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SUPREME COURT.

NISI PRIUS SITTINGS. Tuesday, April 13. (Before his Honor and a common jury.) MCKENZIE V. HALL AND HIRST. Mr. Travers appeared for the plaintiff, Mr. Izard for the defendant Hall, and Mr. Bell for the defendant Hirst.

The action was brought to compel specific performance of a contract, the defendant Hall having in the year 1855, as alleged by the plaintiff, sold to him a town acre in Masterton, Wairarapa, for which he refused to give a title. The defendant Hirst was included in the action, he being now the possessor of the acre, having purchased from Hall. Sir. Travers, in opening the case, gave a review of the circumstances which led to the action, which were narrated in the following order :—Many years ago, an association called The Masterton Small Farm Association, was established in this province, the principle of which was, that a block of land was to be purchased and divided into 100 town sections, the persons who became shareholders or members of the association being entitled, by virtue of membership, to purchase one town acre and forty acres of suburban land. The scheme was somewhat similar to other land schemes started in the colony, the greatest of which was the New Zealand Company. Mr. John Hall, the father of the defendant Robert Hall, purchased in the name of a Mr. George Bull, a town acre numbered 90, and a suburban section numbered 47, Mr. Bull being an uncle of the defendant, Hall. The purchase in the name of Bull was probably an evasion of the regulations, which stipulated that the sections should be occupied or improved, and as Mr. Bull never came to the colony, that condition Was not likely to be fulfilled by him. However, that mattered little. The purchase in his name was effected on the 28th November, 1854, the receipt given by the Commissioner of Crown Lands being in these words ; “ Received from Mr. George Bull, in payment for 40 acres of rural land at the small-farm settlement of Masterton, the sum of £4O sterling.—David Lewis.” The jury would observe that the title to this land would come direct to Mr. George Bull from the Crown, but the title to the town acre, No. 90, would be derived from the trustee to the association, who purchased from the Crown the block of laud which was subsequently divided into the 100 sections. That trustee was Mr. Charles Booking Carter. It appeared that Mr. Bull’s name was used by Mr. John Hall, without the knowledge of Mr. Bull, or without his sanction, and that, therefore, he was not in effect the real owner ; for, after making a contract, which would be referred to during the progress of the case, Mr. John Hall addressed a letter to Mr. McKenzie, in which he stated that Mr. Bull was only nominally the owner; that he (Hall) was the person entitled to the property ; and that he intended to carry out the contract and complete the sale to McKenzie without the intervention of Bull at all. The letter [which was read] showed that the land was bought with his (Hall’s) money, and that the purchase in the name of Bull was an evasion of the regulations of the Small Farm Association. In December, 1855, McKenzie and John Hall discussed the preliminaries of the purchase, and the plaintiff would tell the jury that when he bought the property he bought the whole of it —the suburban section and the town acre—his words being that he must have the whole interest of Bull or Hall, whichever was registered as the owner. The sale was concluded at the Taita, in the presence of McKenzie’s brother, though he was not in a position to state the exact terms of what took place. It was clear, however, that Mr. Hall drew out a certificate, dated 18th September, 1855, which was in the following words:—“l have agreed to sell to Alexander McKenzie suburban section 47, at Masterton. Received payment, £23. John Hall.” Immediately underneath these words, and to show that he had not merely purchased the suburban section, but the town section also, was written the words, “Town acre No. 90.” Upon this McKenzie took possession of the acre, and remained in possession to this day. At various times McKenzie applied to Hall for a title for the town acre, and a correspondence upon the subject took place. The matter was then allowed to remain in abeyance until the 12th March, 1863, when Mr. Hall gave Mr. McKenzie the following letter, addressed to Mr. Carter, the trustee of the association :—“ Mr. Carter, —Sir, —As I have been authorised by power of attorney to sign conveyances for section 47 and town acre No. 90 to Alexander McKenzie, I shall be ready to sign at any time.—Your:-, John Hall.” This letter was given to Mr. McKenzie by Mr. Hall, who told him that it would be sufficient authority to Mr. Carter to make out the conveyance for section 90. Mr. McKenzie, however, was unable to see Mr. Carter, although he was in the district at the time, and very shortly after Mr. Garter went away to England. It might be that Mr. McKenzie did not exhibit proper diligence in the matter, but relying on the good faith of Mr. Hall he did not take those steps which he ought to have taken to make himself secure. He believed he would get the title some time or other, and none of the parties entertained a doubt that he would get it, but the fact was, Masterton was a rising township, and offered temptations to do things now which it did not offer at the time of the original purchase. Probably had Mr. McKenzie taken proper steps to obtain his title when the property was of little value, there would have been no difficulty about the matter. The jury would have to be careful not to confuse the two

