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University of Technology Sydney Law Research Series |
Last Updated: 21 August 2017
The Court of Claims and the Resolution of Informal Land Claims in
New South Wales 1833-1835
Shaunnagh Dorsett[*]
In 1834 Bernard Williams brought a claim to 180 acres of land in Londonderry, New South Wales, to the newly established Land Claims Court. Some months later Joseph Balsover lodged a claim in opposition. Williams based his claim on being the heir-at-law to his father’s estate, while Balsover alleged that he was a purchaser for value of the same estate. At the time that Williams senior died the land had been neither selected nor formally granted. Could Williams inherit a promise to land not yet chosen? Was Balsover a purchaser for value? Should the Court – one of equity and good conscience – apply strict English principles of land law, or should it investigate the reasons why the widow had sold the land? Did it matter whether she had sold it to support Bernard, or to drink away the profits? This was the remit of the new Court: to examine claims deriving from promises to grant land by the Crown, and to determine to whom that land should be granted according to equity and good conscience. Operating from 1834 to 1922, the Court has never formally been abolished,[1] but its work has almost entirely slipped from view. Consequently, little is known about this important early New South Wales land institution.[2]
Uncertainty as to land titles was a common problem in virtually all the Australasian colonies. In New South Wales and Van Diemen’s Land, lax and informal land granting practices led to multiple claims to the same land and uncertainty as to ownership; in New Zealand purchases of land from Māori prior to the Treaty of Waitangi required a lengthy process to determine the fairness or otherwise of transactions (a process still on-going), while in South Australia land speculation and poor conveyancing practices similarly resulted in uncertain titles. In all of these colonies different solutions were implemented. South Australia famously enacted the first Torrens legislation, while New Zealand’s Land Commissions are well known. Yet the solution chosen in New South Wales (and Van Diemen’s Land) – the Land Claims Court – remains relatively underexplored. While a number of scholars have looked at the problems caused by informal land granting practices, or noted the legislative solution provided by the Land Claims Court, to date there has been no examination of the workings of this institution.[3] The Land Claims Court pre-dated the Torrens system by some 20 odd years, and was the template for the New Zealand Land Claims Commission which was established in 1840 to examine private purchases of land from Māori prior to the Treaty of Waitangi.[4] There is, of course, an obvious difference between these Courts and Torrens. They had a more restricted role: namely to determine existing ownership of land. There was no prospective element to their operations, nor did they propose a system to ensure that such uncertainty did not happen in the future. That was left to Torrens.[5] However, our understanding of early land institutions has been dominated by the success of the Torrens system to the detriment of examining institutions such as the Court of Claims – an institution which over almost a century examined over two and a half thousand titles. This article seeks to rectify that balance.
While a number of authors have laid out the ‘skeleton’ of land law in New South Wales,[6] our understanding of how early laws and policies (both Imperial and local) played out still requires additional flesh to be added. Statutes, despatches and reported cases can only take us so far and legal doctrines need to be understood in the context of their actual application. Histories of many of our institutions of early land law – such as the Court of Claims – still await writing. While Kercher has done much over the last two decades to convince us that early Australian law was not some pale reflection of its English progenitor,[7] the doctrines and principles of inherited land law were (and, to some extent, are) tenacious. As legal historians we still need to inquire further as to what purchase the fundamental principles of English land law had in the early colony of New South Wales. How innovative was our land law? What were the economic and social impacts of colonial innovation?[8] How did institutions actually work? Detailed and careful studies are beginning to answer that question. This article places another small piece in the puzzle. And in so doing it simply reminds us that the connections between colonial institutions cannot be determined from their enacting statutes, but rather must be disinterred from their day to day workings.
Part I outlines the problem of informal land laws as it has been understood. In so doing it sets a context for a later examination of the kinds of claims actually heard by the Court. Part II provides an overview of the Court of Claims, focusing on the initial period 1833-1835. While some changes were made to the jurisdiction and practice of the Court in 1835, its practice and procedure over the course of its existence was largely set in this early period. Part III looks at what kinds of claims were brought to the Court between 1834 and 1835 (the period of operation of the Land Claims Court under its original Act). It does so through a sampling of decisions, based on a random sample of one in ten extant claimant memorials and corresponding Commissioners’ reports. Part IV provides a case study. The study chosen is Williams v Balsover, an 1834 claim pitting an heir-at-law against a subsequent possessor and purchaser for value. Part V offers some very brief concluding comments.
I. The Problem of Informal titles
In both New South Wales and Van Diemen’s Land, land had since settlement been granted in a “haphazard and sometimes unconstitutional fashion”.[9] In general this informality took broadly two forms. The first was occasioned by land being acquired by settlers either on the basis of a short-term occupation right or on the basis of a promise by the Governor to later give a formal grant to the land. The second problem of informality was occasioned by the form of the grant itself. Even if a deed of grant (in fee simple) – rather than a mere promise to grant or occupation right – was made, for many years Crown grants were issued in the name of the current Governor (or even a government administrator), rather than as they should have been, namely under the public seal of the colony in the name of the King. In R v Steele (1834), Forbes CJ confirmed that the land could only be alienated by record and in the correct form:
“His Majesty by his prerogatives is enabled to dispose of the lands so vested in the Crown. It is part of the law of England, that the prerogatives, can only be exercised in a certain definite and legal manner. His Majesty can only alienate Crown lands by means of a record - that is by a grant, by letters patent, duly passed under the great seal of the Colony, according to law, and in conformity with his Majesty's instructions to the Governor.”[10]
Regardless of the type of informality, money was often spent on improvements, and land was bought, sold and mortgaged. Promises, expired occupation rights and void grants were taken in the colony to confer good title, operating as they did according to the ‘custom’ and ‘usage’ of the colony.[11] Grants were also often conditional. If the conditions were breached, the grant could be revoked, leading to the land later being granted to another person. All of this led not only to titles which would not be recognised by English land law, but to multiple titles being circulation for individual pieces of land.[12] In 1823, Governor Brisbane reported that nearly every town allotment “had been purchased from some obscure individual, who had exercised the right to sell, under an old verbal permission to occupy”.[13] Largely pointing the finger at Governor Macquarie who, he said, “had been exceedingly liberal in his promises of land”, Brisbane estimated that in 1823 some 340,000 acres were potentially the subject of unexecuted grants.[14]
In 1823, in the wake of the Bigge Report on Agriculture and Trade, Governor Brisbane, under the instruction of the Colonial Office, began the long process of attempting to formalise processes relating to the granting of land.[15] This began with a series of incremental changes to practice – the suspension of grants in fee simple in Sydney in 1823 so inquires could be made as to which lands were occupied,[16] the requirement that land be offered primarily offered by sale at a minimum upset price, although grants in free and common socage without purchase could still be made,[17] orders that the Colony be surveyed and divided into counties and parishes, the establishment of the limits or location of settlement, Darling’s 1829 Proclamation (discussed below) and the introduction of the Ripon Regulations.[18] While all of these are to some extent interconnected, they are, with the exception of the 1829 Proclamation, beyond the scope of this article. In the first half of the 1830s attempts to provide some certainty in titles culminated in two significant measures. The first, the subject of this article, was the creation of the Land Claims Court. The task of this institution was to examine competing claims to land. The second, only briefly mentioned here for completeness, was the 1836 Validation Act.[19] This Act validated the titles of “subjects holding or entitled to hold lands in New South Wales” where deeds had been incorrectly issued in any name except that of the “His Majesty or any of His Majesty’s Royal predecessors”. Thus, notwithstanding that the grants and conveyances made in the past were not in the name of the current or former Monarchs, they were deemed to be and always had been valid and effectual in law.
