THE COURTS.

New Zealand Mail, Issue 849, 8 June 1888, Page 22

THE COURTS.

COURT OF APPEALSeymour (Appellant) v. Apiata te FareHULA AND OTHERS (RESPONDENTS). The main contention of the respondents, the plaintiffs below, is that the lease of the 25th of June, 1879, to James Seymour, was void under the 4Sth section of the Native Land Act, 1873 j as having been made in consideration of a premium. Now the land included in the lease was held under certificate of title issued under the 17th section of the Native Land Act, 1867The Act of 1873 repealed the Act of 1867, but (S. 4) preserved existing rights. By the 97th section of the Act of 1873 it is provided that no land held under certificate of title under the 17th section of the Act of 1867 shall be alienated by sale, lease, or other wise, except in accordance with the pro* visions of the Act of 1873. It is contended, therefore, that although, by the 17th section of the Act of 1567, there is a power to lease for 21 years, and a premium is not forbidden to be taken, yet that the etfeet of the Act of 1873. is to forbid it as jto law held under the 17th section. Now the title of the Natives, either under certificate of title or memorial of ownership, is not a title known to English law at all. The certificate simply declares them to be owners according to Native custom, and the 87th section of tto Act of 1873 makes them absolutely powerless to deal with or affect the land in any way except in the manner prescribed by the Act. It has, however, been held in this Court that, while having no estate in the land, they have yet, by the Act, what is equivalent to a power of leasing, and that the lessee under the lease has the legal possession and can maintain trespass and ejectment.- The law as to statutory powers of leasing has been considered to be generally applicable to these leases. If, therefore, a lease has been executed contrary to the terms of the statutory power it would be void, and equity could not help the lessees, however meritorious they might be. Under these circumstances it is only reasonable, if it be sought to avoid a lease on such a ground that the proof of. its invalidity Bhould be exceedingly clear, more especially where those who seek to avoid it must haye been parties

to the Act, which, they now say,| renders it void, and when they would, by the avoidance, secure to themselves, without payment, any capital expended on the laud by the lessee. Now as to any actual payment the evidence is slight aud conflicting, and it would be difficult to say that a payment had been satisfactorily proved. Taking it, however, at the strongest in favor of the plaintiffs and discarding the evidence to the contrary, it only appears that a sum of money was paid to four Natives, £6 each to Rawiri Kawaka and Hapeta, £3 to Matua te Kaurangi, and a small sum to Epiha Purau, Now the certificate issued under the 17th section of the Act of 1567 specifies the names of 10 persons who are owners of the land accord, ing to Native custom, bus the names of all other persons interested are to be registered iu the Native Lands Court. It has always been held that under the Act of 1567 the power of leasing was vested in the 10 persons named in the certificate. The 9Sth section of the Act of 1873 makes, however, the assent of all persona wh Re names are endorsed on the certificate essential. ,

