SUPREME COURT.—IN BANCO.

New Zealand Times, Volume XXX, Issue 4536, 4 October 1875, Page 3

SUPREME COURT.—IN BANCO.

Tuesday, September 8. (Before his Honor the Chief Justice.)

The Court sat at 11 a.m. PAORA TOROTOEO AND ANOTHER V. SUTTON.

His Honor delivered judgment in this case, and said : This was a motion on behalf of one of the plaintiffs, Rewi Haokore, for a decree in a suit brought by himself and Paora Torotoro against Frederick Sutton. Mr. Travers and Mr. Izard appeared for the plaintiff Rewi, and Mr. Wilson and Mr. Crawford for the defendant. The action was commenced on August 8, 1874. The declaration stated that, by Crown grant dated July 14, 18G6, a parcel of land of 3573 acres, known as Omarunui, was granted to the plaintiffs in fee simple. That in July, 1860, the plaintiffs leased a part of the said land (3410 acres) to James Butcher Brathwaite for the term of twenty-one years, at an annual rent of £3OO That on October 5, ISGS, the plaintiffs mortgaged to the defendant the whole of the grant, to secure repayment of a loan of £SOO and future advances and interest. That on March IC, 1809, the plaintiffs conveyed to the defendant the whole of the granted lands, in consideration of a debt of £I2OO due by plaintiffs to defendant, and of £I3OO paid to the plaintiffs by defendant. That at the time of the treaty for the mortgage it was verbally agreed that only the land leased to Brathwaite should be included in the mortgage. That the mo tgage deed was prepared under the instructions of the defendant alone, and that the plaintiffs had no independent legal advice in the matter. That neither of the plaintiffs knew that the mortgage deed comprised the whole of the land in the grant. That the plaintiffs executed the mortgage deed under the mistake that only the leased land was affected thereby. That the execution of the mortgage deed was obtained fraudulently by the defendant, in that he knew that the plaintiffs did not intend to include the part of the land not leased. That the conveyance to the defendant was also prepared under the defendant’s instructions, and the plaintiffs had no independent legal advice in the matter, and that neither of them knew that the conveyance comprised the whole of the land in the grant, and that they executed it believing and on the understanding that the land conveyed did not include the portion not leased. That the plaintiffs never agreed to mortgage or sell the land not leased, and that they executed the deeds under a mistake as to the land comprised therein. That the execution of the conveyance was obtained by the fraud of the defendant, in that he knew that it contained land not agreed on, or intended to be conveyed. That the plaintiffs have been in continuous occupation of the land not leased, and no claim for possession was made till May. 1874, and that until that the plaintiffs were not aware that the deeds of mortgage and conveyance included the leased land. The declaration then prays a declaration that the deeds of mortgage and conveyance are a mortgage and conveyance of only the lands leased, and that the deeds may be altered and reformed. The defendant by his plea, denied the allegations of mistake and fraud, and the allegations as to the manner in which the deeds were prepared and executed, and the occupation of the lands not leased. The plaintiffs replied by joining issue. Subsequently ; in fact, immediately before the trial, the defendant pleaded an after plea, alleging that on January 21, 1874, he applied under the Land Transfer Act for a certificate of title for the unleased portion of he land conveyed to him by the plaintiffs, and that the plaintiffs on July 10. 1874, entered a caveat, but allowed three months to expire without giving notice to the registrar of having commenced proceedings to establish their title, and did not obtain an injunction: and that on December 15, 1874, the registrar gave defendant a certificate of title for the land not leased, and that that certificate is in full f °To'this after plea the defendant demurred and replied. The grounds of the demurrer were (1.) That the grant of the certificate having been ’made pendente litc, does not affect the plaintiff. . . . (2.) That the plea does not allege that this suit is not within the exception in section 129 of the Land Transfer Act. , (3.) That the plea does not allege that the plaintiffs were not deprived of land by fraud as against the person registered as proprietor through fraud. , . In the replication to the after plea the plaintiffs first deny the allegations in the plea, and also reply that the certificate of title was one issued on the first bringing of the land under the Act, and that at the time the plaintiffs were, and still are, in adverse possession, and are rightfully entitled. By a third replication they repeat the allegations in the declaration, and say that they were deprived of the land by fraud, and that the defendant procured himself to be registered as proprietor by fraud, knowing that he was not rightfully entitled thereto. The defendant joined in demurrer, and denied the allegation in the replication to the after plea. Upon these pleadings issues were formed. The jury found in effect that the plaintiffs had been and were in occupation of the land not leased; —that the plaintiff Paora Torotoro had agreed to mortgage and also to convey the whole of the land granted, but that the plaintiff Rewi had not so agreed ; that at the time of the execution of the mortgage, and of the convnyance, Paora Torotoro knew that the deeds affected the whole of the land, but Rewi did not; that the deeds were prepared under the instructions of the defendant alone, and the plaintiffs had no independent legal advice in the matter. That the deeds were read over, interpreted and explained to both of the plaintiffs before execution, but the jury said that there was no evidence that they were understood by Rewi, The jury negatived the Issue of fraud, that is that defendant knew that the plaintiffs did not intend to include the land not leased.

