SUPREME COURT.

Poverty Bay Herald, Volume XLII, Issue 13718, 23 June 1915, Page 4

SUPREME COURT.

TO-DAY'S PROCEEDINGS

(Before His s . Honor *Mr Justices Cooper.)

Hjs Honor- sat at 10 a.m., when Richard Walter - Ernest Simeon, who pleaded guilty at the Magistrate's Court yesterday to 'a charge' of'theft of • £30, the property of his employer; William Stark Lawrie, was brought, up for sentence.' . ' '• " • Mr F. W. Nolan represented th« Crown. . ;•:' Mr E. H. Mann appeared on behalf of prisoner, and pointed out' tfiat §imeon was a youth of 21 years' oelrig the sen of a military family of 16% residence m Qisborne, and , his father was "&t present on active service- at« Samoa, whilst the young man hirriself had his name down to go, to the front; He further stated that up till this the. accused had borne a > good character, and ih the excitement : >of 'the' Carnival' election Accused, who '■ was only- earning 5s a wee»k/ ira a weak moriientf, so far forgot himself as to- appropriate the money for the benefit of the particular candidate m which he was • interested.

His Honor dispensed with the necessity for calling' evidence as to .character. " ' ' "" ■;'■ . ! ■ ' '\'." ? \.

Mr . Mann intimated^ ' the parents' would be ority too' pleased to refund the money and^Jthe employeF-v^ prepared to take the youth back. .■/'•' - : His Honotf fiaift that accused had biebn guilty of a foolish and criminal act, besides making an untrue statement to the police respecting the money, which was a very wrong thing to do and threw an ninpropef reflection upon -the bank staff. . His Hanoi? said that he never sent a youth on the threshhold of life to -prison* m. such cases, m the absence of settled criminal intent. _In admitting prisoner to probation he impressed upon him the seriousness of the charge, and went on. to say he appreciated the action of the employer m taking the youth back m his service, and expressed the hope that ..he would endeavor to regain his giod character. Prisoner' was admitted to probation on the usual terms for a period of j two years, and was ordered toTefund within three months! the -balance of £16 and pay costs of pros"ecutioh £3 4s. . An order was madefor restitution of the money. ' -• • ; \ . > .... DISPUTED 1 LAND TRANSACTION.

Adolphus Zachariah, of Qisborhe, tailor, plaintiff, (Mr L: T., Burhard) y. Alary Morrow^ of Oisborrie, widow, defendant (Mr ¥. W. Nolan}, and William Carlyle Wilson, ofcGisborne, medical practitioner, defendant (Mr T. Alston Coleman). . Plaintiff's statement^ cl» ini set& out that on or about August 20, 1906, defendant Mary Morrow agreed tp-tselj and plaintiff agreed to-purchase a parcel of land (with a house erected '^thereon) situated m Harris street 1 ,- Borouglv ?f Gisborne, .belonging;, to defendant Morrow. The agreements-was ■.■•-reduced, m writing on August . 20, 1906, when by the neglect and default of defendant Morrow the land 1 purported to- be sold was. described as Tiding 3 roods-Id perched more^or less' » being , Kaiti'v 98, whereas the description should have'included as well as Ndi 98,. a portion^ 99 adjoining, containing 10 percntes more or less. The-transfer was executed on May 27, 1908,: when the landpurnorted to be transferred was described as above. Plaintiff this;, became registered proprietor., of K^^ ; ,*°> whereas he should m *** -ha*» £«»*»' registered proprietor v of . Kaiti '^No. 98 and the adjoining .part) containing 10 perches. Plaintiff ! was ; aU -alone *£ Lware that the land-purported- to Hbe sold to him, and consisting of the land between the two fences consisting of the portion of 99 as \'^ll as '9B; and relied upon the representations and actions of defendant Mary"Morroj*i At the time of the agreement and transfer plaintiff's residence ' • stood and = noW stands m part on. the lo perches of Ag.. 99. On or about November 13, 1905, defendant Mary Morrow-, agreeth to sell to William H. Renner, of . <**?>f »?> postmaster, a piece of Jand-witthm fenc- & boundaries, an&be^Ktfti-No, 99, excluding the 10 percKes mentioned. On or about November 7.13^1905 .as a result of a mutual mistake between herself Und Renner the' defendant Maty Morrow executed »^ favor^f.Renner a memorandum of transfer <of the' whole, of >Kaiti 99, which\ transfer Was .duly ?L£Jred. W effect' was tc^transfev Sinner .the JO perches 4f Kaiti-No 99, although R«nner- was.not entitiea thereto unler the said/ a^&ment. ; ; ,On or about June 11, 19Go } W<* agr^d to seThis irfterest ittf 0^99 Kane, of Gisbomei' and; subsequently^ dSectioh of Kan^-ekguWd a to -William Carlyte Wrf*m. Neither .Rentier, Kane ifor'> Wilson were , bona fide purchasers for value of .the perchL Of >m ;99, u all W *a*d ; P^ies having, purchased the land according to the fence lines, and being. enUtlfed to acquire only that portion -of Kaiti m within the said fence lines and excluding the 10 pewhes. Oil May 5, I xiUr>, plaintiff discovered the ifcistake, and immediately communicatga with bovli defendants and requested them to cause the 10 perches of 99. to be transfe.wd to him,: but -defendants had ref «s3d and neglected to-do so. Plaintiff claiMed (I) rectification of the contract of Bale between plaintiff and. defoliant ■ Morrow by including the 10 peaches of Kalti No. 99; (2) a decSlardtiohr^raVdifendant Mary .Mprrow_'« entitled as aaainst the 1 defendant Wilson to be der clared the true and actual owner of the 10 perchesin questiph and that if necessary the transfer fronu Morrow to Henner and from Reuner ,to Wilson be rectified upon the ground of common mistake; (3) that defendant Mary Morrow be ordered to transfer the said portion of Kaiti 99, 10 parches, to tiff; specific perfonrnanceof^ontrac^as rectified and m the alternative (5) that dSendant WUsonfb^ order^ Jo traiisf«r thTlO perches Of NO. 99 to .plaintiff and Slnecessary to transfer .from defendant Morrow fc&^ ■£&££?:. ner to Wilson T)e, rectified^. accordingly , and (6) such furtTier or other relief as to the court shall «•*?' s&".^' - '^ sk* Mr Burnard, m outrmri^Hbhe cas* ibv, plaintiff, detailed the »?^et-out above, explaining that tae^itle of; the 10 perches was V Dr, Wjflaon an^the present possession was in 'the hands oi Mr Zachariah. The position was there were;two sections marked; off by fences, 98 (With parfc.of 995 and 99, and Mr, Rennei* bought, section 99, intending -to purchase the land between the two fences'. •" • -.'•■;•• ■ ■ ■•■■ ,;;-''.' -;- v •• •-: His'Htinof said the position then, was Dr .'Wilson' had the 10^ perches m his tttV and Mr Zachariah claimed this ad his. <" .--■*' ? ■-.-' .- ' - . '•'*•' ' • -" • ' .'-'■ . Proceedingi Mr. Burnard said that, a portfOß of Mr Zacliari&H's houae and the

