SECOND READING.

HC Deb 04 March 1857 vol 144 cc1876-81

Order for Second Reading read.

MR. WHITESIDE moved the second reading of this Bill, which was of some importance as affecting the transfer of land in Ireland, its object being to secure the title of purchasers of estates under judicial sales of the Court of Chancery in Ireland. Hitherto a Court of Equity had not power to secure to a purchaser under its order or decree an indefeasible title. An expensive investigation of title, indeed, always took place before the Master, who was supposed to have ascertained before the sale that the title was a good one; but the result of this investigation was not binding, and the opinion of the Master afforded no protection to the purchaser, who was consequently obliged, at his own expense, to employ a solicitor and counsel, not only to repeat in a more rigid manner the very same investigation, but also to examine all the proceedings in the cause, in order to see that it had been regularly and formally conducted, and a valid and binding decree made as against all parties having claims to, or interest in, the lands decreed to be sold. The result to the purchaser was considerable expense and delay, without assurance of the perfect security of the title he had acquired. The House had shown much favour to the principle of the Incumbered Estates Court, that of giving a Parliamentary and indefeasible title to purchasers of estates in Ireland. He wished to give the Court of Chancery the power of conveying by such a title. So long ago as the 27th of April, 1853, he brought in a Bill on this subject, but was met by the Government of that day, who promised that they would themselves bring in a Bill to deal with the matter. They had, however, never done so. The principle of giving the purchasers of land in Ireland an indefeasible title had been considered one of great importance by a Commission, consisting of the present Master of the Rolls in England, and a number of other eminent men, who reported that under the present system purchasers in the Court of Chancery had not that protection which ought to be afforded to them. The statement in the Report of that Commission was strictly true; for, as had been well put by Mr. Brewster in his evidence before a Committee of that House, it was the grossest injustice to compel one man to convey away an estate, and compel another to take it, and yet not secure to the purchaser a title which would protect him. Before the Committee which last Session inquired into the working of the Incumbered Estates Court, all parties were of opinion that an indefeasible title should be given under judicial sales in the Court of Chancery. That was a principle which he (Mr. Whiteside) had advocated several years ago. It was true, that there was in the Incumbered Estates Court an existing tribunal for the conveyance of laud by an indefeasible title; but there were many estates which it was necessary to sell for family and other purposes, but which could not be brought under the operation of the In-cumbered Estates Court. On what principle, then, he would ask, should a Parliamentary title be given to purchasers in the Incumbered Estates Court, while it was withheld from those who bought property which could not be sold by that Court, but was sold and conveyed by the Court of Chancery? The object of his Bill was to remedy this state of things; and it proposed to afford to the Masters in Chancery, in the case of decrees for a sale, the assistance of a counsel of fifteen years' standing—a Queen's Counsel—to examine the titles and all documents connected with them, and certify to the Master. The Bill provided that this inquiry should be conducted with the knowledge of all the litigant parties, who were to be before the Master. This was not the case in the Incumbered Estates Court. The fact of all parties being represented, with the circumstance that there would be an appeal from the Master and also from the Court of Chancery to the Court of Appeal in Ireland, and from that tribunal to the House of Lords, would guard against any injustice being inflicted on any party. The form of conveyance, which was annexed to the schedule of the Bill, did not cover more than one side of a sheet of letter paper; while, by giving a Parliamentary title, it would secure the safe and satisfactory transfer of land. He hoped, therefore, that the House would read the Bill a second time.

Motion made, and Question proposed, "That the Bill be now read a second time."

