COURT OF APPEAL.

Evening Post, Volume LXXVIII, Issue 107, 2 November 1909, Page 10

COURT OF APPEAL.

RESERVED JUDGMENTS. Yesterday the Court or Appeal delivered judgment in the case ot Te Peehi Te Opoteni v. Phillip George Smith. The argument was heard before their Honours Acting-Chief Justice Williams and Justices Denniston, Edwards, Coopei', and Chapman. Mr. G. Hutchison appeared for plaintiff, and Mr. 11. F. Luckie for defendant. It was submitted on behalf of plaintiff that (with other tenants in common), he leased to defendant an area of 727 acres 1 roorl 22 perches, in the Waimarino district to defendant for a term of 42 years, at an annual rental of £72 14s 9d for the first ten years. There was also included in the lease a provision for an annual payment of £1 per acre in respect of timber royalties. The half-year's rent was due on 19th March, and was not paid, nor had it been paid since. Plaintiff stated he had an aggregate of 2£ shares in the land ; the half he was appointed successor to by the Native Land Court. On 19th March his two shares entitled him to a total sum of £88 18s, and the half to a total sum of £44 9s. No rent had been paid up till the present. In consequence, plaintiff claimed rents and royalties — £153 7s, as due" on 19th March ; possession of land ; royalties thence till the date of re-entry — £97 Is; and mesno profits from re-entry until possession, on the basis of. an annuai value of £266 14s Id. ' The court was asked to decide as to (1)' whether the sum of £80 16s 4d claimed as royalties was recoverable as rent, or in the nature of rent, or was it purchase money for timber, and if so, not' recoverable as ciajmed ; ' (2) was any notice in terms of and in accordance with section 94 of the Property Law Act, 1908, necessary as a condition precedent to upon the forfeiture alleged in the statement of claim? (3) Has the plaintiff, as one of the several^ lessors, the- v right to sue for rent or breach of covenant without joining all the lessors of the said land as alleged in the statement of defence ? _ / The court answered tne questions as follow :—(]')"■ The sum of £80 16s ,4d is rent. (2) Answer to tins is contairted in the foregoing (3) The plaintiff has the right to sue alone. Costs will be fixed by the court on Wednesday at 11 o'clock. "KEMP'S PURCHASE." NATIVE RESERVE AT KAIAPOI. \ Judgment was 1 also delivered by the court in a, case affecting certain restrictions as. to the disposal of native reserves at Kaiapoi. The plaintiffs were the Attorney-General (at the relation of Mere .Te Aika and Tini Arapata, of Kaiapoi) and Mere Te Aika and Tini Arapata, also on their own behalf. The defendants were Ruita Mono Te Aika (Kaiapoi), Rahera Whitau (Temuka), Amirea Kemara (Temuka), Tupae Reihana and Eruera Te Aika (Kaiapoi). Mr. T. W. Stringer, K.C. (with him Mr. Levi) appeared for the plaintiff natives, Mr. D. M. Findlay for the Attorney-General, and Mr. G. Harper ior the defendants. The area concerned was one of 14 acres, but the question involved land to the extent of over twenty million acres. This was known as " Kemp's purchase," made in 1848 to the New Zealand Land Company. The deed of surrender included a provision to the effect that " our places of residence and cultivations aie to be reserved for. us, and our children after us, and it shall bo for the Government to set apart for us when the land is surveyed, but the greater part A ihe land is unreservedly given up to the Europeans for ever. Pursuant to Hie deed, reserves were made to the natives by the company, and one of these leserves was the subject of the present litigation. The fundamental condition of the grant was that the estates and :ntcrests should be inalienably entailed so as to make them secure to the native race. Provisions in the grant to Aperatama Te Aika in 1865, forbade any disposition of the land included in the' grant by sale, mortgage, lease, or otherwise, .vit'ioufc the consent of the Governor or some person duly appointed by him.. -On the death of the grantee the Governor might, without prejudice to any sale, mortgage, lease, or o£her disposition made with such consent^ direct the succession and dispose of the land in accordance with the provisions of the Intestate Natives Succession Act, 1861. In his last will Te Aika devised this section of land to the plaintiffs. Defendants contended that this devise was inoperative by reason of the restriction in the Crown grant, and they had applied to the Native Land Court to be appointed successors to Te Aika accoiding to native custom. Plaintiffs claimed that these provisos were inserted without lawful authority, and were invalid. They asked the court to declare them null and void, and order them, to be struck out. Deiendauts held to the contrary. The court decided in favour of dofeadants. It held that the Legislature by the Acts of 1886 and 1882 recognised the existence of the conditions or restrictions contained in the grants of the K.ii.iooi reserve, assumed they were valid, and provided machinery for their modification. The restrictions did not permit a devise of the land. The words "or otherwise " prevented both this devise and the alienation by will. Question of costs was deferred till Wednesday, to decide the position — as to costs — of the Attorney-General, whom the court held to be a co-plaintiff with the relator.