THE COURTS.

New Zealand Mail, Issue 910, 9 August 1889, Page 10

THE COURTS.

SUPREME COURT.

IN BANCO. August 1. (Before his Honor the Chief Justice.) HALES AND ANOTHER V. BURNE AND anothe'r. This was a special case stated by consent for the opinion of the Court. Joseph Burne purchased two country sections of land, which he proposed his nephew Richai’d Burne should take up to form himself a homestead. The property was subject to a mortgage for LISOO, and Joseph Burne purchased the equity of redemptien for L 371. He wrote, to . his nephew informing him of this, and that he should expect to bo repaid the Llß7l somo day, and in the meantime to be paid interest at L 8 per cent, per annum. The nephew Richard went into possession and improved, but was unable to keep up the payments of interest, and after some years his-uncle wroto to him informing him lie had de cided to make a free gift of one of the sections to another nephew, Joseph W. Burne, a cousin of Richard’s, and of the remaining one to him, Richard. To this Richard Burne assented. Joseph W. Burne went into possession of his section, Richard remained in possession of his, and both continued to improve the land. No transfers were, however, executed, and at the death of Joseph Burne he was still the registered proprietor, subject to the mortgage for LISOO, which still remained unpaid. The questions for the opinion of the Court were whether the nepli9ws, Joseph W. and Richard, were entitled to the fee-simple, and whether the executors and trustees of Joseph Burne were bound to transfer it to them free from encumbrances. Dir Hall, for W. Joseph aud Richard Burne, cited Dillwyn v. Llewellyn, 4 De G.F. and J. 517. Mr Stafford, for the trustees, cited Richards v. Delbridge, L.R., 18 Eq. 11. Hi 3 Honor the Chief Justice delivered judgment as follows : 1 do not think that in this case it is necessary to reserve my decision. The case cited by Dir Hall seems to conclude the matter. Without authority I should have come to the same conclusion. With that authority it seems to me not only that the question is beyond doubt, but that it is unnecessary that I should consider the matter. No doubt where there are transactions by testators in the nature of gifts, but uncompleted, there for executors acting without the opinion of the Court. In this case one must look at the commencement of the transaction. It was a loan. The testator in effect said : “ I will lend you the money to buy this land, but I must have security. This will be the way to do it : The land is subject to a mortgage. Instead of paying this off, having the laud transferred to you, and then mortgaged to me, it wili be better, it will be less ex.pensive, to have it transferred direct to me, subject to the existing mortgage.” If this had been a beneficial purchase, as it might have been, there would have been nothing to prevent the nephew from coming to him at any time and demanding to pay off the loan, and to have the land transferred to him. As it was the nephew, although he did not do this, was in a position to stipulate for any" mode of dealing with the property ; he could have assented or dissented to any proposal which the uncle might make for dealing with'it. He was, no doubt, in his uncle’s power, but his uncle did make a proposal, which he, Richard, assented to. One of the terms of this proposal was that his cousin Joseph should come in. This proposal was actually carried out, though not by conveyance. Even supposing the uncle had taken up the position that by reason of Richard’s default he could deal with the property without his consent, if, having taken up that position, he had made thi3 proposal to Richard and Joseph, and they had gone into possession and laid out money, the principle of Dillwyn v. Llewellyn would still have applied. I think the case of both nephews is stronger than that case. For these reasons I answer the questions in favour of both nephews. With regard to the question whether the executors are bound to pay off the mortgage, I think they are. It was a loan by the uncle, and then a gift of the amount lent. The letters amount practically to a receipt for the money. The uncle practically said, “ I will give the property free from encumbrances if you go into possession and improve. The nephews assented, and carried out the proposal. It would have been a most imprudeut thing fora young man without means to go into possession and spend his time and money in improvements on land subject

to a heavy mortgage which he might be called upon at any moment to pay off on pain of forfeiting his expenditure. L 33 costs of suit, and special case allowed to the defendants but of the testator’s estate.