MR. J. D. FITZGERALD

said, that his objection to the proposed Bill was, that it only dealt with a fragment of a great and important subject. The measure was calculated, under the disguise of conferring enlarged powers on the Court of Chancery, to undermine the Incumbered Estates Court in Ireland. He looked upon the establishment of that Court as a great and hold measure; it had conferred the greatest benefits on Ireland, and although he looked forward to the time when that Court might be modified, he could not concur in any attempt to destroy it. The hon. and learned Gentleman (Mr. Whiteside) had, he believed, never been favourable to the measure. He (Mr. Fitzgerald) had endeavoured to introduce modifications into the present system; but the hon. and learned Gentleman opposed that endeavour, and having in Committee obtained a majority of one against the fifth Resolution which he (Mr. Fitzgerald) proposed, and which was to form the basis of his Bill, he did not feel that he would be justified in proceeding with the Bill further either in the Committee or in the House. The Bill of the hon. and learned Gentleman would take away most of the business from the Incumbered Estates Court. Estates in that Court were disposed of on the petition of the incumbrancer, and how could it be said that if power were given to the Court of Chancery to give a Parliamentary title, that would not deprive the Incumbered Estates Court of its business? He (Mr. Fitzgerald) thought they might dispense with the Incumbered Estates Court; but great caution would be required in determining to what tribunal the authority of selling incumbered and unincmnbered estates should be committed, and in his opinion the Court of Chancery ought not to be entrusted with that power until it had been completely reformed. By the Act of last Session the Court of Chancery in Ireland had now the power to reform itself. [Mr. WHITESIDE: Which it has never done.] The Act had only been in operation two months, so that there had not yet been time to carry out the reforms which the Court had obtained the power to make. It remained to be seen whether the Court of Chancery would exercise that power; and if it did not reform itself, then it would be the duty of Parliament to do it. The proposition of the hon. and learned Member for Enniskillen was to take from the Incumbered Estates Court the largest portion of its business—that which arose on the petition of incumbrancers—and give it to the Court of Chancery. He opposed that proposition. The Bill of his hon. Friend would perpetuate the Masters is Chancery, whose continuance had been almost universally condemned; and it would devolve the responsibility of the Judge in very important matters on some conveyancing counsel. He would not divide the House on the second reading of the Bill, as he was unwilling to do so in existing circumstances; but if the hon. and learned Gentleman proceeded with the measure he would oppose it on the next stage.

MR. G. BUTT

supported the present Bill, which he thought would be very beneficial to Ireland. He could not see how the Bill could at all interfere with the proposed reform in the Court of Chancery.

MR. MACARTNEY

said, the Bill was imperatively required, in consequence of the working of the Irish Incumbered Estates Court. He himself had been purchaser and seller of property in the Court of Chancery, and in both capacities had experienced very great inconvenience, by reason of the inability of that Court to give a Parliamentary title; and at the present moment no man in Ireland was disposed to make purchases without a Parliamentary title. The Court of Chancery could not give such a title, yet it was entrusted with powers to deal with family property, which could only come before the Incumbered Estates Court by having recourse to proceedings which amounted to fraud. What was the result? Why, that sometimes there was a difference of as much as four or five years' purchase between the estate sold in Chancery and the estate sold in the Incumbered Estates Court. This Bill only carried out the principle of the Incumbered Estates Court, and provided that the Court of Chancery should have the power of giving a Parliamentary title to land in the same way as the Incumbered Estates Court.

SIR ERSKINE PERRY

submitted whether it was advisable to proceed with the second reading of the Bill in the presence of so small a number of Members. He knew the importance of some legislation upon the subject; but seeing that the question was one which seriously affected the interests of Ireland, he would suggest that the debate should be adjourned, and renewed when Irish representatives were assembled in greater force. He begged, therefore, to propose, as an Amendment, that the Bill be read a second time that day six weeks.

Amendment proposed, to leave out the word "now," and at the end of the Question to add the words "upon this day six weeks."

Question proposed, "That the word 'now' stand part of the Question."

MR. WHITESIDE

hoped that the hon. and learned Member for Devonport would not press his Motion. The discussion on the principle of the Bill might be resumed at a future stage.

MR. J. D. FITZGERALD

also trusted that no further opposition would be given to the second reading of the Bill. He would take care, on some other occasion, to afford the hon. and learned Member for Devonport an opportunity of recording his vote against the measure.

MR. SEYMOUR FITZGERALD

thought they were greatly indebted to the hon. and learned Member for Enniskillen for introducing this Bill. It was absolutely necessary that some Court in Ireland should have the power of giving an indefeasible title to unincumbered property. There were some portions of the Bill which might be amended; but in so far as it would enable unincumbered property to be bought and sold with the same facility as incumbered estates, he thought it was deserving the support of the House.

SIR ERSKINE PERRY

said, he would withdraw his Amendment.

Amendment, by leave, withdrawn.

Main Question put, and agreed to.

Bill read 2°, and committed for Monday next.

The House adjourned at half after Five o'clock.