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CONVEYANCING. 811

CONVEYANCING ACT 1915.

An Act to consolidate the Law relating; to 6 GEORGE v., ~ ° No. 2633. Conveyancing. —

[6th September, 1915.1

BE it enacted by the King's Most Excellent Majesty by and with conveyancing the advice and consent of the Legislative Council and the Legis- Aet x '

lative Assembly of Victoria in this present Parliament assembled and by the authority of the same as follows (that is to say):—

1. This Act may be cited as the Conveyancing Act 1915, and shall come into operation on the first day of October One thousand nine hundred and fifteen, and is divided into Tarts and Divisions as follows:—

PART I.—Preliminary s. 3. PART II.—Sales and Other Transactions ss. 4-13. PART III.—Leases ss. 14-26. PART IV.—Mortgages ss. 27-47. PART V.—Rent Charges and Other Annual Sums ss. 48-49. PART VI.—Long Terms s. 50. PART VII.—Construction and Effect of Deeds and Other

Instruments ss. 51-72. PART VIII.—Miscellaneous ss. 73-76.

2 . The Acts mentioned in the First Schedule hereto to the extent Repeal, thereby expressed to be repealed are hereby repealed, provided that first schedule, such repeal shall not affect any right accrued or obligation incurred thereunder before the commencement of this Act, nor shall the same affect the validity or invalidity or any operation effect or consequence of any instrument executed or made or of anything done or suffered or of any order made before the commencement of this Act; nor shall the same affect any action proceeding or thing then pending or uncompleted; and every such action proceeding and thing may be carried on and completed as if there had been no such repeal.

812 CONVEYANCING ACT 1915. [6 GEO. V.

PART I.—PRELIMINARY.

conveyancing 3 . In the construction of this Act— jlc6 1904 s. 3.

interpretation. (a) «Conveyance," unless a contrary intention appears , in-c

4 « s.62V":t' eludes assignment appointment lease set t lement and other assurance and covenant to surrender made by deed on a sale mortgage demise or set t lement of any proper ty or on any other dealing with or for any property ; and "convey," unless a contrary intention appears , has a meaning corresponding with tha t of conveyance ;(o)

(b) " C o u r t " unless the contrary is expressed means the Supreme Cour t ;

ik (c) " I n c u m b r a n c e " includes a mortgage in fee or for a less estate and a t rus t for securing money and a lien and a charge of a port ion annui ty or other capital or annua l sum ; and " incumbrancer" has a meaning corresponding with t h a t of incumbrance and includes every person entitled to the benefit of an incumbrance or to require payment or discharge thereof ;

ib. (d) " I n s o l v e n c y " includes liquidation by ar rangement and any other act or proceeding in law having under any Act effects or results similar to those of insolvency ; and " i n s o l v e n t " has a meaning corresponding with t h a t of insolvency;

ib. (e) " I n s t r u m e n t " includes deed will and Act of P a r l i a m e n t ; 45&46vict. (/) " L a n d , " unless a contrary intention appears, includes land c. ss». 2 (3). 0 f a n y t e n u r e o r k i n ( i soever and any estate or interest

therein and tenements and heredi taments corporeal or incorporeal and houses and other buildings, also a n undivided share in land ; and in relation to land " i n c o m e " includes rents and profits and possession includes receipt of income ;

44&45viot. (y) " M o r t g a g e " includes any charge on any proper ty for c '41 s-2- securing money or money's wor th ; and " m o r t g a g e m o n e y "

means money or money's worth secured by a mor tgage ; and " m o r t g a g o r " includes any person from time to t ime deriving title under the original mortgagor or entitled to redeem a mortgage according to his estate interest or r igh t in the mortgaged proper ty; and " m o r t g a g e e " includes any person from time to time deriving ti t le under the original mortgagee ; and "mor tgagee in possession" is for the purposes of this Act a mortgagee who in r igh t of the mortgage has entered into and is in possession of the mortgaged proper ty ;

see 44 &45 viot. (7a) "Proper ty , " unless a contrary intention appears , includes °5^86v- r e a ^ a personal property and any debt and any thing in c. so e. i(i). action and any other right or interest in the nature of

property whether in possession or no t ;

(a) The word "conveyance" in this section Park, 1907 V.L.R., 31. Followed in re Rogers includes a " t ransfer" under the Transfor of and Bodd's Contract, 1907 V.L.E., 511. Land Acts.—In re Stewart and McLeod, ex parte

No. 2633.] CONVEYANCING ACT 1915. 813

(i) " Purchaser," unless a contrary intention appears, includes Conveyancing

a lessee or mortgagee or an intending purchaser lessee or Act 190\ mortgagee or other person who for valuable consideration c. 41 s. 2.'°' takes or deals for property ; and "purchase," unless a con- 45448 vict. trary attention appears, has a meaning corresponding with c'39 s' """ that of purchaser ;

(J) " Ren t " includes yearly or other rent toll duty royalty or 44 & 45 vict. other reservation by the acre the ton or otherwise ; andc'41s"2" " fine" includes premium or fore-gift and any paymeut consideration or benefit in the nature of a fine premium or fore-gift;

(k) " Securities " include stock funds and shares ; and ib. (1) " Will " includes codicil and other testamentary instrument see45&-46Vict

and a writing in the nature of a will. c"38s- 2<10v"->-E x c e p t as hereinaf ter in th i s A c t provided th i s A c t so far Application of

as inconsistent with the Transfer of Land Act 1915, shall not apply Act-or be deemed to apply to lands whether freehold or leasehold which are under the operation of that Act.

PAET II .—SALES AND OTHEB TRANSACTIONS.

Contracts for Sale.

4. In the completion of any contract of sale of land made On Or Forty years to

after the twenty-eighth day of September One thousand nine hundred 0? commenol'-and fourteen and subject to any stipulation to the contrary in the ment of title. contract forty years shall be the period of commencement of title 5cfi9uTe!!/

which a purchaser may require instead of an earlier title commencing with the Crown gran t : nevertheless earlier title than forty years may be required in cases similar to those in which earlier title might in England on the said date have been required.

5. (1) In the completion of any contract for sale of land subject Applications of to any stipulation to the contrary in the contract, recitals statements conditions of and descriptions of facts matters and parties contained in deeds ^ h u S . instruments Acts of Parliament or statutory declarations twenty years conveyancing old at the date of the contract shall unless and except so far as they ^"'^^Vict are proved to be inaccurate or to be inconsistent with any statutory c. 41 s. 3. record of any dealing betaken to be sufficient evidence of the truth f7^f2

vict-of such facts matters and descriptions.

Qi) A purchaser of any property shall not require the" production see 44 & 45 vict. or any abstract or copy of any deed will or other document dated or °'41 s- 8' made before the time prescribed by law or stipulated for commencement of the title, even though the same creates a power subsequently exercised by an instrument abstracted in the abstract furnished to the purchaser, nor shall he require any information or make any requisition objection or inquiry with respect to any such deed will or document or the title prior to that time, notwithstanding that any such deed will or other document or that prior title is recited covenanted to be produced or noticed, and he shall assume unless the contrary appears that the recitals contained in the abstracted instruments of any deed will or other document forming part of that prior title are correct and give all the material contents of the deed will or other document so


Conoeyaiicing recited and t h a t every document so recited was duly executed by all Aet 1904. necessary part ies and perfected if and as required by acknowledgment

or otherwise. 44* 45 vict. (3) W h e r e land sold is held by lease (not including under- lease)

the purchaser shall assume unless the contrary appears that the lease was duly granted, and on production of the receipt for the last payment due for rent under the lease before the date of actual completion of the purchase he shall assume unless the contrary appears that all the covenants and provisions of the lease have been duly performed and observed up to the date of actual completion of the purchase.

(4) Where land sold is held by under-lease the purchaser shall assume unless the contrary appears that the under-lease and every superior lease were duly granted, and on production of the receipt for the last payment due for rent under the under-lease before the date of actual completion of the purchase he shall assume unless the contrary appears that all the covenants and provisions of the under-lease have been duly performed and observed up to the date of actual completion of the purchase, and farther that all rent due under every superior lease and all the covenants and provisions of every superior lease have been paid and duly performed and observed up to that date.

ib. (5) On a sale of any property the expenses of the production and inspection of all records proceedings of Courts court rolls deeds wills probates letters of administration and other documents not in the vendor's possession and the expenses of all journeys incidental to such production or inspection, and the expenses of searching for procuring making verifying and producing all certificates declarations evidences and information not in the vendor's possession, and all attested stamped office or other copies or abstracts of or extracts from any documents aforesaid not in the vendor's possession, if any such production inspection journey search procuring making or verifying is required by a purchaser either for verification of the abstract or for any other purpose shall be borne by the purchaser who requires the same, and where the vendor retains possession of any document the expenses of making any copy thereof attested or unattested which a purchaser requires to be delivered to him shall be borne by that purchaser.'")

(6) No contract of sale by auction relating to land shall contain a clause st ipulat ing for the payment by the purchaser to the vendor or his solicitor of any costs of perusal of the conveyance or of obtaining the execution thereof.(6)

(a) Under a contract for the sale of land, the purchaser in his requisition required proof that A., a person named in one of the conveyances, was not identical with a person of the same name who the purchaser said was an undischarged insolvent, and he also required proof that at the date of the filing of a power of attorney, under which one of the deeds was executed, the principal for whom the attorney was acting was not dead.

Held, that under this sub-seotion the purchaser was liable to pay the exponses of such proofs.-*— In re Mather and Payne's Contract, 1905 V.L.E., 453. As to land acquired under the Closer Settlement Act, see Section 134 of that Act.

(6) A stipulation in a contract for the sale of

land that the purchaser shall pay to the vendor or his solicitor the costs of perusal of the conveyance or of obtaining the execution thereof ia illegal, and is not binding on the purchaser.

The rules of construction to bo applied where two sections of a Statute are repugnant discussed. —In re Stewart and McLeod, ex parte Park, 1907 V.L.R., 31.

This sub-section covers the case of a contract of sale by the sheriff to a purchaser at an auction sale held by the sheriff undor a writ of fi. fa., and a condition in such a contract providing for payment by the purchaser of the " perusal fees " of the sheriff's solicitor is illegal.—In re Rogers and Bodd's Contract, 1907 V.L.R., 511.

A clause in a contract of sale by auction of land


(7) On a sale of any property in lots a purchaser of two or more conveyancing lots held wholly or partly under the same title shall not have a right ^cjl904-to more than one abstract of the common title except at his own cf 4itf s.10t' expense.

(8) This section applies only to titles and purchasers on sales properly so called notwithstanding any interpretation in this Act.

(9) This section except sub-section six thereof applies only if and as ib. far as a contrary intention is not expressed in the contract of sale and shall have effect subject to the terms of the contract and to the provisions therein contained.

(10) This section applies only to sales made after the thirty-first n>. day of January One thousand nine hundred and five.

(11) Nothing in this section shall be construed as binding a ib. purchaser to complete his purchase in any case where on a contract made independently of this section and containing stipulations similar to the provisions of this section or any of them specific performance of the contract would not be enforced against him by the Court.

Discharge of Incumbrances on Sale. 6 . (1) Where land subject to any incumbrance whether im- povwon b?

mediately payable or not is sold by the Court or out of Court the Court incumbrances may if it thinks fit on the application of any party to the sale direct therSwm'eed

or allow payment into Court in case of an annual sum charged on the n. s. s. land or of a capital sum charged on a determinable interest in the land of such amount as when invested in Government securities the Court considers will be sufficient by means of the dividends thereof to keep down or otherwise provide for that charge and in any other case of capital money charged on the land of the amount sufficient to meet the incumbrance and any interest due thereon ; but in either case there shall also be paid into Court such additional amount as the Court considers will be sufficient to meet the contingency of further costs expenses and interest and any other contingency except depreciation of investments not exceeding one-tenth part of the original amount to be paid in unless the Court for special reason thinks fit to require a larger additional amount.

(2) Thereupon the Court may if it thinks fit and either after or n. without any notice to the incumbrancer as the Court thinks fit declare the land to be freed from the incumbrance and make any order for conveyance or vesting order proper for giving effect to the sale, and give directions for the retention and investment of the money in Court.

provided t h a t " the provisions of sub-section 6 shall not apply to the contract, and notwithstanding the provisions of such sub-section the conveyance shall be perused, copied, examined, and the execution thereof procured by the vendors' solicitors at the expense of the purchaser:" Held, that the purchaser did not waive the benefit of the provisions of sub-section 6 by signing the contract; and that the clause was illegal and void.—In re Crook and others' Contract, 1909 V.L.R., 12.

A provision in a contract made at the sale of land t y auction " that the purchaser shall pay the

vendor's costs and expenses of and incidental to the transfer exclusive of perusal and of obtaining the execution of the transfer " is not void under this sub-section.

The expression " costs of perusal of the conveyance or of obtaining the execution thereof" does not include the costs of all matters connected with the transfer of the land sold.

" Perusal" means reading the conveyance to see whether it expresses what it is intended to express.—In re Sutton and the Federal Building Society's Contract, 1909 V.L.R., 473.

816 C O N V E Y A N C I N G ACT 1915. [,6 GEO. V .

Conveyancing (3) After notice served on the persons interested in or enti t led to Act 1904. the money or fund in Court the Court may direct payment or transfer

thereof to the persons enti t led to receive or give a discharge for t h e same on such te rms as to the delivering up of deeds or other documents or on snch other terms as the Court th inks fit, and general ly m a y give directions respecting the applicat ion or distribution of the capi ta l or income thereof.

