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

Doe dem Hunt v Grimes [1835] NSWSupC 58; sub nom. Doe dem. Hunt v. Grimes (No. 1) (1835) NSW Sel Cas (Dowling) 510; and Doe dem. Hunt v. Grimes (No. 2) (1835) NSW Sel Cas (Dowling) 751

married women's legal disabilities - land law, adverse possession - ejectment - legal practitioners, professional privilege - conveyancing - customs and usages - land law, title - permissive occupancy - Court of  Claims

Supreme Court of New South Wales

Forbes C.J., Dowling and Burton JJ, 15 July 1835

Source: Dowling, Select Cases, Vol. 7, Archives Office of New South Wales, 2/3465

[p.35]

[1835

Wednesday

15th July]

[Wife, during coverture acquired possession by purchase of land.  Husband sold the land in 1816 & gave possession to the vendee, who held adversely for 19 years.  Held that Ejectment could not be maintained on the possession of the wife, without shewing a valid conveyance to her as a femme sole.

[An agent practising in the Court [p.36] of claims to Crown lands, though not a practising attorney, is privileged from giving evidence in this court of facts coming to his knowledge in capacity of agent, to the prejudice of a deft in ejectment who had been his client in the Court of Claims.]

[p.35]

Doe dHunt v Grimes

 

Ejectment on the several demises of Elizabeth Cassidy & Edward Hunt for premises in the parish of St PhilipSydney.  Not Guilty.  At the trial before Burton J it appeared that prior to 1816 one Tindal being in possession of the land in question, without a grant from the Crown, sold the same to one James Townsend, who again sold it to Elizabeth the reputed wife ofMichael Cassidy, for the price of 15£ giving her at the same time a paper writing drawn up by a school master.  These were not produced though notice to produce was given.  The wife built & kept a public house on the land & paid all and received all, & it was supposed that the land was paid for out of her own earnings.  In 1816 Michael Cassidy the husband sold the land to one Davis, & gave him possession by digging up a piece of the ground.  In order to fix the time at which Townsend said he bought the land of Tindal, it was admitted that Governor Macquarieleft the Colony in December 1821, & he said he bought the land about 29 months before that time.  Davis retained possession derived from Michael Cassidy, & by subsequent sales it came into [p.36] the possession of the present Deft.  The present lessor of the Plf derived title throughElizabeth Cassidy and proved that he purchased the land by deed of lease & release on the 2ndDec 1834 & declared upon the possession of Elizabeth Cassidy under Townsend.  The Deft had since applied to the Court of Claims to Crown Land for a grant, & the case was ordered to stand over until the action at law was tried.  It was contended on the part of the deft that prima facie, the fee simple was in Michael Cassidy the husband, & that to enable the Plf to recover he must go into title, & shew a legal conveyance from Townsend to Elizabeth Cassidy for her own sole & separate use, founded upon a grant from the Crown.  The bare possession of Elizabeth Cassidy under the circumstances proved was not sufficient to maintain Ejectment against the deft who derived title through the husband.  It was contended contra, that as both Plf & Deft derived title from the same common [p.37] source, namely Townsend, the Plf had launched such a case as put the Deft to proof of title.  The learned Judge was of opinion first, that asTindal had no more than a permissive occupation, it lay upon the plf to prove a legal title; & secondly to prove the conveyance from Tindal to Townsend.  The bare possession of E. Cassidy could only give a right to maintain Ejectment against an immediate wrongdoer.  (SeeDoe v Larkins vol. 83. p. 158. 182 vol. 85. p. 33.  Doe v Salter v 83. p. 159. 173. 201.  Doe v Hodges Ante vol. 3. p. 6.)  The deft was in upon a possessory title derived from Davisthrough Michael Cassidy.  To defeat this, the Plf must shew a legal title pursuant & none being shewn.  A nonsuit was therefore directed.

