CO129-322 - Acting Governor May - 1904 [1-5] — Page 746

CO129 Colonial Office Hong Kong Records 理藩院香港檔案 All AI Reviewed

742

the ownership of the mortgagee shall, under certain conditions, be deemed absolute. The obvious intention is to prevent anyone from intervening permanently between the Government and the holder of the land: and accordingly the argument from mortgage applies à fortiori to perpetual lease.

Therefore, I again hold that, under the strict law which the Land Court has to administer, the claims of perpetual lessee and perpetual lessor must be disallowed as inherently vicious, and again it remains to deal with the matter executively under the instructions of the Secretary of State.

Now the case of perpetual lessor is complicated by the fact that he may not have received the full value of his land. If A has sold to B: then A, having ex hypothesi received the full value of the land, his interest in the land ceases, and in equity as well as law his claim can be entirely ignored. But, if A has leased in perpetuity to B, it is possible that A has not yet received as rent from B the full value of the land. If therefore A is ejected, he may suffer pecuniary loss. His case must then be further analysed.

(a) Suppose the lease has run for a long term of years, A drawing rent year by year must in time recover or has already recovered the full value of the land. It is then no longer equitable that B should be obliged to continue paying rent for land, which he has practically purchased on the instalment system. For it must be borne in mind that A has parted with the land itself as entirely as if he had sold it, and that the only reason why B did not buy the land in the first instance is because he had not ready money available. In this case therefore, in view of the fraud tainting the whole transaction, I do not think that any principle of equity would be infringed by ejecting A, following the precedent of the Chinese law of mortgage. Whether the period should be fixed at 30 years, or should be a matter of special recommendation in each case, is a detail that can be separately considered.

(b) Suppose that A, the perpetual lessor, obtains an annual rent of $1 from B, the perpetual lessee: then, if the Crown rent is

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A 742 the ownership of the mortgagee shall, under certain conditions, be deemed absolute. The obvious intention is to prevent anyone from intervening permanently between the Government and the holder of the land: and accordingly the argument from mortgage applies à fortiori to perpetual lease. Therefore, I again hold that, under the strict law which the Land Court has to administer, the claims of perpetual lessee and perpetual lessor must be disallowed as inherently vicious, and again it remains to deal with the matter executively under the instructions of the Secretary of State. Now the case of perpetual lessor is complicated by the fact that he may not have received the full value of his land. If A has sold to B: then A, having ex hypothesi received the full value of the land, his interest in the land ceases, and in equity as well as law his claim can be entirely ignored. But, if A has leased in perpetuity to B, it is possible that A has not yet received as rent from B the full value of the land. If therefore A is ejected, he may suffer pecuniary loss. His case must then be further analysed. (a) Suppose the lease has run for a long term of years, A drawing rent year by year must in time recover or has already recovered the full value of the land. It is then no longer equitable that B should be obliged to continue paying rent for land, which he has practically purchased on the instalment system. For it must be borne in mind that A has parted with the land itself as entirely as if he had sold it, and that the only reason why B did not buy the land in the first instance is because he had not ready money available. In this case therefore, in view of the fraud tainting the whole transaction, I do not think that any principle of equity would be infringed by ejecting A, following the precedent of the Chinese law of mortgage. Whether the period should be fixed at 30 years, or should be a matter of special recommendation in each case, is a detail that can be separately considered. (b) Suppose that A, the perpetual lessor, obtains an annual rent of $1 from B, the perpetual lessee: then, if the Crown rent is

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1 5 A 742 the ownership of the mortgagee shall, under certain conditions, be deemed absolute. The obvious intention is to prevent anyone from intervening permanently between the Government and the holder of the land: and accordingly the argument from mortage anolides à fortiori to perpetual lease. Therefore, I again hold that, under the stricthan which the Land Court has to administer, the claims of perpetual lessee and per- petual lessor must be disallowed as inherently vicious, and again it remains to deal with the matter executively under the instruc- tions of the Secretary of State. the A Now the case of perpetual lessor is complicated by the fact that he may not have received the full value of his land, Tf A has sold to B: then A, having ex hypothesi received the full value of the land, his interest in the land ceases, and in equity as well as bis clain can be entirely ignored. But, if A has leased in oecoeta-i ity to B. it is cossible that A has not yet received as rent from B the full value of the land. If therefore A is ejected, he may suf- fer pecuniary loss. His case must then be further analysed. (a) Suppose the lease has run for a long tert of years, A drawing rent year by year must in time recover or has already re- covered the full value of the land. It is then no longer equitable that B should be obliged to continue waying rent for land, which he has oractically purchased on the instalment system. For it must be borne in mind that A has parted with the land itself as entirely as if he had sold it, and that the only reason why E did not buy the land in the first instance is because he had not ready money avail- able. In this case therefore, in view of the fraud tainting the whole transaction, I do not think that any principle of equity would be infringed by ejecting A, following the orecedent of the Chinese lew of mortgage Whether the period should be fixed at 30 years, or should be a matter of soecial recommendation in each case, is a detail that can be separately considered. (6) Suppose that A, the perpetual lessor, obtains an annual rent of $1 from B, the perpetual lessee: then, if the Crown rent is

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742

the ownership of the mortgagee shall, under certain conditions, be

deemed absolute. The obvious intention is to prevent anyone from

intervening permanently between the Government and the holder of the

land: and accordingly the argument from mortage anolides à fortiori

to perpetual lease.

Therefore, I again hold that, under the stricthan which the

Land Court has to administer, the claims of perpetual lessee and per-

petual lessor must be disallowed as inherently vicious, and again

it remains to deal with the matter executively under the instruc-

tions of the Secretary of State.

the

Now the case of perpetual lessor is complicated by the fact

that he may not have received the full value of his land, Tf A has

sold to B: then A, having ex hypothesi received the full value of

the land, his interest in the land ceases, and in equity as well as

bis clain can be entirely ignored. But, if A has leased in oecoeta-i

ity to B. it is cossible that A has not yet received as rent from B

the full value of the land. If therefore A is ejected, he may suf-

fer pecuniary loss. His case must then be further analysed.

(a) Suppose the lease has run for a long tert of years, A

drawing rent year by year must in time recover or has already re- covered the full value of the land. It is then no longer equitable that B should be obliged to continue waying rent for land, which he has oractically purchased on the instalment system. For it must be borne in mind that A has parted with the land itself as entirely as if he had sold it, and that the only reason why E did not buy the land in the first instance is because he had not ready money avail- able. In this case therefore, in view of the fraud tainting the whole transaction, I do not think that any principle of equity would be infringed by ejecting A, following the orecedent of the Chinese lew of mortgage Whether the period should be fixed at 30 years, or should be a matter of soecial recommendation in each case, is a

detail that can be separately considered.

(6)

Suppose that A, the perpetual lessor, obtains an annual rent of $1 from B, the perpetual lessee: then, if the Crown rent is

CO129-322 - Acting Governor May - 1904 [1-5] — Page 746

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