NATIVE LAND CLAIMS ADJUSTMENT ACT, 1910 (REPORT AND RECOMMENDATION UNDER SECTION 28 OF THE), ON PETITION No. 132/1910, RELATIVE TO MANAWATU-KUKUTAUAKI 4b No. 2.

Appendix to the Journals of the House of Representatives, 1911 Session I, G-14g

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1911. NEW ZEALAND.

NATIVE LAND CLAIMS ADJUSTMENT ACT, 1910 (REPORT AND RECOMMENDATION UNDER SECTION 28 OF THE), ON PETITION No. 132/1910, RELATIVE TO MANAWATU-KUKUTAUAKI 4b No. 2.

Laid, before Parliament in compliance with subsection (4) of Section 28 of the Native Land Claims Adjustment Act, 1910.

In the matter of a block of land called Manawatu-Kukutauaki 4b No. 2 ; and in the matter of a petition No. 132, of 1910, by Thomas Bevan, praying for validation of a transfer of part of the said block (undated). Report of the Ikaroa District Maori Land Board. In pursuance of your reference to the Board dated the 23rd May last, the Board has made inquiry into the claims and allegations made by the petitioner, Thomas Bevan, sen., and submits the following report: — 1. The Board held a special sitting at Wellington on the 29th June, 1911, to hear evidence for and against the petition. At the hearing Mr. Bevan was represented by his solicitor. None of the Native owners were present or represented, although they had been advised of the inquiry being made by the Board. 2. The title to their interests in the land in question is such that a short epitome of it is requisite for a proper understanding of the allegations in the petition. 3. The summarized history of the title is as follows : — (a.) On the 17th August, 1882, a Crown grant under the Land Transfer Act was issued to Rawiri te Rangitekehua and nine others for Manawatu-Kukutauaki 4b, containing 1,403 acres, antevesting to the 12th May, 1873. This grant was subject to the restrictions —"Inalienable by sale or lease for a longer period than twenty-one years, or by mortgage, except with the consent of the Governor being previously obtained to every such sale, lease, or mortgage." (b.) The only interest in question in the present inquiry is that of Rawiri te Rangitekehua. On the 18th December, 1878, he conveyed by deed of gift all his interest in this land to his daughter, Te Arai te Punga, and Hana Pewene. The latter's interest under this deed of gift was subsequently partitioned off, and is not now in question. The area of the interest from Rawiri now in question is 42 acres 1 rood 32 perches. (c.) By partition order dated the 18th July, 1889, the land was subdivided, and ManawatuKukutauaki 4b 2 was awarded to Te Arai te Punga (42 acres 1 rood 32 perches), and the Toka family (84 acres 3 roods 8 perches). It is the first-named interest that is now in question. (d.) The donee under the deed of gift, Arai te Punga, died on the 15th January, 1895, and Hingaia Raika Kereaina, an infant, was appointed to succeed her on the 30th January, 1896. (c.) Hingaia died on the 28th February, 1900, leaving no issue. (/.) Rawiri te Rangitekehua, the donor of the deed of gift, died on the 18th October, 1896, leaving a will by which he left his interest in the land in question to Mi Otonore, a stranger in blood, or distant relation. At the time of his death, however, he had no interest in the land, as he had conveyed it away under the deed of gift. (g.) On the 11th January, 1901, Judge Mackay ordered that letters of administration of the will of Rawiri te Rangitekehua be granted to Mi Otonore, subject to the following conditions —viz., " that so far as the deceased died possessed of an interest in the parcel of land known as Manawatu-Kukutauaki 4b Section 2, the letters of administration hereby granted shall be limited in their operation to one-half of the deceased's interest in the aforesaid land." Hakaraia te Whena was appointed successor in respect of the other half-interest in Manawatu-Kukutauaki 4b Section 2. When Judge Mackay made these orders he either was not aware that at that time Rawiri te Rangitekehua

