SECOND READING.

HC Deb 26 June 1872 vol 212 cc223-36

Order for Second Reading read.

MR. GREGORY

, in rising to move that the Bill be now read a second time, said, he considered that it was the duty of the Government to introduce a measure of the kind now under notice, but as they had delayed to take action, the matter was left in the hands of private Members to deal with. The present Bill was founded on two principles—namely, that the present transfer of landed property was too cumbrous, and that it might be readily simplified. The question had been referred to a Royal Commission, and according to their Report in 1857, the cost of transfer amounted to 2½ per cent on the purchase money for large properties, and 10 per cent for small properties. It was therefore evident that the great pressure upon small properties rendered the question an important one, and that the present law seriously hampered the transfer of land from one owner to another. As a matter of practice, the course was as follows:—When a property was sold, the solicitor who represented the party selling had to make an abstract of title. For this purpose, he must collect all the deeds and documents bearing on the title of the property for a period of 60 years, and examine them minutely, and finally make the abstract required by law. That was often a laborious operation. The duty of the solicitor on the other side was to examine the abstract so prepared, and confirm in every minute particular the accuracy of the document. This was a responsible duty, since he would he held liable for the consequences, if any defect afterwards arose from his want of care in the matter. Not only were these proceedings costly and tedious, and in the event of a mortgage or a re-sale of part of the property, the process had all to be done over again, a procedure which was certainly somewhat a scandal to the law. To remedy this the Commission of 1857 recommended a registration, making the deeds then registered the root of the title, and leaving the previous title still open to investigation; but the effect of this was that until the lapse of from 40 to 60 years the certificate would not give an indefeasible title, and, consequently, no present or immediate relief could be acquired under such a system. This being so, in 1859 Lord Cairns introduced two Bills, which, unfortunately, for political reasons, went no further than a second reading in this House, providing for declarations and registry of titles, not indefeasible ones, but such as were usually accepted, and with qualifications which time or events might supersede. In 1862, two Acts were passed; Lord Westbury's, establishing a registry; and Lord Cranworth's, enabling the Court of Chancery to grant declarations of title to applicants. Both had the fatal defect of requiring an indefeasible title, a thing hardly known in practice; for, practically, land was never sold except under special contract or conditions of sale, which stipulated that minute defects, which did not invalidate the title, but could not be cleared away without great delay and expense, should be waived, or should be cleared away at the purchaser's expense, the result being that they were readily waived. Lord Cranwortn's Act moreover, provided that unless a title was made out such as the Court would oblige an unwilling purchaser to accept, the petition for a declaration of title should, subject to appeal, be dismissed, the petitioner in that event exposing a blot on the title to anyone who might search the record. The measure had naturally, therefore, been a dead letter. Under Lord Westbury's Act a highly competent registrar and deputy-registrar had been appointed, as also examiners of title, though he could see no necessity for the latter. It provided for the issue of notices and for an appeal, provisions which he had inserted in his own Bill, and it also required notices to every occupier adjoining the property, and to every person to whom the occupier paid rent. The effect of this was most disastrous. In one case, 135 notices had to be served, and the party served was almost bound to raise dormant questions of boundary, as if he did not, they were for ever barred by the certificate of registration. This obviously tended to evoke petty disputes as to a fence or ditch which would otherwise have never been heard of. In practice this was unknown, as a purchaser always accepted old maps, plans, or descriptions, or the declarations of old persons to whom the property was known as sufficient evidence of its boundaries and identity, and never required or could obtain any greater guarantee of it. He now came to the principle of the measure he had to submit to the House, and in doing so would premise that the interests of all parties would be promoted by any measure which would enable owners of land to transfer it in a ready and comparatively cheap mode; and that although no alteration could be made in the present mode of land transfer without touching the emoluments of his branch of the profession, yet they felt, on the whole, that their interests were mixed up with those of their clients, and that probably the greater frequency of the transfer of small properties would prove as remunerative to them as the present tedious process of investigating title. The principle of his Bill was to enable the Court already existing for the registration of titles to certify such a title as was usually passed from hand to hand in the ordinary transactions of mankind, say—30 or 40 years' title—and to dispense with that mass of notices with reference to the definition of boundaries which had been so fatal to the Act which this Bill sought to amend. He proposed that all parties who were entitled to a registration of title under that Act should be able to apply to the registration office for a declaration of title, and that such application should be proceeded with in all respects subject to the same or similar directions as were contained in that Act with regard to the registration of title. He proposed that the title should be examined by the registrar and assistant-registrar, and that if they were of opinion that a good title was deduced they might accept the title for the purposes of this Bill. He proposed that upon the expiration of the time, and in the events at and upon which the registrar would under the existing Act have completed the registration if the application had been for a registration of title, the registrars should make a declaration establishing the title to the land as finally approved by them, and should state therein the reservations, qualifications, and encumbrances, if any, affecting the land or the title thereto. That declaration of title would be final and conclusive to the extent to which it went—that was to say, subject to all the qualifications reserved by it, and would be binding upon the parties dealing with the land. The Bill provided that the registrars might, in any case where they might think fit to do so, waive the service of a copy of the notice of their intention to make a declaration of title on any particular person or class of persons, and might, at the request of the applicant in any declaration of title, leave the precise boundaries of the land, or any part thereof, undefined, and in that case the provisions of the existing Act, so far as they related to any question of disputed boundary, would not apply. He believed, if the provisions of the Bill were carried out, and a greater freedom were allowed in dealing with such cases, purchasers would gladly avail themselves of it, and that no more disputes would arise respecting boundaries than arose at the present time. Having given an outline of the first portion of his Bill he now came to the second part of it. Some years ago a very valuable Act was passed, called "The Act to facilitate Leases and Sales of Settled Estates." It enabled the Court of Chancery, on the application of persons with a limited estate, to give power for the sale of such estate, or for granting long leases. But that Act required a notice of such application to be given to all the parties interested in the property, down to the first estate of inheritance. It might be that several tenancies for life might be interposed before this whose interest in the property was practically nothing; but all these parties were required to concur in the application. It would readily be seen that one of those parties might refuse to consent to the application unless applicant gave him a sum of money, and without such consent the estate could not be sold, however beneficial a sale might be. This Bill provided that in certain events the Court of Chancery should have the power of directing a sale, if it thought fit, without the consent of these parties. The Bill also contained a provision with respect to encumbered estates. Some estates were so burdened with various charges and mortgages that the tenants-for-life received little or no income from them. These estates consequently went to ruin and became scandals to landed proprietors generally; and in such a case he thought it would be an advantage to all if a portion of them were sold in order to relieve the remainder. The first mortgagee might apply, for power to sell an estate, but he did not choose to do so because there was always sufficient to pay him, and he would say—"I will give no facilities for a sale." The second mortgagee might file a Bill to have the estate realized, but what had he to do first? He had to tender the money due to the first mortgagee, or to bring it into Court, and he must do that without seeing the title of the first mortgagee. The amount due to the first mortgagee might be £20,000 or £50,000, and in such a case as that it was a large sum to risk upon an insecure foundation. The Bill, however, provided a remedy, for it said that a mortgagee or other encumbrancer under those circumstances should have the power of applying under the Settled Estates Act to have all or any part of the estate sold for the purpose of discharging the encumbrance thereon, and that the Court of Chancery might make an order, upon such application, without the consent of such persons as were required to consent to any application for the exercise of the powers of that Act. By that plan portions of a heavily encumbered estate might go into the hands of persons who were willing and able to improve them. His Bill did not interfere with any scheme which the Government—if they had a scheme—might introduce hereafter. It was a simple and feasible scheme, and he hoped the House would adopt it.

