APPEAL COURT.

New Zealand Times, Volume XXX, Issue 4571, 13 November 1875, Page 1 (Supplement)

APPEAL COURT.

Friday, November 12. (Before their Honors the Chief-Justice and Mr. Justice Johnston.) KARAITIANA V. SUTTON. The hearing of this case was proceeded with. Mr. Connolly having concluded his argument commenced the previous evening, Mr. Cornford followed on the same side, and Mr. Cailile and Mr. Travers replied shortly, substantially reiterating their previous arguments. HEW;. HAOKORE (APPELLANT) V. SUTTON (RESPONDENT). This was an appeal from the judgment of Ins Honor the Chief Justice, delivered on the 28th of September, 1875. For appellant, Mr. Travers and Mr. Izard ; for respondent, Mr. Connolly and Mr. Cornford. Mr. Travers opened the case for appellant, and said it was an appeal from a judgment of his Honor the Chief Justice, upon an application for a decree on the part of the plaintiff Kewi, the decree sought being for a rectification of a conveyance made by himself and Paora Torotoro of lands at the Omaranui, in the district of Napier. The circumstances under which he sought the decree, so far as they appeared hy the verdict of a jury on certain issues, showed that land had been included in the conveyance by mistake, though it was not shown that the land had been so included by mutual mistake. So far as the facts appeared upon the pleadings, and as they were affirmed hy the findings of the jury on the issues submitted to them, they were in this position ; land, which for the purposes of the case he would cali Omaranui land, was granted to two natives, Paora Toratoro and Kewi Haokore. Paoro negotiated with the defendant Sutton for advances upon the security of this land, there having been in the first instance a lease made by the natives to a Mr. Braithwaite of all but 163 acres. After this lease Paora negotiated with Mr. Sutton for advances upon the security of the land, and a jury had found that these negotiations extended to the whole of the laud included in the grant. But it was established that Kewi had taken no part in the negotiations for these advances, and it was found by the jury that the mortgage which had been executed was read over and explained to the parties, but that there was no evidence that it was understood by Eewi. A conveyance of the equity of redemption was afterwards *made to Sutton, in pursuance of negotiations for the purchase which has been entered into by Sutton with Toratoro, Bern taking no part in the negotiation, but executing the conveyance. And it had been found by the jury that in regard to the conveyance Kewi was not aware at the time he executed it that it comprised the 163 acres which had not been leased to Braithwaite; and moreover, the jury found that although it was read over and interpreted and explained to both of them, there was no eridenceitwasunderstoodbyKewi, though it wasunderstood by Paora. The effect of the findings of the jury was that the nature and extent of the transaction, both as regarded the mortgage and the conveyance, were understood by Paora, hut that at the time he executed these deeds, Kewi was not aware that they included the 163 acres of land, and that he in fact only became aware of it on the 11th December, 1873, or four years afterwards. It was not imputed that there had been any laches on kiq part in seeking to have this state of things remedied, if the law gave him the right to have any remedy. The plaintiff, together with other natives, were found to be in adverse possession of the 163 acres, having lived upon it for three or four years, ignorant of the existence of the deed in respect to the 163 acres. Under these circumstances, he sought a rectification of the conveyance by the omission from it of the 163 acres, which he alleged were improperly included in it, and it was for the Court to decide whether the plaintiff was entitled to the rectification, which the Court below had answered in the negative. The principle upon which the Court had proceeded in rectification, he (Mr. Travers) was free to admit was upon that of mutual mistake, and where the facts were as clearly proved against the defendant against whom rectification was sought as if they were admitted hy him. The contention in this case was based upon the only authorities he was in a position to bring under the notice of the Court, namely, that the Court should proceed upon the doctrine as affecting vendor and purchaser, and not upon the doctrine of mistake in the ordinary acceptation of the term ; but he did not ask for rectification in the ordinary sense of the term, but to have the deed absolutely cancelled so far as related to the 163 acres, on the ground that there had been no contract whatsoever between Kewi and Sutton in relation to it —that it was improperly included in the conveyance —that it formed no part of the transaction by which he was bound —and therefore that it was inequitable on the part of the defendant to retain the benefit of a conveyance obtained under these circumstances. There was no magic in the words contained in the prayer; and if the prayer was not altogether well conceived as it applied to the facts, yet, if the Court saw a case for relief, it would grant it without regard to the technical character of the relief sought in the prayer. Instead of rectifying it might strike out. Mr. Justice Johnston ; You did not ask for an amendment of the prayer in the Court below. Mr. Travers : No.

