SALE AND PURCHASE OF LAND BILL. (Hansard, 15 February 1853)

§ MR. HENRY DRUMMOND
said, he rose to ask for leave to introduce a Bill to facilitate the sale and purchase of land; no person doubted the necessity of such alteration, and the only question related to the means by which it could be best effected. If they all put their shoulders to the wheel, something might be done; yet, by the conduct of proprietors and lawyers, difficulties were thrown in the way of the sale of land; for, so long as landed proprietors would burden their lands in the absurd manner in which they were accustomed to burden those lands, so long would it be utterly impossible to place them on the same footing with persons who held land unencumbered—so long would it be impossible to put them on a level with those who had well conducted the management of their property. Gentlemen must remember what was the origin of their tenure. It was derived from the times when the possession of land carried with it military service, and the consequence was, that we found many instances in which, where the land fell into the hands of women, they were not allowed to marry any person except by consent of the Crown. But landed proprietors then acted as landed proprietors did now, and tried to escape from the restrictions imposed on them. Securities were sought for on all sides, 126 and unfortunate Jews and merchants who had lent money to the owners of land would have been robbed had not the lawyers stepped in and said to the landed gentlemen, "Well, we cannot take away the land from you, but we will take care that you shall not have one blade of grass or one ear of corn that grows on it;" and they succeeded by taking away what they called the usufruct from the owners. Still the landowners went on increasing their possessions, gratified with the extent of acres which were nominally theirs, but which were of no use to them; and to this day the same thing continued. There was Still a continual anxiety to borrow money in order to buy land, and the consequence was, that when purchased, it became a dead loss to the possessor; and the lawyers, too, continued the same system of taking away the usufruct from the owners of the land, and giving it to those who had lent the money for the purchase of the land. The system of landed tenure which had grown up out of the state of things which he had described must be wholly unsuited to the present state of society, and unless the landlords themselves would consent to some radical change in the mode of entailing property, the transfer of land would every day become more difficult. Now, observe how the thing worked. No lawyer believed that you were the owner of your estate. If you said that you were the owner of a certain quantity of land, he would reply, "Well, perhaps so, but I should like to see your title examined." The person who lent money on land said to the owner, "Let me see that you are really the possessor of the land." The owner replied, "Let the title be shown to Mr. Preston, or some other conveyancer;" and in case he was satisfied, the money was lent. In a short time, perhaps, some more money was wanted to be raised, and the lawyer of the lender said to the owner of the land, "I will examine your title." "Oh, it has been already shown to Mr. Preston, and he was satisfied." But that answer would not do, for the party says, "I should like to have the opinion of my own conveyancer, I don't believe one word of what Mr. Preston says, I wish to have the opinion of Mr. Bell;" and the title must be shown to Mr. Bell, or some other conveyancer, before it would be believed that you were the owner of the land. Now he (Mr. Drummond) said, that after your title had been tried by a competent tribunal, its decision ought to be sufficient, and 127 therefore in the plan which he should submit to the House, his object would be to have titles registered, together with a machinery for properly examining them, and that once on the register they should stand undisputed for ever afterwards. The more remote the title, the worse it often turned out for the owner; because, as the party insisted upon an examination of the title-deeds, it incurred additional expense. It was all to no purpose that an owner might say to the lawyers, "There has been no dispute about my property—my title-deeds are mentioned in Doomsday-book;" they would reply, "That is the worst title you could have; it has never been examined." After the Report of the Real Property Commissioners had been issued, the House of Lords declared that the marketable value of real property was seriously diminished by the tedious process of examination; "that they were anxious for a thorough revision of the whole system of conveyancing, and the disuse of the present vexatious system; and that the registry of the titles of all real property was highly essential to the success of any attempt to improve the system of conveyancing. He (Mr. Drummond) wanted to get leave to bring in a Bill to frame a registry of title I to all real property, in compliance with the Resolution of the House of Lords; and he wished it to be remembered that this was no crotchet of his own, but was based upon a solemn decision of the other House of Parliament, backed by the recommendation of the Commissioners appointed by the Crown. When the Real Property Commission was issued, the Commissioners said that the expediency of registration was so obvious that their duty was less to search for reasons in favour of registration, than to weigh the force of the objections which had hitherto proved fatal to it; and throughout the whole of their Report no valid reason was alleged against registration. He remembered that, at one time, some of the most eminent members of the profession resisted a Motion of this character; but he believed that now all the members of the profession wore convinced that such a measure was necessary; and most certainly the large mass of landed proprietors were anxious that some general system of registration should be established. The system of registering had been repeatedly adopted in different parts of the kingdom. He had already described how the first tenure of land arose; that system began to give way about the time of Henry VIII., and the 128 consequence was, that in 1535 there was an enrolment of deeds, which again took place in 1677. In 1703 the Yorkshire registry was enacted, and in 1708 the Middlesex registry. In 1728 a Bill was brought in for the registration of Surrey, which was lost, as was also another Bill for Derby in 1732. In 1739–40 the House of Lords