ST. AUSTELL PARISH
TREVERBYN TREVANION - 1852 –
exerpted from the West Briton and Cornwall Advertiser, 2 April, 1852
and October 8, 1852
J. Mosman, OPC
West Briton and Cornwall Advertiser - 2 April, 1852
QUARTER SESSIONS -
(Before Mr. Justice TALFOURD.) Doe Dem. TREVANION and ANOTHER v. LAMBE
Mr. CROWDER, Q.C., Mr. BUTT, and Mr. PRIDEAUX for plaintiff; SERJEANT KINGLAKE, Mr. M. SMITH, and Mr. KARSLAKE, for defendant. Attorneys; Mr. GILL, of London, for plaintiff: Messrs. COODE, BROWNE, and CO., of London, and Mr. CHILCOTT, of Truro, for defendant.
The following gentlemen were sworn as a Special Jury:- Mr. W. MORSHEAD, Mr. T. G. GRAHAM, Mr. FRANCIS PARKYN, Mr. CHARLES BUDGE, Mr. C. H. T. HAWKINS, Mr. N. KENDALL, Mr. C. P. BRUNE, Mr. MORRISH WILTON, Mr. W. H. TAPSON, Mr. R. BARRETT, Mr. R. G. DIMOND, and Mr. FRANCIS MOYSE.
Mr. Prideaux having opened the pleadings, Mr. Crowder stated that this was an action of ejectment to recover a moiety of 320 acres of land, situate in the parish of St. Austell, and within the manor of Treverbyn.
The plaintiff, JOHN CHARLES BETTESWORTH TREVANION, was the representative of an ancient Cornish family, who had possessed considerable property in this county. The defendant, HENRY LAMBE, was a gentleman, formerly in the profession of the law, and who possessed considerable property near St. Austell, including certain ancient tenements in the neighbourhood of the land now sought to be recovered by the plaintiff.
According to history, in former days the manor of Treverbyn was a single undivided manor; but at some time prior to the reign of Henry the 8th, the manor was held by co-heiresses; and one portion of it became transferred to the Duchy of Cornwall, in whose hands it had remained ever since; while the other moiety descended through the Trevanion family, to the present plaintiff. At the time of the division of the manor, it assumed the names of Treverbyn Courtenay, and Treverbyn Trevanion; and that was done with respect to this manor which was common in many manors of Cornwall that had been divided in parcenery, - the parceners held the demesne lands severally, while the waste lands had been held by the parceners jointly, or in joint tenancy by those who held under them. That was the reason why the plaintiff claimed only a moiety of this land; because he claimed to hold in commonalty with the Duchy.
Respecting the title of John Charles Bettesworth Trevanion, it would be found that John Trevanion Purnell Bettesworth Trevanion, the father of the present Mr. Trevanion, married in 1801; and by his marriage settlement, the lands to Treverbyn Trevanion were settled on himself for life, with remainder to his son in tail. In 1840, the late Mr. Trevanion died, and the whole of the estate came into the hands of the present plaintiff. That was the title under which he now claimed.
Mr. Crowder went on to say that the gentlemen of the jury were doubtless well aware of the nature of tin bounds - that all wastrel land in this county was subject to be tin bounded by persons who chose to work for tin and who placed their bounds on particular portions of wastrel land, which in early times was fit for nothing else. They then worked for tin in the best manner they could, paying to the lord of the manor a portion of the produce called his "dish".
The learned gentleman next proceeded to speak of the distinction between the Duchy assessionable manors and its annexed manors. In the reign of Henry the 8th, there was an Act by which several manors were annexed to the Duchy; the manor in question was one of these annexed manors; and from the time of Henry the 8th, one moiety of it, as had been already observed, had been held by the Duchy, while the other moiety was the property of the Trevanions. In this manor of Treverbyn, was a considerable quantity of waste land - as much as 1,700 or 1,800 acres. From early times, much of this waste land had been worked in various ways for tin, the Trevanion family and the Duchy dividing the tolls between them.
