1930-04-09 — Page 7

FATHER AND SON AT LAW.

AN ASSIGNMENT AND MORTGAGE SEQUEL.

OMISSION TO INSPECT TITLE DEEDS.

FATHER'S RIGHTS UPHELD.

A written, judgment was delivered by the Chief Justice (Sir Henry Gollan) at the Supreme Court yesterday, when he held that a plaintiff had a right to house property which was alleged to håre been illegally. mortgaged by plaintiff's son."

At the hearing of the action, Mr. Eldon Potter, K.C.. and. Mr. F. C. Jenkin conducted the case for the plaintiff, Li Po Kwai, and Mr. C. G. Alabaster, K.C., appeared for the first defendant, Tsing Chuen. The second defendant (plaintiff's son) had not beeg served with the writ of sunimons, his whereabouts not being known, Plaintiff's case was that be assigned the property in question to himself, under another name, and his son, by which he did not in- tend to confer any beneficial rights on the latter. It was alleged that the son possessed himself of the knowledge that an assignment had been made, and mortgaged the property to the first defendant for $25,000

His Lordship held that if the first defendant or his solicitors, before the mortgage was executed, had asked for the production of the title deeds, they would have found that the second defendant was not in possession of them, and if they had then gone to the plaintiff as the person who had the deeds, they would have dis- covered the true position.

TEXT OF THE JUDGMENT.

THE HONG KONG DAILY PRESS, WEDNESDAY, APRIL 9, 1930.

HONG KONG'S 12) M.G.

FROM SHING MUN.

ASSAULT ON A LADY.

Enowledge of this advertisement THE WATER SUPPLY. ROUND THE COURTS. has not been brought home to the first defendant and is in no sense evidence against him, but it is submitted on behalf of the plaintiff. that it is relevant as showing that his conduct up to a few days be fore the mortgage to first defendant of second defendant's share in the property in question on March 7, 1920, was consistent with what he alleges to have been his intention at the time of the assignment of March 9, 1917.

Finally when on March 11, 1929, four days after the date of the said mortgage, the first defendant's solicitors wrote to the plaintiff | asking for the loan of the title deeds relating to the property in question to make attested copies thereof, the plaintiff at once went- to his solicitors and consulted them, with the result that the latter wrote on March 14, 1999, to the first de fendant's solicitors repudiating any right of the second defendant to the property in question.

Use of Assumed Names, The Arst defendant brings no evidence to show what the intention of the plaintiff was on March 9, 1917, and he could hardly be expect ed to do so. In cross-examination of the plaintiff, questions were put to him suggesting that the use of the name i Kan by the plaintif was with the object of deceiving. members of the public, and induc ing them to believe that when in his name of Li Hung Cheung, alias Li Po Kwai, he purported to assign for a named sum the property in ques- tion to Li `Kan and the second defendant, he intended to make it appear that Li Kan was a different person to Li Hung Cheung, alias Li Pc Ewai, and that the trans- action was a sale for valuable con. sideration.

I therefore And in plaintiff's on the execution of this assignment favour on this issue and hold that resulting trust in favour of the plaintif arose and that the pre sumption of advancement in favour of the second defendant has been rebutted.

The plaintiff is a merchant résid | to his third and fourth sons, res ing in Hong Kong, and alleges in pectively; and in each deed there was 2 statement that n named his statement of claim that on and amount passed as the consideration Certainly there is ground for for some time prior to March 3, for the assignment. This amount, animadversion on the lengths to 1917, he was the Crown lessee of according to the plaintiff, repre- which the use of aliases is some-

sented the value attached to each times carried, and it is easily con certain premises in Victoria known

of the properties upon the divisionceivable that alienes may be used a 19, and 20 Wing Kut Street. of his father's estate, but he swore for purposes of fraud, but after These premises are hereafter refer that in fact nothing was paid under careful consideration of the eri- red to as the property in questiff stated in the course of his stances in this case, I have come

any of the assignments. The plain-dence and of the attendant circum- tion.

examination-in-chief: My object the conclusion that I should not By deed of assignment dated in putting these properties in the March 0. 1917, the plaintiff, under joint name of myself and my three phatic statement of the plaintiff justified in rejecting the em- the name of Li Hung Cheung, alias sons was to mark out the proper- Li Po Kwai, transferred the pro-ties so that in case of my death

that he never intended to benefit the second defendant by the assign perty in question to himself, under the properties might be handed to ment of March 9, 1917, .or to be another alian of Li Kap, and the them later on-that they might party to any fraud. second defendant, who is his second succeed. to the properties if they son, as joint tenants, in professed behaved well during my lifetime. consideration of the payment of a If they behaved ill, I had the right sum of 918,000 by the assignees to the to cancel the assignments. I had plaintiff. He alleges and on this no intention of conferring any point the plaintiff was net cross-right in these properties, on the examined that the second defen- second defendant. Then in cross- dant was not aware, at the time, examination he said:" I intended of the execution of the Deed of to mark out the property do that Assignment; and he further states, it might go to my son at my death. that in fact no consideration was if he behaved properly, but not received by him in respect of the automatically. If he did not be transfer.

have property, I thought I had the The Statement of Claim goes on right to cancel the assignment. If the pics that by this assignment he behaved properly, I would not the plaintiff never intended to con, have allowed the assignment to fer any beneficial interest in the operate. I would have left my pro- property in question upon the perty by will. According to Chi- second defendant and that he re- tained complete control and posses marking out property in this way. nese custom there is a custom of aion of such property.

