LAW REPORTS.

Dominion, Volume 5, Issue 1372, 24 February 1912, Page 22

LAW REPORTS.

GLD MILITARY ROAD,

RATHER INTERESTING POINTS,

CAVEAT TO TRANSFER,

At the Supreme Court yesterday, His Honour Mr. Justise Sims delivered his reserved decision in the case wherein. Mrs. Mmid Eliuor Fitzgerald sought to have removed a caveat lodged by tho District Land Registrar in respect of certain land on tho south side of the old Military Road to Karori. Previous litigation instituted in the Bupreme Court by tho owner of the land on the north side of the road, resulted in the line of the road being moved so lie distance to the south, and tho soctions on that side were thereby reduced in size. Accordingly, the District Land Registrar was authorised by special legislation to amend the certificates of title on tho sections affected—Lots 73 and 74—which, by the way, had been mortgaged to Mrs. Fitzgerald before; tho litigation which resulted in the adjustment of the road line took place. Subsequently, the mortgagor having made default in payment, Mrs. Fitzgerald purchased the sections under the power of sale in tho niortgago, and a. transfer of tho Boction was duly executed by the Registrar of the Supreme Court. But the District Land Registrar declined to register the transfer till the certificate of title had been amended to exclude that portion which had since been declared to be road, in terms of the legislation referred to. Further, ho refused to remove the caveat ho had lodged against the title when the dispute with regard to the rood lino arose. 'The substantial question to be determined on this summons," commented his Honour, "is whether Mrs. Fitzgerald was entitled to have the transfer from the Registrar of the Supreme Court to herself registered before or after the rectification of the certificate of title. This claim, in my opinion, is well founded. The memorandum of transfer to Mrs. Fitzgerald was presented for registration on August 27, 1909. It lias since been registered, and in the certificate indorsed thereon that dato is given as tho date on which a memorial of the transfer was entered ou the register. It is true-that, in this memorial there is a statement that the transfer is 'registored as to the balance oi land in title after correction, without prejudice to the rights of the parties undei summons to remove caveat.' The rectification, however,. was not actually madt until September 4, 1909. So far, therefore, as the register was concerned, there was nothing, except the caveat lodged bj tho Registrar himself; to prevent him from registering the transfer on August 27, 1909, in the form in which it was presented on that day. Mrs. Fitzgerald wai entitled to have it registered in that form and neither the mortgagor nor the second mortgagee,could have had any legitimate ground of complaint if the Registrar had registered .the transfer in that form. Noi could the Karori Borough Council have been prejudiced in any way by the registration of the transfer in that form, Because Mrs. Fitzgerald did- not dispute that it was the duty of the Registrar, after such registration, to rectify the certificate of title so as to exclude therefrom the balance of the road lines. The transfer having been registered, the only order necessary is one directing the Registrar to amend tho memorial on the register relating to tho transfer by striking out tho words limiting tho extent of the registration.' "It was unnecessary to_decido whether or not. tho Registrar was entitled to lodge a caveat as he did. Ho ignored it him'seli by registering tho transfer, and also the dealings with the second mortgage. The certificate of title having been amended in accordance with the Act, the caveat, if properly lodged in the first instance, ougiit to bo removed now, and nn order i; made for its removal. I make an ordei allowing Mrs. Fitzgerald tho costs of th< summons {£a 55., and disbursements) oul of the assurance fund. The costs incurred by tho District Land Registrar are alsc to be paid out of the assurance fund."

ACTION STAYED. TATTLE AND MANAWATU STUD CO. In- Chambers yesterday, his Honour Mr. Justico Sitri gran tod a stay of proceedings in the action between G. A. Tattle, of Palmcrston North (the plaintiff), and P. E. Baldwin and the Manawatu Stud Company, Ltd. (defendants), until a further order of the Court. The application of plaintiff was made on the grounds that by arrangement between the parties the action, it had been agreed, should be struck out. The litigation originally instituted was in respect of a claim for JJ1423 Bs. 9d., for moneys alleged to have been advanced, with interest. A basis of settlement was arrived at when tho case camo on for hearing at Palmerstou North in August last. One of the terms of settlement set forth in the memorandum was that the Manawatu Stud Company was to give tho plaintiff a_ second mortgage for the amount duo to him, and tfijh regard to this point a dispute had arisen. Ifr. D. M. Findlay appeared for tho plaintiff, and Mr. C. P. Skerrett, K.C., for the defendants.