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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the Registrar-general notifies the same to the applicant proprietor, and stays further proceedings until the caveat is withdrawn, or lapses, or a decision is obtained from the Court having jurisdiction in the matter.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, mayappeal 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 borne 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 bis 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 express provision with regard to the
estate of a person registered as entitled in possession. This is a defect in the act which perhaps may hereafter give rise to some doubt and difficulty.
As soon as the estate of a remainder-man, whether registered às such or not, becomes an estate in possession, the existing certificate of title is cancelled, and a new one issued as the nature of the case may require; but the Registrar-general may, before issuing such new certificate, cause the title of the person claiming to be entitled as remainder-man to be investigated, and advertisements to be issued in the same manner as is provided for the case of an application for bringing land under the operation of the act.
The certificate of title is made out in duplicate, one of such certificates is given to the applicant proprietor, and the other is retained by the Registrar, and bound up in a book, which forms the Register book. On each certificate are endorsed the particulars of any incumbrance or outstanding estate affecting the land of which the Registrar may have notice; and except in the case of fraud, and so far as regards any misdescription of the land, every certificate of title or entry in the Register book, signed by the Registrar-general, absolutely vests the estate or interest in the manner and to the effect expressed in the certificate or entry.
We now come to the mode of dealing with land brought under the operation of the act, but to which we can but very briefly refer.
Upon a sale, a memorandum of sale executed in a form prescribed by the act is produced to the Registrar, who enters the particulars thereof in the Register book, and endorses the fact of such entry on the memorandum ; upon which the estate or interest, as set forth in the memorandum, vests in the purchaser. If the whole fee-simple be sold, the existing certificate of title is cancelled, and a fresh certificate issued to the purchaser. The forms of leases and mortgages are also prescribed by the act, and the particulars of such dealings are entered in the Register book, Powers are given by the act to mortgagees, similar to those contained in ordinary deeds of mortgage with powers of sale. The act also provides for the surrender of leases, and the transfer of
leases and mortgages, by simple endorsement on the lease or mortgage. The covenants to be implied in all instruments, ant the covenants to be implied in mortgages and in leases (as well on the part of the lessors as on that of the lessee), are set fort! in the act; but these implied covenants may be negatived o. modified by express declaration. The act also contains provision for vesting registered land in trustees (who may, however, deal witl the estate as if they were beneficial owners), and for the transmis. sion of estates upon death, bankruptcy, insolvency, marriage, &c. Cases of fraud are dealt with by the Supreme Court, but the rights of purchasers for valuable consideration are not affected by any fraud. The rights of persons interested in land, registered in the name of the ostensible proprietor, may be protected by caveats; any such caveat, however, may be cancelled by the Registrar-general, upon proof being given to his satisfaction that the interest of the caveator bas ceased or been satisfied, or is insufficient to warrant the caveat, and the caveator may also be summoned by the registered proprietor before the judges of the Supreme Court, to 'shew cause why the caveats would not be withdrawn,
One of the great features of the act is the creation of an assurance fund for indemnifying persons who may be wrongfully dispossessed of their land, under the provisions of the act. This fund is raised by means of a percentage of a halfpenny in the pound upon the value of all land, upon its being first brought under the operation of the act, and upon the registration of a remainder-man as such, or upon his estate coming into possession, and also upon the registration of title to land derived through the will or intestacy of a previous proprietor. Should the assurance fund prove insufficient, the deficiency is made good out of the general revenues of the province. The two commissioners are remunerated by fees paid on applications referred to them. The amount of the fee paid by an applicant for this purpose may be less than, but cannot exceed, £1. Other fees are payable upon dealings with registered land being had, and these
last are also exceedingly moderate, and form part of the general revenues of the province.
We have now given our readers a slight sketch of the leading particulars of this highly creditable measure, which those who are interested in the subject will do well to examine for themselves in detail. That it has been successful under the able administration of Mr. Torrens, the Registrar-general, may, we think, be fairly affirmed. The act, as already mentioned, came into operation on the 1st July, 1858; and the returns referred to at the head of this article were made up to the 1st of December in the same year, and consequently embrace a period of five months, and we find that in that period there were 176 applications. These were disposed of as follows:
We find also from the returns, that several persons holding general powers of attorney made applications for bringing the lands of their principals under the provisions of the act; but the solicitors to the commissioners decided --and we think properly decided—that no power executed prior to the day upon which the act came into operation, would authorize the attorney to make the application. No record was kept of the number of persons so applying; but it is supposed to have exceeded thirty, and that a still greater number were deterred from making similar applications by the knowledge of the decision. The act as amended, however, gives an attorney having a power of sale, and having contracted to sell, power to make the necessary application, and to receive the certificate of title in the name of his principal. Three applications by trustees were attempted, but the applicants were informed that the act (i. e., the original act, for the returns were made before the amended bill had passed) did not make sufficient provision for these cases. The Registrar-general
mentions as one of the causes which operated to retard the general adoption of the act, the fact that, under the original act, the expense and delay to which applicant proprietors, holding under the unquestionable title of a land-grant, were subjected, deterred many such proprietors from making the application. Under the act as amended, both the delay and expense are much diminished. The Registrar-general also observes that the applications, though not numerous, increased gradually. Thus, in the first month they numbered 24; in the third month, 34; and in the fifth month, 50. Confidence," says Mr. Torrens, “ in a measure of this nature, comes not by inspiration in an hour, but grows day by day as its soundness is tested.”
The total value of the land brought under the operation of the act in the above-mentioned period of five months, amounted to £150,388; of which £57,810 was the value of the land brought under the act by approved applications, and £92,578 the value of land alienated from the Crown, in the interval elapsing between July 2nd and December 3rd, 1858. The transactions completed, or in progress, during the same period, wereTransfers.
The amount secured by mortgage was £11,000, and the following was the amount of fees collected and payable on transactions completed, and in progress-Payable to the Commissioners :Application Fees .
£158 0 0
£456 0 0
156 13 1
The Registrar-general estimates the expenses of the establishment which will be required for conducting the entire business in land of the colony on this system, as follows:
Returns, p. 2.