THE COURTS.

New Zealand Mail, Issue 787, 1 April 1887, Page 22

THE COURTS.

SUPREME COURT. ♦ STNNORAN V. WEIR. {Judgment of Prenderga3t, C. J. f delivered March 4th, 1887-) Th'B is an action for possession of land, the plaintiff’s title being a Certificate of t’itle under the Land Transfer Act : ; his title commencing in June 1886. The defence is that the defendant is in possession under an agreement made January. 1885, for a lease for a term of three years, commencing on that date, entered into by one Taylor, a person who, though not 'then rezietered proprietor, became so in February, 1886, under an agreement for purchase made between Taylor and the then registered proprietor. By the agreement made between the defendant and Taylor for the lease-(which included other lands) the rent was payable in January in each year, in advance, and the defendant had the right to remove buildings erected by -him daring the term. The rent was paid in January, 11886, in advance, and the defendant, be'oro the plaintiff became registered proprietor, -spent £125 in erecting buildings on the land now .claimed by the plaintiff. In 1886 Taylor owed the plaintiff £3O and could not pay. The plaintiff, with the view of getting this LBO, persuaded Taylor to endeavour to force the defendant to provide this £3O by threats that if he (the defendant) did not become the purchaser he i(Taylor) would sell to some one else and that the defendant wonld thereby lose the benefit of his agreement for the lease, and of course the benefit of the payment of the advance rent and lose the money spent on the buildings. The defendant nevertheless declined to purchase, and the plaintiff himself took a trans for of the land from Taylor, not only knowing all the facts, but being the prime .mover and instigator in the fraud—for fraud it was—certainly <ff Taylor, and the question is whether it was not also fraud of the plaintiff, within the meaning of section 119 of the first Band Transfer Act and section 189 of the new Act of 1885. In my opinion it was. I think •the caße certainly fall? on the fraud side of the line" referred to in National Mortgage Company v. Vincent, New Zealand L.R 8.0 , Vol. 3, pu 264. The plaintiff not only had “knowledge of the unregistered interest ” but was the pro moter and instigator, and took the benefit of Taylor’s fraud. I incline also to the opinion that the defendant has a legal title as 'tenant of the land. loannot tbink that the Legislature intended that tenancies from year to year and lenses for not exceeding three years, or less than three years, of land under the Transfer Act should be prohibited. The language of the original Act rather favours a different conclusion. It may no doubt be argued that if an unregistered lease for three years or less is permissible, then as leases may be made to commeDCo in futuro the objects of the Land Transfer Act might be defeated. I prefer to conclude either that the possibility of such cases in future being made was overlooked by the Legislature, or that it was considered that as such leases would be so clearly against the epirit of the Act they would be deemed to be prohibited, and that it was not neoessary to provide for the case. But with regard to short tenancies in possession the oase is different. It would, I think, require express language to show that they are not to be created—there is none such in the Land Transfer Acts—and as pointed Out during (be argument, the inference to be drawn from the language of the original Aot is that their existence was contemplated by the Legislature; see sections 53 and 54 of the Act of 1870. It is to be regretted that the attention of the Legislature has not been called to the doubtful s' ate of the law with regard to leaees and tenancies for rot. erxceeding three years of land under the Land Transfer Acts. The colony in which the system had its origin, and from which onr first. Act was copied, has seen the uecrssity for making express provision on this subject, and it cannot he doubted that the law in tnis Colony on the same subject ought not to be left in such a very doubtful condition.

The defendant has, I think, certainly a good equitable answer to the plaintiff’s claim. He

has, in my opinion, an equitable tit-lo binding on the plaintiff, and that can, I am inc-'ined to think, be made available without either crossaction or counter-claim. I think it is the view that ought to be taken as the result ,of the provision that the rules of equity are to prevail. . This has not, I think, vet been decidod, hut such is, I believe, the accepted view, and though I aua not free from doubt on the point I am also of opinion, though with doubt, that the defendant has a a legal title ai having a tenancy not capable of and therefore not requiring registration. Judgment iw, therefore, for the defendant, with cost-i on the lowest scale.