W EDNESDAY, AUGUST 7th. (Before Richmond, J.) POAKA AND OTHERS V. WARD AND OTHERS. This was a motion for a prohibition to the Native Land Court from proceeding ?in a partition of certain lands in which the plaintiffs were interested. Dir G. Hutchison appeared for the plaintiffs, and Mr Bell for the defendants. The application for a partition was made in September, 1883 ; the partition took place in this year. The Court made an aggregate allotment in favour of the defendant, James Smith, who claimed as thepurchaser of the shares of 18 of those mamed in the memorial of ownership. The transfer to Smith was not approved by the Court- before the partition, and the plaintiffs contended it w'as not even then approved. Dir Hutchison contended that the judgment of the Native Land Courthad proceeded solely on section 23 of the Native Land Court Act, 1886, and section 16 of the Native Land Court Act 1886 Amendment Act, 1888, which could have no application to the case, Smith having no legal transfer. He also objected that no certificate of a Trust Commissioner had been obtained. Dir Bell contended that the affidavits showed the Court had made >. inquiry into the . purchase, and approved lit on the application for partition, and Tthat it was impossible in face of the decided case to say this could not be done. No certificate of a Trust Commissioner was necessary in such a case : Hurrey v. Booth, N.Z/L.R., 3, S.C., 54. Section 16 of the Act of 1888 also entitled the defendant, Smith, claiming from persons holding under memorial of ownership. Judgment was reserved. IN RE THE LAND ACTS, EX PARTE DEAN. This was an appeal from a decision of the Land Board for the Wellington district that section 16 of the Land Act 1885 Amendment Act 1887, giving deferred payment selectors, who have completed their improvements, the right to pay up the balance of their purchase money and obtain.a Crown grant at any time, did not apply to holders of village settlement sections. Dir Brown for the appellant, Dir Bell for the Board. Richmond, J. : The argument of learned counsel has put me sufficiently in possession of the question to enable me to deal with it at cnce, as it is not a question on which reference to authority is possible. The Order-in-Council under which this allotment was sold is dated the Ist September, 1885. It is therefore prior to the passing of The Land Act of , that year. It was issued under the authority of the 20th and 21st sections of the Land Act 1877 Amendment Act 1879. By subs. 2of the 21st section the Governor is empowered to “appoint that any of the allotments shall be sold for cash immediately on purchase, or on deferred payments, subject to the conditions of the said Act,” i.e., the Act of 1877. Now the division of the Act of 1877 referring to deferred payments is Part 111. What the Governor is therefore empowered to do is to appoint that any of the allotments may be sold on deferred payments under Part 111. of the Act of 1877. That authority is properly followed by the Order-in-Council, clause 3 of which provides that the lands to be sold upon deferred payments are to be subject to the provisions relating to suburban lands of Part 111. of the Land Act 1877. By the 9th clause also the purchasers are required to fulfil the conditions prescribed by the Land Act 1877 aud the Land Act 1877 Amendment Act 1879, relating to land on deferred payments. It is not disputed that the effect of section 251 of the Act 1885 is to make the Order-in-Council, in relation to all subsequent transactione, operate as if it had referred to Part 111. of the Act of 1885. That being so I cannot evade the conclusion that a person bolding lands under these conditions is really a person holding such land under Part 111. of the Act of 1885. Dir Bell has argued, and I quite appreciate the argument, that holders of these village settlement sections take under the Order-in-Council, and not under the Act. But I think the proper answer to that has been given by Mr Brown, namely, the Governor cannot frame regulations for the sale of such lands on deferred payments except by declaring that they shall be sold subject to the deferred payment conditions prescribed by the Act. I think, therefore, that it is too subtle to say that a holder under a license to occupy, issued under these regulations, is not a holder under Part 111. of the Act of 1885. Consequently I think the appellant is entitled to the benefit of section 16 of the amending Act of 1887. Appeal, allowed, with costs L 7 7s. The Court adjourned to 10.30 next morning. ______