Three examples of the first kind or form of informality can be seen in the decisions of the New South Wales Supreme Court in R v West and R v Cooper and R v Steele. In R v West, West had received permission to occupy land near South Head Road in order to build a water mill.[20] The facts relate that in 1810 West sent a letter to Governor Macquarie for permission, and it was so endorsed on the back. West petitioned “your Excellency to grant him permission to construct a water mill on a site about a mile and a half from the township of Sydney, and lying near the South Head road; by which it is bounded on one side ... for such indulgence he will evince a lasting sense of obligation, by endeavouring to render the project as extensively useful as it may admit.” On the back of that memorial, Governor Macquarie wrote “[t]he memorialist, Thomas West, has my permission to erect a water mill to the ground specified in his memorial, with an exclusive right to the stream alluded to, and of which he will receive a lease or grant, so soon as the mill is finished - L. M.'” Even less formal was the grant in R v Cooper (1825), in which the Attorney General brought an information for intrusion to recover land near Black Wattle swamp (in the present suburb of Glebe).[21] Cooper likewise did not have a formal grant. As had West, Cooper applied by memorial. Unlike West, he received no reply from the Governor. However, an assistant surveyor came, marked out the land and, as stated by Cooper’s Counsel at trial, “put Mr. Cooper in possession, conformably to the universal practice in the Colony”. In R v Steele, Palmer had entered into possession of land in Macquarie Street, Sydney, under a short term lease. The lease had been granted to a predecessor in 1802 and had expired in 1807.[22] The land was nevertheless assigned several times and, finally, the Crown brought an information for intrusion in 1834. Prior to 1825 it was generally considered that all of these practices founded valid titles according to the custom and usage of the colony.[23]
In a series of decisions between 1825 and 1834, the New South Wales Supreme Court found a number of informal land titles invalid as against the Crown, applying established English land law rather than the custom of the colony. R v Cooper was the first of these, and it brought the informal ‘usages’ and ‘practices’ of unsealed titles to land in the colony directly before the Supreme Court.[24] Although ordered to desist by the Government Solicitor, Cooper had substantially built a distillery before the action was brought. While the Chief Justice specifically noted that “[n]o loose usages could be set up in derogation of the King's prerogative”, the jury nevertheless found as a matter of fact that Cooper had “obtained possession of the land in question, in the manner hitherto practised in the Colony”, a verdict which clearly could not stand. Forbes was not insensible to the hardship that strict adherence to the law would cause to Cooper, and suggested to Brisbane that Cooper be granted the land. He noted in passing that “I believe, with the Jury, that a very large Portion of the Town allotment, and of other valuable Lands in the Colony, are at this moment held by no other title”.[25] Similar statements can be found in R v Payne (1830) (land in Cockle Bay, sometimes called ‘Darling Harbour’) in which Payne derived his title through a number of transfers for value from the original possessor and in R v Steele (1834).
All of these cases, however, involved claims by the Crown. While they clearly demonstrate the problem of informal titles, they also draw attention away from a far bigger problem: the need to secure title, in situations where the Crown was not seeking to recover land, and where individual titles were based on informal conveyancing practices or promises of various kinds. Both, of course, involved the problem of insecurity of title. No doubt far more than those few whose cases ended up in court were removed from their land by the Crown. Defending an action was costly. However, it does not appear that the Crown had any particular interest in the large-scale re-taking of land. In cases such as those noted above the land at dispute was needed for public purposes or, for example, involved a grant of a watercourse which should similarly have been kept for public purposes. Mr Cooper was eventually granted an estate in fee simple, but subject to a reservation of the right of water to the public.[26] Mr West kept his original estate (once its boundaries had been determined) but the land onto which he had additionally encroached was taken back. The land in R v Steele was located on the public domain and in 1834 that site was determined to be the best position for the new Government House. Efforts had been made by the Crown to offer compensation before it eventually resorted to litigation. Having turned down the compensation, the assignees failed to defend their title in court and were eventually left with nothing.[27]
Both the Crown and the Supreme Court were clear that the rights of the Crown and disputes between individuals were different matters. Where the first was involved Forbes CJ was adamant that no informal practice could stand against the Crown – the cases above show that clearly. However, where individual rights were concerned Forbes CJ was less likely to overturn local customary practices. In Payne Forbes CJ noted that had this been a case between individuals he would have considered Payne had proved his title. However, as Crown lands were involved ‘he could not conceive that local custom could control it’. In one of the few cases between private individuals, Brown v Alexander, Forbes CJ was in fact prepared to give much more credence to local custom, although the matter was not finally determined.[28]
II. The Court of Claims
As a result of the ongoing lack of certainty with respect to many titles, Governor Bourke wrote to the judges of the Supreme Court in January 1833, seeking their advice.[29] This was a wide-scale problem. In 1835 Governor Bourke estimated that around 7939 titles were still at issue, around 700 having already been dealt with by the new Court.[30] The judges recommended that a tribunal be established which would act according “to equity and good conscience” and to which any evidence “whatsoever” could be given which was “entitled to moral credit”. The judges did not, however, recommend much in the way of particular detail, offering instead to prepare a draft bill. Perhaps most intriguingly, the judges noted with respect to the court which they proposed: “we find a precedent in the American colonies, where a similar difficulty appeared to have existed and to have been obviated in a similar mode”. Unfortunately they gave no indication of from where specifically they took their inspiration.
However, while the judges did not clarify the antecedents of the Court of Claims, there were, in the first decades of the nineteenth century, a number of Commissions established in various states or territories of America to adjudicate on conflicting titles which resulted from a change in sovereignty. Northwest of Ohio many settlers based their claims on British or French grants. Similarly, in Georgia and Tennessee, and as a result of the Louisiana Purchase, conflicting titles resulted from grants by Spanish, French and British authorities.[31] While ad hoc surveys and commissions were undertaken in the Northwest, in 1803 a Board of Commissioners was established to adjudicate on titles south of the State of Tennessee.[32] This was the first legislation designed to formally deal with the matter of foreign titles.[33] Two land offices were established, and board of commissioners was established for each. Each board consisted of three members. A deadline was set for making claims, all relevant documents had to be filed, the Commissioners could administer oaths and examine witnesses, and decisions were final. Where the claim was successful the board issued a certificates which were recorded in the Registry and which barred the federal government from claiming that land.[34] In an Act was passed similarly giving Commissioners powers to investigate titles in Detroit, Vincennes and Kaskaskia. In this case, however, Commissioners could not issue titles, but only recommend to Congress.[35] As will be seen, in form these approaches, respectively, are very similar to those adopted in New South Wales legislation and are the likely forebearers of the New South Wales system.
The 1833 Act provided for the establishment of a
Commission of Claims to determine in whom title to land should be vested. This
institution
was variously known as the Commissioners’ Court, the Court of
Claims (as it was denoted in the short title to the Act) or the
Commissioners’ Court of Equity (as it was often called in the press).
Claimants were to be given six months in which to lodge
their clams and the
entire process was expected to take two years (Preamble). The court was, as
recommended by the judges, one of
equity and good conscience. Thus, it was
neither a court of common law nor one of
equity,[36] and decisions were to be
made according to the more discretionary norms of ‘real justice and good
conscience’, although
such courts could apply common law or equitable
principles, or a modified version of them. Courts of equity and good conscience
were
not common in Australasia at the time. While ‘equity and good
conscience’ was most commonly associated with small debt
recovery courts,
the New South Wales Courts of Requests were not given an equity and good
conscience jurisdiction until
1842.[37] This was likely,
therefore, the first court of equity and good conscience in Australasia.
