HC Deb 25 May 1865 vol 179 cc841-55

Order for Second Reading read.

THE ATTORNEY GENERAL moved the second reading of this Bill. He said it had passed through the House of Lords with very general unanimity, receiving the support particularly of noble Lords connected with Ireland. Its object was to complete the benefits derived in Ireland from the system of Parliamentary titles provided by the legislation of late years. Under the Incumbered Estates Act property to an enormous value—not less than £23,000,000—had been cleared and sent into the market with an unimpeachable Parliamentary title. Since the passing of that Act the Legislature had given to the Landed Estates Court in Ireland power to make a declaration of title, which should be a clear Parliamentary title, to any owner of land in fee simple, and the beneficial effects of that legislation could hardly be overrated. That legislation was, however, imperfect, since there was no provision, as pointed out by the Commission of 1857, for perpetuating and continuing as to future transactions the Parliamentary title once created, and for preventing the land from relapsing into its original condition of encumbrance. Thus would arise, again, the old system, the expense of investigation into the title, and difficulties in dealing with the property in the market, accompanied by gain to the solicitors and loss to the public. When Lord Derby was last in office the hon. and learned Member for Belfast (Sir Hugh Cairns), whose entire cordial, and unqualified approbation the present measure had, introduced into that House a Bill to give effect in England to the recommendations of the Commission of 1857. That particular measure was not carried into effect, but in 1862 Acts were passed by Parliament for the purpose of simplifying the transfer of land in England, of enabling a Parliamentary title to be acquired by means of the Registration Office then established, and of perpetuating it by keeping a subsequent record of all after transactions. The scheme was not compulsory, but permissive, and there was a drawback, which the good sense of the country was overcoming, against its efficient operation, arising out of the indisposition of solicitors and attorneys throughout the country to co-operate in carrying out a change of law which interfered with j an important branch of business they had been in the habit of conducting with great; ability, and with some profit. Under these circumstances prophecies were indulged in that the scheme would have no effect, and that nobody would take advantage of it. Consequently, it was not all; at once that the public began to discover that they really had the means of acquiring clear titles to their estates, and of keeping their titles in a marketable condition; but now the public were becoming acquainted with the benefits of the measure, for whereas from October, 1862, to March, 1864, there were only sixty-five applications for registration, comprising about 5,000 acres of land; from March, 1864, to April, 1865, there had been 214 applications; and it might be concluded that that rate of increase would be progressive. At rather an earlier period the same system was tried in South Australia, and here he must not omit to mention the name of Mr. Torrens, on account of the zeal and ability with which he had promoted the cause of public improvement on this subject. That Gentleman was the means of introducing the system into South Australia, where great advantages had resulted from it. lie held in his hand a Return of the number of applications made to the Land Registry Office in Australia, showing that not only was there a large number of original registries of title, but a large and continually increasing number of transfers, and subsequent dealings on the record. In 1864 an association, with the Duke of Leinster at its head, was formed in Dublin for the purpose of obtaining this necessary supplement to the measure which had been in successful operation in Ireland; and it was partly by the labours of that association that the Government had been enabled to prepare the present Bill. He would now explain exactly what were the provisions of the Bill. The House was aware that there existed in Ireland a registry of deeds, which was quite a different thing from a registry of title, and in no degree cleared the title. It was an advantage, no doubt, to have a register of deeds, and be able to ascertain what deeds there were affecting the property, but the expense of making out the title was no less under that system than if there were no such registry. Nevertheless, as the present Bill was only permissive, those who liked the other system might still use it, have encumbered or uncertain titles, and be unable to deal with their property without running up a very heavy bill with their solicitors. They might still enjoy that luxury if they chose, but there was no reason that they should have the power to force their ta3te on others It was provided by the present Bill that in all cases in which a Parliamentary title was created, that title, if the parties so wished, would at once be placed on the record, together with all subsequent dealings, transfers, &c. The record itself would be the only thing the parties would have to look to, and would be conclusive in all dealings with the property. Anybody who wished to sell or mortgage his property would have nothing to do but to go to the office, and by a very short statutory form the transfer or mortgage would be effected. But if it were desirable to have a deed executed in the country, that could be done and the original deed would be deposited in the office, and duplicates furnished to the parties interested. Then there would be given a certificate, which would be a marketable instrument, and a special certificate would be given when desired, which would prevent all entries on the record for fourteen days. The Bill also proposed to enlarge in one or two important respects the operation of the Landed Estates Court At present that Court only had power to, make a declaration of title in the case of estates in fee simple, but that power was now proposed to be extended to all estates. In Ireland many leases were virtually perpetual, and there was to be a power for having separate records of these estates on the register. He had only to add that all that was to be done without throwing any new expense on the country. Of course there would be the necessary fees upon the business done, and these would be relied upon to meet any outlay that might be created. There were some provisions for recording devises by will, and the succession of heirs in case of intestacy by certain steps to be taken for establishing the title on these different occasions. These powers might safely be conferred on the Landed Estates Court, judging from their experience of its exercise of similar functions; but appeals would be given from its decisions, first to the Court of Chancery in Ireland, and then, if desired, to the House of Lords. It was, he confessed, with some surprise that he heard there was to be opposition from any quarter to the measure. He believed it would be acceptable to Gentlemen on both sides who were best acquainted with Ireland. But a paper had that day been put into his hands, from which it appeared that the very respectable body of men whose prophecies of the failure of the English Land Transfer Act were now in course of disappointment, also conjured up all kinds of possible evils from the adoption of the present measure. They thought a man might possibly get hold of somebody else's certificate and go to the register and forgo his name. That might happen now in regard to ships, but it was done very rarely indeed; and the safeguards provided were such as to render needless any alarms of that description. Those learned Gentlemen could hardly have read the Bill with the candour and care which might have been I expected from them; but their objections were objections to details, which could properly be considered in Committee. All that the House was then asked to do was to agree to the second reading, and to affirm the principle that it was desirable to give those who wished to take advantage of it the opportunity of continuing upon the record a Parliamentary title after it had once been created.

