1918-02-25 — Page 7

MONDAY, FEBRUARY 25, 1918.

SHIPPING

P. & O. S. N. CO.

ROYAL MAIL SERVICE

UNDER CONTRACT WITH HIS MAJESTY'S GOVERNMENT

TO

THE CHINA MAIL.

A HONGKONG CASE.

A PRITY COUNCIL DECISION.

d the court on the part of the to protes his, läterest in the property... purchaser therein contained.

He found as a fer that the nephew had

The facts above stated takon alone defrauded him by eresting the legs would, in their Lordshipa opinion, mortgage for 10,000 dollar, which establish beyond controversy thin the undoubtedly had priority" to his own We have now received the fullerson in the indenture described as the deniable Interest, and hed defrauded report of the judgment of an appeal purchaser was the nephew and not the the appellante by dresting in their favour from Hongkong to the Privy Council uncle, but there is one additious! foot the equitable mortgage for 14,000 dollar. in the uetou, Tong Shun. Fung which bsa not yet boon stated, and which (which, apart from any question, as to the

Is said to cutweigh the other evidence, unele's conduct, was undoubtedly po Ping Shan and Fung Yee Chal. or at least to create such an ambiguity as posed to the uncla's equitable oslabe.

This case, it will be remembered, to admit evidence of intention. As The uncle and the asphow thereupon,"

MARSEILLES AND LONDON,tored a mortgage to the defen-hereisbefore appears both the undle and after consulting solicitors in Hongkong

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dants, who are burikars, of certain the nephew have Chinese pames, which entered on the 20th June, 1924, into the property claimed by the plaintiff who may be properly rendered in English as following transaction: First, the nephew Applied to have the transaction set Tong Shun. To the Chinese ear the paid off the legal mortage and took a Faces are, hawever, quite distinct, reconveyance of the legal estate. It does Baide. The trint involved questions because their, intonation in different. mid appear whether the uncle of the of law, and engaged the attention of They are also distinct when written in nephew fout the money for this purpose. abo local Courts for a considerabia Chinese characters, because ther Secondly, the nephew assigned the legal It estate to the uncle andjeos ta thà, inden- period. The original judgment of the characters indicate tonal marks. Chief Justice was for the plaintiff. appears that the nephew in signing the pure, creating the equitable mortgage, and. indenture made use of the Chinens the principal and interest thereby secured, On appeal the Full Court here con-characters appropriate to his uncle's name the nephew covenanting with the unrele sisting of the President, Bir H. W. and ads of thom appropriate to his own to pay him on demand, the principal (WRITZA. It is said that this alone is of $13,000 and all interest or other monies de. Sausimarez, and the Puisnes Judge, name.

Mt. Justice Gompertz, the Judges suficient to identify the uncle as the dus by virtue of the indenture of 'mort. lisagreed, the President's view being person in the indenture described as the gauge, and the costs, changes, and expenses. in favour of the defendant bankers purchaser. Their Lordships cannot accept of paying off such mortgage and obtaining this contention. A person who signs, recanvayates thereof. The rewind poiză. and the Puisae Judge's in favour of favals, and delivers a dead of covenact their Lordships have to decide is tho the plaintiff and consequently the cannot avoid liability under the deed by effect of these transactions on the position original judgment stood. On the signing a name which his represents as of the appellants. The unsle contends farther appeal to the Privy Council but which is not in fact, his own, por can that they do not preclude him from wetting the result in that Anal judgment has be saddle such liability on the person up as againab the appellante the equitablo been given for the defendant bankers whose name he uses, unless he is the estate which he undoubtedly therekedőrs with costs both in the Privy Council duly constituted attorney of such person possessed. The appellantes on the other and below.

