§ Order for Committee read.
THE ATTORNEY GENERAL
said, that, in moving last year the second reading of a measure of a similar character to the present one, he indicated what appeared to him to be the necessity for legislation on the subject, the objects for which such legislation was desirable, and the means by which it was proposed to accomplish those objects. He then took the opportunity of directing the attention of the House to the interest which for many years had been taken in the subject of facilitating the transfer of land, as also to the various attempts which had been made to establish a satisfactory land registry, to the failure of such attempts, and to the causes of such failure. He did not therefore propose to travel over the same ground on the present occasion. The great object to be sought by any Bill of this kind was to provide suitable means by which a title could be declared to be good, and by which, when once authoritatively declared to be so, it should be preserved and continued through successive alienations and charges. He did not sug- 1415 gest that the present Bill would effect any very great saving of expense in establishing and registering, in the first instance, the absolute title of a person to property. The real advantage of having a register of titles was that, when once an absolute and clear title to a property had been ascertained and placed on the register, it could be subsequently dealt with at a trifling cost and trouble. The Bill differed in some respects from the one of last year. It was less ambitious in its character. Those who had read the Reports of the various Commissions and Committees which had examined into the subject would be aware that one of the chief reasons to be assigned for the failure of Lord Westbury's Act was that it was too ambitious in its scope, endeavouring, as it did, to deal with almost every imaginable class of titles. The present Bill was very much more simple. It was divided into five parts. The first part referred to the entry of property on the register of titles; the second and third parts provided for dealings with registered land; the former for registered, and the latter for unregistered dealings; the fourth part contained supplemental clauses providing for a variety of cases which would arise from the property being of various descriptions and from the varied character of ownerships; and the fifth part related to the mode in which the provisions of the Bill were to be carried into operation. He would explain entry a little more in detail. As regarded the first part, that which related to rating on the register, he would observe that the properties, proposed to be dealt with, were of two kinds, freehold and long leasehold—the last-named being held for a life or lives, or upon terms, tenures, determinable on lives, or for terms of which at least 21 years were unexpired. The persons who were to be entitled to register were also divisible into two classes. When the Bill was originally introduced, it was proposed only to deal with absolute beneficial owners; but Amendments had been introduced to enable beneficial owners to have the names of nominees placed upon the register instead of their own; or the names of trustees or donees of power of sale might be placed upon the register. The effect of registration would be that the owners of property in fee simple would be placed upon the register; but the title so registered would, or might be, 1416 subject to incumbrances—some of which would be themselves registered and, others such as tithe-rent charges, succession duty, &c., would be declared incumbrances by the provisions of the Bill, and would not, except under special circumstances, be noticed on the register. In order to lessen the number of this second class of incumbrances it was proposed that, in case the Registrar were satisfied by evidence that any property or properties were free from any or all of them, he should enter the fact upon the register, as, for instance, that the property was free from tithe or tithe rent-charge, or that succession duty had been paid, &c. There were other proposals for lessening the number of incumbrances, which would be explained when the House had resolved itself into Committee on the Bill. It was also proposed that the right to mines and minerals, where such rights existed, should be placed upon the register. In order to guard against improper registration, the Bill contained provisions that notice of intention to register should be given in order that any persons who had the right of objection might have full opportunity of exercising such right before the Registrar. The Registrar would have the power of deciding any objections made; and, in case the parties were not satisfied, there would be an appeal either to the Court of Chancery or to some other Court which might be appointed for the purpose. Registered owners of property would be supplied with documents of title of which they could avail themselves for the purpose of creating equitable mortgages. Power was given to register titles which were not absolute, but possessory. Provision having been thus made for the entry of the title on the register, the second and third parts of the Bill dealt with transfers of property, including the creation of mortgages and charges and the transfers of mortgages and charges; and the object of these portions of the Bill was to give class transferres of a more efficient protection than they had hitherto enjoyed. The next part of the Bill contained supplementary provisions for dealing with property of a peculiar character, and also of dealing with interests of a particular kind, such as those of married women and children. By the next portion of the Bill, amongst other things, power was given to the Lord Chancellor to establish district re- 1417 gistries. There remained one difference, between the Bill of last year and that now under consideration, to which he desired to direct attention. In the Bill of last year provision was made for the compulsory registration of titles upon purchases made after three years from the passing of the Act, with an exception in favour of properties, the purchase monies for which were less than £300. In the present Bill there was no such provision. He was bound to admit that he had last year strongly advocated the compulsory provisions, and he still retained the same opinion; but the objections raised to the proposal were so many and so strong, and the doubts whether it would work were so considerable, that it had been thought best on the present occasion not to risk the passage of the whole measure by introducing a provision in regard to which so much difference of opinion existed. The Bill was introduced with an honest desire to deal with an admittedly difficult question, and if it did not attempt so much as was proposed in the Bill of last year, he believed that, if it passed into law, it would at least conduce to the increased security of titles to land, and to facilities of dealing with it.
