498
THE NEW ZEALAND GAZETTE.

executed under the Great Seal, and enrolled, and
though not made a record of any Court, is assumed
to have the effect of a record, and is consequently
received as conclusive evidence of title. Whether
or not there is sufficient ground for that assumption
is not material to the present question. (See however
"The Queen against Hughes and Another," Privy
Council Report, 1866.) The Colonial Legislature
could, if necessary, make provision putting that
question beyond a doubt. Assuming however that a
colonial grant from the Crown has, in the absence of
express provision to the contrary, the effect of a
Crown Grant under the Great Seal as conclusive
evidence of title, yet in the cases of grants from the
Crown of lands, to which New Zealand Company's
land orders relate, it is clear that such grants have
not the conclusive effect of grants under the Great
Seal; and so long as they remain subject to the
provision contained in the fifty-first section of 9th
and 10th Vict., c. 82, they cannot be received as
conclusive or satisfactory evidence of a good title.
This defect in the Crown Grant of lands as to which
land orders relate has to a very great extent had the
effect of depriving the Colony of those benefits which
it was anticipated would flow from the passing and
bringing into operation of the Land Registry Acts.

The 24th Vict., No. 27 (Land Registry Act, 1860),
makes provision whereby any person entitled
absolutely for his own benefit to an estate in fee-
simple at law and in equity, free from trusts and
encumbrances, may be registered as proprietor.
Provision is also made for registration in cases where
trusts and encumbrances are admitted to exist.

Registration, by the thirty-third section of this Act,
confers an indefeasible title on the person registered
as proprietor, subject to the encumbrances and other
matters entered on the register, but free from all
other estates, encumbrances, and interests whatso-
ever.

An objection which appears insuperable until
Imperial legislation has been obtained, has been made
permitting persons to register who claim under grants
from the Crown of lands to which New Zealand
Company's land orders relate.

It would appear that "The Land Registry Act,
1860," if it extend and apply to such lands, is
repugnant to the Imperial Acts above referred to, for
the Land Registry Act assumes to give an indefeasible
title, and to free the lands as to which a person has
been registered as proprietor from all estates, encum-
brances, and interests whatsoever not registered,
while the Imperial Acts provide that notwithstanding
any rule of law or equity to the contrary, such lands
shall continue and be subject to such equitable
estates, charges and liens as subsisted at date of
grant, or where then or should thereafter be capable
of taking effect.

Interpreting the Land Registry Act as not applying
to such lands, or as repugnant to the Imperial Acts,
and consequently not capable of affecting them, titles
to such lands have not been permitted to be registered,
as it was considered an indefeasible title could not be
given by reason of the Imperial Acts, notwithstanding
the provisions of the Land Registry Act. This seems
to have been the proper course.

It has been suggested that such titles might be
received, and that the inquiries as to title in such
cases should be pursued back to the issue of the land
order; that is, that the Crown Grant is not to be
received as the source of title, but that the land
order must. Assuming, however, that such investi-
gations could be satisfactorily made, the registered
proprietor would have a title not indefeasible by
reason of registry under the Act, but a title proved
to be perfectly good to the satisfaction of the
Registrar or such other person or tribunal as by the
Act is appointed. Such a title would not be
indisputable or indefeasible, but open to dispute and
capable of being defeated, though the inquiries may
have been so satisfactory as to reduce the chances of
such defeasance to a minimum.

It has also been suggested that to such cases
the sixty-sixth section of the Land Registry Act
would apply. That section provides that where the
land appears to be subject to uncertain or doubtful
claims or encumbrances, the proprietor may be
registered notwithstanding, on paying such sum or
giving such security as an indemnity as the Registrar
may determine. The effect, however, of this provision
is still the same; it assumes to give an indefeasible
title to the registered proprietor in cases where such
title cannot be given by reason of provisions in
Imperial Acts. If persons having equitable interests
in or claims or liens on such lands, decline to take
compensation from the Indemnity Fund, and insist
upon such interests, claims, or liens, it seems clear
that the Land Registry Act cannot prevent them
from establishing such claims or liens.

Thus it is that lands to which New Zealand Com-
pany's land orders relate cannot be brought under
the operation of the Land Registry Act, because the
Act cannot as to such lands give an indefeasible title.

The fifty-first section of the 9th and 10th Vict.,
c. 82, provides that the equitable estates charges and
liens affecting such lands are to continue, notwith-
standing any rule of law or equity to the contrary
prevailing in New Zealand or elsewhere, and it has
been remarked that there is nothing in the Act to
show what rules of law or equity are referred to, or
whether rules of statute law, as well as common law
are referred to. It is necessary therefore to draw
attention to two Ordinances then and still in force in
New Zealand relating to land and the transfer of it.
These Ordinances are the Deeds Registration Ordi-
nance and the Conveyancing Ordinance.

The first passed in December, 1841, the other in
January, 1842.

The Deeds Registration Ordinance provides for
registration of Crown Grants of land, and deeds or
contracts affecting such lands subsequently to the
Crown Grant, and for registration of judgments, lis
pendens and other matters, and gives priority to
deeds or contracts, &c., first registered. It may be
that this Ordinance and the rule of law which it
creates was referred to. Certainly, whether the Im-
perial Legislature had this Ordinance in view or not,
the Imperial Act, so far as it affects lands granted to
the New Zealand Company, and by them sold and
contracted to be conveyed, does prevent the operation
of the Deeds Registration Ordinances on contracts
or deeds affecting such lands.

The conveyancing Ordinance introduces several
new rules of law relating to land and transfers of
land.

Amongst others it provides that no land shall be
charged or affected by way of equitable mortgage.
(See section forty-two.) It also provides that no
vendor of land shall have any equitable lien thereon
by reason of non-payment of purchase money or any
part of the purchase money. (See section forty-three.)

Was it intended by the Imperial Legislature that
lands to which land orders related should be subject
to equitable estates charges or liens, notwithstanding
the provisions of the Conveyancing Ordinance to the
contrary?

It might be contended that the object and intention
of the Legislature in using the words in the said
fifty-first section here referred to, and above set out
"in full" between inverted commas, was only to keep
alive equitable estates charges and liens, although a
deed of conveyance from the Company had been
executed, and notwithstanding any rule of law or