The nephow was not the duly constituted hand, contend that such equitable intorost Counsel for the plaintiff was Mr.attorney of the uncle. He is therefore as the uncle had prior to the transactions Eldon Potter instructed by Messrs. liable on the covenant, and to argue that in question is cow gono, and that his solu Hastings & Hastings and Counsel for while the person who covenante in the interest is the legal interest which he the defendant bankers was the Hon. nephew, the property passes to the uncle expressly takes subject to the appellants* Mr. E. H. Sharp, K.C., instructed by would be to contradict the deed, which equitable, mortgage Meaars. Deacon, Looker, Deacon & clearly indicates that the property passes Ip camidering these rival contentions, Haraton.

to the person who enters into the there are two poizita. which must be born's The judgment of the Privy Council covenant. Even if the use of the Chinsed in mind. In the first place, whatever the bonsisting of Lord Shaw, Lord Parker characters appropriate to the uncle's name nephew does in carrying cut the trans of Waddington and Lord Summer can be said to create an ambiguity to actions in question must be taken a dono was delivered by Lord Parker of elucidate which evidence of intention is by the direction of the uncle, the party Waddington and is as follows:- admissible, the uncle's position is in beneficially interested.

In the second

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By an indenture dated the 17th way improved. For it quife certain place, the position of an equitabla mors. September, 1000, and made between Pang that the vendor intended to convey to gagee may be improved by transactions to Kit Cheong (thereinsiter called the the nephew whom alone he knew in the which ho is not a party. Where a prior seador), of the one part and a person transaction. It is zibil ud rem to say that mortgage is paid off by the owners of therein described as "Tong Shus, of as long as the vendor got his money be the property, the position of a piace Vietoria, in the Colony of Hongkong did not care to whom he signed the equitable marigages is improved, although Trader," nad thereinafter called the property. The zephew was not called as the circumstances were such that the Birdmans, purchaser, of the other part, it was a witzices, and his reasons for gigning ss party taking the recohýcyance might, had Barnowing, witnessed that, in consideration of 26.500 he did are a matter of surmise, but having he so chosen, have kept the mortgage CHLOR, dollars then paid by the purchaser, the regard to the fact that he was about to live in his own favour, so as not to receipt whereof the vendor acknowledged, perpetrate a series of frauds, it is not benefit the pune imortgage. Even in KOTA BADJA the vendor assigned unto the purchaser improbable that he desired to be able to the case of the creation of as equitable MARINE,

the uncle (as he subsequently charge, it is not necessary that the person IDAK, that piece or parcel of land being assure

PADAND, Inland Lot No. 553 then known as No. neured him) that his (the uncle's) name in whose favour the charge is created 304, Bonham Strand, to held the same had been used in the transaction while should be a party to the transection. A PALOTOAN, and the purchaser for all the residne he himself remained in a position to conveyance by A to B wzbject to

property. ·

of the term created by and subject to the mortgage or otherwise deal with the payment of the rent and the performance; of the "lameo's covenanta and conditions reserved, and contained in the Crows lenge therein mentioned. And the purchaser thereby covenanted with the vendor that the purchaser would during the residue of the said term pay the rent and perforin

Their Lordships thick that the lego estate, undoubtedly passed to the nephew, though lassmuch as the transaction was one extered into on the unde's behalf and with money provided by bim, the nephew held the legal estate in trust for the uncle.

DJOKTAKARTA,

PAZENBAKI,

PETAND,

charge, in favors of U, creates thPORTZIAK, charge, if in bo the intention of the "parties, even though C be not himself a

party to the transaction.

