DISTRICT COURT.

Hawke's Bay Times, Volume 19, Issue 1364, 2 July 1872, Page 2

DISTRICT COURT.

THURSDAY. JUNE 20. The Queen on the prosecution of Frederick Sulton v. Paora Toroioro for perjury, In the matter of an order of the Court calling on Frederick Sutton to show cause why the indictment should not be quashed. (Report of Decision continued from last night's Times.) Equity treats non-disclosure as fraud, when the circumstances are such that honesty and fair dealing enjoin that the particular fact should be made known. If a purchaser conceal a fact from his vendor which is material to the transaction between them—knowing that the other party acn on thepiesumption that no such fact exists—it is as much a fraud as it' the existence of such fact were expressly denied, or the reverse of it expressly stated. " A single word," said Lord Campbell in Walters v. Morgan (3 D F. and J. 724), "or even a nod, or a wink, or a shake of the head, or a smile from the purchaser, intended to induce the vender ro believe the existence of a non-existing fact which might influence the price of the subject to be sold, is a fraud at law," It is also a ground for the gravest suspicion that a vendor, unable to protect himself, was, at ihe time of divesting himself of his estate, without professional assistance, and that the purchaser had supplied him wich alcoholic drink before he executed the conveyance. Mr Cash more supplied Paoro with timber for the erection of a new house. It could hardly have been the interest of Cash more to «uehim forthe price of the timber, since he had his mill on Paoro's land, and it would have been so ea.-y to arrange io take the debt out in standing trees. A suit, however, was instituted in the Supreme Court, and judgment for want of a plea was given against Paoro for some .£l9O, in June, 1869. A deed, dated July 19, 1869, purporting to be a mortgage from Paoro to Cash more to secure payment ot £2lO, was registered on the 24th of the same month. The term was for six months only, with power to sell in case of default. On the Bth Septe nber following, Cash more assigaed to Mr Kinross, covenanting that Paoro owed him then the JC'2lO and ,£23 in addition The right to sell the land, in default of payment, vested in the assignee, on the 19lh January, 1870.

The object of the solicitor for Mr Cash more, at the hearing of the application for the injunction on the 4th October was, to show that Cash more had a right to he where he was, sawing Limber on Paoro's land, and that Paoro had sold the land to Sutton, and that the latter had paid the purchase-money. I was particularly struck at no mention being made of the alleged mortgage from Paoro to Cashmore, nor of how Sutton had, according to his agreement with Paoro, satisfied Cashmore's claim. After the deed of mortgage from Paoi o to Cashmere had been put in, and Paoro had said of the name subscribed, " Yes, that is my handwriting," the deed wan never once alluded to, nor was a single question put to Cashmore, when examined, respecting it, although that deed would have been a good defence, as the power to sell had vested in the assignee of Cashmore on the 19ih Jan., 1870, and if it had not been already exercised, might be so at any moment. On the two occasions on which Paoro requested Cashmore to desist from cutting timber on the land, Cashmore never said to him, " Fou mortgaged your land to me; I am mortgagee in possession; I, or my as-ignee, MiKinross, can sell the hind at any moment.'' When Paoro was infonned in the court, at the hearing, that the first deed which had been put into his hand was a mortgage from himself to Cashmore, he exclaimed, with the surprise and frankness of an honest man, " Well ! 1 owed Cashmore the money, I asked Sutton to pay it to him for me, but I did not know until now Ih&t F had mortgaged my land to Cashmore." The deed of the 18ih April, 1869, which Paoro said he had never signed, v\rs legistered on the 19th April, 1870. At whatever times Mr Sutton and his interpreter were at Paoro's house to treat about a mortgage or sale of his land, it appears, beyond all dispute,

thai Paora had no knowledge then of the mortgage to Cash more. His very object in raising money was to pay niT CashmoreY judgment debt. Mr Sutton save, —" We agreed for ,£SOO, of which c£2oo to be paid to Cash more." And the interpreter say. 4 *, —" £SOO was the purchase-money, but he insisted on {something being paid in addition to> that. . . . The reason of it was that Cash more was pressing him for payment of a debt; he said so at the time.. This took place at Paoro's own Houseat Pakowhai." According to the statement of Paora, which is corroborated by that of Mr Sutton and his interpreter,, ,£SOO was the consideration to be paid to Paora, whether the transaction was a mortgage or a sale of land. Mr Sutton and his interpreter say they saw Paoro execute the deed of the 18th. April, 1869. If they really did so, it. follows that they induced him to sigiii a document— which, whilst it- etiectually divested the old man of his. estateand vested it in Mr Sutton, put it out of his power to recover one penny of the mortgage or purchase-money. Thedeed sets out that " in consideration of' the sum of three hundred pounds sterling paid by the said Frederick Sutton to the -aid Paoro Torotor thereceipt whereof is hereby acknowledged," the said Paoro conveys all his. estate in Mangatereterc West block of land to the said F Sutton. This effectual ly disposes of £3OQ out of the £500.. And how is the remaining £.200 paid? to Cash morel' In a very simple manner. The deed then goes on to. H<xy : " Subject nevertheless a cer ; tain deed of mortgage dated the 19tlii day of July, 186.9,. made between the said Paoro and Robert Ca>lunor.eto secure payment of .£2lO and interest." Mr Sutton carefully concealed from Paoro- the- existence of the alleged mortgage from Paoro to Cashmore, and both lie and the interpreter say that the deed was interpreted to him. If it had been interpreted, Paoro would. have known of the mortgage- to Cashmire, and if he had known that, kawould not have mortgaged or sold his land at all, sine* it was merely to pay off Gashmoro's judgment-debt that hewanted to raise money.