§ Motion made, and Question proposed, "That Mr. Speaker do now leave the Chair."—(Mr. Attorney General.)
MR. OSBORNE MORGAN
said,* if he desired to justify the course he had taken, he might do so by a reference to the Attorney General's speech last year, when, in arguing in favour of the compulsion clause which the Bill then contained, he had emphatically declared that, "to deprive the Bill of its compulsory character, would be to take from it its chief advantage." And yet he now turned round upon them and asked them to accept the Bill shorn of what, according to his own showing, was its chief recommendation. Now, if this were a new experiment in legislation he should have been quite ready to have stood aloof and awaited the result. But they were travelling along a road strewn with the wrecks of former measures. The history of legislation on this subject had been a history of conspicuous, he might say ignominous, failures. To the present generation of lawyers the establishment of a system of land registry had been very much what the discovery of a North-west passage was to the last gene- 1418 ration of seamen, a thing which everybody thought could be done, but which nobody ever managed to accomplish. Of eight Bills which he recollected introduced with that object, one alone—Lord Westbury's Act of 1862.—had become law. It would be instructive to examine into the causes of the failure of that measure, in order, if possible, to avoid falling into them. He well recollected the flourish of trumpets with which that Act was introduced. He remembered Lord Westbury's boast that if that Act were passed every landowner would be able to carry his title deeds in his waistcoat pocket, and the picture which he drew of a country gentleman in his easy-chair after dinner regaling himself with the sight of his muniments of title printed upon a piece of paper about the size of a large visiting card. Well, that was the promise. What had been the performance? The Act had only been in operation six years, when its author was called upon to preside over a Royal Commission to inquire into the causes of its failure. That Commission reported that from October, 1862, to January, 1868, the total number of applications under the Act had only been 507, and the total number of titles registered 209; and since that time there had been more applications, he believed, to take titles off the register than to put them on it. The Commission reported that the unpopularity of the system established by the Act was due to two or three small blemishes in it which the present Bill certainly avoided. But the Report was the Report of three Commissioners only out of 12—three having wholly, and six partially, dissented from it. Under those circumstances, he thought they were at liberty to gather, upon the evidence and from the conclusions of the various Commissioners, the causes of that failure. And he thought they were not far to seek. The Act authorized registration with two kinds of title—an "indefeasible" and a "defeasible" title—in other words, a good title and a bad title. Now, if a man had a good title he was generally content to let it alone; if he had a bad title the very last thing in the world which he would do would be to stereotype and proclaim the fact by putting it on a public register. But this Bill really adopted Lord Westbury's division, merely substituting "absolute" and "qualified" titles for "indefeasible" and "defeasible" 1419 ones, with one important additional provision, that registration was not to affect adjoining owners. But this alteration cut two ways, for if it made registration in the first instance more easy, it made it, in the long run, less effectual. No doubt the Bill contained a provision for the registration of "possessory" titles; but he hoped to show that the advantages conferred by this mode of registration were so remote, in comparison with the cost imposed, that, now that the Bill had been made permissive, it would be practically inoperative. Further, it was impossible not to see that the machinery provided by the old Act would have proved quite inadequate if the Act itself had proved a success. And yet they took over this machinery—stamped as it was with the reputation of failure—and, without increasing its force, placed upon it all the additional work which it was said this Act would bring with it. Was not this very much like taking a horse which had proved himself barely up to the weight of his hon. And learned Friend the Member for Taunton, and putting the Solicitor General upon it? A good system of land transfer ought to secure three objects—first, security to the holder; secondly, cheapness and facility of transfer; and, lastly, uniformity. And he thought that in none of these three particulars would the Bill be an improvement upon the existing system. As to security, it was a mistake to suppose that the title to land in England was at present insecure. Last year he mentioned that, in the course of a professional experience of more than 20 years, he had only come across three cases in which a purchaser or first mortgagee had been disturbed in his holding; and as a proof that the present system gave practical security, he would quote the evidence of Mr. Rowcliffe—a most competent witness—before the Royal Commission, who said—I may say that during nearly twenty-five years of litigated business arising in all parts of England, I have never known a purchaser lose his property from any unknown defect of title.Now a man could not be safer than safe, so that as far as security went the Bill was not wanted at all. Moreover, it was a fallacy to suppose that even "an absolute title" meant a Parliamentary title, and as to "possessory titles" it was only necessary to glance at the 8th clause to see that registration with such a title gave no present protection whatever. 