COURT OF APPEAL.

New Zealand Times, Volume XXXIII, Issue 5510, 23 November 1878, Page 3

COURT OF APPEAL.

Friday, November 22. (Before their Honors the Chief Justice, Mr. Justice Gillies, and Mr, Justice Williams.) KAWATINA AND OTHERS V. KINROSS. Mr. 801 l applied for a postponement of this case upon terms agreed upon between the parties, which it was desired the Court should take notice of. The plaintiff, Kawatina, had died during the progress of the suit in the Court below, and to prevent the necessity of proceeding de novo it was wished to enter upon the record a suggestion of his successor. Of course the agreement come to could not bind the successor hereafter, whoever he might be. The Court approved of the terms of the postponement. WARDBM. T. BUCKERIDGB. This was an appeal from a decision of the Supreme Court, Wellington District, discharging a rule for a new trial, on the grounds of misdirection and the verdict being against the weight of evidence. Mr. Izard (with him Mr. Bell) appeared for the appellant; Mr. Stout (with him Mr. W. S. Eitzherbert) for the respondent. Mr. Stout took a preliminary objection that tho requisite notice of appeal under section 26 Court of Appeal Act had not been given, and that the case had not been eettled by the patties or or tho Judge. After some discussion the obiection was withdrawn conditionally that certain affidavits wished for by the Attorney-General shotdd be taken notice of, subject to objection by Mr. Izard. The declaration set forth that on the 29th of November, 1858, Walter Alzdorf, being lawfully possessed of town acre 116, sold it to William Parsons for £B, and gave possession of tho land to the said purchaser. In or about the year 1861 the said William Parsons, who was then residing at the Wairarapa, left the province of '■Vellington, and when leaving he gave possession of the said town acre to Robert Buokeridge, the father of the plaintiff, and also delivered to him a memorandum of sale set forth, and Buokeridge as the agent or servant, and on behalf of William Parsons, thenceforth for many years until his death on the 12th September, 1874, continued in pospossessiou of said town acre, and fenced it in and planted it as an orchard, and otherwise considerably improved it. After the death of Buokeridge his widow and family remained in possession of the land as agents by themselves or their Tenants till October, 1874, when plaintiff purchased the land of Parsons for £4O ; and was authorised by Parsons to receive the Crown grant from Alzdorf, and all rent due from Wiggios, the tenant then in possession. After entering into possession plaintiff let the land to Wiggins, who continued in possession as tenant until the defendant Warded either by force or collusion compelled or induced him to deliver up possession to him. On March Ist, 1876, Alzdorf authorised in wilting plaintiff to receive the Crown grant. Upon presentation by the plaintiff at tho proper office in Wellington of the said delivery order set for;h delivery of said Crown grant was refused to the plaintiff on the ground that upon the registry of deeds and documents relating to title registered at the office in Wellington for the registration of deeds and muniments of title relating to land the said tows acre No. 116 appears to be duly vested in the defendant Herbert Samuel Warded. The deeds on the registry were a memorandum of agreement, by which one Thomas Ingley, of Carterton, agreed to sell, and Henry Samuel Warded, of Featherston, agreed to purchase for £IOO town acre, Featherston, 116, and on account of which Ingley acknowledged the receipt of £5, the balance to be paid on the execution of a conveyance with clear title to the said H. S. Warded. Further, a memorandum of sale of the'same property to Mrs.F. Udy for£soon the 6th February, 1876, by Ingley, from which Ingley, by deed dated 23rd August, was released by Mrs. Udy and her husband. Further, a deed bearing date 15th April, 1876, between Alzdorf and Ingley, which set forth—Whereas in the year one thousand eight hundred and fifty-eight the hereditaments and premises hereinafter described were sold by the said Walter Von Alzdorf to the said Thomas Ingley for the sum of £9. which said sum was then duly paid by the said Thomas Ingley to the said Walter Von Alzdorf, but no conveyance thereof has yet been made : Now this deed witnesseth that in consideration of the sum of £9 