VALIDATION COURT.

Poverty Bay Herald, Volume XXII, Issue 7411, 13 August 1895, Page 4

VALIDATION COURT.

BAHUKAPCJA BLOCK. Thr followiug is Judge Barton's judgmor in the above case :— This case involves legal questions c nicety arising out of very complex fact - connected with tho purchase of interest in the Bahukapua block. Mr James East, the applicanb fo validation, claims as the purchaser of th interest of Peter JCooper from the sherii on the 22nd May, 1886. Mr Edward Pat tricks Joyce, the ob jector, claims, as the purchaser of th same interests on sth October, 1886, fron the Assignee in Bankruptcy of Daniel Pagi who derived his title from Peter Cooper. The question for decision is, which o these two gentlemen ought now to bi declared the owner of the property. Bu before the Court can decide upon th< merits of the two caseß it has to decidi two preliminary questions raised by counse viz. : Ist. Whether it has any jurisdictiot to consider the matter ab all. 2nd, Whether another Court, viz , the Natm Land Court, has or has not finally de cided the case in favor of one of the parties. This second question (as to the judg ment recovered in the Native Land Court^ divides itself into two questions, namely— 1. Whether the Native Land Court had jurisdiction to deal with the matter ; and 2nd, whether its alleged decision amounts to a final and conclusive decision on the merits of the case. In either event this Court would have to determine the rights of the litigants according to its own view of their respective merits. First, as to the question of the jurisdiction of this Court, that point is easily decided. There are six Native owners in the Bahukapna block. Five of them sold all their undivided right, title, and interest to Peter Cooper. It is now objected that because none of these five Natives have appeared here to dispute their sales to Cooper, this Court has no jurisdiction to settle a dispute between two Europeans who both acknowledge Cooper's right, and only dispute as to ■which of them has a transfer from him. But that statement seems to us fallacious. It is nob true that both parties acknowledge Cooper's ownership as valid; and, even if they did, such acknowledgment would not validate it. Their respective counsel hare to admit that Cooper purchased these five undivided shares contrary to the then existing law, and, that fact being so, the Supreme Court, if its aid were invoked by Messrs East and Joyce, would have to decide that neither they nor Cooper, through whom they both claim, tad any title capable of being treated as a title in that Court. This Validation Court, therefore, and no other, can turn those purchases into lawful purchases and settle all disputes and controversies between the parties to this litigation. ■ ■* As to the other two questions, viz., that of the jurisdiction of the Native Land Court, and whether that Court has already made a final and conclusive decision, it will be proper before discussing them to first state the facts. On May Bth, 1882, the Native Land Court ordered certificates of title to the Bahukapua block, 691 acres, to issue to six Native owners. The same Court also issued certificates of title to the Okahu blook, 730 acres, to issue to certain other Natives. The purchase by Cooper of this Okahu block is only indirectly connected with the present case, and only requires mention because up to a certain point both blocks were dealt with together. The date when Peter Cooper began purchasing shares in the Bahukapua block was 10th May, 1882, i.e., two days after title was given to the Native "owners j but although the first purchase was made on the 10th May, it is material to note that the earliest of the other four ' purchases was not made till 22nd May, and the latest not till 6th September following. On the 16th May, i.e., six days after fche first purchase was made, but before any of the remaining purchases had been made, Peter Cooper entered into written agreement with .Daniel Page, agreeing to Bell to him for L2OO the whole Kahukapua and Okabn blocks* described thus :- " Bahukapua, containing 691 acres, as the same is shown on the Government map of the district of Poverty Bay," and "Okahu, containing 730 acres, as the same is shown on said Government map, &c." By this agreement Peter Cooper undertook that he •• and all other necessary parties, if any, would execute a proper conveyance of the said parcels of land free from encumbrance lo .Daniel Page, his heirs, &c." Ie is material to notice that this written agreement is the only muniment of ' ' shown to have been made betw«and Page j and Mr DuL*- ~ cKle that its legal effect i» * ~* a Uoo P er to transfer, to T ' -utour contends had up to •' • "° transfer, or agree Uati*- .Cage only what Cooper "* . cnat date purchased from the ,«a owners, namely, one undivided doare, but that it had no effect in transferring (though it agreed to obtain and transfer) the rights and interests of other Native owners then as yet nob acquired. Mr Finn met ibis contention, by the evidence of Daniel Page, whose state- . ment in effect was as follows ; —That at the date of these Bahukapua purchases he used to have finaucial transactions with Peter and Bobert Cooper, then practising as Native land agents, and was ia the habit of lending them money on deposit of deeds of purchase from Natives as security for the repayment of his advances. He further stated that the purchases in the Ohaku and Bahukapua blocks were made by Peter Cooper, nob for himself, but as agent for the witness (Page) to whom Cooper represented these blocks as a desirable speculation - that after the making of the agreement of 16th May, 1882, the two Coopers, Peter and Bobert, requested him (Page) to allow them to sell Okahu to a purchaser who was willing to give them a named price for it, that he (l'age)gave them his permission accordingly, and afterwards gave up the Okahu deeds in his possession ou the Coopers handing to him the named price in reduction of the debt then due. Mr Page when making these statements admitted that he had no clear recollection of the transactions that took place, and could not undertake to swear to anything concerning them beyond the above facts, and the further f»ct that Peter Cooper afterwards died ia hia (Page's) debt about L 501). Mr Finn's contention whs that from this evidence it appeared that Peter Cooper was not purchasing Bahukapua and Okahu for himself but for Page, and as Page's agent, and he claimed that though the document of 16th May, 1882, purported to be an agreement for sale by Peter Cooper to Page for L2OO, the real transaction was not a sale but a case of principal and agent and he urged that the agreement of 16th May, 1882, treating the transactions as v sale for littUO waa only intended «s a move of settlement between the principal and agent, »nii that nil the purchases made hy Cooper in his own name in Bahukapuu both before and after the 16th May, 1882, were made on behalf of Page and belonged to Page. But Mr DeLautour raised still another point, viz.. : That Mr Page, being uuabiu to mime uny time wheu'iits paid trie L2OU, or to state whether he ever paid thai specific aura at all, and being only able to dtate that Peter Cooper afterwards died in his debt abpub L5OO, it should be assumed by this Court that Mr Page had not paid this L2UO before the sheriff sold to Jiiast, in which case, he contended, Coopor would havo a right to refuse to carry out tho agreement of 16th May 1882, or to pare with his "right title and interest," wfteifler as vendor or agent until he IjuU received payment, • and that cuiij&equeatly, J» e (Cooper) had then a bene.