Dispensing with (4) In any application under this section the Court may if it t h i n k s ot'notioe'06 fit a s respects any purchaser or vendor dispense wi th the service of any Conveyancing notice which otherwise would by section seventy-five of this Ac t be tt^Ge" v required to be served on such purchaser or vendor. o.37s. i.' ' (5) This section applies to sales not completed a t the thir ty-f i rs t

day of J anua ry One thousand nine hundred and five and to sales the re after made.

General Words. General words 7 . (1) A conveyance of land shall be deemed to include and shall onTndoT1'003 by vir tue of th is Act operate to convey with the land al l buildings buildings. erections fixtures commons hedges ditches fences ways waters water -ATmi7ni. courses l iberties privileges easements ( o ) r igh ts and advantages wha t so-ee4i44 &

845VicL ever appertaining or reputed to appertain to the land or any part

thereof or at the time of conveyance demised occupied or enjoyed with or reputed or known as part or parcel of or appurtenant to the land or any part thereof.

(2) A conveyance of land having houses or other buildings thereon shall be deemed to include and shall by vir tue of this Act operate to convey with t he land houses or other buildings al l outhouses erections fixtures cellars areas courts courtyards cisterns sewers gu t te rs dra ins ways passages l ights water-courses liberties privileges easements r i g h t s and advantages whatsoever apper ta ining or reputed to apper ta in to the land houses or other buildings conveyed or any of them or any pa r t thereof or a t the t ime of conveyance demised occupied or enjoyed wi th or reputed or known as p a r t or parcel of or appur tenan t to the land houses or other buildings conveyed or any of t h e m or any p a r t thereof.

(3) This section applies only if and so far as a contrary intent ion is not expressed in the conveyance and shall have effect subject to the te rms of the conveyance and to the provisions therein contained.

(4) This section shall not be construed as giving to any person a better title to any property right or thing in this section mentioned than the title which the conveyance gives to him to the land expressed to be conveyed or as conveying to him any property right or thing in this section mentioned further or otherwise than as the same could have been conveyed to him by the conveying parties.

(5) This section applies only to conveyances made after the thir ty-f irs t day of J anua ry One thousand nine hundred and five.

(a) In order that the grant to a purchaser of a been in the contemplation of the parties that the right in the nature of an casement in respect of grantor should not use the land which he retains land of the vendor may be implied from a con- in a manner inconsistent with the enjoyment of veyanoe of part of a parcel of land of which the the alleged easement.—Nelson, v. Walker, 10 vendor retains the balance, it must appear, having C.L.R., 560. regard to all the circumstances of the case to have

No,. 2633.] CONVEYANCING ACT 1915. 817

Covenants for Title.

8. (1) In a conveyance there shall in the several cases in this conveyancing section mentioned be deemed to be included and there shall in those c°tenantsV' several cases by virtue of this Act be implied a covenant to title to be the effect in this section stated by the person or by each person s™e

P'4'*dnd 46

who conveys as far as regards the subject-matter or share of subject-Viot. 0.41 a. 7. matter expressed to be conveyed by him with the person if one to whom the conveyance is made, or with the persons jointly if more than one to whom the conveyance is made as joint tenants, or with each of the persons if more than one to whom the conveyance is made as tenants in common (that is to say) :—

A. In a conveyance for valuable consideration other than a 0n oonveyanoe mortgage the following covenant by a person who conveys and is £Tne&owner. expressed to convey as beneficial owner, namely :—

That notwithstanding anything by the person who so conveys Right to convey, or any one through whom he derives title otherwise than by purchase for value made done executed or omitted or knowingly suffered the person who so conveys has with the concurrence of every other person (if any) conveying by his direction full power to convey the subject-matter expressed to be conveyed subject as if so expressed and in the manner in which it is expressed to be conveyed, and that notwithstanding anything as aforesaid that subject-matter shall remain to and be quietly entered upon received and held occupied enjoyed and taken by the person to whom the conveyance is expressed to be made, and any person deriving title under him and the benefit thereof shall be received and taken accordingly without any lawful interruption or disturbance by the person who so conveys or any person conveying by his direction or rightfully claiming Quiet or to claim by through under or in trust for the person enJ°>'ment-who so conveys or any person conveying by his direction or by through or under any one not being a person claiming in respect of an estate or interest subject whereto the conveyance is expressly made through whom the person who so conveys derives title otherwise than by Freedonl from

purchase for value, and that freed and discharged from incumbranoe-or otherwise by the person who so conveys sufficiently indemnified against all such estates incumbrances claims and demands other than those subject to which the conveyance is expressly made as either before or after the date of the conveyance have been or shall be made occa-44&4svict. sioned or suffered by that person or by any person con- °-418-7-veying by his direction or by any person rightfully claiming by through under or in trust for the person who so conveys or by through or under any person conveying by his direction or by through or under any one through whom the person who so conveys derives title otherwise than by purchase for value, and further that the person who so Further conveys and any person conveying by his direction and r

every other person having or rightfully claiming any estate or interest in the subject-matter of conveyance other than an

VOL. 1.—3 F

assurance.


Conveyancing estate or interest subject whereto the conveyance is expressly Aa 190*- made by through under or in t rus t for the person who so

conveys or by th rough or under any person conveying by his direction or by through or under any one th rough whom the person who so conveys derives t i t le otherwise t han by purchase for value will from t ime to t ime and a t all t imes after the date of the conveyance on the request and a t t he cost of any person to whom the conveyance is expressed to be made, or of any person deriving ti t le under h im execute and do all such lawful assurances and th ings for further or more perfectly assur ing t he subject-matter of the conveyance to the person to whom the conveyance is made and to those deriving ti t le under h im subject as if so expressed and in the manner in which the conveyance is expressed to be made as by h im or them or any of them shall be reasonably required :

(in which covenant a purchase for value shall not be deemed to include a conveyance in consideration of marr iage) :

on conveyance B . I n a conveyance of leasehold proper ty for valuable considera-vaiueJby°ldsfor tion other than a mor tgage the following further covenant by a person owlfe"01*1 w a o conveys and is expressed to convey as beneficial owner, namely :— Validity of That notwithstanding anything by the person who so conveys or l!T'^ ™- * any one through whom he derives title otherwise than by pur-44 &; 45 Vict, i n -i - I T I T I I

c. 41 s. 7. chase lor value made done executed or omitted or knowingly suffered the lease or g r a n t creat ing the te rm or es ta te for whicli the land is conveyed is a t the t ime of conveyance a good valid and effectual lease or g r a n t of the property conveyed and is in full force unforfeited unsurrendered and in nowise become void or voidable, and t h a t no twi ths tanding any th ing as aforesaid all the ren t s reserved by and al l t he covenants conditions and agreements contained in the lease or g r a n t and on the pa r t of the lessee or g ran tee and the persons deriving ti t le under h im to be paid observed and performed have been paid observed and performed up to the t ime of conveyance :

(in which covenant a purchase for value shall not be deemed to include a conveyance in consideration of marr iage) :

on mortgage by C. In a conveyance by way of mor tgage the following covenant ownee"?lal by a person who conveys and is expressed to convey as beneficial ib. owner, namely :— Right to convey. Tha t the person who so conveys has with the concurrence of Qui«t every other person (if any) conveying by his direction full

y ' power to convey the subject-matter expressed to be conveyed by him subject as if so expressed and in the manner in which it is expressed to be conveyed, and also that if default is made in payment of the money intended to be secured by the conveyance or any interest thereon, or any part of that money or interest contrary to any provision in the conveyance it shall be lawful for the person to whom the conveyance is expressed to be made and the persons deriving title under him to enter into and upon or receive

No, 2633.] CONVEYANCING ACT 1915. 819

and thenceforth quietly hold occupy and en joy or t a k e a n d Conveyancing have the subject-matter expressed to be conveyed or any Aet 1904" part thereof without any lawful interruption or disturbance by the person who so conveys or any person conveying by his direction or any other person not beiug a person claiming in respect of an estate or interest subject whereto the conveyance is expressly made ; and that freed and discharged from or otherwise by the person who so conveys Freedom from sufficiently indemnified against all estates incumbrances moumbrance-claims and demands whatever other than those subject whereto the conveyance is expressly made ; and further that the person who so conveys and every person conveying by his direction and every person deriving title under any of them and every other person having or rightfully claiming any estate or interest in the subject-matter of Further conveyance or any part thereof other than an estate or as8uranoe-interest subject whereto the conveyance is expressly made will from time to time and at all times on the request of any person to whom the conveyance is expressed to be made, or of any person deriving title under him, but as long as any right of redemption exists under the conveyance, a t the cost of the person so conveying or of those deriving title under him and afterwards at the cost of the person making the request execute and do all such lawful assurances and things for further or more perfectly assuring the subject-matter of conveyance and every part thereof to the person to whom the conveyance is made and to those deriving title under him, subject as if so expressed and in the manner in which the conveyance is expressed to be made as by him or them or any of them shall be reasonably required.

D. In a conveyance by way of mortgage of leasehold property the on mortgage of following further covenant by a person who conveys and is expressed to beneficial

convey as beneficial owner, namely :— owner-

J J 44&45Vict. That the lease or grant creating the term or estate for which the validity of

land is held is at the time of conveyance avgood valid and Iease-effectual lease or grant of-the land conveyed and is in full force unforfeited and unsurrendered and in nowise become void or voidable and that all the rents reserved by and all the covenants conditions and agreements contained in the lease or grant and on the part of the lessee or grantee and the persons deriving title under him to be paid observed and performed have been paid observed and performed up to the time of conveyence, and also that the person so conveying or the persons deriving title under him will at all times, as long Payment of

• , i 'j. _o j_i ' rent and as any money remains on the security of the conveyance, performance of pay observe and perform or cause to be paid observed and c°venant8-performed all the rents reserved by and all the covenants i conditions and agreements contained in the lease or grant

, and .oh the part of the lessee or grantee and the persons deriving title under him to be paid observed and performed >

3 F 2

820 CONVEYANCING ACT 1915. [,6 GEO. V.

conveyancing and will keep the person to whom the conveyance is ^c(100'4- made and those deriving t i t le under h im indemnified

against all actions proceedings costs charges damages claims and demands (if any) to be incurred or sustained by him or them by reason of the non-payment of such ren t or the non-observance or non-performance of such covenants conditions and agreements or any of them :

On settlement. E. In a conveyance by way of settlement the following covenant by a person who conveys and is expressed to convey as settlor, namely :—

That the person so conveying and every person deriving title under him by deed or act or operation of law in his lifetime subsequent to that conveyance or by testamentary disposition or devolution in law on his death will from time to time and at all times after the date of that conveyance at the request and cost of any person deriving title thereunder execute and do all such lawful assurances and things for farther or more perfectly assuring the subject-matter of the conveyance to the persons to whom the conveyance is made and those deriving title under them, subject as if so expressed and in the manner in which the conveyance is expressed to be made as by them or any of them shall be reasonably required :

For further assurance limited. 44 & 45 Vict. c. 41 s. 7.

On conveyance by trustee or mortgagee &c. See ib.

Against incumbrances.

See U & 45 yict. c. 41 s. 7.

F . In any conveyance the following covenant by every person who conveys and is expressed to convey as trustee or mortgagee or as the legal personal representative of a deceased person or as Master-in-Lnnacy or as committee of estate of a lunatic so found by inquisition or under an order of the Court which covenant shall be deemed to extend to every such person's own acts only, namely :—

That the person so conveying has not executed or done, or knowingly suffered or been party or privy to any deed or thing whereby or by means whereof the subject-matter of the conveyance or any part thereof is or may be impeached charged affected or encumbered in title estate or otherwise, or whereb}' or by means whereof the person who so conveys is in anywise hindered from conveying the subject-matter of the conveyance or any part thereof in the manner in which it is expressed to be conveyed.

(2) Where in a conveyance it is expressed that by direction of a person expressed to direct as beneficial owner another person conveys then within this section the person giving the direction whether he conveys and is expressed to convey as beneficial owner or not shall be deemed to convey and to be expressed to convey as beneficial owner the subject-matter so conveyed by his direction ; and a covenant on his part shall be implied accordingly.

(3) Where a wife conveys and is expressed to convey as beneficial owner and the husband also conveys and is expressed to convey as beneficial owner, then within this section the wife shall be deemed to convey and to be expressed to convey by direction of the husband as


beneficial owner, and in addition to the covenant implied on the part of Conveyancing

the wife there shall also be implied first a covenant on the part of the Act 19M-

husband as the person giving that direction, and secondly a covenant on the part of the husband in the same terms as the covenant implied on the part of the wife.

(4) Where in a conveyance a person conveying is not expressed to convey as beneficial owner or as settlor or as trustee or as mortgagee or as the legal personal representative of a deceased person or as Master-in-Lunacy or as committee of estate of a lunatic so found by inquisition or under an order of the Court or by direction of a person as beneficial owner no covenant on the part of the person conveying shall be by virtue of this section implied in the conveyance.

(5) The benefit of a covenant implied as aforesaid shall be annexed and incident to, and shall go with the estate or interest of the implied covenantee, and shall be capable of being enforced by every person in whom that estate or interest is for the whole or any part thereof from time to time vested.

((>) A covenant implied as aforesaid may be varied or extended by express declaration in the conveyance or indorsed thereon, and as so varied or extended shall as far as may be operate in the like manner and with all the like incidents effects and consequences as if such variations or extensions were directed in this section to be implied.

(7) This section applies only to conveyances made after the thirty-first day of January One thousand nine hundred and five.

Execution of Purchase Deed.