directed the Lord Chief Justice and the Judges to prepare a Bill, and bring it in, for a general scheme of registration. They brought in the Bill, which passed through both Houses, and was only lost in consequence of the prorogation of Parliament. It was to that Bill he (Mr. Drummond) would go back, for reasons which he would show them presently. It was brought in again on a subsequent occasion; but then began for the first time the remonstrances of the conveyancers of London, followed up by the attorneys; and the senseless cry which then commenced about the danger of exposing titles, lest some flaw should be discovered, was continued to this day. The Bill was lost in the House of Commons by a majority of one, and nothing further was done till 1813, when the question was taken up, but without success, by Sir Samuel Romilly. The subject was again brought forward in 1830 by Lord Campbell, who brought in a Bill prepared on Mr. Duval's plan, which, however, came to nothing. In 1834 there were three Bills on the subject before the House of Commons, and in 1845 Lord Campbell again brought in his Bill. He (Mr. Drummond) did not like to express an unfavourable opinion of anything of which Lord Campbell was the author; but he was strongly inclined to doubt whether that House had not done wisely in throwing out the Bill, for the more he examined it the more he was convinced that while it would have made a total alteration in practice, it would only have substituted one cumbrous machinery for another, besides entailing on the owners of land greater expense. His opinion was founded on the fact that under that Bill there was to be compulsory registration of assurances, private Acts of Parliament, commissions of bankruptcy, judgments, informations, and other documents, which would have rendered no fewer than fourteen indexes necessary for the purpose of reference. A great many Bills had been framed since that period, but they had all been tarred with the same feather, and had all of them enacted the details of the machinery by which they 129 were to be carried out. It might be thought presumptuous in him to criticise an Act of Parliament drawn up by a lawyer; and he supposed it was, and that he must be liable to an imputation of that sort. He was quite aware that dilettante reading of the Mirror of Magistrates, and other light works of that kind, was not so effectual in conferring knowledge on such subjects as the prospect of a fee "looming in the distance;" but lawyers, they found, were not always the best persons at drawing Bills. Everybody knew that some very great men had carried through Bills which had been very incomprehensible. He could relate an anecdote to the House in illustration of that truth. He was once sitting next to Sir Robert Peel, when a certain Bill which had been introduced by the Government was under discussion; and he pointed out to Sir Robert a particular clause in the Bill, saying to him, "Is not this clause perfect nonsense?" Sir Robert looked at the clause, and then said, "It is nonsense; you had better go and show it to Lord John." He (Mr. Drummond) walked across the House, and showed it to the noble Lord, who said, "The clause is nonsense, but I have nothing to do with it; it is Peel's Bill." He (Mr. Drummond) brought the Bill back to Sir Robert Peel, and told him what the noble Lord had said, when Sir Robert replied, "It is true I brought it in, but it was by the order of the Government; and old Eldon was Chancellor at the time, and he never would let the law officers do their duty. He would always meddle with it, and the clause certainly was nonsense." Now he (Mr. Drummond) would go back to the Bill which he had already named, which had been brought in by the Lord Chief Justice and the Judges in 1739, and passed both Houses. The peculiarity of that Bill was this—it appointed the Master of the Rolls as Registrar. At the present day the Master of the Rolls had evidently a great deal to do, and it would be necessary to appoint some other person to that that office; but it might still be left, as that Bill enjoined, to the Registrar, to provide the machinery necessary for carrying out the business named in the Act. He had no doubt that they would be obliged to come to Parliament from time to time to amend the law, but he saw no objection to that course. It was better than enacting a great machinery at first, which it was always the ambition of lawyers to do, in order that it might be hand- 130 ed down to posterity to show what great men they were. What he (Mr. Drummond) wished was to have a registration of titles, which was a thing totally separate from a registration of deeds. They might have a registration of deeds if they pleased, but in the meantime, what he wanted was a registration of titles. Lord St. Leonards stated, only last night, in the House of Lords, when speaking on this subject, that— what many persons desired was this—not simply to reduce the transfer of land by the easiest of all plans, but they wanted to stop all dispositions of land for the purpose of family enjoyment, and of supporting the dignities their Lordships possessed. Now, it was his (Mr. Drummond's) opinion, that there could be no sound reform of the Legislature which did not insure that a Member of the House of Peers should be possessed of a certain amount of property. It was for the public good that the House of Peers should be bonâ fide men of landed property. But entails were not necessary for others; and therefore, while Lord St. Leonards' observations were perfectly true to a certain extent, they were not true universally. Lord St. Leonards proceeded to say— This question produced most important social and constitutional considerations. It was ridiculous to speak of it as the transfer of land; it involved every question upon which the happiness and prosperity of this country depended; and this he would venture to say, that no man could prove to their Lordships that a general registration would in any way shorten by a single line the conveyance of land. That might be true, but a registry of titles would shorten the abstract, and in that sense would enable land to be transferred as easily as stock. Every one knew that land must be measured and described, and therefore it was not possible that its transfer should be as short as that of shares and stocks; but that was no reason why they should not have a registration of titles. He had thus briefly stated the object of the Bill, without mentioning the machinery by which that object would be carried out, and he now moved for leave to bring in the Bill.

