SUPREME COURT.

Press, Volume XLIV, Issue 6786, 24 June 1887, Page 2

SUPREME COURT.

I » ! SITTINGS AT NISI PBIUS. Thursday, Junk 23. [Before His Honor Mr Justice Johnston The Court opened at lO.ao a.m. # iI'KAT AND OTHEKS V OItAM AND OTHERS. In this case Margaret McKay and her son, R. M. Stewart, were plaintiffs and the executors of the estate of the' late M. H. Oram and the Permanent Invest, ment and Loan Association as mortgagees defendants. ' Mr Austin with him Mr Russell for plaintiffs, Mr Garriek with him Mr Hol©ea for defendants. This was an action for the recovery of two sections of land in Christchurch, com. prising half an acre or thereabouts, situate in Oxford terrace, on which is built the Royal HoteL Mr Austin took the preliminary objection that the defendants having joined In their defence there could not be separate counsel for the defendants. Ho therefore took objection to his learned friend Mr Garriek appearing for one defendant and Mr Holmes for another. Mr Garr.ck submitted that the question of the decree must have a separate effect on the interests of eacli party. His Honor said that he was not prepared to say at present until After some further argument between , his Honor ami the learned counsel engaged, His Honor said he should rule that Mr Holmes hod a right to cross-examine wit- ;: nesses ami address the Court upon any matters affecting the interest of the mortgagee. A brief sketch of tho case will bo necessary to understand it, the pleadings being most voluminous. Iv the early days of the settlement a land order of the sections was granted to Dr. Merryon, - afterwards transferred to Mr R. J. S. Harman. On tho 17th December, 185(5, Dr. Merryon granted a lease of the sections to W. Stewart for twenty years, with a purchasing clause enabling the purchase for £100 within the first seven years. On the 19th March, 1857, Stewart mortgaged his leasehold interest to one Chapman. On the 18th July 1557, Stewart made his will, bequeathing all his property to his wife and two sons. The wife of Stewart, with Rev. C. Fraser and Mr D. Innes, of Timaru, wero appointed as executrix and executors respectively. On tho 2oth December, ISJ7, the testator died, and the will was duly proved. On the sth May, 1858, before probate was obtained, the trustees paid off the mortgage to Chapman, and took 'a re-conveyance. On Juno 19th, 1861, Mrs Stewart made a mar- \ riage settlement of her annuity under the will, and on tho 20th June, 1801, she married D. M. McKay. Tho £100 purchase money to Dr. Merryon was paid on the iS)th December, 1602.. Mr Ilarinaii, the holder I of the land order, assigned it iv blank, which blank was probably tilled up in 1872 . in the name of the Rev. C Fraser. The plaintiffs alleged that the trustees went into unauthorised building speculations, resulting in a debt to Mr T. S. Duncan, and the bringing in of the estate in debt to the extent of iSIC'JO. The Re». C. Fraser mortgaged the estate to tlio New Zealand Trust and Loan Association for £000, of which Mr 'Duncan received £400, the balance being taken by Rev. C. Fraser. The latter executed a deed of trust to the effect that ho held the Crown grant for the sons of the testator, Charles Stewart, since deceased, and plaintiff and W. M. Stewart. On the Gth August, 1872, W. M. Stewart came of age. Charles Stewart left the colony, and has not been heard of for some seven years, the plaintiff, Margaret McKay, taking out -letters of administration. In April, 1878, Rev. \ C. Fraser himself sold the pro- ) perty to the Oram Bros, fir £$00. A The plaintiff alleged that t:u Oram Bros, had notice of the trusts oi the will, and that the sale woa grossly under value. It Was alleged that tlic Oram Bros, had knowledge of the trusts through tho lease of the Boyol Hotel to one Dunford, their conveyance being token subject to the lease. It was also alleged that an abstract of title was sent to Garriek and Co. by Hanmer and Harper. „ > It was further alleged that ; the property was worth from £4000 to £5000, or some £2000 more than was paid for it, and that the Oram Bros, were aware of it, Tho executors of the Oram Bros.,' the preeent defendants, mortgaged the property to the Permanent Investment Association, who .had notice of the trusts, it was alleged, by having searched the I&nd Jtegistry before making the advance. For these'reasons the plaintiffs sought to recover possession. ' ■ -r • Mr Austin, for the plaintiff, submitted that,the issues should be as under:—(li Did the Oram Bros, buy the Royal Hotel with notice of the trusts of the will of the late Wm. Stewart? (2) Did they buy the Royal' Hotel with that notice, and knowing it to be under value? (8) Did the Permanent Investment and Loan Association take the mortgage with notice of the ."trusts? ■'. ■■ ■■■.. ~ ...;■,- . Evidence woa then led for the plaintiff asunder:— " .. : . Pl George Dunnage; clerk in the Land Q{Bce, deposed to the dealings by Bey. C. \ IlYaser with the. : land, order, and Crbwn grant, and gave, evidence that the latter was made out in favor of tho "Rev. C. Fraser. '■.■■•- ■'.■■■■■•..-.■ : ..JR. J. S. Harman deposed fcj to the transfer of the liiud bfuer affecting the sections in dispute to Roy. Chan. Fraser. The receipt, produced, for £108 purchase money and *' £101 rent, on'account of Dr. s Merry6riy parroted to be from the firm of Harman and Ste vena, but Jiadtheii* books riot T corroborated i| he should haye> had doubts as to thetdgnatttre being that of the arm. The endorsement on the land order to the Rev. Charles Fraser was partly in the handwriting of the witness. The liaine of Rev. Chftrlee Fraser was not in the handwriting ol witness. Ue liad no doubt in his own mind that it was in that of a clerk to Mr T. S. Duncan named Tully. He could not say whether the name Rev. Charles Fraser was tilled in before witness signed it. Crbss-examlued by Mr Garriek: Witness had known the property in question since 1850 and acted ua the agenfcof Dr. Merryon. No one else acted is agonb for Dr. Merryon from the tint 6 witness took charge of it, but the property was leaacd before it came into his hands. Mr Odes, Chief Surveyor, built a cottuge on the section in 1851; and very shortly after it was turned into an hotel: The purchase money for the section was paid in January, 1863. He could not say from memory what the buildings on the section were at a particular time, nor as to the state of repair of them. Witness - could not 'say 1 as to the value of the property in 1878, but it would depend materially, on the manner in which the hotel was conducted. He could, not say what was the relative value of the Royal as compared with the Clarendon Hotel in April 1878. Probably the Ciarendon site would be more valuable than that on which the Royal Hotel was situate, and that the Clarendon Was at this time more valuable than tho Royal for hotel purposes.-: ■■ •.; . •■•■•■■•■■..■■ •" '« w Mr Austin here put in a number of documents relating to the case. _ A. R. Bloxam, Recriatrar of tho Court, produced several, documents Hied in the Court ; " ' ? .. . Mr Austin now proposed to prove that Charles Stewart was a lunatic when he signed a certain document. Mr Garriek objected that he had not received any notice of the Intention-of-the plaintiff to ebdW the Insanity of Glories Stewart at a certain time. ! ; Bin Honor held with Mr Garrick.> If Mr Austin wished togo into this matter, the trial would have to be postponed, to enaDle the defendant to controvert it. Mr Austin would then not produce the evidence now, but would ask leave to give it as rebutting evidence. Thomas Pappriil deposed as to the negotiations for the sale 6f tho Royal Hotel to the Oram Bros., which was conducted on the part of tho mortgagee by Hanmer and Harper. In thebilfof costs rendered by the firm to Rev. Fraser, there was an entry, " preparing ari abstract of title. It was sent to Messrs Garrick and vo. acting for Oram Bros., on 29th April, 187&. There was an item" searching registry •Iβthe bill of costs. This search was before the completion of the title.- < In cross-examination by Mr GarrlcK tne witness deposed as to the application ox' the mortgage mi >aey of £3200. The further vrqss-examination of tniewitness was postponed until the mortgage deed was proved. Frederick 11. M. Walkev deposed that In 1878 he was in the employ of Miles, Kaa- .. sail and Co., in charge of their landaoener business. He had had twenty-eight 'years' experience in valuing property. Hβ knew the Royal Hotel. In April, 1878, he was of opinfnn that ita value was between £4300 and£sooo. Land values were very high then, and tho value of hotels was far greater in 1878 than now. - In cross-examination by Mr Games, tne witness deposed that his business IB Miles,, Ha^aj : aß^£a^gaSLtoi n fl^BUffl^l£feHS

