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Colonial Cases

Trannack v. Kofod, 1876

[land law]

Trannack v. Kofod

Danish Consular Court, Shanghai
MacGregor, 10 July 1876
Source: The North China Herald, 15 July 1876



Shanghai, 10th July

Before JOHN MACGREGOR, Esq., Vice-Consul-in-charge.

Me. G. J. HELLAND, Mr. A. A. KRAUSS, Assessors.


   Mr. WAINEWRIGHT appeared for the plaintiff.

   Mr. HANNEN appeared for the defendant.

   This was an action to recover certain property at Hongkew.  The plaintiff follows no occupation, and is at present resident at Shanghai; the defendant is a pilot living at Hongkew.

   The plaintiff filed


   The first five paragraphs of which set forth that on the 13th day of February, 1868, Richard George Wade Trannack, the father of the plaintiff, duly made and executed his will, and divided his property among his son (the plaintiff), his daughter (Mrs. Margaret Ann Kofod, wife of the defendant), and his nephew, Richard James Trannack, Custom House officer.  Under the will, William Trannack, of London, and Joseph Lonsddale of Plymouth, were appointed trustees and executors.

   The sixth paragraph explained that two storehouses in Hongkew, mentioned in the will as being leased to Mr. Keswick, were situated on the property devised to Mrs. Margaret Ann Kofod and her heirs.  Paragraphs seven, eight, and nine went on to say that the rent of the property had been received by the manager, in Shanghai, of the Chartered Mercantile Bank of India, London and China, and that in accordance with the will he had paid Margaret Ann Kofod one hundred Shanghai taels per quarter of a year being her portion of the rent payable to her.  The remainder of the rent was devised to the plaintiff.  Margaret Ann Kofod died on the 11th of March, 1869.

   The remainder of the petition was as follows.

10. The Defendant alleges that by a deed dated the 14th say of September, 1868 (the full particulars whereof are at present unknown to the Plain tiff), he, the defendant, was constituted an executor and trustee, jointly with the said William Teaneck, of the said will of the said Testator.

11.  On or about the 3rd of March, 1874, the defendant claiming to act as executor in or of the estate of the said testator, transferred to himself in the said books for the registration of land mentioned in the 6th paragraph of this petition, the said lot or parcel of land number 266, also mentioned in s aid paragraph, to hold the same land to himself as owner thereof.  The said transfer was made without the knowledge or consent of the plaintiff.

12.  It also appears from the said register books, that by deed dated the 1st day of October, 1875, the said lot of land numbered 266 was together with certain other lots of land mortgaged by the defendant to Dr. H. Macartney to secure Taels 5,000 and interest.

13.  The plaintiff attained the age of twenty one years on the 10th of August, 1870. At that date he was astern from Shanghai, and he did not come to Shanghai until the month of January, 1876.

14. The plaintiff contends that under and by virtue of the said will and codicil he became on the death of the said testator the absoluter or sole owner of the  said lot or parcel of land number 266, subject to the life interest of the said Margaret Ann Kofod in one half of the rent and profits thereof, and that the defendant never had any beneficial interest in the said land, or in the rent an d profits thereof, and that he had no right or power to make the transfer to himself mentioned in paragraph 11 of this petition, or the mortgage mentioned in paragraph 12 of this petition, and that the payments made to the defendant our of the rent and profits of  the  said premises since the death of the said Margaret Ann Kofod  have been made in error.

15. The plaintiff has applied to the defendant to assign or transfer to him the said lot of land n numbered 266, and to pay to him the sum of taels 2,700 S.S., being to total amount as aforesaid paid to the defendant out of the rents and profits of the said premises since the death of the said Margaret Ann Kofod; but the defendant has refused to make the said transfer or to pay the said sum or any part thereof.

   The plaintiff therefore prayed that the defendant should transfer to him  the lot of land numbered 266, freed and discharged from the said mortgage to Dr. H. Macartney and from all other charges and incumbrances created by him, as w ell as the payment b y the defendant of the  said Tls. 2,700, and the costs of the suit.

   In his


   The defendant admitted the correctness of the first seven paragraphs of the petition, with the exception that he averred the rents mentioned  in the seventh paragraph were paid to the manager for the time being of the Chartered Mercantile bank of India, London and China under a power of Attorney from William Trannack, one of the executors of the will of the late Richard George Wade Trannack, to the late Mr. R. B. Baker, who died in the year 1874, and that since the date of the said R. B. Baker's death the defendant was ignorant of what authority the said Bank held to collect the said rents.

