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

Jones v. Knopwood [1821] NSWKR 6; [1821] NSWSupC 6

land law - Crown grant, conditional grant - fieri facias, land - land sale, breach of contract - equity

Supreme Court
Field J., March 1821
Source: Historical Records of Australia, Volume 4, Series 1, at 411-412[1]

Mr. F. Garling to Colonial Secretary Goulburn
Sir, Sydney, 7th October, 1822.
I beg leave to acknowledge your Letter of this day's date, communicating His Excellency Sir Thomas Brisbane's desire to be advised what legal steps should be pursued in consequence of the Provost Marshall (having advertized for Sale) by Public Auction certain Grants of Land, in which the Clauses providing against the Alienation of the Estates within a limited number of years are still in force, from an impression that the Provost Marshall cannot legally take in Execution that which it is conceived cannot by reason of the Clauses referred to be legally sold.
Whether the sale of such an Estate by the Provost Marshall, who acts under the authority of a Writ of Fieri Facias, and is therefore not the Voluntary conveyance of the Grantee but proceeds from the Compulsory Mandate of a Court, would be deemed a forfeiture or not, is a subject of considerable moment in this Colony, and involves such an important Question of Law, as would induce me to hesitate in giving a sudden Opinion upon; I, however, do not recollect that you desire specific advice on that part of the question; but I would beg to referred for your guidance the Opinion of Mr. Justice Field lately given in the Supreme Court as to whether, if an Estate be forfeitable to the Crown, the executive and judicial Authorities in that Country have at present power to enforce the forfeiture.
The Judge observed "that he was glad of an opportunity of declaring the law on the subject. In the case of a conditional Grant, though the Condition be unperformed, the King cannot regrant without Office found by Stat. 18 Henry 6,c. 6, that is without the inquest of a Jury to ascertain whether the condition be performed or not, Sav. 70, 12 East 105. And so too it is even in the case of Lands escheating to the Ground for want of Heirs or Corruption of Blood by 8 Henry 6, c. 16, and the former Statute Staundford Prerog. Reg. 54a, 12 East 112. If it were not so, all the Grants of the Colony would be mere Tenancies at the will of the Crown. Should the Crown ever please to take advantage of the unperformed conditions in the Grants of the Colony, it must first appoint a Commission of Escheat or Inquest of Office."
Whatever ulterior Intention that the Government may have as to enforcing or forgoing their right to resume the forfeited Estates, I think it would be particularly advisable that an Official Communication should be made from the Colonial Secretary's Office to the Provost Marshall intimating the expediency of his Notifying to the Public at the time of his sales that the purchases of Estates take them with all the risks (if any), attendant on the conditions of the Grants been either unperformed or violated.