The jury found that the defendant’s first claim for possession was made December 11, 1873, and that Rewi did not know till that date that the deeds included the land not leased, but that the other plaintiff knew they did at the time of the execution by him. The jury, as to the issues on the after plea, found that the defendant did not know at the time of making his application to bring the land under the Land Transfer Act that he was not rightfully entitled thereto: that the plaintiffs were in adverse possession, but that they were not entitled to the land as they had signed the deeds. It is contended, on behalf of the plaintiff Rewi, that he is entitled to a decree for the rectification of the deeds of mortgage and conveyance, by altering them so that the interest of Rewi in that portion of the land in the grant not leased to Braifchvvaito should not bo affected thereby. No motion (or a decree is made on behalf of the other plaintiff. Paora Torotoro. The jury have found that the plaintiff Rewi and the defendant did not mutually agree that the whole of the land in the grant should be included in the deeds, and that Rewi did not know that the deeds affected the whole of the land in the grant; but the jury have also found that the defendant did not know that Rewi did not intend to include the whole. The case, therefore. as to Rewi is not one of mutual mistake, for it must, I think, be assumed that the deeds are in accordance with the intention and understanding of the defendant, though not in accordance with the intention and understanding of the plaintiff Rewi. But on behalf of Rewi it is contended that the Court may rectify the conveyance though the mistake is not mutual but is the mistake of the vendor only ; and it was argued that the case of Harris v. Peppcrell, L.R. C, Eq. 1, establishes this. I am not aware of any authority other than Harris v. Peppcrell, which can be cited in support of the plaintiff’s contention, and

