§ THE LORD CHANCELLOE (Lord HALSBURY)My Lords, the subject to which I have to call attention is one of 28 very great importance, and has for considerably more than a quarter of a century occupied the attention of those who were best qualified to consider and to deal with it. I should feel great diffidence in speaking to your Lordships on the subject if I thought the previous legislation with regard to it had been so complete a failure as it is sometimes said to be. But I do not think it is accurate to describe the previous measures as failures. I believe it would be more true to say that they were steps in advance, enabling us to accomplish what they undoubtedly failed to accomplish. It had been my intention more than a year ago to introduce a Bill on this subject, and for that purpose I obtained from your Lordships' House a Bill, which afterwards became law, to suspend the operations of the Land Registry in London; so that in the event of your Lordships passing legislation on the subject of land registration, the Registry might be made part of my scheme. The Bill which I have to present to your Lordships now proposes to deal in two ways with what have been found to be defects in the existing system, or which, at all events, were matters which it was not thought desirable to deal with on previous occasions. Public opinion was not then ripe on the subject; but attention has since been directed to it in various ways. I find that since I gave Notice of my Bill at the beginning of last year a great variety of schemes have been under discussion. There has been an interesting series of letters in The Times, and several books relating to the subject have appeared. I mention these various publications and proposals for this reason. I have had the pleasure of reading them; but I cannot say that I agree with them all, because they do not agree with one another. Nevertheless I find in all of them considerable support for the proposals which it was my intention to make a year ago. There are several matters which I cannot doubt will be subjects of debate when the second reading of the present Bill is moved; but I believe that, instead of defending point by point the proposals I have to make, it will be better for me now to state in broad outlines the nature of the scheme. The first proposal is, that there shall be a Land Registry, and that that Land Registry shall not be something in the 29 nature of a legal office in London, but shall be a Board consisting of persons experienced both in conyeyancing and in organization and administration. It is to be constituted in London, and what I particularly wish to point out is, that the scheme is intended to be capable of greater expansion. The great difficulties in the way of establishing a system of registration hitherto, have been the magnitude of the operations contemplated and the necessity of applying the system all over the Kingdom. My proposal is, that branch offices shall be established from time to time, and that the work shall be done gradually. As soon as an Order in Council says that a registration district shall be established, certain consequences will follow which I will now proceed to describe. The Act of 1875, although I do not admit it has been a failure in the sense in which some people describe it, undoubtedly did not fulfil the expectations of its authors in causing land to be registered to the extent that was anticipated. One chief reason for this was that the registration was voluntary. It is not true to say that compulsory registration would be an interference with the liberty of the subject. It would be just as true to say that the Statute of Frauds or any other statute regulating the validity of certain contracts was an interference with the liberty of the subject. The compulsion which I propose is that upon the next transfer of land—the next time the owner of land proposes to give a legal interest to his transferee—it must be brought upon the register. When I first proposed that a system of registration should exist I felt very much pressed by the question as to what was to be registered, and whether it was possible to give a title which should include the boundaries. On that question my views have been considerably modified by what I have learnt since. I have heard with great surprise that there exists at the present moment a register in which every yard of land in this country has been registered by a tribunal which has worked noiselessly and inexpensively. The Land Tax Commissioners have a register of every yard of land in this country, and it has been formed with a degree of accuracy and precision that to me is absolutely astonishing. The Commissioners have from time to time without remuneration, 30 without expenso to anybody, been constantly exercising jurisdiction, and deciding questions of adjoining boundaries. That system exists in every county of England. I think there are 380 land tax districts in England in which that system exists. Under the Act of 1875 there are two or three different things which may be registered. I do not think anyone would recommend the registration of assurances as distinguished from registration of title. Under Lord Cairns' Act a person can register either an absolute or qualified title, and that Act, it appeared to me, afforded the materials on which a registration of title might be founded. It appeared to me that in the present state of the world's history, and with the present spread of knowledge and the mode of telling people what was being done, it was possible to avail one's self of it and to make a possessory title in a comparatively short period become an indefeasible title. The proposal I have to make is this, that when a person shall have given such notices as the Land Board shall prescribe—by advertisement or otherwise— that person shall after a period of five years be able to apply to the Land Board for a certificate of indefeasible title. My Lords, that is the nature of the proposal. It seems to me that the same operations might or might not, at the option of the person desiring his title to be registered, apply to boundaries. The boundaries might also be so registered as to obtain an absolutely indefeasible title for them at the end of the five years. My Lords, as your Lordships are aware, the Act of 1875 was in some respects imperfect from the state of the law at that time; but the Conveyancing Act and the Settled Land Act have altered that state