§ Order for Committee read.
§ House in Committee.
§ On Question that the Preamble be postponed,
§ MR. SLANEY
said, he rose to bear the testimony of his gratitude to the hon. and learned Gentleman (the Solicitor General) and Her Majesty's Government for having brought in the measure. He happened to have been Chairman of a Committee relative to the condition of the working classes, and he was satisfied that nothing could aid those classes more than a Bill whose object was to simplify the transfer of landed property. He looked upon this measure, therefore, at once as a boon to the landed interest, as of much value to all who wished to make investments in small portions of land, and of the greatest possible benefit to the country at large. It had been long wanted, and he believed that without injuring any one it would give increased value to landed property, and enable many persons in the vicinity of towns to obtain small portions of land, which they could not do under the existing complex system of law, unless they first went to the expense of examining intricate questions of title.
§ MR. MALINS
said, the House was going to consider in detail the provisions of a measure the merits of which they had not yet discussed. For himself, he had very great doubts whether it would be found very extensive in its operations, or prove so beneficial as his hon. and learned Friend the Solicitor General (Sir Hugh Cairns) anticipated it would. As he had accidentally lost the opportunity of raising a discussion on those points when the Speaker put the Motion, he should now, with the permission of the Committee, proceed to do so, and for that purpose move, pro formâ, that the Chairman report progress. [Mr. HADFIELD: Hear, hear!] That the object of the Bill was a most desirable one to be attained no one would deny. Its principle was this—that there should be estab- 96 lished a Landed Estates Court in England, to which a person, being seised in fee—in other words having the fee simple of property or possessing absolute dominion over it—should be entitled to apply for a judicial declaration of his title, and that judicial declaration being made the title was to be registered, and be conclusive against all the world. In other words, upon this judicial declaration would be granted a Parliamentary title. In the able speech with which his hon. and learned Friend introduced the Bill he referred to the Report made by the Commission of 1854, which reported in 1857; and he stated that the perusal of that report had produced a profound impression on his mind. That being so, he (Mr. Malins) certainly expected to find that the Bill was in conformity with the report, but to his surprise in some of its most important points his hon. and learned Friend's proposals were diametrically opposed to it. Thus, the Bill proposed to constitute a court which should make a judicial declaration of title, the registration of which would be conclusive against all the world; but the Report of the Commissioners was altogether opposed to such a system. He would now, however, mention some of the practical difficulties which stood in the way of an extensive application of the Bill. In the first place, the Bill did not propose that the application to the Court should be compulsory; on the contrary, it was to be entirely optional; and that of course would greatly diminish its operation. In the next place, the measure was to apply only to lands of which the owners were seised in fee, that was, several persons seised in fee, or one person for life, with remainder to others in fee. The person making the application, however, must have control over the fee, and come before the court voluntarily. That provision again would greatly abridge and narrow the operation of the Bill. It would exclude all settled estates, all copyhold estates, and all estates held for years, for lives, or for any other estate less than a fee simple. Now it struck him (Mr. Malins) that no measure of this kind could have any great value unless it were general and even universal in its application; yet his hon. and learned Friend proposed that it should apply only to tenants in fee. He also proposed that before the first judicial declaration fifteen months should elapse, and before the final declaration two years. It happened that bad titles were very rare. The titles that were rejected 97 by mortgagees or purchasers because they Were bad were almost infinitesimal in number. He had recently applied to an eminent conveyancer in Lincoln's Inn, and asked him what he thought was the proportion of titles which he had investigated on behalf of purchasers and mortgagees, and which were ultimately rejected because they were bad; and the reply he received was that they were so few that he was almost afraid to name them. A man might treat for the purchase of an estate over which other persons had rights interfering with the absolute dominion, such as a right of sporting, but with the concurrence of the parties interested those rights might be released and the title perfected. As the owners of estates were to come to the proposed court voluntarily, they must be divided into two classes—namely, those who had good titles, and those who had not. Let it be borne in mind, however, that changes in the ownership of land in this country were not very frequent. True, there was always a large quantity in the market, but taken with reference to the aggregate in the country, it had been found that land did not, on the average, change owners oftener than once in thirty years. Particular estates might often change hands; but taking a thousand estates they would find that they did not change more frequently than once in thirty years; and in such cases all a man had to do was to refer to his own solicitor to make out his title. A man who had bought land ten or fifteen years before and had enjoyed undisputed possession ever since was not likely to incur the expense and delay of an application for a declaration of title whenever he wanted to borrow money or sell his land. Did the Committee believe that land was being depreciated in value? Had it touched a low price in consequence of doubts with regard to titles? Did they not know that every year land was increasing in value, and that the minimum price for which it was now sold was thirty years' purchase, whilst in some cases it reached as high as thirty-five. If, then, it were argued that land was not valuable on account of the difficulty in mortgaging or selling, he begged to deny the fact. He had received assurances from the most experienced conveyancers that although occasionally a title might be delayed considerably, yet the average of purchases were completed as soon as the parties desired to complete them; and that in all cases where they were desirous of 98 completing their contract the period between the commencement and the completion of the contract was from three to four months. Supposing, then, that an owner of land had a good title would he go to a court and wait two years for a judicial declaration of that which he knew already to be true, and of which he was in the daily enjoyment? On the other hand, if a man suspected that he had not a good title, was it likely that he would go to the court, expose it to a Judge, and have it decided and proclaimed that he could not show a title? What would become of the estate of a man when it was known that he had applied for a judicial declaration of title and that a declaration had been made that he had none? How many years' purchase would be struck off the value by this means? The fact was that time removed all these difficulties, and the title that was bad in 1860 would be found to be good in 1870 or 1880. The suitors in the court, therefore, might be divided into those who had good titles and those who had doubts whether they had or not. In other words those who would not apply and those who could not apply—those who would not apply because they were satisfied with their titles and did not want a declaration; and those who could not apply because they had doubts and feared they would not obtain it. The principle of the Bill being that there should be a judicial declaration and a Parliamentary title, let the House see what the Report of the Commissioners said upon the subject; but first observe what took place last year upon the Irish Landed Estate Bill. For the first time it was proposed last year to extend the principle to unencumbered estates, and to allow a man who did not mean to sell to come before the court and obtain a judicial title. He objected to that on principle, because it was unknown to the law that absent parties should be bound in any way by a judicial declaration. Indeed, he did not think it very likely that persons would so come; and he was confirmed in his opinion by what was stated by the hon. and learned Member for Ennis (Mr. FitzGerald) the other night on another subject, that since this Bill came into operation in Ireland there had been only two applications made for such a judicial declaration; and he (Mr. Malins) understood that both these applications had since been withdrawn; so that practically there had not been a single application. His hon. and learned Friend had referred in support of his Bill to the 99 Report or the Commission on landed titles, but he maintained that that report gave him no support whatever. But before going into that report he desired to say that it was contrary to the law of England that the rights of B, who was absent, should be prejudiced on application of A, who was present. His hon. and learned Friend alleged that due provision had been made for such a case by advertisements in the papers, and by placards posted over the estate. That was all very well; but how often did it occur that parties did not know they had a title. He remembered a case where he was counsel for an hon. Gentleman who for many years had been a Member of that House; he was applied to concur in the conveyance of an estate, and he replied that he had no objection to concur, but he would like first to look into the rights of the matter. When his advisers came to look into the title, he found, to his great surprise, that he had a legal claim to the estate. The claim was contested, of course, and he (Mr. Malins) fought the gentleman's case through all the Courts of Westminster Hall, and finally established him in possession of a considerable estate, of which he would never have heard but by the accident he mentioned, and of which a judicial declaration would have barred him for ever. But suppose the case of an unborn child, or the case of an infant whose guardians were not aware of its rights, their claims would be equally barred by the operation of this principle. In fact, if this principle were adopted gentlemen would require to spend their lives In reading advertisements and in keeping agents to look after placards, lest some persons should unaware sell the estates to which they had some claim. His hon. and learned Friend professed to found his Bill on the Report of the Commission, and that report had gone into the question of Parliamentary titles, but its conclusions were somewhat different from those of his hon. and learned Friend. The report was in favour of a register of titles, but the Commissioners objected to any scheme for giving Parliamentary and unimpeachable titles. Such a scheme would be oppressive to claimants, and would be still more oppressive to those who were put upon their defence. They considered that to make a judicial or a quasi-judicial