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.