BAXROOK

SAMARITO

SHANGHAI,

SINGAPOKE

BOURAXAZA, BOKRAKARTA (Solo)

Tamso Trout (D%: TROLL

Taaz Basoza, THIZLAZIAZ WETIVENDAE,

Corpoalents at Bombay, Colombo, Madras, Fondicherry: Osloutta, Bangkok. Balgan, Haiphong, Hanet, Amoy, Yoko Sama, Kobe, Melbours. "Bydney, Now York San Hasteisen, Anu, dn,

LONDON BALLANTA, kot

"If these points be borne in mind and attention bu paid to the indenture by which the nephew conveyed the legal estate to the uncle, it is in their Lord-

The Bank bays, tad male and for collection Bitm of kra letters of tradition. Its. Branchen) and Correspondents in the sty Continent, in Gruit: Britain," "Autaries Bornem of every emozigilon

the covenants in the said Crown Jease On the 12th November, 1909, the ships opinion ressonably clear that the served and contained, and Indemnity nephew created a legal mortgage on the effect of the transaction was, and was the vendor against all actions, cizim, and property for 15,000 dollars. This was a intended to be, that for which the #pped And Anustralia, and trannete barkku - demands on secount or is respect of the fraud upon the uncle, for the mortgagee lants contend. This indenture, comains den-payment of the said rent or the non-eould, by virtue of the legal estate, rely a recital of the appellants' mortgage, and performance of the said covenants and on the plea of purchase for value without no recital as to its being postponed to écpditions, or any of them. The inden. gotice.

the uncle's equitable estate. It also

J. E. VAN REES,

·Manager

ture was executed by both parties and On the 24th July, 1913, the nephew recites a request by, the uncle to the Hooghong, Sept 22, 1917 witnessed by Mr. Hodgson, a solicitor, created an equitable mortgage on the pro- nephew to assign the property to him, The vender was at the date of this perty for 18,000 dollars. This was fraud subject to the appellants mortgage, and denture the legal owner of the leasehold on the equitable mortgagee, whose interest to enter into the coversat thereinafter, property expressed to be thereby signed would be postponed to the prior equitable contained, namely, the covenant to pay and it cannot be disputed that the effect extase of the uncle.

the uncle on demand the principal and

of the indenture was to pass the legal On the 20th August, 1912, the nephew retate in the property to the person paid of the legal mortgage of the 12th therein referred to as the purchaser. The November, 1900, and took a zeconveyance only question is as to the identity of this of the legal estate.

interest dus on such mortgage, What THE YOKOHAMA SPECIE conceivable corsideration could there be

for such a covenant, unless the anelo intended to give the appellants priority

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Clasf Hamagur

Hongkong May 14, 1916

THE CHARTERED BANK OF

INDIA, AUSTRALIA & CHIRA.

INCORPORATED BY ROTAL CHARTEL

HEAD OF

person. The respondent (who will here- On the same 29th August, 1913, the in respect of their mortgage over his own inafter be referred to as the uncle nephew created another legal mortgage on equitable estates, and how can the uncin contends that he is the person in question, the property for 10,000 dollars. The now assort such equitable estate against AUTHORIan Davetat.Tom 46,000,000,00 | FLED DEPOSIT at 4 PER CHIT and that the legal estate passed to him, mortgage, was a fraud upon the uncle, the appellants without destroying this PAM OF CAPITALIS SIK,000,000,00 The appellants, on the other hand, con-over whom the mortgagee took priority by consideration? Again, the convoyance is tend that the person in question is a virtue of the legal estate.

expressed to be subject to the appellanta person who will be hereafter referred to On the 11th December: 1913, the indenture of mortgage and to payment of as the "nephew," and that the legal nephew paid off the equitable mortgage the principal and interest thereby securid, estate passed to the nephew,

of the 24th July, 1913, and took a recon- and not subject to any charge crusted by There can be no doubt that parole veyance of the mortgagee's interest this indenture which might take effect in evidence as, to the identity of a party to

