COURT OF APPEAL.

New Zealand Times, Volume XXXIV, Issue 5682, 16 June 1879, Page 3

COURT OF APPEAL.

Tha judgment of tKb CoUrt was delivered; by his Honor tKe'Chief justice, as follows; in the .cases KawaUna' and Qthera v. Kinross; and Kawatiria iihd'' Others v. Barnett :—; These are appeals from the'judgment of Mr. Justice, .Richmond, over-ruling demurrers by the plaintiffs i to, each defendant’s second plea.. The defendants we're sued jointly, and pleaded separately. , plaintiffs .demurred to the second plea of each defendant; both demurrers were over-ruled in^the, Supreme Court, and the plaintiffs having appealed in both cases they were brought on together for argument. The ; 'plaintiffs in their, declaration allege that by. Deed of Grant'frdm the Crown, (which deed is set out) ! the land' nientioned in the,grant was’ granted (to, thhi ijlaihtiiff, Papra ,and - three! others) hatnihg therty arid their' heirs and; assigns, on tjra.copditipns .therein ,named. ,Itj • appears frorii the ‘grant set out that it was made siihjpct : t 6 ' the proviso that the land grahted ,‘should be inalienable by sale or by-'a' le ll3o for a longer period, than twenty-one years from the making of the lease, or hy mortgage,'except with the consent of, the being ! 'fjrst previously obtained to such sale, lease, 1 ; or; mortgage, . That by deed ■ of lease, dated 19th .August, 1867, they,demised the said'land to v Gully and Morecroft 'for a period years from the, Ist January, 1867, rit a ydrirly’rentai of £269, and that Gullj and Morecroft entered under, the lease. That by deed^.dated 1 13th September, 1876 (set out), Gully and Morecroft assigned .the said term of years to the defepdant Kinross on the terms and conditions therein mentioned. (The assignment wai by way of mortgage.) That by ’ deed (set out and , purporting to be made pn ; l'4th September, 1867) Kinross,assigned the terih (by way of mortgage) to one Braithwaite,' qs' manager of the TJnionßank. That by deed’(set butand , purporting to be made 2nd June, 1879),Braithwaite)bydireption of Gully ; ahd .Morecrofti/and 'bf Kinross,, as-! signed to defendants,'Kinross and Burnett,the unexpired residue 9? the term. (ThatV the, da- ’ fendanta have’ epterqd under, the, said .deeds (by this must ; l?e, meant ( the deed),, and have continued,' jn ,possession, tig the present time. There, »fo other allegations M . toVthe deaths of twp'ot .the leasers,. after the, making of the said lease,' and appoin,trabnt,.,in 1876, under the jflatjyes\Land Act, of successors to tbbse tivb in''respect' of the . said land. . Since-,the, commencement ofthe suit, Kawatina, one, other of the lessors,'has died, and there is . a suggestion' of administration granted of his"effects by the Supreme .Court to otyeßetitf, who ispiade plaintiff ipstead, of Kawatiua. The declaration then goes on.to state that) by virtuebi the premises, thaplaintiffabayebeeh since the, dptepf. the assignment to.Kinrdas and Burnett, and, are,’ still ( entitled ,to receive, fropi the defendants, the,;(yearly*jeritof £260, fcut the defendants have not paid it or any part pf it, ahd concludes with a, clpim pf £2340, being rent from januriry 1, 1868, to January 1, 1877, and' £748 for 'interest;' at,'theirate of. B..per cent.; in all, £3OBB ,165.. The second, plea of Kinross alleges that since June 2,1869 (the data of -theVassignment* to the defendants, of the lease)) it was agreed'between the plaintiffs and the defendants., that the. said.lease should be surrendered, and ,that a new lease should be granted in the terms thereafter mentioned; that an agreement in writing was signed in the words and figures set out, and purporting to be made oh the 80th July, 1869. Notwith : standing the averment it seems certain that ■ th’e : agreement wiis made with the four lessors; arid not with the present plaintiffs, but no point has been made as to 1 that. The'agree- , ment states, that the sriid natives agree to accept a surrerider of a lease of the said! laud, and to grant to-tho defendants a leas# of the said land for 21 wears, from Ist June, 1869, at the reduced yerirfy rent of £IOO ; it then states that the in the former lease is £9O ; .and that in consideration of such lease the defendants’rigirrie to pay £536 19s. . Arid in the agreement is stated a proviso that the -present agfeement"waß made’expressly on the condition that the new lease be approved rind consented to by : the Governor in Council in conformity^with the Native Lands Act then in force,

