Registrar-General (NSW) v Wood [1926] HCA 43

46 HIGH COURT fl

{HIGH COURT OF AUSTRALIA.)

THE REGISTRAR-GENERAL OF NEW

SOUMEL WATHS: a. 5 ee ' APPELLANT ;

WOOD . 3 " ss z : RESPONDENT.

ON APPEAL FROM THE SUPREME COURT OF NEW SOUTH WALES.

or A, Husband and Wife—Land held as tenants by entireties —Separate property of wife

H.C.

' 926. Transfer of wife's interest under writ of fieri facias—Registration of transfe ae, Married Women's Property Act 1901 (N.S.W.) (No. 45 of 1901), secs. 3, 5, 8, Sypney, —Conveyancing Act 1919 (N.S.W.) (No. 6 of 1919), sec. 26.

Aug. 20, 23 ; Held, by Isaacs, Rich and Starke JJ. (Knox C.J. and Higgins J. dissenting), a that since the passing of the Married Women's Property Act 1893 (N.S.W.) & Knox C.J, transfer of land in New South Wales to a husband and wife as tenants by

Isaacs, Higgits, entireties, of which land they become registered under the Real Property 4 eee ys 1900 (N.S.W.) as tenants by entireties, confers upon the wife a separate estate

and interest of which, under sec. 5 of the Married Women's Property Act 1901 (N.S.W.), she can dispose as if she were a feme sole ; and therefore that Registrar-General was bound to register a transfer by the sheriff, pursuant

a sale by him under a writ of fieri facias issued against the wife, of all the wife' estate and interest in such land.

Decision of the Supreme Court of New South Wales (Full Court): Bx Wood, (1925) 26 S.R. (N.S.W.) 1, affirmed.

Apprat from the Supreme Court of New South Wales.

By memorandum of transfer dated 14th October 1918 there transferred to Annie Wood and William Harry Wood, her hus as tenants by entireties, by the said Annie Wood, who had acq) the same in February 1910 from one George Weeks, all the |

39 C.L.R.] OF AUSTRALIA.

comprised in a certain certificate of title, being lots 28 and 29 on a certain plan, in the parish of Wilton and county of Camden; and William Harry Wood and his wife were and had been since 26th November 1918 the registered proprietors as tenants by entireties of the said land. By memorandum of transfer dated 6th April 1914 there was transferred by the Nepean Estate Co. Ltd. to William Harry Wood and his wife as tenants by entireties all the land comprised in a certain certificate of title, being lot 27 on a certain plan, in the parish of Wilton and county of Camden, and William Harry Wood and his wife were and had been since 6th May 1914 the registered proprietors as tenants by entireties of the said land. On or about 18th March 1925 there was issued out of the Supreme Court of New South Wales a writ of fieri facias in an action in the said 'Supreme Court in which one Kenneth McDonald White was the plaintiff and the said Annie Wood was defendant, and on or about 19th March 1925 the said writ directed against the said lands of the said Annie Wood was lodged in the Department of the Registrar- General. The said writ bore a notification that it was intended to bind all the land comprised in the aforesaid certificates of title. It was entered on the proper register books on 2nd April, the memorials on the said register books stating that the writ affected the undivided interest of Annie Wood. The Sheriff duly caused to be sold on Ist June 1925 the interest of the said Annie Wood in the said lands and William Harry Wood duly purchased the same from the Sheriff. Thereafter the Sheriff on or about 26th June 1925 executed a memorandum of transfer whereby he purported to transfer to William Harry Wood all the estate and interest of Annie Wood in the whole of the said lands. The Registrar-General refused to register the said transfer, stating that "the transfer to the proprietors in this case must upon registration be deemed to have conveyed the subject land to them, subject to all the incidents attending a tenancy by entireties at common law. If this is so, then, having regard to the nature of such a tenancy, the wife's interest cannot be regarded as her separate property, and conse- quently such interest was not liable or competent to be taken in execution (Act No. 45 of 1901, sec. 3 (2)). On this footing, the writ of fiert facias was not properly issued and should not have