Lord v Jackson, 1838

[land law, uncertain title - newspapers, place of publication - conveyancing, informal - Caveat Board]

This day came on again for trial the very important case of Lord v. Jackson & Addison. It was before the court the last term, but as the property in dispute is of great magnitude, it was thought it would be most advisable and beneficial for all parties to have the matter settled by reference. It seems, however, that the plaintiff and defendants could not agree upon terms, and the case is now to be determined by the verdict of a special jury. The contested claim relates to the extensive and valuable premises where the Colonial Times, Tasmanian and Trumpeter are now published. Messrs. Jackson & Addison purchased the ground from an old man who had very long resided in a small house built thereon. This man is now dead, and Mr. David Lord claims the whole of the property, with the large house and printing office, as the right landlord, having long since purchased the premises. A great number of witnesses are in attendance on both sides, and it is probable that the trial will not be over till late this evening. In our next we shall make a full report of the proceedings.

In our last we briefly alluded to this case, which was not disposed of when our paper went to press. The public took a most lively interest in this issue, not only on account of the great value of the property in question, but that owing to many similar transactions in this colony, when formerly conveyances were drawn in a very loose manner. We fear, that unless the legislature shall afford prompt interference, much property will be placed in jeopardy, and become subject to litigation. The premises in dispute are situate in Collins-street, and occupied as a printing-office, yielding a rental of nearly Ł400 per annum, and have been built at a very considerable expense by Messrs. Jackson and Addison. These gentlemen purchased the ground of Mrs. Maclaren, an adopted child of Holsgrove’s, who died intestate. Holsgrove had long been in possession of the property. Messrs. Jackson and Addison allege that they formed no idea at the time of purchase, that Mr. Lord could have any claim on the premises.

The Attorney General and the Crown Solicitor were for the plaintiff, and Messrs. Stephen and Horne for the defence. It appeared that the allotment was originally granted to one Francis Shipman. In 1808, this man, it was said, had disposed of the property to Mr. James Lord, the father of Mr. David Lord, to whom Shipman owed a sum of money, and had provided him with a passage to England, with some provisions. The real question at issue then was, who had purchased the property of Shipman, Mr. James Lord, or Holsgrove. It was argued for the plaintiff, that Holsgrove merely resided in the dwelling-house with Shipman -- that when he sent to England, Holsgrove quitted the premises, but afterwards returned by permission of Mr. Lord.

The evidence adduced was of a very contradictory character, and the amount given for the value allotment was six pieces of common print, at 10s per yard, some calico, and some pounds of tea and sugar, the former at 50s. per pound; and it was also proved that Shipman had been by Mr. Lord provided with a passage to England, and that sheep had been sent on board for his use. This was partly proved by a woman of the name of Davis, known as Jenny Trotter, and who had, according to the custom of the times, lived in a state of concubinage with Shipman. It was said that Holsgrove was always in a very indigent circumstances, and could not have possessed the means of purchasing from Shipman. This part of the evidence was partially rebutted on cross-examination; it was proved that Holsgrove was in the habit of earning a good deal of money by writing and keeping accounts for various persons, and among others, for Mr. James Lord. Mr. Maum, of Clarence Plains, long acquainted with all the parties, gave very straightforward evidence. He deposed that an offer had been made by Mr. Lord to the widow Holsgrove, of Ł500, would she consent to relinquish all her papers and give up possession. Mr. Maum, however, acknowledged that Holsgrove was indebted to Mr. Lord.

It was proved for the defence, that Mr. Jackson had purchased the property of Holsgrove’s widow -- that it was a bona fide transaction, and a fair price given.

The Jury then retired, and after about three quarters of an hour’s deliberation brought in this singular verdict, although strictly in conformity with the evidence adduced on the trial. “We find that there is some evidence of Lord’s having purchased from Shipman, but none that Holsgrove purchased of him. We find according for the plaintiff.”

