Family Dispute Over Land

Manawatu Times, Volume LIV, Issue 7301, 31 October 1933, Page 9

Family Dispute Over Land

SALE OR SUBDIVISION QUESTION FOR COURT In the Supreme Court at Palmerston North yesterday morning, the Hon. Mr Justice MacGregor was engaged hearing an application for an order to sell a farm property at Foxton. Tho plaintiffs woro Honora Agnes Maria -Bartholomew, married, of Levin; Annie Hastings Winifred Neylon, of Foxton; and Elizabeth Gertrude Agatha Neylon, also of Foxton. The defendant was John Patrick Francis Neylon, farmer, of Otaki. It was shown in the statement of claim, that the three plaintiffs and defendant (brother and sisters) were the owners as tenants in common in equal shares of a farm property of 118$ acres at Foxton. According to plaintiffs the land was highly improved but quite unsuitable for division, and if sold entire, was likely to realise a higher price than any allotments would realise. The land was irregular in shape and consisted of different classes and of varying values, which would be difficult to divide into portions of equal value. The plaintiffs, Annie Neylon and Elizabeth Neylon, were in occupation, but all three plaintiffs asked for a sale of the land.

The defendant set out that the land had five road frontages and could be readily partioned; that it comprised two distinct areas of 94 acres of firstclass land and 24} acres of a lighter quality, and that the values could readily be apportioned. The land was temporarily very much depreciated in value and a sale would give plaintiffs the opportunity of purchasing defendant’s fourth share at less than its real value. He, himself, was unable financially to compete for the purchase of tho shares of plaintiffs. His one-fourth share was mortgaged to one Walter Cecil Baker for a sum of £9OO, tho loan being collaterally secured over the whole of the live and dead stock of defendant. The sale of his share would deprive him of protection being sought as a mortgagor under tho Mortgagors’ Relief Act. At tho present time he was dairying on tho banks of the Otaki rivor, but by reason of losses suffered from floods and the low price of dairy produce, he had lost his equity in those lands and negotiations were now in progress for defendant to deliver up possession to the mortgagee in consideratoin of his obtaining a full discharge of his mortgage. When those negotiations had been brought to finality, the result would be that ho would have no assets other than his fourth share in the land at Foxton and his equity in the stock. His desire was to farm his fourth share. Ho was married with two children.

Mr Bergin (Foxton) appeared for plaintiffs, Mr Atmore (Otaki) for defendant, and Mr Cooper (Palmerston North) for the mortgagee, W. C. Baker.

For a start counsel argued the point as to whether the mortgagee should be joined in the case, Mr Atmore opposing the matter on the grounds that the mortgagee's inclusion was tantamount to forcing a sale of tho farm. Mr Bergin pointed out that tho mortgagee was vitally interested in that his security was in respect of the whole 118} acres. If the land was divided, the security would bo then only over tho portions held by defendant and Mrs Bartholomew, who had guaranteed tho mortgage. Mr Cooper intimated that the mortgagee consented to be joined in the action.

His Honour made an order joining Baker in.

In opening the ease for plaintiffs, Mr Borgin stated that if the property were divided, Mrs Bartholomew, who as an act of generosity had helped her brother, would find her share mortgaged to Baker, but if the farm were sold as a whole, even at tho reserve price fixed, there would be sufficient to pay Baker off. Under a partition of the land, Mrs Bartholomew stood to suffer far more than defendant would in his present circumstances.

