UNIQUE LEGAL CASE.

Gisborne Times, Volume XXV, Issue 2063, 25 April 1907, Page 3

UNIQUE LEGAL CASE.

! A NON-EXISTENT ‘DEFENDANT.’ At the Auckland Supreme Court recently Mr. Justice Cooper gave his judgment in the case in which Mr. McGregor, representing Alexander McKenzie, of' Omaha, filed a motion for direction as to service in connection with a certain deed of conveyance. His Honor remarked that the case was -a peculiar, and, so far as he could ascertain, a unique ore. Plaintiff, widower of Catherine McKenzie (deceased), was the executor of her will, and the sole devisee of her estate. Probate of the will was granted to plaintiff. On October Bth, 1888, she was the owner in fee simple of 26 acres at Omaha. A deed purporting to be signed by Mrs McKenzie, and dated October Bth, this land to one Catherine Hodgson; also a deed of conveyance, bearing the same date, apd purporting to be signed by Mrs. 'McKenzie, and to convey the land, subject to the mortgage to Mrs. Hodgson, to a person described on the deed as Alexander McKenzie, son of Catherine McKenzie, who a deed, purporting to be signed by Alexander McKenzie (dated February 5, 1S89), have all been registered against the land. The plaintiff alleged that the mortgage deed and conveyance were forgeries; that Alexander McKenzie, described as the son of Catherine McKenzie, never had any existence, and that some person unknown to the plaintiff had forged Airs. McKenzie’s signature to the deeds, and had also, representing himself as the son of Mrs. McKenzie, executed the further charge to M ,- s. Hodgson. The deeds had been prepared by a solicitor, formerly practising in Auckland, but non dead, Airs. Hodgson’s solicitors had investigated the matter, and, being satisfied that the mortgage and further charge were forgeries, she had by deed relinquished all her claims to the land as mortgagee. But the comeyance still remained upon the register, and the action was brought for the purpose of obtaining the decree of the Court that Alexander McKenzie, described in the conveyance, had no estate or interest in the laud, and bad no title to the land as agiunss the plaintiff; practically the salt was one to set aside the deed of conveyance. As the person described as Alexander AlcKenzie could not be found, the present motion was for direction as to service, and no relief could be obtaine din the matter by plaintiff except by a suit, there being no jurisdiction in tlio Court to order the register to be rectified by the cancellation of the registration of the forged deed. It was also clear that as Alexander AlcKenzie could not be discovered, personal service upon any - one was impossible, and as All s Hodgson had vacated her deed she was no longer interested in the matter. His Honor said no case of a similar kind was reported in the law books, so far as lie was able to discover, but lie was of opinion that the Court might, within its jurisdiction, assist the plaintiff to obtain the relief to which lie claimed to be entitled, and such relief could be given under the wide provision of rule 52, providing that service in any case not specified should be effected in such manner as tile Court shall direct. He therefore ordered that service be effected by publication in the newspapers of the writ of summons, and a copy of the statement of claim be affixed and maintained for a certain time upon some conspicuous part of tho land ill question. ____________