Hohepa Hikairo and four other Natives, being some of the owners of Lot 5A, transferred their estate and interest in the land to the Hauraki Sawmill Company in consideration of the sum of £25 17s. 6d. The first signature to the transfer was obtained on the 2nd of August, 1884, and the last on the 8th of July, 1892. On the 2nd of November, 1899, the company applied to the Native Land Court, at Paeroa, Thames, for a confirmation of the transfer in question, under the provisions of "The Native Land Court Act, 1894." The Native Land Court refused to confirm the transfer, on the ground that all the owners had not joined. The company appealing against this decision, a case was stated for the opinion of the Supreme Court under section 92 of "The Native Land Court Act, 1894." The special case submitted for the opinion of the Supreme Court the following questions: 1. Had the appellant a right in law to apply to the Native Land Court for confirmation of the said alienation? 2. Was the said alienation an alienation in accordance with the law in force at the time of the execution of the deed affecting such alienation? If not, was the effect of the legislation subsequent to The Native Land Act, 1873," sufficient to remove any defect in such alienation, and to render such alienation effective, subject to confirmation by the Court? 3. Had the Native Land Court jurisdiction to confirm the said alienation under "The Native Land Court Act, 1894," and ought the said Court to have confirmed the said alienation? 4. Or was an application to the Validation Court the only means of rendering the said alienation effective? F. Earl, for the appellant company :— Many questions are raised on the statement of the case, but there is practically but one-viz., whether a transfer by some, but not all, the owners of land the title to which was a certificate of title under "The Native Land Act, 1880," and which land was therefore customary land, but by "The Native S.C. 1901. In re TAHANUI BLOCK NO. 2. S.C. 1901. In re TAHANUI Land Court Act, 1894," became subject to "The Land Transfer Act, 1885," is or is not capable of confirmation under the Act of 1894. The Judge of the Native Land Court relied upon BLOCK NO. 2. Section 56, and held that the alienation was not effected in accordance with the law in force at the time of the execution of the transfer. It is submitted (1) that the alienation was in accordance with the law in force at the time, within the true meaning of section 56; and (2) that the effect of sections 73 and 74 is to enable such transactions to receive confirmation, notwithstanding section 56. As to (1), the words of section 56 are of a general character, and their probable meaning is to except all unlawful or prohibited transactions. "The Native Land Act, 1873," provided a means whereby customary land might pass after all the owners had joined in the sale, but not otherwise. "The Native Land Court Act Amendment Act, 1888," specifically recognised the purchase of such land by stages, providing that where several deeds together effected the alienation of the whole of the land, title might be acquired. The result of the legislation up to and including the Act just quoted is that a transfer of customary land by less than the whole of the owners was not unlawful, or prohibited in any senseit was simply incomplete. It was a lawful beginning of a transaction which, when completed by the signature of the remaining owners, would, subject to certain formalities, have full operation to confer title. As to (2), even if this transaction were incapable of confirmation by reason of section 56, if that section stood alone, it is clear that section 73 gives all such transactions full right to confirmation. This section sweeps away customary titles and their attendant disabilities. and transforms all such to titles under "The Land Transfer Act, 1885," with power to the Chief Judge to antevest the new title. The statutory restrictions are not to be brought forward -In re The Puhatikotiko No. 1 Block(1) and In re Whakakoro No. 2 Block(2)--but outstanding equities are. The second paragraph specifically authorises a purchaser of interests in customary land to apply for consideration, and, upon confirma S.C. 1901. In re TAHANUI tion being granted, for registration under "The Land Transfer Act, 1885." The present purchaser, duly applying under section 73, and having fulfilled the requirements of section 53, is fully entitled to confirmation. There is no class of transac- BLOCK No. 2. tion to which section 73 can apply other than the present. That the case of a purchase of less than the whole of the interests is contemplated is made still clearer by section 74. Sections 73 and 74 refer to customary land only, and to past transactions. CONOLLY, J. As to the first question, I am of opinion that the appellants had a right to apply to the Native Land Court for confirmation of the alienation upon which they rely. By "The Native Land Court Act, 