RIGHT TO RATES

Taranaki Daily News, 26 August 1930, Page 4

RIGHT TO RATES

BOROUGH MAY. SELL LAND FAR-REACHING JUDGMENT <’ • i THE CROWN AS MORTGAGEE I • j . JNGLEWOOD FARM INVOLVED Deciding, in effect, that a local authority in order to recover arrears of rates may exercise its rights •, under the Rating Act and sell the land concerned even though it is subject to a first mortgage to the Crown, a reserved judgment from Mr. Justice Blair delivered in New Plymouth yesterday has very im- : portant and far-reaching effects ! throughout the Dominion. Briefly, the Inglewod Borough Council obtained judgment against a discharged soldier who had’ abandoned a farm property while owing three ! r . years’ rates. . Lator the borough de-, . I '' cided to (exercise its powers f of srile;’ j but as the Crown held a first mort- • gage this was objected to. / ■’ z In the form of an. originating sum- : mens the matter was brought for decision by the Crown before the last . sessions of the Supreme Court in New Plymouth, when Mr. C. H. Weston appeared in support of ‘the motion and Mr. L. M. Moes for the Inglewood Borough Council. ■ In the judgment read yesterday by

the registrar (Mr. H. Gilmore Smith) . /His Honour expressed the opinion that ’ the Borough Council was entitled to : : costs, which he fixed as an action for i £341, with an allowance of £lO 10s fori . the second day of hearing. i. The facts were that Marshall, a dis- . ' charged soldier, purchased . a farm of 67 acres in the Borough of Inglewood ’ and on April 13, 1920, he became the . registered proprietor' under the Land. • t Transfer Act. Inglewood is rated on • the unimproved\ value system and.the ! h unimproved valie of farm j < was' £1450. On the date. Marshall's ; title was registered there was. also, , registered a memorandum of mortgage from. Marshall to the Crown. Subsequently a further charge and also a reduction of mortgage were registered ■ i and on September .7, 1920, the charges ! . in favour of the Crown were discharged J and a new mortgage from Marshall to the Crown was registered. This was thestate of the title at the date of hearing , of the case. • " THE FACTS OF THE CASE. His Honour proceeded :-r“Thie. present mortgage secures ;an • advance of £2210 by the Crown, pur- ; suant to the provisions of section 2 of i the Discharged Soldiers Settlement Amendment Act, 1917, and also a further sum of £239 16s od then also owing : by Marshall., The total principal' Sum is ! ' therefore £2449 16 s sd. Payment of j . principal and interest is bn a table basis : i for 36 years. , 'Special .provision; was i ' made as to the! £239 16 s-5<V tlie details : ■ of, which are not material to the point I have to decide. The mortgage contains covenants for insurance, repair, alteration, etc., but the document does not contain any covenant as to payment of rates. I understand that it is the practice of the Lands Department not tb insert in discharged soldier mortgages any covenant, to pay rates. “Marshall’s name appears on the borough rate roll as the owner and occupier of the property and has so appeared since the year 1920. He paid all rates on the property up to and including May 31, 1925. The rates for the years ending March 31, 1926, 192/ and 1923 respectively were duly demanded but not paid and the statutory penalty of 10 per eent. has also accrued thereon. The amount due for these three years is £l9l 12s lOd. “On March 27, 1928, the borough ontained judgment against Marshall for the then overdue rates and..costs, the | total judgment and costs being for i £202 13s Bd. Prior to this, oh November 28, 1927, notice of intention to exercise the power of sale hi the mortgage was. given by the 'Crown to Marshall but no notification! of this. was given to the borough. About December, 1927, .•■..Marshall abandoned the property. In y January, 1928, the borough, .in reply to an inquiry, informed the Lands Department: what the.position was as to overdue rates. In 1928 the Crown made attempts. to sell the property, acting . under its power of sale in the mortgage, but no sale resulted. NO NOTICE OF POSSESSION. “Tlie Crown has never given to the borough notice that it has entered into possession,. but in January, 1928,-the Commissioner of Crown Lands advertised for tenders for the grazing rights of the property. In April, 1928, the Crown let. portion of the grazing at Is 6d per head of stock per week, with a week’s right of termination, and the property was so used up to August, 1928. Other grazing- was aleo let, and in July, 1928, the sheep yards.were let at 5s per week. In September; 1928, the grazing rights of the whole of the property were let at £6 a month terminable on/a.'iribnth’s notice. Further rates totalling £132 9s 5d have accrued due on the property since the judgment. - Formal notice - was, on March 5, 1929, given by the Commissioner of Crown Lands that the Crown was the mortgagee of the property.

