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

Howell v. Coughlan [1847] NSWSupC 32

succession, title to land, lease

Supreme Court of New South Wales

Stephen C.J. , 18-19 November 1847

Source: Sydney Morning Herald, 20 November 1847, in Supreme Court Collection, Vol. 2, pp 27-28

BEFORE His Honor the CHIEF JUSTICE and a Jury of four.


This was an action of debt for the use and occupation of certain premises by the defendant; the defendant pleaded never indebted.

Messrs. Foster and Darvall appeared for the plaintiffs, and Mr. Lowe for the defendant.

Mr. FOSTER stated the plaintiffs' case. The action was brought by the plaintiffs to recover a debt, in the shape of rent, for premises, from the 3rd day of September, 1844, to the 28th day of September, 1847, and which had been occupied by the defendant during that time; the premises were situated in Phillip-street, Sydney, and were the same premises about which there had been so much litigation, both in this and in the Police Court. The plaintiffs claimed title to the premises in question as follows:-On the 30th day of June, 1823, one William Blake had granted to him from the Crown a lease of the premises for twenty-one years duration; on the 14th of July, 1825, William Blake assigned the residue of his term under the lease yet to come, to one Joseph Cheatham; Cheatham died whilst the term mentioned in the lease was in existence. He made a will devising and bequeathing his property, including the lease, to Messrs. Thomas Howell and John Holmes. After the death of the testator, the trustees entered into possession of the premises, and received rent from the defendant. In 1829, Howell, pursuant to a proclamation, and whilst also the lease was in existence, applied for the grant of the premises; the claim was preferred to the Court of Claims, and ultimately the grant was made out in favour of the trustees of the will of Cheatham, on the 18th June, 1840, for the purposes of carrying out the trusts of the will; the testator having thereby left this and other property to be realised, and the amount received to be divided amongst his brothers and sisters, &c. John Holmes, whom it would be shown was wrongly designated in the will, died before Thomas Howell, and therefore the latter took the estate by survivorship; Thomas Howell died on the 3rd of September, 1844, having first made his will, delivering the trust estates to the present plaintiffs as executors and trustees thereof. Some years since the defendant got into possession, and though he had paid rent to the testators of the present plaintiffs, yet to these latter gentlemen the defendant refused to pay rent; an action of ejectment had been commenced, and was tried against the present defendant, when the defendant defeated the object of that action, by setting up a lease from Thomas Howell, deceased, in favour of him, creating a yearly tenancy, rent payable monthly, at £7 10s. per month. And in support of this present action, to show the holding and its terms, the plaintiffs would put into evidence that lease. A question no doubt would be raised as to the legality of the grant to the trustees of Cheatham's will, on the ground that the Crown was deceived when granting it; but the solution of that question, it was contended, would be in favour of the plaintiffs. Allcock v. Cook, 5 Bing., 348, was referred to.

It was now proposed to put into evidence the lease from the Crown to Blake, which led to an objection being raised, and arguments thereon, on the ground that this was an action merely for use and occupation, and that in this form of action doubtful titles could not be tried, citing Chitty on Contract, 296, and Woodfall, Landlord and Tenant, 607; after some little argument from the other side, subject to an objection made, and noted by his Honor, it was received in evidence.

Mr. Roger Murphy was then called, who proved that he knew for many tears one Richard Hughes, who was a jobbing clerk in attorneys' offices some fourteen or fifteen years ago; did not know that he was dead, though he had not seen him during the last fifteen years. He then proved that he knew the handwriting of Hughes; and upon being shown the conveyance from Blake to Cheatham, proved that the deed was attested by Hughes; that he knew Blake, and that he lived on the premises in question.

The Prothonotary then produced the will of Joseph Cheatham, and the "act of probate." The will was then put in, but his Honor refused to accept the "act of probate." This witness also produced the will of Thomas Howell, dated the 31st August, 1844, together with the "act of probate." This latter will was proved by Mr. Poignand, the solicitor, to have been signed and attested in the usual way. The "act of probate" was not received in evidence.


Mr. FOSTER now offered in evidence the "probate" itself of Cheatham's will, assigning as a reason, that it may so turn out that it may be incumbent on him, on the part of the plaintiffs, to show that they are suing in a representative character, and probate would be evidence of such character. His Honor admitted it in evidence, noting however an objection made to its reception on behalf of the defendant. The probate of Howell's will was also received in evidence subject to the same objection.