The first Commissioners were appointed on the 17 September 1833 and began hearings in early 1834.[38] The first Commissioners were Sidney Stephen (barrister, brother of the third Chief Justice of New South Wales, Alfred Stephen, and later himself puisne judge of the Supreme Court of New Zealand), Roger Therry (Commissioner of the Court of Requests, later Chairman of the Courts of Quarter Session and then Resident Judge of the Supreme Court at Port Phillip and Judge of the Supreme Court of New South Wales) and Major Thomas Mitchell, the Surveyor General. Therry and Mitchell were, therefore, examples of what were (often scathingly) referred to as ‘pluralists’: those who held more than one government appointment. These positions seem to have gone unnoticed in all biographical information on the three. Of the three, Mitchell was the most controversial as he was not legally trained, a matter commented on by the press.
Claims were initiated by lodging a Memorial. This included information such as the description of the land, details of the first possessor and how he or she derived that possession, names of witnesses and a list of supporting evidence. The matter was then advertised in the Government Gazette (which was generally reproduced in the Sydney Gazette and New South Wales Advertiser) in order that any claimant in opposition could come forward and lodge a counter-claim within 3 months. Failure to do so led to any “claims and pretensions” being ‘barred and extinguished’ (s 12). Where contested, each case was allocated a court date, supporting documentation was produced, sworn evidence was taken, a draft report and a final report were prepared and the final report was sent to the Governor.[39] In its formulation the Act gave primacy to actual possession and occupation. Where a case was uncontested, or no counterclaim was lodged within 3 months, and good possession could be shown, the original claimant would succeed (s 12). Where there was a contested claim, 10 years peaceable and uninterrupted possession derived from a written title itself derived from a licence or authority by the Governor promising would found good title and where the possession was only derived from the initial promise with no licence or authority 20 years would found good title (s 12). This was so “any law custom or usage in anywise to the contrary notwithstanding”.
The process was initially meant to be a short one. A deadline of 5 May 1834 was set for the lodging of memorials. Those opposing had an additional three months to lodge.[40] The Court of Claims held its final sitting on 13 November 1835.[41] However, the amount of work still to be done led to the re-enactment of the Court as a Commission in 1835, albeit with a modified jurisdiction. In May 1836, new Commissioners were appointed. Under the new Act it was made clear that the Commissioners were to examine and report only upon claims referred to the by the Governor, rather than claimants directly addressing their claims to the Court itself (s 3).[42] This was probably the most significant procedural change. As with the original Court, nothing compelled the Governor to deliver any deed of grant as a result of a recommendation by the Commission (s 4). It was still a court of equity and good conscience. The most significant change was probably the removal the provisions in the first Act relating to possession, although the reason for this remains unclear.
Between 1833 and 1922 approximately 2519 memorials were lodged with the Court / Commission of Claims. While this is not as high as the number of insecure titles estimated by Bourke, it is nevertheless a not inconsiderable number. In the period on which this article focuses – 1833-1835 – 970 were lodged with the Court of Claims.[43] Thus, by far the bulk of claims were made in the first two years of the court’s operation. The number of claims lessened over the century, so that ultimately between 1902 and 1922, when the Court seems to have fallen into desuetude, only 13 claims were lodged.[44] Relying on the numbers of memorials lodged can, however, be misleading as to the work before the Commissioners. Some of the memorials lodged were in fact lodged in opposition to claims. For example, in February 1834 John Barnett (or Bernard) Williams lodged two claims (Memorial or case 52 and 53) for confirmation of his title to a total of 180 acres of land in Londonderry. A grant to both had been originally promised to his father, Bernard Williams, by Governor Macquarie. On 1834 Joseph Balsover lodged Memorial 242 in opposition to Williams’ Memorial No. 52 and Memorial no. 243 in opposition to Williams No. 53.[45] Not all memorials were opposed. Many were lodged by the claimant simply in order to ensure he or she had clear title. By September 1836 the Australian reported that some 513 deeds had been signed by the Governor based on around 900 recommendations by the Commissioners of Claims.[46] Notably, from 1835 advertisements for the sale of land in the Sydney region began to appear with the note that they were ‘first class titles’, as they had been through the Commissioners’ Court.[47]
The high number of claims that were lodged before the Court in the first period may owe something to the advertising of the agent/advocates who appeared before the Court. Although the Court did not require lawyers, or even representation, within a short time of its commencement a number of persons offered themselves through newspaper advertisements to the community as willing to act as agents or advocates before the Court. Probably the most high profile of these were Mr Nathaniel Lipscombe Kentish and the Rev. Ralph Mansfield. Some claimants also engaged lawyers. As the deadline for lodging of memorials approached in 1834 Mr Kentish took out extensive advertisements in the Press, noting the dire consequences for any person with land who did not obtain clear title from the Court, while Rev Mansfield wrote to the Commissioners recommending that a circular be dropped at “every door in the colony”.[48] Mr Kentish proclaimed in his advertisement that if claimants missed the deadline they could not apply in future. As a result “ruin would befall hundreds”. He warned all landowners in New South Wales that “[y]ourself or your heirs would have bitter cause to lament your negligence and parsimony”. He finished with the statement that henceforth a deed of grant from the Court would be the only source of good title.[49] Such advertising seems to have been successful. Just after the May deadline Mansfield was forced to note his regret that he had been forced to reject “hundreds of claims” which had received due to the number being so great.[50] When the court was re-enacted in slightly different terms in 1835 it was specified that claimants must be represented (by themselves or otherwise) and the new Commissioners quickly specified that only ‘Professional men’ might appear, thereby excluding agents such as Kentish and Mansfield.[51] From this time it became standard practice for lawyers to appear.
III. An Overview of Claims before the Court
So what were the bases of claims made to the Court? What kinds of matters did they hear? The data in this section is based on random sampling. A sample was taken of every tenth extant file in the Commissioner’s Reports (nos. 1-970). Given the gaps in the records, and the occasional file which could not be read at all, this resulted in a sample of 77 files. The gaps result from a combination of lost files, the frequent integration of opposition memorials into claim memorials (thereby removing them from the list) and memorials extracted in later decades and moved to later files. A final potential basis for the gaps was the Commissioner’s jurisdiction under s 11 of the Act to dismiss cases which they believed “unfounded and which had no chance of success”. In these circumstances, the Act states that the documents should be returned to the claimants. That such claims were removed might be supported by the very high success rate of claimants (a number which might be lower if those claims with no chance of success were retained in the files). There were also files which were partly illegible or which had crucial documents missing, although where possible these were included in the sample. The files range from extremely brief (a few lines relating the decision) to lengthy (several page decision supported by upwards of 50 pages of evidence) and many relied on extensive oral and written testimony. However, few original documents remain in the files, making it difficult to see, for example, the form of the original promise. Originals were generally returned to the parties at the conclusion of the case.
According to the preamble, under the Act the Commissioners had jurisdiction to hear matters relating to possession based on promises of grants. Soon after the establishment of the Court, the Colonial Secretary confirmed that ‘grants’ did not include ‘purchases’. Hence, any land actually purchased from the Crown was excluded from their jurisdiction.[52] Further, in any uncontested case where the claimant actually possessed the land under a licence or authority derived from any Governor, and that licence had been given to the claimant personally, that claimant could by-pass the Commission and apply directly to the Governor for a grant (s 6). According to the samples taken, claims before the Court in this period broadly fitted into one of three (overlapping) categories: first, claims based on, or which would be eligible for grants under, Darling’s 1829 Proclamation; second, promises of grants; third, peaceable and uninterrupted possession of 10 or 20 years.
