Ashburton Case at the Christchurch District Court.
Yesterday—Before Judge Ward. COLONIAL BANK OF NEW ZEALAND V. ISAAC SARGEANT. Mr. Joynt for plaintiff; Mr. Harper for defendant. This was a claim of £2OO for rent due (£lO 16s Gd being abandoned) as per lease of 937 acres of land. John Thomas Warren, Manager of the Colonial Bank, Christchurch, produced the Crown grants to 0. F. Barker of the various lands included in the lease. The lands were mortgaged to the New Zealand
1 rust and Loan Company, and subsequently transferred to the Colonial Bank. Witness produced a mortgage —Saunders and Henderson —on the same lands ; and the lease of Sept. 17, 1877, the subject of the present action. The land specified therein was 937 acres at 9s per acre, payable half-yearly. The half-year’s rent became due on August 1 last. The rent had been demanded from Mr. Sargeant, who had refused payment. To Mr. Harper : Took the property over from the trustees in Saunders’ estate, and the Bank now held the property free from any mortgage. In reply to his Honor, Mr. Harper intimated that his case would depend upon the status of the Bank in the matter at the time of the transactions ; it would be a question of dates. Mr. Joynt : The date of the first mortgage by Saunders and Henderson was Sept. 8, 1877, subject to lease ; and the subsequent transfer was on May 18, 1879. For the defence, Isaac Sargeant said he was the lessee from Saunders and Henderson, under lease of Sept. 17, 1877. In August, 1878, he sold to H. W. Parsons the interest in the lease—an agreement being made. (Document put in.) His Honor : This on the face of it, purports to be an assignment. Mr. Harper did not rely on this as a surrender. Witness gave up possession, and eventually got paid the LI,OOO mentioned. Was served by the Colonial Bank with the notice produced, dated May 9th, 1879, calling upon him to pay all rent to the Colonial Bank. Was not then in possession of the land, and after giving up possession did not pay rent to any one. Received the letter produced from Saunders Bros., dated April 28th, 1879. To Mr. Joynt.: The agreement was signed in Christchurch. Independently of the notice, had since received a letter from Messrs. Joynt and Perceval demanding the rent. Supposed the parties in possession had paid. The LI,OOO was paid by bill taken up by one of the Saunders. Was never called upon to sign a transfer, and never did so. Mr. Harper admitted that there was no formal surrender. William Saunders, before being sworn, stated that he had come 60 miles. He claimed expenses. Mr. Harper would be willing to pay expenses allowed by the Court. The witness deposed to purchasing certain land which was subject to a mortgage to the Trust and Loan Company, and to leasing a portion of it to Sargeant. Sargeant sold his interest to Saunders Bros., Parsons being their manager. Witness was a member of the firm at that time—it consisted of Edward and William Saunders. Witness was at the same time a member of the firm of Saunders and Henderson, dissolved in August, 1878. Henderson transferred all his interests to witness, there being at the time a mortgage to the Colonial Bank. Subsequent to the purchase of Sargeant’s interest witness filed a deed of assignment in March, 1879 ; and since the assignment, on Jan. 7, had transferred his interests to the Colonial Bank. Saunders Bros, took possession of the land in question, and, as Saunders and Henderson, witness received the rent from Saunders Bros. Did not know if Sargeant had ever resumed possession of the land. Thought that Saunders Bros, paid rent to the Colonial Bank. To Mr. Joynt : The firm of Saunders Bros., of which witness was a mem-
ber, purchased Sargoant’s interest in the lease. The firm had only the agreement handed in. The name “W. Saunders” thereon would be written at the time. Sargeant took the document to a lawyer, and on coming back demanded that the name should be written. Had neither meaning nor motive, excepting that Sargeant asked him to sign it. Would swear that at that time, and until, the assignment of the property, he looked upon the linn of Saunders Bros, as the owners in that lease. Made his assignment in March, 1879 ; and would swear that the halfyear’s rent which became due was paid by Saunders Bros, to Saunders and Henderson, by adjustment of current accounts. The rent was actually credited by the one firm and debited by the other. Saunders and Henderson dissolved partnership in August, 1878. Mr. Joynt : Then how did they become entitled to rent due in 18791 The witness—W. Saunders was successor to Saunders and Henderson, and he alone received credit for payment. It was at the end of August t)ie partnership was dissolved : thought it; was then. Witness then looked upon himself, from August, 1870, as the owner of Sargeanc’s interest. Could not say why a transfer was never executed by Sargeant to Saunders Bros. Did not remember saying he had no interest in the property save as Sargeant’s lessor. Might have had correspondence with Mr. Gresson. The initials on the letter produced, “F. P. would be those of witness’s book-keeper. (Letter read and put in, stating that W. Saunders regarded himself as an ordinary lessor.) Witness was aware of the sending of the letters now being produced. (A second letter to Mr. Gresson was pint in.) Knew nothing of rent having been paid by Messrs Garrick and Cowlishaw to the Colonial Bank. Did not recollect saying at the Resident Magistrate’s Court, in answer to Mr. Gresson, that he had no interest in the land.