   As to the 8th paragraph of the plaintiff's petition, the defendant acknowledges the payments therein specified, but he says that by a letter, the date whereof he cannot at present specify, written by the plain tiff to the manager for the time being at the said bank, which said letter is in possession of the said bank, the s aid manager was authorized to pay the  said sum of Taels 100 per quarter to the defendant, and that the said letter was written by the said plaintiff after he came of age and after the death of the said Margaret Ann Kofod.

3.  The defendant admits paragraphs 9, 10, 11, 12, and 13 of the plaintiff's petition, but the defendant alleges that the transfer alluded to in the eleventh paragraph of the said petition was communicated to the plaintiff as soon after as was practical le, and he does not admit that it was made without the knowledge and consent of the plaintiff.

4.  The defendant does not admit paragraph 14 of the said petition, but on the contrary he contends that under and by virtue of the will and codicil of the said Richard George Wade Trannack, the legal estate in the whole of the testator's property at Hongkew passed to his (the defendant's) late wife, subject to the interest of the plaintiff in one half of the rents on the buildings in lot No. 266 during the remainder of the present lease; and that the legal estate in the said property at Hongkew, subject to the said interest of the plaintiff, passed upon the death of his late wife to him, the defendant, partly in his own right, and partly in trust for such persons and in such proportion as by Danish Law is ordained; and he says that the payments mentioned in the said 14th paragraph and amounting to the sum of Tls. 2,700 were made to the defendant with the knowledge and consent of the plaintiff, and that they cannot be recovered even if the plaintiff's construction of the said will of the said Richard George Wade Trannack be correct.

5. And the defendant  further says that previous to the time at which he transferred lot No. 266 into his (the defendant's) name, he had transferred a lot or parcel of land, registered  in the books for the registration of land at Her Britannic Majesty's Consulate at Shanghai, as lot No. 742, into the name of the plaintiff; and he says that these two transfers, together with the  payments which he had made or authorized of the rents of the said lot No. 742 to the plaintiff, were part of one entire arrangements which he (the defendant) carried out, and in which he always believed, until about the month of March, 1876, the plaintiff acquiesced; and he says that he carried out the said arrangement without enquiring about his or his wife's legal rights under the will of the said Richard George Wade Trannack, on the understanding and in the belief that the plaintiff agreed to such arrangement as a whole.

6.  Defendant contends that under and by virtue of the said will, Margaret Ann Kofod , became, on the death of the testator, the absolute or sole owner of the  said parcel of land No. 742, and that he (the defendant) became on the death of the said Margaret Ann Kofod, the legal owner of the said parcel of land, and that he transferred the same into the name of the  said plain tiff, under a mistake and in the belief that the plaintiff consented to the transfer of lot No. 266 into his (the defendant's) name, and also consented and agreed to the payment to the defendant of the  said sum of Tls. 100 per quarter,. And he says that the payments of the rent of the said lot No. 742 made to the plain tiff, since the death of the said Richard George Wade Trannnack, have been made in error.

7. Upon the plaintiff's demanding of the defendant the transfer of lot No. 2y66 and the payment of the said sum of Tls. 2,700, the plaintiff demanded of the plaintiff the re-transfer of lot No. 742, and the payment of the sum of Tls. 12,000, being the total amount as aforesaid paid to the plaintiff as rent for lot No. 742, since the death of the said Richard George Wade Trannack, but the plaintiff has refused to make the said re-transfer or to pay the said sum or any part thereof.

   The defendant therefore prays:

  1. That all further proceedings in this action be stayed until the plaintiff has submitted to the jurisdiction of this Court in respect of the rep-transfer of lot No. 742 and the payment of the said sum of Taels 12,000, and has given such security as to the Court seems fit for the performance on his part of such Decree as the Court may make in the premises.
  2. That upon his so submitting and giving such security, the plaintiff may be ordered to re-transfer to the defendant in the said books for the registration of land at Her Britannic Majesty's Consulate, at Shanghai, the said lot or parcel of land No. 266, freed from all incumbrabces whatever, if any, created, occasioned, or made by, or on account of, the plaintiff.
  3. That the plaintiff may be ordered to pay to the defendant the said sum of Tls. 12,000, or such other sum as may be found due from the plaintiff to the defendant.
  4. That the plaintiff's petition may be dismissed, and he be ordered to pay the costs of this suit.
  5. That the defendant may have such further or other relief as the nature of the case may require.

