NATIVE LAND COURT.

Poverty Bay Standard, Volume I, Issue 9, 15 November 1883, Page 3

NATIVE LAND COURT.

(Before His Honor Judge Brookfield and Native Assessor,) Important Judgment. His Honor Judge Brookfield delivered the following judgment in connection with certain land transactions between Katarina and Captain W. H. Tucker, J.P., and Mr Allan McDonald, M.H.R. His Honor said Mr McDonald had not complied with the wishes of the Court in this matter, and then proceeded to give judgment in the following words :— This is a case in which Captain Tucker claimed to have the interest of Katarina vested in himself, with McDonald and Riperata, as trustees for Katarina, and it presents some rather curious features. When this application was first made on the oth of October last, Captain Tucker stated that he claimed under and by virtue of a deed dated in 1878 (which was not produced at the time) but which he alleged was a conveyance from Katarina to himself, M‘Donald and Riperata, upon trust for the payment of an annuity to Katarina for life, and after her death to convey the properties therein mentioned to Riperata and her children. This deed appears to have existed only in Captain Tucker’s imagination, though we acquit him from any intention of misleading the Court in making the statement he did. The real state of the case turns out to be as follows . —Katarina having quarrelled with her sister, Riperata, appears to have desired "to get rid of al! her properties, so that her sister or her children should have no chance of obtaining any share of them. Tucker then, in the interest of all parties, induced Katarina to convey everything to him, which she did, for the consideration as stated in the deed of £l,OOO. This sum Tucker says was only intended as a nominal consideration, and the deed, though very inartistically drawn, was intended to operate only as a trust deed ; and he further states he would not have parted with any part of the property without the consent of Katarina. We see no reason to doubt the Lona fides of Tucker in this matter, and think that his statement is borne out by the fact that he did not attempt to make any profit out of t he transaction. But when he was requested to convey the properties he had acquired, to McDonald, he did so without demur. The

i next step in thia matter Is the conveyance by Tucker to McDonald, which we presume is brought forward in the interest of McDonald, and as a proof that neither Katarina nor any persons as trustees for her have any t itle to a share in Taruheru—such share being included in the conveyance new under consideration, and the consideration in that deed is somewhat peculiar, being an indemnity to Tucker against the payment of the £lOOO consideration mentioned in the former deed, and a covenant with Tucker to pay Katarina an annuity of £l5O during her life, which appears to us to be anything but a good consideration moving to Katarina, However at a subsequent aate McDonald does by deed, covenant with Katarina to pay £l5O per annum during her life but this annuity is only secured by tne bare covenant, there I is no security by way of rent charge, or otherwise for the due payment of it, and it is stated on oath by Katarina that in fact the annuity has not been regularly paid, and that the only amount she has received is about £35, This statement is entirely uncontradiated, though ample time has been allowed for the accounts to be made out, That the annuity has not been paid is, we think, evidenced by the fact that KataHna has been induced to take proceedings in the R.M. Court against McDonald for the recovery of £lOO being arrears of annuity alleged to be due upon Whataupoko. This block having apparently been absolutely sold by him to Tucker for the sum of £2OO, ! which she says she received, and no annuity being payable to her in respect of her interest in this block. This action we think has been brought solely iu the interest*. of McDonald, and without the effect of it having been explained to Katarina. Whoever advised her to bring this action while the validity of the annuity deed was under consideration by this Court is, in our opinion, deserving of the gravest censure, seeing that the result of that action, if it had been allowed to proceed would have prevented Katarina from further disputing the validity of the deed in this Court, and would have further prevented her from prosecuting any claim for other arrears of the annuity and would have operated as an admission on her part that the £2OO consideration money paid for Whautopoko was to be taken as a part payment of the annuity covenanted to be paid to her. The next proceeding in this case is a conveyance from McDonald to himself, Tucker, and Riperata of certain shares in Makauri and Matawhero upon trust, not to pay Katarina anything, but to pay him (McDonald) £6O per annum during Katarina’s life, to pay the balance of the proceeds of the land to Riperata, and after Katarina’s death to rcconvey the property to Riperata’* children, and it would seem’that it is by virtue of this deed that Tucker thought he was entitled to make this claim

Had the application been made under the Act of 1873, it would have been for an order of freehold tenure and this Court would have been bound to have enquired into the fairness and justness of the transactions and whether the whole purchase money had been paid, and now that the application is under the Land Division Act, 1882, for an order for a Crown Grant, or Land Transfer, certificate to issue, we feel bound to make similar enquiries, and we are of opinion that the consideration set forth in the deed to McDonald has not been paid and has failed, and that the transaction was not fair and just, We shall, therefore, order that a land transfer certificate shall be issued to Katarina for 16 acres 3r. 62p. and that such portion shall adjoin the land already awarded to Tucker, and that it shall be inalienable. The order already made in Tahoka on the Sth October must be amended in accordance with this judgment.