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

Doe dem. Devine v. Barrett [1847] NSWSupC 19

ejectment, leasehold, Statute of Limitations

Supreme Court of New South Wales

6 December 1847

Source: Sydney Morning Herald, 9 December 1847, in Supreme Court Collection, Vol. 2, pp 34-36


This was an action of ejectment tried before Mr. Justice Dickinson. The action was brought in August, 1846; and the demise from Devine was laid on the 1st January 1826. The term of demise was forty years; and the ouster was stated to have been on the 1st September 1840. It was proved at the trial, that Devine was in possession of the land in 1817, or thereabouts; and that he continued in possession up to the time of his death, which happened in the year 1829. There was no other proof of possession in Devine, or any one claiming under him, since that date. The plaintiff offered in evidence, however, a grant to Devine from the Crown, dated in October 1799--- but this was rejected by His Honor, as being void for uncertainty in the description; no intelligible or definable boundaries being therein mentioned, with which it would have been possible to identify the land in question. The Judge told the Jury, that the only question for them was, the title of Devine at the date of the demise; and that, if they believed him to have been in possession at that time, so stated by the witnesses, they should find for the plaintiff--- which the Jury did accordingly.

In July last, Mr. Lowe moved for a new trial, on the ground of misdirection on both these points--- or failing that, for an arrest of judgment; on the ground that, as the demise was laid above twenty years before commencement of the action, there was at that date no right of entry. He further asked for a stay of proceedings on the ground that, as it was proved the lessor of the plaintiff was dead long before action brought, there was a fraud perpetrated on the defendant, and that some person was suing in Devine's name, which was an illegal act. In accordance with the practice of this Court, by which a motion in arrest of judgment is disposed of, before deciding on sending down a case for a New Trial, we heard the arguments on all these questions. Mr. Lowe contended that the right of entry was inseparably connected with the demise; and that the true question was, the existence of that right in the lessor of the plaintiff; that title in him, not in the fictitious Doe, was to be shown--- and that , at the time of action brought; but that, as his right was only alleged as existing in January 1826, the Statute of Limitations, 3 and 4 W. IV. c. 27. s. 2, was a bar to the action. The defendant, no doubt, had confessed ouster, but that itself was a mere form. The date of ouster, at all events, was not admitted; so that the fictitious entry of John Doe would not get over the difficulty. As to possession, Mr. Lowe maintained that title alone being in issue in Ejectment, and the plaintiff having to recover on the strength of his own, not on the weakness of that of his adversary, bare possession (for any period less than twenty years) could not in any case be sufficient evidence; except as against one who clearly entered on that possession, in point of fact, and so was palpably an intruder. He submitted, that whatever may be required to prove title under the plea of liberum tenementum , must equally be necessary to prove it here; that, if Doe was by a fiction ousted, and so previously in possession, it was but a fiction, whereas the defendant's possession was actual. If, therefore, possession n was evidence of title, it would equally be available for the latter; and so, one would counteract and defeat the other. And the same would be the result, as between the defendant and his real adversary, with respect to mere priority of possession. For title must be equally inferred, from the possession n of each party. But, at all events, said the learned counsel, possession in the plaintiff or his lessor could only be evidence, prima facie , in the absence of any thing appearing to the contrary. Here, however, the plaintiff's own case rebutted any inference of title, which possession might otherwise have shown. For it was plain, that he relied in point of fact, for his title, on a Grant from the Crown. But, as this happened to be void, it was pretty clear that Devine had really no title. The Judge, however, directed the Jury to find on possession only; without calling their attention to the opposing inference, presented by the plaintiff's reliance on an invalid grant. Lastly, as to the necessity of title at the commencement of the action, Mr Lowe suggested several possible cases, to show the absurd consequence, as well as the injustice, of the contrary doctrine. He broadly contended, however, not merely that a defendant in ejectment could defeat the action brought, adversely to the plaintiff, or the title of those using the latter's name, (as for instance, by deducing title from the lessor of the plaintiff, since the time of the demise laid,) but that the party or parties suing can only maintain the action, in any case, by making out a title at the time of action brought, in that lessor --- so that, if he be shown to be then dead, that of itself constitutes a defence.

