PURCHASE OF A FARM.

New Zealand Herald, Volume LXVII, Issue 20642, 14 August 1930, Page 15

PURCHASE OF A FARM.

PROPERTY SOLD FOR £22,356. ORDER TO FULFIL CONTRACT. WITHDRAWAL NOT JUSTIFIED. [BY TELEGRAPH. —OWN CORRESPONDENT.] HAMILTON, Wednesday. An order requiring tho defendants to specifically perform a contract to complete tho purchase of a farm property was made by Mr. Justice Herdman in a. reserved decision given in the Supreme Court tit Hamilton to-day. The plaintiff was I'rederick Edwin Bishop Lovelock, a farmer, of Eurekaj and the defendants were Henry Martin Boyle and James Glcnny Boyle, drainage contractors, of Chrislchurch. Mr. Gillies appeared for plaintiff and Mr. Donnelly for tho defendants. The property concerned is known as Wavcrley Islands and consists of 2484 acres of swamp and improved swamp country, which defendants agreeed on December 21, 1929, to purchase at £9 per acre. The amount involved in the transaction was therefore £22,356. There were two mortgages on the property, ono of £7530 held by the Public Trustee and ono of £3500 held by a private lender. Both these mortgages defendants agreed to take over. Objections by Purchasers. Ilis Honor said there was no disputo about the facts of tho case. The reasons defendants gave for refusing to completo the purchase were that they claimed that the contract was made subject to a condition that the Public Trustee should consent to the sale, and that that condition had noL been fulfilled, and that under tlie contract tho defendants could not be required to take over mortgages which contained a covenant binding the mortgagor to obtain from a. purchaser or new owner a personal covenant respecting the Public Trustee's mortgage. His Honor said the contract was an open one. No time was fixed for completion, but it was provided that possession should be given on February 1, 1930. The purchasers' solicitors forwarded the sum of £224 5s 9d, so that the contract might be stamped, and on January 17, 1930, after search had been made, the solicitors despatched to the vendor's solicitors in Hamilton a transfer for perusal and execution by the vendor. That transfer was accepted and duly executed. On January 30. 1930, the vendor's solicitors were notified that defendants would not execute the deeds of covenant, and on February 7 tho purchasers' solicitors telegraphed giving notice that the contract was cancelled. Reasonable Search Not Made. The judgment said evidence had been given that the Public Trustee had been willing to consent to the transfer of the mortgage, and had consented when asked to do so. The existence of the covenants contained in the mortgages, to which exception was taken by tho purchasers, would have come to the knowledge of their solicitors if reasonable search had been made. From December until the end of January the purchasers .allowed tho transaction to proceed, as if there was nothing to take exception to. They sent the money for the stamp duty and they sent forward the transfer for execution. This did not necessarily operate as an acceptance of tho title, but it was a circumstance from which the inference might be drawn that outstanding objections or requisitions had been waived and the litis accepted. The defendants in this case agreed to purchase an equity of redemption, they contracted to take the property subject to the existing mortgages, and having given careful consideration to. all the facts and circumstances His Honor said he had been unable to discover anything which entitled tjiem to bo released from their bargain. Judgrtient was given fcr plaintiff with costs on the highest scalo as on a claim for £IOOO.