Rees & others v. Barker.

Poverty Bay Standard, Volume IX, Issue 957, 2 July 1881, Page 2 (Supplement)

Rees & others v. Barker.

The following evidence taken at the recent trial in the above case at Napidr has not yet been published in the local journals. The trial, which took place before His Honor Judge Gillies, and a special Jury set forth that in May, 1879, the plaintiffs, William Lee Bees, Wireinu Pere. and Riperata Kahutia, as trustees for certain Natives, purchased the interest of the defendant, Percival Barker, in the Whataupoko block, Poverty Bay, for the sum of £17,500, giving as security for the money a mortgage over the property sold, principal and interest being payable on the 24th of February last ; that lhe defendant Barker accepted 2500 acres for £20,000, and that the balance of the purchase money was secured over a portion of the block. Default being made in the payment of the balance the defendant advertised the property for sale under and by virtue of the deed of mortgage from the plaintiffs. It was contended by the plaintiffs that the mortgage deed was executed with the intention of all the parties to the deed that the plaintiffs should have such time as might be necessary to enable them to obtain the title to the land and to raise money by sales thereof to the best possible advantage for the interests of all the parties concerned. The plaintiffs also claimed as a set off against the principal the amount of £713 for the use and occupation by the defendant of the mortgaged property during the existence of the mortgage. The plaintiffs prayed that the defendant be restrained from selling the property mortgaged by them, that accounts be taken between the parties, and that the Court should give such relief as it might think fit. Mr Rees appeared for himself, Mr White for Riperata, Mr Lee for Wi Pere, and Mr J. Smith, Mr Carlile, and Mr Finn for the defendant.

Mr A. M‘Kay was chosen foreman of the jury. Mr Lee read over the issues to the jury, and Mr Bees at great length explained the circumstances of the case. William Lee Rees, solicitor, examined by Mr. Lee, deposed that he was a trustee with the plaintiff Wi Pere in the land called Whataupoko. The document produced constituted them trustees of the block. In February, 1879, a deed of mortgage in respect to the land was signed. The first dealing with defendant in reference to the land was about May 20th, 1878. Defendant came to witness and asked if witness could not help him in the position he was placed in with regard to the title of his land. Witness was acting for some Natives who were opponents of defendant. Mr Smith objected to any evidence •of what took place in defendant’s absence. W. L. Rees continued: Witness was acting for the grantees of Whataupoko. Defendant asked if witness could arrange about his title to the property. They had a long conversation, in the course of which defendant said he either wanted the title completed or to get out of the affair altogether, and as he knew' witness was acting for the Natives and had influence with them, he wished witness to assist in arranging some plan which would be of benefit to both himself (defendant) and the Natives. Witness replied that he would do so ; that he was as anxious to get the matter settled as defendant was, and that he would see the Natives and find out what they would do. Witness did see the Natives about the matter, and informed defendant that they would not sell. Defendant asked what was to be done ? Witness told him he must do one of three things—either contest the disputed titles in a court of law’, or partition the laud between himself and the Natives, or sell out. Defendant said he did not wish to remain as he was, and did not want to contest the matter in any court. Witness asked lefendant if he would partition the land—take some himself and leave the rest for the Natives. Defendant considered a little, and then said he had ‘o much trouble about the land he vould get rid of it altogether. Capt. fucker and Mr. A M‘Donald were >resent. Witness asked defendant if he vould sell and he replied that he would, nd in answer to a question as to how inch he wanted, put the price at ‘40,000. Witness said he knew' that he Natives had no money, and that it muld have to come out of the land, defendant would have to give time for ie payment of the money. Defendant 'reed to that proposal and asked if it. as a bargain. Witness replied “ Yes,”

