UNRELEASED MORTGAGE.

Manawatu Standard, Volume XLI, Issue 9740, 4 March 1914, Page 6

UNRELEASED MORTGAGE.

CLAIM FOR AMOUNT. ARGUMENT DEFERRED TO WELLINGTON. The hearing of the case. Scarliorough Wright, of Kimbolton, settler v. John London, of Tauranga, settler, a claim for 1'137-3. was continued at the Supremo Court yesterday before Mr Justice Edwards. The case arose out of the sale of certain land by defendant to plaiutiff under a purchasing clause in the lease of the land, which was subject to a mortgage to the Trust and Agency Company, of Ltd. Plaintiff alleged that defendant had by himself or his authorised agents failed to carry out the covenant in the lease to transfer the land to plaintiff free from encumbrances and had committed a breach of warranty inasmuch as the land was not free and clear of all eneumbranccs but was subject to a mortgage of £1370. Plaintiff asked for judgment for this amount, being the montage moneys due to the Trust am! Agency Company, Ltd.. or in the alternative £1375 damages. Mr C. P. Skerrett, K.C.. with him Mr Ongley, acted for plaintiff and Mr M. Myers appeared for defendant. Prior to the opening of the case MiMyers applied lor leave to file a coun-ter-claim. This very simply repeated the allegations or the defence and stated the purchase money had not been paid by the plaintiff to defendant. The defendant claimed the sum of £1390 12s fid or s'K-ii sum as should be found to be due with interest to date of payment, and delivery by the plaintiff to the defendant oi the transfer referred to in the stateme nt or claim ujxm the defender..: repaying to the plaintiff the portion or the purchase money paid by phii-uiff with interest thereon. Mr Skerrett said it was quite use lets for him to object because the matter was necessarily involved. He then proceeded to outline the casf* and in his opening remarks stated the case was one in which two or perhaps three innocent people suffered by the misconduct of a solicitor. He did not intend to trouble the court with the law on the case until the- whole facts had been made known. The principle he relied on \vas well-known and laid down in Gorton v. James and the London Leasehold and Freehold Property v. Suttield. The principle was that where a vendor by "himseif or his agent so conducted himself towards another that by his negligence he cans'.nl ti person loss he was stopped from denying liability. Council then nut i'i 11 •»> various document.:and the corn- • ience.

hvidenee lvg.-iiding the transaction between plaintiH and ilitendant and the

raising ot the loans for plaintiff was given by Oliver No«d (iilhs])ie, who acted for plaintiff then. During the examination Mr Skerrett remarked on the absence of some hook.kept by witness which should be in court. For sonre reason or otlier thev were in the possession of a firm of solicitors at h'eihling. why. ho hardly knew, he said.

Mr Myers said he understood the books were at Feildmg by arrangement ot the Official Assignee for general convenience am! were open tor inspection. They were to send down whatever books were required, and whatever was asked for. he understood, had been sent.

His Honor: Tit:' Official Assignee should have the books ;jvai!abl<*. A motor-car could go to I'eiMing and return with them m under an hour. The books were sent tor from Feeding, and meanwhile the examination was proceeded with, the books arriving later.

A large file ot correspondence was put in. Mr Myers raising the point that tlii,-, was not ovidenee against defendant.

Hi.- Honor stated it was ])iit in subject to any objection which might be raised later as to its admissibility. Plaintiff also gave evidence and this closed his case. Mr Myers said that he did not' pro]Xtee at this stage to open the ease for the defence. As iar as the questions or tact were concerned there could not |>o much controversy and questions ot 'aw could be referred to at a later stage. The evidence of A. Clark, accountant, and B. E. Murphy. of Mclntvre and Murphy. who acted for defendant in the matter, was then taken.

Mr Skerrett said. prior» to cross-ex-amining the last witness, that he would like Ins Honor to know that he accepted witness' statement as to the mat* r of t!ie transfer and settlement of the mortgage, etc.. between the transferor and transferee.

1 his closed the case tor defendant and the hearing was adjourned to Wellington. where legal argument will take place.