SUPERME COURT.

Colonist, Volume XII, Issue 1171, 15 December 1868, Page 3

SUPERME COURT.

SITTINGS IN BANCO. FEIDAY, 11th December.

PORTER AND OTHEKS V. TE KOIU^IO AND OTHEKS. His Honor Judge Richmond pronounced the following judgment in a demurrer raised to the declaration of the plaintiffs in this case: — In this action the substantial plaintiff is Thomas Taster, and the substantial defendants are John and George Jervis. A number of other persons, including the Registrar of Deeds, have been made parties either a3 plaintiffs or defendants. But these additional parties have been joined either without any intelligible purpose that I have been able to discover, or upon obvious misconception of the law. The relict prayed for against the defendants, John nncl George Jervis, is, in effect, that they be declared to be trustees for Taster and his co-plaintiffs of a piece of land at Wcstport purchased by those defendants of certain Maoris. The ground staled for this relief, or which it seems to have been intended to state, is that George Jervis, at the time of the purchase, had been retained on Taster's behalf to complete for Taster a negotiation already commenced by a person named Decy for the same purchase. The plaintiff Taster claims, therefore, the application of the doctrine of equity that for an agent to purchase, on his own account, property which lie is employed to buy for his principal, is a fraud; and that the principal is in such case entitled to the benefit of the purchase. The defendants, John and George Jervis, have demurred to the declaration; and the principal grounds assigned, and insisted upon in argument, are three : (1) that the declaration does not allege or disclose that defendants, John and George Jervis, or either of them, were, or was, the agents, or agent, of the plaintiffs; (2) that the declaration docs not allege that the conveyance from the Maoris to John and George Jervis,"dated 26th July, 1867, was obtained by fraud ; (3) that, the declaration docs not allege or set forth any writing signed by John and George Jervis, or either of them, whereby a trust of the^said land can be, or is, created in favor of the plaintiffs, or either of them. It is strange that a declaration, which sets forth at full length five deeds and a notice to quit, and extends, sis I suppose, to over one hundred folios in length, should even seem to be obnoxious to such an objection as the first; for the i'act of agency is the foundation of the plaintiffs' cause of action! Yet I have felt some difficulty in deciding against the objection. My difficulty has arisen from the complete disregard on the part of the plaintiffs' pleader of the distinction between matters of pleading and matters of evidence. The declaration is throughout framed on the plan of setting forth, in detail, the acts and events (termed in Rule 51, secondary facts) upon which the 'plaintiffs intend to rely at the trial, as justifying the inference of those more general proposition's of fact on which their cause of action depends. This is a mistake; for a good declaration must be so framed as to enable this Court, to affirm, as matter of law, that, if the facts therein stated are true, the plaintiff is entitled to judgment. The Judges of the Supreme Court of New Zealand are not, any more than the English courts of common law, at "liberty'to draw inferences of fact. To this Court, as to the superior courts of common law at Westminster, the maxim applies ad questionem facti non respondent jiul'wes. It is, therefore, necessary that litigants should set forth in thoir written pleadings the propositions of fuct on which their cause of action depends, not the circumstances from which they intend to ask a jury to infer those propositions. It is a blunder to frame a declaration for specific relief upon the model of a bill of equity, which is a complaint addressed to a court, the Judges of which are Judges of fact as well as of law. I think, however, that if the evidentiary facts aa pleaded are such us would not merely justify a jury in finding the fact of agency, but would absolutely require from them such a finding, the declaration, though irregular, (see Rule 50), is, in that case, sufficient. For the Court, recognizes thut evidentiary facts may sometimes be in their nature perfectly conclusive, viz, such as legally to admit of only one