of the law, and have facilitated a measure for the general registration of land. I cannot expect or hope that the subject which I am about to introduce to your Lordships' notice should pass without debate. On the contrary, in the discussion which may take place on the second reading and in Committee, I look to your Lordships for the assistance which will enable a measure to be perfected, which, if it can be perfected, undoubtedly is for the advantage of all. My Lords, I should say, in the first place, that, leaving absolutely untouched the power of settlement and will, I propose to make the devolu- 31 tion of real property the same as if it be personalty, and to introduce a real representative, In the first place, the executor would be made the real representative, independently of any question of intestacy. As to the subject of estates tail there will be two proposals in the Bill. First, in respect to existing estates tail, I propose that wherever a person of full age has power without the consent of anyone else to enlarge his estate tail by deed duly enrolled, then the law shall do it for him. I propose next that estates tail should not be created in future, and that the Statute which is known as "The Statute of Westminster the Second" should be repealed. My Lords, that of course may be a serious subject of debate; but I believe that some such alteration will be found necessary in order to render the other provisions of the Bill possible or reasonable. I believe it will be found to the advantage of the owners of property that all property should be subject to the same legal incidents, and that if there is to be an attack upon property it will be resisted with much greater force, if it be possible to say that it includes all property and not merely property which has any peculiar privilege, because then it can be said that an attack on property is an attack on property of all kinds. My Lords, the other proposals in the Bill are comparatively immaterial, inasmuch as they merely provide the machinery ancillary to the main provisions. One provision is founded on the analogy of the plan adopted in some of the Australian Colonies, and it is in the nature of an insurance fund. This can be done without any considerable expense to the State or to those who desire to transfer their land. The effect of it will be to make the working of the Bill much more easy, and the experience of the Australian Colonies shows that so small a sum as a halfpenny or even a farthing in the pound will be found amply sufficient to provide a fund for all such contingencies that may arise from fraud or otherwise in relation to land register. I will leave the Bills in your Lordships' hands, hoping I may receive the assistance of my noble and learned Friends, and hoping that we shall be able to do that which we all desire—to cheapen and facilitate the transfer of land. At the present time the holders of land are are much less disposed to continue to 32 hold it than in former times. It would be a wise and prudent course to facilitate any system by which land can—with advantage to both vendor and vendee—be distributed, and I therefore implore your Lordships' co-operation in the Bill which I now propose to the House.
§ Bill to further simplify titles, and facilitate the transfer of land in England —Presented (The LORD CHANCELLOR.)
THE EARL or SELBOENEsaid, that, although that was not the stage for a discussion of the Bill, he would venture to say at once that it was a very large and important measure. There were two points on which he had heard the noble and learned Lord (Lord Halsbury) with great pleasure, because in his (Lord Selborne's) own contribution to the working out of that great problem, he certainly arrived distinctly at those two conclusions. The first was, that if they wanted to do anything in that matter, they must determine to make the measure compulsory, provided always the country was willing to pay for the necessary machinery. It was idle, as long as it was left optional, to talk about general registration or real simplification of title. The second point was, that he proposed to take a short period of time within which, by the process of the registry, and after all proper notices, a possessory title could be converted into an absolute title. He had always thought that any measure of registration which did not tend, within reasonable limits of time, to the clearance of title would fail to accomplish the object of greatly cheapening the expense of transfer. It was not possible, without a general examination into all the titles of the Kingdom, to clear them at once. But it was possible to say that, after a limited time and with proper precautions, the title might, by proper authority, be declared absolute. It did not alarm him in the least that his noble and learned Friend should turn estates tail for the future into fee-simple estates, for it was only applying to real estate the same rule which was now applicable to personalty. Notwithstanding that rule, no difficulty had been found in making reasonable settlements of personalty; and, although they could have no entails, he did not think there would be any any such difficulty as to land. He owned that if his noble and learned Friend 33 had prohibited all settlements it would have been a different matter, because it would have made it necessary for every provision for members of a family out of land to take the form of charge or mortgage, which anyone who was conversant with the subject would know might be an alteration for the worse. There was one other matter—the Law of Descent. Public opinion in this country had long since been in favour of some alteration. Without any hostility to the principle of primogeniture, he had no hesitation in saying that if an alteration were made in the present law, it must be in the direction proposed. But he hoped that part of the Bill which related to a real representative would be found to be very carefully framed; because he could not think it possible to vest enormous landed estates in persons having only a fiduciary character, and no beneficial interest, under obligations similar to those which now attached to executors, without obstructing for a considerable time the proper discharge of the duties attaching to landed property, and preventing the acceptance of such trusts by those who might be the fittest persons to undertake them, especially in the present state of the market for land.
