HC Deb 13 July 1848 vol 100 cc473-9

House in Committee.

On Clause 2,


said, it was proposed to omit the words which went to limit the sale of property under the directions of the court, unless it sold for a sum sufficient to pay off all the incumbrances.


proceeded to state the object of the Amendment of which he had given notice. The Bill as at present framed limited the right of petitioning for a sale to the owner of the estate, to the first incumbrancer, and to the mortgagee who might hold the title-deeds in his possession. He was desirous of removing such limitation, and permitting any incumbrancer to institute proceedings in a court of equity for a sale. The parties on whom the clause exclusively conferred the power, were precisely those who in general were least disposed to sell. The owner of an estate heavily incumbered has ceased too frequently to retain any direct interest in its possession, excepting that which he valued very naturally, and not undeservedly, the consideration and position which had come to him by inheritance, and which, with the inheritance, he is conscious that he must lose. To expect such a man to initiate proceedings in equity for a sale would be idle. Were the highest price realised, and all his creditors paid off, the balance in many instances that would remain would not enable him to maintain what is familiarly termed his position in the county; and if he happened to be but tenant for life, the interest annually payable to him out of court upon this residuum would be inadequate to maintain him in that social sphere in which he had hitherto moved. If you waited until the insolvent, or nearly insolvent, owner petitioned for a sale, you might wait for ever. Then as to the first incumbrancer, he believed it would be found that the first incumbrancer was, generally speaking, a person holding a charge under family settlement, or an old judgment on a bond. In Ireland those early charges and old judgments were looked upon as about the best investment that could be had. They were transferable, and always brought their full price whenever they were sold. They were valued like old pictures, which the possessor was always the loss disposed to part with because he knew that they would always bring him his own money. If, therefore, lands were never brought to sale until persons so circumstanced filed petitions in equity to raise the amount of these charges, sales to any considerable extent there would never be. As for the principal mortgagees, who had the title-deeds in their possession, those parties had usually taken very good care either to buy up prior incumbrances before they lent any considerable sum to the owner, or to leave a sufficient margin of rent to secure the payment of their interest. Sometimes these parties were wealthy individuals who had lent their money in this way as a permanently safe and profitable investment. Sometimes they were joint-stock companies or moneylenders; but, almost invariably, they felt themselves to be in exactly the position where there was seldom any object or motive to institute proceedings for a sale. The estate might deteriorate, as heavily incumbered properties were apt to do; but they were distant from the scene; indifferent to the slow decay; safe, by their possession of the title-deeds, from the practical consequences of the evil. To wait till such parties filed petitions of sale would be to wait for ever. In the course of the discussions that had taken place upon this Bill on a previous day, he regretted to observe a tone of argument indicative in some sort of a feeling that, after all, this was a mere wrangle between landlords and lawyers. But there was another and a far wider interest concerned, which he trusted the House would protect and guard—he meant that of the tenantry on incumbered estates in Ireland. Their position was most lamentable. Improvement was unknown, and escape from the evil impossible. Year after year the condition of the embarrassed property grew worse, until, in the sad progress of deterioration, the time came when, every other duty of proprietorship having ceased to be discharged, the collection of the rents devolved upon a receiver; and what misery and demoralisation were comprehended in that fatal phrase, it could be hardly necessary to explain. Now, what was the condition of the puisne incumbrancer? He watched the gradual deterioration of the estate on which he had lent his money with a very different eye. The eventual danger of a deficient fund was ever present to his mind. If he were enabled to do so, he would institute proceedings for a sale before it was too late. By doing so he would do a real service to the improvident owner, and an inestimable benefit to the tenantry of the portion which might be sold. The Amendment which he had the honour to move, would clothe the minor incumbrancer with this power; and it would, he believed, go far towards the gradual encouragement of what was so desirable, but what, at present, did not practically exist in Ireland, a market for land. People talked of bringing land into the market. Into what market? If they meant by a market the competition of small capitals for moderate portions of land, he could understand it; but if they meant a forcing of large estates, unbroken and in great numbers, suddenly to sale, then he would tell them that the only practical effect would be to depreciate most ruinously the present value of land, and to hand over a vast portion of the soil of Ireland to a class of mere land-jobbers. He was sure that such was in no respect the purpose or aim which the framers of the Bill had in view. But he very much feared that such would to some extent be its unintentional tendency, if some means were not found of permitting portions of estates rather than entire estates to be sold in liquidation of minor incumbrances. He had heard with the deepest interest the speech delivered on a former day by the right hon. Baronet (Sir J. Graham); and by nothing was he more struck than by the caution with which he guarded his strenuous support of the principle of the Bill from any approval of recklessly throwing more land upon the market than the capital of Ireland could appropriate, and thus incurring the incalculable evil of general depreciation. The Amendment would restore the second clause to the condition in which it stood when the Bill was originally introduced into the other House last year; and he earnestly hoped, therefore, that Her Majesty's Government would not refuse to adopt it.