Halls, and would have to bear in mind that it was not John Hall who was the defendant in the action, but his son Robert. It would seem, then, that John Hall dealt with this town acre in some way or other in favor of his son Robert, who had since obtained a conveyance of it from Mr. Bull and Mr. Carter, so that they now found the title thus : Carter to Bull, Bull to Hall; these deeds being registered. Mr. Robert Hall having obtained a conveyance, and knowing apparently that McKenzie had none, although he was in occupation, wrote a letter to McKenzie, and this letter was extremely important in view of the legal aspect of the case. It was dated Greytown, November 14, 1873, and read as follows :—“ Mr. McKenzie.—Sir, —My father has informed you that I have bought town acre 90 from my uncle, George Bull, and I am now in a position to deal with it. As you have held it so long, I wish to give you the first refusal of it. The price is £l3O. Let me know by the Ist of the month whether you will accept. If you do not accept by that date, the offer to be null and void.” That letter distinctly referred to two points. One was that John Hall had informed McKenzie of the sale of the acre to Robert Hall, which McKenzie would tell the jury was not true, and the other was that McKenzie had held the property “for a long time and he would ask them to mark the latter point, because it had an important bearing on the legal questions which would arise. McKenzie was astonished to receive an offer to buy the property under such circumstances, having bought it years before. He was in possession under his contract with John Hall, and was entitled to have that contract fulfilled. He had rested in perfect security for a number of years in the full belief that John Hall would do his best to procure a title to the land and hand it over to him (McKenzie), more especially as he had in his letter to Mr. Carter informed that gentleman that McKenzie was the proper person to receive the title. The plaintiff, of course, took no notice of -Robert Hall’s offer. He treated it as a piece of “ bounce but Mr. Robert Hall, having this title, proceeded to deal with the property, and sold it to Mr. W. L. Hirst. Hirst, before he concluded the purchase, wrote a letter to a person named Wrigley, asking for particulars about the acre *, and Wrigley, who was acquainted with McKenzie, wrote to Hirst, cautioning him to be careful how he bought the property, as it was claimed by McKenzie. Hirst’s scnqdes, however, were overcome, and relying upon the title, which consisted of the Crown grant to Carter, the conveyance from Carter to Bull, and from Bull to Hall, which was opposed only by a “ man in possession,” he bought the property and took the conveyance. The action was therefore brought for the purpose of compelling Robert Hall and Hirst to convey the property to McKenzie, they being in the position of trustees for him. That brought him to the legal bearing of the matter. It was a rule of law—it was a rule of equity, at any rate—that a person who bought a piece of ground which he knew to be in the occupation of another person, bought subject to the rights of the person so occupying. It was his duty to go to the occupier and inquire under'what title he claimed possession, and if he neglected to do so, he neglected at his peril. He was bound by the rights of the person actually iu possession. He (Mr. Travers) contended that notice of a tenancy, or of occupation, was notice of the terms of that tenancy, and if that tenant was in possession under a contract for purchase, it behoved the purchaser to satisfy himself of the character of that tenure. That, however, would be a matter for the Court to decide. The question the jury would have to determine was, whether Hirst knew at the time of his purchase that McKenzie was in actual possession. He had actual notice of occupation, which should have led him to make inquiry as to the title, and, these being the facts, he would now call evidence to substantiate them.

