Skip to Content

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

Underwood v. Ogburn, and Warren's Executrix [1823] NSWKR 1; [1823] NSWSupC 1

land, sold for sugar - land law, conditional Crown grant - land law, informal title

Supreme Court
Field J., 28 February 1823
Source: Sydney Gazette, 6 March 1823

This day the following Judgement of the Court was delivered by Mr. Justice Field:
"This is an action to recover the sum of £59 2s. 6d. being the price of 1 ton, 1 ewt and 13lbs of sugar. It appears that Ogburn had one of Governor Macquarie's orders for 200 acres of land; and being indebted to Warren, with whom he resided, sold his land to the plaintiff for sugar, which would be as useful to Warren as money. Warren sent his cart to Underwood's for it, and Underwood's son entered it in his book to both defendants, with these words; "being payment of 200 acres of land, with the indulgences thereof." The plaintiff continued to deal with Warren, and received a subsequent bill from him, without adverting to the sugar; and indeed never made any demand upon him for it in his lifetime. Since the sale of the sugar for land, the new Grant Regulation was made by the local Government, by which every 100 acres is saddled with an assigned convict servant; and the plaintiff therefore rejects the purchase of the defendant's grant, as no longer valuable consideration, and seeks to recover the price of the sugar in money. As we are told that many similar purchases have been made, which will now be sought to be set aside upon the same grounds, we have taken time to consider our judgement. We all know that in all the modern grant land, there is a clause of avoidance for assignment within the first five years, but we also know that such assignments nevertheless, take place every day, however little they may hold good in law, and that purchases run the risk of the crown' s sending commission of escheat, which, as long as they have got grant and possession, is all the risk they have to run. But this is a purchase of only an order for a grant; and we are told such purchases are almost as common as the other. The risks which such a purchaser runs are still great. The intended grant seed may die, or refuse to assign the grant, or give possession when he gets them; or, the Governor may refuse to deliver the grant to so unworthy a settler. The plaintiff knew he was [illegible 3/4/words] that before he bought this order from the defendant, he consulted his Solicitor, who told him the land could not be legally conveyed. Nevertheless, he takes his chance, and sells his sugar. It is not pretended that the defendant refuses the land. The Assistant Surveyor's written offer to measure it in the County of Argyle, or elsewhere, is produced; the defendant's name is in the Surveyor General's books; and the indulgences will be a settler's victualling for six months, and two cows. We are no friends to the traffick which is made with these orders for grants, or even with grants; but, if there were no buyers, there would be no sellers. The plaintiff was glad to sell his sugar for this land; and he enters it in his books, not as a debt against the defendant, but as payment for the land. We think it would be very unjust, if, because the present Government have imposed an incumbrance upon grants, which will in some degree prevent this impolitic traffic, of which the plaintiff intended to reap the advantage, he should now be restored to a better condition, and recover sterling money, which he did not expect, instead of the chance of land and indulgences, which is all he did. The plaintiff gives his sugar for a contingency and an uncertainty, taking his chance of the acts of the Government for the time being, whether to refuse or incumber the land, whether to give it at one place or another, whether to withdraw or diminish the indulgencies. Such a vender as the defendant must sell, subject to the varying regulations and pleasure of Government. If the defendant were to refuse to perform his part of the agreement, or perhaps if he were himself refused his land altogether, the plaintiff might have an equity to recover back his consideration, but, under the present circumstances, it appears to us, that he is bound by his blind bargain, and cannot treat this as a sale of sugar for money. There is no pretence for charging Warren; so that the verdict will be for both defendants."

Published by the Division of Law, Macquarie University