Ord. 9-1844. Previous laws re of the said rents as may prove effectual and at the same time free rears. 2. And be it enacted that it shall and may be lawful for the Notice to pay arCivil Commissioner of each division of this Colony in every case in which any land-rent payable or belonging to the Colonial Government shall by the books of such Civil Commissioner's office appear to be due and in arrear to prepare or cause to be prepared a notice addressed to the person who shall by the books aforesaid appear to be the owner of the place or property in respect of which such land-rent shall have accrued due, and to all others whom it may concern; and such notice shall in substance be in the form in the first schedule hereunto annexed is set forth; and such notice shall be served by leaving the same with the person in actual occupation of the said place or property, or in case such person cannot be found at his usual place of residence then by leaving the same at the residence of such person with the wife of such person or any child or servant of such person who shall appear to be of the age of sixteen years or upwards. And it shall be the duty of the person employed to serve any such notice, to have and preserve a copy thereof, to mark upon such copy as speedily as may be the time at which and the place and manner in which the original notice was served, by way of a memorandum to refresh if needful the memory of the person so serving the said notice. of arrears. objections for the 3. And be it enacted that it shall and may be lawful for the Objections tonotice person so appearing as aforesaid to be the owner of such place or property or for any mortgagee, lessee, or other person having any interest therein at any time within thirty-one days from the day of the service of such notice as aforesaid to lodge at the office of the Civil Commissioner in writing any objections to the payment of any part of the amount claimed in the said notice as due and in arrear, which may be disputed or denied, and if such objections Action to follow shall be duly lodged within the time aforesaid but shall not be trial thereof. allowed by such Civil Commissioner, and if the party lodging the same shall, within seven days after the lodging thereof, give security by way of recognizance to Her Majesty the Queen, and either with or without sureties as the said Civil Commissioner shall require, to pay the amount which such party disputes or denies together with the costs of the suit next hereinafter mentioned in case such suit shall be determined against the party so objecting as aforesaid and giving such security, the said Civil Commissioner shall forthwith cause proceedings to be commenced Ord. 9- 1844. Recovery of rent in specified cases. in some competent Court, for the recovery of the amount of rent in controversy, and shall not resort to the remedy by distress and sale as in the next succeeding section mentioned. 4. And be it enacted that in case no such objections as aforesaid by distress and sale shall have been lodged, or if lodged and disallowed, in case no such security as aforesaid shall have been given, and in case the amount of the land-rent mentioned in such notice as aforesaid shall not within the space of thirty-one days from the day on which notice shall have been served, be duly paid and discharged, or in case such objections as aforesaid shall have been lodged and allowed but the residue or balance remaining after the allowance of the same shall not be paid and discharged within the said space of thirtyone days from the day of the serving of the notice, then it shall and may be lawful for the Civil Commissioner aforesaid in every case in which the person appearing as aforesaid, by the books aforesaid, to be the owner of the place or property in question, shall be in the actual occupation of such place or property, to place in the hands of the messenger of any Resident Magistrate's Court, within that Civil Commissioner's division an authority in writing, empowering such messenger to seize and arrest all goods and chattels, being in and upon the place or property aforesaid, which goods and chattels would be distrainable by law for rent in arrear, and such authority shall in substance be in the form set forth in the second schedule hereunto annexed; and all goods and chattels so seized under or by virtue of any such authority as aforesaid shall be dealt with, treated and considered, to all intents and purposes as if the same had been attached under process of execution issued upon a judgment of the Court of the Resident Restrictions as to Magistrate of the district in which such seizure shall have been made, but no greater sum shall in any case be levied and raised than the sum mentioned in the said authority, together with such usual costs and charges, as would have been attendant upon the seizure and sale of the said goods and chattels, had the same been attached under such process as aforesaid. seizure and sale. under ownership. Distress may be 5. And be it enacted that in every case in which the person in leviter contacter actual occupation of any such place