D—No. 1
PROPOSED REGULATIONS UNDER THE LAND REGISTRY ACT 1860.
PRESENTED TO BOTH HOUSES OF THE ASSEMBLY BY COMMAND OF HIS EXCELLENCY.
3 D—No. 1
PROPOSED REGULATIONS UNDER THE LAND REGISTRY ACT 1860.
Registrar General of Land's Office, Auckland, May 3rd, 1861. S IE; —I transmit to you the draft of Regulations, under the Land Registry Act, 1860, which I recommend as suitable for the adoption of the Governor in Council, pursuant to the 71st section of the Act. The following is an outline of the plan which I propose: — » I. Any system of Registration, at all events in this Colony, must in my opinion fail of success unless based upon Surveys and Maps. Without these, land cannot be defined with accuracy, and without such definition, Registration with exactness is impossible. The lands of the Colony are, for the most part, unoccupied;—a proper nomenclature of topographical divisions is wanting; —and the test of ownership is not reducible, as in the Home country, to actual occupation. Practically we are compelled to have recourse to Maps, more or less accurate, in all our transactions respecting land. If indeed the sole object of Registration were to secure the titles of individual proprietors, it might be possible to found a system upon the separate descriptions and maps contained in Crown Grants ; but to rest here, would be to ignore one of the great uses of a Register. It is wanted not merely to secure individual proprietors, but as a guide to the public. Wanting maps, the public want the only practical clue to the discovery of title. A nominal index, by itself, can only be of partial use, Besides, if Government is to insure titles, as proposed by the new Act, it is indispensable that Government should in self-protection possess a means of reference to the lands, in respect of which they assume liability, and be enabled to distinguish them with accuracy. The arguments on this question' are stated pro and con in the Report of the English Registration Commissioner of 15th May, 1857. The reasons there urged against a system of Registration founded on Maps, viz., delay and expense of construction, have little weight in the Colony, where, in this early stage, the work required is comparatively trifling and inexpensive;—while on the other hand the reasons in favour of adopting them, have tenfold weight in a country where the divisions of ownership are almost entirely dependent on surveys, and which is for the most part destitute of visible lines of occupation and local designations. Whilst, however, I insist on the pictorial representation by maps of land and its boundaries as the sine qua non of a Registration system, I admit that there is a test of ownership higher and more authentic than map delineation, viz., rightful occupation. Map delineation ought to be made subordinate to this, and where discrepancy may be found between the two, error is to be presumed in the map, and provision made for correcting it. Rightful occupation may be shewn, either expressly, —as where land has been actually laid off, or possession delivered to purchasers ;— In such case if the map differs from the occupation, the occupation must be taken to be correct; — the map is in fault; —or impliedly, where land has been occupied for a length of time, after a certain fashion, without dispute, —still more, if the lines of occupation of one proprietor have been assumed as a basis of measurement by adjoining proprietors, —in these cases also, the maps should be corrected according to the actual lines of occupation. The want of some means of correcting errors of survey of this kind is greatly felt. I submit for your consideration the accompanying Draft Bill, which ; will, I hope, if adopted by the Legislature, contribute to the removal of difficulties of title, arising . from this source, and greatly facilitate the work of Registration. 11. I have already, with the sanction of the Government, taken steps to obtain proper ] Registration Maps from various Provinces. The Survey Departments are under the direction of the Provincial Governments. Here I ] may remark that, as a safeguard to the Crown and the General Government, in disposing of the j public lands, it appears to me reasonable that some supervision should be exercised on the part of I the General Government, over the laying out of the public lands for sale, under the direction of the Provincial Departments. The maps according to which the pubic lands are laid out, and from which Crown Grants are practically compiled, are the true basis of contract between the Crown and its purchasers, out of which the liability, on the part of the Crown towards its purchasers, arises. Though, in a general way, reliance may be placed on the Provincial Survey Departments, this is not an invariable rule; —and the General Government, which represents the Crown, ought, in my opinion, to have means within itself of testing and insuring the accuracy of all Sale Maps, To the Honourable The Attorney-General.
f Surveys & Maps. l
' See Sessional Papers ; 1858, p. 1.
Surveys subordinate to rightful occupation
Proposed Survey Ameudment Bill.
Registration Maps.
Expediency of General Government Supervision.
D—No. 1
PROPOSED REGULATIONS UNDER THE Of the plan of sell ing land without or [before Survey it is impossible to write in too strong terms of condemnation. It is sure, in course of time, to produce results of the most mischievous kind, —confusion, litigation, and uncertainty of title, —than which nothing tends mora to hinder the progress and improvement of a country. I venture also to remark that the time has arrived for laying down and defining topographical divisions throughout the Colony. Such divisions, with a proper nomenclature, are absolutely needed for Registration and general purposes. I propose, in the construction of the Registration Maps, to proceed upon the basis of existing local divisions, as I find them in use, in the different Provinces, such as Counties, Districts, Squares, Blocks, Parishes, Townships and Suburban Districts. According to these divisions, lands in the different Provinces have been laid off and sold, and those local designations are adopted into and form part of the ordinary descriptions in. Crown Grants. Whatever changes may be hereafter made in topographical divisions, the old divisions must be concurrently preserved, at all events, for some time to come, as guides to existing Titles. I propose that the Registration Maps shall be of as large a size as can be, conveniently—say, elephant folio, so that they may lie in portfolios. Rural districts will include, on an average, about ten miles square, the maps heing about to the mile, —each map, say, about 4 feet, 6 inches by 3 feet 6 inches. A Skeleton Map of each entire Province will represent the whole, in a collective form, and serve as an Index to the Registration Maps. The Registration maps will exhibit all the sections and allotments granted by the Crown, agreeing as nearly as may be with the Crown Grants themselves, for the Crown Grant is the basis of individual Titles. 111. It is obvious that no such map, of any district, could be completely filled up, until all the lands of the district are exhausted. For a long time, the issue of fresh Grants will go on, in each district, and it will be necessary to make provision for incorporating such new Grants into the Registration Maps. I propose, as a starting point, to fix a certain date, say, the 31st December, 1860, as the point of time to which the original maps should be completed, showing all the Crown Grants issued up to that date. From thence it will be necessary to make additions from time to time, as fresh land is sold. This may be done by means of transcripts or tracings supplied by the respective Land and Survey departments, as the land is sold off. For this purpose, and generally for the purpose of carrying on the system of Registration, it will be necessary to establish a correspondence between the Registration and Survey Departments. Here I may mention, that it is indispensable that there should be attached to the office of each District Registrar a properly qualified surveyor or draughtsman. Independently of the work of adding on the Registration Maps the plans of fresh Crowii Grants, the proposed system of registration will, in all its parts, require the help of skilled surveyors, or draughtsmen. For want of these, the registration of Deeds is now carried on to great disadvantage. From the defective maps now in use there is no certain clue to past transactions. The plans on registered Deeds are commonly made by unskilled persons, very carelessly, and without the conditions requisite for identifying, with any approach to accuracy, the land they relate to. These plans are copied into the register books by copying clerks, without, in general, being subject to test or examination. I need not say that when hereafter questions of title shall arise, depending on these maps, they will rather lead to, than prevent, confusion and litigation. It will be impossible to establish a good system of registration, without effectually remedying this evil. It has been objected against the adoption of the maps now in use in the different Survey offices, that they contain known errors, in some cases of magnitude. But whatever such errors may be, these maps are the basis on which the landshave been dealt with, an d Crown Grants framed. They therefore become necessary references for purposes of Title, though, whilst wo recognise them for such purpose, we must make provision for correcting their errors. That provision will, I hope, be supplied by the Bill oi which I have drawn your attention. As a general rule, the Registration- Maps will no doubt be found to agree with the Crown Grants; —and the sections and allotments shown on the Maps will, for the most part, be found to correspond with those on the Crown Grants, but this will not be invariably the case. I foresee that, in compiling the Registration Maps there will be occasional discrepancies between the maps as compiled and the plans on old Crown Grants. These discrepancies will show themselves in examining Titles. They will for the most part arise from errors in original maps, from which the Crown Grants have been taken. These will form a class of errors to be corrected by the proposed Bill.. The connecting link between the map and the registers will be supplied by reference numbers. The sections or allotments shown on each map will be consecutively numbered. These numbers will serve as a reference from the registers and indexes. IV. If land were only dealt with in entire sections, it would be comparatively easy to construct a system of registration, either of Titles or Assurances. The Registration Ordinance now in force requires and assumes that there shall be Registration Maps of each district, to which all Deeds shall refer. The sections shown on such maps are supposed to be distinctively numbered. Index books are opened in each Registry Office, in which a page is appropriated to each section by its proper number, under which, are gathered together, at one view, the particulars of all the registered instruments of title relating to each section. At first sight, it would appear as if this would answer all
Sale before Survey.
Topographical Divisions.
Size of Registration Maps.
Skeleton Map of District.
Supplementary Maps.
Necessity for skilled Surveyor in the Registration Office.
Errors in Maps.
Reference Numbers.
Snbdivsions of Sections.
LAND REGISTRY ACT, 1860. the purposes of a registration of Assurances ; and it does so well enough, so long as the transactions relate to the entirety of a section. But difficulties grow as time advances, and transactions multiply. The subdivision of sections is matter of daily occurrence, and subdivisional parts are again broken up into smaller sections. Here the present system is at fault. There are no practical means of disentangling the Title to separate fractional parts. Here and there, according to the judgment of a, Registrar, the subdivisional sections, called " Derivative Titles," are carried off to new pages, and become new Heads of Title ; but there is no guarantee for the authenticity of such subdivisions, or for the Titles dependent on them. The Registrar's memory, local information, and a general reliance on the bona fides of transactions, supplies for the most part the defects of the Register. I will illustrate this by reference to the practice of the existing Registration Offices. It will lead at once to some palpable defects in the present law, and serve to guide us in the construction of a new plan. In Nelson, The Chief Clerk in the Register Office informed me that,—" no provision is made in " the system of Registration for subdivision of Titles, and Titles are not kept under distinct heads, "as provided by the 34th and 35th Sections of the Registration Ordinance. In order to supply " this, maps would be requisite." (I should state that throughout the Colony the Register Offices are not supplied with maps.) " The Registration Office has no maps in connection with its work. " Reliance is placed on maps on Deeds. There are no means of checking errors on such maps, " though it is known that there are frequent errors." In Wellington, the Registrar, Mr. J. E. Smith, informs me that " in the case of subdivisions "of land, although, practically, derivative Titles are carried off to new pages referring to the " original number, it is impossible to insure precision. In fact a person cannot deal with safety with " any portion of an original Section, without examining the Register, as regards all the parts of " such Section." In Otago, "the Instruments registered are in number 1189. They are all registered consecu- " tively in order, as they come in without distinction of locality. The Index prescribed by the " Registration Ordinance has been disused for many years past. There being no maps to which " the Index could refer, the Index was not practicable. There are very few Deeds indeed in the "Index Book. The Index actually used is one constructed by the present clerk. The form is as " follows :— Number. Nature of Instrument. Names. Date of presentation. By whom presented. "About the commencement of January, 1860, a new practice was commenced by adding two "additional columns, descriptive of the Sections and locality. " The only clue to Titles on the Register is through these Indexes. *The Registrar's time is "occupied with other business. The clerk does the best he can by the help of his own memory " and knowledge of the places and persons." In Canterbury, "no alphabetical Index has been constructed. Index Books are kept in " accordance with the Ordinance, except that the column of Reference has not been used, it being " impracticable, in fact, to follow the subdivisions of land. As regards subdivisions, no notice is "taken of them, but all Deeds are indexed under the original Section." My attention was called to two cases in particular. One the case of a Section embracing all the Town Reserves of Christchurch, where the subdivisions are extremely numerous ; the other the case of Kaiapoi, a Town laid off, out of Church land, and divided into a great number of minute Sections. The number of Deeds registered against the latter Section amounts to nearly 200, each of which must be examined in order to ascertain the state of the Title to any particular Section. A leading solicitor of Christchurch informed me that as regards property held under these Titles, he declined to advise his clients to buy or advance money on mortgage. In Auckland, in answer to my enquiries on the subject, I was referred by the Chief Clerk to two instances. One a Section belonging to Mr. Fairbairn, containing 2507 acres, 2 roods, 1 pole, Parish of Manurewa, County of Eden, —The number of Instruments recorded against that Section is 70. There are about 420 subdivisions. I questioned him, as to how he would distinguish the particular Instruments relating to the particular allotments. He referred me to a map (in the Register Book) of the- original Section; but which was in fact only a transcript from the Crown' Grant, showing the original Section. The Office is not supplied with any map of subdivided Sections. The practice is, in a Note subjoined to the Index, to specify against each Instrument the number of acres dealt with by such Instrument; but no other means of identification exist, so that I could not find any mode of identifying what lands each Instrument referred to, except by referring to the Instruments themselves. By collation of these, one with another, it may be possible to ascertain the way in which each separate portion of the land is affected by the registered Deeds, and how one part affects the limits of the other—but this only so far as the land has been surveyed with accuracy. The plans however on the different Deeds have been loosely drawn, and only represent approximately the dimensions, &c, of the land. I should add that the Clerk stated that in his judgement " It would not be necessary to refer to all the instruments registered, in order to ascertain the Title to each part." But he failed to indicate any mode by which this necessity could be avoided, and I came to the conclusion that in Auckland, as well as in other Provinces, it would be necessary on an examination of Title, to insura
D—No. 1
Defects in present Registration System.
*I should note that his Salary is only £40 per annum.
