11 VLR 13MORRISSY v. CLEMENTS Supreme Court of Victoria (Full Court) MOLESWORTH, and HIGINBOTHAM, JJ. September 24, 26, 1884. October 8, 1884. March 4, 05 March 1885Statute of Frauds — "Transfer of Land Statute" (No. 301), s. 42 — Transfer by way of mortgage — Lease with right of repurchase — Cancellation — Right of representative of lessee — Evidence of interested party.
A. borrowed 270l. from B. at 8 per cent. per annum interest, and transferred absolutely to B. certain lands held under the "Transfer of Land Statute" (No. 301), and took an unregistered lease of them for three years, at a rent equal to 8 per cent. per annum on the 270l., with an option of repurchase at the end of the term for the price of 270l. Shortly afterwards the lease was destroyed by A. in B.’s presence, as B. alleged upon an oral agreement that in consideration of B.’s lending A. a sum of 30l. on his personal security only, A. should give up his tenancy under the lease, and his right of repurchase. Afterwards A. remained in occupation of the land, as alleged by B., as tenant-at-will only, but paid rent at the same rate as reserved in the lease. A. having died, his widow and administratrix, C., continued in possession of the land, and paid B. rent at the same rate. At the expiration of the three years C. claimed to exercise the option of re-purchase, and tendered to B. the 270l., which B. refused to accept, and claimed the lands as his.