S.C. IN CHAMBERS. 1902. June 25. CONOLLY, J. TONSON GARLICK COMPANY (LIMITED) v. PEAR- Land Transfer-Charging-order-Transfer prior in Date - Rectification of A memorandum of transfer dated prior to the issue of the certificate of title was tendered for registration. On the same day, but shortly prior to the tender of the transfer, a charging-order against the vendor's interest in the land was obtained, and registered. Registration of the transfer being refused by the Registrar, application was made to the Court for cancellation of the registration of the charging-order. The application was opposed, on the ground that the transfer had been made with the intent to defeat and defraud the creditors of the vendor. Held, That the cancellation of the registration of the charging-order could not be granted until the issue of fraud had been tried and determined, or abandoned by failure to proceed. By memorandum of transfer, dated the 5th of June, 1902, Y Mary Dinah Pearson, in consideration of the sum of £100, transferred to George Loram her five-fourteenths interest in a block of land, containing 210 acres, situated in the Opuawhanga Survey District. For the same consideration she was to obtain from her two daughters transfers to Loram of the four-fourteenths interest held by them in the same block of land. The remaining five-fourteenths were held by Pearson's husband. A certificate of title for the land was issued to Pearson, her two daughters, and her husband, as tenants in common, in the proportions mentioned, on the 11th of June, 1902. The Tonson Garlick Company (Limited) having obtained judgment in the Magistrate's Court against Mary Dinah Pearson for £24 5s. 6d., a charging-order for that amount and costs was taken out by the company and registered against Pearson's interest in the land on the day upon which the certificate of title was issued, the charging-order being of even date with the certificate. On the same day, but subsequent to the registration of the charging-order, the transfer from Pearson to Loram was tendered for registration. Registration of the transfer was refused by the District Land Registrar. and Loram now applied, under Rule 314, for the cancellation of the registration of the charging-order, The application was opposed, on the ground that the transfer from Pearson to Loram was not bonâ fide, and that it had been made with the intent to defraud and defeat Pearson's creditors. A number of affidavits were filed in support of the allegation of fraud, showing, inter alia, that the nine-fourteenths interest in the land of Pearson and her two daughters, acquired by Loram for £100, was worth not less than £260; that about the end of April, 1902, Pearson had approached a firm of timbermerchants with the expressed object of effecting a fraudulent sale to them of the timber rights on the land, of herself and her two daughters, but the firm had refused to be a party to the transaction; that on the 15th of May Pearson had contracted with one Goldie for the sale of these timber rights, for the sum of £192 17s.; and that M. McGregor, Loram's solicitor, had also been acting as solicitor to Pearson. Various affidavits were filed in reply, one of them, by M. McGregor, stating, inter alia, that he had not acted as solicitor to Pearson before the 30th of May, 1902. McGregor, in support of the application: Under section 4 of "The Land Transfer Act Amendment Act, 1889," Loram is entitled to registration of his transfer, although it was executed prior to the issue of the certificate of title to Pearson. He is also entitled to cancellation of the charging-order, for a charging-order only binds land subject to the equities subsisting at the time, and will therefore be removed to enable the registration of a transfer which was executed prior to the making of the charging-order: In re Mutual Benefit Building and Investment Society, Ex parte Baynes (1). In the case of In re Beattie (2) it was decided that a charging-order only affects property in which the defendant is beneficially interested, and registration gives no priority over an unregistered transfer to a person in good faith made before the issuing of the order. Campbell, contra : The transfer from Pearson to Loram is not bona fide. Pearson has sold the timber rights alone for nearly £200 to Goldie, and Loram paid only £100 for the whole property, including the moneys payable by Goldie for the timber: for it is alleged that the benefits under the agreement between Pearson and Goldie have passed to Loram. If this be so, Loram would be (1) N.Z. L.R. 5 S.C. 293. (2) N.Z. L.R. 5 S. C. 342. S.C. 1902. TONSON GARLICK COMPANY v. PEARSON, S.C. 1902. TONSON GARLICK COMPANY V. PEARSON, In re LORAM. entitled to receive from Goldie about £140 for timber alone, almost immediately after paying only £100 for the land and everything on it. The affidavit of Parker shows that Pearson approached him with the express object of defeating and defrauding her creditors; but he declined to be a party to the fraud. Loram's solicitor also acted as solicitor to Pearson, and Loram is therefore affected by the knowledge which his solicitor possessed. The total value of the property was at least £260, and the consideration paid by Loram was therefore grossly inadequate. The authorities show that this fact alone is sufficient to raise a