),

implied covenants and powers in, may be modified, 209-211, 439, 501,
612, 672

land not on register cannot be included in, 211

non-statutory instrument in lieu of, when permitted, 206, 210, 587

prescribed form of, may be varied, 209-211, 462, 587
STRAITS SETTLEMENTS, local deed registration system in, 5
SUB-LEASE— SUB-LEASES,

assignment or, 340, 341

covenants implied in, 429, 466

determination of lease, how affected by, 348-350, 429

indefinite period, for, by monthly tenant, 90

leases, provisions relating to, apply to, 348, 429

mortgagee of lease, consent of, 428, 429

registration of, method of, 348, 349, 429, 466
SUB-MORTGAGE,

authorized expressly or impliedly, 203, 251, 261, 263, 475, 494, 547,
590, 627

consent of, to sale by mortgagee, 251, 494

discharge of, 272

methods of creating, 192, 263, 264, 547
SUDAN,

initial application by person out of possession, 50

peculiar features of system in. 17, 18

registration statutes, 17

unregistered instruments inadmissible in evidence, 113
TASMANIA,

absentee owner, application by attorney of, 50

adverse occupation, initial application notwithstanding, 49

possession, title by, overrides initial registration, 76, S2

company, liquidator of, entitled to be registered, 357

death of registered owner, general statute relating to succession on, 374

defective title accepted with increased fee, 54, 385

estates tail abrogated, 316

barred by instrument of transfer, 316

INDEX. 765

TASMANIA— continued.

executor with right of disposition, registration of, 318, 375. 376

freehold land still passes to devisee, 372, 376

initial application, withdrawal of, 61

lease, short unregistered, legal interest assured by, 92

leases, separate register for, 25, 343

leasehold registration only after initial registration, 25

limitation statutes, application of. 88-90

method of operation of, 88. 89

registrar may be nominated a trustee. 157

registration statutes, 9

remainderman, registration of. 67

tenant, interest of, unaffected by registered title, 82, 92. 9-*!

tenant's agreement to purchase fee simple, effect of, 83, 93

title by possession, procedure on claim to, 48, 56

vesting orders by registrar, 366
TAX SALE (SALES) (and see Rates and Taxes).

conditions of sale on, in B. Columbia. 54

prior registration, set aside in favour of. 133

registration of purchaser at. 531. 559, 583. 635, 655

rights of purchasers at, register not conclusive against. 611

title of purchaser under. 330. 531. 559. 583, 635, 636
TENANCY— TENANCIES.

by estoppel. 216

creation of, without registration, 84. 85, 90, 489

mortgage, created by, nature of, 216

registered title subject to, 76-79. 83, 84, 90-93. And see Lease.

transfer of lessor, may be abrogated by. 84. 92
TENANT,

action against, none by successor until registered, 374

fee simple, effect of agreement to purchase, by. 80. 83. 90. 93

mortgagee, rights of, against. 432
TENANT FOR LIFE (And see Life estate).

initial registration of, 30. 31. 33. 40, 67. 405

method of registering, 320. 321

remainderman and. separate certificates of title for. 67, 320. 321
TENANT (TENANTS) IN COMMON.

conveyance to several operating as conveyance to. 561. 640

death of. registration of successor on. 529

indemnitv for loss of land, co-owners share, as. 397

registration of. 67. 68, 411, 485. 521. 555. 669
TENANT IN TAIL (And see Estate tail).

assurances by. 441

initial application by. 31. 34
TERM OF YEARS (And see lease).

securitv bv. effected bv statutory charge. 295
TERRITORY FOR THE SEAT OP GOVERNMENT (Australia i. New

South Wales statutes in force in. 5. 8
TITLE.

absolute, see Absolute title

acquisition of new, gives right to rectification of register. 89

agreements with respect to, verbal, held good. 60

bad, on initial application, instances of. 55

by possession, see Possession.

caveator, of, established against applicant. 62

no fresh investigation necessary for. 61

certificate of. see Certificate of title.

defective, accepted on payment of increased fee 54. 385. 408. 418. 423.
439. 454

evidence of, register is. 24. 302. And see Register.
what accepted. 54. 408

fully warranted, see Fully warrantkd title.