The first category was claims which were based on, or would have been eligible for a grant under, Darling’s 1829 Proclamation. Darling’s Proclamation was probably the most systematic effort to sort out informal titles prior to the creation of the Court. In Sydney there was a scarcity of township allotments and the owners of many allotments could not be identified. Some initial land holders had died, some had left the colony, and some allotments had multiple claimants. Few allotments were held in fee simple as in 1823 Governor Brisbane had, in an attempt to curb bad land practices, suspended the grant of estates in fee simple in Sydney, allowing only short term leases and other occupation rights. Thus in 1829, Governor Darling gave those who had leases or rights of occupancy to land in townships prior to 30 June 1823 the right to apply for a grant of land in fee simple.[53] Land which was required for public purposes, or had been previously alienated, was exempt. Unlike the later Court of Claims process this was not primarily a claimant driven process. Rather, the Crown advertised parcels, naming the person to whom they believed the deed of grant for each allotment should be issued, and giving anyone who objected to a grant being issued to the named owners one month to lodge a caveat.[54] If a caveat was lodged by a person claiming instead to be the bona fide owners, the lot was readvertised, similarly giving the originally named claimant a period in which to lodge their own caveat. A report was prepared by the Surveyor General’s office – not just describing the land, but reporting on who was in possession and possibly as to improvements made. A final decision was made by the Governor. Where the land could not be granted (for example because it was set aside for public purposes, or to grant it would contravene regulations requiring that land to be put up for sale) an alternative allotment was often proposed.[55]
In late 1833 contested claims to allotments which had been advertised under the 1829 Proclamation were transferred to the Court of Claims.[56] Many of the briefest Commissioner’s Reports simply note that the holder (or more commonly a predecessor in title) would be entitled to a determination under the 1829 Proclamation and therefore should succeed before the court. This shows a clear relationship between the two processes which has not been clear until now. The claimant was required to prove that he or she or a predecessor was in possession in June 1830, as well as the subsequent transfers by which the claimant took title. The majority of these claims were based on an unspecified right of occupancy. Relying on the Proclamation largely obviated the need to inquire as to the actual origins of the title or show the original ‘promise’. Further, the transfers themselves were frequently not compliant with formal conveyance practices. It is with regard to this matter – the informality of conveyancing practices – that the Court’s jurisdiction in equity and good conscience was vital. Claims were frequently based on transfers that would not have been recognised as valid by the Supreme Court.
Of the 77 sampled cases, at least 24 were based on the 1829 Proclamation. An example is Memorial 549, that of Robert Murray. In this case Robert Murray was said to have derived title by way of “several mesne conveyances”. In June 1823 the allotment was occupied by Mary Liverton. Murray subsequently purchased the allotment at public auction from Samuel Liverton, heir at law to Mary Liverton. Robert Murrary’s successful claim was based on a right of occupancy in June 1823, entitling him to a deed of grant under Darling’s 1829 Proclamation.[57] One Hayward claimed an allotment under Memorial 402. Having been formerly found to be entitled to a grant under the Proclamation, Hayward’s deed of grant had been prepared, but contained a spelling error. On asking for this to be corrected his case was referred to the Commission before whom he was required to prove his chain of title back to the person in possession in June 1823.[58] In Memorial 83, Allen obtained land by indenture of lease and release in consideration of 500 pounds. The land was a portion of a larger lot which had been leased to one Wallis in 1819 for 21 years. The Commissioners noted that Allen was in possession and thus the land was “virtually promised by Governor Darling’s Proclamation of 1829”.[59]
The second category is those where the claim was based on some form of promise. In this category the claimant was typically a successor-in-title. Claims were mostly based on a conveyance of some kind (often an indenture of lease and release, a registered deed of transfer, or an assignment) and occasionally based on inheritance (or both). Again, these conveyances frequently did not comply with required formalities. The Commissioners often focused on the subsequent transactions, rather than the original promise. Given this, and the fact that the original documents were returned, it can often be quite difficult to discern the form of that original promise. There was also a significant overlap with the first category: claims eligible under the 1829 Proclamation. The claimant was required to prove each step in the chain of title. An example of this is Memorial No. 239, Edward Cox.[60] One Parmeter was promised land by Macquarie in 1821. The form of the promise is not clear, although the Surveyor’s report notes that Macquarie’s “Order” was “recorded”. According to the list of documents appended to the claim, the recording of the order would originally have been available to the Court in order to prove the promise. Cox had been conveyed the land “many years since” by Parmeter. As the documents had been lost, Parmeter conveyed the land for a second time. In a number of cases the land is said to have been “charted” to the claimant. This is much the same as the basis of the plaintiff’s claim in R v Cooper. The land had been surveyed, the land had been recorded in the name of the claimant with the office of the Surveyor-General, but no deed of grant had been issued. Thus, in Memorial 855 two acres in the County of Cumberland was claimed by William Bowman. The land had originally been charted to William Virgin in the Surveyor Generals office through the agency of one William Cox. The land was sold in 1826 to Myham, who sold by lease and release to Bowman.[61] Land was similarly charted to the first possessor in the case of Wentworth and Antill as trustees for Sarah Redfern (Memorial 697).[62] Other promises included Memorial 829 (that of the same William Bowman) where one Parker was put into possession by the unspecified “authority and sanction” of Governor Macquarie or where the original possessor came into that possession by way of a short term lease, for example Memorial 94 (short term lease to Beams in 1810).[63] However, in many of the memorials in this category the form of the promise simply cannot be discerned from the files.
Perhaps most interestingly title in many memorials sampled derives from some form of promise not, as might be expected, made in the Macquarie era, but later, in the Governorship of Brisbane or even Darling. Despite the general attempts to minimise uncertain titles post 1823, promises, rather than actual grants of any kind, were still made. For example, under Brisbane’s Regulations for the Granting and Sale of Land (1826), once settlers had proved they had sufficient capital, and made a selection, they were to be given a “written authority to take possession... until His Majesty’s Pleasure be known or the grant made out”.[64] In Memorial No. 3, in which the claim is based on an 1824 letter entitling entitling one Milton to obtain possession of land in Darling Harbour by lease. In this case the Commissioners concluded that the promise by letter, along with a survey and continued possession constituted a fair and equitable title on the part of the memorialists.[65] In Memorial 55 land was promised in 1825 to one Metcalf, subject to a quit rent, while in 1830 William O’Donnell was promised but never given a 7 year lease promised by Brisbane (Memorial 164).[66] Around 50% of the claims derive from some promise or grant in the Macquarie period, the rest being split between Darling, Brisbane and those in which a time period cannot be discerned from the files.
The third category is that in which the claimant could show good possession of 10 or 20 years (under s 12 of the Act). Again, this category had significant overlap with the previous two. In particular, where the claimant had been in possession for upwards of 20 years they would also have had a claim based on occupation under the 1829 Proclamation. Thus, while ten of the 77 cases clearly fit into this category it is likely that quite a number more could have, but were in fact determined by reference to the 1829 Proclamation. The Court did not always refer to both, often defaulting to the Proclamation. As in the first category, proving title based on possession largely obviated the need for investigation of how the original possessor actually came into possession of the land, ie of the form of the promise. A typical example of this category is Ann Wilson’s claim in Memorial 391. She claimed just under 24 perches in York Street, Sydney, and was determined to have a claim based on both 20 years peaceable and uninterrupted possession and having been in occupation in June 1823.[67] The decision provided no further details, although three witnesses were called to provide evidence of her possession. Similarly, Samuel Thompson had a valid claim to “all that messuage or tenement known as the ‘Edinburgh Castle’” in Princes Street, Sydney, based on both peaceable and uninterrupted possession and the Proclamation.[68] Thompson derived his claim from his wife, who had been devised the allotment. Overall, in order to prove his claim he relied on the possession of three earlier owners (including his wife), thereby adding together periods of possession in a similar manner to that which can found an adverse possession claim at common law.
