MASTERTON SUPREME COURT

Dominion, Volume 8, Issue 2420, 27 March 1915, Page 5

MASTERTON SUPREME COURT

A MALA FIDE PURCHASED. I An. interesting _ judgment by His Honour Mr. Justice Stringer has been filed in the Supreme Court at Masterton in an action in which the Official Assignee applied for an order for specific performance b.v Harry Nee of the transfer of the title of certain Native land near Masterton to the Assignee. The defendant, in a counter-claim, sought to recover possession of the land and £250 damages. Mr. E. P. Bunny appeared for the Official Assignee, and Mr. S. J. Mo ran for the defendant.

Counsel for the Official Assignee explained that in 1886 Patriot Carr became possessed of 8 acres 3 roods 39 perches of land, under leasp from the Natives. He remained in occupation as a lessee until 1898. In the latter year he agreed to purchase the land from the Natives, and paid over the purchase money. The necessary- documents were prepared by a solicitor, but, for some reason, the transfer was not completed. In 1902 a fresh deed of transfer was drawn up, and Carr paid over further moneys to obtain signatures, but still the transfer was not confirmed. Fresh documents ' were prepared in 1905, but no title was issued. Meanwhile Carr remained in possession of the land, and effected numerous improvements, and. no demand was made upon him either for rent or possession. In 1911 _ Patrick Carr became bankrupt, and his estate and interest passed to the Official Assignee. The solicitor for the Official Assignee procured a copy of the transfer of 1905, and applied to the Native Land Court for a. confirmation of the title. The Court, however, refused the confirmation, and subsequently granted a confirmation of the. transfer to defendant Nee. who had paid a sum of £300 to the Natives.

In the course of his judgment His Honour held that it was clear that, on the facts proved, the bankrupt Patrick Carr. would have been entitled to a decree against the Native owners for the. specific performance of the agreement for sale and purchase, but this was Tendered unnecessary by the fact that in 1905 he obtained a transfer from. the Natives, duly executed, only requiring registration to complete his title. He became bankrupt in 1911, and the Official Assignee of course succeeded to his rights. After going into the nature of these rights as against the defendant, His Honour onme to the conclusion that the plaintiff (tho Official Assignee) was entitled to the relief sought, quite independently of any question affecting Native land, upon general principles of equity. The defendant, having obtained his lentol title,. with full knowledge of the plaintiff's eauitable rights, was therefore a mala-fide purchaser and.must be held to be a trustee for the plaintiff. Judgment would be for the plaintiff on the claim, with costs, the terms of the decree if necessary to be settled in Chambers. Judgment would also be for' the plaintiff on the counter-claim, without costs, except the costs of defence to counter-claim.