SUPREME COURT.

Otago Witness, Issue 2391, 28 December 1899, Page 10

SUPREME COURT.

CIVIL SITTINGS.

Tuesday, Decembeb 19. (Before his Honor Mr Justice "Williams.)

DCVGZ.AS JOHN LARNA.CH V. SIEVWRIGH.T AND

ANOTHER.

An action to set aside an assignment deed. Mr \V. C. MacGregor appeared for the plaintiff; Mr F. 11. Chapman for the defendant, Walter Hislop; and Mr James for the defendant, Basil Sievwright. The hearing of this case was resumed at 10.30.

Mr MacGregor submitted that the plaintiff win entitled to a. decree es prayed. The case ha! been proved as opened; and was in reality governed by thi former decision of the court in Inder v. Sievwright and others. The main que&tions for the consideration of the court in the present case were two. The first, of these was — had the plaintiff independent advice or, in other words', was he a free "agent in the transaction in question? - On that point there could bo no doubt that the present was a typical case of parental authority being employed by a father to procure sn advantage and derive a benefit from a child completely under his control. The court would, he submitted, not allow such a transaction to stand. The second question was — had there been anything in the subsequent conduct of the plaintiff to prevent him row asserting his rights. To that the answer must be in the negative. Until Mr Larnach's death in October, 1808, there could as a matter of lav/ be no acquiescence, and from October, 1898, to the beginning of October, 1899, when tho present action wa3 started, there had been no lengthy delay and no unequivocal acts of the plaintiff from which acquiescence would be inferred, and further, any acquiescence that could be established in tho present was founded on a misapprehension by the plaintiff of tho legal effect of the transaction in question.

Mr Chapman, in addressing the court for the defence, submitted that the plaintiff was not entitled to a decree, and, in commenting upon the case, said it was characterised by this very singular circurnftance that tho plaintiff wa3 trying to unset a deed mado some years after ho came of age, and there was no suggestion from him that this action was to undo anytr ing improperly brought about, as he expressly stated ho 'vas not bringing the action to set aside the deed because of anything improper done by his father, but because his brothers aa-1 sisters hud behaved dishonestly in not standing to their deed. The case hinged upon tho expression " ' The Camp ' is mine," and it was not suggested in any way that he had failed to appreciate tho position. The plaintiff had explained the expression fully and intelligently — liia father had promised to give him " The Camp," and he relied upon it that his father would carry out that promise. " The Camp" was to bo his home; he was to stay at home, and it was to be good enough for him, but it was, to hia own knowledge, to be in sonao wav charged with interest in favour of his sister: it was to be a home for him, but in what exact form was eventually a matter for the determination of his father. In other words, the plaintiff quite recognised that when they had given back " The Camp " " Tho Camp " became absolutely the father's, except so far as the youngest child was concerned, and that it was for his father to determine in what way " The Camp " was to bo dealt v/ith, and subject to what charges, for tho daughters. The plaintiff must have known a fortnight before hia father's death that his father had not yet carried out tho intention of giving him " The Camp," because he gave a very intelligent description of hia father's statement as to hia deaiie to mako a will giving him " Tho Camp." Tho learned counsel submitted that when a man deliberately elected to treat a deed of gift as his deed, it remained so; if there was, with, knowledge, an election, and decision to treat it as a deed, then it was a deed, and a man waa as capablo of that in the caso of a voluntary, deed as in the caso of a deed in respect of which there is some consideration. If on the day of the previous trial the plaintiff had been aßked to sign a deed confirming the former deed there could bo no question ho would have immediately confirmed it in the interests of his stepmother, and that was exactly what he Had done, though not by the same means. The plaintiff would still like to confirm tho deed, and the action was brought apparently to repudiate, not the act of his father in obtaining tho executidn of the deed, but the action of his brothers and sisters in taking proceedings to have that deed set aside. The learned counsel submitted that though a man might have an equitable right to set a deed aside, when once he decided to give up that right the deed became his, and in th-i present caso they had as clear and positive < a determination to stand upon the deed now attacked, a-s if he had determined to re-execute it There was no claim for either outside or ! parental influence. The plaintiff hnd been i given the option of awaiting his father's bounty, j or of going abroad and earning hia living, and. j he had chosen to await his father's bounty. Ho was then in the position to acquiesce in the deed, and did so acquiesce, and after his father's death had deliberately elected to take up tho samo position, and had acted up to it to the time when ho had decided not to im- i peach the transaction between himself and his fathar^. but 'to «et it aside because he Relieved

hia brother and sisters had acted improperly. He submitted that there never was a clearer case of acquiescence, and that none of tha requisites to setting aside even a voluntary gift had been shown. Mr James did not address the court. Mr W. C. MacGregor, in reply, said that hia learned friend's ingenious theory came to this : that if his view as to the construction of the evidence were adopted by the court the execution of tho deed had been obtained by Mr Larnach, sen., by representing to the plaintiff thaft he would give him "The Camp." That was the result of the comments that had been made by coiuisel. The evidence showad that " The Camp " had not been given to the plaintiff, so that in^ addition to the abuse of parental authority, if that view were correct, thero had been absolute misrepresentation. From the evidence it was perfectly obvious that what had influenced the plaintiff in the action he had taken since the death of his father was not money, but a determination to stand by tho family honour ; but there was no evidence that he had elected to stand by tho deed, and absolutely none of acquiescence. His Honor reserved judgment."