COURT OF APPEAL.

New Zealand Times, Volume XXXIII, Issue 5353, 24 May 1878, Page 5

COURT OF APPEAL.

Wednesday, May 22. (Before them Honors the Chief Justice, Mr. Justice Johnston, Mr. Justice Richmond, Mr. Justice Gillies, and Mr. Justice Williams.) ’ ■ PATERIKI TE RIRIIIEKE V. J. D. ORMOND. Ah appeal from a judgment of the Chief Justice, delivered herein on the 27th February, in which the demurrer of the defendant was overruled with costa. . _ Mr. Oonolly for the appellant; Mr. Izard for the respondent. ’ . The declaration stated that the plaintiff,’m common with other aboriginal natives, was prior to the year 1807 entitled according to native custom to an interest in a certain block of land'in the province of Hawke’s Bay, known as Hevetaung.i. The title was prbved before' tho Native Lands Court to-be iu the above persons. Only feu could be; put into the grant, but there were 1 others interested ; also. It was agreed between the plaintiff and them that'the name of Apera Pabora should be inserted in the grant, and that he should hold the interest as trustee for all the natives of the hapu, including the plaintiff. This was done, and a Crown Grant was issued accordingly in favor of: Henare 'Tomoaua, Arihi te Naim, Manaena Tini, Matiaha, Paramena Oueone, Apera Pabora, Kavaitiana Takamoa.ua, -To Waka Kawatini, No a Hake, and Tareha Moananui, 1 of : the Ahuriri District, in the province :of 1 Hawke’s Bay, aboriginal natives of New Zealand, their’heirs and as : signs. lu. April, 1868, Apera’ Pabora declared in writing that he held the laud'not'solely in id his own right, but as trustee for and On behalf of; hapu of N gati Papatua Maro, : that is, pf Patefiki to Ririheke, and of Perolmu, also ; aboriginal natives. 1 ' 11 The. declaration ' goes _oq ■ to state that the' defendant; Miv John Davies"’ Ormond, is'iu ffaudbf tho plaiutiSf id .possessiou of the laud, which lie claims to hold by virtue of a conveyance dated the 22nd day of March, 1870, alleged to he raide by Apera Pahoiato him, and plaintiff has been and is' rniablo' to obtaiii any benefit from the land ; the alleged-conveyance to Mr. Ormond (if any) was made vyith the full notice to the said Apera-Pabora'and the defendant of the premises.; The plaintiff ' therefore ' prays ' that' he’ may be declared entitled .to his share in the land. ’

i To this declaration the plaintiff demurred in the following terms / ! That the plaintiff’s declaration seeks to ! avoid the judgment of the Native. Lands Court as to the ownership of the block of land in question, and the Crown grant issued'thereupon, which said judgment audiCrown -grant are respectively final and conclusive as to- the ownership of the said land. -That the alleged agreement did not preclude Apera Pahora from selling and conveying the estate vested in him by’ the said Crown ■ grant. That ‘ the alleged declaration of trust did hot vest in the plaintiff any estatd ih.lfvwdr in equity in the said block of land, oi'any part thereof; and did not preclude the said Apera Pahora from selling and conveying the estate vested in him'by the said Crown grant. That the plaintiff’s declaration does not specifically show in what manner the alleged conveyance was a‘fraud upon "the plaintiff. 1 That the plaintiff’s declaration-does not specifically show any fraud on the part of the defendant as against the plaintiff. That the plaintiff’s declaration does not allege or show any subsisting estate,’ right, or interest of the plaintiff in or to tho block of land in the declaration mentioned, or in or to any part thereof, ' ■ ’ ■ "‘ " ‘