declaration of title an indispensable requirement to being put upon the register would be objectionable. The expense would exclude all the small proprietors, and the trouble 100 would exclude many others; so that the Committee would observe this report was diametrically opposed to the provisions of the Bill which required that there should be a judicial declaration. The report was also diametrically opposed to the establishment of a Landed Estates Court. His hon. and learned Friend in this Bill proposed the establishment of a court to consist of two Judges whose business should be to investigate all titles and to declare whether they were or were not good. What was the object of all this? He knew it was a favourite scheme with many gentlemen to simplify the registration of titles and the transfer of land. To a certain extent he was an advocate for both those objects; but let the Committee never forget that the same system could not be applied to land as was applied to ships or to money in the public stocks. If, indeed, the House declared that land should not be settled to secure portions, jointures, and the like, then undoubtedly they might simplify the transfer of land. The great difference between land and stock might be seen in the usual settlements of land. An estate in land was settled upon a man for life, with remainder to his wife, with remainder to his first and other sons, with remainder to trustees to provide for younger children, with power to tenants for life to grant leases, to sell and exchange and the like, and if you abolish those settlements, which seemed to him the most rational the world had ever seen, then, to be sure, titles might be simplified. The land tied up in such settlements as those he had referred to, comprised a large portion of the surface of England, and all that portion of land was excluded from the operations of this Bill, because his hon. and learned Friend applied it only to that land of which persons were seised in fee. He knew there were many persons who had no experience whatever of the operation of settlements in this country, who could not understand why land should not be transferred as easily as money in the stocks [Hear, hear!] Yes, he heard that cheer. But one difference between them was this, that everybody knew the land could not run away while they were sleeping. Could that be said of money in the Funds? How often did it happen that a surviving trustee applied the money in the Funds to his own benefit, and the real owners were ruined? Who would trust a settlement on a ship with the same security as they would trust a settlement on 101 land? If they intended to maintain the old character of English settlements, it was a sheer delusion to suppose that the transfer of land could be made as simple as the transfer of stock, or of a chair or table. How, then were they to attain further simplicity in the transfer of land? Why, it was in the course of being simplified. It had already been greatly simplified in the course of his own experience, in consequence of the old causes of delay and other abominations that had been swept away by those reforms that had followed on the Report of the Commission moved for by Lord Brougham in 1828; and as they went on with the simplification of the law, be the titles to estates and transfers of land would also be simplified. If his hon. and learned Friend should succeed in passing this Bill, it would be many years before it came into extensive operation, because a large portion of the property of England was excluded from its operation; and of the rest, the owners might be divided into two classes—those who had good titles, and those who had bad; and of these, the first class would not go, and the last, could not go to the Court. If the Bill passed, he apprehended that its operation would be so limited that you would be establishing Judges with nothing to declare, and a Register Office with nothing to register. If, however, the House thought that the experiment ought to be tried, he should offer it no opposition, and though he belived that some of the principles which he had already pointed out were dangerous in their nature and mischievous in their operation, he should be very glad to find himself mistaken, and this he would promise the House, that if hereafter he found that his hon. Friend was right, and he wrong, he would not be slow to acknowledge it.
said, he wished to take that, the earliest opportunity, to express his admiration of the manner in which his hon. and learned Friend had introduced this Bill, and to express his cordial concurrence with the scheme contained in it. To say that the principle of these two Bills was a judicial declaration of title was not either a full or accurate statement. The principle of these measures was the registry of the land itself—that is to say, that each piece or parcel of land should be registered in the names of certain individuals as ostensible owners to whom, and to whom alone, a purchaser would have to apply, so that the onus of investigating the title would not be as now, cast upon the purchaser, but 102 he would be able to say, if you can put my name upon the register, then I will try. If you cannot do so, then you have not made a title to the land, and there is an end of the bargain. In this way a purchaser would obtain when his name was once upon the registry a perfect and indefeasible title. His hon. and learned Friend the Member for Wallingford had told them that there was a great difference between land and funded property; and that was no doubt true. They differed in many most important respects, but it did not follow that the mode of transferring the one should be totally different in land from the mode of transferring the other. The difference between the titles to them even at present was one of degree rather than of principle. Stock might beneficially belong to one, and yet stand in the name of another. Stock might be made the subject of settlements of all kinds; a description might be beneficially given to one for life, with remainder to children, born and unborn, and yet consistently with all this people bought in the market without difficulty and with perfect security from those whose names appeared in the books of the Bank of England. So also land might be settled for a term for life, for further estates to arise upon certain contingencies, and for estates in favour of younger children; with power of jointuring, power of leasing, selling and exchanging; and yet in a well-drawn settlement cont emporaneously with all these estates and in terests there would be a power in trustees to revoke these trusts and to sell, and the purchaser would obtain a perfectly good title from the trustees. That was the case now, and it was a similar principle which was embodied in this Bill, and he saw no insuperable difficulty in giving by statute the same power to the registered owner which was now possessed by trustees. At the same time he did not deny that there were difficulties in the way of this change, as there would be in the way of all great changes. A case was stated by the hon. and learned Member for Wallingford when the heir-at-law discovered his title to the land which he was asked to concur in conveying. The example proved nothing against the Bill—the same investigation which, under the present practice, brought to light the title of the heir-at-law, would, if the Act were in operation, have a similar effect, and the title of the heir-at-law would be discovered and established, A case might undoubtedly be conceived when injury would be done under the sys- 103 tem to be established by this Bill. Take the case of a legal estate for life in A, and a vested legal remainder in an infant child—such a remainder could not now be affected by any one whatever; but if this Bill were law, and this remainder were not discovered, and the life estate supposed to be an estate in fee, the child might be deprived and an indefeasible title conveyed to a purchaser upon the register beyond appeal or recovery. But, then, the supposition involved a chance so infinitely small as to weigh for nothing. Instead of a legal estate, suppose the remainder were an equitable estate, and that a conveyance were made to a purchaser without notice, then, under the present law, the equitable estate would be destroyed. The dangers that now affect equitable estates might in some cases be extended to legal estates. This was the extent of the evil. He thought the advantage this Bill would confer to be so great that the very improbable evils which he had been considering ought not to weigh against it. He spoke confidently, for, to say the truth, he had long considered the subject, was and no recent convert to such a scheme. So long ago as the year 1848, when the Irish Incumbered Estates Bill was before the House, he suggested such a scheme as this to the present Master of the Rolls as a necessary complement to that Bill. Again, in 1850 when a Bill for the registration of assurances was before the House, he laid on the table clauses to substitute such a scheme as this, which clauses were then printed, and contain the views he then entertained upon the subject. Moreover, he was one of the Commissioners which reported on this subject in 1857, and this plan was in many respects similar to that which was proposed. It is true that certain portions of the plan did not meet with his concurrence, and he was obliged to signify his dissent, and add a memorandum of his own to the Report of the Commission; but the Bill did not contain those provisions to which he was opposed, and he therefore cordially concurred in the general scheme of the Bill. He had mentioned the chief difficulty which had occurred to him—namely, that there was a possibility of a remote legal estate being injuriously affected under the operation of the system to be established by this Bill; but he contended that the danger was so small that it ought not to prevent the House accepting the Bill. He thought also that a hardship might arise in. future to persons selling under condi- 104 tions of sale, for the general rule would in future be that a purchaser would insist upon an indefeasible title, and not be satisfied with a title, the merits of which he was precluded to investigate by conditions of sale. He would also ask whether his hon. and learned Friend had sufficiently considered the cases of leases of coal, iron, and other articles of value under ground, which occurred in the North of England chiefly, and in other mineral and manufacturing districts. These leases were often held by very complicated titles, not only as regarded what was below the soil, but also with regard to surface rights. Some of these rights were secured by personal covenants only, and others by covenants running with the land; and he wished that his hon. and learned Friend would direct his attention to the point, and meet the objection by adding further clauses to the Bill. In conclusion he (Mr. Headlam) did not understand the object of the hon. and learned Member for Wallingford (Mr. Malins) in making- the speech he had done at this particular period. After the statements they had heard that this Bill would interfere with the well-being of society, and disturb the settlements of the country, he thought he should have taken some step that would have tested the opinion of the House upon the merits of the Bill. Had the hon. and learned Member taken that course he (Mr. Headlam) should certainly have given his vote in favour of the measure.