that case (Harris v. Pepperell), properly understood, does not, I think, decide that a rectification can be decreed where the mistake is not mutual. The decree which the Master of the Rolls declared that he was prepared to make was, that the deed should be sot aside or rectified at the option of the defendant. The judgment of the Master of the Rolls, if properly reported, may, and I think must, be understood as deciding that the deed should be set aside, but that if the defendant was willing to have the deed rectified, he would not order it to be set aside. So understood, the judgment is in accordance with the authorities. The s.lit was at the instance of the vendor of land against the vendee, seeking for a rectification of the deed on the ground that a portion of the land conveyed was not intended to be conveyed. The facts as reported would certainly lead one to the conclusion that, as a fact, the mistake was mutual, and that the defendant either knew or ought to have known that the parcel of land in question was not intended to be conveyed. Some of the observations of the Master of the Rolls would seem to show that though the defendant gave evidc'ice that he understood that he was to have the land in dispute, and that there was therefore uo mistake on his part, there was, in the opinion of the Judge, a mutual mistake, and that the defendant and plaintiff had not agreed for the whole, but had agreed for the conveyance of that portion only which the plaintiff alleged was the subject of the agreement. However, other observations and the reasoning of the Judge seem to show that he did deal with the case as one of mistakeon the part of the vendor only. If the Master of the Rolls found as a fact that the plaintiff justifiably thought that he was selling a portion of the land, while the defendant justifiably thought that he was buying the whole ; in fact, that the vendor and vendee never assented to the same thing, then it would follow that there was no contract at all, and if there was no contract, clearly it would be no case for rectification. But though not a case for rectification, it would be a case for the cancellation or setting aside of the conveyance, if the vendor had been guilty of no laches and the position of the parties had not with reference to the land become so altered that they could be restored to the same position as before the conveyance. For though perhaps where the vendee thinks he is buying what the vendor does not think ho is selling, the Court may not before conveyance actively interfere by setting aside a void contract, yet when there has been a conveyance then there arises a sufficient reason for the active interference of the Court, for otherwise the vendee would be able to set up the conveyance against the vendor, which would be inequitable, and would be damaging to the vendor. I say perhaps, for there are strong authorities in favor of the active interference of the Court even before conveyance. In Calverley v. Williams 1 Yes. (Juri.) 211, Lord Chancellor Thurlow refused specific performance, because neither party thought the land in dispute was to be conveyed, but in the course of his judgment said : “ Where one thinks he is buying what the vendor does not think ho is selling, it is ground to set aside the contract but in Alvanley v. Kiimaird 2 MacN. and Gordon 1, Lord Cottenham says, where the vendor includes more than intended by mistake, the Court will not decree specific peformance of the whole. If the vendee refuses to take a part, the Court will not interfere, it will not rescind the contract. And in Lord St. Leonard's Vendors and Purchasers, (p. 314). he says : “ If a purchaser of an estate thinks he has purchased bond fide a part which the vendor thinks he has not sold, that is a ground to set aside the contract, or at least not to execute it, that neither party may be damaged.” But the authorities cited are all suits for specific performance of contracts, and not for rectification or setting aside contracts. And at page 215 he says: “ Where there is mistake between two parties as to what was sold, the Court will not interfere in favor of cither party.” See also Kerr on Fraud, p, 3G2, and per Lord Justico James in Torrance v. Bolton, L.R., S Ch. Ap. 118. See also Powell v. Smith, L.R., 14 Eq., p. 90. However, it is not material to inquire whether the Court will set set aside the contract where one party does not thinkhe is selling what the other thinks he is buying ; but there seems good ground for the active interference of the Court where in such a case the vendor has by mistake the conveyance, and Harris v. Pepperell is an authority that in such a case the Court will set aside such a conveyance if the parties can be replaced in their former position. That is a necessary condition, and was so treated in Harris v. Pepperell. See .also Powell v. Smith, supra p. 91. In the case now ’before this Court there is no finding which would enable it to make a decree on the basis of placing the parties in their former position ; indeed, the plaintiff does not ask that the deeds should be set aside. He asks that they may be rectified so as to conform to what he intended, though not in conformity with what the jury has found to bo the intention of the defendant : and Harris v. Pepperell is cited as a case in which that was done. In my opinion the Master of the Rolls did not so decide. At any rate the decision may be supported as a decree for setting aside, but not for rectification, unless it bo on the supposition that there was a common error. The case cited has been the subject of observations in several text books of repute, and the general opinion seems to be that the case decides only that where there is mistake on one side only the Court will set aside the conveyance, but that it cannot be taken as an authority for the proposition that the Court will in such a case rectify the deed against the will of the other party ; but that if the case does so decide it cannot be upheld. In Kerr on Fraud and Mistake, p. 851, he says: “In Harris v. Pepperell Lord Romilly, M.R., said that the rule that the Court will not rectify an instrument on the ground ofjmistake except the mistake be mutual is liable to an exception in a case between vendor and purchaser. But the distinction is not supported by the authorities, and does not seem sound. Garrard v. Frankel and Harris v. Pepperell were, there is no reason to doubt, correctly determined, but the principle upon which they are to be upheld is that the Court in these cases merely abstained from sotting the agreement aside on the consent of the defendant to submit to the variation alleged by the plaintiff. In cases of rectification, properly so called, the Court does not put it to the defendant to submit to the variation alleged by the plaintiff, but makes the instrument conformable to the intent of the parties without any such offer or submission.’ 