MARTHA ROWE, ADMINISTRATIX, AGAINST THE HEIRS OF THOMAS STREET. ¹
Action to recover possession of a fishing-room at Trinity ; and also to recover the sum of £50, being for five years’ rent, at £10 per annum, from the year 1813 to 1817.
Per Curiam. This case is very defective of evidence. It is stated that the late Thos. Street, deceased, obtained a grant of the fishing-room in question for James Rowe, who, in consideration of this service, allowed him to retain the use of the room during his life. All this is very unlikely, insomuch that I should have suspected there were other causes for this arrangement if they had not partly been stated and admitted at the hearing.
It now turns out that Rowe, becoming involved with his creditors in England, by way of securing his plantation from being taken in satisfaction of his debts, obtained a grant through the intercession of Street. As against the creditors, this grant was void, because it has been repeatedly held that the governor cannot grant any part of the island adapted to the fishery. The whole of the sea-coast is already granted away by the statute of William. As between the parties, however, to the arrangement, I must take as my guide the intentions which probably governed them.
It is stated by Adams, in an affidavit taken de bene esse, that he received a letter from Street, for whom he acted as agent in this island, in the year 1805, in which he acknowledged that he held the plantation in question by permission from Rowe, during such time as he thought fit to use it. This is corroborated by the fact that the property has actually since been given up (subject to a subsisting lease) to Rowe’s representatives. On the one hand, this is considered as a voluntary act, proceeding, ex mero motu, of Street’s widow ; while, on the other, it is regarded as an admission of the right of Rowe’s representatives. With the latter view of the case, under all circumstances, I agree ; and, therefore, I hold them entitled to the surplus rents received by Street’s representatives, together with the reversionary interest in the lease itself. Beyond this, however, I cannot go.—The property was leased to Macbraire, and under-leased by him, after a length of possession, and with every appearance of right, sufficient to warrant a title in the lessor. If the Rowes have fallen asleep over their better claim, it is their fault, and should not prejudice innocent parties.
¹ Newfoundland Select Cases, 1817–1828, pp. 240–242.