§ MR. BOWYER
said, he did not rise to oppose the Bill, but to make a few observations on the important question to which, it referred. He believed, that the discussion of the subject would be attended with advantage, but he was by no means sanguine as to the utility of the Bill if it should pass into law. He objected to the measure because it was apparently a sort of palliation of the bad state of the law of real property. In his opinion, the proper mode of dealing with that question was to ascertain what were the defects of the law, and what were the reasons which prevented the easy transfer of real property, and consequently diminished its value. But what did this Bill propose to do? The Bill attempted to facilitate the transfer of land irrespectively to the law which governed real property. The Bill proposed to create a Court of a most anomalous description, upon which it was proposed to confer a jurisdiction unparalleled in the history of jurisprudence, unparalleled anywhere except in Ireland; and even there 105 this jurisdiction had not been practically exercised, for he had been informed that not a single instance had occurred in which the only branch of the powers of the Irish Court which this Bill proposed to transfer to England had been brought into actual operation. According to the ordinary principles of judicial proceedings, they ought to have judex actor et reus; they must have a plaintiff and defendant; and one of the very first principles of law was, that decrees of the Courts had no effect except with respect to the rights of persons who were before the Courts. But this Bill proposed to create a Court whose decrees would hare effect upon persons who were not before it, and who might have no notice or knowledge whatever that any interference with their rights was contemplated. If this proposal showed anything, it proved the very defective state of the law of real property; and it must be admitted that that branch of the law was in a most complicated and unsatisfactory state, although, as the hon. and learned Member for Wallingford (Mr. Malins) had observed, a great deal had been undoubtedly done to simplify it. He was not, however, prepared to admit that the state of the law was such as to justify the creation of a Court with a jurisdiction opposed to every principle of jurisprudence which regulated judicial proceedings. The Irish Estates Court had two branches of jurisdiction. The first related to forcing the Bale of incumbered property, and the other to the declaration of titles. His hon. and learned Friend the Solicitor General did not propose to apply the first branch of that jurisdiction to this country; but he did propose to give to the Court to be established under this Bill the power of declaration of titles. He objected to the Bill, because it would attempt to do what was impossible—to make a bad title a good one. His hon. and learned Friend might not admit the justice of that statement, but if the measure did not do that, it would do nothing. Now, undoubtedly, a man who had a good title would not go to the Court, for if any one laid claim to his property, the claimant must prove his title. This Bill proposed, however, that a man who was in possession with a good title should require the Court to declare his title good. The answer in such a case would naturally be—"Quis accusavit? If you have a good title you may surely be satisfied." But suppose the applicant not to have a good title, how could the Court 106 make it good? Suppose the Court should examine the title and find that it was not satisfactory, in what a position would the applicant be placed If by so doing he made known a fatal objection to his title, he (Mr. Bowyer) believed, that under such circumstances most people would say that he was rightly served; but did his hon. and learned Friend think that landowners would expose themselves to such difficulties? Another objection to the Bill was, that it was confined to estates of fee simple, but very few persons, except small proprietors, possessed estates in fee simple, and consequently very few cases could occur in which the Bill would operate. The law of real property undoubtedly required improvement. When it was asked why real property could not be transferred as easily as personalty, he would say that the answer was to be found in the whole course of the history of England, and that these difficulties were attributable to the feudal system. By the civil law land was as easily transferred as personal property; but under the English law the difficulties of transfer were enormous. If, however, the law of real property were assimilated as much as possible to the law of personalty, they would then materially facilitate the transfer of land. That was the real object which the House ought to have in view; and after much examination of the subject, he had formed a strong opinion that the only system of registration which would be found useful was a registration of deeds. Such a registration existed in every country in Europe except our own. It was as ancient as the days of Justinian, and was adopted where ever the civil law prevailed. The answer to this suggestion probably would be, that the number of deeds affecting real property in England was so great, that it would be impossible to carry such a registration into effect. He admitted the argument to its fullest extent, but it only corroborated his opinion that if you wanted to improve the transfer of real property you must begin by improving the law of real property, so that the multiplicity of deeds now necessary might be dispensed with. This would be easily done. A great advance towards it had been made in modern legislation, and when the law was brought, into such a condition that land could be passed freely by contract, and when there were not two sets of Courts administering the law on different principles, it would then be possible to establish a re- 107 gister of deeds to answer every purpose which this Bill was intended to accomplish. It was now proposed that, to a certain extent, after registration the title in process of time should become indefeasible. But there was a much more simple way of doing this. What was wanted was a good Statute of Limitations, which would answer all the purposes of a declaration of title and a register. It was true that we had a Statute of Limitations already, but practically it was a failure. The Judges had got into the habit of discountenancing this statute, and had picked so many holes in it that it could rarely be relied upon. They were not of the opinion of Justinian, who spoke of Statutes of Limitation as the friend of law—amicus juris præscriptio. The statute at present in force was intended to give a title after thirty years' possession; but it was still necessary to go back sixty years, the chief reason being that, as remainder-men had no means of asserting their claims during the continuance of the life estate, their case had to be provided for. Now, the defect might be cured by instituting declaratory actions, and by providing that Statutes of Limitation should run notwithstanding the existence of life estates. The Bill, notwithstanding its defects, altogether deserved great consideration, but he could not withhold his opinion that practically it would prove of very little utility.
