SUPREME COURT.
Monday. I9th June.
CIVIL SITTINGS.
Before his Honour Mr. Justice Chubb and a jury of four.
Hendle and Others v. Qualtrough and Another.
Mr, Stumm, with him Mr. Fewings (instructed by Messrs. Atthow and McGregor),
for the plaintiffs ; Mr. E. M. Lilley (instructed by Messrs. Roberts and Roberts)
for the defendants.
This was an action in which
William James Hendle, a butcher, residing at Nundah, and his wife, Lucy, and
W. J. Heirdsfield were the plaintiffs, and
Walter H. QuaItrough, a plumber, and
Elizabeth Matilda Qualtrough, widow of William Qualtrough, deceased, were the defendants. The
statement of claim set out that
George HeirdsSeld, in 1866, was the owner of a
piece of land near the corner of
Wickham and Brunswick streets, 14½
perches, being part of subdivision 4 of
block 6 of eastern suburban allotment 71.
On 18th December of that year he applied
to have the land brought under the Real
Property Act of 1861, and requested the
Registrar of Titles to issue the certificate
of title in the name of
William Qualtrough,
his brother-in-law. The latter had given
no consideration for the land, but in pursuance of Heirdsfield's application, the fee
simple of it was transferred to him.
Wm. Qualtrough died on 31st August. 1870,
without having disposed of the land, or of
any estate in it. By his will, dated 4th
July, 1864, and a codicil dated 14th May,
1869, he devised all his real estate to his
wife, Elizabeth Matilda, and
T. B. Stephens,
upon certain trusts. Mr. T. B. Stephens died
in April, 1890, and
Elizabeth Matilda Qualtrough appointed the defendant,
W. H. Qualtrough, as a trustee in his place. Qualtrough
declaring himself a trustee of the lands in
question for
Geo. Heirdsfield. The latter
died in November, 1890, intestate, leaving
surviving him six children. The plaintiff.
Lucy Hendle, was a daughter and
Wm. J.
Heirdsfield a son of
Geo. Heirdsfield. Mrs.
E. M. Qualtrough was their aunt, and Mrs.
Heirdsfield was Mrs. Qualtrough's sister.
About September, 1890, the defendants sold
the land for £2144 5s. net, and
informing
Lucy Hendle that her share
in the proceeds amounted to £350,
paid her £25, and purchased for her a piece
of land at Enoggera, which they alleged cost
£325. They, however, refused to transfer
the latter land to her, or to pay her the balance of the proceeds of the other land.
Plaintiffs claimed that the defendants were
trustees of the land originally held by
Geo.
Heirdsfield for him, and the property having been sold.
Lucy Hendle and
W. J.
Heirdsfield, being two of his children, were
entitled to a one-sixth share respectively of
the proceeds less the amount of
£25 paid to the former, and £100
paid to
W. J. Heirdsfield. The
defendants in their statement of defence
denied that the land had been transferred
to
William Qualtrough, as stated by plaintiffs, and declared that it was purchased
for a valuable consideration. The defendants admitted that they had sold the land,
but denied that they had done so in breach
of trust. The payments of £25 to
Lucy
Hendle and of £100 to
W. J. Heirdsfield,
they said, were charitable gifts, and
the land said to have been bought at Enoggera was settled upon her for the same reason upon trusts which only gave her a life
interest in It. The defendants further
pleaded that the claim, if any, was barred
by the Statute of Frauds and Limitations,
and by laches, delay, and acquiescence on the
part of the plaintiffs.
Mr. Lilley took the preliminary point that
the action was defective for want of parties.
Their case was that
George Heirdsfield, who
was now transferred, made an application
to bring this land under the Real Property
Act in the name of
William Qualtrough, who
was also now dead. They also said that the
transfer was without consideration and that
William Qualtrough was a trustee for
George Heirdsfield and
W. Qualtrough having died,
the two defendants being the trustees under
his will were trustees for him or his children. They also said that the defendants
had declared themselves as trustees of
George Heirdsfield's children. With respect
to the first case, it was clear that if
William Qualtrough had declared himself a trustee
for
George Heirdsfleid these plaintiffs could
not sue without taking out administration of
the estate of
Geo. Heirdsfield. Though
the latter died in 1890 intestate, and left six
children, no administration had been taken
out. He maintained that this action could
only be brought by the administrator of the
estate of
Geo. Heirdsfield, and that the present plaintiffs had no locus standi. If the
plaintiffs now got Judgment against the defendants, it would mean that they would
still be liable to an action by the administrator and by the other children of the deceased.