D—No.l
PROPOSED REGULATIONS UNDER THE a purchaser's safety, to examine all the instruments registered against the section to which the Title related. From the multiplicity of these instruments, property will thus become (in some instances is already) to a great extent unmarketable. I have dwelt on this point because it appears to me to form the key to any true system of Registration. Exact definition of the land, is the first essential condition. Without such exact definition there must be confusion. With it, Registration whether of Titles or Assurances is comparatively simple and easy. I am so persuaded of the defects which I have pointed out in the present system, that in my opinion it would be better to abolish Registration altogether, than to leave things as they are. The Auckland system, which is indebted for many improvements to the present Registrar Mr. Kelly, fails in this point equally with the rest. In order to remedy these defects I propose a series of Regulations, having for their object the attainment of perfect Subdivisional Maps in all cases of subdivision of original Sections. The cases of subdivision may be classed thus:— First, where the proprietor of a section lays his land out in allotments for simultaneous sale. Second, where he sells, a part only of his section, or conveys it away bit by bit. Thirdly, where a derivative Title is presented for Registration, founded on some former subdivision. In the first case, I propose to give to the selling proprietor, the power of having a properly authenticated map, made in conformity with prescribed Registrations, Such a map, properly authenticated, may be adopted as an Official Map for purposes of Registration, and being duly filed and preserved in the Office, may bereferred to, in like manner as the original map. Persons subdividing their land will find this a convenient practice, relieving them from the more troublesome conditions incident to the second class of cases. In the second class of cases, viz., that of a proprietor selling a sub-divided part of his section, or conveying it away bit by bit,! I propose, that the Registrar shall require on each transaction a properly authenticated map, made in conformity with regulations, showing, not merely the part disposed of, but the part retained, so that the sub-divisional portions of each section may become new integers for purpose of Title and Registration. This will be in accordance with the intention of the 46th Section of the Act which requires the Registrar, in case of transfer of a part of any land, " to deliver to the transferor a fresh certificate containing a description of the land retained by him." By observing these rules, sub-divisional dealings with land will be exactly defined. Each part as it is broken off from its parent section, as well as the remainder of the section, will in every case become a new integer, receiving a now number, by reference to which it may be described. The third case is, one which will at first be common, viz., of Titles, derived from old subdivisions. How in the case of a person presenting for Registration a Title to a part only of an original section? In that case I think no Title should lie Registered to a fractional part of an original section, without the Registrar being supplied with a sufficiently authenticated map of the whole of such section showing exactly the sub-divided portions, such Map to be subject to like conditions as in the former instances. In some cases it may be essential, for enabling the Registrar to judge as to the Title, to collate the parts of a section with each other. This may impose at first some trouble and inconvenience upon the holders of subdivisional parts of sections. But the saving of trouble and confusion will, in the long run, more than compensate for the first sacrifice. By this system of subdivisions we shall continually add to the number of sections on each Registration Map;—for each subdivisional section will require a new distinctive number for purposes of reference. I propose that as these subdivisions take place, each new section shall receive a new number, following in consecutive order, the last number of the old series; —and then, in order to distinguish subdivisional from original sections, I propose to prefix to, or place above the number of the subdivisional sections, the distinguishing number of the original section, of which it forms a part. That will serve as a never failing clue, leading up through any series of subdivisions, to the original section. Thus if, in a Map containing sections numbered up to 2019, section No. 68 be subdivided, say into 3 parts, such new parts will be numbered respectively, say 2020, 2021 and 2022. Then I propose to place over such new numbers the original number 68 thus, -j-gf T , and t%§t, the upper number in all cases indicating the original section. Then again, if section 2022 be subdivided, say into two or any number of parts, such new parts will receive new consecutive numbers; —the number 2022 will be the subdivisional mark. This process may be continued ad infinitum. This mode of indicating subdivisional sections appears to me preferable to expressing them in the form of fractions of the original number, f As this process goes on there will grow up a mass of subdivisional Maps. Each subdivision and each alteration of subdivision will in fact require a new subdivisional Map. I proposo that these Maps should be kept in files, a separate file being appropriated to each original Map. They should also be numbered, in order as they come in. An index referring to such numbers will be an easy guide to them. b In course of time they will accumulate. To avoid inconvenience from this cause, I propose from time to time that the Registration Maps shall be recompiled, embodying the subdivisions in lieu of the original sections, f As regards corrections of erroneous surveys, I propose to adopt a like plan of filing th,® corrected surveys, keeping a separate file for each Registration Map indexed and numbered.
Remedies proposed.
Subdivisional Maps.
Reference to subdivisional sections.
Files to be kept- oi Subdivisional Maps.
Maps to be from time to time recompiled.
Files to be kept of corrected Surveys,
LAND REGISTTRY ACT, 18G0. ■ Incases of correction, the corrected sections will receive fresh numbers; the old numbers being •prefixed, by way of reference, in the same way as in the case of subdivisions; —So that when entries are.made on the Register, referring to corrected surveys, the reference wall .be to such new numbers. V. Registration maps are in course of preparation by the Provincial Governments of Auckland, Nelson, Wellington, Canterbury, and Otago, I have received from the Provincial Governments of those Provinces the utmost courtesy and assistance. I have had no opportunity of personally communicating with the Provincial Governments of New Plymouth, Hawkes Bay and Marlborough. They will no doubt be equally ready to forward the object in view. The time required to complete the Maps may be assumed at about six months or a little more, from the commencement of the work. Of course this will depend on the quantity of work and the degree of activity used in the respective Provinces. In Canterbury and Otago I anticipate .that maps will be ready, say, about July or August. In Auckland the Chief Surveyor promises -to supply in about two months, maps of the Town of Auckland and the suburban districts. VI. The charge of these maps it is understood will be local, —each Province will pay for its own, charging the amount against the Survey Department. I may add that this only represents an expence which should have been incurred long ago. The charge on each Province may be estimated at from £300 to £500. I do not doubt the readiness of the Provincial Governments in this matter; but, I submit that it will be desirable to make specific provision, in the Estimates of the General Government in the ensuing Session, for the requisite expenditure, as a " local" charge. VII. As the maps of Auckland and the suburbs will be so soon ready, I recommend that the Act be brought into operation in those districts first. There will be advantage in thus testing the new .system, before applying it generally. Experience will no doubt suggest alterations and improvements. Suitable Buildings will be required for which also provision should be made in the General Estimates. I venture here to draw the attention of ths Government to the necessity of providing proper Record offices throughout the Colony. I think there should be such an office in each Province. At present, all the public records are exposed to great and daily risk of fire. It will in truth be ■impossible to carry into effect the proposed Registration System without providing for the arrangement and safe custody of Documents. As to the office staff required, it is impossible to estimate it with absolute certainty. I propose ;to commence in Auckland with The Registrar-General, .executing for the present the functions of District Registrar. A chief Clerk. A Draughtsman or Surveyor, and say one copying Clerk. But I think provision should he made for extra clerical assistance if wanted. Provision may be made contingently for the other Provinces. VIII. I proceed to explain the proposed course of procedure. I will first point out the Books ■■which I propose should be kept, and the mode of keeping them. The principal Records of the Office will bo the Registers of Proprietors and of Charges. The Act provides, (Section 3,) for the establishment of a Register Office for registering "' The Proprietorship of Land." Section 41 provides " That a separate Register shall be hept of Charges." No other Registers are expressly required by the Act: but Section 59 requires that "An " entry shall be made on the Register identifying the originals or-duplicates of Leases or agree- •" ments for Leases deposited, whereof notice shall be given ;" and .Section 61 requires that the District Registrar shall make "An entry on the Register of Land orCharges as .the case may be, " identifying Inhibitions." The record of Leases and Inhibitions will, in my opinion, be best kept in separate Register Books, referring by number to the Registers of Land and Charges. IX. The first and principal Register will be of Proprietors. The Act requires no specific form ; ef registration, but leaves it to be settled by Regulations of the Governor in Council (Section 71), I »ud by the Registrar-General (Section 74). Considering the importance of this Register, it is desirable that the form of it should be fixed by Regulation, subject to be varied if necessary. The form should be as simple as possible, avoiding unnecessary words. A question has been raised as to using words of description for ] Parcels in addition to delineation by map, and reference to Sections by numbers. My individual opinion is in favour of the utmost possible shortness of description, consistent with exactness and security from error and fraud. Delineation by map, (especially where, as in the vast bulk of eases, the description will merely consist of lines, angles, and measurements,) is so vastly superior to description by words, that I recommend strongly the discontinuance of the latter practice. Where ' the two modes agree, the latter is surplusage; where they differ, (as they sometimes will,) the map, and not the verbal description, will and ought,to bo the guide. Economy of Clerk's labour is, besides, a great object. If the Rules be adopted which I propose, for insuring accurate plans as accompaniments of all dealings with Land for Registration, every transaction will refer by specific number to.a
D—No. 1
Corrected Sections te be fresh numbered.
F Measures taken for I obtaining Registration :■ Maps.
Charge of Registration Maps.
Commencement of Registration.
Buildings.
Record Offices.
Departmental arrangement*.
Course of Procedure, Books.
Register of Proprietora.
Form of Register.
Description of parcels.
D-No. 1
PROPOSED REGULATIONS UNDER THE plan of the Land with a reference to a Registration Map; and this, with the addition of the District, Locality, and contents will, in my opinion, be sufficient. As a safeguard against fraud, every transcript map will be liable to be tested by actual comparison with the original maps and with other transcripts and counterparts, which will serve as a sufficient check and a means of correcting errors. I may perhaps add that, if the present practice of using word-descriptions (sometimes very long) in Crown Grants, were discontinued, a great saving of time, labour, and expense would be obtained. The form for registering the Proprietorship of Land will bo found in Regulation Every such entry will have its plan copied on the opposite leaf or page of the Register, the plan forming, in fact, part of the entry. Every entry will be signed by the District Registrar. As regards notice of Charges, Leases, and Inhibitions, I propose to subjoin to every entry of Proprietorship a Minute referring by number to such Charges, Leases, and Inhibitions. In like manner I propose to subjoin a Minute of the discharge of incumbrances. The entries in the Register will be consecutive in order of date. Each Title will be registered as it comes in, without distinction of locality; but, there being a distinct Register number to each entry, the alphabetical and local Indexes, referring to such Register number, will be a guide to the public in searching the Registers. X. As regards Charges, there are two modes by which an Incumbrancer, having a money claim on Land, may obtain the protection of the Register. Ist. Either by registering his Incumbrance as a Charge, for which specific provision is made by the Register of Charges, or, 2nd, by lodging an Inhibition. The first class is restricted to legal securities created by the registered Proprietor, and directly attaching to the Land, —such as Mortgages, Judgments, and Crown debts. The second class will apply more particularly to derivative and subordinate interests, of an equitable kind, and which, are protected by Rules of equity and the doctrine of notice. Inhibitions, under the now Law, will serve the purpose of notice under the old, —but more effectually. At the same time, a person having a Mortgage or other direct Charge on Land, may, if he pleases, protect his security by Inhibition, as, by English law, a puisne Mortgagee protects himself by notice. In accordance with Section 41 a separate Register of Charges is to be kept. The form of entry of Charge which I propose will be found in Regulation . The entries will be made consecutively, in order of date as they come in. The alphabetical and local Indexes will guide the public in searching this Register. To each entry there will be a Register number to which reference will be made, in the Indexes. XI. In addition to the Registers of Proprietors and of Charges, I propose to keep, A Register of Leases and Agreements, and a Register of Inhibitions. These are not expressly required; but it will be more convenient to register them separately, than to load the principal Registers with details of derivative transactions. Each entry in these supplementary Registers will be consecutively numbered, and the number will be a means of reference. The form of entries which I propose for these supplementary Registers will be found in Regulations XII. It will be necessary that the entries in the Registers should be kept carefully, and as free as possible from obliteration or alteration. It is therefore desirable that there should be a Book of Primary Entry. For this purpose I propose that the District Registrar shall keep a Journal, in which shall be entered consecutively, as they occur, all transactions which are to be recorded in the respective Registers. It will be convenient for purposes of Reference that the entries in this Journal should be numbered consecut vely, and the Journal number noted in the margin of each entry in the Register. The entries in the Registers will be transcripts from the Journal, except that it will not, I think, be necessary to copy Plans into the Journal. It will be the business of the Registrar carefully to examine and correct the Journal, so that Clerks may transcribe the entries neatly and accurately into the Registers. XIII. Minutes must be kept daily, from which the Journal may be compiled. For this purpose there must be a Book, in which to enter all particulars requisite for preparing the Register entries. These Minutes will be rough notes, which need not be in any exact form, care only being taken to record every essential particular of the various transactions. The process then will be this :—First, the District Registrar, w r ith the assistance of his chief Clerk, will make full Minutes in the Minute Book. From these, the Journal will be compiled, under direction of the chief Clerk, and will be examined by the Registrar. From the Jdurnal, the entries will be carried off' to the respective Registers. The Registrar will be responsible for the accuracy of the whole; and it will, where requisite, be authenticated by his signature. The Books which I have described will form what may be termed the body of the Register. XIV. Indexes are essential to a Register. I am unable to comprehend a system of Registration which does not satisfy this requirement. Having by means of maps and the sectional numbers thereon, and by the numbers on the respective Registers, obtained symbols of reference, I do not foresee any difficulty in keeping perfect Indexes.
Notice of Charges.
Register of Charges.
4 Registers of Leases & Inhibitions,
Journal.
Minute Books.
Indexes.