good, on initial application, instances of. 54. 55

independent, overriding registered title. 78. 93

initial registration, on. and subsequent transactions, distinction be-
tween. 313

investigation of. how conducted. 53

766 INDEX.

TITLE — continued.

investigation of, implied by warranty, 51, 53, 96

points of law or fact arising in, 55
" marketable," when required for register, 54
mistake as to, involved in double registration, 132, 133
paramount to registered, 73, 93
" particulars of ", meaning of, 305
possession coupled with good, when superior to registration, 77, 78. 81,

82
possessory, see Possessory title.
qualified, see Qualified title.
reference as to, not often required, 307
register as conclusive evidence of, 74, 75, 94-96, 313. And see Register ;

Registration.
registered, agreement to give, 304, 306, 307

" conclusive " or " indefeasible," 94-96
free from other interests, 95

overrides rights under possession, see Possession.
owner in possession ousted by, 75, 78
subject to all rights under occupation, 76-78, 92, 93
equitable interests notified, 97
tenancy, 76, 77, 90, 92. And see Lease.
" safe-holding," usually sufficient, 53, 54, 62, 552, 583
standard of, required for register, 53, 54
successor in, continuous occupation by, 82
vendor must shew, 305

unwarranted, register not conclusive as to, 98
want of, and misdescription, distinction between, 130, 133. 134
" warranted " "indefeasible " or "conclusive," right to rectification not
ousted by, 136
TITLE DEED (DEEDS),

certificate of title how far equivalent to, 278-281, 700
deposit of, by beneficial owner, effect of, 279, 283
fraudulent use of cancelled, 69
initial application on, production of. 406, 567. 605

to be delivered up, 49, 479, 665. 669
registration on, cancellation and custody of. 63, 68. 69. 406.
407, 480, 668. 669, 684
plan not a, 319

statute-barred mortgagee in possession of, 38, 59
TITLE REGISTRATION {and see Registration),
contracts, validity of, not affected by, 111
deeds registry, relation to, 70-72. And see Deeds registry.
definition of, 2

extent and limits of changes effected by, 100

fraud, law relating to. how affected by, 142. And see Fraud: notice.
objects of, 100

resulting trusts, doctrine of, applies to. 108, 110
systems of, in the Empire, 2, 5, 6, 18
voluntary conveyances, invalidity of, under. 110
" TORRENS."

Australasian statutes, 10, 14
Canadian statutes, 14, 60
TRANSFER,

assignee for creditors, to, 351, 352, 547, 548

completion of, by registration. 113, 424. 489, 528, 571, 587, 528, 670

683
contract, effect of, given to prohibited, 112, 116
contract of sale and. inconsistency in. 129
convict, from, title of purchaser on, 146
deed poll operating as, 318

easements may be created by, 315, 487, 586, 614, 646
execution and attestation of, 309. And see Execution.
foreclosure of mortgage by, 257, 258. And see Foreclosure.
forged, effect of registration on faith of, 284. And see Forgery.
gazette notification operating as, 318
gift without formal, effect of. 93, 328, 329

/A D EX. 767

TRANSFER— continued.

instrument of, operation of. 314

position in scale of equitable interests, 166
lease may be abrogated by, 84, 92
lessee, by. eoucLusive effect of, 146
life estates created by, 316
meaning of, 512, 600, 644, 701
mortgagee, from, production of certificate of title on, 318, 415, 41o

to purchaser. 250, 254. 255, 310, 325, 431, 492, 526.

571. 592. 624
registration of, 494, 592. 678
mortgages, of. see Mortgage.
new trustees, vesting land in. 366, 367
non-mortgage Charge, of, 298, 325. And see Mortgage.
official certificate of sale treated as. 325
parcels, description of, by plan. 319. And see Pla>\
powers of appointment created by, 315, 316, 424, 488
prohibited, includes mortgage, 208, 648
purchaser before registration of, priority of, 126

not entitled to, until purchase money paid, 307
rates, on sale for overdue, 318. 679
rectification of register by means of. from registered owner, 110. 366-368

effects a. of fee simple, 89
registration of, effect of, 321-323, 327. 424. 487, 515, 527. 528. 571.

