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

Doe ex diem Antil v Hodges (1835) NSW Sel Cas (Dowling) 701; [1835] NSWSupC 36

ejectment - land law, adverse possession - permissive occupancy - succession - trusts - reception of English law, land law - conveyancing - land law, title - married women's legal disabilities

Supreme Court of New South Wales

Forbes C.J., 23 March 1835

Source: Sydney Herald, 26 March 1835[1 ]


Monday. - Before His Honour the Chief Justice and a Special Jury.

Doe d. Antil v. Hodges. - This was an action of ejectment brought by the plaintiffs, trustees under a decree of Chancery, to the estate of the late Quarter Master, Sergeant Hugh Macdonald, of H. M. 46th regiment, to recover possession of a certain allotment of land, situate at the corner of King and Kent-streets, and now in the occupation of the defendant, who has erected a valuable house thereon, in which he resides, and which is known as the public house called the Printers' Arms.  It appeared in evidence, that the allotment in question, was originally what is called a soldier's allotment, and had been granted to a veteran of the 102nd regiment, named John Hore, by whom it was sold to a sergeant Scottick, of the 46th regiment, who after being in possession of it for two or three years, again sold it to Mrs. Macdonald.  This allotment extended from Kent to Clarence-street.  The regiment being called to India, Macdonald proceeded on, leaving his wife in this Colony to manage his affairs until his return, and leaving a sum of money in the hands of Mr. J. Chisholm to be applied to the use of Mrs. Macdonald when required by her.  With this sum she erected a tenement on that part of the ground, which extended from the corner of Clarence-street to the point where the house lately known as the Black Horse, now stands, comprising about the half of the whole allotment; leaving that portion which forms the ground of the present action, vacant.  After a lapse of two years Mr. Macdonald returned from India, and occasionally paid a visit to this property, inspected the improvements that had been made by his wife during his absence, over which he assumed a general ownership, and was about negotiating with one of the witnesses for the quarrying of stone on the Kent-street corner, now in the occupation of the defendant, for the purpose of erecting a tenement, when he became ill which terminated in his death.  By his will he appointed John Thomas Campbell, Esq., then Colonial Secretary, and Major Antil, executors, empowering them to dispose of his property, real and personal, for the benefit of his wife and four children, among whom it was to be divided in equal proportions, to be paid at certain periods as set forth in the will.  The original trust deed was lost, but was proved by Mr. Chambers to have been duly executed and registered in the Court.  In addition to this piece of ground, Mr. Macdonald was possessed of an allotment in George-street, on which he had built the house now occupied by Mr. Tyrer, haberdasher; and also premises in York-street, known as the York hotel, with other property of less value.  Some time after the death of Mr. Macdonald, his widow again married a sergeant Mathew Bacon, of the 46th regiment, who finding an eligible allotment adjoining his wife's property in George-street, in the possession of an old pensioner named Hughes, which was granted by Governor Phillip, a negociation [sic] was commenced with him, for an exchange of his allotment in George-street, for the portion of ground in question which was ultimately effected; Hughes took possession of the allotment in King-street, and Sergeant Bacon that of Hughes', on which he subsequently erected the buildings known as the Wellington Brewery, and the deceased John White's Star Manufactory, afterwards sold in execution at the suit of Mr. Terry, in satisfaction of Bacon's debts; Hughes remained in possession about twenty months, when he sold the ground received from Bacon to one Francis Spencer, who subsequently kept the public-house on the property in question, called the Black Horse; Spencer ultimately became involved in debt, and an action was commenced against him at the suit of Robert Campbell, jun., Esq., when the said property was sold by the Sheriff; the defendant in the present action became the purchaser in the year 1822, for £170, and subsequently erected the house known as the Printer's Arms, which he now occupies.  Some time after the death of the testator, McDonald, the executors were applied too to effect a demise of certain of the property for the benefit of the family, but they refused to set; when an application was made to the Court, and a bill filed in Equity for the appointment of other trustees to act in their stead; a decree was finally obtained in 1830, under which the trusteeship was transferred to Mr. James Scott, since deceased, and Mr. Stephen McDonald the eldest son of the testator; who, arriving at a knowledge of the history of the demise of that portion of his father's property now in question, brings his action to recover the same, for the benefit of himself and the other children of the testator, under the said will.

The evidence of Hughes went to shew, that at the time the property was transferred from Scottick to McDonald, no regular conveyances of property were usual in the Colony, but merely passed from hand to hand.  The conveyance to Hughes was drawn up by a person named Oldfield, who testified to Mrs. Bacon being a party to the execution, but not certain as to her being present at its delivery.  A Mr. Brackinrig, also present on the occasion, testified that Mrs. Bacon was not present on the delivery of the deed which conveyed the property in question to Hughes.

Mr. Wentworth, on the part of the defendant, contended that his client was entitled to a non-suit, inasmuch as no possessory title had been made out for the plaintiff, which would enable him to sustain an action of ejectment or trespass against a subsequent wrong doer, quoting an eminent legal authority in support of the application; which was, however, over-ruled by his Honor, who was of opinion, that sufficient as to that fact had been adduced to carry the question to the Jury.

