SUPREME COURT.—CIVIL SITTINGS.

Otago Daily Times, Issue 4661, 25 January 1877, Page 2

SUPREME COURT.—CIVIL SITTINGS.

.«. Wednesday, 24th January. (Before His Honour Mr Justice Williams ancta Special Jury.) ROBERTSON .V. D. M. ROSS AND JANE BOSS. This is an equity suit in which it is sought to - set aside a deed of conveyance'in connection /with ■ certain land at Anderson's Bay and.. Tomahawk, on the ground that the deed in question was obtained by defendants by means • of fraud.. : Mr Macassey, with him Mr W. D. Stewart, appears for plaintiff; Mr Garrick (Christchurch), with him Mr Stout, for the defendants. Mr Howorth watched the case cm behalf" of one of plaintiff's daughters, Mrs Miller. The following evidence was taken:— Margaret Robertson (cross-examined): I was mwried 11 years last' October. I have lived peaceably with my husband during that time. I was away from him once for two days when he was drinking too much. There was no anger about it. I thought it would put a stop to his drinking. That was about a month after Ross and his wife lett our house. I have always managed my husband's affairs and written his letters. Formerly I might have signed his letters, but since Ross was in Park and Curie's shop, I have always made him sign his own letters. I adopted that practice before the interview in the Glasgow Pie House. Before that time he sometimes refused to sign the letters I wrote. He never refused after that time. Any letters I wrote to Auckland were signed by him. There was no unfriendly feeJiug between my husband and myself on the day of the interview at the Glasgow Pie House. He told me he was going to meet Ross at the PieHouse to get his will signed. I was at the Pie House five or ten minutes before ■ they arrived there. 1 1 heard them, but I did not see them.'' I did .not put my ear to the key-hole when I heard them. . \ They did nob speak in an undertone. It was Ross's voice that I heard reading^ There was nothing said in my hearing about its being the same as the other deed. I knew what was in the formerdeed, because Mrs Inglis got a copy of the • deed from the' Registry office, and told me I had better take care of myself. The deed was read by Mrs Inglis's son in our presence. She - appeared angry about it. We did not say anything about laying our heads together to get rid of it' I was not angry when I went into the room at the Glasgow Pie House, where Ross, BagleT.and my husband were. I kepfc the account at tha Savings Bank in my own name. The largest amount deposited at one time was about L3OO. ' • The letter produced is very like my handwriting, but I did not write it. (Witness was examined respecting several letters, some of which she said were ia her writing, and some she thought were not.) As stated in oneletter,: there were family disturbances about theposition of affairs. , The sons and sons in-law were always telling me that they would take Ross to Jaw about the deed, and ruin him. I accordingly informed Ross in the letter. My sons and sons-in-law have not spcken to me about it'lately—not since that letter wat written. I have not given myself any trouble about the matter.. "I have not troubled Harrold about the matter, and have only spoken, to him on the subject once or twice. My husband, and i.ot myself, first sent to Messrs Stewart and Denniston about this action. 1 have gone to their office tyro or three times. Inglis never ,went with me to Stewart and Denniston's office. Inglis was at their office once at the same time as my husband and myself. I know Mr Hugh M'Lean. I never heard of any negotiations for the sale of part of the property to him or to Mr Neill.' Re-examined: The present action is brought entirely by my husband, and quite independent of his Eons or sons-in-law. The letter dated November 7th, Tuesday, was not written in answer to a letter. I never at any time had any interest, or expectant interest, in either the Anderson's Bay property, or the Tomahawk property. As far as I knew, the will drawn up by Clark was the last one executed by my ■ husband. William Christie stated : I am a clerk in the Registry of Deeds Office, and have been there some years. I know D. M. Ross. I remember receiving a document from him for registration. I - afterwards got from him a memo, stating the circumstances under which I registered it. I received the- document for registration on 29th May, 18G9. I procured the memo, relating to it from Ross several months after the registration. I did all ray grocer.y business with M'Farlane.