A DIFFICULT POINT.

Auckland Star, Volume XLI, Issue 27, 1 February 1910, Page 6

A DIFFICULT POINT.

appeal coon: DECISION. tSy Telegraph.—Press Association.) WELLINGTON, this day. The Court of Appeal, presided over by Judges Cooper and Chapman, this morning gave judgment in the case of Campbell v. the District Land Registrar, which was heard last October. The facts were, hriefly, that appellant was the mortgagee of land under ihe Land Transfer Act, and the mortgagor had more than 20 years ago abandoned the land and disappeared Default had been made in payment of principal and interest under the mortgage, and the land had been in vacant' possession for more than 20 years. Appellant attempted to exercise his power of sale under the mortgage, but the District Land Registrar refused to register the transfer from him to tne purchaser, on the ground-that the remedy of the mortgagee against the land was barred by the provisions of the Statute of Limitations. This contention was upheld by Judge Edwards, in the Supreme Court, and the appeal was from his decision. On the appeal a new point was raised by Dr. Bamford, for the appellant, which had not been raised in tbe court below, viz., that by virtue of section 61 of the Land Transfer Act the Statute of Limitations had no application to that Act; that, a registered proprietor of a mortgage could exercise his statutory powers of sale npon default, no matter how long a period had elapsed. Separate judgments by each judge were delivered. The Court was unanimous in the opinion that, apart from the provisions of section 61 of the Land Transfer Act, the right of the mortgagee to sell the land would have been barred by virtue of the Statute of Limitations. Judges Williams, Denniston and Cooper, however, concurred in holding that, by virtue of section 61 the Statute of Limitations had no application to the land under the Land Transfer Act, and that, therefore, the mortgagee had, upon default, a right to exercise his power of sale at anylater period of time. Judges Edwards and Chapman dissented from the view of the majority of the Court, holding that the statute of limitations applied genera3y to ail mortgages, whether under the Land Transfer Act or not. The result of the judgment was that the appeal was allowed, and the transfer ordered to be registered The question of costs of appellant' was reserved until next sitting of the Court of Appeal. Costs of respondent in both courts, as between, solicitor and client, were ordered to be j paid out of the assurance fund j