MORTGAGEE'S CLOSURE.

Waikato Times, Volume 98, Issue 16152, 28 November 1924, Page 5

MORTGAGEE'S CLOSURE.

A PUTARURU FARM. CLAIM FOR DAMAGES. .ALLEGED SALE WITHOUT NOTICE. The hearing or a claim for £3402, brought by a Putaruru farmer named Hugh Andrew Boyd against John Rigger, gentleman, of Auckland, was ■ commenced before Mr Justice Herdman and a jury of 12 at the Supreme Courti, Hamilton, to-day. At the last sessions Boyd proceeded against Rigger on a claim for £IOOO for wrongfully taking possession of the property. This resulted in a verdict for the defendant. The present claim is for damages on account of the mortgagee allegedly selling the property below its value. Mr M. 11. Hampson appeared for plaintiff, and Mr Sellar for defendant. Plaintiff, It appears, Jormerly had a farm of 582 acres at Putaruru, which he farmed for 18 years. This was subject to a mortgage of £3OOO to defendant, a second one of £IOOO tc one Archibald Hoye, and a third one of £950 to Hugh Boyd (his father) and a further one of £530 to one Parker. The market value of the farm was given by plaintiff at £6402. On December 11, 1923, defendant, as mortgagee, entered Into possession of the farm, eventually selling it to his son, Alfred Allan Rigger, for £3OOO. It was alleged that the sale was effect- , ed without notice to the plaintiff, and 1 that the defendant did not exercise the U said power bona-flde for the purpose of realising the security, nor did he take reasonable precautions to secure a proper price fixed with due regard to the value of the property. Plaintiff had thereby suffered damage to the extent of £3402. Plaintiff's claim was* based on the contention that flie sale from father to son was under circumstances which showed reckless disregard to value on the part of defendant, who made no attempt to realise the proper value of the farm, and that plaintiff at no time authorised such sale.

The defence was a denial of disregard. It was held that defendant was given leave and license to sell the farm in order to protect himself under the mortgage, and that plaintiff "walked off" the farm; that at no time did the value of the farm exceed £3000; that at the time of the sale plaintiff was hopelessly Insolvent and unable to carry on; that the sale had since been cancelled and the farm by public auction. Evidence by Plaintiff.

Plaintiff "explained In evidence that he wai badly hit by, the slump, and he went to Be ° Rigger to see if he could get an extension of Jime to. pay his interest, whloh was overdue. Rigger sent him to see Messrs Bennett and Jacobsen, his solicitors, when matters were talked over. He later received a letter from 'the solicitors informing him that Rigger Intended, in view of the plaintiff not making satisfactory arrangements to this obligations, to exercise his powers of sale as mortgagee. The next thiny he'knew was when he saw Rigger ana his son driving along the road towards his farm. On his return he found the gates nailed up and the house barred against him. To plaintiff's knowledge the other mortgagees were not notified by Bigger of the sale of the land to his son at exactly the amount of his mortgage. The land was worth more than double this value. Cross-examined plaintiff admitted that when he went to see Rigger on November 27 of last year, his position was hopeless. He told Rigger he could not carry on, that the stock, some of the furniture, and some of the implements wqre sold. 'He did not say that he intended to abandon the farm. Rigger sent him along to see Mr Bennett. He did not tell Bennett that there was nobody living on the farm at the ' toe, and that he did not abandon the place. Asked how he accounted for becoming Insolvent after working for 18 years on his farm, plaintiff said he had spent more on the place than had been wise. The slump then came on. He admitted that he received two notices of Intention to resume possession, and one offered him the farm back if the principal and interest were paid. Mr Sellar: Are you now prepared to take the farm back by paying Rigger his principal and interest. Plaintiff said he was prepared to do this if be could finance it, but the fact of defendant being in possesion had u*cted th* valuation. Ar Hampson said there would be an end of the action if defendant would hajQd back the property on payment of the principal and interest, and was prepared to make an allowance to the value which the farm had depreciated since It had been in defendant's possession. Mr Sellar said the farm had been improved since defendant took it over. Plaintiff said he tried to pay off the praincipal and interest. He wrote to the Advances to Settlers for a loan, tnd also approached his father, who already held a mortgage on the property of £950. He saw a notice recently that Rigger was putting the farm up for sale by public auction. He did not attempt, to buy the farm in, ■ftjeause he thought it would be useless under the circumstances. Mr Sellar said thaT all the other mortgagees were notified of the second sale. Considered It Hopelqps.

Plaintiffiadmitted that he was ri arrears to all the mortgagees at the time of the first sale. He considered it hopeless to try and raise the necessary money while defendant was in possession. Herbert Henry Dorr, land agent and valuer, said he inspected the property early this vear, following- on an application to 'the State Advances Office lor a loan.- He considered the farm was in fair order. About 260 acres were in good grass, 25 acres under the plough• "there were 140 acres of surface sown grass; 100 acres of fern and rubbish had been burned off; there were ISO acres of unprofitable land. There was approximately a tofai of 480 acres of good, fair and indifferent land. The fencing was good, and he did not consider the rabbits a serious menace, and thought they had been kept down. There was an ample supply of water. The capita! value he estimated at £5135, including a house, valued at £550, and a cottage at £l6O. He set down the improved value at £2300. The previous valuation on the roll was £IOOO. Witness valued the property for the State Advances Department. He thought the properly caapbie of carrying so cows In addition to dry stock. He rogardcdlhe valuation as a conservative one. He saw the property again yesterday, and fought it iiad gone back in the_way noxious growths, and the rabbits appeared to have increased. Cross-examined, witness sald-nobodv was on the farm when he visited the .place In January. He learned, yester-

day, that an objection had been lodged against his valuation. The district was one in which thero was a lot of Callfornian thistle. There were about three acres of ragwort on the farm when he visited it yestorday. He would not be surprised to know that 2400 rabbits had heen taken off the property since Rigger's ocoupanoy.

Herbert Robinson, farmer, Putaruru, considered the property had gone back since Rigger took it over. Cross-examined, witness said that under abandonment, with nobody on it, the farm would have been In a worse condition than with Rigger on it. Ho considered the farm was worth £l2 an acre when Rigger took it over. Similar evidence was given by Arthur Thomas Morris, who said that Boyd had done more than his share to keep the rabbits down. He considered the value last December to be £ll 10s per aore. There had been no sales in the district for the past three years. He could not account for it being put up for auction and bought in for £3OOO. Samuel Edward Crawford, farmer, Walton, said he inspected the farm for a friend, who contemplated buying, and was of opinion that it was well worth £lO 5s per acre. The reason It was sold for £3OOO was probably beoause, nobody could find the money to buy it. Witness said he saw a property sold the other day for £lO »n acre, which he honestly thought was worth £3O an acre. (Proceeding).