SUPREME COURT.

Dominion, Volume 3, Issue 783, 5 April 1910, Page 9

SUPREME COURT.

A MARLBOROUGH RUN

TWO BUYERS. The Chief Justice.(Sir Robert Stout) gave ]iidsraent yesterday in the case of .Thomas Moriand v. Fred. Hales, Benjamin Coleman, James Brownlie, John Olliveiy and- Thomas Wilson, with Edward Somerville, who was jojned as a third party,. This was a claim for specific performance of an agreement' for the sale, of ; the Birch Hill Estate, Marlborough, to the plain tiff, a farmer,, of Rakaia. Defendants,-' who arc 'residents of Wellington, were the owners of the property. .'They claimed to have withdrawn the offer to sell the property to plaintiff, and to have eold-it to Sojnerville. They alleged that plaintiff had, either by himself or his agente, signified that he did not. intend to accept the offer. • The Chief Justice, in his judgment, reviewed the facts of the case, and said: — It appeared that two ■ purchases of ,the property had been made, both in good faith. The question really was, which of tho two was entitled to have'his bargain completed—eith.br Thomas Moriand or Soinervillo? The equities in the case, in his Honour's opinion, were equal, and the person who obtained'the .first .valid contract, namely Mr. Somerville, was entitled to have tho property conveyed to him. Costs would have to be allowed the defendants. Any other". questions arising in the case' would have" to stand over. The right to suo for damages on the option to sell (if it was not declined) j ■\vould also be reserved. "'■'•■■-. . '

..Mr. G.. Haipor, of, Christchurch," and ' T.-Tonrig appeared,'for plaintiff, af the hearing; Mr. C. P." Skerrett,'K.C.' (with him Mr. H. F.-O'Lea-ry), instructed by Mr." J. J. • M'Grath, for 'defendants; and Mr. T. W. Stringer, .K.C.'i of Christchurch'(with'him Mr. P. Levi), for the third party. " . . ACCESS. TO.CROWN LAND. LESSEES '"UNENVIABLE POSITION." Judgment in a case of considerable in-' terest to property, owners and farmers, was givon by Sir Robert Stout, Chief Justice, yesterdays The question at issue was :whether ; .the', defendant,;. Gebrg6 Forman, who istfo-lessee of education reserves in. the Wairarapa, has a right'to a! way over the property of the plaintiff, Edward Joshua Kiddiford, owner of Glen : burn Station. Mr. C. P. Skerrett, K.C.', with him Mr. H. 11. Ostler, appeared ■for the plaintiff, and Mr. 11. Myers for the-: defendant. ... . ' • ' .

The. Chief justice, in his judgment yesterday, said that the defendant had used a way for some years ovor the plaintiff's laud, but it was admitted that unless ho could show; he had a way of necessity over tholand lie could not claim the way he had so used. The defendant's contention was- : that in, .the.grant of sections 180 ■ to; 190 inclusive (part-.of. ■ plaintiff's property) 'there aroso :at' once a way of necessity which, the law would'imply was regranted-or. reserved because there Was no other way of getting to the Crown areas that were unsold. To make that contention valid it must appear that on the grant of those sections there was no abcess to the sections unsold except through, these sections. That had not been proved, and consequently, in his opinion, that contention could not prevail. The next contention was that even if there was no way of necessity then still a way of necessity was created afterwards. The' predecessor in. title to the plaintiff purchased, and the, Crown granted to him in--1881, section 216. In August, 1889, he sold part of section 216 to the Crown, hud the Crown disposed of this part, of which the defendant is now occupier. The part sold was bounded in one part by a public road; This public road ran for a considerable distance, perhaps three-quarters of a milo, when it curved to section 183, and ended at the boundary of that section. Tho contention was that as the northern termination of the road ends there a way of necessity was, by the sale of part of section created over sections 182, 183, and 180. Tho road also went on in a southerly direction, and it appeared, according to the plans, to terminate in another cul do sac. Could it be said that a way of necessity arose at its southern termination? At its southern termination there was also land of tho Slaintiff, and which belonged to his pre-. ecessor of titto when he sold the part of suction 216 to tho Crown.. Could the defendant select either a way at the northern end of the road or at the southern end? The rule was that tho vendor had tho right of selection if there were two ways. This was claiming a way of necessity through land not adjoining the land which it was said was land-locked. Could such a claim arise in this case? The part of Section 216 'sold to the Crown was not land-locked, for it had a frontage to a public road. If it could be claimed in this caso it could bo claimed if the public road was, say, ten or moro miles long, and ended at other land of tho vendor who sold part of Section 216. When a way of necessity arose, was, in his opinion, stated correctly in Goddard on Easements, where it was asserted that "Every'way of necessity is founded upon a presumed grant and unless a grant can be presumed no way of necessity can be claimed, oven though a landowner is in consequence totally debarred of all means of access to his land."

