SALE OF LAND

Manawatu Standard, Volume LIII, Issue 285, 30 October 1933, Page 8

SALE OF LAND

• COURT ORDER SOUGHT. LITIGATION FROAI FOXTON. Seeking an order declaring a sale of land and distribution of the proceeds, under the Property Law Act, 1908, an action was commenced in the Supreme Court at Palmerston North to-day, before His Honour Air Justice McGregor, by Airs Honora Agnes Bartholomew, Miss Annie Neylon, and Aliss Elizabeth Gertrude Neylon, of Foxton, against John Patrick Neylon, farmer, of Foxton. Air B. Bergin appeared for plaintiffs and Mr C. F. Atmore for defendant. Plaintiffs, in their statement of claim, set out that they and the defendant were the owners as tenants in common in equal shares of an estate of 118 acres 2 roods 3 perches, comprising three areas of 24 acres 1 rood 37 perches, 76 acres 2 roods, 6 perches, and 17 acres 2 roods respectively. They claimed that the land, in its present size and condition, was a highly improved dairy farm, unsuitable for division and, if sold entire, was likely to realise a higher price than would the allotments, if sold after a partition. They added that the land, which was in the personal occupation of the Alisses Neylon, would be difficult to .into portions of equal value. Plaintiffs sought an order declaring a sale of the said land and distribution of the proceeds. Defendant, in his statement of defence, admitted that the land is a highly improved dairy farm, but denied the other allegations. He said the land had five road frontages and could be readily partitioned; that it comprised two distinct areas consisting of 94 acres of first class land and 24J acres of land of a lighter quality, and that the values couid readily be apportioned. Defendant added that the land was temporarily very much depreciated in value, and that a sale would give the plaintiffs the opportunity of purchasing his undivided fourtn share at less than its real value; aiso that lie was unable financially to compete io r the purchase oi the shares of the plaintiff's. His onel'ourtii tuidivided share was mortgaged to tv alter Cecil Baker lor a loan ol £9OO collaterally secured by an instrument over deiendant’s stock. He claimed that the sale of his share in tlie land would deprive him of the protection lie was now seeking under tlie Mortgagors Relief Act, 1931. He had, througn severe losses, lost liis equity in another property at Otaki, with the ultimate prospect that he would have no assets other than his one-fourth share in the Foxton land, and his equity in the stock, and he desired to farm his share. Application was also made by plaintiffs for an order to add Walter Cecil Baker as a defendant. This was opposed by Air Atmore on the grounds that there was no cause of action. Air H. R. Cooper, who appeared for the mortgagee, said the latter wished to protect his own interests, but did not want to force a sale or interfere in any way. His Honour made an order joining Air Baker as a defendant. Counsel for plaintiffs said the reserve price which they would fix would provide more than sufficient from any one-fourth share of the land to pay off the mortgagee. His Honour said the law appeared to be now that if at least more than half of the beneficiaries desired a sale, that must be ordered unless good cause could be shown to the contrary. Evidence was given by Bernard Gapper Gower, who stated that he had occupied a holding adjoining the Neylon farm since 1880, that the property was practically impossible of subdivision, and a sale would be far wiser. Cross-examined witness said he was not a dairy farmer, but he considered the property would carry about 70 head of cattle. He would not be surprised to know there were at present 83 head on it. He would, however be surprised to learn that 93 heifers had successfully been milked on it. It was impossible to secure a just subdivision of the property. Following the suggestion of His Honour that he should submit his case first, leaving plaintiffs free to call evidence of rebuttal, counsel for the defence submitted that it was an inooportune time for a sale and that the' property could be divided into four parts of equal value, or into two parts, one of three-quarters and the other a quarter share. Undoubted hardship would be inflicted by selling at the present time. Defendant had offered to lease the property or sharemilk on it until times improved, but plaintiffs would not accept that. A forced sale would deprive him of any benefits under the Mortgagors Relief Act legislation. The producing value of the property was between £65 and £75 per acre. Oscar Alonrad, land agent and valuer, of Palmerston North, gave evidence regarding the dairying qualities of the land. He would consider the selling value at £SO an acre and the producing value at £64 an acre, with butterfat at 10c! a pound. He had never seen a place so suitable for subdivision, as it had two road frontages and three street frontages. In reply to Air Bergin, witness said that if he were handed the property to sell he would first of all try to sell it as a whole before trying to sell it subdivided. Defendant said from the witness box that he had been born on the property and he considered it one of the best dairy farms in the district. In his opinion the farm was ideal for subdivisional purposes. From his point of view everything seemed to be in order with a subdivisional scheme submitted by the former witness. He considered that the Foxton property was worth £7O an acre. At this stage the Court adjourned for lunch.