The Southland Times. TUESDAY, OCTOBER 11, 1870.

Southland Times, Issue 1320, 11 October 1870, Page 2

The Southland Times. TUESDAY, OCTOBER 11, 1870.

Legislation has of late shown a decided tendency to relax many of the fetters by which the acquisition of landed property has hitherto been bound. As a beneficiary trust which any:man may enjoy, its right of Conquest or attainment has always been regarded with a superstitious dread, from which the, mind, instinctively recoiled unless operated upon by the intervention of \ the attorney or proctor, "Within the last quarter of a century, the • feudal-law of Great Britain has been considerably modified, and while the security of holdings has not been lessened, intromissions, of this nature are drawn more closely within the influence of a healthy circulating medium. Limiting our remarks to land held under the British Crown, the credit belongs to the Australian Colonies of working out the conveyancing problem to that simplicity of form which renders legal assistance altogether unnecessary. The solution was first brought about by the Torrens's Land Act, which came into operation in South Australia upwards of twelve years ago. As far back as the year _, 1860, an adaptation of the "Act was introduced into the Legislative Assembly of New Zealand, but . _ the measure was— then looked upon as much too sweeping in its characteristics. 'The Land Registration Act of "1860,- which was more consonant to ' popular prejudice, was adopted in its stead. Since then, various amendments have been made, although the original spirit. of the Act has not been altered; Meantime Torrens's Act was gaining ground in the neighboring colonies, and all doubts regarding .its success have long since been set at rest. In New Zealand the practicability of the scheme was never lost" sight of, and, strengthened by its, successful in Australia, the adaptation was again attempted at the last session of Assembly, and successfully carried through. The objects of the Act are much more comprehensive than the short title would lead one to. believe. : It aims. in the first place at the establishment of an inde- , feasible right to= lands alienated from the Crown; this title to form the basis for all future, transactions, whether made in the form ; of absolute transfers, or merely Hens in security. For these pur ; poses the G-overnor is authorised to constitute Land (Registrars districts throughout the North and Middle Islands. ' The formation of these districts is limited to the 31st of March next. This limitation ought to be noted, as we judge from the \ reading of the enactment, that after that ! date no registration district can be proclaimed. The next important feature is the provision for bringing properties under the operations of the Act This is done upon the application of the owner, who furnishes written particulars of the property similar to those set forth in tTie deed of assignment at present in use. This memorandum, together with all deeds or instruments relating to the title, are handed over to the custody of the Registrar, who satisfies himself as to the ionajldes of the application, after-whieh it is registered, and a certificate of the fact issued. Parties interested in preventing such registration are empowered to lodge a caveat, which stays further proceedings until the matter has been investigated. This done, the title is complete, without reference to any prior, transaction connected with the property, and this registration right, indexed by the certificate, forms the foundation from which all future rights and appertenances flow. .Practically speaking, it operates as a kind of prescriptive right against which prior flaws cannot be pleaded. It is in this respect that registration under Torrens's Act is distinguished from registration under any other Act. Under ordinary circumstances, registration furnishes no validity to the title beyond what was in the deeds themselves, and if these ; deeds happened to be; inoperative, their registration did not in any way alter the defect. Here it "is different. The Act of registration constitutes the title, which can admit of no challenge. It will thus appear that the* holders of property are interested in having it brought under theoperations of the Act, even although they should have no immediate intention of transferring. Indeed, until that is done, they cannot intromit with their properties, so that until registered it remains upon their hand an unmarketable commodity. The whole thing can be accomplished for an ad valorem fee of from 5s to dBl, and the owner brings his right within the compass of one simple document, instead of having it scattered over a progress of title deeds compounded of technicalities, sometimes hard to be understood even by those initiated in law. Transfers are the next subject provided for by the Act. It is done by a simple memorandum, signed by the seller, who briefly narrates that he is the registered owner, conformably to .certificate of registration produced; ■• The purchase-money. is specified, together with the name of the disponee. This memorandum is then registered,- and the prior certificate cancelled by the Registrar. It is perhaps unfortunate that the Act should insist upon the purchase-money appearing upon the register. This was the great objection urged against the abolition of the old Scotch instrument of sasine, when the feudal system was so far altered as to enable purchasers ,to record their dispositions, upon i;he, face of which the consideration money was stated. The objection' lies in the fact' that: subsequent purchasers are enabled to ascertain, so to speak, the cost price of the property. In advocating the progress of the ,. Bill through ' Parliament, Mr Tox dwelt at great length upon the mercantile aspect of the question, and it is rather singular that this plain principle of trade and commerce should not have suggested itself to his mind. " The great secret iof buying and selling rests in a careful concealment of ; the primary, r cost ,of tjie