.remnwmente for the sate of the Royal HotelV«* in the hands of Mites and Co. tbev would naturally come under thedeSrtment of witness. Witness rec.Uected SSe «Hre«>oadence with «*«««£ Jg payment c 7» mortgage A *3»*J«"S* £L*oe of £230 was applied for. «>d crated; foTthe purpose of erecting a buOwefor Mrs aicKayTLTbe witness then went greatfcurth tostate what had been uS'lfr HTOram of the Royal jmms knew of his purchasing the RoyaL ifcTkoram «d himself had some con- . Witness said it was worth•obm&OOO or wcSdh^e'beenabargain.atJaOOO. Witaese would hare given £*«0. . In ans«*-exaraination by Mr Holmes, tne ££se oTanjfhins about it, except from eon versa* ioos with Mr Oram. Rowe deposed to baring a coni££&£ with Mr M. H- Oram BDRhaaed the iioval HoteL He.toldwitSewhefaad been offered £1000 on bis bargain jast after he had purchased the proIn by Mr Holmes the witnes* *aid he understood Mr Oram had Riven £4000 for the Royal HoteL The conversation took place when the alterations were coins on- Witness did not know that the alterations were made a year after the purchase. ... George Simpson deposed that he had intended to bay the Royal Hotel when it warn pat up for sale, and had arranged in bis own mind to go up to £3000 for It Witness saw Mr HI Oram a dar or two «fter the sale, who told him he had bought Ir. Witness asked him if he would take doable his money on it, bat he declined it. In crews-examination by Mr Gamck the witness stated tnat in 1810 he became bankrupt. Mr John McFatiane, of Coldrtmm Rmgion, offered to advance whatever money he was short of to purchase the Royal HoteL I The witness wascrossexammed at very | exeat length as to his circumstances at the time of the bankruptcy. The Court at IXI p.m. adjonrned until j JOaO a-m. to-day. j