INVOLVED PROPERTY TRANSACTION.

Otago Witness, Issue 2856, 9 December 1908, Page 89

INVOLVED PROPERTY TRANSACTION.

REMARKABLE DISCLOSURES. ! WELLINGTON, December 1. Reserved judgment in the case of William Aubrey ana Walter Smart and Messrs Wishaw and Greenfield was delivered by Dr M'Arthur, S.M., to-day. The- statement of claim set out that the defendants and the plaintiff Aubrey acted as agents in effecting a certain sale of land and houses, situate in Kent terrace, Wellington, from one M' Do well to one A. C. Rollet. The commiesion payable in respect of the sale amounted to the sum of £165, which it was arranged should be divided between the parties. The statement further asserted that the defendants had received the £165, and of that amount had only pajd £37 10s to Aubrey, leaving a balance of £45 still owing. 'Aubrey assigned to plaintiff Smart, und^r " The Chattel Transfer Act, 1899," the balance of £45 by way of mortgage, and Smart as mortgagee was joined in the present action. A 6 a set-off, the defendants claim that if the plaintiff Smart was entitled by assignment from ; Aubrey to the moneys claimed by plaintiffs from the defendants, the defendants were entitled to set-off against Smart's claim the sum of £100, which at the time of the assignment was due by Aubrey to defendants for certain commission agreed on between one Annie lies and the plaintiff Aubrey (or one James Aitken), arranged by defendants for and at the request of Aubrey. On or about September 24, 1907, the sum of £100 still f remained unpaid. The defendants counter-clauned against Aubrey for the £100 commission agreed upon in the exchange of land between Annie lies and James 'Aitken. The \ counter-claim further contended* that if the plaintiff Smart had any right to an interest in the moneys claimed by the plaintiffs against the defendants, then the defendants claim to set-off the £100 against Smart's claim. In the course of his judgment, his Worship said that it had been very difficult to get at the proper understanding of the series of transactions leading up to the exchange for which defendants claimed commission. This difficulty his Worship thought was due to the unsatisfactory nature of Aubrey's evidence. "A 6 far as I can make from the evidence, and I think I am correct, the following is an account of what took place, and it throws a lurid light on the transactions of certain persons who, in my opinion, ought to find themselves on the side of the court other than civil," commented his Worship. " On« Hyde, trading as Gibson and Co., had certain mortgages prepared in favour of one James Aitken over certain lands in the provincial • district of Auckland. These mortgages, purporting to be given by Donald Graham, Harold Ford, and De Baro, were stated to be for £1200 and £350, and another sum, not specified, respectively lent and advanced to the mortgagers. Such sums were never lent and advanced, nor were they any part of the unpaid purchase money. In fact, it is now admitted by Aubrey and Graham that they were bogus mortgages. These mortgages came into the hands of Aubrey, as he says, by virtue of Aitken appointing him his agent, and afterwards giving him a power of attorney to deal with them. Graham states that Aubrey signed an agreement to purchase a mortgage which he (Graham) was going to sign, and that he paid £5 deposit by cheque, which was never presented. Aubrey has now th,e mortgages in his hand, and attempts to effect by their means an exchange with one Ivey for certain lands of his in Wellington City. It should be - stated here that neither Graham nor Ford ever had any land in 'Auckland. Graham had made an application which had been "cancelled. Ivey made inquiries, and as a result he I did not complete the deal with Aitken or Aubrey, as he found out that the mortgages were no good. Aubrey meanwhile had met Greenfield, and told him that he had seme Wellington property which he wanted to exchange for a farm. Greenfield introduced Hes's property. lies saw the city property, which in reality was Ivey's, and Aubrey saw the farm. Consequent upon Ivey's withdrawal from the first proposed exchange, Aubrey did not get Ivey's property, and therefore could not complete the exchange with lies. Ivey then took up the running, and the exchange was effected between Ivey and lies. Greenfield now sues for the commission, having introduced lies. Aubrey admits that there was to be a commission of £100, but after affirmed that Aitken was to pay it. Then Ivey was willing to transfer the bogus mortgage of £1200 to Greenfield on payment by Aitken of the £100 commission. Ivey afterwards sold the farm to one Churchill, and, though denying that he owed Aubrey any commission, yet gave him a bonus. The crucial point in the case is, was Aubrey principal in the matter representing himself as such and ; Aitken either non-existent or, if existent, simply a man of straw, vied by Aubiey in these bogus .transactions? Mr Dunn, plaintiff's counsel, says the bogus mortgages were not concerned in the exchange for which the commission is claimed. In my opinion," his Worship went on, " they were the bases of the whole list of transactions, and by all parties are now admitted to be frauds. Aitken cannot be produced. He seems, according to Aubir-y, to be a great traveller for one who had been a simple barman. San Francisco and Fiji are two of the places which he is said to have visited since these transactions began last year. Th© books of Aubrey and Baker (produced) «howed no account of any dealings with Aitken. Aubrey further had said that Sommerville had the mortgage from Graham to Aitken, which belonged to Aitken. He admitted that he tried to sell it, T>ut gave as an excuse that he was drunk. On July 30, lonjj after he knew, the mortgage was a bogus one, he offered, lin writing, to transfer these worthless documents to the defendants in settlement

T for a claim for £100. Concerning tbe [ various signatures of Aitken, his Wor- ■ ship 6aid that it was significant that in one document Aubrey signed for Jamea "•Atken." He was evidently not certain of his so-called principal's name, commented the Magistrate. In the transaction between Aubrey and Read, hia Worship observed that it was an attempted exchange of what Aubrey knew to be » worthless and bogus mortgage. Summing up, • the judgment concluded: — "I am satisfied that Knew, if not at the beginning of ihe preparation of the mortgages, certainly immediately afterwards, that the mortgages were bogus and absolutely worthless; that the man of straw, if existent, was simplj a man of straw, used for improper purposes by Aubrey, and that he never had any personal interest in the mortgages, and that Aubrey, in the attempted exchange between lies and Aubrey, or Aitken, as the .case may be, and in which the defendant claimed commission, represented himself a 6 owner and not as agent." Judxhgent was en-. tered for defendants against both plaintiffe. Costs were ordered to be paid by, plaintiff, Aubrey, in the claim, counterclaim, and set-off; , Mr Dunn appeared for plaintiffs, and Mr Gray for the defendants, Wishaw and. Greenfield.