CLAIM FOR RESCISSION OF AGREEMENT

Manawatu Standard, Volume XLI, Issue 9740, 5 March 1914, Page 7

CLAIM FOR RESCISSION OF AGREEMENT

A claim for the rescission 0 f an agreement entered into for the sale of land at Awahuri came before Mr Justice Edwards at the Supremo Court yesterday. Plaintiffs were Augustine Austin Harris, of Awahuri, and Maude Harris, his wife, and defendant*, Charles Edward Levien, Joan Levien, his wife, and Caroline Rowles, of Fcilding. Mr P. E. Baldwin, with him Mr Oram, appeared for plaintiffs, and Mr B. E. Murphy, of Fcilding, for defendants. Tho-grounds of plaintiffs' claim, as set. out in their statement, were: (1) That in or about October, 1912," plaintiffs entered into negotiations with the defendant, Charles Edward Levien, and his wife, for the purchase of certain property at Awahuri, then owned by defendants or one of them; (2) the negotiations were conducted on behalf of defendants by C. E. Levion ; (3) the plaintiff, A. A. Harris, accompanied the latter to inspect the property, and one J. T. Barry accompanied them, but did not go over the property; (4) Levien and Harris alone inspected the property; (5) Levien pointed out certain parts of the land, which Harm ha* since learned were sections 10 to 15 (inclusive). 24, 25, and part section 9, town ship of Awahuri, and abo sections 20, 22,, 26, and 23, Awahuri. and represented the sections as being freehold land of the defendants or one of them; (6) the rcpro scntation, as far as regarded sections 20, 22, 26. and 23, was untrue; (7) C. E. Levien also represented to Harris that the defendants, or one cf them, had a right, which he represented was as good as a freehold, to oc cupy certain land adjoining the said sections, which .sections have since been discovered were sections 16. 17, 18. 19, 21, and 28, Awahuri; (8) the said representation was untruo inasmuch as the defendants had not any right whatsoever in respect of the land. and were trespassers thereon ; (9) upon <;uch ii;r.'i> Ktioil, C. E. Lcvjcn represented to Harris that the two defendant* had a legal interest in sections 152 to 155. and 156 to 159 Awahuri; (10) the representation was untrue, inasmuch as the defendants had nc right, to the land and were trespassers thereon ; (11) the representations set out in para graphs 6, 7. and 9 were made by 0. E. Levien to induce the contract mentionec hereafter, and the plaintiffs entered int< tho contract reiving upon the truth of sue! representations; (12) on October 28, 1912 tho parties cnteicd into an agreement t( sell the. propcrtv for £llsO, paving £3OO cash; (13) On November 8. 1912. the defend ant Joan Levien executed a transfer tc plaintiff Maude Harris, of allotments 10 t< 15, 24, 25. and part 9. eontuining two acre 36 perchct, for £7OO, subject to a mortgage of £450: (14) the mortgage was registers ai No. 88075; (15) on November 8. 1912 Plaintiff Maude Harris executed a mortgag' to defendant, Joan Levien, over the lands securing £4OO on November 8. 1817, A. A Harris being a covenanting party; (16) o: NoTomber 18. 1912, defendant, Joan Levien executed a transfer of the mortgage to de fendant, Caroline Rowles; (17) the transfei I \r,«* by way of security only. !n vievr of these allegations, plaintiff asked:(1) That the said agreement of Octobei 23, 1912. be rescinded; (2) That defendant. Joan Levien, be order ed co discharge nil sums of money for th payment whereof the said mortgage 89527 i now held by defendant, Caroline Howies, a security. (3) That defendant, Joan Levien, b ordered to execute and register a discharg of th* said mortgage, 89527. (4) That defendant r<>pav to the plaintif the sum of £3OO and interest, from Octobe 28, 1912. tin plaintiff transferring to defene and, Joan Levicn, the said lands. In the alternative, plaintiffs asked tha defendants be ordered to specifically per form the raid agreement of October 28, 1912 by transferring to the plaintiffs the who] of the sec!i'm« which the defendant, Joa. Levien. agreed to transfer, or in the fu'rtln ■ alternative, and if tlie said agreement couh not be specificially performed, the sum o £4OO damages for breach of the said agret m«nt. Mr Baldwin detailed the circumstance surrounding the plaintiffs' ease. As to tin claim against Mrs Rowles, counsel state. he had sine;' learned the position in rcgar< to this defendant, and there were difficultiu in the way of his claim. Evidence in support of the claim wa giver: by both plaintiff's and by William Me Millari. the previous owner of the land, an< this closed plaintiffs' case. For tho defence, (\ E. and J. Levien, i their statement, admitted the allegation i paragraph 1 ; they denied the allegations i. I paragraph 2. and said the negotiations wer carried on by l>oth defendant.?, and the ear J. T. Barry; they admitted the allegation in paragraph 3, except that Barry also ac

ooinpanied the inspection of the property: they denied the allegations in paragraph 4: in answer to paragraphs 5 and 6, they ad mitted the representation as to sections 10 11, 12. 13, 14. 15, 23. 24, and 25. am part section 9, as being the freehold land o Joan Levien, and said such represcntatioi wa« a true statement of fact, but denied th' representation of sections 20, 22, and 26 a freehold land of the defendants or cithei of them, and said that defendant C. E

