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

Mahoney v. O'Brien [1813] NSWKR 2; [1813] NSWSupC 2

real property - recovery of house - unlawful withholding of property

Court of Civil Jurisdiction
Bent J.A.., 9 January 1813
Source: Court of Civil Jurisdiction Proceedings, 1788-1814, State Records N.S.W, 5/1109 (case no. 51)

[59] William Mahoney of Sydney, plaintiff and Bryan O'Brien of the Seven Hills, defendant

Action to recover possession of a certain house etc. with the appurtenances, claimed by plaintiff to be his property and unlawfully withheld from him by the defendant.

The defendant appears and denies the plaintiff's right to recover in the action. etc.

The plaintiff exhibits a written statement of his case which is read.

The defendant admits that he had notice from the plaintiff to quit the house he occupied.

The plaintiff states that he purchased the house in question from a Joseph Newton.

Joseph Newton sworn says I live at Kissing Point. I do not know the house [60] occupied by O'Brien. I did live at Parramatta. I sold the house I lived in there to the plaintiff about six years ago. I signed a short writing just to turn over the house to him. It is on the left hand side of the street leading from the main street to the stone quarry. I gave possession of the house to the plaintiff, and he occupied it for some time afterwards. I purchased the house from Henry Sykes. I had not any deeds with it, nor any receipt for the money I paid for it. There was a garden to the house and about 40 or 50 acres of land. I sold the whole of it to the plaintiff for ¿16. I have not seen the writing since.

The defendant exhibits a statement of his case which is read to the court, in which defendant states that plaintiff lived with one Mary Ryan, and that while he so lived with her plaintiff sold a part which belonged to her. That they separated and afterwards the magistrate and commandant at Parramatta ordered the house in question to be delivered to her in lieu of the house so sold by plaintiff. That defendant afterwards lived with Mary Ryan and took care of her until her death in consideration of which it gave the writings of the house up to the defendant who has since occupied the same.

The defendant produces a paper assumpsit of which the following is a copy of the writings of the house.

Cumberland to wit. These are to certify that pursuant to the decision of Captain Abbott commandant at Parramatta Mary Ryan takes possession of a house and garden situate near the stone quarry Parramatta and known by the name of Sykes' house. 15th August 1809

Witness Thomas Harper

Captain Abbott Clark

Indorsed. Registered at Parramatta August 15th 1809. Harper clerk

George Jackson deposes on oath to the fact that Mary Ryan lived with defendant, that she was taken ill, that about near four years ago when she was very ill that she said in the presence of the witness that she wished every thing she had after her death to become the property of defendant on account of his kindness to her. She shewed one the writing of the house (that is the paper above) his title to the house.

[61] The court upon consideration give judgment for the defendant and dismiss this action.

Published by the Division of Law, Macquarie University