MR. KENNAWAY

, in seconding the Motion for the second reading, said, he thought the hon. Gentleman had shown that too much was attempted by Lord Westbury's Act. Parties applying for registration under that Act were required to make out points which the most exacting purchaser would not ask to be made out. The proper course then would be to make the existing machinery more useful, and he thought the time had fully come to adopt such a course. The country did not want indefeasible titles. It should be enough to entitle a landowner to registration of his title that he could make out a good selling title. A very serious attack had been made upon the power of settlement, and many hon. Members were anxious to sweep it away altogether. That he was not prepared to do; but it was the duty of that House to inquire and see how the evils com- plained of could be met without going the length of abolishing settlement altogether. On the whole, the law had not worked any great detriment to the country; but there was no doubt there were cases which gave a handle to the attack that was made on the law of settlement. The Act of 1856 was a step in the right direction, and had proved beneficial where it had been taken advantage of. Since the passing of that Act it had been felt that every facility should be given for increasing the productions of the land, and of properly housing the people. Landed proprietors felt they must have power of dealing with their land, and a Bill of this moderate character should receive general approval. He particularly approved of the provisions of the Bill, which would enable the second mortgagees in encumbered estates to put their powers into operation after giving due notice to all parties interested, and showing to the Court that the estate would not be injured, and hoped that if the Government were not able to take charge of the whole Bill they would adopt that portion.