What is perhaps most surprising about these claims is that out of the 78, only 14 were opposed. This suggests that while informal granting and conveyancing practices in the early period did lead to uncertainty of title, they did not necessarily, or even often, lead to multiple conflicting titles. If that were so, one would expect to find a higher number of opposed memorials. Of the opposed claims, few were based on the kind of complicated conflicting titles that might have been expected. One example of conflicting titles is Memorial 3, opposed by Memorial 165.[69] In this case Thompson claimed land in Darling Harbour. His claim was based on a complicated series of transactions dating back to 1824. In that year one Minton obtained a letter from Governor Darling entitling him to a lease to land in Darling Harbour. The land was first to be surveyed, which did not happen until 1828. In the intervening time, Milton died, and his widow remarried Murray. He also died, and she subsequently married yet again. Her new husband, Thompson, was the claimant. The claim was opposed by Holt and Cooper, Cooper being the surviving partner of a London firm of Merchants, Cooper and Levy. Holt was their local agent. Cooper claimed to be the heir-at-law of Levy. The opposition claim was based on an entirely alternative chain of title, deriving from Cooley, a soldier of the New South Wales Corp. The land was promised to him by Governor King, but later given to Charleton, also of the Corp. Charlton gave the land as a marriage portion to his daughter, who sold the land to Dempsey in 1814. It was then sold to Meehan in 1816, and his son granted Cooper and Levy a 999 year lease in 1831. The lease was registered with the Supreme Court. While Cooper claimed to be in actual possession, Thompson had in fact successfully brought an action in trespass against Cooper’s alleged employee, Balford, some two years earlier for destruction of buildings on the land. Exercising their jurisdiction in equity and good conscience the Commissioners decided that the trespass action was not determinative of possession and investigated further. The Commissioners eventually awarded the title to Thompson, based on his actual possession. It is only in these kinds of claims that one can see the Commission resorting to principles of land law or, for that matter, invoking their jurisdiction of equity and good conscience. Dower, coverture, curtsey, the equity of redemption, the position of heirs-at-law, the ‘custom of London’ and equitable titles all get a mention in the files. However, this is not the main, or even a significant proportion of, the work of the Commission and to focus on these cases would be to misrepresent their day to day dealings. Several of these principles were, however, at issue in the case study in Part IV, below.
Finally, given the high number of unopposed claims it is perhaps not surprising that out of the 77 memorials sampled at least 63 claimants received a recommendation that they be issued a deed of grant. Four claims have insufficient documents from which success or otherwise can be determined (Memorials 42, 538, 615, 686). Only one unopposed memorialist was unsuccessful, due to lack of proof of the original promise (Memorial 207). In four cases the opposition memorialist was successful (Memorials 115, 715, 763, 872). Memorialist 495 withdrew his claim in the face of a stronger claim. Memorial 260 succeeded but it was later found that the land was exempt from claim under the 1829 Proclamation. Memorialists 332, 625 and 676 were held to be trustees for others.[70]
IV. Williams v Balsover: A Case Study
On 11 June 1834 the Sydney Monitor reported proceedings in Williams v Balsover, sarcastically entitling the piece “The Working of Our Famous Court of Claims to Land”.[71] After describing the arguments in Williams v Bolsover, the editor, Edward Smith Hall, noted that high hopes had been had for the new court – it was to be a cheap, simple, final arbitration between parties who had been promised land. But in his view it had, instead, become an expensive, slow process of litigation, which not only adjudicated existing dispute but actually caused disputes, claiming that “[t]his is evidently a case which the new Act has created or caused to come. This is a case which the new Act has been the means of bringing into existence”. For Smith Hall if cases such as Williams v Balsover could proceed then “all land which has at any time passed from the original promisee becomes shaken”.
While a number of cases before the Court were reported in the press, Williams v Balsover probably created the most comment, and provides a useful case study. While the editor of the Monitor was incensed about this kind of case being possible, the Herald’s less vitriolic report of noted that its interest lay primarily in “similarity to many others of a like nature”.[72] This likely true of the opposed cases, although as noted earlier only a small proportion were opposed. Williams v Balsover is, however, one of the few cases in which the court articulated any of the bases for its decision-making, and one of the few in which it refers to its jurisdiction in equity and good conscience. It is only in the context of opposed claims that any questions of law or procedure arise were addressed by the Court.
As heir-at-law Williams claimed 2 titles, totaling around 180 acres of land, in Londonderry. The claims were both based on promises made to his father by Governor Macquarie. The claims were opposed by Balsover who had purchased the titles from William’s mother in 1821. The first case, memorial No. 52, came before the Court on 4 June 1834, was partly heard on that day and held over to the 16th for judgment. Williams was represented by Mr Mansfield, while Balsover opted for the solicitor George Nichols (as an aside, the first Australian born person to be admitted as a solicitor).[73] As noted, criticisms of the court included its slowness and cost. In fact Williams seems to be one of a the very few cases in this period to be heard over more than one day and in which judgment was not rendered immediately. Williams initial memorials were lodged on 25 April 1834 and the decision was handed down on 16 June. William’s deed of grant was executed on 15 August.[74] Smith Hall was not the only one to think the court slow or expensive. Other editors concurred.[75] The Court’s fees were listed in Schedule C to the both the Act of 1833 and of 1835. From from Mr Kentish’s extensive advertising it seems that the usual cost of a claim before the Court was around £6.[76] Most of that were fees to the court, not the cost of representation. That the fees were high is implicitly acknowledged by the initial title of the bill passed to re-enact the Court in 1835: An Act to Amend the Court of Claims Act, by Reducing the Fees and Increasing the Salary of the Secretary.[77] The high cost of attending the court was attributable to the fact that it was meant to be funded entirely from fees.[78] Nevertheless, the number of matters for which a fee had to be paid was substantially reduced in 1835. Fees at this time were significantly lower in the Supreme Court, most being the cost of representation rather than fees for the Court progress and hear the claim. And, of course, at the Supreme Court costs could be awarded.[79]
Mr Williams Snr had been promised land by letter from Governor Macquarie on 31 March 1821 and died intestate on 22 April 1822, leaving his 5 year old son, Bernard Williams, his heir-at-law.[80] Evidence suggested that the deed promised was always to have been made out in the name of Bernard Williams, rather than that of his father. At trial it was accepted that the land had not been selected at the time of Williams Snr’s death. It had apparently been Macquarie’s practice to grant small farms to children born in the colonies (although in this case a ‘small farm’ was in fact around 100 acres). On 6 May 1822 Williams’ widow received letters of administration. At the time of the decision Bernard was barely 17. Bernard Williams therefore based his claim on the promise from Macquarie. In reply, Balsover stated that at the time of William’s death title was not only based on a promise, but the land had not even been selected. He (Balsover) had in fact subsequently selected the land on Bernard’s behalf. He then purchased the land from the widow for £40. The sale was by deed, to which the widow “affixed her mark” in the presence of only one witness, Balsover’s son. Bernard had never been in possession.
The determination noted that had these been the only facts, the Court would most likely have found for the heir-at-law as he had the best legal entitlement. The selection was, after all, based on a pre-existing promise and it was from that promise that Bernard derived his claim. However they also noted that they were “not tied down to decide in favour of a legal title”. This was presumably a reference to their jurisdiction being one of equity and good conscience. They therefore received evidence of the reasons for the sale to see if it were for the benefit of Bernard and his siblings or necessary for the payment of debts. Further, the Court helpfully explained that its usual practice was to look to current possession “as furnishing a good criterion of the opinion that the parties themselves have formed of the validity of their Title...”.
