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

Doe dem. Walker v. Farley [1834] NSWSupC 22

conveyancing, fraudulent - fieri facias, land - land law, title - contempt of court, contact with witnesses - Burragorang

Supreme Court of New South Wales

Dowling J., 14 March 1834

Source: Australian, 17 March 1834[ 1]

Doe dem. Walker v. Farley. - This was an action brought to recover possession of a farm of 200 acres in Burrygorang, purchased by the plaintiff at Sheriff's sale, as the property of one James Riley.  The defence was that the defendant held a prior conveyance from Riley, and the object of the issue was to try the validity of this deed, which the plaintiff considered to be fraudulent.

The plaintiff having proved the judgment and execution against Riley, and the sale of the land to the plaintiff, together with the conveyance from the Sheriff, and the payment of the consideration money, closed his case.

Mr. Therry for defendant, after urging that there was no title proved in the plaintiff, which objection was at once overruled, proceeded to state, that defendants title was based on a deed executed some months before the sale by the Sheriff, which he would prove, and unless it could be shewn that such deed was fraudulent, and that defendant was cognizant of the fraud the defendant must necessarily have a verdict in the present action.  The learned counsel proceeded to comment upon the transactions between all the parties in any wise connected with the sale from which he contended that no case of fraud could be established.  He then produced the deed from Riley to Farley, and proved its execution by the subscribing witness, who however saw no money paid but heard some acknowledgment about money being due.

Riley was then sworn, and after making his statement, underwent a long and severe cross examination, in the course of which many facts of a suspicious character were elicited.  He stated that he and defendant were shipmates to the Colony, and had been intimates for 14 years; that he had lived on he farm without paying rent till he went to gaol, and after his discharge, that he had been living with defendant doing nothing; that he had made over all his cattle and a horse shortly before the sale of the farm to Farley; that he then owed him about £200; that he now owes him £19, but witness could only shew payment of about £120; that he had a law suit with one McDonough respecting which he had employed Mr. Sheehy; that it might be after this law suit commenced that he signed the deed; that he might have told several persons he would make over his property to prevent his opponent from getting a shilling out of him &c.  The witness however positively swore it was a bona fide sale for a debt really due.  Other witnesses were called to shew that Riley was in the habit of drawing orders on Farley, who paid them.  One witness for the reply proved that the action of McDonough was commenced before the date of the deed, and another after, which involved Riley's title to the land, and that he represented it on both occasions as his own; that he never mentioned Farley as the owner, and that he had said, although he would pay his own Attorney, he had a friend to whom he would make over his property to prevent the party opposed to him or his Attorney ever getting a farthing.

Mr. Therry commented upon this testimony, and Mr. F. Stephen replied.

Mr. Justice Dowling said that the question for the assessors was, whether the deed from Riley to Farley was fraudulent, and was Farley a party to such fraud?  If so, they would find for the plaintiff, if not for the defendant.  His Honor then enumerated the circumstances appearing on the evidence and urged by counsel as shewing the fraud, and Farley's participation in it, and commented upon the facts relied on by defendant to prove the bona fideness of the transaction.  The assessors immediately found a verdict for the plaintiff.

Counsel for the plaintiff F. Stephen and Sheehy, for defendant Therry and N. Allan.

In the course of the trial, a woman connected with defendant was seen going in and out communicating with his witness, which was proved, and the woman was committed to gaol, but after the case was over, in consideration of her ignorance.  His Honor discharged her from custody, on entering into her recognizance for £10.

 

Notes

[1 ] The trial notes are in Dowling, Proceedings of the Supreme Court, vol. 94, State Records of New South Wales, 2/3277, p. 21.

Published by the Division of Law, Macquarie University