COURT OF APPEAL.

New Zealand Times, Volume XXX, Issue 4591, 7 December 1875, Page 1 (Supplement)

COURT OF APPEAL.

Wednesday, December 1. (Before their Honors the Chief Justice, Mr. Justice Johnston, and Mr. Justice Williams.) KARAITIANA V. SUTTON AND OTHERS, His Honor the Chief Justice delivered the judgment of the Court and said : In order to answer the questions on which the opinion of the Court is to be taken, it will be necessary to go through shortly the various transactions affecting the land included in the Crown grant to Karaitiana and others. This grant was dated the 29th December, 1868, and was made to Karaitiana, the plaintiff, and eight other natives, their heirs and assigns. Karauria, one of the grantees, has died since the date of the grant, and the remaining seven are defendants in this action. Karauria died on the sth December, 1868. The grant being to the nine in joint tenancy, his share accrued to the eight survivors. Dy deed dated the 29th December, IS6S, and made between Te Waaka Kawatiui, one of the grantees, of the first part, 'William Parker of the second part, and Henry Parker of the third part, reciting that Te Waaka was seized of the laud therein described as joint tenant, and that he had agreed with He my Parker for the sale to him of all his interest in the said lands in consideration of the rent charges therein mentioned, Te Waaka in consideration of certain rent charges conveyed to William Parker and his heirs, inter alio., “all that equal undivided ninth part or share of him, the said Waaka Hawaii.nj, of and in all that parcel of land included in the above grant with the appurtenances, and all the estate, title, and interest of the said Te Waaka in the said parcel of land,” upon trust, to pay the rent charges to Te Waaka during his life, and subject thereto upon trust for Henry Parker in fee. This deed on the face of it transfers a ninth shave, and all the estate and interest of Te Waaka in the land included in the grant. . The general words are sufficient to carp’ all the estate Te Waaka had in the land, and there is nothing in the recitals to narrow the general words. The recitals do not specify any particular share to which Te Waaka was entitled, they state simply that he was seized as joint tenant of certain 'lands with other natives and that he had agreed to convey all his interest in such lands. In the case of Roope v. Lord Kensington, it was held that a manor did not pass under the words all other the lands, tenements, and hereditaments in the county of Middlesex,” and that the intent of such words was simply to sweep in other property tjusdem generis with the property conveyed, and not to include manorial rights of property of a totally different character. The one-eighth of one-ninth accruing to Te Waaka by the death of Karauria was strictly generis with the undivided ninth expressly mentioned, and would pass under the general words. The case of Huntv. Remnant (9 Ex.C3o)iscleariydistinguishable. There the question was whether a right of entry, accrued by forfeiture of a sub-lease, passed by general words in an assignment of the original lease. Such a right of entry, if assignable at all, was only made by 8 and 9 Viet,, c. 106, and the assignment in question was made expressly subject to the sub-lease. It was held that the right of entiy did not pass. The assignment on the face of it treated the sub-lease as subsisting. The instrument thus negatived by implication the existence of any right of entry, and contained no express words to rebut the implication and pass the right. The interest parted with by Te Waaka under the above deed became again vested in him, and was subsequently, on the 21st June, 1870, conveyed by him to the defendant Sutton. As an absolute conveyance of this interest had been made by Te Waaka to Parker before the passing of the Native Lands Act. 1809, the subsequent dealings with it would he unaffected by that Act, and Sutton would be entitled absolutely to the one-eighth share of .Te Waaka acquired'by him under grant, and the accrual of Karauria’s share.

On the 19th July, ISC9, Paora Torotoro, another of the grantees, mortgaged to Rob. Cashmorc all Ms share in the land included in the grant. By deeds dated the 20th J uly and 30th August, 1860, respectively, Urupene Puhara and Erueti Nganul, two other grantees, mortgaged their shares to the defendant Sutton.