“In June, 1929, a certificate of the judgment against the eaid Marshall was forwarded to the registrar of the Supreme Court at New Plymouth, pursuant to section 79 of The Rating Act 1925. On June 20, 1929, notice was received by the Commissioner of Crown Lands from the registrar that the property would be sold or leased by public auction after six months from that date unless the amount of the judgment and interest thereon at 10 per cent, and costa and also all other rate« due on the property were paid prior to the sale or lease. On June 25 a similar notice was given to Marshall. “On July 1, 1929, a further rate demand for the year 1929-30 addressed to Marehall was received by the Commissioner of Crown Lands. The Crown, on June 20, J 929, sold the property to Lile, and, in exercise of the power of sale in the mortgage, transferred the property to Lile, apportionments being made up to September 23, 1929. “The sum of £341 8s 7d is now owing for rates on the property. It was stated in the case that the policy of 4he-

department under the Discharged Soldiers Settlement Act 19.15 and its amendments has been to lend money iu such amounts and on such terms as private institutions would find it impossible to do. The Lands Department has not made any profit on theee transactions but, in fact, has made heavy losses.

THE MAIN QUESTION TO ANSWER.

“A large number of questions have 'been asked in the case, but the main question, the answer to which will answer most of the questions, is whether the Bating Act is binding upon or must Imi respected by the Crown in its capacity as mortgagee of. lands. The question in this case arises under a mortgage given to secure a loan to a discharged soldier, but as the case was argued from (he point of view of prerogatives of the Crown, a decision that the Crown as mortgagee of a discharged soldier can ignore the responsibility for. rates of the mortgaged property, would apply equally to any other property mortgaged to an other Government lending institution. It is not the practice of ail other departments to lend such a large proportion of the value of the property as is the practice in the case of discharged soldiers, but T believe that there is another - department which makes advances to an amount consider-, ably exceeding the margin .required by; private, lenders. ‘ ... ’ j ■ j By s Section 70 of The Rating Act 11)25, all mortgagees of land arej made liable for the rates thereon, so that it is necessary for private lenders when making advances upon lands to make provision to cover this liability and this provision can only be made by taking a covenant from the borrower punctually to pay the rates and by:. requiring such a margin of value as will enable the lender to recover in case of default not only the principal sum advanced but all rates or other outgoings as well. “It will thus be seen that if the Crown can.ignore the provisions of the Rating Act it will be enabled to make higher advances than is possible in the case of ordinary private lending institutions, i because the Crown would be in the advantageous position of doing so at the expense of the‘ ratepayers of , the distinct in which is situated land mortgaged to the Crown. “I have already pointed out that the mortgage given by a discharged soldier does not contain the usual covenant inserted in mortgages requiring the mortgagor to pay the rates. The result of such an omission is that if the soldier mortgagee did not pay. the rates the Crown could not ask him to do so, arid as long as he paid his interest and instalments due to the Crown and otherwise fulfilled the terms of his mortgage the soldier mortgagee could ignore the demands of tlie local body for its rates, and the Crown could not, even if it were anxious to do so, bring any pressure to bear to assist the local body to obtain payment of its rates. Moreover, if the contentions of the Crown raised in this case be sound then the local body, by i reason of the fact that the Crown is I mortgagee of the property, is prevented I from taking the usual steps available to local bodies with respect to overdue>. rates. j

