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

Doe dem Unwin v Salter [1833] NSWSupC 109

land law, title - ejectment - conveyancing - land law, Crown grant, by Governor Macquarie

Supreme Court of New South Wales

Forbes C.J., Dowling and Burton JJ, 4 November 1833

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

[p. 173] Ejectment for premises situate in Argyle Street Sydney.  Plea General Issue.  At the trial before Burton J. it appeared in evidence that in the time of Governor Macquarie one Thomas Howard Greenway applied for a town allotment of land, in Sydney, and sent in the sketch of the plan of a house which he proposed to build on the land.  What answer was given to his application did not appear, but his proposed plan of the intended house, was returned to him with the words "approved L. Macquarie" written thereon, in the handwriting of Gov.r Macquarie.  The deft upon the strength of this had taken possession of the land & remained in possession some years, but how many did not appear.  On the 10h. December 1832 Greenway executed a lease of the land to Unwin the lessor of the plf.  At this time the deft had gd peaceable possession of part of the land, had enclosed, and built on it.  Upon the execution of the lease [p. 174] the plf demanded possession, which the deft promised to give, but afterwards failing this action was brought.  The plf relied upon the possessory title of Greenway & gave nothing but the plan of the proposed house in evidence.  The judge was of opinion that the plf had shewn no legal title to maintain ejectment.  The deft was prima facie in peaceable possession at the time of the Ejectment served, & as there was no evidence of the defts having forcibly evicted the plf. the latter had not better title than the deft.  The plf was therefore nonsuited.

Wentworth now moved to set aside the nonsuit & to obtain a new trial, on the ground that as it was proved that the lessor of the plf was in actual possession before the Deft, that was sufficient to support Ejectment, without proving title, according to Hughes v Dyball (1 Moody & Walker. 346.)  At all events the plan [p. 175] with the words "approved L. Macquarie" upon it amounted to a licence to occupy, which was good against a wrong doer.

Kerr. Contra.  The lessor of the plf stands in the shoes of Greenway.  If the latter had not title to maintain Ejectment, then Unwin had none.  No doubt, according to Hughes v Dyball prior possession is sufficient to maintain Ejectment, where the possessor is forcibly evicted by a wrong doer.  Here, however, the plf not only fails to shew an actual corporal possession at the time of the demise laid, but shews no legal right of possession.  The paper called a plan, shews no title, nor a licence to occupy.  In the case of Hughes v Dyball the deft took forcible possession of the premises.  The plf was in actual contractual possession at the time of the eviction, & the deft forcibly turned him out.  That was the point of that case.  Here the Deft had had a peaceable quiet possession, & the plf was out, & had for some time previously been out of possession & could now shew no legal title, [p.176] or right of possession.

c.a.v.[2 ]

See post - for decision of Court. p. 201.


Forbes C.J., Dowling and Burton JJ, 2 December 1833

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


[p. 201] Forbes C. J delivered the judgement of the Court in this case.

We are of opinion that the plf has made out no title to recover in Ejectment.  The plan of the house put in was no evidence of title alone.  There is no doubt that as against the Crown nothing less than a grant duly executed could be effectual.  The plf rested his right to recover upon a prior possession in Greenway, & he relied upon Hughes v Dyball 1 Malk & Moody 346.  That case has been [p. 202] frequently cited in this court as an authority to shew that priority of possession is sufficient to maintain Ejectment, no matter how long prior the possession may have been had before action brought, though uninterrupted.  The possession seems to have been under misapprehension as to the effect that decision, & the true principle on which it was determined.  We have reserved the discion [sic] of the present case, until we had an opportunity of looking at that authority.  Priority of possession there clearly means where the plf was a continuing prior & peaceable possession of the land at the time he is turned out by a wrong doer.  There the plf was actually in the peaceable possession, & the Deft came & turned him out forcibly.  The court under such circumstances would not [?] the plf to the proof of his title, the Deft [p. 203] being a mere wrong doer.  Now here the plf had not a possession at the time he brought the action.  His possessory title was then out of him.  The deft was in peaceable possession & therefore the plf was bound to shew a good legal title, which he failed in doing.  In the case of Allen v Rivington 2 Sawed. 111 & Doe v Dunburbery 2 T.R. 719. & Roe v Hughes 4 Burr. 2044. - the point of priority of possession did not arise.