LAND REGISTRY ACT, 1860. I propose three kinds of Index :— 1. An Index of names, arranged alphabetically. 2. A local Index to each registration map. 3. A Crown Grant Index. The first question is whether there should be distinct Indexes for each Register, i.e., an Index of Proprietors, an Index of Charges, an Index of Leases, and an Index of Inhibitions; or whether a general Index should be kept for the whole, distinguishing the respective Registers by the prefix of some capital letter, as P. for Proprietors, C. for Charges, L. for Leases, and I. for Inhibitions. My own opinion is in favour of the former plan. Though it will multiply Books it will avoid complication. There need only be a Crown Grant Index for proprietors. If hereafter it should be thought best to incorporate the separate Indexes into one, that may be done without difficulty.. XV. The nominal Index will contain the name of the person to whom each Register entry relates, with the number of the entry —thus, Adams John ... ... ■■• ••• ••• ••• 259 Bayley Henry ... ... ••• ••• ••■ ••■ 450 Cheeseman James ... ... ••• ••• ■•• ••• 470 Davis Richard ... ... ••• •■• ••• ••• 582 and so on. The names may be arranged alphabetically year by year or at shorter intervals. As the Indexes become encumbered with names, it may be necessary to rearrange aud compile them. And at longer periods —perhaps every five years—it may be found necessary to open fresh Indexes or to reconstruct the old ones, wiping out references to cancelled or past transactions. XVI. The Local Index will be framed very much upon the same principle as that now in use in the Register Offices. To each Registration Map there will be an Index Book, in which each Section will have its appropriate page or portion of a page; but instead of containing, as the present Index does, elaborate particulars, there will be a reference merely to the Register numbers. It will be superfluous to burden the Index with particulars which may be found on reference to the Register itself. The form of Index will be thus : — Map (City of Auckland). Subsection No. 1. Register Nos. 48, 70, 156, 220, 300, (and so on.) Subsection No. 2. Register Nos. 35, 38, 79, 100, (and so on.) By means of this Index all entries relating to each Section will he brought together under one head.' I have already pointed out the manner in which I propose to provide for cases of subdivision and correction of survey, and to assign to every subdivisional and every corrected Section a new distinctive number of reference. These additional numbers will be from time to time added to the Index, and space must be left accordingly. It is impossible to speculate as to the Number of Sections and Subsections which may thus "■row up in each map district. I do not for my own part anticipate practical inconvenience from this growth of Numbers. If inconvenience should be found in any district, it may be corrected by subdividing the original map. XVII. The Crown Grant Index will not be absolutely needed. But I foresee much convenience by presenting in one view the ramifications of Title, proceeding from each Crown Grant. It need only be kept in respect of the Register of Proprietors. With a view to forming this Index, I propose, in each application to register Title, to require the applicant to specify the Crown Grant relating to the land, and its Number. I have caused an Index to be prepared of all the Crown Grants issued within the Colony, including * the Canterbury Association Conveyances. This Index will be a useful Public Record independently of Registration, and will facilitate the work of the District Registrars. Strangers to Titles, seeking to examine the Registers, will thus have three distinct clues :— 1. The names of parties. 2. The locality of the land. 3. Reference to the Crown Grant, giving the root of Title. XVIII. From time to time, as the Register entries are cancelled, upon change of proprietorship and discharge of incumbrances, I propose simultaneously to cancel the corresponding Numbers in the Index, so that the Index will exhibit, at once, the numbers of all subsisting entries, without encumbering a party searching with the examination of cancelled or past transactions. XIX. In addition to the Registers, Journal, Minute Book and Indexes, it will be necessary to keep some Books of minor importance; —for instance, A Book for noting the exact time of receipt of each application. A List of Certificates issued.
D-No 1
Nominal Index.
Local Index.
Index to Subdivisions and Corrections.
Crown Grant Index
Cancelling Index. Number.
Additional Books.
* These are in the nature of Crown Grants.
D—No. 1
PROPOSED REGULATIONS UNDER THE A Fee Book, wmich may contain short particulars of every transaction in respect of which fees may be received. XX, I proceed to consider the actual course of procedure. First, —As to applications to register Title. The goneral provisions in the Act, (Section 20 et seq.,) are easy and clear. The process will, in fact, very little differ from the ordinary practice of conveyancing. Every person who sells or mortgages land is bound to deliver to his Purchaser or Mortgagee, in England, an Abstract, in Ireland copies of his Title Deeds, and to produce them for inspection. The examination of Title by the Registrar will not differ from that of an ordinary conveyancer; only, that under the new system such examination will take place once for all, whereas in England the process is repeated upon every fresh transaction. In Leland the Encumbered Estates Court has partially relieved that country from this great burthen on property. Precautions must be taken against fraud and personation. I propose to adopt a general rule, that* all applicants, if applying in person, and not personally known to the Registrar, shall be identified by some Solicitor of the Supreme Court, —a requirement analogous to that of the Bank of England in cases of Transfer of Stock. I propose that no person, other than Solicitors, shall be admitted to represent absent parties, except in the case of Agents or Attornies appointed by power of Attorney, under seal duly verified. Where, under the 18th Section, application shall be made to register Title, subject to specified Incumbrances, I propose to protect such Incumbrances by Inhibition, and to require the applicant himself to lodge the requisite Inhibitions on behalf of the parties whose interests are to be protected, proceeding in like manner as in the case of ordinary Inhibitions. As regards absentees and dormant claimants, the Act requires (Sec. 23 and 24) notice to bo given, calling on parties to come in to substantiate their claims. By shortening or extending the time of such notices, and enlarging or contracting their circulation, we shall afford more or less opportunity to absentees and dormant claimants to come in and protect themselves. Upon the whole, the balance of reason is, I think, in favour of adopting a short notice, and of not attempting wide or distant circulation. Otherwise, we may practically frustrate by delay the benefits proposed by the new system. The instances will be rare in which wrong will happen. The chances of it will not be greater than under the present Registration Law, if so great. It will be the business of the Registrar to watch jealously for all such possible cases, and the 81st section provides compensation, where wrong may happen to be done by default of the Registrar. But the mere contingency of possible wrong ought not, in my opinion, to be admitted as a cause for frustrating the benefits of the new law. XXI. Upon the Registration of a Title, the Land Certificate issued to the Registered proprietor will, in effect, be a new Title Deed —a kind of new Crown Grant, and to some extent answering its purpose. Provision is made by the 97th section for issuing a new Land Certificate in case tha original be lost, mislaid, or destroyed, but there is no provision for delivering up the old Certificate in cases of transfer. Consistently with the obvious intention of the Act, there ought to be only one Land Certificate in use at a time. The possession of such Land Certificate will then be prima facie evidence of ownership, on which unregistered transactions may be based. Proprietors may and will deal with their land, by unregistered instruments, as they do now; and for this purpose will require to have in their possession some formal evidence of ownership. Their Crown Grant at present answers the purpose. The Land Certificate should do the same. I would point out the difference between the Land Certificate (issued under section 48,) which is an official Certificate of proprietorship, of the person named therein, —a sort of credential of ownership, which the owner may use as a voucher of Title, in his dealings with the land, —and an official Certificate of the state of Title, under the 70th section. The Land Certificate, in effect, certifies that A. B. is the proprietor of certain land. The Certificate of the state of Title vouches the fact that on a certain day, such was the state of the Title to the land—an instrument only vouching the state of the Title on the day of the date, — useful for purposes of evidence, but not otherwise available as a symbol of ownership. XXIL The 34th section requires, that where, on the first Registration of land, notice of incumbrances has been entered on the Register, the Registrar shall on the discharge of such incumbrances enter a Memorandum of such discharge on the Register. A like entry is required to be made on the discharge of Incumbrances under section 40. Sections 72 and 74 require inhibitions, when discharged, to be " cancelled" on the Register. I propose, in all these cases, to record the discharge of incumbrances, (including under that term the satisfaction of charges, the surrender and determination of Leases, and the cancelling of inhibitions), by a Memorandum across the Register entries, either written or stamped, and by subjoining a note thereof, in the Register of proprietors, at the foot of the entry of Proprietorship. XXIII. The 35th and following sections enact that, " when the Registered proprietor of any land shall charge the same" by way of Mortgage or otherwise, provisions shall be made for registering such charges. It does not appear to me clear, what are included under the term " charges made by " a Registered proprietor." It will, I think, be considered, that the words should be construed
Course of Procedure. Applications to register Title.
Applicants how identified.
Protection of Incumbrances, under sec. 18.
Notices, $c.
Land Certificate.
Discharge of Incumbrances under Sec. 34.
Charges.
Who may make them.
LAND REGISTRARY ACT, 1860. widely, so as to admit the largest possible class to the benefit of the Register. All monetary incumbrances created either by the direct act, or by sufferance of the Registered proprietor, will, in my opinion, belong to this class. The ordinary kind of charge is that of Morto-age; but Grants of Annuity, equitable agreements, judgments which may be enforced against the land, Crown debts which in their nature bind the lands of the debtor and others of a like kind must, I think, be reasonably considered as included under the term " charges made by a Registered proprietor." Legacies, portions, annuities, or the like, charged by will of a Registered proprietor, appear to me to be also charges " made by a Registered proprietor." To avoid ambiguity, however, it may be desirable in some future Act, to introduce a declaratory clause to this effect. Meantime I propose to act on the construction I have stated. Whatever may be the varieties of incumbrance, the 38th section provides that the remedies shall be such as are contained or implied in the Deed or instrument creating the same. But the mere Registration of a charge will not have the same effect as a Conveyance of the legal Estate. It will not clothe a Mortgagee with the legal Title. The Registered proprietor will, notwithstanding the Registration of a charge, retain the legal Estate in himself under the 33rd section; and, therefore, as it seems to me, actions of trespass, ejectment and replevin must be maintained in his name. No Mortgagee, therefore, under the new law, could enter or enforce payment to himself of the rents and profits of his mortgaged land. His remedy will be by sale. To complete his security there should be power in the Registrar, on the application of the Mortgagee, to appoint a Receiver. Before registering a charge, it must be authenticated to the satisfaction of the Registrar. He •cannot be obliged to register every instrument purporting to bear that character. Deeds may be presented to him manifestly fraudulent or forged, and time ought to bo allowed for enquiry in all cases of suspicion. I have framed Regulations for provisional Registration in snch cases. I assume that the Registrar has power to make provisional Registration, but the Act is not explicit on that point, and should there be a doubt, it will be well to remove such doubt by express legislation. Such a power is, I think, indispensable. On the one hand, charges open to doubt ought not to be Registered without enquiry ; on the other hand, persons seeking to Register them, ought not to be deprived of their priority by a Registrar's possibly erroneous scruples. XXIII. The Act requires that on the deed of charge being delivered to the Registrar, a certificate of charge shall be given to, him in lieu thereof. The Deed will remain in the Registrar's custody. The certificate will be the evidence of proprietorship. The Act is silent as to the delivery up of old certificates in cases of transfer. It will be necessary, however, for the same reasons which apply to land certificates, to require this; and I have framed a Regulation accordingly. XXIV. The Act declares that the proprietor of a charge shall have " the same remedies as are " contained in the deed or instrument creating the same," but does not direct how these remedies are to be applied. It will be necessary by regulations to provide for the district Registrars giving them effect, by making the requisite changes and entries on the Registers. In other respects the remedies of an incumbrancer will be substantially as at present. Thus, a mortgagee exercising his power of sale will execute a Deed of transfer to the purchaser, which Deed of transfer, under the 39th section, will be as effectual as if the mortgagee the were registered proprietor of the land. The Registrar will recognise it as a valid transfer, for the purpose of registering the purchaser's Title. I may here observe that the effect of the Conveyancing Ordinance, (sec. 10) is that every mortgage under that ordinance confers by implication a power of sale. In case of sale under order of the Supreme Court, the District Registrar will give effect to •such order under sec 92. XXV. Sections 41 to 48 inclusive relate to transfers of land and charges. Their general effect may be stated thus, First, as regards the proprietorship of land. A registered proprietor will have the same facilities for dealing with his property as at present. He may so deal with it by registered or unregistered instruments, (see sec. 57) —subject of course to the risk, which all unregistered transactions will be subject to. Every transfer of land, registered or unregistered, will be by Deed and may be the same in form and effect as at present, only that the effect of registration being to purge the Title of all antecedent matter, a jmrchaser from a registered proprietor will be relieved from the onus of looking to past Title. The Deed of transfer will thus be reduced to the simplest and shortest form. Such a form need not exceed in length more than a few lines. The form supplied in the Conveyancing Ordinance, (sec. 10,) will answer the purpose. It will I think be desirable that the Register Office shall supply the public with short forms of transfer; though few persons will, in fact, choose to dispense with legal advice, in cases of selling or buying land. It will be the duty of the office surveyor or draughtsman to see that in the descriptions and plans the regulations are complied.with. The Deed of transfer being executed and delivered up, together with the old land-certificate, the new proprietor will be entered on the register and a now land certificate issued. But a proprietor may (under section 57,) transfer his land by an unregistered Deed; and there may be a derivative Title springing from such transaction, which, before it is readmitted on the register, may require investigation in like manner as an original application. The Act does not expressly provide for this, though it is evidently consistent with the 42nd section.
D—No, 1
Appointment of Receivers.
Provisional Registration of charges.
Certificate of charge.
Remedies of Proprietors of charges.
Transfers.
