THE SOLICITOR GENERAL
—Sir, I rise to move for leave to introduce a Bill to simplify the title to landed estates in England. The subject is one the importance of which is now admitted by every one. The evils which are complained of, 278 and the complexities which have to be simplified, are unfortunately now no new topic. Looking back to the history of the law of real property in this country, it may, by a broad line of demarcation, be divided in substance into two periods. Up to the time of the Commonwealth you were occupied in endeavouring, by means of legal fictions, to make the severe and simple forms of feudal law bend themselves to the advancing interests of commerce and to the wants of the people. Examples of this process may be found in the introduction of the fictitious system of fines and recoveries in this country, and in the various purposes which the complicated contrivance of uses and trusts was made to serve. Then, when about the period of the Commonwealth, you had succeeded by those fictitious means in getting rid, to a very considerable extent, of the severity of feudal tenures, a new period commenced, which has continued to the present time, during which the great effort has been to get rid in turn of those complex systems of legal fiction which had been useful up to that time in lessening the severity of feudal tenures. Of the work of the latter period examples are to be found in the constant and repeated efforts made after the year 1660 in this House to establish registers, sometimes successful, sometimes unsuccessful,—successful as to parts of the country, always unsuccessful as to the whole. You find examples of the same course of action in those most useful measures by which you got finally rid of the system of fines and recoveries altogether, and in the last reign the number of measures introduced with the view of limiting the various claims which formerly hung over landed estates, and thereby to a certain extent simplifying their transfer. It, is remarkable during the period I have mentioned how uniform has been the complaint of the injury to landed property itself, occasioned by the complexity of the title on which it was held. Upwards of 200 years ago, or thereabout, I observe, Sir Matthew Hale, writing of a property which he had purchased, said, "he would willingly give one year's purchase more for it could he be sure thereby to have a good title." That was a moderate "bid" for a simplification of title to landed property. Shortly after that—namely, in 1669, a Committee of the House of Lords was appointed to inquire into the question of the tenure of land, and a sentence from their Report, I think, is worthy the attention of the House. Lord Essex reported to the House:— 279That, after serious debate and examination of several persons of the Committee of Trade and Merchants, the Lords' Committee had come to the conclusion that one cause of the decay of value of lands was the uncertainty of titles of estates, and recommend that there should be a Bill of Registers for the future.The value of land was very much depreciated at that time, and the other House of Parliament came to the conclusion that the complexities of title had very much to do with that depreciation. I find that about the year 1703 the register of deeds was introduced into the West Riding of Yorkshire; and whatever may be our opinions of the advantages of that institution the grounds on which it was established are at least deserving attention. The Act by which the register was established recites—That the West Riding is the principal place in the north for the cloth manufacture, and most of the traders therein are freeholders, and have frequent occasion to borrow money on their estates for managing their trade, but for want of a register find it difficult to give security to the satisfaction of the money lenders—although the security they offer be really good—whereby trade is much obstructed and many families ruined.This measure, therefore, affecting land as it did, was a measure introduced in the belief that commerce as well as land had suffered from the want of simplification in the title to landed property. Coming down to more modern times, I find in 1846 another Committee of the other House of Parliament addressed itself to the subject, and they reported—They are convinced that the marketable value of real property is seriously diminished by the tedious and expensive process attending its transfer.Then, in 1856, a Royal Commission having been appointed to take the whole question into consideration, I find in the Appendix to their Report, to which I shall afterwards have occasion to refer, witness after witness addressing himself to the injury sustained by landed property, and to the actual loss consequent on the difficulties incident to its transfer. I take, as an instance, a statement made by an auctioneer in London, of eminence in his profession, and of great experience in dealing with landed estates. He says—The effect of the present state of things is unfairly to depreciate the value of all fee simple property by obstructing and impeding transactions; whereas, if the principle acted upon in the Incumbered Estates Court in Ireland in regard to titles, and their confirmations was rendered universal—although it is not essential or requisite to 280 establish a similar court, under the circumstances in which property is placed, in England and Wales or Scotland—every estate would sell for at least three years' more purchase, a much larger amount of capital would be invested in landed and other real property, and circulated in improvements by its becoming unfettered and capable of immediate application.This estimate is a larger one than that of Sir Matthew Hale. He was willing to give one year's purchase, but the auctioneer offers three.
Now, Sir, passing from this short preliminary view of the question, I think it desirable to define precisely the evils of which complaint is thus made in general terms. They may be said to be two. The first is the length of time which at present must elapse between the making of a bargain and the completion of the purchase. We know how the purchase of all other kinds of property is completed. If you buy stock you do not require to be told how many hours are necessary in which to make the transfer. If you buy railway shares, in like manner you have your purchase completed and your money paid in a few hours afterwards. Perhaps the most extraordinary facility of transfer obtains in the case of ships. In five minutes, and at an expense less than 5s., you may make a contract for, and actually transfer such a ship as the Himalaya or the Great Eastern. It ought never to be forgotten by the owners of shipping property in this country that, whatever may be their position in other respects, they have this singular advantage: they can transfer their property as they please and as often as they please without any fiscal duty; they are not subjected to the difficulties of making out title to which owners of landed property are subjected: and their ships will pass more easily than stock or shares. The mode in which the transfer of a ship is effected is by a document of a simple form, and by the entry upon a registrar that the transfer has taken place. But compare that with what is done in the case of landed property. You buy an estate at an auction, or you enter into a contract for the purchase of the estate. You are very anxious to get possession of the property you have bought, and the vendor is very anxious to get his money. But do you get possession of the property? On the contrary, you cannot get the estate, nor can the vendor get his money until after a long lapse—sometimes no inconsiderable portion of a man's lifetime—spent in the preparation of abstracts, in the compari- 281 son of deeds, in searches for incumbrances, in objections made to the title, in answers to those objections, in disputes which arise upon the answers, in endeavours to cure the defects. Not only mouths, but years, frequently pass in a history of that kind; and I should say that it is an uncommon thing in this country for a purchase of any magnitude to be completed—completed by possession and payment of the price—in a period under, at all events, twelve months. Sir, the consequences of this were stated in the Report of the Commission to which I have already referred, in words so apposite that if the House will permit me, I should desire to read to them. The Commissioners state in their Report:—When a contract is duly entered into, the investigation of the title often causes not only expense but delay and disappointment, sickening both to the buyer and seller. The seller does not receive his money nor the buyer his land until the advantage or pleasure of the bargain is lost or has passed away.Unquestionably, Sir, that is one and a very great evil under which we labour. But that is not the greatest evil. I can well imagine that the purchaser of an estate would be content to submit to delay, and even to some considerable expense, if he were assured that when the delay and expense were over upon that occasion, at all events, he would have a title as to the dealings with which, for the future, there would be no difficulty. But, unfortunately, that is not the case. Suppose I buy an estate to-day. I spend a year, or two, or three years, in ascertaining whether the title is a good one, I am at last satisfied. I pay the expense—the considerable expense—which is incurred in addition to the price which I have paid for my estate, and I obtain a conveyance of my estate. About a year afterwards I desire to raise money upon mortgage of this estate. I find some one willing to lend me money provided I have a good title to the land. The man says. "It is very true that you bought this estate, and that you investigated the title; but I cannot be bound by your investigation of the title, nor can I be satisfied by it." Perhaps he is a trustee who is lending money which he holds upon trust. He says, "My solicitor must examine the title and my counsel must advise upon it." And then, as between me, the owner of the estate, and the lender of the money, there is a repetition of the same process which took place upon my purchase of the estate, and, con- 282 sequently, the same expense is incurred as when I bought it; and for the whole of that I, the owner of the estate and the borrower of the money, must pay. Well, that is not all. Months or years after all this is completed, from circumstances, I find I must sell my estate altogether. I find a person willing to become a purchaser. The intending purchaser says—"No doubt you thought this was a good title when you bought this estate, and no doubt this lender of money thought he had a very good security when he lent his money; but you are now asking me to pay my money. I must be satisfied that the title is a good one. My solicitor must look into it, and my counsel must advise upon it." Then again commences abstracts, examinations, objections, difficulties, correspondence, and delay. I am the owner of the estate, and I must pay substantially for the whole of that, because, although the expense there is paid in the first instance by the purchaser, of course in the same proportion as that expense is borne by him in the same proportion will abate the price which he will give for the estate.
