A LAND TRANSACTION

Otago Daily Times, Issue 14441, 6 February 1909, Page 14

A LAND TRANSACTION

ALLAX v. STANSriKLD. In tho Supreme Court yeet'Orday Mr .luM.ico Williams gave judgment iu the case of Allan v. Statriiieki (a uiaim for the riifht. 10 use certain Jund in the Itiilaiuii district. Mr J. K Callan appeatwl for the plaintilV, Elicn Allan, wife of Malcolm Allan, of Hatanui. farmer; Mr John Mac-('i-cgor for the defendant, Kobert- B;ijr of Ratanui, fanner and storekeeper.

llis Honor's judgment- was in the following termstin tfjinuary 5, 1887, the doieiuiaiu made an application u?nler 'Ohe Ij»nd Act. for 100 ac-ros ol land undflr the hoiti'.vslrad sjstoin. With that j application lie -lodged a declaral-ion in (he i form presetiLkhl by the regulations uiukn' | i'lio fiand Aet, IK5,' thai ho was tnaliiri;,' 1 tlio selection for and his castor, j Klloii Stansfie'd, tho present plaintiff. This 1 ajiplipation was unsuccessful. Tiien on tho J Oth •liinuiiry lie nunle a it|pp; ii e i.'on | for 10 a'-res, part of Bortion 22. kiml (|uito I (1 is I i not from lhat which he had originaliy iipplied for. Ue lodged no fresh declaration, hut. the r.und Ikiard atkichul his original dcolar.uit,n 10 tho new application, anil some per.-on tonnocled w.ith the hoard struck out in pencil the name of iiis sister. The land wii.s then first clurw hmd. and the maximum quantity any one person oould take up 011 hi,> own accoutd was 50 acres. lie (ould uoi, tlierefoiv. have taken up the original ICO acres wilhoin his si-tcr, liiii he could have taken up (ha 'second niipliciit.ion for tho 40 acres (In January i. he was declared the selector of the 40 (teres. Th"u iu Match, 1887, a .Mis llolihs, who lied Inken up a liouir.sfe.ad allotment of 50 acre> adjoining the 40 acri.s of the defend,'mi. \va~ unahie to fulfil the (omli'iions. t)n March 2. 1857. .Mr llarhnv, the sidesman of i.lm hoard, wrote to the defendant informing him of this. 'I'lie Idler continues an follows:-.-',-V> you failed to Lfoi tln> (piantiiy of land you applied for, and as the 40 aercs you u hfniitetl adjoins this section, ihe Commissioner of Crown Lands coiw;nls to lot you take up .Mrs Ilohhs s allotment on your paying tho survey fees. £8 15s. Will you pleas*' reply without d'.day';' In. consetpience of tliat i lelf.er the defendant says he applied for thn land. Mc idttnod nolhing fnrllier and made no fresh declar.'tion, liul the ajiplica!i«>n for the 40 acres was anir itdr<! in rod ink in Mr Harlow's handwriting, by insert, ins an add'iiona! 50 acres and maiiint; tho , total 90 aci'tv. (In t.l\o applitaiion llw-re was also a minute in red ink in .Mr Harlow's hundwi ii to 1 ho same efo et as Mr Ilarlow's leiior. which viu si«n<-(| (jy the t irief CiTiiumssioner and datc<l March 15: The defendant paid I,ho survey foes, and the laud was mirveved, bit! turned out on survey 'to l.e IV7 acres on!v. The maximum of second class land aiiv 0110 person could take up is 75 acres.' Whether, therefore. 1 lie land was troaledius first or setond class la id, the (Wondr.nt had applied for and the koartl had uraiitod to him mr.ro laud than the law authorised him to appiv for or the l.oard to grant. un!o.-r, ho v.as applying on lwhalf of some oilier motniwr of llifi family or llou.-r.IIOM as well as on hi? own behalf. At this timo, however, tip land was treated by the Ixranl as first e!as< land. It is obvious from whal took .nlicc that Uic itifi'.iiiion of all pa.vtic.s W .| S that the application making up liio 90 acre? wits 111 Mills! it ill ion for tho oricin-d a,->pl ieatioti for tho 100 acres for which the <k-foii<l;:-nt had Uillovted unsticcivs'ully. 'ilnui ill May. 183 c. Moloney, a failed to fulfil tlie^ conditions 0 f his holdinv. mill Ih.T father of deiend.ini. cot in? 110 ootdi! an bis wrote to the Land "lioairl askiii" tlia', Molon-'y'.i lio-nse should bo can' ceiled and i!v land divii,!