UNSUCCESSFUL CLAIM

Waipa Post, Volume 41, Issue 3187, 12 August 1930, Page 8

UNSUCCESSFUL CLAIM

POSSESSION OF THREE HORSES. MAGISTRATE’S RESERVED JUDGMENT. - At last month’s sitting of Te Awamutu Magistrate’s Court, the Otoig hanga Finance Company, Ltd., claim irtim J. A. Maxwell, of Te Awamutu, Possession of three horses or their alleged value (£6O), it being admitted that demand had been made and delivery refused. Mr S. S.. Preston appeared for defendant, and Mr N. Johnson for plaintiff.

After hearing considerable evidence the magistrate (Mr W. Wilson) reserved judgment. This judpnent was given yesterday morning at a special fitting of the Court, when the clerk (Mr J. Forsyth) read the magistrate s decision, as follows: ~ The proved circumstances are these. One Francis" Blakeborough, a farmer, being desirous of completing a bargfin which he had made for the purchase of 12 cows, borrowed a sufficient sum of money for that purpose from the plaintiff company, and gave an instrument by way of security to the company for the amount of the advance and to secure future advances. The instrument was execut- .. ed on 9th August, 1929. 0n date the 12 cows were on the vendor s / - -farm, and the next day they were placed on the farm lands described • in the schedule to the instrument. The t: only other stock in the schedule are l f dark bay gelding, 1 Jersey bull, and % l sow. They were on the property 5 when the instrument was signed. It •• was .’the grantor’s intention to buy more cows, and such intention was a known to the plaintiff company. To L do so the company made him further ' ' advances, and the acquired cows and >:■; another bull were brought on to the y' farm. He also bought the three horses . */"in respect iof which this action is « -brought, and they were placed on the

piroperty. In January, 1930, the grantor of! the instrument had domestic ' trouble, and decided to leave New Zealand. He brought the three horses to Te Awamutu and sold them to defendant. Defendant inquired whether they were subject bill of sale, and was told that;: they were _ not. . They were not branded; I am satisfied that the defendant was a bona fide purchaser for’ - value without notice of the instrument. Blakeborough afterwards wrote to the plaintiff company and told it to come and take the cattle and sell them, which course the company followed. The defence alleges three grounds of defeasance against the instrument: 1. That The document is void because the witness is disqualified from attesting by reason of being the. secretary of the grantee i#... company ,its solicitor, and a shareholder. :2. That the document is not duly registered in that the place of its execution is not stated in the affidavit • verifying the registered copy. 3. That there is not any covenant in the instrument to brand horses with a specified brand. I do not think that the attestation is such as to make void the instrument. Primarily at common law no deed required witnessing, and it is only . Where statutes have imposed the obligation that it has become necessary. The Chattels Transfer Act, 1924, section 20, provides that an instrument “ shall be attested by at least one witness, who shall add to his signature his residence and occupation.” The cases quoted do not carry the matter further; they are only authorities to show that a party to a deed may not himself attest the signature of another party, nor may the appointee under a proxy attest the ' signature appointing him. It seems to me to be carrying caution too far to rule that the secretary and the Solicitor of a company (who are but paid officers of a company) should be disqualified from witnessing the signature lof a party to a document if the company be also a party thereto. The fact that a shareholder has witnessed. a signature might have some significance if fraud were alleged, but further than that I do not think it affects the matter. The second defence must also fail. It is true that in the schedule to the Act the form of affidavit verifying the execution states in paragraph) 3, “ (state place where instrument executed) but I can find no Treason in principle "why such a statement is necessary or of importance. I think I must consider the registration as having been effected. The omission is of a fact which does not seem to go to the substance of the matter. It is significant that the place iof execution is not required to be entered in the register. Section 13 of the Act makes provision for rectification of a defective registration, but I think that the words, “ any other matter,” in that section must be construed as ejusdem generis with what precedes them—that is, with the name, residence, and occupation of any person required to be stated. I cannot think thaT the omission of a fact immaterial to the validity of the instrument, and which need not be recorded on the register, should be deemed to be included in the phrase. Although section 13 is somewhat more comprehensive than the corresponding section in the English Act, which only provides for the rectification of the register, the intention is the same, namely, that any defect due to inadvertence and which might prejudicially affect a person dealing bona fide with the chattels can be set right on a judge’s order. The omission in this case is not |of such a nature. The third defence involves the interpretation of the branding covenant contained in the instrument, which is in the following terms: “ 3. That the grantor * will brand earmark and mark ’ the stock comprised in the first schedule hereto all natural increase Of the same and all stock acquired by the grantor in addition thereto or substitution therfor and brought upon the land mentioned in the second schedule hereto or any land Worked by the grantor in conjunction therewith and will use for qattle branding purposes the brand.” The defendant contends that the specified brand is only intended for the “ cattle ” in the ordinary meaning of that word—that is, bovine beasts—and that there is no specified brand for the horse then on the property or for any that might be

added thereto. Ttye document dis- , plays a want of care in drafting, in the operative part it purports to assign “ all the stock and chattels m the schedule, although no chattels are set out. I see no reason for placing any other meaning on-the word cattle ” than its primary meaning of domesticated bovine animals. The use of the word “ stock ” in the early part of the covenant has obviously been used in a very loose fashion, for it was never intended to ear-mark anything, or is any form of ear-mark specified. I am left m doubt as to the fate of the sow. Perhaps she was to receive all three—a brand, an earmark, and a mark —but there is no specification of the form of any. This explanation of the Wording of the covenant is quite consistent with the intention of the parties, which may be drawn from the circumstances, for it is quite evident that the grantee looked to the herd of cattle for his security, and never contemplated any more horses being brought on to the farm. It is clear from the decision of Mr Justice Williams in re Christie 19, N.Z.L.R., 615, followed by the Court of Appeal in Bailey v. the Union Bank, 1916, N.Z.L.R., at page 894, that the mere covenant to brand without specification of the form of brand is not sufficient to render after acquired stock subject to an instrument : by the operation of section 29 of the Act. Judgment will be for defendant ! for his costs, solicitor £3 3s, and four ' witnesses at 15s each, £3. . . 1 Mr Preston askjed for additional : costs as two days had been occupied 1 in the hearing.'—The matter will be ! referred to the magistrate.