[land law, adverse possession – mortgage – reception of English law, land law – ejectment]

Doe dem. McKillop v. Lascelles

Doe dem. Lewis v. Bell

Supreme Court of Van Diemen’s Land

Pedder C.J., 16-17 March 1840

Source: Hobart Town Advertiser, 20 March 1840[1]

Before His Honor the Chief Justice and a Special Jury

In Ejectment

            Plaintiff is a mortgagee, and sought to eject defendant from possession by virtue of a grant from the Crown in favor of the mortgagors, Messrs. Gregson and Dobson. The defence set up was that the Crown had no authority to grant to Messrs. Gregson and Dobson, having been out of possession for more than 20 years, without receiving rents or profits, under the statute of 1 James I c. 14 and upon the authority of the case Doe dem Watt v. Morris, in 2 Bingham’s new cases. Evidence was adduced of the possession being in one McCarthy, deceased in 1816, by his having cattle running there, and also that in 1819 McCarthy inclosed and cultivated 20 acres of the land. But documents were also put in, shewing that the defendant Lascelles, in the year 1821, applied to the Government, as the representative of McCarthy, that the land might be located to him.

Mr. Stephen, for the plaintiff, contended that this was an admission on the part of Lascelles’ that the Crown was in possession at that time, and if so that up to the issue of the grant in 1837, there had been only sixteen years during which the Crown could be said to have been out of possession.

            His Honor, in summing up, observed that for the purposes of this action the Jury were to consider the statute of James I, cap. 14, as in force in this Colony, according to the opinion of Mr. Justice Montagu, in the late case of Lord v McLaren. His Honor had not yet made up his mind upon that point. It would however be open for the counsel for the plaintiff to move for a new trial, if he thought proper, on the grounds of misdirection. The Jury, after a very long consultation, returned at ½ past 11 that night with a verdict for the defendant, by a majority of 9 to 3. When the verdict was first returned, every one understood it to be for the plaintiff, and it was even so recorded; when His Honor told the Jury that it was necessary, pro forma, to give a shilling damages. The Jury hesitated for some minutes, no doubt considering it quite strange to give damages in a verdict for the defendant; at length, this error was explained and rectified. Had the Judge not thought of the nominal damages, the verdict would have stood directly contrary to the finding, and could not have been altered without a new trial. The trial occupied the whole day, but the evidence was wholly uninteresting, the action turned entirely upon the application of the statute of James, and the construction to be put upon the defendant’s application of 1821.

TUESDAY, March 17

Doe Dem, Lewis v. Bell.

In Ejectment.

            This was an action brought by the Executors of the late Mr. Forbes, to recover possession of certain lands on the Jordan.

Defence. - Long possession under the statute of James. Verdict for the plaintiff. Other evidence of title than the mere grants from the Crown having been adduced.