Mr Atmore, for the defence, said he relied on three points: Firstly, the time was not an opportune one for selling a farm; secondly, the property could bo readily divided into four parts of approximately equal value, or two parts, one of a quarter share and the other of three-quarters share. Ail that was roally needed was the cutting off of defendant’s one-quarter share. The third point was that an undoubted hardship would be inflicted on defendant by a sale at the present time. Further, if a sale were forced at the moment defendant would not be able to receive relief that he was seeking under the Mortgagors’ Belief Act. The producing value of the farm was considerably in excess of its selling value. Defendant was willing to lease ■the property or share-milk on it till land prices improved, but plaintiffs would not accept either proposal. The producing value of the land was from £65 to £75 per acre. It had been purchased by the late Mr Neylon, father of plaintiffs and defendant, in 1853. Suggested plans of sub-division were submitted by Oscar Monrad, land valuer, of Palmerston North, who estimated the selling value of the property at £SO per acre (equal to butterfat at 8d per lb), tho producing value £64 per acre (butterfat at lOd), and £76 per acre (butterfat at Is). He never saw a place more suitable for sub-divi-sion, as it had two road frontages and three street frontages.

To Mr Bergin: If ho had the place in his hands for sale, he would first try and sell it as a whole.

Defendant gave evidence to the effect that when he and his brother farmed the estate on lease, it had carried 93 cows and from August, 1919, to May, 1921, the gross revenue had been £3509. The place could be easily subdivided and Mr Monrad’s schemes were quite practical. Witness’s estimate of the value of the Foxton property was £7O per acre. Answering Mr Bergin, defendant said he could carry on if the property were divided, without his sister’s guarantee of Baker's mortgage. He, himself, had submitted a proposed subdivision to his sisters which they would not accept, but he was not prepared to allow them to buy out his share at a reserve fixed by tho Court. He was prepared to sell at a figure that he thought reasonable —£70 an acre. If the farm were all his and he wanted la sell,, ha would have it divided first

according to Mr Monrad’s scheme. More would be got for it that way. Defendant had no more evidence to offer. Mr Bergin, for plaintiffs, submitted that the shapes of the four new farms after Mr Monrad had done with them was enough to condemn them. Counsel declared that even if sold at tho reserve price of £45 per acre, there would be more than sufficient coming to defendant for his quarter share to pay off the mortgago owing to Baker and release his sister of her obligations.

In evidence Bernard G. Gower, of Foxton, said lie had farmed the property adjacent the Neylons, since 1880, and considered a sale of the land far preferable to sub-division. To Mr Atmoro witness said he did not know what the returns had been off the Neylon property. "Witness’s experience had been all with fattening cattle and not dairying, but he would be surprised to learn that 93 milking cows had been carried successfully on the place. Norman Henry Mackie, Government land valuer, said he had made a recent valuation of tho Neylon property, at £46 14s per acre. If consulted by his department about the farm, he would advise selling it as one block or as an alternative, divided into two portions only. It was possible to subdivide into four lots, but not economically. Witness declared that even now the selling value of land was always above the productive value, and he was surprised that Mr Mon'rad should have submitted figures showing that the productive value was higher than the selling value (£64 as against, £SO). His Honour; If you knew as much of land values as I do, you won’t be surprised at anything. Kenneth McDonald, land valuer, of Palmerston North, declared that the farm would bring more money as a whole than cut up. The difficulty was that there were parts of the farm quite useless for farming on their own, but very useful at certain times of the year with the property as one unit. Witness reckoned it could be sold at £42 per acre, which would give the purchaser a living, but allow him nothing to repay capital. It would be almost impossible to divide the farm into four lots of equal value. His Honour said he was quite satisfied he must' make an order for sale. The law said he must make an order unless he could see good Tcason to the contrary. Defendant had pleaded that the time was inopportune for selling, but it would bo assuming the role of a, prophet to say that tho price of land would bo higher in 12 months. Certainly it was not the rolo for the Court. The second plea that the farm could be subdivided easily had not been proved. As a matter of fact it seemed commercially impossible to divide it equitably, and further, it appeared the farm could bo sold more easily as a whole. His Honour did not think plaintiffs would desire a sale of ' the land if they had not been reasonably advised that such a course was in their own interests. The order for a sale would be granted, but first there must be a valuation of the property and a reserve fixed. All parties would have the rightt o bid at tho sale.