Mr. Crowder then handed to the jury a map of the manor, in which all the waste land, a moiety of which was not sought to be recovered, was coloured red; there being four uncoloured portions representing certain ancient tenements unquestionably the property of Mr. Lambe, the defendant. Toward the west was an old free tenement called Carnsmerry, or Carn-rosemary; it was a tenement which had always paid a high rent, and that high rent had always in all time been received by the plaintiff and his ancestors; that piece of land consisted of about twenty acres, and was entirely surrounded by part of the waste land now in question. The high rents of that tenement had been received by the Trevanions exclusively, because it was part of the demesne lands held by the Trevanions undivided.
Then eastward of Carnsmerry was another tenement of Mr. Lambe's, called Rosevear, consisting of eighty acres; and that also had from all time paid high-rent in the same way. South-west of Rosevear was a small tenement, the property of Mr. Lambe, consisting of four acres, called Hallivet, and which had never paid any high-rent at all. Then, rather more to the eastward and southward was the fourth tenement, called Rosevean, containing about forty acres.
Mr. Lambe claimed that the portion of the manor now in question belonged to him as part and parcel of the four tenements which had been mentioned. For instance, Mr. Lambe said that Carnsmerry was the ancient tenement, and that a great part of the land around was part and parcel of that ancient tenement, having, somehow or other, been added to or connected with it. The plaintiff, on the contrary, affirmed that this surrounding portion had been waste from all time, and therefore was as much the lord of the manor's as any other waste in the manor. Until of late years, there was no produce from these wastes but some rough grass and turves used for fuel, and tin obtained from stream and other works; until the clay works had been established within the last twenty or thirty years. There were no trees on the wastes.
Mr. Lambe's claim was considerable, in as much as, in respect of his four tenements comprising altogether 104 acres, he claimed an addition of about 350 acres. The plaintiff, however, claimed a moiety of only 320 acres, because, in respect of about thirty acres of the original waste, there had been enclosures by encroachment, at a period too far back for the Trevanions to recover. But with regard to the 320 acres to which the present claim applied, there would be no objection by reason of any statute or period of limitation.
Mr. Crowder next stated that he believed the whole of the coloured portion of the map - (the waste now in question) - was under tin-bounds. Near Carnsmerry particularly, was a well-known mine called Beam Mine, which had been worked from the earliest times, and it would be shown that in respect of the tin raised in the mine, dues had always been paid, one moiety to the Duchy, and the other moiety to the Trevanions. Those Duchy mines had been out on lease; and in all those mines it would be shown that the Trevanion's toller and agent did from time to time take a moiety of the tin tolls, in respect of Trevanion's royalty, and also the high rents in respect of the free tenements.
It was not until somewhere about 1820 that clay pits were opened in this part. Of course, as the lord of the manor was entitled to the soil, the pits could not be opened without his consent, and he would be entitled to receive part of the proceeds according to any arrangement that might be made. During part of the time when the Duchy rights were out on lease, many of those rights were considerably neglected; and from circumstances in the case it would be perceived that the Trevanions' rights were also very likely to have been neglected; encroachments would be made from time to time, and, from want of attention, the Trevanion rights were very much in danger of being lost.
The late Mr. Trevanion lived at Carhayes Castle, near Mevagissey, and between 1820 and 1830 got into considerable difficulties; he became obliged to quit the country and remained in Belgium for a considerable time, during which his creditors filed a bill in Chancery, and meanwhile the whole of his affairs got into a very wrangled state. The late Mr. Trevanion remained in Belgium till his death in 1840. The present Mr. Trevanion was also in Belgium at that time, and did not return to this country till 1848. During this time, and when the clay works began to be opened, various enclosures were made by encroachment, including those by Mr. Lambe; but in respect of none of these would the Statute of Limitations be found to operate against Mr. Trevanion, because there was a life estate in the elder Trevanion until 1840, and the period of twelve years that had since elapsed was no impediment to the recovery of the property to the present Trevanion.
If due attention had been paid to the property, in all probability notice of the encroachments would have been taken, and actions of ejectment brought. But, from the earliest times, dues had continued to be paid to the Trevanions; while the tenants had the ordinary rights of common such as pasture and turbary. If there had been trees on the common, there might have been evidence of the cutting them down for the use of, and yielding profit to, the lord of the soil; but no such evidence could be offered in the present case, because there had never been any trees on the common.