Mr. Conolly submitted that the Crown grant contradicted the second allegation, which stated that it was agreed to insert the name of Apeia Pahoro as owning the interest of the natives named- forming the hapu of Ngati Papatua Maro, and that he should hold it as trustee for them ; but instead of that in the grant he was inserted in his own right. ' Judge Gillies : Surely there is no contradiction? Mr. Conolly : I submit there is a contra-. diction. Judge Gillies : It is especially in accordance with the Act. ■ Mr. Conolly : The alleged agreement, that he should he inserted as a trustee, could not bo under the Act. ‘ Judge Gillies : It was done in pursuance of the Act, and that is done every day in the Native Lands Court. Mr. Conolly ; His name is inserted in the grant, but not as a trustee. Judge Gillies : More than ten cannot he put in a grant, and the natives aro told to settle who shall be put in. Mr. tConolly : According to tho Native Lands'Act, 1865, it did not constitute a trust. He contended that the declaration was bad, inasmuch as. it stated that Apera Pahoro was inserted inthe' Crown--grant as trustee in pursuance of an agreement. The whole of the transaction was alleged to" he in pursuance of that agreement, which was taade prior to the land being dealt with by the Native Lands Court, and was therefore void, It was also had as a declaration of' trust, there being no consideration expressed. 1 The really inaterial point in the case was that the declaration of trust was alleged to; be made.in pursuance of an agreement which was void. It was contended in the Court below that the Native Lands Act, 1865, was only intended to apply to agreements made between natives on the one hand and Europeans on the other; but manifestly that was not the desire of the Legislature. The 75 th section of the Native Lauds Act, 1875, said, “ Every contract or promise affect- • ing or relating to native land ini respect to which a certificate of title shall hot have been issued by the Court shall be absolutely void.” The 48th' section of the act barred all. estates, rights, and interests of all persons except the grantees, and vested in the grantees such estate or interest as expressed in the grant. By the 75th section, this contract or agreement, that Pahoro should hold the land in trust, would he absolutely void. Judge Gillies considered the agreement to be simply that a certain name should be inserted- in tho grant, not ah agreement that certain persons should be interested as owners. ;In the Court below it was argued that tho 75 th section was only intended to apply to dealings "between natives and Europeans, and it was meant to'proteet the natives in their dealings with land ; but it would be a very forced contention to suppose that any difference was to he made between dealings of natives with Europeans, and those of natives with natives. Mr. Conolly submitted that the contract was void absolutely, and what was done after- : wards in pursuance of it was void also. However, if it should bh held not to be void, it had to bo considered whether it had been made in sufficiently precise terms. Curiously enough, in, the Court below it appeared to have been, assumed on both sides that the conveyance by Pahoro to Ormond was for valuable consideration, and the Chief Justice first discovered that there was no allegation in the declaration that there was valuable consideration. At all, events, it was not stated in ‘ set terms that itwas for. valuable; consideration. A strong, point relied upon by the other side was that the declaration of trust made by Pahoro in 1860 was not voluntary; but was in pursuance of the previous agreement. Assuming as against. himself that the so-called declaration of trust was libt invalidated by having been made,; in pursuance of a void agreement, then the question would be, was it" sufficiently precise and definite to be taken as a, declaration of trust at at all. ’ The Chief Justice : Why should it be void because made in pursuance of a void agreement I Mr. Conolly : The agreement being void that which was done in pursuance of it would be void. , ' ■ Judge Richmond : Does it bring it anything lower than a mere voluntary agreement ? If' you are'right and the plaintiff has no standing ground under the contract, he may still be entitled as a volunteer. _ j Mr. Connolly : As a volunteer he might; but it is not alleged that ho is as a volunteor. . Judge Richmond : Patoriki might be entitled as a volunteer, although he is not entitled under a valid contract. The Chief Justice : Wo will assume for the present that there is a sufficiently definite de-. claration of trust. Why should it not beayalid declaration of trust simply because there had been a prior agreement to make it, which agreement was void ? If tho owner of laud makes a declaration, of. trust which he is not bound, to make, why should it not be valid though there had been a prior void agreement ? Mr. Conolly ; It is assumed here ithat there was.power to make it, and he was bound to make it.

