COURT OF INQUIRY.

Hawke's Bay Times, Volume 19, Issue 1346, 11 June 1872, Page 2

COURT OF INQUIRY.

(Before Hanson Turton, Esq., Commissioner under the " Native Land Frauds Prevention Act.") DECISION. In the matter of an application by the hon. Henry .Robert Russell, of Waipukuvan, Hawke's Bay, for a certificate to be endorsed under ihe Native Land Frauds Prevention Act, 1870, on a deed of lease dated the 25th day of April, 1872, made by Hirika to Aroatua and Arihi te Heipora, of the one part, and the said Henry Robert Russell of the other parr, of the undivided .share or other part of Hirika le Aroatu and Arihi te Heipora, of that parcel of land in the district of Ahuiiri, Hawke's Bay, called the Heretaunga block, and containing 19,385 acres. Mr Lascelles appeared on behalf of Mr Russell, and also on behalf of Hiraka te Aroatua and An hi te Nahu. The lease is for the term of 3 years from the hb day of April, 1872, and the rent to be received is Jt'3s3 per annum, payable by half-yearly payments on the Ist day of October and April in every year. In addition to the usual covenants and poweivjcontained in leases of a similar nature, the lease contains an agreement that if a- any time during the term the lessee should be desirous of becoming the purchaser in fee-simple of the undivided share demised for the sum of £6OOO, then the le.-see should be entitled to become the purehasei at that sum, and the lessors would convey to the lessee the undivided share of the said block of land, free from incumbrances There is al u o a covenant by the lessee that he would, in the event of becoming the purchaser of the undivided share, reconvey to Arihi te Heipora a portion of the said block of land, to comprise 200 acres. There is also an agreement that all ad\ ances made by the lessee to or on accoun..- ot A run te Heipora during the term of the lease, over and above the annual rent of .£350, should, in the event of the lessee becoming the purchaser, be considered as part of the purchase money of .£6,000, and be deducted with interest at the rate of 8 per centum per annum from that amount accordingly ; and there is fuither, and lastly, a covenant by the lessors, that they would, i+* required, execute a valid security over the said land to secure to the lessors the amount of such advance with interest. The lease is executed by Hirika te Aroatua in the presence of 15. S. Maunsell, licenced interpreter, Wairarapa,. and Henare Matua, an aboriginal native; by Arihi te Heipora, in the presence of E. S. Mauusell and George Lloyd, licensed victualler, Waipnkurau ; and by H. R. Russell, in the presence of E. S. Mauusell. The usual statutory declaration by licensed interpreters is endorsed on the lease.

Mr Lee appeared on behalf of James Gillon Gordon, Andrew Hamlin Russell, John Davies Oimond, James Nelson Williams, and Thomas Tanner, who claimed as owners of the fee simple in possession of the block, and objected to the granting of a certificate. Mr Stedman appeared on behalf of the Trust and Loan Company as mort<wees of part of the block, and also objected to the granting of a certificate. Ml- Wilson appeared also and objected to the granting of a certificate, representing that he was a trustee under the deed of settlement dated Bih Sept., 1869, of Alibi's interest in the block. It appears from the documentary e\idence pioduced in this inquiry, that the Heretaunga block wa«* originally granted by grant from the Crown dated Ist April, 1867, to Arihi te Heipora (or Arihi te Nabu) and 9 other natives, not, however, including her husband Hiraka, and that subsequently, and on the Bth September, 1869, Arihi conveyed her interest in the block and other lands to Messrs Wilson and T. P. Russell upon trust (inter alia) for Arihi during her life, after her death to Hiraka during his life, with remainder to the children of Hirika and Arihi. Hiraka had joined in the settlement and had convoyed to the trustees upon the same trusts such interest in the block as he had by virtue of his marriage with Arihi. Subsequently and by deed of conveyance dated 27th day of March, 1870, it would appear that Messrs Wilson and T, T. Russell, re-acting trustees, exer-