On the 24th December, 1910, the pricrity to the uncle's equitable, estates, BOHAT 4 deed is always admissible, but in con. Depbow created an equitable mortgage.cn as would have been the case had the uncla CAKOVINA, sidering much evidence it is of paramount the property in favour of the appellants intended to set up such estate against the Cranocan importance to bear in mind the indicis offor 12,000 dollars. This was frond op appellants. Lastly, the nephew covenants DAIREH (DALKY) PRIES identity afforded by the deed itself. In the appellants, whose interess would be to pay the uncle, on demand, what is Fasonmar(KURDEN) RASSOON the present case these indicio are as postponed to the prior equitable estate of secured by the appellants' mortgage, and Harsow follows: the person to be looked for is a the uncle, unless, indeed, the azale bad not, as would have becz táis case if the HasOLAKU person who: (1) is named Teng Shut been guilty of conduct which in a Court (2) resides at Victoria in the Colony of of Equity would preclude him from rely Hongkong; (3) is a trader, (4) has paid ng on his priority in fire. the vendor 26,500 dollars; and (5) enters.

In this state of affales the uncle, into a convenant with the vendor by having very god reason to expect mus signing, sealing, and delivering the inden. conduct on the part of the nephew, left fure itself. The uncle's Chinese name Chicago and came to Hongkong, desiring may property be rendered in English sa Tony Shun and he may, no doubt, be properly described as a trader. He also sceme to have provided the 28,500 dollars paid to the vendor. Exat be was: In the care of kis health a man, it has Pot president, in Hongkong when the bean said, is gathers look of a physician co-extensive with the legal Indenture was executed. On the cost 40. For the average man i should he acquiring would prin tray he resided at Chicago, his only not be diffonit to be healthy sad in his merge in such logat tales connection with Hongkong being that ho With the weaker the ouse is differ prima at that agujero ATAN was or had been a partner in certain ent, for this ego is lizble to bring with businesses carried on in the Colony. He if anxieties and bealth trials; neverthe certainly did not either personally or by low, mukay women suffer more than they a properly constituted attorney signy seal,ctually, whether the

zoed.

THOUGHTS AT FORTY,

or deliver the indentare, or thereby enter man or womand, if the

into any covenant with the vendor. The from. Anædia Lephew, of the other hand, has a Chinese or fickle health comed

siame which may properly be rendered in

lood

supply the

[Hopf blood troubles)

English as Tong Shun: he resides in your buy, are weal Victoria in that Colony he is a trader, stamina, and your besith

he paid the 26,600 dollars, though gzt should be you can enjoy bow

of money provided by

personally signed, sealed, sod

the indenture and he is the only

who could possibly be sued by

› simple expedient of renew

To renew your blood

short course of Dr. Willems, bits)

for pale peen then as the new blood

which they make flows thro

veiw you will chip. Freal energies,

uncle's ontention be correct, to pay those HAKK monies to the appellants and indemnify a T the uncle's property for any claim to a Kom charge in respect thereof.

LONDON

In their Lordships' opinion, the effect LowesAS of these treanctions was that the imala, Leons instead of his equitable estate ranking in Nazarant" priority of sppellanta' mortgage, took the

Toro

TRIKAMPU

Fansur CARTIAL.

RÉSERTE FUIS

Hasznys LIABILITY OF PRO

06,000.

FOREIGN EXCHANGE MA Games

·Intercnt allowed on Current decounts. ~ Barking business tration. legal ostata subject to the appellanta Deposita received for fired. periods at: mortgage, in consideration of the nephew. | estes to be obtained on application. sovenanting / above mentioned. Ibe

KISHI ONO uncle's puer equitable estate, being

Hoddakong Jan 20, 1918,

Which facio,

The Man Who

Gets There

Ashton 9 V

Jupr. 139 Ra 28 C.D. 127 and Ba Solons, He might have kept again the appellante cleted not to do so, and the that the Appellania can claim

of the transaction, althoug

not parties to

Under these

whether the unde

Fullty

Court of

the?

aliver

CURRENT ACCOUNTS, PICED DEPOSITS FOR or shorter periode at rates quoted or applications

DOWWDGE,

*Hongkong: May 163

THE MERCANTILE BANK OF INDIA, LIMETED

ti