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had no interest in the bind, or he was under the belief that the deed of gift was not valid, and that the partition order and succession order mentioned in (c) and (d) above were, as a consequence, of no effect. (h.) Hakaraia te Whena died on the 4th April 1908. (i.) On the 6th December, 1905, the Court, by partition order, vested 22 acres 2 roods 33-9 perches, called Manawatu-Kukutauaki 4b 2a, in Hakaraia te Whena. This order presumably was bad in law, because at that time Hakaraia was not possessed of any registered or registerable interest. The order was subsequently amended by substituting Hingaia's name for Hakaraia's, and Hingaia was also awarded an interest of 19 acres 2 roods 39 perches in 4b 2b. (/.) On the 14th December, 1908, for the purpose, no doubt, of bridging the gap in the title, the Court made an order appointing Hakaraia te Whena and Mi Otonore as successors to Hingaia. (k.) The orders referred to in (i) and (/) were undoubtedly applied for for the sole purpose of enabling the transfers by Hakaraia and Mi Otonore to Bevan and Drake respectively to be completed, for prior to the date of the orders Hakaraia te Whena died. Representations were made to the Court that these Natives had sold their interests, and on Ihese representations the Court made the orders. It has since appeared at least doubtful whether Hakaraia was entitled to the half-share he was awarded, and Mi Otonore's right is even more problematical. 4. On the 20th April, 1903, Judge Mackay recommended the removal of the restrictions from the 12 acres 1 rood 32 perches. On the 6th February, 1907, the Hon. the Native Minister directed the gazetting of an Order in Council removing the restrictions. On the Bth February, 19<>". Mr. Bevan was requested to forward the transfer for the purpose of having the minute of consent by the Governor in Council indorsed thereon. The transfer (undated) to Thomas Bevan, sen., was immediately sent. On the title being looked up it was ascertained that at that time Hakaraia had no interest in the land. The Order in Council removing the restrictions was never issued. 5. The transfer from Hakaraia is undated. The following are the dates on which the purchasemoney was paid by Mr. Bevan to Hakaraia : On the 2nd December, 1902, £125 ; on the 9th May, 1903, £24 ss. ; on the 19th May, 1903, £24 ss. : total, £173 10s. All these receipts recite that Mr. Thomas Bevan, sen., paid the money on account of Hannah Bevan. 6. From the above recital of the title, and by comparing the dates of payment of the purchasemoney with the date of the recommendation for removal of restrictions, it is perfectly plain that when the whole of the purchase-money was paid to Hakaraia the latter had not even a registerable title, and, moreover, the land was subject to restrictions. 7. The Board is of opinion that it would be establishing a very dangerous precedent to legalize documents of alienation taken, as this one was, in defiance of restrictions, and at a time when the title of the vendor was non-existent. 8. If Mr. Bevan had unwittingly, as a layman, paid the purchase-money over to Hakaraia in ignorance of the true position of the title there would be more justification in his plea ; but, as all the puichi se-money was paid over in the presence of his solicitor, ignorance of the unnegotiable position of the title cannot be pleaded with any justification. 9. The only aspect of the matter which induces the Board to take a lenient view of Mr. Bevan's action in paying Hakaraia the purchase-money is the fact that in 1901 Judge Mackay made an order awarding a half-interest in the land to Hakaraia and a half-interest to Mi Otonore (see paragraphs (/) and (g) ). This order, as pointed out above, had no legal effect; but, even if it had, Mr. Bevan was not justified in paying the purchase-money in defiance of the restrictions. 10. Hakaraia is now deceased, and Mr. Bevan has no recourse against his estate for a refund of the moneys erroneously paid to him. On this ground alone can we consider he is entitled to equitable treatment. 11. It is impossible now to ascertain whether the price paid for the land was a fair price at the time the transfer was signed, as the land was not then separately assessed. The land is now worth much more than it was then. 12. We are of opinion that Mr. Bevan's case will be equitably met by giving him a legal charge against Hakaraia's interest in the land for the amount he paid Hakaraia, and that an account be stated between him and the legal owners of the "land, crediting Mr. Bevan with his payment to Hakaraia and interest thereon, and charging him rent for use and occupation of the land. 13. The Board takes the liberty of again emphasizing the grave danger of validating resurrected documents such as this one. To validate this transfer would have the effect of opening the floodgates to scores of invalid deeds taken in defiance of statutory law, in a meagre hope that something would turn up some day to put the illegality right. Given under the seal of the Ikaroa District Maori Land Board, this Ist day of September, 1911. J. B. Jack, President. The Hon. the Native Minister, Wellington. E. Nicholson, Member.

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