SUPREME COURT, CHRISTCHURCH.

Temuka Leader, Issue 2038, 26 April 1890, Page 2

SUPREME COURT, CHRISTCHURCH.

Wednesday, April 23, 1890. (Before His Honor Mr Justice Dennistonni^* SMITH Y, ESSERY AND BROWN. In this case William Waimate Smith was plaintiff, and William Essery and Job Brown defendants. The statement of claim a'leged that Edward Smith doceased, by will bequeathed all hi s real and personal estate to William Bush, in trust to pay the income thereof to his wife dur! ing her widowhood charged with the maintenance, education, and bringing no of his children, and after her decease or remarrying in trust for all his children. The wife of ihe testator and Wm. Bush were appointed as executrix and executor of the will. Probate of the will was granted on January 15th, 1876, and on the6:h April, 1876, the widow married defendant, William Essery. The estate of the testator consisted of personalty and realty, and he was possessed at the time of his death of certain lands at Winchester and Geraldine. In August, 1877* upon ihe petition of William Bush; the defendant, William Essery, was appointed the trustee in substitution of William Bush. Shortly after the making of the order Widinm Bush transferred to the defendant Essery the whole of the outstanding personal estate ef the testator, consisting of certain, mortgages, but the real notate of the testator, including the land referred to, remained vested in Wm. Bush. The statement further alleged that the defeadant Wm. Essery bad calied in the whole 1 of the mortgages and invested the moneys arising, or some part therefor, in the purchase of certain freehold properly at Terauka. .That the defendant, William Essery, in or about the years .1883-1884 wrongfully procured himself to be rng : * tered as proprietor under the Land fer Act of the land at Winchester, &c, and, on August 14th, mortgaged the land j to one Job Brown, which, mortgage was ) foreclosed, and a new certificate of title issued to Brown. The defendant Essery transferred the land purchased by him out of the estate to Job Brown for €225 and it was alleged lhat the defendant Essery was largely indebted, on hia own private account, to Job Brown, and that . the property was valued at.£soo. The defendant Brown, had notice, at the date of the transactions mentioned above, that I the lands formed part of the estate of Smith, deceased, and were subject to the , trusts of the will. The plain tiff; therefore prayed—(l) That the defendant, Wm. ■ Essery, be removed from the office of i trustee, and that some fit person be ap- ! poised. (2) That the trust estate may be administered under , the direction of the court, and that accounts -be 'taken, i (3) That the defendant, Job Brown, bo . ordered to give up the certificates' of title ■ to be cancelled, or that he be . ordered to i transfer the said land to trustees, to bo : appointed, free of encumbrancer (4);That i an account be taken of the rents and ; profits of the said lands whilst in the possession of the defendant, ,£ob Brown, and that he be ordered to pay the amount thereof to the new trustee. .The defence of Job Brown admitted certain allegations of fact in the statement of claim, but danied that the defondaat, Wm. Essery, acted wrongfully in procuring himself to bi registered as proprietor of the land therein mentioned. It also admitted that at the dates of the transactions mentioned the defendant had notice that the land! mentioned therein formed part .of the estate of Edward Smith, deceased, bat alleged that he had no knowledge of the nature of the trusts of the will of Smith, deceased, or of the fact that the transao- : tions entered into by the defendant Esslfe. : constituted breaches of trust, but believed that Essery bad full power and authority : to act and deal with the lands, Mr Stringer for the plaintiff, Mr balmond for the defendant Job Brown •