Motion made, and Question proposed, "That the Bill be now read a second time."—(Mr. Attorney General.)


said, he was surprised that the hon. and learned Gentle- man should expect a Bill of such importance not to meet with some discussion. It was a mistake to say it had received the approval of all the learned authorities in another place. One of the most learned Members of the other House (Lord St. Leonards) who had been Lord Chancellor twice in Ireland and once in England, and had done much to simplify the law, had pronounced a very different opinion of the measure from that of the hon. and learned Gentleman. Again, it was not quite worthy of the hon. and learned Gentleman to speak of the body of solicitors in the terms he had done; and he ought, moreover, to have recollected that the gentleman who had signed the paper to which he had referred had been appointed by the Government on the Commission which recommended all the reforms in the Court of Chancery, of which the hon. and learned Gentleman was such an enthusiastic advocate. Although that extraordinary measure came down to them from the other House, they were entitled to exercise their own judgments upon it, and to ask for the reasons on which it was founded. It related solely to landed property in Ireland, to which a Parliamentary title had been obtained, leaving all other descriptions of land untouched. The Bill, it appeared, had been born in Australia; so that from that happy colony they were to derive not only reforms in their Constitution, but in the law of real property. The doctrine applicable to a country where the settlers cleared away the trees and the natives, and then laid out the land for each other according to their own plans, was to be introduced into a country where the laws of real property were, fortunately or unfortunately, rather complicated, and where the main elements of that complication were to be left wholly untouched. Even in Australia, when a measure like the present was passed, an indemnity fund was created to compensate the recorded owners, who might in the simplest way possible to deprived of their rightful estates. One objection to the Bill was that it did not provide that the Consolidated Fund should make good all the losses which must necessarily arise from it to the owners of property in Ireland. If such a provision was essential in Australia, as Mr. Torrens informed them, how could it well be dispensed with in Ireland? He really thought it desirable that the preparation and conduct of measures like that should be in the hands of some one acquainted with the land and the law of Ireland; and he trusted that whenever a new Government was created somebody connected with the Parliamentary representation of that country might be permitted to meddle with its business. There were 12,000 proprietors in Ireland who had clear Parliamentary titles registered in the office for registering deeds affecting land; but surely not one of those persons would be so foolish as to go back to the same court to register the record of his title again? When, therefore, it was boasted that that particular Bill would be of great service to the country, it was clear that that could only relate, if it related to anybody at all, to purchasers hereafter. As to the question of search, he would say that it would only take about a minute a year to search the book for the title. As to a search extending over five or ten years, why it would be a mere nothing. There was some time ago a description of title in Ireland called a holding under a lease of lives, renewable for ever. That being found a very inconvenient kind of title, a law was lately passed which enabled the holders of such property to turn them into perpetuities by paying the landlords certain fines or fees. Now, about one-sixth of the land of Ireland was of that kind, the proprietors of which could make out their title with the greatest ease and simplicity. There was another class of property in Ireland, belonging originally to the Church. The purchaser of Church land obtained his title from the Ecclesiastical Commissioners, who were empowered by law to grant leases. Two-thirds of this property had been purchased out and out, and the owners had obtained a good Parliamentary title. Now the promoters of the present Bill said that it would confer a great service on the country. He was at a loss to understand how any advantage could be derived from it. In his opinion it would only operate in regard to the future purchasers. It should be observed that the proceedings of the Land Transfer Court were slow, cautious, and expensive, and being so, the purchaser was sure of being well protected as regarded the title. The measure before the House, on the contrary, deprived the real owner or purchaser of every such protection, inasmuch as it proposed to effect the sale and conveyance of estates in a hop, step, and a jump manner, and subjected the officials connected with the court to no pain or penalty for neglect, carelessness, or indifference in the discharge of their duties, even though by such faults the real owner of a property might find himself suddenly deprived of it. Now, under the existing law, the registrar of the Landed Estates Court was made peculiarly liable if he neglected to give the proper legal document, or had done anything affecting the interests connected with a particular property. Able and learned as Lord Westbury undoubtedly was, he had framed clauses in that Bill which he (Mr. Whiteside) thought that House would never sanction. The 34th clause enacted that— On the death of the recorded owner of any real estate, any person claiming as devisee, may apply to the Judge for a fiat directing the officer to record the applicant as owner in the place of the deceased person. A person might go with a piece of paper to the Judge and say, "Record