All documents required to prove the various claims were lodged with the court, amongst them the Notices of Birth and Baptism, Register of Burials at St Phillip’s Church, Gazette Notices, the Letters of Administration, the assignment of the land from Mrs Williams to Balsover and papers to ‘prove’ that Williams was in debt at the time of his death, necessitating the sale to Balsover. The Court also took sworn evidence as to both Williams Snr and Balsover’s assets and Mrs Williams’s circumstances. They did not, however, as in keeping with their jurisdiction, strictly enforce the rules of evidence, allowing interested parties to testify. The decision found that Mrs Williams kept a public house, was an alcoholic and placed the children in an orphanage. It seems Balsover was friends with the deceased – they had been shipmates – and Balsover had taken in one of the children.[81] Judgment had been obtained by one Mr Cooper against Williams for £550, but he had paid most of it off and the debt was not, according to the court, “ruinous” for Williams. At his death Williams had also owned some houses down near the Customs House. He did not, therefore, according to the court leave Mrs Williams in dire straits. Thus, the court concluded, Mrs Williams did not sell the land for her children’s welfare, but needed the money to maintain her drinking. It was further mentioned in the newspapers that she had in fact sent the children to an Orphan school, where they remained for some time.[82] As a result it was determined that the evidence did not show any such necessity so as to justify the setting aside of clear legal title. In fact, according to the determination, in buying the land Balsover must have known that he was aiding Mrs Williams to injure herself. Further, while Balsover was in possession, he had made no improvements, the land merely lay adjacent to his.
Importantly, for his part Bernard had never acquiesced to Balsover’s possession, always maintaining the land was his. In 1831 Bernard’s land had been advertised under the remit of the 1829 Proclamation.[83] Balosver had lodged a caveat. The land was readvertised in Balsover’s name in 1833.[84] Williams in turn lodged a caveat. The judgment made much of the fact that Williams had asserted his rights to the land despite being only 14 years old. Regardless, in 1833 Balsover was granted the land as representative for Williams. It was not until 1840 that the grant was revoked, on the advice of Kinchela, the Crown Solicitor, as having been issued in error.
Despite the single judgment or report, its members were not unanimous in their decision. This seems to have been unusual and was certainly the only such case in the sampled reports. Decisions were required to be by majority. The Court noted it was divided, but gave little information. Hall Smith (or one of his reporters) had, however, been in court that day. He reported in the Monitor that Stephen and Mitchell had found for Williams and Therry had dissented. However the report suggests that only Stephen was convinced. Mitchell had been persuaded to follow Stephen.[85] The final determination stated that there was “no equitable case made out by the said Joseph Balsover to overthrow [the right in law].” There were no references to legal doctrine or precedent (as there did not need to be in a court of equity and good conscience) – but perhaps what this meant was that while Balsover was a purchaser for value, it was considered that he was neither bona fide nor without notice.
The Monitor kept up its tirade against the new Act and the decision in Williams v Balsover. The Editor took Balsover’s side. Had Mrs Williams in fact had sold the land to bring up her family as Balsover alleged, among them “little Barny Williams, our doughty heir-at-law”. Had she not put the “pap and mutton chops ... into little Barny’s mouth he would never have become heir”. The editor was scandalized that the heir-at-law could be seen in any case as entitled to inherit a promise and saw it as evidence that the new Act was dragging “feudal law and other specimens of “the wisdom of our ancestors” into the question”. How in any case could an heir-at-law inherit a promise: “...[w]hat fudge it is to claver in Botany Bay about the rights of heirs-at-law, if inheritors of promises only!”.[86] While Smith Hall’s opinion was delivered before that of the court, and in absence of having seen the documents, he was unrepentant when the decision was handed down. The Commissioners in turn took the opportunity to reprimand Smith Hall for his ‘impertinence’, noting it was a misdemeanour to write such an article. Smith Hall was unabashed.[87]
The matter, however, was not necessarily over. While the Court was to hear the matter, the Governor was not bound to accept its recommendation (1833 Act, s 7). This was a facet of the process which may not have been clear to the participants. In handing down the decision in Williams v Balsover, Therry noted that all parties would see the report before it went to the Governor and could make suggestions that they think proper: “we are little more than a board of advice to the Governor”. Nichols, solicitor for Balsover, was astonished, apparently asking if, after all the expense and time, the Court’s decision was worthless?[88] Therry himself wrote to the Colonial Secretary recording his dissent. He was prompted by a concern that “great injury” would occur if the Court were to overturn long and established possession, such as that of Mr Balsover, except on “strong grounds, supported by conscientious and equitable considerations”. This had not been the case in his opinion in Williams v Balsover. Bernard’s promise to unselected land should not trump possession. Such a promise should not be seen as ‘inheritable property’ although Therry noted that at the time “land was invariably considered and dealt with as a chattel property”. A number of cases in which recommendations had been made by the Court lingered thereafter.
Williams’ other claim – Memorial 53 – proceeded on the same basis as No. 52, the only variation in facts being that the land had been promised to his father and had already been selected at the time it was sold to Balsover for £20. In the Commissioners’ opinion the heir-at-law would succeed in an action for ejectment, and hence his claim was to be given priority. The Commissioners noted that there was no equitable case to be made, again suggesting perhaps that had Balsover been a bona fide purchaser for value without notice he may have succeeded. It is unclear with respect to this second claim whether the Commissioners were similarly split as the had been with respect to Memorial 52. Of course a jurisdiction of equity and good conscience did not require such attention to be paid to English land law – quite the opposite. Yet only Therry seemed prepared to take the idea of such a jurisdiction seriously. He apparently accepted, as had Smith Hall, that the land had to be sold to pay debt - in any case no one proved that Mrs Williams had spent the money on alcohol - and was further swayed by the fact that Balsover was a purchaser for consideration.
That the outcome of Williams v Balsover was effectively determined by Balsover’s status as a bona fide purchaser, or otherwise, was confirmed by the next meeting of the Balsovers and the Williams in the Court of Claims. Some short time later Memorial 115 came before the Court. This time Thomas Balsover (Memorial 115), son of Joseph Balsover, claimed land, and was opposed by 573 (Davies) and 898 (Williams).[89] Prior to 1820 Balsover Snr bought land from Mannix, which he sold to Bernard William’s father. After the widow obtained letters of administration she sold the land to Davis in 1823 by endorsement on the deed of transfer from Mannix to Balsover. Davis remained in possession under 1833 when Balsover built a house on the land. Davis brought an action for trespass but it did not proceed, the Commissioners suggesting this was because the several transfers by which Davis obtained the land would not be sufficient in a court of law to obtain legal title. Thomas Balsover claims by deed of assignment from Balsover Snr. The Commissioners held that Balsover should not have made the assignment and implied that he had not acted entirely honestly. This left the matter to be determined as between Williams and Davis, the other two claimants. They awarded the land to Davis, not Williams. The main ground on which this decision was based were that at the time of the sale the administratrix was entitled to dispose of the property as it was personal and, following this, David would be entitled to a grant under the Proclamation of 1829. However, crucially, they also noted that Mrs Williams had sold the property to waste it in drink to the detriment of the third claimant, the heir at law. This time Therry did not dissent. However, importantly, unlike Balsover, Davis was not aware of any of these facts.[90]
IV. Concluding Comments: Equity and Good Conscience
Given what we already knew about informal land practices it might have been expected that the reports of the Commissioners would have revealed somewhat different data. One might have expected, for example, to see more opposed claims, based on conflicting titles. Perhaps a higher percentage of claims might have been thought to have derived from the Macquarie period, given he is usually credited (not least by his successor, Governor Brisbane) with creating much of the confusion in titles which faced successive Governors. And until now the relationship between the 1829 Proclamation and the work of the Court of Claims was unclear. Perhaps also unexpected, and beyond the scope of this article, was the number of women who appeared before the Court in some capacity. This article, therefore, raises as many questions as it answers. Did the pattern of claims established between 1833-1835 continue in the subsequent work of the Court? Why was the jurisdiction of the Court changed in 1835? More work could be done on the position of women before the Court, and the way in which the Court used traditional English land law principles requires further examination. Any such study as this can only scratch the surface of the complexity that characterized our early land holding systems. However, it does clearly show the importance of studying the actual workings of our early institutions, rather than relying on an understanding based on legal doctrine and statute.
.
[*] Professor of Law, Faculty of Law, University of Technology, Sydney. My thanks to Stuart Banner, Peter Moore, Alecia Simmonds and, as always, Bruce Kercher and Brent Salter at the Colonial Case Law project. Some cases will be referenced to this site:
<www.law.mq.edu.au/research/colonial_case_law/>
[1] For current provisions see Part 2 of the Conveyancing and Law of Property Act 1898 (NSW).
