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AR'1'.XIV.—CONVEYANCING IN SOUTH AUSTRALIA BY REGISTRATION OF TITLE.
1. Speeches of ROBERT R. Tommns, Esq., explanatory of his Measure for Reform of the Law of Real Property .- to which is appended a Oopy of the Act, as passed by the Parliament of South Australia.
2. South Australia.-—Lands Titles Registration Ofiice Returns. Ordered by the House of Assembly to be printed, December 14, 1858.
3. The South Australian System of Conveyancing by Registration of Title, with Instructions for the Guidance of Parties dealing, illustrated by Copies of the Books and Forms in Use in the Lands Titles Ofiice, by ROBERT R. TORRENS: to which is added the South Australian Real Property Act as amended, with a Uopious Index, by HENRY GAWLER, Esq., Banister, Solicitor to the Lands Titles Commissioners. Adelaide: and London: Butterworths, 1859.
N a recent number of this Magazine‘ we commented at considerable length upon the ambitious but abortive schemes of Lord Derby’s government, for the reform of the law affecting conveyancing in England. We pointed out the utter incapacity of those by whom the measures were prepared and introduced, either to appreciate the inherent difficulties of the question, or to apply appropriate remedies for the existing evil. There were not wanting those who could talk eloquently upon the subject; but there, providentially, their power ceased, for they were incapable of conceiving or carrying out a practical and useful reform. Whilst in England we are holding debate, making reports, sketching bills, and altering them again and again in the imbe
cility of doubt and uncertainty, our brethren in the province of South Australia have considered thoroughly, and successfully conquered, their analogous difficulties with respect to titles to land, and it will be interesting to consider how this has been accomplished.
It happened that in this province Mr. R. R Torrens, a man of remarkable talent and energy, and of comprehensive grasp of mind, had devoted his thought to the subject in question. He tells us that, twenty-two years ago, his attention was painfully drawn to the grievous injury and injustice inflicted under the English lavajof real property, by the misery and ruin which fell upon a relation who was drawn into the maelstrom of the Court of Chancery, and that he then resolved some day to strike a blow at the system. This gentleman had not received a legal education ; but, after having been employed in the customs’ service for seventeen years, he was in the year 1853 appointed Registrar-general of Deeds in the colony, and thus had an opportunity of gaining an insight into the details of conveyancing, in addition to his knowledge of the law of shipping, with which his earlier duties had already made him familiar. In right of his oflice he had a seat in the legislature, but, for a time, he refrained from introducing his plans, not deeming himself suficiently strong to carry them through. It was not until he was called upon by the citizens of Adelaide to represent them in the first parliament under the new constitution, that Mr. Torrens brought his views under the notice of the legislature. On the 4th June, 1857, a bill embodying those views was introduced by him, and read a first time. The second reading was carried without division ; and the third, notwithstanding the strenuous opposition of the government of the province, was carried by a considerable majority. The measure passed the legislative council, and on the 27th January 1858, was assented to by the Governor~in-Chief on behalf of Her Majesty, and thus became law.
It was not to be expected that a measure which affected a total revolution in the modes of dealing with real property should at once be perfect, and require no amendment. Some defects in the working details of the act were discovered shortly after it came into operation, and these were accordingly amended in the‘ succeeding session of parliament. Of the act as amended, we
now propose to give a short account, directing attention more
particularly to that portion of it which deals with the mode
of bringing land under its operation, for this has always been
admitted to be the great difficulty.
Our readers are doubtless aware that all land in South Australia is held under direct grants from the Grown. The act, which came into operation on the 2nd July, 1858, is compulsory as to land comprised in grants made on or after that day; but land held under any prior grant may be brought under the operation of the act or not, at the option of the proprietor. The act provides for the appointment of a Registrar-general and two Commissioners, and to these three persons, who are styled “Lands Titles Commissioners," all applications for bringing land under the operation of the act are referred. The act also provides for the appointment of two permanent counsel to assist the Commissioners.
