A MIXED SALE

New Zealand Times, Volume XXXIII, Issue 7978, 8 December 1911, Page 10

A MIXED SALE

WHAT WAS SOLD? COURT CLEARS HP THE CASE. Avas delivered by his Honor the Chief Justice (Sir Robci v Stout), 1 terday, in a complicated land case in* j volving a dispute us to whether an nn- j encumbeied property or the equity of redemption was <*old at a public auction. John Henry Taylor, of Muhunoa, Ohau, { fanner, was the plaintiff, and Walter] Fox Purkinsou and Hurry Alexander Foster Blyth, of Ataahau. Canterbury, farmers, were the defendant:*. Mr Martin Chapman, K.C., with him Mr G. H. Fell, appeared for the plaintiff; and Mr T. W. Stringer, K.C., of Christchurch, with him Mr M. S. Brown; for tho defendants. Plaintiff Taylor, in his statement of claim, set out that, prior to December 21st, 1910/ he .was the proprietor of 2335 acres and some odd perches in Wellington provincial district, part of tho Pukehou block, subject to three mortgages: (1) To John Roderick McDonald to secure £7753 18s; (2) to defendants, Parkinson and Blyth,-to secure £3453 19s 3d and interest; (3) to Dalgety and Co., which had since been released. The second mortgage, to Parkinson and Blyth, contained a power of .sale in the event of default, etc., and, Taylor making such default, defendants exercised this power of sale. In applying to the Registrar of tho Supremo Court at Wellington to conduce the sale, defendants estimated tho value of tho equity of redemption of the land at £2603, The land was duly put up to auction and bought by tho defendant Parkinson, subject to the first mortgage to. McDonald for £9337 9s 6d. This sale was subsequently confirmed by a contract signed by Parkinson and the auctioneer at tho sale. By tho sale and tho signing of tho contract, plaintiff contended, Parkinson became in equity the absolute owner of tho land, subje’ct. only to the prior memorandum of mortgage to McDonald; and defendants, as mortgagees, became entitled to receive th© sum of £9337 9s 6d. the purchasemoney for the equity of redemption, and to account to the plaintiff therefor, retaining thereout the amount owing on their mortgage,, and the expenses. After the sale th© defendant Parkinson disposed of the land by exchange with Robert Wynn Fleming, sheepfarmer. 'The only validity the exchange could have was by reason of tho valid sale to. Parkinson at auction. Tho true nature of the dealings with the land, was a sal© by auction to Parkinson and a resale to, or exchange with, Fleming. Plaintiff asked that it be declared that, by virtue of the sale, Parkinson became the purchaser of the land for the sum of £9337 9s 6d; that an account be taken of all sums paid or payable by the 'defendant© to the date of the sale to the first mortgagee and payable to tho defendants'by. virtue of their mortgage; that the registrar, ascertain tho other expenses deducibl© from the purchase 1 money, and that the balance with interest) be then paid to plaintiff. In a number of alternative causes or action plaintiff claimed to be entitled’to credit for £2609, the excess value fixed by the registrar. , . , _ . Tho defence was that, instead of purchasing the equity of redemption, the defendant Parkinson made a bid ot £t per acre for the 'property. ■ The auctioneer at the sal© asked for bias per acre, and stated that the amount of the mortgage to McDonald would be deducted from the price bid for the property. The purchaser would have to pay the balance of the price so bid and take over the property subject to the mortgage, it was alleged that it was by mistake that the amount of £3337 9s 6d was placed m the contract of sale as th© price at which tho equity of redemption had been purchased. Defendants were not aware of the effect of this contract of sale until they.applied to. the. registrar to execute a transfer of the land to them. Referring to this mistaken contract the learned judge .said: —-“I am of opinion that this was a statutory.sale,, and that Mr Perritt (the auctioneer) was acting tor the statutory officer who had to conclude tho sale, namely, the registrar, and that as acting for th© registrar there was a mistake made by him, and by 3lr Parkinson, and that relief can be ed in conseouence of such mistake. After reviewing the circumstances further his Honor said:—"lt is clear in.this case that the plaintiff had a right to consider that a sale was made, and had no opportunity granted to him of redemption after the sale. lam of. opinion that the: defendants cannot, having given the property to Fleming as if Parkinson had been the purchaser at tho sale, now turn round and say there was no sale, / and claim to make a sal© or rather an exchange by Parkinson and Blyth as if it was a sale under the mortgage. In fact there was an exchange by Parkinson, hot under the mortgage, but as a purchaser. In n/y opinion the position must be that the court must treat the sale to Parkinson as a sale at the amount that he stated to the registrar the property was valued at, namely, the som °f *E2600, and that the plaintiff is entitled to have an account taken ot the amount between himself and mortgagees on that, footing.” .