   The VICE-CONSUL, at the outset of the proceedings, observed that the petition and answer had been carefully read over by the Assessors, as well as by himself, and there were certain points on which they would like to have further information before proceeding into the merits of the case.  The limits on which they would like further information, bore mainly upon the prayer of the answer to the petition, viz., that all further proceedings in this action should be stayed, until the plaintiff had submitted to the jurisdiction of the court in respect to the re-transfer of lot numbered 742, and the payment of the sum of Tls. 12,000, and to give such security as the Court seemed fir for the due performance on his part of such decree.   It was the wish of the Court to be better informed as to the freehold dwelling houses and premises the testator devised to his daughter, Margaret Ann Kofod, the wife of the defendant.  Further, he and his colleagues would like to know where the two storehouses the profits or rants of which were originally bequeathed to the plaintiff, but of which under the cookie Mrs. Kofod was to receive half, were situated.  There was, further, the punt that the defendant alleged a general arrangement had been in operation, and doubtless some proof of that arrangement would be given - when and why the arrangement was come to, and how it happened that it was not disturbed until March, 18765, when the plaintiff attained his majority on the 10th of August, 1870.

   Mr. HANNEN - That is a point for the other side to satisfy you upon.  Why the arrangement was not disturbed before, is not for me to show.

   The VICE-CONSUL - We want first to arrive at the fact than an arrangement was come to, and then to know what it was.

   Mr. HANNEN - It seems pretty plain that an arrangement was comer to, but I think it is not for us to show why it was disturbed.

   The VICE-CONSUL - It seems strange that the plaintiff should now wish to disturb it after being silent so long.  In the petition and answer it was stated that the transference of the land in both instances was made by Mr. Kofod, and of that were so, the Court would like to know when the transactions took place, under what authority he acted, and why it was not done by William Trannack, the brother to the testator, who was the executor appointed under the will.  The Court would like some information, on another point, which perhaps in strictness was not before it, but it might be of assistance in arriving at a decision.  The information required was as to what the testators' estate consisted of, and what was the residue referred to in the settlements by the deceased.

   Mr. WAINEWRIGHT said with regard to the information asked for by the Court, fricative to the property left by the deceased and how it had been disposed of since his death, he presumed that both sides were equally willing to satisfy the Court as far as possible.  He produced a plan, but when, by whom, or where it was made, he was unable to say, but he understood that Mr. Kofod was well acquainted with it, and was prepared to admit that it correctly represented the property left by the testator.  The freehold dwelling houses devised to the daughter, Mrs. Kofod, were on the Broadway, and the store hoses were situated on lot 266.

   The VICE-CONSUL - Then it is admitted that the storehouses were situated on Lot 266?

   Mr. WAINEWRIGHT - Yes, and Chinese houses are now built where they formerly were.  As to the arrangement that was  entered into it appeared to him a question entirely for his learned friend to deal with, for if the arrangement could be established, it might be a plea to bar the action altogether.

   Mr. HANNEN said they had not come to the arrangement yet; the Court had first to decide on the prayer in the defendant's petition.  The plaintiff had brought the defendant into the Court and might possibly succeed in his claim and get a verdict for Tls. 2,000, but then the defendant might subsequently take proceedings against the plaintiff in the English Court, and obtain a verdict for the other piece of land and Tls. 12,000, and plaintiff might be penniless and unable to pay.  Coming into an Equity Court, the plaintiff should be prepared to do equity, and it was nothing but reasonable that he should give some security as was asked for in the prayer of the answer.

   Mr.  WAINEWRIGHT - Surely the Court doles not ask me to answer a case that is not yet made.  I have nothing to do with a case that is likely to be brought against my client if he succeeds, and all the Court has now to so is to decide the present issue.
   The VICE-CONSUL - Perhaps you will inform the Court how and when it was that Mr. Kofod transferred this lot 266 to himself, and the other lot to the plaintiff.

   Mr. WAINEWRIGHT - I will put in this title deed and have agreed with my friend that it would be taken as evidence.  (The document was handed in.)  I now call upon Mr. Kofod to explain how he obtained the powers to act as he did.  It is quite impossible for him to be appointed an executor unless by the testator, and that he was not.  A trustee has no power whatever to transfer property in the manner it has been done in this case, and the defendant has taken upon himself powers which he did not possess and has transferred the property to himself.

   Mr HANNEN produced the document under which the defendant had acted.  It was a deed by William Trannack one of the original executors, and recited that Mr. Lonsdale having given up his executorships of the will the defendant was appointed in  his place.

   Mr. WAINEWRIGHT said he should contend that the trustees under the will took no estate whatever, in real property, and with regard to the land in question, they had no power whatever, it being given directly to the devisees - the son, the daughter, and the nephew.  Assuming, however, that the defendant was trustee, he had not right or power to transfer the property to himself.  It was a fact worthy of notice, that the will contained no power for the appointment of new trustees, and he supposed that defendant's appointment had been made under some Act of Parliament.  The appointment conferred no estate whatever to Mr. Kofod, and the will gave no estate to the trustees, and, therefore, any transfer of property by the defendant was perfectly inoperative.

   The VICE-CONSUL - Under the will Wm. Trannack  was both a trustee and an executor.

