SUPREME COURT

Rangitikei Advocate and Manawatu Argus, Volume XXXIV, Issue 9378, 23 February 1909, Page 5

SUPREME COURT

Press Association

Palmerston N., February 23

The case of E. V. Hussey (Mr Collins) v. John K, Miles (Mr Cooke), and the Registrar of the Supreme Court at Wanganui, was heard yesterday. The facts set out by Council were briefly as follows : The plaintiff , Hussey purchased a property of 278 acres at Makirikiri, near Marton, from one Eelf, for £4161 10a, paying £197 in 'cash, assigning a leasehold to Relf and taking over a mortgage to Fullerton - Smith and Miles for £3338. He thus paid £823 for the equity of redemption, £620 of which was by way of Relf had purchased the property from Fullerton-Smith and Miles for £3915. On the suggestion of defendant Miles, plaintiff raised £ISOO on first mortgage from the Government Insurance Department, and gave a second mortgage for £I9BB to defendant Miles. The defendant prepared both mortgages, and that to Miles contained a provision that the mortgagee could exercise his power of sale immediately on default in the payment of interest, without notice to' the mortgagor. Plaintiff alleged that the defendant Miles did not inform him of this clause in the mortgage, while Miles stated that plaintiff had ample opportunity to read the mortgage before signing it, and that trie mortgage to Relf contained precisely the same power of sale. Plaintiff farther contended that when he bonght the equity -of redemption from Relf, he was not informed by his solicitors of this provision in the mortgage. Defendant admits that no interest was due on the first mortgage, but on the second mortgage— to Miles—the interest due on the Ist May, 1908, was’not paid till October 19th of that year, and that iu regard to the instalment of interest due to November Ist, plaintiff had offered to pay by a promissory note, hut defendant refused to accept the endorsees. On January 11th, defendant instructed the plaintiff of his intention to sell the property through die Registrar of the Supreme Court unless the amount of the loan wa? paid off. The property was duly advertised for sale. Meanwhile plaintiff paid all outstanding interest without prejudice to the mortgagee’s right of sale. Mr Collins contended that in respect to the default defendant had no right to sell the property, and in case of future default, the defendant Miles, would have the right to sell the property if the default extended over three months.

After considerable legal argument, hia Honor reserved judgment.