time expressed itself satisfied as to all other matters upon which it was required to be satisfied by section 53. The said judgment of the Native Land Court was appealed from to the Native Appellate Court, which Court has, under the authority of section 92 of "The Native Land Court Act, 1894," stated this case for the opinion of the Supreme Court. The questions on which the opinion of the Supreme Court is sought are, 1. Is The Orakei Native Reserve Act, 1882," impliedly repealed by "The Native Land Court Act, 1894 "? If this question be answered in the negative, the following questions are submitted: 2. Had the beneficial owners named in the several partition orders of the Native Land Court power (a) to lease the said land in terms of "The Orakei Native Reserve Act, 1882,' without the intervention of any trustee? (b) Or are the beneficial owners named in the said partition orders thereby impliedly appointed trustees for themselves? (c) Or should the Native Land Court, when partitioning the land, have appointed a trustee in respect of each partition made in succession to Paora Tuhaere, deceased? 3. (a.) Does "The Orakei Native Reserve Act, 1882," enable the Native Land Court to grant confirmation under "The Native Land Court Act, 1894," notwithstanding that otherwise the said leases apparently contravene section 117 of the said Act, as amended? (b.) Or is any confirmation necessary of leases under "The Orakei Native Reserve Act, 1882 "? Mahony and McCormick in support of the leases. The Native Appellate Court was not represented by counsel. The Act under which these leases were executed is an enactment dealing with a special subject, and is not repealed by the later general Act of 1894 even by implication, for a general later law does not abrogate an earlier special one by mere implication. The intention of the Legislature must be manifested in express words, or there must be something to show that the Legislature had the special Act in its contemplation when the S.C. 1901. In re HAWKE'S LEASES. S.C. 1901. In re HAWKE'S LEASES. later one was passed: Maxwell on Statutes(1); In re Smith's Estate, Clements v. Ward (2); Fitzgerald v. Champneys(3). [CONOLLY, J.-I think I need not trouble you any further on that point. I am satisfied that The Native Land Court Act, 1894," does not repeal" The Orakei Native Reserve Act, 1882."] "The Orakei Native Reserve Act, 1882," is an Act within itself, and independent of any other statute. It is not dependent in any way upon the Native Land Court Act, and therefore no confirmation of leases granted under it is necessary. If, however, the Court should hold that confirmation is requisite, it is submitted that these leases ought to be confirmed, as they comply with all the provisions of the Act under which they have been executed. If Paora Tuhaere, a bare trustee, had power to execute valid leases, it is difficult to see why, after the land has been partitioned out amongst the owners, they should not exercise the same powers, and it is unnecessary that trustees should be appointed. It is clear that the Native Land Court had the special Act before it when the partition was made, the special provisions as to term of leasing and other conditions being incorporated in the orders. The Native Land Court seems to have acted inconsistently in the whole matter. If the Orakei Native Reserve Act had been repealed by the Native Land Court Act, trustees could not be appointed under it now, and the beneficial owners could not have been appointed trustees for themselves under the Act in 1898. The leases are outside the prohibitions of the Native Land Court Act, and, the Native Land Court having declared that in all other respects it has been satisfied, as required by the Native Land Court Act, it is submitted that these leases should be confirmed. CONOLLY, J.: — I am of opinion that "The Orakei Native Reserve Act, 1882," is not repealed by "The Native Land Court Act, 1894." The former Act applies specially to the Orakei Na tive Reserve, and authorises leases of the whole or any part thereof for any period not exceeding forty-two years, thus altering the Crown grant by which the land had been held inalienably. The Native Land Court Act, section 117, applied to Native lands generally, and therefore does not affect those which have been the subject of special legislation. The maxim Generalia specialibus non derogant applies. With regard to question 2, (a), "Had the beneficial owners named in the several partition orders of the Native Land "Court power to lease the said land in terms of The Orakei Native Reserve Act, 1882,' without the intervention of any ** trustee? my answer is in the affirmative. The Native Land Court has awarded them the land as owners, subject to certain restrictions, and has therefore apparently held that the intervention of trustees was unnecessary. Question 2, (b), requires no answer. Question 2, (c).