If he should prove the facts he had stated, he should have established a prima facie case to substantiate the plaintiff's claim; and he believed it could not be shown by any deed or conveyance that any of the wastes in question had been parted with, except as affecting the moiety which had been held by the Duchy, and which could not in the slightest degree operate on the Trevanions' moiety. It appeared that about 1826, there was a spot found at Goonbarrow which appeared likely to yield clay, and application was made by a person to the agent of Mr. Trevanion for this spot.
The position of the parties in this case being such as it was, it was for the plaintiff to prove by acts of ownership or otherwise that he was entitled to this property; but, so far from having done so, the evidence adduced for the plaintiff was most pregnant and forcible in support of the defendant's case, showing, as that evidence did, that the plaintiff's agent had been most careful in obtaining from the defendant, dues in respect of the tin and clay mines in the neighbourhood; whilst over the extensive clay works now in question, they had made no claim.
The learned Serjeant then received and commented on the plaintiff's evidence; and having done so, proceeded to state that on the part of the defendant, he should establish that what was called the old enclosed land, instead of being continued to eighteen or twenty acres, as his friend had represented, was some thirty-six acres, - that from time immemorial, enclosures had been added - and that there had been a continuous system of enclosure from the earliest period that recollection could go back to, down to the present time. Surrounding the old enclosures, there had been from time of old, waste grounds, and that waste had been enclosed from the earliest times, from time to time, according to the convenience and will of the freeholders - the Lambes.
Of course, a person in the possession of waste land was not bound to enclose it all at once. If the waste extended over the space stated by his learned friend, then the very first field enclosed by the Lambes was a usurpation, and the continued enclosures were so many encroachments from the earliest times down to the present moment, in the face of the Duchy and of the Trevanions, without any steps being taken to prevent these encroachments.
The next act of ownership on the part of Mr. Lambe was the leasing of his enclosed lands on every one of his four tenements; and leases would be produced in proof of these acts of ownership. It would be further proved that over those parts of the property that was subject to tin bounds, Mr. Lambe had been in the uninterrupted enjoyment of houses which he had built on various parts of it, and which houses formed part of the property leased to his tenants.
The next point urged by the learned Serjeant was that for the last twenty-five years, Mr. Lambe had had an undisturbed and undisputed use of the claylands, exercising thereupon most distinct acts of ownership, bringing up from the bowels of the earth the most valuable part of the property. It would be proved in respect of the leased tenements, that the respective tenants had each been confined within the boundaries of his tenement, except as regarded their use of a portion of the manor which was an acknowledged waste of the manor open to all the tenants in common.
They had heard about Beam Mine being worked by adventurers, one of whom was Mr. Rashleigh. Now it would be proved that there was a payment by the lessees of Beam Mine, of 2s. 6d. a year for turf cut in Carnsmerry, through a long series of years; while no doubt, as his learned friend had said, tin tolls had been paid to the Duchy and Trevanion in respect of that mine, which clearly was tin bound property. These were the substantial acts by which Mr. Lambe's ownership would be established. He never entertained the slightest doubt that he was entitled to the freehold of the four tenements; but there was a high rent of 8s. 7d. due to Trevanion on parts of the estate; and he said to Trevanion "the property is mine, but rather than have any dispute with you, I will give you £400 and you shall convey to me whatever you suppose is your right"; and a deed dated February 2, 1829, was executed for that purpose, Mr. Lambe, however, constantly protesting against any invasion of his freehold rights.
A considerable quantity of documentary evidence was then put in, consisting of nearly forty leases and setts in the tenements of Carnsmerry, Rosevear and Rosevean, and one of the tenements of Hallivet, in 1836. The foundation of the documentary evidence was a lease of Rosevere, the centre tenement, dated 1715; which described the boundaries of that tenement and made it abut on the other three tenements, and thereby giving parts of their boundaries.
Tuesday, March 30. This morning the evidence in defence was resumed by the putting in of the deed of conveyance from Trevanion to Lambe, dated February, 1829. Discussion was renewed on the question whether or not that deed conveyed the land in the several tenements, as well as the manorial rights with reservation of tin dues. The learned Judge held that the deed did not convey the land; but stated that if the verdict should pass for the plaintiff, he would give the defendant leave to move to enter verdict for defendant, on that point; for, undoubtedly, if that did(sic) could be understood to convey the land, there could be no further question as to Mr.Lambe's right.