Lerien expressly informed A. A. llarri that those sections were the property o natives, and that lie occupied them by thei consent, and" as expressly stated, they dt nied •pccifieally the allegation; in answo to paragraph 7, they admitted that C*. E Lotion represented that Joan Levien ha< a right, as good as freehold to occupy sec tion 21, and, except as stated, denied the a! legation* and said that C E. Levien ex presily informed Harris that sections 16. 17 13 and 19, belonged to natives, and tha section 23 belonged to one M. V. Aagard; in answer to paragraph 8, they denied tlur th»y had no rights in the said sections, anc that they were trespassers, hut were in occu

pation by p' rmission of the owners, am

that they fully explained this to Harris; in answer to paragraphs 9 and 10. the) denied ihey ever represented they had am rights of possession in respect to sections 152 to 155. and 156 to 159. but admitted they in formed Harris they w-re in possession oi sections 153 and adjoining sections without any right, as they were unable to find th< true owner; in answer to paragraph 11 they denied that they made the misrepresen tatione alleged' in paragraphs 6, 7 and S and denied that Harris was induced by mis representation to enter into the contract; they admit the allegations of paragraph 12 except that the number.; of the sections art incorrectly set out. and that it was under-

stood the numbers were merely provisional and liable to correction if wrong on settlement ; they admitted to allegation* of paragraphs 13. 14, 15, and 16, and said that al the tune of completion Prior and Gillespie, who acted aR solicitors to both parties, explained fully the legal position of the' fteetions to plaintiff; they denied the allegations in paragraph 17 and said the transfei of the said mortgage was absolute and in part payment, of a deposit under a purchase and not by way of security; they said that in the preparation of the transfer section 23 was by inadvertence on the part of toe solicitors who prepared' the transfer omitted from the same, but that the said section passed into possession of plaintiff. Maude Harris, on completion of the sale and that since the mistake had been discovered, John Levien had signed a valid transfer of the said section nnd was willing to deliver the same- to her.

Defendant. Caroline Rowlea, by her defence, stated that she has no knowledge, notice or information, whatever of the matters referred to in paragraph 12, and therefore denied specifically each asd every allegation therein contained ; she admitted the allegation in paragraphs 13, 14. 15, and 16; in answer to paragraph 17 she denied the transfer of the said mortgage was by way of sccurih onlv, and said that the mortgage was transferred to her absolutely and for full and valuable, consideration and in part payment of a deposit under a transaction between her husband and Joan Levien and that under the terms of the contract the mortgage, upon transfer, became'her absolute property. From an affidavid dofence she repeated the previous allegation* and said she took the transfer of the mortgage for valuable consideration and in good faith and without notice of any defect of irregularity in the title of the said Joan Levien.

Opening for the defence, Mr Murphy said as far an Mrs Rowles was concerned plaintifT must be nonsuited with costs. His Honor: I don't know as to the costo, the defence- was all taken together. Mr Murphy : I was going to ask that et this, stage Mrs Rowles bo relieved from the case. IIi:> Honor: I said I am not going to settle the ease as to costs. Mr Murphy proceeded to submit that plaintiff could not succeed on the bulk of the relief he was asking for. His Honor: Are you going to call evidence. Mr Murphy If So call it and you can address me later as to law points. The evidence of diaries Edward Levien, Joan Lsvien, Edward Levien and Oliver Noel Gjllcspio was then taken, and this closed the ease for defendant. Counsel intimated that they did not in-

tend to address the Court on the facts. His Honor said he was quite prepared to hear counsel. He did not think there bad been misrepresentation. "I think the plaintiff has been induced to give more than value for the property. He was told there was nothing but occupation rights, and these give no legal right. I do not think I am satisfied the agreement can be rescinded. There appeared to be a warranty of title in regarcf to section 21." Mr Murphy: Levien can apply for that title. His Honor: I am not certain but that I will allow an amendment. Mr Murphy thought that a title could be had to the section. Mr Baldvyin said he had had something to do with the Native Land Court, like his Honor, and one never knew when one would get a title. Mr Murphy: I would prefer the matter to be settled by the Court. Hi 9 Honor repeated that he was satisfied there was a warrantv as to title, and had no hesitation in ordering an amendment. He was satisfied the matter should come to an end. "I shall dismiss the suit," ho said, "without costs, except the costs of filing the defence by Mrs Rowles, on the understanding that it will bo an end to the whole matter, and that no claim will be made on the warranty." Mr Baldwin: I won't do that. His Honor then dismissed the suit, allowing the costs for Mrs. Rowles' filing her defence, with an intimation to counsel to settle the matter to the satisfaction of the parties.