HC Deb 14 March 1871 vol 204 cc2023-30

, in rising to call the attention of the House to the Report of the Royal Commissioners on the operation of the Land Transfer Act, and to move "That it is expedient to afford further facilities for the declaration of title through the office of Land Registry," said, that the matter was one of considerable importance, and well worthy of the consideration of the House. In the year 1857 a Commission was appointed to consider the whole question of the transfer of land and the registration of titles, and they reported that there ought to be throughout the country a compulsory registration of title, but they felt the difficulty inherent in such a scheme—namely, that it would be impossible to compel the registration of antecedent titles—and they proposed for the future to start with the registration of the conveyance on any transfer that might take place; but the effect was this—that a long period of time must elapse before a title could be acquired by means of such legislation; and therefore, in 1859, Lord Cairns, who was then Solicitor General, brought in two Bills—one for the establishment of a Landed Estates Court, and the other for the establishment of a Land Registry, and he proposed to give the Landed Estates Court the power of declaring titles, and it was a matter of great regret that that Bill did not receive the sanction of the Legislature. They had heard that land was prevented from being distributed by entails and settlements; but he believed that the great reason why it was not more distributed was the difficulty and the expense of investigating titles. There was, in fact, large quantities of land in the market, but parties were deterred from purchasing for those reasons. In 1862, the subject was again renewed, and two Bills were brought in, and passed, by one of which power was given to the Court of Chancery to grant a declaration of title, but that Act had become a dead letter. The other Act, which was in more active operation, was that by which a land registry was established to register titles. But that Act was not compulsory. A person was empowered to register his land, and thus acquired an indefeasible title, and could put the property into the market. But the grant of a certificate of title was subject to three conditions which fettered the operation of the Act. These conditions were that a title must be shown to be indefeasible; that the boundaries of land must be mathematically defined; and notice given to every adjoining occupier, and to the party to whom he paid rent, and that all subsequent dealings with the land must also be registered. With regard to the indefeasible title, it was required that it should be for a period of 60 years, and the title had to be traced through the whole of that period, showing that all charges on the land had been met and had been duly and legally released; that all deeds had been properly executed, and all pedigrees and derivations of title had to be shown by legal evidence. Of course, there were many things in a title which must be matters of inference and of presumption rather than of proof; and he entered into the details of a particular case to illustrate the difficulty of satisfying all the conditions imposed. In actual practice minute points were not regarded; but what was done was this. A party desiring to sell had his title investigated by his counsel or solicitor, and if there appeared to be any small defects, they were guarded against by special contract, or by conditions of sale, and one usually adopted and most efficacious in its operation was to throw on the purchaser the expense of clearing up of any defect. The effect of this was that minute points were waived or disregarded. The second condition of registration was that the boundaries of estates should be clearly defined, and notice of the intention to register was to be given to all adjoining landowners, and to all occupying tenants, a regulation that frequently entailed considerable expense and trou. ble By rendering such notice imperative persons were encouraged — and, indeed, almost compelled—to make adverse claims, and to revive those which had been long dormant. The third requirement was that all subsequent dealings with the land should be registered and pass through the office. In the case of the subdivision of land for building purposes, it was a great hardship upon poor people who bought a plot of land for £20 or £30 that they should be compelled to pay an additional sum of £3 or £4 as the expense of registration. In 1867 a Royal Commission was issued to inquire into the operation of this Act, and in 1868 they presented a Report, which consisted of two parts—findings and recommendations. As regarded the findings the Commissioners did not differ; but with respect to the recommendations they differed considerably. In dealing with the question of marketable and indefeasible titles, they stated that what the purchaser required was not an indefeasible title, but such a title as would make him reasonably secure, and so little did they want an indefeasible title that they would overlook certain blots and defects. There was considerable difference of opinion as to the remedy to be applied. The Commissioners suggested that they should register the first conveyance—start with that as the root of the title, and that the register and title should take effect from that date. But there was this great difficulty — that no remedy could by this be applied to the existing state of things, and, until after the lapse of 30 or 40 years, the delay, expense, and trouble to which people were now subject, must continue. The question was whether some remedy could not be applied which would be more immediate in its action, and more beneficent in its operation, and by which the delay, trouble, and expense of continued investigation of titles might be saved as at present. Before offering property for sale a vendor always had his title investigated, but this by no means bound the vendor, who had to look into the matter again, and the second investigation was money absolutely thrown away. But no solicitor could give it up. He was responsible for any defect which might appear as to the title, and could waive nothing. What he would suggest was this. There was an office of land registry in operation, and power was given to grant certificates of indefeasible title. Let that office certify such titles as were ordinarily given. Let them grant a certificate that a man possessed a good title, subject to conditions and qualifications. Let the title be good so far as it was certified; but let them make certain reservations, and the man taking the certificate could then go into the market and say—"Here is my title certified so far—you shall have any defects removed at your own expense, or you may waive them if you do not choose to go to that expense." If this proposal were adopted, the large sums which were now spent in investigating titles would be saved, and the transfer of land would be rendered far easier than it was at present. The hon. Gentlemen concluded by moving his Resolution.


