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

Doe dem Loane v Cooper (1835) NSW Sel Cas (Dowling) 704; [1835] NSWSupC 53

conveyancing - registration of deeds - ejectment - Statute of Frauds

Supreme Court of New South Wales

In banco, 4 July 1835

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

[p.20]

[Saturday

4th July]

 

[The Registry Act 6. G. 4. No. 22 requires the memorial lodged at the Supreme Court office, to be signed "by some or one of the parties to the original deed or instrument".  A person signing himself to the memorial of a deed as "Attorney for" one of the parties is not a sufficient registration, to override a prior deed, not registered.]

 

Saturday 4th July 1835.

Doe d. R.W. Loane v D. Cooper.

 

Ejectment for premises situated in the parish of Willoughby in the County of Cumberland.  Plea Not Guilty.  At the trial before Burton J. and two assessors, it appeared that in 1829 one T. Thrupp conveyed the premises in question by deed of lease & release to the Deft Cooper, which were never registered according to the Registry Act.  In 1821 the lessor of the Plf had obtained a Judgment at law against Thrupp for 373£ & 45£ costs, and on the 1st August 1833 he executed a mortgage of the premises in question for 1000 years in consideration of the precedent debt, & accumulating interest since 1820.  Upon this deed the Plf founded his title.  The proof of its having been registered in pursuance of the Local ordinance 6 Geo 4. No. 22 was that on the 15h November 1833 Mr John Dillon an Attorney of the Court delivered [p.21] at the office of the Supreme Court a memorial setting forth the date of the deed, & the nature thereof, the names of all the parties & all the witnesses thereto, the land intended to be conveyed, and the consideration, & signed himself at the bottom of the Memorial "John Dillon" Attorney for Mr Loane".  The memorial was not signed by any of the parties to the deeds, agreeably to the requisite of the Ordinance, which is that "the said memorial shall be signed by some or one of the parties to the original deed or instrument."  There was no evidence that Mr.Dillon was in fact the Attorney of the Plf, or had any authority to sign the Memorial on his behalf.  There was no evidence offered to impeach the validity of the deed of lease & release from Thrupp to Cooper, nor was it [p.22] questioned as a bona fide deed.  The learned Judge was clearly of opinion that the deed relied upon by the Plf was not registered in compliance with the Registry Act, but assuming it to be sufficient, he left it to the assessors whether the mortgage deed was bona fide executed, telling them that if the Plf at the time he took the Mortgage, knew of the prior conveyance in fee to the Deft, it could not be considered a bona fide conveyance within the meaning of the local ordinance.  The assessors under this direction found for the Defendant.

Plunkett S.G. now moved for a new trial and proposed to shew that the deed of conveyance of 1829 to Cooper was void as being in fraud of creditors, & that as Loane had obtained a Judgment in 1821 that Judgment bound the land, and that then [p.23] the objection as to the sufficient registration of the Mortgage of 1833 could not avail; Sed.

Per Curiam.  It is now too late to raise that question.  No objection of this kind was made at the trial, and if there was anything in it, it must have been too important to escape attention.  No issue was raised on the validity of Cooper's deed.  Had any arisen, the Deft might have been prepared to meet it.  Adverting to the Judge's report, there is not a particle of evidence, upon which the assessors would be warranted in finding that Cooper's deed was fraudulent.  Assuming both deeds to be valid, the only question is whether Loane's deed was sufficiently registered, so as to make it override the unregistered deed of Cooper.

Plunkett being restrained to this question, then contended that [p.24] the deed in question was sufficiently registered within the meaning of the local ordinance inasmuch as the Plf had adopted the act of Mr Dillon in signing for him as attorney.  The policy of the Act was to prevent secret & fraudulent conveyances.  Here there was no secrecy or fraud, & the memorial was complete in every respect, except that it was not signed by any of the parties to the original instrument.  If this objection were to prevail, many registrations would become void.

Per Curiam.  We think the objection is fatal, and cannot be got over.  The local ordinance expressly requires the memorial to be signed by some or one of the parties to the original instrument.  That requisite has not be complied with, & therefore we cannot disturb the verdict. 

Rule Refused.

Published by the Division of Law, Macquarie University