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

Doe dem. Terry v. Robinson [1838] NSWSupC 92

land law, title, proof of - land law, Crown grant, cancellation of - ejectment - damages, nominal - Terry, Samuel, estate of

Supreme Court of New South Wales

Dowling C.J., 9 October 1838

Source: Australian, 11 October 1838[ 1]

TUESDAY. - Before His Honor the Chief Justice, and Messrs Sempill and Kinnear Assessors.

Doe on the demise of Terry, versus Robinson. - This was an action of ejectment brought by the executors and heir at law to the late Samuel Terry, to recover possession of four acres of land from Sarah Robinson.

A grant, under the seal, from Governor Ralph Darling, conveying one hundred acres of land, in the Parish of Concord, County of Cumberland, to Samuel Terry, his heirs, &c. bearing date 2nd August, 1831, was put in evidence.

Mr R. Want was put into the box to prove the identity of the land, but his evidence was objected to, and Captain Wilson proved, that he had surveyed the ground, examined the official charts, and that the four acres in question were included in the grant of 100 acres from Governor Darling to Mr Samuel Terry.

The conveyance of the property by will to Edward Terry, heir at law, and the demand of possession, were admitted.

This was the plaintiff's case.

The Attorney General, for the defence, contended, that the grant from Governor Darling to Samuel Terry, under which the plaintiffs now claimed, was void by a prior grant of the same land by Governor King to Thomas Rowley, from whom the defendant held possession.  It would be unnecessary for him to enter into all the minutiƦ of the transfers, because if he proved the title of any party it was sufficient to non-suit the plaintiff, and he would shorten the case as much as possible.

A grant of 190 acres of land, under seal, from Governor King to Thomas Rowley, dated March, 1802, was put in; also a grant of 750 acres by Governor King to Thomas Rowley, in August, 1803.

The Attorney General explained, that the first of these grants for 190 acres, was a grant from the crown, and subsequently, Mr Rowley becoming possessed of other lands by purchase in the neighbourhood of his grant, he applied to the Government to have the whole of his titles consolidated in one grant, which was acceded to by the Governor, and the grant of August, 1803, embodied the lands so acquired.  It was thus evident, that Governor Darling had not the power to make the grant to Mr Samuel Terry in 1831, and it had, most probably arisen from ignorance of the fact, or by misrepresentation on the part of the plaintiff.  There was no proof that the land had ever been in the possession of the plaintiff.

Mr James Raymond, Clerk of the Records in the Colonial Secretary's Office deposed, that he had brought up the two grants by Governor King to Mr Thomas Rowley, from the Colonial Secretary's Office, where they were deposited.  He also produced the register of the grants for the years 1802 and 1803, in which these grants appeared to be registered.  The former grant for 190 acres, appeared by the register to have emerged into the second grant for 750 acres, and there was a cross over the registry, but it did not appear to be cancelled in the usual way, which was by having the word ``cancelled" with the reason of the cancelling written on the registry, as appeared by other grants in the same book which had been cancelled.

In his cross examination by Mr Foster, he said, that there were any old grants lying in the Colonial Office which had been handed over by Major Goulburn to Mr McLeay, but he did not call them cancelled grants.  There were cancelled grants in the office, which were cancelled when new grants were made out; he could not say how new grants to Thomas Rowley came into the Colonial Secretary's Office, but supposed they must have been issued by their being registered.  The consolidated deed not appear to have been cancelled.

Mr Edward Knapp, Surveyor, deposed, that he had measured and surveyed the land in question; that the 100 acres granted by Governor Darling to Mr Terry, as also the 190 acres granted to Mr Thomas Rowley, by Governor King, were comprised in the grant of 750 acres granted to Mr Rowley by Governor King in 1803.

This was the defence.

Mr Foster contended that the grants from Governor King to Mr Rowley could not be received as evidence, as they came from the Colonial Office, and not from the grantee, which was presumptive evidence that they had been surrendered and cancelled, probably in consequence of compensation having been given for them.  He contended that the original grant of 190 acres was cancelled by the consolidated grant of 750 acres, and that the consolidated grant was not a perfect grant wanting the seal.

The Chief Justice put the case to the assessors.  The plaintiff had started by lodging a good legal title to the land which had not been impeached, and it was therefore to be considered prima facie title to the land.  The defendant came in with a prior title of grant from a former Governor - but these grants were not in possession of the defendant, but in possession of the Crown, which was strong presumptive evidence that they had been cancelled.  However, notwithstanding that the deeds came from the Colonial Office instead of from the grantee, yet, if the deeds had come before the in a perfect state, he should have held them as good against any claim of the Government; notwithstanding that they had never been issued to the grantee.  In this case, however, they came before the Court under circumstances from which the assessors must presume that they had been surrendered for compensation and cancelled; and there was a still further presumption that they had been cancelled, by Governor Darling having issued a grant of this land to Mr Terry, from which the Assessors were bound to presume that they had been duly surrendered to the Crown.

The Assessors found for the plaintiff - Damages, one halfpenny.

 

Notes

[ 1]See also Sydney Gazette, 11 October 1838, and see its issue of 13 October (Doe dem. Terry v. McCulloch, and Doe dem. Terry v. Rogers).  See also Dowling, Proceedings of the Supreme Court, Vol. 154, State Records of New South Wales, 2/3339, p. 36.

On the proposals for a new system of land grants, see Gipps to Glenelg, 2 June 1838, Historical Records of Australia, Series 1, Vol. 19, 430-432.

Published by the Division of Law, Macquarie University