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has had her in her custody since the funeral of her father. I think taking the child away from the custody of her grandmother, and without her consent, was an objectionable. proceeding, even though the child desired to go with her brothers and sisters. The rest of the family, two boys aged sixteen and nine, and two girls aged fifteen and ten, live with the stepmother, who keeps a hotel at Foxton. The child's parents were both Protestants, and the stepmother is a Roman Catholic. The grandparents have means the grandfather

over £100 per year of income, and the grandmother landed property worth £500. The infant's share of her father's estate will not be more than £200. I examined the child as to where she would like to go, though I knew of no case that would allow a girl under fourteen to make a choice of a guardian. See Reg. v. Clarke, In re Race(1); In re Connor(2). The child stated that her grandmother had been kind to her, but she wished to stay with her stepmother because her brothers and sisters were staying with her. I think a residence with her grandmother, who has had her for eight years, and who has carefully attended to her and been kind to her, outweighs the advantages of living in a hotel with her brothers and sisters. Further, her grandparents have enough means to maintain her, and it seems to me, considering the small means left for the children, the strain of maintenance of five children may be too much for the stepmother.

It is not necessary to allude to the question of religious upbringing that has been raised, but that might furnish an additional reason for the order I now make, which is, that the grandmother be appointed guardian of the infant Ada Jane Darvill.

Order appointing the petitioner to be
guardian.

Solicitor for the petitioner (Mrs. Ewington): P. L. Hollings (Masterton).

Solicitors for Mrs. Darvill: Young & Tripe (Wellington).

(1) 7 El. & Bl. 186; 26 L.J. Q.B. 169.

(2) 16 Ir C.L.R. 112.

S.C. 1901.

In re DARVILL

S.C.

IN CHAMBERS.
DUNEDIN.

1901.

February 7.

WILLIAMS, J.

NASH v. KETT.

Practice-Time for Filing Statement of Defence-Time for Trial-Vacation—
Parties not at Issue.

The Code must be construed so that a case shall not be brought to trial before the parties are at issue. A case, therefore, should not be set down for trial before the time for filing a defence has expired.

THIS was an action for money, triable in the ordinary course by a jury of twelve. The writ was served on the 15th of December, and gave fourteen days within which to file a statement of defence, and twenty-eight days for the date of trial. The vacation intervened, and the last day for filing statement of defence fell on Sunday, the 10th of February, and, being thus postponed, fell on the first day of the civil sittings, appointed to begin on the 11th day of February, 1901.

The plaintiff set the case down for trial at such sittings, and by arrangement the defendant moved to strike it out as improperly set down.

F. R. Chapman, in support of the application:

The parties must be at issue before trial. The case will come on at 10.30 a.m. on the 11th, the statement of defence not being filed until later in the day. If the Judge had fixed the sittings earlier after the vacation the defence would not have been due till after the commencement of the sittings.

Sim, contra:

The vacation counts in the time for trial though not in the time for filing the statement of defence, and the plaintiff is entitled to have the case tried at the sittings on the 11th of February.

WILLIAMS, J.:

It is unreasonable to construe the rules so as to force a party to go to trial before the pleadings are closed. The rules cannot possibly be intended to bring about such a result. The case is not properly set down.

Solicitors for the plaintiff: Mondy, Sim, & Stephens (Dunedin).

Solicitor for the defendant: Donald Reid (Milton).

WOODS v. ROBERTSON.

Mortgagor and Mortgagee - Equitable Mortgage — Possession taken by the Mortgagee-Expenditure by Mortgagee on the Land mortgaged-Right to redeem-Allowance for Permanent Improvements—Accounts—Costs.

S.C.
IN BANCO.

DUNEDIN.

1901.

In proceedings to redeem a mortgage the mortgagee will not be allowed December 9. for expenditure on the land mortgaged unless the expenditure is reasonable and effects a lasting improvement of the property; but is entitled to all his costs unless he has by misconduct deprived himself of the right.

ORIGINATING summons for redemption and accounts.

The facts are sufficiently stated in the judgment.

W. L. Moore, for the plaintiff :

The defendant is only an equitable mortgagee, and is not entitled to possession or to claim for improvements: Robbins' Law of Mortgages(1). Even if he had a right to possession he had no right to build. He knew his title was defective: Ramsden v. Dyson (2); Broom's Legal Maxims(3); Kenney v. Browne(4). As to improvements by a mortgagee: Shepard v. Jones(5). The improvements were not reasonable. The mortgagee has no right to improve the mortgagor out of his property, and, if he intends to improve, ought to give notice. There was no notice given in this case. The mortgagee must pay costs; he was asked to account and refused: Sandon v. Hooper (6).