- I was there in May, .and paid Ross my account. ■ After doing so, he said—"Would you oblige me, Mr Christie, by taking this deed to theRegistry Office, and having it registered." I said I would be happy to oblige. I saw it purported co be a deed of conveyance, and in every way a registrable deed, and I consequently agreed to register it. It was registered accordingly. In connection with my duties in the office, I had to search against this property. Some of those persons so searching were relatives of Ross, and apparently knew nothing about it. I thought there might be something • irregular, and therefore thought it desirable to get this memo, as a protection to myself. I received no annoyance whatever from any member ■ ot the family, and never maJe any statement - that I had received such annoyance. Cross-examined: Inglis searched at the Registry Office ; also, a person named Towse, with some meaibers of the family. Robertson also came once or twice. I showed him thisdeed, which seemed to be of paramount importance to him. I could not say positively, but I do not think I showed him any deed toMrs Miller. Inglis was not very angry, and did not make any statement to me. Margaret Napier stated: I live in Dunediu, and came out in the William Davie, in October, 1867, in the steerage. Ross came out at the same time in the steerage. He made my acquaintance o" the way out. I had no conversation with Ross about my relations here, but my husband might, as he came from the same place as Ross. After arriving, I lived at. Anderson's Bay with my husband for a fortnight. I afterwards went with my husband to DuneJin—where he was employed by Mr John Jones. I did not see Ross after leaving the ship until the second day my husband had been in Jones's employment. I asked Ross how hefound us out. He said Robert3on had been in M'Farlaue's shop and told him that I was a relative of his (Robertson'3). While Ross was there Mr and Mrs Robertson came in, and they all went away together. Ross called at our place several times after that. I was present at Ross's marriage. I think Ross called and told me he was going to get married. On the New Year's Day he did not see MissRobertson, and he reemed to be disappointed, and he asked me to tell her that he would like to see her. There was never any conversation between Ross and myself about the property. I was to try and', .forward the niatcb. if I could. Henry Howorth, stated: I am a barrister and solicitor practising in Dunefiin. In 1865I was a member of the firm of Howorth, Barton, and Howorth. At that time my firm acted as solicitors in some matters for Robertson, the plaintiff. We were employed to prepare a will and codicil for him, and I saw Robertson personalty. I produce the draft will, dated 17th August, 186?, ■ and the draft codicil 30th October, 1865. I received from Robertson the former will, dated Ist January, 1864. Alexander Inglis stated : I carry on business as a draper in Dunedin. lam a son in-law of plaintiff, and married his daughter Euphemia. II years ago. I went to England in 1868: I stayed there until 1870, Before I went home I never heard of Ross, the present; defendant. After my return, Ross visited my house. He was then married. I got very intimate with him through, his visiting at my house and my visiting him, and through his coming to my shop. He visited my house every second Sunday. I visited Ross on Sundays. Ross used to nave dinner at ray place. Front the first time I knew Ross he was always inciting me against Mrs Robertson. He said she had got a will which she carried about with, her, and which cut out all the family. He said it made all the property over to her. He was always saying the same thing. One Sunday after dinner he said he was going to tell me a secret, and that I must never say anythingabout it until the old man was dead. I agreed to that. He said he had cut out " old Mag '* (Mrs Robertson), and had not left her a copper, I said, " How did yau manage is ?" He said he told the old man (Robertson) that his boundaries were not correct, and that he (Ross} got all his papers from Robertson. After hegot the papers be said he went to Stamper, the solicitor, and told him that_ he had a brother who was going to give him a pro- ' perty, and that be was to make out a deed. That he got the deed from Stamper, anct

copied Ik himself. Robs then said, "Old Mag has got a will, but I have got a deed. J. •aaidifcwas very wrong to do that—that Mrs Robertson had a right to a living out of the property, and that he should give back the property to old Robertson. I said be had robbed the family too, and he said he wou.d give the family penny about when the old man died. I suggested that he should give the family penny about; or rather, I wanted him to make out a deed giving the family—Mrs Robertson included—penny about when the old man died. He declined to do that. After I said " You have robbed the family too,' he •Bftid he would not take a farthing from the family, but would give them penny about. I wanted him to make a deed whicli was to lay ever until the old man died; but he refused to do that He was in my house after that I remonstrated with him several times on the street, but he always declined to make any covenant or agreement, or to do anything m the matter. I never asked Eoi>s in my life for ten acres of Robertson's land. I do not remember going to the Registry Office. I never went there. 