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S.C. 1901.

GIFFEN

v.

LEGGATT.

if the Warden asks him. It is not shown that Mr. Stratford asked any questions, nor is it proved, nor is it a necessary inference, that if Mein had told Mr. Stratford all about the arrangement Mr. Stratford would not have allowed Mein to be first applicant, or would not have granted his application. All that can be said is that he might not have done so. The Warden (Mr. McCarthy) has decided that there was a duty to make the disclosure; that, even if there was not, the non-disclosure put a wrong complexion on the matter, and would so mislead the Warden before whom the application was made. The Act, however, requires that in order to set aside a title it must appear that the title was obtained by fraudulent misrepresentation, and the simple question is whether upon the facts there was fraudulent misrepresentation. If there was not, then

a mere breach of duty by non-representation is not sufficient to set aside a title, even if a duty to represent exists, unless the party obtaining the title actually knew such to be his duty, and wilfully abstained from performing his duty.

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The decree of forfeiture allowing the plaintiff to become first applicant, and the subsequent grant of the application, are each in the nature of a judgment. The principles on which the Court acts in setting aside a judgment on the ground of fraud are stated by Lord Cairns in Patch v. Ward(1). He there says, "The principle on which a decree may be thus "impeached is expressed in the case which is generally re"ferred to on this subject-the Duchess of Kingston's case"where the Judges, being consulted by the House of Lords, replied to one of the questions, Fraud is an extrinsic collateral act which vitiates the most solemn proceedings of "Courts of justice. Lord Coke says it avoids all judicial acts, ecclesiastical or temporal.'" Lord Cairns goes on to say, "The fraud there spoken of must clearly, as it seems to "me, be actual fraud, such that there is on the part of the person chargeable with it the malus animus, the mala mens putting itself in motion and acting in order to take an undue "advantage of some other person for the purpose of actually "and knowingly defrauding him." And in applying this principle to the case where the judgment of a foreign Court was impeached on the ground of fraud, Lord Coleridge, in Abouloff v. Oppenheimer(2), says that the question to consider (1) L.R. 3 Ch. 203, 206. (2) 10 Q.B.D. 295.

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is whether the Court has been misled intentionally by the fraud of the person seeking to enforce the judgment. The words "fraudulent misrepresentation" in our Act refer to the same kind of fraud, and not to mere implied or legal fraud, if, indeed, such a thing any longer exists.

I can find no evidence whatever in the present case of fraud, as above defined. Where it is not proved to be the practice for an applicant for a forfeiture with a prospective right of taking up the claim, or for the applicant for a claim, to disclose unasked any arrangement he may have made with other parties as to the claim, it is impossible to conclude that his silence in any particular case must be held to be wilful and for the purpose of deceiving the Warden. I see no ground for imputing any intention to deceive the Warden either on the part of Mein or of his solicitor.

For the above reasons the appeal is allowed,, and the decision of the Warden reversed. The plaintiff must pay £10 108. costs of this Court, and disbursements to be fixed by the Registrar, and the costs, disbursements, and witnesses' expenses in the Court below, to be fixed by the Warden.

Solicitors for the appellant: Macalister Bros. (Invercargill).
Solicitor for the respondents: R. W. Hall (Invercargill).

S.C.

1901.

GIFFEN

V.

LEGGATT.

FLOCKTON v. LEONARD.

Statute of Frauds-Memorandum in Writing-Description of Property.

"That property in Dixon Street, with all buildings thereon, being "Section No. on the plan of the City of Wellington, and having a "frontage of 29 ft. to Dixon Street," is a sufficient description of the property sold for the purposes of a memorandum of a contract for the sale of land to satisfy the Statute of Frauds, where the property referred to can be identified by parol evidence; and parol evidence is admissible for the purpose.

ACTION

CTION for specific performance of an agreement for the sale of land. The action was heard by Cooper, J., without a jury, at Wellington, on the 20th of March, 1901.

The facts of the case are stated in the judgment.

A. Gray for the plaintiff.
Wilford for the defendant.

S.C. HEARING. WELLINGTON.

1901.

March 20;

April 17.

COOPER, J.

Cur, adv. vult.

S.C.

1901.

v.

LEONARD.

COOPER, J.:

In this case the plaintiff claims specific performance of an FLOCKTON agreement for the sale by the defendant to her of a piece of land in the City of Wellington, being part of Section No. 174 on the plan of the City of Wellington, containing 7 perches, more or less, with a frontage to Dixon Street of 37 links, the other boundaries of the land being set out in paragraph 1 of the statement of claim.

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The agreement relied on by the plaintiff is as follows:

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27th January, 1900. "THIS agreement witnesseth that I, George Leonard, agree "to sell, and Johanna Flockton agrees to buy, that property "in Dixon Street, with all buildings thereon, being Sec"tion No. on the plan of the City of Wellington, and having a frontage of 29 ft. to Dixon Street and a depth of for the sum of seven hundred pounds stg. A 'deposit of ten pounds stg. is hereby acknowledged, and the "balance to be paid (£690) within fourteen days from .date "hereof if the deeds, etc., are correct and a title of transfer "executed in proper form.