1894," section 73, "any person claiming to "have acquired an interest in customary land by virtue of any alienation prior to the coming into operation of this Act may apply to the Court to have such alienation confirmed." It follows that the Court should hear the application, and has jurisdiction to confirm the alienation or to refuse to confirm it. 66 As to the second question, it is clear that the alienation was not in accordance with the law in force at the time of the execution of the deed. The deed is dated the 2nd of August, 1884, and two of the Natives, at least, signed it on that day. At that time “ The Native Land Act, 1873," and "The Native Land Court Act, 1880," were in force, and, as has been pointed out by Judge Scannell in the Court below, certificates of title under the latter Act had the same force and effect, and may be dealt with, as memorials of ownership under the Act of 1873. The Natives who purported to alienate their interests were some only of the owners of the land under certificate of title under the Act of 1880, and, therefore, were disabled from effecting any such alienation. It was strongly urged by counsel for the applicants that, even if the deed was not in accordance with "The Native Land Act, 1873," any defect in it was cured by "The Native Land Court Act, 1894," section 73, since that section makes every Native owner of S.C. 1901. In re TAHANUI customary land proprietor thereof under the Land Transfer Act for an estate of fee-simple in possession; but it is to be observed that this section is not retrospective. It is distinct BLOCK NO. 2. in enacting that land which is customary land at the date of the coming into operation of this Act shall thenceforth be and become subject to the provisions of the Land Transfer Act. Whatever effect this may have upon dealings by individual Natives with their interests in lands since the 23rd of October, 1894, it can have none upon such as the deed of which confirmation has been sought. That deed, not being in accordance with the law at the time of its execution, was one which the Court could not properly confirm. In the case of In re Whakakoro No. 2 Block(1), the transfer which the District Land Registrar had refused to register, and which the Court held that he should register, was executed after the passing of the Act of 1894, and therefore is not contrary to my opinion on the present case. This also answers the third question. The Native Land Court has jurisdiction to hear the application, but, in my opinion, was right in dismissing it. As to the fourth question, I am of opinion that, as the applicants proceeded in the Native Land Court, and have appealed from its decision to the Native Appellate Court, they cannot now apply to the Validation Court; but it is not necessary to decide this, since, practically, all that I am asked to give an opinion upon is whether the applicants were entitled to confirmation by the Native Land Court of the title which the deed purports to give, and I am clearly of opinion that they were not so entitled. Solicitor for the appellants: F. Earl (Auckland). (1) 18 N.Z. L.R. 697. PEACOCKE AND PEACOCKE r. AUCKLAND DISTRICT v. LAND REGISTRAR. Mortgage Statutes of Limitation-Presumption of Payment-Barring of A mortgagee received no payment, either on account of principal or interest, for over twenty years. The land remained unoccupied during the whole time. Held, That, though there had been absence of possession on the part of the mortgagee for upwards of twenty years, yet, as no one had been in possession adversely to him, the Statute of Limitations did not run against him, and that he could therefore give a good title to a purchaser, in exercise of his power of sale under the mortgage. Held, also, "That a sale by a mortgagee in exercise of the powers vested in him is not a proceeding to recover mortgage money within the meaning of section 40 of 3 & 4 Will. IV., c. 27. By deed of mortgage dated the 11th of November, 1864, Thomas Taylor, of Auckland, conveyed to David Nathan, also of Auckland, a parcel of land situated in the suburbs of that town, for the purpose of securing the repayment to Nathan of the sum of £50 on the 11th of November, 1865, together with interest thereon, payable quarterly, at the rate of £14 per centum per annum. The deed contained a proviso that if default should be made in payment of interest or principal, or any portion thereof, for the space of one month after any of the days fixed for payment, the mortgagee might forthwith or at any time thereafter exercise the power of sale vested in mortgagees by section 19 of the Conveyancing Ordinance of New Zealand, No. 10 of Session No. 2. Taylor, the mortgagor, was supposed to have died shortly after the execution of the mortgage deed, and no principal or interest was ever paid to the mortgagee. There had been no acknowledgment of the debt by the mortgagor other than the VOL. XX. -6. S.C. IN BANCO. AUCKLAND. 1901. August 7. CONOLLY, J. |