DEFAULTING FARMER.

Auckland Star, Volume LIX, Issue 97, 26 April 1928, Page 18

DEFAULTING FARMER.

TO LEAVE HIS LAND. IMPORTANT LEGAL DECISION. Mr. J. FT. Luxford. S.M., has issued his judgment in a ease from Onehunga in which interesting and important points are raised. It was an action by the State Advances Superintendent against Alexander Campbell, farmer, ot Awhitu, for the possession of a farm. The proceedings were taken under Section 118 of the Land Transfer Act, 1915 —a section which has never previously been invoked. Mr. Luxford made an order for the land to be give-n up within 14 days, but made no order as to damages or costs.

Mr. \V. E. L. Napier appeared for plaintiff, and Mr. T. J. Fleming for defendant.

The magistrate said the State Advances Superintendent was the mortgagee of the defendant's farm at Awhitu, near Onehunga. The farm, which was held by the defendant—partly under an occupation with right of purchase license and partly under a lease in perpetuity—from the Crown, comprised in all 152 acres. In 1015 the superintendent advanced defendant the sum of £100 on the security of the farm. The mortgage, which was duly registered, contained the usual terms and also provided for the. repayment of the principal sum. together with interest thereon b\ a series of half-yearly instalments. Land Not Properly Worked. Defendant had been a very unsatisfactory mortgagor. He had made default in the payment of his half-yearly instalments; he had not worked the land in a proper and husbandmanlike., manner; and he had not paid the ground rent. During the last five years the superintendent had given him every opportunity to make good his default. About two years ago defendant agreed to a definite scheme for the liquidation of the arrears in his payments, but failed to comply with it.

The superintendent, acting under instructions from his board, then took steps to exercise the power of sale contained in the mortgage. The property was put up for sale by public miction, but as no bid was made, the property was passed in: thereafter endeavonrs were made to sell by private treaty. On July 16. 1927. a contract for the sale of the farm at £75 was entered into between the superintendent and one Colbeck. ociiditionallv upon the superintendent giving vacant possession. Mr. ("••' heck knew that the defendent wa=> possession of the farm, and accordin stipulated that he should not be called upon to complete his purchase until t]»<» defendant left the property. The solicitors to the superintendent wrote the defendant on July 21. 1027. inform in? him that the farm had been sold to Mr Colbeck and calling u?>on him to remove stock and chattels and to vacate immediately. Defendant at once despatched a telegram to the in which *••• stated that he had the necessary money to pav all arrears: the superintendent replied that. it. was too late to pay the arrears, and that he vacate +V nr/ipertv. A few davs later the defen dant wrote the snnerintendent cnmilai" ing about tbe low price at which tlv nropertv had been sold: be ron'M-'"' however. that he had been care Us. nnd said he would leave the farm "for good an? 1 all immediately."

Refused to Leave the Fapn. In spite of this very clear and definite promise the defendant did not leavp -*<<■• farm; on the contrary he very clearly and definitely refused to do so when personally requested by the Departmental realisation officer. The superintendent then decided to take active step 3 to eject defendant, and on Febhuary 27 last the superintendent's solicitors sent a letter to the defendant notifying him of that decision.

As the defendant persisted in his refusal to give up possession, the present proceedings were commenced, seeking an order from this court that the defendant deliver up possession of the premises, and claiming damages amounting to £58 15/ alleged to have been sustained by the superintendent. Defendant, hv his counsel, formally admitted for the purposes of the action: "That at all material times he was in default in bis payments under the mortgage sufficiently to entitle the superintendent to exercise his power of sale." If the superintendent had commenced proceedings in the Supreme Court', and the foregoing facts had been proved. an order for possession would have been issued. The defendant challenged the jurisdiction of the Magistrates' Court to hear and determine the present action upon two grounds. M'\ T.nvfiv 1 n>ave reasons why the Magistrate' 4' r 'ourt had jurisdiction to hear and determine the action. As no other objection to the claim for possession was raised, the superintendent wns entit'"-' to the order he sought. The claim "f the superintendent, for the sum of €.>S 15/ special and general dam-'"cs sustained by him hv reason of the de fendeTit's failure to give up possession was held to he not proved, and therefor" failed.