§ MR. HADFIELD
said, he regretted that this Bill had not been discussed more fully and effectually, for the objections to it were both numerous and weighty. He concurred in the sentiments of the hon. and learned Member for Wallingford, whose eminence as a conveyancer was generally acknowledged; and he was glad that hon. and learned Member had expressed his opinions on this important Bill. No measures like that before the House, to accomplish the objects proposed by the learned Solicitor General could be safely enacted unless the law was changed, so as to make the owner of the legal estate in freehold and other property, whether a trustee or otherwise, the absolute proprietor, and empower him to discharge the property itself, from all equitable and other interests, under settlements, wills, and like instruments. That, however, was the actual state of the law, in respect to trustees and others interested in Government stock, India stock, railway stock, monies out on mortgage, and the like; and in all these cases trustees, as well as owners, liable to 108 equitable interests, had absolute power over the trust and other property affected, and they could sell and transfer it, without making the purchaser responsible for any abuse of trust; and, under this state of the law, there was no difficulty in transferring property, without investigation of title, or inquiry whether there were any existing liabilities or charges on it. They might give the same facilities for the transfer of land as they did for that of stock, but wa3 the country prepared to give to trustees and persons in possession under wills and settlements the whole power of dealing with landed estates? He thought not, and yet until that was done, the present system of conveyance must be adopted, in order that all interests might be ascertained. He believed that the Bill would not apply much to small properties, for it would be out of the power of the owners to avail themselves of it. Such persons had very seldom got strictly marketable titles. Thus, in South Lancashire, what were called "leases for ever" were very common—that was, fee simple estates subject to a rent-charge; and sometimes there were rent-charges upon rent-charges to an almost infinite degree. How could such persons trace out and register the ramifications of their titles? When, too, it was remembered that the office was to be 200 miles off, the measure would be to all intents and purposes useless as regarded the northern counties. The hon. and learned Solictor General had said, that professional men in the country usually employed London agents, who could make searches and inquiries, and transact business from the country for them in town; but, practically, this could not be done, because local and personal knowledge could not be transferred to strangers at a great distance, however able and skilful they might be in their general business, and who must entrust agency business like this to the management of their clerks and subordinates. It seemed to him that the measure would also multiply fraudulent transactions to an immense extent. Under the present system of conveyancing, few cases of fraud arose, whatever other inconveniences might arise. He would further remind the House that one of the greatest legal authorities in the land, Lord St. Leonards, had lately declared himself to be no friend to this kind of registration. The legal profession, generally speaking, were also opposed to it, not from the base and undeserved motives generally and maliciously ascribed to them, 109 but because they honestly believed that it would increase, and not diminish professional charges and other expenses. The difficulties in the way of the measure were so numerous and serious, and the advantages likely to be derived from it so small, that he confessed he could not place any faith in the Bill.
§ MR. WALPOLE
said, that the arguments which had been urged against the Bill by his hon. and learned Friend the Member for Wallingford—than whom no one was more competent to give an opinion on a question relating to the law of real property—were in his opinion (with respect be it spoken), so weak as to show that the objections were not very formidable. The objections which had been put forward by the hon. and learned Gentleman might be classed under two heads—firstly, that the granting of a judicial declaration of title to land was an entirely new proceeding in this country; secondly, that the Bill, if it were to pass into a law, would either be wholly inoperative or would apply only to cases in which its operation would be mischievous. Now, in answer to the first of those objections, he (Mr. Walpole) might state that the system of fine and non-claim, which was well known in our legal proceedings, amounted in effect to a judicial declaration of title, so that the Bill could not justly be said to introduce a principle which was perfectly novel. And with regard to the second objection, what, let him ask, would the new Court do when application was made to it for a declaration of title by a person who claimed to be owner in fee simple before it acceded to the request? It would do in substance that which was now done by the purchaser in his own behalf. It would appoint its own conveyancer and solicitor to examine whether a good title to the property in question existed; abstracts of title would be produced; objections would be taken, and, if they admitted of it, cleared up; and then, if the Court were satisfied with the result of the investigation, it would pronounce the title to be good. All that would take place under the operation of the Bill. Everybody who was conversant with the subject was aware that there was hardly an instance where the soundness of a title which had been carefully inquired into by an experienced conveyancer and solicitor, had afterwards turned out to be defective. The process which he had just described was that which was now gone through 110 every day in a conveyancer's chambers, and why, he should like to know, was it to be supposed that because the same task was to be intrusted to the new Court—which it was but reasonable to expect would perform it with even greater care—the rights of individuals would be likely to be prejudiced? But his hon. and learned Friend had gone on to contend that the Bill would prove inoperative. Now, it was perfectly true that in those cases in which a person had a defective title, or one with respect to the validity of which he entertained some doubts, he would in all probability be unwilling to make application to the Court, unless he could clear up those doubts, and in cases where the estate was small, he would not probably go to the Court unless he had ulterior views. But if a person so situated wished to dispose of his property, the title to which could best be obtained in the operation of the Bill now under discussion, he would at once, as a matter of course, apply for a judicial investigation of title, and thus seek to clear the property, as far as he could, from any cloud which might rest upon it, and at the same time the purchaser would aid him, since he would desire to procure the registration of his own title in a simple form, so that the necessity for future expense in conveying the estate might be done away with. Such, in his opinion, would be the real operation of these two Bills, and although their action might not be of so extended a nature as was desirable, yet it would confer the great advantage of enabling a person to make and to keep his title clear when once a declaration of its soundness had been granted. But his hon. and learned Friend had referred, towards the close of his speech, to the cases of ships, stocks, and railway shares, and had asked how it could justly be maintained that there was so great a similarity—for nobody contended there was a perfect identity—between land and that class of property as to justify the House in dealing with both classes in the same way. Now, let him (Mr. Walpole) suppose that a colony was founded under the authority of the Crown; that funds were raised for its benefit, which constituted stock, by means of which its Government was to be curried on; that shares were taken by different individuals, who were desirous of constructing railways within it; that merchants went out and bought ships for the purpose of promoting its traffic; while others got allotments of 111 lands, all having a joint interest in the welfare of the colony, which interest was represented under the terms "ships," "funds," "railways," "lands;" would it not be wise, he would ask, under those circumstances, to confer upon each of those classes the same benefit of being enabled to register their title to their property, and to hand it over without any of the complications which prevailed in regard to land in this country to anybody who might wish to purchase it from them. Would any one contend that these proprietors should be dealt with differently, and that the title to the one should be always simple, while the title to the other should require a history of sixty years to be read and studied before it could be accepted. As to the argument that land was made the subject of trusts or settlements, was charged with portions for younger children, was leased for mining purposes, and, therefore, ought not to be dealt with like any other species of property, he would only say that money in the Funds was liable to be made the subject of the same, or, at all events, very similar trusts and limitations. Why, then, should they ask for a greater security for those who possessed the beneficial interest in land than for those who had a beneficial interest in stock? The real truth was that in both cases the beneficial interest was kept behind, and the object of the Bill was not to deal with the beneficial interests, but to provide means for the purpose of dealing with land as with stock, without the necessity of giving a narrative of every birth that had occurred, of every settlement, mortgage, or charge that had been created during the past sixty years. If that were so, there could hardly be any doubt that it was for the advantage of the landed interest, as well as of those who desired to acquire land, not to continue a system which required a fresh investigation of title upon every occasion that the land was dealt with. He had not intended to enter upon a discussion of the Bill, but the objections raised by the hon. and learned Member for Wallingford, however injurious, were really so small in comparison with the advantages to be derived from the Bill that he had risen to express a hope that the House would not be carried away by the high authority even of his hon. and learned Friend, and reject one of the greatest improvements in respect to land, and the mode of dealing with it, that had been proposed during the past two centuries. MR. DEASY said, the Bill designed 112 that there should be a Court invested with powers for investigating cases of title, without extravagant expense, and possessing the power of giving to the purchaser what he might call a Parliamentary title. He entirely approved of the principle of the Bill. They had already had practical experience of its working in Ireland for the last ten years, where landed property of no less value than £21,000,000 had been transferred by a court similarly constituted; and so satisfied were they with the working of that court that last Session the House passed a Bill converting what was merely a temporary tribunal into a permanent institution. His only objection to the present measure was, that it did not follow out in extenso the principle of the measure passed last year. In that Act power was given to the incumbrancers upon land and to owners of land thus incumbered to apply to the Court to order a sale, and the Court was authorized to make such order. Those powers had been safely granted, but they were accompanied by two conditions—first, that a sale was indispensable, and, next that the Court ordering the sale should receive and distribute the money it would bring. Those powers had worked exceedingly well in Ireland, and it was to be regretted that they were not comprised in the present Bill. The sale gave notoriety to the application, and thus afforded notice to all parties interested, while the distribution of the fund by the Court enabled it to give compensation to any person who might be injured by the sale, He had not heard any reason why the principle they had established in perpetuity in Ireland should not be extended to England. He thought that there would be very few applications for the interference of the Court under the Act: and the applications that were made would be chiefly those for enabling parties to carry out contracts for sale. He repeated he did not understand why his hon. and learned Friend had not given the new Court the power and the right to distribute the purchase money. However he gave his hon. and learned Friend credit for what he had done, and thought that the Bill contained the germs of a great improvement in the transfer of real property, while perhaps under the circumstances his hon. and learned Friend had acted wisely in not going too far at first.