On the part of the plaintiffs it was contended, that possession had never been legally out of Macdonald; the conveyance by the widow, of property which could only be devised under the will of the testator, was invalid.  The defendant was bound to satisfy himself as to the nature of the title to the property he had so purchased, and not only so, but the law required him to go so far as to see that the purchase-money was appropriated so as to meet the intention of the testator, expressed in his will.  It was also contended, that a sufficient possessory title was made out to enable the plaintiffs to maintain the action.

His Honor, in a minute recapitulation of the evidence, put the case to the Jury on the following points:- It was an established principle of law, that a party seeking to recover in an action of this nature, must stand on the strength of his own right, and not on the weakness of that of his adversary.  The question then in this case, which first presents itself, is, whether McDonald had acquired such peaceable possession of the ground in question, in his own right, as to enable him to support an action of trespass; and secondly, whether the wife had a separate possession, which she alienated after his death, and which he had no power to devise by will, having only a chattel interest, which terminated in his death.  If property be conveyed to a married woman, and purchased by her, not as separate property in her own right, but as the agent of the husband during his absence, the law holds that such conveyance is legally made to the husband.  It is not to be concluded, that because the wife did so act as the agent of her husband during his absence, that such transactions are effected purely on her own account; and very strong proof would be required that the property was conveyed to her in her separate interest to establish the fact.  The evidence of Mr. Chisholm went to shew that McDonald had left funds to be at the disposal of the wife; but whether any portion had been applied to the Kent-street property or not he could not say; this evidence certainly went to shew the agency of the wife.  The impression on the minds of all the witnesses was, that the property was McDonald's in his own right; the wife therefore had no power to convey.  The question then turns on the point, had McDonald a sufficient possessory title to enable him to recover in an action of trespass, and which title was legally and regularly devised to the trustees under the will, and again to the plaintiff's under the degree of the Court.  Had that tile been abandoned until the property was found to have acquired a great value, when the parties now stept [sic] forward to dispute the established possession of the defendant.

The Jury retired for a few minutes, and returned a verdict for the plaintiff.


Forbes C.J., Dowling and Burton JJ, 31 March 1835

Source: Australian, 3 April 1835[ 2]


Doe Antill v. Hodges. - This was an action of assumpsit and ejectment, wherein the jury had returned a verdict for the plaintiff.  A new trial was moved for by Mr. Wentworth, for the defendant on the grounds of the want of evidence of possession by the plaintiff, who had only proved a priority of title; also on a want of direction from the learned judge before whom the case was tried.

Their honors considered this to be a case of the greatest importance to every land-holder in the Colony, and would look into every part of it before they gave judgment.


Forbes C.J., in banco, 21 April 1835

Source: Dowling, Select Cases, Vol. 4, Archives Office of New South Wales, 2/3463


[p. 6]


[21st April]


[In order to sustain Ejectment upon a bare priority of possession, the ouster must be between the immediate parties to the Ejectment.  Where one died possessed of lands for two years & devised the same to trustees in trust, & during 17 years afterwards several successive persons held the land adversely to the Trustees & devisers, & there had been no grant of the Crown to the devisor or those under whom he claimed:-  Held that Ejectment would not lie after the deft who had possession under a sheriff's sale.]


Doe ex diem  Anthill [sic] & others v Hodges

Ejectment for premises in Kent Street and King Street Sydney respectively.  Plea not guilty.  At the trial before Forbes CJ and two assessors in March last it appeared that there were four demises laid in the declaration, but that on which the case proceeded was on the demise ofStephen Macdonald & James Scott as trustees of Hugh Macdonald, and they declared upon a prior possession of the devisor to support the Ejectment.  The facts of the case were these:-  In 1816 or 1817 Hugh Macdonald or his wife purchased the locus in question from one Scuttick.  After Macdonald had possession either by himself or his wife he went to India leaving his wife in this Colony.  During his absence the wife built a house on part of the premises.  After being absent for two years he returned, and in 1819 he died, and by his will, executed to pass freehold property, he devised [p. 7] all his real estate to Mr T. Campbell Esq & Major Antill as trustees in trust for the benefit of the persons named therein, & appointed them his executors.  They renounced the execution of the will and trust, and in 1820 the widow being still in possession obtained letters of administration with the will annexed.  She afterwards married oneBacon, and then she & Bacon, exchanged the land in question with one Hughes for a soldier's grant in George Street.  Hughes disposed of the land to one Spencer & he becoming indebted to one Campbell, the land was then in execution, & the deft became the purchaser at the Sheriffs sale, & has ever since held the property which is the subject of the ejectment.  Some years after the death of Hugh Macdonald an application was made to this Court to appoint other Trustees of his will in the room of J. T. Campbell & Antill, but before that proceeding was perfected Campbell died.  There was then another similar proceeding & [p. 8] in the result was a decree of the Court appointing fresh trustees, & directions that the estate should be conveyed to Stephen Macdonald & Lasnes Scott in the place of Antill & Campbell.  There had never been any grant from the Crown of the land in question to Scuttick the original vendor, nor had either set of Trustees nor the devisee under the will of Hugh Macdonald ever been in possession.  The action was founded solely upon the bare possession of Hugh Macdonald from 1817 to 1819 when he died seised and in possession.  The plf had a verdict, subject to the opinion of the Court, whether the lessor of the Plf had thereon such a priority of possession as was sufficient to sustain a verdict against the Deft in the absence of all privity between them.

