SUPREME COURT.

Otago Witness, Issue 2057, 27 July 1893, Page 14

SUPREME COURT.

CIVIL SITTINGS. Monday, July 24. (Before his Honor Mr Justice Williams. ) M'INDOE V. THE JUTLAND FLAT (WAIPORI) GOLD MINING COMPANY. Claim for damages, and for an injunction to stay the operations of the defendants prejudicial to the plaintiff's right. Mr F. R. Chapman appeared for the plaintiff, Robert Mflndoe, of Maungatua, farmer, and Mr Hosking and Mr Sim for the defendant company. The hearing of this case was resumed, and Mr Chapman, who "had moved for/an injunction, was heard in reply to the arguments raised on the other side, after which Mr Hosking, by leave, briefly addressed the court in reply to some of the points mentioned by Mr Chapman. His Honor intimated that he would take time to consider his decision. LARNACH V. IRVING. Claim £200, damages. Mr Sim appeared on behalf of the plaintiff, William James Mudie Larnach; and the Hon. John Macgregor on behalf of the defendant, Richard Irving. In this case, which was heard on the 19th inst., His Honor delivered the following judgment :— There was some conflict of evidence in this case, but no greater, than might reasonably be expected to occur when the parties speak as to conversations that took place a long time ago, and look back on such conversations in the light of subsequent events. Fortunately, however, the conflict of evidence does not really affect the decision, which must rest mainly on the doctrine of law that where there is a contract for the sale of land, and there are errors of description on the part of the vendor, the purchaser cannot after the completion of the conveyance obtain compensation from the vendor in respect of such errors unless there is a condition in the contract which entitles him to do so. This disposes of the claim for short acreage, and also of the claim in respect of the incorrect boundary. With respect to the claim on account of the rent being reduced to £90 by a deed of covenant executed by the defendant subsequently to the contract having been entered into, but ■ before completion, I will assume that the statement - originally made by the defendant to the plaintiff was that the rent was £100. After, however, the contract had been entered into, but before it had been completed by conveyance, the defendant's son, acting on behalf of his father, took to the plaintiffs solicitor, who was to prepare the conveyance from the defendant to the plaintiff, a letter which the defendant had some time before given to the tenant promising to reduce the rent to £90, in order that the solicitor might do what was necessary to protect the tenant's interests. 'The plaintiffs solicitor, wrongly conceiving this letter to be a binding contract, wrote to the plaintiff, informing him that the rent— by an arrangement by which the plaintiff as purchaser was bound— had been reduced to £00, but that as it had been originally represented to him as being £100 he could object on that ground to complete the purchase. The plaintiff, however, raised no objection, and the plaintiff s solicitor— under the instructions of the son of the defendant— and the tenant prepared a deed of covenant which was executed by the defendant and the tenant by which the rent was reduced to £90. After that the deed of conveyance by the defendant to the plaintiff which had been prepared by the same solicitors was executed by the defendant, and the purchase waa completed by the payment by the plaintiff to the defendant of a part of the purchase money, and the execution by him to the defendant of a mortgage for the balance. The plaintiff, however, was not informed by his solicitor, and was not otherwise aware of the fact of the execution of the deed of covenant, nor that the letter promising the reduction was a nudum pactum, and that he as purchaser would not have been bound by it. The plaintiff, however, was content to complete under the belief, induced by the letter from his solicitor, that the rent then payable was £90 only. The solicitor in question was the plaintiffs solicitor, and .had never been employed by the defendant, and 'the defendant only went to him because he was carrying out the transaction for the plaintiff as purchaser. In these circumstances I am satisfied that the knowledge of the plaintiff's solicitor must be treated as equivalent to the knowledge of the plaintiff, and that the plaintiff must be taken to have completed with the knowledge of and subject to the reduction effected by the deed of covenant. I think, therefore, that this claim cannot now be sustained. After completion of the purchase, unless covered by the covenants for title in the conveyance, the only ground on which any of the above claims could be supported would be, not that there had been misrepresentation merely, but that there had been fraudulent misrepresentation. The action, however, is not for fraudulent misrepresentation ; nor does the statement

of claim allege "or nuggest such a cause of action. If, however, the allegation had been made, it could not, in my opinion, have been sustained. So far as the statement as to acreage is concerned, it is certain from the correspondence that the defendant, to the knowledge of the plaintiff, wa3 doubtful as to the exact acreage. Thecircumstance that the defendant asserted the boundaries to be in the right position, when in fact they were not, is not alleged in the statement of claim at all as a ground of injury. If, however, the defendant made the statement that the plaintiff says he did, that the land up to the boundary as fenced belonged to him, the evidence of Micnie shows that he bslieved it belonged to him, although the accuracy of the boundaries had been questioned by Blatch. As for the statement that the rent was £100, that,' as a matter of fact, was the rent reserved by the lease, jmd the , circumstance that before anything had been done under the contract beyond the payment of £25 deposit, ho (defendant) told the plaintiff's solicitor the exact position of affairs would negative any suggestion of fraud in the original statement. If fraud had been properly alleged no jury, if instructed according to the law as laid down in Derry v. Peek( 14 App. Cas., 337), could reasonably have found fraud upon the evidence. The last point is that the defendant is liable on the covenant against encumbrances implied in the conveyance to the plaintiff because of the existence of the lease, and that the plaintiff is entitled at anyrate to nominal damages although he was aware of its existence when he took the conveyance. The question whether a purchaser can recover at all under a covenant against encumbrances in respect of an encumbrance of which he was aware at the time of the completion of his' conveyance does not appear to be settled (Elpmnstone on Deeds, p. 481), but no doubt there are cases which indicate that at law he can recover (seeLevett v. Withrington.Lutw. 97). If, however, a purchaser at the time of the completion of the conveyance is aware that the land is in the occupation of a tenant, and of the terms of the tenancy, and completes with the intention of taking the land subject to thaj; tenancy, then if the deed of conveyance accidentally omits to mention that the land is subject to the tenancy, the omision is a mutual mistake of the vendor and purchaser which a Court of Equity would rectify. Such a state of facts, would, I think, in England sincethe Judicature Acts and here afford a complete equitable answer to an action on the ' covenant complaining of the existence of the lease as an encumbrance, even if it would not have been a sufficient plea in law under the, old system. As by the deed of , conveyance , the description follows the Crown grant description, there is no other part of the plaintiffs claim which the covenants for title in the conveyance cover. There must, therefore, be judgment for the defendant.