Mr. Stumm contended that there was
no necessity for the present action to be
brought by an administrator. If Mr. Lilley's objection were valid, which he did not
admit, he could remove all difficulty by asking for the statement of claim to be varied
so as to ask for a declaration that defendants were trustees for
Geo. Heirdsfield.
Mr. Lilley : What right have you to get
that ?
Mr. Stumm said he was entitled to that
because he represented next of kin. In that
capacity he submitted he was entitled to ask
for a declaration of right. He urged, however, that the best way of getting over the
difficulty would be by appointing the Curator
of Intestate Estates either to represent the
estate of
G. Heirdsfield or to be a party to the
action.
Mr. Charmbers (Messrs. Chambers, Bruce,
and McNab), appearing for the Curator, stated
that the Curator was perfectly willing that he
should he added as a defendant, and the
action be proceeded with.
After further argument, his Honour made
an order adding, the Curator as a defendant,
and appointing him to represent the estate
of
G. Heirdsfield for the purposes of the
action.
Mr. Stumm then opened the case for the
plaintiffs, after which evidence was given for
the plaintiffs as follows :
Lucy Hendle, one of the plaintiffs, and
daughter of the late
George Heirdsfield,
stated that Mrs. Qualtrough was her aunt,
and W. H. Qualtrough her cousin. Her
earliest recollections were in connection with
a brick cottage situated on the land in question. She was born there, and lived with
her parents there until her marriage, some
twenty years ago. Her father paid no rent
for the property, and she understood it belonged to him. After his death her mother
continued to live there, and she did not pay
any rent. On one occasion Mrs. Qualtrough
called at their house and asked her mother
for the papers in connection with the proerty, but her mother declined to give them
up. Three or four days after, Mrs. Qualtrough came to the house with the late Mr.
D. F. Roberts, and some documents were
signed. Witness did not know what the
papers were. After that, witness's mother
gave her a tin box, which she said contained
papers with reference to the property. Witness put it in a chest of drawers where it
remained until her mother's death, after
which witness gave it to her brother George.
Just before witness got married. Mrs. Qaultrough asked her it she had the papers, and
offered to give her £50 for them. Witness
told her then that she had given them to her
brother. Mrs. Qualtrough then said she
could not sell the property until she got the
papers. Witness said her brother might
not give them up, and she replied. " We
can compel him to do so." Afterwards she
told witness that she had asked George for
the papers, but he had refused to give them
up. Witness's father died at Dunwich on
29th November, 1890. Prior to that, he
was always drinking on and off. He often
said he wanted to sell the property. Mrs.
Qualtrough said the property belonged to the
children, and she wanted to get the papers
from George so that she could sell it and
divide the proceeds before she died. She
said she could not buy the property herself.
After the sale, she said there was about
£350 coming to them, but she was not going
to give witness or her sister Lizzie the
money, but intended to buy property for
them. On another occasion she said she
had given George £400, which was £50
more than she said she intended giving to
the others. Her brother George died on
30th December, 1890 a month after his
father. Mrs. Qualthrough told witness that
she had bought
Lizzie a house in Simon
street, off Leiehhardt-street, and about the
same time she offered to buy witness one
out at Lutwyche. Witness and her husband
afterwards went to see the house with Mrs.
Qualtrough. The latter told her that she
could have it for £325, and she (Mrs.
Qualtrough) would give her £25, the balance
due to her. Witness said she did not like
it, as it was too far out, and asked her to
buy some property for her at Nundah.
She replied that she would not do that, and
witness would have to take this property
or nothing. Prior to this witness had asked
for the £350 which Mrs. Qualtrough had
told her was coming to her, but she had
declined to give it, saying that she intended
to buy property with it. Witness, when she
found that she could not get the money or
the property where she wanted it decided
to take the Lutwyche property. Mrs. Qualtrough promised to give her the deeds, but
never did so.
At this stage the court adjourned until 10
o'clock on the following morning.
SUPREME COURT. (1899, June 20). The Brisbane Courier (Qld. : 1864 - 1933), p. 7.
TROVE