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

James v Thomas [1811] NSWKR 9; [1811] NSWSupC 9

land law - land law, crown grants - conveyancing - forgery

Court of Civil Jurisdiction
Bent J.A., 24 October 1811
Source: Sydney Gazette, 26 October 1811, 3 [1]

On Thursday a cause appeared which attracted considerable attention, and went to determine a long disputed title to four acres of land at Windsor, originally making part of a farm granted to one John Pugh (now residing in the town of Windsor) which farm he has within the last three years sold to a Mr James, who was the present plaintiff; and Charles Thomas, the defendant, called upon by a rule of court to shew cause why he should not render up possession to the plaintiff of four acres of land, value £80 making part of Pugh's farm, from whom he had purchased it. In answer to the rule it was set up by the defendant that in 1796 himself and Pugh were granted adjoining farms; that both parties proceeded to clear before their limits were defined, and that when measured by the Surveyor General, Grimes, it appeared that defendant had cleared the four acres in dispute upon Pugh's allotment, instead of that which fell to himself; that at so distant a period as 1796 uncleared ground was considered of little or no value, and that for the consideration of two or three pounds whole farms of 25 to 30 acres had been frequently disposed of, in many instances before the grants were made, but the spot fixed upon; that in consequence of the mistake, the defendant Thomas, and the original grantee, Pugh, bargained for the four acres, which by a conveyance dated six months prior to the Grant itself, were transferred accordingly, and the deed produced, the only subscribing witness to the execution of which being absent from the colony, its validity was denied by Pugh himself, who swore positively that he had never subscribed any paper of such import, and that, if produced, he should consider it a forgery. This denial of Pugh's formed the chief part of the plaintiff's case, which was stated by memorial whereon the rule had been granted, submitting to the opinion of the court at the same time the improbability of a person's making a deed of transfer before he had a legal title to the land, which nothing but the grant itself could give; and whether, if it even were the case that such transfer had been made, it could be held otherwise than a premature transaction, devoid of future operation upon either side, as the gift was in the Crown long after the date of the alleged bargain and sale, and might have been made to any other person instead of Pugh. To this objection the court observed that as it appeared by evidence that such bargains were customary at the time this was stated to have taken place, the only risque a purchaser had to encounter clearly was, to whom the grant of ground should eventually be made; if to any other person than the one from whom he purchased under the idea of its being so granted, why of course his bargain was at an end; but if, upon the other hand, there should be no disappointment of the expectation upon which such purchase did take place, the claim by right of purchase must be deemed illegal, and the defendant would be justified in his possession. The material object for the consideration of the court was whether the original grantee had at any time alienated the ground in the defendant's favour. The witness to the deed was gone, and the grantee denied the act; under which circumstances, the defendant was allowed to call the best evidence he could obtain; but whose testimony it appeared that Pugh had admitted the existence of such a paper, that he had seen it about two years since, and then made no other objection than that he had not been paid an equivalent for the ground; that he had expressed the deepest regret at his having made so imprudent a bargain; and that several years before he sold his farm to the plaintiff he had commenced a suit to recover back these four acres, out by his own application put an end to the proceedings, shook hands with the defendant, and in unqualified terms assured him that he was satisfied, and should never molest him. From the whole of the evidence the court was satisfied that the transfer was valid, and the rule was dismissed.

[1] This case shows how Ellis Bent dealt with the informal conveyancing that took place in the first years of the colony's existence. Land was sold for very small prices, sometimes even before Crown grants were issued. Were pre-grant sales valid? (It was a condition of many grants that the holder should clear the land within a fixed period.)

See also John James v. Charles Thomas, Court of Civil Jurisdiction Proceedings, 1788-1814, State Records N.S.W, 24 October 1811, 5/1106 (case no. 222), and see B. Kercher, Debt Seduction and Other Disasters: the Birth of Civil Law in Convict N.S.W., Federation Press, Annandale, 1996 123-125, 166.

Published by the Division of Law, Macquarie University