§ LORD HERSCHELLsaid, that he had listened with great interest to the statement of the noble and learned Lord on the Woolsack (Lord Halsbury), and would give him every assistance in his power in dealing with this important and difficult subject. He rose, not for the purpose of criticizing the statement, but to ask for an explanation on one or two points. He understood the noble and learned Lord to state that, after a title had been registered for a certain number of years, it became indefeasible. Of course, the matter would require great care if the real owner was to be precluded after five years from claiming the estate unless he was to be given some kind of notice. He did not quite understand, if an indefeasible title was to be given to the person who had been on the register for five years, what was the use of the insurance fund. If he bought a piece of land and took a title on the register, and it should afterwards turn out that the person who conveyed to him had no real title, would he get an absolute title; or would he get compensation out of the insurance fund and the real owner get the title to the 34 land; or did his noble and learned Friend propose that the process should be reversed? The Australian, system was that if a person purchased a piece of land and was placed on the register, and it turned out that the vendor had no real title, the purchaser obtained no absolute title, but compensation out of the insurance fund. The real owner got the title to the land. His noble and learned Friend seemed to reverse that system, and proposed that the person last on the register should hold the land, and the real owner should have compensation out of the insurance fund. It was very questionable whether the Australian system was not better. He entirely approved his noble and learned Friend's proposal, that realty should descend in the same way as personalty, and it was very important to carry out that principle, as it was one for which many had long contended. It was quite true that anyone could make a will dealing with land of which he was owner as the law now stood; but it was also true that many persons did not make wills; and, as a Law Officer, he had been very much, struck with the many cases in which property escheats to the Crown for want of a will in case of illegitimacy, showing that intestacy was common. He had known extremely hard cases under the existing law, and he rejoiced that the Lord Chancellor proposed to make this change. In one case he was acquainted with a labouring man had invested almost his entire savings in land, and died suddenly without leaving a will. The result was that a distribution of his property took place which inflicted very great hardship upon some of his family, the distribution being in a manner which it was quite certain the man himself would never have dreamt of making. He would like to know who was to be registered. Was it intended to register a settlement of life estate, showing the different persons having title, or only to register the person or persons owning the fee? With regard to the cost of registration, he was persuaded that unless it was made simple and cheap to place a title on the register registration would not take place, and people would trust to getting equitable titles. It was essential to remember that this proposal was not made for the benefit of existing landowners; but because it was believed 35 that, in the public interest, there should be a simple means of passing land from one person to another. Previous attempts at registration had failed, because registration was made so expensive that no inducement was given to register. They must now endeavour to reverse that process by making registration as cheap as possible. The Lord Chancellor stated that power was reserved in the Bill, in the event of any person having been deprived of land to which he was entitled, to enable the Court to order compensation out of the insurance fund or the restoration of the land. The legal owner was always to be the person registered. It was not every person who had been on the register for five years who could at the end of that time ask for an indefeasible title, but only those who had complied with the provisions which the Land Board would enforce. The Bill was supplemented to, and would be incorporated with, the Act of 1875, in which there were a variety of provisions under which any person who had a right to come on the register might, by his caveat, have a case submitted to the High Court of Justice, whose decision would be final.
§ LORD HALSBURYsaid, that with reference to the point his noble and learned Friend (Lord Herschell) had referred to, power was reserved by the Bill, in the events mentioned, to the Court empowered to deal with the matter either to order the real owner of the land to receive compensation out of the insurance fund, or to order the land to be restored to him. With respect to the person who was to be registered, he might say that it was to be the legal owner who was always to be on the register. Under the Settled Land Act, the tenant for life had power to dispose of the estate, the purchase-money being paid to trustees for the benefit of those entitled. Registration, therefore, would make provision for those circumstances. All tenants for life would be entered on the register, so that the whole condition of an estate would be seen by looking at the register. With reference to the period of five years required for obtaining an indefeasible title, the provisions of the Bill were of this character. It was not every person who had been on the register for five years who could, at the end of that time, come and ask for 36 an indefeasible title. The proposal of the Bill was that any person who at any time was on the register should be able to propose to the Land Registrar that he should accept a possessory title as the commencement of the five years necessary for an indefeasible title. Proper persons were then intrusted with the duty of making inquiry; and, in the event of that being satisfactory, at the end of five years an order was made conferring the title as indefeasible on compliance with the various provisions that it had been thought expedient to impose on the applicant. The Bill was ancillary to, and would form part of, the Act of 1875.
§ Bill read la. (No. 57.)