QUESTION OF GREAT IMPORTANCE. . -‘/All -that, the local body could do m such a' case would be to proceed personally against the mortgagor and if the mortgagor’s assets over and above his mortgaged lands were insufficient to enable the local body to recover, then the local body must lose the rates. In the present ease the mortgagor cannot pay the rates, so that the £341 8s 7d owing on the property, if the Crown’s contentions he sound, will be lost to the borough and the amount will have to be found by the remaining ratepayers of the Inglewood borough, “It is well known that rating authorities fix the amount of their sates on the rateable value of rateable properties in their district, and if they must for rat-’ ing purposes treat as liable to be not recovered the rates on all lands mortgaged to the Crown then the result must be that the remaining ratepayers of the district will have themselves to find this money. Moreover a considerable portion of the overdue rates is in respect of special loans secured on the rates of the borough, and portion of the rates may be separate’ rates due for services rendered. “It will thus be seen that this question is of great importance not- Only to the Inglewood borough but to all other local bodies in New Zealand within whose .districts are situated lands mort-. gaged ,to the Crown. If Lire Crown as mortgagee is altogether exempt from those provisions of the Rating Act designed to protect local bodies’ rates, then the result is that to the extent that the Crown makes advances over and above a safe margin sufficient to protect rates, these advances are being made not at the expense of the Crown but at the expense of the .ratepayers. It was specially stated during the argument that the attempt on the part of the Crown to settle soldiers on the land was not a trading venture but was benevolent on the Crown’s part. This is true, but-it is. subject to this qualification, that to the extent that the Crown's benevolence prevents local bodies obtaining their rates, such benevolence is at the expense not of tlie Crown but of the ratepayers. “The main question therefore in this case is whether the Rating Act binds lands mortgaged to the Crown. It is .necessary to appreciate also that the, Inglewood borough is no't asking the Crown to pay Marshall's rates; it is asking only that it be permitted to pursue the remedies given to it by the Rating Act upon Marshall’s land, and to pursue these remedies notwithstanding that the Crow’i has made 'advances secured upon Marshall’s lands.

110 YAL PREROGATIVE CLAIMED. “The reason the pursuit of the boroughs. remedies on Marshall’s lands affects the Crown is that the Crown made advances to Marshall far in excess of the margin that any private lender could lend in view of the rates being a security paramount to a mortgage. The Crown claims that 'by reason of the Royal Prerogative it can ignore or postpone local bodies’ claims to rates and it is thus enabled at the expense of the other ratepayers in the district to make greater advances tha.v An ordinary lender can make. ‘‘lt is clear that Crown lands are not liable to rates, unZ&ss they be privately occupied, whui it is the occupier and not the *Uown who is liable for rates. In the definition of ‘rateable property’ (section 2) in the Act there is specially exempted: ‘Lands vested in His' Majesty of -which there is mot an owner or occupier as herein defined other than His Majesty.’ Moreover, at common law there is no liability on the Crown for rates. The general power •to-rate is conferred upon boroughs by

sections 77 and 78 and the following sections of the Municipal Corporations Act, 1920.