Forms of Transfer,
D—No. 1
PROPOSED REGULATIONS UNDER THE To obviate doubts as to Titles of this nature being readmitted to registration, without going through the form of registering each intermediate transfer, it may be desirable to introduce a special provision to such effect in any new Act. Pending such registration of Title, parties deriving Title through unregistered Instruments may protect them by inhibition, under section 60. XXVI. As to transfers of undivided shares of land, and of subdivisional portions of sections, one rule appears to me important to observe; viz., that on every break in the proprietorship, whether it be of the land itself, or of undivided shares in the land, new entries should be made in respect of the several parts constituting the entire ownership. The part retained by the original proprietor should be registered afresh, as well as the portion alienated. This will be in accordance with section 46. This will only apply to Land. As regards charges, no transfer can be registered except of the entirety. Charges, in fact, for the purposes of registration are indivisible. Partial and derivative interests in charges will be protected by inhibition under section 60. XXVII. Chapter 9, (sections 49 to 56,) provides for the transmission of land and charges in other ways than by transfer. And first as to transmission, in cases of death. As to charges (which are personal estate) on the death of a proprietor, the right vests of course in his executor or administrator, who will be entitled to be registered in his place, c section 50). This will not alterthe present law; except, that there will no longer be the anomaly, as at present (in the case of a mortgagee dying), of the legal estate in the mortgaged land passing to his heir or devisee, whilst the right to the money vests in the executor or administrator. But when a proprietor of land dies, who shall succeed him? The Act does not designate such successor; it simply provides, that ho shall be the person " who may be proved to the satisfaction of the Registrar, to be the proprietor of the land in his own " right, or to be a fit person capable of protecting and giving effect to the rights of all parties " interested." This is a large power vested in the Registrar; but it is at all events safer than the power given, by the 19th section of the present Ordinance, to an heir at law to defeat the will of a deceased proprietor by a registered conveyance. It will however be proper to limit the Registrar's power by specific regulations. In framing these I have been guided by the following considerations. Every deceased proprietor held, either in his own right, or as trustee. He died either testate or intestate. He left his estate either free from or subject to debts. If testate, his land has been devised either absolutely or subject to particular estates or interests. It will bo the duty of the Registrar to satisfy himself on these points, before determining who is the fit person to be registered as proprietor in place of the deceased. With this object I propose the following Regulations. " Upon any application made to register Title, upon the death of a sole registered proprietor, or of " the survivor of several joint registered proprietors, it shall be the duty of the District Registrar to sa- " tisfy himself, whether the deceased held the land in his own right, or as a trustee, whether he died " testate or intestate, whether he left his estate free from, or subject to debts. If testate he is to " satisfy himself as to the validity of the Will or Codicil of the deceased,-—whether the land w r as " devised by such Will or Codicil absolutely or subject to particular uses, estates, trusts, or interests, or to " charges or special limitations or conditions and who are the devisees and other persons interested " under such Will. If the deceased died intestate, he is to satisfy himself who is his heir at law, " and in case he died leaving his estate subject to debts, thenwho are his creditors. Where any "persons appearing to be interested in the land, shall be infants, he shall satisfy himself who is the " guardian or person entitled to be the guardian of such infants ; in the case of married women, "who are their husbands ; in the case of lunatics, who are their Committees if any ; And of all " other matters in any way material, in his judgement, for determining, who is the fit person to be " registered in the place of the deceased proprietor. All which matters and things he shall fully " report to the Registrar General." XXVIII. Now, as to the matter of those enquiries ? Ist. Was the deceased interested in his own right or as Trustee? If the latter, then the person to succeed should be selected with reference to the trusts to be performed. Difficult questions frequently arise as to the devolution of Trust Estates, and it seems to me to be specially the function of the Supreme Court to determine such questions. I propose therefore in that case, the following Regulation : —■ "Where it shall appear to the satisfaction of the Registrar General, that the deceased " proprietor was Trustee, no person shall be registered as proprietor except upon the order or in " accordance with the opinion of the Supreme Court." XXIX. 2nd. Where the deceased held in his own right the question of testacy or intestacy arises. As to the proof of intestacy, the mode in which it is commonly proved, for purposes of Title, in conveyancing practice is by production of letters of administration. These are granted on proof of intestacy, but such proof is generally of a very loose kind, the mere affidavit of the person applying for administration. I think the proof which may be reasonably required will be included in the following proposed Regulations: —
Transfers of undivided shares & subdivisional sections.
Transmission by descent, &c.
Trustees.
LAND REGISTRARY ACT, 1860. " Before assuming the intestacy of a deceased proprietor, the District Registrar shall require " the production of letters of administration to the deceased, if granted, and the affidavit of the " party applying, to the effect that he or she has made, or caused search to be made, for any Will or " Codicil of the deceased, amongst the papers of the deceased, at his Bankers, if any, at his Agents "or Solicitors, if any, and in all other places where it was likely that a Will or Codicil may have "been deposited; and further that no Will or Codicil has been found, nor has any circumstance " come to the knowledge of the deponent, from which to infer that any Will or Codicil is or has " been in existence; (or, if there has been any Will or Codicil in existence), then that the same has " been destroyed (setting out the facts relating to such destruction) —and generally the party ap- " plying shall make affidavit that he or she verily believes that there is no Will or Codicil of the " deceased in existence. The District Registrar shall also require any corroborative proof of " intestacy as to him may seem fit." XXX. 3rd. Did the deceased leave his estate free from, or subject to debts? Besides liabilities by speciality, the real Estate of a deceased is, under certain conditions liable generally for the payment of debts. 1 Wm. 4, c. 47; 3& 4 Wm. 4, c. 104; 2& 3 Vie, c. 60; 11 & 12 Vie, c. 87; (extended to the Colony by the English Acts Act, 1854) 7 & 8 Vie, c. 113; (extended to the Colony by the English Acts Act, 1855, The Absent Debtors Act, 1858, Sec. 12, and The Real Estate Administration Act, 1860, also affect the real Estates of persons dying out of the Colony. Creditors are in my opinion " parties interested" whose rights should be protected, more especially considering the increased facility which will be given under the new law for the transfer of land. Two things are to be avoided —one, the handing over the Estate of the deceased, to a person who will have immediate power to dissipate it, without securing the interests of persons having rightful claims; —the other tying up an estate from its legitimate owner on the suggestion of merely possible claims. It appears to me, that the rights of creditors should be secured by inhibition, and that whenever application is made to register the Title of a deceased proprietor, the Registrar should advertise for creditors to come in before a day fixed and prove their debts. Such an advertisement for three successive weeks in some local Newspaper of the Province where the Land is, will be sufficient. Creditors may come in accordingly and prove their debts, and in respect of debts so proved, inhibitions may be lodged in proper order of priority. XXXI. If the deceased died Testate, what Proof shall be required of the Will and its validity? A probate or authenticated copy may be used. If a Will has been proved, and probate or administration with-Will-annexed has been granted by a competent Court, it must be taken for granted, that the Will was proved to the satisfaction of that Court, and additional proof may be dispensed with. If the Will be an original one, the question arises as to the proof which should be required before admitting the Title founded on it to Registration. I think the following Regulations will meet the requirements of the case. " Where a Will or a Codicil shall have been proved in some competent Court, the probate " exemplification or office copy of such Will or Codicil may be admitted as evidence of such Will ■" or Codicil for purposes of Registration, with such corroborative proof, if any, as the District "Registrar shall require. " Every such original Will probate or office copy shall be deposited with the District " Registrar, and shall be properly numbered for reference, and kept in some proper place of safe " custody." " Where an original Will or Codicil shall be produced for purpose of Registration, the District " Registrar shall require proof thereof by at least one of the witnesses, if resident within the District; "or such other proof as would be required of Wills or Codicils in Courts of Equity." By the sth and 6th William IV., c 62, sec. 15, made applicable to the Colony by the Conveyancing Ordinance, J. 11, the proof of Wills, in contention suits, may be by declaration of an attesting witness, certified under the signature and seal of a Justice of the Peace, &c A less strict mode of proof would seem to be consistant with conveyanciong practice. "Provided, that as regards Wills and Codicils, executed out of the Province, or in case of the " absence of witnesses, the District Registrar may dispense with proof by witnesses of such Will or " Codicil, on receiving evidence to his satisfaction, as to the custody from which such Will or Codicil " came, and such other evidence as may satisfy him of the genuineness and validity of such Will or " Codicil." XXXII. 4th. The Will being proved, the next consideration is as to its effect. Is the land devised absolutely or subject to particular Estates or interests or to charges or under special limitations? I propose to provide that — " If by the Will or Codicil of the deceased Proprietor the Land be devised to any person or ' persons absolutely, such person or persons shall be registered as Proprietor or Proprietors in " place of the deceased Proprietor. " If the same be devised to more persons than one as Tenants in common, the Devisee of each " share in common shall be registered as Proprietor in respect of such share. " If such devise shall be subject to charges, which, in the judgment of the District Registrar, ■" should be protected by Inhibition, the Title shall be registered, subject to such Inhibition, which " the District Registrar shall lodge accordingly.
D—No. 1
Creditors.
Wills.
See Daniel, Chancery Pr. p. 705.
Devisees,
D—No 1
PROPOSED REGULATIONS UNDER THE " If the devise be to Trustees, such Trustees shall bo registered as Proprietors, subject to " Inhibition for protecting the rights of all parties interested under the Will or Codicil, which " Inhibition the District Registrar shall lodge accordingly. " If the devise be for particular Estates, or subject to limitations, powers, or conditions, the " Title shall be registered in the name of the devisee for the first estate of freehold, if he shall ap- " pear to the District Registrar a fit person to protect the rights of parties interested under the Will " or Codicil —and if not, then in the name of such other person, as shall appear so fit in the judg- " ment of the District Registrar : subject to Inhibition for protecting the rights of all parties " interested under the Will or Codicil, which Inhibition the District Registrar shall lodge accordingly. XXXIII. The following Regulations apply geneially : — " The District Registrar shall not make any entry, in the case of transfer of Title on " the death of a deceased Proprietor, until he shall have first transmitted full particulars of the whole " case to the Registrar-General, who may direct the District Registrar what entries to make ; " and the District Registrar shall in all things conform to such directions of the Registrar-General. " When an infant shall be entitled to be registered as Proprietor in the last mentioned cases, " the guardian, or person entitled to be guardian, of such infant may be registered in his or her " place, subject to an Inhibition for protecting the rights of such infant, which Inhibition the " District Registrar shall lodge accordingly. " Where a married woman shall be entitled to be registered as Proprietor, in the last mentioned " cases, the husband of such married woman may be joined on the Register with his wife as co- " Proprietor, in right of his wife : subject to the conditions and regulations applicable to the " Registration of a husband, in right of his wife. " Where the person, entitled to be registered as Proprietor, shall appear to the District Re- " gistrar to be an idiot or lunatic, the District Registrar may register the Committee of such idiot " or lunatic as Proprietor in his or her place : subject to Inhibition for protecting the rights of " such idiot or lunatic, which Inhibition the District Registrar shall lodge accordingly." XXXIV. In cases of intestacy, the proof of Heirship must be according to the usual rules of evidence, only that hearsay evidence must be admitted freely in proof of Pedigree. I propose that " Where, upon the application of any person to register the Title to land of a deceased pro- " prietor, it shall appear to the satisfaction of the District Registrar that the deceased proprietor " died intestate, the District-Registrar shall cause an advertisement to be inserted in some News- " paper circulating in the Province, calling on persons to come in and establish their claims as Heir " or Heirs at Law of the deceased ; and he shall, in such advertisement, specify a day and time and " place for hearing and determining such claims; at which time and place he shall examine such " claims, and shall hear any parties then present, tendering evidence or information in reference " thereto, or to the Heirship of the deceased ; and he may from time to time adjourn such hearing; " and he shall ascertain, to his satisfaction, the Heirship to the deceased ; and shall compile or cause " to be compiled a proper Pedigree to . the deceased, showing such Heirship, and the degree of " consanguinity to the deceased ; and shall transmit the same with the verifications thereof to the " Registrar-General. XXXV. " Where Land has descended in co-parcenary the co-parceners shall be respectively " registered as Proprietors in respect of their undivided shares." XXXVI. Section 52 provides for the case of Bankruptcy and Insolvency. At present there is no Bankruptcy or Insolvency Law, in force within the Colony. When any such Law shall be made, Regulations may be made accordingly. XXXVII. Sections 53 and 54 relate to Married Women. The obvious intention of the Act is to give to a husband the same interest in and power over his wife's estate which he has under the existing Law. The term " Co-proprietor" is used to express the unity of interest of husband and wife, in right of the wife, during their joint lives. On the death of the husband, it is provided by the Act, that the original Registry of the wife shall revive ; but no provision is made for the case of the wife dying, leaving the husband surviving. The Act appears to me to require amendment in this respect. It should provide that on the death of the wife, leaving the husband surviving, the husband's name shall be removed, and the Title shall be registered in like manner as on the death of a Proprietor, under the 49th Section, viz., in the name of some fit person capable of protecting and giving effect to the rights of all parties interested. The husband may bo one of these parties, as Tenant by the curtesy, and as such his rights may be protected by Inhibition ; but he may, or may not, be the fit person to protect the rights of other parties interested in the inheritance. The practice as to ascertaining the wife's assent to the disposal of Joint Estate should, I think, be assimilatsd to that of England. I propose, therefore, the following Regulation, founded on the Rules of the Court of Common Pleas, Hilary Term, 1843 :— " Upon examining a married woman as to her assent to any disposition of Land whereof, she " and her husband are registered as co-proprietors, it shall be the duty of the District Registrar to " explain to her, her rights in the Land, and the effect of the proposed disposition ; and he shall " enquire whether she intends to give up her interest in the estate to be passed ; and he shall " make a record of her answer thereto ; and where any such married woman, in answer to such " enquiry shall declare that she intends to give up her interest without any provision, the District " Registrar shall satisfy himself of the truth of such declaration ; and where any provision has " been agreed to be made, the District Registrar shall satisfy himself that the same has been made;
General Regulations.
Descent.
Coparceners.
Bankruptcy or Insolvency.
Married Women.
LAND REGISTRY ACT, 1860. •" and he shall record the particulars thereof; and he shall not proceed with the proposed "" Registration, until he shall be satisfied as to the foregoing particulars." It will be expedient to note, on the Register, the day on which the Husband's name is added in the Register. XXXVIII. Two classes of interests in land are alone made direct subjects of Registration, viz.:—■ 1. Simple undivided proprietorships of land; 2. Charges thereon, created by a Registered proprietor of Land. All other rights and interests are simply saved or protected. And first The Act itself provides by Sec 19, that 1. Rights of way, watercourses, rights of water, and other easements; 2. Leases or agreements for leases for any term not exceeding 7 years, in eases where there is occupation under such leases or agreements, shall not be deemed incumbrances on the land, and the land shall remain subject to them. Registration will not affect these interests. XXXIX. Without defining exactly the term easement, many qualified modes of enjoying land and its profits will not come within that term ; for instance, rights of pasture, mining, fishery and the like. All such rights therefore, when granted away from the inheritance, will require to be expressly protected by inhibition unless they be granted by lease whereof notice is registered or by " lease or agreement for less than seven years coupled with actual occupation."* XXXIXb. The Act is silent as to the Registrar's right of investigating the Title of parties lodging notices of leases. But such a right appears to me necessarily implied. There may be ground for ssuspecting their validity. Pending investigation it may be necessary to register the notice provisionally. I have framed Regulations to this effect. If there be a doubt as to the Registrar's power of provisional registration, that doubt should I think be removed by express enactment. XL. Section 58 provides that " notice of any lease or agreement for a lease of registered •" land made subsequent to the last transfer of the land" may be registered. This must be limited to leases &c, made by registered proprietors. But leases may be made by equitable owners. In such cases the lessees may protect themselves by inhibition. XLI. No provision is made by the Act for recording the surrender or other determination of a lease. I suggest the expediency of making express provision in anew Act to the following effect: " When any lease or agreement for lease, whereof notice is registered, shall be surrendered or " otherwise determined, the District Registrar shall, upon proof thereof to his satisfaction, cause the " entry of such notice upon the Register to be cancelled, by writing across the same a minute " indicating such surrender or other determination." XLII. It will he useful to consider the precise relation in which registered lessees will stand to registered proprietors, and their remedies against the land. The Act does not expressly declare that Leases, whereof notice is registered, shall be valid in law as against registered proprietors. But the 58th Section enacts that " where such notice is registered, every registered " proprietor and every person deriving Title through him except proprietors of charges, registered " prior to the notice, shall be deemed to be affected with notice of such lease or agreement." The intention is obviously not merely to give to such lessees a remedy in equity, but to preserve their legal title, and to secure to registered leases their full legal operation as against registered Proprietors and all persons deriving title through them except in respect of charges antecedent. If there should be doubt on this point, it will be well to remove such doubt by express enactment. By a different construction, no lease for more than seven years could carry with it the incidents of legal title. A lessee's remedy would only be in equity, and he would be obliged to use the name •of the Proprietor of the land in actions respecting his holding. This would be inconvenient and might to some extent prejudice the value of leasehold interests. XLIII. I come now to that wide class of interests which will require to be protected by ] Inhibition. The 57th Section gives power to any person having a sufficient estate or interest in or power over registered land by unregistered instruments to create therein the same estates and interests as he might create if the land were not registered. Parties claiming under such unregistered instruments may protect the same by notice (in the case of leases) or generally by Inhibition. Section 60 gives to any person who shall, subsequent to the last transfer ■of the land on the Register, become interested in any land or charge " Power by Inhibition to " prevent any dealing with the land by the registered Proprietor to the prejudice of the persons " so interested but no further or otherwise."