It is not necessary to dwell longer upon these, which are the salient evils to which under the present system landed property is subject. The question arises, is it possible to remedy these evils? We all agree that if it can be done a great good will be accomplished. But how is it to be done? Well, of course, the first thing to do in such an inquiry is to direct our attention to precedents. What have we by us, up to this time, which will afford us a guide by which we may act, and can we proceed further in the same direction? I suggest that the House should look to the case of Ireland. What has been done in Ireland by the Incumbered Estates Court? I beg the House to observe what were the particular objects for which the Incumbered Estates Court was in the first instance established in Ireland. These objects were two, and they were perfectly distinct; and it is important that we should keep this distinction prominently before us. The first object was to obtain the means of enforcing the compulsory sale of an incumbered estate; the second to give to the purchaser a Parliamentary title. Again, I say these objects were perfectly distinct—the one might have been obtained without the other. To which of these objects was it that the objections originally taken to the institution of the Incumbered Estates Court were directed? 283 Unquestionably to the first—to the compulsory sale of the estate. To force a sale at a period of depression, it was said, was unfair to the owner of the estate, because if he were allowed to keep it until a more favourable period he might sell at a price so advantageous as to enable him to pay off the incumbrances and have a surplus remaining. But no objection was made to the Parliamentary title being given to the purchaser. Why? Because it increased the value of the property, and was, therefore, beneficial to the owner. The Bill passed; the value of the estates sold under it rose, and it finally became matter for consideration in this House and in Committees of this House whether a system which applied so well to incumbered estates would not apply equally well to unincumbered estates, and it was decided, and I think most wisely, that it was impossible not to extend the system to them. The reasons which induced the House to come to that conclusion can be stated in a word; they never were and never could be refuted. They were three—First, it was said that if you did not extend the system to unincumbered estates there would be a continuance of a practice already existing, namely, of owners putting fictitious incumbrances on to their estates in order to effect a sale. Secondly, it was said, with respect to the Parliamentary title, there was no magic in the estate being incumbered, for this reason—upon a sale the existence of an incumbrancer did not give any security that the title was one that ought to be confirmed, because, of course, the object of an incumbrancer, who perhaps was only a judgment creditor, would be to conceal and not to disclose the title; it was the Court that secured the title. Thirdly, if you had an estate but partly incumbered, and which the Court was always prepared to sell, so far as that estate was not incumbered you were really selling an unincumbered estate, and with regard to the margin beyond the incumbrance handing it over at once to the owner. You were, therefore, virtually doing that which you were asked to do by extending the power of the Court to estates entirely unincumbered. You accordingly determined to go at all events the length of selling unincumbered estates.
But then a further question arose. Could you stop short at sales? Was that all the power that this Court was to possess—merely to sell incumbered or unincumbered estates? Must you not go somewhat further and give an indefeasible title irrespec- 284 tive of a sale? Must you not also give an indefeasible title to persons who do not want to sell, but who possessed, and were able to prove their title? Here, again, were three reasons for so doing advanced. It was said, in the first place, just as before you had fictitious incumbrances, now you will have fictitious sales. Any person desirous to get his title affirmed will invent a colourable sale for the purpose of setting the Court in motion in his behalf and participating in the benefits it conferred. Secondly, it was said, "There is no magic in a sale by which you obtain a security with regard to the investigation of the title, because, if you tell the purchaser, 'When your purchase is completed you will have a Parliamentary title,' he will say, 'If I am to have a Parliamentary title, I will leave the whole thing to the Court. I will not trouble myself to investigate the title." Then, in the third place, it was said, "If you confine it to the case of sales, what are you to do with the number of other cases of this kind? A man wants to mortgage, not to sell; or to let out his ground for the purpose of building on long leases in plots; or he wants, upon his marriage, to make a settlement of family estates. All these are instances where there would be no sale, and yet they are instances where, just as much as in the case of a sale, you would require to have all doubts about the title removed." The result was that the House adopted these arguments and came to the conclusion, by a Bill that was passed last Session, to arm the Court, which before was called the Incumbered Estates Court, and now is called the Landed Estates Court, with power to give indefeasible titles to all purchasers, and to any owner of an estate who could prove a right to its possession, while at the same time its power with reference to the sale of incumbered estates was continued.
Now, the advantage of this system to the public in Ireland no person has doubted for many years past. But we must not rest satisfied with the fact merely that it is advantageous to the public; we must inquire, I think, whether any danger has accrued from the exercise of those powers to individuals. Fortunately we have ample materials for conducting and disposing of this investigation. A Commission was appointed in 1655 to inquire into the working, up to that time, of the Incumbered Estates Court. In 1856 certain Bills which were then before Parliament on the subject were re- 285 ferred to a Select Committee of this House for the purpose of again inquiring into the working of that Court. Upon that Committee sat many hon. Members who are still Members of this House; the right hon. Baronet the Member for Carlisle (Sir James Graham), the President of the Board of Trade (Mr. Henley), the Secretary for the Home Department (Mr. Walpole), and the hon. Members for Coventry (Mr. Ellice), and Devonport (Mr. Wilson), were all on that Committee. It was intended, when the Committee was appointed, that all the different views of the question should be represented in it. On the Committee were some strong advocates of the Incumbered Estates Court, some equally strong opponents of it, and others who held a middle position and were anxious that the evidence on the question should be fully heard. There was a full inquiry into the working of the system up to that time, and the result may be shortly stated in this manner:—It was found there have been sold by the Incumbered Estates Court properties to the value of £20,000,000; that the conveyances executed by the Court exceeded 7,000 in number; adding those that have since been executed, they are not less than 8,500. The amount of acreage that has passed through the Court, (allowing for certain cases in which the same estates have passed through twice), is about 3,500,000 acres; therefore, as the area of Ireland is, I believe, from 20,000,000 to 21,000,000 acres, the Incumbered Estates Court has sold about one-seventh of the whole area of that country. Now, in the course of transactions so numerous, and of such magnitude, it is not too much to say that not a single case was proved of injury done to any individual by the granting of indefeasible titles. Of course, I do not enter into the question whether injury may not have been done by selling, by the Incumbered Estates Court, a property that might advantageously been kept longer unsold; but I contend that the Court has never sold the estate of one man as the estate of another, nor land as part of one estate which was really part of another. The House will remember that there was the greatest anxiety on the part of the Committee to arrive at the truth in this matter; and it was stated by Mr. Commissioner Hargrave that there had been only two cases in which he had heard it alleged that a wrong had been done in investigating a title under a sale of land. The House will be curious to know what 286 those cases were, though I may say that both errors were discovered before the completion of the sale and the execution of the conveyance, and consequently in time to prevent anything wrong being done. One of the two cases was the right to thirteen acres of a bog, to which no physical boundary existed. A boundary line was assumed at an angle somewhat more obtuse than ought to have been taken, by which thirteen acres of this bog had been included more than ought to have been taken in. But the error was discovered before the conveyance was executed; and as it was agreed by common consent that no sum low enough could be fixed on as the compensation for this portion, the right to correct tile error was given up. The other case was this,—in the sale of the Martin Estates, in Galway, which were heavily mortgaged to the Law Life Insurance Company in London, the company were in possession of a particular town-land, and therefore claimed that it should be sold with the other parts of the estate. Before it was sold, however, some one appeared and satisfied the Commissioners that the particular town-land ought not to be included in the sale. There, again, the question of compensation arose; but the Law Life Assurance Company said, we are so satisfied with the price in other respects, that we do not care about this. Let there be no dispute, therefore, and leave the question of compensation out of consideration altogether. Now it is a most remarkable fact, there being on that Committee Members opposed to the system, and eager therefore to discover every defect that could be alleged against it, that not a single instance was adduced except those I have mentioned as having up to that time occurred. That I may be perfectly accurate, I ought to say that those who refer to tile evidence will find a good deal of discussion about Lord Blayney's case; but no question about tile title was there raised, the question being whether the Court had acted prudently in selling a large estate which was but slightly incumbered; it therefore had reference to the discretion of the Court only, and consequently would not come properly under our consideration at the present moment.