whole of his drains were m the l(

perches

His Honor pointed out that the plai was misleading, and showed the hons< at least 100 links away from the rKs piited area. ,t . „_, _ Mr Burnard said the actual positioi was thatr -a pprtiQii. of the house was m the disputed area.

Mr Nolan said the plan was quiu erroneous. '

Mr Burnard said he was infornie< that when the plan was prepared it. \va only intended to show there was house 6n' : the property and not the pro cisc position. .

His Honor remarked that as the pla< ; was prepared fop Land Transfer pui poses it should show the exact position Mr Coleman .submitted' that he woul< require further proof that- the lions was actually on the disputed^ area. His Honor asked how the court couli make an order, as Mrs Morrow n< Jonger held the land, nor had Mr Rev ncr the land. By 'joining Di • -Wilsoi as a defendant plaintiff said tl*e cour had jurisdiction to order the transfe to the plaintiff.

Mr Burnard: Yes, provided it doe not come 'within the protecting* clan:of the Land Transfer Act.

His Honor asked the value of the I 1 perches. Mr Coleman said there was 9ft front ace to Harris street and it was wort' about £7 or £8 a foot.

Proceeding, Mr -Burnard submitter that -defendant Wilson had never under stood the 10 perches was* his; and ha< m fact Removed a gas' pipe to his housfrom it, although plaintiff had beer ■agreeable ■to its remaining. • Plaintif discovered the mistake -m consequent of having' a survey made to subdivide nis section; and on informing Dr Wil son lhe s latter expressed surprise. Eff6rt* to ari'ive at an agreement were withoui result.

His Honor remarked that the partie evidently air acted m good- faith. Mr Bin-hard agreed that the mistake was a genuine one. Mr Burnard went on to cite authorities m support of the claim for reoti fication of the title.- '„"•.'..

His Honor pointed out that he ha(i already reviewed the law on the subject, and had given a judgment on the point "(but not including a third party) which judgment had been upheld by the Court 'of Appeal. In that,, he had de clinecj l'.t6 follow May. Mr JBurnard said that questions m volyed m respect of T)r Wilson were whether Dr Wilson's title was inde feasible under the Land Transfer Act, and whether, there was an action against 'him .-or his- vendor. . After citing further authorities counsel contended '■ that Dr Wilson* did -not. buy m accordance, with title but as. fenced and shown to him.

His Honor said he presumed that it was not/ suggested Mrs Morrow. ..by fraud received any consideration for the ten perches. ■ • •>••..

Mr Buraard replied that the evidence was to the contrary. Tliat beingproved, he assumed that* they. •■ had\ a direct remedy against Dr Wilson and\ m support o£"whieh h<». cited a further English case. All parties were before the court and lie trusted ait equitable judgment would be given. He then called witnesses; ;•" • *-

After the' hearing of evidence and argument, his Honor held that there was no evidence'-'of personal fraud, and that the evidence of plaintiff indioated that Dr. Wilson purchased the property "believing it contaitied tliree-qnarters of an acre. ' . ■'-"•' •' r -'•' • ■"-- .:-' ■ ',