SUPREME COURT.

Taranaki Daily News, Volume XXXXV, Issue 72, 12 March 1903, Page 2

SUPREME COURT.

Wednesday, 11th March. 1903 —Before His Honor, Mr Justice Oonolly. VALIDATION OftDER. This was an application for a deorie to set aside a validation order in respect to certain lands in the matter of ,he Public Trustee v. Humphries. Mr Kerr fot the Public Trustee, and Mr T, Sbailor Weston, of Skerrett, | VVyllieand v7eston for Mr Humphries. I Argument ensued as to who should begin. His Honor said it appeared to him that Mr Kerr should state what he obj ?cted to.

Mr Weston said the validation order had already been set aside by statute. His learned friend tiad attached first a mortgage deed, and second a transfer deed.

Mr Kerr said tbat was so, and that they had agreed upon pirapraph 7. Mr Weston then opened his case, and add thesa reserves were sat aside in 1856, and in 1882 they became vested in the Public Trustee. I> March 1887, an Order-in-Oouncil was made to ascertain the position, and individualist) tha titles. The Court sat, and orders we:« made vesting the lands in the natives f< und to be entitle 1 to chem. In 1894, tbe Public Trustee caveated these titles. In respect to s me of tha caveats, it had biin held that the order of the Public Trustee was ultra vires. When tha caveat was put on in 1894, some of tbe titles bad been transferred and duly registered, and some were unregistered. Th~> deed of 1893 hid bsen partly registered and in some casej agreements for sal > hid been Poke Mako.ire v. Public Trustee, a special case, it was held tbat the 1887 order was ultra vires. In 1895 an Act was pissed making special provision for this case, and in 1896 an addition was made enabling i the orders to be i>sued. A. sp cial easel was stated od the clause, and Judge Denniston ruled that it did not affect the case of Te Poke Makaore. Later on in the cases of Solicitor General v. Makotini and Ooid n v. Stanford, in Apri 1 , 1898, Judge Oonolly upheld the orders, the position then b3ing th.t sales wdre stopped. The natives being impecunious could not enforce the orders. Mr Humphries and others intorasted petitioned the Hous? and the Reserves and Other Lauds Disposal Act was passed.

His Honor: What is the short ti'le.

Mr Weston: It has none; it is commonly known as "The Washing Up Act."

His Honor: Oh, yes, one of those Acts; in my time they were called the Jobs and Swindles Act.

Mr Weston then detailed tho steps taken by hid client 10 take advantage of the Act of 1901. In 1902 another Act was passed referring the matter to the Supreme Court

His Honor and it was a strange thing to thro* this duty on the Supreme Court. Ha had always held that the Validation Court was equal to the Supreoae Um:t, and their decisions sluuld be reviewed by the Court of Appeal. Mr Weston said the Act of 1902 was tushed through without his client having an opportunity of appearing bo fore the Na>iva Affairs Committee.

His Honor: Will my decision be appealed against Mr Weston said that was a very open question. His Honor: If I thought so I would have it moved into the Court of Appeal. Mr Weston s»id he was quite agreeable to this course. After a few further remarks Mr Weston paid his position was he had got his Orders; but another point was that Mr Humphi ies had agreed to ceH but had been unable t > complex, owing to the caveat, by legistraMon.

His Honor said it had be°n decided that the execution of a title was nothing till it was regis f ered. Mr Kerr said that was bis point, and the title was vested in the Public Trustee. In reply to his Honor, Mr Kerr suid he relied on subsequent legislation. Mr Weston s id the Validation Court had to be satitfiod of two thing* —that proper payments hal been made, and that the transaction was fir and reasonab'e, His Honor thought the scope of the Act was much wider, and he could not take anything for granted and must inquire into the whole matter. 1 Mr Weston said that in that case ho should prefer going to the Court of Appeal. His Honor said every Act pasted regarding native matters only made confusion worse confounded. Mr Wnfiton had said why was the Aot of 1891 pissed. He could reply by saying why whs the Act of 1892 passed. Hia Honor said as regards the c surt being limited to the bona fides, he was clearly against Mr Weston. The q ies ion was then gone through and the matt;r of eyidencs settled, and it wis deoidtd to take evidence on these points subj c to the case going to the Ocurt of Ap; e<l.

