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

Yeomans v Smith (1830) NSW Sel Cas (Dowling) 679; [1830] NSWSupC 15

fieri facias, sale at undervalue, debt recovery

Supreme Court of New South Wales

Forbes C.J., Stephen and Dowling JJ, 13 March 1830

Source: Australian, 17 March 1830

 

Mr. Therry moved, on behalf of Mr. Smith, that a sale which had been effected of his farm, under the Sheriffs levy, might be set aside, or re-opened, on the grounds that the Sheriff first levied on 25 head of cattle belonging to him, on the estate of Sir John Jamison, and that he had no notice of the Sheriffs intention afterwards levy to on his farm, at Williams's River; the sale of which took place in Sydney while the deponent was at his farm; and the Lord Liverpool being the only packet then carrying the mail, was undergoing repair, therefore the deponent was not able to obtain the notice in the Sydney Gazette, or the amount would have been settled.  Since then, the Honorable Gentleman continued, his client had tendered the amount of debt and costs tot he Under-Sheriff, who had refused them; and further, that the farm which deponent swore to be worth £400, had only fetched 35l.

The Court allowed Mr. Therry to take a rule Nisi, --- returnable next Saturday.

 

Forbes C.J., Stephen and Dowling JJ, 20 March 1830

Source: Australian, 24 March 1830

 

In re Jones v. Smith --- Mr. Wentworth rose to show cause why the rule nisi obtained on a former occasion should not be made absolute on affidavits of the purchaser.  The Court was of opinion that there was nothing before it to give rise a disturbing of the sale of the plaintiff's property, for which he had had a rule nisi granted.  The Court could not admit the principle as to insufficiency of price compared with the real value of the property, considering the fluctuations in the value of the land in the country, else there would be an end to the validity of all Sheriff's sales. Rule discharged with costs.

 

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

[p. 297]

[Where a bonâ fide purchaser at a Sheriffs sale bought an Estate at a price far under its value, he being the highest bidder, the court refused to disturb the sale]

Yeomans v Smith

The Plaintiff had taken out execution against the Defendant for £52..16..10., the Sheriff seised land of the Defendant on Williams River on the 19 Decembr 1829, and after the usual notices of sale sold the land in Sydney on the 8 Jany following.  There were four bidders, and a Mr Mossman was declared the highest bidder and the estate was knocked down to him for 35£.  An application was now made to set aside the sale on two grounds first that the Defendant had not due notice of the sale; and secondly, that the land was sacrificed at an undervalue, it being reasonably worth £400,  The Defendant after execution being put in on the 19 Dec 1829. took no steps to discharge the same and in a conversation deponent said he expected his land would be sold for an old song in consequence of the distress of the times.  After Mossman completed his purchase, the Defendant did not give [p. 298] him any notice not to take possession or go on with improvements, but on the 12th March he tendered the Sheriff the full amount of the debt and costs in the action.  It was sworn that Mr Mossman had sent up an overseer to build a house and that since the sale he had incurred an expense of 300£ in improvements on the land, no fraud or misconduct was suggested in the conduct of Mr Mossman, who according to the affidavits appeared to be a bonâ fide purchaser.

Wentworth appeared for the purchaser who had been served with the rule.

Therry for the Defendant Smith.

The Court was unanimous in holding that in the absence of all fraud or collusion on the part of the purchaser the sale could not be disturbed.  It was a dangerous thing to upset a Sheriff's sale where there was no fraud if there was anything amiss in the Sheriff, he must be responsible but as it respected the Vendee it would be hard to [p. 299] disturb him, now that he had got possession and laid out so much money in improvements under confidence that the Sheriff had power to give him a good title.  The defendant ought to have been more prompt in his proceedings.

Rule discharged with costs

Mossman having been brought here unnecessarily.

Published by the Division of Law, Macquarie University