It was not marked out so that my executors might hand the deeds to the son mentioned. My will would have distributed my estate. It is a Chinese custom to mark out the properties to show that I have such a son." On re-examination. the plaintiff explicitly declared that by the assignment on March 9, 1917, he did not intend to vest any in- terest in the second defendant, either during his life or after his death.

་

On March 7, 1098, the second de fendant, although he was aware, according to the allegations of the plaintiff, that he had no beneficia! interest in the property in question, wrongfully mortgaged one equal undivided moiety thereof to the first defendant, who is a partner in, and acted as the nominee of.

But the case for the first defen. dant does not rest bere. It is admitted on his behalf that the behaviour of the plaintif has been such that the defendant should not be deemed to hold the moiety of the property in question mortgaged by the second defendant to him as a trustee for the plaintiff.

It is argued that the assignment of March 9, 1917, clearly expresses

Mr. F. Britto was fined 810 by The total storage in the island | Mr. “Whyte-Smith yesterday when' reservoirs on the morning of Mon-he was found guilty of minor day. April 7, amounted to 744.71 assault" against Mrs. L. Santos on million gallons' shewing a decrease of 20.08 million gallons during the past week the" amount collected. from streams being 10.03 million gallons.

The week's consumption amount ed to 49.60 million gallons which in- Blades 12.03 million gallons from the Shing Mun Supply..

Kowloon Supply.

farch 25..

In the witness box, Mirs. Santos said that on the day in question, abe left her house early in the morning and went to Mrs. Stella Xavier's place, where she remained all day, sewing. During the course of the day, Mr. Castro and Mrs. Mastos joined them and all went well until about 4 p., whèn de- The total storage in the mainland fendant came in. As she was told reservoirs on the morning of Man- day, April 7, amounted to 409.08 by her husband that she was not

to be where Britto was, so pre million gallons, shewing an increasepared to go away when the row of 8.31 million gallons during the started. Britto was alleged to have past week.

drawing blood from her mouth. struck her twice, the second slap

The week's consumption, not in cluding Hong Kong supplies and 2.06 million gallons delivered to water boats at Laichikok, amounted to 23.18 million gallons.

The yield from the Shing Mun River and streams during the week was 48.20 million gallons.

EASTER EXCURSION. CHINESE T.M.C.A. MEMBERS

TO TOUR CANTON.

Rendall, who appeared. for the de- Cross-examined by Mr. F. O. E. fence, complainant admitted har client. ing used abusive words to his

Two witnesses were called by Mrs. Santos, and after a lengthy dis cussion, Mr. Rendall submitted that, he had no case to answer.

The Magistrate remarked that he' had a feeling that Britto was the Agressor and said that he thought Mr. Rendall had a case to answer. and that there was a case of assault, though not without provocation.

He accordingly registered a con viction and imposed the above fine.

.1

WOMAN FACES SERIOUS

CHARGE.

Was

ordered

Taking advantage of the public holidays between the 18th and 21st instant, the Chinese Y.M.C.A. in the Colony is forming a touring party to visit Canton and Fatshan. They will visit the Whampoa Mili- tary School, the Canton Aracual, the Waterworks, the Automatic Tele- phone Exchange, 'the 'Electricity Plant, the Chungshan University, the Canton Christian College, the Chap Hsien Memorial School, the Canton Sanitarium, the Yellow Flower Hill, the Goddess of Mercy, Hill, the Canton Museum, the Poor Asylum and the Lunatic Asylum in Inspector John Murphy, for the Canton and the Chungshan Iron prosecution, said that on September Park, the Tano Temple, the Shinged to Singapore by the 3.3. Tilawa Bridge, the Chungshan Publie 10, 1928, a party of emigrants sail Wong Temple, the Tin Sum College and other places in Fatshan.

An adjournment when the case in which a Chinese woman. is charged with enticing a young girl from her parents and taking her to Singapore for im moral purposes came before" Mr. Whyte-Smith yesterday..

after having been interrogated and having complied" with the, usual formalities at the S.CA. in ac cordance with the Asiatic Emi-

deeds fixes him with a knowledge grants Ordinance. The girl was dant was a trustee of one undivided ing the trip to the "southern part of the fact that the second defen instructed to say that she was mak moiety of the property in question to visit her husband.