rising the implied powers in the settlement, sold, with the consent of Hiiaka and Arihi, the original share of Arihi in the block-;"! to Messrs Gordon and others, the present objectors, for £2,500 paid to the trustees with Hiraka and Arihi's consent. By the same deed of conveyance, six other of the native grantees also sold to Messrs Gordon and others their interest in the same block, for .£13,500. Mr H. R. Ru«sell admitted during his examination, that the settlement was made in his house, and that latere Arihi's share in the block had been conveyed to Jllpssrs Gordon and others a* alleged, and that some time before December 1869 negotiations were pending lor the purchase by him of Arihi's and Hiraka's interest in the block on account of Mr John Purvis,, and that Mr Watt had asked him lo retire from the negotiation in his (Mr Watt's) favor. At first he (Mr Russell) demurred to this, but after some considera(ion agreed to make a joint purchase of Arihi and Hiraka's share with Mr Watt; and he believed that Mr Watt purchased the share on their joint account. The share was then sold by Mr Watt to Messrs Gordon and other for .£2,500, which was paid to the trustees ef the settlement, a portion of that sum, namely, £ 1,000, being, handed over lo Arihi and Hiraka. To this sale Mr H. R. Russell gave his? reluctant consent, and for doing which he received a consideration. On Arihi being examined, she adra'tted the settlement, and the subsequent sale thereunder to Mr Watt; also the payment of the 11101103% i-2,500, bv him,, of which .£I,OOO was received by her, and ,£1,500 «iven to the trustee**. Shestaged further that i-he had received interest on the sum of £1,500 through MrT. R Russell, one of the trustees,, the. last payment being made after shearing this year. Hiraka acknowledged that he recollected executing the settlement, hut he did not remember signing the conveyance, though he knew of the sale to* Mr Watt for i-2,500; also that Arihi has received interest on the money in the hands of the trustees, and thache has not objected. As regards the lease under notice, both Ahrihi and Hiraka admitted that they understood itj and not only wished to be bound by it,' but to repudiate the settleirent and conveyance. It was mentioned by Aiihi and others that she (Arihi) was not of full age when she executed the settlement and conveyance; but on this point I have received no evidence, and the age of infancy, therefore, does not enter into my consideration. The material parts of the ohjeclions of Mr Gordon and others to the lease —on the ground that the estate and interest of Arihi and Hiraka was believed, some considerable time past, to have been conveyed to them with the knowledge and consent of Mr H. 11. Russell, —having been admitted, the point for determination is, whether it is my duty, in giving my decision on this application, to consider this transaction simply as between the immediate parties to the lease, as urged by Mr Lascelles, on the ground that the object of the Act is to protect the natives against Europeans; or whether I am justilied in regarding the evidence pi oduced by Mr Lee and Mr Wilson for the purpose ot attaching fraud to the deed as between the parties to it and third persons. Now the Fiauds Act, in its " 4th section, exacts that no alienation .... of land held bv any native or natives under title derived from the Crown .... shall be valid if such alienation shall he contrary to equity and good conscience " 11 is not for me here to determine whether Arihi and Hiraka parted before the date of the lease with tho whole of their interest in the Heretaunga block or not—it is quite sufficient for me to assume that they either hold or claim to hold an interest in the land ; otherwise T would be going beyond the limits of my powers under the Act. Assuming, then, that the lease under notice either is an aliena tion or an attempt at alienation of land held by them, 1 must resolve whether J am satisfied that the transaction is one against equity and good conscience, within the meaning of the Fratul* Act. It is? obviously necessary

