TSANG CHUEN Vs. LI PO KWAI

JUDGEMENT

(1.) The question at issue on this appeal is whether the respondent has shown a title in himself to the entirety of certain leasehold properties in Hong Kong, freed and discharged from a legal mortgage upon an undivided moiety thereof held by the appellant from Li Nga Ching, the second son of the respondent. In the Courts of Hong Kong, the respondent has established his claim. The appellant's title as mortgagee has, following deliverances of great elaboration, been set aside, and he has been ordered to reassign to the respondent freed from his mortgage the undivided moiety in question. The order to that effect made on 8 April 1930 by the Supreme Court of Hong Kong in its original jurisdiction was, on appeal, affirmed in the Full Court by its judgment of 28 August 1930. This is the mortgagee's appeal therefrom.

(2.) The respondent is a Chinaman of position resident in Hong Kong. His dispute with the appellant concerns an undivided moiety of one of three separate parcels of leasehold properties, held under Crown leases for long terms of which in 1912 the respondent became possessed, on the division of his deceased father's estate. The particular leaseholds the undivided moiety of which is now in question are described in terms both elaborate and identical in a deed of assignment of them of 9 March 1917 and in a memorial of that deed duly registered under the Land Registration Ordinance of 1844. For present purposes it will suffice compendiously to describe the properties as Nos. 18 and 20, Wing Kut Street, Victoria, Hong Kong, and it will be convenient hereafter to refer to them as the properties in question.

(3.) By the deed of 9 March 1917 these properties were assigned by the respondent to one Li Kan and to Li Nga Ching already mentioned as joint tenants for the residues of the terms granted by the Crown leases under which they are held at the apportioned rents adjusted with the Crown. The deed upon the terms of which much in this case will be found to depend is one of purchase and sale. The respondent party to it of the one part, and, as such, described throughout as "the vendor," is named as ''Li Hung Cheung alias Li Po Kwai of Victoria in the Colony of Hong Kong, gentleman." The parties to it of the other part and as such described throughout as "the purchasers" are named and described as "Li Kan and Li Nga Ching, both of Victoria aforesaid, gentlemen." The deed contains a recital that "the vendor" has agreed with "the purchasers" for the sale to them of the properties in question at the price of $16,000. The assignment is expressed to be made in pursuance of that agreement and in consideration of $16,000 to the vendor then paid by the purchasers. The receipt of the $16,000 is acknowledged by the respondent as vendor in the body of the deed. It is made also the subject of a separate endorsement signed by the respondent in his vendor name and witnessed by his solicitor. The assignment of the properties in terms extends to all the estate right title interest property claim and demand whatsoever of the vendor in or to the same and the deed contains the usual full covenants for title given on a sale by a vendor to purchasers as also a covenant by the purchasers with the vendor to pay the apportioned rents and perform the covenants in the leases under which the properties in question are held so far as relating to these properties, with a further covenant by them to indemnify the vendor against such rents and covenants.