SPECIAL LAW REPORTS.

Dominion, Volume 1, Issue 14, 11 October 1907, Page 6

SPECIAL LAW REPORTS.

APPEAL COURT. ■ Their Honours tho Chief Justice (Sir Robert Stout) and Justices Williams, Denriiston, Cooper and Chapman took their seats at 10.30 a.m. yesterday. • AN AUCKLAND CASE. Argument'was ,hoard. in the case, Turia Paid and others (appellants) v., Kenneth Finlayson and Annio Elizabeth.' Finlayson (respondents). This was a motion that (1) the whole of tho judgment of the Supreme Court of New Zealand, Northern Judicial' District,' delivered, by His Honour : Mr. Justice Cooper on June 3, 1907, in an action in which Turia Paki and otherswere the plaintiffs and Kenneth Finlayson and : Annie E. Finlayson, tho , defendants, bo reversed , and that judgment .be entered for the plaintiffs, and (2) that tho appellants' costs of the appeal and of the proceedings in the Court belqw.be ordered to be paid- by the respondents to the ap-. pellantsl...'■ •'.". _ . ... The material facts in the case were, it was' pointed out ; by ■ Mr.' Justice .Cooper in' the' judgment appealed against, as follow: — ' "Oh May 15, 1567, an'order of the Native. Land Court, was made under the 'Native' Land Act, 1865,' that a ;. certificate of titlo bo issued to certain aboriginal natives named Hira To Awa, Te Kau, Hepana,' Paratoue te Taurua, and Pakiripi, certifying that.they wore the owners according to native custom

6t '# 'block? bf "laiid' consisting of 12,316 acres ' and called Nukutawhiti. On JutiS'27,'Uß67," a'certificate in. accordance with such order was issued.; On November 6, 1867, Pakiripi died.- On November 16, 1867, a Crown grant was issued to the" natives above-named.• including' Pakiripi: ',To hold unto the said Te Kau, Hepana, Paratene to Taurua, Hira to Awa; and Pakiripi, their hoirs and'assigns for ever.' On August 28, 186S, Hira To Awa died. .On vembers, 1868, tho three surviving' owners convoyed tho block to one Win. Aitken. On August 11, 1897, Aitken conveyed'' the land to the defendant Kenneth' Finlayson and one Donald Finlayson as tenants in common'in equal shares, and on May 29,1904, Donald Finlayson'conveyed his interest in the block to the defendant Annio Eli: zabeth Finlayson. On September 15; 1871, a native'named'Te Paki was appointed by.tho. Native Land Court successor to Pakiripi. Te Paki having since died, the Native Land Court on Juno':2l, 1902, appointed the 'plaintiffs as his successors, and on May 15, 1904, a partition order was made by the.Native Laud Court-purporting to award the plaintiffs 2433 acres of tho-.origi-nal block, this being tho • one-fifth interest which the plaintiffs claim to have vested' in ' them" as successors through To Paki to Pakiripi, one of the original owners. ' The plaintiffs have brought an action against. the defendants praying for a decree that they, the plaintiffs, are the owners of one'undivided fifth part of the original block, or in the alternative that thoy are the owners of tho 2433 acres awarded'to'thorn, under the partition order dated May 15, 1904. "The questions of, law stated for argument were—(l) whether upon tho proper construction of'the Crown _ grant a joint tenancy.was created by it;. (2) what effect has a Crown grant issued without an anti-vesting clause to, a number of natives, ono of whom had died before tho Crown, grant was issued, whero the limitation is to the named grantees including the dead man and their heirs, and assigns; (3) whether under such a grant issued to a number of-natives, ono. of whom was the deceased, at tho timo of tho issue of the grant, tho Nativo Land Court had power to appoint successors to the deceased native in respect of any interest in the land so granted and subsequently to partition tho land and to award a specific portion to such successors.".

Tho Court held that th eanswers to -tho questions must be as follow:—. " (1) Tho land granted to the fivo natives was : held by them in joint tenancy as from the dato ' they' became entitled to tho grant; (2). this question is- answered by tho answer to 1; (3) tho Native Land- Court had no power to award to Pakiripi!s successors any part of tho block, tho whole block having been conveyed in November, 1868, by the surviving joint tenants to Aitken. Plaintiffs could not, therefore, proceed with • their action withont attacking the Crown'grant, and for that purpose they must comply with the provisions of the 'Titles Protection Act, 1902.-' Tho Court ordered plaintiffs to pay ten guineas costs and Court fees." Mr.' Skorrett, K.C. (with him Mr. Levi). appeared for the appellants, and Mr. H. M'Grcgor for the respondents. Upon tho conclusion of a'gument, which lasted throughout tho day, tho Court intimated that it would take time to consider its judgment. • The Court adjourned until 10.30, this morning, when argument in'tho case of tho Assets Realisation Board v. the District Land Registrar will bo hoard.