THE SOLICITOR GENERAL
said, the hon. and learned Member for Wallingford (Mr. Malins) need not apologize for addressing the Committee upon a subject like 113 the present, upon which he was so high an authority. He (the Solicitor General) thought it moat desirable that not a single clause of the Bill should pass without discussion and careful consideration, but it was gratifying to find that, after bringing the weight of his great knowledge and experience to bear upon the Bill, his hon. and learned Friend could only make such minute criticisms, and suggest objections which were so easily answered. His hon. and learned Friend had made one mistake when he said that the Bill introduced a principle entirely new into our law, and that until the Irish Act of last year there had never been any judicial tribunal with power indefeasibly and at once to give a title to land for ever. The hon. and learned Gentleman must have forgotten the nature of the Incumbered Estates Act. No doubt, the primary object of that Act was to facilitate the sale of estates that were incumbered, but that which was incidental at first afterwards became a principle, and the Court was invested with power to pronounce at once and for ever whether a good title had been made. That principle was introduced ten years ago, had worked beneficially for that period, and could not be said now to be a novelty in legislation. His hon. and learned Friend said, "Look at the result of the Irish Bill of last year; by the Returns on the table it appears that only two applications up to the beginning of February had been made for an indefeasible title under that Act." But how did that happen? After the Act was passed the Court prescribed by it had to be constituted, and to frame rules for its guidance. Those rules were published at the beginning of November, and they had afterwards to be maturely considered by the professional gentlemen who would be required to act under them before they could be finally settled. So far, therefore, from feeling anything like disappointment that only two applications had been made to the Court up to the beginning of February, he (the Solicitor General) was surprised that in so short a space of time after its constitution even two cases had been prepared and brought under its jurisdiction. His hon. and learned Friend accused him of professing to found this measure upon the Report of the Commission, and at the same time of departing from it. When he (the Solicitor General) introduced the first measure, he stated that he founded it on the Report of the Commission, but, as he also proposed 114 what was at variance with the recommendations of the Commission, he proposed the Bill for obtaining indefeasible titles to land, and the Bill for the Registry of Landed Estates, separately, as he had specified in recommending these measures to the House; but he did not lead the House to believe that where he differed from the Report of the Commission he had founded his course of proceeding on anything but the Irish measure. His hon. and learned Friend further said, the Bill would not apply to copyhold estates. He admitted it would not, and for the reason that with respect to copyholds there was already a system in operation which worked well with regard to small properties, and under which a kind of registry of title was established. His hon. and learned Friend also said the Bill did not apply to settled estates. But there he was under a mistake, for wherever there was a settled estate, and the trustees had power to sell, the Bill would enable those trustees to come before the Court and establish the title, and then, having done that, they might, by virtue of their power of sale, dispose of any part of the estate and give to the purchaser an indefeasible title. Again, his hon. and learned Friend—and this was one of his main objections—said the Bill would not apply to leaseholds. He (the Solicitor General) agreed with him in that and that the Irish Act did. He had thought it safer, in making a new experiment of such a nature in this country, to commence with the species of property held in fee simple; but if this measure should pass the Legislature, and prove to be successful, he trusted that at some future day some other person would propose in that House to extend its principle to leaseholds, by which an indefeasible title would also be given to that description of property. His hon. and learned Friend said—and he agreed with him—that the Committee ought to guard against the risk to which absent parties might be exposed under a Bill the object of which was to afford facilities for establishing an indefeasible title. He (the Solicitor General) was aware that was a matter which required careful consideration, and it had been so considered in framing the measure. He must, however, point out a little discrepancy between two of the arguments used by his hon. and learned Friend. His hon. and learned Friend said he had had a conversation with a most eminent conveyancer, to whom he had put the question, "How 115 many titles have you been obliged to reject in cases of sale or mortgage on the ground of imperfection? "The conveyancer replied they were so few that he could scarcely recollect them. At all events, then, the Committee might take it on the authority of that eminent conveyancer that the instances in which a title was unsatisfactory in this country, where under the present system there were no means of publication as to what was being done with it, were so few that he could hardly name them. But under the present Bill there would be a better investigation of the title than by a conveyancer. The Court besides having the abstract of the deeds before it would be empowered to call for further information on oath wherever it might be necessary; the transaction would also be made the subject of advertisement, and a considerable space of time would be allowed to intervene before the title was finally declared to be good. The Court would have all those varied means and facilities for protecting the rights of absent parties; and there would be besides a provision in the Bill by which "a caution" might be placed on the books of the Court in behalf of any person who thought he had got so little interest in an estate that it might be overlooked or disregarded, requiring the Court to take notice of any application such a person might make with the view to the protection of his interests. With those safeguards, then, and having before them the experience furnished in Ireland during the last ten years, he thought the Committee might safely approach the consideration of this Bill undeterred by those apprehensions as to the rights of absent parties conjured up by his hon. and learned Friend. His hon. and learned Friend had cited a notable case in which, upon an attempted sale or transfer of land, an heir-at-law, who never dreamt he had any interest in the transaction, was asked to concur in the conveyance, whereupon, like a wise man, he inquired the reason why his consent should be necessary, and upon the matter being investigated in his interest the result was to show that he was the owner of the property. There was always something or other in the abstract of title produced on those occasions which showed that it was necessary to obtain the concurrence of some persons remotely or possibly interested in the land; and unless that concurrence was procured the our-chase was not completed. But did any one suppose this Landed Estates Court 116 would do less in cases of that kind to protect the interest of such persons than was now done in private by conveyancers and solicitors when dealing with titles? His hon. and learned Friend said it was vain ever to think of reducing land to the position of stock, and of transferring it with the same simple formalities, inasmuch as the two were essentially different. He (the Solicitor General) quite agreed there was an essential difference between land and stock, and between railway shares and land; but it was really mystifying and misleading the Committee to say that stock, unlike land, had no boundaries by which it could be defined and identified, and that £100 of one kind of stock was as good as £100 of another. The point for them to consider was—could not means be devised by which the title to a particular estate could be shown upon a register as easily as the title to a particular ship, or to £10,000 worth of stock, and by which, that having been done, a transfer might be as easily effected in one case as in the other? His hon. and learned Friend said an entry as to stock seemed plain enongh on the register, but there were often behind numerous transactions affecting it which the register did not discover. He agreed with the fact but not with the result. His hon. and learned Friend made a mistake in the difference of the effect of a caution and an inhibition. He thought a caution would give notice of the deed. Now this was not the case. No one seeing the caution would be obliged to look at the deed at all. All he would have to say to the parties proposing to make a title was, "Take this caution off." A man who was proprietor of land subject to those cautions would not have to render an abstract, but merely prove that these cautions ought to be taken off, and the rest would be matter of arrangement between the proprietors of the soil and the intended purchaser. From the moment the cautions were taken off the land would be transferred, and at very