MORTGAGEE’S CLOSURE.

Waikato Times, Volume 98, Issue 16152, 29 November 1924, Page 3

MORTGAGEE’S CLOSURE.

A PUTARURU FARM. CLAIM FOE DAMAGES. ALLEGED SALE WITHOUT NOTICE Thp hearing of a claim for £3402, brought by a Putaruru farmer named Hugh Andrew Boyd against John Rigger, gentleman, of Auckland, was commenced before Mr Justjce Herdman and a jury of 12 at the Supreme Court, Hamilton, yesterday. At 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 'elow its value. Mr M, 11. Hampson appeared for iaintiff, and Mr Sellar for defendant. Motion for a Non-suit. . Mr Sellar moved for a nonsuit, on ' the grounds that there was no want of bonafldfc In the sale between defendant and his son. Leave to argue this point was granted. Mr Sellar pointed out defendant lent plaintiff £3OOO on his farm. Boyd in November, 1919, was behind in his interest and he saw Rigger, who was a very old man, and told him that he could not carry on and Intended to abandon his farm; that he had sold his stock, implements and furnlturp. Rigger sent plaintiff to see Mr Bennett, bis solicitor. Bennett told him to interview the other mortgagees and see if he could make any arrangement with Ihem. On December 6 Bennett, having in mind the conversation of a few days before, wrote Boyd a letter pointing out that unless he met his obligations Rigger would have to take possession. To this Boyd replied that he would leave the matter to him (Mr Bennett) to act as he thought best. Rigger then told Bennett to.write to his (Rigger’s) son, in Hawke’s Bay, asking him to take over the farm at the amount of the first mortgage, £3OOO. The son came down, and father and son went to Putaruru and took possession. The son remained on the place for a couple of days, and then wrote to his father that he would take the farm at £3OOO provided he paid no interest for 12 months, as the place was in a very bad state. The father replied that if the son would farm the place well and spend £SOO on improvements during the first 12 months he would allow him 12 months' Interest. Boyd sued Rigger at the last Court for £IOOO for wrongful entry, and the case went In favour of- defendant. Plaintiff had now put Rigger to the additional expense of the present action, which was brought on different grounds. Following the first action Rigger decided to sell the farm through the registrar, and Boyd was notified of the sale. An offer was also made to plaintiff a month ago, and before the present action was commenced, to take back the farm on-paymen: of the amount of the mortgage and interest.

.. The defence contended, therefore, (1) that plaintiff authorised the sale; (2) that the sale to Allan Rigger was bonaflde; (3) that plaintiff was stopped by his conduct from objecting to the sale; (4) that the original s.-jle to Allan Rigger had since been rescinded and the sale had now been conducted through the registrar; (5) that under the mortgage defendants were not liable for involuntary losses; (6) that this claim was res judicata; (7) that defendant was ready and willing now and had been all along to ■resist from the exercise of his powers on payment of principal and interest; (8) that plaintiff was hopelessly insolvent and was carrying on at a loss at the time of the first sale. Defendant’s Evidence.

John Rigger, defendant, said he was 80 years of age. Boyd called to see him in November last and said he intended walking off the farm, as he could not pay his interest. Defendant sent him to see Mr Bennett. When Boyd could not make satisfactory arrangements he wrote to his son. and together they took possession of the farm. The deal between defendant and his son was a perfectly genuine one. . After the last trial he offered plaintiff the farm back if the m-incipal and Interest were paid up. He (defendant) did not want the farm, nor did his son.

Cross-examined, defendant said he did not consider the property was worth £3OOO when he lent the money to Boyd, but he stipulated that £7OO should be spent in building a house. In selling the land to his son all he was concerned about was getting his money back. He did not want the farm.

Allan Rigger, son of defendant, corroborated his father’s evidence with respect to the sale of the farm. He never wanted the farm, and did not want it now.

Gordon James C. Bennett, solicitor, Auckland, gave evidence of the interview with Boyd and of the subsequent transactions. Body said he had walked off the farm. There was absolutely no collusion between father and son over the sale of the farm. After the last trial witness wrote to Boyd offering him the farm hack on payment of the principal and interest, and later notified him that the farm would •be sold through the registrar, in order to give plaintiff a chance of again acquiring the farm. The other mortgagees were also notified of the sale. There were no bidders at the sale.

Andrew Wilson, surveyor, of Hamilton, said the property was not worth more than £3OOO. It was a fact that many farms were being bought in below their value at the present time, owing to the shortage of money. Harry Skeet, late Crown Lands Commissioner, did not consider that the farm in the market would bring more than £3OOO at a mortgagee’s sale. He assessed the total capital value at £3661. Edward H. Hammond, broker and valuer, of Hamilton, agreed with the evidence of Mr Skeet in the main. The higher country on the farm was a big liability to hold. He thought the rabbits were well in check, its valued the farm at nearly £2OOO to a man able to finance and work it. He had no reason to suppose that any man would pay £3OOO cash for the property during Last or this yeaT. His Honor summed up strongly in favour of defendant.

After a lengthy retirement the jury by a majority of 10 to 2, decided that there was no wilful or reckless want of care in the sale of the land from Rigger senior to Rigger junior. Judgment was accordingly entered for defendant wilh costs.