‘Yes it has, at least I think so.’
‘Now as to the other property in Middle Harbour,’ continued the lawyer, ‘that allotment grant or farm of land lying and being at Middle Harbour near Sydney containing forty acres or thereabouts.’
The lawyer took a breath and raised his eyes. ‘That about does it for now, Mr Brown. The next step is for you to give consideration and to make a decision on the most appropriate trustee, get the trustee’s consent, talk the matter through with your wife and in due course I will see you back here in my offices. In the meantime I will draft up the complete document leaving the trustee’s name blank.’
Tom left his lawyer’s office with plenty to think about. That night he discussed the legal position of the trust with Mary Ann and they gave some thought as to the most appropriate trustee. In the end they decided the most trustworthy person they could think of was their local Roman Catholic priest, the Reverend John Joseph Therry.
Therry was well versed in such matters and agreed to be the Trustee, subject to a number of conditions. Thomas and Mary Ann again met with the lawyer and conveyed Therry’s conditions, which the lawyer inserted in the Trust document, as follows:
This conveyance is made to John Joseph Therry in trust to receive the rents of the premises therein mentioned, and pay over the same to Mrs Mary Ann Brown during her life without being subject to her husband’s debts or interference, and after her decease to education of the issue during their minority and after they attain their age or marry, to divide the premises amongst them. If no issue of the said Thomas Brown and Mary Ann, his wife, live to attain the age of 21 years or marry, then the said John Sullivan will become possessed of the said premises in trust for Mr Therry. After Mr Therry’s death the trust of the Deed will cease.
The trust document was dated 29 December 1829.
It was at this point that Tom Brown fell out with his father-in-law Tommy over the farm; both thought they owned it. Governor Darling had accepted Tommy’s earlier petition and on 13 July 1829 had confirmed Tommy’s ownership of 40 acres of land at Hunters Meadows. Thomas had always set aside 7 acres around his hut. He had previously assigned 3 acres to Nicholas and Eliza Nerney, 30 acres to the Browns and in due course he intended to leave the remaining 7 acres to Anastasia. However, Tom Brown thought he had an entitlement to 37 acres, as written in the deed of conveyance that Tommy had signed on 26 March 1826.
Meanwhile, Tommy O’Neil was still dealing with the authorities over the absolute acreage of the Hunters Meadows farm. So in September 1831 the farm was the subject of another survey. The surveyor reduced the frontage of the farm from 35 chains (700 metres) of usable land to 15 chains (300 metres) by including the foreshore rocks within the 35 chains. The survey reduced his arable farm area by 10 acres.
Tommy wrote a letter from Middle Harbour dated 15 September 1831 to Governor Darling in which he addressed the above issues and concluded:
I now humbly trust that Your Excellency will take these circumstances into your humane consideration and not allow such an act of injustice to be done to me after being in possession of the land for 20 years.
I am a poor man 78 years old, and have no dependence save that of my little farm, the subject of this letter.
I received a letter from the Colonial Secretary dated 13th July 1829 by the order of Your Excellency, confirming the promise of Governor Macquarie.
However, Thomas Brown was determined to get control of the farm so he also wrote a letter in September 1831, appealing to Governor Darling for the ownership of the farm to be certified in his name. The letter was delivered to the Colonial Secretary.
Your petitioner feels a confidence in making his appeal to Your Excellency’s well-known and philanthropic mind and your disposition to relieve the distressed and unprovided parents and infant offspring of native-born children.
Your petitioner’s father, two brothers and one sister arrived in this colony about 27 years back, all free, very young. His sister intermarried with Mr James Chisolm of George Street, Sydney and has since died; they arrived on the ship Cornwallis.
That about 8 years past, there arrived from Ireland, two daughters of one Thomas O’Neil of Middle Harbour in this Colony, both free and invited here by their father, the said Thomas O’Neil, one of whom petitioner intermarried by name Mary Ann Bridget O’Neil and by way of marriage portion, assigned and conveyed over all his right, title and interest of, in and to a farm situated in Middle Harbour aforesaid and your petitioner and my wife and heirs, executors administrators and assigns forever, with a covenant the said farm should revert to him in case of our deaths or dying without issue, which deed of conveyance is dated 26th day of March 1825 and duly registered in the Supreme Court Office of this Colony as will appear by a copy of said deed herewith sent to Your Excellency and which farm at Middle Harbour aforesaid was granted by the late Governor Macquarie as far back as 1813. The said Thomas O’Neil continued in the possession until conveyed to Petitioner and his wife.
That since the consummation of said marriage has had four daughters, one of whom is since dead, leaving three surviving children, the eldest nearly six years old, totally dependent on petitioner and their mother for their support, maintenance and education. Your petitioner being only a working carpenter, but of honest and sober habits and lately some casual unforeseen misfortunes having happened to him incurred by law and costs seeking after his just rights having much reduced his finances and by losses of cattle and expenditures on the said farm and care for it.
May it please Your Excellency to order a grant of said farm to be made out to him and his wife, which will be the means of making him and his wife, by their residence, thereupon to bring up their infant offspring in morality and virtue and they as in duty bound will pray.