Pedder C.J., 16 March 1840

Source: True Colonist, 20 March 1840

            Doe, on the Demise of McKillop v. Lascelles. - This was an action of ejectment, brought in the name of the mortgage to turn Mr. Lascelles out of possession of the lands of Millbrook, being part of the estate of the late Dennis McCarthy, who died intestate, before any grant had issued from the crown, for that and other lands to which he was entitled by a contract with the Government. Mr. Lascelles came into possession of McCarty’s estate by marrying his widow, who had obtained letters of administration. Mr. Lascelles dealt with the estate as his own, until 1837, when the claims of an heir at law being talked of, an arrangement was made between Mr. Lascelles and the parties then interested, under which arrangement a grant was applied for by Mr. Lascelles. But while the case was in the hands of the Commissioners, Mr. Lascelles and all parties agreed that the grant should issue to Messrs. Dobson and Gregson, in trust, for all parties concerned, but as the crown will not issue grants in trust, Mr. Dobson undertook that on receiving this grant he and Mr. Gregson should execute a covenant of trusts. This never has been executed; but Mr. Dobson acted upon it, so far as to borrow a sum of money, we believe, £2000 from McKillop, on mortgage, for the purpose of relieving Mr. Lascelles, from some pressing incumbrances, and buying off the claims of McCarty’s daughter. Mr. Lascelles continued in possession of the estate, which was valued at £10,000, and which, under the arrangement, was to have been subdivided and sold in small lots, to pay off this mortgage, and other debts, and the residue to remain in the hands of the trustee, for the benefit of the parties interested. The purchase of the claim of Mr. McCarty’s daughter, was to have been partly paid in bills, at long dates, by the parties who obtained the grant, which was to have been refunded out of the estate, only a part of this consideration was ever paid to Mrs. Thomas, who is McCarty’s daughter. And Mr. Lascelles having made default in paying the stipulated rent for the Milbrook estate, Mr. Dobson acting for himself and Mr. Gregson, and we believe, for Mr. McKillop, proceeded to sell the estate, under their own absolute title, and the mortgage, and not in fulfilment of the intended trust. It was then that Mrs. Lascelles’ son, who was born during the existence of her marriage with Mr. McCarty, and in McCarty’s lifetime, put in his claim as heir at law, and being under age, applied to the court, by a friend, for an injunction, to prevent Messrs. Dobson and Gregson from selling. We know that before this injunction was applied for, Mr. Dobson was intreated to defer the sale until this young man should come of age, which he will do in three months. When the title being questioned by his joining in the conveyances, and in an equitable arrangement to indemnify all parties, as the property must be sacrificed if sold pending his minority, and any claim that he might set up when he came of age. The injunction was granted, and subsequently dissolved, on the filing of answers by Dobson and Gregson, and, before it was dissolved, an action of ejectment against Lascelles was commenced in the name of McKillop.

In this action, Mr. Lascelles defended his possession against the grant issued to Dobson, by pleading the statute 21 James I, cap. 14 - and upwards of 23 years possession out of the Crown, without any receipt of rents or profits by the Crown, - and proved a continuous possession in McCarty, and his representatives for upwards of 23 years, - on which he obtained a verdict.

The Solicitor-General was for the defence, and threw a new light which must surely relieve the scruples of the Chief Justice on the question of that Act being in force here.

Mr. Jones explained (and quoted several authorities to support his views) what was the prerogative of the Crown in respect of its claims to land by the Common Law, prior to its restrictions by the Acts of James; he quoted and explained the nature of the restrictions and limitations, of the Common Law prerogative, introduced by the several statutes of James affecting the rights of the Crown. He then shewed that every Englishman, by his birthright, who became an inhabitant of a British plantation - that is, a Colony acquired as this has been, - carried with him the Common Law of England as it exited in England when the Colony was planted. That it was different with respect to Acts of Parliament, many of which, however well fitted for the condition of an old long settled country like England, were often unfit for a new country; - therefore that the Statute Laws of England did not necessarily extend to the Colonies, unless they were especially named in the Act. That the Act by which this Colony was governed, declared that all laws passed before the date of that statute, and in force in England, should be in force here, as far as they can be applied, their applicability being decided by the Judges, where the local legislature has been silent respecting them. But that the Act in question, being a statute restricting the Common Law, was not one of that description of laws whose applicability could be at all questioned. Had this Colony been founded prior to the 21st James, then the Common Law, as our birth-right, would be in force here as it stood before these restrictions and limitations were introduced, in which case, it would have been for the Judges, under the Huskinson Act, to determine whether the statutes of limitation passed subsequent to the founding of the Colony were in force here.

But the Common Law of England, with all its limitations, as it stood in 1803, when this Colony was founded, was the law which every Englishman brought here as his birthwright, - hence the learned gentleman clearly showed that the applicability to this Colony, of the statutes, restricting the Common Law, passed before 1803, could be no more subject of question than the applicability of the Common Law itself. He then showed that the Crown could not possibly be deprived of any rights under the operation of this statute, for that it could still recover possession of its property from an intruder by a very simple process. The learned Gentleman explained the subject in the plainest possible manner, so as to render it perfectly intelligible to the meanest capacity, as was remarked to us by several of his auditors, who said that they never understood it before. The defendant having put in some correspondence to prove a confirmation to Mr. Lascelles, as the representative of McCarthy’s heirs, of the possession of the Millbrook estate.