so paid as aforesaid (the receipt whereof is hereby acknowledged) he the said Walter Von Alzdorf doth hereby convey and assure unto the said Thomas Ingley and his heirs all that piece or parcel of laud situate in and being section numbered 116 on the plan of the township of Featherston as the same piece or parcel of land is more particularly delineated inJShs plan drawn hereon, and therein colored pink, to hold the said piece or parcel of land, with the appurtenances theieunto belonging, unto the said Thomas Ingley his heirs and assigns for ever : Provided always that the covenants for title to be herein implied shall extend to and be taken as against the acts, deeds, and defaults of the said Walter Von Alzdorf, and of all persona lawfully claiming or bo claim by through under or in trust for him only, and shall extend no further or otherwise. In witness whereof the parties have hereunto subscribed their names.” The declaration then proceeded—“ 11. That during all the times of the said several transactions concerning the said town acre it was in the possession of the plaintiff by his agents and tenants, and bad been before the time of plaintiff s purchase iu the possession of the said William Parsons through bis agents and tenants. 12. The defendant Warded for many years and during the occupation of plaintiff’s father and family resided on land nearly adjoining, and was well aware of the fact that said town acre was in possession of plaintiff’s' father and family and of Wiggins, as tenants, and at the time of his purchase he either had full notice of the right, title, and interest of the said William Parsons and of plaintiff, or else he wrongfully and improperly abstained from inquiry as to the nature and particulars of the possession of the plaintiff's father and family, and afterwards of the plaintiff. 13. That on the 15th April, 1876, the date of the said conveyance from Alzdorf to Ingley, Alzdorf was not in possession of the said land or any part thereof, nor had be been at any time in possession thereof between that date and the year 1858, when he sold and gave possession to the said William Parsons. 14. That the recital in the conveyance of a sale by Alzdorf to Ingley was and is a false recital, and plaintiff charges that Ingley went to Hawera and obtained conveyance from Alzdorf at the request and by the direction of the defendant, and in collusion with him, and for the purpose of giving to him a colorable and pretended title as against Parsons and his representatives. 15. Some time in August, 1876, Wiggins refused to pay rent then due and payable to the plaintiff for his occupation from May, 1876, alleging that the defendant had required him not to pay said rent, and had asserted that ho was the true and rightful owner of the said land. 16. Some time in the month of September, 1876, Wiggins, unknown to the plaintiff, and either in collusion with Warded or by compulsion from him, delivered up to him possession of the land. 17. Tho plaintiff has lately duly applied to the Registrar of Land at Wellington for leave to enter a caveat against the defendant bringing the said town acre under tho Land Transfer Act and obtaining a certificate of title therefor and has also applied to the Registrar to enter such caveat himself in pursuance of the statute, but the Registrar has refused both applications on the ground that said statute does not empower him either to enter or permit the entering of any caveat unless and until an application is made to bring the' land within the provisions of the Act &c. Wherefore the plaintiff claims as follows : —l. That the said pretended sale of the said land to the defendant may bo pronounced fraudulent and void. 2. That the said several deeds and writings purporting to bo tho title deeds of tho defendant to tho said land may be cancelled, and tho plaintiff decreed to be tho (awful owner of the said land. 3. That possession of tho said land may bo given to tho plaintiff ns such lawful owner. 4. That an account may be taken of the gains and profits of the said lands during tho time tho same has been in the possession of the defendant and that the defendant may be decreed to pay or account to the plaintiff for the whole amount of such gains or profits. 