587. 592, 646, 670. 706
enforceable, 647

method of, 311, 319, 326-328. 330. 425, 487. 515. 569.
608, 614, 647. 670
remainder created by, 315, 424, 488
resumption by Crown treated as, 680
security by. with defeasance. 289 et seq.

sheriff, bv. on sale under execution. 317. 318, 325, 330, 359. 361, 440.
441, 468. 529, 530, 634. 679
production of certificate of title on, 318, 415. 41t>
surviving joint owner, by, under order of Court, 411, 412, 497. 498. 539.

562 640
transferor, to. statutes authorize. 315. 316. 324. 330, 424, 488. 571. 586.

587
unregistered, equitable mortgage by deposit of, 283, 286, 287
value, for. right to rectification when barred by. 80, 81, 88
vendor, from, must be registrable. 307
vesting order in lieu of, 366, 367. 450
warrant of forfeiture treated as, 679
TRANSFEREE.

caution against registration of. 535

executor on registration .becomes a. 440

insolvency, on. assignee becomes a, 461

lessee, from, may get good title, 146

mortgage, of, and mortgagor, accounts between. 262. 263, 528

how far title warranted. 195. 261, 528
mortgaged land. of. liability of. 241-243. And see Covenant.
mortgagee after foreclosure is in position of, 257, 258. 435. 438. 439
mortgagee, from, is a transferee of the land. 432

registered owner, from, indefeasible title of, 94. 146, 313. 321. 322. 327

329. 357. 358, 368^ 3S6, 391
personal representative in position of. for value. 377
registration of. alternative methods of. 88, 311. 312. 319-321. 326-328
rights of former owner vested in. 321. 322, 328. 460. 571
TRANSFEROR.

title of. purchaser not bound to search. 119
TRANSMISSION.

application to be registered under, in N. Zealand. 496

caveat, beneficial interests protected by. 496. 498

creditors' representative, to, 353, 461. 594, 630. 672, 680. 688. 689

dealing with property without formal. 381. 526, 632, 681

devisee on. application of. to be registered. 458. 451). 687. 688

devisee or heir, to, 687. 688, 706

768 INDEX.

TR ANSM I S S ION— continued.

initial registration, resemblance to, 353, 375-377

meaning of, 353, 366. 371. 375. 404, 476, 512, 551, 579, 601, 644, 701

probate, &c, registration on production of. 337. 338. 440, 451, 472, 473.

516, 517, 631. 632, 653, 654
registration of, on deatb. 374 et seq., 594, 687-689
remainderman, application of. to be registered. 459
successor on deatlh, to, 371 et seq.
TRINIDAD-TOBAGO.

Administration of Property Ordinance, 681

adverse occupation precludes initial registration, 49, 50, 675. 676

attestation of instruments, 222, 682, 683

buildings, rightful owner pays value of, on recovering land, 135, 151

Casual Revenue Ordinance, 680

death duties, 682

deed registry, initial registration recorded at, 69, 676

trust instruments registrable at, 72, 159, 163, 682
default of mortgagor, proof not required of, 255, 678
deposit of certificate confers right of action only, 178
devise, consent of personal representatives to, 682
dower registrable as incumbrance, 678
fraud, no general enactment as to, 136, 137, 139
grant from Crown, title otherwise than by, 36
implied covenants, no provision for varying, 209
incumbrancee, registration statutes do not mention, 675
incumbrancer, meaning of, 675

initial application, adverse occupation as bar to. 49, 50, 675, 676
applicant liable to caveator on withdrawing, 61
plan required with, 47, 675
judgment and unregistered instrument, competition between, 118

protected by caveat, 679
land " described is advertisement." &c. meaning of. 58
Land Charges and Land Taxes Ordinance. 676. 679, 680
lease containing purchase or renewal rights, whether registration

essential to, 91, 333, 677
leases how affected by initial registration, 84
leasehold registration, no separate register for, 25. (55 -07
leasehold, transfer of, 676, 677

legal practitioner, statutory instruments' must be prepared by, 222. 229.