, in seconding the Motion, said, he felt obliged to the hon. and learned Member who had introduced the question, than which one more important could hardly be brought before the House. He (Mr. Wren Hoskyns) had for a long time taken a deep interest in this subject, having watched the effect of the existing law during the period to which his hon. and learned Friend had directed the attention of the House. In the Report of the last Commission which sat on that subject, the Commissioners expressed their opinion that before any successful effort could be completed for the transfer of land, there must be a revision of the law of real property altogether. The difficulty which really applied to the transfer of land arose in consequence of the length of title that must be examined into; and so long as the title must be of that length, it was almost impossible to place on the register a title which could be a matter of easy commercial transfer between man and man. Why was it necessary to go back 60 years to get a title? Because so much power was given to landowners to make charges on the land that lasted over a great number of years; and, of course, there must be a correlative power to look into those charges when they endeavoured to make a title. It was a national misfortune that there were so few owners of land in England. Although we had no proper statistics on the subject, yet he believed there was scarcely a continental country in which the ownership of land was con- fined to so small a number of persons as was the case here. Such extensive improvements had been made in the land laws of Prussia, Bavaria, Austria, and even Russia, in this century, that we lagged behind almost every other European country in respect to the extension of the advantages, and, he might say, the blessings of the ownership of land to the general community. In England a man might go into an auction-room and bid for a piece of land, and the moment he had done so he found, himself pledged to something equivalent to a positive lawsuit, which might extend over six months or two years before he could realize actual proprietorship. It was a disgrace to a civilized State that there should not be a power of acquiring a portion of the land of the country on terms a little easier than was the case here at present. The attempt to register the muniments of title to land could only have the effect of burdening the register and making it more difficult to examine it. What was wanted was that the results should be registered; and that, he feared, could not be accomplished unless they made up their minds to have a greater number of fee-simple titles to land. There now existed so many estates for life, extending to the next generation, before the actual ownership of the land was decided by the fee-simple. It had been said that it ought to be as easy to buy land as to buy a horse; but how would it be possible to buy a horse if the ownership of the one half of it was in one century and that of the other half was in another century, as was the case with land? The real impediment to the transfer of land was the immense period over which the ownership extended. Our middle classes were accustomed to invest their money where they could at once obtain what they purchased — where there were no delays, no unknown costs, no wearisome forms that disgusted them with their bargain before it was completed; and as to our lower classes, they found the purchase of land to be utterly hopeless. In other countries the acquisition of land was an object attainable by the whole community. All the great political economists said that the accumulation of wealth might make a nation, or part of a nation, rich; but that it was the distribution of wealth which made a nation happy and defended it from an army of pauperism, crime, and other evils to which society was liable. Let them apply the doctrine of Adam Smith to this matter, and they would find that in regard to land they now almost bade defiance to the principles continually appealed to as those which conduced to the happiness and prosperity of a nation. That subject of the transfer of land was made too much of a lawyer's question. They ought, first, to make the article itself transferable, and then its transfer would not be so difficult. The common charge against the Code Napoleon was that it subdivided the land to excess, prescribing so much and leaving so little scope to testamentary power; but in this country we almost imitated the mistakes of that code in a still more dangerous degree, though in a different way, because we cut up the ownership of land into so many different, deferred, and complicated interests, breaking up the true interest into such a great variety of small estates. The hopes built upon Lord Westbury's Act had been disappointed owing to that state of things. Lord Cairns' admirable intentions in regard to that subject were frustrated by the dissolution of Parliament, and Lord Campbell, Lord Brougham, the present Lord Chancellor, and, indeed, almost all the Law Lords had, in turn, attempted to give facilities for simplifying that question; but he was sorry to say he believed that none of those efforts would be successful until they first consented to go into the whole subject of the law of real property. That work was begun in Prussia in 1807, and completed in the middle of this century, and it had nearly doubled the value of land in that country, increasing the national happiness in a manner seldom witnessed in any State. The recent successes of the patriot soldiers of Prussia might be accounted for in no small degree by the fact that a large part of the Prussian Army went from homes which they owned in fee-simple to fight in a foreign country, and had those homes to return to when the war was over. He was not one of those persons who thought that the landed proprietors of this country were to be reproached as the authors of the present state of things; on the contrary, he believed they were oftener the victims. Many men of their class had expressed a most liberal desire to see the transfer of land facilitated in England, and the great subdivision of the interest in land put an end to by fee-simple ownership becoming more common. In Denmark, he thought, and also in Russia, there was a practice of retaining under the system of entails land which belonged to ancient families who were looked up to with honour by the State; and in those cases exceptional entails were made. He did not see why a similar means might not be used in this country for escaping from the great difficulty of any attempt to abolish or interfere with the right and practice of entail. He hoped, in conclusion, that the whole subject of Land Transfer would receive the attention of the House, inasmuch as it was a proper one for early legislation.

Motion made, and Question proposed, That, in the opinion of this House, it is expedient to afford further facilities for the declaration of title through the Office of Land Registry."—(Mr. George Gregory.)


said, he had, on a former occasion, when this subject was discussed, stated that it was under the consideration of the Government, and he had now to add that a Bill had been prepared to deal with it; but it was doubtful whether the state of Public Business would permit its introduction during the present Session. He had, however, the authority of the Lord Chancellor for saying that if the Bill were not brought forward, this Session it should be introduced early in the next one. When that measure was introduced it was inevitable that the question would have to be discussed at great length, and under those circumstances he should refrain from going into it in detail now. He quite agreed that the transfer of land should be made more easy and simple, and he had no doubt that that result could be arrived at; but he was by no means certain that land could be made as easy of transfer as capital, as there were such inherent differences in the subject-matter which could not be removed. The Act of 1862 had, no doubt, turned out a failure, mainly because it dealt with indefeasible titles, which were very difficult to obtain, while practical merchantable titles were not so difficult to obtain. The Commission had suggested that the existing registry might be utilized, and that by the establishment of an additional registry the trans- fer of land with an ordinary title might be facilitated. That was the object of the Bill which had been prepared, and was now in the hands of the Lord Chancellor. But he would go into the question at length when the Government Bill was introduced, and in the meantime he trusted that his hon. and learned Friend would not think it necessary to press his abstract Resolution.


said, that after the assurance just given by the hon. and learned Gentleman that the Government would deal with the question at as early a time as possible, he would withdraw his Motion.

Motion, by leave, withdrawn.