The following summary of the evidence on both sides has been obtained from a gentleman of the profession in Court during the trial, and may be relied upon as substantially correct.

The evidence on the part of the plaintiff went to prove, that a man named Shipman was possessed of the property in question, and that Holsgrove, who arrived in 1808 a prisoner from Sydney, was residing in a menial capacity in the house. That Shipman left the colony in 1810 -- had sold the premise to Mr. James Lord, to whom he was indebted, and who made him some payments in property, and paid his passage to England. That a conveyance was executed by Shipman to Mr. James Lord, in the presence of two witnesses, but that the papers were afterwards lost, and that Holsgrove, then clerk to Mr. James Lord, was accused of having taken them. Mr. R. L. Murray had offered the premises for sale to Mr. Kemp, but Mr. Kemp had stated his disinclination to purchase a lawsuit. That Mr. Kemp applied to Mr. James Lord to purchase, but was informed that it was his intention to permit Holsgrove (then his clerk) to remain in the house as long as he lived, and that he therefore would not sell. It was proved by Mr. Butler, that after Holsgrove’s death Mrs. Kingsmill (other Holsgrove) waited upon him, in consequence of the application of Mr. Stocker for letters of administration of Holsgrove’s estate, and made a declaration (reduced into writing at the time) which the defendant’s counsel admitted would put her out of Court; and a letter of Mr. Surveyor General Evans was tendered, to prove that Holsgrove had improperly obtained a certificate that he was in possession of, and entitled to, a lease of the property, but was refused. The books of the Survey-office were produced, to show that Holsgrove’s name had been inserted, and that Mr. Lord’s had been substituted. Holsgrove was proved to have been in great distress, and was said not to have been in a condition to purchase at Shipman’s departure.

For the defence, it was insisted that Holsgrove had always appeared to be the owner of the property, and that in the opinion of many witnesses who were produced he was so. It was proved that he was given to drinking, and that in his joyous moments he was in the habit of stating the property to be his, and that it was his intention to leave it to his adopted daughter. This was shewn by Messrs. Alexander, Bellamy, Mitchell, John Clarke, U. Allender, and several other old hand. He had on one occasion said he had made arrangements with Mr. Lord and got his papers, and had given an entertainment on the occasion. The books of Mr. Lord were produced, having been kept by Holsgrove, but the settlement did not appear. It appeared on the trial, that it was agreed between the parties to refer to arbitration, in case Mr. Lord obtained the verdict. Whether or not Messrs. Jackson and Addison were purchasers or builders without notice of Mr. Lord’s claim, and in the event of no notice, that a price should be fixed on the land, and the buildings be the property of Messrs. Jackson and Addison.

The trial although of much importance to many persons holding property in this country under a similar tenure, was otherwise dull and tedious in its detail. We purposely abstain from offering any extended remarks, as we are informed that Messrs. Jackson and Addison intend to move the Court for a new trial.

LORD v. JACKSON -- This was the first issue tried under reference from the “Caveat Board,” and its object was to decide whether Mr. Davis Lord or Messrs. Jackson and Addison, the party claiming and in possession, was entitled to a grant for the fine range of buildings in Collins-street, occupied as the Colonial Times and the Clerk of the Peace offices, &c. Jackson and Addison bought the ground from Kitty the Broker, who cohabited with a man named Holsgrove, or “Billy the Broker,” who was murdered some years ago at Pittwater. They made the purchase of the faith of one of the old “town leases,” granted to Holsgrove by Colonel Sorell. Mr. Lord contended that it was purchased by his father from a person named Shipman, and that Holsgrove had surreptitiously obtained the lease in his own name. The defendants very fairly and honorably admitted, that the property had been vested in Shipman, and rested their title on an alleged purchase by Holsgrove from Shipman. The Jury in this case was the most respectable and intelligent we have seen impanelled in the colony. We stated last week that they found by their verdict, “That there was some evidence of Lord having purchased from Shipman but none of Holsgrove having purchased,” and found for the plaintiff: thus so far making good Mr. Lord’s claim to the houses. But we understand that six, or more, of the Jury, have since signed a paper, which stultifies their verdict, and will be the means of sending the case again to trial. We hope, before then, that the parties will come to an amicable understanding, and not make themselves pigeons (as some wag wrote opposite their names on the Court House door) for the lawyers to pluck.