Now to what is it to be attributed that in transactions of such magnitude, in sales and transfers of such importance, there has been such great safety? I think it may be attributed to three causes. First, it has been the invariable practice 287 of the Commissioners to investigate the titles, in every case, on their own responsibility. The second cause is, I think, to be found in the powers the Court possesses to call before it the parties and their agents to give evidence on any points that require clearing up. The third ground of the security is this, that it is in the power and it is the practice of the Court to issue advertisements of sales, and serve notices in every direction, about the laud to be sold; in fact, the security is in the publicity of every proceeding attending a sale by the Court. In these three considerations I find the explanation of the wonderful fact that in so many transactions there has not, practically, been a single error. Now, compare the facilities afforded by the Incumbered Estates Court, with what takes place every day in this country. Many thousands, even millions of money change hands on the faith only of an investigation of title by conveyancers. What means have these conveyancers to pursue their investigations? They have nothing to guide them but deeds or abstracts of deeds and comparisons of deeds and abstracts. They cannot examine witnesses or take evidence on oath, or publish advertisements, or issue notices on neighbouring holders; and yet, we all know that in practice, meagre as are the means at the disposal of conveyancers, such a thing is hardly ever heard of as a title passed by a conveyancer afterwards turning out to be a bad title. Such being the case, let us see whether any reason has been suggested why that which has worked so well in Ireland—the bestowal of an indefeasible title—will not be equally beneficial and practicable in England. The only reasons which I have ever heard assigned—and upon a question so important, it is right that we should candidly consider every argument that can be brought forward—the only reasons I have ever heard assigned for this supposed difference between the two countries are these:—First, it is said that in Ireland there is a register of deeds, which enables us with greater security to know the state of every title. Next, it is said that in Ireland there is an Ordnance Survey upon a large scale of six inches to the mile; and further, that in Ireland there is an uniform valuation of the whole country, and that these advantages being possessed by the landed Estates Court enable it to act with greater safety than any Court in England could do in a similar case. I will state frankly 288 what occurs to me upon these objections. With respect to the register of deeds there is a register of deeds in Dublin for the whole of Ireland, and there is no doubt that if such register comprised every deed which could affect the land, and if the non-registry of any such deed rendered such deed for all purposes invalid in Ireland, that would show a vast difference between the two countries. But in point of fact such is not the case. I find it stated that there is a large class of deeds most material to the titles to estates which are never to be found in the register in Ireland, and with regard to which the greatest errors would arise if the Court depended on that register. I take this statement from one of the local authorities on this subject:An unregistered conveyance is valid against the grantor, and he is personally bound to its fulfilment. It is also valid against persons deriving under him by marriage, descent, devise, succession, probate, administration, survivorship, and execution, and all persons claiming under him by means incapable of registration.The result is, that any Court which should be content to say, "We will search the register, and take the title to be just so much and nothing more than we find there," would at once fall into the gravest errors, and the greatest injury would be inflicted upon all persons claiming in the manner just mentioned. Therefore, although I do not underrate the importance to the Landed Estate Court of this register, yet so far from admitting that where such register does nut exist, you cannot apply a similar system, as is carried on by that Court, I think it shows there is great danger indeed where you have a register which goes, to a certain extent, but not to the full extent, of being engendered a false security. I think that there is a better chance of a Judge, on his own responsibility, forming his opinion on other materials, being right, than of a Judge trusting to an imperfect register of this kind. With respect to the Ordnance Survey, I think that reason may be easily dealt with. It is not the practice in Ireland to sell by map, and I hope such a practice will never prevail there. Therefore, Ordnance Survey has nothing distinctly to do with titles. No doubt it is valuable in order to ascertain the boundaries of the estates, and the positions of other properties in the same locality. But it must not be forgotten that although we have not a survey here upon so large a scale, still we have accurate surveys to a considerable extent. Indeed, in six of the northern counties, Yorkshire and Lanca- 289 shire being included, the twenty-five inch is almost completed, and I trust that in time we may have a similar survey made of all England. But then, besides this, we have a large and valuable collection of maps in the Tithe Office, the preparation and completion of which has cost, I am told, something like £2,500,000. Then, as to the third point, the uniform valuation, I have never been able to see how a uniform valuation in Ireland can be of any use to the Landed Estates Court. Valuation may be of great use if you wish to ascertain whether you are getting the true value on a sale, but with respect to the investigation, it can be of no value.
Now, as these are the only reasons I have ever heard advanced against the system prevailing in Ireland being introduced to this country, I have felt it my duty to state my views of them; and the conclusion I have arrived at is this, that they are not reasons which should deter us from following the example of Ireland, if in other respects we are agreed as to its propriety. But against those reasons we may set off that which is the case with regard to titles in England. We have, and I say it with no intention of disparaging the abilities of my learned brethren in Ireland, a better system of conveyancing here than prevails in that country. We have got titles here into better order. The accounts of rentals are better kept, and the details of the holdings upon different estates are better recorded than is the case in Ireland. This has been universally admitted, even by Irish landed proprietors, who have lamented the imperfect condition of the accounts of their own rentals. The result, then, appears to me to be, that there is no valid reason why we should hesitate to apply to this country one part, and one part only, of the system which was introduced by the Incumbered Estates Court. The part which I think we could with safety apply to England, is the part by which the Court is authorized to grant an indefeasible title. The part which I would be sorry to see introduced here—because there is no occasion for it—is that which enables the Court to enforce a compulsory sale of incumbered estates. The usual course of the law is sufficient to give incumbrancers opportunities to realize their securities whenever they are inclined.