1420 It gave the holder, no doubt, something which 40 years hence, when he was dead and buried, might ripen into protection, but this was obviously not the sort of thing which a person registering wanted for his money. Then, as to the second point—cheapness and facility of transfer—no doubt the present system left much to be desired. When a man bought property in England, he could rarely form a guess even as to the cost of completing the purchase. Cases had been cited in which purchases amounting to £1,000 had been completed for a few pounds, while there were others on record where the cost had exceeded half I the purchase money. The reason was that there were titles so simple that he who runs may read them, or so well known that nobody ever thought of investigating them, while there were others so complicated that it required an Act of Parliament to disentangle them. Now, did the present Bill really remove these anomalies? Would it really effect a material saving wherever it was adopted? Upon this point the course taken by the author of the Bill last year was, in his opinion, at least conclusive. It would be remembered that the Bill, as originally framed, made registration with a "possessory" title compulsory in all cases after three years. It was pointed out to the Lord Chancellor that the cost of such a registration would be so heavy that it would amount to an absolute prohibition on small purchases. The Lord Chancellor admitted the force of that objection, and exempted purchases of £300 and under from the operation of the compulsion clause. Now was not that an admission that this was a rich man's Bill, and not a poor man's Bill? that registration under it was a luxury too costly for those in whose interest such a Bill ought chiefly to be framed—the artizan who had scraped together enough money to buy the cottage in which he lived, or the small farmer who wanted to add a field or two to his little freehold? If they looked to the Bill itself they were loft completely at sea, for it provided simply that the title should be investigated in the prescribed manner, which meant in the manner which the Lord Chancellor might hereafter enact—section 110. So that it really seemed less like an Act to simplify the title and transfer of land than an Act to enable the Lord Chancellor to make such 1421 an Act. Certain things, however, could not he dispensed with. Thus, under the 17th clause, the person registering was compelled to challenge the world to come in and dispute his title. The 73rd and 74th clauses, too, with their provisions for arguing disputed questions before the Registrar, with an appeal to the Court, whatever that might be, and so on through the various stages of intermediate and final appeals, looked very much as if his hon. and learned Friend, commiserating the state of destitution to which the legal profession would be reduced when the reforms now contemplated came into operation, had set himself to work to provide occupation for frozen-out lawyers. Then, there was the 41st clause, which provided that when a registered proprietor died, the parties should go before the Registrar, who was to settle whose name was to he placed upon the register, just as if it vas not a sufficient misfortune for a man to die without being compelled to leave behind him the legacy of an inchoate Chancery suit. He might refer to other clauses, but he thought he had made it clear that the Bill left the cost which a purchaser incurred at present untouched, while, by requiring the same process of investigation to be gone through a second time before the Registrar, it added a large mass of additional expense. Then, as to the third desideratum—uniformity of system. There could be no doubt that English real property law was a jumble of half-a-dozen systems, some of which had come directly down from feudal times—the necessary consequence of our having gone on for ever building upon the old lines and with the old materials. One would have thought that the first object of such a Bill as this would have been to simplify and assimilate these discordant systems. But the Bill abolished nothing; it merely added on three new systems of land tenure, while it left the existing systems untouched. If it were passed, a man might purchase a farm consisting of four fields; the first might be held under an "absolute" title, the second under a "qualified" title, the third under a "possessory" title, and the fourth under an "unregistered" title. Let them see what a vast area the Bill left untouched, and then ask whether it was worth while to pass it at all. It left untouched (1) copyholds, (2) customary freeholds, (3) lands held in settlement, which were 1422 computed to comprise three-fourths of the lands of England. But was it so sure, now that the Bill was made permissive, that the Act would be adopted even where it was applicable? He had always maintained