1 In Dart’s Vendor*-and PurcbauAra.. d. CS2. ha oUcorvos on mis case as follows:—” In a recent case where the plan on the conveyance comprised more land than the vendor intended to convey, the Court, in a suit by the vendor to rectify the deed, gave the purchaser the option of having the contract annulled, or if taking the conveyance in the form which the vendor intended, and this decision was rested on the ground that where the parties can bo placed in the same position as if no contract had been executed, the Court will interfere, provided the party aggrieved comes speedily for redress ; but after conveyance, the parties can seldom be restored to their original position, and it would seem the sounder doctrine that, in such a case, no relief should bo granted unless both parties have participated in the error. In the case just cited the purchaser appears to have been not altogether free from blame, and it cannot be regarded as an authority for the proposition that the Court will, to the prejudice of an innocent purchaser, rectify a conveyance merely on the ground of the vendor’s mistake.” This author therefore questions the soundness of the decision, and seems to be of opinion that after conveyance there can be no relief unless the error is common. See also p. 681 in note (w). In Chute on Equity in relation to the, ,Common Law, at page 135, he observes of the decision in Harris v. Pepperell that “the Master of the Rolls decreed in effect that the obligation should not be interfered with by the erroneous deed, and that the indenture which stood in the way of the. real agreement or obligation should bo rescinded.” It hardly seems to require authority to show that the Court will not rectify an instrument so as to make it conform to the understanding and intention of one of the parties only, for to do so would be to make the contract for the parties. However, as the observations in the judgment of the Master of the Rolls seem to show that he conceived that the Court would, in such a case, rectify the instrument as between vendor and purchaser, and that judgment was relied upon in the argument, I have thought it better to review some of the many authorities on the subject, wi;h a view to show that they do not support the observations of the Master of the Rolls. And first it may be promised that it is not necessary here to consider those cases which have turned upon the question of evidence. Courts of Equity in England require clear and satisfactory evidence of mistake, and attach considerable weight to the evidence of the defendant denying the mistake, ami many of the judgments in cases of mistake are addressed to the question of the evidence of the mistake rather than to the effect of mistake. The defendant may depose that there is no mistake on his part, and yet the Court may on the whole evidence come to a different conclusion. In New Zealand the jury are the judges of the fact, and in the case now before the Court the jury find that the mistake is on the side of the plaintiff Rewi only. In the case of Garrard v. Frankel, 30 Boavan, 445, the Master of the Rolls thought that the defendant had verbally agreed for a higher rent than was by mistake named in the written agreement or the lease ; and but for an inconsistency in the written agreement he would have decreed the rectification as in case of a common mistake, but as the draft lease contained the error, and the agreement though in its body stating correctly the higher rent, yet incorporated the draft, and was therefore in itself inconsistent, he made the same decree as in Harris v. Pepperell, namely, gave an option to the defendant of having the deed set aside, or if ho retained the lease that it should be rectified. As there was a written agreement, and patent ambiguity existed parol evidence could not bo admitted on behalf of the plaintiff to explain and rectify it and force the lease on the defendant, though such evidence was admissible to sot aside the lease. The Master of the Rolls, in the judgment in that case, says: “The next question is also one of fact; it is whether the defendant know that the reservation of £l3O was a mistake. It was certainly not a mistake committed by him. and therefore it is argued that there must bo an end of the case, for that, to enable the Court to rectify a mistake, the mistake must bo mutual; but though as a general rule that is correct, it does not apply to every case. The Court will interfere in cases of mistake where one party to the transaction being at the time cognizant of the fact of the error, seeks to take advantage of it.” And after considering the evidence he concludes that the defendant, at the time she executed the lease, was cognizant of the mistake which had been committed by the plaintiff. Moreover he proceeded on the assumption that the parties could be placed in their former position ; for though the defendant had mortgaged the lease, the terms on which the lease was to bo set aside wore that the mortgage security should not bo affected, and the plaintiff bo entitled to repayment from the defendant. The authority of this case is questioned by Mr. Dart, and is supported by Mr. Kerr only on the ground that in effect the decree was to set aside the lease unless the defendant consented to retain it, and if he retained it, ho must retain it with rectification. In Sugden’s Vendors and Purchasers, p. 320, ho says the Court will relievo the vendor where more has passed than was contracted for. But the present question is, whether it will relievo where more has passed than was intended by one side only. The cases ho relies upon are not authorities in favor of the plaintiff in the present case. They are the three following cases:— In Clifford v. Laughton, Tot. p. 23, more land passed than was intended, but relief was refused as against a purchaser for value without notice. It does not appear from the short note of the case whether the mistake was mutual or not. In Tyler v. Berveraham, Finch 80, 2 Ch., Ca. 199, land was included in general words which had not been intended to bo convoyed; it was not specified in