inference. And I think that the narrative contained iin the Bth paragraph of the Declaration does set forth, facts from which the only possible conclusion is that George Jervis was retained aa Tasker's agent. The paragraph in question is ns follows : — " A few days subsequently [viz, subsequently, to about the end of June, 1867,] the said John Hassard Deey, in the presence and hearing of the defendant, George Jervis, informed the plaintiff, Thomas Tasker, that he, the said John Hassard Deey, had concluded the negotiations with the defendants, Hori teKoramo, Mata Nolie.nohe, and Honi Manhika, and that he had engaged with them to proceed to Nelson for the purpose of executing the deeds for conveying the beforementioned land in fee to him, upon his paying to them, the said defendants, Hori te Korarao, Mata Nohenohe, iv-.A Honi Manhika, the sum of one hundred pounds for it; and that if the defendant, George Jervis, would go to Nelson with the said plaintiff, Thomas Taster, and arrange for the conveyance from the said Hori te Koramo, Mata Nohenohe, and Honi Mauhika, to the said plaintiff, Thomas Tusker, the siiid John Hassurd Deey, would divide with the said defendant, George Jervis, the commission of fifty pounds, payable in respect thereof; and the said defendant, George Jervis, assented thereto." The pith of this lengthy and ill-connected statement is in the last eight words. Those words amount, perhaps, to a direct averment that George Jervis agreed to act as Taster's agent. But, at least, the paragraph, taken as a whole, sets forth facts from which, if admitted, a jury would be in law compelled to find that George Jervis did so agree. And the matters of evidence set out in paragraphs 9 aud 10, (with which I do not encumber this judgment), import, that George Jervis entered upon and acted in the business of the agency. The defendants' first objection must therefore be overruled. As to the second objection, I am of opinion, that fraud is sufficiently averred as against George Jervis by the 22ud paragraph. That paragraph alleges "That under the circumstances aforesaid, the defendants John Jervis and Geoi'ge Jervis cannot retain their freehold against them," (viz., plaintiffs) ; " and that the said deed of conveyance, of 26th July, 1867, executed as aforesaid, is fraudulent and void, and ought tit bo delivered up to be cancelled." Although this paragraph is disjoined from paragraphs 8, 9,10, and 11, by a mas? of matters not relevant to the plaintiffs' real case against the brothers Jervis, yet the referential words " under the circumstances aforesaid," must be taken to include all the preceding averments of the declaration. Prom the statements of paragraphs 8, 9,10, and 11, I think it appears that George Jervis bought for himself and his brother whilst he was employed to purchase for Taster; and, if it be necessary to charge fraud in terras, I thint this is done by the application to the instrument of conveyance of the term fraudulent. But, unless John Jervis had notico of his brother's employment as Tasker's agent, there is no equity against him ; and it is neither stated in, nor to be inferred from the declaration that John Jervis, at the time of his purchase, had such notice. The allegations of paragraph 5 refer to an altogether different transaction. Therefore lam of opinion that the declaration is bad as against defendant John Jervis on the second ground of demurrer. . The third objection is founded on the terms of the 7th section of the Statute of Frauds, whereby it is enacted " That all declarations or creations of trusts or confidences of any lands, tenements, or hereditaments, shall be manifested and proved by some writing signed by the party who is by law enabled to declare such trust; or by his last will in writing, or else shall bo utterly void, and of none effect." The short answer to the objection is, that the so-called trust in the present case is not one declared or created by the parties; and therefore is not within the statute. What is here called a trust is an equitable right of Tasker against George Jervis, which has arisen, according to the case made by the plaintiffs, out of a transaction (namely, the purchase by the brothers Jervis,) effected without the knowledge, and contrary to the intention, of Taster; and which, on George Jervis's part, was certainly aofc meant to Iwve the

