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

Therry v Wilson and Carew [1833] NSWSupC 23

married women's legal disabilities - injunction - separation deed between spouses - estoppel - land law, title - Brickfield Hill

Supreme Court of New South Wales

Forbes C.J., Dowling and Burton JJ, 23 March 1833

Source: Sydney Gazette, 28 March 1833[1 ]

This was an action tried last term, to recover possession of a house and premises on the Brickfieldhill, under the following circumstances.  One Mary Finegan, or Carew, the wife of one of the defendant's, some time before her death, demised by deed, all her property to the plaintiff.  She had been separated from her husband a length of time, and during such separation, had amassed large possessions.  The defendant on her death, claimed her property in the right of her husband.  The assessors found a verdict for defendant.

On the part of the plaintiff, an injunction was prayed for and granted by the Supreme Court, to stay proceedings in the case; a bill and answer had been filed in equity, and the defendant now moved by counsel that the injunction should be dissolved, no matter having been adduced by the plaintiff to warrant the Court in continuing the same.

Dr Wardell, Mr Wentworth and Mr Therry appeared for the plaintiff; Messrs. Foster and Norton for the defendant.

The Court ruled that the legal right of the husband had not been destroyed, and in the absence of a deed of separation, a competent authority vested in the wife by her husband, giving her the power to convey the property under seal to the plaintiff, no matter appeared on the fact of the bill to warrant i.e. continuation of the injunction - Injunction dissolved.

 

Forbes C.J., Dowling and Burton JJ, 23 March 1833

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

 

[p. 12] Last term the court granted an injunction to restrain the plf from proceeding in this Ejectment until answer coming in [?] the Bill.  The answer having been filed, a motion was now made to dissolve the injunction.

The case upon bill and answer was this: John Crew having separated from his wife Mary, without died, she afterwards became possessed of the property in question, and obtained from the Crown a grant thereof in her maiden name of Mary Finnegan; and in June 1829 she executed a deed of gift of the land to the Rev. J. J. Therry.  After her death the donee [?] the possession & took the rent & profits.  The husband, who survived her sold the land to the lessor of the plf who brot. Ejectment on the ground that the property rested by [p. 13] law in the husband, though granted in the wife's name & purchased by her during coverture.

On the part of the Deft it was contended that the wife must be considered as the agent of the husband in this transaction, - and it was attempted to be shewn that the husband having left the wife destitute, she was of capacity to acquire the property as a femme sole & convey the same way.  It was also urged that the husband having acquiesced for 16 yrs in her separate enjoyment of the land, he was now estopped from impeaching the donees title.

Sed per Curium. -  There is no equity in this case, to restrain the plf from proceeding at law.

Injunction dissolved.

Wardell, Wentworth & R. Therry for Deft. & Forster & Norton for Plf.

 

Notes

[1 ] See also Sydney Herald, 4 April 1833.

Published by the Division of Law, Macquarie University