Mr. Stephen, as counsel for the Plaintiff, contended that this was an acknowledgment of the possession in the Crown within the 20 years, by applying for that confirmation.

The Chief Justice, in summing up, drew a distinction between permissive occupation, and adverse possession, - but subsequently said, that if a continuous possession of 20 years were proved in the defendant and those under whom he claimed, without the Crown demanding and receiving rents or profits; then assuming that the statute of James I extended to this Colony, they must find a verdict for the defendant. His Honor, in the course of his address, stated that his learned colleague had in another case given his opinion that the statute did extend to the Colony, but that he (the Chief Justice) had not yet made up his mind on that point; however, under all the circumstances, he recommended that if they were satisfied that there was a continuous possession out of the Crown for 20 years, and that the Crown was also divested for that period of the rents and profits, - they should return a verdict for the defendant. The Jury were locked up for 6 hours, when at ½ past 11 at night nine out of the twelve returned a verdict for the defendant.

            We understand that there will be no farther proceedings in this case by the plaintiff, as the rights in dispute will be decided by the Chancery suit - McCarthy v. Dobson and others, - which is now pending on behalf of the young man who claims to be heir at law to McCarthy.

We consider this a most important decision, as shewing that there is some protection for the right owners of land, against the unheard of system by which the new grants are issued, - which never was more clearly illustrated than in this case, - as will more fully appear when the proceedings on the Chancery suit come to be reported.

We know that out of the circumstances connected with the claims of the heir at law, an attempt has been made to create a prejudice in the public mind, which would shut out from view the very important principles involved in the case. We have seen the bill in Chancery, and the answer, - and we are fully acquainted with the whole of the circumstances - and we know that, as far as this action goes, a very unjust prejudice has been raised against the defendant. And several of the Jury have told us since the trial, that they went into the box deeply impressed with that prejudice, - but that on hearing the evidence, it was impossible for them to return any other verdict. It was a just and honest verdict, and very important to the security of every land-owner in the Island. We know that the interests of the land owners is entirely thrown out of view in the outcry that has been raised against this upsetting of the new Grants, - to the injury of whom? Why! Of the money-lenders!!

Reserving what we have to say on the general question until next week, - we would merely state, that this case which may disturb the holders of a great deal of property belonging to McCarthy, besides the Millbrook estate; nor the claims of the plaintiff, in the Chancery suit, would never have been heard of had Mr. Dobson acted with good faith in fulfilment of the arrangement under which he was allowed to get the new grant. Nay, more, we know, that Mr. Dobson is himself a purchaser of another portion of the McCarty estate, which he obtained from Mr. Dumaresque, at one half its real value, in consequence of the known defect of title. And that it was principally with the view to quieting his own title, that Mr. Dobson entered into the arrangement for purchasing Mrs. Thomas’ interest, - and getting the grant for himself and Mr. Gregson as trustees for all parties interested. This we know to be a fact, and we defy contradiction. And it is our duty as a public Journalist to set the public right on this point, after what has been so industriously circulated by the real plaintiffs in the ejectment case.

Pedder C.J. and Montagu J., in Banco, 12 May 1840

Source: Hobart Town Advertiser, 15 May 1840

             Mr. Stephen moved for a rule to set aside the verdict in this case on the following ground:

1st. Misdirection as to the application of the statute of James.

2nd. Misdirection in the judge telling the jury that 20 years continuous possession was to be calculated back from the commencement of the action.

3rd. That the verdict was contrary to evidence, the defendant having put in application by himself to the government, requesting permission to occupy the land.

4th. That the possession proved was not continuous.

5th That it was not adverse.

Pedder C.J. and Montagu J., in Banco, 15 May 1840

Source: Hobart Town Advertiser, 22 May 1840[2]

            In consequence of the doubts existing as to the application of the statute of James, the argument on the rule for a new trial in this case was postponed till the next term.