« PreviousContinue »
leases and mortgages, by simple endorsement on the lease or mortgage. The covenants to be implied in all instruments, and 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 forti 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 wit] the estate as if they were beneficial owners), and for the transmission 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 has 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by the registered proprietor before the judges of the Supreme Court, to shew cause why the caveats would not be withdrawn,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 80 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
i 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
1 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:
1 Returns, p. 2. * Vide Pamphlet, numbered 3 at the head of this Article, p. 79.
This, we observe, is a slight increase upon the amount originally estimated by Mr. Torrens in his returns, in which the expenses were set down at £4060. The annual income, when the entire business in land of the colony comes to be conducted under the act, the Registrar-general estimates at £7000, thus leaving a very handsome surplus. These estimates are made on the supposition that the number of transactions will amount to 8000, or 10,000 annually, but the Registrar-general believes that the business might be increased tenfold without more than doubling the expenditure.
Mr. Torrens dwells ? upon the beneficial results which have already been attained by means of the act. Of these we will mention two which are of considerable importance, and which would be of value to many a landowner in England if a similar system were here introduced. The first of these results is, that “ considerable proportion of the land brought under the act, and in respect of which certificates of title indefeasible have been issued, was previously held under titles against which objections had been raised on account of imperfections in evidence, or on technical points, in consequence of which the market value of the land was seriously depreciated.” Such objections are usually obviated in England by means of special conditions of sale which, those who have taken the trouble to wade through the evidence given
* As soon as the bulk of the lands of the colony have been brought under the act, the Registrar-general thinks one solicitor will be sufficient.
? Returns, p. 2.
before the Registration Commissioners of 1857 are aware, do not, in the opinion of competent judges, materially affect the market value of property in this country. The case may be different in Australia ; and indeed there can be no doubt that, in England, careful trustees seldom lay out their trust moneys in the purchase of land sold under stringent conditions, though probably the number of such careful trustees is not sufficiently great to affect the market value of land.
The other beneficial result referred to is, that in the five months during which the act was in operation, sixteen cases had occurred in which persons who had lost the whole of their deeds by fire, had, upon the production of secondary evidence, obtained fresh and indefeasible titles to their lands at a cost averaging three pounds in each case. We fear, however, that such a result will never be attainable, in any case, in the mother country, at a like reasonable cost.
Such then is the system, and such the result of the system, introduced into the province of South Australia. The English Registration Commissioners of 1857, stated the object of their inquiry to be, “By what means, consistently with the preservation of existing rights, can we now obtain such a system of registration as will enable owners to deal with land in as simple and easy a manner, as far as title is concerned, and the difference in the nature of the subject matter may allow, as they can now deal with moveable chattels or stock ?" Mr. Torrens declares that “this is no longer a problem for solution ; it is a realized fact. The South Australian legislature has provided means of escape from the grievous yoke of the English property law, and the colonists are rapidly availing themselves of those means."
Now, it is difficult to conceive why similar means should not be suitable for the exigencies of England. There are, we are aware, some who contend that the dealings with land are more complicated here than in the colony; and, therefore, that a measure which may work easily and successfully there, would not meet with the same success in the mother country. To these per
* Pamphlet, No. 3, p. 44