SUPREME COURT.

Otago Witness, Issue 3714, 19 May 1925, Page 30

SUPREME COURT.

His Honor Mr Justice Sim hold a sitting of the Supreme Court on Tuesday. ACTION FOR RECOVERY OF PROPERTY. Francis Spencer Brent and Peter Stewart Anderson sued George Atkinson Birch for the recovery of £175 and interest under % mortgage, possession of land, costs of the possession of land, an I also for the cosif of the action. Mr F. B. Adams, who appeared for plaintiff, said that the matter concerned a property in Kennedy street, St. Clair, a second mortgage over which had been given by Claude Albert Taul Dixson, who was now in the North Island. Payment under the mortgage had been in default since December last. Defendant had been in possession of the property since the middle of December, having entered, after inspection, without having gone through the form of completing the purchase. Subsequently he proceeded with the negotiations, but had been in possession four months without making any payments. Neither the owner nor the bailiff nad succeeded in holding the fort against defendant, and, though peaceable means had been tried, they were found to be futile. There was nothing left but to come to court. Peter Stewart Anderson, solicitor, evidence. Defendant said that no money had ever been demanded. He was quite willing to pay cash at any time. He had bought ♦he property for £I3OO after failing to come to terms through several agents. He was waiting to be asked for the money. His Honor: The mortgagee is entitled to possession of the place. Your statement is no answer to the action at all. Defendant: I have always been willing to pay. His Honor: It was your business to find out the mortgagee and satisfy him; ic was not his business to chase you. You have no answer to the action, and it is a pity you came here and wasted your money. Defendant: That's funny. I’m quite willing to pay. His Honor: I must give judgment against you for possession, with costs on the lowest scale. You will have to give up possession or the sheriff will turn you out. Defendant: What time can I have to get out? His Honor: Arrange that with the mort* CLAIM FOR SPECIFIC PERFORMANCE. Walter George M'Dermott proceeded against Clara Elizabeth Violet Middled itch for specific performance of an agreement and declaration. The Plaintiff prayed (1) that the court would order ihe defendant specifically to perform an agreement and accept a transfer of land; (2) for a declaration that the plaintiff was entitled, upon delivery to the defendant of a valid transfer of the land, to payment from the defendant of £690 10s Gd, together with interest thereon at the rate’ of 7 per cent, per annum from April 1, 1025, to the date of judgment; (3) further to such other relief as the court might think fit. Mr Barrowclough appeared for the plaintiff, and Mr Callan for ihe defendant. Th position was that a contract for sale of a property had been entered into, provided the vendor took over the interest in a Starr-Bowkett mortgage, if required. The question for the court to decide was whether the purchaser of the property was to be credited with the amount of the loan, plus the amount of the premium, or with the amount of the premiums only. After hearing evidence anil lengthy legal argument his Honor ruled that the parties contracted under a mistake, common to both, and that therefore no binding contract had been entered into, and that plaintiff was not entitled to the relief claimed. ITo made a declaration to that effect, the question of costs being reserved for argu-i ment in Chambers.