AN IMPORTANT DECISION IN BANCO.

Poverty Bay Standard, Volume X, Issue 1176, 16 October 1882, Page 2

AN IMPORTANT DECISION IN BANCO.

The following is the decision in the appeal case given by His Honor Mr Justice Richmond :—' REG. V. PRICE, EX PARTE COLEMAN AND ANOTHER V. DONAHOO AND OTHERS. This was a rule calling upon Matthew Price, Resident Magistrate at Gisborne, to show cause why he should not hear and determine tlie above case in his Court, in which lie nonsuited the plaintiffs, on the ground that a question ot title to land was involved. The affidavits filed in support of the rule show that the plaintiffs holding a certificate of title under the Land Transfer Acts took out a summons against the defendants in the Resident Magistrate’s Court for £lOO damages for trespass upon the land of which it alleged that the defendants held possession. The land originally belonged to one of the defendants, Mere Ti Punu and others, but it was alleged that she had sold her interest to Captain Read, who brought the land under the provisions of the Land Transfer Acts. The plaintiffs are the trustees of Captain Read’s estate. Before the Magistrate, the only evidence given for the plaintiff was the certificate of title and proof of the damage done. Mere Ti Punu, for the defence, alleged that she had never parted with her interest to Captain Read, and never executed any conveyance ; upon this and upon production of a copy of the Crown grant the Magistrate held that a bona fide question of title to land had arisen, and, while saying he had no jurisdiction to adjudicate on the question, nonsuited the plaintiffs. Mr Izard moved the rule absolute, the grounds being—(l) that no question of title had arisen, (2) that the evidence of Mere Ti Punu did not raise a question of title. Mr Forwood on behalf of the defendants except the Magistrate, contended that the rule could not be made absolute, because a question of title was bona fide involved. Jones v. Ashton, 4, N.Z. Jur., N.S., 103; Chew v. Holroyd, 8, Ex., 249, S.C., 22, L.J., Q. 8., 124; Proudfoot v. Banbury, Mac., N.Z. Rep., 1060. It will be contended on behalf of the defendants that the certificate of title is conclusive evidence of title, and the Land Transfer Act, 1870, Section 46, will be relied on; but it will be seen that the right is not unimpeachable. For instance, fraud may be set up ; now here the allegation of the defendants amounts to fraud. (Mr Justice Richmond : It appears from Donahoo’s affidavit that the defendants were in possession before the supposed sale, and never ceased to occupy the land as of right. A scintilla of right ie enough ; R. v. Turner, L.R. 5, Q.B. 237. The magistrate having nonsuited, the proper remedy was by appeal.) Mr Izard, for the plaintiffs: The question of the title must not only be bona fide but also must be reasonable. There can be no reasonable question of title here, as the certificate of title prevents that, as that certificate cannot be questioned in such an action as this. (Mr Justice] Richmond : What can a person who has really never signed a deed do ! If he swears he never signed a conveyance, does it not raise a question of title!) Not in the face of the certificate!; that must be attacked otherwise. (Mr Justice Richmond : You have to make out your ease. I must assume that the magistrate was right till he is shown to be wrong. He could only give judgment to the plaintiff in case of a clear trespass without title.) A mere assertion of title is not enough. Ellerslie v. Barnett, 4. C.B. N.S. ; Everslie v. Newman, ibid 318. Elderton v. Rhodes, L.R., 4 Q.B. ; Liddy v. Harvey, 17 L.J., Q.B. ; Royd v. Jones, ibid C.P., 206. His Honor, in giving judgment, said : I felt considerable doubt in granting the rule. I have come to the conclusion that there was not sufficient material to justify the Resident Magistrate in deciding that he had no jurisdiction. He should have required a circumstantial denial of the plaintiff’s title. It is not enough to take a simple denial. All he had before him were the three facts, viz., the grant, the possession by Mere, and her denial. These were not enough. I do not think that, assuming her to have been a grantee, it is enough that she should simply deny that she conveyed. I say nothing as to the other points either as to the legal or the substantial merits. Rule absolute ; costs against the defendants in the original case.