Motion made, and Question proposed, "That the Bill be now read a second time."—(Mr. Gregory.)

MR. STAPLETON

opposed the Bill. While admitting that anything which would simplify the transfer of land would be an advantage to the community generally, he was afraid that the establishment of a Court of registration of title would not meet the difficulty, because those who had an undeniably good title would not incur the expense of registering, or run the risk of creating flaws by some technical omission or mistake in the operation of registration, while those who had property, the title of which was doubtful, would shrink from applying to the Court for a declaration, however desirous they might be to obtain it. He thought all that could be done in that way was the extension to the whole kingdom of the registration of deeds, which had already worked so successfully in Yorkshire, as well as in Scotland and Ireland. There was, however, one class who would profit by the change—namely, "land obbers"—men who having bought were willing to sell on the turn of the market; but he was not inclined to give them any encouragement. He thought it was not for the advantage of those who lived on the land that it should be constantly changing hands. It appeared to him that the provisions contained in the latter part of the Bill, though he approved of their object, were not judiciously conceived. He objected to the power given to an incumbrancer to cause the sale of a settled estate. An incumbrancer could have no right beyond those which he had stipulated for in the deed creating his incumbrance. On the other hand, he would go further than the hon. Member in aiding the tenant-for-life to get rid of in-cumbrances affecting the inheritance. In his opinion, they should follow as nearly as possible the precedent furnished by the statute referred to in that clause in which it dealt with agricultural leases. A tenant-for-life was enabled to grant a lease for 21 years, not only without the consent, but without even giving notice to any of those who came after him in the settlement. Neither did he require the authorization of any Court or public authority whatever. In the case of the sale of settled estates, in order to pay off a mortgage, it was impossible to dispense with some public authority. There must be some one to see that the mortgage existed; that no more of the estate was sold than was reasonably sufficient to secure enough to pay off the mortgage, and to determine—as it would be impossible to keep to the precise limit—what reasonable margin should be allowed to secure that the mortgage was paid off, and that the residue of the purchase money was invested so as to follow the same uses as the remainder of the estate. For these purposes, either the Court of Chancery or the Tithe Commissioners must be resorted to. But he (Mr. Stapleton) did not see the use of giving notice to the persons who came after the tenant-for-life in the settlement in ordinary cases. It was inviting their opposition. Opposition meant expense; but, if the thing was to be done at all, it must be done cheaply, as there was no such saving possible as would warrant a large expense. If the public authority involved thought the proposed sale unwise, then it might refuse to proceed until such notice had been given. But, unless that was the case, the discretion of the tenant-for-life, should not be overruled by those who came after him. It might happen that the successor's interests were op- posed to those of the tenant-for-life. He might be possessed of other property, and might treat lightly the embarrassments which weighed heavily on the tenant-for-life. He might say that he was unwilling to have the extent of territory diminished; and might refuse to assist the tenant-for-life out of his embarrassments, although they were such as to prevent his discharging his duty to the land. In such a case, it was the actual possessor whose views and interests ought to prevail. They would coincide with the public interest.

MR. HINDE PALMER

said, he should not have any very great objection to the Bill if it was likely to become a workable measure. The Bill professed to effect, though in a very small way, a portion of law reform which it was desirable to accomplish; but if it were passed, it would be found not more workable in reality than the present Land Registry Act, which the Bill had been introduced to improve. One of the great objects desired was to facilitate the transfer of land; but the Bill was but a small step in that direction, because it was mainly confined to the registration of title; and he was afraid that if the question were introduced piecemeal it would be a hindrance to the passing of a great and comprehensive measure by the Government, who had only been deterred from proceeding with law reform by the pressure of other business. The mere registration of a title, with all its encumbrances and reservations, would rather weaken than strengthen the title, by making its defects—now known only to the owner and his solicitor—known to all the world, and be declared on the face of the title. And there was this difficultyt, hat before registration the holder must prove a good title before the registrar, which really was an indefeasible one, and such an one as the Court of Chancery would compel a purchaser to accept. If the Bill were to go beyond the second reading, it would require a great deal of careful revision before it could be brought into successful operation. His hon. Friend went too far, because by two clauses at the fag-end of the measure he contemplated the establishment of an Encumbered Estates Court in this country. The Bill was not only impracticable, but it was dangerous to some extent, because it was so crudely drawn with reference to the rights of third parties. The law of real property and of settlements required alteration in many respects, and he thought it would be wise to pause for one or two years before dealing with this important subject in such a patchwork, piecemeal manner, and then, when the pressure of Parliamentary business was less severe, to pass a comprehensive scheme, which should improve the real property laws and facilitate the alienation and transfer of lands. For those reasons he should vote against the second reading.