683
scale of fees of, 683
limitation statutes, application of, 88
lis pendens protected by caveat, 102
lunatic, committee of, registered as owner. 680
married woman on footing of feme sole, 228, 677
mistake, registration by, remedy of rightful owner on. 135
mortgagee, exercise of power of sale by. proof not required of. 255, 078
remedies of. as over unregistered land, 215. 217. 219. 220.

677. 678
rights of, as under general law. 267
peculiar features of system in, 17. 675
plans, rules relating to, 683
possession, initial applicant must be in. 49. 76. 84. 675. 676

rights under, how affected by initial registration. 84. 675
power of appointment, land does not vest by will under, 681
Public Authorities (Rates and Charges Recovery ' Ordinance. 679
registrable instrument, legal practitioner's signature essential to, 222,

229, 683
registration statutes, 15, 675
Remedies of Creditors' Ordinance. 679
title by possession, procedure on claim to, 48, 56
transfer, voluntary, on same footing as for value, 107
witnesses, list of official. 682
TRUST— TRUSTS (And see Declaration of trust).

breach of, no indemnity for loss by, 157, 391-393, 453. 638
caveat, beneficial interest protected by, 498
protection by settlor's. 162. 499

INDEX. 769

TRUST — continued.

death of trustee, on, laud continues subject to, 513

fraud, knowledge of trust is not, 123, 441, 639. And see Fraud.

instrument declaring, construction of, 164

how recorded, 159, 163, 410, 497, 560, 682, 6S7
position in registration system of, 163, 164

mortgage, deed of settlement may be referred to in, 213

mortgage debt, of, enforcement of, 424, 489, 628

" no survivorship " entry indicates existence of, 159, 160 .

notice of, not to be entered on register, 155-161, 410, 497, 538, 560, 589,
611, 682. And see Notice ; Registeb.

notice of intended breach of, in fraud. 129

notification on register of, 155, 160, 161, 560, 58i

parol evidence of, 155

protection of, oy " no survivorship " entry, 155-161 162

protective entries, operation of, 161, 162

recognition of, in statutes, 155-157, 160, 161, 375, 424, 497, 585, 589

registered representative holds land in, 376-378, 459, 461, 496, 517, 585

restriction, protection by, 172

resulting, doctrine of, 108, 110, 154, 155

succession to land he^d in, 373, 374

title to, when warranted, 161
TRUSTEE— TRUSTEES,

absolute owner, deemed to hold as, 611. 687

" as trustees." effect of entry on register, 157, 158, 161. 162. 538, 589,
687

'bankruptcy, in, see Bankruptcy.

consent of, to initial application, 31, 405

constructive, initial applicant may be a, 108

creditors' representative is a, 356

deposit of title deeds by, effect of, 279, 283

equitable mortgage by deposit by, 283, 284

fraud, denial of trust is, 142

friendly society, of, transfer by, 318

indemnity, registered owner entitled to, as a, 460, 498

initial application by, 32, 404, 478, 521
registration of, 31, 32, 110

mortgagees who are, may refer to trust, 213, 274

mortgagor, of. foreclosure may be refused to, 258

name of, legal proceedings in, 157, 460, 498

new, vesting of land in, 366, 367, 381

personal representatives of deceased, not registered as successors, 381

personal representative is similar to, 382

power of sale, without, initial application by, 32, 40, 404
express, conferred by private Act. 33

purchaser from, gets good title, 33. 128, 129, 157
what conduct is fraud in, 128, 129

rectification of register against. 108. 110. 366

by owner being declared a. 136. 368

registrar may be nominated a, 157. 158. 498

removal of registered owner who is a, 366, 654. 682, 683

transfer by, to himself. 316. 330. 571
to, 687
TRUSTEE ACTS,

application of, to registered land, 156. 158, 159, 208, 539

appointment of new trustees under, 367

mortgagee has interest in land within. 208. 274

vesting orders under, 356. 365. 367. 450
UGANDA.

