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

Sanders v. Jones [1814] NSWKR 5; [1814] NSWSupC 5

land law - Dick the Needle - conveyancing

Court of Civil Jurisdiction
Atkins J.A., 6 July 1814
Source: Court of Civil Jurisdiction Proceedings, 1788-1814, State Records N.S.W, 5/1110-476[1]

[379] Thomas Sanders of Sydney - plaintiff and Thomas Jones of the Hawkesbury - defendant - Wednesday the 6th day of July 1814. The court met pursuant to adjournment - Present Ellis Bent esq. Judge Advocate, Charles Hook esq. - no. 476.

Writ to obtain possession of a certain farm called Sanders' farm containing 30 acres of land situate at the River Hawkesbury in the district of Mulgrave Place, assigned to plaintiff by Lieutenant Governor F. Grose by deed pole or grant, whereof the said plaintiff has been dispossessed by defendant. Damages £500.

The defendant appears in person and denies the cause of action.

Daniel Smallwood sworn and examined for the plaintiff, says I reside at Pitt Town, Hawkesbury. I know Sanders' farm very well. I recollect Sanders living in and occupying the farm for several years. I have seen the original grant. It was granted by Major Francis Grose. Thomas Jones the defendant occupies it now. I brought the grant from David Collins esq. myself and delivered it to the plaintiff myself. Mr Collins was at that time Judge Advocate and Secretary to the Governor. To the best of my knowledge, I can't say I ever saw the grant since. I know Samuel Phelps, he goes by the name of Dick the Needle.

Cross examined says, I never heard from Sanders himself that he had sold the farm to Phelps. I heard of an agreement between Sanders and Phelps, but I do not know it. There was a report that Sanders had sold the farm to Phelps. I considered the value of the farm in 1807 was £300.

[380] Samuel Phelps sworn and examined for the plaintiff, says at the latter end of the year 1807 I made an agreement with the plaintiff respecting his farm at Mulgrave Place. It was in writing. The writing is now lost. I am sure yet, it has been lost these four or five years. One Robert Bent was one of the witnesses to this agreement. The agreement was never registered. That agreement was to pass the whole property in the farm to me and my heirs for ever. I gave him (the plaintiff) a mare and filly foal for the farm. It was an exchange, and I received £5 from Sanders to boot, on account of the mare having just taken the horse and my having to pay Mr Piper that sum on that account. Jones has got the original grant of the farm from Major Grose to Sanders. I received it from Sanders and gave it to Jones. I received the grant from Sanders'wife about two or three days after the agreement. About four years ago I sold the defendant one half of this farm and I sold him the other half the year following, and at this last time I gave him the grant of the farm. I can't tell when I pledged this grant with Mr Larra at Parramatta ; it was either the first or second Sydney races. I applied to Sanders to assign the farm to me on the back of the grant about a week or fortnight after I got it. He then said he was hurried; he has to go in the bush for some wood and desired me to put it off till I came down again. I never lived on the farm. I rented it to Jones for one year, and then I sold him one half the farm and then I sold him the other half. I rented the farm to Jones for £60 a year. I sold him the first half for £130 and the second half for £105. It's all paid.

Cross examined, says one George Wood drew the agreement I have spoken of between Sanders and myself respecting the sale of this farm. He is dead. Wood came with Sanders to my house at that time for this very purpose. I then lived at the Seven Hills. George Wood witnessed the deed. I heard it read. Sanders made an absolute sale of the farm to me by that deed. Jones has occupied the farm ever since. Sanders and I made the agreement over night and took away the mare and foal next morning. This was the same time he came with Wood. [381] The reason I applied to Sanders to endorse me an assignment of the farm on the grant was because I was told it would be more secure.

The defendant (in pursuance of notice from the plaintiff) produces the original grant of the farm in question, which is read, dated 19 November 1794.

Elizabeth Sanders sworn and examined for the plaintiff, says I am the plaintiff's daughter. I was present when this notice was served on the defendant Thomas Jones and read to him. It was about eight or nine months ago, at Jones' house on this farm. My father asked him to give him the deeds of the farm and he refused.

