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

Wills v. Underwood [1805] NSWKR 3; [1804] NSWSupC 3

married women - land law, irregular transfer

Court of Civil Jurisdiction

Atkins J.A., 19 May 1805

Source: Sydney Gazette, 15 May 1805, 2[1]

A trial afterwards came on in which Mrs Wills as plaintiff laid claim by virtue of an assignment upon a certain tenement the situation on the leasehold allotment of Mr James Underwood, which assignment had been made by Richard Morris who afterwards went according to engagement into the seal and fur trade to Bass Straits, but went off in an American vessel. She held the instrument as a security for the payment of a debt contracted, a portion of which was in consideration of money paid the materials necessary to the completion of the building, and therefore contended that as she was the only claimant the house must of course fall to the assignment.

Mr Underwood, in reply, declared the instrument to have been illegally made out, as that Morris had no title whatever to the premises, which he had only assisted to build under contract to one Greenlaw, upon the latter's departing also for the islands in the straits, where it was unfortunately his fate to be drowned. In his own behalf, as well as in that of other creditors of the latter, he came forward to resist the plaintiff's claim upon the assignment, and submitted such proved to the court as he trusted would elucidate the case. Never surely did a more intricate business occupy the attention of the gentlemen before whom this cause appeared. Numerous witnesses were called, the testimony of all whom barely amounting to what is usually termed hearsay evidence. Not a single document could be adduced by either party to direct a judgment, but all seemed in this point to coincide, that Greenlaw had purchased a small thatched cottage upon the scite of the building in dispute, and after clearing it away began to build upon the ground. But after the frame and roof were nearly completed, he went away, leaving Morris to finish it, with authority to obtain wherewithal upon his (Greenlaw's) account to finish it. That Morris had made use of this sanction to some inconsiderable amount, but after Greenlaw's death proceeded at his own expense. In consequence of which he considered the title, as it had never been questioned, to remain with himself alone. Several claims upon the effects of Greenlaw were now submitted to the court, to whom it appeared the deceased had left a competent property.

The Judge Advocate reminded the parties that the procedure in toto evinced an extraordinary degree of negligence on the part of Greenlaw's creditors, whose incumbent duty it was to have appointed an administrator to his effects, which were still unclaimed, and as the old testimony that appeared in respect to the house assigned by Morris considerably preponderated against the validity of his title, he advised that an administrator be now appointed, and all the property sold for the benefit of Greenlaw's creditors. In which case Mrs Wills must come in as a claimant upon the house, which it was very clear the advanced sums to enable the completion of; and also as no [probad] had been adduced, that Morris had never been satisfied for his own expense of labour, even admitting his claim to extend no further.

The intricacy of the above case particularly recommended it to general and minute attention, as whatever may be the design of parties themselves when present, yet from the omission of regularity in framing a written agreement to be registered in the public records agreeable to established orders, casualty to the principles must involve their engagements to insoluble mystery, and be sometimes followed by a chain of evils too distressing to be contemplated.


[1] This case provides further evidence of the confusion of land titles in early New South Wales. Beginning in 1800, the Governors made orders declaring that land sales were not valid unless in writing or on a register. These orders preceded registration in England by 60 years, but were rarely obeyed, leaving the judges with the problem of dealing with oral agreements.

See B. Kercher, Debt Seduction and Other Disasters: the Birth of Civil Law in Convict N.S.W., 123-125, 166.

Published by the Division of Law, Macquarie University