CONCERNING SALE OF WHYTE'S HOTEL.

Manawatu Herald, Volume XXXII, Issue 880, 18 August 1910, Page 3

CONCERNING SALE OF WHYTE'S HOTEL.

EASTON AND AUSTIN v. STANSELL. The hearing of a case affecting the ownership of a piece of land in the town of Foxton was begun in the Wellington Supreme Court on Tuesday, by Mr Justice CooperThe plaintiffs are Frederick Spencer Easton, farmer of Foxton, and Barbara Ellen Austin, of Foxton, executrix of the will of the late Herbert Austin, of Foxton, flaxmiller, and the defendant is John Rainbow Stansell, of Shannon, auctioneer. According to the statement of claim, the defendant in August, 1906, was the owner of Whyte’s Hotel and premises at Foxton, including an allotment in Te Awahou Block, measuring t acre 1 rood 24 perches. The whole of the property was leased to Thomas Haywood, in terms of a deed of lease dated April 2, 1901, and made between Andrew James Whyte and John Russell Whyte of the first part, Arthur Clement Stansell of the second part, and Thomas Haywood of the third part. On August 31, 1906, the defendant, J. R. Stansell, entered into a contract in writing with the plaintiff Easton and the late Herbert Austin for the sale to them of the hotel and premises for subject to the lease to Haywood. The purchasers took possession, and the whole property is now in the possession of the plaintiffs, but in the conveyance of sale, dated October 31, 1907, the small piece of land in the Awahou Block was not mentioned, the omission being due to a mistake on the part of the signatories on each side. The purchase money was paid in full, and the purchasers were put in possession of the whole property by the defendant, subject to the lease to Haywood, It was also alleged in the statement of claim that the defendant refused to transfer the allotment of the Te Awahou Block to the plaintiff. The plaintiffs, therefore, claimed that the agreement of August 31, 1906, should be amended by including the said parcel of land, and that the ueieudant should be directed to execute a transfer of the land to the plaintiffs. In an amended statement, the plaintiffs made additional claims for general damages and ,£5Ol in the event of delendant failing to complete the contract. The statement of defence alleged that if the allotment in question formed portion of the “hotel and premises,” it was only such by virtue of a lease from A. C. Stansell, defendant’s predecessor in title, to Thomas Haywood, which lease included the said land. Defendant admitted the agreement to sell to Easton and Austin, but denied that he agreed therein, or otherwise, to sell the allotment in the Te Awahou Block, He also .denied that he put them in possesion of the allotment. If they took possession, they did so as purchasers of the lease to Thomas Haywood. He denied that they had been, or were now, in possession of the allotment, but said that if they were, such possession was referable to the lease from A. C. Stansell to Haywood. As a second defence, he denied that he had made any agreement relating to the matter, except the one admitted above, but it he had, it was not actionable by reason of noncompliance with section 4 of the Statute of Frauds (29 Charles 11, Chap. 3). As a third defence, he submitted that the plaintiffs, by their laches, had precluded themselves from taking this action, as the defendant, in ignorance of any claim by them, had on March 3, 1909, mortgaged the land in dispute to the National Bank of New Zealand,'Ltd., for ,£SOO. Mr C. H. Treadwell appeared for the plaintiffs and Mr A. A. S. Meuteath for the defendants. The hearing occupied some hours, and during yesterday’s proceedings Mr A. A. S. Menteath, tor the defendant, asked a nonsuit on the ground that certain evidence was inadmissible owing to lapse of time. His Honour adjourned the hearing to consider the point. He did not expect to be able to decide it before the end of the week.