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Unregistered dispositions & the protection thereof.
Profits, c. g., Mines, Fisheries, &c.
Leases.
Equitable Leases.
Surrender of Leases.
Relation between Lessees & Proprietors.
Inhibitions.
* Note.—As actual occupation is essential to protect leases or agreements for less than seven years, such a lease or agreement, without actual occupation, as an interesse termini, or a reversionary lease, will require either to be registered or protected by inhibition.
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PROPOSED REGULATIONS UNDER THE XLIV. The first question is, Who can lodge an Inhibition?—lst, under Section 57, all' persons who may acquire rights under unregistered instruments. 2nd, under Section 60, all pftrsons who may become interested in any land or charge subsequent to the last transfer. Broadly, the Act intends and will no doubt be so construed as to give to all persons acquiring an interest of any kind in any land or charge subsequent to the last transfer of proprietorship— power to protect such interest by Inhibition. The registered Proprietor, being invested with absolute ownership, free from antecedent claims, will become the root from which new rights will spring—and the object is, to enable such new rights, with all derivative interests growing out of them, to be protected against alienation by the registered Proprietor. It may be questioned whether the Act is sufficiently explicit as to the persons by whom Inhibitions may be lodged. It will, I think, be desirable to define this more exactly. I propose that the following Clause should be introduced into a new Act, extending not merely to the case of Inhibition but to applications and other proceedings of all kinds under the Act. 1. " All applications, Inhibitions, and proceedings may be made instituted and taken " either by parties themselves on their own behalf, or by their representatives, hereafter "mentioned, that is to say:— " 1. By Agents or Attornies expressly authorized in that behalf by deed or tetter of Attorney " duly verified. " Or by Barristers or Solicitors of the Supreme Court authorized in writing in that behalf.. " Or by the guardians or persons entitled to be guardians of infants on behalf of such infants. " Or by Committees of idiots or lunatics on behalf of such idiots or lunatics. " Or by husbands on behalf of their wives. '•' Or by any one or more of a class of creditors, legatees, or others on behalf of others of the same class. " Or by any one or more person or persons claiming under any Deed or Will on behalf of " any person or persons claiming under the same Deed or Will. " Or by any Trustee on behalf of his Co-Trustees; " Or by any Trustee or Trustees on behalf of his cestuique-trusts, or any of them. " Or by any Executor or Administrator on behalf of himself and his Co-Executors or Co- " Administrators. " Or by any Executor or Executors Administrator or Administrators on behalf of any Creditors " or persons interested in the Will or Estate of a deceased person. " Provided that in all cases of Application, Inhibition, or other proceedings by Representa- " fives as last aforesaid, such Representatives shall establish their right to appear and act a* " such to the satisfaction of the District Registrar. 2. " Inhibitions may be lodged by Registered Proprietors on behalf of any person or persons " whomsoever. " Or by any District Registrar on behalf of any person or persons whomsoever in the follow- " ing cases, viz. : — " 1. By direction of the Supreme Court. " 2. By direction of the Registrar-General. "3. In airy case expressly authorized or where it shall appear to the District " Registrar requisite for the protection of the rights of married women, infants, " idiots or lunatics, or of persons absent from the Province or otherwise unable " to protect their own lights." XLV. What may be protected by Inhibition ? Every species of interest in or claim upon land, is meant to be provided for, which may have grown up subsequent to the last transfer. If any doubt should exist whether the words of the Act are sufficiently large, it should be removed by legislation. It may possibly be questioned whether a person having aright of mining, or an annuity, or who is entitled to specific performance of a contract, or to the benefit of a covenant running with the land, or to the proceeds of laud held in trust for sale, has an " Estate or interest in the land or ' charge enabling him. to lodge an Inhibition " ? To avoid all doubt on this point, I suggest a clause as follows :— " For avoiding doubts as to the rights and interests in respect of which inhibitions may be "lodged, Be it enacted and declared, That the Attorney-General on behalf of her Majesty, and any " other person having, or claiming any right or interest to or in any easement, profit, privilege, or " emolument in, over, through, or out of; any land, or having or claiming any estate, right, title, " use, trust, or interest at law or in equity, in or to any land or charge, or having or claiming the " benefit of any covenant, or any right of entry into, or of action or suit respecting any land or "charge, or having any claim or demand on or having or claiming any power over any land or " charge, whether such claim right or interest be in possession or reversion, absolute or " conditional, vested or contingent, may lodge an inhibition in respect of the land or charge " affected thereby according to the provisions of the said Act." XLVI. What will be the effect of inhibition ? By section 60, the effect given to inhibition is " to prevent any dealing with the land by the " registered proprietor, to the prejudice of the inhibitor, but not further or otherwise." But the intention of the Act, and, as I apprehend, its effect, goes beyond this. The registered proprietor is, in fact, the holder of the legal estate, and thus stands in relation to parties having interests protected by inhibition, as the holder of a legal estate, with notice, stands in relation to parties of
Persons entitled to lodge Inhibitions.
What may be protected by Inhibition.
Effect of Inhibition.
LAND REGISTRY ACT, 1860. whose interests he has notice; and this is necessary, in order perfectly to secure equitable rights For, to secure these rights, it is not sufficient merely to prevent alienation by the registered proprietor Occasions arise where the holder of the legal estate must allow his name to be used in actions at law, on behalf of persons holding equitable rights. If ho refuses to do so, it is at hit peril. The registered proprietor must stand in like case. To remove doubts on this point, I propose a declaratory enactment to this effect :— * The lodging of an inhibition shall bo deemed to be notice to all the world of the claim, right, " or interest protected thereby, and shall have the same effect as against the land (or, in the case of "a charge, against such charge) and against the proprietor of such land (or charge) and all other "persons whomsoever, as expiess notice has by the rules of equity; and the registered proprietor " shall in all such cases stand in relation to parties having su«h claims, rights, or interests as the " holder of the legal estate, having express notice, and in all cases of intended transfers, notice " thereof shall be given to Inhibitors." All interests thus protected by inhibition will be in the nature of equitable interests, for which the remedy will be by application to the Supreme Court. The inhibition meantime will prevent the disposal of the land, " to the prejudice of the person interested." Subject and without prejudice to registered Incumbrances, including Inhibitions the Registered Proprietor will retain the right of disposal. The intention of the Act is, not that Inhibitions shall be an absolute impediment to Transfer, but that without prejudice to the interests of Inhibitors, Proprietors may subject thereto dispose of their land or charges. To prevent doubt, however, on this point, it will, I think, be desirable to make express provision to the following effect: — " In all cases where a Registered Proprietor of any Land or charge shall transfer the same, " subject to subsisting Incumbrances, including Inhibitions, an entry shall be made in the " Register as against the title of the new proprietor, to the effect that such Incumbrances and " Inhibitions are continued, and every Inhibition so continued shall have the same effect, as against " the new proprietor, and all persons claiming from, through or under him, as if the same had been " originally registered against the title of such new Proprietor." It will be better to permit a proprietor thus to dispose of his estate, subject to Incumbrances, than to require him to clear them from the Register before permitting him to transfer. In cases where it may be requisite absolutely to stop the disposal of registered land or charges, an Injunction of the Supreme Court, obtained summarily on Petition, under the 112 th section, will have that effect.* XLVII. -It may be objected, that the unrestricted power of lodging Inhibitions, subject only to the risk of actions for damages under the 65th Section, may be vexatiously used, and ought to be expressly limited. If the effect of inhibition were absolutely to take away the proprietor's power of disposal, there would be ground for such objection, though even in that case, experience, drawn from the analogous practice of Distringas on Stock, would show that the danger of abuse is small. (See Mr. Freshfield's Evidence before the Registration Commissioners, 1857, p. 287, Appendix.) I think, however, it will be desirable to copy the practice of the Bank of England in the case of Distringas, and to require from a party lodging an Inhibition an affidavit in general terms declaring that the party believes himself to have sufficient ground for the proceeding. With this view I propose Regulation 123:— When an Inhibition is lodged, it is reasonable that the Proprietor should have notice thereof, mid be enabled to show cause for its removal. The 64th Section indicates the intention that the District Registrar shall exercise a power of this kind. I propose to require therefore, that every person lodging an Inhibition shall at the same time serve a copy on the Registered Proprietor; —transmission by post to the Proprietor's jikice of address, to be good service. Upon objection made, the District Registrar will be empowered by the 64th Section to cancel the Inhibition, if it be shown to his satisfaction that " the interests of the Inhibitor have ceased or " that such interests are not such in respect of which equity would interpose." XLVIII. As regards the procedure of the Supreme Court, I do not feel myself at liberty to suggest Regulations. Section 71 excepts from the Regulations to be made by the Governor in ! Council all Rules and Orders authorised to be made by the Judges of the Supreme Court. Section 94 authorises the Judges to make Regulations touching appeals under Section 103. Section 113 authorises them to make rules generally for regulating proceedings in the Supreme Court under the Act. The functions vested by the Act in the Supreme Court are —■ Ist. By Section 89, (Sub-section 3:) "A Judge of the Supreme Court may, upon the application "of any Registered Proprietor for the time being, or of any person beneficially iuterested in the
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Disposal of land and charges, subject to registered Incumbrances
Risk of vexatious Inhibitions.
Registrar's power of cancelling Inhibitions.
See Regulation 119.
Procedure of the Supreme Court. Sub. sec. -i.
Note. —We must distinguish between two kinds of interest, which will be the subject of Inhibition; —one, where the object is merely to affect the Title with notice of the right. —as a right of way. or mining, or an annuity issuing out of land, or a pecuniary charge bearing interest, or a Covenant running with the land. In such cases (the land remaining subject to the claim) it would be against the Intention of the parties, and public convenience, to hinder the Proprietor's right of disposal, farther than by keeping the liability ou the land alive. 13ut there are cases, in which any disposal of he land, would destroy, or greatly prejudice the right of the Inhibitor; —as in the case of a purchaser claiming specificperforrca ice of a contract or, an equitable owner in fee. In such cases, the Inhibitor should have the power of intert posing to prevent the transfer. I think it will be sufficient if, in all c*ses, notice of an intended transfer be given to Inhibitors. Upon such notice parties may apply summarily to the Supreme Court for an Injunction.
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PROPOSED REGULATIONS UNDER THE " land or charge, cause a Transfer to be made to any new Proprietor or Proprietors, solely or "jointly, with or in the place of any existing Proprietor, or may make such order in the premises as "such Judge thinks just." 2nd. By Section 100: In Suits for specific performances, the Court may " require parties " having registered interests to appear, and may make a binding order on them in such suits." 3rd. By Section 103: The Court may hear and determine appeals from the District Registrar. 4th. Sections 106, 107, 108, 108, 109, and 110, gives the Supreme Court jurisdiction upon cases or issues directed from the Registrar-General. sth. Sectioalll, gives the Supreme Court jurisdiction over the Registrationofficers. 6th. By Section 112: "Parties claiming any Estate or Interest" [it may be well to extend these words to the classes entitled to lodge Inhibitions; see previous observations] "in any Land "or Charge affected by Registration, may apply by Petition, in a summary way, to the Supreme " Court, which is authorised to hear and determine the same, either with or without notice, to the " parties interested, and may direct enquiries, declare the rights of such parties, and make such " Orders and Decrees as shall appear requisite for giving effect to such rights, so far as the same " shall not expressly conflict with the provisions of the Act. The Registrar-General and District " Registrars are bonnd to obey and give effect to such Orders and Decrees." The effect of these provisions is to make the Supreme Court, practically, a Landed Estates Court, with wide and summary jurisdiction. With this view, the Court is empowered to proceed. upon the application of any party whose right may be affected by Registration, upon Petition, in a summary way, with or without notice to other parties. The general rule of Equity is, that no Decree or Order can be made affecting rights in which others are interested without the presence of all parties before the Court. It is from this mainly that the cumbrous nature of Equity Practice has arisen. The English Act —15 & 16 Vie, c. 86—has altogether changed the practice of Courts of Equity in this respect, by dispensing in a variety of cases with parties to a suit. The present Act extends the principle of that Act. The powers so created are, no doubt, extensive and and summary,—but a consideration of the peculiar circumstances of the Colony will satisfy any person of the necessity there is for a provision of this nature. The difficulty of reaching persons at a distance would otherwise practically frustrate the jurisdiction of the Court. Whatever Claims or Interests persons may have in Land, or Charges on Land, the Act thus supplies them with a swift and sure remedy, wheresoever such Claims or Interests may be affected by Registration. They may petition the Supreme Court in a summary way. Upon the hearing, with or without the presence of other parties, the Court may make an Order suitable to the circumstances, for example:— Ist. For an Injunction to Restrain the Disposal of any Land or Charge. 2nd. That the Proprietorship of the Land or Charge shall bo Transferred. 3rd. That a Charge shall be Registered. 4th. That an Inhibition shall be Lodged. Generally, whatever may be necessary "for giving effect to the rights of parties applying." These orders and decrees the Registrars are bound to obey and give effect to, and they may, of course, be enforced by attachment. The Supreme Court will be the proper judge as to what will be suitable regulations for such procedure. I venture to submit to you the propriety of bringing this under the consideration of the Judges with a view to their framing such regulations accordingly. XLIX. I have stated that the principles governing the disposal of land will not be materially changed by the present law. One important provision should be noticed, qualifying this remark. Section 17 provides that "no transfer or charge of any land granted by the Crown in any " District after the commencement in such District of Registration under the Act shall be valid or " effectual either at law or in equity unless the grantee or his heirs shall have been first registered " under the Act as the proprietors of the land." The effect of this will bo, to necessitate the Registration of title, under every new Crown Grant; a salutary provision for bringing the Act into practical operation, and preventing the further growth of evils under the present law. But this, added to reasons already existing, appears to me to involve the necessity of changing the practice as regards the issue of Crown Grants. One of the great causes of difficulty of Title in the Colony has been the long interval between the sale of land by the Crown and the issue of the Crown Grant. This is felt particularly in the Southern Provinces. In the last session of the General Assembly a Bill was introduced for remedying this evil. But from the lateness of the period at which it was brought in, it was lost in the Legislative Council. This measure provided a machinery for issuing Crown Grants in the respective Provinces. The Governor was enabled to delegate his function of issuing Crown grants to public officers resident in the Provinces. A special Seal was to be provided for each Province. The Governor was to lay down regulations for the exercise of such delegated powers. A measure of this kind now appears to me imperatively required. There will always exist a necessity for enabling parties to deal with their land so soon as they have purchased it; in many cases a man is obliged to mortgage, the instant ho has bought; the mortgage money being advanced to enable him to purchase. So, transactions take place between
Js,sue cf Crown Grants.
