SUPREME COURT—IN BANCO.

New Zealand Times, Volume XXXIV, Issue 5561, 24 January 1879, Page 3

SUPREME COURT—IN BANCO.

Thursday, 23rd January. (Before his Honor the Chief Justice) NATHAN V. TURNBULL. His Honor delivered judgment as follows; This was a demurrer to a declaration for the specific performance of a covenant by the lessor, contained in a lease to sell and convey the demised premises upon notice of desire to purchase, &c. The action was not by the lessee, but one claiming as assignee by deed. The demurrer raised two questions—first, whether the plaintiff was assignee of the right to elect to purchase, and whether the notice of election had been given to the plaintiff so as to satisfy the covenant, and be as to the notice a sufficient performance of the condition precedent. The averment in the declaration, relied upon by the plaintiff as showing him to have a right to make the election, is that the lessee conveyed, assured, and assigned to the plaintiff “ all his estate and interest in all the land demised.” It was objected by the defendant that the right created by the covenant was neither an estate nor an interest in the land. No doubt the right is not “ an estate,” but the question is whether it is not sufficiently described as an “interest” in the land. The term “interest,” when used in such a connection, has no technical or definite meaning ; but the real ground of the objection is that though the term “ interest ” might have been sufficient to describe the right in question, yet it is not an interest in the laud, but only concerning or relating to the land. I think that the expression, though by no means well chosen (if intended as an averment of the assignment merely of the right to elect to purchase), is sufficient for the purposes of this demurrer. It is I think to be collected from the terms of the covenant that it was not to be collateral to and independent of the lease; the provision as to payment of the rent shows this. In Green v. Lowe, 22 Beavan, the Master of the Rolls considered that notwithstanding that the right to the lease had been forfeited, the intended lessee had a right to the specific performance of the stipulation for an election to purchase, but this decision was founded on the terms of the stipulation. I also think that this covenant, like a covenant to renew at the election of the tenant or his assignees, runs with the land, though in its nature indivisible; and that the assignee of all the lessee’s interest in the land has a right to a performance of the covenant to purchase, even though the assignment has not expressly assigned the right to elect. I think that the lessee could not separate the right to elect from the land, inasmuch as a stranger could not perform the condition of paying the rent ; that could be performed only by the lessee, or a person liable as assignee of the term. I think that the lessor covenants with the lessee and his assigns of the lease, and not with the assigns of the benefit of the covenant as such. As to the second objection, it seems to me that as the plaintiff avers that he served tho notice “ on the plaintiff,” that must be sufficient, though it is averred that it was served on him “ through his agent.” If the service was on one not authorised to accept service, the service was not on the plaintiff; if it was on one so authorised, then it was service on the plaintiff. I disregard the averments in the 10th paragraph, because they speak of the t ; me present at the commencement of the action, and not of the time of the service of the notice. The demurrer must be overruled, with costs. Mr. Travers, who appeared in support of the demurrer, obtained leave to appeal on the usual terms. O’NEILL V. BROWN. Application for a rule nisi calling upon plaintiff to show cause why a new trial should not be granted. Mr. Buckley intimated that he did not wish to proceed in this matter. SMITH V. GILMER. Postponed till after the vacation. WILTON V. KILMINSTER. Mr. Gordon Allan for plaintiff, and Mr. Travers for the defendant. This was an action the facts of which had been tried before his Honor without a jury, and had reference to a dispute in the title to certain laud in the vicinity of Wadestovvn. Mr. Travers intimated that he would not oppose a verdict for £2O, the amount sued for as rent. A verdict for £2O was accordingly entered. JOHNSTON V. O’CONOR, EXPABTB O’CONOR. Mr. Buckley applied for an order maldng submission to arbitration a rule of Court.— Granted. BARLOW V. NICHOLSON. It appeared that some time since Barlow agreed to lend Maclean £l6O at a certain rate of interest. Maclean deposited the money with Nicholson as a guarantee of his (Maclean’s) fidelity, honesty, and sobriety, obtaining a receipt for the money as coming direct from Barlow. Nicholson’s receipt for the money was given to Barlow, and the question arose whether by accepting it without objection, Barlow had not ratified and adopted the transaction, and could recover from Nicholson only. It was contended he had ratified and adopted the act of an agent, and that the privity between Barlow and Nicholson exonerated Maclean from liability to Barlow. At the trial a nonsuit was granted, on the ground that there was no evidence of a contract between plaintiff and defendant, but evidence only of a loan from Barlow to Maclean, or a deposit by Maclean with Nicholson of the loan. Mr. Ollivier obtained a rule nisi to set aside the nonsuit; and Mr. Travers, instructed by Mi 1 . Quick, now showed cause against the rule; Mr. Ollivier in support of the rule. MACLEAN T. NICHOLSON. By consent to stand over till next sitting in banco. WELLINGTON CORPORATION V, PORT. By consent to stand over till next sitting in banco. GEESE V. TAYLOR AND OTHERS. Mr. Hutchison moved, on behalf of the plaintiff, for a decree for a re-conveyance of certain land mortgaged by Andrew Green deceased (whose trustee and executor tho plaintiff is), to the defendants, and for an account of the proceeds of the property dealt with by them. Mr. Travers appeared for the defendants, to oppose the decree. The argument of the decree involved questions as to the avoidance of the contracts of infants, and as to opening accounts after the lapse of years. On conclusion of the arguments the Court reserved judgment. The Court then adjourned till next day.