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Colonial Cases

Solomon v. Mesny, 1900

[land law]

Solomon v. Mesny

Supreme Court for China and Japan
Hannen CJ, 23 January 1900
Source: North China Herald, 24 January 1900

LAW REPORTS.

H.B.M.'S SUPREME COURT.

Shanghai, 23rd January.

Before Sir Nicholas J. Hannen, Chief Justice.

SOLOMON v. MESNY.

This was a case in which R. J. Solomon, a French-protected subject, sought to recover possession of a lot of land registered at the Consulate, and numbered 1146, from William Mesny, and also asked for an injunction to restrain the defendant from preventing the plaintiff's servants or workmen from repairing the premises. Mr. J. C. Hansen (Messrs. Dowdall, Hansen and McNeill) was for the plaintiff, and Mr. H. P. Wilkinson and Mr. L. E. P. Jones for the defendant.

   The plaintiff's petition showed:-

- Plaintiff is a French protected subject.

- Defendant is a British subject.

- By a deed of mortgage dated 21st September 1893 and made between the defendant of the one part and the Bank of China, Japan and the Straits, Limited, of the other part the defendant who was then the registered owner of that lot known in the books for the registration of land kept at the British Consulate-General at Shanghai as lot 1146 granted and conveyed the said lot of land together with the buildings there on unto the said Bank of China and Japan and the Straits Limited and its assigns by way of mortgage for securing the repayment of a sum of Tls. 3,000 advanced by the said  Bank to the defendant together with interest thereon at eight per cent per annum and the said deed contained a power for the said Bank or its assigns at any time after the 31st day of December 1898 to sell the said land without any further consent on the part of the defendant in case defat should be made in payment of the said capital money or in case some interest due under the said mortgage should be in arrear for one calendar month and it was provided by the same mortgage that notwithstanding any irregularity with regard to any sale made by the said Bank or its assigns under the aforesaid power any such sale should as far as regards the safety and protection  of the purchaser be deemed to be within the aforesaid power and be valid and effectual accordingly and that the remedy of the mortgagor in respect of any irregularity in such sale should be in damages only.

- By a deed dated 24th January 1897and made between the said Bank of China, Japan and the Straits Limited and Frederick Charles Bishop the Liquidator thereof of the one part and the Bank of China and Japan Limited of the other part the said mortgage debt of $3.000 secured by the above-mentioned mortgage of the 21st December 1893 and the interest thereon and the securities for the same were transferred to and became duly invested in the said Bank of China and Japan Limited.

- By a deed dated 21st of January 1897 and made between the defendant of the one part and the Bank of China and Japan Limited of the other part the defendant further charged the same lot of land comprised in the mortgage of the 21st September 1893 with the payment to the said Bank of China and Japan Limited of the further principal sums and interest therein mentioned and it was provided that all the powers including the power of the sale comprised in the Deed of Mortgage of the 21st September 1893 should remain in force and be applicable for securing the payment of the further principal sums and interest as if such powers had been expressly inserted in this Deed of Further Charge.

- On the 3rd of November 1899 the interest due under the said Deed of mortgage and Deed of Further Charge being then several months in arrear the said Bank of China and Japan Limited in exercise of the power of sale vested in them as Mortgagees under the said Mortgage of the 21st September 1893, and the Deed of Further Charge of the 21st January 1897 transferred the whole of the said lot of land No. 1146 to the plaintiff and the plaintiff is now the registered owner of the said lot.

- On the said lot of land are built several Chinese houses and one Chinese hong containing three houses with wings. Most of the said Chinese houses are empty but the said hong is in the occupation of the defendant and his family.

- The plaintiff has required the defendant to give up possession of the premises in his occupation but he refused to do so and the defendant has also intimidated and prevented the plaintiff's workmen from going to the empty houses and putting them in to repair.

  The plaintiff therefore prays: That the defendant may be ordered forthwith to deliver up possession of the premises now in his occupation to the plaintiff.

  That he may be restrained by injunction from preventing or intimidating the plaintiff, his servants and workmen from repairing such of the said houses as are empty.

  That the defendant may be ordered to pay the costs of this suit.

  That the plaintiff may have such further or other relief as to this Court may seem meet.

  The answer was as under:-

  Take notice that the defendant requires you to produce for his inspection the following documents referred to in your petition herein:-

- The Deed of Mortgage dated 21st of September, 1893, alleged to have been made between the defendant of the one part and the bank of China, Japan and the Straits, Limited, of the other part.

- The Deed dated 21st day of January, 1897 alleged to have been made between the Bank of China Japan and the Straits, Limited, and Frederick Clarke Bishop the liquidator thereof of the one part and the Bank of China and Japan Limited of the other part.

