SMITH V. ESSERY AND BROWN.

Temuka Leader, Issue 2058, 12 June 1890, Page 3

SMITH V. ESSERY AND BROWN.

In this case Judge Denistoun gave judgment last Tuesday morning. The following report is taken from the Lyttelton Times;—His Honor gave judgment in this case, saying that the; admissions of defendant Essery at the trial entitled the plaintiff to a decree against him. The action as against the defendant Browni wasin effect for a declaration that certain purchases by him from Essery, the trustee in the estate of Edward: Smith, were fraudulent, being made with a knowledge that they were made in breach of the trustsof the wilL Ibe defendant Brown relied on Section l ll9 of the ■' Land Transfer Act, 1870,” which* enacted that no person ; contracting shall be affected by notice, direct br constructive, of any trust;or unregistered interest, arlyrule of law or equity ■to the contrary notwithstanding, and the knowledge-o£.sucfiJ.Cim&i'. iQf unregistered interest, is. in existence, shall not of itself be imputed as fpaud. lathe National Bank v. the National Mortgage and Agency Company, it’ had been held by Mr Justice Richmond that the protection of this section did not extend to a case of absolute fraud, Brown had stated that he v believed that the sons of Smith bad no beneficial interest in the property, but that such interest was in Smith’s widow, who had. married Essery, and that any dealing with her concurrence was warranted by the trust. What little outside evidence there was was rather in favour of Brown, whose explanation was not an unnatural one. The evidence did not satisfy his Honor that Brown had been guilty- of the fraud and perjury, proof of which would be required to justify declaring the transaction void. Judgment would be for. the defendant Brown, with costs on the middle scale, disbursement's and witnesses’ expenses, and for a decree against Essery as~' prayed. r ; -if . i