Sir, I have now, I trust, explained to the House the grounds upon which I have arrived at the conclusion, that we may 290 with propriety offer a scheme for conferring upon persons, who prove to be entitled to it, an indefeasible, or, as it is called, a Parliamentary title to their lands. I will proceed to state, as briefly as I can, the general outline of the scheme we propose, and which is embodied in the first of the Bills which I ask leave to introduce. We propose that any owner in fee simple of land, or any one who has power to dispose of the fee simple of land for his own benefit, and who has been in possession or in receipt of rent by himself or predecessors for a period of five years, may come to the Court which we propose to establish, and which I will presently describe, and apply to have a declaration affirming his title to that particular land. He will have, in the first instance, to supply to the Court an abstract of his title, and a description of the land he claims. It will be the duty of the Court to see that two things are done—first, that there is shown in the document submitted to them a primâ facie title; and next, that the petitioner shall declare his willingness and give a sufficient pledge to meet such costs as may be necessarily incurred in the further investigation of the title by the Court. When that is done, the Court will proceed by advertisements in the newspapers and by notices served on and in the vicinity of the land in question, to make public the application which has been made to them. It will be incumbent on the applicant to the Court, if he does not claim a clear fee simple, to state that he claims a title subject to certain incumbrances, and the Court may announce that the application to them is for a title subject to certain incumbrances. The materiality of this is, that we seek to offer the strongest inducement, and to make it the interest of the applicant to state truly any incumbrance to which his land may be subject. If he does so, the advertisements and notices will state it, and then there will be no necessity for the person whose title is thus saved to come and object to the declaration asked for. If, however, any incumbrance is withheld from the knowledge of the Court, the publication of the notice will enable the incumbrancer to appear; and we provide that the costs of such appearance, when the claim is proved, shall be paid by the applicant. The same course may be taken where two or more persons constitute the owners of an estate. We have fixed upon two periods in respect to which the Court shall be governed in granting declarations 291 of title, at the end of the first of which the Court may make a provisional declaration of title, and at the end of the second an absolute declaration. Those periods, although open to further consideration, are these—twelve months for the first, and three months for the second. We have selected those periods because we find, from a statement of Mr. Hargrave, that the average period in which a sale is completed, and the money distributed by the Incumbered Estates Court, is fifteen months. During that time publicity continues, and there exist opportunities for persons to come forward and make claims if they have any; and, considering we are dealing at once and for ever with a title, I do not think we ought to fix upon a shorter period. There are certain things which every title must be subject to, and which we do not propose to interfere with—tithe rent-charges and burdens of any description, and easements which can only be discovered by an inspection of the property, such as rights of water, and other matters of that description. So also with respect to leases. We take twenty-one years as the ordinary maximum duration of an agricultural lease, and in those cases in which there is a lease which does not exceed that period, and the tenant is in possession, we do not propose to interfere in any way with that lease or holding, and the title will, as heretofore, continue subject to every instrument of that description. These are all matters which can be ascertained by any person who may be desirous of doing so on the spot, and not matters as to which there will be any necessity of giving notice of title. Well, when the declaration of title is made, we propose that its effect should be as follows:—That it should be efficacious in substance, for the purpose of change of ownership,—that is to say, that it should be a declaration which will enable a valid title to be conferred on sale, or mortgage, or lease, or settlement of landed property—in short, on any kind of dealing described in law as taking place for valuable consideration. We do not propose that the declaration of title shall be indefeasible, so long as the land is really held by the person who obtained it, or from him by a voluntary transfer without value. We propose that, to serve the purpose of alienation for valuable consideration, it shall operate, and that it shall not come into action unless there is some purpose of that kind to serve. We further propose, that 292 office copies should be furnished by the Court under which the provisions of the Bill, if it should be passed into a law, will be administered, which documents will constitute the certificate of title of the owner of the land. We also propose that the same process should be pursued upon the occasion of a sale, if the vendor or purchaser should deem it desirable to receive from the Court a declaration of title of this kind: in that case, the vendor and purchaser will jointly apply, and there will be a conveyance by the Court to the purchaser. We, in addition, provide that in the case of any claim upon an estate which, from its nature, is reducible to a simple money claim, and which does not go to the possession of the land itself, the Court shall have the power to require that a sum should be deposited with it previous to the declaration of title or sale, for the purpose of meeting the charge, should the necessity for its payment subsequently arise. We propose, moreover, that this power of conferring a title on sale should apply to sales under the Settled Estates Act, and also to estates under the control of the Court of Chancery, the new Court in such cases having a discretion to decide whether or not an indefeasible title ought to be given. We also provide a safeguard with respect to declarations of title, to which it has not been thought necessary to resort in Ireland, and to which it might not have been necessary to have recourse there; but which, as it is simple in its nature, and may easily be put into operation, I think it would be undesirable not to adopt as a matter of precaution. It is, that if any person should consider that he has an interest in an estate—be that interest ever so unascertained or remote—which he may think would be likely to be overlooked in a declaration of title of this kind, he should be empowered to lodge with the Court a caution or caveat, setting forth the land to which his claim applies; the result of which proceeding world be, that when application was made for declaration of title, with reference to the land which was stated to be involved in the claim, the person lodging the caveat would be entitled to notice of such application. He will not thus, of course, have his title to the lands in question affirmed, nor will he obtain any right which he does not at present possess; but should he be apprehensive that his claim would be overlooked, he will have nothing to do but to lodge this caveat, and to state where notice is to be served on 293 him, in case application is made for a declaration of title.
I have now stated the course which is to be pursued by the Court in dealing with this subject, and I shall therefore at once proceed to inform the House what course we intend to pursue in reference to the Court itself. I freely admit that it would be extremely desirable, if the thing could be done, to make use, for the purposes which I have just mentioned, of some of the existing Courts of the country. It is expedient to do so in order to avoid multiplying unnecessarily our judicial tribunals, and the expense which is consequent upon the increase of their number. At the same time, however, we have, after the fullest consideration, arrived at the conclusion that the duties which would have to be discharged under the operation of the change which we are about to ask Parliament to sanction are of such a nature that there is no Court at present in existence in England to which their performance could advantageously or conveniently be committed. The reasons why we think such to be the case are two-fold. In the first place, all our Courts have already quite as much business to get through as they can well transact, and could not therefore undertake the discharge of duties of a magnitude so great as would, under the operation of this new legislation fall upon them, with the hope of being able to deal with them satisfactorily. But there is a second, and perhaps a better reason for not imposing upon them this additional labour, than that which I have just mentioned. It is, that this new species of business which we propose to introduce is as different from any which our Courts of law are now in the habit of transacting as one description of business can be from another. The Courts which we already have are tribunals which are engaged in trying disputes between individuals—a plaintiff on the one side and a defendant on the other—and the duty of the Judges in these cases is to confine themselves within the scope of the circumstances which the parties to the suit lay before them. These Courts have before them the materials whereon to decide the issues raised: whereas the business with which the new Court would have to deal would be of a wholly different nature. It would be its duty to transact business such as that which comes within the province of a conveyancer in chambers, or such as that which is now transacted by the Judges of the Incumbered Estates Court in Ireland— 294 namely, the investigation of titles, the examination of abstracts, the endeavour to discover whether all that is material to the case under their notice has been brought to their knowledge, or whether a declaration of title could, upon such materials as they might have been furnished with, be safely granted. When the matter, therefore, is duly considered by the House, I feel assured it will be apparent to every hon. Member that business such as that which I have just been describing is not of a nature which renders it probable that it could be satisfactorily disposed of in the existing tribunals of the country, or which any of our Judges, accustomed to litigious suits and to decide in litigation between plaintiff and defendant, could undertake properly to discharge. We propose, therefore, that a new Court should be constituted to deal with this new description of business. It is, fortunately, one of the advantages of our scheme, that a beginning can be made without the necessity of incurring any very considerable expense, and without instituting any very large staff; although hereafter it may, no doubt, be found desirable to carry it out on a more extensive scale. But be that as it may, what we now propose is that a Landed Estates Court should be constituted, with a chief and secondary Judge. The qualification as to each of those Judges we propose should be this:—that he should be either a conveyancer in practice, and who has practised for ten years, or a person who has for a certain number of years filled the position of a Judge in the Lauded Estates Court in Ireland; for it may be found desirable and advantageous to the working of the new system, that some one of the functionaries who have presided in that Court should be selected to take part in carrying the scheme into effect. With regard to the salaries of the new Judges, what we purpose to do is not to place them on a par with the Judges who preside in the Superior Courts, but rather to regulate the amount of remuneration which they should receive with reference to the question of what might be considered a sufficient inducement for a conveyancer in good practice and in all respects efficient to accept one of those appointments. Looking upon the matter, then, from that point of view, we propose that the salary of the Chief Judge should be £3,000, and that of the second £2,500 per annum. We further propose that each of them should be provided with a secretary and a chief clerk, 295 chosen by himself, and that the new Court should, with the concurrence of the Lord Chancellor, have the power to frame rules for the due regulation of the entire of its practice. We also propose that, as questions of law or fact may arise in the Court, and involve a species of litigation which would be foreign to its constitution, it should be enabled to submit such questions to the decision of some other tribunal. With respect to the financial arrangements connected with the Court, we hold that if our scheme should turn out to be successful it will be, as the Landed Estates Court in Ireland will be, to a considerable extent, if not altogether, self-supporting. It is, we conceive, considering the benefit to be conferred on the parties resorting to the Court, no unreasonable requirement to ask those who come before this Court to seek the boon of a simple and indefeasible title to their estates to pay a moderate sum in the shape of a percentage for the work which they call upon it to accomplish in their behalf. If that be done then will the Court be, to a certain extent, if not altogether, self-supporting, although of course it cannot be fairly expected that that will be the case during the first year of its existence.