Sim, for the defendant:

The passage cited from Robbins on the Law of Mortgages(1) does not justify the argument founded on it. The mortgagee is entitled to the benefit of the principle laid down in Walsh v. Lonsdale(7); and according to Shepard v. Jones(5) he is entitled to be repaid his expenditure so far as it has increased the value of the property: Henderson v. Astwood(8); Robbins' Law of Mortgages(9); Houghton v. Seven Oaks Estate Company(10). A vacant section in a township would be valueless

(1) p. 797.

(2) L.R. 1 H.L. 129. (3) 5th ed. 402.

(4) 3 Ridg. P.C. 519. (5) 21 Ch.D. 469.

(6) 14 L.J. Ch. 120; 6 Beav. 246.
(7) 21 Ch.D. 9.

(8) [1894] A.C. 150.

(9) pp. 1205, 1206.

(10) W.N. [1884] 243.

WILLIAMS, J.

S.C.

1901.

WOODS

V.

ROBERTSON.

without buildings, and if the mortgagor had been in possession he would have had to build.

W. L. Moore, in reply:

The buildings must be necessary and proper; we say they

were not.

Cur. adv. vult.

WILLIAMS, J. :—

The circumstances of this case are peculiar. In 1885 Thomas Woods was the registered proprietor under the Land Transfer Act of a quarter-acre of land, being Allotment 9 in the Gap Township, part of Section 29, Block III., in the Winton Hundred, in the Southland Provincial District. On the 7th of December, 1885, Thomas Woods borrowed money from one Rout, and gave him his promissory note for £20, due on the 10th of June, 1886, and a letter agreeing to mortgage the above land to secure the note and interest at 10 per cent. until the note was paid. At the same time Thomas Woods handed over the certificate of title to Rout. Thomas Woods did not pay the promissory note or any part of it, but apparently left the district, and died on the 10th of February, 1892. Rout, however, could not find Woods, and knew nothing of his death, and on the 10th of June, 1892, sold his interest under the agreement to mortgage to one Brown for £10. On the 28th of April, 1893, Brown sold his interest in the land under the agreement to the defendant Robertson for £20. Neither Brown nor Robertson was aware of the fact of Thomas Woods's death. Robertson says that at the time he bought there were no buildings or improvements on the land, and that the land was not worth more than £10. It occurs to me, however, that, as the personal liability of Thomas Woods was then manifestly worth nothing, and as Robertson gave £20 for Brown's interest in the land, the value of the land with a good title must have been more than that sum. Immediately after his purchase Robertson made inquiries as to Thomas Woods's whereabouts, and in July, 1894, advertised for him in Canterbury, whither he had been informed Thomas Woods had gone. Robertson, however, could get no information about him. Then, after these fruitless inquiries, Robertson erected buildings on the land at a cost of about £200, and has occupied the same ever since as a store, paying rates on the land and insurance on the buildings. It was not till February, 1898, that, as the result of further inquiries made on his behalf,

66

Robertson learnt of the death of Thomas Woods, and also that some of his relatives resided at Killinchy, in Canterbury. Robertson thereupon instructed his solicitor (Mr. Hanan) to write to one Robert Woods, at Killinchy, who, he says, he understood was a brother of Thomas Woods. To this letter a reply dated the 23rd of May, 1898, came, signed "William Woods," as set out in the seventh paragraph of the defendant's affidavit. The letter asked about the section, and asserted that the writer was the sole executor of Thomas Woods. This was not true; and Robertson ascertained that it was not true by causing search to be made at the Supreme Court Office at Christchurch, which showed that no will of Thomas Woods had been proved. Robertson made no further inquiries, but continued in occupation of the land and buildings. James Woods, the plaintiff, is the father of the deceased Thomas Woods, and resides in Canterbury. He was unaware that Thomas Woods had been the proprietor of the land in question, or that he had agreed to mortgage it. He knew, in short, nothing of the transaction. Nor was he aware that inquiries had been made about Thomas Woods, or of William Woods's letter of the 23rd of May, 1898. He says that William Woods is his son, but that he has not lived with him for many years, and that William Woods never told him about the inquiries or the letter. The first information that the plaintiff ever received about the section or his son's connection with it was by a letter from Messrs. Hinde & Co., of Winton, dated the 5th of February, 1901. They appear to have leased the land and buildings from Robertson. They inform James Woods of the fact of the land having been his son's, and that his son had mortgaged it, and at the same time question Robertson's title. Then James Woods set inquiries on foot, took out letters of administration to his son's estate, and ultimately has taken the present proceedings to redeem the equitable mortgage which his son gave to Rout in 1885. That the plaintiff has a right to redeem could not be, and was not, questioned at the hearing. The well-known rule "Once a mortgage always a mortgage" applies, and the equity of redemption remains in the mortgagor or his representative until it is barred by foreclosure or by sale under a power of sale. It was suggested that Robertson, being equitable mortgagee only, had no right to take possession. But he is in possession, and the summons asks that an account be taken of what is due to him. I think he must be treated in all respects as if he were a mortgagee

66

S.C.

1901.

WOODS

v.

ROBERTSON.

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