LAW REPORTS.

Dominion, Volume 2, Issue 526, 5 June 1909, Page 10

LAW REPORTS.

SUPREME, COURT, - DISPUTE A3 TO A MORTCACE. THE ETHICS OF MONEY-LENDING. SEVERE CROSS-EXAMINATIONS.' Some interesting evidence was given in the course of the hearing of the action between Lydia Eloise Somorviße, ..Wellington, and Geo. Lambert, which took place beforo Mr. Justice Cooper yesterday. Mr. D. M. Findlay appeared for plaintiff, and Mr. Skerrett, K.C. (with him Mr. Lev- . f ny) tor defendant. Pros and Gona of the Case. .The statement of claim set forth that, in 'August, 1908, defendant agreed to lend plaintiff. £188. In consideration of tho loan plaintiff .'gave' dofondant a second mortgage over a property known as No. 27 Owen Street. , Defendant, it was alleged, had advanced to plaintiff only £05, and had improperly withheld tho balance, Tho arrangement was that tho loan was to bo repayable by.sixty monthly instalments of £i fas. 6d., reducible to £3 Bs.' (kl. Dofondant aJlogcd that default had,been mado, and proceeded *to sell the property., It was claimed, by plaintiff, that tho\»lflrtgago was given in 1 consideration of of tho principal moneys, If defendant were allowed to proceed wjth the sale irrebaroble damago would be done to plaintiff. \By reason of the bal- I ance of the loan, not hiving beon paid, plain- I tiff fiad been provonted from disposing of the property, ana had been put to expense and incojivenionce.. Furthor, it,was alleged that the rates of interest,- fines,' .and bonuses charged by defendant, wero excessive, and thud the transaction .was harsK"and unconscionable. Plaintiff dajmed tlujt. defendant i bo restrained from selling the property and colleoting tbo rents; that an acoourtt be taken or all moneys adrancei by dcrMlunt to, plaintiff; , that defendant-bo ordered topay to plaintiff tho balanta. of-ihe moncyi agreed to bo advanced; that judgment bogiven for plaintiff, for £100 by way "of damages and costs; and that tho transaction bo reopened under tho Monoy-Londors Act, Defendant roplied that, in May, plaintiff notified him that she had taken over the proper* ty, whioh was subject to n first mortgage to oiio Bobart Stains, to secure £500, an* to' a soopnd .mortgage to dofendant, on which was owing £45 18a. Dofendant alloged that he agreed to advance to plaintiff £70 to pay to Mr. Stains, being arrears owing undor his mortgftgd, and plaintiff was to pay to defendant a premium of £20 25., such premium, and tho sums of £70 and -£45 18s., to be secured by second mortgage' of the property. Defendant also denied that the . memo, of mortgago had beon. duly completed and registered as 'alleged 'by plain-' tig,. Ho ; proceeded to say that .htf had. advanced tho wholo. of the loan, via., '£4518s., owing to him upon mortgage"; amount of/ premium,' and £70 actually-ad-vanced.. Plaintiff had it was alleged, failed , to pay £80 being,interest j n arroars to Stains,'and £23 10s, 6*. due to-defondantr By reason of-'those defaults, dofendant became lawfully entitled to exorcise his power of salo. It was denied by dofendant that, if an account wero taken; it wonld bo found that there was a substantial balance due to plaintiff. Ho admitted that ho was a registered monoy-lender, but denied that the ™» « interest, fines,'or bonuses (if "any), charged by him, were excessive; and that , , the transaction was harsh. The Bare steel Unsheathed. - Upon evidence in support of tho claim having beon tendered by Mf. Q. Somervillo (solicitor), husband of plaintiff, Mr. Skerrett croßsMJxamined witness at length «>£%&(£ ■ p ■ busines? aft . BT ' Is jt not ft fact that you then commenced dealings' with his younE',son?-~"It was pnor to that." . , , You acted as his solicitor fW'Wo had some -.dealings, • - , ~ft»o you not robbed him of £578?— cn^L y t° U £3W> W "' tha \ amo^?^' h ? j l yoU T>? ot to him that .you .'-r.jf s ?* * Wanganuit mortgage for £400?-- ' i;» 01,r ';te"\ h m !!? ey m y° u 'borrow from hlm u , on . * ha ± \ mortgage?—"£3oo or £3oO." ■» ti + )S * b 8 ol tho land comprised in that mortgage P~"I don't know."' >«nV »v % iMt tiat tbo lan(J is not worth - "lWrf y(m not boiro 1 w £2 P°° frODJ » Mr. Bright on a sum-mortgage?—" Yes " ' S\ tho eeounty didn't jhZ^tiot W mado.?. reP? -': Wef, ' l had That is not the point. Is it not » fact thfng?-"Wo ° DOt *° "" Worth a fUr " 'Do,you know that'he , , can't get sixpense Sβ^ - 1 know that th 9 mon w°* ,'Lodk hero, Mr. v Soniorville, is it not a fact « 1 f< S. 3 ? WB, y ? u have ])cctt livin E u P°i fraud, that you have been humbugging , people, and getting rnoooy from them on all ■ sorts ftnd kinds of representations?—"l Dave boert working for my living." , ' Mr. Findlay:VTliero is nothing' to prove l those allegations, I - Mr.-Bkerrett; The matter will be invest!-1 gatod in duo time, Who propared this security?—"l did. un. der instructions from dofendant." • .parried the transactions through ?— „ I did.' Why did you register tho document if you had pot received tho full amount?—"l onlv wanted £70 at tho time." . .Why didn't you write a singlo letter aak- , mg defendant, to advance tho rest of tho Zoanf—"Ho'nevon made ■&' demand for any of the instalments." .. ' Will you v swear that defendant didn't read : to ypu what he wroto down with reference to tho matter?—" No." " Mr. Skerrett: s'hia is the -memo: "Ito Bums's property. I , havo tq gel) "up this property under my mortgngo covenant, thon pay Kirkcaldio about £70. and givo a transfer to Mrs. SpmorviHo subjeot to firet mortgage of £500, and a fccond mortgage of £lae, repayable by sixty monthly instalments of £4 80, Sd, to £3 Bs. 6d., 'first payment in'Sepkimbor, 1908, subject to Kirkcaldio doing it." t ' Was it not at your suggestion that the amount of instalments was reduced?—" Yes, defendant ma.do a miscalculation.' ' 'Is not tho document I liavo road quite \ contrary to jour evidence P—"No." Mj-, Skerrott: Well, I submit it ghowe por» fectly plainly that you came to an arrangemcnVwith him by which ho was to pny £70, and yon wero to givo a mortgage of £136, of which £45 was to go on a second mortgage, and the balance (£2O) was to bo re-, t tained by defendant by way of bonus. , '' Jn reply to his Honour, Somorville said ' that Mrs, Horde had paid'£loo by way of deposit in connection with tho purclus.o of the property, and that"tho- balanco was £QZo. s v •, ' His Honour: What became* of the £100? Witncsn; Jt went in expenses. His Honour: But that,was. trust money. More Drawn Swords. - Dofondant then gavo evidence, aftor whioh ho was cross-examined 'by Mr, Findlny. - At tho timo you were Quito satisfied with tho security?—" Yes." You know that the proporty was sold (or £7£oP—"l found that out when I wont to collect tlio rents," Was tbo arrangement not advantageous to you?—" No." Was not your position improved by bvof £100?—" It was not.", At tho timo of tho arrangement you would have had to buy the jiroporty to protect youvsplf if it did not bring a certain amount? — I would not have been any the worse off." Replying to further questions, defondant explained that, as the instalments wero not being paid, ho took <stops to collect tho rents- Whw ho went to tho house, he met \ a Mr. Triohett, who said that ho ropiesontcd i a Mrs. Horno, who bad boiight from Mrs. Bomerville, and be declined, tp allow tho rojits to bo'coUected, Btrt, you took.no etepa in tho way ,of *nfcToing the payment or the instalments for Bweral inontbaf-^ , 'Th»t is so, I don't press joople." • _■--- -. On. <«& -Deeaasa, aj«t-iold SomerYJßa--fla*J

