[trespass - land law, title - conveyancing, registration - damages, nominal - Court of Commissioners]

Davis v. Balsover

Supreme Court of New South Wales

Dowling J., 7 October 1834

Source: Sydney Herald, 9 October 1834[1]

Davis v. Balsover. - This was an action of trespass, brought against defendant for an alleged breaking and entering a close or paddock belonging to plaintiff, and taking forcible possession thereof.  Damages were laid at £200.  Plaintiff rested his case on proof of purchase, and occupancy of the property until deprived thereof by the act of defendant, for which he now sought redress.  By the evidence of Murphy, a quarry-man, and German, a stonemason, it appeared that they had been employed in the year 1821, to erect a stone wall on a portion of the same ground, that he had exercised a general ownership for at least five years before that period, and that his cattle usually depastured thereon.  The purchase was proved by a deed of transfer put in, from Ann Williams, wife of Mr. B. Williams, late coxswain of the Governor's boat's crew, for the sum of £9, purchase-money being paid in the presence of a female named Moss, deceased.  It had remained in the possession of plaintiff from that time, until within about a year and a half ago, when it was forcibly entered upon by the defendant, who took possession and built a house there on; not withstanding that repeated cautions had been given by plaintiff, not to proceed therewith, as not having a just title to it; he must be aware he was committing a trespass; these remonstrances were ineffectual, defendant maintained possession, and ultimately lodged a claim in the Court of Commissioners, but being opposed by plaintiff, the Commissioners decided in favour of the latter.  On the part of the defendant it was sought to be shewn, that plaintiff's pretensions were invalid, inasmuch as he had derived possession, as set forth, from a person who had no legal authority to convey the said property, and his conduct in reference to the transaction would seem to imply a consciousness of the fact.  The land in question joined an allotment of his, and finding that the proprietor remained in the interior, and seemed to take no notice of the allotment for a number of years, he commenced certain encroachments upon it, by the erection of a wall and fences, and turning his cattle upon it in 1821, although he had not purchased it until 1823, when he obtained the deeds of a transfer from Mannix to Balsover, from Ann Williams, for the sum of £9, at a time when the value of ground in that part of Sydney, had experienced a rise at a ratio almost incredible.  The history of the document alluded to was set forth, as furnishing a peculiar feature in the case, in support of defendant's title.  It appeared that in the year 1816, Joseph Balsover, the uncle of the defendant, purchased the land in question from William Mannix, now a farmer at Minto, for the sum of £7, and the deed of transfer produced in support of plaintiff's claim, was executed between the parties.  Joseph Balsover took possession accordingly, completed the fences then in progress of erection, and continued in the occupation of the same, for several years; but having at length purchased a farm in the interior, he left Sydney.  An Act of Council being passed, requiring land-holders to register the deeds by which they held title, Joseph Balsover requested a Mr. John Tawell, then about to visit Sydney, to convey the said deed to the office of Judge-Advocate, for better security, and preparatory to registration.  Balsover imagining that he had done all that was required by the Act, took no further steps for three or four years; when returning to Sydney, his first care was to call at the Registrar's Office for his deed, but after the strictest search, no such thing could be found.  Balsover waited on Mr. Tawell in reference thereto, when that gentleman assured him that he had faithfully executed his commission, by depositing it in the Office as required, and further, in order to give him every possible satisfaction, made a strict search amongst his own papers for it, but nothing was ever heard of it afterwards.  The present defendant Thomas Balsover, who emigrated to this Colony a few years ago, having obtained a deed of gift of the land, from his uncle, took possession of it, and erected a house thereon in the manner stated.  Joseph Balsover, and the family of the Williams's were on the most friendly terms, but no circumstances were ever transpired to elucidate the means by which Ann Williams became possessed of the deed in question, which was now relied on in support of plaintiff's right.  In the course of the evidence however, it was elicited from the witness Mannix, who appeared in behalf of the defendant, that the portion of ground on which the defendant had erected his house, formed no part of the allotment originally conveyed to Balsover, which allotment extended from the water-side to a bye-road used by the carts employed at the quarries; in the improvements which have been made in that neighborhood, a new road had been recently formed at the distance of about seventy feet from the boundary of the allotment, it is therefore, on the space between the old and the new roads, that defendant had erected his house.  It was contended, that in the terms of the Conveyance, Bulsover's allotment extended from the water-side to the street, and the law bound a man within the four corners of his own deed, which he could not repudiate; the deed expressly had reference to a street which was in contemplation, the former road was what was termed a blind road, and not taken into consideration being a mere local convenience for the inhabitants of that neighborhood.  It as contended by the plaintiff's counsel, that plaintiff was entitled to a verdict according to the evidence for the defence, for it clearly appeared by the testimony of Mannix, that he never conveyed the ground in dispute, and consequently, that defendant, even if he had shewn any conveyance from his uncle Joseph Balsover, which he had not done, could have no shadow of claim thereto.  The Assessors found a verdict for plaintiff, damages one Shilling.  Counsel for plaintiff, Mr. Wentworth, and for defendant Mr. Norton.

Notes

[1] See also Australian, 10 October 1834.  The trial notes are in Dowling, Proceedings of the Supreme Court, State Records of New South Wales, 2/3286, vol. 103, p. 112.  On the Court of Commissioners, see Bingle v. James, 1834.