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

Jones v. Moore [1836] NSWSupC 18

Burwood estate - covenant - land law, title - succession - Court of Civil Jurisdiction - Crossley, George - conveyancing, informal - reception of English law, evidence - ejectment

Supreme Court of New South Wales

 In banco, 12 March 1836

Source: Sydney Herald, 17 March 1836[1 ]

Saturday, March 12. - Jones and another v. Moore. - This was an action on a covenant, to which the defendant pleaded non est factum, and several special pleas.

At the trial, in the present term, before Mr. Justice Dowling and two Assessors, it appeared that during the administration of the Government of this Colony by General Macquarie, a man named Thomas Rowley, who had been a soldier in the 102nd regiment, died seized of certain lands lying between Sydney and Liverpool, since known as the ``Burwood Estate;" which, by his last will, he devised to certain persons, and for certain purposes, named therein.  The executors nominated by the testator were the late Colonel Johnson and Dr. Harris; but those gentlemen having, shortly after the death of Rowley, proceeded to England, the defendant applied, by petition, to Governor Macquarie, in behalf of the children and devisees of the deceased, and His Excellency was pleased to appoint the petitioner guardian of the infants.  Sometime after this the defendant, supposing it would be for the interest of the devisees under the will, applied to the then Civil Court of the Colony, and obtained an order authorising him to sell the land in question, which was accordingly done, and the late Alexander Riley, Esq., became the purchaser; the defendant covenanting to secure him from all future claim on the part of any legal representative of the deceased, by a deed conveying a title to him, his heirs, or assigns for ever.  The property remained in the possession of Riley up to the time of his death, and since that came into the hands of his representatives, Richard Jones and James Norton, Esquires, the plaintiffs in this action; but in the year 1832, the devisees under Rowley's will, brought an action of ejectment against the tenant in possession of the land in question, and obtained a verdict on the ground that the Civil Court, as constituted in the time of Governor Macquarie, had no power to authorise the sale.  The present action was, therefore, brought by the plaintiffs, as trustees of Alexander Riley, to recover from the defendant the value of the land in fee, and also the costs occurred in defending the action of ejectment prosecuted by the devisees under, Rowley's will.  Evidence of the value of the land, by the auctioneer who sold part of it not many months since, was offered to the Court, but rejected by the learned Judge, who ruled that however a question of the value in fee might arise in an action by the heir at law, the present plaintiffs could only recover the mean proceeds; and it was in evidence that the testator received the benefit from the land during his life-time.  In the course of the trial an attempt was made to show the probability that the words of the deed, making over the land in question to Riley and his heirs for ever, were collusively introduced, at his instance, by the party who had that instrument - a man named Crossley, at that time allowed to practice in the Court of the Colony, and who was described by several witnesses as a very worthless person - but there was no evidence whatever to support such a presumption.  Several objections, in point of law, were taken by the defendant's counsel, who also contended that the case was one of considerable hardship on his client, inasmuch as he never could have intended to assign away land which he did not possess, and evidently meant to convey no more than an estate from year to year, under the authority of the Court, and as guardian of Rowley's children.  The legal objections were reserved by the Court, and the case put to the  Assessors, who returned a verdict for the plaintiffs, damages £810 13s. 11d.

Since the trial of the cause, two notices of motion were served on the learned Judge who presided; one on the part of the plaintiffs for a new trial, on the ground that certain evidence had been improperly rejected, and that the verdict was contrary to evidence, inasmuch as a greater amount of damages than that awarded had been proved, and the plaintiff's claim to a larger sum allowed by the Judge himself in his charge to the Assessors at the trial.  The notice of motion, on the part of the defendants, was for a nonsuit, upon the points reserved.

Some discussion arose between counsel as to the most convenient course of proceeding - whether it would be by giving priority of hearing to the motion on the part of the plaintiffs, or to that on the part of the defendant.

The Court decided that the most proper course to pursue would be to take the motion for a non-suit first; because if that succeeded, there would be an end of the case - there would be no action, and therefore no question of new trial in the matter.