) the defendant Essery appeared in person, ' Mr Stringer opened the case for the plaintiff, acd called evidence. William Essery, one of the defendants, deposed as to becoming trustee in the estate, and also as to the defend »nt Brown advancing him certain money, and that ha tnen induced witness, much against his will, to sign' a transfer of Hie Winchester property belonging to the estate, on the condition of an endorsement being put on it that witness was to h-vo the difference between the sum of £225, for which he sold it, and the amount realised, if it was at anytime sold by the def-„dant Brown Wttnes never got any money when he signed the transfer. Later on witness , gave Brown a mortgage over the Go aldine property for £9O. Witness left Brown as his agent to collect the rents of • tha property, and when ho cama back Brown said he could not collect any rent and that witness must give him a . morll gage. Witness said he knew th it was wrong, and ho wou'd not do if. B-Own told him that no one should know it—not even the banker— and by his persuasive powers witness was indue-d lo sign the mor’ga<r e Witness told Brown that he knew that°it was wrong to mortgage fust lands, and ha was so uffectad that he shed tear*. When witness was first appointed trustee there him° h*T ° f trust J mone y P«d in to * h m He had never rendered any account ° f WlleQ he down raised £IOo2 *“ '°° k Uf> ,and * having ra sed £IOO9 on mortgage over the Tomuka property, and this money was lost. In cross-examination by Mr Salmond* the witness slated that he was wtf'T 6 . Umt Wlien 1,6 lu «fied Mrs Smith the trust property we m fpoin her to the children. Witness could not sav whether the deeds of the Geraldine properly were deposited »i.h Mr Brawn as security for paying out an execution put into w.tnesse s store by Caro and Co. ?£ Bbowo ' l witness the deed of the Geraldine properly, and on the witness expressing surprise at this. Brown said that Austin had given him the H Sa * Vy, A W ' fe t 0 tha defendant Rn°f y ’ aa to the removal of Bus t and the appointment of Essery as trusiet. Witness detailed the oinfumstances attending the advance of £2OO by ' the defendant Brown (o p«y off a debt due Essery to one George, Clifl. Brown subsequently came to witness and asked nnt °V r j eed ? of the estafc, > he wa£tff not satiefiad with (he security he lia(L Vt itness told Brown that Mr Austin bad Amuin' 5 ** 8 ’ Bn . d he offdrad t 0 g flfe ‘hem from deed! p Bbe ° Ughfc t 0 1,01(1 her own told he. TT 0 *? n6Dt t 0 C h.istcburch, but re-idv h /ti had not got the deeds Said "“£° ’™ ,ld them. Wit-

to t&ke the bouse they were living in, which was the property of Essery, but he would not. When Brown got Essery to sign the transfer he told him no one should see itj and the property would be redeemable at any time. Witness told Brown twice or three times that the pro.perty belonged to the children, She did not know how Brown got the deeds he did from Austin. ' In prose-examination bj Mr Sal mood, the witness deposed that the defendant Brown went to Christchurch to get the deeds pf .the Geraldine and Winchester properties, so that she should have them, and not as further security for the money he had advanced to her husband. Witness

