R. M. COURT, GISBORNE.

Poverty Bay Standard, Volume I, Issue 108, 17 April 1884, Page 2

R. M. COURT, GISBORNE.

(Before J. Booth, Esq., R.M.) YESTERDAY. REMARKABLE CASE. A. M'DONALD, M.H.R., V. P. HARKER. On resuming at 2.ls,—Captain Tucker continued his evidence—l have the the receipt in my possession of the £223. The date in my cheque-book is the 12th February 1884. Mr. Braescy deposed—(Letter No. 10, produced)—This was an authority for me to act for Katarina in the Native Lands Court in certain blocks which came before it, and in which actions were taken in the Supreme Court. I was retained by Katarina to watch her interest, and having interviewed Mr. Rees and Captain Tucker I came to an arrangement. Being satisfied I settled the matter, Katarina has received all annuities she is entitled to up to May 1884. The receipt signed by Brassey A Fraser is dated March 31st 1884. Katarina received £lOO for her interest in Whataupoko; through me. I had authority to act for her. To Mr. Kenny—The annuity to May 1884 was paid in advance, as that brought it up to a definite period. The receipt was made after the money was paid. I signed the receipt for the purpose of this action, so that I need not appear, as I wished to go away. I had no talk with McDonald on the matter, except the other day when he told me some remarks were cast upon it by Mr. Kenny. P. Barker deposed—l remember being in Mr. Ward’s office when a conversation took place about Katarina’s claim. Mr. Ward, myself, and son, were the only ones present. Mr. McDonald came in. This was before the case Katarina v, McDonald came on. McDonald came in, and asked to look at a deed. Mr. Ward gave it to him out of my box, and he looked at it, and said the fabitch had been settled with. This expression had reference to Katarina. (Deed of conveyance to Rees and Wi Pere, trustees, from Barker, No. 16.) This deed was executed about 19th March, 1879. It was long after 1879 that I myself signed it. I first heard of this claim from Captain Tucker. Mr. Rees wrote me a letter about it. I subsequently sold to the Land Co. I received Katarina’s share for £2OO in Whataupoko, paid by McDonald. The cheque went in on the 14th May, 1877. After this was bought McDonald wrote and told me that he had bought all Katarina’s interest in other blocks for £l,OOO, which I made arrangement for. His next letter, he said instead of giving £l,OOO he had arranged to give £l5O a year as she was an old woman and would not live long, and in the end it would not amount to £l,OOO. Soon after I came up and saw McDonald, he told me that the deed was made out in Tucker’s name. He said that Tucker would transfer it to him. and he would then transfer to me. I spoke to him several times and he said he had given it back to Riperata. Things were then going on very crooked up here, and the banker told me that I had better clear him (McDonald) out or he would ruin me. We then dissolved. I got Katarina’s share upon the agreement of paying the annuity. I did not know who Katarina Kahutia was. I thought they were different people, and not one. Mr. McDonald kept me in the dark. The order for £7l 10s. to Mr. Berry, for Katarina, was honored, and another for £75. By the deeds of partnership I was to get two thirds of the profits, but I did not. I did not hear that the £2OO went in annuities. lam anxious to get advice to see if these matters should not be brought before the Supreme Court. I was willing to defend the case brought by Katarina. To my surprise I found McDonald had settled the action. I instructed council to appear on my behalf. To Mr. DeLautour—At the time of the dissolution I knew nothing about Katarina. The dissolution was in April 1878. I never heard that Riperata was going to take any of the land back. 1 was evidently kept in the dark. In 1879 I used to write to McDonald. That is my letter of the 21st May, 1877, in which I ask him to keep the shares in Makauri and other blocks unless Riperata required them. I might have written that in reply to something mentioned by McDonald. I have been misled. I remember when McDonald was locked up all night scheming with Katarina. That is my letter of June 15, 1877. I knew the sisters’ shares (Katarina and Riperata) were the ones that were bought, though I was not aware that Katrina and Kahutia were one and the same person. When McDonald was purchasing these shares. I received letters telling me that my interests here were being trifled with, therefore I came up here, and found he (McDonald) had five or six racing horses, with a man to look after them, and oats at Bs. a bushel. Also a married couple in the house, with another married couple to wait on them. When we dissolved partnership I made complaints of my treatment. We did not then agree on these shares. Mr* W. W. Wilson accused McDonald of keeping them back. There was only one question that was referred to arbitration when we dissolved. These shares were not referred to arbitration because McDonald told me he would give me two-thirds when he secured them. I told him to give me half and settle it at once, but he refused. When I signed the deed (produced) in 1878,1 did not know what I was doing, I have not paid anything covenanted by the deed. I executed the trust deed in 1879. A greater piece of rascality was never perpetrated than the £l,OOO worth of land in the Whataupoko. Mr. McDonald managed the work for the firm, and he did it nicely. I was then attending to my own business in Dunedin. It is really impossible to say what he got out of it. His travelling expenses came to God knows how much. There was £l5O to Auckland, £l2O to Wellington, and so on, with a nice faddy of attendants. I took McDonald by the hand, and he has turned out an ungrateful son. I have lost a good deal by this Whataupoko affair. I have lost my health. I was to get £45,000 for my interest in the block. That is the amount mentioned in the deed, but I had to wait five years for it, and then it cost me £B,OOO, and have not received much of it yet. The bills had not been paid. I have done a nice thing by coming to Poverty Bay. Katarina’s was one of the interests that bought me out, and it was part of what I sold. She has had nothing but the £2OO for her interest from me.

