MR. GREGORY, in rising to call the attention of the House to the Report of the Royal Commissioners appointed to inquire into the operation of the Land Transfer Act, and to move—
That, in the opinion of this House, it is desirable that further facilities should be afforded for the transfer of land,said, he did not propose to consider on the present occasion the question of title to property in regard to the Law of Entail and Settlement, but would confine his remarks to the ordinary transfer of land from one man to another. In order to elucidate the subject, he must describe the process now gone through in transferring landed property from a vendor to a purchaser. When a solicitor was instructed to sell an estate, he first had to examine the deeds with a view to ascertain whether the title was good for a period of 60 years, though in practice the time was generally reduced to 40 years. An abstract of the deeds was made, from which the solicitor could see the nature of the title and all defects and difficulties in regard to it. These were either removed by further investigation, or else it was provided in the special conditions under which the purchaser was to buy the property that they should not be an impediment to the sale. 563 The estate was then put up for sale, and the abstract was handed to the purchaser's solicitor, who compared it with the original documents, and prepared his requisitions on every point of which he had any doubt. All this, of course, involved considerable delay and expense, and supposing the title to be ultimately made out, as was usually the case, the investigation bound no one except the actual purchaser; so that in the event of the estate, or any portion of it, being resold, the same process had to be gone through again. The great hardship of such a state of things was so generally felt, that as long ago as 1857 a Royal Commission was issued for the purpose of considering the subject, and it made certain recommendations as to the registration of title, the general effect of which was that the registration should be the root of the title, so that any beneficial operation of that registration would be postponed until a good title was conferred by the lapse of time. These recommendations were not acted upon; but in 1859 two Bills were introduced by Lord Cairns, then Solicitor General, and, in his opinion, it was greatly to be regretted that they came to a premature end, for if they had been passed many of the still existing abuses would have long ago disappeared. Lord Cairns proposed to establish a Landed Estates Court, and to give it facilities for issuing declarations of title—not necessarily an absolute, indefeasible title, but a qualified title, if the Court so thought fit; while, by another Bill, he proposed to establish a Registry of Titles. The question was revived in 1862, when an Act for establishing a registry of title was passed. That Act, however, required that the titles registered should be what were called valid marketable titles, or, in other words, such titles as the Court of Chancery would enforce on an unwilling purchaser. There was no doubt that in practice that Act had been a failure. Two competent—most competent and zealous—gentlemen were appointed Registrars; but notwithstanding their zeal and ability the Act had not operated, in consequence of the burdens imposed on the parties registering. According to the provisions of the statute, persons wishing to register were obliged to show an absolute indefeasible title of 60 years, and in order to do that it was frequently necessary to go back 564 considerably beyond that period. In addition to that, in dealing with an estate for 60 years, it almost always happened that there was some slight defect in the title, some legal estate outstanding, some receipt not signed by the right party, or some missing link which in practice would not affect a title in the least degree, but which would cause it to be rejected by the Registrar. In fact, it had frequently happened that when a person sought to avail himself of the benefit of the Act, he had been confronted by obstacles the existence of which he had not the remotest idea. The next difficulty was the absolute identification of boundaries. In practice, it was usual to obtain from some old person who was acquainted with the property a declaration that the property proposed to be sold corresponded generally with the description of it in the deeds, and to the conveyance a map was appended which for all practical purposes sufficiently identified the property. But under the Act for the Registration of Titles an owner was bound to trace mathematically and accurately every hedge, every ditch, every wall, every fence which bounded his property, and, in order to do this, he was required to give notice to all adjoining owners and occupiers. Such provisions had militated most grievously against the operation of the Act, because people would not incur the risk of raising all these questions. Again, the Act required that when a property was once registered all subsequent dealings and transactions with regard to it should be inserted on the register, the result being that when estates were divided into small lots the expense of transfer was greater than if they were conveyed in the ordinary way. Under all the circumstances, it could hardly be a matter of surprise that the Act had been a failure. In his opinion, however, a simple remedy might be adopted, which would, to a considerable extent, supply the deficiencies of the Act of 1862, and remove the obstacles now placed in the way of registering titles. He would suggest that the Registrars should be authorized to deal with titles as titles were dealt with in practice, or, in other words, to grant a qualified certificate to the effect