LAND REGISTRARY ACT, 1860. borrower and lender in disregard of the non-issue of the Crown Grant, and difficulties arise which have to be cured by special legislation. The different Registration offices have been from this cause obliged absolutely to set aside the provisions of the Registration Ordinance, which only admitted to Registration, Deeds and Instruments made subsequent to the Crown Grant. It has led to several Legislative Acts of an objectionable kind, the effect of which is, to shift the legal estate retrospectively, so as to validate titles derived through instruments antecedent to the Crown Grant; and it has led to the Registration Amendment Act of last session, by which Deeds are made capable of Registration, without Registration of the Crown Grant. These deviations from true rule were necessitated by circumstances—such necessities are always stronger than law. But now, since every transfer or charge on land made prior to the Registration of the Crown Grant is declared " not to be valid or effectual" there is an imperative necessity for some such measure as that proposed in the last session. The principal objection taken to that measure was, that it took away the control which the General Government ought to exercise over the issue of Crown Grants and removed the guarantee for correctness* supplied by their superintendence. To some extent this no doubt was true, but if the General Government be furnished with copies of the Registration maps, showing all existing Crown Grants, and if they be furnished from time to time with tracings or copies of maps of lands newly granted, and if proper Regulations be made, obliging the Provincial officers to use care and exactness in the preparation of grants, —if, further, the means of correcting surveys be supplied by the Bill for that purpose which I propose, it seems to me that all reasonable precaution will have been taken against errors. Errors there will be occasionally, in the nature of things. Our object must be to minimize them; but after all, we must balance one class of inconveniences against another. My own conviction is, that delay in the issue of Crown Grants is an incalculably greater evil than the risk of error from delegating the power of issuing them, to public officers in the Provinces. L. I have thus called your attention to the principal points which occur to me in reference to bringing into operation of " The Land Registry Act, 1860." I have only to add that the success of the measure will depend mainly on the appointment of qualified persons as District Registrars. I have the honor to be, Sir, Your most obedient Servant, Hbnky Seweix. P.S. —I suggest that effect should be given to the Regulations by an Act of the Assembly, so as to remove all doubts as to their being within the scope of the Governor's powers. In the same Act may be embodied the clauses I propose. H. S.
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PROPOSED REGULATIONS UNDER THE REGULATIONS, UNDER THE LAND REGISTRY ACT, 1860. »
MAPS. 1. Maps of all Crown lands granted or disposed of, arranged in Districts of convenient size, shall be constructed and kept, for the purpose of Registration, in each Registration District. 2. Such Maps shall be termed Registration Maps, and the words " Registration Map" shall be written or marked upon them. 3. From time to time as required, Supplementary Maps shall be constructed of land newly granted, and the sections or allotments newly granted shall be laid off on the original Maps; so that the Registration Maps in use may include all Crown Lands from time to time disposed of. 4. All such Maps shall be constructed under direction of the Registrar General. 5. Every Map shall be signed by the Registrar General. 6. The Maps shall be conveniently named, numbered, or otherwise distinguished, for reference as the Registrar General shall from time to time direct. 7. The Registration Maps of each District shall be deposited with the District Registrar of such District. 8. No alteration in, or addition to such Maps shall be made, except as authorized by the Regulations, or by authority of the Registrar General. 9. In every Registration Map the sections, subsections, or allotments shall be numbered consecutively. SUBDIVISIONAL MAPS. 10. Subdivisional Maps, connected with each Registration Map, shall be kept on separate files, ■conveniently numbered or distinguished for reference. 11 (a). If a proprietor shall subdivide an allotment for sale or transfer, he may cause a subdivisional Map thereof, shewing the proposed subdivisions, to be made and deposited with the District Registrar. 11 (b). He may from time to time, with the consent of the District Registrar, alter any such subdivisions, which may not have been disposed of, by causing a fresh subdivisional Map thereof to be made subject to like conditions. 12. Where application shall be made by a proprietor to register his Title to a subdivided part of an original allotment, the District Registrar shall require a subdivisional Map, to be deposited with him. 13. In cases not otherwise provided for, where a proprietor shall transfer a subdivided part of an original allotment, there shall be deposited with the District Registrar a subdivisional Map, showing the entirety of such section or allotment and the subdivided part thereof. 14. All subdivisional Maps shall be made and authenticated to the satisfaction of the District Registrar, and signed by him; and may be used as Registration Maps; and the subdivisional sections or allotments on such subdivisional Maps shall be numbered respectively so as to distinguish the same for purposes of Registration, and shall be referred to, and indexed as original sections. 15. The Registrar General may from time to time cause the Registration Maps to be newly compiled, for the purpose of embodying therein the subdivisional allotments, distinguished by proper numbers; and such newly compiled Maps, being signed by the Registrar General, may be used as Registration Maps, in lieu of the originals. The Registrar General shall regulate the construction, arrangement and care of the Registration Maps, as he shall think fit. INDEXES. 16. It shall be the duty of the District Registrar to keep in respect of each Register
LAND REGISTRARY ACT, 1860. 1. A nominal Index. 2. A local Index. Nominal Index. 17. The Nominal Index shall contain the names of parties on the register, and shall be compiled :alphabetically. It may be divided into periods or other divisions as the Registrar General shall direct. 18. Against the name of each person in such index shall be entered the number of the entry in the Register relating to such person. Local Index. 19. The Local Index shall be arranged in correspondence with the Registration Maps. 20. A separate Local Index shall be kept in respect of each Principal Map. 21. In the Local Index of each map shall be entered consecutively, the numbers of the allotments contained in such map and in the supplementary, subdivisional and corrected maps connected therewith; and against each such number shall be entered the number of every entry in the register, relating to such allotment. Crown Grant Index. 22. The District Registrar shall also keep a Crown Grant Index, which shall contain in consecutive order the numbers and references to Crown Grants, and against the number and reference of each Crown Grant shall be entered the number of every entry in the register of proprietors relating to land held under such Crown Grant. General Regulation as to Indexes. 23. It shall be the duty of the District Registrars under direction of the Registrar General, from time to time to examine the Indexes and collate the same with the Registers; and to correct •errors found on such examination. ■24. When an error in an Index is corrected, a note shall be made in the Register, denoting the fact that such correction was made by the District Registrar, by authority of the Registrar •General. The fact may be denoted by the District Registrar signing his initials in the margin .opposite the correction. 25. When an entry in a Register is cancelled, the corresponding number of such entry in the Indexes shall be cancelled likewise, by the District Registrar drawing a line through the same and initialing the cancelled number. BOOKS. .26. It shall be.the duty of the District Registrar to keep the following books. 1. A Minute Book for making rough entries of daily proceedings. 2. A Journal for entering fairly a Record, from which entries on ihe Registers, and orders for discharging or cancelling entries, may be transcribed. 3. A Register of Proprietors of Land. 4. A Register of Charges. 5. A Register of Notices of Leases and Agreements for Leases. 6. A Register of Inhibitions. 27. He shall also keep Books for noting applications of all kinds, with the exact times thereof .lists of certificates issued—particulars of fees received—and such other books as the Registrar General shall from time to time direct. Mode op Keeping Minutes. 28. The District Registrar shall keep, in the Minute Book, exact Minutes of his proceedings; and shall note therein all particulars requisite for making up the entries to be transcribed into the Journal and Registers, —the particulars of all applications, claims and objections,—of all Notices, Inhibitions, Orders of the Supreme Court and of the Registrar General,—and generally of all matters whatsoever in any way relating to his proceedings. ,29. Each,entry in the Minute Book relating to each matter or thing shall be made separately.
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PROPOSED REGULATIONS UNDER THE 30. A Transcript of the Minute Book, fairly written, shall be transmitted monthly by theDistrict Registrar to the Registrar General. 31. The entries shall be made day by day, and each day's proceedings shall be signed by the' District Registrar. JOURNAL. 32. The Journal shall be fairly written; and shall be entered up day by day, without delay; — the Journal of each day's proceedings shall be signed'by the District Registrar. No alteration or interlineation shall be made in any Journal without the same being authenticated by the signature or initials in the margin, of the District Registrar; and no such alteration or interlineation shall be made after the Journal shall have been signed by the District Registrar, without the written authority of the Registrar General. 33. The entries in the journal shall be made separately, and shall be numbered consecutively in the margin;—and such journal numbers shall be entered in the margin of the Register, entriesrelating to the same. 34. The Journal entries shall be prepared from the Minutes by the Chief Clerk, under the direction of the District Registrar. 35. The District Registrar shall transmit a copy of the Journal monthly to the Registrar General. Registers. 36. The respective Registers shall he kept by way of consecutive entry, and the respective entries therein shall be distinguished by consecutive numbers, which shall be referred to as the Register numbers. 37. In the margin of each entry shall be entered, by way of reference, the number of the entry in the Journal relating to the same. Application to Register Title. 38. Every person applying to Register a Title to land shall make and subscribe, in Duplicate, an application in the following form:— " I," (or "We," (a) as the case may be,) "the undersigned: " A. 8., of" (add place of abode and description or designation). Or " I, A. 8., as Agent or Attorney for C. D., of," &c. "Do apply, pursuant to the Land Registry Act 1860, to Register the Title to the " (b) following Land, viz., (Here add description of land, specifying the estimated contents, the Parish, Township, County, Province, or other local division in which situate, the number of Allotment, Section, or Sub-section, whether occupied or unoccupied, and if occupied, the name of occupant). " Which land is described in the annexed plan, and is valued for the purpose of the " Assurance Fund at £ (c). The above land is included in the Crown Grant " marked or numbered," (here insert the proper mark or number of reference to the Crown Grant relating to the land). In the case of Land formerly on the Register, and in respect of which application is made to Register the Title anew,) add—" The above land was heretofore Registered in " the name of R. S., of as proprietor." " Annexed is a list marked A. of the Deeds and Documents now deposited, relating to " the Title, copies whereof are also deposited herewith. Annexed also is a list " marked 8., of the names and addresses of all persons entitled to any Estate or " Interest in the land. Official notices referring to this application may be left for " me at" (here specify some known place of address in the same Town in which the Register office is situate). (Where the applicant admits that the land is subject to Incumbrances or Trusts, add) " The land is subject to the following Incumbrances or Trusts (as the case may " be), the rights in respect whereof will be reserved." Here specify the Incumbrances or Trusts reserved. (Signed) A. B. CD. Subjoined to this application shall be a Memorandum, which may be signed by parties interested, if consenting to the application, as follows :
Christian Name and Surname at full length.
Plans to be annexed pursuant to the Regulation.
Value to be inserted pursuant to Regulations.
