A FRIENDLY ACTION

Dominion, Volume 22, Issue 133, 1 March 1929, Page 15

A FRIENDLY ACTION

HAND TRANSFER CLAIM JUDGMENT FOR PLAINTIFF A case containing some distinctive features was heard in the Supreme Court yesterday by Mr. Justice Herdman when David Bell, farmer, of Feilding, proceeded against the Guardian Trust and Executors Company of New Zealand Ltd. (Inc.), applying for an order of transfer of estate.

Sir John Findlay, K.C., with him Mr. L. A. Elliott, appeared for plaintiff, and Mr. G. McArthur and Mr. L. £l. Herd for defendant company. In outlining the case for the plaintiff Sir John Findlay said the action was really a family one, and a curious feature of the case was that all the members of the family agreed to a/ decree being made in the terms of the prayer in the statement of claim. The trustees in the estate, who had made a most industrious examination into the facts of the case, had come to the conclusion that the merits were entirely with the plaintiff. As to the facts of the case, plaintiff was the son of Alexander Bell, deceased, late of Remuera. Deceased was 84 years of age when he died, leaving the large fortune of £350,000. Part of his estate was a farm near Feilding. For a considerable number of years before May 10, 1909, plaintiff had worked for his father, managing the latter's estates, farms and business. It was largely due to the skilful management of the plaintiff that the estates were in such a. prosperous condition. Deceased was in the habit of taking frequent trips to England, and very full power of attorney was left with plaintiff. Plaintiff did not haggle with his father over remuneration for the work he was doing, although it would be shown that he had received not more than £l5O per annum, when a farm manager’s remuneration for similar work was at least £4OO. In May, 1909, plaintiff came to the conclusion that it was fair to his wife and family that his relationship to his. father should be placed on a proper basis. On the suggestion of plaintiff, a memorandum of agreement was drawn up giving plaintiff a 21 years’ lease of the property of 1272 acres, at a yearly rental of £l5OO, but subject to determination on the death of the lessor. Deceased declined the suggestion of his son to include a purchasing clause. However, a verbal agreement was made that if plaintiff sold the homestead portion of the land, deceased would give him the title to the remaining 632 acres. In about 1910 plaintiff effected a sale, and surrendered to his father all his rights under the memorandum of agreement. It was agreed that some of the stock, should become the property of the plaintiff, and that until the transfer was effected plaintiff should pay a reduced rental of £750. Plaintiff paid this rental, but under protest that his father was not carrying out his obligation. Before and since the sale of half the property, plaintiff had spent upwards of £5OOO on improvements. Deceased had frequently undertaken to give plaintiff the title to the land, but had not done so, and for filial reasons plaintiff had been restrained from proceeding 'with an action for specific performance.

Counsel for defendant said the action was quite a friendly one. It was denied that a verbal agreement had been entered into, and the Statute of Frauds was pleaded in defence. It was denied that deceased should pay a reduced rental upon the one portion of land being sold, and denied that plaintiff had spent large sums on permanent improvements. As a further defence the Statute of Limitations was pleaded. Counsel said the trustees and the family were only too anxious that plaintiff should be given the property, but it was just a question of whether he was legally entitled to it. After hearing evidence, His Honour said he was satisfied that the trustees should waive the defence of the Statute of Limitations. That defence was accord--ingly withdrawn. His Honour gave judgment for plaintiff, and directed that the parties should pay their own costs.