-It does not appear to be necessary, or even desirable, that a trustee should have been appointed under the circumstances. As to question 3, I think that the leases should be confirmed by the Native Land Court, and that the Court has full power to confirm them. I have already explained why section 117 of "The Native Land Court Act, 1894," does not apply. Solicitor for the lessee: C. E. McCormick (Auckland). S.C. 1901. In re HAWKE'S LEASES. C.A. 1900. Nov. 5, 6, 7. 1901. February 1. [IN THE COURT OF APPEAL.] BROWN . BROWN AND OTHERS. Gift from Parent to Child-Under Influence-Aged or Infirm Parent – Independent Advice-Trustees and Solicitor acting improperly but not fraudulently disallowed their Costs. Though ordinarily a gift from a parent to a child stands unless undue influence or fraud is proved, the principles applicable to gifts by children to their parents apply when the natural position of the parties has become reversed, and the child has become the guardian of his aged or infirm parent. B. executed a mortgage to trustees for his mother to secure £800, being the estimated value of her interest under her deceased husband's will in the land mortgaged; the land having been at the same time, with her consent, transferred to B. by the same trustees, who were the trustees under the will. Some time afterwards she proposed to make her will leaving all her property to B., and went with B. to a solicitor's office for that purpose. There she met one of the trustees, and, after something had transpired, she signed a document which stated that, being desirous of giving her son B. all her property at once, she requested and directed the trustees to release the above mortgage. She signed her mark, being illiterate. It was alleged by the other persons present that it was explained to her that the will would not take effect until her death, and that she then stated that her intention was to make an immediate gift. This she denied, stating that she was unaware of the effect of what she signed. She was then seventy-six years of age, and lived with her son B. She had no independent advice. The trustees forthwith released the mortgage in accordance with the direction. Held, That the transaction could not stand, and that B. must restore the mortgage or pay the amount secured with interest. Held, also, That the trustees and the solicitor acted improperly in not insuring that the mother had independent advice, but that, the time limited for actions for non-fraudulent breaches of trust having expired, the trustees' conduct did not amount to fraud so as to render them liable to restore the fund in default of B. Both the trustees and the solicitor were, however, refused their costs of defence. MOTIO OTION for decree removed for argument into the Court of Appeal. The action was brought by Mary Jane Brown against her son, Samuel Brown, and against D. Thomas and J. Sealey, the trustees under her deceased husband's will, and E. G. Crisp, who acted as solicitor in respect of the transactions, and asked that certain transactions be declared to be fraudulent and void, and that the defendant Brown, or in default the other defendants, be ordered to make good all losses which the plaintiff had suffered by the transactions. The facts are very fully set out in the judgment of Stout, C.J. Joynt and Raymond, for the plaintiff : The transaction cannot stand; it will be set aside on the ground of undue influence. The leading case on that subject is Huguenin v. Baseley(1). Where the relation of the parties is such that undue influence might have been exercised, it is not sufficient to show that the donor knew what he was doing. While the confidential relation exists it is impossible to rebut the presumption of undue influence unless the donor had independent and competent advice: Archer v. Hudson (2); Hoghton v. Hoghton(3); Wright v. Vanderplank(4); Rhodes v. Bate(5); Lyon v. Home(6); Allcard v. Skinner(7); Liles v. Terry(8); Powell v. Powell(9); Barron v. Willis(10); Inder v. Sievwright(11). The relation exists where dominion is exercised by one over the mind of another. It is enough to show that the relations of the parties were such that dominion might have been exercised. As to parent being under dominion of child: Bigelow on Fraud (12). The solicitor acting for both parties is not competent to give independent advice. The trustees are liable also to make good the fund; so, also, the defendant Crisp, who acted as solicitor. The facts show that all the efforts of the trustees and Crisp were directed entirely for the benefit of defendant Brown, and that they utterly disregarded the interests of the plaintiff. (1) 14 Ves. 273. (2) 7 Beav. 551. (3) 15 Beav. 278, 298. (4) 8 DeG. M. & G. 133. (5) L.R. 1 Ch. 252, 257. (6) L.R. 6 Eq. 655. (7) 36.Ch.D. 145. (10) [1900] 2 Ch. 121. C.A. 1900-1. BROWN บ. BROWN. |