that the owner had made out a good title for 40 years or less, or a title subject to certain contingencies stated in the certificate. Under such a 565 qualified title there could be no practical difficulty in selling the property. He hoped he had said enough to show the necessity for getting rid of existing difficulties in the way of the transfer of land. He had received a letter from a connection in Victoria, who said that the plan he proposed was almost identically the same as that which had been in operation in the colony since 1862, and which was regarded as a very great boon; indeed, auctioneers would not undertake the sale of land unless the vendor had one of the certificates, or would make it a condition of sale that he should obtain one. He thought that if a similar plan were adopted in this country, a similar success would result. Without entering upon other and larger questions, which would have to be discussed at a future time, he would remark that there was always in the market a sufficient quantity of land for intending purchasers. There were usually from 100,000 to 200,000 acres of land to be disposed of in lots to suit all classes of purchasers; but the tendency of small holders was rather to sell than to acquire, because money could be more profitably invested in trade than in land. Therefore, it need not be anticipated that any change in the law would make the ownership of land more popular. Nevertheless, it was true that great impediments were thrown in the way of the acquisition of land, particularly in small quantities, by the enormous expense, the difficulty, and the trouble that attended a transfer, and it was this aspect of the question only that he desired to raise. Although it might be thought otherwise, he believed that the members of the legal profession would not allow any personal considerations to stand in the way of any scheme which would have the effect of simplifying the title to, and the transfer of land, but they would promptly second any efforts made with that object; and he should like to have the assurance that some such plan as he had proposed would receive the support of the Government, if the subject were not dealt with by the Government themselves.
§
Amendment proposed,
To leave out from the word "That" to the end of the Question, in order to add the words "in the opinion of this House, it is desirable that
566
further facilities should be afforded for the transfer of land,"—(Mr. Gregory,)
—instead thereof.
§ Question proposed, "That the words proposed to be left out stand part of the Question."
§ MR. WREN HOSKYNS* said, he heartily wished that he could share in the hope of any practical improvement of the kind they really needed in the transfer of land, as likely to arise from the very modest suggestions of his hon. and learned Friend on the opposite benches. They had Commission after Commission, and Report after Report, but still nothing was done. Here was another Report, to which his hon. and learned Friend had referred, the last of four, itself seven and twenty pages in length, with nine pages more, a third of the original, made up of dissentient statements, signed by six out of the nine Commissioners! a pleasing prospect of the efficacy of those labours upon which their hopes of any improvement hung, in a matter upon which they now were compelled to take rank behind every other civilized nation of Europe—of the world. This was shown by the "Land Tenure Returns," presented to the House of Commons the Session before last, which displayed the fact that in every nation of Europe but this land was now bought and sold with the utmost promptitude, cheapness, and simplicity; by the aid of a Government register, of the most absolute authority and compendious arrangement, and a map of ample scale and mathematical accuracy, upon which the boundaries were defined with minutest delineation. With those aids the sale and purchase of land were completed in the same time and with the same facility and certainty, as no country in the world exemplified better than our own, in every transaction connected with the purchase of stock, whatever its subject matter, ships, shares, cargoes, or Consols. His hon. and learned Friend's description of a sale of land with which he had treated the House reminded him of that given, not quite so seriously, by a still higher authority amongst conveyancers, Mr. Joshua Williams—
Consider for a moment what it is that a man does when he simply signs a contract to sell a piece of land. By the law as it now stands he firmly binds himself, by implication, to do at his own expense the following things:—To make out at his own expense and deliver to the purchaser an abstract of all the title deeds, wills, and other documents affecting the premises for the last 60 567 years. It will not do for him to Bay to the purchaser—'Here are the deeds; take them and look at them yourself: or, if you please, let your lawyer look over them.' No, the purchaser is entitled to an abstract. Having got his abstract, he is entitled to have that abstract verified by the production, at the vendor's expense, of every one of the title deeds. It frequently happens that many deeds are not in the custody of the vendor. No matter; he must find out where they are, and give the purchaser an opportunity of inspecting them He must then verify, at his own expense, every event upon which the title has turned, the death of every tenant for life or life annuitant, the pedigree of every heir-at-law, and the names and members of every class of persons, such as children, on whom the property may have been settled.