that a system of registration to be effective must be compulsory. Indeed, the possibility of making such a measure compulsory was a fair test of its merits. For if its provisions were workable, if it conferred great benefits and imposed no comparative burdens, what was the hardship of compelling people to adopt it? If, on the other hand, it did not fulfil those conditions, why pass it at all? But he went farther, and expressed his belief that the best system of registration would not be generally adopted if made permissive. How many titles did Lord O'Hagan say had been registered under the Record of Titles Act in Ireland, which was a permissive Act? You had to overcome a certain vis inertia on the part of the public and their advisers. In fact, you could not coax people into adopting the best system of registration in the world, for it necessarily involved a present outlay for the benefit of those who came after them, and as a general rule people did not care about spending money on posterity. The only person in England who recognized the duty of spending money upon a future generation was the Chancellor of the Exchequer, and he had the advantage of being able to put his hand into other people's pockets. But would any person voluntarily pay money for the privilege of running his head into such a noose as was provided for him by the clauses of this Bill? The utmost that could be hoped was that the Bill would be a dead letter, and perhaps in the year 1885 we should have the Attorney General, like Lord Westbury, and, let them hope, occupying the same exalted position, called upon to preside over a Royal Commission to inquire into the causes of the failure of his own Act. But it might be said, why not amend the Bill? He believed, however, that the Bill proceeded upon a wrong principle. It begun at the wrong end. It called itself a Bill to simplify titles, and yet it hardly dealt with titles at all. And yet in this lay the whole problem; for if you simplified your titles your conveyancing would simplify itself. While he was upon this part of the subject, he wished to say a few words upon a question 1423 which had often been agitated—the possibility of assimilating the transfer of land to the transfer of stock. He would say at once that you could not altogether assimilate the two things, and that for two reasons. In the first place stock was a debt, and in the case of its transfer you had the Bank of England in the background, which was bound to make good to the rightful owner any loss which might occur through its negligence or default. But no one proposed that the Land Registry Office or the State should guarantee the rightful owner of land against the consequences of a wrongful transfer. But there was a further reason why the two things could not be assimilated. Stock was an abstract thing. Land was a concrete thing. One pound of stock was as good as another, but one acre of land was by no means as good as another. Moreover, land was a concrete which was not always easy of identification, differing in this respect from a ship and most other personal chattels. If he wrote to his broker and directed him to purchase £1,000 worth of Consols he might feel as sure that he had got the thing he wanted as if he had the proceeds in his own pocket. But if he wrote to his solicitor or agent to purchase "Dale Farm" it might take weeks and even months before he could be absolutely certain that he had got the very thing he had contracted for. He referred to a case in which he had been professionally concerned, in which a man had taken a mineral lease of land in Cornwall which was described as "bounded on the east by John Vincent's house." It turned out that there was a valuable lode of copper just under John Vincent's house, the right to which depended upon whether the boundary line was drawn from the east or west side of the house—a right which it took two chancery suits and three actions of ejectment to determine. No doubt a good map would do much to remove such questions, and, in his opinion, a good cadastral survey was the first condition of a system of land registry, as necessary to registration as a compass was to a ship. But, admitting that there were causes inherent in the subject-matter which made it impossible entirely to assimilate the transfer of land and stock, there was no doubt that much of the difficulty of transferring the former, as distinguished from the latter, proceeded from the mode in which the aw allowed it to be dealt with. Every 1424 pound of stock was required to be registered in the name of some one or more persons who were competent to dispose of it by law. But land might be tied up through successive generations, and split up into a variety of partial interests, and it was in hunting out for the owner of these various interests that time and money were consumed. Settlements, entails, powers of joint-urging, powers of portioning—these were the real criminals whom you had to arraign. Require that every acre of land should be registered in the name of some one or more persons, be they tenants for life and remaindermen or trustees, who should have absolute power to make a title to it, and the transfer of land would become almost as easy as the transfer of stock. It might be said, Would you abolish settlements of real property then? By no means; but then settlements of realty should