SUPREME COURT.

Evening Star, Issue 4337, 22 January 1877, Page 2

SUPREME COURT.

CIVIL SESSIONS. Monday, January 22. (Before His Honor Mr Justice Williams and a Special Jury.) THOMAS ROBERTSON V. DAVID M. ROSS AND OTHERS, Mr Macassey, with him Mr Stewart, appeared for plaintiffs; Mr Stout, with him Mr Garrick, for defendants; and Mr Howorth watched the case on behalf of Mr Miller.

Mr Macassey opened the ease for the plaintiff, and said it was one which presented many features of painful interest. The plaintiff, who had been a settler many years, and was a man close upon eighty years old, brought this action against his son-in-law to set aside a deed of conveyance dated so far back as 1869, and which dealt with property of considerable value, on the ground that its execution was obtained by fraud. '1 he case was a most serious one, and might pustibly involve charges of forgery and perjury, but, apart from its grave character, it bad a most romantic aspect. The action was, as be before stated, brought to set aside a conveyance alleged to be obtained by fraud. Now, there were no cases less likely tu receive attention from juries than those

involving charges of misconduct—and per- ! haps it was well for the credit of human | MHtiu•; that t was j!i -l-ut lu*. submitted that | this case deserved special care and attention i at the hands of the jury. The property at stake was considerable, and was probably not under the value of LB,OOO. Mrs Ross, the co-defonjjant, and the daughter of the plaintiff, he was willing to believe had been the unhappy dupe of the craft of the defendant, and was probably not aware of the exttnt of the transaction in which she had played a part. The plaintiff was, as be said before, an old man, and had been resident in the Anderson’s Bay district for a number of years. He had been married three times, and had several children, who were themselves married and tolerably well-to-do ; birfc prior to the execution of this deed he had not conveyed any of his property, which was extensive, to either of his children except by will. According to the present deed, the plaintiff would appear to have conveyed all of his property, real and personal, to defendants, and to have left himself without a single rood oflaud, or without, in fact, anything excepting a life interest in the property said to be conveyed. Mr Eoss, the defendant, came to Otago from Scotland, and shoitly after his arrival here made proposals for the hand of Miss Jane Robertson,’ plaintiff’s youngest daughter. His suit was prosperous, and the young couple were married on the 7th July, 1868, by the Rev. Dr and for seven months afterwards resided in a house of Mrs Robertson’s. Some time after this Mr Robertson, who had previously made a will, expressed his intention of making another one, altering the provisions of the former will. Ross, who was a man of superior understanding to the old man, and had been well brought up, by defrees worked himself into Robertson’s confi- ' ence, and after a while the plaintiff put implicit confidence and trust in him. He told Ross of his intention to alter his will, and said that he was going to see Mr Downie Stewart, who was his lawyer, about it. He also said it was his purpose to devise his property at Anderson’s Bay to Mrs Ross, his youngest daughter, and that at Tomahawk to Mrs Miller, another of his children; the balance of the property to be disposed of in various ways. Upon Robertson saying that he would get a lawyer to do the conveying for him, Ross offered his services to save expense, and the end of the matter at that time was that plaintiff brought the deeds of the property to Ross, and left the business in his hands. On the 13fch May, 1869 —the day of the execution of the deed, it was sought to impeach—Ross met Robertson in Dunedin and said that everything was arranged, and all that remained was for them to go to some hotel and finish the business. The two forthwith adjourned to an hotel, and there met one Harold, who he (the learned counsel) believed was a partner in the firm of Harold, Bain, and Co., grocers—and Rosa told him that Robertson was going to make his will, and asked him to come and attest the signature. The trio went into the Alhambra Hotel, and Mr Miller was called in to also attest the signing of the paper. The docOment was not read over to Robertson, and Miller at once demurred to signing a document the contents of Which he was ignorant. However, Robertson said, “It is only my will,” and Miller then affixed his attesting signature. The learned counsel here drew the attention of the jury to the very wide distinction between a will and a deed. A will might be made one day and revoked the next, but a deed held good for ever. The will, as it was believed by Robertson to be, turned out to be a deed conveying to Eoss and his wife land in the Peninsula and Tomahawk districts—and, in short, all the old man’s property, reserving for him nothing but a Iff' interest.' The question resolved itse* into this Was this document signed under the impression that it was a will, or was it known by Robertson to be a deed conveying from him all his property ? A singular circumstance then transpired. Harold, one of the attestants, was after wards asked to say that the deed had been executed at Anderson’s Bay. He objected; but subsequently swore upon affidavit that such was the case, when he knew all the while that the business had been transacted at the Alhambra Hotel, Dunedin. It was some time after this that Robertson, wishing to do some fencing on His land, discovered that an encumbrance existed affecting his title. Ross, the son-in-law, evidently endeavored to keep up a system of deception with Robertson. He asked the old man for an acre of land on the Peninsula for his wife to live on, as she was delicate, and a deed to that effectwasexecutedbutneverregistered. Now, if Roes was the actual owner, by virtue of the deed alleged to have been fraudulently obtained in hia favor, he must have been the proprietor of this acre along with the rest, and this circumstance pointed to the completeness of the scheme of deception Ross was practising on Robertson. When plaintiff found out, as above stated, -that an encumbrance to his tide existed he was naturally , excited, and asked Ross how he had dared to meddle with his (Robertson’s) property. He said he would make another will; but would give Ross a chance of setting things right, and expressed a desire that both of them should see the document. With this idea they repaired to the Glasgow Pie House, and Mrs Robertson, hearing of the conference, placed herself in a convenient position and overheard all the conversation. He (Mr Maoassey) would not justify eavesdropping generally ; but if ever such a course was justifiable surely it was in the present instance. Mrs Robertson heard Ross ask Robertson to sign a document, which he refused to do; and at last she could bear no more, but rushed into the room, and implored a Mr Baghler, who was one of the party, to abstain from taking any part in the proceedings. A scene ansued, but eventually the two separated without doing any business. No effort was spared by Robertson to set himself right with his son-in-law, but all was in vain. He (Mr Macassey) would explain a law question to the jury. As soon as fraud is established, no document can stand. He could not put Ross into the witness-box and ask him with any hope of getting a satisfactory answer why he had left the employ, ment of Park, and Curie and beat a hasty retreat out of Ctago, for the law did not compel a man to criminate himself. The fact was, however, that Robertson knew not where his soxuin law had run away to until he received a letter from him dated from Auckland, and which pointed to some offence committed, and expressed a hope that the writer’s name would be blotted out from the memories of the people of Otago. Rosa was afterwards heard of at Timaru, where he had gone into business One fact might throw light on the case, and explain how it was that Ross was able to draw up the deeds so correctly. It was this—that before his arrival here he had been a notary public in Scotland, and had been trained in a lawyer’s office. The question thus far was—Was the document Robertson signed a bona fide deed, or a fraudnleutdevice to acquire posssssio a of Robertson a land ? There was another phase of tlv case. All the real and personal rooperty of Robertson was said to have V een willed in accordance with the terns of an ante-nuptial contract, to Ross on Ins mai tying plaintiff’s youngest daughter Jane ; but this statement carried its own contradiction with fit. Was it a likely thing that the old man would will away all his land to the youngest child