and they shook hands upon it. Defendant tvent away, but came back soon afterwards, and wanted to impose a lot of conditions. Witness could not distinctly remember what was said. Defendant wanted so much of the money paid down, and so forth. Witness got angry with him, and said that nothing of that had been mentioned before, to which defendant replied, “ Oh, it w'asn’t put in writing.” A few' days after, as witness was coming up to Napier, he received a letter from defendant. Witness had not the original letter, but there were copies of it in the affidavits filed. Tn that letter defendant said that negotiations should cease till all the shares in the block were determined by the Land Court, w’hen he would be open to receive an offer of £65,000 for the interests. On the way down to the boat, witness met defendant in the street. Defendant asked if the letter had been received, and on being told that it had he asked if an answer had been sent. Witness replied, “ Certainly not. I only regard your letter as a declaration that you will do nothing in the matter.” Defendant then complained of the unpleasant position he was in, and asked if witness would enter into a contract. Witness replied he was perfectly willing to do so on reasonable terms, adding that he was disappointed in regard to the former arrangement, as he had told the Natives of it and had afterwards to tell them that the affair had fallen through, and it made him look foolish. Defendant then reduced his price first to £50,000 and then to £47,500, and as there would be no interest to be paid for three years the last offer w'ould be equal to the bargain first made. Witness asked what w’as to be paid on completion of the contract, and defendant replied £2OOO. Witness said he w'ould send down wmrd from Napier, but defendant said “ Come, let’s go and alter it now.” They w'ent into a store and the letter w r as altered by defendant from £65,000 to £17,500, the alteration being initialed by defendant. After considering the matter in Napier witness wrote an acceptance of the terms, etc., in the altered letter, and the acceptance was put upon the register together with the letter. A few' days after, in consequence of receiving a message, witness went to the Bank of New' South Wales, when he met defendant, Mr Burke, and Mr M'Donald. [At this stage the Court adjourned and resumed again at 2 o'clock].

W. L. Rees continued : Mr. Burke stated that he wanted to speak about the agreement between witness and defendant in regard to Whataupoko. Mr. Burke said “ I find that Mr. Barker has sold to you his interest in the Whataupoko, which he has no right to do. He and M’Danald owe the bank £15,000, for w'hich Barker is responsible, and the bank will not allow the sale unless the money is paid.” Witness then spoke of borrowing money as a first mortgage on the block. After tw r o or three days an agreement was made With the bank, dated June 10th, 1878, of which the paper produced was a copy. [The agreement provided that if Mr Rees and the Natives paid the debt of £15,000 to the bank, the property would be sold for £49,000, Mr Rees undertaking to Iget the signature of every livtng grantee to the block.] Before the agreement was signed defendant agreed to provide witness with the £15,000. In February 1879, after a great deal of negotiations between the parties, witness, defendant, Wi Pere and M‘Donald met in Mr Rogan’s office, at Gisborne, to sign certain deeds. Defendant signed the trust deed. The deed of conveyance to defendant of 2500 acres in Whataupoko w'as signed by witness and Wi Pere. Two deeds of mortgage were also signed by witness, Wi Pere and M'Donald —one of them to defendant and one to M'Donald. At the time of signing these deeds a conversation took place between witness and defendant. Witness objected to there being any fixed date in the deed for the payment of the w'hole money, giving as his reason that it being understood between them all that the land was to be placed under the Land Transfer Act for the purpose of giving complete titles, and that as the works (bridges, surveys, &c.) had to be done, they might not be able to complete them within the two years. They w'ould therefore be placed at a disadvantage with the terms of payment mentioned in the deed. Wi Pere objected on similar grounds. Defendant said there need be no difficulty on that score ; that some time must be put on the mortgage deed, and most likely they would be able to complete what

was required within two years. If, however, theprelinlinary arrangements could not be completed so that the land could be sold in two years, all the time that was needed w'ould be given. By putting an early date in the deed it w'ould incite witness and Wi Pere to work diligently and put the land into the market as soon '»» possible. Wi Pere wanted five years, but defendant objected that that period was too long. Wi Pere then asked for three years, when defendant said that if they put two years in the deed and it took even five years to complete the titles they would still get the land. McDonald took part in the conversation. He said although the deeds might be so made out as to limit the time to a certain period both he and defendent would give what time was necessary to carry out the intentions of all the parties. Upon that understanding the deed was signed. The

plaint ills had done a great deal since then to enhance the value of the land. All the most valuable part of the land had been surveyed and cut up in township and farm lots. The total cost of the surveys w’as about £9OO or £lOOO. It was done with defendant’s knowledge and consent. Lines of roads had been laid off, and plans got out for the purposes of the sales. The bridge from Gisborne to the block was nearly completed, at a cost of £2OOO. It had been erected for the purpose of helping the sales, and with the same purpose preliminary advertisements for the sale of the land were published in various newspapers. Witness had agreed last year with defendant that the sale should take place in February of this year, as the land transfer title would be obtained by that time and the bridge completed. February was by consent altered to March, and then to April, and it so remained. Objection had been taken to the land transfer title being given. The land could not be sold in April as advertised, as defendant had commenced adverse proceedings, and himself advertised in March the sale of the land under his mortgage. On the 14th of March witness received a letter from defendant stating that he w'ould advertise the land for sale if the money was not immediately paid. Witness saw defendant in Mr. Finn’s office, and he told defendant to consider what he was doing, that he was committing a breach of the understanding which had existed for so long a time. Witness asked him not to commit a breach of faith which would do him no good, but w'ould do witness’s side a great deal of harm. Witness pointed out that he and the other plaintiffs were doing all they could towards selling the that they were expending money on the block, and had made themselves liable for a heavy amount. Witness remonstrated with defendant, pointing out that he was not treating them (plaintiffs) fairly. Witness told defendant that he wanted the order for the 1000 acres to himself and the other plaintiffs in order that they might proceed to get the land transfer title. The debt due to Captain Read of £3500 was released by witness under agreement. Defendant had