or property as aforesaid not being the owner thereof shall yet have entered into such occupation under or in pursuance of some contract or agreement for becoming the owner of the same, the power of distress and sale in the last preceding section mentioned may be exercised by the Civil Commissioner aforesaid, in manner and form as in the said section stated, precisely as if the person so in occupation under such contract or agreement were in law the owner. Cases in which re covery of rent may 6. And be it enacted that in all cases in which neither the be sought by action. person appearing as aforesaid by the books aforesaid to be the owner of the place or property in question, nor any such occupant as in the last preceding section mentioned, shall be in the actual occupation of such place or property or in which although in such occupation no sufficient goods and chattels shall appear to exist, whereof could be made in manner aforesaid the rent due and in arrear; or in which, by reason of any difficulties to him appearing, such Civil Commissioner as aforesaid shall decline to resort to the mode of proceeding in the last preceding section mentioned, it shall and may be lawful for such Civil Commissioner, at any time after the expiration of thirty-one days from the day on which such notice as aforesaid shall have been duly served, but not sooner, in case the rent in arrear shall still remain due and unpaid, to proceed according to law in some competent Court for the recovery of the land-rent due and in arrear, or for such other and alternative relief as by reason of the non-payment of the said rent the Colonial Government shall be legally entitled to demand. Ord. 9-1844. inedies of the govern 7. And be it enacted that any mortgagee, sub-lessee, or other Persons who may person having any interest in any such place or property as afore- pay rent and have resaid, shall be entitled at any time before the execution of the decree ment for its recovery. of any such Court as aforesaid, to pay and satisfy the amount of land-rent in arrear, with costs, and thereupon to be deemed and taken in case he shall not by reason of some stipulation or agreement be himself responsible for the said rent, to have, in regard to the amount so paid and satisfied, the like rights and remedies against the real debtor, as those which do or shall by law belong to the Colonial Government in regard to the recovery of its land-rents and its costs of suit. 8. And be it enacted that if in any such suit or proceeding as aforesaid, a decree should be pronounced declaring the quitrent grant, or lease of any such place or property, and the right or title derived from, by, or under it to be cancelled, annulled, forfeited, and avoided for or by reason of non-payment of the rent reserved and conditioned to be paid, then, in case the place or property in question shall, at the time of the pronouncing of such decree be under any mortgage either conventional or tacit (the hypothecation of Government for the rent due and in arrear alone excepted), the Civil Commissioner shall instead of entering upon or taking possession of such place or property under such decree be bound and obliged to cause the said place or property, and all right and title to, and interest in, the same, existing by virtue of the quitrent grant or lease thereof to be sold by public sale (in case no mortgagee or other interested person shall previously to such sale pay off the land-reut due and in arrear with all costs and charges), and such Civil Commissioner shall after deducting from the purchase money the amount of rent due and in arrear together with costs and the charges of the said sale pay over the surplus (if any) to the party or parties legally entitled to the same. Cases in which civil sell and not enter inpossession for re commissioner shall to covery. Sales to be by the 9. And be it enacted that every such sale as is in the last preceding section mentioned shall be held by the Sheriff and shall sheriff. be conducted in like manner as sales of immovable property seized or attached by such Sheriff in execution of legal process. Ord. 9-1841. 10. And be it enacted that whenever any such mortgagee as Moneys payable to aforesaid shall be absent from the Colony or shall not be discoverabsent mortgagees. able the Civil Commissioner shall cause all such moneys as would lict. be payable to such mortgagee if present to be paid into the guardian's fund to the credit of such mortgagee, there to be subject to the same provisions in all respects which are provided by Ordinance No. 105, bearing date the 5th day of July, 1833, in regard to moneys placed in the said fund belonging to persons absent from the Colony. Where land is dere- 11. And be it enacted that in every case in which any place or property in regard to which any arrear of land-rent shall be due to the Colonial Government shall be abandoned, deserted, or left derelict, and the person having or claiming title to the same shall after being duly summoned (1) make default, it shall and may be lawful for the Supreme or some Circuit Court as the case may be, upon proof