Supreme Court.—September 12th.

Daily Southern Cross, Volume I, Issue 22, 16 September 1843, Page 3

Supreme Court. — September 12th.

SNOWDEN Y. BAKER. This was an action to recover the sum of £500 for breach of an agreement under seal dated 16th May, 1840. The defendant pleaded, that on the true coustruction of the agreement, he was not bound to pay the said sum of £500. The facts of the case being undisputed by the consent of the Solicitors for the respec ive parties, the following special case was stated for the opinion of the Court :— Special Case. On the 14th January, 1840, Her Majesty's proclamation was issued by Sir George Gipps> declaring all Titles to land in New Zealand null and void, except those derived from the Crown. In the month of May of the same year, the plaintiff entered into an agreement with the defendant, to sell him certain pieces of land, and also certain trees then growing, on another piece of land. The defendant immediately after the execution of the said agreement, entered into possession of part of the said lands, and of the timber therein mentioned, and continued, and now is in possession thereof. The defendant according to the terms' of the agreement, had paid interest on the second instalment of .£soo, befors and after the 16th November, 1840. No grant from the Crown had been made to the plaintiff. The question for the opinion of the Court, was whether under the above 'agreement, and upon the foregoing facts, the defendant was liable to pay the said sum of i;5oo. Mr. C. B. Brewer for the plaintiff, said, the main points I apprehend for the consideration of the Court, are: Ist. Whether the covenants contained in the agreement, on the part of the plaintiff and defendant, are mutual and dependent, or mutual and independent, or whether they are concurrent, acts to be performed by the parties, at one and the same time. If the covenant to convey is an independent covenant, then the plaintiff is entitled to the judgment of the Court without entering into the question of Title. If the Court should on the contrary, be of opinion that the covenant to convey, and the covenant to pay the purchase money, are either dependent covenants, or concurrent acts; then it will be necessary to enquire what Titie the plaintiff under this agreement, is bound to give to the defendant. Ist, Whether he is only required to give such as he had himself. 2nd, Whether

he is required to give a Title decreed from the Crown and 3rdly, supposing he is required to give the last mentioned Tide, whether he has not waived all objections to the Title by his conduct when entering into the contract, by his taking possession! and continuing in such possession for a period of three years, and by paying interest on the second instalment, before and after the time fixed for its payment. And Ist, As to the nature of the conveyance, the doctrine of dependent or independent covenants is discussed at length, and well illustrated in Pordage v. Cole, 319 Second 1. and 1 Note (4) by Sergeant Williams to the same case ; and in Peelen v. Opie, 2 same, and note (3.) by Sergeant Williams. From these cases it appears that the following rules have been established : | Ist. If a day be appointed for payment of money, or part of it, or for doing any other act, and the day is to happen, or may happen before the thing which is the consideration of the money, or act, is to be performed, an action may be brought for the money, or for such other act, before performance. Fur it appears the party relied'on his remedy, and did not intend to make performance a condition pre< edent. 2ndly. When a day is appuiuted for payment of money, &c, and the day is to happen after the thing which is the consideration of the money, &c, is to be performed, no action can be maintained for the money &c, before performance. 3rdly. Where a c< 'enant goes only to part of the consideration on botu sides, and a breach of such covenant may be paid from damages, it is an independent covenant, and an action may be maintained for a breach of the covenant on the part of the defendant, ■without coercing performance in the declaration. The learnpd gentleman cited several other cases, and argued at cunbiderable length, that the present case came within the first, or three rules, and therefore, that plaintiff was entitled to judgment in his favor. But, assuming, for the sake of argument, that this case comes within the second rule, what '1 itle is then required of plaintiff ? I contend such a Title only as he himself possessed, namely, a 1 itle derived through the natives. The original purchase of the land from the natives, Was valid : it cannot be contended tha 1 the plaintiff acted illegally in purchasing from them ; there is no law to forbid such acts. It is true, that a proclamation was issued, declaring all Titles to land in New Zealand null and void, but a proclamation is. not law. An Act of Council has been passed to the same effect. But an Act of Council cannot have a retrospective effect on agreements under seul, entered into with every deliberation and solemnity by parties, previo ts to the passing of such Act. Courts of Law will always, as far as possible, carry into effect the intentions of the parties in a deed. Goodhill and Edwards v. Barley, comp. 600. Lsster v. Garland, I raonr. 471. Folly v. Forbes 4 Moore, 448. This intention is to be gathered from th-3 deed itself, and in tbU case, I contend, from the circumstances of the colony at the timp. Now, at the time of the date of this agreement, a Title derived through the natives was the i nly Title known in New Zealand, and I will venture to assert, that neither of the parties in this suit, were likely to know of any other kind of Title, and certainly never contemplated any other. This I think, is sufficiently made manifest on the face of the instrument itself; for in the covenant, to mike a j proper conveyance, are found these rema kable words : '• According to the circumstances of the Tale," what else could be meant by this, than that the plaintiff was to give a Title something less thm such as would be required according to the usual practice of conveyancing. A^ain, should the Court be of opinion that the plaintiff ought to give a Title derived through th? Cr>wn, I contend that the defendant has waived all right to such a Title. The defect in the Title (if any) ii a patent defects such a one as the defendant knew of at the time of the gale ; he ought to have known of a proclamation as being a public act, and all persons by law are supposed to be aware of it ; and in these case*, the maxim of caveat eruptor applies j Sugdn's Vendors and Purchasers, vol. 1. p. 2 , and 229, where a party after knowledge that he cannot h .ye a good Title, still proceeds in tha treaty, he waives any objection to the Title, Ogilvie v. Folgambe, 3 mer. 53. All the acts of the defendant j tend to shew that he was satisfied with the plaintiff's Title ; he takes possession of part of the land immediately after execution of the agreement. Now, pos- j session of part h possession of tbe whole ; he continues in possession, and is still in 6uch possession at j the time this action was brought, he has not in any wav, offered, or attempted to rescue the contract ; on the contrary, this sum wae to be paid on the 16th November, 1840, and so far from being dissatisfied ] with the Title then, he actually, being unable to pay the money at that time, pays interest upon it, thereby , clearly shewing, that he did not consider there was any defect in the plaintiffs Title, that he could avail himself of to refuse pay meat. Fiudyer v. CoGker, 12 yes. June 27. Fleetwood v. Green 15 yes. pasr. 595. , Auspach v. Noel, 1 madd. 311. On all these ground-., I contend, the plaintiff is entitled to the judgment of the Court. Mr. Bartley appeared for the defendant, and spoke to the following effect : — The argument mainly relied upon for the defence, in support of which, several cases were cited, was that neither in law nor equity, could the defendant be compelled to pay for land to which there was no Title, or even a doubtful Title. 1 hut payment of any portion of the purchage money under the contract, could not be enforced until plaintiff was in a condition to tender or give a Title, otherwise defendant might pay his money without ever being able to obtain that for which he had paid. That plaintiff had no Title or Grant from the Crown, from whom alone a Title to land in the Colony could be derived. That if the Court the contrary, namely, that conveyances either mediately or directly from the natives, could be enforced and sustained in Courts of Law or Equity, a Grant or Title from the Crown became in any cass unnecessary. If the Court would enforce agreements of this description, a purchaser would be in the most helpless condition possible ; for the Government would not recognize any Title, unless derived from the Crown, and might dispossess the purchaser, or not ratify his claim ; whilst on the other hand, the Courts enforced payment from parties to a contract for the same land. Mr. C. B. Brewer replied at considerable length. His Honor the Chief Justice postponed judgment to a future sitting of the Court.