Judgement for the Deft.[3 ]


Forbes C.J., Dowling and Burton JJ, 2 December 1833

Source: Australian, 9 December 1833


We have been obligingly favoured with the minutes of the following elaborate judgment, which, as it determines a question of great importance in this Colony, where tithes to land depend so frequently upon a bare occupancy, we have published at length:-

Monday. - Doe ex demise Unwin v. Salter -

Ejectment brought to recover the possession of a certain piece of ground in Sydney.  The plaintiff claimed under a conveyance from Greenway, whose claim was founded upon possession alleged to have been given to him by Governor Macquarie in the year 1820.  This Court has had occasion to lay down the rule, that as against the Crown, nothing less than a grant executed in due form will be effectual, because it is judicially known to the Court, independently of the established principle that the King can only alienate by records that by His Majesty's instructions to his Governor, which always accompany the Royal Commission, and form a part thereof, the Governor is directed to execute grants in due form, of all the Crown lands which he has agreed to convey to the inhabitants.  This rule, however, has been confined to cases where the title of the subject has been disputed on behalf of the Crown.  In cases between party and party, an actual occupancy obtained or, sanctioned by the assent of the Governor, as the King's legal Representative, has been deemed a sufficient possessory title, upon which to bring or defend an ejectment.  In the case before the Court, it contended that Greenway had obtained the express permission of the Governor to occupy the land in dispute, to prove which, a plan of a certain projected building was exhibited at the trial, with a memorandum in writing, bearing the signature of Governor Macquarie, purporting to be an approval of the Governor of the intended plan.  The plan of the building was accompanied by the words "approved, L. Macquarie," and this was the only proof of the grant of the Governor to Greenway's possession, upon which the plaintiff rested his leal title.  The learned Judge left it as matter of fact for the Assessors to say whether they were satisfied upon the proof produced before them, that Greenway had actually received possession from the Government of the land in dispute.  The Assessors found a verdict for the defendant, thereby negativing the possessory title set up in Greenway, from whom the plaintiff derived his title.  It appears to us that the finding of the Assessors was right, and that the plaintiff has failed to establish is possessory title in Greenway, which he undertook to prove at the trial.  But it is contended that waiting his derivative title under Greenway, the plaintiff was in the actual possession of the ground in the year 1832, under his conveyance from Greenway, and that the defendant, by intruding upon that possession became a trespasser, and consequently liable to be ejected.  And the case of the demise Hughes v. Dyeball (Moody & Walker, N. P. Rep. 346) was cited to shew that possession however short, is a sufficient prima facie title in ejectment against a mere wrong doer.  The authority of this case is not disputed.  But as it is frequently cited, under what we consider to be a misapprehension of the true principle upon which it was decided, it will be proper to take a short view of the case itself, in connexion with the other cases to which it would appear upon a hasty view to be in some degree opposed.  So far back as the case of Allen v. Revington (2 Saunders 111) it had been decided that in ejectment, priority of possession alone gives a good title to the lessor of the plaintiff against the defendant and all the world, excepting against the person legally entitled to the estate.  In that case it appeared by the special verdict that the lessor of the plaintiff had a priority of possession, and that the defendant had ousted him, and there was no title found for the defendant, and it followed upon clear principle, that as the case stood upon the record, the plaintiff was entitled to recover his term against the ejector, upon the mere strength of his priority of possession.  The case of doe v. Barber (2 T. R. 749) has been cited as adverse to the former case; but upon a careful consideration of the grounds upon which it was decided, it will be found not to interfere with the true principle of prior possession.  In doe v. Barber, the plaintiff's lessor claimed a Rectory house, which had been let to him for 21 years by the Rector, who was  a non-resident, and in direct violation of the statute of Elizabeth, and the Court decided that the lease was against the policy of the statute, and therefore void - the point of mere priority of possession was not raised in that case, because the plaintiff's title was contrary to  law, and the right of possession still remained in the Rector, and in ejectment it is a sufficient answer to the action, if the defendant can prove the title out of the plaintiff, although he have no title himself (Butler's N. P. 110.)  The case of Roe v. Harvey has also been mentioned (4 Burr 2484) but he plaintiff in that case claimed under a person who was proved never to have been in the possession of the estate.  Lord Mansfield laid great stress upon that circumstance, and to it must be referred that part of his Lordship's argument in which he lays down the rule, that "the plaintiff cannot recover but upon the strength of his own title for possession give the defendant a right against every man who cannot shew a good title.'  But assuredly this rule to be of any value, must be reciprocal - it must apply to the possession of one party as well as of the other.  The law will not permit a defendant, who has entered upon the prior possession of the plaintiff, and turned him out, to set up his own tortious act, as conferring a possessory title upon himself to the exclusion of the defendant.  As between the immediate parties better title, and upon this plain principle the case of Hughes v. Dyeball appears to have been decided.  We have thought it necessary to go a little further into this case than perhaps was strictly necessary, because it has been  frequently referred to in this Court, and relied upon to support a title founded upon some insulated act of authority, indicating a former possession, but afterwards interrupted and long discontinued, which it certainly does not go the length of supporting. -  The plaintiff there was in possession; the defendant came and turned him out, and then required him to show his title; but the Court ruled that the defendant was first bound to shew his title.  Applying this case then to the case before us, how stands the proof of first possession?