The oral testimony in the defendant's case was given by:- Mr. RICHARD CARVETH, Surveyor, of St. Austell, (who proved, among other things that the old enclosed portions of the four tenements, amounted to 182 acres; while the remained was 323 acres); Mr. E. COODE, clerk of the peace; Mr. W. SWAFFIELD, formerly a clerk in Messrs. Coode's office; Messrs. WILLIAM HORE, JOSEPH ROWE, SAMUEL ROBERTS, ROBERT HORE, JOHN WILLIAMS, JOHN COOMBE, RICHARD WEST, MARY WARWICK, JAMES COOMBE, BENJAMIN HORE the younger, and JOHN HORE, lessee of Hallivet; Mr. JOHN PASCOE, captain of Goonbarrow claywork; Mr. THOMAS BRAY, of Rosevean Clay-work; Mr. W. LUKE, of Charlestown; Mr. W. YELLAND, of St. Austell; Mr. JOHN VARCOE; Mr. SHILSON, solicitor; and Mr. JOHN BROWNE, of London, attorney for Mr. Lambe.
At a quarter to six Mr. Crowder began his reply, which occupied nearly three and half hours. He repeated that adverse possession by Mr. Lambe for twelve years since the death of the elder Trevanion could not affect the title of his son, the tenant in tail; and therefore the jury would have to consider the question to whom did the property belong at an antecedent period; and on this point the learned Counsel remarked that there was no proof of any act of ownership by Mr. Lambe prior to 1815. The learned Counsel again adverted to the copy of the Parliamentary survey in the time of Oliver Cromwell as furnishing distinct evidence of the boundaries of the manor, and that those limits included "Great Beam" mine, in Carnsmerry, which was mentioned as being "in the commons" where the tenants had rights of common. He (Mr. Crowder) contended that it comprised no more than what was marked white in the maps, and that Mr. Lambe had no right to claim in addition the surrounding land, the whole of which was, in 1815, perfectly unenclosed, and as much waste of the manor, or any other portion of its waste.
The learned Judge summed up, and in conclusion, requested the jury to let their verdict pass generally for plaintiff or defendant, in respect of Carnsmerry, Rosevear, and Rosevean; but to give their attention separately as to Hallivet, the evidence with regard to that portion being of a different character from that which related to the three other portions.
The jury returned at eleven o'clock; and in about half an hour, proceeded to the Judge's lodgings, and returned a Verdict For Defendant, in respect of all four tenements
West Briton and Cornwall Advertiser. Friday 8th October, 1852.
CORNWALL - THE TREVANION ESTATES - To be Peremptorily Sold by Public Auction, at Dunn's Hotel, St. Austell, on Monday the 11th day of October next, (unless previously disposed of by Private Contract,) by JOHN GUMMOE, on behalf of the Mortgagees of JOHN CHARLES BETTESWORTH
TREVANION, Esquire, under full [po....ers?] of Sale, the Valuable Freehold Estates, noble mansion, productive china clay works, commons including minerals and manorial rights, in the several Manors of
Carhais, Treburthes, Grogoth, Tolgarrick, and Treverbyn Trevanion, comprising a vast extent of country in the several parishes of St. Michael Carhais, Gorran, St. Ewe, Ruanlanihorne, Cuby, Cornelly, St. Austell, St. Stephens, St. Dennis, and St. Mewan.
Printed particulars, with plans and conditions of Sale, may be had on application to the said Mr. JOHN GUMMOE, at St. Austell; to Mr. H. RHODES, Solicitor, 9 Davies Street, Grosvenor Square, London; to Messrs. HARRISON, TENNANT, and FINCH, Solicitors, 2 Gray's Inn, London; and at the principal Hotels in the neighbourhood of the Estates.
TREVANION ESTATES CORNWALL - In reference to the Advertisement announcing the Sale of these Estates by Auction at Dunn's Hotel, St. Austell in the county of Cornwall, on Monday the 11th day of October 1852, and following days, Persons Are Hereby Cautioned against purchasing or entering into any biddings or contracts at such Sale, for the purchase of the Lands so advertised, as a suit against the Parties offering the said Estates for Sale, now stands for hearing in the High Court of Chancery, impeaching the securities by virtue of which such Sale is purported to be made, on the ground of Usury and such suit has been duly Registered in pursuance of the Statute of 7th and 8th Victoria, Cap. 90. Dated this Sixth day of October, 1852.
