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

Mackaness qui tam v Wills and others [1837] NSWSupC 73

land law, title - reception of English law, land law

Supreme Court of New South Wales

Dowling A.C.J., 18 October 1837

Source: Sydney Herald, 26 October 1837[ 1]


Wednesday, October 18, 1837 - Before the Acting Chief Justice and a Special Jury. ...

Mackaness qui tam v. Thomas Wills and others. - Mr. Windeyer having opened the pleadings by stating that this was an action brought by John Mackaness, Esq., against Thomas Wills, Horatio Wills, George Terry Howe, Edward Lee, Sarah Lee, James Harrison, and Jane Harrison, upon a declaration containing eight counts for the sum of £10 000 to which the defendants had pleaded nil debts and the general issue.

The Attorney-General said, the Statute of Henry the Eighth, under which this action was brought could not be too greatly lauded, as it tended to prevent litigation and preserve concord amongst his Majesty's subjects.  The recital of the Act showed that mischief was intended to be put down.  [Here the Attorney-General quoted the second section of the Act, upon which he stated the declaration was framed.]  The object of the Statute was to prevent litigations respecting Titles to Land.[ 2]

No person out of possession, who has a pretended right, can give any pretended title, except such person, their ancestors, or he or they by whom they claim, shall have been in possession for one year before.  This case, it will be seen, comes exactly within the meaning of these provisions.  There is no part of the King's dominions where this Statute is of so much consequence as in New South Wales.  Any person who is seeking a chance may fight a poor man to his oppression, if backed by money - if he buy a fictitious or pretended right.  In that point of view the Act is more necessary in this Colony than in England, where the laws are better defined than here.  The last action tried (Wemyss, Mortgager v. Mackaness, Mortgagee) would illustrate this.[3 ]

The particular lands in question were purchased by Mr. Wemyss in 1821, and were formerly held by Mr. George Howe, who died before 1821, in embarrassed circumstances.  He made a will by which he appointed Joseph Underwood and Michael Robinson trustees.  The will first directed his debts to be paid and that the property afterwards should go to his family.  The trustees sold this property, which produced £165.  Mr. Wemyss became possessed of it in 1821, and continued in possession until 1824.  In September, 1824, he sold it to Mr. Mackaness for £300 and in a few weeks afterwards a further portion, on which buildings were erected, which the late Mr. Oxley was to value.  Mr. Mackaness did take such further portion at this valuation.  Mr. Norton being Mr. Wemyss' Solicitor at this time, Mr. Mackaness did not look into this title, he assumed that the title was good, he did not know there were reservations in the will of Howe.

The first Deed was prepared by Mr. Norton in July, 1827, and in 1830 Mr. Stephen prepared a mortgage on the land and buildings.  Mr. Wemyss soon after left the Colony, appointing Mr. Goodsir his attorney.  A portion of the land was sold in January, 1832, but only part of the purchase money is paid.

Mr. Wemyss never communicated with Mr. Mackaness respecting this Will.  He (Mr. Mackaness) never heard of it until last November, and then from Mr. Francis Stephen, who contemplated purchasing the claims of Howe, in breach of this Statute.  To avoid this, he came to Mr. Mackaness and proposed to give at the rate of £1,500 per acre, for ten years, in all to £15,000.  Mr. Mackaness acquiesced, and the business lay over; he heard no more until he was informed Mr. Stephen had purchased of the Howe family.

Mr. Wemyss came into possession in 1821 - Mr. Mackaness in 1824, and so continues - the Howe family never having been in possession.  This is, therefore, a very strong case - Mr. F. Stephen being an attorney who could get law cheap, and oppress Mr. Mackaness - supposing Mr. Mackaness did not know this was contrary to law.  The action brought against Mr. Stephen, as the buyer of the pretended title of the Howe family, has ceased in consequence of the death of Mr. Stephen.

The Attorney-General, after entering into the detail of various negociations which took place at the latter end of the year, 1836, relative to a proposed sale by Mr. Mackaness of the land in question, in the course of which, during the month of November, an agreement was prepared for Mr. Mackaness' signature, who being disgusted would not sign it; and the sale did not take place, proceeded to quote from the books several cases in illustration, and concluded his arguments by stating that, even if the children of Howe were not entirely bound by law and equity - if the debts referred to in the will were entirely paid without recourse being had to this property - still as they were out of possession, they are subject to the penalties of this Statute.  Parties who conveyed land must know whether they were in possession or not, and the verdict of the jury in this case would have an effect on the whole community.

Mr. Bemi, Surveyor, proved the boundaries of the lands in question, that they are situate in the parish of Alexandria, that Mr. Mackaness was and is, in possession, and estimated their value to be at least £800 per acre.

Mr. F. W. Unwin, Solicitor, under the direction of the Court, (which reserved the objections of the defendant's counsel in this respect) produced the contract or agreement for the sale of land, dated 12th August, 1835, also the deed or conveyance, prepared in pursuance thereof, dated 25th November, 1836 - Wills and others to F. Stephen - which were in his hands professionally as the attorney of the late Mr. Stephen, considered the value of the land, after deducting the portions sold, to be about £3,000, being the same land which Mr. Mackaness is in possession of.  The consideration money was paid on the completion of the conveyance.

Messrs. Bradley and Elyard, of the Supreme Court Office, proved the return and issue of the summons in this action.

The subscribing witness to the deed or conveyance refusing to attend on the short service of a subpoena, (the deed never having been registered) to prove the execution of this instrument by the defendants, the signatures of Messrs. Thomas Wills, Horatio Wills, Lee, Howe, and Harrison, and of Mrs. Jane Harrison, to the agreement or contract of sale were proved by various witnesses attending the Court professionally; but the handwriting of Mrs. Sarah Lee (one of the defendants) not being proved, the Court in this staged of the proceedings directed a non-suit.

Counsel for the plaintiff, the Attorney-General, Messrs. Kerr, Foster and Windeyer - attorneys Messrs Chambers, Brenan and Tharlow; for the defendants, Messrs. Stephen, a'Beckett and Raymond - attorney, Mr. Nichols.




[1 ] See also Australian, 20 October 1837 (commenting that ``This is the first action of the kind ever tried in the Colony; and if it should come before the Court again, will give rise to considerable discussion, as various matters connected with the application of Penal Statutes in new Colonies without being specially adopted, will come under the review of the Court."); Sydney Gazette, 24 October 1837; Dowling, Proceedings of the Supreme Court, Vol. 143, State Records of New South Wales, 2/3328, p. 46.

[2 ] The Australian, 20 October 1837 named the Act as 32 Henry VIII c. 9, commonly called the ``bill of Bracery and buying of Titles".

[3 ] This refers to the following, which immediately preceded this report of Mackaness v. Wills in the Sydney Herald of 26 October 1837:

``Deo dem Wemyss v. Mackaness. - This was an action of ejectment, brought by the plaintiff as mortgagee to recover possession of some land on the Surry Hills.  The mortgage deed was proved by the arresting witness, and it was proved that default had been made in the payment.  A number of technical objections were made which were over-ruled by the Judge.  Verdict for the plaintiff.

``Counsel for the plaintiff, Messrs. Foster and Manning; for the defendant, Messrs. Stephen and Kerr."

See also Dowling, Proceedings of the Supreme Court, Vol. 143, State Records of New South Wales, 2/3328, p. 34.



Published by the Division of Law, Macquarie University