me as devisee." If the Judge chose to do so, the person recorded as devisee might sell the estate next day, and there was no remedy against the purchaser. The will under which the devisee claimed might have been fraudulently obtained, or another will turned up; but the case had been summarily decided; the estate was gone for ever. Unless they thought that the ownership of an estate ought to be disposed of in a more summary manner than a County Court Judge would decide a huxter's bill for 40s. they would never adopt that clause. But the Judge might withhold his fiat until the applicant shall have obtained an order or decision or certificate from Her Majesty's Court of Probate in his favour, and shall have lodged in the office the probate or a true copy of the will or codicil under which he claims, &c Those who framed this clause could have no accurate idea of the law that related to the Probate Court in Ireland. No power was given to the Probate Court to pronounce any opinion on the construction of the will. To refer the matter to him who had no authority to deal with it was an absurdity. He was lately engaged in a case where three wills were produced. Well, the devisee appeared, produced the will, and the estate was gone. The next clause enacted— On the death of the recorded owner of real estate any person claiming as heir-at-law, may apply to the Judge for a fiat directing the officer to record the applicant. If there should be any doubt, dispute, or litigation touching the ownership of the estate of a deceased owner, the Court may appoint a person to be recorded in his place, as the representative of such estate, &c It was one of the most critical things to find out who was heir-at-law. Whether there ought not to be a limitation of the time—five years according to some, or ten years according to others—within which, if a will were not produced, it should be concluded that none existed, he would not say; but this question was to be disposed of in no time at all. Once the person was recorded he could sell the estate. This was a very alarming Bill. It could not be acted upon. It was full of mischief to all the interests of society. In their anxiety to be rapid they would become unjust. Under the existing law the registry of deeds was very accurately performed in Ireland. It was of the greatest advantage in that country. The fact and truth was this, that were it not for the Registry of Deed Office, neither the Incumbered Estates Court nor the Landed Estates Court would be of any use. Under the general registry of title-deeds in Ireland everything was open to inspection in the office. The present Bill, however, provided that once a title was recorded nobody was empowered to inspect the record except the owner or his solicitor. It was a mistake to say that the register of the Landed Estates Court in. Ireland gave no information, for there were at present 12,000 transfers registered in it, and the owners could do no act with reference to their estates except through that Court. From the moment a man registered his estate every lease, mortgage, and charge upon it must be executed through the medium of a public court at a large expense, and he never could free himself from his fetters unless every person having a charge upon his estate gave a formal consent to his taking it off the register. There were at present three modes of dealing with estates existing in Ireland—one for the registration of deeds, another for the recording of titles, and a third for the registration of judgments; and he wished to ask the learned Attorney General if he wished by the 42nd clause of the Bill for the House to overthrow Sir John Romilly's Act for the Registration of Judgments. His complaint was that instead of looking to the whole state of the law in Ireland, and considering how they might have amended the Registration of Deeds Office and enlarged its operation, this Bill had been introduced for the purpose of establishing an antagonistic system of registration of deeds and judgments that must plunge the country into great misery and confusion. He should have no objection to one system of registration being made compulsory. He objected to the time it took at present to investigate a registered title, as when a man required money he generally wanted it immediately. He thought the Bill did not afford sufficient security against fraud, as any man getting hold of the judgment certificate might manage to get himself recorded owner, in which case, even if the mistake were found out within an hour, he could sell the estate, and the real owner could obtain no redress, and no responsibility would rest upon any official. All those evils were to be created for the purpose of facilitating the transfer of land. In his opinion, if this Bill passed, matters would only be made more complicated than before. The machinery of the Bill was very complicated, and by it every man who had a charge on an estate, and if it was mortgaged to the extent of £5,000 or £10,000, every owner of a mortgage might split the amount up and get a certificate for every £1,000, and thereby bring down five or ten creditors, as the case might be, on the unfortunate owner of the estate, instead of one. Powers were to be given in this Bill which had never been known before to exist in that country. The record was to be made in the most complicated manner, and the very reverse of that very convenient and simple manner described by the learned Attorney General. The Bill ought to be submitted to a Select Committee. The learned Attorney General had said that the Bill had been thoroughly examined in another place; but he (Mr. Whiteside) had been informed that it was not referred to a Select Committee of the House of Lords. What was stated by Lord St. Leonards in the other House was deserving of every respect. Lord St. Leonards had said—?


