§ MR. WHITESIDEthen moved for leave to bring in a Bill to facilitate the sale and transfer of land, by simplifying and consolidating the law relating to judgments, and by providing for the protection of purchasers against Crown debts in Ire- 158 land. In ancient times, judgments did not affect land. In the time of Edward I. the statute of elegit was passed, which created judgments into a kind of hovering lien on all property; and though a man might sell part of his land, yet any judgments existing against him still hovered over the land. In the time of George II., judgments in Ireland were made assignable by law. The result was, that when a landowner wanted to borrow money, which he often did in those days, he sent for a stamped deed, on the other side of which was endorsed a warrant to confess judgment, which judgment was capable of being assigned, so that if it fell into the hands of a country attorney, he assigned it to a friend, who brought it into the Court of Chancery, where ruinous costs accumulated directly, leaving the debtor no alternative but to borrow a fresh sum of money on a fresh judgment. After this, a fictitious process was adopted, by which the lands came into the hands of what was called a custodian. In 1835, Sir Michael O'Loghlen endeavoured to provide a remedy for this state of things, which proved a greater evil than the one it sought to remedy—for he gave power to creditors, instead of taking a moiety of the rents and profits of an estate, as was the case under an elegit, to appoint a receiver over the whole. The result was, that the country was covered with receivers, and greater evils were produced than those which were sought to be remedied. The next Act was called Pigot's Act, being the 3rd and 4th Vict., which was also a step in the wrong direction, for it extended the lien to chattel interests, leaseholds, and terms for lives, over which receivers were appointed, and the complication was consequently greatly increased. The result was, that in 1849, a Committee of the House was appointed to consider the evils of the receiver system in Ireland, and an excellent Committee it was, the late Sir Robert Peel being a member of it, and the present Chancellor of the Exchequer chairman. The Committee evidently doubted whether there ought to be so much facility given for Irish gentlemen to get into debt; but in the result it proved that even sagacious statesmen were unable to grapple with those who maintained that Ireland was not ripe for an assimilation of the law to that of England. They therefore recommended certain palliations of the existing evil, but expressed an opinion that it would be necessary to make a complete change in the entire system. He subscribed to the recommendations which 159 they made, founded on an opinion that nothing could be more mischievous than the existing system of the law of judgments, obtained as he had described, and the appointment of receivers under them. The Act of 12 & 13 Vict. was passed to carry out the recommendations of the Committee; and he found in it a solution of part of the difficulty, for it was enacted, that where a judgment was not for more than £150, it should not be allowed to be a lien on laud, and that not until execution had been delivered should it affect land, nor should a receiver be appointed. If this principle was good for £150, why should it not be good for £150,000? In making such a proposition he was fortified by the Report of the Real Property Commission, in which it was said that the state of the law as regarded judgments against land was most objectionable, whether as regarded elegit, or by making dormant judgments a continuing charge, which rendered land unsaleable; and they said that a judgment ought not to affect land till execution was delivered. That was the principle of his Bill. Sir John Romilly, by an Act 14 & 15 Vict., endeavoured to cure this evil, but his measure had produced greater evils than it found. The system which had been devised at a period before the Incumbered Estates Court was created was this. It was enacted that the judgment should no longer be a charge upon the land, but that the judgment creditor should make an affidavit in the office for Registering Deeds in Ireland, declaring his debtor to be possessed of certain lands, whereupon this affidavit was to be considered as a deed, of which the debtor was to be considered as the grantor, and the creditor as the grantee. By the next section of the Act, this affidavit was turned into a mortgage as soon as it was registered, and thence this Act of Parliament came to be called the Judgment Mortgage Act. All the evils sought to be removed by the first part of the Act were continued under the second part, by which the judgment creditor could obtain a receiver. But recent decisions had proved this Act of Parliament to be inoperative. The intention of it was to give the original creditor who had obtained a judgment all the rights of a mortgagee; but it had been decided that he could only take the residue of the property, after satisfying all the charges which the debtor had laid upon it; whether by registered or unregistered deeds; so that, in fact, he only stood in the position 160 of a judgment creditor. This had been lately further exemplified in an extraordinary case, where the creditor of a joint-stock bank had obtained a judgment against one of the public officers, and the Chancellor held it was not a mortgage to be registered against the shareholders. The result was, that no conveyancer in Ireland would allow any client to lend money on such a security. It was impossible to say what was the law on this matter, and the only remedy was to take the bold course of repealing all the statutes which related to it, and reenacting whatever was useful at the present day, giving against the personal property of the debtor all the remedies which the creditor now possessed, but not admitting the judgment as a specific security on the laud until the creditor had lodged an equitable execution, in the shape of a petition to the Landed Estates Court for the sale of the property of the debtor. This was the only remedy it was now proposed to give; and it was one in accordance with the old principles of the common law, as well as with the opinion of the Real Property Commissioners, the evidence of several eminent witnesses, and the Bill which Lord St. Leonards introduced last year, by which it was provided that a judgment should not be a lien on the land until after execution had been obtained. The effect would be to get rid of the appointment of receivers under judgments, and to simplify the whole of those transactions. He had no doubt that he had now said enough to induce the House to grant him leave to introduce the Bill.
MR. M'EVOYexpressed his hope that the series of Bills now introduced by the Solicitor General for Ireland would effect some useful amendments of the law, and asked whether a day could yet be fixed in which the right hon. and learned Gentleman would introduce the Landlord and Tenant Bill?
§ MR. DOBBSbore testimony that the law of judgments in Ireland was in such a confused state that the most clear-headed man could not understand it, and he trusted this Bill would do something to consolidate the law.
§ MR. MALINScongratulated the Solicitor General for Ireland on this measure, which he thought would prove most useful in simplifying the law, and abolishing a monstrous evil. There might be a hundred judgments against a debtor, and it was absurd that a mortgagee should be required to see them cleared away before he could foreclose. A judgment ought not to be 161 a lien on a landed estate, any more than upon the debtor's household furniture.
§ MR. WHITESIDEsaid, the Landlord and Tenant Bill would be introduced immediately on his return from Ireland.
Bill to facilitate the Sale and Transfer of Land, by simplifying and consolidating the Law relating to Judgments, and by providing for the protection of Purchasers against Crown Debts in Ireland, ordered to be brought in by Mr. ATTORNEY GENERAL for Ireland, Lord NAAS, and Mr. SOLICITOR GENERAL.
Bill presented, and read 1o.