THOMAS GILL, Solicitor, for J. C. B. TREVANION, Esq.,
33 Bedford Place,
Russell Square, London.
TREVANION ESTATES, CORNWALL - The Public Is Hereby Informed that by virtue of Powers of Sale contained in certain Indentures, bearing date respectively the 29th of April, 1826, the 22nd of April, 1827, the 19th of May, 1827, the 18th of February, 1828, and the 1st and 2nd of February, 1836, the Estates advertised to be Sold at Dunn's Hotel, St. Austell, in the county of Cornwall, on Monday the 11th day of October instant and following days have already been Sold by Private Contract, to HUGH CHARLES TREVANION, Esquire, such Powers of Sale being prior to point of date and security, to those under which the parties so advertising these Estates will attempt to sell at the time and place
aforesaid. Any parties bidding and entering into a contract for the Purchase of such Estates, or any part thereof, will do so at their own peril.
Dated this 6th day of October, 1852.
West Briton and Cornwall Advertiser. Friday 15th October, 1852.
THE SALE OF THE TREVANION ESTATES - The sales of these estates, which our readers will have observed have been so often, and so curiously, advertised in the columns of the West Briton, came off at Dunn's White Hart Hotel, St. Austell, on Monday last. A numerous and highly respectable company assembled on the occasion, comprising many influential gentlemen in the county.
The business of the day was commenced by Mr. FINCH, of the firm of HARRISON, TENNANT, and FINCH, the solicitors conducting the sales, who addressed the meeting as follows:- "Gentlemen of the county of Cornwall, - the auctioneer has requested me, as the solicitor of the vendors, briefly to state to you the circumstances under which we now appear before you. Though always unwilling to occupy the time of the public, I yield to the somewhat singular nature of this case, and, if not disagreeable to you, I am myself desirous to comply with the auctioneer's request. (Hear)
Gentlemen, the ancient and honourable family of Trevanion, a considerable portion of whose princely patrimony is about this day to be submitted to public competition, have, as you may all of you perhaps
know, been for many years past apparently in circumstances of pecuniary embarrassment. It appears that in the years 1838 and 1839, JOHN TREVANION PURNEL BETTESWORTH TREVANION, Esq., and JOHN CHARLES TREVANION, Esq., were, at that time, in the hands of the money lenders. It is certain that in the years 1841 JOHN CHARLES B. TREVANION, Esq., (his father being then dead) had become almost hopelessly involved with some of those usurers, annuity-mongers, and discounters who are to be met with in the metropolis.
About the latter end of the year 1841, application was made to the late Mr. THOMAS RHODES, of Davies-street, Grosvenor-square, to advance large sums of money on the security of these estates, for the purpose, as alleged to him, of assisting in relieving Mr. Trevanion from his difficulties. Mr. Rhodes - from no special motive of benevolence certainly, but being a professional man, probably as a profitable matter of professional business, - entered into arrangements for the advance of certain sums, and ultimately, as it is on all hands admitted, actually did advance sums at any rate exceeding in the whole £ 20,000.
Gentlemen, I desire to avoid making in this room any assertion that can possibly be disputed, but, I should tell you that the sums claimed to be due by the representatives of Mr. Rhodes greatly exceed £ 30,000. It is alleged, and I am pained to say, it is unblushingly admitted, by some of those persons who are now attacking Mr. Rhodes's memory, that not one shilling of the sums advanced by Mr. Rhodes ever found its way into the hands of Mr. Trevanion. (Hear)
Gentlemen, the basis of Mr. Rhodes's securities was a sale of those estates. Those securities were executed and perfected during the years 1842, 1843, and 1844. Mr. Rhodes lived till July, 1846, when he died, and, at the period of his death, I should mention to you, those persons, usurers, annuity-mongers and discounters who, on the alleged behalf of Mr. Trevanion, had received and shared amongst themselves Mr. Rhodes's money, had also been removed from the theatre of these affairs, - not indeed by death - they had escaped, in a manner peculiar. I may say, to their class, - they had severally passed through the Bankruptcy and Insolvent Debtors' Courts. You must not suppose, however, that on the departure of these worthies, others would not spring up to occupy their places, and attempt to play over again, in relation to this property, the exciting game which their predecessors had left apparently only half played out. Such persons soon made their appearance, showing by their actions that, as their predecessors had succeeded so easily in victimizing Mr. Trevanion, they, on the other hand, could as easily succeed in duping the representatives of the late Mr. Rhodes.