f “There are three kinds of rates, general, separate and special. 'Separate rates ; are levied in respect of services render--1 ed, while special rates are levied as security for loans. There is another ■ term, ‘consolidated rate/ which applies to a consolidation, of two or more of ’ the general, separate, or special rates. Section 97 of the Municipal Corpora- ! lions Act says that, except where other--1 wise specially provided, the Eating Act • applies to all rates, Mr. Weston con--1 tended that a borough council’s power ' to rate was ' conferred by the Municipal Corporations Act and that the Eating Act merely detailed the machinery whereby the general power in, the i Municipal Corporations Act was to be used. “In the case of the Public Trustee I v. Waipawa County in 1921 the Full ’■ Court, referring to provision in ■ the | Counties Act similar to the enabling ; provisions in the Municipal CorporaI tions Act, eaid that the power to make ! rates was derived solely from the Coun- ■ ties Act. I take this to, mean when applied to a borough that' without the { provision in the Municipal Corporations j Act a borough could not i exercise the ' rating powers detailed in the Eating Act. Mr. Weston made this point in order to claim fuller advantage of section 384 of the Municipal Corporations Act. This section says: ‘Except as otherwise specifically provided herein, nothing in this Act or in any regulations or by-laws under this Act, shall bo construed to apply to or shall in any way affect the interest of His Majesty in any property of any kind belonging to or vested in His Majesty.’ i NOT CLAIMED TO BE CROWN LAND “Mr. Weston submitted that the whole power of rating came from the Municipal Corporations Act and that section 384 constituted a bar to any claim by a local body, directly or indirectly, on lands of the Crown. As a matter of fact the borough makes no claim to rate Crown lands, nor does it make any claim to be able to hold the Crown personally liable under section 70 of the Eating Act, Marshall’s land neither belonged to nor was it vested in the Crown, so that section 3<84 has no application to it. If Marshall’s land . belonged to or was vested in the Crown there is ample specific provision in the Eating Act exempting it from rates j without having to resort to an indirect introduction of section 384. But! in any ease the case of the Public Trustee v. Waipawa County decides no more than that the provision in the Counties Act similar to section 384 of the Municipal Corporations Act prevents a local body levying rates on property belonging to or. vested in the King. This land belongs to and is vested in Marshall and 'the only interest the King has in it is that of mortgagee under the Land Transfer Act. Section 102 of that Act provides .that:—*A mortgage under this Act shall take effect as security, but shall not operate a<s a transfer of the estate or interest, so charged.’ “There is ample authority at common law that the Crown is not bound unless expressly stated, and in New Zealand we have an express ■ statutory rule to this effect in section 5, k, of' the Acts Interpretation Act, 1024. . This .provision would therefore clearly forbid the. borough from claiming as againsj; the Crown the benefit of the personal liability for rates imposed by .section 70 of the Rating Act upon mortgagees. . This is not disputed by. the borough, “If I were of the opinion that th.?, borough was claiming rates against -the Crown I would have no difficulty in disposing of this case in favour of the Crown. But it appears to me that the Crown’s claim in this case that it is asked to bear the burden of rates is ill-founded. The only way that it can be suggested that liability for rates' reaches the Crown is in the• event of the amount realised upon a sale in exercise of the power of sale in the mortgage being insufficient to pay the overdue rqtes as well as the principal, interest arid coots secured by the Crown's mortgage/' “Mr. . Weston submits that Crown rights are thus affected .in the two following ways;: —(a) The Crown’s right to exemption from rates; (b) the Crown’s .right to priority of payment; in any liquidation. When the position is fully examined it will be seen that neither of the above submissions is tenable when it is remembered that the Crown is . a mere mortgagee and these rates are owing-by the mortgagor. It is clear that the Crown is 'exempt from payment of gate's .and there .is ample authority for- the proposition that Crown debts take priority in any liquidA'tibh.’”* • ' . '

