SUPREME COURT.

Wellington Independent, Volume XVI, Issue 1495, 8 February 1861, Page 5

SUPREME COURT.

Before Hi 3 Honor Mr. Justice Johnston.

Friday, February 1, 1861. BUNNY V. TOOLE.

JUDGEMENT. Tms was a rule calling on the Plaintiff to show cause why a verdict should not bo entered for the Defendant on tho ground thafc the Defendant having been in lawful possession at the time of tho fraudulent grant. to M'Gill and conveyance to plaintiff, the plaintiff could not by such grant get a better title than M'Gill, and that such possession must be taken as constructive notice to tho plaintiff of tho defendant's titlo.

Tho case was twice argued beforo mo afc great length, and but for tho report ofthe caso of Trevanion v. Morse (1 Vernon, 246), and certain dicta of Lord Sfc. Leonards in his great work of vendors and purchasers, I ehould have held, at

once thafc thero was no presumptive, and no cvi- , donee of constructive, notice. But having a doubt how tlie case of Trevanion v. Morse is to be understood, and considering tho very great practical importance of the question, and tho inconveniencies whicli may arise in the present state of tho colony from a decision in either way, I took time to consider the matter, and if necessary consult my learned brethren on ths Bench, — ifc boing most desirable that thsre should be unanimity on the subject. lam liappy to say that both my learned brethren concur in tho opinion at which I had arrived.

Lord St. Leonards in " tho "Vendors aud Purchasers," vol. 3, p. 491 (ofthe if'th edition), says " If the conveyance pleaded be of an estate in possession, fche plea must aver that the vendor was in possession afc the timo of fche execution of the conveyance ; " and he cites Trevanion v. Morse as an authority for thafc statement.

Again, at page 469 of the same volume, he says, " the cases have gone so far thafc a purchaser cannot be advised to complete a, contract for an estato not in the seller's own occupation without a communication wifch the tenants, in order to ascertain whafc their interests really are."

And afc p. 470 occur the words " Although ifc ia true fchafc where a tenant is in possession of premises, a purchaser has implied notice of tho nature of his title," &c.

The two latter passages seem to me only to mean this, ' ' If fche purchaser has notice thafc there is a tenant in possession, he must be takon to havo notice of fche quality and quantity of his interest." In commenting on Jones v. Powles (afc p. 418 of the book above cited), Lord St. Leonards says "Upon full consideration ofall fche authorities and the dicta of Judges and text writers, and the principles upon whicli fche rulo is grounded, the Court was of opinion that the protection of the legal estate was to be extended nofc merely to cases in which the title ofthe purchaser for valuable consideration without notice is impeachable by rea3on ofa secret act done, but also to cases in wliich it is impeached by reason of the fals?hood of a fact of title asserted by the vendor or those under whom ho clainis, when such asserted title is clothed with possession, and the falsehood of the fact asserted could not have been detected by reasonablo diligence. This, I may be aUowed to observe, is no doubt the true view of the case."

Now, I think thafc in this case we must take it, aftor the finding of the Jury, that there was no absence of -reasonable diligence on tho part of the Plaintiff; and although the title was not clothed with actual possession, I am of opinion thafc tho possession of fche title deed to the legal estate (the Crown grant), by whicli possession the vendor appeared, and pretended to have the right of possession was tantamount, undor the circumstances of tlie case, to actual possession, for tho purposes of tho present inquiry. By the course of his dealing with tho Plain till", tho vendor seems to me to have pretended that he was actually in lawful possession ; — just as much as if the Plaintiff had gone to the spot and found the vendor actually on fche land, ho having by fraud induced the Defendant to bo absent at the time of the Plaintiff's inquiry.

But .the decision in Trevanion v. Morse still remains to be considered.

It is to bo noticed, in the firet place, that the report of that caso is a mere noto, and hither, that the question there arose upon tho averments necessary in a plea in equity of a bona fide purchase without notice ; and it does not necessarily follow that if such facts as have been found by the Jury j in this case had been set up by way of answer, tho ' answer wouid havo been lield insufficient. On tho whole therefore, notwithstanding the ; apparent pertinence of this authorit}', I feel bound i to conclude, after fche finding of the Jury, that I must tako the equities of the parties to be equal ; \ and upon fcho simple broad principle thafc whero j the equities are equal, the legal estate must prevail, 1 think fcho Plaintiff ought to retain his ver- ! diet. ltule discharged. RKGUXA v. MAY. Struck out. keoi.va v. masters. Struck out SITTINGS IN BANCO. ! BARLEVMAN V. SIMPSON. j Postponed. BIND AND OTHERS V. UICKSOX. Mr. King for Plaintiffs moved for a decree. Motion dismissed with costs. j CRAWFORD V. S I UART AND OTHERS. j Mr. King appeared for Plaintiff. Mr. Carlyon j for Defendants. Mr. King moved for a decree on the declaration and pleas as by second mortgagee as against first mortgagees in possession for an account. Decree by consent. M'DONALD AND ANOTHER V. LUXFORD. Mr. King, for defendant applied for a rule Nisi for plaintiffs to show cause why tho verdict on the 7fch issue should not be set aside and a verdict entered for defendant, or a new trial had. Rule refused MARTIN V. BURKE. Mr. King, for plaintiff, moved for a rule against the wife of defendant, under fche Absent Debtors Act, for a day to be fixed for her to be examined. Order made for Friday next. j M'DONALD AND ANOTHER V. LUXFORD. i Mr. Izard, for plaintiffs, moved for a decree. Mr. King, for defendant, objected, in limine, thafc there was a special verdict to be argued, i Special verdict set down for argument,, and mo- [ fcion for decree to be heard on Tuesday isth inst.

SAXON V. SIMPSON. Set down for Tuesday, 12th inst

HEAD V. BROWN Postponed to next sitting day.