commodity, hence the importance of private marks and trade references. To have made the receipt a separate document from the memorandum of transfer would have obviated all difficulty in this respect. The cost of transfer is fixed at 10s. Restricted righits, such as leases and mortgages, are next provided :fpr, the provision being quite as , simple, anjl the expense equally small. The most paipableevidence f however, of a. desire on the part of the "legislature to simplify tn"ese transactions, and keep them free from any plea for exorbitant .charge, ia__ manifested, in connection with, the provision made for leases. The usual covenants are ; implied unless" expressly" excluded, "so that '. no necessity exists for reciting them at length. Special covenants are also provided for upon an abbreviated scale. For example clause 71 enacts that the words " will insure" shall imply — That the lessee or mortgagor will insure, and so long as the term expressed in the said mortgage or lease shall not have expired, will keep insured in some public insurance office to be approved by such mortgagee or lessor, against loss or damage by fire to the full amounts specified in the instrument, or if no amount be specified, then to their full value, all buildings tenements or premises erected on such land which shall be of a nature or kind capable of being insured against loss. or damage by fire, and that the mortgagor or lessee, will at the request of the mortgagee or iess'o'r, hand over to and deposit with him the policy of every such insurance, and produce to him the receipt or receipts for the annual or other premiums, payable on account thereof; and also that all moneys to be received, junder or by virtue of any such insurance shall in the event of loss or damage by fire be laid out and expended in making good such loss or damage ; provided also that; if default shall '< be made in the observance or perfofmancVof toe covenant last above mentioned, .it shall be lawful for the mortgagee or lessor, without prejudice, nevertheless to, and/concurrently with, the powere granted him byhisTnemorandum of mortgage or lease, or by this Act provided, to insure such building, and the: costs and charges of such insurance shall until such mortgage be redeemed or such lease shall have expired be a charge upon the said land. _ — The" words "wQT fence"" to "imply that the lessee will, during the continuance of the lease, erect and put upon the" boundaries of the land therein mentioned, or upon auoh boundaries upon which no substantial fence exists, a good and substantial fence. 1 The word " cultivate" " ;to imply that he will at all times during the 'lease cultivate, use, and manage all 'such parts of the land therein mentioned as are or shall be brokenup or converted inter/tillage in a and husbandlike manner, and will not impoverish or waste the same. : The words ." will not without leave assisn or sublet " to imply thst the said lessee shall not nor will during the ternrof such lease assign," transfer, demise, sublet, or set over or otherwise by any act or deed procurejthe lands'qr pfemises?therein mentioned, or any of them, or any part thereof, to be assigned, transferred, demised, sublet, or set over unto any person whomsoever without the consent in writing of the said lessor first had and obtained.; The words " will not cut timber " to imply that the lessee shall not nor will cut down, fell, injure, or destroy any growing or living timber or timber-like trees standing and being upon the said hereditaments and premises above mentioned without the consent in writing of the said lessor. These are the main provisions of the Act ; the remainder are merely collateral, arising out of the exigencies of the case. For instance, clause 35 provides for. , the establishment of' an J assurance fund, which may, subject to the pro-* •visions in clause 130, be appropriated as compensation to parties deprived of laud. The assurance rate is fixed at a halfpenny per pound sterling on the value of the properties as set forth in the memorandum of registration. Powers of attorney in respect of land registered under the Act may be executed by a simple memorandum and a duplicate copy entered upon the register. In default of the observance of covenants in mortgages and liens, clause 60 authorises" a sale of the properties by public, auction, or private bargain, and under certain circumstances an order of foreclosure may be obtained on application to the Registrar. The transmission of properties by will or probate is also provided^ for, likewise a variety of precautionary measures to owners of land under coverbure or other legal impediment. The Act is a voluminous one. It deals, so far as we can judge from a hasty perusal, with the whole science of conveyancing, and the one aim is kept steadily in view throughout, viz., a determination to bring it down to the capacity of transactions in. ordinary life. „..