Tho Chief Justice; Nevertheless, might not tho plaintiff fail in that, and sustain his oaso upon the declaration of trust f " Mr. Connolly : He claims under a declaration of trust under the agreement. , ' Judge Ciilies : Surely he was entitled to say, “ We have made a mistake in our declaration, and do not now rely upon tho agreement. 'There is a deed; let it speak tor itself.” '■ Hr. Oonolly : If tho demurrer bo allowed, of course ■ he, can amend the declaration; but ■ the declaration is bad at present. It cannot 1 bo contended that the trust was made ia pur-

suance of an agreement, and also that it was made'voluntarily without any previous - agreemeat. I submit it is necessary that the declaration should be amended. However the declaration' of trust is not such a one aS the Court can act upon; ; It was not stated what the plaintiff’s interest was, and it was not alleged that it was .au equal interest with the others. He only says: he has an,interest, and asks the Court to define it.. : ■ Judge Johnston: If he kuewtlie.law upon the subject, he would know that the, Court could not define it. ■ ■ ■, Mr. Connolly: The Court would.send the question to the Native Lands Court.: ' Judge Gillies The Native Lands Court would decide who had interests,; not the extent of them. 1 It did so at first,- but it was found to be a mistake, r

Mr. Conolly : The swords in the trust arc that he holds land ■ not solely, in his ; own right but intrust for the bapu, but what the interests arc is not stated. .Counsel 'cited : V. Matthews, 3 He . Gex., •P. and J., 139; Greville- V. Greville, 27 Bea., 595. He would only add that if the trust 'was.not sufficiently definite it could not be cured .by the ; notice' alleged to have been given. The of trust was a most vague document. ■ . _ i Mr. Izard said the declaration of the plain-: tiff was mainly objected to upon two grounds ; the ill'st being that the alleged agreement bein'* prior to the’ issue of. the certificate; by. the Native Lands Court, yas void ; the next was, that the declaration, of , trust was. bad through uncertainty. As to the first point ha .would admit that the language, of the Act. of 1855 prevented ono from setting, up. the . !agreement pei.\ s c; but he, submitted ■ that, the;, ‘case was analogous, to cases in which’something , had been relied upon which was forbidden by the Statute,of Frauds, yet the Court had said, i*< We will not allow, the. statute, to,be used, for an improper ipurposo.” Tiio rbaiiic ~argument might be ; to-, a . considerable extent. applied, here. The Court of Chancery had said if there be fraud the statute,shall uqt be setup,And that principle had been .extended by the Court of .Chancery to the Shipping .....Registry ; Acts. i In this case: the .declaration contained a distinct allegation of fraud.. The defendant in the Court below, had .distinct. notice of,, the existence of a prior agreement when, he took, the property, and that implied fraud. As to the trust, if A B and 6. had agreed that 'the, title should .be veeted iu A ; that being, .dope, a trust, in favor, of.B and. 0. arose in .regard to the laud held by A. With respect to the declaration of trust not being sufficiently specific, and the Court nut being .madeqtq; know, the nature of the,trust relied on, he contended |that was not so. It-was sufficiently clear, and definite,.and in.support of that vieiy counsel.cited . Forster v. Hale,, 3 . Yes. Jr., .695; Morton .y, Tewart, 2; Y. and C., C.C., 67; Liddard y. Liddavdj (i Jur., K.s., 439 -; Salisbury v., Dem ton, 3 K, and J., 529.:. A point relied on by the other side, was that the declaration of trust was void,because" the .plaintiff’s interest was ' not made known, but that might be easily ascertained by a. reference to. the Native Lands : Court. -He submitted;’that' there was a .per- ; feotly good declaration of tiusb, that the,trust . was sufficiently, clear,’ distinct, and definite, . and such a trust as the Court would carry out. . Mr. Conolly 'having replied, the Chief Justice intimated lEat,judgment wait reserved. ; The Qcurt.'adjourned ’ to,next'day at 11 o’clock. ■. 1 . . . . . '.. ~