FARM LEASE DISPUTE.

New Zealand Herald, Volume LXI, Issue 18664, 21 March 1924, Page 7

FARM LEASE DISPUTE.

CONSENT OF MORTGAGEES.

"WITHOUT ' PREJUDICE" CLAUSE.

A written judgment was delivered by Mr. Justice, Stringer at Hamilton Supreme Court in an action in respect of the lease of a farm property near Hamilton. Frederick James Tattley (Mr. Johnston) sought an order against Alice Ada Wagstaff (Mr. McDiarmid) for specific performance of an agreement dated October 31, 1923, by which defendant agreed to take the farm on lease for a period of five year.'!, on certain terms and conditions, and at a. specified rent. Alternatively, dsimages were claimed. It was expressly provided that the ' agreement was entered into subject to the consent of the three mortgagees of the property. His Honor said that two of the mortgagees had given unconditional consents, but the consent of the remaining mortgagee was in the following terms: "We ... hereby consent to the said memorandum of lease, without prejudice, however, to our rights and remedies under the said deed of mortgage." Defendant had refused to accept the lease on the ground that the consent of tho third mortgagee was not a compliance with the clause in the agreement. The contention »of defendant, proceeded His Honor, was that she would be in exactly the same position with regard to the lease as if the third mortgagee had absolutely refused his consent. That appeared to His Honor to be an impossible construction to place upon the consent. He was of opinion that the words after the word "lease" were in practice frequently introduced by the mortgagee's solicitor out of superabundant caution, and in his opinion they placed such a mortgage in no better position than in those cases where an unconditional consent had been given. His Honor held that the consent in question was a sufficient compliance with the terms of the agreement.