SUPREME COURT.

Dominion, Volume 1, Issue 67, 12 December 1907, Page 5

SUPREME COURT.

CIVIL SITTINGS,

'SUBDIVIDING A CITY SECTION. REFUSAL TO REGISTER A TRANSFER upheld; IMPORTANT -JUDGMENT. Reserved judgment was delivered yesterday morning, by His Honour Mr. Justice Button in respect of a summons calling on tho District ■ Ijntul Registrar to substantiate' the grounds of bis refusal to register a transfer dated.October 14, 1907, front Charles Godfrey Knight, Louiso Caroline Boulton, and Fanny Beard joint to Charles Godfrey Knight, to Louise Caroline Boulton, and to Fanny Board. . '

His Honour; in the course of his judgment, stated that, the late Charles. Knight was, at the time of his death, seised of an estate iii fen simple possession in part of section 469 in the 'City of Wellington. ' About tho month ' of.' December, 1906j the executor in the estate (Mr. Wm. G. Beard) sold; ami conveyed a portion of the section. Oh January, -9; 1907, the executor, at the request of all tho beneficiaries, the administratrix ; ajid; next-of-kin of George 1 Godfrey Knight (a 'deceased son), ; and with the written . consent. .'of Caroline Kn'igbt' (deceased's wife),;applied to tho District' Land Registrar to bring the balnjic,o of the section unaer the. Land, Transfer Act, 1885, in the names of Charles G1 Knight (quarter shard), Louise "Caroline Boulton (quarter share)., and i'anriy Beard (quir- share for herself and .quarter share;for Jtiiil next-of-kin of. the,.late •George Godfrey Knight)' as tenants in common. A certificate was .on April 12, 1907, issued ; accordingly. Charles G. Knight, Louise C, Boulton, .and Fanny Beard caused a plan to bo prepared dividing tho land .into six lots.' Two of the lots had a frontage on Wellington Terrace, a street only 50ft..wide; tho lot which had been disposed of by. sale had no frontage on any street; and the other three lots had a frontage en Aurora Terrace, a street only 33ft. wide. The Registrar refused to register, the transfer becauso, in his opinion, to,do so would contravene the-provi-sions of Sections 116 and 117 of the Public Works : -Act,-1905. • ' It was pointed out by His Honour that., the qbject of those sections ..was ..to prevent the owners" of sections fronting on streets of loss width than -66ft. from sub-dividing such sections, and: selling and otherwise parting with any of the subdivisions without making provision to widen such streets adjoining tno land sold or parted with. For the purposes of Section 116 tlio word " sale " was declared to include " gift, exchange, "or other disposition affccting th'e.fee simple and leifse,'.' etc. Tho question at issue was—Did tho application to -bring the. land under the • Land Transfer Act and directing titlo to issue in the name of the several beneficiaries as tenants in common, or did tho transfer of partition-now sought to be registered, or did both of such documents taken together constitute a "disposition, affecting the .fee simple of the land? " If there wore a series of'instruments so related to each other as ,to:form one transaction .they would together make a disposition, affecting the fee simple of the land. There could be no doubt that to allow, the registration' of . the partition "wbuld'bririg the caso'within the mischief ; that the -statute was passed to remedy . quite as clearly,as.was.the case in rq Peer v..M'Mena-min-idooided last month "by His Honour the Chief .Justice." " The testator in, the , present case could riot have subdivided "his property by. .his'-will- amongst- the beneficiaries in'..the .way'the partition did. The.executor could riot have cut up the property for sale in this way, >and,vif, : a .partition could be made as sought;; the'intention-, of the*'statute might he. defeated.,in any. case. A . vendor only required -'tov,transfer-! h&" whole- • property.. to several.<■ purchasers, and then, •if such purchasers'made a deed of partition, tho.statute would ,bo effectually evaded. ."

I His-vHonour was of opinion'that the application to bring the land under the Act in the way mentioned, or the transfer of partition now sought- to be registered, or 1 both taken together, made a " disposition affecting the fee'-simple ". of . tho land, and therefore a " sale " within tho : meaning of Sections 116 and 117 of the' Public Works Act, 1905, and therefore that the Registrar had substantiated the grounds of his refusal to register the transfer. The' question of costs was held over. • Dr. ! Knight appeared for' Knight and others, and Mr. Pauling for the District Land Registrar.