MR. DICKINSON

said, that though feeling it somewhat ungracious to oppose a Bill for the amendment of the law, which to some extent he admitted to be an amendment, he would divide against the second reading should a division be taken upon it. He denied that he had ever heard it advocated on that (the Ministerial) side of the House that settlements should be abolished. The objection entertained by himself and his hon. Friends was to the law of entail. He urged that the Bill should not be proceeded with, but that the House might be allowed to look forward to an amendment of the law, by which all existing defects would be got rid of, and which the Government had shown it was by no means averse to introduce. With regard to the question of settlement, he saw no difficulty in continuing it within proper limits; but he held that the present limits were too wide.

MR. WREN-HOSKYNS

said, he was afraid that what was called "facilitating the transfer of land" was rather a tinkering of the present law—trying to make the road smooth while the evil itself was not removed. What he wanted was, not "to facilitate the transfer of land," but to make the land itself transferable. It was to the great bulk of the buying and selling community that the difficulty in the matter occurred. There were no means of dealing with small quantities. In a case with which he had to do, the purchase-money of a small cottage was £90, and the charges of his solicitor for looking into this little transtion was within a few shillings of £20. He had known other cases in which the costs were so utterly disproportioned to the value of the purchase as to convince him that it was impossible that large classes who otherwise would be buyers and sellers could deal with land at all. Here were our agricultural labourers in a state more or less of advanced strike because their wages were so low that they could scarcely keep body and soul together, and they had not a sufficient locus standi or connection with the soil to make them care where they were located. Was it fair because a man was poor that he should be absolutely denuded of all connection with the land? If a man had £50, why should he not be able to invest it in the land? He regretted that the views of the legal profession were not so wide as to induce them to facilitate transactions in the transfer of land; but in foreign countries, where it was everywhere necessary to have recourse to a notary, the number of the transactions made up for their want of magnitude. He was sorry he could not congratulate his hon. Friend upon his success in this attempt, because he was sure the Bill would be inoperative; nor would it enable the measure, which it was intended to supplement, to be of any use to the public. Finally, in the interests of those he represented, much as he thanked his hon. Friend for his exertions in the matter, he felt constrained to oppose the Bill.

MR. COLLINS

said, it was not very likely that strikes among agricultural labourers would be cured by passing a Bill to facilitate the transfer of land; and they might dismiss from their minds all idea of a peasant proprietary in this country, or that poor farmers would take to investing their money in land. As long as land paid only a beggarly 2 or 2½ per cent, and as long as it sold for 35 or 40 years' purchase, the hon. Member who had just spoken would not find farmers to invest their capital in that way. Land in this country was a luxury, and would become more and more so. A man did not buy land to make profit out of it, but because he liked to have visible signs of wealth around him, and to transmit it to those who were to come after him. Those were motives which acted very much on Englishmen, and unless they adopted the French system the tendency in England would be that the land would get more and more into few hands. They heard a great deal about land laws, as if the laws with regard to the settlement of land were wholly different from those with regard to the settlement of money. But the only difference was, that in the case of land, they could, execute an entail deed, which, if there was no disentailing deed, would run on for ever. The question of settlement was a very wide one, for it went to the root of their whole social system. Anyone acquainted with lawyers' chambers knew that there were more settlements which dealt with money than with land, and if they dealt with the settlement of land, they must deal in a similar way with the settlement of money. There could never be a free transfer of land consistently with the different interests involved, unless the whole land of this kingdom were to be registered; and, what was more, there must be one or two persons on the register who should be able, rightly or wrongly, to give an indefeasible title. That was the system now prevailing with regard to personalty; the law only recognized for the purposes of transfer stock the person whose name was on the register. If they wished to alter the land laws, it was not by altering the power of entail, of settlement, or of bequest, but by enacting that the holder of the legal estate should be able to give a good title, making him civilly or criminally responsible if he defrauded those who had any beneficial interest. It was a wide question; but if a change were really wanted, a much more sweeping change was necessary than was now proposed; and at the present period of the Session it would not be wise for the House to assent even to the second reading of this Bill out of good nature or courtesy towards the hon. Member who introduced it.