said, the right hon. and learned Gentleman was out of order in referring to what was said in the other House.


said, that he only wished to refer to what that noble Lord had said to show that the Attorney General was in error when he said the Bill had received the assent of all parties in the other House. He had been informed that it was not the case. He was of opinion that the Bill was open to very serious objections, and with all respect for Lord Westbury be considered that it was the most complicated, difficult, novel, and singular measure ever introduced into that House, or that he had ever heard of be- fore. It was, however, possible to make an alteration in the present law that would be beneficial to all parties. If it were really desired to facilitate the transfer of land, let them make the registration of wills compulsory, instead of permissive, and let them permit a man to renew his Parliamentary title every five or six years at a moderate expense. Having assisted in carrying the Landed Estates Act through the House of Commons he would be happy to improve it; but he considered that the novelties and the curiosities of the present Bill required that it should be fully and fairly considered before power so enormous as that which it conferred should be conferred on gentlemen appointed for other duties, and who had already quite enough to occupy their time. He trusted that the Attorney General would not oppose the proposition to refer the Bill to a Select Committee.


said, a notion appeared to exist that in recent legislation there had been a tendency to introduce a principle both novel and dangerous. It seemed to be thought that there was a kind of magic in registration. The fact was, that registration of titles and deeds was not new. It had been known to Europe for more than 1,000 years, and had existed in the time of Justinian; but the principle had always been that the title when registered was the same as it had been before registration, and that registration only fixed the priority of the instrument. Under the first Empire in France a case came under the consideration of the Court of Cassation, presided over by the greatest lawyer of the time, who had a chief part in drawing up the Code Napoleon, and they decided that no defect of registration would affect the title, because the registration was merely to record not to determine the title. The Estates Court in Ireland had been rendered necessary by a very extraordinary state of things, and the Act creating it was a revolutionary measure, called for by the vicious state of the law of property. It was an anomalous institution. The hon. and learned Member for Belfast (Sir Hugh Cairns) once proposed to institute an Estates Court for England. He (Sir George Bowyer) thought the proposal both dangerous and mischievous; he did not think the circumstances of England rendered such an Act necessary. Admit in England the necessity of a court for the transfer of landed property, and you would require a court for the transfer of a horse or a pig. An estate court must only be resorted to under exceptional circumstances. To make it general would be to poison jurisprudence, and produce consequences which, if ever our laws were codified, there would ever be reason to lament. He had no objection to the Bill as far as it went to record titles made under the Landed Estates Court, but he generally concurred in the observations of the right hon. and learned Gentleman the Member for Dublin University (Mr. Whiteside), whose warnings he hoped would be listened to by the Attorney General, for if it were once admitted that after registration a man might dispose of his property absolutely, it would be introducing a dangerous novelty into our jurisprudence. The Bill required great consideration, and he hoped that an opportunity would be afforded for further inquiry.


