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

Kennedy v. Massagori [1842] NSWSupC 19

specific performance - Illawarra - insolvency - conveyancing - imprisonment for debt

Supreme Court of New South Wales

Stephen J., 20 January 1842

Source: Sydney Herald, 21 January 1842

The insolvent in this case was William Henry Massagori who was in execution for the sum of £78 17s., being the cost of a Chancery suit, in which he had been cast. It appeared the insolvent had been previously remanded by his Honor the Chief Justice, until he should execute a conveyance of some land originally belonging to him at Five Islands in the district of Illawarra, which had been given to him during the government of General Darling, on the insolvent's attaining the age of twenty-one years; but soon after he obtained a promise of it, he, being in a drunken fit, sold the same to a man named Kennedy, on the 7th May, 1831, for the sum of £12 10s., being at the rate of 5s. per acre, at the same time binding himself by a memorandum of sale to execute a conveyance to Kennedy whenever he should require it. This memorandum was signed by the insolvent and the plaintiff, and their execution of the same witnessed by Mr. J. T. Hughes, Thomas McGarvin, and James Tomlinson; at the end of the memorandum of sale there was also a receipt signed by the insolvent, and acknowledging the receipt of £12 10s., as the price of the land. It appeared that soon after the sale, the insolvent's father, since dead, endeavoured to get the sale cancelled; after which nothing more was done until the year 1839, when the insolvent applied for a deed of grant in his own name for the said land, when the plaintiff lodged a caveat against his receiving the same; but, in consequence of some of the papers having been mislaid by the plaintiff's attorney, he was unable to make out his rights before the commissioners, who therefore issued the deed of grant to the insolvent, who again sold the land in October, 1839, for £80 to a person named Marsh; and, having conveyed to Marsh on the 18th October, left the two purchasers to settle as they best could. But excusing himself from giving a conveyance to Kennedy, on the ground that he had only received £6 5s. of the purchase money, notwithstanding he had, as already stated, signed a receipt for the whole amount on the 19th October, 1839; the present plaintiff filed a bill in Equity against the insolvent, in order to compel him to fulfil his original agreement, when judgment was given against the defendant.

The insolvent having on his examination, yesterday, admitted the facts in the above outline of the case, Mr. Want, who appeared for the plaintiff, applied to his Honor to punish the insolvent for having subjected his client to unnecessary expense, by resisting the proceedings in the Equity Court .

His Honor did not think that his refusing to convey, being a negative act, could be so construed as to bring him under the meaning of the clause referred to; but as it was evident that the insolvent had acted in a highly improper manner throughout the case, and had endeavoured to impose on the Court by asserting that he had only received half of the price from Kennedy, while there was a receipt to prove that he had got the whole of it, the Court would dismiss the petition, and informed the insolvent that he ought to be thankful that he was not committed for perjury. His Honor also expressed a hope that the circumstances in which the insolvent now found himself placed would be a warning to him as to how he ever took drink again, it having been according to his own showing, the source and cause of all his misery.

The insolvent then left the box, in custody of the gaoler, and there being no other business before the Court it was adjourned.

Published by the Division of Law, Macquarie University