Mr. Foster and Mr. Fisher contended for the plaintiff, on the contrary, as follows---First, as to the motion in arrest of judgment; that the record , at all events, was free from objection--- inasmuch as Devine there appeared as the lessor only, and John Doe as the party entered on; and the ouster so alleged was within six years. That ejectment was founded on a fiction, for the substantial ends of justice; and that, to attain them, effect must be given to that fiction. That the stated demise by Devine, therefore, must be dealt with (for the purposes of the judgment, at any rate,) as real; and then, supposing a title shown to make that demise, the only material matters were the entry and consequent possession of Doe, the lessor, and his eviction--- which was admitted. That the judgment in ejectment is, actually and in fact, at the suit of the nominal plaintiff; and so is the execution. That whether the demise stated be for forty years, it's effect as to the lessee's rights must be the same. That no such demise would be determinable by the lessor's death; and, therefore, that his death cannot affect the question.--- With respect to the proof of Devine's title, the learned counsel submitted that actual possession, on receipt of the profits, was now held to be evidence of title; that is, it was evidence from which a Jury might infer title, if they thought fit. Possession could not, in the nature of things, be stronger or better evidence of title, because or when forcibly intruded on, than it was, or would be, where the adverse possession was obtained peaceably. Therefore, if it presented an inference prima facie of title in the one case, it equally furnished the same in all cases. Where libertum tenementum was pleaded, the plaintiff was in possession; and consequently his apparent right had to be overcome. But, by the nature of the proceeding, the possession of the defendant in ejectment supplied no presumption on his favour; for against it was necessarily set the previous possession of Doe---the plaintiff on the record. As to the void Grant, ---they urged that the inference of title, arising from Devine's possession, was not affected by the instrument; as there was nothing to show that it related to the land in question. The very ground, indeed, on which the grant was rejected, was--- that it did not relate to the land. The Jury were not to assume, therefore, that the instrument was intended to relate to it. The fact of possession remained just where it was before. It could not the less supply an inference of title, because the plaintiff by mistake produced a grant, which had nothing to do with the matter. As to the date at which it was necessary to show title, the defendant's counsel insisted that nothing was in question n at the trial, in ejectment, but the title of the lessor of the plaintiff, at the date of demise. If more was then in issue, said they, the admissions of the defendant would be valueless. He was required to admit the demise itself, as laid; and the entry of the nominal plaintiff under it. The title relied on, therefore, and which the defendant knew he had to meet, was a title authorising that demise; and nothing more. If injustice would be occasioned by confirming the defendant to that issue, his remedy was by application to the Court. Instances could easily be put, in which such an application would be necessary. The real title might be shut out, by laying a demise from some former owner, and so driving the defendant to dispute that title; when his defence in fact might be, a subsequent conveyance from that owner. But, in such a case, the Court would interfere; and exercise the general jurisdiction, which it possessed over the proceedings in ejectment, by striking out the demise. Admitting, however, the authority of the Court to interpose in cases of that nature, this was not the time for any special application; nor was there sufficient ground, on the merits, (as to which the plaintiff ordered an affidavit,) to support the one now made.

The cases and authorities cited on either side by the learned counsel, were the following. Doe v. Barber, 2 T.R. 749; Doe v. Cooke, 7 Bing. 346; Stokes v. Berry , 2 Salk. 421; Doe v. Parsley, 9 B. and C. 864; Brest v. Lever, 7 M. and W. 593; Fairclaim v. Shamtitle, 3 Bur. 1202;, 1294; Taylor v. Horde, 2 Sm. L.C. 389; Doe v. Bluck, 3 Camp. 447; Doe v. Leach, 9 Dowl. 877; Doe v. Stevens, 14 Law Journ. Q.B. 258; Doe v. Dyball, M. and M. 846; and S.C. 3 C. and P. 610; Roe v. Harvey, 4 Burr. 2487; Doe v. Penfold, 8 C. and P. 536; Doe v. Martin, 1 C. and Mar. 32; Browne v. Dawson, 12 A. and E. 629; Doe v. Figgins, 3 Taunt. 440; Doe v. Francis, 4 M. and W. 331; Doe v. Pilkington , 4 Burr. 2449; Aslin v. Parkin, 2 Burr. 665; Thrustout v. Grey, 2 Str. 1056; Doe d. King Wm. IV. and others v. Roe, 8 Jur. 476; Allen v. Rivington, 2 Saund. III; Doe v. Grundy, 1 B. and C. 284; Right v. Beard, 13 East, 210; ---. Arch. N.P. 340; B.N.P. 103; Adams on Eject, Ch. 6 and 11; Woodf. L. and T. Ch. 7, Bik. 3, s. 4; 2 Star. Ev. 399, 405.