Tom Brown was anxious for a response, and having received none by mid-November 1831 he wrote a further letter beseeching that he and his family could ‘reside’ at the Hunters Meadows farm. This letter had little effect. However, in July 1832, he did get a letter from the Colonial Secretary recommending that the farm be granted to the Browns, describing the covenant in the 1825 deed as a ‘foolish covenant reversing to himself [Thomas O’Neil], a man now of 80 years of age, a reversionary interest in the said farm in case of the death of 6 young lives, the youngest not two months old’.
The letter to Governor Bourke from the Colonial Secretary actually overstated Tommy O’Neil’s age by a couple of years.
However, the inaction by the governor was about to be overtaken by an event outside anyone’s control and that was a knock on the Brown’s front door. Mary Ann responded only to see her father at their Erskine Street door. Tommy looked tired and all his age.
‘Daddy, come in and sit down. What has happened? You look terrible.’
‘I feel terrible. You won’t believe what’s happened. Barney left this morning to go to his boathouse at Shell Cove. I saw him rowing across the waterway but he didn’t come back to Hunters Meadows. So Margie and I went up along the beach to Shell Cove boathouse.’
‘Yes, Daddy.’
‘And there we found him laid out on the floor. Cold stone dead! Margie said it would be the death of him, all that rowing in that heavy old boat. And she was right.’
Mary Ann jumped out of her chair and cuddled her father, trying to provide some comfort. His best friend gone. The journeyman. The man with the joke. The man who had been with him for so many years – working the land, sharing the good and the bad times, and the chat around the fire.
‘Daddy, what did you do after you found Barney?’
‘With great difficulty we lifted him out of the boathouse, carried him up the rise behind Shell Cove and buried him. Only Margie and I were there and I read from my bible. It was dreadful.’
‘Hmm, I would’ve been there if I’d known.’
‘Yeah, Margie said it was a great spot for him to be buried. She said he always liked to keep his eye on everything!’
Mary Ann knew straight away that her f
ather’s time at the farm was over. There was no way he could cope by himself. There was too much to do. Too lonely, and with his age he now needed to move on. It was time to sell the land and to come and live with them.
Apart from Tommy there was only Barney’s wife Margaret at Hunters Meadows. Margaret was still living in the house adjoining Tommy’s land and living off the garden and the small herd of cows she and Barney had accumulated. By now many people were living in the surrounding area so she was not alone, and she was good friends with her neighbours, John and Judith Hull. The Hulls lived in a house above her on the slope of the ridge.
When Tom Brown arrived home from work he was very surprised to see Tommy in his house. Matters had not been good recently between them as a consequence of the dispute over the ownership of the farm. Before Tom could say something he might regret Mary Ann ushered him into one of the other rooms and updated him about the death of Barney Kearns.
35.
William Foster and the Court of Claims
SYDNEY TOWN, 1833
By 1833 William and Anastasia had four children together: Elizabeth was eight, Ann five, John three and Sarah just born. William had turned forty-five and Anastasia was only twenty-three years of age.
They lived comfortably in Cumberland Street, The Rocks. Anastasia met with her half sisters from time to time and the cousins knew each other well.
William was finding his work as a shipwright more challenging. At the end of a workday he needed to stretch his body to ease the aches and the pains that found their way into his lower back and knee joints. It was not crippling pain but it was making life harder.
Over the years he had taken on new apprentices and skilled workmen, who were content to have a day job that earned them a reasonable income without the worry of securing contracts with the shipping companies or developing relationships with wharfing companies such as Campbell’s. They were prepared to do the heavier jobs while William managed them and secured contracts. This increased his income and enabled him to spend more time investing his money in property.
The life of William’s good friend, George Atherden, had also changed over recent years. On 15 February 1831 Atherden had married Harriet Ann Connor nee Parker. At twelve years old, Harriet had been convicted of larceny and transported, arriving in the colony in 1810 on the transport ship Canada. Michael Connor, her former husband, had passed away in 1830. There were no children from their marriage.
The Atherdens lived near the Fosters and were strong family friends. In most ways William had found, in George, a younger brother.
The attributes Robert Campbell had seen in George Atherden that first day of his arrival in Sydney had marked him for future responsibilities within the Campbell organisation. In the same year as his marriage he was appointed ‘wharfinger’ at Campbell’s Wharf. This meant he was responsible for ensuring the receipt and delivery of all the goods arriving and departing from Campbell’s Wharf.
William Foster, by 1833, owned five properties in The Rocks, including his own home. The other four were for investments from which he collected rents. However, just like Tommy O’Neil’s property at Hunters Meadows, no property surveys had been conducted and until that was done, a title could not be issued. In order to remedy such a situation, Governor Bourke (eighth governor of New South Wales) established a Court of Claims, where persons holding or claiming to hold lands where grants had been promised or given could be awarded ownership and title.
It had proved very difficult to substantiate the facts of titles for William and he had suffered much uncertainty in the course of his acquisitions. On many of the abandoned land sites squatters had taken up residence. If they were a longer term resident on the property they could gain a rightful claim to it. Consequently the vendor of a property may well believe they had valid title to a site, but did the person they acquired it from have valid title in the first place? The only way to be reasonably sure was to trace the ownership back to a specific grant of land by the governor of the time.