the particulars, and the mistake was admitted by the defendant. That was clearly a case of mutual mistake, and relief was granted as against the vendee, but not as against the mortgagee, he being a purchaser without notice.

In Gibson v. Smith, Barnardiston C.C. 491, the case was really one of mutual error; for the question was whether the conveyance did not convoy more than was described in the written agreement. Carpmael v. Powis, JO Beavan, 30, was a suit to set aside or rectifyan annuitydeed granted by the plaintiff, and was therefore a case of vendor and purchaser. It was contended by the defendant that, because it was not a case of mutual mistake, the Court would not interfere. The mistake was a miscalculation by the plaintiff on information supplied by the defendant, and the defence was that the defendant would net have accepted an annuity of less amount than that in the deed. There was no suggestion of fraud. The Master of the Rolls, Lord Langdale, in his judgment, said that “ a decree to rectify the annuity deed could not be made, and the only question was whether the grant of the annuity was to be declared void.” He decided that there was such a mistake, that the plaintiff ought not to be held to the agreement, and that the deed must be cancelled. The case is oue, therefore, of mistake on one side, and therefore not one for rectification, but cancellation.

Murray v. Parker (19 Beav. 305), was a case where a lease was ordered to be reformed, and there it was held by Lord Langdale that to justify the Court in reforming an executed deed it must appear that there has been a mistake common to both contracting parties, and that the agreement had been carried into effect by the deed in a manner contrary to the intention of both. That was not a case of settlement, but in effect of vendor and purchaser. In his judgment in Wright v. Goff (22 Beav. 207), the Master of the Rolls (Romilly) says : “ The Court looks with extreme jealousy upon an application to reform a deed, and the onus lies upon the plaintiff to show that the deed was executed under a mistake, ’ and he held that “as the deed was executed under a mistake, not only of the person executing it, but of all the parties concerned, it must be reformed.” It is true that this case was not one of vendor and purchaser, and therefore does not come within the exception from the general rule, which, according to Lord Romilly, in Harris v. Pepperell, exists. But the grounds of the judgment are common mistake, aud not the alteration in the position of the parties. In Leuty v. Uillas, 2 De. G. and J. 110, where the plaintiff and defendant had purchased separate lots of land, &c., at an auction, and a portion, which the plaintiff had purchased, was by mistake conveyed to the defendant the Master of the Rolls refused relief either by rectification rescission or otherwise, but on appeal relief was granted to the plaintiff, on the ground that, though the Court was satisfied that the defendant believed he had purchased the portion in dispute, yet ho had not good reason for so believing, and that he ought to have known that it did not form part of his purchase, and he was ordered to convey it to the plaintiff. There was in that case therefore a mutual error.

In Fowler v. Fowler, 4 Do. G. and J. 250-205, it was hold that for the purpose of reforming an instrument clear and unambiguous evidence must be produced, not merely showing a mistake, but showing the deed in its proposed state to be in conformity with the intention of all the parties at the very time of its execution. The latter part of this ruling is a distinct authority that in such a case as that now before the Court there can be no rectification in the manner proposed by the plaintiff, for such rectification would not make the deed in conformity with the intention of the defendant. In the Metropolitan Counties, &c.. Society v. Brown, 20 Beavan, p. 454, one question was whether the schedule to a mortgage deed of machinery could be rectified by reason of some portion of the machinery, which the plaintiff intended to have had in the deed, having been omitted by mistake, but the Master of the Rolls (Romilly) in his judgment says : “Then the question arises as to that part (of the machinery) which was put down between the date of the two mortgage deeds, whether this Court can reform tire second by inserting the metal flooring, because, as I understand, the schedule of the second deed does not include the metal flooring. I cannot, however, alter the deed upon the valuation made when the plaintiffs took their mortgage. The parties who advanced the money no doubt intended to include in the deed everything which was included in the valuation. The metal flooring was without doubt there; but I cannot therefore include it in the deed in the absence of proof that it was omitted by a common mistake of both parties.” There is nothing to show that Mr. Brown (the defendant) made any mistake on the subject. In that case the defendants had assigned their estate for the benefit of their creditors, and therefore it was not a case in which rescission would be asked. The case, however, is In effect one of vendor and purchaser. and yet rectification was refused.

In Elwes v. Elwes, 2 Gif., 545, it is said by Sir John Stuart. V.C., that the principle on which the Court reforms a settlement is to make it conform to what was the real agreement. Sells v. Sells, 29 L.J., ch. 600, Vice-Chancellor Kindersley held that the Court could not correct an instrument made upon the marriage of two parties, except upon the clear mistake of both parties. He refers to Vice-Chancellor Wood’s judgment in Rooke v. Lord Kensington, 2 Kay and J. 753-764.