equitable mortgage by deposit. 18, 278

peculiar features of system in, 17, 18

registration statutes, 17

unregistered instruments inadmissible in evidence, 118

R.T.L. — 49

770 INDEX.

UNDIVIDED SHARE IN DAND, see Land.
UNREGISTERED INSTRUMENT,

assurances by, 7, 11, 111, 114, 166, 167, 532

contractual rights created by, 166, 167, 206, 220, 685

execution, relation back to, 221. And see Relation back.

for value not revocable, 118

form of, whether statutory or otherwise immaterial, 118

inadmissible in evidence, when, 113, 570, 571
. ineffectiveness of, to pass interest in land, 113-117, 310, 321, 323, 411,
570, 588, 610, 645, 646, 663

interest in land created by, 111, 114-118, 323, 329

maker, not inoperative as against, 587, 610, 646, 663

power of sale contained in, 288

right created by, is an equitable right, 114-118

to registration conferred by, 117, 118, 310-314, 323, 532, 570, 580

rights under, are assignable, 116, 118, 330, 570

voluntary, is revocable, 118

warrant to authorize registration, is a, 115, 117, 145, 146. 513, 690, 691
UNREGISTERED INTEREST (INTERESTS) {and see Equitable
interest) ,

creation of, when expressly permitted, 113, 114, 168, 193. 532

prohibited, 167, 168, 513
impliedly permitted, 168
not expressly permitted, 198

creditor's right under 13 Eliz. not an, 110

equitable interests, are on the footing of, lo3

fraud in defeating, what amounts to, 121

jurisdiction of courts in respect of, 108, 117, 118, 641

nature of, 112, 153

notice, doctrine of, not altered with respect to, 121, 126, 127

notice of, effect of, on registered owner, 120, 360

priority of registered title to, 113, 126, 127, 153, 254, 360, 570

purchaser from mortgagee takes free of, 254

registered title not affected by notice of, 123-125, 570

sheriff, how purchaser from, takes free of, 360

statutes and cases not uniform as to, 112
UNREGISTRABLE INTEREST (INTERESTS),

equitable interests in B. Honduras, 706, 707

lis pendens, 102, 536

mortgage containing beer covenant, qu., 215
in English form, 286
securing purchase money of chattels, 182, 621

restrictive personal covenant, 65, 102

short leases, 92-

title, though judicially declared good, 36
USES,

Statute of, statutory transfer operates apart from, 315, 316, 424

VENDOR,

benefit of contract may be assigned by, 308
contract assignable with consent of, 308, 309
convey land away, not entitled to, 308
initial application of purchaser, consent to, 38

registration at expense of, 304
lien of, for unpaid purchase money, 102, 103
purchase money, right to sue for, 301, 302

registered title of, unregistered purchaser not protected by, 126
specific performance when not enforceable by, 122, 304
specific performance, rigtht to, 301
title, liability to shew, 305

when to be registered, 563
transfer from, when purchaser entitled to, 307
unpaid, interest of, liable to execution, «*61, 654
unregistered, whether entitled to purchase money, 115, 116, 307
VENDOR AND PURCHASER,

analogy of, in investigating title for register, 53

conclusiveness of register as between, 97, 126

distinction between, in effect of warranty of title, 94, 126

INDEX. 771

VESTING ORDER,

statutes relating to, effect of, 54
vesting orders in cases of, 366, 367, 450
creditors' representative, in favour of, 356

direction for altering register whether to be contained in, 365
discharge of mortgage, on, 367
dissolution of corporation, on, 367
executor, against, 367
foreclosure, after, 257, 284

mortgagee's interest in land may be subject of, 208, 274
rectification of register carried out by, 364-367
right to, entitles to initial registration, 38
sale under equitable mortgage enforced by, 252
transfer of mortgage, on, 261, 262
Trustee Acts, under, 365-367, 450, 489
vendor and purchaser cases, in, 366, 367, 450
VICTORIA,