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Signed this twenty-ninth day of January, one thousand "nine hundred.

"George Leonard X his mark.

"Witness-Frank Bedford."

[His Honour next stated the effect of the pleadings and the points argued at the hearing of the case, and, having disposed of certain of the objections raised on behalf of the defendant, proceeded as follows.]

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Mr. Wilford's first ground of objection is, however, of more importance. The description given in the agreement of the property sold is, that property in Dixon Street, with all "buildings thereon, being Section No. on the plan of "the City of Wellington, and having a frontage of 29 ft. to "Dixon Street, and a depth of He contends that

the omission of the number of the section and of the measurement of its depth renders the description so indeterminate and inconclusive that parol evidence cannot be admitted to identify the property.

The true rule is succinctly expressed in Fry on Specific Performance(1) in the following words: "Every valid contract must contain a description of the subject-matter, but

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(1) 3rd ed. § 342.

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"it is not necessary that it should be so described as to admit "of no doubt what it is; for the identity of the actual thing and the thing described may be shown by extrinsic evi"dence. This flows from the very necessity of the case; for, all actual things, except the contract itself, being outside "of and beyond the contract, the connection between the "words expressing the contract and things outside it must be established by something other than the contract itself "that is, by extrinsic evidence. The same rule is admitted, "and from the like necessity, with regard both to persons "and things mentioned in wills; and in the cases of contracts within both the fourth and the seventeenth sections "of the Statute of Frauds parol evidence as to identity is "admissible."

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In Macdonald v. Longbottom(1) Lord Campbell, C.J., in applying the same principle, says, "I am of opinion that, when there is a contract for the sale of a specific subject"matter, oral evidence may be received, for the purpose of showing what that subject-matter was, of every fact within "the knowledge of the parties before and at the time of the " contract."

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None of the cases cited by Mr. Wilford, in my opinion, help his contention, and two of them, Ball v. Bridges(2) and Carneross v. Hamilton(3), are in reality against it. In Ball v. Bridges (2) the property was described simply as "the house, without any further particulars. The plaintiff failed, but not on the ground of insufficient description of the property-for it was evident from the judgment of the Court that the Court considered the property sufficiently described--but because the acceptance of the defendant's offer to sell the house" was conditional only, such acceptance concluding with these words: "There will be some details necessary to be embodied in a contract of sale which I will prepare, and send you in a few days for approval and signature." In Carncross v. Hamilton (3), Williams, J., held that a document in the following words" Messrs. Barron and Co., Mosgiel.-Offer farm £30 per acre, one-third cash, balance five years; interest, 6 per "cent.-ADAM HAMILTON "-was, coupled with a telegraphic acceptance, Willing to deal, but not sure of rate of in"terest," and a subsequent telegram, "Six per cent accepted.-A. BARRON," a sufficient contract to satisfy the

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S.C.

1901. FLOCKTON

บ.

LEONARD.

S.C.

1901. FLOCKTON

LEONARD.

statute. Here neither acreage, section, nor place was stated, but the word "farm" only, and His Honour held that parol evidence could be adduced to show what the farm was, its extent and locality.

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In Waldron v. Jacob(1), "this place" was held to be a sufficient description, the Vice-Chancellor stating, "The expression used is this place.' It appears that there is not any place mentioned by name in the letter. However, Id certum est quod certum reddi potest; and there is evidence 66 which I consider is both admissible and sufficient that the "letter was written at Thornbury, and that therefore this "place' meant Thornbury.'' Shardlow v. Cotterell (2) is, however, conclusive on the point. There the only description given in the contract was "property purchased at £420 at Sun Inn, Pinkton," and the Court of Appeal, reversing the decision of Kay, J., held that that was a sufficient description. Lush, L.J., in his judgment, every word of which is applicable to the present case, says, "I therefore come to "the conclusion that a reasonable interpretation of the word property' in these documents is 'real property.' If this "is so, we have the nature of the property, the name of the "seller, the name of the buyer, the price to be paid, and the time when the purchase is to be completed, but it is urged that the property is not described with sufficient certainty. "I have been for a long time puzzling myself to know what

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can be the meaning of this objection. Suppose a horse"dealer, having a great number of horses, offers one of them "for sale; the horse is trotted out and approved of, but the "parties differ about the price. Suppose the next day the "seller writes and says, I will let you have that horse "for £50,' and the buyer writes to accept the offer, would not parol evidence be admissible to show what horse was "meant?" And he thus concludes his judgment: "general rule is, Id certum est quod certum reddi potest, "and I am of opinion that this maxim applies here. In Ogilvie v. Foljambe(3) parol evidence was wanted just as "much as here to show what was the subject matter of "the contract, and the judgment below" [referring to that of Kay, J.]" if carried to its legitimate results, would esta"blish that no contract can be good within the statute unless "it describes the property in such a way that it is wholly

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