5, That the defendant may be restrained by the order and injunction of this honorable Court until tho hearing of this cause from Belling or offering for sale or patting with the possession or otherwise dealing with tho said land. G. That defendant may be ordered to pay to plaintiff the costs of this suit. 7. And that plaintiff may have such other relief as the circumstances of the case may requife. Defendant, in reply, pleaded that in 1858 Alzdorf contracted to soli the section to Ingley for tho sum of £9, Ingley contracting to buy the same without notice of any claim of plaintiff thexeto, and thereupon Ingley paid to Alzdorf the sum of £9 as the price of the said section, and afterwards and before the commencement of this action, to wit, on the 16th day of April, 1876, and without notice to Ingley of any claim by tho plaintiff thereto, Alzdorf conveyed tho said section to Ingley by;

the deed of the 16th April, 1876, as in the plaintiff's declaration set forth, and the said deed has been duly registered in the office of the Registrar of Deeds at Wellington. And for a further plea the defendant said : —That on the 21st March, 1870, Ingley being then entitled to an equitable interest in the section, contracted to sell to the defendant, and the defendant, without notice of any claim by the plaintiff, contracted to buy from Ingley the section at the price of £IOO, and the defendant thereupon paid to Ingley the sum of £5 in part payment of the £IOO, and Ingley being then seized in fee of the said section by virtue of a conveyance thereof duly registered in the office of the Registrar of Deeds at Wellington from Alzdorf in consideration of the further sum of £95 paid by the defendant to Ingley, conveyed the section to the defendant, and the said last mentioned conveyance has been duly registered in the office of the Registrar of Deeds at Wellington : And the defendant says that at the time of the payment of the said sum of £95, and of the execution of the said last mentioned conveyance, he had no notice of any claim by the plaintiff to the said land. The plaintiff, in replication, denied all the material allegations in the defendant’s pleas. Issues were settled, and the case went to a jury, who generally found in favor of plaintiff. But plaintiff obtained a rule nisi for a new trial on the grounds of misdirection and that the verdict was against the weight of evidence ; resting his application principally upon the 18th and 23rd issues, and the answers thereto, which were ns follows;—18. Did the defendant purposely abstain from enquiring into the nature and particulars of the possession of the said Robert Buckeridge and afterwards of his family and of the said Thomas Wiggins with a view to avoid express notice of their title! Yes.—23. Was the conveyance of thesaid land to the defendant wrongful and fradulent as against the plaintiff ? We find by direction of his Honor the Judge that the contract for sale and conveyance to the defendant were void under the statute of Henry VIII. On hearing argument, the Court discharged the rule nisi, and plaintiff now appealed against that decision, Mr. Izard : The mere fact of Ingley being out of possession would not impeach his right to execute this conveyance. Adverse possession would not render the deed void, in spite of 38 Heniy VIII., chap. 9, sec. 2. Sugden Vendor and Purchaser, 13 ed., p. 774. Oxwith v. Plummer, Bacon abrid., Title E., vol. sth, p. 664, and in Gilbert’s Reports 13, and 2 Vernon, 646. The Chief Justice : The statute was not raised in that case. Mr. Izard : No, for reasons given by the Vice-Chancellor iu his judgment, but in Jones v. Smith, 1 Hare 63, Oxwith v. Plummer was relied upon by the Vice-Chancellor as a bind;, ing authority for the proposition I am putting’ before your Honors ; also Bernhart v. Greenshields, 9 Moore's P.O. Reps. 18. In Doe v. Evans and Richards, 14 L.J.C.P. 237, which no doubt is against me, there are very peculiar circumstances, which do not occur here. Hero both claim through the same root of title, but that was not so in the case mentioned. There is another case, Cook v. Field, 19 L.J. Q.B. 441, but that is not so strong against me. The statute of Henry has been superseded by 8 aud9 Viet., cap. 166, sec. G, which is very similar to section 9 of the Conveyancing Ordinance. I can find no cases since it was passed, and the presumption is that 8 and 9 Viet, takesaway theprovisiona forbidding dealing with such a title as this. However, the statute is net applicable to the circumstances of the colony, iu fact is not