CHRISTCHURCH DISTRICT COURT.

Ashburton Guardian, Volume 2, Issue 186, 6 November 1880, Page 2

CHRISTCHURCH DISTRICT COURT.

Friday, Nov. 5. (Before His Honor Judge Ward.) COLONIAL BANK OE HEW ZEALAND V. ISAAC SARGEANLV ' Claim, L2OO, for rent. In this case his Honor gave judgment for the defendant, with costs,-in the following terms;^ The facts in this case' are as follows : On Nov. 3, 1875, Barker, tenant in fee simple of certain land, mortgaged it to the New Zealand Trust and Loan Company, and subsequently, on the 17th \ug., 187(5, transferred it to Saunders and Henderson, On the Bth September, 1877, Saunders and Henderson mortgaged it to the Colonial Bank, and on September 17 leased the land by deed for a term of years to defendant. In December, 1878, Henderson transferred the land in question to Ins'joint tenant, Saunders; but this transfer, with the lease and mortgage to the Colonial Bank above mentioned, were not registered until Jan. 11, 1879. On May 18,1879, the Trust and Loan Company assigned their mortgage to the Colonial Bank, who thus became sole mortgagees. Saunders subsequently made an assignment in favour of his creditors, and the Colonial Bank, having an agreement with the trustees, took a final transfer of the property from him, thus becoming tenants in fee of the land in question. It appeared that in 1877-78, William Saunders was a member of two firms, namely Saunders and Henderson and Saunders- Bros. In August, 1878, Saunders and Henderson entered into a negociation with Sargeant for the sale of his leasehold interest to one Parsons, who was represented by them to be a stranger from Kaikonra, but who was actually in the employ of Saunders Bros.. Sargeant agreed to sell his interest to Parsons for LI ,000, signed an agreement to that effect, und.evtooh tq execute an assignment pf his lease at a future time, and got a bill for the money, given by Edward Saunders, which was duly paid. No subsequent assignment was executed

by him, but he subsequently gave np possession to Parsons, and it was stated by the learned Counsel for the Bank, that the Saunders Bros, .subsequently took possession, and took a crop off the land, vacating it .afterwards. Henderson was awaio of the sale by Sargeant of his interest, but did not interfere ; and the partnership between William Saunders and himsolf was dissolved a few days‘after the agreement for sale was signed. The signature of William Saunders appears on the agreement for sale, and the negotiation appears to have been conducted entirely by him. Parsons held possession merely for Saunders Bros. Ihe Bank now sue Sargeant for rent accruing in February last, contending that there was no valid surrender of the lease by him to Saunders and Henderson. I am of opinion that this contention cannot be supported. No doubt there was no formal memorandum made on the lease to record the surrender. No doubt, also, Henderson in no way interfered, though he was aware of the sale. But as he was on the eve of leaving the firm, and was further aoout to assign his interest in the land in question to his partner, it seems only natural that he should have left that partner to conduct the whole business ; and under these circumstances it must be inferred that Saunders had authority to act for both. As to the rm-render to Saunders, I think that is clear from Sergeant's evidence. He (Sergeant) gave up possession to Parsons with Saunders’ knowledge and at his request and where there is an agreement between landlord and tenant that the latter shall deliver up possession, and possession is delivered up accordingly, that is a surrender by operation of law. No doubt William Saunders’ evidence was unsatisfactory, to say the least; but there was no contradiction of the most important part of it. Judgment for defendant, with costs. Mr. Joynt intimated his intention to appeal.