little or no expense. He could not help thinking that his hon. and learned Friend (Mr. Malins) had allowed himself to be moved by arguments of terror. He had said that the man who had a flaw in his title would stand in an unpleasant position before this Court, if the Court refused him what he asked, because his title would be blown upon, and it would be known that it was a bad title. But at present if a man wished to sell an estate without a good title it would be re- 117 jected by a good conveyancer. It was true this was a private tribunal, but he might also have it rejected by the Court of Chancery, the most public tribunal in the country, for he was liable to be made a party to a suit for specific performance, and if the title were bad it was thus known that the title was one that could not be accepted. The practical answer to the objection, however, was that every person who had a flaw in his title was, if he chose, aware of it. He might, if he pleased, have it examined by the Court, and the Court might cure the defect if the owner were willing to pay a little money. It would be in the power of every person to make good a defect in his title, and he might then have a declaration from the Court that the defect in his title was cured. The great majority of titles were without flaws, and was a man who had a perfectly good title to be refused a declaration by the Court to that effect because some other person had a title that was bad? His hon. and learned Friend (Mr. Malins) said that owners of land must spend their lives in reading notices and advertisements in order to guard against any attempted sale of their property; but he had no doubt the necessary notices would always be brought home to the persons affected. If, however, from any circumstance a person believed that by accident there might be a sale of land in which he had an interest without his seeing the notice, he would be enabled by the registry to enter a caution against the sale, and would thus insure for himself, almost without expense, a notice of the sale. His hon. and learned Friend the Member for Newcastle (Mr. Headlam) had asked what he intended to do with property containing minerals, the fact being that in the northern district the title to the surface was in one man, and that to the minerals in another. The first duty of the Court would be to establish rules relative to the title under ground as well as above. If the title to the minerals were not made out, the Court would not give a certificate carrying minerals. The hon. Member for Sheffield (Mr. Hadfield) asked how it was proposed to deal with property in the counties of Lancashire and Yorkshire, much of which was liable to a small fee-farm rent, in fact a small annual sum payable by the purchaser to the vendor. Any person owning property of this description who come for a declaration of title would have to make a declaration that he was not the actual proprietor, but that the estate was 118 subject to a fee-farm rent. The owner would thus get a security better than he would otherwise obtain, for it would be stated on the register that a fee-farm rent was payable on this land. The hon. Member (Mr. Hadfield) also stated that the members of the legal profession engaged in the conveyance of land were opposed to the Bill. He must differ with the hon. Gentleman on this point. He had received many communications from solicitors in different parts of the country very largely engaged in practice, and although one section of the profession had doubts about the Bill, and had published a paper which had no doubt found its way into the hands of hon. Members, yet a great number of solicitors of the greatest practice in conveyancing had expressed their approval of the measure. Upon this subject he might state that a deputation of the Incorporated Law Society, containing among them the most eminent solicitors in England, had waited upon him in regard to some of the clauses of the Bill. They stated, and they authorized him to repeat the statement in his place in the House of Commons, that their counsel had considered the Bill, and approved the general principles of the Bill. They also desired this to be known, that if the House of Commons thought that the policy of this Bill ought to be approved, they did not desire that any effect which the measure might have upon their professional emoluments should stand in the way of its adoption. He thought that this statement was in the highest degree creditable to those honourable and upright men. He would now ask permission to say a word relative to the payment of solicitors in a measure of this kind. Under the present system of real property law the only circumstance that had rendered practicable the large amount of transfer of land that went on was the very efficient, honourable, upright manner in which this branch of the law had been conducted, especially by the country solicitors. The integrity of these learned persons, and the reliance justly placed upon their conduct, had relieved the transfer of land from the difficulties which, great as they now were, would be tenfold if the business had fallen info bands less honourable and efficient than the solicitors who had the management of this branch of law. The Legislature had adopted the worst possible plan for the remuneration of solicitors, because it had afforded a motive—if they could be influenced by such, a motive—to make the 119 proceedings as cumbrous, as intricate, and as difficult as possible, by providing that the solicitors should be paid by the length and cumbrousness of their work. He should not he surprised if some objection were made by solicitors at an alteration which might affect their legitimate profits. They belonged to a class the maintenance of which was desirable and almost necessary for transacting the business of the country, and he should be sorry to think that a measure, however useful in other respects to the public, should be injurious to them. He believed that the increased business which would accrue if this Bill passed would fully 'compensate the solicitors for the want of that cumbrousness and length which might hitherto have made this business remunerative to them. More than this, however, he had provided that in the registry of land the business done by solicitors should be paid in future upon a scale of remuneration to be fixed by a proper authority on a principle more sound and safe than that hitherto adopted. In place of being paid by length, it might be desirable to provide that the remuneration should be ad valorem. This would be better both for the solicitor and the client, and it would get rid of that most unwise an-d injurious plan of paying for the conveyance of land which he had described. His hon. and learned Friend the Member for Cork (Mr. Serjeant Deasy) had expressed a wish that the Bill had been carried somewhat further, and that it had contained a power for the compulsory sale of land. He doubted whether such a clause would be accepted in this country. Under the improved practice of the Court of Chancery there was not wanted a speedy means of settling incumbered estates, as had been the case in Ireland. With reference to another observation of the hon. and learned Member for Cork, he had to state, that the Court to be established under this Bill would not pronounce any title to be indefeasible until a certain number of mouths should have elapsed, during which, any person who had a claim to make to the property in question, might make it. he had now gone through all the objections to the Bill. But there remained to be answered a prophecy rather than an argument, and that of course was a difficult matter to answer. The hon. and learned Member for Wallingford (Mr. Malins) and the hon. Member for Sheffield (Mr. Had-field) had prophesied that people would not avail themselves of this measure, that very few persons would resort to the sys 120 tern to be established by it. If the question were whether his prophecy was to be put against that of his hon. and learned Friend's, then he should despair of succeeding in convincing the House that he was right and that they were wrong. Any one who had had slight experience in the world must know that many projects which appeared in the first instance to be hopeless and even objectionable, turned out in practice to be some of the most valuable laws which we possessed; and that, on the other hand, many undertakings, which at first looked exceedingly promising, turned out, when they came to be worked, to fall far short of the expectations formed of them. They could not in any way provide against such occurrence?. But they could do this—they could find out what were the evils which they desired to remedy. They could consider and reflect upon what had been done in other places and at other times to remedy similar evils. They could carefully consider the objections which were raised to the project, and weigh those objections for the purpose of ascertaining whether they ought to be regarded as of so grave a nature as to defeat the project altogether, or whether they were such objections as could be met by a modification of the project. When they had done that he admitted to his hon. and learned Friend that—fallible and short-sighted as they were—they would not have secured success, but they would at all events have the satisfaction of knowing this,—that they were treading in that path which, upon former occasions, had Jed to most beneficial reforms.