law iu this colony—it was not introduced by the Colonial Act of 1854. The statute was passed in England under circumstances which never existed iu this colony. Again, this colony was founded by a company who sold land to persons who were in England. Land was held by people in England who intended to come to the colony, but were never in possession, and who, as a matter of fact, have not got possession to the present day in many cases. An Act like this, bristling with penalties, cannot be held to apply to a colony founded in the manner in which New Zealand was. 4 Kent’s Commentaries, p. 500; Luke v. Harper, American Central L.J., vol. 3, p. 288 ; King v. Johnstone, 3 N.Z. Jurist, 94. But even if applicable it is virtually repealed by our Conveyancing Ordinance, sec. 9, the words of which are sufficient to enable the possessor of the legal estate in land to convey it by deed. Statutes will be construed strictly according to the ordinary meaning of words used. Miller v. Baldwin, 43 L.J. Q.B. 467; Worgan v. Curl, N.Z. Jurist (judgment of Oh. J. and Judges Johnston and Williams.) The verdict is against the weight of evidence, but if the Court is not with me on the other point this will not be of much value to mo. To support such an answer to an issue as that which is given to issue 18, there must be evidence ' of purposely abstaining, but there is no evidence of any absention, there is no evidence that he did any act or avoided any enquiry. The Judge in the Court below pointed that out to the jury, yet they found as stated iu the issues, Mr. Bell, on the same side ; The authorities quoted by Mr. Justice Richmond as to champetry and maintenance are not in point, because this contract and conveyance are not without the general policy of the law, and are not within the mischief the law intended to remove. The learned Judge’s argument is simply this : The words of our Ordinance in their literal sense work a repeal of the statute Henry VIII.; but wa must try to see what is the intention of the Legislature, and to do that we must ask whether it was intended by this side-wind to repeal an Act which protected people against contracts for champetry and maintenance. On that point I would refer the ‘ Court to the definition in Stanley v. Jones, 7 Bingham, and upon the question as to whether this law is applicable to this oniony, AttorneyGeneral v. Stuart, 2 Mer. 159. Mr. Wardell did not buy for the purpose of maintaining a a suit, therefore there was no fraud on his part. Mr. Stout: As to tho first point, that supposing the statute of Henry VIII. is in force iu this colony, is this case within its provisions ? The only citation of my friend which deserves notice is Oxwith v. Plummer, because the quotation from Sugden and the later cases are biaed upon it. But in that case the question turned upon the eight acres of copyhold, which never were intended to be included in the mortgage, and it was upon the non-inclu-sion of those eight acres that tha decision was based. That disposes of the whole point. If Oxwith v. Plummer is law, then the statute is repealed and all the decisions of late years and dicta of text writers, on the ground that the statute is iu existence, are beside the question. The object of tho statute is well defined iu Addison on Contracts, 7th ed., p, 430. That was the law of England in 1875 and long after the passing of 7th and Bth Viet. I rely on Williams and Potherill, 5 Bingham. Suppose Ingley had a legal estate at tho time of his conveyance to Wardell, there was some one in adverse possession to him. The Conveyancing Ordinance does not invade the statute of Henry, and my friend's contention as to it is negatived by Webb v. National Bank, 2 N.Z. Jurist, 81; Hill v. Boyle. If the words are to be taken in the wide sense contended then the right to assign an action for slander could be maintained, there would be no such thing ns champetry; that is not the interpretation put upon 8 and 9 Viet, by the Courts at Home. Hunt v. Remnant, 8 Exch. 675, and Hunt and anr. 9 Ex. 635. The statute of Henry has been held to apply in Victoria. Bell v. White, Kerferd and Box’s Digest, 682. A’Beckett v. Matheson, W. W. and A’B. 29. 2 Parsons on Contracts, 766. The remarks of Maule, Judge, in Williams v, Evans, show the reosons for which the Act was passed, and show it is applicable to New Zealand. The learned counsel had not concluded when the Court rose.