When she got to Singapore, the for the plaintiff, and that couse- quently, the legal estate of the Arst girl was taken to a house and later defendant should be postponed to introduced into a brothel, where the equitable rights of the plain-she stayed for about a year. Acting tiff owing to an emission which on advice from this port, the Sin- constitutes

Igapore authorities carried out a gross négligence. agree with this argument, and if raid on the premises, and the girl authority is required it will readily brought about by a report made be found in Oliver v. Hinton (1890) 2 ch: p.264, and "Berwick & by her parents, who later went to the S.C.A and indentified her photograph.

Co. v. Price" (1905) 1 th. p.602.

It was further argued on behalf of the first defendant that the re gistration of the assigament of

In Kettlewell . Watson" 28 CD., p.501, which was a case re lating to land in the West Riding of Yorkshire, dealings with which had to be registered by memorial under the West Riding Registry Act (2 and 3 Anne, C.4) an argu ment similar to that used on behalf of the first defendant was advanced. but in the course of his judgment

was found. Her discovery was

At this stage, the order for an adjournment was made.

A COMMON GAMING HOUSE.

trate said that he was ready to be In passing sentence, the magis

lieve that the premises; were kept as a social club, but he found that they had contravened the Gaming Ordinance.

He ordered the money found on

the table at the time of the raid

to be confiscated.

"SUMMARY JUSTICE" IN THE HOME REPROVED.

a transfer of an undivided moiety March 9, 1917, and of the lease of in the property in question to LiOctober 11, 1997, constituted a re- Kan and Li Nga Ching. persons presentation to the public that the on the face of it having no con- persons of the names of Li Kan

The case in which Lo Kang and 18 nection with the plaintiff, that a

and Li Nga Ching were joint others were charged with keeping memorial of the deed was registered tenants of the property in question, a common gaming house was con in the Land Office under Ordinance and that each one of them was cluded before Mr. Whyte Smith No. 1 of 1884, and that a memorial therefore, at liberty to mortgage a yesterday when the first defendant of the lease of October 11, 1037, moiety of the interest in such pro-was fined $50 and the others 32 was also registered in the Land perty and that it was not there I cach. Office. These acts, it is said, con- fore necessary for the first defen- the Kam Chuen Bank, of 105,

stituted a representation by the dant to call for the production of Queen's Road Central, to secure

plaintiff that the property in ques the title deeds relating to it. repayment of a sum of 823,000 and

tion belonged to pereans of the interest thereon. Though the ad- vance of this amount is put in issue reception of the evidence of a

I have already deal with the name of Li Kan and La Nga Ching in undivided moieties and that in the statement of claim, it was living assignor as to his intention consequently so far as the Arst admitted at the hearing before me that the advance had in fact been at the date of the assignment, but defendant is concerned, it must he made by the first defendant,

the ease for the plaintif does not taken that the second defendant The case for the plaintif is that only rest on such evidence. There had a right to convey, and the first the evidenco disclosed a resulting is alleged, on his behalf, a coarse defendant had a right to take, the trust in his favour which postponed of conduct and adherence to a clear undivided moiety so vested in the the legal estate conferred by the attitude toward this assignment second defendant under the mort Lindley, LJ.. in giving the judg mortgage on the first defendant to which, it is argued, strongly sup-gage of March 7, 1929.

It was also pleaded in the statement of the Court of Appeal, said: the equitable interest of the plain-Forts his evidence as to intention at the time of the assignment (see tif; and the plaintif claims a

ment of defence that having regard (at p.508) Neither can we accede declaration that he is entitled to "Gooch v. Gooch," 6 L.T. to the contents of the memorials to the contention that in register above referred to it was not neces. counties it is not necessary, for a the property in question free from P.387). the mortgage to the first defendant It is proved that, the second de..sary for the first defendant to call purchaser to inquire for or examine and to an order directing the latter fendant knew nothing of the assign- on the second defendant to produer deeds, memorials of which to reassign this property to the meat at the date it was made, that the title deeds before the former registered. The registered" memo

the plaintif kept in his own posses-

advanced money on mortgage of rials themselves give very little plaintif

It is clearly established by sion the deeds relating to the pro- the property in question, because information, and the object of the authority that, where property is perty in question, and that he col- these memorials were signed by the statute seems rather to be to let transferred by a parent to himself lected all rents and paid all out plaintiff. In other words, the first people know what they are to in- and a child, the presumption is that goings in connection with the

defendant asserts that he is freed quire about than to dispense with it is intended to be in advance-premises.

from ill consequences that flow inquiry respecting deeds and docu- ment; but this presumption may