9. (1) On a sale the purchaser shall not be entitled to require Rights of that the conveyance to him be executed in his presence or in that of his execution.as t0

solicitor as such, but shall be entitled to have at his own cost the ib.«. a. execution of the conveyance attested by some person appointed by him see 44 & 45 viot. who may if he thinks fit be his solicitor.

(2) This section applies only to sales made after the thirty-first day of January One thousand nine hundred and five.

Production and Safe Custody of Title Deeds.

10. (1) Where a person retains possession of documents and Acknowledg-

gives to another an acknowledgment in writing of the right of that pj-oduotioifand0

other to production of those documents and to delivery of copies thereof "afeecustodg otr

(in this section called an acknowledgment) that acknowledgment shall documents. have effect as in this section provided. Ib-s-9-

(2) An acknowledgment shall bind the documents to which i t I b ' 8 - 9 ' relates in the possession or under the control of the person who retains them and in the possession or under the control of every other person having possession or control thereof from time to time, but shall bind ib. s. 9. each individual possessor or person as long only as he has possession or control thereof, and every person so having possession or control from time to time shall be bound specifically to perform the obligations imposed tinder ihis section by an acknowledgment unless prevented from so doing by fire or other inevitable accident.

822 CONVEYANCING ACT 1915. ,[6 GEO. V.

Conveyancing (3) The obligations imposed under this section by an acknow-Actim. ledgment are to be performed from time to time at the request in

writing of the person to whom an acknowledgment is.given or of any person not being a lessee at a rent having or claiming any estate interest or right through or under that person or otherwise becoming through or under that person interested in or affected by the terms of any document to which the acknowledgment relates.

(4) The obligations imposed under this section by an acknowledgment are—

(i.) An obligation to produce the documents or any of them at all reasonable times for the purpose of inspection and of comparison with abstracts or copies thereof by the person entitled to request production or by any one by him authorized in writing ; and

(ii.) An obligation to produce the documents or any of them at any trial hearing or examination in any Court or in the execution of any commission or elsewhere in Victoria on any occasion on which production may properly be required for proving or supporting the title or claim of the person entitled to request production or for any other purpose relative to that title or claim ; and

(iii.) An obligation to deliver to the person entitled to request the same true copies or extracts attested or unattested of or from the documents or any of them.

(5) All costs and expenses of or incidental to the specific performance of any obligation imposed under this section by an acknowledgment shall be paid by the person requesting performance.

(6) An acknowledgment shall not confer any right to damages for loss or destruction of or injury to the documents to which it relates from whatever cause arising.

(7) Any person claiming to be entitled to the benefit of an acknowledgment may apply to the Court for an order directing the production of the documents to which it relates or any of them or the delivery of copies of or extracts from those documents or any of them to him or some person on his behalf, and the Court may if it thinks fit order production or production and delivery accordingly, and may give directions respecting the time place terms and mode of production or delivery and may make such order as it thinks fit respecting the costs of the application or any other matter connected with the application.

«& 45 viot. (8) An acknowledgment shall by virtue of this Part satisfy c. 41 s.9 a n y liability t 0 g i v e a covenant for production and delivery of

copies of or extracts from documents. (9) Where a person retains possession of documents and gives to

' another an undertaking in writing for safe custody thereof that undertaking shall impose on the person giving it and on every person having possession or control of the documents from time to time but on each individual possessor or person as long only as he has possession or control thereof an obligation to keep the documents safe whole uncancelled and undefaced, unless prevented from so doing by fire or other inevitable accident.

(10) Any person claiming to be entitled to the benefit of such an undertaking may apply to the Court to assess damages for any loss destruction of or injury to the documents or any of them and the

.No. 2633.] CONVEYANCING ACT 1915. 823

Court may if it thinks fit direct an inquiry respecting the amount of Conveyancing damages and order payment thereof by the person liable and may Aet 1904' make such order as it thinks fit respecting the costs of the application or any other matter connected with the application.

(11) An undertaking for safe custody of documents shall by virtue of this Part satisfy any liability to give a covenant for safe custody of documents.

(12) The rights conferred by an acknowledgment or an undertaking under this section shall be in addition to all such other rights relative to the production or inspection or the obtaining of copies of documents as are not by virtue of this Part satisfied by the giving of the acknowledgment or undertaking and shall have effect subject to the terms of the acknowledgment or undertaking, and to any provisions therein contained.

(13) This section applies only if and as far as a contrary intention is not expressed in the acknowledgment or undertaking.

(14) This section applies only to an acknowledgment or undertaking given or a liability respecting documents incurred after the thirty-first day of January One thousand nine hundred and five.

(15) Nothing in this section shall be deemed or taken to affect section one hundred and thirty-three of the Real Property Act 1915 or any corresponding enactment previously in force.

Notice of Restrictive Covenants token Land has Common Title with other Land.

1 1 . (1) Where land having a common title with other land isuoticeof disposed of to a purchaser (other than a lessee or a mortgagee) who "taints. does not hold or obtain possession of the documents forming the Conveyancing

common title such purchaser notwithstanding any stipulation to t h e ^ j ^ * ^ 1 0 " contrary may require that a memorandum giving notice of any o. 37 a. 11.' provisions contained in the disposition to him restrictive of user of or giving rights over any other land comprised in the common title shall where practicable be indorsed on or where impracticable be permanently annexed to some one document selected by the purchaser hut retained in the possession or power of the person who make,sc the disposition and being or forming part of the common title.

(2) The title of any person omitting to require an indorsement to be made or a memorandum to be annexed shall not by reason only of this enactment be prejudiced or affected by the omission.

Summary Procedure.

12. A vendor or purchaser of real or leasehold estate in Victoria vendor or or their representatives respectively may at any time or times and from obtain decision time to time apply in a summary way to a Judge of the Supreme Court chamberaasto in chambers in respect of any requisitions or objections or any claim ^^S^nsor for compensation or any other question arising out of or connected with compensation the contract (not being a question affecting the existence or validity of cmveymcin the contract) and the Judge shall make such order upon the application Act 1904 ».io.

37 & 38 Vict. c. 78 8. 9.


cmveyincing as to h im shall appear jus t and may order how and by whom all or Act 1904. a n y Q£ j-jjg c o s t s 0 f a U ( j incident to the application shall be borne and

paid.<a)

Notice. purchaser wh«n 1 3 . (1) A purchaser shall not be prejudicially affected by no«ce!d by notice of any instrument, fact, or thing, unless— ib. a. 11. (i.) I t is within his own knowledge, or would have come to his 45 & 46 vict. knowledge, if such inquiries and inspections had been

made as ought reasonably to have been made by him ; or (ii.) In the same transaction with respect to which a question of

notice to the purchaser arises, it has come to the knowledge of his counsel as such, or of his solicitor or other agent as such, or would have come to the knowledge of his solicitor or other agent as such, if such inquiries and inspections had been made as ought reasonably to have been made by the solicitor or other agent.

(2) This section shall not exempt a purchaser from any liability under or any obligation to perform or observe any covenant, condition, provision, or restriction contained in any instrument under which his title is derived, mediately or immediately, and such liability or obligation may be enforced in the same manner and to the same extent as if this section had not been enacted.

(3) A purchaser shall not by reason of anything in this section be affected by notice in any case where he would not have been so affected if this section had not been enacted.

(4) This section applies to purchases made either before on or after the thirty-first day of January One thousand nine hundred and five.

PAKT II I .—LEASES.

This Division to 1 4 . The provisions of this P a r t shal l apply to leases and sub-3'eyr Transfer leases of land under the Transfer of Land Act 1915 notwi ths tanding of Land Act. any th ing in t ha t Act. contained. Ib. J. 12.

Kent and bene- 1 6 . (1) R e n t reserved by a lease and the benefit of every covenant cov0enantseto o r provision therein contained having reference to the subject-mat ter run with thereof and on the lessee's p a r t to be observed or performed and every jr»*e»7is"' condition of re-entry and other condition therein contained shal l be 44 & 45 vict. annexed and incident to and shal l go wi th the reversionary es ta te in c. 4is. io. ^ e land or in any pa r t thereof immediately expectant on the te rm

(a) For a case in which the fact that a pipe Ritchie, 1907 V.L.E., 386. had been laid down by the Melbourne and Metro- A clause in a contract of sale by auction politan Board of Works was held to justify a of land provided that " the provisions of the refusal to accept title, see St. Mary's Hospital sub-section (now sub-section 6 of section 5) shall and Fogarty's Contract, 20 A.L.R., 518. not apply to the contract and notwithstanding the

Though a restrictive covenant be as a provisions of such sub-section the conveyance shall matter of law an incumbrance upon title to be perused, copied, examined, and the execution land, still, if it be shown as a matter of fact that thereof procured by the vendors' solicitors at the i t cannot prejudicially affect the enjoyment of a expense of the purchaser." particular portion of such land, the existence of Held, that the purchaser did not waive the such an incumbrance is not an objection sufficient benefit of the provisions of sub-section 6 by signing to justify the purchaser of suoh portion rejecting the contract that the question not being one the title, even though the covenant be registered " affecting the existence or validity of the con-undcr the Transfer of Land Act as an incum- tract," the purchaser could apply under section brance. 12 (formerly 10) for a declaration that the clause

Suyh a question of fact may be decided between was illegal and void.—In re Crook and others' vendor and purchaser on summons, although the Contract, 1909 V.L.K., 12. decision does not bind third parties.—Kenna v.


granted by the lease notwithstanding severance of that reversionary conveyancing estate and shall be capable of being recovered received enforced and Act 1904' taken advantage of by the person from time to time entitled subject to the term to the income of the whole or any part as the case may require of the land leased.

(2) This section shall apply to the benefit of every condition of re- Benefit of con-entry or forfeiture for a breach of any covenant or condition contained Dro"e\?toearun in a lease so as to enable the same to be enforced and taken advantage with reversion of by the person from time to time entitled subject to the term to the S°( wSST"/. income of the whole or any part as the case may require of the land i &2 Geo. v. leased although that person became by conveyance or otherwise so entitled after the condition of re-entry or forfeiture had become enforceable provided that he became so entitled on or after the first day of January One thousand nine hundred and thirteen, but this sub-section shall not render enforceable any condition of re-entry or other condition waived or released before the person became entitled as aforesaid.

16. The obligation of a covenant entered into by a lessor with obligation ot reference to the subject-matter of the lease shall if and as far as the nantsSio°ruen lessor has power to bind the reversionary estate immediately expectant wi"> reversion. on the term granted by the lease be annexed and incident to and shall ^"woT""! go with that reversionary estate or the several parts thereof notwith- *4

4*485 v

1iot-

standing severance of that reversionary estate and may be taken advantage of and enforced by the person in whom the term is from time to time vested by conveyance devolution in law or otherwise, and if and as far as the lessor has power to bind the person from time to time entitled to that reversionary estate the obligation aforesaid may be taken advantage of and enforced against any person so entitled.

17. Notwithstanding the severance by conveyance surrender or Apportionment otherwise of the reversionary estate in any land comprised in a lease "e ™rance°&o.oa

and notwithstanding the avoidance or cesser in any other manner of the «• »• IB. term granted by a lease as to part only of the land comprised therein, Ib-8- 12-every condition or right of re-entry and every other condition contained in the lease shall be apportioned and shall remain annexed to the severed parts of the reversionary estate as severed and shall be in force with respect to the term whereon each severed, part is reversionary or the term in any land which has not been surrendered or as to which the term has not been avoided or has not otherwise ceased in like manner as if the land comprised in each severed part or the land as to which the term remains subsisting as the case may be had alone originally been comprised in the lease.(a>

18. No lessee shall be prejudiced or damaged by payment of Temmt n t to any rent to any grantor transferror or assignor of any reversion or by without notice, breach of any condition for non-payment of rent before notice shall be n>- «• '«• given to him of such grant transfer or assignment by the grantee transferee or assignee.

(a) This section applies where the lease of land of a condition of re-entry.—Ge.rra.ty v. McQavin, was created before the Act, and an assignee of the 18 C.L.R., 152. . reversion of part of the land may take advantage

http://Ge.rra.ty

82G CONVEYANCING ACT 1915. [6 GEO. V.

sub-lessee, lb. s. 3.

conveyancing 1 9 . (1) I n the completion of any contract to g r a n t or assign a Act 1904 s. i7. t e r n i of years in land, whether derived or to be derived out of a free-nottobe,ree ° hold or leasehold estate, t he intended lessee or assign shal l not be grantro? ^sign- entit led to call for the ti t le to the freehold. menu of lease. (2) On a contract to g r a n t a lease for a te rm of years in land to c.e783e.&238 V'ot' be derived out of a leasehold interest with a leasehold reversion the Title to lease- intended lessee shall not have the r igh t to call for the t i t le to t h a t hold reversion • not to be reversion. deS^eby" (3) Under a contract to sell and assign a t e rm of years in land sub-iessee. derived out of a leasehold interest in land the intended assign shal l c.e4i4s.*34.6Vlct' n o t have t h e r igh t to call for the t i t le to the leasehold reversion. Nor <m sale by (4) This section applies only if and as far as a contrary

intention is not expressed in the contract and shall have effect subject to the terms of the contract and to the provisions therein contained.

(5) This section applies only to contracts made after the thirty-first day of January One thousand nine hundred and five.

Contract for 20 . (1) Where a lease is made under a power contained in a titi^t""^'0 'settlement, will, Act of Parliament, or other instrument, any pre-ib. «.i8. liminary contract for or relating to the lease shall not, for the purpose cfws?*?0'- of the deduction of title to an intended assign, form part of the title

or evidence of the title to the lease. (2) This section applies to leases made either before on or after the

thirty-first day of January One thousand nine hundred and five.