- The Deed dated 21st day of January 1897 alleged to have been made between the defendant of the one part and the Bank of China and Japan Limited of the other part.

- The Deed of Transfer and Conveyance by the Bank of China and Japan Limited to the plaintiff referred to in paragraph 6 of the petition. 

  Mr. Hansen, having read the petition and answer in the case, went through the mortgage of the property, and the deed of further charge between the defendant and the Bank of China and Japan. He put other documents in as evidence, and finally said that in the evidence he proposed to call he would show that at the time of the sale there was a great deal more than one month's interest due on the mortgage - in fact, practically three years' interest was due.

  Mr. Cooper, auctioneer, surveyor and land agent, was called and said he received instructions from the Bank with regard to the sale of the land in October of last year. He advertised it in the papers, and there were also printed particulars and conditions of sale of which a copy was produced. The auction took place on the 24th October, 1899, and the property was put up at a limit of Tls. 5,000. It was sold for that sum.

  In cross-examination he said - The Bank determined that limit, not in writing but verbally through Mr. Taylor. He sold it for Tls. 5,000 because it would not fetch any more. There were a dozen or more people at the sale. He did not think Mr. Solomon was present. The land was bought by a Chinese, whose right name witness could not remember, but whom he was in the habit of calling Ling-ding. It was not right to say that there was only one bid on the sale.

  Mr. Wilkinson - Did the Iimit leak out before?

 Witness - No. Certainly not. I don't give things away like that. The bidding started at Tls. 3,000 and went up by tens.  

  Witness went on to say that the last bid but one was for the Bank. There was a Chinese there for them, running up the bidding to Tls 5,000. The limit fixed was not an extravagant one, but it was certainly not a sacrifice. The concluding evidence of this witness was to do with the formal closing of the sale.

  In re-examination the witness said he thought Tls. 5.000 was a fair market price. The land was assessed at Tls. 2,500 a mow.

  Mr. Taylor, who has been manager of the Bank of China and Japan Ltd, for nine or ten months, said it was in accordance with his instructions that the sale took place. He received the purchase money. The witness also went in to the details of Mr. Mesny's debts, as found in the books of the Bank.

  The final evidence was that of Lee Da-fong, a carpenter, who gave evidence as to his going to the property to erect a bamboo fence. He said he was stopped by Mr. Mesny, who took the permit from him.

  This closed the plaintiff's case. Mr. Wilkinson then submitted that the allegations of the petition had not been borne out in evidence. The plaintiff was not the purchaser of the property, he had not required the defendant to give up possession, and his servants or workmen had not been prevented from repairing the premises. The mortgage provided that the sale should be carried out in certain ways, and that, properly done, the purchaser should have certain rights. They had heard of the fixing of a limit of Tls. 5,000, but he would call Mr. Mesny, who would give very good reasons for his idea that the land was worth more.  Finally Mr. Wilkinson maintained that as Mr. Solomon was not the purchaser he could not sue in this case. The person who could sue was Chew Luk-chee.

  Mr. Mesny was then called. He told of how during last November he went to a gentleman to borrow money with the object of repairing the houses on this land, and on the following day called at the Bank and to his surprise, was told that the property was sold. He had not heard of this before. As to the value of the property he worked it out on the basis of the rentals received, and capitalising it at 7 per cent found it amounted to Tls. 900 a year. Besides, the father of the Chinese who had bought the land at the sale had offered him Tls. 8,200 for the Land alone, and would have pulled down the houses and given witness the materials, which were worth Tls. 2,000 more. He gave further general evidence, after which

  Mr. Jones addressed the Court finally.  He said it was laid down that in cases of ejectment the person to apply was the person with the legal title. The mere fact that Mr. Solomon was on the books of the Consulate was not sufficient to warrant him in bringing the action. He mentioned the value that his client put on the property and said Mr. Mesny thought he had been hardly dealt with.

  Mr. Hansen took up the last point, and said that if they looked at the accounts of the Bank they would see that there had never been any interest paid on the mortgage. In fact he did not think that any interest was ever paid on the old mortgage of 1893, and he did not see that there was any undue hardship when the Bank had waited all these years.

  His Lordship asked where Mr. Solomon came in in this case.

  Mr. Hanson said he came in on the transfer on the register. It had always been the practice here when Chinese were concerned to look only at the Register. It would be undesirable to upset the practice of the Court. Of course he represented Chew Zuk-chee, and if necessary would apply to put him in as a party.

  His Lordship made a note of this, and reserved judgment.

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