A LAND TRANSACTION.

Wairarapa Age, Volume XXXII, Issue 10124, 21 October 1910, Page 5

A LAND TRANSACTION.

INTERESTING COURT CASE. CLAIM AND COUNTER-CLAIM. An interesting case was heard in the .Magistrate's Court at Masterton yesterday, before Mr. L. G. Reid, S.M., in which Elizabeth Somerville, of Dannevirke, widow, claimed from Robert Krahagen and Arthur W. Chapman, tailors, of Masterton, a sum of £59 os., alleged to be due on the purchase ei : certain sections of land. Mr. C. A. Pownall appeared for the plaintiff, and Mr. P. L. Boilings for the defendants. The statement of claim set out that by an agreement in writing dated the 17th June, 1907, the defendants agreed to purchase Lots 13 and 15, being a subdivision of Section 1, Masterton Small Farm Settlement, for the price of £180; that by deed of conveyance dated 6th July, 1908, the said lands were conveyed and assured to the defendants, being the right, title, and interest of one W. G. Somerville in the land; that the defendants paid to the plaintiff part of the moneys, payable by them under the agreement, but they have since made default in their payments, and are now indebted in the sum of £59 ss. The defendants, in a counter-claim or set-off, denied the plaintiff's claim and the jurisdiction of the Court to entertain it. They further alleged that they entered into the agreement in ignorance of the fact that the title of the vendor, W. G. Somerville (under whom plaintiff claims) was mortgaged for a large sum of money, which fact was concealed from the defendants; that the plaintiff's title was still encumbered by the mortgage, and the mortgagee refused to consent to or to ratify the sale; that the mortgagee had twice advertised the property for sale under his powers in the mortgage, in consequence of plaintiff's default, and declined to recognise the agreement for sale and purchase; under which plaintiff was now suing; that the defendants are, and always had been, willing to carry out the agreement if the plaintiff would obtain the consent of the mortgagee thereto, which the plaintiff was unable or unwilling to do; that the agreement for sale and purchase was void for non-compliance with the provisions of the Statute of Frauds; that the said W. G. Somerville and the 'plaintiff had failed and neglected to comply with the requirements of the Borough Council under the Public Works Act in regard to roading, footpathing, and draining the subdivided land (of which the allotments in question are a part) and are therefore unable to deposit the plan showing the allotments, 'and cannot therefore give a title to the land; wherefore the defendants claimed to recover from the plaintiff the sum of £49 17s. 6d. paid to the plaintiff under the said agreement for the reason that the agreement was void on the above grounds. Considerable, evidence and legal argument was liqard. From the former it appeared that the defendants were willing to pay the whole of the amount owing on the sections, provided that tliev were given an assurance that the title would eventually be forthcoming. It appeared, however, that the .mortgagee refused to release the mortgage. His Worship said he would look into the authorities quoted in connection with the case, and would give judgment later on.