I have now, Sir, given an outline of the scheme which we propose and nothing more, inasmuch as I am sure it is the desire of the House that I should, upon the present occasion, confine myself to exposition rather than to argument or criticism. It may be said, however, that the plan which I have sketched is all very well so far as good titles are concerned, but that it is desirable to know what we intend to do with respect to those titles to which there is some objection. Indeed the noble lord the Member for Tiverton (Viscount Palmerston), in his usual playful manner, remarked, on the first night of the Session, that he supposed we were proposing to give an indefeasible title to all occupiers of land; to convert bad titles into good ones; and, as a consequence, to produce what, no doubt, would be regarded as a very popular measure. I can, however, assure the noble Lord that we have no plan in contemplation for turning a bad into a good title. What we do propose is this, and this only, that those who have a good title should be enabled to obtain a declaration of it. But it is important at the same time to bear in mind that this is not the whole of the measure now in contemplation. I believe that, in point of fact, there are very few 296 titles in this country which are not good. But there are titles which, though substantially good, are open to certain technical objections that are generally guarded against by the conditions of sale, and which, in strictness, are of a nature that prevents you from saying a title is absolutely good. Yet it is very rarely the case in regard to any one of these that the technical objection could not, by a little trouble and expense, be cured. At present there are no inducements for a man whose title is open to technical defects of this kind to have them removed; because their removal would occasion him expense, without any corresponding advantage upon a sale. But if you were able to assure the owner of an estate, that by some such arrangement as I have described, he could cure the technical defects which now exist, and then have a declaration title once and for all, I am much mistaken if numbers of titles liable to these objections would not be cured and made good in form as in substance, and be found to deserve the sanction of this Court. The course, therefore, which I anticipate will be taken under a measure of this kind is this—that those who desire to avail themselves of it, and have perfectly good titles, will at once obtain a declaration in their favour; while those whose titles are open to technical defects will do what is required to cure them, and so come in to secure the same advantage. And then we all know there must, sooner or later, come a time, with regard to the very worst titles in the country, when their flaws will be taken away even by long possession, if by nothing else, so that the period will arrive at which titles which are now bad will in turn also receive the benefit of this declaration.
Sir, if the details of this Bill are found to be satisfactory, I need not dwell on the boon which it would confer upon landowners. There are so many ways of putting the advantages that will accrue from it that it would be tedious to describe them. You may obtain in this manner that which I believe many owners of land in this country have found to be a great desideratum—namely, the means, where small parcels of land are held under different titles, of consolidating those titles, and getting one general title for the whole. Whereas now in the case of building ground to be sold in plots of one half or one quarter of an acre, an abstract of title is required for each plot, and the expense of au investigation of the title has to be incurred 297 for each, you will, by this plan, get one title for all, and an office copy of the certificate of the title will be handed to each purchaser; while for the purpose of raising money on loan the advantage of such a title must be manifest on the slightest examination.
The next question to which I wish to call the attention of the House for a short time is this—What will you do with the title when you have secured it? Will you allow it to be clouded over again and involved in process of years in those embarrassments and perplexities from which you have delivered it? or is there any way by which you can devise a simple and easy mode of transfer through a register; a register upon which you can put the name of him who has thus been declared the owner of an estate, and from time to time keep upon that register the name of some person who will at all times be able to dispose of, to transfer, and to deal with the estate, subject, of course, to any claims of other parties who may have a right to object to such a transaction? We have here, Sir, I am happy to say, a very large portion of our work done for us by those who have been in the field before us, and from whose judicious investigations and labours we derive very great benefit. I refer to the Report of the Royal Commissioner upon the Registration of Titles, which was presented to Her Majesty in the year 1856. With respect to that report I feel a difficulty in speaking in any terms which can justly convey to the House the very profound impression which its perusal has left upon my mind. I can only hope that those who take any interest whatever in this subject may either have found, or may yet find leisure to study that most valuable document. If we look at the names of the Commissioners, who took part in that inquiry, I think they will carry the greatest possible weight with the House on a question of this kind. We have, Sir, in the first place, the benefit, of your experience and counsels upon a subject on which that experience and those counsels are most valuable. We have the aid of my right hon. Friend the Home Secretary, who addresses himself to this question with the energy and ability which he devotes to everything that he undertakes. We have the assistance of my hon. and learned Friend the Member for Aylesbury (Sir R. Bethell), than whom I may be permitted to say that, whether in office or out of it, there is no one who has 298 been more persevering or more energetic in his endeavours to effect a reform in this as in every other branch of law. We have the right hon. Member for Kidderminster (Mr. Lowe), the benefit of whose services on the Commission it would be impossible too highly to estimate; we have also the hon. Member for West Surrey (Mr. Drummond); the hon. and learned Member for Newcastle (Mr. Headlam); the present Chief Justice of the Common Pleas; the present Lord Chancellor of Ireland; a Gentleman formerly a Member of this House, Mr. Vincent Scully; a very eminent conveyancer, Mr. Lewis; Mr. Wilson, and a solicitor of very great experience and eminence, Mr. Cookson. We have adopted and we propose to the House a scheme founded, to a very considerable extent, upon the Report of this Commission. I say to a considerable extent, because we confine our plan of a register of titles to those cases in which a declaration of title has in the first instance been obtained. I venture to think that if at the time this Commission made their Report they had possessed the knowledge of that which has since been done by this House with reference to Ireland, they also might not have been indisposed to confine their recommendations in the same way, and after devising means of purifying the title once for all, have said that the registration should take its date from the purification of the title, and not to put the name on the register until a right and valid title should have been obtained. The difficulty of going further is this; that if you do not set out with an indefeasible title you will be obliged to register the title subject to all that may prevail in the shape of incumbrances or imperfections, extending, it may be, over sixty years or more. I must explain to hon. Members who may not have much considered this matter what is the precise meaning of a register of title. We are very apt at the first sound of the word to confound it with something perfectly distinct from it—namely, a register of deeds. Now, a register of titles has nothing on earth in common with a register of deeds. The objections to a register of deeds in this country are so manifest that hardly any person in the present day would venture to propose it. Those objections are of this kind:—To be worth anything a register of deeds must be made compulsory, and you must have it for the whole country. When you have got it, it will not simplify title in the least. It only puts on a formal 299 record the whole of that multitude of deeds and conveyances of the extent and complexity of which we already have so much reason to complain. You have to investigate and search just as before. In addition to that, you have to pay for searches in the registry, and also to pay in some shape or other the expense of placing the deeds upon it. Moreover, the cost to the country of the establishment by which a registration of deeds could be managed would be something which, I should think, none of us would like to contemplate. I believe the calculation is, that for this country you must have the materials for registering a thousand deeds every day. In the next place, a nugatory a very large portion of the dealings in land which turn upon the deposit of deeds. The last, and, perhaps, most formidable objection to a registry of deeds is, that it would involve a disclosure of the most secret transactions, settlements, family arrangements, and arrangements for the borrowing and lending of money, which I do not believe the country would for a moment tolerate. Therefore, I hope hon. Gentlemen will put aside all idea of a registry of deeds, and allow me to describe very shortly what I regard as a registry of titles. The best illustration we have of a registry of titles is furnished by the species of property to which I have already referred. Take the case of a ship, or of money in the funds. A ship is built, and John Smith is the owner of it. His name is put upon the register as the owner. When the ship comes to be sold, John Smith is the man to execute the conveyance, and if it is properly executed to another person, that other person in turn has his name placed upon the register, and the name of John Smith is removed. The register is the title to the ship. The deeds are immaterial. But then it may be said, "That is all very well in respect to a ship; but suppose there are complicated settlements and arrangements for the lending and borrowing of money, and that variety of traffic and transaction in regard to real property which every day goes on here. Do you mean to put all that on the register?" The answer to this is, that all that now occurs, both in the case of a ship and in that of Government stock, which, perhaps, offers a better illustration. There are settlements, mortgages, and intricate deeds, in respect of ships and stock which are behind the register alto- 300 gether; but still you have this great advantage, that as long as nothing is done to prevent the man whose name is on the register from making a transfer he can make that transfer, and the person who receives such transfer obtains a perfectly good and indefeasible title. And with regard to transactions which go on behind, the settlements or mortgages, if they are of a nature that leads the person interested in them to desire that there should not be a transfer, and those persons are entitled to require that the ship or the stock should not be transferred, means are provided, by what is called a caution or caveat or distringas, by which the transfer can be prevented, if there is reason to believe that the owner whose name is on the register is dealing improperly with the property. We propose, then, having once got an estate into such a position that it may receive a declaration of indefeasible title, to give to the person who has that declaration of title a power to put his name upon the register, and, once on the register, it must continue there. Whether the name is, or is not, in the first instance, to be put on the register, is at the option of the owner. We do not compel him to register, but if he does so, the name must continue on the register; and the name upon the register will always represent the right person (subject to the operation of the caveat) who is entitled to transfer. The same process will take place with regard to any subdivision of estates.