Me VVestcn s%id he would like to point i u 1 : that b>th documents bvf 're his Homr bal be>n twioe approved, ■<nd wire coming before his Honor for r lin tbii'il lime. Mr WeS'On c<lled

Reginald Bayly, Assistant District, Registrar for the Lvd District of N'ev Plymouth, produced mortgage Kavira'.eta and «no-her to Hmnphtif, dited 7h March, 1893, mid transfers of Te Pokom .koa: e to Humph'i s, dated ? 896, a'sa tr nsfers under power of salo; also validation court order, dated 12th April, 1902, and register 12th May, 1902. Mr Kerr ndmitt.-d tha*. part of the U';d in the mortage was said by Humphries for a valuable consideration and the transfer af'ei appeal to Validation Court, and before <•uvtv.it was lodged.

To Mr Kerr: Havn produced the mortgage and transfers, and tho validation order. Mr Weston here tendered t.ho filtn rof-pe:ting the lands and orders of rhe Land Court, and the minutes of the evidence in the Land Court before Judge Ba'eman, and notes if Chiif Justica McDonald. His Honor said he was not going t" look at a lot of papers. He remembered ouo case where papers were put in which would fill a wbei-lbirrow. He nevei' looked at oae of them, but give a decision which was appenle' trains; and upheld by the Court of Appeal. S, Mr Weston said they hal decided to ■'•ke evi ionce aid then goto the o>un. f Appeil, a- d <l.e papers would bs i' :und important.

His Honor siid he had a right to object to cumboring the ciso wiih papets.

Mr Kerr said some of the papers were important as showing the identity of the land.

His Honor sat! lio supposed bs oould uot refuse the papers, but he should uot look at them. They might M well g) back to 1855. He bad to oonaider the matter himself. He had nothing to do with Judge Batsman's opinion, or Mr Stanford's opinion. He oould only deal with the validation oourt'a decision.

Mr Weston said he would leavs it at that, and call F. P. Co. kill, who said he was a land find commission asent, residing in New Plymouth. Had been in business 22 years in New Plymouth. Was wall acquainted with values of land in New Plymouth. Had a general knowledge of the native names in question. In 1896 £4 to £5 per acre for the undivided half share would be fair value f >: Purakau, for ttatahangae the value would be a little more.

To Mr Kerr: The present value of the undivid d interest is three times as much us in 1896. Ratahaogas has increased still more. It it now regarded as suburban land. Had np conversation in 1886 with Mr Humphries regarding a sum of £6O or £7O owing to him by a Maori. Samuel Hill, Government Valuer, of 1 hii distrio% said he had lived in the from boyhood. Knew the native revive Purakau and Rata-hang-te. Half the value of the fee simple in 1886 would be about £4 10s per acre. It is not everybody who would buy an undivided interest. The Im I had a ion of gone on it. Dj not consider Ratahanftae so valuable, A third in'er. st in 1896 would be worth about £3 10s. To Mr Kerr: The land hag trebled i i value since 1886; R\tahang*e is not more acosmble to tern. Know Ripiu Block. Oaunot say whether an d'd interest in it sold in 1805 f; r£B 10s an acre. •