ficial interest in the land, which interest was saleable by a sheriff* To this Mr Finn answered that if such non-payment before the sheriff's sale was ,jj necessary as part of the applicant's title, then the onus of proof of such non-pay-f ment, lay upon East and not Joyce. He g further urged, that Joyce, having proved 8 that Peter Cooper died indebted to Page, had thus proved that the L2OO was paid at some time, and nccepted by Cooper in satisfaction. He also urged that this alleged non-payment could not be material if the Court credited Page's evidence, that Cooper was purchasing, nob for himself, but as agent for Page, for if Cooper were simply agent, he could not claim any right of his own in the land, but could only claim his expenditure and agency charges, and as East had not bought Coopez's right to those monies, ho could not claim any lien on the land to secure its -(payment. Having thus far stated the facts and arguments connected with Page's title, ib now becomes necessary to seb forth with particularity the facts connected with Mr East's purchase from the sheriff. In 1883, one Josiah Bromley became bankrupt, and Mr East duly became the assiguee of his estate. Among the assets was a debt due to Bromley by Peter Cooper. East sued Cooper, and in 1883 recovered judgment for L 33 19s lid in the R.M. Court, and transferred^ to the Supreme Court in 1886. He then issued execution through his solicitor, Mr Sievwrifiht, and on 22nd May, 1886, the sheriff sold to Mr East himself Cooper's " right, title, and interest, if any," in the Rahukapua and Okahu blocks. Thus East became the owner of whatever beneficial v right, title, and interest, if any," Cooper then had under the conveyance to him from the five Natives. I say " beneficial " because a bare naked trust estate, in which the judgment debtor has no beneficial interest, is not an interesb seizable and saleable in an execution issued against him. But before Mr East purchased Cooper's interesb at the sheriff's sale, the sheriff showed to him an entry made in his books, signed with his initials, and dated 17th May, 1886. It ran thus :— " Mr Robert Cooper informs me that the Ruhakapua block does not belong to Peter Cooper, bub to Daniel Page, who advanced the money for the purchase and survey, and held the transfer from Peter Cooper, and has held the same for about three years, and also holds the deeds in the block. Peter Cooper has shown him a letter from the sheriff, and had asked him to see the sheriff and explain. Robert Cooper says that he signed the conveyance of both blocks under power of attorney from Peter Cooper." This entry shown to East, Mr Finn ; insists gave East; notice that Page, and not Cooper, was owner, and further gave him notice that the only title Peter Cooper then held in the property was as bare trustee for Page. But to this Mr DeLautour replied that the notice did not tell the truth ; for Robert Cooper is not shown to have signed any conveyance under the power of attorney spoken of in the notice, nor was it at all probable that such a conveyance ever was signed by Robert Cooper, seeing that Peter Cooper and Page both Jived in Gisborne, and there would be no necessity for Peter Cooper to sign a deed by an agent under power of attorney which he could sign in person by stepping across the street to do it. Mr DeLautour commented strongly on the fact that no such deed and no such power of attorney is now produced which fact he insists raises a strong suspicion that neither the deed nor power of at* torney ever had any existence in fact. (To he condicded to-morrow.)