Forfeiture.

Restrictions on 2 1 . (1) A r igh t of re-entry or forfeiture under any proviso or against'6' s t ipulat ion in a lease for a breach of any covenant or condition in t h e forfeiture of lease shall not be enforceable by action or otherwise unless and unt i l ib. >. 19. ' the lessor serves on the lessee a notice specifying the particuln r breach see 44& 45 vict. complained of and if the breach is capable of remedy requir ing the

lessee to remedy the breach and in any case requi r ing the lessee to make compensation in money for the breach and the leasee fails wi thin a reasonable t ime thereafter or within the t ime not being less t h a n fourteen days fixed by the lease to remedy the breach if i t is capable of remedy and to make reasonable compensat ion in money to t h e satisfaction of the lessor for the breach/01)

This s u b j e c t i o n does not extend to a breach of any covenant or condition whereby or by means whereof ei ther alone or with o ther circumstances any licence under the Licensing Act 1915 is or may be endangered or is or may be liable to expire or be forfeited suspended taken away or refused,

ib. (2) W h e r e a lessor is proceeding by action or otherwise to enforce or has enforced wi thout t he aid of the Court or a County Court such a r igh t of re-entry or forfeiture the lessee m a y in t h e lessor 's action (if any) or in any action brought by himself or upon summons apply to the Court or a J u d g e thereof for relief, and the Court or J u d g e may g ran t or refuse relief as the Court or J u d g e having regard to the proceedings

ib. and conduct of the part ies under the foregoing provisions of this section and to all the other c i rcumstances t h inks fit, and in case of

(a) In the case of a covenant to keep in repair, the notice must state the particular condition whioh the tenant is required to remedy.—Qerraty v. McOavin, 18 C.L.R., 152.

JSTQ. 2633.] CONVEYANCING ACT 1915. 827

relief may grant it on such terms (if any) as to costs expenses damages Conveyancing

compensation penalty or otherwise including the granting of an m-Actl90i' junction to restrain any like breach in the future as the Court or Judge in the circumstances of each case thinks fit.

(3) This section applies although the proviso or stipulation under which the right of re-entry or forfeiture accrues is inserted in the lease in pursuance of the directions of any Act of Parliament.

(4) For the purposes of this section a lease limited to continue as long only as the lessee abstains from committing a breach of covenant shall be arid take effect as a lease to continue for any longer term for which it could subsist, but determinable by a proviso for re-entry on such a breach.

(5) This section does not extend— 65&66vict. c. 18 s 2.

(i.) To a covenant or condition against the assigning underletting parting with the possession or disposing of the land leased; or

(n.) To a condition for forfeiture on the insolvency of the lessee or on the taking in execution of the lessee's interest in any lease of—

(a) Agricultural or pastoral land. (b) Mines or minerals. (c) A house used or intended to be used as licensed

premises under the Licensing Act 1915. (d) A house let as a dwelling-house with the use of

any furniture books works of art or other chattels not being in the nature of fixtures.

(e) Any property with respect to which the personal qualifications of the tenant are of importance for the preservation of the value or character of the property or on the ground of neighbourhood to the lessor or to any person holding under him'.

(in.) In case of a mining lease to a covenant or condition for allowing the lessor to have access to or inspect books accounts records weighing machines tqr other things, or to enter or inspect the mine or the workings thereof.

(iv.) To a condition for forfeiture on the insolvency of the lessee, or on the taking in execution of the lessee's interest in any lease other than a lease mentioned in subsection (n.) of sub-section (5) of this section after the expiration of one year from the date of the insolvency or taking in execution provided the lessee's interest be not sold within such one year : But if the lessee's interest be sold within such one year this section shall extend and be applicable to such condition for forfeiture.

(6) When a lessee has assigned or transferred the lease with the consent of the lessor the insolvency of the lessee after such assignment or transfer shall not work a forfeiture or determine the lease unless


Conveyancing Act 1904.

Power of Court or Judjffc to

firotect under-e^sees on

forfeiture of superior leases. lb. s. 20.

Heal Property Act 1907 ». 9. 55 & 56 Vict. C. 13 8.4.

the condition for forfeiture or insolvency contained in the lease be therein expressly extended to insolvency of the lessee after the date of such assignment or transfer.

(7) This section shall not affect the law relating to re-entry or forfeiture or relief in case of non-payment of rent.

(8) This section applies to leases made either before on or after the thirty-first day of January One thousand nine hundred and five, and shall have effect notwithstanding any stipulation to the contrary.

22 . Where a lessor is proceeding by action or otherwise to enforce or has enforced a right of re-entry or forfeiture under any covenant proviso or stipulation in a lease, the Court or Judge thereof may on application by any person claiming as under-lessee any estate or interest in the property comprised in the lease or any part thereof either in the lessor's action (if any) or in any action brought by such person for that purpose or upon summons make an order vestiag for the whole term of the lease or any less term the property comprised in the lease or any part thereof in any persoi: entitled as under-lessee to any estate or interest in such property upon such conditions as to execution of any deed or other document payment of rent costs expenses damages compensation giving security or otherwise as the Court or Judge in the circumstances of each case thinks fit, but in no case shall any such under-lessee be entitled to require a lease to be granted to him for any longer term than he had under his original sub-lease.

costs of waiver 2 3 . A lessor shall be entitled to recover as a debt due to him Conveyancing fr°m a lessee or from the assignee or transferee of a lessee (where the Act 1004». 2i. assignment or transfer has been with the express consent of the lessor c.eil 1&2.66 Vict' and the breach of covenant or condition has occurred since the assign

ment or transfer), or partly from the lessee and partly from such assignee or transferee, and in addition to damages (if any) all reasonable costs and expenses properly incurred by the lessor in the employment of a solicitor and surveyor or valuer or otherwise in reference to any breach giving rise to a right of re-entry or forfeiture which at the request of the lessee is waived by the lessor by writing under his hand ; or from which the lessee is relieved under the provision of this Act either by the Court or Judge or by the operation of sub-section (1) of section twenty-one of this Act. And the lessor shall be so entitled to recover whether the lessee has or has not rendered forfeiture unenforceable against him under that sub-section.

No fine to be exacted for licence to assign. 76.«. 22. lb. s. 3.

24 . In all leases containing a covenant condition or agreement against assigning underletting or parting with the possession or disposing of the land or property leased without licence or consent such covenant condition or agreement shall unless the lease contains an expressed provision to the contrary be deemed to be subject to a proviso to the effect that such consent shall not be unreasonably withheld, and that no fine or sum of money in the nature of a fine shall be payable for or in respect of such licence or consent; but this proviso shall not preclude the right to require the payment of a reasonable sum in respect of any legal or other expense incurred in relation to such licence or consent.


2 5 . A lessor or lessee or their representatives respectively may at conveyancing any time or times and from time to time apply in a summary way to a Lessor0* *I23

Judge of the Supreme Court in chambers in respect of any claim for may obtain damages or any question arising out of or under or connected with the judg'e0as0to lease (not being a question affecting the existence or validity of the a S ^ a n d lease) and upon such application any party shall have the right to call oth«r questions evidence either orally or by affidavit on giving notice to the other lease, parties to the summons of intention so to do and the Judge shall make such order upon the application as to him appears just and shall order how and by whom all or any of the costs of and incident to the application shall be borne and paid.(a)

26 . For the purposes of this Part " lease" includes so far as Definition of circumstances will- admit any instrument of letting whether under ''under-lease" seal or not, also an original or derivative under-lease, also a grant &c-securing a rent by condition, also an agreement for a lease where n- '•2i-the lessee has become entitled to have his lease granted ; and "under- c

44i845i4Vl0t' lease" also includes an agreement for an "under-lease" where the 55&56viot. under-lessee has become entitled to have his under-lease granted ; and ac '13s '5 ' lessee includes, an original or derivative under-lessee and the heirs executors administrators and assigns of a lessee, also a grantee under such a grant as aforesaid, his heirs and assigns ; and an under-lessee includes any person deriving title under or from an under-lessee ; and a lessor includes an original or derivative under-lessor and the heirs executors administrators and assigns of a lessor, also a grantor as aforesaid and his heirs and assigns.

PART IV.—MORTGAGES.

27 . Except section thirty-two clause (iii.) of sub-section one of Mortgages section thirty-five and section forty-two the provisions of this Part shall ™j°ai%aA?ter

not apply to mortgages of land under the Transfer of Land Act 1915 wis excepted, effected by instruments of mortgage under that Act.

2 8 . (1) Where a mortgagor is entitled to redeem he shall by obligation on virtue of this Act have power to require the mortgagee instead of tran8?effnste0ad reconv eying and on the terms on which he would be bound to reconvey of reTOnvey'n8-to assign the mortgage debt and convey the mortgaged property to ff'^fviot. any th i rd person as the mortgagor directs ; and the mortgagee shall e. 41 s. 15. by vir tue of this Ac t be bound to assign and convey accordingly.

(2) This section does not apply in the case of a mortgagee being or having been in possession.

(3) This section applies to mortgages made either before on or after the thirty-first day of January One thousand nine hundred and five, and shall have effect notwithstanding any stipulation to the contrary.

29 . The right of the mortgagor under the last preceding section ReMnv*yanc» shall belong to and be capable of being enforced by each incumbrancer j".™0

33gage'

or by the mortgagor notwithstanding any intermediate incumbrance ; see 45 & 46 but a requisition of an incumbrancer shall prevail over a requisition Vlot-c-39s-12-of the mortgagor and as between incumbrancers, a requisition of a prior incumbrancer shall prevail over a requisition of a subsequent incumbrancer.

(a) Disputed questions of fact may be tried on a summons under this section.—Waters v. Daly, 1913 V.L.R., 130.


30 . (1) A mortgagor as long as his right to redeem subsists shall by virtue of this Act be entitled from time to time at reasonable times on his request and at his own cost, and on payment of the mortgagee's costs and expenses in this behalf by himself or his solicitor,

Conveyancing Act 1904 «. 34. Power for mortgagor to inspect title deeds. _ _ see44& 45vict. to inspect and make copies or abstracts of or extracts from the

documents of title or other documents relating to the mortgaged pro-

Ib.

Restriction on consolidation of mortgages. lb. 8. 35. See 44 & 45 Vict. c. 41 s. 17.

Foreclosure extinguishes right of action for mortgage debt and equity of redemption. lb. i. 36.

Leasing powers of mortgagor and of mortgagee in possession. lb. s. 37. Real Property Act 1014 >. 4.

perty in the custody or power of the mortgagee. (2) This section shall have effect notwithstanding any stipulation

to the contrary.

3 1 . (1) A mortgagor seeking to redeem any one mortgage shall by virtue of this Act be entitled to do so without paying any money due under any separate mortgage made by him or by any person through whom he claims on property other than that comprised in the mortgage which he seeks to redeem.

(2) This section shall have effect notwithstanding any stipulation to the contrary.

(3) This section applies only where the mortgages or one of them are or is made after the thirty-first day of January One thousand nine hundred and five.

32 . (1) On a decree judgment or order absolute for foreclosure the mortgagee shall be deemed to have taken the property mentioned in such decree judgment or order in full satisfaction of the mortgage debt and his right or equity to bring any action or to take other proceedings for the recovery of the mortgage money from the debtor surety or other person shall be extinguished and the right or equity of the mortgagor to redeem the said property shall also be extinguished.

(2) In the case of mortgages of land under the Transfer of Land Act 1915 "order absolute" includes an order for foreclosure under the hand of the Registrar when entered in the register book.

(3) Nothing in this section shall be deemed to disentitle the mortgagee to obtain foreclosure of any other property over which he holds security by way of mortgage for the said money or part thereof or to enforce all or any rights powers and remedies expressed or implied in such mortgage except the right to sue the mortgagor or any surety for the mortgagor either for the mortgage money or on any bill or note given as security for the mortgage money as if this section had not been made law.'

(4) This section applies to foreclosures obtained either before on or after the thirty-first day of January One thousand nine hundred and five save that where after foreclosure an action to recover the mortgage money is pending at such date or where prior to such date a judgment has been obtained or a settlement or compromise made the rights and liabilities of the respective parties shall not be affected by this section.

(5) This section shall have effect notwithstanding any stipulation to the contrary.

3 3 . (1) A mortgagor of land while in possession shall as against every incumbrancer have by virtue of this Act power to make from time to time any such lease of the mortgaged land or any part thereof as is in this section described and authorized. For the purposes of this sub-section the expression "mortgagor" does not include air incumbrancer deriving title under the original mortgagor.


(2) A mortgagee of land while in possession shall as against all conveyancing prior incumbrancers (if any) and as against the mortgagor have by Actim-virtue of this Act power to make from time to time any such lease as aforesaid.

(3) The lease which this section authorizes is—A lease for any term not exceeding seven years.

(4) Every person making a lease under this section may execute and do all assurances and things necessary or proper in that behalf.

(5) Every such lease shall be made to take effect in possession not later than three months after its date.

(6) Every such lease shall reserve the best rent that can reasonably be obtained regard being had to the circumstances of the case but without any fine being taken or the rent made payable in advance.

(7) Every such lease shall contain a covenant by the lessee for payment of the rent and a condition of re-entry on the rent not being paid within a time therein specified not exceeding thirty days.

(S) A counterpart of every such lease shall be executed by the lessee and delivered to the lessor of which execution and delivery the execution of the lease by the lessor shall in favour of the lessee and all persons deriving title under him be sufficient evidence.

