SUPREME COURT.

Globe, Volume XXII, Issue 1981, 30 June 1880, Page 4

SUPREME COURT.

SITTINGS IN BANCO. Monday, June 23. [Before His Honor Mr Justice Johnston.] 'The Banco sittings were resumed at 11 a.m. QtTINN AND ANOTHEB V COLD. In this case, which was an argument of a special case stated for the opinion of the Court without pleadings, the plaintiffs Bought to be decreed to hare possession of a certain piece of land mortgaged to them by the defendant. The facts of the case were that the mortgagee advanced a certain sum of money to _ the mortgagors, taking security over two sections, one being under the Conveyancing Ordinance, and the other under the Land Transfer Act. On the former the money was payable by instalments, and default haying boon made on the latter, the plaintiffs obtained an order of foreclosure from the District Land Registrar, Instalments duo at the time were tendered to the plaintiff by the defendant, but refused, and the plaintiffs now sought to obtain a decree for possession on the ground of his right to consolidate the mortgages, and that default having been made on one default was ms do on all. Mr Stringer, instructed by Mr Hammeraley, for the plaintiffs. Mr George Harper for defendant. Mr Stringer contended that the plaintiffs had a right to possession of the land, because default having being made on one parcel of land, the plaintiffs had a right, under the principle of consolidation, to enter into possession of the land as a whole. [Case cited in support, Miles v Jennings, 49, L.J.O.D. 409.] It might he contended on the other side that tho instalments having been tendered on one mortgage, the mortgage could not he foreclosed, bub he should submit that it had been held different. [Case cited in support Cummins v. Fletcher, 49, L.J.C.D.] The decision in this case amounted to this, that default in payment of one mortgage meant default on all, and that unless the whole was paid the mortgagee had a right to foreclose. This was precisely’ what this case was. The defendant had made default on one part of the property, hence tho plaintiffs had right to foreclose and obtain possession of the land. The plaintiffs had, under the oases he had quoted, a perfect right to consolidate and foreclose, and the last case he had cited most strongly put the doctrine he had been contending for. Hence he should submit that the plaintiffs had a right to possession. Mr Harper submitted that the cases cited by his learned friend scarcely touched the point. The question was that under the Conveyancing Ordinance mortgagor had a statutory estate in the land nearly equal to that possessed by him prior to the mortgaging unless default (cited clause 40 of the Conveyancing Act). Now the two ’pieces of land were under different Acts, one being under tbe Conveyancing Act and the other under the Land Transfer Act. There had not been default on the one under the Conveyancing Act, hence the default on the other did not give the mortgagee power to foreclose on both. His learned friend wished it to be established as a doctrine, that default having been made on one piece of land it must be taken as having been done on the whole. He (Mr Harper) contended that the judgment in Cummins v Fletcher showed that in doing this would be going too far. The mortgagor under the Conveyancing Ordinance had tendered the instalments, but they were refused, not to enable foreclosure, but to allow of tho mortgagee consolidating his mortgages and making them apply to all. Now he should submit that tho plaintiffs were shut up to the clause in the Conveyancing Ordinance, giving the mortgagor a legal estate so long as he was not in default. In this case the mortgagor was not in default, and the mortgagee’s right to possession had not come in, and no action would lie if the mortgage had stood alone. The mortgagee had not a legal estate and right to possession to enable him to enter, the more so as it was admitted that no default had been made on tho leasehold property. Hence no power was given to the mortgagee to bring an action because he had not the legal estate of‘entry which was necessary. [Oases cited : Gallin v Cameron, “ 1 N.Z. Jurist,” O.S. 25 ; Newton v Oramond, “31ST.Z. Jurist,” N. 8.122.] In this latter case, Mr Justice "Williams, in giving judgment, held that an equitable estate only would not give tho plaintiff power of entry and sale. He submitted that the right of consolidation was only an equitable right, and all tho oases showed this to be so. There having been in this case no default on one piece of land it ■would not entitle the plaintiff to entry and possession. He had carefully searched all the cases, but could find nothing to give this right to sustain an action If or ejectment in a case analogous to this, where tho question of consolidation arose, default having been made on one piece of land and not on the other. Tho only power given was that the mortgagee might say to the mortgagor, “If you desire to redeem your property you must pay the amount duo on both.” In order to enable the mortgagee in this case to bring bis action for possession of the land he must have the right of entry as well as the legal estate, and he had no right of entry until default was made. Now default on the one piece had not taken place, but the tender of instalments of interest due was made and refused. He would point out to his Honor that the action was brought by the plaintiff respecting the piece of land on which no default bad been made. With respect to the other piece, the mortgagee had availed himself of the power given to him under the Land Transfer Act, and there was no power in the Court of re-opening, as submitted by his learned friend. He therefore asked his Honor how could the question of consolidation arise when the plaintiff had obtained an order of foreclosure from tho District Land Registrar. There was therefore no shadow of right for the mortgagee to set up the doctrine of consolidation. If he was correct in this point it disposed of the case. But oven supposing ho was not so, then his strong point was that the defendant under the Conveyancing Ordinance still had a legal estate, no default having been mode. Another question was, whether consolidation could arise with respect to two pieces of land being under two different Acts—one under the Conveyancing Ordinance, and the other under the Land Transfer Act. There were not two estates, hut an encumbrance and estate something similar to an agricultural lien ard a mortgage of land. For these reasons he submitted that the plaintiff had no right to possession. Mr Stringer replied, submitting that the doctrine laid down in Cummins v Fletcher proved that in this case the plaintiff had a right of consolidation, and that default being made on one piece of land, default was made on all. Therefore the principal money became due, and the mortgagee had a right to foreclose and enter into possession. As regarded the contention of his learned friend that consolidation could not take place over two different securities, he would point out that it had been held that it could be done. His Honor took time to consider. XONSH (APPELLANT) T BENCE (bESPONDENT.) Mr G. Harper applied herein for the special case to be returned to the Resident Magistrate at Timaru for re-statement. The appellant had in the Court below laid an information against the respondent for a breach of the building by-laws. The case as now stated did not disclose the reason which induced tho magistrate to decline to allow of an alteration of the description in the information, for which reason he had dismissed the information. There was no appearance of the respondent. Mr Harper read affidavits bearing on the matter. His Honor pointed out that the affidavits of Mr Ferry, the solicitor, and the case sent up by Mr Beetham were entirely different. Ultimately it was agreed that the matter should stand over.