   Mr.  WAINEWRIGHT - The were no trust of property reposed in the trustees; there was no devise to them in any shape or way in reference to the property in Shanghai.  The house in Devonshire was devised to the trustees to deal with, but that was all.  He should contend that it was real, and not personal estate, that the trustees had no power whatever, and that the devisees received the property direct from the testator.

   Mr. HANNEN alluded to the advantage of considering all in reference to the transference of the two lots of property at the same time,   for the arguments which applied to lot 266 applied equally to lot 742.  Both lots were transferred by the defendant, and the only difference was that the plaintiff received his lot at a prior date.

   Mr. WAINEWRIGHT maintained that they had nothing whatever to do with lot 742.

   The VICE-CONSUL pointed out that lot 742 was part ands parcel of the estate the defendant dealt with.

   Mr.  WAINEWRIGHT - That my client denies and we say there is no ground for such an allegation.

   The VICE-CONSUL asked Mr. Hannen for proof that lot 742 was transferred by the defendant to the plaintiff.

   Mr. WAINEWRGIHT said he had no objection  to admit that it was transferred on the 4th of June, 1869, but that was a separate and distinct transaction, and had nothing to do with lot 266.

   The VICE-CONSUL said the question of the residue was not before the court, but if either party could give any information as to what was understood to constitute the residue, it might be of assistance in arriving at a decision, and the consul would be glad to have it.

   Mr. HANNEN was of the opinion that both Mr. Wainewrighnt and himself would prefer the decision of the Court on the prayer of the answer to the petition before the circumstances of the case were gone into.  His argument was very brief on the point.  The Court was a Court of Equity, and every Court of equity acted on the sound principle, that those who sought relief in equity must be prepared to do equity, and it appeared to him inequitable to pay money over to the plaintiff when hereafter it they proceeded against him for a larger amount, on the same ground and on a subject pertaining to the same will, they might recover, but in reality they might lose all - the amount they claimed and the amount previously paid to him.  That was not equity, and it was only reasonable the plaintiff should give some security.  He quoted from Storey's Equitable Jurisprudence in support of his argument, and on this point he contended he was entitled to the decision of the Court.  He also quoted Rule 554 of the Order in Council for the direction of H.B.M. Supreme Court in support of the forayer contained in the answer.

   Mr. WAINEWRIGHT maintained that the case did not come within the meaning of the rule read by his learned friend; a claim for an entirely different piece of land to the one now in dispute could not be considered a counter claim.  It was a perfectly distinct question altogether; it was not a question of doing equity.  When parties were to do equity, it was only in reference to the subject matter of the action, and lot 742 had nothing whatever to do with the present suit.

   The VICE-CONSUL said it appeared to him that the subject matter of the suit was in reality the will or property bequeathed under the will.  The plaintiff had taken action in connection with one part of the property bequeathed for having been transferred wrongfully; and under the same document, so far as it appeared at present, another portion of the property bequeathed was transferred to him by the same power.  These facts in connection with others mentioned in the petition and answer inferred an understanding as to the division of the property, and the plaintiff having now come forward to disturb the status quo, it appeared to the court that the prayer of the defendant was not unreasonable.

   Mr. WAINEWRIGHT repeated that the transfer of lot 742 which he had admitted was a separate transaction altogether, and had nothing to do with the subject matter of the present action.  The subject mattered now in dispute was not the abstract question of the interpretation of the will, but the recovery of a certain piece of property.

   After consultation with the Assessors, the VICE-CONSUL said it was the opinion of the court, from the documents and the circumstances involved, that the defendant was entitled to ask for the plaintiff to submit to such an order as the Court might make in referenced to lots 742 and 266 they both being on Broadway and having been transferred by the same power.  The decision of the Court would, therefore, be in favour of the prayer in the answer to the petition.

   Mr. HANNEN - Then comes the question of security.

   Mr. WAINEWRIGHT withdrew from the room, and held a private consultation with his client; and on returning said they had decided that they could not accept the jurisdiction of the Court.

   Mr. HANNEN applied for costs.

   Mr. WAINEWRIGHT objected, urging that costs were never allowed in Consular Courts.

   Mr. HANNEN said this was an exceptional case; it was important and intricate, being involved in questions of law.  The defendant had been put to great expense to prepare his case for the Court, and then the plaintiff refused to accept its jurisdiction.

   The VIDE-CONSUL said the case was one of a peculiar nature, and he should take time to consider the application.

   Mr.  WAINEWRIGHT replied that the court had no jurisdiction over his client and could not enforce an order if it were made.

   Mr. HANNEN. - Perhaps somebody else can.

   The proceedings then terminated.

Published by Centre for Comparative Law, History and Governance at Macquarie Law School