William Humphries, wine and cpirit merchant in New Plymouth, formerly a farmer, said he took a mortgage from Kirira Heta and anothtr in 1893 for £2OO and further advanoe*. Tbs i mortgaga was confirmed by Mr Stewart, Registrar. I furnished tbs Maoris with a statement of accounts, showing £l5O flue, on Juncr 25'Ji, 1892, and it was acknowledged by the natives, the balanoe due and mall items bringing the t>t*l to £2ll. I was toting as attorney for four natives; can proauot pow-r of attorney da'ed Sth July, 1892. I wee trying to sell sone land for them. Oan produce aocounts showing transactions between us to date. When Hie hud was sold by the Regis* trjr over £3OO was owing; £IOO was s : cured to me by bill of sale. Ths transfer of 8 h December, 1896, was for a third interest in half rhare in Purakau, a ninth share in Puiti, and 10 acres Hinuhia. For the bnl I paid them sums of £67 9s 6d, £7 9s 61, £69, and £9O, for which recap's are produced. Then is also produced an authority to spend £9O in the purchase of land for the natives referred to. I also paid them a further sum of £lO, of this money £45 was paid for section 113, Huhia, the property tax value at thd time. J r.ivj £4 an acre for Katuongi in 1894. Tho land adjoining it was Fold at auction with clew title and undivided in'ereste by Newton King for £6. Paid £4 for Purakau. Had to pay Native Land Duty and rates on Ratahanga", it was £l7 13a4d, and oq Purakau £l3 lis. This brought the price up to £5 an acre. Mr Kerr admitted there was no in* accuracy of consideration, if it bad hern paid, but denied pigment. His Hooor said then ho was afraid Mr Kerr had a very bad oiae. Examination continued: The £9O was returned by the natives to me for the purpose state!. I purchased ths land for the natives, and the statsment produced shows how the money was expended. The reason I did not ooxnpleto was that a caveat was lodged. Paid £32 whea the document waa signed, and have since paid tho natives tho whole o f the balanoe. Am pro* pared to account to the natives, and furnish a statement of accounts. My books are iu Court, and can bo produced. At the time I took the mortgage, the natives had not certificates (f title for ail the lands included in the mortgage. I relied on the Native Land Court order, urder the Ontario-Council, March, 1897 Toe transfer was signed n 1896, but the contract was mads in 1894. When I made the contract in 1894, I relied on Orders-in Council previously made. Caveat waa lodged retort I got my transfer. I petitioned Parliament, acd an Act was passed which 1 considered validated the order. The Chief Judge of the Native Land Court told me this was all that was rrq'iiredto compete my title. Subsequently, a case was stated whioh decided that these Acts did not validate. Have known Raiomiti all his life. He worked on my farm sight years ago. In 1894, Hone sold soma land to Mr Alfred George at liotorua. An inquiry was made by Mr Stewart, Trust Commissioner, as to his age. I was present as agent for George. The Commissioner satisfied himself, after taking evidence, that he was of fall ago than, Waiomaka waa supposed to b i 21 acres, but by actual survey it was <>nly seven acre?. Had the tides scribed by Mr Edwarda, now Judge Edwards, who advised they were good. When I took the mortgage, 1 thought 'here was 21 acres.

The Court adjourned for lusob. On the Ouurc resuming at 2 p.m, Mr Humphries produced the agreement b#wren Sole an! Btyly, July, 1892, alw July 26, transfer 1892. The dooument wan put in hof' re the cavuat was lodged n August, 1892. By Mr Keir: Never thought of giving you a s'atetnenr of aooount. Il wag in the bands of my aoltcitar. Cannot nay what the Maoris owed M in 1887 without the boohs. The £9O is not included in the ntvement o( ucuruots pi educed, Tne £lB 10s is in'erest, on The mortgage. Oar not tell J.ow m:ich esoh individual native owed me. They jo n'.ly »ud saverally ackuowlodge owing me tbe £IOO men* tioi el in the rereip'. I in<j have stated to the Trust Commissioner th:it the 'of tbe money had b*en paid over to the n&livis. All the docu'uenta now here were produced, I believe one of the natifM wan ab'eut and not before the Trust. Commissioner's Court. I o*nnot tay if Te Pohi waa present. I admit that tbe cheque given totHp»> nativis was handid back to m». Tke amount of the cheque handed back to me wan £9O. 1 nw to buy laud with it but did not do so for f be reasons »tated. It is absolutely falsa that the consideration for tbe transfer was that I should build th>) natives a fourroomed houso on tbe Reserve at Smart Road for tbesn natives. Richmond and Hutch An weie the solicitors who pre* p < ted the transfer. Did not know at the time tint by the Act of 1895 no i.ative could dispeso of bis in teres in % reserve without the consent of the (Continued, onpagt 4,}