in . transactions of this nature, to ascertain the evils which existed before the passing of the Act, and for remedying which the Act was passed. Seeking in the Act for an indication of the abuses existing before the passing of the Act, I learn from its title that it is "An Act to prevent improvident dealings and frauds upon the alienation of lands owned by natives," and the preamble recites that " there is leason to believe that fraud* and abases are practised in connection with the alienation of land by native proprietors," &c. It is not stated by whom the frauds and abuses are created ; whether between the immediate parties to the instrument, by the native alienors, to the injury of the European alienee, or by the European alienee to the injury of the native alienor; or whether by the immediate parties themselves, or either of them, to the prejudice of third persons. Considering a deed which might be against equity and good conscience, as between the immediate parties thereto, it appears to be the duty of the Trust Commissioner to protect the European against the native as much a* the native against the European. For instance, if a European buy a parcel of land for a sum of money upon an agreement that the money is to be paid when the Trust Commissioner has endorsed his certificate on the deed of alienation ; and afterwards the European discovers that the native has sold the land to someone else, it would be rignt for the Trust Commissioner to refuse his certificate to the deed, and thereby protect the European against a fraud being committed upon him by the native. In reading that part of the 4th section which prescribes that "no alienation .... shall be valid if s,ueh alienation shall, .... in the case of land held under any trust, if the same shall be in contra vention of the trust affecting ihe said lan I, 01 is not made in conformity with such trust," &c, with the second part of the preamble, as follows " that there is reasou to believe . . . that lands held by them (i.e., native proprietors) upon trusts, have been improperly disposed of and dealt with,"-—it appears clear that the Legislature intended that the inquiries of Trust Commissioners should not as regards trusts be confined to the immediate parties to the deed. This, then, is a reason why the Trust Commissioner should not either be confined to Hie transaction as between the immediate parties to a deed in alienations in which it may be alleged that frauds exist, or are against equity and good conscience. The Frauds Act, moreover, is a remedial statute, and must, according to well-known and proper rules of consiruction, be interpreted liberally. Looking at the nature of the several" provisions of the Frauds Act—the character and object of the Act—l see no reason to limit the meaning of the Act, that no alienations should be valid if contrary to equity and good conscience, to alienation in which the immediate parties to the instrument of alienation only are alfected ; or for the prosecution only of uatues against Europeans, as contended for by Mr Lascelle;. It is not necessary for me to indicate to what extent, in my opinion, inquiries .should be made; suffice it, that in this case, I consider that Mr Lee and Mr Wilson have succeeded in attaching fraud to the under notice; that the lease is a fraud by both parties to it, to the prejudice of third persons. 1 am of opinion, therefore, that this alienation comes within the mischief existing under the old law, and which the fraud Act, when it wa- parsed, was designed to remedy-—and that it is consequently against equity and good conscience. To sum up, therefore, the conclusions to which I have come, the facts in this case are as follows:—1. That by deed of settlement, dated the Bth day of September, 1809, (Register No. 4035) made between Ilirika te Aroatua and Arihi te Heipora of the one p»rt, and Donald Go! lan, Thomas Purvis Kussell, and John Nathaniel Wilson, of the other part; and subsequently by a deed of conveyance dated the 22nd day of March, 1870, (Register No 5895) made between Henare Tomoana and others of the first part ; Thomas Purvis Kussell and John Nathaniel

Wilson of the second part, and James Gillon Gordon, of the third part, * the said Hirika and Arihi appear to have pai'ted with their estate and interest in the Heretaunga block. 2 That subse* quently to the execution of the said settlement, but previous to the signature of the said conveyance, Mr Watt had con traced to buy" the estate of Hirika arid and A rihi in the Heretaunga block from the trustees of the settlement, and Arihi, on the joint account of himself and Mr H. R. Russell, and that the beneficial interest in re said contract was transferred or disposed of by Mr Watt with the consent of Mr H. R. Russell, to Messrs Gordon and others, the present objectors, for ,£2,500, of which sum £1,500 was retained by the trustees of the settlement, and .£I,OOO was given to Arihi and Hirika. 3. That the said H. R. Russell has re ceived a valuable consideration for giving his consent to the sale of the beneficial interest on the said contract, by Mr Watt to Messrs Gordon and others. Applying then, the law as understood by me, to the facts, I am of opinion : 1. That the lease under notice is a fraud by Hiraka an I Arihi with the knowledge and consent of Mr H. R Russell, on Messrs Gordon and others, the present objectors. 2. That the lease is again>b equity and good eonscience, and consequently null and void. Certificate withheld.