(9) In case of a lease by the mortgagor he shall within one month after making the lease deliver to the mortgagee or where there are more than one to the mortgagee first in priority a counterpart of the lease duly executed by the lessee, t u t the lessee shall not he concerned to see that this provision is complied with.

(10) A contract to make or accept a lease under this section may be enforced by or against every person on whom the lease if granted would be binding.

(11) This section applies only if and as far as a contrary intention is not expressed by the mortgagor and mortgagee in the mortgage deed or otherwise in writing and shall have effect subject to the terms of the mortgage deed or of any such writing and to the provisions therein contained.

(12) Nothing in this Act shall prevent the mortgage deed from reserving to or conferring on the mortgagor or the mortgagee or both any further or other powers of leasing or having reference to leasing and any further or other powers so reserved or conferred shall be exercisable as far as may be as if they were conferred by this Act and with all the like incidents effects and consequences unless a contrary intention is expressed in the mortgage deed.

(13) Nothing in this Act shall be construed to enable a mortgagor or mortgagee to make a lease for any longer term or on any other conditions than such as could have been granted or imposed by the mortgagor with the concurrence of all the incumbrancers if this Act had not been passed.

(14) This section applies only in case of a mortgage made after the thirty-first day of January One thousand nine hundred and five, but the provisions thereof or any of them may by agreement in writing made after such date between mortgagor and mortgagee be applied to a mortgage made before such date so nevertheless that any such agreement shall not prejudicially affect any right or interest of any mortgagee not joining in or adopting the agreement.


Conveyancing Act 1904

(15) The provisions of this section referring to a lease shall be construed to extend and apply as far as circumstances admit to any letting and to an agreement whether in writing or not for leasing or letting.

(16) The power of leasing conferred by this section shall after a receiver of the income of the mortgaged property or of any part thereof has been appointed by a mortgagee under this Act, aud so long as the receiver acts be exercisable by such mortgagee instead of by the mortgagor as respects any land affected by the receivership in like manner as if such mortgagee was in possession of the land.

Powers (with a view to the grant of an authorized lea«e) of mortgagor and mortgagee in possession to accept surrenders of leases.

Real Property Act 1914 «. 4. 1 & 2 Geo. V. c. 87 s. 3.

34. (1) For the purpose only of enabling a lease authorized under the last preceding section or under any agreement made pursuant to such section or by the mortgage deed (in this section referred to as an authorized lease) to be granted a mortgagor of laud while in possession shall in like manner as if the legal estate were vested in him and as against every incumbrancer have by virtue of this Act power to accept from time to time a surrender of any lease of the mortgaged land or any part thereof comprised in the lease with or without an exception of all or any of the mines and the minerals therein or in respect of mines and minerals or any of them and on a surrender of part only of the land or mines and minerals leased the rent may be apportioned.

(2) For the same purpose a mortgagee of land while in possession shall in like manner and as against all prior or other incumbrancers (if any) and as against the mortgagor have by virtue of this Act power to accept from time to time any such surrender as aforesaid.

(3) On a surrender of part only of the land or mines and minerals leased the original lease may be varied : Provided that the lease when varied would have been valid as an authorized lease if granted by the person accepting the surrender and on a surrender and the making of a new or other lease whether for the same or for any extended or other term and whether subject or not to the same or to any other covenants provisions or conditions the value of the lessee's iuterests in the lease surrendered may subject to the provisions of this section be taken into account iu the determination of the amount of the rent to be reserved and of the nature of the covenants provisions and conditions to be inserted in the new or other lease.

(4) Nothing in this section shall where any consideration (except an agreement to accept an authorized lease) for the surrender is given by or on behalf of the lessee to or on behalf"of the person accepting the surrender authorize a surrender to a mortgagor without the consent of the incumbrancers or authorize a surrender to a second or subsequent incumbrancer without the consent of any prior incumbrancer.

(5) No surrender shall by virtue of this section be rendered valid unless—

(a) an authorized lease is granted of the whole of the land or mines and minerals comprised in the surrender to take effect in possession immediately or within one month after the date of the surrender; and


(b) the term certain or interest granted by the new lease is not Real Property less in duration than the unexpired term or interestAcl 1914' which would have been subsisting under the original lease if t ha t lease had not been surrendered ; and

(c) where the whole of the land mines and minerals originally leased has been surrendered the rent reserved by the new lease is not less than the rent which would have been payable under the original lease if it had not been surrendered ; or where part only of the land or mines and minerals has been surrendered the aggregate rents respectively remaining payable or reserved under the original lease and new lease are not less than the rent which would have been payable under the original lease if no partial surrender had been accepted.

(6) A contract to make or accept a surrender under this section may be enforced by or against every person on whom the surrender if completed would be binding.

(7) Sub-sectious (11) (14) and (15) of the last preceding section shall have effect as if they were re-enacted in this section except that for the words ''thirty-first day of January One thousand nine hundred and five" in sub-section (14) there shall be read the words "twenty-seventh day of September One thousand nine hundred and fourteen."

(8) Nothing in this section shall prevent the mortgage deed from reserving to or conferring on the mortgagor or mortgagee or both any further or other powers relating to the surrender of leases ; and any further or other powers so conferred or reserved shall be exercisable as far as may be as if they were conferred by this Act and with the like results unless a contrary intention is expressed in the mortgage deed.

(9) Nothing in this section shall operate to enable a mortgagor or mortgagee to accept a surrender which could not have been accepted by the mortgagor with the concurrence of all the incumbrancers if the Real Property Act 1914 and this Act had not been passed.

(10) For the jrarposcs of this section the expression " mortgagor " does not include an incumbrancer deriving title under the original mortgagor.

(11) The power of accepting surrenders conferred by this section shall after a receiver of the income of the mortgaged property or of any part thereof has been appointed by a mortgagee under this Act and so long as the receiver acts be exercisable by such mortgagee instead of by the mortgagor as respects any land affected by the receivership in like manner as if such mortgagee was in possession of the land.

Sale.—Insurance. 3 5 . (1) A mortgagee where the mortgage is made by deed or in Powers incident

the case of paragraph (iii.) is under the Transfer of Land Act 1915 mteresto" shall by virtue of this Act have the following powers to the like extent •norts<»gee_ as if they had been in terms conferred by the mortgage deed but not A°dwo7l. sll. further, namely :— see 44 & 45

' J Vict. c. 41 8. 19.

(i.) A power when the mortgage money has become due to sell or to concur with any other person in selling 4he mortgaged property or any part thereof either subject to prior charges or not and either together or in lots by

VOL. i.—3 G


Conveyancing public auction or by private contract subject to such Actl00i- conditions respecting title or evidence of title or

other matter as he (the mortgagee) thinks fit with power to vary any contract for sale and to buy in at an auction or to rescind any contract for sale and to re-sell without being answerable for any loss occasioned thereby, with power to make such roads streets and passages aud grant such easements of right of way or drainage over the same as the circumstances of the case may require and he thinks fit ; and

(ii.) A power at any time after the date of the mortgage deed to insure and keep insured against loss or damage by fire any building or any effects or property of an insurable nature whether affixed to the freehold or not being or forming part of the mortgaged property and the premiums paid for any such insurance shall be a charge on the mortgaged property in addition to the mortgage money and with the same priority and with-interest at the same rate as the mortgage money.

Conveyancing (iii-) A power when the mortgage money has become due to 0(19125 s ' appoint a receiver of the income of the mortgaged pro

perty or of any part thereof. (2) The provisions of this Act relating to the foregoing powers

comprised either in this section or in any subsequent section regulating the exercise of those powers may be varied or extended by the mortgage deed and as so varied or extended shall as far as may be operate in the like manner aud with all the like incidents effects and consequences as if such variations or extensions were contained in this Act.

(3) This section applies only if and as far as a contrary intention is not expressed in the mortgage deed, and shall have effect subject to the terms of the mortgage deed aud to the provisions therein contained.

(4) This section applies only where the mortgage deed is executed after the thirty-first day of January One thousand nine hundred and five.

Powers incident 36 . (1) The power of sale conferred on a mortgagee by the last interest' preceding section shall include the following powers as incident mortgages- thereto namely :— i&2Geo v M ^ P o w e r t o impose or reserve or make binding as far as the c 37s. 4.' ' law permits by covenant condition or otherwise on the

unsold part of the mortgaged property or any part thereof or on the purchaser and any property sold any restriction or reservation with respect to building on or other user of laud or with respect to mines and minerals or for the purpose of the more beneficial working thereof or with respect to any other thing.

(ii.) A power to sell the mortgaged property or any part thereof or any mines aud minerals apart from the surface—

(a) with or without a grant or reservation of rights of way rights of water easements rights and privileges for or connected with building or


other purposes in relation to the property convenattctng remaining in mortgage or any part thereof or Act1912-to any property sold ;

(b) with or without an exception or reservation of all or any of the mines and minerals in or under the mortgaged property and with or without a grant or reservation of powers of working way-leaves or rights of way rights of water and drainage and other powers easements rights and privileges for or connected with mining purposes in relatiou to the property remaining unsold or any part thereof or to any property sold ;

(c) with or without covenants by the purchaser to expend money on the land sold.

(2) Sub-sections (2) and (3) of the last preceding section shall apply to the foregoing powers conferred by this section.

(3) This section applies only where the mortgage deed is executed on or after the first clay of January One thousand nine hundred and thirteen.

37 . A mortgagee shall not exercise the power of sale conferred by Regulation of this Act unless and until— powefof aie.

(i.) Notice requiring payment of the mortgage money has been ^^^"io served on the mortgagor or one of several mortgagors See 44 & 4j and default has been made in payment of the mortgage vict- °-41 s-20-money, or of part thereof, for one month after such service ; or

(ii.) Some interest under the mortgage is in arrear and unpaid for one month after becoming due ; or

(iii.) There has been a breach of some provision contained in the mortgage deed of in this Division of this Part, and on the part of the mortgagor, or of some person concurring in making the mortgage, to be observed or performed other than and besides a covenant for payment of the mortgage money or interest thereon.

3 8 . (1) A mortgagee exercising the power of sale conferred Conveyance

by this Act shall have power by deed to convey the property sold for Hie!pt &°' °" such estate and interest therein as is the subject of the mortgage, freed n. s. 40. from all estates interests and rights to which the mortgage has priority, u>. s. 21. but subject to all estates interests and rights which have priority to the mortgage.

(2) Where a conveyance is made in professed exercise of the power of sale conferred by this Act, the title of the purchaser shall not be impeachable on the ground that no case had arisen to authorize the sale, or that due notice was not given, or that the power was otherwise improperly or irregularly exercised, but any person damnified by an unauthorized or improper or irregular exercise of the power shall have his remedy in damages against the person exercising the power.

(3) The money which is received by the mortgagee, arising from the sale, after discharge of prior . incumbrances to

3 G 2



Conveyancing Act 1912 «. 6 (2).

which the sale is not made subject if any or after payment into Court under this Act of a sum to meet any prior incumbrance shall be held by him in trust to be applied by him, first in payment of all costs charges and expenses properly incurred by him as incident to the sale or any attempted sale or otherwise ; and secondly in discharge of the mortgage money interest and costs and other money if any due under the mortgage and the residue of the money so received shall be paid to the person entitled to the mortgaged property or authorized to give receipts for the proceeds of the sale thereof.

(4) The power of sale conferred by this Act may be exercised by any person for the time being entitled to receive and give a discharge for the mortgage money.

(5) The power of sale conferred by this Act shall not affect the right of foreclosure.

(6) The mortgagee his executors administrators or assigns shall not be answerable for any involuntary loss happening in or about the exercise or execution of the power of sale conferred by this Act or of any trust connected therewith or (in the case of mortgages executed after the first day of January One thousand nine hundred and thirteen) of any power or provision contained in the mortgage deed.

(7) At any time after the power of sale conferred by this Act has become exercisable the person entitled to exercise the same may demaud and recover from any person other than a person having in the mortgaged property an estate interest or right in priority to the mortgage all the deeds and documents relating to the property or to the title thereto which a purchaser under the power of sale would be entitled to demand and recover from him.

Purchaser not 39 . Upon any sale made in professed exercise of the power of sale FnqmrTasto0 conferred on mortgagees by this Act or any Act hereby repealed a certain matters, purchaser is not and never has been eitlier before or on conveyance iV"G(1) v concerned to sfe or inquire whether a case has or had arisen to c. 37 a. 5.' ' authorize the sale or due notice has or had been given or the power is

or was otherwise properly and regularly exercised.

Mortgagee's receipts discharges &c. Conveyancing Act 1904 s. 41. 44 & 45 Vict, c. 41 s. 22.

40 . (1) The receipt in writing of a mortgagee shall be a sufficient discharge for any money arising under the power of sale conferred by this Act, or for any money or securities comprised in his mortgage or arising thereunder, and a person pa.ying or transferring the same to the mortgagee shall not be concerned to inquire whether any money remains due under the mortgage or to the application of the money or securities so paid or transferred.

(2) Money received by a mortgagee under his mortgage or from the proceeds of securities comprised in his mortgage shall be applied in like manner as in this Act directed respecting money received by him arising from a sale under the power of sale conferred by this Act; but with this variation that the costs charges and expenses payable shall include the costs charges and expenses properly incurred of recovering and receiving the money or securities and of conversion of securities into money instead of those incident to sale.