As a consequence these old system titles recorded a history of ownership.
Following the expiry of the Colonial Act of 1833, Bourke and the Legislative Council passed in 1835 a new Act, namely ‘An Act for appointing and empowering commissioners to examine and report upon claims to grants of land under the Great Seal of the Colony of New South Wales’. The job of the commissioners (or court) was to hear claims, to ‘be guided by the real justice and good conscience of the case, without regard to legal forms and solemnities’ or ‘rules of evidence’ and to make a recommendation to the governor as to who should receive a Crown grant. The governor was not bound to implement such recommendations.
Atherden alerted William to an announcement in the Government Gazette that read:
And the said Commissioners do hereby require all and every persons having any claim to the said lands to present their claims or pretensions thereto within the period of three months from the date of this present notice, and in default thereof, all claims and pretensions to such lands will be barred and extinguished except as now filed.
William commissioned a lawyer to help. By this juncture in his life, William had taught himself to read but he was still unable to write with clarity. In any event this was a legal process and he did not want to take any risks with his major assets. His lawyer, Matthew Charlton junior, had acted for him in each of his land purchases, so he knew the background of each property. Charlton prepared the claims and lodged them with the Commission.
The Commission accepted the claims over the five Foster properties, added a claim number and had them printed in the Government Gazette dated Wednesday, 9 July 1834, as follows:
The Commissioners for hearing and determining upon claims to Grants of Land, within the Colony of New South Wales, under the Act of the Governor and Council William IV No. 9, do hereby give notice, that the following Claims have been filed with their Secretary: to wit
No. 815 by William Foster, Cumberland Street, Sydney to 16 ¾ perches of land, the property of Wm. Foster, bounded on the west by the east side of Cambridge Street.
No. 821 by William Foster, Cumberland Street, Sydney, shipwright, to 12 perches [303 square metres] of land, bounded on the east by the west side of Cambridge Street, by an easterly line 9 links to the commencing south-east corner in Cambridge Street.
No. 827 by William Foster, Cambridge Street, Sydney, shipwright, to 4 ¾ square perches of land, situate in Cumberland Street, on the north by an easterly line of 57 links to Cambridge Street.
No. 833 by William Foster, Cambridge Street, shipwright, situate in Kent or Cambridge Street, bounded on the east by the west side of Cambridge Street, on the west by the east side of Pitt Street.
No. 845 by William Foster, Cumberland Street, to an allotment of land situate in the parish of St. James, on the north by an easterly line of 69 links to Harrington Street.
And the said Commissioners do hereby require all and every person or persons having any claim to the said lands, to present their claims or pretentions thereto within the period of three months from the date of the present notice, and in default thereof, all claims and pretentions to such Lands will be barred and extinguished, except as now filed.
Dated at Sydney, New South Wales, this seventh day of July, 1834
By Order of the Court – JOHN DILLON, Secretary
William met with Charlton to discuss each of the claims.
‘Now, Mr Foster, for the sake of clarity, the notice in the Gazette does not mean your claims have been recognised, only that your claim and the sites have been acknowledged.’
‘Yes, Mr Charlton, I understand that.’
Charlton went on, ‘By printing the list of property claims, it enables other potential claimants, if they so wish, to lodge a counterclaim.’
‘So each of my properties has the potential for a counterclaim?’
‘Yes, that’s correct. My job now is to prepare a “memorial” on each of these properties to back up the case that you are the rightf
ul claimant. Now, as I go through the details of each property, one by one, could you please mention any further relevant information?’
William realised it was going to be a long day or two and gave a simple nod of his head to proceed.
Charlton continued. ‘Mr Foster, we can do this in any order. Let us firstly work through …’ He shuffled his papers and produced a folder headed ‘Cambridge and Cumberland Streets’ with the number 821 written in red pencil on the front cover. After considering the contents of the folder the lawyer said, ‘I will call eight hundred and twenty-one Memorial D. When we finish we will have five memorials prepared titled “A” to “E” to avoid any confusion. You have to keep in mind that the commissioners will receive hundreds of memorials in respect of land all over the colony, therefore, absolute clarity is critical in our presentation.
‘Now let us start. According to my records this property is situate in Cambridge and Cumberland Streets, Sydney, Parish of St Philip’s. It is bounded on the east by Cambridge Street; on then north by Peacocks and Young’s premises; on the west partly by Cumberland Street and partly by Atherden’s premises; and the south by Atherden’s and Welsh’s premises. This property is referred to as Section eightyseven. The property is described as being twelve perches. To the best of your knowledge is that correct?’
William thought for a moment and worked through in his mind each of the adjoining properties. ‘Yes, it is.’
‘Now I want to walk you through the history of this site as best as you can recollect. The earliest occupier we have is a gentleman by the name of Alexander Fraser.’
‘Yes I remember him well, a decent man. He lived there in eighteen twenty-three. I remember it well as it was before I met my wife Anastasia. I had a few drinks with him from time to time. He was often at the tavern. He lived at the property until he passed away.’
The Tailor and the Shipwright Page 24