We have fully considered this case; and we are of opinion that there must be a new trial, on the objection taken that the defendant's right to possession, at the time of the commencement of the action, was in issue--- and consequently, that the title of Devine, at the date of the demise, was not the sole question for the Jury. The only passage in any of the authorities cited, which goes to this point, (though we might have supposed it to be one tolerably well settled,) is in Taylor v. Horde, 2 Sm. L.C. 389; and it is simply this--- "The question then is, whether it appears upon this special verdict, that the lessor of the plaintiff might enter when he brought this ejectment ." This occurs in the judgment of the Court; but it is, of course, not a decision on the point--- as the distinction between the date of the action, and that of the demise, was not then in question, or adverted to. We have found a plain authority, however, since that argument, in the case of Doe v. Jackson, 1 B. and C. 454; in which Mr. Justice Bayley (the other Judges present concurring) says--- "There is no doubt, that an ejectment treats the tenant in possession as a wrong doer, at the time when the action is brought. If he be lawfully in possession then, it is an answer to the action, whatever may be the date of the demise laid in the declaration ; for an ejectment is altogether a fictitious remedy." In that case, the demise was laid on the 1st February 1816; but, it appearing that the defendant was in possession, at the time of the action brought, (which was about two years afterwards,) under an agreement from the lessor of the plaintiff, not determined by notice or demand, the plaintiff was non-suited--- and the Court held that the nonsuit was right.

On the question of possession, we are also of opinion that the effect of the plaintiff's reliance on the void deed, as tending to show a failure of title, should have been submitted to the Jury. It is quite clear, that possession alone will not support an ejectment. We are of opinion, however, that possession for a series of years,--- or indeed for any period, though of course its value will materially depend on the length of the time,--- is evidence from which, in the absence of anything to the contrary, a Jury may if they think fit presume title. But, in its nature, such evidence is prima facie only; and it should be looked at, therefore, in connexion with all the other circumstances. Now here the plaintiff produced a grant to Devine. For what purpose? If not to show title, and because he supposed it to have conveyed the land in dispute, it surely would not have been produced at all. But, if for that purpose, it was for the Jury to consider whether the circumstance did or did not show, notwithstanding his possession , that in fact Devine had no title. His only title may have been that grant. He probably produced it, as establishing a title. The Jury might have concluded, therefore, that he had no other; and so have given no effect to his possession--- which, in itself alone, as we have already observed, is (for the purpose of an ejectment) not title , but only evidence from which title may be presumed. There is similar evidence, however, by reason of his possession, in the defendant; and all the circumstances, therefore, tending to confirm, or rebut the presumption on either side, should be taken into account. Other things being equal, prior possession (it would seem) ought to prevail. Peace able v. Watkins, 4 Taunt. 17; Doe v. Clarke, 7. Bing. 348.