This provision is framed under a misconception, as the names of the persons interested were not under section 17 endorsed on the certificate, but wore registered in the Court. At any rate, we- think the proper persons to exercise the power were the persons mentioned in the certificate, but that the assent of the other persons interested was probably made necessary by the Act of 1873. Now none of these persons said to have received money were persons to whom the certificate was granted and in whom the power of leasing is vested. The contract for the lease js an entire contract, and unless it can be shown it was a part of the contract that a premium should be paid, the mere fact that a small sum of money was paid to two or three persons out of nearly two hundred whose assent is necessary to enable the. certificate holders to exercise the power of leasiug, but who were not themselves the persons to exercise the power, would not, in our opinion, necessarily vitiate the lease. The question, then, is what wa3 the real arrangement between the parties. On the whole, we think the right conclusion from the evidence is that James Seymour originally promised, at a meeting of Natives, to give £IOOO as a bonus for the lease, but afterwards, discovering that a bonus was not permitted by law, he retracted his promise. Some of the Natives may have possibly signed the lease under the influence of this promise, not knowing it had been withdrawn. Others, the plaintiff, Ma Whakatere amongst the number, were not influenced by any promise of the kind. The evideace of Wi Pere shows that Apiata and others of the Natives were aware before the completion of the lease that the giving £IOOO for the new lease had been abandoned. Apiata’s own evidence shows that while the lease was being signed he asked for the £IOOO and was refused. The greater number of the Natives must, therefore, have been aware when they signed the lease that no bonus would be given. There was, moreover, according to Ferris’ evidence, a meeting in August or September, 1881, after the lease had been completed, at which the question of the £IOOO was raised. James Seymour then refused to pay, and there appears to have been considerable discussion as to his refusal, the meeting lasting till three in the morning. It was, therefore, absolutely certain at this date that James Seymour disowned entirely any promise or liability to pay the bonus. Notwithstanding this, however, the plaintiffs were content to receive from James Seymour the rent reserved by the new lease and to allow him to remain in possession on the faith of it until July, 1857. without complaint of any kind, and having, moreover, themselves accepted an actual surrender of the old lease. Under these circumstances, it seems to us, the true inference is that the plaintiffs agreed to let the land mentioned in the lease at the rent reserved without any bonus. If the contract for a bonus had been lawful and the plaintiffs were now suing to recover it, it would be difficult to see how, even apart from the Statute of Limitations, which would be, of course, a complete answer, the evidence would justify a jury in finding that there was an existing contract to pay something in addition to the rent. Still less, if the plaintiffs were suing in equity, could they hope to rescind the lease on the ground that they had been induced to enter into it by misrepresentation. The acoeptance of rent under the new lease without protest for a series of years after the knowledge of the alleged misrepresentation would certainly amount to an election to affirm the lease. We see uo reason why, if the rent is fair and the conditions of the lease reasonable, the lease should not be good under the statute, although it may have been at one time in contemplation to give a bonus in addition to the rent, at any rate, if the lessors have, by their conduct, shown themselves willing to take the rent without the bonus. The question of the fairness of the transaction has, however, been twice the subject of judicial inquiry. Once before ihe Native Lands Court under section 62 of the Native Laud Act, 1573, and once before the Trust Commissioners under section 5 of the Native Land Frauds Prevention Act, 1870. In the one case the Judge of the Native Land Court, and in the other the Trust Commissioner, has certified his satisfaction of the fairness aud jastice of the transaction. From the certificate of the Trust Commissioner, section 7 of the Act of 1870 gives an appeal to the Supreme Court, and there has beeD no appeal. . . The certificate of the Trust Commissioner is dated the 17th August, ISBI, about the time of the meeting spoken of by Mr Ferris, when J Seymour denied his liability to pay a bonus. ... , If the lessors had then felt themselves wronged by Seymourthey could at once have raised the question in this Court and have shown that the certificate of the Trust Commissioner had been improperly obtained. We think in considering the validity of a lease of the kind the greatest weight should be given to the fact that its propriety and fairness has been inquired iDto and decided ou by a judioial tribunal specially appointed for the purpose. The Native -Lands Court, indeed, is a Court of Record for the recording of all transactions connected with the title to Native land. By section 84 of the Act of ISB3 all instruments are to be recorded iu the Court, aqd a note of the particulars of them is to be entered on the rolls of tbg Court, It was further conte&dgd that

the second lease was invalid as not being a lease in possession. Now when the second lease was completely executed and approved by the Court iu June, ISSI, James Seymour was undoubtedly iu possession, and he paid the rent under the new lease after that date. It was evidently the intoution of the parties that the new lease should operate from the time it was completely executed. It is quite true that at that time the legal estate in the first term was outstanding in Mrs Seymour as mortgagee, and remained outstanding in her for a short period, but it is clear it was the intention of all parties, including Mrs Seymour,, as appears by her power of attorney in April, 1881, that the old lease should be given up simultaneously with the completion of the ne w lease. There was no intention to postpone the operation of the new lease after its completion until an actual surrender of the old lease was executed. It was also said that all the parties interested had not assented to the lease by signing it. Now all who need sign the lease are those to whom the certificate was issued, aud they have signed. As to the others, the Marine Land Court has by section 98 of the Act of 1873 to be satisfied of their asseut. The Native Land Court investigated the matter in 18S1, aud was satisfied of the assent having been given. The Native Land Aetof 1873 does not give any appeal to this Court from the decision of the Native Land Court, and even if theref were now an appeal there is nothing to show that all parties did not assent. For these reasons we think the appeal must be allowed, with costs.

Tuesday, June 5. SHAW, SAVILL AND CO. V. TIMARU HARBOR BOARD. It will be remembered that this is.an action brought by the plaintiff shipping company to recover the value of the ship Lyttelton and her cargo, which foundered at Timaru some years ago. The case was tried in Wellington, when the jury gave the plaintiff a. verdict for over L 40,000. The defendant Board moved in November last before the Court of Appeal for a judgment in its favor on various grounds. The Court,’ consisting of the Chief Justice Mr Justioe Richmond, and Mr Justice Gillies, now delivered judgment. The Court held that the defendant was entitled to judgment oißthe ground that no sufficient notice of action was given by the'plaintiff;; Mr Justice Gillies dissenting. All members'- of tlie Court thought that, but for this defect, the plaintiff would be entitled to judgment. Costs were apportioned. Mr Bell, for the plaintiff, obtained leave to appeal to the Privy Council. > SEYMOUR V. APIATA. The Court, consisting of Mr Justice Gillies, Mr Justice Williams and Mr Justice Ward, delivered judgment in this case, allowing the appeal with costs. Mr Rees, on behalf of the respondent, obtained leave to appeal to tlie Privy Council- ' ■ ’ ■ -