4 1 . (1) The amount of an insurance effected by a mortgagee conveyancing against loss or damage by fire under the power in that behalf con- ^""^l"'^2 ' ferred by this Act shall not exceed the amount specified in the mortgage applit atton of

deed or if no amount is therein specified the full insurable value of money"06

the buildings upon the mortgaged land or the amount owing to the see 44 & 46 viot. mortgagee in respect of the mortgage. °"14 "•23,

(2) An insurance shall not under the power conferred by this Act be effected by a mortgagee in any of the following cases, namely :—

(i.) Where there is a declaration in the mortgage deed that no insurance is required :

(ii.) Where an insurance is kept up by or on behalf of the mortgagor in accordance with the mortgage deed :

(iii.) Where the mortgage deed contains no stipulation respecting insurance and an insurance is kept up by or on behalf of the mortgagor to the amount in which the mortgagee is by this Act authorized to insure.

(3) All money received on an insurance effected under the mortgage deed or under this Act shall if the mortgagee so requires be applied in making good the loss or damage in respect of which the money is received.

(4) Without prejudice to any obligation to the contrary imposed by law or by special contract a mortgagee may require that all money received on an insurance effected under the mortgage deed or under this Act be applied in or towards discharge of the money due under his mortgage.

4 2 . (1) A mortgagee entitled to appoint a receiver under the Appointment power in that behalf conferred by this Act shall not appoint a receiver remuneration until .he has become entitled to exercise the power of sale conferred by ^it"' '63 of

this Act but may then by writing under his hand appoint such person conveyancing >i as he thinks fit to be receiver. Aet 1912 *•14-

(2) The receiver shall be deemed to be the agent of the mortgagor ; and the mortgagor shall be solely responsible for the receiver's acts or defaults unless the mortgage deed otherwise provides.

(3) The receiver shall have power to demand and recover all the income of the property of which he is appointed receiver by action distress or otherwise in the name either of the mortgagor or of the mortgagee to the full extent of the estate or interest which the mortgagor could dispose of and to give effectual receipts accordingly for the same.

(4) A person paying money to the receiver shall not be. concerned to inquire whether any case has happened to authorize the receiver to act.

(5) The receiver may be removed and a new receiver may be appointed from time to time by the mortgagee by writing under his hand.

(6) The receiver shall be entitled to retain out of any money received by him for his remuneration and in satisfaction of all costs charges and expenses incurred by him as receiver a commission at such rate not exceeding five per centum on the gross amount of all money received as is specified in his appointment and if no rate is so specified


conveyancing then at the rate of five per centum on that gross amount or at such Act i9i2. higher rate as the Court thinks fit to allow on application made by

him for that purpose. (7) The receiver shall if so directed in writing by the mortgagee

iusure and keep insured against loss or damage by fire out of the money received by him any building effects or property comprised in the mortgage whether affixed to the freehold or not being of an insurable nature.

(8) The receiver shall apply all money received by him as follows, namely :—

(a) In discharge of all rents taxes rates and outgoings whatever affecting the mortgaged property ; and

(b) In keeping down all annual sums or other payments and the interest on all principal sums having priority to the mortgage in right whereof he is receiver ; and

(c) In payment of his commission and of the premiums on fire life or other insurances if any properly payablo under the mortgage deed or under this Act and the cost of executing necessary or proper repairs directed in writing by the mortgagee ; and

(d) In payment of the interest accruing due in respect of any principal money due under the mortgage,

and shall pay the residue of the money received by him to the person who but for the possession of the receiver would have been entitled to receive the income of the mortgaged property or who. is otherwise entitled to that property.

Action Respecting Mortgage. saieofmprt- 4 3 . (1) Any person entitled to redeem mortgaged property fi?M«iOTifOTrty m a y n a v e a j u d g m e n t or order for sale ins tead of for redempt ion in foreclosure &c. a n action brought by him either for redemption alone or for sale-alone A°awM>»itti o r f° r s a^e o r redemption in the alternative. 44 & 45 viot. (2) I n any action whe ther for foreclosure or for redempt ion or «. 41 s. 25. £Q r g a j e Qr for £] ie r aj,sing a n t i payment in any manner of mortgage

money, the Court on the request of the mortgagee or of any person interested either in the mortgage money or in the right of redemption, and notwithstanding the dissent of any other person and notwithstanding that the mortgagee or any person so interested does not appear in the action and without allowing any time for redemption or for payment of any mortgage money, may if it thinks fit direct a sale of the mortgaged property on such terms as it thinks fit including if it thinks fit the deposit in the Court of a reasonable sum fixed by the Court to meet the expenses of sale and to secure performance of the terms.

(3) But in an action brought by a person interested in the right of redemption and seeking a sale, the Court may on the application of any defendant direct the plaintiff to give such security for costs as the Court thinks fit, and may give the conduct of the sale to any defendant, and may give such directions as it thinks fit respecting the costs of the defendants or any of them.

(4) In any case within this section the Court may if it thinks fit direct a sale without previously determining the priorities of incumbrances.


Statutory Mortgage. 44 . (1) A mortgage of freehold or leasehold land may he made conwymmng

by a deed expressed to be made by way of statutory mortgage being in p m°of statu-the form given in Part I. of the Second Schedule to this Act, with tory mortgage such variations and additions (if any) as circumstances may require, schSed™iei

and the provisions of this section shall apply thereto. see 44 & 45 vict. (2) There shal l be deemed to be included and there shal l by virtue °'418 '2e '

of this Act be implied in the mortgage deed— First, a covenant with the mortgagee by the person expressed

therein to convey as mortgagor to the effect following, namely :— That the mortgagor will ou the stated day pay to the mortgagee

the stated mortgage money with interest thereon in the meantime at the stated rate and will thereafter if and as long as the mortgage money or any part thereof remains uupaid pay to the mortgagee interest thereon or on the unpaid part thereof at the stated rate by equal quarterly payments the first thereof to be made at the end of three calendar months from the day stated for payment of the mortgage money :

Secondly, a proviso to the effect following, namely :— That if the mortgagor on the stated day pays to the mortgagee

the stated mortgage money with interest thereon in the meantime at the stated rate, the mortgagee at any time thereafter at the request and cost of the mortgagor shall re-convey the mortgaged property to the mortgagor or as he shall direct.

4 5 . (1) A transfer of a statutory mortgage may be made by a Forms of statu-deed expressed to be made by way of statutory transfer of mortgage ofmo'rtrago'in being in such one of the three forms (A) and (B) and (C) given in second schedule. Part I I . of the 'Second Schedide to this Act as may be appropriate to Ib' *•46' the case, with such variations and additions (if any) as circumstances I b s '2 7 ' may require and the provisions of this section shall apply thereto.

(2) In whichever of those three forms the deed of transfer is made it shall have effect as follows, namely :—

(i.) There shall become vested in the person to whom the benefit of the mortgagee is expressed to be transferred who with his executors administrators and assigns is hereafter in this section designated the transferee the right to demand sue for recover and give receipts for the mortgage money or the unpaid part thereof, and the interest then due (if any) and thenceforth to become due thereon and the benefit of all securities for the same and the benefit of and the right to sue on all covenants with the mortgagee and the right to exercise all powers of the mortgagee:

(ii.) All the estate and interest subject to redemption of the mortgagee in' the mortgaged land shall vest in the transferee subject to redemption.

(3) If the deed of transfer is made in the form (B) there shall see 44 & 45 vict. also be deemed to be included and there shall by virtue of this °-41 s'27-



Implied covenants joint and several. lb a. 48 44 & 45 Vict. 0. 41 s. 28.

Act be implied therein a covenant with the transferee by the person expressed to join therein as covenantor to the effect following, namely :— -

That the covenantor will on the next of the days by the mortgage deed fixed for payment of interest pay to the transferee the stated mortgage money or so much thereof as then remains unpaid with interest thereon or on the unpaid part thereof in the meantime at the rate stated in the mortgage deed and will thereafter as long as the mortgage money or any part thereof remains unpaid pay to the transferee interest on that sum or the unpaid part thereof at the same rate on the successive days by the mortgage deed fixed for payment of interest.

(4) If the deed of transfer is made in the form (C) it shall by virtue of this Act operate not only as a statutory transfer of mortgage but also as a statutory mortgage, and the provisions of this section shall have effect in relation thereto accordingly.

46 . In a deed of statutory mortgage or of statutory transfer of mortgage where more persons than one are expressed to convey as mortgagors or to join as covenantors the implied covenant on their part shall be deemed to be a joint and several covenant by them and where there are more mortgagees or more transferees than one the implied covenant with them shall be deemed to be a covenant with them jointly unless the amount secured is expressed to be secured to them in shares or distinct sums in which latter case the implied covenant with them shall be deemed to be a covenant with each severally in respect of the share or distinct sum secured to him.

4 7 . A re-conveyance of a statutory mortgage may be made by a deed expressed to be made by way of statutory re-conveyance of mortgage being in the form given in Part I I I . of the Second Schedule to this Act with such variations and additions (if any) as circumstances may require.

PAET V.—RENT CHARGES AND OTHER ANNUAL SUMS.

Remedies tor 4 8 . (1) Where a person is entitled to receive out of any land or ammauums out of the income of any land anv annual sum pavable half-yearly or charged on ia..d. otherwise whether charged on the land or on the "income of the land XcUouTf' and whether by way of rent charge or otherwise not being rent incident ib.s. 44. to a reversion then subject and without prejudice to all estates interests

and r ights having priori ty to the annual sum the person entitled to receive the same shall have such remedies for recovering and compell ing payment of the same as are described in this section as far as those remedies m igh t have been conferred by the ins t rument under which the annual sum arises but not further.

(2) I f a t any t ime the annual sum or any pa r t thereof is unpaid for twenty-one days next after the t ime appointed for any payment in respect thereof the person entitled to receive the annual sum may enter into and dis t ra in on the land charged or any par t thereof and dispose according to law of any distress found to the intent tha t thereby or otherwise the annual sum and all arrears thereof and all costs and expenses occasioned by non-payment thereof may be fully paid.

Form of reconveyance of statutory mortgage in second Schedule. lb. s. 47. lb. s. 29.


(3) If at any time the annual sum or any part thereof is unpaid Real Property for forty days next after the time appointed for any payment in respectA a l 9 U-thereof then although no legal demand has been made for payment thereof the person entitled to receive the annual sum may enter into possession of and hold the land charged or any part thereof and take the income thereof until thereby or otherwise the annual sum* and all arrears thereof due at the time of his entry or afterwards becoming due during his continuance in possession and all costs and expenses occasioned by non-payment of the annual sum are fully paid; and such possession when taken shall be without impeachment of waste.

(4) In the like case the person entitled to the annual charge whether taking possession or not may also by deed demise the land charged or any part thereof to a trustee for a term of years with or without impeachment of waste on trust by mortgage or sale or demise for all or any part of the term of the land charged or of any part thereof or by receipt of the income thereof or by all or any of those means or by any other reasonable means to raise and pay the annual sum and all arrears thereof due or to become due and all costs and expenses occasioned by non-payment of the annual sum or incurred in compelling or obtaining payment thereof or otherwise relating thereto including the costs of the preparation and execution of the deed of demise and the costs of the execution of the trusts of that deed and the surplus (if any) of the money raised or of the income received under the trusts of that deed shall be paid to the person for the time being entitled to the land therein comprised in reversion immediately expectant on the term thereby created.

(5) This section applies only if and as far as a contrary intention is not expressed in the instrument under which the annual sum arises and shall have effect subject to the terms of that instrument and to the provisions therein contained.

(6) This section does not apply to annuities charged on land under the Transfer of Land Act 1915 by instruments thereunder.

4 9 . (1) The rule of law relating to perpetuities does not apply to Remedies tor any powers or remedies conferred by the last preceding section nor to anmiaTsiuL the same or like powers or remedies conferred by any instrument for chafed on inmi recovering or compelling the payment of any annual sum within the16-*-3-meaning of that section. c.Vs0™'V'

(2) The powers and remedies conferred by the last preceding section are exercisable whether the annual sum is created under a power contained in an instrument coming into operation before or after the commencement of this Act and take effect unless the instrument creating the power or under which the annual sum is created otherwise directs.

(3) This section applies to powers and remedies conferred by or implied in an instrument executed before as well as after the commencement of this Act.

PART VI.—LONG TEEMS.

50. (1) Where a residue unexpired of not less than two hundred Enlargement of

years of a term which as originally created was for not less than three termTnt°o \°"s

hundred years and whether having as the immediate reversion thereon sin|Ple-the freehold or not is subsisting in land whether being the whole land AcTinTs"w. originally comprised in the term or part only thereof without any trust Ibs-65-

45 & 46 Vict.

842 CONVEYANCING ACT 1913. [6 G E O . V .

conveyancing or Tight of redempt ion affecting t he t e r m in favour of t h e freeholder or Act 1912. other person entitled in reversion expectant on the term and without

any rent or with merely a peppercorn rent or other rent having no money value incident to reversion or having had a rent not being merely a peppercorn rent or other rent having no money value originally so incident which subsequently has been released or lias become barred by lapse of time or has in any other way ceased to be payable and such term is not liable to be determined by re-entry for condition broken and is not a term created by snbdemise out of a

45&46viot. superior term not itself capible of being enlarged into a fee-simple o.39s. ii. £j j e u ^ e +.crm m a y ke enlarged into a fee simple in the manner and

subject to the restrictions in this section provided.

(2) Each of the following persons namely:—

(a) Any person beneficially entitled in right of the term whether subject to any incumbrance or not to possession of any land comprised in the term ;

(i) Any person being in receipt of income as trustee in right of the term or having the term vested in him in trust for sale whether subject to any incumbrance or not;

(c) Any person in whom as personal representative of any deceased person the term is vested whether subject to any incumbrance or not,

shall as far as regards the land to which he is entitled or in which he is interested in right of the term in any such character as aforesaid have power by deed to declare to the effect that from and after the execution of the deed the term shall be enlarged into a fee-simple.