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LAND REGISTTRY ACT, 1860. " We consent to the above application." " Chas. Johnson, Mortgagee," " Jas. Taylor, Lessee." If the application or consent be made by Attorney, add, " by E. F., of &c. " Attorney for the said (A. B. or " C. D.," as the case may be). 39. Annexed to every such Application and Duplicate shall be a Plan (made to the satisfaction of the District Registrar, and agreeably to Regulations,) of the Land, the Title whereof is proposed to be Registered. Such Plan shall correspond with the Plan on the Registration Map. If the land be part only of an original allotment or section, the Plan shall describe the entire original allotment or section corresponding with the Registration Map, and shall show accurately the measurement, extent, boundaries, and relative position of the land proposed to be Registered, and also the other subdivisions of such original section. 40. A List or Schedule (marked A.,) of Deeds and Documents deposited, shall be annexed to the Application, and a Duplicate of such List or Schedule shall accompany the same. Such List or Schedule shall specify the dates, names of parties, and nature of instruments, and shall be signed by the Applicant. One part of such List or Schedule shall be retained by the District Registrar, the other, after being examined and found correct, shall be signed by the District Registrar and returned to the applicant, with an acknowledgment of receipt. 41. A Schedule (marked 8.,) of persons entitled to any Estate or Interest in the land, shall be annexed to the application, which Schedule may be in the following form : — " List of persons entitled to an Estate or Interest in the land referred to in the annexed " application. " Thomas Smith, Merchant, Auckland, Owner in fee." " Charles Johnson, Grocer, Napier, Mortgagee." "James Taylor, Farmer, Otahuhu, Lessee." (Signed) " A. 8., Applicant." 42. The District Registrar shall sign and give an interim receipt for Documents deposited, to be exchanged for such Documents if returned. 43. The District Registrar shall transmit the copies of Deeds and Documents deposited to, the Registrar General by the earliest convenient opportunity. Such transmission may be by post. 44. Where an application to Register Title shall be made, subject to specified Incumbrances or Trusts, the District Registrar may, if he shall think fit, refuse to proceed with such Registration, until proof shall be made to his satisfaction, that the parties interested in such Incumbrances and Trusts, or any of them, have been apprised of the intention to Register such Title, and until such parties, or any of them, have had opportunity of being heard in opposition to such application. 45. In every case where the rights of parties are reserved, the applicant shall, on behalf of the parties whose rights are to be reserved, lodge Inhibitions in respect of such rights in conformity with the Regulations applicable to Inhibitions, —the effect of which Inhibitions shall be the same as if lodged by the parties themselves. 46. The lodgement of such Inhibitions shall be simultaneous with the Registration of Proprietorship. 47. Within one month after the receipt of an application to register a Title to Land, the District Registrar shall cause a notice, which may be in the following form, to be inserted in some local Newspaper circulated in the District, and shall continue such advertisement three times consecutively in such Newspaper. Notice under Land Registry Act, 1860, "A. 8., of" (add place of abode and description) " having applied to register his Title as Proprietor to the land hereinafter described, viz. :—(Here add a short description of the land specifying the estimated contents, the Section, Parish, District, County, &c, where situate.) " All persons having interests in such land, capable of being " affected by such Registration, are required to lodge their claims, and the evidence in " support thereof, with the District Registrar on or before the day of " and to attend either personally or by attorney before me on the (specify day and " hour and place) for the purpose of establishing their rights." "Dated the day of " G. H, District Registrar." Where more notices than one are to be advertised in the same newspaper, they may be scheduled in a tabular form.
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PROPOSED REGULATIONS UNDER THE 48. The examination and hearing of the application shall be proceeded with, at the time and place specified in such notice. 49. Such examination and hearing may bo continued by adjournment, whereof notice shall bo posted in some conspicuous place in the District Registrar's office. 50. Parties objecting to the application, or claiming interests in the land proposed to be registered, may appear and be heard in person or by their counsel or by attoruies before the District Registrar. 51. All applications (with their respective plans and schedules) shall be numbered consecutively, and shall, as nearly as may be, be heard in the order in which they shall be received. 52. The documents relating to the respective applications shall be kept by themselves, in linen or canvas bags, numbered with numbers corresponding to the number of the application. Register of Proprietors op Land. 53. The form of Register of a Proprietor of Land shall be as follows, subject to be from time to time varied by authority of the Registrar-General : — " On the day of , on the application numbered ( ) " of A. 8., of (add place of residence and designation) "the said A. B. was duly registered as " Proprietor of the Land hereinafter described," (here add description of land, specifying its estimated contents, the Township, Parish, County, District, or other local division where situate, the section, subsection or allotment of which it consists, or of which it forms part, whether occupied or unoccupied, and if occupied the name of the occupant) " a Plan of which land is (annexed or) delineated on the opposite " leaf or page of the Register." (N.B. If the plan be of inconveniently large size, the plan may be on paper annexed.) (Signed) " G. H., " District Registrar-" Subjoined to such entry shall be a Memorandum in the form : —•
"Memorandum of Registered Incumbrances, whether Charges, Leases, or Inhibitions, affecting the above Land, and of the Discharges of such Incumbrances."
54. The following shall be the form of Land Certificate, which shall be issued on parchment or such other material as the Registrar General may from time to time direct: — " Land Registry Act, 1860. " District of on the day of " the following entry was made in the Register of proprietors of land, for the " District of (Here copy entry, verbatim). " John E. Smith, " District Registrar." 55. No Transfer of Proprietorship shall be made without delivery up of the Land Certificate.
[AEGES. Leases am i Agree: [ENTS. Inhi: ilTIONS. to "Sj 10 « o d 'E3 CO 3 g O t£ 33 i a $ o "K ? 'So §b 33 CD 'St c M o 6 3 si o I 8'5b i« g> co 15 CD *-• _: CD T3 T3 CD (3 g II SB a) fi'O 43 CD CO O m 8'5b la 13 60 CO § o 'C -u fl § O m 8'5b P S3 a 33 o 5 § O o O rn g'Sl f.M 55 200 J. E. Smith 21st Dec. 1862. J. E. Smith 68 J. E. Smith 4th July 1861. J. E. Smith 79 J. E. Smith 4th July 1862. J.E.Smith 320 J. E. Smith 140 J.E. Smith 84 J. E. Smith
LAND REGISTRY ACT, 1860. Discharge of Incumbrances. 56. Before Discharging Incumbrances from the Register the District Registrar shall require such proof of Discharge as would be, required as evidence thereof in a Court of Law. Upon such proof being made to the satisfaction of the District Registrar he shall cancel the entries relating thereto by writing across the same a minute indicating such Discharge. He shall also cancel in the Index, the Numbers relating to such entries and shall subjoin a note of such Discharge in the Memorandum at the foot of the Proprietor's Register. Registry of Charges. 57. All Charges made by Registered Proprietors may be registered subject to the following Regulations,— 58. Every person applying to register a Charge shall fill up and subscribe the following form which may be altered from time to time by the Registrar General. " I, A.8., of do apply to register the Charge made by the (Deed or Instru- " ment) deposited herewith, the particulars of which Charge are as follows :— " Date of Instrument. " Name of Registered Proprietor of Land. " Register No. of ditto. " In whose favor charge made. " Amount secured. " Day of payment. " Rate of Interest. " Annexed is a plan of the Land charged." Signed "A.8." If by Attorney, then A.B. on behalf of CD. of Annexed to such application shall be a Plan of the Land charged, agreeing with the Registration Map and with these Regulations. 59. Every Charge shall be deposited with the District Registrar either by the Proprietor of the Land or by the person in whose favor the Charge is made, or one of such persons or by some person interested therein or by some Barrister, Attorney, or Solicitor, on behalf of such person or persons. 60. Every Charge shall be Registered in the Register of Charges, in the order in which the »amo shall be deposited. 61. All Charges shall be Numbered consecutively, in the order respectively in which they shall he received,— tnd shall immediately, on receipt thereof by the District Registrar, be respectively Stamped or Marked with such Numbers. 62. Upon receipt of every such Charge, the District Registrar shall Sign and Deliver to the Depositors a Receipt, which may be in the following form, but which form may be from time to time varied by authority of the Registrar-General: —■ " Received on the day of , at the hour of , " from A. 8., of , a Charge, numbered [specifying the Number of " such Charge]. " Dated this day of " J. E. Smith, District Registrar of —Upon the receipt of such Charge Notice thereof shall be given by the District Registrar to the Proprietor of the Land charged. 63. Judgments, Crown Debts, Extents, and Acceptances of Office, affecting the Lands of a Registered Proprietor, are deemed charges by a Registered Proprietor,—and Official Certificates of 'such Judgments, Crown Debts, Extents, and Acceptances of Office, signed by the proper Officers respectively, shall be received and Registered as Instruments of Charge; but, in such cases, it shall not be incumbent on the District Registrar to require a plan of the land charged, provided the same be sufficiently distinguished by reference to entries already on the Registers. 64. As regards Charges created by Wills of registered Proprietors, such Wills or Probates, Administrations with Will annexed, Exemplifications, and Office Copies of Wills, may be received as Instruments of Charge. 65. The District Registrar may require proof, to his satisfaction, of the validity of any Charge, and, unless satisfied thereof, he may refuse to Register the same absolutely,—in which case, he shall Register the same provisionally, subject to any Order which the Supreme
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PROPOSED REGULATIONS UNDER THE Court may make relative thereto. Every Entry of a Provisional Registration shall be headed " Provisionally Registered." Notice shall be given to the party tendering such Charge that the same is only Provisionally Registered, in order that he or she may apply, if thought fit, to the Supreme Court, for an Order to make the Registration absolute. If no such Order shall be intimated to the District Registrar, within the space of three months after the first presentation of the Charge for Registration, the District Registrar may thereupon, in his discretion, cancel the Register, by writing across the Entry in the Register the Word "Cancelled," with his Name, and the Date. He shall notify «uch fact to the Applicant, and shall, on demand, return to him the Deed of Charge. 66. The Form for Registering Charges shall be as follows, but subject to be from time to time altered by authority of the Registrar-General:— " Number .■ —On the day of ,A. 8., of , was " Registered, as Proprietor [in cases of Transfer, add the words "as Transferee,"] of the " following Charge, viz.:— " Date of Instrument. " Name of Registered Proprietor of Land. " Registered No. of ditto. " In whose favor charge made. " Amount secured. " Day of payment. " Rate of Interest. "■ A Plan of the Land charged is delineated or annexed on the opposite leaf or page. " The following numbers refer to prior Incumbrances affecting the Land, viz:—- -" Charges. " Leases. " Inhibitions." In the case of Transfers of Charges there shall be added in the margin the original Register Number of such Charge. A Memorandum of Inhibitions affecting the Charge shall be subjoined in the following form.
Memorandum of Inhibitions affecting the above Charge.
66 (b) The form of Certificate of Charge shall be as fotlows : — < " I, John E. Smith, District Registrar of do certify that A.B. of " was duly registered as Proprietor of the undermentioned Charge by an entry in the " Register of Charges for the District of , which entry is in form or to " the effect following," (here copy particulars of entry.) Dated Signed " John E. Smith," District Registrar." 67. No Transfer of Proprietorship of a Charge shall be registered without delivery up of the existing certificate. 68. Whenever a Charge is registered the Register Number of such Charge shall be entered in the Memorandum at foot of the Register of the Proprietor's Title. Whenever an Inhibition is registered against a Charge the Number of the Inhibition shall be entered on the Memorandum at foot of the Register, and when Cancelled an entry shall be made of such Cancellation. 69. Upon sale or foreclosure under any order or decree of the Supreme Court of land subject to a registered charge, the District Registrar shall make the requisite entries and transfers for giving effect to such order or decree. 70. Upon a sale of land under a power of sale contained or implied in the instrument of charge, the District Registrar shall, after due proof made to' his satisfaction of compliance with the prescribed conditions, make the requisite entries and transfers in the Register for giving effect to* such sale.
Register No. of Inhibition. District Registrar's Signature. When cancelled. District Registra's Signature. I No. 158. J. E. Smith. J. E. Smith. 5th April, 1862.
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LAND REGISTRY ACT, 1860. How, in the case of Charges intended to rank pari passu, under a Write for instance ? In that case, there being material equities, they should be registered only by way of Inhibition, as one class, leaving them to be effectuated in Equity, unless they be registered in the aggregate as one charge, leaving the parties to settle their equities between themselves. 71. Upon the d'schargc of any charge, the District Registrar shall write across the entry in the Register a Minute indicating such discharge, whereupon such Registry shall be deemed to be cancelled and discharged. General Regulations relating to Transfers of Land and Charges. 72. When any land or charge is transferred entire, the District Registrar shall write or cause to be written across the original entry a minute indicating such transfer, and shall sign the same. 73. Where land is subdivided a new entry shall be made in the Register of Proprietors, in respect of each subdivisional part, including the part, if any, retained by the original Proprietor, and Minutes shall be written across the original entry indicating such subdivisional transfers. 74. Deeds of transfer shall be numbered and indexed according to Regulations made from time to time by the Registrar-General. Transmission. 75. Upon any application made to register Title, upon the death of a sole registered proprietor or of the survivor of several joint registered proprietors, it shall be the duty of the District Registrar to satisfy himself, whether the deceased held the land in his own right, or as a trustee, whether he died testate or intestate, whether he left his estate free from, or subject to debts. If testate, he is to satisfy himself as to the validity of the Will or Codicil of the deceased, t—whether the land was devised by such Will or Codicil absolutely or subject to particular uses, estates, trusts, or interests, or to charges or special limitations or conditions, and who are the devisees and other persons interested under such Will. If the deceased died intestate, he is to satisfy himself who is his heir at law, and in case he died leaving his estate subject to debts, then who are his creditors. Where any persons appearing to be interested in the land, shall be infants, he shall satisfy himself who is the guardian or person entitled to be the guardian of such infants; in the case of married women, who are their husbands ; in the case of lunatics, who are their Committees, if any ; And of all other matters in any way material, in his judgment, for determining, who is the fit person to be registered in the place of the deceased proprietor. All which matters and things he shall fully report to the Registrar-General. 76. Where it shall appear to the satisfaction of the Registrar-General, that the deceased proprietor was Trustee, no person shall be registered as proprietor except upon the order, or in accordance with the opinion, of the Supreme Court. 77. Before assuming the intestacy of a deceased proprietor, the District Registrar shall require the production of letters of administration to the deceased, if granted ; —if none have been granted, then an affidavit to that effect. He shall also require the affidavit of the party applying to the effect that he or she has made, or caused search to be made, for any Will or Codicil of the deceased, amongst the papers of the deceased, at his Bankers, if any, at his Agents or Solicitors, if any, and in all other places where it was likely that a Will or Codicil may have been deposited ; and further that no Will or Codicil has been found, nor has any circumstance come to the knowledge of the deponent, from which to infer that any Will or Codicil is or has been in existence ; (or, if there has been any Will or Codicil in existence), then that the same has been destroyed (setting out the facts relating to such destruction) —and generally the party applying shall make affidavit that he or she verily believes that there is no Will or Codicil of the deceased in existence. The District Registrar shall also require any corroborative proof of intestacy as to him may seem fit. 78. Whenever application is made to register the title of a deceased Proprietor of land, the Registrar shall advertise for Creditors to come in before him and prove their debts on or before a day specified in such advertisement. Such advertisement shall be continued for three successive weeks in some newspaper of the Province in which the land is situate. All persons having claims on the estate of the deceased may come in and prove their claims, and upon proof thereof, to the satisfaction of the District Registrar, Inhibitions may be lodged against the registered land by or on behalf of such claimants according to legal priority. 79. Where a Will or a Codicil shall have been proved in some competent Court, the probate exemplification or office copy of such Will or Codicil may be admitted as evidence of such Will or Codicil for purposes of Registration, with such corroborative proof, if any, as the District Registrar shall require.