On the Ist September, ISG9, Tareha, a grantee, agreed to sell his interest to Sir Donald McLean for £3OO, receiving £SO as a deposit. The quantum of interest intended to be affected by this agreement is shown bv the terms of the deed, afterwards executed in pursuance of it, to be Tareha’s original ninth only.

On the 3rd September, 1569, the Native Lands Act, ISG9. came into operation. At the time, therefore, o£ the coming into operation of that Act the interests of the grantees and persons claiming under them were as follows Assigns of Te AVaaka, one-eighth absolutely. Sir D. McLean, equitable interest in oneninth. Tareha, legal estate in one-ninth, legal and and equitable estate in qne-cighth of one-ninth. Cashmore, legal estate in one-eighth as mortgagee of Paoro Torotoro. Sutton, legal estate in two-eighths as mortgagee of Urupene Puhara and Erueti Nganni. Paora Torotoro, Urnpene Puhara, Erueti Nganni, each equity of redemption of one-eighth share. Ahere to Koare, NikeraAVhitingara, and plaintiff, eachabsolute one-eighth share. The 12th section of the Native Lands Act, ISG9, enacts that in any grant theretofore made under the Native Lands Acts the grantees shall be deemed to have been tenants in common and not joint tenants. The 13th section makes it quite clear that this section was intended to have a retrospective operation in oases where a grantee had died between the date of the grant and the passing of the Act. The proviso in the 12th section prevents the retrospective operation only as to such part of the land included in the grant as had been alienated by absolute conveyance in fee. By the 14th section the estate of the grantees is not to be deemed to be equal or of equal value, unless stated in the grant, but this provision is not to apply to “ shares, estates, or interest already purchased from any such grantees, which for the purposes of such transactions shall be deemed to have been equal.” The intention of these clauses is quite clear, and the intention has been expressed by not Huai)', words. The manifest object of the Legislature was to repair a mistake that had been made, in granting land to natives as joint tenants, and giving each grantee an equal interest, to amend the grants, and to make such amendment relate back to the time of the issue of the grants, so far as could be done without affecting the rights of persons claiming by purchase from the grantees. The Act of ISO 9, therefore, leaves undisturbed the interests of the assigns of Te AVaaka and of Sir I>. McLean. So far as the mortgages to Cashmore and Sutton are concerned, the shares of the mortgagors for the purposes of the transaction are by the Act deemed to have been equal; bnt it is only when the interest of a grantee has been.absolutely alienated in a fee simple that he is considered as having held in joint tenancy under the grant. The mortgagors and Karauria are therefore made tenants in common; and the effect of the retrospective operation of the Act is to divest them and their mortgagees of the share vested in them by accrual on the death of Karauria. The three-eighth shares held by Cashmore and Sutton as mortgagees are, therefore, reduced to three-ninth shares only. A further effect of the Act is to vest in the representatives of Karauria his share, whatever it was, as tenant in common under the grant, less one-eighth of one-ninth of the whole land vested in the assigns of Te AVaaka by accrual. The grantees other than Te AATiaka would, with the representatives of Karauria, then he tenants in common in undefined shares of the land undisposed of, that is, of the whole less oneeighth vested in the assigns of Te AVaaka. and oneninth vested in Sir D. McLean. AA’hether Tareha or not remained interested, would depend on whether Ills share was greater or not less than the one-ninth he sold to Sir D. McLean. The shares of Paoro Torotoro, Urupene