§ LORD JOHN RUSSELL
said, he wished to say a few words in reference to the latter part of the hon. and learned Gentleman's speech. He had expected that the hon. and learned Solicitor General would have answered what appeared to him to have resulted very much from the observations made on both sides of the question. The right hon. Gentleman the Member for the University of Cambridge (Mr. Walpole) the hon. and learned Member for Walling-ford (Mr. Malins) and others had stated this to be the state of things with regard to the title to landed property; that solicitors and conveyancers who were most conversant with this species of business were of opinion that in almost every case the titles that they examined were good, and it very seldom happened that a title which had been decided by a conveyancer to be a good title was afterwards called in 121 question with success. But then the right hon. Gentleman went on to make an inference from that state of things which he (Lord John Russell) certainly should not have expected, because the right hon. Gentleman said that, if that was the fact, persons who were in possession of estates, or who wished to sell estates, would naturally and inevitably require a title from this new Court. Now, it appeared to him that the consequence would be very much the reverse. If the chances of a bad title were almost inappreciable, a person who had an estate and wished to sell it, would naturally say, "I shall obtain very little more security by going into this court." The intending purchaser also of the estate would be most probably told by the seller, "If you insist upon going into this court, you must do so at your own expense." He thought the consequence would be that instead of everybody going into this court the general case would be that persons would not have recourse to it at all, and would continue to deal with their titles as they had hitherto. If, then, that were the case it surely became of some importance for that House to deliberate well whether they should impose upon the country the expense of maintaining this now court, especially after the admission of the hon. and learned Solicitor General that the whole of the future with reference to this project was uncertain. He found by the second part of the Bill that it would establish a new court consisting of two Judges—one at £3000 a year and the other at £2,500 a year—that there would be clerks at £1,000 a year, and some secretaries with £300 a year. It might happen that there would not be business enough to occupy the Court. Besides, this Bill would add another evil, and that one of the greatest, to the existing evils connected with the administration of our laws. He referred to the variety and conflict of jurisdictions. They had heard much of late of attempts to remedy that state of things; and with that view extended powers had been given to the Court of Chancery and to the superior Courts of common law. But here they seemed to be proceeding in another direction, and to be establishing a new court, which should have its own rules and to which persons would have to resort instead of to the ordinary Courts of law. The hon. and learned Solicitor General would perhaps explain on some future occasion why the court should be instituted. He did not say that this Court might not 122 have a great deal of business to do, nor that if the powers to be given by it were confided to the Judges of some of the existing courts, and it should be found in three or four years that the business created by it was so great that it was absolutely necessary to establish a new court, the Attorney or Solicitor General might not fairly come to Parliament to ask its sanction for the establishment of such a court. The Committee should recollect that pensions would have to be given to the Judges and officers of this court if it should be found advisable to put an end to it, owing to a want of business.
THE SOLICITOR GENERAL
said, his apology for not answering the question of the noble Lord was that he really could not have anticipated it. He had endeavoured in the few observatious he had made simply to answer the objections made to the Bill and it did not occur to him to anticipate what might be the view taken of the Bill by the noble Lord. The noble Lord said, in the first place, it appeared that in this country it was a rare thing for a title which had once passed through a conveyancer's hands to be afterwards impeached, and that the result of that would probably be that, even if you established a Court with power to investigate titles, few persons would resort to it. But he was sure the noble Lord had not examined what were the irksomeness and inconveniences of the present system with regard to titles to land. He (the Solicitor General), of course, did not mean to deny that at a certain expense and after a certain delay, you could sell and purchase landed property. That was merely a question of a certain number of months and a certain number of pounds of expense. But the great evil was that after all that was undergone you had not advanced one step if you wished to have further dealings with your estate. If you wanted to borrow money on your title the next month, if you wanted to sell again, if you had trustees and they had to sell for you the same delay and the same expense must be gone over again, and that would have to be repeated as often as the estate happened to be transferred. Nay, more; several estates were sold in lots for building purposes; if you sold your estate in 50 or 100 lots, every purchaser was entitled to an abstract of your title. The expense was frequently so considerable that persons were deterred from selling their estates in lots. Whatever was thus paid was deducted from the value of the estate, and it mattered 123 little who paid it, whether the purchaser or the seller. That was the reason that titles were generally good, and that upon the payment of a certain sum of money in the shape of law fees the intending purchaser was satisfied with the title. The difficulty had been felt in Ireland to such an extent that it was proved that many persons in that country had placed fictitious burdens upon their estates, to enable them to go into the Incumbered Estates Court and to get a Parliamentary title. Again, the noble Lord thought it was not necessary, at all events in the first instance, to establish a new court for the purpose of carrying the principle of this measure into effect. On introducing the measure he (the Solicitor General) had ventured to explain the reasons which led the Government to propose the establishment of a new Court, and which was simply this,—that the business to be done by this Court was wholly different from the business of any Court in this country. The Judges of the Court of Chancery were certainly too much occupied from morning till night in deciding cases between plaintiffs and defendants to undertake the business that would arise under this Bill. A Judge of the Court of Chancery could not shut himself in his room to read an abstract, which was what the Judges of this new Court would have to do if Parliament passed the Bill. In Ireland it had been proposed to give the power of examining the titles to land to the Court of Chancery; the question was investigated by a Committee of the House, which after hearing the evidence, decided unanimously, or nearly so, that this business could not be imposed on the Chancery Court. Therefore, they must either say there should be no Court at all or a new Court must be created. Though it would have two Judges, yet they would not be required to perform ordinary judicial duties, hearing arguments and evidence and deciding upon them as between the litigant parties. They would be Judges investigating titles, like conveyancers. Judicial conveyancers would be a more correct description of them,—examining the titles they were about to pronounce indefeasible; seeing that they were, in the language of conveyancing, "good titles." The measure was, to a certain extent, an experiment, and it could only be tried by means of a Court of this description. The salaries of the Judges were not disproportionately large, having regard to the class of men qualified to discharge the duties. The 124 amount must be such as would induce good conveyancers to relinquish their practice to take the office.
§ SIR ERSKINE PERRY
said, he had sat on the Committee to which the hon. and learned Solicitor General had referred, and he could therefore explain the reason why it was thought inexpedient to transfer the jurisdiction of the Irish Incumbered Estates Court to the Chancery Court. That conclusion was arrived at after most ample discussion, and in opposition to the views both of the late, and of the present Attorney General for Ireland. It was clearly perceived that the safe operation of the Court depended entirely on the mode and accuracy with which the investigation of titles was conducted; now to perform such duties well required the special knowledge of a conveyancer, which constituted a science in itself, and one with which the most eminent Equity Judges were frequently not conversant. The Master of the Rolls, one of the highest authorities upon such a subject, had admitted that even he should feel himself incompetent to discharge those duties. That being so, if the transfer had been made to the Court of Chancery, the Judges would have been compelled to delegate the performance of these duties to conveyancers, or, in other words, to irresponsible individuals. As a practical reformer he highly approved of the proposed Bill as a whole; not only for its immediate objects, but because it provided for a procedure of an admirable description—one that he would call philosophical. All law reforms during this century, and since the period when Bentham first began to write, had mainly for object the simplication of law procedure, for the purpose of enabling the suitor to bring before the Judge the subject of controversy in the simplest, the speediest, and most economical form consistent with justice. But the Incumbered Estates Court Judges in Ireland had framed their rules of procedure entirely on such a system, and, in point of fact, they formed a model for any other Court. And he trusted that with the transference of Judge Hargreave to the new Court to be established in England, the same simple system would be established here. As to the Court not finding sufficient business to employ its time for the first three or four years, that might be easily provided for by commencing with appointment of one Judge only. But there was one defect in the Bill. It conferred great benefits 125 on the landed interest, but did not hold out sufficient public advantages. Landed proprietors would undoubtedly be able to transfer their estates by a species of state conveyancing, and to facilitate the speedy transfer of land he did not at all grudge the boon to the landed interest. But why should not creditors who had lent their money on land, and who had obtained the power to sell, be enabled to apply to the Court for a judicial title, so as to enable them to realize on their securities the highest marketable price? If this were not provided for it would seem fair that the landed interest, who alone received benefits, should alone pay the expenses of the Court, and that they should not be made a charge upon the public.
