[land law, title – ejectment]

Doe dem. Taylor v. Little

Supreme Court of New South Wales

Willis J., March 1840

Source: Australian, 12 March 1840

(Before Mr. Justice Willis, and a common jury)

            Doe dem Taylor; v. Little - This was an action of ejectment brought to recover possession of certain premises situate in Kent-street, Sydney. The plaintiff put in a deed of grant of the premises in question under the hand and seal of the Captain General and Governor Sir George Gipps, dated 7th May, 1838, which granted the premises to him as heir at law of Mary Ann Green, deceased. Mr. Windeyer, for the defendant, took various legal objections to the deed of grant itself, as a ground for nonsuit. His Honor thought there was great weight to be attached to the learned gentleman’s argument, but he would not decide, by his single veto, a case of so much importance, as it affected every landed proprietor in the colony. He was glad to see such a point raised for solemn argument, because, if there wanted any thing to make such title conclusive, the defect being shown, would, no doubt, be supplied by the government. The learned Judge then reserved every objection that could be taken upon the face of the grant, as to a nonsuit being entered for the defendants, and the case then proceeded upon the merits. It appeared that the mother of the lessor of the plaintiff held the premises in her original right, and afterwards intermarried with one John Green, a man under sentence of transportation for life. During Mrs. Green’s coverture with her second husband, the premises were mortgaged, and subsequently sold by the sheriff under a writ of fieri facias, the defendant becoming the purchaser. Not feeling himself satisfied with the sheriff’s title, the defendant subsequently procured a conveyance of the property from Green, but the plaintiff, Taylor, the heir at law of Mrs. Green, went to the Court of Claims, and obtained, through that channel, a deed of grant for the premises. The learned Judge summed up for a verdict for the plaintiff, wishing to leave the deed of grant unimpeached until the case came for argument under the points reserved before the full Court. The jury, however, found for the defendant. Counsel for the plaintiff, Messrs. Foster and Checke - for the defendant, Mr. Windeyer.