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

Brown v. Alexander [1828] NSWSupC 89

land title - permissive occupancy - reception of English law - Crown prerogative - Newfoundland

Supreme Court of New South Wales

Forbes C.J., Stephen and Dowling JJ, 30 September 1828

Source: Dowling, Select Cases, Vol. 2, Archives Office of N.S.W., 2/3462

[pp 41-42]

[Where an officer under Government obtained a Ticket of occupation for 1,000 acres of and, and expended 100£ in improvements thereon; and deed indebted to the Crown on a balance of accounts to the amount of 6. or 700£ and after his decease a judgment creditor took out Execution, and  the Sheriff sold the Land   Held on motion by the Sol. Gen. that  the Sheriff be directed to pay back the  purchase money to the vendee, and give up possession of the Land to the Crown, that the Court would not decide on motion this, which involved an important question of title.][1 ]

[p. 41]Tuesday 30th Sept 1828

Brown v Alexander

Title to Land

Sampson S.G. moved that the Sheriff be directed to repay to the vendee of an estate sold under an execution against the Defendant the purchase money for the same and that the Sheriff withdraw from the possession of the land so sold on the ground that the defendant never had any grant or valid title thereto and only a permissive occupation.

The facts stated by the Solicitor General were these  the Defendant had been a Clerk in the Commissariat department.  In May 1822 he had obtained a reservation of Land in the Colony to the amount of 1,000 acres and received a Ticket of occupation subject to the usual conditions.  Under [p. 42] this ticket of occupation he took possession of the land, and, and [sic] had laid out 500£ in improvements on the estate.  He being a Civil officer, in the service of government he could not receive a confirmatory grant until the term of his service expired sometime since the defendant gave up his situation, at which time he was indebted to the Government in the sum of 6 or 700£.  He had never had his titles confirmed by grant.  A short time since he died indebted to the Plaintiff; a Judgment creditor, who had taken out execution upon the judgment and under that execution the Sheriff sold the Land in question to a bona fide purchaser.  Under these circumstances it was contended first, that at all events the Government had a lien upon the land to the amount for which the Defendant stood indebted to the Crown; and secondly [p. 43] that as the Defendant had never had any title to the land, but had merely a permissive occupation subject to the approbation or confirmation and upon an implied condition of good behaviour it could not be the subject of sale to satisfy the private debts of the Defendant and therefore it was prayed that the Sheriff be ordered to repay the purchase money, to the vendee and withdraw from possession.

Forbes CJ.  It appears to me that we cannot interpose in this summary way, and in this collateral manner determined a question of title.  With respect to Crown Land in the mother Country, the greatest strictness is observed in enforcing the rights of the Crown.  The rights of the Crown at home stand upon a very different footing, arising from the peculiar circumstances and condition of the country,  Here the case is altogether different.[2 ]  The Country generally speaking is a wilderness.  The whole policy of the Mother Country towards [p. 44] this vast extent of Territory, is to give grants of land in order to make them available to the state by improvement and cultivation and holding out encouragement to Settlers to invest their capital in the improvement of desert wastes.  Property of this description has hitherto been in a great measure held in the way in which this person appears to have held the land in question.  A great majority of land holders in this Settlement have no other muniment of title than a Ticket of occupation from the Crown upon the faith of this they have invested their capital and bestowed their labour in the improvement of their lands.  If their Title is to depend upon good conduct and the Crown may resume its sights upon the mere surmise of misconduct that condition of their Tenure [p. 45] should be matter of express covenant and stipulation at the time of the ticket of occupation a piece of Town Land and having the ostensible possession and enjoyment of the land he erects expensive buildings upon it which he has been enabled to do perhaps by the credit which such a possession gives him in the world, is it to be said if it shall turn out afterwards that he has committed some irregularities in his office, that the Crown may resume possession, deprive him of his title both legal and equitable to the prejudice of his bona fide creditors, by whose means the expensive improvements and erections upon the land, have been created?  I think it would be too broad a proposition to lay down that an officer of government who obtains permissive possession of Land in this way may be turned out of possession and his Title vacated to the prejudice of his bona fide creditors, merely because he may [p. 46] have misconducted himself in his office.  This would be giving a Control to the Crown, over their rights of innocent parties which this Court cannot upon any principle of law or equity sanction.  The Crown has prerogative rights of a transcendent character these may be enforced and it is the duty of the Court to enforce those rights when properly set in motion but they cannot be enforced in this manner.  We are called upon to determine in a summary manner an important question of title.  When the question thus involved is raised for the deliberate, and solemn determination of the Court we shall give it our best consideration and judgment but there is too serious a question to determine in this summary manner upon matter suggested in an affidavit.

[p. 47] Stephen J.  I am of the same opinion.

Dowling J,  This question is much too important to be decided on motion.  If we were to decide such a question without mature deliberation, it might produce much mischief.  I apprehend that a vast proportion of the titles to land in this Colony depend entirely upon nothing more than a Ticket of occupation, very few grants having been actually executed.  Vast sums of money and Capital have probably been expended upon the improvements of such lands so held, and it would be a very strong measure to hold in this summary manner, that parties have no title or legal Interest in such lands because all the conditions upon which the tickets of occupation were given have not been complied with.  Titles would be unhinged and the greatest confusion would ensue if one were now to hold as a general principle that the Crown has a right co instante [p. 48] to resume the possession of Lands so granted, after parties have expended their capital and labour and industry upon lands so possessed and enjoyed upon the faith and confidence that their rights would be confirmed by deeds of grant from the Crown.  Certainly as long as I have the honor of holding a seat on this Bench, I shall never decide so very important a question upon an exparte application upon an affidavit incidentally arising in another matter, were [sic] the rights of innocent parties may be affected.

Rule Refused


[1 ] On informal titles, see also Australian, 18 and 25 March 1831.  In the latter, the editor quoted the famous phrase of Sir William Forbes, "while I sit here as a British Juryman, I shall ever think that I have a right to decide upon the law as well as the fact."  These editorials were in relation to what eventually became the case of R. v. West, 1831.

[2 ] Chief Justice Forbes was well used to making this argument, especially about land law.  Newfoundland had an even more peculiar local land law, which Forbes did much to clarify while Chief Justice there: see Newman v Goff, 15 September 1817, in Forbes, Decisions of the Supreme Court of Judicature in Cases Connected with the Trade and Fisheries of Newfoundland, Mitchell Library, A 740Williams v. Williams (1818) 1 Newfoundland Law Reports 103; R. v. Rowe (1818) 1 Newfoundland Law Reports 126; R. v. Kough and Houston (1819) 1 Newfoundland Law Reports 172.

Published by the Division of Law, Macquarie University