§ MR. MALINS
said, the right hon. Member for Cambridge University (Mr. Walpole) had characterized his argument against the establishment of the proposed Court as "weak." If there were any weakness apparent in it, that weakness was fully compensated by the strong words used in the Report of the Committee that sat upon this subject in 1856, of which Committee the rht hon. Member was himself Chairman. That Report stated that the CommitteeHad come to a conclusion adverse to the creation of a tribunal with the power of deciding on titles to land. The object might be good where estates were much embarrassed, but the same principle was hardly applicable in another state of society, in which there was not the same necessity of a change of ownership.It objected, also, to the want of proper provision for the protection of beneficial interests and trusts, which would not be protected against wrongful acts by registered owners. The right hon. Gentleman said, the principle of the Court was as old as the system of fine and nonclaim; but why go back to a system which had been abolished in the time of William IV., because of its injustice? In the event of such a Court being established, however, he agreed with the last speaker as to the duties of those who would necessarily preside, and he approved of the amended title, "judicial conveyancers," given to them by the hon. and learned Solicitor General. He, however, disapproved now, as he had always done, of the extensive powers proposed to be given to those judicial conveyancers. Let them report that a good title existed; let that report, however, not preclude any person who could prove the conveyancer wrong from appealing to a superior jurisdiction, and let the Court guarantee that title to a 126 purchaser. But let not the conveyancer, as it was proposed he should do, decide in favour of the present against the absent, for it would be impossible to fathom the noxious results of such a system. With respect to the theory advanced by the right hon. Member for Cambridge University, as to the probable proceedings of colonists, they would, no doubt, become as desirous as their forefathers of providing for their posterity. Settlements would, as a matter of course, be made, and all the peculiarities of our legal system would, as a natural consequence, result; the theory of the right hon. Member, therefore, was not tenable in the slightest degree. The Irish Incumbered Estates Court had been much eulogised, and it had been said that that Court had committed no errors. Errors of this kind, however, did not disclose themselves at once, and that Court had been established only seven years. What might the next seven bring forth? Seven years was a very short time by which to test the utility of an establishment which had to deal with such a question as the title to land. He believed it impossible that the two or three Irish Commissioners presiding over that Court could personally, without the assistance of conveyancers, have investigated the number of titles that had passed through their hands. They were not to assume, because many mistakes had not yet been discovered in the working of the system in Ireland, that they ought to decide against persons in their absence, or against the rights of the unborn and unknown. He could not acquiesce in the practical utility of the proposed system of "cautions" or "inhibitions" which the Solicitor General had promulgated. As illustrations of the imperfections of the system, he might suggest the following instances:—A B registers an estate on the 1st of Janury, 1860, as owner; he could then sell that estate; a month afterwards, C D puts a caution or inhibition upon the register. "Then," said the Solicitor General, "you must get C D to withdraw it," But if C D put it there, he would not withdraw it merely upon being asked to do so; he put it there because he had some interest in the land, and would not remove it unless his claim was satisfied. [SOLICITOR GENERAL: Hear, hear!] That claim would have to be investigated. Other cautions might follow, rendering necessary further investigation, and though you might commence with a simple title, the multiplicity of cautions that might follow, would render the system im- 127 practicable. Again, every man before he took so important a step as the purchase of an estate, consulted his legal adviser, and certainly, before he moved the machinery of such a Court as that proposed, he would equally consult his solicitor to advise him upon the title of the estate—a title to which he proposed to obtain from the Court—and so he would have to go through the same course before he went to the Court that the Court would have to go through afterwards. On the whole, he felt convinced the measure would not answer the expectations of his hon. and learned Friend the Solicitor General (Sir H. Cairns). He would, however, conclude by withdrawing his Motion.
MR. CARD WELL
said, that if the ancient strongholds of English law in regard to conveyancing could be sustained, he was sure that they would be by the persevering zeal of the hon. and learned Member for Wallingford. One would imagine from the observations of the hon. and learned Member that settlements and family dispositions were wholly unknown in the case of stock in the funds and personal property; but so far was that from being the fact, that all those provisions for a man's wife and family, the importance of which the hon. and learned Gentleman urged with so much eloquence, were: made every day by means of funded property, unincumbered by any of those difficulties which had rendered the law of landed property in this country a byword and a reproach. The transfer of funded property was effected with ease and the question was whether the same principles could not be applied to land. It was said, indeed, that there was a difference in the nature of the property, but a further question then arose, whether that was a sufficient answer. They hid the advantage of experience on the subject. For ten years there had been in operation a Court which had dealt with landed property with signal success upon the same principle which applied to funded property, and although the hon. and learned Gentleman said that it had been in operation for too short a period to be conclusive in its results, it had, at all events, led to more than £20,000,000 being invested in the purchase of land, a channel into which money could not formerly find its way, owing to the complexity of the details, and the general difficulty of the subject. The establishment of that Court had done more almost than any Act of Parliament which had been passed in 128 our time for the regeneration of society in Ireland; and that was his answer, founded upon practical experience, to the technical difficulties raised by the hon. and learned. Gentleman. Then, with respect to mortgages and those charges which were supposed to attach only to land, and which were to be the subject of caveat; it was now about five years since a system had been adopted with respect to ships, involving remarkable minuteness, owing to charges of this kind—and property in ships could now be conveyed, ships could be mortgaged, and even migratory powers of mortgaging could be given. This also had been long enough in practice to afford evidence of its beneficial working, and he contended, therefore, that both reason and experience vindicated the change which was now proposed. It had been asked what necessity there was for resorting to a Court of Record when a man could always clear his title. The answer was obvious. When a man had once gone to the expense and labour of clearing his title he did not desire to go to that expense again for another cause. If a person had a large estate, and was desirous of selling it in small portions, it might be essential fur carrying on that operation, where the title was once cleared, to have some public record of the fact, because the expense of doing it in each case might be so great as to be prohibitory. Again, there was a growing and very natural desire among all persons in this country who by industry and economy amassed a little money, to invest their savings in actual landed property, and land could not be set free for the purpose of those small investments until some means were established by which, like funded and other property, it might pass easily from hand to hand. The right hon. and learned Gentleman the Member for Cambridge University had given an illustration from the Colonies, upon which the hon. and learned Member for Wallingford remarked, "But suppose the colonists say, 'We will have settlements and arrangements like those of the mother country, and therefore we will return to the old system of conveyancing.'" He (Mr. Cardwell) had no doubt that they would have settlements in every British colony, but he believed that they would be made in the same way with regard to land as in the case of stock in the funds. That colony would certainly be a curiosity in history which should carry its loyalty and love of the institutions of the mother country so far as not to be satisfied without adopt- 129 ing all the perplexities and embarrassments which were associated with landed property in this country. He (Mr. Cardwell) shared in the universal applause which had been bestowed upon the hon. and learned Solicitor General for this measure, and he cordially congratulated him on having had the privilege of introducing to the House of Commons what he believed would be one of the greatest and most beneficial changes ever made in the law of this country.
§ Clauses 1 to 3 agreed to.
§ In reply to Mr. HADFIELD,
THE SOLICITOR GENERAL
said, he did not propose to proceed any further that evening, either with that Bill or the next on the paper, than the first Clause that involved the principle of the measure.
§ House resumed.
§ Committee report progress,