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

Doe dem. Dowdell v. Roe [1840] NSWSupC 29

land title, ejectment, Bringelly

Supreme Court of New South Wales

Willis J., 22 June 1840

Source: Australian, 27 June 1840

            Doe dem, Dowell v. Roe. - This was an action of ejectment brought to recover possession of 40 acres of land, situate in the district of Bringelly. The lessor of the plaintiff, is the son and heir of Michael Dowdell, deceased about 18 years ago, who was the original grantee of the land in question, under a deed of grant executed by Governor Macquarie, on the 25th August 1812. The defendant is a gentleman named Walker, married to a daughter of the late Rev. Rowland Hassall, under whom the defendant claimed title to possession of the lands in question. The case occupied a considerable time in investigation, but the merits of it appeared to lie in a very short space. Mr. James Hassall, a son of the late Rev. Rowland Hassall, who died about twenty years ago, had known the land for the last twenty-five years, he being at at[sic] that time only thirteen years of age, and had frequently rode over it in company with his father, who had occasionally pointed out to him different parts of the boundaries, and always spoke of it as if it were his own. Mr. James Hassall was convinced that his father had purchased the land from old Dowdell, who was at that time overseer, acting under his father's orders, in charge of Captain Kent's cattle at Kissing Point, but he never saw any conveyance of the property. About three years after his father's death, he had let the land to a tenant on behalf of Mr. Walker, but it was not brought into cultivation until about five years ago, the land being very bad. His elder brother, the Rev. Thomas Hassall, was in England at the time of his father's death, but returned to the colony about a year or two after that event. This gentleman had, it was said, been subpoenaed to give evidence on behalf of the lessor of the plaintiff, as being more likely, in consequence of his being ten years older than his brother James, to have a more perfect knowledge of the nature of his father's title to the land in dispute, and also to give evidence as to a conversation between the deceased Dowdell's eldest daughter, and himself respecting the land, soon after his return from England, but the witness did not answer when called upon his subpoena. His Honor regretted that he was not in attendance, as the character of his respectable family was somewhat involved in the question before the Court. It was not proved, however, that the reverend gentleman had been duly served with a subpoena, and it was suggested that he was not absent in his clerical duties at Port Stephens. The deed of grant was put in and read, and it appeared that there was a proviso contained in it, obligatory on the grantee among other things to cultivate twelve acres of the land in five years from the date of the grant, otherwise the deed to become null and void. Counsel for the defendant applied for a nonsuit on this ground, as the evidence for the plaintiff clearly shewed that the land was not in cultivation at all until the year 1833, and that therefore the deed itself under which the lessor of the plaintiff claimed title, was clearly void - secondly, that the party under whom the defendant claimed title being proved to have been in possession for more than twenty years, the deceased Dowdell not having been proved to have been ever in possession at all, the case came under the statute of limitations, and the lessor of the plaintiff's right of action was clearly gone. His Honor was the defendant's counsel upon both the points, and was inclined to order a nonsuit, but the other side pressing for a verdict, the Assessors under the learned Judge's direction, returned a verdict for the defendant. Counsel for the plaintiff, Mr. Windeyer; for the defendant, Mr. Foster.

Published by the Division of Law, Macquarie University