DISPUTE OVER FARM.

New Zealand Herald, Volume LXVIII, Issue 20989, 28 September 1931, Page 9

DISPUTE OVER FARM.

QUESTION OF POSSESSION.

INVOLVED LEGAL POSITION,

RESERVED JUDGMENT .GIVEN. A judgment by Mr. Justice Smith . in which the rights of purchasers under agreements for sale and purchase and methods of procedure were defined was delivered in the Supreme Court on Saturday. The case arose out of a dispute involving a farm of 152 acres at Hunua. Plaintiffs were Albert P. Hargreaves and Allan Kenneth Patcrson, of Auckland, farmers (Mr. Quartley and Mr. Phillips), who proceeded against Dr. E. S. Dukes, of Auckland, and Leslie Houchen, of Hunua, farmer (Mr. Hunt). By agreement of Juno 17, 1930, ft was stated, Dr. Dukes as mortgagee sold a property at Hunua to A. K. Paterson, for £1750, and Paterson became entitled to possession on that date. On September 15 Paterson agreed to sell the land to Albert Hargreaves, who entered into possession and made a share-milking agreement with Houchen. It was alleged by plaintiffs that on March 7 Dr. Dukes wrongfully entered on the land and took possession of it, putting the defendant, Leslie Houchen, into physical possession either as 'tenant or agent. Hargreaves claimed that he had been deprived of the rents and pro-fits of the property, and sought a declaration from the Court that he was entitled to possession of the land, to £IOO damages for trespass, and that accounts should be taken between him and defendants. In addition, a declaration was sought that the agreement of June 17, 1930, was in full force and effect.

Question ol Contractual Rights. Tho defendants claimed that Houchen had been lawfully in possession of the property since September 8, 1930, and that Hargreaves was not entitled to the rents and profits from it. His Honor said it was necessary to examine the contractual rights of the parties. It was clear that Dr. Dukes and Hargreaves were not in any contractual relationship, while the agreement between Dr. Dukes and Paterson had not been cancelled. Paterson had not assigned his agreement to Hargreaves, but had entered .into an agreement for subsale. At no time had Paterson's agreement been cancelled and Hargreaves substituted as the contracting party with Dr. Dukes' on the terms of Paterson's agreement with Hargreaves. It was clear, therefore, that Hargreaves could bring no action against Dr. Dukes based on any contract between them, but must rely on a claim that he was rightfully in possession of the property. Paterson admitted that a3 against him Hargreaves was entitled to possession and the question was whether Hargreaves was rightfully in possession against Dr. Dukes. -"In my opinion the notice given on behalf of Dr. Dukes on February 5, 1931, was not a sufficient notice," continued His Honor. "Furthermore, Dr. Dukes had no right of re-entry. He had to cancel his agreement with Paterson before he could re-enter. What he did was to re-enter before he cancelled that agreement. Judgment For Hargreaves. "I am of opinion, therefore, that Dr. Dukes had no legal right to enter the property. Houchen at the time of entry repudiated bis obligations to Hargreaves and entered into an agreement with Dr. Dukes. No doubt he relied on the validity of Dr. Dukes' re-entry. "I think, therefore, that Houchen must be treated as a trespasser upon land of which Hargreaves was entitled to sole and exclusive possession. Hargreaves' title was sufficient to give him the right to tho sole possession of the land as against- Dr. Dukes and Houchen, and they wrongfully dispossessed him." . His Honor made a declaration that the agreement, between Dr. Dukes and PaterSon was not cancelled, that Hargreaves was entitled to tho possession of the land and to the rents and profits as from that date, and to £25 damages and costs on the highest scale.