The Pamphlet Collection of Sir Robert Stout: Volume 71
V.—Rena Parewhai's Cash
V.—Rena Parewhai's Cash
In this case a judgment was recovered the Supreme Court against Rena Parwii and her individual share in this block k under memorial of ownership under the [unclear: Act] of 1873, was seized and sold by the [unclear: sherif] William Cooper in 1890 It was [unclear: admitted] that the judgment and sheriff's sale were in regular form, so that had the defends been a European the property would h passed. But Mr Day argued that inisai as this undivided share could not have be lawfully sold by Rena Parewhai hen without the assent of the other owners, [unclear: &c.] &c.; and as section 88 of the Act of [unclear: 18] page 5 prevented such a share being lawfully seized and sold by a sheriff under judgment of any Court, and as since the repeal of that section of the Act of 1873 the share would still be unsaleable by a sheriff, at all events without the like assent and compliance with requirements as on a sale by Rena herself; therefore the seizure and sale by the sheriff in this case must be treated as unlawful, and the sheriff's deed could pass no estate, and Parliament could not have intended that this kind of illegality should be validated.
Mr Day cited many cases decided in the Superme Court showing that Rena Parewhai's share would not have passed to her Assignee in Bankruptcy (a bankruptcy being & general execution for all creditors) and argued that these cases all applied as much to Sheriffs seizures and sales as to seizures and sales in bankruptcy. He cited the Interpretation Act of 1878 to show that the repeat of the Act of 1873 could not affect the nature and incidents of titles held under memorial of ownership, and that as no emotion under a judgment could during the lifetime of the statute affect such a title, neither could it after its repeat. He cited also cases in the Supreme Curt showing that land under restrictions is not seizeable and saleable by the Sheriff, and lastly he cited Poaka v. Ward to show that no subsequent legislation has altered the status of any title under the Act of 1873, and therefore, (in spite of section 1(3 of the Act of 1888) such title remains unsaleable by the owners and unseizable by the Sheriff.
It certainly appears to me that if this Court is to be guided in this matter by the divisions of the Supreme Court, then the secure and sale of Rena Parewhai's share by the Sheriff ought to be held unlawful, but we may he asked why we should follow these desisions (affecting only only one purchase in this block), while at the same time we consider ourselves entitled not to follow Poaka v. Ward, which decision avoids every [unclear: sale] of every share?
Our reply to these questions is:—That although we decided that this statute authorizes validation notwithstanding the case of Poaka v. Ward, or rather perhaps in ownsequence of that decision, it does not follow that the Legislature intended us to treat as proper for validation every kind of illegal transaction. The Sheriff is a public officer deriving his right of sale from the law-only. He is not an agent of the defendant Rena Parewhai to sell with her assent. The law gives him a power to convey estates compulsorily under certain circumstances to a purchaser against the owner's will. Such a power can only exist where the law gives it, and therefore if in Rena Parewhai's case the law gave no power to the Sheriff, we could not treat his sale as a transfer of her interest. The law gave no such power to the Sheriff. This Validation Act would apply to sales voluntarily made, by the parties themselves, unlawful, it is true, but made bona fide and in an honest and straight forward transaction agreed to by all the parties at the time it was made. Rena Parewhai's was not such a sale. It was an illegal compulsory sale by a person who was not her agent, nor in any way empowered by law to sign for her.
We now come to four shares claimed against Mr Tiffen on behalf of minors.