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PROPOSED REGULATIONS UNDER THE 80. Every such original Will probate or office copy shall be deposited with the District Registrar, and shall be properly numbered for reference, and kept in some proper place of safe custody. 81. Where an original Will or Coc'icil shall be produced for the purpose of Registration, the District Registrar shall require proof thereof by at least one of the Witnesses, if resident within the District ; or such other proof as would be required of Wills or Codicils in Courts of Equity. 82. Provided, that as regards Wills and Codicils, executed out of the Province, or in case of the absence of witnesses, the District Registrar may dispense with proof by witnesses of such Will or Codicil, on receiving evidence to his satisfaction, as to the custody from which such Will or Codicil came, and such other evidence as may satisfy him of the genuineness and validity of such Will or Codicil. 83. If by the Will or Codicil of the deceased Proprietor the Land be devised to any person or persons absolutely, such person or persons shall be registered as Proprietor or Proprietors in place of the deceased Proprietor. 84. If the same be devised to more persons than one as Tenants in common, the Devisee of each share in common shall be registered as Proprietor in respect of such share. 85. If such devise shall be subject to charges, which, in the judgment of the District Registrar, should be protected by Inhibition, the Title shall be registered subject to such Inhibition, which the District Registrar shall lodge accordingly. 86. If the devise be to Trustees, such Trustees shall be registered as Proprietors, subject to Inhibition for protecting the rights of all parties interested under the Will or Codicil, which Inhibition the District Registrar shall lodge accordingly. 87. If the devise be for particular Estates, or subject to limitations, powers, or conditions, the Title shall be registered in the name of the devisee for the first estate of freehold, if he shall appear to the District Registrar a fit person to protect the rights of parties interested under the Will or Codicil—-and if not, then in the name of such other person, as shall appear in the judgment of the District Registrar to be the fit person: subject to Inhibition for protecting the rights of all parties interested under the Will or Codicil, which Inhibition the District Registrar shall lodge accordingly. 88. The District Registrar shall not make any entry, in the case of transfer of Title on the death of a deceased Proprietor, until he shall have first transmitted full particulars of the whole case to the Registrar-General, who may direct the District Registrar what entries to make; and the District Registrar shall in all things conform to such directions of the Registrar-General. 89. When an infant shall be entitled to be registered as Proprietor in the last mentioned cases, the guardian, or person entitled to be guardian, of such infant may be registered in his or her place, subject to an Inhibition for protecting the rights of such infant, which Inhibition the District Registrar shall lodge accordingly. 90. When a married woman shall be entitled to be registered as Proprietor, in the last mentioned cases, the husband of such married woman may be joined on the Register with his wife as co-Proprietor, in right of his wife: subject to the conditions and regulations applicable to the Registration of a husband, in right of his wife. 91. Where the person entitled to be registered as Proprietor, shall appear to the District Registrar to be an idiot or lunatic, the District Registrar may register the Committee of such idiot or lunatic as Proprietor in his or her place: subject to Inhibition for protecting the lights of such idiot or lunatic, which Inhibition the District Registrar shall lodge accordingly." 92. Where, upon the application of any person to register the Title to land of a deceased proprietor, it shall appear to the satisfaction of the District Registrar, that the deceased proprietor died intestate, the District-Registrar shall cause an advertisement to be inserted in some Newspaper circulating in the Province, calling on persons to come in and establish their claims as Heir or Heirs at Law of the deceased; and he shall, in such advertisement, specify a day and time and place for hearing and determining such claims; at which time and place ho shall examine such claims, and shall hear any parties then present, tendering evidence or information in reference thereto, or to the Heirship of the deceased; and he may from time to time adjourn such hearing; and he shall ascertain, to his satisfaction, the Heirship to the deceased; and shall compile or cause to be compiled a proper Pedigree to the deceased, showing such Heirship, and the degree of consanguinity to the deceased; and shall transmit the same with the verifications thereof to the Registrar-General.
LAND REGISTRY ACT, 1860. ■ 93. Upon examining a married woman as to her assent to any disposition of Land whereof she and her husband are registered as co-proprietors, it shall be the duty of the District Registrar to explain to her her rights in the Land, and the effect of the proposed disposition; and he shall enquire whether she intends to give up her interest in the estate to be passed; and he shall make a record of her answer thereto; and where any such married woman, in answer to such enquiry shall declare that she intends to give up her interest without any provision, the District Registrar shall satisfy himself of the truth of such declaration; and where any provision has been agreed to be made, the District Registrar shall satisfy himself that the same has been made; and he shall record the particulars thereof; and he shall not proceed with the proposed Registration, until he shall be satisfied as the foregoing particulars. Leases. 94. No notice of a Lease or agreement for a Lease shall be registered unless such Lease or agreement be made by the registered Proprietor of the land to which it relates, or his duly authorized Attorney, except in the case of Leases made by a deceased Proprietor, which may ba registered as against the person succeeding on the register to the title of the deceased proprietor. 95. No Lease or agreement for lease shall be registered, without a plan of the land included therein, either contained in the instrument itself or annexed thereto, with a declaration by the party applying to the following effect :—- -" I, A. 8., of , declare that the annexed Lease (or agreement for Lease) relates to the " land described in the annexed plan, and I apply to Register notice thereof in respect of such land. " Dated ■ (Signed) "A. 8., of ." If by Attorney then add the words "by C. D. of his Attorney." —Such plan shall be conformable to Regulations, and shall precisely identify the land included in the Lease or agreement for Lease with the proprietary title thereto. 96. Leases or agreements for Leases, deposited for purposes of registry, shall be numbered consecutively, in the order in which they shall be deposited, and each instrument deposited shall be stamped or marked with its proper number, and shall be kept in some place of safe custody under the charge of the District Registrar. 97. An entry of every such Lease or agreement for Lease shall be made in the Register of Leases, in the order in which the same shall be deposited ; and such entry may be in the form following, which form may be Varied from time to time by authority of the Registrar-General. Form of Entry in Register of Lease. " On the day of notice of the undermentioned Lease (or agreement for Lease) " was registered, viz. :— " Date of Lease (or agreement). " Name of Proprietor and Lessor. " Register number of ditto. " Description of land. " Name of Lessee, with his place of abode and addition. Term. Yearly Rent, £ A plan of such land is (delineated on the opposite leaf, or) hereto annexed (as the case may be.) Immediately on any such Lease or agreement being entered in the Register of Leases, a reference to it under its proper number, shall be entered in the Register of Proprietors. 98. When any Lease or agreement for Lease, whereof notice is registered, shall bo surrendered or otherwise determined, the District Registrar shall, upon proof thereof to his satisfaction, cancel the entry of such notice upon the Register, by writing across the same a minute indicating such surrender or determination, and sign the same. The entry in the Index shall at the same time be cancelled, and the entry of discharge made in the Memorandum subjoined to the Register of proprietorship. Titles derived through Unregistered Instruments. 99. Persons seeking to register Titles whether to land or charges derived through unregistered iustruments may do so, —subject to the like Regulations as in the case of an original application. 100. Persons seeking to Register charges on land to which Title shall be derived through unregistered instruments may do so, on proof of Title to the satisfaction of the District Registrar,— subject to guch Regulations as the Registrar-General shall from time to time prescribe,
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PROPOSED REGULATIONS UNDER THE Inhibitions. 101. Any Inhibition authorized by the Land Registry Act may be lodged either by delivery at the Registry Office or by sending the same by Post in the usual way, addressed to the District Registrar, together with a statement showing the nature of the interest sought to be protected by such Inhibition. Such interest shall be defined in such statement, as nearly as may be, in a simple and compendious form. 102. The Inhibition shall be in the form or to the effect following,—subject to be varied by direction of the Registrar-General :— " I, A. 8., of , declare that I am interested in the undermentioned land or charge, that is to say"—[specify whether land or charge, and the particulars thereof. If land, the situation, estimated contents, measurement, Province, District, Parish or place where situate, the number of the section, subsection, or allotment, the number of the Crown Grant relating to. the same, the name of the registered Proprietor of the land or charge, and the Register number thereof]. " The " nature of the interest which I desire to protect appears by the accompanying statement. A plan " of the land to which this Inhibition relates is hereto annexed; and I hereby inhibit any dealing " with such land to the prejudice of my before-mentioned interest. My address is:"—[Here add some place of address in the town where the Register Office is situate]. (Signed) "A.8." " Signed in the presence of 103. Such declaration and Inhibition shall be either signed and made in presence of the District Registrar or Registrar-General, or their respective deputies, or before some Justice of the Peace for the Colony of New Zealand. 104. If the Inhibition relates to land, a plan of the land shall be annexed. 105. Inhibitions shall be numbered consecutively in the order in which they shall be received, and each Inhibition shall be stamped or marked with the proper number, immediately on receipt thereof, and a reference thereto entered in the Register of Proprietors, (or of charges as the case may be,) affected by such Inhibition. 106. A Book shall be kept for entering a short minute of Inhibitions, lodged immediately on receipt thereof. 107. Such Book shall be kept in the form from time to time prescribed by the Registrar-General. 108. A receipt for each Inhibition shall be signed by the District Registrar, and delivered or sent by Post to the Inhibitor, which receipt shall be in a form from time to time prescribed by the Registrar-General, and shall specify the day and hour of the receipt thereof. 109. On the District Registrar being satisfied that the Regulations have been complied with, the Inhibition shall be forthwith registered in the Register of Inhibitions, each Inhibition being entered separately in consecutive order. 110. The form of entry in the Registrar of Inhibitions may be as follows, —subject to be from time to time altered by authority of the Registrar-General : — " On the day of (the day of the deposit of Inhibition), the following " Inhibition was lodged, viz. : —[Here, copy Inhibition]. The interest protected by such inhibitor "is as follows :"—[Here copy particulars from the statement accompanying the Inhibition]. " The " proprietor of the said (land or charge as the case may be), is hereby inhibited from dealing with " the same to the prejudice of the above mentioned interest." John E. Smith, District Registrar. 111. Notice of such Inhibition shall be given forthwith to the registered Proprietor of the land or charge to which the Inhibition relates or his agent, in such manner as the Registrar-General shall from time to time direct. 112. Every person lodging an Inhibition shall make and subscribe before the District Registrar, or before some Justice of the Peace for the Colony, an affidavit to the following effect, which shall be annexed to the Inhibition : —■ " I, A. 8., of , do solemnly swear that according to the best of my knowledge, " information, and belief, I am (or if the Inhibition be lodged on behalf of any other person, then " that C. D. is) (or are) interested in the land or charge referred to in the annexed Inhibition, '-' Dated, &c. " Sworn, &c,
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LAND REGISTRY ACT, 1860. 113. In all cases of proposed transfer by the Registered Proprietor of any land or charge subject to Inhibition, notice of such proposed transfer shall be given to the Inhibitors. Such notice shall be given by the District Registrar in such form and manner as the Registrar-General shall from time to time direct, and Inhibitors shall be entitled to be heard by the District Registrar in objection to any proposed transfer. 114. Inhibitions shall be cancelled by the District Registrar writing across the same a Minute indicating such cancellation, with his signature, and the necessary entries shall at the game time be made in the Registers affected by the Inhibition, and in the Indexes. Inspection of Register. 115. Before inspecting any Register or document in the custody of the District Registrar, the person applying for inspection shall subscribe the following declaration :— " I, A. 8., of , do declare that I am the Proprietor of [or as the case may be, '* authorised by the Proprietor of-: ,orby C. D., of ; , a person having an interest " in] the undermentioned land (or charge), and I apply to inspect," [Here specify the Register or " Document referred to,] "relating to the same land or charge." " Dated this day of (Signed) A. B. ." Land or charge referred to. [Here specify the land or charge referred to.] (Signed) A. B. Fees. 116. The following shall be the scale of Fees : — For every application to register a Title to Land or a Charge or a Notice of Lease or an Inhibition , . ss. For every hearing and adjournment of hearing, by every party attending the hearing , ~ ss. For every examination of Title to Land For every Deed or Document deposited for examination Is. For every Entry on the Register, whether of Propietorship, Charge, Lease, or Inhibition, exclusive of the Plan ~'.. 2s. 6d, For every Certificate of Title to Land or Charge, exclusive of the Plan 2s. 6d. For cancelling an Entry rhn ■ 2s. 6d. For every inspection of a Register or Document Is. For Copies of Documents per folio of words exclusive of Plans ..... 4d. For Copies of Plans per Sections, Sub-section, or Allotment, in addition to Fee for Entry 2s. 6d. For every Gazette Notice, (besides cost of advertizing) ss. Assurance Fund. 117. The value of land for the purpose of the Land Assurance Fund shall be estimated jaccordihg to the value declared by the applicant. If the District Registrar shall be dissatisfied with such declared value, he may surcharge the applicant at such value as he may think fit. If the applicant shall be dissatisfied with such surcharge, and the applicant and the District Registrar shall be unable to agree on the value, the applicant may demand a valuation, and the. value shall in that case be determined by some competent Surveyor, to be nominated by the. District Registrar. If such valuation shall amount to, or exceed the amount surcharged, the cost of the valuation shall be borne by the applicant, otherwise by the Government. 118. No Certificate of Land or Charge shall be issued without prepayment of. the Assurance, Fund assessment. Notices. 119. Every person making an application to register, lpdging an Inhibition, or taking any other proceeding under the Laud Registry Act shall, at the same time, specify in writing some known place of address situate in the same Town as the Register Office, at which place notices may be left. The leaving of Notices at such places shall be deemed good service thereof under the Act and under these Regulations. 120. The same persons may, by writing left with the District Registrar from time, to time, change suph place of Notices. 121. These Regulations may from time to time be altered and rescinded by the Governor in Council and the Registrar General may rescind, alter, and vary the same so far as may' be* consistent with the powers vested in him on that behalf by the Land Registry Act,
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PROPOSED REGULATIONS UNDER THE LAND REGISTRY ACT 1860., Appendix to the Journals of the House of Representatives, 1861 Session I, D-01
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23,973PROPOSED REGULATIONS UNDER THE LAND REGISTRY ACT 1860. Appendix to the Journals of the House of Representatives, 1861 Session I, D-01
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