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

Doe dem. Smith v. Beeson and Weeden [1835] NSWSupC 18

ejectment - land law, title - conveyancing, fraudulent

Supreme Court of New South Wales

Burton J., 12 March 1835

Source: Australian, 17 March 1835

Doe on the demise of Charles Smith v. Beeson and Weeden - This was an action of ejectment, brought to recover possession of certain premises in Kent and Clarence-streets, in the town of Sydney - plea, the general issue.  The plaintiff and defendants both claimed title to the land under the following circumstances.  Mr. Anthony Best owned the property in the year 1826, and being about to leave the Colony for a short period, before his departure executed a deed of gift of the premises in question to the defendants in trust for his children then in England.  Upon his return to this Country, he sold the same to the plaintiff for the sum of £2000; and the question in this case was, whether a voluntary conveyance could be defeated by a subsequent sale to a bona fide purchaser for value, with a full knowledge of the conveyance.  The learned Judge told the assessors that the law presumed that where a person made two conveyances of the same land, it was made for the purpose of defrauding; and the question was, who should be the loser, the person who had given nothing for the land, or he who had paid a valuable consideration for it.  If the assessors were of opinion that the sale to the plaintiff was bona fide, then he was entitled to their verdict; if on thew other hand, they were of opinion it was a mere colourable sale for the purpose of defeating the voluntary conveyance to the defendants, they would find for the defendants.

Published by the Division of Law, Macquarie University