1 first saw this cepy of the deed at home, after I told my wife. 1 have been on the Anderson's Bay property four times. Cross examined: When the deed was discovered, Ross came to my shop and eaid I had deceived him. I said I had a right to defend the family, my wife being a member of it. He .then left the shop. After this, Ross did not call at my house. I would not have allowed him. The interviews in the street respecting the deed were before he came to me in the Bhop, and also before I told my wife of the will. I was never very int;mate with Robertson. I was not one of his favourites. _He had no favourite among his first wife's family. He paid more attention to the youngest girl.' He never communicated tome his intentions regardingher. Ross sometimes worked me up and excited me against the old woman. Harrison And myself never laid our heads together about bringing this action. I said myself several times that I would spend LIOOO after the old man, died. Thomas Robertson, junior, also said that he would be willing to spend something in that way. Mrs Robertson never said anything of that kind. Mrs Robertson and myself have talked about the matter, but never talked about setting the deed aside. After I cut Ross I said that I would advance LIOOO to the heir-at-law to get back the property. On some occesions I went to Stewart and Dsnniston'a office with Mr and Mrs Robertson. I only went there when asked by Mr Robertson, and I do not remember going with Mrs Robertson alone. I have not guaranteed the costs of this action, I was never asked to do so, and am not responsible for a farthing in the action. Robertson never told me he was going to make provision for the youngest daughter. I never knew that Robertson had a nice ten acre section. I never asked Ross or anybody else for a particular ten-acre section. I never wanted any of it I would not touch it now if it were offered to me. I have done pretty well in business. I did not want penny about for my wife. She was willing to forego her share, as her sisters wanted it more. I did not say this to Ross. I did not tell Ross that I considered myself relieved of my pledge of secrecy. Thomas Robertson, junior, stated: lam the eldest son of the plaintiff. I remember speaking to Ross about a deed of conveyance from the old man to him of some property in Anderson's Bay. The first time I heard about it was in Princes street, near Dowling street steps. I met Ross there and asked him if it •was true that the old man had conveyed the Anderson's Bay property to him. He_ said "Yes." He abked if I met the old man in the street—that he had just left him (Ross)—and that he w&Dted him (Koss) to convey a dowry to the old woman —the present Mrs Robertson. Ross said, "But I will not do it They had better take care of themselves or I will1 ruin them. The^ old n:an has been going abcut the country spying I have forged a will (or a deed), and I will bring him up for that, if for nothing else." That ■was.all that passed. I then went up to Mrs Inglis. I saw Ross two or three days afterwards at the corner of Rattray and Princes streets, along with Robertson and, I think, Swire. The three went to the Oriental Hotel, and into a room, whic'i they locked. I went to Ross's house about an hour afterwards. I do not remember what I said. He said to me, " I have done him." I said I was going home, and he accompanied me to the Gas Works. He there told me that he intended to give us all a share of the property after the old man's death. He said he would give me the Tomahawk property, which he said would suit me. That wad all that took place. Cross-examined: My father was not with me at the Gas Works, or at Ross's house. He went home with his wife. The Tomahawk property would have satisfied me. I was not anxious about it, as I thought I had enough property. I might have told my father that Ross promised me the Tomahawk property. The old man never promised mo the Tomahawk property, but frcm a letter he sent me befors I came to the Colony I understood he was to give me some land. Simpson gave my father money to buy land for mo, and I understood the Tomahawk property was mine by right Thomas Harrison stated: lam a son-in-law of the plaintiff, I have some land leased from Robertson, and have to run. on my land six head of his cattle during the year. I remember having some conversation with Ross when he was in MTarlane'a about cattle. He said, " Harrison, if I were in yemr boots I would take all the cattle I could from the old man, and if anything happened to him—if he died— you could (or I would) stick to every damned one of them." I set him down as something not good, and I spoke to him very seldom afterwards. I had a lease, but lost the run of it somehow, and found out Ross had it. Cross-examined: I have not taken part with any members of .the first family in bringing this action. I never dreamt of such a thing. I I have had