To Mr. Kenny—Katarina did get other money beside the £2OO, for I gave her orders for £7l 10s and £75, which were honored. I never paid anything of the annuities, as I understood the trust deeds got rid of them. A group of deeds were executed at the time of the trust deed, to get at the date of the execution of which, I rely on Rogan’s bill of costs and his letter. The deed was signed about the 18th March. To Mr. DeLautour—l don’t think I saw the trust deed until I did so in Mr. Ward’s office. F. Barker—l am the son of the last witness. I was with my father in Mr. Ward’s office when McDonald came in, and asked for a deed, which Mr. Ward gave him out of my father’s box. He looked at it, and made use of the expression already stated. When he was there very little was said about Katarina. I don’t know what made him make use of the expression. This concluded the evidence for the defence, and the Court adjourned until 10 o’clock the next morning. THIS DAY. Mr. Kenny, said—l am sorry that I shall have to consume a good deal of your Worship’s time this morning, in order to do justice to this case. The necessity will arise in so much from the intrinsic complexity of the case, though it appears to be very formidable. The case is very simple though important, and all the points lie in a nut-shell. The propositions which I shall lay down are very simple, and perhaps self-evident. It will be requisite for me to support these points, and to quote many authorities. The actual argument itself is very simple.

I-s propose to put it as lucid as I can. The main heads of my argument, then I shall follow that up by supporting each of the propositions I lay dowu by appropriate quotations. (He here explained how and why the action was brought according to the information,) The action is based upon, from the plaintiff's point of view, entirely Upon two deeds, the deed of the Bth June, Tucker to McDonald, and the other in July, McDonald to Barker, This is not the case of a guarantee, it is not the case of principal and surety; it is not the case of covenant on the part of McDonald. Katarina does not in anyway come into this action. It is simply between Mr. McDonald and Barker. The former was liable to pay the annuity, but, on account of certain arrangements Barker says to McDonald, I will indemnity you from the payment. There is no gurantee to Katarina, and therefore she has no action whatever, and can have none, therefore the contract is not a contract of guarantee. Now the propositions I have to lay down are these -—the language of the deed of the covenant containing the covenant to pay Katarina this money is as follows: —Speaking of deed No. 2, Sth June, 1877, the covenant is contained in the latter part, which I will quote. (Deed quoted.) Thus it will be seen that this, really, is not a direct covenant, in the first instance, w with Katarina. It is a covenant with Tucker. I wish to draw attention to this deed. In it is the insertion of the word “ assigns.” It is the duty of the Court to construe the deed giving effect to every word in it, and must elliminate no part of it. Every technical word should be construed in the sense in which it is understood by lawyers, in its legal sense. Otherwise the Court will be averting its duty. When deeds are drawn by special conveyancers and technical words are used, I submit that there legal meaning is meant to be taken. I contend that the insertion of the word “ assigns ” had a certain meaning. For supposing Barker parted with his interest in the land then immediately the /assignee of McDonald would become liable ’and so on the chain would be kept up. The fact of the transactions is this, that instead of Katarina receiving the money down in a lump sum as consideration for the land, she received what was really permanent rent for the remainder of her natural life. I shall show that the boundary line between the annuity and th e rent charge is so fine that it disappears altogether. By inserting the word ■< assignrs ” the parties preserved the vendors . lien. It was intended that that should be the case. The vendor was in this position, that she had an equitable lien upon this lien as against any a’signee, and so far as she had an estate in the land. Supposing the annuity was not paid the Supreme Court could be resorted to, and the money could be recovered there. But something happened, it was this, the vendor had parted with fee simple in the land, and the only thing she had remaining in the land was the rent charge upon it, — this equitable lien—this annuity. Now what does the vendor do ? On the 23nd June, 1878, a certain deed was made, by which Mr. Barker became the purchaser of this land, and he conveyed it to Messrs. Rees and Wi Peri all his intereit and estate in it, as did a number of other natives, who had interests in it, and who, therefore, became parties to it, and amongst others this woman Katarina. (He now read the deed). it This deed was executed by the ninety difierent dates. Now the vendor, Katarina, parted with the fee simple, and had only the rent charge left. Therefore I submit all she had to convey was that charge. Left Sitting.