The Pamphlet Collection of Sir Robert Stout: Volume 71
VII.—Mini Kerekere's Case
VII.—Mini Kerekere's Case.
Mini Kerekere, a married minor, 19 years of age, sold to Mr Ferris, as agent, a share then vested by order of the Governor-in-Council in his father, Peka Kerekere, as trustee. By the statutes then in force relating to the estates of Maori infants, the share of the infant Mini was, by virtue of such order, absolutely vested in the trustee, with full powers of management, and also full powers of sale. During the minority the infant had no right whatever left in him. The trustee was entitled out of the proceeds of the estate to pay what he pleased for the support or education of the minor, and the rest he was bound to invest in securities, but the minor had no right during his minority to interfere in any way, either in the management, or in the sale, or in the application of the proceeds of sale.
When Mr Ferris was negotiating with Mini Kerekere for the purchase, he had full notice from Mr Frederick Jones that Mini was under age: but, notwithstanding that notice, and although he (Mr Ferris) might have settled the question by stepping across the road from his own office to the Native Land Registry, he preferred to act on his own unassisted judgment concerning Mini's age.
He took Mini's signature and paid him the purchase money £12, but he also y, the very unusual precaution of putting clause in the statutory declaration signed the minor that he, the minor was of fuiti A few days after the sale Peka Keri the father and trustee, having heard of transaction went to Mr Ferris, up ba him for taking his son's signature a transfer, and he (Peka) as trustee verb repudiated it as a transfer of any inters the share. The deed of sale signed by minor was afterwards taken before a Fn Commissioner and is alleged to have i passed by him without any notice t trustee, Peka Kerekere, and thus i Kerekere did not attend and resist the missioner's certificate being given.
Mini is now of full age, but he has n during the interval between the end of minority and the sitting of the Validi Court (7 years) taken any steps to set i his deed of transfer or repudiate the His own statement is that he did not d because he was ignorant that he had right to do so.
Under these circumstances Mr Dana that Mini Kerekere's transfer conm nothing. Secondly that the transaction at once repudiated by the Trustee, and i such repudiation renders the transfer m that even without any repudiation s contract by a Maori minor is absola void and not (as was formerly the case n similar contracts under English law) n able only, and that to treat it only voidable and now confirmed, cause Mini has allowed seven years to e without repudiating it would be contran New Zealand public policy. That pi Mr Day contends is shewn all through legislation affecting the Maori race to be policy of protection to the Maori against own imprudence and his liability to I cheated by the more cunning, if not unscrupulous European. Mr Lysnar, co for the purchaser, insisted that the m could sell and did sell by a voidable a tract, and that not having avoided ui seven years it would be according to English law valid and beyond repudiation by b Numerous authorities, both English and the New Zealand Courts, were cited by Day and Mr Lysnar. The English ca showed that it was the law in England i to the year 1874 that if a minor sold n estate then rested in himself his contract u not void, but voidable only, and that sad contract, not repudiated by him within reasonable time after he came of ago, wa be treated thenceforth as binding upon him No case, however, was cited to show [unclear: whethere] page 7 a sale by a minor, whose whole estate, both legal and equitable, was at the time of the contract of sale vested in a trustee, would or would not avail to pass any estate or interest either present or prospective. There are no recent English authorities, because the English people overruled the previous decisions of English judges declared in 1874 through their Legislature by statute that all such contracts by minors are absolutely void, and no longer merely voidable—a fact which shews that the current of English thought is against allowing usurers and unscrupulous speculators any longer to tempt youths of fortune to part with their estate before they have reached years of discretion.
One colonial authority was relied on by Mr Lysnar: Johnston v. McKay, L.R. 2, Supreme Court 156 (year 1884, N.Z.), as showing that a sale by a Native whilst he was a minor was held to be only a voidable contract and therefore good against a purchase from the same Native after he came of age; hut that authority is not in point to the present case. The only point decided in that case was that the "Statute of pretenced titles" (passed in the reign of Henry VIII) forbids and renders void any transfer of his interest by an owner whose land is out of his possession and held by some person adversely to him, and the Chief Justice in that case held that the possession by the plaintiff Johnston, whether that possession was founded on a good title or not, was adverse to the Maori minor from the date of Johnston's purchase from him whether that purchase was lawful or not, and that such adverse possession rendered void the subsequent sale by that same Native to Mr McKay. The decision simply amounts to this—that even if the Maori might himself have ejected Johnston, which clearly he could do if he had done nothing to validate the voidable contract, purchaser McKay could not eject Johnston. That is all that the case decided. But even if it decided, as it is contended, that the contract of a Maori minor to sell his estate vested in himself was voidable and not void, such decision would still fall short of this case of Mini Kerekere; for his estate when he contracted to sell it was not vested in himself, but in his trustee. I see no words in the judgment of the Chief Justice in the above cited case of Johnston v. McKay, showing that if Johnston had purchased from the infant an estate then vested in his trustee, the contract so made would have passed any estate whatever to Johnston. Johnston v. McKay is therefore not an authority governing this case. We think also that to certify in favor of this sale would be to tear up by the roots all the statutable provisions for the protection o Maori minors. Even after Maoris arrive at man's estate they are, as Mr Day-urged upon us, looked upon as still under tutelage and protection. They are frequently restricted from selling at all. They can make no transfer, except in presence of special classes of witnesses selected as reliable persons, who will see that they are treated fairly. Even then the sale is not complete; for an examination has still to take place before a Frauds' Commissioner, whose very designation tells us what his duties are as to the protection of the Maori. If such be the provisions of the law as to adult Maoris parting with their estate, what a mockery it would be to hold that a Maori youth just arrived at the time of life when money is eagerly sought for for his pleasures and when he is most sure to-listen to the voice of the tempter, may sell his estate even though that estate be then vested in a trustee for protection against that very contingency. Ferris bought from, Mini Kerekere knowing him to be a minor. He pretended to disbelieve Mr Jones' warning, but he took care to make Mini's declaration state that Mini was of full age, so that he could prosecute Mini for perjury in case Mini, when he reached majority, should repudiate the bargain.
A point was made by Mr Lysnar that the order-in-Council appointing Peka Kerekere as trustee was not in existence at the date of the sale by Mini. Mr Day, however, showed us that according to New Zealand decisions the estate was in anticipation of the order-in-Council, contingently vested in Peka Kerekere by the recommendation of the Native Land Court that an order-in-Council should be issued, and the subsequent issue of the order-in-Council confirmed that recommendation, and gives a title from its date just as a decree of a court of justice will defeat every attempt pending litigation to render such decree ineffectual when it comes.