POSSESSION OF LAND.

Press, Volume LXV, Issue 19666, 9 July 1929, Page 4

POSSESSION OF LAND.

A RANGITATA CASE. JUDGMENT FOR DEFENDANTS. His Honour Mr Justice Smith has given his reserved judgment in the ease in which the possession of a piece of land of 1341 acres, at Kangitata, was claimed by Mrs Irene Hart MeConnell, Ashburton, widow, executrix of the Will of the- late Henry MeConnell, from Archibald George McCormick and John Stewart McCormick, farmers. It was claimed that on June Ist, 1920, Henry MeConnell, by agreement for sale and purchase, agreed to sell, and William Garland Chapman agreed to purchase a piece of land situated in the Bangitata Survey District, at a price of £lO per acre. In 1923 an amending agreement was signed and defendants were substituted for Chapman, who was released from liability. The new agreement contained a clause that Henry MeConnell would be entitled to cancel the agreement if default should arise, and continue for three months, in payment of any purchase money or interest due under the agreement. The agreement contained clauses which required the purchaser to keep the land free from noxious weeds, broom, and gorse, aud to keep all buildings upon the land in good order and condition. Henry MeConnell died in August, 1927. Defendants had defaulted, and on February 6th, 1929, plaintiff wrote to the defendants cancelling the agreement. Defendants had neglected the notice, and refused to give up possession of the land.

The defence denied a default and also denied that the plaintiff, by notice in writing, cancelled the agreement. For a further defence, it was stated that if the plaintiff should prove any default in the performance or observance of any clause of the agreement, the plaintiff had failed to serve upon the defendants any notice under Section 94 of the Property Law Act, 1908, or otherwise, howsoever, specifying the particular breach complained of, or requiring the defendants to remedy any breach, or requiring the defendants to make compensation in money. In his decision his Honour states: "1 declined to non-suit the plaintiff on her own case, and the defendants called evidence. As I am of opinion that the notiee is bad, it is not now necessary to consider the evidence in detail. "In the present case, the only notice which can be relied upon is the notice of December 13th, 1928. I think that that notice is wholly bad for the following reasons:—(l) It does not specify the particular terms (for covenants") stated to have been broken. The responsibility was on the plaintiff to specify those terms and not upon the defendants to speculate as to the particular terms to which the notice was intended to refer. (2) It requires compensation to' the extent of £IOOO as an alternative to the remedy of breaches which are capable of remedy, and which are required to be remedied. Such a form of notice is not authorised by the Section. (3) The notice ought to be regarded in globo, and even if the specification of one or two breaches were good, the others are bad and the whole notice is bad. • ; •. The plaintiff was under

no obligation to specify anj time t in her notice. but onb to wait a reasonable time before bring ing Iter action. The month so epeeifie< ie an unreasonable time in that the So lieitors' offices were closed during thi Christmas and Xew Tear Holidays which occupied the larger part of th< month in question. It is also unrea sonable in respect of two other items, for the evidence shows that a reasonable time in respect of the clearing, would have extended at least to the winter of 1929. All the items are again grouped together by the requirement of paying compensation to the extent of £IOOO in lieu of remedying them. I am of opinion that the good specification or specifications were so linked with the bad specifications, that it was impossible for the defendants to know with reasonable certainty what they were required to do in order to avoid a forfeiture. They did not have in respect of any good item, so coupled with the other items, sufficient information to enable them to determine what course of action they should adopt. The who* sotiee u, therefor*, fc*4, and

the plaintiff is not entitled to tring this action. "Judgment will be for the defendants with costs on the middle scale as on a claim for £250, with disbursements and witnesses' expenses to be settled by the Registrar. I certify for estra counsel for one day at £6 6s.'' At the hearing Mr L. A. Charles appeared for the plaintiff and Mr J. 11. TJpham, with him Mr Xicoll, for the defendants.