tho bank was calling upon you?—" That was a polite way oftelling-him that I wanted tho inoney.". .•, •.-.-.■ i ' Mr.Findlay: I suggest that it was a polite lie, : .... ' carrying on business as a 'jnoivey-landcT for some time P—"l lend money on mortgage." Suggestion of 150 Per Cent. False. You lend money at 10 per cent, and over? —"Only as muoli as 10 per cent,, on a oortain class of security." ' ■ You olaim a pretty handsome bonus eometimes'f—"Never in my life." ' What about tho Venables case? Didn't the Magistrate say, that your bargaining for a £100 bonus was unconscionabl©?r-"r don't think- 50."., - ■■. ■ \.. ■ ■ :■' Didn't he refuse you judgment for the £100 and order you to refund it? —"Yoe." . Jlhon again, you had trouble with a Mr. Spittalsp—"No, what for?" Did you not endeavour, to claim from his trustees a , greater percentage than 10 per cent?— "Tliey gave mo tho amount I claimed without demur." •-.-■..■.■.■■.• ; Wero you, ever in' possession ■of SpittalsV property as mortgagee?—" No." - ■■ '■ '' ■■■ I Did you not have a transfer with reference to a part of it?—" Only a sniall portion." . i Well,'you.are satisfied wiMi your security on , tho property now'in question ?—"lwas at first, but lam not now, . . •' '■.-.ls the property worth tie amounts due on it?— "It; is worth £750." ' , ;■ It strikes me.that, your charges represent 'rates.'.worth 150: per cent.—"That is false." --'■•■ : «Hd Simply Haunted my Office.", In reply. to Mr. Skerrett, defendant stated that Soraervillo's assertion! that he had offered to withdraw the property from sale if bo wore given £50 was fako. Tho fact was, w alleged, that Somoryille simply haunted his.office, making all kinds of offers and inducoments to. get.him to withdraw .'the pro'poity from auction. What ho had told him was that haV.wanted his money and nothing mbre-to do with-him. V :,.'■• asked his Honour to accept lefendanVs. evidepco in preference to that' ,tendered'for plaintiff.. It. was, he said, im'..'possible.to bredit : the : statement that the thortgage wfts given without tfne full' amount haying beenvpaid, Counßel did not contend thftt\Qi6 claim f»r the premium could be sup- , Sit.:j'indlayj.in tho course of he reply, expressed ine opinion that there was no. doubt.that.defenflant:took adyantago of plain» tiff's..lond;.fier husband's necessities.' ; Therewas on fact that Somoryillo was at-the time ~- .; ;. ; :/: : . i What his Henour Thought of It. His Honour said that very Ettlo could be paid'in favour of plaintiff, and not muoh could, bo said, in favour of defendant; What POihadto determine waswhat was; substantially- due to defendant under the mortgage. ■Ho thought-that tho demand'for the amount ■'Of formed one of thojtems, ;.ffas s unconsQionable—that it was anextraorItrwould be reduced to £35 i^L™ 1 * Wo .? W: *avo defendant an ample Further, the.amount .Clainteidias atbßnus could not be allowed. The plaintiff to..dsfendant was £128 Bs.,- with -interest , calculated J at 8 per •«, en l';''and-he. : would' direct that plaintiff pay;jhat.>mounOd ."defendant within a month In- that way ho would, he thought, be doinp! justico-botween; the parties. If was also his duty to_protect ■ the : purchaser; of -. the pro.; .perty. ! ;."Dofcnd4nt would be required to give an account of rents oollected. The injunction Tesftjuiiincr, defendant from selling the property .would, remain for a month;/ All ques.P o , o^, of would be reserved.'- ' fri M^5 0 ?- me 5 d Somen ' , ' ll e and his friebds/Ladded his Honour, "to clear this it is ; apparont to me that the receip'fjby Somerville of £70, and his user of it, was the receipt and user of moneys which;oughV to have been kept: apart. It him for. the bonefit-of Mrs SomcrviHe .also of Jlrs. Home." • ™ ;