This was a most important case, and we understand that it will unsettle half the property in town. Indeed, the Chief Justice, on the trial, in reference to some remark about the proceedings of the Survey Office, observed, with just indignation, “THE PROCEEDINGS IN THE SURVEY OFFICE ARE NOT WORTH THAT!” throwing down a piece of paper.

We beg the attention of all possessors of houses and land, to the trial of Lord v. Jackson. It is, we fear, the commencement of a series of cases which will soon occur, in consequence of disputed claims to land. The loose manner in which conveyances were formerly made and the strange method, altogether in which transactions of the nature were conducted, will afford endless cause of litigation; -- and we can foresee that much valuable property will change hands, thereby inducing a state of great confusion and suffering. -- We implore, therefore, that henceforward, those who purchase landed property will have every necessary document properly, and most carefully prepared, through the means of an able and accomplished conveyancer. The expense may be greater in the first instance, but it will save much subsequent loss and trouble. It is, indeed, a “penny-wise and pound-foolish” plan to act otherwise; for, what can be more utterly deplorable, than the sad reflection, that, when we ourselves quit the vale of bitter strife and animosity, our helpless and innocent off spring may be exposed to the sad effects of successful litigation?

We would therefore, earnestly impress upon the mind of every person, who has any thing to bequeath -- so to bequeath that something, that the law shall not be permitted to interfere, they may, then, prepare for their long and everlasting rest, without any compunction, or the slightest feeling of sorrow or distrust.

We shall return to this subject -- again and again; for the present, we must rest satisfied with our advice and admonitions; but we cannot help observing, how great and how meritoriously the several counsel engaged, exerted themselves. Mr. Stephen shone with great lustre, and proved himself a Barrister of first-rate excellence.

Before His Honor the Chief Justice and a Special Jury, Thursday and Friday, the 29th and 30th March, 1838

This important case came on to be argued on Thursday, by appointment, it having been adjourned in consequence of some error in the pleadings, which we noticed at the time; from the value of the property at state, and the nature of the transaction, it excited very considerable interest. The Attorney General and Mr. Ross were for the plaintiff, and Messrs. Stephen and Horne for the defendant.

Mr. Ross having read the pleadings to the Jury, the Attorney General stated the case to them. The learned gentleman observed, that there were only two questions for the Jury to try; FIRST, whether, in January, 1824, the land in dispute was the property of David Lord, or of one William Holsgrove? (Billy the Broker) and, SECOND, whether a certain certificate, which contained the name of William Holsgrove; should not have contained that of James Lord? These were the facts for the Jury to substantiate. This land was originally the property of Francis Shipman, who about the year 1808, became indebted to Mr. James Lord; to liquidate this debt, and to secure his passage to England, he disposed of the land to Mr. Lord, who, accordingly, provided him with a passage, and furnished him with a certain portion of provisions. Shortly before Shipman left the Colony, a person named Holsgrove became domesticated with him; but when he went to England, Holsgrove quitted the premises, and returned, afterwards, on sufferance, and by permission of Mr. Lord. At this time, Holsgrove was occasionally employed by Mr. Lord, who was an illiterate man, as a clerk and book-keeper, and, being considered a clever and clerkly personage, Mr. Lord reposed some confidence in him, and trusted his paper to his care. On one occasion, Mr. Lord, missing some documents, connected with the land in Collins-street, charged Holsgrove with having purloined them, and threatened to take him to the Police Office; he did not do so, however, as the papers were restored.