PuMic Trustee. Believed the 189.' Act, which was hostile to him, wa tared by thß Act of 1896. Knew »ha Te Poke Mofeoarelfed "given Richmeni and Hutchen ics'ructions to take pro ceedings against Judge D.iv y, of thi Native Lands Court. Had not tb« agreement mode wi f h Mokoare in 1894 Tbe native would not be a minor then. Mr Kerr produced an order of the Native Linda Oourt in 1887; the mtive'a age was stated as 11. Mr Weston produced another order of the same date in which the native's age was stated as 14. His Honor: If one order is to be , taken is evidence of age then the other mas': be so taken, and a? they are con ' tradietoiv IcantSka no notice of them Witness : The only reasm be had not teen able to register was that be had never been able to get tbe necessary surveys relating to the partitions , completed.«. • ' Joseph J. Freetb, licensed interpreter, testified to his signature to three documents, viz., a receipt for .£57 9s 6d

liy Makoari, a receipt for £69 by Pohi J Te KekeJio, and an authority signed by both natives to Humpherios to apply " £9O [or certain a. All those documents were explained to the natives in the Maori language, and perfectly understood by them before their marks were affixed an! attesol by me. : Alm witnessed the execution of the ttansfer of Bth December, 1896, which was thoroughly explained to and understood by the natives before being signed. ' ' ' . Divid Hutchen, solicitor, said he had some experience of Native Land Court work. When the transfer of 1896 was made, „he relied on (he amending statutes of 1895 and 1896 which it : was supposed gave validity to dealing*. * These acts ware obtained chiefly on the petition of Humphries. It was not 'until Mr Justice Danniston's decision

~ gome time after than any doubt was "Idtas to the validation. Orders by f : ' the Native Land Court are not issued I until after survey is completed and > passed by the Court, but take effect

from the date of the order. To Mr Kerr: Tin. orders do not " issue till completed, but take eff<?cs !* from the sitting of the Court. ' - HisJSonor said he did not under«tstfif what this witness was bsing £ examined for. : Witness: Had nothing to do with - Mr Richmond's firm when the applicav turn for a mandamus was made in re- | lation to Judge Davey.

<- To Mr Weston: The order must &' have been issued when the transfer was % signed, as it bore tbe usual official folio and number figures ? To Mr -Kerr: Did not kcow on te what date the agreement was alleged to have been made, fe. To lb Weston: Attended before Mr jf Stanford when the transfer was conIt firmed. The question of Hone's age I f was then gone into, and Mr Stanford & was satisfied that Hone was of age. p- To Mr Kerr: Could not siy whether IT the natives in question were present, g. bat thought it most likely bo'h were I* present, | franoes dark said she first knew HoneTe Kelgehu close on 21 years ago. Ha was then living at Ratahanga°, and £ from his appearance wis the 1) or 10 §.■ yean old. Was ask»d by the Judge of Validation Court to see Hone's jC' fester-mother and get what information E she could out of her, as she was bed- &- ridden. W- His Honor ruled that the details of eg the interview could not' ba received. K". To Mr Kerr: Judged the toys age F-by his appearance. t . Manu Taipua, a native, whose evidencr was interpreted by Mr Freetb, she lived at Puketotara, and knew ®"Hone Te Kekehu. Did not know how j p long she had known him. Could not ;'say how long since he was born, but it before her son Te Atu* wasborn. s'The date of the lattera birth was in a book. & Fo Mr Kerr: Te Atua was younger thairHene. To Mr Weston: Hone was just ba- >, sinning to walk when Te Atua was Thorn.