These persons, as is usual in such cases, commenced operations by opening a correspondence in the
language of intimidation. In a letter which my firm received in July 1851, it is stated that unless Mr. Rhodes's widow and representative accepted £ 25,000 in full of all her demands, a Bill in Chancery would be filed against her impeaching her late husband's securities. That sum was not accepted, and I need not now tell you that the threatened bill was filed. By this time, I suppose, you are all familiar with the celebrated cause of COCKELL v. BACON. The filing of the bill in that suit imparted a new phase to these affairs. At last it had come then to this:- The persons, to whom I have alluded, had brought themselves face to face in the Court of Chancery, with the bond fide incumbrancers on these estates. It was at once apparent on the filing of this bill, that an opportunity was thereby afforded of clearing these estates from their embarrassments by a public sale, under, as it were, the very eye of the court: That is to say, a sale conducted by such parties, and in such a manner, that, whilst the estates should be effectually and absolutely transferred and conveyed to bond fide purchasers, every shilling of the purchase monies should be paid and accounted for under the protection of the court. Our own experience, the opinions of eminent counsel, and, as you will collect from the eighth condition of
sale, the sanction of the court itself, have concurred in convincing us, that this was the proper course for the representatives of the late Mr. Rhodes to pursue. They have pursued it accordingly. In spite of
cajolery, and in spite of threats, notwithstanding the attempts, direct and indirect, to which even your local papers testify, that have been made to obstruct us, and not withstanding too the horror we entertain of being brought into such close contact with the characters opposed to us, we are now here to meet in the face of day the public of the county of Cornwall, prepared to sell to bona fide bidders the whole of the estates comprised in these particulars.
Gentlemen, for my own part I say emphatically, though a humble member of a peaceful profession, I
should have been ashamed of myself and of that profession could I have conceived it possible that any earthly power - save the power of the law - could have made me shrink from meeting you here this day.
Gentlemen, it may be easily imagined that the course we are pursuing is fraught with inconveniences to the parties who are striving so desperately to baffle and obstruct our progress. We regret to occasion
inconvenience to any persons, but we have thought, gentlemen, and we trust that you will be found to agree with us in thinking that those inconveniences are more than balanced by the fact, that a sale under the lynx eye of the Court of Chancery affords the only remaining chance of realising something for the present members of the Trevanion family. For, of course, the advertisements you may have seen to the effect that a sale of these estates has already been made to Mr. Hugh C. Trevanion, must, from the very nature of the notorious circumstances of the case, be purely colourable and nugatory. We all might wish that it were otherwise. For myself, I say sincerely, I do wish that Mr. Hugh C. Trevanion had the means of making so considerable a purchase, but it is my duty to tell you that we should be deluding ourselves exactly as it is desired by certain persons that we should be deluded, if we allowed ourselves to suppose that any such sale could have been effected. For not only must it be perfectly well known that this young gentleman has no means wherewith to make so large a purchase, I affirm to you that the parties assuming to sell to him possess no powers for any such purpose. Powers of sale, indeed, may once have been contained in their securities, but their powers, whatever they were, are now, and for a long while past have been, completely paralysed by the superior power of the court. I affirm to you that it is perfectly certain those persons cannot sell these estates, even if they would. Gentlemen, I have only to add that every shilling of your purchase monies, unlike Mr. Rhodes's mortgage monies, will be preserved from misappropriation by the Court of Chancery, and if there should happily be a surplus, after all just and reasonable and equitable demands are satisfied, that surplus, whatever it may be, will find its way into the hands of the persons really entitled to receive it. Gentlemen, I thank you for the attention with which you have listened to the observations I have thought it no less due to you than to myself to make. I now respectfully leave the business of the day to the auctioneer".
Mr. Finch resumed his seat amidst great cheering from all parts of the room. The sale then commenced, and proceeded with much spirit, a considerable portion of the estates selling at very fair prices during the day. We have since heard that it was brought to a conclusion on Tuesday afternoon, when very nearly the whole of the one hundred and twenty-five lots had been satisfactorily disposed of.
transcribed by Isabel Harris, for the West Briton newspaper, 2010
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