THE SOLICITOR GENERAL

observed, that although a good deal had been heard about the transfer of land very little had been said about this little Bill. It dealt with a very small technical point or points, and was objectionable on that ground; but if it were likely to be a good useful Bill, he should not put forward such an objection. He had several reasons for objecting to the measure, and agreed with the hon. Members for Hereford (Mr. Wren-Hoskyns) and Boston (Mr. Collins) that the transfer of land was for too important a matter to be dealt in this piecemeal manner. It would be a mistake to read the Bill a second time merely from good nature and because a Gentleman had taken considerable pains to improve the state of the law, when there was no chance of the measure becoming law during the present Session. The hon. Member for Sussex said one of his great objects was to enable a landowner whose title was not marketable, but who had what in law was called a good holding title—that is, a title not likely to be disturbed—to obtain such, a registry of title as would enable him to sell the estate. Now, on looking at the provisions of the Bill, he could find no provision of the kind. If that were the main object of the Bill, it was not so expressed. The Bill proposed that the title should be examined by the registrar and assistant registrar, and registered by them if they were of opinion that a "good" title had been made out. Now, the word "good" had acquired a precise and technical meaning in this connection. It meant, in fact, a marketable title, meaning thereby a title which could be forced upon an unwilling purchaser. If, therefore, the Bill became law, it would not enable the registrar to convert what he supposed to be a good holding title into a marketable title. Even if the clause were altered, and if for the technical words "good title" the words "good holding title" were substituted, the effect of the Bill would be mischievous, for if there was one thing more difficult than another in law, it was to decide when a title not strictly marketable was a good holding title. There were many titles which, through some accident—the loss of a document, perhaps, or a difficulty in producing a certificate—were good holding titles, though you could not prove to the satisfaction of a conveyancer that there was a "good" title. But if you wanted this question properly decided, you must have a Judge to do it. That had been the course pursued in establishing the Landed Estates Court in Ireland; and even from the decision of the Judge of that Court there was an appeal to the Court of Chancery and the House of Lords. Why should we be treated worse in England than in Ireland? According to the Bill, however, the registrar was to determine once for all whether a defective title was a good holding title. Under Lord Cranworth's Act, before registration of title, notices must be given to parties interested, including the neighbouring landowners. There was not the slightest injustice in such a provision, because your neighbour's boundaries might be encroached upon, and it was only right he should have an opportunity of protecting his interests. The fatal objection to the working of the Act was not the requiring of such notices, which were inevitable, but the consequent expense, because it might be that if the question of boundaries arose, the result of the attempt to register would be a lawsuit. In Ireland the existing Act worked well when you wanted to sell, but did not work at all when you did not want to sell. In any case the proposal to take away this jurisdiction from a properly constituted Court and transfer it to a registrar could not be entertained with a due regard to the rights of the neighbouring landowners. You might make things cheap, but it must not be at the price of committing injustice. It was true that one of the sections of the Bill provided for a declaration of title without any definition of boundaries. How the title could be declared without defining the boundaries of the estate he did not know; it was a most wonderful notion, and the remedy would be far worse than the disease. Lord Westbury's Act had been described as a bad Act, because it provided for a reference of the title to the examiners appointed by the Court of Chancery, who were eminent conveyancers, and not to the registrar. Now, it was certainly better to refer questions of this importance and difficulty to practising conveyancers rather than to one who had relinquished that branch of practice. He had had a long experience of conveyancing, and knew something of it; but he had given it up for 10 years, and should not now consider himself competent to advise upon a long and complicated title. If he bought an estate, he should send the title to be examined by a practising conveyancer. The proposal in the Bill, however, was to send titles from those who did understand them to those who did not. That would not be an improvement in the law; it would be a change for the worse. Sections 17 and 18, too, proposed to amend the Leases and Sales of Settled Estates Act, and were quite foreign to the other purposes of the Bill. It had also been said that a second mortgagee had not the power of sale. But under the Act of Lord Cranworth a mortgagee had such a power, unless he expressly contracted himself out of the Act; and therefore the House was now asked to give the power of sale to a mortgagee who must have expressly covenanted for valuable consideration —perhaps the payment of higher interest—that he should have no power of sale. The Bill was open to other objections, but he hoped he had said enough to convince the House that it ought to go no further, more especially as there was not the least likelihood of its passing.

DR. BALL

said, he thought his hon. Friend (Mr. Gregory) had done good service in bringing the subject under discussion, and hoped the Solicitor General would apply his mind to the question of amending the law in this particular, and of making Lord Westbury's Act a really effective measure. The Government had no excuse for not amending this branch of the law so long as they had the assistance of his hon. and learned Friend.

MR. GREGORY

said, that after the expression of opinion which had been given he would not put the House to the trouble of dividing.

Motion, by leave, withdrawn.

Bill withdrawn.