I have, &c.,
Frederick Garling

Source: Sydney Gazette, 7 April 1821

This was a Bill in Equity to be relieved from a deed of contract, dated 21st March, 1816, whereby, in consideration of £1000 in hand, and the further sum of £1000 to be paid by Captain Jones, of the Bridgewater, the plaintiff's late husband, the defendant bargained and sold all that [?] or tenements, lands and appurtenances, known by the name of Cottage Green. And whereas the said W. T. Jones is about to depart the settlement, he, the Rev. R. Knopwood, is to retain and keep possession of the aforesaid premises until the said W. T. Jones may return, or that said remaining sum of £1000 be duly paid and discharged, which he, the said W. T. Jones, covenants and agrees shall be made on or before the 1st day of April, 1817; and upon payment of the last mentioned sum of £1000, the said Rev. R. Knopwood, for himself, his heirs, executors, and administrators, hereby covenants and firmly binds himself to assign transfer, and let over, and deliver up a peaceable and quiet possession of, and to, all and singular the aforesaid dwelling house, lands, gardens, crops, fruit trees, inclosures, and appurtenances thereunto belonging, unto the said W. T. Jones, or to his agent or agents, heirs, executors, or administrators, free of any encumbrance for whatever: to have and to hold the same with all benefits of grants from the Crown. But provided the said sum of £1000 shall remain due and unpaid, either by the said W. T. Jones, or his agent or agents, heirs, executors, administrators, or assigns, after the 1st day of April, 1817, then the sum of £1000 this day paid, the said W. T. Jones hereby agrees shall be forfeited, and this indenture to be null and void and become of no effect. But further, that (if) upon the full payment (tender) of the said last sum of £1000 the said Rev. R Knopwood John shall neglect or refuse to deliver up or assign the original grant unto the said W. T. Jones, or his agent, heirs, executors, administrators, and assigns, the said Rev. R Knopwood hereby covenants and agrees to return the said sum of £1000 already paid, and to forfeit a further sum of £1000.
Captain Jones never returned here, and his agent had no funds to complete the purchase.
It appeared in evidence, that the estate consisted of a small bad cottage, and out houses, and a good garden, and paddock of about 10 acres cleared, the whole consisting of 25 acres, next to the burying ground, on the margin of Sullivan's Cove, except a roadway, 11 yards broad, reserved for the Crown; and that the utmost value of it, both at the time of this contract and now, was £1000. The bill charged the defendant with no other fraud than that of concealing the alienation of five acres of the original grant from Governor King of 30 acres, called Knopwood's Farm; but it was proved to the satisfaction of the Court, that Captain Jones was not only aware of such attention at the time of the contract but soon afterwards purchased those five acres of their proprietor, and that the farm was always called Cottage Green.
Mr. Moore, for the defendant, dwelt upon these facts, and urged a constant readiness to complete the purchase, upon being paid the second £1000 and interest from the time when it was covenanted to be paid.
Mr. Wylde, for the plaintiff, relied mainly on the defendants not being able to make a good title; and insisted, that by reason of the non-performance of the conditions of the grant, the estate was not only forfeitable, but ipso facto forfeited to the Crown.
Mr. Justice Field was glad of an opportunity of declaring the law upon this subject. In the case of a conditional grant, though the condition be unperformed, the King cannot regrant without office found, by Statute 18 Hen VI c. 6, that is, without the inquest of a jury to ascertain whether the condition be performed or not; Sav 70 12 East 105. And so too it is, even in the case of land escheating to the Crown, for want of heirs or corruption of blood, by 8 Henry VI. c. 16. and the former Statute, Staundard Prerog. Reg. 54 a. 12 East 112. If this were not so, all the grants of the Colony would be mere tenancies at the will of the Crown. Should the Crown ever please to take advantage of the unperformed conditions in the grants of the Colony, it must first appoint a commission of Escheat or Inquest of Office. Mr. Wylde had argued this case more as if it had been a bill filed by the defendant for a performance of, than by the plaintiff for relief from, the contract. It was not from fear of the title, that the intestate's agent failed to complete the purchase; nor did there seem to be that danger in the title which would warrant a purchaser to abandon a contract, and recover a deposit. The view which the learned Judge took of this contract was, not that the inadequacy of the consideration was so gross as to supply the place of fraud, fraud not having been proved, but that the £1000 in the contract was expressly called a forfeiture, and was pretended to be counter-balanced by an equal penalty upon the defendant' s not performing his part of the contract; although the Court saw at least enough of the inadequacy of this estate to convince them that there was no danger of the defendant's not delivering up the premises upon the payment of the second £1000 and consequently, that there was no mutuality in the penalties. But not only Courts of Equity, even Courts of Law, abhorred all penalties; and Chancery would relieve against forfeitures introduced by parties themselves into contracts, wherever compensation can be made. In the case of a common action at law upon a bond, or deed of penalty for the doing or paying any thing, it was not the penalty, but only the actual damage sustained that could be recovered; and how much more would a Court of Equity like this relieve from a forfeiture, which was not only inprovident and unmutual, but which was proved in itself to be the full value of the estate? Mr. Broughton, the intestate's agent, was a plain honest man, and shewed his sense of the conscientiousness of this bargain, in the official letter with which he answered the defendant' s demand of the second £1000: "It rests with yourself (he says) whether you will, or will not, take the advantage, which I perceived the agreement affords you." The Judge was sorry to see, that a Gentleman of the defendant's profession did elect to "take the advantage," adds Mr. Broughton, like people in general, who think the law a much more strict literal thing than it really is, concluded he could. A bargain's a bargain, was the language of the defendant' s Solicitor: in a Court of Equity, bargain is not always a bargain: fraud will unrip any bargain; and a forfeiture will be relieved against. The law did not suffer these "advantages" to be taken.
The Court agreed with the Judge, and decreed that it should be referred to the Master, to enquire what damage the defendant had sustained by reason of the non performance of this contract, with a view to receiving a liberal compensation out of the £1000.


[1] At this time, English law did not allow the seizure and sale of freehold land for the recovery of unsecured judgment debts. Instead, a procedure called elegit allowed the judgment creditor to gain possession of the debtor's land and take its profits until the debt was paid.
Land had a different social meaning in New South Wales from that in England . As a result, its law was different. Under imperial statute, such sales of freehold land were allowed in that colony from 1814: Debtors (Liability) Act 1813, 54 Geo. 3, c. 15, s. 4. The same remedy was not available in England until 1838, and even then in a clumsy fashion: 1 and 2 Vic., c. 110. On this case, see also Sydney Gazette, 11 August 1821. See also Kable v. Lord , 1812-1814 above; Eagar v. Clarkson, 1813; B. Kercher, Debt Seduction and Other Disasters: the Birth of Civil Law in Convict N.S.W., Federation Press, Annandale, 1996, 198-201.

Published by the Division of Law, Macquarie University