In Bentley v. Mackay, 31 L.J., ch. 700, the Master of the Rolls in the course of his judgment says : “When this Court rectifies a deed under the equity of mistake, it must be a common mistake, a mistake of all the parties to the deed ; you must show that all made the mistake, and then when you come to reform It that mistake must be clearly proved.” Ih the Earl of Bradford v. the Earl of Romney, 81 L. J.,\di. 490, the Master of the Rolls says: “Itis a rule of equity in such cases that to reform a deed it is necessary to show that the mistake was an error common to both parties to the contract.” And, “ Above all things, in cases of re-forming a deed, it is essential that the extent of the proposed alteration should be clearly defined and ascertained by evidence contemporaneous with or anterior to the deed.” In Mortimer v. Shortall, 2 Dr. and War, 372, the principles upon which Courts of Equity proceed in reforming deeds and instruments, are discussed, and it is laid down that in such cases the mistake must be mutual, ana xnai » imstiiKe on one ground for rescinding, but not for correcting an instrument. That case was one of a lease in which more land had been demised than was intended or agreed. In a late case on this subject, Bloomer v. Spittle, L.R. 13 Eq. p. 431, the Master of the Rolls thought there was a common mistake. In that case the purchaser asked for rectification because of an omission from the conveyance by mistake, but though the Judge (Romilly) was satisfied there was a common mistake, yet as a period of years had elapsed, and the defendant denied the mistake, he refused to rectify the deed against the will of the defendant, and, as he said, followed the case of Garrard

v. Frankel, and gave the defendant the option of having the deed rectified in the manner asked by the plaintiff, otherwise the transaction to be set aside. In that case the position of the parties had not been so altered that complete relief could not be given. Powell v. Smith, cited at the argument, was for specific performance, and the mistake insisted upon by the defendant was one of law not of fact. Accepting, however, the authority of Harris v. Pepperell, that though the mistake be not common, the instrument might be set aside if the parties can be placed in their former position ; yet, as already pointed out, the plaintiff has not laid that foundation for the decree. There is no finding of the jury on which I can proceed to make a decree on the suppotion that the parties can be placed in their former position, and I cannot look beyond the issues. I may remark, however, that it was indisputably proved at the trial, though there was no issue to meet the fact, that the defendant had some time since sold to the lessee the fee simple of the whole of the land included in the lease, and no doubt the purchaser had no notice of the alleged mistake. If that fact had been found by the jury, then it would have been made l, apparent that the parties could not be restored to their former position. If the plaintiff ewi asks for a reference and inquiry as to the matter, I should be disposed to grant it, though it is cleat to me on the evidence that no benefit would accrue to him from it. The transaction cannot be set aside in part. If set aside, it would have to be sot aside altogether. As the plaintiff Rewi states he will not ask for such inquiry, I must therefore refuse the relief to the plaintiff Rewi, and dismiss the bill, both as to himself and Ills co-plaintiff. As the declaration made a case of fraud, and that was not established, I must give the defendant his costs of so much of the proceedings ns have been caused by that charge, and order that these costs shall be paid by Paora Torotoro and Rewi ; and I also order that the plaintiff Paora Torotoro do pay the defendant his costs of the cause generally. PAORA TOROTORO ANT> ANOTHER V. SUTTON (DEMURRER). As to the demurrer to the defendant’s after plea, I think it must be sustained. Ido not think that the effect of a certificate of title under the Laud Transfer Act is as between immediate parties to a contract to alter their rights against and liabilities to each other. If the facts in the plaintiffs’ declaration are admitted, the plaintiff would at any rate have a right to have the deed cancelled if the position of the parties had not been altered—and in equity in the meantime the defendant would hold the legal estate as quasi-trustee for the plaintiffs. Now, there is nothing in the Land Transfer Act which, as between the trustee and cestui que trust, pits ai\end to the tmst. The trust is not noticed on the register; but the cestui que trust may always in this Court enforce his rights against the trustee though the trustee may have acquired a certificate of title. I think the demurrer must bo allowed with costs. This does not affect the judgment given by me on the facts.