(3) Such deed shall be duly registered in the office of the Registrar-General of Victoria and thereupon by virtue of the deed and of this Act the term shall become and be enlarged accordingly and the person in whom the term was previously vested shall acquire and have in the land a fee-simple instead of the term.

(4) The estate in fee simple so acquired by enlargement shall be subject to all the same trusts, powers, executory limitations over, rights and equities and to all the same covenants and provisions relating to user and enjoyment and to all the same obligations of every kind as the term would have been subject to if it had not been so enlarged.

(5) But where any land so held for the residue of a term has beeu settled in trust by reference to other land being freehold laud so as to go along with that other land as far as the law permits and at the time of the enlargement the ultimate beneficial interest in the term whether subject to any subsisting particular estate or not has not become absolutely and indefeasibly vested in any person then the estate in fee simple acquired as aforesaid shall without prejudice to any conveyance for value previously made by a person having a contingent or

' defeasible interest in the term be liable to be and shall be conveyed and settled in like manner as the other land being freehold land aforesaid and uutil so conveyed and settled shall devolve beneficially as if it had been so conveyed and settled.

(6) This section applies to every such term as aforesaid subsisting at or after the first day of January One thousand nine hundred and thirteen.

CONVEYANCING ACT 1915. 843

PAET VII.—CONSTRUCTION AND EFFECT OF DEEDS AND OTHER INSTRUMENTS.

5 1 . (1) I t is hereby declared that the use of the word grant conveyancing is not necessary in order to convey tenements or hereditaments corpo- us^w^d0

r e a l 01' i n c o r p o r e a l . irrani unneces-sary.

(2) This section applies to conveyances made before on or after u & 46 Vlct. the thirty-first day of January One thousand nine hundred and five. c-418 49-

52. (1) Property real or personal including a thing in action conveyance by may be conveyed by a person to himself jointly with another p e r S O n hjnt.elf and

by the like means as it might be conveyed by one person to another, hu°ban™to ufe and may in like manner be conveyed by a husband to his wife and by &=• a wife to her husband alone or jointly with another person. Ib- '•57-

(2) Except in the case of conveyances of personal property In^mments

(including chattels real) this section applies only to conveyances made ^c< 1890 after the thirty-first day of January One thousand nine hundred and five.

5 3 . In the construction of any gift or limitation of real or personal Tenancy by property made on or after the twenty-eighth clay of September One thou- ^"a"p^S'w( sand nine hundred and fourteen by any will deed or other instrument Act 1910.12. to more than one individual jointly or in common a husband and wife shall not be regarded as one person for the purpose of deciding the proportionate shares of such individuals respectively unless a contrary intention appears in the instrument..

54 . (1) A body corporate shall be capable of acquiring and Power for holding any real or personal property in joint tenancy in the same now'property0

manner as if it were an individual, and where a body corporate and an as J°int tenants-individual or two or more bodies corporate become entitled to any such corporate (Joint property under circumstances or by virtue of any instrument which ^ j ^ T ' A a

would if the body corporate had beeu an individual have created a joint 02 & 63 vict. tenancy they shall be entitled to the property as joint tenants. "•20s- *•

Provided that the acquisition and holding of property by a body corporate in joint tenancy shall be subject to the like conditions and restrictions as attach to the acquisition and holding of property by a body corporate in severalty.

(2) Where a body corporate is joint tenant of any property then on its dissolution the property shall devolve on the other joint tenant.

5 5 . (1) In a deed it shall be sufficient in the limitation of an wordsot estate in fee simple to use the words in fee or fee simple without the fC'e

1.ltatlon m

word heirs or to use the words in tail or in tail male or in tail female, conveyancing without the words heirs of the body or heirs male of the body or heirs Actime-58-J? 1 J? i.1 1, J See 44 & 45

female of the body. viccc.4is.6i. (2) This section applies only to deeds executed after the thirty-

first day of January One thousand nine hundred and five. 56 . (1) A person to whom any power whether coupled with an collateral

interest or not is given may by deed disclaim release or contract not to po"'ers' exercise the power ; and after such disclaimer release or contract he I b s

s '62 ' shall not be capable of exercising or joining in the exercise of the 44 & 45 vict. power. °-39 "•c-

http://viccc.4is.6i

844 CONVEYANCING ACT l ' J l i . [6 GEO. V.

Conveyancing (2) On such disclaimer release or contract aforesaid the power AU i»04. m a y ^ 0 e x e r c i s e c j \yy the other or others or the survivors or survivor

of the others of the persons to whom the power is given unless the contrary is expressed in the ins t rument creat ing the power.

(3) This section applies to powers created by ins t ruments coming into operation either before on or after the thir ty-first day of J a n u a r y One thousand nine hundred and five.

Appointments 5 7 . (1) No appointment which after the thirty-first day of notwithstanding January One thousand nine hundred and five lias been or is made in one or inoio exercise of any power to appoint any property real or personal amongst VT^o*0111 several objects shall be invalid at law or in equity on the ground that

any object of such power has beeu altogether excluded but every such appointment shall be valid and effectual notwithstanding that any one or more of the objects shall not thereby or in default of appointment take a share or shares of the property subject to such power.

(2) Nothing in this section contained shall prejudice or affect any provision in any deed will or other instrument creating any power which declares the amount or the share or shares from which no object of the power shall be excluded or some one or more object or objects of the power shall not be excluded.

58 . No appointment which either from or after the passing of the Equity Practice Statute, 1865 was made in exercise of any power or authority to appoint any property real or personal amongst several objects shall be invalid or impeached in equity on the ground that an unsubstantial illusory or nominal share only was thereby appointed to or left unappointed to devolve upon any one or more of the objects of such power ; but every such appointment shall be valid and effectual in equity as well as at law, notwithstanding that any one or more of the objects shall not thereunder or in default of such appointment take more than an unsubstantial illusory or nominal share of the property subjected to such power.

Nothing in this section shall prejudice or affect any provision in any deed will or other instrument creating any such power as aforesaid which declares the amount of the share or shares from which no object of the power shall be excluded.

Nothing in this section shall be construed deemed or taken at law or in equity to give any other validity force or effect to any appointment than such appointment would have had if a substantial share of the property affected by the power had been thereby appointed to or left unappointed to devolve upon any object of such power.

59. (1) No purchase made bond-fide and without fraud or unfair dealing of any reversionary interest in real or personal estate shall hereafter be opened or set aside merely on the ground of undervalue.

(2) The word " purchase " in this section shall include every kind of contract conveyance or assignment under or by which any beneficial interest in any kind of property may be acquired.

60. (1) A deed expressed to be supplemental to a previous deed or directed to be read as an annex thereto shall as far as may be be read and have effect as if the deed so expressed or directed were made by way of indorsement on the previous deed or contained a full recital thereof.

37 & 33 Vict o. 37 s. 1.

Proviso

lb. s 2.

Illusory appointments shall be valid in equity as well as a t law.

Supreme Court Act ISM s. 64. 11 Geo. IV. and 1 Will. IV. c. 40 s. 1.

Not to affect anv deed which declares the amount of the share. lb. s. 05. lb . s. 2. Nor to pivc aii3' other foice t o any appointmen t than the same would have had. lb. 8= 66. II). s. 10. Sale of reversions a t undervalue.

Seal Property Act 1914 s. 7.

Construction of supplemental or annexed deed.

Conveyancing Act 1904 s. 61 .

44 & 45 Vict, c. 41 s. 53.

No, 2633.] CONVEYANCING ACT 1915. 845

(2) This section applies to deeds executed either before on or after Conveyancing

the thirty-first day of January One thousand nine hundred and five. ^1904.

6 1 . (1) A receipt for consideration money or securities in tlie Receipt in deed body of a deed shall be a sufficient discharge for the same to the P'*0 '^ ' person paying or delivering the same without any further receipt for 44'4'45 v ic l the same being indorsed on the deed. e. 41s. 54.

(2) This section applies only to deeds executed after the thirty-first day of January One thousand nine hundred and five.

62 . (1) A receipt for consideration money or other consideration Receipt indeed in the body of a deed or indorsed thereon shall in favour of a subsequent evidence for purchaser not having notice that the money or other consideration purchase"' thereby acknowledged to be received was not in fact paid or given n.«. 63. wholly or in part be sufficient evidence of the payment or giving of the ib.s. 55. whole amount thereof.

(2) This section applies only to deeds executed after the thirty-first day of January One thousand nine hundred and five.

6 3 . Deeds in the form of and using the expressions in the forms Sufficiency of

given in the Third Schedule of this Act or in the like form or using fs°Chedui"Tlmd

expressions to the like effect shall as regards form and expression in jb.». 64. relation to the provisions of this Act be sufficient. n>. s. 57.

C4. (1) A covenant relating to land of inheritance or devolving covenants to on the heir as special occupant shall be deemed to be made with the to,'6"'"0'161'8

covenantee his heirs and assigns and shall have effect as if heirs andiM. 65. assigns were expressed. ,b-s-53-

(2) A covenant relating to land not of inheritance or not devolving on the heir as special occupant shall be deemed to be made with the convenantee Ins executors administrators and assigns and shall have effect as if executors administrators and assigns were expressed.

(3) This section applies only to covenants made after the thirty-first day of January One thousand nine hundred and five.

bind heirs &c, lb. s,66. lb. s. 59.

6 5 . (1) A covenant and a contract under seal and a bond or covenants to obligation under seal though not expressed to bind the heirs shall operate in law to bind the heirs and real estate as well as the executors and administrators and personal estate of the person making the same as if heirs were expressed. ,, ,

(2) This section extends to a covenant implied by virtue of this Act.

(3) This section applies only if and as far as a contrary intention is not expressed in the covenant contract bond or obligation and shall have effect subject to the terms of the covenant contract bond or obligation and to the provisions therein contained.

(4) This section applies only to a covenant contract bond or obligation made or implied after the thirty-first day of January One thousand nine hundred and five.

66 . (1) A covenant and a contract under seal and a bond or Effect of obligation under seal made with two or more jointly to pay money or ^oTmore'11

to make a conveyance or to do any other act to them or for their benefit j«int|y-shall be deemed to include and shall by virtue of this Part of this f/1 "*'6„7'

J lb s. 60.


conveyancing A c t i m p l y a n o b l i g a t i o n to do t h e ac t to or for t h e benef i t of t h e s n r v i v o r Act 1904. o r s n r v j v o r g of them and to or for the benefit of any other person to whom

the right to sue on the covenant contract bond or obligation devolves. (2) This section extends to a covenant implied by virtue of this

Act. (3) This section applies only if and as far as a contrary intention

is not expressed in the covenant contract bond or obligation, and shall . have effect subject to the covenant contract bond or obligation and to

the provisions therein contained. (4) Tliis section applies only to a covenant contract bond or

obligation made or implied after the thirty-first day of January One thousand nine hundred and five.

Effect of advance 67 . (1) Where in a mortgage or an obligation for payment of on joint account m ( m e y o r a transfer of a mortgage or of such an obligation the sum or 75.». es any part of the sum advanced or owing is expressed to be advanced cf« " 6i.ct' by or owing to more persons than one out of money or as money belong

ing to them on a joint account or a mortgage or such an obligation or such a transfer is made to more persons than one jointly and not in shares the mortgage money or other money or money's worth for the time being due to those persons on the mortgage or obligation shall be deemed to be and remain money or money's worth belonging to those persons on a joint account as between them and the mortgagors or obligor, and the receipt in writing of the survivors or hist survivor of them or of the personal representatives of the last survivor shall be a complete discharge for all money or money's worth for the time being due notwithstanding any notice to the payer of a severance of the joint account.

(2) This section applies only if and as far as a contrary intention is not expressed in the mortgage or obligation or transfer and shall have effect subject to the terms of the mortgage or obligation or transfer and to the provisions therein contained.

(3) This section applies only to a mortgage or obligation or transfer made after the thirty-first day of January One thousand nine hundred and five.

Gmntsot 68 . (1) A conveyance of freehold land to the use that any person easements &c. , } » ^ , ^ . , . , •,. . , , . , , , , by way of use. may liave tor an estate or interest not exceeding in duration the estate ib. s 69. conveyed in the land any easement right liberty or privilege in or over ibs. 62 or with respect to that laud or any part thereof shall operate to vest in

possession in that person that easement right liberty or privilege for the estate or interest expressed to be limited to him, and he and the persons deriving title under him shall have use and enjoy the same accordingly.


th°vist°t fc" a" ®^' (^ Every conveyance shall by virtue of this Act be effectual ib. a. 70. to pass all the estate right title interest claim and demand which the ib.s. es. conveying parties respectively have in to or on the property conveyed

or expressed or intended so to be or which they respectively have power to convey in to or on the same.


(2) This section applies only if and as far as a contrary intention is conveyancing not expressed in the conveyance, and shall have effect subject to the'40'1904' terms of the conveyance and to the provisions therein contained.


70. In the construction of a covenant or proviso or other provision construction of implied in a deed by virtue of this Act words importing the singular ™«lufnts. or plural number or the masculine gender shall be read as also import- n.». 71. ing the plural or singular number or as extending to females as the «& 45 vut.

° x . v *-• c. 41 8. 64 .

case may require. 7 1 . Every contingent remainder created by any instrument cases in which

executed after the thirty-first day of January One thousand nine ^maSSs hundred and five or by any will or codicil revived or re-published by capawe of taking any will or codicil executed after that date in tenements or heredita- ;&. s.77. ments of any tenure which would have been valid as a springing or 40 & 41 vict. shifting use or executory devise or other limitation had it not hada c ' 8 3 s - 1 ' sufficient estate to support it as a contingent remainder shall in the event of the particular estate determining before the contingent remainder vests be capable of taking effect in all respects as if the contingent remainder had originally been created as a springing or shifting use or executory devise or other executory limitation.