conversations with Robertson, and he has asked me about Ross. I told him he ought to bring Ross up and have the case tried. But he said he did not like to, as Ross was a son-in-law. I went to Stewart and Denniston's office, and I went to Mr Stout's office about this very case years ago, and he got paid for his advice. He told us what it would cost. That was about five years ago. Mary Ann Wilson, grand-daughter of plaintiff, stated: I remember Ross's marriage. I was at Robertson's house one day before the marriage and two days after. Robertson was there. During all that time Robertson was at home, and did not go to Dunediu. Christina Dempster: I know Mr and Mrs Robertson, of Anderson's Bay. I am Mrs Robertson's siater. I remember Ross's marriage. Robertson was at his hou^e all day before the marriage, and did not go to Dunedin. Mr Macassey said that, before closing the plaintiff's case he wished to apply for an amendment of the replication to defendant's pleas, as, at an earlier period, he had intimated he would probably do. The original replication was as follows :— As to so much of the pleas of the defendants' a* denies the allegations contained in tho plaintiff's d.s claration, the plaintiff joins issue thereon. As to the residue of the defendants' pleas, the plaintiff says that he denies all the material allegations therein contained ; and for a further replication to sue') part of defendants' pleas, the plaintiff says:—That the plaintiff was in i need to sign the several deeds and documents in tho said pleas set out by the defendant David Mitchell Ross friudulently and falsely representing to the plaintiff that the said deed-, and documents were for the purpose of conveying to and vesting in the defendant, David Mitchell Ross, an acre of land belonging to the plaintiff, for the purpusa of erecting thereon a house for ihe residence of the said defendants, and the plaintiff signed the taid deeds and documents without any knowledge of the true contents <.nd effects thereof respectively. The plaintiff wus induced by 'he defendant., David Mitchell hoss, to sign tho said deeds and documents when the pliintiff was in a state of intoxication, and under the influence ol liquor, and thereby unable to comprehend the meaning or effect of the said deeds and clo< uments, of all which premises the defendant, David Mitchell Koss, ■was aware. It wfs now proposed to substitute the following for all that part of the original replication after and including the words: "That the plaintiff was induced to sign" : — That the memo, of agreement, and the several deeds mentioned and set forth in the defendants' pleas, were made, signed, and executed without consideration, as between the plaintiff and defendant, or any other person or persons. That the plaintiff was, at the times of «uch mulling, signing, and executing, as aforesaid, an illiterate person, and unable to read or write beyond aigninu'l is own name, and lie was at the time aforesaid fiver 70 yea sl f age. That plaintiff had no legal or professional advitc aiding or assisting- him in connection with the memo, ol agreement and deeds, or any of them, whereas the defendant, David Mitchell Rose, had himself been then recently trained for during a period of five year* in the ofiice of a conveyancer ■or solicitor in Scotland, and either himself prepared the moino. and deeds referred to, or had them prepared under his own sole instructions ar-.d supervision. That the plaintiff's signature <to, and execution of, the eaid memo, and deeds was and were given and made in mistake on his part, and without knowledge of the .contents, or the true meaning and effect thereof, and mndcr the impre3son that suoh contents, and the meaning and effect thereof, were .materially different from the actual purpose of the tenna and expressions employed, lihat the signature and execution of the jflaintiff as aforoaaid was and were .dishonestly, improperly, and.fraudulently procured by the defendant, ihuvid Mitchell Rors. under the falseiicetencemado by ixm.to the plaintiff, fliat he (the plaintiff) would, by suoh signature and .execution (1), be giving effect to his own wishes regarding the disposition.of his estate ; (2) be conveying tO'tfcc defendant, Jan« tKoss, one acre of land, for the purpose of the dcfendanteirssiding and building thereon; and (3) be securing do another daughter of the pluinfctfi. Mrs Miller, a separate estate in a parcel of land, contciiii"? 10 acres or thereabout!), and also a separate property or intero t in certain cattle, chatteJe, and other personal property. That, upon the plaintiff discovering the value aivKoffect r.f the said memo, and deeds, ie refused to be bound by the aame, and UiO defendants had due notice ,oi the plaintiff's intentien to repudiate tho same. The application was resisted by defendants' counsel, and His Honour said he would give his decision on the following day. Tho Court then adjourned till 10 o'clock next 4ay.