SUPREME COURT.-IN BANCO

Otago Daily Times, Issue 3861, 2 July 1874, Page 3

SUPREME COURT.-IN BANCO

Wednesday, Ist July.

(Before His Honour Mr Justice Chapman.) Jure DEED OF MORTGAGE BETWEEN MR M,

HOLMES AND SIR J. Y. SIMPSON,

In the matter of a deed of mortgage between Mathew Holmes, of Dunedin, aud Sir James Young Simpson, Bart., of. Edinburgh ; and in the matter of the Trustees Act, 1850.

His Honour gave judgment in this case as follows : —

This is a petition by the mortgagor, seeking to have the lands comprised m a deed or mortgage between himself and the mortgagee, Sir Jamts Young Simpson, Bart., and which is now vested either in the trustees under the will of Sir J. Simpson, since deceased, or in his heir-at-law, re-vested in the petitioner —the mortgagor discharged from all principal money aud interest.

The principal and interest have been duly paid, and nothing remains to be done but to reconvey the mortgaged property to the mortgagor. All persons representing the mortgagee reside in Scotland, and the only question is, who should be directed, to convey ; or rather, they being absent, in whose name or names the order should be made— that is, whether for all "the estate of ihc general devisees," or for " the estate of the heir-at-law in t ..e mortgaged property."

In the first place there is a general devise: does that include the mortgaged property ? That must depend on.the intention of the testator, Sir James Young Simpson. By words of general devise trust estates will pass, and also estates held by the testator as mortgagee —provided the subsequent dispositions of the propeity do not evince a con trary intention. Ido not think that any inference can be drawn from the power of sale given to the devisees and trustees by the testator, because there is the usual power of sale, in case of default, in the mortgage deed, aud the giving of such power by the testator effects no more than the deed alone would do in case of default rendei'ing a sale necessary. It cannot be construed as a power of sale in pursuance of the trusts of the will, for without default no such power could have been exercised. ■ :; '■■:"•

But there are other "dispositions, of the property which seem to me to keep the dry legal estate, after payment' or. the mortgage money- out of the general devisees, and bring the case within the principles enunciated'by Vice-Chancellor Alalins in Martin v. Lcbces'on, 9, Equity 'C.ises, 5G3 - indeed, , I think this case is stronger in favour of the conclusion that the legal estate passed to the heir of the mortgagee, thau the cited case. In that case there was a general devise and bequest, and then came a disposition of the property, and division thereof, which, in the opinion of the Vice-Chancellor, showed conclusively that the testatrix could only mean to dispose of and divide between tha daughteraproperly, in which she was beneficially interested ; in other words, that it could not extend to the legal estate, which she could not dispose of, except in exceeding the power of sale in the mortgage deed. Here the exercise of the power of sale does not come into consideration, as the mortgage money has been paid, and the only question is to the barren or as it is sometimes called the dry legal estate. In the cited case default had been made. The mortgaged property was put up for sale and sold, and the purchaser required that the general devisees should join in the conveyance. It was held that the legal estate passed to the heir-at-law, and that the purchaser was bound to be satisfied with a conveyance by him. The words used in the general devise were sufficient (the V. C. thought) to pass the legal estate in fee, provided the trusts and purposes were not inconsistent with that view. But the V. 0. considered that the trusts or purposes mentioned by the testatrix clearly showed that the testator intended not to give ,the dry legstl estate, but only that of which she was the beneficial owner. I think that is the case here. AH the provisions as to the disposition of the property, real and personal, ,can only apply to the property of which Sir James Young Simpson was t c beneficial owner at the time of his death; and that view was not allowed by the fact that the property was sold and the mortgage money secured, with the possibility of a balauce being payable to the mortgagor; but here the mortgage money being paid, the " dry legal estate ". stands more completely alone than in the cited case. If. therefore, default; had been made and the property had been sold,' the purchaser would have been bound to accept aconvej ance by the heir-at-law. If the trustees and devisees were svithiu the jurisdiction, Mr Holmss, on payment of the money secured by the mortgage, would have been bound to accept a reconveyance by the heir-at-law ; and therefore the order asked for will be to revest the property in the petitioner, fixed and discharged; &c, for all the estate of Sir Walter Grindly Simpson, as heir-at-law, &c. . ;- ■■' ; ■ ROSS v. reith; -•••- \ '- ;.■ Rule nisi for a new trial obtained' by the plaintiff upon the grounds :—That findings of the Jury upon the fourth and ninth issues of the first set of issues, and on the fifth, sixth, seventh, eighth,.and twelfth issues of the second set, are against the weight of evidence. 2. That the findings upon the whole records are inconsistent and repugnant. 3. That the lcariif d Judge misdirected the Jury by not directing a verdict for the plaintiff on the sixth issue of the first set and the fifth, sixth, seventh, eighth, and twelfth issues of the second set. 4. That the damages are excessively small. The rule was. also to show cause why judgment should not be entered up for the plaintiff notwithstanding the ye. diet on the seconi and third p'.eSs, upon the grounds :—l. Tuat the custom allegsd in th 3 second plea was unreasf n ible and inconsistent with the agreement between the parties. 2. That it does not appear from the third plea that the plaintiff: ever did appoint J. B. Hotson clerk of the w< rks. 3. That it does not appear that he ever was so appointed. 4. That it is nob alle^wl in the third plea that it was the duty of the rla'nj tiff to appoint a clerk of the works.

