QUESTION OF POSSESSION

Evening Post, Volume CI, Issue 150, 25 June 1921, Page 16

QUESTION OF POSSESSION

Mr. E. Page, S.M." gave his reseryed judgment in the Magistrate* Court yeeterday in the action brought by David A. Roberts, boatman (Mr. J. F. B. Stevenson), against Allan Smith, grocer (Mr, T. C. A. Hislop). The facts were that on 19th . January, 1921, Roberta agreed to buy from Smith a dwellinghouse for £850, terms, £25 down and balance, by instalment of 30* per week, and interest at 6£ per cent. The agreement, dated Ist February, provided that "the purchaser shall.be entitled to' possession of the said premises on 24th January, 1921." It was within the knowledge of both parties that a tenant was in possession of the property. Plaintiff saw the defendant several times with reference to / possession, arid got his solicitors to write to the defendant, who demanded vacant possession. 'The defendant's solicitor replied denying that there was any agreement I,ha't Roberts should be, put in actual physical occupation of the property.-Oh 4th April, Smith, without further reference to the plaintiff sold the property to the tenant then in occupation,■< and neither the plaintiff nor his solicitor had been advised of the transaction. It was contended on behalf of the defendant that the word "possession" in the agreement for •■ sale did' not mean "vacant possession." ■ '..« !• ; . The. Magistrate said that, looking at the whole of the circumstances, in 'his opinion thei word "possesmon" meant vacant possession, forlthe wording of the document, viewed in the light tot the parties (Roberts was going to be married and required the house to live in), indicated that the bargain was to give vacant possession. Apart, however, from this, the plaintiff was entitled to judgment on the ground that while the agreement was still subsisting, the defendant sold the property to another purchaser. ! , Judgment was given for plaintiff for the return of the £25 deposit, for damages and expanses £23 11s, and for costs £6 19s 6d., ■