S. Stephen having been heard in support of the verdict, and Wentworth contra, & the Court having taken time to consider:

[p. 9]Forbes CJ now delivered the judgment of the whole Court:-

This case has been diffused over a large surface of ground, but it is resolved into a very plain question, namely, whether a plf in ejectment, who has been out of possession for 14 or 15 years, may bring ejectment upon the strength of a prior possession of 3 or 4 years without any other title.  I lay out of this case, the circumstance of the devisor dying possessed of the land.  That fact, carried, no doubt, a presumption of his being seised in fee, and vested the estate prima facie in his devisees, but that presumption, like the presumptions of fact is liable to be rebutted by actual proof of the nature of the possession, which the devisor had, and from the proofs it appears that the fee is still in the Crown; that the devisor Hugh McDonald in or about the year 1817 [p. 10] obtained possession of the land from one Scuttick, and that McDonald died in possession in the year 1819 and devised the land to trustees who renounced the trust, and never took actual possession under the will.  From which time to the present, the land has been in the hands of divers persons, all holding under adverse titles.  First the widow ofMcDonald next her second husband Matthew Bacon who exchanged it for other lands withJohn Hughes who again exchanged it with Spencer, and finally the land was sold under an execution against Spencer and purchased by the present deft at a sheriffs sale.  It is a settled rule of law, in bringing ejectment, that the plf must prevail upon the strength of his own title & cannot rely on the weakness of his adversary's title, because, in law, the legal estate is somewhere & whoever may be entitled to it will have a right to recover the possession of the estate, and also the intermediate profits, [p. 11] if there have been any, from the wrongful possessor.  A better title therefore will not do, where such title is not, in itself, a good legal title.  Now the title to the land is still in the Crown, and although this court has considered possession with the permission, express or implied of the Crown, a good prima facie title, so as to sustain trespass against a wrongdoer (4 B.H. 591) yet it adheres to the laws of England as they relate to title to land, and applies those laws to all Cases arising in the Colony, in exactly the same way, which it is considered they would be applied if such cases had arisen in England.  Applying the principle of law, as laid down by the Kings Bench in Martin Strachan (5 T.R. 107) and recognized as law 4 Burr. 2487. that the plf must prove title - upon what, in this case, does the lessor of the plf's title rest?  It rests on a mere possession of the devisor of two, or at the utmost three years before his death in 1819 since which time the devisees under [p. 12] his will have never been in possession, but there has been a continued dispossession by four several persons, first by the widow, next by Bacon, then by Hughes, then Spencer and lastly by the present deft under an execution and sale at law.  As against the trustees under McDonald's will, these several persons held under adverse titles, and whatever right of action the devisees under the will of McDonald might have had against any immediate trespassers upon the possession, to which they had prima facie title, therefore none against the present deft who has acquired possession of the estate in a peaceable manner.  There is no privity of estate in trespass.  It is not like a successive holding under the devisor.  The deft and those under whom he claims, had an adverse possession ab initio.  But it is urged that priority of possession is sufficient to maintain Ejectment.  No doubt it is between the immediate parties.  Where [p. 13] one is in peaceable possession, and another comes and turns him out, ejectment lies to recover the land upon the strength of prior possession, without further inquiry into the legal title.  But I apprehend the cases which have been cited in support of this doctrine, Allen v Rivington (2 Saund 111) andHughes v Dyball (1 Malk & Moody) will be found tend to go further than a question of mere priority of possession between the immediate parties to the ouster.  Entertaining this view of the law of the case, the Court is of opinion, that a nonsuit should be entered.

Judgment for the Deft.



[1 ] See also Australian, 27 March 1835.

On ejectment, see also Ryan v. Young, 1831, Dowling, Select Cases, Archives Office of N.S.W., 2/3466, p. 86, which begins with the following summary: ``Where pending a treaty for purchasing land Defendant had been put into possession but the treaty afterwards went off,  Held that Ejectment could not be maintained against him without notice to quit."

[ 2] See also Sydney Herald, 2 April 1835: ``Doe d Hodges v. Antil. - In this case Mr. Wentworth moved for a new trial.  The Court would reserve its judgment until a future opportunity, the case being one of the utmost importance in this Colony, where transfers of property had been heretofore so loosely effected."

Published by the Division of Law, Macquarie University