and overlook all his other children T Besides. plaintiff would swear that not a word was BU n b K ct * On the Bth March, iS<O, another deed was said-to have been iQ«o d by Tx ß °h rtßon ’ flying the deed of 1869. Harold could >ay that he witnessed Robertson’s signature to a paper covered, excepting the place for aiming, with a blotting-pad, and he (Mr Macaseey) believed . that the old man was under 1 the impression when he signed the ratter paper that he was merely giving the acre* oflsbd mentioned above to Ross. The mere fact, ot ratificataibp suggested the want ' of something, and a wish to obstruct investigation of -the-matter by Robertson. In May, 1870, another deed was executed professing to convey some property at Tomahawk to Mrs Miller. Mr Macassey concluded by stating his intention to rely more omthe weight-of-the'-facts-he' - should adduce than his own oratory, and quoted at length from the various documents alluded to in his speech. . Daring the afternoon the. defendant.waa under examination as to the circumstances under which the several deeds of conveyance were executed, and as to his movements and connection with the plaintiff subsequent to him (t! • defendant) leaving the employ of Messrs Park and Carle, and going to Auckland. During his examination it was stated by witness that before the execution of the deed of 1869, which conveyed all the proS de , f r en< k Q t' and wife, it was understood that Mrs Miller was to get the Tomahawk block, and it was conveyed to him because Mrs Miller and her husband were n 8 00( 1 terms, and Robertson wished to get them sepatated. , When the subsequent deed of gift to Mrs Miller was made the differences had been made up. ' That frequent conversations had taken place between the defendant and several members of Mr Robertson’s family as to the tatimate 5 disposal of the property. That when he left Messrs Park and Carle he conveyed to them his property in compensation for a deficiency in his cash, amounting, as was stated by the accounts, to about L2OO. The prohe conveyed he estimated to be worth • j v , witness stated that the deeds signed had been drafted by Mr' Stamper and. engrossed by himself, as Mr Robertson, the plaintiff, said he had a horror of solicitors and would not go to one to have the deeds he wanted prepared. Witness denied having stated to Thomas Robertson, son of the plamtiff, that he had “done” the’old man now, but would make it all right with the family ' after the old man was dead and give him (the son) the Tomahawk property. He stated that he might have said to Mr Inglis that he would make it all nght with the family, bat that was only to get rid of him, as he (Inglis) came to him in such a mysterious manner, and endeavored to pump him. Inglis bad an eye to the ten-acre block on the top of the hill, and wanted to get him (the witness l to promise him that. It was ffiso stated that the reason, given by Robertson . for the conveyance of the Tomahawk property to Mrs Miller was that he (Robertson)-had made sn oath to bin wife filler) on her death-bed that Mrs Miller should, have, that property, hut it was first conveyed to witness for the reason already stated, the* ultimate conveyance of the property'to Mrs Miller being left to the honor ©f the witness. [Left sitting.]