said, they should keep in view that the purpose of the measure was not so much the sale of large estates as the formation of small ones, for the purposes of creating a yeomanry connected with the land, and living on their estates. Upon this ground he thought it important that the attention of the noble Lord should be directed to the subject of the stamp duties, with a view to their reduction, so far as regarded the transfer of property in land. [Mr. OSBORNE observed, that notice had been given of a clause for that purpose.] The Stamp Acts, as they at present stood, greatly favoured the sale of large estates, or rather rendered it very expensive to acquire small ones; and he thought that the objects of the present measure would not be efficiently advanced without an alteration in the stamp duties on the transfer of real property.


could not assent to the suggested alteration. All the expenses of effecting a sale must eventually fall on the estate; and he did not think it expedient to give to any one incumbrancer the power of subjecting the estate to a forced sale, contrary to the interests of the owner and the other incumbrancers.

Clause agreed to.

On Clause 7,


having moved its omission, the Committee divided:—Ayes 64; Noes 8: Majority. 56.

List of the AYES.
Abdy, T. N. Lewis, G. C.
Adair, R. A. S. Macnaghten, Sir E.
Armstrong, R. B. Maitland, T.
Arundel and Surrey, Earl of Monsell, W.
Mullings, J. R.
Baines, M. T. O'Connell, M. J.
Barnard, E. G. Osborne, R.
Bellew, R. M. Palmer, R.
Boyle, hon. Col. Parker, J.
Bright, J. Perfect, R.
Brotherton, J. Rendlesham, Lord
Brown, H. Romilly, Sir J.
Campbell, hon. W. F. Russell, Lord J.
Caulfield, J. M. Salwey, Col.
Clive, H. B. Sheil, rt. hon. R. L.
Cobden, R. Smith, J. B.
Cowper, hon. W. F. Somerville, rt. hon. Sir W.
Craig, W. G. Sullivan, M.
Drummond, H. H. Tancred, H. W.
Fagan, W. Tennent, R. J.
Fitzpatrick, rt. hon. W. Thompson, Col.
Fortescue, C. Thornely, T.
Greene, J. Trelawny, J. S.
Grey, rt. hon. Sir G. Turner, G. J.
Hastie, A. Vivian, J. E.
Hawes, B. Wawn, J. T.
Hay, Lord J. Williams, J.
Hayter, W. G. Wilson, M.
Heald, J. Wood, W. P.
Henry, A. Wyld, J.
Herbert, H. A. Young, Sir J.
Hood, Sir A. TELLERS.
Humphery, Ald. Hill, Lord M.
Kildare, Marq. of Tufnell, H.
List of the NOES.
Bourke, R. S. Sadlier, J.
Ferguson, Sir R. A. Walsh, Sir J. B.
Grogan, E.
Hamilton, G. A. TELLERS.
Maxwell, hon. J. P. Dunne, H.
O'Brien, Sir L. Napier, O.

Clause to stand part of the Bill.

On Clause 34, which provides for notices of proposed sales without order of the court,


thought that the particular clause then under consideration required the most serious attention, because he held it to be of primary importance that while every facility should be given to tenants for life to sell encumbered estates, peculiar care should be taken that there should be no collusive sale, and that the full value of the land should be obtained. It had been suggested to him that for the purpose of preventing collusive sales, and with the view of obtaining the full value of the land, the sales should take place by public auction. It had also been suggested, that for the purpose of securing the same object, it was desirable that the sale should take place in the master's office, with the power of opening the biddings; but to this last proposal he had an insuperable objection. He wished to know, however, from the Solicitor General whether he had any strong and decided objection to the proposal that the sales should be by public auction?


certainly would not object to the proposal, provided he was quite sure that sales by auction would be a security against fraud; but he feared that if fraud was intended, it would be perpetrated by public auction as well as by private contracts. He had always found, and he thought it would be the experience of most persons, that it was far the best course to give the power of selling either by public auction or by private contract, as might be found most advisable; because, if they limited the sale to either the one or the other mode, they would in many cases preclude a party from selling to the best advantage. He admitted, that if they were to limit the sale to one or other of these modes, it ought to be limited to sales by auction. If it was the opinion of the Committee that the sale should be by auction, he would not oppose it; but he presumed the right hon. Baronet, to whom he owed great obligations for the assistance he had rendered in improving the provisions of the measure, would not object to the estate being sold by private sale, if it could not be disposed of by auction.


could conceive the case of a tenant for life having an interest in effecting a sale to the detriment of the heir in remainder, he being a minor, or under parental control; and therefore be thought the greatest care should be taken to prevent fraud. Perhaps the Solicitor General would consult the other law authorities on this point, and be able, on the report, to bring up the clause so altered as completely to meet the case.


acceded to the suggestion.

Amendment agreed to.

On Clause 63 being proposed (no petition for sale without consent where an incumbrancer is in possession or during pending suits),

COLONEL DUNNE moved its omission.

The Committee divided:—Ayes 165; Noes 30: Majority 135.

