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

McQuoid v Lord (1831) NSW Sel Cas (Dowling) 687; [1831] NSWSupC 64

fieri facias, against land - Statute of Frauds - conveyancing - auction, conditions of

Supreme Court of New South Wales

Forbes C.J., 10 October 1831

Source: Sydney Herald, 17 October 1831[1 ]

McQuoid v. Lord. - This was an action to recover 725l., the amount of a bidding made by defendant at auction, on the 4th June, 1829, for a farm sold under a writ of fiere facias, in the case of Cooper and Levey v. Sturgeon; defendant being the highest bidder, the farm was knocked down to him, he however declined to complete the purchase, and the farm according to the terms of sale, was put up again, but no purchaser could be found; defendant had subsequently made some propositions to complete the contract, but of such a nature that plaintiff could not accede to, being pressed for the amount of the sale by the plaintiff in the cause.  The jury found a verdict for the plaintiff, subject to certain points of law to be reserved.

 

 

Forbes C.J., Stephen and Dowling JJ,[2 ] 19 November 1831

Source: Dowling, Select Cases, Archives Office of N.S.W., 2/3466

[p. 121] An Entry in an Auctioneers sale book of land taken in Execution "4 June 1829 Mr Lord 725£ Cooper & Levy v Sturgeon" without being signed either by the purchaser at the auction is not a memorandum in writing of the agreement within the Statute of Frauds 29 Car 2. c. 5.3.4. to bind a purchaser [p. 122] who refused to complete his purchase, the entry not being attached to or connected with the conditions of sale.

 

 

Source: Dowling, Proceedings of the Supreme Court, Vol. 61, Archives Office of New South Wales, 2/3244

[p. 157] This was an action of assumpsit to recover the purchase money of an Estate at Bathurst sold at auction by the Sheriff under an execution at the suit of Mess.rs Cooper & Levy, against one Sturgeon the Defendant being declared the highest bidder at the price of 725£.  At the trial beforeForbes CJ and a special Jury the Plf had a verdict with leave to the Deft to move to enter a nonsuit.  The case was this:-

At the sale in question the Under Sheriff acted as auctioneer.  Before the sale took place, the conditions thereof were publicly read, amongst which were that the highest bidder should be the buyer [p. 158] and that a deposit of ten per cent should be paid down by the person declared purchaser.  The defendant bid to the amount of 725£ and the Auctioneer made the followingunsigned memorandum in his own book, but not attached to or connected to with the conditions of sale. viz ``4th June 1829.  Mr Lord 725£ Cooper & Levy v Sturgeon."  The Deft was afterwards applied to complete his purchase but having refused, the estate was put up again (at a great loss) to auction according to the conditions of sale at the "risque of the first purchaser".  At the trial the Defts counsel moved for a nonsuit on the ground that there was no sufficient memorandum in writing of the agreement to satisfy the statute of frauds 29 Car. c.5.s.4; & the point being reserved,

Keith now contended for a nonsuit & in support of his argument cited Walker v Constable 1 B & P 306.  Emmerson v Heelis 2 Taunt 38. White v Proctor 4 Taunt 209. & Kernys v Proctor 2 B & P. 238. to shew that an auctioneer is an agent for both vendor and vendee, & [p. 159] that auction sales are within the statute of frauds.  The case of Hinde v Whitehouse 7 East 558. shews that the mere writing of the name of the purchaser by the auctioneer in his own book or against a lot in the catalogue to which the conditions of sale are not attached or connected therewith is not sufficient to satisfy the statute.  The memorandum here made contains no conditions or terms, & therefore cannot be called a memorandum of the agreement.  The memorandum is altogether independent of the conditions.  But the case of Kenworthy v Schofield 2 B & C 945.4 D & R 556, is decisive.

Foster. contra contended that the public reading of the conditions of sale was sufficient to connect them with the memorandum made by the auctioneer so as to satisfy the words of the Statute.  This mode of selling land had long obtained in the Colony, & if it were now shaken it would be productive of great injury and unhinge titles hitherto deemed good. 

Forbes C.J. Unless we hold that the salutary Statute of Frauds & Perjuries [p. 160] not enforced in this colony, our decision must be coersced [sic] by the authority of the cases cited in support of the nonsuit.  I should lament to see one of the most important statutes in the English law, excluded from, operation in this country, for it would open a wide door to those very mischiefs which it was the policy of the law to prevent.  There must be a nonsuit entered.

Stephen J I am of the same opinion.

Dowling J By the 4th Section of the Statute of Frauds on which this question arises it is enacted among other things that no action shall be brought whereby to charge any person upon any contract or ale of lands, tenements or hereditaments, or any interest in or concerning them, unless theagreement upon which such action shall be brought, or some memorandum or note thereof, shall be in writing & signed by the party to be charged therewith or some other person thereunto by him lawfully authorized."

Now without attending to decisions upon [p. 161] this most wholesome statute, can we say that the mere unsigned memorandum by the auctioneer, not attached to or connected with the conditions of sale, in these terms `` 4th June 1829 MLord 725£ Cooper & Levy v Sturgeon, `` is theagreement upon which the action is brought?  Can we learn from this loose memorandum what were the conditions of sale or the terms on which the deft was to be bound?  Surely not; & we cannot look to extrinsic evidence, in order to piece out an agreement, not contemplated by the Statute.  It is said that is we were to give effect to this Statute in the Colony of New South Wales we should be occasioning the greatest hardship, & breaking down a practice & course of dealing in these transactions, in which the public have acquiesced.  So far from any hardship I think [p. 162] the most beneficent effect will be derived from the rigid enforcement of this admirable statute, especially in a country like this in which the transactions of society are every day becoming more important and numerous.  If such a practice has obtained of conducting auctioneers sales in this loose manner I think the sooner it is corrected the better.  The authorities go to shew that this is a case within the statute of frauds, & I see no reason for departing from its salutary provisions.

Rule absolute for a nonsuit.

 

Notes

[1 ] See also Australian, 14 October 1831.

[2 ] All three judges sat on this day in R. v. Toole, 1831, and are likely to have done so on this case as well.

Published by the Division of Law, Macquarie University