«l. ; ,.s 5 ; ,„,„ of his n"a'hlniti>, w«T» of He rii , vs (lelt.-r, .Inly 10. 1883) that his son ha- c.nlv O's acres n, placo of tlio 100 acros for which ho apphotl. As the result of this aopfe,. tion, section 20, containing 69a lr 9p was alotod to .ilio defemlant by Iho hnrd Although all tlio laud was in the first inSKinco tr-eated a< fi.st hind, the lx>ard afterwards Ireatetl if „, com | ]. )n( | ami the additional area was allotted lo n.h>'defciKlant on tl,o 0 f it . ; se( . om , claw land. Here, again, Iho applieation , 1 '? ili,o: l'lM'toftbtsaiklition.ilureaaro loloraljlo to tlio original applkation for 100 iwrcs. and are fo r t |, o pm , K , f( , of flll(ii | i , h " r,? ipiantily of 1 second { - ,n,K '- 's O'.ily lwaiM* ill iho fij^r instance tin defendant r.ppliod for lf;0 a-res aii'l lodged with 11 a declaration lhat h" wa< ffllftim' it on bellillf of himself and bis sister 1 ,iat 1,,. w:is or coidd have, beoti ado .ed the land h« now holds. The docm am bawd his claim to tho additional land on tin- sromid that he was oiil,;t.!e<l ro i.U «ioH';- hv of his on-ioirai aT>nl.ication, and the deelaration thai he w«s Belcctmjr the hind on his sister's l>ehalf a:; Wll as l»« own accompanied rlttii application. J ho dofetidani iiutst have contemplated, wlwn lie applied for a<hlii,ional land ■•at l ie board would act „u the faith of bat declaration, as in fac ,hey did act. li s sister would have had a risjht bersll 0 take np th.'> (puiutitv of laud allowed by l "s act to one The dofeudairf. could only himself take ~p t-he qunnh-'tv allowed to olio perron. If i|,e took up k demb e <|uanmy of httid he iiutst 0 f uflecs--itv have taken half of it on Mia.|f 0 r .some other person, an<l having exercised tJi«ri<nit to toko such half on hob.,if 0 [ Ulßt H „,: on and not on his o-wn I ; ehali. Tho right hero wat. evera^ l by the d-efemlant on behalf • Mutei, the plaintiff. In n) y opinions she heeamo, by virtue of what took place. Ciiti .led equally with the ])la.inti,T to the ami a otrfed the board, and when the tifF ] t 97 a Cro , VJ , ot (he Kind in his own mime lie became for ue,- ot an undivided half sliaie in it. she thus having etpiitablo half ■ r s 4 "', v with the r'fl i 11 " obtained half of il ,° land by exercose of his sixer's ri"ht and lie is. I t.hink. sntie position as i.o had purchased the half with his sistei s lnoney. The ( p, w tion then dotHv.'VTf' • tJ ," > r ,la " ,tifi ' ] ' as I>eco,lle tm " ■ ly 1c,1,50 " of i'io statutes of limitat lon, or by acquieaouce. li. ]>Ki.niritl \\;io 18 voai-s old' in 1887 when the hind w.a.3 first, taken up. ]t clear thai, the statnlorv ])eriod 0 f 20 }«»«. even ,f ,t he-an to run whoii. ?h« altained 21 had not expired at the. time of aujtoit broiiglit. Has there then W„ an uicipucvionce on her part sufliciont, accoroing to tlio pnnciplos adopted bv Kiurts ol equity, lo prevent her from now aflserung her right lo Iho land? The defomktnl, went 0:1 the iand wdie.ll it was first taken up, and the plaintiff joined him there ill iho early part of 1888, iuK l remained there with him until the end of 1891, working 011 tlm land ami assisting hor Ijrctiior to cloar it. Xo mot!<?v was made out of the laud. She savs she understood from her father that the sections belonged to her brother and herself, but slit was not fold tlik by her brother.' fiho ■says 11. was a very hard life, ami that she would not have remained t.here if she h<H not had the notion that- she had a share. 1 Very shortly after she left, the land, at the end of 1891, she marriwl. She says that just, before she got married she wrote and asksd be,r brother what her jwsition was—what share she was to get. out of the