…. The effect not unfrequently is to bring an honest vendor not fortunate enough to have had good legal advice into a very serious strait; and cases have occurred where purchasers have waived their strict rights on condition of getting the property for nothing.Now, would it be seriously credited by the inhabitants of any other civilized country that such a state of things could really be in existence here! in a country commercially the most practical in Europe? His hon. and learned Friend had repeated the statement made by Lord Derby at Liverpool, that there was "plenty of land for sale in the newspapers." Of course, there was. There was plenty of everything for the rich; and plenty of land for those who could afford a costly lawyer's bill, and a kind of land-suit, not to say law-suit, of unlimited duration. But Lord Derby, and following him his hon. and learned Friend, had overlooked, in making that statement, the very essence of the question. It had never been denied that land was transferable enough, on a large scale, to wealthy purchasers, where the proof of "title," however protracted, took but 2 or 3 per cent, say a year's rent, from the cost price. But it was to the small purchaser—the man who wanted a few acres to build a house upon, or otherwise—that this foolish cost of "title," increasing inversely with the acreage—for one acre was as old as a thousand, when once the question of ancient "title" was admitted—forbad the purchase, by a tax rising to 6, to 10, to 20, to 26 per cent! as shown in the tables of Mr. Sweet, the conveyancer, printed in one of those very Reports alluded to. It was idle to say to the small capitalist—"There was land enough for sale," when he knew that to him the investment would be eaten up by the brokerage. Compare that with a purchase in the Three per Cents, whose 568 "beautiful simplicity" often brought to mind Adam Smith's profound aphorism that "the acquisition of wealth might make a nation rich; but it was the distribution of wealth that made a nation prosperous and happy." Their commercial interchange was perfect. The whole of the Funds mainly consisted of small sums under £2,000, and such was their freedom and elasticity of transfer that an amount equal to the whole of the National Debt changed hands, they were told on the best authority, in four years. How was it, he would ask the House, that in the face of such facilities as those, in the same country the practical smoothness and ease of whose mercantile action commanded the admiration of the world, they could still endure a barbarous stagnation in their land dealings, which had scared away the small capitalist, the very bulk of their savings bank, and even funded proprietors from the land market by a costly system of prohibitory charges and dilatory completion. It was made a subject of reproach against large proprietors that land was constantly aggregating in large and larger masses. The fault was not theirs. How could it be otherwise under our preposterous system of inverse cost of transfer? Try the same experiment on the funds; intercept the exchange of small investments in the the Three per Cents by a process exactly analogous to that which affected the acreage of land in detail in this country, and how many small fundholders—the very class that constituted the bulk of investors—would remain in a dozen—how many in hundred—years? And that system has been going on in land for more than twice that period. The sellers had all sold—for sellers must sell—but the buyers had not bought, for buyers were not obliged to buy if the bargain looked untempting. And they knew what became of that stream which was always running out, but nothing running in. Could any one wonder that under such a system the land-proprietary of this kingdom should have diminished? And what had been the cause of that costly and dilatory transfer, stifling all the smaller purchases, say from £100 to £1,000? The answer was briefly but plainly indicated in the words of the Report under discussion—It is impossible," write the Commissioners, "to discuss any system for the more ready transfer of land without feeling that many impediments 569 which exist are owing to rules of law which permit landowners to make settlements of land for long periods, and do not provide any certain power to order the conversion of that land into money, however expedient such a course may be.It was in vain for his hon. and learned Friend to shrink from this question of lengthy entail and settlement. The language of the Commissioners' Report compelled their attention to that point as a cause of causes. Until the living generation had acquired a real interest in the land, and were freed from the double grasp of "the dead hand, and the unborn hand," as it had been truly called, he feared remedies such as those now proposed by him would fail. Too great a sub-division of the land was by no means desirable; it was detrimental to the system of agriculture most prevalent in this country. But the distribution of landed wealth, in the sense understood by political economy, should be as free as that of every other form of property, if possible, even more so, in so far as its possession was of all others the most conducive to a real and extended patriotism, "a stake in the country," among those classes in the State whose divorce from it lay at the root of the pauperism, the drunkenness and dissolute habits which sadly contrasted in this country with the habits of the corresponding class in other States, who were enabled to share in the cares and interests of proprietorship; as in Belgium, for instance, where the money here spent in drink was saved for the independent acquirement of land. He should be glad to see such a change as that, if not assisted, at least not obstructed by the operation of our law of Land Transfer. The demand was in fact no longer that land should be "as transferable as the Three per Cents," but as it was now in every other country of Europe.
