§ LORD BROUGHAM rose to call the attention of the House to Mr. Fawcette's petition, presented on the 12th of June, and to beg the attention of their Lordships to the great difficulty and ruinous expense attendant on the practice of the law relating to the transfer of real property. Ten days ago he presented that petition from his learned and able friend, who had been many years a conveyancer of great eminence, was now a magistrate of the county of Cumberland, and who, with the late Mr. Aglionby, had prepared the Sum- 859 mary Jurisdiction Bill, which had effected so great an improvement in our criminal law. Their Lordships might recollect that he (Lord Brougham), in presenting the Carlisle petition, declined to bring in the Bill, conceiving it should originate in the Commons. Mr. Fawcette, in his present petition, addressed that House on the subject of the great grievance which landed proprietors and persons who wished to become purchasers of land suffered, owing to the state of the law and practice relating to the conveyance and transfer of real property. Mr. Fawcette stated, in support of a plan he proposed for a change in the law of real property, and particularly of registration of titles, his own experience as steward of a manor. He said that he had been for thirty years steward of one of the largest manors in England, containing some 400 or 500 tenements; during his stewardship nearly every tenement had been transferred by sale, or exchange, or death; and in every case the transfer was effected by means of a deed which contained on an average only 190 words; that there was no description of the parcels, except the number of the tenement in the manor book, and where it was situated; and never during the thirty years he was steward of that manor had any question of boundary, or identity of the parcels arisen; while the expense of the transfer amounted to—what would their Lordships think, who were constrained to pay for the transfer of one acre or a thousand acres £700 or 800? Why, to 7s. He did not mean to say that the expense of inquiry into title would ever be so small in the whole system of transfer of land; but he did say that this proved, at the very least, that a great and salutary change might be made in the law with respect to the conveyance of real property. The Master of the Rolls in Ireland had said, in his evidence before the Commissioners appointed to inquire into the state of the law of real property, that our system of conveyancing, and, indeed, our whole law relative to the transfer of real property, was one which might have been devised expressly for the purpose of rendering land as little an article of commerce and as little vendible and purchaseable as possible. The Legislature, the Courts, and the lawyers had created the system. [A Noble LORD: And the Attorneys.] His noble Friend said, that he ought not to forget the attorneys; he had included them among the lawyers. After the subject 860 had been mooted in the other House, Bills were sent down from their Lordships' in 1852 and 1853, to that House, and were referred to a Select Committee. The result was a recommendation of the appointment of a Commission of learned lawyers, with some laymen, to inquire into the whole question connected with the conveyance of land. A Commission was accordingly appointed, and made a report, containing most valuable information and a number of most useful suggestions. Nothing could be worse than the present state of the law on this subject. Land, instead of being as easily transferable as bank-stock, was, owing to the principle and practice of our law, the most difficult article of transfer. In fact, it was in some cases actually impossible to transfer it. He, therefore, heartily rejoiced to hear that the Commission had recommended the introduction of two most important measures with respect to this subject, and he hoped his noble and learned Friend on the woolsack would comfort the House by letting them know that these measures were not only in the course of preparation, but were in a forward state. It was most judicious of the Commissioners to recommend that along with a measure for the registration of titles, there should also be a measure for the improvement of the law respecting the conveyance of laud. Generally speaking, these important measures would meet with no great opposition, There might be some difficulty with respect to the registration of titles, from the want of the proper charts and maps. The Select Committee of their Lordships to whom the subject of registration was referred some years ago, had found that a great difficulty. But the Tithe Commissioners possessed a great body of maps and charts, as did the municipal corporations; so that he would fain hope there might be found a sufficient body of maps and charts to render legislation possible. He begged to direct their Lordships' attention to the working of the Encumbered Estates Court in Ireland, which had done so much good in that country—a point on which he had been mistaken when he at first supposed that it would not lead to beneficial results. In the period of five years ending in 1854, no fewer than 2,400 cases were tried and disposed of by that court. Of these 1,448 terminated in sale, and the value of the property sold amounted to £14,133,000. Great advantages were derived in Ireland from that court. In the first place, there was the excellent and indefeasible Parlia- 861 mentary title to land which it afforded; then there was the cost of proceeding which was exceedingly light; but if it had been much larger, it would have been as nothing compared with the incalculable advantages obtained under the Act. So much were these advantages appreciated, that in many instances frauds were committed, in order to bring property under the operation of the Act. Perhaps they might be called pious frauds, though on that point he was not called to give an opinion; at the same time he might say, that as he did not believe there was such a thing as a white lie, so neither did he believe there could be a pious fraud. But, at any rate, frauds were committed. People trumped up debts—signed bills, for example, when there were no transactions, and made it appear that there were incumbrances on property, so as to enable them to come within the scope and the advantages of the Incumbered Estates Court. Now, why should inestimable benefits like these be confined to incumbered estates? Why should not the owners of unincumbered estates have similar benefits? The Commissioners on the law of real property had expressed an opinion in favour of the extension of the principle of the system of the Incumbered Estates Court, so that there might be some such court for the transfer of all property; and it was suggested that it ought to be done by an improvement in the procedure of the Court of Chancery. He thought the Commissioners were well advised in saying that some such system