It will now, perhaps, be desirable that I should describe how we propose to meet the case of dealing with the land which we have thus got fixed on the register, and I think it will be best to show, in the first place, what we do with regard to dealings which fall short of a transfer of the estate from one man to another. As to leases, I do not propose that the Bill should affect twenty-one years' leases when tenants are in possession. They will go on as at present, and will not be affected by registration. With regard to longer leases, we propose that the holder of such a lease should have a right to put on the register, when his title is once proved, a leaseholder's notice; not a registry of his lease, nor a description of it, but simply a notice of his name and address. Where this leaseholder's notice is entered, then, before any dealings with any estate cars take place, the persons so dealing will have notice, and the persons proposing to purchase will have notice, that he is a 301 leaseholder. With regard to mortgages, which do not involve the transfer of the estate, what we propose is this:—Many people who borrow or lend money do not care a straw whether or not the fact is published at Charing Cross; while, on the other hand, many are unwilling that there should be any publicity. We shall endeavour to meet both of those cases. We propose that there shall be a power of registering mortgages, just in the same way as there are now registered mortgages of ships. These registered mortgages will thus be the title to the mortgage charge; they will pass by transfer upon the register from one man to another, and be in themselves a sort of estate in the charge; and they will always appear on the register as a check upon any dealings with the property. That will meet the case of mortgages as to which there is no desire for secrecy. But we propose that mortgages may go on unregistered, as at present, and that any person who has a mortgage may simply protect himself by a mortgagor's caveat, which will reveal nothing, but will entitle him to notice before any dealings to his detriment can take place with the land, while it will also serve as a notice to any person who is about to deal with the land that this mortgagee has an interest in it. This will meet both the cases I have mentioned, ensuring, on the one hand, a benefit from publicity, since charges upon the land will thus be more easily transferred, while, on the other hand, it gives security by means of a caveat, which will entitle parties to the notice I have mentioned. So much for dealings with the estate which do not amount to a transfer. I pass now to those which have for their object the transfer of the estate—that is to say, to sales and settlements. Under this Bill any intending purchaser of an estate will have only to say to the vendor, "I will give you so much money for your estate as soon as you show me that your name is on the register, and that there are no caveats. If there are caveats you must settle with them, and when you have settled with them, transfer the estate to me and here is your money." As to settlements, when it is wished to settle an estate, the course will simply be to transfer it to the names of the trustees of the settlement; and we propose to adopt a most valuable suggestion made in the Report of the Commissioners—namely, that those trustees—the House will, perhaps, excuse me for enter- 302 ing here upon rather a technical point of law—should be tenants in common and not joint tenants—that is to say, that there should be no survivorship as between them which would enable the survivor to deal with the land or to part with it; but that the moment one dies there should be an incapacity to deal with the land until another is appointed in his place. That provision will keep up the number of trustees, and will, I hope, satisfactorily meet the case of a settlement.
I have been speaking hitherto of transfers for valuable consideration. Here, as in the case of declaration of title, we propose that where the transfer is merely voluntary, and not for any valuable consideration, it should be dealt with according to the present law of voluntary dispositions, and that if there has been any fraud or impropriety, the transfer should not confer a title on the transferee.
The only other point in the scheme is that of caveats. We propose that caveats should be of two kinds—caveats proper and caveats of inhibition. Any person who thinks he has a right to be apprised of any dealings in respect to an estate upon the register may enter a caveat, the effect of which will be that no dealings can take place until the lapse of a certain number of days after notice to the Cautioner—just as is the case in matters connected with stock. If the owner undertakes to satisfy the Landed Estates Court by proper security to the extent of the whole value of the estate that the caveat has been wantonly and improperly entered, he may then, without waiting the specified number of days, have it removed. So, also, the Court may order the caveat to be taken off after hearing the parties, and if it has been wantonly entered the person entering it will be answerable for any damage caused by the delay. Caveats proper, therefore, will be put on the register simply by individuals. Inhibitions will be of a more permanent and formal character. When there is a settlement for a great number of years, the inhibition will operate as a restraint upon sale, and will be put upon the register by the Court itself, if it thinks fit to do so, until the expiration of a particular time; as, for example, until the children under a marriage settlement come of age. These inhibitions will be placed on the register by the Court, and it will not be in the power of any individual to enter them.
With this exposition of the measure, I 303 think the House will see that, if the machinery is fitted to work out the scheme proposed, these three advantages will be gained—first, perfectly unfettered dealings with the land, as at present; secondly, a clear title upon the transfer, speedily and simply acquired; and, thirdly, entire concealment of all transactions, such as settlements or mortgages, which it may be considered undesirable to disclose. The question then arises—Where do you mean to have this registry? We propose that it should be a metropolitan registry simply, and the reasons I have to assign, which I think will be satisfactory, are substantially those given by the Commission. In the first place it will be under the control of one central authority, the Landed Estates Court, and you will thus have a uniform and a safe mode of working. In the second place, a register of titles differs greatly from a register of deeds. In the latter case it is convenient to have the register as close to your door as possible; but in the case of a register of titles you only want to know one fact, and that may easily be ascertained in London. In the next place you have in the metropolis other registers, which must be searched on occasions of this kind—registers of judgment and of Crown debts—and no inconvenience has been found to result from their location here. Then again you have in London the same registries with regard to stock and railway shares, and no inconvenience accrues from the arrangement. In the next place, every solicitor in the country has an agent in London through whom he can make inquiries; whereas, if you have country registries, you will still be involved in the necessity of sending a considerable distance, and your solicitor will probably have no agent in the country whom he is in the habit of employing. Lastly, you will save a very great expense, because you will have only one establishment in London instead of a multitude in the country. With regard to the registry we propose also that it should be self-supporting, by means of moderate fees taken in return for the services which it will perform, such fees to be a matter of future regulation; and in this way we hope that very little charge will ultimately be imposed by the establishment of this office. I should add that, inasmuch as the register is to be confined to estates in respect of which there has been a declaration of title by the Landed Estate Court, and inasmuch as I have assigned a period of fifteen months to 304 elapse before there can be any declaration of title, it will not be necessary that the work of the registry-office should commence at once. I propose, therefore, that the operation of this Act should be fixed by Orders in Council according as it is found that the Landed Estates Court has made progress.
I have now, Sir, gone through—at considerable, but not, I hope, at unnecessary length—the measures which I have the honour to propose. I venture to hope that they will be found on examination not ill-considered, or involving any principle which this House has not in substance already sanctioned. I do not desire to represent them as measures which all at once, or even in a limited time, will regenerate and make simple the titles of land in this country. On the contrary, I am persuaded that a system which introduces itself without compulsion, by degrees, and just and only in proportion as it is suited to the objects it professes to attain, is the system best adapted for the tastes, the prejudices, and wants of this country. I believe that we have now an opportunity, without any danger, and at a trifling expense, of introducing a system of this kind. I believe that to those landowners who are able to avail themselves of the system, it will result in an immediate and substantial increase of the value of their lands. I believe that it will likewise prove advantageous to the interests of commerce, because it will have the effect of making land the subject of speedy and safe bargain and traffic, which in this country it never yet has been. And I believe that if this House should on consideration—as I hope it will—think right to adopt these measures, we shall have the satisfaction of thinking that, without endangering any right—without suddenly interfering with any long-established practice, and without a costly array of officers or office—bearers, we have at last taken a step, and that neither a trifling nor unimportant step, towards removing that complication and expense, which has long been the reproach of the law relating to land in this country. The hon. and learned Gentleman concluded by moving for leave to bring in a Bill to simplify the Title to Landed Estates.