Cross examined, says the defendant used to put up at my father's house in Sydney. I never heard my father say that he had sold this farm to Phelps. I never heard him tell Jones so. I heard Jones say to my mother he was going to buy the farm of Dick the Needle and my mother told him not to do so as he had the farm only for a time. I never heard my father recommend Jones to buy this farm. I know Fanny Hill, she used to come to my father's house. I never heard my father recommend Jones to buy it in his presence.

The said notice is read, dated September 29th 1813.

The plaintiff closes his case.

Thomas Robert Bent sworn and examined for the defendant, says I was stockman to Samuel Phelps five or six years ago. He then lived at the Seven Hills. I was present when Sanders and George Wood came to his house one evening. I can not read or write. Thomas Sanders said to Phelps [382] he would give him his Hawkesbury farm. Phelps told him he would give him his mare and filly foal for his Hawkesbury farm and £5. Sanders agreed to it. They then went into another room with a man of the name of Wood that Sanders brought with him and I saw them about some writing. I do not know what the writings were.

Cross examined, says I don't know the difference between the sale and the lease of a farm. I saw Wood writing but what I don't know.

Thomas White sworn and examined (for defendant), says I was at work at Sanders' farm at Hawkesbury about six years ago when Sanders came there. I was in Sanders' employ then. I had heard Sanders had sold the farm, and when he came up I asked him. He told me he had sold it and thank God he had done with it at last. He said he could get more money by fetching wood into Sydney than by the farm, and shortly after Thomas Jones went down the farm with him for Sanders to shew him the boundaries, and Sanders told Jones he should consider him a tenant to Samuel Phelps. I don't know the difference between a lease and a sale. I know the difference between renting and buying. I understood from Sanders that Phelps had bought the farm from him.

Cross examined, says I went down the farm with Sanders and Jones when Sanders shewed Jones the boundaries.

William Roberts sworn and examined for the defendant, says I live at the King's Arms Sydney. I recollect having a conversation with Sanders relative to this farm betwixt the brick fields and the burying ground. It is two or three years ago I met him with a mare and foal and some sheep. The mare was in a cart and he was a driving her. I told him he had a nice mare and foal, and asked him whom he bought her of. He said he had rapped the farm away for the mare and foal and that there was £5 deficient, but whether [383] he was to give Dick the Needle or Dick was to give him the £5 I cannot say. I told him he was to blame for parting with the land. He said the mare and foal were of more use to him than the land.

Cross examined, says I cannot pretend to say the time this took place. It might be three or four years ago.

Paul Bushel sworn and examined (for the defendant), says I live in the township of Wilberforce on the Hawkesbury. I was in the habit of friendship with Sanders. When I came to Sydney I usually went to his house. I did not sleep or eat there. A short time after Sanders sold this farm to Phelps as I understood I went to Sydney. I called upon Sanders there. He then told me he had sold his farm to a man known by the name of Dick the Needle for a mare and foal. He asked me to go into the farm and look at the mare. I went into the yard with him and looked at the mare. I said she was a very fine mare, but did he think she was adequate to his farm. He said yes, that the trouble and fatigue he had had in getting the rents of his farm and in getting them down were such that he was entirely tired of it, and that he could earn more money by fetching wood for the inhabitants of the township of Sydney than the rents of his farm and have his natural rest and his bed every night. He said also there was a hazard in land in respect both to floods and blights. I told him there was. I understood he had entirely disposed of his farm and have thought so ever since.

Cross examined, says I have always understood that Dick the Needle was a dealer and a hard one too and a sharp one.

John Benn sworn and examined for the plaintiff, says I live at the Hawkesbury. I know the farm in question. I know Sanders. About six [384] or seven years ago, I am not certain whether in my house or between my place and his, I saw Sanders. He told me he was going to sell the farm to one Dick the Needle for a mare and foal. I told him I thought the farm would be of more service to him as he had a family. I live about a mile and three quarters from this farm. I have always understood since that Sanders had sold the farm to Dick. It was the understanding of the neighbourhood. I won't be certain that Sanders afterwards told me he had sold it.

Cross examined, says the general opinion is that Sanders has sold it by giving up the grants. A mare and foal would go very high at that time. A little before that time I have sold fillies for £100, £200 and £300.