to the satisfaction of the said Court by affidavit, or otherwise as to such Court shall seem fit that a certain amount of land-rent is due and in arrear, in respect to the said place or property, and that such place or property has been and is abandoned, deserted, or left derelict, to decree in a summary manner that the right, title, and interest of the grantee or lessee of the said place or property, and that of all other persons claiming by, through, or under him shall thenceforth be to all intents and purposes cancelled, annulled, forfeited, and avoided, and to adjudge and decree the said place or property to have reverted to the Colonial Government wholly free and unencumbered, and in the same plight and condition, as if the particular title, under and by virtue of which such place or property was previously held had never been created; and as often as any such decree as last aforesaid, shall be pronounced, the Civil Commissioner shall take possession on behalf of the Colonial Government of the place or property in question, and the said Government shall be at liberty to dispose of the same in whatever manner it shall seem fit. Provided always, that nothing in this section contained shall be taken or construed so as to prevent the Colonial Government from claiming from any competent Court a like decree of forfeiture of title for non-payment of rent in any case in which by law the said Government shall be entitled to claim the same. And provided also, that if in any case the place or property so abandoned or deserted shall be under mortgage at the time of any such decree as aforesaid, then the provisions in the eighth, ninth, and tenth sections of this Ordinance contained shall be deemed and taken to apply to the same as fully as if the said sections were each of them herein again repeate'l. In actions for recovery of rent what 12. And be it enacted that for the hearing and determining in proof of title neces- any of the Courts of this Colony (except the Supreme Court and the Court of the Resident Magistrate of Cape Town) of any suit, sary. 1 See § 2 Ord. 7, 1846; § 3, Act 3, 1879, and Act 24, 1887. action, or proceeding for the recovery of land-rent or for any other purpose relating to this Ordinance, it shall not be necessary for the Civil Commissioner to produce the original title deed of any such place or property as aforesaid or any duplicate thereof or any deed of transfer relating to such place or property; but on the contrary the entry or entries in the books of the Civil Commissioner purporting to contain the leading heads of the grant or lease or other instrument of title of such place or property shall prima facie be deemed and taken to be admissible and sufficient evidence to prove the amount of the rent reserved, and all other matters contained in such entry or entries of which the original grant or lease or other instrument of title might but for the present section be in law the best evidence: Provided always, that it shall be competent for any person defending any such action as aforesaid to produce and prove any such grant or lease or other instrument as aforesaid, and thereupon such deed so produced and proved shall in case of any discrepancy between the said entries and said deed be deemed and taken to be the best evidence of every matter and thing in the said deed contained. Ord. 9-1844. clause. Colonial govern "Land-rents due and in arrear." 13. And be it enacted that in the interpretation of this Ordi- Interpretation nance the term "Civil Commissioner" shall mean the officer for "Civil commisthe time being acting as such; and that the terms "Colonial sioner." Government and "Government" shall mean respectively Her ment." Majesty's Local Executive Government within this Colony; and that the term "land-rents due and in arrear” shall extend to and comprise quit-rents, loan-rents, and all other sorts of periodical payments to the Colonial Government, arising out of lands and due and in arrear, as also the amount which would have been paid for stamped receipts had the said rents instead of being allowed to fall into arrear been regularly paid, and stamped receipts as by law required been regularly given for the same; and that the term owner" shall mean the person in whom whether in his individual or in some fiduciary capacity the complete dominium or legal right in any place or property held by any quitrent grant or lease or other title from and under the Colonial Government, shall for the time being be vested; and that the singular number shall include the plural number; and that the masculine gender shall include females as well as males. 66 SCHEDULE No. 1. To A. B., and all others whom it may concern. Notice is hereby given that the sum of £ day of is now (here -, being the amount of year's quitrent (or other rent as the case may be), up to the in the year of our Lord due and owing to Government upon the place describe the farm or other property according to its title or other description), and that unless the said sum of £-- shall be paid to the undersigned within thirty-one days from the day of the service of "Owner." |