§ SIR RICHARD BETHELL
I rise, Sir, in the first place, to express to the Government, who have had the good sense to see the value of this measure, and the resolution to bring it forward, the grateful thanks of 305 those who have so long desired the establishment in this country of a system for the easy transfer of land; and, in the next place, to express the great pleasure with which I have listend to the most admirable statement of the hon. and learned Gentleman opposite. He has treated it in a manner which evinced the most complete mastery of the subject, and whilst he abstained from entering too much into minutiæ and details, not fit at present to be brought before the House, the manner in which he has conveyed information to the minds of persons not versed in technical terms, must receive general approbation. I congratulate the hon. and learned Gentleman on being a member of a Government which has had the good sense to see the importance of this measure, and the Government on the good fortune they possess in having so excellent an exponent of its merits. Some of his predecessors have not been so fortunate, In 1853 a Bill for the registration of deeds was brought down to this House, and I then took the liberty of stating to the Government, of which I was at that time a member, my objections to the measure. The result was that a Committee was appointed to consider its provisions, and the Committee considered it one which they could not recommend to the House, and they suggested a sketch of a more expedient and beneficial system similar to that which has now been proposed to the House. That plan was embodied in the Report of the Commission of 1856; and I must say that some objections which have been felt to portions of that Report appear to have been duly considered by the hon. and learned Gentleman, and will no doubt be removed or obviated in the measure now proposed to be introduced. It is not necessary that I should at present enter into the details of this measure. The first grand point is the establishment of a tribunal having power to investigate titles to landed estates, and to declare the validity of the title; and the necessity of such a tribunal is proved by the experience we have of the benefit accruing from the establishment of the Irish Incumbered Estates Court. The functions of that Court are exhausted in that declaration, and what is wanted is a competent machinery to continue from time to time a Parliamentary title:—in other words machinery is wanted which will enable the vendor to say, "Here is a certificate that I am able to dispose of my estate free from incum- 306 brance;" or if he wishes to sell it subject to a mortgage or annuity, to state it on the register, and then to go into the market armed with that certificate and without the intervention of any legal forms or the investigation of any title, to part with the land and receive the money. If this Bill should become law there will be an end for ever to the delay and expense attending the investigation of the parchment title. The difficulties that have led to the present complication of title will be easily understood, when I mention that one of the chief sources of those difficulties has been the unfortunate determination of Courts of Equity that trusts to be performed by trustees of land shall attach on the property itself. The great difference between landed property and personal property is this—that the latter may be held and transferred without reference to any equitable interest or any title under trusts affecting the property. The possessor, therefore, has absolute power of disposition, and that power with respect to personal property is unchecked, except by the process of caveat. But you will observe that the land will be much more protected under the provisions of this Bill, because no disposition can be wade of a registered estate without the consent of the Court or the approbation of the registrar; and then, if the notification of a lease or caveat, or the existence of an inhibition be on the register, it will be impossible that any danger can arise. Suppose an equitable mortgage is required, it can be raised on the estate with the utmost facility; for it will only be necessary to have a certificate that the estate is registered, and the production of that certificate, and its deposit at the bankers', will be sufficient for all purposes connected with the mortgage. No doubt, when the scheme is laid before us, it will contain a sufficient mode of creating encumbrances on the estate, to be afterwards completed by caveat, which will entirely dispense with any of the existing formalities in the transfer of landed property. There are one or two points on which I think it necessary to withhold my opinion, and I only now notice them in order that my hon. and learned Friend may turn his attention in that direction. One naturally looks with a great degree of jealousy at the creation of an additional court. We have already too many courts and too many conflicting systems of proceeding; but what I wish to draw my hon. and learned Friend's attention to is 307 the manner in which this tribunal, which of it necessity must have a limited jurisdiction, is to be connected with other tribunals, to which resort must be constantly had to determine questions that will arise, not only on the declaration of title, but afterwards. When caveats have been entered, or inhibitions put in, questions will constantly arise as to what conditions must be observed previous to the estate being released from the operation of that species of injunction. In what manner those questions are to be settled, or what superior tribunal they are to be settled by, my hon. and learned Friend abstains at present from mentioning, though no doubt one will be provided. There is another point of some importance to which I wish to advert, in order to warn my hon. and learned Friend of the great difficulty he will have to encounter, and I mention from the experience I had in respect to the Testamentary Jurisdiction Bill. The great question arises on the interests of practitioners. I was willing to incur all the odium of establishing a metropolitan court of probate and registry of wills; but eventually I found myself compelled, mainly by the hon. Gentlemen who now sit on the other side of the House, to establish local registries as well; and I am afraid my hon. and learned Friend will be compelled to make a similar compromise in respect to this matter. I quite admit the superior claims of a metropolitan registry; but I have no doubt that great difficulties will arise on that subject. With regard to the other details of the Bill, they are so numerous and important that I will not at the present moment trouble the House by any observations upon them, all I can say is, that I am quite sure my hon. and learned Friend will concur with me in the propriety of giving considerable time after the Bill is printed to enable us to study them. The success of the measure will of necessity depend almost wholly upon the machinery being simple, economical, intelligible, and such as recommends itself to the country. It is of little consequence to the country at large by whom an important and useful measure is introduced; and I am glad that the measure now before the House has been brought forward by the present Government, because from their more intimate connection with the landed interest it will be more generally welcome, and will be accepted with greater confidence than if I had had the good fortune to have prevailed on the late Government to introduce 308 it. I assure my hon. and learned Friend that in all its stages the measure will receive the most cordial support from my hands, and I trust that so great a measure of legal reform, and one so well calculated to confer advantage upon the community will be successfully carried through both Houses during the present Session.
§ MR. DOBBS
expressed his general concurrence in the measure. As the establishment of the Incumbered Estates Court and the Court of Registry in Ireland had been alluded to, he must add that he thought the operation of the Bill would be much assisted by the order and regularity which prevailed in this country. At the same time he quite admitted that the establishment of similar courts in Ireland had been productive of great good, and he had no doubt the same results would accrue to England from the measure now before the House.
§ MR. AYRTON
said, it must be a source of immense gratification to those who, like himself, took part in bringing about the recent change of Ministry, to hear from such a great authority as the hon. and learned Member for Aylesbury (Sir R. Bethell), that it was necessary to place the present Government in office in order to inaugurate an era of comprehensive and useful reforms. But he wished to draw the attention of the hon. and learned Solicitor General to one or two points. The Bill was divided into two parts. One was a measure attempted some centuries ago, to give to landed gentlemen a judicial title to their estates. But, unfortunately, at that time legislation was not quite so elaborate as it was at present. From that day to this the system of giving a judicial title to an estate had been a great desideratum, both for landed gentlemen and for those who dealt in money, but it had not hitherto been established. He hoped the present Bill would be sufficient to protect, on the one hand, the honest owner in the possesssion of his land, and enable him, on the other, to deal as freely with it as he could with other kinds of property. The second part of the Bill was intended to relieve the landed interest from one of those doctrines of the Courts of Equity which had proved so injurious to the country that all trusts followed the land into the hands of a purchaser for value. But, instead of going into that subject, he wished to ask an explanation upon a point which the Solicitor General had not made quite clear to his mind. According to 309 the law of England a title to land was not complete unless it were followed by possession. In that respect there was some difference between landed and other species of property; and, while he admired the great ability which the Commissioners manifested in their Report, he could not understand how they came to subscribe the paragraph in which they declared that they could not discover any distinction between land and other descriptions of property, such as stock, railway shares, and ships.
§ MR. AYRTON
There was something very like it—that they could not recognize any distinction between the principles on which a person should deal with the one kind of property or the other. The Solicitor General was wrong in supposing that there was not a complete registry with regard to ships. No deed could affect a ship, nor could there be any interest in a ship, unless it was registered.
