SUPREME COURT SITITNGS, Saturday, May 13, 1848. Scott v. Grace.

New Zealand Spectator and Cook's Strait Guardian, Volume IV, Issue 292, 17 May 1848, Page 2

SUPREME COURT SITITNGS, Saturday, May 13, 1848. Scott v. Grace.

His Honor Mr. Justice Chapman delivered the following judgment in this case : — This is an action brought by the plaintiff, Mr, David Scott, to recover possession of a piece of land in the occupation of the defendant, and comprised within a larger parcel claimed by the plaintiff under and by virtue of a deed of grant made to him in July, 1845, by Governor Fitzroy, under the public seal of the colony. The action has been for some time before the Court ; but has been permitted to slumber since the month of September, 1846, pending an action upon a writ of scire facias, sued put by the Principal Agent of the New Zealand Company against the now plaintiff, to try the validity, of the deed of grant. Several issues- of fact being raised upon the pleadings in that action, the verdict of a jury became a necessary preliminary to the judgment of the Court. It happened unfortunately that the-jury impannelled in May, 1847, could not agree upon their verdict, and they were- ultimately discharged by the Court. Two terms having elapsed without any further proceedings in that case, the plaintiff has exercised his undoubted right to prosecute his original action ; and although for the purpose even of indirectly trying the grant it is restrained within very narrow limits, and is in all respects far less complete, and consequtntly less satisfactory than an action upon a writ of scire facias, yet it may possibly have an equal effect in quieting further suits, and saving further expense to the parties. At the trial, for the purpose of showing a legal title in himself, the plaintiff (who conducted his own cause with the assistance, as ' it appeared, of Mr. Hart and of Mr. King) relied upon his Crown -grant, duly executed under the public seal of the colony ; and he proved, by the evidence of an experienced surveyor, and other persons, that the piece of land sought to be recovered. is comprised within the larger parcel embraced, by the. grant. He also gave evidence of the annual value of ,

the land, so as to enable the jury to assess the amount of mesne profits. This constituted his case. For the defence, Mr. Wakefield objected : first,- that there ought to have been a demand of possession, by the plaintiff, before action brought ; but I thought otherwise, and overruled the objection. Secondly, he produced a deed by which Mr. Grace, the now defendant, had conveyed the land in question to Mr. Fox of Nelson, to secure a certain loan, and for other purposes in the said deed mentioned, and Mr. Wakefield contended that the action was wrongly brought against the tenant in possession, and that Mr. Fox was the proper defendant. This objection I also overruled. Mr. Wakefield then referred to the Land Claims Ordinance, Sess. I, No. 2, and submitted that the recital of the Commissioner's Report in favour of a grant of land which forms part of the town of Wellington, was contrary to the 7th Section, of the ordinance, and that the Crown had been deceived in its grant. Moreover, the grant' itself, he contended, was illegal and void, being contrary to the said ordinance, and to the spirit thereof. Mr. Wakefield also elicited by his eross r examination of the plaintiff's witnesses, that there is some ambiguily and uncertainty in the description of the boundaries, and he strengthened this view by independent testimony called for the defence. I did not, however, think that these points, namely, the alleged deceit, illegality, and uncertainty, were so made out as to affect the plaiutiff's right to recover in this action, and the jury under my direction found for the plaintiff; but I gave Mr. Wakefield leave to move on all or any of the points, if he should think fit, to set aside the verdict, and to enter a non-suit, should the Court, on deliberation, be of opinion that the plaintiff had failed to establish his right to recover. On the question of raesne profits (which under the practice of this Court can be recovered without a separate action — the Ist Geo. IV, c. 87, which applies to ejectment by landlord against tenant only, being here extended to all cases) the plaintiff claimed previously to the date of his grant, and back to the •ommencement of the defendant's occupation in August, 1840, under the authority of the Land Claimants' Estate Ordinance (Sess. iii, No. 20), which makes the legal estate of the grantee relate back to the date of the original purchase. Being , myself, des^ous^ of considering the' effect 'of ibis' 'ordinance dt my leisure, I requested the jury to separate the amount they might find the plaintiff entitled to, into two parts, namely, so much as they might consider to have, accrued subsequently to the date of the grant, and so raucWas they might find to have accrued antecedently-there-to. The jury did so, and Mr. Wakefield now moves to reduce the damages for mesne profits by striking out the portion accruing antecedently to the date of the grant,amountin|; to 123/. After having had ths subject of Governor Fitzroy's grants a good deal before my mind for a considerable period ; having, moreover, with as much care as I am master of, considered the law in relation to grant's of the Crown, in so far as the same is applicable to the colonial possessions of the Queen, and especially as applicable to this case, I have come to the conclusion that the verdict in this action cannot be disturbed ; and I will proceed to state my reasons for this conclusion, as nearly as convenient, in the order in which the points have been raised. , Aud, first, as to the two preliminary points, which I think hardly merit the importance with which they have been, clothed, The rationale of a demand, of possession I take to be this : The action of ejectment, which this action follows, is in its nature a species of action of trespass ; i. c., it presupposes the defendant to be a wrong-doer. But there cannot be even .a constructive^espftse^q^ong as the defendant is in possession by the license or permission of the plaintiff. Hence, in all cases where the defendant holds by the express or implied permission of the plaintiff, something must be done to change the relation of the parties ; or, as the phrase is, to determine the will. The simple expedient for this purpose is a demand of possession, followed by a refusal to comply with that demand ; which refusal, express or implied, has the effect of converting the originally permissive holding, — or say the tenancy at will, — into an adverse, and therefore wrongful holding. Where the plaintiff means to show that the possession of the defendant is, and has all along been adverse, where there never existed any privity between the plaintiff and defendant, no demand of possession is necessary. If Mr. Wakefield will take the trouble to go through the cases, as collected in any of the Nisi Print books, in which a demand of possession has been held necessary, he will find them to amount to a tenancy at will (the lowest estate known to the law) created by a permissive occupation ; the demand being only for the purpose of getting such an express or implied refusal, at will at once render the . occupation . adverse. The only claw of cases which seems not to