abstracts of title not used, 305

adverse possession, application for registration under, 405, 416-419.
origin of rights under, 75.
removal of easements from register, 418.
title acquired by, 35, 76, 86, 416.
assurance fund, no contribution to, on registration of executor, 440, 451
buildings, value of, excluded from amount of indemnity, 149
building society mortgage by transfer, 192, 290, 293
caveat, renewal of, forbidden, 59, 406
certificates of title called in, lists to be exhibited of, 416
contract for sale, conditions embodied in, 307, 461, 462, 464
covenant to repair runs with the land, 238, 239
Crown, indemnity for inaccuracy of parcels on sale by, 394, 395, 457

no adverse possession against. 35
deeds registry, initial registration recorded at, 69, 406
default of mortgagor, proof not required of. 255, 431
defective title accepted with increased fee, 54, 385, 408, 418. 423
discovery in civil proceedings, 458
donee of power, initial application by, 40, 404
duplicate, instruments other than transfers may be in, 409
equitable ownership of private road, what constitutes, 419, 420
estates tail aDrogated, 31, 316

barred by instrument of transfer, 316
execution of instruments abroad during war, 223. 445
foreclosure, alternative methods of, 256, 258, 439

debt extinguished by, 435, 436
foreclosure of unregistered land not re-opened, 259, 435
friendly society, transfer by trustees of, 318, 412, 426
initial application, applicant liable to caveator on withdrawing, 61, 406
ink, all signatures to instruments must be in, 445
Insolvency Act subject to registration statute, 354
Land Acts, prohibited transactions under, 441
lease, transfer of. method of registering, 321, 343, 409
leases, Conveyancing Act applies to, 429

short, valid without registration, 92, 413
limitation statutes, acquisition of title by possession under, 86. 416
limitation statutes or tenancy, distinction as to title under, 79, 92
lis pendens, registered land not affected by, 102, 461
mortgage, transfer of, method of registering, 321, 409
mortgage by donee of power, 212
mortgagee, consent of. to mortgagor's actions or suits, 268, 269. 434

exercise of power of sale by, proof not required of. 255, 431
occupation, rights under, nature of, 77

inchoate rights under, 77, 79
possession may be adverse or non-adverse, 77, 79, 92

superior to registration, 76, 77, 87, 92, 93, 380. 413. 416
private road, compensation for extinguishment of rights in, 423

vesting, in adjoining owners, 419-423
Real Property Acts, meaning of. 21

Real Property Act 1S62. New South Wales statute modelled on, 75
" registered land " in statutes. 22
registration statutes, 9, 75, 78, 79. 402. 463

772 INDEX.

VICTORIA— continued.

registration statutes, regulations under, 462

repealed duplicate enactment, effect of, 375

sheriff, production of certificate of title on transfer by, 318

stamps, provisions as to, 451

stay order, pending transaction protected by, 445, 446

sub-lease, special provisions as to, 343, 348, 349, 428-430

tenant, registered title subject to interest of, 92, 93, 341, 413

tenant for life, initial application by, 31, 40, 405

text-books relating to system in, 12

title by possession, procedure on claim to, 48, 56, 405, 416

'triplicate, leases and mortgages may be in, 410

" trustee " less frequently used in statutes, 156, 157

trustees for sale, initial application by, 32, 404

trusts, register of successory, 410

vesting order, form of application for, 463

vesting orders by commissioner of titles, 366, 416, 41S, 419, 421, 422

witnesses, list of official, 444, 445
VOID,

caveat, transaction not protected by, 287, 622'

fictitious name, registration by entry of, 145

registered instruments improperly obtained are, 144, 145

statutory direction that certain securities are, effect of, 117. 287

unregistered instrument is, how construed,
112, 116

transferor's title declared, effect of, 118

voidable, when it means, 145, 146
VOLUNTARY CONVEYANCES ACTS,

British Columbia, 11, 331. 575

England, 107, 109-111, 331

Ireland, 110

Jamaica, 110, 111

New South Wales, 110

New Zealand, 111

Queensland, 107

Tasmania, 111

Trinidad-Tobago, 111

Victoria, 111
VOLUNTARY TRANSACTION (TRANSACTIONS),

creditors' assignment is a, 351

for value, and, difference between, 106, 108, 109, 322

gift, by way of, revocable before registration, 118
VOLUNTEER— VOLUNTEERS,

Canadian courts, view of, 107

purchaser for value, and, difference between, 106-109, 130, 131

WARRANTY OF TITLE (and see Register),
affirmative and negative, 96, 97
conclusiveness of register, constituted by, 94-96
corporation once registered, conferred on, 228
different kinds of, 4, 16, 51, 96, 285
equitable mortgage by deposit has no, 283
essential feature of title registration, 2, 4, 94
indemnity, in absence of provision for, 368, 370

