SET ASIDE

New Zealand Times, Volume XXXVIII, Issue 8653, 11 February 1914, Page 4

SET ASIDE

A MARRIAGE SETTLEMENT ACTION BROUGHT BY OFFICIAL ASSIGNEE. His Honour tho Chief Justice delivered judgment yesterday in the 'case in which the Official Assignee in |the estate of James White Harding, proceeded against the latter’s wife, Violet S. Harding, claiming that certain property transferred to her by her husband, 'in pursuance of articles or agreement entered into between them prior to marriage, should be sot aside, declared fraudulent and void, and that she should be ordered to transfer tho property to the plaintiff. The questions were —(1) ‘Whether the plaintiff had shown that there was an intention of J.‘W. Harding to defraud his creditors, and (2) whether the defendant was identified with such a fraud.

Harding was in business in a large way as a farmer, stock-buyer, and dealer in frozen meat. He was a widower with two children, and tho evidence began with a visit he paid to Auckland in the end of 1910. “Hp seems to have gone to Auckland on a matrimonial mission,” said His Honour. “Tho lady ho went to visit married, or lhad married, another. This lady had been his housekeeper and had borne a child to him. There is no clear evidence as to whether she was married when he says ho visited her' in the end of 1910. Judging by tho evidence of tho defendant, 1 should imagine she had already been married, and that his visit to her wan after her marriage. If that is so, his statement that ho went to ask her to marry him is incorrect.” Harding met his present wife in Auckland at the.end of 1910. and they were married on November 4th, 1911. His Honour remarked that the evidence given by them before the Official Assignee at Hawera, and the evidence given in the Supreme Court did not wholly agree. Harding left in May, 1911, for Brisbane, started a business there, and Mrs Harding accompanied him. In Brisbane ho was informed that there had been a loss of £3841 on seven months’ transactions. As tho price of frozen beef was low and the value of the beef he had forwarded to England was not sufficient to repay the advances made against his shipments, he returned to Now Zealand, and ho was alarmed at the position. “If I were to accept the statement of Mrs Harding,” said His Honour, “ho was continually asking her to marry, and after her brother arrived im Brisbane she was making a demand for a settlement oh her of property. Now at this time she says she was led to believe ho was a wealthy man. She must have known he had an extensive business. She. discovered she was enceinte whilst she was in Brisbane, and she and her husband ask the Court to believe that she, , a young woman in that condition; living with -r man she thought wealthy, rejected; marriage unless a settlement was: mado on her. I cannot believe she took up such an attitude.” NO BASIS IN SETTLEMENT. Continuing, His Honour said that the law in cases of this kind was clear. This was not a voluntary {jift; it was based oft a good consideration, that of marriage. Tho fact even that a husband was at the time of his making an ante-nuptial settlement, in debt, and that his intended wife knew he was embarrassed, was not of itself sufficient to make such a settlement fraudulent and void. Even if there were false recitals in the deed of settlement to her knowledge that would not invalidate the transaction. There 1 must be some evidence of fraud, and both must have concurred in the fraud. His Honour was of opinion, however, that where there had been for some time illicit relations between the parties, the proving of a good consideration and the absence of fraud was beset -with some difficulty. In all tho cases he could find and all those cited where there had been such aconnection, the settlement was not up- ' held. Harding’s relationship with another woman and his pretence that he was willing to marry her showed that ho did not seem anxious to marry any , one who was his mistress. It did not appear to His Honour, after carefully considering all tho facts, that he could find that tho marriage was arranged ; on a basis of settlement. In his opinion Mrs Harding would have married ; Harding without any settlement, and it seemed to him that Harding would not have married her hut for the fact that he was in financial difficulty and wished to try and save the property that _should have gone to his creditors for hi s own purposes. Tho settlement did not provide for children. If Harding had been willing to marry his wife in June the marriage would have been carried out without any settlement; JUDGMENT FOE PLAINTIFF. Judgment was, therefore, given for the plaintiff, with costs as on a claim for £2OOO, with fee for second counsel according to scale, and for three days extra at £l3 15s a day, witnesses’ expenses and disbursements and any interlocutory matters and costs that were reserved. The minutes of the decree would have to be drawn np and approved. / At the hearing, Mr C. P. Skerrett, K.C., and Mr Welsh, appeared for the plaintiff, Sir John Findlay, K.C., Mr and Mr Sim for the defendant.