John Kellick then proved that he knew Cheatham; that he died about eighteen years ago; that he knows the premises, that Cheatham lived and died there; he purchased them of one Blake; that he know James Holmes; he was a friend of Cheatham's; his name was James, and if called John in the will it was an error. (Mr. Lowe objected to this species of evidence,---it was admitted however.) That he had seen the defendant on the premises; that he knew Sylvester, that he lived in the front of the premises; that they front Wentworth-place, in Phillip-street; that James Holmes is dead; and lastly, that he attested the will of James Cheatham, which was attested in the usual way, where the testors are marks-men. Upon cross-examination he said he could not swear that there was not a John Holmes in the colony, but he did not know one; that he had not seen Hughes for sixteen years, and that enquiries had been made of the witness for him.

Mr. T. Copeland proved having unsuccessfully made searches after Hughes.

Mr. John Smith, the solicitor, proved that he had been employed by the executors of Cheatham respecting the premises in question; that the defendant had occupied them since about 1841; that persons of the name of Sylvester and Trevers had lived there also; that defendant paid rent to him, the witness, in April 1842, on behalf of Howell; that he put the defendant into possession of part of the premises, he having been in possession of the other part before.

Sylvester and Trevers then respectively proved that they had been in possession of the premises, and that they had paid rent to Smith, who acted on behalf of Howell, (deceased).

Mrs. Howell's evidence, taken de bene esse , was then read, which proved that she was the wife of the Thomas Howell, deceased; that she had seen the defendant pay rent to him; that he died on the 3rd September, 1844; the lease from Howell to the defendant was then called for, but it was not produced, and

Mr. John R. Want, the solicitor, then proved that he was concerned on behalf of Messrs. Gosling and Brown in the ejectment suit against the defendant to recover possession of the premises in question, (he produced the roll of the proceedings in that cause); that there were more demises than one, but the one relied on was that in the name of Gosling and Brown; the witness here stated that the defendant in that action appeared by counsel, and a lease was then produced, of which a copy was taken; it was dated the 2nd of March, 1843, and was to the effect already stated.

Mr. LOWE objected to the latter portion of this witness's evidence, on the ground that the lease was produced in a cause, the parties to which were not the same as in the present action.

The objection was argued at some length, but the evidence was received by His Honor, as above.

Mr. John Armstrong, one of the Jurymen, and a Surveyor, proved having seen the premises in question; they are included in the lease from the Crown, as well as in the grant. Upon the various documents being read, this closed the plaintiffs' case.

Mr. LOWE now moved for a nonsuit, making no less than eight points, many of them being of a highly technical nature; not only to show that the contract of tenancy proved was different to that declared upon by the plaintiffs, but affecting the legality of the very grant itself, and consequently all the titles acquired subsequent thereto.

His HONOR, without calling upon the other side, and without expressing any opinion upon all the points taken, intimated that he was of opinion that the action would lie at the suit of the plaintiffs, and that there was ample evidence to go to the Jury.

Mr. LOWE, then in a few words addressed the Jury, telling them the case must come before the full Court for argument upon the points he had already taken, and he would therefore only state, that he would call one witness, who would prove that John Thomas Howell, one of the plaintiffs, had, in the presence of the witness, disclaimed being landlord to the defendant.

Benjamin Sutherland then proved, that he went with the defendant to Howell's house some eighteen months since, when Howell said, in answer to some question put, that he never was defendant's landlord; that he wished to get rid of the whole affair, and did not like people seeing him going into the premises.

Mr. FOSTER then replied upon this evidence, contending that it amounted to nothing; it may have been made by Howell in ignorance of his title to the property, and therefore would not assist the defendant.

His HONOR summed up, shortly advising the Jury to find a verdict for such an amount as might be due from the 2nd of October, 1844, to the time of action brought, in favour of the plaintiffs, with liberty reserved to the Court to alter the verdict in favour of the defendant, if the Court should be of opinion that the plaintiffs could not maintain the action.

The Jury accordingly found a verdict for the plaintiffs, debt £252 10s., &c.

Attorney for the plaintiffs, Mr. Want, and for the defendant, Mr. Johnson.