should be adopted in this country, though on the manner of making it there might be differences of opinion. The course recommended by the Commissioners was, that two Bills should be prepared, one for the improvement of the law on the transfer of land, and one for the establishment of a system of registration of titles. Whether we should ever get the benefit of a Parliamentary title to estates he could not say; but he had great hopes that, to a certain extent, this would he effected, and that there would be some statutory guarantee of title to land. The proposal of the Commissioners was, that as by the Acts passed many years ago an indefeasible title is given to all land purchased and sold under the Ordnance Department, compensation being given if within a certain period a claim was put forward for the land, the same principle might be applied generally. In other countries great facilities are given for land 862 transfer, and he saw no reason why they should not go across the Channel to France for an example of legislation on this point. In that country the period of "limitation," as it was called, was ten years, whereas in our own country, it was thirty, and in many cases forty years. It was no doubt invidious to be asked to copy foreign institutions, but when those institutions were found to have produced great good, as the laws regulating the transfer of land in Ireland, in France, Belgium, and America had done, it would be most unwise not to avail ourselves of the examples which those countries afforded. He hoped the noble and learned Lord on the woolsack would be able to assure the House that Bills upon this subject were in a forward state, and would be speedily laid before Parliament. He would only add, that it was of the greatest importance that those who were intrusted, not only with the examination of titles to property, but who were to act as officers of courts where such titles might come in question, should possess a complete and accurate knowledge of their profession, and therefore he trusted that the Inns of Court would see the necessity of requiring all persons to undergo a compulsory examination before being called to the bar.
THE LORD CHANCELLORsaid, he would admit that the subject introduced by the noble and learned Lord was both difficult and important. One of his first acts after he received the Great Seal at the beginning of 1853 was to ask their Lordships' sanction to a measure for facilitating the transfer of real property by establishing an effectual system of registration. That Bill, as his noble and learned Friend had said, was passed by their Lordships and sent down to the House of Commons; but in consequence of objections raised against it there it had not become law. The subject was referred by the House of Commons to a Committee, and they recommended that a Royal Commission should issue to consider the existing state of the Law, and to report their opinion as to what alteration was necessary. Towards the end of the same year that Commission was accordingly appointed, and the difficulty, as well as the importance of the subject might be inferred from the fact that though the Commissioners were not idle, they were occupied the whole of the years 1854, 1855, and 1856, and part of 1857, before they were able to make any Report satisfactory to themselves. Pending that Commission, and 863 until he knew what they might recommend, he did not think it would have been proper for him to originate any measure. Nevertheless, in consequence of the length of time that elapsed before that Report was prepared, at the close of last year, he had prepared a measure which he thought could not possibly be at variance with the recommendations which the Commissioners might make, while, of itself, he believed the measure would be attended with great public benefit. That Bill he should soon be in a position to lay on their Lordships' table, and he would, with their permission, briefly explain its outline. One of the greatest sources of complication in reference to the transfer of real property was the mode in which mortgages, judgments, and other charges were dealt with. He proposed that when mortgages and judgments were given as securities charged upon real estate, the present complicated mode of procedure should cease; that any party being possessed of real property might charge upon it £5,000, £10,000, or any other sum; and instead of the instrument by which the charge was imposed, containing all the complicated provisions relating to power of sale, power of appointing receivers, and other matters, he proposed to enact that the mere charging of the land should carry with it as incidents all those provisions which were usually inserted in mortgages, and charges of a similar nature. He proposed, also, that there should be a register in the Court of Common Pleas of all such mortgages and charges, which would show at once whether the property was incumbered or not, and any one who proposed to purchase or lend money on land might ascertain exactly what charges were upon it. Considering the various uses to which real property was applied—as a future provision for families, marriage settlements, and other purposes—it was in vain to expect that they could ever make the transfer of such property as easy as the transfer of Bank stock; but at the same time there could be no question that the law in this respect might be materially improved. He pledged himself that during the recess the subject should receive full attention from the Government, and if, by the plan recommended by the Commission or by any other means, he could see his way to a real improvement, he should be prepared to introduce some measure for the purpose of carrying it out.
LORD CAMPBELLexpressed his earn- 864 est hope that the law respecting the transfer of real property might be improved, and that it admitted of improvement there could be no doubt. He had hoped for some years that he should go down to posterity as the author of a general measure for the registration of real property; but that hope, like many others, was destined to disappointment. He was glad, however, to find that the cause had not been abandoned, and he should be most willing to lend his aid in carrying out such an improvement as that which had been suggested by his noble and learned Friend. Another improvement he had taken much interest in was the compulsory examination of students for the bar, and that also he hoped yet to see carried out.
EARL FITZWILLIAMsuggested that in any measure that might be enacted for establishing a new and more simple form of conveyance, not only should the new form be made legal, but the old form declared to be illegal. The certainty that the old form would not be recognized in law, would induce people generally to adopt the new form. He trusted also that no system of registration would be established that would afford facilities for gratifying mere curiosity.