§ MR. R. TORRENSsaid, that a considerable portion of his best days were spent in endeavouring to introduce into the Australian colonies a system of transferring land by means of the registration of title, which had effected there all the results so much desired to be brought about in this country. The success of that Act had, indeed, exceeded his own most sanguine hopes, as well as the expectations of those who had supported him. The great object in Australia was to establish a class of yeoman proprietors of land. The English system of con- 570 veyancing, however, caused great delay and expense, and was found to be an obstacle to attaining that end, and likewise hindered the progress of a new country. The principle of his measure was taken from the Shipping Law. There was no difficulty in transferring the largest interest in shipping: any merchant's clerk or shipbroker could do it with little delay and at small expense. The adoption of the new system in Australia had reduced the cost of the transfer of land literally from pounds to shillings, and the time occupied from weeks to hours. It had, at the same time, also substituted absolute and perfect safety in the place of insecurity, while it had enhanced the value of all the land in the country. One colony after another, seing the great advantages derived from the system, had adopted it, and in all cases with the same satisfactory results. The failure in this country was said to be due to the old and complicated titles; but some of the Australian colonies were of 60 years' standing and upwards, and the transfer of landed property from hand to hand was so much more rapid there than here, that a title in Australia would accumulate in 10 years a greater amount of documentary evidence than a title of a century old in this country. In Ireland, under the Record of Titles Act and the Encumbered Estates Act, the Estates Court could, after advertisement, and in the absence of any adverse claim, give an indefeasible title, and the official mechanism and statutory forms for conducting subsequent dealings had been adopted from his (Mr. Torrens's) Australian Act; and yet in Ireland, as well as in England, this experiment had failed. Why had a system which had been so successful in Australia that it had been adopted in one colony after another, failed in England and Ireland? It could not be because of entails and extensive settlements, because under the system of registration of titles in Australia there had been sufficient experience of limited ownerships and equitable interests in land, and yet the transfer of land had been effected without any confusion, danger, delay, or loss. The first and main cause of the failure of Lord Westbury's Act was the attempt to blend together two systems of conveyancing which were antagonistic and inconsistent with each other—namely, the system of conveyancing by deeds and by registration of 571 title. Under Lord Westbury's Act the parties might either use one of the statutory forms in the Act, or any deed or instrument. Every kind of document was allowed to be registered, and the entire principle of the registration of title was destroyed. When a deed was registered it had to be interpreted. The title to land in this country was now only one long retrospect, and all that historical research into the dealings of a man's ancestors could only be conducted by highly-paid lawyers at a great sacrifice of time and labour. The Act which was in force in Australia, declared that no deed or instrument should operate to charge or transfer land in any manner; but that as soon as the transfer, or mortgage, or charge, or other dealing had been entered by the proper officer on the record of title the land should become transferred or charged, or dealt with accordingly; while by Lord Westbury's Act the transfer might be effected by a deed that vitiated the whole process. The real advantage of the registration of title and its real essence was this—That the retrospective character of title to land was cut off—that one could not go behind the entry on the record, for each transaction was indefeasible in itself; so that when A transferred his land to B, the title of A was not to be examined, and the title of B was, as it were, direct from the Crown. When, therefore, mortgages and encumbrances were discharged from the record they ceased to be matters of record, and became defunct transactions, into which it was unnecessary for the parties examining the title to inquire. In this indefeasibility consisted the whole advantage of the registration of title. In Lord Westbury's Act, on the other hand, he found defects of mechanism which were sufficient to make shipwreck of the measure. It was wonderful that this country should so