A LEASE-IN-PERPETUITY TRUST.

Otago Witness, Issue 2719, 25 April 1906, Page 10

A LEASE-IN-PERPETUITY TRUST.

AN" IMPORTANT JUDGMENT. His Honor Mr Justice Cooper ga-ve judgment on Friday in Chambers in regard to a motion on petition for a vesting order under " The Trustee Act, 1883, in respect of a, lease in perpetuity granted to James Johnston and Alexander Pringle Johnston, Mr Sim appearing for the petitioner. Judgment was as fellows : — " On the 7th April, 1900, James Johnston and Alexander Pringle Johnston, who possessed, as tenants in common, a lease in perpetuity of allotment 29, Maerewhenua Estate, sold by auction for the sum of £95, through the New Zealand Loan and Mercantile Agency Company, all their right, title, and interest in and to the lease, a.nd the petitioner, Margaret O'Connor, became the purchaser. The Otago Land Board, shortly after the sale to Mrs O'Connor, on the application in writing of both James Johnston and Alexander Pringle Johnston, consented to the sale to Mrs O'Connor, and, on the 26th April, 1900, she paid the purchase money to the auctioneers, who, with the consent of James Johnston and by the authority of Alexander Pringle Johnston, paid the net amount into the banking account of Alexander Pringle Johnston The lease was handed over to Mrs O'Connor, but no assignment of the lease was then prepared. Alexander Pringle Johnston, who had been in personal possession of the leasehold up to the date of the sale, delivered UO possession to Mrs O'Connor ike clay after the sale, and handed her the keys of the dwelling-house. She has ever since been in possession of the property. On the 18th April, 1901, James Johnston duly assigned to Mrs O'Connor all his interest in the lease, but in the meantime Alexander Pringle Johnston had left the colony, and has not since returned., and though inquiries have been made from time to time until the filing of this petition he cannot be found. An affidavit sworn by Mr Barton (Commissioner of Crown Lands for the Otago Land District) has been filed in support of the petition. He states that the Land Board is satisfied that the inability of Mrs O'Connor to obtain a transfer ql the interest of Alexander Pringle Johnston is'o'wing to the fact that he cannot be found, and that the board is satisfied •that every endeavour has been made to trace his whereabouts. Mr Barron further states tha* the Land Board has no objection to the vesting of the interest of Alexander Pring" 5 Johnston in the lease to Mrs O'Connor. The petitioner applies to the court under The Trustee Act, 1883,' ior on order vesting m her th» estate and interest of Alexander Pringle Johnston in the lease and in the lands affected by it, and directing the district land registrar to <nve effect to such order by registering her as the pioprietor of such estate and interest. Section 13 of 'The Trustee Act 1883, enables the court, when any person solely seised or possessed of lands upon any trust is out of the jurisdiction of the court, or who cannot be found, to make an order vesting such lands in such person or persons in such manner and for such estate as the court directs. Where any person is seised or possessed of any lands jointly with a person out of the jurisdiction of the court, or who cannot be found, then under section 14 the court may make an oTder vesting the lands in the person so jointly seised or possessed in such manner and for such estate as the court directs. Two questions arise-— (1) Whether Alexander Pringle Johnston is under ' The Trustee Act. 1883, a trustee for the petitioner of the legal estate in the interest vested in him under the lease in perpetuity, and (2) whether the provisions of sections 13 and 14. or of either of them, can be applied to this case. 'Trust is defined in section 2 of the act as including implied and constructive trusts. There was a similar definition in the English Act of 1850 In in re Cuming (L.R. 5, Ch. Ap. 72), Giffprd, L.J., held that where a contract for the sa.e oi copyhold property had been executed by payment of the purchase money and the execution of a covenant to surrender, the vendor was, within the meaning o£ 'The Trustee Act, 1850 a trustee for the purchaser. In in re Colling (32 Ch. D., 333) the Court of Appeal held that a vendor who had signed a binding contract for the sale of freehold property, but was not a trustee within the Trustee Act for the purchaser, the purchase money not having been paid but in re Cuming was approved; and Cotton L.J., said: 'In in re Ouniing Lord Justice Giff&rd. held, and we Inure siaoe fol-