THE CROWN AND THE BORQI'GH. His Honour said that this latter doctrine had been fully discussed by Mr. Justice Alpers in the case of the Tasman Fruit Packing Association versus the King. Mr. Alpers had quoted from Rex versus Wells as follows: —“I take it to be any incontrovertible rule of law that when the King’s and the subject’s title concur the King shall be preferred.” Mr. Justice Blair commented that this applied in the Tasman case where the King and a subject were both unsecured creditors and were otherwise of equal priority.. “But,” His Honour continued,, “as will be presently seen the Crown as. mortgagee of . a property upon which there are overdue rates cannot be said to have • a title to the amount of overdue rates that ‘concurs’ with the borough’s claim. If the Crown had a claim equal to that of the borough the Crown’s prerogative of priority would apply. “To appreciate the true position it is necessary first to consider what Marshall’s position was when he,,'executed the mortgage in : favour of . the Crown. - He was .owner and occupier of the land, and the land was unquestionably ‘rateable property.’ Section 67 of. the Rating Act says, that an occupier, is primarily . liable for rates, and section 70 imposes liability .also on ( owners, or owners of an interest, and on mortgagees. .. “Section 78 enacts that when a judgment for rates is recorded against land no further instrument shall be registered against that land until the judgment is satisfied. Section 79 provides for the forwarding to the Supreme Court of a certificate of judgment for rates and for the registrar notifying all persons interested in the property that the property will be sold or leased unless] the judgment be satisfied. ‘‘This course was taken by the borough with the judgment it obtained against Marshall. After eix months the registrar may cause the property to be sold or leased unless the amount of judgment and costs and rates up to date and charges are paid. The proceeds of this execution are applicable, firstly in payment of the rates, . charges, . etc., «econdly> in payment ;of any eiicum-.. brance on the property, and the balance to any person.entitled thereto. The Act. also contains appropriate for. the'registrar to complete the sale or . lease of the property. and for the registration of instruments. Section’ 82 makes. special provision in the case of reserves. Section 84 deals specially with occupied Crown lands.

"DORMANT STATUTORY CHARGE.” “When the Crown took a mortgage from Marshall the land: was subject to the Rating Act and it was subject also to what may be called, a dormant statutory charge liable at any time to spring into life in the event of the failure by Marshall to discharge; his statutory rating liabilities. Marshall's position, therefore, was that the property he had to mortgage was already subject to statutory liabilities, and -I- can conceive of no method whereby Marshall could free his land from these liabilities without ceasing to be owner and occupier, nor. can I conceive any method whereby Marshall could confer on any mortgagee, be the mortgagee the Crown or a mere private lender, a higher title in, the,, land .than-.,'.Marshall, himself, had. ........ “If at the time Marshall executed the mortgage to the Crown tin's land, had already been subject to a prior mortgage <to.,a private • person, it could not be .^suggested, that-., the Crown’s mortgage .wonl.d take, priority to that private person’s mortgage. The Crown’s priority comes into operation only when its title ‘concurs.’ The statutory charge for rates though inchoate is certainly as high if not higher than an ordinary mortgage. If Marshall, before the mortgage to the Crown, had executed in favour of the borough a deed of covenant to pay rates, accompanied with a charge and powers, identical with those in the Rating Act, the Crown taking a mortgage subsequent to such a deed would most certainly have been postponed to the rights of.the borough secured bv the deed of covenant.

‘‘l cannot see that the borongliV rights’arc any less beeanise of the fact that they are statutory. The Crown’s contention seems to me necessarily to involve the negation of this. The Crown’s contention really involves the submission that land mortgaged to zthe jCr.own is not liable for ratios... If .seems; to me that the Crown is driven to this. Either the land .is ..subject . to. rates or .it. is not. Tf the land io subject to then the provisions •of the'; Rating Act for enforcing payment against the laud must remain. ,‘Tf land mortgaged.. to. the.. £rois dot. liable for rates then-, a remarkable