It would be idle, however, to send this case down for a second trial, if it were clear to us that the plaintiff could not succeed, by reason of any of the other objections taken. And the first question as to this is, whether the proved death of the lessor of the plaintiff, at the time of the commencement of the action, is a bar to a recovery in it. If, in all respects, the lessor of the plaintiff is to be considered the real plaintiff, there would plainly be no room for further argument. So, if the question were (as put in Taylor v. Horde) whether the lessor of the plaintiff then had a right of entry; for such a right could not, without absurdity, be attributed to a dead man. Now there are certainly expressions used by Lord Mansfield, in Aslin v. Parkin (2. Burr. 668,) which go the full length of determining, that the lessor of the plaintiff in ejectment is, substantially and in fact, the real and only plaintiff. In Doe v. Pilkington, 4 Burr. 2440, the same learned Judge says--- "An ejectment is a mere fictitious action. The demise is a mere matter of form. It does not exist. It is not like a real title." Two things nevertheless are clear. First, that these and similar expressions, have no application to the record . Secondly, that they must all be considered with due regard to the object in view; and for securing which, the apparently conflicting rules in this peculiar form of action have been established. Now that object undoubtedly is, the forcing of the parties to go to trial on the merits. The action is expressly stated to have been "invented, under the control and power of the Court," for that purpose. 2. Burr. 668. Again; in Fairclaim v. Shamtitle, 3. Burr. 1294, it is described as "an ingenious fiction, for the trial of titles to the possession of land"--- and as an artifice, which would have been criminal, had not the Court "converted it into a fair trial with the proper party ." Accordingly, in the case last cited, Lord Mansfield observes that the Court has power to impose any terms on the plaintiff to effect that purpose; and that with the same view, the Court compelled the party in possession "to allow the fiction , and go to trial on the real merits." Thus it is, that we have the rule which is stated in Doe v. Jackson, that (since he is treated as a trespasser, and the object of the suit is to turn him out of possession,) the defendant is not confined to a denial of the title alleged, but may show title in himself at a time posterior to that title. There the fiction is violated; because, on the record, the title of the nominal plaintiff, from the date of the supposed demise, is admitted. This is a consequence, however, which is essential for the trial of the case on the merits: and the demise, therefore, becomes mere matter of form. On the other hand, for the purposes of the record, and to give consistency to the title there stated, the fiction is regarded as a reality. The lessor of the plaintiff, therefore, must establish a right to make the demise, at the time when it is alleged to have been made. And, for the same reason, it would seem just to require the defendant to dispute only, or defeat that title. The party really suing, whoever he may be, states a title at any given date; but that title he must prove as laid. In whomsoever that title will be laid, a fictitious right is deduced from him by the pretended demise; and so, the record remains unimpeached. "Looking to the record ," says Lord Ellenborough, (in Doe v. Brewer, 4. M. and S. 302,) "we must consider those as real parties to the action, who are parties upon the record. For this purpose the action must be taken, with all its consequences, as if it was really pending between those parties. For other purposes, indeed, we treat it, as it really is, as a fictitious action. But, as matter upon the record, it must be taken as if really between the parties to it."---And Mr. Justice Bayley adds--- "In Aslin v. Parkin, Lord Mansfield was not considering how the matter stood, as between the parties upon the record , but independently of the record. As regards the record, we must regard John Doe as the real party." Accordingly, in that case, a plea of release by the lessor of the plaintiff, (pleaded puis darrein continuance ,) was held to be bad. And, for the same reason, "because the right is supposed to be in the lessee," it is stated in Bac. Ab. Pleader Q., that if the lessor of the plaintiff dies, such death cannot be pleaded since the last continuance. It is true, this is no decision that the fact of the death, at the time of the action brought, would not be a defence at the trial. But, having regard to the various authorities, and to the reason of the thing, on the principles stated, we are of opinion that proof of such death would be, and was in this case, no defence:---first, because it was not and cannot now be necessary, for the trial of the title to the possession of the land, on the merits; secondly, because the fact was and will be immaterial, in reference to the title stated on the record---which was equally valid, at the commencement of this action, whether the party supposed to have made the demise were then living or dead; and, thirdly, because the defendant has entered into a consent rule in this action, in which he must have recognised, and in terms dealt with the lessor of the plaintiff, as an existing person--- and if he was deceived in that matter, it appears to us that his remedy (if any) was by application to the Court. On the merits of the case, having regard to the question of title, we conceive that it has been sufficiently established, that no injury can practically result from Devine's death; because, supposing a title to be made out in him, at the date of the fictitious forty years demise, the defendant will be at liberty, treating that demise merely as a fiction, to deduce a title from Devine subsequently, or to show by any other means a right to possession in himself, at the time of this action being brought against him.

The opinions expressed by us on the point last disposed of, and the explanation given of the principles on which this fictitious form of action is founded, will have already indicated the conclusion at which we have arrived, as to the motion in arrest of judgment. We are not aware of any precedent for such a motion in ejectment. But it is sufficient to say that, for all purposes connected with the record , we must regard the allegations in the declaration as substantial; and so regarding them, and for the purposes of this motion taking them to be true, the plaintiff John Doe has there set out and established a clearly unimpeachable title.

On the grounds of exception to the Judge's charge, and the verdict consequent thereon, there will be a new trial; and the costs are to abide the event.

Published by the Division of Law, Macquarie University