f lowed that decision, that if the purchase money is paid to the vendor during his lifetime, he becomes a trustee of legal estate.' In the present case- a binding contract has been made and carried into effect by payment of the purchase money and delivery of possession to the purchaser of the estate sold, and therefore I hold, in answer to the first question, that Alexander Pringle Johnston is a trustee for the petitioner of the legal estate of his interest in tho lease. As to the second question, no I similar case up to the present appears to have ! arisen in New Zealand. In in re Simpson (1 N.Z. Jur., 0.5., 182), Mr Justice Chapman, acting under the English Act of 1850, made a vesting order revesting in the mortgagor property which was mortgaged to a person out of the jurisdiction of the court, the mortgage moneys having been paid off. but this order -was made under section 19 of thpt act. a section similar in terms to section 23 of ' The Trustee Act, 1883.' He, however, held that what was left in the mortgagee was only the dry legal estate, and that he was a trustee of this for the mortgagor. In the present case, all that is left in Alexander Pringle Johnston is the dry legal estate, and of this he is a trustee for the petitioner. In my opinion the present case comes within one or other of sections 13 and 14 of the Trustee Act. 'Land' is defined in the Trustee Act to include messuages, tenements, and hereditaments of every temire or description whatever, may be the estate or interest therein, and therefore includes a lease- | hold estate. The petitioner has obtained a ■ proper title to one moiety of the leasehold by the transfer to> her from James Johnston. The other moiety is, under the Land Transfer Act, vested in Alexander Pringle Johnston^ and, being registered proprietor, he is under that act solely possessed of his undivided moiety, and he holds this interest in trust for the petitioner. He is out of the jurisdiction of the coirrt, and cannot be found, and the conditions of that section are satisfied. I think, therefore, that the order asked for may be made under 13. But, assuming that he is not solely possessed within the meaning of section 13, then, in my opinion, ihe is jointly possessed of the leasehold interest with the petitioner. The term ' jointly seised or possessed does not necessarily mean a joint tenancy. Seotion 14 cf our act is substantially similar to se-ction 10 of the English Act of 1850. In in re Templar's Tiusts (4 N.R., 494) Stuart, V.C., held that co-parceners were within that section; and in in re Greenwood's Trusts (27 Ch. D . 359) Pearson. J., followed that case. Vicechancellor Stua-st gave no rea-son for his de- | cision, but Mr Justice Pearson held that ihe words ' jointly seised ' were not to have their 1 strict legal meaning, but were used in 'their widest possible sense, and were not confined to a joint tenancy. Co-parcenefs, although taking by unity of title, are not joint tenants. There is uni+y of title but no benefit of survivorship. If, therefore, the term ' jointly seised or possessed ' can be extended to a case of co-parcenary, which is, strictly speaking, neither a joint tenancy nor a tenancy in common, I see no re?son why, giving, as Mr Justice Pearson says, the widest possible meaning to the words, they should not also include a tenancy in common, in which the parties, although not joint tenants, are coownera, and therefore may be properly said to be jointly possessed. Therefore, in this ■ sense, the petitioner is jointly possessed, so far as the legal estate is concerned, of the leasehold with Alexander Pringle Johnston, and he i is out of the jurisdiction of the court or cannot be found. The court has, under section 13, power to vest ihe land in such person and for such estate as the court directs, and under 1 section 14 power to vest the land in the person possessed of the land jointly with the person out of the jurisdiction of the court or who i cannot be found. As the petitioner is the ' beneficial owner of the whole leasehold, and has the legal estate in one moiety, I therefore am of opinion that I can make an order vesting the estate and interest of Alexander Pringle ; Johnston in her, and directing the district * land registrar -to give effect to the order by I registering her as the proprietor of such estate or interest. As the question is an important I one and is one which does not appear to have been previously dealt with. I have considered it desirable to state in full the grounds upon which I have come to the conclusion that I ought to grant to the petitioner the relief I asked for. - v