No. 2.
APPENDIX TO REPORT FROM THE LAND COMMISSION OF 1886-87.
Appendix No. 4,-Continued.
IN THE SUPREME COURT OF HONGKONG.
ORIGINAL JURISDICTION.
Suit No. 98 of 1882.
27
Between Lo ON, Plaintiff,
and
LEE FOO WING, Defendant.
Judgment of the Honourabte Sir George Philippo, Kt., Chief Justice, delivered 4th August, 1882.
This case came before me upon an Agreement under the Code of Civil Procedure, Section 88, and the question for my decision is as follows:-Has the defendant a legal right to the possession of No. 46, Jervois Street, Victoria, Hong- kong not barred by the Statute 3 and 4, Wm. IV. C, 27?
The premises in question were a portion of Inland Lot No. 202 which was granted by a Crown Lease dated 3rd June, 1846, to one CHING CHEONG for 75 years.
By an Indenture bearing date the 28th December, 1850, indorsed on the Crown Lease of 3rd June, 1846, and made or purporting to be made between Her Majesty the Queen of the one part and JOHN GRAHAM MORRISON of the other part After reciting that Her Majesty had been pleased to direct that the term of existing Crown Leases of lands and premises in Hongkong should be extended from the period of 75 years for the further term of 924 years, and that the said JOHN GRAHAM MORRISON had represented that all the title and interest in the within Lease had duly vested in him the said J. G. MORRISON Her Majesty leased the said Lot to the said J. G. MORRISON for the term of 924 years to be computed from the expiration of the said term of 75 years at under and subject to the like rent payable in like manner as in the original Crown Lease is mentioned in respect of the rent thereby reserved and to the like covenants provisions and agreements as are therein respectively contained. By Indenture bearing date 29th July, 1881, Mr. MORRISON by his attorney Mr. RYRIE assigned to YIU CHOоw and by Indenture bearing date 28th October, 1881, YIU CHow assigned to the defendant.
It was admitted by the Attorney General who appeared together with Mr. FRANCIS and Mr. Ho KAI for the plaintiff that as far as documentary Title goes the defendant had a good Title but that he, the defendant, must prove that he has the right of possession as well as Title.
Being myself of that opinion I ruled that the defendant must show a right to possession.
Mr. McKBAN, for the defendant, then called some evidence to show that in 1868 the premises had been rebuilt after a fire by the Agent of Mr. MORRISON, but he was unable to give satisfactory evidence that such was the case. Mr. Mc. KEAN whilst admitting present possession in plaintiff, refusing to admit 20 years adverse possession, the Attorney General called evidence to that effect which was unshaken by cross-examination and remained uncontradicted.
It was contended on the part of the defendant that the 3rd and 4th Wm. IV. did not apply to this Colony inasmuch as all lands in the Colony are held by Lease from the Crown and the Statute of Limitations did not bind the Crown who, if bound at all, come under the provisions of 9 Geo. III. C. 16. and several cases were cited in support of this contention. Upon examination of them however they do not appear to me to bear out the contention. One of the cases related to disseisin, and in another of the cases cited the trespasses alleged occurred prior to the Leases granted and not, as in this case, many years after. In that particular case therefore the Lessees took all the rights the Crown had not parted with. In this case the trespass originally, if it was a trespass, was not against the Crown but against the Lessee and the Crown's interest at the time was not prejudicially affected. (Dart's Vendors and Purchasers 404.)
The first entry appears from the evidence given on the part of the defendant to have taken place between the years 1855 and 1858. It does not appear whether Mr. MORRISON was or was not then in the Colony, but as it was not alleged that he was under disability during the time I conclude that he must have been in the Colony when the alleged wrongful entry was first made and that he made no objection thereto.
Mr. McKEAN also referred to Ordinance No. 3 of 1844. Now although the object of the Ordinance as stated in the preamble is "to prevent secret and fraudulent conveyances and to provide means whereby the title to real and immove- able property may be easily traced and ascertained" yet the Ordinance does not provide against merely possessory Titles in any way whatever, but merely provides for the registration of any documents affecting Title.