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

Doe dem. Green v. Solomon [1838] NSWSupC 57

conveyancing - land law, title - specific performance - infancy

Supreme Court of New South Wales

Dowling C.J., 18 June 1838

Source: Sydney Herald, 21 June, 1838[ 1]

Doe dem Green v. Solomon - This was an action of ejectment brought to recover possession of two allotments of land in Erskine-street.  The plaintiff proved a deed of grant from the Crown to a young man named Piper, and a conveyance from Piper to Green.  For the defence it was proved that some time prior to the conveyance to Green, the land was purchased at auction for £400, by the defendants who paid a deposit of £100, and subsequently advanced another is £100, but as Piper was not of age the payment of the balance was deferred until he became of age and could execute a conveyance.  When Piper became of age an appointment was made with Messrs. Carr and Rogers, Solomon's solicitors, by Mr. Lindo, Piper's solicitor, who stated that he had got the deeds executed and was authorised to receive the balance.  The interview took place after bank hours, and Messrs Carr and Rogers tendered their cheques for the balance, which Mr. Lindo refused to take, and as cash was not procurable at that hour Lindo took away the deeds with him, and the land was afterwards conveyed to Green.  Solomon was in possession of the premises and filed a bill on the equity side of the Court praying a specific performance of the agreement, and Green commenced his action of ejectment.  His Honor held that the deed from Piper to Solomons could only be looked upon as an escrol, the money not having been paid, and that consequently the verdict must be for the plaintiff; in the Equity side of the Court His Honor said that all the circumstances of the case can be taken into consideration and complete justice be done.  Verdict for the plaintiff.

Counsel for the plaintiff Messrs Foster and Windeyer; for the defendant, Mr a'Beckett.

 

Notes

[ 1]See also Dowling, Proceedings of the Supreme Court, Vol. 151, State Records of New South Wales, 2/3336, p. 1.

On specific performance, see also Sydney Gazette, 19 June 1838; Sydney Herald, 11 June 1838 (Walker v. Hughes).

Published by the Division of Law, Macquarie University