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

Doe dem. Robinson and Hughes v. Nott [1834] NSWSupC 24

land law, title - succession - permissive occupancy - primogeniture - ejectment - tenancy

Supreme Court of New South Wales

Forbes C.J., 7 March 1834

Source: Sydney Herald, 10 March 1834[1 ]

Friday, March 6.[2 ] - Before his Honour the Chief Justice, and two Assessors.

Doe. Dem. John Davy Robinson, heir at Law, and William Hughes and Martha his wife, the wife of the deceased, v. Nott.

Mr. Norton for plaintiff, Mr. Sydney Stephen for defendant.

Mr. Norton stated this was an action of ejectment, brought to recover certain premises, No. 72, situated in Castlereagh-street, formerly in the possession of John Davy Robinson, late Paymaster Serjeant to the 39th regiment, deceased.  This property was held by permissive occupancy, and not a grant from the Crown.  The property came into possession of intestate by purchase, the question would be whether such property held by a title of that nature, could descend to the heir at law, as a right.

An agreement was entered into between intestate and defendant, bearing date 6th April, 1832, to let the premises to defendant for one year, and one months notice be given to quit.  The rent was to commence from the 8th day of April, 1832.  Intestate died soon after making this agreement, and Mr. Nott then endeavoured to convert the property to his own use.  The widow made application, and was told that there was an heir at law, and the rents would therefore be paid to him.  Defendant immediately afterwards made an application in the name of his infant child, for a grant to the said property, but fortunately the plaintiffs discovered the intentions of defendant, and entered a caveat against the claim.  A notice was then given to defendant on the 5th March, 1833, to quit the same. - The claim of defendant had been followed up to the present time, with great assiduity.

Messrs. Dowse and Siderson were called, who proved that the agreement produced in Court was the original agreement entered into between the parties.

Mr. Henry McDermot, connected with the 39th regt., proved the birth and baptism of the heir at law, and that he was the eldest son of the intestate lawfully begotten, and that the parties had been married at Lisbon, and were entered in the regimental book to that effect.

Mr. Gurner, proved that an order of Court had been granted, to appoint the widow of intestate administratrix to this estate.

Mr. S. Stephen contended that nothing short of the letters of administration themselves, could be produced to prove that administratrix was clothed with that authority.

James George Hughes, proved the marriage of Wm. Hughes to the widow of the deceased, and that a proper notice had been served on defendant to quit the premises in question.

Mr. Stephen then addressed the Court, and contended that plaintiff should be non-suited on the following grounds.  1st. That evidence had not been given by the lessor of the plaintiff, that Marta Robinson was the administratrix to the deceased, and quoted 8 East and 13 East, Davies v. Williams and Eldon v. Keddle in proof of this., 2nd objection, that as the property was freehold, and two demises granted, the administratrix could not claim.  Mr. S. read the notice to quit, and contended that Mr. Nott was justified in not taking notice of it, as administratrix had no right to give it.  3rdly., no one had a right to call on Mr. Nott to give up possession on the 6th of April, as the agreement states from April 8th 1832, to the same date 1834, this he stated was most conclusive against the parties right to recover, it was avoid exercise of powers and therefore a nullity.  The notice ought to have been given at the expiration of the first year, as bona fide stated in the agreement; another objection was, that no proof had been adduced that the deceased was actually married to the administratrix at the time of the birth of the heir at law.

Mr. Norton, then said that the legal objection of his learned friend, must be supported by legal principles, a great deal of argument had been adduced from misapprehension.  There was an assumption that the agreeement was from April 8th, when in fact it was made on the 6th, and the demise of the premises was certainly made on the 6th.  The rent does not govern the time, there is no such thing to be found in the books.  After much able refutation of the objections advanced, the Chief Justice stated the nature of them to the  Assessors, and over-ruled them.

Mr. Stephen then called witnesses to prove that deceased had given receipts to defendant for rent.  The 1st was 1 month's rent £4, dated from April 8th to May 8th 1832, this was the first instalment, many others of the same nature were adduced.

Mr. Norton replied, and contended that not one of these receipts could be relied upon, only the first that was given, was any way likely, the others were vague and unsatisfactory.  He should rely entirely on the nature of the agreement which was dated the 6th day of April, at which time possession of the premises was given to defendant.

The learned Judge summed up, explaining minutely the nature of the case to the Assessors, and a verdict was returned for the plaintiff.

 

Forbes C.J., Dowling and Burton JJ, 15 March 1834

Source: Sydney Herald, 20 March 1834[3 ]

 

Doe demise of John Davy Robinson v. Nott. - The Chief Justice stated this was an action of ejectment, brought to recover possession of a house, No. 72, situated in Castlereagh-street.  In this case a verdict was given for the plaintiff.