long submit to so great an anomaly as two sets of titles—the one perfect, the other a good holding title of a bonâ fide owner, who could not be ousted from possession, but who was not yet able to enforce a contract for sale. In Australia what was required was a good holding title. If the examiners of title found an owner in possession, and with evidence of title that would secure him from ejectment, he received an indefeasible title, although there might pre- 572 viously have been blots upon it. He believed that by adopting that system registration of title might with perfect security and ease be effected, with the same advantages that it had secured to the inhabitants of the colonies. He could not agree with the hon. and learned Member (Mr. Gregory) who introduced the subject, that it would be possible to abate the requirements of definite descriptions of the boundaries of property. If that were left open, the whole question would be left open. In other countries no difficulty was found in defining boundaries, and a system of maps, founded upon the Ordnance Survey, might be made so effective as to prevent many disputes about boundaries. In that way the transfer of land might be rendered as rapid, cheap, and economical as the system by which property in shipping was now transferred in this country.
THE SOLICITOR GENERALsaid, he must express his thanks to the hon. and learned proposer of the Motion and to the two hon. Gentlemen who had addressed the House upon it; for keeping them reminded of the necessity of some alteration in the law of the transfer of land. Beyond that agreement between the three hon. Gentlemen, he believed he might say they agreed also in another proposition, and that was that the Act of Lord Westbury, which had been introduced for this purpose, had, unfortunately, proved a failure. But there, he believed, their agreement ceased. His hon. and learned Friend opposite (Mr. Gregory) proposed to introduce what he might call a modification of it; but the modification was remarkable in this way—that the part of Hamlet was left out of the play, because the system intended by that Bill was a system of registration, and the system proposed to be introduced by the hon. and learned Member for East Sussex was not a system of registration at all, but of certificates of the goodness of title wholly irrespective of registration. The hon. Member who spoke last (Mr. R. Torrens) and the hon. Member for Hereford (Mr. Wren Hoskyns) were agreed to this extent—that whatever could by any possibility be done to facilitate the transfer of land which could be effectual must be a system of compulsory registration. He mentioned this not to ridicule the proposition of his 573 hon. and learned Friend, but to show how difficult the subject was, and how impossible to get men who had devoted time, learning, and research towards the elucidation of the subject to agree in a remedy that was necessary to cure the evil they all agreed in lamenting. It was not to be expected that with the Report of the last Commission before them, the Government could be immediately in a position to decide on the course to be adopted. It had already been stated by the hon. Member for Hereford—and he need not repeat the lamentable statement—that the Commission appointed to investigate the subject gave in almost as many Reports as there were Commissioners. They seemed to have agreed simply in disagreeing and dissenting from one another; and it was quite impossible to say that such a series of Reports could afford by itself a sufficient basis for the action of Government. But he thought he might say that the Government were fully convinced of the necessity of some effectual reform in the mode now adopted in the transfer of land, which laymen and lawyers alike asserted to be one of the most complicated, expensive, and absurd systems ever adopted or allowed to continue in a civilized country. In behalf of the Government, he thought he was entitled to say that not only would the matter have their fullest consideration, with a view to the amendment of the law, but it had already received a very large amount of consideration, on the part especially of the Lord Chancellor, the highest legal Member of the Government, and he thought he might tell the House that matters had proceeded so far that a Bill had been actually prepared with a view to carry out the contemplated mode of reform; but from the pressure of other business it was not probable it would be in the power of the Government to bring forward the contemplated measure during this Session. That expectation, however, he hoped might be disappointed. The numerous important measures Government were compelled to proceed with might so rapidly, so easily, and so