Alexander McKenzie said In 1855 I met Mr. John Hall at the Taita while on my way to town from the Wairarapa, and asked him if he wanted to sell the forty acres, and the acre in Masterton. He said he intended to sell for £3O, and after some conversation, I purchased for £2B, on the distinct understanding that I was to have the acre. He said I would get the title for the acre from . Mr. Carter, and as I didn’t know the number of the town acre he told me it was No. 90. ' I then paid the £2B. The sale took place at the store of my brother, who was present, off and on, during the transaction. Hall wrote out a receipt, the money was paid there and then, and witness took possession. I afterwards applied to Mr. Hall for a title, and he gave me a letter (produced) to take to Mr. Carter, who was then on a visit to Masterton. The letter stated that he (Hall) had been authorised by power of attorney to part with Bull’s interest, and requested Mr. Carter to make out a conveyance of town acre No. 90 in favor of myself. I asked Mr. Hall to get the title because Mr. Carter was going away to England, and was giving the Masterton people a tea meeting just before his departure. I didn’t give the letter to Mr. Carter, because he left Masterton unexpectedly. I went to Wellington in search of him, and found then that he had left for England, so that I had no" opportunity of presenting the letter. Hall said it didn’t matter, as I would soon get the title, but I have neverreceived a title yet. In 1862 X instructed Mr. J. E. Smith to get my title to both sections, and he told me to go to Mr. Carter, whereupon I went to Mr. Hall and got the letter to Mr. Carter. The laud has been fenced eight or nine years, has been cropped once, and is now laid down in grass. I sold the acre to my son for £2O, and it is now in the occupation of a person named Gray, a blacksmith. Cross-examined by Mr. Izard: I sold the acre to my son eight or nine years ago. There was only one interview between me and Hal 1 at the Taita with reference to the purchase o f the land, and the receipt was written in my brother’s house. I only stayed in the house one night on that occasion, and walked back to Masterton next day. -When I left Hall, after receiving the receipt, he went to Wellington. I am positive he did not give me the receipt a day or two after, on his return from Wellington. I am positive also that I bought the town acre as well as the suburban section, but I did not apply for the conveyance of the acre until 1862, because I always trusted to Hall getting it for me. In 1862 I consulted Mr. J. E. Smith, solicitor, upon the matter, and though he told me that I had nothing to show to entitle me to possession of the acre, I did not ask him to take any steps to obtain a conveyance for it. The land remained unoccupied for a considerable time, but I had cattle running upon it as well as upon other unoccupied land. I received a conveyance for the suburban section, and although I had frequently spoken to Hall about the town acre, there is no reference to it whatever in the deed. The acre was fenced by my son eight or nine years ago. I had agreed to sell him the acre before that. I never knew or saw Hirst, and only asked Wrigley to write to him because I had been told he claimed my acre. I never received any letter from Hirst. Wrigley said he had received a letter from a man in town who claimed the acre, and it was then I asked him to write and repudiate any such claim. James Wrigley gave evidence as to the correspondence between himself and Mr. Hirst, who desired information in regard to the town acre which Mr. John Hall had offered to sell to Mr. Hirst. In hip reply to Mr. Hirst witness stated that the acre had been sold by Mr. John Hall to McKenzie years before, and that the latter had a receipt for the purchase money, but that he had neglected to obtain a title. Witness told McKenzie that Hall was negotiating for the sale of the acre, but he did not ask witness to write to Hirst, as far as he (witness) could remember. Mr. J. E. Smith, Registrar of Deeds, produced the Crown grant conveying the land upon which the town of Masterton is situate to C. R. Carter, as trustee of the Small Farmers’ Association. The conveyances of town acre No. 90 from Carter to Bull, and Bull to Hall, were put in for the purpose of establishing title. Colin McKenzie, son of plaintiff, stated that ho purchased the town acre from his father eight or nine years ago for £2O ; fenced it, and cropped it, and subsequently let it to a Mr. Gray, who occupied it as witness’s tenant upon

a, yearly tenure. 'Received a letter from Mr. Hirst inquiring why he refused to give up possession of the acre, but didn’t reply to it. Two years ago was present at a conversation between John Hall and his father, and heard Hall say that he had sold the acre to his son, Robert Hall. After the conversation with John Hall, saw a letter written by Robert Hall to witness’s father, offering to sell him the acre for £l3O. Cross-examined by Mr. Izard : there was no writing to prove a sale of the acre from plaintiff to witness. He asked his father to bring this action because he wished to obtain a title to tiie land. Mr. Izard moved for a nonsuit, upon the grounds that there never was any contract at all for the sale of the town acre; that John Hall was Bull’s agent for the sale of the suburban section, and not of the town section; that John Hall distinctly refused to sell the town acre to the plaintiff; that, even if John Hall had professed to sell the town acre, he had no authority to do so; and that any arrangement to that effect made by him was beyond his authority, and therefore could not bind those who claimed through Bulb Besides, the jury were bound to find upon the evidence before them, and there was not a tittle of evidence to show that Robert Hall was aware of what had taken place between John Hall and McKenzie. His Honor was bound to direct the jury that they could not find upon a mere speculation that the son was aware of all the father’s transactions, and, therefore, in whatever manner the father had made himself liable to McKenzie, the son was not bound to accept Ms responsibility. As to the letter from Robert Hall to McKenzie there was nothing on the face of it to go to the jury. It simply announced to McKenzie that he, Robert Hall, was the owner of the land, and that as McKenzie had been in possession for some time, he could have the option of buying it at a certain price. He contended, further, that no document had been produced or any other gypjouce of, any sort to show that the title had passed from Bull to McKenzie, and that there was not the slightest shadow of evidence from first to last that the plaintiff entered into possession with the knowledge and consent of John Hall.

