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

Blower v Larkin [1833] NSWSupC 94

land law, possessory title - tenancy - Prospect - ejectment - land law, adverse possession - dower

Supreme Court of New South Wales

Forbes C.J., Dowling and Burton JJ, 5 November 1833 

Source: Dowling, Proceedings of the Supreme Court, Vol. 83, State Records of New South Wales, 2/3266[1 ]

[p. 182] Ejectment for a house, land & premises situate at Prospect.  Plea General Issue.  At the trial before Burton J. the lessor of the plf had a verdict, with leave to the Deft to enter a verdict for himself if he should shew a good legal title.

The case was this: About 17 years [p. 183] since one William Blower, being possessed of the premises in question, (by what title did not appear) granted a lease thereof to the deft. for 5 years, and at the same time executed a deed of bargain & sale to him, bearing even date with the lease, for valuable consideration, to him & his heirs forever.  The deed of sale contained an express proviso that the same was not to take effect until the expiration of the term of 5 years named in the lease.  At the time of the execution of these instruments the deft was formally put into possession of the premises in confirmation of the apparent intention of the parties.  He then withdrew and allowed Wm. Blower to remain as before, in possession.  Before the expiration of the 5 year lease Wm. Blower died, leaving Martha Blower the lessor of the plf in possession.  She had lived with him for many years as his wife, but there was no proof of their actual marriage.  From that time until September 1832 she remained in the peaceable & quiet posser of the premises, at which time the deft forcibly evicted her therefrom & took possession himself.

In a former action (Ante vol 85 p. 33) she recovered damages [p. 184] against the deft in trespass & now brought the present ejectment.  The lessor of the plf rested her case upon a bare possession & enjoyment for 10 or 11 years prior to the time she was forcibly evicted.  The deft relied upon prior possession delivered to him by William Blower, under & by virtue of the lease & bargain & sale above mentioned, & contended that as against the plf., he had the legal title to the premises.  In reply it was contended that the priority of possession relied upon by the deft, did not affect the right of maintaining ejectment by a person actually in the peaceable possession immediately before the forcible eviction.  For this Doe v Dyball (Mords & Malk 346.)

The case was argued on a former day by Keith for the plf & J. Stephen for the Deft.

c.a.v.[2 ]

The judgment of the Court was now delivered by Forbes. C.J. - We are of opinion that the lessor of the plf is entitled to recover.  It is a well settled rule, that in all cases of Ejectment the plf must prevail by the strength of his own, & not by the weakness of his adversary's title.  Another settled [p. 185] rule is that possession gives title against all the world until a complete legal title is shewn in the person claiming against a possessory title.  In the present case it is clear that the plf prima facie established a right to maintain the ejectment by shewing a peaceable & uninterrupted possession of the premises for a period of about 13 years, when the deft came & forcibly dispossessed her.  How then did the deft propose to shew a paramount legal title?  He derived title through one Wm. Blower, the supposed husband of the plf., there being however, no proof that they were legally married.  It appeared that about 16 or 17 years since the deft was put into possession of the premises by Wm. Blower, pro formâ, - that Blower still remained in possession until the time of his death, which time did not appear, but it was some time within 5 years after.  At the time of receiving formal possession, it appeared that Blower had executed two instruments in favour of the deft, bearing even date, the one of a lease of the premises for 5 years, & the other a deed of bargain & sale of all his interest in the premises, with a proviso, that the latter should not [p. 186] take effect until the expiration of the 5 years.  At the expiration of the 5 years the grantor was in no condition to make a good & perfect title, he having been then dead about two years.  These instruments therefore, could not be taken as shewing an absolute legal title in the Deft.  There is no doubt, that taking the two instruments together it was the intention of Wm. Blower to convey absolutely all his interest in the premises to the deft; but in a court of law we can not give effect to that intention, without sufficient instruments.  There was nothing to shew even that Wm. Blower, had himself such a legal title, as to give him the right of conveying to the Deft the reversionary interest in the premises.  Indeed the [?] machinery of a lease for years, bearing even date with a bargain & sale, which was not to take effect until the expiration of the lease, affords pregnant evidence that he had himself only a defeasible title.  Probably it was to avoid a covenant not to [p. 187] alienate without the consent of the crown.  As the deft therefore could make out no legal title, by the instruments relied upon, the simple question is, whether he has gone far enough by shewing a prior possessory title of 16 or 17 years standing, in the face of an adverse possession in the plf for 13 years.  We consider the present action is to be regarded as if Larkin the deft were bringing the action against the plf.  Then could Larkin have prevailed in the action?  We think he could not, for although he might have had prior possession in point of time 16 or 17 years ago, yet he must have been in the uninterrupted possession during all that time before he could have recovered.  This is negatived by the fact that Mrs. Blower, had 13 years peaceable possession immediately prior to the time she was forcibly evicted.  We are not called upon to consider whether Mrs. Blower, as the widow of Wm. Blower, had any privity of estate in right of her supposed husband, because there was no proof of a marriage.  There is an adverse peaceable possession for 13 or 14 years, which excludes the [p. 188] consideration of the question whether Wm. Blower had such a title from the crown, as could support his intended consequence of the premises to the deft.  Even supposing that could have been established, and the question might have been involved whether, assuming Mrs. Blower to be the wife of Wm. Blower, she would not have her right of dower, unless it had been barred, or dower assigned, so as to prevent her from disturbing the defts title.  The deft not having shewn to our satisfaction a sufficient legal title, we think the verdict for the plf must stand.

Judgement for the plf. -



[1 ] See also Dowling, Proceedings of the Supreme Court, Vol. 85, State Records of New South Wales, 2/3268, p. 33.

[2 ] Curia advisari vult: the court wishes to be advised, or wishes to consider its decision.  This means that the judgment was not delivered immediately.

Published by the Division of Law, Macquarie University