, " did not consent to the transfer of the - Winchester property (o defendant Brown. Witness objected to Easery signing the transfer, as it was not right to meddle with the t.rnst properly belonging to: the children. Witness received the rents of the shops in Temuka belonging to the children and had not kept any account of it. They moved to Southland for the ; benefit ef the children. H. Baxter, oleik in the Land Transfer Office, deposed to the office copies pro- ' duced of transmissions in Edward Smith, - Mr Austin acted as solicitor, and bad the probate of the will. J Mr Strioger put i.i a number of formal .documents in the case. This closed the plaintiff’s case. Mr Salmond, for defendant Job Brown, opened the case for the defence, which was that Brown had been led to believe ” that Mrs Essery was entitled to deal with the property, and to pledge the property as security for the money actually advanced by Brown. It had been arranged between his learned friend, Mi Stringer, and himself, that the facts only should be got out on this case, leaving the law points to be argued hereafter. Job Brown, one of the defendants, deposed that in Februasy, 1883, Caro and Co. put a bailiff into the shop of Essery, and Austin came down to witness’ house to ask him to help Essery by advancing money. Austin told him that if he would advance the money they would give him the deeds of property at Geraldine as security. Next day Mr and Mrs Essery and Mr Austin came again to witness’ shop, and witness subsequently agreed if he could make arrangements with Mr Caro and (hey deposited the deeds with • him, he would advance the money. They agreed to ibis, and the deed was brought to witness. He subsequently gave Caro a promissory note for £23 odd and cash for the costs. Witness knew that the land comprised in the title deed deposited with him was part of the trust'estate, but he thought that whatever Mr and Mrs Essery did with regard to the property was right. . Witness had’no knowledge of the terms . of the will, and had no security but the deed. In August of the same year George Cliff put in a bailiff for some £250. Mr ■ and , Mrs. Essery came (o witness and asked him to help them. He agreed to do so if they transferred the Winchester property to him. They agreed to do so and Mrs Essery did not make any objection. Neither Essery nor Mrs Essery told witness that the property belonged to the children but they led him to belive that they alone had power to deal with the property. Witness never had any reason to believe the contrary. Witness gave Cliff a three months bill for £IOO and a bill at nine months for £l6l, or a total of £261. These bills were met at maturity, Mr and Mrs Essery told witness they had not got the deeds, but that they were in the hands of Mr Austin in Christchurch, and witness told them r that he would go and see it the deeds could be got into his own hands for . security. He never offered to get them for Mrs Essery, and she knew that he was going to get the deeds as security for the money advanced by him to pay out the bailiff put in by Cliff. He saw Mr Austin in Christchurch, who told witness the deeds were in the Government Buildings, and would be all right. This was on the 17th August, 1883. Suubsequently witness received the deeds from Austin, and told Mr and Mrs Essery that he had, been Peking to transfer the Winchester pro-perty,-in accordance with the agreement at the time when the advance was ' made. They objected to the transfer, as the consideration money was not sufficient. Witness put the price at £225, the Esserys wanting £3OO. Ultimately the transfer was signed. With regard to the Geraldine property, witness got Essery to mortgage it to him to cover £93 which was owing to him. Neither Mr nor Mrs Essery ;pbjected, and witness had no reason to ■bblidye that it was a breach of trust, h¥l. spent a good deal of money on the Winchester property in improvements.' ...Air- Austin never informed th*se transactions were illegal. .In .cross-examination by Mr Stringer, the witness - deposed that he knew Mr Efsery had become trustee under Smith’s wiil-ih place if Bush. Witness never had ‘ apy conversaiion with. Bash as to the trusts of-the will. 1 Mr and Mrs Essery never asked witness to, take (heir own property as' sbdurity instead of that bethe" trust, estate, When wit- - 1; ness got the deed of the Geraldine property in the name of the decaased Edward Smith he did not m»ke inquiries as to the will because he thought that Mr and Mrs Essery could deal with the property. He did not know how hie came to get this belief, but he did not make enquiry on the subject either from Mr or Mrs Essery or from Mr Austin. Mr and Mrs Essery did not object to signing the transfer on that ground, but merely because the amount, £225, w«s net enough, as they considered , 1 When witness retu ned from Christchurch.ho did not tell Essery that it was necessary to have the property transferred in bis name as it was in the name of Edward Smith. Witness knew that Smith had left children, but made no inquiry as to wdeiher they h*d been lef’ anything under the will. He looked at the matter in the light thit ¥r and Mrs Essery werg bringing qp the children, : keeping them and feeding them, and they hip! a right to deal with the property as their own, no nutter what the will said. Witness up to this time had never been a trustee. Witness did not look upon the debts named by Essery in Cowie and Cliff’s cases as private debts, but rather incurred for the benefit of the children. The security in Cdff’s case was handed to witness. This was composed of tx-o leasehold sections. The deeds were simply handed over, and not transferred. Witness never knew that the children ever had any interest in the propeity. Mr Salpiond put in some letters passing between Mr Brown and Mr Austin, and eloied bis case.

Learned connse' having addressed the Court at Considerable length, His Honor took time to consider.