REAL PROPERTY ACT.

Colonist, Volume III, Issue 295, 17 August 1860, Page 4

REAL PROPERTY ACT.

The Adelaide Observer publishes at length the judgments delivered io the case Hutchinson ©.■Lee worthy, by the three judges, aud against which the defendeat, it appears, has not the intention to appeal, as stated.

The Observer says:—The lawyers bave triumphed in their appeal to a Court of Lawyers, and the publio must again begin, de novo, their toilsome efforts to obtain emancipation from a bondage which in every British community is now felt to be intolerably oppressive. For the judgment just recorded establishes a precedent which will apply to every case of disputed ownership of land brought under the operation of the Real Property Act, whether the dispute arise from laohes of the Crown or from any proprietor holding from the Crown. It is held by the court that the certificate of title issued under the Real Property Act is of no greater validity than the title which has been surrendered in exebange for it—that that the holder of the certificate is just as liable to eviction by virtue of a prior title as though he had not brought his property under the Act, and, by consequence, that every purchaser from the "registered owner" must take just as much pains to investigate all the particulars connected with the previous history of the title, as though he were buying under the old system. The mere accident of Mr. Hutchinson's title being a land grant of older date than that from which Mis. Leeworthy's title was derived has nothiug essential to do with the case.

The principle on which Judges have set aside the verdict of the jury in favor of the defendant is, that the plaintiff showed a better title. There is no ambiguity whatever on this point in the utterances of the learned Judges. They affirm distinctly that registration as a proprietor in books of the Lands Titles Office is of no avail whatever, unless the proprietorship itself is valid aud good against all comers. The certificate of title, they say, has no unquestionable anthority —it must sustain itself against all impugners, whether urging their claims under a grant from the Crown, or-a conveyance from some intermediate owner. And should some better claim; be proved, an action of ejectment would speedily dislodge the "registered proprietor," although the Act expressly determines that no action of ejectment shall lie against him, and although he has paid to the Government a sum of money expressly to compensate auy just claimant, and by direct implication as the price of his own immunity from ejectment.

Mr. Torrens, we observe, takes a different view of the case, and maintains that the opinions attributed to the bench as. a body, were that a certificate of title is not indefeasible in those of Mr. Justice Boothby . only. He remarks: Mr. Justice Boothby having declared any sense of the word, and that.its validity depends upon the validity of the deeds and other evidence Upon which it is issued; the Chief Justice having declared the expression that the " certificate of title shall absolutely vestthe estate or interest in the land," '&0., &c;, &c, .will no doubt be useful in protecting land property brought under the Act from outstanding claims not noticed on the certificate ;'■ and Mr., Justice Gwynne being silent upon this question, which Iwas not involved in the case before him—it is impossible to maintain that-the bench as a |body has pronounced any'decision upon this extraneous point, and so far as the deoision upon the actual case is concerned the Real Property Act remains, untouched. That Act never contemplated that a certificate of title should override a land grant of the same land or have either greater or.less validity than a land

■grant. ■ ' ;;-'- ■ ';" i ' _;,"'_ '.•';, ..' ... '.- '■ In conclusion^ he adds: It is most fortiiuate1 that the Judges have so fully declared their views upon the; Act at, this juncture, ere the Lands Titles Commissioners had completed the ;revisioh of the bill to consolidate;'the |Real Property Acts. With'the aid of the solicitors the points of doubt raised by their Honors shall be effectually .provided for in.the'proposed. bil| and a saving clause added to: ensure the validity of all previous transactions before: it is handed to the Government to be laid before the Legislature. The delay of a week thereby entailed will -be amply compensated by the greater security and completeness thus attained.