Puhara, aud Erueti Nganni, would he equal only so far as necessary for the purposes of the mortgages. The 15th section of the Act of ISG9 enacts that it shall not be lawful for less thanamajodty in value of tire grantees and their successors to make any contract, lease, mortgage, or conveyance of their estate or interest in the land granted, or any part of it. Cundell v. Dawson (4 C. 8., 379) decides that a contract entered into in contravention of a statutory provision, will not support an action. In Philpott v,sr. George’s Hospital (li H.L., 349), the Lord Chancellor says, that prohibitory statutes prevent you from doing something which formerly it was lawful for you to do, and whenever you find anything done that is substantially that which is prohibited, it is open to the Court to say that it is void, because by reason of the true construction of the statute it is the thing, or one of the tilings actually proiiibited. There is nothing in the Act of 1309 from which any absurdity would result in treating these transactions as absolutely void, or from which it can he gathered that it was the intention of the Legislature to treat them as voidable only under particular circumstances. The intention of the Legislature, as disclosed by the Act, was apparently to prohibit these transactions on the ground of public policy. The case admits that none of the conveyances and mortgages made by the grantees since the Act of 18G1) were made by a majority in value of the grantees. All these, therefore, would he invalidated except the conveyance from Tareha to McLean, Tareha, at the time of the passing of the Act, being a mere trustee of the one-ninth contracted to be sold. The transfers of mortgage from Cashmore to Kinross and from Kinross to Sutton, though made since the passing of the Act. as they are not made by grantees, are not affected by its operation. The answers to the questions proposed would therefore be 1. The interest of Karauria on his decease passed by the operation of law to the surviving grantees in the grant named; hut by the operation of the Native Lands Act, ISG9, the interests so vested in the surviving grantees were divested except as to one-eighth of one-ninth of the whole laud, Included in the grant, which remained vested in the assigns of Te AVaaka Kawatini. This one-eighth of one-ninth was not subject to any equity on behalf of the children of Karauria. The remainder of the estate of Karauria is now vested in the defendants, Samuel Locke and Tareha Moauanui, as trustees for the children of Karauria, mentioned in the tenth paragraph of the Sir Donald McLean took an estate in fee simple in one-ninth of the whole of the land included in the grant, by virtue of the agreement of the Ist September, i’sbo, made with Tareha Moananni, and the conveyance of the 25 th May, 1572, made in pursuance of this agreement. The defendant Sutton took an estate in fee simple in one-eighth of the land under the conveyance of the 21st .Tune, 1870. from Te AA r aaka Kawatina to him. Under the mortgage of the 19th July, ISG9, from Paovo Torotoro to ilohert Cashmore, and the subsequent deeds of assignment from Cashmore and Kinross, and by operation of the Native Lands Act, 1809, Sntton took the legal estate in one-ninth, by way of mortgage to secure the sums mentioned in this deed. Under each of the deeds of mortgage, of the 2fith July and the 30th August, 1809, made respectively between Urupene Puhara and Erueti Nganni anil Frederick Sutton, aud by operation of the Native Lands Act, ISG9, Sntton took the legal estate in one-ninth by way of mortgage to secure the sums mentioned in those deeds respectively. Under the other deeds of mortgage and conveyance mentioned in the case, the defendant Sutton took no estate or interest. These deeds were executed after the passing of the Native Lands Act, isfifi, arc therefore void.