Mr. Justice Johnston said the question was whether it would be competent for the Court to grant relief other than that asked for in the Court below without the parties agreeing to the amendment.

Mr. Connolly disputed his friend’s right to go upon the ground he had sketched out. The Judge in the court below had said that the deeds could not be altered, and his friend then, on any appeal from that judgment, came to the Appeal Court to ask for something he had not asked for in the court below. Mr. Justice Johnston remarked that it might be said cancelling a covenant was an alteration in a deed.

Mr. Connolly said if it was the same alteration asked for now that was asked from the Courtjbelow, he had no objection ; but if a destruction of the whole deed were asked for, he should object. Mr. Travers said he wished for a cancellation of the transaction in part, although he admitted that the language used by the Chief Justice in his judgment, and which was supported by the authorities, seemed to say that the transaction could not be set aside in part. The Chief Justice said that could not be controverted. In this case the facts were: First, the grant, say of 1200 acres. A portion of 200 acres was separately described from the rest. At the time of the purchase by Sutton 1000 acres were under lease to Braithwaite, and the other 200 acres were in the occupation of a number of natives, connections and relatives of plaintiff. Sutton purchases from Kewi and Paora under circumstances found in the issues, namely, that Kewi knew nothing about parting with the 200 acres, although he did know about the sale of the 1000, while Paora knew about the sale of the whole, and the purchaser intended to buy the whole. Mr. Travers : No doubt. Kewi had no intention of selling the 200 acres, and did not know it was in the conveyance. As soon as he knew it was in the conveyance, he was guilty of laches in endeavoring to claim to have the deed rectfied and altered. What he submitted was

this, that if the real position of the parties had been in no degree altered, the case would have come within the doctrine of Harris v. Pepperell and Garrard v. Frankel, and the Court would have rectified or set aside the whole transaction. The question was whether the circumstances of the parties had so altered as to take the case out of the principles laid down, and whether matters were not in such a position that the Court would be justified in dealing with the case within the authority of cases of the class mentioned. His Honor the Chief Justice, in giving judgment, said: “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 for the decree. There is no finding of the jury on which I can proceed to make a decree on the supposition that the parties can be placed in their former position, and I canot 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 apparent that the parties could not be restored to their former position. If the plaintiff Kewi asks for a reference and inquiry into the matter, I should be disposed to grant it, though it is clear to me on the evidence that no benefit would accrue to him from it.” But he (Mr, Travers) thought there was a question whether the circumstances of the parties were not such that the parties couldnothave been placed in their former position, assuming the transaction to be set aside. He submitted that it had been shown that the sale of the property which had been in the possession of Braithwaite, had more than repaid Sutton’s outlay, and that these 163 acres represented additional profit of the transaction. What then would be the injury so far as he was concerned if the transaction were set aside quoad the 163 acres ? The Chief Justice said the Court could only be guided by the answers to the issues, and there was nothing about these matters mentioned. At the trial he had asked Mr. Travers if he would have an inquiry into the rights of the question; hut he had declined to have it, and it was questionable whether he could have it now. Hitherto he had argued upon the hare facts found by the jury. He (the Judge) had given his judgment on those facts. Mr. Travers ; No doubt the judgment proceeded upon that. Looking at the matter in that light, I can offer no further observation. Mr. Connolly said he supposed he need not address the Court.

Mr. Justice Johnston : No; Mr. Travers has gracefully thrown up the sponge. The appeal was dismissed, with costs. The Court then adjourned till Monday, at 2 p.m.