presumption of fraud. The issue of fraud is raised, and that is a question for a jury to determine. The Court has power to make an order that this issue shall be tried and determined. McGregor, in reply: The transaction between Pearson and Parker took place on the 30th of April, and the agreement between her and Goldie was made on the 15th of May, while the affidavit of McGregor shows that he was not acting for Pearson till the 30th of May. Loram, for whom McGregor also acted, cannot therefore be affected by the alleged fraud of Pearson. CONOLLY, J. I am afraid I must put the parties to the trouble of trying the matter. It would be useless to register the transfer if it were fraudulent. The issue of fraud is distinctly raised, and I cannot decide that here. It must be tried before a jury. The order will be, that the issue be tried to determine whether the conveyance from Mary Dinah Pearson to George Loram is fraudulent, as being for gross undervalue, and made with the intent to defraud creditors. Tenson Garlick Company (Limited) to commence proceedings within fourteen days, otherwise registration of charging-order to be cancelled. Solicitor for Loram: M. McGregor (Auckland). Solicitor for Tonson Garlick Company: J. R. Lundon (Auckland). YOUNG AND OTHERS v. BAIN AND ANOTHER. In re Will-Bequest-Choses-in-action-Local Description-Residence of Debtor- S.C. IN BANCO. 1902. August 13, 15. A bequest of choses-in-action described as situated in a particular locality is limited to cases where at the time of the testator's death the WILLIAMS, J. debtors reside in that locality. A bank with a head office at one place and branches at a number of other places may be said to have its resi dence at the head office, but a bequest of the whole of the testator's real and personal estate at a particular place must be understood in the ordinary and popular meaning of the words used, and includes money on deposit or account current at a branch of a bank at that place. ORIGINATING summons. The facts and question to be determined are sufficiently stated in the judgment. F. R. Chapman, for the legatees: In ordinary practice the moneys would be payable at Oamaru, and were paid there. The testator thought his money was in Oamaru, and would have contradicted any one who said it was in Wellington. In some respects banks are located everywhere. By "The Bank of New South Wales Act, 1861 " (private) its notes are payable where issued. The bequest must be construed as it would be ordinarily understood: In re Prater(1); Horsfield v. Ashton(2); In re Robson(3). Sim, for the executors: 66 The words Oamaru and Dunedin " are not surplusage. If there was property at Dunedin and Oamaru, only that passes: Theobald on Wills(4). Here there was property answering description of property in Dunedin and Oamaru. Deposit-receipts and moneys payable by banks have no local existence but in the place where recoverable: Commissioners of Stamps v. Hope(5). The test was applied in Guthrie v. Walrond(6). In In re Prater(1) there was no other property, and the intention of the testator would have been defeated. A corporation resides where it carries on business, and that is S.C. 1902. YOUNG บ. BAIN, In re YOUNG. where its principal place of business is situated: Newby v. Von Oppen(1), Jones v. The Scottish Accident Insurance Company (2), followed by Watkins v. The Scottish Imperial Insurance Company(3) and Palmer v. Caledonian Railway Company (4). The banks must be treated as residing at Wellington. A debt is of the locality of the residence of the debtor: Guthrie v. Walrond(5). Chapman, in reply: To support the argument for the defendant it would be necessary to show that the testator had some appreciation of locality of the head office of the banks. That there was property that would answer description of the bequest is immaterial. In In re Robson (6) there was property to answer the description. The Court will presume against intestacy, which would practically ensue if the argument of the other side is adopted. Banks in a sense have their residence in every locality where they carry on business. WILLIAMS, J.: Cur. adv. vult. I think the cases establish generally that if a testator bequeaths choses-in-action which he describes as situate in a particular locality, the bequest is limited to cases where at the time of the death of the testator the debtors reside in that particular locality. I think also that a bank with a head office at one place and branches at a number of other places would be properly said to have its residence at the place where the head office is, and not at any of the places where the branches are. Those considerations, however, do not dispose of the present case. The testator devised and bequeathed to three legatees "the whole of my real and personal estate in Oamaru and "Dunedin." The will contained no residuary devise or bequest, nor any other devise or bequest whatever. The great bulk of his estate consisted of two sums of £1,700 each which had been placed by the testator on deposit in two banks in Oamaru, and of £113 on current account at one bank there. There was some real estate in Oamaru and Dunedin worth about £820, and personal estate in Oamaru, consisting of furniture, personal effects, shares, and debts due from persons in Oamaru, of the total value of about £150. The question |