land. She says that ho replied, offering her £24, or she could have the land. She says she did not reply, as she thought £24 too little. Tl>? defendant says that lie lias no recollection of receiving any such letter or of making such an offer. J see no particular reason to doubt the positive evidence of the nla.i-nt.iiF, but it is, I think, unsece.-siiry to decide whether or not this happened, 'the plaintiff took no further steps till some time iu 1907, when she heard that the defendant had contracted to sell the' timber on Ihe land. It dees not appear that until the s.'lc of the rimlxr any perceptible profit was being devi\e.d from the hand. 'IV defendant obtained a gram of Iho land in his own name iu 1897. I am satisfied hi the altove circumstances t hat although the plaintiff bus lain by for some time without awertin.r her rights. I,hero has not been .suflicieiU acipne.swv-.o on her part to deprive her of them, although the fact of her lving by may affect the terms in which she"will ho allowed to siss*?i't them. The right she now assorts against the defendant (lid not really arise until he had acquired the legal estate iu 1897. Previous!',- to that, her rights were, lo go on th- lend if she chose, or, if ilie defendant took more than his share of the profits of the land, lo claim a:i account from him. As she did r.ot want to livo on the land, ami as it does not appear that there weie any ix-roept-il>le profits, there was no particular reason why she should take any step-s; nor was there any reason to take ;i:ity steps until the ccniracl for the ?alo of the timber made ir worth her while, 'the defendant, however, alleges that he has sii-enl. IllOlK'V Oil improviiiif Ww kni'l If ilua be *), a* ir was <Jonv \v!m'<!p rli? plu'Tilii; \v,<is by, the defendant has a lien on the jam] f,',,' Iho amount properly expended in such imJirovriiHMit*, aiul t-Jio ))!;:«can onlv awevt iK't- riglir to tlu»" half of U»e iisinl oil Siiti-ifvth(> hn!f of (liits iHiiount. (y ei» on "Trnsis," lOili ed.. 176.) Tin; plaintiff, on tlio oihoi* liaml," woukl i„to h-alf i.Jio proccptu? rrcpivoj ihkVt 111'' 4 (.oniroel for the *;tl« of the liinbor, uml to r*ot Muir amount against wh:il slip w«a!d liiivo to puy iu rc-.spcei of merrts. The phiintilt, Hwivfore. woukl bo to it dwny foV a convevarce of iui imklpvidosl half <if l|;<« laitvl, subject lo thi 1 payinwil. of oiio-biilt of uny piof!\peutk*(i by the (bfc'iiiiant on improveniHifs on the property, but kv3, tlm biiif of itnv pinns rocoivwl or it) i'es|K»ct of the (.outran for tin 1 sn!<> of iho tinibor. To ji>corlaiu precisely what, sums have bet'w properly wpeiwlod by tho (h'fondu'i! »«u impiiry tho r?u;i.-:tii;ir would ii« Tito of such an itupiiiy v.T'Jikl, liowovtir, probnhly bo out i}[ iou to iho wil>iwt iiutver of tin. dispute, am!, i*s J ituvn tV» pnix-iplcs which govern riio righU of (he pmie-s, I would thut- tho-y endeavour to oonie to an arrvingoinent Ijoforc to king further i) i '