List of the AYES.
Adair, R. A. S. Hayes, Sir E.
Aglionby, H. A. Hayter, W. G.
Armstrong, R. B. Headlam, T. E.
Baines, M. T. Heathcoat, J.
Barkly, H. Henley, J. W.
Bellew, R. M. Henry, A.
Benbow, J. Heywood, J.
Birch, Sir T. B. Hindley, C.
Boiling, W. Hobhouse, rt. hon. Sir J.
Bouverie, hon. E. P. Hobhouse, T. B.
Bowring, Dr. Hodges, T. L.
Brand, T. Hood, Sir A.
Brockman, E. D. Horsman, E.
Brotherton, J. Howard, P. H.
Brown, W. Howard, Sir R.
Buller, C. Hume, J.
Bunbury, E. H. Jervis, Sir J.
Buxton, Sir E. N. Jones, Capt.
Campbell, hon. W. F. Kildare, Marq. of
Carew, W. H. P. King, hon. P. J. L.
Caulfield, J. M. Knox, Col.
Christy, S. Labouchere, rt. hon. H.
Clay, Sir W. Lewis, G. C.
Clerk, rt. hon. Sir G. Lincoln, Earl of
Clifford, H. M. Lindsay, hon. Col.
Clive, H. B. Littleton, hon. E. R.
Cocks, T. S. Macnaghten, Sir E.
Courtenay, Lord Maher, N. V.
Cowan, C. Mahon, Visct.
Craig, W. G. Maitland, T.
Crawford, W. S. Maule, rt. hon. F.
Cubitt, W. Milner, W. M. E.
Devereux, J. T. Mitchell, T. A.
Drax, J. S. W. S. E. Monsell, W.
Drummond, H. Morris, D.
Dundas, Adm. Mostyn, hon. E. M. L.
Ebrington, Visct. Mullins, J. R.
Elliot, hon. J. E. Muntz, G. F.
Estcourt, J. B. B. Neeld, J.
Evans, W. Noel, hon. G. J.
Fagan, W. Norreys, Lord
Farrer, J. O'Connoll, M. J.
Ferguson, Sir R. A. O'Connor, F.
Fitzgerald, W. R. S. Ogle, S. C. H.
FitzPatrick, rt. hn. J. W. Osborne, R.
Floyer, J. Paget, Lord C.
Fortescue, hon. J. W. Paget, Lord G.
Freestun, Col. Palmerston, Visct.
Glyn, G. C. Parker, J.
Goddard, A. L. Patten, J. W.
Gore, W. O. Pearson, C.
Gore, W. R. O. Pechell, Capt.
Goulburn, rt. hon. H. Perfect, R.
Graham, rt. hon. Sir J. Pilkington, J.
Greene, J. Pinney, W.
Greene, T. Price, Sir R.
Grey, rt. hon. Sir G. Raphael, A.
Grey, R. W. Readlesham, Lord
Halsey, T. P. Reynolds, J.
Hardcastle, J. A. Ricardo, O.
Hastie, A. Rich, H.
Robartes, T. J. A. Thompson, G.
Romilly, Sir J. Thornely, T.
Russell, Lord J. Townley, R. G.
Rutherfurd, A. Trelawny, J. S.
Salwey, Col. Turner, G. J.
Sandars, J. Vesey, hon. T.
Scholefield, W. Villiers, hon. C.
Scully, F. Vivian, J. H.
Seymer, H. K. Ward, H. G.
Shafto, R. D. Watkins, Col.
Shell, rt. hon. R. L. Wawn, J. T.
Sheridan, R. B. Williams, J.
Simeon, J. Wilson, J.
Smith, rt. hon. R. V. Wilson, M.
Somerville, rt. hn. Sir W. Wood, rt. bon. Sir C.
Spearman, H. J. Wood, W. P.
Stuart, Lord D. Wrightson, W. B.
Sullivan, M. Wyld, J.
Talbot, J. H. Young, Sir J.
Tancred, H. W.
Tennent, R. J. TELLERS.
Thicknesse, R. A. Tufnell, H.
Thompson, Col. Hill, Lord M.
List of the NOES.
Baldock, E. H. Hotham, Lord
Bateson, T. Maxwell, hon. J. P.
Bennet, P. Napier, J.
Beresford, W. Newdegate, C. N.
Boldero, H. G. Nugent, Sir P.
Bourke, R. S. O'Brien, Sir L.
Bremridge, R. Sadlier, J.
Burghley, Lord Somerset, Capt.
Cole, hon. H. A. Stuart, H.
Dodd, G. Tollemache, J.
Farnham, E. B. Waddington, H. S.
Forbes, W. Walsh, Sir J. B.
Fox, R. M. Wodehouse, E.
Frewen, C. H.
Fuller, A. E. TELLERS.
Hamilton, G. A. Dunne, Col.
Hodgson, W. N. Grogan, E.

Clause to stand part of the Bill.

Remaining Clauses agreed to.

House resumed. Bill reported. To be printed and further considered.

House adjourned at One o'clock.