ALLEGED ILLEGAL ENTRY

Waikato Times, Volume 98, Issue 16094, 18 September 1924, Page 5

ALLEGED ILLEGAL ENTRY

VERDICT FOR DEFENDANTS. PLAINTIFF INSOLVENT. UNBUSINESSLIKE PROCEEDING. His Honor Mr Justice Stringer gave Judgment for defendants this morning in the case In which Hugh Andrew Boyd claimed damages from John Rlggir and Allan Rlggir, for wrongful entry on a farm at Putaruru. As His Honor considered defendants had acted with undue harshness, he did not allow the full costs. The case in which Hugh Andrew Boyd, farmer, Putaruru, sued John Riggir, Auckland, and Allan Rigsir, Putaruru, for possession of a farm at Putaruru, which it is alleged defendants wrongfully entered ■as first mortgagee and purchaser, was concluded at the Supreme Court, Hamilton, to-day. The evidence is reported on pase 6. In giving judgment His Honor said there was a direct conflict of evidence in the case on the point as to whether plaintiff gave defendants leave and license to enter the property. His Honor had come to the conclusion, however, that the defence of leave and license had been established, j There certainly was on plaintiff's own evidence all the appearance of the abandonment of, the farm. Plaintiff had sold his dairy stock and his furniture, while his wife and family had left the farm and plaintiff was, undoubtedly, in a hopelessly insolvent position. He had heavy mortgages on his farm, and in addition owed considerable other money. Under these circumstances his position seemed positively hopeless, and there seemed to be no alternative so far as His Honor could see but for plaintiff to give over the property to his mortgagees. On plaintiff's own. admission he had told defendants that he could not carry on. His Honor therefore gave judgment for defendants, and expressed the opinion that the notice given under the Mortgages Extension Act was good. Referring- to the sale from fdther to son, His Honor said he was not called upon to decide, under the circumstances, whether this was a collusive sale. If plaintiff considered it was, or if the subsequent mortgagees believed it was, they could impeach it. As to the manner of the sale, however, His Honor said he thought this wa3 conducted in a manner calculated to provoke further litigation. In His Honor's experience it was the universal practice of a first mortgagee, before the sale of a preperty on which there were other encumbrances, tq give subsequent mortgagees notice of the proposed sale in order to afford them an opportunity of purchasing, and of thus protecting their interests. It seemed to His Honor* a most unbusinesslike way of doing business, and most likely to provoke litigation. The whole matter of the. sale was lefi at large. His Honor added that he felt great difficulty in escaping from the conclusion that the only contract was the mortga&e created by the original document, and that the extension was not affected brthe provisions of the Mortgages Extension Act. His Honor adcied that he considered defendants had acted with considerable harshness towards the mortgagee in excluding him from the house in the way they did, and for that reason he proposed to limit the costs. Judgment would be given for defendants on the original claim, with costs which would be limited to Court fees, witnesses' expenses, and disbursements. Judgment would also be given for Riggir on the counterclaim for £79 18s Gd interest claimed.