Mr. Bell contended that, in order to support the declaration as against the defendant Hirst, the plaintiff was bound to show that there had been legal fraud, The plaintiff had altogether failed to prove that Hirst had had notice of a prior deed or contract; and, in support of that contention, despite the letter of Wrigley, he quoted the case Bamhardt v. Greenshields (9 Moore, P.C.), in which it was held that information given by a stranger could not operate air,notice. Here Wrigley was a stranger. He war; not employed as agent by either party. Ha had no interest in the estate, and was therefore a stranger to the title. His Honor :He was not a volunteer. He was asked by your client to report. Mr. Bell : As to the value; but then he gives evidence as to the title ; and in respect of that matter, he was a pure volunteer. Mr. Travers said the case of Earnhardt v. Greenshields made clear the point that vague rumor was not a notice, but there was no analogy between the cases, for Hirst wrote to Wrigley, and made him his agent, and thereupon Wrigley at once communicated all the circumstances as to John Hall having sold to McKenzie, who had been In possession many years. ‘McKenzie became aware of these communications between Hirst and Wrigley, and thereafter Wrigley was mutually recognised as the channel of communication between. Hirst and McKenzie. The doctrine set forth in Earnhardt v. Greenshields did not therefore apply in this case: The points raised by Mr. Izard were also combatted at length by Mr. Travers. His Honor said the case had been sufficiently gone into to show that it embraced some very difficult points, which it would, perhaps, be better to reserve for discussion before a higher court. The.best course would be to refuse the nonsuit, and give Mr. Izard leave to move to enter up judgment for the defendant. Counsel having assented to this course, Mr. Izard made a brief statement of the ■ defendant’s case, and called the following evidence : John Hall, father of defendant, stated : I was an original member of the Small I arm Association, 0 and made arrangements for my brother-in-law, George Bull, to come out to New Zealand. I became responsible to the Government for the cost of his passage, and that of his family, and entered his name as a member of the association. lat the same time secured for him one town acre and forty acres of suburban land. Bull, however, didn’t come out to the colony on account of ill-health. I informed him that I had secured the sections for him, and when he determined not to come out he sent out a letter authorising me to dispose of the. country section, hut I had mo authority,'and never have had, to deal with the town acre. I remember that in 1855, when coming from Greytown, I overtook Mr. McKenzie at the Taita, and told him I had forty acres.which I was authorised to sell on behalf of George Bull. I asked .-230 for the section, and he offered £2B, which I accepted, and undertook to give him a receipt for the money on my return from Wellington, Iwo days afterwards I met him again at the Xaita, And offered him the receipt for the money, amd the conveyance for the country section. Before taking these documents, he said, “What about the town acre?” I told him I had nothing to do with it—that I considered it forfeited according to the rules of the association. . He said, “ Can I have it if I can get itl told him I had nothing to do with it, and in his brother’s house he again urged me to include the town acre in the receipt. Upon being pressed still-further I did, ■no doubt, write on the receipt, after _it was signed, the words “Town acre 90.” The greater part of the £2B was repaid to a person named Suckling, from whom it was borrowed, for the special purpose of purchasing the land on Bull’s account, and the balance jwae transmitted to Bull in England by postoffice order. In 1862 I received from Bull a power of attorney, authorising me to dispose of the forty acres, and a conveyance was executed, hnt McKenzie did not at that time ask me to execute a -conveyance for the town acre. Subsequently, he asked several times for a conveyance, and I told him he might take posses--sion for anything I cared—that I had no authority to interfere. I never saw the acre, and never received any written notice from McKenzie concerning it. Mr. Travera subjected this witness to a short cross-examination, at the conclusion of which The Court adjourned till next day at ten a.m.

Permanent link to this item
Hononga pūmau ki tēnei tūemi

https://paperspast.natlib.govt.nz/newspapers/NZTIM18750414.2.13

Bibliographic details
Ngā taipitopito pukapuka

New Zealand Times, Volume XXX, Issue 4389, 14 April 1875, Page 2

Word count
Tapeke kupu
3,834

SUPREME COURT. New Zealand Times, Volume XXX, Issue 4389, 14 April 1875, Page 2

SUPREME COURT. New Zealand Times, Volume XXX, Issue 4389, 14 April 1875, Page 2

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