Mr. Sydney Stephen moved for a new trial on three grounds; first, that the Judge had improperly admitted an order of the Court for letter of administration, instead of the letters of administration themselves; secondly, that the notice to quit had not been given at a proper time; thirdly, for that the verdict was generally for the lessors, of the plaintiff, whereas the lessors of the plaintiff claiming on two separate demises, in opposite interests, they cannot all be entitled to recover.  The Chief Justice, after much argument by both Counsel, decided that the verdict given was just. - Motion refused.

 

Forbes C.J., Dowling and Burton JJ, 15 March 1834

Source: Dowling, Proceedings of the Supreme Court, vol. 94, State Records of New South Wales, 2/3277

 

[p. 55] Ejectment for a messuage & premises in Castlereagh Street.  There were two demises declared upon.  1st on the demise of the heir at law, & 2d. on the demise of the Admors of the heir at laws's father.  Plea N.G.  At the trial before Forbes C. J. the Plf had a general verdict.

S. Stephen now moved for a new trial & made these joints.  1st that there was not due proof that the persons named as admors of the ancestor, were lawful administrators; second, that the lessor of the Plf had declared on two inconsistent [p. 56] demises; & 3d that the Deft had not sufficient notice to quit.  As to the first objection, the only evidence was the order of the court appointing the admors, together with the bond executed by them for the due accounting of the estate & affects of the deceased, whereas the letters themselves should have been produced.  Therefore there was not the best evidence of which the case was susceptible.  Secondly the demises were inconsistent, & yet a general verdict was found on both.  Thirdly, the late Robinson had in his life time agreed to let the premises in question to the Defts for one year certain -- & he was to continue on the same terms for a second year, ``unless one of the parties should previously give one months notice in writing to quit at the expiration of the first year.  The agreement stipulated that the rent should commence on the 8th April 1832, but the Deft was to have possession on the [p. 57] 6th April 1832.  The deft was served with a notice one month before the expiration of the first year to quit on the 6th April 1833.  Now this he contended was an insufficient notice.  The defts rent was to commence on the 8th April 1832 & was of course payable until the 8th April 1833 - so that the notice should have been to quit on the 8th April 1833, for if not the deft would have to pay ret for a portion of the time when he had no possession.

Norton contra was stopped by the Court.

Dowling J.  Upon the first point I am of opinion that the highest evidence was adduced at the trial, that administration had been granted to these parties. The letters of administration are only evidence of administration having been granted.  In their nature they are only secondary evidence, for they are only the copy of the original minutes of the court, drawn up in a more formal manner.[4 ]  Here the [p. 58] original order of the court, together with the bond, executed, for one administration, were produced in evidence.  As to the second objection, if there be any in consistency in a general verdict on two demises that may be cured by the Plf's (Jno Doe) entering up his judgment on such demise as he elects.  There is not one plf in Ejectment Ind. doe & the declaring on several demises, is only a variation of the mode in which he states his grievance, for more abundant caution; in like manner as a plf in the causes may declare in different courts varying the mode of stating his cause of action.  Then as to there notice to quit.  This is a special agreement between the parties & must be construed without reference to the rules generally applicable  between landlords & tenant. - the true question here is, ``[p. 59] the Defts holding as tenant commence?"  why it commenced on the day he got possession, namely the 6th April.  This tenancy therefore would expire on the 6th April following, although he might have agreed to pay rent up to the 8th of April.  Rent does not determine the question of tenancy.  A man may be a tenant without rent.  The rent is only the mode of valuing the beneficial enjoyment.  There the party had the month's this notice to quit, one month before the first year ended namely on the 6th April, the corresponding day to that in the following year, namely 6th April 1833 when his first year's tenancy would end.

Burton J.  I am of the same opinion.

Forbes C. J.  I have no doubt the plain meaning of the parties, was that the tenancy should commence the day the Deft was let into possession.  The deft. [p. 60] had possession on the 6th April.  The parties were then landlord & tenant, & provided either gave a notice to determine the tenancy one month before the expiration of the first year, that was sufficient.  There such a notice was given.

Rule refused.

 

Notes

[1 ] See also Australian, 10 March 1834.

[2 ] Friday that week was 7 March, not 6 March 1834.

[3 ] See also Australian, 17 March 1834.  The date of the hearing is taken from the Australian, not the Sydney Herald.

[4 ] Marginal note in manuscript: 13 East 220.  8 East 187 1 Lev. 25.  Bull N.P. 246 2 MSS 367.  Phill Ev. 378. 6th Ed.

Published by the Division of Law, Macquarie University