said, he hardly knew whether his right hon. Friend (Mr. Whiteside) or the hon. Baronet who had just spoken intended to object to the Bill or not; for, although they had indulged in criticizms upon it, they had not asked the House to reject it. With regard to the principle of the Bill, he did not think any two persons could differ as to its excellence. What was its principle? Parliament had established in Ireland a Landed and Estates Court, the operation of which was after a careful investigation at great pains and expense to give to any person who had a good title a complete and indefeasible Parliamentary title. Instead of holding boxes of parchment and abstracts of titles extending to hundreds of pages, he received a small slip of parchment, which stated that he was the indefeasible and Parliamentary holder of the estate. Under these circumstances, what was the first observation which any man unlearned in the law would make? He would say it was an admirable system, and a most excellent piece of legislation which accomplished; such an object. He would also further entertain no doubt that the means had been secured by the Legislature for preventing that title from becoming entangled and I obscured as in times past. But what would he say if he were told that Parliament had done nothing of the kind—that it certainly j had established a court to restore a Parliamentary title, but that the moment that was done persons having claims against the estate might recommence the old system, incumbrance might be heaped upon in cumbrance, and at the end of twenty or thirty years the same state of things would be found as in the beginning. Now, as he understood the matter, the object of the Bill was to prevent such a state of things. It was, that as a court had been established competent to declare an indefeasible title, that court was to be enabled to watch the successive devolutions to that estate in favour of the person entitled to succeed, and who would, by virtue of that record, be in as good a position as the first holder. Now, unless there were some insuperable objection to the carrying out of that principle, it must commend itself to the mind of everyone as a most excellent arrangement. The truth was, that this Bill was well understood out of doors, and that was a most auspicious omen. He never remembered any measure of law reform in which so great an interest had been taken in Ireland. Associations of men of the greatest intelligence—owners of property, mercantile men—recommended the measure to Parliament for its adoption. And how was it that their attention had been directed to the matter? Why, they had seen what had occurred elsewhere. In our Australian colonies any one could avail himself of a measure of the same kind, and it had proved to be of the greatest advantage to the owners of property. The shipping interests, which represented millions of the property of this country, was dealt with on exactly the same system. The owner of a ship could sell it without any abstract or title, simply by virtue of being the owner. With regard to the objections to the Bill, there was one consideration which at once removed many of them, and that was that the Bill was entirely permissive. There was not a single owner of land even, if he had obtained a declaration of title, who could be compelled to place his property upon the record. Another answer that occurred was that persons owning a Parliamentary estate would surely be able to judge whether there was any substantial objection to the system or not. He would ask the House to recollect what Parliament had already done on the subject. In 1859 it was his duty, as the organ of the Government, to offer two Bills relating to the transfer of landed property in this country. The first of these Bills was very similar to that under which the Landed Estates Court was constituted in Ireland. It proposed to give a Parliamentary and indefeasible title The second Bill was founded on exactly the same principle as the present. It proposed to secure the means of recording the title and preventing it from being clouded after. These Bills were approved of at the time, but not passed; but they had since been carried by the present Lord Chancellor, and were now the law of the land. Whilst listening to the observations of his right hon. Friend (Mr. Whiteside), he could not help thinking that he had forgotten that the Probate Act in Ireland was the same as in England and, moreover, that in 1862 the Legislature passed the Transfer of Land Act, containing a series of clauses which were exactly the same as the clauses in the present Bill.


inquired if his hon. and learned Friend meant to say that the Judge of the Probate Court in Ireland had jurisdiction over real estate where there was no personal estate.


