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Decisions of the Superior Courts of New South Wales, 1788-1899

Crossley v. Edwards et al. [1804] NSWKR 4; [1804] NSWSupC 4

trespass to land - land law, Crown grants - land law, conditional title

Court of Civil Jurisdiction

Atkins J.A., 7 and 8 August 1804

Source: Sydney Gazette, 26 August 1804, 2 [1]

During the late sittings of the civil court cause appeared, which, as it engaged the most serious attention of a crowded auditory, we shall here give a concise statement.

This was an action of trespass and ejectment brought by Mr George Crossley, to dispossess the present occupiers of 100 acres of land in the district of Hawkesbury, known by the name of Gypsies Retreat, and of 25 acres commonly called Endeavour Farm. The defendants were Messrs Edwards, Faithful, James Baker, and William Baker, the latter of whom prayed the court for permission to defend alone, as the other defendants held their portions of the grounds under him respectively; with which the court thought proper to comply.

The plaintiff then proceeded to state his case, and grounded his claim upon a lease granted to him by the attorney of Mr William Wright Bampton, formerly of this colony, whose title he contended to be a true one, as having become the purchaser of the above grounds under the authority of grants that had not been cancelled before or since. Here he produced a grant made in the year 1795, by his Honor Lieutenant Governor, then Acting Governor, Patterson to Stephen Smith, Samuel Potter, John Curry, and Richard Roome for 25 acres each, and also of another for 25 acres, the grantee being then private soldiers in the New South Wales Corps, whose assignment he likewise produced to Mr Baker, storekeeper, dated also in 1795; and Mr Baker's release to Mr William Wright Bampton, for the validity of whose title he now therefore contended.

Mr Baker being called by the plaintiff stated that he had purchased the land of the original grantees and had himself proceeded to cultivate; that he had erected a tent hut with a chimney thereon, and sowed in wheat a certain portion, which he also reaped; but admitted that the lands had not been previously occupied, and that he had afterwards conveyed over to Mr Bampton the said grounds for a certain valuable consideration.

Richard Roome, one of the grantees, deposed, that he was present when the 100 acres were measured, 25 of which were assigned to him, and that the other grantees were included in the allotment of the above 100 acres. That he never had resided on, [or] proceeded to the cultivation of his proportion, which he sold to Mr Baker, storekeeper, as he had never heard any objection started to the sale of lands so granted to any individual belonging to the corps, many of which were disposed of, and others still retained. The other grants specified in the allotments had been disposed of under like circumstances.

Mr D.D. Mann, Principal Clerk to the Governor secretary, appeared with the official Register, for which the court had applied to [catch] his Excellency by letter, and the grant produced, upon being compared, was found to be a true copy.

Being asked by the plaintiff if any thing appeared in the Register whereby the said grant was cancelled, Mr Mann declared there did not, and admitted that in other parts of the book wherein grants are cancelled it generally does appear, in the words "cancelled, a new grant being given, etc.". This was the case in three instances referred to, but no signature appeared to either. Being asked by the court whether he conceived the Governor or his Excellency's Secretary's signature necessary to the cancel of a grant, he replied "certainly"; and being again interrogated whether it was his opinion that the grants of Gypsies Retreat and Endeavour Farm still remained in full power and effect, he answered that he did, provided the conditions under which they were obtained had been complied with.

The plaintiff called the witness to prove that the quit rents had been paid by the attorney of Mr William Wright Bampton from the year 1801 up to the last muster, and he closed his evidence.

Mr Baker open his defence by declaring that he had purchased the lands under the sanction and authority of a grant made by his Excellency Governor Hunter to Major Joseph Foveaux, dated in 1799, wherein the validity of the original grant is set aside, by reason of the conditions under which it was made not being complied with; and called on Mr Mann, who said he knew instances of grants being cancelled in the Register, the copies of which were still in the possession of individuals, though the cancel might not appear upon the face of such grants. He related that the acting Surveyor General, Mr Grimes, after his Excellency Governor Hunter's departure from the colony, had spoken to him concerning one or both of these grants, and upon examining the Register observed that they should have been cancelled, and here terminated the evidence.

The court, after a long and minute retrospection of the evidence, re-opened, when the Judge Advocate informed the parties at issue they were of opinion that the grant made by his Excellency Governor Hunter to Major Foveaux was valid, inasmuch as that he had therein stated his reasons for cancelling the original grant to Stephen Smith etc., viz. that the said original grantees had not, in compliance with the specific terms therein required, proceeded to the cultivation or residing thereon, whereupon a verdict was given for the defendant with costs of suit.

Note

[1] Land titles in early New South Wales were frequently very confused, often because of doubtful conveyancing practices. Land was sold for small sums, evidenced simply by the parties writing on the back of the Crown grant document. That document was sometimes lost. In other cases, the source of the doubtful title began at its very source, the Crown grant made by the Governor. Most early grants of land by the Crown were conditional, usually under a requirement that the land would be cleared and a house built. When the condition was breached, the grant should have been cancelled and the land reissued to another person. But if that happened, two Crown grant documents could be in circulation over the same land, and the question sometimes arose as to which of those titles was valid. Informal practices in the government offices made these cases even more complex.

On appeal to the Court of Appeal in this case, the Governor confirmed the decision of the Court of Civil Jurisdiction. See B. Kercher, Debt, Seduction and Other Disasters: the Birth of Civil Law in Convict N.S.W. (Federation Press, 1996) at 128-129. On this case, see also Court of Civil Jurisdiction Proceedings, 1788-1814, 7-8 August 1804, State Records N.S.W., 2/8148; 8 August 1804, and P.G. King, Letter Book, Vol. 4, A2019, Mitchell Library, 407.

Published by the Division of Law, Macquarie University