Further, leage was made of the

from the omission of doing whatents, memorials of which are re- be rebutted by evidence, shewing

an ordinary prudent man would gistered. On the same hand. the that a different object was intended. property in question for five Chi-

have done, ., calling for the title register invites a purchaser's at-

His Worship: The amah has a Where the parent has died before the lessors purported to be Li Kna is thinking of advancing money

nese years on October 11, 1927, and deeds of any property on which he tention to the documents on it, and clear claim for wages, and there is

on the other it limits his enquiry no proof of the accusation, the question comes to be decided, and the second defendant. Appar because he was entitled to consider to these documenta, unless he has Defendant: I don't mind paying the evidence must obviously be of ently the second defendant knew that the existing conditions of the notice of others from some other the wages, but I shall keep her. a purely circumstantial nature, and nothing of this lense, and in any title to the property in question quarters. The common practice, property must be contemporaneous, with the caso the plaintiff signed his name transaction. But where he is alive, and openly claimed the right to

was such as was deducible from the moreover, certainly is in accor His Worship pointed out that facts appearing on the memorial dance with this view, and, prima defendant was being too clever," facie, & purchaser of lands in re and would have to return the pro- gister county omita ordinary pre perty. equity affecting the legal estate.

cautions if he makes no inquiry

The amak eventually withdrew respecting the documents. the ex the summons on condition that ́che If the first defendant or hisistence of which is disclosed by the

at

then his evidence as to intention do so because the second defendant which gave no indication of any is admissible. It may be open to was his son and had no right or

objection, more or less serious, but it is given upon oath and should not be rejected unless doubt is en- tertained of his good faith or of the reliability of his recollection. (See Devey v. Devoy" 26 L.J. Ch. p.290; "Worthington. Curtis" 1 O.D. p.418)...

title to the property leased. What ever may be said as to the validity of the claim made by the plaintiff,

Inspection of Title Desda,

are

A Kowloon resident, Miss Natalia Fernandez, was sharply marred by Mr. Whyte-Smith that she must not take the law into her own hands.

It appeared that Miss Fernandez inised a clock and accused her. amsh-whom she said was the only person in the house at the time. of stealing it. The amah, who was the complainant, declared that her mistress had attempted to search her and had." pushed her about." Miss Fernandez had refused to pay complainant her wages till the clock was returned.

ns to the right to sign his son's solicitora, before the mortgage was register. The conveyance of Novem.got her wages and property.

conduct in doing so is consistent name, it would appear that his executed, had done what they did after its execution and had demand with the attitude he maintained all ed inspection of the title deeds to through, that the property in ques- the property in question, they Marking Out the Properties. tion was his, and that the second | would have found out that, the The plaintiff is a Chinese gentle defendant had no interest in it. second defendant was not in posses man of standing in the community Then an advertisement was in-sion of them, and if he had taken and no question has been raised asserted by the plaintiff in a Chinese the next logical-step and demanded to his financial position. Ho stat paper on March 4, 1330, and kept in inspection from the plaintiff as the ed, in the course of his evidence, for a week, which warned persons person in whose hands they actually. that he became possessed of the pro- against transactions with plaintiff's were, he would at once have dis perty in question and three other sons or nephews. He says that is covered that the plaintiff asserted houses when his father's estate was was inserted because a short time that the second defendant had no divided; and that he dealt with previously a broker had stated to beneficial interest in the property these premises by deeds of assign him that it was being said that, in question. ment dated March 9, 1917. The plaintiff wished to raise money on property in question he assigned to the property in question, and plain- himself ae L Kan and to the second tiff's explanation is that he want defendant, and the other houses hued to caution persons intending to assigned to himself as Li Ban and lend money to his sons or nephews.

ber 13, 1872, from the plaintiffs to Richardson & Watson was properly entered on the register, but neither of the appellants searched the re- gister or made any inquiry whatever for the deed. Prima facie, there fore, both of the appellants omitted to take reasonable precautions."

In the circumstances of the case, I am of opinion that the plaintiff is entitled to (a), the property in question free from the mortgage of March 7, 1929, from second defen dant to first defendant, and (b) an order directing the first defen- dant to reassign the undivided moiety of the said property to the plaintiff.

It is argued on behalf of the plaintiff that the failure of the first defendant to take reasonable pre caetion of calling for the title My judgment must therefore be

(Continued on next Uolumn) for the plaintiff with costs.

This was accepted, but his Wor ship sent a constable to see that the terms of the panes tresty, were duly observed by both parties.

CRUELTY TO CHICKENS.

A fine of 85 was imposed on a stylishly garbed Chinese young lady. by Mr. Whyte-Smithyesterday when he found her guilty of causing. unnecessary cruelty to two chickens, by carrying them suspended by the wings, which were secured by s piece of string.

It was stated that the chickens were brought to Yaumati from Tai- Do and were given to the defendant, by her mother who lived in the latter place.

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