fi ; ';;.L^!™^l:<>Nu??ryßEWA''.' ESTATE.i: ' ■r OR CO-OWNErK - ■"' ,'An action, between Joha Black, who was represented by Mr. Skerrott, K.O. (with him' #' ; Os%^, ; an< William.-Georgetti '(for-: .whom-Mr; 'Dalziell with him Mr, Stout ap■fwar^.'came'.pn, f6r bearing boforo Mr. Justice Cooper yesterday, . - 1 - .:.:--. ?»e:-"as follow.i-In July; 1903. plaintiff, obtained from' one Thomas Holdon. the assignment of an agreement with .The-JNatITC owners for tho sale of the tim*«■..or:.wjwß.blocks of land', amounting in all to-20,000 acres, "and known as the Taugwa BW. Plaintiff had been introduced to ttoKien.by defendant,,and it had been.agreed between plaintiff. and defendant : that they should purchase the rigWs on joint account, .fwelvft. months, later, plaintiff gave to derendant a document headed "interim Rereoment,!' and worded as follows:—"W; Geor." i.gettiy-Esq-T-Thig-is an acknowledgmont that" of the.Tight, title, and interest nowheld by' me;in Taurnwa Block,, totalling about 20.860' acres, a portion representing ft per cont.vof the_wholo isheld by me in trust on naif and .account, and when' so' required to do;by.:yovi;.l,will transfpr to you, such, in■,teres.t .subject, of ooursepto.; any 'liabilities thatmw accrue thereon,' . The title of tho grant of- timber was not comploto, and. plain.' tiff brought the matter before "the- Maori Land Board for: confirmation before roferrinH to;the:Ministcr.for.a transfer.. Plaintiff aF-' Ipged that tho Minister, would not grant hia l ? r i. ni J til ' a lar S° smn of money—about ,«3500-.hadhe4n.p.aid in further royalties to ■the Natives; .: Plaintiff called upon defendant ■to ■ contribute; a proportionate ehare of that sum, and' also a proportionate share of the Bumof ,tlso which he had expended in endeavouring to complete the title. ■ The defendant refused t<? contribute anything, asserting.thaf.he was .not a partner with tho plaintiff, but only a co-owner.' This action Wae now brought,.asking, tho Court to depreo either, that defendant .was 'a partner'! with,plaintiff,; i or,that by the neglect of d e - ; tenuant'to ...contribute- to the'exDcnses iliourrecl ;in-porfecting' the title .to "tho rights' defendant baa, elected to' abandon all his rightsJhe'rbtp.;>■;■(' ;,:;;. -""■:.:.■'.■.:.' '■'■'

:;-,-Aiter,-a'.partial hearing of \h a case, the" parties .uponvtlto \ suggestion,of tho Cqurt, decided; to. hold a: eonferenoe, and the case was adjourned.';sine die..; ■ . ;:. ■ . ;■■■