effect of establishing between himself and Taster the relation of Trustee and cestui-que trust. Such a trust is not to be confounded with a trust pi'oper which is always based on contract express or implied. To say that there is a trust in a case like the present is only another way of expressing that a Court of Equity will not allow the agent to keep what he has acquired by a fraud on his principal. Tho equitable right which it is sought to enforce is of the kind infelicitously j termed constructive trusts; and such arc not within the terms of section 7 ; and are moreover expressly excepted from the statute by section 8. The defendants' argument on this head lias an apparent foundation in the expressions of various text writers when treating of purchases in the name of another. Thus Mr. Lewin (Lewin on Trustees, 5 cd. p. 136) speaking of the evidence -which will be admitted to establish that the nominal pui'chaser of an estate is only a trustee for another, says : —" The rule as at present established will not warrant the admission of parol evidence where an cstato is purchased by an agent, aud no part of the consideration money is paid by the employer; for, though an agent is a trustee in equity, yet the trust is one arising ex contractu, and not resulting by operation of law." And for this position he cites amongst other cases Bartlett v. Pickersgill, (1. Eden, 515). Similar statements of the law will be found in Sugden's Vendors, (14 cd. p. 703), and Story's Equity Jurisprudence, (S 120 a.) But all these eminent -writers have, evidently, in view a different class of cases from the present. Bartlett v. Pickersgill, which they all cite, is the leading ease of this class. In Bartlett v. Pickersgill the plaintiff sought to compel a conveyance of an estate which was alleged to have been bought by the defendant for the plaintiff upon a verbal agreement between them, and Lord Keeper Henley refused to allow evidence to be given of this agreement. The plaintiff, therefore, sought to establish a trust, which he alleged to have been created by the parties. Here the case of the plaintiff is, that the land was bought by George Jervis, not in pursuance of an agreement between the parties, but in violation of George Jervis' agreement to act as subagent. Indirectly, Tasker's right is founded upon George Jervis' agreement to act as sub-agent. But this agreement did not create any trust of the land, nor has any such trust arisen under the agreement. The so-called trust is not one created or intended by any of the parties, but is a right accruing to Tasker in consequence of a wrong committed by his agent. In short, Tasker's cause of action arises ex delicto, not ex contractu. Notwithstanding the seeming countenance afforded to the defendants' argument by the text writers above cited, I have no doubt that the defendants' third objection is untenable. The cases of Lees v. Nuttall, (1 Russ and M. 53), and Taylor v. Salmon (4 Mylne v. Craig 139), are direct authorities that an agent for purchase will not be allowed to buy for himself; and I may refer to Mr. Spence's note upon these cases, and Bartlett v. Pickersyill, (2, Spence's Eg. Jur., p. 203 n. g.), as justly taking the distinction between the last mentioned case, where the bill was founded upon a verbal agreement, and cases like the present, where the plaintiff founds his claim upon the abuse by the defendant of his position as agent. The case of the purchase money paid by one man, and the conveyance taken in the name of another, is quite as strong as the present. In that class of cases it might bo argued that a trust lias really been created by contract, and that the statute excludes all parol evidence of such contract. Bnt the Court, disregarding the alleged contract, lays hold of the circmstance that the plaintiff has paid his money, and that it is fraud in the defendant to retain the land. Thus the Court raises a constructive trust; a trust arising ex delicto not ex contractu. These cases, when rightly understood, affirm the principle on which this Court is now proceeding. There is one minor objection raised to the Declaration on which I must say a few words. Amongst the additional grounds of demurrer, it is excepted to the declaration, that it does not offer to repay the purchase money of £100 paid by the Jervis brothers to the natives. No doubt by the English rule 3of equity pleading a plaintiff in equity is in many cases bound to offer to do equity; and in the present case it would be a condition of a decree against John and George Jervis that they, or one of them, should be paid or allowed by the' plaintiff Tasker the sum in question. But without deciding whether any principle of pleading in force in this Colony makes it imperative on the plaintiff to undertake in so many words to perform this condition, I am, at any rate, of opinion, that the present declaration is sufficient; as it contains an offer and undertaking by Tasker to pay the purchase money of the land to the Maoris. The plaintiff Tasker's case has indeed been strangely misconceived. Against the Maoris he has no equity ; and to them therefore he can have no occasion to make this payment. But the declaration discloses that Tasker is ready and willing to pay the price of the land, and this is enough; and the Court will, if need be, direct the payment to be made to the proper party. His Honor said that the sum of the judgment was, that the demurrer to the plaintiffs' declaration was allowed as respects the defendants, John Jervis, and disallowed as regards the defendant, George Jervis. With respect to costs, it was the general rule to allow costs to go with the judgment, and in this case each side would bear its own costs in connection with the demurrer. Counsel for the plaintiffs, Dr. Combe and Mr. Kingdon; for the defendants, Mr. Connolly and Mr. Pitt.