MR. HEADLAM
, in seconding the Motion, said that the hon. Member for West Surrey deserved the thanks of the House and the public for his unwearied perseverance in endeavouring to improve the law concerning real estate by facilitating the sale and transfer of land, and providing a 131 registration of titles. His hon. Friend had for a considerable number of years laboured with great patience and perseverance, to promote a national object of the greatest possible importance. In 1849 his hon. Friend brought a Bill forward on this subject, but at that time he did not receive any very cordial support. The Bill was, however, read a second time, and referred to a Select Committee, on which he (Mr. Headlam) sat; and he could take upon himself to say, that the ultimate failure of the measure was not due to any lack of industry or zeal on the part of his hon. Friend, but to the insuperable difficulty attending any independent Member seeking to legislate on so difficult and complicated a subject. The present Bill was introduced under different circumstances, and he hoped the Government, if they did not adopt the measure, would at least embody its principle in some Bill of their own, so that a law upon the subject might be practically carried this Session. He had the strongest possible opinion of the benefits which the country would derive from a well-conceived scheme for facilitating the transfer of land, for no one could exaggerate the evils arising from the difficulty of transferring land under the present law. Great labour and expense were incurred in ascertaining the title to land. Every hon. Member who had over had anything to do with the sale or purchase of land, must have felt in his own person the cost, both of money, and of time and trouble, incident to such transactions. But the evil did not rest there. After the purchaser had gone through the investigation of the title, taken a conveyance, and paid his money, he was still insecure in the possession of what he had bought. The Courts of Law afforded many instances of cases in which it appeared that parties had purchased estates with defective titles, or subject to heavy incumbrances not known to exist at the time of the purchase. If the right hon. Chancellor of the Exchequer proposed in his financial statement to put a tax on the transfer of stock, making it as difficult and expensive as the transfer of real estate, every holder of stock would feel that his property was materially depreciated, and yet the practical effect of the law affecting real estates was the same as such a tax on the transfer of stock would be. He wished to impress on the House, in consequence of what had been said elsewhere by a high authority, that neither that Bill nor a Bill for the registration of deeds, would in the slightest degree affect 132 the control which every owner of real estate had over his property. It would not prevent estates tail, settlements, mortgages, or any other power over the land which its owner now could exercise either by deed or will. There might be objections to the Bill, but no objection of this description could arise. Neither did the argument as to the exposure of family affairs, apply to the Bill now before the House. In order to illustrate its principle, he would say that the object of the Bill was to make a transfer of land similar in many respects to the transfer of stock. At present, the House was aware that the transfer of stock was easy and inexpensive, and that the purchaser was secure of the title to what he purchased. Nevertheless, stock was made the subject of marriage settlement, and limited interests in it were given through the medium of trustees. Moreover, no disclosure of the trusts of settlements of stock was made to the public. He would not pretend to go into the details of the measure—indeed he was not prepared so to do, inasmuch as he had not road the Bill of his hon. Friend, but he had heard enough of its principle (which he believed to be a practical one) to give the present Motion his most cordial support; and, afterwards, when this Bill and the measure of the Government were both before the House, he should give his utmost endeavour to procure an enactment of the best possible form, and to ensure the passing, during the present Session, of an Act to Improve the Law of Real Estate, and facilitate the transfer of Land.

MR. HUME
said, that as the Bill was only permissive, it would not be of that use which otherwise it might be. The present system entailed a great loss on landed proprietors. He believed that there was a difference of two years and a half purchase in the sale of an estate in Scotland, and an estate of equal value in England. With this fact before it, it was extraordinary that a nation which boasted of its good sense had so long tolerated so vicious a system. He was present on an occasion when an estate in Belgium was conveyed in five minutes. Any plan that would introduce similar facilities in the sale and transfer of land in England, would confer the greatest benefit on the public, and on the owners of real property.