MISSING MORTGAGEE.

New Zealand Herald, Volume LXVI, Issue 20288, 22 June 1929, Page 16

MISSING MORTGAGEE.

EXTRAORDINARY COURT ACTION WOMAN'S EXISTENCE DENIED. « PROPERTY TITLE INVOLVED. POWERS OF PUBLIC TRUSTEE. A complicated legal action necessitated by the complete disappearance of a mortgagee was settled in a detailed judgment given by Mr. Justice Blair in tho Supreme Court yesterday. The plaintiff was Dr.* James Hardio Neil (Mr. Stilwell), and the defendant H. M. Rogerson (Mr. Terry). Mr. A. H. Johnstone appeared for the Public Trustee as representing the missing mortgagee, Annio Jane Gallagher. In August, 1923, tho plaintiff purchased for £3OOO a property in Grey Street. The title was subject to a mortgage which in February, 1904, was executed by the owners, Mr. and Mrs. Thorn, in favour of Annio Jano Gallagher, of Londonderry, Ireland, to secure the payment of £3OO on February 1, 1910, without interest. Dr. Noil bought the property free of encumbrance, but as the mortgagee, Miss Gallagher, could not be fQund, and it was not known whether she was dead or absent from New Zealand, or whether she was actually an existing person, tho course adopted was that ho took title without the mortgage being discharged,,, and a sum of £350 was deposited in the savings bank to meet tho claims of the mortgagee when they should arise. Stories by Mortgagors. In August, 1923, Mrs. Thorn, one of tho mortgagors, made a declaration that Miss Gallagher, tho mortgagee, was hexdaughter by a former marriage; that the fhortgage was given for the purposo of making a gift to such daughter of tho principal money on her attaining 21 years of age; that Miss Gallagher died in infancy, but that sho had no record of such death or means of ascertaining same; tiiat no interest had ever been paid on tho mortgage since it was given, and that she believed herself to bo the solo next-of-kin of the mortgagee. In 1927, Thorn, tho husband, made a declaration before a notary in Ireland to tho effect that his wife, Mrs. Thorn, died in Dublin on November 4, 1926, that no interest on the mortgage had been paid at any time; that to the best of his belief Miss Gallagher, the mortgagee, never existed, and that his wifo a few weeks before she died admitted that she was tho mortgagee, and that sho had assumed her mother's maiden name, "Gallagher" for the purpose of protecting tho amount which she, Mrs. Thorn, had advanced toward the purchase of tho property. Declarations Not Accepted.

Ilis Honor said that both declarations wero by interested parties, and he could not pay any intention to the hearsay statements embodied in Mr. Thorn's declaration. For the purpose of tho case hemust assume, until the contrary was properly proved, that there was a Miss Gallagher who, in February, 1904, lent £3OO without interest to Mr. and Mrs. Thorn; and he must assume either that sho was alive, or, if dead, that she might have left a will or next-of-kin competent to claim.

Somebody owned this mortgage, but who the owner was was in doubt; and it was clearly a case in which the Public Trustee might be appointed to take possession and administer. There would be difficulty, however, in turning the present originating summons into an application by the Public Trustee. The case was a proper one for the Public Trustee to make application for an order to exercise all necessary powers. This would enable him to solve Dr. Neil's difficulties, to make inquiries as to the existence of Miss Gallagher or her next-of-kin, and to collect such moneys in the bank as belonged to her.

The main question in the summons was: What is the amount of interest payable by the mortgag/br to the mortgagee for the period which has elapsed since the due date of the mortgage? His Honor fixed the rate of interest at 6 per cent, from February 1, 1910, to September 18, 1923, and thereafter the mortgagee was entitled to the whole of the interest earned on the £350 paid into the bank. The costs of the Public Trustee and Mr. Eogerson as between solicitor and client should come out of the fund. As far as Dr. Neil was concerned, the proceedings were instituted for his benefit, and His Honor therefore made no order for costs.