WHEELER v Bapwin.

WHEELER v Bapwin. - [1934] HCA 58 - HCA 1934 case summary — Zoe

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prima facie evidence of the right to possess (Asher v. Whitlock (1): Pollock and Wright on Possession in the Common Law (1888), 20-23 ; Holdsworth, History of English Law, 1st ed. (1903), vol, pp. 77-88, particularly p. 83). A caveator in possession is however, in the same position as a defendant in ejectment (Sollii v. Broughton (2); Ea parte Hamilton (3); Kelly v. Bentinck (4) ) It must be observed, however, that proceedings taken in suppor of the caveat do not establish the caveator's title for the purpos of registration, and it is by no means necessary under the Act that the applicant's title be established to the satisfaction of the Registrar- General before a caveat is lodged. The provisions of the Act are - nevertheless designed as a method of protecting the rights of any person having or claiming an interest in the land. But it is not an exclusive remedy (Public Trustee v. Murray (5) ). The protection given by the section is possibly more important in New South Wales than in other States, for sec. 45 of the Act provides: " No title to land adverse to or in derogation of the title of the registered proprietor shall be acquired by any length of possession by virtue ' of any statute of limitations relating to real estate, nor shall the title _ of any such registered proprietor be extinguished by the operation - of any such statute." The cases lodged by the parties pursuant to - sec. 27 are treated as in the nature of pleadings in the matter (In re Austin (6); In re Marshall (7) ). But it is for the Court to decide whether any facts are in bona fide contest between the parties: if - the Court finds there are no such facts it then decides the matter upon the cases; if there are such facts then issues may be directed (Re Lethbridge v. Mitchell (8); Re Doust (9); Re Bank of Austral- asia (10); In re Howison (11); Kelly v. Bentinck (4)). Very comprehensive powers are conferred upon the Court (Re Brodziak (12) ): it can direct not only the issues to be tried, but who shall be plaintiff or defendant in any of those issues (In re Browning (13) ). '

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is attacking the title. - The result is that, in my opinion, the appeal should be allowed Dixoy J. This is an appeal by leave from an order by Street J., by which he directed issues to be tried between a caveatrix and an _ applicant seeking to bring land under the provisions of the Real 0 Property Act 1900. His Honor refused to direct any issues except whether the caveatrix had a good possessory title to the lands, the Bien of the application, and whether she had a good and valid : documentary title. The caveatrix sought an issue or issues upon the question whether three conveyances, upon which the applicant _ relies, are invalid because, contrary to the Pretenced Titles Act (32 Hen. VIIL., c. 9), they were conveyances of a present right of entry only by a person who had not been in possession of the land within "the space of one year before the dates of the respective conveyances. In New South Wales this statute was in force until the passing of 'sec. 50 of the Conveyancing Act 1919, and its operation had not been affected by any enactment making rights of entry alienable. The documents impugned by the caveatrix were executed before 1919. The effect of the Pretenced Titles Act (32 Hen. VIIL., c. 9) is discussed in Holdsworth, History of English Law, 3rd ed. (1925), vol. vir, p. 50, and in Salter v. Clarke (1). (Cf. Jenkins v. Jones (2); Kennedy v. : yell (3).) So far as material, its operation in New South Wales ; 'was to invalidate conveyances of lands pursuant to sale if the vendor had for a year before the sale been dispossessed of the land. The disputed land lies on the eastern side of the Narrabeen Lagoon and fronts a street called Goodwin Street. The expression " reserve" Seems to have been used to describe land of which it formed a part. Apparently both the applicant and the caveatrix claim to derive

title under one John Wetherill. The caveatrix alleges that in 1882 John Wetherill contracted to sell to her father-in-law certain lots "including reserve," that the purchase money was paid, that in _ 1885 a conveyance in intended fulfilment of the contract was made

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trustees to Desborough, and that of November 1911 by Desborough the applicant, were each bad under the Pretenced Titles Act 1540, use none of the grantors was in possession of the land or had been within twelve months of the grant. Whether she is entitled to an issue upon this question depends upon the provisions of the Real Property Act 1900 dealing with caveats against applications to ring land under that statute. Sec. 24 of the Real Property Act enables any person, having or claiming an interest in land the ubject of such an application, to caveat. The caveat must particularise the estate, interest, lien, or charge claimed by the tor, and the caveator shall if required deliver a full and complete tract of his title." Sec. 26 provides that after three months the shall lapse unless the caveator has taken proceedings to 'blish his title to the estate, interest, lien or charge therein cified, or has obtained from the Supreme Court an order or nction restraining the Registrar-General from bringing the land the Act. Sec. 27 provides that where a caveat has been by a caveator claiming the land or an interest therein \dversely to the applicant, the latter may state a case for the opinion nd direction of the Supreme Court upon the matter. The caveator ay apply for an injunction, and the Court may direct him to lodge acase on his own behalf stating whether he claims in his own right under another person, together with such other particulars, if any, the Court thinks fit to order. The Court shall thereupon direct to be tried, or, if no fact be in contest, it may decide the matter n the case stated. The question is whether a person who, like caveatrix, is in possession of land adversely to the applicant seeks to bring it under the Act, may, although he has not yet ired a statutory title by length of possession, caveat against the pplication, and obtain an issue as to the validity or sufficiency of the applicant's documentary title to'the land. Upon this question a series of decisions of the Supreme Court of New South Wales is

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estate, or of an equitable claim upon the land, could be a caveator, - This inference is to be drawn not only from the way in which the word ' interest ' is used in the latter part of the section in connection with the words ' estate, lien, or charge,' which points to the conclusion that the interest is to be one ejusdem generis, and, therefore, one which gives the caveator a legal or equitable claim to or upon the - land itself, but also from the concluding words of the section under which the caveator may be required to deliver a full and complete abstract of his title." This statement was approved in Municipal - District of Concord v. Coles (1). Indeed, the terms of sees. 24 and 26 clearly require that an estate, interest, lien or charge shall be claimed by the caveator. The existence of such an interest in the land gives him his locus standi to caveat. If this locus standi is established he is entitled to call in question the applicant's right to bring the land under the Act. But the applicant's right depends upon his title to an estate in the land. Except in cases when one or other of them relies upon a possessory title or possession, the question of the applicant's title cannot be separated from the question of the caveator's locus standi. Rival claims to interests in the same land depending upon derivative documentary titles must be traceable to a common root, and an investigation of the claim of one cannot be complete without a consideration of the claim of the other. It is probably for this reason that Mr. Hogg in his book upon the Australian Torrens System, (1905), at p. 744, formulates the principle that the power of making or concurring in an application to bring land under the Act and the power of caveating against such an application are correlative, so that the caveator must have an interest in the land sufficient to enable him to apply to bring the land under the Act. But when the caveator relies upon a possessory title of the statutory duration and the applicant upon a documentary title, or vice versa, the validity of the two titles depends upon independent considera- tions: the possessory title extinguishes the documentary title in virtue of extrinsic collateral facts. The question whether the applicant has a good documentary title or a bad one is usually irrelevant to the acquisition of the possessory title of the caveator. The doctrine, which the cases decided in the Supreme Court of New

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