be like settlements of stock. The trust should be kept off the register, and the equitable owners should be left to protect themselves by the same means as the equitable owners of stock. That was the opinion of some of the most competent witnesses examined before the Royal Commission. He would give one instance, Mr. Ford, who, at page 65 of the appendix, said—In my opinion no real advantage will accrue to the public till land is treated like Government stock, and is capable of being transferred by trustees without regard to equitable interests or interests less than the absolute ownership.That was the system in force in South Australia. True it was that in Australia land was an article de commerce, whereas in England it was becoming an article de luxe. In Australia it was a marketable commodity, in England it represented the pretium affectionis. In Australia the object of people was to make it as marketable as possible, whereas the object of most persons in England seemed to be to keep it out of the market as long as possible. But did not this show that the difference lay not so much in the subject-matter itself as in the associations and sentiments which had grown up around it? No doubt those sentiments were at the present moment strong enough to defeat such a proposal as he had thrown out, however useful and unobjectionable in itself. But what he wished to insist upon was this—that anything short of such a radical change would do little or 1425 nothing. As it was, you were merely nibbling at a great question—applying a homœopathic remedy to a disease of 500 years' standing. Did his hon. and learned Friend really think that he could regenerate and remodel the law of real property by such a Bill as this? Why, he might as well attempt to penetrate the hide of a rhinoceros with a peashooter Ever since the Bill had appeared he had been trying to collect opinions upon its merits, and the highest praise he had heard bestowed upon it was that in its present permissive condition it would be innocuous if it was useless; it would do no harm if it did no good. Now he maintained that every Act of Parliament which did no good necessarily did harm. In the first place, it unsettled the law for nothing; in the next place—and the same thing might be said of all these sham Bills, by whatever name they were called—it served as a stopgap in the way of further legislation. The question got shelved, the public conscience was appeased for a time, and it was only some 10 years afterwards, when a Royal Commission was issued to inquire into the causes of its failure, that the public woke up to the fact that they had had a sham measure palmed off upon them. And now he would conclude by very respectfully tendering a piece of advice to the Government. If this thing was worth doing at all, it was worth doing well. Ne tentes aut perfice. If, in their opinion, the time had come for applying a remedy, let them apply that remedy with a bold and unflinching hand; if, on the other hand, they believed that the subject was not ripe for a settlement, in heaven's name let it be left alone.
To leave out from the word "That" to the end of the Question, in order to add the words "this House, while fully alive to the expediency of making the title to land more uniform and its transfer more simple, cheap, and expeditious, is of opinion that this Bill will not effectually cary out those objects,"—(Mr. Osborne Morgan,)
§ —instead thereof.
§ Question proposed, "That the words proposed to be left out stand part of the Question."
§ MR. GOLDNEY
thought that this was a good Bill, and, having studied the subject carefully for many years, he felt no doubt that this was a step in the right direction—at any rate, it would go 1426 far to make somewhat intelligible to the community at large what had hitherto been confined to the special knowledge of the legal profession. The hen. and learned Member (Mr. Osborne Morgan) had argued that this measure was only a benefit to the rich man. In his (Mr. Goldney's) opinion, on the contrary, it would chiefly benefit the poor man; and it carefully guarded against the danger of becoming entangled with the question of settlements. The Bill was, in his opinion, a great improvement over that of last year, because it removed the prejudice entertained by the legal Profession, and a portion of the public, in regard to its compulsory operation. It also removed another difficulty—namely, the apprehension that the compulsory operation of such a measure would give rise to such a mass of transactions that it would require an army of officials to carry it out within the period prescribed by the previous Act. The hon. and learned Member (Mr. Osborne Morgan) had complained of the failure of Lord Westbury's Act; but that Act was confined to the registration of absolute titles, while the present Bill provided for two objects—the simplification of titles and the transfer of land from one person to another. This distinction between the two measures ought to be well understood. The present Bill really went back to the old system of land tenure, a portion of which still remained under the title of copyhold tenure.
And it being ten minutes before Seven of the clock, the Debate was adjourned till To-morrow.
And it being now Seven of the clock, the House suspended its Sitting.
The House resumed its Sitting at Nine of the clock.