COURT OF APPEAL.

Poverty Bay Herald, Volume XXIX, Issue 9186, 25 July 1902, Page 4

COURT OF APPEAL.

THE WAINGAROMIA OASES.

THE CASE FOR THE DEFENCE

(Special to Herald.) WELLINGTON, this day. In the Appeal Court in Waingaromia No. 3 case Mr Bell opened the case for defendant, the Glasgow Assets Company. He stated he would not re-argue the subject matter of the dismissed preliminary motion but would take the objection for non-joinder and further for misjoinder, though he admitted he had failed to raise mis-joinder in the hearing before Judge- Edwards, ait Gisborne. In absence of a joinder of all parties, defendants were exposed to a kaliedoscopic series of actions brought sometimes by infants, sometimes by married women, I whose.husbands were alleged to> have signed or not to have signed for them, and sometimes by Natives who had signed the transfer, and had had notice all the time of improvements being effected to the land. In the first place; defendants would base their case not on their position as bona fide purchasers for value, but as. de facto possessors of the- certificate of title under the Land Transfer Act, and on the ground of there having been an entry de facto on the provisional register prior to the issue of a certificate. Whether the certificate and entry on the provisional register were a matter de jure was another matter. Under Land Transfer Act a title de facto of the transferee was a complete title of the transferor as regards the manner in which the order of freehold tenure was obtained. Even if wrongly obtained no knowledge or fraud could be alleged against his clients. His clients were in Scotland, and had no actual knowledge of proceedings and did not speculate in Native lands. Cooper was financed in the first instance by Captain Read, not by Kinross and Graham, who were Cooper's subsequent mortgagees. The price paid by Cooper per acre was the same or somewhat more than the price paid by the Government, which paid, as proved in this case, 2s. an acre. Fraud iv this respect could not be alleged against Cooper. At any rale it could not be assumed that the Government ' committed fraud. There was no association between Coioper on the one hand and' Kinross, and Graham on the other till after the issue of Cooper's order of freehold tenure, mow assailed. Grahiim alone, among the immediate parties it this stage had given, evidence in Ui.ise cases. All the witnesses except Jud.;e Rogau gave evidence 'n Mai tvs case, but the Ohief Justice, had Ie st his nul.es of evidence in this case. The folio of the provisional register in Coopar's uiv>r was opened im April, 1&77, befoie G loper had transferred through Graham's ni.-.c.y to the Glasgow firm of PotUr, Wilson, and Co. Potter and Wilson Ikciime involved with the City of Glasgow Bank, after which the interests: passed on to defendants, who having got the title were not bound to defend the antecedent proceedings. Once the certificate of title was produced the evidence brought before the Court could not be accepted, as this land transfer .title obtained by defendants in 1889 was conclusive unl-ss fraud could be proved against defendants themselves. It was understood by Potter and Wilson, and subsequently by detenchmts, that Graham was to coiiiplete the titles. It was the duty of Mr Carlile, solicitor for Potter and Wilson, to do his best to get for his clients the, certificate of title. That was not fraud. If it was he (Mr Bell) and many solicitors had committed fraud. It was not fraud for a solicitor to have the provisional register transformed into a complete register. Even if it was, fraud was only in t-f) far as the clients were bound by their solicitor. If a title conferred b ythe Lund Transfer Act was not. higher than that of a bona fide purchase for value, what was the use of the Act? The transfer by Cooper to Potter and Wilson was presented on April 12th, 1878, but was eaveated by the Crown,. That transfer remained in the office ready to be entered on the register when the Crown's caveat was removed, and the Crown agreed to take- a title through defendants' in 1889. But iii the meantime bankruptcy had intervened. Potter and Wilson's signature was probably difficult to get, and another method of conveyancing was. adopted. Cooper signed another transfer to defendants in which were receipted a series of intervening transactions, and this document which was not like a direct transfer but a declaration giving effect to a series of bona, fide transactions was entered. Mr Bell admitted that defendants' case was very much weaker than it would have been had the transfer fr,om Cooper to Potter and Wilson been entered. He went on to contend that it could be shown there were both a, plan and investigation Plaintiffs' contention that no investigation took place really took away plaintiffs' standing, as they had neglected to prove in any other way their interest in this land. With regard to plaintiffs' contention that the order of freehold tenure could not issue on an order for memorial of ownership unless the memorial itself had issued, the fact that the order of freehold tenure mentioned only an order for memorial was not proof that the memorial itself had not issued. The practice of the Native Land Court and its rules appearing in the. Gazette of 1874, page 570, sanctioned valid dispositions of land being made before memorial of ownership h;id issued, and even if will and practice were beyond the Court's jurisdiction the practice could not be held to be fraud. Surveys and delays in finding Natives often caused the issue of memorial of ownership to be delayed. The dates and particulars , of the copies of the documents were not ! always correct, and it was possible Judge Rogan's investigation and requirements were given effect to in time although as i.n the case of trusteeship they were not notified till some months later. The Crown eaveated in the first place to prevent Cooper transferring his entry from the provisional register, the ground of caveat being that under the Immigration and Public Works Act Amendment Act 1871 a- proclamation ha dbeen issued in 1876 before Waingaromia No. 3 went through the Native Land Court, notifying that this block and others were under negotiation for purchase by the Crown, and therefore could not be dealt with by private persons. That proclamation was subsequently found by the Crown to be bad, because it found that investigation of the land by the Court had actually preceded the proclamation by two months. The proclamation was also bad because it mentioned not Waingaromia No. 3, ] but an overlapping block called Waihora. Finding the proclamation bad the Crown decided that if it could m>t further attack Cooper's order of reeliold tenure and the provisional registration, and therefore did not complete the: orders, subsequently made im 1884 in favor of the Crown and of the original Natives who had not sold. Thei Crown instead elected to withdraw its caveat and take its acres through defendants, who offered to assign the-Crown, its portion and did so in 1889. This was not fraud, because defendants were prepared to fight for their title and against the proceedings of 1884. In Maitai's case it had been; decided that a retired Judge could endorse an order of .some years before without holding a new investigation, and there was nothing fraudulent in the course which the Crown and defendants, in order U> conclude the titles, decided in the eimiui.stance.s to adopt. If nothing but fiuud could upset a. de facto land transfer title, where was fraud to be found?