never given witness any assistance whatever as promised. Witness knew Mr Ward, who was solicitor for defendant at the time. Witness received a communication from Mr Ward on tne 24th of February. Previous to that witness had applied for a land transfer certificate for the 1000 acres. Defendant said he would give his consent and the form was prepared, but the next witness heard was that defendant had lodged a caveat. Defendant subsequently complained that his 2500 acres did not contain enough flat land. Witness taxed defendant with intending to break faith, but the defendant denied it, remarking that he would do nothing that was Unfair. By Mr Smith : The first interview witness had with defendant was when the latter came to seek witness’s assistance. When they met he did not tell defendant that his lease was no good, and that his title to a share in the block w’as rotten. Witness might have said the Natives wanted their land back. Defendant did not ask witness how much he would give for his interest in the land, but he would not swear positively. Witness did not name the sum of £40,000 first, nor did defendant say, “ That will not pay me.” Witness did not shake his fist in defendant’s face and say, “ If you’ll not fake that 1 ’ll blind you with writs.” Nothing of the kind took place. In the letter received from defendant there was a statement that after fourteen days from the date of the letter he would sell his whole interest for £65,000 and give a cash bonus ; but

the bonus was not for w'itness. There had been no conversation about a cash bonus foi- witness. By the agreement of the 10th of June defendant agreed to sell for £19,000. The agreement was substantially carried out. It was carried out so far as regarded the price of the land, but the agreement fell to the ground. All the agreements all through w'ere looked upon by defendant and witness as modifications of the main agreement. All the agree- , ments and negotiations most certainly did not culminate in the trust deed. Witness drew’ up the trust deed. The mortgage of the 25th of February, 1878, was also prepared by witness’s clerk. The trust deed was executed in Mr Rogan’s office. The conversation held there took place before the mortgage w'as signed. Captain Tucker was at present witness’s articled clerk, but at that time he was clerk of the Cook County Council. Defendant did not give the assistance he promised in borrowing the £12,000. Witness understood defendant was to get the money. When the mortgage was signed Wi Pere wanted five years. The term was left blank and filled in afterwards. He was not prepared to say if the deed was engrossed in witness’s office. He did not think it was. It was not true that witness could not carry out the agreement of May 23, because of his inability to find the money. He never told defendant that he w'as unable to find the £15,000. He remembered meeting defendant in January at Mr Ward’s office and writing out the memorandum produced. Defendant did not say he declined the proposals contained therein. Witness had no recollection of defendant doing so. He met defendant in Mr. Finn’s office in March and asked him there not to publish' his intention to sell the block. Witness said he w'ould see witness on the following day, which he did. He proposed to give defendant further security over other lands, as the Natives were willing to do so. Defendant did not say, “ Mr Rees, you have so often failed in your promises, that I’ll place no further reliance upon them, but if you will post £lOOO to be forfeited if the mortgage is not paid off w'ithin a month, I will extend the time to that period ” Defendant said witness had failed to fulfil his promises, but witness reminded him that it was through no fault of his own ; that appeals had been lodged against the orders of the Land Court. Defendant said he thought witness would have brought £lOOO to forfeit. Witness said he had no £lOOO to forfeit. He purposed at that time to go to Auckland to raise the necessary money, but defendant w'ould not wait at all. The reason for defendant advertising the sale of the land was not because of witness’s inability to lodge the £lOOO. Witness did not threaten to stop the w'ork on the bridge. Mr Ward might have said in reference to the stoppage of that work, •“ Barker does not care a d for that.” Defendant said at the signing of the mortgage deed that he was not to exercise the pow’er of sale if witness was doing his best to complete the title, and to put the land into the market. Defendant had received no interest under the mortgage deed, and none of the principal except the £3,500 due to Read’s estate. <