WILLIA2JSON V. PEARCE. The judgment of the Court was delivered by the Chief Justice as follows: This was an action for the rectification of a lease by inserting in the deed an exception of certain roads which the plaintiff alleges it was agreed between his attorney and the defendant should be excepted. The plaintiff, in deference to the opinion ef the judge at the trial, elected to be nonsuited, leave being reserved to him to move to set aside the nonsuit, and for a new trial A rule nisi was granted, pursuant to leave, and on cause being shown in the court below, the rule was discharged. Against this judgment the plaintin appealed to tills Court. , The Court is unanimously of opinion that the appeal should be dismissed. a Without going so far as to say that there was an entire absence of evidence tending to prove the proposition that according to the terms of the original agreement the roads were to be excepted, we are of opinion that if we assume the whole of the evidence given on behalf of the plaintiff to be true, without considering the contradiction of it by the defendant’s evidence there would not be a sufliciently clear and satisfactory case established to enable the Court, within the principles laid down and the practice pursued in Courts of Equity in England, to entitle the plaintiff to the rectification which he seeks, and for that reason we think that the nonsuit should not be disturbed, and the appeal should be dismissed with costs. Appeal dismissed with costs. YENNELL V. BRANDON. The judgment of the Court in this case, which had been heard before Mr. Justice Johnston, 3lr. Justice Gillies, and Mr. Justice Williams, was delivered by Mr. Justice Johnston, who said : The important facts of this case appear to be that one Bowler mortgaged to one Rhodes certain freehold and leasehold lands, and subsequently conveyed the freehold lands only to the plaintiffs in trust for his wife, &c., by way of marriage settlement, but this settlement remained unregistered until after registra tion of certain memorials of Judgments after memorials. Thereafter Bowler became bankrupt, and in August, 1867, Rhodes sold both freehold and leasehold in one lot under his mortgage, which produced £199 7s. 9d. over his mortgage debt. This surplus Rhodes paid to one Brown, to be paid by him to the person or persons entitled by law to receive the-same, he having notice of the settlement. In the meantime, and before payment to Brown, two creditors of Bowler registered memorials of judgments against the freehold lands settled as before-mentioned. The plaintiffs, and the defendant as solicitor for the judgment creditors, respectively claimed the amount in Brown’s hands, and Brown in January, ISCS, paid the money to the defendant, being such solicitor, he having knowledge of the settlement, and the defendant paid over or accounted to his clients for the monies so received by him. The present action, commenced in December, 1871, is under rules an action for specific relief, not an action for money, the relief sought being a declaration that defendant is trustee for the of the money received by him, although the claim is added that the defendant be ordered to pay. The trust with which it is sought to clothe the defendant is not in respect of any specific identifiable property, but of a sum of money arising from a specific source, and of an ascertained amount. Its being an ascertained amount is not essential to the cause of action, as it might have been equally well alleged as an unknown amount, and if the right were established, inquiries as to amount would be subsequently directed. From the record it may be gathered that the money was paid by Brown to defendant, and claimed and received by him on behalf of his clients, under the idea that the registration of the memorials of judgment prior to the registration of the settlement gave the judgment creditors a priority over the trustees of the settlement. That this idea was an erroneous one is clear (it was virtually admitted on the argument that it could not be supported), and, therefore, the money was paid to and received by the defendant under a mistake of law. We may, therefore, eliminate from the facts before stated, all those relating to the non-registration of the settlement, and to the registration of the memorials of judgment. For the purposes of this action it is necessary to determine the respective liabilities of Rhodes and Brown. The defendant appears to have claimed and received the money from Brown as agent for and in right of his clients. He accepted no trust in respect of the money paid to him, even if Brown did so. Brown paid it to him upon no trust, but as an absolute payment on behalf of defendant’s clients. How, then, can he be said to be a trustee on behalf of the plaintiffs? It was contended that although he received it under a claim of right as an absolute payment to his clients, yet because he had notice of the settlement and knowledge of the origin of the fund, and of the claim of the plaintiffs to it, he therefore, by his wrongful receipt of the amount, became trustee for them. But surely something more is requisite to constitute the relation of trustee and cestui que trust. (Vide Man v. Pearson, 23 Bear., 199.) A person wrongfully receiving monies to which he knows there is a counter claim does not necessarily become a trustee for the counter claimant on the latter establishing his right. He may be liable or not to refund to -the person paying him the payment made to him, but he cannot properly be called a trustee of that sum of money. Having received the amount merely as an agent, his receipt and possession was that of his principals. He was bound to pay over to them, and he did in effect do so. Notice to him of a counter claim could not convert him into an implied trustee. (Nicholson v. Knowles and others, 5 Inad., 47.) Whatever Rhodes’, Brown’s, or the defendant’s principal’s responsibilities may be, we consider that defendant is not liable as a trustee, and that therefore the judgment of the Court must be for the defendant.