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

Doe dem. Payne v. Ashby [1834] NSWSupC 104

land law, title - conveyancing, registration - squatters' title - Parramatta - fieri facias

Supreme Court of New South Wales

Dowling J., 19 September 1834

Source: Sydney Herald, 22 September 1834[1 ]

Doe dem.  Payne, v. Ashby.  -  This was an action brought to recover possession of a certain allotment of land in the Township of Parramatta.  It appeared that in the year 1828, plaintiff obtained a judgment on a warrant of Attorney against a person named Jackson, on which a writ of fi fa issued, and the property which now forms the subject of the present action, was sold by the Sheriff to Plaintiff, and possession given accordingly.  Subsequently plaintiff left the Colony, and Jackson by ejecting the person left in charge regained possession which, he held until the early part of the present year, when he disposed of it to the defendant in the present action the sum of eighty pounds in two promissory notes payable in seven and ten days, which were paid.  At the time of the levy, Jackson held no further title to the land, than the mere occupancy as a squatter, but His Excellency Governor Brisbane, on a personal communication he had with him on the subject, while on a shooting excursion in the neighbourhood, told him as he had taken possession, he might retain it until he was removed by the Government;[2 ] and there was a possibility of his obtaining a grant of it at some future day: this was the only tenure on which he held the land, although he had addressed memorials to Governors Brisbane and Darling on the subject, but never received any answer.  With his Excellency Governor Bourke however, he was more successful, and in the year 1832 obtained legal possession.  The Colonial Secretary's letter, conveying the title was put in and read.  About nine months ago the plaintiff returned to the Colony, and finding the said land alienated in the manner described, brought the present action.  For the plaintiff, it was relied on that the Sheriffs bill of sale established his right, to a property which was generally understood to be, and known as the property of Jackson.  It was held on the part of the defendant, that Jackson, at the time of the said sale by the Sheriff in 1828, had no title nor interest in the property, and therefore no bona fide conveyance could have been effected from Jackson to the plaintiff through the Sheriff.  It was also contended that defendant was entitled to a verdict, inasmuch as no register of such conveyance had been made by the plaintiff, whereas the conveyance from Jackson to the present defendant, had been duly registered, and agreeably to an Act of Council, took priority of all un-registered conveyances.  Mr. Kerr on behalf of the plaintiff, contended that a Sheriff's bill of sale did not come within the meaning of the act, recited by the Counsel for the defence.  His Honor the learned Judge in putting the case to the Assessors, was clearly of opinion, that a Sheriff's bill of sale came within the meaning of the Act, and should have been registered to render the conveyance tenable; on that ground in point of law, the defendant was entitled to their verdict.  The Assessors returned a verdict for the defendant accordingly.


Dowling J., 11 October 1834

Source: Sydney Herald, 16 October 1834


Doe dem. Payne v. Ashby. - In this case, Mr. Kerr moved for an attachment for contempt against plaintiff, for the non-payment of £34 12s. 3d.  The case had been tried during the present term, and a verdict had been returned for defendant.  Writ of capias ad satisfaciendum[3 ] had been issued, which plaintiff had refused to pay.



[1 ] The trial notes are in Dowling, Proceedings of the Supreme Court, State Records of New South Wales, 2/3286, vol. 103, p. 30.

See also Australian, 23 September 1834.  It reported the judge's directions to the assessors as follows: ``Upon this evidence, the learned Judge directed the Assessors, that as the Act of Council 6 Geo. IV.No. 22, called the Registry Act, provided that the deed first registered should take priority if executed for a bona fide consideration, if they were of opinion that the conveyance to the defendant was so executed, they would find their verdict for them.  If, however, they thought it was a fraudulent conveyance, they would find for the plaintiff.  The learned Judge was of opinion, that the general terms used in the Act of Council required Sheriff's transfers, as well as others, to be registered, if they at all affected lands."  The Australian also reported the Mr Kerr acted for the plaintiff, and Messrs Keith and Nichols for the defendant.

By (1833) 4 Wm 4 No. 10, the governor was authorised to appoint Commissioners of Crown Lands to oversee the crown lands of the colony.

[2 ] Governor Darling told Hay in 1831 that the limits of settlement, beyond which grants and leases were not made, could not prevent people sending cattle to graze beyond there: Darling to Hay, 17 February 1831, Historical Records of Australia, Series 1, Vol. 16, pp 88-89.

[3 ] The writ of arrest for non-payment of a judgment debt.

Published by the Division of Law, Macquarie University