HC Deb 14 February 1827 vol 16 cc471-5
Mr. Shadwell

rose, pursuant to notice, to move for leave to bring in a bill relative to the landed interest of the country, and to what he conceived to be a grievous imposition on their property. The object of the proposed bill was particularly as to the duration of time within which Writs of Right, or real actions, as they were called might be brought, after the period by which the ordinary remedies were limited had ceased. A principal ingredient in the comfortable enjoyment of real property was a secure and unassailable title; but the effect of a writ of right being practically to hold that enjoyment in jeopardy for a great number of years, it was found necessary, at a very early period of our history, to abridge the period within which this writ could be sued out. The first act of the legislature in which they were mentioned was the statute of Morton, made in 1236, in which it was enacted, that, no such writs should be brought for causes which had occurred since the reign of Henry 2nd, that was since the year 1185. In the revolution of time, this period of forty-six years was extended, and, by the first statute of Westminster, made in the first year of Edward 1st, that was in 1275, it was re-enacted, that no writ of right should be brought where the cause of action had arisen since the reign of Richard 1st, or 1199, thus making the period of limitation seventy-six years. The law then remained unaltered until the 32nd Henry 8th, when, in 1540, it was enacted, that no writs of right should be brought after a period of sixty years. From that time to the present, the law had remained the same. In the reign of James 1st, a limitation had been made to other actions, but this was not included. Now, the practical result of this was, not that persons having just claims possessed any greater facility of enforcing them, but that persons who fancied they had claims, and particularly those in the lower classes, were led to indulge hopes wholly without foundation, while the possessors were exposed to serious inconvenience, because they were unable either to sell or mortgage their lands, unless they could show an undisturbed title for a period of sixty years. The bill which, if he should obtain leave, he should have the honour of proposing, would have the effect of limiting this period. He wished to state, that this was no new idea of his, but had been proposed to the House, in 1783, by the late lord Kenyon, and had passed through the committee of the House. With a few alterations the present bill was the same. It was true, that the bill did not succeed then, but that was no reason why it should not succeed now. A greater spirit of inquiry and research was abroad, a spirit of reform in all useful matters was now cultivated by all classes of persons, and especially by the two Houses of Parliament. There was now no longer that stiff adherence to ancient forms and rules, merely because they were ancient, which existed when lord Kenyon brought forward his measure. At present, a title to be recoverable at law, must be what was called a legal title; but when the estate was vested in trustees who had the legal right, while another person was the beneficial owner, that could only be vindicated in a court of equity. Now, at least one half of the real property in the kingdom was vested in trustees, and was therefore more or less, in a state not to be vindicated, if attacked, but in the courts of equity. In a recent case, which must be familiar to every one, that of lord Cholmondeley, it had been solemnly declared, that in equity a suit could not be instituted for land after twenty years had elapsed from the lime of the title's accruing. Now, if this was true, the period of limitation, with respect to one half of the real property in the kingdom would be twenty years, and the period of limitation with respect to the other half, sixty years. The House was called upon, therefore, to make the law, in some degree, consistent; and for that purpose he should propose to limit the period within which the legal title to land might be disputed to thirty years. He proposed, also, to correct a gross abuse which resulted from the present state of the law. As the law now stood, a person having no title whatever, might for the mere purpose of vexation, bring a writ of right against the person known to have the title. He might put him to great expense to prove his title, and after all he was not even compelled to pay costs to the person whom he had wantonly injured and harassed. This abuse he proposed to remedy. There was another injustice which it was his intention to remedy. At present, the party bringing the writ of right was not bound to make out his claim; but the tenant in possession was compelled to make out his title to property, of which he might have been in possession for fifty years. He proposed to make possession primâ facie evidence of the right, and to throw upon the party disputing the right, the onus of proving a better title to the land. He proposed also, to alter the law respecting the manner of taking conveyances, to bar the dower of married women on purchases made by their husbands, by a mode less circuitous and expensive than that which was at present adopted, and by merely inserting in the conveyance words to the effect, that the purchaser should be seized of his estate in freehold, discharged of the dower, or claim of dower, of his wife. The hon. and learned member concluded by moving for leave to bring in a bill, "for the limitation of a Writ of Right, and to amend the Law with respect to Dower."

Mr. Lockhart

thought the landed interest were much indebted to the learned member, for the measure which he proposed to introduce. He could have wished that the learned member had proposed some remedy for the evil arising from outstanding terms, which created great difficulty in the perfecting of titles. At present, persons were frequently obliged to consume years in finding out the next of kin, in order to take out letters of limited administration, at a most enormous expense. There was another evil which called for a remedy. A bill in chancery was held to be notice to all the world; and if a bill in chancery, disputing the title to landed property, had been filed, within a period of sixty years, and afterwards dropped, it nevertheless operated as a bar to the transfer of such property. The learned gentleman would do a real service, by remedying the law in these respects. He felt the more fortified in this opinion, seeing that it was supported by that illustrious man (for so he would call him), Mr. Charles Butler, a gentleman not only versed in law, but in every human science; the ornament not only of his profession, but of literature.

Mr. D. W. Harvey

, after some observations upon the practice of conveyances, and the facility with which they entertained any objections to a title when they might be made to form grounds of proceedings in a court of equity, expressed his surprise and regret that the learned gentleman had not moved for the appointment of a committee to investigate the state of the laws with respect to real property, rather than, by proposing a partial and unequal remedy, to disappoint the expectations formed by the public upon any thing which might emanate from a man of the learned gentleman's character and legal reputation. If, however, the learned gentleman did not move for that committee, he would himself, at an early period, propose that the whole of the laws relating to real property be subjected to the revision of a committee of the House.

Mr. Hume

expressed his conviction of the necessity of such a committee, and condemned any measure which did not put some bar to the claims of the clergy for tithes. Some of these claims were carried back four hundred and fifty years; and unless a general system of reform was introduced, they would patch without relieving those difficulties which deteriorated the value of land to the extent of four or five years' purchase. The learned gentleman's bill seemed, indeed, to be but a patch, and he agreed with the hon. member, that it would disappoint the hopes of the public.

Mr. Shadwell

, in reply, declared himself willing to lend the benefit of any little experience which he might possess, to any measure which the House might adopt towards a reformation of the law of real property; but he thought they ought not to reject the remedy of one grievance, because they could not obtain their wishes with regard to all. Men differed with respect to what was a grievance, as well as upon the remedies to be applied to them; and he could not but think that by doing a little at a time, they might gradually acquire all, while if they were to wait until all were agreed, no man in the House was likely to live to benefit from their labours.

Leave was given to bring in the bill.