SUPREME COURT JUDGMENTS.

Poverty Bay Herald, Volume XXXVI, Issue 11819, 5 April 1909, Page 5

SUPREME COURT JUDGMENTS.

At the Magistrate's Court this morning_ before a full representation of the local members of the Bar, Mr W. A. Barton, S.M., Registrar of the Supreme Court, read two. judgments which he intimated had been received from His Honor, Mr Justice Edwards, respecting matters that were heard at the last sitting of the Supreme Court held m Gisborne. The judgments were as follows : — HOWIE AND OTHERS v. D» J. BARRY. Fanny Rose Howie, Thomas Ricliard Porter, Francois Henri Porter, Isabella Hamilton, Ada Dalrymple, Donald Kerr Porter, Minnie Kathleen Perry, Raymond George Porter, and Heri Patene Waiti and the said Thomas Porter as trustees for minors Tundra Waiti and Kanarata Rarere v. David John Barry. Mr L. T. Burnard for plaintiff and Mr J. W. Nolan for the defendant. '

This is an action brought by Fanny Rose Howie, and nine other Natives, as the successors of Herewaka Poata, a de ceased Native, for the recovery of rent Tinder a lease regisiered under the Land Transfer Act. Tho title is an order of the Nativo Land Court, constituting a folium of the, Provisional Register, vol. 15, folio 1, for the Land Registration District of Poverty Buy. m favor of Herewaka Poata- and nineCother Natives. Under this order the registered Owners are declared to be entitled as follows: — Herewaka Pjoata to one share out of three and af' half shares, of which the land is deemed to consist,, and the other Natives m varying proportions, making up the remaining two and a' half shares. By lease dated the 20th of August. 1900, registered on the Bth of November, 1900, as No. 2151, all the Native owners demised the land to James Cattell for the period of 21 years from the Ist of May, 1898, at an annual rental of < £150, payable half yearly m advance on the Ist of May and Ist of November m each year. By virtue of divers mesne transfers and ultimately by a transfer dated the 23rd of May, 1907, fromThomas Richard Porter and James Henry Parker, registered on the 30th of May, 1907, this lease became vested m the defendant. By a succession order dated the 22nd of July, 1905, registered on the Bth of November, 1908,, as No. | 2627, it was determined that the plaintiffs "are the persons who are entitled to succeed to the share or interest . of and m the "said land whereto the deceasr ed died entitled"; and it . was ordered that "the said share and interest .shall vest m the above-named successors, m the proportions set out after the name of each respectively as ''from the 7tfi day of December, 1904." This succession order shows upon its face' that the first? nine plaintiffs are each entitled to oneninth of the interest of Herewaka Poata, and Tanara Parata Waiti and Puiarata, Rarer© each to one eighteenth of such interest. Paiarata, Rarere is shown 'by the succession order to be a minor. The minute of registration entered oh the Provisional Register declares the plaintiffs to bo entitled/"as : tenants m common m unequal shares." The plaintiffs! who are named as trustees for the minors are not registered as such. The plaintiffs claim to recover from the defendant two-Feveriths of the halfyearly instalment of rent which fell due on the lut of May, 1905, viz., £21 6s 6d, and two-sevenths of the seven succeeding instalments, up to and including the Ist day of November. 1908, total £171 Bs. A claim for the half-yearly instalment due on tho Ist of November 1904, was abandoned at the trial. The statement of claim alleges the succession order, and the proportions m which under that order the plaintiffs are interested. There is no averment as to the appointment of trustees for the persons alleged to be minors. So far as the title shows Puiarata Rarere only is a minor. The statement of defence avers that the interest of Puiarata Rarere was vested m the . plaintiffs, Hori Patene Waiti and Thomas iiictiard Porter as trustees; it further avers that all' rent reserved by the lease, has been duly paid; and that t^he plaintiffs are not registered under tho -Land Transfer Act as proprietors of any estato m the land. Certain other ■ matters are set out, but were jiot relied upon at the trial. At the trial it was proved m the course -of the plaintiffs' case that all the plaintiffs except Fanny Rose Howie had given their father a written authority to receive the rent, to be'upplutfl to certain purposes. There was no evidence to show that the rent had not been duly and regularly paid to the plaintiffs' father, and applied by him m accordance with tliis authority. Counsel' for the plaintiffs therefore admitted that ail the plaintiffs, except Fanny Hose Howie, must bo nonsuited; but he contended that the plaintiff was entitled to recover a proportion of the whole of the rent claimed m the action, although fivo out of the eight instalments claimed had fallen due before the lease was transferred to tho defendant. Counwl for the defendant contended that the plaintiff Fanny Rose Howie, as well as the other plaintiffs, must be nonsuited upon the grounds — (1) Because the was not regiptered as proprietor of any estate m the land until the Bth' of March, 1908, after the sitting of th> Court had actually begun; (2) because having joined with the other plaintiffs m this action, she cannot m this action recover according to her interest, although fiho might perhaps have brought a separate action m respect of her own interest. He also contended that m any event the .defendant could be held liable only m respect of the period during which ho has been registered as proprietor of the lease. In my opinion the first objection is aound. Under the interpretation chtusc of the Land Transfer Act, 1908, tho word "instrument" is made to include any written or printed document, . map, or plan relating to the J,r,ansfer of or other dealing with # or evidencing title thereto; the word ' ''dealing" is inaJde to include a "transmission"; and "transmission" is made to include the acquirement of title consequent upon the death of a registered proprietor. The 38th section of the Act provides that no instrument shall bo effectual to pass any estate of interest m any land under the provisions of the Act, but that upon the registration -m mauner prescribed tho estate dr interest specified m such instrument shall pass. By virtue of the definitions of the interpretation clause, to which I have just' referred, the word "instrument* m section 38 includes a succession order. The plaintiffs had therefore no legal estato or v interest m tho land, the. subject of this action, when the acton was begun. They could not therefore maintain an action for recovery of possession of the land, or for the recovery of rent under the lease. It is hot rieceßsary- to deal with the other grounds of nonsuit raised. The caso of Henaro Tomoaha v. Ormond, 3 N.Z.. Jur.N.S. S.C.) 85, cited by Mr Nolan, m support of ;the second ground, appears to upplv to tho claim of the plaintiff Fanny Rose Howie to judgment for.a proportion of the rent, notwftn*tamling the failure of proof/on'the part of the other plaintiffs that any rent is owing m respect of their interests. ' It is. 'not,,; Tiowever, necessary to decide this pomt 1 , and, as I have not had timo or opportuni^ fully to consider it, ; I do nofc decide. it. .

,Tho plain^iJffß must be nonsuited with costa according to scale.