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CONVEYANCING ACT 1919 - SECT 112
Protection of purchaser and disposal of proceeds of sale
112 Protection of purchaser and disposal of proceeds of sale
(1) A mortgagee or chargee exercising the power of sale conferred by this Act
shall have power by deed to convey the property sold for such estate and
interest therein as is the subject of the mortgage or charge, freed from all
estates, interests, and rights to which the mortgage or charge has priority,
but subject to all estates, interests, and rights which have priority to the
mortgage or charge.
(2) In the case of a mortgage by demise, such mortgagee
shall in exercise of any power of sale vested in him or her have power to
convey the reversion for all the estate which was held by the mortgagor at the
date of the mortgage, whether the same is by the mortgage deed declared to be
held in trust for the mortgagee or any purchaser from him or her or not.
(3)
Where a conveyance is made in professed exercise of the power of sale
conferred by this Act- (a) a purchaser shall not, either before or on
conveyance, be concerned to see or inquire whether a case has arisen to
authorise the sale, or due notice has been given, or the power is otherwise
properly and regularly exercised,
(b) the title of the purchaser shall not be
impeachable on the ground that no case had arisen to authorise the sale, or
that due notice was not given, or that the power was otherwise improperly or
irregularly exercised, but any person damnified by an unauthorised or improper
or irregular exercise of the power shall have a remedy in damages against the
person exercising the power.
(4) The money which is received by the mortgagee
or chargee, arising from the sale, after discharge of prior incumbrances to
which the sale is not made subject (if any), or after payment into court under
this Act of a sum to meet any prior incumbrance, shall in the absence of an
express contract to the contrary be held by the mortgagee or chargee in trust
to be applied by the mortgagee or chargee, first in payment of all costs,
charges, and expenses properly incurred by the mortgagee or chargee as
incident to the sale or any attempted sale or otherwise; and, secondly, in
discharge of the money, interest, and costs, and other money (if any) due
under the mortgage or charge and the residue of the money so received shall be
paid to the person entitled to the mortgaged or charged property or authorised
to give receipts for the proceeds of the sale thereof.
(5) The power of sale
conferred by this Act may be exercised by any person for the time being
entitled to receive and give a discharge for the mortgage money or the money
secured by the charge.
(6) The power of sale conferred by this Act shall not
affect the right of foreclosure.
(7) The mortgagee or chargee, the mortgagee
or chargeeās executors, administrators, or assigns, shall not be answerable
for any involuntary loss happening in or about the exercise or execution of
the power of sale conferred by this Act or of any trust connected therewith,
or of any power or provision contained in the instrument creating the mortgage
or the covenant under which the charge arose.
(8) At any time after the power
of sale conferred by this Act has become exercisable the person entitled to
exercise the same may demand and recover from any person other than a person
having in the mortgaged or charged property an estate, interest, or right in
priority to the mortgage or charge, all the deeds and documents relating to
the property or to the title thereto which a purchaser under the power of sale
would be entitled to demand and recover from that person.
(9) This section
does not apply to mortgages or charges under the Real Property Act 1900 .
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