Burnett v. Simpson and others. - The plaintiff in this case was William Burnett.  The defendants were Samuel Simpson, John Williams, and William Williams.  The Bill prayed that a certain mortgage might be established against the whole of the defendants, that it might be referred to the chief clerk to ascertain what sum might be due to the plaintiff, and that defendants be decreed to pay over to plaintiff, all such monies as might be due to him, or in default that the lands be sold to satisfy the mortgage &c.  The Attorney General said; The Bill stated that John Williams, late of Sydney, deceased, arrived in this colony in 1820, under sentence of transportation for fourteen years, and afterwards obtained a ticket of leave, and got possession of an allotment of land situate in Pitt Street.  He subsequently applied to government for a grant of the same.  It was advertised in his favor in the usual form; previous to the grant being made out, he requested that it might be drawn out in the name of his second son John Williams Jun., one of the defendants to the bill.  This request was made in consequence of the elder Williams being under sentence of transportation, (his son being free).  It was accordingly made out in the name of John Williams the younger, dated 17th October 1831.  John Williams the elder, died; a month afterwards, previous to his death, defendant Simpson married a daughter of old Williams; previous to the death of the father, he had promised to settle upon her a moiety of this land, and a deed of gift was accordingly prepared, but in consequence of the sudden death of the old man it was never executed.  Immediately after the death of the father, William Williams the eldest son, and heir at law, executed a deed of gift, in December 1831, conveying half the land to Simpson, with a view of fulfilling the promise of his father; defendant Simpson entered upon possession of the moiety of the property, and by a mortgage in 1832, he raised a sum of £200 from a person named John Malcolm; this sum he expended in the erection of a good and substantial cottage upon he premises; this sum of £200 was borrowed with the full knowledge and privity of the other defendant John Williams, who at that time resided in a house standing upon he other moiety of the land.  The deed of gift made by the eldest brother, was also made with John's full knowledge and privity.  It being understood that John was only a trustee for his father, Malcolm the mortgagee; having applied for his money, plaintiff paid off the mortgage, advancing £400 for that purpose by Indenture, bearing date January 1833, signed by Simpson on the one part, and plaintiff on the other.  In consideration of plaintiff paying this money, Simpson granted all the land, right, title &c. in the usual terms of a mortgage deed; of this £400, £200 went to discharge the mortgage of Malcolm, and the remainder to the completion of the cottage; no part of this money, or interest had ever been paid.  The bill charged the defendant John Williams, with being aware of Simpson's application to Malcolm for the money, and also of the mortgage of plaintiff; it was not until after a considerable arrear of interest had accrued, and when plaintiff threatened to foreclose, that he received any notice of the nature of the grant.  Simpson now disclaimed all right and title to the premises, and refused to pay either principal or interest; plaintiff had applied to John Williams to ratify the agreement, but he refused to do so; John Williams in his answer acknowledged that he had the land only on trust; admitted that the grant was made out in his name as a trustee on behalf of himself, and the other children of John Williams deceased; the defendants did not deny the allegation in the bill, that it was owing to the father being a prisoner of the crown, that the grant was made out in favour of John Williams the  younger, as trustee.  They all admitted that Simpson did erect the cottage upon the land, and with their knowledge, and privity.  William Williams admitted, that he made the deed of gift under the impression that he was entitled to do so, as being heir at law to his father.  John admitted that he lived on the other moiety of the land, and was privy to the erection of the cottage, and Simpson admitted having executed the mortgage deed.  The first answer put in was objected to, as not being sufficiently full, and an amended one was afterwards put in.  It appeared that none of the parties knew at the time of his death, that the grant had been made but in favour of his son John, but it was known at the time of the mortgage.  W. Williams stated that none of his family knew he had executed the deed of gift until twelve months after.  It was very evident that with the defendants, who gave a joint answer, there was more than an usual combination, to defraud the plaintiff of his money, as it had been advanced with the knowledge and privity of them all.  Their acknowledging the trust to be in the terms as stated, was for the purpose of excluding the plaintiff from his equitable right.  But there was no written declaration of trust, and therefore John Williams must be looked upon as the trustee only of his father -  That was the legal and natural view to take of it; agreeably to an act passed 29th Charles 2nd.  The acknowledgment of William Williams to the trust, could not be true, because there was no provision made for the mother.  That fact coupled with the want of a written declaration of the trust, showed that it was a mere compact with the family to get rid of the trust.  The mother stated in her affidavit, that she heard it mentioned in the family that the grant had been made out in the name of her son John, he being of the same name as his father.  It was known to all the family that William made over his claim to his sister.  This was given as a marriage portion, there could be no doubt; John being only a trustee for his father, William had full power to take possession of the whole, and therefore could make a deed of gift of the moiety, to Simpson.  Living as they were all together, it was impossible they could be otherwise than acquainted with each other's transactions.  In order to get rid of Simpson, and this was the consequence of the mortgage, they say that the intention of old Williams was to secure the property to Mrs. Williams.  But they thought that when Simpson married the daughter, he was a man in good circumstances, and they did not know to the contrary, until he advertised the cottage for sale.  It was hardly likely that Simpson would have expended money upon property which he could at any time be excluded.  The title of Simpson was not converted, until he got into insolvent circumstances - until in fact he was unable to pay off the mortgage which he had incurred, and which tended to make the property more valuable.

Mr. Justice Burton enquired if there was any evidence of the deed for a moiety having been made out in the life time of the father.

Mr. Foster - No, your Honor, it is most positively denied.

The Attorney General - But it was understood by the whole family, that Simpson was to have one half.  The very fact of their permitting Simpson to hold the moiety of the land from the life time of the father, his building, and making various improvements upon it, was sufficient to establish the fact, that it was understood he should have it.

Mr. Poignand, Solicitor, proved the execution of the mortgage deed.

Mr. Newcombe proved the issuing of the grant under the seal of General Darling.

An affidavit of Mr. Verge was put in, which stated the value of the buildings to be £600, and that of the land £300.

Mr. Foster for the defence said, if it had not been for the answer put in by John Williams in this case, he being the son of the person to whom the grant was originally promised, it would have been considered that he was the original grantee.  He admitted that William Williams might have assigned over his own right, but he could not, that of any other.  He then went fully into defendant's case in the event of which he eontended, that the elder Williams being a prisoner of the Crown, he was incompetent to take the land himself.  Another point was that he died before the grant was issued; as he died before the land came into his possession, he could not have been seized of it, and therefore could not pass it away.  Having no estate in the land, his heir at law could derive no estate through him.