Wentworth (with who Foster) now moved to set aside the nonsuit and obtain a new trial. Tindal was the original possessor; he sold to Townsend & both Plf & deft derived title from him.  The nature of Townsend's estate was not proved but he sold & gave possession toElizabeth Cassidy, with a paper writing, nor produced.  According to the authorities mere possession is sufficient to establish a prima facie case, for it is a seisin in fee & renders it incumbent on the Deft to go into title.  Though there was not [p.38] a continued possession from 1816, still as between these parties both of whom derived title from the same source, that makes no difference.  This last circumstance distinguishes the case from those decided by this court, of Doe v LarkinDoe v Salter, & Doe v Hodges.  It may be conceded that if the Deft derived title from a totally different source, then the Plf could not hope to recover upon a possession in 1816, and afterwards interrupted, but as both parties derive title from the same source, such a possession for however short a time is sufficient prima facie case of titles to call upon the Deft to shew a legal title.

Plunkett S.G. & Stephen contra.  The plfs case rests upon the fact that Townsend bought ofTindal, & that he Townsend sold to Mrs Cassidy, & gave her a paper writing, but the contents of that writing are unknown.  In the first place the sale by Tindal to Townsend, would be void by the statute of Frauds without writing; but independently of that, there is no proof that Tindalhad any grant from the Crown.  A possession therefore under such circumstances is not sufficient to prevail against [p.39] the Defts possessory title derived from Michael Cassidy the husband.  That possession continued in Davis for upwards of 19 years.  Why have those, from whom the Plf derives title, slept on their rights, if they had any from 1816 when the premises were sold by Mr. Cassidy to Davis?  The case of the Plf goes upon an assumption of a conveyance in fee to the wife; but there is no proof of that.  It may have been only a chattel interest, & so go to the husband.  A wife no doubt may take a grant of land, but she cannot purchase during coverture.  If any thing, this was a purchase by the wife; but as they have not shewn an estate in fee in her, the whole foundation of the argument fails.  No doubt a husband may disaffirm, but if he does not, the legal estate purchased by the wife during coverture is in him, & will descend to his heirs.  If he fails to do it, she acquires only as a purchaser.  In Doe vAntill v Hodges, the Jury found as a fact that the husband [p.40] was in possession.  That was a case of husband & wife, the latter purchasing.  So here, the wife being the purchaser the husband gets possession, & under him Davies from whom the Deft derives title gets peaceable possession & has ever since held adversely.  He is not a wrong doer, & therefore prior possession without continuity cannot prevail in Ejectment, without proof of legal title.  This is the gist of all the recent decisions, & it makes no difference that both Plf & Deft derive title from the same source.

Forbes CJ.  I am of opinion that there is no ground for disturbing the nonsuit.  It is broadly contended that possession in fact is prima facie evidence of a seisin in fee, but like all other presumptions is liable to be rebutted.  Here the loss of possession; for although the wife was in possession in 1816 [p.41] (by what title does not appear) still Davis has held adversely ever since, having been let into peaceable possession by the husband.  The case therefore is like that of Doe v Hodges.  The Plf relies upon an anterior possession, discontinued & held adversely for a long series of years.

Dowling J.  The Plf did not go far enough.  He should have shewn title in the wife, to defeat the quiet possession given by the husband to Davies in 1816.  The Plf could not have been taken by surprize, as it was known on all hands that the Plf claimed through the wife, & the Deft through the husband.  There was a perfect understanding as to what right each rested upon, & therefore the Plf ought to have shewn that he could recover on the strength of his own title.

Burton J. concurred.

Rule Refused.

[p.42]At the trial of the cause, an agent practising in the Court of Claims to Crown Lands was tendered as a witness, on behalf of the Plf to state matters adversely to the title of the Deft.  He had been employed by the Deft to sustain his claim in that Court to a grant of the land in question, & he knew nothing of the circumstances of the case, but what he derived from his communications with the deft as his agent.  He was not an attorney or Solicitor of this Court, but he claimed the privilege of his client not to state matters adverse to his rights.  The learned Judge allowed the objection, & rejected the evidence, holding that the privilege in this case was analogous to that between an attorney & client in other Courts.

Published by the Division of Law, Macquarie University