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

Doe dem. Ennis v. Conway [1822] NSWKR 2; [1822] NSWSupC 2

ejectment - land law, conditional Crown grants

Supreme Court
Field J., 15 March 1822
Source: Sydney Gazette, 22 March 1822 [1]

This was an action of ejectment to recover possession of a grant of 40 acres of land, in the district of Airds. Mr. Moore, for the plaintiff, put in the original grant from Governor Macquarie, dated 8th October 1816, Mr. Garling, for the defendant, said that she claimed under an exchange of the land for premises in Sydney, between Ennis and one Lachlan, and a transfer from Lachlan to her, dated 23rd July, 1817, but his witnesses were not present to prove this case; and the plaintiff, who had been suffered to keep possession of the deed, recovered.
Mr. Justice Field said, that if the defendant could have proved that the plaintiff had received a valuable consideration for assigning the grant, the Court would have held it null and void, under the terms of the grant, as sold within the five years; and the assignee would thus have been enabled to keep possession against the grantee, although nobody could hold against the finding of the Crown's commission of escheat. In this way, purchasers of grants within the five years, may hold against all but the King, as long as they keep possession.

Note

[1] The informality of land-holding in the colony's early years often caused difficulties once barristers assumed judicial office, beginning with Ellis Bent in 1810. The judges had to reconcile formal law with sometimes well established local practices. On this case see also Supreme Court of Civil Judicature, Judgment Rolls, 1817-1824, State Records N.S.W., 9/2236 (no. 521); and on land law under Field J., see also Underwood v. Ogburn, and Warren's Executrix, 1823.

Published by the Division of Law, Macquarie University