OREWA LAND ACTION.

New Zealand Herald, Volume LXI, Issue 18889, 11 December 1924, Page 12

OREWA LAND ACTION.

DIVISION OF A PROPERTY.

BOUGHT FOR CUTTING UP.

MISREPRESENTATION ALLEGED.

A cross-action in regard to land at Orewa, was heard by Mr. Justice Stringer in the Supreme Court yesterday. Charles Henry McCutchan (Mr. Goulding) sought rescission of a contract with George William Smith (Mr. Leary), in regard to sale of the land, and for refund of £300, deposit paid, and interest. He alleged misrepresentation, and alternatively repudiation of the contract by Smith, or as a second alternative, a mistake as to the subject matter involved. Smith, in his cross-action, claimed specific performance of the contract, and denied misrepresentation.

Mr. Goulding said McCutchan owned land at Orevi-a, on the Hauraki Gulf. Smith owned adjacent land, which was the subject of the contract. Smith placed his land in the hands of a land agent named Tipping, who submitted it to McCutchan. The principal feature of the property was its long sea or tidal river frontage. A line was laid down by Smith, running from nn existing road to the sea. This was the block submitted to McCutchan and it was estimated to contain 80 acres. Smith considered he owned 105 acres and he desired to keep his homestead and 25 acres. As the title was an old one it was recognised there might be a surplus. A lump sum of £1875 was' fixed as the price and when the principal agreement was signed the question of allowing a margin was discussed.

Proposed Adjustment of Areas. It was agreed to leave a margin of two acres, so that if McCutchan had 82 acres, Smith would have two acres less, and vice versa, while the price would be varied accordingly. McCutchan took possession, paid £300* deposit, and began draining. Afterwards Smith personally conducted McCutchan round the properties. It was found there were 99 acres in McCutehan's block. Smith then claimed he right to swing the fixed road line so as (o cut off exactly the agreed area. Alternatively he waited McCutchan to pay "for the additional hind. McCutchan refused to pay for 99 acres, but did not want to loose a large portion of the sea frontage. Plaintiff said he*would not. have given £10 an acre for the land for farming. The block was submitted to him as a cuttingup proposition, with quarter-.icre seaside sections.

Samuel Steven Tipping gave evidence of the negotiations between the parlies. The question of excess of area was discussed between defendant, witness and a surveyor named Murray, and witness then said the line would have to stand, irrespective of area. This was agreed to, but nothing definite was done until later. Witness was positive the boundary line was not to be swung.

Evidence Concerning Agreement. John Henry Mansell, solicitor, stated he prepared the agreement and supplementary agreement. Later ho was in Tipping's office when plaintiff and defendant were there, and it was agreed verbally that if there was an excess, the parties'should take it in a certain ratio.

Cross-examined, witness stated plaintiff had said that if defendant would not come to terms about the excess area he would cancel the agreement, or take a mortgage for his deposit. Mr. Leary, in opening for the defence, contended the agreement provided that the land had to be surveyed so as to contain not more than a certain acreage. If there wero an excess then Smith had his remedy either by claiming extra money or cutting out that portion of the land. After occupying the land for a quarter McCutchan 'paid interest for this term. Mr. Leary submitted this indicated plaintiff's recognition of the provisions of tho contract. Defendant stated he had opened negotiations with Tipping assuming the agent was acting for McCutchan. Witness understood bis property had an area of 105 acres, and that it would be reduced to about 80 acres after allowing for the reservation of a portion which he wished to retain.

" Had Never Seen the Property." It was agreed that witness should sell to McCutcnan for £1375 on the basis of 80 acres. Mansoll prepared an agreement, allowing a margin of two acres on either side of the specified area. Witness heard plaintiff remark that, lie was buying a property which he had never seen hut was satisfied to take Tipping's advice. When MeCutehan's division was surveyed it was found to contain 83 acres 12' porches. Witness objected to this, and asked the surveyor to arrange that the road should be laid so as to leave McCutchan not more than 82 acres. A pro rata division of the excess was suggested to witness, hut ho objected as he considered plaintiff was not entitled to more than 82 acres. James Murray, surveyor, deposed that ho had prepared a. plan of Smith's propcrtv. A. St. Clair Brown, solicitor, gave evidence regarding the legal proceedings in connection with the transfer of Smith's property. Legal argument followed. His Honor reserved decision.