PROPERTY TRANSFER.

New Zealand Herald, Volume LXIII, Issue 19513, 17 December 1926, Page 16

PROPERTY TRANSFER.

SEQUEL TO' ASSAULT CASE. A'DEAL BETWEEN BROTHERS. • FRAUD HELD NOT PROVED. "An action to set aside an allegedly fraudulent transfer of land by a man who had been convicted of a crime was decided in the Supreme Court yesterday by Mr. Justice Herdmaa. The action, which was heard early in October, Was brought by the official assignee in the bankrupt estate of Harry White Fratwell, of Waerenga, farmer, against Archibald Charles Fret-well, of Waerenga, farmer, brother of the bankrupt, to yet aside the conveyance of 80 acres of land from the bankrupt to A. C. Fretwell, and a mortgage in favour of the bankrupt,; further, to obtain an order compelling A. C. Fretwell to deliver up , certain stock and chattels. The defendant and the bankrupt had owned adjoining farms at Te Kauwhata. | On August 21, 1923, H. W. Fretwell and another man violently assaulted a farmer, Cluny James Drake. They wore tried in the Supreme Court on November 6 and 7, 1923. On the second day of the trial H. W. Fretwell conveyed his property to defendant, and a deposit of £SO was paid. Later Drake obtained judgment for £638 damages in respect to the assault, and H. W. Fretwell was adjudicated bankrupt in November, 1925, nothing having been paid in accordance with the judgment. The official assignee contended the transfer of the property was a scheme undertaken in anticipation of a claim for damages. Position oil the Bankrupt. His Honor held that at the dates of. the transactions H. W. Fretwell'had not been sentenced, and consequently had not become a convict. The transactions could therefore not be invalidated on that ground. Regarding the other contention, that the transfer was made fraudulently to defeat a possible claim for damages by Drake, His Honor said: "At the date of jthe transaction bankrupt was apparently solvent. His debts were few, and there Is no.satisfactory proof that he anticipated a claim from Drake. There was, of course, a possibility that Drake might, sue for damages, but, on the other hand, he might have remained content with the punishment by imprisonment- which had been visited upon bankrupt through .'his action. If .Drake did take action, how cbuld bankrupt know what a jury would award? They might have given nothing at all, or they might have awarded £lO or £IBO or a larger sum." Advice by Solicitor. After' referring to the evidence of the bankrupt's solicitor, Mr. J. Osborne-Lilly, that the transfer had been made to save the property from going to ruin while the owner was in gaol, His Honor remarked : " The case is that, of a man possessing intelligence of a low order who, being faced with a serious crisis in his life, placed himself in the bands of his solicitor, who, rightly or wrongly, thought that, as his client could not avoid imprisonment, it was best that he should sell his property to his brother. Mr; Osborne-Lilly admits he was the author of the scheme, which mads defendant the purchaser of bankrupt's stock and farm, and 'quite frankly gave'his reason "for the advice he tendered." The application was refused, and judg.* meat was given for defendant, with costs. At the hearing Mr. Gould appeared for plaintiff, and Mr. Northcroft for defendant.