§ MR. AYRTON
It was so until recently, and ships stood on a different footing from land, inasmuch as a ship was always a single thing, and could be identified at once with the deed relating to it. A trustee in possession of stock had not a material thing at all, but merely a right to sue the Bank of England. Both ships and stock, however, were in the exclusive possession of those who had the title. It was not so in the case of land. The legal owner of an estate in land, speaking gene rally, was not in possession of it. Property was held in trust for gentlemen for life, and a person might be in possession of an estate and in receipt of the rents although his name might not appear on the registry, but only that of the trustee, Now, at the end of twenty years, according to the existing law, the trustee merely as the registered owner would have no right whatever to the property, because twenty years' adverse possession gave an absolute title: and what he wanted to know was, how the Solicitor General proposed to connect the possession with the title if there were to be no investigation into all the intermediate interests in the land?
§ MR. DARBY GRIFFITH
said, he was happy to add his testimony to the great merit of the measure; but he was desirous of inquiring of the Government, whether they proposed to adopt the precedent of the Irish Transfer of Land Act. Under that Act a rate of charges for transfers of 310 land had been established which was out of all proportion, and was totally opposed to every principle of political economy. He hoped the same rate of charge would not be adopted under this Act. The rate of charge in Ireland was much too high, and the result was that charging 1 per cent on all property kept large estates out of the Court.
§ MR. LOWE
said, he had listened with great pleasure to the admirable exposition of this subject which the House had heard from the Solicitor General, and could only echo what had been said by his hon. and learned Friend the Member for Aylesbury, that the introduction of this measure reflected the highest credit upon Her Majesty's Government. By bringing it in they were doing all they could to benefit the landed interest, an interest with which they were supposed to be so much connected. That, however, did not diminish the credit to which they were entitled for it, because, looking to the past, it was quite possible that their efforts might not be appreciated quite so well as they deserved by those for whose benefit they were made. Having had something to do with these matters at other times, he wished to give an answer to the criticism of the hon. and learned Member for the Tower Hamlets (Mr. Ayrton). That hon. and learned Gentleman seemed to think that those who framed the Report of the Commission had fallen into a confusion of terms, in endeavouring to liken the transfer of land to the transfer of a ship, and that ships, stock, and land, were things so essentially different in their nature that the same principles could not be applied to them. As well might he contend that the same auctioneer could not sell the three. It was quite true that there were many obvious differences between these three things; but it was equally true that they were all capable of being represented before the public by a person clothed with all the attributes of ownership, for the purpose of transferring them, while the beneficial ownership did not appear before the public, and might be subject to any modifications which persons chose to impose. The system upon which ships were transferred was brought into operation by the Merchant Shipping Act of 1854, two years before the Commission made its Report: the system had been completely successful, and from his experience at the Board of Trade he could state that it had given the greatest satisfaction to the owners of ships, With regard to stock, the system had 311 been in existence for 100 years, and therefore the Commissioners were not without grounds for thinking that this system of having one person to represent the ownership for the purpose of transfer, and leaving the beneficial interest to be arranged as parties pleased among themselves, had been well tested, and was well worthy of approbation. The hon. and learned Gentleman (Mr. Ayrton) had also asked how it was possible to connect the title on the register with the possession of land. How was a title shown by deeds now connected with possession? A man might produce deeds showing a good title; but how did that prove that the deeds had any relation to the land which they professed to convey? All lawyers knew that you must go to the land itself, and there pursue inquiries into the possession on the one side and the deeds on the other, until you brought the two to some point of contact. In the same way, after this Bill was passed, if it became law, a man would have to take what was shown on the face of the register, ownership, mortgages, caveats, inhibitions, and whatever was shown there, as a starting point, on the one side, and on the other must, with such assistance as he could obtain from the seller, pursue his investigations upon the land until he brought the ownership and possession to a point of contact, and satisfied himself that there was a good title. The difficulties, such as they were, were ejusdem generis, and could be easily removed in the same manner. There were no objections to this plan, which had not been thoroughly considered by the Commission in the course of its three years' incessant labour; and although he might not have replied to the hon. and learned Member for the Tower Hamlets so well as the Solicitor General would have done, he was anxious to show that even the least learned and least competent members of the Commission did not venture to launch a matter of this enormous importance, and dealing with such vast interests, without at least having given to it the consideration which it deserved.
§ MR. MALINS
said, he fully concurred in the observations which had been made as to the ability with which his hon. and learned Friend the Solicitor General had introduced this measure, and would promise that the Bill should receive his best consideration. At the same time he thought it right to state that the impression on his mind was, that rather too sanguine expectations were enter tained as to its results. He was a great advocate for simplifying 312 titles to and transfers of lands; and if it could be done, it would be a great benefit to the public. But great benefits had of late years been conferred in this way, and he could say that titles to land had been simplified and the laws relating thereto had been greatly simplified; still he admitted that these laws were very imperfect, and if it could be proved by experience that titles could be simplified, and that the new Court—call it by what name they might—could, by declaration, give the owner of land a title which should be conclusive when he sold, mortgaged, or otherwise dealt with his estate, it would be of the greatest possible benefit; but as this was to be confined to owners in fee who had been in possession for five years, and as no judicial declaration was to be finally made until the end of fifteen months, he was afraid that the measure would not be of so extensive application as might at first sight be expected. He was glad that the registration was to be a registration of title only, and not a general registration of deeds; but, as it was to be confined to titles judicially declared to be good, it would only apply to comparatively few cases. The Irish Incumbered Estate Court had now been in operation ten years. Suppose the case of a gentleman who purchased an estate which obtained a Parliamentary title in 1849 from the Incumbered Estates Court. If he wanted to sell that estate at the present moment, the title would commence from 1849, instead of going sixty years back, and that, no doubt, would be a simple and advantageous circumstance. But if there had been great dealings with regard to this estate—if there had been mortgages, charges of any kind, settlements, and wills, they must form a part of the title. So it would be with this Court. If A and B had £10,000 Consols standing in their names, and if they sold it to another man, he had a good title, although A and B might have combined to defraud the person for whom they held the stock in trust. But if in the books of the Governor and Company of the Bank of England they made provision for caveats, inhibitions, and notice of all deeds affecting Consols, where would be the simplicity of the title to stock? Unless the House determined to sever the legal ownership from the beneficial ownership—unless they conferred a title to land as they now did to stock—by no ingenuity could they get rid of a difficulty which was inherent in the ownership of land. So long as the law permitted, as it did, greatly to the public ad- 313 vantage, a system of estates for life, with remainder in tail, and portions for younger children, with other complicated arrangements, the house might continue to have glittering pictures of simplicity of titles to land, which would, however, only be simple for a time. A judicial declaration would enable the owner of land to commence with a good and short title, but after a series of caveats, inhibitions, and complicated settlements, the title to the land would, in the course of time, become just as complicated as ever. If, however, the Bill, upon an inspection of the details, should appear calculated to diminish the complications which at present existed, he would give his hon. and learned Friend his best assistance in perfecting the measure.
§ MR. HADFIELD
thought that if the Solicitor General loaded the title with all the equitable interests that might affect it, he would gain very little by this Bill. He had great doubts about making the office for all this business in London. In Lancashire the subdivision of property was almost infinite, and it was not so easy for country attorneys to commission their agents in London to make these inquiries as the hon. and learned Gentleman appeared to think. As it was to be optional for parties to come before the Court or not, he anticipated that very few landowners in Lancashire and Yorkshire would come into Court with their titles.
THE SOLICITOR GENERAL
said, he was very much obliged for the suggestions which he had heard, and he could assure hon. Gentlemen that they should have the fullest consideration; but, with regard to several of the objections, they would find, on looking at the Bills, that they had no existence. He hoped the Bills would be the hands of Members on Wednesday morning next, and that the House would take the second reading on next Monday fortnight.
§ Leave given.
§ Bill to simplify the Title to Landed Estates ordered to be brought in by Mr. SOLICITOR GENERAL, Mr. Secretary WALPOLE, and Mr. ATTORNEY GENERAL.
§ Bill presented and read 1o.