The First Special Survey in the district of Mount Barker in South Australia purchased on 11 January 1839 by William Hampden Dutton on behalf of himself, Captain John Finnis and Duncan Macfarlane was not without substantial difficulties which are elaborated upon below:
WH Dutton's Insolvency
William Hampden Dutton suffered severe financial problems during the later part of 1840. On 23 December 1840, under a Deed of Assignment, he appointed trustees (Gordon, Sandeman and others of Sydney and Melbourne) to administer his estate real and personal .... for the general benefit of his creditors.
(As reported in The Cornwall Chronicle, Launceston, Tasmania on Saturday 26 September 1846) ....... New Insolvent — William Hampton Dutton, formerly of Sydney, merchant, but now of Melbourne. Liabilities, £74,772 17s. 10d. Assets, personal property £10. Balance deficiency, £74,762, 17s. 10d. Mr. Dutton, in accounting for the deficiency exhibited by the schedule, stated that his insolvency arose from the depreciation of stock and property in the colony; that in the year 1840, he assigned all his estate real and personal to Gordon, Sandeman and others of Sydney and Melbourne, in trust for the general benefit of his creditors; that the trusts of the deed of assignment were not carried out, nor was he discharged from his debts under the provisions of the then act under which the assignment was made; that he still continues liable to his creditors and is unable to pay them.
The Chief Commissioner, Insolvent Court - District of Port Phillip, issued a Certificate of Insolvency for William Hampton Dutton on 15 December 1846.
Mortgage of WH Dutton's Sections
An Indenture dated 16 October 1841
Dutton's financial difficulties not only created major problems for the Special Survey partnership of Dutton, Finnis and MacFarlane, but also the separate stock dealings carried out by a company which had been formed by Finnis and Dutton (Finnis's step son-in-law) for that purpose. As a result, legal action was undertaken by Finnis against Dutton regarding their separate partnership. Fortunately, before they were involved in ruinous litigation, the matter was referred to arbitration and a settlement dated 2 September 1841 was agreed upon which was filed in the Equity side of the Supreme Court.
The above settlement included nine requirements of which the following two effected land included in the Special Survey: The other requirements involved allocation of stock and financial provisions which also involved Frederick Hansborough Dutton (WH Dutton's brother).
- First -- 1,250 acres of land of Mount Barker survey to include one section of land to be sold to the Germans to be the property absolutely of the said John Finnis.
- Second -- 1,250 acres of land of Mount Barker survey to include one other section of land agreed to be sold to the Germans to be conveyed or otherwise held in trust to secure the out-standing liabilities of the firm of Finnis & Dutton.
Letter to WH Dutton's
However, the difficulties associated with WH Dutton's insolvency continued for some time as indicated in the following correspondence written by John Finnis' counsel, Charles Mann, barrister, Gawler Place, Adelaide to E. W. Cameron, esq., c/o Messrs. Aspinall, Browne, & Co., Charlott place, Sydney and dated 5 March 1842.
Sir — By Mr. F. H. Dutton, who is the bearer of this, and by whom you will receive the following papers: —
1. A subpeona. Finnis, and another v. Dutton.
2 A deed of partition release and covenant.
3. A conveyance from W. H. Dutton to Duncan Macfarlane, of the legal estate of one-third of an estate termed the Mount Barker Estate, jointly taken by Mr. W. H. Dutton, Mr. Macfarlane, and Captain Finnis.
4. A conveyance from Mr. W. H. Dutton to Captain Finnis, of the legal estate in another one-third of the same estate.
5. The copy of deeds of lease and release in trust to sell of the one-third of another portion of the said estate (No. 1).
The deed and partition release and covenant fully sets forth the nature and cause of the partition made of the Mount Barker property, and the cause of the conveyance of the legal estate to Captain Finnis and Mr. Macfarlane (Nos. 3 and 4).
You will learn from Mr. F. H. Dutton, and the contents of the deed of partition will, I think, clearly show the necessity of the partition, and that it is for the benefit of all parties. This portion of the affair, therefore, seems clear of all difficulty, and I trust you will be able to impress on Mr. W. H. Dutton that so far as the execution of the conveyance of the legal estate of the one-third to Mr. Macfarlane and Captain Finnis is concerned, it is best for all parties that the property should be held is severalty and these deeds executed. In fact, the partition has satisfied all parties, and the impossibility of using the property while held in common is such that the partition and conveyances are mere matters of common course.
The partition deed will also suggest the reason of the subpeona. In order to clear away the original and most absurd plan of partition, it has been thought best to put a Bill proforma in the file of the Supreme Court, the prayer of which is that the partition may be decreed -- that the parties may hold their respective portions in severalty as from the date of the partition deed, and that the land grant may be brought into Court for the benefit of all parties. I should be glad, therefore, if you would get Mr. W. H. Dutton to forward a power (of attorney?) here home on the spot, instructing him to appear and consent to the decree. I regret that time does not allow me to have a close copy of the Bill forwarded with the other papers to you. The objects, however, are sufficiently clear, and care can be taken in sending instructions to appear and consent to the decree that Mr. W. H. Dutton's interest may be attended to. Thus far the affair is plain enough. The deed of lease and re-lease of the remaining one-third may, however, possibly require more explanation than I could convey in the course of a letter. This, therefore, I leave to Mr. F. H. Dutton, who has copies of the accounts on which it is based. I may state that the sheep expedition to South Australia entered into between Captain Finnis and Mr. W. H. Dutton was on the balance of account found to be largely indebted to Captain Finnis. Captain Finnis being liable to various outstanding debts due from the joint concern. In consideration of £3,300, part of the balance, Mr. F. H. Dutton conveyed Mr. W H. Duttons' one-third to Captain Finnis, and that gentleman by the deed of lease and re-lease (No. 5) have as you will see conveyed them to trustees upon certain conditions for the explanation (?) of their creditors, and among others Mr. F. H Dutton to the tune of £7,784 9s 4d. On Mr. F. H. Dutton will devolve the task of explaining this matter to Mr. W. H. Dutton, and of showing the absolute necessity of it as a means of preventing a litigation ruinous to all parties. This task I devolved on him in full confidence that he will make its necessity too apparent for a doubt, and I shall therefore conclude by again reminding you that, however the parties may differ as to this part of the affair, the partition and the conveyances dependent on it are beneficial to all, and may, therefore, be carried out independently of the determination the parties may come to as to the latter affair. C. Mann. — Carrington, Esq, Melbourne.