John Cobcroft sworn and examined for the defendant, says I live at Hawkesbury, about half a mile from this farm. Sanders positively told me he had sold this farm to Dick the Needle for a mare and foal. This was about six years ago when I came down to Sydney in his own house. At that time I sold a good mare and foal myself for 120 guineas. Sanders told me that the mare and foal would be of more service to him than the farm. Sanders had lived down at Sydney for the some time. Jones has lived upon the farm ever since.

Elizabeth Phelps sworn and examined for the plaintiff, says I am the wife of Samuel Phelps. I recollect Thomas Sanders and George Wood coming to our house six or seven years ago. We then lived at the Seven Hills. I was in the room when Sanders and Phelps agreed for a farm at the Hawkesbury. My husband was to give a mare and filley for the farm. I saw George Wood drawing up some writing. I saw Sanders sign it, put his mark to it, he crossed it. I heard Wood read it over. It was to secure the farm to my husband till the deeds were transferred. Wood is dead.

Cross examined, says there was no other writing as I saw. I cannot tell whether my husband signed it. Robert Bent a stock keeper of ours was in the house but not in the room. [385] Phelps took the order for £5 which Wood wrote to Sydney the first time he went down and also the paper relative to the farm, and when he returned he had got the £5 and had delivered the grant to me. The paper relative to the farm is lost. Thomas Sanders never would transfer the deeds.

Frances Hill sworn and examined for the defendant says, I live in Sydney. I used frequently to be at Sanders' house. I heard on one of these occasions Sanders say he had sold the farm to Samuel Phelps. Jones (the defendant) was present and was asking Sanders if he had sold the farm. Sanders told him he had and recommended Jones to buy it as the best thing he could do for himself and his family. Jones always put up at Sanders' house. I have often heard Sanders say he had sold Phelps the farm, often and over. I was present when Mr Sanders gave Phelps £5 in currency, and the grant of the farm. I have heard Jones tell Sanders that he had bought this farm from Phelps and they commended him for it and told him that it was the best thing he could do for himself and family.

Cross examined, says this conversation took place betwixt five and six years ago. I have heard this from Mrs and Mr Sanders. Sanders had not been in prison for debt then.

Thomas Watson sworn and examined for the defendant, says I saw this agreement executed. I am subscribing witness to it; the whole is in my writing except the signature of Thomas Jones. I saw Phelps put his mark to it. It was first read over to him. It was executed at Mr Crossley's office, I think so.

Cross examined, says I cannot say whether Jones and Phelps were both present together when the deed was executed.

[386] The said deed is read. It was not under seal, and dated on the 14th February 1812.

Mr George Crossley sworn, says this paper was drawn up in my office. Some few days before its date Jones came to me and brought the original grant of that farm. He told me he had bought it of Phelps and desired an assignment might be made of it. I asked him when the assignment was from Sanders to Phelps. He said he did not know, all he had received for what he had paid Phelps was what he then produced. He afterwards brought Phelps to me. This paper was drawn up because Phelps could not produce any conveyance in writing from Sanders to him.

The defendant closes his case.

The court on mature deliberation doth adjudge that this suit be dismissed with costs.
Costs allowed £9.11.6.

Note

[1]       This case shows the level of informality of early New South Wales conveyancing. It included two unregistered sales, one of them from one illiterate to another. The original holder of the land, Sanders, then sued the final buyer, Jones, for possession. Sanders apparently argued that he had merely leased the land to the middle man, Phelps and that Phelps had purported to sell it on as a full title. Suspicions are aroused by Phelps nickname, Dick the Needle, given because he was a sharp operator. It is not surprising that the name Richard Crossley appears in the case.

       This informality was typical of land sales in the early colony, but by 1814 the Judge Advocate was a barrister, Ellis Bent who might have been expected to require greater formality. But he held that the two sales were valid, so endorsing these local customs. The register of land sales documents was of little use.

       See B. Kercher, Debt, Seduction and Other Disasters: the Birth of Civil Law in Convict N.S.W. (Federation Press, 1996) at 122-123.

Published by the Division of Law, Macquarie University