The provisions of this section shall with any necessary modifi- ReaiProperty cations apply wliere a contingent remainder is granted by deed without Ad 1914 s '10 ' a springing or shifting use.

72 . (1) Where there is. a person entitled to land for an estate i n Restrictions on

fee, or for a term of years absolute or determinable on life, or for a j ^ K n s . term of life, with an executory limitation over on default or failure of conveyancing all or any of his issue, whether within or at any specified period or Act 1904 *•78-time or not, that executory limitation shall be or become void a n d c'_ yo 9# 10. incapable of hiking effect, if and as soon as there is living any issue who has attained the age of twenty-one years, of the class on default or failure whereof the limitation over was to take effect.

(2) This section applies only where the executory limitation is contained in an instrument coming into operation after the thirty-first day of January One thousand nine hundred and five.

PART VIII.—MISCELLANEOUS.

, 73 . (1) I t is hereby declared that the powers given by this protectionof Act to any person and the covenants provisions stipulations and sohcitorrandd

words which under this Act are to be deemed included or implied J^pjrf' Aot. in any instrument or are by this Act made applicable to any \b_ s, 80. contract for sale or other transaction are and shall be deemed 44 & 45 vict. in law proper powers covenants provisions stipulations and words c- 41 s"aa

to be given by or to be contained in any instrument or to be adopted in connexion with or applied to any such contract or transaction, and a barrister and solicitor shall not be deemed guilty of neglect or breach of duty or become in any way liable by reason of his omitting in good faith in any such instrument or in connexion with any such contract or transaction to negative the giving inclusion implication or

848 CONVEYANCING ACT 191 i [6 GEO. V.


Regulations respecting notice. lb. e. 81. 44 & 45 Vict. c. 41 s. 07.

application of any of tliese powers covenants provisions stipulations or words or to insert or apply any others in place thereof in any case where the provisions of this Act would allow of his doing so.

(2) But nothing in this Act shall be taken to imply that the insertion in any such instrument or the adoption in connexion with or the application to any contract or transaction of any further or other powers covenants provisions stipulations or words is improper.

(3) Where a barrister and solicitor is acting for trustees executors or other persons in a fiduciary position those persons shall also be protected in like manner.

(4) Where such persons are acting without a barrister and solicitor they shall also be protected in like manner.

74. (1) Any notice required or authorized by this Act to be served shall be in writing.

(2) Any notice required or authorized by this Act to be served on a lessee or mortgagor shall be sufficient although only addressed to the lessee or mortgagor by that designation without his name or generally to the persons interested without any name and notwithstanding that any person to be affected by the notice is absent under disability unborn or unascertained.

(3) Any notice required or authorized by this Act to be served shall be sufficiently served if it is left at the last-known place of abode or business in Victoria of the lessee lessor mortgagee mortgagor or other person to be served or in the case of a notice required or authorized to be served on a lessee or mortgagor is affixed or left for him on the land or any house or building comprised in the lease or mortgage or in case of a mining lease is left for the lessee at the office or counting-house of the mine.

(4) Any notice required or authorized by this Act to be served shall also be sufficiently served if it is sent by post in a registered letter addressed to the lessee lessor mortgagee mortgagor or other person to be served by name at the aforesaid place of abode or business office or counting-house and if such letter is not returned through the post-office undelivered, and such service shall be deemed to be made at the time at which the registered letter would in the ordinary course be delivered.

(5) This section does not apply to notices served in proceedings in the Court or under the provisions of the Transfer of Land Act 1915.

lb. s. 82. See ib. s. 60.

Regulations 7 5 . (1) Payment of money into Court shall effectually exonerate menHntoCourt therefrom the person making the payment. tions?pl'ca~ (2) Every application to the Court shall, except where it is other

wise expressed, be by summons at Chambers. (-3) On an application by a purchaser notice shall be served in the

first instance on the vendor. (4) On an application by the vendor notice shall be served in the

first instance on the purchaser. (5) On any application notice shall be served on such persons (if

any) as the Court thinks fit.


(6) The Court shall have full power and discretion to make such conveyancing order as it thinks fit respecting the costs charges or expenses of all or Aet 190i' any of the parties to any application.

(7) General Kules for purposes of this Act shall be deemed Eules of Court within the Supreme Court Act 1915 and may be made accordingly.

76. (1) An order of the Court purporting to be under any orders of court statutory or other jurisdiction shall not as against a purchaser be j ™ ^ " ' invalidated oil the ground of want of jurisdiction or of want of anyib.8.70. concurrence consent notice or service whether the purchaser has notice settled Estates

t, -i , . and Settled 01 a n y SUCh w a n t Or n o t . Lands Act 1909

(2) This section applies to all orders made before on or after the s - m

thirty-first clay of January One thousand nine hundred and five except any order which has before such date or in an action pending at such date been set aside or determined to be invalid on any ground.

SCHEDULES.

FIRST SCHEDULE. Section 2.

Number of Act. Title of Act. Extent of Repeal.

1103 ... Instruments Act 1890 Section 228. 1142 ... Supreme Court Act 1890 ... Sections 64, 65 and

66. The whole. 1784 .„ Bodies Corporate (Joint Tenancy) Act 1902

Sections 64, 65 and 66.

The whole. 1953 ... Conveyancing Act 1904 ... So much as is not

otherwise repealed. 2086 Real Property Act 1907 ... ... Section 9. 2440 ... Conveyancing Act 1912 ... So much as is not

otherwise repealed. 2532 ... Heal Property Act 1914 ... So much as is not

otherwise repealed.

SECOND SCHEDULE.

STATUTORY MORTGAGE.

PART I.

Deed of Statutory Mortgage.

THIS INDENTURE made by way of statutory mortgage the day of 19 between A of [Sfc] of the one part and M of [#"c] of the other part WITOESSKTH that in consideration of the sum of £ now paid to A by M of which sum i hereby acknowledges the receipt A as mortgagor and as beneficial owner hereby conveys to M All that fjrc] To hold to and to the use of M in fee simple for securing payment on the

day of 19 of the principal sum of £ as the mortgage money with interest thereon at the rate of [four] per centum per annum.

In witness &c. *»* Variations in this and subsequent forms to be made, if required, for leasehold land or

for giving efject (o special arrangements.

Section 44.

VOL. I.—3 II

850 CONVEYANCING ACT 19] 5. [6 GEO. V.

SECOND SCHEDULE—continued.

Seotionl5. P A S T II.

(A.)

Deed of Statutory Transfer, Mortgagor not joining.

THIS INDENTURE made by way of statutory transfer of mortgage the day of 19 between M of [«C-c.] of the one part and T of [cfcc] of the other part supplemental to an indenture made by way of statutory mortgage dated the day of 10 and made between [ifcc] WITNESSETH that in consideration of the sum of £ now paid to M by T being the aggregate amount of £ mortgage money and £ interest due in respect of the said mortgage of which sum M hereby acknowledges the receipt M

, as mortgagee hereby conveys and transfers to T the benefit of the said mortgage. In witness &c.

(B.) Deed of Statutory Transfer, a Covenantor joining.

THIS INDENTURE made by way of statutory transfer of mortgage the day of 19 between A of [etc.] of the first part B of [<bc.] of the second part and C of [die] of the third part supplemental to an indenture made by way of statutory mortgage dated the day of 19 and made between [efce. ] WITNESSETH that in consideration of the sum of £ now paid to A by G being the mortgage money due in respect of the said mortgage no interest being now due and payable thereon of which sum A hereby acknowledges the receipt A as mortgagee with the concurrence of B who joins herein as covenantor noreby conveys and transfers to 0 the benefit of the said mortgage.

In witness &o. (C.)

Statutory Transfer and Statutory Mortgage combined. T H I S INDENTURE made by way of statutory transfer of mortgage and statutory

mortgage 1 he day of 19 bet ween A of [d-c] of the first part B of [cfcc] of the second part and 0 of [<frc] of the third part supplemental to an indenture made by way of statutory mortgage dated the day of 19 and made between [<oc] WHEREAS the principal sum of £ only remains due in respect of the said mortgage as the mortgage money and no interest is now due and payable thereon AND WHKRKAS B is seised in fee simple of the land comprised in the said mortgage subject to that mortgage Now THIS INDKNTUKE WITNESSETH that in consideration of the sum of £ now paid to A by C of which sum A hereby acknowledges the receipt and B hereby acknowledges the payment and receipt as aforesaid* A as mortgagee hereby conveys and transfers to C the benefit of the said mortgage. AND THIS INDENTURE ALSO WITNKSSETH that for the same cons'deration A as mortgagee and according to his estate and by direction of B hereby conveys and B as beneficial owner hereby conveys and confirms to C. All that [Sfc] To hold to and to the use of C in fee simple for securing payment on the

day of 19 oft the sum of £ as the mortgage money with interest thereon at the rate of [four] per cent, per annum.

In witness &c. Or, in case of further advance, after aforesaid at * insert and also in consideration

of the further sum of X now paid by C to B of which sum B hereby acknowledges the receipt, and after of at t insert the sums of £ and £ making together. *t*Varintiona to be made, as required, in case of the deed being made by indorsement, or in

respect of any other thing.

Section 47. PART I I I .

Deed of Statutory Reconveyance of Mortgage. THIS INDENTURE made by way of statutory re-eonveyance of mortgage the

day of 19 between C of [Jfc] of the one part B of [Sfc] of the other part supplemental to an indenture made by way of statutory transfer of mortgage dated the day of 19 and made between [Sec. | WITNESSETH that in consideration of all principal money and interest due under that indenture having been paid of which principal and interest O hereby acknowledges the receipt C as mortgagee hereby conveys to B all the lands and hereditaments now vested in C under the said indenture To hold to and to the use of B in fee simple discharged from all principal money and interest secured by and from all claims and demands under the said indenture.

In witness. &c. "^Variations as noted above.

No.. 2633.] CONVEYANCING ACT 1915. 851 "

THIRD SCHEDULE.

SHORT FORMS OF DEEDS.

I. Mortgage.

THIS INDENTURE OF MORTGAGE made the day of 19 between A of [§"<:.] of the one part and B of [Ifc] and C of [Sfc] of the other part WITNESSETH that in consideration of the sum of £ paid to A by B and C out of money belonging lo them on a joint account of which sum A hereby acknowledges the receipt A hereby covenants with B and C to pay to them on the

day of 19 the sum of £ with interest thereon in the meantime at the rate of [four] per centum per annum and also as long after that day as any principal money remains due under this mortgage to pay to B and C interest thereon at the same rate by equal half yearly payments on the day of and the day of

AND THIS INDENTURE ALSO WITNESSETH that for the same consideration A as beneficial owner hereby conveys to B and C All that [frc ] To hold to and to the use of B and Cin fee simple subject to the proviso for redemption following (namely) that if A or any person claiming under hiin shall on the day of 19 pay to B and 0 the sum of £ and interest thereon at the rate aforesaid then B and 0 or the persons claiming under them will at the request and cost of A or the persons claiming under him re-convey the premises to A or the persons claiming under him AND A hereby covenants with B as follows—[here add covenant as to fire, insurance or other special covenant required"].

In witness, &c.

II . Further Charge. Tina INDENTURE made the day of 19 between

[ the same parties as the jore.going mortgage] and supplemental to an indenture of mortgage dated the day of 19 and made between the same parties for securing the sum of £ and interest at [four] per centum per annum on property at [die. ] WITNESSETH that in consideration of the further sum of £ paid to A by B and 0 out of money belonging to them on a joint, account \add receipt and covenant as in the foregoing mortgage] and further that all the property comprised in the before-mentioned indenture of mortgage shall stand charged with the payment to B and G of the sum of £ and the interest thereon hereinbefore covenanted to be paid as well as the sum of £ and interest secured by the same indenture.

In witness, &c. II I . Conveyance on Sale.

THIS INDENTURE made the day of 19 between A of [<fcc] of first part B of [cfcc] and G of [<Sic] of the second part and M of [&c] of the third part WHEREAS by an indenture dated [<fcc] and made between [tfer. ] the lands hereinafter mentioned were conveyed oy A to B and C in fee simple by way of mortgage for securing £ and interest and by a supplemental indenture dated [cfcc] and made between the same parties those lands were charged by A with the payment to B and C of the further sum of £ and interest thereon AND WIIERKAS a principal sum of £ remains due under the two before-mentioned indentures but all interest thereon has been paid as B and C hereby acknowledge Now THIS INDENTURE WITNESSETH that in consideration of the sum of £ paid by the direction of A to B and G and of the sum of £ paid to A those two sums making together the total sum of £ paid by M for the purchase of the fee-simple of the lands hereinafter mentioned of which sum of £ B and C hereby acknowledge the receipt and of which total sum of £ A hereby acknowledges the payment and receipt in manner before mentioned B and G as mortgagees and by the direction of A as beneficial owner hereby convey and A as beneficial owner hereby conveys and confirms to M All that [<fcc ] To hold to and to the use of M in fee simple discharged from all money secured by and from all claims under the before-mentioned indentures [Add, if required, and A hereby acknowledges the right of M to production of the documents of title mentioned in the Schedule hereto and to delivery of copies thereof and hereby undertakes for the safe custody thereof].

In witness, &c. *. [The Schedule above referred to.

To contain list of documents retained by A.]

3 H t

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