McCormick v Allen [1926] HCA 42

22 HIGH COURT (1926. —

(HIGH COURT OF AUSTRALIA]

McCORMICK AND OTHERS . _ < . APPELLANTS ; PLAINTIFFS,

AND

ALLEN AND OTHERS . 2 ¥ . RESPONDENTS. DEFENDANTS,

ON APPEAL FROM THE SUPREME COURT OF NEW SOUTH WALES.

H.C. or A. Husband and Wife—Land which wife owned at her marriage—Interest of wife—Action

1926. in District Court of New South Wales against wife—Defence of coverture not Ces raised—Sale and conveyance of land by Registrar—Whether any title conveyed to Sypvey, purchaser—Estoppel—District Courts Act 1858 (N.S.W.) (22 Vict. No. 18), secs.

Aug. 17,18; 59, 78, 19—Registration of Deeds Act 1843 (N.S.W.) (7 Vict. No. 16), sec. 146— Nov. 12. Acts Shortening Act 1852 (N.S.W) (16 Vict. No. 1), sec. 67.

seae cashes, An action for debt was brought in 1887 in the District Court of New South — pa Wales against a married woman who at the time of her marriage in 1869 was

the owner in fee of certain land. She did not give notice, as provided in see. 59 of the District Courts Act 1858 (N.S.W.), that she relied on the defence of coverture, and the only defence taken was "not indebted." Judgment having been given against her, the Registrar of the District Court purported, pursuant to sees. 78 and 79 of that Act, to sell and to convey to the purchaser the land and all the married woman's right, title and interest therein.

Held, by Knox C.3., Higgins, Rich and Starke JJ. (Isaacs J. dissenting), that, notwithstanding the absence of the notice that the defence of coverture was not relied on, the sale by the Registrar conferred no title to the land upon the purchaser.

Decision of the Supreme Court of New South Wales (Long Innes J.)+ McCormick v. Allen, (1926) 26 S.R, (N.S.W.) 221, reversed.

39 C.L.R.] OF AUSTRALIA.

AppeaL from the Supreme Court of New South Wales.

Jeremiah Reardon, who died on 22nd April 1868, by his will devised certain land to his daughter Margaret Jane Reardon to hold to her absolutely. On 31st December 1869 Margaret Jane Reardon was married to John McCormick the elder; and about the year 1886 she left her husband and thereafter lived apart from him. On 21st September 1886 Margaret Jane McCormick by an indenture of mortgage purported to mortgage the land to one James Martin Green. That indenture did not purport to be acknowledged, and her husband was not a party to it. On 23rd April 1887 Margaret Jane McCormick by memorandum of agreement purported to agree to sell the land to one George Cox. On 25th November 1887 an action was instituted in the District Court of New South Wales against Margaret Jane McCormick to recover a debt alleged to be due by her to the plaintiff. The only defence taken was ' indebted," and no notice was given by the defendant that she relied on the defence of coverture. On 28th March 1888 judgment in that action was given for the plaintiff and in respect of that judgment a writ of fieri facias was, on 28th April 1888, issued directing the Registrar of that Court to "* make and levy by distress and sale of the lands, tenements and hereditaments of or to which the said defendant is seised or entitled, or which she can either at