The. following are the issues, and the jury’s replies to the same : — 4. Had the plaintiffs, Wiremu Pere and Riperata Kahutia, in the month of May, 1878, alienated their interests in the said Whataupoko 'block ? Not so far as the defendant is concerned. 5. Did the defendant, being desirous to obtain a perfect title to the interests in the said land he had so purchased as alleged, about the same time consult the plaintiff, William Lee Rees, professionally for the purpose of settling certain grave and serious disputes arising out of such alleged purchases ? He did consult him, but not professionally. No evidence of grave and serious disputes. 6. Did the defendant, in or about the month of May, 1879, offer to sell all his interest in Whataupoko for £40,000 to the Native grantees, agreeing to give time for payment to enable the title to be cleared and money to be raised upon the land itself ? The defendant did offer to sell for £40,000, but no terms Aere arranged. 7. Did the defendant subsequently break through his agreement on the ground that it was riot in writing ? There was no agreement. 8. Was it agreed subsequently by a memorandum of agreement between the defendant and William Lee Rees for the Natives would agree to give £47,500 for all the defendant’s interests in Whataupoko to be paid within three years without interest, the money to be raised upon the land ? And did the defendant agree to accept, such sum ? No agreement; but the defendant did offer to sell for £47,500. 11. Was the mortgage deed set out in paragraph 10 of the declaration executed in accordance with the intention of all the parties that the plaintiffs should have such time as might be necessary to enable them to obtain a title to the land under the Land Transfer Act, and

to raise the money by sales thereof to the possible advantage for the interests of all the parties thereto ? Not agreed. 13. Did the plaintiffs in furtherance of the arrangements entered into survey a township on a, portion of Whataupoko of about 300 seres in extent, and lay off roads throughout the whole block, and correct the external boundary of the whole block, and lay off suburban and rural sections of the flat lands at the expense of nearly £lOOO, and make arrangements for the sale of such lands in the month of May, 1881, provided that a title under the i Land Transfer Act could be obtained for J which application had heen made, and a bridge over the Taruheru River be constructed that date, and -were advertisements of published in Gisborne and throughout New 1 Zealand, and was a contract for the construction of a (bridge let by the plaintiffs at a cost ' of £2OOO to connect the township so surveyed as aforesaid with the town of Gisborne, a condition being that such bridge should be crossable in May next ensuing ? And were tenders called publicly for this work with the full knowledge and consent of the defendant, and his solicitor Edward ffraneis Ward, Esquire, junior ? The plaintiffs did perform works and sur-* veys with the knowledge and consent of the defendant.

15. Did the plaintiff, William Lee -Rees, on the 18th day of February, 1881, write to-'the defendant’s solicitor, Mr. Edward ffraneis Ward, asking for the defendant’s consent to the land transfer application ? And did the said Edward ffraneis Ward, as Such solicitor consent and write the letter to the plaintiff William Lee Rees, set out in thedeclaration ? Letter admitted ; consent denied. 17. Has the defendant secured an absolute title to 2500 acres of the said block ? Defendant has a conveyance. 18. Will the defendant by exercising his power of sale under the said mortgage, sell or purchase the rights of Natives who had never alienated their shares to the defendant prior to the execution of the Trust Deed P And will they receive no consideration whatever for the subsequent alienation under the said mortgage. No evidence. 20. Has the said deed of mortgage been regarded by all or any of the parties as absolutely requiring the whole of the monies secured thereunder to be paid on the last day of the term ? And has the agreement been regarded as one entered into in good faith for the benefit of all the parties thereto. Not agreed. 21. Does the block contain 600 acres more than was thought to exist at the time of the execution of the mortgage deed. No evidence. 22. Have the boundaries of the various allotments in Whataupoko awarded by order of the Native Land Court, been varied and altered since the mortgage deed was signed with the full consent of the defendant ? No evidence. 23. Have subsequent mortgages been made to third parties with the consent of the defendant ou the understanding that the land was not to be sold till the surveys were completed and the bridge over the Taruheru River completed, and money borrowed by the plaintiffs for the expenses thus to be incurred ? No evidence. 24. Did the plaintiffs in pursuance of these agreements pay off a part of the mortgage money, being in amount £3,500 ? The defendants did pay off a sum of £3500. 25. Did the plaintiffs, relying upon the good faith of the defendant and his consent thereto at all times expressed and implied, sell with the defendant’s knowledge and consent a small and valuable portion of the land ? No evidence. 26/ Have the plaintiffs surveyed and cut up the said land for sale, and constructed public works, and applied to obtain a title for the said land under the Land Transfer Act ? Yes. 27. Have the plaintiffs at the request of the defendant and in pursuance of previous arrangements agreed to relinquish their right in and to a portion of the said block containing 1400 acres, called Grey’s or Westrupp’s, for a consideration of £5OO ? No agreement. 33. Have the moneys secured by the said deed of mortgage or any part thereof, been paid by the plaintiffs to the defendant ? £3,500 has been paid, and no more.