Full Court, 15 December 1847

Source: Sydney Morning Herald, 16 December 1847, in Supreme Court Collection, Vol. 2, p. 40

BEFORE the full Court.


This was an action of debt for the use and occupation of premises in Phillip-street; and at the trial the plaintiffs proved the following title to the same. On the 30th of June, 1823, the government granted to Wm. Blake a lease of the premises for twenty-one years; in July, 1825, Blake assigned the remainder of his lease to one Joseph Cheatham, who, whilst the term created by the lease was unexpired, died, first having duly made his will, devising and bequeathing all his property to persons (Thomas Howell and John Homes) in trust for the brothers and sisters of the testator. In 1829 Howell and Holmes obtained a grant of the premises upon the trusts mentioned in the will of Cheatham. Holmes died before Howell, so that the latter took the estate by survivorship. Thomas Howell granted a lease of the premises in question to the defendant, creating a yearly tenancy, rent payable monthly, at £7 10s. per month. Thomas Howell died in 1844, having first made his will, devising his "trust estates" to the present plaintiff; under which devise it was argued that the premises in question passed. It was proved also that the defendant had paid rent to Thomas Howell, deceased; but ceasing to pay rent, and refusing to quit the premises after his death, an action of ejectment was commenced and tried this year, which was defended by the present defendant. In the course of that trial, the defendant, through his counsel, put into evidence the said lease granted to him by Thomas Howell; the plaintiff was therefore put out of Court. To prove on what terms the defendant held the premises, the plaintiffs in the now action sought to put into evidence the lease set up by the defendant in the ejectment suit, and the original not being forthcoming, secondary evidence was given of it. For the defendant.

Mr. LOWE then moved for a nonsuit, on no less than eight different points, which being refused he proceeded to address the Jury, and called one witness, who spoke to a conversation held between one of the plaintiffs and the defendant, which was offered as amounting to a disclaimer by one of the plaintiffs, as being landlord to the defendant. The case was tried before His Honor the Chief Justice, during the last Nisi Prius Sittings, and the Jury were advised to find a verdict for the plaintiff for the amount claimed, being £252 10s., subject to the opinion of the Court as to whether the plaintiffs could maintain the action.

Mr. LOWE now, for the defendant, contended that the plaintiffs could not maintain this action abandoning, however, several points that he had made at the trial. It was urged that the lease admitted by His Honor at the trial was improperly received as an admission, for it was made by a counsel in a cause the parties to which were different to those in the present action. If it were receivable in evidence it would be a very dangerous practice; and if admissions made by counsel were to be used hereafter against their client, counsel would in every case be much hampered in the conducting their case. Although it was admitted that a tenant could not dispute his landlord's title, yet it was urged, as in this case, a tenant might dispute the particular estate set up by his landlord, and therefore, it was open to the defendant to show that the particular title alleged to have been proved by the plaintiffs at the trial was not in fact proved, and did not in fact exist; the question was, whether the subject matter of this action vested in Howell, deceased, in trust for any one; and if not, as it was contended, then the plaintiffs could not maintain this action, for they claimed as devises of trust property; and going to the primary title of the land, it was submitted, that the grant was void, and that all conveyances founded on it were likewise void.

Messrs. Foster and Darvall were called upon by the Court to show, in the first instance, amongst other things, that the subject matter of this action passed under the will of Howell, deceased, as trust property to the plaintiffs; and they were in the course of arguing that if it were not in fact property, yet there was ample evidence at the trial to show that the testator, Howell, had treated it as such---

The COURT, without hearing any argument on the other points, and without giving any specific opinion on the various points raised, said that the action would most certainly lie; and as to the last point, which the Court had called upon Mr. Foster to answer, and which he had answered by saying there was ample evidence of the property having been all along treated as "trust property;" the Court said that there had been ample evidence at the trial of its so being treated by Howell, deceased, yet the plaintiffs' counsel ought, at the trial, to have requested the presiding Judge to have directed the jury to have found---it being a question of fact---whether the trust property was treated by Howell, deceased, as trust property ort not; and as the plaintiffs by not having done so, had induced the defendant to come and try to upset the verdict --- the verdict was ordered to stand, each party to pay his own costs.

Published by the Division of Law, Macquarie University