Before Shipman went to England, he conveyed the property to Mr. Lord -- and, now comes the question, how did it come into the possession of Mr. Jackson. The defence stated, that Holsgrove purchased it of Shipman; and that Mr. Jackson purchased it of Mrs. Maclaren Holsgrove’s only child, and, of course, heir at-law.

This was the case, the learned gentleman was called upon to prove, and he should proceed at once to do so.

Much conflicting evidence was adduced on both sides. For the plaintiff, it was shewn that Mr. Lord had provided Shipman with a passage to England; that he had send for his use, some sheep on board a vessel, and that he had given his sundry articles of property, money not being a medium of circulation in those days. This property consisted of six pieces of common print, at 10s. per yard; some calico, and a few pounds of tea and sugar, the former then selling at 50s. per lb. This was partly sworn to by a woman named Davis, formerly known as Jenny Trotter, and who lived, “as was then the custom,” in a state of concubinage with Shipman. It appeared that this woman, who gave her evidence in a very insolent manner, was sent with her husband, who occupies a farm of David Lord, at the Black Brush, to Macquarie Harbour, some years ago, “about some sheep.” Evidence was also adduced, to shew, that Holsgrove was never in circumstances to purchase the land of Shipman; that, in fact, he was always in indigence and want, and a dissolute character. He came hither a prisoner from Sydney, and was taken into the Commissariat, as a writer, for which he received his rations, but no salary.

On cross-examination, however, it was elicited, that Holsgrove was in the habit of earning money by writing and keeping accounts for several persons; among others for Mr. James Lord, and that he executed many conveyances. It was stated, also, by Mr. Maugham, who was intimate with the parties, that an offer was made to Mrs. Holsgrove, after Holsgrove’s death, by Mr. Lord, that if she would relinquish all her papers, and especially ONE paper, and give up possession, he, Lord, would either give her Ł500, or build her a house to live in till her death. Mr. Maugham, also acknowledged, that he was considerably indebted to Mr. David Lord.

For the defence, it was urged, that the defendant, Mr. Jackson, purchased the premises of Holsgrove’s widow, at a bona fide sale, and for a fair price. Several witnesses were called to prove these facts, and much evidence was adduced in support thereof.

His Honor, in summing up, directed the Jury to consider only one issue -- namely, who purchased the property of Shipman, whether Mr. James Lord, or Holsgrove. -- Upon this, and upon this alone, the whole case hinged.

The Jury retired, and after an hour’s deliberation, returned into Court, when Captain Swanston delivered the verdict, as follows:-- “We find that there is some evidence of Lord’s having purchased from Shipman, but none that Holsgrove purchased from him. We find accordingly for the plaintiff.”

[1] Lord was a large landowner, see S. Allen, ‘David Lord (1785-1847), ADB v. 2, pp. 126-7. For the Caveat Board see R. Snell, ‘The Caveat Board: An Overview of a Key Colonial Tribunal, 1835/59’, Tasmanian Historical Research Association Papers and Proceedings, v. 42, no. 4, 1995, pp. 192-213. The newspaper contradicts itself in stating Montagu as the trial judge, and then Pedder for the same trial. The True Colonist confirms that it was Pedder, not Montagu.

This important case is reproduced from several newspapers because of their differing approaches to law reporting. The uncertainty of land titles led to the establishment of a Caveat Board in Van Diemen's Land and an equivalent in New South Wales called the Court of Claims. They were to resolve disputed claims less formally than the Supreme Courts. The New South Wales Court of Claims was to act according to "the real justice and good conscience of the case, without regard to legal forms and solemnities." (See A.C. Castles, An Australian Legal History (Sydney: Law Book Company 1982) 215-216.)

There were many similar cases in New South Wales, including R. v. Steele, 1834 and R. v. Cooper, 1825. On the termination and reappointment of what it called the "humbug caveat commissioners", see Launceston Advertiser, 4 October 1838.