i position'Would arise in. the'-ease of the j Crowd taking a second mortgage. The j first . mortgagee being only a. subject would- be’ personally liable for rates, I and his mortgage would be subject to the local authority’s charge for rates. If'.the registering of a second mortgage to. the Crown would free the land from liability, to rates,, this ..would enure •to the benefit of.the first mortgagee. . If .it did not enure to the benefit of the .first mortgagee, then he, by virtue of his mortgage, could obtain payment of his rates and this would protanto involve a so-called forfeiture of the Crown’s property because the Crown’s' rights as second mortgagee are postponed to the rights of the firnt mortgagee, CROWN’S. CONTENTION ANSA HKW “Tlie untenability of the Crown’s don-, tention .becomes apparent when we assume a: case of a surplus over, .and above the amount of principal, interest and costs due. on, the. Crown’s mortgage after ■exercise, of ppw.er. of sale, : If the Crown’s .contention., that a mortgage to the Crown makes rates irrecoverable.be upheld, then what is to happen, to the surplus, remaining after satisfying the whole Crown debt? If there were ample surplus to pay rates this surplus, 1 on the Crown’s contention, is payable not towards rates but must' be payable to the mortgagor. This test makes clear that the Crown’s contention really amounts to a claim , for exemption on behalf of the mortgagor and not on behalf of the Crown. “The real answer to the Crown's claim is that Marshall could not give to the Crown a mortgage for more than he had. Marshall’s property ’ when he mortgaged it was subject to an inchoate statutory charge and I can find nothing in the Rating Act to say that a ratepayer by executing a mortgage .to the Crown, whether it be a first, second, or any other mortgage, can thereby free his land from it.s statutory liabili-; ties'.

“Mr. Weston contends that the Crown’s property could be forfeited if the power .of .sale in section 79 of the Rating Act could . be,, exerejsed by the borough. The .answer to this is that the Crown ..knew when, it .took, a mortgage of the property that ; tfie i borough had all the rights provided by section 79. .It took its mortgage subject - to .this,... It; cannot be claimed, .that tlie . borough is forfeiting Crown, property. The Crown never acquired from Marshall more than Marshall had to give and-the Crown cannot call it a forfei- 1 lure when the. propcrty it took a charge 1 over is not sufficient to pay prior charges.. If it could do this it could do the same in the case of a first mortgagee.” . , , ‘ . . r His. Honour recalled that Buckingham’s case had been cited as an authority on this phase of the question, but ho could not see how it was helpful. “It decides,”, he said, “that a bill of sale, good at. common law. but invalid under . the.. Chattels Transfer -Act, is nevertheless, a good security because given to the Crown,, which was not bound by the requirements of the Chattels Transfer Act.. Even if the Crown’s ■ security, in Buckingham’s; case.had not | been held valid the Crown could still I have claimed priority by virtue of its .prerogative., Iq my,opinion.. the Crown Lin its: capacity as mortgagce,.o.f ’a sub- | ject-’s;.property ;(with..the .exception of .liability milder, section 70). .Is really in no .better, position, as. to .rates, on the . mortgaged premises than- an ordinary private lender. Rates become a first charge on a mortgaged property and this is .so Ju jny opinion,, .even where the mortgagee is the Crown.

CAXXOT ACQUIRE A BETTER TITLE “If the Crown takes a mortgage on property it cannot acquire .from the mortgagor a better title than the mortgagor has to give. The mortgage, if taken from a person or corporation not exempt fr-ora rates, is a mortgage on 'rateable property,’ and such mortgage in necessarily taken subject to all the burdens that lie upon rateable-property. But the personal liability imposed on mortgagees, by section 60 does not affect the Crown because the Crown is not specially named. There is ’no inconsistency in treating the Crown’s prerogative as still applicable ,to a . statutory provision imposing personal liability, while holding that the . property itself io subject to statutory charges imposed,,on the : .owper of the ; property. The above,. I thiqk, answers the real question argued in this .case,.. "At first sight ,it .would .s-eem that section’• 14. of the Discharged Soldiers’ Settlement Amendment Act, 1921-22, paragraphs 1 and 2, could be -used as an answer to.the view I have, just ex- . It reads, as follows:— 14 (1)