To Mr. Harper : Witness had, at times, said he had no interest. Perhaps Henderson did not know that the property was being transferred to Saunders Bros., nominally to Parsons. James Henderson deposed that in the special property he assigned his interest to Saunders some time before the dissolution. In August or September, 1878, a document was signed in Saunders and Henderson’s office, assigning to one Parsons. Believed at the time that Parsons was purchasing for himself. Had reason to change his mind afterwards, when Saunders showed him a telegram advising the sale of 300 acres, and remarked that he (Saunders) had done very well out of it. To Mr. Joynt: Ho said that he, and Saunders Bros, and Parsons were all one. Witness had this remark in a note-hook, but not with him. This was in October. H W. Parsons was the man referred to Witness received rent upon one or two
occasions—an entry was made in the current accounts. Gould not say how the rent which became due in February, 1879 was paid. Witness was the liquidator of the estate. Could not say without references, if there was a credit entry to Saunders Bros., in February, 1879, recording the payment of the rent. By arrangement the witness here retired to obtain the information.
Samuel Saunders, Ashburton, member of the firm of Saunders Bros., deposed that his brother William was a member of the fix-m up to August, 1879, and that Parsons was a manager. William knew of the sale of Sargeant’s property. The Parjons mentioned in the agreement virtually represented Saundex-s Bros. ; he was outside manager'. Saunders Bros, had vacated the land some time. Did not know who was now in possession. Rent was charged to Saunders Bros, in account current to Saunders and Henderson. A subsequent payment was tendered to the Colonial Bank, but not accepted. At the time, Sargeaut was a customer of the firm.
To Mr. Joynt ; Did not know why in the agreement Mr. Parsons was described as “ of the Kaikouras,” nor why he was made a party to the transaction. Witness did not think he held any communication with Sargeant ; was not then a member of the firm. A gentleman in Nelson was wanting to purchase such a property, and thereupon witness wrote to Sargeant. Did not know that Sargeant was kept in the dark. On Feb. 11, 1879, the half year’s rent was charged to Saunders Bros, in account current between Saunders and Henderson. Parsons was the farm manager, 'and the Wilson mentioned in the letter to Sargeant was the outside manager. Vacated the farm about a month ago. Did not attempt to give it up to anybody. James Henderson, recalled: In William Saunders’ books, in Feb., 1879, there is no rent debit as stated.
To His Honor : There is no entry of it. Mr. Joynt ; We knew this all along. Isaac Sargeant was recalled. Replying to Mr. Joynt, witness said that Mr. Saunders told him Mr. Parsons was the gentleman whom he had written about. Mr. Parsons was introduced to witness as a gentleman from the Kaikouras. Had no idea he was selling to Saunders Bros.
To Mr. Harper : Saunders Bros, wished the rent to be paid in the name of witness.
A letter was here put in, written by Saunders Bros, to Sargeant, in which Sargeant was asked to write to the Colonial Bank, intimating that he would forward cheque for rent on receiving an account. Saunders Bros, wore to repay him the money. John Thomas Warren, recalled, deposed that ho received twelve months’ rent up to Feb. 7, 1880, from Messrs. Garrick and Cowlishaw. Gave them a receipt as for Sargeant. Mr. Harper submitted there had been a good surrender of the property by operation of law, bringing the matter outside the Statute of Frauds, and that there need be no surrender in writing. Learned counsel went on to quote cases in support of his argument, and at the conclusion of his address, the Court adjourned. On resuming, Mr. Joynt replied at considerable length. He submitted there was cogent evidence, leading to the belief that the alleged transactions indicating the release of Sargeant had been trumped up, and that recently. The Court had a right to assume that Mr. Parsons was really the purchaser, and that nothing subsequently done constituted a surrender by operation of law, by deed, or by contract.
His Honor intimated that he would reserve judgment.
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