UNIQUE LEGAL CASE.

New Zealand Herald, Volume XLIV, Issue 13455, 6 April 1907, Page 7

UNIQUE LEGAL CASE.

A NON-EXISTENT "DEFENDANT."

At the Supreme Court yesterday Mr. Justice Cooper gave his judgment in the ease in which Mr. McGregor, representing Alexander McKenzie, of Omaha, filed a motion for direction as to service in connection with a certain deed of conveyance. His Honor remarked that the case was a peculiar, and, so far as he could ascertain, a unique one. Plaintiff, widower of Catherine McKenzie (deceased), was the executor of her will, and the sole devisee of her estate. Probate of the will was granted to plaintiff. On toiler 8. 1838, she was the owner in fee simple of 26 acres at Omaha. A deed purporting to l>e signed by Mrs. McKenzie, and dated October 8, 1888, and purporting to mortgage this land to one Catherine Hodgson: also a deed of conveyance, bearing the same date, and purporting to be signed by Mrs. McKenzie, and to convey the land, subject to the mortgage to Mrs. Hodgson, to a person described on the deed as Alexander McKenzie, son of Catherine McKenzie, also a deed, purporting to be signed by Alexander McKenzie in favour of Mrs. Hodgson (dated February 5, 1889). have' all been registered against' the land. The plaintiff alleged that the mortgage deed and conveyance were forgeries; that Alexander McKenzie, described as the son of Catherine McKenzie, never had any existence, and that some person unknown to the plaintiff had forged Mrs. /McKenzie's signature to the deeds, and had also, representing himself as the son of Mrs. McKenzie, executed the further charge to Mrs. Hodgson. The deeds had been prepared by a solicitor, formerly practising in Auckland, but now dead. Mrs. Hodgson's solicitors had investigated the matter, ami. being satisfied 1 that, the mortgage and further charge were forgeries, she had by deed relinquished all her claims to the land as mortgagee. Hot the- conveyance still remained upon the register, and 1 tiie action was brought for the purpose of obtaining the decree of the Court that Alexander McKenzie, descrilted in the conveyance, had no estate or interest in the land, and had no title to the land as against the plaintiff; practically the suit was one to 'set aside the deed of conveyance. As the person described as Alexander McKenzie could not be found, the present motion was for direction as to service., and no relief could bo obtained in the matter by plaintiff except by a suit, there being no jurisdiction in the Court to order the register to be reelified by the cancellation of the registration of the forged deed. It- was also clear that as Alexander McKenzie could not bo discovered, personal service upon anyone was impossible, and as Mrs. Hodgson had vacated her deed she was no longer interested: i:i the matter. His Honor said no case of a .similar kind was reported in the law books, so far as he was able to discover, but. he was of opinion that the Court might, within its jurisdiction, assist the plaintiff to obtain the. relief to which he claimed to be entitled, and such relief opuld be given under the wide provision of rule 52, providing that service in any case not, specified should be effected in such manner as the Court shall direct. Ho therefore ordered that service be effected by publication in the newspapers of the writ, of summons, and a copy of the statement of claim bo affixed and maintained for a certain time upon some conspicuous part of the land in question.