Mr Maca sey and Mr Steward, ft-r the defendaois, showed cause. Mr. Stout, for tbe pontiff, supported the rule.

Mr Maca-.sey,. ;as. to the. verdict being against the weight of evidence, cited Owston v. Mullen, 4, W., W., and a'B., Law, 36. There are five other cases collected under tins head, in. which a uniform judgment was given for the purpo c of settling the practice as to giving new trials on this ground. There was no wrongful discharge. The custom was proved. There was "no waiver of the defendants' right to discharge the plaintiff for insisting on the appointment of Hotson. The twelfth issue as to waiver is wholly immaterial. The Court will not grant a new trial for a wrong finding upon an immaterial issue. As to the issues btin£ repugnant, this was fully argued at the last sitting of the Court. Mere inconsistency is no ground. The fourth ground is that the damages are excessively small. If the plaintiff was entitled to a verdict, this is so. But the verdict is really for the defendants. The second branch of the rule relates to the custom, and the question is whether or not the custom is reasonable.—R. G. Rule, 361. J f the pleadings are defective, the Court may amend if the Court sees that the evidence entitle-) the party to such relief.— Bailey v. Kell, 4, Brig., N.C., shows that if there was any one good ground for dismissal, the defendant may take advantage of it.— Cornhth v. Forman, Mac., IN". Z. Reps. No costs are giv7en on motion in arrest of judgment. As to the inconsistency of the custom with the contract, Hutchinson v. TaCham, L.R., 8, C.P., 487., 42, L J., C.P., 260 ; Humphrey v. Dale, 7, E. and 8., 266, Taylor on Evidence, sec. 1076 ; Parker v. Ibbetson, 27, L.J., 0.P., 236 ; Grant v. Maddon, 15. M. and W., 737. As to the reasonableness ot thecustom, Paxton v. Courtney, 2, F. and!?., 181. Itisnotsuggested that Hotson was ever appointed. The defendants say they took care he should not be appointed, tut the plaintiff insisted on forcing him on them. Supposing a verdict stands for 40s, the Court ought not to have a certificate for costs under the Resident Magistrates | Act, 1867. Possibly it may not be necessary. The cases of Emtru v. Burn*, 7, Mrs. P., C, 105 ; Parr v. SW>e.rap, 32, L.J., Ex. 150; Beard v. Perry, 31, L.T., Q 8., ISO, showed that the verdict must be for a greater sum than is recoverable in the Magistrate's

Court. If a certificate is needed, the Court, upon a view of tLe whole facts, will not grant one.

Mr Stewart followed on the same side. He cited Empson v. Fairfax, 8, Ad. and E., 296, as to the inconsistency of the findings. Fordv. Lace//, 30, L J., Ex., 35, shows that non-direction, where it does Dot occasion a verdict against evidence, is not a ground for a new trial. Where the damages are under £20, the Court will not interfere and give a new trial.— Hawkins v. Alder, 18, C.8., C4O As to the smallaess of the damages — Man niwj v. Underwood, Me.L. and J., 2b'6. As to the alleged inconsistency between: the custom and the agreement—Leakeon Conic, 110, 111. Upon the question of costs, he cited— Hatch v. Lewis, 31, L.J., Ex., 26; Holborn v. Jonex, 38, L.T., C.P., 22. Upon the question of custom, he further mentioned Patterson v. Quick, tried in'this Court.

Mr Strat supported the rule. He commented first on thb question of costs. Emery v. Bruce is not in point. The cases cited in the Otago and tiouthlaml Investment Go. v. Burnn apply here.— Brown v. White. As to the verdict being against the weight of evidence, there was not a scintilla of evidence. If the sixth issue is immaterial, the wrong finding of it is of no moment. The third plea means that the defendants were the proper persons to appoint Hotson. It does not mean that Ross insisted that he (Ross) should appoint Hotson. Gibbie v. M 'Meeken, 2, L.R., P. 0., 317, shows the grounds of a new trial. As to the repugnance of the findings, the learned counsel referred to the cases cited by him on the argument of the former rule.— Daoin v. Hardy. 6, B. and C , 225. As to the damages being too small.—ln Stamper v. Wilson, a new trial was ordered on the grounds that the amount found was too small.— Sprtiiyctt v. Balls, 7, B. aud S., 477.

The. learned counsel had not concluded when the Court adjourned until 11 o'clock this day (Thursday).