COURT OF APPEAL.
Thobsday, November 11, 1875. (Before their Honors the Chief Justice, Mr. Justice Johnston, and Mr. Justice Williams.) KAHAITIAXA TAKAMOANA V. TREDEBICK SUTTON AND OTHERS. Mr. Justice Gillies having previously acted as legal adviser to one of the parties in this case, declined to sit. The opinion of the Court was asked in certain matters connected with a suit commenced in August, 1874, andin which Karaitiana Takamoana was plaintiff, and Frederick Sutton, Paora Torotoro, Ahere te Koare, Nikera Whitingara, Tareha, Urepene Puhara, Erueti Nganui, Samuel Locke, Tareha Moananui, and Sir Donald McLean were defendants. In the year 1866 a Crown grant for 1253 acres of lanil, situate in the province of Hawke's Bay, was issued to Paora Torotoro, Te Waka, Tareha, Karatiana Takamoana, Urupene Puhara, Ahere te Koare, Erueti Nganui, Nikera, Whitinga,Karauria,Tamaiwhakakitea-te-rangi, their heir and assigns for ever. On the 29th December, 1868, Te Waka, for consideration, leased to Henry Parker " the equal undivided ninth part or share of him, the said Waka Kawatina, of and in all that parcel of land " previously mentioned ; and'on the 21st June, 1870, sold to Frederick Sutton the undivided ninth part or share, and all the estate, right, title, and interest of him, the said Waka, of and in the land. Karauria, one of the parties to whom the land had been granted, died on the sth December, 1868, and at a sitting of a Native Land Court held at Napier on the 19th September, 1872, it was ordered that the five children of deceased should succeed to the estate and interest of their father in the land comprised in the grant; and by an order in council, dated the 10th of October, 1873, under the hand of Sir James Fergusson, Governor of the colony, it was ordered that the estate or interest of the said Karauria in the land should be and remain vested in the defendants in the present suit, Samuel Locke and Tareha Moananui, as trustees of the name for the said minors, within the meaning of the Maori Keal Estate Management Act, 1867. Subsequently Paora Torotoro, Urupene, Erueti, Nikera, and Ahere te Koare first mortgaged and then conveyed their ninth, undivided nharew, and Tareha mortgaged and then conveyed his ninth undivided share to Sir Donald McLean. The grantees named in the grant •were aboriginal Mao.is, and up to the date of the grant owned the land therein described according to native custom ; and neither at the
sitting of the Native Land Court at which the right °of the grantees to the land was determined, nor at any time before the issue of the said grant, was it stated to the grantees, nor did the grantee* ever consent that the estate, to be by such grant granted to either of the grantees would, on the death of such grantee, pass to the surviving grantees. Under these circumstances, it was contended on behalf of the defendant, Frederick Sutton, but denied by the plaintiff and the rest of the defendants that, on the death of Karauria, all the estate and interest of deceased in the land comprised in the grant passed by operation of law to the surviving grantees in the grant named. It was further contended on behalf of plaintiff, and of the defendants other than Frederick Sutton and Sir Donald McLean, that all of the mortgages and conveyances executed by any of the native grantees since the coming into operation of the Native Lands Act 1869, other than the deed of conveyance from Te Waka to Sutton, were invalid, on the ground that they were respectively executed by less than a majority in value of the grantees of the said land; this latter fact being for the purposes of the contention admitted, on the understanding that the admission should not prevent defendants from disputing and questioning such value in other stages of the suit. All parties consented that even if the mortgages and conveyances, _or any of them, were" declared invalid, still that the defendants Frederick Sutton and Sir Donald McLean respectively should be entitled to be repaid all sums of money that either of them has actually advanced to the grantees pursuant to such mortgages and conveyances. The questions on which the opinion of the Court was to be taken were:—(l.) Did the estate of Karauria pass by operation of law upon his decease to the surviving grantees in the grant named; and if so, was the same subject or not to any, and what equity on behalf of the children of the said deceased grantee, and in whom is the said share now vested. (2.) What estate, if any, passed to the defendants Frederick Sutton and Sir Donald McLean respectively, under and by virtue of the several deeds of mortgage and conveyance before referred to. Mr. Travers and Mr. Izard appeared on behalf of plaintiff ; Mr. Carlile for defendants Locke and Tareha ; Mr. Hart for Sir Donald McLean ; Messrs. Connolly and Cornford for Sutton ; and Mr. Bell for the remainder of the defendants.
Mr. Travers addressed himself to the second point, and said it would be his contention that most of the conveyances were void. The goodness of the conveyance from Te Waka was admitted, and also that to Sir Donald McLean, but all the other conveyances he impeached on the authority of the sections 12, 13, 14, 15, and 16 of the Native Lands Act. In one of these Bections the word " purchase" occurred, and in su':h a manner that it might be used against him; but he submitted that the word "purchase" there meant actual alienation and divestment of the interest of the party selling to the purchaser ; that a mere mortgage would not satisfy the meaning of the word mortgage ; and that a mortgage made by one grantee would not satisfy the word "purchase" as used in the proviso. He referred at seme length to the provisions of the Native Lands Act, and to show the principle on which such provisions could be construed, cited from 1 C.B. 376 and 6 H.L. Cases 337, contending that the statute rendered the conveyance in each of the disp\ited cases bad. Some little discussion ensued upon the policy of the native land law, in the course of which Mr. Justice Johnston said it had been a clumsy attempt to patch up a great original mistake. Mr. Izard referred to the Native Lands Act of 1565, and sections 32, 34, 45, and other sections of the Act of 18C9, to support his contention that the share of Karauria should not pass to the rest of the grantees, but to the children. The Native Lands Court had found that the children were entitled to succeed in accordance with native custom, and the Court was bound to sustain the decision.
Mr. Carlile also submitted that immediately the father died the children became joint tenants.
As Sir Donald McLean's conveyance had been allowed to be a good one, Mr. Hart had nothing to say.
Mr. Bell said his clients in fact made common cause with plaintiff, therefore he had nothing to urge in addition to what Mr. Travers had argued. Mr. Connolly, for defendant Sutton, contended that Karauria had never possessed power to will away the property which was granted to all nine parties; and that so soon as the breath was out of his body, his share in the land became the property of his cograntees, instead of descending to his children. The survivors became entitled to eighths instead of ninths; and the Native Lands Court had exceeded its jurisdiction in coming to the decision it had done. He submitted that all the conveyances were good ; that under any circumstances the children were not entitled to any share in the property; and that defendant Sutton was entitled to an eighth instead of a ninth in every case where a purchase had been made. The Court then adjourned.
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New Zealand Times, Volume XXX, Issue 4570, 12 November 1875, Page 3
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1,317COURT OF APPEAL. New Zealand Times, Volume XXX, Issue 4570, 12 November 1875, Page 3
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