The Solicitor General (with whom was Mr. Foster and Mr. Carter) then contended at considerable length, on the part of the defendant, that, notwithstanding the introduction of the words ``to the said Alexander Riley, his heirs and assigns, for ever," contained in the deed - words which the defendant was led to believe were nothing more than words of course - the deed itself could not be held to convey any more than a life estate, or an estate at will.  If it were said to convey a real estate in the land in question, it must be viewed as one of two things - either as a feofment, or a bargain and sale.  Now, to constitute a feofment, the party claiming must prove delivery of seizen; and, as he had objected at the time of trial, when this point was reserved, there had been no evidence adduced of this common law form having been gone through.  It was not, therefore, a feofment.  Neither, he contended, was it a bargain and sale.  If parties chose to dispense with the common law form in matters of this kind, there was another course provided by statute, of which they might avail themselves - by deed of bargain and sale.  But in the latter case there must be an enrolment, under the statute of enrolments.  Then if the estate conveyed by the defendant was not a feofment - was not a bargain and sale - he asked the Court whether it could hold the deed declared upon by the plaintiffs, as conveying any more than what the defendant could convey, namely, an estate from year to year, or at will?  The defendant never was possessed of the land in question; and how then could he intend to convey a title which was not in himself?  Another objection upon which he relied was, that the deed, however it might be affected by the first objection, only guaranteed the purchaser from disturbance to himself, his heirs, or assigns; but the evidence went to show that it was a tenant who had been disturbed by the proceeding in ejectment; and the learned Counsel referred to authorities to show that a distinction has always been taken between the word ``tenant" and the word ``assign."

Mr. Justice Burton observed that he did not hold with that argument.  A tenant was an ``assign," thought not an ``assignee."  ``And," said the learned Judge, ``if you disturb my tenant you disturb me."

The Solicitor General said he had, as yet, confined himself to what he considered comparatively weak points in the series of objections which he would feel it his duty to take to the verdict in this case.  He had to contend, thirdly, that there had been no proof that the plaintiffs were disturbed by parties lawfully claiming under Rowley's will - against whose claim the defendant was alleged to have covenanted with the defendant was alleged to have covenanted with the testator of the plaintiffs.  There had been, it was true, the secondary evidence of one of the Attornies of the Court, that certain parties - lessors of the plaintiffs in ejectment, and claiming under the will of the testator, Rowley, had been put in possession of the land in question, by virtue of a writ issued in pursuance of a judgment obtained; but whether those parties really were or were not the devisees of Rowley, lawfully claiming under his will, there had been no proof whatever in this case.  The will itself ought to have been produced, as being the best evidence in the case; it might have been shewn that the parties who obtained judgment in ejectment - who evicted the plaintiffs - were not lawful claimants under Rowley's will.  There was no proof whatever that the divisees under Rowley's will and the parties in ejectment were the same.  The learned Counsel was proceeding with other objections, when

The Court suggested to the plaintiffs' Counsel, to reply to the last objection taken on the other side, as the argument might thereby be materially shortened.

Mr. Stephen (with whom was Mr. Kerr) contended that the judgment in ejectment was prima facie evidence that the parties obtaining it were lawful claimants, and cast upon the other side the duty of negativing that presumption.

Their Honors consulted for a considerable length of time, after which

The Chief Justice said as it seemed quite impossible to get over the last objection, there was no use in deliberating any longer upon it.  However the rules of practice might be changed, or simplified in this Court, by virtue of the authority vested in the Judges, the rules of evidence must be the same here as those acted upon in Westminster Hall - the Judges had no power to alter them.  Now, the Court was opinion that there was not in this case a sufficient constat of evidence to connect the devisees under the will of the testator Rowley, with the parties who obtained judgment in ejectment against the tenant in possession of the disputed property.  In fact, the proceedings in ejectment formed no part of the present case - the will of the testator might have been produced in evidence, and that would have been the best proof as to whether the parties in ejectment were or were not lawful claimants under it.  The Court was of opinion, therefore, that there had been a material failure of evidence in the case, and that a nonsuit should be entered; but it would, at the same time, suggest that perhaps the best, and certainly the least expensive way, would be for the defendant to allow the plaintiffs to go to trial again upon the same pleadings - they, of course, paying the costs of this day's proceedings.

Counsel for the defendant stated that they would prefer letting the case take its course; they did not like the pleadings, and preferred beginning over again.

The plaintiffs were accordingly non-suited.

Counsel for the plaintiffs, Mr. Stephen and Mr. Kerr; for the defendant, the Solicitor General, Mr. Foster, and Mr. Carter.



[ 1] See also Sydney Herald, 14 March 1836: ``Jones and another v. Moore. - In this case, which was one of considerable importance, involving a right of property in certain lands on the Liverpool Road, called the Burwood Estate, a verdict for the plaintiffs was returned at the trial; but upon the application of Counsel, the Court this day directed a non-suit to be entered upon a point reserved by the learned Judge who tried the cause.  The arguments lasted during the greater part of the day, so that we are under the necessity of carrying over the report to our next."  See also Sydney Gazette, 15 March 1836.

On the complications following the death of Thomas Rowley, see also Jones v. Moore, 1837.

Published by the Division of Law, Macquarie University