The usual mode of effecting sales of land is this. The intending vendor and purchaser meet together and arrangethe terms and conditions of sale. Then, a short memorandum of the transaction, is drawn up and signed by bo 111 parties* Next, the purchaser, who usually pay* for I he conveyance, takes the memo, to* his solicitor, and gives the necessary instructions for the preparation of the deed. When that is done, the parties* with their respective solicitors, meet together, when the deed is read over,, and then signed in the presence of witnesses. The intending purchaser never goes with a deed all ready for signing. The bare fact of his doing so would at once arouse suspicion. Both Mr Sutton and his interpreter have deposed that they saw Paoro sigi* the deed of the 18th Apiil, 1869, aud that he signed it on the day of the date.. The deed makes mention of a transaction which did not take place until threemonths after that time,, namely, the alleged mortgage from Paoro to Cashmore, which is dated July 1%. 1669; How could they have seen Paoro sign? the deed on the day they mention,, when the deed could not have been in existence on that day I The deed could not, in the natural course of things,- j have been drawn up until after the moitgage to Cashmore. Thereto account for so glaring a discrepancy, there is a foot-note to the deed which informs us that, by mistake, 1869 wa* tiled in instead of 1870. It does mrt r however, appear that the date w»* filled in at all. The date, with the woids preceding and succeeding, liasall the appearance of having been regularly and carefully written: tbeiei* 1 nothing in figures, all is written in let- I ters. The deed appears to have been B prepared in a solicitor's office, and' 6 a is most improbable that any person ac- ■ customed to engrossing would make » M mistake m writing the number of tiw ■ year, when it had advanced as tar a* ■ April, the fourth month. The foot-note M is not signed by either of the allege fl parties to the deed, but it-is signed ty fl the interpreter, a stranger to the deed M The foot-note is no more a part of tbe jB deed than if it had been' written on * 1

separate sheet of paper. The day of the date is therefore the IBth April, 1869, and Mr Sutton and his interpreter have deposed they saw Paoro sign the deed on that day. Mr Sutton, wtthout any reference at all to the deed, says,—" T purchased Paora's share for £SOO in 1869. The conveyance is in court." And the interpreter says,—-" It was executed in my presence by the said Paoro Torotoro on the day of the date." Mr Carlyou : That deed ought never to have been registered. The Judge: I think so too. Then, admitting the statement in the foot-note to be true, it would follow that the deed was executed on one day and registered on the next. Mr Sutton went to Paoro's, as he say 3, to negotiate. Did he or the inteipreter prepare the deed at Paoro's, and it* so, where did they get the writing material ? Does Paoro keep engrossing paper at his house ? Did they take the deed with them? and if they did, in whose office in Napier was it prepared ? Also, admitting the foot-note statement to be true, it would follow, from the evidence of both Mr Sutton and his interpreter, that Paoro, on the 18th April, 1870, did not know of his alleged mortgage to Cash more on the 19th July, 1869. In his deposition before the committing magistrate, Mr Sutton says he paid the £3OO to Paora by placing it to his credit, and that there was a balance of £4B in Paoro's favor after deducting it from his account. This does not account for the £2OO which was to have been paid to Oashmore. At the hearing, on October 4, Mr Sutton never once hinted that Paorp was in his debt; on the contrary, he cither felt or feigned surprise at Paoi o's saying he received but £lO in money. Nothing was said about placing anything to his credit. " I paid purchasemoney partly in money ; and partly in goods to Paoro; I paid over £l5O in cash." These were his words. Tf Paors conveyed his estate in consideration < f money due and owing to M r Sutton, why was it not mentioned in the deed ? When a man, under pressure from importunate creditors, sells or mortgage* bis land to raise money, lie <loes so tor cash, and at a sacrifice. Ho stipulates for monev down, and does not reckon on being paid by making an entry in a hook- -a novel and inexpensive mode of acquiring landed property. It is only justice to Paoro, who has had twice to appear in a felon's dock, to say that I believe the man did not com mit perjury nor ever intend to do so, that I have no doubt he believed every word he uttered to be true, and that I see no reason whatever to doubt his statement as to the name subscribed to the deed in question not being his. Ordered that the indictment in the cause be quashed, that the bail of the defendant be discharged, and that he himself go without day.