Probably not; but no one ever heard of a case of real property being devised without there being some personal property. But that did not militate against the provisions of the present Bill, for if the decision could not be in favour of the applicant's title, the applicant's title would not be recorded. There was another circumstance connected with the Bill which commended itself to his mind, that was, that it did not involve the creation of any new staff of Judges or officers, and that the only expense incurred would be the mere clerical expense of the writing. Any man who had once put his land on the record, if his experience convinced him of the folly of doing it, would be able to take it off and restore himself to his former condition. He thought that the provision requiring the judgment creditor to enter his judgment on the record of the estate was a wise one. As for the case of the guardian and his ward put by his right hon. Friend (Mr. Whiteside), he thought it was only one of those bugbears which were put forward to frighten the House; for if the property had not passed out of the hands of the guardian the Court of Chancery would be strong enough to make him restore it to the owner, and if it had passed by sale into the hands of a bona fide purchaser, the ward would be in no worse position after the passing of this Bill than he would be under the existing law. He knew the sources from which these sort of objections came. They emanated from those who wanted to con- jure up terrors to defeat a Bill which they imagined—he thought unwisely—would interfere with their own interests. He had compared the Bill as it stood with the Bill as originally introduced, and he thought that very important and useful changes had been made in it, showing that it had been carefully considered in some place or other. Considering that its clauses were mostly' the same as those in the English Act, he thought it would be wholly unnecessary to refer the Bill to a Select Committee, and looking to the anxiety which he knew existed in Ireland on the subject, he hoped the Government would induce the House to pass it through a Committee of the whole House, and not endanger its being passed by sending it at that period of the Session to a Select Committee.


said, he thought that the Bill would do no harm, but did not believe it would work as well as was expected. It was idle to think that the transfer of land could ever be made as simple a matter as the transfer of stock. He did not think there was the least analogy between the case of the transfer of land and that of the transfer of stock or the transfer of a ship; though he had heard the present Lord Chancellor say he hoped to see the transfer of land made as simple as that of stock, and though his hon. and learned Friend (Sir Hugh Cairns) had adduced the transfer of a ship as an illustration of what might be done with land. In the case of stock or of a ship nothing was looked to but the legal title. If A possessed stock he could go into the Bank of England and transfer it to B, and a ship could be disposed of in the same way; but neither were the subjects of family settlements, extending, perhaps, through several generations. This was the difference between them and land. Till they resolved that land should be transferred without any regard to equitable titles, they could never make its transfer a simple one. He did not offer any opposition to the Bill. It was a recommendation to the measure that it was only permissive, and if the gentlemen of Ireland were anxious for it, let them have it; hut let them not suppose that the Bill would do away with all the difficulties connected with the transfer of land. On the contrary, he believed those difficulties would speedily become as complicated under this Bill as they were under the present system, if not more so.


said, many of the objec- tions of the right hon. Gentleman (Mr. Whiteside) had been answered by the hon. and learned Member for Belfast (Sir Hugh Cairns). He thought that the anticipations of fraud and other dangers from the measure were groundless. It had been approved by the landowners, the Bar, and even many of the solicitors of Ireland. He believed that the Bill would be a great practical benefit to Ireland, much superior to some of the Utopian schemes from time to time submitted to the House. He pressed upon the Government the necessity of making the Bill law as speedily as possible. The principles embodied in it had found favour with men of all parties in Ireland.


said, this was a measure of law reform which was sanctioned by the House of Lords, and which to his great surprise and unfeigned delight, unlike other measures, did not create new jobs, superannuations, and so on; hut provided machinery which could be worked at a small expense. Still he was not so sanguine as to anticipate from it any great amount of benefit. It was said the people of Ireland were anxious for it. He knew how it had been written up, talked up, and lectured up, until the people believed that something like the regeneration of Ireland would result from it. Well, let them try it. He would vote for the second reading, but not under the expectation of the benefits which had been predicted as likely to accrue from it.


said, he disclaimed on the part of the body of solicitors any opposition to any measure properly tending to the development of the landed interest of the country. He did not think that the present Bill would afford much better provision than the laws of the country already provided, but as it was the wish of the country that it should be passed he should support the second reading.

Question, "That the Bill be now read a second time," put, and agreed to.

Bill read 2°, and committed for Thursday next.