satisfactorily be disposed of, that before the end of the Session there might be time to introduce the measure; and if that fortunate event should happen, the Members of the Government would only be too happy to avail themselves of the opportunity. Of course, 574 in these circumstances, it would be useless for him to occupy the time of the House in prolonging the present discussion, beyond stating that the measure in contemplation of the Lord Chancellor, whenever brought in, would be not a small measure, as had been suggested by the hon. and learned Member for East Sussex, but a large, comprehensive, and, he hoped, effectual measure for the object proposed. He hoped, however, his hon. and learned Friend would not suppose he was censuring his smaller measure, for, on the contrary, he thought the House owed him many thanks for taking the step he had. Under these circumstances, his hon. and learned Friend would see that it was not desirable to pledge the House to an abstract Resolution of this kind, which really and truly bound them to nothing, but still might prove a source of embarrassment when they came to deal with actual measures propounded in the form of Bills. Considering that his hon. and learned Friend had accomplished one of his objects by keeping the subject alive and before the country, and having had this promise on the part of the Government, he hoped he would be satisfied to withdraw the Motion.
§ MR. W. FOWLERsaid, he was glad to hear the statement of his hon. and learned Friend the Solicitor General, and felt satisfied that when he took a matter up, he would not leave it till something effective had been done. He desired to point out to the House what seemed to him to be the only sound principle upon which this question could ever be settled. The system of registration was perfectly effectual as carried out in all matters relating to personal property. If he went to the Bank of England for a transfer of stock, the stock was transferred and no questions were asked as to the trusts on which he might hold it. The only questions put were—"Are you the owner of the stock, and do you want the transfer?" Why should the owners of land in this country not be able to get it transferred as the owner of personal estate could get that transferred? Why, there was evidence to be produced in favour of the adoption of that course in a passage from the Report of the Commission which sat in 1857, to the effect that if there had been a register of land as there was of ships, stock, and railway shares, 575 it would be difficult to point out any distinction between them, so far as concerned the mode in which they could be effectually transferred and sold. The same thing was practically repeated in 1870, and yet nothing was done except the passing of an Act of Parliament, which was reported to be an utter failure. Such a state of matters was not creditable to Parliament. On the Continent no great difficulty was found in the registration of titles and deeds. Though the settlements of land might continue to be made as at present, there might be a register of title; and the transfer of title would be perfectly easy. That was a question not merely affecting the rich man, but it affected also poor people desirous of obtaining small pieces of land. It was said to be absurd for poor people to have small pieces of land. There ought not, however, to be any legal hindrance to their acquisition of them; and if there were any economical objection to the purchase of small pieces, the people might be left to find that out for themselves. He hoped that the present discussion would have the effect of spurring on the Government to attend to this matter with more energy than heretofore. The House spent a great deal of time on personal and party questions, and allowed great social questions to go by. He hoped before another year passed a good and broad system of registration would be introduced, and not merely such a measure as that suggested by the hon. and learned Member opposite (Mr. Gregory), for that was not large enough. What he desired was a larger, and, if he might say so, a more revolutionary measure.
MR. STAVELEY HILLsaid, he was decidedly of opinion that greater facilities for the transfer of land should be provided; but it was unnecessary that the whole system of land transfer should be revolutionized in order to effect it. He could not concur with the hon. Member who had last spoken (Mr. W. Fowler) in condemning Lord Westbury's Land Transfer Act, which he thought one of the most useful measures that had been passed during the last 16 years, and one that would work satisfactorily if it were amended so as to remove the difficulties which impeded its usefulness.
§ Amendment, by leave, withdrawn.