As matter of title, independently of possession, the plaintiff has not been able to prove any thing, bearing the semblance of title from the Crown - and there is no proof of the plaintiff having prior possession, and the defendant's having intruded upon his prior possession, and ousted him.  It is true that it is not necessary to have an actual corporal possession of land, to amount to a legal possession - but where the right of possession is claimed upon the mere ground of occupancy, the proof of an actual occupancy, at the time of he alleged trespass must be positive and clear - something more than a mere claim, or some act of ownership performed upon parts of the ground, at some antecedent time - for the to possession acquired by occupancy, merely is determined as soon as such occupancy ceases.  Now, looking at the evidence before us, what proof is there that the plaintiffs lessee was in the actual possession of this ground, at the time of the demise laid in this action, and that the defendant came and ousted him?

It appears to us that the plaintiff has failed to make out any case which will entitle him to to [sic] treat the defendant as an intruder upon his legal right, and to eject him by the process of this Court.  If there be any equity in this case, it is proper for the consideration of the Commissioners recently established by Act of Council for such cases.  In this Court the plaintiff having failed to make out a legal title, the judgment must by for the defendant.



[1 ] There were many cases like this, in which the court struggled with the informality of an earlier era.  See, for instance, Goderich to Bourke, 22 March 1833, Historical Records of Australia, Series 1, Vol. 17, pp 53-56.  Eventually the Legislative Council established a Court of Commissioners to deal with such cases.  See Bingle v. James, 1834.

[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.

[3 ] Justice Dowling also recorded his own view of the matter in Dowling, Proceedings of the Supreme Court, Vol. 83, State Records of New South Wales, 2/3266: ``[p. 159] A person named Greenway had originally applied for a grant of town land to Gov.r McQuarie [sic], & submitted to that Gov.r the plan of a house he proposed to erect thereon.  The Governor wrote on the plan "approved L. Macquarie", but Greenway had no other document to shew title.  He took possession of a portion of the land he applied for, & built thereon.  The deft afterwards took possession of [p. 160] the other part.  Greenway afterwards executed a lease of the whole to Unwin, who brought this [?] to turn the deft out of the part he had possessed himself of.  Before Burton J. the plf was nonsuited, the judge being of opinion that plf had shewn no legal title to maintain Ejectment.  On subsequent motion for new trial the Court was of the same opinion.

``Dowling J.  I think the mere plan of a propose house to be build on the land, with the words "approved L. Macquarie", is not sufficient for plf as lessee of the land, under the person by whom the plan was drawn, to entitle him to maintain Ejectment agt. deft who was actually in peaceable possession at the time of ejectment; for supposing pf's lessor to leave [p. 161] had prior possession, that must be a rightful possession by good title either in grant, or permissive occupation from the Crown.  This he had not, as far as we know by evidence, & the plf can only recover by the strength of his own title."

Published by the Division of Law, Macquarie University