Poverty Bay Standard. Published Every Evening. THURSDAY, SEPTEMBER 21, 1882.

Poverty Bay Standard, Volume X, Issue 1153, 21 September 1882, Page 2

Poverty Bay Standard. Published Every Evening. THURSDAY, SEPTEMBER 21, 1882.

Not very long ago there appeared before the Resident Magistrate of Gisboi'ne, acting in his dual capacity of Trust Commissioner, one Mr. Philip Bond, who by his attorney Mr. Robinson then and there applied to have certificated, or fraudulated, as it is now termed, a lease by one Wi Haronga to him, Philip Bond, of a certain undivided share in Matawhero No. 1, where Mr. Bond was actually residing, and was the undoubted occupier of the laud in question. Opposing Mr. Bond’s application before the Trust Commissioner comes the solicitor for that most wonderfully elastic property Read’s estate, who under certain agreements entered into with Wi Haronga in that estate claimed all right and title to the lease which Mr. Bond was applying for. The Trust Commissioner refused to entertain Mr Bond’s claim, saying “ I decline to grant you a certificate, and shall at once issue a certificate for Read’s Trustees.” To this Mr. Robinson strongly demurred; telling the Trust Commissioner that he was wrong in law and equity, to which the sapient gentleman rejoined that an appeal was open to his client. Mr. Robinson finding remonstrance unavailing withdrew, and in due course appealed to the Supreme Court against Mr. Price’s decision. This appeal was heard in Wellington before Mr. Justice Richmond, whose decision we give at full length, as being of the highest importance to residents in Poverty Bay. It is as follows : — “ On this appeal it was not disputed at the Bar that the appellant had a locus standi before the Commissioner. It is, I agree with Mr Justice Gillies, impossible to suppose that the Legislature intended to enable the Commissioner to determine the legal aud equitable rights of bona fide claimants under conflicting dispositions made by a Native. At the same time it appears to me that both the former and the present Acts clearly contemplate the protection of third parties from actual fraud. The Preamble to the Act of 1870 recites that there is reason to believe that frauds and abuses are practised in connection with the alienation of laud by Native proprietors: and that lands held by them upon trusts have been improperly disposed of and dealt with ; and that it is expedient to prevent as far as possible the practice of such frauds and abuses. In accordance with a modern practice, which is perhaps no improvement, ths preamble is omitted in the new Act; but there is a provision similar to that contained in the former Act requiring the Commissioner to ascertain whether the alienation be in contravention of, or not in accordance with, any trusts to which the land is subject. Therefore it is quite clear that cestuis-que-trust of the Native who is alienating, or attempting to alienate, are to be protected. The old Act in terms said that implied trusts as well os express trusts were to be regarded ; and the new Act uses language wide enough to include implied trusts; so that on the whole, it is clear that under the present law, as under the former law, alienations contrary to a trust express or implied in favor of third fiarties are not to bo permitted. Therefore t is clear that the duty of the Commissioner is not limited to inquiry into the good faith of the transaction as between the Native alienor and the European alienee. It seems clear, beyond the possibility of controversy, that cestuis-que-trust of the Natives are to be protected ; and it being once allowed that the scope of the Act embraces others than the immediate parties to the transaction, I can see no reason for limiting the construction so as to deny a locus standi as objectors to persons who, though not exactly cestuis-que-trust of the alienor, have prior equitable claims on him of which the alienee has actual notice. To this extent therefore I differ from the decision in the case of Russell v. Campbell, 4, New Zealand Jurist, 19, I observe that the rules of procedure made by the Order in Council of 14th February, 1882, (“Gazette, p. 258), under the powers of the new Aot, expressly provide for the intervention, in the proceedings, of third parties objecting to a certificate. But it seems to me also (and here I quite agree with Mr Justice Gillies), that the commissioner ought to confine himself to questions of equity aud good conscience : so that, for instance, in the too frequent case of a Native selling the same land to successive purchasers, the commissioner ought to give each purchaser a certificate if he finds that the second purchaser has paid his money in ignorance of the former purchase, thus leaving the two to fight out the battle for priority before some competent tribunal. 1 should say the same of a case where there was a bona fide dispute as to some question of fact, such as the time of the marriage of the female grantee in Russell v. Campbell. On the other hand, should the commissioner find that the applicant for a certificate, when dealing with the Native was actually aware of some prior bona fide contract or disposition, plainly inconsistent with his own proposed transaction, a certificate should be refused, the new transaction being contrary to equity and good conscience. “ The present appeal being upon a case stated, I must assume that all the material facts are before me, and I am of opinion that the cose discloses no sufficiceut ground for holding that Bond’s agreement was in anything contrary to equity and good conscience. The Commissioner is said to have decided that the agreement was void i and it was before mo contended by Mr Izard that he was justified in so doing. It was argued that * the agreement was not capable of being ! specially enforced, because no legal lease ■ could be made for an uncertain term such i as that mentioned in the agreement. It 1 results from what I have already said that a decision upon such a ground, was beyond tho competency of tho Commissioner. He was not justified in Betting aside the prior agreement upon such a ground. Bond's agreement ! being regarded as an existing interest, and i bein'' known to Captain Read's trustees, they would in equity and good conscience take i subject to it, such as it was. Therefore I ; think that an ab-udute certificate in their i favor, iw lessees of Wi Harunga’h share in . the whole block, was not justified so far us at present appears. I “ But the case has peculiar circumstances beyond any to which i have adverted, which . make it very difficult to deal with. Bond has not as yet positively established the bona fides of his own transaction. This he can only do by renewing his application for a , certificate. He ought, in my opinion, to be ■ allowed to do this, inasmuch as the ground : of the Commissioner’s former adverse deci* . sioii against him has been taken away by the I revernal in the Court of Appeal of the parti-