Where any estate or interest in land is subject to a mortgage to His Majesty as security for an advance made under section 6of the principal 4 c t or section - - 2 of the Discharged Soldiers’ Settlement Amendment Act, 1917, or under the provisions of this act, no- person shalf }>o entitled to convey, transfer, assign, under-let, or x ‘in any other way dispose in whole or in part of his interest in that land save with the consent of the Minister previously obtained. (2) No district land registrar shall register any instrument purporting to convey, transfer, assign, under-let, or otherwise dispose of any estate or interest in such land save on production" of - a certificate signed by the Minister that he has consented to such conveyance, transfer, assignment, sub-lease, or other disposition.’ “For the purpose of transferring, assigning or under-letting to enforce payment of rates under the 'Rating Act in the case of lands subject to discharged soldiers’ mortgages it may he that the consent of the Minister would be necessary. The -section is • really designed to prevent .the ‘ soldier- himself transferring without M,ini&ter’p cQbsent, .and' a question could arise. whether it has any application (.0 pei'Lns holding charges prior ' t-6 ! the charge ifr fdA/oti’iof the King-.' But; even if it does apply to the case of a local -body attempting: to enforce payment of rates, I apprehend the Minister would not refuse his consent for the purpose of securing an advantage to • the Crown and not an advantage to the soldier. But even if the Minister were to refuse or defer his consent this would not destroy but only defer the local body’s‘rights. ■,

POSITION OF SPECIAL RATES. “Moreover, section 78 of the Rating Act, 1925, provides that after a judgment for rates is. recorded on the title no further dealings can .be registered. Section 14 would not prevent the recording of a judgment for rates. .“Mr. Moss, on behalf, qf the borough, ■'also addressed to me an argument dealing with the case of special rates which, by reason of the fact that they are security for .loans, -are in a stronger position than (general rates. A considerable portion of Marshall’s overdue rates ■ are special rates. As I have come to a . conclusion, favourable to Mr. Moss’s contentions as to rates generally it is jjjo.t- necessary .for -me specially to refer ‘’to’ the position'Jof •special - fates. Section 123 of The Local Bodies Loans Act, 1926, imposes on the Crown liability for special rates on land subject to such rates, xvhich land is acquired by the Crown and as to which there is no occupier.' It may be that the attitude of the department as- to taking over from Marshall may have been to some extent affected by the existence of this provision.

“No special argument was addressed, to me as to whether the Crown ever ceased to be a mere mortgagee of this property. It would appear from the facts stated.in. the case-that the- Gi'owii never acquired this property from Marshall. Unless the Crown could show that at some time during the period for which rates are claimed Marshall’s pro- :. party belonged to or was vested in the '.King, then in my view t’ ■ borough’s’ ■’rights to its charge on the property ;remain. I have already indicated that.the holding of,-a mortgage ’under the ’.Land Transfer Act- doOs not ’make this land either belong to or vest in the 7 Ki ng. “The facts a,s stated in the cane show ..•that, ajt most, grazing rights on a monthly tenancy basis were the utmost ’use made of the land after,.Marshall,, left it -until,’"it was sold to Lile. The holder of such grazing rights is not an ‘occupier’ within the definition of the .Rating Act because, he had a tenancy for less than six months certain. The Crown may or may not at one time hate been ■ a mortgagee in possession. This ques- ' bion was not raised before me; nor was . the question as to whether a mortgagee in possession is an ‘occupier’. If the Crown were an occupier for come portion of’ the period covered by the borough’s claim for - rates the question would arise whether for such period any rates could be claimed.

“The specific answer To .such of .the questions in the case as were argued before me can be gathered - from the judgment. If the parties cannot agreeas to the form of these answers .and the judgment to be entered,.the matter . can be submitted to me for settlement. Nothing was said, to me on the question of costs. Unless the parties have otherwise arranged I think the borough is' ;.entitled to eoste. Thqugh in form ’an . originating mimmons, I think this case vis one where-costs should be on ’the basis of an ordinary action. I therefore I. fix costs as on the basis of an action Iqlaiming £341, with , ,alte.w^.ee A IW for second