Te Atua, a native living at Pukesaid be was probably 29 years 5? of age, or more. Hone Te Kekehu *■ was older than witness. Could not say Slow much, but he was bigger and Stronger. II His Honor intimated to Mr Weston ' that the proof of Hone's age lay with •the other side. -•. F. W. Richmond, solicitor, said he *Mted for Humphrits in relation to a ; mortgage from two natives to Humpbriee. The mortgage wae registered •gainst some lands, but not against others. The reason why it was not registered against all the land was due to incompleteness of surveys. To Mr Kerr: His firm prepared a transfer from native) to Humphries in JBB6. Mr Hutchen hid charge of the 'matter. Mr Kerr said that after his Honor's observations as to the evidence of native witnesses, he did not propose to J estll any. He oiled i Reginald Bayly, who produced documents shewing the lands in question were vested in the Public Trustee, v z., R&tahang&e, 47 acres by certificate, dated 3rd February, 1 "02; Purakau, 47 cr.s, by certificite jf title, dited 2nd May, 1900; Raeom <e, 4 acres 29 perthes, Fitzcoy district, b v certificate, dated 4th May, 1901. •To Mr Weston: The certificates produced were handed to him for cansellation. Had the surveys been compete hj? would have issued the title to lumphrie3 pursuant to the order of die Validation Court, but btfote the title could be issued the Act of last jpnsion hung the matter up. ITo Mr Kerr: A caveat was lodged ly the District Land Registrar on 9sh foptembsr, 1902, against the issue of itle to Humphries in respect of the U»ds in question, A previous caveat ad been lodged by the Registrar on Ith August, 1902, on behalf of the Kief Judge of the Native Land Court, at withdrawn on the same date as the w£ caveat was lodged. P""am K. Skinner, Government r, said there were two distinct comprised in Raeomete. The oad went between them, being indary line of the Hua and »ibo districts. I [r Weston: The deficiency in j was due to the river having! its course and tho title being. . old survey of 1847. J

i Mr Kerr intimated that in view of the evidence the charge of fraud against Humphries was withdrawn. His Honor: Then what is left? Mr Heir: There was the question as to whether Uaeomete was included in the mortgage and whether Hone was of age. j Mr Weston was glad the question of fraud was withdrawn, as he was convinced that but for the charge of fraud the amending Act of 1902 would not . have been passed. His Honor said that with regard to t the evidence in the Validation Court . he had not that evidence before him. i He considered that the matters which ; remained to be decided were trivial ; icd by some little concessions on both 1 I sides a sett'emeni might be arrived at. | Mr Weston w«s prepared to submit i to the Public Ti us tie a full statemant J i of accounts. I

His Honor said no accounts were asked for. He suggested that Mr Humphries should give up part of section No. 6, and if these concessions were made he should be justified in recommending that the decree should not be set aside.

The parties then adjourned with counsel with a view to effect a settlement.

On returning to Court it was announced that till imputations had been withdrawn, and it was admitted that the consideration was adequate, the objections to Nos. I to 5 and No. 8 w&re withdrawn. As to No; 6 the whole laid Wits to remain in the mortgage and cOj to be redeemed until after the next s ssion of Parliament, As to No. 7 the small piece of land leading to the graves, about four square yards, was to be given up. Mr Weston suggested that His Honor should make an order dismissing the application. His Honor said that as to No. 7 the decree would be varied so as to exclude the area of tha graves from the mortgage and transfer and except as to that variation the mortgage and transfer would stand. Th«re would be no order, as to costs.

The effect of the arrangement is as follwdJudge Bateman's Validation Court order is reduced in Purakau by three-eigh hs of .the area, and in Ratahangae by one-sixth of the area, and the Native reserve, No. 23, Raiomiti, by : three-fourtlis of the area. The beneficiaries will get the benefit; of sales of section 158 Hua. Mr Humphries is to receive from interest in these anythicg due to bim under his mortgage advance. Statements of accoun's lo be furnished within three months.

BAILY v. VXNOBST AND WALSH. The settlement arrived at in this case on Tuesday was as follows : 1. Judgment to be entered for plaintiff for £3OO without costs, as damages for the defendants breach of contract; ana any amendments of tbe statement of claim that may be necessary to enable this judgment to be entered j shall be made. ' 2. The sum of £235 9s 3d in Mr Walsh's hands shall be paid to the plaintiff, wh-:reout he will undertake to pay Mr Hiret £SO. 3. All costs of the interpleader summons to be paid by the plaintiff out of the £3OO, such coats to te ascertained by the Oourf. 4. All necessary documents to effectually rescind the contract of sale to i Vincent, and to transfer the land mentioned in the statement of claim shall be executed by the defendant; whenever called upon by plaintiff so to do. Mr Shailer Weston (Skorrett, Wyllie and Weston), irstrueU-d by Mr HalliWell, Hawera, appeared for the plaintiff, and Mr T. S. Weston, sin. (Weston and Weston), appeared for the defendant Walsh, the defendant Vincent being unrepresented.