[2] An Act for Appointing and Empowering Commissioners to Examine and Report upon Claims to Land under the Great Seal of the Colony of New South Wales, 5 Wm IV No. 21 (1835) (NSW) [1835 Act], in turn incorporating an earlier Act of the same name: 4 Wm IV No. 9 (1833) (NSW) [1833 Act]. Similar legislation was also passed in Van Diemen’s Land: An Act For The Settlement Of Claims To Grants Of Land And For Other Purposes Relating Thereto 6 Will IV No. 11 (1835) (VDL). These Acts all have later minor amending acts.
[3] Campbell E, “Promises of Land from the Crown: Some Questions of Equity in Colonial Australia” [1994] UTasLawRw 1; (1994) 13 U Tas LR 1. This work largely examines informal titles, the provisions of the enacting legislation and interaction with the Supreme Court. Written in an earlier era, it relies only on reported and published sources. See also the very brief description in Castles A, An Australian Legal History (The Law Book Company, Sydney, 1982) p 215. In other works on the history of land law, such as Buck AR, The Making of Australian Property Law (Federation Press, Annandale, 2006), the Court of Claims has passed largely unremarked. On the Tasmanian equivalent – known as the Caveat Board – see Snell R, “The Caveat Board: An Overview of a Key Colonial Tribunal 1835-1859” (1995) 42 Tasmanian Historical Research Association 192.
[4] An Act to Empower the Governor of New South Wales to appoint Commissioners with certain Powers to Examine Report on Claims to Grants of Land in New Zealand 4 Vict. No 7 (1840) (NSW), replaced by New South Wales Act 4 Vict No 7 Repealed Act 4 Vict. No 2 (1841) (NZ). For Gipps instructions to the Attorney-General to draft a bill for New Zealand based on the 1835 NSW Act see Memo, Gipps, 27 February 1840, State Records New South Wales (SRNSW), NRS 909, 4/1017, pp 1-4.
[5] Much has been written on the establishment of the Torrens system, as examples see Pike D, “Introduction of the Real Property Act in South Australia” [1962] AdelLawRw 2; (1961) 1 Adelaide Law Review 269; Lucke H, “Ulrich Hubbe and the Torrens System: Hubbe’s Background, his Life in Australia and his Contribution to the Development of the Torrens System” (2009) 30 Adelaide Law Review 215 for just two.
[6] See, for example, the authors listed above at n 3.
[7] Kerchers interventions are too numerous to list. But see most famously An Unruly Child: A History of Law in Australia (Allen & Unwin, St Leonards, 1995).
[8] In fact, economic historians have in some areas gone further than legal historians in providing contextualized histories of property institutions. See, for example, Decker D, “The Legal and Economic History of the Lien on Wool and Stock Mortgage Act 1843 (NSW) – A Case Study on the Significance of Property Law for Understanding Economic Development” (2008) 12 Legal History 151; and Harris E, “A Preliminary Examination of the Effect of Credit Instruments on de facto and de jure Political Power: Lien Laws in Postbellum United States and Nineteenth Century New South Wales, Australia”, (2013) Discussion Paper No. 2013-06, Centre for Economic History, ANU.
[9] Castles, n 3, p 215; For a more detailed description of how informal titles arose see Campbell “Some Promises”, above n 3; Kercher, B and Young J, “Formal and Informal Law in Two New Lands: Land Law in Newfoundland and New South Wales under Francis Forbes” in English C (ed), Essays in the History of Canadian Law: Volume IX: Two Islands, Newfoundland and Prince Edward Island (University of Toronto Press, Toronto, 2005) p 147; Kercher B, “Informal Land Titles: Snowdon v Baker (1844)”, (2010) 41 VUWLR 605.
[10] R v Steele [1834] 1 Legge 117; [1834] NSWSupC 11 (28 October 1834, Supreme Court of New South Wales per Forbes CJ, Dowling and Burton JJ), reported in the Sydney Herald (Sydney, 20 October 1834). The preferable report is that of the Colonial Case Law project at Macquarie University, see above n 1 (accessed 31 January 2014). Currey gives an account of R v Steele in Currey CH, Sir Francis Forbes: the First Chief Justice of the Supreme Court of New South Wales (Angus & Robertson, Sydney, 1968) pp 464-467.
[11] R v Steele, n 10; Kercher and Young, n 9; Kercher n 9; Campbell n 3.
[12] Kercher, n 9, pp 612-13.
[13] Brisbane to Bathurst, 3 September 1823, Historical Records of Australia, Series 1, Vol XI, Frederick Watson (ed) (Sydney, Committee of the Commonwealth Parliament, 1914-1925), p 121 (hereafter cited to volume and page number).
[14] Brisbane to Bathurst, 10 April 1822, HRA, Series I, Vol X, p 630.
[15] J.T. Bigge Report of the Commissioner of Inquiry into the State of Agriculture and Trade in New South Wales, British Parliamentary Papers 1823 X (136), p 607.
[16] See Campbell, n 3, p 6.
[17] Bathurst to Brisbane, 1 January 1825, HRA, Series I, Vol XI, p. 441. See Government Order 5 September 1826, enclosure No 3 in Darling to Bathurst, 5 September 1826, HRA, Series I, Vol XII, p 539 and reproduced in the Sydney Gazette and New South Wales Advertiser, 6 September 1826, p 1. See also Campbell, n 3, pp 3-4.
[18] The so-called ‘Ripon Regulations’ were introduced in 1831. The regulations saw the abolition of free grants and the introduction of restrictive land sales. Lands were required to be advertised and auctioned at a relatively high upset price of 5 shillings an acre. Part of this purchase price was to be set aside to assist immigration of primarily agricultural workers from Britain. See Government Notice, 1 July 1831, Copies of orders, notices, proclamations and circulars relative to the promising, granting and purchasing of lands 1810-1837, SRNSW, NRS 2692, 7/1523, fol. 36, and 1 August 1831, ibid, fol. 37, and August 25 1831, ibid, fol. 40. See, for example, Burroughs P, “Wakefield and the Ripon Land Regulations of 1831) (1965) 44 Historical Studies 452.
[19] An Act to remove doubts concerning the validity of grants in New South Wales 6 Wm IV No. 16 (1836) (NSW). On this see See Forbes Papers, Mitchell Library, A 1213 (reel CY 607), pp 207-217. For comment see Currey, n 11, pp 482-484; Glenelg to Bourke, 30 September 1835, HRA, Series 1, Vol. XVIII, p. 107; and Kercher’s comment on R v Steele at the Colonial Case Law project, n 1.
[20] R v West [1831] NSWSupC 66 (Supreme Court New South Wales, 12 October 1832, per Stephen J), reported in Sydney Herald 18 October 1832, available at the Colonial Case Law Project and AUSTLII (accessed 3 February 2014).
[22] R v Payne, (1830) NSW Sel Cas (Dowling) 681, Supreme Court of New South Wales, 18 March 1830 per Forbes CJ, reported in the Australian (Sydney, 19 March 1830).
[23] For a recognition of informal conveyancing practices see Sanders v Jones [1814] NSWKR 5; [1814] NSWSupC 5 (Court of Civil Jurisdiction, 6 July 1814, per Atkins JA) and see Kercher’s contextualization of the facts in Kercher B, Debt, Seduction and Other Disasters: the Birth of Civil Law in Convict New South Wales (Federation Press, Sydney, 1996) pp 122-23.
[24] R v Cooper, n 21.
[25] Forbes to Brisbane, 16 February 1825, Chief Justice's Letter Book, SRNSW, NRS 13681, 4/6651, p 24.