interchangeable with right to, 196, 202
interests in land excepted from, 94, 283
investigation of title implied by, 4, 51, 53, 62
lease, whether it extends to, 98
limited scope of some enactments, 352
mortgage, whether it extends to, 98, 196, 200, 201
mortgagee after foreclosure, extends to, 259
outstanding interest, entry of, carries no, 65, 176
purchaser from mortgagee, extends to, 202, 259
registered instrument, arises irrespective of form of, 329
registration in general, when enactments cover, 353

without full, result of, 285, 286, 306
restrictive entry gives no, 176

INDEX. 773

WESTERN AUSTRALIA,

adverse possession, origin of rights under, 75

title acquired by, 35, 76, 8G
building society mortgage, 209

buildings, value of, when excluded from amount of indemnity, 149
caveat, renewal of, forbidden, 59

equitable mortgage by deposit unprotected by, 390. 393, 468
contract for sale, conditions embodied in, 307
covenant to repair runs with the land, 238. 239
Crown, indemnity for inaccuracy of parcels on sale by, 394, 395
Crown lease, foreclosure of mortgage over, 260, 261, 466

forfeiture of, 467

minister of lands must consent to transfer of, 466

mortgage over, 469, 470

registration of, 465, 466
defective title accepted with increased fee, 54, 385
donee of power, initial application by, 40
estate tail barred by instrument of transfer, 316
execution of instruments abroad during war, 223, 465
execution, writ of, amending enactment, 468
foreclosure, alternative methods of, 256, 258

foreclosure of Crown lease, minister for lands must consent to, 466
friendly society, transfer by trustees of, 318
infant, capacity of, to deal with Crown leases, 467
initial application, applicant liable to caveator on withdrawing, 61
leases, short, valid without registration, 92
limitation statutes, acquisition of title by possession under, 86
limitation statutes or tenancy, distinction as to title under, 79, 92
lis pendens, registered land not affected by, 102
mortgage by donee of power, 212

mortgagee, consent of. to mortgagor's actions or suits. 268, 269
occupation, inchoate rights under, 77, 79
rights under, nature of, 77
possession may be adverse or non-adverse, 77, 79, 92
superior to registration, 76, 77, 87, 92, 93
registration abstract not provided for, 20

statutes, 9, 78, 465
removal of land from register, 72

sheriff, production of certificate of title on transfer by, 318
statutory mortgage, amending enactment. 467, 468
sub-lease, special provisions as to, 343. 348. 349
tenant for life, initial application by, 31, 40
tenant, registered title subject to interest of, 92, 93. 341
title by possession, procedure on claim to, 48, 56
WIDL,

caveat, beneficial interests protected by, 497
charge created by, registration of, 681
devisee under, entitled to registration, 687
freehold, devisee not taking, under, 371-373, 662, 681
transmission under, application to be registered on, 458, 459. 496, 687
representative holds land subject to dispositions of, 517
register, incorporated in,, in Manitoba. 160. 378. 585
WITNESS— WITNESSES, lists of official, 444. 445, 502, 518. 673. 674, 682,

701, 702
WRITING,

agreement for initial registration need not be in, 304
caveat may support interest not created by. see Caveat.
equitable mortgage by deposit without, see Equitable mortgage by
deposit.

YUKON DISTRICT, North- West Territories statutes in force, 6, 13.

•

754
H54

Hogg, James Edward

Registration of title
to land throughout the
empire

PLEASE DO NOT REMOVE
CARDS OR SUPS FROM THIS POCKET

ERINDALE COLLEGE LIBRARY
MISSISSAUGA ONTARIO

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