COURT OF APPEAL

Daily Telegraph (Napier), Issue 4010, 29 May 1884, Page 3

COURT OF APPEAL

Thijbsday, May 22

(Before theirhonors Mr Justice Richmond, Mr Justice Gillies, and Mr Justice Williams). , . '■." BOUOIiAS V, BUTTON AND OTIIKES. .■ . w This was a redemption suit brought by tho pliiintiff claiming: certain shares ill a block of laud known as Ka Kaoroa aguinst certain natives as owners of ■ the equity of redemption. T. P. Russell and J. N. Wilson, trustees of another native, F. Sutton as jnortgagee, and other mortgagees. The title

to the land was a complicated one, but the following short facts will show the question raised upon the argument. In December 18G7, all the native grantees of the block made a lease, now vested in the plaintiff. In September, ISGS, all the grantees (except Tokako, who had died,) made a mortgage to the defendant Sutton. In 1881 and fsS2 six of the grantees conveyed their freehold interests in'the block to tho plaintiff. The declaration claimed redemption and an account from Sutton, who had received the rents in. part satisfaction of the principal and interest moneys secured by the mortgage, and that the other defendants who had joined in tho mortgage should contribute in paying it off. The defendant Button, in his plea, alleged that on the 2oth August, 1870, three of the grantees who subsequently conveyed to the plaintiff, had on that date convoyed their interests to him. The pleas of other parties to the suit are immaterial for the purpose of this case. At the trial at Napier all th'.\se facts and others were admitted, and the case now came before tho court on motion for decree. Mr Trovers for the plaintiff: The principal question is, apart from the form of tho decree, whether Sutton or the plaintiff are the owners of the interests of Rawenata Tawi, Hone Rautahi, and To Hurawira To Tatan. The conveyance by these three to Sutton is absolutely void. If the mortage of 18C8 brought the case within section 14, whereby the estates of the different natives were equalised it was not made with the consent of the 'majority under section 15. Assuming the mortgage did not, the conveyance is void, as not showing on its face that it was made with the consent of the majority. This conveyance being void, the plaintiff's conveyances are good, as having been taken since the repeal of the Act of 18G9. The present Native Lands Act, 1880, only repeals the Act of 1873 so far as repugnant. Sections 80 to 99 provide for ascertainment of shares alienated. The plaintiff can ascertain liis share.-*, but he cannot make Sutton ascertain his. (Mr Justice Richmond : It would be a proceeding in rem, arid all parties should be represented.) Yes ;_ but tho plaintiff could not have tho value of Sutton's shares ascertained. There can bo no presumption in favor of the validity of Sutton's title. Tho Native Lands Court has refused jurisdiction to entertain a reference from the Supreme Court,_ but the Supreme Court must have an inherent power to determine a question of this kind, and to refer it to the Native Lands Court. (Mr Justice Richmond: You are asking to redeem, and consequently are asking for a favor. Can you ask for equity without preferring- Sutton to enable him to ascertain his interest ? If you have power to ascertan your interest, should we not hold our hand till wo havo done so r) The plaintiff cannot do so. (Mr Justice Richmond: Can you not institute proceedings under section 12 of the Act of 1880.) We cannot bind Sutton by our proceedings, and we do not wish to ascertain tho value of our shares; we merely ask as to the validity of his conveyance. Mr Stout, for the defendant Sutton, argued that the Court must do one of two things, cither decree that Sutton may join in redeeming tho mortgage, or tho suit must bo dismissed. (Mr Justice Gillies : May not the Court order an inquiry before the Registrar what arc the interests of the several parties, and, if necessary, havo issues tried '< The Court has no jurisdiction ; this is not tho proper form. The Supreme Court has no power to determine native titled. (Richmond, J. : Tho Native Rights Act, 18U5, gives tho Supremo Court some jurisdiction.) It has not tho statutory jurisdiction conferred by tho Native Lands Acts of 1869 and 1873. The loth section of the Act of 1869 shows that tho Supremo Court has not the jurisdiction. (Gillies, J.: The jurisdiction is not expressly taken away; it must still exist.) The Supreme Court never had jurisdiction. (Gillies, J. : I cannot say where the jurisdiction to inquire into the interests is taken away.) It never existed. (Williams, J, :Is not the meaning of section U of the Act of 1869 that the inquiry may be made in the Native Lands Court where a conveyance is contemplation, not where a conveyance has actuaUy been made?) Horomonav. Drower, 4 N.Z. Jur. 104. (Richmond, J. : We think we cannot make a decree against you that you have no title. Is not the question, then, what is the course to take in order to ascertain that interest, if an}', you have? Could we not decree redemption with a reference, if possible, to tho Native Land Court as to the shares). Stout: they seek a reconveyance of six shares, and virtually a mortgage over thres. Section 15 and 50 of the Act of 1869 must be road together. There are some cases, and this is one, which do not come under that Act, namely, where a lease or alienation has been made—see section 92; section 15 only applies to the first dealing. The whole tenor of the Act shows the restrictions apply only to the first transaction. To Koko being dead at the date of the mortgage, the whole legal estatewas obtained. It lay on the to attack our deed by proving its invalidity, we do not havo to prove our title. The parties ought to ask for a subdivision in the Native Lands Court. (Richmond J. : if we leave the parties to go to an inferior court, wo ought first to see our way to granting a mandamus if that court refuses jurisdiction.) The cases of proof of invalidity—Taylor v. Needham, 2 Gaunt 278 ; Stephen on Pleading, 03 ; North v. Wakefield. 13 Q. 8., 540. Mr Izard and Mr Chapman, for various parties, did not address the Mr Travers, in reply, argued that To Koko's share did not survive, so thac his representatives must be brought in. The Act of 1865 had the effect of diverting his share from the survivors, subject to the mortgage. Sec. 50 only applies to the case where possession remains in the grantee. Tho jurisdiction of the Supremo Court is only ousted where the shares are equal; where the shares aro unequal, an inquiry can be made. The purchaser must defend his position The defendants' deed is set up by way of title ; the defendant must therefore show it was made by a majority in value. The Court took time to consider its judgment.—The N.Z. Times.