[26] Brisbane to Forbes, 16 February 1825, n 25, p 26.
[27] Gipps to Normanby, letter 23 December 1839, Enclosure 1, HRA, Series I, Vol XX, pp 441-6.
[28] Brown v Alexander 1828 NSWSupC 89 (Supreme Court of New South Wales, 30 September 1828, per Forbes CJ, Stephen and Dowling JJ). Making a similar point see Kercher B, “Alex Castles on the Reception of English Law” (2003) 7 Aust. J. Leg. Hist. 37 and for Alexander v Brown see Kercher and Young, n 9.
[30] Bourke to Rice, 16 February 1835, ibid, p 664
[31] Treat P, The National Land System (E.B. Treat and Company, New York, 1910); Powderly T, The Confirmation of French and Spanish Land titles in the Louisiana Purchase, MA Thesis, University of California, 1914.
[32] See the first act for the confirmation of Foreign Titles: Laws of the United States III, ch 340, pp 546-553; as amended by Laws of the United States III, ch.414, pp 626-29.
[33] Treat, n 31, p 210.
[34] Section 4 of the original Act, and Powderly, above n 31, 22-23.
[35] Laws of the United States III, ch. 388, pp 596-603, as almost immediately amended by Laws of the United States III, ch 457, pp 670-73.
[37] Court of Requests Act 6 Vict. No. 15 (1842) (NSW), s 4.
[38] New South Wales Government Gazette, 17 September 1833, p 380.
[40] Draft Order, SRNSW, NRS 2667 [9/2663], p 81; Proclamation 5 November 1833, Sydney Gazette and New South Wales Advertiser, 7 November 1833, p 3.
[41] The Australian, 13 November 1835, p 2.
[42] See Registers of Notices that Claims for Deeds of Grant and Town Allotments will be Examined by the Court of Claims, SRNSW, NRS 1235 [2/2147, 2/2148].
[44] Minutes of Proceedings [Commissioners of Claims], 1906-1922, SRNSW, NRS 2676 [9/715].
[45] Register of Memorials, above n 39; Memorials forwarded by the Commissioner of Claims, 1832-1842, SRNSW, NRS 913 [2/1778]. All memorials are unpaginated and hereafter are referenced to NRS and item number.
[46] The Australian, 16 September 1836, p. 2. This number was given in a report refuting the claims of the editor of the Herald that less than 150 deeds had been issued. It is very unlikely that the Herald was correct in this regard.
[47] See, for example, the Herald, 12 January 1835, p 4 in which there is an advertisement for a lot of land bounding Essex Lane (probably the current Essex St in the Rocks, Sydney) which describes the title as “‘first class’ being a grant which had passed through the commissioners court”.
[49] The Sydney Gazette and New South Wales Advertiser, 29 April 1834, p 1.
[50] Advertisement by Mr Mansfield, The Australian, 16 May 1834, p 1. Mr Kentish was less flamboyant, although he also noted that a valid deed alone could render the title secure against the world: The Gazette, 20 May 1834, p 3.
[51] The Australian, 11 Oct 1836, p 2, Note the advertisement of Mansfield stating that as he could no longer represent clients he had made arrangements for all of them to be otherwise represented: Australian 18 Oct 1836, p 1.
[52] Colonial Secretary to Commissioners, letter dated 22 March 1834, NRS2667 [9/2663], fol 75.
[53] Proclamation, 8 June 1829, Governor Darling, Copies of orders, notices, proclamations above n 18, fol 26. For the first Government Order listing parcels which would be advertised see ibid, Government Order No. 30, 8 June 1829, fol 27.
[54] For an example see Sydney Monitor 16 June 1830, p 1 (advertising allotments that in modern Sydney in the area of the current World Square). Note this is one of the first instances of the term ‘caveat’ being used in this way as a stop notice outside its original contexts of ecclesiastical law and the law of patents. For example, a caveat was a caution entered in the consistory court to prevent the grant of probate or administration from being granted without the knowledge of the interested party or parties (most commonly the next of kin). For an example of a caveat – which was in the form of a letter to the Colonial Secretary – see that appended to Jacob Josephson’s claim to the Court of Claims in 1834, Memorial No. 94 NRS 913 [2/1779].
[55] For returns of applications including a summary of the Surveyor General’s Report and the decision by the Governor see SRNSW, NRS 1240 [2/2149].
[56] For example, see the notification of claims being transferred in Government Gazette 24 December 1833, p 333 and the Sydney Gazette and New South Wales Advertiser, 26 December 1833, p 3.
[57] Memorial 549, SRNSW, NRS 913 [2/1790].
[58] Memorial 401, SRNSW, NRS 913 [2/1787].
[59] Memorial 83, SRNSW, NRS 913 [2/1779].
[60] Memorial 239, SRNSW, NRS 913 [2/1783].
[61] Memorial 855, SRNSW, NRS 913 [2/1842].
[62] Memorial 697, SRNSW, NRS 913 [2/1839].
[63] Memorial 829, SRNSW, NRS 913 [2/1842] and Memorial 894, NRS 913 [2/1779]
[64] Government Order, n 17.
[65] Memorial 3, SRNSW, NRS 913 [2/1777].
[66] Memorial 55, SRNSW, NRS 913 [21779] and Memorial 164, NRS 913 [2/1782].
[67] Memorial 391, SRNSW, NRS 913 [2/1787].
[68] Memorial 217, SRNSW, NRS 913 [2/1783].
[69] Memorial 3, SRNSW, NRS 913 [2/1777].
[70] All memorials are in NRS 913. For memorials 42 see [2/1778], 115 [2/1780], 207 [2/1783], 260 and 278 [2/1784], 332 [2/1786], 495 [2/1789], 538 [2/1790], 615 and 625 [2/1792], 676 [2/1793], 686 and 715 [2/1839], 763 [2/1840], 872 [2/1842A].
[71] Sydney Monitor, 11 June 1834, p 4.
[72] The Herald, 12 June 1834, p 2.
[73] Court Books Court of Claims, SRNSW, NRS 2669 [2/7667.3], pp 26, 29. My thanks to Peter Moore for the information on Mr Nichols.
[74] Memorial 52, NRS 913 [2/1778] (unpaginated). All description of the case is taken from this file unless otherwise indicated.
[75] See, for example, the Gazette, 19 June 1834, p 2
[76] The Gazette, 20 May 1834 p 3 and the Monitor, 28 May 1834, p 4. This is supported by Mr Mansfield’s Letter to the Editor of the Australian ( 27 May 1834, p 3) in which he outlines the fees payable in a hypothetical case involving 5 documents, 5 witnesses and 500 words of evidence taken.
[77] Government Gazette, 9 July 1834.
[79] Relevant Supreme Court costs at the time can be found in Rules and Orders of the Supreme Court of New South Wales, October 1831, reprinted Australian Almanack for the Year of Our Lord 1832, Howe and Mansfield, Sydney, table of fees, s xxxix.
[80] An heir-a-law is the person entitled to succeed to the real property of a person who died intestate.
[81] Although not mentioned in the decision both Balsover and Williams were former convicts. Ship records show that they both arrived on the Duke of Portland in 1807, having both been sentenced to transportation.
[82] The Herald, 12 June 1834, p 2.
[83] Sydney Gazette 15 Sept 1831, p 2.
[84] See the Herald, 24 October 1824, supplement p 2.
[85] The Monitor 11 July 1834, p 4.
[86] Monitor, 11 June 1834, p 4, emphases in the original.
[87] Monitor, 2 July 1834, p 4.
[88] Monitor 2 July 1834, p 4.
[89] Memorial 115, SRNSW, NRS 913 [2/1780]
[90] Davis also brought a successful claim against Mannix: see Memorial 198: SRNSW, NRS 913 [2/1782]. He succeeded based on uninterrupted and peaceful possession of the land for over 10 years.
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