The application may be made by any of the following persons, namely :—
1. By any person claiming to be entitled to a fee-simple in possession at law or in equity, and not being a mortgagee ; but trustees, in whom an express power of sale is not vested, must procure the consent of the person entitled beneficially to the first estate for life, or other greater estate.
2. By a purchaser of a fee-simple, with the consent of the vendor.
3. By any person claiming to be entitled beneficially to land for a life estate, or other greater estate in possession.
4. A married woman may apply, with the consent of her husband ; the father, or (if the father be dead) the mother, or other guardian, may apply on behalf of a minor, and a committee on behalf of a lunatic ; but a mortgager may not apply without the consent of his mortgagee; and, as regards tenancies in common, all the persons entitled must join in the application.
The applicant deposits with the Registrar-general such title
deeds as are in his possession, or under his control ; and also, if required, an abstract of his title, in which all instruments affecting the title, and the names and addresses of all persons in any manner interested in the land, must be set forth, and the applicant makes a declaration as to the truth of the abstract. The application is then referred to the Lands Titles Commissioners, and if it appear to them that the applicant was the original grantee, and that the grant was made on or after the 1st March, 1842, and that no transaction affecting the title has been registered in the province, then they may direct the Registrar-general to bring the land under the operation of the act forthwith. The reason of this is obvious; for by the registry of deeds, in operation since lst March, 1842, the commissioners can test the accuracy of the applicant’s abstract, and the validity of his title. If, however, the grant was made before the 1st March, 1842, and the title of the applicant is not derived by transmission (11. e., by devise, descent, bankruptcy, insolvency, or marriage), and all incumbrances are satisfied, or all incumbrancers join in the application; then the commissioners direct the Registrar-general to cause notice of the application to be advertised, and appoint a time (not less than one month, or more than twelve months), after which the Registrar-general, unless he shall in the mean time have received a caveat, proceeds to bring the land under the operation of the act. But if the applicant’s title has been derived by transmission, or is imperfect, or all necessary parties do not join in the application, such application may be altogether rejected, or the commissioners may direct notice of it to be advertised, and appoint a time (not less than two months, and not more than three years), within which the Registrar-general may, in the absence of any caveat, bring the land under the operation of the act.
The caveat may be lodged by any person claiming an interest in the land advertised as about to be brought under the act. It must partieularise the interest of the caveator; and if made under any instruments not set forth in the abstract deposited by the applicant proprietor, the caveator must deliver an abstract of his title, and this abstract must contain the same matters, and is subject to the same regulations, as are prescribed with respect to the abstract of the applicant proprietor himself. Upon the receipt of a caveat, the Registrar-general notifies the same to the applicant proprietor, and stays further proceedings until the caveat is withdrawn, or lapses, or a decision is obtained from the Court having jurisdiction in the matter.’ The caveat lapses unless, within three months after its date, the caveator take proceedings for establishing his claim; and if he fail to show to the satisfaction of the judge before whom the proceedings may be instituted, probable cause for lodging the caveat, he is liable to a penalty not exceeding £100.
Any applicant who may be dissatisfied with the decision of the Commissioners or the Registrar-general, may appeal to the Supreme Court of the province; but all expenses attending the appeal, whether the court decide in favour of or against the applicant must be home by him. This seems somewhat hard, but it is difficult to conceive what other course could, under the circumstances, be proposed.
When land is brought under the operation of the act, a certificate of title is issued to the applicant in a form prescribed by the act, and in which the nature of the estate of the applicant (whether fee-simple or otherwise) is stated; the instruments of title relating solely to the land comprised in the certificate are cancelled and retained by the Registrar-general; but such instruments of title as relate also to other property (whether real or personal), are returned to the applicant, the Registrar first endorsing on them a memorandum, setting forth that they are cancelled as to the land included in the certificate.
When a certificate of title has been issued in respect of an estate less than a fee-simple, the remainder-man may apply to be registered as such ; and his application is dealt with, and his title investigated, in the same manner as the application and title of a person in possession. Curiously enough, there is an express provision in the act prohibiting a registered remainder»-man from dealing with his estate except in the manner prescribed by the act; but there is no such empress provision with regard to the