and that the proposed lease be in the same terras as the aforesaid lease, with the exception of the term of the rent reserved. Not only is the agreement set out but what purports to be the execution thereof by each of the natives is set out, together with the attestations thereof, each execution purporting to.be attested by a licensed interpreter and another person, after translation and explanation to the persons executing. The plea then goes on to aver that by deed of lease, dated 16th August, 1870 (setting it out), the grantees and lessors demised the said land to the said Burnett ; that Burnett entered into possession, and that the sum of £795 10s. 3d., mentioned in the last-mentioned deed, as still owing to the defendants, and that all rent reserved in the last mentioned deed has been paid. By this lastmentioned deed of lease the lessors demise to Burnett thesaid land, to hold from June 1,1869 for 21 years thence next, Burnett paying yearly* during the said terra, a rent of £IOO by yearly payments, the first having been paid oa Ist June, 1870, and being due on the Ist June in each year. This plea no doubt is intruded as an answer to the whole claim. As an answer not only to rent under the lease of 19th August, 1867, accruing after the execution of the lease set out in the plea, but also to rout accrued during the period between the assignment to the defendants of ,2nd June, 1869, and the execution of the lease set out in the , The defendants rely on the lease as effecting a surrender from the date of the agreement, or a release of all rent since the date of the agreement. The plaintiffs demur on several grounds. The first is, that it is not alleged in the plea thfit the agreement of 30th July, 1869, had , ever been carried into effect; that is, that it does not appear, that the lease had been surrendered. Assuming for the present that the .plea sufficiently avers a valid lease made on the 16th August, 1870, then, from that date at any rate, there was a surrender of the lease of 19th August, 1867. But this ground of demurrer seems to bo taken upon the supposition that the defendant intends, by the introduction of the averment as to the agreement, to set it up, with the lease as a surrender at an earlier date thau the date of the lease of August, 1870. And for the plaintiffs it was contended that, even assuming a sufficient averment of a valid lease made on the 16th August, 1870, there was nevertheless nothing alleged in the plea from ,whiph;it appeared that there was any surrender. earlier than the date of the lease of 16th August, 1870, and consequently that the rent accruing, due under the, lease of 19th August, 1867, during the period between the 19th August, 1869, and the date of the execu-, tion of the new lease was not answered. , This objection is that the plea though pleaded to the whole answers only, a part and is therefore ■ demurrable ; but no such ground of demurrer, is taken by the demurrer, nor was it attempted to, be so argued In the Supreme Court. , I think that, though possibly the objection may; be made out from the record, it is not so apparent that on appeal the Court ought to take notice of it, the plaintiff not having made it a ground of demurrer, it not having been argued in the Court below, and the Court below not having proceeded upon it or noticed it. The second ground of demurrer is, that it is not alleged that the approval of the Governer in Council had been obtained to the new lease. But this proviso, it was competent to the parties to waive, and as the plea alleges an absolute demise, and not one subject to condition, .it must be intended that the parties had waived this stipulation. The third ground of the demurrer is that the lease of 16th August, 1870, is a mortgage as well as a lease, and, con-, sequently that it is . contrary to the proviso in the grant, and is bad. No doubt a. mortgage of the land in the grant without the Governor's, consent would be void. But the lease does, not purport to be a mortgage of the land : it. may be that evidence might show that the parties intended the lease to be a security for the debt referred to in the lease, and the,lease rhifht upon such evidence be held to be au equitable mortgage of the land ; but there is nothing from which it can be inferred that the lease rs other than what fit purports to be, that ,1s a , lease in; possession for a period of not -more than twenty-one years with an authority to the lessee to apply the rents in payment of a debt'.due to, the lessee by the lessors. This does riot require, the Governor’s consent. As to the fourth, fifth, and sixth grounds of demurrer, they may be. dealt with together. I think that as the plea alleges that the deed was ‘•a deed of lease,” and that by it the lessor, “ demised”' the land; it is good in substance,' and that the objections, even if well founded; are not such As can be taken on demurrer. _ I should have arrived at the same conclusion had 1, thought that the lease, was made in the exorcise of a power given by the Native Lands Act, for even in such a case the objection be one not open on demurrer ; for if the deed did operate as a demise, it must have been well executed, and there must have been’compliance with all requirements of the Statute Jaw (it there be such) necessary to’make the lease a valid demise, otherwise it would not be a demise, therefore ’ the demurrer must be overruled. As this is the conclusion at which I have arrived, it is unnecessary to give any opinion oh the construction to be put on the 32nd section of the Native Lauds Act Amendment Act, 1867, relating to the declaration to be made by the interpreter of deeds by Maoris affecting lands passed through the Native Lands Court. For the reason given with regard to the plea by Kinross, I think that none of the grounds -of demurrer taken against the plea of Burnett-can be sustained ;. but for the same reasons that Kinross' plea is no answer to the whole claim and therefore.bad; is Burnett’s plea bad ; also. The demurrer in each case must be overruled with costs iu this Court, and in the Supreme Court.