The Chief Justice concluded: "I may. add that tho defendant has no doubt been placed in an unenviable nosition, but the Court cannot help him. Tho case shoVs the need of not disposing of Crown lands until proper necess is given to them, and also the need of carefully seeing that no rights to tnke roads ue allowed to lapse, unless it is clearly jsecn that theso rights might not be exorcised. The injunction must be made perpetual, and the plaintiff is entitled to costs."

A LAND TAX CASE. LESSEES.AND PURCHASERS. ■ The Chief Justice (Sir Robert Stout) gave judgment yesterday morning in the case Rhodes nnd others v. the Commissioner of Taxes. Mr. C. P. Skorrott, K.C., with him Mr. HadfieUl, appeared for tuo plaintiffs; and Mr. J. W. Salinond, Solicitor-General, for the defendant. In this case the plaintiffs were the owners of the Heaton Park Estate, which they divided and sold in lots. Tho purchasers, instead of executing a deed of purchase, were invited to sign, nnd did sign, a deed of Icaso, which contained a

"clauso whereby the lessees agreed to purclinso the fee' simple at ,£l2 10s. per acre, £1 of the purchase money being acknowledged as already paid by each lessee. The purchasers obtained possession, and many of them have i>ot paid 15 per cent, of the purchase money. The amounts due wero returned as unpaid purcha&o moneys owing, and the lands wero not returned as owned by the plaintiffs. It was admitted that tho transactions were . entered into in good faith, and not for the purpose of evading taxation. The Commissioner assessed tho plaintiffs as liable to pay mortgage tax on tho unpaid purchase moneys. This was the course followed in 1907 and 1908, but 'in 1909 the Commissioner amended his previous assessments, and charged tho trustees with tax on the lands, instead of on the purchase money. Tho Commissioner 'contended: ■ (1) That he did not exercise his discretion under Section 16 of the Land and Income Assessment Act, . 190{. (2) That the purchasers were not in possession as purchasers.

The Chief Justice, in .his judgment,said that no exemption was applied for under Section 16, but by the rate of assessment fixed, tho Commissioner had in fact granted the exemption, for the assessment would otherwise have been much higher. Having done so on two occasions in two different years, he could not now say he did not do so. His decision was by the statute made "final and conclusive." It might be that lie did not fully realise what he did, but ho granted the exemption, and, having done so, it was not permitted to him to Tevise his deoision under the section of the Act allowing him .to amend, for the amendment was reversing a decision that was declared final and conclusive- '.-.

The second contention was the more important one. Had the purchasers possession as purchasers, .or were they lessees? It was clear that these persons were not mere owners of a leasehold estate in land. They had an equitable estato in fee simple. Thoy occupied, a different position from that of a mere lessee. If they were lessees,. they were purchasers also, and they did not therefore fit the status mentioned in Section 56_ of the present Act as lessees. It inight.be that thero was no enactment re-, iating to them at all, and that there wns concerning them what is called a cnsiis omissus. Courts had had in many instances to .ascertain' what was the real position of parties, and not what the documents they might have signed might call them. Could it.be said that the relationship of landlord and tenant created by the deed was meant to destroy the relationship of vendor-and purchaser? Hβ did not think so. The persons re-, mained purchasers under an agreement made for the sale of the land, aiid wero bound to pay the purchase money at its due date. They.tad powers also from time to time to pay off part of the purchaee money, and their rent was on a five' per cent, basis,..as such payments were made. The rent; wasj in fact, in-' terest on the purchase 'money due at" a rate of 5 per cent, per annum. The relationship of landlord and tenant was created by deed to give the' vendors greater security. The interest ■ they had in the land was not, therefore, a leasehold interest only. It was a leasehold interest plus the status of absolute purchasers. . They were in possession as purchasers, as well as 'in possession as lessees. .

Judgment must therefore be given for the plaintiffs with posts. On the application of the SolicitorGeneral, leave to appeal without security was granted.

• Tho roport of.the proceedings of the Magistrate's Court will be found on page 2 of this issue.