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

Nixon v Bartley (1831) NSW Sel Cas (Dowling) 381; [1831] NSWSupC 63

land law, conditional crown grant - promissory note, consideration

Supreme Court of New South Wales

Forbes C.J., Stephen and Dowling JJ, 1 October 1831

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

[p. 100] Where a veteran soldier obtained land from the [p. 101] Crown of which he was to have a grant upon certain conditions, & before performing the conditions he sold the same to A for valuable consideration & he gave his promissory note for the amount of the purchase with knowledge of the Veterans conditional title, & was let into possession but was afterwards ejected by the Crown.  Held in an action on the note that he was liable.

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

[p. 130] Assumpsit by the payee agt the maker of a promissory note for 40£. payable 12 months after date.  Plea against General Issue with notice to prove consideration.  At the trial beforeForbes CJ. it appeared that the Deft had obtained possession of an allotment of land near Maitland as a retired veteran of which he was to have a grant from the Crown upon the performance of certain conditions.  [p. 131] In April 1830 he sold this land to the Defendant, who gave him the promissory note in question as the purchase money taken from the Plaintiff a bond in the penal sum of £500 conditioned that he would get the deed conveyance perfected in 7 years or forfeit the said penalty.  The Defendant was let into possession of the land and enjoyed it, until he was turned out by the authority of the Govt on the ground that the Plaintiff had no authority to sell the land.  The defence was that as the consideration for the note Plaintiff could not recover.  The judge was however of opinion that as there appeared to be no fraud or misrepresentation & as the consideration had not wholly failed, for the Defendant had in fact been let into possession, the Plf was entitled at law to recover upon the note & accordingly the Plaintiff had a verdict.

A motion having been made for a new trial on the ground of misdirection, the case was argued by F. Stephen for the Plf & Foster. for the Deft.

Stephen J thought the direction of the Chief Justice right.

[p. 132] Dowling J I am clearly of opinion that the Plf is entitled to recover.  Any the slightest lawful consideration is sufficient to support assumption a promissory note expressed to he for value reced.[1 ]  I agree that where there is fraud, or misrepresentation to induce a man to give his promissory note, the case would be different. Here there was no fraud or misrepresentation.  The Deft with his eyes open purchased this land from the Plf knowing that he had not the means of perfecting the title at the time.  He is however let into possession of the land & enjoys it for a time.  This is a good consideration to support this action though he may in fact have been turned out by the Crown for the Plfs default.  There does not appear to have been any warranty of title or covenant for quiet enjoyment, but even if there had, the remedy would be upon he special agreement, & as advantages w.d be taken of the Plfs default in answer to this action on the note. [p. 133]  This is not like the cases on the Gin act, or farming acts, where it has been holden, that the consideration being illegal in part, vitiates the instrument.  It does not necessarily follow that the Govt act legally in turning the Deft out of possession, & the Plf wd not be liable for another's act.  Beside by the bond the Plf has 7 yrs to perfect the title in.  I can not distinguish this from the case ofMoggridge v Jones 14 East. 486. where it was held that A having agreed to execute a lease of premises to B, who was to pay a certain sum for it; if B who was let into possession accept a bill for the consideration money, drawn on him by A it is not defence to an action of the Bill by A agt Bthat the former refused to execute the lease, but his remedy is on the agreement.

Rule refused.


[1 ] "received"

Published by the Division of Law, Macquarie University