tion order made by the Native Lands Court. Supposing that Bond does not apply for a rehearing of his own application within a reasonable time, or fails to obtain a certificate, the Commitsiouer will then be at liberty to certify absolutely in favour of Coleman aud Clarke. Otherwise the certificate should exclude the paddocks affected by Bond’s agreement. As matters stand at present it is impossible for this Court to pronounce a a definitive judgment; and I must remit the case to the Commissioner. The appellant must have the costs of this appeal. ” So we see that Mr Justice Richmond disagrees with the Trust Commiss’o ler in issuing a certificate in favor of Read’s Trustees, and remits the case back in order to give Mr. Bond the option of renewing his application. This is only one of the many instances in which we see the money and property of the heirs to this estate being frittered away in frivolous and vexatious litigation. The matter is becemi ig perfectly unbearable. If Captain Ifa j could a’ e irora h ; s g ve we feel convinced that his very first act would be to oust the men who are so carelessly squandering the money he earned by hiso.vn efforts aud left in trust for his heirs. The Trustees must, and do know, that they cannot possibly affect their legitimate object of farming the estate to the best advantage of its present owre-.s without the co-operat’on of the settlers in this di«..Jct; being, as they are, totally ignorant of Natl ?e waiters which so intimately concern the p -operty of which they are the ostensible guardians. Instead, however, of assuming an attitude of a concilia vO *y nature, they appear to have an unquenchable thirst for litigation and a desire to effect by sheer force what would be much more easily effected by diplomatic courtesy. To work to this end it appears necessary to have four experienced solicitors attached to the estate as a permanent staff. Certainly these gentlemen don’t work for nothing. Besides these professional gentlemen there are others in the employ whose services also cost a little. In plain English the estate is being squandered in useless salaries, to say nothing of useless litigation, to the extent of some four thousand pounds per annum, and yet there is a margin left, however small, for the lawful owners. Wonderful estate ! happy admininistrators ! I unfortunate owners 1 ! ! How* many times this estate has made its bow to the public on the ataga of law, we won’t mention equity, is a question can only be considered by a system of multiplication too deep for our benighted memory. Mr. Robert Cooper, Mere Tipuna, Mr. Bond and others, whose name is legion, can give more definite information on this head than we can ; but this we do know, that it is high time that the legitimate administrator of Captain Read’s estate, for the benefit and protection of the heirs, and to prevent any further squandering of money which the gravely responsible duty of the Trustees should compel them to work to the very best advantage, should assume the reins and place his veto on this apparently endless litigation. Mr. W. Maude is the rightful administrator of the estate, aud an application by him to the Supreme Court would relieve the estate and the many concerned in it from a heavy and disagree* able burden. There are many interesting points of law involved in the decision of Mr. Justice Richmond which we propose going into at length in a future issue. At present our space is too confined to allow us to do more than present the judgment to our readel’s in its entirety, and leave them to judge for themselves of the respective value of the decisions of Mr. Justice Richmond and our Trust Commissioner.